OCTOBER TERM, 1999
Syllabus
CITY OF ERIE ET AL.
v. PAP'S A. M., TDBA "KANDYLAND"
CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA
No.98-1161. Argued November 10, 1999-Decided March 29, 2000
Erie, Pennsylvania, enacted an ordinance making it a summary
offense to knowingly or intentionally appear in public in a "state
of nudity." Respondent Pap's A. M. (hereinafter Pap's), a
Pennsylvania corporation, operated "Kandyland," an Erie
establishment featuring totally nude erotic dancing by women. To
comply with the ordinance, these dancers had to wear, at a minimum,
"pasties" and a "G-string." Pap's filed suit against Erie and city
officials, seeking declaratory relief and a permanent injunction
against the ordinance's enforcement. The Court of Common Pleas
struck down the ordinance as unconstitutional, but the Commonwealth
Court reversed. The Pennsylvania Supreme Court in turn reversed,
finding that the ordinance's public nudity sections violated Pap's
right to freedom of expression as protected by the First and
Fourteenth Amendments. The Pennsylvania court held that nude
dancing is expressive conduct entitled to some quantum of
protection under the First Amendment, a view that the court noted
was endorsed by eight Members of this Court in
Barnes v.
Glen Theatre, Inc., 501 U. S. 560. The Pennsylvania court
explained that, although one stated purpose of the ordinance was to
combat negative secondary effects, there was also an unmentioned
purpose to "impact negatively on the erotic message of the dance."
Accordingly, the Pennsylvania court concluded that the ordinance
was related to the suppression of expression. Because the ordinance
was not content neutral, it was subject to strict scrutiny. The
court held that the ordinance failed the narrow tailoring
requirement of strict scrutiny. After this Court granted
certiorari, Pap's filed a motion to dismiss the case as moot,
noting that Kandyland no longer operated as a nude dancing club,
and that Pap's did not operate such a club at any other location.
This Court denied the motion.
Held: The judgment is reversed, and the case is remanded.
553 Pa. 348, 719 A. 2d 273, reversed and remanded.
JUSTICE O'CONNOR delivered the opinion of the Court with respect
to Parts I and II, concluding that the case is not moot. A case is
moot when the issues presented are no longer "live" or the parties
lack a legally cognizable interest in the outcome.
County of Los
Angeles v.
Davis, 440 U. S. 625, 631.
Simply closing Kandyland is not sufficient to moot the case because
Pap's is still incorporated under Pennsylvania
278
Syllabus
law, and could again decide to operate a nude dancing
establishment in Erie. Moreover, Pap's failed, despite its
obligation to the Court, to mention the potential mootness issue in
its brief in opposition, which was filed after Kandyland was closed
and the property sold. See
Board of License Comm'rs of
Tiverton v.
Pastore, 469 U. S. 238, 240. In
any event, this is not a run of the mill voluntary cessation case.
Here it is the plaintiff who, having prevailed below, seeks to have
the case declared moot. And it is the defendant city that seeks to
invoke the federal judicial power to obtain this Court's review of
the decision. Cf.
ASARCO Inc. v.
Kadish, 490 U. S. 605, 617-618.
The city has an ongoing injury because it is barred from enforcing
the ordinance's public nudity provisions. If the ordinance is found
constitutional, then Erie can enforce it, and the availability of
such relief is sufficient to prevent the case from being moot. See
Church of Scientology of Cal. v.
United States,
506 U. S. 9, 13.
And Pap's still has a concrete stake in the case's outcome because,
to the extent it has an interest in resuming operations, it has an
interest in preserving the judgment below. This Court's interest in
preventing litigants from attempting to manipulate its jurisdiction
to insulate a favorable decision from review further counsels
against a finding of mootness. See,
e. g., United States v.
W T. Grant Co., 345 U. S. 629, 632. Pp. 287-289.
JUSTICE O'CONNOR, joined by THE CHIEF JUSTICE, JUSTICE KENNEDY,
and JUSTICE BREYER, concluded in Parts III and IV that:
1. Government restrictions on public nudity such as Erie's
ordinance should be evaluated under the framework set forth in
United States v.
O'Brien, 391 U. S. 367, for
content-neutral restrictions on symbolic speech. Although being "in
a state of nudity" is not an inherently expressive condition, nude
dancing of the type at issue here is expressive conduct that falls
within the outer ambit of the First Amendment's protection. See,
e. g., Barnes, supra, at 565-566 (plurality opinion). What
level of scrutiny applies is determined by whether the ordinance is
related to the suppression of expression.
E. g., Texas v.
Johnson, 491 U. S. 397,403. If the governmental purpose in
enacting the ordinance is unrelated to such suppression, the
ordinance need only satisfy the "less stringent," intermediate
O'Brien standard.
E. g., Johnson, supra, at 403. If
the governmental interest is related to the expression's content,
however, the ordinance falls outside
O'Brien and must be
justified under the more demanding, strict scrutiny standard.
Johnson, supra, at 403. An almost identical public nudity
ban was held not to violate the First Amendment in
Barnes,
although no five Members of the Court agreed on a single rationale
for that conclusion. The ordinance here, like the statute in
Barnes, is on its face a general prohibition on public
nudity. By its terms, it regulates conduct alone. It does not
target
279
nudity that contains an erotic message; rather, it bans all
public nudity, regardless of whether that nudity is accompanied by
expressive activity. Although Pap's contends that the ordinance is
related to the suppression of expression because its preamble
suggests that its actual purpose is to prohibit erotic dancing of
the type performed at Kandyland, that is not how the Pennsylvania
Supreme Court interpreted that language. Rather, the Pennsylvania
Supreme Court construed the preamble to mean that one purpose of
the ordinance was to combat negative secondary effects. That is,
the ordinance is aimed at combating crime and other negative
secondary effects caused by the presence of adult entertainment
establishments like Kandyland, and not at suppressing the erotic
message conveyed by this type of nude dancing. See 391 U. S., at
382; see also
Boos v.
Barry, 485 U. S. 312, 321. The
Pennsylvania Supreme Court's ultimate conclusion that the ordinance
was nevertheless content based relied on Justice White's position
in dissent in
Barnes that a ban of this type
necessarily has the purpose of suppressing the erotic
message of the dance. That view was rejected by a majority of the
Court in
Barnes, and is here rejected again. Pap's argument
that the ordinance is "aimed" at suppressing expression through a
ban on nude dancing is really an argument that Erie also had an
illicit motive in enacting the ordinance. However, this Court will
not strike down an otherwise constitutional statute on the basis of
an alleged illicit motive.
O'Brien, supra, at 382-383. Even
if Erie's public nudity ban has some minimal effect on the erotic
message by muting that portion of the expression that occurs when
the last stitch is dropped, the dancers at Kandyland and other such
establishments are free to perform wearing pasties and G-strings.
Any effect on the overall expression is therefore
de
minimis. If States are to be able to regulate secondary
effects, then such
de minimis intrusions on expression
cannot be sufficient to render the ordinance content based. See,
e. g., Clark v.
Community for Creative Non-Violence,
468 U. S. 288,
299. Thus, Erie's ordinance is valid if it satisfies the
O'Brien test. Pp. 289-296.
2. Erie's ordinance satisfies
O'Brien's four-factor test.
First, the ordinance is within Erie's constitutional power to enact
because the city's efforts to protect public health and safety are
clearly within its police powers. Second, the ordinance furthers
the important government interests of regulating conduct through a
public nudity ban and of combating the harmful secondary effects
associated with nude dancing. In terms of demonstrating that such
secondary effects pose a threat, the city need not conduct new
studies or produce evidence independent of that already generated
by other cities, so long as the evidence relied on is reasonably
believed to be relevant to the problem addressed.
Renton v.
Playtime Theatres, Inc., 475 U. S. 41, 51-52. Erie
could reasonably
280
Syllabus
rely on the evidentiary foundation set forth in
Renton
and
Young v.
American Mini Theatres, Inc., 427 U. S. 50, to the
effect that secondary effects are caused by the presence of even
one adult entertainment establishment in a given neighborhood. See
Renton, supra, at 51-52. In fact, Erie expressly relied on
Barnes and its discussion of secondary effects, including
its reference to
Renton and
American Mini Theatres.
The evidentiary standard described in
Renton controls here,
and Erie meets that standard. In any event, the ordinance's
preamble also relies on the city council's express findings that
"certain lewd, immoral activities carried on in public places for
profit are highly detrimental to the public health, safety and
welfare .... " The council members, familiar with commercial
downtown Erie, are the individuals who would likely have had
firsthand knowledge of what took place at, and around, nude dancing
establishments there, and can make particularized, expert judgments
about the resulting harmful secondary effects. Cf.,
e.
g., FCC v.
National Citizens Comm. for
Broadcasting, 436
U. S. 775. The fact that this sort of leeway is appropriate in
this case, which involves a content-neutral restriction that
regulates conduct, says nothing whatsoever about its
appropriateness in a case involving actual regulation of First
Amendment expression. Also, although requiring dancers to wear
pasties and G-strings may not greatly reduce these secondary
effects,
O'Brien requires only that the regulation further
the interest in combating such effects. The ordinance also
satisfies
O'Brien's third factor, that the government
interest is unrelated to the suppression of free expression, as
discussed
supra. The fourth
O'Brien factor-that the
restriction is no greater than is essential to the furtherance of
the government interest-is satisfied as well. The ordinance
regulates conduct, and any incidental impact on the expressive
element of nude dancing is
de minimis. The pasties and
G-string requirement is a minimal restriction in furtherance of the
asserted government interests, and the restriction leaves ample
capacity to convey the dancer's erotic message. See,
e. g.,
Barnes, 501 U. S., at 572. Pp. 296-302.
JUSTICE SCALIA, joined by JUSTICE THOMAS, agreed that the
Pennsylvania Supreme Court's decision must be reversed, but
disagreed with the mode of analysis that should be applied. Erie
self-consciously modeled its ordinance on the public nudity statute
upheld in
Barnes v.
Glen Theatre, Inc., 501 U. S. 560,
calculating (one would have supposed reasonably) that the
Pennsylvania courts would consider themselves bound by this Court's
judgment on a question of federal constitutional law. That statute
was constitutional not because it survived some lower level of
First Amendment scrutiny, but because, as a general law regulating
conduct and not specifically directed at expression, it was not
subject to First Amendment scrutiny at all.
Id., at 572
(SCALIA, J., concurring in
281
judgment). Erie's ordinance, too, by its terms prohibits not
merely nude dancing, but the act-irrespective of whether it is
engaged in for expressive purposes-of going nude in public. The
facts that the preamble explains the ordinance's purpose, in part,
as limiting a recent increase in nude live entertainment, that city
councilmembers in supporting the ordinance commented to that
effect, and that the ordinance includes in the definition of nudity
the exposure of devices simulating that condition, neither make the
law any less general in its reach nor demonstrate that what the
municipal authorities
really find objectionable is
expression rather than public nakedness. That the city made no
effort to enforce the ordinance against a production of Equus
involving nudity that was being staged in Erie at the time the
ordinance became effective does not render the ordinance
discriminatory on its face. The assertion of the city's counsel in
the trial court that the ordinance would not cover theatrical
productions to the extent their expressive activity rose to a
higher level of protected expression simply meant that the
ordinance would not be enforceable against such productions if the
Constitution forbade it. That limitation does not cause the
ordinance to be not generally applicable, in the relevant sense of
being
targeted against expressive conduct. Moreover, even if
it could be concluded that Erie specifically singled out the
activity of nude dancing, the ordinance still would not violate the
First Amendment unless it could be proved (as on this record it
could not) that it was the communicative character of nude dancing
that prompted the ban. See
id., at 577. There is no need to
identify "secondary effects" associated with nude dancing that Erie
could properly seek to eliminate. The traditional power of
government to foster good morals, and the acceptability of the
traditional judgment that nude public dancing
itself is
immoral, have not been repealed by the First Amendment. Pp.
307-310.
O'CONNOR, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I and II, in which
REHNQUIST, C. J., and KENNEDY, SOUTER, and BREYER, JJ., joined, and
an opinion with respect to Parts III and IV, in which REHNQUIST, C.
J., and KENNEDY and BREYER, JJ., joined. SCALIA, J., filed an
opinion concurring in the judgment, in which THOMAS, J., joined,
post, p. 302. SOUTER, J., filed an opinion concurring in
part and dissenting in part,
post, p. 310. STEVENS, J.,
filed a dissenting opinion, in which GINSBURG, J., joined,
post, p. 317.
Gregory A. Karle argued the cause for petitioners. With
him on the briefs were
Gerald J. Villella and
Valerie J. Sprenkle.
282
John H. Weston argued the cause for respondent. With him on the
briefs were G. Randall Garrou, Philip B. Friedman, and Cathy
Crosson.
*
JUSTICE O'CONNOR announced the judgment of the Court and
delivered the opinion of the Court with respect to Parts I and II,
and an opinion with respect to Parts III and IV; in which THE CHIEF
JUSTICE, JUSTICE KENNEDY, and JUSTICE BREYER join.
The city of Erie, Pennsylvania, enacted an ordinance banning
public nudity. Respondent Pap's A. M. (hereinafter
*Briefs of
amici curiae urging reversal were filed for
Brevard County, Florida, by
Scott L. Knox; for the American
Liberties Institute et al. by
Frederick H. Nelson, Lonnie N.
Groot, and
Anthony A. Garganese; for Erie County
Citizen's Coalition Against Violent Pornography by
Keith O.
