Full opinion text
Justice O’Connor announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, and an opinion with respect to Parts III and IV, in which The Chief Justice, Justice Kennedy, and Justice Breyer join. The city of Erie, Pennsylvania, enacted an ordinance banning public nudity. Respondent Pap’s A. M. (hereinafter Pap’s), which operated a nude dancing establishment in Erie, challenged the constitutionality of the ordinance and sought a permanent injunction against its enforcement. The Pennsylvania Supreme Court, although noting that this Court in Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991), had upheld an Indiana ordinance that was “strikingly similar” to Erie’s, found that the public nudity sections of the ordinance violated respondent’s right to freedom of expression under the United States Constitution. 553 Pa. 348, 356, 719 A. 2d 273, 277 (1998). This ease raises the question whether the Pennsylvania Supreme Court properly evaluated the ordinance’s constitutionality under the First Amendment. Wé hold that Erie’s ordinance is a content-neutral regulation that satisfies the four-part test of United States v. O’Brien, 391 U. S. 367 (1968). Accordingly, we reverse the decision of the Pennsylvania Supreme Court and remand for the consideration of any remaining issues. I On September 28,1994, the city council for the city of Erie, Pennsylvania, enacted Ordinance 75-1994, a public indecency ordinance that makes it a summary offense to knowingly or intentionally appear in public in a “state of nudity.” Respondent Pap's, a Pennsylvania corporation, operated an establishment in Erie known as “Kandyland” that featured totally nude erotic dancing performed by women. To comply with the ordinance, these dancers must wear, at a minimum, “pasties” and a “G-string.” On October 14, 1994, two days after the ordinance went into effect, Pap’s filed a complaint against the city of Erie, the mayor of the city, and members of the city council, seeking declaratory relief and a permanent injunction against the enforcement of the ordinance. The Court of Common Pleas of Erie County granted the permanent injunction and struck down the ordinance as unconstitutional. Civ. No. 60059-1994 (Jan. 18, 1995), Pet. for Cert. 40a. On cross appeals, the Commonwealth Court reversed the trial court’s order. 674 A. 2d 388 (1996). The Pennsylvania Supreme Court granted review and reversed, concluding that the public nudity provisions of the ordinance violated respondent’s rights to freedom of expression as protected by the First and Fourteenth Amendments. 558 Pa. 348, 719 A. 2d 273 (1998). The Pennsylvania court first inquired whether nude dancing constitutes expressive conduct that is within the protection of the First Amendment. The court noted that the act of being nude, in and of itself, is not entitled to First Amendment protection because it conveys no message. Id., at 354, 719 A. 2d, at 276. Nude dancing, however, is expressive conduct that is entitled to some quantum of protection under the First Amendment, a view that the Pennsylvania Supreme Court noted was endorsed by eight Members of this Court in Barnes. 553 Pa., at 354, 719 A. 2d, at 276. The Pennsylvania court next inquired whether the government interest in enacting the ordinance was content neutral, explaining that regulations that are unrelated to the suppression of expression are not subject to strict scrutiny but to the less stringent standard of United States v. O’Brien, supra, at 377. To answer the question whether the ordinance is content based, the court turned to our decision in Barnes. 553 Pa., at 355-356, 719 A. 2d, at 277. Although the Pennsylvania court noted that the Indiana statute at issue in Barnes “is strikingly similar to the Ordinance we are examining,” it concluded that “[ujnfortunately for our purposes, the Barnes Court splintered and produced four separate, non-harmonious opinions.” 553 Pa., at 356, 719 A. 2d, at 277. After canvassing these separate opinions, the Pennsylvania court concluded that, although it is permissible to find precedential effect in a fragmented decision, to do so a majority of the Court must have been in agreement on the concept that is deemed to be the holding. See Marks v. United States, 430 U. S. 188 (1977). The Pennsylvania court noted that “aside from the agreement by a majority of the Barnes Court that nude dancing is entitled to some First Amendment protection, we can find no point on which a majority of the Barnes Court agreed.” 553 Pa., at 358, 719 A. 2d, at 278. Accordingly, the court concluded that “no clear precedent arises out of Barnes on the issue of whether the [Erie] ordinance . . . passes muster under the First Amendment.” Ibid. Having determined that there was no United States Supreme Court precedent on point, the Pennsylvania court conducted an independent examination of the ordinance to ascertain whether it was related to the suppression of expression. The court concluded that although one of the purposes of the ordinance was to combat negative secondary effects, “[ilnextricably bound up with this stated purpose is an unmentioned purpose ... to impact negatively on the erotic message of the dance.” Id., at 359, 719 A. 2d, at 279. As such, the court determined the ordinance was content based and subject to strict scrutiny. The ordinance failed the narrow tailoring requirement of strict scrutiny because the court found that imposing criminal and civil sanctions on those who commit sex crimes would be a far narrower means of combating secondary effects than the requirement that dancers wear pasties and G-strings. Id., at 361-362, 719 A. 2d, at 280. Concluding that the ordinance unconstitutionally burdened respondent’s expressive conduct, the Pennsylvania court then determined that, under Pennsylvania law, the public nudity provisions of the ordinance could be severed rather than striking the ordinance in its entirety. Accordingly, the court severed §§l(c) and 2 from the ordinance and reversed the order of the Commonwealth Court. Id., at 363-364, 719 A. 2d, at 281. Because the court determined that the public nudity provisions of the ordinance violated Pap’s right to freedom of expression under the United States Constitution, it did not address the constitutionality of the ordinance under the Pennsylvania Constitution or the claim that the ordinance is unconstitutionally overbroad. Ibid. In a separate concurrence, two justices of the Pennsylvania court noted that, because this Court upheld a virtually identical statute in Barnes, the ordinance should have been upheld under the United States Constitution. 553 Pa., at 364, 719 A. 2d, at 281. They reached the same result as the majority, however, because they would have held that the public nudity sections of the ordinance violate the Pennsylvania Constitution. Id., at 370, 719 A. 2d, at 284. The city of Erie petitioned for a writ of certiorari, which we grantéd. 