Pennsylvania law barring ‘lewd’ conduct survives First Amendment challenge

Thursday, July 16, 1998

Pennsylvania's “bottle club” law, which prohibits the offering of “lewd, immoral, or improper” entertainment for profit, does not violate the First Amendment, a state appeals court ruled Monday.

In Commonwealth v. Maker, five employees and the owner of the bring-your-own-bottle club Runway 56 in Indiana County challenged their trial court convictions under the law.

The defendants were charged in April 1997, after undercover officers observed three of the defendants performing totally nude dances for patrons. The other defendants included the manager, owner and another employee.

The defendants appealed to the Pennsylvania Superior Court, arguing that the bottle club law violates their First Amendment free-expression and free-assembly rights.

Their free-expression claim focused on U.S. Supreme Court case law providing that nude dancing is expressive conduct that merits some level of First Amendment protection.

In the 1991 case Barnes v. Glen Theatre, Inc., the high court wrote that “nude dancing … is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so.” However, the Supreme Court in Barnes upheld an Indiana public indecency law that was used by government officials to prohibit totally nude dancing.

The Supreme Court reasoned that even though totally nude dancing conveys erotic expression, “the requirement that the dancers don pasties and G-strings does not deprive the dance of whatever erotic message it conveys; it simply makes the message slightly less graphic.”

The Pennsylvania appeals court, citing the Barnes decision, ruled that totally nude dancing qualifies as “lewd, immoral or improper entertainment” and can be prohibited without running afoul of the First Amendment.

The court wrote that the bottle club law serves the governmental interest of “societal disapproval of nudity in public places and among strangers.”

The defendants also made a free-assembly claim based on the fact that the law defined an “establishment operated for profit or pecuniary gain” as one that “has a capacity for the assemblage of 20 or more persons” and in which alcohol is served.

The court rejected the free-assembly claim without any explanation other than writing: “Pennsylvania's requirement that dancers refrain from 'lewd, immoral or improper' performances is a modest request; and the bare minimum necessary to achieve the Commonwealth's purpose of preventing nude dancing in public is being accomplished without offending the First Amendment's freedom of expression or assembly.”

Thomas Earhart, attorney for the defendants, said: “The court says in a footnote that this law is unrelated to the suppression of free expression. On the contrary, this law was specifically drafted to suppress free expression.

“This law is blatantly unconstitutional,” he said. “The state says this law serves the government interest in preventing public nudity. If I walk down the street naked, that's public nudity. Nudity inside a building with closed doors and paid admission is not public nudity. This decision has basically outlawed the profession of an erotic dancer.

“The court dealt with the constitutional arguments in a footnote and did not even address our free-assembly claim,” Earhart added.

He said his clients have not decided whether to appeal the decision to the Pennsylvania Supreme Court.