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




NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
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]



    Chief Justice Rehnquist delivered the opinion of the Court.
    Respondents are two establishments in South Bend, In diana, that wish
to provide totally nude dancing as enter tainment, and individual dancers
who are employed at these establishments.  They claim that the First
Amendment's guarantee of freedom of expression prevents the State of
Indiana from enforcing its public indecency law to prevent this form of
dancing.  We reject their claim.
    The facts appear from the pleadings and findings of the District Court,
and are uncontested here.  The Kitty Kat Lounge, Inc. (Kitty Kat) is
located in the city of South Bend.  It sells alcoholic beverages and
presents "go-go dancing."  Its proprietor desires to present "totally nude
dancing," but an applicable Indiana statute regulating public nudity
requires that the dancers wear "pasties" and a "G-string" when they dance.
The dancers are not paid an hourly wage, but work on commission.  They
receive a 100 percent commission on the first $60 in drink sales during
their performances.  Darlene Miller, one of the respondents in the action,
had worked at the Kitty Kat for about two years at the time this action was
brought.  Miller wishes to dance nude because she believes she would make
more money doing so.
    Respondent Glen Theatre, Inc., is an Indiana corporation with a place
of business in South Bend.  Its primary business is supplying so-called
adult entertainment through written and printed materials, movie showings,
and live entertainment at an enclosed "bookstore."  The live entertainment
at the "bookstore" consists of nude and seminude performances and showings
of the female body through glass panels.  Customers sit in a booth and
insert coins into a timing mechanism that permits them to observe the live
nude and seminude dancers for a period of time.  One of Glen Theatre's
dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted
professionally for more than 15 years, and in addition to her performances
at the Glen Theatre, can be seen in a pornographic movie at a nearby
theater.  App. to Pet. for Cert. 131-133.
    Respondents sued in the United States District Court for the Northern
District of Indiana to enjoin the enforcement of the Indiana public
indecency statute, Ind. Code MDRV 35-45-4-1 (1988), asserting that its
prohibition against complete nudity in public places violated the First
Amendment.  The District Court originally granted respondents' prayer for
an injunction, finding that the statute was facially overbroad.  The Court
of Appeals for the Seventh Circuit reversed, deciding that previous
litigation with respect to the statute in the Supreme Court of Indiana and
this Court precluded the possibility of such a challenge, {1} and remanded
to the District Court in order for the plaintiffs to pursue their claim
that the statute violated the First Amendment as applied to their dancing.
Glen Theatre, Inc. v. Pearson, 802 F. 2d 287, 288290 (1986).  On remand,
the District Court concluded that "the type of dancing these plaintiffs
wish to perform is not expressive activity protected by the Constitution of
the United States," and rendered judgment in favor of the defendants.  Glen
Theatre, Inc. v. Civil City of South Bend, 695 F. Supp. 414, 419 (ND Ind.
1988).  The case was again appealed to the Seventh Circuit, and a panel of
that court reversed the District Court, holding that the nude dancing
involved here was expressive conduct protected by the First Amendment.
Miller v. Civil City of South Bend, 887 F. 2d 826 (CA7 1989).  The Court of
Appeals then heard the case en banc, and the court rendered a series of
