*1 ORDER PER CURIAM: NOW, October, 14th day
AND thе Petition for Appeal following Allowance of is GRANTED limited to the issue: Constitution, Pennsylvania under the the require-
Whether
cause and reasonable
for war-
probable
suspicion
ments
stops
present
rantless
or future criminal
pertain
activity.
and not
criminal
activity,
past
v. ERIE, Joyce Savocchio, Maras, The CITY OF A. Chris E. Mario Bagnoni, Brabender, Robinson, S. Robert C. Denise and James Thompson, Capacities, Appellees. N. in Their Official Pennsylvania. Court of
Argued Sept. 1997. Decided Oct. 1998. Reargument Denied Jan. *3 Kandyland. Friedman, Erie, A.M. for PAP’s B.
Philip t/d/b/a Janavitz, Murray, Norris- Pittsburgh, Michael Max Carl Jr., Buffalo, NY, Cambria, Shafron, Paul town, D. J. Stephen News, Inc., Corp. a Delaware Triangle for Golden t/d/b/a News, News; and Mello Monroeville Triangle News Golden Books, Plenty; N Inc.; Inc. Good B.L.V.D. Fairview t/d/b/a (Amici Curiae). News, News; Inc. and North Hills Erie, Karle, Villella, City of J. for the A. Gerald Gregory Savocchio, Maras, Erie, Bognoni, E. Mario S. Joyce A. Chris Brabender, Thomp- Robinson and James N. Denise Robert C. *4 son. McAuliffe, Fraas, Janocsko, M. Michael
Kerry George A. Colville, Allegheny County Atty., Robert Dist. Pittsburgh, Curiae). (Amicus ZAPPALA, CAPPY, FLAHERTY, C.J., and
Before NIGRO, and JJ. CASTILLE THE
OPINION OF COURT CAPPY, Justice. an of appeal by
This is allowance from the order the reversing perma Commonwealth Court the trial court’s order nently enjoining City the enforcement of the of Erie’s Ordi (“Ordinance”), striking nance 75-1994 the Ordinance in its reasons, entirety. following For the we now reverse.1 City the September City On Council for the of Council”) the (“City Erie enacted Ordinance.2 The Ordinance jurisdiction pursuant § 1. We have over this matter to Pa.C.S. part: 2. The Ordinance states in relevant person knowingly intentionally public place: 1. A who or in a intercourse; engages a. in sexual engages by Pennsyl- b. in deviate sexual intercourse as dеfined the Code; vania Crimes appears nudity, c. in a state of or himself, genitals person fondles the of d. herself or another com- Indecency, Summary mits Public Offense. "Nudity” showing 2. genital means the of the human male or female (sic), pubic fully opaque area or with less buttocks than a covering; showing fully of the female breast with less than a opaque covering any part nipple; exposure any of of of device, costume, covering gives appearance or of or hair, cleft, genitals, pubic perineum region simulates the natal anal or pubic region; exposure any hair or the of device worn as a cover over breast, nipples areola of the female which device simulates and/or gives appearance nipples the realistic areola. and/or places open 3. "Public Place” includes all outdoor owned or general public, buildings places and all and enclosed owned or entertainment, open general including places public, such taverns, restaurants, clubs, theaters, halls, halls, banquet party dance members, specific rooms or halls limited to restricted to adults or to attend, patrons charge whether or an invited to admission levied. 1(c) prohibition apply 4. The set forth in subsection shall not to: (10) Any years age; ten a. child under or Any exposing process breastfeeding b. individual a breast in the (2) years age. an infant under two 6. CONSTRUCTION AND SEVERABILITY—It is the intention of construed, City provisions of Erie that the of this ordinance be interpreted enforced and in such a mаnner as will cause least possible infringement rights speech, of the constitutional of free free expression, process, equal protection rights due or other fundamental purposes consistent with the of this ordinance. Should a court of ordinance, competent jurisdiction any part determine that of this any application excessively or enforcement of it is restrictive of such *5 in a appear to alia, summary offense states, it is a inter in a “state of being to avoid In order nudity”. “state age years of ten age over the nudity,” person a female commonly