Antonin Scalia

“ The purpose of the Indiana statute, as both its text and the manner of its enforcement demonstrate, is to enforce the traditional moral belief that people should not expose their private parts indiscriminately, regardless of whether those who see them are disedified. ”

“ Indiana's statute is in the line of a long tradition of laws against public nudity, which have never been thought to run afoul of traditional understanding of "the freedom of speech." Public indecency-including public nudity-has long been an offense at common law. ”

“ But virtually every law restricts conduct, and virtually any prohibited conduct can be performed for an expressive purpose-if only expressive of the fact that the actor disagrees with the prohibition. ”

“ As Judge Easterbrook put it in his dissent below: "Indiana does not regulate dancing. It regulates public nudity. . . . Almost the entire domain of Indiana's statute is unrelated to expression, unless we view nude beaches and topless hot dog vendors as speech." Miller v. Civil City of South Bend, 904 F.2d 1081, 1120 (CA7 1990) (Easterbrook, J., dissenting) . The intent to convey a "message of eroticism" (or any other message) is not a necessary element of the statutory offense of public indecency ”

“ Perhaps the dissenters believe that "offense to others" ought to be the only reason for restricting nudity in public places generally, but there is no basis for thinking that our society has ever shared that Thoreauvian "you - may - do - what - you -like - so - long - as - it - does - not - injure - someone -else" beau ideal-much less for thinking that it was written into the Constitution. ”

“ Slaton involved an exhibition which, since it was obscene and at least to some extent public, was unprotected by the First Amendment, see Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) ; the State's prohibition could therefore be invalidated only if it had no rational basis. We found that the State's "right . . . to maintain a decent society" provided a "legitimate" basis for regulation-even as to obscene material viewed by consenting adults. ”

“ There is even greater reason to apply this approach to the regulation of expressive conduct. Relatively few can plausibly assert that their illegal conduct is being engaged in for religious reasons; but almost anyone can violate almost any law as a means of expression. ”

“ In Bowers, we held that since homosexual behavior is not a fundamental right, a Georgia law prohibiting private homosexual intercourse needed only a rational basis in order to comply with the Due Process Clause. Moral opposition to homosexuality, we said, provided that rational basis. ”

“ Such a regime ensures that the government does not act to suppress communication, without requiring that all conduct-restricting regulation (which means in effect all regulation) survive an enhanced level of scrutiny. ”

“ In my view, however, the challenged regulation must be upheld, not because it survives some lower level of First-Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First-Amendment scrutiny at all.
* Indiana's public indecency statute provides:
" (a) A person who knowingly or intentionally, in a public place:
" (1) engages in sexual intercourse;
" (2) engages in deviate sexual conduct;
" (3) appears in a state of nudity; or
" (4) fondles the genitals of himself or another person ”

“ I am not sure that theater versus non-theater represents a distinction based on content rather than format, but assuming that it does the argument nonetheless fails for the reason the plurality describes, ante, at 564, n. ”