[ OConnor ]
[ Scalia ]
[ Stevens ]
[ Opinion of Souter ]
CITY OF ERIE, et al., PETITIONERS v. PAPS A. M. tdba KANDYLAND
ON WRIT OF CERTIORARI TO THE SUPREME COURT OF
PENNSYLVANIA, WESTERN DISTRICT
[March 29, 2000]
Justice OConnor announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which The Chief Justice, Justice Kennedy, and Justice Breyer join.
The city of Erie, Pennsylvania, enacted an ordinance banning public nudity. Respondent Paps A. M. (hereinafter Paps), which operated a nude dancing establishment in Erie, challenged the constitutionality of the ordinance and sought a permanent injunction against its enforcement. The Pennsylvania Supreme Court, although noting that this Court in Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), had upheld an Indiana ordinance that was strikingly similar to Eries, found that the public nudity sections of the ordinance violated respondents right to freedom of expression under the United States Constitution. 553 Pa. 348, 356, 719 A. 2d 273, 277 (1998). This case raises the question whether the Pennsylvania Supreme Court properly evaluated the ordinances constitutionality under the First Amendment. We hold that Eries ordinance is a content-neutral regulation that satisfies the four-part test of United States v. OBrien, 391 U.S. 367 (1968). Accordingly, we reverse the decision of the Pennsylvania Supreme Court and remand for the consideration of any remaining issues.
On September 28, 1994, the city council for the city of Erie, Pennsylvania, enacted Ordinance 751994, a public indecency ordinance that makes it a summary offense to knowingly or intentionally appear in public in a state of nudity.*1 Respondent Paps, a Pennsylvania corporation, operated an establishment in Erie known as Kandyland that featured totally nude erotic dancing performed by women. To comply with the ordinance, these dancers must wear, at a minimum, pasties and a G&nbhyph;string. On October 14, 1994, two days after the ordinance went into effect, Paps 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. 600591994 (Jan. 18, 1995), Pet. for Cert. 40a. On cross appeals, the Commonwealth Court reversed the trial courts order. 674 A. 2d 338 (1996).
The Pennsylvania Supreme Court granted review and reversed, concluding that the public nudity provisions of the ordinance violated respondents rights to freedom of expression as protected by the First and Fourteenth Amendments. 553 Pa. 348, 719 A. 2d 273 (1998). The Pennsylvania court first inquired whether nude dancing constitutes expressive conduct that is within the protection of the First Amendment. The court noted that the act of being nude, in and of itself, is not entitled to First Amendment protection because it conveys no message. Id., at 354, 719 A. 2d, at 276. Nude dancing, however, is expressive conduct that is entitled to some quantum of protection under the First Amendment, a view that the Pennsylvania Supreme Court noted was endorsed by eight Members of this Court in Barnes. 553 Pa., at 354, 719 A. 2d, at 276.
The Pennsylvania court next inquired whether the government interest in enacting the ordinance was content neutral, explaining that regulations that are unrelated to the suppression of expression are not subject to strict scrutiny but to the less stringent standard of United States v. OBrien, supra, at 377. To answer the question whether the ordinance is content based, the court turned to our decision in Barnes. 553 Pa., at 355356, 719 A. 2d, at 277. Although the Pennsylvania court noted that the Indiana statute at issue in Barnes is strikingly similar to the Ordinance we are examining, it concluded that [u]nfortunately for our purposes, the Barnes Court splintered and produced four separate, non-harmonious opinions. 553 Pa., at 356, 719 A. 2d, at 277. After canvassing these separate opinions, the Pennsylvania court concluded that, although it is permissible to find precedential effect in a fragmented decision, to do so a majority of the Court must have been in agreement on the concept that is deemed to be the holding. See Marks v. United States, 430 U.S. 188 (1977). The Pennsylvania court noted that aside from the agreement by a majority of the Barnes Court that nude dancing is entitled to some First Amendment protection, we can find no point on which a majority of the Barnes Court agreed. 553 Pa., at 358, 719 A. 2d, at 278. Accordingly, the court concluded that no clear precedent arises out of Barnes on the issue of whether the [Erie] ordinance passes muster under the First Amendment. Ibid.
Having determined that there was no United States Supreme Court precedent on point, the Pennsylvania court conducted an independent examination of the ordinance to ascertain whether it was related to the suppression of expression. The court concluded that although one of the purposes of the ordinance was to combat negative secondary effects, [i]nextricably bound up with this stated purpose is an unmentioned purpose to impact negatively on the erotic message of the dance. Id., at 359, 719 A. 2d, at 279. As such, the court determined the ordinance was content based and subject to strict scrutiny. The ordinance failed the narrow tailoring requirement of strict scrutiny because the court found that imposing criminal and civil sanctions on those who commit sex crimes would be a far narrower means of combating secondary effects than the requirement that dancers wear pasties and G-strings. Id., at 361362, 719 A. 2d, at 280.