Barrows; for Morality in Media, Inc., et al. by
Paul
J. M cGeady, Bruce A. Taylor, and
Janet M.
LaRue; and for the National Family Legal Foundation by
Len
L. Munsil.
Briefs of
amici curiae urging affirmance were filed for
the American Association for Nude Recreation by
Robert T.
Page; for the American Civil Liberties Union et al. by
Steven R. Shapiro, Witold J. Walczak, Bruce
J. Ennis, Jr., and
Paul M. Smith; for Deja Vu
Consulting, Inc., et al. by
Bradley J. Shafer;
for Feminists for Free Expression by
Mary D. Dorman; for the
First Amendment Lawyers Association by
Randall D. B. Tigue,
Steven H. Swander, and
Richard L. Wilson; for the Thomas
Jefferson Center for Protection of Free Expression et al. by
J. Joshua Wheeler; and for Bill Conte, on behalf of
The Dante Project: Inferno et al. by
Jack R.
Burns.
Briefs of
amici curiae were filed for the State of Kansas
et al. by
Carla J. Stovall, Attorney General
of Kansas,
Stephen R. McAllister, State Solicitor,
Betty
D. Montgomery, Attorney General of Ohio,
Edward B.
Foley, State Solicitor, and
Elise Porter, Assistant
Solicitor, and by the Attorneys General for their respective States
as follows:
Alan G.
Lance of Idaho,
Richard P.
Ieyoub of Louisiana,
Jennifer M. Granholm of Michigan,
Mike Moore of Mississippi,
Joseph P. Mazurek of
Montana,
Don Stenberg of Nebraska,
D. Michael Fisher
of Pennsylvania,
Charles M. Condon of South Carolina,
Paul G.
Summers of Tennessee,
John Cornyn of
Texas,
Jan Graham of Utah, and
Mark L. Earley of
Virginia; and for Orange County, Florida, by
Joel D.
Prinsell.
283
Pap's), which operated a nude dancing establishment in Erie,
challenged the constitutionality of the ordinance and sought a
permanent injunction against its enforcement. The Pennsylvania
Supreme Court, although noting that this Court in
Barnes v.
Glen Theatre, Inc., 501 U. S. 560 (1991), had
upheld an Indiana ordinance that was "strikingly similar" to
Erie's, found that the public nudity sections of the ordinance
violated respondent's right to freedom of expression under the
United States Constitution. 553 Pa. 348, 356, 719 A. 2d 273, 277
(1998). This case raises the question whether the Pennsylvania
Supreme Court properly evaluated the ordinance's constitutionality
under the First Amendment. We hold that Erie's ordinance is a
content-neutral regulation that satisfies the four-part test of
United States v.
O'Brien, 391 U. S. 367 (1968).
Accordingly, we reverse the decision of the Pennsylvania Supreme
Court and remand for the consideration of any remaining issues.
I
On September 28, 1994, the city council for the city of Erie,
Pennsylvania, enacted Ordinance 75-1994, a public indecency
ordinance that makes it a summary offense to knowingly or
intentionally appear in public in a "state of nudity."*
*Ordinance 75-1994, codified as Article 711 of the Codified
Ordinances
of the city of Erie, provides in relevant part:
"1. A person who knowingly or intentionally, in a public place:
"a. engages in sexual intercourse
"b. engages in deviate sexual intercourse as defined by the
Pennsylvania Crimes Code
"c. appears in a state of nudity, or
"d. fondles the genitals of himself, herself or another person
commits Public Indecency, a Summary Offense.
"2. "Nudity" means the showing of the human male or female
genital
[sic], pubic area or buttocks with less than a fully
opaque covering; the showing of the female breast with less than a
fully opaque covering of any part of the nipple; the exposure of
any device, costume, or covering which gives the appearance of or
simulates the genitals, pubic hair, natal cleft,
284
Respondent Pap's, a Pennsylvania corporation, operated an
establishment in Erie known as "Kandyland" that featured totally
nude erotic dancing performed by women. To comply with the
ordinance, these dancers must wear, at a minimum, "pasties" and a
"G-string." On October 14, 1994, two days after the ordinance went
into effect, Pap's filed a complaint against the city of Erie, the
mayor of the city, and members of the city council, seeking
declaratory relief and a permanent injunction against the
enforcement of the ordinance.
The Court of Common Pleas of Erie County granted the permanent
injunction and struck down the ordinance as unconstitutional. Civ.
No. 60059-1994 (Jan. 18, 1995), Pet. for Cert. 40a. On cross
appeals, the Commonwealth Court reversed the trial court's order.
674 A. 2d 338 (1996).
The Pennsylvania Supreme Court granted review and reversed,
concluding that the public nudity provisions of the ordinance
violated respondent's rights to freedom of expression as protected
by the First and Fourteenth Amendments. 553 Pa. 348, 719 A. 2d 273
(1998). The Pennsylvania court first inquired whether nude dancing
constitutes expressive conduct that is within the protection of the
First Amendment. The court noted that the act of being nude, in and
of
perineum anal region or pubic hair region; or the exposure of
any device worn as a cover over the nipples and/or areola of the
female breast, which device simulates and gives the realistic
appearance of nipples and/or areola.
"3. "Public Place" includes all outdoor places owned by or open
to the general public, and all buildings and enclosed places owned
by or open to the general public, including such places of
entertainment, taverns, restaurants, clubs, theaters, dance halls,
banquet halls, party rooms or halls limited to specific members,
restricted to adults or to patrons invited to attend, whether or
not an admission charge is levied.
"4. The prohibition set forth in subsection l(c) shall not apply
to: "a. Any child under ten (10) years of age; or
"b. Any individual exposing a breast in the process of
breastfeeding an infant under two (2) years of age."
285
itself, is not entitled to First Amendment protection because it
conveys no message.
Id., at 354, 719 A. 2d, at 276. Nude
dancing, however, is expressive conduct that is entitled to some
quantum of protection under the First Amendment, a view that the
Pennsylvania Supreme Court noted was endorsed by eight Members of
this Court in
Barnes. 553 Pa., at 354, 719 A. 2d, at
276.
The Pennsylvania court next inquired whether the government
interest in enacting the ordinance was content neutral, explaining
that regulations that are unrelated to the suppression of
expression are not subject to strict scrutiny but to the less
stringent standard of
United States v.
O'Brien,
supra, at 377. To answer the question whether the ordinance is
content based, the court turned to our decision in
Barnes.
553 Pa., at 355-356, 719 A. 2d, at 277. Although the Pennsylvania
court noted that the Indiana statute at issue in
Barnes "is
strikingly similar to the Ordinance we are examining," it concluded
that "[u]nfortunately for our purposes, the
Barnes Court
splintered and produced four separate, non-harmonious opinions."
553 Pa., at 356, 719 A. 2d, at 277. After canvassing these separate
opinions, the Pennsylvania court concluded that, although it is
permissible to find precedential effect in a fragmented decision,
to do so a majority of the Court must have been in agreement on the
concept that is deemed to be the holding. See
Marks v.
United States, 430 U. S. 188 (1977). The
Pennsylvania court noted that "aside from the agreement by a
majority of the
Barnes Court that nude dancing is entitled
to some First Amendment protection, we can find no point on which a
majority of the
Barnes Court agreed." 553 Pa., at 358, 719
A. 2d, at 278. Accordingly, the court concluded that "no clear
precedent arises out of
Barnes on the issue of whether the
[Erie] ordinance ... passes muster under the First Amendment."
Ibid.
Having determined that there was no United States Supreme Court
precedent on point, the Pennsylvania court
286
conducted an independent examination of the ordinance to
ascertain whether it was related to the suppression of expression.
The court concluded that although one of the purposes of the
ordinance was to combat negative secondary effects, "[i]nextricably
bound up with this stated purpose is an unmentioned purpose ... to
impact negatively on the erotic message of the dance."
Id.,
at 359, 719 A. 2d, at 279. As such, the court determined the
ordinance was content based and subject to strict scrutiny. The
ordinance failed the narrow tailoring requirement of strict
scrutiny because the court found that imposing criminal and civil
sanctions on those who commit sex crimes would be a far narrower
means of combating secondary effects than the requirement that
dancers wear pasties and G-strings.
Id., at 361-362, 719 A.
2d, at 280.
Concluding that the ordinance unconstitutionally burdened
respondent's expressive conduct, the Pennsylvania court then
determined that, under Pennsylvania law, the public nudity
provisions of the ordinance could be severed rather than striking
the ordinance in its entirety. Accordingly, the court severed §§
l(c) and 2 from the ordinance and reversed the order of the
Commonwealth Court.
Id., at 363-364, 719 A. 2d, at 281.
Because the court determined that the public nudity provisions of
the ordinance violated Pap's right to freedom of expression under
the United States Constitution, it did not address the
constitutionality of the ordinance under the Pennsylvania
Constitution or the claim that the ordinance is unconstitutionally
overbroad.
Ibid.
In a separate concurrence, two justices of the Pennsylvania
court noted that, because this Court upheld a virtually identical
statute in
Barnes, the ordinance should have been upheld
under the United States Constitution. 553 Pa., at 364, 719 A. 2d,
at 281. They reached the same result as the majority, however,
because they would have held that the public nudity sections of the
ordinance violate the Pennsylvania Constitution.
Id., at
370, 719 A. 2d, at 284.
287
The city of Erie petitioned for a writ of certiorari, which we
granted. 526 U. S. 1111 (1999). Shortly thereafter, Pap's filed a
motion to dismiss the case as moot, noting that Kandyland was no
longer operating as a nude dancing club, and Pap's was not
operating a nude dancing club at any other location. Respondent's
Motion to Dismiss as Moot 1. We denied the motion. 527 U. S. 1034
(1999).
II
As a preliminary matter, we must address the justiciability
question. "'[A] case is moot when the issues presented are no
longer "live" or the parties lack a legally cognizable interest in
the outcome.'"
County of Los Angeles v.
Davis,
440 U. S. 625,
631 (1979) (quoting
Powell v.
McCormack, 395 U. S.
486, 496 (1969)). The underlying concern is that, when the
challenged conduct ceases such that" 'there is no reasonable
expectation that the wrong will be repeated,'"
United States
v.
W T. Grant Co., 345 U. S. 629, 633
(1953), then it becomes impossible for the court to grant" 'any
effectual relief whatever' to [the] prevailing party,"
Church of
Scientology of Cal. v.
United States, 506 U. S. 9, 12 (1992)
(quoting
Mills v.
Green, 159 U. S. 651, 653
(1895)). In that case, any opinion as to the legality of the
challenged action would be advisory.
Here, Pap's submitted an affidavit stating that it had "ceased
to operate a nude dancing establishment in Erie." Status Report Re
Potential Issue of Mootness 1 (Sept. 8, 1999). Pap's asserts that
the case is therefore moot because "[t]he outcome of this case will
have no effect upon Respondent." Respondent's Motion to Dismiss as
Moot 1. Simply closing Kandyland is not sufficient to render this
case moot, however. Pap's is still incorporated under Pennsylvania
law, and it could again decide to operate a nude dancing
establishment in Erie. See Petitioner's Brief in Opposition to
Motion to Dismiss 3. JUSTICE SCALIA differs with our assessment as
to the likelihood that Pap's may resume its nude dancing
288
operation. Several Members of this Court can attest, however,
that the "advanced age" of Pap's owner (72) does not make it
"absolutely clear" that a life of quiet retirement is his only
reasonable expectation. Cf.
Friends of Earth, Inc. v.
Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167 (2000).
Moreover, our appraisal of Pap's affidavit is influenced by Pap's
failure, despite its obligation to the Court, to mention a word
about the potential mootness issue in its brief in opposition to
the petition for writ of certiorari, which was filed in April 1999,
even though, as JUSTICE SCALIA points out, Kandyland was closed and
that property sold in 1998. See
Board of License Comm'rs of
Tiverton v.
Pastore, 469 U. S. 238, 240 (1985)
(per curiam). Pap's only raised the issue after this Court
granted certiorari.
In any event, this is not a run of the mill voluntary cessation
case. Here it is the plaintiff who, having prevailed below, now
seeks to have the case declared moot. And it is the city of Erie
that seeks to invoke the federal judicial power to obtain this
Court's review of the Pennsylvania Supreme Court decision. Cf.
ASARCO Inc. v.
Kadish, 490 U. S. 605, 617-618 (1989).
The city has an ongoing injury because it is barred from enforcing
the public nudity provisions of its ordinance. If the challenged
ordinance is found constitutional, then Erie can enforce it, and
the availability of such relief is sufficient to prevent the case
from being moot. See
Church of Scientology of Cal. v.
United States, supra, at 13. And Pap's still has a concrete
stake in the outcome of this case because, to the extent Pap's has
an interest in resuming operations, it has an interest in
preserving the judgment of the Pennsylvania Supreme Court. Our
interest in preventing litigants from attempting to manipulate the
Court's jurisdiction to insulate a favorable decision from review
further counsels against a finding of mootness here. See
United
States v.
W T. Grant Co., supra, at 632; cf.
Arizonans for Official English v.
Arizona, 520 U. S. 43,
289
74 (1997). Although the issue is close, we conclude that the
case is not moot, and we turn to the merits.
III
Being "in a state of nudity" is not an inherently expressive
condition. As we explained in
Barnes, however, nude dancing
of the type at issue here is expressive conduct, although we think
that it falls only within the outer ambit of the First Amendment's
protection. See
Barnes v.
