Barnes v. Glen Theatre, Inc.

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501 U.S. 560 (1991), argued 8 Jan. 1991, decided 21 June 1991 by vote of 5 to 4; Rehnquist for the Court, White, joined by Marshall, Blackmun, and Stevens, in dissent. In this case the Supreme Court upheld an Indiana statute that prohibited the knowing or intentional appearance in public in a condition of nudity; as applied in this case it required female dancers to wear “pasties” and a “G-string” when performing. Respondents were two South Bend establishments that provided totally nude dancing as entertainment. In Schad v. Borough of Mount Ephraim (1981), the Court had ruled that barroom-type nude dancing, which was expressive conduct, merited some First Amendment protection. But the ordinance in Schad covered all live entertainment, making it both more content-specific than Indiana's statute and overbroad by being applicable to other forms of protected expression. Indiana's statute prohibited all forms of public nudity, not simply live entertainment.

The Court treated Indiana's law as a “time, place, and manner” measure that regulated the incidental effects of speech. Such regulation is valid if it satisfies a four-part test developed in United States v. O’Brien (1968): if it is “within the constitutional power of the government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest” (pp. 376–377).

Justice William Rehnquist concluded that the Indiana law met this test. Most importantly and controversially, he maintained that the measure was “unrelated to the suppression of free expression” because “the perceived evil that Indiana seeks to address is not erotic dancing, but public nudity” (pp. 2461, 2463). The breadth of Indiana's statute saved it in this regard.

Justice Byron White's dissent was directed primarily to this key contention. Because the dancers’ nudity is itself an important expressive component of their dance, “it cannot be said that the statutory prohibition is unrelated to expressive conduct” (p. 2474).

Donald A. Downs

Subjects: Law.

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