Miller v. Civil City of South Bend , 904 F.2d 1081 ( 1990 )

EASTERBROOK, Circuit Judge,

with whom MANION and KANNE, Circuit Judges, join, and with whom COFFEY, Circuit Judge,

joins with respect to Parts I and III, dissenting.

Our court brands as unconstitutional a state law forbidding anyone to “[a]ppear[ ] in a state of nudity” in a “public place”. Ind.Code § 35-46-4-l(a)(3). The Supreme Court has sustained the application of this statute to bars. State v. Baysinger, 272 Ind. 236, 397 N.E.2d 580 (1979), appeal dismissed for want of a substantial federal question, 446 U.S. 931, 100 S.Ct. 2146, 64 L.Ed.2d 783 (1980). The last time the case was here, we observed that Baysinger did not present a contention that barroom dancing is protected “expression”, and we remanded so that the district judge could determine whether the dancers express something. 802 F.2d 287 (7th Cir.1986). He found that they do not. 695 F.Supp. 414 (N.D.Ind.1988). Today the court holds that expression is unnecessary, that all dance as entertainment is protected unless obscene.

I

Indiana does not regulate dancing. It regulates public nudity. The difference is dispositive for constitutional purposes even if one accepts the majority’s conclusion that dancing is speech (the subject of Part II below). Nudity is conduct. Laws regulating conduct may apply to expression without violating the First Amendment. Almost the entire domain of Indiana’s statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech. Unclothed dancing is a tiny fraction of the ambit of the rule, and what plaintiffs need is an exemption from a well-justified norm.

Conduct that plays a role in expression is not exempt from neutral regulation. Persons sought to sleep in the park, see Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (CCNV), to convey a message about homelessness. Nonetheless, the Court held, the Park Service may apply its regulation forbidding camping. Regulation of conduct is acceptable if it furthers an important interest that is “unrelated to the suppression of free expression”. United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). See also, e.g., FTC v. Superior Court Trial Lawyers Ass’n, — U.S. —, 110 S.Ct. 768, 778-79, 107 L.Ed.2d 851 (1990); United States v. Albertini, 472 U.S. 675, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985). Burning a draft card in O’Brien, sleeping in CCNV, entering a military reservation in Albertini, boycotting criminal defense work in Superior Court Trial Lawyers, all were done to send a political message; although politics are the heart of the First Amendment, all of these messages were held subject to viewpoint-neutral regulation of the conduct. Cf. University of Pennsylvania v. EEOC, — U.S. —, 110 S.Ct. 577, 587-88, 107 L.Ed.2d 571 (1990) (EEOC may have access to university’s tenure files under rules of general application notwithstanding possible burden on speech).

Indiana’s reasons for prohibiting public nudity are “unrelated to the suppression of free expression”. Its interest in attire is at least as great as the Park Service’s interest in regulating catnaps, the subject of CCNV. Indiana need not prove that its interest in clothing is vital to welfare, or disprove the plaintiffs’ assertion that an exemption for barroom dancing would be harmless: “The First Amendment does not bar application of a neutral regulation that incidentally burdens speech merely because a party contends that allowing an exception in the particular case will not threaten important governmental interests.” Albertini, 472 U.S. at 688, 105 S.Ct. at 2906. The state’s burden is especially light because the plaintiffs do not seek to transmit any message.

If Indiana forbade nudity only when employed in dance, then it would have a tough row to hoe. A dance-only law would be a regulation of expression if, as my colleagues believe, dance is speech. Regulation of expression faces high hurdles. The concurring opinion has things backwards in suggesting, concurring op. 1102, that a local law drawing a bead on nude dancing is easier to sustain than a state-wide ban on public nudity. If Indiana had targeted dancing, as the majority supposes, majority op. 1088 n. 7, I would be more sympathetic to its conclusion — although even then the state might have the power. States may prevent corporations from supporting candidates for public office, Austin v. Michigan Chamber of Commerce, — U.S. —, 110 S.Ct. 1391, 108 L.Ed.2d 652 (1990). Can it be that nude dancing at the corporation’s tavern has greater constitutional protection than the firm’s political speech?

But Indiana didn’t try to clamp down on dancing because of what it expresses. Erotic dance occurs at plaintiffs’ establishments daily, without hindrance from Indiana. The state bans public nudity and no more. Streakers, flashers, mooners, nymphs who want all-over tans, and models wearing see-through blouses at trade shows to attract attention to machine tools are subject to the same rules. The law has nothing to do with the expression or viewpoint of the undressed person. On the supposition that nude dancing is “speech”, this is dispositive. Under CCNV, Superior Court Trial Lawyers, and like cases, the state need not justify failure to exclude nude dancing from its general law directed to public nudity.

