In the midst of all the heavy talk at grilling Monica
and ousting Bill. It may be a relief to turn today to an absolutely unrelated
and lighter topic: Under what circumstances do Vanessa and John have a
constitutional right to go buck naked in public?
Vanessa Doe is a topless dancer in New York. John
Hubert Moll is a supporter of President Clinton in Florida. Both of them
have petitioned the Supreme Court to hear their cases.
It should be said for the record that the petitioners
have a better chance of winning Powerball than they have of winning high
court review. The Supremes have a dull sense of humor.
The case of Vanessa Doe originated in 1996 as a
challenge to a zoning ordinance that would have ostracized topless dancers.
Vanessa was displaying her terpsichorean talents, bare-breasted, at the
Cozy Cabin in Queens. Adele Buzzetti, proprietor of the establishment,
joined in the suit.
The ladies contended through counsel that the effect
of the ordinance is to put them out of business. Their customers would not
be drawn to a Cozy Cabin situated in some grimy Industrial zone. As a constitutional
matter, they say, the ordinance denies them equal protection of the law.
This is their argument:
"There is a substantial demand in New York City
for bare-chested erotic dancers. No one disputes that this market Includes
both male and female performers. These dancers are similarly situated in
every relevant respect ...
"New York City has nevertheless enacted a zoning
ordinance to regulate topless clubs that draws and invidious gender distinction.
It subjects only those clubs that Feature female performers to onerous
land-use restrictions that will force many of them to relocate or close.
On the other hand, the ordinance leaves male erotic dancers free to perform
bare-chested in clubs located throughout New York City, without jeopardizing
the stages upon which they dance."
The city's justification for the ordinance lies
in “secondary effects" on the community that are associated with topless
entertainment. The city had empirical no evidence to prove that bare-breasted
women produce anti-social effects that bare-chested men do not produce,
but District Judge John S. Martin Jr upheld the ordinance anyhow.
The U.S. Court of Appeals for the 2nd Circuit affirmed:
"Given New York City's objective, which is not to
oppress either gender's sexuality but to control effects that flow from
publica reaction to the conduct involved, we must recognize that the public
reaction to the exhibition of the female breast and the male breast are
“The male chest is routinely exposed on beaches,
in public sporting events and the ballet ... In contrast, public exposure
of the female breast is rare under the conventions or our society, and
almost invariably conveys sexual overtones. It is therefore permissible
for New York City to classify female toplessness differently from the exhibition
of the naked male chest. This does not constitute a denial of equal
The case of John Hubert Moll involves a question
of free speech under the First Amendment. In 1995, Brevard County adopted
an ordinance forbidding public nudity. On April 14, 1996 Moll went to
a public beach, nattily attired in a sign bearing a political message:
"Vote for Clinton/Gore 96." He was arrested, fined $50, and put on six
I have no quarrel with the lower court opinions
in the two cases. Indecent exposure has been punished by law since time
immemorial, and the courts repeatedly have addressed the matter of public
nudity. Just a few months ago, the Supreme Court refused to review a case
from Texas raising the identical issues posed by Vanessa of Queens.
Yet constitutional questions continue to arise,
and litigants pay good money to file petitions with the high court.
The law on nudity appears to be clearer than the law In other fields.
Under a 1967 case, public nudity may be forbidden if an anti-nudity ordinance
(1) furthers an important government interest in protecting social order
and morality, and (2) does not abridge First Amendment freedoms beyond a
point essential to enforcing that interest.
This strikes me as a reasonable rule. Social order
and morality are not endangered by a mother's breast-feeding of her baby.
No “secondary effects” may be anticipated from the horrid sight of a 2
year-old toddling naked toward a sprinkler. Political protest is not stifled
by an ordinance requiring a Clinton/Core fan to keep his clothes on. It
seems little enough to ask.
August 7, 1998 WASHINGTON
John Moll argued in a petition to the U.S. Supreme Court for the right
to not be forced by law to wear clothes. He was represented by Attorney
Rex Curry. This is a column that was written by the famous columnist
James J. Kilpatrick. On a tangentially related matter, the following
link is of a local Lady Godiva event in Tampa, Florida, where the lady (and
her horse) was completely naked, except for the sign. http://members.ij.net/rex/godiva.jpg