U.S. Supreme Court Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991) Barnes v. Glen Theatre,
Inc. No. 90-26 Argued Jan. 8, 1991 Decided June 21, 1991 501
U.S. 560 CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE SEVENTH
CIRCUIT Syllabus Respondents, two Indiana establishments wishing to provide
totally nude dancing as entertainment and individual dancers
employed at those establishments, brought suit in the District
Court to enjoin enforcement of the state public indecency law --
which requires respondent dancers to wear pasties and a G-string --
asserting that the law's prohibition against total nudity in public
places violates the First Amendment. The court held that the nude
dancing involved here was not expressive conduct. The Court of
Appeals reversed, ruling that nonobscene nude dancing performed for
entertainment is protected expression, and that the statute was an
improper infringement of that activity because its purpose was to
prevent the message of eroticism and sexuality conveyed by the
dancers. Held: The judgment is reversed.

															904 F.2d 1081 (CA9 1990), reversed.

															The CHIEF JUSTICE, joined by JUSTICE O'CONNOR and JUSTICE
KENNEDY, concluded that the enforcement of Indiana's public
indecency law to prevent totally nude dancing does not violate the
First Amendment's guarantee of freedom of expression. Pp. 501 U. S.
565 -572.

															(a) Nude dancing of the kind sought to be performed here is
expressive conduct within the outer perimeters of the First
Amendment, although only marginally so. See, e.g., Doran v.
Salem Inn, Inc., 422 U. S. 922 , 422 U. S. 932 .
Pp. 501 U. S.
565 -566.

															(b) Applying the four-part test of United States v.
O'Brien, 391 U. S. 367 , 391 U. S.
376 -377 -- which rejected the contention that symbolic
speech is entitled to full First Amendment protection -- the
statute is justified despite its incidental limitations on some
expressive activity. The law is clearly within the State's
constitutional power. And it furthers a substantial governmental
interest in protecting societal order and morality. Public
indecency statutes reflect moral disapproval of people appearing in
the nude among strangers in public places, and this particular law
follows a line of state laws, dating back to 1831, banning public
nudity. The States' traditional police power is defined as the
authority to provide for the public health, safety, and morals, and
such a basis for legislation Page 501 U. S. 561 has been upheld. See, e.g., Paris Adult Theatre I v.
Slaton, 413 U. S. 49 , 413 U. S. 61 .
This governmental interest is unrelated to the suppression of free
expression, since public nudity is the evil the State seeks to
prevent, whether or not it is combined with expressive activity.
The law does not proscribe nudity in these establishments because
the dancers are conveying an erotic message. To the contrary, an
erotic performance may be presented without any state interference,
so long as the performers wear a scant amount of clothing. Finally,
the incidental restriction on First Amendment freedom is no greater
than is essential to the furtherance of the governmental interest.
Since the statutory prohibition is not a means to some greater end,
but an end itself, it is without cavil that the statute is narrowly
tailored. Pp. 501 U. S.
566 -572.

															JUSTICE SCALIA concluded that the statute -- as a general law
regulating conduct and not specifically directed at expression,
either in practice or on its face -- is not subject to normal First
Amendment scrutiny, and should be upheld on the ground that moral
opposition to nudity supplies a rational basis for its prohibition. Cf. Employment Division, Oregon Dept. of Human Resources v.
Smith, 494 U. S. 872 .
There is no intermediate level of scrutiny requiring that an
incidental restriction on expression, such as that involved here,
be justified by an important or substantial governmental interest.
Pp. 501 U. S.
572 -580.

															JUSTICE SOUTER, agreeing that the nude dancing at issue here is
subject to a degree of First Amendment protection, and that the
test of United States v. O'Brien, 391 U.
S. 367 , is the appropriate analysis to determine the
actual protection required, concluded that the State's interest in
preventing the secondary effects of adult entertainment
establishments -- prostitution, sexual assaults, and other criminal
activity -- is sufficient under O'Brien to justify the
law's enforcement against nude dancing. The prevention of such
effects clearly falls within the State's constitutional power. In
addition, the asserted interest is plainly substantial, and the
State could have concluded that it is furthered by a prohibition on
nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Inc., 475 U. S.
41 , 475 U. S. 50 .
Moreover, the interest is unrelated to the suppression of free
expression, since the pernicious effects are merely associated with
nude dancing establishments and are not the result of the
expression inherent in nude dancing. Id. at 475 U. S. 48 .
Finally, the restriction is no greater than is essential to further
the governmental interest, since pasties and a G-string moderate
expression to a minor degree when measured against the dancer's
remaining capacity and opportunity to express an erotic message.
Pp. 501 U. S.
581 -587. Page 501 U. S. 562 REHNQUIST, C.J., announced the judgment of the Court and
delivered an opinion in which O'CONNOR and KENNEDY, JJ., joined.
SCALIA, J., post, p. 501 U. S. 572 ,
and SOUTER, J., post, p. 501 U. S. 581 ,
filed opinions concurring in the judgment. WHITE, J., filed a
dissenting opinion, in which MARSHALL, BLACKMUN, and STEVENS, JJ.,
joined, post, p. 501 U. S.
587 .

															CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.

															Respondents are two establishments in South Bend, Indiana, that
wish to provide totally nude dancing as entertainment, and
individual dancers who are employed at these Page 501 U. S. 563 establishments. They claim that the First Amendment's guarantee
of freedom of expression prevents the State of Indiana from
enforcing its public indecency law to prevent this form of dancing.
We reject their claim.

															The facts appear from the pleadings and findings of the District
Court, and are uncontested here. The Kitty Kat Lounge, Inc. (Kitty
Kat) is located in the city of South Bend. It sells alcoholic
beverages and presents "go-go dancing." Its proprietor desires to
present "totally nude dancing," but an applicable Indiana statute
regulating public nudity requires that the dancers wear "pasties"
and a "G-string" when they dance. The dancers are not paid an
hourly wage, but work on commission. They receive a 100 percent
commission on the first $60 in drink sales during their
performances. Darlene Miller, one of the respondents in the action,
had worked at the Kitty Kat for about two years at the time this
action was brought. Miller wishes to dance nude because she
believes she would make more money doing so.

															Respondent Glen Theatre, Inc., is an Indiana corporation with a
place of business in South Bend. Its primary business is supplying
so-called adult entertainment through written and printed
materials, movie showings, and live entertainment at an enclosed
"bookstore." The live entertainment at the "bookstore" consists of
nude and seminude performances and showings of the female body
through glass panels. Customers sit in a booth and insert coins
into a timing mechanism that permits them to observe the live nude
and seminude dancers for a period of time. One of Glen Theatre's
dancers, Gayle Ann Marie Sutro, has danced, modeled, and acted
professionally for more than 15 years, and in addition to her
performances at the Glen Theatre, can be seen in a pornographic
movie at a nearby theater. App. to Pet. for Cert. 131-133.

															Respondents sued in the United States District Court for the
Northern District of Indiana to enjoin the enforcement of the
Indiana public indecency statute, Ind.Code § 35-45-4-1 Page 501 U. S. 564 (1988), asserting that its prohibition against complete nudity
in public places violated the First Amendment. The District Court
originally granted respondents' prayer for an injunction, finding
that the statute was facially overbroad. The Court of Appeals for
the Seventh Circuit reversed, deciding that previous litigation
with respect to the statute in the Supreme Court of Indiana and
this Court precluded the possibility of such a challenge, [ Footnote 1 ] and remanded to the
District Court in order for the plaintiffs to pursue their claim
that the statute violated the First Amendment as applied to their
dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d 287,
288-290 (1986). On remand, the District Court concluded that Page 501 U. S. 565 "the type of dancing these plaintiffs wish to perform is not
expressive activity protected by the Constitution of the United
States," and rendered judgment in favor of the defendants. Glen
Theatre, Inc. v. Civil City of South Bend, 695 F.
Supp. 414 , 419 (ND Ind.1988). The case was again appealed to
the Seventh Circuit, and a panel of that court reversed the
District Court, holding that the nude dancing involved here was
expressive conduct protected by the First Amendment. Miller v.
Civil City of South Bend, 887 F.2d 826 (CA7 1989). The Court
of Appeals then heard the case en banc, and the court rendered a
series of comprehensive and thoughtful opinions. The majority
concluded that nonobscene nude dancing performed for entertainment
is expression protected by the First Amendment, and that the public
indecency statute was an improper infringement of that expressive
activity because its purpose was to prevent the message of
eroticism and sexuality conveyed by the dancers. Miller v.
Civil City of South Bend, 904 F.2d 1081 (CA7 1990). We granted
certiorari, 498 U.S. 807 (1990), and now hold that the Indiana
statutory requirement that the dancers in the establishments
involved in this case must wear pasties and a G-string does not
violate the First Amendment.

