Barnes v. Glen Theater Inc., 501 U.S. 560
(1991)
Is expressive conduct speech?
Background
Glen Theater, Inc. of South Bend, Indiana.
adult entertainment - books, movies, live shows
Kitty Kat Lounge, Inc. of South Bend, Indiana.
alcoholic beverages & go-go dancing
Both wished to provide totally nude
dancing.
Indiana Code 35-451 (1988)
• Public Indecency; indecent exposure
– “A person who knowingly or intentionally, in a
public place
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engages in sexual intercourse;
engages in deviate sexual conduct;
appears in a state of nudity; or
fondles the genitals of himself or another person;
commits public indecency, a Class A misdemeanor.”
– “‘Nudity’ means the showing of the human male
or female genitals, pubic area, or buttocks with
less than a fully opaque covering, the showing
of the female breast with less than a fully
opaque covering of any part of the nipple, or the
showing of the covered male genitals in a
Claim
• The First Amendment guarantees the freedom
of expression and should prevent Indiana from
enforcing their public indecency law on the
dancing.
Court
• U.S. District Court for Northern District of
Indiana
– sue to prohibit the enforcement of the indecency
statute
– granted injunction statute facially overbroad
• Court of Appeals for the Seventh Circuit
– reversed decision; impossible to have such a
challenge
– remanded to District Court, to try the violation of
First Amendment rights with respect to the dancing
• U.S. District Court for Northern District of
Indiana
– concluded type of dancing was not protected by the
Court Continued
• Court of Appeals for the Seventh Circuit
– reversed; dancing was “expressive conduct”
protected by First Amendment
– court heard by all judges of the seventh circuit
U.S. Supreme Court
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Reviewed previous cases
Valid time, place, or manner restriction ?
U.S. v. O’Brien 391 U.S. 367 (1968)
O’Brian test
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within the constitutional power
in government interest to protect order and morality
similar laws dating back to 1831
statue only required a slight amount of clothing
U.S. Supreme Court
• Findings
– Indiana’s public indecency law is not a violation of
their First Amendment rights to expression.
• ban on public nudity not dancing
– Nude dancing is expressive conduct, however only
slightly protected by the Constitution.