Pap's AM v. City of Erie

• Decision Date: 21 October 1998
• Citation: 719 A.2d 273,553 Pa. 348
• 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 Robinson, and James N. Thompson, in Their Official Capacities, Appellees.
• Court: Pennsylvania Supreme Court

553 Pa. 348

719 A.2d 273

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 Robinson, and James N. Thompson, in Their Official Capacities, Appellees.

Supreme Court of Pennsylvania.

Argued September 16, 1997.

Decided October 21, 1998.

Reargument Denied January 13, 1999.

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

Carl Max Janavitz, Pittsburgh, Michael Murray, Norristown, Stephen D. Shafron, Paul J. Cambria, Jr., Buffalo, NY, for Golden Triangle News, Inc., a Delaware Corp. t/d/b/a Golden Triangle News and Mello News; Monroeville News, Inc.; Fairview Books, Inc. t/d/b/a Good N Plenty; B.L.V.D. News; and North Hills News, Inc. (Amici Curiae).

Gregory A. Karle, Gerald J. Villella, Erie, for the City of Erie, Joyce A. Savocchio, Chris E. Maras, Mario S. Bognoni, Robert C. Brabender, Denise Robinson and James N. Thompson.

Kerry A. Fraas, George M. Janocsko, Michael McAuliffe, Pittsburgh, Robert Colville, Dist. Atty., for Allegheny County (Amicus Curiae).

Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE and NIGRO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

This is an appeal by allowance from the order of the Commonwealth Court reversing the trial court's order permanently enjoining the enforcement of the City of Erie's Ordinance 75-1994 ("Ordinance"), and striking the Ordinance in its entirety. For the following reasons, we now reverse.¹

On September 28, 1994, the City Council for the City of Erie ("City Council") enacted the Ordinance.² The Ordinance states, inter alia, that it is a summary offense to appear in a "state of nudity". In order to avoid being in a "state of nudity," a female person over the age of ten years of age would have to wear, at a minimum, what are commonly known as "pasties" and a "G-string". The effective date for the Ordinance was October 12, 1994.

Pap's A.M. ("Appellant") is the operator of an establishment known as "Kandyland" which features nude erotic dancing performed by women. On October 14, 1994, Appellant filed a complaint in equity, naming the City of Erie, the mayor for the City of Erie, and the members of the City Council ("Appellees") as defendants. In its complaint, Appellant requested a declaratory judgment declaring the Ordinance unconstitutional as well as injunctive relief and attorney's fees.

The Court of Common Pleas of Erie County held hearings on this matter. On January 18, 1995, the trial court determined that the Ordinance was unconstitutionally overbroad on its face. It therefore granted the permanent injunction and struck down the Ordinance. The trial court, however, denied Appellant's request for attorney fees.

Appellant and Appellees cross-appealed to the Commonwealth Court. The Commonwealth Court determined that the trial court erred when it held that the Ordinance was unconstitutionally overbroad. Furthermore, it determined that Appellant's additional claim that the Ordinance impermissibly infringed upon Appellant's right to freedom of expression as guaranteed by the United States and Pennsylvania Constitutions was not borne out. It therefore reversed the trial court's order striking the Ordinance and awarding Appellant injunctive relief.³

Appellant then filed a petition for allowance of appeal with this court. We granted review, limited to the issues of whether the Ordinance violates the right to freedom of expression as guaranteed by the United States and Pennsylvania Constitutions and whether the Ordinance is unconstitutionally overbroad.⁴

In examining whether the Ordinance violates Appellant's freedom of expression as guaranteed by the First Amendment⁵, we must initially determine whether nude dancing constitutes expressive conduct which is within the First Amendment's protective ambit. The act of being in the nude is not, in and of itself, entitled to First Amendment protection because no message is being conveyed. Cf. Texas v. Johnson, 491 U.S. 397, 403-406, 109 S.Ct. 2533, 2539-2540, 105 L.Ed.2d 342, 352-354 (1989)

(act of desecrating flag is not critical point in determining whether actor is engaging in expressive conduct; rather, the question to be answered is whether the actor intended to convey a particularized message). Yet the act of dancing nude, with its attendant erotic message, is an expressive act entitled to First Amendment protection. We can say this with certainty because a majority of the United States Supreme Court recently endorsed such a view in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Although Barnes was an otherwise hopelessly fragmented decision, eight of the nine members of the Court agreed that nude dancing, as it portrayed an erotic message, is expressive conduct and is entitled to some quantum of protection under the First Amendment. Id. at 565-566, 111 S.Ct. at 2460, 115 L.Ed.2d at 511 (Rehnquist, C.J., authoring the opinion announcing the judgment of Court, joined by O'Connor and Kennedy, JJ.); id. at 581, 111 S.Ct. at 2468, 115 L.Ed.2d at 521 (Souter, J., concurring); id. at 587, 111 S.Ct. at 2471, 115 L.Ed.2d at 525 (White, J., dissenting, joined by Marshall, Blackmun, and Stevens, JJ.)

