Supreme Court upholds law banning nude dancing

Justices say skimpy attire wouldn't change message

March 30, 2000|By Lyle Denniston | Lyle Denniston,SUN NATIONAL STAFF

WASHINGTON -- Laboring to write new constitutional rules on nude dancing, the Supreme Court spoke more clearly yesterday in the role of dance critic.

If nude dancing conveys an erotic message, it ruled, a requirement that the dancers wear minimal costumes will not greatly change the message.

Upholding an Erie, Pa., ordinance that required dancers to wear at least pasties and a G-string, the justices appeared to leave cities with the same authority to deal with nudity and nude dancing as they had under a 1991 Supreme Court case involving an Indiana nightclub.

But the new decision added one justification for anti-nudity ordinances: the need to prevent outbreaks of prostitution and other crimes that might be triggered by nude performances.

The ruling on the 1994 Erie ordinance, which was struck down in 1998 by the Pennsylvania Supreme Court, did not come easily to the justices. The result had to be pieced together from three opinions by differing combinations of justices. In the end, the Erie ordinance was revived by a 6-3 vote.

Legal experts said the ruling would have no immediate effect on the nearly three dozen Baltimore bars that are allowed to feature nude dancing but would provide the basis for possible legislation to impose a general ban on nudity, including nude dancing.

The approach the court took would support passage of a new City Council ordinance, said City Solicitor Thurman Zollicoffer.

Legislators and administrators would have one more weapon to regulate nude dancing, said Gerald Langbaum, a Maryland assistant attorney general.

A Baltimore Circuit Court judge ruled last year that clubs that included adult entertainment before the passage of a 1993 state law that regulates such entertainment could feature naked dancers. The city liquor board said 32 nude dance bars were "grandfathered" in under that ruling.

The court had agreed to review the Erie case because its 1991 decision did not clearly define cities' power to control erotic dancing. But it appeared to fall short again.

Justice Sandra Day O'Connor, in announcing the ruling, noted that the court was deciding the Erie case through "a multitude of opinions."

Four justices voted to allow cities to ban nude dancing if they do so as part of a ban on public nudity and to prevent prostitution and other crime stirred up by nude dancing. But those four justices said cities may not single out nude performances and ban those alone. O'Connor spoke for Chief Justice William H. Rehnquist and Justices Stephen G. Breyer and Anthony M. Kennedy.

Justice David H. Souter agreed with that general approach but said cities need strong and specific evidence that nude dancing causes other crimes. Because Erie did not have such evidence, Souther refused to uphold the Erie ordinance.

Together, however, those five justices appeared to share the view that it does not dilute the message of erotic dancing to require those who formerly did it naked to put on scanty costumes.

If Erie's ordinance means that dancers' erotic message will not be the same one that occurs "when the last stitch is dropped," O'Connor said, the ordinance still allows dancers "to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis," that is, minimal.

Justices Antonin Scalia and Clarence Thomas said cities ought to be allowed to single out nude dancing and ban it without having to ban all public nudity. Justices John Paul Stevens and Ruth Bader Ginsburg dissented on all points.

The lineup, when sorted out, had O'Connor, Rehnquist, Breyer, Kennedy, Scalia and Thomas in favor of the Erie ordinance, and Souter, Stevens and Ginsburg unwilling to uphold the ordinance.

Sun staff writer Eric Siegel contributed to this article.

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