One of this century's first defeats for free expression occurred on March 29, 2000, when the U.S. Supreme Court rejected arguments by attorneys for Pap's A.M., the corporation that had formerly run a nude dance club in Erie, Pa. by the name of "Kandyland," that an ordinance passed by the Erie City Council should be voided as unconstitutional.rnrn
Now, more than two years later, the Pennsylvania Supreme Court, to which the Pap's case was remanded, has issued its ruling, and it's a major win for free expression under the Pennsylvania Constitution. But while that decision will be precedential only in the Keystone state, attorney Paul Cambria, co-author of the amicus brief that the Pennsylvania high court used extensively in rendering its decision, is convinced that it is the cornerstone of an understanding of the U.S. Supreme Court's current position on nude dancing that starts with Barnes v. Glen Theatre, Inc., and as such, will have an effect on nudity legislation throughout the country.rnrn
"I feel that if you go in, especially now after you read Pap's 2 and after you read Glen and Pap's 1 all together, that you're on solid ground to say that you can challenge whether the municipality has evidence of their so-called secondary effects," explained Cambria. "And in addition, the Fifth Circuit case, Encore Videos-, same thing there: The court there found that there needed to be evidence of secondary effects, and so that case, our case, and the two plurality decisions in Glen and Pap's, if you analyze all those together, this Pap's decision analyzes everything, and says the conclusion you can draw from the Supreme Court's decisions is that the municipality has to demonstrate [its secondary effects claims] by evidence."rnrn
"Instead of having us all get screwed by a municipality that does no studies whatsoever and says, 'I rely on Bumfuck, Egypt's study, and therefore I'm now sustaining my statute,'" Cambria continued, "these cases give us the ability to go in and say, 'Wait a minute, you can't do that. You need to have evidence, especially where we challenge you that there is no evidence of secondary effects.' Now, that gives us a chance to litigate, and we're not fencing with the shadow of somebody else's survey."rnrn
AVN did an exhaustive analysis of the U.S. Supreme Court's ruling in that case (now referred to as Pap's 1 for citation purposes) in its June, 2000 issue, but neglected to mention that the case was to be remanded to Pennsylvania for reconsideration of its decision to strike down Erie's ordinance in light of the high court's ruling on the First Amendment issue.rnrn
On second look, the Pennsylvania Supreme Court agreed with the arguments of the amici, citing many of its own free-expression precedents.rnrn
"[W]e find that the ordinance violates the freedom of expression provision of Article 1, ?7 of the Pennsylvania Constitution," wrote Justice Castille for the majority, in a decision handed down on December 20, 2002. "Accordingly, we reinstate our prior order, which severed the unconstitutional provisions... from the ordinance, and we reverse the order of the Commonwealth Court."rnrn
The Commonwealth Court is Pennsylvania's equivalent of a state court of appeals, which in this case had ruled in favor of the municipality.rnrn
Article 1, ?7 of the Pennsylvania Constitution, titled "Freedom of Press and Speech; Libels," reads as follows: "The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever by made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or to any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury; and in all indictments for libels the jury shall have the right to determine the law and the facts, under the direction of the court, as in other cases."rnrn
The Pennsylvania majority saw this blanket expression protection as applying four-square to the Pap's 1 case, and cites (and occasionally quotes at length) other state cases to justify Pennsylvania's expression freedoms trumping the federal ones.rnrn
"Pap's argues that this Court should adopt the substantive analysis in our decision in Pap's 1 for purposes of Article 1, ?7 of the Pennsylvania Constitution, i.e. that we should conclude that the Erie ordinance is a content-based restriction that burdens the Pennsylvania right to freedom of expression, subject the ordinance to strict scrutiny, and conclude that it cannot stand. Citing this Court's decision in Commonwealth v. Edmunds... Pap's accurately notes that, on questions sounding under our state charter, this Court is not bound by decisions of the U.S. Supreme Court on similar federal provisions, but may find that Pennsylvania provides greater protection for individual rights... Pap's further notes that this Court already has recognized that our Declaration of Rights was the 'direct precursor of the freedom of speech and press'... and that this Court has long construed the freedom of expression provision in Article 1, ?7 as providing greater protection of expression than its federal counterpart." [Citations omitted]rnrn
But while the Pennsylvania Constitution is the bedrock for the instant decision, the state high court justices took a long look at the main federal precedent for laws banning nude dancing - Barnes v. Glen Theatre, Inc., which the Erie City Council specifically cited in its ordinance - and found that analysis wanting, especially in terms of Pennsylvania's greater free expression guarantees.rnrn
