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Federal appeals court upholds Tennessee public indecency law

By David Hudson
First Amendment Center

Tennessee's public indecency law prohibiting totally nude dancing at sexually oriented businesses does not violate First Amendment free-expression rights, a federal appeals court ruled recently.

Various dancers, managers and owners of nude dancing establishments in Memphis, Nashville and Chattanooga challenged, in separate lawsuits, the constitutionality of Tennessee's amended public indecency statute, which took effect in July 1994.

The Legislature passed the statute in order to combat what it called the "adverse effects" associated with adult-oriented businesses, such as increased crime, urban blight and decreased property values.

The law provides that an individual commits the offense of public indecency or indecent exposure by appearing in a state of nudity, defined to be "the showing of the bare human male or female genitals or pubic area with less than a fully opaque covering … [and] the showing of the female breast with less than a fully opaque covering of the areola."

The preamble to the law states: "The purpose or intent of this act is to regulate public conduct and the public commercial exploitation of sex, without any express or implied intent to suppress or prohibit any legitimate speech or expression."

However, the plaintiffs claimed the law was not designed to prevent harms associated with public nudity, but to target the expressive conduct of nude dancing.

After the different lawsuits were consolidated, U.S. District Judge Robert Echols in Nashville ruled the statute constitutional, based on the 1991 U.S. Supreme Court decision Barnes v. Glen Theatre, Inc.

In Barnes, a sharply divided Supreme Court ruled 5-4 that an Indiana public indecency law requiring dancers to don G-strings and pasties posed no more than an incidental restriction on free-expression rights and was constitutional.

In fact, the Tennessee Legislature stated that its amended statute was specifically based on the Barnes decision.

On appeal, a three-judge panel of the 6th U.S. Circuit Court of Appeals affirmed Echols' decision in In Re: State of Tennessee Public Indecency Statute.

The appeals court ruled on Jan. 13 that the law "does not restrict speech based on a disagreement with the message it conveys in violation of the Constitution, but is instead aimed with adequate precision at combating secondary crime effects."

The 6th Circuit first determined that the law was content neutral rather than content based. In First Amendment jurisprudence, content-based laws, or laws that restrict speech based on the speech's expression, are subjected to a higher degree of scrutiny than content-neutral laws, which are passed for reasons unrelated to the message of the speech.

The appeals court ruled that because the Tennessee law is "fueled by the motivation of curbing the associated criminal effects of nude dancing it is content neutral."

Then, the appeals court applied the four-part test employed to determine if a content-neutral law is constitutional. A content-neutral law is constitutional if it:

  • Is within the constitutional power of government.
  • Furthers a substantial governmental interest.
  • Is unrelated to the suppression of free expression.
  • Burdens no more speech than is essential to further the governmental interest.

According to the court, prevention of sexually related offenses such as prostitution and sexual assault are within the constitutional power of government and serve a substantial governmental interest.

The appeals court determined that the law was unrelated to the suppression of free expression because it was targeting adverse secondary effects associated with the businesses. Finally, the court ruled that prohibiting totally nude dancing "still allows for considerable capacity and opportunity to express the erotic message."

Frierson Graves, an attorney for the plaintiffs, said that a decision had not yet been made on whether to appeal the ruling.

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