Justia Federal District Court Opinions

In this case we are asked to reconsider our unanimous decision in Miller v. Civil City of South Bend, 887 F.2d 826 (7th Cir.1989) in which we held that Indiana's Public Indecency statute, IND.CODE 35-45-4-1, was unconstitutional as applied because non-obscene barroom variety nude dancing performed as entertainment is expression and, as such, is entitled to limited protection under the first amendment. That opinion was subsequently vacated based on a majority vote by the judges of this Court and we reheard oral argument en banc on January 31, 1990.

The extensive substantive and procedural history of this case is adequately discussed in our vacated opinion and we need not repeat ourselves here. See Miller, 887 F.2d at 829. The underlying facts of this matter are uncontested. Plaintiff J.R.'s Kitty Kat Lounge is a drinking establishment located in the City of South Bend that prior to the enactment of the ordinance in question provided nude dancing as entertainment for their patrons. Plaintiff Glen Theatre, an establishment which does not serve alcoholic beverages, similarly provided nude dancing as entertainment. Plaintiffs Darlene Miller, Gayle Sutro and Carla Johnson are dancers who wish to engage in such activity. The plaintiffs, in two separate actions that were consolidated on appeal, filed suits in the district court to enjoin the State of Indiana from enforcing its public indecency law to prevent them from presenting nude and semi-nude barroom dancing. The statute, IND.CODE 35-45-4-1, on its face provides for a total ban on nudity in public places. Violation of the statute is a Class A Misdemeanor. It broadly defines nudity as "the showing of the human male or female genitals, pubic area, or buttocks with less than opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple, or the showing of covered male genitals in a discernibly turgid state."¹ Obviously, the activity the plaintiffs seek to engage in falls within this definition.

We stress from the outset the limited scope of our inquiry today. This case does not concern obscenity, as the State has conceded that the dancing involved is non-obscene. It also does not concern whether these establishments are "public places" under the statute; the plaintiffs acknowledge that they are. See State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580, 583 (1980). And we are not concerned with any alleged overbreadth problems; that issue has already been resolved by this Court. See Glen Theatre v. Pearson, 802 F.2d 287 (7th Cir.1987). Rather, the issue presented for this Court is a narrow one: whether non-obscene nude dancing of the barroom variety, performed as entertainment, is expression and thus entitled to protection under the first amendment.² Our analysis of the first amendment, based upon Supreme Court teachings and prior lower federal court decisions, directs us to the conclusion that such expression is entitled to limited protection and thus the statute is unconstitutional as applied.

In addressing the issue before us, we recognize that we are not writing on a clean slate. While yet to delineate the precise scope of the protection afforded nude dancing, the Supreme Court, along with several circuit and district courts, has repeatedly and consistently intimated that nude dancing performed as entertainment is protected activity under the first amendment. The Court first addressed the issue of first amendment protections for adult entertainment in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), where local bar owners sought a declaratory judgment that regulations promulgated by California's Department of Alcohol Beverage Control regulating the type of entertainment that could be presented in nightclubs or bars were unconstitutional because they abridged the freedom of expression guaranteed by the first and fourteenth amendments. The regulations in question "provided that liquor by the drink shall not be served in places where certain grossly sexual exhibitions are performed." Id. at 119, 93 S.Ct. at 397 (Stewart, J., concurring). Reviewing the legislative history, the Court observed that the regulations were aimed at "bacchanalian revelries" that went far beyond simple nude dancing and entered the realm of obscenity. Overturning the district court's grant of the declaratory judgment, the Court held that the State was empowered under the twenty-first amendment to regulate such entertainment in establishments that serve liquor. In so holding, the Court recognized that "some of the performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression ..." Id. at 118, 93 S.Ct. at 397. The Court was unanimous in agreement regarding this principle. The dissent by Justice Brennan found that the regulation "clearly applies to some speech protected by the First Amendment ..." Id. at 123, 93 S.Ct. at 399 (Brennan, J., dissenting). In a separate dissent, Justice Marshall noted evidence that the regulations may have been enacted for the "specific purpose of evading" the standards imposed on obscenity laws and that "the Government may suppress expression treating with sex only if it meets the three-pronged Roth-Memoirs [obscenity] test." Id. at 139, 93 S.Ct. at 408 (Marshall, J., dissenting).

In the next case before the Court involving nude dancing, the justices strengthened their apparent recognition that the activity may be protected expression. In Doran v. Salem Inn, owners of three topless bars sought a temporary injunction against a Northhampton, New York, town ordinance which prohibited topless dancing in "[a]ny public place." 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1974). The Court, per Justice Rehnquist, declared that "[a]lthough the customary 'barroom' type of nude dancing may involve only the barest minimum of protected expression, we recognized [in LaRue ] that this form of entertainment might be entitled to First and Fourteenth Amendment protection in some circumstances." Id. at 932, 95 S.Ct. at 2568. The Court upheld the grant of a preliminary injunction on the grounds that, unlike the ordinance in LaRue, the ordinance was overbroad because it applied to all commercial establishments and thus was not justifiable under the twenty-first amendment.

The Court reached differing conclusions in LaRue and Doran concerning statutes regulating adult entertainment. In doing so, it drew a distinction between an establishment which serves alcohol and one which does not. The ordinance in LaRue was upheld because it was within the confines of the state's power under the twenty-first amendment whereas the ordinance in Doran was not. These two cases can be reconciled only on the implicit assumption that the regulated activity, topless dancing, was protected by the first amendment. Otherwise, the state's police power would be sufficient to support the statutes in both cases. This implicit assumption was made explicit in the Court's next encounter with nude dancing, Schad v. Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981).

In Schad, the Court addressed a city zoning ordinance that prohibited all live entertainment. The defendants, operators of an adult bookstore, were convicted of violating the ordinance by offering to its customers the opportunity to view a live nude dancer. The Court overturned the convictions finding that the ordinance, by restricting all forms of live entertainment, was overbroad and thus violative of the first and fourteenth amendments.

The Court began its analysis by discussing the scope of the broadly drafted city ordinance: "Here the Borough totally excludes all live entertainment, including non-obscene nude dancing that is otherwise protected by the First Amendment." Id. at 68, 101 S.Ct. at 2182. From this starting point, the Court went on to discuss the protections afforded nude dancing under the first amendment. It noted that "[n]udity alone does not place otherwise protected material outside the mantle of the first amendment." Schad, 452 U.S. at 66, 101 S.Ct. at 2181 (citation omitted). The Court went on to state that "[n]or may an entertainment program be prohibited solely because it displays the nude human figure ..." Based on these principles the Court concluded "nude dancing is not without its First Amendment protections from official regulations." Id. (citations omitted) (emphasis added). The Court, while finding it unnecessary to define precisely the scope of the protection afforded the activity, unmistakably recognized that in some circumstances it falls within the ambit of the first amendment.

The majority's position on nude dancing in Schad was accepted by the entire Court. Chief Justice Burger, joined by Justice Rehnquist, dissented on the overbreadth issue but accepted the majority's view on nude dancing. The Chief Justice concluded that "the fact that a form of expression [nude dancing] enjoys some constitutional protection does not mean that there are not times and places inappropriate for its exercise." Id. at 86, 101 S.Ct. at 2191 (Burger, C.J., dissenting). Justice Stevens, in a concurring opinion, recognized that "the foliage of the First Amendment may cast protective shadows over some forms of nude dancing ..." Id. at 80, 101 S.Ct. at 2188. As a result of the Court's agreement on this issue, Schad has generally and continually been recognized by lower courts for the proposition that nude dancing is protected expression.

