The fight for federal constitutional protection of totally nude dancing was all but lost today. In a 6-3 decision, the U.S. Supreme Court held that a local government can completely ban nude dancing and require that the dancers wear g-strings and pasties. City of Erie v. Pap's A.M., 00 C.D.O.S. 2443 (March 29, 2000). Although the opinion has a few potential loopholes, legal protection for the right to see your favorite adult video actress in all her glory will now have to be sought primarily under state law.
In the early '90s, the number of nude clubs in Erie, Pennsylvania, increased, causing much distress and hand-wringing among the goodwives and burghers. The city council amended its old anti- public nudity ordinance, making it clear that the prohibition against total nudity applied in "enclosed places . . . open to the general public" (that would be strip clubs) and applied to persons who exposed their genitals, buttocks, female nipples, pubic hair, natal cleft, perineum anal region, or pubic hair region (that would be strippers). The ordinance thoughtfully exempted children under ten and women breastfeeding children under two. (The record does not state whether a local entrepreneur opened a lactation-themed club in response.)
The Erie city council didn't hide the fact that censorship was its intent -- it exalted in the fact. The ordinance stated that it was being passed "for the purpose of limiting a recent increase in nude live entertainment within the City." All of the city council members who voted in favor of the ordinance stated on the record that their intent was to ban nude dancing at strip clubs.
So this seemed like a simple case. Eight members of the U.S. Supreme Court had earlier held that nude dancing, while at the outer edge of protection, was in fact protected by the First Amendment. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). And, prior to that, the Court had held that, while adult movie theaters could be forcibly dispersed, they could not be banned. Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). So, by mixing these two precedents together and adding a dash of clearly expressed censorship of private communicative activity by the government, striking down this ordinance and sending it the way of the Fugitive Slave Law seemed a no brainer. It was to the Pennsylvania Supreme Court.
The Supremes in Washington disagreed. In today's fractured opinion (more on that later), the court upheld the ordinance on the following grounds:
First, nude dancing is expressive conduct, and conduct -- as opposed to the ideas expressed -- can be regulated so long as the regulation is designed to stop the harmful "secondary effects" of the expressive conduct. In the most famous case of this kind, the Court held back in 1968 that Congress could prohibit the burning of draft cards because Congress wasn't banning anti-war expression, it was banning a specific activity that mucked up the administration of the war. So nude dancing can be banned if the city council's intent is not to ban nude dancing but to combat secondary effects like prostitution and crime by, as it happens, banning of nude dancing. If you can follow that logic, you are ready for law school.
(Wait, you ask, didn't a majority of the Erie city council say outright its real goal was to ban nude dancing? Yes, and the Supreme Court plurality opinion makes like Nancy Kerrigan and skates right over that fact.)
Second, the local government does not have to prove that its community is actually suffering from any "secondary effects." The legislative staff can review studies conducted in other cities or just read court opinions on the topic. Then they can draft laws which ban nude dancing in order to combat harmful effects that there is absolutely no proof are occurring. In his dissent, Justice David Souter gets especially worked up over this ludicrous rule.
Third, while a dancer could not express herself quite so well with g-strings and pasties as she could nude, any effect on the overall expression is tiny. Therefore, the restriction passes the legal requirement of not being too great.
Now, you and I know this is nonsense. That's why we drive across town to an all-nude club and rarely step into the topless or go-go place down the street. And, to their credit, Justices John Paul Stevens and Ruth Bader Ginsburg (the old chick Clinton appointed) said exactly that.
So there you have it. If harmful secondary effects could result (no proof needed), nude dancing can be banned, and federal law will not intervene.
There are a few rays of hope.
This is a plurality opinion signed by less than a majority of the justices and therefore lacking the binding force of law. It is however _extremely_ persuasive, and federal courts will almost certainly follow it. (Justices Antonin Scalia and Clarence Thomas concurred in the result but for different reasons.)
The studies of other cities' secondary effects must be "reasonably believed to be relevant to the problem." This means that a First Amendment attorney can argue that it was not reasonable for the government to believe that a study from the 1970s about conditions in the Baltimore Block, the Boston Combat Zone and old 42nd Street would be relevant to a nude club with lighted and secured parking located by its lonesome off the 5 near Fresno. And a local government's findings of fact can be challenged.
Finally, but fundamentally, there is state law. State constitutions can confer greater freedoms than the federal constitution, which only establishes a minimum level of protection.
My guess is that state law will represent the next campaign of this war. The battle for protection under federal law is essentially lost.
Crying in his $25 "lady's drink,"
Regarding California, N.P. Trist did not say,
"We stole that fair and square."