What Is The Community Standard In Sexual Activities?

Nikki Gemmell is every Brit's image of the expatriate Australian: cheerful, direct, wildly outgoing and much, much too loud. Can she talk? She's unstoppable, punctuating herself with great squeals and peals of laughter. She was clearly born to be the life of the barbie; goodness knows how she can sit quietly at a computer writing novels all day.

Image, though, specifically keeps us from looking behind the surface of anything. And, in fact, not far below the laughter Gemmell is feeling so nervous that she has stopped sleeping at night, so nervous that she wants a glass of wine during our interview, even though it is only the middle of the morning.

And she has reason to be nervous, because her Australian directness means that with
the publication of The Bride Stripped Bare, her fourth novel, she has something of a scandal on her hands.

The scandal erupted last October at the annual Frankfurt Book Fair, when Gemmell's agent, David Goodwin, began showing people a frank, hungry book about a London housewife's secret sex life that had supposedly been sent to him anonymously.

It was hot stuff, albeit in a literary way. "And then he breathes you in gently and his tongue dips into you, it sweeps deeper and deeper and you didn't know you could ever get so wet." An episode with several taxi drivers in a hotel room is especially torrid. As the book fair packed up, the Daily Mail predicted The Bride Stripped Bare would be "the publishing sensation of the year".

The publishing sensation of the year was never going to be allowed to remain anonymous. Within the week, Gemmell and her husband found themselves holed up in their Notting Hill house at 11pm, pretending to be asleep, while a Sunday Telegraph reporter stood outside banging on the door. The following morning there was a note under the door that read: "We're running this story."

"At that moment, I knew I'd lost control of the book," says Gemmell. She considered withdrawing it. She and Goodwin considered letting it lie for a couple of years, then publishing under a different name. The publishers, however, were keen to go ahead; the American publisher, she says, is pushing to put her name on the front. But anonymity, she says, was central to the writing of The Bride Stripped Bare. It allowed her to be frank.

"I started out to write a book about sex within marriage, because I was interested in that," she says. "But I found I was censoring myself all the time. Pretty-fying everything; I wasn't being brutal and honest and brave enough. It felt like I was lying about myself even though it was fiction, because I was doing it to protect myself."

Gemmell, 36, is married to Andy Sholl, a public relations consultant she met when they both worked as journalists at the ABC. They went out for a year when they were in their 20s, remained friends, then were reunited when she came to London, remaking her life after a bad break-up. He met her at the airport and, she says, "it just seemed right". They were duly married; now they have two sons under three. You can see why she needed to lose her identity, as respectable and maternal as it is, to write The Bride Stripped Bare.

She had found a good precedent. The Bride Stripped Bare is framed around a book called Woman's Worth, a description of married life written - anonymously - in the 17th century, that Gemmell found in the London Library.

"This woman had said incredibly subversive things, really naughty stuff like if a wife is unfulfilled in the marriage bed she should be free to take a sexual partner. I was fascinated. And I thought the key to the woman's boldness and bolshiness was anonymity. I imagined her as being a very good, obedient wife and that her husband had no idea she was doing this."

In a sense, The Bride Stripped Bare is an answering text, an echo from down the centuries. Gemmell, too, sees herself as a good wife, a woman who likes to oblige; she would certainly prefer not to be doing this interview, but here we are.

"There is a line in the book, what is this stubborn need to be liked? And ever since I've been a little girl, I've done what I'm told. In my work situations, my marriage to some extent, with my family, I've always been the good girl. I was dux of the school. But perhaps my adulthood and my writing are a way of shouting, 'No! This is who I am!"'

She was afraid of writing after her first son was born; becoming a mother somehow sapped her confidence. At the same time, she needed it.

"My life is so taken up with fulfilling the needs of everyone around me that writing is the only time in my life that is purely selfish, purely me. I've needed writing in the last couple of years to still me."

It was also purely pleasurable, because nobody was expecting a novel from her. Her agent and publishers, she says, had "written her off" for the next few years. Even her husband thought she was just tinkering at first. She was a new mother with no nanny or grandparents to help. She had her hands full.

But babies sleep, so she could write then. Her style changed to fit into these snatched moments: short chapters, punchy sentences. "I no longer have the luxury of doing a lot of drafts. I have so much in my head in terms of babies - exhaustion as much as anything - I could not keep a complicated narrative there as well. And I guess it's the no-bullshit factor, becoming more confident as a writer. I didn't want to be as laboured and tricksie. I didn't have time for that."

And since nobody knew she was writing it, if it didn't work, she reasoned, it could find a spot in a bottom drawer and never emerge. As much as anything, anonymity was a protection against failure.

The exposure turned her life upside down. She was, she says, "completely traumatised". Her hair has begun to go grey.

Worst of all, it affects everybody close to her. As soon as The Sunday Telegraph had come calling, she knew she would have to ring her parents in Australia and apologise in advance for whatever intrusions or embarrassments might be about to befall them.

Their responses, however, surprised her. Her father, a former miner who now delivers milk, has never acknowledged her writing or read any of her books. "Which is fine. But it was really hard to ring him in Newcastle at an ungodly hour and say I've done this thing and I'm so sorry." She said if a journalist rang, to simply say he couldn't comment and hang up.

"And he said to me, 'Darling, is it all right if I just say I'm so proud of her, and then hang up?' and I thought wow! That is the first time he's ever said that to me. Mum on the other hand, when I rang her, was so excited by the fact it is going to be an erotic novel. She keeps saying, 'When can I get it?"'

Gemmell's husband knew she had written a book she wanted to keep anonymous, but he had not read it. That isn't unusual. "He's Wodehouse and John Mortimer, he's not into my kind of books," she says. "He's read a bit in the past and said, 'It's all about your past relationships: I just don't want to know.' And I can argue 'til I'm blue in the face and he says, 'I don't want to know, I'm not interested.' And I thought with this one it could just pass him by."

But he had read it, just a couple of days before our interview. It cannot have been easy. The husband in The Bride Stripped Bare is a decent bloke in many ways, but utterly oblivious to his wife's sexual discontent. He seems unaware that she has never had an orgasm, so it is hardly surprising that he doesn't realise she is having an affair.

"Two things stand out to me in his reaction," she says. "He said, 'I'll hold this over you for the rest of your life.' And he also said, 'You're in big trouble'.

