No G-Strings Attached
Supreme Court Ruling on Nude Dancers Won't Affect Austin ... Yet
By Jonathan David Carroll
MAY 29, 2000: It's a steamy Saturday night at The Show Palace, and the place is packed. Cigarette smoke and inebriated young men fill the room. The crowd cheers as the disc jockey introduces the next dancer. Loud dance music begins, drowning out all other sounds. A dancer strips and prances on stage, as men brandish dollar bills to get her attention.
Because of a recent ruling by the U.S. Supreme Court, scenes like this could be outlawed. On March 29, the court upheld by a 6-3 vote an Erie, Pennsylvania, ordinance that requires dancers to wear at least a G-string and pasties when they perform. Under the new ruling, local governments can require dancers to cover up, in order to prevent the "secondary side effects" of nude dance clubs, which, according to some studies, include increased incidence of crime and prostitution, and depreciation of surrounding property values.
The ruling has prompted some cities and counties to overhaul their sexually oriented business ordinances. But in Austin and Travis County, most local officials say little will change. "The county hasn't had any problems," Travis County Judge Sam Biscoe says. "There haven't been any constituents saying they are being personally harmed, [and] until the public alleges a harm, we'll regulate where they can be located, but not content."
Jim Marchak, senior manager of Sugar's Uptown Cabaret, says additional regulations wouldn't put him out of business, anyway. "This bar has been here for 18 years. That's a long time. In that time, many other bars and restaurants have come and gone," he says. "This place does more good than harm."
But if the American Family Association had its way, there would be greater restrictions in Austin, says Loralei Gilliam, executive director of the conservative group's Texas chapter. "Austin is such an incredible city," she says. "I'd like to see the city and the county work to continue to make it a greater place to live. Further restricting nude bars would lower the crime rate, which would make Austin a better place to live."
A 1997 study on strip clubs and sexually oriented businesses by the National Criminal Justice Reference Service, a research arm of the U.S. Department of Justice, would seem to agree. It cited the following secondary effects: crime, decreased property values and tax revenues, traffic, noise, litter, and the spread of sexually transmitted diseases. Yet, only a year earlier, a study by the same agency revealed altogether different findings in relation to crime and strip clubs. In a survey of 18 law enforcement agencies, the reference service found no significant crime reports in or near sexually oriented businesses within the agencies' jurisdictions. The violations most often associated with these businesses were prostitution and sex on the premises. Moreover, the vast majority of the action taken against these businesses did not come from public complaints or any other agency -- but occurred because unit officers were monitoring the businesses.
Additionally, a review by the Texas Alcoholic Beverage Commission of local strip club records over a six-year period, starting in 1991, found only a smattering of felony charges on the books: some 17 so-called "lewd/immoral/sex" felonies (a category which includes prostitution, indecent exposure, and public sexual contact), which occurred at four Austin nude bars: The Crazy Lady (7), Penthouse Men's Club (4), Exposé (3), and The Yellow Rose (3). The last time citations were issued for such crimes was in 1997, when The Crazy Lady, Penthouse Men's Club, and The Yellow Rose were all cited. The Austin Police Department, for its part, declined to comment on the secondary effects of strip clubs.
"There's no proof that going to a totally nude bar is going to make someone go out later and rob a liquor store or go smoke crack cocaine," Marchak, of Sugar's, says. "Someone's probably more likely to do that after they play laser tag. It's opinion-based, it's not fact-based."
Still, it's an opinion to which the U.S. Supreme Court has given some legal standing. The Supreme Court ruled over 20 years ago that nude dancing can be a protected form of expression under the First Amendment. But in 1991, the court said that local governments could require dancers to cover up at least a little. In the 1991 case Barnes v. Glen Theater, Justice David Souter wrote in a majority opinion that the government could essentially assume that destructive secondary effects result from the presence of nude dancing establishments.
The Erie ruling defines the standard even more specifically. "This change has added an extra layer in the onion," says Kevin Morse, assistant county attorney for Travis County. "Before, counties could only mandate time, place, and manner. This ruling gives them the power to effect content, in order to deter corollary effects."
In her opinion for the majority, Justice Sandra Day O'Connor said that under the appropriate analysis, such a regulation needed only to further the government's legitimate interest in reducing lewd behavior and prostitution, rather than accomplish it fully.
"It may also be true that a pasties and G-strings 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."
But she also said, "To be sure, requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects."
Jay Jacobson, executive director of the American Civil Liberties Union of Texas, disagrees with the court's ruling. "I find the argument unconvincing, first of all, that putting pasties and G-strings on dancers is going to reduce the crime in the area," Jacobson says. "People are still going to come. It may reduce the traffic, but not by much.
"To me that leaves the door open for greater restriction. Because the city now can come back and say, 'Well, we put the pasties and G-strings on them, but the problem didn't go away. Now we're going to require more clothing.'"
While the court's ruling applies to strip clubs, it doesn't touch the question of nudity in theatrical performances, which may allow a loophole for strip clubs. "If one of these clubs wanted to come within the ordinance, they could put on little plays and be legal," Jacobson says.
For now, though, it's business as usual at local strip clubs. "We regulate the distance where these businesses can be located near schools and churches," Biscoe says. "This is working. Residents aren't complaining, and they aren't trying to take action. Until something like this happens, things will stay the same." Austin Assistant City Attorney John Stiner echoes this: "It's not an issue," he says -- and it won't be unless elected officials decide to make a change.
Jacobson thinks this could change, though. "I could easily see a group of outraged citizens concerned about other people's moral behavior that doesn't conform to their own putting a lot of pressure on the City Council," Jacobson says. "It's easier to submit to that kind of pressure than it is to fight, and I don't think you win a lot of votes by supporting nude dancing."
Morse disagrees. "We live in an area where the First Amendment is held in high regard," he says. "It's a college town with a high influx of intellectuals. We don't get stagnant. I don't think this will happen."
Marchak also doubts the ruling will affect Austin. "I don't think anything will happen because the people in these businesses have two things: clout and money. They'll make the lobbyists fight over it. These people [club owners] have deep pockets."
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