CITY OF ERIE v. PAP'S A.M.
529 US. 277 (2000)
[Erie, Pennsylvania enacted a public indecency ordinance that makes it an offense to knowingly or intentionally appear in public in a "state of nudity." Respondent Pap's A.M. operated an establishment in Erie known as "Kandyland" that featured totally nude erotic dancing. To comply with the ordinance, these dancers must wear, at a minimum, "pasties" and a "G-string." Pap's sought a permanent injunction against the enforcement of the ordinance.]
The Pennsylvania Supreme Court, although noting that this Court in Barnes v. Glen Theatre, Inc., 501 u.S. 560 (1991), had upheld an Indiana ordinance that was "strikingly similar" to Erie's, found that the public nudity sections of the ordinance violated respondent's right to freedom of expression under the United States Constitution. . . . We hold that Erie's ordinance is a content-neutral regulation that satisfies the four-part test of United States v. O'Brien, 391 U.S. 367 (1968). Accordingly, we reverse the decision of the Pennsylvania Supreme Court and remand for the consideration of any remaining issues.
To determine what level of scrutiny applies to the ordinance at issue here, we must decide "whether the State's regulation is related to the suppression of expression." Texas v. Johnson; see also United States v. 0 'Brien. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" standard from 0 'Brien for evaluating restrictions on symbolic speech. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the 0 'Brien test and must be justified under a more demanding standard. In Barnes, we analyzed an almost identical statute, holding that Indiana's public nudity ban did not violate the First Amendment, although no five members of the Court agreed on a single rationale for that conclusion. We now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in 0 'Brien for content-neutral restrictions on symbolic speech.
The city of Erie
argues that the ordinance is a content-neutral restriction that is
reviewable under 0 'Brien because the ordinance bans conduct, not
speech; specifically, public nudity. Respondent counters that the
ordinance targets nude dancing and, as such, is aimed specifically at
suppressing expression, making the ordinance a content-based
restriction that must be subjected to strict scrutiny. The ordinance
here, like the statute in Barnes, is on its face a general prohibition
on public nudity. By its terms, the ordinance regulates conduct alone.
It does not
Respondent and Justice Stevens contend nonetheless that the ordinance is related to the suppression of expression because language in the ordinance's preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at Kandyland. . . . In the preamble to the ordinance, the city council stated that it was adopting the regulation "'for the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.'" . . .
As Justice Souter
noted in Barnes, "on its face, the governmental interest in combating
prostitution and other criminal activity is not at all inherently
related to expression." In that sense, this case is similar to 0
'Brien. [In 0 'Brien], the Government regulation prohibiting the
destruction of draft cards was aimed at maintaining the integrity of
the Selective Service System and not at suppressing the message of
draft resistance that 0 'Brien sought to convey by burning his draft
card. So too here, the ordinance prohibiting public nudity is aimed at
combating crime and other negative secondary effects caused by the
presence of adult entertainment establishments like Kandyland and not
at suppressing the erotic message conveyed
by this type of nude dancing. . . .
Pennsylvania Supreme Court acknowledged that one goal of the ordinance
was to combat the negative secondary effects associated with nude
dancing establishments, the court concluded that the ordinance was
nevertheless content based, relying on Justice White's position in
dissent in Barnes for the proposition that a ban of this type
necessarily has the purpose of suppressing the erotic message of the
dance. . . . That is, the Pennsylvania court adopted the dissent's view
in Barnes that "'since the State permits the dancers to perform if they
wear pasties and G-strings but forbids nude dancing, it is
precisely because of the distinctive
expressivecontent of the nude dancing performances at issue in
this case that the State seeks to apply the statutory prohibition." A
majority of the Court rejected that view in Barnes,
and we do so again here.
Respondent's argument that the ordinance is "aimed" at suppressing expression through a ban on nude dancing - an argument that respondent supports by pointing to statements by the city attorney that the public nudity ban was not intended to apply to "legitimate" theater productions - is really an argument that the city council also had an illicit motive in enacting the ordinance. As we have said before, however, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. . . .
