High court refuses to hear 5 cases challenging nude-dancing regulations
David Hudson
First Amendment Center
04.04.00
Yesterday, the U.S. Supreme Court refused to hear five cases challenging various restrictions on nude dancing.
The high court turned down two Washington state cases, Colacurcio v. City of Kent and DCR, Inc. v. Pierce County; two Tennessee cases, Déjà Vu of Nashville, Inc. v. Metropolitan Government of Nashville and DLS, Inc. v. City of Chattanoogs; and an Alabama case, Sammy's of Mobile, Ltd. v. City of Mobile.
All of the cases featured challenges to an assortment of city or state regulations affecting nude dancing. Several of the cases alleged that buffer zones between nude dancers and their patrons violated First Amendment free-expression rights.
For example, the Colacurcio case featured a challenge to the city of Kent's rule providing that "no dancing or adult entertainment by any entertainer shall occur closer than ten (10) feet to any patron."
The high court's refusal to hear these cases was attributed by several adult-entertainment attorneys to its March 29 opinion in City of Erie v. Pap's A.M.
In Pap's, a majority of the court determined that Erie's ordinance prohibiting public nudity was content-neutral and constitutional. Justice Sandra Day O'Connor wrote that "the ordinance prohibiting public nudity is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing."
In his dissent, Justice John Paul Stevens pointed out that the so-called "secondary effects doctrine" grew out of adult-entertainment zoning cases, not direct restrictions on the performance dances themselves. In fact, Stevens himself was the first Supreme Court justice to use the "secondary effects" term in the 1976 decision Young v. American Mini-Theatres, Inc.
Luke Lirot, a Tampa, Fla.-based First Amendment attorney who represented the adult businesses in Sammy's, said the court's refusal to hear the cases was "not surprising."
"The court definitely overlooked a lot of arguments in the Pap's case," Lirot said. "It was truly disappointing."
Bradley Shafer, the attorney for Déjà Vu, contended that the court's denial of Déjà Vu of Nashville, Inc, was "somewhat surprising."
"We had put before the court the exact evidence that the court said in Pap's was necessary to litigate the issue of whether adult businesses cause adverse secondary effects," Shafer said.
Shafer refers to a passage in O'Connor's Pap's opinion in which she writes: "Here, Kandyland has had ample opportunity to contest the council's findings about secondary effects. … Yet to this day, Kandyland has never challenged the city council's findings or cast any specific doubt on the validity of these findings."
"We will most likely file a motion for reconsideration before the high court," Shafer said.
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