"So you have caught me very raw. He's still talking about it this morning and he read it two days ago. Basically, we can't have a conversation without him referring to taxi drivers. But that kind of stuff is surface. I don't want to say anything about private things."

When the book is published, they will be on holiday in a seaside cottage, "doing family things, playing on the sand". Regrouping. That is the most important thing now.

Writing was once the centre of her life; she used to think that if she had to choose between a relationship and getting a book out, the book would win. "That is what I'd been like about writing. With motherhood, I've pulled back. I know it's healthier, but I don't care about it in the way I used to."

She talks of "ripping herself apart" to write and then edit the book, but she also drew on others' experiences. Early on, she sent emails to 15 women, friends in several countries, to ask them for just a couple of lines about what they liked and disliked in sex.

"I just wanted to see whether I was on the right track; I wanted something women could read and think that's me, or that perhaps men would read and think, 'Oh my God, is that my wife?"'

Screeds came back. She was surprised, she says, to find that several said they hated their breasts being touched. She does, but she just thought she was strange. "I just thought how interesting, that something I thought was weird in me was actually more universal."

Her editor then worried that the book lacked joy; for a book about sex, it was terribly grim.

"I found that really hard," Gemmell says. "There were about three specific instances throughout my life when I could remember particularly joyful sex. I thought, 'God, am I really weird?' So I went back online and said, 'More fun!' And it was funny. No one replied. Except for one; she made up for all 15 of us. Thank God for her."

In a sense, all Gemmell's books have followed the same path as The Bride Stripped Bare. They all feature a wayward woman - Snip hairing across country in her ute in Cleave, loner Lillee with her love of fires in Lovesong - who redefines herself in the alembic of sexual love. When I suggest that, as a good girl, she writes about bad girls, she bridles immediately on behalf of the bride she has stripped bare.

"I don't know that this woman is bad. She does something that feels absolutely right and true to herself, which may be interpreted as a bad thing, but she feels liberated by it and feels as if she is living for the first time in a long time."

But I am not, she admits, the first person to say that she is in all her characters. That is certainly true this time. "I can hide myself well, I guess, which is another point of the book. I've been hiding myself my whole life and this is a way of not hiding myself."

The next book, though, will be completely different. "All this stuff is out of the window. Two little boys are the protagonists."

I roll my eyes, nod at the toys on the floor and that curling shriek of laughter comes again. "I know! I know! But their older sister is in it too," she protests. The point is that she is moving right away from sex. "In a lot of ways," she says, "I feel I want to cleanse myself."

The Bride Stripped Bare is published by Fourth Estate next week at $24.95.

NIGHT LIFE
The last lap?
Dancers say a ban wouldn't stop sleaze, just freedom of expression.

The performer who calls herself Kitty has shaken a lot of tail-feathers in her time. She's worked the circuit of L.A.'s big strip clubs — Cheetahs, Spearmint Rhino, right up to her current employer, the Rio — and she's relied on nude dancing and lap dancing to see her through a teenage pregnancy, a rough divorce and the perils of single parenthood.

"Dancing and lap dancing also paid for my breast implants," Kitty says with understated pride. She even remembers the bad old days, 15 or so years ago, when "the only place you could go for a lap dance was Gardena." The tackiness! The tackiness!

But now Kitty — who, like most nude dancers, prefers to be identified only by a first or stage name — is struggling to find a sufficiently ladylike term to describe her feelings about a proposed L.A. City Council ordinance that would ban lap dancing from the city of fallen angels. In the most sweeping revision in decades of city codes governing adult businesses, the city is proposing to severely restrict what qualifies as legit behavior in L.A.'s estimated 200 adult cabarets, video arcades and other X-rated establishments. A council vote could come as soon as today.

And while it's not the only activity that would be curtailed under the new law, lap dancing is perhaps the most conspicuous and controversial. Talk radio hosts and a club attorney have railed against the proposed ordinance, while some city officials argue that lap dancing over the years has degenerated into a de facto form of prostitution.

"I think that's a crock," Kitty says. "The majority of us are not prostitutes. I've been clean and sober for years. Don't get me wrong — there's always a bad apple in the bucket. But most of the women are like me. That goes for pretty much every girl here."

Still, the question flickers like dry-ice fumes reflected in a twirling mirror ball: Is lap dancing a harmless act of flirtation between middle-aged men and young women who get paid to listen to them gab about their unsympathetic wives and dead-end jobs while persuading them they're God's greatest gift to the fair sex since Brad Pitt?

"I thought it was going to be really horrible, just like you read in all these articles," says Madison, a tall, blond, ironic Texan who matriculates at one of L.A.'s top universities. But that was before she started moonlighting as an exotic performer at the Silver Reign in West L.A. Instead, she says, her profession is "easy, it's really fun — just talk to the guys, take their minds off work and stuff. It kind of makes me feel good."

OK, but is shimmying up and down a customer's legs or loins, as defense attorneys have asserted and courts around the country have upheld, a form of free speech protected by the 1st Amendment, a means of artistic self-expression?

Is lap dancing even a kind of Florence Nightingale devotion, as suggested by one 23-year-old stripper who told the city's Public Safety Committee last week that among her regulars is an 85-year-old widower who visits often to lie with her on a bed in her club's "VIP" room? "We cuddle," she testified. "You should be able to reach out to somebody when they're needy."

Or is lap dancing, instead, as the moral custodians claim, an insidious charade, a flimsy G-string seeking to conceal far graver sins of the flesh and the soul?

What really goes on in those other-side-of-the-tracks places with bouncers built like NFL linebackers and mood lighting dimmer than a dungeon's? What really takes place behind those gauzy curtains and chest-high partitions? What is lap dancing?

Bump-and-grind defined

Working definitions of lap dancing are hard to come by in most dictionaries. But a simple one, culled from various sources, might be: when an employee at an adult venue uses one or more of his or her body parts, clothed or unclothed, to touch one or more of a patron's body parts, clothed, while dancing on the premises. In theory, this can mean anything from straddling and lightly brushing a seated patron's kneecaps to grinding into his pelvis (we'll assume it's a he) with the vigorous squat-thrust motion of a Cossack performing for Czar Nicholas II.

