Sunday, March 25, 2012

Barnes vs. Glen Theatre (June 21, 1991)

Facts: Indiana statute: It is a misdemeanor to appear in a state of nudity in a public place and female dancers are required to wear at least “pasties” and a “G-string” when they dance. 2 establishments (Kitty Kat Lounge and Glen Theatre) wish to provide totally nude dancing as entertainment and brought an action to court that the statute impinges on the freedom of expression under the First Amendment. 

Court of Appeals held that non-obscene nude dancing performed for entertainment is an expression protected by the First Amendment and that the statute was an improper infringement because its purpose was to prevent the message of eroticism and sexuality. 

Issue: The Indiana public indecency law violates free expression as guaranteed in the First Amendment. 

Held: The statute does not violate the First Amendment. Judgment of the Court of Appeals is reversed. 

Test whether government regulation is sufficiently justified: 

(1) Government regulation is within the government’s constitutional power 

(2) Regulation furthers an important governmental interest 

(3) Governmental interest is unrelated to the suppression of free expression 

(4) Incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest 

Nude dancing as entertainment is expressive conduct within the outer perimeters of the First Amendment but application of the Indiana statute is justified. (1) It is within the state’s constitutional powers. (2) Although it’s impossible to discern exactly what the governmental interests are in this case, the statute’s purpose of protecting societal order and morality can be traced from its text and history and illustrates that the Indiana statue furthers a substantial government interest. (3) It may be contended that prohibiting nudity does not suppress expression, but prohibiting nude dancing does. The statute does not prohibit nude dancing because of the message of eroticism it conveys but it seeks to address the evil of public nudity. (4) There is a fit with the requirement that dancers wear a least “pasties” and a “G-string.” This is the bare minimum necessary to achieve the state’s purpose. 

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1 comments: on "Barnes vs. Glen Theatre (June 21, 1991)"

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