Erie v. Pap's A. M.,
529 U.S. 277 (2000)

Annotate this Case
  • Syllabus  | 
  • Case





No.98-1161. Argued November 10, 1999-Decided March 29, 2000

Erie, Pennsylvania, enacted an ordinance making it a summary offense to knowingly or intentionally appear in public in a "state of nudity." Respondent Pap's A. M. (hereinafter Pap's), a Pennsylvania corporation, operated "Kandyland," an Erie establishment featuring totally nude erotic dancing by women. To comply with the ordinance, these dancers had to wear, at a minimum, "pasties" and a "G-string." Pap's filed suit against Erie and city officials, seeking declaratory relief and a permanent injunction against the ordinance's enforcement. The Court of Common Pleas struck down the ordinance as unconstitutional, but the Commonwealth Court reversed. The Pennsylvania Supreme Court in turn reversed, finding that the ordinance's public nudity sections violated Pap's right to freedom of expression as protected by the First and Fourteenth Amendments. The Pennsylvania court held that nude dancing is expressive conduct entitled to some quantum of protection under the First Amendment, a view that the court noted was endorsed by eight Members of this Court in Barnes v. Glen Theatre, Inc., 501 U. S. 560. The Pennsylvania court explained that, although one stated purpose of the ordinance was to combat negative secondary effects, there was also an unmentioned purpose to "impact negatively on the erotic message of the dance." Accordingly, the Pennsylvania court concluded that the ordinance was related to the suppression of expression. Because the ordinance was not content neutral, it was subject to strict scrutiny. The court held that the ordinance failed the narrow tailoring requirement of strict scrutiny. After this Court granted certiorari, Pap's filed a motion to dismiss the case as moot, noting that Kandyland no longer operated as a nude dancing club, and that Pap's did not operate such a club at any other location. This Court denied the motion.

Held: The judgment is reversed, and the case is remanded. 553 Pa. 348, 719 A. 2d 273, reversed and remanded.

JUSTICE O'CONNOR delivered the opinion of the Court with respect to Parts I and II, concluding that the case is not moot. A case is moot when the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome. County of Los Angeles v. Davis, 440 U. S. 625, 631. Simply closing Kandyland is not sufficient to moot the case because Pap's is still incorporated under Pennsylvania



law, and could again decide to operate a nude dancing establishment in Erie. Moreover, Pap's failed, despite its obligation to the Court, to mention the potential mootness issue in its brief in opposition, which was filed after Kandyland was closed and the property sold. See Board of License Comm'rs of Tiverton v. Pastore, 469 U. S. 238, 240. In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed below, seeks to have the case declared moot. And it is the defendant city that seeks to invoke the federal judicial power to obtain this Court's review of the decision. Cf. ASARCO Inc. v. Kadish, 490 U. S. 605, 617-618. The city has an ongoing injury because it is barred from enforcing the ordinance's public nudity provisions. If the ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United States, 506 U. S. 9, 13. And Pap's still has a concrete stake in the case's outcome because, to the extent it has an interest in resuming operations, it has an interest in preserving the judgment below. This Court's interest in preventing litigants from attempting to manipulate its jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness. See, e. g., United States v. W T. Grant Co., 345 U. S. 629, 632. Pp. 287-289.


1. Government restrictions on public nudity such as Erie's ordinance should be evaluated under the framework set forth in United States v. O'Brien, 391 U. S. 367, for content-neutral restrictions on symbolic speech. Although being "in a state of nudity" is not an inherently expressive condition, nude dancing of the type at issue here is expressive conduct that falls within the outer ambit of the First Amendment's protection. See, e. g., Barnes, supra, at 565-566 (plurality opinion). What level of scrutiny applies is determined by whether the ordinance is related to the suppression of expression. E. g., Texas v. Johnson, 491 U. S. 397,403. If the governmental purpose in enacting the ordinance is unrelated to such suppression, the ordinance need only satisfy the "less stringent," intermediate O'Brien standard. E. g., Johnson, supra, at 403. If the governmental interest is related to the expression's content, however, the ordinance falls outside O'Brien and must be justified under the more demanding, strict scrutiny standard. Johnson, supra, at 403. An almost identical public nudity ban was held not to violate the First Amendment in Barnes, although no five Members of the Court agreed on a single rationale for that conclusion. The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. By its terms, it regulates conduct alone. It does not target

Full Text of Opinion

Primary Holding

Regulations are valid if they are not related to the suppression of expression and meet the four-factor test provided by U.S. v. O'Brien (1968). Nudity cannot be considered an inherent form of expression.


Pap's ran a nude dancing establishment in the city of Erie, at which women performed dancing totally nude. This conflicted with a city ordinance that banned public nudity. Pap's sought to prevent the enforcement of the ordinance against it by seeking declaratory relief and a permanent injunction. The Pennsylvania Supreme Court ruled in its favor, holding that the ban on public nudity violated the First Amendment right to freedom of expression.



  • Sandra Day O'Connor (Author)
  • William Hubbs Rehnquist
  • Anthony M. Kennedy
  • David H. Souter
  • Stephen G. Breyer

Under O'Brien, a less stringent standard is required for content-neutral regulations to comply with the First Amendment. Ordinances banning public nudity fit within the O'Brien framework for evaluating content-neutral restrictions on symbolic speech. The government has an interest in preventing prostitution and other criminal activity, which is not inherently related to the expression of the erotic message in nude dancing despite language in the preamble of the ordinance indicating that it is intended to ban erotic dancing. Even if the city acted with an illicit motive in drafting the statute, it may not be invalidated as unconstitutional if it complies with the First Amendment on its face.


  • Antonin Scalia (Author)
  • Clarence Thomas

The ordinance in fact is ineffective precisely because it is content-neutral and fails to ban the communicative aspects of nude dancing. If it did ban those content-specific aspects, it still would be constitutional because the First Amendment does not prevent the government from banning nude dancing to further public morality.

Concurrence/Dissent In Part

  • David H. Souter (Author)

The city failed to provide sufficient evidence to pass the intermediate scrutiny standard. In these cases, the government has the burden of showing that the harm that it is seeking to prevent actually results from the expressive activity that it is trying to restrict. The ordinance is not reasonably designed to address a concrete problem.


  • John Paul Stevens (Author)
  • Ruth Bader Ginsburg

Secondary effects of expressive conduct should not justify the suppression of otherwise protected activity in its entirety.

Case Commentary

Even though nude dancing is expressive conduct, nudity itself is not an expressive condition in the way that it is used here, merely for erotic stimulation. If protestors chose to demonstrate nude for a particular reason, the case might unfold differently.

Disclaimer: Justia Annotations is a forum for attorneys to summarize, comment on, and analyze case law published on our site. Justia makes no guarantees or warranties that the annotations are accurate or reflect the current state of law, and no annotation is intended to be, nor should it be construed as, legal advice. Contacting Justia or any attorney through this site, via web form, email, or otherwise, does not create an attorney-client relationship.

Disclaimer: Official Supreme Court case law is only found in the print version of the United States Reports. Justia case law is provided for general informational purposes only, and may not reflect current legal developments, verdicts or settlements. We make no warranties or guarantees about the accuracy, completeness, or adequacy of the information contained on this site or information linked to from this site. Please check official sources.