Supreme Court reluctantly takes up issue of nude dancing

Wednesday, November 10, 1999

The formal chamber of the Supreme Court is not a place where you would expect the phrase “lap-dancing” to be mentioned out loud.

But that form of adult entertainment was discussed more than once today as the Supreme Court heard debate in the case of City of Erie v. Pap’s A.M., which deals with whether communities can ban public nudity and nude dancing without running afoul of the First Amendment.

The court ruled in its 1991 decision Barnes v. Glen Theatre that nude dancing was within the “outer perimeters” of the First Amendment, but it upheld a law generally banning public nudity.

But in the years since that fractured decision — four separate opinions were written in the case — states, cities and lower courts have struggled to interpret its meaning. In 1994, Erie, Pa., passed an anti-nudity ordinance written to conform with the Barnes ruling. But the Pennsylvania Supreme Court last year struck down the Erie ordinance based on its own interpretation of what the court meant in Barnes, which it described as a “hodgepodge” decision.

The Supreme Court today appeared reluctant at times to be revisiting the issue, with several justices wondering, almost hopefully, whether the case is moot. Even though victorious in the Pennsylvania courts, the owner of Kandyland, the adult theater involved in the case before the justices closed it down, sold the property and has stated he will never open an adult bar again.

Erie’s lawyer Gregory Karle, hoping to resurrect the law, urged the court not to view the case as moot, asserting it still was possible that Kandyland could reopen. John Weston, lawyer for the Kandyland owner, repeatedly sidestepped the issue, noting that the court had already denied a motion suggesting the case was dead.

On the merits of the case, several justices voiced concern that at the same time Erie was invoking the law to crack down on Kandyland, a production of the play Equus, which featured nudity, was allowed to proceed without interference. That kind of fact sometimes leads the court to decide that a law violates the First Amendment because it is enforced in a way that discriminates against certain kinds of speech. Karle said no one had complained about the play, so it was not shut down. “But it could be applied to those productions,” Karle acknowledged.

But Justice Antonin Scalia came to Karle’s defense, suggesting that government was entitled to distinguish between “lap-dancing” and Equus.

Weston argued forcefully against one of the key rationales behind anti-nudity ordinances: the so-called “secondary effects” doctrine, which suggests that nude dancing is banned not because of its expressive content but because of the prostitution and violence that is found near nude dancing establishments.

These “secondary effects” can never be used to completely prohibit a form of expression such as nude dancing, Weston said, and cannot justify even more limited restrictions unless there is some evidence that the dancing causes the secondary effects.
“It’s not unlike comments that are made about television,” said Weston. “There is no evidence to support the notion that there were secondary effects.”

Chief Justice William Rehnquist and Anthony Kennedy expressed doubt that Erie had to specifically cite evidence of secondary effects when it passed the ordinance.

Weston also vigorously defended nude dancing as an popular art form, asserting that it is a “significant staple” of American culture that has spawned 3,000 clubs nationwide and generates more income than all other theaters combined.

A decision in the case could come anytime before the court’s term ends next summer.