WASHINGTON (BP)–The U.S. Supreme Court recently heard arguments over whether a local government’s ban on public nudity is constitutional when its target actually appears to be nude dancing.
The justices will determine whether the Pennsylvania Supreme Court was correct in refusing to apply any of the opinions of the majority in a 1991 high court ruling upholding an Indiana law that was a general prohibition of public nudity.
In 1994, the Erie, Pa., city council adopted a public indecency ordinance banning nudity. Though the text of the measure is a general prohibition of nudity, the preamble cites nude dancing in nightclubs. City council members who supported the ban said they were targeting nude dancing.
The owner of Kandyland, a nude-dancing club, challenged the ordinance. The state supreme court rejected the majority’s opinions in the high court’s 1991 Indiana case and struck down the Erie measure as an unconstitutional suppression of a form of expression protected by the First Amendment.
Gregory Karle, city solicitor of Erie, told the justices Nov. 10 the ordinance is constitutional because it is content neutral. Nude dancing “may be the triggering point of the ordinance” but that “does not make it content specific,” he said.
John Weston, a Los Angeles lawyer who argued against the ordinance, told the court the city council’s motivation does matter. “Erie’s only concern” in passing and enforcing the ordinance was to halt nude dancing, he said. There is already a state law against nudity, Weston said.
The city council asked the courts to participate in a “charade” by passing a general law with a specific target, Weston told the justices.
Chief Justice William Rehnquist disagreed. It is “only a charade” if Erie did not enforce the ordinance against nudity in other contexts, Rehnquist told Weston.
Karle said the ordinance could be applied to such plays as “Hair” and “Equus,” which include nudity. He acknowledged, however, “Equus” had been presented in Erie but he had not challenged it. He told reporters later his office did not receive a complaint about the performance.
Nude dancing is a form of expression and “has become a staple” of American culture, Weston said, citing a total of 3,000 “adult clubs” in the United States.
In striking down the Erie ordinance, the state supreme court decided it need not apply the high court’s decision in the Indiana case, Barnes v. Glen Theatre, because the majority offered three different opinions. Writing for two other justices, Rehnquist said the ban was a content-neutral regulation of morality. Associate Justice Antonin Scalia wrote nude dancing should not even be considered for analysis under the First Amendment. Associate Justice David Souter, the deciding vote in the 5-4 ruling, applied the doctrine of “secondary effects,” which says the government can restrict nude dancing out of concern for its supposedly harmful results, such as an increase in sexual crimes, a decrease in property values and an increase in sexually transmitted diseases.
In a discussion between the court and Weston, the lawyer said there was “no evidence in the record” to support there were secondary effects and the city did not rely on any studies. At least one justice challenged whether legislators were required to produce studies in such a case.
Afterward, Karle told reporters the ordinance is constitutional “because it would ban conduct, not content.”
Why governments should be allowed to prohibit a “form of popular entertainment makes no sense to me,” Weston said to reporters.
There was some discussion in the arguments whether the case was 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.
Among those signing onto friend-of-the-court briefs in support of Erie were Morality in Media, Family Research Council, National Law Center for Children and Families 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.
The opinion in City of Erie v. Pap’s A.M. will be released before the court’s term concludes early next summer.
