Erie v. Pap's A. M. - Oral Argument

Argument of Gregory A. Karle

Chief Justice Rehnquist: We'll hear argument next in Number 98-1161, City of Erie v. Pap's A.M., doing business as Kandyland.

Mr.... spectators are admonished, don't talk until you get out of the courtroom.

The Court is still in session.

Mr. Karle.

Am I pronouncing your name correctly?

Mr. Karle: Karle.

Chief Justice Rehnquist: Karle?

Mr. Karle: Karle.

Chief Justice Rehnquist: Karle, okay.

Mr. Karle: Thank you, Mr. Chief Justice, and may it please the Court:

In 1994, the City of Erie enacted a content-neutral blanket prohibition against public nudity.

That ordinance was patterned after a similar ordinance which was passed on by this Court in 1991 styled Barnes v. Glen Theatre.

Chief Justice Rehnquist: Maybe you should lower the... I think the trouble is, it's too high.

Crank it down, and I think we might hear you... the other side.

Mr. Karle: Okay.

Justice O'Connor: Now try it and speak up, if you...

Mr. Karle: Our ordinance was challenged.

It went through our intermediate trial level and intermediate appellate system, and was passed on by our State supreme court.

On review, the Pennsylvania supreme court acknowledged that First Amendment protection was extended to nude barroom dancing, as was found in Barnes v. Glen Theatre.

It declined to find any other guidance in Barnes.

Our State supreme court engaged in its own independent analysis in rejecting our contention that the ordinance was content-neutral.

The city challenged the ordinance...

Justice O'Connor: On content neutrality, the ordinance at issue in Barnes, as I recall, prohibited public nudity in general.

Mr. Karle: That's correct.

Justice O'Connor: Now, in this Erie ordinance, the preamble to the ordinance notes that it was enacted for the purpose of limiting a recent increase in nude live entertainment.

Mr. Karle: That's correct.

Justice O'Connor: Does that distinguish this Erie ordinance from Barnes?

Mr. Karle: Justice O'Connor...

Justice O'Connor: seems to have been addressed to a specific problem, making it perhaps not content-neutral.

Mr. Karle: Well, first of all, Your Honor, our position is, reference to content does not make the ordinance content-specific, or content-based.

The intention of that preamble was to acknowledge the prior holdings of this specific Court, which granted certain limitations to this type of expressive conduct.

The whole text of the ordinance is an ordinance of general application.

It applies...

Justice Scalia: Before we get too much into the merits of this case, there's a contention that the case may be moot.

Can you talk about mootness?

Mr. Karle: I...

Justice Scalia: Is the... is this business still in operation, Pap's?

Mr. Karle: As I understand it, the location where it operated initially in 1994 no longer exists.

Justice Scalia: But he's in business somewhere else?

As I understood it, he's out of business.

He's 70 years old, and...

Mr. Karle: I... in an affidavit presented by the respondent, he claims to be out of business.

Justice Scalia: Well, do you claim he's not out of business?

Mr. Karle: I filed a response... they still keep their corporation in an active status, so...

Justice Scalia: Is that enough?

I mean...

Mr. Karle: It's enough that he could get back into business...

Justice Scalia: Well, anybody could get back into business, but then there's no such thing as mootness.

I mean, if a person stops the business and has no intention, expresses no intention of going back into it...

Mr. Karle: We've also...

Justice Scalia: He sold the place.

He doesn't even have the property any more, is that right, and the only reason you think the case is still alive is because the corporation is still in existence?

Mr. Karle: That was one reason we asserted in our petition in response to mootness.

Justice Scalia: What else?

Mr. Karle: We also cited a number of reasons.

If I can...

Justice O'Connor: What about the line of cases that says voluntary cessation doesn't moot a case?

Mr. Karle: We cited those in our response to...

Justice Scalia: Unfortunately, those cases involve voluntary cessation by the defendant.

Justice Kennedy: Right.

Mr. Karle: That's correct.

Justice Scalia: Not voluntary cessation by the plaintiff.

This is the plaintiff who says, you know, I was really mad at the city for closing me down, but now, I don't really care.

I'm going to Florida.

Unidentified Justice: [Laughter]

Justice Scalia: I couldn't care if they close me down or not.

I've made mine and I'm leaving Erie, Pennsylvania.

I'm getting out of the rust belt.

I'm going to Florida.

Unidentified Justice: [Laughter]

Mr. Karle: Justice Scalia, we also indicated that there is a reasonable expectation that the same controversy will occur between the same parties.

Chief Justice Rehnquist: Well now, what... and what's the basis for that statement?

The... I mean, is there some evidence that this corporation is likely to resume the sort of business it had?

Mr. Karle: Chief Justice Rehnquist, we don't know.

There's no evidence before us which suggests that he couldn't do it.

The man hasn't died.

Chief Justice Rehnquist: So it's just kind of up in the air?

He's quit the business, and... but you're saying he might resume it?

Mr. Karle: Yes.

Chief Justice Rehnquist: But there's no evidence one way or the other on the subject?

Mr. Karle: In our mind, what this case...

Justice O'Connor: Well, there is evidence.

He's said he isn't going to.

He's finished.

He's out of there.

Mr. Karle: There is an affidavit, that's correct.

Justice O'Connor: Right, and you don't have anything in opposition to that, except you say, well, he could change his mind.

Mr. Karle: That's correct.

Justice Breyer: What about closing the business?

Isn't that evidence, too?

I mean, physically he closed something, it's gone, he sold the property?

Mr. Karle: Yes, the property was sold.

Justice Kennedy: All right.

Justice Breyer: So he has no property, he says he's not going to do it any more, and you in response to that say, what?

You say nothing.

Justice Kennedy: All right.

Mr. Karle: If I may, the corporate records of this entity indicate a number of shareholders.

Mr. Panels wasn't the only one.

I don't believe there was an affidavit submitted by those individuals.

Chief Justice Rehnquist: Perhaps we've explored that as much as we need to.

Why don't you return to the merits?

Justice Souter: Mr. Karle...

