As you likely are aware, the Supreme Court considers which cases it will decide by looking at the thousands of petitions that come knocking on the door of the Supreme Court Building every year. It requires the votes of four of the nine justices for the Court to hear such a case. And it is commonly understood that cases are taken not because of how wrong the lower court's opinion might have been, but rather how important the issues involved are for the nation's jurisprudence and matters of national policy.
The Supreme Court doesn't take so many cases, roughly only half as many as ten years ago. Largely as a consequence of the relative paucity of Supreme Court decisions of late, the Court has voluntarily delved into issues of adult entertainment only three times this decade, FW/PBS v. City of Dallas (which has caused the demise of scores of licensing laws from coast to coast), Barnes v. Glen Theatre (nude dancing) and United States v. Alexander (obscenity forfeitures). A fourth case, A.C.L.U. v. Reno (the Communications Decency Act) was thrust upon the Supreme Court by Congress, which included a special statutory provision requiring expected review directly to the Supreme Court of any lower court decision striking down the CDA which, of course, is what happened.
There now is another case, which should be decided early next year. You probably know that the Supreme Court has granted review of a Pennsylvania Supreme Court case called PAP'S A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (1998), cert. granted sub nom. City of Erie v. PAP'S A.M., tdba "Kandyland", No. 98-1611, ___ U.S. ___, 119 S.Ct. 1753, ___ L.Ed.2d ___ (May 17, 1999). Regardless of its outcome (if you are looking for a prediction, you can stop reading here), this case could have a profound effect on the entire adult entertainment industry, as generally is the case when the High Court becomes embroiled in a controversy pitting adult entertainment against the First Amendment. Here's what happened:
The City of Erie, Pennsylvania enacted an ordinance prohibiting anyone over nine years old from appearing in a public place-any public place-wearing less than "pasties and a g-string," except for breast-feeding mothers. The City Council's explanation for its action was that the ordinance was needed, "... for the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects."
Notably, although the ordinance does exempt youngsters and breast-feeding mothers, other logical exemptions are absent: Rest rooms, locker rooms, hospitals-places where you figure nudity, at least as defined by the ordinance, would be considered socially acceptable. Rather, the City Council meant what it said, that it was out to close down nude entertainment in town.
One such place, a business in Erie called Kandyland, challenged the ordinance in a Pennsylvania state court. The lawsuit wound its way up to the Pennsylvania Supreme Court, which rendered a rather remarkable decision.
First off, the Pennsylvania Supreme Court was operating with a skeleton crew. Usually equipped with seven Justices, the court was down to five, there being one vacancy and one justice that did not participate. Had there been seven, the court might have arrived at the result a different way, or even a different result. We'll never know.
Of the five justices that did hear the case, two of them took the position that this ordinance was just like the one which the Supreme Court upheld in Barnes v. Glen Theatre> seven years ago, but turned to the Pennsylvania state Constitution and found that the anti-nudity ordinance, when applied to dancing, offended that state's free-speech guarantee. This would have been a perfect result, since the Pennsylvania Supreme Court has the last word on what its own constitution means. That would have been that.
As it happened, however, three of the justices-in a painstaking analysis which will be explained below-found that the ordinance violated the First Amendment and, having so found, declined to address the issue concerning the Pennsylvania Constitution. So, the case was decided on the First Amendment, where the United States Supreme Court has the last word-if it wants, that is. And it wanted to, so apparently it will, sometime in the 1999-2000 term.
But, in another interesting twist, after the Supreme Court had agreed to hear this case, PAP'S A.M. went out of the nude dancing business, in favor of comedy. This was a significant development, since Article III of the Constitution empowers the Supreme Court only to decide an issue if there is a "case or controversy" requiring such a decision. PAP'S A.M. no longer gives a hoot about Erie's nude-dancing rules, and certainly cannot justify paying an attorney to litigate in the Supreme Court their validity-or not.
Accordingly, the attorney representing PAP'S A.M. filed a motion to dismiss the case as moot, something the attorney would be required to do by both lawyers' ethics and the rules which courts have established. Once that happened, everybody forgot about the case and assumed that the nude dancing issue would await another day.
Presumably having earmarked their files for the storage warehouse and forgotten about the case for the most part, the attorneys representing the various parties and amicus curiae interests in the PAP'S A.M. case were all certainly alarmed when the morning mail brought a letter from the Supreme Court Building enclosing an order stating:
"The motion of respondents to dismiss the writ of certiorari as moot is denied."
Huh??? Certainly the amicus curiae do-gooders likely were delighted with the fact that their cause apparently had been resurrected. For the ownership, management and legal representatives of PAP'S A.M., this must have been more than a little bewildering. They now find themselves being unceremoniously dragged down to Washington, D.C. for the purpose of challenging an ordinance in which they have no interest, other than perhaps philosophical, academic or political.
On the other hand, there are armies of people who have a concrete interest in what the Supreme Court has to say about nude dancing than does PAP'S A.M.-probably around a billion dollars worth of nude dancing establishments in cities from coast to coast to coast and the legion of killjoys who would like to do away with them.
Recall that the opinion in Barnes v. Glen Theatre was a long way short of a consensus. Four justices voted that applying Indiana's generally applicable anti-nudity law to dancing ran afoul of the First Amendment. That corps of dissenters was led by Justice Byron White, joined by Justices Marshall, Stevens and Blackmun. Justice Stevens is still around. Justices White, Marshall and Blackmun are gone, replaced by Justices Breyer, Ginsburg and Thomas. None of the three new justices has telegraphed a ruling on the Barnes issue.
