Amicus Curiae Brief — Erie v. Pap's AM

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MOTION FILED

sep 3.0 1997

No. 98-1161

In The

Supreme Court of the United States

= >

CITY OF ERIE,

Petitioner,

Vv.

PAP’S A.M.,

Respondent.

On Writ Of Certiorari

To The Supreme Court Of Pennsylvania

MOTION FOR LEAVE TO FILE

AMICI CURIAE BRIEF

AND

BRIEF OF AMICI CURIAE BILL CONTE,

ON BEHALF OF THE DANTE PROJECT: INFERNO

AND THE NATIONAL CAMPAIGN FOR FREEDOM

OF EXPRESSION, IN SUPPORT OF PAP’S A.M.

Jack R. Burns

Counsel Of Record

Jack R. Burns, P.S.

400-108th Ave. N.E., Suite 420

Bellevue, WA 98004

(425) 646-6344

———- ---—— - —

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

MOTION FOR LEAVE TO FILE AMICI BRIEF

Bill Conte, on behalf of The Dante Project: Inferno, and

The National Campaign for Freedom of Expression seek

leave of this Honorable Court to file an amicus curiae brief

in support of Pap’s A.M. The Amici brief in support of

PAP’S A.M. is filed with permission of the Respondent.

The Petitioner has not consented to the filing of the brief.

INTEREST OF AMICI CURIAE

Bill Conte is the Translator/Director of a theatrical

production entitled The Dante Project: Inferno, which is

based on the Inferno of 14th-century poet, Dante

Alighieri.

Universally regarded as one of the greatest artistic

achievements of the millennium, Dante’s Inferno has been

an inexhaustible source of inspiration for artists working

in every field, especially in sculpture and painting. In

translating the work faithfully from its original poetic

source to these other media, painters and sculptors tradi-

tionally and invariably depict the damned as being

naked. This is based on the graphic descriptions in the

poem. To emphasize the brutishness, vulnerability, and

humiliation of the damned souls in hell, Dante pointedly

refers to their being completely exposed to the elements,

the torment of demons, and the scrutiny of himself and

Virgil, his guide.

The Dante Project: Inferno plans to open off-Broadway

in New York City in the fall of 2000. There will be eight

performances per week, with matinees on Wednesdays

and Sundays and, with the success of the production,

tours nationally and internationally. Amicus Conte

intends to present The Dante Project: Inferno, to the widest

possible audience in a manner that makes Dante’s words

spring to life. The outcome of this case will have an

impact on the production.

As with every other image and theatrical effect in the

production, the source is Dante himself. As described in

the poem, the damned souls are in constant motion. This

movement must be choreographed in accordance with the

poetic descriptions of Dante. Under any construction, the

actors will be “[appearing] in a state of nudity,” as pro-

scribed by Erie Ordinance No. 75-1994.

If the “damned” are not allowed to appear “naked,”

the audience will be deprived of an integral component

of Dante’s vision. Bereft of this expressive element, shorn

of any hint of eroticism, the production will fail to cap-

ture the depth and complexity of Dante’s thoughts,

thereby doing disservice both to the Poet, as well as the

theater-going public, which expect no less than thought-

for-thought fidelity in any work of art purporting to be a

legitimate theatrical translation of Dante’s Inferno.

The National Campaign for Freedom of Expression is

an educational and advocacy network of artists, arts

organizations, audience members and concerned citizens

formed to protect and extend freedom of artistic expres-

sion and fight censorship throughout the United States.

The Campaign’s work reflects the understanding that

true democracy is dependent on the right to free expres-

sion for all. The National Campaign for Freedom of

Expression is the only nationwide organization exclu-

sively dedicated to challenging the erosion of First

Amendment rights as applied to the support, presenta-

tion and creation of the arts in our culture today.

Nudity has been an appreciated and legitimized sub-

ject of artistic expression for thousands of years. All of

the classical civilizations represented naked male and

female bodies in their art works. From the great ancient

art of Asia, Africa and South America through the classi-

cal works of the European masters to contemporary

North American and other global artists, nudity has been

a constant. The law governing artistic expression

acknowledges the important and historical role of nudity.

If the Erie Ordinance is upheld, it will create prece-

dent for similar legislation throughout the country that

will result in the censorship of serious artistic theatrical

productions.

CONCLUSION

Amici respectfully request this Honorable Court to

grant them leave to file this amicus curiae brief in support

of Pap’s A.M.

Respectfully submitted,

Jack R. Burns, WSBA #01590

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE.............0.050455 1

SUMMARY OF ARGUMENT.................20005: 3

FEES Sscesccadccduvetectadssecccdsactossess 6

1. Nudity, A Medium For Communicating Various

Messages, Has A Long History In The Performing

Bn ccccatosdrecbotetesact rus cieticdsavigcsset 6

Bo, Fe ee CN o Sudiccdosdsnes sesiccvign 10

3. Without Nudity, The Intended Messages Of

Exotic Dance Are Substantially Changed ....... 12

4. Because The City of Erie Ordinance Bans All

Expressive Nudity, It Is Unconstitutionally Over-

RR ES OE Ee ee AP Se BE ee SL. Sp 15

te A I i Ee 15

B. The Overbreadth Doctrine.................. 17

C. Application Of The Overbreadth Doctrine .... 19

SED wancdcccivesincnvacsadesesdavécncent 25

TABLE OF AUTHORITIES

Page

Cases

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)

scccececesecosss ciuatnnséseatedtaana 14, 20, 21, 22, 23

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482

A BED SIN... < cucnensapadedennssesceseioe: 18

Boos v. Berry, 485 U.S. 312 (1988)...........-....000. 20

Broadrick v. Oklahoma, 413 U.S. 601 (1963) ........ 17, 18

Brockett v. Spokane Arcades, Inc., 472 U.S. 491 (1985) .... 18

City Council of Los Angeles v. Taxpayers for Vincent,

GO6 UD. FED GRIDS . . cccvccecscvccesscsescsscvesss 18

City of Lakewor Plain Dealer Publishing Co., 486

CE. FED GR wc ceccweccuncdsccccdcccnssstveseccs 24

Coates v. City of Cincinnati, 402 U.S. 611 (1971)...... 17

Dombrowski v. Pfister, 380 U.S. 479 (1965)............ 18

Forsyth County, GA v. Nationalist Movement, 505

TED. BED CIGD ccc cccccsccccscssvenscsceesivecs 24, 25

Houston v. Hill, 482 U.S. 451 (1987) ................. 18

NAACP v. Button, 371 U.S. 415 (1963)............... 18

New York v. Ferber, 458 U.S. 747 (1982) .............. 23

Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) .... 22

U.S. v. O’Brien, 391 U.S. 367 (1968) .............444. 24

TABLE OF AUTHORITIES - Continued

OrHER AUTHORITIES

Robert Clyde Allen, Horrible Prettiness: Burlesque

and American Culture, Chapel Hill: University of

PRD GI UOOE wbbs ccvenduséboesessccens

Jack Anderson, “Reverently Naked for Rites in

Church,” New York Times, October 7, 1997.....

Mary Ellen Roach and Joanne Bubloz, eds. Dress,

Adornment, and the Social Order. New York:

Sy PU vnchatches $< cas déuiuwetiesetekunve

Meiling Chen, “Les Demoiselles d/L.A.: Sacred

Naked Nature Girls’ Untitled Flesh,” The Drama

FL RS ee

TD GE cnc canesninceccccccvessessecs

Timothy Gilfoyle, City of Eros: New York City, Pros-

titution, and the Commercialization of Sex,

1790-1920, New York: W.W. Norton & Co., 1992

Judith Lynne Hanna, Dance, Sex and Gender: Signs

of Identity, Dominance, Defiance, and Desire. Chi-

cago: University of Chicago Press, 1988.......

Judith Lynne Hanna, To Dance Is Human: A Theory

of Nonverbal Communication. Chicago: University

Oy Se PON BO e sc cnsbcccecsceveccteses

Judith Lynne Hanna, “Toying with the Striptease

Dancer and the First Amendment,” Stuart

Reifel, ed. Play & Culture Studies, Vol. 2: Play

Contexts Revisited. Stamford, Ct: Ablex Publish-

Me COMPSSREER, BETO 2c ccccccccccccccccecess

Page

TABLE OF AUTHORITIES -- Continued

Judith Lynne Hanna, “Undressing the First

Amendment and Corsetting the Striptease

Dancer,” The Drama Review 42 Summer

BOSD voncesacesvaveuseessdidvuptdbepest ees 11,

Lucinda Jarrett, Stripping in Time: A History of

Erotic Dancing. London: Pandora, 1997.........

Richard A. Posner, Sex and Reason, (Harvard Uni-

VON FURR, TOU so sccecccnsvccccceesuscevess

Richard Schechner, Environmental Theater. ‘New

York: Applause, 1994.......... poeedeersseveees

Rebecca Schneider, The Explicit Body in Perfor-

mance. New York: Routledge, 1997.............

Francis Sparshott, A Measured Pace: Toward a Philo-

sophical Understanding of the Arts of Dance.

Toronto: University of Toronto Press, 1995 .....

Francis Sparshott, “Some Aspects of Nudity in Thea-

ter Dance.” Dance Chronicle 18(2)..............

Karl Toepfer, “Nudity and textuality in Post-

modern Performance.” Performing Arts Journal.

No. 54:76-91, September 1, 1996 ...............

Webster's Ninth New Collegiate Dictionary, Spring-

field, MA: Merriam-Webster Inc., 1987 .........

Page

INTEREST OF AMICI CURIAE!

Bill Conte is the Translator/Director of a theatrical

production entitled The Dante Project: Inferno, which is

based on the Inferno of 14th-century poet, Dante

Alighieri.?

Universally regarded as one of the greatest artistic

achievements of the millennium, Dante’s Inferno has been

an inexhaustible source of inspiration for artists working

in every field, especially in sculpture and painting. In

translating the work faithfully from its original poetic

source to these other media, painters and sculptors tradi-

tionally and invariably depict the damned as being

naked. This is based on the graphic descriptions in the

poem. To emphasize the brutishness, vulnerability, and

humiliation of the damned souls in hell, Dante pointedly

refers to their being completely exposed to the elements,

the torment of demons, and the scrutiny of himself and

Virgil, his guide.

1 Pursuant to Sup. Ct. Rule 37.6, counsel for Amici discloses

that he authored this brief with the assistance of Judith Lynne

Hanna, Ph.D. Dr. Hanna is a cultural anthropologist; Senior

Research Scholar, Department of Dance, University of

Maryland; and educator. She has authored five substantial

books on dance and over eighty-seven (87) articles on dance in

peer reviewed scholarly journals. Funding for the preparation

and submission of this brief was provided by Consolidated

Bookkeeping & Management Services, Inc., Seattle, Washington.

2 Amicus Conte is a freelance actor, director, playwright

and lecturer in the Department of English, Speech and World

Literature at the College of Staten Island (CUNY) and in the

Department of Humanities at St. John’s University.

The Dante Project: Inferno plans to open off-Broadway

in New York City in the fall of 2000. There will be eight

performances per week, with matinees on Wednesdays

and Sundays and, with the success of the production,

tours nationally and internationally. Amicus Conte

intends to present The Dante Project: Inferno, to the widest

possible audience in a manner that makes Dante’s words

spring to life. The outcome of this case will have an

impact on the production.

