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Vanderbilt Law Review

First Page

237

Abstract

Erotic dancers Gayle Sutro, Carla Johnson, and Darlene Miller can no longer dance nude in Indiana. In Barnes v. Glen Theatre, Inc. the United States Supreme Court held that Indiana's prohibition of nude dancing did not violate the First Amendment to the United States Constitution. The Court's holding ended years of controversy and debate over Indiana's public indecency statute.

In 1979, in State v. Baysinger, the Indiana Supreme Court held that Indiana's public indecency statute could be used to prohibit nude dancing. The court stated that the statute could not prohibit some larger forms of expression involving the communication of ideas. The court concluded, however, that nude dancing was mere conduct without ,the expression of ideas. Since Baysinger the Indiana Court of Appeals has struggled with the constitutional issues surrounding nude dancing. In 1990 the United States Court of Appeals for the Seventh Circuit considered the application of the Indiana public indecency statute to nude dancing in Miller v. Civil City of South Bend.' The Miller decision contained six separate opinions, revealing a court sharply divided on the basis of legal analysis as well as personal opinions and cultural views. The majority held that non-obscene nude dancing, performed as entertainment, is expression entitled to limited First Amendment protection.' The majority suggested that the Indiana legislature could regulate nude dancing for reasons unrelated to the suppression of free expression." The court, however, found that the public indecency statute's total ban on this protected activity was unconstitutional."

The United States Supreme Court, in Barnes v. Glen Theatre, Inc.," reversed the Seventh Circuit. Chief Justice Rehnquist wrote the plurality opinion, joined by Justices O'Connor and Kennedy. Chief Justice Rehnquist conceded that nude dancing is expressive conduct that falls within the outer perimeters of the First Amendment.' Nonetheless, he determined that the Indiana statute's prohibition of nude dancing was clearly within the State's constitutional power.' In reaching this decision, Chief Justice Rehnquist applied the four-part test announced in United States v. O'Brien and concluded that Indiana's substantial governmental interest in promoting morality and protecting societal order justified the application of the statute to this expressive activity. He reasoned that the public indecency statute was unrelated to the suppression of free expression and only incidentally infringed upon the protected activity at issue.'

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