Cite as: 529 U. S. 277 (2000)
Scalia, J., concurring in judgment
"grandfathered"—does not render this ordinance discriminatory 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 Constitutional 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 ordinance 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 counsel'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 meaning 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 interpretation that would carve out such exceptions to the extent the Constitution required them. Contrary to Justice Stevens' view, ibid., I do not believe 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.
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