As with every other image and theatrical effect in the

production, the source is Dante himself. As described in

the poem, the damned souls are in constant motion. This

movement must be choreographed in accordance with the

poetic descriptions of Dante. Under any construction, the

actors will be “[appearing] in a state of nudity,” as pro-

scribed by Erie Ordinance No. 75-1994. If the “damned”

are not allowed to appear “naked,” the audience will be

deprived of an integral component of Dante’s vision.

Bereft of this expressive element, shorn of any hint of

eroticism, the production will fail to capture the depth

and complexity of Dante’s thoughts, thereby doing dis-

service both to the Poet, as well as the theater-going

public in New York, which expect no less than thought-

for-thought fidelity in any work of art purporting to be a

legitimate theatrical translation of Dante’s Inferno.

The National Campaign for Freedom of Expression is

an educational and advocacy network of artists, arts

organizations, audience members and concerned citizens

formed to protect and extend freedom of artistic expres-

sion and fight censorship throughout the United States.

The Campaign’s work reflects the understanding that

true democracy is dependent on the right to free expres-

sion for all. The National Campaign for Freedom of

Expression is the only nationwide organization exclu-

sively dedicated to challenging the erosion of First

Amendment rights as applied to the support, presenta-

tion and creation of the arts in our culture today.

Nudity has been an appreciated and legitimized sub-

ject of artistic expression for thousands of years. All of

the classical civilizations represented naked male and

female bodies in their art works. From the great ancient

art of Asia, Africa and South America through the classi-

cal works of the European masters to contemporary

North American and other global artists, nudity has been

a constant. The law governing artistic expression

acknowledges the important and historical role of nudity.

If the Erie Ordinance is upheld, it will create prece-

dent for similar legislation throughout the country that

will result in the censorship of serious artistic theatrical

productions. Amici urge this Court to affirm the decision

of the Pennsylvania Supreme Court. Any other decision

will vest government officials with the unfettered power

to censor non-obscene productions containing nudity, no

matter how important that nudity is to the messages of

the production.

SUMMARY OF ARGUMENT

Nudity has a long history in the performing arts in

this country. Early concerns focused on exposure of the

ankle, loose fitting clothing, the length of skirts and expo-

sure of the female leg. With the coming of the 20th

century, full nudity began to be used in mainstream thea-

ter dance. In the first three decades of the 20th century,

the famous American modern dancer Isadora Duncan

established nudity, or near-nudity, as important to her

art. In addition, moving nude dancers appeared in Flo-

renz Ziegfeld’s popular revues in New York City. Topless

dancers were on the scene by 1945.

Contemporary exotic dance is an outgrowth of these

important 20th century developments in theater.

Dance is purposeful, rhythmical and culturally influ-

enced sequences of nonverbal body movements. As an art

form, dance requires learned skill, imagination, and com-

munication. “Exotic dance,” the expressive conduct tar-

geted by Ordinance No. 75-1994, is a form of dance and a

form of art with its own style and aesthetic.

An exotic dancer attempts to communicate to patrons

through the senses of body movement, proximity and

verbalization, an illusion of intimacy, spontaneity and

emotion. By creating an illusion of concern and availabil-

ity for a patren, the exotic dancer seeks, theatrically, to

effect a transformation in the patron’s feelings. The pre-

dominant characteristic distinguishing exotic dance from

other forms of dance is the use of nudity to deliver the

messages of the dance.

Recent research demonstrates that nudity signifi-

cantly enhances the intended messages of exotic dance.

Without nudity, the messages of the dance are substan-

tially changed. The research reveals that men judge a

nude dancer to be communicating a different message

than a clothed dancer.

The “overbreadth doctrine” prohibits a statute from

making innocent or constitutionally protected conduct

criminal. The harm from an overbroad statute is its chill-

ing effect on constitutionally protected or otherwise law-

ful conduct.

Section 1(c) of Ordinance No. 75-1994 prohibits any

nudity in the performing arts, including exotic dance. In

addition, it prohibits certain costumes intended to convey

representational messages. Because the Erie ordinance

prohibits nudity, and the representation of nudity, in all

live performances, including those with serious literary,

artistic, or political value, it is unconstitutionally over-

broad.

The overbreadth of the regulation here is both real

and substantial. Erie’s ban on nudity sweeps within its

ambit expressive conduct not generally associated with

prostitution, sexual assault, or other crimes; i.e., nudity

used as a communicative medium in operas, ballet, plays,

musicals and other serious artistic performances. The

potential impermissible applications of Section 1(c) dwarf

whatever the legitimate reach of the regulation may be.

Because the State courts have refused to render a

narrowing construction, and it is not within the power of

this Court to do so, the decision of the Pennsylvania

Supreme Court should be AFFIRMED.

ARGUMENT

1. Nudity, A Medium For Communicating Various

Messages, Has A Long History In The Performing

Arts.

“Nudity” has a long history in the performing arts in

this country, both as to its use and its meaning.

In the 1820’s, public debates over nudity focused on

the length of ballet dancers’ costumes. At that time, a leg

was called a limb, and it was covered, even for sun-

bathing and swimming.

In 1827 citizens railed against the French ballet

dancer, Madame Francisque Hutin, for the “public expo-

sure of a naked female.”? She wore a long silk skirt

covering loose trousers fastened at the ankle. A glimpse

of a loose trouser-clad thigh when the dancer pirouetted

and her skirt flew up was equated with total nudity — yet

not an inch of skin beneath the waist showed.

It was not until the 1840’s that the social status of

ballet darcers was elevated. Ballet dancers’ skirt lengths

had been shortening, but coming from France, dancer

Fanny Elssler anticipated American conservatism and

lengthened her costume by a full foot. Her successful

debut in the U.S. marked the acceptance by upper-class

audiences of ballet as “art.”5 This helped expand the

boundaries for the use of the partially-revealed female

% Robert Clyde Allen, Horrible Prettiness: Burlesque and

American Culture. Chapel Hill: University of North Carolina,

1991, pp. 88-89.

4 Id.

> Id., 90-91.

form in the performing arts and provided a rationaliza-

tion for pleasure in viewing ballet.

The 1865 stage spectacle, “The Black Crook,” popu-

larized ballet. It had a large number of female legs, that

is, “undressed” dancers with close-fitting pantaloons

stopping at mid thigh, sleeveless bodices and short skirts,

all considered “nudities.”®

The 1893 Chicago World’s Columbian Exposition

revealed even more female anatomy. “Streets of Cairo”

and Algerian and Persian village exhibits featured, for

the first time in public, the dance called danse du ventre,

cootch, hootchy-kootchy, and “belly dance” — a forerun-

ner of contemporary exotic dance. While American

women wore corsets under long dresses, the performers

wore baggy trousers and midriff-length tops over an

uncorsetted body.”

Full nudity first appeared in the 1840’s theatrical

tableaux vivants. Performers posed as “classical nudes” on

revolving turntable stages that allowed “more revealing”

views.® The “living statues” slightly changed positions.

Moving nude dancers in popular art appeared from

1912-1929 in Florenz Ziegfeld’s revues in New York City.

6 Id., 108-111.

7 Id., 225-226.

8 Timothy Gilfoyle, City of Eros: New York City, Prostitution,

and the Commercialization of Sex, 1790-1920. New York: W.W.

Norton & Co., 1992, p. 127.

Flirting with naughtiness, many of the revues presented

feminine nudity veiled.’

While unembellished nudity was still taboo during

the early part of this century, dancers used gimmicks to

give the illusion of nudity, such as a g-string with glued

pubic hair, or they delivered quick intimate glimpses of

body parts in flashes. For example, in the 1930s, Sally

Rand covered and fleetingly exposed her nudity with two

huge ostrich fans.!°

Topless dancers were on the scene by 1945. Famous

strippers included Lili St. Cry, Blaze Starr, Tempest

Storm, and Gypsy Rose Lee."!

The 20th century saw the fully nude body used in

mainstream theatrical dance.!? In the first three decades

of the 20th century, the famous American modern dancer

Isadora Duncan established nudity, or near-nudity, as

important to her art. “Modern dance” rebelled against the

unnaturalness of ballet with its specific codified posi-

tions, movements and fitted costumes. Compressing

internal organs, women’s tightly corseted bodies of the

% Allen, supra, 246; see also, Lucinda Jarrett, Stripping in

Time: A History of Erotic Dancing. London: Pandora, 1997, pp.

108-110.

10 Ann Corio, This was Burlesque. New York: Grossett &

Dunlap, 1968, p. 98; Jarrett, supra, p. 150.

1! Allen, supra; Jarrett, supra.

12 Judith Lynne Hanna, Dance, Sex and Gender: Signs of

Identity, Dominance, Defiance, and Desire. Chicago: University of

Chicago Press, 1988.

19th century were seen as chastisement, pain, and sym-

bolic of oppression.'?

More recent landmarks in mainstream theater pro-

vide a context for nudity in dance today. Yvonne Rainer’s

“Trio A,” performed in 1966 in New York City, showed

nude dancers with American flags hanging from their

necks in protest against repression and censorship. In

Anna Halprin’s New York City debut of “Parades and

Changes,” in April, 1967, modern dancers disrobed.

“Hair,” a rock musical that opened October 29, 1967,

brought nudity, including a glance at pubic hair, to a New

York City Broadway theater. The 1969 musical “Oh! Cal-

cutta!” showed female and male frontal nudity and group

body contact. The 1970 classical ballet “Mutations,” by

Glen Tetley and Hans van Manen, showed a nude man

dance a slow celebratory solo and a nude couple perform

an entwining duet while three nude henchmen moved

about. American choreographer Mark Morris presented

“Striptease,” with its “down to the buff” commentary on

hypocrisy in society. Bill T. Jones's modern dance “Last

Supper at Uncle Tom’s Cabin/The Promised Land,” first

performed in 1990, featured nudity among an assemblage

of up to 50 company and community members - tall and

short, fat and thin, black and white, old and young - all

devoid of disguise, vulnerable, and unashamed, pulling

together against the disparate strains of conflict over

race, sexual orientation, gender, poverty and age. The

nudity of the all-male modern Creach/Koester Dance

Company in its 1998 “Study for a Resurrection,” in St.

Mark’s Church, in New York City, “affirmed the body’s

3 Id.

beauty and vulnerability.”"* “Naked Boys Singing,” a

1999 musical review presented at the Actor’s Playhouse

in Greenwich Village, New York City, poked fun at social

behavior.

Contemporary exotic dance is an outgrowth of these

important 20th century developments in theater.

2. What Is Exotic Dance?

Dance is purposeful, rhythmical and culturally influ-

enced sequences of nonverbal body movements.'° As an

art form, dance requires learned skill, imagination and

communication.’ “Exotic dance,” also called nude, semi-

nude, erotic, striptease or barroom dance, is dance and a

performing art with its own style and aesthetic.'? The

roots of contemporary exotic dance are in traditions of

middle east dance and burlesque.

In contemporary exotic dance, a dancer initially

appears clothed, signifying the social norm. Transgress-

ing this norm, she commonly strips to nudity in the

course of her performance.

