Miller v. Civil City of South Bend
| Decision Date | 08 January 1990 |
| Docket Number | Nos. 88-3006,s. 88-3006 |
| Citation | 887 F.2d 826 |
| Parties | Darlene MILLER and Jr's Kitty Kat Lounge, Inc., an Indiana Corporation; and Glen Theatre, Inc., an Indiana Corporation, Gayle Sutro, and Carla Johnson, Plaintiffs-Appellants, v. CIVIL CITY OF SOUTH BEND; Indiana Alcoholic Beverage Commission; Charley 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-Appellees. & 88-3244. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Charles A. Asher, South Bend, Ind., Lee J. Klein, Durand, Mich., for plaintiffs-appellants.
William E. Daily, Wayne E. Uhl, Asst. Attys. Gen. of Ind., Indianapolis, Ind., Arthur T. Perry, Deputy Atty. Gen., Office of the Atty. Gen., Indianapolis, for defendants-appellees.
Before WOOD, Jr., COFFEY, and FLAUM, Circuit Judges.
These consolidated appeals present the narrow issue of whether non-obscene nude dancing, performed before an audience as entertainment, is expressive activity and therefore entitled to protection, albeit limited protection, under the first amendment. For the reasons stated herein, we hold that it is.
This matter is before us for the second time and has a somewhat complicated history, both procedurally 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). Therefore, we will present a very abbreviated description of the parties and the underlying facts and devote our energy to explaining the pertinent substantive and procedural background.
In 1985, Appellants Glen Theatre, Gayle Sutro, and Carla Johnson filed an action in district court to enjoin the State of Indiana from enforcing its public indecency law against them for presenting nude and semi-nude dancing at an adult entertainment establishment. Sutro and Johnson are dancers at such an establishment owned by Glen Theatre. The statute, on its face, provides for a total ban on nudity in public places. 1 The district court granted the injunction, finding that the statute was facially overbroad.
On the first appeal to this court, we examined the Indiana Supreme Court's decision in State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979), appeals dismissed sub nom. Clark v. State, 446 U.S. 931, 100 S.Ct. 2146, 64 L.Ed.2d 783 (1979), and Dove v. State, 449 U.S. 806, 101 S.Ct. 52, 66 L.Ed.2d 10 (1980), in which the court had upheld the statute against an overbreadth attack. Essentially, the Baysinger court held that Indiana's public indecency statute could be applied to mere conduct but could not be constitutionally applied to expressive activity. Construing the statute to prohibit only non-expressive nudity, the Indiana Supreme Court held that the statute was not overbroad. The court went on, however, to hold that nude dancing of the barroom or striptease variety was mere conduct and thus could be prohibited under the statute.
In reviewing the Glen Theater case, we determined that the United States Supreme Court's dismissal of the appeals from Baysinger for want of a substantial federal question was binding precedent on the overbreadth issue. We found, however, that the jurisdictional statement presented to the Supreme Court did not include the issue of application, i.e., Baysinger's holding that barroom/striptease dancing is not expressive activity, only mere conduct. We therefore reversed the district court's overbreadth ruling as controlled by Baysinger, and, because the district court had not addressed the question of application, remanded the case for a determination of whether the statute could be constitutionally applied to plaintiffs' activity.
In Glen Theater we discussed the relevant case law to assist the district court on remand. While we recognized that the Supreme Court has not directly confronted the issue and, therefore, has not explicitly held that nude dancing is expressive activity protected by the first amendment, we reviewed the Supreme Court's decision in Schad v. Mt. Ephraim, 2 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). Glen Theatre, 802 F.2d at 290 (citations omitted). To place the overbreadth issue in context, we continued:
However, Schad does not disturb the Baysinger overbreadth holding. Schad is consistent with Baysinger's decision that nudity needs to be combined with some sort of expressive activity before it falls within First Amendment protection. "[N]udity alone does not place otherwise protected material outside the mantle of the First Amendment."
