SOUTH BEND, IND. -- Painted on the door of JR's Kitty Kat Lounge, a buxom woman dressed in a scanty leopard-print cat suit beckons customers into the bar. Inside, a red light revolves overhead as a blond woman in green lame and lace shimmies down the runway, hiking up her outfit to reveal nothing underneath. Topless, she faces a mirror and wiggles her bare bottom at an appreciative audience of men who stuff dollar bills into her garter as she dances by.
"Aren't you going to tip me?" she calls to a customer on his way out.
Seated at tables in the dark lounge, sparsely populated on a recent Wednesday night, bar girls cajole patrons into buying them drinks at $20 and up. An electronic message board mounted over the bar promises "the hottest show in town."
A bit too hot, in fact, for the state of Indiana. In a case to be argued Tuesday before the Supreme Court, the state contends that the nude dancing at the Kitty Kat club and similar South Bend establishments violates Indiana's public indecency law. The dancers, it says, must wear at least pasties and a G-string to comply with the statute, which makes it a misdemeanor to display male or female genitals and buttocks.
On the other side are the Kitty Kat, several dancers and a local adult bookstore that wanted to feature naked women dancing in glass booths, who contend that applying the law in this way would violate their constitutional rights of free speech.
On one level, the question presented by Barnes v. Glen Theatre is a straightforward and seemingly trivial one: whether the Constitution protects the right to dance without pasties and a G-string.
But the case also presents a more fundamental clash between community control and First Amendment values. For Indiana officials, and those supporting them, the court's decision will determine the ability of communities such as South Bend to enforce their own standards of moral decency.
The federal appeals court in Chicago ruled 7 to 4 that "non-obscene nude dancing of the barroom variety" is expression -- communicating an emotional theme of "eroticism and sensuality" -- and therefore entitled to protection under the First Amendment.
The Supreme Court, which will review the appellate decision, has strongly suggested in several cases that nude dancing is a form of speech covered by the Constitution but has never squarely decided the issue.
"What is at stake here is Indiana's ability to draw some kind of line that prohibits people from appearing naked in public," said Deputy Attorney General Wayne E. Uhl. "We think that especially at the Kitty Kat, but anywhere when people appear naked, that kind of conduct promotes prostitution, encourages sexual assault, degrades the performer and it leads to conduct such as adultery and divorce that breaks down the family structure."
Asked whether the risk of that is greater without pasties and a G-string than with them, Uhl said: "We think that's a reasonable conclusion that the legislature could draw."
The point is simple, said Elena Bowman, a member of the local women's commission who joined a friend-of-the-court brief on the state's behalf: "We don't want this in our community. That's what we're saying."
Those on the other side contend that what is at stake, at the very least, is the constitutional protection accorded various forms of nonverbal expression -- art, music and dance, whether the Dance of the Seven Veils in Strauss's "Salome," a nude performance by the Martha Graham Dance Company or the bump and grind of the Kitty Kat Lounge.
"From a First Amendment perspective, this is a very important case," said Bruce J. Ennis Jr., a Washington lawyer who will argue on behalf of those challenging the prohibition. He said the state can enact zoning restrictions to control adult entertainment, and -- under the 21st Amendment, which repealed prohibition -- prohibit nude dancing in places where alcohol is served, but cannot outlaw it entirely.
The issue "is not that someday we will think of what happens at the Kitty Kat Lounge as high art," Ennis said. "It's that it is very dangerous to let the state make for people the decision about what is or is not sufficiently artistic."
Bowman and Mary Slafkosky and Louann Hill and Sally Beard deny that is what they are seeking. They just want to clean up their community. They want to return South Michigan Avenue, the aging commercial area where the Kitty Kat and the Ace-Hi Lounge and Ramona's Car Wash and the other strip joints are located, to the way they remember it, when there were nice stores and a men's fine clothing shop, and you could walk down the street without worrying about being mugged.
They are members of the St. Joseph County Commission on the Status of Women, which has voted to support a ban on nude dancing in establishments that serve liquor. This is conduct, they say, not speech.
"You can dance nude but you can't pray in school," said Hill, 34, the county's purchasing manager. "That does not compute with me."
They are candid in acknowledging that requiring dancers to wear pasties and a G-string would be just a start. "I view this more as a first step to doing something about the whole issue -- pornography, strip bars," said Bowman, a 30-year-old controller at a private school. "People have called this a decadent country. Maybe it is. But we have to have limits somewhere."
"If they want to do that in New York, that's their business. Or Chicago, closer to home," said Beard, an employment counselor. "But in our county, we have always perceived St. Joseph County as a family environment, and to keep it that way, you have to have standards."
Brenda Gill, a local resident who brought the issue to the attention of the commission when she discovered her husband frequenting strip joints and spending large sums of money there, said she is not interested in stamping out legitimate art but rather saving families -- and the dancers themselves -- from the problems nude dancing generates.
