The Supreme Court/The Supreme Court.iso/pc/ascii/1990/90_26/90_26.c2

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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 Souter, concurring in the judgment.

    Not all dancing is entitled to First Amendment protection as expressive
activity.  This Court has previously categorized ballroom dancing as beyond
the Amendment's protection, Dallas v. Stanglin, 490 U. S. 19, 24-25 (1989),
and dancing as aerobic exercise would likewise be outside the First
Amendment's concern.  But dancing as a performance directed to an actual or
hypothetical audience gives expression at least to generalized emotion or
feeling, and where the dancer is nude or nearly so the feeling expressed,
in the absence of some contrary clue, is eroticism, carrying an endorsement
of erotic experience.  Such is the expressive content of the dances
described in the record.
    Although such performance dancing is inherently expressive, nudity per
se is not.  It is a condition, not an activity, and the voluntary
assumption of that condition, without more, apparently expresses nothing
beyond the view that the condition is somehow appropriate to the
circumstances.  But every voluntary act implies some such idea, and the
implication is thus so common and minimal that calling all voluntary
activity expressive would reduce the concept of expression to the point of
the meaningless.  A search for some expression beyond the minimal in the
choice to go nude will often yield nothing: a person may choose nudity, for
example, for maximum sunbathing.  But when nudity is combined with
expressive activity, its stimulative and attractive value certainly can
enhance the force of expression, and a dancer's acts in going from clothed
to nude, as in a strip-tease, are integrated into the dance and its
expressive function.  Thus I agree with the plurality and the dissent that
an interest in freely engaging in the nude dancing at issue here is subject
to a degree of First Amendment protection.
    I also agree with the plurality that the appropriate analysis to
determine the actual protection required by the First Amendment is the
four-part enquiry described in United States v. O'Brien, 391 U. S. 367
(1968), for judging the limits of appropriate state action burdening
expressive acts as distinct from pure speech or representation.  I
nonetheless write separately to rest my concurrence in the judgment, not on
the possible sufficiency of society's moral views to justify the
limitations at issue, but on the State's substantial interest in combating
the secondary effects of adult entertainment establishments of the sort
typified by respondents' establishments.
    It is, of course, true that this justification has not been articulated
by Indiana's legislature or by its courts.  As the plurality observes,
"Indiana does not record legislative history, and the state's highest court
has not shed additional light on the statute's purpose," ante, at 6.  While
it is certainly sound in such circumstances to infer general purposes "of
protecting societal order and morality . . . from [the statute's] text and
history," ibid., I think that we need not so limit ourselves in identifying
the justification for the legislation at issue here, and may legitimately
consider petitioners' assertion that the statute is applied to nude dancing
because such dancing "encourag[es] prostitution, increas[es] sexual
assaults, and attract[s] other criminal activity."  Brief for Petitioners
37.
    This asserted justification for the statute may not be ignored merely
because it is unclear to what extent this purpose motivated the Indiana
Legislature in enacting the statute.  Our appropriate focus is not an
empirical enquiry into the actual intent of the enacting legislature, but
rather the existence or not of a current governmental interest in the
service of which the challenged application of the statute may be
constitutional.  Cf. McGowan v. Maryland, 366 U. S. 420 (1961).  At least
as to the regulation of expressive conduct, {1} "[w]e decline to void [a
statute] essentially on the ground that it is unwise legislation which [the
legislature] had the undoubted power to enact and which could be reenacted
in its exact form if the same or another legislator made a `wiser' speech
about it."  O'Brien, supra, at 384.  In my view, the interest asserted by
petitioners in preventing prostitution, sexual assault, and other criminal
activity, although presumably not a justification for all applications of
the statute, is sufficient under O'Brien to justify the State's enforcement
of the statute against the type of adult entertainment at issue here.
    At the outset, it is clear that the prevention of such evils falls
within the constitutional power of the State, which satisfies the first
O'Brien criterion.  See id., at 377.  The second O'Brien prong asks whether
the regulation "furthers an important or substantial governmental
interest."  Ibid.  The asserted state interest is plainly a substantial
one; the only question is whether prohibiting nude dancing of the sort at
issue here "furthers" that interest.  I believe that our cases have
addressed this question sufficiently to establish that it does.
    In Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986), we upheld a
city's zoning ordinance designed to prevent the occurrence of harmful
secondary effects, including the crime associated with adult entertainment,
by protecting approximately 95% of the city's area from the placement of
motion picture theaters emphasizing " `matter depicting, describing or
relating to "specified sexual activities" or "specified anatomical areas" .
. . for observation by patrons therein.' "  Id., at 44.  Of particular
importance to the present enquiry, we held that the city of Renton was not
compelled to justify its restrictions by studies specifically relating to
the problems that would be caused by adult theaters in that city.  Rather,
"Renton was entitled to rely on the experiences of Seattle and other
cities," id., at 51, which demonstrated the harmful secondary effects
correlated with the presence "of even one [adult] theater in a given
neighborhood."  Id., at 50; cf. Young v. American Mini Theatres, Inc., 427
U. S. 50, 71, n. 34 (1976) (legislative finding that "a concentration of
`adult' movie theaters causes the area to deteriorate and become a focus of
crime"); California v. LaRue, 409 U. S. 109, 111 (1972) (administrative
findings of criminal activity associated with adult entertainment).
    The type of entertainment respondents seek to provide is plainly of the
same character as that at issue in Renton, American Mini Theatres, and
LaRue.  It therefore is no leap to say that live nude dancing of the sort
