Pap's AM v. City of Erie

• Decision Date: 19 December 2002
• Citation: 571 Pa. 375,812 A.2d 591
• Parties: PAP'S A.M. t/d/b/a Kandyland, Appellant, v. The CITY OF ERIE, Joyce A. Savocchio, Chris E. Maras, Mario S. Bagnoni, Robert C. Brabender, Denise Robison, and James N. Thompson, in their Official Capacities, Appellees.
• Court: Pennsylvania Supreme Court

812 A.2d 591

571 Pa. 375

PAP'S A.M. t/d/b/a Kandyland, Appellant, v. The CITY OF ERIE, Joyce A. Savocchio, Chris E. Maras, Mario S. Bagnoni, Robert C. Brabender, Denise Robison, and James N. Thompson, in their Official Capacities, Appellees.

Supreme Court of Pennsylvania.

Submitted August 30, 2000.

Decided December 19, 2002.

Philip B. Friedman, Erie, for PAP's A.M. t/d/b/a/ Kandyland.

Carl Max Janavitz, Pittsburgh, for North Hills News, Inc.

Michael Murray, pro hac vice, Stephen D. Shafron, pro hac vice, for Golden Triangle & Monroeville.

Paul J. Cambria, Jr., pro hac vice, for Fairview & B.L.V.D.

Gregory Alan Karle, Gerald Joseph Villella, Erie, for City of Erie, et al.

Michael McAuliffe Miller, Harrisburg, Kerry Alan Fraas, George M. Janocsko, Pittsburgh, for Allegheny County.

Before ZAPPALA, C.J., and CAPPY, CASTILLE, NIGRO, SAYLOR and EAKING, JJ. Justice CASTILLE.

This matter is before this Court upon remand following the United States Supreme Court's reversal of our decision in Pap's A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (1998) (Pap's I). The issue before us in Pap's I, and again before us now, involves the constitutionality of a public indecency ordinance enacted by the City Council of Erie, which makes it a summary offense to appear in public in a "state of nudity." For the reasons set forth below, we find that the ordinance violates the freedom of expression provision of Article I, § 7 of the Pennsylvania Constitution. Accordingly, we reinstate our prior order, which severed the unconstitutional provisions (§§ 1(c) and 2) from the ordinance, and we reverse the order of the Commonwealth Court.

The ordinance provides, in relevant part, as follows:

1. A person who knowingly or intentionally, in a public place:

a. engages in sexual intercourse

b. engages in deviate sexual intercourse as defined by the Pennsylvania Crimes Code

c. appears in a state of nudity, or

d. fondles the genitals of himself, herself or another person commits Public Indecency, a Summary Offense.

2. "Nudity" means the showing of the human male or female genital [sic], pubic hair or buttocks with less than a fully opaque covering of any part of the nipple; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola.

3. "Public Place" includes all outdoor places owned by or open to the general public, and all buildings and enclosed places owned by or open to the general public, including such places of entertainment, taverns, restaurants, clubs, theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to patrons invited to attend, whether or not an admission charge is levied.

4. The prohibition set forth in subsection 1(c) shall not apply to:

a. Any child under ten (10) years of age; or

b. Any individual exposing a breast in the process of breastfeeding an infant under two (2) years of age.

The Preamble to the ordinance suggests that it was targeted specifically at nude live entertainment and not simply at nudity per se:

WHEREAS, Council specifically wishes to adopt the concept of Public Indecency prohibited by the laws of the State of Indiana, which was approved by the U.S. Supreme Court in Barnes v. Glen Theatre Inc., et al, 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), for the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact 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. (Emphasis supplied.)

