*1 JOSEPH ST. OF ATTORNEY BARNES, PROSECUTING THEATRE, v. GLEN INDIANA, COUNTY, al. et INC., et al. 21, 1991 June January 1991 Decided Argued 90-26.
No. *2 Wayne Deputy Attorney Uhl, E. General of Indiana, ar- gued petitioners. the cause for With him on the briefs was Linley Attorney Pearson, E. General. argued respondents. Ennis, Jr.,
Bruce the cause J. Bradley respond Lee Klein and filed a J. J. brief for Shafer Theatre, Inc., ents Glen et al. Patrick Louis Baude and respondents Charles A. Asher filed a brief for Darlene Miller * et al. *3 judgment announced the Rehnquist Chief Justice opinion, in the Court and delivered an which Justice O’Con- join. Kennedy nor and Justice
Respondents are two establishments in In- Bend, South provide totally diana, that wish to nude as enter- employed tainment, and individual dancers who are at these urging of amici curiae * Briefs reversal were filed for the Ari State of Corbin, by Attorney Arizona, zona et al. Robert K. General of and Steven Twist, General, Riddle, Attorney J. Assistant Chief Clarine Nardi Attor ney Connecticut, Kelly, General of and Attorney, John J. Chief State’s Webster, Attorney Missouri, Lacy William L. Thornburg, General of H. Attorney Carolina, Ballentine, General of North and Rosalie Simmonds Attorney Acting Virgin Islands; General of the Family for the American Association, Inc., Sears, Mueller, by et al. Alan E. Peggy James and M. Coleman; and for National Governors’ Association et al. Benna Ruth Solomon and Peter Buscemi. urging Briefs of amici curiae affirmance were filed for the American Neth, Jr., by Spencer Liberties et al. Buckley,
Civil Union Thomas D. Ste- Powell; Shapiro, ven R. and A. Georgia Lounge John for the on Premise & Association, Inc., Walrath; People A. Way James for the American Dunn, by Timothy Dyk, Klonoff, B. H. et al. Robert Patricia A. M. Elliot Rohde, Mincberg, Stephen F. Mary and D. Dorman. Clancy pro James J. filed a brief se as amicus curiae. They claim that the First Amendment’s
establishments. guarantee expression prevents In- the State of of freedom of indecency enforcing prevent law diana from its this dancing. reject form of We their claim. pleadings findings appear from the and facts Kitty are here. The Kat
District Court and uncontested Kat), Lounge, (Kitty city Inc. is located the of South Bend. beverages presents “go-go dancing.” It sells alcoholic and proprietor present “totally dancing,” Its desires to but applicable regulating public nudity an Indiana statute re- quires “pasties” “G-strings” that the dancers wear when they paid hourly wage, dance. The dancers are not an but They percent work on commission. receive a 100 commis- during performances. sion on the first drink sales their $60 respondents Darlene one of the in the Miller, action, had Kitty years worked at the Kat for about two at the time this brought. action was Miller dance wishes to nude because money doing she make believes she would more so.
Respondent corporation Theatre, Inc., Glen is an Indiana place primary with of business South Bend. Its business supplying through so-called adult entertainment written printed showings, movie and live materials, entertain- ment at an enclosed “bookstore.” The live entertainment at performances the “bookstore” consists of nude and seminude *4 showings body through glass panels. and of the female Cus- timing in tomers sit a booth and insert coins into a mechanism permits that them to observe live and seminude period dancers, dancers for a of time. One of Glen Theatre’s Gayle pro- Ann has Sutro, danced, modeled, Marie and acted fessionally years, per- in more than 15 addition to her for pornographic in Theatre, formances at the Glen can be seen a nearby App. Pet. movie at a theater. to for Cert. 131-133. Respondents in sued the United States District Court for enjoin the Northern District of Indiana to the enforcement of § public indecency statute, the Indiana Ind. Code 35-45-4-1 564 nudity complete against prohibition asserting its that The District Amendment. places the First public violated
in injunc- prayer for an respondents’ granted originally Court facially The overbroad. finding was statute that the tion, deciding reversed, Circuit Appeals the Seventh for of Court respect in the to the statute litigation previous with pos- precluded the this Court Supreme of Indiana Court the District challenge,1 and remanded sibility a of such pursue claim that their plaintiffs to in order Court applied their as Amendment First violated the statute 287, 288- Pearson, F. 2d 802 dancing. Theatre, Inc. v. Glen (1986). concluded Court the District remand, On 290 indecency stat public give appeared to Supreme Indiana Court attack: overbreadth from a facial to save it limiting construction ute a Rather, may be constitu public. appear nude in right is no “There part some as to allow some required to tolerate tionally the communication when meriting protection, expression form of larger 247, N. E. 2d 272 Ind. Baysinger, v. State is involved.” ideas v. Indi Clark added), sub nom. (1979) dism’d appeals (emphasis 580, 587 Indiana, S. 806 449 U. ana, v. and Dove S. 446 U. re Supreme Court however, the Indiana Baysinger, years Five after holding statute Appeals Court Indiana a decision versed involved appearances theatrical as the activity such apply to “not did obscenity,” in a finding of absent a prohibited herein, may not which Wayne” Fort Erotica in the “Miss nude dance partially involving case 1984). (Ind. The Indiana State, E. 2d 468 N. Erhardt contest. cursory beyond a issues the constitutional did not discuss Supreme Court in attack against constitutional upheld had been that the statute comment statutory prohibition. within fell Erhardt’s Baysinger, and indecency which statute dissented, “a arguing that Hunter Justice My unconstitutionally overbroad. place is any public nudity in prohibits Bay State already been articulated concluding have for so reasons DeBruler, JJ., (Hunter and (1979) N. E. 2d 580 Ind. singer, expressed sim DeBruler 2d, Justice at 225-226. N. E. dissenting).” 468 Therefore, the Indiana Id., at 226. Erhardt. dissent his ilar views the statute reach affirmatively limit the did Supreme Court would Amendment the First extent merely that to the said but Baysinger, applied to some unconstitutional it, might be statute require activities.
565
perform
dancing
plaintiffs
is
type
wish to
these
of
“the
by
activity protected
expressive
of
the Constitution
judgment in
of the de-
favor
and rendered
States,”
United
City
Bend,
South
Theatre, Inc. v. Civil
fendants. Glen
(1988).
appealed
again
Supp.
The case was
419
695 F.
panel
that court reversed
and a
Circuit,
Seventh
dancing
holding
involved here
that the nude
Court,
District
by
protected
expressive
Amendment.
First
conduct
was
(1989).
