The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_26/90_26.c1

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Subject: 90-26 -- CONCUR, BARNES v. GLEN THEATRE, INC.




    SUPREME COURT OF THE UNITED STATES


No. 90-26



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


on writ of certiorari to the united states court of appeals for the seventh
circuit

[June 21, 1991]




    Justice Scalia, concurring in the judgment.

    I agree that the judgment of the Court of Appeals must be reversed.  In
my view, however, the challenged regulation must be upheld, not because it
survives some lower level of First-Amendment scrutiny, but because, as a
general law regulating conduct and not specifically directed at expression,
it is not subject to First-Amendment scrutiny at all.
I


    Indiana's public indecency statute provides:
"(a) A person who knowingly or intentionally, in a public place:
    "(1) engages in sexual intercourse;
    "(2) engages in deviate sexual conduct;
    "(3) appears in a state of nudity; or
    "(4) fondles the genitals of himself or another person;
commits public indecency, a Class A misdemeanor.
"(b) `Nudity' means the showing of the human male or female genitals, pubic
area, or buttocks with less than a fully opaque covering, the showing of
the female breast with less than a fully opaque covering of any part of the
nipple, or the showing of covered male genitals in a discernibly turgid
state."  Ind. Code MDRV 35-45-4-1 (1988).

On its face, this law is not directed at expression in particular.  As
Judge Easterbrook put it in his dissent below: "Indiana does not regulate
dancing.  It regulates public nudity. . . .  Almost the entire domain of
Indiana's statute is unrelated to expression, unless we view nude beaches
and topless hot dog vendors as speech."  Miller v. Civil City of South
Bend, 904 F. 2d 1081, 1120 (CA7 1990) (Easterbrook, J., dissenting).  The
intent to convey a "message of eroticism" (or any other message) is not a
necessary element of the statutory offense of public indecency; nor does
one commit that statutory offense by conveying the most explicit "message
of eroticism," so long as he does not commit any of the four specified acts
in the process. {1}
    Indiana's statute is in the line of a long tradition of laws against
public nudity, which have never been thought to run afoul of traditional
understanding of "the freedom of speech."  Public indecency -- including
public nudity -- has long been an offense at common law.  See 50 Am. Jur.
2d 449, 472-474 (1970); 93 A. L. R. 996, 997-998 (1934); Winters v. New
York, 333 U. S. 507, 515 (1948).  Indiana's first public nudity statute,
Rev. Laws of Indiana, ch. 26, MDRV 60 (1831), predated by many years the
appearance of nude barroom dancing.  It was general in scope, directed at
all public nudity, and not just at public nude expression; and all
succeeding statutes, down to the present one, have been the same.  Were it
the case that Indiana in practice targeted only expressive nudity, while
turning a blind eye to nude beaches and unclothed purveyors of hot dogs and
machine tools, see Miller, 904 F. 2d, at 1120, 1121, it might be said that
what posed as a regulation of conduct in general was in reality a
regulation of only communicative conduct.  Respondents have adduced no
evidence of that.  Indiana officials have brought many public indecency
prosecutions for activities having no communicative element.  See Bond v.
State, 515 N. E. 2d 856, 857 (Ind. 1987); In re Levinson, 444 N. E. 2d
1175, 1176 (Ind. 1983); Preston v. State, 259 Ind. 353, 354-355, 287 N. E.
2d 347, 348 (1972); Thomas v. State, 238 Ind. 658, 569-660, 154 N. E. 2d
503, 504-505 (1958); Blanton v. State, 533 N. E. 2d 190, 191 (Ind. App.
1989); Sweeney v. State, 486 N. E. 2d 651, 652 (Ind. App. 1985); Thompson
v. State, 482 N. E. 2d 1372, 1373-1374 (Ind. App. 1985); Adims v. State,
461 N. E. 2d 740, 741-742 (Ind. App. 1984); State v. Elliott, 435 N. E. 2d
302, 304 (Ind. App. 1982); Lasko v. State, 409 N. E. 2d 1124, 1126 (Ind.
App. 1980). {2}
    The dissent confidently asserts, post, at 4, that the purpose of
restricting nudity in public places in general is to protect nonconsenting
parties from offense; and argues that since only consenting,
admission-paying patrons see respondents dance, that purpose cannot apply
and the only remaining purpose must relate to the communicative elements of
the performance.  Perhaps the dissenters believe that "offense to others"
ought to be the only reason for restricting nudity in public places
generally, but there is no