Concluding that the ordinance unconstitutionally burdened respondents expressive conduct, the Pennsylvania court then determined that, under Pennsylvania law, the public nudity provisions of the ordinance could be severed rather than striking the ordinance in its entirety. Accordingly, the court severed §§1(c) and 2 from the ordinance and reversed the order of the Commonwealth Court. Id., at 363364, 719 A. 2d, at 281. Because the court determined that the public nudity provisions of the ordinance violated Paps right to freedom of expression under the United States Constitution, it did not address the constitutionality of the ordinance under the Pennsylvania Constitution or the claim that the ordinance is unconstitutionally overbroad. Ibid.
In a separate concurrence, two justices of the Pennsylvania court noted that, because this Court upheld a virtually identical statute in Barnes, the ordinance should have been upheld under the United States Constitution. 553 Pa., at 364, 719 A. 2d, at 281. They reached the same result as the majority, however, because they would have held that the public nudity sections of the ordinance violate the Pennsylvania Constitution. Id., at 370, 719 A. 2d, at 284.
The city of Erie petitioned for a writ of certiorari, which we granted. 526 U.S. 1111 (1999). Shortly thereafter, Paps filed a motion to dismiss the case as moot, noting that Kandyland was no longer operating as a nude dancing club, and Paps was not operating a nude dancing club at any other location. Respondents Motion to Dismiss as Moot 1. We denied the motion. 527 U.S. 1034 (1999).
As a preliminary matter, we must address the justiciability question.
Here, Paps 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). Paps asserts that the case is therefore moot because [t]he outcome of this case will have no effect upon Respondent. Respondents Motion to Dismiss as Moot 1. Simply closing Kandyland is not sufficient to render this case moot, however. Paps is still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie. See Petitioners Brief in Opposition to Motion to Dismiss 3. Justice Scalia differs with our assessment as to the likelihood that Paps may resume its nude dancing operation. Several Members of this Court can attest, however, that the advanced age of Paps 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. ___ (2000). Moreover, our appraisal of Paps affidavit is influenced by Paps 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 Commrs of Tiverton v. Pastore, 469 U.S. 238, 240 (1985) (per curiam). Paps only raised the issue after this Court granted certiorari.
In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who, having prevailed below, now seeks to have the case declared moot. And it is the city of Erie that seeks to invoke the federal judicial power to obtain this Courts review of the Pennsylvania Supreme Court decision. Cf. ASARCO Inc. v. Kadish, 490 U.S. 605, 617618 (1989). The city has an ongoing injury because it is barred from enforcing the public nudity provisions of its ordinance. If the challenged ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United States, supra, at 13. And Paps still has a concrete stake in the outcome of this case because, to the extent Paps has an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting to manipulate the Courts 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, 74 (1997). Although the issue is close, we conclude that the case is not moot, and we turn to the merits.
Being in a state of nudity is not an inherently expressive condition. As we explained in Barnes, however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendments protection. See Barnes v. Glen Theatre, Inc., 501 U.S., at 565566 (plurality opinion); Schad v. Mount Ephraim, 452 U.S. 61, 66 (1981).
To determine what level of scrutiny applies to the ordinance at issue here, we must decide whether the States regulation is related to the suppression of expression. Texas v. Johnson, 491 U.S. 397, 403 (1989); see also United States v. OBrien, 391 U.S., at 377. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the less stringent standard from OBrien for evaluating restrictions on symbolic speech. Texas v. Johnson, supra, at 403; United States v. OBrien, supra, at 377. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the OBrien 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 Indianas public nudity ban did not violate the First Amendment, although no five Members of the Court agreed on a single rationale for that conclusion. We now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in OBrien for content-neutral restrictions on symbolic speech.
The city of Erie argues that the ordinance is a content-neutral restriction that is reviewable under OBrien because the ordinance bans conduct, not speech; specifically, public nudity. Respondent counters that the ordinance targets nude dancing and, as such, is aimed specifically at suppressing expression, making the ordinance a content-based restriction that must be subjected to strict scrutiny.
The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. 553 Pa., at 354, 719 A. 2d, at 277. By its terms, the ordinance regulates conduct alone. It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity. And like the statute in Barnes, the Erie ordinance replaces and updates provisions of an Indecency and Immorality ordinance that has been on the books since 1866, predating the prevalence of nude dancing establishments such as Kandyland. Pet. for Cert. 7a; see Barnes v. Glen Theatre, Inc., supra, at 568.
