CITY OF ERIE et al. v. PAP’S A. M., tdba “KANDYLAND”

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
277 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 perma-
nent 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 vio-
lated 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 con-
cluded 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

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
278 ERIE v. PAP’S A. M.
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 de-
clared moot. And it is the defendant city that seeks to invoke the fed-
eral 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 ongo-
ing 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 inter-
est 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 Ken-
nedy, 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 ex-
pressive condition, nude dancing of the type at issue here is expressive
conduct that falls within the outer ambit of the First Amendment’s pro-
tection. See, e. g., Barnes, supra, at 565–566 (plurality opinion). What
level of scrutiny applies is determined by whether the ordinance is re-
lated 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 con-
tent, 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

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
279 Cite as: 529 U. S. 277 (2000)
Syllabus
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 second-
ary effects. That is, the ordinance is aimed at combating crime and
other negative secondary effects caused by the presence of adult enter-
tainment 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 neverthe-
less 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 ex-
pression that occurs when the last stitch is dropped, the dancers at Kan-
dyland and other such establishments are free to perform wearing past-
ies 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 Cre-
ative 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 or-
dinance 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 in-
terests of regulating conduct through a public nudity ban and of combat-
ing 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

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
280 ERIE v. PAP’S A. M.
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 es-
tablishment 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 activi-
ties 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 judg-
ments 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 what-
soever 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 ef-
fects, 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 con-
duct, and any incidental impact on the expressive element of nude danc-
ing 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 Pennsyl-
vania Supreme Court’s decision must be reversed, but disagreed with
the mode of analysis that should be applied. Erie self-consciously mod-
eled its ordinance on the public nudity statute upheld in Barnes v. Glen
Theatre, Inc., 501 U. S. 560, calculating (one would have supposed rea-
sonably) 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

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
281 Cite as: 529 U. S. 277 (2000)
Syllabus
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 pre-
amble explains the ordinance’s purpose, in part, as limiting a recent
increase in nude live entertainment, that city councilmembers in sup-
porting 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 objection-
able 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 Con-
stitution 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.

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
282 ERIE v. PAP’S A. M.
Opinion of the Court
John H. Weston argued the cause for respondent. With
him on the briefs were G. Randall Garrou, Philip B. Fried-
man, 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 ban-
ning 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. McGeady, Bruce A.
Taylor, and Janet M. LaRue; and for the National Family Legal Founda-
tion 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 Cen-
ter 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 Solic-
itor, 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 Gra-
ham of Utah, and Mark L. Earley of Virginia; and for Orange County,
Florida, by Joel D. Prinsell.

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
283 Cite as: 529 U. S. 277 (2000)
Opinion of the Court
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 Penn-
sylvania 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 vio-
lated 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 Penn-
sylvania 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 Pennsyl-
vania 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 Pennsylva-
nia 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,

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
284 ERIE v. PAP’S A. M.
Opinion of the Court
Respondent Pap’s, a Pennsylvania corporation, operated an
establishment in Erie known as “Kandyland” that featured
totally nude erotic dancing performed by women. To com-
ply with the ordinance, these dancers must wear, at a min-
imum, “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 re-
versed, concluding that the public nudity provisions of the
ordinance violated respondent’s rights to freedom of expres-
sion 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 Amend-
ment. 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, res-
taurants, 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 breastfeeding an
infant under two (2) years of age.”

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
285 Cite as: 529 U. S. 277 (2000)
Opinion of the Court
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 govern-
ment interest in enacting the ordinance was content neutral,
explaining that regulations that are unrelated to the sup-
pression 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 ordi-
nance 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 ma-
jority 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

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
286 ERIE v. PAP’S A. M.
Opinion of the Court
conducted an independent examination of the ordinance to
ascertain whether it was related to the suppression of ex-
pression. The court concluded that although one of the pur-
poses 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 nu-
dity 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 iden-
tical statute in Barnes, the ordinance should have been up-
held under the United States Constitution. 553 Pa., at 364,
719 A. 2d, at 281. They reached the same result as the ma-
jority, 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.

