Subject:  BARNES v. GLEN THEATRE, INC., Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus



BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, et al. v. GLEN
THEATRE, INC., et al.

certiorari to the united states court of appeals for the seventh circuit

No. 90-26.  Argued January 8, 1991 -- Decided June 21, 1991

Respondents, two Indiana establishments wishing to provide totally nude
dancing as entertainment and individual dancers employed at those
establishments, brought suit in the District Court to enjoin enforcement of
the state public indecency law -- which requires respondent dancers to wear
pasties and a G-string -- asserting that the law's prohibition against
total nudity in public places violates the First Amendment.  The court held
that the nude dancing involved here was not expressive conduct.  The Court
of Appeals reversed, ruling that nonobscene nude dancing performed for
entertainment is protected expression, and that the statute was an improper
infringement of that activity because its purpose was to prevent the
message of eroticism and sexuality conveyed by the dancers.

Held: The judgment is reversed.

904 F. 2d 1081, reversed.

    The Chief Justice, joined by Justice O'Connor and Justice Kennedy,
concluded that the enforcement of Indiana's public indecency law to prevent
totally nude dancing does not violate the First Amendment's guarantee of
freedom of expression.  Pp. 4-10.

    (a) Nude dancing of the kind sought to be performed here is expressive
conduct within the outer perimeters of the First Amendment, although only
marginally so.  See, e. g., Doran v. Salem Inn, Inc., 422 U. S. 922, 932.
P. 4.

    (b) Applying the four-part test of United States v. O'Brien, 391 U. S.
367, 376-377 -- which rejected the contention that symbolic speech is
entitled to full First Amendment protection -- the statute is justified
despite its incidental limitations on some expressive activity.  The law is
clearly within the State's constitutional power.  And it furthers a
substantial governmental interest in protecting societal order and
morality.  Public indecency statutes reflect moral disapproval of people
appearing in the nude among strangers in public places, and this particular
law follows a line of state laws, dating back to 1831, banning public
nudity.  The States' traditional police power is defined as the authority
to provide for the public health, safety, and morals, and such a basis for
legislation has been upheld.  See, e. g., Paris Adult Theatre I v. Slaton,
413 U. S. 49, 61.  This governmental interest is unrelated to the
suppression of free expression, since public nudity is the evil the State
seeks to prevent, whether or not it is combined with expressive activity.
The law does not proscribe nudity in these establishments because the
dancers are conveying an erotic message.  To the contrary, an erotic
performance may be presented without any state interference, so long as the
performers wear a scant amount of clothing.  Finally, the incidental
restriction on First Amendment freedom is no greater than is essential to
the furtherance of the governmental interest.  Since the statutory
prohibition is not a means to some greater end, but an end itself, it is
without cavil that the statute is narrowly tailored.  Pp. 5-10.

    Justice Scalia concluded that the statute -- as a general law
regulating conduct and not specifically directed at expression, either in
practice or on its face -- is not subject to normal First Amendment
scrutiny and should be upheld on the ground that moral opposition to nudity
supplies a rational basis for its prohibition.  Cf. Employment Division,
Oregon Dept. of Human Resources v. Smith, 494 U. S. ---.  There is no
intermediate level of scrutiny requiring that an incidental restriction on
expression, such as that involved here, be justified by an important or
substantial governmental interest.  Pp. 1-9.

    Justice Souter, agreeing that the nude dancing at issue here is subject
to a degree of First Amendment protection, and that the test of United
States v. O'Brien, 391 U. S. 367, is the appropriate analysis to determine
the actual protection required, concluded that the State's interest in
preventing the secondary effects of adult entertainment establishments --
prostitution, sexual assaults, and other criminal activity -- is sufficient
under O'Brien to justify the law's enforcement against nude dancing.  The
prevention of such effects clearly falls within the State's constitutional
power.  In addition, the asserted interest is plainly substantial, and the
State could have concluded that it is furthered by a prohibition on nude
dancing, even without localized proof of the harmful effects.  See Renton
v. Playtime Theatres, Inc., 475 U. S. 41, 50, 51.  Moreover, the interest
is unrelated to the suppression of free expression, since the pernicious
effects are merely associated with nude dancing establishments and are not
the result of the expression inherent in nude dancing.  Id., at 48.
Finally, the restriction is no greater than is essential to further the
governmental interest, since pasties and a Gstring moderate expression to a
minor degree when measured against the dancer's remaining capacity and
opportunity to express an erotic message.  Pp. 1-7.

Rehnquist, C. J., announced the judgment of the Court and delivered an
opinion in which O'Connor and Kennedy, JJ., joined.  Scalia, J., filed an
opinion concurring in the judgment.  Souter, J., filed an opinion
concurring in the judgment.  White, J., filed a dissenting opinion, in
which Marshall, Blackmun, and Stevens, JJ., joined.

------------------------------------------------------------------------------




Subject: 90-26 -- OPINION, BARNES v. GLEN THEATRE, INC.

 


NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 90-26



MICHAEL BARNES, PROSECUTING ATTORNEY OF
ST. JOSEPH COUNTY, INDIANA, et al. v.
GLEN THEATRE, INC., et al.


on writ of certiorari to the united states court of appeals for the seventh
circuit

[June 21, 1991]



    Chief Justice Rehnquist delivered the opinion of the Court.
    Respondents are two establishments in South Bend, In diana, that wish
to provide totally nude dancing as enter tainment, and individual dancers
who are employed at these establishments.  They claim that the First
Amendment's guarantee of freedom of expression prevents the State of
Indiana from enforcing its public indecency law to prevent this form of
dancing.  We reject their claim.
    The facts appear from the pleadings and findings of the District Court,
and are uncontested here.  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 an enclosed "bookstore."  The 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.  App. to Pet. for Cert. 131-133.
    Respondents sued in the United States District Court for the Northern
District of Indiana to enjoin the enforcement of the Indiana public
indecency statute, Ind. Code MDRV 35-45-4-1 (1988), asserting that its
prohibition against complete nudity in public places violated the First
Amendment.  The District Court originally granted respondents' prayer for
an injunction, finding that the statute was facially overbroad.  The Court
of Appeals for the Seventh Circuit reversed, deciding that previous
litigation with respect to the statute in the Supreme Court of Indiana and
this Court precluded the possibility of such a challenge, {1} and remanded
to the District Court in order for the plaintiffs to pursue their claim
that the statute violated the First Amendment as applied to their dancing.
Glen Theatre, Inc. v. Pearson, 802 F. 2d 287, 288290 (1986).  On remand,
the District Court concluded that "the type of dancing these plaintiffs
wish to perform is not expressive activity protected by the Constitution of
the United States," and rendered judgment in favor of the defendants.  Glen
Theatre, Inc. v. Civil City of South Bend, 695 F. Supp. 414, 419 (ND Ind.
1988).  The case was again appealed to the Seventh Circuit, and a panel of
that court reversed the District Court, holding that the nude dancing
involved here was expressive conduct protected by the First Amendment.
Miller v. Civil City of South Bend, 887 F. 2d 826 (CA7 1989).  The Court of
Appeals then heard the case en banc, and the court rendered a series of
comprehensive and thoughtful opinions.  The majority concluded that non
obscene nude dancing performed for entertainment is expression protected by
the First Amendment, and that the public indecency statute was an improper
infringement of that expressive activity because its purpose was to prevent
the message of eroticism and sexuality conveyed by the dancers.  Miller v.
Civil City of South Bend, 904 F. 2d 1081 (CA7 1990).  We granted
certiorari, 498 U. S. --- (1990), and now hold that the Indiana statutory
requirement that the dancers in the establishments involved in this case
must wear pasties and a G-string does not violate the First Amendment.
    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., 422 U. S. 922, 932 (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, 409 U. S. 109, 118 (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, 452 U. S. 61, 66 (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" (citations omitted).  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, 468 U. S. 288 (1984).
    The "time, place, or manner" test was developed for evaluating
restrictions on expression taking place on public property which had been
dedicated as a "public forum," Ward v. Rock Against Racism, 491 U. S. 781,
791 (1989), although we have on at least one occasion applied it to conduct
occurring on private property. See Renton v. Playtime Theatres, Inc., 475
U. S. 41 (1986).  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, 391 U. S. 367 (1968), and we turn, therefore, to the rule
enunciated in O'Brien.
    O'Brien burned his draft card on the steps of the South Boston
courthouse in the presence of a sizable crowd, and was convicted of
violating a statute that prohibited the knowing destruction or mutilation
of such a card.  He claimed that his conviction was contrary to the First
Amendment because his act was "symbolic speech" -- expressive conduct.  The
court rejected his contention that symbolic speech is entitled to full
First Amendment protection, saying:

