Does Supreme Courts Ruling in Erie Dance Case Pose Threat to Commercial Speech Protection?
By John J. Walsh In City of Erie v. Pap’s A.M.tdba “Kandyland,” decided on March 29, the U.S. Supreme Court upheld an ordinance enacted by Erie, Pa., which made it a summary offense to knowingly or intentionally appear in public in a “state of nudity.” The respondent operated “Kandyland,” which featured totally nude erotic dance by women. The expressed purpose of the Erie ordinance was to combat the negative secondary effects associated with establishments like Kandyland. But the Pennsylvania Supreme Court struck down the ordinance because it detected an implicit purpose: to impact negatively the erotic message of the dance. The U.S. Supreme Court reversed and remanded in a judging joined by six justices. However, only a four-justice plurality joined in an opinion by Justice O’Connor, ruling that the ordinance was not aimed at the expressive content of nude dancing, “which falls within the outer ambit of First Amendment protection,” and that the test of “intermediate scrutiny” announce
