from NWSA Journal Volume 14, Number 2

Naked Politics: Erie, PA v the Kandyland Club

BRENDA FOLEY

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The recent Supreme Court ruling in favor of Erie, Pennsylvania against the Kandyland Club, which upheld a city ordinance prohibiting the club's dancers from performing in the nude, exemplifies what Kathy Davis has defined as "society's impulse to keep women's bodies under 'constant surveillance'" (1997, 11). The case illustrates complex, often contradictory, assessments of the empirical and metaphoric significance of the female body, specifically as it is presented on stage, and also raises issues of sexual control, of the distinctions between speech and conduct, and of a seemingly deliberate judicial misreading of the expressive elements of exotic dancing. Naked Politics argues that the Kandyland case is a particularly blatant incident in a long history of patriarchal efforts to regulate the theatrical display of women's bodies, and that the Court's ruling reveals its allegiance to a presumptive "moral" code more sacred (to itself) than the Constitutional protections it is sworn to uphold.

Keywords: exotic dancing / judicial misreading / surveillance

To argue that certain speech acts are more properly construed as conduct rather than speech sidesteps the question of censorship.

—Butler (1997, 132)

Introduction: Leilani Rios and the Suppression of Contagion

In March 2001 a short Reuters news article reported that Leilani Rios, a sophomore at the State College in Fullerton, California, had been forced to leave the college's track team because of her part-time job as an exotic dancer at the Flamingo Theater. The coach of the team justified his disciplinary action by declaring "her decision to remain an exotic dancer would detract from the image and accomplishments of her teammates, the athletic department and the university" (Excite News 2001). The coach, John Elders, also explicitly positioned himself as the team's (and the college's) moral guardian, stating, "I have to protect the kind of image that we represent" (Keichline 2001, n.p.).

Leilani Rios's job was discovered when members of the Cal State Fullerton baseball team (who remained anonymous) patronized the Flamingo Theater and subsequently reported her employment to the track coach. Although Rios herself had not been wearing any item that might have publicly indicated her affiliation with the college, the baseball team members were all outfitted in Titan caps and sweaters. Their image apparently remained unsullied, however, for no disciplinary action was taken against them for their attendance at the Flamingo, whereas Rios, who was using the money earned at the club to pay for her Cal State education (thus enabling her to become the first person in her family to earn a college degree) was summarily dismissed from her team.

"Conditions of embodiment," notes Kathy Davis, "are organized by systemic patterns of domination and subordination, making it impossible to grasp individual body practices, body regimes and discourses about the body without taking power into account" (1997, 14). The action taken by the Cal State Fullerton track coach, while interpretable as an individual judgment characterized by unfairness and the application of an obvious double standard, was also indicative, in a larger sense, of a "systematic pattern" of regulation and containment of the female body, one that is endemic in the United States. Elders's paternalistic belief that, as track coach, he wielded both the power and the responsibility to define the off-field activities of his female student-athletes as either appropriate or deviant is clearly revealed in his comment to the college's newspaper. "I had to really do some soul searching," he declared, "about what I really felt was the right thing . . . what's best for Leilani and what's best for our program" (Keichline 2001, n.p., author's emphasis). His dismissal of Leilani Rios, and the language he used in its justification, simultaneously infantalized Rios's ability to choose what was best, and declared a policy prohibiting performative expressions of female sexuality (if not their appreciation by customers), a prohibition enforceable by means of banishment. Coach Elders's assumption—unstated but explicit in his actions—that there is nothing wrong with seeing an exotic dancer but something unacceptable about being one, is a familiar anomaly in the American attitude toward stripping. Briefly stated, this assumption exonerates exotic dancing's spectator as an innocent observer of performance, yet denies similar recognition to the performer, whose routine is taken at face value as lewd and suggestive conduct rather than a theatrical expression invented for the entertainment of the observer. Such an inference naturally calls the moral character of the exotic dancer into serious question, so the retributive action of expelling Rios from the track team might thus be construed as an attempt to avoid an apparent source of contagion. Coach Elders's assumption that exotic dancing reveals and promulgates an immoral and contagious self whose pathogenic effects require containment might be dismissed as reactionary and rooted in a familiar double standard. Yet his behavior finds precedent—one might even say sanction—in the judgment of the United States Supreme Court, which, only a year before the Rios incident, used similar language and similar logic in its own struggle with the issues raised by performative female sexuality.