Depending on the dancer's inclinations, the club's protocols and the number of undercover cops casing the joint that night, the patron may respond by (1) sitting as stiff and expressionless as a mummy until the song ends, then getting up, forking over a couple of dead presidents and walking away without exchanging so much as a single word; (2) ardently participating in the action; (3) some combination of 1 and 2. Most of this is negotiable, depending on the price.

The authoritative Web site Z Bone Zone lists an entire glossary of lap-dance-related terms, including "lapsidasical" ("an uninspired lap dancer"), "mileage" ("a measure of the nasty factor of a lap dance"), a "Janet Jackson" (so named for a famous Rolling Stone magazine cover in which the R&B singer appeared with an anonymous pair of hands covering her breasts), and the "Stevie Wonder," i.e., involuntary head motion from left to right as a customer's eyes move to beat of the dancer's bare breasts.

The lap dance is also known as the "straddle dance" or, in one variation, a "face dance." (Look, this story can't spell out everything for you.)

Work life at the Rio

It's business as usual on a weekday night at the Rio, a swath of escapist fantasy on an industrial corridor off the Harbor Freeway. Inside, half a dozen men chat quietly at small tables with young women wearing bikinis, navel rings, high heels and not much else, while a DJ works the crowd with glib banter and aggressively upbeat pop tunes.

In one dark corner, a young man with a shaved head sits in a small booth staring blankly ahead while a topless female hovers above his legs, twitching to the throbbing backbeat. Overhead, a video camera watches the pair as the moment subsides and they stand up and silently go their separate ways.

In a cramped back office, club owner Max Amadi takes in the scene on a television monitor while keeping up a running commentary on the do's and don'ts of nude dancing etiquette. A dead ringer for Joe Pesci — "a lot of people say I look like him" — the Iranian-born Amadi says he instructs his "girls" to seduce male customers with their brains as much as their bodies — or words to that effect. "Your job is to arouse them, to sweet-talk them and to get paid $25 or $30," he tells them.

Claudia, a Rio dancer, says some customers get the wrong idea and ask, How much for sex? "I get so tired of hearing that," she says. "Sometimes it's like, 'You again?!' " Most of these requests come from men whose first language isn't English, she says, and if they keep it up or violate the club's "no touching" rule, the bouncers know how to deal with them.

L.A.'s proposed ordinance would ban lap dancing and entertaining in secluded "VIP" rooms, prohibit customers from touching strippers or tipping them directly and oblige them to stay at least 6 feet away from each other. The ordinance also spells out a long list of prohibited sexual activities ("actual or simulated") at adult clubs, some familiar, others obscure and several with five or more syllables and nearly unpronounceable Greek names.

City officials say the new codes are intended to curb unsavory and, in some cases, illegal "secondary effects" resulting from such businesses, such as prostitution and drug use. Club owners also would be required to renew their police permits every year.

"The current police permitting process, it's so outdated," says Councilwoman Cindy Miscikowski, chairwoman of the council's Public Safety Committee. L.A. lawmakers, Miscikowski says, aren't trying to get rid of adult establishments; they're simply trying to control what goes on inside them.

"There is a place for them," she says, but there's been "a burgeoning growth of them in this city and elsewhere, and we need to bring them more back in line."

But Amadi and other club owners see the city's efforts as a puritanical crusade better suited to a backwater burg than a famously freewheeling metropolis, home of the Playboy Mansion and the U.S. porn industry.

"If the real concern was the prostitution, obviously a lot more happens on the corner of Figueroa than will ever happen in here," Amadi insists. "There's too much at stake for it ever to happen here."

That line is pretty much standard among club owners. But it's hardly reassuring to some residents who live near certain clubs, who say they've found spent condoms and observed public gropings outside them, or to the LAPD.

"You came at a good time. We've got the police in here," says Stanley Yang, owner of the Silver Reign, a West L.A. club around the corner from a giant Ralphs supermarket, several mid-size office towers and a local television station. Three undercover cops, Yang tells a visiting reporter, have been checking out the club since earlier in the evening. "We're not supposed to know," he says dryly.

One young dancer, Honey, taking a cigarette break in a back room, says it "would kill" her if the city ordinance passes. With a daughter (age 6) and a son (age 5) to support, she says she counts on the extra money she gets from lap dancing to make ends meet.

"I was homeless since I was 15," she says. "I used to sleep on the sidewalks. I'm a smart girl, but I don't know how I'd get a regular job."

Another dancer approaches Honey.

"Can I ask you a question?" the dancer says. "Where did you ... ?" The woman points toward Honey's breasts, apparently a kind of nude-dancer semiotic device for denoting artificial implants. Unfazed, Honey mentions a top local plastic surgeon. The other dancer is impressed.

"Oh, he's really good," Honey says. "He's like a surgeon to the stars."

A door opens, and a man in a dark suit tells Honey it's her turn to perform. That's the other thing about lap dancing, Honey explains. A good implant job costs about $7,000. It's hard to make that kind of money just swishing around on a stage from 6 feet away all night.

Is there a societal shift?

But it may take more than Hollywood-grade artificial pecs to save lap dancing in L.A.

At the Classic Lady of Oz (formerly Bob's Classy Lady) in the northeast Valley, a sign near the entrance reads: "No Alcohol, No Drugs, No Barefeet, No Tanktops, No Colors," next to which someone has scrawled the word "Gang." The midnight hour has come and gone, and the few remaining customers are drifting out into the cool night.

Inside an office lined with adult videotapes, owner Jonathan Henry, 33, a handsome, laid-back married man with an 18-month-old son, admits that business has been "kinda slow" lately. Partly it's the sluggish economy, he says, but he thinks a more complex social change has occurred in the last couple of years.

"With the way the world is going, I guess people are more Bible-conscious," Henry says, forcing a smile.

A dancer pokes her head in and asks if she can leave because there's only one customer left. Give it till 1 o'clock, advises her boss, then we'll all go home.

Henry says he still has big dreams for the Classic Lady of Oz. He's enthusiastic about the once-a-month customer appreciation days, and he was stoked about last week's Father's Day party, with free lap dances for all those hard-working breadwinners out there. He wants to restore the venue to "the good old days, when it was the most talked-about club" in Los Angeles.

