Erie v. Pap's A. M., 529 U.S. 277, 49 (2000)

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

Stevens, J., dissenting

same, and the plurality cannot ignore their differences and insist that both aims are equally unrelated to speech simply because Erie might have "recogniz[ed]" that it could possibly have had either aim in mind. See ante, at 295.8 One can think of an apple and an orange at the same time; that does not turn them into the same fruit.

Of course, the line between governmental interests aimed at conduct and unrelated to speech, on the one hand, and interests arising out of the effects of the speech, on the other, may be somewhat imprecise in some cases. In this case, however, we need not wrestle with any such difficulty because Erie has expressly justified its ordinance with reference to secondary effects. Indeed, if Erie's concern with the effects of the message were unrelated to the message itself, it is strange that the only means used to combat those effects is the suppression of the message.9 For these reasons, the plurality's argument that "this case is similar to O'Brien," ante, at 291; see also ante, at 294, is quite wrong, as are its

Justices Scalia and Souter adopted such strikingly different approaches in Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991).

8 I frankly do not understand the plurality's declaration that a State's interest in the secondary effects of speech that are "associated" with the speech are not "related" to the speech. Ante, at 296. See, e. g., Webster's Third New International Dictionary 132 (1966) (defining "associate" as "closely related"). Sometimes, though, the plurality says that the secondary effects are "caused" by the speech, rather than merely "associated with" the speech. See, e. g., ante, at 291, 293, 297, 300. If that is the definition of secondary effects the plurality adopts, then it is even more obvious that an interest in secondary effects is related to the speech at issue. See Barnes, 501 U. S., at 585-586 (Souter, J., concurring in judgment) (secondary effects are not related to speech because their connection to speech is only one of correlation, not causation).

9 As Justice Powell said in his concurrence in Young v. American Mini Theatres, 427 U. S., at 82, n. 4: "[H]ad [Detroit] been concerned with restricting the message purveyed by adult theaters, it would have tried to close them or restrict their number rather than circumscribe their choice as to location." Quite plainly, Erie's total ban evinces its concern with the message being regulated.

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