Nude-dancing case threatens free speech

Wednesday, April 26, 2000

Question: What do eight-track tapes, radio dramas and nude dancing have
in common?

Answer: All were popular forms of American entertainment in the past
century and have virtually no future in this one. Time and technology
dispatched 8-tracks and the golden age of radio; the U.S. Supreme Court
just retired the dancers.

In a surprising decision in City of Erie v. Pap’s A.M., the Supreme Court has paved the way for cities throughout the country to outlaw nude dancing.

There hasn’t been much of an uproar in response. Most Americans probably
view neon signs blinking “Live Nude Girls” as an eyesore. And no one is
prepared to march on city hall to take a stand for public nudity.

Making the case for nude dancing as a protected form of expression has
always been an uphill battle. In drafting the First Amendment, James
Madison probably didn’t envision a day it would apply to naked bodies in
bars. Why, then should there be any concern about this Supreme Court decision?

The court’s decision is troubling because it took a shortcut that
threatens freedom of speech well beyond the confines of a topless bar.
The majority opinion, written by Justice Sandra Day O’Connor, grudgingly
recognized that nude dancing is a form of expression that falls within
“the outer ambit” of First Amendment protection.

Despite that protection, the court ruled, protected speech can be
limited if a municipality seeks to regulate the “secondary effects” of
the speech and not the speech itself.

This doctrine historically has been used by cities to zone adult
entertainment away from schools, churches and playgrounds. The city is
still permitting the speech but moving it away from areas where there
would be undesirable side effects, including crime, loitering or
disruptive behavior.

In Erie v. Pap’s, the Supreme Court has taken the extraordinary effect
of using the secondary-effects doctrine to mute speech, not just move it.

The court acknowledged that erotic dancing is protected by the
free-speech guarantee, but it said the expression is pretty much the
same if a woman is required to wear a G-string and pasties. In other
words, constitutionally protected expression can be limited or
suppressed if a community can demonstrate that the speech contributes to
undesirable conduct unrelated to the speech itself.

In the words of dissenting Justice John Paul Stevens, “Far more
important than the question whether nude dancing is entitled to the
protection of the First Amendment are the dramatic changes in legal
doctrine that the Court endorses. … For the first time, the Court has
now held that (secondary) effects may justify the total suppression of
protected speech.”

The court’s decision will encourage cities to ban nude-dancing
establishments. In the next few months, we’ll see a wave of new
legislation designed to ban “public nudity.”

That legislation will be the “secondary effect” — to use the Supreme
Court’s term — of this decision. The primary effect is on the First
Amendment itself — and we may not know the true cost for years.