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
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."
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
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
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 §§ 1(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.
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
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,
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
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
The Pennsylvania Supreme Court construed this language to mean that one purpose of the ordinance was "to combat negative secondary effects." Ibid.
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 message
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 productions— is 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
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.
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
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 bandshell, 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
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.
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 entertainment
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 establishments
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
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 effects
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
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 interest— is 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
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.
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."
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
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
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 III'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
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
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
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 sufficient
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.
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
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.
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.
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.
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.
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
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.
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
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.
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
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 imposed
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,
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
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.
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
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 pasties 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
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 `nonspeech' 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").
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.
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).
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."
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.
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).
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
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?
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.
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.
"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, 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 1(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 breast-feeding an infant under two (2) years of age."
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.
"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).
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.
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.