526 U. S. 1111 (1999). Shortly thereafter, Pap’s filed a motion to dismiss the case as moot, noting that Kandyland was no longer operating as a nude dancing club, and Pap’s was not operating a nude dancing club at any other location. Respondent’s Motion to Dismiss as Moot 1. We denied the motion. 527 U. S. 1034 (1999). II As a preliminary matter, we must address the justiciability question. “ ‘[A] case is moot when the issues presented are no longer “live” or the parties lack a legally cognizable interest in the outcome.’ ” County of Los Angeles v. Davis, 440 U. S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U. S. 486, 496 (1969)). The underlying concern is that, when the challenged conduct ceases such that “ ‘there is no reasonable expectation that the wrong will be repeated,’ ” United States v. W T. Grant Co., 345 U. S. 629, 633 (1953), then it becomes impossible for the court to grant “ ‘any .effectual relief whatever’ to [the] prevailing party,” Church of Scientology of Cal. v. United States, 506 U. S. 9, 12 (1992) (quoting Mills v. Green, 159 U. S. 651, 653 (1895)). In that case, any opinion as to the legality of the challenged action would be advisory. Here, Pap’s submitted an affidavit stating that it had “ceased to operate a nude dancing establishment in Erie.” Status Report Re Potential Issue of Mootness 1 (Sept. 8, 1999). Pap’s asserts that the ease is therefore moot because “[t]he outcome of this case will have no effect upon Respondent.” Respondent’s Motion to Dismiss as Moot 1. Simply closing Kandyland is not sufficient to render this case moot, however. Pap’s is still incorporated under Pennsylvania law, and it could again decide to operate a nude dancing establishment in Erie. See Petitioner’s Brief in Opposition to Motion to Dismiss 3. Justice Scalia differs with our assessment as to the likelihood that Pap’s may resume its nude dancing operation. Several Members of this Court can attest, however, that the “advanced age” of Pap’s owner (72) does not make it “absolutely clear” that a life of quiet retirement is his only reasonable expectation. Cf. Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U. S. 167 (2000). Moreover, our appraisal of Pap’s affidavit is influenced by Pap’s failure, despite its obligation to the Court, to mention a word about the potential mootness issue in its brief in opposition to the petition for writ of certiorari, which was filed in April 1999, even though, as Justice Scalia points out, Kandyland was closed and that property sold in 1998. See Board of License Comm’rs of Tiverton v. Pastore, 469 U. S. 288, 240 (1985) (per curiam). Pap’s only raised the issue after this Court granted certiorari. In any event, this is not a run of the mill voluntary cessation case. Here it is the plaintiff who,- having prevailed below, now seeks to have the case declared moot. And it is the city of Erie that seeks to invoke the federal judicial power to obtain this Court’s review of the Pennsylvania Supreme Court decision. Cf. ASARCO Inc. v. Kadish, 490 U. S. 605, 617-618 (1989). The city has an ongoing injury because it is barred from enforcing the public nudity provisions of its ordinance. If the challenged ordinance is found constitutional, then Erie can enforce it, and the availability of such relief is sufficient to prevent the case from being moot. See Church of Scientology of Cal. v. United States, supra, at 13. And Pap’s still has a concrete stake in the outcome of this ease because, to the extent Pap’s has an interest in resuming operations, it has an interest in preserving the judgment of the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting to manipulate the Court’s jurisdiction to insulate a favorable decision from review further counsels against a finding of mootness here. See United States v. W. T. Grant Co., supra, at 632; cf. Arizonans for Official English v. Arizona, 520 U. S. 43, 74 (1997). Although the issue is close, we conclude that the ease is not moot, and we turn to the merits. M H-t Being m a state of nudity” is not an inherently expressive condition. As we explained in Barnes, however, nude dancing of the type at issue here is expressive conduct, although we think that it falls only within the outer ambit of the First Amendment’s protection. See Barnes v. Glen Theatre, Inc., 501 U. S., at 565-566 (plurality opinion); Schad v. Mount Ephraim, 452 U. S. 61, 66 (1981). To determine what level of scrutiny applies to the ordinance at issue here, we must decide “whether the State’s regulation is related to the suppression of expression.” Texas v. Johnson, 491 U. S. 397, 403 (1989); see also United States v. O’Brien, 391 U. S., at 377. If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the “less stringent” standard from O’Brien for evaluating restrictions on symbolic speech. Texas v. Johnson, supra, at 403; United States v. O’Brien, supra, at 377. If the government interest is related to the content of the expression, however, then the regulation falls outside the scope of the O’Brien test and must be justified under a more demanding standard. Texas v. Johnson, supra, at 403. In Barnes, we analyzed an almost identical statute, holding that Indiana’s public nudity ban did not violate the First Amendment, although no five Members of the Court agreed on a single rationale for that conclusion. We now clarify that government restrictions on public nudity such as the ordinance at issue here should be evaluated under the framework set forth in O’Brien for content-neutral restrictions on symbolic speech. The city of Erie argues that the ordinance is a content-neutral restriction that is reviewable under O’Brien because the ordinance bans conduct, not speech; specifically, public nudity. Respondent counters that the ordinance targets nude dancing and, as such, is aimed specifically at suppressing expression, making the ordinance a content-based restriction that must be subjected to strict scrutiny. The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. 553 Pa., at 354, 719 A. 2d, at 277. By its terms, the ordinance regulates conduct alone. It does not target nudity that contains an erotic message; rather, it bans all public nudity, regardless of whether that nudity is accompanied by expressive activity. And like the statute in Barnes, the Erie ordinance replaces and updates provisions of an “Indecency and Immorality” ordinance that has been on the books since 1866, predating the prevalence of nude dancing establishments such as Kandyland. Pet. for Cert. 7a; see Barnes v. Glen Theatre, Inc., supra, at 568. Respondent and Justice Stevens contend nonetheless that the ordinance is related to the suppression of expression because language in the ordinance’s preamble suggests that its actual purpose is to prohibit erotic dancing of the type performed at Kandyland. Post, at 318 (dissenting opinion). That is not how the Pennsylvania Supreme Court interpreted that language, however. In the preamble to the ordinance, the city council stated that it was adopting the regulation “ Tor the purpose of limiting a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.’” 