State Supreme Court cans nude dancing ban

0 Comments | La Crosse Tribune, Jun 19, 1998

The Wisconsin Supreme Court on Thursday struck down as unconstitutional a Pierce County town's ordinance banning nude dancing.

The court said the ordinance violates the right of free speech.

But don't expect that kind of entertainment in La Crosse bars, said Peter Kisken, assistant city attorney.

"Our nude dancing ordinance is more specific, very tightly drafted and much more narrowly defined," said Kisken, who won a challenge of the ordinance by owners of the former Varsity Club in 1996.

The Supreme Court's ruling came in a case brought by Lounge Management Ltd., barred by a municipal ordinance from featuring nude performers at the Border Lounge, a nightclub it runs in the Pierce County town of Trenton.

The ordinance bans public nudity in "licensed establishments."

Pierce County Circuit Court Judge Robert Wing upheld the constitutionality of the ordinance, but Lounge Management appealed that decision to the Third District Court of Appeals, which passed it directly to the Supreme Court.

Lounge Management contended the ordinance violates the First Amendment and is overly broad.

The Supreme Court agreed, although Justices Donald Steinmetz and Jon Wilcox dissented.

The ordinance bans all public nudity, not just nude dancing, Justice Ann Walsh Bradley wrote for the majority, saying there are several hypothetical situations in which the ordinance would infringe on constitutionally protected freedom of expression.

The situations include any nudity occurring in "public licensed establishments," including hotel rooms, campgrounds, taverns and theaters, she said.

"Nude dancing (includes) an element of self-expression and is entitled to at least some degree of constitutional protection," she wrote.

In addition, the ordinance can be read to ban all forms of nude expression, including the public exhibition of artwork depicting nudity, Bradley said, although the town -- and Wing agreed -- that the ordinance bans only nude dancing in establishments licensed to sell liquor.

"The (Trenton) ordinance doesn't limit its application to establishments licensed to sell alcohol," Kisken said. "Rather it applies to all publicly licensed establishments. That was the primary difference between the Trenton ordinance and the city of La Crosse's ordinance."

The La Crosse ordinance prohibits anyone holding a Class B liquor license from allowing or engaging in performance of acts or simulated sexual acts, actual or simulated touching, caressing, fondling or displaying of sexual areas of the body or showing films or slides depicting such acts.

Four citations were issued in 1996 to the Varsity Club, 408 S. Fourth St., by a police investigator who said dancers in the bar on May 1, 8, 15 and 23 wore G-strings that "showed cleavage of the buttocks" and engaged in "certain prohibited conduct including actual and/or simulated touching, caressing and fondling" of certain body parts.

Lawyer Ann Brandau, representing Varsity Eagle Inc., which operated the tavern, argued that the ordinance was "vague and overbroad."

Kisken noted that Brandau's challenge was rejected by then-Municipal Judge Edmund Nix, who ruled that the city could suspend the club's liquor license.

"The La Crosse ordinance is exactly the same as the ordinance that was upheld in three U.S. Supreme Court cases," Kisken said. "and in those cases, the U.S. Supreme Court upheld those ordinances ... based on the 21st Amendment."

Kisken said the 21st Amendment, repealing Prohibition, gives municipalities authority to control activities conducted by businesses holding liquor licenses.