Glen Theatre, Inc., 501 U.
S., at 565-566 (plurality opinion);
Schad v.
Mount
Ephraim, 452 U. S.
61, 66 (1981).
To determine what level of scrutiny applies to the ordinance at
issue here, we must decide "whether the State's regulation is
related to the suppression of expression."
Texas v.
Johnson, 491
U. S. 397, 403 (1989); see also
United States v.
O'Brien, 391 U. S., at 377. If the governmental purpose in
enacting the regulation is unrelated to the suppression of
expression, then the regulation need only satisfy the "less
stringent" standard from
O'Brien for evaluating restrictions
on symbolic speech.
Texas v.
Johnson, supra, at 403;
United States v.
O'Brien, supra, at 377. If the
government interest is related to the content of the expression,
however, then the regulation falls outside the scope of the
O'Brien test and must be justified under a more demanding
standard.
Texas v.
Johnson, supra, at 403.
In
Barnes, we analyzed an almost identical statute,
holding that Indiana's public nudity ban did not violate the First
Amendment, although no five Members of the Court agreed on a single
rationale for that conclusion. We now clarify that government
restrictions on public nudity such as the ordinance at issue here
should be evaluated under the framework set forth in
O'Brien
for content-neutral restrictions on symbolic speech.
The city of Erie argues that the ordinance is a contentneutral
restriction that is reviewable under
O'Brien because the
ordinance bans conduct, not speech; specifically, public
290
Opinion of O'CONNOR, J.
nudity. Respondent counters that the ordinance targets nude
dancing and, as such, is aimed specifically at suppressing
expression, making the ordinance a content-based restriction that
must be subjected to strict scrutiny.
The ordinance here, like the statute in
Barnes, is on its
face a general prohibition on public nudity. 553 Pa., at 354, 719
A. 2d, at 277. By its terms, the ordinance regulates conduct alone.
It does not target nudity that contains an erotic message; rather,
it bans all public nudity, regardless of whether that nudity is
accompanied by expressive activity. And like the statute in
Barnes, the Erie ordinance replaces and updates provisions
of an "Indecency and Immorality" ordinance that has been on the
books since 1866, predating the prevalence of nude dancing
establishments such as Kandyland. Pet. for Cert. 7a; see
Barnes v.
Glen Theatre, Inc., supra, at 568.
Respondent and JUSTICE STEVENS contend nonetheless that the
ordinance is related to the suppression of expression because
language in the ordinance's preamble suggests that its actual
purpose is to prohibit erotic dancing of the type performed at
Kandyland.
Post, at 318 (dissenting opinion). That is not
how the Pennsylvania Supreme Court interpreted that language,
however. In the preamble to the ordinance, the city council stated
that it was adopting the regulation
"'for the purpose of limiting a recent increase in nude live
entertainment within the City, which activity adversely impacts and
threatens to impact on the public health, safety and welfare by
providing an atmosphere conducive to violence, sexual harassment,
public intoxication, prostitution, the spread of sexually
transmitted diseases and other deleterious effects.'" 553 Pa., at
359, 719 A. 2d, at 279.
The Pennsylvania Supreme Court construed this language to mean
that one purpose of the ordinance was "to combat negative secondary
effects."
Ibid.
291
As JUSTICE SOUTER noted in
Barnes, "on its face, the
governmental interest in combating prostitution and other criminal
activity is not at all inherently related to expression." 501 U.
S., at 585 (opinion concurring in judgment). In that sense, this
case is similar to
O'Brien. O'Brien burned his draft
registration card as a public statement of his antiwar views, and
he was convicted under a statute making it a crime to knowingly
mutilate or destroy such a card. This Court rejected his claim that
the statute violated his First Amendment rights, reasoning that the
law punished him for the "noncommunicative impact of his conduct,
and for nothing else." 391 U. S., at 382. In other words, the
Government regulation prohibiting the destruction of draft cards
was aimed at maintaining the integrity of the Selective Service
System and not at suppressing the message of draft resistance that
O'Brien sought to convey by burning his draft card. So too here,
the ordinance prohibiting public nudity is aimed at combating crime
and other negative secondary effects caused by the presence of
adult entertainment establishments like Kandyland and not at
suppressing the erotic message conveyed by this type of nude
dancing. 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 the impacts on public health,
safety, and welfare, which we have previously recognized are
"caused by the presence of even one such" establishment.
Renton v.
Playtime Theatres, Inc., 475 U. S. 41, 47-48, 50
(1986); see also
Boos v.
Barry, 485 U. S. 312, 321
(1988).
Although the Pennsylvania Supreme Court acknowledged that one
goal of the ordinance was to combat the negative secondary effects
associated with nude dancing establishments, the court concluded
that the ordinance was nevertheless content based, relying on
Justice White's position in dissent in
Barnes for the
proposition that a ban of this type
necessarily has the
purpose of suppressing the erotic mes-
292
Opinion of O'CONNOR, J.
sage of the dance. Because the Pennsylvania court agreed with
Justice White's approach, it concluded that the ordinance must have
another, "unmentioned" purpose related to the suppression of
expression. 553 Pa., at 359, 719 A. 2d, at 279. That is, the
Pennsylvania court adopted the dissent's view in
Barnes
that" '[s]ince the State permits the dancers to perform if they
wear pas ties and G-strings but forbids nude dancing, it is
precisely because of the distinctive, expressive content of the
nude dancing performances at issue in this case that the State
seeks to apply the statutory prohibition." 553 Pa., at 359, 719 A.
2d, at 279 (quoting
Barnes, supra, at 592 (White, J.,
dissenting)). A majority of the Court rejected that view in
Barnes, and we do so again here.
Respondent's argument that the ordinance is "aimed" at
suppressing expression through a ban on nude dancing-an argument
that respondent supports by pointing to statements by the city
attorney that the public nudity ban was not intended to apply to
"legitimate" theater productionsis really an argument that the city
council also had an illicit motive in enacting the ordinance. As we
have said before, however, this Court will not strike down an
otherwise constitutional statute on the basis of an alleged illicit
motive.
O'Brien, supra, at 382-383;
Renton v.
Playtime Theatres, Inc., supra, at 47-48 (that the
"predominate" purpose of the statute was to control secondary
effects was "more than adequate to establish" that the city's
interest was unrelated to the suppression of expression). In light
of the Pennsylvania court's determination that one purpose of the
ordinance is to combat harmful secondary effects, the ban on public
nudity here is no different from the ban on burning draft
registration cards in
O'Brien, where the Government sought
to prevent the means of the expression and not the expression of
antiwar sentiment itself.
JUSTICE STEVENS argues that the ordinance enacts a complete ban
on expression. We respectfully disagree with that characterization.
The public nudity ban certainly has
293
the effect of limiting one particular means of expressing the
kind of erotic message being disseminated at Kandyland. But simply
to define what is being banned as the "message" is to assume the
conclusion. We did not analyze the regulation in
O'Brien as
having enacted a total ban on expression. Instead, the Court
recognized that the regulation against destroying one's draft card
was justified by the Government's interest in preventing the
harmful "secondary effects" of that conduct (disruption to the
Selective Service System), even though that regulation may have
some incidental effect on the expressive element of the conduct.
Because this justification was unrelated to the suppression of
O'Brien's antiwar message, the regulation was content neutral.
Although there may be cases in which banning the means of
expression so interferes with the message that it essentially bans
the message, that is not the case here.
Even if we had not already rejected the view that a ban on
public nudity is necessarily related to the suppression of the
erotic message of nude dancing, we would do so now because the
premise of such a view is flawed. The State's interest in
preventing harmful secondary effects is not related to the
suppression of expression. In trying to control the secondary
effects of nude dancing, the ordinance seeks to deter crime and the
other deleterious effects caused by the presence of such an
establishment in the neighborhood. See
Renton, supra, at
50-51. In
Clark v.
Community for Creative
Non-Violence, 468
U. S. 288 (1984), we held that a National Park Service
regulation prohibiting camping in certain parks did not violate the
First Amendment when applied to prohibit demonstrators from
sleeping in Lafayette Park and the Mall in Washington, D.
C., in connection with a demonstration intended to call
attention to the plight of the homeless. Assuming,
arguendo,
that sleeping can be expressive conduct, the Court concluded that
the Government interest in conserving park property was unrelated
to the demonstrators' message about homelessness.
Id., at
299.
294
Opinion of O'CONNOR, J.
So, while the demonstrators were allowed to erect "symbolic tent
cities," they were not allowed to sleep overnight in those tents.
Even though the regulation may have directly limited the expressive
element involved in actually sleeping in the park, the regulation
was nonetheless content neutral.
Similarly, even if Erie's public nudity ban has some minimal
effect on the erotic message by muting that portion of the
expression that occurs when the last stitch is dropped, the dancers
at Kandyland and other such establishments are free to perform
wearing pasties and G-strings. Any effect on the overall expression
is
de minimis. And as JUSTICE STEVENS eloquently stated for
the plurality in
Young v.
American Mini Theatres,
Inc., 427 U. S.
50, 70 (1976), "even though we recognize that the First
Amendment will not tolerate the total suppression of erotic
materials that have some arguably artistic value, it is manifest
that society's interest in protecting this type of expression is of
a wholly different, and lesser, magnitude than the interest in
untrammeled political debate," and "few of us would march our sons
and daughters off to war to preserve the citizen's right to see"
specified anatomical areas exhibited at establishments like
Kandyland. If States are to be able to regulate secondary effects,
then
de minimis intrusions on expression such as those at
issue here cannot be sufficient to render the ordinance content
based. See
Clark v.
Community for Creative Non- Violence,
supra, at 299;
Ward v.
Rock Against Racism,
491 U. S. 781,
791 (1989) (even if regulation has an incidental effect on some
speakers or messages but not others, the regulation is content
neutral if it can be justified without reference to the content of
the expression).
This case is, in fact, similar to
O'Brien, Community for
Creative Non-Violence, and
Ward. The justification for
the government regulation in each case prevents harmful "secondary"
effects that are unrelated to the suppression of expression. See,
e. g., Ward v.
Rock Against Racism, supra, at 791-792
(noting that "[t]he principal justification for the
295
sound-amplification guideline is the city's desire to control
noise levels at bands hell events, in order to retain the character
of the [adjacent] Sheep Meadow and its more sedate activities," and
citing
Renton for the proposition that "[a] regulation that
serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or
messages but not others"). While the doctrinal theories behind
"incidental burdens" and "secondary effects" are, of course, not
identical, there is nothing objectionable about a city passing a
general ordinance to ban public nudity (even though such a ban may
place incidental burdens on some protected speech) and at the same
time recognizing that one specific occurrence of public nuditynude
erotic dancing-is particularly problematic because it produces
harmful secondary effects.
JUSTICE STEVENS claims that today we "[f]or the first time"
extend
Renton's secondary effects doctrine to justify
restrictions other than the location of a commercial enterprise.
Post, at 317 (dissenting opinion). Our reliance on
Renton to justify other restrictions is not new, however. In
Ward, the Court relied on
Renton to evaluate
restrictions on sound amplification at an outdoor bands hell,
rejecting the dissent's contention that
Renton was
inapplicable. See
Ward v.
Rock Against Racism, supra,
at 804, n. 1 (Marshall, J., dissenting) ("Today, for the first
time, a majority of the Court applies
Renton analysis to a
category of speech far afield from that decision's original limited
focus"). Moreover, Erie's ordinance does not effect a "total ban"
on protected expression.
Post, at 319.
In
Renton, the regulation explicitly treated "adult"
movie theaters differently from other theaters, and defined "adult"
theaters solely by reference to the content of their movies. 475 U.
S., at 44. We nonetheless treated the zoning regulation as content
neutral because the ordinance was aimed at the secondary effects of
adult theaters, a justification unrelated to the content of the
adult movies themselves.
Id., at
296
Opinion of O'CONNOR, J.
48. Here, Erie's ordinance is on its face a content-neutral
restriction on conduct. Even if the city thought that nude dancing
at clubs like Kandyland constituted a particularly problematic
instance of public nudity, the regulation is still properly
evaluated as a content-neutral restriction because the interest in
combating the secondary effects associated with those clubs is
unrelated to the suppression of the erotic message conveyed by nude
dancing.
We conclude that Erie's asserted interest in combating the
negative secondary effects associated with adult entertainment
establishments like Kandyland is unrelated to the suppression of
the erotic message conveyed by nude dancing. The ordinance
prohibiting public nudity is therefore valid if it satisfies the
four-factor test from
O'Brien for evaluating restrictions on
symbolic speech.
IV
Applying that standard here, we conclude that Erie's ordinance
is justified under
O'Brien. The first factor of the
O'Brien test is whether the government regulation is within
the constitutional power of the government to enact. Here, Erie's
efforts to protect public health and safety are clearly within the
city's police powers. The second factor is whether the regulation
furthers an important or substantial government interest. The
asserted interests of regulating conduct through a public nudity
ban and of combating the harmful secondary effects associated with
nude dancing are undeniably important. And in terms of
demonstrating that such secondary effects pose a threat, the city
need not "conduct new studies or produce evidence independent of
that already generated by other cities" to demonstrate the problem
of secondary effects, "so long as whatever evidence the city relies
upon is reasonably believed to be relevant to the problem that the
city addresses."
Renton v.
Playtime Theatres, Inc.,
supra, at 51-52. Because the nude dancing at Kandyland is of
the same character as the adult entertain-
297
ment at issue in
Renton, Young v.
