Pennsylvania case may be Supreme Court’s chance to clarify nude-dancing limits

Wednesday, May 19, 1999

The Supreme Court may have thought it had said all it needed to say about the relationship between nude dancing and the First Amendment eight years ago in its decision in Barnes v. Glen Theatre, Inc.

In that decision, the court said nude dancing was in the “outer perimeters” of First Amendment protection, but said narrowly tailored restrictions were constitutional.

But no such luck. The subject will return to the court’s docket this fall in the case of City of Erie v. Pap’s A.M., which the court agreed on May 17 to decide.

In fact the court may have been persuaded to take up the case by the Pennsylvania Supreme Court’s criticism of the Barnes decision as a ruling that decided little and gave lower courts no clear guidance.

Barnes, the Pennsylvania jurists said, was a “hopelessly fragmented decision” that made it difficult for courts to decide which standard to apply in assessing the constitutionality of nude dancing restrictions.

The Pennsylvania Supreme Court last October struck down Erie’s 1994 anti-nudity ordinance, which had been challenged by Pap’s A.M., a company that operates the Kandyland club in Erie. The law allowed dancers to wear pasties and G-strings, but the club owners said it restricted their First Amendment rights. The Erie ordinance was similar to the Indiana law upheld in Barnes, but the Pennsylvania court said it was not narrowly tailored to combat the social ills the law was purportedly passed to attack.

As the Pennsylvania decision suggests, lower courts have split widely in applying the Barnes decision, some citing it to uphold anti-nudity laws, others citing it to strike them down. Early this year, the 6th U.S. Circuit Court of Appeals upheld Tennessee’s public decency law, which was modeled after the law upheld in Barnes. But a decision in the 5th Circuit last year cut the other way, finding that cities have to prove that nude dancing causes “secondary effects” such as sexual assault and prostitution before it can be banned.

The outcome of the Pennsylvania case will be similarly hard to predict. In the last eight years, the high court has become generally more skeptical about restrictions on unpopular speech and expression, especially if the restrictions appear to target expression because of its content.

The Pennsylvania case could also prompt a fuller examination of the secondary-effects doctrine, cited by the 5th Circuit and articulated by Justice David Souter in a concurring opinion in Barnes.

The Pennsylvania court decisions that will be reviewed by the high court focused on Souter’s “secondary-effects” opinion in Barnes. No other justices signed on to the Souter concurrence. But the first Pennsylvania appeals court that took up the Kandyland case said that Souter, in essence, was speaking for the full court. Since the other justices in the 5-4 majority upheld the Indiana law on a variety of grounds, the Pennsylvania lower court said it was entitled to seize on the narrowest opinion in the majority — Souter’s — as the authoritative one.

Souter in his concurrence cited the 1986 ruling in Renton v. Playtime Theaters for the proposition that adult entertainment can be restricted if the restrictions are aimed not at the expression but at its “secondary effects” — the prostitution, alcohol abuse, assaults and disorder that law enforcement officials say are associated with nude entertainment.

“In my view, the interest asserted… in preventing prostitution, sexual assault, and other criminal activity, although presumably not a justification for all applications of the statute, is sufficient…to justify the State’s enforcement of the statute against the type of adult entertainment at issue here,” Souter wrote in Barnes. “It is clear that the prevention of such evils falls within the constitutional power of the State.”

Based on that concurrence in Barnes, the Commmonwealth Court in Pennsylvania upheld Erie’s ordinance. But the Pennsylvania Supreme Court said it was wrong to declare the Souter opinion as the law of the land.

The Pennsylvania Supreme Court, throwing up its hands in trying to discern the holding in Barnes, did its own analysis of the First Amendment issue involved.

While acknowledging that the stated purpose of the Erie law was to combat the “secondary effects” of nude dancing, the Pennsylvania high court said it was also intended to “impact negatively on the erotic message of the dance.” As such, the court said the Erie ordinance was “content-based,” which required that it be examined under the highest “strict scrutiny” test for constitutionality.

The Pennsylvania Supreme Court proceeded to criticize Erie’s “utter failure” to meet its burden of proving that the ordinance passes strict scrutiny. Performing its own analysis, the Pennsylvania court found that the ordinance was not narrowly tailored to the state’s compelling interest in preventing the secondary effects of nude dancing.

“There are several ways to combat these social ills without banning the expressive activity of nude dancing,” the Pennsylvania court said. “We also find it highly circuitous to prevent rape, prostitution, and other sex crimes by requiring a dancer in a legal establishment to wear pasties and a G-string before appearing on stage.”

By striking down the Erie ordinance, the Pennsylvania Supreme Court set the stages for another high court examination of the expressive value of nude dancing.

So far, only one friend-of-the-court brief has been filed with the Supreme Court in the case — the first of what probably will be dozens. The Erie County Citizens’ Coalition Against Violent Pornography filed a brief supporting Erie. It notes that since the Pennsylvania high court ruled, dancers at Kandyland have removed their pasties and G-strings and are dancing totally nude.