Justices Back Limits on Nude Dancing

They know it when they see it, and nude dancing is not the kind of free expression that the 1st Amendment was supposed to protect, the Supreme Court said Wednesday.

The 6-3 ruling revived an Erie, Pa., law that requires barroom dancers to wear “pasties” and a “G-string.” It had been challenged by the owners of Kandyland, a nightspot that featured adult entertainment.

The court’s conclusion came as no surprise. The justices upheld a similar law from South Bend, Ind., nine years ago.

For them, the difficulty has been explaining the result. Dancing is expressive and nudity adds an erotic element. And the club owners maintained that their private entertainment should be off-limits to government censorship.

It took four opinions covering 55 pages for the court to announce its conclusion Wednesday.

Two justices--Antonin Scalia and Clarence Thomas--said that Erie’s law had nothing to do with the 1st Amendment. It bans public nudity, not expression, Scalia said.

True, it had been used recently only against Kandyland, Scalia said, but that “simply reflects the fact that Erie has recently been having a public nudity problem not with streakers, sunbathers or hot dog vendors, but with lap dancers.”

Four other justices conceded that nude dancing is a type of expression but ruled that it could be banned anyway because it tends to attract drunks, drug users, prostitutes and other seedy people to a neighborhood.

“The negative secondary effects associated with adult entertainment establishments like Kandyland [are] unrelated to the suppression of the erotic message conveyed by nude dancing,” said Justice Sandra Day O’Connor.

Besides, dancing was not being banned, she said. The costumes were simply upgraded a bit. “The requirement that dancers wear pasties and G-strings is a minimal restriction [that] leaves ample capacity to convey the dancer’s erotic message,” O’Connor wrote. Her opinion in the case (City of Erie vs. Pap’s, 98-1161), was joined by Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer.

In 1991, when the court last upheld such a ban on nude dancing, Rehnquist spoke for his colleagues and described the required G-string as the “narrowly tailored” restriction on free expression.

During the 1950s and ‘60s, the high court struggled mightily to define “obscenity.” In a famous remark, Justice Potter Stewart admitted the difficulty in defining obscenity but said: “I know it when I see it.”

In recent decades, cities have found a variety of ways to regulate or even eliminate adult entertainment.

Some states have used their power over liquor licenses to regulate topless dancing. Other communities use zoning laws to push such establishments away from desirable commercial neighborhoods. The Supreme Court has upheld both practices.

In Erie, city officials decided to use the public indecency law to combat nude dancing. They succeeded in driving Kandyland out of business but only after the adult entertainment establishment had won a 1st Amendment victory in the Pennsylvania Supreme Court.

The justices could have dismissed the case as moot but apparently could not resist deciding the matter.

Two of the three dissenters took the opportunity to admit past mistakes in upholding laws that restricted adult entertainment. In the 1991 case, Justice David H. Souter, in his first term, cast the deciding fifth vote to uphold South Bend’s law. And he did so on the theory that nude dancing could bring crime to an area.

On Wednesday, Souter said that he was wrong then. Cities should have to show evidence of a crime and seediness surrounding such establishments. “I may not be less ignorant of nude dancing than I was nine years ago but, after many subsequent occasions to think further about the needs of the 1st Amendment, I have come to believe a government must toe the mark more carefully than I first insisted,” Souter wrote.