Mike Ross reports: "November 10, 1999 started like any other 'red eye travel day' as George Mull and I spilled off a late night flight from Sacramento to Baltimore's BWI Airport. As we both rubbed our eyes in the sunlight, we knew that we not only had 'neck crinks,' but had made it to our own personal version of Mecca 99 - Washington DC where the US Supreme Court would soon hear the Paps AM v Erie case. The long awaited 'industry trial' was being defended by Joihn Weston, one of the industry's leading free speech advocates.
"My energy surged as George and I checked into the hotel, changed and caught the first train into DC. As we settled down for the ride, we caught our breath and surveyed our surroundings.
"Within seconds of sitting, we overheard the words 'Supreme Court' in a conversation between four gentlemen sitting in front of us. But it wasn't until we heard the word 'Paps', that our ears and interest actually perked up. Leaning closer, we eavesdropped on their conversation and surprised them when we politely 'jumped into their conversation with both feet.'
"What brought me into their conversation was the comment, 'The PAP's case will affect the adult cabaret industry's future no matter which way the Court decides.'
"When asked about their interest in the case, a law professor told us, 'We attend Court hearings whenever a First Amendment case is heard.'
"As the 40-minute ride came to an end at Union Station, we parted company and caught a cab to the Court building. We arrived at the Marshal's Office, signed in and picked up our reservations minutes after the first case started. Upon being escorted to our seats, we watched history in the making, live and in color for two solid hours.
"The PAPS case started at 11 am sharp with Judge Rhenquist asking the first question of Erie's city attorney. [Weston's start was 11:30 am]. Before Erie's attorney could finish his opening statement, he was hit with a barrage of political questions that revolved around the 'operational status of the business'. Visibly shaken by the Court's quick questions, Erie's attorney stumbled several times and appeared to be dancing worse than an entertainer wearing her first set of stilettos. In fact, one time he was so shaken that he responded to a question by Justice O'Connor by calling her 'Judge Connor'. [Causing a stir and a rapid response by the Justice.]
"After the stumble, things for Pennsylvania's 'anti nudity movement leader' got worse. As a progfessional lobbyist, I believe he presented a porrly designed and executed case. As a result, out of the 'goodness of his conservative anti-industry heart,' Justice Scalia handed the arguments to the barrister on a silver platter, and he still couldn't viably convert the arguments into points.
"The questions that started the fall ranged from 'isn't this a moot case because the business is non-operational' to 'didn't the city practice selective enforcment by allowing plays with nudity like Equuis to continue operating while going after nude dance facilities?'
"After a grueling session, he rested. Mr. Weston stepped up to the plate to present the industry's case. After taking a few test swings, Weston answered many of the same questions but was asked additional questions relating to 'secondary effects' and 'possible Barnes errors'. One-by-one, John cooly and calmly answered each question, showing style, poise and charm as he bantered with the justices on a one-to-one level. As the case came to a close, it appeared that the court was again divided [like Barnes].
"As an ex-intercollegiate debater, I scored the 'cases, presentations and information' for our side. [I didn't read the briefs & considered the debaye similar in nature to Kennedy v/ Nixon in 1960.]
"As a political scientist, I know 'scoring the debate' isn't the only factor that goes into the final rulings. Unfortunately, politics does, and I want to warn you that no matter what the Court's decision is, local government will start a new round of 'regulatory attempts', with another case going before the Court in six or seven years to help define what the Court says.
"The Court's opinion is due in March or April of next year."
In a follow-up chat Mike Ross commented, "The important thing that everyone needs to look at, is, no matter what the decision is, there's going to be lots of legislation and local ordinances inrtroduced to try to define what the Supreme Court was talking about. They looked at this; they were interested. John Weston did a helluva job. I think that one of the things that really made it for us is our guy looked good. Their guy looked like shit."
[AVN's Mark Kernes provides some background on the PAPS case.]
Kernes: "The case involves a club called Kandyland which was a topless dance club in Erie, PA. The city fathers of Erie in an attempt to cut down on the nudity in the area clubs, passed this ordinance that would, essentially outlaw nudity in topless clubs. Kandyland which is owned by PAPS AM didn't like that and sued the city of Erie. It went to the Pennsylvania Supreme Court. Several arguments were made, one of which there was a First Amendment right under Barnes v. Glen Theatre which was a Supreme Court Case in 1991, that it was okay to have nude dancing, that it was sort of an expressive behavior. But the Pennsylvania Supreme Court didn't deal with that. They dealt with the Pennsylvania Constitution which has wider free speech liberties than the federal Constitution does. Since it was not decided on federal grounds, the city of Erie decided to appeal the Pennsylvania Supreme Court's decision to the US Supreme Court. There may have been lower courts in between that, but the point was, it was at the US Supreme Court last Wednesday.
"The Supreme Court now will have to revisit its decision in Barnes v. Glen Theatre, and there were a number of dissenting opinions. At least some of the aruments in the PAPS case were based on those dissenting opinions. So now the Supreme Court has to look at those and see if they're valid. I know that at least one of the breifs that was filed in the case has to do with the concept of adverse secondary effects which Erie used as part of its justification to pass the ordinance. What was filed was a report from a Dr. Linz who has examined all the adverse secondary effect reports which are used in these kinds of cases and has found them all to be invalid, that there is nothing to them whatever. They were poorly documented, they were poorly done and, therefore, nobody should be using them as basis for law. So the Supreme Court will be considering that as well.
"Perhaps the overriding problem is that Kandyland is no longer a topless club. It's now a comedy club in Erie. There's something in the Constitution in Article Three that says when a case is no longer at issue, the Supreme Court can't deal with it. There's no longer an issue there. There's no topless dancing at Kandyland in Erie. The Supreme Court, technically, should not be listening to this case at all, but they decided to take it anyway, having denied a motion by Kandyland's attorney to make the case moot. But they decided to take the case anyway. The moot argument was made at the hearing on Wednesday, and we have yet to find out how the Supreme Court's going to rule on any of that."