American Mini
Theatres, Inc., 427 U. S. 50 (1976), and
California v.
LaRue, 409 U. S. 109 (1972), it
was reasonable for Erie to conclude that such nude dancing was
likely to produce the same secondary effects. And Erie could
reasonably rely on the evidentiary foundation set forth in
Renton and
American Mini Theatres to the effect that
secondary effects are caused by the presence of even one adult
entertainment establishment in a given neighborhood. See
Renton v.
Playtime Theatres, Inc., supra, at 51-52
(indicating that reliance on a judicial opinion that describes the
evidentiary basis is sufficient). In fact, Erie expressly relied on
Barnes and its discussion of secondary effects, including
its reference to
Renton and
American Mini Theatres.
Even in cases addressing regulations that strike closer to the core
of First Amendment values, we have accepted a state or local
government's reasonable belief that the experience of other
jurisdictions is relevant to the problem it is addressing. See
Nixon v.
Shrink Missouri Government PAC, 528 U. S. 377, 393, n. 6
(2000). Regardless of whether JUSTICE SOUTER now wishes to disavow
his opinion in
Barnes on this point, see
post, at
316-317 (opinion concurring in part and dissenting in part), the
evidentiary standard described in
Renton controls here, and
Erie meets that standard.
In any event, Erie also relied on its own findings. The preamble
to the ordinance states that "the Council of the City of Erie
has, at various times over more than a century, expressed its
findings that certain lewd, immoral activities carried on in
public places for profit are highly detrimental to the public
health, safety and welfare, and lead to the debasement of both
women and men, promote violence, public intoxication, prostitution
and other serious criminal activity." Pet. for Cert. 6a (emphasis
added). The city council members, familiar with commercial downtown
Erie, are the individuals who would likely have had firsthand
knowledge of what took place at and around nude dancing
establish-
298
Opinion of O'CONNOR, J.
ments in Erie, and can make particularized, expert judgments
about the resulting harmful secondary effects. Analogizing to the
administrative agency context, it is well established that, as long
as a party has an opportunity to respond, an administrative agency
may take official notice of such "legislative facts" within its
special knowledge, and is not confined to the evidence in the
record in reaching its expert judgment. See
FCC v.
National Citizens Comm. for Broadcasting, 436 U. S. 775 (1978);
Republic Aviation Corp. v.
NLRB, 324 U. S. 793 (1945); 2
K. Davis & R. Pierce, Administrative Law Treatise § 10.6 (3d
ed. 1994). Here, Kandyland has had ample opportunity to contest the
council's findings about secondary effects-before the council
itself, throughout the state proceedings, and before this Court.
Yet to this day, Kandyland has never challenged the city council's
findings or cast any specific doubt on the validity of those
findings. Instead, it has simply asserted that the council's
evidentiary proof was lacking. In the absence of any reason to
doubt it, the city's expert judgment should be credited. And the
study relied on by
amicus curiae does not cast any
legitimate doubt on the Erie city council's judgment about Erie.
See Brief for First Amendment Lawyers Association as
Amicus
Curiae 16-23.
Finally, it is worth repeating that Erie's ordinance is on its
face a content-neutral restriction that regulates conduct, not
First Amendment expression. And the government should have
sufficient leeway to justify such a law based on secondary effects.
On this point,
O'Brien is especially instructive. The Court
there did not require evidence that the integrity of the Selective
Service System would be jeopardized by the knowing destruction or
mutilation of draft cards. It simply reviewed the Government's
various administrative interests in issuing the cards, and then
concluded that "Congress has a legitimate and substantial interest
in preventing their wanton and unrestrained destruction and
assuring their continuing availability by punishing people
299
who knowingly and willfully destroy or mutilate them." 391 U.
S., at 378-380. There was no study documenting instances of draft
card mutilation or the actual effect of such mutilation on the
Government's asserted efficiency interests. But the Court permitted
Congress to take official notice, as it were, that draft card
destruction would jeopardize the system. The fact that this sort of
leeway is appropriate in a case involving conduct says nothing
whatsoever about its appropriateness in a case involving actual
regulation of First Amendment expression. As we have said, so long
as the regulation is unrelated to the suppression of expression,
"[t]he government generally has a freer hand in restricting
expressive conduct than it has in restricting the written or spoken
word."
Texas v.
Johnson, 491 U. S., at 406. See,
e. g., United States v.
O'Brien, supra, at 377;
United States v.
Albertini, 472 U. S. 675, 689 (1985)
(finding sufficient the Government's assertion that those who had
previously been barred from entering the military installation pose
a threat to the security of that installation);
Clark v.
Community for Creative Non-Violence, 468 U. S., at 299
(finding sufficient the Government's assertion that camping
overnight in the park poses a threat to park property).
JUSTICE SOUTER, however, would require Erie to develop a
specific evidentiary record supporting its ordinance.
Post,
at 317 (opinion concurring in part and dissenting in part). JUSTICE
SOUTER agrees that Erie's interest in combating the negative
secondary effects associated with nude dancing establishments is a
legitimate government interest unrelated to the suppression of
expression, and he agrees that the ordinance should therefore be
evaluated under
O'Brien. O'Brien, of course, required no
evidentiary showing at all that the threatened harm was real. But
that case is different, JUSTICE SOUTER contends, because in
O'Brien "there could be no doubt" that a regulation
prohibiting the destruction of draft cards would alleviate the
harmful secondary ef-
300
Opinion of O'CONNOR, J.
fects flowing from the destruction of those cards.
Post,
at 311, n. 1.
But whether the harm is evident to our "intuition,"
ibid., is not the proper inquiry. If it were, we would
simply say there is no doubt that a regulation prohibiting public
nudity would alleviate the harmful secondary effects associated
with nude dancing. In any event, JUSTICE SOUTER conflates two
distinct concepts under
O'Brien: whether there is a
substantial government interest and whether the regulation furthers
that interest. As to the government interest, i.
e., whether
the threatened harm is real, the city council relied on this
Court's opinions detailing the harmful secondary effects caused by
establishments like Kandyland, as well as on its own experiences in
Erie. JUSTICE SOUTER attempts to denigrate the city council's
conclusion that the threatened harm was real, arguing that we
cannot accept Erie's findings because the subject of nude dancing
is "fraught with some emotionalism,"
post, at 314. Yet
surely the subject of drafting our citizens into the military is
"fraught" with more emotionalism than the subject of regulating
nude dancing.
Ibid. JUSTICE SOUTER next hypothesizes that
the reason we cannot accept Erie's conclusion is that, since the
question whether these secondary effects occur is "amenable to
empirical treatment," we should ignore Erie's actual experience and
instead require such an empirical analysis.
Post, at
314-315, n. 3 (referring to a "scientifically sound" study offered
by an
amicus curiae to show that nude dancing establishments
do not cause secondary effects). In
Nixon, however, we
flatly rejected that idea. 528 U. S., at 394 (noting that the
"invocation of academic studies said to indicate" that the
threatened harms are not real is insufficient to cast doubt on the
experience of the local government).
As to the second point-whether the regulation furthers the
government interest-it is evident that, since crime and other
public health and safety problems are caused by the presence of
nude dancing establishments like Kandyland, a
301
ban on such nude dancing would further Erie's interest in
preventing such secondary effects. To be sure, requiring dancers to
wear pas ties and G-strings may not greatly reduce these secondary
effects, but
O'Brien requires only that the regulation
further the interest in combating such effects. Even though the
dissent questions the wisdom of Erie's chosen remedy,
post,
at 323 (opinion of STEVENS, J.), the" 'city must be allowed a
reasonable opportunity to experiment with solutions to admittedly
serious problems,'"
Renton v.
Playtime Theatres,
Inc., 475 U. S., at 52 (quoting
American Mini Theatres,
427 U. S., at 71 (plurality opinion)). It also may be true that a
pasties and G-string requirement would not be as effective as, for
example, a requirement that the dancers be fully clothed, but the
city must balance its efforts to address the problem with the
requirement that the restriction be no greater than necessary to
further the city's interest.
The ordinance also satisfies
O'Brien's third factor, that
the government interest is unrelated to the suppression of free
expression, as discussed
supra, at 289-296. The fourth and
final
O'Brien factor-that the restriction is no greater than
is essential to the furtherance of the government interestis
satisfied as well. The ordinance regulates conduct, and any
incidental impact on the expressive element of nude dancing is
de minimis. The requirement that dancers wear pasties and
G-strings is a minimal restriction in furtherance of the asserted
government interests, and the restriction leaves ample capacity to
convey the dancer's erotic message. See
Barnes v.
Glen
Theatre, Inc., 501 U. S., at 572 (plurality opinion of
REHNQUIST, C. J., joined by O'CONNOR and KENNEDY, JJ.);
id.,
at 587 (SOUTER, J., concurring in judgment). JUSTICE SOUTER points
out that zoning is an alternative means of addressing this problem.
It is far from clear, however, that zoning imposes less of a burden
on expression than the minimal requirement implemented here. In any
event, since this is a content-neutral restriction, least
restrictive
302
SCALIA, J., concurring in judgment
means analysis is not required. See
Ward, 491 U. S., at
798799, n. 6.
We hold, therefore, that Erie's ordinance is a contentneutral
regulation that is valid under
O'Brien. Accordingly, the
judgment of the Pennsylvania Supreme Court is reversed, and the
case is remanded for further proceedings.
It is so ordered.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, concurring in
the judgment.
I
In my view, the case before us here is moot. The Court concludes
that it is not because respondent could resume its nude dancing
operations in the future, and because petitioners have suffered an
ongoing, redressable harm consisting of the state court's
invalidation of their public nudity ordinance.
As to the first point: Petitioners do not dispute that Kandyland
no longer exists; the building in which it was located has been
sold to a real estate developer, and the premises are currently
being used as a comedy club. We have a sworn affidavit from
respondent's sole shareholder, Nick Panos, to the effect that Pap's
"operates no active business," and is "a 'shell' corporation." More
to the point, Panos swears that neither Pap's nor Panos "employ[s]
any individuals involved in the nude dancing business,"
"maintain[s] any contacts in the adult entertainment business,"
"has any current interest in any establishment providing nude
dancing," or "has any intention to own or operate a nude dancing
establishment in the future." 1 App. to Reply to Brief in
Opposition to Motion to Dismiss 7-8.
1 Curiously, the Court makes no mention of Panos' averment of no
intention to operate a nude dancing establishment in the future,
but discusses the issue as though the only factor suggesting
mootness is the closing of Kandyland.
Ante, at 287-288. I
see no basis for ignoring this aver-
303
Petitioners do not contest these representations, but offer in
response only that Pap's
could very easily get back into the
nude dancing business. The Court adopts petitioners' line,
concluding that because respondent is still incorporated in
Pennsylvania, it "could again decide to operate a nude dancing
establishment in Erie."
Ante, at 287. That plainly does not
suffice under our cases. The test for mootness we have applied in
voluntary-termination cases is not whether the action originally
giving rise to the controversy could not
conceivably
reoccur, but whether it is "absolutely clear that the ... behavior
could not
reasonably be expected to recur." United States v.
Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968)
(emphasis added). Here I think that test is met. According to
Panos' uncontested sworn affidavit, Pap's ceased doing business at
Kandyland, and the premises were sold to an independent developer,
in 1998the year before the petition for certiorari in this case was
filed. It strains credulity to suppose that the 72-year-old Mr.
Panos shut down his going business
after securing his
victory in the Pennsylvania Supreme Court, and before the city's
petition for certiorari was even filed, in order to increase his
chances of preserving his judgment in the statistically unlikely
event that a (not yet filed) petition might be granted. Given the
timing of these events, given the fact that respondent has no
existing interest in nude dancing (or in any other business), given
Panos' sworn representation that he does not intend to
invest-through Pap's or otherwise-in any nude dancing business, and
given Panos' ad-
ment. The only fact mentioned by the Court to justify regarding
it as perjurious is that respondent failed to raise mootness in its
brief in opposition to the petition for certiorari. That may be
good basis for censure, but it is scant basis for suspicion of
perjury-particularly since respondent, far from seeking to
"insulate a favorable decision from review,"
ante, at 288,
asks us in light of the mootness to vacate the judgment below.
Reply to Brief in Opposition to Motion to Dismiss 5.
304
SCALIA, J., concurring in judgment
vanced age,2 it seems to me that there is "no reasonable
expectation," even if there remains a theoretical
possibility, that Pap's will resume nude dancing operations in the
future.3
The situation here is indistinguishable from that which obtained
in
Arizonans for Official English v.
Arizona, 520 U.
S. 43 (1997), where the plaintiff-respondent, a state employee who
had sued to enjoin enforcement of an amendment to the Arizona
Constitution making English that State's official language, had
resigned her public-sector employment. We held the case moot and,
since the mootness was attributable to the "'unilateral action of
the party who prevailed in the lower court,'" we followed our usual
practice of vacating the favorable judgment respondent had obtained
in the
2 The Court asserts that "[s]everal Members of this Court can
attest ... that the 'advanced age'" of 72 "does not make it
'absolutely clear' that a life of quiet retirement is [one's] only
reasonable expectation."
