Nudes on Stage: Dirty Dancing or Art? : The law: Westminster is trying to close a club featuring naked dancers, and the owner is fighting back. But the U.S. Supreme Court is pondering an Indiana case that will probably decide whether such nude performances are constitutionally protected.

You walk into the Shangri-La, a cabaret in a small, out-of-the-way, vacancy-plagued shopping center.

You pay $5 at the door. No one asks whether you want a seat in the dining room. You just turn straight into the no-alcohol bar, where about 20 other men are sitting silently, waiting for the show to begin.

The waitress asks what you want. You order a Coke, $3.50.

After a while, a woman emerges from the lavatory wearing the skimpiest string bikini in the galaxy. She turns on the stereo, ascends to a narrow, lighted stage and begins dancing and smiling at the front-row patrons.

She strides back and forth, turning, gyrating, contorting to the music. And she begins to remove her bikini. By the end of the song, she is flamboyantly naked. A few of the men applaud. She leaves the stage.

Is she making an artistic statement? Or is she just foolin’ around?

It’s not a question that burdens the patrons, some of whom were aiming wadded dollar bills into the dancer’s G-string.

It doesn’t trouble the Westminster police either. They say the cabaret, which offers the only live nude dancing in Orange County, opened last December without the required live entertainment permit. So they raided the place last month and led away the owner, four employees and a dancer in handcuffs.

But it’s an important question to the U.S. Supreme Court, which is pondering an Indiana law banning all public nudity. Its ruling, which will probably decide whether nude dancing has constitutional protection, is expected in July. It could affect not only Westminster’s attempts to hustle the Shangri-La out of town, but also all performers and artists who deal with sexuality.

Westminster police are blunt about their goal. “We’d prefer to make it known we don’t want this in the city,” said Lt. Robert Burnett as he stood in the door of the cabaret just after the raid. “If they want to be here, they’ll have to fight to be here.”

The fight began almost immediately. Shangri-La owner Theron M. Smith sued in Superior Court, asking that the city’s permit ordinance be declared unconstitutional. The ordinance requires a permit for any kind of live entertainment, and it gives the City Council complete discretion in deciding whether to grant one.

“It’s going to be a dogfight,” predicted Costas Ladikos, the Brea attorney representing the city.

“Most cities realize you can’t ban nude dancing and don’t waste their money trying,” said Shangri-La’s attorney, Roger Jon Diamond of Santa Monica. “But instead of fighting smog and toxic waste,” Westminster “is trying to get everyone excited about nudity.”

Discovery of an adult bookstore in Westminster, along with a suspicion that another business was a front for prostitution, prompted the City Council last September to declare a moratorium on all permits for “adult” businesses while it rewrites its regulations.

Two months later, Smith went into City Hall and applied for a restaurant business license for Shangri-La.

Smith had been looking for a new location. His repeated court battles had kept Los Angeles County officials at bay for nearly four years, but the Shangri-La finally was expelled last year from its longtime home in an Azusa shopping center.

Mobile-home residents nearby had complained of noisy and unseemly goings-on in the parking lot, but the Shangri-La closed not because it was obscene or noisy. Smith continued business after new zoning regulations would no longer permit such a business there. He eventually was convicted of violating the zoning code, a misdemeanor, was fined $2,350 and placed on three years’ probation.

The Westminster Shangri-La had been open only about a month when the raid came. Now the cabaret is closed, the battle lines are drawn, and both sides say the war could be long and costly.

“Maybe they’re just trying to test the city,” Mayor Charles V. Smith said. “Our message is, we won’t tolerate (the Shangri-La), and we’ll do everything to get rid of it.”

Nude entertainment has been around for decades, having appeared in bars way back in the ‘60s. Weren’t all the issues settled back then?

Not really. Pepperdine University law professor Bernard James, who analyzed the pending Indiana case for the American Bar Assn., says local governments were able to thin the ranks of nude and topless bars without the U.S. Supreme Court ever confronting the central question: Is an erotic performer making a constitutionally protected expression?

No one gave it much thought until early in the 20th Century, when a campaign emerged to keep erotic French postcards from being mailed or brought into the country, James said. “Many federal mail regulations stem from this. It made nudity an acceptable topic for political discussion.”

After World War II, soldiers exposed to the wide-open, sexy entertainment of Europe brought back erotic books, magazines and photographs, and a domestic mail-order industry grew up to supply more. The backlash came in the ‘50s, with often-successful attacks on mail-order eroticism and stores that sold such materials.

