The First Amendment gone awry: City of Erie v. Pap's A.M., ailing analytical structures, and the supression of protected expression.

• Author: Leahy, Christopher Thomas
• Position: Review

INTRODUCTION

"[T]here is an implicit narrative which the viewer is left to complete in his imagination. That is why it is important that the striptease not end in a bathing suit, because a bathing suit is for swimming, not for sex." (1) There are likely few groups who, while enjoying a vivid academic exchange in the much-celebrated marketplace of ideas, will be interrupted by one member's call to move the debate to a nearby all-nude dance club for additional intellectual perspective. Similarly, while some might be disappointed, it is unlikely that any citizen would be irreparably harmed by the closing of their local "Kandyland" go-go. So now, after years of exhaustive debate and the perpetually prominent role of explicit adult entertainment in the pantheon of First Amendment scholarship, why all the fuss about another nude dancing case? The answer is complex, yet it is instructive as to the degree First Amendment jurisprudence has gone awry. In this Comment, I contend the state of the First Amendment, viewed through the instructive lens of adult entertainment, is far from strong. I argue that, despite the basic First Amendment value that even the most unpopular and perhaps unnecessary expression need be preserved in the face of the suppressive force of a majority, (2) the Supreme Court has taken profoundly disturbing steps in City of Erie v. Pap's A.M. toward moving itself from the position of First Amendment rights guarantor and into the position of disinterested spectator of government-imposed majoritarian preferences. Plainly spoken, the plurality's manipulation of doctrine, precedent, and justifications in Pap's has grave implications for the freedom of any expression that challenges societal orthodoxy.

A thorough foray into modern First Amendment doctrine unquestionably must consider the pernicious effect of Pap's (3) on underlying free speech values. Indeed, adult expression doctrine is an excellent avenue for examination of the larger state of the First Amendment; explicit adult entertainment occupies a unique place among forms of expression because such a large portion of the populace allegedly disfavors it under many different social, political, and religious rubrics. (4) Constitutional protection of adult entertainment is also an issue of critical import as increasing numbers of municipalities attempt urban renewal initiatives that include regulations designed to relocate or suppress a growing number (5) of adult-oriented businesses. (6) "As of February 1997, Americans spend more money at strip clubs than at Broadway, off-Broadway, regional, and non-profit theaters; than at the opera, the ballet, and jazz and classical music performances--combined." (7) As such, the use of zoning (8) and general laws (9) to limit or eliminate adult entertainment establishments is a particularly thorny issue because it inextricably involves conflicts between passionate defenders and equally fervent detractors, as well as difficult questions of morality, government censorship, and legislative motive. (10) Even the most principled legal debates on the topic are usually "fraught with some emotionalism." (11)

Until the early 1970s, the U.S. Supreme Court did not acknowledge protection for nude dancing; states were free to enact any limitations they desired. (12) Since then, a fierce debate has raged over the level of protection owed to nonobscene adult expression under the First Amendment of the U.S. Constitution. (13) Although the Court has consistently held that nude dancing is entitled to some degree of First Amendment protection, over the last thirty years it has developed, adapted, and continually expanded a line of doctrine that has granted broad discretion to local governments to suppress that expression as a means to combat deleterious "secondary effects." (14) Prominent commentators have derided this doctrine as a "gravely erod[ing] the First Amendment's protections" (15) and have decried its "corrosive impact" (16) on First Amendment jurisprudence. Nevertheless, this doctrine has cut an ever-widening swath across First Amendment freedoms.

This doctrinal debate reached an ideological breaking point in the Court's important but hopelessly splintered 1991 decision in Barnes v. Glen Theatre, Inc., where a battle-worn plurality answered the threshold question of whether nude dancing constituted expressive conduct in the affirmative. (17) A decade of confusion followed as courts tried to cull from Barnes a cohesive framework for examining the constitutionality of laws that had the effect of restricting adult expression. (18) In 2000, the Court seized an opportunity to revisit and clarify this clouded doctrine when the Pennsylvania Supreme Court overturned a City of Erie general nudity ordinance on the grounds that it unconstitutionally restricted free expression rights of nude dancing entertainers. (19)

