318
Stevens, J., dissenting
the total suppression of protected speech. Indeed, the plurality opinion concludes that admittedly trivial advancements of a State's interests may provide the basis for censorship. The Court's commendable attempt to replace the fractured decision in Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991), with a single coherent rationale is strikingly unsuccessful; it is supported neither by precedent nor by persuasive reasoning.
I
As the preamble to Ordinance No. 75-1994 candidly acknowledges, the council of the city of Erie enacted the restriction at issue "for the purpose of limiting a recent increase in nude live entertainment within the City." Ante, at 290 (internal quotation marks omitted). Prior to the enactment of the ordinance, the dancers at Kandyland performed in the nude. As the Court recognizes, after its enactment they can perform precisely the same dances if they wear "pasties and G-strings." Ante, at 294; see also ante, at 313, n. 2 (Souter, J., concurring in part and dissenting in part). In both instances, the erotic messages conveyed by the dancers to a willing audience are a form of expression protected by the First Amendment. Ante, at 289.1 Despite the similarity between the messages conveyed by the two forms of dance, they are not identical.
If we accept Chief Judge Posner's evaluation of this art form, see Miller v. South Bend, 904 F. 2d 1081, 1089-1104 (CA7 1990) (en banc), the difference between the two messages is significant. The plurality assumes, however, that the difference in the content of the message resulting from
1 Respondent does not contend that there is a constitutional right to engage in conduct such as lap dancing. The message of eroticism conveyed by the nudity aspect of the dance is quite different from the issue of the proximity between dancer and audience. Respondent's contention is not that Erie has focused on lap dancers, see ante, at 308 (Scalia, J., concurring in judgment), but that it has focused on the message conveyed by nude dancing.
Page: Index Previous 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 NextLast modified: October 4, 2007