Erie, PA, et al. v. Pap's A.M., et al. (03/29/2000)

By: by Lisa Byington, Medill News Service

Questions presented

Did the Pennsylvania Supreme Court improperly strike the ordinance of Erie, PA, by disregarding binding precedent in violation of the supremacy clause?

Brief

Before the city council in Erie, Pa., passed its anti-nudity ordinance on Sept. 28, 1994, dancers at Kandyland went all nude.

The ordinance, based on a U.S. Supreme Court ruling, required nude dancers to wear pasties and G-strings.

It was the 1991 Supreme Court decision in Barnes v. Glen Theater, which first put limited regulations on nudity, allowing municipalities to regulate nude dancing. Until 1994, no Pennsylvania court had ever directly considered the constitutionality of ordinances banning public nudity.

Dancers at Kandyland, located at 1402 State St., went all nude again in Jan. 18, 1995, when Erie County Judge George Levin declared the ordinance overbroad and unconstitutional.

But on March 27, 1996, the pasties and G-strings returned to Kandyland when the Commonwealth Court overturned Levin.

Kandyland's competitor, Jiggles, located at 201 W. 18th, was also affected by the Commonwealth Court ruling. The ordinance only affected clubs that do not serve alcohol, such as Kandyland and Jiggles. The Pennsylvania Liquor Control Board does not allow totally nude dancing at clubs that serve alcohol.

In compliance with the new order, PAP'S A.M., the corporation that owned Kandyland, put nudity in a theatrical setting. Bill Kuzmin, the club's former owner and current consultant, said in a 1996 article in the Erie Times that he believes the current laws regulating all-nude dancing does not prohibit full nudity in a theatrical setting.

Kuzmin cited ""Oh! Calcutta!,"" a Broadway show about sex in which performers at times go all nude. The show at that time was playing at Erie's Warner Theatre.

Following the transformation to a more theatrical presentation, Kandyland changed its name to Kandy's Dinner Theater in April 1996 after the state Commonwealth Court ruling. Kandy's Dinner Theater changed its location to a site on a state highway, and opened its doors Nov. 20, 1998. The new building, owned by Kandy's Dinner Theater Inc., was renamed Krazzyland.

Attorney Philip Friedman, who represents PAP'S A.M., appealed the Commonwealth Court's decision to the Pennsylvania Supreme Court. On Oct. 21, 1998, with one justice not participating, the state Supreme Court unanimously held that nude dancing is expressive conduct for 1st Amendment purposes.

Writing for the court, Justice Ralph Cappy said that ""requiring a dancer in a legal establishment to wear pasties and a G-string before appearing on stage"" would not serve the governmental end of preventing rape, prostitution, and other sex crimes.

In the wake of the state Supreme Court decision, Krazzyland began offering nude female dancing.

Then after the U.S. Supreme Court granted certiorari on May 17, 1999, Pap's filed a motion to dismiss the case as moot, informing the Court that it no longer operated a nude dancing club in any location.

On March 29, 2000, the Court reversed, holding that Erie's anti-nudity ordinance did not violate any cognizable 1st Amendment protections of expressive conduct.

Writing for the 7-2 majority, Justice Sandra Day O' Connor observed that the ordinance targeted all public nudity, not nudity that contains an erotic message. 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 of clothing is dropped, the majority said, the dancers are free to perform wearing pasties and G-strings.

Justices Antonin Scalia and Clarence Thomas concurred, but argued that the nudity ban was not a 1st Amendment issue because it was a general law regulating conduct and not specifically directed at expression.

Justice David Souter concurred in part and dissented in part, noting that he was reversing course from his 1991 analysis in Barnes.

Justices John Paul Stevens and Ruth Bader Ginsburg dissented and criticized the majority for making ""dramatic changes"" in legal doctrine with its ruling that are ""far more important than the question whether nude dancing is entitled to the protection of the First Amendment.""

The dissent said: ""Until now, the 'secondary effects' of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protectedspeech.""