Barnes v. Glen Theatre: Nude Dancing and the O’Brien Test

July 24, 2026

In Barnes v. Glen Theatre, Inc., the Supreme Court ruled 5-4 in 1991 that Indiana could require nude dancers to wear pasties and a G-string without violating the First Amendment. Chief Justice William Rehnquist’s plurality opinion held that the state’s interest in protecting public morality justified the minimal clothing requirement, even though nude dancing sits at the outer edge of expressive conduct protected by the Constitution.¹

How the Case Reached the Supreme Court

The dispute began in South Bend, Indiana, in the late 1980s. Two adult venues, the Kitty Kat Lounge and Glen Theatre, wanted to present totally nude dancing and argued that Indiana’s public indecency statute could not constitutionally reach their staged performances. They framed the dancing as artistic expression protected by the First Amendment. The state took the position that its indecency law applied to any public appearance in the nude, including paid performances inside a private business open to the public.

What Indiana’s Public Indecency Law Required

Indiana’s statute made it a crime to appear nude in a public place with the intent to arouse sexual desires. For dancers, the practical effect was that performers had to wear pasties and a G-string on stage rather than nothing at all. The law did not ban the dancing itself; it regulated the state of dress in which it occurred.²¹

Is Nude Dancing Protected Speech?

The Court accepted that nude dancing is expressive conduct falling within the outer perimeters of the First Amendment, though only marginally. That classification mattered because it meant Indiana could not simply prohibit the dancing based on hostility to its message. The state had to justify its regulation under the standard the Court applies when a law restricts conduct that also carries expression.¹

Applying the O’Brien Test

The Court measured Indiana’s law against the four-part standard from United States v. O’Brien:¹

The regulation must fall within the constitutional power of the government to enact.
The law must further an important or substantial governmental interest.
The government interest must be unrelated to the suppression of free expression.
The restriction on First Amendment freedom must be no greater than is essential to further the government interest.

Indiana cleared the first two prongs through its traditional police power to protect public health, safety, and morals. On the third prong, the Court concluded the statute targeted public nudity as conduct, not the erotic ideas the dancers wanted to convey. On the fourth, the pasties-and-G-string requirement was a limited restriction rather than a ban, and the dancers could still communicate an erotic message while wearing minimal clothing.¹

The 5-4 Ruling and Its Separate Rationales

Rehnquist’s plurality opinion held that the state’s interest in public morality outweighed the limited expressive value of total nudity, so the Kitty Kat Lounge and Glen Theatre dancers had to comply with the minimum clothing rule. Two concurring justices reached the same result by different routes. Justice Antonin Scalia argued the statute was a general regulation of conduct that did not target expression, so ordinary First Amendment scrutiny should not apply at all. Justice David Souter grounded his vote in the secondary effects of adult entertainment, pointing to potential increases in crime, prostitution, and sexual assault in surrounding areas. Together, the plurality and concurrences established that a state may require minimal coverage in adult venues without running afoul of the First Amendment.¹

1
Cornell Law School. Barnes v. Glen Theatre, Inc. – Section: Syllabus
2
Justia. Indiana Code § 35-45-4-1