Ban on Nude Dancing Backed by High Court : Judiciary: The 5-4 decision says public’s ‘moral disapproval’ outweighs the right of free expression.

The Supreme Court Friday gave communities broad powers to ban nude dancing, ruling that the public’s “moral disapproval” of nudity outweighs the First Amendment’s protection of free expression.

The 5-4 decision stands as a significant high court pronouncement on the limits of free speech and expression. The conservative justices said they are not willing to read the Constitution broadly to protect expressive conduct that offends the majority.

The court’s position marks a reversal from two years ago, when a different 5-4 majority struck down all laws forbidding the burning of the American flag. Next year, the justices will consider the issue in another context: May government punish the symbolic burning of a cross, or is that, too, a form of expressive conduct?

Friday’s ruling raises, without answering, the question of whether artists and gallery directors have a constitutional right to exhibit works that are deemed offensive by city officials.

Government has the authority to protect “societal order and morality,” including the power to forbid “expressive activity” within the confines of a private establishment, Chief Justice William H. Rehnquist said for the court.

However, the immediate practical impact of Friday’s ruling is limited.

Nineteen years ago, in the case of California vs. LaRue, the high court said states may use their constitutional power to control alcohol sales as a basis for banning topless dancing in bars and nightspots. In subsequent decisions, the court has made clear that cities or counties may forbid such dance performances anywhere alcohol is served.

In this case, Indiana officials used the state’s public indecency law to prosecute not only nude dancers who worked in bars and clubs but also those employed at establishments where no alcohol was served.

Last year, a federal appeals court in Chicago ruled that the Indiana prosecutors were violating the First Amendment. Nudity on public streets and beaches can be banned, the appeals court said, but nude dancing in private establishments is a form of protected expression.

Rarely does the Rehnquist court rule against a state government, and the majority was true to form Friday.

The decision involved a case from South Bend, Ind., in which owners of JR’s Kitty Kat Lounge joined an adult bookstore and three dancers to challenge the state’s public indecency law, which prohibited them from dancing nude.

Nude dancing is “expressive conduct within the outer perimeters of the First Amendment,” the chief justice conceded. Nonetheless, states clearly have the power to forbid public nudity through their public indecency laws, he said.

“Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity,” Rehnquist said. “Indiana’s requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state’s purpose.”

Only Justices Sandra Day O’Connor and Anthony M. Kennedy joined Rehnquist’s opinion in the case (Barnes vs. Glen Theatre, 90-26).

Justice Antonin Scalia said he would go further and declare that nude dancing is not expressive conduct entitled to any First Amendment protection.

Justice David H. Souter cast the decisive fifth vote but upheld the Indiana law on narrower grounds. Nude entertainment may be banned, not because of moral disapproval, but because of its potential “secondary effects” of encouraging “prostitution, sexual assault and associated crimes,” Souter said.

State officials and conservative groups applauded the court for upholding the indecency law.

“The First Amendment is not an altar on which American families must sacrifice the traditional values that made this country great,” said Thomas L. Jipping, director of the Free Congress Foundation. The 5-4 ruling gives “a green light for communities to aggressively enforce basic standards of decency,” he said.

Free speech advocates said they feared Rehnquist’s opinion could have a broad impact.

“This is a dangerous and disturbing decision because it says free speech can be censored in the interest of public morality,” said Stephen Shapiro of the American Civil Liberties Union in New York. “They took on the issue of nude dancing but ending up writing an essay, and a bad essay, on the First Amendment.”

Eliott Mincberg, legal director of People for the American Way, said the decision is “potentially troubling” for artistic groups. Rehnquist’s opinion states no exceptions for such productions as a ballet that includes nudity or the counterculture musical “Hair,” he noted.

Last year, officials in Cincinnati tried to close down an art gallery’s exhibit of Robert Mapplethorpe photos on the grounds that they were obscene. The effort failed when a jury concluded that the works were not obscene.

“Rehnquist’s opinion suggests the city fathers in Cincinnati could have accomplished the same thing by invoking their public indecency statute,” he said.

At the same time, Souter’s narrow opinion suggests that he would not support a broad attack on nudity in artistic works, Mincberg added.

Friday’s decision provoked an odd scene in the courtroom. Tourists who arrived to see the justices solemnly take the bench were surprised to then hear the chief justice discoursing on the First Amendment implications of “pasties and G-strings.”

Meanwhile, in their written opinions, two justices engaged in a remarkable exchange over nudity in the Hoosier Dome, the sports arena in Indianapolis.

In his concurring opinion, Scalia said that the court had never adopted the “Thoreauvian ‘you may do what you like, so long as it does not injure someone else’ beau ideal. The purpose of Indiana’s nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosier Dome to display their genitals to one another, even if there were not an offended innocent in the crowd.”

In dissent, Justice Byron R. White said he agreed with Scalia’s observation, but not with its application to private establishments. “No one can doubt, however, that those same 60,000 Hoosiers could be perfectly free to drive to their respective homes all across Indiana and, once there, to parade around, cavort or revel in the nude for hours in front of relatives and friends,” he said.

Despite the view expressed by the court’s majority, the state law is not an absolute ban on nudity, but a ban on it only in certain public areas, White said. In barrooms, “the viewers are exclusively consenting adults who pay money to see these dances,” he said.

“That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the court, is hardly an excuse for distorting and ignoring settled doctrine,” White said. “The court’s assessment of the artistic merits of nude dancing performances should not be the determining factor in deciding this case.”

White was joined by Justices Thurgood Marshall, Harry A. Blackmun and John Paul Stevens.