Appellant Pap's operated an establishment known as "Kandyland," which featured totally nude erotic dancing performed by women. To comply with the nudity ban in the ordinance, Pap's presumably would have had to require its dancers, at a minimum, to cover themselves with what are commonly known as "pasties" and a "G-string"—albeit, as the unusual definition of "nudity" above reveals, such "device, costume or covering" itself would be deemed to run afoul of the "nudity" ban if the covering might be deemed to "simulate" and "give the appearance" of that which it covers. Thus, the ordinance effectively bans both actual nudity and "simulated" nudity.¹ In Pap's I, the five Justices of this Court who participated in the case were unanimous in the view that the public nudity provisions of the ordinance were content-based restrictions upon expressive conduct, which did not survive constitutional challenge under a strict scrutiny analysis. This Court was also unanimous in the view that the most persuasive mode of analyzing the free expression question was that employed by the four-Justice dissenting opinion authored by Justice White in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). See719 A.2d at 279 (opinion by Cappy, J.) (Justice White's analysis in Barnes dissent is directly applicable to the situation before us now); id. at 283 (Castille, J., concurring) (Justice White's analysis in Barnes dissent is persuasive and should be adopted as proper approach under Article I, § 7 of Pennsylvania Constitution).

The only division in this Court in Pap's I concerned whether the disputed provisions of the ordinance failed under the First and Fourteenth Amendments of the U.S. Constitution or under the separate guarantee of freedom of expression provided in Article I, § 7 of the Pennsylvania Constitution. Mr. Justice Cappy's majority opinion, which was joined by former Chief Justice Flaherty and Mr. Justice Nigro, analyzed the question under the federal Constitution. The Majority began by noting that, while the act of being nude is not in and of itself expressive conduct which is within the protection of the First Amendment, the U.S. Supreme Court has recognized that nude dancing is expressive conduct deserving of at least "some quantum of protection." The Majority then turned to the dual question of whether the Erie ordinance was related to the suppression of that expression, and thus was subject to strict scrutiny, or was content-neutral, and thus the "`less stringent standard ... announced in United States v. O'Brien [, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ] for regulations of noncommunicative conduct controls.'" 719 A.2d at 277, quoting Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989)

.

On the question of content-neutrality, the Majority canvassed the various opinions in the Barnes decision, noting, among other things, that the four-Justice Barnes dissent had garnered the most joinders. Ultimately, however, the Majority concluded that, although the separate opinions in Barnes were instructive, "there is no United States Supreme Court precedent which is squarely on point." Accordingly, the Majority "turn[ed] to our own independent examination of the Ordinance itself to determine whether it is related to the suppression of free expression." 719 A.2d at 278-79.

Although the ordinance was drafted broadly, so as to prohibit so much as even appearing in public in a state of nudity (or simulated nudity), the Majority noted that the City Council of Erie had stated that it adopted the provision to serve a more specific agenda, i.e., for the "purpose of limiting a recent increase in nude live entertainment within the City" which, it believed, led to negative secondary effects, i.e., "an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects." However, the Majority reasoned that the stated purpose of combating negative secondary effects was inextricably bound up with an "unmentioned purpose that directly impacts on the freedom of expression: that purpose is to impact negatively on the erotic message of the dance" which was presumed to be the cause of the secondary effects. In its independent analysis of the question, the Majority explicitly relied upon the reasoning in the Barnes dissent, which it quoted. Id. at 279. The Majority's conclusion that the ordinance revealed a "content-based motivation to suppress the expressive nature of nude dancing" led it to hold that it was subject to strict scrutiny, a scrutiny that required the governmental entity "to establish that the Ordinance is narrowly drawn to accomplish a compelling governmental interest." 719 A.2d at 279-80,citing Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 118, 112 S.Ct. 501, 116 L.Ed.2d 476 (1991)

. The Majority then proceeded to an "independent analysis" of the strict scrutiny issue, again invoking Justice White's dissent in Barnes as persuasive authority, and concluded that the statute was not narrowly drawn to accomplish a compelling governmental interest. In this regard, the Majority noted that there were several narrower methods available to combat the feared secondary effects that would not involve barring the expressive activity of nude dancing. 719 A.2d at 280. Finding the unconstitutional public nudity provisions of the ordinance to be severable from the remainder of it, the Majority struck down only those provisions. Because the Majority concluded that the ordinance violated the First Amendment, it did not reach or offer any opinion upon Pap's alternative claims that the ordinance: (1) violated the freedom of expression separately protected by Article I, § 7 of the Pennsylvania Constitution; and (2) was unconstitutionally overbroad. Id. at 281 n. 12.

The Concurrence by this author, which was joined by Mr. Justice (now Chief Justice) Zappala,...