Thursday, March 30, 2000
Ruling may affect local nude dancing
High court calls ban OK attempt to deter crime
BY BEN L. KAUFMAN
The Cincinnati Enquirer
The U.S. Supreme Court on Wednesday encouraged Union Township's attempts to control adult entertainment in Clermont County.
Justices said the Erie, Pa., ban on all public nudity could cover nude dancing without violating First Amendment freedom of expression.
More important to Union Township, the high court also said the ban was an acceptable attempt to prevent or reduce such secondary impacts as crime attributed to nude dancing clientele.
Wednesday's 6-3 decision goes further than any regulations attempted by Union Township to stop nude dancing at Deja Vu, 516 Batavia Pike.
The ruling “sounded pretty good to me,” said township attorney Lawrence E. Barbiere, but he would not elaborate until he studied the opinion.
Deja Vu attorney H. Louis Sirkin also found something to applaud:
Union Township can't ban public nudity or nude dancing, because Ohio law says exposed breasts or pubic areas are not necessarily indecent.
Rather, the three-year court battle focuses on licensing rules that Mr. Sirkin says violate the rights of Deja Vu and its employees.
If the township tries to justify its licensing with studies from other communities that “prove” nude dancing imposes negative secondary effects on a community, the Supreme Court “clearly gives us the right to rebut that,” Mr. Sirkin said.
Until Wednesday, Mr. Sirkin said, courts assumed such studies were valid and it was very difficult to argue other wise.
Mr. Sirkin would not predict his next move until he talked with Mr. Barbiere.
Action in the Deja Vu case was postponed late last year after U.S. District Judge Sandra S. Beckwith denied an injunction against the township. Rather than press on, everyone agreed to wait until the Supreme Court ruled on the Erie law.
Meanwhile, Union Township has not enforced the challenged rules.
Erie made it illegal to knowingly or intentionally appear in public in a “state of nudity,” but female barroom dancers could perform in pasties and a G-string. Pennsylvania's highest court said the law infringed on First Amendment freedom.
Wednesday, the Supreme Court said nude dancing is “expressive conduct” but it “falls only within the outer ambit” of First Amendment protection.
In the main opinion, Justice Sandra Day O'Connor conceded that the nudity ban might have “some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped.”
However, she said, women are free to perform wearing pasties and G-strings, and that “leaves ample capacity to convey the dancer's erotic message.”
A key point was her belief that the nude-dancing ban was not aimed at the protected erotic message. Rather, Justice O'Connor said, it furthers the community's “interest in combating the negative secondary effects associated with adult entertainment establishments.”
Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer joined her opinion.
Justices Antonin Scalia and Clarence Thomas, in a separate opinion, upheld the Erie law on different grounds. They cited “the traditional power of government to foster good morals ... and the acceptability of the traditional judgment ... that nude public dancing itself is immoral.”
Mr. Sirkin found that reasoning “very dangerous for the First Amendment” if applied to other forms of protected expression.
On the other hand, Mr. Sirkin praised Justice David H. Souter, who would have sent the case back for Erie to prove its ordinance was designed to deal with “real harms” to the community.
Justices John Paul Stevens and Ruth Bader Ginsburg dissented even more forcefully. They said the court had decided for the first time that secondary effects “may justify the total suppression of protected speech. ... Indeed, the plurality opinion concludes that admittedly trivial advancements of a state's interests may provide the basis for censorship.”
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