Barnes v. Glen Theatre, Inc.

United States Supreme Court

501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed. 2d. 504 (1991)

Two South Bend, Indiana, establishments that featured all-nude dancing brought suit in the U.S. District Court for the Northern District of Indiana seeking an injunction against enforcement of an Indiana statute prohibiting complete nudity in public places. The district court dismissed the case, concluding that “the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States.” On appeal, the Court of Appeals for the Seventh Circuit reversed, holding that the nude dancing at issue was “expressive conduct protected by the First Amendment.” The Supreme Court granted certiorari.

Chief Justice Rehnquist ... [announced the judgment of the Court and delivered an opinion joined by Justices O’Connor and Kennedy].

... The Kitty Kat Lounge, Inc. (Kitty Kat) is located in the city of South Bend. It sells alcoholic beverages and presents “go-go dancing.” Its proprietor desires to present “totally nude dancing,” but an applicable Indiana statute regulating public nudity requires that the dancers wear “pasties” and a “G-string” when they dance. The dancers are not paid an hourly wage, but work on commission. They receive a 100 percent commission on the first $60 in drink sales during their performances. Darlene Miller, one of the respondents in the action, had worked at the Kitty Kat for about two years at the time this action was brought. Miller wishes to dance nude because she believes she would make more money doing so.

Respondent Glen Theatre, Inc. is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at the “bookstore” consists of nude and seminude performances and showings of the female body through glass panels. Customers sit in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre’s dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. ...

Several of our cases contain language suggesting that nude dancing of the kind involved here is expressive conduct protected by the First Amendment. In Doran v. Salem Inn, Inc. ... (1975), we said: “[A]lthough the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, we recognized in California v. LaRue ... (1972), that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.” In Schad v. Borough of Mount Ephraim ... (1981), we said that “[f]urthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation.” … These statements support the conclusion of the Court of Appeals 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. This, of course, does not end our inquiry. We must determine the level of protection to be afforded to the expressive conduct at issue, and must determine whether the Indiana statute is an impermissible infringement of that protected activity.

Indiana, of course, has not banned nude dancing as such, but has proscribed public nudity across the board. The Supreme Court of Indiana has construed the Indiana statute to preclude nudity in what are essentially places of public accommodation such as the Glen Theatre and the Kitty Kat Lounge. In such places, respondents point out, minors are excluded and there are no non-consenting viewers. Respondents contend that while the state may license establishments such as the ones involved here, and limit the geographical area in which they do business, it may not in any way limit the performance of the dances within them without violating the First Amendment. The petitioner contends, on the other hand, that Indiana’s restriction on nude dancing is a valid “time, place or manner” restriction under cases such as Clark v. Community for Creative Non-Violence ... (1984).

The “time, place, or manner” test was developed for evaluating restriction on expression taking place on the public property which had been dedicated as a “public forum,” ... although we have on at least one occasion applied it to conduct occurring on private property. ... In Clark we observed that this test has been interpreted to embody much the same standards as those set forth in United States v. O’Brien ... (1968), and we turn, therefore, to the rule enunciated in O’Brien. ...

This Court has held that when “speech” and “nonspeech” elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitation on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than essential to the furtherance of that interest. ...

Applying the four-part O’Brien test enunciated above, we find that Indiana’s public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests. It is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted this statute, for Indiana does not record legislative history, and the state’s highest court has not shed additional light on the statute’s purpose. Nonetheless, the statute’s purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common-law roots of the offense of “gross and open indecency” in Winters v. New York ... (1948). Public nudity was considered an act malum en se. ... Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.

This public indecency statute follows a long line of earlier Indiana statutes banning all public nudity. The history of Indiana’s public indecency statute shows that it predates barroom nude dancing and was enacted as a general prohibition. At least as early as 1831, Indiana has a statute punishing “open and notorious lewdness, or ... any grossly scandalous and public indecency.” ... A gap during which no statute was in effect was filled by the Indiana Supreme Court in Ardery v. State ... (1877), which held that the court could sustain a conviction for exhibitions of “privates” in the presence of others. The court traced the offense to the Bible story of Adam and Eve. ... In 1881, a statute was enacted that would remain essentially unchanged for nearly a century:

Whoever, being over fourteen years of age, makes an indecent exposure of his person in a public place, or in any place where there are other persons to be offended or annoyed thereby, ... is guilty of public indecency. ...

The language quoted above remained unchanged until it was simultaneously repealed and replaced with the present statute in 1976. ...

This and other public indecency statutes were designed to protect morals and public order. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. ...

... In Bowers v. Hardwick ... (1986), we said: “The law, however, is constantly based on notion of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.”

Thus, the public indecency statute furthers a substantial government interest in protecting order and morality.