known minimum, are wear, what at a would have for the effective date The “G-string”. a and “pasties” as 12, 1994. Ordinance was October of an establishment operator Pap’s (“Apрellant”) A.M. nude erotic features which “Kandyland” known as filed Appellant On October by women. performed Erie, mayor for naming City equity, complaint Council City of the Erie, the members City of and re- Appellant complaint, In its as defendants. (“Appellees”) un- the Ordinance judgment declaring declaratory quested attorney’s and fees. injunctive relief as well as constitutional hearings held County of Erie of Common Pleas The Court trial court deter- January matter. On on this on unconstitutionally overbroad that the Ordinance was mined and injunction granted permanent its face. It therefore court, however, denied The trial down the Ordinance. struck attorney fees. Appellant’s request to the Common Appellees cross-appealed Appellant that the Court determinеd Court. The Commonwealth wealth unconsti it held that the trial court erred when Ordinance Furthermore, Appel it tutionally overbroad. determined in impermissibly additional claim that the Ordinance lant’s expression to freedom of fringed upon Appellant’s right Pennsylvania Constitu guaranteed by the United States the trial out. It therefore reversed tions was not borne awarding Appellant striking the Ordinance and court’s order injunctive relief.3 petition appeal filed a for allowance
Appellant then review, limited to the issues granted this court. with We ordinance, liberties, portion specific of the or rights then such ordinance, remainder, application shall be severed from effect. shall continue in full force and consti- Court found that the Ordinance was the Commonwealth 3. Since tutional, Appellant’s that it was entitled need to address claim it saw no attorney's fees. whether the Ordinance the right expres violates to freedom of sion as guaranteed by Pennsylvania the United States and unconstitutionally Constitutions and whether the Ordinance is overbroad.4
In examining whether the Ordinance violates Appel expression guaranteed lant’s freedom of by the First Amendment5, initially we must determine whether nude danc ing expressive constitutes conduct which is within the First protective Amendment’s The act of in the being ambit. nude not, itself, in is and of entitled to First Amendment protection Johnson, message conveyed. because no Texas v. being Cf. 397, 403-406, 2533, 2539-2540, 491 U.S. 109 S.Ct. 105 L.Ed.2d (1989) (act 342, desecrating flag of is not critical point 352-354 in determining engaging whether actor is con expressive duct; rather, the question be answered is whether the actor convey particularized message). intended to a Yet the act of nude, dancing with its attendant erotic is an message, expres act protection. say sive entitled to First Amendment canWe certainty majority this with of because the United States recently Court endorsed such a view Barnes v. Theatre, Inc., 560, 2456, 111 Glen 501 U.S. S.Ct. 115 L.Ed.2d (1991). 504 Although Barnes was an otherwise hopelessly decision, fragmented of the nine eight members of the Court agreed dancing, portrayed that nude as it an erotic message, expressive conduct and is quantum entitled to some of 565-566, protection under the First Amendment. Id. at 111 2460, C.J., at at (Rehnquist, S.Ct. 115 L.Ed.2d 511 authoring Court, opinion announcing judgment joined JJ.); 581, Kennedy, 2468, 115 O’Connor and id. at 111 S.Ct. at (Souter, J., 587, concurring); L.Ed.2d at 521 at 111 id. S.Ct. at below, reviewing In scope the determination of the court our plenary presented questions review is as the issues in this case are Co., 124, 130, Phillips law. See v. A-Best Products 542 Pa. 665 A.2d 1167, (1995). 1170 applicable 5. The First Amendment is made to the states the Due Education, Process Clause of the Fourteenth Amendment. Board of Pico, 853, Island Trees Union Free School Dist. No. 26 v. 457 U.S. 855 n. 1, 2799, 1, 435, (1982). 102 S.Ct. 2802 n. 73 L.Ed.2d n. 1
355
J.,
joined by
(White,
dissenting,
2471,
525
L.Ed.2d at
115
JJ.)
