CARSON CITY, Nevada – Nevada Supreme Court justices Wednesday showed a keen interest in a Las Vegas ordinance that prohibits exotic dancers from “fondling or caressing” customers.
Justices peppered attorneys for the female dancers and the city with a variety of questions, many involving the subject of whether nude dancing is a form of constitutionally protected freedom of expression.
Las Vegas’ ordinance makes it a misdemeanor for an erotic dancer to “fondle or caress any patron” or for customers to fondle or caress dancers.
The City Council’s purpose in passing the ordinance, Deputy City Attorney Ed Poleski told the justices, was to prevent prostitution, drug use and fraud at strip clubs.
When Justice Jim Hardesty asked whether erotic dancing had the “full benefit” of protection under the First Amendment, Poleski argued that it did.
“You can express yourselves, but you can’t touch patrons in a manner intended to be sexually arousing,” Poleski said.
“Why is the patron there?” Justice Bill Maupin said.
“They’re there to be sexually aroused,” Poleski replied.
Las Vegas Municipal Judge Betsy Kolkowski had ruled Las Vegas’ ordinance unconstitutional because the “fondle and caress” tests were too vague. After District Judge Sally Loehrer upheld that decision, the city appealed to the state Supreme Court.
Jonathan Powell, the female dancers’ attorney, said the city, in adopting the ordinance, considered a “no touch” prohibition for dancers, but discarded that idea.
The resulting “fondle and caress” language in the ordinance is confusing, Powell told the court.
Poleski, though, argued that such language has “passed constitutional muster” in other courts.
Justice Nancy Becker said the ordinance allows a stripper to dance as close as she wants to a patron but “draws the line at touching.”
The purpose of strip clubs and lap dances, she said, is to sexually arouse the customer. “Frankly, I don’t know what other purpose there is to a lap dance,” Becker said. “But I’m not a guy so maybe I don’t know.”
Justice Michael Douglas inquired whether the ordinance was enforced at bars where male dancers perform. Powell said he did not know.
Becker suggested that the City Council could have avoided the confusion by following a law in Washington state that bars any physical contact with patrons, keeping dancers a minimum of 10 feet away from customers.
The Supreme Court will issue a decision later.