United States v. O'Brien, 391 U.S. 367 (1968).

Renton v. Playtime Theaters, 475 U.S. 41 (1986).

Boos v. Barry, 485 U.S. 312 (1988).

Young v. American Mini Theaters, 427 U.S. 50 (1976).

'Secondary Effects' Fears Yield Total Ban...

Erie from page 1

As to the furtherance of Erie's purpose, the plurality stated that since crime and other negative effects are caused by the presence of nude dancing, a ban on such dancing furthers Erie's interests in preventing these secondary effects.

Having previously found that the ordinance satisfied the third O'Brien factor  that the government interest is unrelated to the suppression of free expression  the plurality found the fourth factor was also satisfied: that the restriction is no greater than is essential to the furtherance of the government's interest.

The ordinance's requirement that erotic dancers wear at least pasties and a G-string was found to be a minimal restriction, in furtherance of Erie's interest, leaving ample capacity to convey the dancers' erotic message.

Concurring in the judgment only, Justices Scalia and Thomas would uphold the ordinance on the basis that it is a general law regulating conduct only, not specifically directed at expression, and thus not subject to First Amendment scrutiny at all.

Writing for himself and Justice Ginsburg in dissent, Justice Stevens protested that the Court had embraced a fundamental doctrinal shift from cases like Renton and Barnes v. Glen Theater, in which the purpose of local restrictions to reduce secondary effects was limited to regulation of location. However, the plurality decision on Erie's ordinance holds that the presence of secondary effects justifies a total ban of a form of protected speech.

There is little doubt that the plurality's view in this "secondary effects" case continues the Court's pattern of deferential review of local judgment about local conditions, and of permitting a local legislature to rely on prior decisions by the Court about harmful secondary effects in other cities. Intermediate scrutiny under United States v. O'Brien has produced this kind of result in a number of cases.

Many of us who represent advertisers challenging local bans or restrictions on outdoor advertising have long held that this type of O'Brien intermediate scrutiny is not permissible when the ordinance under judicial review bans or restricts the advertising of products or services viewed by the government as harmful to some vulnerable group.

The difference between the Erie level of scrutiny and that compelled by decisions like Edenfield, Coors Brewing, and Greater New Orleans Broadcasting in the commercial speech area is important. One hopes that the justices and judges of the lower courts will keep these points in mind:

(1) Unlike O'Brien and Kandyland, local ordinances banning or restricting advertising for products such as alcohol beverages, tobacco, or gambling are enacted precisely because of their content. The applicability of