In February 2000, the Court upheld previous appellate rulings in what had become known as the Kandyland Case, concurring with "the acceptability of the traditional judgment . . . that nude public dancing itself is immoral" (City of Erie v PAP's A.M., 529 U.S. 277 [2000], 6). The Court further upheld that such display "had negative secondary effects on the community" and, as "expressive conduct" rather than speech, was considered on the "outer ambit" of the First Amendment and thus subject to a "less stringent standard" of scrutiny (1–3). The Cal State Fullerton track coach was in heady company in his marginalization of Leilani Rios. The city of Erie, Pennsylvania had sought to regulate the performances of exotic dancers at the Kandyland Club, all of whom were female, by banning complete nudity and insisting that dancers wear a minimum of pasties and a G-string, thus ostensibly protecting the community from the "harmful secondary effects associated with nude dancing" (Justice O'Connor, joined by Justice Kennedy and Justice Breyer). The remarkable similarity of the decisions by the Supreme Court and John Elders, grounded in assumptions of contagious negative secondary effects as well as a deliberate misreading of exotic dancing's theatrical basis, can be read as symptomatic of an authoritarian attempt to use the fringe positioning of exotic dancers as a means by which particular moral boundaries might be delineated and enforced. Additionally, assumptive cultural prejudices that institutionalize certain entertainment forms as highbrow or lowbrow often function as de facto instruments for keeping those who participate in activities of the latter kind perpetually peripheral to the supposed construct of an acceptable center. As Patricia Williams has noted, "the extent to which technical legalisms are used to obfuscate the human motivations that generate our justice system is the real extent to which we as human beings are disenfranchised" (1991, 139). The telling use of the phrase "outer ambit" in the Supreme Court ruling solicits the "disenfranchisement" of exotic dancers in two ways: metaphorically, as deviants who act without regard for culturally sanctioned norms of behavior; and concretely, as virtual scofflaws who teeter precariously on the edge of legal protection. This article will explore issues of theatrical misapprehension and ideological hegemony in the legal interpretations of [im]morality, historical precedent, conduct versus speech, and the constituent aspects of protected performance, in the Supreme Court's ruling in favor of Erie, PA over the Kandyland Club.1 I will argue that the Supreme Court's insistence on hearing Erie, PA v Kandyland Club as a case of conduct rather than freedom of speech perpetuated a socially mandated hierarchy of appropriate female behavior on the stage, a hierarchy rooted in the imposition of an extra-legal moral code of bodily deportment. Having accepted the legitimacy of such a code, prima facie, the Court found itself obliged to justify its ideologically dependent decision in law, a process which led it to ignore or deny significant historical, legal, and performative evidence against the Erie case, and, conversely, to assert, inflate, or distort the value of statutes and precedents interpretable as favoring that case. A review of Erie, PA v Kandyland Club suggests that a majority of the U. S. Supreme Court, like Coach John Elders, was prepared to resort to any available shelter, in rhetoric or in law, in order to protect the rights of communities to suppress what they perceive as affronts to decency, specifically in the regulation of exotic dancing. This impulse, as I shall show, rests far less on legal or community standards of conduct than on a deep and amorphous anxiety regarding the public display of the female body, and it was this anxiety, not legal or statutory suasion, to which the Court ultimately responded in upholding Erie's censorship of Kandyland's exotic dancing.

Content Neutrality and Moral Approbation: A History

The culture of any society at any moment is more like debris, or "fall-out," of past ideological systems, than it is itself a system, a coherent whole.

—Turner (1974, 14)

The historicity of the policing of the female body on the stage in the United States may or may not be traceable as a coherent whole, but it nonetheless reflects a system of patterns, or debris, that continually reiterates a calculated attempt by various factions of society to curtail and contain public expressions of female sexuality. Extrapolating from Mary Douglas, Robert Allen notes, "the discourse of ordinating groups frequently falls back on the imagery of the body in an attempt to protect or redefine moral and social boundaries" (1991, 153). Because the Erie statute purportedly aimed at nudity in general and was "not specifically directed at expression" (16), it was deemed by the Supreme Court to be neutral, and therefore constitutional. One of the arguments emphasizing the neutrality of the Erie statute held that it was simply an update of one provision of an "Indecency and Immorality" ordinance that purportedly had been on the city's books since 1866, "predating the prevalence of nude dancing" (PAP's A.M., 10; Barnes v Glen Theatre, Inc., 111 Sup. Ct. 2456).

