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South Bend nudity case goes from Supreme Court to the stage

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Following the completion of arguments before the Supreme Court of the United States, Indiana attorney Wayne Uhl found himself in a gaggle of reporters on the outside plaza. The 1991 case with its questions about nude dancing, pasties, G-strings and First Amendment rights had, not surprisingly, attracted national media interest.

“Have you ever been to a strip club?” one reporter asked.

“No,” Uhl responded.

“Why not?” the reporter pressed.

“That’s not my kind of entertainment,” Uhl shot back.

Certainly the performances in adult venues are not to everyone’s taste, but the dispute over artistic expression and public indecency captured in Barnes v. Glen Theatre, 501 U.S. 560 (1991), is the subject of the off-Broadway play, “Arguendo.” The Elevator Repair Service theater company in New York created the work using only the texts from the Supreme Court arguments and from television interviews given by the principle participants.
 

broadway01-15col.jpg An actor portraying Indiana attorney Wayne Uhl (above) argues the case before the U.S. justices in “Arguendo.” Uhl, (below) outside the Supreme Court of the United States in 1991, answers questions from reporters. (Photo/Joan Marcus)

The case originated in South Bend when the local prosecutor, Michael Barnes, now a judge on the Indiana Court of Appeals, filed misdemeanor charges against the dancers at the Kitty Kat Lounge and Glen Theatre. By performing without even scant clothing, the women were violating the state’s public indecency statute.


broadway02-15col.jpg(Photo submitted)

However, the dancers fought back, charging the law trampled on their right to free speech. They filed suit in federal court, and the parties battled all the way to the nine U.S. justices where, by a 5-4 vote, Indiana’s restriction on totally nude dancing was found to not violate the First Amendment’s guarantee of freedom of expression.

Uhl, now an attorney at Stephenson Morow & Semler in Indianapolis, is stunned that the words he used 22 years ago to persuade the Supreme Court justices have been deemed worthy of a play.

Word for word

The roots of “Arguendo” can be traced back to the Elevator Repair Service’s performance of “Gatz,” an eight-hour word-for-word delivery of F. Scott Fitzgerald’s novel “The Great Gatsby.”

Presenting every printed word of the novel on stage raised questions about copyright, fair use and intellectual property. That sparked John Collins, the company’s artistic director and founder, to take a closer look at the Supreme Court. In fact, according to “Arguendo” producer Ariana Smart Truman, Collins became “obsessed” with the Supreme Court and began listening to archived oral arguments online.

When the Elevator Repair Service was invited to make a presentation at the 2012 Guiding Lights Weekend in Seattle, Collins plucked the transcript from the Barnes v. Glen Theatre oral arguments.

From there, the company’s ensemble began crafting a stage play around every word that the attorneys and justices said at the Supreme Court and text from C-SPAN interviews with Uhl; the late Bruce Ennis Jr., who represented the dancers; and some of the dancers.

The actors reciting the words from the arguments make a compelling piece of theater, Truman said. “Arguendo” mixes in a little bit of absurdity and humor with the very interesting arguments and provides a peek into the Supreme Court without mocking or disparaging the judicial system.

Getting to 1 First St. NEarguendo-facts.jpg

Barnes flew to Washington just to hear the arguments in January 1991. He sat in the gallery of the court and sometimes had to stifle a chuckle as the attorneys and justices went back and forth about pasties, G-strings and free expression.

Also seated in the gallery were Uhl’s parents who had driven from Virginia to hear their son’s first – and to date only – appearance before the Supreme Court.

Uhl stood before the justices, having kept the case alive in the 7th Circuit Court of Appeals and then invoking a little wordplay to entice the Supreme Court.

After hearing the case, the U.S. District Court for the Northern District of Indiana ruled in favor of the state, holding the nude dancing being done was not expressive conduct. An appeal to the 7th Circuit was initially rebuffed when the judges said they could not determine if the dancing was expressive activity without evidence. So the dancers’ attorney videotaped their performance and submitted it to the court.

The 7th Circuit reversed the District Court. It found the non-obscene nude dancing at the two businesses was protected by the U.S. Constitution.

That’s when the case landed on the desk of Uhl, then a young lawyer in the Office of the Indiana Attorney General.

The robberies, fights and other assorted problems occurring around the clubs prompted Barnes to file the charges. Even now, the Court of Appeals judge does not waiver on his decision to bring charges, but they were misdemeanors and not a priority in the prosecutor’s office. As the case advanced, Barnes considered dropping the charges, fearing the local municipality could get stuck having to pay all the attorney fees if the city lost the case.

However, the state stepped in and took the case to protect the city’s coffers.

Uhl began by petitioning the 7th Circuit to rehear the case en banc. The 7th Circuit granted the petition and listened to the arguments but still found for the dancers in a 7-4 vote.

In filing the writ of certiorari, Uhl knew the Supreme Court had not traditionally taken cases that questioned the states’ ability to regulate establishments that served alcohol. So to show this case was different, he changed the name of the case from Miller v. Civil City of South Bend to the moniker that predominantly displayed Glen Theatre, an adult bookstore which did not have a liquor license.

Arguments and spinning chairs

On the morning of the arguments, Uhl and his team went to the Supreme Court building, entered the side door, made their way through a maze to the clerk’s office, signed in and then headed to the court’s cafeteria for breakfast.

He was nervous when he finally stepped before the justices but relaxed as he started presenting and answering questions during what became a lively session. Uhl actually made two arguments.

First, he asserted erotic dancing is not speech protected by the First Amendment because it does not communicate a particular message that a reasonable person would understand. The justices were unconvinced.

Uhl then switched to his second argument which did sway the majority. Even if dancing was speech, he contended, Indiana’s public indecency statute did not violate the Constitution when applied to barroom dancing because the statute was a general, content-neutral law that regulated conduct not speech.

To put the arguments on stage, “Arguendo” employs a minimal set design. The main visual element is an enormous projection behind the actors of references made during the oral arguments to precedent and the First Amendment.

At a particularly tedious point in the arguments between Uhl and Chief Justice William Rehnquist, “Arguendo” introduces a dance. Music plays, the justices spin in their chairs, papers fly while the talking continues.

The play concludes with the actor playing Ennis stripping and dancing nude to underscore the questions raised in Barnes v. Glen Theatre.

Uhl keeps a box of mementos from the case that includes photographs and a transcript of the arguments. He remains appreciative to the Indiana attorney general’s office for giving him the opportunity to handle the case and argue against the reputable Ennis. But, as for the ramifications of the decision, he is uncertain.

“I will leave to others any conclusion about whether the case had larger implications or a message,” Uhl said. “It turns out that I am a very poor judge of whether things carry a ‘message,’ at least for First Amendment purposes.”•

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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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