Brief Fact Summary. The Petitioner, the City of Erie (Petitioner), passed an ordinance banning nude dancing. The Respondent, Pap’s (Respondent), operates a nude bar and challenges the constitutionality of the ordinance.
Synopsis of Rule of Law. Preventing secondary effects is a sufficient reason to make a content neutral law.
In 1994, the Petitioner passed a law that makes it a crime to intentionally appear in public in a “state of nudity.” The Respondent, Pap’ A.M. (Respondent), owns “Kandyland” a club that features totally nude erotic dancing by women. To comply with the ordinance, the dancers must wear G-strings and pasties. Now, the Respondent seeks a permanent injunction against the Petitioner.
Issue. Is the ordinance constitutional?
Held. Yes. It is a content neutral regulation and does not violate the First Amendment of the United States Constitution (Constitution) because being nude is not an expression.
Dissent. Points of Law - for Law School Success
But simply to define what is being banned as the message is to assume the conclusion. View Full Point of Law
Justice David Souter (J. Souter): There is insufficient evidence to support the city’s claim of secondary effects.
Justice John Paul Stevens (J. Stevens): This law is an example of censorship. There is no way that dancers wearing G-strings and pasties result in a decrease of the secondary effects of which the city was concerned.
Concurrence. The First Amendment of the Constitution is violated only when the communicative aspects of conduct are the reasons for the prohibition. Discussion.
This law was passed to prevent the secondary effects of the activity. Nude dancing attracts other undesirable public nuisances that provide the city with a legitimate interest in prohibiting public nudity.