501 U.S. 560 (1991)
Respondents Glen Theatre, Inc. and Kitty Kat Lounge, Inc. operate establishments in South Bend, Indiana, that provide adult entertainment including live performances by nude or seminude dancers viewed through glass panels or on stage.1
Darlene Miller worked at the Kitty Kat Lounge on commission and sought to dance totally nude to increase her earnings.2 Gayle Ann Marie Sutro performed at Glen Theatre after a professional career in dancing and modeling.3 In 1985 the city enacted an ordinance banning public nudity, defined as the showing of genitals, pubic area, buttocks, or female nipples with less than full opaque covering, which required dancers to wear pasties and G-strings.4
Respondents filed suit in the United States District Court for the Northern District of Indiana alleging that the ordinance violated the First Amendment by prohibiting totally nude dancing.5 The District Court originally granted respondents' prayer for an injunction, finding that the statute was facially overbroad.6 On remand after the Seventh Circuit's initial reversal, the District Court concluded that the type of dancing these plaintiffs wish to perform is not expressive activity protected by the Constitution of the United States.7 It rendered judgment in favor of the defendants.8 The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment.9 The Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals on the question whether nude dancing is expressive conduct protected by the First Amendment.10
Whether the Indiana public indecency statute, as applied to totally nude dancing performed as entertainment at adult establishments, violates the First Amendment?11
Under the test established in United States v. O'Brien, a government regulation is sufficiently justified if it is within the constitutional power of the Government, if it furthers an important or substantial governmental interest, if the governmental interest is unrelated to the suppression of free expression, and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.12
No. The Indiana public indecency statute is within the constitutional power of the State to enact.13 It furthers the substantial governmental interest in protecting societal order and morality, an interest that has deep roots in the common law and is reflected in similar statutes in forty-seven states.14 This interest is unrelated to the suppression of free expression because the statute bans public nudity across the board and not because of the erotic message conveyed by the dancing.15 The restriction is no greater than is essential to the furtherance of that interest because the dancers may perform wearing pasties and G-strings, which leaves open ample alternative channels for the communication of the erotic message.16
The application of the Indiana public indecency statute to the totally nude dancing at the respondents' establishments does not violate the First Amendment.17
Related opinions on this issue
Justice Scalia concurred in the judgment on the distinct ground that the statute is a general law regulating conduct and not specifically directed at expression.18 Therefore it is not subject to First Amendment scrutiny at all.19 The law prohibits public nudity without regard to whether the nudity is intended to convey a message.20
Scalia stressed that the statute follows a long tradition of laws against public nudity never thought to run afoul of the freedom of speech.21 The purpose is to enforce traditional moral beliefs against indiscriminate exposure of private parts, which supplies a rational basis for the prohibition.22
Justice Souter concurred in the judgment by applying the O'Brien test but grounding the substantial governmental interest in the prevention of secondary effects such as prostitution and sexual assault associated with adult entertainment establishments.23 He concluded that this interest is unrelated to the suppression of expression because it arises from the correlation between the establishments and the evils rather than from the persuasive effect of the erotic message itself.24 The limitation to pasties and G-strings is modest and leaves the dancer's capacity to express the erotic message largely intact.25
Joined by Justice Marshall, Justice Blackmun, And Justice Stevens
Justice White dissented on the ground that the statute is not content-neutral and targets the erotic message conveyed by nude dancing.26 He argued that the state's asserted interest in secondary effects is related to the suppression of expression because the perceived harm arises from the communicative aspect of the performance.27 The statute is not narrowly tailored because less restrictive measures could address the concerns without banning the expressive conduct entirely.28
White pointed out that the statute is not a general prohibition because it does not reach nudity in the home or in theatrical productions.29 This requires closer scrutiny, revealing that the purpose is to prevent exposure to the erotic message of the dance.30