Under the Skirt

In Brief

The Supreme Court did some serious civic time last week when it upheld a law in Erie, Pennsylvania requiring strippers to wear pasties and g-strings by invoking a 328-word definition of exactly what a g-string is supposed to cover. In so doing, they carried the torch for the grand tradition of prevaricating whenever questions of smut make their way to the Court. Don't they have better things to do?

Party On

You might also be interested in: Damned Kids Kids screw with ex post facto laws throughout history De Sade De Sade was apparently not only a man with interesting tastes, but one with a knack for jailbreaks. The Great Titian Neo-classical art, with its luscious nudes, was often no more than smutty bedroom material.

The News

4/10/2000 On March 30, 2000 the Supreme Court ruled that cities and states can ban nude dancing. This will ostensibly combat crime and 'negative secondary effects'. The court's 6-3 majority didn't bother explaining how. So dancers in Erie, Pennsylvania have to wear pasties & g-strings now.

The practice of dictating morality has proven sticky for the Supreme Court throughout its entire existence, and the august body usually weasels its way out by throwing curveballs. Crushing the ambition of hoochie dancers everywhere, the Court ruled that states may legally require the use of pasties and g-strings this week [30 March 2000]. Justices Breyer, Kennedy, O'Connor, and Rehnquist argued that one could assume that nude strip clubs would attract an unsavory element to a city and that deleterious effects would swiftly follow. The esteemed justices must imagine pasties and g-strings induce locals to call each other "sir" and "ma'am", don petticoats, and attend charming tea parties. Justices Scalia and Thomas, ignoring said unsavory element that allegedly accompanies such activities, went so far as to argue that the "the traditional power of government to foster good morals" meant it was okay to ban such dancing and leave the First Amendment intact. We here at History House are interested to note the bottomless difficulty the Court encounters when grappling with these issues, how often it seems to pull justifications for rulings out of its butt and how this hasn't changed in three centuries.

The country's first poorly-designed attempt at curtailing lascivious behavior was in 1711, when then-colony Massachusetts declared that "evil communication, wicked, profane, impure, filthy and obscene songs, composures, writings or print" are naughty things, and that they "corrupt the mind and are all incentive to all manner of impurities and debaucheries." Our mothers said that, too.

The colonists, however, were an even-keeled lot. This statute was so subjective that nobody made use of it for over a hundred years. In 1815, one Jesse Sharpless started a little business by charging admission to see one of his prized, secret possessions: "a certain lewd, wicked, scandalous, infamous, and obscene painting, representing a man in an obscene, impudent, and indecent posture with a woman." He was convicted on obscenity charges. According to the ruling, he displayed the booty "to the manifest corruption and subversion of youth, and other citizens of this commonwealth, to the evil example of all others in like case offending, and against the peace and dignity of the Commonwealth of Pennsylvania."

Once obscenity laws were enforced, the courts had to deal with their slippery nature more often. In United States v. Ginzburg (1963)[1], Justice Brennan admitted that the particular materials Ralph Ginzburg published weren't actually that smutty. However, the Court felt obliged to convict him of something, so Brennan invented "pandering": he argued that, if the material was borderline-obscene, displaying it in a smutty venue made one a smut purveyor. Thus, a dirty painting in the National Gallery might be a great contribution to society, whereas the same painting hanging above a urinal in a casino might be criminal[2]. In cases where the offending material was "on the fence", pandering might push it one way or the other. For example, a movie house owner was later convicted (1972) for showing a certain film after it was learned he named his establishment the "Por-No" theater.[3] With a swift stroke, Brennan had increased the complexity of obscenity laws: now it wasn't just what the material was, but where it was displayed.

So where did Ginzburg go wrong? He published his works from Middlesex, New Jersey, after failing to secure mailing rights from the Pennsylvania towns of Intercourse and Blue Ball. Ginzburg's remarkable affinity for towns with dirty namesdoomed him. The Court sentenced him to five years in prison.

As one might expect, the Court's twisted logic and bewildering diction persists. This week's decision (again on an infraction committed in Pennsylvania, which seems to enjoy a disproportionately large number of obscenity cases) drew upon a legal definition of backside coverage offered by St. John's County, Florida. This 328-word diatribe offered dimensions like "one-half inch above the lowest point of the curvature of the fleshy protuberance (sometimes referred to as the gluteal fold)," and was liberally sprinkled with words like "nates", "hamstrings", and "vertical cleavage" in an effort to construct an imaginary picture frame where the human ass resides. For centuries of effort put towards controlling salacious behavior, the Court has little to show for it. It should maybe spend a little time on term limits or abortion, or at least treat itself to a pasty-clad lap dance.

Footnotes

1. United States v. Ginzburg, 224 F. Supp 129 [E.D. Pa. 1963]
2. Just the urinal would be okay. Ask Duchamp.
3. People v. Sarnblad, 26 Cal. App. 3d 801

 
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