Source: Reuters
By: James Vicini
(WASHINGTON) — Nude dancing lost at the U.S. Supreme Court on Wednesday.
Nine years after its last ruling on nude dancing, the nation’s highest court decided that erotic entertainment performed without any clothes deserved only limited freedom-of-expression protections under the U.S. Constitution.
The justices by a 6-3 vote upheld a law adopted by Erie, Pennsylvania, that made it a crime to appear nude in public places, including “taverns, restaurants, clubs, theaters, dance halls, banquet halls or halls limited to specific members.”
The ban on nude dancing forced the dancers to perform their erotic entertainment wearing pasties and G-strings.
The decision could have broad impact, allowing other cities to ban erotic entertainers from appearing topless and bottomless in the estimated 3,000 adult entertainment clubs in the United States.
Justice Sandra Day O’Connor said in the court’s main opinion that the type of nude dancing at issue was expressive conduct that falls within the outer reaches of the Constitution’s First Amendment’s protections.
She described the law as a general prohibition on nudity. ”It bans all public nudity, regardless of whether that nudity is accompanied by expressive activity,” said O’Connor, one of two females justices.
Even if Erie’s public nudity ban “has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped,” the dancers still can perform wearing pasties and G-strings, she said.
The law “regulates conduct, not speech,” O’Connor said.
Harmful Secondary Effects
She said one purpose of the law was to combat the harmful secondary effects associated with nude dancing, such as crime and threats to public health and safety.
The justices reversed a ruling by the Pennsylvania Supreme Court striking down the ordinance for unconstitutionally burdening free expression.
The law had been challenged in court by Pap’s A.M., owner of a nude dancing establishment called Kandyland. Critics had said the law was adopted for the sole purpose of outlawing nude dancing.
O’Connor said the case was not moot or irrelevant even though Kandyland’s owner has sold the property, closed the club and has no plans to get back in the adult entertainment business.
The main part of O’Connor opinion was joined by Chief Justice William Rehnquist and Justices Anthony Kennedy and Stephen Breyer.
Justices Antonin Scalia and Clarence Thomas agreed that the law should be upheld, but cited different reasons.
“The traditional power of government to foster good morals and the acceptability of the traditional judgement … that nude public dancing itself is immoral have not been repealed by the First Amendment,” Scalia wrote.
Justice David Souter in a separate opinion said he agreed with the court’s analytical approach, but dissented on the grounds that Erie had failed to show the law was reasonably designed to counter “real harms.”
Justice John Paul Stevens, joined by Justice Ruth Bader Ginsburg, dissented, describing the ordinance’s ban as ”censorship of protected speech.”
He added, “Far more important that the question whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the court endorses today.”
In its 1991 ruling, the Supreme Court said nude dancers can be prosecuted under public indecency laws, and that nude dancing falls “within the outer perimeters of the First Amendment.”
