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
Hennessey, C.J.
I dissent. If the ordinance at issue here applied to other than drinking establishments, it would clearly be unconstitutional on its face as an impermissible restriction on expression in the performing arts. However, *539 this ordinance applies only to places where alcoholic beverages are sold to be consumed on the premises. The Supreme Court of the United States has held that a State has the power to prohibit nude dancing as a part of its liquor license program. Doran v. Salem Inn, Inc., 422 U.S. 922, 932-933 (1975). After more than four decades of public regulation in this Commonwealth of the distribution of alcohol, I do not believe that we should apply the First Amendment more broadly in this narrow regulatory area than the Supreme Court chose to do; nor should we apply provisions of our State Constitution similarly to limit State control.
Drinking establishments, and the areas where they are permitted, may present special and serious problems to the community. Local and State regulation, provided it is not irrational or invidiously discriminatory, should be permitted to meet those special problems. The implications of the majority’s position in this case are disturbing. Dancing is presently prohibited altogether as a condition of licenses in some instances. Some licensed drinking establishments are now denied entertainment licenses. How does the reasoning of the majority opinion affect these local options? When we prohibit all entertainment, we are suppressing expression, including the spoken word. Clearly, the community can deny or limit entertainment privileges on reasons based on consideration of time, place, and circumstances. However, the licensed drinking establishment which demands entertainment privileges may well have met all reasonable conditions as to safety, health, traffic, and the like.
The point is that, by the majority holding here, we are limiting the options for reasonable regulation. The community may rationally conclude that nude dancing in drinking places encourages other conduct of a criminal nature. The records in recent appealed cases can be said to lend support to that reasoning. Yet I think the logic of the majority position here leads to the contention that regulation must be limited to a denial of all entertainment privileges, or even leads to the proposition I have suggested above, that regula *540 tion may be achieved only by the prohibition of drinking licenses.
I have stated in the past that it is constitutionally required that the State must tolerate even “[v]ulgar, profane, offensive” speech. Commonwealth v. A Juvenile, 368 Mass. 580, 589-590 (1975). This tolerance requires protection against the barest possibilities of suppression arising from vagueness or overbreadth in regulations. But since the ordinance at issue here applies only to nude dancing and only in drinking establishments, I see in it no threat to freedom of expression. Neither the “Ballet Africains” nor presentations of lesser artistic distinction are truly threatened. The majority opinion strikes down a reasonable regulation of drinking establishments because of a threat to free expression which is theoretical rather than actual. Since the threat to free expression is nonexistent, there is a touch of intellectual masochism in denying to the community this moderate exercise of its judgment in the control of its “adult entertainment” areas.