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November 12, 1999 06:43pm
Out, Out, Dread Vice Cops: Shakespeare-spouting strippers test nude dancing ban
Source: Court TV
by: Harriet Ryan

Court TV — Maggie Morgan debuted as a Shakespearean actress in conditions that were less than ideal. She performed naked. The "theater" was a strip club. The sound system was broken, the lighting was dim and everyone in the audience who wasn't a cop, a reporter, or a lawyer was drunk. To cap it all, a critic labeled her interpretation of a witch in Macbeth as "wooden."

But Morgan, 24, and the other exotic dancers who took the stage in a suburban Orlando, Fla. go-go bar called Club Juana last May, don't regret a minute of their performance. They weren’t expecting to win a Tony. They wanted to draw attention to a local ban on nude dancing they claim is snobby, stupid, and patently unconstitutional.

"The law needs to be changed, and if this is what it took to change it — me naked stirring a cauldron — then so be it," said Morgan.

The scene from Macbeth and nine other "nude burlesque" numbers the women performed in high heels and little more were carefully constructed as a test case for the law, which allows nude performance for "bona fide" artistic purposes, but not in stripteases.

The March performance didn't pass artistic muster with Casselberry's vice cops, and the women were charged with violating the ban. Now, funded by the deep pockets of strip club owners, the dancers are suing to overturn the law. They argue that the First Amendment protects all free expression, including bumping and grinding, and the government has no place is judging what is and isn’t bona fide art.

In a preliminary hearing, scheduled for Thursday, local authorities are expected to argue that regulating nudity is just a way to prevent crime.

"The combination of alcohol and nudity — it's pretty common sense — it's a particularly combustible mix," explained Bradley Bettin, who is representing Casselberry in the suit.

The case of the thespian strippers got plenty of attention from the national media last spring. How could it not? Hot naked women captured on videotape with an easy-to-understand legal angle to add legitimacy? Video at 11!

But after Inside Edition and Extra! packed up, the academics rolled in. Not only is this case titillating, they said, it's a great example of American "culture wars" and how they play out in our legal system. If you want to see the clash between liberals and conservatives, look no further than Maggie Morgan's gyrating body, they said, using their own particular parlance.

"It seemed to us a perfect Foucaultian response to a hegemonic culture which says this is art and that's not art," said Lynchburg College professor Katherine Gray, who trooped to Casselberry last summer to do research and plans to present a paper on the Club Juana show at a conference next year. She added, "And it's so cheeky, don't you think?"

For decades, Seminole County had allowed totally nude stripping in contrast to neighboring Orlando, which required dancers to wear g-strings and pasties. But now with a building boom of fancy homes in Seminole, local boosters wanted to rid themselves of their reputation as cosmopolitan Orlando’s slutty stepsister. In the strip club owners' view, politicians thought driving them out of business would clean up the community. The ban went beyond just forbidding nude dancing, stipulating that the dancers had to wear full bikini bottoms as well as a bikini top. The owners were in a panic. No man was going to pay to watch woman in full-coverage swimwear.

"Why do people want to go to a club when they can see it at the neighborhood pool?" asked Steve Mason, attorney for Club Juana.

Facing extinction, the club owners wanted to sue and grasped onto the "bona fide" clause as a telling loophole in the law. The government seemed to be setting up a pecking order of art, and then determining that only some of it was worthy of expression. Mason contacted local playwright Morris Sullivan, and asked him to develop a theatrical program for a trio of exotic dancers that would confound prosecutors and push the law to its limits.

"He kind of wanted it structured so the prosecutors would have to take it apart and say, well you've got Macbeth, and Shakespeare is definitely bona fide, but the actors are nude so is that bona fide?," recalled Morris.

He is no fan of strip clubs — "I find them kind of tedious" — but Morris said he relished the opportunity to defend the First Amendment and immediately set to work. In addition to Macbeth, he adopted a S&M scene from the Marquis de Sade, scripted a parody of the Sam Spade detective novels and wrote a cybersex fantasy.

"I didn't want to put a bunch of woman on stage naked to say a few lines. I wanted it to have merit as well as testing the law," said Sullivan, who rehearsed with the dancers for six weeks.

