Bare Knuckles and Bare Breasts

Forget talk of a settlement. Bachman Lake homeowners vow to fight their war against bare nipples to the bitter end.

For the most part, American courts have held that the message "Come and get it" is protected speech under the First Amendment. At the same time, the courts also have been consistent over the last 25 years in recognizing that neon-nudie striptease clubs tend to turn the areas around them into red-light districts and that communities have a right to resist that process.

The U.S. Supreme Court, with some stutters and stumbles, has been trying for 25 years to find some way communities can defend themselves against red-light districts without doing violence to the First Amendment. It is less an easy trick than we might think. If the dancing ladies in the clubs can't say, "I want to have sex with you," then the highbrow playwright can't say it either; Pavarotti can't sing it; the Bolshoi can't dance it; and presumably you can't say it in public, whether you mean to or not.

The law can't ban the message in naughty honky-tonk places and allow it in healthy, wholesome venues. If the message were banned everywhere, it's possible that gendarmes might come down the beach one day and warn you that your swimsuit has been saying it behind your back.

Mary Lou Zijderveld lives a mile and a half from the topless clubs--too close, she says, for her comfort.
Mark Graham
Mary Lou Zijderveld lives a mile and a half from the topless clubs--too close, she says, for her comfort.
Steven Swander is a First Amendment lawyer whose practice has included representing some of the Dallas topless clubs.
Mark Graham
Steven Swander is a First Amendment lawyer whose practice has included representing some of the Dallas topless clubs.

What the courts have looked for is a way communities can ban red-light districts without banning speech. Beginning with a U.S. Supreme Court decision upholding a Detroit ordinance in 1976, the courts have held that communities can protect themselves with so-called "content-neutral" ordinances--that is, laws that don't try to control what kind of messages people send each other inside the clubs but do try to prevent concentrations of clubs in any one area. The purpose is to combat precisely the red-light syndrome that besets the area around the 3000 block of Northwest Highway, where as many as seven topless clubs have been in operation at one time in the last three years.

There are two rules, according to the Supreme Court: 1) The ordinance must be content-neutral, and 2) The city must show that its goal is to protect the community from harmful "secondary effects," in other words, the red-light syndrome.

The problem is that a city can't ship the topless clubs off to the far corners or assign them to properly zoned areas until after it has said who they are. It can only say who they are by defining them according to what they do. And every time another new ordinance comes along to try to do that, the club owners go to court arguing: 1) that the new definition is a violation of the First Amendment, and 2) the city hasn't really proved any bad secondary effects it needs to undo.

It may be that no club-owning company in America has done better at this battle over the years than Dallas' own Burch/Northwest Entertainment Group, Inc. In fact, Burch has done better in court than the city has wanted to admit. In 1995, for example, after a former city attorney informed the city council that the city had prevailed in a major federal court decision, the council learned that the federal judge in the case actually had ordered the city to pay $213,417 in legal fees to the club owners and their attorneys--usually not an indication of victory.

But at this very moment, the activists and organizers and business people who have battled the Bachman clubs for better than a decade believe they've got Baby Dolls on the ropes. That's why the talk of settlement rankles them so badly.

"This is the endgame," Dickey said, surveying the parking lot outside Baby Dolls at 3 a.m. The cowboys and conventioneers had all disappeared. A breeze off the highway rolled an empty bottle, which clattered over the rough asphalt. "Why should we compromise now?"

Given where they are now in court, weeks away from a trial that might produce a final answer, Dickey's question seems fair. Why quit the marathon when you're 50 yards from the finish line and still have a shot at winning?

On the other hand, the clubs have been awfully good at moving the finish line. Dallas has been passing laws since 1986 to force the closing or dispersal of the clubs around Bachman Lake. Swander, one of several attorneys who have represented the clubs, can cite chapter and verse on how the clubs have resisted the new laws in court, but basically it always comes down to one thing--the definition of nudity.

"You can prohibit nudity based on secondary effects," Swander says. "Those statutes would include G-strings and pasties."

If the women wear G-strings and pasties, they're nude. Their nudity contributes to the rise of a red-light district around them. The community has a right to use zoning to prevent them from clustering.

So what the clubs have done, in order to stay open, is retreat to just within whatever is the working legal definition of nudity. Now, for example, the dancers wear bikini bottoms and pasties, not G-strings.

Swander explains the anatomical consequences if the owners of Baby Dolls lose the current round of litigation and thereby permanently lose their license to operate a sexually oriented business: Baby Dolls and other clubs would have to change their acts in order to stay open under a dance hall license, and the result, Swander says, would be a shift, "from bikini bottoms and pasties to full bikinis."

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