In the Court's post-Schad decisions it has consistently re-affirmed its position in Schad that nude dancing performed as entertainment falls within the scope of the first amendment. In Young v. Arkansas, 474 U.S. 1070, 106 S.Ct. 830, 88 L.Ed.2d 801 (1985), Justice White, joined by Justice Brennan in dissenting from denial of certiorari, recognized the Court's "repeated indications that barroom nude dancing is a type of expression that is protected under the First Amendment" and urged an explicit holding regarding the scope of that protection. In addition, in Massachusetts v. Oakes, --- U.S. ----, 109 S.Ct. 2633, 2642, 105 L.Ed.2d 493 (1989), Justice Brennan, in a dissent joined by Justices Marshall and Stevens, declared that Schad affords nude dancing protection under the first amendment, and that modeling, like nude dancing, "enjoys like shelter under the First Amendment." See also Sable Communications v. FCC, --- U.S. ----, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989) ("[s]exual expression which is indecent but not obscene is protected by the First Amendment"); New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 719, 101 S.Ct. 2599, 2602, 69 L.Ed.2d 357 (1980) (Stevens, J., dissenting) (stating that in LaRue the Court recognized "the protected expression implicated by nude dancing"). Most recently, in FW/PBS, d/b/a Paris Adult Bookstore II v. City of Dallas, --- U.S. ----, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the Court addressed a challenge to an ordinance enacted by the City of Dallas regulating "sexually oriented businesses" through a scheme incorporating zoning, licenses, and inspections. Various adult establishments, including several providing live nude dancing, sued for declaratory relief and a temporary as well as a permanent injunction. Six justices agreed that the ordinance violated the first amendment by establishing a licensing scheme without adequate procedural safeguards as required by Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965), but they split into two camps as to what safeguards are required in this context. Justice O'Connor, writing for the three-member plurality, began her analysis by noting that

[a]lthough the ordinance applies to some businesses that apparently are not protected by the First Amendment, e.g., escort agencies and sexual encounter centers, it largely targets businesses purveying sexually explicit speech which the city concedes for purposes of these cases are protected by the First Amendment. Cf. Smith v. California, 361 U.S. 147, 150 [80 S.Ct. 215, 217, 4 L.Ed.2d 205] (1959) (bookstores); Southeastern Promotions, Ltd. v. Conrad, supra [420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) ] (live theater performances); Young v. Mini Theaters, Inc., 427 U.S. 50 [96 S.Ct. 2440, 49 L.Ed.2d 310] (1976) (motion picture theaters); Schad v. Mount Ephraim, 452 U.S. 61 [101 S.Ct. 2176, 68 L.Ed.2d 671] (1981) (nude dancing).

Paris Adult Book Stores II, 110 S.Ct. at 604 (emphasis added). The plurality then concluded that "the businesses challenging the scheme have a valid First Amendment interest." This recognition that the first amendment affords nude dancing some protection is implicit throughout the plurality opinion. With the exception of Justice Scalia in dissent, no other justice took issue with the plurality's position on nude dancing.

From this reading of Supreme Court precedent,³ we are constrained to hold today that, as a matter of law, non-obscene nude dancing performed as entertainment is expression and as such is entitled to limited protection under the first amendment. In reaching this conclusion, we are well aware that the distinction between conduct and expression is an elusive one.⁴ While clearly not all conduct is expression, dance as entertainment is a form of conduct that is inherently expressive.

We begin with a brief examination of the mode of expression involved. Dance as entertainment is one of the earliest forms of expression known to man. Its written history goes back at least as far as fifth century classical Greece, where Euripides described the frenzied fertility dance in his drama Bacchae. Dance also has biblical roots. See e.g., Psalms 149:3 ("let them praise his name with dancing, making melody to him with timbre and lire!"); Psalms 150:4 ("Praise him with timbrel and dance ..."). In ancient Rome, dancing was an important part of the annual festivals of Lupercalia and Saturnalia which featured wild group dances that were the precursors of the later European carnival. Eroticism in dancing also has ancient origins. The modern-day belly dance, or baladi, can be traced to the Egyptians of the fourth century, B.C. Buonaventura, W. Serpent of the Nile (1990). From these ancient roots one can trace the forms of dance native to America. Indeed dance pervades our culture, from the American Ballet Theater to Broadway's A Chorus Line and West Side Story, from Hollywood's Astaire and Rogers to the local discotheque.

Dance has been defined as "the art of moving the body in a rhythmical way, usually to music, to express an emotion or idea, to narrate a story, or simply to take delight in the movement itself." 16 The New Encyclopedia Britannica 935 (1989). Inherently, it is the communication of emotion or ideas. At the root of all "[t]he varied manifestations of dancing ... lies the common impulse to resort to movement to externalise states which we cannot externalise by rational means. This is basic dance." Martin, J. Introduction to the Dance (1939). Aristotle recognized in Poetics that the purpose of dance is "to represent men's character as well as what they do and suffer." The raw communicative power of dance was noted by the French poet Stephane Mallarme who declared that the dancer "writing with her body ... suggests things which the written work could express only in several paragraphs of dialogue or descriptive prose."

Any attempt to distinguish "high" art from "low" entertainment based solely on the advancement of intellectual ideas must necessarily fail. Judge Easterbrook contends in dissent that music and ballet are protected because music appeals to the intellect and ballet tells stories, whereas nude dancing offers neither. Dissent at 1124. Not all ballet tells stories, however, and not all music appeals to the intellect. The art/entertainment distinction would remove the shield of the first amendment from many forms of nonverbal art because they fail to communicate a defined intellectual thought; this attempted demarcation would leave them essentially unprotected.

The State in effect advances the proposition that the dance involved loses its expressive qualities as the dancers lose their clothing. It is well established, however, that "[n]udity alone does not place otherwise protected material outside the mantle of the first amendment." Schad, 452 U.S. at 66, 101 S.Ct. at 2181 (citation omitted). Nor does the fact that the dance is sexual remove the mantle of protection: "Sexual expression which is indecent but not obscene is protected by the First Amendment." Sable Communications v. FCC, --- U.S. ----, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989). And it is immaterial for constitutional purposes that nude dancing may be performed for profit. See Joseph Burstyn v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). The State's position, therefore, distills down to the assertion that nude dancing is distasteful and/or morally repugnant.

While the ideas communicated by a particular dance may well vary according to the context in which it is performed, the communication of expression clearly does not. Attempts to distinguish between expressive and nonexpressive dance are misconceived and bring to mind the words of Justice Harlan in Cohen v. California, 403 U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1970): "[W]e think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual." It is irrelevant for the purposes of our inquiry that we may find the expression inherent in nude dancing to be at odds with our particular tastes; just last Term the Court re-affirmed its belief that "[i]f there is a bedrock principle underlying the first amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable." Texas v. Johnson, --- U.S. ----, 109 S.Ct. 2533, 2544, 105 L.Ed.2d 342 (1989). As the Second Circuit has stated:

[W]hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person [at the local pub].

Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2d Cir.1975) (quoting Salem Inn, Inc. v. Frank, 501 F.2d 18, 21 n. 3 (2d Cir.1974), aff'd in part, Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)). The State conceded as much at oral argument when it agreed that the plaintiffs' precise dance routines would certainly be protected expression if they were performing the same routines but choreographed as part of a graduate Ph.D. thesis.

To determine whether this activity is sufficiently embodied with communicative expression to warrant first amendment protection, we must ask whether "[a]n intent to convey a particularized message was present and [whether] the likelihood was great that the message would be understood by those who view it." Texas v. Johnson, --- U.S. ----, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730-31, 41 L.Ed.2d 842 (1974)). The dominant theme communicated here by the dancers is an emotional one; it is one of eroticism and sensuality.⁵ Though this dance is clearly of inferior artistic and aesthetic quality as contrasted with a classic ballet such as the Dance of the Seven Veils in Strauss' Salome, the erotic message communicated to the viewers is present in both performances. That Strauss' Salome tells a compelling story and the nude dancing at the Kitty Kat Lounge may not is not determinative; expression does not lose its protection for lack of a scripted plot. And it is apparent that those who view the respective dances readily comprehend the intended messages, for they advance currency to view them. The success of both the ballerina in an erotic production and the nude dancer in a barroom setting depend on the communication of their sensual message.

As stated above, dance as entertainment inherently embodies the expression and communication of ideas and emotions. The State's reliance on the nudity and the unappealing nature of the dance involved here do not serve to remove the partial cloak of protection afforded by the first amendment. Nude barroom dancing, though lacking in artistic value, and expressing ideas and emotions different from those of more mainstream dances, communicates them, to some degree, nonetheless.

