326
Stevens, J., dissenting
citations to Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), and Ward v. Rock Against Racism, 491 U. S. 781 (1989), ante, at 293-295, neither of which involved secondary effects. The plurality cannot have its cake and eat it too—either Erie's ordinance was not aimed at speech and the plurality may attempt to justify the regulation under the incidental burdens test, or Erie has aimed its law at the secondary effects of speech, and the plurality can try to justify the law under that doctrine. But it cannot conflate the two with the expectation that Erie's interests aimed at secondary effects will be rendered unrelated to speech by virtue of this doctrinal polyglot.
Correct analysis of the issue in this case should begin with the proposition that nude dancing is a species of expressive conduct that is protected by the First Amendment. As Chief Judge Posner has observed, nude dancing fits well within a broad, cultural tradition recognized as expressive in nature and entitled to First Amendment protection. See 904 F. 2d, at 1089-1104; see also Note, 97 Colum. L. Rev. 1844 (1997). The nudity of the dancer is both a component of the protected expression and the specific target of the ordinance. It is pure sophistry to reason from the premise that the regulation of the nudity component of nude dancing is unrelated to the message conveyed by nude dancers. Indeed, both the text of the ordinance and the reasoning in the plurality's opinion make it pellucidly clear that the city of Erie has prohibited nude dancing "precisely because of its communicative attributes." Barnes, 501 U. S., at 577 (Scalia, J., concurring in judgment) (emphasis in original); see id., at 596 (White, J., dissenting).
III
The censorial purpose of Erie's ordinance precludes reliance on the judgment in Barnes as sufficient support for the Court's holding today. Several differences between the Erie ordinance and the statute at issue in Barnes belie the plural-ity's assertion that the two laws are "almost identical."
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