															Several of our cases contain language suggesting that nude
dancing of the kind involved here is expressive conduct protected
by the First Amendment. In Doran v. Salem Inn, Inc., 422 U. S. 922 , 422 U. S. 932 (1975), we said:

															"[A]lthough the customary 'barroom' type of nude dancing may
involve only the barest minimum of protected expression, we
recognized in California v. LaRue, 409 U. S.
109 , 409 U. S. 118 (1972), that
this form of entertainment might be entitled to First and
Fourteenth Amendment protection under some circumstances."

															In Schad v. Borough of Mount Ephraim, 452 U. S.
61 , 452 U. S. 66 (1981), we said that "[f]urthermore, as the state courts in this
case recognized, nude dancing is not without its First Amendment
protections from official regulation" (citations omitted). These
statements support the conclusion of the Court of Appeals Page 501 U. S. 566 that nude dancing of the kind sought to be performed here is
expressive conduct within the outer perimeters of the First
Amendment, though we view it as only marginally so. This, of
course, does not end our inquiry. We must determine the level of
protection to be afforded to the expressive conduct at issue, and
must determine whether the Indiana statute is an impermissible
infringement of that protected activity.

															Indiana, of course, has not banned nude dancing as such, but has
proscribed public nudity across the board. The Supreme Court of
Indiana has construed the Indiana statute to preclude nudity in
what are essentially places of public accommodation such as the
Glen Theatre and the Kitty Kat Lounge. In such places, respondents
point out, minors are excluded and there are no nonconsenting
viewers. Respondents contend that, while the state may license
establishments such as the ones involved here and limit the
geographical area in which they do business, it may not in any way
limit the performance of the dances within them without violating
the First Amendment. The petitioner contends, on the other hand,
that Indiana's restriction on nude dancing is a valid "time, place
or manner" restriction under cases such as Clark v. Community
for Creative Non-Violence, 468 U. S. 288 (1984).

															The "time, place, or manner" test was developed for evaluating
restrictions on expression taking place on public property which
had been dedicated as a "public forum," Ward v. Rock Against
Racism, 491 U. S. 781 , 491 U. S. 791 (1989), although we have on at least one occasion applied it to
conduct occurring on private property. See Renton v. Playtime
Theatres, Inc., 475 U. S. 41 (1986). In Clark, we observed that this test has been
interpreted to embody much the same standards as those set forth in United States v. O'Brien, 391 U.
S. 367 (1968), and we turn, therefore, to the rule
enunciated in O'Brien. O'Brien burned his draft card on the steps of the South
Boston courthouse in the presence of a sizable crowd, and Page 501 U. S. 567 was convicted of violating a statute that prohibited the knowing
destruction or mutilation of such a card. He claimed that his
conviction was contrary to the First Amendment because his act was
"symbolic speech" -- expressive conduct. The court rejected his
contention that symbolic speech is entitled to full First Amendment
protection, saying:

															"[E]ven on the assumption that the alleged communicative element
in O'Brien's conduct is sufficient to bring into play the First
Amendment, it does not necessarily follow that the destruction of a
registration certificate is constitutionally protected activity.
This Court has held that, when 'speech' and 'nonspeech' elements
are combined in the same course of conduct, a sufficiently
important governmental interest in regulating the nonspeech element
can justify incidental limitations on First Amendment freedoms. To
characterize the quality of the governmental interest which must
appear, the Court has employed a variety of descriptive terms:
compelling; substantial; subordinating; paramount; cogent; strong.
Whatever imprecision inheres in these terms, we think it clear that
a government regulation is sufficiently justified if it is within
the constitutional power of the Government; if it furthers an
important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if
the incidental restriction on alleged First Amendment freedoms is
no greater than is essential to the furtherance of that
interest." Id. at 391 U. S.
376 -377 (footnotes omitted).

															Applying the four-part O'Brien test enunciated above,
we find that Indiana's public indecency statute is justified
despite its incidental limitations on some expressive activity. The
public indecency statute is clearly within the constitutional power
of the State, and furthers substantial governmental interests. It
is impossible to discern, other than from the text of the statute,
exactly what governmental interest the Indiana legislators had in
mind when they enacted Page 501 U. S. 568 this statute, for Indiana does not record legislative history,
and the state's highest court has not shed additional light on the
statute's purpose. Nonetheless, the statute's purpose of protecting
societal order and morality is clear from its text and history.
Public indecency statutes of this sort are of ancient origin, and
presently exist in at least 47 States. Public indecency, including
nudity, was a criminal offense at common law, and this Court
recognized the common law roots of the offense of "gross and open
indecency" in Winters v. New York, 333 U.
S. 507 , 333 U. S. 515 (1948). Public nudity was considered an act malum en se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng.Rep. 1036 (K.B.1664).
Public indecency statutes such as the one before us reflect moral
disapproval of people appearing in the nude among strangers in
public places.

															This public indecency statute follows a long line of earlier
Indiana statutes banning all public nudity. The history of
Indiana's public indecency statute shows that it predates barroom
nude dancing, and was enacted as a general prohibition. At least as
early as 1831, Indiana had a statute punishing "open and notorious
lewdness, or . . . any grossly scandalous and public indecency."
Rev.Laws of Ind., ch. 26, § 60 (1831); Ind.Rev.Stat., ch. 53, § 81
(1834). A gap during which no statute was in effect was filled by
the Indiana Supreme Court in Ardery v. State, 56 Ind. 328
(1877), which held that the court could sustain a conviction for
exhibition of "privates" in the presence of others. The court
traced the offense to the Bible story of Adam and Eve. Id. at 329-330. In 1881, a statute was enacted that would remain
essentially unchanged for nearly a century:

															"Whoever, being over fourteen years of age, makes an indecent
exposure of his person in a public place, or in any place where
there are other persons to be offended or annoyed thereby, . . . is
guilty of public indecency. . . ."

															1881 Ind.Acts, ch. 37, § 90. Page 501 U. S. 569 The language quoted above remained unchanged until it was
simultaneously repealed and replaced with the present statute in
1976. 1976 Ind.Acts, Pub.L. 148, Art. 45, ch. 4, § 1. [ Footnote 2 ]

															This and other public indecency statutes were designed to
protect morals and public order. The traditional police power of
the States is defined as the authority to provide for the public
health, safety, and morals, and we have upheld such a basis for
legislation. In Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 61 (1973), we said:

															"In deciding Roth [v. United States, 354 U. S.
476 (1957)], this Court implicitly accepted that a
legislature could legitimately act on such a conclusion to protect
'the social interest in order and morality.' [ Id. ] at 354 U. S. 485 ."

															(Emphasis omitted.) And in Bowers v. Hardwick, 478 U. S. 186 , 478 U. S. 196 (1986), we said:

															"The law, however, is constantly based on notions of morality,
and if all laws representing essentially moral choices are to be
invalidated under the Due Process Clause, the courts will be very
busy indeed."

															Thus, the public indecency statute furthers a substantial
government interest in protecting order and morality. Page 501 U. S. 570 This interest is unrelated to the suppression of free
expression. Some may view restricting nudity on moral grounds as
necessarily related to expression. We disagree. It can be argued,
of course, that almost limitless types of conduct -- including
appearing in the nude in public -- are "expressive," and in one
sense of the word this is true. People who go about in the nude in
public may be expressing something about themselves by so doing.
But the court rejected this expansive notion of "expressive
conduct" in O'Brien, saying:

															"We cannot accept the view that an apparently limitless variety
of conduct can be labelled 'speech' whenever the person engaging in
the conduct intends thereby to express an idea."

															391 U.S. at 391 U. S.
376 .

															And in Dallas v. Stanglin, 490 U. S.
19 , we further observed:

															"It is possible to find some kernel of expression in almost
every activity a person undertakes -- for example, walking down the
street or meeting one's friends at a shopping mall -- but such a
kernel is not sufficient to bring the activity within the
protection of the First Amendment. We think the activity of these
dance-hall patrons coming together to engage in recreational
dancing -- is not protected by the First Amendment." 490 U.S.
19 , 490 U. S.
25 .

															Respondents contend that, even though prohibiting nudity in
public generally may not be related to suppressing expression,
prohibiting the performance of nude dancing is related to
expression because the state seeks to prevent its erotic message.
Therefore, they reason that the application of the Indiana statute
to the nude dancing in this case violates the First Amendment,
because it fails the third part of the O'Brien test, viz:
the governmental interest must be unrelated to the suppression of
free expression.

