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Law School Case Brief

Barnes v. Glen Theatre - 501 U.S. 560, 111 S. Ct. 2456 (1991)


When "speech" and "non-speech" elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on U.S. Const. amend. I freedoms. To characterize the quality of the governmental interest which must appear, the court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, it is clear that a government regulation is sufficiently justified 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.


An Indiana statute made it a misdemeanor to appear in a public place "in a state of nudity." Within the statutory definition of "nudity" was the showing of: (1) the female genitals, pubic area, or buttocks with less than a fully opaque covering, or; (2) the female *** with less than a fully opaque covering of any part of the nipple. As a result, the statute effectively required female "nude" dancers to wear at least "pasties" and a "G-string" while dancing. Plaintiffs Glen Theater, Inc. and The Kitty Kat Lounge, Inc., which were two establishments in the defendant City of South Bend ("City") seeking to provide totally nude dancing as entertainment, together with plaintiffs Darlene Miller and Gayle Ann Marie Sutro, who were dancers employed at those establishments, filed a lawsuit in federal district court against the City and various state and local officials to enjoin the enforcement of the statute, on the ground that the statute violated the First Amendment of the Federal Constitution. The district court, granting an injunction, held that the statute was facially overbroad. On appeal, the appellate court reversed and remanded the case to the district court in order to determine whether the First Amendment was violated by the statute as applied to the type of dancing at issue. On remand, the district court held that such dancing was not protected expressive activity, and accordingly judgment was rendered for defendants. On further appeal, a panel of the court of appeals reversed, holding that the dancing at issue was expressive conduct protected by the First Amendment. On rehearing en banc, the court of appeals: (1) held that the Indiana statute was an improper infringement of expressive activity, because the statute's purpose was to prevent the message of eroticism and sexuality conveyed by the dancers in question; and (2) enjoined the State from enforcing the statute against plaintiffs so as to prohibit non-obscene nude dancing as entertainment. Defendants were granted a writ of certiorari.


Did the Indiana statute requiring "nude" dancers to wear pasties and G-strings violate the First Amendment?




The Supreme Court of the United States reversed the judgment of the court of appeals. The Court ruled that nude dancing as entertainment was expressive conduct within the outer perimeters of the First Amendment. However, the Court ruled, the application of the Indiana statute to such dancing was justified, despite the statute's incidental limitations on some expressive activity, because: (1) the statute was within the state's constitutional power; (2) the statute was designed to protect morals and public order and thus furthered a substantial government interest; (3) that substantial government interest was unrelated to the suppression of free expression, in that the perceived evil that Indiana sought to address was not erotic dancing but rather public nudity, and; (4) the requirement that the dancers wear at least "pasties" and a "G-string" was narrowly tailored to achieve the state's purpose.

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