City
Bend,
F. 2d 826
887
South
Miller v. Civil
Appeals
and the
banc,
the case en
then heard
The Court of
thoughtful
comprehensive and
series of
rendered a
court
majority
opinions.
nude
that nonobscene
concluded
protected
expression
dancing performed
for entertainment
indecency
by
stat-
Amendment, and that
the First
activity
expressive
infringement
improper
that
ute was an
message
prevent
purpose
of eroticism
was to
because its
City
sexuality conveyed
Miller v. Civil
the dancers.
granted certio-
We
Bend,
Several pro dancing kind involved here Inn, In Doran v. Salem Amendment. the First tected (1975), “[A]lthough cus said: we Inc., only tomary type involve of nude ‘barroom’ recognized expression, protected we minimum of barest (1972), that this LaRue, 109, 409 U. S. California might to First and Four be entitled of entertainment form protection circumstances.” under some Amendment teenth Ephraim, we said 452 U. S. Mount In Schad v. recog “[fjurthermore, courts this case as the state pro its First Amendment is not without nized, omitted). (citations regulation” These official tections from Appeals support of the Court the conclusion statements *6 566 performed sought here is dancing to be kind of
that nude perimeters First of the expressive the outer conduct within only marginally This, so. though it as we view Amendment, inquiry. must determine We our not end course, of does protection to the afforded level is an statute Indiana whether must determine
issue, and activity. protected infringement impermissible such, as nude has not banned Indiana, course, nudity The proscribed public the board. across but has Indiana statute Supreme has construed Indiana Court essentially places ac- preclude are in what Kitty Kat Theatre and as the Glen such commodation point respondents are places, out, minors Lounge. In such Respond- nonconsenting viewers. no and there are excluded may license establishments the State that while ents contend geographical limit here, and involved as the ones such way any limit they business, do area which violating them without performance within dances of the petitioners on the contend, The Amendment. the First on restriction that Indiana’s hand, other cases such as place, under restriction or manner” “time, valid Community Non-Violence, 468 U. S. Creative v. Clark (1984). 288 developed place, for eval- was manner” test or “time, The public prop- taking place expression uating on on restrictions “public forum,” erty Ward been dedicated which had (1989), although we Against 781, Racism, 491 U. S. Rock occurring applied it to conduct at least one occasion have on Playtime Theatres, property. private Renton v. See that this Inc., we observed In Clark embody interpreted the same stand- much has been test O’Brien, 391 U. S. States set forth United ards as those rule enunciated therefore, to the turn, and we O’Brien. steps South card on burned his draft
O’Brien presence crowd, a sizable in the Boston Courthouse prohibited violating the know- a statute that convicted of was ing card. He claimed mutilation of such a destruction contrary Amendment because to the First his conviction was “symbolic speech” expressive conduct. his act was — symbolic speech rejected is entitled his contention that Court saying: protection, Amendment to full First alleged assumption “[E]ven communi- on the *7 bring in conduct is sufficient element O’Brien’s cative necessarily play Amendment, it does not the First into registration certificate of a that the destruction follow activity. constitutionally protected This Court has is ‘nonspeech’ ‘speech’ elements are and that when held sufficiently conduct, a same course of combined the regulating governmental important the non- interest justify speech limitations on First incidental element can quality To characterize Amendment freedoms. appear, governmental must Court interest which compelling; variety descriptive employed terms:
has cogent; strong. subordinating; paramount; substantial; imprecision think it terms, in these we inheres Whatever sufficiently justi- regulation government is clear that a power of the Govern- if it is within the constitutional fied govern- important or substantial if it furthers an ment; governmental interest is unrelated if interest; mental expression; suppression if inci- and free alleged freedoms First Amendment on dental restriction greater the furtherance of essential to no than is omitted). (footnotes Id., at 376-377 interest.” four-part Applying above, enunciated we test O’Brien indecency justified public de- statute is find that Indiana’s activity. spite some limitations on its incidental clearly indecency public within the constitu- statute The govern- power substantial and furthers of the State tional impossible than discern, other It is interests. mental governmental exactly in- what statute, from the text they legislators enacted had in mind when the Indiana terest legislative history, this for Indiana does not statute, record highest light and the State’s court has not shed additional purpose. purpose Nonetheless, the statute’s the statute’s protecting morality societal order and is clear from its text history. indecency and Public statutes of this sort of an- are origin presently cient and exist in at least 47 States. Public indecency, including nudity, was a criminal offense at com- recognized mon law, this Court common-lawroots of “gross open indecency” the offense of New Winters v. York, 333 U. S. Public was consid- Roy Sidley, ered an act malum in se. Le Sid. 1664). (K.
Eng. Rep. indecency 1036 B. Public such statutes disapproval people ap- as the one before us reflect moral pearing among strangers public places. in the public indecency long
This statute follows a line of earlier banning public nudity. history Indiana statutes all indecency predates Indiana’s statute shows that it bar general prohibition. room nude and was enacted as a early punishing At least as Indiana had a statute *8 “open any grossly lewdness, and notorious or . . . scandalous indecency.” § 60 public and Rev. Laws Ind., 26, ch. (1831); § 81 gap during Stat., 53, Ind. Rev. ch. A which in no statute was effect was filled the Indiana Supreme Ardery (1877), State, in Court Ind. 328 which held that the court could sustain a convictionfor exhibition of “privates” presence in the of others. The court traced the story Id., offense to Bible Adam and Eve. at 329-330. essentially In 1881, a statute was enacted would remain nearly unchanged century: a for being years age,
“Whoever, over fourteen makes an exposure person public place, indecent of his in a or any place persons in where there are other to of be annoyed thereby, guilty public fended or ... inde cency § 90. . . .” Acts, 37, . 1881 Ind. ch. unchanged it was until language quoted above remained present replaced stat
simultaneously repealed with and §4, ch. 1.2 Art. L. Acts, Ind. Pub. 1976. 1976 ute in designed indecency public were statutes This and other police public The traditional protect order. morals and authority provide for power is defined as the States upheld safety, have morals, and we public and health, legislation. Theatre I v. In Paris Adult a such basis (1973), we said: 49, 61 Slaton, 413 U. S. deciding [v. States, S. 476 354 U.