We respectfully disagree with that characterization. The public nudity ban certainly has the effect of limiting one particular means of expressing the kind of erotic message being disseminated at Kandyland. But simply to define what is being banned as the "message" is to assume the conclusion. We did not analyze the regulation in 0 'Brien as having enacted a total ban on expression. Instead, the Court recognized that the regulation against destroying one's draft card was justified by the Government's interest in preventing the harmful "secondary effects" of that conduct (disruption to the Selective Service System), even though that regulation may have some incidental effect on the expressive element of the conduct. Because this justification was unrelated to the suppression of O'Brien's antiwar message, the regulation was content neutraL Although there may be cases in which banning the means of expression so interferes with the message that it essentially bans the message, that is not the case here.
Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of the erotic message of nude dancing, we would do so now because the premise of such a view is flawed. The State's interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood. See Renton. . . .
Similarly, even 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 at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis. . . . If States are to be able to regulate secondary effects, then de minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content based. . . .
This case is, in fact, similar to 0 'Brien [and] Ward. The justification for the government regulation in each case prevents harmful "secondary" effects that are unrelated to the suppression of expression. See, e.g., Ward (noting that "the principal justification for the sound-amplification guideline is the city's desire to control noise levels at bandshell events, in order to retain the character of [the adjacent] Sheep Meadow and its more sedate activities," and citing Renton for the proposition that "[ a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others"). While the doctrinal theories behind "incidental burdens" and "secondary effects" are, of course, not identical, there is nothing objectionable about a city passing a general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected speech) and at the same time recognizing that one specific occurrence of public nudity - nude erotic dancing - is particularly problematic because it produces harmful secondary effects.
. . . Here, Erie's ordinance is on its face a content-neutral restriction on conduct. Even if the city thought that nude dancing at clubs like Kandyland constituted a particularly problematic instance of public nudity, the regulation is still properly evaluated as a content-neutral restriction because the interest in combating the secondary effects associated with those clubs is unrelated to the suppression of the erotic message conveyed by nude dancing. . . . The ordinance [is] therefore valid if it satisfies the four-factor test from 0 'Brien for evaluating restrictions on symbolic speech.
Applying that standard here, we conclude that Erie's ordinance is justified under 0 'Brien. The first factor of the 0 'Brien test is whether the government regulation is within the constitutional power of the government to enact. Here, Erie's efforts to protect public health and safety are clearly within the city's police powers. The second factor is whether the regulation furthers an important or substantial government interest. The asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing are undeniably important. And in terms of demonstrating that such secondary effects pose a threat, the city need not "conduct new studies or produce evidence independent of that already generated by other cities" to demonstrate the problem of secondary effects, "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Because the nude dancing at Kandyland is of the same character as the adult entertainment at issue in Renton [and prior cases], it was reasonable for Erie to conclude that such nude dancing was likely to produce the same secondary effects. . . . In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. . . . Regardless of whether Justice Souter now wishes to disavow his opinion in Barnes on this point, the evidentiary standard described in Renton controls here, and Erie meets that standard.
In any event, Erie also relied on its own findings. The preamble to the ordinance states that "the Council of the City of Erie has, at various times over more than a century, expressed its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity." The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had first-hand knowledge of what took place at and around nude dancing establishments in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects. . . . Here, Kandyland has had ample opportunity to contest the council's findings about secondary effects - before the council itself, throughout the state proceedings, and before this Court. Yet to this day, Kandyland has never challenged the city council's findings or cast any specific doubt on the validity ofthose findings. Instead, it has simply asserted that the council's evidentiary proof was lacking. . . .
Finally, it is worth repeating that Erie's ordinance is on its face a content neutral restriction that regulates conduct, not First Amendment expression. And the government should have sufficient leeway to justify such a law based on secondary effects. On this point, 0 'Brien is especially instructive. . . . There was no study documenting instances of draft card mutilation or the actual effect of such mutilation on the Government's asserted efficiency interests. But the Court permitted Congress to take official notice, as it were, that draft card destruction would jeopardize the system. . . .
Justice Souter, however, would require Erie to develop a specific evidentiary record supporting its ordinance. . . . Justice Souter conflates two distinct concepts under 0 'Brien: whether there is a substantial government interest and whether the regulation furthers that interest. As to the government interest, i. e., whether the threatened harm is real, the city council relied on this Court's opinions detailing the harmful secondary effects caused by establishments like Kandyland, as well as on its own experiences in Erie. . . .