"[E]ven on the assumption that the alleged communicative element in
O'Brien's conduct is sufficient to bring into play the First Amendment, it
does not necessarily follow that the destruction of a registration
certificate is constitutionally protected activity.  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 limitations 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 is
essential to the furtherance of that interest."  Id., at 376-377 (footnotes
omitted).


    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, 333 U. S. 507, 515 (1948).  Public nudity was considered an act
malum en se.  Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (K. B. 1664).
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 had a
statute punishing "open and notorious lewdness, or . . . any grossly
scandalous and public indecency."  Rev. Laws of Ind., ch. 26, MDRV 60
(1831); Ind. Rev. Stat., ch. 53, MDRV 81 (1834).  A gap during which no
statute was in effect was filled by the Indiana Supreme Court in Ardery v.
State, 56 Ind. 328 (1877), which held that the court could sustain a
conviction for exhibition of "privates" in the presence of others.  The
court traced the offense to the Bible story of Adam and Eve.  Id., at
329-330.  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 . .
. ."  1881 Ind. Acts, ch. 37, MDRV 90.


The language quoted above remained unchanged until it was simultaneously
repealed and replaced with the present statute in 1976.  1976 Ind. Acts,
Pub. L. 148, Art. 45, ch. 4, MDRV 1. {2}     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 Paris Adult Theatre I v. Slaton, 413 U. S. 49,
61 (1973), we said:

"In deciding Roth [v. United States, 354 U. S. 476 (1957)], this Court
implicitly accepted that a legislature could legitimately act on such a
conclusion to protect `the social interest in order and morality.'  [Id.],
at 485."  (Emphasis omitted.)


And in Bowers v. Hardwick, 478 U. S. 186, 196 (1986), we said:

"The law, however, is constantly based on notions 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."  391 U. S. at 376.


    And in Dallas v. Stanglin, 490 U. S. 19, we further observed:

"It is possible to find some kernel of expression in almost every activity
a person undertakes -- for example, walking down the street or meeting
one's friends at a shopping mall -- but such a kernel is not sufficient to
bring the activity within the protection of the First Amendment.  We think
the activity of these dance-hall patrons coming together to engage in
recreational dancing -- is not protected by the First Amendment."  490 U.
S. 19, 25.


    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.  This 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."  391 U. S., at 302.  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, 391 U. S., at 376, but
it was for the noncommunicative 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 in cidental 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 Gstring is modest, and the bare
minimum necessary to achieve the state's purpose.
    The judgment of the Court of Appeals accordingly is

Reversed.


 
 
 
 
 

------------------------------------------------------------------------------
1
    The Indiana Supreme Court appeared to give the public indecency statute
a limiting construction to save it from a facial overbreadth attack:


"There is no right to appear nude in public.  Rather, it may be
constitutionally required to tolerate or to allow some nudity as a part of
some larger form of expression meriting protection, when the communication
of ideas is involved."  State v. Baysinger, 272 Ind. 236, 247, 397 N. E. 2d
580, 587 (1979) (emphasis added) appeals dism'd sub nom. Clark v. Indiana,
446 U. S. 931, and Dove v. Indiana, 449 U. S. 806 (1980).


    Five years after Baysinger, however, the Indiana Supreme Court reversed
a decision of the Indiana Court of Appeals holding that the statute did
"not apply to activity such as the theatrical appearances involved herein,
which may not be prohibited absent a finding of obscenity," in a case
involving a partially nude dance in the "Miss Erotica of Fort Wayne"
contest.  Erhardt v. State, 468 N. E. 2d 224 (Ind. 1984).  The Indiana
Supreme Court did not discuss the constitutional issues beyond a cursory
comment that the statute had been upheld against constitutional attack in
Baysinger, and Erhardt's conduct fell within the statutory prohibition.
Justice Hunter dissented, arguing that "a public indecency statute which
prohibits nudity in any public place is unconstitutionally overbroad.  My
reasons for so concluding have already been articulated in State v. Bay
singer, (1979) 272 Ind. 236, 397 N. E. 2d 580 (Hunter and DeBruler, JJ.,
dissenting)."  Id., at 225-226.  Justice DeBruler expressed similar views
in his dissent in Erhardt.  Ibid.  Therefore, the Indiana Supreme Court did
not affirmatively limit the reach of the statute in Baysinger, but merely
said that to the extent the First Amendment would require it, the statute
might be unconstitutional as applied to some activities.

2
    Indiana Code MDRV 35-45-4-1 (1988) provides:

"Public Indecency
    "Sec. 1.  (a) A person who knowingly or intentionally, in a public
place:

"(1) engages in sexual intercourse;
"(2) engages in deviate sexual conduct;
"(3) appears in a state of nudity; or
"(4) fondles the genitals of himself or another person;

commits public indecency, a Class A misdemeanor.
    "(b) `Nudity' means the showing of the human male or female genitals,
pubic area, or buttocks with less than a fully opaque covering, the showing
of the female breast with less than a fully opaque covering of any part of
the nipple, or the showing of the covered male genitals in a discernibly
turgid state."





Subject: 90-26 -- CONCUR, BARNES v. GLEN THEATRE, INC.

 


    SUPREME COURT OF THE UNITED STATES


No. 90-26



MICHAEL BARNES, PROSECUTING ATTORNEY OF
ST. JOSEPH COUNTY, INDIANA, et al. v.
GLEN THEATRE, INC., et al.


on writ of certiorari to the united states court of appeals for the seventh
circuit

[June 21, 1991]




    Justice Scalia, concurring in the judgment.

