316
Opinion of Souter, J.
The record shows that for 23 years there has been a zoning ordinance on the books to regulate the location of establishments like Kandyland, but the city has not enforced it. One councilor remarked that "I think there's one of the problems. The ordinances are on the books and not enforced. Now this takes place. You really didn't need any other ordinances." App. 43. Another commented, "I felt very, very strongly, and I feel just as strongly right now, that this is a zoning matter." Id., at 45. Even on the plurality's view of the evidentiary burden, this hurdle to the application of O'Brien requires an evidentiary response.
The record suggests that Erie simply did not try to create a record of the sort we have held necessary in other cases, and the suggestion is confirmed by the course of this litigation. The evidentiary question was never decided (or, apparently, argued) below, nor was the issue fairly joined before this Court. While respondent did claim that the evidence before the city council was insufficient to support the ordinance, see Brief for Respondent 44-49, Erie's reply urged us not to consider the question, apparently assuming that Barnes authorized us to disregard it. See Reply Brief for Petitioners 6-8. The question has not been addressed, and in that respect this case has come unmoored from the general standards of our First Amendment jurisprudence.4
Careful readers, and not just those on the Erie City Council, will of course realize that my partial dissent rests on a demand for an evidentiary basis that I failed to make when I concurred in Barnes, supra. I should have demanded the evidence then, too, and my mistake calls to mind Justice Jackson's foolproof explanation of a lapse of his own, when he quoted Samuel Johnson, " 'Ignorance, sir, ignorance.' " McGrath v. Kristensen, 340 U. S. 162, 178 (1950) (concurring
4 By contrast, federal courts in other cases have frequently demanded evidentiary showings. See, e. g., Phillips v. Keyport, 107 F. 3d 164, 175 (CA3 1997) (en banc); J&B Entertainment, Inc. v. Jackson, 152 F. 3d 362, 370-371 (CA5 1998).
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