Dissent

Dissent
The dissenters were Justices White, Marshall, Blackmun, and Stevens came to these conclusions of the case. The first question presented to us in this case is whether non obscene nude dancing performed as entertainment is expressive conduct protected by the First Amendment. For guidance, the plurality turns to United States v. O'Brien, 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. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/barnes.html The dissenters also believe that both the majority and Justice Scalia in his opinion concurring in the judgment overlook a fundamental and critical aspect of the case upholding the States’ exercise of their police power. None of the cases they rely upon, including O'Brien and Bowers v. Hardwick, 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. 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. http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/barnes.html