City of Erie v. Pap's A.M.

PETITIONER: City of Erie
LOCATION: Erie City Council

DOCKET NO.: 98-1161
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: Supreme Court of Pennsylvania

CITATION: 529 US 277 (2000)
ARGUED: Nov 10, 1999
DECIDED: Mar 29, 2000

Gregory A. Karle - Argued the cause for the petitioners
John H. Weston - Argued the cause for the respondent

Facts of the case

"Kandyland," operated by Pap's A. M. in Erie PA, featured totally nude female erotic dancing. The city council enacted an ordinance making it an offense to knowingly or intentionally appear in public in a "state of nudity," To comply with the ordinance, dancers had to wear, at a minimum, "pasties" and a "G-string." Pap's filed suit against Erie, seeking a permanent injunction against the ordinance's enforcement. The Court of Common Pleas struck down the ordinance as unconstitutional, but the Commonwealth Court reversed. In reversing, the Pennsylvania Supreme Court found that the ordinance's public nudity sections violated Pap's right to freedom of expression as protected by the First and Fourteenth Amendments. The court explained that, although one purpose of the ordinance was to combat negative secondary effects, there was also an unmentioned purpose to "impact negatively on the erotic message of the dance." Additionally, because the ordinance was not content neutral, the court subjected it to strict scrutiny and found that it failed the narrow tailoring requirement of such a test. After the U.S Supreme Court granted certiorari, Pap's filed a motion to dismiss the case as moot, noting that Kandyland no longer operated as a nude dancing club, and that Pap's did not operate such a club at any other location. The Court denied the motion.


Does Erie, Pennsylvania's public indecency ordinance, as applied to prohibit nude dancing, violate the First Amendment's guarantee of free expression?

Media for City of Erie v. Pap's A.M.

Audio Transcription for Oral Argument - November 10, 1999 in City of Erie v. Pap's A.M.

Audio Transcription for Opinion Announcement - March 29, 2000 in City of Erie v. Pap's A.M.

William H. Rehnquist:

The opinion of the Court in No. 98-1161, the City of Erie versus Pap’s A.M. will be announced by Justice O’Connor.

Sandra Day O'Connor:

This case comes here on Writ of Certiorari from the Supreme Court of Pennsylvania.

The city of Erie, Pennsylvania, enacted an ordinance banning public nudity.

The respondent, Pap’s A.M. which operate at a nude dancing establishment in Erie known as “Kandyland”, challenge the constitutionality of the ordinance, claiming that it violated respondents right to Freedom of Expression under the First Amendment.

Pennsylvania Supreme Court held the public nudity sections of the ordinance violated respondent's First Amendment rights.

In an opinion filed with the Clerk of the Court today, we reverse the judgment of the Pennsylvania Supreme Court.

As a preliminary matter, we conclude that the case is not moot.

Although Pap’s is no longer operating “Kandyland” as a nude dancing establishment, this is not a “run of the mill voluntary cessation” case.

Here it is the plaintiff who, having prevailed below, seeks to have the case declared moot.

And it is this defendant city that seeks to invoke the federal judicial power to obtain this Court’s review of the decision.

The city has an ongoing injury, which the court can remedy; and to the extent that it has an interest in resuming operations, Pap’s still has a concrete stake in the outcome.

On the merits, we hold that Erie’s ordinance is a content-neutral regulation that should be evaluated under the intermediate scrutiny standards set forth in United States versus O’Brien.

Under that standard, a content-neutral regulation will be upheld, if it furthers an important government interest and the incidental restriction on First Amendment freedoms is no greater than essential to the furtherance of that interest.

We note that in this case, like the most recent previous nude dancing case we decided, the court has produced a multitude of opinions.

Nevertheless, in an effort to describe the holding, a majority of the court agrees that Erie’s ban on public nudity is content-neutral and must be evaluated under the O’Brien standard.

The ordinance, by its terms, regulates conduct, not speech, and it bans all public nudity regardless whether it’s accompanied by expressive activity.

As the Pennsylvania Court construed the language in the preamble, one purpose of the ordinance is to combat the negative secondary effects, such as crime and other threats to public health and safety that are caused by the presence of nude dancing establishments.

Although there is only a plurality of the Court, which would hold that the ordinance satisfies all four parts of the O’Brien test, six members of the court agree that the judgment below must be reversed.

Justice Scalia has filed an opinion concurring in the judgment, which Justice Thomas has joined; Justice Souter has filed an opinion concurring in part and dissenting in part; Justice Stevens has filed a dissenting opinion which Justice Ginsburg has joined.