4 Jack Anderson, “Reverently Naked for Rites in Church,”

New York Times, October 7, 1997, p. B3.

1S Judith Lynne Hanna, To Dance Is Human: A Theory of

Nonverbal Communication. Chicago: University of Chicago Press,

1987.

16 Webster's Ninth New Collegiate Dictionary, Springfield,

MA: Merriam-Webster Inc., 1987, p. 105.

17 The term “exotic dance” comes from the 1893 Chicago

World’s Columbian Exposition which featured the “exotic,”

meaning “the unusual other.”

As an actor, an exotic dancer attempts to communi-

cate to patrons through the senses of body movement,

proximity and verbalization, an illusion of intimacy,

spontaneity and emotion. By creating an illusion of con-

cern and availability for a patron, the exotic dancer seeks,

theatrically, to effect a transformation in the patron’s

feelings. '8

Notions of artistic merit in exotic dance center on

theatricality; i.e., the performer’s sensuality, costume and

physical disclosure, beauty, personality, friendliness,

musicality, creativity, and variety and quality of move-

ment repertoire. Evaluation of a performance is also

based on how well it fulfills its communicative purpose.'9

Exotic dance is usually performed in cabarets gener-

ally referred to by municipalities as “adult cabarets.”

These cabarets have all the indicia of a dinner theater.

Similar to dinner theaters, “adult cabarets” have entrance

fees, a raised stage on which entertainers perform, table

seating surrounding the stage, special lighting and sound

18 Judith Lynne Hanna, “Undressing the First Amendment

and Corsetting the Striptease Dancer,” The Drama Review 42,

2(T158):38-69, Summer 1998; Judith Lynne Hanna, “Toying with

the Striptease Dancer and the First Amendment,” Stuart Reifel,

ed. Play & Culture Studies, Vol. 2: Play Contexts Revisited,

Stamford, CT: Ablex Publishing Corporation, 1999, pp. 37-56.

1% The claim that dance performed in exotic dance clubs is

not dance as perforined at mainstream theaters is a difference of

degree or quality, not a difference of kind. While today, ballet,

with its many years of demanding training, may be deemed

“high art” by mainstream dance critics, in the 19th century,

ballet was commonly considered a disreputable low art. Hanna,

“Undressing . . . ,” 1998, supra, pp. 48-50.

systems, a separate dressing area and “ushers” to seat the

members of the audience and maintain proper decorum.

Some “adult cabarets” serve food and drink and have

reserved seating areas for patrons paying a premium.

3. Without Nudity, The Intended Messages Of Exotic

Dance Are Substantially Changed.

Recognizing that nudity is a key component of exotic

dance, it is important to explore the value of nudity as

part of the communicative messages of the dance.

In the context of theatrical productions, ballet and

modern dance, nudity is used for many different expres-

sive purposes. While, “it is impossible to reduce to a

single organizing factor the multitude of associations the

naked human body stirs... ,” “nakedness is a time

honored way of showing the body’s grace and

beauty ... “70

Further, nudity, as an integral and expressive compo-

nent of dance, may incorporate some or all of the follow-

ing messages: - natural beauty, eroticism, sensuality,

sexuality, fantasy, pretense of sexual availability, emo-

tional and physical intimacy, unbounded and uncompli-

cated continuous desire, acceptance, tenderness, the jewel

of femininity or masculinity, longing, and harmony of sex

and gender.?!

20 Richard Schechner, Environmental Theater. New York:

Applause, 1994, pp. 89-90.

21 For example, see Rebecca Schneider, The Explicit Body in

Performance. New York: Routledge, 1997; Francis Sparshott, A

Measured Pace: Toward a Philosophical Understanding of the Arts of

Additionally, the nude body may be seen as a “porta-

ble art gallery constantly on display, subject not only

to .. . [one’s] own reactions but also to those of others.”?2

Nudity in theater can bear on the historical tension

between how the body was revealed in the past and how

it is revealed now or how it challenges the status quo.

Nudity may also serve as a vehicle to challenge and mock

some religious and moral tenets.

Nudity is often used to express something other than

eroticism. If the message intended to be conveyed by the

use of nudity is the naturalness or beauty of the naked

human form, such a message is defeated by covering the

body in such a way as to suggest that nudity is not

natural or beautiful. If the message signifies defenseless-

ness, vulnerability, or Eden-like innocence, “only com-

plete nudity could make the point; the retention of even a

loin cloth would not weaken the effect, but change it into

something quite different.”4

Nudity in exotic dance has a special meaning. Exotic

dance reflects the culture of its time and by definition

must be “naughty” and go beyond what is seen in public

Dance. Toronto: University of Toronto Press, 1995; Karl Toepfer,

“Nudity and Textuality in Postmodern Performance.”

Performing Arts Journal. No. 54:76-91, September 1, 1996.

22 Mary Ellen Roach and Joanne Bubloz, eds. Dress,

Adornment, and the Social Order. New York: Wiley, 1965. p. 13.

2 Hanna, “Undressing . . . ,” 1998, supra; Meiling Chen,

“Les Demoiselles d/L.A.: Sacred Naked Nature Girls’ Untitled

Flesh,” The Drama Review 42, 2(T158):70-97, Summer 1998.

24 Francis Sparshott, “Some Aspects of Nudity in Theater

Dance.” Dance Chronicle 18(2), p. 307.

places.2> The exotic dancer’s creation of erotic fantasy

through her moving body draws upon nudity as a natural

element of theatrical artistry. Nudity theatrically speaks,

like an emblem, uniform, or other symbol and emotion.

Given the fact that nudity is regularly used in the

performing arts to communicate a particular message, a

central question in the evaluation of any regulation ban-

ning performance nudity is whether the message con-

veyed by the nudity, i.e., the content of the performance,

is substantially altered. Put another way, does it makes a

difference to the patron in the sending and receiving of

erotic messages, for example, if a performer or exotic

dancer is clothed or nude? Recent research demonstrates

that nudity significantly enhances the intended messages

of exotic dance.

Psychologist Edward I. Donnerstein’s study of exotic

dance”® disproves the conclusion in Barnes v. Glen Theatre,

Inc. that “the requirement that the dancers don pasties

and a g-string does not deprive the dance of whatever

erotic message it conveys; it simply makes the message

slightly less graphic.”?” The research demonstrates that

nudity, as a component of exotic dance, is essential to the

25 Hanna, “Undressing ... ,” 1998, supra; Harr ,

“Toying ...,” 1999 supra.

26 A 1996 declaration by Dr. Donners. in describes his

research methodology and conclusions. A copy of that

declaration is included in the appendix to this brief along with

the study report. In addition, it can be found in the records of

this court in the Appendix to the Petition for Writ of Certiorari

filed by Deja Vu of Nashville, Inc. in Case No. 98-1935.

27 501 U.S. 560, 571 (1991).

messages conveyed by such dance. Without it, the

intended messages are substantially changed.

The study reveals that men judge nude dancers to be

communicating different messages than clothed dancers.

Ultimately, the study concludes that a dancer donning

pasties and a G-string conveys a significantly different

message compared to when she is nude.

4. Because The City of Erie Ordinance Bans All

Expressive Nudity, It Is Unconstitutionally Over-

broad.

Given the historical perspective of nudity in the per-

forming arts set out above, this Court is asked to review a

regulation that bans all performance nudity. The scope of

expressive conduct regulated by section 1(c) of Ordinance

No. 75-1994 goes far beyond the type of dance thought to

produce adverse secondary effects; it prohibits nudity in

mainstream artistic productions as well. Because the reg-

ulation sweeps too broadly, it must be found unconstitu-

tional.

A. The Ordinance.

The challenge in this case is directed at Section 1(c) of

Ordinance 75-1994. Section 1 provides:

1. A person who knowingly or intentionally in

a public place:—

a. engages in sexual intercourse;

b. engages in deviate sexual intercourse as

defined by the Pennsylvania Crimes Code;

Cc. appears in a state of nudity, or

d. fondles the genitals of himself, herself

or another person commits Public Inde-

cency, a Summary Offense. (Emphasis

added)

“Nudity” and “public place” are separately defined.

In addition to its ordinary meaning, nudity is defined in

Section 2 to include:

. . . the exposure of any device, costume or

covering which gives the appearance of or simu-

lates the genitals, pubic hair, natal cleft, peri-

ueum anal region or pubic hair region; or the

exposure of any device worn as cover over the

nipples and/or areola of the female breest,

which device simulates and give the realistic

appearance of nipples and/or areola.

Section 4 defines the term “Public Place” to include all

buildings owned by or open to the general public, speci-

fically including places of entertainment and theaters.

(Emphasis added)

On its face, the regulation prohibits any nudity in the

performing arts. In addition, it prohibits certain costumes

intended to convey a representational message?® and it

28 Under any interpretation of the ordinance, a performer

wearing a black body stocking that has material attached to it to

realistically simulate the nipple and areola would be “appearing

in a state of nudity” and, thus, guilty of a summary offense.

Even if a simulation is not realistic, a performer is guilty of a

summary offense if their costume gives the appearance of or

simulates the genitals, pubic hair, natal cleft, perineum anal

region or pubic hair region. Justice Souter concurred in the

judgment in Barnes, in part, because nothing short of the

— ——— Ss ss ee .

prohibits entertainers from touching themselves in the

genital area, even if fully clothed.?? Because of the exces-

sive sweep of the regulation, it is unconstitutionally over-

broad.

B. The Overbreadth Doctrine.

It has long been recognized that the First Amend-

ment needs breathing space and that statutes attempting

to restrict or burden the exercise of First Amendment

rights must be narrowly drawn and represent a consid-

ered legislative judgment that a particular mode of

expression has to give way to other compelling needs of

society. Broadrick v. Oklahoma, 413 U.S. 601, 612 (1963).

The “overbreadth doctrine” prohibits a statute from mak-

ing innocent or constitutionally protected conduct crimi-

nal. Id. at 613; Coates v. City of Cincinnati, 402 U.S. 611

(1971).

The harm from an overbroad statute is its chilling

effect on constitutionally protected or otherwise lawful

conduct. The loss or substantial impairment of precious

obscenity laws prohibited a dancer “from expressing an erotic

message by articulate speech or representational means.” 501

U.S. at 587. Here, even the attempt to represent the state of

nudity is prohibited.

29 While Section 1(d) was not challenged below, it clearly

regulates expressive conduct protected by the First Amendment

that does not involve nudity. For example, this section would

prohibit Michael Jackson’s performance in “Thriller,” where he

grabs his crotch or the routines of many comedians mimicking

the antics of professional baseball players adjusting themselves.

First Amendment rights may be critical, since those per-

sons covered by the statutes are bound to limit their

behavior to that which is unquestionably safe. Dom-

browski v. Pfister, 380 U.S. 479 (1965). The threat of sanc-

tions may deter their exercise almost as potently as the

actual application of sanctions. NAACP v. Button, 371 U.S.

415, 433 (1963).

Under the overbreadth doctrine, “an individual

whose own speech or conduct may be prohibited is per-

mitted to challenge a statute on its face ‘because it also

threatens others not before the court — those who desire

to engage in legally protected expression but who may

refrain from doing so rather than risk prosecution or

undertake to have the law declared partially invalid.’ ”

Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569,

574 (1987) (quoting Brockett v. Spokane Arcades, Inc., 472

US 491, 503 (1985)).