Justice Castille noted that in its original Pap's 1 decision, the majority of the Pennsylvania court determined that Erie's ordinance was clearly a content-based restriction on speech, since the preamble to the ordinance noted that it was "for the purpose of limiting a recent increase in nude live entertainment within the City," and moreover, as Justice John Paul Stevens noted in his federal dissent, also outlaws the "simulated nudity" of "costumes and coverings" that simulate genitalia, nipples or areolae - in Stevens' view, a clear declaration of the ordinance framers' true intentions.rnrn
Having thus concluded, the Pennsylvania court determined that Erie's claim that its ordinance helped control the negative secondary effects of the nude dancing was a sham, and decided to apply a "strict scrutiny" analysis of the ordinance, rather than the "less-stringent standard... announced in United States v. O'Brien" which the U.S. Supreme Court had applied in its own consideration of Pap's 1.rnrn
"They said," Cambria analyzed, "number one, 'We feel that the statute in question in Pap's is not a content-neutral statute, and for that reason, we're going to employ the strict-scrutiny test, and when we employ that test under our state constitution, the statute does not pass strict scrutiny, and therefore, they rendered unconstitutional the anti-nudity provisions.' Now, in addition, what was also extremely important, in the course of writing the decision, they referred to the Supreme Court's opinion in Barnes and Pap's and basically said, 'And even where you have the application of the O'Brien test, which requires intermediate scrutiny, even in those situations, at the very least, the government should have evidence that the secondary effects exist; that there should be evidence there.'"rnrn
"So the reason why this case is so phenomenally important is because, number one, they join the ranks of New York state, Oregon and some other states which have recognized that the parallel First Amendment provisions in the state constitutions grant even greater protections to the citizenry, but in addition, they recognize that these anti-nudity statutes are in fact not content-neutral, and for that reason should be analyzed by strict scrutiny. And even in situations where there's a finding that they are content-neutral, like for example Pap's, they read Pap's decision and the Glen decision together to require that there be evidence of the secondary effects demonstrated by the municipality."rnrn
Pennsylvania's opinion also touched on the question of whether the case was actually moot, and noted that since the case's previous hearing, "the parties have reversed the stances they assumed in the U.S. Supreme Court," with Erie arguing that the case shouldn't be reheard since Pap's/Kandyland is out of business, and Pap's arguing that there's an important issue of Pennsylvania constitutional law still undecided - in fact, an arcade booth doors-off ordinance that Cambria himself and others had previously litigated without any definitive resolution.rnrn
The Pennsylvania opinion essentially accepts many of Pap's' (and the U.S. Supreme Court's) arguments as to why the case should be heard and ruled upon, noting, "Furthermore, the potential for employing the mootness doctrine to manipulate jurisdiction is no less present in this Court than it was in the U.S. Supreme Court. In this regard, neither party has particularly clean hands, as each has argued in favor of mootness at a point where the existing judgment, if left alone, would be to its benefit."rnrn
States-rights proponents will also find it interesting that Pennsylvania bases some of its jurisdictional argument on the Western Pennsylvania Socialist Workers v. Connecticut General Life Ins. Co. case, which it quotes as follows:rnrn
"The United States Constitution established a government of limited and enumerated powers. Consequently, the national government possesses only those powers delegated to it... State constitutions, on the other hand, typically establish governments of general powers, which possess all powers not denied by the state constitution... Our state constitution functions this way and restrains these general powers by a Declaration of Rights."rnrn
But in the end, the Pennsylvania Supreme Court realized that the case came down to two basic questions:rnrn
"A narrow way of stating the questions now before us is whether there is something in Article 1, ?7 and our jurisprudence under that provision that both: (1) requires us to deem the obvious additional purpose of this ordinance to burden protected expression to be irrelevant to the question of its constitutionality; and (2) requires us to analyze the provision under O'Brien-type intermediate scrutiny, notwithstanding the U.S. Supreme Court's continuing inability to agree upon the precise operation of that test, and notwithstanding that we have rejected just such a test in the commercial speech arena in our unanimous opinion in Insurance Adjustment Bureau. We think there is not."rnrn
So saying, the Pennsylvania Supreme Court reaffirmed its earlier ruling that the ban on nude and "simulated nude" dancing in the Erie ordinance must be struck down.rnrn
"Since the legitimate governmental goals in this case may be achieved by less restrictive means, without burdening the right to expression guaranteed under Article 1, ?7, we hold, as we did in Pap's 1, that this ordinance is unconstitutional, albeit our holding now rests exclusively upon the Pennsylvania Constitution."rnrn
Cambria is adamant that this decision will have repercussions around the country.rnrn
"This is an extremely important decision," Cambria declared, "It's almost like the Rosetta stone in this argument, because what it does is explains and homogenizes the Supreme Court's decisions so you can now understand how they should be applied."rnrn
The full decision can be found here
