Even while banning one form of entertainment, Erie, Pennsylvania's law against public nudity has provided another: a comedy in which aging jurists debate the crime-fighting properties of pasties and G-strings. At times, the U.S. Supreme Court's recent decision to uphold Erie's ordinance seemed to hinge on the difference between totally nude and virtually nude.
Justice Sandra Day O'Connor, in an opinion joined by three other members of the Court, confirmed that nude dancing merits some First Amendment protection. But she found that Erie's ordinance was a permissible attempt to control "crime and other negative secondary effects caused by the presence of adult entertainment establishments."
O'Connor conceded that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects." Justice Antonin Scalia, in an opinion joined by Justice Clarence Thomas, was even less optimistic. "I am highly skeptical," he wrote, "that the addition of pasties and G-strings will at all reduce the tendency of establishments such as Kandyland [the strip club that challenged the ordinance] to attract crime and prostitution."
In Scalia's view, however, that didn't matter. Because the ordinance was "a general law regulating conduct and not specifically directed at expression," he said, it was "not subject to First Amendment scrutiny at all." Hence the city's desire "to foster good morals" was justification enough.
Although they disagreed about the need to invoke "secondary effects," none of the six justices who voted to uphold the law questioned their existence. Rather than require evidence that places like Kandyland actually create the problems for which they are often blamed, the Court deferred to the "particularized, expert judgments" of the Erie City Council.
To anyone familiar with the way politicians operate, that's almost as funny as the idea that pasties and G-strings are vital tools of public health and safety. These guys never have to prove anything; they simply assert their preconceptions and take a vote.
The preamble to Erie's ordinance declares that "certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity."
These "findings" seem to be based on nothing more than hunches and personal impressions. As Justice David Souter noted in his dissent, the city did not offer any evidence of the "secondary effects" about which it was supposedly concerned.
That's probably because there's not much evidence to present. A paper that was submitted to the Court along with a brief from the First Amendment Lawyers Association found little basis for the claim that "adult" businesses cause neighborhood decay.
Daniel Linz, a professor of communication at the University of California at Santa Barbara, looked at the 10 studies that are most often cited to justify regulation of sexually oriented businesses. "With few exceptions," he found, "the most frequently used studies are seriously and often fatally methodologically flawed."
The flaws include the use of subjective survey responses, inadequate matching of the neighborhoods surrounding "adult" businesses with control areas, and the failure to take into account the impact of bars and increased police surveillance on crime rates. "Those studies that are scientifically credible," Linz reported, "demonstrate either no negative secondary effects associated with adult businesses, or a reversal of the presumed negative effect."
Given the lack of evidence for "secondary effects"--not to mention the implausibility of controlling them with pasties and G-strings--it is more intellectually honest to justify a law like Erie's on traditional moral grounds, as Scalia suggested. But that approach opens the door to banning any activity that offends the majority. And if the people who enjoy that activity can't manage to shoehorn it into the First Amendment or some other constitutional provision that judges are keen to defend, they're out of luck.
Do we really want to live in a country where politicians need not respect our choices unless they fall under the heading of a right enumerated in the Constitution? If minority tastes count for nothing without an amendment to back them up, all of us are in trouble, because all of us like something--whether it be eating sushi, riding motorcycles, or keeping ferrets--that most people do not.
Every time we allow moral indignation to triumph over tolerance, we make our own freedom a little less secure. That's the sort of secondary effect that people should worry about more.