While the overbreadth doctrine is “strong medicine”

that is used “sparingly and only as a last resort,” Broad-

rick v. Oklahoma, 413 U.S. 601, 613, a plaintiff may prevail

on a facial attack by demonstrating that there is “a realis-

tic danger that the statute itself will significantly compro-

mise recognized First Amendment protections of parties

not before the Court . . . ” City Council of Los Angeles v.

Taxpayers for Vincent, 466 U.S. 789, 801 (1984).

In the First Amendment context, criminal statutes,

such as the one here, must be scrutinized with particular

care. “[T]hose that make unlawful a substantial amount

of constitutionally protected conduct may be held facially

invalid even if they also have legitimate application.”

Houston v. Hill, 482 U.S. 451, 459 (1987).

C. Application Of The Overbreadth Doctrine

The Erie ordinance prohibits nudity in all live perfor-

mances, including those with “serious” literary, artistic,

or political value. The ordinance contains no limiting

provisions and makes no attempt to regulate only those

expressive activities that are alleged to cause purportedly

harmful secondary effects.*°

The threshold inquiry for purposes of First Amend-

ment analysis is whether the purpose of the Ordinance is

to suppress communication. The preambles to the ordi-

nance plainly state that it was adopted

for 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 vio-

lence, sexual harassment, public intoxication,

prostitution, the spread of sexually transmitted

diseases and other deleterious effects.

The stated purpose of the ordinance focuses on the nega-

tive secondary effects of “nude live entertainment,” not

the evils, in general, of nudity in the performing arts or

30 There is absolutely no evidence in this record linking

expressive nudity of the kind portrayed in performances of

“Hair,” “Bent” and “Equus” with the purported harmful

secondary effects of “providing an atmosphere conducive to

violence, sexual harassment, public intoxication, prostitution,

the spread of sexually transmitted diseases, and other

deleterious effects” targeted by the regulation.

nudity in public places.3! The ordinance states no moral

or practical objection to nudity in and of itself.

Given this explicitly stated purpose, Ordinance No.

75-1994 is not a law of general applicability that only

indirectly affects speech. See, Barnes v. Glen Theatre, Inc.,

501 U.S. 560, 572 (1991), Scalia, J. concurring. The per-

ceived evil that Erie seeks to address is live adult enter-

tainment. The ordinance specifically targets live nude

entertainment because of the perceived “secondary

effects” associated with that type of expressive conduct.32

31 While there is a general “moral disapproval of people

appearing in the nude among strangers in public places”, this

societal disapproval does not apply when the nudity is part of

an artistic representation or presentation. As stated by Chief

Judge Richard Posner, “the nudity of a flasher and the nudity of

an artistic performer are not the same thing . . . the difference,

which is independent of the quality of the artistic performance,

is [John Stuart] Mill’s difference between self-regarding and

other-regarding conduct. The flasher thrusts his nudity on an

unwilling stranger; the artistic performer sells nudity to willing

customers.” Posner, Richard A., Sex and Reason, pp. 379-380

(Harvard University Press, 1992).

32 Were the regulation targeted at the persuasive effect of

the speech, as seems likely here, it would surely be

unconstitutional. In Boos v. Berry, 485 U.S. 312, 321 (1988), the

court said:

Regulations that focus on the direct impact of speech

on its audience present a different situation.

Listener’s reactions to speech are nct the type of

‘secondary effects’ we referred to in Renton. To take

an example factually close to Renton, if the ordinance

there was justified by the city’s desire to prevent the

psychological damage it felt was associated with

viewing adult movies, then analysis of the measure as

a content-based statute would have been appropriate.

Insofar as the ordinance attempts to prohibit, in any

kind of performance, costuming that simulates nudity, it

is not nudity that is prohibited; rather, it is the idea and

representation of nudity that is suppressed. This prohibi-

tion is clearly content-based.

Because the purpose of the regulation is to suppress

expressive conduct in order to ameliorate the alleged

secondary effects caused by live nude entertainment, the

regulation must survive an enhanced level of scrutiny

which requires the Court to determine whether there is a

substantial justification for the proscription. Barnes v.

Glen Theatre, Inc., 501 U.S. 560, 578-79 (1991), Scalia, J.,

concurring.

The Pennsylvania Supreme Court describes the enter-

tainment offered by Pap’s A.M. as “nude erotic dancing,”

674 A.2d 338, 340 (1996) and as “the same exact variety as

the restricted entertainment in Barnes.” Id., at 344. Pre-

sumably, the City intended to include only the kind of

live nude entertainment described in Barnes since the

preambles to the ordinance reflect that it relied upon

Barnes in passing the ordinance.

Whatever the intent, the sweep of the regulation here

goes far beyond the kind of dance described in Barnes.

The regulation reaches all performance nudity, including

that which has not been shown to cause adverse second-

ary effects. Neither the ordinance itself nor the state

The hypothetical regulation targets the direct impact

of a particular category of speech, not a secondary

feature that happens to be associated with that type of

speech.

courts have limited the application of the ordinance so

that it does not apply to the performing arts.

The City of Erie bears the burden of demonstrating a

substantial governmental interest justifying the ban on

theatrical nudity. Renton v. Playtime Theatres, Inc., 475 U.S.

41, 50-51 (1986). There is no evidence in the record here

that nudity in productions performed in mainstream the-

atres can be causally connected to the presumed evils

targeted by Erie, whether by mere correlation or by the

persuasive effect of the nudity. See, Barnes, 501 U.S. at

585-86, Souter, J., concurring. Absent such evidence, the

regulation impermissibly burdens a substantial amount

of protected speech.

Throughout this litigation, Pap’s A.M. has challenged

Section 1(c) of ordinance No. 75-1994 as being unconstitu-

tionally overbroad.*° Had a similar challenge been raised

in Barnes, it is clear that five (5) members of the Court

would have found the statute there unconstitutional. Jus-

tice Souter, noting that there was no overbreadth chal-

lenge before the court, indicated that the secondary

effects rationale on which he relied would be open to

question if the statute could be used to bar expressive

nudity in classes of productions that could not readily be

analogized to the adult films at issue in Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986).

It is difficult to see, for example, how the

enforcement of Indiana’s statute against nudity

33 Pet. App. A at 3a.

in a production of “Hair” or “Equus” some-

where other than an “adult” theater would fur-

ther the State’s interest in avoiding harmful

secondary effects, in the absence of evidence

that expressive nudity outside the context of

Renton-type adult entertainment was correlated

with such secondary effects.

Barnes, 501 U.S. at 585 n. 2. The productions Justice Souter

would have been loathe to prohibit in Barnes fall squarely

within the prohibitions of Section 1(c) of Ordinance No.

75-1994.

While a statute is overbroad if it sweeps constitu-

tionally protected expression within its prohibitions, the

Court has indicated that “where conduct and not merely

speech is involved, we believe that the overbreadth of a

statute must not only be real, but substantial as well,

judged in relation to the statute’s plainly legitimate

sweep.” New York v. Ferber, 458 U.S. 747, 770 (1982). Amici

respectfully submit that the overbreadth of the regulation

here is not hypothetical; rather, it is both real and sub-

stantial.

urie’s ban on performance nudity sweeps within its

ambit expressive conduct not generally associated with

prostitution, sexual assault, or other crimes; i.e., nudity

used as a communicative medium in operas, ballet, plays,

musicals and other serious artistic performances. Here,

the potential impermissible applications of Section 1(c)

dwarf the assertedly legitimate reach of the regulation.

In addition to banning nudity, the regulation pro-

hibits costumes that simulate specified anatomical parts

of the human body. Whatever evidence may exist to

demonstrate a correlation between live nude entertain-

ment and adverse secondary effects does not support the

conclusion that there is a link between artistic produc-

tions which have *. wdity, but use costumes that simu-

late the nude condition, and secondary effects.

From its analysis, it is abundantly clear that the

Pennsylvania Supreme Court, like the trial court, found

the regulation at issue unconstitutionally overbroad

because it reached far more speech than was essential to

accomplish the expressed governmental interest in elim-

inating alleged secondary effects associated with live

nude entertainment. U.S. v. O’Brien, 391 U.S. 367, 377

(1968) (the incidental restriction on alleged First Amend-

ment freedoms can be no greater than is “essential”).

Consequently, the court severed the portion of the ordi-

nance that brought the performing arts within its regula-

tory sweep. In doing so, the Court refused to rewrite the

ordinance to permit nudity in performances other than

“live nude entertainment.”™

3% Throughout this litigation the City has asked the courts

to rewrite the ordinance in order to remove its unconstitutional

overbreadth. Failing this, the City argues that, in the exercise of

its prosecutorial discretion, it would never prosecute

mainstream theatrical productions. Joint Appendix 88-89. The

City essentially asks this Court to rely on its good judgment that

it will not enforce the ordinance against nude entertainment

that might appear in the context of a theatrical performance or

“serious” dance. The mere existence of discretion is the evil that

the overbreadth doctrine seeks to cure. Forsyth County, GA v.

Nationalist Movement, 505 U.S. 123 (1992); see also, City of

Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769

Because the Erie ordinance reaches a substantial

amount of protected expression and the State courts have

refused to render a narrowing construction, it is uncon-

stitutionally overbroad.

CONCLUSION

Section l(c) of Ordinance No. 75-1994 prohibits

nudity in the performing arts, thus effecting the messages

and content of “serious” artistic presentations. Because

the regulation is targeted at expressive nudity and

sweeps a substantial amount of protected expression

within its prohibitions, its overbreadth is both real and

substantial. As a consequence, the decision of the Penn-

sylvania Supreme Court should be AFFIRMED.

Respectfully submitted,

Jack R. Burns, WSBA #01590

Counsel for Amici

(1988) (the face of the ordinance contained no explicit limits on

the mayor's discretion). In Forsyth County, the Court stated:

. . . the success of a facial challenge on the grounds

that an ordinance delegates overly broad discretion to

the decision maker rests not on whether the

administrator has exercised his discretion in a

content-based manner, but whether there is yy

in the ordinance preventing him from — so.

U.S. at 133, n.10.

App. 1

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

IN RE:

STATE OF TENNESSEE PUBLIC MDL DOCKET

INDECENCY STATUTE NO. 1031

LITIGATION ALL CASES

JUDGE

ROBERT L. ECHOLS

AFFIDAVIT OF DR. EDWARD I. DONNERSTEIN

Dr. Edward I. Donnerstein, under penalty of perjury

under the laws of the States of Tennessee and California,

declares as follows:

1. I ama Professor of Communication and Psychol-

ogy at the University of California, Santa Barbara, and am

currently Chairperson of the Department of Communica-

tion. | was Chairperson of that Department from 1986 to

1991, Vice Chairperson from 1991 until 1994, and once

again returned as Chairperson this year.

2. I teach in the areas of the psychological effects of

media, mass media policy, policy implications of social

science research, and research design, methods and statis-

tics. | have taught these subjects, and particularly the area

of research design, since 1972, and my teaching experi-

ence has been in Illinois, lowa, Wisconsin, Canada, Beij-

ing, China, and in California.

