High court lets localities ban nude dancing But Souter opinion hints at protection in artistic setting

June 22, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun

WASHINGTON -- A deeply divided Supreme Court ruled yesterday that states and cities may make it a crime for strippers to take off all of their costumes in a barroom or an "adult" theater -- but probably can't do the same for dancers or actors in a play or program at a regular theater.

The constitutional difference drawn by the 5-4 ruling in a South Bend, Ind., striptease case turned on the kinds of audiences, and their possible reactions, to total nudity in different public settings.

If "dropping the last stitch," as one justice put it, is done at a place where the customers might be enticed into prostitution, sexual assault or other crime, the Constitution allows state and local government to ban complete nudity at those

establishments.

But, according to the key opinion issued yesterday, the same constitutional rule probably would not permit the banning of "expressive nudity" during programs such as the musical "Hair" or the drama "Equus" if they are put on "somewhere other than an 'adult' theater." The risk of harmful "secondary effects" probably would not exist in that kind of setting, it was suggested.

It required three separate opinions for the five justices in the majority to make their legal points, but the most significant among those opinions appeared to be a seven-page document written by the court's newest member, David H. Souter.

Because he took a middle stance between the four others in the majority (who favored more regulation of nude dancing) and the four in dissent (who favored less), Justice Souter's opinion represented the closest thing there was to judicial common ground that lower courts now will be likely to treat as controlling.

Justice Souter and all his colleagues but one -- Justice Antonin Scalia -- agreed that the Constitution does provide some protection for public nudity while dancing as a form of "expression." Justice Scalia, however, argued that a general law against nudity in all public places was not aimed at "expression" at all, and thus there was no constitutional problem with it.

With Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Sandra Day O'Connor, Justice Souter concluded that the state of Indiana had not gone too far in curbing "expressive" nudity by requiring strippers to remain covered at least by pasties and a G-string. Chief Justice Rehnquist remarked that that was "the bare minimum necessary" to meet the state's interest in public morality.

Justice Souter, however, said he would accept the state law as valid only because he was convinced that "the type of adult entertainment at issue here" might be related to "prostitution, sexual assault and other criminal activity."

The other three of those justices said they thought that Indiana had the constitutional authority to "protect societal order and morality" by attacking "public indecency" and that the state was requiring nightclub dancers to "wear a scant amount of clothing" only to serve that goal. The aim, those three said, was not to outlaw "erotic dancing," but only "public nudity."

Those three gave no indication that they would accept Justice Souter's limitation on the setting.

Justice Byron R. White, who wrote the dissenting opinion supported by Justices Harry A. Blackmun, Thurgood Marshall and John Paul Stevens, argued that the Constitution forbids states and cities to ban nude dancing when "the viewers are exclusively consenting adults who pay money to see these dances."

While conceding that a striptease "may not be high art, to say the least," the dissenters contended that it should not be up to state and local government to enforce official tastes on consenting adults.

Justice Scalia, in a separate opinion, ridiculed the dissenters, saying they were suggesting that the Constitution embodied the principle that "you may do what you like so long as it does not injure someone else."

States and cities should be left free, Justice Scalia suggested, to go as far as making it a crime for "60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd."

The decision upholding the Indiana public nudity law came in the case of Barnes vs. Glen Theatre (No. 90-26).

The case

Darlene Miller dances at the Kitty Kat Lounge in South Bend, Ind., and she and the owner wanted to have her dance totally nude. Gayle Ann Marie Sutro also wanted to shed all her clothing while dancing behind a glass panel at the Glen Theatre, an "adult" theater in South Bend.

They could not bare themselves legally, however, because an Indiana law forbids total nudity in public places -- including barrooms and "adult" theaters.

A federal appeals court in Chicago concluded that nude dancing, of the kind Ms. Miller and Ms. Sutro wished to perform, could not be banned. The Constitution protects such dancers, the appeals court said, because they are conveying an emotional message of "eroticism and sensuality." The state of Indiana got that ruling overturned yesterday by the Supreme Court.

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