“In Roth United legislature accepted implicitly (1957)], this Court protect ‘the legitimately conclusion on such a act could morality.’ [Id.], at 485.” and interest order social omitted.) (Emphasis we Hardwick, 478
And in Bowers said: constantly notions of based on however, is law,
“The essentially representing morality, moral if all laws Process the Due under to be invalidated choices are very busy indeed.” courts will Clause, the indecency furthers a substantial statute Thus, morality. protecting government order interest (1988) provides: §35-45-4-1 Indiana Code exposure indecency; indecent “Public intentionally, public place: (a) knowingly or person A who “Sec. 1. intercourse; “(1) engages sexual conduct; “(2) sexual engages in deviate “(3) nudity; appears in a state
“(4) person; or another genitals of himself fondles *9 A misdemeanor. indecency, a Class public commits genitals-, “(b) male or female showing of the human ‘Nudity’ the means showing covering, the fully opaque area, than a with less pubic or buttocks any covering part of fully opaque than a with less of the female breast discernibly in tur- genitals male a covered showing of the nipple, the or the gid state.” expres- suppression of free the to is unrelated interest
This grounds nudity restricting moral may view Some sion. disagree. It can be expression. necessarily We to related types of conduct—in- limitless almost argued, course, “expressive,” public in appearing in the nude cluding —are People go who is true.' this the word in one sense something may expressing be the nude about in rejected this by doing. But the court so themselves about saying: O’Brien, “expressive conduct” expansive notion of apparently limitless accept that an the view cannot “We ‘speech’ the whenever variety labeled can be thereby to ex- engaging intends person in the conduct 376. S., at press 391 U. idea.” an further Stanglin, we 490 U. S. in Dallas
And observed: expression in almost possible kernel to find some
“It is example, walk- activity person every undertakes —for shop- meeting friends at one’s ing street or down the bring the to is not sufficient ping a kernel mall—but such Amendment. protection First activity of the within patrons activity dance-hall of these think We —com- dancing not engage together recreational ing to —is Id., at 25. protected First Amendment.” though prohibiting even Respondents contend expres- suppressing to public generally not related dancing related performance nude prohibiting sion, prevent erotic its to seeks expression State because application of the they message. Therefore, reason violates case in this the nude statute Indiana part of the third it fails the Amendment, because First unre- governmental must be interest viz: the test, O’Brien expression. suppression of free lated to applies statute its Indiana that when we do think But proscribing nu- nightclubs isit in these conveyed message the dancers. dity erotic because *10 pre- performances Presumably are other erotic numerous any similar clubs without at these establishments and sented performers long the wear a State, so interference from requirement clothing. that Likewise, the scant amount of G-strings deprive pasties does not dancers don and conveys; simply message it makes erotic dance of whatever graphic. perceived message slightly evil that less The dancing, nu- but seeks to address is erotic Indiana shapes, ages people dity. appearance all sizes and The convey any example, if little beach, for would in the nude at a prevent message, yet it. still seeks to Pub- the State erotic prevent, nudity whether or the evil the seeks to lic State activity. combined with not it is to the facts is buttressed a reference This conclusion Congress provided anyone An that who Act of of O’Brien. registration destroyed knowingly certifi- Service Selective on burned his certificate an offense. O’Brien cate committed steps influence others Boston Courthouse to of the South upheld adopt his convic- This Court his antiwar beliefs. availability reasoning of issued cer- that the continued tion, purpose legitimate in the and substantial tificates served System. O’Brien’s of the Selective Service administration pur- this of his certificate frustrated destruction deliberate impact pose “[f]or conduct, of his this noncommunicative nothing at 382. S., convicted.” 391 U. else, he was and for burning act in the certificate It was assumed O’Brien’s bring play into in it sufficient to element had a communicative id., it was for the non- Amendment, but the First prosecuted. here was So element that he communicative it was to which statute; while with the Indiana applied it was not the element, had a communicative being simply prohibited, done in the nude. its but that was requires part the in- test of the O’Brien The fourth freedom be no First Amendment cidental restriction govern- greater the furtherance of the essential to than is above, discussion indicated interest. As mental governmental prohibition the text of the interest served disapproval public places among is societal strangers. statutory prohibition anot means to some *11 greater end, but an end in itself. It is without cavil that public indecency “narrowly statute tailored”; is Indiana’s requirement pasties that the dancers wear at least and G- strings necessary modest, and the bare minimum purpose. achieve the State’s judgment Appeals accordingly of the Court of
Reversed. Scalia, Justice concurring judgment. agree judgment Appeals
I of the Court must be my challenged regulation In reversed. view, however, upheld, must be not because it survives some lower level of scrutiny, general First Amendment but as a because, law regulating specifically expres- conduct and not directed at subject scrutiny sion, it is not to First Amendment at all. 1—I public indecency provides:
Indiana’s statute “(a) person knowingly intentionally, A who or in a public place:
“(1) engages intercourse; sexual “(2) engages in deviate sexual conduct; “(3) appears nudity; in a state of
“(4) genitals person; fondles the of himself or another public indecency, commits a A Class misdemeanor.
“(b) ‘Nudity’ showing means the of the human male or genitals, pubic area, female or buttocks with less than a fully opaque covering, showing of the female breast fully covering any opaque part with less than a nipple, showing genitals or the of covered male in a dis- cernibly turgid §35-45-4-1 state.” Ind. Code expression particu- face, On its this law is not directed at Judge put lar. As Easterbrook init his dissent below: “Indi- nudity. It regulates public not regulate dancing. ana does is unre- domain of Indiana’s statute . . Almost the entire . unless nude beaches topless lated to we view expression, Miller v. Civil South City as hot vendors dog speech.” 1990). (CA7 The intent to con- Bend, F. 2d (or other is not a any. message) of eroticism” vey “message offense of inde- statutory element of the necessary statutory by convey- offense nor does one commit cency; eroticism,” so he “message long the most explicit ing acts any specified process.1 not commit of the four does tradition of is in the line of laws long Indiana’s statute never been to run thought which have nudity, against public “the freedom of speech.” understanding afoul of traditional been long indecency including public Public —has — *12 Am. 2d, Lewdness, 50 Jur. an offense at common law. See 472-474 17, 449, (1970); § Obscenity pp. Indecency, on indecent exposure, offense Annot., predicated Criminal v. New York, Winters 997-998 333 996, (1934); 93 A. L. R. statute, first 507, public nudity 515 Indiana’s by many § 60 ch. Ind., 26, predated Rev. Laws of It was gen of nude barroom dancing. years appearance and not at nudity, just in directed at all public eral scope, statutes, down to succeeding and all expression; public 1 gen cannot be characterized as a Respondents assert that the statute conduct, suppression expression, unrelated to because regulation eral attorney general argument in below the put forward oral one defense conveyed by respondents. But that “message to the of eroticism” referred constitutionally ap go the statute could argument seemed to to whether purpose than to what was the plied present performances, rather to the Moreover, in argument below was the alterna legislation. the State’s (1) implicate the First Amendment because tive: that the statute does not (2) any in expression, and that the statute rule not directed at it is a neutral scrutiny because of the interest in First Amendment State’s event survives argument can dancing. The second be claimed suppressing nude barroom not); certainly but it does not (though the first I think it does to contradict ease, any purpose In the clear shown both the abandon it. waive or by litigating refuted a state of the statute cannot be text and historical use single in a case. ment