Justice Ginsburg: May I ask just one further question on it?

I was surprised that you weren't content with saying, in response to the mootness suggestion, well, fine, then we must wipe out the Pennsylvania supreme court's decision, because you didn't get your crack at appealing it.

How can the plaintiff say, I won this wonderful victory, and now I'm going to go out of business, but I'm going to preserve, immune from any further review, this decision?

Mr. Karle: I would be content if this Court could order that this matter be remitted back to the State supreme court and the order vacated.

It was not my understanding that...

Justice Breyer: Are you sure we have the power to do that?

Mr. Karle: It was not my understanding that it was... this Court could do that, but...

Justice O'Connor: I'm not, either.

Mr. Karle: But if in its wisdom it could, I would invite it to do so.

Justice Scalia: But that would change your mind...

Unidentified Justice: [Laughter]

Justice Breyer: That would change your mind on the likelihood of the conduct recurring?

Quickly.

Unidentified Justice: [Laughter]

Justice Souter: Mr. Karle, going back to the issue that Justice O'Connor raised on whether this is content-based, she asked you, as I recall, whether it was content-based because it seems to be directed to the particular category of nude dancing, not nudity generally.

As you answer that, I wonder if you would consider a variation on that question, which is what was the nub of what was bothering me here as a seeming distinction from the situation in Glen.

The statute by its... the ordinance, rather, by its terms seems to cover all nudity.

The reference to it is, appears in the state of nudity, to describe what is proscribed, but there is at the same time the preamble that says, what we're really concerned with here is nude dancing, and there is a representation in the record... it may have been from you.

I forget now... to the effect that the statute is not going to be enforced against legitimate theater productions like Equitus, Equus and Oh Calcutta and so on.

And so my variation on the question is this.

It sounds as though perhaps facially you could say it covers all nudity, but as applied it certainly is not covering all nudity and distinctions are being made, insofar as I can tell they are being made on the basis of content, on the basis of the artistic quality of the production in which the nudity occurs.

Equus is left alone.

The barroom dancing is not left alone.

So on either Justice O'Connor's theory or my theory, isn't a content-based distinction being made here?

Mr. Karle: I would say no, Justice Souter.

The preamble purely acknowledges the restrictions on nude barroom dancing as enunciated by this Court in 1991.

It sets the parameters of the ordinance, which this Court held were constitutional.

Justice Souter: No, but the Barnes ordinance, the assumption of our decision, or our decisions, I guess, of those of us who would... did uphold the Barnes ordinance, the assumption was that it applied across the board, and that, in fact, hadn't been challenged.

And I think... I did not go back and reread my opinion, but I read excerpts from it in the brief, and my recollection is that I said, you know, if it turns out that either an overbreadth challenge or some kind of a challenge to the effect that it is not being enforced across the board were made, that might be a different case, and it sounds to me as though this is that different case.

Mr. Karle: And if I can address two points, Justice, the first is, you pointed to some references in the record which attribute statements to me which suggests that, or state that this will not be enforced against plays such as Hair, or Equus, or other theater productions.

As I stand here now, before this Court, we are standing on the face of this ordinance and it would be and it could be applied to those types of productions.

The reasons for those statements were concerns of the trial court, and we tried to...

Justice Souter: Yes, but they were concerns about constitutionality, and I didn't remember whether it was you or somebody, whoever was representing the city said...

Mr. Karle: No, that was me.

Justice Souter: this is in fact the way we're going to enforce it.

Justice Stevens: Wasn't that the...

Justice Scalia: Was that indeed the reason you would allow Equus, because you think the Constitution requires it?

Mr. Karle: Absolutely not, no.

Justice Scalia: Well, if the Constitution did require it, would you allow nudity in Equus?

Mr. Karle: If the Constitution required it, the plaintiff...

Justice Scalia: And would that be unlawful subject matter discrimination, if it's required by the Constitution?

Mr. Karle: Pardon me, Justice?

Justice Scalia: Would that be unlawful subject matter discrimination if it's required by the Constitution?

Mr. Karle: Absolutely not, not...

Justice Scalia: Of course not.

Mr. Karle: no.

Justice Scalia: So what you're saying is, you will enforce this ordinance... even if you said you would do it, not enforce it for Equus, you're saying you will enforce it to the extent the... you will enforce it by its terms to the extent the Constitution permits enforcement by its terms.

Mr. Karle: That's absolutely correct, Justice Scalia.

Justice Stevens: Well, but wait a minute...

Chief Justice Rehnquist: I don't follow that...

Justice O'Connor: just a minute here.

Justice Stevens: May I ask this question, please, counsel?

You made a solemn representation in open court to the judge, and you're saying that... you do not stand by that representation?

I'm not asking you why you made it.

Mr. Karle: No.

Justice Stevens: But it seems to me you did make a representation on the record that this ordinance would not be enforced against those two... in those two situations.

Mr. Karle: Your Honor...

Justice Stevens: Is that correct?

Mr. Karle: That's... that's correct.

Justice Stevens: Well, why should we not therefore assume that you... that the city will do exactly what you said the city would do in the open court proceedings that are part of this record?

Mr. Karle: Well, first of all, judge, anything I did was evidenced in the record, and the intent was to try to get the trial court to give the statute a limiting construction.

He seemed to be troubled by that.

I don't think I'm able to...

Justice Stevens: I don't really care what the... I don't really care what your intent was, it was strategic, tactical, or what, but you did make a representation as to the city's policy in enforcing this ordinance.

Mr. Karle: And that would be beyond my abilities as the City Solicitor...

Justice Kennedy: I think your answer is getting worse.

Unidentified Justice: [Laughter]

Justice Kennedy: You said, you know, I said this to the trial court so I could win in the trial court, but I'm not going to say it here so I'm going to win here.

That's what I'm hearing.

Justice Stevens: That's...

Mr. Karle: No, no, no.

I... that's not to mean I was making a misstatement to the trial court.

He didn't understand my position.

That's my point.

Justice Ginsburg: Do I understand that Equus in fact played?

Mr. Karle: Yes, it did.

