Justices hear license, nude dancing cases

WASHINGTON - The Supreme Court heard oral arguments yesterday in two decidedly different but similarly enthralling cases: whether states can be barred from disclosing the personal information drivers provide to get a license and under what circumstances cities can ban nude dancing.

The first case centered on a 1994 federal law that forbids states from selling the addresses, telephone numbers and other information that motorists provide to obtain licenses. The Driver's Privacy Protection Act was passed in the wake of congressional concern about stalkers who use motor vehicle records to track down their victims. The law clearly also reflected privacy concerns in a era where technology allows for the instantaneous dissemination of data.

Because South Carolina challenged the law as an infringement on state authority, the case offers the Rehnquist Court an opportunity to continue its pattern of curtailing federal power. In recent cases, a narrow, but consistent majority of the justices have struck down several federal laws that encroached on the states.

The question of congressional power was at the forefront in the arguments yesterday, and some of the justices suggested that if the court struck down the drivers' privacy law, other federal legislation would be in jeopardy, including minimum-wage and overtime protections.

Federal appeals courts are divided over the constitutionality of the drivers' privacy law, and in the case before the justices yesterday, the 4th U.S. Circuit Court of Appeals had ruled it invalid, saying Congress was improperly forcing states to administer a federal program. The law provides numerous exceptions for when states can turn over information, for example for public safety and anti-fraud purposes, and some states argue it is complicated to run.

The practical reality of the law, South Carolina attorney general Charles Condon told the justices, is that it requires states to take on a burdensome administrative effort. He said it effectively forces state workers into national service.

But in his appeal of the 4th Circuit ruling, Solicitor General Seth Waxman emphasized the threat to privacy from the disclosure of personal information into "the national economy." He said Congress didn't want to interfere with how states run their motor vehicle records, only to control what is released nationwide, potentially putting lives at risk.

Justice Anthony Kennedy vigorously questioned whether Congress had authority to regulate the states this way and said the law might "blur the line" of power between the states and Washington. Justice Sandra Day O'Connor was similarly concerned about whether the federal government was encroaching on core state functions - keeping motor vehicle data - but suggested that if the court were to strike down the law it might have to revisit an important 1985 case that allowed Congress to subject the states to fair labor standards.

In the second case of the morning, the justices reviewed constitutional standards for whether nudity is expressive conduct worthy of First Amendment protection. The Pennsylvania Supreme Court threw out the city of Erie's ban on nudity saying it was too broadly written.

In oral arguments, the justices expressed some reservations about even getting to the merits of the city's appeal because the adult establishment that challenged the law has since gone out of business. The case might be moot.

If the justices do reach the question of when nude-dancing bans are constitutional, they will presumably consider the rationale of their 1991 case on the topic. In that 5-4 decision, the justices ruled that an Indiana public indecency statute outlawing totally nude dancing did not violate the First Amendment. The justices split on their reasoning - which is why lower courts have been confused over when to uphold nudity laws. The majority generally said that nude dancing is subject to some First Amendment protection but that other community interests of safety and morality may present overriding concerns.

11-11-99