The night of the performance about 350 people packed Club Juana. Morgan described it as a "mixed bag" of regulars, friends of the performers, lawyers, news reporters and cops in "Crime Scene Unit" jackets.

Mason, who brought his mother to the performance, sat in the back.

"From a legal perspective, I walked in there just hoping the dancers could do it and thinking, if [the police] make an arrest, we'll have a fact pattern to litigate," said Mason. "But when the performance began, I found myself craning my head to hear what they were saying. People in the audience were actually hushing each other."

There was also a fair amount of hooting and hollering by what Morgan called "the drunken beer crowd." But, in the end, she said she was much more relaxed than she had been while dancing under the ban in a bikini.

"It felt lovely. It was nice to be on stage and not be worrying 'Am I standing in the right way so that my bottoms are in place and I'm not violating the ordinance?' I could actually concentrate more on my lines," she said.

When the Club Juana dancers get their day in court, they plan to mount a multi-pronged offense. An anthropologist who studies nonverbal communication will testify that exotic dancing is an art form. A criminologist will present one report discounting links between crime and strip clubs, and another disputing the alleged drop in property values caused by strip clubs. The strongest part of their case, however, is expected to be a First Amendment defense of strip clubs.

Attorneys for the local government have pooh-poohed this idea, noting that they are regulating conduct, drinking alcohol and dancing naked, and not the content or ideas the Constitution protects.

"The First Amendment is not as black and white on this topic as some people would like to think," said Bettin, the attorney for Casselberry whose statute prohibits drinking at clubs where there is nudity. "What we're dealing with here is conduct, and you can regulate conduct. You can look at it one way — okay, you're interfering with our art, but where does it require your audience to consume alcoholic beverages. I'd think if you were truly performing art, you'd want your audience to have full command of its senses."

There are scores of cases involving strip clubs across the country, but so far the Supreme Court has yet to set a standard for dealing with them. A 1991 decision, Barnes versus Glen Theater, was supposed to clear things up, but it only muddied the waters. In that case, the court upheld an Indiana statute requiring dancers to wear pasties and G-strings, but none of the justices agreed on the reason why the statute was upheld. Even more confusing, some justices in the fractured decision took pains to make clear that stifling the "erotic message" wasn't allowed under the Constitution and wasn't the reason for the statute.

This week, the high court heard oral arguments in a case from Erie, Pa. which is likely to become the new standard for public nudity laws. In that case, the state supreme court struck down an Erie city law prohibiting totally nude dancing, saying it violated freedom of expression. One club's owner had sued after "Oh Calcutta!" — a Broadway show about sex in which performers are nude — had played in Erie without being subject to the ban.

"What the [club owner] is arguing is that they are really trying to get at eroticism, and that's content rather than conduct," said First Amendment specialist John T. Parry, an assistant law professor at the University of Pittsburgh.

He said when the court looks at First Amendment cases they ask one fundamental question: Is this law trying to regulate conduct or content?

During the Vietnam War, for example, many people expressed their opposition to the war by burning draft cards. The court upheld a ban on burning the cards because, the justices concluded, the draft boards could not function administratively if people — no matter what their view on the war — destroyed their cards.

On the other hand, the court has twice struck down flag burning laws because, they've concluded, the laws are meant to stifle content and not conduct. There are a wide variety of messages to send with a flag from patriotism to surrender to hatred, but the flag burning laws sought to regulate only one of those messages.

While no one would argue that speaking out against war or government is a First Amendment right, the right to send an "erotic message", the claim the Erie strip club owner as well as the Club Juana dancers are hanging their hats on, is a little more tenuous.

"These laws lead to a sense that nude dancing doesn't deserve as much protection as say my view on who to vote for in the next election, and once you have an order of content, that is usually viewed with some skepticism," said Parry, who added, "But really, isn't who I'm going to vote for a lot more important than nudie bars? Sure, and that's why these decisions are so close and controversial."

Maggie Morgan, however, said she doubted the decisions would be close or controversial if the powers that be saw exotic dancing the way she did. "It's absolutely an art. Any expression is art. I like the freedom of it. The way I can convey messages through movement rather than verbal communication. And I like the validation of fantasy that I get. I'm putting out messages of sexuality and longing and the audience responds to that. I get great feedback."

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