Inc. Barnes v. Glen Theatre - Dissenters Vote To Uphold Nude Dancing

Justice White's dissenting opinion, in which Justices Marshall, Blackmun, and Stevens 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 have a 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 expression and do not excessively burden the articulation of its ideas. While the chief justice's argument seemed to address the right of individual states to govern themselves, Justice White's opinion was concerned with the intersection of obscenity and the First Amendment.