Glen Theatre, Inc. v. Civil City of South Bend

Decision Date09 September 1988
Docket NumberCiv. No. S 85-353,S 85-598 and S 85-722.
Citation695 F. Supp. 414
PartiesGLEN THEATRE, INC., an Indiana Corporation; Gayle Ann Marie Sutro; and Carla Johnson, Plaintiffs, v. CIVIL CITY OF SOUTH BEND; Charles Hurley, Chief of Police of the South Bend Police Department; Michael P. Barnes, Prosecutor of the County of St. Joseph, Indiana; and Linley Pearson, Attorney General of the State of Indiana, Defendants. Darlene MILLER; and Jr.'s Kitty Kat Lounge, Inc., an Indiana Corporation, Plaintiffs, v. CIVIL CITY OF SOUTH BEND; Indiana Alcoholic Beverage Commission; Charles Hurley, Chief of Police of the South Bend Police Department; Michael P. Barnes, Prosecutor of the County of St. Joseph, Indiana; and Linley Pearson, Attorney General of the State of Indiana, Defendants. Sandy DIAMOND; Lynn Jacobs; 720 Corporation, an Indiana Corporation, and 726 Corporation, an Indiana Corporation, Plaintiffs, v. CIVIL CITY OF SOUTH BEND; Charles Hurley, Chief of Police of the South Bend Police Department; Michael P. Barnes, Prosecutor of the County of St. Joseph, Indiana; Linley Pearson, Attorney General of the State of Indiana; and Indiana Alcoholic Beverage Commission, Defendants.
CourtU.S. District Court — Northern District of Indiana

Charles A. Asher, South Bend, Ind., Lee J. Klein, Durand, Mich., for Glen Theatre, Inc., et al.

Charles A. Asher, South Bend, Ind., for Darlene Miller, et al.

James F. Korpal, South Bend, Ind., for Sandy Diamond, et al.

Robert C. Rosenfeld, South Bend, Ind., William Daily, Chief Counsel, Indianapolis, Ind., for Civil City of South Bend, et al.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

This case is before the court on remand from the Seventh Circuit Court of Appeals. In a Memorandum and Order signed by this Judge on July 26, 1985, defendants were preliminarily enjoined from arresting or prosecuting or threatening to arrest or prosecute plaintiffs. On October 10, 1985, a permanent injunction was issued. The injunction was appealed and on September 30, 1986, the Seventh Circuit, speaking through Chief Judge Cummings, reversed this court's order and remanded the matter. Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (7th Cir.1986). This court consolidated the Glen Theatre case with Miller v. City of South Bend, Cause Number S 85-598, and Diamond v. City of South Bend, Cause Number S 85-722. A hearing was held in open court on January 11, 1988. At that time this Judge set deadlines for filing briefs and proposed findings of fact and conclusions of law by all parties. Those briefs have since been filed and oral argument was heard on July 15, 1988, at which time this court took the matter under advisement. It is now prepared to render its decision in this case.

I. Findings of Fact

This court adopts the findings of facts as set forth in its Memorandum and Order in the Glen Theatre action, which was dated July 26, 1985. The relevant portion of that Memorandum and Order is attached hereto as Appendix "A".

This court also adopts the statement of facts set forth by Judge Robert L. Miller, Jr. in his Memorandum and Order in the Miller case, Cause Number S 85-598, dated May 5, 1986. The relevant portion of that Memorandum and Order is attached hereto as Appendix "B".

Finally, this court adopts the fact findings as stated by Judge Miller in his Memorandum and Order in the Diamond case, Cause Number S 85-722, dated May 5, 1986. The relevant portion of that Memorandum and Order is attached hereto as Appendix "C".

II. Conclusions of Law

The concept of the "law of the case" has specific application here. An inferior court must apply the decision of a superior appellate court. United States of America v. City of Chicago, 853 F.2d 572, 576 (7th Cir.1988). The decision of the Seventh Circuit Court of Appeals in this case has at least two salient features. First, it specifically cited with approval the decision of the Supreme Court of Indiana in State of Indiana v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979). Secondly, it reversed this court's decision which had been based on First Amendment considerations. The composite effect of the decision of the Court of Appeals in this case is to create narrow constraints for this court's present decisional process. The Seventh Circuit mandate, which was spelled out at the end of the opinion was instructive:

The district court should examine the plaintiffs' proffered evidence of the dancing they wish to perform and decide, whether if considered as a whole, the activity should be afforded First Amendment protection.

In the preceding paragraph of the opinion, the court said:

Plaintiffs are free to pursue their argument in district court that the nude dancing they wish to perform is expressive activity protected by the First Amendment and outside the reach of the public nudity statute as construed by Baysinger.

As this court understands these words, the type of dancing performed by these particular plaintiffs should be scrutinized by this Judge, who must then decide whether such activity is protected under the First Amendment. The plaintiffs in Cause Numbers S 85-722 and S 85-598 submitted a videotape as evidence of the type of dancing they wish to perform.1 Plaintiffs in Cause Number S 85-353 apparently also incorporated that video tape as evidence of the dancing they wanted to perform. See "Supplemental Brief of Plaintiffs Darlene Miller and Jr.'s Kitty Kat Lounge, Inc." at page 3 ("The parties have agreed to incorporate proof offered by them at the hearings of March 11, 1986 as part of the record of this case."). It should be noted at this point that plaintiffs' counsel conceded in open court on July 15, 1988, that the Glenn Theatre, formerly located at 500 West Chippewa Avenue, was very recently destroyed by fire. Therefore, the cause of action has become moot as to that plaintiff. See, DeFunis v. Odegaard, 416 U.S. 312, 94 S.Ct. 1704, 40 L.Ed. 2d 164 (1974).

