John Weston, the attorney who argued Erie v. PAPs A.M. before the Supreme Court says the Court's ruling upholding the controversial Erie anti-public nudity ordinance against live adult clubs leaves a crucial opening for further challenges to such laws. Weston told AVN On The Net that both the majority opinion by Justice Sandra Day O'Connor and a concurring opinion by Justice David Souter still allow challenges to such laws that rely on "secondary effects" to justify themselves.
"Cities and counties and states may say we need all adult businesses to do this or that because secondary effects are caused by these businesses," Weston said of the Erie case, "but we will now be able to go into any court and challenge this kind of ordinance or any other kind of ordinances and challenge the assumptions, really force them to defend these nonsense assumptions in ways we haven't been able to."
O'Connor had relied in large part on the secondary effects question in upholding EriE's requirement that exotic dancers wear at least G-strings and pasties while performing. She argued that erotic expression wasn't hindered because of the requirement but she also said Erie's real aim was "the negative secondary effects associated with adult entertainment establishments."
That was where Souter stepped off the bus, so to say. He wrote that, while he agreed with O'Connor's overall analysis of the Erie law, the city didn't really show the law aimed at "real harms" and should have had a chance to show just that.
Weston said he was disappointed that the Court didn't take a chance to make what he called an historic opportunity to solidify, clarify, and even expand on the First Amendment's implications. But he said both O'Connor's and Souter's comments on secondary effects "made very clear, in a way that I think is expanded over previous approaches and which was really not previously present," that adult businesses will be able to challenge such ordinances as Erie's.
"We will be able to challenge the cities'; and counties' laws like this," he said, "on the basis of the very factual and policy assumptions on which these laws (seek) to be justified."
But Weston also said that both Erie and the former Kandyland adult club, which challenged the Erie law, had erred, in different ways.
"What Souter said on it was, he would not sustain Erie because of their evidentiary failure to justify it," he continued. "In O'Connor's opinion, she noted that Kandyland had not challenged the secondary effects assertions and assumptions which Erie offered to sustain the ordinance. Under prior approaches, it really wasn't available. Souter and O'Connor have given the opening now. It's critical that O'Connor said those issues hadn't been challenged - with a clear implication that they could be. Absolutely critical."
The Erie case now reverts to the Pennsylvania Supreme Court "for a variety of further proceedings," Weston said, involving matters under Pennsylvania's state constitution and "other issues" at the beginning of the case which weren't considered by either Pennsylvania's high court or the U.S. Supreme Court.
The other issues, he said, include whether the Erie law was unconstitutional under the state constitution, "which has been held to give greater protection than the First Amendment." Also, the Pennsylvania high court will have to review whether the Erie law was "impermissible under the state's statutory scheme.
"In California, for example, there are strong arguments that, under our state statutory scheme, cities and counties wouldn't be allowed to pass this kind of legislation," Weston said.
Whether or not the entire Erie case could be re-argued, Weston said, is otherwise unclear for now. "But we can do it in any and every other case that might deal with these issues," he said, returning to the Souter-O'Connor secondary effects opening. "We can go back and say, "Municipality, you passed an anti-nudity ordinance, or anti-adult entertainment ordinance, and you justify it on the basis of this study or observation. We're going to force you to defend that in court, and we're going to come in with our own evaluation, our own studies, and rip your evidence apart." This now entitles us to fair adjudication as to whether the legislation can be justified in a number of ways by the evidence relied on by the adopting legislature."
Kandyland was sold during the course of the case, and the new owner moved to another location and re-opened as the Kandy Dinner Theater.