Ante, at 288. That is
tnis
gallant, but it misses the point. Now as heretofore, Justices
in their seventies continue to do their work competently-indeed,
perhaps better than their youthful colleagues because of the wisdom
that age imparts. But to respond to my point, what the Court
requires is citation of an instance in which a Member of this Court
(or of any other court, for that matter) resigned at the age of 72
to begin a new careeror more remarkable still (for this is what the
Court suspects the young Mr. Panos is up to) resigned at the age of
72 to go judge on a different court, of no greater stature, and
located in Erie, Pennsylvania, rather than Palm Springs. I base my
assessment of reasonable expectations not upon Mr. Panos' age
alone, but upon that combined with his sale of the business and his
assertion, under oath, that he does not intend to enter
another.
3 It is significant that none of the assertions of Panos'
affidavit is contested. Those pertaining to the sale of Kandyland
and the current noninvolvement of Pap's in any other nude dancing
establishment would seem readily verifiable by petitioners. The
statements regarding Pap's and Panos' intentions for the future are
by their nature not verifiable, and it would be reasonable not to
credit them if
either petitioners asserted some reason to
believe they were not true
or they were not rendered highly
plausible by Panos' age and his past actions. Neither condition
exists here.
305
Court of Appeals. Id., at 72 (quoting U. S. Bancorp Mortgage Co.
v. Bonner Mall Partnership,
513 U. S. 18,23
(1994)).
The rub here is that this case comes to us on writ of certiorari
to a state court, so that our lack of jurisdiction over the case
also entails, according to our recent jurisprudence, a lack of
jurisdiction to direct a vacatur. See
ASARCO Inc. v.
Kadish, 490 U.
S. 605, 621, n. 1 (1989). The consequences of that limitation
on our power are in this case significant:
A dismissal for mootness caused by respondent's unilateral
action would leave petitioners subject to an ongoing legal
disability, and a large one at that. Because the Pennsylvania
Supreme Court severed the public nudity provision from the
ordinance, thus rendering it inoperative, the city would be
prevented from enforcing its public nudity prohibition not only
against respondent, should it decide to resume operations in the
future, and not only against other nude dancing establishments, but
against anyone who appears nude in public, regardless of the
"expressiveness" of his conduct or his purpose in engaging in
it.
That is an unfortunate consequence (which could be avoided, of
course, if the Pennsylvania Supreme Court chose to vacate its
judgments in cases that become moot during appeal). But it is not a
consequence that authorizes us to entertain a suit the Constitution
places beyond our power. And leaving in effect erroneous state
determinations regarding the Federal Constitution is, after all,
not unusual. It would have occurred here, even without the
intervening mootness, if we had denied certiorari. And until the
1914 revision of the Judicial Code, it occurred
whenever a
state court erroneously sustained a federal constitutional
challenge, since we did not even have
statutory jurisdiction
to entertain an appeal. Compare Judiciary Act of 1789, ch. 20, §
25, 1 Stat. 85-87, with Act of Dec. 23, 1914, ch. 2, 38 Stat. 790.
In any event, the short of the matter is that we have no power to
suspend the fundamental precepts that federal courts "are limited
by the case-or-controversy requirement
306
SCALIA, J., concurring in judgment
of Art. III to adjudication of actual disputes between adverse
parties,"
Richardson v.
Ramirez, 418 U. S. 24, 36 (1974),
and that this limitation applies "at all stages of review,"
Preiser v.
Newkirk, 422 U. S. 395, 401 (1975)
(quoting
Steffel v.
Thompson, 415 U. S. 452, 459, n. 10
(1974)) (internal quotation marks omitted).
Which brings me to the Court's second reason for holding that
this case is still alive: The Court concludes that because
petitioners have an "ongoing injury" caused by the state court's
invalidation of its duly enacted public nudity provision, our
ability to hear the case and reverse the judgment below is itself
"sufficient to prevent the case from being moot."
Ante, at
288. Although the Court does not cite any authority for the
proposition that the burden of an adverse decision below suffices
to keep a case alive, it is evidently relying upon our decision in
ASARCO, which held that Article Ill's standing requirements
were satisfied on writ of certiorari to a state court even though
there would have been no Article III standing for the action
producing the state judgment on which certiorari was sought. We
assumed jurisdiction in the case because we concluded that the
party seeking to invoke the federal judicial power had standing to
challenge the adverse judgment entered against them by the state
court. Because that judgment, if left undisturbed, would "caus[e]
direct, specific, and concrete injury to the parties who petition
for our review,"
ASARCO, 490 U. S., at 623-624, and because
a decision by this Court to reverse the State Supreme Court would
clearly redress that injury, we concluded that the original
plaintiffs' lack of standing was not fatal to our jurisdiction,
id., at 624.
I dissented on this point in
ASARCO, see
id., at
634 (REHNQUIST, C. J., concurring in part and dissenting in part,
joined by SCALIA, J.), and remain of the view that it was
incorrectly decided. But
ASARCO at least did not purport to
hold that the constitutional standing requirements of injury,
causation, and redressability may be satisfied
solely by
307
reference to the lower court's adverse judgment. It was careful
to note-however illogical that might have been, see
id., at
635-that the parties "remain[ed] adverse," and that jurisdiction
was proper only so long as the "requisites of a case or controversy
are also met,"
id., at 619, 624. Today the Court would
appear to drop even this fig leaf.4 In concluding that the injury
to
Erie is "sufficient" to keep this case alive, the Court
performs the neat trick of identifying a "case or controversy" that
has only one interested party.
II
For the reasons set forth above, I would dismiss this case for
want of jurisdiction. Because the Court resolves the threshold
mootness question differently and proceeds to address the merits, I
will do so briefly as well. I agree that the decision of the
Pennsylvania Supreme Court must be reversed, but disagree with the
mode of analysis the Court has applied.
The city of Erie self-consciously modeled its ordinance on the
public nudity statute we upheld against constitutional challenge in
Barnes v.
Glen Theatre, Inc., 501 U. S. 560 (1991),
calculating (one would have supposed reasonably) that the courts of
Pennsylvania would consider themselves bound by our judgment on a
question of federal constitutional law. In
Barnes, I voted
to uphold the challenged Indiana statute "not because it survives
some lower level of First Amendment scrutiny, but because, as a
general law regulating conduct and not specifically directed at
expression, it is not
4 I say "appear" because although the Court states categorically
that "the availability of ... relief [from the judgment below] is
sufficient to prevent the case from being moot," it follows this
statement, in the next sentence, with the assertion that Pap's, the
state-court plaintiff, retains a "concrete stake in the outcome of
this case."
Ante, at 288. Of course, if the latter were true
a classic case or controversy existed, and resort to the exotic
theory of "standing by virtue of adverse judgment below" was
entirely unnecessary.
308
SCALIA, J., concurring in judgment
subject to First Amendment scrutiny at all."
Id., at 572
(opinion concurring in judgment). Erie's ordinance, too, by its
terms prohibits not merely nude dancing, but the actirrespective of
whether it is engaged in for expressive purposes-of going nude in
public. The facts that a preamble to the ordinance explains that
its purpose, in part, is to "limi[t] a recent increase in nude live
entertainment," App. to Pet. for Cert. 42a, that city
councilmembers in supporting the ordinance commented to that
effect, see
post, at 329-330, and n. 16 (STEVENS, J.,
dissenting), and that the ordinance includes in the definition of
nudity the exposure of devices simulating that condition, see
post, at 331, neither make the law any less general in its
reach nor demonstrate that what the municipal authorities
really find objectionable is expression rather than public
nakedness. As far as appears (and as seems overwhelmingly likely),
the preamble, the councilmembers' comments, and the chosen
definition of the prohibited conduct simply reflect the fact that
Erie had recently been having a public nudity problem not with
streakers, sunbathers, or hot dog vendors, see
Barnes,
supra, at 574 (SCALIA, J., concurring in judgment), but with
lap dancers.
There is no basis for the contention that the ordinance does not
apply to nudity in theatrical productions such as Equus or Hair.
Its text contains no such limitation. It was stipulated in the
trial court that no effort was made to enforce the ordinance
against a production of Equus involving nudity that was being
staged in Erie at the time the ordinance became effective. App.84.
Notwithstanding JUSTICE STEVENS' assertion to the contrary,
however, see
post, at 328, neither in the stipulation, nor
elsewhere in the record, does it appear that the city was aware of
the nudity-and before this Court counsel for the city attributed
nonenforcement not to a general exception for theatrical
productions, but to the fact that no one had complained. Tr. of
Oral Arg. 16. One instance of nonenforcement-against a play already
in production that prosecutorial discretion might reasonably
have
309
"grandfathered"-does not render this ordinance discriminatory on
its face. To be sure, in the trial court counsel for the city said
that "[t]o the extent that the expressive activity that is
contained in [such] productions rises to a higher level of
protected expression, they would not be [covered]," App. 53-but he
rested this assertion upon the provision in the preamble that
expressed respect for "fundamental Constitutional guarantees of
free speech and free expression," and the provision of Paragraph 6
of the ordinance that provided for severability of unconstitutional
provisions,
id., at 53-54.5 What he was saying there (in
order to fend off the overbreadth challenge of respondent, who was
in no doubt that the ordinance
did cover theatrical
productions, see
id., at 55) was essentially what he said at
oral argument before this Court: that the ordinance would not be
enforceable against theatrical productions if the Constitution
forbade it. Tr. of Oral Arg. 13. Surely that limitation does not
cause the ordinance to be not generally applicable, in the relevant
sense of being
targeted against expressive conduct.6
5 This followup explanation rendered what JUSTICE STEVENS calls
counsel's "categorical" assertion that such productions would be
exempt, see
post, at 328, n. 12, notably uncategorical.
Rather than accept counsel's explanation-in the trial court and
here-that is compatible with the text of the ordinance, JUSTICE
STEVENS rushes to assign the ordinance a meaning that its words
cannot bear, on the basis of counsel's initial footfault. That is
not what constitutional adjudication ought to be.
6 To correct JUSTICE STEVENS' characterization of my present
point: I do not argue that Erie "carved out an exception" for Equus
and Hair.
Post, at 328, n. 14. Rather, it is my contention
that the city attorney assured the trial court that the ordinance
was susceptible of an interpretation that would carve out such
exceptions to the extent the Constitution required them. Contrary
to JUSTICE STEVENS' view,
ibid., I do not believe that a law
directed against all public nudity ceases to be a "general law"
(rather than one directed at expression) if it makes exceptions for
nudity protected by decisions of this Court. To put it another way,
I do not think a law contains the vice of being directed against
expression if it bans all public nudity, except that public nudity
which the Supreme Court has held cannot be banned because of its
expressive content.
310
Opinion of SOUTER, J.
Moreover, even were I to conclude that the city of Erie had
specifically singled out the activity of nude dancing, I still
would not find that this regulation violated the First Amendment
unless I could be persuaded (as on this record I cannot) that it
was the communicative character of nude dancing that prompted the
ban. When conduct other than speech itself is regulated, it is my
view that the First Amendment is violated only "[w]here the
government prohibits conduct precisely because of its communicative
attributes."
Barnes, 501 U. S., at 577 (emphasis deleted).
Here, even if one hypothesizes that the city's object was to
suppress only nude dancing, that would not establish an intent to
suppress what (if anything) nude dancing communicates. I do not
feel the need, as the Court does, to identify some "secondary
effects" associated with nude dancing that the city could properly
seek to eliminate. (I am highly skeptical, to tell the truth, that
the addition of pasties and G-strings will at all reduce the
tendency of establishments such as Kandyland to attract crime and
prostitution, and hence to foster sexually transmitted disease.)
The traditional power of government to foster good morals
(bonos
mores), and the acceptability of the traditional judgment (if
Erie wishes to endorse it) that nude public dancing
itself
is immoral, have not been repealed by the First Amendment.
JUSTICE SOUTER, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion and agree with the
analytical approach that the plurality employs in deciding this
case. Erie's stated interest in combating the secondary effects
associated with nude dancing establishments is an interest
unrelated to the suppression of expression under
United
States v.
O'Brien, 391 U. S. 367 (1968), and
the city's regulation is thus properly considered under the
O'Brien standards. I do not believe, however, that the
current record allows us to say that the city has made a suffi-
311
cient evidentiary showing to sustain its regulation, and I would
therefore vacate the decision of the Pennsylvania Supreme Court and
remand the case for further proceedings.
I
In several recent cases, we have confronted the need for factual
justifications to satisfy intermediate scrutiny under the First
Amendment. See,
e. g., Nixon v.
Shrink Missouri
Government PAC, 528 U. S. 377 (2000);
Turner Broadcasting System, Inc. v.
FCC, 520 U. S. 180 (1997)
(Turner II); Turner Broadcasting System, Inc. v.
FCC,
512 U. S. 622
(1994)
(Turner I). Those cases do not identify with any
specificity a particular quantum of evidence, nor do I seek to do
so in this brief concurrence.1 What the cases do make plain,
however, is that application of an intermediate scrutiny test to a
government's asserted rationale for regulation of expressive
activity demands some factual justification to connect that
rationale with the regulation in issue.
1 As explained below,
infra, at 316, the issue of
evidentiary justification was never joined, and with a multiplicity
of factors affecting the analysis, a general formulation of the
quantum required under
United States v.
