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" announced in United States v. O'Brien was the appropriate basis for determining its constitutionality.

If the ordinance had been designed to suppress expression, strict scrutiny would have been required.  Just as the would have been service regulation O'Brien violated by burning his draft card was not aimed at suppressing his protest, but rather maintaining the integrity of the selective service system, the Erie ordinance, according to the plurality, was not intended to suppress the dancers' erotic message:

"Put another way, the ordinance does not attempt to regulate the primary effects of the expression, i.e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the4 impacts on public health, safety, and welfare...."

The plurality cited the Court's previous recognition of such secondary effects in Renton v. Playtime Theaters and Boos v. Barry.  The plurality rejected the argument that an ordinance