Kandyland decision a new First Amendment landmark

Monday, April 3, 2000

The Kandyland nightclub no longer exists in Erie, Pa. But the nude dancing establishment may live for a long time as a First Amendment landmark because of a Supreme Court ruling last week.

The ruling in City of Erie v. Pap’s A.M. could make it easier for government to regulate controversial forms of expression by citing the negative impact the expression has on the surrounding community.

“I shed no tears for the owners of topless nightclubs,” said Robert O’Neil of the Thomas Jefferson Center for the Protection of Free Expression. “But this does portend some harmful consequences for other expression.”

The decision, written by Justice Sandra Day O’Connor, upheld a local anti-nudity ordinance that was challenged by Pap’s A.M., the company that owned Kandyland. Passage of the ordinance in 1994 had compelled the nude dancers at Kandyland to don pasties and G-strings. The owners sued, claiming the ordinance violated the First Amendment. The Pennsylvania Supreme Court agreed, asserting that the high court was “hopelessly fragmented” on the subject of public nudity and had offered no clear guidance in its 1991 decision in Barnes v. Glen Theatre.

The Supreme Court tried to be clearer in City of Erie v. Pap’s A.M., but was still fragmented. Two justices — Antonin Scalia and Clarence Thomas — thought the case was moot, because Kandyland no longer exists, and they also disagreed with the rationale of the main opinion. Two other justices — John Paul Stevens and Ruth Bader Ginsburg — thought the law amounts to censorship, and dissented. And Justice David Souter wrote a concurring opinion that parted company from the court’s main opinion in one major aspect.

But two main principles commanded a majority of the court:

  • First, five justices agreed that laws against public nudity could be judged under the so-called “O’Brien Test,” a middle level of scrutiny that is likely to result in more such laws being upheld.
  • Second, five justices also agreed that a form of expression — in this case, totally nude dancing — may be banned outright because of the “secondary effects” it has in promoting crimes such as alcohol abuse and domestic violence in the surrounding neighborhood. Souter, however, asserted that government must offer some evidence that these secondary effects will flow from the expression and that its statute will alleviate them.

Both aspects of the ruling, according to dissenting Justice Stevens, amount to “dramatic changes” in First Amendment law which have “grave implications for basic free speech principles.”

Stevens noted that in the past, the secondary effects doctrine had been used in zoning cases that had the effect of relocating or dispersing adult entertainment, rather than banning it altogether. He cited Young v. American Mini Theatres, Inc., Renton v. Playtime Theatres, and Schad v. Mount Ephraim. In Schad, the Court explicitly stated that its secondary effects doctrine could not justify banning “all live entertainment or all nude dancing in a jurisdiction.”

Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.