Justice Ginsburg: And you didn't make any effort to stop it?

Mr. Karle: No.

Justice Ginsburg: And you didn't say the reason you did because you...

Mr. Karle: And...

Justice Ginsburg: You thought the constitution required it?

Mr. Karle: No.

The respondents portrayed that situation as a conscious, deliberate effort on our part to withhold...

Justice Ginsburg: But you knew that Equus was playing in town?

Mr. Karle: Right, and the trial court made a finding on that in the cert petition at page 27a, 14, the trial court said the play Equus, which featured frontal nudity, did appear in the City of Erie in October and November 1994, after passage of the ordinance.

And I know there was discussion in the respondent's brief that this was a conscious, deliberate effort, but all we acknowledge is, the play was here, and it wasn't enforced, and if I can go outside the record, the reason is, no one complained.

Justice Scalia: Yes, we do have some matters in our obscenity law jurisprudence about redeeming artistic or social value, don't we, and some people might think Equus has that.

Mr. Karle: It may, yes.

Justice Kennedy: Yes.

Mr. Karle: But certainly we were not trying to...

Justice Scalia: I can understand there may be some reason to think that lap-dancing is a little different from Equus as far as the Constitution is concerned.

This case does not involve lap-dancing, does it?

Justice Kennedy: Ah, well...

Unidentified Justice: [Laughter]

Justice Stevens: This case does not involve lap-dancing, does it?

Mr. Karle: There was lap-dancing in these... in the bar, yes.

Justice Breyer: So what am I supposed to do if...

Does the record show that?

there are some... if I think that some forms of this might involve no more than selling a sexual favor, like prostitution, no expression, no nothing, but other forms of this might be simply a low-brow kind of art, in which case you're starting to distinguish among kinds of art, so all would depend on what it is, a matter which the record is totally silent about?

What are we supposed to do?

Mr. Karle: Justice Breyer...

Justice Breyer: I'm not saying I do think that.

I'm saying that hypothetically.

Mr. Karle: Justice Breyer, if I can address that, I believe that that issue was already addressed squarely in the Barnes case, and it put limitations on regulation of nude barroom dancing, and we took the almost... almost identical language of Barnes, incorporated it in our ordinance, and are applying the law as it was stated in 1991 in that case.

We aren't making any judgments as to...

Justice O'Connor: Except the preamble is different, right?

Mr. Karle: The preamble simply to acknowledge your prior holding in 1991.

The respondents would have us... have the Court believe that by the city acknowledging a precedential case, that somehow vitiates the ordinance and makes it content-neutral.

Justice O'Connor: It's not that.

It says the intent is to focus and prohibit nude live entertainment.

I mean, that's what it says.

Mr. Karle: But Justice Connor, that's not what the whole ordinance said.

Justice O'Connor: O'Connor.

Mr. Karle: O'Connor.

But that's not what the whole ordinance says.

The whole ordinance speaks to regulation of public nudity in all places.

Justice Scalia: I suppose if you had people who had been walking down Main Street in the buff, the prologue might have said, we've had a lot of people walking down Main Street in the buff, and so we think there's a need for a statute against public nudity, and that statute would be generally applicable, I assume.

Mr. Karle: I...

Justice Scalia: Just because it was prompted by one particular incident, or series of incidents, doesn't render it any less generally applicable, does it?

Mr. Karle: I agree, Justice Scalia.

Justice Scalia: I thought you would.

Mr. Karle: All we would...

[Laughter]

All legislation makes mention of content.

That may be the triggering point for an ordinance or a statute, but just to mention it, or mention the content and acknowledging a trigger in point doesn't make it content-specific.

Justice Ginsburg: Mr. Karle, what about the Pennsylvania supreme court, that interpreted its law?

It seemed to read that preamble almost as a substitute provision of the statute.

The Pennsylvania supreme court thought that that preamble counted, and in determining whether it does or not, don't we owe some respect to the way the... Pennsylvania's highest court construes Pennsylvania law?

Mr. Karle: I disagree.

I believe the court failed to make any distinction in the two ordinances in Barnes.

I believe... that's our Supremacy Clause argument.

What the court did was simply apply the minority view in Barnes and gave our ordinance...

Justice Ginsburg: Well, it said something about the preamble, and that's what I'd like you to address, not its treatment of Barnes, but whether the preamble counted in determining the validity of this legislation.

Mr. Karle: The State supreme court, although it found that our ordinance had a purpose grounded in secondary effects, it said, stated that it was overshadowed by an unstated motive, so it really doesn't go on to tell us the distinguishing features.

Justice Ginsburg: Well, the part that I remember, and correct me if I'm wrong, is, it referred to something that was stated, the very words that Justice O'Connor quoted to you from the preamble.

That wasn't something unstated.

Mr. Karle: No, it was not.

That was definitely in the preamble.

Justice Ginsburg: And the Pennsylvania supreme court thought that that preamble counted.

Mr. Karle: I believe that the respondents have conceded that point.

If you refer to their brief at footnote 2, it says the Pennsylvania supreme court did articulate one important... distinguished between the case and Barnes.

It expressly noted that the ordinance on its face stated that it was adopted for the purpose of limiting a recent increase in nude live entertainment.

This, rather than Justice White's dissent in Barnes were the basis... if this were the basis rather than Justice White's dissent, then their reasoning would square with the judgment, so relying even on what our opponents are saying, they didn't make that square distinction to hinge the decision.

Justice Ginsburg: But I'm asking you about the relationship between two high courts, Pennsylvania's highest court and this Court, and doesn't this Court owe some respect to the way the Pennsylvania supreme court construed that statute?

Mr. Karle: I... it could accord it.

Our position is they didn't... they found the... they found Barnes and they found the Erie ordinance strikingly similar.

They did not go along and distinguish the ordinance.

If they did...

Justice Kennedy: How could anybody...

Mr. Karle: If they did... if they did, we wouldn't be here...

Justice Scalia: How could anybody construe it that way?

I mean, if the supreme court said, you know, black is white, would we not think that maybe they misspoke?

