Amdt1.2.3.4.2.3 Public Indecency and Nudity

First Amendment:

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 immoral or 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

Footnotes

  1.  Jump to essay-1Erznoznik v. City of Jacksonville, 422 U.S. 205, 212–14 (1975).
  2.  Jump to essay-2E.g., Cohen v. California, 403 U.S. 15 (1971). Special rules apply to broadcast speech, which, because of its pervasive presence in the home and its accessibility to children, is accorded the most limited First Amendment protection of all media; non-obscene but indecent language and nudity may be curtailed, with the time of day and other circumstances determining the extent of curtailment. FCC v. Pacifica Foundation, 438 U.S. 726, 748 (1978). However, efforts by Congress and the FCC to extend the indecency ban to 24 hours a day were rebuffed by an appeals court. Action for Children’s Television v. FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations promulgated pursuant to Pub. L. No. 100-459, § 608), cert. denied, 503 U.S. 913 (1992). Earlier, the same court had invalidated an FCC restriction on indecent, non-obscene broadcasts from 6 a.m. to midnight, finding that the FCC had failed to adduce sufficient evidence to support the restraint. Action for Children’s Television v. FCC, 852 F.2d 1332, 1335 (D.C. Cir. 1988). In 1992, however, Congress imposed a 6 a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight exception for public radio and television stations that go off the air at or before midnight. Pub. L. No. 102-356, § 16 (1992), 47 U.S.C. § 303 note. This time, after a three-judge panel found the statute unconstitutional, the en banc court of appeals upheld it, except for its 10 p.m.-to-midnight ban on indecent material on non-public stations. Action for Children’s Television v. FCC, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). See also Broadcast Radio and Television, supra.
  3.  Jump to essay-3Justice Scalia, concurring in Sable Communications v. FCC, 492 U.S. 115, 132 (1989), suggested that there should be a sliding scale taking into account the definition of obscenity: The more narrow the understanding of what is ‘obscene,’ and hence the more pornographic what is embraced within the residual category of ‘indecency,’ the more reasonable it becomes to insist upon greater assurance of insulation from minors. Barnes v. Glen Theatre, 501 U.S. 560 (1991), upholding regulation of nude dancing even in the absence of a threat to minors, may illustrate a general willingness by the Court to apply soft rather than strict scrutiny to regulation of more sexually explicit expression.
  4.  Jump to essay-4501 U.S. 560 (1991).
  5.  Jump to essay-5501 U.S. at 568 (Chief Justice Rehnquist, joined by Justices O’Connor and Kennedy).
  6.  Jump to essay-6501 U.S. at 581 (Justice Souter).
  7.  Jump to essay-7501 U.S. at 572 (Justice Scalia). The Justice thus favored application of the same approach applied to free exercise of religion in Employment Division v. Smith, 494 U.S. 872 (1990).
  8.  Jump to essay-8Earlier cases had established as much. See California v. LaRue, 409 U.S. 109, 118 (1972); Southeastern Promotions v. Conrad, 420 U.S. 546, 557–58 (1975); Doran v. Salem Inn, 422 U.S. 922, 932 (1975); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 716, 718 (1981). Presumably, then, the distinction between barroom erotic dancing, entitled to minimum protection, and social ballroom dancing, not expressive and hence not entitled to First Amendment protection (see City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)), still hangs by a few threads. Justice Souter, concurring in Barnes, 501 U.S. 560, 587 (1991), recognized the validity of the distinction between ballroom and erotic dancing, a validity that had been questioned by a dissent in the lower court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128–29 (7th Cir. 1990) (Easterbrook, J.).
  9.  Jump to essay-9Although Justice Souter relied on what were essentially zoning cases (Young v. American Mini Theatres and Renton v. Playtime Theatres) to justify regulation of expression itself, he nonetheless pointed out that a pornographic movie featuring one of the respondent dancers was playing nearby without interference by the authorities. This suggests that, at least with respect to direct regulation of the degree of permissible nudity, he might draw a distinction between live and film performances even while acknowledging the harmful secondary effects associated with both.
  10.  Jump to essay-10The Court has not ruled directly on such issues. See Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the denial of use of a public auditorium for a production of the musical Hair, in the absence of procedural safeguards that must accompany a system of prior restraint). Presumably the Barnes plurality’s public-morality rationale would apply equally to the adult stage and to the operatic theater, while Justice Souter’s secondary effects rationale would not. But the plurality ducked this issue, reinterpreting the lower court record to deny that Indiana had distinguished between adult and theatrical productions. 501 U.S. at 564 n.1 (Chief Justice Rehnquist); id. at 574 n.2 (Justice Scalia). On the other hand, the fact that the state authorities disclaimed any intent to apply the statute to theatrical productions demonstrated to dissenting Justice White (who was joined by Justices Marshall, Blackmun, and Stevens) that the statute was not a general prohibition on public nudity, but instead was targeted at the communicative aspect of the erotic dance. Id. at 591.
  11.  Jump to essay-11The Court had only recently affirmed that music is entitled to First Amendment protection independently of the message conveyed by any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989)), so it seems implausible that the Court was signaling a narrowing of protection to only ideas and opinions. Rather, the Court seems willing to give government the benefit of the doubt when it comes to legitimate objectives in regulating expressive conduct that is sexually explicit. For an extensive discourse on the expressive aspects of dance and the arts in general, and the striptease in particular, see Judge Posner’s concurring opinion in the lower court’s disposition of Barnes. Miller v. Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).
  12.  Jump to essay-12529 U.S. 277 (2000).
  13.  Jump to essay-13529 U.S. at 292, 291.
  14.  Jump to essay-14529 U.S. at 310–311.
  15.  Jump to essay-15529 U.S. at 316.
  16.  Jump to essay-16529 U.S. at 301. The plurality said that, though nude dancing is expressive conduct, we think that it falls only within the outer ambit of the First Amendment’s protection. Id. at 289. The opinion also quotes Justice Stevens to the same effect with regard to erotic materials generally. Id. at 294. In United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826 (2000), however, the Court wrote that it cannot be influenced . . . by the perception that the regulation in question is not a major one because the speech ['signal bleed' of sexually oriented cable programming] is not very important.
  17.  Jump to essay-17529 U.S. at 301.
  18.  Jump to essay-18588 U.S. ___, No. 18-302, slip op. (2019) .
  19.  Jump to essay-19Id. at 2 (quoting 15 U.S.C. § 1052(a)).
  20.  Jump to essay-20Id. at 6, 8. The Court illustrated how the statute favors and disfavors certain viewpoints with the following examples: ‘Love rules’? ‘Always be good’? Registration follows. ‘Hate rules’? ‘Always be cruel’? Not according to the Lanham Act’s ‘immoral or scandalous’ bar. Id. at 6.
  21.  Jump to essay-21Id. at 8–9.
  22.  Jump to essay-22Id. Accordingly, the Court declined to reach the question of whether a statute limited to lewd, sexually explicit, and profane marks would comport with the First Amendment. Id. at 10 n.*.