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Two businesses - the Kitty Kat Lounge, Inc. and Glen Theatre, Inc. - operated adult entertainment
establishments in South Bend, Indiana. The Kitty Kat was a club that sold alcoholic beverages in
addition to employing live female exotic dancers to entertain its patrons. Glen Theatre was
primarily in the business of selling adult entertainment materials, such as magazines and videos,
and had an enclosed "bookstore" area where customers could insert coins into a machine which
would allow them to view live female exotic dancers. Both businesses sought to include fully nude
dancers to their entertainment lineup, but were prevented by an Indiana statute regulating "indecent
Specifically, the statute read that dancers must wear, at a minimum, pasties and g-strings to provide
basic coverage of the dancers' bodies. As this law necessarily prevented complete nudity in
businesses open to the public, Kitty Kat and Glen Theatre were legally unable to offer nude
dancing, prompting them to file suit in the United States District Court for the Northern District of
Indiana on First Amendment grounds. The respondents, represented by Patrick Baude, professor
at Indiana University School of Law - Bloomington, argued that the prohibition of complete nudity
in public places was unconstitutionally overbroad. The District Court granted an injunction,
against enforcement of the indecency statute.
The Seventh Circuit Court of Appeals reversed the District Court's decision based on prior suit in
the Supreme Court of Indiana as well as the United States Supreme Court that denied the
respondents' the ability to pursue relief with their current constitutional argument. The case was
remanded to District Court, allowing the businesses to argue against the statute as it applied to the
proposed dancing rather than claiming constitutional overbreadth.
The District Court, upon remand, declared that the dancing was not constitutionally protected
speech, and the businesses appealed to the Seventh Circuit Court of Appeals, which reversed the
District Court's ruling. The opinions authored by the judges on the Seventh Circuit's panel accepted
the argument that the statute in question unduly infringed on freedom of expression; in this case,
the message of "eroticism and sexuality" that the dancers were meant to convey.
In determining the type of protection, the plurality turned to the "time, place, or manner" test as
implemented in United States v. O'Brien (1968), the four-pronged "O'Brien Test." The plurality
found that enacting this sort of legislation was clearly within the constitutional authority of the
state, and that the statute furthered a substantial government interest. To understand the legislative
intent behind the creation of the statute, the plurality turned to the history of indecency law, noting
an expansive history and breadth of adoption for such legislation. Considering available precedent
from cases such as Roth v. United States (1957) and Bowers v. Hardwick (1986), the plurality
concluded that the statute furthered a government interest in order and morality.
With regards to the third part of the O'Brien Test, the plurality stated that the statute was not related
to suppressing expression. The statute did not prohibit nude dancing alone, but rather all nudity in
public places. While it may be in some manner "expressive" for a person to appear naked in public,
the plurality determined that basically any conduct anyone engages in at any time can be
considered "expressive," so merely being expressive is not enough to bring such an argument. To
provide support for the logical foundations of this finding, the plurality said,
"The requirement that the dancers don pasties and a G-string does not deprive the dance of
whatever erotic message it conveys; it simply makes the message slightly less graphic. The
perceived evil that Indiana seeks to address is not erotic dancing, but public nudity. The appearance
of people of all shapes, sizes and ages in the nude at a beach, for example, would convey little if
any erotic message, yet the state still seeks to prevent it. Public nudity is the evil the state seeks to
prevent, whether or not it is combined with expressive activity."
As to the final point of the O'Brien test, the plurality contended that the statute was narrowly
tailored to achieve the government interest it sought to promote. Indiana's statute was not intended
as a clandestine attempt at silencing the potentially expressive conduct of a person dancing in the
nude; it was "an end in itself," designed to codify the societal disapproval of nude strangers in
public. Even though, as the respondents contended, the patrons in their establishments are all of
legal age and all willing to see the prohibited nudity, the fact remains that, for the purposes of the
constitutional question at hand, the statute was not needlessly restrictive.
In closing, the plurality reversed the ruling of the Court of Appeals. In effect, this ruling determined
that it was not unconstitutional for a state to enact legislation forbidding public nudity outright,
particularly if the only requirement for a person to no longer be considered "nude" was wearing
some of the most revealing possible clothing.