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Nation's high court upholds nudity ban

July 14, 2002|by ANDREW SCHOTZ

martinsburg@herald-mail.com

Cities can ban nudity at public places, including strip clubs, not because of the morality but because of the possible side effects.

So said the U.S. Supreme Court in its 2000 ruling in City of Erie v. Pap's A.M.

The city of Erie, Pa., enacted a public indecency ordinance in 1994 that criminalized public nudity. The ordinance required exotic dancers to wear some type of cover, both top and bottom.

Pap's A.M., which owned the Kandyland nude dance club, sued, arguing that the ban infringed on its rights.

The Supreme Court has previously ruled that non-obscene nude dancing is a protected form of expression on the outer bounds of the First Amendment.

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The courts swung back and forth as City of Erie v. Pap's A.M. climbed up the judicial rungs.

A trial judge ruled in favor of Pap's and granted an injunction against the ordinance. A state appeals court overturned the ruling, siding with the city. Then, the Pennsylvania Supreme Court reinstated the trial court decision, in favor of Pap's.

Finally, in a fragmented 6-3 decision, the U.S. Supreme Court reversed one final time, upholding Erie's ordinance.

"By its terms, it regulates conduct alone," Justice Sandra Day O'Connor wrote in a majority opinion. "It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity."

Cities have the right to prohibit public nudity on the grounds that it may have harmful secondary effects, such as crime or prostitution, the Supreme Court ruled.

"It seems to give the government a great deal of power," said Dwight Sullivan, managing attorney for the American Civil Liberties Union of Maryland.

According to the American Family Association, the adverse secondary effects of these businesses include "unlawful sexual activities, sexually transmitted diseases, a deleterious effect on surrounding businesses, declining property values in surrounding residential neighborhoods, increased crime and blight and a general downgrading of the quality of life ..."

In a dissenting opinion in City of Erie v. Pap's A.M., Justice John Paul Stevens wrote, "Until now, the 'secondary effects' of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. For the first time, the Court has now held that such effects may justify the total suppression of protected speech."

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