Nightclub owner ask Supreme Court to review nude-dancing case

Tuesday, September 14, 1999

The U.S. Supreme Court should strike down a Pierce County, Wash., ordinance banning table dances at nude-dancing clubs, the owners of an area nightclub argue.

In 1994, the Pierce County Council enacted an ordinance regulating nude dancing. The ordinance provides that “all dancing shall occur on a platform intended for that purpose which is raised at least eighteen inches from the level of the floor and no closer than ten feet to any patron.”

DCR, Inc., a Pierce County nightclub, and Kathy T. Johnson, a dancer at the club, challenged the law as a violation of free-expression rights under the First Amendment of the U.S. Constitution and the free-speech provision of the Washington Constitution.

County officials claimed the law was enacted to prevent sexual contact between entertainers and patrons.

Last October, the Washington Court of Appeals ruled in DCR, Inc. v. Pierce County that the law did not violate First Amendment free-speech rights but was a constitutional method to control harmful, secondary effects associated with adult businesses.

“We conclude that table dancing in private nightclubs, with documented links to prostitution and drug dealing, is a highly unlikely candidate for special protection under the First Amendment,” the appeals court wrote.

The Washington Supreme Court refused to review the decision. Now, the nightclub has taken its fight to the U.S. Supreme Court, arguing that the high court should take the case to address some unanswered questions about the level of First Amendment protection afforded nude dancing.

In its review petition to the high court, filed last month, DCR writes: “The approach taken by the Washington Court of Appeals in this case, which poses a grave threat to freedom of expression, is engendered by the lack of certainty in Barnes.”

Barnes refers to the high court’s 1991 decision in Barnes v. Glen Theatre, Inc. In Barnes, the U.S. Supreme Court narrowly upheld an Indiana public indecency law prohibiting totally nude dancing. The high court wrote that nude dancing was a form of expressive conduct that triggered First Amendment analysis when restricted by a government regulation.

However, many legal experts view Barnes as confusing, because only three justices signed the lead opinion in the case. “The nature of the Barnes decision has led to much confusion as well as divergent results in the lower courts,” DCR said in its review petition.

Many lower courts have cited Justice David Souter’s concurring opinion in Barnes as the opinion that should control resolution of First Amendment nude-dancing cases. Souter wrote that the Indiana public indecency law was constitutional, because it did not target the expressive conduct of nude dancing, but the harmful secondary effects commonly associated with adult businesses.

DCR, Inc., is challenging the Washington appeals court’s application of the secondary-effects doctrine to ban table dancing. “The net effect of this approach is that the lower courts are free to avoid the First Amendment analysis, so long as they determine that the particular mode of expression happens to be associated with secondary effects,” DCR wrote in its petition.

The U.S. Supreme Court could well defer its decision on whether to review DCR’s appeal until after it decides another nude-dancing case, Erie, Pa. v. Pap’s A.M.

The high court is scheduled to hear oral arguments in Pap’s on Nov. 10.