States and local governments may ban all barroom-style nude dancing, the Supreme Court ruled Friday.
By a 5-4 vote, the justices said an Indiana public-indecency law that bans nude dancing does not violate the First Amendment.The amendment protects freedom of speech and expression.
Chief Justice William H. Rehnquist, in the court's main opinion, said the Indiana law protects "societal order and morality" in a constitutionally permissible way.
Justices Sandra Day O'Connor and Anthony M. Kennedy joined Rehnquist's opinion. Justices Antonin Scalia and David H. Souter, in separate opinions, agreed that states may ban such dancing.
Justices Byron R. White, Thurgood Marshall, Harry A. Blackmun and John Paul Stevens dissented.
The court in 1981 said nude dancing "is not without its First Amendment protections from official regulations." But the 1981 ruling did not specify the precise scope of those protections.
Friday the court again ruled that nude dancing does have some constitutional protection, but added that states may regulate or ban it.
The decision did not say whether a state could attempt to outlaw a nude ballet, or nude scenes in an opera. But Rehnquist's opinion repeatedly referred to the conduct being banned as "go-go" and "barroom style" dancing.
The Indiana law was challenged by two South Bend businesses - a bar and an adultbookstore that features live dancers - and three women who said they wanted to dance without wearing "pasties" and "G-strings."
Lawyers for JR's Kitty Kat Lounge, the Chippewa Bookstore and dancers Gayle Sutro, Carla Johnson and Darlene Miller lost before a federal trial judge but won in the Chicago-based 7th U.S. Circuit Court of Appeals.
The appeals court, by a 7-4 vote, said nude dancing is "inherently expressive" and as such is constitutionally protected.
Friday, the high court said the appeals court was wrong.
"Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places," Rehnquist said.
But he said erotic performances will be allowed so long as dancers wear G-strings and pasties.
The decision relied heavily on a 1968 ruling in which the court upheld a criminal conviction for burning a draft card. In that ruling, the court said government officials do not violate First Amendment rights when they regulate the "non-speech" element of conduct that is combined with some "speech" element.
More recently, in decisions that struck down bans on burning the U.S. flag, the court has said that conduct receives constitutional protection if there is a conscious intent to convey a message and if it is likely the message will be understood by those who witness it.
States already had the power under the 21st Amendment to regulate performances.