Getting ready to lock up for the night, Henry wanders past the main stage, big enough to hold five dancers at once, and the themed décor of fake rocks suspended from the ceiling, spooky-looking trees, a suit of armor and a ceiling limned with a moon and tiny stars. In the background, the Temptations are singing "Papa Was a Rollin' Stone."

Henry, who's been chattering away about his plans, halts and pauses, as if remembering something he'd wanted to get off his chest for a long time. "Everybody automatically assumes that dancers are nasty," he says softly. "But they are normal people. They have everyday problems.... People just have to understand they're people."

This page contains a selection of court decisions that relate to Naturist causes. They are arranged according a few different categories.

List of Cases

Topfree and Equal Protection

Ohio

In Ohio, the public indecency statute, Section 2907.09, prohibits the exposure of ``private parts''. The two Ohio court decisions confirming that breasts are not private parts are State v. Parenteau and State v. Jetter.

Here's an even earlier Ohio case, Cincinnati v. Wayne, (1970) in which a woman was acquitted on appeal for wearing pasties on a Cincinnati street. The ordinance in question said that a person could not expose his person, and, of course, his does not apply to a woman.

New York

In New York State, their highest court (which is called the Court of Appeals), ruled in People v. Santorelli that their "Exposure of a Person" law, 245.01, did not apply to the exposure of a female breast, even though, on the face of it, it clearly does. This was a 6-0 decision. The majority opinion (with 4 Justices), jumped through a bunch of legal hoops trying not to rule on Equal Protection grounds. The concurring opinion (with 2 Justices), said that it clearly was an Equal Protection issue, and that the State failed to make its case for discrimination against topfree women.

In 1998, the U.S. 2^nd Circuit Court of Appeals took a dim view of Equal Protection as applied to the zoning of topless dancing establishments. In Buzzetti v. City of New York, a unanimous court (3-0) said that since society, rightly or wrongly, still views women's breasts as sexual objects, it was OK to discriminate based on that. Scary! This ruling does not affect Santorelli, which dealt with non-commerical topfreedom, but has some juicy quotes that will probably cause problems in future cases. This is another case of mere nudity getting entangled with erotic rulings.

Florida

In Florida, with Moffett v. State, the Florida Supreme Court ruled way back in 1976 that topfree violated the state's disorderly conduct law, 877.03. This was a 4-2 decision. There were 3 justices with the plurality opinion, 1 justice concurred in result only (he agreed with the result, but not the reasoning) but did not write an opinion, and there were 2 justices with the dissenting opinion.

They did it again in 1986 with McGuire v. State, but this time, not with the disorderly conduct statute, but with an Administrative Rule, which, to my eyes (and to the dissent), is completely vague. It's as if they had decided that topfree ought to be against the law, and, by golly, they were going to make it so. This was another 4-2 decision. There were 4 justices with the majority opinion, and the two dissenting justices each wrote an opinion: Adkins, Shaw.

However, in a recent ruling, Kayla Sosnow's disorderly conduct conviction for going topfree in the Osceola National Forest was overturned in Sosnow v. State since, first, there was no complainant besides the police officer, and second, that disorderly conduct must be more than a "mere annoyance".

Regarding full nudity, back in 1971, the Florida Supreme Court ruled that the indecent exposure statute, 800.03 required that the exposure be lewd. (This is reflected in the current Florida Jury Instructions.) In 1993, Wendell Simpson (of the Canaveral National Seashore) tried arresting nude beachgoers using that statute under federal concurrent jurisdiction. He claimed that he was allowed a separate, federal interpretation of the law. This was shot down pretty convincingly in United States of America v. A Naked Person Issued Notice of Violation No. P419490.

Virginia

U.S. v. Biocic, a case from 1991, does not support topfree rights. This ruling was from the 4^th Circuit Court of Appeals, with a 3-0 ruling. There was a majority opinion (with 2 Judges), and a concurring opinion (with 1 Judge). This appears to be a poorly argued case.

VMI

In June of 1996, the United States Supreme Court ruled in United States v. Virginia that the Virginia Military Institute (VMI) had to admit women. While not a topfree ruling, it is extremely important for women's rights, and has topfree implications. What the ruling did was change the legal standard under which gender-based discrimination is allowed. It used to be that it was OK if it served an ``important governmental objective''. (In other words, you could discriminate against women if you could come up with a good reason--blech). Now, under the new ``heightened review'' standard, gender-based distinctions must have an ``exceedingly persuasive justification''. This moves the standard much closer to the ``strict scrutiny'' that is used in race-based distinctions.

This was a 7-1 ruling. There were 6 justices with the majority opinion. Chief Justice Rehnquist wrote a separate concurring opinion, in which he objected to the new standard, but agreed with the result. Justice Scalia wrote a scathing dissenting opinion. Justice Thomas recused himself (did not vote), since his son goes to VMI.

Private Parts

Many states (see the State Law Summary for details) say that you may not expose your "private parts". There have been a number of court cases that clarify that "private parts" means genitals only, and one that includes buttocks as "private parts".

The original ruling came from North Carolina. There, way back in 1970, the North Carolina Court of Appeals ruled in State v. Jones that breasts were not private parts. It was a unanimous decision. This case has been extensively cited since.

There have been some recent developments in North Carolina. Mark Edward Fly was arrested in 1995 under the same statute for mooning somebody. Once again, the North Carolina Court of Appeals ruled that "private parts" means genitals (and the buttocks are not genitals). This time, however, it was a 2-1 decision (with the dissenting judge essentially ruling the way he did because he thought it ought to be illegal, despite what the law said). That case is State v. Fly (1). It has been appealed to the North Carolina Supreme Court, and a ruling is expected in late 1998.

The dissent in State v. Fly (1) cited a Virginia Court of Appeals ruling that said that buttocks ARE private parts, Hart v. Commonwealth of Virginia. That was also a 2-1 decision. They came to their conclusion by looking at definitions of other words in other parts of the Virginia code, and deciding that because those definitions included buttocks, so ought "private parts".

The North Carolina Supreme Court made their ruling in July, 1998. What a convoluted decision, because it looks like they pretty much pre-determined that they wanted to get this guy. But, on the other hand, they didn't want to criminalize the thousands of thong wearers on North Carolina beaches. So, they got creative and decided that he had exposed his genitals. Nobody saw them, since they were pointed in the opposite direction, but they nonetheless were exposed in the presence of a member of the opposite sex. Talk about judicial activism. Anyways, read it yourself in State v. Fly (2).