															But we do not think that, when Indiana applies its statute to
the nude dancing in these nightclubs it is proscribing nudity
because of the erotic message conveyed by the dancers. Page 501 U. S. 571 Presumably numerous other erotic performances are presented at
these establishments and similar clubs without any interference
from the state, so long as the performers wear a scant amount of
clothing. Likewise, the requirement that the dancers don pasties
and a G-string does not deprive the dance of whatever erotic
message it conveys; it simply makes the message slightly less
graphic. The perceived evil that Indiana seeks to address is not
erotic dancing, but public nudity. The appearance of people of all
shapes, sizes and ages in the nude at a beach, for example, would
convey little if any erotic message, yet the state still seeks to
prevent it. Public nudity is the evil the state seeks to prevent,
whether or not it is combined with expressive activity.

															This conclusion is buttressed by a reference to the facts of O'Brien. An act of Congress provided that anyone who
knowingly destroyed a selective service registration certificate
committed an offense. O'Brien burned his certificate on the steps
of the South Boston Courthouse to influence others to adopt his
anti-war beliefs. This Court upheld his conviction, reasoning that
the continued availability of issued certificates served a
legitimate and substantial purpose in the administration of the
selective service system. O'Brien's deliberate destruction of his
certificate frustrated this purpose and "for this noncommunicative
aspect of his conduct, and for nothing else, he was convicted." 391
U.S. at 391 U. S. 382 .
It was assumed that O'Brien's act in burning the certificate had a
communicative element in it sufficient to bring into play the First
Amendment, 391 U.S. at 391 U. S. 382 ,
but it was for the noncommunicative element that he was prosecuted.
So here with the Indiana statute; while the dancing to which it was
applied had a communicative element, it was not the dancing that
was prohibited, but simply its being done in the nude.

															The fourth part of the O'Brien test requires that the
incidental restriction on First Amendment freedom be no greater
than is essential to the furtherance of the governmental interest.
As indicated in the discussion above, Page 501 U. S. 572 the governmental interest served by the text of the prohibition
is societal disapproval of nudity in public places and among
strangers. The statutory prohibition is not a means to some greater
end, but an end in itself. It is without cavil that the public
indecency statute is "narrowly tailored;" Indiana's requirement
that the dancers wear at least pasties and a G-string is modest,
and the bare minimum necessary to achieve the state's purpose.

															The judgment of the Court of Appeals accordingly is Reversed. [ Footnote 1 ]

															The Indiana Supreme Court appeared to give the public indecency
statute a limiting construction to save it from a facial
overbreadth attack:

															"There is no right to appear nude in public. Rather, it may be constitutionally required to tolerate or to allow
some nudity as a part of some larger form of expression meriting
protection, when the communication of ideas is involved." State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d
580 , 587 (1979) (emphasis added), appeals dism'd sub nom.
Clark v. Indiana, 446 U.S. 931, and Dove v. Indiana, 449 U.S. 806 (1980).

															Five years after Baysinger, however, the Indiana
Supreme Court reversed a decision of the Indiana Court of Appeals
holding that the statute did "not apply to activity such as the
theatrical appearances involved herein, which may not be prohibited
absent a finding of obscenity," in a case involving a partially
nude dance in the "Miss Erotica of Fort Wayne" contest. Erhardt
v. State, 468 N.E.2d
224 (Ind.1984). The Indiana Supreme Court did not discuss the
constitutional issues beyond a cursory comment that the statute had
been upheld against constitutional attack in Baysinger, and Erhardt's conduct fell within the statutory prohibition.
Justice Hunter dissented, arguing that

															"a public indecency statute which prohibits nudity in any public
place is unconstitutionally overbroad. My reasons for so concluding
have already been articulated in State v. Baysinger, (1979) 272 Ind. 236, 397 N.E.2d
580 (Hunter and DeBruler, JJ., dissenting)." Id. at 225-226, 397 N.E.2d
580 . Justice DeBruler expressed similar views in his dissent in
Erhardt. Ibid. Therefore, the Indiana Supreme Court did
not affirmatively limit the reach of the statute in Baysinger, but merely said that, to the extent the First
Amendment would require it, the statute might be unconstitutional
as applied to some activities.

															[ Footnote 2 ]

															Indiana Code § 35-451 (1988) provides:

															"Public Indecency"

															"Sec. 1. (a) A person who knowingly or intentionally, in a
public place:"

															"(1) engages in sexual intercourse;"

															"(2) engages in deviate sexual conduct;"

															"(3) appears in a state of nudity; or"

															"(4) fondles the genitals of himself or another person;"

															"commits public indecency, a Class A misdemeanor."

															"(b) '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."

															JUSTICE SCALIA, concurring in the judgment.

															I agree that the judgment of the Court of Appeals must be
reversed. In my view, however, the challenged regulation must be
upheld, not because it survives some lower level of First-Amendment
scrutiny, but because, as a general law regulating conduct and not
specifically directed at expression, it is not subject to
First-Amendment scrutiny at all. I Indiana's public indecency statute provides:

															"(a) A person who knowingly or intentionally, in a public
place:"

															"(1) engages in sexual intercourse;"

															"(2) engages in deviate sexual conduct;"

															"(3) appears in a state of nudity; or"

															"(4) fondles the genitals of himself or another person;"

															"commits public indecency, a Class A misdemeanor."

															"(b) '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
covered male genitals in a discernibly turgid state."

															Ind.Code § 35-45-4-1 (1988). On its face, this law is not
directed at expression in particular. As Judge Easterbrook put it
in his dissent below:

															"Indiana Page 501 U. S. 573 does not regulate dancing. It regulates public nudity. . . .
Almost the entire domain of Indiana's statute is unrelated to
expression, unless we view nude beaches and topless hot dog vendors
as speech." Miller v. Civil City of South Bend, 904 F.2d 1081, 1120
(CA7 1990) (Easterbrook, J., dissenting). The intent to convey a
"message of eroticism" (or any other message) is not a necessary
element of the statutory offense of public indecency; nor does one
commit that statutory offense by conveying the most explicit
"message of eroticism," so long as he does not commit any of the
four specified acts in the process. [ Footnote 2/1 ]

															Indiana's statute is in the line of a long tradition of laws
against public nudity, which have never been thought to run afoul
of traditional understanding of "the freedom of speech." Public
indecency -- including public nudity -- has long been an offense at
common law. See 50 Am.Jur.2d 449, 472-474 (1970); 93
A.L.R. 996, 997-998 (1934); Winters v. New York, 333 U. S. 507 , 333 U. S. 515 (1948). Indiana's first public nudity statute, Rev.Laws of Indiana,
ch. 26, § 60 (1831), predated by many years the appearance of nude
barroom dancing. It was general in scope, directed at all public
nudity, and not just at public nude expression; and all succeeding
statutes, down to Page 501 U. S. 574 the present one, have been the same. Were it the case that
Indiana in practice targeted only expressive nudity, while
turning a blind eye to nude beaches and unclothed purveyors of hot
dogs and machine tools, see Miller, 904 F.2d at 1120,
1121, it might be said that what posed as a regulation of conduct
in general was in reality a regulation of only communicative
conduct. Respondents have adduced no evidence of that. Indiana
officials have brought many public indecency prosecutions for
activities having no communicative element. See Bond v.
State, 515
N.E.2d 856 , 857 (Ind.1987); In re
Levinson, 444 N.E.2d
1175 , 1176 (Ind.1983); Preston v. State, 259 Ind. 353,
354-355, 287 N.E.2d
347 , 348 (1972); Thomas v. State, 238 Ind. 658,
659-660, 154 N.E.2d
503 , 504-505 (1958); Blanton v. State, 533
N.E.2d 190 , 191 (Ind.App.1989); Sweeney v.
State, 486
N.E.2d 651 , 652 (Ind.App.1985); Thompson v.
State, 482 N.E.2d
1372 , 1373-1374 (Ind.App.1985); Adims v.
State, 461 N.E.2d
740 , 741-742 (Ind.App.1984); State v.
Elliott, 435 N.E.2d
302 , 304 (Ind.App.1982); Lasko v.
State, 409 N.E.2d
1124 , 1126 (Ind.App.1980). [ Footnote 2/2 ]