basis for thinking that our society has ever shared that Thoreauvian
"you-may-do-what-you-like-so-long-as-it-does

not-injure-someone-else" beau ideal -- much less for thinking that it was
written into the Constitution.  The purpose of Indiana's nudity law would
be violated, I think, if 60,000 fully consenting adults crowded into the
Hoosierdome to display their genitals to one another, even if there were
not an of fended innocent in the crowd.  Our society prohibits, and all
human societies have prohibited, certain activities not because they harm
others but because they are considered, in the traditional phrase, "contra
bonos mores," i. e., immoral.  In American society, such prohibitions have
included, for example, sadomasochism, cockfighting, bestiality, suicide,
drug use, prostitution, and sodomy.  While there may be great diversity of
view on whether various of these prohibitions should exist (though I have
found few ready to abandon, in principle, all of them) there is no doubt
that, absent specific constitutional protection for the conduct involved,
the Constitution does not prohibit them simply because they regulate
"morality."  See Bowers v. Hardwick, 478 U. S. 186, 196 (1986) (upholding
prohibition of private homosexual sodomy enacted solely on "the presumed
belief of a majority of the electorate in [the jurisdiction] that
homosexual sodomy is immoral and unacceptable").  See also Paris Adult
Theatre I v. Slaton, 413 U. S. 49, 68, n. 15 (1973); Dronenburg v. Zech,
239 U. S. App. D. C. 229, 238, and n. 6, 741 F. 2d 1388, 1397, and n. 6
(1984) (opinion of Bork, J.).  The purpose of the Indiana statute, as both
its text and the manner of its enforcement demonstrate, is to enforce the
traditional moral belief that people should not expose their private parts
indiscriminately, regardless of whether those who see them are disedified.
Since that is so, the dissent has no basis for positing that, where only
thoroughly edified adults are present, the purpose must be repression of
communication. {3}
II


    Since the Indiana regulation is a general law not specifically targeted
at expressive conduct, its application to such conduct does not in my view
implicate the First Amendment.    The First Amendment explicitly protects
"the freedom of speech [and] of the press" -- oral and written speech --
not "expressive conduct."  When any law restricts speech, even for a
purpose that has nothing to do with the suppression of communication (for
instance, to reduce noise, see Saia v. New York, 334 U. S. 558, 561 (1948),
to regulate election campaigns, see Buckley v. Valeo, 424 U. S. 1, 16
(1976), or to prevent littering, see Schneider v. State, 308 U. S. 147, 163
(1939)), we insist that it meet the high, First-Amendment standard of
justification.  But virtually every law restricts conduct, and virtually
any prohibited conduct can be performed for an expressive purpose -- if
only expressive of the fact that the actor disagrees with the prohibition.
See, e. g., Florida Free Beaches, Inc. v. Miami, 734 F. 2d 608, 609 (1984)
(nude sunbathers challenging public indecency law claimed their "message"
was that nudity is not indecent).  It cannot reasonably be demanded,
therefore, that every restriction of expression incidentally produced by a
general law regulating conduct pass normal First-Amendment scrutiny, or
even -- as some of our cases have suggested, see e. g., United States v.
O'Brien, 391 U. S. 367, 377 (1968) -- that it be justified by an "important
or substantial" government interest.  Nor do our holdings require such
justification: we have never invalidated the application of a general law
simply because the conduct that it reached was being engaged in for
expressive purposes and the government could not demonstrate a sufficiently
important state interest.
    This is not to say that the First Amendment affords no protection to
expressive conduct.  Where the government prohibits conduct precisely
because of its communicative attributes, we hold the regulation
unconstitutional.  See, e. g., United States v. Eichman, 496 U. S. ---
(1990) (burning flag); Texas v. Johnson, 491 U. S. 397 (1989) (same);
Spence v. Washington, 418 U. S. 405 (1974) (defacing flag); Tinker v. Des
Moines Independent Community School District, 393 U. S. 503 (1969) (wearing
black arm bands); Brown v. Louisiana, 383 U. S. 131 (1966) (participating
in silent sit-in); Stromberg v. California, 283 U. S. 359 (1931) (flying a
red flag). {4}  In each of the foregoing cases, we explicitly found that
suppressing communication was the object of the regulation of conduct.
Where that has not been the case, however -- where suppression of
communicative use of the conduct was merely the incidental effect of
forbidding the conduct for other reasons -- we have allowed the regulation
to stand.  O'Brien, 391 U. S., at 377 (law banning destruction of draft
card upheld in application against cardburning to protest war); FTC v.
Superior Court Trial Lawyers Assn., 493 U. S. 411 (1990) (Sherman Act
upheld in application against restraint of trade to protest low pay); cf.
United States v. Albertini, 472 U. S. 675, 687-688 (1985) (rule barring
petitioner from military base upheld in application against entrance on
base to protest war); Clark v. Community for Creative Non-Violence, 468 U.
S. 288 (1984) (rule barring sleeping in parks upheld in application against
persons engaging in such conduct to dramatize plight of homeless).  As we
clearly expressed the point in Johnson:

