Posted on 06/21/2006 5:50:09 PM PDT by Tarkin
In 1991, the Supreme Court of the United States considered this question: Do the dancers at the Kitty Kat Lounge in South Bend, Indiana, have a First Amendment right to perform totally nude, or can they be forced under the state's public indecency law to wear pasties and G-strings?
The CHIEF JUSTICE, joined by JUSTICE O'CONNOR and JUSTICE KENNEDY, concluded that the enforcement of Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's guarantee of freedom of expression. Pp. 565-572. (...)
JUSTICE SCALIA concluded that the statute - as a general law regulating conduct and not specifically directed at expression, either in practice or on its face - is not subject to normal First Amendment scrutiny, and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition.(...)
JUSTICE SOUTER, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U.S. 367, is the appropriate analysis to determine the actual protection required, concluded that the State's interest in preventing the secondary effects of adult entertainment establishments - prostitution, sexual assaults, and other criminal activity - is sufficient under O'Brien to justify the law's enforcement against nude dancing. (...)
CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE O'CONNOR and JUSTICE KENNEDY join.
(...)
Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed "bookstore." The live entertainment at the "bookstore" consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre's dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. for Cert. 131-133. Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute, Ind.Code 35-45-4-1 (...) These statements support the conclusion of the Court of Appeals 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.
(...) JUSTICE SOUTER, concurring in the judgment.
(...) Pasties and a G-string moderate the expression to some degree, to be sure, but only to a degree. Dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message. (...)
JUSTICE WHITE, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and JUSTICE STEVENS join, dissenting.
(...)nude dancing conveys an erotic message, and (...) the message would be muted if the dancers wore pasties and G-strings. Indeed, the emotional or erotic impact of the dance is intensified by the nudity of the performers. As Judge Posner argued in his thoughtful concurring opinion in the Court of Appeals, the nudity of the dancer is an integral part of the emotions and thoughts that a nude dancing performance evokes.
First Amendment to the United States Constitution
I think that it's clear that the first amendment says that the states can't ban nude dancing, right? :-)
The notion that the 'due process of law' guaranteed by the Fourteenth Amendment is shorthand for the first eight amendments of the Constitution and thereby incorporates them has been rejected by this Court again and again, after mpressive consideration. See, e.g., Hurtado v. California, 110 U.S. 516, 292 ; Twining v. New Jersey, 211 U.S. 78 ; Brown v. Mississippi, 297 U.S. 287 ; Palko v. Connecticut, 302 U.S. 319 . Only the other day the Court reaffirmed this rejection after thorough reexamination of the scope and function of the Due Process Clause of the Fourteenth Amendment. Adamson v. California, 332 U.S. 46 , 171 A.L.R. 1223. The issue is closed.
(...) we adhere to the views expressed in Palko v. Connecticut, supra, 302 U.S. 319 . That decision speaks to us L.Ed. 288. That decision speaks to us particularly in matters of civil liberty, of a court that included Mr. Chief Justice Hughes, Mr. Justice Brandeis, Mr. Justice Stone and Mr. Justice Cardozo, to speak only of the dead. In rejecting the suggestion that the Due Process Clause incorporated the original Bill of Rights, Mr. Justice Cardozo reaffimred on behalf of that Court at affirmed but deeper and more pervasive conception of the Due Process Clause. This Clause exacts from the States for the lowliest and the most outcast all that is 'implicit in the concept of ordered liberty.'
WOLF V. PEOPLE OF THE STATE OF COLORADO , 338 U.S. 25 (1949)
So wait, are you for or against the ban on nude dancing?
I think we need to split the baby on this one:
Ugly chicks and guys: Against
Hot chicks: For
Oh, and of course we all know that nude dancing is "'implicit in the concept of ordered liberty" :-). BTW. even though the respondent lost the case, it's absolutely ridiculous that such cases are even CONSIDERED by the SCOTUS.
Agreed.
There is no total incorporation, there is selective incorporation. The FA does apply to the states.
However, that issue has very little to do with the protection of nude dancing under the FA.
The Supreme Court's jurisprudence on the FA is all over the map.
How can nude dancing be protected but political action committees can be regulated?
Depends who's dancing.........
Theoretically you're of course correct. But in fact each and every provision of the BoR was interpreted to be "implicit in the ordered concept of liberty" in the 1960s (when the SCOTUS practically overruled all case law involving the Due Process Clause of the Fourteenth Amendment) except three nearly meaningless provisions (the third and seventh amendment and the Grand Jury clause) and the (very meaningful) second amendment (which the liberals hate, and which therefore can't be "implicit in the ordered concept of liberty"),
Who can seriously complain about topless dancing?
There ya go!
BTW, selective incorporation is even worse than total incorporation, because (to quote Justice Frankfurter's concurrence in Adamson v. California) "Some are in and some are out, but we are left in the dark as to which are in and which are out. Nor are we given the calculus for determining which go in and which stay out. If the basis of selection is merely that those provisions of the first eight Amendments are incorporated which commend themselves to individual justices as indispensable to the dignity and happiness of a free man, we are thrown back to a merely subjective test. The protection against unreasonable search and seizure might have primacy for one judge, while trial by a jury of 12 for every claim above $20 might appear to another as an ultimate need in a free society."
Not what I had in mind! LOL
Well, duh, I'm not complaining. But do you think that it's a first amendment issue???
What's this article about?
So dancing nude is free speech but saying something about our thieving pirate politicians sixty days prior to an election is not?
Anyone think that it is time to do something?
I always wanted to open a topless carwash...
OK, what about belly dancing?
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