at issue here is likely to produce the same pernicious secondary effects as
the adult films displaying "specified anatomical areas" at issue in Renton.
Other reported cases from the Circuit in which this litigation arose
confirm the conclusion.  See, e. g., United States v. Marren, 890 F. 2d
924, 926 (CA7 1989) (prostitution associated with nude dancing
establishment); United States v. Doerr, 886 F. 2d 944, 949 (CA7 1989)
(same).  In light of Renton's recognition that legislation seeking to
combat the secondary effects of adult entertainment need not await
localized proof of those effects, the State of Indiana could reasonably
conclude that forbidding nude entertainment of the type offered at the
Kitty Kat Lounge and the Glen Theatre's "bookstore" furthers its interest
in preventing prostitution, sexual assault, and associated crimes.  Given
our recognition that "society's interest in protecting this type of
expression is of a wholly different, and lesser, magnitude than the
interest in untrammeled political debate," American Mini Theatres, supra,
at 70, I do not believe that a State is required affirmatively to undertake
to litigate this issue repeatedly in every case.  The statute as applied to
nudity of the sort at issue here therefore satisfies the second prong of
O'Brien. {2}
    The third O'Brien condition is that the governmental interest be
"unrelated to the suppression of free expression," 391 U. S., at 377, and,
on its face, the governmental interest in combating prostitution and other
criminal activity is not at all inherently related to expression.  The
dissent contends, however, that Indiana seeks to regulate nude dancing as
its means of combating such secondary effects "because . . . creating or
emphasizing [the] thoughts and ideas [expressed by nude dancing] in the
minds of the spectators may lead to increased prostitution," post, at 6,
and that regulation of expressive conduct because of the fear that the
expression will prove persuasive is inherently related to the suppression
of free expression.  Ibid.
    The major premise of the dissent's reasoning may be correct, but its
minor premise describing the causal theory of Indiana's regulatory
justification is not.  To say that pernicious secondary effects are
associated with nude dancing establishments is not necessarily to say that
such effects result from the persuasive effect of the expression inherent
in nude dancing.  It is to say, rather, only that the effects are
correlated with the existence of establishments offering such dancing,
without deciding what the precise causes of the correlation actually are.
It is possible, for example, that the higher incidence of prostitution and
sexual assault in the vicinity of adult entertainment locations results
from the concentration of crowds of men predisposed to such activities, or
from the simple viewing of nude bodies regardless of whether those bodies
are engaged in expression or not.  In neither case would the chain of
causation run through the persuasive effect of the expressive component of
nude dancing.
    Because the State's interest in banning nude dancing results from a
simple correlation of such dancing with other evils, rather than from a
relationship between the other evils and the expressive component of the
dancing, the interest is unrelated to the suppression of free expression.
Renton is again persuasive in support of this conclusion.  In Renton, we
held that an ordinance that regulated adult theaters because the presence
of such theaters was correlated with secondary effects that the local
government had an interest in regulating was content-neutral (a
determination similar to the "unrelated to the suppression of free
expression" determination here, see Clark v. Community for Creative
Non-Violence, 468 U. S. 288, 298, and n. 8 (1984)) because it was
"justified without reference to the content of the regulated speech."  475
U. S., at 48 (emphasis in original).  We reached this conclusion without
need to decide whether the cause of the correlation might have been the
persuasive effect of the adult films that were being regulated.  Similarly
here, the "secondary effects" justification means that enforcement of the
Indiana statute against nude dancing is "justified without reference to the
content of the regulated [expression]," ibid. (emphasis omitted), which is
sufficient, at least in the context of sexually explicit expression, {3} to
satisfy the third prong of the O'Brien test.
    The fourth O'Brien condition, that the restriction be no greater than
essential to further the governmental interest, requires little discussion.
Pasties and a G-string moderate the expression to some degree, to be sure,
but only to a degree.  Dropping the final stitch is prohibited, but the
limitation is minor when measured against the dancer's remaining capacity
and opportunity to express the erotic message.  Nor, so far as we are told,
is the dancer or her employer limited by anything short of obscenity laws
from expressing an erotic message by articulate speech or representational
means; a pornographic movie featuring one of respondents, for example, was
playing nearby without any interference from the authorities at the time
these cases arose.
    Accordingly, I find O'Brien satisfied and concur in the judgment.







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1
    Cf., e. g., Edwards v. Aguillard, 482 U. S. 578 (1987) (striking down
state statute on Establishment Clause grounds due to impermissible
legislative intent).

2
    Because there is no overbreadth challenge before us, we are not called
upon to decide whether the application of the statute would be valid in
other contexts.  It is enough, then, to say that the secondary effects
rationale on which I rely here would be open to question if the State were
to seek to enforce the statute by barring expressive nudity in classes of
productions that could not readily be analogized to the adult films at
issue in Renton v. Playtime Theatres, Inc., 475 U. S. 41 (1986).  It is
difficult to see, for example, how the enforcement of Indiana's statute
against nudity in a production of "Hair" or "Equus" somewhere other than an
"adult" theater would further the State's interest in avoiding harmful
secondary effects, in the absence of evidence that expressive nudity
outside the context of Renton-type adult entertainment was correlated with
such secondary effects.

3
    I reach this conclusion again mindful, as was the Court in Renton, that
the protection of sexually explicit expression may be of lesser societal
importance than the protection of other forms of expression.  See Renton,
supra, at 49, and n. 2, citing Young v. American Mini Theatres, Inc., 427
U. S. 50, 70 (1976).