Leaving aside for the moment considerations of how one might possibly characterize the labels Indecent and Immoral as in any way neutral, it is worth noting that the year 1866 arrived during a period of exceptional public outrage—and titillation—over the exposed female form on the American stage. As early as 1860, the actress Laura Keene had startled the public with a production of Seven Sisters, prompting one reviewer's notice of the "hundred miscellaneous legs in flesh-colored tights" (Dudden 1994, 143). In 1861, Adah Issacs Menken scandalized audiences in Mazeppa, when she emerged onstage astride a live horse, clad only in a pink bodystocking and tunic. She reprised the role five years later, in 1866. While each of these events attracted its own notoriety, the hyperventilated media coverage of the musical extravaganza The Black Crook could not possibly have gone unnoticed, even in Erie. During the 1865–1866 season at Niblo's Garden in New York, this "melodrama in spectacle form" was presented, immediately inciting a volatile public debate concerning women, performance, and morality (Allen 1991, 109). Newspapers described the female performers as "demons" with "scarcely a rag left upon them to take off" and the Times reviewer noted the women wore "no clothes to speak of" (qtd. in Allen 1991, 111–12).

The year 1866, when Erie, PA put into effect its neutral Indecency and Immorality ordinance, was a year in which silent, barely clothed female performers became the talk of the country. Moreover, according to Allen, it was in the 1860s that "burlesque became something for bourgeois culture to watch—both in the literal sense of deriving pleasure from its spectacle of feminine physical display and in the sense of exercising moral oversight" (1991, 108). In this light, the city of Erie's year 2000 attempt to cite an 1866 statute, as an example of political neutrality with respect to the female form onstage was ill informed at best. At worst, it was patently false. Erie's effort to substantiate its argument historically was rendered an absurd charade when, as the Supreme Court's Justice Stevens noted in his dissent, the cited 1866 ordinance was found not actually to exist in the city's books. In other words, the city of Erie used a cultural memory of a particular ruling that could not be tangibly produced, a spurious reliance that seems to justify Roland Barthes's appealingly cynical notion that "the retrospective is never anything but a category of bad faith" (qtd. in Bank 1997, 167). Notwithstanding this egregious frailty, the Supreme Court accepted Erie's "content neutral" argument, a decision that soundly supports Nadine Strossen's observation that:

[T]he First Amendment's broadly phrased free speech guarantee—"Congress shall make no law . . . abridging the freedom of speech"—contains no exception for sexual expression. Nevertheless, the Supreme Court has consistently read such an exception into the First Amendment, allowing sexual speech to be restricted or even banned under circumstances in which it would not allow other types of speech to be limited. (1995, 38)

The O'Brien Standard: Precedent, Prejudice, and Application

The acceptance of content neutrality by the Supreme Court was possibly the most significant turning point in the case. Webster's definition of neutral that would seem to be the one drawn on by the Court reads: "without strongly marked characteristics; indefinite, indifferent, middling," in other words, not strongly expressive of any one thing in particular. In effect, the Court's decision relegated the case to the "outer ambit" of First Amendment issues, in that "what level of scrutiny applies is determined by whether the ordinance is related to the suppression of expression. . . . If the government intention is the regulation of conduct and not a deliberate attempt to suppress expression, the ordinance need only satisfy the 'less stringent,' intermediate O'Brien standard" (5). This crucial distinction, imposing standards of conduct rather than speech on the Erie case, was rooted in a precedent involving the burning of a draft registration card. In that case, the "Court rejected [the] claim that the statute (prohibiting the destruction of draft cards) violated his [O'Brien's] First Amendment rights, reasoning that the law punished him for the 'noncommunicative impact of his conduct, and for nothing else'" (PAP's A.M., 10, author's emphasis; see U.S. v O'Brien, 391 U.S. 367 [1967]). Under this "intermediate" standard, the Erie ordinance might be viewed as one that regulates conduct alone and does not specifically "target nudity that contains an erotic message" (Justice O'Connor). Therefore, all public nudity is banned. On the surface, such an injunction might seem plausible, particularly in a community willing to argue that it perceived an actionable threat to order from random displays of the naked human body. Yet, during the same year that it sought to impose this ordinance on the dancers and proprietors of Kandyland, Erie played host to stage productions of Equus and Hair, both plays in which nudity occurs. Additionally, at the trial court proceeding, counsel for the city said, in reference to the ordinance, "to the extent that the expressive activity in [such] productions rises to a higher level of protected expression, they would not be covered" (PAP's A.M., 6). Counsel also stated that the city was not "aware of the nudity" and had not enforced the ordinance because "no one had complained" (27). Justice Scalia asserted that "one instance of nonenforcement—against a play already in production that prosecutorial discretion might reasonably have 'grandfathered' in—does not render this ordinance discriminatory on its face" (17).