Instead of taking the opportunity to pull back from its heavily criticized prior decisions, in City of Erie v. Pap's the Court actually extended the secondary effects doctrine beyond the pale of precedent, with dangerous implications for increased prohibition of protected expression. In doing so, the Court misread existing precedent and misapplied First Amendment analysis both by entrenching a view of nonobscene expression as low-value speech and by adhering to the nonobvious conclusion that general laws that target specific adult expression merit only lower-level scrutiny reserved for content-neutral laws. Furthermore, the Court's decision in City of Erie v. Pap's has unleashed a dangerously deferential secondary effects justification that may threaten a wider array of protected speech. In effect, the Pap's Court has built, stoked, and released a runaway steam engine in the guise of the secondary effects doctrine and has virtually lashed adult-oriented expression to the tracks a few miles down the line. This Comment argues that the doctrine expounded in City of Erie v. Pap's must be both restrained and reevaluated before municipalities use Pap's to exert increasing power to further suppress controversial expression.

Part I of this Comment provides background on the 2000 Pennsylvania Supreme Court Pap's v. City of Erie case. Part II provides a detailed explication of the evolution of adult entertainment doctrine. First, I briefly examine the obscene/nonobscene distinction in the aftermath of the landmark 1973 obscenity case of Miller v. California. (20) I describe the prevailing content discrimination analysis used to examine laws under the First Amendment. I then provide a thorough description of the application of the content discrimination analytical framework in adult entertainment cases and the development of the secondary effects doctrine through Barnes v. Glen Theatre, Inc. (21) Part III discusses the application of those precedents and principles by the U.S. Supreme Court in Pap's and offers an analysis of the decision's most important points. In Part IV, I offer my analysis of the dangers of the Pap's decision. Finally, in Part V, I recommend changes the Court should consider in the application of First Amendment adult expression doctrine. A brief Conclusion follows.

1. SETTING THE SCENE: PAP'S A.M. V. CITY OF ERIE

   In September of 1994, the Erie, Pennsylvania, City Council enacted City of Erie Ordinance 75-1994, making it a summary offense to knowingly or intentionally appear in public in a state of nudity. (22) To comply with this ordinance, a female over the age of ten would have to wear at least what are colloquially known as "pasties" and a "G-string."

   Pap's A.M. ("Pap's") operated a totally nude dancing establishment in Erie known as "Kandyland." Shortly after the ordinance became effective, Pap's filed a complaint in equity against the City of Erie, the Mayor, and the City Council seeking a declaratory judgment that the ordinance was unconstitutional and requesting permanent injunctive relief. (23) In January of 1995, the Court of Common Pleas of Erie County struck down the ordinance as unconstitutionally overbroad. (24) On cross-appeals, the Commonwealth Court--citing Justice Souter's concurrence in Barnes as binding precedent (25) -- reversed the trial court's order on two grounds: that the holding of unconstitutional overbreadth was in error and that the ordinance did not infringe impermissibly on Pap's right to freedom of expression. (26)

   The Pennsylvania Supreme Court granted review on both grounds and held the ordinance violated the free expresion rights of Pap's under the First and Fourteenth Amendments to the U.S. Constitution. (27) At the outset, the court held that nude dancing is expressive conduct and is entitled to "some quantum of protection under the First Amendment." (28) The court next examined whether the governmental interest in enacting the ordinance was content-based or content-neutral. After asserting that no clear precedent arises out of Barnes' "`splintered and ... non-harmonious opinions,'" (29) the court conducted an independent examination of the ordinance and concluded that it was content-based and deserving of strict scrutiny. (30) Although the court conceded that one of the purposes behind the ordinance was to combat negative secondary effects, it found an "unmentioned purpose" that was "inextricably bound up with [the] stated purpose"--that of impacting negatively on the erotic message of nude dancing. (31) Specifically, the court agreed with Justice White's dissent in Barnes, noting that "[i]t is only because nude dancing performances may generate emotions and feelings of eroticism and sensuality among the spectators that the State seeks to regulate such expressive activity." (32)

   After applying strict scrutiny, the court found that the ordinance failed the narrow tailoring requirement (33) and severed the public nudity provisions after finding them violative of the First Amendment to the U.S. Constitution. (34) This holding obviated the need to decide the...