NUDE DANCING

Is a sexually titillating dance performed in a bar or in a booth at an "adult" bookstore by a totally nude woman speech protected by the first amendment ? Or is it conduct that can be banned by state or local regulation? For decades the Supreme Court avoided deciding this question. For instance, in schad v. village of mt. ephraim (1981) the Court invoked the overbreadth doctrine to invalidate a citywide ban on all live entertainment, including nude dancing in a booth in an adult bookstore. Earlier and more dubiously, the Court in California v. La Rue (1972) invoked the state's power under the twenty-first amendment to regulate alcohol as a basis for upholding a ban on nude dancing in places where liquor was served—a rationale subsequently disavowed in 44 Liquormart v. Rhode Island (1996). It was not until 1991, in Barnes v. Glen Theatre, Inc., that the Court finally reached the merits of the freedom of speech issues raised by the prohibition of nude dancing. The Court held that although totally nude dancing was expressive conduct entitled to some First Amendment protection, it could nonetheless be banned. The Court in Barnes was sharply divided, both as to result and rationale. Five justices (Chief Justice william h. rehnquist, and Justices sandra day o'connor, anthony m. kennedy, antonin salia, and david h. souter) held that Indiana could constitutionally apply its general ban on public nudity to forbid totally nude dancing in bars and adult bookstores. Four Justices (byron r. white, thurgood marshall, harry a. blackmun, and john paul stevens) found that applying the ban on public nudity to nude dancing violated the First Amendment.

Although four opinions were issued in Barnes, no opinion spoke for a majority. Writing for a plurality consisting of himself, Kennedy, and O'Connor, Rehnquist grudgingly acknowledged that nude dancing was expressive conduct "within the outer perimeters of the First Amendment [although] only marginally so." As such it was entitled to the protection provided by the four-part test of united states v. o ' brien (1968). Under O'Brien, regulation of expressive conduct will be upheld if "it is within the constitutional power of 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." Applying O'Brien, the plurality opinion found Indiana's ban on public nudity constitutional "despite its incidental limitations on some expressive activity." The prohibition reflected "moral disapproval of people appearing nude among strangers in public places." The plurality found that the ban on public nudity was thus "clearly within the constitutional power of the state" and that it "furthers a substantial government interest in protecting order and morality." The plurality also concluded that this interest was "unrelated to the suppression of free expression." Rehnquist's opinion rejected the argument that the reason Indiana applied its ban on public nudity to nude dancing was to prevent its erotic message, emphasizing that the state equally prevents public nudity with little, if any, erotic message, such as nude sunbathing on public beaches. "Public nudity is the evil the State seeks to prevent," explained the Chief Justice, "whether or not it is combined with expressive activity." Finally, the plurality concluded that "the incidental restriction on First Amendment freedom [was] no greater than is essential to the furtherance of the governmental interest." The prohibition on public nudity, the plurality explained, "is not a means to some greater end, but an end in itself." Additionally, the restriction was in the plurality's view "narrowly tailored," since Indiana required only that the dancers wear "pasties and G-strings," the "bare minimum" (so to speak) "necessary to achieve the State's purpose."

The most controversial part of the plurality's analysis is the holding that the state's interest in promoting morality qualifies as a "substantial or important" justification for banning expressive activity protected by the First Amendment. In support of this holding the plurality relies on two cases, Paris Adult Theater I v. Slaton (1973) and bowers v. hardwick (1986). In both cases the Court held that the state may legitimately enact morals legislation. However, these cases found only that the state's interest in morality supplied a "legitimate" or a rational basis for legislation; neither suggested that this interest was sufficiently weighty to justify the prohibition of a constitutionally protected activity. Thus in Bowers it was only after finding that the due process clause of the fourteenth amendment did not confer a fundamental right to engage in homosexual sodomy that the Court held that the state's interest in morality provided a rational basis for banning such conduct. Similarly, Slaton held only that the state had a "legitimate" interest in promoting morality, and therefore might invoke this interest to ban obscenity, material long held to be without First Amendment protection.