    I agree that the judgment of the Court of Appeals must be reversed.  In
my view, however, the challenged regulation must be upheld, not because it
survives some lower level of First-Amendment scrutiny, but because, as a
general law regulating conduct and not specifically directed at expression,
it is not subject to First-Amendment scrutiny at all.
I


    Indiana's public indecency statute provides:
"(a) A person who knowingly or intentionally, in a public place:
    "(1) engages in sexual intercourse;
    "(2) engages in deviate sexual conduct;
    "(3) appears in a state of nudity; or
    "(4) fondles the genitals of himself or another person;
commits public indecency, a Class A misdemeanor.
"(b) `Nudity' means the showing of the human male or female genitals, pubic
area, or buttocks with less than a fully opaque covering, the showing of
the female breast with less than a fully opaque covering of any part of the
nipple, or the showing of covered male genitals in a discernibly turgid
state."  Ind. Code MDRV 35-45-4-1 (1988).

On its face, this law is not directed at expression in particular.  As
Judge Easterbrook put it in his dissent below: "Indiana does not regulate
dancing.  It regulates public nudity. . . .  Almost the entire domain of
Indiana's statute is unrelated to expression, unless we view nude beaches
and topless hot dog vendors as speech."  Miller v. Civil City of South
Bend, 904 F. 2d 1081, 1120 (CA7 1990) (Easterbrook, J., dissenting).  The
intent to convey a "message of eroticism" (or any other message) is not a
necessary element of the statutory offense of public indecency; nor does
one commit that statutory offense by conveying the most explicit "message
of eroticism," so long as he does not commit any of the four specified acts
in the process. {1}
    Indiana's statute is in the line of a long tradition of laws against
public nudity, which have never been thought to run afoul of traditional
understanding of "the freedom of speech."  Public indecency -- including
public nudity -- has long been an offense at common law.  See 50 Am. Jur.
2d 449, 472-474 (1970); 93 A. L. R. 996, 997-998 (1934); Winters v. New
York, 333 U. S. 507, 515 (1948).  Indiana's first public nudity statute,
Rev. Laws of Indiana, ch. 26, MDRV 60 (1831), predated by many years the
appearance of nude barroom dancing.  It was general in scope, directed at
all public nudity, and not just at public nude expression; and all
succeeding statutes, down to the present one, have been the same.  Were it
the case that Indiana in practice targeted only expressive nudity, while
turning a blind eye to nude beaches and unclothed purveyors of hot dogs and
machine tools, see Miller, 904 F. 2d, at 1120, 1121, it might be said that
what posed as a regulation of conduct in general was in reality a
regulation of only communicative conduct.  Respondents have adduced no
evidence of that.  Indiana officials have brought many public indecency
prosecutions for activities having no communicative element.  See Bond v.
State, 515 N. E. 2d 856, 857 (Ind. 1987); In re Levinson, 444 N. E. 2d
1175, 1176 (Ind. 1983); Preston v. State, 259 Ind. 353, 354-355, 287 N. E.
2d 347, 348 (1972); Thomas v. State, 238 Ind. 658, 569-660, 154 N. E. 2d
503, 504-505 (1958); Blanton v. State, 533 N. E. 2d 190, 191 (Ind. App.
1989); Sweeney v. State, 486 N. E. 2d 651, 652 (Ind. App. 1985); Thompson
v. State, 482 N. E. 2d 1372, 1373-1374 (Ind. App. 1985); Adims v. State,
461 N. E. 2d 740, 741-742 (Ind. App. 1984); State v. Elliott, 435 N. E. 2d
302, 304 (Ind. App. 1982); Lasko v. State, 409 N. E. 2d 1124, 1126 (Ind.
App. 1980). {2}
    The dissent confidently asserts, post, at 4, that the purpose of
restricting nudity in public places in general is to protect nonconsenting
parties from offense; and argues that since only consenting,
admission-paying patrons see respondents dance, that purpose cannot apply
and the only remaining purpose must relate to the communicative elements of
the performance.  Perhaps the dissenters believe that "offense to others"
ought to be the only reason for restricting nudity in public places
generally, but there is no

basis for thinking that our society has ever shared that Thoreauvian
"you-may-do-what-you-like-so-long-as-it-does

not-injure-someone-else" beau ideal -- much less for thinking that it was
written into the Constitution.  The purpose of Indiana's nudity law would
be violated, I think, if 60,000 fully consenting adults crowded into the
Hoosierdome to display their genitals to one another, even if there were
not an of fended innocent in the crowd.  Our society prohibits, and all
human societies have prohibited, certain activities not because they harm
others but because they are considered, in the traditional phrase, "contra
bonos mores," i. e., immoral.  In American society, such prohibitions have
included, for example, sadomasochism, cockfighting, bestiality, suicide,
drug use, prostitution, and sodomy.  While there may be great diversity of
view on whether various of these prohibitions should exist (though I have
found few ready to abandon, in principle, all of them) there is no doubt
that, absent specific constitutional protection for the conduct involved,
the Constitution does not prohibit them simply because they regulate
"morality."  See Bowers v. Hardwick, 478 U. S. 186, 196 (1986) (upholding
prohibition of private homosexual sodomy enacted solely on "the presumed
belief of a majority of the electorate in [the jurisdiction] that
homosexual sodomy is immoral and unacceptable").  See also Paris Adult
Theatre I v. Slaton, 413 U. S. 49, 68, n. 15 (1973); Dronenburg v. Zech,
239 U. S. App. D. C. 229, 238, and n. 6, 741 F. 2d 1388, 1397, and n. 6
(1984) (opinion of Bork, J.).  The purpose of the Indiana statute, as both
its text and the manner of its enforcement demonstrate, is to enforce the
traditional moral belief that people should not expose their private parts
indiscriminately, regardless of whether those who see them are disedified.
Since that is so, the dissent has no basis for positing that, where only
thoroughly edified adults are present, the purpose must be repression of
communication. {3}
II


