Glen Theatre, Inc. v. Pearson

Citation802 F.2d 287
Decision Date30 September 1986
Docket NumberNo. 85-3029,85-3029
PartiesGLEN THEATRE, INC., an Indiana Corp.; Gayle Ann Marie Sutro and Carla Johnson, Plaintiffs-Appellees, v. Linley E. PEARSON, Attorney General of Indiana, and Michael P. Barnes, Defendants-Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

William E. Daily, Asst. Atty. Gen., Indianapolis, Ind., for defendants-appellants.

Charles A. Asher, Lysohir, Singer & Asher, South Bend, Ind., for plaintiffs-appellees.

Before CUMMINGS, Chief Judge, EASTERBROOK, Circuit Judge, and NOLAND, Chief District Judge. *

CUMMINGS, Chief Judge.

This appeal calls into question the validity of Indiana's public nudity statute, Indiana Code Sec. 35-45-4-1. The plaintiffs protest that the breadth of the statute chills their First Amendment right of free speech. The district court agreed and permanently enjoined defendants from enforcing the statute. Because the Indiana Supreme Court has interpreted the statute to protect First Amendment expression, we reverse and remand.

Statement of the Case and Facts

Plaintiffs filed suit seeking to enjoin the State of Indiana from enforcing its public indecency law 1 against them for nude entertainment. The plaintiffs include Glen Theatre, a business that wants to provide nude entertainment to its customers, and two performers, Gayle Ann Marie Sutro and Carla Johnson. On July 26, 1985, after finding the statute facially unconstitutional for over-breadth, the district court entered a preliminary injunction prohibiting the defendants from arresting and prosecuting the plaintiffs under Indiana Code Sec. 35-45-4-1(a)(3). On October 10, 1985, the district court entered a permanent injunction. The defendants appeal from the district court's order. We have jurisdiction under 28 U.S.C. Sec. 1292(a).

Plaintiff Glen Theatre is an Indiana corporation that owns an adult entertainment business called the Chippewa Bookstore. The Bookstore provides adult books and magazines, movie showings, and live entertainment. The live entertainment consists of nude and semi-nude performances through glass panels. By inserting coins into a timing mechanism the customers are permitted to observe the nude dancers. No alcoholic beverages are sold, consumed, or allowed on the Bookstore premises. Approximately eleven individuals have been arrested at the Bookstore for violations of Indiana Code Sec. 35-45-4-1(a)(3) (appearing in a state of nudity). Plaintiffs Gayle Ann Marie Sutro and Carla Johnson are both performers scheduled to dance nude at the Bookstore. These performances have been discontinued for fear of prosecution.

Defendants raise only one argument on appeal. They claim that the district court erred in ruling that Indiana's public indecency statute is constitutionally infirm as over-broad. Defendants argue that the Indiana Supreme Court adequately narrowed the statute through judicial construction. We agree with defendants and therefore reverse the permanent injunction order and remand for consideration whether the First Amendment permits plaintiffs' activities.

Discussion

Our analysis begins with State v. Baysinger, 397 N.E.2d 580 (Ind.1979), appeals dismissed sub nom. Clark v. State, 446 U.S. 931, 100 S.Ct. 2146, 64 L.Ed.2d 783 and Dove v. State, 449 U.S. 806, 101 S.Ct. 52, 66 L.Ed.2d 10, which upheld the constitutionality of Indiana Code Sec. 35-45-4-1. Defendants first claim that the summary dismissals by the Supreme Court are binding precedent. Plaintiffs counter that the later Supreme Court decision of Schad v. Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671, reflects a subsequent change in the law under which we should review the Baysinger decision.

In Hicks v. Miranda, 422 U.S. 332, 343-345, 95 S.Ct. 2281, 2288-2290, 45 L.Ed.2d 223, the Supreme Court held that a dismissal "for want of a substantial federal question" is a decision on the merits. Lower courts are bound until subsequent Supreme Court decisions indicate otherwise. Id.; Muench v. Israel, 715 F.2d 1124, 1139 (7th Cir.1983). Although it is clear that lower courts are bound by summary actions on the merits, "[a]scertaining the reach and content of summary actions may itself present issues of real substance." Mandel v. Bradley, 432 U.S. 173, 176, 97 S.Ct. 2238, 2240, 53 L.Ed.2d 199 (quoting Hicks, 422 U.S. at 345 n. 14, 95 S.Ct. at 2290 n. 14).

A dismissal for want of a substantial federal question is an affirmance of the judgment only, not the rationale of the opinion below. Mandel, 432 U.S. at 176, 97 S.Ct. at 2238. Such a summary dismissal rejects only the specific challenges presented in the statement of jurisdiction filed with the Supreme Court. Thus lower courts are prevented from coming to opposite conclusions on the precise issues presented and necessarily decided by those actions. Id. If the facts, issues, or law is different, then there is reason not to follow the summary action. Id. at 180, 97 S.Ct. at 2242 ("In other words, after today, 'appropriate but not necessarily conclusive, weight' is to be given this court's summary dispositions."). Thus if the jurisdictional statements in the Baysinger appeals raise the issue of overbreadth and it was necessarily decided, we must follow the Supreme Court's affirmance.

