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Editorial: Judicial dance

The high court is too casual about free expression

Tuesday, April 04, 2000

Even free-speech absolutists will concede that there are worse threats to the First Amendment than the city of Erie's ban on nude dancing. But in upholding the Erie law, which forced exotic dancers to don G-strings and pasties, the U.S. Supreme Court has acted with a casualness toward the First Amendment that could prove troublesome in cases far removed from the Kandyland club.

The court upheld the Erie law by a 6-3 vote, but the justices split on their reasoning. Justices Antonin Scalia and Clarence Thomas took the straightforward if simplistic position that nude dancing isn't expression at all, and that Erie could easily ban it under government's traditional right to regulate public morals.

Four other justices in the majority were more willing to accord some First Amendment protection to nude dancing. But they ruled that Erie acted constitutionally in prohibiting that activity (along with other public nudity) because the city was concerned about "negative secondary effects" such as violence and prostitution. The court has been sympathetic to this rationale in zoning cases in which cities have tried to limit the spread of adult bookstores and movie theaters.

The problem in this case was that Erie wasn't confining nude dancing to one or two areas but banning it outright. The preamble to the legislation suggested the city was concerned less about "secondary effects" than about the "lewd, immoral" nature of nude dancing itself.

Members of Erie city government are free not to patronize entertainments they find immoral. But so long as nude dancing isn't legally obscene, consenting adults should have the right to pay to see it - unless the city can demonstrate that such entertainment contributes to serious, measurable social problems.

Justice David H. Souter, who accepted his four colleagues' view that cities could ban nude dancing because of such "secondary effects," wrote a separate opinion saying in effect that the court should not have taken Erie's word for it that such effects were a problem there. Justice Souter would have sent the case back to a lower court in which the city would have to prove that nude dancing, as opposed to nearly-nude dancing, contributed to crime or blight.

Justice Souter's colleagues would have shown more respect for the First Amendment if they had followed his advice. It's easy to make light of the concept of nude dancing as speech or even art, but it can be both. Giving local governments a blank check to ban nudity could jeopardize forms of expression that most people see as deserving of First Amendment protection.

This case might not have struck the justices as serious, but the First Amendment issues it raised were. They deserved more thoughtful consideration by the court.

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