Stevens,
Marshall, Blackmun, and
is entitled
that nude
determined
As we have
must next decide
we
protection,
Amendment
to some First
expres
suppression
to the
is related
whether the Ordinance
2539,
L.Ed.2d
Johnson,
at
105
at
109 S.Ct.
491 U.S.
sion.
determination,
whether
we determine
making
at 352. In
was a
enacting
the Ordinance
interest
governmental
O’Brien,
v.
391 U.S.
States
content-neutral one. See United
1673, 1679,
L.Ed.2d
680
367, 377,
S.Ct.
for if the
analysis
to our
is critical
inquiry
Resolution of this
then the
expression,
suppression
related to the
Ordinance is
Johnson,
491 U.S.
scrutiny
applies.
test
onerous strict
352;
see also United States
In whether Ordinance the Commonwealth Court be- expression, of free suppression to the United States Court’s guidance turned for low Barnes, presented a situation supra, in case which decision judice. sub in the matter presented to the one vеry similar "government regulation is suffi- stated that the 6. The O’Brien Court following four-part test: ciently justified” it meets all factors of the if 1) power regulation within the constitutional Promulgation of the government; 2) governmental important substantial regulation furthers an The interest; suppression 3) of free governmental is unrelated to the The interest expression; and 4) is no Amendment freedoms restriction on First The incidental that interest. greater to the furtherance of than essential 1673, 1679, O'Brien, 20 88 S.Ct. v. United States 680 L.Ed.2d what, engaging After in the difficult task of if determining any, could from the holding gleaned hopelessly fragmented be Barnes Court, the Commonwealth Court determined that the concurring opinion dispositive. authored Justice Souter was
We, too, begin analysis our of whether the Ordinance is the Barnes decision. The Court by reviewing content-based Barnes statute, analyzed strikingly an Indiana which is examining, similar to the Ordinance we are to determine whether that statute violated the First Amendment. Unfortu- the Barnes Court nately purposes, for our splintered produced separate, opinions. four non-harmonious must We opinions any holding review each of the to see if can be gleaned from them. Justice,
The
in his opinion announcing
judgment
Chief
court,
concluded that nude dancing
expressive
conduct
within the
of First
peripheral
protec-
boundaries
Amendment
tion. He determined that
question
statute
was
speech
governmental
content-neutral
restriction on
since the
protecting
morality
interest
societal order and
unrelat-
Id. at
ed to
suppression
expression.
of free
111 S.Ct.
at
at
He
L.Ed.2d
went on to conclude that the
standard of O’Brien.
statute
stringent
met
less
Justice Scalia authored a separate
concurring opinion.
U.S.
S.Ct. at
Justice Souter also with the by result reach the Justice, separately Chief but wrote to express his view that governmental the content-neutral by interest forwarded (such prevention negative statute was secondary effects assault, acts) prostitution, sexual and other criminal
357
582,
Id. at
dancing
are
with nude
establishments.
associated
J.,
2469,
(Souter,
concurring).
at 522
S.Ct. at
115 L.Ed.2d
joined by
dissenting opinion, which
Justice White’s
Marshall, Blackmun,
Stevens, garnered the most
Justices
587, 111
Id. at
S.Ct. at
any
opinions.
votes of
of the Barnes
(White, J.,
2471,
dissenting).
