Introduction
Sexuality refers to sensation and linked closeness between two human beings. In psychological terms, sexuality is the way through which people make an expression of the completeness of love between a woman and a man. In biological terms, this is the means through which the conception of a child occurs and the ancestry is passed over to the next generation. The purpose of this paper is to look at the issue of public expressions of sexuality concerning the law in the United States. In this paper, is going to be established that public expressions of sexuality in the United States is an issue that has been of much concern for the law enforcement agencies.
Expression of Sexuality and the Law
Erotic nude dancing is found to rank quite high among the media for sexuality expressions (Seckinelgin, 2009). For instance, the Ballet Ruse of Serge Diaghilev led to the creation of a scandal before the First World War in Paris at the time the lead dancer by the name Nijinsky Vaslav, putting on a very tight body stoking stimulating the nude body, engaged in enacting a masturbation fantasy before people on the stage to the intense nervous tensions of the Debussy’s tone poem referred to as “Prelude to the Afternoon of a Faun” (Leonard, 2013, p. 261). However, such utilization of nudity as a way of sexual expression came quite late in the whole game, since the erotic dancing as an artistic medium has old roots in several world cultures.
However, this kind of expression sometimes come into conflict, with the American society’s prudery long subjugated by the Puritan ethos, which prohibited public sexuality expressions being inappropriate to the public morality. In the course of the 1800s, several states, Indiana included, passed laws that banned any form of public nudity. Indeed, such laws were utilized by the law enforcement authorities in prosecuting the nude dancers and companies for whom they performed. However, even if the laws of such kind turned out to be of many lawsuits during the 1970s, as well as the 1980s as altering the sexual mores. Apparently, the customers’ demands contributed towards having an increasing number of the nude dancers in bars and it was not until the year 1991, in the case Barnes v. Glen Theater in Indiana, that the United States Supreme Court addressed the constitutional merits in a direct manner of the laws utilized in penalizing activities of such kind.
The law of the Indiana State, regularly rephrased and enacted again, was quite recently embodied of the 1976 law of “public indecency” that caused it to be misdemeanor for any human being to intentionally or knowingly, in a public area, get involved in sexual intercourse, divert sexual conduct, appear in the nudity state, or fondle the sexual organs of her or himself (Weeks, 1998). Indeed, the law gave definition of nudity to mean the portrayal of human female or male genitals, buttocks or public area with less than a completely opaque covering, “the showing of female breast with less than a fully opaque covering or any part of the nipple, or the showing of covered female genitals in a discernibly turgid state” (Leonard, 2013, p. 261). Based on the interpretation of the Indiana law, this meant that the female dancers who had a wish to look nude had to put on ‘pasties’ completely covering their “G-string’ and nipples covering the anus and public area.
The original efforts to pose a challenge to the law as unconstitutionally overbroad in going to the unprotected expression were clearly met by a suing construction in the Supreme Court of Indiana. The Court held in the State v. Baysinger case that the law might be interpreted to permit some nudity as being a portion of a bigger form of sexual expression that merits the protection, at the time there is involvement of communication of ideas is essential to evade constitutional issues. The United States Supreme Court took a step to dismiss an appeal from such decision, clearly accepting that the law, as interpreted, was not found to be overbroad, but not giving out an opinion that was written. However, in a case that followed, the Supreme Court of Indiana shed some form of doubt on whether it had really restricted the law application, when it made a ruling in the year 1984 in Erhard v. State that the law could indeed partially penalize nude dance in the contest of “Miss Erotica of Fort Wayne” (Leonard, 2013, p. 261).
Between the years 1985 and 1986, some cases came up in South Bend, out of efforts by the law enforcement officers to undertake the enforcement of public law nudity against the adult bookstores and bars. In this situation, two specialtry and the Chippewa Bookstore dancers, Glen Theaters Corporation, engaged in the filing of a case in the federal district court, looking for an announcement that the nudity law was not constitutional and indeed, it was a restriction against its operation against them. Apparently, the bookstore had been attacked by the police on some occasions, leading to 11 arrests of the dancers and several prosecutions, even though at the time there was the filing of the complaint, there were no prosecutions that were going on. The construction of the bookstore was carried out in a way that the passerby could view what was going on inside, and the clients who wanted to see nude dancing would not be in one room with the dancers, but instead would see them via glass panels from a different room. Notably, all clients were of the age of over eighteen years and paid the admission fee. The clients were given advice before they were admitted to see the nude dancers. Moreover, there was no selling of alcohol in the premises. Lee Klein of Okemos and Charles Asher of South Bend appeared on behalf of dancers and the bookstore. Robert Rosenfield, the Deputy Attorney of South Bend, and William Daily, the Assist Attorney General of Indianapolis represented the city and the state respectively.