574 it the case that same. Were been the one, have present practice while only expressive nudity, targeted
Indiana and unclothed purveyors nude beaches eye blind turning Miller, 1120, 2d, 904 F. at tools, see and machine dogs hot as a of con regulation posed be said that what 1121, might communi only reality regulation duct in was general evidence of have adduced no cative conduct. Respondents many indecency brought public have that. Indiana officials element. no communicative having for activities prosecutions re In (Ind. State, 856, 1987); See Bond v. 857 N. E. 2d 515 Preston v. (Ind. Levinson, 1983); 1176 1175, 444 E. 2d N. State, 348 347, (1972); 287 N. E. 2d 354-355, 353, 259 Ind. State, Thomas v. 659-660, 503, 154 N. E. 2d 658, Ind. 238 State, (Ind. Blanton v. E. 2d 190, 533 N. (1958); 504-505 Sweeney (Ind. State, 651, N. E. 2d v. 1989); App. Thompson v. State, 482 N. 1372, 1373-1374 E. 2d 1985); App. State, Adims (Ind. E. 741-742 461 N. 2d 1985); v. App. Elliott, (Ind. 1984); State (Ind. 435 N. E. 2d App. State, (Ind. 1982); Lasko E. 2d 409 N. App. 1980).2 App. post, asserts, 590-591, confidently
The dissent places general purpose restricting offense; from and argues nonconsenting parties to protect see admission-paying patrons consenting, that since only and the apply only cannot dance, purpose respondents ele relate to the communicative must remaining purpose the dissenters believe Perhaps ments of performance. *13 ought to be the reason for re only to others” that “offense no but there is generally, nudity public places stricting 2 statute, interpreted, is not con Respondents also contend applies, alleg since it to which it neutral in the tent Bay v. nudity productions. in theatrical See State edly apply does 236, 247, 580, E. 587 I am not sure that 397 N. 2d singer, 272 Ind. based on content rather represents a distinction theater versus nontheater does, format, argument nonetheless fails for assuming that it but than describes, ante, at n. 1. plurality the reason thinking society shared that that our has ever basis for “you-may-do-what-you-like-so-long-as-it-does- Thoreauvian thinking not-injure-someone-else” less for beau ideal—much purpose The into the Constitution. that was written fully I if violated, think, 60,000 Indiana’s law would be display consenting Hoosier Dome to adults crowded into the genitals if there were not an of another, their to one even society prohibits, in the and all fended innocent crowd. Our prohibited, certain activities not human societies have be they they are considered, cause harm others but because phrase, “contra bonos i. immoral. mores,” e., the traditional society, prohibitions for ex included, In American such have bestiality, drug ample, cockfighting, sadomasochism, suicide, sodomy. great prostitution, there While use, diversity prohibitions of view on whether various of these ready (though abandon, I few should exist have found them), specific principle, that, there is no doubt absent all protection involved, constitutional for the conduct Con they regulate prohibit simply because stitution does not them “morality.” Hardwick, Bowers v. 478 U. S. See (1986) private sodomy (upholding prohibition of homosexual solely presumed majority on “the belief of of the enacted sodomy jurisdiction] [the im that homosexual electorate unacceptable”). Paris Adult Theatre I See also moral and (1973);Dronenburg 49, 68, Zech, 413 U. S. n. Slaton, App. 1388, 1397, n. 741F. 2d 229, 238, D. C. J.). (1984) purpose (opinion In The Bork, and n. 6 its text and the manner of its enforce statute, diana as both moral belief demonstrate, is to enforce traditional ment private parts expose people their indiscrimi should not nately, regardless those who see them are disedi of whether positing has no basis for that is the dissent so, fied. Since present, only thoroughly edified adults are where that, purpose repression of communication.3 must be dissent, 590, 595-596, post, also misunderstands what is meant I mean that the law restricts the tar- “general law.” do not the term *14 576
I—I I—I not specifi- law is a general regulation the Indiana Since to such conduct, its application cally targeted Amendment. First implicate view my conduct does not freedom of “the protects explicitly The First Amendment “ex- written speech and the press” speech [and] —not —-oral even for speech, law restricts any When conduct.” pressive of com- with the suppression to do nothing a that has purpose v. New noise, see Saia (for reduce instance, munication U. S. election cam- York, 334 (1948), regulate 561 558, Buckley Valeo, 16 or to 1, 424 U. S. v. see paigns, (Town Irvington), v. State Schneider littering, see prevent it meet the high, (1939)), 163 we insist that 147, 308 virtually But of justification. standard Amendment First any every con- virtually prohibited and conduct, law restricts ex- only purpose an expressive duct can be performed —if with disagrees pro- the actor the fact that pressive g., Beaches, Miami, Inc. Florida Free e. See, hibition. 1984) (nude (CA11 sunbathers challenging F. 2d nudity was that their “message” law claimed indecency demanded, there- indecent). reasonably It cannot is not incidentally pro- of expression fore, every restriction First normal pass conduct regulating duced law by general cases have of our or even —as some scrutiny, Amendment g., O’Brien, 391 U. S. see, e. United States suggested, (1968) an sub- “important it be justified —that present for the “general” A law places at all times. geted in all conduct that conduct is regard to whether without purposes regulates if it nudity public places, not but Concededly, Indiana bans expressive. (That surprising, since common- is not privacy of the home. within the public nu- offense, against prohibition, runs moral law and traditional Lewdness, 2d, Indecency, g., Am. all E. Jur. against nudity. dity, not (1970)). confirms, rather than But that Obscenity pp. § 472-474 public, refutes, may go nude law: general One nature similarly one thereby convey message, not one intends whether or go expressive. not that private, again whether or nude in *15 holdings require government do our interest. Nor stantial” application the justification: invalidated have never We such that it reached general simply conduct because the law aof gov- purposes expressive and the being engaged in for was sufficiently important state not demonstrate could ernment interest. say no affords Amendment that the First is not to
This
government
the
protection
Where
conduct.
to
precisely
its communicative
prohibits
because
conduct
of
regulation
See,
unconstitutional.
the
attributes, we hold
(burn-
(1990)
310
g.,
496 U. S.
Eichman,
States v.
e. United
(1989) (same);
flag);
397
ing
Johnson, 491 U. S.
Texas v.
(1974) (defacing flag);
Washington,
Spence
“The restricting ing expressive it has in writ- conduct than proscribe spoken not, however, It word. ten or expressive particular elements. because it has generalized guarantee might be termed the more What expression na- makes the communicative freedom of singling inadequate out an basis for ture of conduct (inter- proscription.” 406 S., 491 U. at that conduct for emphasis quotation omitted; marks and citations nal original). admittedly holdings (though not some of our discus-
All our
sion)
only
support
that “the
First Amendment
the conclusion
directly
indirectly
analysis applicable
or
to laws that do not
inquiry
pur-
impede speech
threshold
of whether the
is the
suppress
pose
If not,
communication.
that is
of the law is to
guarantees
far
First Amendment
of the matter so
the end
proceeds
if
to determine
concerned;
so, the court then
are
proscrip-
justification for the
there is substantial
whether
Community
Watt,
Creative Non-Violence
tion.”
for
(1983)
App.
622-623
19, 55-56,
586,
D.
703 F. 2d
U. S.
C.