The majority opinion of the Pennsylvania Supreme Court found that what it described as "this hodgepodge of opinions" from Barnes provided no guidance. The court found that, despite the fact that the ordinance before it was much like that confronted by the Supreme Court in Barnes, "... although we may find that the opinions expressed by the Justices prove instructive, no clear precedent arises out of Barnes on the issue of whether the Ordinance in the matter sub judice passes muster under the First Amendment."
Tuning to the question of "secondary effects," the court disagreed with the City's position:
"We acknowledge that one of the purposes of the Ordinance is to combat negative secondary effects. That, however, is not its only goal. Inextricably bound up with this stated purpose is an unmentioned purpose that directly impacts on the freedom of expression: that purpose is to impact negatively on the erotic message of the dance. We find that Justice White expressed this position most eloquently in his dissenting opinion in Barnes when he declared that "'it cannot be [said] that the statutory prohibition is unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition. It 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, apparently on the assumption that creating such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication.'...
"We believe that Justice White's analysis is directly applicable to the situation before us now, and that the stated purpose for promulgating the Ordinance is inextricably linked with the content-based motivation to suppress the expressive nature of nude dancing."
Having so found, the court undertook what is called a "strict scrutiny" analysis of the ordinance that, as suggested in its name, dooms most speech regulations to which it applies. This one proved no exception. While it isn't the place of this column to predict the outcome of the game, it certainly is worth talking about some of the match-ups, especially because the result could spill over into other media-like books, magazines, videos and the Internet.
In Barnes, which stands to be supplanted by the Court's upcoming decision in the PAP'S A.M. case, Justice Scalia opined that no First Amendment analysis whatsoever was required because the Indiana anti-nudity law was one of general application, as opposed to one which regulated only expression. He was the only justice to express that philosophy. In ensuing litigation in lower courts, however, his vote has been used as a basis to attack ordinances that regulate nudity only in the context of adult entertainment establishments.
The Barnes case also saw Justice Souter articulate an opinion with which no other member of the court agreed-that it was acceptable to apply the anti-nudity laws only under the circumstances based upon secondary effects of nude dancing. Like Justice Scalia, Justice Souter may have a revised view of the situation given the substantial number of lower-court decisions that have come down the pike since Barnes.
Finally, of course, we have not heard from any of the three new members of the Court-Justices Thomas, Ginsburg and Breyer-on anything close enough to this issue which would provide a basis for a prediction. There presumably remains an issue of whether it is a live controversy. In spite of the fact that the court refused to summarily dismiss the case for want of an Article III "case or controversy," that issue certainly will be on the table.
And getting past the nose-counting exercise, the potential that the Court's upcoming decision in the PAP'S A.M. case will slop over to other media of sexually-oriented expression is not at all insubstantial. For example, because Justice Souter's opinion in Barnes involved secondary effects of speech, that issue certainly is on the table. And any time the Court talks about secondary effects, and thereby the concept of so-called content neutrality, it stands to impact regulations applicable to the entire spectrum of regulations applicable to sexually oriented businesses, including zoning regulations, licensing provisions and operational characteristics such as lighting, visibility (e.g., doors-off), "six-foot rules," and so on. It also stands to impact any circumstance where conduct and expression are mixed together, such as those cases previously before the Supreme Court; e.g., flag burning and draft-card burning. On the other hand, the decision could be very tight-deciding the nude-dancing issue solely on the facts of the case in a way that might not impact any other area of expression.
Also, given Barnes, there remains the specter of the Court still failing to reach a consensus. In the obscenity area, for example, it took over 15 years after the Roth decision (holding that obscene speech was not protected by the First Amendment) for any five members of the Court to reach a consensus on a definition of "obscene." If Justice Scalia and/or Justice Souter do not alter their positions, there obviously is the specter of another standoff. And the question of whether there is a live "case or controversy" adds to the possibility of a splintered Court.
If you have involvement of any kind in the adult entertainment industry (as is the case with almost everyone that reads this publication), you'll want a ringside seat for this one. The range of possible results goes from dismissal for lack of a live controversy (and, therefore, no decision at all on the merits), to upholding the regulation, to upholding the regulation subject to a showing of undesirable secondary effects, to striking down the regulation when applied to nude dancing- and everything in between. The decision could narrowly affect nude dancing, or broadly affect all kinds of speech-or, again, anything in between. For that reason, this article is being printed in AVN, AVN Online and Exotic Dancer Bulletin because of the importance of the case to readers of all three publications.
(Clyde DeWitt is a partner in the Los Angeles, California law firm of Weston, Garrou & DeWitt. He can be reached through AVN's offices, at his office at 12121 Wilshire Boulevard, Suite 900 Los Angeles, CA 90025 or over the Internet at [email protected]. Readers are considered a valuable source of court decisions, legal gossip and information from around the country, all of which is received with interest. Books, pro and con, are encouraged to be submitted for review, but they will not be returned. This column does not constitute legal advice but, rather, serves to inform readers of legal news, developments in cases and editorial comment about legal developments and trends. Readers who believe anything reported in this column might impact them should contact their personal attorneys.)