    Since the Indiana regulation is a general law not specifically targeted
at expressive conduct, its application to such conduct does not in my view
implicate the First Amendment.    The First Amendment explicitly protects
"the freedom of speech [and] of the press" -- oral and written speech --
not "expressive conduct."  When any law restricts speech, even for a
purpose that has nothing to do with the suppression of communication (for
instance, to reduce noise, see Saia v. New York, 334 U. S. 558, 561 (1948),
to regulate election campaigns, see Buckley v. Valeo, 424 U. S. 1, 16
(1976), or to prevent littering, see Schneider v. State, 308 U. S. 147, 163
(1939)), we insist that it meet the high, First-Amendment standard of
justification.  But virtually every law restricts conduct, and virtually
any prohibited conduct can be performed for an expressive purpose -- if
only expressive of the fact that the actor disagrees with the prohibition.
See, e. g., Florida Free Beaches, Inc. v. Miami, 734 F. 2d 608, 609 (1984)
(nude sunbathers challenging public indecency law claimed their "message"
was that nudity is not indecent).  It cannot reasonably be demanded,
therefore, that every restriction of expression incidentally produced by a
general law regulating conduct pass normal First-Amendment scrutiny, or
even -- as some of our cases have suggested, see e. g., United States v.
O'Brien, 391 U. S. 367, 377 (1968) -- that it be justified by an "important
or substantial" government interest.  Nor do our holdings require such
justification: we have never invalidated the application of a general law
simply because the conduct that it reached was being engaged in for
expressive purposes and the government could not demonstrate a sufficiently
important state interest.
    This is not to say that the First Amendment affords no protection to
expressive conduct.  Where the government prohibits conduct precisely
because of its communicative attributes, we hold the regulation
unconstitutional.  See, e. g., United States v. Eichman, 496 U. S. ---
(1990) (burning flag); Texas v. Johnson, 491 U. S. 397 (1989) (same);
Spence v. Washington, 418 U. S. 405 (1974) (defacing flag); Tinker v. Des
Moines Independent Community School District, 393 U. S. 503 (1969) (wearing
black arm bands); Brown v. Louisiana, 383 U. S. 131 (1966) (participating
in silent sit-in); Stromberg v. California, 283 U. S. 359 (1931) (flying a
red flag). {4}  In each of the foregoing cases, we explicitly found that
suppressing communication was the object of the regulation of conduct.
Where that has not been the case, however -- where suppression of
communicative use of the conduct was merely the incidental effect of
forbidding the conduct for other reasons -- we have allowed the regulation
to stand.  O'Brien, 391 U. S., at 377 (law banning destruction of draft
card upheld in application against cardburning to protest war); FTC v.
Superior Court Trial Lawyers Assn., 493 U. S. 411 (1990) (Sherman Act
upheld in application against restraint of trade to protest low pay); cf.
United States v. Albertini, 472 U. S. 675, 687-688 (1985) (rule barring
petitioner from military base upheld in application against entrance on
base to protest war); Clark v. Community for Creative Non-Violence, 468 U.
S. 288 (1984) (rule barring sleeping in parks upheld in application against
persons engaging in such conduct to dramatize plight of homeless).  As we
clearly expressed the point in Johnson:

"The government generally has a freer hand in restricting expressive
conduct than it has in restricting the written or spoken word.  It may not,
however, proscribe particular conduct because it has expressive elements.
What might be termed the more generalized guarantee of freedom of
expression makes the communicative nature of conduct an inadequate basis
for singling out that conduct for proscription."  491 U. S., at 406.
(internal quotations and citations omitted; emphasis in original).


    All our holdings (though admittedly not some of our discussion) support
the conclusion that "the only First Amendment analysis applicable to laws
that do not directly or indirectly impede speech is the threshold inquiry
of whether the purpose of the law is to suppress communication.  If not,
that is the end of the matter so far as First Amendment guarantees are
concerned; if so, the court then proceeds to determine whether there is
substantial justification for the proscription."  Community for Creative
Non-Violence v. Watt, 227 U. S. App. D. C. 19, 55-56, 703 F. 2d 586,
622-623 (1983) (en banc) (Scalia, J., dissenting), (footnote omitted;
emphasis omitted), rev'd Clark v. Community for Creative Non-Violence, 468
U. S. 288 (1984).  Such a regime ensures that the government does not act
to suppress communication, without requiring that all conduct-restricting
regulation (which means in effect all regulation) survive an enhanced level
of scrutiny.
    We have explicitly adopted such a regime in another First Amendment
context: that of Free Exercise.  In Employment Division, Oregon Dept. of
Human Resources v. Smith, 494 U. S. --- (1990), we held that general laws
not specifically targeted at religious practices did not require heightened
First Amendment scrutiny even though they diminished some people's ability
to practice their religion.  "The government's ability to enforce generally
applicable prohibitions of socially harmful conduct, like its ability to
carry out other aspects of public policy, `cannot depend on measuring the
effects of a governmental action on a religious objector's spiritual
development.' "  Id., at --- [110 S. Ct., at 1603], quoting Lyng v.
Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 451 (1988); see
also Minersville School District v. Gobitis, 310 U. S. 586, 594-595 (1940)
(Frank furter, J.) ("Conscientious scruples have not, in the course of the
long struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or restriction of
religious beliefs.").  There is even greater reason to apply this approach
to the regulation of expressive conduct.  Relatively few can plausibly
assert that their illegal conduct is being engaged in for religious
reasons; but almost anyone can violate almost any law as a means of
expression.  In the one case, as in the other, if the law is not directed
against the protected value (religion or expression) the law must be
obeyed.
III


    While I do not think the plurality's conclusions differ greatly from my
own, I cannot entirely endorse its reasoning.  The plurality purports to
apply to this general law, insofar as it regulates this allegedly
expressive conduct, an intermediate level of First Amendment scrutiny: the
government interest in the regulation must be " `important or substantial,'
" ante, at 6, quoting O'Brien, 391 U. S., at 377.  As I have indicated, I
do not believe such a heightened standard exists.  I think we should avoid
wherever possible, moreover, a method of analysis that requires judicial
assessment of the "importance" of government interests -- and especially of
government interests in various aspects of morality.
    Neither of the cases that the plurality cites to support the
"importance" of the State's interest here, see ante, at 7-8, is in point.
Paris Adult Theatre I v. Slaton, 413 U. S., at 61 and Bowers v. Hardwick,
478 U. S., at 196, did uphold laws prohibiting private conduct based on
concerns of decency and morality; but neither opinion held that those
concerns were particularly "important" or "substantial," or amounted to
anything more than a rational basis for regulation.  Slaton involved an
exhibition which, since it was obscene and at least to some extent public,
was unprotected by the First Amendment, see Roth v. United States, 354 U.
S. 476 (1957); the State's prohibition could therefore be invalidated only
if it had no rational basis.  We found that the State's "right . . . to
maintain a decent society" provided a "legitimate" basis for regulation --
even as to obscene material viewed by consenting adults.  413 U. S., at
59-60.  In Bowers, we held that since homosexual behavior is not a
fundamental right, a Georgia law prohibiting private homosexual intercourse
needed only a rational basis in order to comply with the Due Process
Clause.  Moral opposition to homosexuality, we said, provided that rational
basis.  478 U. S., at 196.  I would uphold the Indiana statute on precisely
the same ground: moral opposition to nudity supplies a rational basis for
its prohibition, and since the First Amendment has no application to this
case no more than that is needed.
*  *  *


    Indiana may constitutionally enforce its prohibition of public nudity
even against those who choose to use public nudity as a means of
communication.  The State is regulating conduct, not expression, and those
who choose to employ conduct as a means of expression must make sure that
the conduct they select is not generally forbidden.  For these reasons, I
agree that the judgment should be reversed.




 
 
 
 
 

 
 
 

------------------------------------------------------------------------------
1
    Respondents assert that the statute cannot be characterized as a
general regulation of conduct, unrelated to suppression of expression,
because one defense put forward in oral argument below by the attorney
general referred to the "message of eroticism" conveyed by respondents.
But that argument seemed to go to whether the statute could
constitutionally be applied to the present performances, rather than to
what was the purpose of the legislation.  Moreover, the State's argument
below was in the alternative: (1) that the statute does not implicate the
First Amendment because it is a neutral rule not directed at expression,
and (2) that the statute in any event survives First Amendment scrutiny
because of the State's interest in suppressing nude barroom dancing.  The
second argument can be claimed to contradict the first (though I think it
does not); but it certainly does not waive or abandon it.  In any case, the
clear purpose shown by both the text and historical use of the statute
cannot be refuted by a litigating statement in a single case.