Respondent and Justice Stevens contend nonetheless that the ordinance is related to the suppression of expression because language in the ordinances preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at Kandyland. Post, at 1 (dissenting opinion). That is not how the Pennsylvania Supreme Court interpreted that language, however. In the preamble to the ordinance, the city council stated that it was adopting the regulation
The Pennsylvania Supreme Court construed this language to mean that one purpose of the ordinance was to combat negative secondary effects. Ibid.
As Justice Souter noted in Barnes, on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression. 501 U.S., at 585 (opinion concurring in judgment). In that sense, this case is similar to OBrien. OBrien burned his draft registration card as a public statement of his antiwar views, and he was convicted under a statute making it a crime to knowingly mutilate or destroy such a card. This Court rejected his claim that the statute violated his First Amendment rights, reasoning that the law punished him for the noncommunicative impact of his conduct, and for nothing else. 391 U.S., at 382. In other words, the Government regulation prohibiting the destruction of draft cards was aimed at maintaining the integrity of the Selective Service System and not at suppressing the message of draft resistance that OBrien sought to convey by burning his draft card. So too here, the ordinance prohibiting public nudity is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing. Put another way, the ordinance does not attempt to regulate the primary effects of the expression, i.e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare, which we have previously recognized are caused by the presence of even one such establishment. Renton v. Playtime Theatres, Inc., 475 U.S. 41, 4748, 50 (1986); see also Boos v. Barry, 485 U.S. 312, 321 (1988).
Although the Pennsylvania Supreme Court acknowledged that one goal of the ordinance was to combat the negative secondary effects associated with nude dancing establishments, the court concluded that the ordinance was nevertheless content based, relying on Justice Whites position in dissent in Barnes for the proposition that a ban of this type necessarily has the purpose of suppressing the erotic message of the dance. Because the Pennsylvania court agreed with Justice Whites approach, it concluded that the ordinance must have another, unmentioned purpose related to the suppression of expression. 553 Pa., at 359, 719 A. 2d, at 279. That is, the Pennsylvania court adopted the dissents view in Barnes that
Respondents argument that the ordinance is aimed at suppressing expression through a ban on nude dancingan argument that respondent supports by pointing to statements by the city attorney that the public nudity ban was not intended to apply to legitimate theater productionsis really an argument that the city council also had an illicit motive in enacting the ordinance. As we have said before, however, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. OBrien, 391 U.S., at 382383; Renton v. Playtime Theatres, Inc., supra, at 4748 (that the predominate purpose of the statute was to control secondary effects was more than adequate to establish that the citys interest was unrelated to the suppression of expression). In light of the Pennsylvania courts determination that one purpose of the ordinance is to combat harmful secondary effects, the ban on public nudity here is no different from the ban on burning draft registration cards in OBrien, where the Government sought to prevent the means of the expression and not the expression of antiwar sentiment itself.
Justice Stevens argues that the ordinance enacts a complete ban on expression. We respectfully disagree with that characterization. The public nudity ban certainly has the effect of limiting one particular means of expressing the kind of erotic message being disseminated at Kandyland. But simply to define what is being banned as the message is to assume the conclusion. We did not analyze the regulation in OBrien as having enacted a total ban on expression. Instead, the Court recognized that the regulation against destroying ones draft card was justified by the Governments interest in preventing the harmful secondary effects of that conduct (disruption to the Selective Service System), even though that regulation may have some incidental effect on the expressive element of the conduct. Because this justification was unrelated to the suppression of OBriens antiwar message, the regulation was content neutral. Although there may be cases in which banning the means of expression so interferes with the message that it essentially bans the message, that is not the case here.
Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of the erotic message of nude dancing, we would do so now because the premise of such a view is flawed. The States interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood. See Renton, supra, at 5051. In Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), we held that a National Park Service regulation prohibiting camping in certain parks did not violate the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in Washington, D. C., in connection with a demonstration intended to call attention to the plight of the homeless. Assuming, arguendo, that sleeping can be expressive conduct, the Court concluded that the Government interest in conserving park property was unrelated to the demonstrators message about homelessness. Id., at 299. 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 Eries public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis. And as Justice Stevens eloquently stated for the plurality in Young v. American Mini Theatres, Inc., 427 U.S. 50, 70 (1976), even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that societys interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate, and few of us would march our sons or daughters off to war to preserve the citizens right to see specified anatomical areas exhibited at establishments like Kandyland. If States are to be able to regulate secondary effects, then de minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content based. See Clark v. Community for Creative Non&nbhyph;Violence, supra, at 299; Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (even if regulation has an incidental effect on some speakers or messages but not others, the regulation is content neutral if it can be justified without reference to the content of the expression).
