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

My argument

My Argument

I agree with what the court decision that the state law’s purpose is not to interfere with how the establishments are ran but the state law is a general law that covers that there shall be no nudity or obscenity of any sort in public. I agree mainly with Justice Scalia because he points out the specifics of the Indiana statue in his opinion and how it doesn’t relate to offending the first amendment rights. He states that 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. http://ussupremecourtcases.us/USSC/Vol_1991/1991_Barnes_v_Glen_Theatre_Inc_501_US_560.htm
Since the law is presented for the general public it cannot possibly be restricting the establishments from their right of free expression the law is only enforcing what has already been imposed in the state.

Rule of law

Rule of law
The main past references used to decide the case were United States v O’Brien, Glen Theatre Inc. v Pearson, “time, place, or manner” Ward v Rock against Racism, and Dallas v Stanglin.
In the case of United States v O’Brien this case was referred because of its four part test though in this case of Glen theatre v Indiana it had failed the third part of the test which was a test for whether the situation was violating the constitution right of expression from what I understand from going over all the courts references. The O’Brien case was also used as a reason for why everything we do can be look on as expression so where do they draw the line. Glen Theatre Inc v Pearson was a previous case which involved the same issues of nude dancing. Ward v Rock against Racism was saying that there is a time, place, and manner in which certain things should be done. In Dallas v Stanglin it states, "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."
http://ussupremecourtcases.us/USSC/Vol_1991/1991_Barnes_v_Glen_Theatre_Inc_501_US_560.htm
These previous cases are what brought the majority justices to make their decisions.

Reasoning of the Court

Reasoning of the Court
The reasoning of the court or of the majority came to their conclusions of why the Indiana statue should continue to stay in its place. Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy together came to the same opinions for the reasoning of their decisions. For Chief Justice Rehnquist, Justices O’Connor and Kennedy their reasoning for 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, 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 [501 U.S. 560, 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. http://ussupremecourtcases.us/USSC/Vol_1991/1991_Barnes_v_Glen_Theatre_Inc_501_US_560.htm p3 While Justices Scalia and Souter came up with concluding opinions of for themselves. Justice Scalia reasoning was in his view that the Indiana statue is not directed towards the establishments dancing he states. In my view, 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. Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches topless hot dog vendors as speech." 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. http://ussupremecourtcases.us/USSC/Vol_1991/1991_Barnes_v_Glen_Theatre_Inc_501_US_560.htm p8 As for Justice Souter his conclusion was also different his opinion for the statue was that not all dancing is protected by expression in the first amendment. He states, This Court has previously categorized ballroom dancing as beyond the Amendment's protection, Dallas v. Stanglin, 490 U.S. 19, 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. http://ussupremecourtcases.us/USSC/Vol_1991/1991_Barnes_v_Glen_Theatre_Inc_501_US_560.htm p13.

Decision of the Court

Decision of the Court
The final decision of the court came to be five to four with the majority deciding to uphold the Indiana statue of indecent exposure. The majority justices were Chief Justice Rehnquist, Justice O’Connor, Justice Kennedy, Justice Scalia, and Justice Souter whom came to this conclusion. Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. 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 labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea." http://www.law.umkc.edu/faculty/projects/ftrials/conlaw/barnes.html The ones against the majority were Justice White, Justice Marshall, Justice Blackmun, and Justice Stevens. The dissenters pointed out that far from being merely a restriction on “time, place, or manner,” the Indiana la was intended to prevent customers in establishments such as Glen Theatre form being exposed to the sensuality and eroticism that were the essence of the dancers’ expression. http://law.jrank.org/pages/12825/Barnes-v-Glen-Theatre-Inc.html

Issues of the Case

Issue of the Case
Glen Theatre, Inc. and The Kitty Kat Lounge Inc. want their dancers to be able to perform totally nude but the state of Indiana’s state public indecency law prohibits any public nudity. The Indiana’s public indecency statute states: a person who knowingly or intentionally, in a public place engages in sexual intercourse, engages in deviate sexual conduct, appears in a state of nudity, or fondles the genitals of himself or another person, commits public indecency. http://law.jrank.org/pages/12825/Barnes-v-Glen-Theatre-Inc.html The law requires that the dancers of The Kitty Kat lounge and of Glen theatres Inc. wear at least pasties and g-strings. The word nudity means by the court, 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. http://ussupremecourtcases.us/USSC/Vol_1991/1991_Barnes_v_Glen_Theatre_Inc_501_US_560.htm

The Facts

The Facts
Two Indiana adult entertainment establishments want to present full nudity of their dancers for entertainment and brought suit to the District Court because of the Indiana state public indecency law. The state Indecency law requires for dancers to wear pasties and a G-string. The Kitty Kat Lounge which provides go go dancers is one of the establishments and the other is Glen Theatres which provides adult movies, books, and female dancers to entertain guests through glass windows. “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.” http://www.law.cornell.edu/supct/html/historics/USSC_CR_0501_0560_ZO.html