2
    Respondents also contend that the statute, as interpreted, is not
content-neutral in the expressive conduct to which it applies, since it
allegedly does not apply to nudity in theatrical productions.  See State v.
Bay singer, 272 Ind. 236, 247, 397 N. E. 2d. 580, 587 (1979).  I am not
sure that theater versus non-theater represents a distinction based on
content rather than format, but assuming that it does the argument
nonetheless fails for the reason the plurality describes, ante, at 2-3, n.
1.

3
    The dissent, post, at 3-4, 9, also misunderstands what is meant by the
term "general law."  I do not mean that the law restricts the targeted
conduct in all places at all times.  A law is "general" for the present
purposes if it regulates conduct without regard to whether that conduct is
expressive.  Concededly, Indiana bans nudity in public places, but not
within the privacy of the home.  (That is not surprising, since the common
law offense, and the traditional moral prohibition, runs against public
nudity, not against all nudity.  E. g., 50 Am. Jur. 2d, at 472-474.)  But
that confirms, rather than refutes, the general nature of the law: one may
not go nude in public, whether or not one intends thereby to convey a
message, and similarly one may go nude in private, again whether or not
that nudity is expressive.

4
    It is easy to conclude that conduct has been forbidden because of its
communicative attributes when the conduct in question is what the Court has
called "inherently expressive," and what I would prefer to call
"conventionally expressive" -- such as flying a red flag.  I mean by that
phrase (as I assume the Court means by "inherently expressive") conduct
that is normally engaged in for the purpose of communicating an idea, or
perhaps an emotion, to someone else.  I am not sure whether dancing fits
that description, see Dallas v. Stanglin, 490 U. S. 19, 24 (1989) (social
dance group "do[es] not involve the sort of expressive association that the
First Amendment has been held to protect").  But even if it does, this law
is directed against nudity, not dancing.  Nudity is not normally engaged in
for the purpose of communicating an idea or an emotion.





Subject: 90-26 -- CONCUR, BARNES v. GLEN THEATRE, INC.

 


    SUPREME COURT OF THE UNITED STATES


No. 90-26



MICHAEL BARNES, PROSECUTING ATTORNEY OF
ST. JOSEPH COUNTY, INDIANA, et al. v.
GLEN THEATRE, INC., et al.


on writ of certiorari to the united states court of appeals for the seventh
circuit

[June 21, 1991]



    Justice Souter, concurring in the judgment.