Not only does our holding today comport with Supreme Court precedent, it also is in consonance with the holdings of the numerous federal courts that have addressed the issue. The two Circuit Courts of Appeal that have confronted the protections afforded nude dancing, the Ninth and the Eleventh, have held that it is protected activity under the first amendment. See International Food & Beverage System v. Fort Lauderdale, 794 F.2d 1520, 1525 (11th Cir.1986) (citing Schad to support the proposition that "we may take it for granted that nude dancing is constitutionally protected expression, at least if performed indoors before paying customers and not in a street or park before casual viewers"); Krueger v. City of Pensacola, 759 F.2d 851, 854 (11th Cir.1985) (in addressing ordinance barring topless dancing, the court noted that "we are bound to treat topless dancing as a form of expression which is protected at least to some extent by the First Amendment"); Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir.1986) (relying on Schad and Doran for its determination that "topless dancing [is] expression, subject to constitutional protection within the free speech and press guarantees of the first and fourteenth amendments"); BSA, Inc. v. King County, 804 F.2d 1104, 1107 (9th Cir.1986) (in holding that nude dancing is protected activity, the court found that the assertion that "barroom nude dancing is not First Amendment activity because it is non-expressive and lacks any communicative content" is "controverted by Schad "); Kuzinich v. County of Santa Clara, 689 F.2d 1345 (9th Cir.1982). The district courts are in general agreement as well. See, e.g., Walker v. City of Kansas City, Mo., 691 F.Supp. 1243, 1249 (W.D.Mo.1988) (citing Schad for proposition that "since an entertainment program may not 'be prohibited solely because it displays the human nude figure,' nude dancing is protected expression under the First Amendment"); Doe v. City of Minneapolis, 693 F.Supp. 774, 779 n. 12 (D.Minn.1988) ("live nude dancing is also protected expression under the First Amendment").⁶

Our inquiry cannot end here. Having concluded that the activity involved is within the ambit of the first amendment, we must next examine whether the Indiana statute is a valid restriction on that protected expression. Regrettably, Indiana does not record the legislative history of its statutes. At oral argument the State asserted that the purpose of the public indecency statute was the protection of public morality generally, and the family structure in particular. The State possesses the broad powers to effectuate this legitimate and significant interest through public education and the appropriate exercise of its police powers. However, in advancing this interest it must operate within the prescriptions of the first amendment.

It is a fundamental precept of the first amendment that all expression, whether it is written, pictorial or by way of performance, is presumptively protected against government interference and restraint. Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). The first amendment does not discriminate among ideas. The messages conveyed by the performances in question, no matter how unappealing to one's personal value system, are protected nonetheless. Indiana's attempt to ban nude dancing in pursuit of its aforementioned interest is a forbidden interference and restraint because it seeks to withdraw this non-obscene and protected communication from the realm of public discourse.⁷ "When the government, acting as censor, undertakes selectively to shield the public from some kinds of [expression] on the grounds that they are more offensive than others, the First Amendment strictly limits its power." Erznoznik v. City of Jacksonville, 422 U.S. 205, 211, 95 S.Ct. 2268, 2273, 45 L.Ed.2d 125 (1975). As we have recognized, "above all else, the First Amendment means that government has no power to restrict expression because of its message or ideas ..." American Booksellers Ass'n v. Hudnut, 771 F.2d 323, 328 (7th Cir.1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986) (Easterbrook, J.) (quoting Police Department v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2289, 33 L.Ed.2d 212 (1972)). To those who understandably find objectionable the type of conduct sought to be condemned by the State, we offer the prescription of Justice Brandeis in Whitney v. California, to wit: "the remedy to be applied is more speech, not enforced silence." 274 U.S. 357, 377, 47 S.Ct. 641, 649, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring).

This is not to suggest that the State is powerless to regulate the presentation of nude dancing. On the contrary, the State retains a great deal of control. A sovereign may establish reasonable time, place and manner restrictions on protected expression. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). Such legislative power unquestionably permits the state to bar the imposition of nude dancing upon the public in settings such as streets, parks and beaches. Similarly, it may regulate expressive conduct for reasons unrelated to the suppresion of speech. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). It may also regulate nude dancing under the power granted it by the twenty-first amendment. California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972); City of Newport v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986). And it most certainly may ban obscene nude dancing. Sable Communications, 109 S.Ct. at 2835. Despite the State's laudable concerns which apparently are the bases of the Indiana statute, the total ban at issue here does not fall within any of these constitutionally permissible areas of legislation. If the State wishes to regulate non-obscene expressive activity or public nudity, it may do so, but only in consonance with the first amendment.

The statute is unconstitutional as applied. Accordingly, the judgment of the district court is REVERSED and the State is enjoined from enforcing its public indecency statute, IND.CODE 35-45-4-1, against these plaintiffs to prohibit non-obscene nude dancing as entertainment.

CUDAHY, Circuit Judge, concurring:

I concur in Judge Flaum's excellent opinion for the court. He has effectively marshalled the Supreme Court and other authority that points in the direction of constitutional protection for nude dancing qua entertainment. That authority compels a result that is correct in this case.

I do, however, have concerns that I shall briefly note. Despite impressive displays of scholarly analysis and broad-ranging erudition on all sides, the need to invoke the First Amendment here strikes me as a bit trivializing and, perhaps, unworthy. The application of the Amendment to these facts is correct as a matter of law. I believe we of the majority are doing what the law commands, but the high purposes of the Amendment seem, in these circumstances, in some danger of being lost.1

It seems to me beyond doubt that a barroom striptease is "expressive." Even if relatively restrained, as are the videos in evidence here, a striptease sends an unadorned message to a male audience. It is a message of temptation and allurement coupled with coy hints at satisfaction. In a real barroom, messages would probably also flow in the opposite direction, in the form of encouraging comments to the performer from the patrons.2 These responses speak strongly to the fact that a message is being sent and received. It is also clear that the message of the striptease is not a subject that the Founding Fathers had in mind in drafting the First Amendment.3 That fact is certainly not dispositive, nor perhaps even probative, but it suggests a need for caution in making the Amendment do service in situations as improbable as this one seems to me.

POSNER, Circuit Judge, concurring in the opinion and judgment of the court.

Public performances of erotic dances debuted in Western culture in the satyr plays of the ancient Greeks, were suppressed by Christianity, and, with Christianity's grip loosening, reappeared in the late nineteenth and early twentieth centuries. They reappeared in a variety of forms: as the can-can and the music-hall chorus line, from which the Folies Bergere and its tame American counterparts--the Ziegfeld Follies, and more recently the Radio City Music Hall Rockettes and the chorus lines in Broadway and Hollywood musicals--descend. As the Dance of the Seven Veils in Richard Strauss's opera Salome (1905), from which the fan dancing of Sally Rand and the decorous striptease of Gypsy Rose Lee, or of Gwen Verdon in the musical comedy Damn Yankees, may be said to descend. Ballet was nothing new in the nineteenth century; but as the costumes of ballet dancers became scantier, the erotic element in ballet became more pronounced, reaching scandalous proportions in Diaghilev's L'apres midi d'un faune (1912) (an example, and not an isolated one, of male erotic dancing) and becoming a staple of distinguished companies like the New York City Ballet and the American Ballet Theater. "Modern dance," a ballet offshoot pioneered by, among others, the erotic dancer Isadora Duncan, has long been partial to nudity. Examples of erotic dance in non-Western cultures include not only belly dancing but also the overtly erotic nude dancing of Les Ballets Africains de Keita Fodeba, which, but for its exoticism, would be considered shockingly explicit. For remarkable description of fertility dances see Sachs, World History of the Dance 85-104 (1937); on erotic and nude dancing generally, see Cheshire, Eroticism in the Performing Arts, in Webb, The Erotic Arts 297-306 (rev. ed. 1983); Sorell, Dance in Its Time 425-28 (1986). The law's efforts to restrict such dancing are detailed in an Annotation, Topless or Bottomless Dancing or Similar Conduct as Offense, 49 A.L.R.3d 1084 (1973), 49 A.L.R.3d Supp. 59 (1989).

De gustibus non est disputandum; but whether one has a taste or a distaste for erotic dance in general or striptease dances in particular, to say as the district judge did in this case that a striptease dance is not "expressive activity," but "mere conduct," Glen Theatre, Inc. v. Civil City of South Bend, 695 F.Supp. 414, 419 (N.D.Ind.1988), is indefensible and a threat to artistic freedom. This is not to suggest that the State of Indiana has no power to regulate nude striptease dancing; it has ample power. But to try to justify that power, as the district judge in this case tried, on the ground that such dancing is not expression is misguided. And, as the parties have framed the issues, no alternative justification is possible in this case. The qualification is an important one, and I shall return to it.

An Indiana statute makes public indecency, including appearing nude in public, a crime. Ind.Code Sec. 35-45-4-1(a)(3). The normal operation of the statute is illustrated by Elliott v. State, 435 N.E.2d 302 (Ind.App.1982), where the defendant was convicted of urinating in public. However, in State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979), appeal dismissed for want of a substantial federal question under the name Clark v. Indiana, 446 U.S. 931, 100 S.Ct. 2146, 64 L.Ed.2d 783 (1980), the Indiana Supreme Court interpreted the statute to apply to nude entertainment in theaters, nightclubs, and other establishments open to the public. The interpretation was not inevitable. State v. Brooks, 275 Or. 171, 550 P.2d 440 (1976); compare City of Chattanooga v. McCoy, 645 S.W.2d 400, 401 (Tenn.1983). But, having been made, it induced the Indiana court in Baysinger, in an effort to save the constitutionality of the statute, to carve out an exception for performances having an expressive character. That is how the issue of "expression" got into this case. If the striptease dances that the plaintiffs want to put on for their customers are not expressive, then since at the end of the dances the dancers are nude, the statute makes the dances criminal.