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
287 Cite as: 529 U. S. 277 (2000)
Opinion of the Court
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 justiciabil-
ity 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 reason-
able 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 re-
lief whatever’ to [the] prevailing party,” Church of Scien-
tology 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 Respond-
ent.” 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 establish-
ment 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

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
288 ERIE v. PAP’S A. M.
Opinion of the Court
operation. Several Members of this Court can attest, how-
ever, 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 in-
fluenced 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. Pas-
tore, 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 cessa-
tion 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 provi-
sions 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 in-
terest in resuming operations, it has an interest in preserv-
ing the judgment of the Pennsylvania Supreme Court. Our
interest in preventing litigants from attempting to manipu-
late 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,

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
289 Cite as: 529 U. S. 277 (2000)
Opinion of O’Connor, J.
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 danc-
ing 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 ordi-
nance 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 sup-
pression 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 gov-
ernment 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 frame-
work set forth in O’Brien for content-neutral restrictions on
symbolic speech.
The city of Erie argues that the ordinance is a content-
neutral restriction that is reviewable under O’Brien because
the ordinance bans conduct, not speech; specifically, public

529US1 Unit: $U42 [10-11-01 11:58:07] PAGES PGT: OPIN
290 ERIE v. PAP’S A. M.
Opinion of O’Connor, J.
nudity. Respondent counters that the ordinance targets
nude dancing and, as such, is aimed specifically at suppress-
ing expression, making the ordinance a content-based re-
striction 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” or-
dinance that has been on the books since 1866, predating the
prevalence of nude dancing establishments such as Kandy-
land. 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 inter-
preted that language, however. In the preamble to the or-
dinance, 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 ad-
versely impacts and threatens to impact on the public
health, safety and welfare by providing an atmosphere
conducive to violence, sexual harassment, public intoxi-
cation, 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
291 Cite as: 529 U. S. 277 (2000)
Opinion of O’Connor, J.
As Justice Souter noted in Barnes, “on its face, the gov-
ernmental interest in combating prostitution and other crim-
inal 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 noth-
ing else.” 391 U. S., at 382. In other words, the Govern-
ment regulation prohibiting the destruction of draft cards
was aimed at maintaining the integrity of the Selective Serv-
ice System and not at suppressing the message of draft re-
sistance 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 es-
tablishments 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 audi-
ence of watching nude erotic dancing, but rather the second-
ary 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 establish-
ments, the court concluded that the ordinance was never-
theless 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-

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
292 ERIE v. PAP’S A. M.
Opinion of O’Connor, J.
sage of the dance. Because the Pennsylvania court agreed
with Justice White’s approach, it concluded that the ordi-
nance 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 pasties and G-strings but forbids
nude dancing, it is precisely because of the distinctive, ex-
pressive content of the nude dancing performances at issue
in this case that the State seeks to apply the statutory prohi-
bition.” 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 state-
ments 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 con-
stitutional 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 ade-
quate 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 registra-
tion cards in O’Brien, where the Government sought to pre-
vent 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
293 Cite as: 529 U. S. 277 (2000)
Opinion of O’Connor, J.
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 regula-
tion in O’Brien as having enacted a total ban on expression.
Instead, the Court recognized that the regulation against de-
stroying 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 jus-
tification was unrelated to the suppression of O’Brien’s anti-
war 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 re-
lated 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 ap-
plied 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 ex-
pressive conduct, the Court concluded that the Government
interest in conserving park property was unrelated to the
demonstrators’ message about homelessness. Id., at 299.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
294 ERIE v. PAP’S A. M.
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 mini-
mal 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 tol-
erate the total suppression of erotic materials that have
some arguably artistic value, it is manifest that society’s in-
terest in protecting this type of expression is of a wholly
different, and lesser, magnitude than the interest in untram-
meled 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 second-
ary effects, then de minimis intrusions on expression such
as those at issue here cannot be sufficient to render the ordi-
nance 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 reg-
ulation is content neutral if it can be justified without refer-
ence 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 “sec-
ondary” effects that are unrelated to the suppression of ex-
pression. See, e. g., Ward v. Rock Against Racism, supra,
at 791–792 (noting that “[t]he principal justification for the