Id. (citations omitted). See New York State Liquor Authority v. Bellanca, 452 U.S. 714, 718-19, 101 S.Ct. 2599, 2601-02, 69 L.Ed.2d 357 (1981) (Stevens, J., dissenting); Young v. Arkansas, 474 U.S. 1070, 1071-72, 106 S.Ct. 830, 831-32, 88 L.Ed.2d 801 (1986), (White, J., dissenting from denial of certiorari) (recognizing the Court's "repeated indications that barroom-type nude dancing is a type of expression that is protected under the First Amendment" and urging an explicit holding to that effect); Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975) ().
We further pointed out that several circuits have held that nude and semi-nude barroom dancing as well as other forms of nude entertainment are entitled to first amendment protection.
For example, the Eleventh Circuit ... citing Schad ... stated, '[w]e may take it for granted that nude dancing is constitutionally protected expression, at least if performed indoors before pay[ing] customers and not ... casual viewers.' International Food & Beverage Systems v. Fort Lauderdale, 794 F.2d 1520, 1525 (1986). Earlier in Krueger v. Pensacola, 759 F.2d 851, 854 (1985), the Eleventh Circuit had recognized that topless dancing was a form of expression protected by the First Amendment. The Krueger court noted that the Supreme Court has consistently evaluated any potential artistic or communicative activity (including topless dancing) under First Amendment standards. Id. at 854 & n. 4 ... see also KEV, Inc. v. Kitsap County, 793 F.2d 1053 (9th Cir.1986) (); Avalon Cinema Corp. v. Thompson, 658 F.2d 555 (8th Cir.1981); Williams v. Kleppe, 539 F.2d 803 (1st Cir.1976); Chapin v. Southampton, 457 F.Supp. 1170, 1174 (E.D.N.Y.1978).
Glen Theatre, 802 F.2d at 290-91.
Having thus laid the groundwork for the district court, we remanded the case with instructions to "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." On remand, the district court consolidated the Glen Theatre matter with the Miller action and a third pending case. The latter two suits were brought by plaintiffs seeking to present nude and semi-nude dancing at their lounges. Darlene Miller is a dancer at the "Kitty Kat" lounge.
After reviewing a videotape of the plaintiffs' proposed dancing, 3 the district court, apparently taking our instruction to require a determination as to the degree of expression embodied in a particular dance routine, held that because "these strip tease dances are not performed in any theatrical or dramatic context," the dancing was not expressive activity and therefore was without first amendment protection. The plaintiffs in Glen Theatre and Miller appealed.
When a court grapples with a delicate and emotionally charged issue, sometimes, unavoidably, an unintended ambiguity may find its way into an opinion. A careful reading of the opinion, however, ordinarily will clarify any question. In this case, although we might have been more precise in our instruction on remand and substituted the words "activity they wish to engage in" for "dancing they wish to perform," on the whole we believe our guidelines were misread. As we explained in Glen Theatre, the case law points to the conclusion that non-obscene nude dancing as entertainment is a form of expression entitled to limited first amendment protection. Given the posture of the case, however, we thought it appropriate that the district court make the initial determination of whether the State of Indiana was, in fact, seeking to enforce its statute to prohibit nude dancing as entertainment, and thus limit plaintiffs expression. We did not intend for the district court to make a qualitative judgment as to the aesthetic appeal or artistic merit of a particular dance routine.
We believe that the district court's construction of whether the statute's application violates the plaintiffs' free speech rights was clearly erroneous. It was established on remand (and conceded by the State at oral argument) that the plaintiffs wished to present non-obscene nude dancing of the barroom/striptease variety. As the Second Circuit has stated:
[W]hile the entertainment afforded by a nude ballet at Lincoln Center...
To continue reading
Request your trial
-
Barnes v. Glen Theatre, Inc
...Court, holding that the nude dancing involved here was expressive conduct protected by the First Amendment. Miller v. Civil City of South Bend, 887 F.2d 826 (CA7 1989). The Court of Appeals then heard the case en banc, and the court rendered a series of comprehensive and thoughtful opinions......
-
Miller v. Civil City of South Bend
...and procedural history of this case is adequately discussed in our vacated opinion and we need not repeat ourselves here. See Miller, 887 F.2d at 829. The underlying facts of this matter are uncontested. Plaintiff J.R.'s Kitty Kat Lounge is a drinking establishment located in the City of So......