Indiana is exceptional although not unique among contemporary American states in attempting, without recourse to the Twenty-First Amendment, to impose a state-wide ban on erotic dance performances that are not obscene, merely because the performances involve nudity--and a bare breast is nudity within the meaning of the Indiana statute. The statute's reach may be an accident of interpretation. The intended scope may well have been narrower; and a differently drafted statute could, as I shall explain, achieve the state's legitimate goals without raising serious constitutional questions. So this case may be something of a freak; but it is a fascinating freak.

If the district judge had said that the dances in issue are not classy, he would have been on sound ground. The record contains a videotape of the dances that the proprietor of the "Kitty Kat Lounge" would like to exhibit. The name of the establishment does not promise high culture, nor the fact that it is a bar rather than a theater, nor (a related point) that the compensation of the dancers depends on the number of drinks they induce appreciative customers to buy after the dance. The dancers are presentable although not striking young women. They dance on a stage, with vigor but without accomplishment, to the sound of a jukebox, and while dancing they remove articles of clothing (beginning, for example, with a glove) until nothing is left. Thirty years ago a striptease that ended in complete nudity would have been thought obscene. No more. It is worth pausing a moment to ask why. Nudity as titillation or outrage is relative rather than absolute. In a society in which women customarily go about in public bare-breasted, there is no shock value in a bare breast, while in Victorian England, where decent women were expected to wear dresses that reached from the top of the neck to the floor--where even the legs of furniture were sometimes clad for the sake of decency--a bare ankle was a sensation. Since then female dress has become progressively less modest, and today many decent women appear in public in states of undress (mini-skirts, hot pants, slit skirts, body stockings, see-through blouses, decolletage becoming outright topless evening wear) that would have been considered nakedness, or the garb of prostitutes, thirty years ago. A striptease that ended in a degree of nudity no longer suggestive of preparations for sex--a striptease that left the stripper garbed as she might be for an expedition to the supermarket--might lack erotic punch today.

In any event there is no contention that the stripteases of the "Kitty Kat" dancers are obscene. It would be difficult to make such a contention with a straight face at a time when a career respectable in the eyes of many people can be founded on posing in the nude for men's magazines. Douglass v. Hustler Magazine, Inc., 769 F.2d 1128 (7th Cir.1985). The contention, rather, is that the dances are not expressive, so the First Amendment does not protect them, so there is no obstacle to enforcing the Indiana statute against the dancers and their accomplice, the proprietor of the Kitty Kat Lounge. If this reasoning is correct, the arts are in jeopardy.

Dance, as Judge Flaum emphasizes with pertinent references, is a medium of expression, of communication. What it expresses, what it communicates, is, like most art--particularly but not only nonverbal art--emotion, or more precisely an ordering of sights and sounds that arouses emotion. Ballet is "an exact and flexible language to communicate formal fantasy." Denby, Dance Writings 507, 509 (1986). "In your excitement as you watch the quick dancing, it will often evoke in passing an intensely poignant fantasy image of human relations." Id. at 512. "Susceptibility to ballet is a way of being susceptible to animal grace of movement." Id. at 530. Erotic dances express erotic emotions, such as sexual excitement and longing. Nudity is the usual state in which sexual intercourse is conducted in our culture, and disrobing is preliminary to nudity. But of course nudity and disrobing are not invariably associated with sex. The goal of the striptease--a goal to which the dancing is indispensable--is to enforce the association: to make plain that the performer is not removing her clothes because she is about to take a bath or change into another set of clothes or undergo a medical examination; to insinuate that she is removing them because she is preparing for, thinking about, and desiring sex. The dance ends when the preparations are complete. The sequel is left to the viewer's imagination. This is the "tease" in "striptease."

Because the dancers at the Kitty Kat Lounge are not professional dancers, because three of the four dances were not choreographed, because the music to which they dance is canned, and because the dancers sell drinks to the customers afterward, it is tempting to suppose that the "expressive" elements of their "performance" are phony--that the dance and the music are figleaves to conceal the absence of figleaves. Probably the supposition is erroneous; certainly it is not backed by evidence. The striptease was not invented in order to place a cultural patina on displays of naked women. Of course, there would be no female stripteases without a prurient interest in the female body; but that is just to say that there would be no erotic art without Eros. Though there is no striptease without some stripping--in today's moral climate, without a great deal of stripping--the dancing and the music are not distractions from the main theme, patched on to fool the censor; they are what make a given female body expressive of a specifically sexual emotion. The striptease is the ensemble of the music, the dance, the disrobing, and the nude end state; it is more erotic than any of its components; and what makes it more erotic than the body itself, or the disrobing itself, is, precisely, that it is expressive of erotic emotion. The State of Indiana may be empowered to regulate or even suppress it, but not on the ground that it is not expression.

The conclusion that striptease is an expressive medium can be resisted on four grounds: the conclusion leads to a reductio ad absurdum; the only expression protected by the First Amendment is the expression of ideas and opinions; the amendment does not protect mere entertainment; the amendment protects speech, not conduct.

1. It is tempting to argue that a striptease just can't be expressive because if it is then everything is--including kicking one's wastebasket in anger and putting geraniums in a window box. These examples are not the same, however. There is a sense in which everything we do consciously and much of what we do unconsciously is expressive--is the visible counterpart to (or "expression" of) some "inner" mental state, often an emotion such as anger or fear or joy. Kicking the wastebasket is expressive in this sense. But the expression that is relevant to freedom of speech, and absent when the wastebasket is kicked in private, is the expression of a thought, sensation, or emotion to another person. This is a narrower concept of expression than the first but it is of course enormously broad, encompassing not only the geranium example but the whole field of human communication, verbal and nonverbal. We communicate with each other by dress, grooming, deportment, and gestures, as well as by words. Not everything in this enormous range of communicative activity is within the scope of the First Amendment. Social dancing is not. City of Dallas v. Stanglin, --- U.S. ----, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989). Nor is casual chit-chat. Swank v. Smart, 898 F.2d 1247, 1250-51 (7th Cir.1990). But what is excluded is not excluded because it is not expression; it is expression.

Let me try to refine the distinction between the expressive and the protected with the following unrefined examples: a videotape of a couple engaged in sexual intercourse, filmed without their knowledge and exhibited to the patrons of the Kitty Kat Lounge; the same videotape, made to be shown to psychologists specializing in the treatment of sexual dysfunction; a videotape of a couple, also engaged in sexual intercourse, but the man and the woman are actors who endeavor by their movements and expressions to maximize the emotional impact of their act on the viewer. The first videotape is not expressive, but is obscene (nude sunbathing would also be nonexpressive, but would not be obscene). The second is neither. The third is expressive and obscene. The third is not saved from condemnation because it is expressive. Most pornography is expressive, indeed expressive of the same emotions that a striptease expresses. The difference is that the striptease is not obscene by modern standards.

If this analysis is wrong, our decision in American Booksellers Ass'n, Inc. v. Hudnut, 771 F.2d 323 (7th Cir.1985), aff'd without opinion, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986), is wrong. Indianapolis had enacted an ordinance forbidding "pornography," defined as "the graphic sexually explicit subordination of women" through various means including pictures of women in "postures or positions of ... display." The videotape of the Kitty Kat dancers is pornography within the meaning of the ordinance. We held that the ordinance violated the First Amendment because it was an effort to control the way people think about women and sex. Neither the ordinance, nor our ground for invalidating it, would have made sense if pornography were not expressive in a sense relevant to the First Amendment. The doctrine that forbids restrictions on speech that are based on the viewpoint of the speaker is a doctrine of the First Amendment; its invocation presupposes that what is being restricted is speech. An ordinance that forbade nude sunbathing would not violate the First Amendment even if the purpose was to change people's thinking about women and sex, because it would not be prohibiting "speech," however broadly defined. People v. Hollman, 68 N.Y.2d 202, 507 N.Y.S.2d 977, 500 N.E.2d 297 (1986); South Florida Free Beaches, Inc. v. City of Miami, 734 F.2d 608 (11th Cir.1984). Unless nonobscene pornography (a category that includes nude striptease dancing) is speech, the Indianapolis ordinance could not have violated the First Amendment.

