Case Summary and Outcome

The Supreme Court of the United States found that although nude dancing was protected under the First Amendment as expressive content, Indiana did not infringe upon the First Amendment rights of the bars or the dancers by imposing certain restrictions. Two establishments in the city of South Bend, the Kitty Kat Lounge and the Glen Theatre, and dancers employed at the establishments, challenged an Indiana statute that made it illegal to dance in the nude as a violation of their First Amendment right to freedom of expression. The Supreme Court reasoned that the statute was narrowly tailored to further a substantial governmental purpose, thus it was constitutional.

Facts

The Kitty Kat Lounge is a business in South Bend, Indiana, that exhibits dancing for customer entertainment and sells alcoholic beverages. Glen Theatre, Inc., (Glen Theatre) has a business location in South Bend, Indiana, as well. Glen Theatre purveys “adult entertainment” which, in addition to movies and books, includes nude and seminude performances and showings of the female body through glass panels. (at 563.) An Indiana statute passed in 1988 (“the statute”) made it illegal to appear nude in a public place.

As a result, dancers at the Kitty Kat Lounge and Glen Theatre have to wear “pasties” and “G-Strings” when dancing to avoid violating the Indiana public nudity statute. Darlene Miller, a dancer at the Kitty Kat Lounge, and Gayle Ann Marie Sutro, a performer at Glen Threatre, both wished to dance nude in the course of their employment at the South Bend establishments because, for one reason, they believe they “would make more money doing so.” (at 563.) As a result, the Kitty Kat Lounge, Glen Theatre, and the dancers (“the challengers”) sued the state of Indiana in federal district court to enjoin enforcement of Indiana’s public nudity statute, arguing that it violated their First Amendment right to freedom of expression — which encompasses the right to nude, erotic dancing.

The case rose to the Seventh Circuit Court of Appeals once before this matter, which ruled on the “overbreadth” argument posed by the challengers, and remanded the case back to the district court to determine the whether the statute’s specific application to nude dancing by the challenging performers violated the First Amendment. The Northern District of Indiana found upon remand that the type of dancing the challengers aspired to perform was not protected by the First Amendment.

On appeal for the second time, the Seventh Circuit Court of Appeals ruled en banc that “nonobscene nude dancing performed for entertainment is expression protected by the First Amendment, and that the public indecency statute was an improper infringement of that expressive activity because its purpose was to prevent the message of eroticism and sexuality conveyed by the dancers.” (at 565.) The Supreme Court granted certiorari to examine the state of Indiana’s claim that its public nudity statute did not violate the First Amendment rights of the challengers.

Decision Overview

Rehnquist, C.J., delivered an opinion of the court, in which O’Connor and Kennedy, JJ., joined.
There were several steps to the inquiry into whether the Indiana public nudity statute violated the First Amendment rights of the dancers by forbidding the nude dancing that they wished to practice at the South Bend establishments.

First, the Court had to determine whether public nude dancing was the type of expressive conduct protected by the First Amendment at all. The Court’s plurality opinion found that a string of prior Supreme Court cases “support the conclusion of the Court of Appeals that nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though … only marginally so.” (at 566.)

Then, the Court had to examine whether the public nudity statute’s restriction on expression was permitted under the First Amendment. The statute did not criminalize nude dancing specifically, but all nudity in public. The ban on nude dancing at places like the Kitty Kat Lounge and Glen Theatre was accomplished indirectly by the general prohibition on public nudity. Because the statute banned nudity of any kind “in public,” it is what is classified by the Supreme Court as a “time, place, or manner” restriction on expression.

