Miller v. Civil City of South Bend

MANION, Circuit Judge, with whom COFFEY and EASTERBROOK, Circuit Judges, join, dissenting.

Today this court holds that “freedom of speech” protects public, nonverbal, nude dancing that communicates no ideas and is considered harmful. Not surprisingly, in their briefs and at oral argument the parties never discussed the text of the First Amendment. Perhaps this is because everyone knows that “Congress shall make no law ... abridging the freedom of speech”; more likely, it is because reference to the text is a stark reminder of how far First Amendment jurisprudence has gone astray.

Miller should not prevail for two reasons. First, the district court found that the nude dancing at issue contained no “expressive activity.” At oral argument Miller’s attorney admitted that this dancing communicated no idea or message. The district court’s finding was not clearly erroneous, and we should affirm on that basis.1

Second, assuming for the sake of argument that striptease contains an expressive element, this statute is valid because the state interest in preventing public nudity— an interest unrelated to the suppression of speech — outweighs whatever expressive elements are contained in a striptease. The *1132majority, by its emphasis on dance, disregards the fact that the challenged statute is not directed at dance but at public indecency, including “appearing] in a state of nudity” in a public place. Public nudity is conduct, and is prohibited in every state. Striptease dancers who remove all their clothing become nude in public, and their conduct violates the statute.2 The Supreme Court has upheld other content-neutral regulations even though the speech in those cases was much closer to the core of First Amendment protected activity than nude dancing. See U.S. v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) (political protest to the military draft); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (political protest relating to homelessness). Here the state’s valid interest in preserving public morality justifies this statute despite its incidental impact on the “limited” First Amendment interests the majority believes are inherent in nude dancing. Majority op. at 1085.

The majority finds expression that not even Miller’s counsel much less the district court could find. Majority op. at 1087. Although we must not ignore original meaning when applying constitutional provisions, we nevertheless cannot turn back the evolutionary clock, powered by case-law, that has enlarged the circle of protection of the First Amendment. But we still should consider original meaning if we are to avoid enlarging this circle even more.

In his concurrence, Judge Posner suggests that “original understanding as a guide to constitutional interpretation” changes the Constitution from a “living document” into a “petrified reminder of the limits of human foresight.” Concurring op. at 1095. Fortunately, with great foresight the framers of the Constitution enacted Article V, which allows adequate “life support” through the amendment process. It takes little foresight to realize that three-fourths of state legislatures would not ratify a Twenty-seventh Amendment that stated “the right of citizens of the United States to entertain by dancing nude in public shall not be denied or abridged by the United States or by any state.” It is a much simpler process for a handful of judges to protect nude dancing as entertainment by calling it speech.

Nothing in the Constitution prohibits public nudity. Modern legislatures make those decisions in response to the desires of the people. The Constitution grants broad power to legislatures in part because they are best able to respond to changing times and social mores. Legislatures are always free to create new liberties by repealing outdated legislation or passing new laws, and the Constitution has nothing to say about it.

Judge Posner observes that in 1990 America “the project of stamping out nude striptease dancing is quixotic. The power of government is relative to the desires and values of its people. The State of Indiana cannot take the erotic edge off American culture. I doubt that it is even trying to do so.” Concurring op. at 1104. It should be apparent that the elected representatives of the people of Indiana are much better *1133suited to determining “the desires and values” of their people than those of us who sit on this court. We must assume that if Indiana did not believe nude dancing was a problem, its public nudity statute would be repealed, or at least not used against nude barroom dancing.

This court’s decision stands only for the proposition that we know better than the people of Indiana. Nude dancing ought to be legal, therefore it must be protected by the Constitution. At least Judge Posner’s concurrence is straightforward:

Censorship of erotica is pretty ridiculous too. What kind of people make a career of checking to see whether the covering of a woman’s nipples is fully opaque, as the statute requires? ... Many of us do not admire busybodies who want to bring the force of law down on the heads of adults whose harmless private pleasures the busybodies find revolting.

Concurring op. at 1100. While that may be true, legislative busybodies can be tossed out of office at the next election. We judges have lifetime insulation from such harsh realities. But since the question is raised, what power does a state have to regulate public morals: what motivates these “busybodies”? Perhaps we should begin where Judge Posner left off — “the power of government is relative to the desires and values of its people.” Concurring op. at 1104.

Even when First Amendment interests are present the Supreme Court always has recognized the authority of the state to legislate in the interest of protecting community morals. And “as the mode of expression moves from the printed page to the commission of public acts that may themselves violate valid penal statutes, the scope of permissible state regulations significantly increases.” California v. LaRue, 409 U.S. 109, 117, 93 S.Ct. 390, 396, 34 L.Ed.2d 342 (1972).