															The dissent confidently asserts, post at 501 U. S.
590 -591, that the purpose of restricting nudity in
public places in general is to protect nonconsenting parties from
offense; and argues that, since only consenting, admission-paying
patrons see respondents dance, that purpose cannot apply, and the
only remaining purpose must relate to the communicative elements of
the performance. Perhaps the dissenters believe that "offense to
others" ought to be the only reason for restricting nudity in
public places generally, but there is no Page 501 U. S. 575 basis for thinking that our society has ever shared that
Thoreauvian "you may do what you like so long as it does not injure
someone else" beau ideal -- much less for thinking that it was
written into the Constitution. The purpose of Indiana's nudity law
would be violated, I think, if 60,000 fully consenting adults
crowded into the Hoosierdome to display their genitals to one
another, even if there were not an offended innocent in the crowd.
Our society prohibits, and all human societies have prohibited,
certain activities not because they harm others but because they
are considered, in the traditional phrase, " contra bonos
mores, " i.e., immoral. In American society, such
prohibitions have included, for example, sadomasochism,
cockfighting, bestiality, suicide, drug use, prostitution, and
sodomy. While there may be great diversity of view on whether
various of these prohibitions should exist (though I have found few
ready to abandon, in principle, all of them) there is no doubt
that, absent specific constitutional protection for the conduct
involved, the Constitution does not prohibit them simply because
they regulate "morality." See Bowers v. Hardwick, 478 U. S. 186 , 478 U. S. 196 (1986) (upholding prohibition of private homosexual sodomy enacted
solely on "the presumed belief of a majority of the electorate in
[the jurisdiction] that homosexual sodomy is immoral and
unacceptable"). See also Paris Adult Theatre I v. Slaton, 413 U. S. 49 , 413 U. S. 68 , n.
15 (1973); Dronenburg v. Zech, 239 U.S.App.D.C. 229, 238,
and n. 6, 741 F.2d 1388, 1397, and n. 6 (1984) (opinion of Bork,
J.). The purpose of the Indiana statute, as both its text and the
manner of its enforcement demonstrate, is to enforce the
traditional moral belief that people should not expose their
private parts indiscriminately, regardless of whether those who see
them are disedified. Since that is so, the dissent has no basis for
positing that, where only thoroughly edified adults are present,
the purpose must be repression of communication. [ Footnote 2/3 ] Page 501 U. S. 576 II Since the Indiana regulation is a general law not specifically
targeted at expressive conduct, its application to such conduct
does not, in my view, implicate the First Amendment.

															The First Amendment explicitly protects "the freedom of speech
[and] of the press" -- oral and written speech -- not "expressive
conduct." When any law restricts speech, even for a purpose that
has nothing to do with the suppression of communication (for
instance, to reduce noise, see Saia v. New York, 334 U. S. 558 , 334 U. S. 561 (1948), to regulate election campaigns, see Buckley v.
Valeo, 424 U. S. 1 , 424 U. S. 16 (1976), or to prevent littering, see Schneider v. State, 308 U. S. 147 , 308 U. S. 163 (1939)), we insist that it meet the high First-Amendment standard
of justification. But virtually every law restricts conduct, and
virtually any prohibited conduct can be performed for an expressive
purpose -- if only expressive of the fact that the actor disagrees
with the prohibition. See, e.g., Florida Free Beaches, Inc. v.
Miami, 734 F.2d 608, 609 (1984) (nude sunbathers challenging
public indecency law claimed their "message" was that nudity is not
indecent). It cannot reasonably be demanded, therefore, that every
restriction of expression incidentally produced by a general law
regulating conduct pass normal First Amendment scrutiny, or even --
as some of our cases have suggested, see e.g., United States v.
O'Brien, 391 U. S. 367 , 391 U. S. 377 (1968) -- that it be justified by an "important or substantial" Page 501 U. S. 577 government interest. Nor do our holdings require such
justification: we have never invalidated the application of a
general law simply because the conduct that it reached was being
engaged in for expressive purposes and the government could not
demonstrate a sufficiently important state interest.

															This is not to say that the First Amendment affords no
protection to expressive conduct. Where the government prohibits
conduct precisely because of its communicative attributes, we hold the regulation unconstitutional. See, e.g., United
States v. Eichman, 496 U. S. 310 (1990) (burning flag); Texas v. Johnson, 491 U.
S. 397 (1989) (same); Spence v. Washington, 418 U. S. 405 (1974) (defacing flag); Tinker v. Des Moines Independent
Community School District, 393 U. S. 503 (1969) (wearing black arm bands); Brown v. Louisiana, 383 U. S. 131 (1966) (participating in silent sit-in); Stromberg v.
California, 283 U. S. 359 (1931) (flying a red flag). [ Footnote
2/4 ] In each of the foregoing cases, we explicitly found that
suppressing communication was the object of the regulation of
conduct. Where that has not been the case, however -- where
suppression of communicative use of the conduct was merely the
incidental effect of forbidding the conduct for other reasons -- we
have allowed the regulation to stand. O'Brien, 391 U.S. at 391 U. S. 377 (law banning destruction of draft card upheld in application
against card-burning to protest Page 501 U. S. 578 war); FTC v. Superior Court Trial Lawyers Assn., 493 U. S. 411 (1990) (Sherman Act upheld in application against restraint of
trade to protest low pay); cf. United States v. Albertini, 472 U. S. 675 , 472 U. S.
687 -688 (1985) (rule barring petitioner from military
base upheld in application against entrance on base to protest
war); Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984) (rule barring sleeping in parks upheld in application
against persons engaging in such conduct to dramatize plight of
homeless). As we clearly expressed the point in Johnson: "The government generally has a freer hand in restricting
expressive conduct than it has in restricting the written or spoken
word. It may not, however, proscribe particular conduct because it has expressive elements. What might be termed
the more generalized guarantee of freedom of expression makes the
communicative nature of conduct an inadequate basis for
singling out that conduct for proscription."

															491 U.S. at 491 U. S. 406 (internal quotations and citations omitted; emphasis in
original).

															All our holdings (though admittedly not some of our discussion)
support the conclusion that

															"the only First Amendment analysis applicable to laws that do
not directly or indirectly impede speech is the threshold inquiry
of whether the purpose of the law is to suppress communication. If
not, that is the end of the matter so far as First Amendment
guarantees are concerned; if so, the court then proceeds to
determine whether there is substantial justification for the
proscription." Community for Creative Non-Violence v. Watt, 227
U.S.App.D.C.19, 55-56, 703 F.2d 586, 622-623 (1983) (en banc)
(Scalia, J., dissenting) (footnote omitted; emphasis omitted), rev'd, 468 U. S. Community for Creative Non-Violence, 468 U.
S. 288 (1984). Such a regime ensures that the government
does not act to suppress communication, without requiring that all
conduct-restricting regulation Page 501 U. S. 579 (which means in effect all regulation) survive an enhanced level
of scrutiny.

															We have explicitly adopted such a regime in another First
Amendment context: that of Free Exercise. In Employment
Division, Oregon Dept. of Human Resources v. Smith, 494 U. S. 872 (1990), we held that general laws not specifically targeted at
religious practices did not require heightened First Amendment
scrutiny even though they diminished some people's ability to
practice their religion.

															"The government's ability to enforce generally applicable
prohibitions of socially harmful conduct, like its ability to carry
out other aspects of public policy, 'cannot depend on measuring the
effects of a governmental action on a religious objector's
spiritual development.'" Id. at 494 U. S. 885 ,
quoting Lyng v. Northwest Indian Cemetery Protective
Assn., 485 U. S. 439 , 485 U. S. 451 (1988); see also Minersville School District v. Gobitis, 310 U. S. 586 , 310 U. S.
594 -595 (1940) (Frankfurter, J.) ("Conscientious
scruples have not, in the course of the long struggle for religious
toleration, relieved the individual from obedience to a general law
not aimed at the promotion or restriction of religious beliefs.").
There is even greater reason to apply this approach to the
regulation of expressive conduct. Relatively few can plausibly
assert that their illegal conduct is being engaged in for religious
reasons; but almost anyone can violate almost any law as a means of
expression. In the one case, as in the other, if the law is not
directed against the protected value (religion or expression) the
law must be obeyed. III While I do not think the plurality's conclusions differ greatly
from my own, I cannot entirely endorse its reasoning. The plurality
purports to apply to this general law, insofar as it regulates this
allegedly expressive conduct, an intermediate level of First
Amendment scrutiny: the government interest in the regulation must
be " important or substantial,'" ante at 501 U. S. 567 ,
quoting O'Brien, 391 U.S. at 391 U. S. 377 .
As I have indicated, Page 501 U. S. 580 I do not believe such a heightened standard exists. I think we
should avoid wherever possible, moreover, a method of analysis that
requires judicial assessment of the "importance" of government
interests -- and especially of government interests in various
aspects of morality.

