Two women challenge Florida county’s public decency law

Tuesday, March 9, 1999

Two women, who say they stopped their nude dancing in adult nightclubs for fear of being arrested, sued Seminole County, Fla., yesterday, contending that the county's public decency law violates their First Amendment free-expression rights.

Pauline Koziara and Kathleen DeRienzo contend that the so-called “Seminole County Public Decency Ordinance,” which was passed last November, will have a “chilling effect on constitutionally protected expression and encourage arbitrary and capricious enforcement.”

The law prohibits “a person from intentionally or recklessly appearing or being nude, or causing another person to appear or be nude, in a public place and in other places which may reasonably be expected to be observed by the public within Seminole County.”

The law defines “nude” to include situations in which the persons are “insufficiently clothed.” A person is “insufficiently clothed” when certain body parts — including the male and female genitalia — are not “entirely covered with a fully opaque covering.”

The ordinance, for instance, prohibits the wearing of thongs because they do not adequately cover the buttocks.

In Koziara v. Seminole County, the plaintiffs argue that the ordinance violates their free-expression right to nude dancing.

“Ms. Koziara and Ms. DeRienzo believe the nude human body is a thing of beauty and, when combined with music and rhythmic motion in the form of dance, conveys important and constitutionally protected messages including freedom, eroticism and sensuality,” the lawsuit says. “Through nude dancing, Ms. Koziara and Ms. DeRienzo seek to promote and communicate to their audiences these messages and others such as longing, beauty and harmony.”

In its 1991 decision Barnes v. Glen Theatre, the U.S. Supreme Court recognized that nude dancing is a form of expressive conduct that at the very least merits First Amendment analysis. The court wrote that “nude dancing … is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.”

In Barnes, Justice David Souter authored a concurring opinion that most lower courts have found instructive. Souter reasoned that government officials can regulate adult expression based on the secondary-effects doctrine. This doctrine holds that government officials can regulate nude-dancing establishments if their concern is with the harmful secondary effects caused by the businesses — such as increased crime and decreased property values — rather than with the content of the expression.

The Seminole County ordinance identifies numerous secondary effects associated with public nudity, including prostitution, sexual assaults and batteries, other criminal activity and the degradation of women.

However, the plaintiffs allege in their lawsuit that county officials, at the time they passed the ordinance, had “no evidence” that nudity at public places would create any adverse secondary effects.

The suit also alleges the ordinance violates the First Amendment because it discriminates against types of nudity depending on the context and content of the expression. The ordinance exempts nudity that is part of a “bona fide live communication.”

The plaintiffs say this exemption demonstrates that the ordinance is content-based and viewpoint-based in violation of the First Amendment.

Steven Mason, attorney for Koziara and DeRienzo, says the bona-fide live communication exemption presents an “intriguing issue” for the court. “Nudity in an adult nightclub should not be treated any differently than nudity in a theatrical play,” he said. “If it does apply, then can't some nudity in an adult nightclub qualify as 'bona-fide communication?'”

Mason also says that this county ordinance goes much farther than many other in the country by prohibiting dancers from wearing thongs and requiring them to wear clothing that better covers the buttocks. “This ordinance destroys the message of eroticism,” he says.

However, Lonnie Groot, deputy county attorney for Seminole County, says the ordinance is constitutional. “The ordinance is fully consistent with the Barnes ruling by the U.S. Supreme Court,” he said.