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ARTICLE: PENNSYLVANIA'S SUPREME COURT VINDICATES FREE EXPRESSION RIGHTS

Pennsylvania's Supreme Court gave a holiday gift for free expression on December 19, 2002, when it proclaimed that Pennsylvania's constitution provides more free expression protection than does the United States First Amendment. The court reaffirmed its invalidation of Erie, Pennsylvania's ban on nude dancing in exotic nightclubs, despite the U.S. Supreme Court's 2000 decision that the ban doesn't violate the First Amendment. After the decision was issued, the Associated Press quoted me about the case (click here). In the light of this case,  The O'Reilly Factor ( Fox Television News) interviewed me on February 7, 2003, about Constitutional protections for exotic dancing. 

The case is Pap's A.M. t/d/b/a Kandyland v. City of Erie (Penn. Supreme Court: (read the United States Supreme Court decision here). As with most vindications of free expression rights, the importance of Pennsylvania's high court opinion transcends the immediate subject of nude dancing to assure strong protection to a wide range of expressive conduct, including political expression and all types of artistic expression.

In this appellate case, the Pap's exotic nightclub fought a municipal regulation requiring pasties and G-strings on its exotic dancers, arguing that the regulation impermissibly inhibits the expressive message conveyed by nude exotic dancing. Pap's won a resounding victory in the first instance in the Pennsylvania Supreme Court, which agreed that exotic dancing includes an expressive message that is entitled to legal protection. Although many people at first blush might question whether exotic dancing includes any expressive message, dance for a wide range of entertainment purposes (from nude dancing to tap dancing to ballet) involves an artistic message, no matter whether everyone likes the medium or the message. Exotic dancing involves such expressive and creative activity as choreography, expressing an erotic message, costumes, music, lighting, staging, and interaction with a live audience.

The city of Erie successfully applied for certiorari review in the United States Supreme Court. In an ironic twist, Pap's/Kandyland informed the United States Supreme Court, two months before oral argument, that the club had closed its doors, and asked the court to dismiss the case as moot. Nothing doing, said the United States Supreme Court, and the case proceeded forward.

The United States Supreme Court decided that Erie's ordinance did not violate the First Amendment. Fortunately, however, the Supreme Court in Pap's and in this year's Alameda Books decision, put up significant hurdles to municipalities before they can limit adult entertainment, including requiring municipalities to show negative secondary effects of adult entertainment before proceeding further with regulation, and enabling adult businesses to counteract such studies with their own studies. .

The United States Supreme Court sent the Pap's case back to the Pennsylvania Supreme Court, after finding that the state supreme court did not distinguish the extent to which the state court's ruling relied on the state's constitution rather than on the United States First Amendment. In response, on December 19, 2002, the Pennsylvania Supreme Court reinstated its invalidation of the Erie nude dancing ban, and confirmed that its decision relied exclusively on Pennsylvania's constitution. The state supreme court confirmed that its constitution provides broader protection to nude dancing than does the United States First Amendment. For one thing, as the state supreme court pointed out, the Pennsylvania constitution speaks of protecting communication, which goes farther textually than the First Amendment's protection of speech.

The implications of this Pennsylvania free expression victory transcend Pennsylvania's borders, to encourage other state courts always to consider carefully whether their state constitutions provide more protection for free expression and other liberty interests than does the United States Constitution. When the answer is in the affirmative, the United States Supreme Court is not necessarily the final word. 

December 23, 2002. This article also appeared in the Association of Club Executives Newsletter (January 2, 2003).

Marks & Katz, LLC, vigorously fights for the rights of the adult entertainment industry. We provide broad-based service to the industry for criminal and obscenity defense, constitutional and civil litigation, First Amendment advice, and business advice. Partner Jon Katz is President of the Free Speech Coalition of the District of Columbia, Maryland, and Virginia, Inc. The media frequently turns to Jon for opinions and analysis on vital issues facing the adult industry (click here). For further information on our experience serving the adult entertainment industry and Constitutional rights, click here. 

Marks & Katz strongly believes in charging a fair price for quality adult entertainment representation (click here). For representation on adult entertainment matters, please contact partner Jon Katz. 

For samples of Marks & Katz's wins for justice, click here. (Each case is different (e.g., with a different set of facts, law, and adjudicators), and this listing is by no means meant to indicate the results Marks & Katz, LLC, will obtain for future clients. Our goal, of course, is for winning advocacy at every turn).

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