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The future of political freedom in the United States hardly turns on whether women have a First Amendment right to dance in the nude in bars and peep shows. The future of artistic freedom is perhaps implicated by this question, but only if the law's demand for general principle prohibits judges from treating expressive nudity in those environments as fundamentally different from expressive nudity in ballet performances, museum exhibitions, and films. Barnes v. Glen Theatre, Inc. is an interesting and potentially important case not because of the significance of the specific issue it decided, but because it provoked a lively debate among several articulate judicial conservatives. By looking closely at that debate, we may discern some of the themes and tensions that will be played out as the First Amendment enters a period of conservative dominance of the federal judiciary. Between 1937 and 1941 President Franklin D. Roosevelt appointed seven Justices to the Supreme Court. As a result of this rapid change of personnel, the Court seemed dangerously monolithic. Its dialogue on the great constitutional issues of the day ran the risk of becoming impoverished due to the lack of ideological diversity.

Of course, nothing of the sort happened. The Court of the 1940's and 1950's was deeply divided, probably fractious to a fault. The divisions of those years produced a clash of judicial philosophies that continues to set the terms of modern constitutional debate.


First Amendment | Law