This extraordinary section of the Court's opinion is worth unpacking. Why should a single production of a play warrant grandfathering when an entertainment form that can arguably be traced back at least as far as the early 1860s does not? Is lack of complaint a measure by which laws are enforced? Is it possible that a production of Hair could be running in Erie and not be noticed by anyone serving as an official of the city? Perhaps the answer lies in the ordinance's preamble, in which the city council found that "certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare" (PAP's A.M., 5). Still, the "group nudity and simulated sex" in Hair was "protected speech," as Justice Scalia imagined Erie town officials had concluded. Clearly, a particular kind of cultural discrimination was at work in the Court's reasoning, one that positions exotic dancing as lewd, yet finds that Hair rises to a standard worthy of being protected. Notwithstanding the fact that Hair itself owes its origin to precisely the sort of marginalized social experience condemned by both the Court and the Erie ordinance, this dichotomy amply illustrates Lawrence Levine's description of cultural hierarchy, a construct governed by:

[T]he sense that culture is something created by the few for the few, threatened by the many, and imperiled by democracy; the conviction that culture cannot come from the young, the inexperienced, the untutored, the marginal; the belief that culture is finite and fixed, defined and measured, complex and difficult of access, recognizable only by those trained to recognize it, comprehensible only to those qualified to comprehend it. (1988, 253, author's emphasis)

A judicial distinction separating legitimate from illegitimate culture was evidently anticipated in one Erie Council member's refusal even to categorize exotic dancing as entertainment, a classification that might be construed as a protected form of speech: "We're not talking about nudity. We're not talking about the theater or art. . . . We're talking about what is indecent and immoral. . . . We're not prohibiting nudity, we're prohibiting nudity when it's used in a lewd and immoral fashion" (PAP's A.M., 23). If, however, as the council member asserted, the issue at hand was not "nudity," not "theater or art," but morality, it becomes increasingly difficult to recognize in the court transcripts exactly where the critical concept of neutrality can be applied. Throughout the text of the delivered opinion, and certainly in the city of Erie's preamble to the ordinance, there resides a consistently moralistic assumptiveness which can only be characterized as at best condescending, and at worst stigmatizing (and legally prejudicial) to exotic dancers. Still, the case against Kandyland required as much assistance as possible in order to sidestep the difficulties presented by the United States Constitution's guarantee of freedom of speech. The acceptance of content neutrality and the application of the O'Brien standard not only allowed Erie, and the Court, to avoid the inconvenience of the First Amendment, but also to take full advantage of a rich lode of historic and cultural antipathy toward sexual display in women, and even toward women themselves. In order for the case to meet the content neutral restriction and be judged according to the O'Brien standard, four criteria needed to be met. According to the Supreme Court:

First, the ordinance is within Erie's constitutional power to enact because the city's efforts to protect public health and safety are clearly within its police powers. (PAP's A.M., 5)

The opening criterion explicitly established nude dancing as a "public health and safety" issue, thus objectifying the naked female form as a site of contagion, a plague metaphor not unlike that of Joseph Swetnams, who in 1615 described woman as "bright in the hedge, black in the hand" (qtd. in Fraser 1994, 28). Since acceptance of the exotic dancers' corporeal toxicity was crucial to the attempt to legitimize any move toward containment, pathologizing the dancers in the context of public health and safety thus granted plausibility to the medically authoritative notion of quarantine. This conceptual tactic finds correspondence in Coach John Elders's action, which emphasized the expulsion of Leilani Rios from his track team as a result of his responsibility to protect it.

The conception of "woman as symptom" assumes a discursive role in linking community/public safety with Kandyland and its dancers (Johnson 1998, 22). The fully-exposed female body is perceived as a precursor of social decay (the etymology of which is "de [down] plus cadre [to fall]"), in effect a simultaneous literal manifestation of diseased leprous flesh and a crumbling social fiber (Hodges 1985, 83). Additionally, the idea of decay as a "fall" in the context of women's behavior connotes Eve and her unfortunate disruption of the community in Eden. For the "safety" of the community, monitoring and regulating the nude female body is therefore justifiable. Such monitoring, as a hedge against the threat of moral condemnation based on appearance only, recalls Great Britain's Contagious Disease Act of 1864, under which women suspected of prostitution were hauled off to the police station for inspection. As Nadine Strossen emphasizes:

Because the obscenity laws allow—indeed, direct—the majority in any community, and the members of any jury, to criminally punish sexual depictions that they dislike or disapprove, these laws squarely violate the viewpoint neutrality principle that the Supreme Court has called the "bedrock" of our proud American free speech tradition. If the expression concerned any other subject, First Amendment law would protect it against majoritarian sanctions, no matter how hated it might be. (1995, 55)

The second O'Brien criterion is actually an extension of the first, bolstered with important references to evidentiary precedence:

[T]he ordinance furthers the important government interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing. In terms of demonstrating that such secondary effects pose a threat, the city need not conduct new studies or produce evidence independent of that already generated by other cities, so long as the evidence relied on is reasonably believed to be relevant to the problem addressed. (PAP's A.M., 5)

