Court Upholds Nude Dancing Limits

W A S H I N G T O N, March 29, 2000 -- The Supreme Court made it easier for local governments to ban nude dancing in about 3,000 adult clubs nationwide, ruling today that a stripper’s freedom ofexpression can be restricted by forcing her to wear pasties and a G-string.

Nude dancing can be banned in an effort to combat crime andother harms that adult entertainment clubs often attract, thejustices said in a splintered decision reinstating a public-nudityordinance in Erie, Pa.

Such dancing is “expressive conduct” but it falls “onlywithin the outer ambit” of the Constitution’s First Amendmentfree-speech protection, Justice Sandra Day O’Connor wrote in thecourt’s main opinion.

The ban promotes Erie’s “interest in combating the negativesecondary effects associated with adult entertainmentestablishments,” such as crime, and was not aimed at a dancer’serotic message, O’Connor said.

About 3,000 Nude Clubs Across Nation Although the court’s rationale was divided, the decision is sureto have broad impact. Nude entertainment is featured in about 3,000adult clubs nationwide, the justices were told when the case wasargued in November.

“We’re delighted,” said Valerie Sprenkle, Erie’s assistantcity solicitor. “We didn’t ban any expression. … What’s beingregulated is the means of expression.”

Sprenkle said dancers at a nude dancing club in the city “willbe required to cover up to the extent required by the ordinance.”

John H. Weston, attorney for the former Erie nude-dancing clubowner who challenged the ordinance, said the ruling may lead to aflurry of attempts to ban nude dancing, but that “sexuallyoriented businesses will always thrive” because of theirpopularity.

Weston said the ruling appeared to leave room for club owners toforce governments to “defend their assumptions” that suchestablishments 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 outfront. We don’t have any prostitutes out front.”

‘Unmistakably Clear Message’ However, J. Robert Flores of the National Law Center forChildren and Families said, “The Supreme Court has sent anunmistakably clear message to those who exploit women and feed onthe lusts of men that the First Amendment does not provide alicense for immorality or illegality.”

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

That decision was badly splintered, however, and when thePennsylvania Supreme Court struck down Erie’s ordinance, it saidthe 1991 ruling offered little guidance.

Today’s ruling was divided too. The court voted 7-2 to allowbans on nude dancing but voted 6-3 to reinstate the Erie ordinance.

O’Connor said that even if the ordinance “has some minimaleffect on the erotic message by muting that portion of theexpression 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 burningdraft cards, which the Supreme Court upheld in 1968. In that case,the government “sought to prevent the means of the expression andnot the expression of antiwar sentiment itself,” she said.

Most of O’Connor’s opinion was joined by Chief Justice WilliamH. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer.

Justices Antonin Scalia and Clarence Thomas, in a separateopinion by Scalia, voted to go further. They cited “thetraditional power of government to foster good morals.”

Justice David H. Souter wrote separately that he agreed withO’Connor’s rationale, but that the city needed to provide moreevidence that its ordinance was designed to deal with “realharms.”

Justices John Paul Stevens and Ruth Bader Ginsburg dissented.Stevens wrote for the two that the court had decided for the firsttime that an effort to combat secondary effects such as crime “mayjustify the total suppression of protected speech.”

While Souter was among the 7-2 majority in supporting a ban onnude dancing, he voted with the minority, along with Stevens andGinsburg, against the 6-3 decision to reinstate Erie’s specificordinance.

The ordinance was “aimed directly at the dancers inestablishments such as Kandyland” and should be held “patentlyinvalid,” Stevens said.

Erie’s 1994 ordinance was challenged by Nick Panos, who used toown the Kandyland nude-dancing club. He later sold the club to anew owner, Joseph Cunningham, who closed it and opened a similarclub, Kandy’s Dinner Theater, at a new location with a sign outfront that proclaims: “First Amendment Rights Headquarters.”