553 Pa., at 359, 719 A. 2d, at 279. The Pennsylvania Supreme Court construed this language to mean that one purpose of the ordinance was “to combat negative secondary effects.” Ibid. As Justice Soutee noted in Barnes, “on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression.” 501 U. S., at 585 (opinion concurring in judgment). In that sense, this case is similar to O’Brien. O’Brien burned his draft registration card as a public statement of his antiwar views, and he was convicted under a statute making it a crime to knowingly mutilate or destroy such a card. This Court rejected his claim that the statute violated his First Amendment rights, reasoning that the law punished him for the “noncommunicative impact of his conduct, and for nothing else.” 391 U. S., at 382. In other words, the Government regulation prohibiting the destruction of draft cards was aimed at maintaining the integrity of the Selective Service System and not at suppressing the message of draft resistance that O’Brien sought to convey by burning his draft card. So too here, the ordinance prohibiting public nudity is aimed at combating crime and other negative secondary effects caused by the presence of adult entertainment establishments like Kandyland and not at suppressing the erotic message conveyed by this type of nude dancing. Put another way, the ordinance does not attempt to regulate the primary effects of the expression, i e., the effect on the audience of watching nude erotic dancing, but rather the secondary effects, such as the impacts on public health, safety, and welfare, which we have previously recognized are “caused by the presence of even one such” establishment. Renton v. Playtime Theatres, Inc., 475 U. S. 41, 47-48, 50 (1986); see also Boos v. Barry, 485 U. S. 312, 321 (1988). Although the Pennsylvania Supreme Court acknowledged that one goal of the ordinance was to combat the negative secondary effects associated with nude dancing establishments, the court concluded that the ordinance was nevertheless content based, relying on Justice White’s position in dissent in Barnes for the proposition that a ban of this type necessarily has the purpose of suppressing the erotic message of the dance. Because the Pennsylvania court agreed with Justice White’s approach, it concluded that the ordinance must have another, “unmentioned” purpose related to the suppression of expression. 553 Pa., at 359, 719 A. 2d, at 279. That is, the Pennsylvania court adopted the dissent’s view in Barnes that “ ‘[sjinee the State permits the dancers to perform if they wear pasties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutory prohibition.” 553 Pa., at 359, 719 A. 2d, at 279 (quoting Barnes, supra, at 592 (White, J., dissenting)). A majority of the Court rejected that view in Barnes, and we do so again here. Respondent’s argument that the ordinance is “aimed” at suppressing expression through a ban on nude dancing — an argument that respondent supports by pointing to statements by the city attorney that the public nudity ban was not intended to apply to “legitimate” theater productions— is really an argument that the city council also had an illicit motive in enacting the ordinance. As we have said before, however, this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit motive. O’Brien, supra, at 382-383; Renton v. Playtime Theatres, Inc., supra, at 47-48 (that the “predominate” purpose of the statute was to control secondary effects was “more than adequate to establish” that the city’s interest was unrelated to the suppression of expression). In light of the Pennsylvania court’s determination that one purpose of the ordinance is to combat harmful secondary effects, the ban on public nudity here is no different from the ban on burning draft registration cards in O’Brien, where the Government sought to prevent the means of the expression and not the expression of antiwar sentiment itself. Justice Stevens argues that the ordinance enacts a complete ban on expression. We respectfully disagree with that characterization. The public nudity ban certainly has the effect of limiting one particular means of expressing the kind of erotic message being disseminated at Kandyland. But simply to define what is being banned as the “message” is to assume the conclusion. We did not analyze the regulation in O’Brien as having enacted a total ban on expression. Instead, the Court recognized that the regulation against destroying one’s draft card was justified by the Government’s interest in preventing the harmful “secondary effects” of that conduct (disruption to the Selective Service System), even though that regulation may have some incidental effect on the expressive element of the conduct. Because this justification was unrelated to the suppression of O’Brien’s antiwar message, the regulation was content neutral. Although there may be cases in which banning the means of expression so interferes with the message that it essentially bans the message, that is not the case here. Even if we had not already rejected the view that a ban on public nudity is necessarily related to the suppression of the erotic message of nude dancing, we would do so now because the premise of such a view is flawed. The State’s interest in preventing harmful secondary effects is not related to the suppression of expression. In trying to control the secondary effects of nude dancing, the ordinance seeks to deter crime and the other deleterious effects caused by the presence of such an establishment in the neighborhood. See Renton, supra, at 50-51. In Clark v. Community for Creative Non-Violence, 468 U. S. 288 (1984), we held that a National Park Service regulation prohibiting camping in certain parks did not violate the First Amendment when applied to prohibit demonstrators from sleeping in Lafayette Park and the Mall in Washington, D. C., in connection with a demonstration intended to call attention to the plight of the homeless. Assuming, arguendo, that sleeping can be expressive conduct, the Court concluded that the Government interest in conserving park property was unrelated to the demonstrators’ message about homelessness. Id., at 299. So, while the demonstrators were allowed to erect “symbolic tent cities,” they were not allowed to sleep overnight in those tents. Even though the regulation may have directly limited the expressive element involved in actually sleeping in the park, the regulation was nonetheless content neutral. Similarly, even if Erie’s public nudity ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped, the dancers at Kandyland and other such establishments are free to perform wearing pasties and G-strings. Any effect on the overall expression is de minimis. And as Justice Stevens eloquently stated for the plurality in Young v. American Mini Theatres, Inc., 427 U. S. 50, 70 (1976), “even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate,” and “few of us would