In Chaplinsky v. New Hampshire, 316 U.S. 568, 572, 62 S.Ct. 766, 769, 86 L.Ed. 1031 (1942), when discussing the use of “fighting words,” the Court held that some “utterances are no essential part of any exposition of ideas, and are of such slight, social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” In the obscenity context, Chief Justice Warren wrote of “the right of the Nation and of the States to maintain a decent society ...” versus “the right of individuals to express themselves freely.” Jacobellis v. Ohio, 378 U.S. 184, 199, 84 S.Ct. 1676, 1684, 12 L.Ed.2d 793 (1964) (Warren, Ch.J., dissenting); Justice Brennan in Roth v. United States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1308, 1 L.Ed.2d 1498 (1957) and Chief Justice Burger in Paris Adult Theatre v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (1973), “implicitly accepted that a legislature could legitimately act ... to protect ‘the social interest in order and morality.’ ” Paris Adult Theatre, id., citing Chaplinsky. The Paris Court went on to cite a statement of Justice Holmes, made in a different context:

[T]he proper course is to recognize that a state Legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain.

413 U.S. at 61, n. 11, 93 S.Ct. at 2637, n. 11, quoting Tyson & Brother v. Banton, 273 U.S. 418, 47 S.Ct. 426, 71 L.Ed. 718 (1927) (Holmes, J., dissenting).

Even if interest in public morality — concern for the moral welfare of dancers and patrons — were the only reason for this statute to be applied to nude dancing, that would be sufficient.3 Certainly legislatures and prosecutors are entitled to consider the effect viewing striptease dances *1134might have on the moral behavior of patrons,4 including the potential for damaging marriages and breaking up families by fueling the desire for adultery.5 In Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986), the plaintiff challenged Georgia's prohibition of sodomy in part because there was no basis for the law

other than the presumed belief of a majority of the electorate in Georgia that homosexual sodomy is immoral and unacceptable. This is said to be an inadequate rationale to support the law. The law, however, is constantly based on notions of morality, and if all laws representing essentially moral choices are to be invalidated under the Due Process Clause, the courts will be very busy indeed.

But there is more here than a concern for the morals of patrons who merely view nude dancing. In California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), the Supreme Court upheld a prohibition on nude dancing in bars based on the regulatory powers granted states by the Twenty-first Amendment.6 Here in Miller, the district court reviewed a videotape of Darlene Miller dancing nude — no customers were present, no one was being “entertained.” LaRue takes us out of the abstract and into the real world where valid reasons for restricting certain conduct become obvious. Chief Justice Rehnquist described in rather graphic fashion the state’s reason for prohibiting nude dancing in bars:

Customers were found engaging in oral copulation with women entertainers; eus-tomers engaged in public masturbation; and customers rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself. Numerous other forms of contact between the mouths of male customers and the vaginal areas of female performers were reported to have occurred.
Prostitution occurred in and around such licensed premises, and involved some of the female dancers. Indecent exposure to young girls, attempted rape, rape itself, and assaults on police officers took place on or immediately adjacent to such premises.

409 U.S. at 111, 93 S.Ct. at 393. Although Indiana does not compile a legislative history, it is entitled to rely on the experiences of other communities that have dealt with the problems associated with nude dancing. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-52, 106 S.Ct. 925, 930-931, 89 L.Ed.2d 29 (1986) (city of Renton was entitled to consider the evidence from other communities of the harmful effects of sexually oriented businesses when enacting its own zoning ordinance). Most communities and states that enact nude dancing regulations report problems similar to those described in California v. LaRue, along with other problems such as neighborhood blighting and decreased property values. See Attorney General’s Commission on Pornography Final Report, Vol. I., at 385-389 (1986) (discussing the problems associated with sexually oriented businesses, including bars with live nude dancing). Judge Posner wonders whether the bar at *1135issue in this case is in South Bend’s red light district, and whether South Bend even has a red light district. Concurring op. at 1100. The answer to both questions seems to be yes, but the record is not conclusive. The record does indicate that several establishments that challenged the public nudity statute are clustered in the same area on South Michigan Street. A cursory finger-walk through the Yellow Pages (not in the record) would probably disclose similar places along with “adult” bookstores and video parlors. Perhaps a more detailed record (such as contained in LaRue or the Attorney General’s report) would emphasize to us what the local people already know. But it should not matter. South Bend’s experience cannot be unique; the sheer volume of legislation in this field makes that clear.7 Indiana’s decision to use its public nudity statute to prohibit public nude dancing in bars is justified.

The state has made a moral judgment about public nudity, and consistent with that decision seeks to apply that judgment to public nude dancing. The state has also made moral judgments about bullfighting, dogfighting, gambling and any number of other activities that probably involve some conception of entertainment and expression. If all of these activities are protected to a limited extent by the First Amendment,8 this court’s only justification for suppressing one and allowing the others must be that we agree with the state’s decision to ban bullfighting, dogfighting and (some) gambling, but cannot understand why the state would want to prevent nude dancing. Nude dancing is not protected by a stated constitutional provision that a majority of people have subverted at the expense of a minority, requiring the petitioned court to intervene. Rather, this is a valid law which fulfills a perceived need. Determining the wisdom, need, or propriety of laws is the role of an elected legislature, not the federal judiciary. Gris-wold v. Connecticut, 381 U.S. 479, 481-82, 85 S.Ct. 1678, 1679-80, 14 L.Ed.2d 510 (1965).