This interest is unrelated to the suppression of free expression. Some may view restricting nudity on moral grounds as necessarily related to expression. We disagree. It can be argued, of course, that almost limitless types of conduct—including appearing in the nude in public—are “expressive,” and in one sense of the word this is true. People who go about in the nude in public may be expressing something about themselves by so doing. But the Court rejected this expansive notion of “expressive conduct” in O’Brien, saying:

We cannot accept the view that an apparently limitless variety of conduct can be labelled “speech” whenever the person engaging in the conduct intends thereby to express an idea. ...

Respondents contend that even though prohibiting nudity in public generally may not be related to suppressing expression, prohibiting the performance of nude dancing is related to expression because the state seeks to prevent its erotic message. Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the O’Brien test, viz: the governmental interest must be unrelated to the suppression of free expression.

But we do not think that when Indiana applies its statute to the nude dancing in these nightclubs it is proscribing nudity because of the erotic message conveyed by the dancers. Presumably numerous other erotic performances are presented at these establishments and similar clubs without any interference from the state, so long as the performers wear a scant amount of clothing. Likewise the requirement that the dancers don pasties and a G-string does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity.

This conclusion is buttressed by a reference to the facts of O’Brien. An act of Congress provided that anyone who knowingly destroyed a selective service registration certificate committed an offense. O’Brien burned his certificate on the steps of the South Boston Courthouse to influence others to adopt his anti-war beliefs. The Court upheld his conviction, reasoning that the continued availability of issued certificates served a legitimate and substantial purpose in the administration of the selective service system. O’Brien’s deliberate destruction of his certificate frustrated this purpose and “for this non-communicative aspect of his conduct, and for nothing else, he was convicted.” ... It was assumed that O’Brien’s act in burning the certificate had a communicative element in it sufficient to bring into play the First Amendment, ... but it was for the non-communicative element that he was prosecuted. So here with the Indiana statute; while the dancing to which it was applied had a communicative element, it was not the dancing that was prohibited, but simply its being done in the nude.

The fourth part of the O’Brien test requires that the incidental restriction on First Amendment freedom be no greater than is essential to the furtherance of the governmental interest. As indicated in the discussion above, the governmental interest served by the text of the prohibition is societal disapproval of nudity in public places and among strangers. The statutory prohibition is not a means to some greater end, but an end in itself. It is without cavil that the public indecency statute is “narrowly tailored”; Indiana’s requirement that the dancers wear at least pasties and a G-string is modest, and the bare minimum necessary to achieve the state’s purpose.

The judgment of the Court of Appeals accordingly is ... reversed.

Justice Scalia, concurring in the judgment. ...

Justice Souter, concurring in the judgment. ...

Justice White, with whom Justice Marshall, Justice Blackmun, and Justice Stevens join, dissenting.

... We are told by the Attorney General of Indiana that ... the Indiana Supreme Court [has] held that the statute at issue here cannot and does not prohibit nudity as part of some larger form of expression meriting protection when the communication of ideas is involved. ... Petitioners also state that the evils sought to be avoided by applying the statute in this case would not obtain in the case of theatrical productions such as Salome or Hair. Neither is there any evidence that the State has attempted to apply the statute to nudity in performances such as plays, ballets or operas. “No arrests have ever been made for nudity as part of a play or ballet.” ...

Thus, the Indiana statute is not a general prohibition of the type that we have upheld in prior cases. As a result, the Court’s and Justice Scalia’s simple references to the State’s general interest in promoting societal order and morality [are] not sufficient justification for a statute which concededly reaches a significant amount of expressive activity. Instead of applying the O’Brien test, we are obligated to carefully examine the reasons the State has chosen to regulate this expressive conduct in a less than general statute. In other words, when the State enacts a law which draws a line between expressive conduct of the same type which is regulated and nonexpressive conduct which is not regulated, O’Brien places the burden on the State to justify the distinctions it has made. Closer inquiry as to the purpose of the statute is surely appropriate.

Legislators do not just randomly select certain conduct for proscription; they have reasons and those reasons illuminate the purpose of the law that is passed. Indeed, a law may have multiple purposes. The purpose of forbidding people from appearing nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates. ...

That the performances in the Kitty Kat Lounge may not be high art, to say the least, and may not appeal to the Court, is hardly an excuse for distorting and ignoring settled doctrine. The Court’s assessment of the artistic merits of nude dancing performances should not be the determining factor in deciding this case. In the words of Justice Harlan, “it is largely because governmental officials cannot make principled decisions in this area that the Constitution leaves matters of taste and style so largely to the individual.” ... “[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who ... wants some ‘entertainment’ with his beer or shot of rye.” ...

As I see it, our cases require us to affirm absent a compelling state interest supporting the statute. Neither the Court nor the State suggest that the statute could withstand scrutiny under that standard. ...

Accordingly, I would affirm the judgment of the Court of Appeals, and dissent from this Court’s judgment.