Inc. Barnes v. Glen Theatre

Petitioner
Michael Barnes, Prosecuting Attorney of St. Joseph County, Indiana
Respondent
Glen Theatre, Inc.
Petitioner's Claim
Nude dancing is a form of expressive conduct that is not protected by the First Amendment.
Chief Lawyer for Petitioner
Wayne E. Uhl, Deputy Attorney General of Indiana
Chief Lawyer for Respondent
Bruce J. Ennis, Jr.
Justices for the Court
Anthony M. Kennedy, Sandra Day O'Connor, William H. Rehnquist (writing for the Court), Antonin Scalia, David H. Souter
Justices Dissenting
Harry A. Blackmun, Thurgood Marshall, John Paul Stevens, Byron R. White
Place
Washington, D.C.
Date of Decision
21 June 1991
Decision
Although they were unable to agree upon an opinion, a majority of the justices upheld the constitutionality of an Indiana statute outlawing public nudity,as the law applied to nude dancing performed as entertainment.
Significance
Barnes v. Glen Theatre, Inc. marked a retreat from the Court's previous view that nude dancing, to the extent it is not obscene, is a form of freeexpression protected by the First Amendment.
Two South Bend, Indiana, establishments wanted to provide totally nude dancing as entertainment. They brought suit in federal trial court to challenge a state law outlawing all public nudity. The law, as written, would require thedancers at the Glen Theatre to wear what amounted to "pasties" and "G-strings," requirements that would, the Glen Theatre claimed, violate the dancers' First Amendment right to free expression.
When Glen Theatre lost its case in the U.S. District Court for the Northern District of Indiana, it went on to appeal this decision in the U.S. Court of Appeals for the Seventh Circuit, which overturned the trial court's decision.The state prosecutor in turn petitioned the U.S. Supreme Court for a review of the appellate court's decision.
In the opinion of Chief Justice Rehnquist, who announced the judgment of theCourt, the Indiana statute did not violate the First Amendment. Rehnquist stated that the intent of the law was not to prohibit nude dancing, but to prevent public nudity, which has nothing to do with free expression. The effects of the statute on the type of nude dancing proposed by Glen Theatre were only"incidental," and the "pasties" and "G-strings" requirements were not excessively burdensome. Therefore, the Indiana law was a permissible "time, place, or manner" restriction that did not focus on content and thus did not violatethe First Amendment, which provided only minimal protection for nude dancing.
A decade earlier, in Schad v. Borough of Mount Ephraim (1981), the Supreme Court had held that nude barroom dancing was protected expressive conduct. But the statute in question in Schad had not been addressed to public nudity, merely to nude live entertainment. It could, therefore, be used tooutlaw nudity in other forms of recreation, and the Court found it to be phrased in an overly broad fashion and therefore unconstitutional. The distinction between that law and the Indiana statute, according to Justice Rehnquist,was that while the former specifically addressed expression, the latter was apermissible exercise of a state's traditional police power, which authorizesregulation of activities as they affect the public's health, safety, and morals.
Dissenters Vote to Uphold Nude Dancing
Justice White's dissenting opinion, in which Justices Marshall, Blackmun, andStevens joined, pointed out that far from being merely a restriction on "time, place, or manner," the Indiana law was intended to prevent customers in establishments such as Glen Theatre from being exposed to the sensuality and eroticism that were the essence of the dancers' expression.

The sight of a fully clothed, or even partially clothed, dancer generally will havea far different impact on the 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." . . . It cannot be said that the statutory prohibition is unrelated to expressive conduct.

The "time, place, or manner" rule is a doctrine that permits government to control the incidental effects of speech (or, in its broader sense, expression), so long as the restrictions are neutral as to the content of the expressionand do not excessively burden the articulation of its ideas. While the chiefjustice's argument seemed to address the right of individual states to govern themselves, Justice White's opinion was concerned with the intersection ofobscenity and the First Amendment.
Related Cases

• United States v. O'Brien, 391 U.S. 367 (1968).
  
• Paris Adult Theatre v. Slaton, 413 U.S. 49 (1973).
  
• Doran v. Salem, Inc., 422 U.S. 922 (1975).
  
• Renton v. Playtime Theatre, Inc., 475 U.S. 41 (1986).
  
• Bowers v. Hardwick, 478 U.S. 186 (1986).
  
• Dallas v. Stanglin, 490 U.S. 19 (1989).

Nude Dancing--Form of Expression
Is nude dancing the type of expression with which the First Amendment is concerned? Does it constitute a form of protected symbolic speech or is it merelyconduct without any expressive quality?
Proponents describe striptease as an ensemble of dance, music, and disrobing.Taken together the elements express erotic emotion and make a symbolic statement. Striptease conveys meaning and expression just as Balanchine's balletsand Titian's painting, Venus with a Mirror. Nude dancing is neither legally obscene nor forced on a captive audience. Therefore, if nude dancing isnot protected, much of what is called art could also be left without expressive protection. Such aesthetic or personal value judgements should not play arole in setting First Amendment boundaries.
Opponents argue nude dancing is not performed by trained professional dancersand is generally not choreographed. The music is canned and dancers often sell drinks to customers afterward. Therefore, the expressive elements of the performance are phony and do not relay a message. The First Amendment protectsexpressions of ideas and is degraded when interpreted to protect the raw conduct of barroom striptease. Additionally, protecting nude dancing supports immorality and the secondary social harms which follow it.
Sources
Blasi, Vincent. Six Conservatives in Search of the First Amendment: The Revealing Case of Nude Dancing. William and Mary Law Review, Vol. 33, 1992,pp. 611-665.