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1/6/2000

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The naked truth about free speech

 

It's been a long time since I visited a place where frolicking women take off their clothes to undulating music and colored lights. In fact, the only lap dancing I'm really familiar with is the type my daughters used to do before they could walk.

It's also been a long time since I've seen some really good Shakespeare. But now, thanks to a decision by Circuit Judge O.H. Eaton Jr. -- who recently ruled that a night of theater at a local dance club last spring that included a nude scene from "Macbeth" was both bona fide art and legal -- I can, should I wish, see both at the same time.

That is, of course, if nobody actually dances.

Confused? You should be. The legal ramifications of this strange case are as tricky as the false-bottom glasses in which exorbitantly priced beer is routinely sold at dance clubs, and as murky as the atmosphere in which adult entertainers generally perform. But it's all part of the continuing battle between freedom of expression and outraged moral sensibilities that's been part of the American landscape since the dawn of our Constitution.

This particular story began when Mike Pinter, the owner of Club Juana, decided to challenge a Seminole County anti-nudity ordinance. He recruited Morris Sullivan, who directed three of Pinter's dancers in a show Sullivan wrote called "Les Femmes Fatale" (see Stripped-down theater, 3. June, 1999), and which included the Shakespeare bit. Following the performance, the three dancers were fined $100 apiece under a Casselberry law that prohibits nudity in any establishment that sells alcohol.

But that law includes language that prevents it from conflicting with Seminole County's statutes. And Seminole permits nudity when it "constitutes a part of a bona fide live communication, demonstration or performance by a person wherein such nudity is expressive conduct" required to make a point.

Given that fact, two of the dancers filed suit, hoping to block enforcement of the Casselberry law that kept them from "acting" in the nude again.

It was this exception that Judge Eaton noted when he ruled that the nude excerpts from Macbeth constituted not only protected speech, but was, in fact, a political satire aimed squarely at the law under which the performers were subsequently arrested. "Broadway quality it is not," wrote Judge Eaton. "But the performance is not ‘adult entertainment' (nude dancing) as much as it is ‘entertainment for adults.'"

Thus Eaton has determined, in effect, that nude acting, however bad it may be, is constitutionally protected free speech, while nude dancing, however artful, is still illegal. Or as Shakespeare might have said, "Foul is fair and fair is foul."

And yet, even though Eaton has attempted to be just -- and was actually able to touch upon some of the humor in this amalgam of conflicting arguments -- something extremely troubling has resulted from his contradictory opinion: the continued qualifying of free speech into what is permissible and what is not.

You cannot parse free speech. The only acceptable restriction on public communication is on language that effectively puts a person in harm's way. Therefore, you may not yell "fire" in a crowded theater, and you can't use speech that inflames others to acts of violence. So, while you can restrict speech to protect a person, you can't restrict it in order to protect a person's sensibilities. Yet the laws of both Seminole County and the city of Casselberry attempt to do just that. And Judge Eaton has only compounded the problem by choosing one form of expression over another, leaving it to other jurists to disentangle the snare.

When King Solomon had to decide what to do with a baby two women claimed as their own, he ruled that the child should be cut in half with an equal portion given to each. He correctly guessed that the real mother would rather give up her child than see it harmed. The false claimant was ready to accept half a baby, but the real parent protested. Thus, the wise king saved the child's life and identified the true parent.

In this case, however, the plaintiffs -- the nude "actresses" -- say they are happy because they successfully challenged their arrest, while the City Attorney for Casselberry, Donna McIntosh, called the judge's ruling a victory because he ruled that nude "dancers" still had to stay covered up.

Here you have both "parents" content with half a baby, but the fact is that the baby itself -- freedom of expression -- is dead.

And so the battle goes on. Pretty soon, we'll have nude juggling that is outlawed but nude mime that is acceptable. More raids, arrests and court costs will be borne by nonviolent ecdysiasts who just wanna have fun. And I'm still searching for a really good "Macbeth."

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