O'Brien,
391 U. S. 367
(1968), will at best be difficult. A lesser showing may suffice
when the means-end fit is evident to the untutored intuition. As we
said in
Nixon, "The quantum of empirical evidence needed to
satisfy heightened judicial scrutiny of legislative judgments will
vary up or down with the novelty and plausibility of the
justification raised." 528 U. S., at 391. (In
O'Brien, for
example, the secondary effects that the Government identified
flowed from the destruction of draft cards, and there could be no
doubt that a regulation prohibiting that destruction would
alleviate the concomitant harm.) The nature of the legislating
institution might also affect the calculus. We do not require
Congress to create a record in the manner of an administrative
agency, see
Turner II, 520 U. S. 180, 213
(1997), and we accord its findings greater respect than those of
agencies. See
id., at 195. We might likewise defer less to a
city council than we would to Congress. The need for evidence may
be especially acute when a regulation is content based on its face
and is analyzed as content neutral only because of the secondary
effects doctrine. And it may be greater when the regulation takes
the form of a ban, rather than a time, place, or manner
restriction.
312
Opinion of SOUTER, J.
In
Turner I, for example, we stated that
"[w]hen the Government defends a regulation on speech as a means
to redress past harms or prevent anticipated harms, it must do more
than simply 'posit the existence of the disease sought to be
cured.' Quincy Cable TV:
Inc. v. FCC, 768 F.2d
1434, 1455 (CADC 1985). It must demonstrate that the
recited harms are real, not merely conjectural, and that the
regulation will in fact alleviate these harms in a direct and
material way." Id., at 664 (plurality opinion).
The plurality concluded there, of course, that the record,
though swollen by three years of hearings on the Cable Television
Consumer Protection and Competition Act of 1992, was insufficient
to permit the necessary determinations and remanded for a more
thorough factual development. When the case came back to us, in
Turner II, a majority of the Court reiterated those
requirements, characterizing the enquiry into the acceptability of
the Government's regulations as one that turned on whether they
"were designed to address a real harm, and whether those provisions
will alleviate it in a material way." 520 U. S., at 195. Most
recently, in
Nixon, we repeated that "[w]e have never
accepted mere conjecture as adequate to carry a First Amendment
burden," 528 U. S., at 392, and we examined the "evidence
introduced into the record by petitioners or cited by the lower
courts in this action ... ,"
id., at 393.
The focus on evidence appearing in the record is consistent with
the approach earlier applied in
Young v.
American Mini
Theatres, Inc., 427 U. S. 50 (1976), and
Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986). In
Young, Detroit adopted a zoning ordinance requiring
dispersal of adult theaters through the city and prohibiting them
within 500 feet of a residential area. Urban planners and real
estate experts attested to the harms created by clusters of such
theaters, see 427 U. S., at 55, and we found that "[t]he record
313
discloses a factual basis" supporting the efficacy of Detroit's
chosen remedy,
id., at 71. In
Renton, the city
similarly enacted a zoning ordinance requiring specified distances
between adult theaters and residential zones, churches, parks, or
schools. See 475 U. S., at 44. The city "held public hearings,
reviewed the experiences of Seattle and other cities, and received
a report from the City Attorney's Office advising as to
developments in other cities."
Ibid. We found that Renton's
failure to conduct its own studies before enacting the ordinance
was not fatal; "[t]he First Amendment does not require a city ...
to conduct new studies or produce evidence independent of that
already generated by other cities, so long as whatever evidence the
city relies upon is reasonably believed to be relevant to the
problem that the city addresses."
Id., at 51-52.
The upshot of these cases is that intermediate scrutiny requires
a regulating government to make some demonstration of an
evidentiary basis for the harm it claims to flow from the
expressive activity, and for the alleviation expected from the
restriction imposed.2 See,
e. g., Edenfield v.
Fane, 507 U.
S. 761, 770-773 (1993) (striking down regulation of commercial
speech for failure to show direct and material efficacy). That
evidentiary basis may be borrowed from the records made by other
governments if the experience elsewhere is germane to the measure
under consideration and actually relied upon. I will assume,
further, that the reliance may be shown by legislative invocation
of a judicial opinion that accepted an evidentiary foundation as
sufficient
2 The plurality excuses Erie from this requirement with the
simple observation that "it is evident" that the regulation will
have the required efficacy.
Ante, at 300. The
ipse
dixit is unconvincing. While I do agree that evidentiary
demands need not ignore an obvious fit between means and ends, see
n. 1,
supra, it is not obvious that this is such a case. It
is not apparent to me as a matter of common sense that
establishments featuring dancers with pasties and G-strings will
differ markedly in their effects on neighborhoods from those whose
dancers are nude. If the plurality does find it apparent, we may
have to agree to disagree.
314
Opinion of SOUTER, J.
for a similar regulation. What is clear is that the evidence of
reliance must be a matter of demonstrated fact, not speculative
supposition.
By these standards, the record before us today is deficient in
its failure to reveal any evidence on which Erie may have relied,
either for the seriousness of the threatened harm or for the
efficacy of its chosen remedy. The plurality does the best it can
with the materials to hand, see
ante, at 297-298, but the
pickings are slim. The plurality quotes the ordinance's preamble
asserting that over the course of more than a century the city
council had expressed "findings" of detrimental secondary effects
flowing from lewd and immoral profitmaking activity in public
places. But however accurate the recital may be and however
honestly the councilors may have held those conclusions to be true
over the years, the recitation does not get beyond conclusions on a
subject usually fraught with some emotionalism. The plurality
recognizes this, of course, but seeks to ratchet up the value of
mere conclusions by analogizing them to the legislative facts
within an administrative agency's special knowledge, on which
action is adequately premised in the absence of evidentiary
challenge.
Ante, at 298. The analogy is not obvious;
agencies are part of the executive branch and we defer to them in
part to allow them the freedom necessary to reconcile competing
policies. See
Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837, 843-845
(1984). That aside, it is one thing to accord administrative leeway
as to predictive judgments in applying" 'elusive concepts'" to
circumstances where the record is inconclusive and "evidence ... is
difficult to compile,"
FCC v.
National Citizens Comm. for
Broadcasting, 436
U. S. 775, 796-797 (1978), and quite another to dispense with
evidence of current fact as a predicate for banning a subcategory
of expression.3 As
3 The proposition that the presence of nude dancing
establishments increases the incidence of prostitution and violence
is amenable to empirical treatment, and the city councilors who
enacted Erie's ordinance are in a
315
to current fact, the city council's closest approach to an
evidentiary record on secondary effects and their causes was the
statement of one councilor, during the debate over the ordinance,
who spoke of increases in sex crimes in a way that might be
construed as a reference to secondary effects. See App. 44. But
that reference came at the end of a litany of concerns ("free
condoms in schools, drive-by shootings, abortions, suicide
machines," and declining student achievement test scores) that do
not seem to be secondary effects of nude dancing.
Ibid. Nor
does the invocation of
Barnes v.
Glen Theatre, Inc.,
501 U. S. 560
(1991), in one paragraph of the preamble to Erie's ordinance
suffice. App. to Pet. for Cert. 42a. The plurality opinion in
Barnes made no mention of evidentiary showings at all, and
though my separate opinion did make a pass at the issue, I did not
demand reliance on germane evidentiary demonstrations, whether
specific to the statute in question or developed elsewhere. To
invoke
Barnes, therefore, does not indicate that the issue
of evidence has been addressed.
There is one point, however, on which an evidentiary record is
not quite so hard to find, but it hurts, not helps, the city. The
final
O'Brien requirement is that the incidental speech
restriction be shown to be no greater than essential to achieve the
government's legitimate purpose. 391 U. S., at 377. To deal with
this issue, we have to ask what basis there is to think that the
city would be unsuccessful in countering any secondary effects by
the significantly lesser restriction of zoning to control the
location of nude dancing, thus allowing for efficient law
enforcement, restricting effects on property values, and limiting
exposure of the public.
position to look to the facts of their own community's
experience as well as to experiences elsewhere. Their failure to do
so is made all the clearer by one of the
amicus briefs,
largely devoted to the argument that scientifically sound studies
show no such correlation. See Brief for First Amendment Lawyers
Association as
Amicus Curiae 16-23;
id., at App.
1-29.
316
Opinion of SOUTER, J.
The record shows that for 23 years there has been a zoning
ordinance on the books to regulate the location of establishments
like Kandyland, but the city has not enforced it. One councilor
remarked that "I think there's one of the problems. The ordinances
are on the books and not enforced. Now this takes place. You really
didn't need any other ordinances." App. 43. Another commented, "I
felt very, very strongly, and I feel just as strongly right now,
that this is a zoning matter."
Id., at 45. Even on the
plurality's view of the evidentiary burden, this hurdle to the
application of
O'Brien requires an evidentiary response.
The record suggests that Erie simply did not try to create a
record of the sort we have held necessary in other cases, and the
suggestion is confirmed by the course of this litigation. The
evidentiary question was never decided (or, apparently, argued)
below, nor was the issue fairly joined before this Court. While
respondent did claim that the evidence before the city council was
insufficient to support the ordinance, see Brief for Respondent
44-49, Erie's reply urged us not to consider the question,
apparently assuming that
Barnes authorized us to disregard
it. See Reply Brief for Petitioners 6-8. The question has not been
addressed, and in that respect this case has come unmoored from the
general standards of our First Amendment jurisprudence.4
Careful readers, and not just those on the Erie City Council,
will of course realize that my partial dissent rests on a demand
for an evidentiary basis that I failed to make when I concurred in
Barnes, supra. I should have demanded the evidence then,
too, and my mistake calls to mind Justice Jackson's foolproof
explanation of a lapse of his own, when he quoted Samuel Johnson,
"'Ignorance, sir, ignorance.'"
McGrath v.
Kristensen,
340 U. S. 162,
178 (1950) (concurring
4 By contrast, federal courts in other cases have frequently
demanded evidentiary showings. See,
e. g., Phillips v.
Keyport, 107 F.3d
164, 175
(CA3 1997) (en bane);
J&B Entertainment,
Inc. v.
Jackson, 152 F.3d
362,
370-371 (CA5 1998).
317
opinion).5 I may not be less ignorant of nude dancing than I was
nine years ago, but after many subsequent occasions to think
further about the needs of the First Amendment, I have come to
believe that a government must toe the mark more carefully than I
first insisted. I hope it is enlightenment on my part, and
acceptable even if a little late. See
Henslee v.
Union
Planters Nat. Bank &
Trust Co., 335 U. S. 595, 600 (1949)
(per curiam) (Frankfurter, J., dissenting).
II
The record before us now does not permit the conclusion that
Erie's ordinance is reasonably designed to mitigate real harms.
This does not mean that the required showing cannot be made, only
that, on this record, Erie has not made it. I would remand to give
it the opportunity to do SO.6 Accordingly, although I join with the
plurality in adopting the
O'Brien test, I respectfully
dissent from the Court's disposition of the case.
JUSTICE STEVENS, with whom JUSTICE GINSBURG joins,
dissenting.
Far more important than the question whether nude dancing is
entitled to the protection of the First Amendment are the dramatic
changes in legal doctrine that the Court endorses today. Until now,
the "secondary effects" of commercial enterprises featuring
indecent entertainment have justified only the regulation of their
location. For the first time, the Court has now held that such
effects may justify
5 See Boswell, Life of Samuel Johnson, in 44 Great Books of the
Western World 82 (R. Hutchins & M. Adler eds. 1952).
6 This suggestion does not, of course, bar the Pennsylvania
Supreme Court from choosing simpler routes to disposition of the
case if they exist. Respondent mounted a federal overbreadth
challenge to the ordinance; it also asserted a violation of the
Pennsylvania Constitution. Either one of these arguments, if
successful, would obviate the need for the factual development that
is a prerequisite to
O'Brien analysis.
318
the total suppression of protected speech. Indeed, the plurality
opinion concludes that admittedly trivial advancements of a State's
interests may provide the basis for censorship. The Court's
commendable attempt to replace the fractured decision in
Barnes v.
Glen Theatre, Inc., 501 U. S. 560 (1991),
with a single coherent rationale is strikingly unsuccessful; it is
supported neither by precedent nor by persuasive reasoning.
I
As the preamble to Ordinance No. 75-1994 candidly acknowledges,
the council of the city of Erie enacted the restriction at issue
"for the purpose of limiting a recent increase in nude live
entertainment within the City."
Ante, at 290 (internal
quotation marks omitted). Prior to the enactment of the ordinance,
the dancers at Kandyland performed in the nude. As the Court
recognizes, after its enactment they can perform precisely the same
dances if they wear "pasties and G-strings."
Ante, at 294;
see also
ante, at 313, n. 2 (SOUTER, J., concurring in part
and dissenting in part). In both instances, the erotic messages
conveyed by the dancers to a willing audience are a form of
expression protected by the First Amendment.
Ante, at 289.1
Despite the similarity between the messages conveyed by the two
forms of dance, they are not identical.
If we accept Chief Judge Posner's evaluation of this art form,
see
Miller v.
South Bend, 904 F.2d
1081, 1089-1104
(CA7 1990) (en banc), the difference
between the two messages is significant. The plurality assumes,
however, that the difference in the content of the message
resulting from
1 Respondent does not contend that there is a constitutional
right to engage in conduct such as lap dancing. The message of
eroticism conveyed by the nudity aspect of the dance is quite
different from the issue of the proximity between dancer and
audience. Respondent's contention is not that Erie has focused on
lap dancers, see
ante, at 308 (SCALIA, J., concurring in
judgment), but that it has focused on the message conveyed by nude
dancing.
319
the mandated costume change is
"de minimis." Ante, at
294. Although I suspect that the patrons of Kandyland are more
likely to share Chief Judge Posner's view than the plurality's, for
present purposes I shall accept the assumption that the difference
in the message is small. The crucial point to remember, however, is
that whether one views the difference as large or small, nude
dancing still receives First Amendment protection, even if that
protection lies only in the "outer ambit" of that Amendment.
