Cities can't ban nude dancing for fear of effect on neighborhood
By The Associated Press
12.23.02
PITTSBURGH — Cities can't ban nude dancing clubs simply because of their perceived negative effect on surrounding neighborhoods, the state Supreme Court has ruled in a case that had been handed back to it by the U.S. Supreme Court.
The ruling comes eight years after officials in Erie tried to clamp down on the Kandyland strip club, not by banning nude dancing, which the U.S. Supreme Court has ruled an affront to free speech inherent in erotica, but by targeting alleged "secondary effects" on the clubs' neighborhoods.
The 1994 ordinance required dancers to wear pasties and G-strings, reasoning that a toned-down dance club would tone down illegal behavior in the neighborhood.
Kandyland sued, and the case made it all the way to the U.S. Supreme Court, which ruled in 2000 in City of Erie v. PAP's A.M. that the Erie ordinance did not violate First Amendment rights to freedom of expression, in this case exotic dancing.
The high court handed the case back to the Pennsylvania Supreme Court for further consideration.
In a 34-page Dec. 19 ruling, the state Supreme Court said the Pennsylvania Constitution provides an even broader scope of protection concerning free speech than the U.S. Constitution. It re-affirmed its ruling that the Erie ordinance was too narrow and targeted constitutionally protected behavior.
"The stated purpose of combating negative secondary effects was 'inextricably bound up' with an 'unmentioned purpose that directly impacts on the freedom of expression; that purpose is to impact negatively on the erotic message of the dance,'" the court ruled.
The Kandyland decision by the U.S. Supreme Court has influenced scores of other cases.
At least 22 states and a multitude of municipalities have tightened or considered laws that make it harder for strip clubs to operate, according to the American Bar Association.
Advocates for the adult industry and free-speech rights have praised the ruling, while saying it is difficult to gauge the effect the decision might have on other states.
"Many municipalities have outdated, unrealistic and unscientific reports that indicate these secondary effects in neighborhoods," said Jonathan L. Katz of Marks & Katz, LLC, in Silver Spring, Md.
Katz is also president of the president of the Free Speech Coalition for Washington, D.C., Maryland and Virginia. The coalition is a trade association that represents the adult industry.
"The Pennsylvania Supreme Court said states have more power to give protection to their citizens than the federal government and that they're basing their decision on the state constitution," he said. "The indication is that in Pennsylvania, you must tread lightly when it comes to freedom of expression."
In Erie, the decision now matters little.
Stung by the city ordinance, owner Nick Panos sold Kandyland, which was renamed Kandy's Dinner Theater by the new owner.
In 1996, the state prohibited total nudity in clubs that serve liquor, which apparently led to a tradeoff in which many patrons migrated to clubs with drinks, pasties and G-strings.
Kandy's Dinner Theater closed four years later, with the owner calling the closing "our Christmas present" to neighbors who had fought the establishment since it opened.
Erie Solicitor Gerald Villella said he was aware of only one strip club now in the city, where dancers wear G-strings and pasties.
"It's really all we wanted in the first place," Villella said.