Speaking the Naked TruthrnStripping the Bill of Rightsrnby Philip JenkinsrnConnoisseurs of the odd bx’wavs of law rarel}’ find ricli materialsrnin the U.S. Supreme Court, where the deliberationsrnusually proeeed with dignit}’ and common sense. For trulyrnasinine judicial misbehavior, we normally have to look atrnstate courts. Yet this past March, the Supreme Court had beforernit a case that delighted the late-night comedians andrnlaunched a few thousand bad puns. Specifically, in the case ofrnCih’ of Erie v. Pap’s A.M., This Honorable Court determinedrnthat directing the exotic dancers of one Pennsylvania communityrnto wear g-strings and pasties did not violate the FirstrnAmendment of the Constitution.rnAt first glance, it is eas’ to trivialize a case that seems to belongrnto the lighter side of .American judicial histoPi’: There isrnsomething gloriousK’ inappropriate about such staid figures asrnDavid Souter and Sandra Day O’Connor chatting kno\inghaboutrnthe art of ecdysiasm. But the case does raise serious questionsrnabout the nature of First Amendment law, particularlvrnhow far that clause can or should be adapted to changing socialrncircnm.stances. We currentlv face severe challenges to our freedomrnof speech rights, especially in the realm of electronic communications.rnThose of us vvho have never set foot inside “adultentertainment”rnestablishments may yet regret the Erie decisionrnand others of its ilk.rnW-liat happened in the case was straightforward, although thernlogic underlying it was ani:hing but. An establishment calledrnKandyland specialized in nude dancing, a fact that reported!}rnattracted a bad crowd to the area, creating what was allegedly arn”conducive atmosphere to violence, sexual harassment, publicrnintoxication, prostitution, the spread of sexualh’ transmitted diseasesrnand other deleterious effects.” These developments pro-rnPhilip Jenkins is Distinguished Professor ofHistoB’ andrnReligious Studies at Pennsvlvania State lJniversit’.rn’olced local authorihes to impose minimum-clothing requirements.rnThe ordinances were alternately dismissed and upheldrnby a series of higher courts, until a divided U.S. Supreme Courtrneventually ruled in favor of the city, hi essence, the Court decidedrnthat nude dancing was indeed expressive conduct underrnthe Constitution, but it was onlv “within the outer ambit” ofrnspeech as determined by the First Amendment; hence, localrnauthorities could take reasonable measures to restrict it, withrnthe goal of suppressing “seeondar)’ effects,” such as crime andrnother abuses; yet the specific restrictions would have little or norneffect on crime and other abuses, and would not promote thernpublic good; but we are going to uphold the restrictions anywawrnSo the Court is banning what it regards as a conshtuhonallyrnprotected form of expression, even though it believes that thernban will not do any good. Are we clear on that? The decisionrnitself might be correct, but the logic is deeply flawed.rnWhy this decision is troubling may not be obvious to thernmany non-lawyers who read the First Amendment literally,rnfinding references to “speech” but not to other forms of communication,rnovert or implied—and certainh’ not to luide dancing.rnAccording to this iew, original intent means that wernshould protect speech, whether spoken or written, but generationsrnof judicial activism have led to this concept beingrnstretched to include nude dancing. That is misleading. Thernamendment itself uses the words “freedom of speech and of thernpress,” but it is a cry small leap to read those words as “speech,rnand the ob’ious means b which we express our meaning as ifrnin speech.” Writing and printing are simply examples of analogiesrnto speech. Some forms of communication are less “obviousrnmeans” than others, and the courts have been slower to recognizernthem, but extensions of speech they certainh’ are. huaginernthat, during the murderous NATO airstrikes on Yugoslavia lastrn’ear, I had stood silend outside the White flousc, carrv’ing arn16/CHRONiCLESrnrnrn