Justice
While we with the Commonwealth Court’s plight trying when faced with to make sense out of we cannot agree concurring that Justice Souter’s is bind opinion ing precedent. agree that it is possible together We cobble Yet, holding out of a fragmented decision.7 order to do so, majority in agreement of the Court must be on the concept holding. certainly which is to be deemed the It fact, supra. opinion page In we have done so in this *9 for which stands opinion to find that a Justice’s permissible where those is grounds” precedential, “narrowest but by a expressed of ideas are a sub-set grounds” “narrowest finding The mere other members of Court. majority of than others does a narrower belief expressed that one Justice majority of the requirement that a dispense not with concept that can be concept on a before agree need Court binding precedent. treatеd as posi- find that Justice Souter’s simply possible
It is if we were to tion Barnes in commanded five votes. Even an arguendo concurring opinion provided that his assume than, yet still encom- which was “narrower” approach with, the one taken Chief by and consistent passed Justice, provide only would four votes such a concession The fifth vote for Justice Souter’s position. Justice Souter’s provided by It cannot be position forthcoming. is not Scalia, dancing on nude are not that restrictions who believed can it First Amendment. Nor analyzed pursuant to the to be dissenters, rejected -the notion that the that the who be said effects via the statute combating secondary goal state’s content-neutral, in with agreement statute were rendered the Justice Souter. Cоurt’s determination find that the Commonwealth
We “secondary represents effects” rationale Justice Souter’s fact, of Barnes out. In aside simply not borne “holding” Barnes by majority Court agreement from the protection, to some First Amendment nude is entitled of the Barnes Court majority point we can find no on which Thus, ex- although opinions we find that agreed. instructive, prove precedent Justices no clear pressed by the of Barnes on the issue of whether the Ordinance arises out judice passes matter sub First Amend- muster under the ment. that there is no United States
Having determined to our squarely point, on we turn precedent Court which itself to deter- independent own examination Ordinance suppression expres- it to the of free mine whether is related The stated that it City рlainly sion. Council Ordinance regulation adopting limiting for the a recent nude live increase City, adversely entertainment within the im- activity *10 health, pacts impact safety and threatens to on the public by providing and welfare to atmosphere an conducive vio- lence, harassment, intoxication, public prostitution, sexual spread sexually the transmitted diseases and other dele- terious effects. acknowledge
We that one of purposes the of the Ordi That, however, nance is to combat negative secondary effects. only is not its goal. Inextricably up bound with this stated purpose is an purpose directly unmentioned that on impacts the freedom of expression: purpose impact negative that is to ly on the erotic message the dance. We find that expressed position White eloquently dissenting most in his in opinion Barnes when he declared that
it cannot be that the statutory prohibition [said] is unrelated expressive to conduct. the Since State the permits dancers if perform they wear pasties G-strings to but forbids nude it dancing, precisely distinctive, is because of the expressive content of the dancing performances nude at in this case that apply issue the State seeks to the statutory prohibition. It only because nude performances may generate feelings emotions and of eroticism and sensu ality among spectators that the State to regulate seeks expressive activity, such apparently assumption on the creating such thoughts and ideas the minds of the specta may prostitution tors lead to degradation increased and the ideas, of women. But generating thoughts, and emotions is the essence of communication. 592, 2474, 111 501 U.S. at at S.Ct. 115 at L.Ed.2d 528
(White, dissenting). J. We analy- believe that Justice White’s directly applicable now, sis is to the situation before us stated promulgating for Ordinance inextricably linked with the content-based motivation to sup- press expressive nature of dancing. nude rationale in the United for our support find further
We
v.
County, Georgia
holding Forsyth
Court’s
States
Movement,
S.Ct.
Nationalist
ordinance
County,
county
In Forsyth
L.Ed.2d
The
parade permits.
for the issuance
imposed a fee
the fee was directed
setting
for
responsible
administrator
account,
possible
costs
among
things,
other
take into
127, 112
events.
Id. at
needed at certain
protection
police
will
109. “The fee assessed
120 L.Ed.2d at
S.Ct.
measure of the amount
administrator’s
on the
depend
on its
speech
based
to be created
hostility likely
views
with
express
unpopular
wishing
Those
content.
more for their
throwers,
pay
have to
example,
bottle
Since the Ordinance’s if the strict passes the Ordinance we must now determine Grace, at 75 461 at 103 S.Ct. scrutiny test. U.S. test, scrutiny In order to the strict pass L.Ed.2d at 744. that to establish the Ordinance Appellees is on burden compelling governmental accomplish drawn to narrowly
361 Schuster, interest. Simon Inc. N.Y. & v. Members State Bd., Crime 501, 509-510, Victims 112 U.S. S.Ct. 116 L.Ed.2d begin by noting
We our review this issue that scrutiny have not us Appellees presented analysis with strict of their part Establishing passes brief. that the Ordinance the strict scrutiny test is a to bear. Appellees burden Schuster, Simon & supra. Appellees’ failure to carry utter their point burden on this would be a to find sufficient reason scrutiny the strict test was met here.