    Not all dancing is entitled to First Amendment protection as expressive
activity.  This Court has previously categorized ballroom dancing as beyond
the Amendment's protection, Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989),
and dancing as aerobic exercise would likewise be outside the First
Amendment's concern.  But dancing as a performance directed to an actual or
hypothetical audience gives expression at least to generalized emotion or
feeling, and where the dancer is nude or nearly so the feeling expressed,
in the absence of some contrary clue, is eroticism, carrying an endorsement
of erotic experience.  Such is the expressive content of the dances
described in the record.
    Although such performance dancing is inherently expressive, nudity per
se is not.  It is a condition, not an activity, and the voluntary
assumption of that condition, without more, apparently expresses nothing
beyond the view that the condition is somehow appropriate to the
circumstances.  But every voluntary act implies some such idea, and the
implication is thus so common and minimal that calling all voluntary
activity expressive would reduce the concept of expression to the point of
the meaningless.  A search for some expression beyond the minimal in the
choice to go nude will often yield nothing: a person may choose nudity, for
example, for maximum sunbathing.  But when nudity is combined with
expressive activity, its stimulative and attractive value certainly can
enhance the force of expression, and a dancer's acts in going from clothed
to nude, as in a strip-tease, are integrated into the dance and its
expressive function.  Thus I agree with the plurality and the dissent that
an interest in freely engaging in the nude dancing at issue here is subject
to a degree of First Amendment protection.
    I also agree with the plurality that the appropriate analysis to
determine the actual protection required by the First Amendment is the
four-part enquiry described in United States v. O'Brien, 391 U. S. 367
(1968), for judging the limits of appropriate state action burdening
expressive acts as distinct from pure speech or representation.  I
nonetheless write separately to rest my concurrence in the judgment, not on
the possible sufficiency of society's moral views to justify the
limitations at issue, but on the State's substantial interest in combating
the secondary effects of adult entertainment establishments of the sort
typified by respondents' establishments.
    It is, of course, true that this justification has not been articulated
by Indiana's legislature or by its courts.  As the plurality observes,
"Indiana does not record legislative history, and the state's highest court
has not shed additional light on the statute's purpose," ante, at 6.  While
it is certainly sound in such circumstances to infer general purposes "of
protecting societal order and morality . . . from [the statute's] text and
history," ibid., I think that we need not so limit ourselves in identifying
the justification for the legislation at issue here, and may legitimately
consider petitioners' assertion that the statute is applied to nude dancing
because such dancing "encourag[es] prostitution, increas[es] sexual
assaults, and attract[s] other criminal activity."  Brief for Petitioners
37.
    This asserted justification for the statute may not be ignored merely
because it is unclear to what extent this purpose motivated the Indiana
Legislature in enacting the statute.  Our appropriate focus is not an
empirical enquiry into the actual intent of the enacting legislature, but
rather the existence or not of a current governmental interest in the
service of which the challenged application of the statute may be
constitutional.  Cf. McGowan v. Maryland, 366 U. S. 420 (1961).  At least
as to the regulation of expressive conduct, {1} "[w]e decline to void [a
statute] essentially on the ground that it is unwise legislation which [the
legislature] had the undoubted power to enact and which could be reenacted
in its exact form if the same or another legislator made a `wiser' speech
about it."  O'Brien, supra, at 384.  In my view, the interest asserted by
petitioners in preventing prostitution, sexual assault, and other criminal
activity, although presumably not a justification for all applications of
the statute, is sufficient under O'Brien to justify the State's enforcement
of the statute against the type of adult entertainment at issue here.
    At the outset, it is clear that the prevention of such evils falls
within the constitutional power of the State, which satisfies the first
O'Brien criterion.  See id., at 377.  The second O'Brien prong asks whether
the regulation "furthers an important or substantial governmental
interest."  Ibid.  The asserted state interest is plainly a substantial
one; the only question is whether prohibiting nude dancing of the sort at
issue here "furthers" that interest.  I believe that our cases have
addressed this question sufficiently to establish that it does.
    In Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), we upheld a
city's zoning ordinance designed to prevent the occurrence of harmful
secondary effects, including the crime associated with adult entertainment,
by protecting approximately 95% of the city's area from the placement of
motion picture theaters emphasizing " `matter depicting, describing or
relating to "specified sexual activities" or "specified anatomical areas" .
. . for observation by patrons therein.' "  Id., at 44.  Of particular
importance to the present enquiry, we held that the city of Renton was not
compelled to justify its restrictions by studies specifically relating to
the problems that would be caused by adult theaters in that city.  Rather,
"Renton was entitled to rely on the experiences of Seattle and other
cities," id., at 51, which demonstrated the harmful secondary effects
correlated with the presence "of even one [adult] theater in a given
neighborhood."  Id., at 50; cf. Young v. American Mini Theatres, Inc., 427
U. S. 50, 71, n. 34 (1976) (legislative finding that "a concentration of
`adult' movie theaters causes the area to deteriorate and become a focus of
crime"); California v. LaRue, 409 U. S. 109, 111 (1972) (administrative
findings of criminal activity associated with adult entertainment).
    The type of entertainment respondents seek to provide is plainly of the
same character as that at issue in Renton, American Mini Theatres, and
LaRue.  It therefore is no leap to say that live nude dancing of the sort
at issue here is likely to produce the same pernicious secondary effects as
the adult films displaying "specified anatomical areas" at issue in Renton.
Other reported cases from the Circuit in which this litigation arose
confirm the conclusion.  See, e. g., United States v. Marren, 890 F. 2d
924, 926 (CA7 1989) (prostitution associated with nude dancing
establishment); United States v. Doerr, 886 F. 2d 944, 949 (CA7 1989)
(same).  In light of Renton's recognition that legislation seeking to
combat the secondary effects of adult entertainment need not await
localized proof of those effects, the State of Indiana could reasonably
conclude that forbidding nude entertainment of the type offered at the
Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest
in preventing prostitution, sexual assault, and associated crimes.  Given
our recognition that "society's interest in protecting this type of
expression is of a wholly different, and lesser, magnitude than the
interest in untrammeled political debate," American Mini Theatres, supra,
at 70, I do not believe that a State is required affirmatively to undertake
to litigate this issue repeatedly in every case.  The statute as applied to
nudity of the sort at issue here therefore satisfies the second prong of
O'Brien. {2}
    The third O'Brien condition is that the governmental interest be
"unrelated to the suppression of free expression," 391 U. S., at 377, and,
on its face, the governmental interest in combating prostitution and other
criminal activity is not at all inherently related to expression.  The
dissent contends, however, that Indiana seeks to regulate nude dancing as
its means of combating such secondary effects "because . . . creating or
emphasizing [the] thoughts and ideas [expressed by nude dancing] in the
minds of the spectators may lead to increased prostitution," post, at 6,
and that regulation of expressive conduct because of the fear that the
expression will prove persuasive is inherently related to the suppression
of free expression.  Ibid.
    The major premise of the dissent's reasoning may be correct, but its
minor premise describing the causal theory of Indiana's regulatory
justification is not.  To say that pernicious secondary effects are
associated with nude dancing establishments is not necessarily to say that
such effects result from the persuasive effect of the expression inherent
in nude dancing.  It is to say, rather, only that the effects are
correlated with the existence of establishments offering such dancing,
without deciding what the precise causes of the correlation actually are.
It is possible, for example, that the higher incidence of prostitution and
sexual assault in the vicinity of adult entertainment locations results
from the concentration of crowds of men predisposed to such activities, or
from the simple viewing of nude bodies regardless of whether those bodies
are engaged in expression or not.  In neither case would the chain of
causation run through the persuasive effect of the expressive component of
nude dancing.
    Because the State's interest in banning nude dancing results from a
simple correlation of such dancing with other evils, rather than from a
relationship between the other evils and the expressive component of the
dancing, the interest is unrelated to the suppression of free expression.
Renton is again persuasive in support of this conclusion.  In Renton, we
held that an ordinance that regulated adult theaters because the presence
of such theaters was correlated with secondary effects that the local
government had an interest in regulating was content-neutral (a
determination similar to the "unrelated to the suppression of free
expression" determination here, see Clark v. Community for Creative
Non-Violence, 468 U. S. 288, 298, and n. 8 (1984)) because it was
"justified without reference to the content of the regulated speech."  475
U. S., at 48 (emphasis in original).  We reached this conclusion without
need to decide whether the cause of the correlation might have been the
persuasive effect of the adult films that were being regulated.  Similarly
here, the "secondary effects" justification means that enforcement of the
Indiana statute against nude dancing is "justified without reference to the
content of the regulated [expression]," ibid. (emphasis omitted), which is
sufficient, at least in the context of sexually explicit expression, {3} to
satisfy the third prong of the O'Brien test.
    The fourth O'Brien condition, that the restriction be no greater than
essential to further the governmental interest, requires little discussion.
Pasties and a G-string moderate the expression to some degree, to be sure,
but only to a degree.  Dropping the final stitch is prohibited, but the
limitation is minor when measured against the dancer's remaining capacity
and opportunity to express the erotic message.  Nor, so far as we are told,
is the dancer or her employer limited by anything short of obscenity laws
from expressing an erotic message by articulate speech or representational
means; a pornographic movie featuring one of respondents, for example, was
playing nearby without any interference from the authorities at the time
these cases arose.
    Accordingly, I find O'Brien satisfied and concur in the judgment.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    Cf., e. g., Edwards v. Aguillard, 482 U. S. 578 (1987) (striking down
state statute on Establishment Clause grounds due to impermissible
legislative intent).

2
    Because there is no overbreadth challenge before us, we are not called
upon to decide whether the application of the statute would be valid in
other contexts.  It is enough, then, to say that the secondary effects
rationale on which I rely here would be open to question if the State were
to seek to enforce the statute by barring expressive nudity in classes of
productions that could not readily be analogized to the adult films at
issue in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986).  It is
difficult to see, for example, how the enforcement of Indiana's statute
against nudity in a production of "Hair" or "Equus" somewhere other than an
"adult" theater would further the State's interest in avoiding harmful
secondary effects, in the absence of evidence that expressive nudity
outside the context of Renton-type adult entertainment was correlated with
such secondary effects.

3
    I reach this conclusion again mindful, as was the Court in Renton, that
the protection of sexually explicit expression may be of lesser societal
importance than the protection of other forms of expression.  See Renton,
supra, at 49, and n. 2, citing Young v. American Mini Theatres, Inc., 427
U. S. 50, 70 (1976).





Subject: 90-26 -- DISSENT, BARNES v. GLEN THEATRE, INC.