(footnote
(en banc) (Scalia,
dissenting),
emphasis
omitted;
J.,
Community
omitted),
Creative
rev’d sub nom. Clark v.
for
regime ensures
We have Employment In that of exercise. context: free Amendment Dept. Smith, Human Resources Ore. v. Div., general specifically tar laws not we held practices require heightened religious geted First did not peo scrutiny though they some even diminished Amendment practice religion. government’s ple’s ability “The their socially generally applicable prohibitions ability to enforce carry aspects ability out other conduct, harmful like its measuring depend public policy, the effects of a ‘cannot objector’s spiritual religious governmental devel action on Lyng quoting opment.’” Indian Id., at v. Northwest (1988); Cemetery 485 U. S. see Assn., Protective Gobitis, 310 U. S. Minersville School District also J.) (“Conscientious (1940) (Frankfurter, scruples 594-595 long struggle religious tol in the course of the not, have general to a relieved the individual from obedience eration, religious promotion restriction of be aimed at the law not liefs”). apply approach greater reason to this There is even Relatively regulation *17 conduct. few can to being engaged illegal plausibly conduct is assert that their anyone religious can violate almost reasons; but almost for any expression. case, In the one a means of law as protected against value if the law is not directed other, obeyed. expression) (religion law must be or I I—I KH plurality s conclusions differ I do not think the While entirely reasoning. greatly my endorse its I cannot own, from general apply plurality purports law, to this insofar as to The allegedly expressive regulates an intermedi- conduct, this scrutiny: government in- ate level of First Amendment “‘important regulation substantial,’”. or in the must be terest supra, quoting I have indi- at 377. As O’Brien, ante, at I exists. heightened standard a such believe I do not cated, method moreover, a possible, wherever avoid should think we “impor- judicial requires assessment analysis that govern- especially of government interests —and tance” of morality. aspects of in various interests ment support the plurality cites to the cases Neither 569, is ante, at see here, interest “importance” State's atS.,U. Slaton, 413 I v. Theatre point. Adult Paris uphold laws did S., at U. Hardwick, and Bowers decency and concerns on private based prohibiting were those concerns opinion held that morality; neither but to amounted “substantial,” “important” or particularly regulation. Slaton for basis a rational anything than more it was obscene since which, an exhibition involved unprotected the First public, was extent to some least (1957); S. 354 U. States, United see Roth Amendment, only if invalidated therefore prohibition could the State’s “right the State’s found We basis. rational no it had “legitimate” society” provided a decent a maintain . . . to viewed material toas obscene regulation basis —even held Bowers, we In 59-60. S., at consenting 413U. adults. right, fundamental not a behavior homosexual that since intercourse private homosexual prohibiting Georgia law comply the Due with order only basis a rational needed homosexuality, we opposition Moral Clause. Process I at 196. S., U. basis. rational provided that said, precisely same statute uphold Indiana would supplies basis rational opposition to ground: Moral no has Amendment the First and since prohibition, for its that is needed. than more no application this case ‡ # ‡ pub- prohibition of constitutionally enforce its Indiana *18 nudity to use choose against nudity who those even
lic regulating con- is State communication. a means as employ con- to choose who and those expression, duct, expression that the make sure must a means as duct generally For these they forbidden. is not select judgment reversed. agree should I that the reasons, in the judgment. Souter, concurring Justice protection dancing First Amendment to is entitled Not all catego- previously activity. has expressive This Court as protec- beyond dancing Amendment’s the ballroom rized Stanglin, and 24-25 S.U. Dallas v. tion, be outside dancing likewise exercise would as aerobic dancing performance aas But concern. Amendment’s First gives expres- hypothetical audience actual or to an directed feeling, generalized and where emotion to at least sion expressed, feeling nearly ab- so the nude or is dancer carrying contrary an en- eroticism, clue, some sence experience. con- is the Such of erotic dorsement record. described of the dances tent inherently expres- performance Although such activity, nudity not an per condition, It is a se is not. sive, assumption voluntary condition, without of that and the beyond nothing expresses apparently the view more, appropriate But to the circumstances. is somehow condition implica- voluntary implies and the every idea, some such act voluntary calling all minimal that and so common is thus tion concept expression activity expressive reduce would expression meaningless. A for some point search yield go will often beyond choice to nude minimal in the example, nudity, for maxi- person nothing: choose ex- sunbathing. is combined with when But mum cer- activity, value pressive attractive stimulative its expression, and a dancer’s acts tainly force can enhance the striptease, inte- are going as in a nude, from clothed expressive function. Thus I grated its dance and into the an interest in plurality the dissent agree with the subject here is freely engaging at issue protection. degree Amendment of First *19 analysis appropriate plurality agree with I also the by required protection the First the to determine actual enquiry four-part in United described the Amendment is judging the limits for S. O’Brien, 391 U. States burdening expressive acts as appropriate dis- action state representation. speech I pure nonetheless or tinct from judgment, my not separately in the concurrence to rest write justify society’s sufficiency possible views to moral substantial inter- on the State’s issue, but the limitations secondary combating of adult entertain- effects est in by respondents’ typified sort establishments ment establishments. justification not been has that this is, course, true
It Legislature As the its courts. Indiana’s articulated legislative plurality does not record his- “Indiana observes, highest tory, shed additional court has and the State’s purpose,” While it is cer- light ante, at 568. on the statute’s purposes general tainly to infer circumstances sound such [the morality protecting . . . from stat- and order “of societal history,” ute’s] I we need not so ibid., think that text and legisla- justification identifying limit ourselves petitioners’ may legitimately consider here, tion at issue applied because that the statute assertion prostitution, increases] “encourag[es] sexual such activity.” attracts] Brief for criminal other assaults, 37. Petitioners may ig- justification not be for the statute
This asserted pur- merely extent this is unclear to it what nored because enacting Legislature pose the stat- the Indiana motivated empirical enquiry appropriate into focus is not an ute. Our enacting legislature, but rather actual intent of governmental in the interest not of a current existence or challenged application of the statute of which the service Maryland, 366 U. S. McGowan be constitutional. Cf. regulation conduct,1 least as to At essentially ground statute] [a “[w]e on the decline to void legislature] legislation [the un- had the which unwise power be reenacted its and which could to enact doubted *20 legislator made a ‘wiser’ if another form the same or exact my supra, In speech view, at 384. O'Brien, about it.” prostitution, by petitioners preventing interest asserted activity, although presum- and other criminal assault, sexual applications ably justification statute, is all of a not justify enforcement of the State’s to sufficient under O’Brien type against entertainment at issue of adult the statute here. prevention of such evils that the it is clear outset,
At the power State, which satis- of the constitutional falls within S., at 377. criterion. See U. first fies the O’Brien regulation prong “furthers asks whether O’Brien second governmental important Ibid. interest.” substantial an or plainly one; the a substantial state interest The asserted prohibiting only question of the sort is whether I that our interest. believe “furthers” that at issue here sufficiently question to establish this addressed cases have that it does. Playtime Theatres, Inc., 475 U. S.
