Monday, December 13, 1999
Strip club case put on hold
High court ruling may clarify law
BY BEN L. KAUFMAN
The Cincinnati Enquirer
Uncertain about how much nude dancing ordinances may cover, battling lawyers for the Deja Vu night spot and Clermont County's Union Township are taking a breather.
At their request, U.S. District Judge Sandra S. Beckwith postponed arguments scheduled for last week in in Cincinnati.
Instead, they will all wait until the U.S. Supreme Court decides a case from Erie, Pa., next year.
“It is anticipated that the court's decision in that case will shed light on the issues before the court in this case,” Deja Vu attorney H. Louis Sirkin and township attorney Law rence E. Barbiere wrote. Meanwhile, “the parties have agreed that the Union Township ordinance will not be enforced against Deja Vu.”
Mr. Sirkin and Mr. Barbiere have battled for years over Union Township's attempts to regulate adult entertainment.
Mr. Sirkin initially represented Rumors All Nude Review and persuaded U.S. District Judge S. Arthur Spiegel to strike down the township's original ordinance in 1997. Judge Spiegel said the lack of reasonable time limits for licensing and renewal were constitutionally fatal.
Mr. Barbiere and township officials redrafted the law but Mr. Sirkin, now representing Deja Vu, sued anew.
Union Township's regulation assumes non-obscene and totally nude dancing, Mr. Barbiere said Sunday.
Problems with licensing time limits remain, Mr. Sirkin said, and other flaws include a lack of criteria for an adult entertainment license.
Meanwhile, Rumors and Deja Vu operate in the township's small business district.
Central to any adult entertainment regulatory case is the 1991 Supreme Court decision on Indiana's public indecency statute.
That Hoosier law made it a misdemeanor to display in public “male or female genitals, pubic area or buttocks with less than opaque covering” or to show “the female breast with less than a fully opaque covering of any part of the nipple.”
Dancers from South Bend's Kitty Kat Lounge said that violated their First Amendment freedom of expression when it was applied to non-obscene dancing.
The Supreme Court ruled 5-4 that nude dancing is a form of expression entitled to some First Amendment protection but it could be banned under a general anti-nudity law to protect “order and morality” even when dancing is not obscene.
That opinion by Chief Justice William H. Rehnquist also spoke for Justices Sandra Day O'Connor and Anthony M. Kennedy. They said that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.”
Justices Antonin Scalia and David H. Souter completed the majority but with separate opinions.
Justice Scalia approved the ban and said nude dancing had no protection under the First Amendment.
Justice Souter said Indiana's law was valid because of “the state's substantial interest in combating the secondary effects of adult entertainment establishments.”
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