By its terms, the ordinance applies to all nudity, does it not?

Mr. Karle: That's correct, Justice Scalia.

Justice Scalia: And the prologue says what prompted this ordinance, but it doesn't say that that's all the ordinance applies to.

Mr. Karle: That's correct.

Justice Scalia: How can the Pennsylvania supreme court possibly have said that the ordinance only applies to nude... did it ever say that it applies only to nude dancing?

Mr. Karle: No, it didn't.

Justice Stevens: Of course, you told it it didn't apply to theater productions of nudity, so it probably relied on that in assuming that maybe...

Mr. Karle: That certainly...

Justice Stevens: it didn't quite might mean what it said.

Mr. Karle: Justice Stevens, that certainly wasn't in the opinion or the rationale in the Pennsylvania...

Chief Justice Rehnquist: Did you make any representation to the supreme court of Pennsylvania as to the application of the statute?

Mr. Karle: No.

Justice Souter: Yes, but if the supreme court of Pennsylvania wants to take a kind of strict original intent approach to its statutes and say, despite the generality of the language it only applies to the occasion for its enactment, I... would you say that we should override Pennsylvania's... the Pennsylvania supreme court's construction?

Mr. Karle: I think you're mandated to.

Chief Justice Rehnquist: Absolutely.

Justice Scalia: The republican form of Government provision.

We haven't applied it before, right?

Unidentified Justice: [Laughter]

Justice Breyer: Is that what this... are you... did the Pennsylvania supreme court say that it doesn't apply to people walking down the street without any clothes on?

Is that what they said?

Mr. Karle: That's the ultimate effect, because they struck those provisions in the ordinance, walking nude, walking around nude.

They struck them.

Justice Breyer: They said they struck them because they thought they were unconstitutional.

If they had been constitutional, would they say as a matter of statutory interpretation they don't apply except to clubs?

Mr. Karle: Perhaps, Justice Breyer.

Justice Breyer: Perhaps.

Justice Scalia: As I read the Pennsylvania supreme court's opinion, they do seem to assume what has been brought up in the discussion here, that the immediate motivation for this statute was the appearance of a lot of nude dancing establishments, and they acknowledge that.

And then they go on and seem to indicate that that motivation for it is enough to vitiate it under the Constitution, but I don't see that they anywhere say that it only applies to nude dancing establishments.

They seem to regard the fact that it was prompted by the appearance of the nude dancing establishments as enough to render it not content-neutral, which is quite different from what's being suggested.

And you agree with that, too, I think.

Unidentified Justice: [Laughter]

Mr. Karle: We provided a number of analyses that the supreme court could have utilized in order to reconcile the various opinions in Barnes such that it could construe our ordinance.

In a nutshell, what we are saying is, the State supreme court ruled as it did because it couldn't reconcile either the plurality or the concurring opinions of the Barnes case.

I suggest that, just looking at Barnes, there aren't five votes to mandate a strict scrutiny standard of review, so therefore the court was in clear error in utilizing a strict scrutiny standard of review in applying that review to the city's ordinance.

We believe our ordinance withstands intermediate scrutiny.

The Pennsylvania court acknowledged a purpose in the ordinance.

They termed it secondary effects.

Absent Pennsylvania supreme court's reliance on the unstated motive for finding the ordinance unconstitutional, which was drawn from the Barnes dissent, the regulation passed was unrelated to expression.

We utilized the same criteria, the O'Brien criteria, in the form of regulating the type of nudity and to... what we're saying is, to the extent the expression is affected, the ordinance is no more restrictive than necessary.

In other words pasties and G-strings requirement in Barnes are the same in ours, therefore the court should have found our ordinance constitutional on strict scrutiny.

Because Erie's ordinance is substantially indistinguishable from the statute in Barnes, the Pennsylvania court was constrained to uphold it.

Mr. Chief Justice, may I reserve?

Argument of John H. Weston

Chief Justice Rehnquist: Yes, you may, Mr. Karle.

Mr. Weston, we'll hear from you.

Mr. Weston: Mr. Chief Justice, and may it please the Court:

As is made clear throughout these proceedings and by the remarks today, Erie's only concern in considering, adopting, passing, and enforcing this ordinance was the notion of nude entertainment.

The language that Justice O'Connor quoted was accurate and illustrative of exactly what Erie's purposes were.

What makes this case so unusual was that Erie was unusually candid in terms of exactly what their true content-based motivations were in connection...

Chief Justice Rehnquist: Well, Mr. Weston, you talk about motivation, but if the ordinance on its face applies across the board, does motivation really make any difference?

Mr. Weston: Yes, it does, Your Honor, for a number...

Chief Justice Rehnquist: What's the authority for that?

Mr. Weston: Well, in some sense Barnes itself is authority for that, Mr. Chief Justice, because if the only issue that was relevant in this kind of analysis was what is the literal language of the legislation, Barnes would have been a very brief series of opinions in connection with the evaluation of the constitutionality of that legislation.

But in fact there were three, as this Court knows well, full opinions, each of which traced the history of the statute, analyzed it, its impact, what motivated the Framers, what didn't motivate, how it was being enforced, and so forth.

Where we deal, as we do here, with a piece of legislation which has the ability to dramatically impact substantial amounts of...

Justice O'Connor: All right, except the... Pennsylvania's highest court has said that at least one purpose of this ordinance was to prevent secondary effects of an unfortunate kind, sex crimes and that kind of thing, and I guess we accept that as a purpose of this statute, to curtail the secondary effects created by live, nude entertainment.

Mr. Weston: I beg your pardon, Justice O'Connor, I've heard you but I'm not quite sure I understand the...

Justice O'Connor: Well, I think that the Pennsylvania supreme court did go further and say that a purpose of the enactment of this ordinance was to prevent unfortunate secondary effects such as an increase in sex crimes, am I right?

Mr. Weston: It certainly stated what was in the preamble of the ordinance.

