Supreme Court Nixes Nudity

The Supreme Court last week upheld an Erie, Pa., ordinance that required nude dancers to wear a minimal amount of clothing--namely pasties and a G-string. The context would be comical, were it not for the serious threat the ruling poses to basic principles of free speech.

The rationale behind the ruling was not that nude dancing itself is an unworthy form of expression--the court has consistently found this kind of activity under the protective umbrella of the First Amendment--but that the state has a legitimate stake in limiting so-called "negative secondary effects." Nude dancing at adult establishments, the city reasoned, leads to increased rates of crime and prostitution and decreases in surrounding property values. Accepting this line of reasoning, the court upheld the ordinance.

It almost goes without saying that the mere addition of pasties and G-strings is hardly a well-documented method for keeping out the riff-raff. To believe otherwise, as Justice John Paul Stevens wrote in his dissent, "is nothing short of a titanic surrender to the implausible." Even the plurality opinion expressed similar skepticism. Nevertheless, the court upheld the ordinance on the grounds that the city did not necessarily need to prove a correlation between nude dancing and crime. It needed only to show that the ordinance would somehow further the city's interest in controlling such negative effects, rather than solving the problem completely.

Such a loose standard is both dangerous and misleading. It is dangerous because it opens the door for states to restrict almost any kind of speech on flimsy theories of cause and effect. Nude dancing at a strip bar and nude dancing at the ballet are two entirely different kinds of speech. Yet the city's ordinance allows the government to ban both in the name of fighting crime. The court's decision, wrote Justice David H. Souter '61, ignores that evidence of negative effects "must be a demonstrated fact, not speculative supposition."

The court's ruling is misleading because it implies the city ordinance sidesteps any normative judgement on the content of the expression. In reality, the ban is an across-the-board affront to basic free speech principles. If nude dancing at adult establishments did indeed lead to higher crime rates or severe property devaluation, the city could have used a number of non-speech related means to control the effects. Certain zoning laws might allow for more efficient law enforcement and could limit the extent to which the surrounding property is devalued. Instead, as Justice Stevens wrote, "the City of Erie has totally silenced a message the dancers...want to convey. The fact that this censorship may have a laudable ulterior purpose cannot mean that censorship is not censorship."