Barnes v. Glen Theatre, Inc.
Decided on June 21, 1991; 501 US 560


Nude dancing is not expressive conduct and is not protected by the First Amendment.

I. ISSUES II. CASE SUMMARY III. AMICI CURIAE IV. DECISION V. WIN OR LOSS?
I. ISSUES:

A. Issues Discussed: Obscenity, freedom of expression

B. Legal Question Presented:

Does the enforcement of Indiana's public indecency law to prevent totally nude dancing violate the First Amendment's guarantee of freedom of expression?

II. CASE SUMMARY:

A. Background:

"Respondents, two Indiana establishments wishing to provide totally nude dancing as entertainment and individual dancers employed at those establishments, brought suit in the District Court to enjoin enforcement of the state public indecency law - which requires respondent dancers to wear pasties and a G-string - asserting that the law's prohibition against total nudity in public places violates the First Amendment.

The court held that the nude dancing involved here was not expressive conduct. The Court of Appeals reversed, ruling that nonobscene nude dancing performed for entertainment is protected expression, and that the statute was an improper infringement of that activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers."

On certiorari, the US Supreme Court reversed the judgment of the US Court of Appeals for the Seventh Circuit.
B. Counsel of Record:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
C. The Arguments:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Unavailable Unavailable
III. AMICI CURIAE:
ACLU Side
(Respondent/Appellee)
Opposing Side
(Petitioner/Appellant)
Bruce J. Ennis, Jr., argued the cause for respondents. Lee J. Klein and Bradley J. Shafer filed a brief for respondents Glen Theatre, Inc., et al. Patrick Louis Baude and Charles A. Asher filed a brief for respondents Darlene Miller et al.

Brief of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Spencer Neth, Thomas D. Buckley, Jr., Steven R. Sharpiro, and John A. Powell; for the Georgia on Premise & Lounage Association, Inc., by James A. Walrath; for People for the American Way et al. by Timothy B. Dyk, Robert H. Klonoff, Patricia A. Dunn, Elliot M. Mincberg, Stephen F. Rohde, and Mary D. Dorman.
Wayne E. Uhl, Deputy Attorney General of Indiana, argued the cause for petitioners. With him on the briefs was Linley E. Pearson, Attorney General.

Briefs of amici curiae urging reversal were filed for the State of Arizona et al. be Robert K. Corbin, Attorney General of Arizona, and Steven J. Twist, Chief Assistant Attorney General, Clarine Nardi Riddle, Attorney General of Connecticut, and John J. Kelly, Chief State's Attorney, William L. Webster, Attorney General of Missouri, Lacy H. Thornburg, Attorney General of North Carolina, and Rosalie Simmonds Ballentine, Acting Attorney General of the Virgin Islands; for the American Family Association, Inc., et al. by Alan E. Sears, James Mueller, and Peggy M. Coleman; and for the National Governors' Association et al. by Benna Ruth Solomon and Peter Buscemi.
IV. THE SUPREME COURT'S DECISION:

The US Supreme Court held 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...

The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality...

The States' traditional police power is defined as the authority to provide for the public health, safety, and morals, and such a basis for legislation has been upheld. This governmental interest is unrelated to the suppression of free expression, since public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity.

... Finally, the incidental restriction on First Amendment freedom is no greater than is essential to the furtherance of the governmental interest.

Since the statutory prohibition is not a means to some greater end, but an end itself, it is without cavil that the statute is narrowly tailored."

The US Supreme Court reversed the US Court of Appeals for the Seventh Circuit judgment.

Justice Vote: 4 Pro vs. 5 Con
  • White, B. Pro (Wrote dissenting opinion)
  • Marshall, T. Pro (Joined dissenting opinion)
  • Blackmun, H. Pro (Joined dissenting opinion)
  • Stevens, J. Pro (Joined dissenting opinion)
  • Rehnquist, W. Con (Wrote majority opinion)
  • Scalia, A. Con (Wrote concurring opinion)
  • Souter, D. Con (Wrote concurring opinion)
  • O'Connor, S. Con (Joined majority opinion)
  • Kennedy, A. Con (Joined majority opinion)
V. A WIN OR LOSS FOR THE ACLU?

The ACLU, as amicus curiae, urged affirmance of the judgment of the United States Court of Appeals for the Seventh Circuit; the Supreme Court reversed in a 4-5 vote, giving the ACLU an apparent loss.