The Law and the Skin Trade in the Windy City

US Supreme Court to Take Another Glance at Nude Dancing

By J. D. Obenberger, Attorney at Law
© 1999 J. D. Obenberger, All Rights Reserved

I do not believe that the First Amendment is a game.

Let me say it again: The First Amendment is no game. It is deadly serious. It is the cornerstone of the American Constitutional system of government. Without free expression, there is no other freedom worthy of mention. No society can be free without freedom of expression. I emphasize this because when last month’s article was typeset, the person at the Gentleman’s Pages keyboard who transcribed my article left out the word “not”, and that changed the very essence and intent of my words. The entire object of my words was to challenge those in local government who, having once taken an oath to support, uphold, and defend the Constitution (including, of course, the First Amendment) try to find dodges around it in order to control what you can see, hear, read, and view.

The focus of this month’s column is a critical story that has gone virtually unreported here in Chicago. While the mainstream Chicago Media was looking and reporting the other way, a major national First Amendment story has begun to play out before the highest court in the land.

The decision to come in this case from the United States Supreme Court has the potential to either shut down all nude dancing in the Untied States or to clarify the powers of local and state government in regulating it. It is a case that all of us who work in or with the adult entertainment industry, and customers, too, must watch closely.

The United States Supreme Court granted certiorari (review) in May and will take a look again at nude erotic dancing during its October, 1999 term, in a case involving a decision of the Supreme Court of Pennsylvania in Pap’s A.M. Kandyland v. The City of Erie, 719 A.2d 273 (Pa., 1998). In that case, the highest court of Pennsylvania struck down an Erie ordinance banning public nudity, including live expressive performance nudity, as a violation of the United States Constitution.

In 1994, the City Council of the blue-collar, Lake Erie town of Erie, Pennsylvania passed an ordinance prohibiting public nudity. Kandyland and at least two other erotic dance establishments were operating in Erie, and the law clearly had them in its sights: The four members of the council in favor said, at the time of the vote, that he or she was casting the vote for “morality”. Two members voted “no”. When the Erie Playhouse and the Roadhouse Theater came before the City Council to complaining that this ordinance would outlaw productions of Hair and Equus and other mainstream stage presentations which include nudity, they received assurances from the City that the enforcement of the law would be “subjective”, and in fact, when the Roadhouse Theater presented Equus after enactment of the ordinance, it was not prosecuted.

(That kind of thought control is exactly what the First Amendment outlaws. When municipal officials, not objective laws unrelated to expression, can control matters of what is performed and how it is performed, that is where censorship is born. Municipal and State officials are not elected to act as arbiters of taste or art for you and me. As Americans, we get to judge for ourselves.)

So Kandyland filed suit, and at the trial court level, they won, getting a preliminary injunction against enforcement of the Erie law, the trial court declaring it unconstitutional. Then the City of Erie appealed, and the intermediate appellate court, the Commonwealth Court, reversed, finding the law to be constitutional.

And then the Pennsylvania Supreme Court took the case. In a unanimous decision, the Pennsylvania Court found the law to violate the First and Fourteenth Amendments to the Untied States Constitution. It was an amazing and courageous decision.

As those of you who read this column regularly know, the reason that public nude performance dancing is illegal in Indiana is because of the decision of the Untied States Supreme Court in a case entitled Barnes v. Glenn Theater, 501 U.S. 560 (1991). That is precisely the case that the Pennsylvania high court had to grapple with: To follow Barnes and uphold the ordinance, or to distinguish or avoid Barnes and to declare the ordinance repugnant to the Constitution. The Supreme Court in Barnes reversed the holding of the United States Court of Appeals for the Seventh Circuit, here in Chicago, which had declared the state-wide ban on nudity passed by the Indiana legislature to be unconstitutional. Barnes itself is worth several hundred pages of analysis, and a full explanation is beyond the scope of the space given to this column. What is significant in the present situation is that, of the nine members of the United States Supreme Court, no more than three of them were able to agree to sign their names to any particular opinion. That means that there was no “majority opinion” of the court.

Chief Justice Rehnquist and Justices O’Connor and Kennedy together agreed in a plurality opinion (a written opinion agreed to by less than a majority of the voting members of the Court) that upheld the Indiana law banning nudity because, in essence, although they said that they believed that nude dancing was entitled to some constitutional protection, they felt that the law, dating from the 1830’s was not directed at expression, not targeted at performance dancing, but simply was an across-the-board measure designed to uphold community morals whether on stage or at the beach. They cited and applied as precedent a test articulated in an earlier decision of the U.S. Supreme Court which upheld a conviction for draft-card burning, United States v. O'Brien, 391 U.S. 367 (1968). While the O’Brien court agreed that there might be an expressive element to burning a draft card, the conviction was nevertheless upheld because the Selective Service Act protected a substantial and constitutional government purpose unrelated to expression and the means employed were narrowly tailored to uphold the interest, according to the Court. Of more than passing interest, perhaps, is the Chief Justice’s mention in the Barnes plurality opinion of the fact that the original Indiana law predated nude barroom dancing - - passed as it was in the 1830’s - - by many decades. The implication was that the Indiana Law, like the Selective Service Act, only incidentally intruded on expression, without any intention to do so.