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
295 Cite as: 529 U. S. 277 (2000)
Opinion of O’Connor, J.
sound-amplification guideline is the city’s desire to control
noise levels at bandshell events, in order to retain the char-
acter 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 noth-
ing objectionable about a city passing a general ordinance to
ban public nudity (even though such a ban may place inciden-
tal burdens on some protected speech) and at the same time
recognizing that one specific occurrence of public nudity—
nude 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 enter-
prise. 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”). More-
over, Erie’s ordinance does not effect a “total ban” on pro-
tected 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 regula-
tion as content neutral because the ordinance was aimed at
the secondary effects of adult theaters, a justification unre-
lated to the content of the adult movies themselves. Id., at

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
296 ERIE v. PAP’S A. M.
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 entertain-
ment establishments like Kandyland is unrelated to the sup-
pression 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 ordi-
nance 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 “con-
duct new studies or produce evidence independent of that
already generated by other cities” to demonstrate the prob-
lem 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 The-
atres, Inc., supra, at 51–52. Because the nude dancing at
Kandyland is of the same character as the adult entertain-

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
297 Cite as: 529 U. S. 277 (2000)
Opinion of O’Connor, J.
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 ef-
fects. 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 pres-
ence 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 regu-
lations that strike closer to the core of First Amendment
values, we have accepted a state or local government’s rea-
sonable 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 de-
basement of both women and men, promote violence, public
intoxication, prostitution and other serious criminal activ-
ity.” 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-

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
298 ERIE v. PAP’S A. M.
Opinion of O’Connor, J.
ments in Erie, and can make particularized, expert judg-
ments about the resulting harmful secondary effects. Anal-
ogizing 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 judg-
ment 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 in-
structive. The Court there did not require evidence that
the integrity of the Selective Service System would be jeop-
ardized by the knowing destruction or mutilation of draft
cards. It simply reviewed the Government’s various admin-
istrative 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
299 Cite as: 529 U. S. 277 (2000)
Opinion of O’Connor, J.
who knowingly and willfully destroy or mutilate them.” 391
U. S., at 378–380. There was no study documenting in-
stances 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 sys-
tem. The fact that this sort of leeway is appropriate in a
case involving conduct says nothing whatsoever about its ap-
propriateness 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 es-
tablishments 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 differ-
ent, Justice Souter contends, because in O’Brien “there
could be no doubt” that a regulation prohibiting the destruc-
tion of draft cards would alleviate the harmful secondary ef-

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
300 ERIE v. PAP’S A. M.
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 sub-
stantial government interest and whether the regulation fur-
thers 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 ef-
fects 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 draft-
ing our citizens into the military is “fraught” with more emo-
tionalism than the subject of regulating nude dancing. Ibid.
Justice Souter next hypothesizes that the reason we can-
not accept Erie’s conclusion is that, since the question
whether these secondary effects occur is “amenable to empir-
ical 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 of-
fered by an amicus curiae to show that nude dancing estab-
lishments do not cause secondary effects). In Nixon, how-
ever, 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
301 Cite as: 529 U. S. 277 (2000)
Opinion of O’Connor, J.
ban on such nude dancing would further Erie’s interest in
preventing such secondary effects. To be sure, requiring
dancers to wear pasties and G-strings may not greatly re-
duce 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 cho-
sen 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 re-
striction 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 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 Ken-
nedy, 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, how-
ever, 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
302 ERIE v. PAP’S A. M.
Scalia, J., concurring in judgment
means analysis is not required. See Ward, 491 U. S., at 798–
799, n. 6.
We hold, therefore, that Erie’s ordinance is a content-
neutral regulation that is valid under O’Brien. Accordingly,
the judgment of the Pennsylvania Supreme Court is re-
versed, 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 petition-
ers 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 Kan-
dyland 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 individu-
als involved in the nude dancing business,” “maintain[s] any
contacts in the adult entertainment business,” “has any cur-
rent 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 inten-
tion 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-

