Vice Squad
Friday, May 28, 2004
Completing the Nude Dancing Trifecta: Erie v. Pap's A.M.

Those Crescat folks have a lot to answer for: this is the third post that their nude dancing discussion has inspired on Vice Squad. The most recent post described the 1991 Supreme Court case of Barnes v. Glen Theatre. Today, we turn to the 2000 case of Erie v. Pap's A.M. But first, some background...

The four-prong test (from the draft card case) that the Supreme Court applied in Barnes
is only appropriate if the restriction under review is "content neutral." If the
restriction is content based (for instance, applies on the basis of what is being said
as opposed to the time, place, and manner in which it is expressed), then a more
demanding test is appropriate. Specifically, the Supreme Court looks at content-based
restrictions with "strict scrutiny." A regulation can survive strict scrutiny only if
it serves a compelling government interest and does so through means that are narrowly
tailored to minimize the amount of speech that is affected.

A Pennsylvania court, faced with an ordinance very similar to the Indiana statute
litigated in Barnes, felt that, except for the issue of whether nude dancing gets any
First Amendment protection (it does), the four separate opinions in Barnes provided
no clear precedent on other issues. The Pennsylvania court decided that the city of
Erie's public nudity ordinance was content based and unconstitutional under the strict
scrutiny standard. The Supreme Court disagreed, in Erie v. Pap’s A.M. Further, a
plurality of justices based their conclusion that the ordinance was content neutral
by adopting the "secondary effects" approach that Justice Souter had employed in Barnes:
the state's interest in reducing these harms "is unrelated to the suppression of the
erotic message conveyed by nude dancing." But with four separate opinions again
generated, Erie has not significantly cleared up the tangle of nude dancing

Recall that the Twenty-First Amendment, which brought an end to alcohol Prohibition,
did not legalize alcohol manufacturing, distribution, and sales; rather, it gave the
power to regulate alcohol to the individual states. For this reason, a state regulation
that controls nude dancing only in establishments in which alcohol is sold had, at
least until recently, an additional basis for surviving Supreme Court review. The
ability of the Twenty-First Amendment to trump other Constitutional provisions has
been impaired by 44 Liquormart v. Rhode Island, 517 U.S. 484 (1996), however. Earlier
this week, Will Baude at Crescat has reported on an upcoming case on mail-order
wine that soon will help demarcate the power of the 21st Amendment.

Municipalities and states continue to adopt all sorts of regulations that apply
to adult establishments, including distance requirements between dancers and patrons,
bans on nudity, bans on tipping, and so on. The Constitutional status of these rules
currently is rather confused. While the Supreme Court claims that nude dancing receives
some First Amendment protection, courts tend to apply their "tests" in ways that are
unfavorable to nude dancing, even when it seems that the obvious application of the test
would lead in the other direction -- though the outcomes of cases have varied across
Federal court districts. For critiques of the current situation, see Kevin R. Bruning,
"Note: Nudity and Alcohol: Morality Lies in Public Discussion," Stetson Law Review
29: 775-810, Winter 2000; and Jenna Doviak and Gina Scamby, "Casenote: Table Dancing
Around the First Amendment: The Constitutionality of Distance Requirements in Colacurio
v. City of Kent." Villanova Sports and Entertainment Law Journal 7: 151-180, 2000.

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