Justice Scalia, writing only for himself in Barnes, and finding no other justice to side with him, also believed that the Indiana law was constitutional, but for a different reason. In his opinion, since the law was not directed at expression, but simply at nudity itself, the First Amendment did not come into play at all, and that this was a simple matter the of the state protecting what he considered to be - - or the State Legislature considered to be - - good public morals. He did not think that nudity in dance itself was an expressive part of the performance, but a “condition”, and did not feel that it justified First Amendment protection. (Taken to its logical conclusion, Justice Scalia’s limited view of expression would reach the absurd conclusion that costumes, sets, lights, sound effects and other non-verbal aspects of theatre are not communicative in nature or constitutionally protected.)

Justice Souter, also writing only for himself, and also finding no other justice in agreement with his opinion, came also to the conclusion that the Indiana Ban was constitutional. His reason, however, was not based on claims that the state had vast and sweeping powers to control public morals, regardless of “incidental” effects on expression: Instead, he discerned (or created out of whole cloth) that the motive of the Indiana legislature was the protection of the public from what are called in the trade, the allegedly evil “secondary effects” of adult entertainment industry, such as urban blight. Justice Souter also claimed, with the Rhenquist plurality, to be following O’Brien. In support of his view that banning nudity was not content-oriented limitation of expression, he cited Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), a case in which the Supreme Court upheld locational restrictions on where adult entertainment establishments can be prohibited.

Justices White, Marshall, Blackmun, and Stevens, in a dissent with four votes, a greater number than that of the plurality opinion, disagreed with all of this, and would have upheld the Seventh Circuit, striking the Indiana law down as an unconstitutional restriction on free speech.

Now, back to the main part of this story. In determining federal constitutional principals, State Supreme Courts must, of course, follow precedent set by the U.S. Supreme Court. The Pennsylvania Supreme court tried every which way to find direction or guidance concerning the Erie ordinance from Barnes because the Erie ordinance was similar to the Indiana law at issue in Barnes. In the end, the highest court of Pennsylvania gave up, calling the U.S. Supreme Court’s result in Barnes “hopelessly fragmented” and a “hodgepodge” and said that the “Barnes court splintered and produced four separate, non-harmonious opinions.” Their conclusion is that Barnes is not binding precedent on lower courts because no single theory commanded five votes. They did note that except for Scalia, all of the justices felt that the nude dancing received some measure of constitutional protection. In the end, they found that there was an unmentioned purpose and intent in the ordinance to “impact negatively on the erotic message of the dance”, found that the purpose of the ordinance was therefore improper, determined that the ordinance could not meet the scrutiny demanded in expression cases, and asserted that it was void and unconstitutional.

It may not be lawyerlike to say in public, but the feathers of the United States Supreme Court are not often so violently ruffled as they were by the Pennsylvania high court. The language of the Pennsylvania Court is strong, direct, and frankly tells the highest Court of the land that its result in Barnes is worthless as a matter of law. The question now, with far-reaching implications in this industry, is how the Supreme Court will react to what it may view as affront and usurpation.

Justices Breyer, Ginsburg, and Thomas are new to the Court since Barnes was decided, the dissenters White, Blackmun, and Marshall are gone from the Court, leaving Justice John Paul Stevens as the only sitting Barnes dissenter. Chief Justice Rehnquist is still there, as are the two justices who joined his plurality opinion. It is certainly possible that Kennedy or O’Connor, with additional experience and perspective on the Court may no longer agree with the Chief Justice. But it is also possible that the shift may be against the protection of expression. While some will welcome the news that the issues of Barnes will be revisited by the High Court next term, with the hope that the expressive nature of expressive nude dancing can be affirmed and protected, it cannot be denied that this is a moment fraught with danger to customer, performer, and operator.

Perhaps the most sensible determination of the issue is for the Supreme Court to distinguish Barnes and the facts that gave rise to it under Indiana law from the case in Erie. Chief Justice Rehnquist and the two justices who joined him in the plurality opinion placed reliance on the fact that the Indiana law predated bar room nude dancing by decades, and in the view of that opinion, was therefore unrelated in its intent to expression. In contrast, the Pennsylvania Court found that the suppression of expression was the improper, but unmentioned, purpose of shutting down nude expression. If the law encompassed and forbade such well-known and ongoing expression, it cannot be said that the law was content-neutral, or that it was unrelated to expression, and I believe logical consequence is that the ordinance fails the O’Brien test of the draft-card burning case, and that it falls. Moreover, because of promises and assurances made to so-called legitimate stage companies that they would, in practice, be exempted from the force of the law, there are tell-tale fingerprints of improper motive, intent, and effect in the suppression of expression that should cause the High Court to affirm the Pennsylvania Court’s judgment that the ordinance is void.

We should know how this story plays out by the spring of the year 2000.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com