Interestingly, however, in that preamble the preamble noted that it was concerned, if the City of Erie was concerned about creating an atmosphere conducive to the possible creation of these so-called secondary effects, as opposed... and I don't mean to be splitting hairs here, but I think it's important in terms of the whole secondary effect, content-based, pretexual analysis... that all that the city was concerned about was the notion, well, that maybe something might be created in which something else might happen somewhere, some place, not terribly unlike some of the comments that are made about television.

But I think with respect to the ultimate analysis of even though there may be in the face of the preamble some suggestion that secondary effects played a role, number 1, there's certainly no evidence whatsoever in the record to support the notion that either there were secondary effects or...

Chief Justice Rehnquist: Well, we held in City of Renton v. Washington, whatever it was, that the legislature didn't have to make a study of individual situations.

It could rely on what other legislatures had done.

Mr. Weston: Absolutely, Mr. Chief Justice, and keeping that in mind, we are not suggesting that Erie was required to do its own studies, but the point is that Erie had no evidence, unlike Renton, which interestingly, as the Chief Justice points out, didn't do its own studies, but simply relied on studies that had been done by neighboring Seattle some years before, Erie not only didn't do its own studies, but did not rely on any studies.

The only thing in the legislative record reflective of any cerebration or consideration about this piece of legislation was the unanimous statements...

Chief Justice Rehnquist: Well, maybe they read the City of Renton opinion.

Mr. Weston: Well, perhaps they did, but if they did, then they were obligated to at least...

Chief Justice Rehnquist: I don't think so.

I don't think the City of Renton says that you're obligated to make your... to consider your own evidence.

Mr. Weston: Oh, but that's not what I'm saying, Mr. Chief Justice.

What I'm saying is that the enacting legislature... excuse me.

The enacting legislature is obligated to consider substantial evidence in connection with its evaluation and decisionmaking with respect to it.

It doesn't have to do its own.

When the Chief Justice says, well, perhaps they read the Renton case, but if they read the Renton case, then, like Renton, what their obligation was to do was to assert that they read the Renton case...

Justice Breyer: Well, but that...

Mr. Weston: and followed it and it was an influence of that...

Chief Justice Rehnquist: That was probably what the City of Renton did, but eventually if enough cities do that, can't it be simply treated as datum that these kind of things do bring bad secondary effects?

Mr. Weston: Well, I suppose it depends on what the state of the evidence is over what period of time and so forth, and what particular businesses, but this Court, not terribly long ago in Turner II, made it very clear that in consideration with the must-carry provisions in Congress that in order to evaluate content neutrality it was necessary for there to be substantial evidence in the record before Congress which Congress considered in connection with...

Justice Kennedy: But again, that was an enactment for the first time.

Does the Congress have to do it every time once it's made this line?

That's...

Mr. Weston: Well, I suppose... excuse me.

Justice Kennedy: In this case the question is whether or not these kinds of established... create secondary effects.

Mr. Weston: Well...

Justice Kennedy: And there having been some determination on that, including the Supreme Court opinions, can't cities rely on that?

Mr. Weston: I don't think so, Justice Kennedy, particularly because the potential for pretextual enforcement and pretextual legislation is simply too great, and in connection with legislation which has the potential and the reality of restricting vast quantities of protected expression in order to minimize that pretextual burden, it is... the pretextual potential... it's not a very great burden from a First Amendment potential to require an enacting legislature simply to articulate the legitimate concerns that it has, what is motivating it, and the basis on which it is passing...

Justice Ginsburg: Mr. Weston, would the City of Erie have had to do that if, instead of saying there shall be no totally nude dancing, it said, there shall be no totally nude dancing establishments within a certain distance from each other?

Mr. Weston: Well, in that sense, Justice Ginsburg, it would have been operating in more familiar territory in the sense of adopting some sort of adult zoning legislation which, interestingly, Erie of course had in existence.

Justice Scalia: Mr. Weston, I gather you now think this case is moot?

Mr. Weston: Your Honor...

Justice Scalia: Is that a hard question?

Mr. Weston: It's a difficult analysis, Justice Scalia.

Justice Scalia: Well, I didn't get this notion from nowhere.

I thought you asserted it was moot.

Unidentified Justice: [Laughter]

Mr. Weston: The reason it's a difficult analysis is because prior counsel responsibly brought to the Court's attention the circumstances of the ownership, lack of ownership, sale of the property and so forth, at the earliest possible moment, when he learned about it.

The motion was properly made to the Court, and the Court denied the motion.

When I say it's a hard question, I stand here before you having spent the last 3 months following this Court's dismissal of the... or denial of the motion to dismiss, and so I suppose I'm personally somewhat conflicted in connection with the efforts that we put forward with respect to this.

Justice Scalia: What is the state of affairs?

The corporation is still in existence?

Mr. Weston: Yes.

The corporation is technically still extant.

To the best of my knowledge, however, Justice Scalia, nothing differs from what the motion to dismiss said, which is to say that the owner of the corporation sold the property.

There is no adult business on the premises.

The owner of the property has no other involvement in any other adult business in Erie or anywhere else, and has no intention to resume such activity.

Justice Ginsburg: Then why isn't the proper result that the Pennsylvania supreme court decision should be vacated?

Mr. Weston: Well, probably because at least as far as the Pennsylvania supreme court's consideration of the case, the matter is concluded.

In other words, there was a petition for rehearing that was filed before the Pennsylvania supreme court, which the Pennsylvania supreme court denied, and as far as the Pennsylvania supreme court is concerned, there was a full, litigated hearing...

Justice Ginsburg: But they were interpreting the Federal Constitution deliberately, not the State constitution.

Mr. Weston: Yes.

Justice Ginsburg: And the City of Erie successfully persuaded this Court to hear the question.

Mr. Weston: Of course that's true, Justice Ginsburg.

Justice Ginsburg: So at that point, why isn't it fair to say, all right, it's out of business, but you can't ask for a voluntary dismissal without prejudice this late in the game, which is essentially what you're asking for?

You're saying, yeah, we won in the supreme court, we want to carry on that victory, but the case is moot, so it's essentially a voluntary dismissal that you're asking for.

