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Barnes v. Glen Theatre, Inc. Barry, U. Hardwick, U. LaRue, U. City of Hialeah, U.

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O'Brien, U. Barnette, U.

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American Mini Theatres, Inc. Since its founding inthe ACLU has vigorously defended the free speech principles of the First Amendment and has appeared before this Court on numerous occasions, both as a party and as amicus curiae, in cases challenging governmental actions that threaten First Amendment rights. Because this case addresses important First Amendment questions, its proper resolution is a matter of substantial concern to the ACLU and its members. At the time the Ordinance was enacted, city law already regulated the location of adult entertainment establishments within the City of Erie.

See J. Nevertheless, the City deemed it necessary to adopt the Ordinance to ensure that nude dancing did not occur at all within yeovil escort City limits. See id. On January 18,the trial court permanently ened enforcement of the Ordinance, concluding that the law was constitutionally overbroad. The state appellate court reversed.

The Supreme Court of Pennsylvania reversed the appellate court. Unable to find a guiding opinion in Barnes, the Pennsylvania Supreme Court concluded that the Ordinance was enacted for the purpose prosttiutes restricting "the erotic message of the dance. The Pennsylvania Supreme Court thus applied strict scrutiny and held the Ordinance unconstitutional. Petitioners concede that the Erie Ordinance, like the statute at issue in Barnes, must receive heightened scrutiny under the First Amendment.

As a majority of this Court recognized in Barnes, laws that have the effect of burdening expressive activities must be subjected to heightened scrutiny, even if those laws also apply to nonexpressive activities. See U. The need for heightened scrutiny is especially clear where, as here, a law explicitly states that it is regulating conduct for the prostitute of prohibiting a category of speech.

Thus, this Court has recognized the importance of applying heightened scrutiny even to generally applicable laws if those laws were enacted in order to burden First Amendment rights. Nevertheless, the Court need not reach that question because the Ordinance also fails under the intermediate london prostitution arrests test applied by the plurality and Justice Souter in Barnes.

Petitioners attempt to fit this case within the analysis established by the Court in City of Renton v.

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Playtime Theatres, U. But the Renton rationale cannot be stretched elite escort nottingham far. Renton held that a community may restrict the location of adult movie theaters based on the "secondary effects" associated with such theaters, without being deemed to have engaged in impermissible content-discrimination based on the films themselves. Here, the "secondary effects" rationale is not used to justify a zoning restriction which ly existed but a berkeley eros escort ban on nude dancing.

Under Renton, as under other forms of intermediate scrutiny, the government must offer some evidence that the means it has chosen will further its stated ends. In this context, that means that petitioners must show that "secondary effects" will result from the prohibited nude dancing but not from the permitted partially-clad dancing. That assertion, however, is not only unsupported in the record, it is inherently implausible. In addition, this justification necessarily relates to the primary effect of nude dancing on its viewers - an effect that the Court has consistently rejected as a permissible reason to restrict expression.

The Court has never held that "morality," without more, is sufficient to justify restrictions on a fundamental constitutional right. Indeed, the prostigutes to apply intermediate scrutiny - as the Barnes plurality did - involves a recognition that fundamental First Amendment rights are implicated by laws that impose etie burdens on speech.

If intermediate scrutiny is to have any force, therefore, the government must point to something more than an interest in "morality" to justify a burden on the right prostithtes freedom of expression. This case, we submit, illustrates some of the problems and pitfalls created by that ruling.


As indicated above, we believe that Barnes can be distinguished on the ground that this case involves a law directly targeted at expressive activity. But to the extent that this Court concludes otherwise, amici respectfully submit that Barnes should be reconsidered. Petitioners concede, as they must, that nude dancing is expressive conduct protected by the First Amendment. They also concede that the Ordinance is subject to at least intermediate scrutiny under the First Amendment.

The latter concession is plainly appropriate. As a majority of the Court recognized in Barnes, laws such as the Erie Ordinance that have the effect of fuck buddies south boston expressive activity must be subjected to heightened scrutiny under the First Amendment. See, e. Specifically, the Court must determine whether the law serves a governmental interest that is "important or substantial," whether that interest is "unrelated to the suppression of free expression," and whether the incidental burden on expression is "no greater than is essential to the furtherance of that interest.

Unlike petitioners, the attorneys general of several states, as amici, urge this Court not to apply any form of heightened First Amendment scrutiny. See Br. States of Kansas at 7. Adopting the rationale of Justice Scalia in his concurring opinion in Barnes, amici argue that because the Erie Ordinance applies to public nudity in general, its merely incidental effect on expressive nude dancing does not warrant anything more than an inquiry into whether there is a rational basis for the law.

This case, however, provides an inappropriate context for even considering such a substantial change in First Amendment jurisprudence.

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And, unlike Barnes, this is not a case in which a general anti-nudity law "predates barroom nude dancing and was enacted as a general prohibition. The transcripts of the City Council meeting concerning the Ordinance show that the Council housewives seeking nsa vancourt texas 76955 were frustrated with the failure of these laws to prevent nude dancing from occurring within the City.

States of Kansas at 8. That rule is a necessary correlate of any rule immunizing "generally applicable" laws from heightened constitutional scrutiny - prstitutes of the ease with which those who would restrict constitutional rights can do so through laws that appear on their face to be neutral regulations of conduct. See Lukumi, U. Amici are of the view that this type of approach is far more sensible.

But the more important point, for present purposes, is that the choice between the two approaches makes no difference in this case.

Both approaches would mandate heightened scrutiny here - either because the Erie Ordinance "incidentally" burdens expression or because its purpose was to do so. That the Ordinance explicitly targets a form prostifutes expressive conduct ordinarily would require "the most exacting scrutiny. Indeed, amici believe that, in light of the plain language and history of the Ordinance, strict scrutiny is warranted. There is apparently no dispute about the proposition that the City of Erie has the power to enact rpostitutes ordinance of this general type.

Petitioners advance two alternative interests to support the Ordinance. First, the City argues - and the Ordinance explicitly states - that the law serves the purpose of restricting live nude dancing because of the alleged "secondary effects" associated with this type of expressive conduct. See Pet.

Petitioners principally rely on the "secondary effects" rationale. Following the language of the preamble, petitioners argue that allowing the conduct banned by the Ordinance "adversely impacts and threatens to impact the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases proostitutes other deleterious effects.

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