march our sons and daughters off to war to preserve the citizen’s right to see” specified anatomical areas exhibited at establishments like Kandyland. If States are to be able to regulate secondary effects, then de minimis intrusions on expression such as those at issue here cannot be sufficient to render the ordinance content based. See Clark v. Community for Creative Non-Violence, supra, at 299; Ward v. Rock Against Racism, 491 U. S. 781, 791 (1989) (even if regulation has an incidental effect on some speakers or messages but not others, the regulation is content neutral if it can be justified without reference to the content of the expression). This case is, in fact, similar to O’Brien, Community for Creative Non-Violence, and Ward. The justification for the government regulation in each case prevents harmful “secondary” effects that are unrelated to the suppression of expression. See, e. g., Ward v. Rock Against Racism, supra, at 791-792 (noting that “[t]he principal justification for the sound-amplification guideline is the city’s desire to control noise levels at bandshell events, in order to retain the character of the [adjacent] Sheep Meadow and its more sedate activities,” and citing Renton for the proposition that “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others”). While the doctrinal theories behind “incidental burdens” and “secondary effects” are, of course, not identical, there is nothing objectionable about a city passing a general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected speech) and at the same time recognizing that one specific occurrence of public nudity— nude erotic dancing — is particularly problematic because it produces harmful secondary effects. Justice Stevens claims that today we “[f]or the first time” extend Renton’s secondary effects doctrine to justify restrictions other than the location of a commercial enterprise. Post, at 817 (dissenting opinion). Our reliance on Renton to justify other restrictions is not new, however. In Ward, the Court relied on Renton to evaluate restrictions on sound amplification at an outdoor bandshell, rejecting the dissent’s contention that Renton was inapplicable. See Ward v. Rock Against Racism, supra, at 804, n. 1 (Marshall, J., dissenting) (“Today, for the first time, a majority of the Court applies Renton analysis to a category of speech far afield from that decision’s original limited focus”). Moreover, Erie’s ordinance does not effect a “total ban” on protected expression. Post, at 319. In Renton, the regulation explicitly treated “adult” movie theaters differently from other theaters, and defined “adult” theaters solely by reference to the content of their movies. 475 U. S., at 44. We nonetheless treated the zoning regulation as content neutral because the ordinance was aimed at the secondary effects of adult theaters, a justification unrelated to the content of the adult movies themselves. Id., at 48. Here, Erie’s ordinance is on its face a content-neutral restriction on conduct. Even if the city thought that nude dancing at clubs like Kandyland constituted a particularly problematic instance of public nudity, the regulation is still properly evaluated as a content-neutral restriction because the interest in combating the secondary effects associated with those clubs is unrelated to the suppression of the erotic message conveyed by nude dancing. We conclude that Erie’s asserted interest in combating the negative secondary effects associated with adult entertainment establishments like Kandyland is unrelated to the suppression of the erotic message conveyed by nude dancing. The ordinance prohibiting public nudity is therefore valid if it satisfies the four-factor test from O’Brien for evaluating restrictions on symbolic speech. > 1 — I Applying that standard here, we conclude that Erie s ordinance is justified under O’Brien. The first factor of the O’Brien test is whether the government regulation is within the constitutional power of the government to enact. Here, Erie’s efforts to protect public health and safety are clearly within the city’s police powers. The second factor is whether the regulation furthers an important or substantial government interest. The asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary effects associated with nude dancing are undeniably important. And in terms of demonstrating that such secondary effects pose a threat, the city need not “conduct new studies or produce evidence independent of that already generated by other cities” to demonstrate the problem of secondary effects, “so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses.” Renton v. Playtime Theatres, Inc., supra, at 51-52. Because the nude dancing at Kandyland is of the same character as the adult entertainment at issue in Renton, Young v. American Mini Theatres, Inc., 427 U. S. 50 (1976), and California v. LaRue, 409 U. S. 109 (1972), it was reasonable for Erie to conclude that such nude dancing was likely to produce the same secondary effects. And Erie could reasonably rely on the evidentiary foundation set forth in Renton and American Mini Theatres to the effect that secondary effects are caused by the presence of even one adult entertainment establishment in a given neighborhood. See Renton v. Playtime Theatres, Inc., supra, at 51-52 (indicating that reliance on a judicial opinion that describes the evidentiary basis is sufficient). In fact, Erie expressly relied on Barnes and its discussion of secondary effects, including its reference to Renton and American Mini Theatres. Even in cases addressing regulations that strike closer to the core of First Amendment values, we have accepted a state or local government’s reasonable belief that the experience of other jurisdictions is relevant to the problem it is addressing. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 393, n. 6 (2000). Regardless of whether Justice Soutee now wishes to disavow his opinion in Barnes on this point, see post, at 316-317 (opinion concurring in part and dissenting in part), the evidentiary standard described in Renton controls here, and Erie meets that standard. In any event, Erie also relied on its own findings. The preamble to the ordinance states that “the Council of the City of Erie has, at various times over more than a century, expressed its findings that certain lewd, immoral activities carried on in public places for profit are highly detrimental to the public health, safety and welfare, and lead to the debasement of both women and men, promote violence, public intoxication, prostitution and other serious criminal activity.” Pet. for Cert. 6a (emphasis added). The city council members, familiar with commercial downtown Erie, are the individuals who would likely have had firsthand knowledge of what took place at and around nude dancing establish-merits in Erie, and can make particularized, expert judgments about the resulting harmful secondary effects. Analogizing to the administrative agency