In a stunning loss for expressive speech, the United States Supreme Court, on March 29, declared that laws targeting nude dancing can be upheld even when the clear intent of the lawmakers is the suppression of the erotic message conveyed by the dance.
The case is the much-discussed City of Erie v. PAP's AM, which went all the way up to the Pennsylvania Supreme Court before dance club Kandyland, owned by PAP's, gained its temporary relief from Erie's onerous anti-nudity ordinance - before selling the business to another owner who transformed Kandyland into a comedy club, leading many court-watchers to assume that Erie's challenge of the ruling to the U.S. Supreme Court would be dismissed as moot.
However, Justice Sandra Day O'Connor, who wrote the opinion for the plurality (there being only four Justices who agreed on all points of the decision), refused to dismiss the case, based largely on the obscure notion that Nick Panos, the 72-year-old owner of PAP's (still a valid Pennsylvania corporation), might yet decide to open up another dance club, and therefore, still had an interest in the case's outcome.
"Several Members of this Court can attest... that the 'advanced age' of PAP's owner (72) does not make it 'absolutely clear' that a life of quiet retirement is his only reasonable expectation," wrote O'Connor, with the concurrence of Justices William Rehnquist, Anthony Kennedy, David Souter and Stephen Breyer, but disputed by Justices Antonin Scalia and Clarence Thomas in a separate opinion which nonetheless affirmed the reversal.
O'Connor also noted that "The city has an ongoing injury because it is barred from enforcing the public nudity provisions of its ordinance."
"The interesting thing is that cert was granted on the basis of the question of whether the Pennsylvania Supreme Court was bound by the Supremacy Clause to follow Barnes," noted attorney John Weston, who argued the case for PAP's before the U.S. Supreme Court last November, "and of course, the words 'Supremacy Clause' were never uttered in oral argument and as best I can determine, the words 'Supremacy Clause' never showed up in the opinion."
The Court's plurality laid its cards on the table at the beginning of Part III of the opinion, claiming that, "As we explained in Barnes [v. Glen Theatre, a seminal nude dancing case], however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment's protection," but conceded that "To determine what level of scrutiny applies to the ordinance at issue here, we must decide 'whether the State's regulation is related to the suppression of expression.'"
Incredibly, the Justices gave little weight to the evidence in the record that Erie's ordinance was directly aimed at expressive conduct, even though Justice John Paul Stevens, in his dissenting opinion (joined by Justice Ruth Bader Ginsburg), pointed to that very evidence. The others' rationale in ignoring that record was the fact that the Pennsylvania Supreme Court did not base its decision on that language, but rather on what it saw as a clear violation of the Pennsylvania Constitution's free speech freedoms.
"Although the Pennsylvania Supreme Court acknowledged that one goal of the ordinance was to combat the negative secondary effects associated with nude dancing establishments, the court concluded that the ordinance was nevertheless content based, relying on Justice White's position in dissent in Barnes for the proposition that a ban of this type necessarily has the purpose of suppressing the erotic message of the dance. Because the Pennsylvania court agreed with Justice White's approach, it concluded that the ordinance must have another, 'unmentioned' purpose, related to the suppression of expression."
Supreme Court Justices are loathe to accept arguments based on dissenting opinions from their own bench, even when such dissents are delivered in a case like Barnes, which had no clear Court majority on any crucial point.
"Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of the erotic message of nude dancing, we would do so now because the premise of such a view is flawed," the Court found. "The State's interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood."
It is on this point that the plurality of the Court has gone far beyond the "time, place and manner" restrictions permitted to local lawmakers by the Court's previous decision in Renton v. Playtime Theaters; instead, reaching back to Justice Souter's original opinion in Barnes, where Souter's reasoning in upholding the Indiana anti-nudity statute rested on the perceived problem of secondary effects.
"The Court relies on the so-called 'secondary effects' test to defend the ordinance," wrote Stevens in his dissent. "The present use of that rationale, however, finds no support whatsoever in our precedents. Never before have we approved the use of that doctrine to justify a total ban on protected First Amendment expression. On the contrary, we have been quite clear that the doctrine would not support that end.... Indeed, in both Renton and [Young v.] American Mini Theatres, the zoning ordinances were analyzed as mere 'time, place, and manner' regulations. Because time, place, and manner regulations must 'leave open ample alternative channels for communication of information,' a total ban would necessarily fail that test." [citations omitted]
In fact, in his concurring opinion here, Souter himself actually apologized for his argument in Barnes, at least to the extent that in Barnes, he had assumed that harmful secondary effects existed. In this opinion, Souter suggested that the proper course would be for the Court to remand the case back to the trial court to inquire whether the alleged secondary effects actually existed.