2. The second argument against acknowledging that striptease dancing is expression is that it is not the type of expression that the First Amendment protects, because it is not the expression of ideas or opinions. Indeed it is not the expression of ideas or opinions (nor have the appellants ever contended otherwise). But if this were decisive against the application of the First Amendment, as urged for example in Wright, A Rationale From J.S. Mill for the Free Speech Clause, 1985 S.Ct.Rev. 149, 164-69, it would thrust outside the amendment's boundaries virtually all nonverbal art--except the relatively small fraction that is didactic--and much literature as well. The implications for nonvocal music are particularly arresting. By straining one can perhaps find "ideas" in a few tone poems and other programmatic music. For example, the opening chords of Richard Strauss's Ein Heldenleben (A Hero's Life ) may be said to convey an idea of the heroic. But what is really being conveyed is not an idea but a feeling, a feeling of grandeur that evokes or enhances the idea of the heroic; and in part the feeling is conveyed (or identified) by the title of the piece. Beethoven's heavy use of march themes lends, by association, a martial air to much of his music, yet it would be odd to describe the music as being "about" political or military affairs. Music that imitates the twittering of birds does not convey an ornithological "message," and Gustav Holst's The Planets is not a treatise on astronomy. Some nonvocal musical works convey simple narratives, for example the story of the cathedral that rises from and sinks back into the sea, "told" in Debussy's La Cathedrale engloutie. But narratives are not ideas, and anyway a striptease is a narrative quite as elaborate as that found in pantomimic ballets (such as Romeo and Juliet ) and more elaborate than the narratives in wordless music. Most nonvocal music has no verbal--paraphrasable--content whatsoever, and much of it does not even express a specific emotion.

Admittedly, not all thought is verbal, especially if "language" is narrowly interpreted to exclude mathematics and other nonverbal symbolic systems. But even if "thought," "concept," "idea," and "opinion" are broadly defined, these are not what most music conveys; and even if music is regarded as a language, it is not a language for encoding ideas and opinions. Insofar as it is more than beautiful sound patterns, music, like striptease, organizes, conveys, and arouses emotion, though not sexual emotion primarily. If the striptease dancing at the Kitty Kat Lounge is not expression, Mozart's piano concertos and Balanchine's most famous ballets are not expression. This is not to suggest that striptease dancing is indistinguishable from these other forms of expression. But they cannot be distinguished on the ground that a piano concerto and a (nonpantomimic) ballet express ideas and a striptease expresses emotion. If the concerto and the ballet have meaning--and I do not doubt that there is a meaningful sense in which they do--so has the striptease.

Pictorial art is in some ways closer to striptease than music is, because so much painting and sculpture are of naked women. The distinguished collection of Titian nudes in the National Gallery in Washington includes Venus With a Mirror, which depicts a voluptuous, coiffed and bejewelled, golden-haired woman--nude within the meaning of Ind.Code Sec. 35-454-1(b)--sitting on a couch and looking at her face in a mirror held up by a cherub (Cupid--his quiver is at his feet), while another cherub hovers beside her waiting to crown her with a wreath. Walker, The National Gallery of Art 209 (1975) (pl. 259). The painting does not express an idea, a thought, or an opinion. It is not a sociological account of a sixteenth-century Venetian woman's toilette, or a treatise on classical mythology. It uses that mythology as a source of iconography, and to the extent that by doing so the painting evokes the story of Venus it may be said to have narrative content; but so does a striptease. What the painting primarily conveys to the viewer is not a story, let alone an idea or an opinion, but a complex of feelings--feelings of voluptuousness, sensuality, beauty, harmony, sumptuousness, sexual allure (we know what Venus is the goddess of).

We might try to close the gap between the intellectual and the emotional by saying that the painting expresses a concept of beauty, of opulence, of balance, and so forth. But among the "so forth" are feminine sexuality and desirability, and if these are "concepts" in Venus With a Mirror they are "concepts" in a striptease (or in a Playboy pin-up) in just the same sense. The striptease version is coarse, unsubtle, "artless," even degraded, but the two works are "conceptual" to the same degree. Feminists forcefully assert the continuity of high and low culture: "Within the history of art, the female nude ... is a paradigm of Western high culture with its network of contingent values: civilization, edification, and aesthetic pleasure. The female nude is also a sign of those other, more hidden properties of patriarchal culture, that is, possession, power, and subordination." Nead, The Female Nude: Pornography, Art, and Sexuality, 15 Signs 323, 326 (1990). The feminists have a point, even if it is overstated; a more neutral observer (criticized by Nead, id. at 332) has called Titian's Venuses "highly erotic and presumably highly effective pin-ups for the rich and powerful." Webb, supra, 131.

The reason we think that art is an intellectual medium and therefore has nothing important in common with striptease is that most of us obtain no enjoyment from art. It requires an educated taste to distinguish Venus With a Mirror from a camp photo of a fat woman. Knowing that it is a cultural monument we assume that its significance must be intellectual, since it is dead to most of us emotionally. But the painting is not an intellectual statement; there are no ideas in the painting. This would be even clearer if one were speaking of abstract rather than representational painting. There is pattern, design, harmony, and color in abstract painting, and these attributes evoke pleasure and other emotions in an appreciative viewer. But there is no story, no articulable idea, no verbal meaning. The notion that all art worthy of the name has a "message" is philistine, and leads to the weird conclusion that nonrepresentational art and nonprogrammatic, non-vocal music are entitled to less protection under the First Amendment than striptease dancing because the latter has a more distinct, articulable message. And likewise that Beethoven's string quartets are entitled to less protection than Peter and the Wolf.

I said earlier that nudity is a relative concept. The bare breast of Venus in Venus With a Mirror is tame stuff by modern standards and this tameness may lead us to downplay or even overlook the erotic element in the painting. If we consider instead the nudes of a great modern master, such as Balthus (Balthasar Klossowski), we cannot overlook the primacy of the erotic in nude painting. For examples, see Alice, Nude With a Cat, and The Room, in Rewald, Balthus 28, 117-19 (1984) (fig. 35 and pls. 31 and 32). Balthus's eroticism happens not to be of the innocent and wholesome variety; it is sinister, creepy, obsessed with the bodies of prepubescent girls (girls Lolita's age), "Freudian," at times sadistic. Balthus is a great artist whose artistic interest in the female body is prurient. Strauss's Salome--whose Dance of the Seven Veils is everyone's favorite example of constitutionally protected striptease--is a classic of fin de siecle decadence; it is surpassed in unwholesomeness only by Oscar Wilde's play Salome, which supplies the libretto for Salome, and by Aubrey Beardsley's illustrations for Salome. The difference between Balthus' presentation of the naked female body and that of the dancers at the Kitty Kat Lounge is that he is a great artist and they are undistinguished popular entertainers. It is not a difference in kind; it is not a difference between expressive and nonexpressive activity; it is not a difference between arty nudes and naked bodies. It is a difference in aesthetic quality, and while such differences can redeem obscene art, Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973), they cannot justify the suppression of the nonobscene.

Some paintings--Rembrandt's portraits, for example--we are inclined to call "profound." This usage is fine, provided we understand that the profundity in question is not intellectual but emotional. Here is a description of the self-portrait that Rembrandt painted in 1659 (Walker, supra, at 271 (pl. 357)), three years after he had declared bankruptcy. "He saw reflected [in the mirror from which he painted the portrait] a face lined with age and misfortune. He saw eyes which had searched more profoundly into the human soul than those of any other artist. He saw a mouth and chin weak, infirm of purpose, manifesting that flaw in his character which had ruined his life. His hands are grasped as though in anguish at the spectacle of a self-ruined man. There exists no painting more pitiless in its analysis or more pitiful in its implications." Id. at 270. "Analysis" is being used here in a special sense. There is nothing discursive, verbal, intellectual in the portrait. It is not a commentary on bankruptcy law, human weakness, or social injustice. It is the pictorial rendition of the emotions that a man in whom great talent is mixed with great weakness might feel. The mood is remote from that of Venus looking in her mirror but the difference has nothing to do with the epistemic character of these paintings. The difference between the intellectual and the emotional is not the difference between heavy and light. There are solemn emotions, and there are frivolous ideas.

The emotional element predominates in much verbal art as well as in most nonverbal art. When T.S. Eliot wrote

Highbury bore me. Richmond and Kew

Undid me. By Richmond I raised my

knees

Supine on the floor of a narrow canoe.

My feet are at Moorgate, and my heart

Under my feet. After the event

He wept. He promised 'a new start.'

I made no comment. What should I re

sent?

he was not expressing an idea; he was finding a form of words by which to convey the emotion of sexual revulsion. There is an analogy to the distinction in copyright law between idea and expression. Eliot could not have obtained copyright protection for any of the ideas that might be extracted from The Waste Land by paraphrase: in the passage I have quoted, the idea that sex is sordid and disgusting. He could obtain copyright protection only for the precise verbal form in which the idea was expressed. It is the expression that gives the idea impact, just as it is the dancing and the music and the stripping that give the nudity of the striptease dancer impact. The idea in itself is nothing--banal, undeveloped, mostly false--just as nudity in itself is nothing, or very little. These are just the materials from which the great writer or the popular entertainer makes the emotional brew that we call art or popular entertainment. In either case the artist's business is emotion, not ideas. Of one literary artist Eliot said, "He had a mind so fine that no idea could violate it." Henry James, in Selected Prose of T.S. Eliot 151 (Kermode ed. 1975).

