Legal Libertarianism

In the present state of permissive morals and confused manners, what outrages "public decency"? Not, apparently a bare-breasted girl. Not, at least, in California, which in recent months has witnessed the emergence of the bare-breasted waitress.

It was all inspired by last year's summer sensation, the topless bathing suit. The suit died on the beaches, but California restaurateurs saw other possibilities. Soon patrons sitting down to lunch at many a Los Angeles restaurant were apt to look up from their menu to discover a waitress wearing nothing above the waist. San Francisco's flagging nightclubs along North Beach went topless with enthusiasm, with more emphasis on wiggly performers. Some of the topless establishments are dilapidated dives where the girls are as easy to smuggle home as the ashtrays. But others are remarkably respectable, including some private luncheon clubs frequented by judges, doctors and bank directors.

An Instructed Verdict. Guardians of the public morals, self-appointed or official, have had little success in repressing the exhibitionism. Most recently, the San Francisco police raided two North Beach nightclubs, the Condor and the Off-Broadway, and dragged both proprietors into court. The Off-Broadway, which offers topless waitresses along with such name performers as Dizzy Gillespie, Stan Kenton and Trini Lopez, was accused of operating "a lewd and obscene exhibition" and of "conduct outraging public decency."

Defending Counsel Melvin Belli, who has been offered all kinds of curious jobs since he defended Jack Ruby, ingeniously asked for dismissal on the grounds that the girls had been made to incriminate themselves, since nobody had told them they could refuse to have their pictures taken in the nonattire they were not wearing when they were arrested. Municipal Judge Leo Friedman concurred, further ruled that bare bosoms, in and of themselves, are neither lewd, lascivious nor obscene, and advised the jury to return a verdict of not guilty. The jury complied.

For the Condor, and specifically Dancer Carol Doda, Lawyer Harry Wainwright pointed out that the U.S. Supreme Court last March, considering a censorship case involving the Danish film A Stranger Knocks, ruled that the acts of sexual intercourse semi-depicted on the screen were not necessarily obscene, and further insisted that the First Amendment applied to freedom of conduct and expression as well as speech. An "expert witness" duly testified that the performance, "applying contemporary standards of the average person," was not "of prurient interest." The judge agreed.

A Jury of Peers. In the Los Angeles area, California's Alcoholic Beverage Control Board had no better luck in trying to control the situation by threatening to revoke licenses. Haled before the board, Whitey Locker, proprietor of Santa Monica's The Ball, protested that his club was patronized by some of the town's leading citizens: "How, then, can you say it runs counter to the community's sense of decency?"

As a result of the new libertarianism, California's two largest cities now have some 200 places where men can peer through their martinis at waitresses in one-piece bikinis.

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