"The government generally has a freer hand in restricting expressive
conduct than it has in restricting the written or spoken word.  It may not,
however, proscribe particular conduct because it has expressive elements.
What might be termed the more generalized guarantee of freedom of
expression makes the communicative nature of conduct an inadequate basis
for singling out that conduct for proscription."  491 U. S., at 406.
(internal quotations and citations omitted; emphasis in original).


    All our holdings (though admittedly not some of our discussion) support
the conclusion that "the only First Amendment analysis applicable to laws
that do not directly or indirectly impede speech is the threshold inquiry
of whether the purpose of the law is to suppress communication.  If not,
that is the end of the matter so far as First Amendment guarantees are
concerned; if so, the court then proceeds to determine whether there is
substantial justification for the proscription."  Community for Creative
Non-Violence v. Watt, 227 U. S. App. D. C. 19, 55-56, 703 F. 2d 586,
622-623 (1983) (en banc) (Scalia, J., dissenting), (footnote omitted;
emphasis omitted), rev'd Clark v. Community for Creative Non-Violence, 468
U. S. 288 (1984).  Such a regime ensures that the government does not act
to suppress communication, without requiring that all conduct-restricting
regulation (which means in effect all regulation) survive an enhanced level
of scrutiny.
    We have explicitly adopted such a regime in another First Amendment
context: that of Free Exercise.  In Employment Division, Oregon Dept. of
Human Resources v. Smith, 494 U. S. --- (1990), we held that general laws
not specifically targeted at religious practices did not require heightened
First Amendment scrutiny even though they diminished some people's ability
to practice their religion.  "The government's ability to enforce generally
applicable prohibitions of socially harmful conduct, like its ability to
carry out other aspects of public policy, `cannot depend on measuring the
effects of a governmental action on a religious objector's spiritual
development.' "  Id., at --- [110 S. Ct., at 1603], quoting Lyng v.
Northwest Indian Cemetery Protective Assn., 485 U. S. 439, 451 (1988); see
also Minersville School District v. Gobitis, 310 U. S. 586, 594-595 (1940)
(Frank furter, J.) ("Conscientious scruples have not, in the course of the
long struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or restriction of
religious beliefs.").  There is even greater reason to apply this approach
to the regulation of expressive conduct.  Relatively few can plausibly
assert that their illegal conduct is being engaged in for religious
reasons; but almost anyone can violate almost any law as a means of
expression.  In the one case, as in the other, if the law is not directed
against the protected value (religion or expression) the law must be
obeyed.
III


