Prior history
On September 28, 1994, the city council of Erie, Pennsylvania, enacted Ordinance 75–1994, a public indecency ordinance that makes it a summary offense to knowingly or intentionally appear in public in a "state of nudity." [1] [2] The respondent, Pap's, a Pennsylvania corporation, operated an establishment in Erie known as Kandyland that featured totally nude erotic dancing performed by women. To comply with the ordinance, these dancers would need to wear, at a minimum, pasties and a G-string. [1] [2] On October 14, 1994, two days after the ordinance went into effect, Pap's filed a complaint against the city of Erie, mayor Joyce Savacchio, city solicitor Gregory A. Karle, and members of the city council, seeking declaratory relief and a permanent injunction against the enforcement of the ordinance. [1]
The state Court of Common Pleas struck down the ordinance as unconstitutional, but the state appellate Commonwealth Court reversed the decision. The Pennsylvania Supreme Court in turn reversed the Commonwealth Court, finding that the ordinance's public nudity section was an unconstitutional violation of Pap's First Amendment rights. The company appealed to the U.S. Supreme Court and was granted certiorari. [1]
Opinion of the Court
Mootness
The U.S. Supreme Court proceeded to the merits of the case despite a possible mootness issue. While the case was pending, Pap's A.M. went out of business, meaning that no concrete private rights were left to litigate. Despite going out of business, the Supreme Court still heard the case because 1) the City of Erie was suffering an "ongoing injury" and 2) Pap's was still incorporated and could potentially go back into business.
First Amendment arguments
The court found the following rules of law to apply:
- Being in a state of nudity is not an inherently expressive condition. Totally nude erotic dancing is expressive conduct, although it falls only within the outer ambit of the protection of the First Amendment. [1]
- Governmental restrictions on all public nudity should be evaluated under the framework set forth in United States v. O'Brien for content-neutral restrictions on symbolic speech. [1]
- A city may pass a restriction on public nudity and erotic dancing with an argument about the possible secondary effects on the surrounding community, even though such a ban may place incidental burdens on some protected speech. [1]
- For purposes of analysis under the First Amendment, even if a regulation has an incidental effect on some speakers or messages but not others, the regulation is content-neutral if it can be justified without reference to the content of the expression. [1]
After determining that the ordinance was content neutral, the Court then applied the O'Brien test for evaluating restrictions on symbolic speech. The first factor of the O'Brien test is whether the government regulation is within the constitutional power of the government to enact. The second factor is whether the regulation furthers an important or substantial government interest. The third factor is that the government interest must be unrelated to the suppression of free expression. The fourth factor is that the restriction be no greater than is essential to the furtherance of the government interest. [1]
The court found that the ordinance met all four factors of the O'Brien test, and that a "least restrictive means" analysis was not necessary. [1] The Court reversed the decision of the Pennsylvania Supreme Court, and found the ordinance to be constitutional.
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