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Argued May 25, Reargued En Banc Jan. Decided May 24, As Amended May 24, Charles A. Asher, South Bend, Ind. Klein, Durand, Mich. William E. Daily, Asst. Perry, Wayne E. Uhl, Deputy Attys. Rosenfeld, South Bend, Ind. In this case we are asked to reconsider our unanimous decision in Miller v. Civil City of South Bend, F. CODEwas unconstitutional as applied because non-obscene barroom variety nude dancing performed as entertainment is expression and, as such, is entitled to limited protection under the first amendment. That opinion was subsequently vacated based on a majority vote by the judges of this Court and we reheard oral argument en banc on January 31, The extensive substantive and procedural history of this case is adequately discussed in our vacated opinion and we need not repeat ourselves here.

See Miller, F. The underlying facts of this matter are uncontested. Plaintiff J. Plaintiff Glen Theatre, an establishment which does not serve alcoholic beverages, similarly provided nude dancing as entertainment.

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The plaintiffs, in two separate actions that were consolidated on appeal, filed suits in the district court to en the State of Indiana from enforcing its public indecency law to prevent them from presenting nude and semi-nude barroom dancing. The statute, IND.

CODEon its face provides for a total ban on nudity in public places. Violation of the statute is a Class A Misdemeanor. It broadly defines nudity as "the showing of the human male or female genitals, pubic area, or buttocks with less than opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state.

We stress from the outset the limited scope of our inquiry today. This case does not concern obscenity, as the State has conceded that the dancing involved is non-obscene. It also does not concern whether these establishments are "public places" under the statute; the plaintiffs acknowledge that they are. See State v. Baysinger, Ind. And we are not concerned with any alleged overbreadth problems; that issue has already been resolved by this Court. See Glen Theatre v. Pearson, F. Rather, the issue presented for this Court is a narrow one: whether non-obscene nude dancing of the barroom variety, performed as entertainment, is expression and thus entitled to protection under the first amendment.

In addressing the issue before us, we recognize that we are not writing on a clean slate. While yet to delineate the precise scope of the protection afforded nude dancing, the Supreme Court, along with several circuit and district courts, has repeatedly and consistently intimated that nude dancing performed as entertainment is protected activity under the first amendment. The Court first addressed the issue of first amendment protections for adult entertainment in California v.

LaRue, U. The regulations in question "provided that liquor by the drink shall not be served in places where certain grossly sexual exhibitions are performed. Reviewing the legislative history, the Court observed that the regulations were aimed at "bacchanalian revelries" that went far beyond simple nude dancing and entered the realm of obscenity. Overturning the district court's grant of the declaratory judgment, the Court held that the State was empowered under the twenty-first amendment to regulate such entertainment in establishments that serve liquor.

In so holding, the Court recognized that "some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression The Court was unanimous in agreement regarding this principle. The dissent by Justice Brennan found that the regulation "clearly applies to some speech protected by the First Amendment In a separate dissent, Justice Marshall noted evidence that the regulations may have been enacted for the "specific purpose of evading" the standards imposed on obscenity laws and that "the Government may suppress expression treating with sex only if it meets the three-pronged Roth-Memoirs [obscenity] test.

In the next case before the Court involving nude dancing, the justices strengthened their apparent recognition that the activity may be protected expression. In Doran v. Salem Inn, owners of three topless bars sought a temporary injunction against a Northhampton, New York, town ordinance which prohibited topless dancing in "[a]ny public place.

The Court, per Justice Rehnquist, declared that "[a]lthough the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized [in LaRue ] that this form of entertainment might be entitled to First and Fourteenth Amendment protection in some circumstances.

The Court upheld the grant of a preliminary injunction on the grounds that, unlike the ordinance in LaRue, the ordinance was overbroad because it applied to all commercial establishments and thus was not justifiable under the twenty-first amendment. The Court reached differing conclusions in LaRue and Doran concerning statutes regulating adult entertainment. In doing so, it drew a distinction between an establishment which serves alcohol and one which does not.

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The ordinance in LaRue was upheld because it was within the confines of the state's power under the twenty-first amendment whereas the ordinance in Doran was not. These two cases can be reconciled only on the implicit assumption that the regulated activity, topless dancing, was protected by the first amendment. Otherwise, the state's police power would be sufficient to support the statutes in both cases. This implicit assumption was made explicit in the Court's next encounter with nude dancing, Schad v.

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Ephraim, U. In Schad, the Court addressed a city zoning ordinance that prohibited all live entertainment. The defendants, operators of an adult bookstore, were convicted of violating the ordinance by offering to its customers the opportunity to view a live nude dancer. The Court overturned the convictions finding that the ordinance, by restricting all forms of live entertainment, was overbroad and thus violative of the first and fourteenth amendments. The Court began its analysis by discussing the scope of the broadly drafted city ordinance: "Here the Borough totally excludes all live entertainment, including non-obscene nude dancing that is otherwise protected by the First Amendment.

From this starting point, the Court went on to discuss the protections afforded nude dancing under the first amendment. It noted that "[n]udity alone does not place otherwise protected material outside the mantle of the first amendment. The Court went on to state that "[n]or may an entertainment program be prohibited solely because it displays the nude human figure The Court, while finding it unnecessary to define precisely the scope of the protection afforded the activity, unmistakably recognized that in some circumstances it falls within the ambit of the first amendment.

The majority's position on nude dancing in Schad was accepted by the entire Court. Chief Justice Burger, ed by Justice Rehnquist, dissented on the overbreadth issue but accepted the majority's view on nude dancing. The Chief Justice concluded that "the fact that a form of expression [nude dancing] enjoys some constitutional protection does not mean that there are not times and places inappropriate for its exercise.

Justice Stevens, in a concurring opinion, recognized that "the foliage of the First Amendment may cast protective shadows over some forms of nude dancing As a result of the Court's agreement on this issue, Schad has generally and continually been recognized by lower courts for the proposition that nude dancing is protected expression. In the Court's post-Schad decisions it has consistently re-affirmed its position in Schad that nude dancing performed as entertainment falls within the scope of the first amendment.

In Young v. Arkansas, U. In addition, in Massachusetts v. Oakes, U. FCC, U. Bellanca, U. City of Dallas, U. Various adult establishments, including several providing live nude dancing, sued for declaratory relief and a temporary as well as a permanent injunction. Six justices agreed that the ordinance violated the first amendment by establishing a licensing scheme without adequate procedural safeguards as required by Freedman v. Maryland, U. Justice O'Connor, writing for the three-member plurality, began her analysis by noting that.

Smith v. California, U. Conrad, supra [ U. Mini Theaters, Inc. Mount Ephraim, U. The plurality then concluded that "the businesses challenging the scheme have a valid First Amendment interest. With the exception of Justice Scalia in dissent, no other justice took issue with the plurality's position on nude dancing. From this reading of Supreme Court precedent, 3 we are constrained to hold today that, as a matter of law, non-obscene nude dancing performed as entertainment is expression and as such is entitled to limited protection under the first amendment.

In reaching this conclusion, we are well aware that the distinction between conduct and expression is an elusive one. We begin with a brief examination of the mode of expression involved. Dance as entertainment is one of the earliest forms of expression known to man.

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Its written history goes back at least as far as fifth century classical Greece, where Euripides described the frenzied fertility dance in his drama Bacchae. Dance also has biblical roots. See e. In ancient Rome, dancing was an important part of the annual festivals of Lupercalia and Saturnalia which featured wild group dances that were the precursors of the later European carnival.

Eroticism in dancing also has ancient origins.

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