context, it is well established that, as long as a party has an opportunity to respond, an administrative agency may take official notice of such “legislative facts” within its special knowledge, and is not confined to the evidence in the record in reaching its expert judgment. See FCC v. National Citizens Comm. for Broadcasting, 436 U. S. 775 (1978); Republic Aviation Corp. v. NLRB, 324 U. S. 793 (1945); 2 K. Davis & R. Pierce, Administrative Law Treatise §10.6 (3d ed. 1994). Here, Kandyland has had ample opportunity to contest the council's findings about secondary effects — before the council itself, throughout the state proceedings, and before this Court. Yet to this day, Kandyland has never challenged the city council’s findings or cast any specific doubt on the validity of those findings. Instead, it has simply asserted that the council’s evidentiary proof was lacking. In the absence of any reason to doubt it, the city’s expert judgment should be credited. And the study relied on by amicus curiae does not cast any legitimate doubt on the Erie city council’s judgment about Erie. See Brief for First Amendment Lawyers Association as Amicus Curiae 16-23. Finally, it is worth repeating that Erie’s ordinance is on its face a content-neutral restriction that regulates conduct, not First Amendment expression. And the government should have sufficient leeway to justify such a law based on secondary effects. On this point, O’Brien is especially instructive. The Court there did not require evidence that the integrity of the Selective Service System would be jeopardized by the knowing destruction or mutilation of draft cards. It simply reviewed the Government’s various administrative interests in issuing the cards, and then concluded that “Congress has a legitimate and substantial interest in preventing their wanton and unrestrained destruction and assuring their continuing availability by punishing people who knowingly and willfully destroy or mutilate them.” 391 U. S., at 378-380. There was no study documenting instances of draft card mutilation or the actual effect of such mutilation on the Government’s asserted efficiency interests. But the Court permitted Congress to take official notice, as it were, that draft card destruction would jeopardize the system. The fact that this sort of leeway is appropriate in a case involving conduct says nothing whatsoever about its appropriateness in a case involving actual regulation of First Amendment expression. As we have said, so long as the regulation is unrelated to the suppression of expression, “[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.” Texas v. Johnson, 491 U. S., at 406. See, e. g., United States v. O’Brien, supra, at 377; United States v. Albertini, 472 U. S. 675, 689 (1985) (finding sufficient' the Government’s assertion that those who had previously been barred from entering the military installation pose a threat to the security of that installation); Clark v. Community for Creative Non-Violence, 468 U. S., at 299 (finding sufficient the Government’s assertion that camping overnight in the park poses a threat to park property). Justice Souter, however, would require Erie to develop a specific evidentiary record supporting its ordinance. Post, at 317 (opinion concurring in part and dissenting in part). Justice Souter agrees that Erie’s interest in combating the negative secondary effects associated with nude dancing establishments is a legitimate government interest unrelated to the suppression of expression, and he agrees that the ordinance should therefore be evaluated under O’Brien. O’Brien, of course, required no evidentiary showing at all that the threatened harm was real. But that case is different, Justice Souter contends, because in O’Brien “there could be no doubt” that a regulation prohibiting the destruction of draft cards would alleviate the harmful secondary effects flowing from the destruction of those cards. Post, at 311, n. 1. But whether the harm is evident to our “intuition,” ibid., is not the proper inquiry. If it were, we would simply say there is no doubt that a regulation prohibiting public nudity would alleviate the harmful secondary effects associated with nude dancing. In any event, Justice Souter conflates two distinct concepts under O’Brien: whether there is a substantial government interest and whether the regulation furthers that interest. As to the government interest, i. e., whether the threatened harm is real, the city council relied on this Court’s opinions detailing the harmful secondary effects caused by establishments like Kandyland, as well as on its own experiences in Erie. Justice Souter attempts to denigrate the city council’s conclusion that the threatened harm was real, arguing that we cannot accept Erie’s findings because the subject of nude dancing is “fraught with some emotionalism,” post, at 314. Yet surely the subject of drafting our citizens into the military is “fraught” with more emotionalism than the subject of regulating nude dancing. Ibid. Justice Souter next hypothesizes that the reason we cannot accept Erie’s conclusion is that, since the question whether these secondary effects occur is “amenable to empirical treatment,” we should ignore Erie’s actual experience and instead require such an empirical analysis. Post, at 314-315, n. 3 (referring to a “scientifically sound” study offered by an amicus curiae to show that nude dancing establishments do not cause secondary effects). In Nixon, however, we flatly rejected that idea. 528 U. S., at 394 (noting that the “invocation of academic studies said to indicate” that the threatened harms are not real is insufficient to cast doubt on the experience of the local government). As to the second point — whether the regulation furthers the government interest — it is evident that, since crime and other public health and safety problems are caused by the presence of nude dancing establishments like Kandyland, a ban on such nude dancing would further Erie’s interest in preventing such secondary effects. To be sure, requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects, but O'Brien requires only that the regulation further the interest in combating such effects. Even though the dissent questions the wisdom of Erie’s chosen remedy, post, at 323 (opinion of Stevens, J.), the “ ‘city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems,’” Renton v. Playtime Theatres, Inc., 475 U. S., at 52 (quoting American Mini Theatres, 427 U. S., at 71 (plurality opinion)). It also may be true that a pasties and G-string requirement would not be as effective as, for example, a requirement that the dancers be fully clothed, but the city must balance its efforts to address the problem with the requirement that the restriction be no greater than necessary to further the city’s interest. The ordinance also satisfies O'Brien’s third factor, that the government interest is unrelated to the suppression of free expression, as discussed supra, at 