"You can't even compare it to an operatic dance where they're nude. You can't even compare it with 'Hair,' " the 1967 musical that includes nudity, she said. In the bars, she said, "the nude dancing is mainly a prelude to the hustling that goes on" as dancers solicit men to buy them drinks. Gill also suggested prostitution goes on, an allegation bar owners and dancers deny.
But Slafkosky, the commission's president and sales director at a health care group, questioned whether there is a distinction. Of a modern dance performed in the nude, she said, "That is very borderline. I don't think you have to perform nude in order to have entertainment. . . . I don't feel you have to be suggestive and nude and have quote 'artistic freedom' in order to have entertainment."
Slafkosky said she wished more modern entertainment could be wholesome, like the movie "Dances With Wolves," although the Indiana law, if applied to the film, would prohibit the shot of Kevin Costner's nude rear.
In addition to banning the display of buttocks and genitals, the law prohibits "the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state."
"It's so upsetting to think that anybody who wants to take the Constitution and stretch it to their point of view can take our value system down," she said. "Those guys who wrote the Constitution would be twirling" at the thought that conduct like nude dancing would be viewed as free speech.
Interviewed offstage at the Kitty Kat later that night, the dancer in green lame, who gave her name as Sonny Lacy, said women like Slafkosky and the others are moralistic busybodies.
"I think they ought to leave us alone, just leave us alone," she said over a $20 drink. "We're not doing anything wrong. It's a living." Lacy said she performed with pasties and a G-string for 11 of her 15 years as a dancer, and "there's a big difference. You hear a lot of complaints from the customers. Plus it made me feel like I'm supposed to be ashamed of what I have and I don't like that."
Lacy said it was not farfetched at all to think of her dancing as expression protected by the First Amendment. "This is like ballet," she said. "You express yourself through ballet, through music, and this is the same as freedom of speech." The message, she said, is "more or less, 'Here I am, watch me, I'm good.' "
Kitty Kat owner Arthur Ford agreed. "Are they expressing themselves up there?" he asked, gesturing toward a dancer wearing nothing more than a white belt around her hips. "They're not standing up there lifeless."
Also, he said, the bar attracts twice as many customers when the dancers are completely naked. "You get more when they're nude," Ford said. "If you're 21 years old, you should be able to see what you want to see. They're trying to take away all our freedoms."
The concept of nude dancing as speech stems from the idea that the constitutional protection for speech covers nonverbal communication -- like music -- and conduct -- like flag-burning -- that also embodies elements of expression.
The appeals court decision featured a division between two of the court's best-known and most conservative members about how that principle applied in this case.
In an opinion concurring in the conclusion that dance is "inherently expressive," Judge Richard A. Posner disputed the concept that the Constitution protects only expression that conveys a particular idea. Such a rule, he said, would allow government to ban Titian nudes along with striptease artists. While there is a clear difference in aesthetic quality between the two, Posner said, that does not justify suppression of the non-obscene.
"If the striptease dancing at the Kitty Kat Lounge is not expression, Mozart's piano concertos and Balanchine's most famous ballets are not expression," he said. "If the only expression that the First Amendment protects is the expression of ideas and opinions, then most music and visual art and much of literature are unprotected. This would be a shocking contraction of the First Amendment as it has come to be understood."
In argument at the appeals court, Posner added, the state's lawyer "reassured us that the nude paintings that hang in museums are safe, although he would acknowledge only a limited acquaintance with such museums. Recent events in a state bordering on Indiana make one wonder how safe even museums will be if the spirit of censorship is allowed to flourish," he said in an apparent reference to the unsuccessful prosecution of a Cincinnati art gallery for displaying explicit photographs by Robert Mapplethorpe.
In a dissenting opinion, Judge Frank H. Easterbrook dismissed the notion that dancing is "speech," noting that one of the Kitty Kat dancers, Darlene Miller, had said her aim was "to try to get customers to like her so that they will buy more drinks later."
The majority opinion, he said, reflects the "belief that states may draw no lines where art is concerned," he said. "Sophisticates go to the museum and see Renoir's 'Olympia' or to the opera and see a soprano strip during the Dance of the Seven Veils in Strauss's 'Salome.' If the First Amendment protects these expressions, the argument goes, Joe Sixpack is entitled to see naked women gyrate in the pub.
"Why does this follow? . . . Rembrandt applied paint to canvas; a bucket of paint hurled at a canvas also deposits paint. A conclusion that Rembrandt's paintings are speech would not imply that all paint is expressive."
To recognize that the line between barroom dancing and ballet may be "indistinct," he said, "is not to say that no state may recognize the difference. . . . Barroom displays are to ballet as white noise is to music."
In an interview, Indiana attorney Uhl said the law could constitutionally prohibit nude ballet as well. "It depends on whether the nudity in that production is essential to the art," he said. "It may very well be that the nudity is gratuitous. . . . 'Salome' or 'Hair' or 'Oh! Calcutta' can come to South Bend. They just have to keep their nipples and their genitals covered."