Do strippers have a Constitutional right to dance nude? That was the question before the United State Supreme Court in  Barnes v Glen Theatre Inc et al — and it is the subject of the latest adventurous theater piece by the Elevator Repair Service, which came to fame with Gatz, its play using the verbatim text of F. Scott Fitzgerald’s novel The Great Gatsby.

The difficulty in securing legal permission from the Fitzgerald estate to mount “Gatz” led ERS artistic director John Collins to research copyright law; during his research he stumbled upon this 1991 First Amendment case about public nudity, which ended in a 5 to 4 decision. (I won’t tell you which side won; you can see the show to find out, or click here) “Arguendo” shapes the transcript of the oral arguments into performance art —  80 minutes that are frequently absorbing, and sometimes silly.

A law in Indiana banned public nudity, requiring dancers to wear pasties and a G-string. Glen Theater, the Kitty Kat Lounge and three of its nude dancers sued to overturn the law.

The five members of the cast play the nine Justices, the two attorneys who argued the two sides of the case, various reporters and court personnel, and, most memorably, a dancer who was not connected to the case. She traveled to Washington D.C., and held a press conference outside the Supreme Court to offer her public support.

Elevator Repair Service is smart to include this scene, played in just the right pitch by Maggie Hoffman. But the oral arguments themselves, though conducted entirely by lawyers, without even the presence of the interested parties, are fascinating in themselves, and surprisingly accessible – as anybody knows who has read the transcripts (or, lately, listened to the audio) of Supreme Court arguments in nearly any significant case.

To explore the attorneys’ arguments, the Justices ask about a series of hypothetical scenarios. Can Indiana outlaw tapdancing,  a Justice asks Wayne E. Uhl, who was the Deputy Attorney General of Indiana (although in the play we know him only as Mr. Uhl.) Could it ban a videotape of a nude performance, or just the live nude performance? If a dancer in Indiana wanted to perform a “kind of an Annie Oakley dance” and fired a gun at somebody, would that be protected by the First Amendment, Chief Justice Rehnquist asks Bruce J. Ennis, Jr., attorney for the theater and the dancers (Mr. Ennis.) To Mr. Uhl’s argument that the dancers who have sued just want to dance nude to make money (adding that this “commercial purpose” should be taken into account in judging their First Amendment claims), Justice Scalia (!) retorts: That’s why Charles Dickens wrote his books too.

As entertaining as the back-and-forth can be, it is also thought-provoking, leading one to ponder more general questions, such as: What is artistic expression?

The performances are augmented by vertiginous projections of various texts – a verbal reference to a past case, for example, is accompanied by the zooming in of a passage from that case. This seems less an aid to the audience than a design gimmick – pleasing enough visually, but rarely adding any clarity. (There is a glossary of legal terms and specific relevant cases in the program. We’re told “Arguendo,” for example, “for the sake of argument.” )

Similarly, the theater company adds some standard downtown quirkiness – the Justices at times wheel their chairs around in something approximating choreography (Katherine Profeta is listed in the program as the “movement dramaturg”); there is chaotic fluttering of papers; there is some nudity. None of these flourishes do much for me, although I do acknowledge and respect their Constitutional right to such artistic expression.

Click on any photograph to enlarge it

Arguendo

At the Public Theater

Created and performed by Elevator Repair Service

Directed by John Collins

Set design by David Zinn, lighting design by Mark Barton, costume design by Jacob Climber, sound design by Matt Tierney, projection design by Ben Rubin, movement dramaturg Katherine Profeta, projection dramaturg Eva Von Schweinitz

Media software by The Office for Creative Research

Cast: Maggie Hoffman, Mike Iveson, Vin Knight, Susie Sokol, Ben Williams

Running time: 80 minutes, no intermission

Tickets: $66.50 – $76.50

Arguendo is scheduled to run through October 13, 2013