## Facts

- Indiana enforced a public indecency statute making public nudity a misdemeanor and defining nudity so that female performers had to wear at least pasties and a G-string.
- Two adult entertainment businesses and their nude dancers sought to present totally nude dancing and sued to enjoin enforcement, alleging a First Amendment violation.
- The district court held the dancing was not expressive conduct protected by the First Amendment and denied relief.
- The Seventh Circuit reversed, holding nonobscene nude dancing is protected expression and concluding the statute improperly burdened the erotic message.
- The Supreme Court granted review and reversed the Seventh Circuit in a fractured 5–4 decision, upholding the statute as applied to erotic dancing.

## Issues

1. Whether nonobscene nude dancing is expressive conduct covered by the First Amendment.
2. Whether a general prohibition on public nudity, applied to erotic dancing in adult entertainment venues, violates the First Amendment.
3. Whether Indiana’s interest in regulating public nudity is unrelated to suppressing expression and justifies the incidental burden on expressive conduct.

## Decision

- The Court upheld Indiana’s public indecency statute as applied to erotic dancing and reversed the court of appeals.
- A plurality concluded nude dancing falls within the outer boundaries of First Amendment protection but only marginally.
- Applying the *O’Brien* test for expressive conduct, the plurality found the statute within the State’s power, supported by a substantial interest in protecting societal order and morality, and unrelated to suppressing the erotic message.
- The plurality further concluded the minimal clothing requirement left the dance’s communicative content largely intact and imposed only an incidental, limited restriction.
- Justice Scalia concurred in the judgment on the ground that a general public-nudity law regulating conduct need not be evaluated as expressive-conduct regulation.
- Justice Souter concurred in the judgment, accepting some expressive element but emphasizing the State’s interest in preventing harmful secondary effects associated with such establishments.
- The dissent would have invalidated the statute as applied, reasoning it burdened protected expression and functioned as suppression of the erotic message.

## Legal Principles

- Nonobscene nude dancing may qualify as expressive conduct within the First Amendment, but it can receive reduced protection compared to core speech.
- A content-neutral regulation that incidentally burdens expressive conduct may be sustained under *United States v. O’Brien* if it is within governmental power, furthers an important or substantial interest, is unrelated to suppressing expression, and is no broader than necessary to further that interest.
- A State may regulate public nudity through generally applicable indecency laws, including by requiring minimal clothing for erotic dancers, when the regulatory aim targets public nudity rather than the communicative message.
- Governmental interests cited to support such regulations may include protection of public order and morality, and, in separate reasoning, prevention of secondary effects tied to adult entertainment venues.

## Conclusion

The Court held that Indiana could enforce its public indecency law to require erotic dancers to wear pasties and a G-string, treating the restriction as a permissible, content-neutral regulation that only incidentally burdened marginally protected expressive conduct.


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