Banished to ‘outer ambit’ of freedom

Tuesday, April 25, 2000

In an unseemly spasm of priggishness late last month, the Supreme Court issued what amounts to a national ban on nude dancing.

“Go clothe thyself,” is the court’s commandment to present and future nude dancers at clubs across the nation. It comes in the form of the 6-3 ruling in City of Erie v. Pap’s A.M., which reinstated the Pennsylvania city’s ordinance requiring female dancers working in adult establishments to wear pasties and G-strings when performing.

Five days after the Pap’s decision was handed down, the court declined to consider five other cases challenging restrictions on nude dancing, apparently satisfied that it had made itself clear on the subject.

The message was certainly clear to city officials throughout the land, who quickly geared up for a naked assault on First Amendment rights. Just a few recent clips from the Free Speech X-press:

  • In Clarkstadt, N.J., Mayor William Roseman predicted the day after the ruling that the city council would enact an ordinance similar to Erie’s at the very next meeting.
  • In South Salt Lake, Utah, City Attorney Craig Hall said that a new ordinance redefining public nudity would be before the city council within two months.
  • City council members in Lincoln, Neb., prepared last week to revisit a ban on public nudity. In February, the council had delayed a vote on the requirement for dancers to wear pasties and G-strings to await the Supreme Court ruling in Erie v. Pap’s.
  • At its April 18 meeting, the Ogden, Utah, council directed the city’s attorney to rewrite its ordinance to conform to Erie’s, as a preliminary to banning the city’s first nude-dancing club.
  • The Township Council in North Brunswick, N.J., vowed to be the first in the state to ban nude dancing with an ordinance that would go into effect next month. “We literally lifted the definition from the Erie ordinance,” said municipal attorney David Himelman.

  • And a Wisconsin appeals court ruled in favor of the Hudson city council’s crackdown on strip clubs, rejecting Centerfold Cabaret’s argument that secondary effects shouldn’t be a factor in licensing decisions. In 1998, the state supreme court had ruled that nude dancing was a constitutionally protected form of free speech.

No doubt, most Americans (even a few devoted First Amendment advocates among them) are not all that perturbed to see adult businesses targeted for such restrictions. But before they begin dancing fully clothed in the streets, there are some sobering aspects to this ruling and its ramifications that ought to be noted.

In the majority decision, Justice O’Connor conceded that nude dancing is expressive conduct but maintained that it “falls within the outer ambit of the First Amendment’s protection.” This extraordinary zoning of expression should send a collective shudder through all Americans who care about free speech.

The majority opinion repeatedly asserts that the Erie ordinance was designed to ameliorate the secondary effects of adult businesses, but the record before the court clearly showed that the city council was going after nude dancing’s message, not nudity itself. “We’re not talking about nudity,” said one of the council members. “We’re not talking about the theater or art … . We’re talking about what is indecent and immoral … . We’re not prohibiting nudity, we’re prohibiting nudity when it’s used in a lewd and immoral fashion.”

Indeed, the court decision appears to celebrate the idea that “the traditional power of government to foster good morals and the acceptability of the traditional judgment that nude public dancing itself is immoral, have not been repealed by the First Amendment,” in the words of the concurrence by Justices Scalia and Thomas.

Until now, the Supreme Court for the most part has agreed that if there is one thing the First Amendment stands for it is the idea that public officials should not be the arbiters of morality or taste in expression, clothed or otherwise.

It gets worse. To banish protected speech to the “outer ambit” of First Amendment protection, the court tortured logic and precedent to expand the role and reach of the so-called secondary-effects doctrine.

Justice O’Connor wrote that the Erie ordinance “does not attempt to regulate the primary effects of the expression, i.e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare, which we have previously recognized are ’caused by the presence of even one such’ establishment.”

The secondary-effects doctrine began life in a 1976 ruling as a footnote that asserted that speech can cause secondary effects. Gradually it was raised up to a full-blown “doctrine” in subsequent decisions.

This ruling lifts the doctrine’s impact to a whole new level, and that disturbs Justice Stevens. In a dissent joined by Justice Ginsburg, he wrote: “Until now, the ‘secondary effects’ of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protected speech.”

“Never before,” Stevens continued, “have we approved the use of that doctrine to justify a total ban on protected First Amendment expression. On the contrary, we have been quite clear that the doctrine would not support that end.”

First Amendment attorney Michael A. Bamberger of Sonneschein Nath & Rosenthal in New York says the ruling extends the government’s power to suppress speech in three ways:

  • It takes the secondary-effects doctrine out of the time, place and manner/zoning context in which it developed to justify banning protected speech.
  • It permits its application without any objective basis, but rather on the basis of legislators’ inherent “expertise.”

  • It permits application of the doctrine and the resultant banning of protected speech even when the reduction of the adverse secondary effects concededly would be modest, if not minimal.

And this reach goes beyond sexual speech to any that might have adverse secondary effects. “One can only hope that the court will treat Pap’s in the future as a ‘nude dancing’ case,” says Bamberger. If experience is any guide, that is a purely wistful hope.

What is more likely is that more and more local officials will use this spacious but shaky platform the court has erected from which to lob lethal ordinances at speech that is controversial or offensive to some in the community.

Now that possibility is the law of the land. So what can we do about it?

It is not likely that members of Congress will muster the political courage to make laws that ameliorate the impact of this ruling.

It is not likely that local officials will be able to resist the pressure to use the ruling to go after offensive or controversial speech.

Neither is it very likely that the opponents of nude dancing will try out the simple solution of avoiding offense by not going to strip joints.

The best hope for a solution lies in the court that created the problem. It is not beyond reason that the six justices in the majority might someday soon re-read the eloquent dissent written by Justices Stevens and Ginsburg, then admit they were wrong.

It happens.

Indeed, it happened in this very case, when Justice Souter, who played a key role in advancing the secondary-effects notion from a footnote to a doctrine, flat-out said he was wrong before and that the majority is wrong in this instance by holding that the city of Erie did not need to prove secondary effects, just assert them.

“My partial dissent rests on a demand for an evidentiary basis that I failed to make when I concurred in Barnes (1991),” Souter wrote. “I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted.”

Others on the court need to develop Justice Souter’s keen sense of what is at stake here. It would help them see just how inimical to our first principles this decision is. It would help them realize that banishing some expression to the “outer ambit of the First Amendment’s protection” is tantamount to putting all speech on the outskirts of freedom.

Paul McMasters may be contacted at