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 between adult theaters and residential zones, churches, parks, or schools. See 475 U. S., at 44. The city "held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney's Office advising as to developments in other cities." Ibid. We found that Renton's failure to conduct its own studies before enacting 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 demonstration 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 elsewhere is germane to the measure under consideration and actually relied upon. I will assume, further, that the reliance 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 observation 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.
313
Page: Index Previous 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 NextLast modified: October 4, 2007