The precedent cited for such an "evidentiary foundation" (Renton v Playtime Theatres, Inc., 475 U.S. 41 [1986]) had nothing to do with exotic dancers and their nudity, but rather was a case involving issues of zoning: "secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood" (PAP's A.M., 3). This liberal use of precedent regarding the dispute between the Kandyland Club and Erie, PA was foregrounded in Justice Stevens's dissenting opinion (joined by Justice Ginsburg). Stevens argued that "dramatic changes in legal doctrine" were being "endorsed" by the Court in this case (19). He specifically pointed to the use of evidentiary material that had previously been accepted only with regard to zoning, to the regulation of the location of adult entertainment buildings. "A dispersal that simply limits the places where speech may occur," argued Stevens, "is a minimal imposition whereas a total ban is the most exacting of restrictions" (21). Notably, there already existed in Erie an ordinance that dealt with zoning restrictions. That ordinance, however, according to one council member, had simply never been enforced. In Justice Stevens's and Justice Ginsburg's opinions, the Erie ordinance sought to ban the message being conveyed by nude dancing, and so was unconstitutional in light of the dancing's entitlement to protection as speech. The intentional conflation of the female body with the space it occupies, as indicated in the language of the majority opinion presented by Justice O'Connor, at once dehumanized its targets (hence erasing any concern for speech), and continued the judicial attempt to fix boundaries whereby contagion and its mobility might be minimized.

Of course, the cross-referential imagery of women as buildings (and buildings as women) has an extensive history. In the fourteenth century, Henri de Mondeville characterized bodies as houses, and a woman's body in particular as that which could only "be maintained as such by constant surveillance of its openings" (Wigley 1992, 358). Leon Battista Alberti's fifteenth-century treatise on The Art of Building in Ten Books warns that buildings should not be "colored and lewdly dressed with the allurement of painting . . . striving to attract the eye of the beholder, and divert his attention from a proper examination of the parts to be considered" (qtd. in Wigley 1992, 355). The Supreme Court's ruling once again imagined the female body as an architectural space subject to regulation by zoning, a structure whose facade or frontal appearance can be legislated—in this case by the application of a pastie. The ruling is, therefore, essentially a way to "house" particular perceptions of women, and in a larger sense to inhibit the mobility of female sexual expression, with the object of preventing its escape from the bounds of societal control.

Perhaps even more illuminating than the Court's employment of the woman-as-architecture metaphor is the absence of any distinction between exotic dancers and prostitutes noted in the Erie preamble, which stated that it sought to adopt the regulation:

[F]or the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects. (PAP's A.M., 10)

The erroneous conflation of theatricalized portrayals of sexuality with actual engagement in sex characterizes much of Catherine MacKinnon's anti-pornography work as well, suggesting a refusal to recognize the construction of performative artifice in exotic dancing: "If speech were seen through an equality lens, nude dancing regulations might be tailored to ending the sex inequality of prostitution, at the same time undermining the social credibility of the pimp's lie that public sex is how women express themselves" (1993, 85). In MacKinnon's view, "public sex" and "nude dancing" are one and the same, since "to express eroticism is to engage in eroticism, meaning to perform a sex act. To say it is to do it, and to do it is to say it" (33). MacKinnon would then seem to characterize nude dancing as an illocutionary act, whereas the city council members, who also linked exotic dancing and prostitution, would appear to define it as perlocutionary, ascribing blame for huge social dilemmas on nothing more than revealed nipples and pubic hair. In spite of their differing conclusions, however, both critiques rest on a foundation that ignores fundamental distinctions, in both behavior and intent, between prostitution and exotic dancing.

As if aware of the air of irrationality surrounding the city of Erie's stance, one council member made an attempt to minimize the effect of the ordinance by acknowledging that "the girls can wear thongs or a G-string and little pasties that are smaller than a diamond" (PAP's A.M., 27). As Justice Stevens asserted, however, "To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible" (21). Still, the "less stringent" standard of O'Brien "requires only that the regulation further the interest in combating such effects" (6). One can only infer that the council's wish to enforce its gesture of authoritative control, rather than the intention to secure any actual reduction in "deleterious effects," was the impetus behind the city's suit. In any case, Erie's judicial right to regulate entertainment on the basis of its presumed effect on public morality was affirmed by Justice O'Connor in her statement:

The council members, familiar with commercial downtown Erie, are the individuals who would likely have had first-hand knowledge of what took place at and around nude dancing establishments there, and can make particularized, expert judgments about the resulting harmful secondary effects. (5)

In O'Connor's phrasing, the council members were intriguingly positioned as experts on the threat to their city's commercial prospects and, simultaneously, as spectators with "first-hand knowledge of what took place." The inference suggests an ambivalence in which the members sought the knowledge to be gained from their exposure to the contagion of the naked female, while alternately desiring, and exercising, the power to proscribe the message conveyed by her nudity. How "first-hand" their knowledge may have been remains a matter for speculation, but apparently (in the spirit of Alberti) they gave "a proper examination of the parts to be considered." In the end, the conservative city council created an ordinance that, reminiscent of Justice Potter Stewart's infamous 1964 line, knew obscenity when it saw it.

