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Law School Case Brief

City of Erie v. Pap's A.M. - 529 U.S. 277, 120 S. Ct. 1382 (2000)


To determine what level of scrutiny applies to a local ordinance under U.S. Const. amend. I, the court must decide whether the state's regulation is related to the suppression of expression. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the less stringent O'Brien standard 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 O'Brien test and must be justified under a more demanding standard.


The City of Erie, Pennsylvania enacted a public indecency ordinance that prohibited knowingly or intentionally appearing in public in a "state of nudity." In order to comply with this ordinance, dancers at an Erie establishment, which featured female nude dancing, had to wear, at a minimum, "pasties" and a "G-string." Two days after the ordinance went into effect, the corporation which operated the nude dancing establishment filed a complaint against the City of Erie, the mayor, and members of the city council, seeking declaratory relief and a permanent injunction against the enforcement of the ordinance. The Court of Common Pleas of Erie County granted the permanent injunction, and struck down the ordinance as unconstitutional. On cross appeals, the Commonwealth Court reversed the trial court's order. The Pennsylvania Supreme Court granted review and reversed, reasoning that the ordinance's public nudity provisions violated the corporation's right to freedom of expression as protected by the Federal Constitution's First and Fourteenth Amendments. Furthermore, the state supreme court held that nude dancing was expressive conduct entitled to some quantum of protection under the First Amendment and that the ordinance in question was content based and thus subject to strict scrutiny.


Was the ordinance in question unconstitutional for violating plaintiff’s First Amendment rights?




The Court held that even though nude dancing performed as entertainment was expressive conduct entitled to some protection under the First Amendment, the City’s interest in combating the negative secondary effects associated with nude dancing establishments, which effects assertedly included violence, sexual harassment, public intoxication, prostitution, and the spread of sexually transmitted diseases, was a legitimate government interest unrelated to the suppression of expression. Thus, the Court held that the city’s public indecency ordinance ought to be evaluated under a four-factor test from United States v O'Brien, which include the following: (i) whether the government regulation was within the constitutional power of the government to enact; (ii) whether the regulation furthered an important or substantial government interest; (iii) whether the government interest was unrelated to the suppression of free expression; and (iv) whether the restriction was not greater than was essential to the furtherance of the government interest. In the case at bar, the Court held that the city’s ordinance was a content-neutral regulation that satisfied the O’Brien’s test so as to be sufficiently justified under the First Amendment.

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