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Nude dancing in the city of Erie, Pa., may be allowed as a protected form of expressive conduct under a Pennsylvania Supreme Court decision issued Friday. Revisiting a case that has appeared before it and the U.S. Supreme Court in different forms, a majority ruled that a provision of a local ordinance completely banning nudity violated Article I, � 7, of the state constitution. Finding that nude dancing is a form of expressive conduct, the majority, led by Pennsylvania Supreme Court Justice Ronald A. Castille, said in Pap’s A.M. v. City of Erie that the local ordinance suppressed that expression. Justice Thomas Saylor issued a short dissent, while Justice Sandra Schultz Newman did not participate in the case. When the U.S. Supreme Court voted on the case in 2000, it reversed the Pennsylvania high court’s decision that the provisions did not violate the federal Constitution. Castille said the majority was justified in finding, this second time around, that the provisions were again constitutional because the focus now was on the state constitution, which can be interpreted less strictly than its federal counterpart. “Nothing in the independent history of Article I, Section 7, requires us to discount the considered view of all justices who heard this case in Pap’s I that one obvious purpose of this ordinance was to suppress protected expression,” Castille said, “and that that purpose says volumes about whether this ordinance was content-based. “Accordingly, we affirm, under Article I, Section 7, both the approach taken in Pap’s I, and its unanimous finding that the ordinance is content-based.” The Erie City Council approved an ordinance in 1994 prohibiting public nudity, providing a broad definition of “nudity.” The ordinance affected a business run by Pap’s A.M., Kandyland, which featured completely nude erotic dancers. Under the ordinance, Kandyland’s dancers were required to wear at least pasties and G-strings. In 1998, in Pap’s I, the Pennsylvania Supreme Court acknowledged that the Erie City Council was trying to combat negative secondary effects such as violence, sexual harassment, public intoxication, prostitution and the spread of sexually transmitted diseases. But it determined that “the stated purpose for promulgating the ordinance is inextricably linked with the content-based motivation to suppress the expressive nature of nude dancing.” The court then used strict scrutiny in ruling that the public nudity provisions were unconstitutional, content-based restrictions on expressive conduct. The “unmentioned purpose” of the ordinance, the high court said, was to “impact negatively on the erotic message of the dance.” The majority based that conclusion exclusively on a dissent in a case decided by the U.S. Supreme Court in 1991, Barnes v. Glen Theatre Inc., Castille said. In Pap’s II, Castille was careful to note that the majority said it was persuaded by the Barnes dissent rather than bound by it. Finding that the public nudity provisions were severable from the rest of the ordinance in Pap’s I, the justices struck down only those provisions as violating the First Amendment to the U.S. Constitution. It did not reach any of the remaining issues. Pap’s I was accepted for review by the U.S. Supreme Court, which reversed and remanded. A plurality of the court concluded that the governmental objective of preventing harmful secondary effects from nude dancing outweighed restriction of expressive conduct. The U.S. justices also rejected the Pennsylvania court’s view of the “illicit motive” of the city council to negatively affect the erotic message of the dance, finding that consideration irrelevant. In addition, the U.S. Supreme Court rejected Pap’s motion to dismiss on the ground that Kandyland was no longer in operation. The justices noted that Pap’s was still incorporated in Pennsylvania and could decide to operate another nude dancing operation in the future. On remand, the state justices asked counsel to brief whether the appeal was moot, whether the ordinance violated the state constitution and whether the ordinance was overbroad. The justices first tackled the mootness question. The parties flipped the positions they held before the U.S. justices, with Pap’s arguing that the case was not moot because there was a chance the controversy could erupt between the two parties in the future and with Erie contending that further review was unnecessary since Kandyland was no longer in operation. Castille said the U.S. Supreme Court’s holding on mootness was not binding because the case was of a different nature at that point. Then, there was an order in place severing the ordinance’s public nudity provisions. That order would have become final if the U.S. justices had denied certiorari. But that factor did not exist in this stage of the proceedings, Castille said. He said the case was not moot, most significantly because Pap’s was still incorporated in the state. The court then turned to freedom of expression under Article I, � 7, of the state constitution. Pap’s argued that the court should adopt the same substantive analysis it used in Pap’s I. Pap’s correctly argued the principle that the Pennsylvania Supreme Court may find that the state constitution provides greater protection than the federal Constitution, Castille said. Erie contended that Pennsylvania and federal protections of expression are basically “co-extensive.” Acknowledging the broader protections of the state constitution, Erie maintained that protection should be limited to prior restraints and censorship. The majority agreed with Pap’s reasoning, deciding to follow the path it took in Pap’s I. Castille said the majority believed that analysis was consistent with the “less restrictive means analysis” under the state constitution that the court has applied in cases involving restrictions on commercial speech. “Adoption of such a unitary standard, we believe, adequately balances the fundamental right and governmental interests involved, and will also provide a consistent and ascertainable standard to govern future questions under Article I, Section 7,” Castille said. In a lengthy dissertation of the history of the protections under Article I, � 7, Castille emphasized how important it is for the court to “guard against encroachment” of those rights. He said the court’s job in Pap’s II was similar to its task in two previous cases, Commonwealth v. Smith, from 1992, and Insurance Adjustment Bureau v. Insurance Commissioner, from 1988. Both cases required the court to answer, under the state constitution, a question in which the prevailing federal standard was unclear. This left the court to forge its own path, he said. Therefore, Castille said, the majority found very helpful the fact that a unanimous court decided in Pap’s I that the challenged provisions of the Erie ordinance were unconstitutional under the federal Constitution. One of the main issues in Pap’s II, Castille said, was whether there is anything in Article I, � 7, and the court’s jurisprudence under that provision that required the court to conduct an analysis of the provision under United States v. O’Brien, a 1968 Pennsylvania Supreme Court case. The O’Brien test requires that the restriction be no more excessive than necessary to accomplish the governmental interest. The U.S. justices’ opinions in Pap’s I did not provide the Pennsylvania justices with much guidance, Castille said, especially considering that the five justices who agreed that O’Brien applied disagreed as to exactly how the test should be applied. Therefore, the majority said it was up to the high court to decide the Pennsylvania constitutional question on its own. “Our review of the distinct history of Article I, Section 7, as well as the Pennsylvania policy concerns we have touched on above, convinces us that there is nothing that requires, or even counsels us, to view this ordinance in the light adopted by the U.S. Supreme Court plurality,” Castille wrote. The majority said the O’Brien test, or any such form of intermediate scrutiny, was inappropriate when expressive conduct such as nude dancing is at issue. Quoting from Insurance Adjustment Bureau, in which the court came to a similar conclusion where protected commercial speech was at issue, Castille said the court treads “carefully where restraints are imposed … if there are less intrusive, practicable methods available to effect legitimate, important government interests.” The same was true of the expressive conduct of nude dancing, Castille said. “It is hardly onerous to require that a regulation that would seek to govern such expression, offered in a closed establishment to consenting adult patrons, be accomplished by a narrower, less intrusive method then the total ban on expression adopted here,” Castille said. Saylor issued a short dissenting opinion, supporting application of the O’Brien test to the case. “Such requirement, in my view, adequately accommodates the historic concerns of Article I, Section 7, and appropriately balances legitimate governmental interests with the points articulated by the majority,” Saylor said. Because the record was insufficient on that matter, Saylor said he would remand to the trial court for an evidentiary hearing. Philip B. Friedman of Ambrose, Friedman & Weichler in Erie represented Pap’s. Gregory A. Karle and Gerald J. Villella of the Erie City Solicitor’s Office represented Erie.

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