The third O'Brien criterion, which stipulates that the "government interest is unrelated to the suppression of free expression" (PAP's A.M., 6), was met in this case by the "content neutral" condition (a condition, as discussed earlier, that stressed particular behaviors as non-communicative conduct and therefore not entitled to protection as speech). The fourth criterion, directing that "the restriction is no greater than is essential to the furtherance of the government interest" (6) was deemed satisfactorily met as well. According to the Court's opinion, the "ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimus" (too negligible to merit consideration) (14).

Revelations of Self and the Denial of Artifice

The satisfaction of these last two O'Brien criteria created an apparent contradiction, for if the ordinance was not suppressing expression per se, how could it carry even de minimus impact on the "expressive" element of the dancing? What is revealed in this seeming conundrum is a legislative (and legalistic) perception of exotic dancing that blends assumptions of an autobiographical display of "self" with presumptions of intent in the performance of sexuality. "Conduct" is perceived to originate in the actions of a "self," subject to regulation by custom and statute, whereas "expression" is legally protected as an entertainment construct not necessarily indicative or representative of a performer's interiority. No one brought suit against Nicole Kidman during the Broadway production of The Blue Room because of its categorization as legitimate entertainment, its cultural acceptance as artistic expression, and hence its protection under the First Amendment. No one doubted Kidman was "acting" or regarded her performance as non-communicative when she appeared nude on stage. This distinction was crucial to the success of the Erie City Council's suit, which rejected exotic dancing's performative artifice as non-existent or too insubstantial to consider, regarding it instead as merely provocative and unacceptable "conduct." Yet numerous statements by exotic dancers refute the interpretation of their work as a revelation of some personal "truth" displayed through or by conduct, and emphasize their artificial revelations of "self" as performance only. In interviews, for instance, dancers have repeatedly stressed the overwhelming importance of production elements to their acts. Lights, costumes, music, and staging all contribute to achieving a desired expressive effect: "I wouldn't do it without the lights and the music and the makeup and the props and the action because it just seems kind of ridiculous otherwise" (qtd. in Scott 1996, 38). Exotic dancing's reliance on technical and visual elements as essential components of its meaning suggests a constant and complex negotiation between the performance act and performer's approach, one hardly interpretable as anything but an artificial, expressive construct. As one dancer put it:

What's going through your head as a performer—you know, you have a routine down to that music and you have to do certain things at certain times and your facial expressions, your hand movements, your body movements, what you're taking off, what you're doing, is all running around in your head at the same time . . . And your facial expressions have to hide all that. (68)

The composition of the event requires a performance approach that focuses on exterior display, an intentional manipulation of signifiers to suggest personal intimacy and communication of a self. In this way, according to Erving Goffman, the nude dancer might be seen to "set the stage for a kind of information game—a potentially infinite cycle of concealment, discovery, false revelation, and rediscovery" (1959, 8). The "calculated unintentionality" utilized by the exotic dancer is a performance approach designed to encourage audience reception of a projected sexuality, a reception made manifest in the accumulation of dollar bills (9). This kind of calculated performance to achieve a desired effect is far more than solely an example of conduct. Indeed, in this instance Justice O'Connor equated the performance of exotic dancing with a previous case involving "a demonstration intended to call attention to the plight of the homeless," in which the Court assumed "arguendo, that sleeping can be expressive conduct" (PAP's A.M., 11, author's emphasis). The appearance of an intimate relationship with customers is no less valid, as expressive entertainment, just because the stripper is named Mona rather than Nicole Kidman. That the impression of personal intimacy, of self-revelation, is entirely manufactured is the fundamental assumption of one dancer's succinct statement:

I didn't get into them personally. I got into them as you would a piece of grass, "How are you, grass, how are you today"—it's a protection from myself. You put up a wall between you and what's really going on. (qtd. in Scott 1996, 65)

This dancer's comment suggests a distancing of her self from a constituted and projected persona, not unlike Goffman's description of the body as a "peg" upon which one hangs a particular self, a self which is "not an organic thing that has a specific location" (1959, 252). The deliberately artificial self, as a complex set of negotiations between performer and spectator, is equally evident in the following dancer's explanation of her performance approach:

