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City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)

2012-06-19 15:21:23

An Erie, Pennsylvania, law outlawed the act of appearing in public, either knowingly or intentionally, in a ‘‘state of nudity.’’ Respondent Pap’s A.M. (a Pennsylvania corporation) ran ‘‘Kandyland,’’ a strip club that featured totally nude female erotic dancers. In order to comply with the law, the dancers at Kandyland had to wear, at a minimum, ‘‘pasties’’ and a ‘‘G-string.’’

Pap’s filed suit seeking declaratory relief and a permanent injunction against the enforcement of the ordinance. The Court of Common Pleas struck the ordinance down as unconstitutional. The Commonwealth Court reversed. The Pennsylvania Supreme Court reversed this ruling and held that the ordinance violated Pap’s freedom of expression under the First and Fourteenth Amendments to the U.S. Constitution.

The Pennsylvania Supreme Court followed the U.S. Supreme Court’s ruling in Barnes v. Glen Theatre, Inc. (1991) and held that nude dancing is expressive conduct entitled to some level of First Amendment protection. The Pennsylvania Supreme Court found that the ordinance was not content-neutral and therefore applied strict-scrutiny review.

The U.S. Supreme Court, in Pap’s, held that the ordinance should be analyzed under the framework set forth by the Court in United States v. O’Brien (1961). The Court held that the ordinance at issue satisfied O’Brien’s four-factor test and was therefore constitutionally valid. The Court held that the ordinance was within Erie’s power to protect public health and safety, it furthered an important governmental interest related to the ‘‘secondary effects’’ of nude dancing, it was unrelated to the suppression of free expression, and the restriction was no greater than is essential to the furtherance of the government interest.

MARC M. HARROLD

References and Further Reading

  • Harrold, Marc M., Stripping Away at the First Amendment: The Increasingly Paternal Voice of Our Living Constitution, University of Memphis Law Review 32 (Winter 2002): 403.
  • Leahy, Christopher Thomas, The First Amendment Gone Awry: City of Erie v. Pap’s A.M., Ailing Analytical Structures, and the Suppression of Protected Expression, University of Pennsylvania Law Review 150 (2002): 1021–1078.

Cases and Statutes Cited