City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)
Author: Sam Biers

Facts: Erotic dancers were no longer allowed to dance nude, they must wear a minimum of pasties and G-String after the City passed an ordinance banning public nudity when a person knowingly or intentionally appears in public nude.  

Issue(s): Whether the nudity ordinance is content neutral regulation or whether it impacts expressive conduct? 

Holding: The ordinance on its fact is content-neutral restriction on conduct, b/c it is aimed at the secondary criminal effect of that conduct, thus it is N/T’d to protect the city’s interest decreasing associative criminal activity.

Procedure: Pap’s challenged City ordinance banning nude dancing sought Injunction and Declaratory relief.  Penn. Sup. Ct held granted injunction and held the ordinance violated Respondent’s freedom of expression b/c it was content based–suppress erotic message of nudity.  U.S.S.Ct.  Reversed.

Rule(s): 1^st

Rationale: Barnes Indiana’s ban on nudity did not violate 1^st Amend, but without a clear majority.

Ordinance here regulates conduct alone.  It does not target nudity that contains an erotic message; but it bans all public nudity regardless of expressive elements.  

GI = reduce crime that accompanies nude establishments–combating crime. Studies proof increase.  Criminal activity is not related to expressive conduct and the ordinance does not attempt to regulate the erotic message of nudity. 

The ban on public nudity is not different from ban on burning draft cards in O’Brien.  Here, the ban is not a complete ban on expression.  The state’s Int in preventing harmful secondary effects is not related to suppression of expression.  Even if the ordinance has some effect on the erotic message, dancers are free to perform wearing pasties and G-Strings, thus any effect is minimal.

Law is valid if it passes the O’Brien (4) Factor Test: 1) Rbl Govt Int must exist; 2) Regulation must further the GI (not eliminate the secondary effects); 3) Any incidental speech restriction must be no greater than necessary to further GI; and 4) address whether any alternative means of addressing the problem exist.

DISSENT: Secondary effects has only been used to regulate location, Majority agrees that pasties and G-Strings will not greatly reduce secondary effects.  Evid that City had an ordinance regulating the location, without enforcement, and therefore the nudity ordinance is not “no greater than necessary.”  No matter how the ordinance is applied the result is a total ban.

Pl’s A: Ordinance violates freedom of expression–state of nudity in dance.