Elements of Public Indecency

For someone to be be convicted of a crime, all of the elements required for the crime must be there. If any one of the specified elements is missing, the person is supposed to be acquitted.

Expose

One of the elements that has to be proven is often that somebody "exposed" their genitals or private. We saw in State v. Fly (2) above, that creative definitions are sometimes used.

Recklessness

In many states, public indeceny require that the person "recklessly" expose themselves. Recklessness is a state of mental culpability (what you or I would call "intent") that is defined in each state's statutes. Generally, it is a level of intent that falls between "negligently" and "knowingly".

Recently, in Texas, David Lacour was acquitted of Disorderly Conduct. [Note, in Texas, Public Indencency requires intent to gratify sexual desire. However, their Disorderly Conduct statute covers simple exposures.] The Disorderly Conduct requires exposure of genitals and that the person be reckless about whether another may be present who will be offended. In this case, the Court of Appeals for the Ninth District of Texas, in Lacour v. State, ruled that Lacour, on a remote stretch of Texas beach, was not reckless.

There is an Ohio case in which Jack Leatherman, Duane Miller, and Robert Rhodes were convicted of Public Indecency since they were swimming nude at a pool late at night, and nearby neighbors could see him. In State v. Leatherman they lost their appeal in the Ohio Court of Appeals. They appealed up to the Ohio Supreme Court, which declined to hear the case. Miller then went to the Federal Courts, and up to the Sixth Circuit Court of Appeals. In a 2-1 decision, they ruled against him, in Miller v. Barberton. Interestingly, the dissent made the case that Miller was negligent, not reckless, and therefore should not have been convicted. The only saving grace in this decision is that, in order to overturn the conviction, the court would have had to find that "no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." More competent counsel earlier on might have given a different result.

Miller v. Barberton cited another case, State v. Goldsmith in which Marshall Goldsmith was acquitted on appeal for exposing himself behind some bushes. The court ruled that, since the only persons who could see him had given consent, and that he could not be viewed by others, the public indecency statute had not been violated.

Lewdness

The Ohio public indecency law requires the reckless exposure of the private parts. However, in a 1996 case, Cleveland v. Pugh, Charles Pugh was acquitted (on appeal) of public indecency for urinating in a public place. Even though his private parts were exposed, there were legislative notes from when the bill was passed. These make it clear that public indecency does not apply to something like public urination (which falls instead under Disorderly Conduct, and it only falls under Disorderly Conduct because of the offensiveness of the urine). Public indecency is a "sex-crime" in Ohio. This establishes that public urination is not a sex-crime. Based on this case, and the condition of being a sex-crime, It may be that lewdness is required element in Ohio, but this has not been tested.

Due Process

Both the 5th and 14th Amendments contain ``due process'' clauses. Generally, these have been interpreted to mean that the government must have a ``rational basis'' to its laws, that is, that laws must be rationally related to a legitimate governmental interest.

In Florida, DeWeese v. Town of Palm Beach overturned an ordinance that required all joggers in the town to wear a shirt, finding that there was no ``rational basis''. The court was the 11^th Circuit Court of Appeals (one step below the U. S. Supreme Court). One could argue (though no court has ruled on those grounds) and anti-nudity laws also have no ``rational basis''. However, court also rule that regulating ``morality'' does have a ``rational basis'', and that nudity is part of morality, so this path would have a tough row to hoe.

First Amendment

First Amendment issues always seemed to be intertwined with nudity issues. First, there are those who say that nudity is expressive conduct, and thereby protected by the First Amendment. Unfortunately, no court has yet agreed with that view. Second, ordinances and laws that seek to prohibit nude dancing (as in nude or topless bars) often manage to hit simple nudity (such as naturism) in their crossfire. Usually, these ordinances don't care who else they hit--they just see any nudity as iniminal to ``family values.'' However, unless they are narrowly written, they can fall to First Amendment concerns.

As you might imagine, this mixture of opinions has led to much continuing confusion. In cases such as Barnes with fractured opinions, the opinion that counts is the one that rules on the "narrowest" grounds. Most subsequent cases have decided that Justice Souter's opinion is the most narrow. Thus, regulation of topless/nude dancing establishments is allowed when combatting the ``harmful secondary effects'' of the nudity (but not the expression).

There are now a bunch of post-Barnes decisions that rely on Barnes. Some uphold an anti-nudity law; some overturn an anti-nudity law.

Triplett Grille, Inc. v. Akron (1994), from the 6^th Circuit Court of Appeals, overturned Akron's anti-nudity ordinance, since that law had no limiting construction protecting First Amendment rights.

Cafe 207, Inc. v. St. Johns (1994), upheld the anti-nudity ordinance of St. Johns County in Florida. This ruling was from the United States District Court in Jacksonville, Florida, but it was upheld by the 11^th Circuit Court of Appeals (Cafe 207, Inc. v. St. Johns (1995)), and then denied cert. by the Supreme Court. That ordinance had explicit First Amendment exceptions.

In Wisconsin, a Western District of Wisconsin ruling, Schultz v. Cumberland (1998), overturned an ordinance regulating "sexually oriented businesses" on overbreadth grounds (it had no exemptions for non-adult theaters).

Erie v. PAP's A.M. is currently before the U.S. Supreme Court. This is a case from Erie, PA, in which the Pennsylvania Supreme Court overturned an ordinance 6-0. Four of the six justices, in the majority opinion, did so trying to follow the Barnes ruling--the other two, in a concurring opinion, said that it was unconstitutional because it violated the Pennsylvania Constitution, which provides greated free speech protection than the federal one.

The City of New York undertook to zone adult entertainment establishments. The definition of such establishments under the ordinance depends in part on employees' or performers' regular exposure of "specified anatomical areas," including the female breast. Plaintiffs sued for a declaration that the regulation violates free speech and equal protection. The district court dismissed.

Ivan S. Alter, New York, N.Y. (Alter & Alter, New York, N.Y.), for Plaintiffs- Appellants.

Elizabeth S. Natrella, Assistant Corporation Counsel of the City of New York, New York, N.Y. (Paul A. Crotty, Corporation Counsel of the City of New York, Leonard J. Koerner, Albert G. Fredericks, Assistant Corporation Counsels of the City of New York, New York, N.Y., Of Counsel) for Defendants-Appellees.