"The upshot of these cases [Young, Renton] is that intermediate scrutiny requires a regulating government to make some demonstration of an evidentiary basis for the harm it claims to flow from the expressive activity, and for the alleviation expected from the restriction imposed," Souter wrote. "That evidentiary basis may be borrowed from the records made by other governments if the experience elsewhere is germane to the measure under consideration and actually relied upon. I will assume, further, that the reliance may be shown by legislative invocation of a judicial opinion that accepted an evidentiary foundation as sufficient for a similar regulation. What is clear is that the evidence of reliance must be a matter of demonstrated fact, not speculative supposition. By these standards, the record before us today is deficient in its failure to reveal any evidence on which Erie may have relied, either for the seriousness of the threatened harm or for the efficacy of its chosen remedy. The plurality does the best it can with the materials to hand... but the pickings are slim."
Souter's comments were directed to the plurality's apparent willingness to invest the city councilors of Erie with expertise in sociology and statistics:
"In any event, Erie also relied on its own findings," the plurality opinion reads. "The preamble to the ordinance states that 'the Council of the City of Erie has, at various times over more than a century, expressed its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity.'... The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had first-hand knowledge of what took place at and around nude dancing establishments in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects."
This last statement appears presumably to defuse the excellent criticism contained in an amicus brief filed by the First Amendment Lawyers Association, which itself refers to a study conducted by Dr. Daniel Linz (University of California-Santa Barbara) of the "secondary effects studies" most relied upon by cities throughout the country to justify the enactment of zoning and other restrictions on adult businesses. Linz found that of the 10 most-cited studies, all are fatally flawed, and the one that comes closest to being scientifically valid doesn't show any harm stemming from the presence of adult businesses in the community.
But the plurality sought to distance its analysis of what the Erie city fathers might have known from the validity (or invalidity) of the pre-existing studies.
"And the study relied on by amicus curiae," the plurality opinion continues, "does not cast any legitimate doubt on the Erie city council's judgment about Erie."
In other words, never mind science; let's accept the opinions (and prejudices) of local burghers, none of whom has ever demonstrated the ability to conduct a secondary-effects study, much less evaluate one.
The secondary effects concept is a point which Weston had discussed at length during his argument in the case, and upon which he was questioned by Souter.
"Justice Stevens observed what we had argued vociferously, that it was wrong for Justice Souter in Barnes to utilize secondary effects to uphold the Barnes statute because secondary effects had only been utilized, and only would appropriately be utilized, to uphold a time, place and manner regulation," Weston said.
It is, however, in this very argument that Weston sees some good coming out of the PAP's decision: Here, the Court has, for the first time, opened up the claim of adverse secondary effects to the trial court's scrutiny, where previously, judges had denied such a challenge, assuming that legislators had actually studied secondary effects reports, or made their own, and it was not for the courts to challenge the legislators' findings.
"That's a really big deal," Weston explained, "because that gives us the green light to be able to have significant and far-reaching evidentiary evaluations. The Court has said that the kind of adult activity that existed in the mid-'70s caused certain problems, but the only thing that was in those studies was concentration; and where you had concentration of a lot of certain kinds of adult businesses, problems developed. Now, almost every city and county has an adult zoning ordinance which causes dispersal, and which, for the most part, puts adult businesses out in industrial or other areas that are separated from residences, schools, churches, etc. So if the court's theory is correct, then the adult zoning ordinances have ameliorated the very conditions which justified their adoption; therefore, whatever the facts are today, if properly measured, they will not show whatever the [previous] studies theoretically showed."
In other words, if the early studies were correct as to the existence of secondary effects - and that, of course, is a big "if" - and the dispersal of adult businesses, as required by the zoning ordinances, had worked, studies done now would show no significant secondary effects still existing. But if contemporary studies continue to show secondary effects (which Weston doubts they would), that finding would cast doubt on the validity of the concept of dispersal through zoning.
But, Weston also noted, those zoning ordinances did not - indeed, could not - deal with the content of the sexually-oriented expression, either in terms of which videos and magazines a store could stock, or how much skin a dancer could show.
"My point is, if there were a proper study done today on a well-managed adult business, there would be no secondary effects seen that would justify any kind of special treatment for these businesses," Weston argued. "In today's environment, a well-managed business - if one measured the impact of such businesses on the community - I'm absolutely satisfied that the studies would reveal that there were no secondary effects that were any different from any other business to which the public was invited, and in many ways, probably less, because there's more management and control. Given what Justice O'Connor's opinion has just given us, and the green light that it's given us, and the sanction and instructions it has given the lower courts, in essence to let us have an evidentiary hearing on the validity of the underlying assumption supporting the legislation, I think we will be able to contest very powerfully all of these ordinances, whether they be anti-nudity ordinances, licensing ordinances, hours of operation legislation, whatever kinds of legislation is directed toward adult expressive entertainment. We can now challenge the assertions [made in studies] and the use of those assertions to justify this kind of legislation, and that's a really big deal, because that gives us the green light to be able to have significant and far-reaching evidentiary evaluations. That is an enormously powerful tool which we just have not previously had."
But those familiar with the history of sexual speech suppression are very troubled by the Court's attempt to minimize the expressive qualities of nude dancing.
"[E]ven if Erie's public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and g-strings. Any effect on the overall expression is de minimis." - So state the official art critics who sit on the nation's highest bench.
