Justices hint at protection for striptease

January 09, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Peeking out from behind the black-robed decorum of a Supreme Court hearing yesterday were vivid hints that the justices are attracted to the striptease -- as a constitutional idea, that is.

Ordinarily, the justices seldom expose their leanings on a constitutional issue during a hearing, but they seemed to have real difficulty this time concealing the apparent view that nude dancing -- when done before paying customers -- will go on enjoying constitutional protection.

An Indiana test case, involving strippers at a barroom and adult theater in South Bend, had raised the prospect that the newly conservative court would remove the existing constitutional cover for such public nudity -- cover provided by past Supreme Court rulings.

For nearly a full hour, the justices focused on that case, often with humor but also with some serious overtones as justices worried openly about possible threats to dancing as a form of free expression if Indiana were allowed to ban nude dancers performing in public places.

Only two members of the court, Chief Justice William H. Rehnquist and Justice Antonin Scalia, made any significant efforts to help deputy Indiana attorney general Wayne E. Uhl, who drew the sharpest, most critical questioning from the bench.

Mr. Uhl, keeping an entirely straight face, suggested at one point that Indiana's ban on nude dancing could be upheld because it sought to meet the problem of public nudity with a remedy that was "narrowly tailored": Dancers could satisfy the law if they wore only pasties and a G-string.

The state's lawyer was seeking to revive the nude dancing ban, struck down last year by a federal appeals court, that said "dance as entertainment is a form of conduct that is inherently expressive," and thus a form of "free speech."

Mr. Uhl had merely begun when Justice Anthony M. Kennedy suggested that the state might only be after the strippers because they were "not good enough dancers" to qualify for protection as artists.

And, within moments, Justice Sandra Day O'Connor disputed Mr. Uhl's claim that the state was trying to control nude dancing in general. She expressed doubt about the law, saying it was not "neutral" about nude dancing because the law now seems to prohibit only nude performances that are not of artistic merit.

Justice Scalia chastised the lawyer for spending so much time talking about dancing, since "if these dancers had clothes on, they could dance to their heart's content." Mr. Uhl agreed with that.

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