Supreme Court on Nude Dancing

The court has set a disturbing precedent regarding censorship of free speech. In effect, the court has held that the state’s interest in protecting “public morality” may outweigh freedom of expression.

Observing that the state has broad powers to “protect societal order and morality,” Rehnquist concluded in the court’s 5-4 majority opinion that these powers encompass the ability to prohibit “expressive activity” within the confines of a private establishment. The decision therefore begs the fundamental question: Who determines which forms of expression are permissible under the “public morality” test and which are not?

Not surprisingly, the decision has been applauded by those who view themselves as defenders of public morality.

One of the more disturbing aspects of the court’s ruling concerns its willingness to sanction censorship in a private establishment. Few would question the state’s power to regulate nudity in public places. It is an entirely different issue, however, to conclude that the state may rightfully censor what consenting adults choose to watch behind closed doors. The potential ramifications are profound. The state could conceivably have the right to censor private art exhibitions that display nudity or to ban a ballet production which happens to include scenes with nudity.

In his dissent, Justice Byron R. White touches on the essential flaw in the court’s reasoning: “The court’s assessment of the artistic merits of nude dancing should not be the determining factor in this case.” The court, in attempting to defend “public morality,” has made a mockery of the principle of freedom of expression.

D. IAN McKINNON, Studio City