As to the second point - whether the regulation furthers the government interest - it is evident that, since crime and other public health and safety problems are caused by the presence of nude dancing establishments like Kandyland, a ban on such nude dancing would further Erie's interest in preventing such secondary effects. To be sure, requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects, but 0 'Brien requires only that the regulation further the interest in combating such effects. . . . It also may be true that a pasties and G-string requirement would not be as effective as, for example, a requirement that the dancers be fully clothed, but the city must balance its efforts to address the problem with the requirement that the restriction be no greater than necessary to further the city's interest.
The ordinance also satisfies 0 'Brien's third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra. The fourth and final 0 'Brien factor - that the restriction is no greater than is essential to the furtherance of the government interest - is satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message. Justice Souter points out that zoning is an alternative means of addressing this problem. It is far from clear, however, that zoning imposes less of a burden on expression than the minimal requirement implemented here. In any event, since this is a content-neutral restriction, least restrictive means analysis is not required. See Ward.
We hold, therefore, that Erie's ordinance is a content-neutral regulation that is valid under 0 'Brien. Accordingly, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this Opinion.
JUSTICE SCALIA, with whom JUSTICE THOMAS
joins, concurring in the judgment.
. . . I agree that the decision of the Pennsylvania Supreme Court must be reversed, but disagree with the mode of analysis the Court has applied.
The city of Erie self-consciously modeled its ordinance on the public nudity statute we upheld against constitutional challenge in Barnes, calculating (one would have supposed reasonably) that the courts of Pennsylvania would consider themselves bound by our judgment on a question of federal constitutional law. In Barnes, I voted to uphold the challenged Indiana statute "not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all." Erie's ordinance, too, by its terms prohibits not merely nude dancing, but the act - irrespective of whether it is engaged in for expressive purposes - of going nude in public. The facts that a preamble to the ordinance explains that its purpose, in part, is to "limit a recent increase in nude live entertainment," that city councilmembers in supporting the ordinance commented to that effect, and that the ordinance includes in the definition of nudity the exposure of devices simulating that condition, neither make the law any less general in its reach nor demonstrate that what the municipal authorities really find objectionable is expression rather than public nakedness. As far as appears (and as seems overwhelmingly likely), the preamble, the councilmembers' comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers or hot-dog vendors, but with lap dancers.
There is no basis for the contention that the ordinance does not apply to nudity in theatrical productions such as Equus or Hair. Its text contains no such limitation. It was stipulated in the trial court that no effort was made to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the time the ordinance became effective. . . . [But one] instance of nonenforcement-against a play already in production that prosecutorial discretion might reasonably have "grandfathered" - does not render this ordinance discriminatory on its face. . . .
Moreover, even were I to conclude that the city of Erie had specifically singled out the activity of nude dancing, I still would not find that this regulation violated the First Amendment unless I could be persuaded (as on this record I cannot) that it was the communicative character of nude dancing that prompted the ban. When conduct other than speech itself is regulated, it is my view that the First Amendment is violated only "where the government prohibits conduct precisely because of its communicative attributes." Here, even if one hypothesizes that the city's object was to suppress only nude dancing, that would not establish an intent to suppress what...nude dancing communicates. I do not feel the need, as the Court does, to identify some "secondary effects" associated with nude dancing that the city could properly seek to eliminate. I am highly skeptical, to tell the truth, that the addition of pasties and g-strings will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease. 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.
JUSTICE SOUTER, concurring in part and dissenting in part.
[I agree] with the analytical approach that the plurality employs in deciding this case. Erie's stated interest in combating the secondary effects associated with nude dancing establishments is an interest unrelated to the suppression of expression under 0 'Brien, and the city's regulation is thus properly considered under the 0 'Brien standards. I do not believe, however, that the current record allows us to say that the city has made a sufficient evidentiary showing to sustain its regulation, and I would therefore [remand] the case for further proceedings. . . .
[Intermediate] scrutiny requires a regulating government to make some demonstration of an evidentiary basis for the harm it claims to flow from the expressive activity, and for the alleviation expected from the restriction imposed. That evidentiary basis may be borrowed from the records made by other governments if the experience elsewhere is germane to the measure under consideration and actually relied upon. . . .