Furthermore, our independent analysis own of this issue leads us to scrutiny conclude that the strict test cannot be satisfied. The most compelling governmental interest which could be articulated in connection is the with Ordinance in deterring beyond interest sex crimes. It cavil that curbing prostitution rape compelling crimes such as is a governmental interest.
Yet, that determination satisfies one half of the strict scrutiny test. It still must be established that the Ordinance is narrowly compelling tailored to meet this On interest. front, inescapable we come to the conclusion the Ordi- agree nance must fail. with We statement in White’s Barnes that there ways are several to combat these social ills without banning expressive activity dancing. of nude Jus- tice suggested White that “the State perhaps require could that, while performing, performers nude remain at all times a certain minimum distance from spectators, that nude enter- hours, tainment be limited certain or even that establish- ments providing such entertainment be dispersed throughout city.” 501 U.S. at S.Ct. *12 restrictions, L.Ed.2d at 529. These unlike the restrictions Ordinance, found the could be viewed as content-neutral time, restrictions on the place, and manner in which nude conducted, аnd, so, dancing could be if trigger would not the scrutiny strict test.
Furthermore, we highly also find it circuitous to prevent rape, prostitution, and other sex crimes requiring dancer a G-string to wear and before legal pasties in a establishment and that criminal stage. imposing on believe appearing We as those who commit sex crimes such civil sanctions on achieving way or would be far narrower of prostitution rape compelling governmental the interest. an places
Now that we have determined that Ordinance freedom Appellant’s expression, unconstitutional on burden that we Appellees’ may next claim sever we consider striking rather unconstitutional than the Ordinance portions rely upon entirety. position, Appellees’ In of their support its Sevеrability” § 1 Pa.C.S. 19258 and the “Construction and clause of the Ordinance.9 unconstitutional, we that an ordinance is
When determine if portions sever the unconstitutional “the remainder of we thereby....” 1 Pa.C.S. ... shall not be affected [Ordinance] Yet, may that specifically § 1925. we are directed we of an ordinance “the portions sever the unconstitutional where essentially are so provisions valid of the [Ordinance] with, void inseparably depend upon, connected and so [City it presumed cannot be provision application, remaining would have enacted the valid provisions Council] Id. one....” without void that this court “sever” the Ordinance
Appellees assert ‘expressive’ nudity by merely “severing] only necessary Appellees’ from the Brief 13. As there ordinance....” lаnguage separates non-expressive no the Ordinance which nudity, from nudity presume Appellees we expressive it into language would have this court draft such and insert the Ordinance. a position
Such
shows a fundamental misunderstand
ing
severing
portions
of the mechanics of
void
of a statute
("Act”).
Statutory
part
Section 1925
Construction Act
In
8.
ordinance,
construing
though
an
we follow the dictates
the Act even
applies
expressly applicable to
specifically
the Act
to statutes and is not
Adjustment
City
Zoning
local ordinances. Patricca v.
Bd.
Pittsburgh, 527
363 well as the constitutional separation powers. doctrine of of In severing ordinance, void portions of a statute or a court is empowered to merely existing language; judiciary strike given is no authority language to draft its own and insert it into the statute or ordinance.
