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 government interest in enacting the ordinance was content neutral, explaining that regulations that are unrelated to the suppression of expression are not subject to strict scrutiny but to the less stringent standard of United States v. O'Brien, supra, at 377. To answer the question whether the ordinance is content based, the court turned to our decision in Barnes. 553 Pa., at 355-356, 719 A. 2d, at 277. Although the Pennsylvania court noted that the Indiana statute at issue in Barnes "is strikingly similar to the Ordinance we are examining," it concluded that "[u]nfortunately for our purposes, the Barnes Court splintered and produced four separate, non-harmonious opinions." 553 Pa., at 356, 719 A. 2d, at 277. After canvassing these separate opinions, the Pennsylvania court concluded that, although it is permissible to find precedential effect in a fragmented decision, to do so a majority of the Court must have been in agreement on the concept that is deemed to be the holding. See Marks v. United States, 430 U. S. 188 (1977). The Pennsylvania court noted that "aside from the agreement by a majority of the Barnes Court that nude dancing is entitled to some First Amendment protection, we can find no point on which a majority of the Barnes Court agreed." 553 Pa., at 358, 719 A. 2d, at 278. Accordingly, the court concluded that "no clear precedent arises out of Barnes on the issue of whether the [Erie] ordinance . . . passes muster under the First Amendment." Ibid.
Having determined that there was no United States Supreme Court precedent on point, the Pennsylvania court
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