One can argue from the text and background of the First Amendment that the constitutional protection of freedom of speech is limited to the discursive and the didactic, that nondidactic art should be totally excluded, or at the very least that low-grade erotic entertainment should be--the Founding Fathers would writhe in their graves if they knew that the nude dancers of the Kitty Kat Lounge could unwrap themselves with the First Amendment. And one can reply that such arguments merely demonstrate the inadequacy of original understanding as a guide to constitutional interpretation; that they would if accepted change the Constitution from a living document into a petrified reminder of the limits of human foresight; that a conception of free speech which privileges the burning of the American flag (Texas v. Johnson, --- U.S. ----, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)) but permits government to ban performances of twelve-tone music is more absurd than one that protects flag burning, twelve-tone music, and striptease; and that if the purpose and scope of the First Amendment's speech and press clauses are exhausted in the protection of political speech, because freedom of political speech is all that is necessary to preserve our democratic political system, this implies the exclusion from the amendment's protections not only of all art (other than the political) but also of science. For one can have democracy without science, just as one can have democracy without art.

The debate has been resolved--for judges at our level anyway, and for now anyway--by the decisions anatomized in Judge Flaum's opinion, particularly the Supreme Court's decision last term in Ward v. Rock Against Racism, --- U.S. ----, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (citations omitted):

Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored musical compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression and communication, is protected under the First Amendment. In the case before us the performances apparently consisted of remarks by speakers, as well as rock music, but the case has been presented as one in which the constitutional challenge is to the city's regulation of the musical aspects of the concert; and, based on the principle we have stated, the city's guidelines must meet the demands of the First Amendment.

The rock music in question had lyrics. But the Court's reference in the second sentence to music's appeal to the emotions, and its citation (omitted from the quotation) to an article about Soviet ambivalence toward Stravinsky--a composer primarily of nonvocal music--make it implausible to suppose that the Court thought it was speaking only of vocal music; and it did not say it was. In another decision the Court has said that "entertainment, as well as political and ideological speech, is protected" by the First Amendment. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981). This court has held that wordless music is speech within the meaning of the amendment. Reed v. Village of Shorewood, 704 F.2d 943, 950 (7th Cir.1983).

I am less interested in particular decisions than in fundamental principle. If the only expression that the First Amendment protects is the expression of ideas and opinions, then most music and visual art, and much of literature, are unprotected. This would be a shocking contraction of the First Amendment as it has come to be understood. If the only way to exclude nude dancing from the protection of the amendment is to exclude all nonpolitical art and literature as well, the price is too high. "A rule cannot be laid down that would excommunicate the paintings of Degas." Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 252, 23 S.Ct. 298, 301, 47 L.Ed. 460 (1903).

3. Maybe the price need not be paid; maybe "mere entertainment" is not constitutionally protected after all. The passage I quoted from Schad cannot have been meant literally. Anything that gives pleasure can be counted as entertainment, yet not everything that gives pleasure is expressive. I might find a display of northern lights entertaining; this would not make that display an expressive activity. However, while not all entertainment is expressive, some certainly is. Art is entertainment. Not only is much art created in order to entertain--Shakespeare's plays, for example--but art that was religious or political in its origins is today valued largely for its entertainment value. The Homeric epics and the religious art of the Renaissance are examples. For those who actually love art it is primarily as a superior form of entertainment and consolation that it is loved rather than as a source of insight or edification, although it often is that as well. So as a classification for use in applying the First Amendment, "entertainment" is both underinclusive and overinclusive. It includes things that the First Amendment cannot possibly be thought to include (such as the northern lights) and it excludes things--namely, most of art--that it is the whole purpose of the classification to include.

Still, can the First Amendment really be thought to cover all expressive entertainment? The example of bullfighting comes to mind. Bullfighting is an expressive activity and even has affinities to the dance. There is music, pageantry, elaborate costumes, the march of the toreadors, the dance-like steps with which the matador incites and parries the bull, the picadors on their splendidly caparisoned prancing horses. The whole is orchestrated and choreographed for maximum emotional impact; among the feelings conveyed are grace, courage, suffering, fear, beauty, cruelty, splendor, and machismo. Hemingway, Death in the Afternoon (1932). Bullfighting is more expressive, more artistic, culturally richer than the most popular American sports. Is it therefore protected by the First Amendment? It is not; the First Amendment no more forbids the prohibition of bullfighting than it does the prohibition of obscenity. There are many grounds for regulating and even prohibiting particular forms of expressive activity. In the case of bullfighting, the grounds are aversion to mutilating or killing animals for sport and also aversion to sports that are highly dangerous to the (human) participants. The Constitution does not place freedom of expression above all other values; it does not privilege gladiatorial contests any more than it privileges the employment of children to make pornographic movies. Nevertheless when government suppresses bullfights it is not suppressing mere "entertainment" that has little in common with ballet. They have a great deal in common. The difference between bullfighting and ballet has nothing to do with expressiveness; they are equally expressive, albeit of a different range of emotions. The pertinent difference is that ballet does not entail the torture and killing of animals or a high risk of injury or death to the dancers, and bullfighting does.

In calling bullfighting "expressive" I may seem to be implying, despite my disclaimer, that bullfighting must be protected by the First Amendment from regulation or suppression; for does not the amendment protect freedom of expression? I repeat that I do not believe that the First Amendment protects bullfighting. But I insist that bullfighting is an expressive activity. To deny this would be to play the unedifying semantic game of persuasive definition. Bullfighting is forbidden not because it is not expressive, but because in American society its harmful consequences are thought to outweigh its expressive value.

I said earlier that casual chit-chat, although an expressive activity, is not protected by the First Amendment. A public theater that ejects a patron for talking to his neighbor during the performance of a play does not commit a prima facie violation of the First Amendment. Perhaps, like casual social conversation, the striptease makes so little contribution to the marketplace of ideas that it can be suppressed even though it is an expressive activity formally akin to the highest forms of art. But here we risk being misled by metaphor. "Marketplace of ideas," useful short-hand though it is for the domain of the First Amendment, leaves out not only nude dancing but also the greater part of art, as well as much of politics, of journalism, of education, of philosophy, of law, and in short of nonscientific discourse generally, for such discourse is heavily rhetorical, emotive. To observe that ordinances forbidding nude dancing in bars "do not prohibit an exchange of ideas which might tend to bring about political or social change," Yauch v. State, 109 Ariz. 576, 579, 514 P.2d 709, 712 (1973), or that "it is difficult to conceive of ideas entitled to First Amendment protection which can be solely--or even best--expressed by baring the anus or genitals," Kew v. Senter, 416 F.Supp. 1101, 1105 (N.D.Tex.1976), is correct; it just misses the point. Art and popular entertainment are not awkward or failed attempts to communicate ideas, and the protection of the First Amendment is not limited to ideas.

Once the relevant marketplace is understood to include expressive activity concerned with the emotions as well as expressive activity concerned with ideas--to include narrative, imagery, rhetoric, and design, as well as discursive prose--it becomes evident that erotic performances are a major component of the First Amendment marketplace, while social conversation, ballroom dancing, and other "audience of one" communicative activities are a minor component. Granted, the suppression of one genre of erotic art, the striptease, would not truncate the marketplace greatly. But lest its suppression turn out to be the first step on the road back to the institutionalized puritanism of Cromwell's reign--during which all theatrical performances, including performances of Shakespeare's plays, were prohibited--we need a principled ground for distinguishing the striptease (or some subcategory of striptease typified by the dances at the Kitty Kat Lounge) from other forms of nonobscene erotic expression. None has been suggested. At argument, the lawyer for the State of Indiana proposed to limit the protected category to "established" works of art. This approach would have excluded Manet's great work Dejeuner sur l'herbe, in which a naked woman is depicted picnicking with two fully clothed men; far from being an established work of art when it first burst on the art scene in 1863, it caused a scandal.