"It's a total ban," Weston noted. "In other words, the issue was time, place and manner [restrictions] versus a total ban on expression, and that's what this ordinance is. This ordinance said that you can't have total nude dance anywhere in Erie. It's not that you could only do it in an industrial area; you couldn't do it anywhere. And that is a total ban, and that I don't think can possibly be justified on the basis of secondary effects; it would have to be justified under the much more rigid test of strict scrutiny. But the court finessed that by saying, 'This is not a total ban. We're only in a tiny way restricting a form of the message; we're not diminishing expression.' And I think Justice Stevens was entirely correct on that. So to the extent that the Court used the secondary effects to justify a ban, that is certainly an expansion."
Weston also found another positive aspect of the decision in Justice Souter's insistence that whatever evidence of secondary effects of adult businesses is used, that evidence must actually be relevant to the ban proposed.
"The plurality quotes the ordinance's preamble asserting that over the course of more than a century the city council had expressed 'findings' of detrimental secondary effects flowing from lewd and immoral profit-making activity in public places," Souter wrote. "But however accurate the recital may be and however honestly the councilors may have held those conclusions to be true over the years, the recitation does not get beyond conclusions on a subject usually fraught with some emotionalism... [I]t is one thing to accord administrative leeway as to predictive judgments in applying 'elusive concepts' to circumstances where the record is inconclusive and 'evidence ... is difficult to compile'... and quite another to dispense with evidence of current fact as a predicate for banning a subcategory of expression. As to current fact, the city council's closest approach to an evidentiary record on secondary effects and their causes was the statement of one councilor, during the debate over the ordinance, who spoke of increases in sex crimes in a way that might be construed as a reference to secondary effects. But that reference came at the end of a litany of concerns ('free condoms in schools, drive-by shootings, abortions, suicide machines' and declining student achievement test scores) that do not seem to be secondary effects of nude dancing....
"The record suggests that Erie simply did not try to create a record of the sort we have held necessary in other cases, and the suggestion is confirmed by the course of this litigation. The evidentiary question was never decided (or, apparently, argued) below, nor was the issue fairly joined before this Court. While respondent did claim that the evidence before the city council was insufficient to support the ordinance... Erie's reply urged us not to consider the question, apparently assuming that Barnes authorized us to disregard it. The question has not been addressed, and in that respect this case has come unmoored from the general standards of our First Amendment jurisprudence... [M]y partial dissent rests on a demand for an evidentiary basis that I failed to make when I concurred in Barnes, supra. I should have demanded the evidence then, too."
"The Supreme Court clearly meant to give us these opportunities," Weston said, referring to evidentiary hearings on secondary effects, "because otherwise, it would have said, 'We've many times said [there are] secondary effects; Erie is entitled to rely on that conclusion; end of issue.' But that's not what the court said. That's a really, really critical aspect of the case, and the other aspect of it, which will also be very, very helpful in all expressive kinds of cases, both adult and non-adult, is that it appears that the court articulated a tougher test that cities and counties were going to have to meet in showing that their legislation was germane to the perceived problem, and really, what they kind of concluded was that there would be a requirement that there be a material fit between the legislation and the perceived problem, and that, in technical court language, is a tougher test for cities and counties to meet, rather than the so-called narrow tailoring test which had previously been used.
"Bottom line: Are we disappointed? Of course. We knew going in that this was going to be a terribly difficult case, and the court had not taken the case to do us any favors. Do we agree with the Court's opinion? Of course not. We're dismayed that the Court once again revealed that it's fundamentally uncomfortable with sexually-oriented expression, and particularly with highly erotic sexually-oriented expression, and particularly again with the potential of nudity, in contrast to the vast majority of American citizens who continue to clamor for as much of such entertainment and expression as possible. We're obviously very disappointed that the court, once we got them to abandon the focus on morality as a justification for suppression of speech, seemed to place its reliance on the secondary effects doctrine, particularly because the only secondary effects studies that the court has are now more than 25 years old and have very little to do with the factual and experiential realities of what well-managed adult entertainment businesses are like today.
"What we need to focus on now," Weston summarized, "is that the problem, if there is a problem, with adult entertainment businesses is, as always, bad management. Badly run adult entertainment businesses, like badly run restaurants, bowling alleys, rock arenas and baseball stadiums, are going to cause trouble for a community. A well-run adult entertainment business will no more cause any difficulty or so-called secondary effects than its well-run non-adult counterpart, and that really should be what the focus is of this kind of legislation. And I think, in time, as the court inevitably will become more comfortable with the notion of sexually-oriented themes and sexually-oriented entertainment on a mass consumption basis and will more nearly mirror society at large, I think we will reach the situation where the court and others become more tolerant of the diversity in our society."
At one point in the plurality opinion, the writing Justices denigrate Justice Souter's partially-dissenting opinion, interpreting Souter as saying that "we cannot accept Erie's findings because the subject of nude dancing is 'fraught with some emotionalism.'" Perhaps the high court is too self-insulated to know that the loss of First Amendment freedoms still has an emotional impact on at least some members of the American public.
