NUDE DANCING

Earlier Supreme Court Case on topless dance: Doran v. Salem Inn (1975)

Justice Rehnquist:

"Although the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized . . . that this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances."

"The local ordinance here attacked not only prohibits topless dancing in bars but also prohibits any female from appearing in 'any public place' with uncovered beasts. There is no limit to the interpretation of the term 'any public place.' It could include the theater, town hall, opera house, as well as a public market place, street or any place of assembly, indoors or outdoors. thus, this ordinance would prohibit the performance of the 'Ballet Africains' and a number of other works of unquestionable artistic and socially redeeming significance."

INDIANA STATUTE

No legislative history

Nudity is defined as 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 turgit state"

PENNSYLVANIA STATUTE

Legislative history--the regulation was adopted "for the purpose of limiting a recent increase in nude live entertainment within the City" because of negative secondary effects ("activity which impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to):

*violence

*sexual harassment

*public intoxication

*prostitution

*spread of sexually transmitted disease

Nudity is defined in a way similar to the IN statute, but adds any covering which "gives the appearance of or simulates" genitals and other areas of the body.

 

Barnes v. Glen Theatre

Justices Rehnquist, Kennedy and O'Connor:

The test to use is the O'Brien test

*"the government regulation is within the constitutional power of the government to enact"

*"the regulation furthers an important or substantial government interest"

*"the government interest is unrelated to the supression of free expression"

*"the restriction is no greater than is essential to the furtherance of the government interest

Justice Scalia:

The statute regulates conduct, not expression. No First Amendment analysis is required.

Justice Souter:

Secondary effects analysis would not apply to such artistic performances as "Hair," "Equus," or "Salome."

Justices White, Stevens, Blackmun, Marshall, dissenting:

The statute is unconstitutional.

*It doesn't further morality

*The harm of nudity is the offense it causes to others; here patrons pay to see it

*The restriction is too large; forbid the serving of alcohol or disperse such establishments throughout the community (zoning)

 

City of Erie v. Pap's A.M. ("Kandyland")

Justices O'Connor, Rehnquist, Kennedy and Breyer:

The case is not moot.

O'Brien applies.

Justices Scalia and Thomas:

The case is moot.

Justices Stevens and Ginsberg:

In our past decisions, secondary effects of adult establishments have justified ONLY the regulation of their location, not the total suppression of speech.

Young v. American Mini Theatres

Renton v. Playtime Theatres

Secondary effects will not be reduced by the ordinance.

Discriminatory application: "Hair," "Equus," etc.

Justice Souter:

Need for evidence of secondary effects--factual justification.

Past decisions require "real harm" and the regulation must "alleviate harm. Turner I: "When the Government defends a regulation of speech as a means to address past harms or prevent anticipated harms, it must do more that simply 'posit the existence of the disease sought to be cured.' It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way."