An exotic dancer in Orange County, Fla., claims the county's public nudity ordinance impermissibly distinguishes between nudity in adult entertainment clubs and "legitimate" theater.
Kim Gatena alleges in a federal lawsuit, Gatena v. County of Orange, that the county's "disparate double standard" with respect to nudity violates the First Amendment.
The ordinance provides that "it shall be unlawful for any person to knowingly or intentionally appear nude in a public place." However, county officials exempt nudity that is "expressive conduct incidental to and necessary for the conveyance or communication of a genuine message or public expression."
To support her claim, Gatena submitted to the court an affidavit from a private investigator who says that he saw nudity at an April performance of the play Six Appalling People. The investigator says in his affidavit that "the female actor had her breast fully exposed, facing the audience."
Gatena contends that her nude dancing at adult entertainment clubs is protected by the First Amendment. "When combined with music, a nude woman engaged in dance is a form of art that conveys an important message of sexuality and eroticism," her complaint says.
Gatena says in another of her legal papers: "The government cannot pick and choose what type of nude dancing and entertainment it will prohibit. This common-sense maxim finds support in the First Amendment which prohibits content or viewpoint based laws."
She says that county officials' treatment of nudity at adult entertainment businesses constitutes both content and viewpoint discrimination.
Steven Mason, Gatena's attorney, said: "A fundamental bedrock principle of the First Amendment is that the government cannot legislate away our First Amendment freedoms in the form of censorship."
However, Joel Prinsell, the senior assistant county attorney, says the ordinance is constitutional. "There was a nearly identical ordinance from nearby St. Johns County that was upheld from constitutional attack by both this very same federal district court and by the U.S. Court of Appeals for the 11th Circuit in Atlanta," he said.
"How is the nudity in Six Appalling People any different than the nudity that occurs in a dance club?" Mason asks. "There is no difference."
Prinsell, who has a motion asking for dismissal of the case before the court, says there is a legally significant difference.
"The nudity in the scenario of adult entertainment clubs has adverse secondary effects on the community, while nudity in passing at some of these theatrical performances creates none of these same secondary effects," he says.
"I wonder if his [Prinsell's] response would be the same if a theater started offering burlesque shows," Mason says. " This notion of what is 'genuine' or 'bona-fide' communication is so subjective. No U.S. Supreme Court stands for the proposition that you can treat nudity differently depending on the forum where it's offered."
Prinsell says county officials are caught in a Catch-22: "It's almost like we're damned if we do and damned if we don't. If we have the exemption for nudity at legitimate theater, we get a lawsuit like the Gatena case; if we did not have the exemption, these same people would challenge our law and say that it was overbroad."
Neither Prinsell nor Mason would predict when the federal district court will rule on the city's motion to dismiss.