WASHINGTON -- The Supreme Court put a bold foot forward yesterday on opening day of a new term, stepping by choice into a rousing new constitutional dispute over something quite ancient: the striptease.
Although the Indiana case the justices chose to review has comic potential, it also could lead to a very serious new pronouncement on public morals -- specifically, on nudity in public places.
It appeared, in fact, that the conservative-dominated court may have taken on the new case as a fresh opportunity to read some notion of public decency into the Constitution's "free speech" clause.
Over the years, the court had issued a series of rulings with a fairly clear signal that nude dancing is constitutionally protected. The new case will test whether that line of rulings is going to be abandoned.
A lower court said stripteases are protected because they communicate an emotional message of "eroticism and sensuality."
Indiana state officials took the case on to the Supreme Court, arguing that nude dancing done solely to entertain barroom or "adult" theater customers is not expression at all, but is merely a smutty form of conduct.
The appeal noted that 17 states, including Maryland, have "public indecency" laws that could be put in jeopardy by the lower court ruling.
That case grew out of pleas by a nude dancer at J. R.'s Kitty Kat Lounge in South Bend and by two nude dancers at South Bend's Chippewa Bookstore that using a state law on public nudity to ban their form of entertainment was unconstitutional censorship. The case is Barnes vs. Glen Theatre (No. 90-26).
The Supreme Court also volunteered, on its first day back from summer recess, to rule on another issue under the First Amendment: the degree of constitutional protection, if any, that the news media and book publishers are to get when they alter or create quotations which they attribute to a known individual.
A lower court ruled that so long as the quoted statements were not wholly made up by the writer, they might qualify for constitutional protection against libel.
The justices agreed to review that issue in an appeal by a San Francisco psychoanalyst, Dr. Jeffrey M. Masson, who is seeking to revive a libel lawsuit against The New Yorker magazine, book publisher Alfred A. Knopf Inc. and author Janet Malcolm.
Ms. Malcolm wrote a two-part series in the magazine in 1983, which later was published in book form, describing turmoil within the Sigmund Freud Archives over Dr. Freud's theories. Based in part on
interviews with Dr. Masson, the articles carried a number of quotations that the doctor did not say.The case is Masson vs. New Yorker (No. 89-1799).
In another order yesterday, the justices refused to reopen a First Amendment controversy over the broadcast of a videotape of a 7-year-old Washington area girl, Hilary Foretich, describing to her mother alleged sexual abuse by her father.
Hilary has been figuring in an international child custody battle between her parents. Last April, as the controversy grew increasingly heated, cable television stations in this country broadcast the controversial videotape of the child's alleged accusations against her father, Dr. Eric Foretich.
Dr. Foretich failed in a lower court in an attempt to block those screenings, and then took the case on to the Supreme Court, which turned him down. The case is Foretich vs. Lifetime Cable (No. 90-35).