# Barnes v. Glen Theatre Inc.

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## Concurring Opinions

    Scalia
    Souter

## Dissenting Opinion

    White
United States Supreme Court
501 U.S. 560
Barnes v. Glen Theatre Inc.
No. 90-26 Argued: Jan. 8, 1991. --- Decided: June 21, 1991
Syllabus
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.
Held: The judgment is reversed.
904 F.2d 1081 (CA9 1990), reversed.
The Chief Justice, joined by Justice O'CONNOR and Justice KENNEDY, concluded 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. Pp. 565-572.
(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. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648. P. 565-572.
(b) Applying the four-part test of United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672 which rejected the contention that symbolic speech is entitled to full First Amendment protection-the statute is justified despite its incidental limitations on some expressive activity. The law is clearly within the State's constitutional power. And it furthers a substantial governmental interest in protecting societal order and morality. Public indecency statutes reflect moral disapproval of people appearing in the nude among strangers in public places, and this particular law follows a line of state laws, dating back to 1831, banning public nudity. 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. See, e.g., Paris Adult Theatre I v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446. 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. The law does not proscribe nudity in these establishments because the dancers are conveying an erotic message. To the contrary, an erotic performance may be presented without any state interference, so long as the performers wear a scant amount of clothing. 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. Pp. 566-572.
Justice SCALIA concluded that the statute-as a general law regulating conduct and not specifically directed at expression, either in practice or on its face-is not subject to normal First Amendment scrutiny and should be upheld on the ground that moral opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Division, Oregon Dept. of Human Resources v. Smith, 494 U.S. ----, 110 S.Ct. 1595, 108 L.Ed.2d 876. There is no intermediate level of scrutiny requiring that an incidental restriction on expression, such as that involved here, be justified by an important or substantial governmental interest. Pp. 2458-2463.
Justice SOUTER, agreeing that the nude dancing at issue here is subject to a degree of First Amendment protection, and that the test of United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, is the appropriate analysis to determine the actual protection required, concluded that the State's interest in preventing the secondary effects of adult entertainment establishments prostitution, sexual assaults, and other criminal activity-is sufficient under O'Brien to justify the law's enforcement against nude dancing. The prevention of such effects clearly falls within the State's constitutional power. In addition, the asserted interest is plainly substantial, and the State could have concluded that it is furthered by a prohibition on nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50, 51, 106 S.Ct. 925, 930, 930, 89 L.Ed.2d 29. Moreover, the interest is unrelated to the suppression of free expression, since the pernicious effects are merely associated with nude dancing establishments and are not the result of the expression inherent in nude dancing. Id., at 48, 106 S.Ct., at 929. Finally, the restriction is no greater than is essential to further the governmental interest, since pasties and a G-string moderate expression to a minor degree when measured against the dancer's remaining capacity and opportunity to express an erotic message. Pp. 2458-2462.
REHNQUIST, C.J., announced the judgment of the Court and delivered an opinion in which O'CONNOR and KENNEDY, JJ., joined. SCALIA, J., filed an opinion concurring in the judgment. SOUTER, J., filed an opinion concurring in the judgment. WHITE, J., filed a dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ., joined.
Wayne E. Uhl, Nashville, Tenn., for petitioners.
Bruce J. Ennis, Jr., Washington, D.C., for respondents.
Chief Justice REHNQUIST delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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