 


    SUPREME COURT OF THE UNITED STATES


No. 90-26



MICHAEL BARNES, PROSECUTING ATTORNEY OF
ST. JOSEPH COUNTY, INDIANA, et al. v.
GLEN THEATRE, INC., et al.


on writ of certiorari to the united states court of appeals for the seventh
circuit

[June 21, 1991]



    Justice White, with whom Justice Marshall, Justice Blackmun, and
Justice Stevens join, dissenting.
    The first question presented to us in this case is whether nonobscene
nude dancing performed as entertainment is expressive conduct protected by
the First Amendment.  The Court of Appeals held that it is, observing that
our prior decisions permit no other conclusion.  Not surprisingly, then,
the Court now concedes that "nude dancing of the kind sought to be
performed here is expressive conduct within the outer perimeters of the
First Amendment . . . ."  Ante, at 4.  This is no more than recognizing, as
the Seventh Circuit observed, that dancing is an ancient art form and
"inherently embodies the expression and communication of ideas and
emotions."  Miller v. Civil City of South Bend, 904 F. 2d 1081, 1087 (1990)
(en banc). {1}
    Having arrived at the conclusion that nude dancing performed as
entertainment enjoys First Amendment protection, the Court states that it
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."  Ante, at 4.  For
guidance, the Court turns to United States v. O'Brien, 391 U. S. 367
(1968), which held that expressive conduct could be narrowly regulated or
forbidden in pursuit of an important or substantial governmental interest
that is unrelated to the content of the expression.  The Court finds that
the Indiana statute satisfies the O'Brien test in all respects.
    The Court acknowledges that it is impossible to discern the exact state
interests which the Indiana legislature had in mind when it enacted the
Indiana statute, but the Court nonetheless concludes that it is clear from
the statute's text and history that the law's purpose is to protect
"societal order and morality."  Ante, at 6.  The Court goes on to conclude
that Indiana's statute "was enacted as a general prohibition," ante, at 7
(emphasis added), on people appearing in the nude among strangers in public
places.  The Court then points to cases in which we upheld legislation
based on the State's police power, and ultimately concludes that the
Indiana statute "furthers a substantial government interest in protecting
order and morality."  Ante, at 8.  The Court also holds that the basis for
banning nude dancing is unrelated to free expression and that it is
narrowly drawn to serve the State's interest.
    The Court's analysis is erroneous in several respects.  Both the Court
and Justice Scalia in his concurring opinion overlook a fundamental and
critical aspect of our cases upholding the States' exercise of their police
powers.  None of the cases they rely upon, including O'Brien and Bowers v.
Hardwick, 478 U. S. 186 (1986), involved anything less than truly general
proscriptions on individual conduct.  In O'Brien, for example, individuals
were prohibited from destroying their draft cards at any time and in any
place, even in completely private places such as the home.  Likewise, in
Bowers, the State prohibited sodomy, regardless of where the conduct might
occur, including the home as was true in that case.  The same is true of
cases like Employment Division, Oregon Dept. of Human Resources v. Smith,
494 U. S. --- (1990), which, though not applicable here because it did not
involve any claim that the peyote users were engaged in expressive
activity, recognized that the State's interests in preventing the use of
illegal drugs extends even into the home.  By contrast, in this case
Indiana does not suggest that its statute applies to, or could be applied
to, nudity wherever it occurs, including the home.  We do not understand
the Court or Justice Scalia to be suggesting that Indiana could
constitutionally enact such an intrusive prohibition, nor do we think such
a suggestion would be tenable in light of our decision in Stanley v.
Georgia, 394 U. S. 557 (1969), in which we held that States could not
punish the mere possession of obscenity in the privacy of one's own home.
    We are told by the Attorney General of Indiana that, in State v.
Baysinger, 272 Ind. 236, 397 N. E. 2d 580 (1979), the Indiana Supreme Court
held that the statute at issue here cannot and does not prohibit nudity as
a part of some larger form of expression meriting protection when the
communication of ideas is involved.  Brief for Petitioners 25, 30-31; Reply
Brief for Petitioners 9-11.  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.  Id., at 11-12.
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."  App.
19 (affidavit of Sgt. Timothy Corbett).
    Thus, the Indiana statute is not a general prohibition of the type 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 is not sufficient justification for a statute which
concededly reaches a significant amount of protected expressive activity.
Instead, in 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 which is
regulated and nonex pressive conduct of the same type 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 for doing so 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.  This
is why Clark v. Community for Creative NonViolence, 468 U. S. 288 (1984),
is of no help to the State: "In Clark . . . the damage to the parks was the
same whether the sleepers were camping out for fun, were in fact homeless,
or wished by sleeping in the park to make a symbolic statement on behalf of
the homeless."  904 F. 2d, at 1103 (Posner, J., concurring).  That cannot
be said in this case: the perceived damage to the public interest caused by
appearing nude on the streets or in the parks, as I have said, is not what
the State seeks to avoid in preventing nude dancing in theaters and
taverns.  There the perceived harm is the communicative aspect of the
erotic dance.  As the State now tells us, and as Justice Souter agrees, the
State's goal in applying what it describes as its "content neutral" statute
to the nude dancing in this case is "deterrence of prostitution, sexual
assaults, criminal activity, degradation of women, and other activities
which break down family structure."  Reply Brief for Petitioners 11.  The
attainment of these goals, however, depends on preventing an expressive
activity.
    The Court nevertheless holds that the third requirement of the O'Brien
test, that the governmental interest be unrelated to the suppression of
free expression, is satisfied because in applying the statute to nude
dancing, the State is not "proscribing nudity because of the erotic message
conveyed by the dancers."  Ante, at 9.  The Court suggests that this is so
because the State does not ban dancing that sends an erotic message; it is
only nude erotic dancing that is forbidden.  The perceived evil is not
erotic dancing but public nudity, which may be prohibited despite any
incidental impact on expressive activity.  This analysis is transparently
erroneous.  In arriving at its conclusion, the Court concedes that nude
dancing conveys an erotic message and concedes that the message would be
muted if the dancers wore pasties and Gstrings.  Indeed, the emotional or
erotic impact of the dance is intensified by the nudity of the performers.
As Judge Posner argued in his thoughtful concurring opinion in the Court of
Appeals, the nudity of the dancer is an integral part of the emotions and
thoughts that a nude dancing performance evokes.  Id., at 1090-1098.  The
sight of a fully clothed, or even a partially clothed, dancer generally
will have a far different impact on a spectator than that of a nude dancer,
even if the same dance is performed.  The nudity is itself an expressive
component of the dance, not merely incidental "conduct."  We have
previously pointed out that " `[n]udity alone' does not place otherwise
protected material outside the mantle of the First Amendment."  Schad v.
Mt. Ephraim, 452 U. S. 61, 66 (1981).
    This being the case, it cannot be that the statutory prohibition is
unrelated to expressive conduct.  Since the State permits the dancers to
perform if they wear pasties and Gstrings but forbids nude dancing, it is
precisely because of the distinctive, expressive content of the nude
dancing performances at issue in this case that the State seeks to apply
the statutory prohibition.  It is only because nude dancing performances
may generate emotions and feelings of eroticism and sensuality among the
spectators that the State seeks to regulate such expressive activity,
apparently on the assumption that creating or emphasizing such thoughts and
ideas in the minds of the spectators may lead to increased prostitution and
the degradation of women.  But generating thoughts, ideas, and emotions is
the essence of communication.  The nudity element of nude dancing
performances cannot be neatly pigeonholed as mere "conduct" independent of
any expressive component of the dance. {2}
    That fact dictates the level of First Amendment protection to be
accorded the performances at issue here.  In Texas v. Johnson, 491 U. S.
397, 411-412 (1989), the Court observed: "Whether Johnson's treatment of
the flag violated Texas law thus depended on the likely communicative
impact of his expressive conduct. . . .  We must therefore subject the
State's asserted interest in preserving the special symbolic character of
the flag to `the most exacting scrutiny.'  Boos v. Barry, 485 U. S. [312],
321 [(1980)]."  Content based restrictions "will be upheld only if narrowly
drawn to accomplish a compelling governmental interest."  United States v.
Grace,  461 U. S. 171, 177 (1983); Sable Communications of California, Inc.
v. FCC,  492 U. S. 115, 126 (1989).  Nothing could be clearer from our
cases.
    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."  Cohen v. California, 403 U. S. 15, 25 (1971).
"[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."  Salem Inn, Inc. v. Frank,
501 F. 2d 18, 21, n. 3 (CA2 1974), aff'd in part, Doran v. Salem Inn, Inc.,
422 U. S. 922 (1975).
    The Court and Justice Souter do not go beyond saying that the state
interests asserted here are important and substantial.  But even if there
were compelling interests, the Indiana statute is not narrowly drawn.  If
the State is genuinely concerned with prostitution and associated evils, as
Justice Souter seems to think, or the type of conduct that was occurring in
California v. LaRue, 409 U. S. 109 (1972), it can adopt restrictions that
do not interfere with the expressiveness of nonobscene nude dancing
performances.  For instance, the State could perhaps require that, while
performing, nude performers remain at all times a certain minimum distance
from spectators, that nude entertainment be limited to certain hours, or
even that establishments providing such entertainment be dispersed
throughout the city.  Cf. Renton v. Playtime Theatres, Inc., 475 U. S. 31
(1986).  Likewise, the State clearly has the authority to criminalize
prostitution and obscene behavior.  Banning an entire category of
expressive activity, however, generally does not satisfy the narrow
tailoring requirement of strict First Amendment scrutiny.  See Frisby v.
Schultz, 487 U. S. 474, 485 (1988).  Furthermore, if nude dancing in
barrooms, as compared with other establishments, is the most worrisome
problem, the State could invoke its Twenty-first Amendment powers and
impose appropriate regulation.  New York State Liquor Authority v.
Bellanca, 452 U. S. 714 (1981) (per curiam); California v. LaRue, supra.
    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.
    Justice Scalia's views are similar to those of the Court and suffer
from the same defects.  The Justice asserts that a general law barring
specified conduct does not implicate the First Amendment unless the purpose
of the law is to suppress the expressive quality of the forbidden conduct,
and that, absent such purpose, First Amendment protections are not
triggered simply because the incidental effect of the law is to proscribe
conduct that is unquestionably expressive.  Cf. Community for Creative
Non-Violence v. Watt, 227 U. S. App. D. C 19, 703 F. 2d 586, 622-623 (1983)
(Scalia, J., dissenting).  The application of the Justice's proposition to
this case is simple to state: The statute at issue is a general law banning
nude appearances in public places, including barrooms and theaters.  There
is no showing that the purpose of this general law was to regulate
expressive conduct; hence, the First Amendment is irrelevant and nude
dancing in theaters and barrooms may be forbidden, irrespective of the
expressiveness of the dancing.
    As I have pointed out, however, the premise for the Justice's position
-- that the statute is a general law of the type our cases contemplate --
is nonexistent in this case.  Reference to Justice Scalia's own
hypothetical makes this clear.  We agree with Justice Scalia that the
Indiana statute would not permit 60,000 consenting Hoosiers to expose
themselves to each other in the Hoosierdome.  No one can doubt, however,
that those same 60,000 Hoosiers would be perfectly free to drive to their
respective homes all across Indiana and, once there, to parade around,
cavort, and revel in the nude for hours in front of relatives and friends.
It is difficult to see why the State's interest in morality is any less in
that situation, especially if, as Justice Scalia seems to suggest, nudity
is inherently evil, but clearly the statute does not reach such activity.
As we pointed out earlier, the State's failure to enact a truly general
proscription requires closer scrutiny of the reasons for the distinctions
the State has drawn.  See infra, at 4.
    As explained previously, the purpose of applying the law to the nude
dancing performances in respondents' establishments is to prevent their
customers from being exposed to the distinctive communicative aspects of
nude dancing.  That being the case, Justice Scalia's observation is fully
applicable here: "Where government prohibits conduct precisely because of
its communicative attributes, we hold the regulation unconstitutional."
Ante, at 5-6.
    The O'Brien decision does not help Justice Scalia.  Indeed, his
position, like the Court's, would eviscerate the O'Brien test.  Employment
Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. --- (1990),
is likewise not on point.  The Indiana law, as applied to nude dancing,
targets the expressive activity itself; in Indiana nudity in a dancing
performance is a crime because of the message such dancing communicates.
In Smith, the use of drugs was not criminal because the use was part of or
occurred within the course of an otherwise protected religious ceremony,
but because a general law made it so and was supported by the same
interests in the religious context as in others.
    Accordingly, I would affirm the judgment of the Court of Appeals, and
dissent from this Court's judgment.
 