Plaintiffs Adele Buzzetti, doing business under the name of her cabaret, Cozy Cabin, which features topless female dancers, and Vanessa Doe, a topless dancer (using a fictitious name for the purposes of this suit), appeal from the dismissal of their complaint in the United States District Court for the Southern District of New York (John S. Martin, J.) seeking declaratory and injunctive relief against the enforcement of a New York City zoning ordinance. The ordinance regulates the permissible locations of commercial establishments featuring various forms of adult entertainment. The plaintiffs argue that because the ordinance applies to female topless entertainment, but not to male topless entertainment, it violates both the First Amendment's Free Speech Clause and the Fourteenth Amendment's Equal Protection Clause. We affirm.

Prior to November 1994, New York City's zoning law did not distinguish between adult entertainment and other commercial establishments. In late 1993, the Department of City Planning (the "DCP") undertook an "Adult Entertainment Study" (the "DCP study") to help the City Planning Commission (the "CPC" or the "Planning Commission") determine whether, like many other municipalities, New York City should adopt zoning regulations directed at adult entertainment establishments. This study was completed in September 1994. The DCP study included both a survey of numerous studies undertaken elsewhere--including Islip, New York; Los Angeles, California; Indianapolis, Indiana; Whittier, California; Austin, Texas; Phoenix, Arizona; Manatee County, Florida; New Hanover County, North Carolina; and the State of Minnesota--and an examination of the nature and effects of adult entertainment establishments in New York City. With respect to New York City, the DCP study referred to previous studies of adult entertainment establishments conducted by other organizations, including an August 1993 Chelsea Action Coalition and Community Board 4 study and an April 1994 study by the Times Square Business Improvement District, as well as to testimony taken at an October 1993 public hearing held by the Borough of Manhattan's Task Force on the Regulation of Sex-Related Businesses. In addition, the DCP conducted its own survey of adult entertainment establishments in New York City, focusing principally on three types of establishments: adult video and book stores, adult theaters, and topless or nude bars.

Based on these sources, the DCP study concluded that adult entertainment constituted a serious and growing problem in New York City. It noted that studies from other cities had documented numerous "negative secondary impacts" of such establishments, including "increased crime rates, depreciation of property values, deterioration of community character and the quality of urban life." DCP Study at 67. These effects were consistent with the experience of those areas of New York City marked by high concentrations of adult entertainment establishments, the study concluded. Even in areas where adult establishments were not heavily concentrated, residents, businesses, and community leaders feared the consequences of possible future proliferation. The DCP study found that there had been a sharp increase in the overall number of adult entertainment establishments in New York City in the previous 10 years, including a 26 percent increase in topless/nude bars. The DCP therefore recommended special zoning restrictions on adult entertainment.

In November 1994, the New York City Council approved a one-year interim zoning moratorium on the opening or enlargement of adult establishments. In March 1995, the DCP and the New York City Council Land Use Committee filed a joint land use review application to amend the city's zoning law to establish permanent zoning regulations applicable to adult establishments. After receiving comments from the city's five borough boards and 39 community boards, and after holding its own public hearings, the CPC approved the proposed permanent regulations on September 18, 1995. Based on the DCP study, other reports, and public testimony, the Planning Commission concluded that there were "substantial adverse secondary effects stemming from the location and concentration of adult uses" in New York, including "the negative impact adult establishments have on economic development and revitalization; their tendency to decrease property value, thereby limiting tax revenue; [the] impediment [created] to economic activity; their tendency to encourage criminal activity, particularly when the establishments are located in concentration; the proliferation of illegal sex-related businesses; their damaging impact on neighborhood character and residents including children; and the costs associated with maintaining and patrolling areas." Following additional public hearings, on October 25, 1995, the City Council approved the permanent restrictions, effective immediately. It is this set of permanent zoning restrictions ("the Zoning Amendment" or "the Amendment") that are at issue in this case.

The Zoning Amendment does not forbid the operation of any category of business. Instead, it restricts the areas in which certain sexually-oriented businesses may operate. The Zoning Amendment's regulatory scheme applies to all "adult establishment[s]," which is defined to mean a commercial establishment, a "substantial portion" of which is used as: an "adult book store," an "adult theater," an "adult eating or drinking establishment," or some "other adult commercial establishment" (or some combination of these). Zoning Amendment, §12-10. Businesses fall into one of these categories of "adult establishments" if they "regularly feature" or devote a "substantial portion" of their business to entertainment or material emphasizing "specified anatomical areas" or "specified sexual activities." Id.

Based upon these definitions, the Zoning Amendment regulates the locations at which adult establishments may operate. In addition to the general ban on commercial establishments in residentially-zoned areas of New York City, the Amendment completely forbids adult establishments from operating in certain other specified areas of the city. See Zoning Amendment, §§ 32-01, 42-01. Moreover, in those areas where adult establishments are permitted to locate, the establishments, subject to certain exceptions, may not be located within 500 feet of any school, day care center, or house of worship, nor within 500 feet of the edge of most residential areas. See id. In addition, to prevent concentration of adult establishments, the Zoning Amendment generally provides that no adult establishments may be located within 500 feet of any other adult establishment. See id. A one-year transition period (with the possibility of additional extensions of time) is provided for non-conforming adult establishments existing at the time of enactment of the Zoning Amendment.

On October 10, 1996, the plaintiffs-appellants filed a complaint alleging that the Zoning Amendment violated the Equal Protection Clause and the First Amendment, and sought injunctive and declaratory relief on that basis. The complaint alleged that Buzzetti's cabaret, Cozy Cabin, which regularly features barechested female dancers, would be economically unable to relocate as required by the Zoning Amendment and therefore would be forced to close. In addition, the complaint alleged that plaintiff Doe is a topless dancer, and that the Zoning Amendment will restrict her ability to earn a livelihood, as well as her ability to express herself through her dancing.