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
303 Cite as: 529 U. S. 277 (2000)
Scalia, J., concurring in judgment
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 af-
fidavit, Pap’s ceased doing business at Kandyland, and the
premises were sold to an independent developer, in 1998—
the 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 in-
crease his chances of preserving his judgment in the statisti-
cally 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 other-
wise—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 opposi-
tion 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
304 ERIE v. PAP’S A. M.
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 em-
ployee who had sued to enjoin enforcement of an amendment
to the Arizona Constitution making English that State’s of-
ficial language, had resigned her public-sector employment.
We held the case moot and, since the mootness was attribut-
able to the “ ‘unilateral action of the party who prevailed in
the lower court,’ ” we followed our usual practice of vacat-
ing 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 tre´s 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 career—
or 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 con-
tested. Those pertaining to the sale of Kandyland and the current nonin-
volvement 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
305 Cite as: 529 U. S. 277 (2000)
Scalia, J., concurring in judgment
Court of Appeals. Id., at 72 (quoting U. S. Bancorp Mort-
gage Co. v. Bonner Mall Partnership, 513 U. S. 18, 23 (1994)).
The rub here is that this case comes to us on writ of certio-
rari 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 Pennsylva-
nia 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 opera-
tions in the future, and not only against other nude dancing
establishments, but against anyone who appears nude in pub-
lic, 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 regard-
ing 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 chal-
lenge, 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
306 ERIE v. PAP’S A. M.
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 quota-
tion 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 provi-
sion, 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 Arti-
cle III’s standing requirements were satisfied on writ of cer-
tiorari 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 ju-
risdiction 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 par-
ties 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 in-
jury, causation, and redressability may be satisfied solely by

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
307 Cite as: 529 U. S. 277 (2000)
Scalia, J., concurring in judgment
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 con-
cluding 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 ad-
dress the merits, I will do so briefly as well. I agree that
the decision of the Pennsylvania Supreme Court must be re-
versed, 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 Amend-
ment scrutiny, but because, as a general law regulating con-
duct 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
308 ERIE v. PAP’S A. M.
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 act—
irrespective of whether it is engaged in for expressive pur-
poses—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 expres-
sion rather than public nakedness. As far as appears (and
as seems overwhelmingly likely), the preamble, the council-
members’ comments, and the chosen definition of the prohib-
ited 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 stipu-
lated 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 Ste-
vens’ 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 pro-
duction that prosecutorial discretion might reasonably have

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
309 Cite as: 529 U. S. 277 (2000)
Scalia, J., concurring in judgment
“grandfathered”—does not render this ordinance discrimina-
tory 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 Constitu-
tional 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 over-
breadth 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 ordi-
nance 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 coun-
sel’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 mean-
ing 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 interpreta-
tion that would carve out such exceptions to the extent the Constitution
required them. Contrary to Justice Stevens’ view, ibid., I do not be-
lieve 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
310 ERIE v. PAP’S A. M.
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 pro-
hibits conduct precisely because of its communicative attri-
butes.” Barnes, 501 U. S., at 577 (emphasis deleted). Here,
even if one hypothesizes that the city’s object was to sup-
press 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 skepti-
cal, 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 tradi-
tional 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 decid-
ing this case. Erie’s stated interest in combating the sec-
ondary 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 cur-
rent record allows us to say that the city has made a suffi-

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
311 Cite as: 529 U. S. 277 (2000)
Opinion of Souter, J.
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, how-
ever, 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 sat-
isfy 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 in-
stitution 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 ana-
lyzed 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
312 ERIE v. PAP’S A. M.
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 Tele-
vision 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 en-
quiry into the acceptability of the Government’s regulations
as one that turned on whether they “were designed to ad-
dress a real harm, and whether those provisions will allevi-
ate 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. Play-
time 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
313 Cite as: 529 U. S. 277 (2000)
Opinion of Souter, J.
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 be-
tween adult theaters and residential zones, churches, parks,
or schools. See 475 U. S., at 44. The city “held public hear-
ings, reviewed the experiences of Seattle and other cities,
and received a report from the City Attorney’s Office advis-
ing as to developments in other cities.” Ibid. We found
that Renton’s failure to conduct its own studies before enact-
ing 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 demonstra-
tion 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 else-
where is germane to the measure under consideration and
actually relied upon. I will assume, further, that the reli-
ance 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 ob-
servation 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
314 ERIE v. PAP’S A. M.
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 specu-
lative 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 ordi-
nance’s preamble asserting that over the course of more than
a century the city council had expressed “findings” of detri-
mental secondary effects flowing from lewd and immoral
profitmaking activity in public places. But however accu-
rate 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 rec-
ognizes 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 eviden-
tiary 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 recon-
cile competing policies. See Chevron U. S. A. Inc. v. Natu-
ral 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 con-
cepts’ ” to circumstances where the record is inconclusive and
“evidence . . . is difficult to compile,” FCC v. National Citi-
zens 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 in-
creases the incidence of prostitution and violence is amenable to empirical
treatment, and the city councilors who enacted Erie’s ordinance are in a