comprehensive and thoughtful opinions.  The majority concluded that non
obscene nude dancing performed for entertainment is expression protected by
the First Amendment, and that the public indecency statute was an improper
infringement of that expressive activity because its purpose was to prevent
the message of eroticism and sexuality conveyed by the dancers.  Miller v.
Civil City of South Bend, 904 F. 2d 1081 (CA7 1990).  We granted
certiorari, 498 U. S. --- (1990), and now hold that the Indiana statutory
requirement that the dancers in the establishments involved in this case
must wear pasties and a G-string does not violate the First Amendment.
    Several of our cases contain language suggesting that nude dancing of
the kind involved here is expressive conduct protected by the First
Amendment.  In Doran v. Salem Inn, Inc., 422 U. S. 922, 932 (1975), we
said: "[A]lthough the customary `barroom' type of nude dancing may involve
only the barest minimum of protected expression, we recognized in
California v. LaRue, 409 U. S. 109, 118 (1972), that this form of
entertainment might be entitled to First and Fourteenth Amendment
protection under some circumstances."  In Schad v. Borough of Mount
Ephraim, 452 U. S. 61, 66 (1981), we said that "[f]urthermore, as the state
courts in this case recognized, nude dancing is not without its First
Amendment protections from official regulation" (citations omitted).  These
statements support the conclusion of the Court of Appeals that nude dancing
of the kind sought to be performed here is expressive conduct within the
outer perimeters of the First Amendment, though we view it as only
marginally so.  This, of course, does not end our inquiry.  We must
determine the level of protection to be afforded to the expressive conduct
at issue, and must determine whether the Indiana statute is an
impermissible infringement of that protected activity.
    Indiana, of course, has not banned nude dancing as such, but has
proscribed public nudity across the board.  The Supreme Court of Indiana
has construed the Indiana statute to preclude nudity in what are
essentially places of public accommodation such as the Glen Theatre and the
Kitty Kat Lounge.  In such places, respondents point out, minors are
excluded and there are no non-consenting viewers.  Respondents contend that
while the state may license establishments such as the ones involved here,
and limit the geographical area in which they do business, it may not in
any way limit the performance of the dances within them without violating
the First Amendment.  The petitioner contends, on the other hand, that
Indiana's restriction on nude dancing is a valid "time, place or manner"
restriction under cases such as Clark v. Community for Creative
Non-Violence, 468 U. S. 288 (1984).
    The "time, place, or manner" test was developed for evaluating
restrictions on expression taking place on public property which had been
dedicated as a "public forum," Ward v. Rock Against Racism, 491 U. S. 781,
791 (1989), although we have on at least one occasion applied it to conduct
occurring on private property. See Renton v. Playtime Theatres, Inc., 475
U. S. 41 (1986).  In Clark we observed that this test has been interpreted
to embody much the same standards as those set forth in United States v.
O'Brien, 391 U. S. 367 (1968), and we turn, therefore, to the rule
enunciated in O'Brien.
    O'Brien burned his draft card on the steps of the South Boston
courthouse in the presence of a sizable crowd, and was convicted of
violating a statute that prohibited the knowing destruction or mutilation
of such a card.  He claimed that his conviction was contrary to the First
Amendment because his act was "symbolic speech" -- expressive conduct.  The
court rejected his contention that symbolic speech is entitled to full
First Amendment protection, saying:

