By John H. Weston, Attorney at Law \n WESTON, GARROU & DeWITT \n (printed in the Adult Entertainment Advocate - 11/01/99 edition) \n http://www.xxxadvocate.com
As everyone must know by now, the U. S. Supreme Court -- which now accepts profoundly fewer cases than it once did -- has granted review of the Pennsylvania Supreme Court's decision in 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).
This case stands to have a profound effect on the entire adult entertainment industry, as is generally the case when the High Court becomes embroiled in a controversy pitting erotica against the First Amendment.
The City of Erie, Pennsylvania enacted an ordinance prohibiting anyone over 9 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, the City Council meant what it said, that it was out to close down every nude entertainment establishment in town. Kandyland, one such place, 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.
Of the five justices of the Pennsylvania Supreme Court that heard 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 state constitution means.
However, three of the justices -- in a painstaking analysis -- 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. It will hear oral arguments on November 10, 1999.
Unbeknownst to its lawyer, PAP'S A.M. went out of the nude dancing business, in favor of comedy. That 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. Accordingly, the attorney representing PAPS 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, everyone assumed that the Court would dismiss the case and the nude dancing issue would await another day. But to the surprise of all involved, the Supreme Court denied the motion and will hear the case. And, significantly, the Court has not ruled on the petition for certiorari filed last December in a similar Alabama case, so it appears that the Court expects to be drilling straight into the First Amendment when it hears PAP'S in November.
The opinion in Barnes v. Glen Theatre -- the last time the Court talked about nude dancing -- was far 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 lead by Justice White, joined by Justices Marshall, Stevens and Blackmun. Justice Stevens is on the Court, but Justices White and Blackmun are gone, replaced by Justices Ginsburg and Breyer. Justice Marshall, of course was replaced by Justice Thomas. None of the three new justices has telegraphed a ruling on the Barnes issue.
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 (i.e., doors-off), "six-foot rules", and so on. A wide ranging opinion could have a profound impact on erotica in cyberspace and on the Internet. 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, or even anything beyond the specific language of Erie's ordinance.
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 some Justices 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. 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 g-strings and pasties requirement to upholding it 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.
Unfortunately, even though there is no longer a Kandyland in Erie (or anywhere else), and thus no paying client, the case is still going to be argued before the United States Supreme Court on November 10th. In truth, the case is too big and important for one small club to fund, even if it still existed -- which it does not. Typically, where a case like this has the potential to affect the entire industry, everyone chips in. We agreed to become involved, because the risks to the First Amendment and to the industry were so great, and because everyone assured us that they would help. Well, now is the time. Please send your contributions made payable to "Weston, Garrou & DeWitt, Trust Account," 12121 Wilshire Boulevard, Suite 900, Los Angeles, California 90025. We have written and filed our brief and we are preparing for and will present the oral argument in November -- that's our part. Please do yours, and help support our efforts for the First Amendment and the adult entertainment industry. Please help us help the industry.
