Erie v. Pap's A. M., 529 U.S. 277, 43 (2000)

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Cite as: 529 U. S. 277 (2000)

Stevens, J., dissenting

the mandated costume change is "de minimis." Ante, at 294. Although I suspect that the patrons of Kandyland are more likely to share Chief Judge Posner's view than the plurality's, for present purposes I shall accept the assumption that the difference in the message is small. The crucial point to remember, however, is that whether one views the difference as large or small, nude dancing still receives First Amendment protection, even if that protection lies only in the "outer ambit" of that Amendment. Ante, at 289. Erie's ordinance, therefore, burdens a message protected by the First Amendment. If one assumes that the same erotic message is conveyed by nude dancers as by those wearing miniscule costumes, one means of expressing that message is banned; 2 if one assumes that the messages are different, one of those messages is banned. In either event, the ordinance is a total ban.

The plurality relies on the so-called "secondary effects" test to defend the ordinance. Ante, at 290-296. The present use of that rationale, however, finds no support whatsoever in our precedents. Never before have we approved the use of that doctrine to justify a total ban on protected First Amendment expression. On the contrary, we have been quite clear that the doctrine would not support that end.

In Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), we upheld a Detroit zoning ordinance that placed special restrictions on the location of motion picture theaters that exhibited "adult" movies. The "secondary effects" of the adult theaters on the neighborhoods where they were located—lower property values and increases in crime (especially prostitution) to name a few—justified the burden im-2 Although nude dancing might be described as one protected "means" of conveying an erotic message, it does not follow that a protected message has not been totally banned simply because there are other, similar ways to convey erotic messages. See ante, at 292-293. A State's prohibition of a particular book, for example, does not fail to be a total ban simply because other books conveying a similar message are available.

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