The concurring opinion maintains, op. 1103, that Indiana’s law is not neutral because the Supreme Court of Indiana held in Baysinger that the statute does not apply to speech. This approach would do away with the entire line of cases following O’Brien. A decision saying that a statute does not apply to protected expression recognizes the supremacy of the Constitution over state law; to acknowledge a limit the Constitution imposes on legislation is not to abandon the generality of the law. The rules concerning use of the parks at issue in CCNV had exceptions too; the Park Service did its best to accommodate expression, allowing the erection of symbolic tent cities, but drew the line at sleeping (which triggered the regulation forbidding “camping”). Government does not forfeit its entitlement to enforce laws regulating conduct by attempting to facilitate the expression of ideas.

Cases often say that regulation of conduct will be sustained when the governmental interest is sufficiently “important”. Members of the majority say that Indiana’s interest in clothing is tissue-thin. No case in the Supreme Court turns on a conclusion that the government’s interest is inadequate. Whether judges should conduct such an inquiry at all when a neutral statute affects “expression” rather than “speech” is a question yet to be resolved. Judge Scalia’s opinion in CCNV, which the Court cited approvingly in Texas v. Johnson, — U.S. —, 109 S.Ct. 2533, 2540, 105 L.Ed.2d 342 (1989), answers this question “no”, and his assessment is persuasive.

I start from the premise that when the Constitution said “speech” it meant speech and not all forms of expression. Otherwise, it would have been unnecessary to address “freedom of the press” separately — or, for that matter, “freedom of assembly,” which was obviously directed at facilitating expression. The effect of the speech and press guarantees is to provide special protection against all laws that impinge upon spoken or written communication (which I will, for the sake of simplicity, refer to generically as “speech”) even if they do so for purposes that have nothing to do with communication, such as the suppression of noise or the elimination of litter. But to extend equivalent protection against laws that affect actions which happen to be conducted for the purpose of “making a point” is to stretch the Constitution not only beyond its meaning but beyond reason, and beyond the capacity of any legal system to accommodate.

The cases find within the First Amendment some protection for “expressive conduct” apart from spoken and written thought. The nature and effect of that protection, however, is quite different from the guarantee of freedom of speech narrowly speaking. It involves a significantly different balancing of private rights and public interests, and does not always call for the detailed “First Amendment analysis” characteristic of the speech cases.... Specifically, what might be termed the more generalized guarantee of freedom of expression makes the communicative nature of conduct an inadequate basis for singling out that conduct for proscription. A law directed at the communicative nature of conduct must, like a law directed at speech itself, be justified by the substantial showing of need that the First Amendment requires. But a law proscribing conduct for a reason having nothing to do with its communicative character need only meet the ordinary minimal requirements of the equal protection clause. In other words, the only “First Amendment analysis” applicable to laws that do not directly or indirectly impede speech is the threshold inquiry of whether the purpose of the law is to suppress communication. If not, that is the end of the matter so far as First Amendment guarantees are concerned; if so, the court then proceeds to determine whether there is a substantial justification for the proscription, just as it does in free-speech cases.

Thus, the First Amendment’s protection of free speech invalidates laws that happen to inhibit speech even though they are directed at some other activity (sound amplification, campaign contributions, littering). The more limited guarantee of freedom of expression, by contrast, does not apply to accidental intrusion upon expressiveness but only to purposeful restraint of expression. It would not invalidate a law generally prohibiting the extension of limbs from the windows of moving vehicles; it would invalidate a law prohibiting only the extension of clenched fists.

Community for Creative Non-Violence v. Watt, 703 F.2d 586, 622-23 (D.C.Cir.1983) (en banc) (Scalia, J., dissenting) (emphasis in original, footnotes omitted), reversed, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

Although the Court has not considered Judge Scalia’s proposal for speech cases, it has adopted these views with respect to another part of the First Amendment, the Free Exercise Clause. Employment Division v. Smith, — U.S. —, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), holds that courts may not “balance” the public interest in the application of a statute neutral with respect to belief against the private party’s interest in engaging in the forbidden activities. It wrote that the “government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, ‘cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.’ ” Id. at —, 110 S.Ct. at 1603, quoting from Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439, 451, 108 S.Ct. 1319, 1326, 99 L.Ed.2d 534 (1988). Because the statute at hand forbade use of peyote without regard to smoker’s motive, the Court held that there was no need even to consider how important the practice was to religion. Neutrality may not be a necessary condition of constitutionality, but it is a sufficient one.

So here. If we ask whether “the purpose of [Indiana’s anti-nudity] law is to suppress communication”, we must answer no. Ind.Code § 35-45-4-l(a)(3) has nothing to do with speech, with expression, or with dancing — ballet, ballroom, or barroom varieties. It is indifferent to whether there is a message, or to the viewpoint expressed by any message. It prohibits public nudity, leaving speakers ample methods to convey thoughts of all kinds. Laws preventing prostitution (sex for money) apply even if someone wants to film the act and use it in protected expression, as laws against bank robbery and murder mean that producers of Bonnie and Clyde had to fake robberies and deaths rather than shoot real ones. See American Booksellers Ass’n v. Hudnut, 771 F.2d 323, 330, 332 (7th Cir.1985), affirmed, 475 U.S. 1001, 106 S.Ct. 1172, 89 L.Ed.2d 291 (1986). In the same fashion, laws against public nudity apply even if someone wishes to use nudity as an input into an expressive performance.

