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.
Both the 14th Amendment & Article VI applies ~all~ of the Constitutions supreme law to ~all~ levels of government in the USA.
"Incorporaton doctrine" is a legalistic way to ignore 'politically incorrect' personal liberties.
tarkin:
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)
Justice Harlan said it best:
"[T]he full scope of the liberty guaranteed by the Due Process Clause `cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution.
This `liberty´ is not a series of isolated points pricked out in terms of the taking of property;
the freedom of speech, press, and religion;
the right to keep and bear arms;
the freedom from unreasonable searches and seizures; and so on.
It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints, . . .
Obviously, it is a "purposeless restraint" to ban nude dancing in a private club.
There's one of those in Atlanta.
They usually remove the purposeless restraints by the second song.
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