As we have determined that nude dancing is entitled to some First Amendment protection, we must next decide whether the Ordinance is related to the suppression of expression. Johnson, 491 U.S. at 403, 109 S.Ct. at 2539, 105 L.Ed.2d at 352. In making this determination, we determine whether the governmental interest in enacting the Ordinance was a content-neutral one. See United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672, 680 (1968)

. Resolution of this inquiry is critical to our analysis for if the Ordinance is related to the suppression of expression, then the onerous strict scrutiny test applies. Johnson 491 U.S. at 403,

109 S.Ct. at 2539,

105 L.Ed.2d at 352; see also United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 L.Ed.2d 736, 744 (1983) (content-based restrictions will be upheld only if they are narrowly drawn to accomplish a compelling governmental interest.) If, however, the governmental interest is content-neutral, and therefore is unrelated to the suppression of expression, "then the less stringent standard . . . announced in United States v. O'Brien for regulations of noncommunicative conduct controls."⁶

Johnson, 491 U.S. at 403,

109 S.Ct. at 2539,

105 L.Ed.2d at 352.

In determining whether the Ordinance is related to the suppression of free expression, the Commonwealth Court below turned for guidance to the United States Supreme Court's decision in Barnes, supra, a case which presented a situation very similar to the one presented in the matter sub judice. After engaging in the difficult task of determining what, if any, holding could be gleaned from the hopelessly fragmented Barnes Court, the Commonwealth Court determined that the concurring opinion authored by Justice Souter was dispositive.

We, too, begin our analysis of whether the Ordinance is content-based by reviewing the Barnes decision. The Court in Barnes analyzed an Indiana statute, which is strikingly similar to the Ordinance we are examining, to determine whether that statute violated the First Amendment. Unfortunately for our purposes, the Barnes Court splintered and produced four separate, non-harmonious opinions. We must review each of the opinions to see if any holding can be gleaned from them.

The Chief Justice, in his opinion announcing the judgment of court, concluded that nude dancing is expressive conduct within the peripheral boundaries of First Amendment protection. He determined that the statute in question was a content-neutral restriction on speech since the governmental interest in protecting societal order and morality was unrelated to the suppression of free expression. Id. at 568, 111 S.Ct. at 2461, 115 L.Ed.2d at 512. He went on to conclude that the statute met the less stringent standard of O'Brien.

Justice Scalia authored a separate concurring opinion. Barnes, 501 U.S. at 572, 111 S.Ct. at 2463, 115 L.Ed.2d at 515 (Scalia, J. concurring). Although he agreed with the Chief Justice's conclusion that the statute was constitutional, Justice Scalia arrived at this conclusion by a radically different route. Disagreeing with the other eight members of the Court, he would have found that nude dancing is entitled to no First Amendment protection, and that only a rational basis for the statute need exist for the statute to be found constitutional. Id. at 580, 111 S.Ct. at 2468, 115 L.Ed.2d at 520.

Justice Souter also agreed with the result reach by the Chief Justice, but wrote separately to express his view that the content-neutral governmental interest forwarded by the statute was prevention of the negative secondary effects (such as prostitution, sexual assault, and other criminal acts) which are associated with nude dancing establishments. Id. at 582, 111 S.Ct. at 2469, 115 L.Ed.2d at 522 (Souter, J., concurring).

Justice White's dissenting opinion, which was joined by Justices Marshall, Blackmun, and Stevens, garnered the most votes of any of the Barnes opinions. Id. at 587, 111 S.Ct. at 2471, 115 L.Ed.2d at 525 (White, J., dissenting). Justice White expressed the opinion that the purpose of the statute was "to protect the viewers from what the State believes is the harmful message that nude dancing communicates." Id. at 591, 111 S.Ct. at 2473, 115 L.Ed.2d at 527. Thus, since the statute was content-based, it was subject to analysis under the strict scrutiny test, a test which the dissenters believed the statute could not pass because the statute was not narrowly tailored. Id. at 594, 111 S.Ct. at 2475, 115 L.Ed.2d at 529.

From this hodgepodge of opinions, the Commonwealth Court selected the concurring opinion authored by Justice Souter as expressing the position of the Court and accorded it the status of binding precedent. In...