Barnes v. Glen Theatre
Significance: While reaffirming that nude dancing is expressive conduct protected by the First Amendment, the Supreme Court nevertheless upheld a state's general ban on complete nudity in public places.
In Schad v. Borough of Mount Ephraim (1981), the Supreme Court held that nonobscene nude dancing was a protected form of expression that could not be entirely prohibited throughout an entire community. Indiana's public decency statute prohibited complete nudity in all public places. Two adult-entertainment establishments in South Bend, Indiana, wanted to feature “totally nude dancing,” but the decency statute required that the dancers wear pasties and G-strings. Although the Court upheld the law by a 5-4 majority, Chief Justice William H. Rehnquist spoke for a plurality when he argued that the law was not expressly designed to prevent erotic expression and that the law only placed an incidental limitation on expression. The statute, he wrote, was essentially a time, place, and manner regulation, in keeping with the test set forth in United States v. O’Brien (1968). Observing that nudity had historically been proscribed by common law, he concluded that a ban on nudity furthered the state's substantial interest in protecting public morality and public order. In a concurrence, Justice David H. Souter argued that the law legitimately prevented secondary effects of nude dancing, such as prostitution. Justice Byron R. White's dissent argued that the very purpose of the law was to prohibit the expression of a nonobscene erotic message; therefore, the law should be scrutinized with the compelling state interest test.