The case this city sent to the Supreme Court

1983 — 1991

The arrests: The Chippewa Bookstore, at 500 West Chippewa Avenue, sold adult materials and films and presented live nude and semi-nude performances, watched through glass panels; it sold no alcohol. Between March 1983 and March 1985, about eleven people were arrested there under Indiana's public indecency statute, Indiana Code § 35-45-4-1, for appearing in a state of nudity; raids on March 27, 1985 ended the live performances. The Kitty Kat Lounge sold liquor and presented barroom dancing, its dancers paid on commission, and its dancers wanted to perform entirely nude. Both houses, with their performers, sued the city, its police chief, the prosecuting attorney of St. Joseph County, and the state's attorney general in federal court in 1985, arguing that the First Amendment protected the dancing; a third South Bend suit was consolidated with theirs.

Six years of courts: The district court first sided with the clubs, enjoining enforcement in 1985 on the ground that the statute was too broad; the Seventh Circuit reversed in Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (1986). On remand, in Glen Theatre, Inc. v. Civil City of South Bend, 695 F. Supp. 414 (September 9, 1988), the district court held the dancing unprotected and ruled for the state — noting that the Glen Theatre building itself had by then burned, so that plaintiff's claim was finished whatever the law was. The Seventh Circuit, sitting en banc, then reversed again, 7 to 4 for the dancers, in Miller v. Civil City of South Bend, 904 F.2d 1081 (1990). The case is captioned at every level for officials of this county: the Supreme Court took it as Barnes v. Glen Theatre, Inc., after Michael Barnes, the prosecuting attorney of St. Joseph County, who had brought the misdemeanor charges that started it.

The ruling: On June 21, 1991, the Supreme Court decided 5 to 4 for the state. Barnes v. Glen Theatre, Inc., 501 U.S. 560, holds that Indiana's public indecency law — which in practice required dancers to wear pasties and a G-string — does not violate the First Amendment: the plurality rested on the state's interest in public morality and order, and a separate concurrence on the secondary effects of adult businesses became the reasoning later cases built on. The establishments were businesses open to paying customers, and the statute's rule for public places reached them through their own doors; no membership arrangement the clubs proposed would have taken them outside it. Barnes remains the Supreme Court's governing word on public nudity, and it is this city's case — the only entry in this section that is not small. It concerned dancing in commercial rooms, and nothing in its six years of litigation touched a social or swingers club; but the statute it upheld, and the public-place line it drew, are the background law against which every later Indiana club fight, including the ones in this section, was conducted.

Sources:

1. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) — the South Bend establishments, the statute (Ind. Code § 35-45-4-1 (1988)), the pasties-and-G-string requirement, and the holding.
2. Glen Theatre, Inc. v. Civil City of South Bend, 695 F. Supp. 414 (N.D. Ind. 1988) — the Chippewa Bookstore at 500 West Chippewa Avenue, the approximately eleven arrests of March 1983 to March 1985, the March 27, 1985 raids, the consolidation of the three 1985 suits, and the theatre's destruction by fire.
3. Glen Theatre, Inc. v. Pearson, 802 F.2d 287 (7th Cir. 1986), and Miller v. Civil City of South Bend, 904 F.2d 1081 (7th Cir. 1990) (en banc) — the two reversals on the way up.
4. The Indiana Lawyer, "South Bend nudity case goes from Supreme Court to the stage" (2013) — the prosecutor's misdemeanor charges against the dancers at the Kitty Kat Lounge and Glen Theatre, and the case's local course.