The district court denied plaintiffs' motion for a preliminary injunction, finding that they had not demonstrated a likelihood of success on the merits of their constitutional claims. See Buzzetti v. City of New York, 96 Civ. 7764, 1997 WL 164284, at *6 (S.D.N.Y. April 8, 1997). Relying on Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S. Ct. 2440 (1976) and City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S. Ct. 925 (1986), the district court determined that the New York ordinance was not viewpoint-discriminatory, but rather constituted "a content-neutral time, place, and manner regulation" and, as such, passed constitutional muster if it "'is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.'" Buzzetti, 1997 WL 164284, at *3 (quoting Renton, 475 U.S. at 50, 106 S. Ct. at 930). This test was met because, the court found, New York's "interest in preventing crime, maintaining property values, and preserving the quality of the city's neighborhoods is both important and substantial" and "the Zoning Amendment also provides for reasonable alternative avenues of communication in numerous zoning districts throughout the city." Id. The district court also concluded that the Zoning Amendment did not run afoul of the Equal Protection Clause as "gender-biased." The court noted that the ordinance was aimed at the secondary effects produced by adult entertainment, and "in our culture the public display of female breasts will have far different secondary effects than the public display of male breasts. Rightly or wrongly, our society continues to recognize a fundamental difference between the male and female breast." Id. at *4. Finally, citing Williamson v. Lee Optical Co., 348 U.S. 483, 75 S. Ct. 461 (1955), the court noted the broad discretion afforded legislative bodies in determining which aspects of general social problems should be targeted for regulation. See id. at *5.

Having denied the plaintiffs a preliminary injunction, the district court, pursuant to the parties' joint stipulation, entered final judgment denying plaintiffs' claims for declaratory and injunctive relief and dismissing plaintiffs' complaint. Plaintiffs brought this appeal contending that the Zoning Amendment violates the First Amendment because its regulation of female topless dancing, but not male topless dancing, constitutes a viewpoint-based restriction on expression suppressing the viewpoint of "female eroticism." In addition, they argue, the Zoning Amendment's differential treatment of male and female topless dancers constitutes a gender-based classification that cannot survive equal protection scrutiny.

The district court correctly relied on Young and Renton. Both cases involved ordinances substantially similar to New York City's Zoning Amendment; each ordinance regulated adult business establishments based upon essentially the same definitions of "Specified Sexual Activities" and "Specified Anatomical Areas" as the New York Zoning Amendment, including the differential treatment of male and female toplessness. See Young, 427 U.S. at 53 n.4, 96 S. Ct. at 2444 n.4; Playtime Theaters, Inc. v. City of Renton, 748 F.2d 527, 529 n.1 (9th Cir. 1984), rev'd, 475 U.S. 41, 106 S. Ct. 925 (1986). In Young, the Court upheld Detroit's adult film zoning ordinance, despite the fact that it singled out one category of expression for special regulation. A plurality of the Court placed importance on the fact that the expression at issue was far from the "core" of First Amendment protections, noting that "even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate." Young, 427 U.S. at 70, 96 S. Ct. at 2452 (plurality); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S. Ct. 2456, 2460 (1991) (plurality opinion) (quoting language from previous cases "support[ing] the conclusion . . . that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.").

Thus, the Young Court held, "[e]ven though the First Amendment protects communication in this area from total suppression . . . the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures." Young, 427 U.S. at 70-71, 96 S. Ct. at 2452 (plurality). Stressing that "the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems," the Young plurality concluded, with specific reference to Detroit's ordinance, that "[s]ince what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, even though the determination of whether a particular film fits that characterization turns on the nature of its content, we conclude that the city's interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures." Id. at 71-72, 96 S. Ct. at 2453 (footnote omitted).

Renton built directly upon the Young framework. The dissent in Renton argued that the adult zoning ordinance at issue "discriminate[d] on its face against certain forms of speech based on content" because its restrictions applied only to theaters showing a certain kind of material--i.e., sexually explicit films. See Renton, 475 U.S. at 57-58, 106 S. Ct. at 934 (Brennan, J., dissenting). The majority rejected this view. It acknowledged that "regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment," and that "the [Renton] ordinance treats theaters that specialize in adult films differently from other kinds of theaters." Renton, 475 U.S. at 46-47, 106 S. Ct. at 928-29 (citations omitted). The Renton majority nonetheless viewed the ordinance as content-neutral; "as the District Court concluded, the Renton ordinance is aimed not at the content of the films shown at 'adult motion picture theatres,' but rather at the secondary effects of such theaters on the surrounding community." Id. at 47, 106 S. Ct. at 929.

In reaching this conclusion, the Supreme Court looked to the overall purpose of the ordinance. Whereas the district court had found the Renton City Council's "'predominate concerns' [in enacting the ordinance] were with the secondary effects of adult theaters, and not with the content of adult films themselves," the court of appeals had applied a more stringent test, under which "if 'a motivating factor' in enacting the ordinance was to restrict respondents' exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council's decision." Id. (citations omitted). According to the Supreme Court, the court of appeals had erred in not looking to the overall purpose of the ordinance:

Id. at 48, 106 S. Ct. at 929 (alterations in original). As a result, the Court ruled,

The appellants argue that Young and Renton are distinguishable because neither addressed the issue whether the differential treatment of male and female toplessness constituted an impermissible viewpoint restriction. In considering this argument, we need not decide whether appellants have accurately characterized female topless dancing as conveying, for First Amendment purposes, the "viewpoint" of "female eroticism." For even assuming the correctness of plaintiff's contention, we do not think that the Zoning Amendment represents an attempt by New York City to disfavor the viewpoint of female eroticism.

We recognize that "[v]iewpoint discrimination is . . . an egregious form of content discrimination. The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." Rosenberger v. Rector and Visitors of the Univ. of Virginia, 515 U.S. 819, 829, 115 S. Ct. 2510, 2516 (1995).

We think it clear, however, that the viewpoint of "female eroticism" did not constitute New York City's "rationale for the restriction[s]" in the Zoning Amendment. As the district court found, "the record does not indicate that the city was aiming to suppress free expression or to disadvantage women who want to perform barechested, as opposed to similarly situated men. Rather, after careful study the city decided to regulate the zoning rights of adult establishments in an effort to address the negative impact such establishments have on the surrounding community." Buzzetti, 1997 WL 164284, at *3. Moreover, the Zoning Amendment by its terms applies both to male and female erotic dancers. All but one of the defined "specified sexual activities" apply to males as well as females, and all but one of the defined "specified anatomical areas" apply to males, as well. Moreover, the definition of "specified anatomical areas" also singles out "male genitals in a discernably turgid state." Zoning Amendment, §12-10. In sum, we agree with the district court that the Zoning Amendment is not aimed at suppressing the viewpoint of female eroticism, and is properly viewed, under Renton, as a content-neutral time, place, and manner regulation.