App. 2

3. Although my research and teaching is devoted to

a wide variety of areas, I have developed over the years

the areas of specialization concerning the study of sexual

and/or erotic expression and the effects of such on

human behavior, and the effects of violent forms of com-

munication on individuals. My areas of concentration

often concern the intersection between psychological the-

ory and research and the law.

4. My expertise in the area of sexual and/or erotic

expression has resulted in me serving as a member on the

United States Surgeon General’s Workshop on Pornogra-

phy, chaired by then Surgeon General C. Everett Koop

during the Reagan administration, and as the lead social

science witness to the United States Attorney General's

Commission on Pornography chaired by Attorney Gen-

eral Edwin Meese, also during the Reagan administra-

tion, which has generally been referred to as the “Meese

Commission”.

5. I regularly obtain grants for the conducting of

studies that I have designed, and many of these grants

have been provided through various governmental agen-

cies and organizations, including the United States Army,

the National Institute of Health, the National Institute of

Mental Health, and the National Science Foundation. In

1994, I, along with a number of my colleagues, was

awarded a grant in excess of Three Million Dollars by the

National Cable Television Association to conduct research

from 1994 until 1998 with regard to the content of depic-

tions of violence on television; this grant being part of a

governmental and industry desire to assess the levels of

violence on television so as to inform legislators, parents

App. 3

and the industry on as to solutions regarding media

violence.

6. As indicated in my current Curriculum Vitae

(hereinafter “C.V.”), a copy of which is attached hereto

and incorporated herein by reference, I have published

regularly and frequently over 125 articles in my areas of

specialization. In addition, I have testified frequently as

an expert witness in court and before legislative bodies,

both domestic and foreign, regarding human sexuality,

pornography, violence, the media, and the effects of

erotic expression on human perceptions and behavior.

This testimony is set forth, in detail, on pages 27-28 on

my C.V., and includes testimony before the Canadian

Commission on Pornography and Prostitution, various

committees of the Parliament of Australia, the New Zeal-

and Indecent Publications Tribunal, the United States

Senate Judiciary Committee, and the Federal Communi-

cations Commission. I have been qualified as an expert

witness in the areas of erotic expression and its effect on

human perceptions and behavior in numerous courts in

the United States and Canada, including but not limited

to testimony in the United States District Court for the

Western District of Tennessee, in the case of United States

of America v. Ellwest Stereo Theatres of Memphis, Inc., et al.,

Case Nos. 89-20254-G, 89-20255-G, and 89-20256-G,

before the Honorable Julia S. Gibbons. Most recently, I

testified before the United States Senate Commerce, Sci-

ence and Transportation Committee on July 12, 1995 and

presented testimony on the effects of mass media vio-

lence. This testimony was offered in connection with the

research grant and study we are conducting concerning

App. 4

television violence and development of the so-called

“v-chip”.

7. I regularly and on an ongoing basis, design and

conduct research studies regarding the effects of mass

media, the effects of certain forms of expression upon

individuals and groups of people, and matters concern-

ing the interrelationship between the mass media and

social policy.

8. In fune 1995, I was contacted by Bradley J. Shafer

and asked to design and to conduct a study concerning

the expressive message being conveyed in erotic perfor-

mance dance, in order to determine what impact, if any,

there was on this message by the presence or absence of

nudity during such performances. In particular, we were

asked to test the accuracy of the statement in Barnes v.

Indiana, 501 U.S. 560, 571, 115 L.Ed.2d 504, __. S. Ct. __

(1991), that “the requirement that the dancers don pasties

and a G-string does not deprive the dance of whatever

erotic message it conveys; it simply makes the message

slightly less graphic”. Basically, we were asked to design

and carry out a study to determine if a nudity component

of certain erotic performance dance was part of the con-

tent of the message being communicated by and through

such dance, as opposed to being merely the manner in

which such dance was displayed, and if so, what impact,

if any, on such a message there would be by precluding

nudity in such dance performances.

9. With these goals in mind, my associate, Dan Linz,

and I visited an erotic dance establishment, Little Dar-

lings, in Las Vegas, Nevada, in order to familiarize our-

selves with the type of dancing involved, the manner in

App. 5

which it was normally performed, and to develop a con-

ceptual format for conducting a study. Little Darlings is

run by the “Deja Vu” organization, and, from what I have

been told, provides the same type of performance dance

entertainment as exists in other “Deja Vu” clubs around

the country, including that in Nashville, Tennessee. As a

result of this visit, consultations with Beth LePoire, a

professor in our department who specializes in non-ver-

bal communication, and consultations with Judith Lynne

Hanna, a cultural anthropologist who specializes in the

communicative aspect and content of performance dance,

we designed a study that objectively measures the impact

of nudity or non-nudity on the ability of an erotic enter-

tainer to effectively convey the message of her dance.

10. In designing this experiment, we actually chose

to conduct two (2) separate studies. This was done for

two reasons. First, one of the studies was part of a larger

study involving performance dance, a great deal of which

is irrelevant to the issues here and is not discussed in the

final report attached hereto. Second, two different types

of studies were chosen so that we would have greater

confidence in our results if, in fact, any differences were

measured between the nude and non-nude conditions as

a result of the responses received from the participants.

The first study, which I will refer to herein and which is

referred to in the attached report as “Study No. 1”, is

what is known as a “within subjects” design. This means

that every participant would see two dancers; one who

danced the performance clothed, and one who danced the

performance in such a fashion that she ultimately became

nude at some point. In a “within subjects” design, the

participant then is able to compare the two different

App. 6

performances. This first study was strictly limited to the

variable of nudity. The second study, which I will refer to

herein and in the attached report hereto as “Study No. 2”,

was designed, with regard to the variable of nudity, as a

“between-subjects” design. This means that participants

do not see both a performance in the nude, and a perfor-

mance clothed. They simply saw the same dance perfor-

mance (whether it be, randomly, nude or non-nude) at

varying distances (the distance variable being related to

the other portion of this study that is not relevant here).

As a consequence, the participants of this second study

were not afforded the opportunity to compare the same

dance performance in a condition of nudity and a condi-

tion where the performer was clothed. Because of this

lack of comparison, it is much more difficult to obtain

results where responses are different on the basis of the

variable chosen (here, nudity). Thus, when differences

are observed in a between-subjects study design, this

indicates that the chosen variable (here, again, nudity)

has an extremely strong effect on the perceptions and

attitudes of the ; irticipants, and that we can be

extremely confident that the measured differences are, in

fact, as a result of the study variable (i.e., nudity).

11. Attached hereto is the Final Report of the

Nudity and Message Effectiveness Studies that we con-

ducted, and I incorporate by reference the text of that

report herein. The final report was prepared by myself,

and my associate, Dr. Daniel Linz, and the statements and

findings as contained therein are true and accurate.

Below is a brief description of our study design and

methodology:

App. 7

a. Study Subjects. We determined that it was

appropriate to use regular patrons of an erotic dance

facility inasmuch as our goal was to measure the conse-

quences of various controls to dance entertainment upon

the intended audience of such entertainment. With a ran-

dom selection of subjects, there would undoubtedly be

some who found any sort of nude or erotic dance objec-

tionable. As a consequence, their responses would reflect

their distaste for the dance itself, rather than the discrete

variables we were attempting to measure. By selecting

club patrons, our study would not suffer from this prob-

lem.

b. The Dance. In viewing the establishment

offered at Little Darlings, it was immediately apparent

that each entertainer had her own style. In order to

control for variations in style which might affect the

communicative aspects of the dance, i.e., one style may be

more communicative than others, it was determined that

it would be necessary to choreograph a single dance so

that each subject was presented with essentially the same

dance, with the only variables being those that we were

seeking to measure. A professional choreographer was

retained to choreograph a specific dance routine and to

teach it to the entertainers that we were going to use in

the study. Prior to the commencement of the study, I

confirmed that all of the dancers knew the choreographed

dance routine and could consistently perform it. I have

reviewed the dance routine that was choreographed and

that was used throughout these studies, and is entirely

comprised of various dance performance components

that are regularly used, seen and displayed in the Little

Darlings club.

App. 8

c. The Entertainers. To the extent possible, we

attempted to recruit entertainers that possessed generally

the same physical characteristics. In addition, the enter-

tainers wore identical costumes, undergarments and per-

fume. Out [sic] goal was to reduce “attractiveness” as a

variable.

d. Study Format. With the cooperation of Little

Darlings, we isolated an area of the club with curtains.

This area was divided into four areas; an area for each of

three subjects, and a waiting area for the entertainers and

for our observer. When seated, a subject could not view

any other subject, the entertainer performing for another

subject, or the entertainer waiting area.

Nine separate entertainers were used in the study. In

Study 1, two (2) entertainers appeared randomly for each

set of subjects. In Study 2, three (3) entertainers appeared

randomly for each set of subjects. In Study 1, one of the

entertainers performed in such a fashion that she ulti-

mately became nude, and the other entertainer main-

tained wearing a bra and panties. In Study 2, each

entertainer performed the same dance, once for each of

the three (3) subjects.! Each subject received three (3)

dances; i.e., a dance at a distance of four (4) feet, a dance

at approximately six (6) inches, and a dance at six (6)

inches with a single brief touch on the cheek, shoulders

and forearm.? Half of the time, the dances were per-

formed in a nude condition. In this condition, the dance

1 On occasion, only two subjects would be available. On

those occasions, each subject still received three (3) dances, one

from each of the three entertainers dancing in that round.

2 As discussed above, because of the additional variable of

touch, no data concerning study participants who were

App. 9

started with the entertainers clothed in a dress only.

During the dance, the dress was removed so the enter-

tainer was entirely nude. The other half of the time, the

dances were performed in a non-nude condition. In this

condition, the entertainers wore a bra and panties under

the dress which were not removed when the dress was

removed. In this study, each participant would see the

three performers either all nude or all non-nude.

Prior to the dances, the subjects were instructed not

to talk to the entertainers. This was done in order to

control for the effect of verbal communication. While the

dances were being performed, we stationed an observer,

Eva Blumenthal, a graduate student in our communica-

tions department, in the room where she could observe

each dance. Her job was to verify that each dance was

performed as choreographed and that the study rules

regarding verbal communication were observed.

After the dances were completed, each subject was

asked to complete a questionnaire designed to measure

several attributes of the dance communication.

e. The Questions. The questions that were con-

tained in our studies, relating to perceptions involving

the dance performances, were derived from a number of

different sources. First, we were provided with copies of

the United States Supreme Court decision in Barnes v.

Glen Theatre, Inc., 501 U.S. __, 115 L.Ed.2d 504 (1991),

and the underlying Circuit Court of Appeals decision in

subjected to the “6-inch touch” performance is included in the

report attached hereto, and my opinions as contained within

this Affidavit are not based upon any such data.

App. 10

Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir.

