City of Erie v. Pap's A. M./Concurrence-dissent Souter

by David Souter

Justice Souter, concurring in part and dissenting in part.

I join Parts I and II of the Court's opinion and agree with the analytical approach that the plurality employs in deciding this case. Erie's stated interest in combating the secondary effects associated with nude dancing establishments is an interest unrelated to the suppression of expression under United States v. O'Brien, 391 U.S. 367 (1968), and the city's regulation is thus properly considered under the O'Brien standards. I do not believe, however, that the current record allows us to say that the city has made a suffi- [p. 311] cient evidentiary showing to sustain its regulation, and I would therefore vacate the decision of the Pennsylvania Supreme Court and remand the case for further proceedings.

I

In several recent cases, we have confronted the need for factual justifications to satisfy intermediate scrutiny under the First Amendment. See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (Turner II); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I). Those cases do not identify with any specificity a particular quantum of evidence, nor do I seek to do so in this brief concurrence.^[1] What the cases do make plain, however, is that application of an intermediate scrutiny test to a government's asserted rationale for regulation of expressive activity demands some factual justification to connect that rationale with the regulation in issue.

[p. 312] In Turner I, for example, we stated that

"[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply 'posit the existence of the disease sought to be cured.' Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (CADC 1985). It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id., at 664 (plurality opinion).

The plurality concluded there, of course, that the record, though swollen by three years of hearings on the Cable Television Consumer Protection and Competition Act of 1992, was insufficient to permit the necessary determinations and remanded for a more thorough factual development. When the case came back to us, in Turner II, a majority of the Court reiterated those requirements, characterizing the enquiry into the acceptability of the Government's regulations as one that turned on whether they "were designed to address a real harm, and whether those provisions will alleviate it in a material way." 520 U.S., at 195. Most recently, in Nixon, we repeated that "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden," 528 U.S., at 392, and we examined the "evidence introduced into the record by petitioners or cited by the lower courts in this action...," id., at 393.

The focus on evidence appearing in the record is consistent with the approach earlier applied in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In Young, Detroit adopted a zoning ordinance requiring dispersal of adult theaters through the city and prohibiting them within 500 feet of a residential area. Urban planners and real estate experts attested to the harms created by clusters of such theaters, see 427 U.S., at 55, and we found that "[t]he record [p. 313] discloses a factual basis" supporting the efficacy of Detroit's chosen remedy, id., at 71. In Renton, the city similarly enacted a zoning ordinance requiring specified distances between adult theaters and residential zones, churches, parks, or schools. See 475 U.S., at 44. The city "held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney’s Office advising as to developments in other cities." Ibid. We found that Renton's failure to conduct its own studies before enacting the ordinance was not fatal; "[t]he First Amendment does not require a city...to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Id., at 51–52.

The upshot of these cases is that intermediate scrutiny requires a regulating government to make some demonstration of an evidentiary basis for the harm it claims to flow from the expressive activity, and for the alleviation expected from the restriction imposed.^[2] See, e.g., Edenfield v. Fane, 507 U.S. 761, 770–773 (1993) (striking down regulation of commercial speech for failure to show direct and material efficacy). That evidentiary basis may be borrowed from the records made by other governments if the experience elsewhere is germane to the measure under consideration and actually relied upon. I will assume, further, that the reliance may be shown by legislative invocation of a judicial opinion that accepted an evidentiary foundation as sufficient [p. 314] for a similar regulation. What is clear is that the evidence of reliance must be a matter of demonstrated fact, not speculative supposition.

By these standards, the record before us today is deficient in its failure to reveal any evidence on which Erie may have relied, either for the seriousness of the threatened harm or for the efficacy of its chosen remedy. The plurality does the best it can with the materials to hand, see ante, at 297–298, but the pickings are slim. The plurality quotes the ordinance's preamble asserting that over the course of more than a century the city council had expressed "findings" of detrimental secondary effects flowing from lewd and immoral profitmaking activity in public places. But however accurate the recital may be and however honestly the councilors may have held those conclusions to be true over the years, the recitation does not get beyond conclusions on a subject usually fraught with some emotionalism. The plurality recognizes this, of course, but seeks to ratchet up the value of mere conclusions by analogizing them to the legislative facts within an administrative agency's special knowledge, on which action is adequately premised in the absence of evidentiary challenge. Ante, at 298. The analogy is not obvious; agencies are part of the executive branch and we defer to them in part to allow them the freedom necessary to reconcile competing policies. See Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843–845 (1984). That aside, it is one thing to accord administrative leeway as to predictive judgments in applying "'elusive concepts'" to circumstances where the record is inconclusive and "evidence... is difficult to compile," FCC v. National Citizens Comm. for Broadcasting, 436 U.S. 775, 796–797 (1978), and quite another to dispense with evidence of current fact as a predicate for banning a subcategory of expression.^[3] As [p. 315] to current fact, the city council's closest approach to an evidentiary record on secondary effects and their causes was the statement of one councilor, during the debate over the ordinance, who spoke of increases in sex crimes in a way that might be construed as a reference to secondary effects. See App. 44. But that reference came at the end of a litany of concerns ("free condoms in schools, drive-by shootings, abortions, suicide machines," and declining student achievement test scores) that do not seem to be secondary effects of nude dancing. Ibid. Nor does the invocation of Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), in one paragraph of the preamble to Erie's ordinance suffice. App. to Pet. for Cert. 42a. The plurality opinion in Barnes made no mention of evidentiary showings at all, and though my separate opinion did make a pass at the issue, I did not demand reliance on germane evidentiary demonstrations, whether specific to the statute in question or developed elsewhere. To invoke Barnes, therefore, does not indicate that the issue of evidence has been addressed.