Allen Sharp, the Chief Judge, made a ruling in July 1985 that there should be issuing an injunction preventing the department of police from undertaking enforcement of the law against Chippewa. The judge drew a conclusion that the public nudity law was indeed overbroad on its face because there were various contexts where public nudity might be a portion of the expression that was constitutionally protected. Having a recognition that the Supreme Court of Indiana had upheld the law against an overbroad test in Baysinger, the judge made an observation that a ruling that was followed by the United States Supreme Court, in the case of Schad v. Mount Ephraim, had tended to have recognition that nude dancing had the protection of the First Amendment, an issue which the Supreme Court of Indiana admitted in its ruling of Baysinger. As a result, one of the premises that underlay that ruling had been taken over by a development that came later. Moreover, Sharp, the Chief Judge, took note that the decision of the Indiana Court tended to lead to the extension of the reach of the law to conditions, which might not have been eliminated by alleged narrow construction of Baysinger; hence shedding doubt on the constant vitality of such narrowing. Accordingly, the judge drew a conclusion that the petitioners had a logical possibility of prevailing on merits. Ostensibly, he found quite minimal difficulty in drawing a conclusion that the law enforcement pending a last decision on merits would lead to the imposing of irreparable damage on the petitioners that would be bigger than the harm that is imposed on the city or state. Indeed, the judge established that there was an immense public interest in the protection of the 1st Amendment rights while the interest of the state in the prevention of "public indecency" would not be undermined by the preliminary directing law enforcement. After more consideration of argument, the judge replaced a permanent sanction for his primary sanction on October 10 in the year 1985, and the state made an appeal to United States Supreme Court for the 7th Circuit that heard the oral argument from Asher and Daily on April 18, in the year 1986.
In the meantime, encouraged by the order given by Sharp, other adult-oriented companies in South Bend, which wished to exhibit nude dancing within their premises, prepared to do so. However, such businesses received warnings from the local police about the way they should go about their business. Some dancers, as well as proprietors, filed a case in the federal court with an intention of looking for an injunction relief, which was similar to the one awarded to the Glen Theaters. In this regard, there was hearing that was held by Robert Miller, the district judge, on May 5, in the year 1986. Such cases were pending at the time the 7th Circuit was issuing the judgment in the appeal of the state.
Apparently, an undivided 7th Circuit panel made a ruling on September 30 that Sharp had
misinterpreted his power regarding the overbreadth concern. In this regard, Chief Judge Walter Cummings dedicated most of his opinion to the defining the dismal of the Supreme Court with no opinion of the appeal in that case. Fundamentally, the judge drew a conclusion that the dismal of the Supreme Court was, in effect, a decision on the merits of the concern whether the law of Indiana, was interpreted the supreme court of the state, was overbroad in breach of the 1st Amendment, hence Sharp was precluded from the reconsideration of that concern. Moreover, Judge Cummings did not find any support for the argument that the subsequent opinion of the Supreme Court in Schad that a particular state could not ban an entertaining program just because it shows the naked human figure and had made a comment that nude dancing is not without its 1st Amendment protections for the official regulations. Indeed, this did not imply that the Court, in any way, had upset the overbreadth decision in Baysinger. Notably, Schad is in line with the decision of Baysinger that nudity required to be brought together with some expressive activity before falling in the 1st Amendment protection. This means that the concern for Sharp was whether or not the law was overbroad; instead, whether or not an application to the performance of nude dancing proposed by petitioners in the case was unconstitutional. Considering the approval of the Supreme Court of Baysinger, the only left issue that was open was whether the law, as applied, was unconstitutional. Apparently, a facial challenge was prohibited by the binding precedence. On remand, Judge Sharp engaged in the consolidation of Glen theater case with two cases pending before Judge Miller, Diamond v. Civil City of South Bend and Miller v. Civil City of South Bend, and held a fresh hearing on the 11th January in the year 1988, during which he set deadlines for briefs submission and suggested findings of fact. Indeed, oral argument was held on the 15th of July 1988. In this regard, the materials that were submitted by the petitioners were a videotape of the nude dancers of the mind they suggested to present. Taking up the factual findings of Judge Miller in the Miller and Diamond lawsuits, and his personal findings in the Glen Theater lawsuit, supplemented by the fresh stipulations and the video tape, Sharp made a ruling the 9th of September, in the