Wichita City Council takes step toward banning public nudity

Thursday, November 18, 1999

The Wichita City Council has given tentative approval to an ordinance banning public nudity, which it says causes adverse effects on the community.

The measure, if approved of on second reading on Nov. 23, would prohibit topless and nude dancing within city limits.

However, the measure purports to ban most forms of public nudity instead of singling out adult entertainment.

City attorney Gary Rebenstorf says the proposal is not targeting nude-dancing clubs. He told The Wichita Eagle: “This [proposed ordinance] would pertain to any type of public nudity that can be considered a crime.”

The measure would exempt public nudity in theatrical performances, university modeling classes, public rest rooms and hospitals.

The city based the measure on the 1991 U.S. Supreme Court decision Barnes v. Glen Theatre, Inc. in which the high court upheld an Indiana public indecency law prohibiting public nudity. Two nude dancers and two nude dancing establishments had challenged the law on First Amendment grounds. They had argued that the law infringed on free-expression rights.

The Supreme Court wrote that nude dancing was expressive conduct “within the outer perimeters” of the First Amendment, but narrowly upheld the law based on several rationales.

Chief Justice William Rehnquist, who wrote the court’s main opinion, said that the law could be justified by the state’s interest in protecting morals and social order. “Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity,” Rehnquist wrote.

Justice David Souter wrote a separate opinion in Barnes, citing a different justification for upholding the Indiana law. Souter said the law was constitutional because it was not aimed at the expressive conduct of nude dancers but at certain harmful secondary effects associated with adult businesses such as increased crime and decreased property values.