"[E]ven on the assumption that the alleged communicative element in
O'Brien's conduct is sufficient to bring into play the First Amendment, it
does not necessarily follow that the destruction of a registration
certificate is constitutionally protected activity.  This Court has held
that when `speech' and `nonspeech' elements are combined in the same course
of conduct, a sufficiently important governmental interest in regulating
the nonspeech element can justify incidental limitations on First Amendment
freedoms.  To characterize the quality of the governmental interest which
must appear, the Court has employed a variety of descriptive terms:
compelling; substantial; subordinating; paramount; cogent; strong.
Whatever imprecision inheres in these terms, we think it clear that a
government regulation is sufficiently justified if it is within the
constitutional power of the Government; if it furthers an important or
substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest."  Id., at 376-377 (footnotes
omitted).


    Applying the four-part O'Brien test enunciated above, we find that
Indiana's public indecency statute is justified despite its incidental
limitations on some expressive activity.  The public indecency statute is
clearly within the constitutional power of the State and furthers
substantial governmental interests.  It is impossible to discern, other
than from the text of the statute, exactly what governmental interest the
Indiana legislators had in mind when they enacted this statute, for Indiana
does not record legislative history, and the state's highest court has not
shed additional light on the statute's purpose.  Nonetheless, the statute's
purpose of protecting societal order and morality is clear from its text
and history.  Public indecency statutes of this sort are of ancient origin,
and presently exist in at least 47 States.  Public indecency, including
nudity, was a criminal offense at common law, and this Court recognized the
common-law roots of the offense of "gross and open indecency" in Winters v.
New York, 333 U. S. 507, 515 (1948).  Public nudity was considered an act
malum en se.  Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (K. B. 1664).
Public indecency statutes such as the one before us reflect moral
disapproval of people appearing in the nude among strangers in public
places.
    This public indecency statute follows a long line of earlier Indiana
statutes banning all public nudity.  The history of Indiana's public
indecency statute shows that it predates barroom nude dancing and was
enacted as a general prohibition.  At least as early as 1831, Indiana had a
statute punishing "open and notorious lewdness, or . . . any grossly
scandalous and public indecency."  Rev. Laws of Ind., ch. 26, MDRV 60
(1831); Ind. Rev. Stat., ch. 53, MDRV 81 (1834).  A gap during which no
statute was in effect was filled by the Indiana Supreme Court in Ardery v.
State, 56 Ind. 328 (1877), which held that the court could sustain a
conviction for exhibition of "privates" in the presence of others.  The
court traced the offense to the Bible story of Adam and Eve.  Id., at
329-330.  In 1881, a statute was enacted that would remain essentially
unchanged for nearly a century:

"Whoever, being over fourteen years of age, makes an indecent exposure of
his person in a public place, or in any place where there are other persons
to be offended or annoyed thereby, . . . is guilty of public indecency . .
. ."  1881 Ind. Acts, ch. 37, MDRV 90.


The language quoted above remained unchanged until it was simultaneously
repealed and replaced with the present statute in 1976.  1976 Ind. Acts,
Pub. L. 148, Art. 45, ch. 4, MDRV 1. {2}     This and other public
indecency statutes were designed to protect morals and public order.  The
traditional police power of the States is defined as the authority to
provide for the public health, safety, and morals, and we have upheld such
a basis for legislation.  In Paris Adult Theatre I v. Slaton, 413 U. S. 49,
61 (1973), we said:

"In deciding Roth [v. United States, 354 U. S. 476 (1957)], this Court
implicitly accepted that a legislature could legitimately act on such a
conclusion to protect `the social interest in order and morality.'  [Id.],
at 485."  (Emphasis omitted.)


And in Bowers v. Hardwick, 478 U. S. 186, 196 (1986), we said:

"The law, however, is constantly based on notions of morality, and if all
laws representing essentially moral choices are to be invalidated under the
Due Process Clause, the courts will be very busy indeed."


    Thus, the public indecency statute furthers a substantial government
interest in protecting order and morality.
    This interest is unrelated to the suppression of free expression.  Some
may view restricting nudity on moral grounds as necessarily related to
expression.  We disagree.  It can be argued, of course, that almost
limitless types of conduct -- including appearing in the nude in public --
are "expressive," and in one sense of the word this is true.  People who go
about in the nude in public may be expressing something about themselves by
so doing.  But the court rejected this expansive notion of "expressive
conduct" in O'Brien, saying:

"We cannot accept the view that an apparently limitless variety of conduct
can be labelled `speech' whenever the person engaging in the conduct
intends thereby to express an idea."  391 U. S. at 376.


    And in Dallas v. Stanglin, 490 U. S. 19, we further observed:

"It is possible to find some kernel of expression in almost every activity
a person undertakes -- for example, walking down the street or meeting
one's friends at a shopping mall -- but such a kernel is not sufficient to
bring the activity within the protection of the First Amendment.  We think
the activity of these dance-hall patrons coming together to engage in
recreational dancing -- is not protected by the First Amendment."  490 U.
S. 19, 25.


