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Barnes v. Glen Theater Inc., 501 U.S. 560 (1991)

Barnes v. Glen Theater Inc., 501 U.S. 560 (1991). Is expressive conduct speech?. Background. Glen Theater, Inc. of South Bend, Indiana. adult entertainment - books, movies, live shows. Kitty Kat Lounge, Inc. of South Bend, Indiana. alcoholic beverages & go-go dancing.

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Barnes v. Glen Theater Inc., 501 U.S. 560 (1991)

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  1. Barnes v. Glen Theater Inc., 501 U.S. 560 (1991) Is expressive conduct speech?

  2. Background Glen Theater, Inc. of South Bend, Indiana. adult entertainment - books, movies, live shows Kitty Kat Lounge, Inc. of South Bend, Indiana. alcoholic beverages & go-go dancing Both wished to provide totally nude dancing.

  3. Indiana Code 35-451 (1988) • Public Indecency; indecent exposure • “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, a Class A misdemeanor.” • “‘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.”

  4. Claim • The First Amendment guarantees the freedom of expression and should prevent Indiana from enforcing their public indecency law on the dancing.

  5. Court • U.S. District Court for Northern District of Indiana • sue to prohibit the enforcement of the indecency statute • granted injunction statute facially overbroad • Court of Appeals for the Seventh Circuit • reversed decision; impossible to have such a challenge • remanded to District Court, to try the violation of First Amendment rights with respect to the dancing • U.S. District Court for Northern District of Indiana • concluded type of dancing was not protected by the constitution • judgement in favor of the city

  6. Court Continued • Court of Appeals for the Seventh Circuit • reversed; dancing was “expressive conduct” protected by First Amendment • court heard by all judges of the seventh circuit

  7. U.S. Supreme Court • Reviewed previous cases • Valid time, place, or manner restriction ? • U.S. v. O’Brien 391 U.S. 367 (1968) • O’Brian test • within the constitutional power • in government interest to protect order and morality • similar laws dating back to 1831 • statue only required a slight amount of clothing

  8. U.S. Supreme Court • Findings • Indiana’s public indecency law is not a violation of their First Amendment rights to expression. • ban on public nudity not dancing • Nude dancing is expressive conduct, however only slightly protected by the Constitution.

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