City of Erie v. Pap's A. M.
The Supreme Court upheld Erie, Pennsylvania's ban on public nudity as applied to a nude-dancing club, ruling that the law was aimed at combating crime and other side effects of such businesses rather than at suppressing any erotic message.
Because the ordinance targeted conduct rather than the content of expression, the Court applied a lenient First Amendment test rather than the strict scrutiny used for laws that single out speech because of its message, making it easier for cities to regulate nude dancing establishments going forward.
How it got here: A trial court struck the ordinance down, an intermediate appeals court reversed, and the Pennsylvania Supreme Court sided with Pap's under the First Amendment before Erie sought Supreme Court review.
The Case in Depth
What happened
Erie, Pennsylvania passed a law making it a summary offense to appear nude in public. Pap's A.M. ran "Kandyland," a club featuring fully nude erotic dancing, and the law would have required its dancers to wear pasties and a G-string. Pap's sued the city, seeking to have the ordinance declared unconstitutional and permanently blocked.
The question before the Court
Could a city ban all public nudity — including nude dancing at a strip club — without triggering the toughest First Amendment test?
The Court's answer
Yes — the Court held that Erie's ban on public nudity, as applied to require nude dancers to wear pasties and a G-string, did not violate the First Amendment. Because the city's stated purpose was to combat crime, prostitution, and other harmful side effects associated with nude-dancing clubs — not to suppress the erotic message of the dance itself — the ordinance counted as a content-neutral regulation of conduct rather than a targeted restriction on speech.
That meant the law only had to pass the more lenient four-part test from United States v. O'Brien, rather than the strict scrutiny reserved for laws aimed directly at suppressing a message. The Court found Erie's ordinance satisfied that test: it was within the city's power to enact, it served a real interest in curbing secondary effects, that interest was unrelated to the dance's erotic content, and requiring minimal coverings was not a greater restriction than necessary.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Cities and towns can require nude dancers to wear minimal coverings like pasties and G-strings without having to prove, in detail, that the requirement will meaningfully reduce crime — as long as they can point to a legitimate interest in curbing effects like prostitution and violence near such clubs. Adult entertainment businesses gained less legal ammunition to fight these ordinances in court.
What changes now
The case is sent back to the Pennsylvania Supreme Court to resolve any issues it did not previously reach, such as claims under the Pennsylvania Constitution or an overbreadth challenge. The ruling is a final decision on the federal constitutional question, meaning Erie's public nudity ordinance may now be enforced against nude-dancing establishments, subject to any remaining state-law issues on remand.
What this does not decide
The Court did not decide whether nude dancing enjoys full First Amendment protection — only that it falls within the outer edge of protected expression. It also did not resolve the ordinance's validity under the Pennsylvania Constitution or address an overbreadth challenge, leaving those issues for the state courts on remand.
Concurrences and dissents
Concurrence — Justice Scalia
Justice Scalia argued the case was actually moot because Pap's had genuinely gone out of the nude-dancing business, and would have dismissed on that basis. Reaching the merits anyway, he would have upheld the ordinance not under O'Brien's balancing test but on the ground that a general law regulating conduct, not specifically aimed at expression, is not subject to First Amendment scrutiny at all.
Dissent in part — Justice Souter
Justice Souter agreed the ordinance should be analyzed as content neutral under O'Brien, but argued the city had not built an adequate evidentiary record showing the ordinance's pasties-and-G-string requirement would actually reduce the harms Erie identified. He would have vacated and remanded to let Erie try to develop that evidence, rather than simply reversing.
Dissent — Justice Stevens
Justice Stevens argued the Court was, for the first time, using the secondary-effects doctrine to justify a total ban on protected expression rather than just its location, a doctrinal shift he said was unsupported by precedent and dangerous to free-speech principles. He also argued the record showed Erie's real target was nude dancing's message, not neutral conduct, pointing to the ordinance's preamble and councilmembers' statements.
How the Court got there
The legal reasoning, step by step
- The Court first addressed mootness, noting a case is moot only when there is no reasonable expectation that the challenged conduct could recur; because Pap's remained an incorporated company that could reopen a nude-dancing club, and because Erie had an ongoing injury from being unable to enforce its law, the dispute remained live.
- The Court then asked whether the ordinance was content neutral — that is, whether the government's reason for the law was unrelated to suppressing a particular message — because content-neutral conduct regulations get the more lenient review used in United States v. O'Brien, the 1968 case testing restrictions on symbolic speech, while content-based laws get strict scrutiny.
- The Court found Erie's stated purpose was to combat 'secondary effects' like crime, prostitution, and disease associated with nude-dancing establishments, not to suppress the erotic message of the dance itself, drawing an analogy to O'Brien's ban on draft-card burning, which targeted the act's disruptive impact rather than the anti-war message behind it.
- Having decided the law was content neutral, the Court applied O'Brien's four-part test: the ordinance was within the city's police power, it served a substantial government interest in curbing secondary effects, that interest was unrelated to suppressing expression, and the pasties-and-G-string requirement was no broader than needed since dancers could still convey an erotic message.
- The Court held that a city need not conduct its own studies to justify such a law; it may rely on secondary-effects evidence generated by other cities and courts, including the evidentiary record already discussed in the Court's earlier Barnes decision, so long as that evidence is reasonably relevant to the problem the city is addressing.
Doctrinal impact
Cases affected by this decision
Reaffirms Barnes v. Glen Theatre, Inc. (501 U.S. 560)
The Court relies on and clarifies Barnes, adopting the O'Brien framework it left unresolved for public nudity bans.
Reaffirms United States v. O'Brien (391 U.S. 367)
The Court applies O'Brien's four-part test as the governing framework for this content-neutral conduct regulation.
Reaffirms Renton v. Playtime Theatres, Inc. (475 U.S. 41)
The Court relies on Renton's rule that cities may use other cities' secondary-effects evidence to justify regulations.