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
315 Cite as: 529 U. S. 277 (2000)
Opinion of Souter, J.
to current fact, the city council’s closest approach to an evi-
dentiary 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, abor-
tions, 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 opin-
ion 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 evi-
dence has been addressed.
There is one point, however, on which an evidentiary rec-
ord 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 coun-
tering any secondary effects by the significantly lesser re-
striction of zoning to control the location of nude dancing,
thus allowing for efficient law enforcement, restricting ef-
fects 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 scien-
tifically sound studies show no such correlation. See Brief for First
Amendment Lawyers Association as Amicus Curiae 16–23; id., at App.
1–29.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
316 ERIE v. PAP’S A. M.
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 establish-
ments 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 evi-
dentiary 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 liti-
gation. 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 evi-
dence 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 Coun-
cil, 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 banc); J&B Entertainment, Inc. v. Jackson, 152 F. 3d 362,
370–371 (CA5 1998).

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
317 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
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 enlighten-
ment 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 can-
not be made, only that, on this record, Erie has not made it.
I would remand to give it the opportunity to do so.6 Accord-
ingly, although I join with the plurality in adopting the
O’Brien test, I respectfully dissent from the Court’s disposi-
tion of the case.
Justice Stevens, with whom Justice Ginsburg joins,
dissenting.
Far more important than the question whether nude danc-
ing 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 com-
mercial 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
318 ERIE v. PAP’S A. M.
Stevens, J., dissenting
the total suppression of protected speech. Indeed, the plu-
rality opinion concludes that admittedly trivial advance-
ments of a State’s interests may provide the basis for censor-
ship. 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 ac-
knowledges, 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 en-
actment of the ordinance, the dancers at Kandyland per-
formed in the nude. As the Court recognizes, after its en-
actment 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 mes-
sages 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 con-
veyed 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
319 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
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 plu-
rality’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 ordi-
nance is a total ban.
The plurality relies on the so-called “secondary effects”
test to defend the ordinance. Ante, at 290–296. The pres-
ent use of that rationale, however, finds no support whatso-
ever 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 spe-
cial 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 (espe-
cially 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
320 ERIE v. PAP’S A. M.
Stevens, J., dissenting
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. De-
troit 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 pre-
sented, a restriction that does not interfere with con-
tent. 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 re-
duce significantly the number or accessibility of theaters pre-
senting 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 “sec-
ondary effects of such theaters on the surrounding commu-
nity” 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 opportu-
nity to open and operate an adult theater within the
city . . .”). Indeed, in both Renton and American Mini The-
atres, the zoning ordinances were analyzed as mere “time,

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
321 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
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 communica-
tion 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 Rac-
ism, 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 or-
dinance, 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 per-
mitted 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 experi-
enced 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 ef-
fects, then presumably the city can require more and more clothing as
long as any danger of adverse effects remains.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
322 ERIE v. PAP’S A. M.
Stevens, J., dissenting
them altogether. In striking down that law, we focused pre-
cisely 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 municipal-
ity could ban all adult theaters—much less all live entertain-
ment or all nude dancing—from its commercial districts city-
wide.” 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 per-
fectly 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 censor-
ship. For these reasons, the Court’s holding rejects the ex-
plicit reasoning in American Mini Theatres and Renton and
the express holding in Schad.
The Court’s use of the secondary effects rationale to per-
mit 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. Ameri-
can 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
323 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
speech, are presumptively invalid. Under today’s opinion,
a State may totally ban speech based on its secondary ef-
fects—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 pre-
sumptively 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 enor-
mous understatement, the plurality concedes that “requiring
dancers to wear pasties and G-strings may not greatly re-
duce 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 require-
ment “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 an-
nounced in United States v. O’Brien, 391 U. S. 367 (1968),
“requires only that the regulation further the interest in