1990). These cases discuss, and in particular the concur-

ring opinions in Miller, the “message”, ideas, and con-

cepts that are attempted to be conveyed and are conveyed

in and by erotic performance dance. Second, as refer-

enced above, an associate of mine, Dr. Beth LePoire, a

professor in our department, specializes in non-verbal

communication, and drafted a number of the questions,

particularly with regard to the relational communication

questions, as used in the study. Third, we received the

input and advice of Dr. Judith Lynne Hanna, a cultural

anthropologist, who has significant professional research

experience both in dance and erotic performance dance,

and who also provided to us various written materials on

these subjects. After receiving the input of these pro-

fessors, and my associate, Dr. Daniel Linz, we, in consul-

tation with one another, came to a consensus opinion as

to the questions to ultimately be used in these studies. In

my professional opinion, from the legal decisions that |

have been provided, from the research that I have con-

ducted, from my review of the topical literature, from my

previous professional experience and training, and from

the input that I have received from my colleagues, the

questions as contained in the two studies and as are

reported on in the final report attached hereto, are all

appropriate questions which measure the communica-

tional aspects and attributes of erotic performance dance.

12. We began gathering data on Monday, August 21,

1995 and finished on August 24, 1995. The results of both

of these studies are contained in the Final Report of

Nudity and Message Effectiveness Studies attached

hereto and incorporated herein by reference. The results

App. 11

found in the final report are statistically significant, and

contain the appropriate level and degree of confidence to

enable me to reach certain conclusions as a result of these

studies.

13. The findings as set forth in the final report are

reported in terms of probability factors (i.e., “P < .05”).

This is the confidence level that we would ascribe to the

reported results. Thus, if the report shows a probability

factor of .05 (“P < .05”), that means that we are 95% sure

that the results that have been obtained are as a direct

consequence of the variable as set forth in the study (i.e.,

nudity), as opposed to some random chance. The proba-

bility factors that we have utilized in these studies in

order to determine statistical significance are the gener-

ally accepted levels in the scientific community.

14. In analyzing the data obtained, the appropriate

scientific method would be to sum the responses to the

various questions as are contained within the three cate-

gories of measurement (relational communication, erotic

communication, and social communication), in order to

come up with three separate composite scores. This is the

appropriate scientific methodology to determine the sta-

tistical significance of the results obtained from these

studies, and we have reported the data as such. We have

also provided the statistically significant results obtained

on separate individual questions as a result of a request

of the attorneys involved in this matter.

15. The statistically significant results that we

obtained in comparing responses in the nude versus the

non-nude condition existed not only in the “within sub-

jects” design of Study 1, but were also similarly present

App. 12

in the “between-subjects” design of Study 2. This indi-

cates to me as a psychologist that the effects of the

variable of nudity upon the various aspects of expression

conveyed by erotic performance dance are extremely

strong, and are not the result of happenstance, random

chance or other such factors.

16. The primary findings of these studies are that:

a. The relational communication as expressed

in erotic performance dance is significantly and substan-

tially reduced and degraded by precluding the enter-

tainer from becoming completely nude.

b. The erotic communication as expressed in

erotic performance dance is significantly and substan-

tially reduced and degraded by precluding the enter-

tainer from becoming completely nude.

c. The social message as expressed in erotic per-

formance dance is significantly and substantially reduced

and degraded by precluding the entertainer from becom-

ing completely nude.

17. Based upon these findings and the results of the

final report, I have reached the following conclusions

which I hold in my professional opinion to a reasonable

degree of scientific certainty;

a. In the context of erotic performance dance,

nudity is, itself, an expressive component of the dance

and not merely incidental conduct associated therewith.

b. In the context of erotic performance dance,

nudity is, itself, an expressive component of the dance

and not merely the manner in which such dance is per-

formed.

App. 13

c. The requirement that dance performers wear

covering of their genitals, breasts and buttocks signifi-

cantly and substantially deprives the dance of the rela-

tional message that is sought to be conveyed.

d. The requirement that dance performers wear

covering of their genitals, breasts and buttocks signifi-

cantly and substantially deprives the dance of the erotic

message that is sought to be conveyed.

e. The requirement that dance performers wear

covering of their genitals, breasts and buttocks signifi-

cantly and substantially deprives the dance of the social

message that is sought to be conveyed.

f. The requirement that dance performers wear

covering of their genitals, breasts and buttocks does not

simply make the message as expressed in the dance per-

formance slightly less graphic; it actually effects and sig-

nificantly alters the message being conveyed.

g- In the context of erotic performance dance,

nudity is not simply a non-communicative element, but

is, actually, an integral part of the content of the expres-

sion.

h. The requirement that dance performers wear

covering of their genitals, breasts and buttocks are not, in

the context of erotic performance dance, unrelated to the

content of the expression that is sought to be communi-

cated thereby.

i. Regulations that would require an erotic

dance performer to maintain covering of her breasts,

buttocks, and genitals are directed at the content of the

expression as contained in erotic performance dance.

App. 14

j. In the context of erotic performance dance,

nudity is part and parcel of the relational, erotic, and

social communication sought to be communicated

thereby, and is not the mere manner of a performance or

incidental conduct thereof.

k. The relational, erotic, and social communica-

tion sought to be communicated by erotic performance

dance is significantly and substantially effected, reduced,

and degraded by the requirement that performers refrain

from exposing their breasts, buttocks, or genitals.

DATED at Santa Barbara, California, this 11th day of

9, 1995.

/s/ Edward I. Donnerstein

Edward I. Donnerstein

Subscribed and sworn to before me this 10th day of

November, 1995.

/s/ Mlegible

Notary Public

Harris, Texas County, California

My Commission Expires: 7-2-96

App. 15

Final Report

of the

Nudity and Message Effectiveness Studies

Date:

Prepared For:

Prepared By:

October 31, 1995

Shafer & Associates, P.C.

A Professional Corporation

3800 Capital City Blvd., Ste #2

Lansing, MI 48906

Dr. Edward Donnerstein

and Dr. Daniel Linz

Department of Communication

University of California

Santa Barbara, CA 93106

INTRODUCTION

BACKGROUND

Anti-nudity Statutes and Erotic Expression

Theoretical Background

TABLE OF CONTENTS

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Design ..... 0. cece cece cece eee e eee eeeneeeees 4

DBR NTNEES occ ccncccarcvdcednccsavesetecncctas 4

s..... PRPPPECTTTTITIOTIT Tree 6

RESULTS OF EXPERIMENT 1....... 22... 0 eee eee 8

Relational Communication .......... 66.6. .eeee eee 8

Erotic Communication ...... 6.6.66 c eee eee eens 9

Boaiad GRD . os vse dccccccccucdccvcctvdescsucotees 10

ERIS Bien sb< ves cncncdeevsasndaneeeees ewervesecess 11

DED nw ce cncvevecdecdvctesscabevesabasneéses 11

MPT TTETIPITET ELIT Teer 11

DOSIGT 2... ccc cccccnercncccccccevesseeeesees 11

DRNGRIEED . occ cncnces cotavssescsnesedsesésess 11

PUBGOONTD «oo cc ccccccveccccovesscsccscceeess 12

RESULTS OF EXPERIMENT 2............. 00000005 14

Relational Communication ....... 6... 6.66665 sees 14

Erotic Communication ........ 6.66060 eee eee cence 15

ec ka cecvesccscccsnceevescccccescctesees 16

ts TTT TTT TT TTT TTT Tit ite 17

Boog 3) Serre 18

App. 17

INTRODUCTION

The purpose of this study was to determine whether

the erotic, relational, and social messages conveyed by

erotic dancers are significantly influenced by the variable

of nudity. The first study was conducted to examine only

the issue of nudity. In the second study, nudity and

distance between patron and entertainer were examined

as part of a larger project on erotic dance. In this report,

however, we will only discuss the results as they related

to nudity and those conditions which most resemble Deja

Vu in the present jurisdiction. Specifically, we tested the

hypotheses that: 1) partially clothed dancers would com-

municate a significantly less erotic, a different social mes-

sage and communicate a significantly less intimate

relational message than nude dancers. These hypotheses

are pitted against the collection of “null” hypotheses

offered by the plurality opinion of Chief Justice Rehnqu-

ist in Barnes v. Glen Theatre, Inc., 501 U.S. __, 115 L.Ed.

2D 504 (1991), which seems to imply that the erotic, social

and relational message content of erotic dancing is

unaffected by this variable.

BACKGROUND

Anti-nudity Statutes and Erotic Expression

Although divided as to exactly why, five members of

the Supreme Court in Barnes v. Glen Theatre (1991) agreed

that an Indiana statute prohibited nude dancing per-

formed as entertainment did not violate the First Amend-

ment. Chief Justice Rehnquist expressed the view that

nude dancing as entertainment is expressive conduct

within the outer perimeters of the First Amendment, but

App. 18

application of the Indiana statute to such dancing was

justified, despite the statutes incidental limitations on

some expressive activity. Applying the four part O’Brien

test (U.S. v. O’Brien, 391 U.S. 367, 1968), Chief Justice

Rehnquisi found that the Indiana anti-nudity statute was:

(a) within the state’s constitutional power, (b) designed to

protect public morals and public order and thus fur-

thered a substantial governmental interest, and was (c)

unrelated to the suppression of free expression, in that

the perceived evil that Indiana sought to address was not

erotic dancing but rather public nudity. Finally, the

requirement that the dancers wear at least “pasties” and a

“G-string” was, in Chief Justice Rehnquist’s opinion nar-

rowly tailored to achieve the state’s purpose.

Specifically with regard to part “c”, The Chief Justice

offered the opinion that “ . . . the requirement that the

dancers don pasties and G-string does not deprive the

dance of whatever erotic message it conveys; it simply

makes the message slightly less graphic. The perceived

evil that Indiana seeks to address is not erotic dancing,

but public nudity. This conclusion is buttressed by a

reference to the facts of O’Brien. In O’Brien, an act of

Congress provided that anyone who knowingly

destroyed a selective service registration certificate com-

mitted an offense. O’Brien burned his certificate on the

steps of the South Boston Courthouse to influence others

to adopt his anti-war beliefs. The Supreme Court upheld

his conviction, reasoning that the continued availability

of issued certificates served a legitimate and substantial

purpose in the administration of the selective service

system. O’Brien’s deliberate destruction of his certificate

frustrated this purpose and for this non-communicative

—_—

App. 19

aspect of his conduct, and for nothing else, he was con-

victed. It was assumed that O’Brien’s act in burning the

certificate had a communicative element in it sufficient to

bring into play the First Amendment, but it was for the

noncommunicative element that he was prosecuted. So

here with the Indiana statute; while the dancing to which

it was applied had a communicative element, it was not

the dancing that was prohibited, but simply its being

done “in the nude.”

The dissenting opinion in Barnes concurred with the

Seventh Circuit Court of Appeals which had earlier ruled

the Indiana ordinance unconstitutional, finding that nude

dancing conveyed a “message of temptation and allure-

ment” that was protected by the First Amendment. The

dissent noted that in arriving at its decision, the Plurality

had conceded that nude dancing conveys an erotic mes-

sage, and concluded that the message would be muted if

dancers were required to wear pasties and G-strings. The

dissent asserted that “ . . . the emotional or erotic impact

of the dance is intensified by the nudity of the perfor-

mers . . . the nudity of the dancer is an integral part of the

emotions and thought that a nude dancing performance

evokes. The sight of a fully clothed, or even partially

clothed dancer generally will have a far different impact

on a spectator than that of a nude dancer, even if the

same dance is performed.”

