Erie v. Pap’s A.M., 529 U.S. 277; 120 S. Ct. 1382; 146 L. Ed. 2d 165 (2000)
Facts—Erie, Pennsylvania, adopted a law prohibiting public nudity and therefore requiring that exotic dancers wear, at a minimum, “pasties” and a “Gstring.” The owners of “Kandyland” challenged the statute as an interference with freedom of expression protected by the First and Fourteenth Amendments. The Court of Common Pleas struck the law down, the Commonwealth Court reversed, and the Pennsylvania Supreme Court reversed the Commonwealth Court, thus holding that nude dancing was a form of protected expression.
Question—Does the Erie, Pennsylvania, ordinance requiring dancers to wear pasties and a G-string violate the freedom of expression protected by the First and Fourteenth Amendments?
Decision—No.
Reasons—J. O’Connor (6–3). Even though Kandyland had closed, it had the potential to reopen, and Erie was faced with a judgment invalidating its ordinance in the meantime. The case was not therefore moot. Nude dancing is a form of “expressive conduct,” but it falls “within the outer ambit of the First Amendment’s protection.” The city’s interest in banning total nudity is based on its desire to combat harmful “secondary effects” of such nudity on “public health, safety, and welfare.” The city’s requirement that dancers wear pasties and a G-string constitute a “de minimus” restriction on freedom of speech “unrelated to the suppression of the erotic message conveyed by nude dancing.” In such circumstances, the Court applies the four-part test developed in U.S. v. O’Brien [involving the burning of draft cards] (1968). The government’s regulation fell within its constitutional powers to regulate health and safety. These are important governmental interests. On its face, the ordinance applies to all nudity and is not therefore aimed only at expressive dancing. Similarly, its impact on conduct is minimal. O’Connor thus reaffirms the Supreme Court’s earlier decision in Barnes v. Glen Theater, Inc., 501 U.S. 560 (1991), providing for pasties and G-strings in such circumstances.
J. Scalia’s concurrence argued that the Court should consider the case moot, but, if the law were to be considered, it should be considered as a law regulating conduct rather than speech. It fell under “the traditional power of government to foster good morals (bonos mores), and the acceptability of the traditional judgment that nude dancing itself is immoral.” J. Stevens’s dissent argued that the Court was widening earlier precedents permitting zoning restrictions so as to “justify the total suppression of protected speech.” He disputed the likelihood that pasties and G-strings would do much to control the secondary effects that the city feared and argued that the city was suppressing nude dancing precisely because of its communicative effect. J. Souter argued that the city had provided insufficient information for the Court to come to a reasonable conclusion in the case and thought that Erie should develop its case further before the Court rendered its opinion.