July 2013 - A Paean to Miss Wiggles

by Richard W. Millar, Jr.

Did you know that Miss Wiggles left this mortal coil recently at age ninety? I didn’t either. In fact, I didn’t know, or know of, Miss Wiggles in life. She has been described as “truly an exotic artist of physical self expression even into her eighties.” A picture of her in a full leopard-print outfit doing a head-stand on a chair, apparently in mid-wiggle, graces a federal district court opinion.
Erle Stanley Gardner, the creator of Perry Mason, always titled a book with The Case of . . . . While that was a good gimmick, it was hard to remember one title from another, and I often found myself buying one that I had read before. That said, The Case of the Purloined Purse is, without doubt, more enticing than, say, Smith v. Jones. Perhaps that is why Chief United States District Judge Biery entitled his opinion The Case of the Itsy Bitsy Teeny Weeny Bikini Top v. The (more) Itsy Bitsy Teeny Weeny Pastie! instead of the more prosaic 35 Bar and Grille v. The City of San Antonio.
As you might have guessed, the case involved a strip club, not the reality show What Not to Wear.
The city of San Antonio, known for the Alamo and, more recently, River Walk, passed an ordinance banning topless and nude dancing and required permits for, and I am not making this up, “human display establishments.” You’ve got to wonder about the dialogue that gives rise to such nomenclature, but I digress. 
At any rate, by way of further background, a group of these clubs challenged the law on free speech grounds and ultimately lost on the basis that going from complete to partial nudity was not a significant dampening of a dancer’s rights to expression—if that’s the right word. To avoid the ordinance, the plaintiff changed their dancers’ (lack of) attire to pasties and g-strings which enabled them to operate under a dance hall license avoiding the human display establishment moniker.
The city fathers became quickly attuned to this evasion and adopted a new ordinance eliminating the human display status and defining semi-nudity in a way that required dancers to wear at least bikini tops. Thus the issue devolved to the bikini top v. the pastie, and the plaintiff sought to enjoin enforcement of the newest ordinance. 
The case is interesting not because of its result—the plaintiff didn’t get an injunction—but because it is a wonderful illustration of the phrase “getting there is half the fun.”
The first paragraph set the tone:
An ordinance dealing with semi-nude dancers has once again fallen on the court’s lap. The city . . . wants exotic dancers employed by plaintiffs to wear larger pieces of fabric to cover more of the female breast. Thus the age old question before the Court, now with constitutional implications is: Does size matter?
The court further wrote that the plaintiffs “clothe themselves in the First Amendment” in an effort “to provide cover against . . . a naked . . .” power grab. They are worried that the ordinance “would strip them of their profits, adversely affecting their bottom line.” The city claimed that these clubs fostered crime, and, therefore, “need to be girdled more tightly,” but that plaintiffs “seek an erection of a constitutional wall . . . .”
In a footnote, the court referred to the city’s thousands of pages of reports dealing with sexually oriented businesses labelled throughout the opinion as SOBs.
For a moment, the court waxed Shakespearean: 
To bare, or not to bare, that is the question. While the Court finds these businesses to be nefarious magnets of mischief, the Court doubts several square inches of fabric will stanch the flow of violence and other secondary effects emanating from these businesses. . . . Alcohol, drugs, testosterone, guns and knives are more likely the causative agents than the female breast . . . .
And then there was my personal favorite: “While the Court has not received amicus curiae briefs, the Court has been blessed with volunteers in South Texas as ‘curious amigos’ to be inspectors general to perform on sight visits at the locations in question.”
Somehow, the curious amigos led to Miss Wiggles whom the court suggested they would have enjoyed far more than, presumably, the plaintiffs’ dancers.
In a sideways jab at those lengthy opinions we have seen too many times, the court attached “an Appendix . . . for those interested in a lengthy exposition, those who wish to appeal, and those who suffer from insomnia.”
The court’s parting shot was: “Should the parties choose to string this case out to trial on the merits, the Court encourages reasonable discovery intercourse as to navigate the peaks and valleys of litigation to reach a happy ending.”
Miss Wiggles would have been proud!  Shakespeare, not so much.


Richard W. Millar, Jr. is a member of the firm of Millar, Hodges & Bemis in Newport Beach.  He can be reached at millar@mhblaw.net.



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