															Neither of the cases that the plurality cites to support the
"importance" of the State's interest here, see ante at 501 U. S. 569 ,
is in point. Paris Adult Theatre I v. Slaton, 413 U.S. at 413 U. S. 61 ,
and Bowers v. Hardwick, 478 U.S. at 478 U. S. 196 ,
did uphold laws prohibiting private conduct based on concerns of
decency and morality; but neither opinion held that those concerns
were particularly "important" or "substantial," or amounted to
anything more than a rational basis for regulation. Slaton
involved an exhibition which, since it was obscene and at least to
some extent public, was unprotected by the First Amendment, see
Roth v. United States, 354 U. S. 476 (1957); the State's prohibition could therefore be invalidated only
if it had no rational basis. We found that the State's "right . . .
to maintain a decent society" provided a "legitimate" basis for
regulation -- even as to obscene material viewed by consenting
adults. 413 U.S. at 413 U. S. 59 -60.
In Bowers, we held that, since homosexual behavior is not
a fundamental right, a Georgia law prohibiting private homosexual
intercourse needed only a rational basis in order to comply with
the Due Process Clause. Moral opposition to homosexuality, we said,
provided that rational basis. 478 U.S. at 478 U. S. 196 .
I would uphold the Indiana statute on precisely the same ground:
moral opposition to nudity supplies a rational basis for its
prohibition, and since the First Amendment has no application to
this case, no more than that is needed. * * * * Indiana may constitutionally enforce its prohibition of public
nudity even against those who choose to use public nudity as a
means of communication. The State is regulating conduct, not
expression, and those who choose to employ conduct Page 501 U. S. 581 as a means of expression must make sure that the conduct they
select is not generally forbidden. For these reasons, I agree that
the judgment should be reversed.

															[ Footnote 2/1 ]

															Respondents assert that the statute cannot be characterized as a
general regulation of conduct, unrelated to suppression of
expression, because one defense put forward in oral argument below
by the attorney general referred to the "message of eroticism"
conveyed by respondents. But that argument seemed to go to whether
the statute could constitutionally be applied to the present
performances, rather than to what was the purpose of the
legislation. Moreover, the State's argument below was in the
alternative: (1) that the statute does not implicate the First
Amendment because it is a neutral rule not directed at expression,
and (2) that the statute in any event survives First Amendment
scrutiny because of the State's interest in suppressing nude
barroom dancing. The second argument can be claimed to contradict
the first (though I think it does not); but it certainly does not
waive or abandon it. In any case, the clear purpose shown by both
the text and historical use of the statute cannot be refuted by a
litigating statement in a single case.

															[ Footnote 2/2 ]

															Respondents also contend that the statute, as interpreted, is
not content-neutral in the expressive conduct to which it applies,
since it allegedly does not apply to nudity in theatrical
productions. See State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d
580 , 587 (1979). I am not sure that theater versus non-theater
represents a distinction based on content, rather than format, but
assuming that it does, the argument nonetheless fails for the
reason the plurality describes, ante at 501 U. S. 564 ,
n. 1.

															[ Footnote 2/3 ]

															The dissent, post at 501 U. S. 590 , 501 U. S.
595 -596 also misunderstands what is meant by the term
"general law." I do not mean that the law restricts the targeted
conduct in all places at all times. A law is "general" for the
present purposes if it regulates conduct without regard to whether
that conduct is expressive. Concededly, Indiana bans nudity in
public places, but not within the privacy of the home. (That is not
surprising, since the common law offense, and the traditional moral
prohibition, runs against public nudity, not against all
nudity. E.g., 50 Am.Jur.2d at 472-474.) But that confirms,
rather than refutes, the general nature of the law: one may not go
nude in public, whether or not one intends thereby to convey a
message, and similarly one may go nude in private, again
whether or not that nudity is expressive.

															[ Footnote 2/4 ]

															It is easy to conclude that conduct has been forbidden because
of its communicative attributes when the conduct in question is
what the Court has called "inherently expressive," and what I would
prefer to call "conventionally expressive" -- such as flying a red
flag. I mean by that phrase (as I assume the Court means by
"inherently expressive") conduct that is normally engaged in for
the purpose of communicating an idea, or perhaps an emotion, to
someone else. I am not sure whether dancing fits that description, see Dallas v. Stanglin, 490 U. S. 19 , 490 U. S. 24 (1989) (social dance group "do[es] not involve the sort of
expressive association that the First Amendment has been held to
protect"). But even if it does, this law is directed against
nudity, not dancing. Nudity is not normally engaged in for
the purpose of communicating an idea or an emotion.

															JUSTICE SOUTER, concurring in the judgment.

															Not all dancing is entitled to First Amendment protection as
expressive activity. This Court has previously categorized ballroom
dancing as beyond the Amendment's protection, Dallas v.
Stanglin, 490 U. S. 19 , 490 U. S. 24 -25
(1989), and dancing as aerobic exercise would likewise be outside
the First Amendment's concern. But dancing as a performance
directed to an actual or hypothetical audience gives expression at
least to generalized emotion or feeling, and where the dancer is
nude or nearly so, the feeling expressed, in the absence of some
contrary clue, is eroticism, carrying an endorsement of erotic
experience. Such is the expressive content of the dances described
in the record.

															Although such performance dancing is inherently expressive,
nudity per se is not. It is a condition, not an activity,
and the voluntary assumption of that condition, without more,
apparently expresses nothing beyond the view that the condition is
somehow appropriate to the circumstances. But every voluntary act
implies some such idea, and the implication is thus so common and
minimal that calling all voluntary activity expressive would reduce
the concept of expression to the point of the meaningless. A search
for some expression beyond the minimal in the choice to go nude
will often yield nothing: a person may choose nudity, for example,
for maximum sunbathing. But when nudity is combined with expressive
activity, its stimulative and attractive value certainly can
enhance the force of expression, and a dancer's acts in going from
clothed to nude, as in a strip-tease, are integrated into the dance
and its expressive function. Thus, I agree with the plurality and
the dissent that an interest in freely engaging in the nude dancing
at issue here is subject to a degree of First Amendment
protection. Page 501 U. S. 582 I also agree with the plurality that the appropriate analysis to
determine the actual protection required by the First Amendment is
the four-part enquiry described in United States v.
O'Brien, 391 U. S. 367 (1968), for judging the limits of appropriate state action
burdening expressive acts as distinct from pure speech or
representation. I nonetheless write separately to rest my
concurrence in the judgment, not on the possible sufficiency of
society's moral views to justify the limitations at issue, but on
the State's substantial interest in combating the secondary effects
of adult entertainment establishments of the sort typified by
respondents' establishments.

															It is, of course, true that this justification has not been
articulated by Indiana's legislature or by its courts. As the
plurality observes, "Indiana does not record legislative history,
and the state's highest court has not shed additional light on the
statute's purpose," ante at 501 U. S. 568 .
While it is certainly sound in such circumstances to infer general
purposes "of protecting societal order and morality . . . from [the
statute's] text and history," ibid., I think that we need
not so limit ourselves in identifying the justification for the
legislation at issue here, and may legitimately consider
petitioners' assertion that the statute is applied to nude dancing
because such dancing "encourag[es] prostitution, increas[es] sexual
assaults, and attract[s] other criminal activity." Brief for
Petitioners 37.

															This asserted justification for the statute may not be ignored
merely because it is unclear to what extent this purpose motivated
the Indiana Legislature in enacting the statute. Our appropriate
focus is not an empirical enquiry into the actual intent of the
enacting legislature, but rather the existence or not of a current
governmental interest in the service of which the challenged
application of the statute may be constitutional. Cf. McGowan
v. Maryland, 366 U. S. 420 Page 501 U. S. 583 (1961). At least as to the regulation of expressive conduct,
[ Footnote 3/1 ]

															"[w]e decline to void [a statute] essentially on the ground that
it is unwise legislation which [the legislature] had the undoubted
power to enact and which could be reenacted in its exact form if
the same or another legislator made a 'wiser' speech about it." O'Brien, supra, 391 U.S. at 391 U. S. 384 .
In my view, the interest asserted by petitioners in preventing
prostitution, sexual assault, and other criminal activity, although
presumably not a justification for all applications of the statute,
is sufficient under O'Brien to justify the State's
enforcement of the statute against the type of adult entertainment
at issue here.