Theoretical Background

Nudity. Social psychological and communication

theory would suggest that contrary to Chief Justice Rehn-

quist’s assertions in Barnes, nudity will influence

App. 20

judgements and attitudes among those who view an

erotic dance. Nude photographs are rated as more

“erotic” by viewers and greater attention is paid to the

nude than clothed actor, and cognitions about sex and

pleasure are stimulated in the viewer which are reinforc-

ing under conditions of nudity. The message of eroticism

is considered to be higher.

Social messages are also conveyed by nudity. Nudity

may convey a social message that women can express

themselves as freely as men or that the female body is

beautiful. In art, the naked form is presupposed to be

beautiful. Nakedness has been traditionally associated

with freedom in our culture. Recently, the argument has

been made that women should be free to express their

sexuality. Nudity could symbolize these messages.

Relational messages should also be affected. Nudity

should make a difference in areas like expressing inti-

macy, liking, and desire because of sensory involvement

and changed expectations about behavior among the

interaction participants. These cues and expectations

influence how we perceive and provide a frame of refer-

ence for interpreting the communication.

The language of the questions asked participants in

this study was drafted so as to be both scientifically

sound and consistent with legal definitions applicable to

the law in this case. In deciding the types of questions to,

we relied upon decisions in Barnes and in Miller v. Civil

City of South Bend, 904 F2d 1081, 1089 (7th Cir. 1990), as

well as psychological and communication theory. For

example, using Miller we selected the question asking if

App. 21

the dancer’s dance was “alluring with a message of temp-

tation” (Miller v. Civil City of South Bend, 904 F2d 1081,

1089 (7th Cir. 1990). Experts in dance (Professor Judith

Hanna) and relational communication (Dr. Beth LePoire)

were consulted for advice on other questions.

STUDY I

METHOD

Subjects

Twenty male patrons of the Little Darlings dance club

of Las Vegas were recruited for participation in the study.

Design

A two-level, within subjects design (dancer nude v.

dancer partially clothed), was employed. Patrons viewed

two dancers in random order.

Materials

Consent form. Participants were asked to read and

sign a consent form which read as follows:

This is to acknowledge that I have been

informed that I will be asked to view three adult

entertainment dances. Each dance will last

approximately 3 minutes. I understand that

these dances may involve nudity. I also under-

stand that during the three dances I am not to

talk to the dancers and while performing the

dancers will not talk to me except to introduce

themselves. I also understand that I am not

allowed to touch any of the dancers. I further

App. 22

understand that I will be asked to complete a

short questionnaire before I see the dances and

one or more short questionnaires after I have

seen the dances. Your Participation in this

study and any answers which you give will be

completely confidential. | understand that if I

have any problems during the study I am to

contact any one of the staff personnel who will

answer any questions or address any concerns I

may have. I understand that for my participa-

tion, which will last approximately 20 minutes,

I will be provided a Deja Vu VIP Card which

can be used at Deja Vu clubs nationwide. My

signature below indicates that I have freely vol-

unteered for this dance evaluation and under-

stand what I will be asked to do during this

evaluation.

Pre-dance questionnaire. Before viewing the erotic

dance, participants completed a questionnaire which

asked them to report: 1) Business or a personal relation-

ship with anyone that worked in this Little Darling’s

establishment, Deja Vu dance clubs across the country, or

with anyone in the exotic dance industry; 2) If they had

heard anything about this study or the specific questions

asked; 3) Whether that [sic] had previously visited this

Little Darlings club or any club where nude or exotic

dancing is offered; and 4) Employment in any capacity in

law enforcement. If the participant answered YES to

questions 1, 2 or 4, they were to be deleted from the

study. No participants answered YES. In addition, demo-

graphic information including, age, race, religiosity, mari-

tal status, income, political orientation (Conservative-

Liberal), and level of education was requested of the

participant.

App. 23

Post-dance questionnaire. After viewing the dances,

the participants completed a questionnaire which con-

tained the following items relevant to this study measur-

ing relational, erotic and social communication.

1. Relational communication. “Did you feel that the

dancer was expressing to you through her dance the

fantasy that: (a) She wanted to make you feel like you

were a special person? (b) She liked you? (c) She was

personally interested in you? (d) She desired you? (e)

There was intimacy between the two of you? (f) She

wanted to be romantically involved with you?”

2. Erotic communication. “The Dancer’s dance was: (a)

Passionate. (b) Artistic. (c) Sexy. (d) Erotic. (e) Alluring

with a message of temptation. (f) Seductive. (g) Stimulat-

ing. (h) Personal.”

3. Social message. “Did the dancer express to you that:

(a) Women can express themselves as freely as men? (b)

She was free to do what she wanted with her body? (c)

The female body is beautiful?”

Each question subcomponent was followed by a “Defi-

nitely Yes” to “Definitely No” response scale anchored by

the numbers 1 and 8. The were also asked if they had ever

had a private one on one dance with this entertainer? If

they answered YES they were to be eliminated from the

analysis. No subjects answered YES.

Procedure

The study was conducted at the Little Darlings dance

club, Las Vegas, Nevada. Participants visiting the club

between 12:00pm and 9:00pm during the week of August

App. 24

19-23, 1995, were randomly recruited to watch two

dances. The recruitment was done by Dr. Dale Kunkel

and/or Mr. Tim Gray of the University of California-

Santa Barbara. The solicitation of participants used the

following outline:

Hello. My name is . I work for a

research company that has been hired by the

club to study how people react to several differ-

ent types of dances that they might want to use

in the club. We are recruiting participants for the

study right now. We need people who are will-

ing to watch two dances we are evaluating. Each

dance will be done privately for you by a differ-

ent woman. After you have seen each dancer,

you will then be asked to fill out a questionnaire

that tells us what you think about each of the

dances. If you are willing to participate, | can

offer you a VIP card which allows free admis-

sion to any Deja Vu club. It will only take about

15-20 minutes to complete the study. Would you

like to do this?

After being recruited, two participants at a time were

taken to a closed off room in the back of the main club

area where they read and signed the Consent form. They

were then provided the following instructions about the

completion of the Pre-dance questionnaire:

Before we have you view the dances, we need

you to answer a few questions about yourself.

All of the information you provide is confiden-

tial and fully anonymous. It will never be exam-

ined individually. We are interested only in the

overall reactions of large groups of people.

Please complete this questionnaire and return it

to me when you've finished. Let me know if you

heve any questions. Once you’re finished, it will

just be a short wait before we begin the dances.

App. 25

After completing the form, the two participants were

taken to an adjoining room where they were to watch the

dances. The participants were separated from each other

by a partition. Once seated, they were given the following

instructions:

We are going to show you two dances. Each one

will be presented by a different performer. It is

important that you do no. . .k to or touch any of

the dancers. There will be a brief pause between

each dance. Please stay seated until the second

dance has been completed. Do not offer the

dancers any tips or money. Afterwards, I will

give you a questionnaire that asks you how you

felt about each of the dances. Remember that we

are interested in getting your reaction to each

dance that you see. We are not trying to evaluate

the women who are dancing. Nothing that you

tell us will be used to affect a dancer in any way.

Once you have completed the questionnaire, |

will give you the special VIP card for future

admission to any Deja Vu dance club as our

thanks for your help.

Participants then viewed two dancers performing;

one nude and one non-nude dance. Each dance was 3

minutes in length. The dance routine and the music

accompanying the dance were held constant across the

nude and non-nude conditions. It is important to note

that except for the nude vs non-nude part of the dance,

all other aspects of the dance were identical (e.g., same

shoes, costume, perfume, distance, lighting, music, etc.).

The dancers were trained by a professional dance choreo-

grapher so as to assure that each dance was identical

except for the condition of nudity. All dancers began their

routine with a black dress which was removed within

App. 26

seconds of the beginning dance. Dancers in the non-nude

condition were clothed in a bra and panty, while those in

nude condition did not wear these items of clothing.

Eight dancers were randomly assigned to the nude and

not nude conditions. The dancer in any one sequence

would perform nude (or non-nude) for one participant

and then move over to the next participant to perform the

same dance. In a following sequence the same dancer

would perform non-nude (or nude). In order to assure

that the dancers were performing the correct routine, Ms.

Eva Blumenthal of the University of California-Santa Bar-

bara coordinated the schedules of the dancers and

observed all performances.

After viewing the dances, the participants were taken

back to the adjoining room where they had completed the

earlier consent form. They were given the Post-dance

questionnaire by Dr. Kunkel and Mr. Tim Gray which

contained a picture of each of the dancers they had seen.

Dr. Kunkel and Mr. Gray explained how to complete the

questionnaire and answered any questions the participant

had. Subjects were separated in distance in order that

they could not view each others responses. Upon comple-

tion of the questionnaire, the participant was thanked for

their participation and presented the VIP card.

RESULTS OF EXPERIMENT I

Relational Communication. There were six items which

comprised the Relational Communication questions. The

question and items were as follows:

Did you feel that the dancer was expressing to you

through her dance the fantasy that:

App. 27

1. She wanted to make you feel like you were a special

person?

She liked you?

She was personally interested in you?

She desired you?

There was intimacy between the two of you?

- FF. Ff Ff FP

She wanted to be romantically involved with you?

These six items were summed to form a composite

measure for Relational Communication. A t test (Nude vs

Not Nude) on the Relational Communication measure

revealed a significant effect for Nudity (p<.005), with

Nude dancers being rated as more generally expressive

overall than their Non Nude counterparts. These results

are displayed in Figure 1.

Individual analysis on each of the six items showed

significant effects on the following questions:

a. She wanted to make you feel like you were a

special person (p<.05)

b. She liked you (p<.01)

c. She was personally interested in you (p<.01)

d. There was intimacy between the two of you

(p<.05)

e. She wanted to be romantically involved with

you (p<.06)

These results are displayed in Figure 2. In all cases, Nude

dancers were rated more expressive on each of these

items than Non Nude dancers. The remaining item, while

App. 28

not statistically significant, showed the same pattern of

results, and had more participants been used in this

study, the results would have been statistically signifi-

cant.

Erotic Communication. There were eight items which

comprised the Erotic Communication questions. The ques-

tion and items were as follows:

The Dancer’s dance was:

Passionate

Artistic

Sexy

Erotic

Alluring with a message of temptation

Seductive

Stimulating

PweMPP FP PP PF

Personal

These eight items were summed to form a composite

measure for Erotic Communication. A t test (Nude vs Not

Nude) on the Erotic Communication measure revealed a

significant effect for Nudity (p<.03), with Nude dancers

being much more erotic overall than their Non Nude

counterparts. These results are displayed in Figure 1.

Individual analysis on each of the eight items

showed significant effects on the following questions:

a. Erotic (p<.01)

b. Alluring with a message of temptation (p<.05)

c. Stimulating (p<.01)

App. 29

These results are displayed in Figure 3. In all cases, Nude

dancers were rated much more expressive on each of

these items than Non Nude dancers. The remaining

items, while not statistically significant, showed the same

pattern of results, and had more participants been used in

this study, the results would have been statistically signif-

icant.

Social Items. Three additional questions were asked in

this study. They were: Did the dancer express to you that:

1. Women can express themselves as freely as men?

2. She was free to do what she wanted with her body?

3. The female body is beautiful?

These three items were summed to form a composite

measure for Social Communication. A t test (Nude vs Not

Nude) on the Social Items measure revealed a significant

effect for Nudity (p<.04), with Nude dancers being rated

as more generally expressing these social communication

points than their Non Nude counterparts. These results

are displayed in Figure 1.