In Renton v.
prevent
zoning
designed
city’s
upheld
to
ordinance
we
including
secondary effects,
the crime
harmful
occurrence of
by
approxi-
protecting
entertainment,
adult
associated with
placement
city’s
mately
motion
area from
95%
describing
depicting,
emphasizing
picture
“‘matter
theaters
“specified
“specified
ana-
relating
activities” or
sexual
by patrons therein.’”
...
for observation
tomical areas”
enquiry,
present
importance
particular
to the
Id., at 44. Of
compelled justify
city
Renton was
we held
problems
relating
specifically
to the
studies
its restrictions
(1987) (striking down
Cf.,
“Renton was id., harmful which demonstrated at cities,” and other “of even one with the presence effects correlated secondary Id., cf. 50; at neighborhood.” in a given theater [adult] Theatres, Inc., 427 U. S. Young American Mini 50, 71, ‘adult’ that “a concentration (1976) finding (legislative n. 34 become to deteriorate the area causes movie theaters LaRue, 109, 111 U. S. crime”); focus California associated activity (administrative of criminal (1972) findings entertainment). with adult provide seek to respondents of entertainment
The type Renton, at issue as that the same character plainly Theatres, LaRue. no It therefore is Mini American here is the sort issue that live nude to say leap *21 as the effects secondary pernicious the same to likely produce at issue areas” anatomical “specified displaying adult films this in which Renton. Other from the Circuit cases reported g., e. United See, conclusion. arose confirm litigation 1989) (CA7 Marren, 890 F. (prostitution States 2d 926 States establishment); United dancing with nude associated (same). 1989) Doerr, (CA7 In light F. 2d to combat seeking Renton's legislation that recognition local- not await need entertainment effects adult secondary reason- effects, Indiana could the State of of those ized proof the type nude entertainment forbidding that conclude ably Theatre’s the Glen Lounge Kat Kitty offered at prostitution, interest preventing furthers its “bookstore” our recognition Given crimes. assault, and associated sexual is expression type this protecting interest “society’s that interest than different, lesser, magnitude a wholly Theatres, Mini American debate,” political in untrammeled supra, affirma- that a is required State I do not believe in every this repeatedly issue to litigate to tively undertake applied case. The statute as to of the sort at issue prong here therefore satisfies second of O’Brien.2 governmental The third O’Brien condition is that the inter- suppression expression,” est be “unrelated to the of free governmental atS., 377, and, U. on its face, the interest combating prostitution activity and other criminal is not at inherently expression. all related to The contends, dissent regulate however, that Indiana seeks to nude as its combating secondary means of such effects “because . . . cre- ating emphasizing thoughts [the] [expressed by and ideas dancing] spectators may in the minds of the lead in- prostitution,” post, regulation creased at 592, and that of ex- pressive expression conduct because of the fear that the will prove persuasive inherently suppression related to the expression. free Ibid. major premise reasoning may of the dissent’s be cor- premise describing theory
rect, but its minor
the causal
of In-
regulatory justification
say
pernicious
diana’s
is not. To
secondary
effects are associated with nude
establish-
necessarily
say
ments is not
that such effects result from
persuasive
expression
effect of the
inherent in nude danc-
ing.
say,
only
It is to
rather,
that the effects are correlated
offering
dancing,
with the existence of establishments
such
deciding
precise
without
what the
causes of the correlation
us,
Because there is no
challenge
overbreadth
before
we are not called
upon to
application
decide whether the
of the statute would be valid in
then,
other contexts.
It
enough,
say
secondary
effects ra
*22
rely
tionale
I
open
on which
here
question
would be
to
if the State were to
seek to enforce the
barring expressive nudity
statute
pro
in classes of
readily
ductions that
analogized
could not
to the adult films at issue in
Inc.,
Playtime Theatres,
Renton v.
actually It is for are. vicinity of in prostitution assault the and sexual dence of the concentration results from locations adult entertainment the predisposed or from activities, such to of men of crowds regardless those viewing of whether simple nude bodies of expression neither case engaged or not. In in are bodies through persuasive ef- the run of causation the chain would dancing. component expressive nude of the fect of banning re in nude interest the State’s Because simple with other such of correlation from sults relationship evils the other between from a rather than evils, dancing, component interest is the of the the expression. suppression Renton is of free unrelated support Renton, In persuasive again this conclusion. regulated be adult theaters that an ordinance we held with sec presence was correlated such theaters cause the government ondary had an interest that the local effects (a similar to regulating determination content neutral was expression” suppression de free to the the “unrelated Community Non Creative here, see Clark v. termination (1984)) n. because Violence, 468 U. S. regu of the “justified to the content reference without was original). (emphasis We speech.” S., U. lated whether need decide without this conclusion reached persuasive might ef have been the correlation cause of Similarly being regulated. that were films fect of adult justification “secondary en means that here, effects” dancing “jus against Indiana statute forcement [expression],” regulated content of the to the -without reference tified omitted), (emphasis sufficient, at which is d. ibi satisfy explicit expression,3 sexually in the context least prong test. third O’Brien mindful, Renton, was the Court again I this reach conclusion im expression may be of societal sexually explicit lesser protection Renton, expression. See forms of protection of other portance than the *23 The fourth O’Brien condition, that the restriction be no greater than essential governmental to further the interest, requires little discussion. G-string Pasties and a moderate expression degree, to some only to be sure, but to a de- gree. Dropping the final prohibited, stitch is but the lim- itation is minor ing capacity against when measured the dancer’s remain- opportunity express message. the erotic Nor, so far as we are told, is the employer dancer or her by anything limited short obscenity laws expressing from message an erotic speech representational articulate pornographic means; featuring movie respondents, one example, playing nearby was any without interference from the authorities at the time these cases arose.
Accordingly, I find O’Brien satisfied and concur in the judgment.
