Ohio’s high court to determine fate of nude dancing in liquor clubs

Friday, June 12, 1998

The Ohio Supreme Court voted 4-3 last week to accept a case that will determine the fate of nude dancing in businesses licensed to serve liquor.

In Planet Earth Entertainment, Inc. v. Ohio Liquor Control Commission, the Ohio Supreme Court will determine whether a Liquor Control Commission regulation banning “immoral” acts in bars prohibits nude dancing.

In a procedure known as certification, an appeals court requested the state's highest court to resolve a conflict in the lower courts over “whether the prohibition against semi-nude dancing in liquor establishments … unconstitutionally abridges the freedom of speech in violation of [both] the First Amendment” and a similar provision in the Ohio Constitution.

Last year, a Cuyahoga County appeals court ruled that the regulation was “unconstitutionally overbroad,” writing: “We conclude non-obscene nude or topless dancing under the Ohio Constitution is entitled to free speech protection. Nudity by itself is not obscene; it is expressive conduct.”

However, another appeals court in Franklin County ruled just the opposite, finding: “It is well-settled in this appellate district that [the regulation] can be reasonably interpreted to prohibit the type of nude or semi-nude dancing which constituted two of the three violations.”

The U.S. Supreme Court has held that nude dancing is a form of expressive conduct that at least enjoys some First Amendment protection. In the 1991 case Barnes v. Glen Theatres, Inc., the court wrote that “nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.”

However, in the earlier decision California v. LaRue (1972), the Supreme Court determined that though nude dancing was a form of free expression, the 21st Amendment—which empowers states to regulate the sale of liquor—allowed the state to ban nude dancing as part of its liquor license program. The court justified its decision to deny adult entertainment establishments liquor licenses in part because the 21st Amendment gave “an added presumption in favor of the state regulation in this area.”

Louis Sirkin, attorney for the club Planet Earth, said: “We are very happy the Ohio Supreme Court has decided to accept this issue for review. Times have really changed since the LaRue decision. The public's attitude toward nudity in general has also changed. And recent Supreme Court case law has said that the 21st Amendment no longer trumps the First Amendment.”