Limitations on the to power sever statutes and ordi nances are consistent with the constitutional doctrine of the separation powers, a doctrine which has been at the heart of governmental our system since the 1776 Plan or Form of Government the Commonwealth or Pennsylvania. State for (No. Dauphin County Jury Grand Investigation Proceedings 2), 342, 352-353, 332 Pa. 2 A.2d 807 By this doctrine, branch, legislative branch, judicial and not the given power to promulgate legislation. The No. Federalist (James Madison). To aggregate to ourselves the to power legislation write would upset the delicate balance in our tripar system tite of government. We therefore decline Appellees’ invitation.10
Yet another option severing the Ordinance would 1(c) §§ be to remove and the provisions which concern the public bar to nudity. option We find this to be tenable. In severing portions Ordinance, those of the we would remove but one the four prohibitions. The other three forbidden activities11 are independent ban, of the public nudity and 1(c) §§ striking and 2 would no fashion render those other provisions inoperative. The other three prohibitions are thus “essentially so inseparably and connected with” the public nudity ban that we could conclude City that the Council would opted have not to 1(c) enact provisions §§ the valid without Commonwealth, Appellees' citation Dept. Educatiоn v. First School, (1977) 471 Pa. proposition A.2d 702 for the that we School, rewrite the unavailing. Ordinance is In First this court merely portions excised all giving of a statute which referred to finan schools, leaving cial aid to sectarian provisions gave all those financial aid portion to non-sectarian schools. No of First School violating separation powers endorsed this court by engaging legislative drafting legislation. function of intercourse; publicly 11. Those three engaging activities are: in sexual intercourse; publicly and, engaging in deviate publicly fondling sexual genitalia. supra. Footnote pursuant is appropriate thus find that severance and 2. We 1(c) §§ from the Ordinance. § 1 Pa.C.S. sever Court below reversed.12 The order Commonwealth *14 NEWMAN, J., in consideration or pаrticipate the did of this matter. decision
CASTILLE, J., in concurring opinion a which files ZAPPALA, J., joins.
CASTILLE, Justice, concurring. 1(c) 2 of majority the that Sections the agree I with However, a at issue be stricken. because ordinance must upheld has the Supreme of the States Court majority United a under the constitutionality virtually identical ordinance Constitution, to Amendment the Federal because First Court’s by Supreme is bound the United States this Court Constitution, disagree I must of the Federal interpretations the of the ordi- majority’s provisions that with the conclusion First to the Federal nance at issue fail under the Amendment Instead, that of the provisions I believe the Constitution. I, § Article at issue must stricken under ordinance here be I concur Pennsylvania Accordingly, of the Constitution. in majority in reached the the result this matter. lies at the States Court case which Supreme
The United Theatre, Inc., v. Glen is Barnes matter crux of this Barnes, In the 111 S.Ct. 115 L.Ed.2d was, States Court reviewed a statute United states, majority similar” the “strikingly as the herein judice.1 sub The critical issue in Barnes ordinance Appellant’s we have the Ordinance violates 12. As determined Constitution, expression guaranteed the United States freedom of as provision comparable is no need for us to determine whether the there I, Pennsylvania § Article Constitution is also violated. in found Furthermore, Appellant's we address either claim that need not overbroad, unconstitutionally Appellees' or claim that Ordinance challenge. Appellant standing lacks to raise this overbreadth provided: in 1. The ordinance Barnes (a) place: person knowingly intentionally, public A in Sec. 1. who intercourse; (1) engages sexual statute, purpose characterization of the for if the a statute is the suppression protected expres- sion, then under prevailing precedent, First Amendment scrutiny applies. strict test matter,
According majority in the instant there was “no on which point majority of the Barnes agreed,” Court from agreeing aside expressive nude conduct for First purposes. Maj. Thus, Amendment atOp. majority gleans that Barnes is not binding precedent on the issue of whether the ordinance sub judice can be characterized relating to the suppression of free expression under the First Finding Amendment. no such precedent binding majority proceeds to determine that the ordinance at issue herе is related to suppression of free expression, and further finds that the pass ordinance fails to constitutional muster under the strict scrutiny test. I believe that majority herein strains to find discord Barnes where none In doing, exists. so the majority circumvents binding United *15 States precedent. Court
My disagreement with the majority centers on the fact that Justices, five majority, thus a uphold voted to the ordi- nance in Barnes on the basis that the ordinance at in issue Barnes could not be characterized as relating to the suppres- sion of free expression for purposes of the First Amendment. five-justice Therefore, a majority declined to apply the strict scrutiny test.
