City Of Erie v. Paps A.M.: Contorting Secondary Effects And Diluting Intermediate Scrutiny To Ban Nude Dancing

Resumen

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I. Introduction. II. Background. A. First Amendment Protection of Expression. B. The First Amendment Analytical Framework-Expressive Conduct. 1. Symbolic Speech-conduct warranting First Amendment protection. 2. Content-Based or Content-Neutral Analysis-Determining the Level of Protection. 3. The Secondary Effects Doctrine-Treating Content-Based Regulations as Content-Neutral. III. Discussion & Analysis of City of Erie v. Pap's A.M. A. Factual Background & Procedural Posture. 1. The Moral Climate of the Erie City Council Meeting. 2. Erie Bans Public Nudity. 3. The Proceedings in the State Courts. a. The State Trial Court. b. The State Appellate Court. c. The State Supreme Court. 4. Kandyland Closes Its Doors. B. Discussion of the Treatment by the United States Supreme Court. 1. The Issues Before the Court. 2. The Judgment of the Court-Fragmentation. 3. The Opinions of the Court-More Fragmentation. a. Minimal Majority Agreement. b. Justice O'Connor's Plurality Opinion. c. Justice Souter's Opinion Concurring in Part and Dissenting in Part. d. Justice Scalia's Opinion Concurring in Judgment. e. Justice Steven's Dissenting Opinion. C. Analysis of the Court's Decision. 1. Stretching and Contorting Secondary Effects. a. Conflating Secondary Effects and Incidental Burdens. b. The New Application of Secondary Effects. 2. Diluting Intermediate Scrutiny. IV. Significance. V. Conclusion.

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Extracto

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City Of Erie v. Paps A.M.: Contorting Secondary Effects And Diluting Intermediate Scrutiny To Ban Nude Dancing

Mr. Weston: [N]ude entertainment has become a significant staple of the American cultural scene . . . .

Justice Scalia: It depends where in America you are, Mr. Weston.

Mr. Weston: Well, I'm not sure that's correct, Justice Scalia.1

I. Introduction

In the end, Mr. Weston lost the argument-Justice Scalia and five of his colleagues held the City of Erie, Pennsylvania, could remove this "staple of the American cultural scene"2 from the community and completely ban nude dancing.3

Erie City Council members strongly opposed the city's "lewd and immoral" nude dance clubs.4 In an effort to promote decency and values, and to combat nude dancing's harmful effects,5 the council members passed an ordinance making it a summary offense to appear nude in public.6 As a result, the City's erotic dancers would have to wear at least g-strings and pasties.7

Although its doubtful mandatory g-strings and pasties will effectively reduce crime or establish standards of decency,8 the most significant result of City of Erie v. Pap's A.M. is how the Court manipulated its earlier First Amendment decisions9 to uphold an ordinance aimed specifically at nude dance clubs.10

The Court's "hopelessly fragmented"11 decision sets a dangerous precedent by conflating traditional secondary effects and incidental burdens analysis, and by diluting the intermediate scrutiny standard.12 The Court says nude erotic dancing is entitled to First Amendment protection,13yet it permits local government to ban it entirely.14

This casenote examines the logic and implications surrounding the Justices' opinions and concludes that the decision will not only reduce the value of some First Amendment protections, but will also create confusion among courts and practitioners attempting to resolve the decision's inconsistent application of traditional First Amendment rules.

II. Background

A. First Amendment Protection of Expression

The First Amendment literally mandates protection of freedom of speech.15 Beyond protection of speech in the literal sense, the First Amendment is construed broadly to protect expression in a more general sense.16

The First Amendment's protection of expression serves significant societal interests.17 Indeed, Justice Harlan stated the First Amendment's protection of expression was designed to afford freedom that would "ultimately produce a more capable citizenry and more perfect polity."18

The protection of expression furthers society's interest in gaining access to ideas.19 In turn, this access promotes better self-governance by the people.20 It facilitates productive economic decisions, and it allows society to obtain temporal and spiritual happiness more readily.21

The Court's role in this area of jurisprudence is to balance the interests of the First Amendment against other important societal interests.22 Over the years, the Court's balancing of these interests in various contexts has created a sort of hierarchy of particular forms of expression with respect to First Amendment analysis.23 Some expressions are not afforded First Amendment protection,24 some are afforded full protection,25 and some are afforded a level of protection somewhere in the middle.26

B. The First Amendment Analytical Framework-Expressive Conduct

The Court considers a number of factors in determining whether conduct warrants First Amendment protection and the extent of that protection. The Court developed a two-part test to distinguish between protected conduct (symbolic speech) and unprotected conduct.27 The level of First Amendment protection for symbolic speech turns on whether the regulation is content-based or content-neutral.28 In addition, the Court created a "secondary effects" doctrine, which has been applied by the Court to justify treating content-based regulations as content-neutral, with the effect of limiting the extent of First Amendment protection for particular forms of expression, even if the government is specifically targeting those forms of expression.29

1. Symbolic Speech-conduct warranting First Amendment protection

The Court recognized First Amendment protection for symbolic acts as early as 1931 when it held that a state law prohibiting the display of a red flag was unconstitutional.30 Symbolic speech cases involve conduct containing communicative elements.31

The Court recognized that a limitless variety of conduct might be labeled symbolic speech because any person engaging in particular conduct might arguably intend to express an idea.32 Accordingly, the Court has limited First Amendment protection ...

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