High court refuses to hear 5 cases challenging nude-dancing regulations

Tuesday, April 4, 2000

Yesterday, the U.S. Supreme Court refused to hear five cases challenging
various restrictions on nude dancing.

The high court turned down two Washington state cases, Colacurcio v. City
of Kent
and DCR, Inc. v. Pierce County; two Tennessee cases, Déjà
Vu of Nashville, Inc. v. Metropolitan Government of Nashville
and DLS,
Inc. v. City of Chattanoogs
; and an Alabama case, Sammy’s of Mobile, Ltd.
v. City of Mobile

All of the cases featured challenges to an assortment of city or state
regulations affecting nude dancing. Several of the cases alleged that buffer
zones between nude dancers and their patrons violated First Amendment
free-expression rights.

For example, the Colacurcio case featured a challenge to the city of
Kent’s rule providing that “no dancing or adult entertainment by any entertainer
shall occur closer than ten (10) feet to any patron.”

The high court’s refusal to hear these cases was attributed by several
adult-entertainment attorneys to its March 29 opinion in City of Erie v.
Pap’s A.M.

In Pap’s, a majority of the court determined that Erie’s ordinance
prohibiting public nudity was content-neutral and constitutional. Justice Sandra
Day O’Connor wrote that “the ordinance prohibiting public nudity is aimed at
combating crime and other negative secondary effects caused by the presence of
adult entertainment establishments like Kandyland and not at suppressing the
erotic message conveyed by this type of nude dancing.”

In his dissent, Justice John Paul Stevens pointed out that the so-called
“secondary effects doctrine” grew out of adult-entertainment zoning cases, not
direct restrictions on the performance dances themselves. In fact, Stevens
himself was the first Supreme Court justice to use the “secondary effects” term
in the 1976 decision Young v. American Mini-Theatres, Inc.

Luke Lirot, a Tampa, Fla.-based First Amendment attorney who represented the
adult businesses in Sammy’s, said the court’s refusal to hear the cases
was “not surprising.”

“The court definitely overlooked a lot of arguments in the Pap’s case,” Lirot
said. “It was truly disappointing.”

Bradley Shafer, the attorney for Déjà Vu, contended that the court’s denial
of Déjà Vu of Nashville, Inc, was “somewhat surprising.”

“We had put before the court the exact evidence that the court said in Pap’s
was necessary to litigate the issue of whether adult businesses cause adverse
secondary effects,” Shafer said.

Shafer refers to a passage in O’Connor’s Pap’s opinion in which she
writes: “Here, Kandyland has had ample opportunity to contest the council’s
findings about secondary effects. … Yet to this day, Kandyland has never
challenged the city council’s findings or cast any specific doubt on the
validity of these findings.”

“We will most likely file a motion for reconsideration before the high
court,” Shafer said.


  • Kandyland decision a new First Amendment landmark 4.3.00
  • High court upholds limits on nude dancing 1.22.99
  • Nude dance clubs to appeal ruling that upholds Tennessee public indecency law 1.22.99
  • Federal appeals court upholds 10-foot buffer zone in nude-dancing case 12.14.98