Rondi Thorp, City of Erie v. Pap’s A.M. The First Amendment: Wounded in the War for Freedom of Expression, 36 Gonz. L. Rev. 183 (2001).
The Supreme Court has long held that freedom of non-verbal expression is a right deserving of First Amendment protection. The First Amendment provides in part that “Congress shall make no law… abridging the freedom of speech, or of the press; or of the right of the people to peaceably assemble.” In City of Erie v. Pap’s A.M., the Court solidified its previous opinion in Barnes v. Glen Theatre Inc., which had garnered only plurality support, and found that nude dancing deserved limited First Amendment protection. The Court found that nude dancing often resulted in deleterious secondary effects. Interestingly, the Pap’s A.M. Analysis departed from precedent, which typically analyzed whether similar ordinances regulated the time, place, or manner in which a message could be communicated. Instead, the Pap’s A.M. Court concentrated on the content neutrality of the ordinance and proceeded to apply the four-prong test established in O’Brien v. United States. The Court determined that the ordinance met the O’Brien test and upheld the restriction. In doing so, it increased the power of local governments to regulate previously protected expression when the expression results in undesirable secondary effects. This decision weakens the First Amendment… Read more