The high Court's most recent exegesis on this issue came in
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), in which eight of the nine Justices again stated that nude dancing is expressive conduct within the protection of the First Amendment. Although the plurality held that an Indiana Public Indecency law requiring that erotic dancers wear pasties and G-strings
was constitutional,
Barnes engendered four separate opinions, none of which commanded a majority of the Justices.
See Barnes, 501 U.S. at 561–63, 111 S.Ct. at 2457–59 (opinion of Rehnquist, C.J., joined by O'Connor and Kennedy, JJ.);
id. at 571–72, 111 S.Ct. at 2463–64 (Scalia, J., concurring);
id. at 580–82, 111 S.Ct. at 2467–69 (Souter, J., concurring);
id. at 587, 111 S.Ct. at 2471 (White, J., dissenting, joined by Marshall, Blackmun, and Stevens, JJ.). Chief Justice Rehnquist's attempt to win acceptance for the proposition that the enforcement of
morality is a proper basis for limiting freedom of speech did not win majority support: only Justices O'Connor and Kennedy joined the Rehnquist opinion.
Barnes, 501 U.S. at 561–63, 111 S.Ct. at 2457–59. While Justice Souter agreed with the Chief Justice that the Indiana statute was properly analyzed under the traditional First Amendment four-part test articulated in
United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), he identified
secondary effects, not moral concerns, as the basis for restricting First Amendment protection of expressive conduct.
Barnes, 501 U.S. at 582, 111 S.Ct. at 2468–69 (“I nonetheless write separately to rest my concurrence in the judgment, not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments.”).