Incongruity at the High Court

By Ellie McGrath

Justices shield nude dancing, but not indigent parents

Like bookshelves and airline seating, court dockets can make for strange juxtapositions. Last week the Supreme Court handed down notable decisions that were as disparate as their subjects: while it held that the First Amendment protects nude dancing from being completely zoned out of a commercial area, it also ruled that the 14th Amendment does not automatically give poor parents the right to free legal assistance at parental termination hearings.

A Mantle for Nude Dancing

The nudie show can go on in Mount Ephraim, N.J., a small (pop. 4,863) bedroom community near Camden and Philadelphia. At the Six-Thirteen Corp. "adult bookstore," customers used to be able to pop a token worth 25-c- into a coin-operated machine, causing a shade to roll up revealing a nude dancer doing her bumps and grinds in a glass booth. But Mount Ephraim had a zoning ordinance that in effect banned all live entertainment, while allowing such commercial activities as restaurants, retail stores and beauty salons. In 1976 the bookstore and its operators, James Schad and Toni Taylor, were found guilty of violating the ordinance and fined $300. Although Schad and Taylor invoked First Amendment protection. New Jersey courts held that the case was strictly a zoning matter.

The Supreme Court disagreed. Entertainment, wrote Justice Byron White for six of his brethren in the seven-man majority, falls "within the First Amendment guarantee," as do political speech and ideological speech, and "nudity alone" cannot strip away this "mantle." Noted the court: "The zoning power is not infinite and unchallengeable." Nor was the court impressed with Mount Ephraim's justification for the ban--that it would avert parking problems and the need for additional police protection--since the town allowed a variety of other commercial enterprises. The ordinance was overly broad, said the court, in that it banned all forms of live entertainment but failed to show how such entertainment posed special problems to the community.

Chief Justice Warren Burger dissented in an opinion joined by Justice William Rehnquist. They argued that the majority opinion "ignores fundamental values that the Constitution ought to protect" and "trivializes and demeans" the First Amendment. Said Burger: "Citizens should be free to choose to shape their community so that it embodies their conception of the 'decent life' ... When, and if, this ordinance is used to prevent a high school performance of The Sound of Music, for example, the court can deal with that problem."

As nudie shows and adult bookstores have spread throughout the country, concerned municipalities have tried various ways to shut them down. Obscenity laws are usually either unenforced or unenforceable. In 1976 the Supreme Court upheld a Detroit zoning ordinance that required, among other things, that "adult theaters" be at least 1,000 ft. from any two other such moviehouses, thus preventing a concentration of sleazy premises in a "red-light district." Many towns saw the decision as a green light to shut down all "adult entertainment" or to try to relegate it to unprofitable locations. After the Detroit ruling, says New York University Law Professor Lawrence Sager, "communities were emboldened to convert zoning from a land use to a social engineering tool. This decision sends a warning."

It also brought a smile to Toni Taylor, 47, who still owns the Six-Thirteen. Taylor says she is considering putting the nude dancers back in action, but worries that the town may find a new way to stop the show.

Parents Beware

In the decades since the Supreme Court's landmark Gideon decision in 1963, states have been required to provide legal counsel for indigent criminal defendants facing prison terms. But last week the court ruled, 5 to 4, that this requirement applied automatically "only where the litigant may lose his physical liberty," and thus should not necessarily include indigent parents threatened with losing the right to their children. It was left to state courts to decide, on a case-by-case basis, whether a parent needs appointed counsel to obtain "accurate and just" results.

The decision turned on a case in which the state of North Carolina took custody of William Lassiter, eight months old, in 1975, because he was not receiving proper medical care. When his mother, Abby Gail Lassiter, was convicted of second-degree murder in 1976 and sentenced to 25 to 40 years in prison, the state moved to terminate her parental rights. At a 1978 hearing, the mother--without the help of a lawyer--argued that her son should live with his grandmother. She lost, and William is now living with foster parents. The court decided that even if Lassiter had been given an attorney, the outcome would have been the same, since her case "presented no specially troublesome points of law."

In an unusual move, Justice Harry Blackmun orally announced his dissent from the bench, calling the decision "incredible." Blackmun attacked the court's implication that being deprived of a child was less serious than being deprived of physical liberty. Said he: "Surely there can be few losses more grievous than the abrogation of parental rights." He noted that on the same day as the Lassiter decision, the court agreed in a separate case that a poor man charged in a paternity suit encouraged by the state has a due-process right to a free blood test to disprove his paternity. Blackmun acidly described the contrast between the two rulings as "not a little ironic."

Some 33 states and the District of Columbia guarantee indigent parents the right to counsel in parental termination cases, which often are instigated by a social worker who believes a child is being abused or neglected. How these states will interpret the court's decision remains to be seen. Says Marcia Lowry, director of the New York-based Children's Rights Project, an offshoot of the American Civil Liberties Union: "Without the right to counsel, these hearings are not going to be hearings." Furthermore, many of the lawyers appointed in these cases are funded by the Legal Services Corporation, an agency threatened by Reagan budget cuts.

With fewer legal aid lawyers to take such cases, experts fear that some of the 33 states may now decide to abolish the guarantee.

--By Ellie McGrafh. Reported by Evan Thomas/Washington

With reporting by Evan Thomas/Washington

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