Vice Squad
Thursday, May 27, 2004
Nude Dancing Reprise: The Barnes Case

If you want to dance in the nude in the privacy of your own home, among adult friends and relatives, then you have my blessing -- more importantly, you have the government's blessing. If you want to operate a club open to the public (adults only, of course) in which some of your employees dance in the nude, however, things get a bit more complicated -- the extent of their Constitutional rights to dance undraped may depend on the Federal District in which your establishment resides. The reason that the constraints on regulating nude dancing are not more uniform (ha!) is that the Supreme Court decisions that are the basis for the rules have not provided authoritative majority opinions.

You might ask what the Constitution has to do with nude dancing. You would not be alone: Justice Scalia essentially asks that question in his concurring opinion in Barnes v. Glen Theatre, 501 U.S. 560 (1991), answering that a general law regulating nude dancing concerns conduct, not expression, and thus "is not subject to First-Amendment scrutiny at all." But the Supreme Court as a whole (including the other eight justices in Barnes) has long held that nude dancing is expressive conduct (like flag burning, in that respect) and hence is entitled to free speech guardianship...though "it falls only within the outer ambit of the First Amendment's protection [Justice O'Connor opinion, Erie v. Pap's A.M., 529 U.S. 277 (2000)]." Once granting nude dancing the status of symbolic speech, the Supreme Court then takes the approach that it has developed towards regulations over other forms of symbolic speech -- and in particular, draft card burning -- and applies that approach to nude dancing regulations.

In 1988, the state of Indiana enacted a law that banned complete nudity in public places, including adult entertainment establishments. An Indiana corporation whose business included nude peep shows sued the state, claiming that the public nudity prohibition violated the First Amendment. And thus was born the case that became Barnes v. Glen Theatre.

Chief Justice Rehnquist wrote the opinion of the court for Barnes, though the Chief Justice was joined only by Justices O'Connor and Kennedy. In the draft card case (United States v. O'Brien, 391 U.S. 367 (1968)), the Court ruled that the non-speech component of "symbolic speech" or "expressive conduct" can at times be regulated, even if that regulation simultaneously imposes some incidental burden on the speech component of the conduct. There is a four-prong test that is used to determine if the regulation is justified. Among the conditions that a regulation of this type must meet to not fall afoul of the First Amendment is that the regulation must further a substantial government interest, where the interest is unrelated to the suppression of free expression, and the incidental burden on speech must be as small as possibly can be achieved when trying to advance that substantial government interest. The Barnes court determined that "protecting societal order and morality" was substantial government interest enough, even though there was no direct evidence that protecting order and morality was the goal behind the Indiana statute. Further, the court claimed, this "interest is unrelated to the suppression of free expression." The "expression" that is part of nude dancing is eroticism, presumably, and eroticism, even erotic dancing, was still permitted by the statute -- it was only completely nude erotic dancing, along with all other forms of public nudity, that was suppressed. As for whether the burden on speech is the unavoidable minimum needed to promote morality -- well, the Rehnquist opinion summarily (and knowingly punnily?) disposed of that issue: "...Indiana's requirement that the dancers wear at least pasties and G-strings is modest, and the bare minimum necessary to achieve the state's purpose." Therefore, the Court held that Indiana's statute forbidding public nudity, even in adult entertainment establishments, was not in violation of the First Amendment.

Justice Souter wrote a separate concurring opinion. Rather than rely on the state's substantial interest in promoting order and morality, Justice Souter relied on "...the State's substantial interest in combating the secondary effects of adult entertainment establishments..." The secondary effects that Souter identified, which were noted by Indiana's lawyers, were prostitution, sexual assault, and other criminal activities. (As the dissent recognized, if these harms are the source of concern, then it would seem that there are ways of dealing with them that do not require the suppression of the expressive conduct of nude dancing.) The Souter opinion has been influential in later cases.

The four dissenters did not believe that the prohibition was unrelated to the expressive conduct, as required by the four-prong test. "Since the State permits the dancers to perform if they wear pasties and G-strings, but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition." If you think that nude dancing conveys a message that differs significantly from non-nude dancing, then it could not be prohibited even in a content-neutral way, as such regulations must still leave open ample channels of communication.

I foresee more nude dancing in Vice Squad's future....

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