Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)

Nude dancing as an issue in earlier cases occurred in the context of alcohol regulations, such as California v. LaRue (1972), or zoning laws as in Schad v. Mt. Ephraim (1981). Although LaRue, in passing, suggested that nude dancing under certain circumstances might be ‘‘expressive conduct’’ entitled to some degree of First Amendment protection, Barnes is the first time that the Supreme Court directly confronted this issue. The question that emerges is whether nude dancing, if it is expressive conduct and not obscene, can be regulated without infringement on the First Amendment.

Indiana’s public indecency law prohibited nudity in public places, and if individuals danced in the nude they were compelled to wear pasties and g-strings. Two establishments, The Kitty Kat Lounge and the Glen Theatre, wanted to provide totally nude dancing and together with one of the dancers challenged the law. The Court of Appeals for the Seventh Circuit declared nonobscene nude dancing performed as entertainment to be an expressive activity, protected by the First Amendment, and struck down Indiana’s law.

In a five-to-four decision reversing the Court of Appeals’ judgment, the members of the majority wrote three separate opinions. Rehnquist, O’Connor, and Kennedy, forming a plurality, stated that ‘‘nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, although we view it as only marginally so.’’ As expressive conduct falling within the ambit of the First Amendment, the standard for review depended on whether the law comported with the four-part test developed in United States v. O’Brien (1968) that wrestled with communicative conduct (in this instance, burning a draft card) or symbolic speech that combined both speech and nonspeech. Applying this test, the three justices concluded Indiana’s statute passed Constitutional muster ‘‘despite its incidental limitations on some expressive activity’’ because it did not target nude dancing per se and because of the state’s superior interest in ‘‘protecting societal order and morality.’’

Scalia disagreed that Indiana’s law implicated the First Amendment, and thus rejected the rationale of the plurality opinion. In his view, Indiana’s law was a general law not specifically directed at expression or prohibiting conduct because of its particular communicative attributes. He favorably quotes the dissenting judge in the lower court who, arguing the law did not regulate dancing but public nudity, noted that ‘‘[a] lmost the entire domain of Indiana’s statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech.’’ Scalia accordingly disagreed that more than normal scrutiny of the law was required or that the O’Brien test was appropriate.

The inability of the five justices to agree on why Indiana’s law was constitutional was met with confusion in the lower courts. Thus, in 2000, the Supreme Court tried a second time to gather a majority around a definitive common rule to guide states and localities on the issue of public nudity statutes. City of Erie v. Pap’s A.M (2000) sustained Barnes and upheld the constitutionality of Erie’s anti-nudity ordinance, which was nearly identical to Indiana’s, but, once again, only a plurality (O’Connor, Rehnquist, Kennedy, and Breyer) coalesced around Barnes and its reasoning, while Souter, Scalia, and Thomas, the other members of the majority (Stevens and Ginsburg dissented) concurred only in the judgment.

ROY B. FLEMMING

Cases and Statutes Cited

• Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) 
• California v. LaRue, 409 U.S. 109 (1972) 
• City of Erie v. Pap’s A.M, 529 U.S. 277 (2000) 
• Schad v. Mt. Ephraim, 452 U.S. 61 (1981) 
• United States v. O’Brien, 391 U.S. 367 (1968)