Justice Sandra Day O'Connor wrote that nude dancing "falls only within the outer ambit" of the First Amendment, and that the so-called "secondary effects" question around live adult entertainment was very relevant. Thus has the Supreme Court upheld an Erie, Penn. law against public nudity, which orders exotic dancers to wear at least g-strings and pasties onstage. Erie plans to reinstate the law, but its assistant city solicitor said it was uncertain as to when.
"This is a major sign," said National Cabaret Association lobbyist Mike Ross, "that the 10 percent of (adult clubs) closing we discovered could get even larger. I have a feeling there are more and more cities that are going to come under attack" from similar anti-nudity ordinances. "We're kind of waiting for a somewhat accelerated attack on live adult entertainment."
"This ruling," said First Amendment attorney and Free Speech Coalition board member Jeffrey Douglas, "is a catastrophe."
Writing for the majority in Erie v. PAP's A.M., O'Connor also said erotic dancing wasn't the real aim of the Erie law - the real aim, she wrote, was "the negative secondary effects associated with adult entertainment establishments'' like crime. Ross snorted at that interpretation, saying the Court was, essentially, leaning on an older era when strip clubs were very different from the way they are now.
"(Secondary effects were) proven for the old-type of bars and old-type of facilities, but it hasn't been proven for the new-type bars and facilities," he told AVN On The Net.
Douglas called the secondary effects discussion vile. "It has nothing to do with any principled anything, it's a reflection of a hostility toward sexual expression," he said. "And unless you have an ideological commitment to restricting sexual expression, there is no rationale for allowing a city to rely on facts that are demonstrably false. (O'Connor)'s saying, in essence, 'Okay, so they're being irrational, but even though it's irrational, it's okay.'"
"The difference is that, when I grew up, strip bars were seedy places," Ross said. "Guys didn't invest millions in their business. Now people are doing that. And it changes the whole image of a strip club to a gentleman's club, per se; and that's kind of what we're looking at here. The upshot becomes, at what time do you become professional and at what time do you not?"
He also said there's little if any proof that prostitution occurs inside most live adult entertainment clubs. "We've reviewed reports in and around clubs and there's no prostitution going on," he said. "If you consider lap dancing prostitution under the law, the cops should be making arrests. That's what escorts and prostitutes do, not our entertainers. They don't want to be considered prostitutes, they want to be considered dancers and entertainers. In general, the court usually recognizes that (dancers and entertainers) have First Amendment rights, while prostitution and escort services really don't."
The high court ruling overturns a Pennsylvania Supreme Court decision which struck the Erie law down as an unlawful impingement on First Amendment protection of free expression.
This wasn't the first time the U.S. Supreme Court hit the outer limits of free speech law - a 1991 ruling said nude dancing was entitled to some protection from censorship, being within the First Amendment's "outer perimeters." That ruling let Indiana enforce a state law banning public nudity which included barroom-style nude dancing. But Erie had said that ruling was a "hodgepodge" which gave little if any clear guidance on the question.
Ross was surprised, though, by the new ruling. "Basically, what the (Supreme Court) did was, they upheld a city's powers to be able to do whatever they want as regards regulating our cabarets," he said. "I'm a little bummed out about it, personally. It basically says if the city wants to require them to paint their buildings purple and no nudity, they can do it. I thought the court would come down with a more balanced opinion."
Attorney John Weston, who argued the case before the high court, did not return a telephone call for comment before this story went to press. An aide in his office said he needed more time to "digest" the ruling.
Justices Ruth Bader Ginsburg and John Paul Stevens dissented, with Stevens seeming to agree that the majority put the court in the apparently unprecedented position of ruling that secondary effects might support "total suppression" of free speech. "Indeed," Stevens continued, "the plurality opinion concludes that admittedly trivial advancements of a state's interests may provide the basis for censorship.''
O'Connor was joined by Chief Justice William Rehnquist and Justices Anthony Kennedy and Stephen Breyer, the latter two thus earning Douglas's particular scorn. "This is really a knife in the heart," Douglas says of Kennedy and Breyer's concurrence.
Justices Antonin Scalia and Clarence Thomas sided with the majority, but Scalia argued the case was moot because the Kandyland nightclub which sued over the Erie law had been sold.
"Scalia and Thomas say there is no First Amendment issue at all, nude dancing is not entitled to protection, but they're so far out of their world that even Rehnquist doesn't buy that," says Douglas of the court's two most conservative justices.
Some opponents to the Erie law had feared that, if upheld, it could extend to theater productions in which nudity is included. "I have heard that before," Ross said. "But you never know until a law is passed and they start to implement it. At this point in time, I would tend to believe it's going to become an enforcement question. If the cops go after, say, Hair, that's one thing, but they're going to spend all this time going after us. They do that for fun, for a living, for enjoyment... that's a part of their powers."
O'Connor's view on the "outer ambits" of the First Amendment means, as she wrote further, that Erie's ban on nude dancing is like the ban on burning draft cards, where the government "sought to prevent the means of the expression and not the expression of antiwar sentiment itself." The Supreme Court had upheld the draft card burning ban. O'Connor wrote that requiring g-strings and pasties wasn't exactly a block on the dancers' expression, and the Erie law aimed at conduct - not content.
In a separate opinion, Justice David Souter concurred with O'Connor's analysis but said Erie didn't show the law aimed at "real harms," while the city should have the chance to show them.
The Erie law, passed in 1994, was challenged by former Kandyland owner Nick Panos. He sold the club to Joseph Cunningham, who closed it and opened Kandy's Dinner Theater at a different location. That club is the only Erie club featuring nude dancing. Last June, the Court turned down Panos' bid to have them declare the case moot because he'd sold Kandyland. If the court had agreed, it would have kept his State Supreme Court win alive.
