Barnes v' Glen Theater Inc', 501 U'S' 560 1991

1
Barnes v. Glen Theater Inc., 501 U.S. 560 (1991)

• Is expressive conduct speech?

2
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.
3
Indiana Code 35-451 (1988)

• Public Indecency indecent exposure
• A person who knowingly or intentionally, in a
  public place
• 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
  discernibly turgid state.

4
Claim

• The First Amendment guarantees the freedom of
  expression and should prevent Indiana from
  enforcing their public indecency law on the
  dancing.

5
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 constitution
• judgement in favor of the city

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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

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U.S. Supreme Court

• Reviewed previous cases
• Valid time, place, or manner restriction ?
• U.S. v. OBrien 391 U.S. 367 (1968)
• OBrian test
• 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

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U.S. Supreme Court

• Findings
• Indianas 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.