Thursday, July 01, 1999
City defends sting against 'nude interactive conduct'
Exotic dancer claims Constitution protects such acts
BY BEN L. KAUFMAN
The Cincinnati Enquirer
“Nude interactive conduct” is not protected by the First Amendment, the city of Cincinnati argued this week in its motion to dismiss a suit by an exotic dancer.
The suit was filed by Melissa Kelly, who danced and also managed Brittany's Exotic Dancers.
She says police put her out of business with a sting involving some of the same officers who hired her dancers for their parties.
Overturned on appeal
Ms. Kelly's conviction for promoting prostitution was overturned on appeal because of insufficient evidence. Her dancers' prostitution trials ended in acquittals.
Ms. Kelly sued this year, and Assistant City Solicitor Richard Ganulin responded Tuesday that she was claiming First Amendment and privacy rights she did not have.
Looking at what Ms. Kelly claimed was protected freedom of expression, Mr. Ganulin said Brittany's dancers:
• Appeared to have had oral sex with each other although one employee said it was simulated.
• Lap-danced on customers for about 10 seconds at a time and also rubbed customers' chests and thigh.
Mr. Ganulin said those activities were not the kind of expressive conduct protected by the Constitution and Ms. Kelly cannot claim damages for alleged violations with her dancers' constitutional rights.
“Whether or not the nude interactive conduct is prostitution under the laws of the state of Ohio, the sale of a service of that nature is beyond the outer perimeter of the 1st Amendment,” Mr. Ganulin said.
"Fun' of customer
“A prostitute sells his or her services for the "fun' of the customer. (Ms. Kelly) sells her nude interactive conduct for the "fun' of the customer.
“Neither a prostitute or Brittany's employees are brought within the protection of the First Amendment because customers are having "fun.'”
He said nude dancing on a bar stage can be protected by the First Amendment but “the nude services that Brittany sells to a specific private customer, for that customer's private purposes” is not.
Mr. Ganulin said nude interactive services have no constitutional protection from investigation as possible prostitution or other illegal activity.
As far as Ms. Kelly's personal rights when she performed nude in teractive conduct, there is no evidence that authorities “infringed on her right to freedom of expression,” Mr. Ganulin said.
Finally, Mr. Ganulin rejected the claim that police violated Ms. Kelly's constitutionally protected right to privacy by videotaping her nude interactive services.
Mr. Ganulin said she performed among strangers in someone else's home and had no expectation of privacy.
It could be months before the case is resolved.
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