The Baysinger decision comprised three consolidated appeals from Indiana trial courts overturning the public nudity statute. The Indiana Supreme Court reached two issues in its opinion: (1) whether the term "public place" was vague and (2) whether the statute was overbroad. Because the case before us does not raise the vagueness argument, we need discuss only the overbreadth issue.

The Baysinger court held that nudity must be allowed when it is part of some larger form of expression that merits First Amendment protection. 397 N.E.2d at 587. So construed, it held that the statute was constitutional. The court went on to reject the argument that nude dancing is protected by the First Amendment, reasoning that the activity was simply conduct. Id.

Two of the consolidated cases were appealed separately to the Supreme Court of the United States. Both cases were summarily dismissed for want of a substantial federal question. Clark v. State, 446 U.S. 931, 100 S.Ct. 2146, 64 L.Ed.2d 783, and Dove v. State, 449 U.S. 806, 101 S.Ct. 52, 66 L.Ed.2d 10. The jurisdictional statements in each case are as follows:

Clark v. State

1. Is that portion of the Indiana Code, Section 35-45-4-1, specifically (a)(3), which prohibits a female from appearing nude "in a public place" in conflict with the free speech clause of the First Amendment to the Constitution of the United States as applied to the States by the Fourteenth Amendment for the reason that the statute is overbroad on its face?

2. Does the Appellant Sue Clark have the necessary standing to raise an overbreadth challenge to the constitutionality of Indiana Code 35-45-4-1(a)(3)?

Dove v. State

1. Is Indiana Code, Section 35-45-4-1(a)(3), which prohibits a female from appearing nude "in a public place" in conflict with the First Amendment to the Constitution of the United States as applied to the States by the Fourteenth Amendment for the reason that the statute is overbroad on its face?

2. Is Indiana Code, Section 35-45-4-1(a)(3) & (b) in conflict with the First and Fourteenth Amendments of the Constitution of the United States in that said statute is vague?

3. Do the Appellants have the necessary standing to raise an overbreadth challenge to the constitutionality of Indiana Code 35-45-4-1(a)(3) and (b)?

Both statements of jurisdiction raise the issue of overbreadth. Thus the Supreme Court's summary dismissal is a ruling that the Indiana statute, as interpreted in Baysinger, is constitutional in the face of an overbreadth attack. 2 And as construed by the Indiana Supreme Court the statute prohibits all nudity in public places unless coupled with other expressive activity protected by the First Amendment.

But plaintiffs argue that Schad v. Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671, decided after the Baysinger appeals were dismissed, has changed the applicable law. In Schad the Supreme Court invalidated a zoning ordinance that prohibited all live entertainment. The defendants in Schad operated an adult bookstore that offered to its customers the opportunity to view a live nude dancer and were convicted of violating the zoning ordinance. The Court held that the ordinance, by restricting all forms of live entertainment, was overbroad and violated the First and Fourteenth Amendments. Id. at 65-67, 101 S.Ct. at 2180-2182. In so holding, the Court noted that "[e]ntertainment as well as political and ideological speech is protected by the First Amendment." Id. at 65, 101 S.Ct. at 2180. The Court then discussed the implications of nudity in entertainment and stated: "Nor may an entertainment program be prohibited solely because it displays the nude human figure.... Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulations." Id. at 66, 101 S.Ct. at 2181 (citing Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648; Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448; California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342).

Although the Schad Court did not decide the extent and scope of protections to be afforded nude dancing, see New York St. Liquor Authority v. Bellanca, 452 U.S. 714, 719, 101 S.Ct. 2599, 69 L.Ed. 357 (Stevens, J., dissenting), it clearly held that the activity had roots in the First Amendment. 452 U.S. at 66, 101 S.Ct. at 2181. Therefore, the language of the opinion certainly calls into question the Indiana Supreme Court's holding in Baysinger that nude dancing was merely conduct and as such was not entitled to First Amendment protection. However, Schad does not disturb the Baysinger overbreadth holding. Schad...

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11 cases
  • Barnes v. Glen Theatre, Inc
    • United States
    • U.S. Supreme Court
    • June 21, 1991
    ...the plaintiffs to pursue their claim that the statute violated the First Amendment as applied to their dancing. Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 288-290 (1986). On remand, the District Court concluded that "the type of dancing these plaintiffs wish to perform is not expressive a......
  • Miller v. Civil City of South Bend
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 24, 1990
    ...we are not concerned with any alleged overbreadth problems; that issue has already been resolved by this Court. See Glen Theatre v. Pearson, 802 F.2d 287 (7th Cir.1987). Rather, the issue presented for this Court is a narrow one: whether non-obscene nude dancing of the barroom variety, perf......
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    • United States
    • U.S. District Court — Northern District of Indiana
    • August 21, 1987
    ...permanent injunction which this judge entered prohibiting enforcement of Indiana's public indecency statutes. See, Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (7th Cir.1986). The plaintiffs argue that Glen Theatre is distinguishable because "Naked City", an approximately 360 acre area which......
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    • United States
    • Virginia Court of Appeals
    • February 24, 2004
    ...statute only to activities involving pure conduct containing no constitutionally protected expressive element); Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 289 (7th Cir.1986) (basing its rejection of the plaintiff's overbreadth claim on the limiting construction provided by 10. See Erie, 5......
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