322
Stevens, J., dissenting
them altogether. In striking down that law, we focused precisely on that distinction, holding that the secondary effects analysis endorsed in the past did not apply to an ordinance that totally banned nude dancing: "The restriction [in Young v. American Mini Theatres] did not affect the number of adult movie theaters that could operate in the city; it merely dispersed them. The Court did not imply that a municipality could ban all adult theaters—much less all live entertainment or all nude dancing—from its commercial districts citywide." Id., at 71 (plurality opinion); see also id., at 76; id., at 77 (Blackmun, J., concurring) ( joining plurality); id., at 79 (Powell, J., concurring) (same).
The reason we have limited our secondary effects cases to zoning and declined to extend their reasoning to total bans is clear and straightforward: A dispersal that simply limits the places where speech may occur is a minimal imposition, whereas a total ban is the most exacting of restrictions. The State's interest in fighting presumed secondary effects is sufficiently strong to justify the former, but far too weak to support the latter, more severe burden.5 Yet it is perfectly clear that in the present case—to use Justice Powell's metaphor in American Mini Theatres—the city of Erie has totally silenced a message the dancers at Kandyland want to convey. The fact that this censorship may have a laudable ulterior purpose cannot mean that censorship is not censorship. For these reasons, the Court's holding rejects the explicit reasoning in American Mini Theatres and Renton and the express holding in Schad.
The Court's use of the secondary effects rationale to permit a total ban has grave implications for basic free speech principles. Ordinarily, laws regulating the primary effects of speech, i. e., the intended persuasive effects caused by the
5 As the plurality recognizes by quoting my opinion in Young v. American Mini Theatres, Inc., 427 U. S. 50, 70 (1976), see ante, at 294, "the First Amendment will not tolerate the total suppression of erotic materials that have some artistic value," though it will permit zoning regulations.
Page: Index Previous 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 NextLast modified: October 4, 2007