By these standards, the record before us today is deficient in its failure to reveal any evidence on which Erie may have relied, either for the seriousness of the threatened harm or for the efficacy of its chosen remedy. The plurality does the best it can with the materials to hand, but the pickings are slim. . . . [T]he city council's closest approach to an evidentiary record on secondary effects and their causes was the statement of one councilor, during the debate over the ordinance, who spoke of increases in sex crimes in a way that might be construed as a reference to secondary effects. But that reference came at the end of a litany of concerns ("free condoms in schools, drive-by shootings, abortions, suicide machines" and declining student achievement test scores) that do not seem to be secondary effects of nude dancing. Nor does the invocation of Barnes v. Glen Theatre, Inc., in one paragraph of the preamble to Erie's ordinance suffice. The plurality opinion in Barnes made no mention of evidentiary showings at all. . . .
There is one point, however, on which an evidentiary record is not quite so hard to find, but it hurts, not helps, the city. The final 0 'Brien requirement is that the incidental speech restriction be shown to be no greater than essential to achieve the government's legitimate purpose. To deal with this issue, we have to ask what basis there is to think that the city would be unsuccessful in countering any secondary effects by the significantly lesser restriction of zoning to control the location of nude dancing, thus allowing for efficient law enforcement, restricting effects on property values, and limiting exposure of the public. The record shows that for 23 years there has been a zoning ordinance on the books to regulate the location of establishments like Kandyland, but the city has not enforced it. . . . Even on the plurality's view of the evidentiary burden, this hurdle to the application of 0 'Brien requires an evidentiary response. . . .
Careful readers, and not just those on the Erie City Council, will of course realize that my partial dissent rests on a demand for an evidentiary basis that I failed to make when I concurred in Barnes. I should have demanded the evidence then, too, and my mistake calls to mind Justice Jackson's foolproof explanation of a lapse of his own, when he quoted Samuel Johnson, "'Ignorance, sir, ignorance.'" . I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late.
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins, dissenting.
Far more important than the question whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses today. Until now, the "secondary effects" of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protected speech. Indeed, the plurality opinion concludes that admittedly trivial advancements of a State's interests may provide the basis for censorship. The Court's commendable attempt to replace the fractured decision in Barnes v. Glen Theatre, Inc., with a single coherent rationale is strikingly unsuccessful; it is supported neither by precedent nor by persuasive reasoning.
. . . [Nude dancing] receives First Amendment protection, even if that protection lies only in the "outer ambit" ofthat Amendment. Erie's ordinance, therefore, burdens a message protected by the First Amendment. If one assumes that the same erotic message is conveyed by nude dancers as by those wearing miniscule costumes, one means of expressing that message is banned; if one assumes that the messages are different, one of those messages is banned. In either event, the ordinance is a total ban.
The Court relies on the so-called "secondary effects" test to defend the ordinance. The present use of that rationale, however, finds no support whatsoever in our precedents. Never before have we approved the use of that doctrine to justify a total ban on protected First Amendment expression. On the contrary, we have been quite clear that the doctrine would not support that end. . . .
. . . [In] both Renton and American Mini Theatres, the zoning ordinances were analyzed as mere "time, place, and manner" regulations. Because time, place, and manner regulations must "leave open ample alternative channels for communication of information," a total ban would necessarily fail that test. . . .
The reason we have limited our secondary effects cases to zoning and declined to extend their reasoning to total bans is clear and straightforward: A dispersal that simply limits the places where speech may occur is a minimal imposition whereas a total ban is the most exacting of restrictions. The State's interest in fighting presumed secondary effects is sufficiently strong to justify the former, but far too weak to support the latter, more severe burden. Yet it is perfectly clear that in the present case - to use Justice Powell's metaphor in American Mini Theatres - the city of Erie has totally silenced a message the dancers at Kandyland want to convey. . . .
