Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
There is expression, consisting of words or pictures, that some find offensive but that does not constitute obscenity and is protected by the First Amendment. Nudity portrayed in films or stills cannot be presumed obscene;1 nor can offensive language ordinarily be punished simply because it offends someone.2 Nonetheless, government may regulate sexually explicit but non-obscene expression in a variety of ways. Legitimate governmental interests may be furthered by appropriately narrow regulation, and the Court’s view of how narrow regulation must be is apparently influenced not only by its view of the strength of the government’s interest in regulation, but also by its view of the importance of the expression itself. In other words, sexually explicit expression does not receive the same degree of protection afforded purely political speech.3
The Court has held, however, that
live productions containing nudity may be regulated to a greater extent than may films or publications. Whether this represents a distinction between live performances and other entertainment media, or whether it signals a more permissive approach overall to governmental regulation of non-obscene but sexually explicit material, remains to be seen. In Barnes v. Glen Theatre, Inc.,4 the Court upheld application of Indiana’s public indecency statute to require that dancers in public performances of nude, non-obscene erotic dancing wear
pasties and a
G-string rather than appear totally nude. There was no opinion of the Court, three Justices viewing the statute as a permissible regulation of
societal order and morality,5 one viewing it as a permissible means of regulating supposed secondary effects of prostitution and other criminal activity,6 and a fifth Justice seeing no need for special First Amendment protection from a law of general applicability directed at conduct rather than expression.7 All but one of the Justices agreed that nude dancing is entitled to some First Amendment protection,8 but the result of Barnes was a bare minimum of protection. Numerous questions remain unanswered. In addition to the uncertainty over applicability of Barnes to regulation of the content of films or other shows in
adult theaters,9 there is also the issue of its applicability to nudity in operas or theatrical productions not normally associated with commercial exploitation of sex.10 But broad implications for First Amendment doctrine are probably unwarranted.11 The Indiana statute was not limited in application to barrooms; had it been, then the Twenty-first Amendment would have afforded additional authority to regulate the erotic dancing.
In Erie v. Pap's A.M.,12 the Supreme Court again upheld the application of a statute prohibiting public nudity to an
adult entertainment establishment. Although there was again only a plurality opinion, parts of that opinion were joined by five justices. These five adopted Justice Souter’s position in Barnes, that the statute satisfied the O’Brien test because it was intended
to combat harmful secondary effects, such as
prostitution and other criminal activity.13 Justice Souter, however, although joining the plurality opinion, also dissented in part. He continued to believe that secondary effects were an adequate justification for banning nude dancing, but did not believe
that the city has made a sufficient evidentiary showing to sustain its regulation, and therefore would have remanded the case for further proceedings.14 He acknowledged his
mistake in Barnes in failing to make the same demand for evidence.15
The plurality opinion found that Erie’s public nudity ban
regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis, because Erie allowed dancers to perform wearing only pasties and G-strings.16 It may follow that
requiring dancers to wear pasties and G-strings may not greatly reduce . . . secondary effects, but O’Brien requires only that the regulation further the interest of combating such effects, not that it further it to a particular extent.17 The plurality opinion did not address the question of whether statutes prohibiting public nudity could be applied to serious theater, but its reliance on secondary effects suggests that they could not.
Regardless of the government’s interests in regulating indecent expression, it may not restrict such expression in a viewpoint discriminatory way, as the Supreme Court reaffirmed in Iancu v. Brunetti.18 Ianc involved a provision of the Lanham Act, the federal law governing trademarks, that prohibited the registration of
scandalous marks.19 Drawing on dictionary definitions of those terms, the Court concluded that
the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation, thus discriminating on the basis of viewpoint.20 In holding this provision unconstitutional, the Court declined to construe the statute, as the government urged, as prohibiting certain ways of expressing ideas such as vulgarity or profanity rather than barring expression of the ideas themselves.21 The Court reasoned that the law by its own terms reached content beyond sexually explicit and profane speech.22