 
 
 
 
 

------------------------------------------------------------------------------
1
    Justice Scalia suggests that performance dancing is not inherently
expressive activity, see ante, at 6, n. 3, but the Court of Appeals has the
better view: "Dance has been defined as `the art of moving the body in a
rhythmical way, usually to music, to express an emotion or idea, to narrate
a story, or simply to take delight in the movement itself.'  16 The New
Encyclopedia Britannica 935 (1989).  Inherently, it is the communication of
emotion or ideas.  At the root of all `[t]he varied manifestations of
dancing . . . lies the common impulse to resort to movement to externalise
states which we cannot externalise by rational means.  This is basic
dance.'  Martin, J. Introduction to the Dance (1939).  Aristotle recognized
in Poetics that the purpose of dance is `to represent men's character as
well as what they do and suffer.'  The raw communicative power of dance was
noted by the French poet Stephane Mallarme who declared that the dancer
`writing with her body . . . suggests things which the written work could
express only in several paragraphs of dialogue or descriptive prose.' "
904 F. 2d at, 1085-1086.  Justice Scalia cites Dallas v. Stanglin, 490 U.
S. 19, (1989), but that decision dealt with social dancing, not performance
dancing; and the submission in that case, which we rejected, was not that
social dancing was an expressive activity but that plaintiff's
associational rights were violated by restricting admission to dance halls
on the basis of age.  The Justice also asserts that even if dancing is
inherently expressive, nudity is not.  The statement may be true, but it
tells us nothing about dancing in the nude.

2
    Justice Souter agrees with the Court that the third requirement of the
O'Brien test is satisfied, but only because he is not certain that there is
a causal connection between the message conveyed by nude dancing and the
evils which the State is seeking to prevent.  See ante, at ---.  Justice
Souter's analysis is at least as flawed as that of the Court.  If Justice
Souter is correct that there is no causal connection between the message
conveyed by the nude dancing at issue here and the negative secondary
effects that the State desires to regulate, the State does not have even a
rational basis for its absolute prohibition on nude dancing that is
admittedly expressive.  Furthermore, if the real problem is the
"concentration of crowds of men predisposed to the" designated evils, ante,
at ---, then the First Amendment requires that the State address that
problem in a fashion that does not include banning an entire category of
expressive activity.  See Renton v. Playtime Theatres, Inc., 475 U. S. 31
(1986).
