By columnist James J. Kilpatrick. 

    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 highly different.

    “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 protection.”

    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 months probation.

    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.

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