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From: carroll@tjc.com (Terry Carroll)
Newsgroups: alt.folklore.urban
Subject: Re: From FAQ: "Public boner" law upheld by Supreme Court?
Date: Sat, 17 Feb 1996 16:31:57 GMT

Okay; technically the FAQ is correct, then, but only by stretching the truth. There is in fact an Illinois law that prohibits a number of things, one of which is a public erection, and another one of which is nude dancing. The prohibition against the public erection has never been challenged in the Supreme Court, but the prohibition against nude dancing has. The FAQ is technically correct, because the law was considered by the Court, and upheld. However, the FAQ is misleading, because the portion that is the focus of the FAQ entry was not considered by the Court.

This would be akin to reporting that a law prohibiting the sending of indecent material over the Internet has been upheld in court, when in fact, the provision of the Communications Decency Act that has been upheld is the portion that prohibits making patently offensive material available to minors.

I suggest that the part "Law upheld by US Supreme Court" be removed from the FAQ.

From: moe@Radix.Net (Ted Frank)
Newsgroups: alt.folklore.urban
Subject: Re: From FAQ: "Public boner" law upheld by Supreme Court?
Date: 17 Feb 1996 20:41:16 -0500

In article <312600c0.3644768@news2.aimnet.com>, Terry Carroll <carroll@tjc.com> wrote:
>Okay; technically the FAQ is correct, then, but only by stretching the
>truth. There is in fact an Illinois law that prohibits a number of
>things, one of which is a public erection, and another one of which is
>nude dancing.

ObPedant: Indiana. Hence the beautiful quotation about 70,000 naked people in the Hoosierdome in either the Court of Appeals or the Supreme Court opinion, I forget which. _Barnes_ is the name of the case.

>I suggest that the part "Law upheld by US Supreme Court" be removed from
>the FAQ.

I'd concur.

--
moe@radix.net



From carroll@tjc.com Tue Mar 10 09:00:25 1998
Date: Wed, 21 Jan 1998 14:16:24 -0800 (PST)
From: Terry Carroll <carroll@tjc.com>

Let me give you further information on the case referred to in the archive and on the Indiana law at issue. I think this is worthy of adding to the archive.

The case is Barnes v. Glen Theatre, 501 U.S. 560 (1991). The case (including the opinion of the court, two concurring opinions,and a dissenting opinion) is online at <http://caselaw.findlaw.com/scripts/getcase.pl?navby=case&court=US&vol=501&page=560>.

The opinion of the court (without the concurring or dissenting opinions) is available at <ftp://ftp.cwru.edu/U.S.Supreme.Court/ascii/90-26.O.filt>.

The statute in question was, according to footnote 2 in the case, Indiana Code 35-451 (1988) (the concurring opinion cites it as "35-45-4-1"). According to the case, it provided (and presumably continues to provide):

Public Indecency; indecent exposure

Sec. 1.

(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; 

      commits public indecency, a Class A misdemeanor.

      (b) "Nudity" means the showing of the human male or female genitals,
      pubic area, or buttocks with less than a fully 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 the covered male
      genitals in a discernibly turgid state. 

Basically, the FAQ entry I was responded to implied that 1(a)(3) was upheld on the basis of the "showing of the covered male genitals in a discernibly turgid state" clause defining "nudity." In reality, the case had nothing to do with it. It was just plain old fashioned nudity: "The live entertainment at the 'bookstore' consists of nude and seminude performances and showings of the female body through glass panels." So again, it's technically true that the law prohibits knowingly or intentionally publicly showing covered male genitals in a discernable turgid state, among other things, and it's technically true that the law was upheld by the Supreme Court, but the case before the court did not involve the clause at issue, and it's incorrect to say that the clause was upheld (although again, it's technically correct that the law that contains the clause was upheld as it was applied without using the clause).

Also, Ted Frank is quite correct that it was an Indiana law, not Illinois as I typoed. The quote Ted mentioned is in the Supreme Court case, but in Scalia's concurring opinion (which may be found at <ftp://ftp.cwru.edu/U.S.Supreme.Court/ascii/90-26.C1.filt>), not the opinion of the court: "The purpose of Indiana's nudity law would be violated, I think, if 60,000 fully consenting adults crowded into the Hoosierdome to display their genitals to one another, even if there were not an offended innocent in the crowd." Barnes at 575.

--

Terry Carroll         |  
Santa Clara, CA       |   
carroll@tjc.com       | 
Modell delendus est   |