I bring this up due to some changes in the town by-laws that I read about in the Tewksbury Crier. Specifically there was a reference in that paper that Tewksbury actually has an area designated for Adult Entertainment. Well, I'm passing on this information to everyone to inform town council, the various town boards, and the citizens of Tewksbury that we do not and should not have ANY area that will allow nude dancing of any kind. AND NOW THE SUPREME COURT IS FINALLY ON THE SIDE OF THE TOWNS !
READ ON !!!
From the New York Times March 30, 2000
By LINDA GREENHOUSE
WASHINGTON, March 29, 2000 -- The Supreme Court ruled today that cities and states may ban nude dancing as a way of combating the crime and other "negative secondary effects" associated with establishments offering that kind of entertainment.
In its 6-to-3 vote upholding an Erie, Pa., ordinance that requires dancers to wear at least pasties and a G-string, the court's fractured majority did not explain how that requirement would in fact reduce the crime, prostitution, sexual assaults or other problems associated with places where
dancers appear nude.
"To be sure, requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects," Justice Sandra Day O'Connor conceded in her opinion for a plurality of four justices. But Justice O'Connor said that under the appropriate First Amendment analysis, such a regulation needed only to further the government's legitimate interest rather than accomplish it fully.
"It may also be true that a pasties and G-string requirement would not be as effective as, for example, a requirement that the dancers be fully clothed," she said, "but the city must balance its efforts to address the problem with the requirement that the restriction be no greater than necessary to further the city's interest."
In its decision the court took up where it left off nine years ago, when an even more splintered majority upheld an Indiana public indecency law that also banned nude dancing.
Then, as now, the court ruled that nude dancing -- as opposed to simple public nudity -- was a form of expression that had at least some minimal protection under the First Amendment but that could nonetheless be regulated under an appropriate standard.
The court failed in the Indiana case to settle on a standard, and did only marginally better today as Justice David H. Souter changed his mind from the earlier decision on the amount of evidence cities need to justify
banning nude dancing.
In the 1991 case, Barnes v. Glen Theatre, Justice Souter said the government could essentially assume that "pernicious secondary effects" would result from the presence of nude dancing establishments. But while the
plurality today -- Justice O'Connor with Chief Justice William H. Rehnquist and Justices Anthony M. Kennedy and Stephen G. Breyer -- adopted that approach, Justice Souter said he had since concluded that a city should have to provide evidence both of "the seriousness of the threatened harm" and "the efficacy of its chosen remedy."
"I may not be less ignorant of nude dancing than I was nine years ago," Justice Souter said, "but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a
government must toe the mark more carefully than I first insisted." He said that because Erie had not provided any evidence, the case should be sent back to the lower courts to give it the chance to do so.
The majority judgment to support Erie's ordinance, overturning a 1998 decision of the Pennsylvania Supreme Court
that declared it unconstitutional, came from the addition of Justices Antonin Scalia and Clarence Thomas to the four-justice plurality. They said, in a concurring opinion by Justice Scalia, that there was no need to consider the presence or absence of "secondary effects" because "the traditional power of government to foster good
morals (bonos mores) and the acceptability of the traditional judgment (if Erie wishes to endorse it) that nude public dancing itself is immoral have not been repealed by the First Amendment."
Justices John Paul Stevens and Ruth Bader Ginsburg dissented from the court's approach as well as the application to this case. In a dissenting opinion by Justice Stevens, they said that while the court had used the secondary-effects doctrine in the past to justify relegating adult businesses to special adult entertainment zones, it had never approved it "to justify a total ban on protected First Amendment expression." Erie's ordinance, adopted in 1994, applies throughout the city.
Referring to the former nude dancing club whose owner challenged the ordinance, Justice Stevens said: "The City of Erie has totally silenced a message the dancers at Kandyland want to convey. The fact that this censorship may have a laudable ulterior purpose cannot mean that censorship is not censorship." The decision, he said, had "grave implications
for basic free speech principles."
One question in the case, City of Erie v. Pap's A.M., No. 98-1161, was whether the court should have dismissed the city appeal as moot after being informed by Pap's A.M., the club's owner, last summer that Kandyland no longer had nude dancing.
In explaining the decision not to dismiss the case, Justice O'Connor said today that the city was entitled to a decision because it was suffering the "ongoing injury" of not being able to enforce its law. Justices Scalia and Thomas said that in their view, the case was moot.
On the merits of the First Amendment issue, Justice O'Connor said it was significant that the law's target was conduct, not expression. "It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity," she said.
As such, she said, the case was governed by the lower level of First Amendment scrutiny the court applies to content-neutral
laws that regulate conduct and have only an incidental effect on expression.
The court first announced that test in a 1968 decision that upheld the prosecution of people who burned their draft cards, on the ground the government had a legitimate interest in making sure that draft cards were available.
Justice O'Connor said that Kandyland might have challenged, in the lower courts, the Erie City Council's assumptions about the secondary effects of nude dancing, but did not.
That led John H. Weston, a Los Angeles lawyer who represented Kandyland at the Supreme Court, to find a potential silver lining in the decision. In an interview, he said the decision meant that lower courts must give those who challenge laws of this type in the future "a meaningful opportunity to evaluate and scrutinize the underpinnings of the legislation."