This court has viewed the entire videotape which was entered into evidence. The tape consists of four separate performances. The performances are basically identical. They consist of a female, fully clothed initially, who dances to one or more songs as she proceeds to remove her clothing. Each dance ends with the dancer totally nude or nearly nude. The dances are done on a stage or on a bar and are not a part of any type of play or dramatic performance. They are simply what are commonly referred to as "striptease" acts. This court must determine whether such acts are protected by the First Amendment.

This court is writing on anything but a clean slate. Many courts in this state, and most other states, have addressed the subject of public nudity in a First Amendment context. Three basic premises are universally accepted. First, clearly all nudity is not obscene. Erznoznik v. City of Jacksonville, 422 U.S. 205, 213, 95 S.Ct. 2268, 2274-2275, 45 L.Ed.2d 125 (1975). Second, nudity which is obscene is not protected. Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Roth v. United States, 354 U.S. 476, 484-485, 77 S.Ct. 1304, 1308-1309, 1 L.Ed.2d 1498 (1957); American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323, 324 (7th Cir.1985). Third, some forms of nude dancing are clearly protected. Schad v. Mt. Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) ("nude dancing is not without its First Amendment protections from official regulations.")2 Apart from those premises, however, the decisions throughout the country, although not always entirely clear, have been moving in the general direction of finding particular instances of nude dancing constitutionally protected. See, e.g., International Food & Beverage Systems v. Fort Lauderdale, 794 F.2d 1520, 1525 (11th Cir.1986) (Nude dancing constitutionally protected expression, at least if performed indoors before pay customers); BSA, Inc. v. King County, 804 F.2d 1104, 1107 (9th Cir.1986) (Barroom nude dancing can be expressive activity entitled to First Amendment protection and nudity alone is not sufficient to make that dancing legally obscene); Birkenshaw v. Haley, 409 F.Supp. 13, 18 (E.D.Mich.1974) (Not all forms of nude or semi-nude behavior are embodied with sufficient communicative content to warrant the protection of the First Amendment.). See also, Been, Erhardt v. State: Nude Dancing Stripped of First Amendment Protection, 19 Ind.L. Rev. 1 (1986), in which the author concludes that Indiana's Public Indecency Statute encroaches upon legitimate expression involving public nudity and cites this court's original opinion finding the statute unconstitutionally overbroad as support for his contention that "professional dancers may seek protection for their communication in a federal forum where the law may be more sensitively applied and where first amendment rights may be zealously guarded." Id. at 15.

This court is required to apply Indiana law to the facts of this case. It is also required to follow precedent set by the Seventh Circuit and to follow the "law of the case."3 The law in Indiana was set forth clearly in two Supreme Court of Indiana cases, State of Indiana v. Baysinger, 397 N.E.2d 580 (Ind.1980) and Erhardt v. State, 468 N.E.2d 224 (Ind.1984). The Erhardt case involved the same statute with which this court is dealing, I.C. § 35-45-4-1. Ruth Erhardt entered a contest to be named "Miss Erotica of Fort Wayne" which was held at the Cinema Blue Theatre on February 25, 1982. The contest included a dance competition at which Erhardt danced to two songs. During the first, she wore a short negligee and panties. For the second number, she stripped down to nothing but a g-string and scotch tape criss-crossed over her nipples. She was arrested for public indecency. Erhardt v. State, 463 N.E.2d 1121, 1122 (Ind. App. 4 Dist.1984), rev'd 468 N.E.2d 224 (Ind.1984). The Indiana appellate court held that the dancing was protected by the First Amendment and that Erhardt could not be convicted of...

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4 cases
  • Barnes v. Glen Theatre, Inc
    • United States
    • U.S. Supreme Court
    • June 21, 1991
    ...protected by the Constitution of the United States," and rendered judgment in favor of the defendants. Glen Theatre, Inc. v. Civil City of South Bend, 695 F.Supp. 414, 419 (ND Ind.1988). The case was again appealed to the Seventh Circuit, and a panel of that court reversed the District Cour......
  • Miller v. Civil City of South Bend
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 24, 1990
    ...judge did in this case that a striptease dance is not "expressive activity," but "mere conduct," Glen Theatre, Inc. v. Civil City of South Bend, 695 F.Supp. 414, 419 (N.D.Ind.1988), is indefensible and a threat to artistic freedom. This is not to suggest that the State of Indiana has no pow......
  • Miller v. Civil City of South Bend
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • January 8, 1990
    ...and substantively. The facts of the cases are presented in detail in the district court's opinion on remand, Glen Theatre v. Civil City of South Bend, 695 F.Supp. 414 (N.D.Ind.1988), and in our opinion remanding the Glen Theatre matter, Glen Theatre v. Pearson, 802 F.2d 287 (7th Cir.1987). ......
  • Triplett Grille, Inc. v. City of Akron
    • United States
    • U.S. District Court — Northern District of Ohio
    • March 17, 1993
    ...involved. 397 N.E.2d at 587.5 On remand, the statute, as applied, was struck down by the District Court. Glen Theatre, Inc. v. Civil City of South Bend, 695 F.Supp. 414 (N.D.Ind.1988). The Seventh Circuit ultimately agreed with the District Court. Miller v. Civil City of South Bend, 904 F.2......

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