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
324 ERIE v. PAP’S A. M.
Stevens, J., dissenting
combating such effects,” ante, at 301; see also ante, at 289.
It is one thing to say, however, that O’Brien is more leni-
ent 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 in-
voking the latter line of cases to support its assertion that
Erie’s ordinance is unrelated to speech. The incidental bur-
dens doctrine applies when “ ‘speech’ and ‘nonspeech’ ele-
ments are combined in the same course of conduct,” and the
government’s interest in regulating the latter justifies inci-
dental burdens on the former. O’Brien, 391 U. S., at 376.
Secondary effects, on the other hand, are indirect conse-
quences 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 be-
come 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 nonspeech related concerns, hav-
ing 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 associ-
ated 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
325 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
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 be-
cause Erie has expressly justified its ordinance with refer-
ence 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 ap-
proaches 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., Web-
ster’s Third New International Dictionary 132 (1966) (defining “associate”
as “closely related”). Sometimes, though, the plurality says that the sec-
ondary 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 judg-
ment) (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 re-
stricting 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
326 ERIE v. PAP’S A. M.
Stevens, J., dissenting
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 jus-
tify the law under that doctrine. But it cannot conflate the
two with the expectation that Erie’s interests aimed at sec-
ondary 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 regu-
lation 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 pro-
hibited nude dancing “precisely because of its communica-
tive attributes.” Barnes, 501 U. S., at 577 (Scalia, J., con-
curring in judgment) (emphasis in original); see id., at 596
(White, J., dissenting).
III
The censorial purpose of Erie’s ordinance precludes reli-
ance 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 plural-
ity’s assertion that the two laws are “almost identical.”

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
327 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
Ante, at 289. To begin with, the preamble to Erie’s ordi-
nance candidly articulates its agenda, declaring:
“Council specifically wishes to adopt the concept of Pub-
lic Indecency prohibited by the laws of the State of Indi-
ana, 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 “pur-
pose” is to “limi[t]” a protected form of speech; its invocation
of Barnes cannot obliterate that professed aim.11
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 con-
struction 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 entertain-
ment 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 Pennsylva-
nia, the plurality suggests that I have misinterpreted that court’s reading
of the preamble. Ante, at 290. What follows, however, is a more com-
plete 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. Inextri-
cably 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).

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
328 ERIE v. PAP’S A. M.
Stevens, J., dissenting
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 pro-
ceed 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 partic-
ular 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) (selec-
tive enforcement may affect a law’s generality). Were it otherwise, con-
stitutional 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 Road-
house Theater in downtown Erie with no efforts to enforce the nudity
prohibition which became effective during the run of the play.”
14 Justice 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 pro-
tected speech); in his view, that makes the distinction unobjectionable and
renders the ordinance no less of a general law. Ante, at 309 (opinion con-
curring in judgment). This argument appears to contradict his earlier
definition of a general law: “A law is ‘general’ . . . if it regulates conduct

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
329 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
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 en-
tertainment, and not at more mainstream forms of entertain-
ment 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 talk-
ing about what is indecent and immoral. . . . We’re not pro-
hibiting 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 convic-
tions. For example, one member illustrated his understand-
ing of the aim of the law by contrasting it with his recollec-
tion 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 be-
cause 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 dis-
tinction 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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
330 ERIE v. PAP’S A. M.
Stevens, J., dissenting
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 councilmem-
bers’ 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 natu-
ral reading of the record reflects a near obsessive preoccupa-
tion 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 de-
fined “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 ac-
knowledging that “the girls can wear thongs or a G-string and little pas-
ties 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, 382–
383 (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.

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
331 Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
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 re-
spects, 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 gar-
ments? 17 We should not stretch to embrace fanciful ex-
planations 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 ordi-
nance was a response to a more specific concern than nudity
in general, namely, nude dancing of the sort found in Kandy-
land.18 Given that the Court has not even tried to defend
17 Is it seriously contended (as would be necessary to sustain the ordi-
nance 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 judg-
ment); 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 up-
dates 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

529US1 Unit: $U42 [10-11-01 11:58:08] PAGES PGT: OPIN
332 ERIE v. PAP’S A. M.
Stevens, J., dissenting
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 in-
valid. 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 in-
ferred 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 under-
mine 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 estab-
lishments. The inference supposedly rebutted in Barnes stemmed from
the timing of the enactment. Here, however, the inferences I draw de-
pend 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.