This case is, in fact, similar to OBrien, Community for Creative Non&nbhyph;Violence, and Ward. The justification for the government regulation in each case prevents harmful secondary effects that are unrelated to the suppression of expression. See, e.g., Ward v. Rock Against Racism, supra, at 791792 (noting that [t]he principal justification for the sound-amplification guideline is the citys desire to control noise levels at bandshell events, in order to retain the character of [the adjacent] Sheep Meadow and its more sedate activities, and citing Renton for the proposition that [a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others). While the doctrinal theories behind incidental burdens and secondary effects are, of course, not identical, there is nothing objectionable about a city passing a general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected speech) and at the same time recognizing that one specific occurrence of public nuditynude erotic dancingis particularly problematic because it produces harmful secondary effects.
Justice Stevens claims that today we [f]or the first time extend Rentons secondary effects doctrine to justify restrictions other than the location of a commercial enterprise. Post, at 1. 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 dissents 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 decisions original limited focus). Moreover, Eries ordinance does not effect a total ban on protected expression. Post, at 3.
In Renton, the regulation explicitly treated adult movie theaters differently from other theaters, and defined adult theaters solely by reference to the content of their movies. 475 U.S., at 44. We nonetheless treated the zoning regulation as content neutral because the ordinance was aimed at the secondary effects of adult theaters, a justification unrelated to the content of the adult movies themselves. Id., at 48. Here, Eries 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 Eries asserted interest in combating the negative secondary effects associated with adult entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude dancing. The ordinance prohibiting public nudity is therefore valid if it satisfies the four-factor test from OBrien for evaluating restrictions on symbolic speech.
Applying that standard here, we conclude that Eries ordinance is justified under OBrien. The first factor of the OBrien test is whether the government regulation is within the constitutional power of the government to enact. Here, Eries efforts to protect public health and safety are clearly within the citys police powers. The second factor is whether the regulation furthers an important or substantial government interest. The asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing are undeniably important. And in terms of demonstrating that such secondary effects pose a threat, the city need not conduct new studies or produce evidence independent of that already generated by other cities to demonstrate the problem of secondary effects, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. Renton v. Playtime Theatres, Inc., supra, at 5152. Because the nude dancing at Kandyland is of the same character as the adult entertainment at issue in Renton, Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and California v. LaRue, 409 U.S. 109 (1972), it was reasonable for Erie to conclude that such nude dancing was likely to produce the same secondary effects. And Erie could reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theatres to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. See Renton v. Playtime Theatres, Inc., supra, at 5152 (indicating that reliance on a judicial opinion that describes the evidentiary basis is sufficient). In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. Even in cases addressing regulations that strike closer to the core of First Amendment values, we have accepted a state or local governments reasonable belief that the experience of other jurisdictions is relevant to the problem it is addressing. See Nixon v. Shrink Missouri Government PAC, 528 U.S. ___ (2000) (slip op., at 13, n. 6). Regardless of whether Justice Souter now wishes to disavow his opinion in Barnes on this point, see post, at 8 (opinion concurring in part and dissenting in part), the evidentiary standard
described in Renton controls here, and Erie meets that standard.
In any event, Erie also relied on its own findings. The preamble to the ordinance states that the Council of the City of Erie has, at various times over more than a century, expressed its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity. Pet. for Cert. 6a (emphasis added). The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had first-hand knowledge of what took place at and around nude dancing establishments in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects. Analogizing to the administrative agency context, it is well established that, as long as a party has an opportunity to respond, an administrative agency may take official notice of such legislative facts within its special knowledge, and is not confined to the evidence in the record in reaching its expert judgment. See FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775 (1978); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); 2 K. Davis & R. Pierce, Administrative Law Treatise §10.6 (3d ed. 1994). Here, Kandyland has had ample opportunity to contest the councils findings about secondary effectsbefore the council itself, throughout the state proceedings, and before this Court. Yet to this day, Kandyland has never challenged the city councils findings or cast any specific doubt on the validity of those findings. Instead, it has simply asserted that the councils evidentiary proof was lacking. In the absence of any reason to doubt it, the citys expert judgment should be credited. And the study relied on by amicus curiae does not cast any legitimate doubt on the Erie city councils judgment about Erie. See Brief for First Amendment Lawyers Association as Amicus Curiae 1623.
