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- Subject: BARNES v. GLEN THEATRE, INC., Syllabus
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-
-
-
- NOTE: Where it is feasible, a syllabus (headnote) will be released, as
- is being done in connection with this case, at the time the opinion is
- issued. The syllabus constitutes no part of the opinion of the Court but
- has been prepared by the Reporter of Decisions for the convenience of the
- reader. See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
- SUPREME COURT OF THE UNITED STATES
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-
- Syllabus
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-
- BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, et al. v. GLEN
- THEATRE, INC., et al.
-
- certiorari to the united states court of appeals for the seventh circuit
-
- No. 90-26. Argued January 8, 1991 -- Decided June 21, 1991
-
- Respondents, two Indiana establishments wishing to provide totally nude
- dancing as entertainment and individual dancers employed at those
- establishments, brought suit in the District Court to enjoin enforcement of
- the state public indecency law -- which requires respondent dancers to wear
- pasties and a G-string -- asserting that the law's prohibition against
- total nudity in public places violates the First Amendment. The court held
- that the nude dancing involved here was not expressive conduct. The Court
- of Appeals reversed, ruling that nonobscene nude dancing performed for
- entertainment is protected expression, and that the statute was an improper
- infringement of that activity because its purpose was to prevent the
- message of eroticism and sexuality conveyed by the dancers.
-
- Held: The judgment is reversed.
-
- 904 F. 2d 1081, reversed.
-
- The Chief Justice, joined by Justice O'Connor and Justice Kennedy,
- concluded that the enforcement of Indiana's public indecency law to prevent
- totally nude dancing does not violate the First Amendment's guarantee of
- freedom of expression. Pp. 4-10.
-
- (a) Nude dancing of the kind sought to be performed here is expressive
- conduct within the outer perimeters of the First Amendment, although only
- marginally so. See, e. g., Doran v. Salem Inn, Inc., 422 U. S. 922, 932.
- P. 4.
-
- (b) Applying the four-part test of United States v. O'Brien, 391 U. S.
- 367, 376-377 -- which rejected the contention that symbolic speech is
- entitled to full First Amendment protection -- the statute is justified
- despite its incidental limitations on some expressive activity. The law is
- clearly within the State's constitutional power. And it furthers a
- substantial governmental interest in protecting societal order and
- morality. Public indecency statutes reflect moral disapproval of people
- appearing in the nude among strangers in public places, and this particular
- law follows a line of state laws, dating back to 1831, banning public
- nudity. The States' traditional police power is defined as the authority
- to provide for the public health, safety, and morals, and such a basis for
- legislation has been upheld. See, e. g., Paris Adult Theatre I v. Slaton,
- 413 U. S. 49, 61. This governmental interest is unrelated to the
- suppression of free expression, since public nudity is the evil the State
- seeks to prevent, whether or not it is combined with expressive activity.
- The law does not proscribe nudity in these establishments because the
- dancers are conveying an erotic message. To the contrary, an erotic
- performance may be presented without any state interference, so long as the
- performers wear a scant amount of clothing. Finally, the incidental
- restriction on First Amendment freedom is no greater than is essential to
- the furtherance of the governmental interest. Since the statutory
- prohibition is not a means to some greater end, but an end itself, it is
- without cavil that the statute is narrowly tailored. Pp. 5-10.
-
- Justice Scalia concluded that the statute -- as a general law
- regulating conduct and not specifically directed at expression, either in
- practice or on its face -- is not subject to normal First Amendment
- scrutiny and should be upheld on the ground that moral opposition to nudity
- supplies a rational basis for its prohibition. Cf. Employment Division,
- Oregon Dept. of Human Resources v. Smith, 494 U. S. ---. There is no
- intermediate level of scrutiny requiring that an incidental restriction on
- expression, such as that involved here, be justified by an important or
- substantial governmental interest. Pp. 1-9.
-
- Justice Souter, agreeing that the nude dancing at issue here is subject
- to a degree of First Amendment protection, and that the test of United
- States v. O'Brien, 391 U. S. 367, is the appropriate analysis to determine
- the actual protection required, concluded that the State's interest in
- preventing the secondary effects of adult entertainment establishments --
- prostitution, sexual assaults, and other criminal activity -- is sufficient
- under O'Brien to justify the law's enforcement against nude dancing. The
- prevention of such effects clearly falls within the State's constitutional
- power. In addition, the asserted interest is plainly substantial, and the
- State could have concluded that it is furthered by a prohibition on nude
- dancing, even without localized proof of the harmful effects. See Renton
- v. Playtime Theatres, Inc., 475 U. S. 41, 50, 51. Moreover, the interest
- is unrelated to the suppression of free expression, since the pernicious
- effects are merely associated with nude dancing establishments and are not
- the result of the expression inherent in nude dancing. Id., at 48.
- Finally, the restriction is no greater than is essential to further the
- governmental interest, since pasties and a Gstring moderate expression to a
- minor degree when measured against the dancer's remaining capacity and
- opportunity to express an erotic message. Pp. 1-7.
-
- Rehnquist, C. J., announced the judgment of the Court and delivered an
- opinion in which O'Connor and Kennedy, JJ., joined. Scalia, J., filed an
- opinion concurring in the judgment. Souter, J., filed an opinion
- concurring in the judgment. White, J., filed a dissenting opinion, in
- which Marshall, Blackmun, and Stevens, JJ., joined.
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