Mr. Weston: If I may make it in the simplest possible terms, at this juncture the motion has been... and I don't really know else how to say it this way.

The motion was made, it was responsibly brought to the attention of the Court, the Court denied it.

We've prepared for the hearing on the merits, and we're here to proceed as the Court wishes.

The opinion of the Pennsylvania supreme court appears to be final as far as the Pennsylvania supreme court is concerned, but with respect to it, I'm not sure that the circumstances would have been terribly different with respect to the Pennsylvania supreme court if the relevant individual had died as opposed to simply going out of business and no longer...

Justice Ginsburg: Yes, but I take you say, you made the motion, it was denied, that's the end of the matter.

But I'm asking you to consider, suppose the motion were held in abeyance, and you say, we went out of business, we want to withdraw from the field.

Wouldn't the proper answer be, okay, but the judgment of the Pennsylvania supreme court is vacated?

Mr. Weston: Again, as I've tried to suggest, it seems to me, in terms of the litigation and the litigants, that the matter was fully briefed, fully litigated, and fully decided in an adversarial proceeding at the Pennsylvania supreme court, and it was final as to that court.

To the extent that the plaintiff no longer has a further interest in the matter, it would appear that to the extent that this Court deems it appropriate to moot the action, that that would leave the situation as the status quo ante in the Pennsylvania supreme court.

Chief Justice Rehnquist: I suppose it might depend on whether the supreme court of Pennsylvania regards itself as being bound in the same way we do about not deciding moot cases.

In a couple of cases that we've heard here, we have... Duremas, for example... we have simply dismissed an appeal, feeling that we don't have the authority to vacate a State court judgment the way we would a Federal court judgment.

Mr. Weston: Yes, and I think... but conversely, Mr. Chief Justice, I thought that the reasoning that you expressed in your concurring opinion in the Honig case about, from the perspective of mootness, that once a case had reached this Court and had been accepted for jurisdiction, that perhaps the traditional mooting criteria should drop off.

Chief Justice Rehnquist: I was alone in the Honig case.

Unidentified Justice: [Laughter]

Mr. Weston: I have never noted any temerity on the part of the Chief Justice to be alone in that or any other circumstances.

Justice Stevens: May I go back to secondary effects for a minute, now that we're through with discussing mootness?

Do you agree that if there were secondary effects here, such as Justice Souter described in his opinion, that that would justify a total prohibition on the activity, or that... did that doctrine merely apply to the location where the activity may take place?

Do you think there's a distinction there, or not?

Mr. Weston: Absolutely, Justice Stevens.

The... this Court has never utilized secondary effects as a justification for a total ban on protected activity.

Obviously, I have a familiarity with when secondary effects first entered the lexicon in Young v. American Mini Theaters and, of course, it was utilized then in the analyses with which you and I are familiar.

Justice Stevens: Let me just suggest that perhaps Justice Souter's opinion in Barnes is inconsistent with that submission.

Mr. Weston: Just... yes, exactly yes to the question.

Justice Souter's opinion sought, it seemed to me, to utilize the notion of secondary effects which have traditionally been applied solely for the purpose of limiting a particular location, perhaps in a time, place, and manner context, to the much more draconian and speech-burdening concept of totally banning everywhere in a jurisdiction vast quantities of presumptively protected...

Justice Souter: I think the point was... whether it was a wise or an unwise point I'll leave for the judgment of my peers, but I think the point was that the O'Brien case itself was a secondary effects case.

I didn't reread O'Brien before this, but my recollection is that the concern with the burning of the draft card was that the destruction of draft cards would make it difficult to administer the draft laws.

It was not a sort of talismanic injury to the draft card itself.

So that in fact the occasion for the O'Brien holding was to look ahead to what this kind of act is going to threaten for the future throughout a system, and it may or may not be wise to extend the kind of sexual secondary effects into the O'Brien rationale.

I thought it was, but I'm willing to hear argument on it, certainly, from those who disagree.

But I think that Brien was a kind of secondary effects case... O'Brien.

Mr. Weston: Justice Souter, I think that in fact, with all respect, O'Brien was absolutely not a secondary effects case, because the nature of the harm asserted by the Government in the face of the challenge to the antidraft card destruction statute on the basis of its expressive impact was that the destruction of the draft card in and of itself, and the deprivation of the draft card, was the very thing that Congress had targeted with the specific new legislation.

The Chief Justice was very, very clear at the time that... and Your Honor, Justice Souter, you may recall that in O'Brien there had been new legislation adopted which is what had been, what had triggered the prosecution's...

Justice Souter: I didn't reread O'Brien before this argument, so I'll take your word with...

Mr. Weston: But the prior legislation had required that all registrants maintain in their possession their draft card and their classification certificate.

The new legislation banned the destruction of the card and the certificate, and the expression of the Court in upholding the legislation was simply that it was very important to the selective service that everybody maintain in their possession a draft card and the classification, so that what was at issue in O'Brien was not secondary at all, but absolutely and primary effect, and...

Justice Souter: Assuming the distinction is to be... I know... maybe I shouldn't pursue this, because I don't think this case turns on it, but I'll... one last question.

I promise you it's my last question.

Mr. Weston: Please.

Justice Souter: Assuming that the primary-secondary distinction can be made here on viewing O'Brien as you've just described it, why should that make a difference?

It may make a difference in proof of effect, in proof of harm, but why should that make a difference in principle?

Mr. Weston: Well, the primary reason is, is that to the extent that there is an assertion that some secondary or tertiary or far distant activity is what is the source of concern to Government, and that on that basis there's going to be a dramatic restriction or banning, total banning of expression, it simply is too far removed from the nature of the expression which is protected, or which we seek to protect under the First Amendment and our general approaches to it.

Justice Souter: So that a secondary effect, almost by definition, is something that does not rise to the level of importance to justify it.

That...

Mr. Weston: Yes.

I think yes.

I think that would be exactly the point, whether because it simply isn't important enough, whether it simply isn't linked enough to justify terminating or banning expression, or whether it simply doesn't give us enough of an opportunity to evaluate the potential pretextual application of an asserted justification for silencing unpopular expression.

