On June 21, 1991,
Chief Justice Rehnquist delivered the judgment of the Court, joined by
Justices O'Connor and
Kennedy.
Justices Scalia and
Souter authored their own concurring opinions, agreeing with the majority ruling but for different reasons. The plurality reasoned that, indeed, the type of dancing the respondents sought to include in their businesses was expressive conduct under the First Amendment, albeit "only marginally so". While the plurality ceded this point, it went on to decide how much constitutional protection the conduct warranted, and whether the statute at hand was, in fact, an unacceptable infringement on the freedom of expression. In determining the type of protection, the plurality turned to the "time, place, or manner" test as implemented in ''
United States v. O'Brien'' (1968), the four-pronged "O'Brien Test". The plurality found that enacting this sort of legislation was clearly within the constitutional authority of the state, and that the statute furthered a substantial government interest. To understand the legislative intent behind the creation of the statute, the plurality turned to the history of
indecency law, noting an expansive history and breadth of adoption for such legislation. Considering available precedent from cases such as
Roth v. United States (1957) and
Bowers v. Hardwick (1986), the plurality concluded that the statute furthered a government interest in order and morality. With regards to the third part of the O'Brien Test, the plurality stated that the statute was not related to suppressing expression. The statute did not prohibit nude dancing alone, but rather all nudity in public places. While it may be in some manner "expressive" for a person to appear naked in public, the plurality determined that basically any conduct anyone engages in at any time can be considered "expressive", so merely being expressive is not enough to bring such an argument. To provide support for the logical foundations of this finding, the plurality said, As to the final point of the O'Brien test, the plurality contended that the statute was narrowly tailored to achieve the government interest it sought to promote. Indiana's statute was not intended as a clandestine attempt at silencing the potentially expressive conduct of a person dancing in the nude; it was "an end in itself", designed to codify the societal disapproval of nude strangers in public. Even though, as the respondents contended, the patrons in their establishments are all of legal age and all willing to see the prohibited nudity, the fact remains that, for the purposes of the constitutional question at hand, the statute was not needlessly restrictive. In closing, the plurality reversed the ruling of the Court of Appeals. In effect, this ruling determined that it was not unconstitutional for a state to enact legislation forbidding public nudity outright, particularly if the only requirement for a person to no longer be considered "nude" was wearing some of the most revealing possible clothing.
Scalia's concurrence Justice Scalia agreed with the plurality's overall finding, i.e. that the Appeals Court's decision must be reversed. However, he differed from the plurality by arguing that the Indiana statute did not regulate any kind of expression, merely conduct. As such, Justice Scalia believed, it was inappropriate to apply First Amendment scrutiny to the statute in the first place. Justice Scalia took a more formalistic approach to constitutional interpretation than his benchmates by looking at the text of the statute itself and, seeing no reference express or implied to the limitation of any form of expression, deciding that there can be no First Amendment question present at all. Language he used later in his opinion demonstrates the
originalist views that characterized Justice Scalia's tenure on the bench.
Souter's concurrence Justice Souter also agreed with the plurality opinion's conclusion, but wanted to elaborate further his own reasons for this agreement. In his concurrence, Justice Souter's well-known sentence, "Although such performance dancing is inherently expressive, nudity per se is not", outlines his general purpose. He states that nudity is not inherently expressive because it is merely a state, not an act. He differs from Justice Scalia by agreeing with both the plurality and the dissent that, because the state of nudity can enhance the expressive eroticism of a dance, nude dancing must be afforded some constitutional protection. He agrees in large part with the dissent, but differs by saying that the negative secondary effects (such as prostitution, violence, etc.) that the state may wish to control with such a ban are correlated only to the presence of establishments offering nude dancing, rather than the expression conveyed in the dance. In the closing of his opinion, Justice Souter notes that the establishments are perfectly free to convey their erotic message in any other way short of violating obscenity laws. To this effect, he notes in closing that "a pornographic movie featuring one of respondents ... was playing nearby without any interference from the authorities at the time these cases arose". ==Dissent==