There is one point, however, on which an evidentiary record is not quite so hard to find, but it hurts, not helps, the city. The final O'Brien requirement is that the incidental speech restriction be shown to be no greater than essential to achieve the government's legitimate purpose. 391 U.S., at 377. To deal with this issue, we have to ask what basis there is to think that the city would be unsuccessful in countering any secondary effects by the significantly lesser restriction of zoning to control the location of nude dancing, thus allowing for efficient law enforcement, restricting effects on property values, and limiting exposure of the public. [p. 316] The record shows that for 23 years there has been a zoning ordinance on the books to regulate the location of establishments like Kandyland, but the city has not enforced it. One councilor remarked that "I think there's one of the problems. The ordinances are on the books and not enforced. Now this takes place. You really didn't need any other ordinances." App. 43. Another commented, "I felt very, very strongly, and I feel just as strongly right now, that this is a zoning matter." Id., at 45. Even on the plurality's view of the evidentiary burden, this hurdle to the application of O'Brien requires an evidentiary response.

The record suggests that Erie simply did not try to create a record of the sort we have held necessary in other cases, and the suggestion is confirmed by the course of this litigation. The evidentiary question was never decided (or, apparently, argued) below, nor was the issue fairly joined before this Court. While respondent did claim that the evidence before the city council was insufficient to support the ordinance, see Brief for Respondent 44–49, Erie's reply urged us not to consider the question, apparently assuming that Barnes authorized us to disregard it. See Reply Brief for Petitioners 6–8. The question has not been addressed, and in that respect this case has come unmoored from the general standards of our First Amendment jurisprudence.^[4]

Careful readers, and not just those on the Erie City Council, will of course realize that my partial dissent rests on a demand for an evidentiary basis that I failed to make when I concurred in Barnes, supra. I should have demanded the evidence then, too, and my mistake calls to mind Justice Jackson's foolproof explanation of a lapse of his own, when he quoted Samuel Johnson, "'Ignorance, sir, ignorance.'" McGrath v. Kristensen, 340 U.S. 162, 178 (1950) (concurring opinion).^[5] I may not be less ignorant of nude dancing than I was nine years ago, but after many subsequent occasions to think further about the needs of the First Amendment, I have come to believe that a government must toe the mark more carefully than I first insisted. I hope it is enlightenment on my part, and acceptable even if a little late. See Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949) (per curiam) (Frankfurter, J., dissenting).

II

The record before us now does not permit the conclusion that Erie's ordinance is reasonably designed to mitigate real harms. This does not mean that the required showing cannot be made, only that, on this record, Erie has not made it. I would remand to give it the opportunity to do so.^[6] Accordingly, although I join with the plurality in adopting the O'Brien test, I respectfully dissent from the Court's disposition of the case.

Notes

1. . As explained below, infra, at 316, the issue of evidentiary justification was never joined, and with a multiplicity of factors affecting the analysis, a general formulation of the quantum required under United States v. O'Brien, 391 U.S. 367 (1968), will at best be difficult. A lesser showing may suffice when the means-end fit is evident to the untutored intuition. As we said in Nixon, "The quantum of empirical evidence needed to satisfy heightened judicial scrutiny of legislative judgments will vary up or
2. . The plurality excuses Erie from this requirement with the simple observation that "it is evident" that the regulation will have the required efficacy. Ante, at 300. The ipse dixit is unconvincing. While I do agree that evidentiary demands need not ignore an obvious fit between means and ends, see n. 1, supra, it is not obvious that this is such a case. It is not apparent to me as a matter of common sense that establishments featuring dancers with pasties and G-strings will differ markedly in their effects on
3. . The proposition that the presence of nude dancing establishments increases the incidence of prostitution and violence is amenable to empirical treatment, and the city councilors who enacted Erie's ordinance are in a position to look to the facts of their own community's experience as well as to experiences elsewhere. Their failure to do so is made all the clearer by one of the amicus briefs, largely devoted to the argument that scientifically sound studies show no such correlation. See Brief for First Amendment Lawyers Association as Amicus Curiae 16–23; id., at App. 1–29.
4. . By contrast, federal courts in other cases have frequently demanded evidentiary showings. See, e.g., Phillips v. Keyport, 107 F.3d 164, 175 (CA3 1997) (en banc); J&B Entertainment, Inc. v. Jackson, 152 F.3d 362, 370–371 (CA5 1998).
5. . See Boswell, Life of Samuel Johnson, in 44 Great Books of the Western World 82 (R. Hutchins & M. Adler eds. 1952).
6. . This suggestion does not, of course, bar the Pennsylvania Supreme Court from choosing simpler routes to disposition of the case if they exist. Respondent mounted a federal overbreadth challenge to the ordinance; it also asserted a violation of the Pennsylvania Constitution. Either one of these arguments, if successful, would obviate the need for the factual development that is a prerequisite to O'Brien analysis.