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. 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.
Even though, as the respondents contended, the patrons in their establishments are all of legal age and all willing to see the prohibited nudity, the fact remains that, for the purposes of the constitutional question at hand, the statute was not needlessly restrictive.
v. GLEN THEATRE,INC., et al. 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.
"Thus, the public indecency statute furthers a substantial government interest in protecting order and morality. "I agree that the judgment of the Court of Appeals must be reversed. [That fact dictates the level of First Amendment protection to be accorded the performances at issue here. 1. 414, 419 (ND Ind.1988). On its face, this law is not directed at expression in particular. The nudity element of nude dancing performances cannot be neatly pigeonholed as mere "conduct" independent of any expressive component of the dance.
236, 247, 397 N.E.2d 580, 587 (1979) (emphasis added), appeals dism'd sub nom. 1976 Ind.Acts, Pub.L. .
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.
. ""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.
Public nudity is the evil the state seeks to prevent, whether or not it is combined with expressive activity.As to the final point of the O'Brien test, the plurality contended that the statute was narrowly tailored to achieve the government interest it sought to promote. 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. 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. 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. They receive a 100 percent commission on the first $60 in drink sales during their performances. 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 actually are. But the court rejected this expansive notion of "expressive conduct" in "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. He agrees in large part with the dissent, but differs by saying that the negative secondary effects (such as prostitution, violence, etc.) (a) A person who knowingly or intentionally, in a public place:""(4) fondles the genitals of himself or another person;""(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. However, he differed from the plurality by arguing that the Indiana statute did not regulate any kind of expression, merely conduct. ." The court held that the nude dancing involved here was not expressive conduct.
Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech.
"The plurality and JUSTICE SOUTER do not go beyond saying that the state interests asserted here are important and substantial. lies the common impulse to resort to movement to externalise states which we cannot externalise by rational means. He claimed that his conviction was contrary to the First Amendment because his act was "symbolic speech" -- expressive conduct. The statutory prohibition is not a means to some greater end, but an end in itself. Pp. 45, ch. 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.
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