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Case Summary for City of Erie v. PAP'S A.M.
Argued: Nov. 10, 1999
Decided: March 29, 2000
Issue: Freedom of Speech — 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.
Vote: No. The Court voted 6-3 that the city ordinance was a content-neutral law designed to address the harmful secondary effects of nude-dancing establishments.
Decisions Below: The Commonwealth Court of Pennsylvania's opinion is located at 674 A.2d 338 (Pa. Commw. Ct. 1996). The Pennsylvania Supreme Court's opinion is located at 719 A.2d 273 (Pa. 1998).
Facts:

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.

Legal Principles at Issue: Nude dancing is a form of expressive conduct that merits at least at Issue: 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).
Legal Basis: 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.
Quotable:

"Similarly, even if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings." (Justice O'Connor).

"The Court's use of the secondary effects rationale to permit a total ban has grave implications for basic free-speech principles." (Justice Stevens)

"I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted." (Justice Souter)

Writing for the Plurality: Justice O'Connor (Joined by Chief Justice Rehnquist and Justice Kennedy)
Concurring Opinion: Justice Scalia (joined by Justice Thomas)
Dissenting Opinion: Justice Stevens (joined by Justice Ginsberg); Justice Souter
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