And that's really what makes these cases difficult, because with respect to adult entertainment the businesses are enormously unpopular with city government, or county government.

Government is terribly hostile with respect to these businesses, and what seems to happen, unfortunately, really much like what Erie did.

Erie had a specific target in mind.

It was only nude dancing.

It was only nude entertainment.

But what Erie did, instead of passing direct legislation which implicated what their sole concern was and then allowing that legislation to be challenged in the crucible of strict scrutiny, where there could be a fair evaluation of really what was going on in the situation, Erie wrapped its limited and specific concern inside a piece of legislation of seemingly general applicability.

Justice Scalia: Of seeming... do you really think that if someone would walk nude down the Main Street in Erie he would not be arrested under this ordinance?

Mr. Weston: Justice Scalia...

Justice Scalia: Do you really think this ordinance only is going to be applied to nude dancing establishments?

Mr. Weston: Justice Scalia, there was already a State statute in Pennsylvania which would have prohibited exactly the conduct to which Your Honor refers.

Justice Scalia: But not nude dancing?

Mr. Weston: The State... I beg your pardon?

Justice Scalia: But not nude dancing?

Mr. Weston: Not nude dancing in private, in a private circumstance where there was no affront, where nobody was going to be offended, where there was no possibility for juveniles.

The only remaining gap in the State and city legislation was nude entertainment, which is specifically what Erie targeted, as they were candid enough to say in their preamble, as their legislators were candid enough...

Chief Justice Rehnquist: Well, the sort of thing you're talking about happens all the time, it seems to me.

It happened in the Fourteenth Amendment.

The concern of the Congress was the newly freed slaves, and yet they wrote a provision much, much more broadly than that.

Frequently, a particular incident will cause legislation to be passed and the legislation is broadly framed.

I've never thought there was any objection to that.

Mr. Weston: Well, Mr. Chief Justice, the problem, the objection in this setting is that we are all being asked to participate in some sort of charade.

Erie had...

Chief Justice Rehnquist: Why is it... it's only a charade if the ordinance is in fact... is going to be enforced only against nude dancing places, and really, as Justice Scalia says, someone walking down the Main Street of Erie in the nude will not be prosecuted, but I don't get any suggestion of that here.

Mr. Weston: Well, I suggest that it's a charade in this sense.

If Erie were to have passed its ordinance specifically targeting the only interest it had in passing the legislation, it would be viewed as a direct and specific restraint on expression...

Chief Justice Rehnquist: Well, so they had a good lawyer.

Mr. Weston: But that's what the charade is, and it seems to me that where we deal with expression, and where there's legislation that either inevitably is going to affect vast quantities of expression, or where on its face, or where it will, just simply by virtue of its passage, affect enormous amounts of recognized expression, we ought not to countenance the notion of true judicial strict...

Justice Breyer: I find it difficult to figure out how to administer that principle.

I mean, I am familiar with... I have some sympathy to it, but I don't see how it works.

That is, the... because legislatures don't normally say always what their actual motive is, so if they pass legislation dealing with importing fish, but their real objective is to, you know, hurt somebody individually, are we supposed to start looking into that?

Mr. Weston: Well, I think the difference is, Justice Breyer, that in this case and in these cases we deal with expression, we deal with the most elevated aspect of our society.

Justice Breyer: I see that.

The other question I have... I see where you're going on that, but the other question I have, which is...

Mr. Weston: And...

Justice Breyer: All right, finish that if you'd like, because if you're going to say a special...

Mr. Weston: Thank you.

I just want to say that in the ordinary course the fish statute with respect to trying to hurt somebody individually tends not to be the kind of thing which is likely going to happen.

It will be an unusual setting, something that will be fairly easy to prove, and be something that will be palpable.

With respect to the expression setting, we do not permit Government simply to have the easy ability to interfere with expression absent demonstrable justifications, whether they... of a content-neutral nature in order to establish the justification, whether it be compelling need or otherwise, to interfere with what otherwise in our society is presumptively protected, and it makes it worse in this case, because at least on the basis of Barnes we had eight justices, all of whom noted and held that this kind of expression, this kind of entertainment was protected.

Now... and I know I interrupted your question.

Forgive me, please, if...

Justice Breyer: No, it's a different question, which is, I don't see quite how to proceed.

The first assumption would be... it's an assumption that there are some kinds of nude dancing that are not expressive at all, rather, they're forms, let's say, of prostitution, or sexual behavior, and second, that maybe that's what they're going after here, and third, if it's so, how would I know?

There's no record.

What do I do?

Mr. Weston: Well, firstly, with respect to the notion that there might be nude dancing which involves prostitution, or...

Justice Breyer: I don't mean it involves prostitution.

I mean, it is no more related to expression than turning a mouse loose in a house with an intent to frighten someone.

You're intending to get a reaction, and that doesn't have to do with aesthetics, and it doesn't have to do with expression.

Mr. Weston: Of course.

Of course.

Justice Breyer: And I take it your predecessor here refused to make any stipulation that it had anything to do with expression here, i.e., expression as we normally mean it in a political or language or aesthetic sense, i.e., not to do with that, and I take it there was no... you know, they wanted to stipulate there was some kind of expression, and you said no.

Your side said no.

Do you see what I'm saying?

And you might disagree with it.

You might say there is no such kind of nude dancing; all nude dancing is, in fact, aesthetic.

Is that your view?

Or, it could be, no, there is some, but it's mixed up with other.

What is your view?

Mr. Weston: Our view is that under this ordinance and on this record, because we are making a facial challenge to this, this ordinance does not regulate touching, prostitution, or whatever.

The legislation that we challenge, and the only legislation that we challenge, interdicts and prohibits only nude dancing.

To the extent that there is other nude dancing about which Government is concerned, there are certainly State prostitution statutes in Pennsylvania, the point being that from our perspective the nature of the dance, and dance itself, is a recognized form of expression.

