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Keywords

statuteinjunctionappealregulationrespondent
statute

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Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504, 59 USLW 4745

Facts

The case involved two establishments in South Bend, Indiana, that wished to provide totally nude dancing as entertainment, along with individual dancers employed at these establishments. The Indiana public indecency statute required dancers to wear pasties and G-strings, which the respondents argued violated their First Amendment rights. The District Court initially granted an injunction against the enforcement of the statute, but this was reversed by the Court of Appeals, which found that nude dancing was protected expression. The case went through several appeals, ultimately reaching the Supreme Court.

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 “G-strings” when they dance.

Issue

Does the enforcement of Indiana's public indecency statute, which requires dancers to wear pasties and G-strings, violate the First Amendment's guarantee of freedom of expression?

Does the enforcement of Indiana's public indecency statute, which requires dancers to wear pasties and G-strings, violate the First Amendment's guarantee of freedom of expression?

Rule

The Supreme Court applied the four-part test from United States v. O'Brien, which allows for incidental limitations on expressive conduct if the regulation is within the government's constitutional power, furthers a substantial governmental interest, is unrelated to the suppression of free expression, and the incidental restriction is no greater than essential to further that interest.

Applying the four-part test of United States v. O'Brien, 391 U.S. 367, 376–377, 88 S.Ct. 1673, 1678–1679, 20 L.Ed.2d 672 —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.

Analysis

The Court found that the Indiana public indecency statute was justified despite its incidental limitations on expressive activity. The law was determined to be within the state's constitutional power and served a substantial governmental interest in protecting societal order and morality. The Court concluded that the statute's purpose was to prevent public nudity, not to suppress the erotic message conveyed by the dancers, and that the requirement for dancers to wear pasties and G-strings was a minimal restriction on their expressive conduct.

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.

Conclusion

The Supreme Court reversed the judgment of the Court of Appeals, holding that the enforcement of Indiana's public indecency law did not violate the First Amendment.

The judgment is reversed.

Who won?

The State of Indiana prevailed in the case, as the Supreme Court upheld the public indecency statute, finding that it served a legitimate governmental interest in regulating public nudity.

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.

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