Freedom At the Kitty Kat

Ernest B. Furgurson

January 06, 1991|By Ernest B. Furgurson DTC

WASHINGTON. — Washington.

LET US REJOICE: This year is the bicentennial of the Bill of Rights.

All Americans are grateful for the first ten amendments to our Constitution, which more than anything else in our law set us apart from other nations. We celebrate the Second Amendment, ''which repealed Prohibition, allows states more latitude to restrict topless dancing at clubs selling alcohol.''

Those whose constitutional scholarship produced that finding may also cite the Third Amendment, the one that prohibits the sale of roasted peanuts at night baseball games in April.

Fortunately, the First Amendment really does establish freedom of religion, speech, press, assembly, and allows Americans to be dumb and frivolous. The Second Amendment absurdity quoted above is an instance of dumbness. It inspired my Third Amendment frivolity.

Today's constitutional discourse is the result of scrolling through computer files in search of column subjects during the holiday lull. For some reason, a story slugged NUDE caught my eye. It was a Chicago Tribune advance about tomorrow's Supreme Court hearing on whether Indiana can ban nude dancing.

The two reporters open with a nice description of Darlene Miller's act at JR's Kitty Kat Lounge in South Bend, which ends with her wearing spike heels and a tattoo. What makes the Indiana case different from so many others that have preceded it into the courts is that the state does not say Ms. Miller's performance is obscene. Indeed, lower courts have ruled that it is not, which must disappoint some potential customers.

The issue is whether her act ''contains enough expression to qualify as speech, which the First Amendment protects from government suppression.'' Indiana's deputy attorney general says it ''doesn't communicate anything and doesn't have any kind of artistic content.''

How can the high court retain its dignity while determining whether a nude dance communicates anything? Seeing a videotape would not do; even if Ms. Miller came to Washington and did her number right there before the bench, this question could not be proven. While her dance might fail to communicate with eight gentlemen and a lady justice (average age a surprisingly youthful 65.77), that same dance could speak volumes to patrons of the art in South Bend.

The verdict in this case can be rendered fairly only by a visit to the Kitty Kat itself. A judge who handled the matter on the Seventh Circuit sounds as if he has been there, for he says, ''It is apparent that that those who view the respective dances readily comprehend the intended messages, for they advance currency view them.'' Lawyers for the Kitty Kat and other Indiana citadels of culture argue that requiring dancers to wear pasties and a G-string violates their right of free speech.

But I have been led away from my constitutional sermon.

For some reason, the Tribune's piece does indeed say that ''In past cases, the justices have said that the Second Amendment, which repealed Prohibition, allowing states more latitude to restrict topless dancing'' and so on. I want to believe that is an editing error, rather than something the reporters wrote.

Prohibition was repealed by the Twenty-first Amendment. Everybody doesn't remember that, but surely every reporter and editor in the country knows that the great experiment of Prohibition ran from 1919 to 1933 -- that it was not struck down by the Second or any of the other first ten amendments, approved in Washington's time.

Don't all of us know what the Second Amendment is -- the one that, according to the National Rifle Association, protects every American's right to have the 700-round-per-minute designer machine gun of his or her choice?

Don't those of us who live by the First Amendment know the difference between the Second and the Twenty-first, between the Fifth and Sixth, the Thirteenth and Fourteenth? I confess an immediate chill of doubt after writing that ''surely'' all reporters and editors know any particular thing about the Bill of Rights.

In practice, we should know it better than the average citizen. In theory, every citizen lucky enough to be protected by it should know it by heart. In fact, poll after poll shows that Americans shrug at their ignorance of our greatest national treasure, the thing that has made us special for 200 years.

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