															At the outset, it is clear that the prevention of such evils
falls within the constitutional power of the State, which satisfies
the first O'Brien criterion. See id. at 391 U. S. 377 .
The second O'Brien prong asks whether the regulation "furthers an
important or substantial governmental interest." Ibid. The
asserted state interest is plainly a substantial one; the only
question is whether prohibiting nude dancing of the sort at issue
here "furthers" that interest. I believe that our cases have
addressed this question sufficiently to establish that it does.

															In Renton v. Playtime Theatres, Inc., 475 U. S.
41 (1986), we upheld a city's zoning ordinance designed
to prevent the occurrence of harmful secondary effects, including
the crime associated with adult entertainment by protecting
approximately 95% of the city's area from the placement of motion
picture theaters emphasizing " matter depicting, describing or
relating to "specified sexual activities" or "specified anatomical
areas" . . . for observation by patrons therein.'" Id. at 475 U. S. 44 . Of
particular importance to the present enquiry, we held that the city
of Renton was not compelled to justify its restrictions by studies
specifically relating to the problems Page 501 U. S. 584 that would be caused by adult theaters in that city. Rather,
"Renton was entitled to rely on the experiences of Seattle and
other cities," id. at 475 U. S. 51 ,
which demonstrated the harmful secondary effects correlated with
the presence "of even one [adult] theater in a given neighborhood." Id. at 475 U. S. 50 ; cf. Young v. American Mini Theatres, Inc., 427 U. S.
50 , 427 U. S. 71 , n.
34 (1976) (legislative finding that "a concentration of `adult'
movie theaters causes the area to deteriorate and become a focus of
crime"); California v. LaRue, 409 U.
S. 109 , 409 U. S. 111 (1972) (administrative findings of criminal activity associated
with adult entertainment).

															The type of entertainment respondents seek to provide is plainly
of the same character as that at issue in Renton, American Mini
Theatres, and LaRue. It therefore is no leap to say
that live nude dancing of the sort at issue here is likely to
produce the same pernicious secondary effects as the adult films
displaying "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in which
this litigation arose confirm the conclusion. See, e.g., United
States v. Marren, 890 F.2d 924, 926 (CA7 1989) (prostitution
associated with nude dancing establishment); United States v.
Doerr, 886 F.2d 944, 949 (CA7 1989) (same). In light of Renton's recognition that legislation seeking to combat
the secondary effects of adult entertainment need not await
localized proof of those effects, the State of Indiana could
reasonably conclude that forbidding nude entertainment of the type
offered at the Kitty Kat Lounge and the Glen Theatre's "bookstore"
furthers its interest in preventing prostitution, sexual assault,
and associated crimes. Given our recognition that

															"society's interest in protecting this type of expression is of
a wholly different, and lesser, magnitude than the interest in
untrammeled political debate," American Mini Theatres, supra, 427 U.S. at 427 U. S. 70 , I
do not believe that a State is required affirmatively to undertake
to litigate this issue repeatedly in every Page 501 U. S. 585 case. The statute as applied to nudity of the sort at issue here
therefore satisfies the second prong of O'Brien. [ Footnote 3/2 ]

															The third O'Brien condition is that the governmental
interest be "unrelated to the suppression of free expression," 391
U.S. at 391 U. S. 377 ,
and, on its face, the governmental interest in combating
prostitution and other criminal activity is not at all inherently
related to expression. The dissent contends, however, that Indiana
seeks to regulate nude dancing as its means of combating such
secondary effects

															"because . . . creating or emphasizing [the] thoughts and ideas
[expressed by nude dancing] in the minds of the spectators may lead
to increased prostitution," post at 501 U. S. 592 ,
and that regulation of expressive conduct because of the fear that
the expression will prove persuasive is inherently related to the
suppression of free expression. Ibid. The major premise of the dissent's reasoning may be correct, but
its minor premise describing the causal theory of Indiana's
regulatory justification is not. To say that pernicious secondary
effects are associated with nude dancing establishments is not
necessarily to say that such effects result from the persuasive
effect of the expression inherent in nude dancing. It is to say,
rather, only that the effects are correlated with the existence of
establishments offering such dancing, without deciding what the
precise causes of the correlation Page 501 U. S. 586 actually are. It is possible, for example, that the higher
incidence of prostitution and sexual assault in the vicinity of
adult entertainment locations results from the concentration of
crowds of men predisposed to such activities, or from the simple
viewing of nude bodies, regardless of whether those bodies are
engaged in expression or not. In neither case would the chain of
causation run through the persuasive effect of the expressive
component of nude dancing.

															Because the State's interest in banning nude dancing results
from a simple correlation of such dancing with other evils, rather
than from a relationship between the other evils and the expressive
component of the dancing, the interest is unrelated to the
suppression of free expression. Renton is again persuasive
in support of this conclusion. In Renton, we held that an
ordinance that regulated adult theaters because the presence of
such theaters was correlated with secondary effects that the local
government had an interest in regulating was content-neutral (a
determination similar to the "unrelated to the suppression of free
expression" determination here, see Clark v. Community for
Creative Non-Violence, 468 U. S. 288 , 468 U. S. 298 ,
and n. 8 (1984)) because it was " justified without
reference to the content of the regulated speech." 475 U.S. at 475 U. S. 48 (emphasis in original). We reached this conclusion without need to
decide whether the cause of the correlation might have been the
persuasive effect of the adult films that were being regulated.
Similarly here, the "secondary effects" justification means that
enforcement of the Indiana statute against nude dancing is
"justified without reference to the content of the regulated
[expression]," ibid. (emphasis omitted), which is
sufficient, at least in the context of sexually explicit
expression, [ Footnote 3/3 ] to
satisfy the third prong of the O'Brien test. Page 501 U. S. 587 The fourth O'Brien condition, that the restriction be
no greater than essential to further the governmental interest,
requires little discussion. Pasties and a G-string moderate the
expression to some degree, to be sure, but only to a degree.
Dropping the final stitch is prohibited, but the limitation is
minor when measured against the dancer's remaining capacity and
opportunity to express the erotic message. Nor, so far as we are
told, is the dancer or her employer limited by anything short of
obscenity laws from expressing an erotic message by articulate
speech or representational means; a pornographic movie featuring
one of respondents, for example, was playing nearby without any
interference from the authorities at the time these cases
arose.

															Accordingly, I find O'Brien satisfied, and concur in
the judgment.

															[ Footnote 3/1 ] Cf., e.g., Edwards v. Aguillard, 482 U.
S. 578 (1987) (striking down state statute on
Establishment Clause grounds due to impermissible legislative
intent).

															[ Footnote 3/2 ]

															Because there is no overbreadth challenge before us, we are not
called upon to decide whether the application of the statute would
be valid in other contexts. It is enough, then, to say that the
secondary effects rationale on which I rely here would be open to
question if the State were to seek to enforce the statute by
barring expressive nudity in classes of productions that could not
readily be analogized to the adult films at issue in Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986). It is difficult to see, for example, how the enforcement of
Indiana's statute against nudity in a production of "Hair" or
"Equus" somewhere other than an "adult" theater would further the
State's interest in avoiding harmful secondary effects, in the
absence of evidence that expressive nudity outside the context of Renton -type adult entertainment was correlated with such
secondary effects.

															[ Footnote 3/3 ]

															I reach this conclusion again mindful, as was the Court in Renton, that the protection of sexually explicit
expression may be of lesser societal importance than the protection
of other forms of expression. See Renton, supra, at 475 U. S. 49 ,
and n. 2, citing Young v. American Mini Theatres, Inc., 427 U. S. 50 , 427 U. S. 70 (1976).

															JUSTICE WHITE, with whom JUSTICE MARSHALL, JUSTICE BLACKMUN, and
JUSTICE STEVENS join, dissenting.

															The first question presented to us in this case is whether
nonobscene nude dancing performed as entertainment is expressive
conduct protected by the First Amendment. The Court of Appeals held
that it is, observing that our prior decisions permit no other
conclusion. Not surprisingly, then, the Court now concedes that
"nude dancing of the kind sought to be performed here is expressive
conduct within the outer perimeters of the First Amendment. . . ." Ante at 501 U. S. 566 .
This is no more than recognizing, as the Seventh Circuit observed,
that dancing is an ancient art form and "inherently embodies the
expression and communication of ideas and emotions." Miller v.
Civil City of South Bend, 904 F.2d 1081, 1087 (1990) (en
banc). [ Footnote 4/1 ] Page 501 U. S. 588 Having arrived at the conclusion that nude dancing performed as
entertainment enjoys First Amendment protection, the Court states
that it must

															"determine the level of protection to be afforded to the
expressive conduct at issue, and must determine whether the Indiana
statute is an impermissible infringement of that protected
activity." Ante at 501 U. S. 566 .
For guidance, the plurality turns to United States v.
O'Brien, 391 U. S. 367 (1968), which held that expressive conduct could be narrowly
regulated or forbidden in pursuit of an important or substantial
governmental interest that is unrelated to the content of the
expression. The plurality finds that the Indiana statute satisfies
the O'Brien test in all respects.

