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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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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