While it may be in some manner "expressive" for a person to appear naked in public, the plurality determined that basically any conduct anyone engages in at any time can be considered "expressive," so merely being expressive is not enough to bring such an argument. Nudity is not protected under the First Amendment, nor expressive content. As to the final point of the O'Brien test, the plurality contended that the statute was narrowly tailored to achieve the government interest it sought to promote. The opinions authored by the judges on the Seventh Circuit's panel accepted the argument that the statute in question unduly infringed on freedom of expression; in this case, the message of "eroticism and sexuality" that the dancers were meant to convey. O'Brien ,  the four-pronged "O'Brien Test. Ephraim ,  the dissent remarks that the condition of human nakedness in and of itself does not transform otherwise protected speech into unprotected speech. However, he differed from the plurality by arguing that the Indiana statute did not regulate any kind of expression, merely conduct.
Marleigh. Age: 20.
The District Court, upon remand , declared that the dancing was not constitutionally protected speech,  and the businesses appealed to the Seventh Circuit Court of Appeals, which reversed the District Court's ruling.
Kelsey. Age: 22.
many Teens dancing nude at public party
In effect, this ruling determined that it was not unconstitutional for a state to enact legislation forbidding public nudity outright, particularly if the only requirement for a person to no longer be considered "nude" was wearing some of the most revealing possible clothing. The Supreme Court granted certiorari  and heard oral arguments on January 8, Two businesses - the Kitty Kat Lounge, Inc. In his concurrence, Justice Souter's well-known sentence, "Although such performance dancing is inherently expressive, nudity per se is not," outlines his general purpose.