Incidental “time, place, or manner” restrictions on expressive conduct or “symbolic speech” combining speech and nonspeech elements in “public forums” are evaluated under the Supreme Court’s rule in United States v. O’Brien, (at 567), which requires:
1. The regulation “is within the constitutional power of the Government”;
2. The regulation “furthers an important or substantial governmental interest”;
3. The “governmental interest is unrelated to the suppression of free expression”;
4. The “incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”

The Supreme Court has long upheld the “traditional police power” of the states “to provide for the public health, safety, and morals” as a basis for laws and regulations. Furthermore, Indiana’s public nudity statute furthered order and morality, a substantial government interest, as demonstrated by a long history of public indecency prohibitions in U.S. statutes and other ancient sources of law. Thus, the first two prongs of the O’Brien test were satisfied.

The reason for the Indiana law was also unrelated to the suppression of freedom of expression, because nudity is not inherently related to expression, and the Court had previously rejected a notion of “expressive conduct” under which virtually any person engaging in any conduct is expressing an idea that would trigger the First Amendment’s protections. The argument that Indiana was trying to suppress the expression of an erotic message was unconvincing, as “the requirement that the dancers don pasties and G-strings does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic,” and the “perceived evil that Indiana seeks to address is not erotic dancing, but public nudity.” (at 571.) The law did not ban erotic dancing but public nudity, and its effect on erotic nude dancing the challengers wished to perform was merely incidental, satisfying the third prong of the O’Brien test.

Given that the interest served by the Indiana statute was the promotion of public order and morals by way of a prohibition on public nudity, the “statutory prohibition is not a means to some greater end, but an end in itself.” (at 572.) Therefore, the law was “narrowly tailored” to further the governmental interest at hand. By satisfying the O’Brien test, “Indiana’s public indecency statute [was] justified despite its incidental limitations on some expressive activity,” in this case nude erotic dancing. (at 568.)

Scalia, J., wrote an opinion concurring in the judgment. Justice Scalia agreed that the Indiana public nudity statute was constitutional, but for different reasons than the plurality opinion. According to Scalia, the First Amendment only protects expressive conduct — as opposed to say, actual speech or the freedom of the press — when “the government prohibits conduct precisely because of its communicative attributes.” (at 577. ) Given the long history of public nudity laws in Indiana and abroad, there is no evidence that Indiana’s public nudity statute was targeting nudity for its communicative attributes. “On its face,” the law does not target expression at all, but merely the act of being nude in public. As such, the public nudity statute does not implicate the First Amendment at all, and the statute was merely a regulation on general conduct. Scalia also did not endorse the view that the promotion of public order and morals was an “important” governmental interest supported by Supreme Court precedent.

Souter, J., concurring in the judgment. Justice Souter found that the dancing at issue with the challengers was expressive content protected by the First Amendment, with “eroticism” being the primary feeling expressed. The opinion also found the O’Brien test mentioned by the plurality was the proper test for evaluating the constitutionality of the Indiana public nudity statute. However, Justice Souter wrote a separate opinion to argue that the law was constitutional “not on the possible sufficiency of society’s moral views to justify the limitations at issue, but on the State’s substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents’ establishments.” (at 582.) Justice Souter thought there was significant empirical evidence and Supreme Court precedent supporting the view that there are harmful secondary effects from adult entertainment establishments, such as crime and urban deterioration. This interest was unrelated to the suppression of the expression in erotic dancing, and thus was an alternative way to satisfy the third part of the O’Brien test from that posed by the plurality opinion.

White, J., wrote a dissenting opinion joined by JJ., Marshall, Blackmun, and Stevens. Justice White agreed with the other justices that the nude dancing at issue was entitled to protection under the First Amendment as expressive conduct. Dancing “is an ancient art form and ‘inherently embodies the expression and communication of ideas and emotions.’” (at 587.) However, Justice White found that the law specifically targeted expressive activity, and was not a law prohibiting general conduct. In such a case, the law should be unconstitutional “absent a compelling state interest supporting the statute,” a different standard than the O’Brien test. The primary reason for prohibiting nudity in public, such as at parks and beaches, is “to protect others from offense.” (at 591.) Such protection from offense “could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively consenting adults who pay money to see these dances.” (at 591.) Therefore, the law did not further a compelling state interest, and was unconstitutional.