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

Legal Principle at Issue

Whether a state may constitutionally prohibit nude dancing in public places.

Action

Reversed. Petitioning party received a favorable disposition.

Facts/Syllabus

An Indiana public indecency statute prohibits, among other things, appearing nude in public. Two adult entertainment establishments and an erotic dancer sued to prevent enforcement of this statute as it applied to nude dancing. The trial court eventually held that nude dancing is not expressive activity protected by the First Amendment and upheld the statute. The Seventh Circuit Court of Appeals reversed, holding that non-obscene nude dancing is entitled to First Amendment protection.

When speech and non-speech elements are combined in the same course of conduct (such as burning a draft card), the government can regulate that conduct if (1) the regulation is within the constitutional power of the government, (2) the regulation furthers a substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on the speech element of the conduct is not greater than necessary to further the substantial governmental interest. United States v. O'Brien, 391 U.S. 367 (1968).

Importance of Case

The Court was unwilling to find any significant expressive conduct in nude dancing, which seemed contrary to its holdings in earlier cases such as Doran v. Salem Inn, Inc., 422 U.S. 922 (1975), and Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981).

For slightly different reasons, four members of the Court held that the Indiana statute passed the O'Brien test. Three of the members concluded that the governmental interest in protecting morality was unrelated to the suppression of any expression; in their view, the statute was designed to prohibit public nudity, not expressive dancing. Justice Souter, on the other hand, found that the governmental interest at issue was to combat the secondary effects of adult entertainment, such as increased crime and a decrease in surrounding property values, and reasoned that this interest also was unrelated to the suppression of expression. The fifth member of the majority, Justice Scalia, reasoned that the Indiana law was directed only at conduct and not at expression and that no First Amendment analysis was necessary. The dissent argued that nudity can be an expressive component of a dance and not merely incidental conduct and that Indiana's interest in banning nude dancing therefore was directly related to the suppression of expression.