The plurality opinion, authored Chief Justice Rehnquist joined by O’Connor, Justices Kennedy and stated: “... the public indecency statute furthers a substantial government (2) conduct; engages in deviate sexual (3) appears nudity; in a state of (4) genitals fondles the person; of another public indecency, commits a Class A misdemeanor. (b) ‘Nudity’ showing means the geni- of the human male or female
tals, pubic area or fully opaque covering, buttocks with less than a the showing of the fully female breast with opaque less than a covering of any part nipple, showing or the genitals of the covered male in a discernibly turgid state. The ordinance at judice excerpted issue in the matter sub in footnote Majority Opinion. two of the morality. This interest
interest order and protecting suppression expression.” unrelated to the of free added). (emphasis at 569 supra, U.S. concurrence, the agreed
In a Justice Souter with separate aimed at majority suppression that the statute was not the strict apply and therefore also declined to expression, free (Souter, J., concurring) scrutiny. Id. at S.Ct. (“the is unrelated to the suppression interest [state’s] free added). simply disa- expression”) (emphasis Justice Souter statute was greed majority purpose with the to what the to be serving, believing purpose prevention fact activity, criminal rather assaults and other prostitution, sexual majority. interest asserted general morality than the Id. concurrence,
Finally, separate Scalia in another Justice purpose with Souter that the agreed plurality and Justice free suppression protected of the statute was not did he expression. separately Justice Scalia wrote because “public nudity” proscribed by not the statute believe that it at all since any protection was entitled to First Amendment behavior which would fall within “expressive” However, protective First Amendment. ambit agreed plurality regarding underlying Scalia with of the statute: purpose statute, as both text and the
The of the Indiana its demonstrate, tradi- manner of is to enforce the enforcement their people expose tional moral should not belief parts indiscriminately, regardless of whether those private *16 so, that see are disedified. Since the dissent who them that, edi- positing thoroughly has no basis where must repression are be present, purpose adults of fied communication. (Scalia, J., eoncurring)(emphasis
Id. S.Ct. added). Thus, not endorse entirely whilе Justice Scalia did he “not think the plurality’s reasoning, plurality’s also did greatly conclusions differ from my own.” Id. at S.Ct. 2456.2
Thus, the premise basic upon which five Justices of the United States agreed Court is that the of a virtually statute identical to the one at issue here cannot be characterized as the suppression protected expression.3 Accordingly, none of these five Justices believed that the strict scrutiny test was appropriate. majority The herein overlooks fact, this deems the Barnes Court “hopelessly fragmented” binding discerns no common ground in Barnes. Conse quently, the majority adopts position of the Barnes dissen ters, finds the ordinance at issue a content-based ordinance which is aimed at the suppression protected expression and applies the strict scrutiny test. By applying the First Amend ment scrutiny strict test in spite of the majority here binding defies precedent. 1(c) I
Although believe that Sections and 2 of the Ordinance at issue here do not fail under the First light Amendment in Barnes, I nevertheless concur in the result by reached majority since I provisions believe that those must be stricken I, § under Article 7 of Pennsylvania Constitution, provides: “... The free communication of thoughts opin- ions is one of the man, invaluable rights of and every citizen may freely speak, write and print any subject, on being responsible for the liberty abuse ... ”. Pa. Const. Art. § 7. This Court has repeatedly I, determined that Article 1. § 7 affords greater protection to speech and conduct Commonwealth than its counterpart, does federal the First Notwithstanding Justice Scаlia’s belief that his own concurrence did depart significantly plurality’s position, from majority of this confidently Court asserts that Justice Scalia arrived at his conclusion "radically a different plurality. route” than that taken the Barnes Regardless of whether Justice Scalia’s interpreted concurrence is to be clearly in accordance with interpreted Justice Scalia’s stated intent or it, majority important as the herein point characterizes is that Scalia, Souter, plurality like the clearly and Justice did not believe that suppression protected the statute was aimed at the expression. majority acknowledges binding precedent 3. The can emanate from fragmented Court agreement when that Court can be said to be in on given сoncept. Maj. Slip Op. See at 278. *17 368 Theatres, Dana, Inc. v.
