328
Stevens, J., dissenting
Erie's ordinance, however, comes to us in a much different posture. In an earlier proceeding in this case, the Court of Common Pleas asked Erie's counsel "what effect would this ordinance have on theater . . . productions such as Equus, Hair, O[h!] Calcutta[!]? Under your ordinance would these things be prevented . . . ?" Counsel responded: "No, they wouldn't, Your Honor." App. 53.12 Indeed, as stipulated in the record, the city permitted a production of Equus to proceed without prosecution, even after the ordinance was in effect, and despite its awareness of the nudity involved in the production. Id., at 84.13 Even if, in light of its broad applicability, the statute in Barnes was not aimed at a particular form of speech, Erie's ordinance is quite different. As presented to us, the ordinance is deliberately targeted at Kandyland's type of nude dancing (to the exclusion of plays like Equus), in terms of both its applicable scope and the city's enforcement.14
12 In my view, Erie's categorical response forecloses Justice Scalia's assertion that the city's position on Equus and Hair was limited to "[o]ne instance," where "the city was [not] aware of the nudity," and "no one had complained." Ante, at 308 (opinion concurring in judgment). Nor could it be contended that selective applicability by stipulated enforcement should be treated differently from selective applicability by statutory text. See Barnes, 501 U. S., at 574 (Scalia, J., concurring in judgment) (selective enforcement may affect a law's generality). Were it otherwise, constitutional prohibitions could be circumvented with impunity.
13 The stipulation read: "The play, 'Equus' featured frontal nudity and was performed for several weeks in October/November 1994 at the Road-house Theater in downtown Erie with no efforts to enforce the nudity prohibition which became effective during the run of the play."
14 Justice Scalia argues that Erie might have carved out an exception for Equus and Hair because it guessed that this Court would consider them protected forms of expression, see Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, 550, 557-558 (1975) (holding that Hair, including the "group nudity and simulated sex" involved in the production, is protected speech); in his view, that makes the distinction unobjectionable and renders the ordinance no less of a general law. Ante, at 309 (opinion concurring in judgment). This argument appears to contradict his earlier definition of a general law: "A law is 'general' . . . if it regulates conduct
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