City Of Erie v. Paps A.M.: Contorting Secondary Effects And Diluting Intermediate Scrutiny To Ban Nude Dancing
| Author | John B. Kopf III |
| Pages | 823-859 |
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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
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 resultPage 824 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.
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
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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
The Court considers a number of factors in determining whether conduct warrants First Amendment protection and the extent of thatPage 826 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
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 to expressive conduct only when (1) the actor intends to convey a particular message, and (2) there is a great likelihood that those who view the conduct would understand the message.33
If the Court has determined that the conduct involved is symbolic speech entitled to First Amendment protection, the Court applies a four-part test to determine whether a restriction on the symbolic speech is constitutional.34 To avoid being struck down as unconstitutional: (1) the regulation must be within the power of the government to enact, (2) the government's interest must be unrelated to the suppression of free expression, (3) the regulation must further an important or substantialPage 827 government interest, and (4) the restriction must be no greater than is essential to the furtherance of the government's interest.35
Applying the O'Brien standard, courts have protected a teacher's refusal to recite the Pledge of Allegiance,36 an individual's choice to wear a jacket bearing an obscene message,37 a protestor's right to picket,38 and an individual's refusal to rise in a courtroom at the command of a United States marshal.39
Another way of restating the second part of the O'Brien test40 is to ask if the government regulation is content-based or content-neutral.41 This analysis is pivotal in First Amendment jurisprudence.42
The distinction between content-based and content-neutral regulations is pivotal because it determines the degree of scrutiny the Court will apply to the regulation-if it is content-neutral, the Court will employ a less stringent standard; if it is content-based, the Court will employ a more demanding standard.43
A content-based regulation is either aimed at the communicative impact of expression,44 or it is based on the substance of expression (for example, the subject matter, topic, or meaning of the expression).45 The Court stated "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, itsPage 828 subject matter, or its content."46 For example, the Court found that a city ordinance that only permitted peaceful picketing within one hundred fifty feet of a public school during certain hours was a content-based regulation because it described impermissible picketing in terms of subject matter.47In another case, the Court found a portion of a Massachusetts state criminal statute forbidding a corporation from making certain political expenditures and not others content-based since it gave one side of a political debate an advantage over the other.48
On the other hand, content-neutral regulations are those aimed at the non-communicative impact of the expression.49 "These regulations are not based on subject matter, but rather on accidental attributes with which one can tamper without altering the meaning being conveyed."50 For example, the Court found an ordinance requiring that literature be distributed and sold from a licensed booth at a state fair was content-neutral because it applied to everyone who wanted to sell and distribute literature.51 In another case, the Court found a New York City ordinance requiring the use of city-provided technicians and sound systems for performances in the Central Park Bandshell content-neutral because the purpose of the ordinance was to avoid intrusion into residential areas resulting from volume problems and "had nothing to do with content."52
When determining whether a regulation is content-based or content-neutral in speech cases generally, the Court has stated:
The government's purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others. Government regulation of expressive...
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