CITY OF ERIE, et al. v. PAP'S A. M., TDBA 'KANDYLAND' | The Foundation for Individual Rights and Expression

Case Overview

Legal Principle at Issue

Whether the city of Erie's ban on public nudity violates the First Amendment or is a valid exercise of the city's power to regulate harmful secondary effects associated with nude-dancing establishments.

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

In 1994, the Erie City Council enacted a public indecency ordinance that purports to criminalize public nudity. However, statements by several council members indicate the real intent of the law was to target nude dancing at adult entertainment businesses. PAP's A.M., the owner of an adult business called Kandyland, challenged the law in state court under the First Amendment and the free-speech provision of the Pennsylvania Constitution. After a trial judge granted a permanent injunction against the ordinance, the city appealed.

In 1996, the intermediate state appeals court, called the Commonwealth Court of Pennsylvania, reversed, finding the law constitutional based on the U.S. Supreme Court case Barnes v. Glen Theatre, Inc., which upheld a similar Indiana public indecency law. In 1998, the Pennsylvania Supreme Court reversed the Commonwealth Court, finding the law unconstitutional. The state supreme court said that it could find "no clear precedent" from the fragmented Barnes decision. The city contends the state supreme court erred in failing to apply the result of Barnes.

Nude dancing is a form of expressive conduct that merits at least some degree of First Amendment protection. Barnes v. Glen Theatre, Inc.,501 U.S. 560 (1991). Laws that are not designed to suppress freedom of expression but to target harmful secondary effects associated with certain expression are to be considered content-neutral for purposes of First Amendment review. Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976); Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).

Importance of Case

Erie's ordinance banning public nudity is a content-neutral regulation that is not designed to suppress the freedom of expression in nude dancing. The ordinance was not aimed at any erotic messages delivered by totally nude dancers, but at the harmful secondary effects allegedly associated with such businesses. "If States are to be able to regulate secondary effects, then de minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content-based," the plurality wrote.

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