    While I do not think the plurality's conclusions differ greatly from my
own, I cannot entirely endorse its reasoning.  The plurality purports to
apply to this general law, insofar as it regulates this allegedly
expressive conduct, an intermediate level of First Amendment scrutiny: the
government interest in the regulation must be " `important or substantial,'
" ante, at 6, quoting O'Brien, 391 U. S., at 377.  As I have indicated, I
do not believe such a heightened standard exists.  I think we should avoid
wherever possible, moreover, a method of analysis that requires judicial
assessment of the "importance" of government interests -- and especially of
government interests in various aspects of morality.
    Neither of the cases that the plurality cites to support the
"importance" of the State's interest here, see ante, at 7-8, is in point.
Paris Adult Theatre I v. Slaton, 413 U. S., at 61 and Bowers v. Hardwick,
478 U. S., at 196, did uphold laws prohibiting private conduct based on
concerns of decency and morality; but neither opinion held that those
concerns were particularly "important" or "substantial," or amounted to
anything more than a rational basis for regulation.  Slaton involved an
exhibition which, since it was obscene and at least to some extent public,
was unprotected by the First Amendment, see Roth v. United States, 354 U.
S. 476 (1957); the State's prohibition could therefore be invalidated only
if it had no rational basis.  We found that the State's "right . . . to
maintain a decent society" provided a "legitimate" basis for regulation --
even as to obscene material viewed by consenting adults.  413 U. S., at
59-60.  In Bowers, we held that since homosexual behavior is not a
fundamental right, a Georgia law prohibiting private homosexual intercourse
needed only a rational basis in order to comply with the Due Process
Clause.  Moral opposition to homosexuality, we said, provided that rational
basis.  478 U. S., at 196.  I would uphold the Indiana statute on precisely
the same ground: moral opposition to nudity supplies a rational basis for
its prohibition, and since the First Amendment has no application to this
case no more than that is needed.
*  *  *


    Indiana may constitutionally enforce its prohibition of public nudity
even against those who choose to use public nudity as a means of
communication.  The State is regulating conduct, not expression, and those
who choose to employ conduct as a means of expression must make sure that
the conduct they select is not generally forbidden.  For these reasons, I
agree that the judgment should be reversed.














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1
    Respondents assert that the statute cannot be characterized as a
general regulation of conduct, unrelated to suppression of expression,
because one defense put forward in oral argument below by the attorney
general referred to the "message of eroticism" conveyed by respondents.
But that argument seemed to go to whether the statute could
constitutionally be applied to the present performances, rather than to
what was the purpose of the legislation.  Moreover, the State's argument
below was in the alternative: (1) that the statute does not implicate the
First Amendment because it is a neutral rule not directed at expression,
and (2) that the statute in any event survives First Amendment scrutiny
because of the State's interest in suppressing nude barroom dancing.  The
second argument can be claimed to contradict the first (though I think it
does not); but it certainly does not waive or abandon it.  In any case, the
clear purpose shown by both the text and historical use of the statute
cannot be refuted by a litigating statement in a single case.

2
    Respondents also contend that the statute, as interpreted, is not
content-neutral in the expressive conduct to which it applies, since it
allegedly does not apply to nudity in theatrical productions.  See State v.
Bay singer, 272 Ind. 236, 247, 397 N. E. 2d. 580, 587 (1979).  I am not
sure that theater versus non-theater represents a distinction based on
content rather than format, but assuming that it does the argument
nonetheless fails for the reason the plurality describes, ante, at 2-3, n.
1.

3
    The dissent, post, at 3-4, 9, also misunderstands what is meant by the
term "general law."  I do not mean that the law restricts the targeted
conduct in all places at all times.  A law is "general" for the present
purposes if it regulates conduct without regard to whether that conduct is
expressive.  Concededly, Indiana bans nudity in public places, but not
within the privacy of the home.  (That is not surprising, since the common
law offense, and the traditional moral prohibition, runs against public
nudity, not against all nudity.  E. g., 50 Am. Jur. 2d, at 472-474.)  But
that confirms, rather than refutes, the general nature of the law: one may
not go nude in public, whether or not one intends thereby to convey a
message, and similarly one may go nude in private, again whether or not
that nudity is expressive.

4
    It is easy to conclude that conduct has been forbidden because of its
communicative attributes when the conduct in question is what the Court has
called "inherently expressive," and what I would prefer to call
"conventionally expressive" -- such as flying a red flag.  I mean by that
phrase (as I assume the Court means by "inherently expressive") conduct
that is normally engaged in for the purpose of communicating an idea, or
perhaps an emotion, to someone else.  I am not sure whether dancing fits
that description, see Dallas v. Stanglin, 490 U. S. 19, 24 (1989) (social
dance group "do[es] not involve the sort of expressive association that the
First Amendment has been held to protect").  But even if it does, this law
is directed against nudity, not dancing.  Nudity is not normally engaged in
for the purpose of communicating an idea or an emotion.