ERIE v. PAP'S A. M.

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Case Basics
Docket No. 
98-1161
Petitioner 
Erie
Respondent 
Pap's A. M.
Advocates
(Argued the cause for the petitioners)
(Argued the cause for the respondent)
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Facts of the Case 

"Kandyland," operated by Pap's A. M. in Erie PA, featured totally nude female erotic dancing. The city council enacted an ordinance making it an offense to knowingly or intentionally appear in public in a "state of nudity," To comply with the ordinance, dancers had to wear, at a minimum, "pasties" and a "G-string." Pap's filed suit against Erie, seeking a permanent injunction against the ordinance's enforcement. The Court of Common Pleas struck down the ordinance as unconstitutional, but the Commonwealth Court reversed. In reversing, the Pennsylvania Supreme Court found that the ordinance's public nudity sections violated Pap's right to freedom of expression as protected by the First and Fourteenth Amendments. The court explained that, although one purpose of the ordinance was to combat negative secondary effects, there was also an unmentioned purpose to "impact negatively on the erotic message of the dance." Additionally, because the ordinance was not content neutral, the court subjected it to strict scrutiny and found that it failed the narrow tailoring requirement of such a test. After the U.S Supreme Court granted certiorari, Pap's filed a motion to dismiss the case as moot, noting that Kandyland no longer operated as a nude dancing club, and that Pap's did not operate such a club at any other location. The Court denied the motion.

Question 

Does Erie, Pennsylvania's public indecency ordinance, as applied to prohibit nude dancing, violate the First Amendment's guarantee of free expression?

Conclusion 
Decision: 6 votes for Erie, 3 vote(s) against
Legal provision: Amendment 1: Speech, Press, and Assembly

No. In an opinion delivered by Justice Sandra Day O'Connor, the Court held that Erie's public indecency ordinance did not violate any cognizable First Amendment protections of expressive conduct. In splintered voting that did not yield a majority opinion, Justice O'Connor wrote for the Court that, "[e]ven if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers... are free to perform wearing pasties and G-strings." "The requirement... is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancers' erotic message."

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ERIE v. PAP'S A. M.. The Oyez Project at IIT Chicago-Kent College of Law. 10 September 2014. <http://www.oyez.org/cases/1990-1999/1999/1999_98_1161>.
ERIE v. PAP'S A. M., The Oyez Project at IIT Chicago-Kent College of Law, http://www.oyez.org/cases/1990-1999/1999/1999_98_1161 (last visited September 10, 2014).
"ERIE v. PAP'S A. M.," The Oyez Project at IIT Chicago-Kent College of Law, accessed September 10, 2014, http://www.oyez.org/cases/1990-1999/1999/1999_98_1161.