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MILLER v. CIVIL CITY OF SOUTH BEND

Nos. 88-3006 & 88-3244.

887 F.2d 826 (1989)

Darlene MILLER and Jr's Kitty Kat Lounge, Inc., an Indiana Corporation; and Glen Theatre, Inc., an Indiana Corporation, Gayle Sutro, and Carla Johnson, Plaintiffs-Appellants, v. CIVIL CITY OF SOUTH BEND; Indiana Alcoholic Beverage Commission; Charley Hurley, Chief of Police of the South Bend Police Department; Michael P. Barnes, Prosecutor of the County of St. Joseph, Indiana; and Linley Pearson, Attorney General of the State of Indiana, Defendants-Appellees.

United States Court of Appeals, Seventh Circuit.

Decided October 19, 1989.

Rehearing Granted January 8, 1990.

Attorney(s) appearing for the Case

Charles A. Asher, South Bend, Ind., Lee J. Klein, Durand, Mich., for plaintiffs-appellants.

William E. Daily, Wayne E. Uhl, Asst. Attys. Gen. of Ind., Indianapolis, Ind., Arthur T. Perry, Deputy Atty. Gen., Office of the Atty. Gen., Indianapolis, for defendants-appellees.

Before WOOD, Jr., COFFEY, and FLAUM, Circuit Judges.

Rehearing En Banc Granted January 8, 1990.*

FLAUM, Circuit Judge.

These consolidated appeals present the narrow issue of whether non-obscene nude dancing, performed before an audience as entertainment, is expressive activity and therefore entitled to protection, albeit limited protection, under the first amendment. For the reasons stated herein, we hold that it is.

I.

This matter is before us for the second time...

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