City of Erie v. Pap's A.M.
Does a city ordinance that bans public nudity — including nude dancing at adult entertainment establishments — violate the First Amendment's guarantee of free expression, and was the case rendered moot when the nude dancing establishment voluntarily closed its doors?
The Decision
6-3 decision · Opinion by Sandra Day O'Connor · 2000
Majority Opinion— Sandra Day O'Connorconcurring ↓dissent ↓
The Supreme Court reversed the Pennsylvania Supreme Court's decision by a vote of 6–3, holding that Erie's public nudity ordinance did not violate the First Amendment. Justice Sandra Day O'Connor announced the judgment of the Court and delivered a plurality opinion joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer. Because no single opinion commanded a majority of five justices on every point, the case produced a plurality decision with separate concurring opinions.
On the threshold mootness question, the Court held that the case was not moot despite Kandyland's closure. The plurality reasoned that Pap's A.M. still existed as a Pennsylvania corporation and could, in theory, resume nude dancing operations. Under the doctrine of voluntary cessation, a party cannot render a case moot simply by choosing to stop the challenged behavior, especially when the party retains the ability to resume that conduct. The Court was skeptical that the closure was anything other than an effort to evade Supreme Court review of the constitutional question.
On the merits, the plurality applied the four-part test from United States v. O'Brien, which governs content-neutral regulations that incidentally burden expressive conduct. The plurality accepted that nude dancing is expressive conduct entitled to some — though not much — First Amendment protection. However, O'Connor wrote that the ordinance was content-neutral because it was aimed at the harmful secondary effects associated with nude entertainment establishments, not at suppressing the erotic message of nude dancing. These secondary effects, such as increases in crime and decreases in property values, constituted a substantial government interest. The ordinance was deemed narrowly tailored because it required only a minimal covering — pasties and a G-string — rather than banning erotic dancing entirely.
The plurality emphasized that government does not need to present specific empirical evidence that secondary effects have occurred in a particular city. Instead, it may rely on the experiences of other cities and on judicial findings in prior cases establishing that nude entertainment establishments tend to generate negative secondary effects. Because the ordinance left open ample alternative channels for erotic expression, the plurality concluded it satisfied the O'Brien test and was constitutionally permissible.
Concurring Opinions
Justice Scalia, joined by Justice Thomas, concurred in the judgment but rejected the plurality's secondary-effects analysis entirely. Scalia argued that a general law banning public nudity need not be subjected to First Amendment scrutiny at all, because it is a traditional exercise of the state's police power to regulate conduct, regardless of whether some people engage in that conduct for expressive purposes. Justice Souter filed an opinion concurring in part and dissenting in part: he agreed with the mootness holding and the use of the O'Brien framework but argued the case should be sent back to lower courts because Erie had not presented sufficient evidence that the specific secondary effects it cited actually justified this particular ordinance.
Dissenting Opinions
John Paul Stevensjoined by Ruth Bader Ginsburg
Justice Stevens argued that the ordinance was not truly content-neutral but was instead deliberately targeted at the expressive component of nude dancing. He contended that the city's real purpose was to suppress the erotic message communicated by nudity, and that the 'secondary effects' rationale was a pretext that allowed the government to censor disfavored speech.
- The ordinance was enacted in direct response to the opening of Kandyland, demonstrating that its purpose was to suppress a specific form of expression, which makes it a content-based regulation subject to strict scrutiny — a test the ordinance could not survive.
- The line between banning nudity for its 'secondary effects' and banning it for its communicative impact is dangerously thin; allowing cities to invoke secondary effects too freely risks giving government a tool to restrict speech it simply disapproves of.
- Even under the more permissive O'Brien test, the ordinance fails because banning the last stitch of clothing does not meaningfully address crime or urban blight — the alleged secondary effects are associated with the establishments themselves, not with whether the dancers are fully or nearly nude.
- The plurality's reasoning effectively guts any First Amendment protection for nude dancing by allowing the government to regulate away the very element — nudity — that makes the expression distinct.
Background & Facts
The City of Erie, Pennsylvania, enacted a public indecency ordinance in 1994 that made it a criminal offense to knowingly or intentionally appear in public in a 'state of nudity.' The ordinance was modeled on a similar law from the neighboring state of Indiana. Although it applied broadly to all public nudity, the practical effect — and the clear motivation — was to require dancers at nude entertainment venues to wear at minimum 'pasties' and a 'G-string.' The ordinance was passed shortly after a new nude dancing establishment called 'Kandyland' began operating in the city.
Pap's A.M. (trading as 'Kandyland') was a corporation that operated a nude erotic dancing establishment in Erie. Before the ordinance went into effect, Pap's A.M. filed a lawsuit in the Court of Common Pleas of Erie County, seeking to block the ordinance on the ground that it violated the First and Fourteenth Amendments to the United States Constitution. The trial court struck down the ordinance as unconstitutional, and Erie appealed.
The case traveled up through the Pennsylvania courts. The Commonwealth Court reversed the trial court and upheld the ordinance, but the Pennsylvania Supreme Court then reversed the Commonwealth Court. The state high court held that the ordinance's public nudity ban, as applied to expressive conduct like nude dancing, violated the First Amendment. The Pennsylvania Supreme Court distinguished the ordinance from the one the U.S. Supreme Court had upheld in a prior case involving Indiana's public indecency statute, finding Erie's ordinance was specifically aimed at suppressing expressive conduct.
The City of Erie then petitioned the U.S. Supreme Court to review the case. Before oral arguments, however, Pap's A.M. informed the Court that Kandyland was no longer operating as a nude dancing establishment and that the corporation's owner had passed away. This raised the question of whether the controversy was now moot. The Supreme Court agreed to hear the case to resolve the First Amendment question and the threshold question of mootness, given the importance of the constitutional issue and the disagreement among courts.
The Arguments
The City argued that its public nudity ordinance was a legitimate, content-neutral regulation of conduct that only incidentally burdened expression. It maintained that the ordinance served important government interests in combating the well-documented negative secondary effects — such as crime, prostitution, and neighborhood deterioration — associated with nude dancing establishments.
- The ordinance was a general ban on all public nudity, not a targeted attack on any particular form of expression, making it content-neutral under established constitutional standards.
- Under the four-part test for evaluating content-neutral restrictions on expressive conduct, the ordinance was within the city's constitutional power, furthered a substantial government interest in combating secondary effects, and the restriction was no greater than necessary to achieve that interest.
- The requirement that dancers wear minimal clothing such as pasties and a G-string was only a slight burden on expression and left ample room for erotic dancing to continue.
Pap's A.M. argued that nude dancing is a form of expression protected by the First Amendment and that Erie's ordinance was specifically designed to suppress that expression. The company contended the ordinance was essentially content-based because it targeted the expressive message conveyed by nude dancing.
- Nude erotic dancing, while on the outer margins of First Amendment protection, has been recognized by the Supreme Court as a form of expressive conduct entitled to some constitutional protection.
- The ordinance was passed in direct response to the opening of Kandyland, revealing that its true purpose was to suppress a particular kind of expression rather than to advance a neutral interest in public order.
- The city had not presented actual evidence that Kandyland itself had generated the kinds of negative secondary effects — like increased crime or urban blight — that the city claimed to be fighting.