															The plurality acknowledges that it is impossible to discern the
exact state interests which the Indiana legislature had in mind
when it enacted the Indiana statute, but the Court nonetheless
concludes that it is clear from the statute's text and history that
the law's purpose is to protect "societal order and morality." Ante at 501 U. S. 568 .
The plurality goes on to Page 501 U. S. 589 conclude that Indiana's statute "was enacted as a general
prohibition, " ante at 501 U. S. 568 (emphasis added), on people appearing in the nude among strangers
in public places. The plurality then points to cases in which we
upheld legislation based on the State's police power, and
ultimately concludes that the Indiana statute "furthers a
substantial government interest in protecting order and morality." Ante at 569. The plurality also holds that the basis for
banning nude dancing is unrelated to free expression, and that it
is narrowly drawn to serve the State's interest.

															The plurality's analysis is erroneous in several respects. Both
the Court and JUSTICE SCALIA in his concurring opinion overlook a
fundamental and critical aspect of our cases upholding the States'
exercise of their police powers. None of the cases they rely upon,
including O'Brien and Bowers v. Hardwick, 478 U. S. 186 (1986), involved anything less than truly general proscriptions on individual conduct. In O'Brien, for
example, individuals were prohibited from destroying their draft
cards at any time and in any place, even in completely private
places such as the home. Likewise, in Bowers, the State
prohibited sodomy, regardless of where the conduct might occur,
including the home, as was true in that case. The same is true of
cases like Employment Division, Oregon Dept. of Human Resources
v. Smith, 494 U. S. 872 (1990), which, though not applicable here because it did not
involve any claim that the peyote users were engaged in expressive
activity, recognized that the State's interests in preventing the
use of illegal drugs extends even into the home. By contrast, in
this case, Indiana does not suggest that its statute applies to, or
could be applied to, nudity wherever it occurs, including the home.
We do not understand the Court or JUSTICE SCALIA to be suggesting
that Indiana could constitutionally enact such an intrusive
prohibition, nor do we think such a suggestion would be tenable in
light of our decision in Stanley v. Georgia, 394 U.
S. 557 , (1969), in which we held that States could not
punish the Page 501 U. S. 590 mere possession of obscenity in the privacy of one's own
home.

															We are told by the Attorney General of Indiana that, in State v. Baysinger, 272 Ind. 236, 397 N.E.2d
580 (1979), the Indiana Supreme Court held that the statute at
issue here cannot and does not prohibit nudity as a part of some
larger form of expression meriting protection when the
communication of ideas is involved. Brief for Petitioners 25,
30-31; Reply Brief for Petitioners 9-11. Petitioners also state
that the evils sought to be avoided by applying the statute in this
case would not obtain in the case of theatrical productions, such
as Salome or Hair. Id. at 11-12. Neither
is there any evidence that the State has attempted to apply the
statute to nudity in performances such as plays, ballets or operas.
"No arrests have ever been made for nudity as part of a play or
ballet." App.19 (affidavit of Sgt. Timothy Corbett).

															Thus, the Indiana statute is not a general prohibition
of the type we have upheld in prior cases. As a result, the Court's
and JUSTICE SCALIA's simple references to the State's general
interest in promoting societal order and morality is not sufficient
justification for a statute which concededly reaches a significant
amount of protected expressive activity. Instead, in applying the O'Brien test, we are obligated to carefully examine the
reasons the State has chosen to regulate this expressive conduct in
a less than general statute. In other words, when the State enacts
a law which draws a line between expressive conduct which is
regulated and nonexpressive conduct of the same type which is not
regulated, O'Brien places the burden on the State to
justify the distinctions it has made. Closer inquiry as to the
purpose of the statute is surely appropriate.

															Legislators do not just randomly select certain conduct for
proscription; they have reasons for doing so, and those reasons
illuminate the purpose of the law that is passed. Indeed, a law may
have multiple purposes. The purpose of Page 501 U. S. 591 forbidding people from appearing nude in parks, beaches, hot dog
stands, and like public places is to protect others from offense.
But that could not possibly be the purpose of preventing nude
dancing in theaters and barrooms, since the viewers are exclusively
consenting adults who pay money to see these dances. The purpose of
the proscription in these contexts is to protect the viewers from
what the State believes is the harmful message that nude dancing
communicates. This is why Clark v. Community for Creative
Non-Violence, 468 U. S. 288 (1984), is of no help to the State:

															"In Clark, . . . the damage to the parks was the same
whether the sleepers were camping out for fun, were in fact
homeless, or wished by sleeping in the park to make a symbolic
statement on behalf of the homeless."

															904 F.2d at 1103 (Posner, J., concurring). That cannot be said
in this case: the perceived damage to the public interest caused by
appearing nude on the streets or in the parks, as I have said, is
not what the State seeks to avoid in preventing nude dancing in
theaters and taverns. There the perceived harm is the communicative
aspect of the erotic dance. As the State now tells us, and as
JUSTICE SOUTER agrees, the State's goal in applying what it
describes as its "content-neutral" statute to the nude dancing in
this case is "deterrence of prostitution, sexual assaults, criminal
activity, degradation of women, and other activities which break
down family structure." Reply Brief for Petitioners 11. The
attainment of these goals, however, depends on preventing an
expressive activity.

															The plurality nevertheless holds that the third requirement of
the O'Brien test, that the governmental interest be
unrelated to the suppression of free expression, is satisfied,
because, in applying the statute to nude dancing, the State is not
"proscribing nudity because of the erotic message conveyed by the
dancers." Ante at 501 U. S. 570 . The plurality suggests that this is so
because the State does not ban dancing that sends an erotic
message; it is only nude erotic dancing that is forbidden. The
perceived evil is not erotic dancing, but public Page 501 U. S. 592 nudity, which may be prohibited despite any incidental impact on
expressive activity. This analysis is transparently erroneous.

															In arriving at its conclusion, the Court concedes that nude
dancing conveys an erotic message, and concedes that the message
would be muted if the dancers wore pasties and G-strings. Indeed,
the emotional or erotic impact of the dance is intensified by the
nudity of the performers. As Judge Posner argued in his thoughtful
concurring opinion in the Court of Appeals, the nudity of the
dancer is an integral part of the emotions and thoughts that a nude
dancing performance evokes. Id. at 1090-1098. The sight of
a fully clothed, or even a partially clothed, dancer generally will
have a far different impact on a spectator than that of a nude
dancer, even if the same dance is performed. The nudity is itself
an expressive component of the dance, not merely incidental
"conduct." We have previously pointed out that " [n]udity alone'
does not place otherwise protected material outside the mantle of
the First Amendment." Schad v. Mt. Ephraim, 452 U. S.
61 , 452 U. S. 66 (1981). This being the case, it cannot be that the statutory prohibition
is unrelated to expressive conduct. Since the State permits the
dancers to perform if they wear pasties and G-strings, but forbids
nude dancing, it is precisely because of the distinctive,
expressive content of the nude dancing performances at issue in
this case that the State seeks to apply the statutory prohibition.
It is only because nude dancing performances may generate emotions
and feelings of eroticism and sensuality among the spectators that
the State seeks to regulate such expressive activity, apparently on
the assumption that creating or emphasizing such thoughts and ideas
in the minds of the spectators may lead to increased prostitution
and the degradation of women. But generating thoughts, ideas, and
emotions is the essence of communication. The nudity element of
nude dancing performances cannot Page 501 U. S. 593 be neatly pigeonholed as mere "conduct" independent of any
expressive component of the dance. [ Footnote 4/2 ]

															That fact dictates the level of First Amendment protection to be
accorded the performances at issue here. In Texas v.
Johnson, 491 U. S. 397 , 491 U. S.
411 -412 (1989), the Court observed:

															"Whether Johnson's treatment of the flag violated Texas law thus
depended on the likely communicative impact of his expressive
conduct. . . . We must therefore subject the State's asserted
interest in preserving the special symbolic character of the flag
to 'the most exacting scrutiny.' Boos v.
Barry , 485 U.S. [312], 485 U. S.
321 [(1988)]."

															Content-based restrictions "will be upheld only if narrowly
drawn to accomplish a compelling governmental interest." United
States v. Grace, 461 U. S. 171 , 461 U. S. 177 (1983); Sable Communications of California, Inc. v. FCC, 492 U. S. 115 , 492 U. S. 126 (1989). Nothing could be clearer from our cases.

