Washington -- When the women who dance at the Kitty Kat Lounge in South Bend, Ind., are dressing, so to speak, for work, putting on, as they would rather not, pasties and G-strings, their talk may well turn to constitutional law and to laments about the retirement of Justice William Brennen.
His replacement, Justice David Souter, voted with the majority that, had Mr. Brennen been there, would have been a minority last week. The Supreme Court ruled, 5-4, that the First Amendment protection of free "expression" is compatible with Indiana's law prohibiting total nudity in public places.
The dissenters (Byron White writing, joined by Thurgood Marshall, Harry Blackmun and John Paul Stevens), agreed why they would rule Indiana's law unconstitutional. The majority justices had three different reasons for the opposite conclusion. Because First Amendment law is so encrusted with bad decisions, all nine justices missed the main point.
An appeals court held that the nude dancing at the Kitty Kat is "inherently expressive," communicating an erotic message, so Indiana's law is forbidden by Madison's amendment. But Chief Justice Rehnquist, joined by Justices Sandra Day O'Connor and William Kennedy, said nude dancing in barrooms is only "marginally" within "the outer perimeters of the First Amendment." This "expressive conduct," although performed only for consenting adults, conflicts with Indiana's legitimate interest in "order and morality." Most states have such laws against appearing nude among strangers in public.
Justice Souter stressed not Indiana's right to promote morality but its right to combat evils -- the secondary effects of "adult entertainment establishments," including prostitution and other crimes. The new justice indicated that he thinks the Constitution is friendly toward nudity in ballet or serious plays. Justice Souter said that nudity is a condition, not an activity, and that Indiana is targeting the condition, not any expressive activity. He notes that one of the women challenging Indiana was, when this case began, starring in a pornographic movie showing near the Kitty Kat without interference from Indiana.
The Supreme Court has previously said there can be "some kernel of expression" in almost every activity, if only expression of the thought that the activity should be undertaken. But Indiana is proscribing nudity, the condition, not just an erotic "message." Chief Justice Rehnquist said, safely, that "the appearance of people of all shapes, sizes and ages in the nude at a beach" would hardly convey eroticism but would be illegal, which proves Indiana is not stomping on expressive activity. Anyway, pasties and G-strings only make the dancers' message (the justices had a videotape) "slightly less graphic."
However, Justice White scored a palpable hit when he said: How can Mr. Rehnquist say the law is designed to protect morality but that the activity the law bans expresses no morally-relevant message?
Justice Antonin Scalia's concurring opinion came closest to a satisfactory way of sustaining Indiana's law. He said the Rehnquist opinion erred in arguing that the First Amendment is even peripherally germane. Indiana's law is not like the unconstitutional law banning flag burning. That law prohibited particular conduct precisely because of its expressive attributes.
Indiana's law would be faulty if it targeted only expressive nudity. (Justice Scalia conceded that the dancing is expressive, and "expression" implicates the First Amendment.) But Indiana evenhandedly prohibits nude beaches, nude hot dog vendors, even a gathering of "60,000 fully consenting adults crowded into the Hoosierdome to display their genitals."
Although it is hard to imagine John Marshall or Oliver Wendell Holmes worrying about such stuff, the decision did implicitly make a serious point: Communities as well as individuals have rights. But is it necessary to be so convoluted and oblique in reaching that conclusion?
The Kitty Kat dancers' complaint against Indiana, and now against the court, is impeccably Reaganite: the cry of small business against government regulation. Dancers are, or were when litigation began, paid commissions on drinks sold while they dance. Some say they make more money dancing nude.
Does that mean their "expressive conduct" is commercial speech, meriting only modest First Amendment protection? The court can grasp that nettle when next (such is the court's itch for First Amendment fine-tuning, there will be another case) the court defines constitutional dress for almost-nude dancers.
It is evidently impossible to get the court to take seriously the fact that Madison -- who would find the Kitty Kat amazing but not more so than the notion that the First Amendment is germane to what transpires there -- purposely wrote an amendment that protects not "expression" but speech, the use of words. That activity is indispensable for reasoning and persuasion, and hence for democratic government, which is the point of the Constitution and its amendments.
George F. Will is a syndicated columnist.