Public Decency: Kelley’s Dance

As interpreted by the late Chief Justice Fred Vinson, the First Amendment to the Constitution is based on the theory that “speech can rebut speech, propaganda will answer propaganda,” and free debate will be a bulwark against tyranny. Just what Kelley Iser has to add to that debate is not clear at first glance. Kelley is a California nightclub dancer whose specialty was described by police as “30 seconds of wiggling around on her hands and knees with her breasts exposed.” Yet the California Supreme Court has just ruled that Kelley’s top less dance is entitled to First Amendment protection “like other forms of expression and communication.”

By a 5-to-2 margin, the court reversed a lower court that had convicted Kelley of indecent exposure for her performance at a San Pablo, Calif., nightclub. “The First Amendment,” said the justices, “cannot be constricted into a straitjacket of protection for political expression alone. It extends to all forms of communication, including the highest: the work of art.” Moreover, the majority pointed out, “the dance is perhaps the earliest and most spontaneous mode of expressing emotion and dramatic feeling.”

Transparent Cape. Was Kelley’s act a dance—much less art? She appeared on the stage wearing tights and a transparent cape, which she swiftly discarded. To be sure, she moved with music, including such tunes as The Swim and Walking the Dog. Reluctant to act as dance critics, the court majority said that any dance is automatically entitled to First Amendment protection unless the state can prove that it is obscene. Relying on U.S. Supreme Court doctrine, the California justices declared that the state had the burden of proving that the dominant theme of Kelley’s dance “taken as a whole appeals to a prurient interest,” is “utterly without redeeming social value” and affronts “contemporary community standards.” In fact, said the justices, the state had failed to introduce expert testimony to prove that Kelley’s act went beyond the community’s standards of decency.

As so often happens, the law in Kelley’s case was slow to catch up with the reality. In most California cities, topless dancers are now hopelessly oldfashioned. In one Los Angeles pool hall, the men around the tables hardly notice the topless dancer ten feet away from them. Many nightclubs are now promoting the “bottomless” dancer, who performs covered only by a G string, known as a “Band-Aid,” or, in the case of one San Francisco dancer, a gold heart from Tiffany’s that says “love” in six languages.