Justice Scalia: Suppose it is, and so is burning a flag, I suppose, and with burning a flag we would certainly say that if there were a general law against burning anything in the public streets and you happened to burn a flag, although it is a form of expression, the State has rendered that particular form of expression unlawful for reasons unconnected with the expression itself, and therefore the statute is constitutional.

Why shouldn't we say the same thing about nude dancing?

It may well be a form of expression, but for reasons that have nothing to do with what is being expressed, but which have to do simply with the nudity, that particular form of expression has been rendered unlawful.

Express the thought in some other way, just as you must express the thought in some other way than burning a flag in the public streets.

Mr. Weston: If there were going to be that assertion made and that conclusion drawn, Justice Scalia, it ought to be done under a standard of strict scrutiny to be able to evaluate the relationship between the asserted prohibition and the impact on speech in a meaningful way that is protective of expression...

Justice Scalia: I accept it, that it's strict scrutiny.

It certainly is strict scrutiny in the flag-burning case, but I have no doubt that our decision in Johnson, which said that the law specifically directed against burning flags was unconstitutional, would have come out the other way if it were a general municipal ordinance against burning matter in the street, leaves, flags, rags, anything else.

That surely would... if he was prosecuted for that, he surely would have been convicted.

Mr. Weston: But this ordinance, although seemingly one of general application, unlike the antiburning legislation to which you referred in the streets, inevitably has an impact on a recognized form of vast quantities of expression.

Justice Scalia: Gee, but so does prohibiting the burning of a flag.

In fact, it's to my mind a much more cognizable communication of an idea than dancing is, nude or otherwise.

Mr. Weston: It may well be, but in terms of... and it's... and in terms of the number of examples of which flag-burning... I'm sorry, I'm saying this poorly.

The amount of speech that is potentially interdicted by the anti-leaf-burning legislation in Texas to which you refer is minimal compared to the impact on speech of a piece of legislation that specifically bans all nudity at all times in 1999, when nude entertainment has become a significant staple of the American cultural scene, which means that there are vast numbers of not only nude dancers...

Justice Scalia: It depends where in America you are, Mr. Weston.

Mr. Weston: Well, I'm not sure that's correct, Justice Scalia.

Justice Scalia: You come from Beverly Hills, and it may well be out there, but I'm not sure that I would say that throughout America.

Mr. Weston: Our office is no longer there, but my... our...

[Laughter]

As the amicus briefs made clear, there are something like 3,000 adult clubs throughout the United States, that there was more income generated from those establishments than from all theaters, plays, drama groups throughout the United States combined.

The point is that in the nude... in the leaf-burning situation, the potential impact on expression was minimal.

In this circumstance, both on... particularly on this record, where the absolute basis for passing it was limited exclusively to expression, it is inappropriate to use the deferential standard, whether of rational basis, which you, Justice Scalia, employed in Barnes, or even O'Brien itself, O'Brien not having been designed for that kind of circumstance and that kind of situation, either because there was no showing of a content-neutral basis for the legislation, number 1, or because simply of the application of the legislation.

Chief Justice Rehnquist: Thank you, Mr. Weston.

Mr. Weston: Thank you, Mr. Chief Justice.

Rebuttal of Gregory A. Karle

Chief Justice Rehnquist: Mr. Karle, you have 2 minutes remaining.

Mr. Karle: Thank you, Mr. Chief Justice, and may it please the Court:

I'd like to make a couple of points.

The statute in Barnes, which we utilized as the pattern for our ordinance, simply is to accord the same amount of protection and the same regulation as in Barnes.

That's the limitation, notwithstanding the argument that it makes it content-specific.

My opponent also pointed to, in his argument, a State statute regulating something in the nature of sex crimes.

That is in our crimes code, and that requires an intent element.

Our ordinance does not require an intent.

It's a conduct ordinance, being in a state of nudity...

Justice Stevens: But would the State statute cover walking down the street in the nude?

Mr. Karle: It would cover walking down the street in the nude if... a person commits a misdemeanor in the second degree if the person for the purpose of arousing or gratifying sexual desire of himself or any person, other than his spouse...

Justice Stevens: So that in Pennsylvania it is perfectly... every place except Erie, it's perfectly all right for a citizen to walk down the street in the nude if he just wants to get a lot of sunshine.

Mr. Karle: Well, no...

[Laughter]

Well, no, it's a crime in Pennsylvania if the intent is...

Justice Stevens: No, he doesn't have... his intent is to sunbathe as much as possible.

Is that a crime in Pennsylvania or not?

Mr. Karle: Gratifying sexual desire is the crime.

Justice Stevens: So that in Pennsylvania, for the purpose I described, you may walk around nude.

Mr. Karle: Under our ordinance, not, because...

Justice Stevens: Not in downtown Erie, but in the rest of the State?

Mr. Karle: I can't speak to Upper Macungie township, or...

Justice Stevens: No, no, no, but as a matter of State law it's perfectly okay.

Mr. Karle: Yes.

Yes.

Justice Stevens: That's a pretty good answer to his argument.

Mr. Karle: But at any rate, Justice Stevens, it requires an intent element.

Justice Ginsburg: Mr. Karle, the Pennsylvania supreme court did, in its list of 14 facts that it considered important, say the play Equus, which featured frontal nudity, did appear in the city of Erie.

Isn't the matter of enforcement a part of the case, at least that the Pennsylvania supreme court thought it was dealing with?

Mr. Karle: I'm unfamiliar with that provision.

Justice Ginsburg: It's on page 27a of the petition for writ of certiorari.

It's the Pennsylvania supreme court's decision that you're challenging.

Mr. Karle: That's the trial court's...

Justice Ginsburg: Oh, the trial court decision.

Mr. Karle: Yes.

That's just the trial court...

Justice Ginsburg: Did... I don't recall, then, did the Pennsylvania supreme court mention that?

Mr. Karle: No, they didn't...

Chief Justice Rehnquist: They didn't.

Mr. Karle: I don't believe.

Chief Justice Rehnquist: Thank you, Mr. Karle.

Mr. Karle: Thank you.

Chief Justice Rehnquist: The case is submitted.