Courtrooms in the Clouds:
The Law and the Skin Trade in the Windy City

The Decision in Kandyland

By J. D. Obenberger, Attorney at Law
© MM J. D. Obenberger, All Rights Reserved

Sandra Day O’Connor doesn’t think that there is any significant communicative difference between nude performance dancing and the same dance performed with pasties and a g-string. She says that the difference, if there is any at all, is “de minimis”, a Latin expression used in American law to mean “none worth noticing”.

She has a right to her opinion, just as anyone does.

The problem here is twofold.

First, she is dead wrong.

Second, she was writing not only for herself but also for three other persons, and all four are justices of the United States Supreme Court. This involves the Supreme Court’s March 29, 2000 decision in City of Erie v. Pap’s A. M. Kandyland. The High Court in Kandyland reversed a decision of the Pennsylvania Supreme Court, where the Pennsylvania court had invalidated an Erie, Pennsylvania ordinance.

Her mistake, painfully obvious to just about anyone who has ever seen erotic dance, is now part of the rationale for the law of the land. It is now enshrined and ennobled by its place in the history of American constitutional law. This is so despite the certain knowledge of its falsity by anyone who reads these words.

She is willing to admit, with the three other justices, that nude dancing is within at least the outer limits of the protection afforded by the First Amendment. But, she concludes, a law which pretends to be neutral about the content of the expression can lawfully regulate the time, place, and manner of expression. And she believes that the state of nudity of the entertainer is just an element of “manner”. One that is just not important. Well, if the difference between nudity and scanty clothing is of inconsequential expressive effect, then why, exactly did Erie proscribe it? The Erie city fathers knew that the expressive content of the nudity was powerful, and it is that primary effect of communication and expression that their law silenced.

A regulation concerning the time, place, and manner of expression is valid if it serves an important interest unrelated to expression. One of the troubling questions for Justice O’Connor is how a law requiring the covering of a few inches of skin advances any government interest at all. How such a law advances any legitimate governmental interest of Erie unrelated to expression, is what is really de minimis. The law in question is a cynical attempt to apply a varnish and veneer of constitutional purpose on an ordinance that is fundamentally censorial in intent and effect.

This is all in the context of a law that, on its face, bans all nudity, including expressive nudity, in Erie, Pennsylvania. A law which the Court knew was ignored in Erie when a “legitimate” theater company performed Equus, a play with a nude scene. No, Sandra Day O’Connor does not think that it is of constitutional importance that the law was enforced only to target expression that the censors sitting as municipal council members in Erie thought was lowbrow. There was ample evidence and even the admissions of lawyers for the city that it was enforced in a manner that suggested censorship of nude entertainment of the type that offended the censorial, capricious, and arbitrary judgment of local officials. The essence of the First Amendment is to provide a free market of expression so that each of us can pick and chose what expression we want. On the other hand, it is the essence of censorship that someone else determines what choices we will have in a restricted market of expression.

But let us get back to her assumption that nudity just doesn’t convey much and that nude dance and seminude dance amount to the same thing.

It is her brother on the Court, Mr. Justice Stevens who, in a dissent joined by Justice Ruth Bader Ginzburg, noted that “Despite the similarity between the two forms of dance, they are not identical.” He goes on to note that the patrons of Kandyland understand the difference even if Justice O’Connor doesn’t. That difference is clearly expressive to anyone with eyes.

And that’s the point. If this activity is protected by the constitution, a position adopted by Justice O’Connor, the three justices who joined her, and the two dissenters, a majority of all of the sitting members of the Supreme Court, one cannot dismiss as trivial a difference that all of the patrons readily understand: nudity v. seminudity.

There is a significant difference between the austere empty stage, devoid of sets, typical of theater in the round, and the lavish set design of the Chicago Lyric Opera. They each achieve a creative artistic purpose. Costume and design are an integral part of expression. This is all the more true in erotic dance. Does the plurality headed by Justice O’Connor truly believe that the difference is insignificant? Does anyone believe that a nude dance establishment and a bikini club, sitting next to each other, serving the same beverages and creating the same atmosphere, would attract the same audiences? And isn’t precisely the more effective expression of an erotic theme that would make the difference in which club the patrons chose to attend?

Justice O’Connor asserts that the ordinance in question merely regulates the means of expression, while leaving open ample alternative channels (seminude dance) for the expression. The dissent, written by Stevens, again notes the problem: It simply would be impermissible under our First Amendment to censor and ban a book because it is too effective at expressing its message while justifying the censorship by noting that other books with the same theme or message are available. Censorship is Censorship, and in all of its forms, it is unacceptable in our free society. And yes, this value is precisely the kind of thing for which we send young Americans off to war to protect.

In context, the decision in Kandyland is not earth-shaking. It makes no new law. It merely again asserts the doctrine articulated by the Supreme Court in its 1991 decision in Barnes v. Glenn Theater, upholding Indiana’s law banning nudity state-wide. These decisions not only reflect the growing intolerance of our society and its public institutions, but they fly in the face of American values: The same week when this decision was announced, a national poll disclosed that 70% of Americans polled believed that nude dancing was protected by the United States constitution.

You can count me with that seventy-percent of my fellow-citizens. It is a large majority which understands what four members of our highest Court just don’t get, a reality that is not taught in law schools nor in scholarly treatises nor in the briefs of litigants: What happened in Erie is unconstitutionally un-American, and it is a tragic shame that our Supreme Court passed up on the opportunity to say so.

This article is written to generally inform the public and does not provide legal advice nor does it establish an attorney-client relationship. If you have a legal issue or question, contact a lawyer. If you are arrested, make no statement and contact a lawyer immediately.

Joe Obenberger is a Chicago Loop lawyer concentrating in the law of free expression and liberty under the United States Constitution, and his firm has represented many owners, employees, and customers of adult-oriented businesses, both online and in the real world. He can be reached in the office at 312 558-6420 or paged in any emergency at 312 250-4118. His e-mail address is xxxlaw@execpc.com