When I'm workin, I'm there for one reason—I take my clothes off. I would never take my clothes off anyplace else. When I'm a dancer, the guys have to think I'm tempting—it's like acting, you have to be glamorous, you have to be sexy, you have to move your hips. You gotta wear a lot of lipstick, you have to be fake, you have to turn these guys on. (Meiselas 1976, 122, author's emphasis)

The ascription by audience members of a dancer's exposed self, while integral to the performance, cannot negate its fictive foundation. As Goffman points out:

While this image is entertained concerning the individual, so that a self is imputed to him, this self itself does not derive from its possessor, but from the whole scene of his action, being generated by that attribute of local events which renders them interpretable by witnesses. A correctly staged and performed scene leads the audience to impute a self to a performed character, but this imputation—this self—is a product of a scene that comes off, and is not a cause of it. (1959, 252)

The Supreme Court's assertion that this particular case be tried as the "regulation of conduct," rather than a case directly aimed at the "suppression of expression," is thus much too readily dismissive of the freedom of speech protection normally afforded entertainment. If, as Strossen notes, "the Supreme Court long held that the First Amendment extends to all forms of art and entertainment" (1995, 50), the Erie, PA v Kandyland Club case appears to constitute a refusal on the part of the Court to recognize exotic dancing as performance. "Censorship," states Judith Butler, "is not merely restrictive and privative, that is, active in depriving subjects of the freedom to express themselves in certain ways, but also formative of subjects and the legitimate boundaries of speech" (1997, 132). In denying the dancers their rights as performers, the Supreme Court sought to ratify society's stigmatic assessment of exotic dancers as deviants rather than professional entertainers. By identifying them as engaged in conduct, the Court created a legislatively permissible category of exclusion for nude dancers, within which they may be viewed as exhibitionists who display themselves for the sake of display, rather than as performers who convey meaning through a constructed event. As David Scott notes, "By linking antisocial behavior with path-ology it makes a subtle contribution to the maintenance of conformity" (1996, 32).

Perhaps one of the Supreme Court's greatest misconceptions of the profession of exotic dancing was its insistence that the imposition of pasties and G-strings would only slightly impinge on the "erotic message" being conveyed. This judgment at once revealed the Court's implicit recognition of the dancing's performative expressiveness and its misunderstanding of the form in dramatic terms. The de minimus argument ignored well-established conventions of a dancer's performance as a constructed event, one that proceeds along a narrative line to a recognizable climax. Conceptual structures of exotic dancing postulate a series of events that intentionally draws the spectator into the performance of intimacy, into what exotic dancer (and college professor), Susan Scotto, characterizes as a "contract" between dancer and "the guy who puts up the dollar" (personal interview 2000, November). Under its terms, the dancer performs an illusion of the uncloaking of the self, playing on what Suzanne Yang (in a different context) has described as "societal conventions and categorizations [that] lead us to expect that appearances are tied to a stable truth beyond the surface" (1998, 142). That truth is revealed in a series of gestural patterns, a kind of ritual unveiling equivalent to Goffman's "infinite cycle of concealment, discovery, false revelation, and rediscovery" (1959, 8). Multiple meanings emerge as each layer of clothing is removed, drawing the spectator into the illusion of an understanding of the intimate, sexual self of the performer. In that way, the physical act of stripping is not unlike what might seem to be its inversion, masquerade. Both forms operate by "masking the absence of the very identity [they] appear to mask" (Wigley 1992, 386). There is no "truthful self" being revealed in the dancer's performance, but the appearance of disclosure is the climax of the act. Since to restrict such a performance's final moment of revelation is tantamount to destroying the entire structure of the event, no conceivable analysis that sanctioned such restriction could be considered de minimus. Justice O'Connor's sarcastic and ignorant dismissal of the import of the revelation, and therefore of the performance's larger significance, was evident in the language she used to suggest that even if the nudity ban "has some minimal effect on the erotic message by muting that portion of expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings" (PAP's A.M., 5, author's emphasis). Justice Scalia disclosed an equally misinformed condescension in his question addressing the possibility that Erie had intended to suppress the content of the dancing, demanding to know "what (if anything) nude dancing communicates" (17).