The Court's use of the secondary effects rationale to pennit a total ban has grave implications for basic free speech principles. Ordinarily, laws regulating the primary effects of speech, i. e., the intended persuasive effects caused by the speech, are presumptively invalid. Under today's opinion, a State may totally ban speech based on its secondary effects - which are defined as those effects that "happen to be associated" with speech, Boos v. Barry - yet the regulation is not presumptively invalid. Because the category of effects that "happen to be associated" with speech includes the narrower subset of effects caused by speech, today's holding has the effect of swallowing whole a most fundamental principle of First Amendment jurisprudence.
mishandling of our secondary effects cases is not limited to its
approval of a total ban. It compounds that error by dramatically
reducing the degree to which the State's interest must be furthered by
the restriction imposed on speech, and by ignoring the critical
difference between secondary effects caused by speech and the
incidental effects on speech that may be caused by a regulation of
conduct. In what can most delicately be characterized as an enormous
understatement, the plurality concedes that "requiring dancers to wear
pasties and G-strings may not
greatly reduce these secondary effects." To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible. . . . Nevertheless, the plurality concludes that the "less stringent" test announced in United States v. 0 'Brien "requires only that the regulation further the interest in combating such effects." It is one thing to say, however, that 0 'Brien is more lenient than the "more demanding standard" we have imposed in cases such as Texas v. Johnson. It is quite another to say that the test can be satisfied by nothing more than the mere possibility of de minimis effects on the neighborhood.
The Court is also mistaken in equating our secondary effects cases with the "incidental burdens" doctrine applied in cases such as 0 'Brien; and it aggravates the error by invoking the latter line of cases to support its assertion that Erie's ordinance is unrelated to speech. The incidental burdens doctrine applies when "'speech' and 'nonspeech' elements are combined in the same course of conduct," and the government's interest in regulating the latter justifies incidental burdens on the former. Secondary effects, on the other hand, are indirect consequences of protected speech and may justify regulation of the places where that speech may occur. When a State enacts a regulation, it might focus on the secondary effects of speech as its aim, or it might concentrate on nonspeech related concerns, having no thoughts at all with respect to how its regulation will affect speech - and only later, when the regulation is found to burden speech, justify the imposition as an unintended incidental consequence. But those interests are not the same, and the Court cannot ignore their differences and insist that both aims are equally unrelated to speech simply because Erie might have "recognized" that it could possibly have had either aim in mind. . . .
Of course, the line between governmental interests aimed at conduct and unrelated to speech, on the one hand, and interests arising out of the effects of the speech, on the other, may be somewhat imprecise in some cases. In this case, however, we need not wrestle with any such difficulty because Erie has expressly justified its ordinance with reference to secondary effects. Indeed, if Erie's concern with the effects of the message were unrelated to the message itself, it is strange that the only means used to combat those effects is the suppression of the message. For these reasons, the Court's argument that "this case is similar to 0 'Brien," is quite wrong. . . The Court cannot have its cake and eat it too - either Erie's ordinance was not aimed at speech and the Court may attempt to justify the regulation under the incidental burdens test, or Erie has aimed its law at the secondary effects of speech, and the Court can try to justify the law under that doctrine. But it cannot conflate the two with the expectation that Erie's interests aimed at secondary effects will be rendered unrelated to speech by virtue of this doctrinal polyglot.
Correct analysis of the issue in this case should begin with the proposition that nude dancing is a species of expressive conduct that is protected by the First Amendment. As Chief Judge Posner has observed, nude dancing fits well within a broad, cultural tradition recognized as expressive in nature and entitled to First Amendment protection. The nudity of the dancer is both a component of the protected expression and the specific target of the ordinance. It is pure sophistry to reason from the premise that the regulation of the nudity component of nude dancing is unrelated to the message conveyed by nude dancers. Indeed, both the text of the ordinance and the reasoning in the Court's opinion make it pellucidly clear that the city of Erie has prohibited nude dancing "precisely because of its communicative attributes."
purpose of Erie's ordinance precludes reliance on the judgment in
Barnes as sufficient support for the Court's holding today. . . . As
presented to us, the ordinance is deliberately targeted at Kandyland's
type of nude dancing (to the
This narrow aim is confirmed by the expressed views of the Erie City councilmembers who voted for the ordinance. The four city councilmembers who approved the measure (of the six total councilmembers) each stated his or her view that the ordinance was aimed specifically at nude adult entertainment, and not at more mainstream forms of entertainment that include total nudity, nor even at nudity in general. . . . Given that the Court has not even tried to defend the ordinance's total ban on the ground that its censorship of protected speech might be justified by an overriding state interest, it should conclude that the ordinance is patently invalid. . . .