Individual analysis on each of the items showed the

following significant effects:

a. Women can express themselves as freely as men

(p<.05)

b. She was free to do what she wanted with her

body (p<.06)

Nude dancers received a higher agreement score than

Non Nude dancers on each of these items. This result is

presented in Figure 4. The remaining item, while not

App. 30

statistically significant, showed the same pattern of

results, and had more participants been used in tie

study, the results would have been statistically signifi-

cant.

STUDY 2

METHOD

Subjects

Thirty male participants in the Little Darlings dance

club of Las Vegas who had been recruited for participa-

tion in a larger study involving other (besides nudity)

aspects of performance dance fell within the categories

relevant for this limited study of the effects of nudity.

Design

A 2 X 3 mixed, within-subjects and between-subjects

factorial design was employed. The within subjects vari-

able was distance from participant (4 feet, 6 inches, or 6

inches with touch’).

1 The present study will only analyze the results for the 4

foot and 6 inch condition. The 6 inch touch condition was

examined for a larger study as part of this project. The touch

condition is another variable of interest in performance dance,

but is not of concern in the present case. Given that the

participants viewed the dances in random order, it is

methodologically and statistically appropriate to exclude the 6

inch touch condition from our analysis. We should note that the

effects of nudity on all measures would actually be significantly

stronger had the touch condition been included in the analysis.

App. 31

The two between-subjects variables were nudity

(dancer nude or non-nude).

Materials

Consent form. Participants were asked to read and

sign a consent form like that of Study 1.

Questionnaires. Pre- and post-dance questions were

identical to Study 1, with the exception of Social Message

questions.?

Procedure

The study was conducted at the Little Darlings dance

club, Las Vegas, Nevada. Participants were recruited in a

manner similar to that of Study I by Dr. Kunkel and Mr.

Gray between 12:00pm and 9:00pm during the week of

August 19-23, 1995. For this study 3 participants at a time

were recruited.

After being recruited, the participants were \ken to

a closed off room in the back of the main club area where

they read and signed the Consent form. They were then

provided the instructions about the completion of the

Pre-dance questionnaire as were used in Study 1.

? Study 2 was conducted prior to Study 1. It was a larger

study which was interested in other variables (distance,

lighting) not at issue in the present case. Upon the completion of

this larger study, a smaller study concerned only with nudity

(Study 1) was conducted. The researchers decided to add the

Social Communication questions to this smaller study.

Consequently, they are not part of the present study and

analysis.

App. 32

After completing the form, the participants were

taken to an adjoining room where they were to watch the

dances. The participants were separated from each other

by a partition. Once seated, they were given the following

instructions:

We are going to show you three dances. Each

one will be presented by a different performer.

It is important that you do not talk to or touch any

of the dancers. There will be a brief pause

between each dance. Please stay seated until the

last dance has been completed. Do not offer the

dancers any tips or money. Afterwards, I will

give you a questionnaire that asks you how you

felt about each of the dances. Remember that we

are interested in getting your reaction to each

dance that you see. We are not trying to evaluate

the women who are dancing. Nothing that you

tell us will be used to affect a dancer in any way.

Once you have completed the questionnaire, |

will give you the special VIP card for future

admission to any Deja Vu dance club as our

thanks for your help.

Participants then viewed the three dances, one at a

time, in random order. Eight dancers were employed and

randomly assigned three at a time to distance conditions.

The dance routine and the music accompanying the

dance were held constant except for variations in dis-

tance. The dancers were trained by a professional choreo-

grapher to perform exactly the same routine at each

distance, save a brief touch to the shoulders and arms

under the 6 inch touch distance (see footnote 1). During

any one sequence of three dances, all the dancers per-

formed either Nude or Non-nude. The Nudity condition

was reversed for the next sequence. Each dance was 3

App. 33

minutes in length. As in Study 1, all aspects of the dance

were identical (e g., same shoes, costumes, perfume, dis-

tance, lighting, music, etc.) except for the distance from

the participant and the variable of nudity. All dancers

began their routine with a black dress which was

removed within seconds of the dance commencing.

Dancers in the non-nude condition were clothed in a bra

and panty, while those in nude condition did not wear

these items of clothing. In order to assure that the dancers

were performing the correct routine, Ms. Eva Blumenthal

of the University of Califomia-Santa Barbara coordinated

the schedules of the dancers and observed all perfor-

mances.

After viewing the dances, the participants were taken

back to the adjoining room where they had completed the

earlier consent form. They were given the Post-dance

questionnaire by Dr. Kunkel and Mr. Tim Gray, which

contained a picture of each of the dancers they had seen.

They were also asked if they had ever had a private one

on one dance with this entertainer. If they answered YES

they were to be eliminated from the analysis (2 partici-

pants did answer Yes and their responses are not

included). Dr. Kunkel and Mr. Gray explained how to

complete the questionnaire and answered any questions

the participant had. Subjects were separated in distance

in order that they could not view each others responses.

Upon completion of the questionnaire, the participant

was thanked for their participation and presented the VIP

card.

App. 34

RESULTS OF EXPERIMENT 2

Relational Communication. There were six items which

comprised the Relational Communication questions. The

question and items were as follows: Did you feel that the

dancer was expressing to you through her dance the

fantasy that:

1. She wanted to make you feel like you were a special

person?

2. She liked you?

3. She was personally interested in you?

4. She desired you?

5. There was intimacy between the two of you?

6. She wanted to be romantically involved with you?

Subjects responses were summed to form one composite

score on Relational Communication and subjected to a 2 x 2

Analysis of Variance (ANOVA) with Nudity (Nude vs

Not Nude), and Distance (4 feet vs 6 inches) as factors.

The analysis revealed significant effects for Nudity

(p<.03) and Distance (p<.01). There were no significant

interactions, indicating that Nudity by itself had a signifi-

cant impact on the effectiveness of Relational Communica-

tion, with Nude dancers being rated more expressive

overall than their Non Nude counterparts. These results

are presented in Figure 5.

Individual analysis on each of the six items showed

significant effects for Nudity on the following questions

(there were no Nudity x Distance interactions):

EE oe

App. 35

a. She wanted to make you feel like you were a

special person (p<.03)

b. She was personally interested in you (p<.05)

c. She desired you (p<.02)

d. She wanted to be romantically involved with you

(p<.05)

These results are displayed in Figure 6. In all of these

cases Nude dancers were rated more expressive than Non

Nude dancers. The remaining items, while not statis-

tically significant, showed the same pattern of results,

and had more participants been used in this study, the

results would have been statistically significant.

Erotic Communication. There were eight item [sic] which

comprised the Erotic Communication questions. The ques-

tion and items were as follows: The Dancer’s dance was:

Passionate

Artistic

Sexy

Erotic

Alluring with a message of temptation

Seductive

Stimulating

SND Ww F YH

Personal

These eight items were summed to form one composite

score on Erotic Communication and subjected to a 2 x 3

ANOVA with Nudity (Nude vs Not Nude) and Distance

App. 36

(4 feet vs 6 inches) as factors. The analysis revealed a

significant effects [sic] for Nudity (p<.02). There were no

interaction effects. Results showed that Nude dancers

were rated as much more significantly erotic overall than

their Non Nude counterparts. These results are displayed

in Figure 5.

Individual analysis on each of the eight items

showed significant effects for Nudity on the following

questions (there were no Nudity x Distance interactions):

a. Passion (p<.02)

b. Artistic (p<.06)

c. Erotic (p<.01)

d. Alluring with a message of temptation (p<.04)

e. Stimulating (p<.06)

These results are displayed in Figure 7. In all of these

cases, Nude dancers were rated more expressive on [sic]

than Non Nude dancers. The remaining items, while not

statistically significant, showed the same pattern of

results, and had more participants been used in this

study, the results would have been statistically significant

(except for Personal). ,

DISCUSSION

Governmental restrictions on nudity, when applied to

the context of erotic performance dance, are not merely

time, place and manner restrictions that have no impact

on the content of speech. Nudity is, itself, a part of the

communication expressed in erotic performance dance.

These restrictions are related to the content of erotic

App. 37

performance dance expression, and significantly and sub-

stantially alter the content of the message being conveyed

by the performer and the meaning ascribed to the dance

by the viewer. Significant and substantial changes in the

erotic message, relational message, and social messages

of erotic performance dance is noted when the enter-

tainers refrain from exposing their breasts, genitals, and

buttocks. The present studies strongly demonstrated that

the effectiveness of the communication as contained in a

dancer’s performance was significantly altered by the

condition of nude vs. Non-nude. Overall, nude dancers

were seen as expressing a significantly stronger rela-

tional, erotic, and social message than non-nude dancers.

There is no question from these studies that the effective-

ness and content of these messages are significantly

impacted by nudity of the law thereof.

REFERENCES

Barnes v. Glen Theatre, 501 U.S. __, 115 L.Ed.2d 504

514 (1991) eas

Miller v. Civil City of South Bend, 904 F2d 1081, 1089 (7th

Cir. 1990)

O'Day et al. v. King County, 1988

U.S. v. O'Brien, 1968

LIST OF FIGURES

Figure 1: Effect of Nudity on Combined Communication

Scales - Study 1

Figure 2: Effect of Nudity on Relational Communication

Items — Study 1

App. 38

Figure 3: Effect of Nudity on Erotic Communication

Items - Study 1

Figure 4: Effect of Nudity on Social Communication

Items - Study 1

Figure 5: Effect of Nudity on Combined Communica-

tion Scales - Study 2

Figure 6: Effect of Nudity on Relational Communica-

tion Items — Study 2

Figure 7: Effect of Nudity on Erotic Communication

Items — Study 2

Communication Scale

App. 39

Figure 1

Effect of Nudity on Combined Communication Scales

3 4 5

Average Score on Question

(Lower Scores = Better Message Effectiveness)

App. 40

Figure 2

Effect of Nudity on Relational Communication Items

Relational Message

a: @ Nude

interested C] Not Nude

3 4

5 6 7

Average Score on Question

(Lower Scores = Better Message Effectiveness)

Erotic Message

App. 41

Figure 3

Effect of Nudity on Erotic Communication Items

@ Nude

[] Not Nude

4 5

Average Score on Question

(Lower Scores = Better Message Effectiveness)

Social Message

App. 42

Figure 4

Effect of Nudity on Social Communication Items

Express

@ Nude

[] Not Nude

Free :

2 3 4

Average Score on Question

(Lower Scores = Better Message Effectiveness)

Communication Scales

App. 43

Figure 5

Effect of Nudity on Combined Communication Scales

Relational

M@ Nude

[] Not Nude

Erotic

3 a 5 6 7 8

Average Score on Question

(Lower Scores = Better Message Effectiveness)

App. 44

Figure 6

Effect of Nudity on Relational Communication Items

@®

ie)

w”

~ interested ~

~ @ Nude

r.. [] Not Nude

3 4 Ae 6 7 8

Average Score on Question

(Lower Scores = Better Message Effectiveness)

Erotic Message

App. 45

Figure 7

Effect of Nudity on Erotic Communication Items

@ Nude

[] Not Nude

Average Score on Question

(Lower Scores = Better Message Effectiveness)

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.