Cite as: 529 U. S. 277 (2000)
Stevens, J., dissenting
This narrow aim is confirmed by the expressed views of the Erie City Councilmembers who voted for the ordinance. The four city councilmembers who approved the measure (of the six total councilmembers) each stated his or her view that the ordinance was aimed specifically at nude adult entertainment, and not at more mainstream forms of entertainment that include total nudity, nor even at nudity in general. One lawmaker observed: "We're not talking about nudity. We're not talking about the theater or art . . . . We're talking about what is indecent and immoral. . . . We're not prohibiting nudity, we're prohibiting nudity when it's used in a lewd and immoral fashion." App. 39. Though not quite as succinct, the other councilmembers expressed similar convictions. For example, one member illustrated his understanding of the aim of the law by contrasting it with his recollection about high school students swimming in the nude in the school's pool. The ordinance was not intended to cover those incidents of nudity: "But what I'm getting at is [the swimming] wasn't indecent, it wasn't an immoral thing, and
without regard to whether that conduct is expressive." Barnes v. Glen Theatre, Inc., 501 U. S., at 576, n. 3 (opinion concurring in judgment). If the ordinance regulates conduct (public nudity), it does not do so without regard to whether the nudity is expressive if it exempts the public nudity in Hair precisely "because of its expressive content." Ante, at 309, n. 6 (opinion concurring in judgment). Moreover, if Erie exempts Hair because it wants to avoid a conflict with the First Amendment (rather than simply to exempt instances of nudity it finds inoffensive), that rationale still does not explain why Hair is exempted but Kandyland is not, since Barnes held that both are constitutionally protected.
Justice Scalia also states that even if the ordinance singled out nude dancing, he would not strike down the law unless the dancing was singled out because of its message. Ante, at 310. He opines that here, the basis for singling out Kandyland is morality. Ibid. But since the "morality" of the public nudity in Hair is left untouched by the ordinance, while the "immorality" of the public nudity in Kandyland is singled out, the distinction cannot be that "nude public dancing itself is immoral." Ibid. (emphasis in original). Rather, the only arguable difference between the two is that one's message is more immoral than the other's.
329
Page: Index Previous 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 NextLast modified: October 4, 2007