    Respondents contend that even though prohibiting nudity in public
generally may not be related to suppressing expression, prohibiting the
performance of nude dancing is related to expression because the state
seeks to prevent its erotic message.  Therefore, they reason that the
application of the Indiana statute to the nude dancing in this case
violates the First Amendment, because it fails the third part of the
O'Brien test, viz: the governmental interest must be unrelated to the
suppression of free expression.
    But we do not think that when Indiana applies its statute to the nude
dancing in these nightclubs it is proscribing nudity because of the erotic
message conveyed by the dancers.  Presumably numerous other erotic
performances are presented at these establishments and similar clubs
without any interference from the state, so long as the performers wear a
scant amount of clothing. Likewise, the requirement that the dancers don
pasties and a G-string does not deprive the dance of whatever erotic
message it conveys; it simply makes the message slightly less graphic.  The
perceived evil that Indiana seeks to address is not erotic dancing, but
public nudity.  The appearance of people of all shapes, sizes and ages in
the nude at a beach, for example, would convey little if any erotic
message, yet the state still seeks to prevent it.  Public nudity is the
evil the state seeks to prevent, whether or not it is combined with
expressive activity.
    This conclusion is buttressed by a reference to the facts of O'Brien.
An act of Congress provided that anyone who knowingly destroyed a selective
service registration certificate committed an offense.  O'Brien burned his
certificate on the steps of the South Boston Courthouse to influence others
to adopt his anti-war beliefs.  This Court upheld his conviction, reasoning
that the continued availability of issued certificates served a legitimate
and substantial purpose in the administration of the selective service
system.  O'Brien's deliberate destruction of his certificate frustrated
this purpose and "for this non-communicative aspect of his conduct, and for
nothing else, he was convicted."  391 U. S., at 302.  It was assumed that
O'Brien's act in burning the certificate had a communicative element in it
sufficient to bring into play the First Amendment, 391 U. S., at 376, but
it was for the noncommunicative element that he was prosecuted.  So here
with the Indiana statute; while the dancing to which it was applied had a
communicative element, it was not the dancing that was prohibited, but
simply its being done in the nude.     The fourth part of the O'Brien test
requires that the in cidental restriction on First Amendment freedom be no
greater than is essential to the furtherance of the governmental interest.
As indicated in the discussion above, the governmental interest served by
the text of the prohibition is societal disapproval of nudity in public
places and among strangers.  The statutory prohibition is not a means to
some greater end, but an end in itself.  It is without cavil that the
public indecency statute is "narrowly tailored;" Indiana's requirement that
the dancers wear at least pasties and a Gstring is modest, and the bare
minimum necessary to achieve the state's purpose.
    The judgment of the Court of Appeals accordingly is

Reversed.








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1
    The Indiana Supreme Court appeared to give the public indecency statute
a limiting construction to save it from a facial overbreadth attack:


"There is no right to appear nude in public.  Rather, it may be
constitutionally required to tolerate or to allow some nudity as a part of
some larger form of expression meriting protection, when the communication
of ideas is involved."  State v. Baysinger, 272 Ind. 236, 247, 397 N. E. 2d
580, 587 (1979) (emphasis added) appeals dism'd sub nom. Clark v. Indiana,
446 U. S. 931, and Dove v. Indiana, 449 U. S. 806 (1980).


    Five years after Baysinger, however, the Indiana Supreme Court reversed
a decision of the Indiana Court of Appeals holding that the statute did
"not apply to activity such as the theatrical appearances involved herein,
which may not be prohibited absent a finding of obscenity," in a case
involving a partially nude dance in the "Miss Erotica of Fort Wayne"
contest.  Erhardt v. State, 468 N. E. 2d 224 (Ind. 1984).  The Indiana
Supreme Court did not discuss the constitutional issues beyond a cursory
comment that the statute had been upheld against constitutional attack in
Baysinger, and Erhardt's conduct fell within the statutory prohibition.
Justice Hunter dissented, arguing that "a public indecency statute which
prohibits nudity in any public place is unconstitutionally overbroad.  My
reasons for so concluding have already been articulated in State v. Bay
singer, (1979) 272 Ind. 236, 397 N. E. 2d 580 (Hunter and DeBruler, JJ.,
dissenting)."  Id., at 225-226.  Justice DeBruler expressed similar views
in his dissent in Erhardt.  Ibid.  Therefore, the Indiana Supreme Court did
not affirmatively limit the reach of the statute in Baysinger, but merely
said that to the extent the First Amendment would require it, the statute
might be unconstitutional as applied to some activities.

2
    Indiana Code MDRV 35-45-4-1 (1988) provides:

"Public Indecency
    "Sec. 1.  (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 the covered male genitals in a discernibly
turgid state."