Erotic dancers do not practice a uniform method of conceiving performances, and not all performances are constructed linearly, or in terms of recognizable narrative. Nonetheless, communication through gestural patterns (notwithstanding Scalia's skepticism) is an essential attribute of the event. Random, unchoreographed physicalization is the exception in exotic dancing, not the rule. Implicit in the judgment of the Court, however, with its insistence on references to the erotic content of the Kandyland dancers' performances, was the assumption that exotic dancers are performatively indistinguishable from one another, merely repeating a message of universalized, monochromatic eroticism in their individual routines. Rhetorically, such an assumption de-individualized the dancers, establishing their assignment to a classification or grouping more easily subject to codification and subsequent regulation. The Kandyland dancers were thus perceived as belonging to a category that Fredric Jameson refers to as "minor," a "fringe group separated from the 'dominant' by its participation in sexual practices that, to the extent that they are recognized as belonging to a 'type' . . . are deemed pathological" (qtd. in Krips 1999, 180). The reductionism that defined nude dancing in terms favorable to its moral antagonists—as a single-message signifier—rather than in more objective terms—as an expressive conduit for multiple meanings—was additionally notable as an effective attempt to ignore the cultural (and in this case judicial) contradictions attendant on public displays of the female body. These contradictions asserted themselves nonetheless, for what the female bodies on stage at the Kandyland Club may have been articulating was precisely what compelled the city of Erie to pursue its program to render those bodies silent, an objective the city eventually achieved by proving, to the Supreme Court's satisfaction, that the dancers' performances did not constitute speech, but conduct. Metaphorically, the court-ordered pasties became in effect a gag rule, an attempt to consign particular bodies to a state of muteness.

The regulation that states what it does not want stated thwarts its own desires, conducting a performance contradiction that throws into question that regulation's capacity to mean and do what it says, that is, its sovereign pretension. (Butler 1997, 130, author's emphasis)

The Supreme Court's ruling in favor of Erie, PA, in spite of its apparent impartiality, succeeded in exposing the Court as a judicial body rife with contradictions, assumptions, and prejudices, ultimately committed to the imposition of a particularly moralistic agenda. By agreeing to consider the case under the O'Brien framework of content neutrality, while simultaneously declaring "nude public dancing itself is immoral" (Justice Scalia), the Court, to borrow from Judith Butler, "stated what it did not want stated" (1997, 130), namely, its own cultural bias. In so doing, the justices symbolically sanctioned the exclusionary behavior of Cal State Fullerton's track coach, and others, while ratifying the primacy of societal mores that proclaim overt displays of sexuality disruptive, regardless of their arguably protected legal standing. Thus, the Court approved the Erie community's attempt to maintain a position of hierarchical cultural stability through enforced behavior.

Community standards are the measure by which laws are introduced and upheld, yet the Supreme Court, in its zeal to supply judicial legitimacy to what was essentially a moral crusade, clearly accepted an obsolete definition of address as its foundation in Erie, PA v PAP's, A.M. to wit: "to prepare or make ready with the proper attire; to accouter, array, apparel, or attire" (OED). Thus, pasties and a G-string are the "proper attire," the means by which the erotic dancer's body may be branded as both contained and silenced by the United States judicial system. In her discussion of Patricia Williams's work, Barbara Johnson declared that the "intersubjectivity of legal constructions" is based not on a model of transitive communication, but "on a dialogue of profound discontinuity" (1998, 177). By ruling in favor of Erie, PA, a majority of the Supreme Court's justices resoundingly demonstrated the truth of Johnson's observation, refusing to even consider an objective view of the entertainment form known as exotic dancing, and choosing instead to honor a presumptive code of cultural moralism at the expense of the constitutional protections they are sworn to defend.2

Brenda Foley received an MFA from California Institute of the Arts in 1984 and an MA in Theatre Studies from Brown University in 2000. She is a veteran professional actress with numerous credits at such theaters as The Roundabout in NYC, The La Jolla Playhouse, The Vienna English Theatre in Austria, and The Alabama Shakespeare Festival. Currently a doctoral candidate in interdisciplinary Performance Studies at Brown, her publications include "Image as Identity: Parallels in Beauty Contests and Exotic Dancing" ( Theatre InSight 1999) and "Concentric Paradoxes: Misogyny and Dependence in Strindberg's To Damascus Part I (Nordic Theatre Studies, forthcoming 2002). Send correspondence to Brown University, Dept. of Theatre, Speech, and Dance, Box 1897, Providence, RI 02912; Brenda_Foley@Brown.edu.

Notes

1. Justice O'Connor announced the judgment of the Court and delivered the opinion with respect to Parts I and II, in which Rehnquist, C. J., and Kennedy, Souter, and Breyer, J. J., joined, and an opinion with respect to Parts III and IV, in which Rehnquist, C. J., Kennedy, and Breyer, J. J., joined. Scalia, J., filed an opinion concurring in the judgment, in which Thomas, J., joined. Souter, J., filed an opinion concurring in part and dissenting in part. Stevens, J., filed a dissenting opinion, in which Ginsburg, J., joined. All citations in this article are excerpted from these case opinions, unless otherwise noted.

2. I would like to gratefully acknowledge the generous assistance of Ellen Roo-ney, Christopher Foley, and Kevin Gardner.

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