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Barnes v. Glen Theatre, Inc.

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Brief Fact Summary.

The respondent challenged the Indiana statutory requirement that the dancers in the establishments must wear pasties and G-string does not violate the First Amendment.

Synopsis of Rule of Law.

Any incidental restriction on First Amendment freedom shall not be greater than is essential to the furtherance of the government interest. The statutory provision is not a means to some greater end, but an end in itself.

Points of Law - Legal Principles in this Case for Law Students.

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 which is sufficient, at least in the context of sexually explicit expression, to satisfy the third prong of the O'Brien test.

View Full Point of Law
Facts.

The Kitty Kat Lounge 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. Respondent Glen Theater is an Indiana corporation with a place of business in South Bend. Its primary business is supplying adult entertainment through written and printed materials, movie showings and live entertainments 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 nude dancers for a period of time.

Issue.

Does the Indiana statute regulating public nudity that requires that the dancers wear “pasties” and a “G-string” when they dance violate the Constitution?

Held.

No, Indiana’s public indecency statute is justified despite its incidental limitations on some expressive activity. The public indecency is clearly within the constitutional power of the State and furthers substantial governmental interests. The statute’s purpose of protecting societal order and morality is clear from its text and history. Therefore, the statute here does not violate the Constitution.

Dissent.

Justice White

The Indiana statute is not a general prohibition of the type the Court has upheld in prior cases. The purpose of forbidding people from appearing nude in public is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters since the viewers are exclusively consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates. Thus, it cannot be that the statutory prohibition is unrelated to expressive conduct. Because the alleged state interest does not justify the regulation, the statute at issue violates the First Amendment.

Concurrence.

Justice Scalia

Because the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not implicate the First Amendment. Our society prohibits, and all human activities have prohibited, certain activities not because they harm others but because they are considered immoral. In American society, such prohibitions have included sadomasochism, cockfighting, suicide, drug use, prostitution, and sodomy. While there may be great diversity of view on whether various of these prohibitions should exist, there is no doubt that, absent specific constitutional protection for the conduct involved, the Constitution does not prohibit them simply because they regulate morality. The purpose of the Indiana statute is to enforce the traditional moral belief that people should not expose their private parts indiscriminately.

Discussion.

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. Public indecency statutes such as the one here 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. This interest is unrelated to the suppression of free expression. Though some may argue that almost limitless types of conduct, including appearing in the nude in public, are expressive, the court rejected this expansive notion of expressive conduct. Moreover, 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.


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