year 1988 that the law of Indiana could be applicable constitutionally to the nude dancers suggested by the petitioners. Judge Sharp drew a conclusion that the dancing the plaintiffs intend to perform is not an expressive activity, which is protected by the U.S. Constitution. He further pointed out that such strip tease dances are not undertaken in any dramatic or theatrical context, and their conduct falls in the banning of the Public Indecency statute that has been established to be constitutional. Moreover, the judge pointed out that the court could not find any constitutionally defended expression in such performances, and had to draw a conclusion that the dancers are only conducted. In essence, he dismissed the petitions and imposed costs on the petitioners. Cummings dedicated most of his opinion to the defining the dismal of the Supreme Court with no opinion of the appeal in that case. Fundamentally, the judge drew a conclusion that the dismal of the Supreme Court was, in effect, a decision on the merits of the concern whether the law of Indiana, was interpreted the supreme court of the state, was overbroad in breach of the 1st Amendment, hence Sharp was precluded from the reconsideration of that concern. Moreover, Judge Cummings did not find any support for the argument that the subsequent opinion of the Supreme Court in Schad that a particular state could not ban an entertaining program just because it shows the naked human figure and had made a comment that nude dancing is not without its 1st Amendment protections for the official regulations. Indeed, this did not imply that the Court, in any way, had upset the overbreadth decision in Baysinger. Notably, Schad is in line with the decision of Baysinger that nudity required to be brought together with some expressive activity before falling in the 1st Amendment protection. This means that the concern for Sharp was whether or not the law was overbroad; instead, whether or not an application to the performance of nude dancing proposed by petitioners in the case was unconstitutional. Considering the approval of the Supreme Court of Baysinger, the only left issue that was open was whether the law, as applied, was unconstitutional. Apparently, a facial challenge was prohibited by the binding precedence. On remand, Judge Sharp engaged in the consolidation of Glen theater case with two cases pending before Judge Miller, Diamond v. Civil City of South Bend and Miller v. Civil City of South Bend, and held a fresh hearing on the 11th January in the year 1988, during which he set deadlines for briefs submission and suggested findings of fact. Indeed, oral argument was held on the 15th of July 1988. In this regard, the materials that were submitted by the petitioners were a videotape of the nude dancers of the mind they suggested to present. Sharp drew a conclusion that the dancing the plaintiffs intend to perform is not an expressive activity, which is protected by the U.S. Constitution. He further pointed out that such strip tease dances are not undertaken in any dramatic or theatrical context, and their conduct falls in the banning of the Public Indecency statute that has been established to be constitutional.
Conclusion
Erotic nude dancing is found to rank quite high among the media for sexuality expressions. Apparently, such form of expressions sometimes come into conflict, with the American society’s prudery long dominated by the Puritan ethos, which prohibited public sexuality expressions being inappropriate to the public morality. Notably, the law was recently embodied in the 1976 law of "public indecency" that caused it to be misdemeanor for any human being to intentionally or knowingly, in a public area, get involved in sexual intercourse, divert sexual conduct, appear in the nudity state, or fondle the sexual organs of her or himself. At some point, the Court held in the State v. Baysinger case that the law might be interpreted to give room for some form of nudity as being a portion of a greater kind of sexual expression, which qualifies for the protection, during the involvement of communication of ideas that areimportant to get away from constitutional concerns. In this sense, the Supreme Court undertook a move to dismiss an appeal from a decision of that kind, having an acceptance that the law, as interpreted, was not actually overbroad, but not giving out an opinion that was put down in writing. Fundamentally, there has been an issue as to whether public expressions of sexuality are indeed a violation of law. In this regard, there is a need for further research on the issue of whether people should be allowed to engage in public sexual expression because it is their individual rights as provided by the United States Constitution. Many issues have come up concerning sexuality including the issue of same sex marriage. The claims have been that there should be no violation of people’s constitutional rights. Accordingly, it is important to do more research of the issue of public expressions in the United States of America.
References
Leonard, A. S. (2013). Sexuality and the Law: American Law and Society. New York, NY: Routledge.
Seckinelgin, H. (2009).Global Activism and Sexualities in the Time of HIV/Aids.Contemporary Politics, 15 (1), 103-118.
Weeks, J. (1998).The Sexual Citizen.Theory, Culture and Society, 15 (35), 54-62.