289-296. The fourth and final O’Brien factor — that the restriction is no greater than is essential to the furtherance of the government interest— is satisfied as well. The ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer’s erotic message. See Barnes v. Glen Theatre, Inc., 501 U. S., at 572 (plurality opinion of Rehnquist, C. J., joined by O’Connor and Kennedy, JJ.); id., at 587 (Souter, J., concurring in judgment). Justice Souter points out that zoning is an alternative means of addressing this problem. It is far from clear, however, that zoning imposes less of a burden on expression than the minimal requirement implemented here. In any event, since this is a content-neutral restriction, least restrictive means analysis is not required. See Ward, 491 U. S., at 798-799, n. 6. We hold, therefore, that Erie’s ordinance is a content-neutral regulation that is valid under O’Brien. Accordingly, the judgment of the Pennsylvania Supreme Court is reversed, and the case is remanded for further proceedings. It is s.o ordered. Ordinance 75-1994, codified as Article 711 of the Codified Ordinances of the city of Erie, provides in relevant part: “1. A person who knowingly or intentionally, in a public place: “a. engages in sexual intercourse “b. engages in deviate sexual intercourse as defined by the Pennsylvania Crimes Code “c. appears in a state of nudity, or “d. fondles the genitals of himself, herself or another person commits Public Indecency, a Summary Offense. “2. “Nudity” means the showing of the human male or female genital lsic], pubic area or buttocks with less than a fully opaque covering; the showing of the female breast with less than a fully opaque covering of any part of the nipple; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of nipples and/or areola. “3. “Public Place” includes all outdoor places owned by or open to the general public, and all buildings and enclosed places owned by or open to the general public, including such places of entertainment, taverns, restaurants, clubs, theaters, dance halls, banquet halls, party rooms or halls limited to specific members, restricted to adults or to patrons invited to attend, whether or not an admission charge is levied. “4. The prohibition set forth in subsection 1(c) shall not apply to: “a. Any child under ten (10) years of age; or “b. Any individual exposing a breast in the process of breastfeeding an infant under two (2) years of age.”
Justice Scalia, with whom Justice Thomas joins, concurring in the judgment. I In my view, the case before us here is moot. The Court concludes that it is not because respondent could resume its nude daneing operations in the future, and because petitioners have suffered an ongoing, redressable harm consisting of the state court’s invalidation of their public nudity ordinance. As to the first point: Petitioners do not dispute that Kan-dyland no longer exists; the building in which it was located has been sold to a real estate developer, and the premises are currently being used as a comedy club. We have a sworn affidavit from respondent’s sole shareholder, Nick Panos, to the effect that Pap’s “operates no active business,” and is “a ‘shell’ corporation.” More to the point, Panos swears that neither Pap’s nor Panos “employ[s] any individuals involved in the nude daneing business,” “maintain[s] any contacts in the adult entertainment business,” “has any current interest in any establishment providing nude dancing,” or “has any intention to own or operate a nude dancing establishment in the future.” App. to Reply to Brief in Opposition to Motion to Dismiss 7-8. Petitioners do not contest these representations, but offer in response only that Pap’s could very easily get back into the nude dancing business. The Court adopts petitioners’ line, concluding that because respondent is still incorporated in Pennsylvania, it “could again decide to operate a nude dancing establishment in Erie.” Ante, at 287. That plainly does not suffice under our cases. The test for mootness we have applied in voluntary-termination cases is not whether the action originally giving rise to the controversy could not conceivably reoccur, but whether it is “absolutely clear that the ... behavior could not reasonably be expected to recur.” United States v. Concentrated Phosphate Export Assn., Inc., 393 U. S. 199, 203 (1968) (emphasis added). Here I think that test is met. According to Panos’ uncontested sworn affidavit, Pap’s ceased doing business at Kandyland, and the premises were sold to an independent developer, in 1998— the year before the petition for certiorari in this case was filed. It strains credulity to suppose that the 72-year-old Mr. Panos shut down his going business after securing his victory in the Pennsylvania Supreme Court, and before the city’s petition for certiorari was even filed, in order to increase his chances of preserving his judgment in the statistically unlikely event that a (not yet filed) petition might be granted. Given the timing of these events, given the fact that respondent has no existing interest in nude dancing (or in any other business), given Panos’ sworn representation that he does not intend to invest — through Pap’s or otherwise — in any nude dancing business, and given Panos’ ad-vaneed age, it seems to me that there is “no reasonable expectation,” even if there remains a theoretical possibility, that Pap’s will resume nude dancing operations in the future. The situation here is indistinguishable from that which obtained in Arizonans for Official English v. Arizona, 520 U. S. 43 (1997), where the plaintiff-respondent, a state employee who had sued to enjoin enforcement of an amendment to the Arizona Constitution making English that State’s official language, had resigned her public-sector employment. We held the case moot and, since the mootness was attributable to the “ ‘unilateral action of the party who prevailed in the lower court,’ ” we followed our usual practice of vacating the favorable judgment respondent had obtained in the Court of Appeals. Id., at 72 (quoting U. S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U. S. 18, 23 (1994)). The rub here is that this ease comes to us on writ of certio-rari to a state court, so that our lack of jurisdiction over the case also entails, according to our recent jurisprudence, a lack of jurisdiction to direct a vacatur. See ASARCO Inc. v. Kadish, 490 U. S. 605, 621, n. 1 (1989). The consequences of that limitation on our power are in this case significant: A dismissal for mootness caused by respondent’s unilateral action would leave petitioners subject to an ongoing legal disability, and a large one at that. Because the Pennsylvania Supreme Court severed the public nudity provision from the ordinance, thus rendering it inoperative, the city would be prevented from enforcing its public nudity prohibition not only against respondent, should it decide to resume operations in the future, and not only against other nude dancing