John Paul Stevens

“ The nudity of the dancer is both a component of the protected expression and the specific target of the ordinance. It is pure sophistry to reason from the premise that the regulation of the nudity component of nude dancing is unrelated to the message conveyed by nude dancers. Indeed, both the text of the ordinance and the reasoning in the plurality's opinion make it pellucidly clear that the city of Erie has prohibited nude dancing "precisely because of its communicative attributes." ”

“ A dispersal that simply limits the places where speech may occur is a minimal imposition, whereas a total ban is the most exacting of restrictions. The State's interest in fighting presumed secondary effects is sufficiently strong to justify the former, but far too weak to support the latter, more severe burden. [5] Yet it is perfectly clear that in the present case—to use Justice Powell's metaphor in American Mini Theatres—the city of Erie has totally silenced a message the dancers at Kandyland want to convey. ”

“ 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.↑ . The plurality contends, ante, at 295, that Ward v. Rock Against Racism, 491 U.S. 781 (1989) , shows that we have used the secondary effects rationale to justify more burdensome restrictions than those approved in Renton and American Mini Theatres. That argument is unpersuasive for two reasons. First, as in the two cases just mentioned, the regulation in Ward was as a time, place, and manner restriction. ”

“ In striking down that law, we focused precisely on that distinction, holding that the secondary effects analysis endorsed in the past did not apply to an ordinance that totally banned nude dancing: "The restriction [in Young v. American Mini Theatres] did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theaters—much less all live entertainment or all nude dancing—from its commercial districts citywide." Id., at 71 (plurality opinion) ”

“ 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. ”

“ Though such comments could be consistent with an interest in a general prohibition of nudity, the complete absence of commentary on that broader interest, and the councilmembers' exclusive focus on adult entertainment, is evidence of the ordinance's aim. In my view, we need not strain to find consistency with more general purposes when the most natural reading of the record reflects a near obsessive preoccupation with a single target of the law. [16]
The text of Erie's ordinance is also significantly different from the law upheld in Barnes. ”

“ 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.↑ . The plurality states that Erie's ordinance merely "replaces and updates provisions of an 'Indecency and Immorality' ordinance" from the mid-19th century, just as the statute in Barnes did. ”