When topless and nude bars emerged in the ‘60s, authorities moved against them on the same basis: obscenity. But here the approach did not work well. Some bars were making big profits--one owner confessed to a 50% profit margin--and they could afford to battle prosecutors in court.

And although one or even several performances might be ruled obscene, and the dancers and bar owners punished, judges refused to assume that future dances would also be obscene. Bans on all nudity were too broad and vague, courts ruled.

Late in the decade, many such bars remained open, and a Buena Park agency for dancers said more than 50 topless and nude dancers were employed full time in Orange County.

Local governments switched tactics and began regulating nudity in bars through zoning laws. Such bars were limited to certain zones requiring special permits that could be made difficult and costly to obtain.

The Orange County district attorney resorted to a state law passed in 1913 designed to attack prostitution along San Francisco’s Barbary Coast. The Red Light Abatement Act allowed courts to close down places in which “lewdness, assignation or prostitution” was habitually practiced.

The California Department of Alcoholic Beverage Control passed regulations controlling topless entertainment and banning nude entertainment in places were liquor is served, and those regulations survived review by the U.S. Supreme Court.

By the mid-’70s, local law enforcement was claiming at least partial victory. “Times have pretty much changed,” Costa Mesa Police Lt. Bob Hamilton said in 1976. “The people who used to really get off on bottomless can get their hard-core raunchies at bookstores or theaters.”

Most of the bars had withered away, and those remaining open had cleaned up their acts considerably. Before then, “the dancing was real raunchy,” said Diamond, Shangri-La’s attorney. “Customers were up on the stage fooling around with the dancers.”

Survivors such as the Mustang Club and Paddy Murphy’s in Santa Ana kept G-strings on their dancers, made changes to their buildings and were declared in court to be theaters exempt from bar regulations. Paddy Murphy’s is still operating, although it is believed to be the only topless bar left in Orange County. An arson fire burned down the Mustang Club in 1988.

“As the law stands now, governments can simply make it impractical to operate such businesses,” said James, the Pepperdine law professor. “You can zone it and regulate it in other ways.

“But there’s the assumption that nude dancing, unless it’s obscene, can be expressed somewhere, somehow. And that’s the assumption being challenged in the Indiana case. The court has not taken up the issue before.”

Indiana’s law, enforced against two nude-dancing clubs in South Bend, forbids nudity in any public place, period. State attorneys argue that nude dancing is merely “conduct” and has no constitutional protection.

A federal appeals court in Indiana disagreed, ruling that nude dance communicates eroticism and sensuality. That is constitutionally protected expression, even if artistically and aesthetically inferior, the court said.

But later, a different federal appeal court in Missouri ruled in a similar case that nude dancing is not expression protected by the First Amendment.

The U.S. Supreme Court is expected to resolve the conflicting decisions in July.

Westminster’s moratorium on “adult” business permits allows time to wait until the Supreme Court decides whether nude dancing can be banned altogether.

In the meantime, the Shangri-La is playing by the current rules. It is asking a Superior Court to declare Westminster’s ordinance unconstitutional, arguing that the ordinance allows the city to ban nude dancing indirectly. “They require a permit, then they won’t give you one,” Diamond said.

To avoid state regulations on bars, the Shangri-La serves no liquor. And to fend off an obscenity prosecution, the dancers are instructed to “make sure there is music playing, make sure you keep dancing and keep with the music,” Diamond says. If it’s dancing, it’s protected, he said.

James predicts that the court will not strip nude dancing of all constitutional protection. That would call into question virtually all performances involving nudity and prompt a parade of obscenity appeals, each with a videotape justices would have to view and judge.

But the case is of “immense importance” because it may “broade or narrow protection for sexually oriented expression,” James says. “It’s going to be a landmark case.”

The issue seems much simpler on Garden Grove Boulevard at Golden West Street, where a patron caught up in the Shangri-La raid complained bitterly: “What’s the big deal? They dance naked. So what?

“I like it, they don’t,” he said, gesturing toward police. “I guess there aren’t enough burglaries in town to keep them busy.”

Countered Mayor Smith: “We’ll do whatever we have to do to keep them out of Westminster. . . . The clientele that go there, the other things it brings in--the City of Westminster is a very nice residential community, and we’re not going to allow it to be ruined.”