Justice White, with whom Justice Marshall, Justice Blackmun, and join, Justice dissenting. Stevens question presented
The first to us in this case is whether dancing performed nonobscene nude as entertainment is ex- pressive protected by the First Amendment. The Appeals Court of held observing it is, that prior that our deci- permit sions no other conclusion. surprisingly, Not then, plurality now concedes that “nude of the kind sought performed to be here is conduct within the perimeters outer of the First Amendment . . . at Ante, 566. This is no recognizing, more than as the Seventh Cir- cuit observed, is an ancient art form and “inher- ently expression embodies the and communication of ideas and emotions.” City Miller v. Civil South Bend, 904 F. (1990)(en banc).1 2d 1081, 1087 supra, 49, at 2, n. citing Young v. American Theatres, Inc., Mini 1 Justice suggests Scalia performance dancing is not inherently expressive activity, ante, see n. but the Court of Appeals has better view: “Dance has been defined as ‘the art of moving body in a rhythmical way, music, usually to express idea, an emotion or to narrate *24 per
Having that nude the conclusion arrived at enjoys protec First Amendment as entertainment formed level of plurality must “determine the that it states tion, protection expressive issue, at to the be afforded imper statute is an the Indiana whether must determine and activity.” protected infringement Ante, that missible plurality guidance, to United States turns 566. For (1968), held that which S. 367 narrowly regulated O’Brien, 391 U. t pursui in forbidden or be conduct could governmental important interest that is substantial of an or plurality expression. The to the content unrelated test in all the O’Brien statute satisfies that the Indiana finds respects. impossible acknowledges plurality to discern that is
The Legislature had in the Indiana which exact state interests plurality statute, Indiana but it enacted the mind when from the statute’s text that it is clear concludes nonetheless protect purpose history “societal is to that the law’s and goes plurality morality.” The on to at 568. Ante, order and itself.’ 16 The New delight in the movement story, simply to take (1989). Inherently, it is the communication Encyclopedia Britannica all varied manifestations of danc- ‘[t]he At the root of or ideas. emotion externalise impulse to resort to movement to the common ing . . . lies means. This is basic rational which we cannot externalise states Martin, recognized Aristotle to the Dance J. Introduction dance.’ represent men’s character as well purpose of dance is ‘to Poetics power of dance was they The raw communicative what do and suffer.’ that the dancer poet Stéphane Mallarmé who declared French noted suggests things which the written work could body . . . ‘writing with her ” descriptive prose.’ dialogue or only paragraphs express several Stanglin, 490 2d, Dallas v. Justice Scalia cites F. at 1085-1086. performance dancing, with that decision dealt social but case, that rejected, which we was not in that dancing; and the submission plaintiff’s associational expressive activity but that dancing was an social halls on the basis of by restricting admission to dance rights were violated inherently expres- if that even also asserts age. The Justice true, sive, nothing it tells us but not. The statement dancing in the nude. about general aas “was enacted statute Indiana’s that conclude ap- added), people (emphasis on ante, at 568
prohibition,” places. The strangers among pearing in the legislation upheld in which we cases points to plurality then ultimately concludes power, police and State’s based government a substantial “furthers statute Indiana that morality.” at 569. Ante, protecting order interest banning nude danc- the basis plurality holds also narrowly expression it is free ing is unrelated interest. the State’s to serve drawn *25 respects. analysis in several erroneous plurality’s opinion concur in his plurality and Justice Scalia
Both the as critical and fundamental judgment a overlook ring in police of their exercise upholding the States’ pect of our cases including upon, they rely O’Brien cases powers. of the None any (1986),involved 186 U. S. Hardwick, 478 Bowers and con proscriptions individual truly general thing than less prohibited example, were individuals O’Brien, In duct. any any in time destroying cards draft their from places the home. private such as completely place, in even regard sodomy, prohibited State Boivers, the in Likewise, including as home might occur, of where the less Em like cases of is true The same case. in that true was Smith, v.Ore. Resources Dept. Human Div., ployment of applicable be though here (1990), not which, peyote were users any claim involve not did cause it in recognized activity, the State’s engaged in drugs even illegal extends preventing use in terest not does Indiana By this case contrast, in the home. into applied to, nu applies be to, or could suggest statute that its un including do not We the home. occurs, dity wherever suggesting to be plurality or Justice Scalia derstand constitutionally an intrusive enact such could that Indiana suggestion would ten a think such prohibition, we do nor Georgia, Stanley S. 394 U. in light decision our able punish the could (1969), that States held we in which possession mere obscenity privacy in the of one’s own home. are attorney general
We
told
of Indiana
that,
Bay singer,
State v.
272 Ind.
236,
Legislators just randomly do not select certain conduct for proscription; they doing have reasons for so and those rea- purpose sons illuminate the passed. of the law that is In- deed, a multiple law purposes. have purpose The of dog parks, appear beaches, hot forbidding people in to nude protect places from of public others is to like stands, and pre purpose possibly of be the not could But that fense. the dancing since barrooms venting in theaters and nude money pay exclusively consenting to adults who are viewers proscription in these purpose of The dances. see these be protect from what State the viewers contexts is dancing message communi nude is the harmful lieves Community Non- why Creative Clark This cates. is for help “In no to the State: is of Violence, 468 U. S. damage parks whether was same to the . . the Clark . camping homeless, in fact
sleepers fun, for were out were symbolic park statement by sleeping make a in wished (Posner, J., at 2d, 904 F. the homeless.” on of behalf perceived in this case: The concurring). cannot be said That by appearing on nude damage interest caused to the parks, not what the said, is I have the streets or preventing in theaters avoid seeks to State perceived is the communi harm There the taverns. us, tells the State now aspect As dance. the erotic cative applying goal agrees, State’s and as Justice Souter the nude statute to neutral” “content as its what describes prostitution, as sexual case is “deterrence in this degradation other ac activity, women, criminal saults, ” Reply family Brief structure. down break tivities which goals, de however, these The attainment 11. Petitioners activity. preventing pends an require- third that the plurality holds nevertheless The governmental interest test, of the O’Brien ment expression, satisfied suppression free unrelated dancing, the State to nude applying the statute because message con- the erotic “proscribing because suggests plurality veyed Ante, 570. the dancers.” dancing that not ban does the State because that this is so *27 dancing only message; that is nude erotic it is an erotic sends dancing pub- but perceived not erotic is evil The forbidden. any despite im- prohibited incidental may nudity, be which lie transparently analysis activity. is This expressive pact on erroneous. plurality that concedes the arriving conclusion, its
In message that conveys and concedes dancing erotic an nude pasties and wore if dancers message the muted be would the impact the of erotic or G-strings. emotional Indeed, the nudity performers. As of the the intensified dance is opinion concurring thoughtful argued in his Judge Posner integral nudity anis the dancer Appeals, the the Court dancing per- thoughts a that nude part and the emotions sight The of a at 1090-1098. 2d, 904 F. evokes. formance generally partially clothed, dancer fully or even clothed, spectator that of impact than aon different a far have will performed. nu- The dance is if same dancer, even nude component not dance, expressive dity an is itself pointed previously have merely We “conduct.” incidental “ protected place ‘[n]udity otherwise does alone’ out that Amendment.” of the First the mantle outside material 61, 66 Ephraim, v. Mt. Schad statutory prohi- that the being case, cannot This expressive the State Since conduct. to unrelated is bition pasties they and G- wear perform if permits the dancers precisely dancing, of the because it is strings nude but forbids perform- expressive nude content distinctive, apply the seeks State in this case at issue ances dancing per- only statutory prohibition. It because feelings of eroticism generate and may emotions formances spectators the State seeks sensuality among assump- apparently activity, regulate such thoughts ideas emphasizing creating such tion pros- spectators lead to increased minds generating But degradation of women. and the titution communica- essence thoughts, and emotions ideas, performances can- of nude element tion.