The concurring opinion observes, op. 1103, that Indiana did not rely on O’Brien, CCNV, Albertini, and similar cases. Usually that means waiver. The state loses its battle with Darlene Miller but retains the right to make its best arguments against other hoofers tomorrow. Yet neither the majority nor the concurrence grants the state this quarter. Both reject on the merits any possibility that Ind.Code § 35-45-4-l(a)(3) is a neutral regulation of conduct. If we are to decide the O’Brien question rather than deem it waived, we should recognize that this line of cases vindicates Indiana’s statute.

II

The majority writes for the most part as if Indiana had a law that zeroed in on the salacious aspects of nude dancing. Even such a statute, however, would be within its constitutional powers, for dancing is not “speech”.

A

The court concludes that “non-obscene nude dancing performed as entertainment is expression and as such is entitled to limited protection under the first amendment”, majority op. 1085. This dispenses with expression as an ingredient of speech, for the district judge found that there is no expression in these dances. With respect to plaintiff Miller, who dances at JR’s Kitty Kat Lounge, the judge concluded:

When she dances, Ms. Miller perceives herself as “just entertaining, just dancing”. The avowed purpose of her dance is to try to get customers to like her so that they will buy more drinks later.

Judge Sharp also adopted Judge Miller’s findings concerning a similar act in the neighboring Ace-Hi Lounge:

Ms. Jacobs dances for fifteen to twenty minutes as a juke box plays four songs. She buys outfits to wear when she dances, but her act consists of removing the outfits. Her act features no choreography; she simply takes the stage and dances. Ms. Jacobs believes she entertains the patrons in the establishment: they come in to see her, they applaud, they buy her drinks in appreciation of her performance. Her pay depends upon the number of drinks purchased, and she must sell a certain number of drinks to be paid.

Although characterization in First Amendment cases is open to reexamination on appeal, Bose Corp. v. Consumers Union, 466 U.S. 485, 499, 104 S.Ct. 1949, 1958, 80 L.Ed.2d 502 (1984); Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 54, 91 S.Ct. 1811, 1825, 29 L.Ed.2d 296 (1971) (plurality opinion); American Jewish Congress v. Chicago, 827 F.2d 120, 129-30 (7th Cir.1987) (dissenting opinion), findings of historical fact must be respected. Especially when the parties agree that they are correct. Miller’s lawyer conceded at oral argument that she was not trying to express anything. Counsel stated:

[Tjhere is not a larger political or ideological statement being made. I do not contend for a second that that is true.... I do not contend that there is some idea being expressed. We have said that in keeping with the language of the United States Supreme Court in Schad, that entertainment as well as political and ideological speech enjoys First Amendment protection. That’s all we have ever said.

The court does not re-characterize the facts so much as say they are immaterial because dance is “inherently expressive” (maj. op. 1085). To the extent this means that professional choreography and staging are not essential, I agree. To the extent we ask what something is “inherently”, rather than whether real people are trying to communicate, I part company with the court because it effectively holds that all purposive conduct is speech. “Although it is common to place the burden upon the Government to justify impingements on First Amendment interests, it is the obligation of the person desiring to engage in assertedly expressive conduct to demonstrate that the First Amendment even applies. To hold otherwise would be to create a rule that all conduct is presumptively expressive.... [W]e decline to deviate from the general rule that one seeking relief bears the burden of demonstrating that he is entitled to it.” CCNV, 468 U.S. at 293 n. 5, 104 S.Ct. at 3069 n. 5.

B

The First Amendment protects “the freedom of speech”. Go-go dancing is not “speech”. James Madison would have guffawed had anyone suggested public nudity as an example of “freedom of speech” — or of anything that could be derived from the Framers’ conception by a series of plausible interpretations. Parading in a state of undress is conduct, not speech. Even Justices Black and Douglas, who thought the First Amendment absolute, rendering all efforts to curtail obscene speech unconstitutional, drew the line here. Dissenting in Roth v. United States, 354 U.S. 476, 512, 77 S.Ct. 1304, 1323, 1 L.Ed.2d 1498 (1957), Justice Douglas (joined by Justice Black) remarked: “I assume there is nothing in the Constitution which forbids Congress from using its power ... to proscribe conduct on the grounds of good morals. No one would suggest that the First Amendment permits nudity in public places, adultery, and other phases of sexual misconduct.” (Emphasis in original.) What these absolutists gave as a reductio ad absur-dum, the court today holds the First Amendment commands.

