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By Adultinternetlaw.com

On March 29, 2000, the United States Supreme Court ruled on the constitutionality of a town ordinance which prohibited public nudity [City of Erie v. Pap A.M., 2000 Daily Journal D.A.R. 3255]. The ordinance was challenged by the owner of a strip club. While the subject of exotic dancing in strip clubs may not pertain directly to the adult Internet, I think that a lot of webmasters will find the Court's discussion as to freedom of expression rights to be both educational and enlightening.

Erie, Pennsylvania passed an ordinance making it illegal to appear in public in a "state of nudity". A totally nude dancing club, Kandyland, was forced to comply with the ordinance by having the dancers wear pasties on their breasts and G-strings. Kandyland filed an injunction to prevent the ordinance from being enforced, as it preferred having its dancers perform completely nude.

The case went up to the Pennsylvania Supreme Court, where it was determined that the ordinance violated Kandyland's freedom of expression rights as protected by the First and Fourteenth Amendments to the U.S. Constitution. The case was then taken up by the U.S. Supreme Court, where in a 7-2 decision, it was held that the ordinance is in fact constitutional, reversing the opinion of the Pennsylvania Supreme Court.

I will not go into complete detail as to the Court's reasoning for upholding the ordinance. Rather, I will rather focus on the Court's discussion of freedom of expression as it pertains to nudity.

The First Amendment to the U.S. Constitution protects the right to free speech and expression. The City of Erie Court noted, though, that the act of being nude in and of itself is not entitled to First Amendment protection, because it is not an inherently expressive condition. [I know, I know, we could debate that one for hours. I'm just reporting to you what the Supreme Court has determined.] The question is whether nude dancing is a form of expression, and hence entitled to First Amendment protection.

Eight of nine members of the Supreme Court earlier held in the case Barnes v. Glen Theatre, Inc. that nude dancing is expressive conduct entitled to a degree of protection under the First Amendment. The Court held in City of Erie, however, that nude dancing "falls only within the outer ambit of the First Amendment's protection." In other words, nude dancing does not receive the same latitude of protection as does speech.

The City of Erie argued that the ordinance is targeted toward banning conduct (appearing in public nude), not expression. Kandyland argued that the ordinance targeted nude dancing, and so sought to regulate expression. The Court held that since the ordinance banned all nudity, and not just dancing in strip clubs, the ordinance was limited to restricting conduct rather than expression. As such, the ordinance was subject to a less-stringent standard in determining whether it violated constitutional rights. If the Court had determined that the ordinance had targeted a form of expression, a strict standard would have been applied in determining whether constitutional rights were violated.

Importantly, the Court determined that the purpose of the ordinance was not to suppress the erotic message conveyed by nude dancing. Rather, it held that the ordinance was intended to deter the secondary effects of public nudity that adversely impact public health, safety and welfare, such as violence, sexual harassment, public intoxication, prostitution, and the spread of sexually transmitted diseases. The Court indicated that governmental interest in combating these secondary effects of nude live entertainment are not at all related to regulating expression, but to restricting certain conduct and the known adverse effects thereof.

Kandyland argued that the ordinance was in fact targeted toward restricting expression, since the ordinance banned nude dancing but according to the City Attorney, would not be enforced against local theater productions involving nudity. Thus, Kandyland argued that the city council actually had an illicit motive in enacting the ordinance - to target solely nudity in strip clubs. The Court held that it would "not strike down an otherwise constitutional statute on the basis of an alleged illicit motive." As there were proven negative secondary effects from nude live dancing, but not from nude theater performances, the Court was not persuaded by Kandyland's argument.

The message that the Court attempted to portray is that in determining that the ordinance is constitutional, the Court was not in any way trying to hamper freedom of expression (ie to dance in the nude publicly). The primary purpose for the ordinance was to diminish the known negative side effects of public nudity. If in doing so some freedom of expression is limited, albeit unintentionally, so be it. In other words, the Court found that a minimal limitation of expression as a side effect of the ordinance outweighed the positive effect of preventing crimes and other activities that threatened public health, safety and welfare. After all, the performers are still free to dance wearing pasties and G-strings, so much of the expression generated from the dancing is unhindered. The court held that any effect on the form of expression from having the dancers wear pasties and G-strings is minimal.

The U.S. Supreme Court seems to be saying that since it is a fact that crime rates rise in the vicinity of strip clubs, cities and towns are entitled to enact anti-nudity ordinances in an attempt to curb those enhanced crime rates. As the Court itself presciently points out, however, how much are these negative secondary effects actually diminished by requiring strippers to wear pasties and G-strings? I for one doubt there is any appreciable drop in the crime rate when nude dancers are required to start wearing a couple of stitches of clothing - there will still be violence, sexual harassment, public intoxication, prostitution, and the spread of sexually transmitted diseases.

Perhaps when someone is able to prove to a court that there in fact is no appreciable decline in negative secondary effects when nude dancers are required to wear G-strings, we will see more of these prohibitions on nude dancing overturned.

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