WASHINGTON -- One day after a Picasso painting, "Nude on a Black Armchair," drew the handsome price of $45 million at a New York auction, the Supreme Court spent an hour yesterday as an art critic of sorts, pondering nudity in a different, and cheaper, form.
The court held a hearing on the constitutional rules that would govern public displays of nudity by nightclub dancers -- a more "lowbrow kind of art," as one justice put it.
Lowbrow though it may be, nude dancing is now a popular form of entertainment in some 3,000 clubs nationwide -- clubs that, one lawyer said yesterday, generate more revenue than all stage plays and dramas in the country combined.
The justices were alternately serious and mildly humorous as they weighed a plea by the city of Erie, Pa., to revive a wide-ranging local ban on nude entertainment in public places. That law has been struck down by the Pennsylvania Supreme Court.
Eight years ago, in a splintered decision, the court provided some constitutional protection for nude dancing, at least when it amounts to a form of "expression" and is not performed in a setting likely to lead to sex crimes such as prostitution or assault.
In the Erie case, Pennsylvania's highest court found the justices' 1991 decision so divided that it largely ignored it and fashioned its own interpretation of the freedom to express one's self in the nude.
The state court said nude dancing was a form of expression designed to send an "erotic message." The justices apparently took on the appeal by the city of Erie to try to provide some clarity on the issue.
But at the end of the hearing yesterday, it was unclear whether the case remains an active dispute. The nightclub owner who successfully challenged Erie's anti-nudity ordinance in federal court has gone out of business and says he has no desire to get back into it.
Several of the justices wondered whether there was anything left to decide. A Los Angeles lawyer, John H. Weston, seeking to keep intact the Pennsylvania Supreme Court ruling, argued that the court should decide the case and further curb cities' power to ban nudity as entertainment.
Erie's city solicitor, Gregory A. Karle, said the court should overturn the state court and uphold the ordinance. Karle argued that the ordinance was fashioned explicitly to meet the requirements of the justices' 1991 ruling.
The Erie City Council adopted the ordinance in 1994 in response to "a recent increase of live entertainment within the city." But instead of targeting only nude dancing, the ordinance imposed a ban on nudity in all places open to the public, and it would even apply to private parties limited to invited adult guests.
Among the justices, only Antonin Scalia -- the one justice in 1991 who opposed constitutional protection for nude dancing -- sought yesterday to bolster Erie's arguments. When the city lawyer faltered, Scalia suggested points that the attorney should make to support the ordinance.