Supreme Court of the United States · 2000 · Constitutional Law
Constitutional LawFirst AmendmentFreedom of ExpressionExpressive ConductContent NeutralityFirst Amendmentnude dancingexpressive conduct
Facts
Erie enacted Ordinance 75-1994 making it an offense to appear in public in a state of nudity. Pap's operated Kandyland, an establishment featuring totally nude erotic dancing by women, and compliance with the ordinance would require dancers to wear at least pasties and a G-string. Pap's sued for declaratory and injunctive relief against enforcement of the ordinance. After certiorari was granted, Pap's argued the case was moot because it had ceased operating Kandyland, but it remained incorporated and could resume such operations in Erie.
Issue
Whether Erie's public nudity ordinance, as applied to nude erotic dancing, violates the First Amendment. Also, whether the case became moot when Pap's stopped operating its nude dancing establishment.
Rule
Nude dancing is expressive conduct within the outer ambit of First Amendment protection, but a generally applicable public nudity ban is content neutral if its purpose is unrelated to suppression of expression, such as combating harmful secondary effects. Such a regulation is evaluated under the four-part United States v. O'Brien test and is valid if it is within governmental power, furthers an important or substantial interest, that interest is unrelated to suppression of expression, and the incidental restriction is no greater than essential.
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One of 10 multiple-choice questions for this case. Pick an answer to see why.
The city of Toledo enacts a public indecency ordinance barring any person from appearing nude in public places. Velvet Star, Inc., which had operated a club featuring fully nude dancing, wins a state supreme court judgment blocking enforcement; after the city seeks further review, Velvet Star closes the club, sells the building, but remains an Ohio corporation and states only that it is not currently operating such a venue anywhere in Toledo.
Is the constitutional challenge most likely moot?
Explanation. The case is not moot under the majority's reasoning. A case is moot only when the issues are no longer live or the parties lack a legally cognizable interest in the outcome. Where the business that prevailed below remains incorporated and could resume the regulated activity, it still has a stake in preserving the favorable judgment. Meanwhile, the city has an ongoing injury because it is barred from enforcing its ordinance. The majority did not require proof of a definite reopening plan.