Indiana’s public indecency statuteprohibits any person from appearing nude in a public place. A nightclub called the Kitty Kat Lounge, and several dancers who wished to perform nude, filed suit, seeking an order that the statute was unconstitutional. The United States District Court ruled that the dancing was not expressive conduct. The Court of Appeals reversed, declaring that it was nonobscene expressive conduct and thus protected by the First Amendment. Indiana did not argue that the dancing was obscene. (If that were the issue, the Miller test would have determined the outcome.) Instead, Indiana claimed that its general police powers, including the power to protect social order, allowed it to enforce such a statute.

1. Does Indiana’s public indecency statute violate the First Amendment?

2. What are a state’s “police powers?”

3. Is it important that Indiana did not argue that the dancing was obscene?

4. What specific purpose did the Indiana statute serve?

5. Doesn’t a state law that interferes with expression require strict scrutiny?