establishments, but against anyone who appears nude in public, regardless of the "expressiveness” of his conduct or his purpose in engaging in it. That is an unfortunate consequence (which could be avoided, of course, if the Pennsylvania Supreme Court chose to vacate its judgments in cases that become moot during appeal). But it is not a consequence that authorizes us to entertain a suit the Constitution places beyond our power. And leaving in effect erroneous state determinations regarding the Federal Constitution is, after all, not unusual. It would have occurred here, even without the intervening mootness, if we had denied certiorari. And until the 1914 revision of the Judicial Code, it occurred whenever a state court erroneously sustained a federal constitutional challenge, since we did not even have statutory jurisdiction to entertain an appeal. Compare Judiciary Act of 1789, ch. 20, § 25, 1 Stat. 85-87, with Act of Dee. 23, 1914, ch. 2, 38 Stat. 790. In any event, the short of the matter is that we have no power to suspend the fundamental precepts that federal courts “are limited by the case-or-controversy requirement of Art. Ill to adjudication of actual disputes between adverse parties,” Richardson v. Ramirez, 418 U. S. 24, 36 (1974), and that this limitation applies “at all stages of review,” Preiser v. Newkirk, 422 U. S. 395, 401 (1975) (quoting Steffel v. Thompson, 415 U. S. 452, 459, n. 10 (1974)) (internal quotation marks omitted). Which brings me to the Court’s second reason for holding that this case is still alive: The Court concludes that because petitioners have an “ongoing injury” caused by the state court’s invalidation of its duly enacted public nudity provision, our ability to hear the case and reverse the judgment below is itself “sufficient to prevent the case from being moot.” Ante, at 288. Although the Court does not cite any authority for the proposition that the burden of an adverse decision below suffices to keep a case alive, it is evidently relying upon our decision in ASARCO, which held that Article Ill’s standing requirements were satisfied on writ of cer-tiorari to a state court even though there would have been no Article Ill standing for the action producing the state judgment on which certiorari was sought. We assumed jurisdiction in the ease because we concluded that the party seeking to invoke the federal judicial power had standing to challenge the adverse judgment entered against them by the state court. Because that judgment, if left undisturbed, would “eaus[e] direct, specific, and concrete injury to the parties who petition for our review,” ASARCO, 490 U. S., at 623-624, and because a decision by this Court to reverse the State Supreme Court would clearly redress that injury, we concluded that the original plaintiffs’ lack of standing was not fatal to our jurisdiction, id., at 624. I dissented on this point in ASARCO, see id., at 634 (Rehnquist, C. J., concurring in part and dissenting in part, joined by Scalia, J.), and remain of the view that it was incorrectly decided. But ASARCO at least did not purport to hold that the constitutional standing requirements of injury, causation, and redressability may be satisfied solely by reference to the lower court’s adverse judgment. It was careful to note — however illogical that might have been, see id., at 635 — that the parties “remained] adverse,” and that jurisdiction was proper only so long as the “requisites of a case or controversy are also met,” id., at 619, 624. Today the Court would appear to drop even this fig leaf. In concluding that the injury to Erie is “sufficient” to keep this case alive, the Court performs the neat trick of identifying a “case or controversy” that has only one interested party. II For the reasons set forth above, I would dismiss this case for want of jurisdiction. Because the Court resolves the threshold mootness question differently and proceeds to address the merits, I will do so briefly as well. I agree that the decision of the Pennsylvania Supreme Court must be reversed, but disagree with the mode of analysis the Court has applied. The city of Erie self-consciously modeled its ordinance on the public nudity statute we upheld against constitutional challenge in Barnes v. Glen Theatre, Inc., 501 U. S. 560 (1991), calculating (one would have supposed reasonably.) that the courts of Pennsylvania would consider themselves bound by our judgment on a question of federal constitutional law. In Barnes, I voted to uphold the challenged Indiana statute “not because it survives some lower level of First Amendment scrutiny, but because, as a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment scrutiny at all.” Id,, at 572 (opinion concurring in judgment). Erie’s ordinance, too, by its terms prohibits not merely nude dancing, but the act— irrespective of whether it is engaged in for expressive purposes — of going nude in public. The facts that a preamble to the ordinance explains that its purpose, in part, is to “limift] a recent increase in nude live entertainment,” App. to Pet. for Cert. 42a, that city couneilmembers in supporting the ordinance commented to that effect, see post, at 329-330, and n. 16 (Stevens, J., dissenting), and that the ordinance includes in the definition of nudity the exposure of devices simulating that condition, see post, at 331, neither make the law any less general in its reach nor demonstrate that what the municipal authorities really find objectionable is expression rather than public nakedness. As far as appears (and as seems overwhelmingly likely), the preamble, the council-members’ comments, and the chosen definition of the prohibited conduct simply reflect the fact that Erie had recently been having a public nudity problem not with streakers, sunbathers, or hot dog vendors, see Barnes, supra, at 574 (Scalia, J., concurring in judgment), but with lap dancers. There is no basis for the contention that the ordinance does not apply to nudity in theatrical productions such as Equus or Hair. Its text contains no such limitation. It was stipulated in the trial court that no effort was made to enforce the ordinance against a production of Equus involving nudity that was being staged in Erie at the time the ordinance became effective. App. 84. Notwithstanding Justice Stevens’ assertion to the contrary, however, see post, at 328, neither in the stipulation, nor elsewhere in the record, does it appear that the city was aware of the nudity — and before this Court counsel for the city attributed nonenforcement not to a general exception for theatrical productions, but to the fact that no one had complained. Tr. of Oral Arg. 16. One instance of nonenforcement — against a play already in production that prosecutorial discretion might reasonably have “grandfathered” — does not render this ordinance discriminatory on its face. To be sure, in the trial court counsel for the city said that “[t]o the extent that the expressive activity that is contained in [such] productions rises to a higher level of protected expression, they would not be [covered],” App. 53 — but he rested this assertion upon the provision in the preamble that expressed respect for “fundamental Constitutional guarantees of free speech and free expression,” and the provision of Paragraph 6 of the ordinance that provided for severability of unconstitutional provisions, id., at 53-54. What he was saying there (in order to fend off the over-breadth challenge of respondent, who was in no doubt that the ordinance did cover theatrical productions, see id., at 55) was essentially what he said at oral argument before this Court: that the ordinance would not be enforceable against theatrical productions if the Constitution forbade it. Tr. of Oral Arg. 13. Surely that limitation does not cause the ordinance to be not generally applicable, in the relevant sense of being targeted against expressive conduct. Moreover, even were I to conclude that the city of Erie had specifically singled out the activity of nude dancing, I still would not find that this regulation violated the First Amendment unless I could be persuaded (as on this record I cannot) that it was the communicative character of nude dancing that prompted the ban. When conduct other than speech itself is regulated, it is my view that the First Amendment is violated only “[w]here the government prohibits conduct precisely because of its communicative attributes.” Barnes, 501 U. S., at 577 (emphasis deleted). Here, even if one hypothesizes that the city’s object was to suppress only nude dancing, that would not establish an intent to suppress what (if anything) nude dancing communicates. I do not feel the need, as the Court does, to identify some “secondary effects” associated with nude dancing that the city could properly seek to eliminate. (I am highly skeptical, to tell the truth, that the addition of pasties and G-strings will at all reduce the tendency of establishments such as Kandyland to attract crime and prostitution, and hence to foster sexually transmitted disease.) The traditional power of government to foster good morals (bonos mores), and the acceptability of the traditional judgment (if Erie wishes to endorse it) that nude public dancing itself is immoral, have not been repealed by the First Amendment. Curiously, the Court makes no mention of Panos’ averment of no intention to operate a nude dancing establishment in the future, but discusses the issue as though the only factor suggesting mootness is the closing of Kandyland. Ante, at 287-288. I see no basis for ignoring this averment. The only fact mentioned by the Court to justify regarding it as perjurious is that respondent failed to raise mootness in its brief in opposition to the petition for certiorari. That may be good basis for censure, but it is scant basis for suspicion of perjury — particularly since respondent, far from seeking to “insulate a favorable decision from review,” ante, at 288, asks us in light of the mootness' to vacate the judgment below. Reply to Brief in Opposition to Motion to Dismiss 5. The Court asserts that “[s]everal Members of this Court can attest... that the ‘advanced age”' of 72 “does not make it ‘absolutely clear’ that a life of quiet retirement is [one’s] only reasonable expectation.” Ante, at 288. That is tres gallant, but it misses the point. Now as heretofore, Justices in their seventies continue to do their work competently — indeed, perhaps better than their youthful colleagues because of the wisdom that age imparts. But to respond to my point, what the Court requires is citation of an instance in which a Member of this Court (or of any other court, for that matter) resigned at the age of 72 to begin a new career— or more remarkable still (for this is what the Court suspects the young Mr. Panos is up to) resigned at the age of 72 to go judge on a different court, of no greater stature, and located in Erie, Pennsylvania, rather than Palm Springs. I base my assessment of reasonable expectations not upon Mr. Panos’ age alone, but upon that combined with his sale of the business and his assertion, under oath, that he does not intend to enter another. It is significant that none of the assertions of Panos’ affidavit is contested. Those pertaining to the sale of Kandyland and the current nonin-volvement of Pap’s in any other nude dancing establishment would seem readily verifiable by petitioners. The statements regarding Pap’s and Panos’ intentions for the future are by their nature not verifiable, and it would be reasonable not to credit them if either petitioners asserted some reason to believe they were not true or they were not rendered highly plausible by Panos’ age and his past actions. Neither condition exists here. I say “appear” because although the Court states categorically that “the availability of . . . relief [from the judgment below] is sufficient to prevent the case from being moot,” it follows this statement, in the next sentence, with the assertion that Pap’s, the state-court plaintiff, retains a “concrete stake in the outcome of this case.” Ante, at 288. Of course, if the latter were true a classic case or controversy existed, and resort to the exotic theory of “standing by virtue of adverse judgment below” was entirely unnecessary. This followup explanation rendered what Justice Stevens calls counsel’s “categorical” assertion that such productions would be exempt, see post, at 328, n. 12, notably ««.categorical. Rather than accept counsel’s explanation — in the trial eourt and here — that is compatible with the text of the ordinance, Justice Stevens rushes to assign the ordinance a meaning that its words cannot bear, on the basis of counsel’s initial footfault. That is not what constitutional adjudication ought to be. 6 To correct Justice Stevens’ characterization of my present point: I do not argue that Erie “carved out an exception” for Equus and Hair. Post, at 328, n. 14. Rather, it is my contention that the city attorney assured the trial court that the ordinance was susceptible of an interpretation that would carve out such exceptions to the extent the Constitution required them. Contrary to Justice Stevens’ view, ibid., I do not believe that a law directed against all public nudity ceases to be a “general law” (rather than one directed at expression) if it makes exceptions for nudity protected by decisions of this Court. To put it another way, I do not think a law contains the vice of being directed against expression if it bans all public nudity, except that public nudity which the Supreme Court has held cannot be banned because of its expressive content.
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-dent 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 eases do not identify with any specificity a particular quantum of evidence, nor do I seek to do so in this brief concurrence. 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. 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 b