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Nude dancing may be prohibited, court says, citing ‘secondary effects’

WASHINGTON (BP)–Nude dancing in “adult clubs” may be banned under an ordinance prohibiting public nudity, the U.S. Supreme Court ruled March 29.

By a 6-3 vote, the high court upheld an Erie, Pa., measure banning public nudity. In so doing, the justices overturned a Pennsylvania Supreme Court opinion in favor of the owner of a club featuring dancing by totally nude women.

The high court ruled the ban is content neutral and does not violate the First Amendment’s protection of freedom of expression. The ordinance is not a regulation of expression, the court said, but of its “secondary effects,” such as increases in sexual crimes and sexually transmitted diseases and a decrease in property values.

The ordinance “is on its face a general prohibition on public nudity,” Associate Justice Sandra Day O’Connor wrote in the court’s opinion. “By its terms, the ordinance regulates conduct alone. It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity.”

The measure “is aimed at combating crime and other negative secondary effects cause by the presence of adult entertainment establishments . . . not at suppressing the erotic message conveyed by this type of nude dancing,” O’Connor wrote.

Pap’s A.M., which owned Kandyland, a nude-dancing club, had challenged Erie’s 1994 public indecency ordinance that banned nudity. Though the text of the measure was a general prohibiton of nudity, the preamble cited nude dancing. In addition, city council members supporting the ban said they were targeting the “adult clubs.”

The Pennsylvania high court reversed a Commonwealth Court ruling, striking down the ordinance as suppression of a form of expression protected by the First Amendment. In so doing, the state supreme court refused to apply any of the opinions from a majority of Supreme Court justices in a 1991 ruling upholding an Indiana law that also was a general prohibition of public nudity.

Though O’Connor said nude dancing is a form of expression that falls in the outer range of First Amendment protection, she said, “If states are to be able to regulate secondary effects, then [minimal] intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content based.”

Chief Justice William Rehnquist and associate justices Anthony Kennedy and Stephen Breyer signed onto O’Connor’s opinion. Associate justices Antonin Scalia and Clarence Thomas agreed with the court’s judgment but not its rationale.

In a concurring opinion joined in by Thomas, Scalia said the court’s “secondary effects” analysis was not necessary to uphold the ordinance, adding he was skeptical the “addition of pasties and G-strings” would reduce the negative impacts of clubs such as Kandyland. “The traditional power of government to foster good morals . . ., and the acceptability of the traditional judgment (if Erie wishes to endorse it) that nude public dancing itself is immoral, have not been repealed by the First Amendment,” Scalia wrote.

Associate Justice John Paul Stevens led the dissent, saying the ordinance “burdens a message protected by the First Amendment.” The decision marked the first time the high court has ruled “secondary effects” may vindicate the “total suppression of protected speech,” Stevens wrote.

Associate Justice Ruth Bader Ginsburg joined in Stevens’ dissent.

Associate Justice David Souter also dissented but because he did not believe Erie had demonstrated the harmful effects necessary to support the ordinance.

“All Americans gravely concerned about the attempt by peddlers and pushers of the spiritually and emotionally toxic waste called pornography, in all of its various forms, to use the First Amendment’s protection of freedom of speech to protect their cancerous assault on our civilization and its most basic values should rejoice over the court’s reaffirmation that there are limits beyond which a civilized society must not go,” said Richard Land, president of the Southern Baptist Ethics & Religious Liberty Commission.

Robert Flores, senior counsel for the National Law Center for Children and Families, said in a written release, “Communities across the country can be confident when they take action to protect themselves and their citizens from the harms caused by sexually oriented businesses. The Supreme Court has sent an unmistakably clear message to those who exploit women and feed on the lusts of men that the First Amendment does not provide a license for immorality or illegality.”

Some free-speech advocates criticized the decision in City of Erie v. Pap’s A.M.

“Historically the [secondary-effects] doctrine has given municipalities the right to zone adult establishments into specific locations in the community,” said Kenneth Paulson, executive director of the First Amendment Center at Vanderbilt University, in a written statement. “This marks the first time that the Supreme Court has used the secondary-effects doctrine to mute — and not just move — free speech.”

In striking down the Erie ordinance, the Pennsylvania Supreme Court decided it need not apply the high court’s 1991 decision in the Barnes v. Glen Theatre case, because the majority offered three different opinions. Writing for two other justices, Rehnquist said the ban was a content-neutral regulation of morality. Scalia wrote nude dancing should not even be considered for analysis under the First Amendment. Souter, the deciding vote in the 5-4 ruling, applied the doctrine of “secondary effects.”

Pap’s A.M. had asked the high court to rule the case a moot issue because the owner involved is no longer in the nude-dancing business and says he does not plan to reenter it. There is still a nude-dancing club in Erie, however. The justices ruled the case is not moot.

In addition to the National Law Center, those signing onto friend-of-the-court briefs in support of Erie were Family Research Council, Morality in Media and 14 state governments.

Supporters of the club included the ACLU, Deja Vu Club of Nashville, Tenn., Feminists for Free Expression, First Amendment Lawyers Association and several theater organizations.