529 U.S. 277 (2000)
In September 1994 the city council of Erie, Pennsylvania, enacted Ordinance 75-1994.1 The ordinance made it a summary offense to knowingly or intentionally appear in public in a state of nudity.2 It defined nudity to include the showing of human male or female genitals, pubic area, buttocks, or female breast below the top of the areola as well as any device simulating those areas.3
Pap's A. M., a Pennsylvania corporation, operated an establishment known as Kandyland in Erie that featured totally nude erotic dancing performed by women.4 After the ordinance took effect, the dancers began wearing pasties and G-strings to comply with its requirements.5
On October 14, 1994, Pap's filed a complaint in the Court of Common Pleas of Erie County against the city, the mayor, and members of the city council.6 The complaint sought declaratory relief and a permanent injunction against enforcement of the ordinance.7 The trial court granted the injunction and struck down the ordinance as unconstitutional.8
On cross-appeals the Commonwealth Court reversed the trial court's order.9 The Pennsylvania Supreme Court granted review and reversed again, holding that the public nudity provisions violated Pap's rights to freedom of expression under the First and Fourteenth Amendments.10
The city petitioned for a writ of certiorari, which the United States Supreme Court granted.11 Pap's then filed a motion to dismiss the case as moot on the ground that Kandyland was no longer operating as a nude dancing club and Pap's was not operating such a club at any other location.12 The Supreme Court denied the motion.13
Whether the case became moot when Pap's ceased operating Kandyland?14
A case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.15
No. Although Kandyland closed and Pap's filed an affidavit stating it had ceased nude dancing operations, Pap's remains incorporated under Pennsylvania law and could resume such operations in Erie.16 The city of Erie suffers a concrete ongoing injury because the Pennsylvania Supreme Court invalidated its public nudity ordinance, barring enforcement against anyone appearing nude in public.17 Reversal by the Supreme Court would restore the city's ability to enforce the ordinance, satisfying Article III requirements.18
The case is not moot.19
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Joined by Justice Thomas
Justice Scalia would dismiss the case as moot.20 He emphasized that Pap's sole shareholder submitted an uncontested affidavit stating the corporation operates no active business, employs no individuals in nude dancing, maintains no contacts in adult entertainment, and has no intention to own or operate such an establishment in the future.21 Given the sale of the premises, the owner's advanced age, and the timing of closure before certiorari, Scalia concluded there is no reasonable expectation that the conduct will recur, rendering the dispute nonjusticiable.22
He noted that the situation is indistinguishable from Arizonans for Official English where the case was held moot due to unilateral action by the prevailing party.23 Scalia argued that the Court's theory of standing by adverse judgment below is insufficient to satisfy Article III.24
Whether Erie's public nudity ordinance is a content-neutral regulation of conduct subject to the O'Brien test?25
Government restrictions on public nudity are evaluated under the four-part O'Brien test for content-neutral restrictions on symbolic speech when the regulation is unrelated to the suppression of expression.26 Nude dancing receives some First Amendment protection but falls only within the outer ambit of that protection.27
Yes. The ordinance is a general prohibition on public nudity that regulates conduct rather than targeting the erotic message of nude dancing.28 It applies to all persons in Erie and replaces older indecency provisions predating Kandyland.29 Because the city's interest centers on secondary effects such as crime and public health rather than the primary effect on the audience, the ordinance qualifies as content-neutral and triggers O'Brien scrutiny rather than strict scrutiny.30
The ordinance is a content-neutral regulation subject to the O'Brien test.31
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Joined by Justice Thomas
Justice Scalia concurred in the judgment but rejected the O'Brien framework entirely.32 He maintained that the ordinance is a general law regulating conduct with only incidental effects on speech and therefore is not subject to First Amendment scrutiny at all.33 Scalia viewed the plurality's application of O'Brien as unnecessary and confusing.34
He stressed that the traditional rule allows general laws regulating conduct to stand without First Amendment analysis even when they incidentally affect expression.35 Scalia would uphold the ordinance without resort to any level of scrutiny because it does not target expression.36
Justice Thomas joined Justice Scalia's opinion concurring in the judgment without writing separately.37 He therefore agreed that the ordinance regulates conduct without triggering First Amendment scrutiny at all.38 Thomas endorsed the position that a general law regulating conduct and having only an incidental effect on speech does not violate the First Amendment.39
By aligning with Scalia, Thomas rejected application of the O'Brien test in this context.40 He viewed the ordinance as a valid general prohibition on public nudity that incidentally affects expression but requires no First Amendment analysis because it does not target the communicative aspects of nude dancing.41
Whether the ordinance's purpose is unrelated to the suppression of expression?42
A regulation is unrelated to the suppression of expression when its justification centers on combating harmful secondary effects such as crime, prostitution, and public health risks rather than the erotic message conveyed by the regulated conduct.43
Yes. The Pennsylvania Supreme Court concluded that the ordinance was related to the suppression of expression because it was targeted at the erotic message of nude dancing. We disagree.44 The ordinance's preamble and text demonstrate a focus on secondary effects, and the city council's findings align with precedents recognizing that such interests are unrelated to expression.45
The requirement of pasties and G-strings does not ban the message but merely mutes one aspect of the conduct while leaving ample alternative channels open.46
The ordinance's purpose is unrelated to the suppression of expression.47
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Justice Souter joined the Court's conclusion that the ordinance is content-neutral and subject to O'Brien but dissented from the application on the record.48 He stressed that intermediate scrutiny requires an evidentiary showing connecting the regulation to the asserted secondary effects and that Erie failed to produce or rely on any such demonstration beyond bare conclusions.49 Souter noted that the city council's recitation of findings did not constitute the required factual justification.50
He would have vacated the decision below and remanded for further proceedings to allow Erie an opportunity to develop an evidentiary record.51
Whether the ordinance satisfies the four-part O'Brien test for incidental restrictions on symbolic speech?52
Under the O'Brien test, a regulation is valid if: 1. it is within the constitutional power of the government to enact; 2. it furthers an important or substantial government interest; 3. the government interest is unrelated to the suppression of free expression; and 4. the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Yes. The first two factors are satisfied because Erie possesses police power to enact public nudity ordinances and has a substantial interest in combating secondary effects.53 The third factor holds because the interest targets secondary effects rather than expression.54 The fourth factor is met because the ordinance is narrowly tailored.55 It bans public nudity but permits dancers to convey their message while wearing pasties and G-strings.56 This imposes only a de minimis restriction that leaves open ample alternative channels.57
The ordinance satisfies the O'Brien test.58
Related opinions on this issue
Joined by Justice Ginsburg
Justice Stevens dissented, joined by Justice Ginsburg.59 He argued that the ordinance effects a total ban on protected expression by prohibiting the precise means of conveying the erotic message through full nudity.60 Stevens maintained that the secondary effects doctrine had never before justified complete suppression of protected speech and that the city's interest was too weak to support such a severe burden.61
He emphasized that the ordinance was deliberately targeted at Kandyland's type of nude dancing to the exclusion of other forms of nudity such as in theatrical productions.62 Stevens concluded that the censorial purpose of the ordinance precludes reliance on Barnes and requires invalidation under established First Amendment principles.63