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Barnes v. Glen Theatre, Inc.

Supreme Court of the United States · 1991 · Constitutional Law

Constitutional LawFirst AmendmentExpressive ConductFirst Amendmentexpressive conductnude dancingpublic indecencyO'Brien test

Facts

Respondents operated two South Bend, Indiana establishments that wished to present totally nude dancing, and individual dancers employed there wanted to perform nude. Indiana's public indecency statute prohibited appearing in a state of nudity in a public place, which required the dancers to wear at least pasties and G-strings. The Kitty Kat Lounge sold alcohol and presented go-go dancing, while Glen Theatre offered adult entertainment including live nude and seminude performances viewed by customers in booths. Respondents claimed that enforcing the statute against their nude dancing violated the First Amendment.

Issue

Whether Indiana may enforce its public indecency statute to require dancers in respondents' establishments to wear pasties and G-strings, or whether that application violates the First Amendment's protection of expressive conduct.

Rule

Even assuming nude dancing is expressive conduct within the outer perimeters of the First Amendment, a generally applicable public indecency law is valid under United States v. O'Brien if it is within the State's constitutional power, furthers an important or substantial governmental interest, serves an interest unrelated to the suppression of free expression, and imposes no greater incidental restriction on First Amendment freedoms than essential. A prohibition on public nudity that merely requires dancers to wear pasties and G-strings satisfies that test when aimed at public nudity rather than the erotic message of the dance.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Columbus, Ohio, a club called Riverfront Nights presents choreographed adult dance performances. Ohio enforces a statewide statute forbidding any person from appearing nude in any public place, but the statute allows performers to wear only opaque nipple coverings and a minimal bottom covering. The dancers sue, arguing that their performances are expressive and therefore fully protected.

How should a court most likely analyze the statute as applied to the dancers' performances?

Explanation. The lead opinion assumed nude dancing of this kind was expressive conduct, though only marginally so, and then applied the O'Brien test for conduct combining speech and nonspeech elements. A generally applicable public indecency law may be valid if it is within the State's power, furthers a substantial interest, is unrelated to suppressing expression, and imposes no greater incidental burden than essential.