Iowa public nudity law survives First Amendment challenge

Thursday, August 20, 1998

Iowa's public nudity law does not violate the First Amendment, a federal appeals court ruled recently.

In Farkas v. Miller the 8th U.S. Circuit Court of Appeals last Friday rejected the challenge brought by the owners of three adult entertainment establishments — Tuxedos, Blondies and Big Earl's Goldmine. The owners were joined in the lawsuit by Tracy Bedford, a dancer at Big Earl's Goldmine.

The plaintiffs asserted that the law unconstitutionally restricted free-expression rights by prohibiting totally nude dancing.

The law provides that the owners or managers of businesses required to have a sales tax permit are guilty of a “serious misdemeanor” if they allow “the exposure of the genitals or female breast nipple of any person who acts as an entertainer.”

In effect, the law requires exotic dancers to wear G-strings and pasties and prohibits totally nude dancing.

A federal district court had initially granted the plaintiffs' request for a temporary restraining order against enforcement of the law but later ruled the law constitutional at a preliminary injunction hearing.

On appeal, the 8th Circuit agreed, finding the law was constitutional because it was passed not to suppress free expression but to prevent harmful secondary effects associated with such nudity, including prostitution, sexual assaults and other increases in crime.

The 8th Circuit based its decision on the U.S. Supreme Court's 1991 decision in Barnes v. Glen Theatre, in which the court ruled that an Indiana public indecency law did not violate the First Amendment free-expression rights of nude dancers.

The appeals court specifically relied on the reasoning of Justice David Souter in Barnes who wrote that “live nude dancing … is likely to produce … pernicious secondary effects.”

The 8th Circuit cited Souter's opinion to conclude that “the interest in reducing the secondary effects associated with nude dancing is unrelated to the suppression of free expression.”

Randall C. Wilson, attorney for the plaintiffs and legal director for the Iowa Civil Liberties Union, said: “This decision represents a dangerous departure from First Amendment jurisprudence and represents a dangerous erosion that started with the U.S. Supreme Court's troubling decision in Barnes. Under Barnes and this decision by the 8th Circuit, it is no longer necessary for government officials to have some evidence that nude dancing creates these secondary effects.”

The attorney representing the state of Iowa could not be reached for comment.

Wilson said that a decision about whether to appeal has not yet been made.