															That the performances in the Kitty Kat Lounge may not be high
art, to say the least, and may not appeal to the Court, is hardly
an excuse for distorting and ignoring settled doctrine. The
plurality's assessment of the artistic merits of nude dancing
performances should not be the determining factor in deciding this
case. In the words of Justice Harlan,

															"it is largely because governmental officials cannot make
principled decisions Page 501 U. S. 594 in this area that the Constitution leaves matters of taste and
style so largely to the individual." Cohen v. California, 403 U. S. 15 , 403 U. S. 25 (1971).

															"[W]hile the entertainment afforded by a nude ballet at Lincoln
Center to those who can pay the price may differ vastly in content
(as viewed by judges) or in quality (as viewed by critics), it may
not differ in substance from the dance viewed by the person who . .
. wants some 'entertainment' with his beer or shot of rye." Salem Inn, Inc. v. Frank, 501 F.2d 18, 21, n. 3 (CA2
1974), aff'd in part, Doran v. Salem Inn, Inc., 422 U. S. 922 (1975).

															The plurality and JUSTICE SOUTER do not go beyond saying that
the state interests asserted here are important and substantial.
But even if there were compelling interests, the Indiana statute is
not narrowly drawn. If the State is genuinely concerned with
prostitution and associated evils, as JUSTICE SOUTER seems to
think, or the type of conduct that was occurring in California
v. LaRue, 409 U. S. 109 (1972), it can adopt restrictions that do not interfere with the
expressiveness of nonobscene nude dancing performances. For
instance, the State could perhaps require that, while performing,
nude performers remain at all times a certain minimum distance from
spectators, that nude entertainment be limited to certain hours, or
even that establishments providing such entertainment be dispersed
throughout the city. Cf. Renton v. Playtime Theatres,
Inc., 475 U. S. 41 (1986). Likewise, the State clearly has the authority to
criminalize prostitution and obscene behavior. Banning an entire
category of expressive activity, however, generally does not
satisfy the narrow tailoring requirement of strict First Amendment
scrutiny. See Frisby v. Schultz, 487 U.
S. 474 , 487 U. S. 485 (1988). Furthermore, if nude dancing in barrooms as compared with
other establishments, is the most worrisome problem, the State
could invoke its Twenty-first Amendment powers and impose
appropriate regulation. New York State Liquor Authority v.
Bellanca, 452 U. S. 714 (1981) (per curiam); California v. LaRue, supra. Page 501 U. S. 595 As I see it, our cases require us to affirm, absent a compelling
state interest supporting the statute. Neither the Court nor the
State suggest that the statute could withstand scrutiny under that
standard.

															JUSTICE SCALIA's views are similar to those of the Court, and
suffer from the same defects. The Justice asserts that a general
law barring specified conduct does not implicate the First
Amendment unless the purpose of the law is to suppress the
expressive quality of the forbidden conduct, and that, absent such
purpose, First Amendment protections are not triggered simply
because the incidental effect of the law is to proscribe conduct
that is unquestionably expressive. Cf. Community for Creative
Non-Violence v. Watt, 227 U.S.App.D.C. 19, 703 F.2d 586,
622-623 (1983) (SCALIA, J., dissenting). The application of the
Justice's proposition to this case is simple to state: the statute
at issue is a general law banning nude appearances in public
places, including barrooms and theaters. There is no showing that
the purpose of this general law was to regulate expressive conduct;
hence, the First Amendment is irrelevant, and nude dancing in
theaters and barrooms may be forbidden irrespective of the
expressiveness of the dancing.

															As I have pointed out, however, the premise for the Justice's
position -- that the statute is a general law of the type
our cases contemplate -- is nonexistent in this case. Reference to
JUSTICE SCALIA's own hypothetical makes this clear. We agree with
JUSTICE SCALIA that the Indiana statute would not permit 60,000
consenting Hoosiers to expose themselves to each other in the
Hoosierdome. No one can doubt, however, that those same 60,000
Hoosiers would be perfectly free to drive to their respective homes
all across Indiana and, once there, to parade around, cavort, and
revel in the nude for hours in front of relatives and friends. It
is difficult to see why the State's interest in morality is any
less in that situation, especially if, as JUSTICE SCALIA seems to
suggest, nudity is inherently evil, but clearly the statute
does Page 501 U. S. 596 not reach such activity. As we pointed out earlier, the State's
failure to enact a truly general proscription requires closer
scrutiny of the reasons for the distinctions the State has drawn. See supra at 501 U. S.
590 .

															As explained previously, the purpose of applying the law to the
nude dancing performances in respondents' establishments is to
prevent their customers from being exposed to the distinctive
communicative aspects of nude dancing. That being the case, JUSTICE
SCALIA's observation is fully applicable here: "Where government
prohibits conduct precisely because of its communicative
attributes, we hold the regulation unconstitutional." Ante at 501 U. S.
577 .

															The O'Brien decision does not help JUSTICE SCALIA.
Indeed, his position, like the Court's, would eviscerate the O'Brien test. Employment Division, Oregon Dept. of
Human Resources v. Smith, 494 U. S. 872 (1990), is likewise not on point. The Indiana law, as applied to
nude dancing, targets the expressive activity itself; in Indiana,
nudity in a dancing performance is a crime because of the message
such dancing communicates. In Smith, the use of drugs was
not criminal because the use was part of or occurred within the
course of an otherwise protected religious ceremony, but because a
general law made it so, and was supported by the same interests in
the religious context as in others.

															Accordingly, I would affirm the judgment of the Court of
Appeals, and dissent from this Court's judgment.

															[ Footnote 4/1 ]

															JUSTICE SCALIA suggests that performance dancing is not
inherently expressive activity, see ante at 501 U. S. 577 ,
n. 4, but the Court of Appeals has the better view:

															"Dance has been defined as 'the art of moving the body in a
rhythmical way, usually to music, to express an emotion or idea, to
narrate a story, or simply to take delight in the movement itself.'
16 The New Encyclopedia Britannica 935 (1989). Inherently, it is
the communication of emotion or ideas. At the root of all"

															"[t]he varied manifestations of dancing . . . lies the common
impulse to resort to movement to externalise states which we cannot
externalise by rational means. This is basic dance."

															"Martin, J., Introduction to the Dance (1939).
Aristotle recognized in Poetics that the purpose of dance
is 'to represent men's character as well as what they do and
suffer.' The raw communicative power of dance was noted by the
French poet Stephane Mallarme, who declared that the dancer
'writing with her body . . . suggests things which the
written work could express only in several paragraphs of
dialogue or descriptive prose.'"

															904 F.2d at 1085-1086. JUSTICE SCALIA cites Dallas v.
Stanglin, 490 U. S. 19 (1989), but that decision dealt with social dancing, not
performance dancing; and the submission in that case, which we
rejected, was not that social dancing was an expressive activity,
but that plaintiff's associational rights were violated by
restricting admission to dance halls on the basis of age. The
Justice also asserts that, even if dancing is inherently
expressive, nudity is not. The statement may be true, but it tells
us nothing about dancing in the nude.

															[ Footnote 4/2 ]

															JUSTICE SOUTER agrees with the Court that the third requirement
of the O'Brien test is satisfied, but only because he is
not certain that there is a causal connection between the message
conveyed by nude dancing and the evils which the State is seeking
to prevent. See ante at 501 U. S. 585 .
JUSTICE SOUTER's analysis is at least as flawed as that of the
Court. If JUSTICE SOUTER is correct that there is no causal
connection between the message conveyed by the nude dancing at
issue here and the negative secondary effects that the State
desires to regulate, the State does not have even a rational basis
for its absolute prohibition on nude dancing that is admittedly
expressive. Furthermore, if the real problem is the "concentration
of crowds of men predisposed to the" designated evils, ante at 501 U. S. 586 ,
then the First Amendment requires that the State address that
problem in a fashion that does not include banning an entire
category of expressive activity. See Renton v. Playtime
Theatres, Inc., 475 U. S. 41 (1986).

Summary: The Supreme Court ruled that enforcing Indiana's public indecency law to prevent totally nude dancing does not violate the First Amendment's freedom of expression. While nude dancing is considered expressive conduct within the First Amendment, it is only marginally protected. The Court applied the four-part test from United States v. O'Brien and concluded that the law is justified despite its limitations on expressive activity. The law is within the state's constitutional power, furthers a substantial government interest in protecting societal order and morality, and is unrelated to the suppression of free expression.