St. Mary's Law Journal


Fred S. Wilson


In Barnes v. Glen Theatre, Inc., the Supreme Court held the First Amendment protects nude dancing as conveying an expressive message, but state police powers may limit protection if the government establishes a substantial, content-neutral purpose. It is a principal of constitutional law where an actor intends to convey a message by expressive conduct, the First Amendment protection extends to that expression. Traditionally, time, place, and manner regulations restricting expressive conduct based on either the subject-matter of the message or the viewpoint of the actor receive content-based classification. However, content-based regulation of expressive conduct is constitutional only when narrowly drawn to achieve a compelling governmental interest. In reaching its holding, the Court developed morality as a new content-neutral basis to justify subject-matter based regulation of expressive conduct. By advancing a purpose removed from the restriction of the message expressive conduct conveys, government can effectively abridge a form of expression. Barnes represents the most recent step in an evolving trend giving the government greater room for regulating expression. Barnes provides that given virtually any content-neutral purpose, use of subject-matter based regulations may curtail expressive conduct. Although First Amendment jurisprudence usually require regulations of expression advance a substantial interest and allow alternative methods of communication, the Court in Barnes did not properly apply this rule. The use of morality as the purpose for prohibiting nude dancing results in the complete restriction of a form of expression protected by the First Amendment. The bedrock principal of the First Amendment is that government cannot abridge expression based on its content. Barnes effectively erodes this principal.


St. Mary's University School of Law