In addressing the issue before us, we recognize that we are not writing on a clean slate. 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. 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. And we are not concerned with any alleged overbreadth problems that issue has already been resolved by this Court. It also does not concern whether these establishments are "public places" under the statute the plaintiffs acknowledge that they are. This case does not concern obscenity, as the State has conceded that the dancing involved is non-obscene. We stress from the outset the limited scope of our inquiry today. 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.
Violation of the statute is a Class A Misdemeanor. The statute, IND.CODE 35-45-4-1, on its face provides for a total ban on nudity in public places. 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.
Plaintiffs Darlene Miller, Gayle Sutro and Carla Johnson are dancers who wish to engage in such activity. Plaintiff Glen Theatre, an establishment which does not serve alcoholic beverages, similarly provided nude dancing as entertainment. 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. The underlying facts of this matter are uncontested. The extensive substantive and procedural history of this case is adequately discussed in our vacated opinion and we need not repeat ourselves here.
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