Introduction

BARNES, PROSECUTING ATTORNEY OF ST. JOSEPH COUNTY, INDIANA, ET AL. v. GLEN THEATRE, INC., ET AL. (501 U.S. 560) is a landmark Supreme Court decision rendered on June 21, 1991. The case addresses the contentious intersection of First Amendment rights and state public indecency laws. Respondents, including Glen Theatre, Inc., challenged Indiana's public indecency statute, which mandates that dancers wear pasties and a G-string, arguing that it infringes upon their freedom of expression. The Supreme Court ultimately reversed the lower courts' decisions, upholding the statute and reaffirming the state's authority to regulate public nudity.

Summary of the Judgment

The Supreme Court held that Indiana's public indecency law, which prohibits total nudity in public establishments like Glen Theatre and Kitty Kat Lounge, does not violate the First Amendment's guarantee of freedom of expression. The Court reversed the judgment of the United States Court of Appeals for the Seventh Circuit, which had previously ruled in favor of the respondents by determining that nonobscene nude dancing performed for entertainment is protected expressive conduct. The majority opinion, delivered by Chief Justice Rehnquist, applied the four-part test from UNITED STATES v. O'BRIEN to ascertain the constitutionality of the statute. Justices Scalia and Souter concurred, each providing nuanced support for the majority's decision, while Justice White, joined by Justices Marshall, Blackmun, and Stevens, dissented, arguing that the statute improperly targeted expressive conduct.

Analysis

Precedents Cited

The Supreme Court extensively referenced several key precedents to support its decision:

• UNITED STATES v. O'BRIEN (1968): Established a four-part test to evaluate the constitutionality of regulations affecting symbolic speech.
• DORAN v. SALEM INN, INC. (1975): Recognized that certain forms of nude dancing might warrant First Amendment protection.
• Schad v. Borough of Mount Ephraim (1981): Acknowledged that nude dancing entails some level of First Amendment protection against official regulation.
• PARIS ADULT THEATRE I v. SLATON (1973): Upheld state interests in regulating adult entertainment venues to protect public morals.
• RENTON v. PLAYTIME THEATRES, INC. (1986): Validated the use of zoning ordinances to prevent secondary effects associated with adult entertainment establishments.

These cases collectively underscore the Court's stance that while certain expressive activities like nude dancing can be protected, they are not immune to regulation when balanced against substantial governmental interests.

Legal Reasoning

The Court applied the O'Brien test, which requires:

• Whether the regulation is within the constitutional power of the Government.
• Whether it furthers an important or substantial governmental interest.
• Whether the interest is unrelated to the suppression of free expression.
• Whether the incidental restriction on First Amendment freedoms is no greater than essential to further the governmental interest.

The majority concluded that Indiana's statute:

• Falls within the state's constitutional authority to regulate public morals and societal order.
• Advances a substantial interest in preventing public nudity, which the state has historically criminalized.
• Addresses public indecency as an issue separate from the expressive content of performances.
• Requires minimal restrictions (pasties and G-strings) that do not excessively burden expressive conduct.

Justices Scalia and Souter concurred, with Scalia emphasizing that the statute is a general regulation of conduct, not specifically targeting expression, and thus should not be subject to heightened First Amendment scrutiny. Souter focused on the state's substantial interest in combating the secondary effects of adult entertainment establishments, such as prostitution and sexual assaults.

Impact

This judgment reinforces the authority of states to enact and enforce public indecency laws without necessarily infringing upon First Amendment protections, provided that such laws pass the O'Brien test. It delineates the boundary between protected expressive conduct and state-regulated public morals, allowing for the regulation of activities like nude dancing in public establishments. Future cases involving expressive conduct will likely reference this decision to balance free expression against societal interests.

Complex Concepts Simplified

Four-Part O'Brien Test

The O'Brien test determines whether a law that affects expressive conduct violates the First Amendment. The test checks:

1. The law is within the government's constitutional power.
2. The law serves an important or substantial government interest.
3. The interest is not related to suppressing free expression.
4. The law's restrictions are no more extensive than necessary to achieve the interest.

Expressive Conduct

This refers to actions that convey a particular message or idea and are intended to be understood by others. Nude dancing, in this context, may express themes of eroticism and sexuality, thus engaging First Amendment considerations.

Secondary Effects

These are indirect consequences of certain activities, such as increased crime or prostitution associated with adult entertainment venues. The state's interest in mitigating these effects can justify regulatory measures.

Conclusion

BARNES v. GLEN THEATRE serves as a pivotal affirmation of states' rights to regulate public indecency, even when such regulations impact expressive conduct. By applying the O'Brien test, the Supreme Court delineated clear criteria under which expressive activities like nude dancing can be lawfully restricted. This decision underscores the delicate balance between safeguarding public morals and respecting constitutional freedoms, providing a framework for evaluating similar cases in the future. The ruling signifies a reaffirmation of traditional standards governing public decency, reinforcing that freedom of expression, while fundamental, is not absolute and can be subject to reasonable state regulations aimed at promoting societal order.