City of Erie v. Pap's A. M./Dissent Stevens

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 '''[p. 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. 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 '''[p. 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; 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- '''[p. 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, [p. 321] place, and manner" regulations. 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.

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 '''[p. 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. 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 '''[p. 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, 320–321 (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, today'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 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 [p. 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 '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"). When a State enacts a regulation, it might focus on the secondary effects of speech as its aim, or it might concentrate on nonspeech 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. But those interests are not the '''[p. 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. 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. 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 [p. 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." '''[p. 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."

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). '''[p. 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. 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. 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.

'''[p. 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 '''[p. 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.'' 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.

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 '''[p. 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 283–284, 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? 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. Given that the Court has not even tried to defend '''[p. 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.