Justices make it easier for cities to ban nude dancing

by Laurie Asseo
THE ASSOCIATED PRESS

WASHINGTON - The Supreme Court made it easier for local governments to ban nude dancing in about 3,000 adult clubs nationwide, ruling Wednesday that a stripper's freedom of expression can be restricted by forcing her to wear pasties and a G-string.

Nude dancing can be banned in an effort to combat crime and other harms that adult entertainment clubs often attract, the justices said in a splintered decision reinstating a public-nudity ordinance in Erie, Pa.

Such dancing is "expressive conduct" but it falls "only within the outer ambit" of the Constitution's First Amendment free-speech protection, Justice Sandra Day O'Connor wrote in the court's main opinion.

The ban promotes Erie's "interest in combating the negative secondary effects associated with adult entertainment establishments," such as crime, and was not aimed at a dancer's erotic message, O'Connor said.

Although the court's rationale was divided, the decision is sure to have broad impact. Nude entertainment is featured in about 3,000 adult clubs nationwide, the justices were told when the case was argued in November.

"We're delighted," said Valerie Sprenkle, Erie's assistant city solicitor. "We didn't ban any expression.... What's being regulated is the means of expression."

Sprenkle said dancers at a nude dancing club in the city "will be required to cover up to the extent required by the ordinance."

John H. Weston, attorney for the former Erie nude dancing club owner who challenged the ordinance, said the ruling may lead to a flurry of attempts to ban nude dancing, but that "sexually oriented businesses will always thrive" because of their popularity.

Weston said the ruling appeared to leave room for club owners to force governments to "defend their assumptions" that such establishments lead to crime.

"Everybody wants to put these businesses out of business," added Jim Waple, general manager of Archibald's, a Washington D.C. nightclub that offers nude dancing two blocks from the White House. "What crime does it cause? We don't have any drug dealers out front. We don't have any prostitutes out front."

However, J. Robert Flores of the National Law Center for Children and Families said, "The Supreme Court has sent an unmistakably clear message to those who exploit women and feed on the lusts of men that the First Amendment does not provide a license for immorality or illegality."

The ruling bolsters the effect of a 1991 Supreme Court ruling that let Indiana ban all barroom-style nude dancing under a state law generally prohibiting public nudity.

That decision was badly splintered, however, and when the Pennsylvania Supreme Court struck down Erie's ordinance, it said the 1991 ruling offered little guidance.

Wednesday's ruling was divided too. The court voted 7-2 to allow bans on nude dancing but voted 6-3 to reinstate the Erie ordinance.

O'Connor said that even if the ordinance "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 ... are free to perform wearing pasties and G-strings."

She compared the nude-dancing ban to a prohibition on burning draft cards, which the Supreme Court upheld in 1968. In that case, the government "sought to prevent the means of the expression and not the expression of antiwar sentiment itself," she said.

Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer joined most of O'Connor's opinion.

Justices Antonin Scalia and Clarence Thomas, in a separate opinion by Scalia, voted to go further. They cited "the traditional power of government to foster good morals."

Justice David H. Souter wrote separately that he agreed with O'Connor's rationale, but that the city needed to provide more evidence that its ordinance was designed to deal with "real harms."

Justices John Paul Stevens and Ruth Bader Ginsburg dissented. Stevens wrote for the two that the court had decided for the first time that an effort to combat secondary effects such as crime "may justify the total suppression of protected speech."

While Souter was among the 7-2 majority in supporting a ban on nude dancing, he voted with the minority, along with Stevens and Ginsburg, against the 6-3 decision to reinstate Erie's specific ordinance.

The ordinance was "aimed directly at the dancers in establishments such as Kandyland" and should be held "patently invalid," Stevens said.

Nick Panos, who used to own the Kandyland nude-dancing club, challenged Erie's 1994 ordinance. He later sold the club to a new owner, Joseph Cunningham, who closed it and opened a similar club, Kandy's Dinner Theater, at a new location with a sign out front that proclaims: "First Amendment Rights Headquarters."