Inc. Barnes v. Glen Theatre

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 merely conduct 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 ballets and Titian's painting, Venus with a Mirror. Nude dancing is neither legally obscene nor forced on a captive audience. Therefore, if nude dancing is not protected, much of what is called art could also be left without expressive protection. Such aesthetic or personal value judgements should not play a role in setting First Amendment boundaries.

Opponents argue nude dancing is not performed by trained professional dancers and 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 protects expressions 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.