American Constitutionalism in Historical Perspective (packet)

Nude Dancing – Barnes v. Glen Theatre, 1991: state req dancers in nude bars to wear pasties and g-strings. 8 justices believe this is an issue of free expression (not Scalia), but allow the regulation. Dissent this is content bias & s/n be judged the same as public behavior b/c limited to adults that choose to attend.

1. 
   Manner regulation: not prohibiting the expression
   
2. 
   Legitimate govt purpose: restricting nudity. Souter: law needs to be aimed at preventing secondary effects such as prostitution and criminal activity. (Erie grounds). Later, Souter renounces his view for lack of evidence.
   
3. 
   Reasonably targeted: minimal coverage seems sufficient.
   
4. 
   Scalia says this is targeted at action not speech so no prob. Substantial state interest in upholding morality so passes under O’Brien test. No more speech suppressive than necessary.
   

Public Forum: Regulations of Time, Place, and Manner (pp. 1234-1276)

1. 
   Background: public forum identifies context in which free speech principles apply. Can include public and private property. Based on the following criteria:
   

1. 
   Is the area traditionally or generally open to the public? Based on history and current practice.
   
2. 
   Are the purposes of the 1^st A consistent with the purposes of the forum? These purposes are weighed against individual’s privacy interests (Rowan, Pacifica, Frisbee)
   
   1. 
      Political speech (Mikeljohn)
      
   2. 
      Truth (Mill)
      
   3. 
      Moral autonomy of conscience and dissent (Brandeis, Whitney concurrence)
      
3. 
   Are there adequate alt forum to discuss these issues? Judges differ on this. More liberal ones think this should be weighty. Concerned about removing discourse from public discussion.
   
1.