“Speech” is of course one form of conduct, the creation and dissemination of oral and written symbols. Other forms of conduct also convey ideas. So there is no bright line between conduct and speech, and laws regulating conduct may impede communication. What to do? The standard response is that “conduct” is treated as “speech” when it conveys a message, and regulation of this conduct fails when its application depends on that message. E.g., Johnson; Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). These are separate inquiries: first the conduct must be designed to express something, and second the lav/’s effect must turn on the viewpoint expressed. Applying a law banning nudity to striptease dancing does not create problems on either branch. Part I showed that Indiana’s rule does not depend on viewpoint. Much closer is the question whether the plaintiffs’ dances express something, to which I turn.

C

Communication is a subset of the universe of human behavior. “The protection given speech and press was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.” Roth, 354 U.S. at 484, 77 S.Ct. at 1308. “Speech” cannot be synonymous with purposive conduct, else the First Amendment means that “Congress shall make no law ... abridging the freedom of conduct” — or, for short, “Congress shall make no law”.

My colleagues take a wrong turn in discussing works of art, pictures in books, and other forms of communication. These are not “conduct”. Although the Framers drafted a rule to govern political speech, see Leonard W. Levy, Emergence of a Free Press (1985); Alexander Meikeljohn, Free Speech and its Relation to Self Government (1948), for a long time (and for good reasons) judges have equated political and frivolous books, paintings, music, and other works of the mind that have been committed to parchment (or canvas, or celluloid, or vinyl, or today pitted aluminum on plastic). Rock music, Penthouse magazine, and “slasher” movies are speech; we needn’t ask whether they are conduct plus expression. One need not divine the message of a painting to separate the conduct from the speech; there is no “conduct” in it. In order to protect genuine speech from the censor, the definition of “obscenity” allows little room for regulation. Conduct may be regulated although not obscene. Our problem involves conduct, and to know whether to treat conduct as speech we must ask whether it shares the communicative aspect that led to the protection of real speech.

“In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play, we have asked 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 viewed it.’ ” Johnson, 109 S.Ct. at 2539, quoting from Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730-31, 41 L.Ed.2d 842 (1974). The district court found that the dancers are not trying to express an idea; the dancers agree. Our court does not say otherwise; it holds instead that a message is not necessary to expression because “eroticism and sensuality” (maj. op. 1086) automatically qualify as speech. Can other emotions be far behind? Despite the court’s claim that its holding covers only “dance as entertainment”, the majority does not identify any kind of entertainment that contains neither ideas nor emotions. Its rationale applies to entertainment en bloc.

Pervading this opinion is a belief that states may draw no lines where art is concerned. Sophisticates go to the museum and see Renoir’s Olympia or to the opera and see a soprano strip during the Dance of the Seven Veils in Strauss’ Salome. If the First Amendment protects these expressions, the argument goes, Joe Sixpack is entitled to see naked women gyrate in the pub. Maj. op. 1086, quoting from Salem Inn, Inc. v. Frank, 501 F.2d 18, 21 n. 3 (2d Cir.1974). Why does this follow? That a dance in Salome expresses something does not imply that a dance in JR’s Kitty Kat Lounge expresses something, any more than the fact that Tolstoy’s Anna Karenina was a stinging attack on the Russian social order implies that the scratching of an illiterate is likely to undermine the Tsar. Rembrandt applied paint to canvas; a bucket of paint hurled at a canvas also deposits paint. A conclusion that Rembrandt’s paintings are speech would not imply that all paint is expressive. Juvenile delinquents who deface subway cars with spray paint may be “expressing themselves” in a colloquial sense, but they are not communicating ideas beyond their disdain for the sensibilities of others. The First Amendment does not let a government draw lines based on the viewpoint the performer expresses; it does inquire whether particular “entertainment” is “expression” in the first place. The Constitution does not protect “the freedom of entertainment”. “Speech” — by implication “expression” of thoughts through conduct — is the foundation for its application.

Music is communicative or descriptive, and “as a form of expression and communication, is protected under the First Amendment.” Ward v. Rock Against Racism, — U.S. —, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (emphasis added). Bach’s Mass in B Minor, Beethoven’s Pastoral (Sixth) Symphony, Wagner’s Parsifal, Mahler’s Resurrection (Second) Symphony, the Beatles’ Sergeant Pepper’s Lonely Hearts Club Band, like other vocal, religious, and program music, tell stories — sometimes sexually explicit ones, as in Orff’s Carmina Burana, which, if it were not sung in Latin, could not be put on the airwaves. FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). People may fairly dispute whether absolute music, such as LaMonte Young’s Well-Tuned Piano, communicates thoughts, but surely it embodies them (the right place for the major third, etc.); all that we call music is the product of rational human thought and appeals at least in part to the same faculties in others. It has the “capacity to appeal to the intellect”, Ward, 109 S.Ct. at 2753, is not “conduct”, and is closer to speech (even an emotional harangue is speech) than to smashing a Ming vase or kicking a cat, two other ways to express emotion.

