16 The New Encyclopedia Britannica 935 (1989). . We think the activity of these dance-hall patrons coming together to engage in recreational dancing -- is not protected by the First Amendment. As Judge Easterbrook put it in his dissent below: does not regulate dancing.
Pp. [This and other public indecency statutes were designed to protect morals and public order. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed "bookstore." A summary and case brief of Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), including the facts, issue, rule of law, holding and reasoning, key terms, and concurrences and dissents. As Judge Posner argued in his thoughtful concurring opinion in the Court of Appeals, the nudity of the dancer is an integral part of the emotions and thoughts that a nude dancing performance evokes. In determining the type of protection, the plurality turned to the "time, place, or manner" test as implemented in With regards to the third part of the O'Brien Test, the plurality stated that the statute was not related to suppressing expression. The plurality's assessment of the artistic merits of nude dancing performances should not be the determining factor in deciding this case. "The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed. Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity.As to the final point of the O'Brien test, the plurality contended that the statute was narrowly tailored to achieve the government interest it sought to promote. The traditional police power of the States is defined as the authority to provide for the public health, safety, and morals, and we have upheld such a basis for legislation. An Indiana law regulating public nudity required dancers to wear "pasties" and a "G-string" when they perform.
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. This is basic dance. As I have pointed out, however, the premise for the Justice's position -- that the statute is a not reach such activity. . Not surprisingly, then, the Court now concedes that "nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment.
In the closing of his opinion, Justice Souter notes that the establishments are perfectly free to convey their erotic message in any other way short of violating obscenity laws. The history of Indiana's public indecency statute shows that it predates barroom nude dancing, and was enacted as a general prohibition. wants some 'entertainment' with his beer or shot of rye.
Therefore, they reason that the application of the Indiana statute to the nude dancing in this case violates the First Amendment, because it fails the third part of the But we do not think that, 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. We reject their claim.The facts appear from the pleadings and findings of the District Court, and are uncontested here. ." (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. Some may view restricting nudity on moral grounds as necessarily related to expression. [That fact dictates the level of First Amendment protection to be accorded the performances at issue here. The court held that the nude dancing involved here was not expressive conduct. 45, ch. The perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. Our society prohibits, and all human societies have prohibited, certain activities not because they harm others but because they are considered, in the traditional phrase, "Since the Indiana regulation is a general law not specifically targeted at expressive conduct, its application to such conduct does not, in my view, implicate the First Amendment.The First Amendment explicitly protects "the freedom of speech [and] of the press" -- oral and written speech -- not "expressive conduct." "Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. . In closing, the plurality reversed the ruling of the Court of Appeals. Nonetheless, the statute's purpose of protecting societal order and morality is clear from its text and history.