593 independent of neatly pigeonholed “conduct” mere as be not component any expressive the dance.2 protection First Amendment level of the
That dictates fact In here. Texas performances at issue the accorded to be observed: the Court 411-412 397, Johnson, 491 U. S. flag law Texas violated of the treatment Johnson’s “Whether impact likely of his ex- depended communicative on the thus subject the State’s therefore pressive . .We must . conduct. symbolic special preserving character the interest asserted Barry, scrutiny.’ exacting Boos v. flag most to ‘the the [(1988)].” based restrictions Content 321 [312], 485 U. S. accomplish narrowly only drawn to upheld if be “will Grace, States governmental compelling interest.” United Cal., (1983); Communications 177 Sable 171, 461 U. S. (1989). Nothing be could 492 U. S. FCC, Inc. v. cases. our from clearer Lounge may Kitty not be Kat performances in the
That the appeal Court, is to the say not high least, and the art, to ignoring distorting settled doctrine. hardly excuse an of nude merits artistic assessment The Court’s determining decid- factor in the performances should not largely “[I]t Harlan: is of Justice ing In words case. this principled deci- make cannot governmental officials because requirement the third plurality agrees with Souter Justice there not certain that only he is satisfied, because but is test of the O’Brien dancing and conveyed message between connection is a causal ante, at 585. Jus prevent. See seeking to the State evils which If plurality. that of the flawed as analysis is least at tice Souter’s connection between is no causal that there correct Souter Justice negative sec here and dancing at issue conveyed by the nude message not have regulate, State does desires ondary that the State effects dancing that is on nude prohibition for its absolute basis a rational even “con Furthermore, problem is the real if the expressive. admittedly ante, evils, designated to the predisposed” of men of crowds centration prob address State requires that the Amendment First then the expres category of banning entire an include that does in a lem fashion Theatres, Inc., 475 U. S. Playtime activity. Renton v. See sive matters of taste leaves area that the Constitution
sions
this
largely
style
v. California,
individual.” Cohen
to the
so
(1971). “[W]hilethe entertainment afforded
403 U. S.
pay
who can
to those
at Lincoln Center
a nude ballet
(as
by judges)
vastly
price may
viewed
content
differ
*29
(as
critics), may
quality
not differ
substance
viewed
person
. . . wants some
who
from the dance viewed
rye.”
Inn,
or shot of
Salem
his beer
‘entertainment’ with
(CA2 1974),
part
aff’d in
21, n. 3
Frank,
18,
Inc.
501 F. 2d
v.
(1975).
Inn, Inc., 422
U. S.
sub nom. Doran v. Salem
beyond
go
say-
plurality
do not
and Justice
The
Souter
important
ing
here are
and
interests asserted
that the state
compelling interests,
if there were
substantial. But even
narrowly drawn.
If the State is
the Indiana statute is not
prostitution
genuinely
evils,
and associated
concerned with
type
or the
think,
seems to
as Justice
conduct.
Souter
occurring
LaRue, 409
v.
U. S. 109
that was
California
adopt
that do not interfere with the
it can
restrictions
dancing performances.
expressiveness
nude
of nonobscene
require
per-
perhaps
that, while
instance, the State could
For
forming,
performers
all times a certain mini-
remain at
nude
spectators,
nude entertainment
be
mum distance from
provid-
or even that establishments
hours,
limited to certain
dispersed throughout
city.
ing
such entertainment
(1986).
Playtime Theatres, Inc., Renton v.
Cf.
authority
clearly
to criminalize
has
Likewise,
State
Banning
prostitution
an entire cate-
and obscene behavior.
activity,
generally
gory
does not sat-
however,
tailoring requirement
isfy
First
of strict
Amend-
the narrow
Frisby
scrutiny.
Schultz,
487 U.
v.
S.
ment
See
if
Furthermore,
barrooms,
nude
compared
establishments, is the most worrisome
with other
Twenty-first
problem,
Amendment
could invoke its
the State
appropriate regulation.
powers
impose
New York State
and
(1981) (per
Authority
Bellanca,
Liquor
As plu- supporting ling statute. Neither the interest state rality suggest could withstand that the statute nor the State scrutiny under that standard. plural- to those of the views are similar Scalia’s
Justice ity defects. The Justice asserts suffer from the same impli- barring specified general conduct does not law that a purpose of the law is to First Amendment unless cate the expressive quality suppress conduct, the forbidden protections purpose, are First Amendment absent such that, simply triggered the incidental effect of the law because unquestionably expressive. proscribe conduct that is is to Community Watt, 227 U. S. Non-Violence Cf. Creative (1983)(Scalia, App. J., 622-623 dis- D. 703 F. 2d C. proposition application senting). to this Justice’s general simple law The statute at issue is to state: case including public places, banning appearances in bar- *30 showing purpose theaters. There is no rooms and expressive regulate general conduct; hence, law was to this dancing in and nude the- Amendment is irrelevant the First irrespective of the ex- forbidden, and barrooms aters dancing. pressiveness of the premise pointed the for the Jus- out, however,
I As have type general position the is a law of the statute tice’s —that contemplate in case. Refer- nonexistent this our cases —is hypothetical clear. makes this Scalia’s own ence to Justice agree that the Indiana statute We with Justice Scalia consenting expose-them- permit Hoosiers to 60,000 would not one can in the Hoosier Dome. No to each other selves Hoosiers would be 60,000 that those same doubt, however, respective perfectly all across In- their homes free to drive to parade cavort, and revel in around, there, to and, diana once It dif- relatives and friends. is front of the nude for hours morality any why is less interest see the State’s ficult to sug- especially seems to if, as Justice situation, Scalia clearly inherently nudity gest, the statute does evil, but is pointed activity. earlier, the out As we not reach such requires proscription general truly enact failure to State’s scrutiny the State the distinctions of the reasons closer supra, at 590. has drawn. See applying purpose previously, the law explained the
As respondents’ dancing performances establish- being exposed prevent from customers their ments is to dancing. aspects of nude communicative to the distinctive fully is being observation case, That Scalia’s Justice prohibits government applicable “Where here: hold attributes, we precisely its communicative because of 577. regulation Ante, at unconstitutional.” help In does not decision The O’Brien Justice Scalia. plurality’s, position, would eviscerate like deed, his Dept. Employment Re Div., Human O’Brien test. likewise not Smith, 494 S. U. sources Ore. dancing, applied tar to nude point. law, Indiana activity in a gets in Indiana danc itself; message such danc ing performance a crime because drugs was not ing Smith, In the use of communicates. part occurred within the was of or the use criminal because ceremony, religious protected but be of an otherwise course supported general and was law made so cause religious in others. context as in the same interests judgment Accordingly, the Court of I affirm the would judgment. Appeals, this Court’s dissent from