Although much of today's high culture began as popular entertainment, the likelihood that the videotape of the Kitty Kat stripteases will one day achieve the cultural renown of Dejeuner sur l'herbe is vanishingly close to zero. Anyone who doubts this is carrying relativism and skepticism too far. But aesthetic quality cannot be the standard that judges use to determine which erotic performances can be forbidden and which cannot be. There are no objective standards of aesthetic quality, and while we allow obscene works to be "redeemed" by "evidence" of aesthetic quality, it hardly follows that we should allow works that are not obscene to be condemned on the basis of evidence suggesting a lack of aesthetic quality. On the contrary, the fact that the law protects obscene art attests to a justified modern anxiety about censorship. The practical effect of letting judges play art critic and censor would be to enforce conventional notions of "educated taste," and thus to allow highly educated people to consume erotica but forbid hoi polloi to do the same. The robust paternalism and class consciousness that once permitted such a distinction have lost their legitimacy. The music held constitutionally protected in Reed v. Village of Shorewood was rock and roll. The Constitution does not look down its nose at popular culture even if its framers would have done so. Salem Inn, Inc. v. Frank, 522 F.2d 1045 (2d Cir.1975). "[T]he taste of any public is not to be treated with contempt. It is an ultimate fact for the moment, whatever may be our hopes for a change." Bleistein v. Donaldson Lithographing Co., supra, 188 U.S. at 252, 23 S.Ct. at 301. As applied by the district court in this case, the Indiana statute with its judge-made exception for "expressive" nudity discriminates between upper-class and lower-class nonobscene erotica. The First Amendment forbids this kind of discrimination.

I have been assuming that the line between expressive (in the sense of communicative) activity and nonexpressive activity is distinct. It is not. Wright, supra, at 166-68. There are some clearly expressive activities and some clearly nonexpressive ones but there is also a vast gray area populated by street performers who swallow swords or walk on glowing coals or guess people's ages or weights, by people who wish to make a "statement" by dressing outlandishly, by creators of video games, by contestants in dance marathons, and so on without end. The government has a greater scope for regulation in the gray area. Maybe, indeed, that area could be regarded as outside the boundaries of the First Amendment (de minimis non curat lex ), in which event the only constitutional constraints would be those very loose ones that the due process clause places on harmless liberties not involving the exercise of freedom of expression. Swank v. Smart, supra, 898 F.2d at 1251-52. In claiming that expression is a continuum I am not contending that the boundaries of the First Amendment must be left utterly elastic. It is desirable to have some First Amendment rules and not leave everything to be governed by standards and sliding scales. Put more precisely, standards and sliding scales can be used to precipitate out rules, and have been used in this way. The rule that social dancing is not an activity protected by the First Amendment, and the rule that social conversation is not, are crystallizations of a process of weighing the relevant policies and values to determine the amendment's appropriate scope. Another sensible First Amendment rule might be that government has carte blanche to regulate dangerous sports, irrespective of the expressive content of some of those sports; that would take care of bullfighting. There may be room for rules about public nudity as well. What is indefensible is to set up "entertainment" as a category of activities, distinct from "art," that government can regulate without regard to the First Amendment. Or to suppose--unless one is prepared to deprive most art of constitutional protection--that there is a rational conception of "expression" that places striptease dancing on the nonexpressive side of the divide.

4. If the line between the expressive and the nonexpressive is indistinct, the "line" between speech and conduct, between live performances and performances on paper, videotape, or compact disc, is a blur. (This case is a symphony of sterile dichotomies.) Normally, although not always, the medium in which experience is encoded is irrelevant to its expressive character and social consequences. The pitter-patter of raindrops does not become expressive activity by being recorded, and a recording of Beethoven's Ninth Symphony is not entitled to more constitutional protection than the live performance from which the recording was made. The government could not shut down the theaters on the ground that what actors do is conduct, not speech, with the result that a production of King Lear by the Royal Shakespeare Company would be outside the scope of the First Amendment but a nonobscene pornographic movie within it.

There are exceptions to the parity of the live and the canned performance. A murder intended as a political demonstration is illegal; a movie in which a murder is simulated is not. The reason is not that one is conduct and one speech, but that the conduct involved in the two performances is different. In the first, a person is killed; no one is killed or injured in the second. It is on this theory that child pornography, even if not legally obscene, can constitutionally be suppressed. New York v. Ferber, 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982); Osborne v. Ohio, --- U.S. ----, ---- - ----, 110 S.Ct. 1691, 1695-98, 109 L.Ed.2d 98 (1990). Speech is suppressed in order to get at the underlying conduct, the employment of children to make pornography. So might a state prohibit photographs of sex acts performed by persons paid to perform them; speech would be suppressed to get at the underlying conduct, a variant of prostitution. People v. Freeman, 46 Cal.3d 419, 250 Cal.Rptr. 598, 758 P.2d 1128 (1988); State v. Kravitz, 14 Or.App. 243, 511 P.2d 844 (1973). The striptease dancers in our case are not children and are not engaging in sex acts, and although it might be possible to distinguish between live and canned nude dancing on the ground that in the former the dancers are accessible to the audience, Indiana has disclaimed any such distinction as a basis for upholding its statute.

The true reason I think for wanting to exclude striptease dancing from the protection of the First Amendment is not any of the lawyers' classification games that I have been discussing, such as expression versus nonexpression, ideas versus emotions, art versus entertainment, or speech versus conduct. It is a feeling that the proposition, "the First Amendment forbids the State of Indiana to require striptease dancers to cover their nipples," is ridiculous. It strikes judges as ridiculous in part because most of us are either middle-aged or elderly men, in part because we tend to be snooty about popular culture, in part because as public officials we have a natural tendency to think political expression more important than artistic expression, in part because we are Americans--which means that we have been raised in a culture in which puritanism, philistinism, and promiscuity are complexly and often incongruously interwoven--and in part because like all lawyers we are formalists who believe deep down that the words in statutes and the Constitutions mean what they say, and a striptease is not a speech. But the element of the ridiculous is not all on one side. Censorship of erotica is pretty ridiculous too. What kind of people make a career of checking to see whether the covering of a woman's nipples is fully opaque, as the statute requires? (These statutes are full of absurd locutions, such as: " 'Wholly or substantially exposed to public view,' as it pertains to breasts, shall mean...." Chattanooga Ord. No. 7420, Sec. 25-28.2(b), quoted in City of Chattanooga v. McCoy, supra, 645 S.W.2d at 401.) Most of us do not admire the Islamic clergy for their meticulous insistency on modesty in female dress. Many of us do not admire busybodies who want to bring the force of law down on the heads of adults whose harmless private pleasures the busybodies find revolting. The history of censorship is a history of folly and cruelty.

Some two-party transactions have effects on third parties, and these effects are a proper object of public concern. Nonobscene displays of nudity can have such effects. Piarowski v. Illinois Community College Dist. 515, 759 F.2d 625 (7th Cir.1985), held that a public college could move an offensive although not obscene artistic display to a more discreet location where the display would not thrust itself on the unwilling viewer. Indiana can forbid the Kitty Kat Lounge to display photographs of its nude dancers on its marquee. But it cannot ban the dancing itself (when performed indoors, and not visible from the street) without a stronger showing of justification than it has attempted. Indeed, it has attempted none--which brings me to the brief and argument of the State of Indiana.

The brief is four and one-half double-spaced pages in length, and is replete with grammatical and typographical errors. It contains no explanation of the evil at which the statute is aimed, and its analysis of the constitutional question is limited essentially to the following passage: "Entertainment which did not contain expressive content--e.g., cockfighting or bear-baiting--could presumably be regulate [sic ] or prohibited by the States. Entertainment per se is not protected; entertainment that is a form of expression is." It is not obvious, however, that just because people can be forbidden to incite animals to kill each other, striptease dancers can be forbidden to remove all their clothing. There is a missing link between blood sports and erotic dancing that the brief does not attempt to supply. A psychiatrist might find the juxtaposition fascinating.

Asked at argument to explain the concern behind the statute--a pertinent question because there is no legislative history, and the Indiana decisions interpreting the statute do not explain its purpose beyond vague references to public decency--the state's lawyer first suggested that the purpose might be the protection of marriage. But recalling the divorce rate in this country he quickly added that that battle had already been lost and he switched his ground to the prevention of adultery. This is far-fetched and was not elaborated.

