City Of Erie v. Pap’s A.M.

529 U.S. 277 (2000)

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Nature of the Case

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Facts

Erie passed an ordinance banning public nudity. PAP’s A.M. sued seeking an injunction. To comply with the ordinance, dancers must wear at a minimum, 'pasties' and a 'G-string.' The Court of Common Pleas struck down the ordinance as unconstitutional. On cross-appeals, the Commonwealth Court reversed the trial court's order. The Pennsylvania Supreme Court granted review and reversed, concluding that the public nudity provisions of the ordinance violated respondent's rights to freedom of expression as protected by the First and Fourteenth Amendments. The Pennsylvania court said that the act of being nude, in and of itself, is not entitled to First Amendment protection, because it conveys no message. Nude dancing, however, is expressive conduct that is entitled to some quantum of protection under the First Amendment. The court determined the ordinance was content-based and subject to strict scrutiny. The ordinance failed the narrow tailoring requirement of strict scrutiny because the court found that imposing criminal and civil sanctions on those who commit sex crimes would be a far narrower means of combating secondary effects than the requirement that dancers wear pasties and G-strings. The court severed §§ 1(c) and 2 from the ordinance and reversed the order of the Commonwealth Court. The City of Erie petitioned for a writ of certiorari, which was granted.