Concurring in the judgment in Barnes, Scalia took a very different approach. Because Indiana's ban on public nudity was a general law regulating conduct and not specifically directed at expression, Scalia would have found the regulation "not subject to First Amendment scrutiny at all." In his view, where there is no constitutional protection of the activity at issue, the state's interest in promoting morality provides a constitutionally sufficient justification for banning the activity. Scalia thus would abandon the "intermediate" level of First Amendment protection extended to expressive conduct by the four-part O'Brien test. Such a development would not, he insisted, mean that expressive conduct would be bereft of all First Amendment protection. "Where the government prohibits conduct precisely because of its communicative attributes," Scalia explained, the regulation is unconstitutional. If, on the other hand, the government can adduce some speech-neutral justification for the regulation, such as promoting morality in the case of nude dancing, "that is the end of the matter so far as First Amendment guarantees are concerned." In essence, Scalia would adopt the third part of the O'Brien test as the sole criterion for measuring the First Amendment validity of state regulation of expressive conduct. Such limited scrutiny of laws of general applicability despite their impact on fundamental rights would mirror the Court's controversial approach to the First Amendment right of religious liberty under the free exercise clause developed in Scalia's opinion for the Court in employment division, department of human resources of oregon v. smith (1990).

Souter also concurred in the judgment upholding Indiana's ban on public nudity as applied to nude dancing in bars and adult bookstores. He agreed with the plurality that nude dancing is entitled to "a degree of First Amendment protection" and that the appropriate level of protection is provided by the four-part O'Brien analysis. Unlike the plurality and Scalia, however, Souter did not invoke the state's interest in morality. Rather, he relied exclusively on the state's interest in combating the pernicious "secondary effects" said to be caused by this type of nude dancing, including prostitution and sexual assaults. In renton (city of) v. playtime theatres, inc. (1986), the Court found that a city's interest in avoiding similar "secondary effects" provided a legitimate, speech-neutral justification for imposing onerous zoning requirements on movie theaters showing sexually oriented films. In concluding that this "secondary effects" rationale supported a total ban on activity protected by the First Amendment, however, Souter significantly increased the speech restrictive impact of this rationale.

The four dissenting Justices, in an opinion by White, agreed with the plurality and Souter that the nude dancing at issue was expressive conduct protected by the First Amendment. The dissenting opinion, however, took issue with the plurality's basic premise, shared by Scalia, that Indiana's regulation was a general prohibition of conduct. White pointed out that the ban on nudity did not apply in the home. This observation seems wide of the mark. As Scalia notes, the rationale for the ban was not that nudity was immoral but that public nudity was immoral. The dissent offered a stronger argument that the nudity ban was not truly general, claiming that the ban did not apply to nudity in theatrical productions such as "Hair" or to nudity in ballets or operas such as "Salome." The dissent also disagreed with the conclusion that the purpose of the ban was unrelated to the expressive aspect of nude dancing. In the dissent's view it was the "emotions and feelings of eroticism and sensuality" generated by nude dancing that the state sought to regulate, "apparently on the assumption that creating or emphasizing such thoughts and ideas in the minds of spectators may lead to increased prostitution and degradation of women." Consequently, the dissent found Indiana's ban on nude dancing to be an unconstitutional content-based regulation of protected expression.

To the extent that Barnes allows the state to ban totally nude dancing in bars and adult book stores, it represents a relatively constrained view of the scope of free speech protection. There are, nonetheless, several speech-protective aspects to this decision. Eight members of the Court found that nude dancing was "expressive conduct" entitled to some degree of First Amendment protection. A clear majority of the Court appeared to reject the plurality's view that the state's interest in promoting morality was sufficient justification for even incidental bans on constitutionally protected expression. Finally, Barnes strongly suggests that the state may not constitutionally ban nudity in theatrical productions. Souter, whose vote was necessary to uphold the ban, noted that it would be difficult to see how nudity in productions such as "Hair" and "Equus" could possibly cause harmful "secondary effects." On the other hand, this result can also be read as unjustifiably discriminating between "high brow" entertainment that appeals to the Justices and the "low brow" entertainment of the masses.

James Weinstein
(2000)

Bibliography

Blasi, Vincent 1992 Six Conservatives in Search of the First Amendment: The Revealing Case of Nude Dancing. William and Mary Law Review 33:611–663.