A related and more plausible concern that may lurk behind the statute is fear that striptease dancing in bars stimulates or facilitates prostitution. (Is the Kitty Kat Lounge in the red-light district of South Bend? Does South Bend have a red-light district? The record is silent on these questions.) The association between erotic dancing and prostitution goes back to Roman times; bump-and-grind dancing is said to have originated in the bordellos of the Wild West; and in California v. La Rue, 409 U.S. 109, 111, 93 S.Ct. 390, 393, 34 L.Ed.2d 342 (1972), the Supreme Court, in upholding under the Twenty-First Amendment a California statute restricting nude dancing, cited evidence that nude dancing in California bars had encouraged prostitution and other lewd conduct. See also United States v. Muskovsky, 863 F.2d 1319, 1321 (7th Cir.1988); Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 950-51 (11th Cir.1982). The State of Indiana has never mentioned this evidence, however, let alone presented its own. Anyway the Indiana statute is not confined to bars. Although thus far I have discussed only the dancing at the Kitty Kat Lounge, because that is the only dancing that was videotaped for this case, the other plaintiff, Glen Theatres, owns a theater rather than a bar. The statute has been held to apply to theaters as well. Erhardt v. State, 468 N.E.2d 224 (Ind.1984), reversing 463 N.E.2d 1121 (Ind.App.1984). If it were confined to establishments where liquor is sold, Indiana could appeal to the broad regulatory powers that states enjoy by virtue of section 2 of the Twenty-First Amendment, which forbids the transportation of alcoholic beverages into any state in violation of the state's laws. California v. La Rue, supra; New York State Liquor Authority v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) (per curiam); Reed v. Village of Shorewood, supra, 704 F.2d at 950-51. The Supreme Court of North Dakota relied on that amendment in upholding an ordinance forbidding all dancing in places where liquor is served. Olson v. City of West Fargo, 305 N.W.2d 821, 827 (N.Dak.1981).

Why the Twenty-First Amendment, the aim of which was to repeal Prohibition without eliminating state authority over the sale of liquor, should be thought to curtail the scope of the First Amendment is an abiding mystery of constitutional interpretation. The question is foreclosed at our level of the judiciary, however, and may in any event have little practical significance. For even if there were no Twenty-First Amendment, government would have greater scope for regulating expressive activity in bars than in theaters without violating the First Amendment. The audience is smaller, attentiveness is less, the expressive element diluted, and in short the social costs of restriction are lower. There are indications that the Supreme Court would be receptive to a ruled based on such distinctions, California v. La Rue, supra, 409 U.S. at 118, 93 S.Ct. at 397; New York State Liquor Authority v. Bellanca, supra, 452 U.S. at 722-23, 101 S.Ct. at 2603-04 (Stevens, J., dissenting), despite the social, cultural, and even political importance of cabaret entertainment. Segel, Turn-of-the-Century Cabaret (1987). And while in one sense the Indiana statute imposes an outright ban on an expressive activity rather than merely regulating it, in another sense the statute is a mere, and indeed modest (pun intended), regulation. The statute does not ban striptease dancing; it bans only striptease dancing that ends in nudity, which is so narrowly defined that a woman wearing only tiny "pasties" and a G-string is considered clothed. So perhaps it is merely the manner of the striptease that is being regulated, and regulations of the time, place, and manner of expressive activity are treated more leniently than outright bans.

But set to one side this question of which pigeonhole to put the statute in; it is another example of the frequent sterility of efforts at legal classification. Cf. Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1398-99 (D.C.Cir.1990) (concurring opinion). Instead consider the issue in functional terms. The incremental expression associated with the movement from practical nudity to statutory nudity may well be slight, and the association of nude barroom dancing with prostitution may be a good enough reason for outlawing that increment to tip the balance in favor of a rule prohibiting nude dancing in bars but not in theaters, where the performers do not mingle with the customers. But that is not the approach of the Indiana statute. The statute does not distinguish between bars and theaters, and this omission, taken with the failure of the state in its briefs or at argument to mention prostitution, should make one skeptical that anxiety about prostitution is what animates it. Moreover, it is the striptease itself that the district judge found not to be expressive activity, not just the final step of baring all. I add that despite the appeal of incremental analysis in this as in other settings, it would violate the First Amendment to require museums to place figleaves and brassieres on their paintings and statues. Perhaps the Indiana statute effects a parallel mutilation of striptease dancing.

If we were dealing with a local ordinance, or a state statute authorizing local ordinances, the case for regulation would be strengthened. Even if one accepts the current view that the Fourteenth Amendment makes the prohibitions of the First Amendment fully applicable to the states and its subdivisions, the geographical scope of a restriction on expressive activity bears on the reasonableness of the restriction. Prostitution is a local problem, so the case for banning nude dancing in bars in order to reduce the incidence of prostitution will be stronger or weaker depending on local conditions. Moreover, an ordinance is less restrictive than a statute. It not only affects fewer people (on average--for some cities are more populous than some states); it restricts them less. It is cheaper to travel to a nearby town for erotic entertainment than to another state.

In sum, while a local ordinance forbidding nude dancing and other nude performances in bars would be constitutionally unproblematic (nonexpressive public nudity in bars as in other places would fall under the legitimate ban of the state's statute) and would take care of the only social problem plausibly associated with nude dancing, a statewide ban on such dancing, applicable to theaters as well as to bars, violates the First Amendment. It is not saved by an exception for expressive dancing, when the exception excludes striptease dancing, which is expressive whether or not one likes what is being expressed. The intermediate regulation would be a statewide statute forbidding nude dancing (and other nude performances) in bars only; such a statute would be constitutional by virtue of the Twenty-First Amendment as it has been interpreted.

Can the application of the statute to dancing in theaters as well as in bars be saved by reference to the "general effect" of a regulation that restricts speech incidentally? United States v. Albertini, 472 U.S. 675, 688-89, 105 S.Ct. 2897, 2906-07, 86 L.Ed.2d 536 (1985). In Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), the issue was the legality of a regulation of the National Park Service that forbade sleeping over in a number of the parks managed by the Service, including Lafayette Park in Washington, D.C., opposite the White House. No one questioned the validity of the regulation as such, but it was argued that the First Amendment forbade enforcing the regulation against a group that wanted to sleep over in Lafayette Park in order to make a symbolic statement about the problem of homeless people. The Supreme Court upheld the enforcement of the regulation even though in the particular case the balance between the values of expressive "speech" and those of cleanliness and order may well have inclined in favor of speech. The Park Service was not required to make an exception for the Community for Creative Non-Violence. Id. at 296-97, 104 S.Ct. at 3070-71. By analogy it can be argued that the State of Indiana is not required to make an exception to its ban on public nudity merely because the persons clamoring for the exception wish to employ nudity as an element of expressive activity.

Albertini and Clark make clear that persons engaged in expressive activity have no constitutional entitlement to be exempted from laws of general applicability. Authors cannot claim an exemption from income tax or publishers an exemption from the labor laws. This result is sound; and while it may be in tension with the principle derived from the free-exercise clause of the First Amendment that government must accommodate its laws of general applicability to the special needs of religious minorities, Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963); Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 (1987); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972), that principle is moribund after Employment Division v. Smith, --- U.S. ----, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990). But the teachings of Albertini and Clark are inapplicable here. The regulations involved in those cases did not ban a particular form of expressive activity across the board but merely excluded it from certain public property (military bases in Albertini, certain public parks in Clark ). And the harm to the policies behind the regulations was unaffected by the expressive character of the activities affected by them. In Clark for example, the damage to the parks was the same whether the sleepers were camping out for fun, were in fact homeless, or wished by sleeping in the park to make a symbolic statement on behalf of the homeless. In contrast, whatever interest Indiana is trying to safeguard by banning public displays of nudity is not harmed by theatrical--perhaps not even by nightclub--performances featuring nudity. The harm done to public order by a performance of Salome in which Salome ends the Dance of the Seven Veils clad only in a transparent body stocking and therefore nude under Indiana law--as in a performance last fall at the Lyric Opera in Chicago--is not of the same order of magnitude as the harm (in fright, disgust, or embarrassment), slight as it may be, caused by a person who runs down the middle of a busy street stark naked or urinates in an alley. Only in the latter cases does the concept of public decency supply a persuasive rationale for punishment.

The bearing of Albertini and Clark on the present case is in any event academic. The defendants have not attempted to defend the district court's decision on the ground that all that is involved here is a refusal by Indiana to make an exception to a general prohibition of public nudity; they have not cited Albertini or Clark; they have waived the point. We can with propriety affirm a district court's decision "on any ground that the record fairly supports and the appellee has not waived," Martinez v. United Automobile Workers, 772 F.2d 348, 353 (7th Cir.1985); LaSalle National Bank v. General Mills Restaurant Group, Inc., 854 F.2d 1050, 1052 (7th Cir.1988), but the second condition is not satisfied here. "A point raised for the first time at oral argument, when the appellant is in no position to reply, comes too late. We do not allow an appellant to raise new issues in the reply brief; perforce the appellee may not raise new issues at oral argument." United States v. Rodriguez, 888 F.2d 519, 524 (7th Cir.1989) (citation omitted). The appellees here never raised the issue.

Furthermore, whether or not required to do so by the First Amendment, Indiana has carved an exception to its public-decency statute for expressive activity. By interpreting the exception narrowly and thus the statute broadly, the district judge made the statute discriminate against a particular form of expressive activity--the "low" form represented by striptease dancing. And this a state surely cannot do without a reason.

The points about waiver and about the state's int