Ante, at 289. Erie's ordinance, therefore, burdens a message
protected by the First Amendment. If one assumes that the same
erotic message is conveyed by nude dancers as by those wearing
miniscule costumes, one means of expressing that message is banned;
2 if one assumes that the messages are different, one of those
messages is banned. In either event, the ordinance is a total
ban.
The plurality relies on the so-called "secondary effects" test
to defend the ordinance.
Ante, at 290-296. The present use
of that rationale, however, finds no support whatsoever in our
precedents. Never before have we approved the use of that doctrine
to justify a total ban on protected First Amendment expression. On
the contrary, we have been quite clear that the doctrine would not
support that end.
In
Young v.
American Mini Theatres, Inc., 427 U. S. 50 (1976), we
upheld a Detroit zoning ordinance that placed special restrictions
on the location of motion picture theaters that exhibited "adult"
movies. The "secondary effects" of the adult theaters on the
neighborhoods where they were located-lower property values and
increases in crime (especially prostitution) to name a
few-justified the burden im-
2 Although nude dancing might be described as one protected
"means" of conveying an erotic message, it does not follow that a
protected message has not been totally banned simply because there
are other, similar ways to convey erotic messages. See
ante,
at 292-293. A State's prohibition of a particular book, for
example, does not fail to be a total ban simply because other books
conveying a similar message are available.
320
posed by the ordinance.
Id., at 54, 71, and n. 34
(plurality opinion). Essential to our holding, however, was the
fact that the ordinance was "nothing more than a limitation on the
place where adult films may be exhibited" and did not limit the
size of the market in such speech.
Id., at 71; see also
id., at 61, 63, n. 18, 70, 71, n. 35. As Justice Powell
emphasized in his concurrence:
"At most the impact of the ordinance on [the First Amendment]
interests is incidental and minimal. Detroit has silenced no
message, has invoked no censorship, and has imposed no limitation
upon those who wish to view them. The ordinance is addressed only
to the places at which this type of expression may be presented, a
restriction that does not interfere with content. Nor is there any
significant overall curtailment of adult movie presentations, or
the opportunity for a message to reach an audience." Id., at
78-79.
See also
id., at 81, n. 4 ("[A] zoning ordinance that
merely specifies where a theater may locate, and that does not
reduce significantly the number or accessibility of theaters
presenting particular films, stifles no expression").
In
Renton v.
Playtime Theatres, Inc., 475 U. S. 41 (1986), we
upheld a similar ordinance, again finding that the "secondary
effects of such theaters on the surrounding community" justified a
restrictive zoning law.
Id., at 47 (emphasis deleted). We
noted, however, that "[t]he Renton ordinance, like the one in
American Mini Theatres, does not ban adult theaters
altogether," but merely "circumscribe[s] their choice as to
location."
Id., at 46, 48; see also
id., at 54 ("In
our view, the First Amendment requires ... that Renton refrain from
effectively denying respondents a reasonable opportunity to open
and operate an adult theater within the city ... "). Indeed, in
both
Renton and
American Mini Theatres, the zoning
ordinances were analyzed as mere "time,
321
place, and manner" regulations.3 See
Renton, 475 U. S.,
at
46; American Mini Theatres, 427 U. S., at 63, and n. 18;
id., at 82, n. 6. Because time, place, and manner
regulations must "leave open ample alternative channels for
communication of the information,"
Ward v.
Rock Against
Racism, 491 U. S. 781, 791 (1989), a total ban would
necessarily fail that test.4
And we so held in
Schad v.
Mount Ephraim, 452 U. S. 61 (1981).
There, we addressed a zoning ordinance that did not merely require
the dispersal of adult theaters, but prohibited
3 The plurality contends,
ante, at 295, that
Ward
v.
Rock Against Racism, 491 U. S. 781 (1989),
shows that we have used the secondary effects rationale to justify
more burdensome restrictions than those approved in
Renton
and
American Mini Theatres. That argument is unpersuasive
for two reasons. First, as in the two cases just mentioned, the
regulation in
Ward was as a time, place, and manner
restriction. See 491 U. S., at
791; id., at 804 (Marshall,
J., dissenting). Second, as discussed below,
Ward is not a
secondary effects case. See
infra, at 325-326.
4 We also held in
Renton that in enacting its adult
theater zoning ordinance, the city of Renton was permitted to rely
on a detailed study conducted by the city of Seattle that examined
the relationship between zoning controls and the secondary effects
of adult theaters. (It was permitted to rely as well on "the
'detailed findings' summarized" in an opinion of the Washington
Supreme Court to the same effect.) 475 U. S., at 51-52. Renton,
having identified the same problem in its own city as that
experienced in Seattle, quite logically drew on Seattle's
experience and adopted a similar solution. But if Erie is relying
on the Seattle study as well (as the plurality suggests,
ante, at 296-297), its use of that study is most peculiar.
After identifying a problem in its own city similar to that in
Seattle, Erie has implemented a solution (pasties and G-strings)
bearing no relationship to the efficacious remedy identified by the
Seattle study (dispersal through zoning).
But the city of Erie, of course, has not in fact pointed to any
study by anyone suggesting that the adverse secondary effects of
commercial enterprises featuring erotic dancing depends in the
slightest on the precise costume worn by the performers-it merely
assumes it to be so. See
infra, at 323-324. If the city is
permitted simply to assume that a slight addition to the dancers'
costumes will sufficiently decrease secondary effects, then
presumably the city can require more and more clothing as long as
any danger of adverse effects remains.
322
them altogether. In striking down that law, we focused precisely
on that distinction, holding that the secondary effects analysis
endorsed in the past did not apply to an ordinance that totally
banned nude dancing: "The restriction [in
Young v.
American Mini Theatres] did not affect the number of adult
movie theaters that could operate in the city; it merely dispersed
them. The Court did not imply that a municipality could ban all
adult theaters-much less all live entertainment or all nude
dancing-from its commercial districts citywide."
Id., at 71
(plurality opinion); see also
id., at 76;
id., at 77
(Blackmun, J., concurring) (joining plurality);
id., at 79
(Powell, J., concurring) (same).
The reason we have limited our secondary effects cases to zoning
and declined to extend their reasoning to total bans is clear and
straightforward: A dispersal that simply limits the places where
speech may occur is a minimal imposition, whereas a total ban is
the most exacting of restrictions. The State's interest in fighting
presumed secondary effects is sufficiently strong to justify the
former, but far too weak to support the latter, more severe
burden.5 Yet it is perfectly clear that in the present case-to use
Justice Powell's metaphor in
American Mini Theatres-the city
of Erie has totally silenced a message the dancers at Kandyland
want to convey. The fact that this censorship may have a laudable
ulterior purpose cannot mean that censorship is not censorship. For
these reasons, the Court's holding rejects the explicit reasoning
in
American Mini Theatres and
Renton and the express
holding in
Schad.
The Court's use of the secondary effects rationale to permit a
total ban has grave implications for basic free speech principles.
Ordinarily, laws regulating the primary effects of speech, i.
e., the intended persuasive effects caused by the
5 As the plurality recognizes by quoting my opinion in
Young v.
American Mini Theatres, Inc., 427 U. S. 50, 70 (1976),
see
ante, at 294, "the First Amendment will not tolerate the
total suppression of erotic materials that have some artistic
value," though it will permit zoning regulations.
323
speech, are presumptively invalid. Under today's opinion, a
State may totally ban speech based on its secondary effects-which
are defined as those effects that "happen to be associated" with
speech,
Boos v.
Barry, 485 U. S. 312, 320321
(1988); see
ante, at 291-yet the regulation is not
presumptively invalid. Because the category of effects that "happen
to be associated" with speech includes the narrower subset of
effects caused by speech, to day's holding has the effect of
swallowing whole a most fundamental principle of First Amendment
jurisprudence.
II
The plurality's mishandling of our secondary effects cases is
not limited to its approval of a total ban. It compounds that error
by dramatically reducing the degree to which the State's interest
must be furthered by the restriction imposed on speech, and by
ignoring the critical difference between secondary effects caused
by speech and the incidental effects on speech that may be caused
by a regulation of conduct.
In what can most delicately be characterized as an enormous
understatement, the plurality concedes that "requiring dancers to
wear pas ties and G-strings may not greatly reduce these secondary
effects."
Ante, at 301. To believe that the mandatory
addition of pasties and a G-string will have
any kind of
noticeable impact on secondary effects requires nothing short of a
titanic surrender to the implausible. It would be more accurate to
acknowledge, as JUSTICE SCALIA does, that there is no reason to
believe that such a requirement "will at all reduce the tendency of
establishments such as Kandyland to attract crime and prostitution,
and hence to foster sexually transmitted disease."
Ante, at
310 (opinion concurring in judgment); see also
ante, at 313,
n. 2 (SOUTER, J., concurring in part and dissenting in part).
Nevertheless, the plurality concludes that the "less stringent"
test announced in
United States v.
O'Brien, 391 U. S. 367 (1968),
"requires only that the regulation further the interest in
324
combating such effects,"
ante, at 301; see also
ante, at 289. It is one thing to say, however, that
O'Brien is more lenient than the "more demanding standard"
we have imposed in cases such as
Texas v.
Johnson,
491 U. S. 397
(1989). See
ante, at 289. It is quite another to say that
the test can be satisfied by nothing more than the mere possibility
of
de minimis effects on the neighborhood.
The plurality is also mistaken in equating our secondary effects
cases with the "incidental burdens" doctrine applied in cases such
as
O'Brien; and it aggravates the error by invoking the
latter line of cases to support its assertion that Erie's ordinance
is unrelated to speech. The incidental burdens doctrine applies
when "'speech' and 'non speech' elements are combined in the same
course of conduct," and the government's interest in regulating the
latter justifies incidental burdens on the former.
O'Brien,
391 U. S., at 376. Secondary effects, on the other hand, are
indirect consequences of protected speech and may justify
regulation of the places where that speech may occur. See
American Mini Theatres, 427 U. S., at 71, n. 34 ("[A]
concentration of 'adult' movie theaters causes the area to
deteriorate and become a focus of crime").6 When a State enacts a
regulation, it might focus on the secondary effects of speech as
its aim, or it might concentrate on non speech related concerns,
having no thoughts at all with respect to how its regulation will
affect speech-and only later, when the regulation is found to
burden speech, justify the imposition as an unintended incidental
consequence.7 But those interests are not the
6 A secondary effect on the neighborhood that "happen[s] to be
associated with" a form of speech is, of course, critically
different from "the direct impact of speech on its audience."
Boos v.
Barry, 485 U. S. 312, 320-321
(1988). The primary effect of speech is the persuasive effect of
the message itself.
7 In fact, the very notion of focusing in on incidental burdens
at the time of enactment appears to be a contradiction in terms.
And if it were not the case that there is a difference between laws
aimed at secondary effects and general bans incidentally burdening
speech, then one wonders why
325
same, and the plurality cannot ignore their differences and
insist that both aims are equally unrelated to speech simply
because Erie might have "recogniz[ed]" that it could possibly have
had either aim in mind. See
ante, at 295.8 One can think of
an apple and an orange at the same time; that does not turn them
into the same fruit.
Of course, the line between governmental interests aimed at
conduct and unrelated to speech, on the one hand, and interests
arising out of the effects of the speech, on the other, may be
somewhat imprecise in some cases. In this case, however, we need
not wrestle with any such difficulty because Erie has expressly
justified its ordinance with reference to secondary effects.
Indeed, if Erie's concern with the effects of the message were
unrelated to the message itself, it is strange that the only means
used to combat those effects is the suppression of the message.9
For these reasons, the plurality's argument that "this case is
similar to
O'Brien," ante, at 291; see also
ante, at
294, is quite wrong, as are its
JUSTICES SCALIA and SOUTER adopted such strikingly different
approaches in
Barnes v.
Glen Theatre, Inc., 501 U. S. 560 (1991).
8 I frankly do not understand the plurality's declaration that a
State's interest in the secondary effects of speech that are
"associated" with the speech are not "related" to the speech.
Ante, at 296. See,
e. g., Webster's Third New
International Dictionary 132 (1966) (defining "associate" as
"closely related"). Sometimes, though, the plurality says that the
secondary effects are "caused" by the speech, rather than merely
"associated with" the speech. See,
e. g., ante, at 291, 293,
297, 300. If that is the definition of secondary effects the
plurality adopts, then it is even more obvious that an interest in
secondary effects is related to the speech at issue. See
Barnes, 501 U. S., at 585-586 (SOUTER, J., concurring in
judgment) (secondary effects are not related to speech because
their connection to speech is only one of correlation, not
causation).
9 As Justice Powell said in his concurrence in
Young v.
American Mini Theatres, 427 U. S., at 82, n. 4: "[H]ad
[Detroit] been concerned with restricting the message purveyed by
adult theaters, it would have tried to close them or restrict their
number rather than circumscribe their choice as to location." Quite
plainly, Erie's total ban evinces its concern with the message
being regulated.
326
citations to
Clark v.
Community for Creative
Non-Violence, 468
U. S. 288 (1984), and
Ward v.