Like mimes, ballets tell stories, often erotic stories, and clothing (or lack of it) may help the tale unfold. No one can miss the sensual message in Stravinsky’s Le Sa-cre du Printemps or the fairy tale in Tchaikovsky’s Nutcracker. Ballet rarely approaches absolute music in abstraction. Even Balanchine’s choreography to Stravinsky’s Agon, a model of spare movement, does not suppress the contest to which the title refers. People objected to Nijinsky and Isadora Duncan because of the message rather than the medium.

One could try reductionism, but it would fail. All music is rhythmic pressure on the eardrum. Mozart’s string quartets, jackhammers, and humpback whales all produce rhythmic compressions. Yet Mozart’s music is profound, jackhammers are the sound of progress but express nothing beyond what they do, and whale song, for all its haunting beauty, has only the message the listener supplies. Laws muffling jackhammers, or allowing the hunting of whales, do not violate the First Amendment.

To say that the line between barroom dancing and ballet is indistinct is not to say that no state may recognize the difference: “[W]e would poorly serve both the interests for which the State may validly seek vindication and the interests protected by the First and Fourteenth Amendments were we to insist that the sort of bacchanalian revelries [nude barroom dancing!] that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater.” California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d 342 (1973). The line separating photos that are obscene from those the Constitution protects depends in part on whether the work, “taken as a whole, lacks serious literary, artistic, political or scientific value”, Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973). So the Court believes that the Constitution allows states to distinguish serious art from swill. Nude barroom dancing lacks “serious literary, artistic, political or scientific value”. If it were real speech it would not be obscene (it is too mild to satisfy the rest of the Miller test), but the lack of “serious ... artistic ... value” assures us that Indiana is not squelching important aspects of culture.

Why is it important that the plaintiffs dance? The court uses a definition of dancing (“moving the body in a rhythmical way, usually to music”, maj. op. at 1085) broad enough to cover most physical activity. Swimmers, roller skaters, ice skaters, walkers, skateboarders, matadors, and construction workers using jackhammers move rhythmically, often to music. The majority believes that “the communication of emotion or ideas” (ibid., emphasis added) is protected by the First Amendment. Many things other than dance, or entertainment, or dance-as-entertainment, express “emotion”. Quarterbacks who throw touchdown passes exude emotion. Consistent application of the majority’s approach prevents it from limiting constitutional protection to “dance as entertainment”.

What of flashers, whose “message” scarcely differs from nude dancers’? Imagine an organized flasher, shucking his coat in a booth next to the hot dog vendor and adding a boom box and hip motions. This is “dance” as my colleagues use that word. If dance is “inherently” expressive then the flasher’s act is speech; it can’t matter that the display takes place outdoors, or that the customers gawk for free. Flashers affront an unwilling audience, yet speech is protected even when listeners are revolted, Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971). Courts holding that nude dance is protected speech when the dancers are indoors, and the customers pay to watch, but not otherwise, e.g., International Food & Beverage Systems v. Ft. Lauderdale, 794 F.2d 1520, 1525 (11th Cir.1986) (which the majority quotes approvingly at 1087), offer no principle by which “expression” turns on the existence of walls, or the solvency or approval of the audience. See Erznoznik v. Jacksonville, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975) (drive-in movie is protected speech despite fact that unwilling people see, and drivers may be distracted by, the images).

Barroom displays are to ballet as white noise is to music. We know that sexual congress is not protected by the First Amendment, whether offered to the public as entertainment, Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67, 93 S.Ct. 2628, 2640, 37 L.Ed.2d 446 (1973), or sold in a spot market, Arcara v. Cloud Books, Inc., 478 U.S. 697, 705, 106 S.Ct. 3172, 3176, 92 L.Ed.2d 568 (1986). Sex may be entertaining and is at least as expressive as nude go-go dancing. Because the patrons do not fondle the dancers, our case is not Arcara, but this distinction is unrelated to expression. (Indeed, on the majority’s view “lap dancing”, a form of fondling, also might be protected speech, because it too expresses the joy of sex and involves “moving the body in a rhythmical way, usually to music”.)

If the First Amendment covers entertainment, how ought we treat bullfighting, unlawful throughout this nation but popular in many others? The matador “entertains” no less than the stripper and “expresses” more. Bullfighting is a form of dance, with elaborate choreography and messages clearly perceived by the spectators. Indiana does not offer even a “time, place, and manner” for the sport. If it were to add baseball or checkers to the list of forbidden pleasures, or if Congress were to black out telecasts of football games when the stadiums do not sell out (it has), objections could not be based on the First Amendment.

