| Litigants: | Erie v. Pap's A. M. |
| Arguedate: | November 10 |
| Argueyear: | 1999 |
| Decidedate: | March 29 |
| Decideyear: | 2000 |
| Fullname: | City of Erie, et al. v. Pap's A. M., tdba "Kandyland" |
| Usvol: | 529 |
| Uspage: | 277 |
| Parallelcitations: | 120 S. Ct. 1382; 146 L. Ed. 2d 265 |
| Prior: | 553 Pa. 348, 719 A.2d 273. The state supreme court determined that petitioner City's ordinance banning public nudity violated respondent operator of totally nude dancing establishment's right to freedom of expression under U.S. Const. amend. I. |
| Holding: | The ordinance was content-neutral because it regulated conduct alone, did not target nudity that contained an erotic message, and petitioner's interest in preventing harmful secondary effects associated with adult entertainment establishments was not related to the suppression of the exotic message conveyed by nude dancing. The O'Brien test for evaluating restrictions on symbolic speech therefore applied, and was successfully met. Reversed. |
| Majority: | O'Connor (Parts I and II) |
| Joinmajority: | Rehnquist, Kennedy, Souter, Breyer |
| Plurality: | O'Connor (Parts III and IV) |
| Joinplurality: | Rehnquist, Kennedy, Breyer |
| Concurrence: | Scalia |
| Joinconcurrence: | Thomas |
| Concurrence/Dissent: | Souter |
| Dissent: | Stevens |
| Joindissent: | Ginsburg |
| Lawsapplied: | U.S. Const. Amend. I |
Erie v. Pap's A. M., 529 U.S. 277 (2000), was a landmark decision by the Supreme Court of the United States regarding nude dancing as free speech. The court held that an ordinance banning public nudity did not violate the operator of a totally nude entertainment establishment's constitutional right to free speech.[1]
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."[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. On October 14, 1994, two days after the ordinance went into effect, Pap's filed a complaint against the city of Erie, the 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.
The Court of Common Pleas struck down the ordinance as unconstitutional, but the 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. Certiorari was granted on appeal from the State Supreme Court.
The Court proceeded to the merits 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 proceeded to decide the case on the merits 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.
The Court found the following rules of law to apply:
After determining that the ordinance was content neutral, the Court then applied the O'Brien test. The first factor of the O'Brien test for evaluating restrictions on symbolic speech is whether the government regulation is within the constitutional power of the government to enact.[1] The second factor of the O'Brien test for evaluating restrictions on symbolic speech is whether the regulation furthers an important or substantial government interest.[1] The third O'Brien factor is that the government interest must be unrelated to the suppression of free expression. The fourth and final O'Brien factor is that the restriction be no greater than is essential to the furtherance of the government interest.
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.
The effects of this case reach beyond simple restriction of nudity. The majority opinion noted:
Justice Scalia, joined by Justice Thomas, agreed that the Pennsylvania Supreme Court's decision must be reversed, but disagreed with the mode of analysis that should be applied.[1]