Nude dancing in Indiana - 28 June 1991

Well school is out, which means school both public and private and most universities and college and the Supreme Court of the United States, which ended its 1991 term and headed for its summer recess offering us a three-month holiday from the daily recognition of how large a part the court plays in the everyday life of Americans. It's something that begins to strike visitors only if they've lived here through a winter and a spring and become constantly surprised to discover that the men who wrote the Constitution 200 years ago, are consulted by the nine justices unceasingly to decide whether an insurance company can own stock in an undertakers, whether doctors can advertise, whether a nightclub stripper must or need not wear a G-string to protect her free speech rights under the Constitution.

Well we'll come to the fascinating variety of the judgements handed down in the week before the court closed up shop, but for the moment I must say that surely the most disheartening news of the week was that Saddam Hussein had managed to hide from the United Nations inspectors at least 10 places, sites where nuclear research is underway. And, according to American intelligence, some of these undiscovered sites are devoted to isolating or as they say separating out uranium fit for making weapons. It's especially disheartening because, way back there last summer, many people especially in the United States and Britain felt that all other considerations aside, Saddam had to be stopped by somebody as we all became shockingly aware that he could have, experts divided on saying in two years, in one year, in six months, could have a nuclear weapon.

All right now, the curious impressive always visible American phenomenon of the Supreme Court. From now, I'll just say the Supreme Court instead of the United States Supreme Court. Every state has in its judicial system, a supreme court, which is usually the last stop before a final appeal to the United States Supreme Court when people, plaintiffs, people with a grievance feel that some single right of there's under the Constitution has not been respected, first by a trial court, then by the succeeding courts of appeal in their own state then they can go on to the United States Supreme Court. And remember, it is not a trial court, it doesn't convict or free anybody, it can only say that in convicting somebody of something, the other courts did or did not violate the rights of an individual as they are spelled out in the Constitution.

Just to stress how odd the Supreme Court's function is to many parliamentary countries, for instance, and to explain in a minute why Americans seem to go on and on about this right and that right, let me read a letter to an American magazine I read this week from an Englishman, perhaps not, but anyway living in my native city of Manchester. He wrote in response to an article in which an English political commentator had said that life in the United Kingdom was fairer before Mrs Thatcher came to power and that if in the next election, Labour came back, there would be, quote, "a rebirth of social democracy".

Now the Manchester man was not defending either the Conservatives or the Labourites, he was pointing out certain deficiencies in social legislation, which he wrote were constant and he suggested unlikely to change whoever occupies 10 Downing Street. Anyway, his points are not I believe constantly debated in the House of Commons.

This is what he wrote. "Under either party then as now, there were no basic rights to protect freedom of speech and expression, protection against self-incrimination as in the American Fifth Amendment is not a citizen's right, there's nothing to protect the individual from discrimination on the basis of age or sexual orientation and only puny legislation on sex discrimination, indeed nothing to protect even an individual's citizenship. Consumer and environmental protection legislation in England then as now resembles that of the United States in the late 1950s for instance, there are today no British emission standards for cars most of which use leaded petrol and pharmaceutical products do not list ingredients or warnings."

I guess after all that this man must be an American because what he regards as gross deficiencies in the citizens rights simply don't occur to people in most countries, but they are the whole business of the Supreme Court. Let's just look at one or two of the opinions the court handed down in the last week of its session. In all the court ruled during this past term on 125 appeals and if you were to flip through them, you'd be staggered and often amused at the enormous variety of the subject matter and wonder unless you've been watching the court for a very long time, how all these dull or weird and wonderful and sombre and trivial cases can all be fitted into usually one phrase that was set down in a sentence 200 years ago.

Last week, the court finally settled a case, which has been being argued with much bad blood for seven years. It was about a a magazine article written by a woman who wrote a very unflattering piece a profile about a male psychoanalyst in which she was accused of having made up quotations from the man, which he maintained were damaging and which he never said. Well, the court accepted that the writer put between quotation marks, words and phrases that he didn't actually say, but which paraphrased what she thought he meant. His appeal was to the First Amendment's protection of freedom of speech, which has been extended in recent years to the freedom of expression by way of rock music – some pretty obscene lyrics were excused and burning the flag was forgiven as a right under the First Amendment on old Justice Holmes's principle that freedom of speech means freedom for the speech we loathe.

Well the Court decided by seven to two that even if you only approximately quote a person and what you quote is unflattering to him or her, it's not libellous unless you can be proved to have done it with actual malice, which is always fiendishly hard to prove. This majority decision was applauded by publishers and some writers I'd imagine by the types that do a lot of interviewing, other people like me who are subject to being interviewed will no doubt make a point of seeing that from now on, the interviewer carries a tape recorder.

Much of the most far-reaching serious ruling and about to be furiously debated first in Congress and then in every hospital clinic maybe every family household in the United States was the court's decision to forbid health clinics that receive federal funds to discuss abortion with patients coming in for advice. A formula was suggested that every employee of such clinics, simply say, "I'm sorry that is an option of family planning I'm not allowed to discuss".

The whole Pro Choice versus Right to Life debate, which has been raging here through two decades, goes back to the 14th Amendment's guarantee to any person of the equal protection of the laws, and the question is, when does the embryo turn into a person and, if you kill that person, are you not denying it equal protection? The Right to Life response is "once a woman becomes pregnant, the only advice a government supported clinic should give is how best to support that life not destroy it" and the Pro Choice response "Isn't it ironic that the court won't pay for clinics that counsel abortion, but will pay for babies born addicted, for increased welfare costs and, possibly, incarceration for unwanted children who grow up with antisocial attitudes".

I think perhaps the most historic decision of the past term centres on or should we say throws a spotlight on that nude dancer I talked about, at the Kitty Kat Lounge in South Bend, Indiana. She was charged way back in the early 1980s. Cases can take as long as Esther Summerson in Bleak House to come to the top. Well, Indiana had a law forbidden nude dancing in public bars. The owner of the now famous Kitty Kat Lounge protested that the law was unconstitutional because it gagged the good old First Amendment's protection of free speech. He lost in a district court, but last year a federal court of appeals voted to uphold him under the Constitution. The Indiana state prosecutor soldiered on to the US Supreme Court and the judgement was decided as so many these days are by one vote, five to four. The four dissenters said that nude dancing is an expressive activity entitled to the full First Amendment Protection, but the majority through the Chief Justice said "sure nude dancing is a form of expression and conveys erotic and sensual ideas" but what Indiana seeks to prevent is public nudity, which might generate social disorder in, they implied, those surroundings.

Consequently, the State of Indiana was not violating the First Amendment by requiring the nude dancers to wear, quote, "pasties and a G-string". Now, it's easy to find in a very knotty and fine-spun arguments and counter arguments of the justices calls for hilarity and mirth. Nevertheless, after at least two decades of ducking the social problem of obscenity, which all the Western courts have done, the United States Supreme Court has for the first time suggested that maybe in the public exhibition of male and female genitals there ought to be a limit imposed by the law. A very daring decision in this unbuttoned age.

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