No one can escape the bullfighting problem by saying that it involves cruelty to animals, which state laws forbid. E.g., Ind.Code § 35-46-3-12(a)(l). That is not the only reason we forbid such spectacles. “Bearbaiting and cockfighting are prohibited only in part out of compassion for the suffering animals; the main reason they were abolished was because it was felt that they debased and brutalized the citizenry who flocked to witness such spectacles.” Irving Kristol, On the Democratic Idea in America 33 (1972). One may say the same for striptease dancing. Anyway, the question is whether the matador is speaking— whether the First Amendment applies— not whether the state’s claim to regulate surmounts that hurdle. Despite its refrain that the opinion is limited to dance as entertainment, the court's approach means that bullfighting is speech. If so, it is hard to see on what ground a state may forbid bullfighting. Speech is protected even when it produces risks to people, as in Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969), and Hudnut, 771 F.2d at 328-30. I cannot accept a rationale implying that a state may muffle speech to promote the welfare of bulls but not to promote the welfare of blacks (Brandenburg) or women (Hudnut).

D

We are told that however wide the gulf between striptease dancing and the Federalist Papers, the Rubicon was crossed in Schad v. Mt. Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). It wasn’t. Schad dealt with a zoning ordinance that forbade all live entertainment. This barred the town gates to Dylan Thomas’s Under Milkwood as well as to plays and other forms of speech. The Court held it overbroad. By dismissing the appeal in Baysinger, the Court has already held that Indiana’s public nudity statute is not over-broad.

Although the laws have nothing in common, Schad contains language that has been taken to resolve the question before us.

By excluding live entertainment throughout the Borough, the Mount Ephraim ordinance prohibits a wide range of expression that has long been held to be within the protections of the First and Fourteenth Amendments. Entertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works, fall within the First Amendment guarantee. Nor may an entertainment program be prohibited solely because it displays the nude human figure. “[Njudity alone” does not place otherwise protected material outside the mantle of the First Amendment. Furthermore, as the state courts in this case recognized, nude dancing is not without its First Amendment protections from official regulation.

Whatever First Amendment protection should be extended to nude dancing, live or on film, however, the Mount Ephraim ordinance prohibits all live entertainment in the Borough: no property in the Borough may be principally used for the commercial production of plays, concerts, musicals, dance, or any other form of live entertainment. Because appellants’ claims are rooted in the First Amendment, they are entitled to rely on the impact of the ordinance on the expressive activities of others as well as their own.

452 U.S. at 65-66, 101 S.Ct. at 2180-2181 (citations and footnote omitted). Culling this passage and adding ellipsis can produce phrases such as “nude dancing ... [is] rooted in the First Amendment”, but this is not the Court’s point. It tells us that a “wide range of expression ” is protected, and that “ ‘[njudity alone’ does not place otherwise protected material outside the mantle of the First Amendment”. Conduct gets to be “otherwise protected”, however, by having an element of “expression”. So nudity at the end of Hair does not withdraw the protection for the political expression that dominates that play, Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). Nudity in a ballet expressing ideas would not remove it from the realm of speech. These principles do not aid the plaintiffs today, however, for they have not established that they are engaged in “expression”.

Cases such as Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975), are no more helpful: “[although the customary ‘barroom’ type of nude dancing may involve only the barest minimum of protected expression, ... this form of entertainment might be entitled to First and Fourteenth Amendment protection under some circumstances.” (Citation omitted, emphasis added.) Under what circumstances? When it communicates something, I should think. FW/PBS, Inc. v. Dallas, — U.S. —, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), is even less aid to the plaintiffs, for there the city conceded that nude dancing is speech, and “[i]t is [the] Court’s practice to decline to review those issues neither pressed nor passed upon” in the court of appeals. Id. at 604.

To the extent Schad and Doran offer guidance, the Court’s resort to overbreadth analysis implies that nude dancing is not always clothed with expression. Over-breadth is a special doctrine entitling someone whose words or deeds could be regulated or even proscribed to prevail on the ground that as applied to someone else the law prohibits protected speech. Schad offered live nude dancing to his patrons. If nude dancing is expression, or if all entertainment is protected speech, it would have been simple to say: “Schad offers entertainment, which the borough forbids; therefore the law is unconstitutional.” Instead the Court said that “[wjhatever First Amendment protection should be extended to nude dancing”, Schad’s “claims” (not the nudity) were sufficiently rooted in the First Amendment that he could contest the application of the ordinance to “the expressive activities of others”. Only three weeks later, Justice Stevens remarked that although the Court has “written several opinions implying that nude or partially nude dancing is a form of expressive activity protected by the First Amendment, the Court has never directly confronted the question”. New York State Liquor Authority v. Bellanca, 452 U.S. 714, 718-19, 101 S.Ct. 2599, 2602, 60 L.Ed.2d 357 (1981) (dissenting opinion). Justice White, the author of Schad, concluded four years ago that the status of nude dancing remains unsettled. Young v. Arkansas, 474 U.S. 1070, 1072, 106 S.Ct. 830, 832, 88 L.Ed.2d 801 (1986) (dissenting from the denial of certiorari). Nothing since then changes that assessment.

