Supreme Court Makes Dangerous Ruling on Nudity

by Steve Chapman

No, the city is not trying to prevent people from baring all in department store fitting rooms and health club saunas, though the law seems to apply in such venues. It is simply trying to get at all "places of entertainment" that feature lavish displays of flesh.

Well, not all. The city could be talking about theatrical plays, some of which require actors to doff their clothes. But a lawyer representing Erie says it would never use the ordinance to block a production of "Equus," "Hair" or "Oh! Calcutta!" even though all have nude scenes.

Let's see if I've got this straight. In Erie, you can get naked in all sorts of places where lots of people can see you. You can fully disrobe in a locker room. You can do it on stage in a play. I assume you can do it to model for an art class. According to one member of the city council who supported the measure, you can do it to go skinny-dipping in the high school pool. All sorts of "public" nudity are permitted.

So where, aside from a busy street at high noon, does the prohibition apply? At a local establishment called Kandyland, where customers would willingly pay to watch young women gyrate in the buff. As one council member put it, "We're not prohibiting nudity, we're prohibiting nudity when it's used in a lewd and immoral fashion."

Last week, the U.S. Supreme Court said that was just fine. It upheld the law against a challenge from the owners of Kandyland, who said it impinged on their right to freedom of expression.

Nude dancing, like it or not, happens to be a form of expression covered by the First Amendment. Even this Supreme Court says so. But as Justice Sandra Day O'Connor said, "it falls only within the outer ambit of the First Amendment's protection."

Hmm. Hawaii is in the "outer ambit" of the U.S. military's protection, which I trust doesn't mean we would let the North Koreans attack it with impunity. But a majority of the court is willing to let the Erie municipal government punish the type of "protected" expression that goes on at Kandyland.

Why? Because the council says that letting women dance nude in a nightclub would cause trouble by creating "an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects." This concern, concluded the justices, is sufficient to justify the city's remedy: Require the dancers to wear pasties and G-strings.

It's hard to decide which is more ridiculous: The court's insistence that this regulation does not amount to censorship, or its pretense that a few scraps of fabric will eliminate the alleged side effects of erotic dancing. Imagine a law forcing art museums to put fig leaves over the private parts of nudes depicted in paintings or sculpture, or forbidding the Dance of the Seven Veils in the opera "Salome," or ordering video stores to delete Kate Winslet's unclothed torso from the movie "Titanic." It would be laughed out of the Supreme Court.

In short, nudity may not be banned outright. Nudity in entertainment may not be banned outright. Even nude dancing may not be banned outright. The only thing that may be banned outright is nude dancing whose purpose is judged to be "lewd and immoral." But a finding of immorality by a lawmaking body is not sufficient to justify infringement on free expression. If it were, all art and literature would be fair game.

It's not at all clear that nude dancing clubs have worse "secondary effects" than many other nightclubs and restaurants. Plenty of countries in Western Europe have far less violent crime than we do, even though they are much more laissez-faire about sex and nudity.

If places like Kandyland cause special problems, it's absurd to think those ills will vanish once the dancers have covered a few strategic places. Any secondary effects can and should be addressed directly, by enforcing laws against public drunkenness, violence or prostitution, or by zoning them into certain areas to minimize their impact. We don't close down all taverns because some are frequented by thugs or prostitutes. If a child molester is inspired by "Lolita," we don't arrest the book.

A majority of Supreme Court justices are so discombobulated by the thought of erotic dancing that they insist they are upholding the First Amendment while allowing it to be roundly abused. But this is one case where the emperor clearly has no clothes.