Should Nude Dancing Be Constitutionally Protected First Amendment Speech? Why Justice Scalia Is Right In Barnes v. Glenn Theatre (1991)

I believe that Justice Antonin Scalia has a better argument in the 1991 Supreme Court case of Barnes v. Glenn Theatre than the plurality or dissenting opinion. The first reason I find his argument most compelling is that it seems to recognize the fundamental point that the law in question which bans nude dancing in public within a law that more generally proscribes other sexual public behavior is simply “regulating conduct and not specifically directed at expression,” and therefore “it is not subject to First Amendment scrutiny at all.”

Should nude dancing be considered "conduct" or "speech"? In response to this question the dissenting opinion of Justice Byron White waxes poetic about dancing generally. He writes that “inherently” dancing “is the communication of emotion or ideas.” Does anyone really believe that dancing is "inherently" always about "emotion or ideas"? The dissent goes on to quote Aristotle on dancing. The dissent also quotes French poet Stéphane Mallarmé who declared that the dancer is “writing with her body.” I suppose you should with this logic extend the First Amendment to all conduct anywhere, because all that is needed is that you make sure to call it “writing with the body” first. The rhetoric is absurd in that it has no connection to a statute which is specifically being applied to nude dancing. The dancers are not “writing” with their bodies at all, they are providing sexually-based stimulating entertainment. It is not speech even in the broader sense as no idea or emotion is being expressed at all, it is dancing of a purely prurient appeal. If this sort of dancing is about expressing some sort of message or idea, what is that message? The dissent says it is an “erotic message,” but this just seems like replacing the word “entertainment” with “message.” I am not sure it adds any substance to the conduct to make it more about conveying a “message.” I do not remain convinced that at its core nude dancing is about conveying any sort of message at all. It should not be protected as "speech" or as an expressive "erotic message" by the First Amendment, and it should be up to the determination of local legislatures or municipalities to determine the local policy on the "conduct" that is nude dancing.

Admittedly, the dissent’s best point is that the dancing in this case is really not public at all as the law was being used against a club that featured nude dancing. In other words, it was private nude dancing “since the viewers are exclusively consenting adults who pay money to see these dances.” Also, the application of the law in practice is not consistent, as if to pretend that the “message would be muted if the dancers wore pasties and G-strings.” The dissent does make good points along such lines, but the better ones seem to be points about application of this public nudity statute to nude strip clubs as a matter of public policy rather than addressing the underlying question of whether nude dancing in public is protected by the First Amendment's guarantee of free speech. It still seems to me that the more basic point is whether this is truly “speech” within the First Amendment. It is the answer to this question that is the far more important one. And it is concerning this question that Scalia reaches the same conclusion as the plurality opinion of Justice William Rehnquist, while being more honest and direct about how and why he is reaching that conclusion.

He also does not try to argue by adopting the particular language of the "level of scrutiny." In fact he expressly counters that “I think we should avoid wherever possible, moreover, a method of analysis that requires judicial assessment of the ‘importance’ of government interests-and especially of government interests in various aspects of morality.” I think this is a fairly good point as well, and it is another important reason to find his opinion convincing. Tweet