Rock Against Racism,
491 U. S. 781 (1989),
ante, at 293-295, neither of which
involved secondary effects. The plurality cannot have its cake and
eat it too-either Erie's ordinance was not aimed at speech and the
plurality may attempt to justify the regulation under the
incidental burdens test, or Erie has aimed its law at the secondary
effects of speech, and the plurality can try to justify the law
under that doctrine. But it cannot conflate the two with the
expectation that Erie's interests aimed at secondary effects will
be rendered unrelated to speech by virtue of this doctrinal
polyglot.
Correct analysis of the issue in this case should begin with the
proposition that nude dancing is a species of expressive conduct
that is protected by the First Amendment. As Chief Judge Posner has
observed, nude dancing fits well within a broad, cultural tradition
recognized as expressive in nature and entitled to First Amendment
protection. See 904 F. 2d, at 1089-1104; see also Note, 97 Colum.
L. Rev. 1844 (1997). The nudity of the dancer is both a component
of the protected expression and the specific target of the
ordinance. It is pure sophistry to reason from the premise that the
regulation of the nudity component of nude dancing is unrelated to
the message conveyed by nude dancers. Indeed, both the text of the
ordinance and the reasoning in the plurality's opinion make it
pellucidly clear that the city of Erie has prohibited nude dancing
"precisely because of its communicative attributes." Barnes,
501 U. S., at 577 (SCALIA, J., concurring in judgment) (emphasis in
original); see
id., at 596 (White, J., dissenting).
III
The censorial purpose of Erie's ordinance precludes reliance on
the judgment in
Barnes as sufficient support for the Court's
holding today. Several differences between the Erie ordinance and
the statute at issue in
Barnes belie the plurality's
assertion that the two laws are "almost identical."
327
Ante, at 289. To begin with, the preamble to Erie's
ordinance candidly articulates its agenda, declaring:
"Council specifically wishes to adopt the concept of Public
Indecency prohibited by the laws of the State of Indiana, which was
approved by the U. S. Supreme Court in Barnes vs. Glen Theatre
Inc., ... for the purpose of limiting a recent increase in nude
live entertainment within the City." App. to Pet. for Cert. 42a
(emphasis added); see also ante, at 290.10
As its preamble forthrightly admits, the ordinance's "purpose"
is to "limi[t]" a protected form of speech; its invocation of
Barnes cannot obliterate that professed aim.ll
Erie's ordinance differs from the statute in
Barnes in
another respect. In
Barnes, the Court expressly observed
that the Indiana statute had not been given a limiting construction
by the Indiana Supreme Court. As presented to this Court, there was
nothing about the law itself that would confine its application to
nude dancing in adult entertainment establishments. See 501 U. S.,
at 564, n. 1 (discussing Indiana Supreme Court's lack of a limiting
construction); see also
id., at 585, n. 2 (SOUTER, J.,
concurring in judgment).
10 The preamble also states: "[T]he Council of the City of Erie
has [found] ... that certain lewd, immoral activities carried on in
public places for profit ... lead to the debasement of both women
and men .... " App. to Pet. for Cert. 41a.
11 Relying on five words quoted from the Supreme Court of
Pennsylvania, the plurality suggests that I have misinterpreted
that court's reading of the preamble.
Ante, at 290. What
follows, however, is a more complete statement of what that court
said on this point:
"We acknowledge that one of the purposes of the Ordinance is to
combat negative secondary effects. That, however, is not its only
goal. Inextricably bound up with this stated purpose is an
unmentioned purpose that directly impacts on the freedom of
expression: that purpose is to impact negatively on the erotic
message of the dance .... We believe ... that the stated purpose
for promulgating the Ordinance is inextricably linked with the
content-based motivation to suppress the expressive nature of nude
dancing." 553 Pa. 348, 359, 719 A. 2d 273, 279 (1998).
328
Erie's ordinance, however, comes to us in a much different
posture. In an earlier proceeding in this case, the Court of Common
Pleas asked Erie's counsel "what effect would this ordinance have
on theater ... productions such as Equus, Hair, O[h!] Calcutta[!]?
Under your ordinance would these things be prevented ... ?" Counsel
responded: "No, they wouldn't, Your Honor." App.53.12 Indeed, as
stipulated in the record, the city permitted a production of
Equus to proceed without prosecution, even after the ordinance was
in effect, and despite its awareness of the nudity involved in the
production.
Id., at 84.13 Even if, in light of its broad
applicability, the statute in
Barnes was not aimed at a
particular form of speech, Erie's ordinance is quite different. As
presented to us, the ordinance is deliberately targeted at
Kandyland's type of nude dancing (to the exclusion of plays like
Equus), in terms of both its applicable scope and the city's
enforcement.14
12 In my view, Erie's categorical response forecloses JUSTICE
SCALIA'S assertion that the city's position on Equus and Hair was
limited to "[o]ne instance," where "the city was [not] aware of the
nudity," and "no one had complained."
Ante, at 308 (opinion
concurring in judgment). Nor could it be contended that selective
applicability by stipulated enforcement should be treated
differently from selective applicability by statutory text. See
Barnes, 501 U. S., at 574 (SCALIA, J., concurring in
judgment) (selective enforcement may affect a law's generality).
Were it otherwise, constitutional prohibitions could be
circumvented with impunity.
13 The stipulation read: "The play, 'Equus' featured frontal
nudity and was performed for several weeks in October/November 1994
at the Roadhouse Theater in downtown Erie with no efforts to
enforce the nudity prohibition which became effective during the
run of the play."
14JUSTICE SCALIA argues that Erie might have carved out an
exception for Equus and Hair because it guessed that this Court
would consider them protected forms of expression, see
Southeastern Promotions, Ltd. v.
Conrad, 420 U. S. 546, 550,
557-558 (1975) (holding that Hair, including the "group nudity and
simulated sex" involved in the production, is protected speech); in
his view, that makes the distinction unobjectionable and renders
the ordinance no less of a general law.
Ante, at 309
(opinion concurring in judgment). This argument appears to
contradict his earlier definition of a general law: "A law is
'general' ... if it regulates conduct
329
This narrow aim is confirmed by the expressed views of the Erie
City Councilmembers who voted for the ordinance. The four city
councilmembers who approved the measure (of the six total
councilmembers) each stated his or her view that the ordinance was
aimed specifically at nude adult entertainment, and not at more
mainstream forms of entertainment that include total nudity, nor
even at nudity in general. One lawmaker observed: "We're not
talking about nudity.We're not talking about the theater or art ...
We're talking about what is indecent and immoral... We're not
prohibiting nudity, we're prohibiting nudity when it's used in a
lewd and immoral fashion." App. 39. Though not quite as succinct,
the other councilmembers expressed similar convictions. For
example, one member illustrated his understanding of the aim of the
law by contrasting it with his recollection about high school
students swimming in the nude in the school's pool. The ordinance
was not intended to cover those incidents of nudity: "But what I'm
getting at is [the swimming] wasn't indecent, it wasn't an immoral
thing, and
without regard to whether that conduct is expressive."
Barnes v.
Glen Theatre, Inc., 501 U. S., at 576, n. 3
(opinion concurring in judgment). If the ordinance regulates
conduct (public nudity), it does not do so without regard to
whether the nudity is expressive if it exempts the public nudity in
Hair
precisely "because of its expressive content."
Ante, at 309, n. 6 (opinion concurring in judgment).
Moreover, if Erie exempts Hair because it wants to avoid a conflict
with the First Amendment (rather than simply to exempt instances of
nudity it finds inoffensive), that rationale still does not explain
why Hair is exempted but Kandyland is not, since
Barnes held
that both are constitutionally protected.
JUSTICE SCALIA also states that even if the ordinance singled
out nude dancing, he would not strike down the law unless the
dancing was singled out because of its message.
Ante, at
310. He opines that here, the basis for singling out Kandyland is
morality.
Ibid. But since the "morality" of the public
nudity in Hair is left untouched by the ordinance, while the
"immorality" of the public nudity in Kandyland is singled out, the
distinction cannot be that "nude public dancing
itself is
immoral."
Ibid. (emphasis in original). Rather, the only
arguable difference between the two is that one's message is more
immoral than the other's.
330
yet there was nudity."
Id., at 42. The same lawmaker then
disfavorably compared the nude swimming incident to the activities
that occur in "some of these clubs" that exist in Erie-clubs that
would be covered by the law.
Ibid.15 Though such comments
could be consistent with an interest in a general prohibition of
nudity, the complete absence of commentary on that broader
interest, and the councilmembers' exclusive focus on adult
entertainment, is evidence of the ordinance's aim. In my view, we
need not strain to find consistency with more general purposes when
the most natural reading of the record reflects a near obsessive
preoccupation with a single target of the law.16
The text of Erie's ordinance is also significantly different
from the law upheld in
Barnes. In
Barnes, the statute
defined "nudity" as "the showing of the human male or female
15 Other members said their focus was on "bottle clubs," and the
like, App. 43, and attempted to downplay the effect of the
ordinance by acknowledging that "the girls can wear thongs or a
G-string and little pasties that are smaller than a diamond."
Ibid. Echoing that focus, another member stated that
"[t]here still will be adult entertainment in this town, only it
will be in a little different form."
Id., at 47.
16 The plurality dismisses this evidence, declaring that it
"will not strike down an otherwise constitutional statute on the
basis of an alleged illicit motive."
Ante, at 292 (citing
United States v.
O'Brien, 391 U. S. 367, 382383
(1968);
Renton v.
Playtime Theatres, Inc., 475 U. S. 41, 47-48
(1986)). First, it is worth pointing out that this doctrinaire
formulation of
O'Brien's cautionary statement is overbroad.
See generally L. Tribe, American Constitutional Law § 12-5, pp.
819-820 (2d ed. 1988). Moreover,
O'Brien itself said only
that we would not strike down a law "on the
assumption that
a wrongful purpose or motive has caused the power to be exerted,"
391 U. S., at 383 (emphasis added; internal quotation marks
omitted), and that statement was due to our recognition that it is
a "hazardous matter" to determine the actual intent of a body as
large as Congress "on the basis of what fewer than a handful of
Congressmen said about [a law],"
id., at 384. Yet neither
consideration is present here. We need not base our inquiry on an
"assumption," nor must we infer the collective intent of a large
body based on the statements of a few, for we have in the record
the actual statements of all the city councilmembers who voted in
favor of the ordinance.
331
genitals" (and certain other regions of the body) "with less
than a fully opaque covering." 501 U. S., at 569, n. 2. The Erie
ordinance duplicates that definition in all material respects, but
adds the following to its definition of "[n]udity":
"'[T]he exposure of any device, costume, or covering which
gives the appearance of or simulates the genitals, pubic hair,
natal cleft, perineum anal region or pubic hair region; or the
exposure of any device worn as a cover over the nipples and/or
areola of the female breast, which device simulates and gives
the realistic appearance of nipples and/or areola.'"
Ante, at 283284, n. (emphasis added).
Can it be doubted that this out-of-the-ordinary definition of
"nudity" is aimed directly at the dancers in establishments such as
Kandyland? Who else is likely to don such garments? 17 We should
not stretch to embrace fanciful explanations when the most natural
reading of the ordinance unmistakably identifies its intended
target.
It is clear beyond a shadow of a doubt that the Erie ordinance
was a response to a more specific concern than nudity in general,
namely, nude dancing of the sort found in Kandyland.18 Given that
the Court has not even tried to defend
17 Is it seriously contended (as would be necessary to sustain
the ordinance as a general prohibition) that, when crafting this
bizarre definition of "nudity," Erie's concern was with the use of
simulated nipple covers on "nude beaches and [by otherwise]
unclothed purveyors of hot dogs and machine tools"?
Barnes,
501 U. S., at 574 (SCALIA, J., concurring in judgment); see also
ante, at 308 (SCALIA, J., concurring in judgment). It is
true that one might
conceivably imagine that is Erie's aim.
But it is far more likely that this novel definition was written
with the Kandyland dancers and the like in mind, since they are the
only ones covered by the law (recall that plays like Equus are
exempted from coverage) who are likely to utilize such
unconventional clothing.
18 The plurality states that Erie's ordinance merely "replaces
and updates provisions of an 'Indecency and Immorality' ordinance"
from the mid-19th century, just as the statute in
Barnes
did.
Ante, at 290. First of all, it is not clear that this
is correct. The record does indicate that
332
the ordinance's total ban on the ground that its censorship of
protected speech might be justified by an overriding state
interest, it should conclude that the ordinance is patently
invalid. For these reasons, as well as the reasons set forth in
Justice White's dissent in
Barnes, I respectfully
dissent.
Erie's Ordinance No. 75-1994 updates an older ordinance of
similar import. Unfortunately, that old regulation is not in the
record. Consequently, whether the new ordinance merely "replaces"
the old one is a matter of debate. From statements of one
councilmember, it can reasonably be inferred that the old ordinance
was merely a residential zoning restriction, not a total ban. See
App. 43. If that is so, it leads to the further question why Erie
felt it necessary to shift to a total ban in 1994.
But even if the plurality's factual contention is correct, it
does not undermine the points I have made in the text. In
Barnes, the point of noting the ancient pedigree of the
Indiana statute was to demonstrate that its passage antedated the
appearance of adult entertainment venues, and therefore could not
have been motivated by the presence of those establishments. The
inference supposedly rebutted in
Barnes stemmed from the
timing of the enactment. Here, however, the inferences I
draw depend on the text of the ordinance, its preamble, its scope
and enforcement, and the comments of the councilmembers. These do
not depend on the timing of the ordinance's enactment.
Comments
Be the first to comment
Leave a Comment