To summarize, the majority’s decision is not compelled by any holding or dicta of the Supreme Court. Neither is it compelled by any reasonable interpretation of the First Amendment. Indiana’s prohibition of public nudity can apply to nude dancing that contains no expressive activity. The district court found and counsel for plaintiffs admitted that the dancing at issue does not express anything. Even if nude dancing is considered inherently expressive, Indiana may regulate the nude conduct through its content-neutral statute, because the governmental interest in preventing public indecency and immorality substantially outweighs whatever limited First Amendment rights are implicated by a simple striptease performed for money in bars. The judgment of the district court should be affirmed.

. This is not at odds with Supreme Court precedent. The Supreme Court specifically has declined to rule on the scope of First Amendment protection to be afforded nude dancing. See Young v. Arkansas, 474 U.S. 1070, 1072, 106 S.Ct. 830, 832, 88 L.Ed.2d 801 (1986) (White, J., dissenting from the denial of certiorari). In California v. LaRue, 409 U.S. 109, 117-18, 93 S.Ct. 390, 396-97, 34 L.Ed.2d 342 (1972), the Court made clear that conduct such as nude dancing is protected by the First Amendment only when there is a "communicative element,” citing U.S. v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). See dissenting opinion of Judge Easterbrook at 1127-29.

. Public nudity statutes — "indecent exposure” laws — of the type challenged here are widely accepted and usually upheld, even when the challenge is grounded in the First Amendment. See South Florida Free Beaches v. City of Miami, 734 F.2d 608 (11th Cir.1984) (nude sunbathers’ argument that state law and city ordinances prohibiting public nudity violated their First Amendment right to demonstrate that “the human body is wholesome and that nudity is not indecent” rejected because the First Amendment does not protect nudity unless combined with some "mode of expression" entitled to First Amendment protection); Williams v. Kleppe, 539 F.2d 803 (1st Cir.1976) (nude sunbathing in a national park not protected); Craft v. Hodel, 683 F.Supp. 289 (D.Mass.1988) (women who bared breasts in a political protest of alleged unequal treatment and exploitation of women not protected by First Amendment); Chapin v. Town of Southampton, 457 F.Supp. 1170 (E.D.N. Y.1978) (no First Amendment protection for nude sunbathers who sought to communicate ideas); Alexander v. Severson, 408 N.W.2d 195 (Minn.App.1987) (owner of adult bookstore featuring "exotic dancers” not entitled to injunction to prevent City of Minneapolis from enforcing its indecent conduct ordinance against dancers because no testimony "suggested an attempt to convey ideas” in the dancing); State v. Turner, 382 N.W.2d 252 (Minn.App.1986) (nude sunbathing).

. We agree with and join Judge Easterbrook’s discussion of the majority’s attempt to portray this statute as one aimed at nude dancing, rather than as a content-neutral public nudity statute. Nevertheless, because Indiana applies this statute to nude dancing, and that application bothers the majority, we shall examine reasons states and subdivisions of states desire to regulate or prohibit nude entertainment. We do this to emphasize that even if this statute were *1134aimed specifically at nude dancing, the state's valid interest in preserving public morality justifies the statute.

. The majority notes that "[djance also has biblical roots." Majority op. at 1085. While the biblical dancing cited was clearly not of the nude variety, we should point out that the Bible condemned as immoral the behavior Indiana sought to limit here. See Matthew 5:27-28. Fortunately we need only interpret the Constitution.

. See generally Attorney General's Commission on Pornography Final Report, Vol. I, at 767-1036 (1986) (discussing the impact of public sexual behavior on pornographic "models" and consumers of pornography, along with the connection between pornography, prostitution, and establishments offering nude dancing).

.This court's opinion should be unanimous at least with respect to appellant Miller’s dancing at J.R.’s Kitty Kat Lounge. The majority acknowledges that the Indiana statute is not over-broad; this case only involves the specific dances of each appellant. Indiana without question can ban nude dancing in establishments that serve alcohol. Majority op. at 1083. Therefore, this statute as applied to ban Miller's dancing in a bar that sells alcohol is not unconstitutional. See dissenting opinion of Judge Coffey at 1115, n. 8.

. Indeed, this court need only examine its own prior decisions to discover connections between nude dancing establishments and crime, especially prostitution. See United States v. Marren, 890 F.2d 924 (7th Cir.1989); United States v. Doerr, 886 F.2d 944 (7th Cir.1989); United States v. Muskovsky, 863 F.2d 1319 (7th Cir.1988).

. Judge Posner admits that bullfighting, although completely banned in every state, is as much "expressive entertainment" as nude dancing: “Bullfighting is forbidden not because it is not expressive, but because in American society its harmful consequences are thought to outweigh its expressive value.” Concurring op. at 1097.