Dallas v. Stanglin, — U.S. —, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989), comes closest to our problem. It holds that social dancing is not “expressive activity ... protected by the First Amendment.” How is nude barroom dancing different from social ballroom dancing? The court does not say; it does not mention Stanglin. The concurring opinion suggests (op. 1092) that the difference lies in performance: social dancing is like “casual chit-chat”, not the kind of “statement” that the First Amendment protects. The majority does not embrace this, for good reason. The sole case on which the concurring opinion relies arises out of public employment. Employees who go to work for the government surrender rights to speak to the extent necessary to allow the government to function. E.g., CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973); Snepp v. United States, 444 U.S. 507, 100 S.Ct. 763, 62 L.Ed.2d 704 (1980). Even in the public employee cases an audience is not essential to constitutional protection. Rankin v. McPherson, 483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). See also, e.g., Norwell v. Cincinnati, 414 U.S. 14, 94 S.Ct. 187, 38 L.Ed.2d 170 (1973) (insulting language to a police officer’s face). Congress could not imprison anyone on account of words of endearment whispered in the ear of a loved one. If privacy of speech does not blot out the First Amendment, then the difference between the brazen display of barroom dancing and the subdued display of ballroom dancing cannot reconcile this case with Stanglin. Perhaps, then, the concurring view depends on the principle that “low value” speech of all kinds is unprotected. Yet what keeps nude barroom dancing out of that category?

A line that distinguishes barroom dancing (protected) from ballroom dancing (unprotected) has little virtue other than avoiding inconvenient precedent such as Stang-lin. If the “expression” in barroom dancing lies, as my colleagues believe, maj. op. 1086-87, in a celebration of sex, conveying the pleasure dancers take in sensuality, social dancing is the more expressive. Barroom dancers feign emotion; ballroom dancers express the real thing. So if precedent is what drives our court today, the most powerful case is Stanglin, which undermines the majority’s conclusion.

E

Speech versus conduct is not only the First Amendment’s line but also a distinction essential to democratic governance. People act for reasons. Acts therefore imply the virtue or import of these reasons. And if some people, such as the dancers in JR’s Kitty Kat Lounge, believe that their autonomic nervous systems are in charge, so that they have no message, Sigmund Freud will correct them. Even in a quantum-mechanical universe there are reasons, and clever observers can infer messages having nothing to do with the id and the superego. A driver doing 90 in a school zone makes an implicit proposal to change the speeding laws, or comments on the dominance of man over machine, or declaims the low value of children’s lives, or advertises the capabilities of the car. So too we attribute to nude dancing a belief in the value of Eros, or a retelling of the Genesis story, or a burst of lustful emotion. If that strains credulity we may consult the books. Persons wanted to sleep in the national parks in CCNV to show that the high price of housing bred homelessness; strippers protest the high cost of clothing.

This is clever invention, too clever for constitutional adjudication. Neither the dancers nor their lawyers came up with a message in five years of litigation. That well-read judges can tease out of dancers’ acts thoughts the dancers never had, and divine in a rule requiring opaque covering of the nipples a threat to the display of Aubrey Beardsley’s prints, shows the importance of drawing lines rather than the need to obliterate them. “It is possible to find some kernel of expression in almost every activity a person undertakes ... but such a kernel is not sufficient to bring the activity within the protection of the First Amendment.” Stanglin, 109 S.Ct. at 1595.

Transmogrifying conduct into speech thrusts courts into the business of substantive due process. For if entertainment is speech, then it is subject only to “reasonable time, place, and manner restrictions”. “Reasonable” is the key word. Legislatures bear the burden of showing that the regulation is reasonable. What is “reasonable”, except what is wise? Assessing the wisdom of legislation is the program of Lochner. It failed when applied to wages and hours laws and is no more suited to nude dancing. “Reasonableness” is not a standard, not law at all. John Hart Ely, Democracy and Distrust 111-16 (1980); T. Alexander Aleinikoff, Constitutional Law in an Age of Balancing, 96 Yale L.J. 943, 966-68, 976-79, 984-95 (1987). When courts assess the “reasonableness” of legislation, they and not the elected legislators are the real policy-makers.

