Respondents object to enforcement of a public indecency statute providing that “a person who knowingly or intentionally, in a public place, appears in a state of nudity commits public indecency, a misdemeanor and defining nudity as showing of the human male or female genitals, public area with less than a fully opaque covering.” Respondents claimed that Indiana’s prohibition against complete nudity in public places violated the First Amendment.
A statute that seeks to restrict expressive conduct is justified if it furthers substantial government interest, which is not related to the suppression of free expression.
Respondents Kitty Kat Lounge and Glen Theatre, two establishments in Indiana, and individual dancers employed there wish to provide totally nude dancing as entertainment. The two establishments presents nude performances and showings of the female body. Customers are permitted to observe the nude dancers for a period of time. The Indiana statute prohibits anyone from knowingly appearing in a state of nudity in a public place. The respondents challenged the Indiana statute.
Does the Indiana statute that prohibits anyone from knowingly appearing in a state of nudity in a public place violate the First Amendment?
No, Indiana’s public indecency statute is justified despite its incidental limitations on some expressive activity because the public indecency statute is clearly within the constitutional power of the State and furthers substantial governmental interests.
The statutory prohibition cannot be said to be unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties but forbids nude dancing, it is because of the distinctive, expressive content of the nude dancing performances at issue that the State seeks to apply the statutory prohibition. It is only because nude dancing performances may generate emotions and feelings of eroticism among the spectators that the State seeks to regulate such expressive activity. Thus, the statute at issue violates the First Amendment.
Justice Scalia and Souter
Scalia: The statute at issue is a general law regulating conduct and not specifically directed at expression and thus it is not subject to First Amendment scrutiny at all. Indiana’s statute is in the line of a long tradition of laws against public nudity, which the Court has never considered to violate the freedom of speech. Virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose. However, not every restriction of expression incidentally produced by a general law regulating conduct passes the First Amendment scrutiny.
Souter: The government of Indiana has legitimate interests in enacting the statute. It has sought to restrict prostitution, reduce sexual assaults, and lower other criminal activity. Such interests alone justify the statute.
While this Court cannot discern exactly what governmental interest the Indiana legislature had in mind when it enacted the statute, the statute’s purpose of protecting societal order and morality is clear from its text and history. Public indecency of this kind are of ancient origin and currently exist in 47 States. Public indecency including nudity was a criminal offense at common law. Moreover, Indiana’s interest is unrelated to the suppression of free expression. Some may view regulating nudity on moral grounds relates to expression. However, this Court has rejected the view that an apparently limitless variety of conduct can be labeled as ‘speech’ whenever an individual engaging in the conduct purports to express an idea.