Amendment. Goldman See William denied, 59, 897, 61, 82 83, 87, Pa. A.2d cert. 405 173 Mazzocone, Pa. (1961); v. 482 Willing 93 S.Ct. 7 L.Ed.2d Tate, 377, 383, (1978); v. Commonwealth 393 A.2d 1158 (1981); Penn 158, 174, Pa. A.2d 1390 495 432 Western Ins., 512 v. Gen. sylvania Socialist Workers Connecticut Life (1986); Adjustment A.2d Insurance Pa. Commissioner, 518 Pa. 542 A.2d Bureau v. Insurance authored White I believe that the dissent and it for adopt Barnes is that this Court should persuasive I, Pennsylvania § 7 of Article the purposes interpreting of out in pointed As Justice White Constitution. plurality—that purpose of the Barnes served position morals order protect public the ordinance at issue to and errone- expression—is patently rather free suppress than to ous. Justice wrote: White forbidding appear parks,
The to nude people purpose beaches, dog public places protect hot stands and like is to not possibly But that could be the others from offense. dancing nude theatres bar- purpose preventing exclusively consenting adults rooms since the viewers are The pay to see these dances. money who from protect in these contexts is to the viewers proscription harmful that nude message what the believes State dancing communicates. case, it that the statutory prohibi-
This be being cannot expressive tion is conduct. the state unrelated Since they if wear and G- permits perform pasties the dancers strings dancing, precisely nude it is but forbids because distinctive, expressive dancing per- content nude case apply formances in this that the State seeks to It because nude statutory prohibition. perfоrmances may generate feelings emotions and of eroti- sensuality cism among spectators State expressive activity, seeks to such on the regulate apparently assumption creating such or emphasizing thoughts lead to increased the spectators ideas in the minds of But generating degradation and the women. prostitution ideas, of communica- and emotions is the essence thoughts, dancing performances of nude nudity tion. The element *18 of independent “conduct” as mere pigeonholed cannot be component of the dance. any expressive (White, J., 590-592, Barnes, 111 S.Ct. 501 U.S. at supra, dissenting). position articulates the forcefully dissent
Justice White’s
adopt
purposes
for
I
that this Court should
believe
I,
Pennsylvania
§ 7 of the
Consti
our
of Article
interpretation
ordinance,
plurality
If the
of the
as
purpose
tution.
believed,
to “enforce the traditional
merely
was
Justice Scalia
private parts
not
their
expose
moral belief that
should
people
not
would
indiscriminately,”4
presumably
then the ordinance
to
indiscriminately
private parts
to
their
people
display
allow
friends,
relatives,
they
and others whom
care to
innumerable
does not prohibit
invite into their homes. Since the ordinance
behavior,
illusory.
justification
the moral
must be deemed
such
ordinance,
applied
appellant
as
to
The true
situated,
in appel
the customers
similarly
prevent
others
is
to the
being exposed
from
lant’s and like establishments
aspects
dancing.
communicative
of nude
One
distinctive
as the drafters of
justification,
call this a moral
insofar
might
their moral condemnation
expressing
the ordinance seem to be
are
of the Commonwealth who
attracted
of those citizens
communication,
cannot
form of
but lawmakers
distinct
to attack a form of
morality specifically
the sword of
invoke
form
particular
The fact that this
protected expression.
high
not
to the level of a
art
expression may
ascend
protected
categorically
pro-
form irrelevant.5 Lawmakers
J.,
(Scalia,
concurring).
Accordingly, purposes Constitution, scrutiny nia I believe that the strict test majority’s in this case. I concur appropriately applied test, scrutiny as well the remainder application the strict majority’s disposition of this case. ZAPPALA, J., joins this concurring opinion.
719A.2d 284 Pennsylvania, Appellee, COMMONWEALTH
v. *19 COUNTERMAN, Appellant. Dennis Pennsylvania. Court of 28, Argued April 1998. Decided Oct. 1998. Reargument Denied Dec. (as critics), quality viewed it from differ substance person dance viewed who ... wants some ‘entertainment’ with Inn, Frank, rye.”
his beer or shot of
Salem
Inc. v.
501 F.2d
21 n. 3
Cir.1974),
(2d
Inn, Inc.,
part
d in
sub nom. Doran v. Salem
aff
'
95 S.Ct.