holding that Article 16 “draws no distinction between free speech in a bar and free speech on a stage” or between a dancer who is nude while "rendering a selection from the 'Ballet Africains’ ” and one who is "engaged in the customary 'barroom' type of nude dancing”
How later courts described this case
- holding that Article 16 “draws no distinction between free speech in a bar and free speech on a stage” or between a dancer who is nude while "rendering a selection from the 'Ballet Africains’ ” and one who is "engaged in the customary 'barroom' type of nude dancing”
- finding protection under article 16 for semi-nude dancing *911 that is not protected by the First Amendment-compare Doran v. Salem Inn, Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, 45 L.Ed.2d 648 (1975)
- concluding that a restriction on nude dancing in bars was unconstitutional where the dancer “did not mingle with other employees or with patrons, and there is no contention that the performance was obscene”
- stating that in the absence of a provision giving a preferred position to regülation of alcohol, the free speech provision of Massachusetts Constitution 11 protects nudity in places licensed to sell alcohol
Written by the judges who cited it.
The opinion
Kaplan and Liacos, JJ.,
adhere to the views previously expressed in the dissent of Kaplan, J. (with Chief Justice Tauro agreeing), in Revere v. Aucella, 369 Mass. 138, 148 (1975), appeal dismissed sub nom. Charger Invs., Inc. v. Corbett, 429 U.S. 877 (1976): (1) the ordinance is beyond the authority of the city council because it intrudes on the jurisdiction vested by the Legislature in the administrators of the alcoholic beverages control law (G. L. c. 138); (2) the ordinance is unconstitutional on its face as offensive to our Declaration of Rights. Being unable to persuade a majority of the court of either proposition, they concur in the present judgment on the narrow ground that the ordinance is unconstitutional in its application.
Abrams, J.,
agrees with the first basis of the Aucella dissent, reserves opinion on the second, and concurs in the judgment on the ground that the ordinance is unconstitutional in its application.