Inc. Barnes v. Glen Theatre

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 free expression 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 the dancers 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 the Court, 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 violate the 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 to outlaw 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 a permissible exercise of a state's traditional police power, which authorizes regulation of activities as they affect the public's health, safety, and morals.