Barnes v. Glen Theatre, Inc.
The Supreme Court upheld Indiana's public indecency law as applied to two South Bend adult-entertainment clubs, ruling that requiring dancers to wear minimal clothing does not violate the First Amendment even though nude dancing has some expressive value.
The fractured ruling means states can enforce general public-nudity laws against strip clubs and similar venues without meeting the toughest free-speech tests, so long as the law targets nudity broadly rather than the erotic message itself.
“We cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea.”
Explaining why not all conduct claiming an expressive purpose is protected by the First Amendment.
How it got here: A federal trial court and en banc Seventh Circuit sided with the dancers, ruling the law unconstitutional as applied; Indiana asked the Supreme Court to review that decision.
The Case in Depth
What happened
Two South Bend, Indiana establishments—the Kitty Kat Lounge, a bar with go-go dancing, and Glen Theatre, an adult bookstore with peep-show booths—wanted to offer totally nude dancing. Indiana's public indecency law required dancers to wear pasties and G-strings. The clubs and individual dancers, including Darlene Miller and Gayle Ann Marie Sutro, sued, arguing the requirement violated their First Amendment right to expressive dance performance for paying, consenting adult audiences.
The question before the Court
Could Indiana require nude dancers at adult entertainment clubs to wear pasties and G-strings without violating their free-speech rights?
The Court's answer
No — the Court ruled that Indiana's requirement that dancers wear pasties and G-strings does not violate the First Amendment, even though nude dancing has some expressive content. A plurality applied the four-part test from United States v. O'Brien and found the law served the state's legitimate interest in protecting public order and morality, an interest unconnected to suppressing any erotic message, and restricted expression no more than necessary since dancers could still convey their erotic message while minimally clothed.
Two other justices supplied the fifth and final votes needed for this outcome using different reasoning: Justice Scalia argued the First Amendment doesn't apply at all to general conduct laws like this one, while Justice Souter relied on the state's interest in curbing secondary effects such as prostitution near adult entertainment venues. Four dissenting justices would have struck down the law as applied to these clubs.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Adult entertainment businesses nationwide can be required to keep dancers minimally clothed under general nudity laws, even where customers are consenting adults who paid to see nude performances. States gained a workable path to regulate such venues without having to prove the toughest constitutional justification, while dancers and club owners have less room to challenge minimal-clothing requirements as targeted censorship of erotic expression.
What changes now
This is a final merits decision, so the Seventh Circuit's ruling in favor of the dancers is reversed and Indiana's public indecency law remains enforceable against the clubs. Because no single rationale commanded five votes, lower courts applying Barnes have had to reconcile the plurality's morality-based O'Brien analysis, Scalia's view that the First Amendment doesn't apply at all, and Souter's secondary-effects theory when evaluating similar nudity ordinances.
What this does not decide
The Court did not decide whether Indiana could ban nudity in theatrical productions like plays, ballets, or operas, noting the state had never enforced the law that way. It also did not resolve which single rationale governs future cases, since the plurality, Scalia, and Souter relied on three different legal theories to reach the same result.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia agreed the law should be upheld but rejected the plurality's use of the O'Brien balancing test entirely. He argued that because Indiana's statute is a general law regulating conduct (public nudity) rather than one targeting expression, it doesn't trigger First Amendment scrutiny at all, regardless of any incidental effect on expressive dancing.
Concurrence — Justice Souter
Justice Souter agreed the O'Brien test applied but grounded his vote on a different governmental interest: preventing the secondary effects of adult entertainment, such as prostitution and sexual assault, rather than on generalized morality. He argued this secondary-effects rationale, drawn from zoning cases like Renton, independently satisfied all four O'Brien factors.
Dissent — Justice White
“The nudity is itself an expressive component of the dance, not merely incidental "conduct."”The dissent's central objection that nudity cannot be separated from the dance's protected expressive content.
Justice White, joined by three others, argued the statute as applied to nude dancing was not a truly general prohibition since Indiana never enforced it against nudity in theatrical productions, meaning the state had to justify why it singled out barroom and theater nude dancing. He concluded the real purpose was suppressing the erotic message itself, which fails O'Brien's requirement that the interest be unrelated to expression, and would have affirmed the Seventh Circuit's ruling striking down the law as applied.
How the Court got there
The legal reasoning, step by step
- The plurality first asked whether nude dancing counts as expressive conduct under the First Amendment at all, and concluded that it falls within the 'outer perimeters' of protected expression, though only marginally so, based on prior cases treating barroom nude dancing as having some communicative content.
- Because the conduct had some expressive element, the Court applied the four-part test from United States v. O'Brien, developed for laws that regulate conduct with an incidental effect on speech: the law must be within the government's power, further an important government interest, be unrelated to suppressing expression, and restrict speech no more than necessary.
- The plurality found the statute served the government's traditional interest in protecting 'societal order and morality,' a purpose it inferred from the law's text and its long history as a general anti-nudity measure predating nude barroom dancing.
- The plurality concluded this morality interest was unrelated to suppressing any erotic message, because Indiana bans public nudity everywhere, not just when it is erotic, and the pasties-and-G-string requirement only dims the erotic message rather than eliminating it.
- Applying the fourth O'Brien factor, the plurality held the minimal-clothing requirement was no broader than necessary, since it left dancers free to perform the same erotic dance while covering only certain body parts.
- Justice Scalia, providing a needed vote for the result, reasoned separately that because the law was a general conduct regulation not aimed at expression, First Amendment scrutiny should not apply at all, while Justice Souter supplied a fifth vote based on the state's interest in curbing secondary effects like prostitution near adult entertainment venues.