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Barnes v. Glen Theatre

Supreme Court of the United States

January 8, 1991, Argued ; June 21, 1991, Decided

No. 90-26

Opinion

 [*562]   [***509]   [**2458]  CHIEF JUSTICE REHNQUIST announced the judgment of the Court and delivered an opinion, in which JUSTICE O'CONNOR and JUSTICE KENNEDY join.

 Respondents are two establishments in South Bend, Indiana, that wish to provide totally nude dancing as entertainment, and individual dancers who are employed at these  [*563]  establishments. They claim that the First Amendment's guarantee of freedom of expression prevents the State of Indiana from enforcing its public indecency law to prevent this form of dancing. We reject their claim.

The facts  [****6]  appear from the pleadings and findings of the District Court and are uncontested here. The Kitty Kat Lounge, Inc. (Kitty Kat), is located in the city of South Bend. It sells alcoholic beverages and presents "go-go dancing." Its proprietor desires to present "totally nude dancing," but an applicable Indiana statute regulating public nudity requires that the dancers wear "pasties"  [**2459]  and "G-strings" when they dance. The dancers are not paid an hourly wage, but work on commission. They receive a 100 percent commission on the first $ 60 in drink sales during their performances. Darlene Miller, one of the respondents in the action, had worked at the Kitty Kat for about two years at the time this action was brought. Miller wishes to dance nude because she believes she would make more money doing so.

Respondent Glen Theatre, Inc., is an Indiana corporation with a place of business in South Bend. Its primary business is supplying so-called adult entertainment through written and printed materials, movie showings, and live entertainment at an enclosed "bookstore." The live entertainment at the "bookstore" consists of nude and seminude performances and showings of the female body through glass  [****7]  panels. Customers sit  [***510]  in a booth and insert coins into a timing mechanism that permits them to observe the live nude and seminude dancers for a period of time. One of Glen Theatre's dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted professionally for more than 15 years, and in addition to her performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. for Cert. 131-133.

Respondents sued in the United States District Court for the Northern District of Indiana to enjoin the enforcement of the Indiana public indecency statute, Ind. Code § 35-45-4-1  [*564]  (1988), asserting that its prohibition against complete nudity in public places violated the First Amendment. The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad. The Court of Appeals for the Seventh Circuit reversed, deciding that previous litigation with respect to the statute in the Supreme Court of Indiana and this Court precluded the possibility of such a challenge, 2 and remanded to the District Court in order for the plaintiffs to pursue their claim that the statute violated the First Amendment as applied  [****8]  to their dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 288-290 (1986). On remand, the District Court concluded that  [*565]  "the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States," and rendered judgment in favor of the defendants.  Glen Theatre, Inc. v. Civil City of South Bend, 695 F. Supp. 414, 419 (1988). The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment.  [**2460]  Miller v. Civil City of South Bend, 887 F.2d 826 (1989). The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions. The majority concluded that nonobscene nude dancing performed  [***511]  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. Miller v. Civil City of South Bend, 904 F.2d 1081 (1990).  [****9]  We granted certiorari, 498 U.S. 807 (1990), and now hold that the Indiana statutory requirement that the dancers in the establishments involved in this case must wear pasties and G-strings does not violate the First Amendment.

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501 U.S. 560 *; 111 S. Ct. 2456 **; 115 L. Ed. 2d 504 ***; 1991 U.S. LEXIS 3633 ****; 59 U.S.L.W. 4745; 91 Cal. Daily Op. Service 4731; 91 Daily Journal DAR 7362

MICHAEL BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, ET AL. v. GLEN THEATRE, INC., ET AL.

Prior History:  [****1]  ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.

Disposition: 904 F.2d 1081, reversed.

CORE TERMS

nude dancing, nudity, dancing, regulation, nude, plurality, indecency, governmental interest, expressive conduct, dancers, message, erotic, cases, suppression, expressive activity, establishments, entertainment, prostitution, morality, restricting, unrelated, theaters, public place, adult, secondary effect, free expression, incidental, evils, appearing, conveyed

Constitutional Law, Fundamental Freedoms, Judicial & Legislative Restraints, Time, Place & Manner Restrictions, Bill of Rights, General Overview, Freedom of Speech, Expressive Conduct, Obscenity, Political Speech, Scope, Criminal Law & Procedure, Sex Crimes, Obscenity, Governments, Police Powers, Real Property Law, Lease Agreements, Commercial Leases, Shopping Center Leases