Finally, it is worth repeating that Eries 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, OBrien is especially instructive. The Court there did not require evidence that the integrity of the Selective Service System would be jeopardized by the knowing destruction or mutilation of draft cards. It simply reviewed the Governments various administrative interests in issuing the cards, and then concluded that Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people who knowingly and willfully destroy or mutilate them. 391 U.S., at 378380. There was no study documenting instances of draft card mutilation or the actual effect of such mutilation on the Governments asserted efficiency interests. But the Court permitted Congress to take official notice, as it were, that draft card destruction would jeopardize the system. The fact that this sort of leeway is appropriate in a case involving conduct says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. As we have said, so long as the regulation is unrelated to the suppression of expression, [t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word. Texas v. Johnson, 491 U.S., at 406. See, e.g., United States v. OBrien, supra, at 377; United States v. Albertini, 472 U.S. 675, 689 (1985) (finding sufficient the Governments 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&nbhyph;Violence, 468 U.S., at 299 (finding sufficient the Governments 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 78. Justice Souter agrees that Eries interest in combating the negative secondary effects associated with nude dancing establishments is a legitimate government interest unrelated to the suppression of expression, and he agrees that the ordinance should therefore be evaluated under OBrien. OBrien, of course, required no evidentiary showing at all that the threatened harm was real. But that case is different, Justice Souter contends, because in OBrien there could be no doubt that a regulation prohibiting the destruction of draft cards would alleviate the harmful secondary effects flowing from the destruction of those cards. Post, at 2, 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 OBrien: whether there is a substantial government interest and whether the regulation furthers that interest. As to the government interest, i.e., whether the threatened harm is real, the city council relied on this Courts opinions detailing the harmful secondary effects caused by establishments like Kandyland, as well as on its own experiences in Erie. Justice Souter attempts to denigrate the city councils conclusion that the threatened harm was real, arguing that we cannot accept Eries findings because the subject of nude dancing is fraught with some emotionalism, post, at 5. Yet surely the subject of drafting our citizens into the military is fraught with more emotionalism than the subject of regulating nude dancing. Justice Souter next hypothesizes that the reason we cannot accept Eries conclusion is that, since the question whether these secondary effects occur is amenable to empirical treatment, we should ignore Eries actual experience and instead require such an empirical analysis. Post, at 6, n. 4 (referring to a scientifically sound study offered by an amicus curiae to show that nude dancing establishments do not cause secondary effects). In Nixon, however, we flatly rejected that idea. 528 U.S., at ___ (slip op., at 1415) (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 pointwhether the regulation furthers the government interestit is evident that, since crime and other public health and safety problems are caused by the presence of nude dancing establishments like Kandyland, a ban on such nude dancing would further Eries interest in preventing such secondary effects. To be sure, requiring dancers to wear pasties and G&nbhyph;strings may not greatly reduce these secondary effects, but OBrien requires only that the regulation further the interest in combating such effects. Even though the dissent questions the wisdom of Eries chosen remedy, post, at 7 (opinion of Stevens, J.), the
to address the problem with the requirement that the restriction be no greater than necessary to further the citys interest.
The ordinance also satisfies OBriens third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra, at 715. The fourth and final OBrien factorthat the restriction is no greater than is essential to the furtherance of the government interestis satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G&nbhyph;strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancers erotic message. See Barnes v. Glen Theatre, Inc., 501 U.S., at 572 (plurality opinion of Rehnquist, C. J., joined by OConnor and Kennedy, JJ.); id., at 587 (Souter, J., concurring in judgment). Justice Souter points out that zoning is an alternative means of addressing this problem. It is far from clear, however, that zoning imposes less of a burden on expression than the minimal requirement implemented here. In any event, since this is a content-neutral restriction, least restrictive means analysis is not required. See Ward, 491 U.S., at 798799, n. 6.
We hold, therefore, that Eries ordinance is a content-neutral regulation that is valid under OBrien. Accordingly, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
1. * Ordinance 751994, codified as Article 711 of the Codified Ordinances of the city of Erie, provides in relevant part: 1. A person who knowingly or intentionally, in a public place: a. engages in sexual intercourse b. engages in deviate sexual intercourse as defined by the Pennsylvania Crimes Code c. appears in a state of nudity, or d. fondles the genitals of himself, herself or another person commits Public Indecency, a Summary Offense. 2. Nudity means the showing of the human male or female genital [sic], pubic hair or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the nipple; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola. 3. Public Place includes all outdoor places owned by or open to the general public, and all buildings and enclosed places owned by or open to the general public, including such places of entertainment, taverns, restaurants, clubs, theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to patrons invited to attend, whether or not an admission charge is levied. 4. The prohibition set forth in subsection 1(c) shall not apply to: a. Any child under ten (10) years of age; or b. Any individual exposing a breast in the process of breastfeeding an infant under two (2) years of age.