At Kandyland the girls dance naked. That much is clear. But are these ballerinas of bump and grind clothed in a constitutional g-string? That is the subject of today's homily.
"Congress shall make no law," says the Constitution, "abridging the freedom of speech." What is the meaning of "speech"? Is it simply expression? Any kind of expression? The word is harder to define than "alone," which recently puzzled the moral leader of the free world.To the dictionaries! Speech, says Random House, is the ability to express one's thoughts and emotions "by speech sounds." It is "something that is spoken; an utterance." It is a form of communication in spoken language. Merriam-Webster is to the same effect. American Heritage adds nothing useful. The New World Dictionary distinguishes a speech from an address, an oration and a lecture, but this gets us constitutionally nowhere. The point is that all of the lexicographers define "speech" only in terms of the SPOKEN word.
Over the past 68 years the Supreme Court has taken a far more expansive view. In 1931 the court struck down a California law that made it a crime to display a red flag. The case involved a teacher at a summer camp with communist connections. Chief Justice Charles Evans Hughes reasoned that the flag was a form of political "expression" and was thus protected by the First Amendment.
Since then the high court repeatedly has upheld symbolic speech as distinguished from oral speech. In 1968 the court upheld an act of Congress prohibiting the mutilation of draft registration cards, but the rationale rested chiefly upon the federal power to raise armies and support a navy.
What about the naked dancers of Kandyland? In 1994 the city of Erie, Pa., adopted an ordinance making it unlawful for any person "intentionally to appear in a public place in a state of nudity." (The law provides an exception for children and nursing mothers.)
The owners of Kandyland challenged the ordinance as a violation of the dancers' right to free expression, and they won. Said the Supreme Court of Pennsylvania:
"The act of dancing nude, with its attendant erotic message, is an expressive act entitled to First Amendment protection. We can say this with certainty because a majority of the United States Supreme Court recently enforced such a view in Barnes v. Glen Theatre (1991)."
Erie petitioned the Supreme Court for review.
There is no wholly satisfactory solution to this dispute over the meaning of "freedom of speech." When a Kandyland cafe or a Kitty Kat Lounge invokes the First Amendment, the amendment is trivialized. It is not symbolic speech, because it symbolizes nothing. One of the South Bend dancers, asked why she wished to dance in the nude, said that she makes more money that way. James Madison, why are you rolling in your grave?
I doubt that the high court will accept the Erie case. The court has better fish to fry, but at some point the court must directly answer the question: When is "speech" speech?
Universal Press Syndicate