Preserving the spheres of judicial and political decision is not “to abdicate or avoid [judicial] responsibility”, maj. op. 1085 n. 4. You can’t “abdicate” a power you do not possess. When deciding whether judicial power exists a court must recognize the importance of preserving distinctive political and judicial roles. If nude dancing is “speech” it is so by the barest margin; someone standing at the center of the First Amendment (political speech) would need binoculars to see this far into the periphery. Judges should not establish rules that “disserve[] principles of democratic self-governance”, Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 547, 105 S.Ct. 1005, 1015, 83 L.Ed.2d 1016 (1985). “Values that are protected against governmental interference through enshrinement in the Bill of Rights are not thereby banished from the political process”, Employment Division v. Smith, — U.S. at —, 110 S.Ct. at 1606, and judges must respect the boundary between that process and the domain of law. Concern about the limits of judicial power, about the authority for an official with life tenure to countermand a decision of the elected legislature, must be at the forefront in every constitutional case. Article III does not commit to federal courts the resolution of all questions about the wisdom of rules. Allen v. Wright, 468 U.S. 737, 750-53, 104 S.Ct. 3315, 3324-26, 82 L.Ed.2d 556 (1984); Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 865-66, 104 S.Ct. 2778, 2788-93, 81 L.Ed.2d 694 (1984); Vance v. Bradley, 440 U.S. 93, 110-11, 99 S.Ct. 939, 949-50, 59 L.Ed.2d 171 (1979); TVA v. Hill, 437 U.S. 153, 195, 98 S.Ct. 2279, 2302, 57 L.Ed.2d 117 (1978). Yet it is exactly that power we claim in first treating conduct as “speech” and then saying that only “reasonable” regulation is allowed. The First Amendment is designed to get government out of the business of regulating speech while preserving to legislators freedom to act with respect to other human affairs. The court’s two-step, by contrast, treats conduct as speech yet asserts a broad power to regulate speech (“reasonably”, of course) and means that fundamental decisions about legislation of all kinds vest in the judiciary.

Judges avoid this by insisting on categorical rules. “Conduct” and “speech” are the principal categories, and observing that distinction is essential if we wish to maintain the boundary between legislative and judicial roles in a democratic society. Any sentient being knows that categories are imperfect. Lawyers are trained to disparage line-drawing by showing that no matter where the line goes you can frame essentially indistinguishable cases on either side. Such a line is nonsensical!, comes the coupe de grace. The exercise is child’s play in the domain of art and entertainment, for “what is art?” is a question unanswered for centuries. Albrecht Düver and a vandal wielding a can of spray paint have some things (paint, surfaces, emotions) in common. Yet the extremes are distinctive, and the difference permits a line even though other cases are much closer. Cf. United States v. Powell, 423 U.S. 87, 93, 96 S.Ct. 316, 320, 46 L.Ed.2d 228 (1975).

Political society depends on stable lines to govern a world of continuums. Anything else transfers the locus of power. Judges who see the many facets of a subject, who know that just as a line cannot bisect a sphere so no one-dimensional rule can partition a multi-dimensional world, also must understand the role lines play in governance and the allocation of functions. Complex reality mocks rules, yet we must deny ourselves the comfort of requiring the law to match the universe. Holmes understood this. Klein v. Board of Tax Supervisors, 282 U.S. 19, 23, 51 S.Ct. 15, 15-16, 75 L.Ed. 140 (1930); Hudson County Water Co. v. McCarter, 209 U.S. 349, 355, 28 S.Ct. 529, 531, 52 L.Ed. 828 (1908). An era of balancing has obscured this message, but it is no less important today. See Employment Division v. Smith, — U.S. at — n. 5, 110 S.Ct. at 1606 n. 5: it is “horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice” — or, I should think, the significance of nudity to a dance.

Ill

If go-go dancing were “expression”, and if dancers regularly undressed during the bacchanal in the third act of Saint-Saens’ Samson et Dalila without objection from Indiana, we would have an interesting case. So far as this record reveals, however, there is neither expression nor unequal enforcement according to viewpoint. An officer told the judge that he had never arrested a ballet dancer for nudity, but nothing in the record suggests that ballet dancers pirouette without tutus in his jurisdiction.

Statutes may express moral views about how the community should live. See Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986); Paris Adult Theatre I, 413 U.S. at 57-63, 93 S.Ct. at 2635-38; Dronenburg v. Zech, 741 F.2d 1388, 1397 (D.C.Cir.1984) (Bork, J.). Much law is based on nothing other than moral views. Sometimes morality combines with instrumental concerns. We accepted as adequate to support legislation the belief that displaying women in a sexually submissive way shapes social patterns to women’s detriment. Hudnut, 771 F.2d at 328-30. This court held Indianapolis’s ordinance unconstitutional only because it distinguished on account of the speaker’s viewpoint. Many of the justifications advanced for the Indianapolis ordinance could be offered for restrictions on displays in pubs. Cf. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Because the public nudity law does not discriminate on account of viewpoint, it does not have the defect that lead to invalidity in Hudnut.

Maybe all of this is rationalization of a law that has no effects beyond depriving hoi polloi of a harmless pastime. Maybe not. Ours is not the decision. States may offer different social climates from which the people may select. Indiana has one, Illinois another. Society is the richer when choices increase.

Darlene Miller wants to impress the barflies so they will ply her with drinks. She believes that the impression made by her act varies inversely with the amount of clothing she wears. She is the best judge of her self-interest, but this has nothing to do with the First Amendment. We may doubt the wisdom of requiring women to wear more clothing in the bars of South Bend than in the Folies Bergere or on the beaches of Rio de Janeiro without concluding that Indiana has exceeded its powers under the Constitution.