We therefore uphold the New York ordinance. With respect to the first requirement for upholding content-neutral regulations, the Supreme Court has made clear that concerns similar to those advanced by New York City, such as preventing crime, maintaining property values, and preserving the quality of urban life and the character of city neighborhoods, constitute "substantial governmental interest[s]." See Renton, 475 U.S. at 48, 50, 106 S. Ct. at 929, 930; see also Young, 427 U.S. at 71, 96 S. Ct. at 2453 (plurality) ("[T]he city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect."). In addition, Renton emphasized that city officials were not required to make particular findings regarding the secondary effects of adult entertainment in Renton itself, but rather were "entitled to rely on the experiences of . . . other cities." Renton, 475 U.S. at 51, 106 S. Ct. at 931; see id. at 51-52, 106 S. Ct. at 931 ("The First Amendment does not require a city, before enacting such an ordinance, to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses."). Thus, New York City's reliance on studies from a variety of other areas of the country was well-placed. But, as indicated above, New York City went beyond this minimal requirement: the DCP conducted its own detailed study, consulted other studies conducted in particular neighborhoods of New York City, and considered testimony given at public hearings in New York. As the District Court found:

Finally, there can be no doubt on this record that the Zoning Amendment allows for "reasonable alternative avenues of communication." The Renton Court noted that because the Renton ordinance left "some 520 acres, or more than five percent of the entire land area of Renton, open to use as adult theater sites," even though little or none of it might be "'commercially viable,'" "reasonable alternative avenues" remained. 475 U.S at 53-54, 106 S. Ct. at 932. In comparison, as the district court found in the instant case, "Eleven percent of New York City's total land area remains as permissible locations for adult establishments to operate. The Zoning Amendment certainly allows for alternative sites for adult establishments to operate." Buzzetti, 1997 WL 164284, at *5 n.13. Furthermore, the DCP has estimated that the Zoning Amendment "allow[s] for the operation of approximately 500 adult establishments in New York City" in comparison to the approximately 177 adult establishments currently operating in the city; "[a]ccordingly, the Amendment[] permit[s] all of the City's existing adult establishments to continue to operate in the City, either at their current sites or at new locations." See also Stringfellow's of New York, Ltd. v. City of New York, Nos. 17, 18, 19, __ N.Y.2d ___, ___, 1998 WL 77749, at *9-*10 (Feb. 24, 1998)(uncorrected slip op.).

We therefore agree with the district court, under the authority of Young and Renton, that the New York City Zoning Amendment is a content-neutral time, place, and manner regulation, is justified by substantial government interests and allows for reasonable alternative avenues of communication, and, accordingly, does not violate the First Amendment.

Appellants also argue that the Zoning Amendment's differential regulation of male and female topless dancing constitutes an invidious gender distinction, in violation of the Equal Protection Clause. The Supreme Court has recently "summarize[d] the Court's current directions for cases of official classification based on gender" as follows:

United States v. Virginia, 518 U.S. 515, ___, 116 S. Ct. 2264, 2275 (1996) (alteration in original) (citations omitted).

"It is clear that '[g]ender has never been rejected as an impermissible classification in all instances.'" Rostker v. Goldberg, 453 U.S. 57, 69 n.7, 101 S. Ct. 2646, 2654 n.7 (1981) (quoting Kahn v. Shevin, 416 U.S. 351, 356 n.10, 94 S. Ct. 1734, 1737-38 n.10 (1974)). The Court recently reaffirmed in Virginia that "[t]he heightened review standard our precedent establishes does not make sex a proscribed classification. . . . Physical differences between men and women . . . are enduring: [T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." Virginia, 518 U.S. at ___, 116 S. Ct. at 2276 (alterations in original) (internal quotation marks and citations omitted).

Thus, the Court has noted that "because the Equal Protection Clause does not demand that a statute necessarily apply equally to all persons or require things which are different in fact . . . to be treated in law as though they were the same, this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances." Michael M. v. Superior Court of Sonoma County, 450 U.S. 464, 469, 101 S. Ct. 1200, 1204 (1981) (plurality opinion) (internal quotation marks and citations omitted). Statutes that fairly can be seen as responding to clear sexual differences between men and women are among those laws that courts have upheld, despite the gender-based classifications contained in them. See, e.g., id. at 471-73, 101 S. Ct. at 1205-06 (upholding statutory rape law designed, inter alia, to prevent illegitimate teenage pregnancies under which only men could be held criminally liable because "[o]nly women may become pregnant, and they suffer disproportionately the profound physical, emotional and psychological consequences of sexual activity"; the statute was thus "sufficiently related to the state's objectives to pass constitutional muster"); Liberta v. Kelly, 839 F.2d 77, 82-83 (2d Cir.), cert. denied, 488 U.S. 832, 109 S. Ct. 89 (1988) (upholding, against equal protection challenge, a New York rape statute criminalizing coerced intercourse with females by males, but not coerced intercourse with males by females; "we find it inconceivable that males who rape should go free solely because the legislature focused on a real problem, rape of women by men, with verified attendant physical and psychological trauma, and failed to act on a hypothetical problem, rape of men by women"); United States v. Davis, 785 F.2d 610, 614 (8th Cir. 1986) (same; citing cases).

Applying these principles to the Zoning Amendment, we conclude that, for the reasons stated in our discussion of appellants' First Amendment claim, New York City's objectives of preventing crime, maintaining property values, and preserving the quality of urban life, are important. We also believe that the Zoning Amendment's regulation of female, but not male, topless dancing, in the context of its overall regulation of sexually explicit commercial establishments, is substantially related to the achivement of New York City's objectives.

In this latter connection, we note first that under the Supreme Court's tests for gender classifications, "[t]he relevant inquiry . . . is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the [legislature] is within constitutional limitations." Liberta, 839 F.2d at 83 (quoting Michael M., 450 U.S. at 473, 101 S. Ct. at 1206 (plurality opinion)) (alterations in Liberta). Here, as described above, New York City officials, in addition to canvassin

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