(dissenting) — The length of the majority opinion as well as my dissent demonstrates something is amiss.
Our constitution mandates, in unequivocal language, "[ejvery person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Wash. Const, art. I, § 5. Our canon for constitutional construction requires words be given their ordinary meaning. Westerman v. Cary, 125 Wn.2d 277, 288, 892 P.2d 1067 (1994). We had better follow our constitutional text than confuse it beyond recognition with additions, deletions, nuances, complexities and rules of wholly judicial invention. But such is the corner into which our prior decisions have painted us.
But no matter the length and complexity of our analysis here today, two simple questions must be answered: (1) is *150nude dancing "speech,” and, if so, (2) does the subject ordinance in any way limit its exercise. I answer: "Yes, yes.” A third question involving reasonable attorney fees, not so simple but very important, is answered later.
I.
Nude Dancing Is Speech
The majority concludes the form of expression at issue in this case (nude dancing) does not warrant the full protections of Washington Constitution article I, section 5, basing this assertion ostensibly on our decision in JJR Inc. v. City of Seattle, 126 Wn.2d 1, 8-9, 891 P.2d 720 (1995). But there we held "[n]ude dancing has expressive value requiring constitutional protection . . . .” Id. While we noted in that case that nude dancing performed at clubs "clings to the edge of protected expression,” we nevertheless concluded it clings to the protected side of the edge. Id. at 9. Under this constitutional clause, an inch is as good as a mile. Either the expression is protected speech or it is not. While there may have been a reasonable dispute as to whether nude dancing is the constitutional equivalent of the Gettysburg Address, prior decisions from this court essentially hold nude dancing speaks louder than words. See also O’Day v. King County, 109 Wn.2d 796, 803, 749 P.2d 142 (1988) ("[Ajrticle 1, section 5 . . . protects nude expression, but not nude conduct.”).
II.
Free Speech Is Impaired
Our constitution does not set gradations of protected speech nor should the court judicially amend it to do so, especially when all speech is protected on "all subjects.” Const, art. I, § 5. Gradations based on content reflect little more than individual preferences toward the types of speech the State seeks to regulate.20 If we do not want the constitution to mean what it says, we had better amend it than corrupt its text through strained interpretations.
*151Although our constitutional provision is broader than its federal counterpart, much written about the First Amendment addresses some of the principles common to both. I will therefore use some federal case law to put our state issue in context.
Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.
Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 513, 89 S. Ct. 733, 740, 21 L. Ed. 2d 731 (1969). The right of free expression "ranks among the most important of our constitutional rights [; thus] we must recognize that the precious right of free speech requires *152protection even when the speech is personally obnoxious.” Russo v. Central Sch. Dist. No. 1, 469 F.2d 623, 633-34 (2d Cir. 1972), cert. denied, 411 U.S. 932, 93 S. Ct. 1899, 36 L. Ed. 2d 391 (1973). In the federal context, with its less expansive guarantee of free speech, the Ninth Circuit has recognized that "the degree of protection the first amendment affords speech does not vary with the social value ascribed to that speech by the courts.” Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir. 1986).
Recognizing the dancing at issue here is protected expression, we must ask what, if any, restrictions the government may constitutionally impose. The constitutional text would permit none; however, case law, both state and federal, makes the text all but unrecognizable in practical application.
Under the federal standard, a time, place, and manner restriction may be imposed if it furthers only an important or substantial governmental interest unrelated to free expression, and the restriction goes no further than to promote that interest only. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991). Such is the test used here by the trial court (Deja VuBellevue Clerk’s Papers (CP) 186-87, conclusions of law 9 and 10) and adopted by the majority (Majority at 118). But all of the restrictive provisions at issue here are, at the least, regulations on the time, place, and manner of nude dancing (assuming they are not prior restraints as well).
The majority, having decided that nude or seminude erotic dancing is little more than a poor relative of other forms of expression, concludes that a more permissive (federal standard) analysis is all that our state law requires. But I see no basis for this approach under our state constitution or our case law because the state text is completely different from the federal. The federal cases cited by the majority were decided long after the state constitution was adopted and, therefore, obviously played no part whatsoever in the original understanding of what our state provision means. Moreover, prior cases decided *153by our court are on point and contrary to the federal standard.
Our court has held article I, section 5 of our state constitution permits the State to impose time, place, and manner restrictions "on protected expression . . . but only if [the restrictions] (1) are content neutral, (2) are narrowly tailored to serve a compelling state interest, and (3) leave open ample alternative channels of communication.” O’Day v. King County, 109 Wn.2d at 808-09 (emphasis added); Bering v. Share, 106 Wn.2d 212, 234, 721 P.2d 918 (1986) ("[RJestrictions on speech can be imposed consistent with Const, art. I, § 5 only upon showing a compelling State interest.”); Collier v. City of Tacoma, 121 Wn.2d 737, 753-54, 854 P.2d 1046 (1993) ("Tacoma must prove that its ordinances, taken together, are narrowly drawn to serve a compelling state interest.”).21
Bellevue’s ordinance fails not just one but all three elements required by O’Day, 109 Wn.2d at 808-09. Moreover its divergence from the constitutional standard stated in the original text is manifest.
A. Content Neutrality
Collier, 121 Wn.2d at 752, held time, place and manner restrictions that are viewpoint neutral, but subject matter based, are "particularly problematic.” We held that such restrictions are permissible only as long as "they are narrowly tailored to serve a compelling state interest and *154leave open ample alternative channels of communication.” Id. at 753. We recognized that a censorial justification, i.e., one adopted because of a disagreement with the message that a particular speech conveys, will often not be apparent from the face of the legislation and not be supported by a governmental justification unrelated to the suppression of speech or ideas. Id. (citing Burson v. Freeman, 504 U.S. 191, 212, 112 S. Ct. 1846, 119 L. Ed. 2d 5 (1992) (Kennedy, J., concurring)). A showing of improper legislative intent, therefore, is usually "practically impossible to make.” Collier, 121 Wn.2d at 751.
Here Bellevue claims the provisions at issue are designed to ostensibly curb public sexual contact and prostitution, remove the secondary effects of sexually oriented businesses, and facilitate law enforcement officers’ ability to detect touching between customers and performers. These claims are of the type we rejected in Collier as too subjective to be determinative. The provisions here facially regulate a specific subject matter— sexually oriented dance—but, to survive constitutional scrutiny, these subject matter restrictions must be narrowly tailored to serve a compelling state interest. Collier, 121 Wn.2d at 753. These restrictions are clearly not so tailored. Bellevue’s ordinance fails the content neutrality test.
B. Compelling State Interest
Our precedent holds time, place, and manner restrictions on expressive activity are unconstitutional unless the State can demonstrate such laws are necessary to promote a compelling governmental interest. O’Day, 109 Wn.2d at 808; Bering, 106 Wn.2d at 234; and Collier, 121 Wn.2d at 753.22 However, the trial court found only "substantial” or "important” interests, not "compelling” *155ones. (Deja Vu-Bellevue CP 180-81, 186-87, findings of fact 31-34, 36, conclusions of law 9 and 10) ("The City’s adult cabaret ordinances are designed to serve substantial governmental interests.”). Unfortunately the majority has only perpetuated the error. Since a compelling interest was neither found nor concluded by the trial court the regulations facially fail the compelling interest test.
C. Alternative Channels of Communication
The third and final element of our state constitutional test "requires that a time, place, and manner restriction leave open ample alternative channels for communication.” Collier, 121 Wn.2d at 759. The issue is not whether these dancers can find another job (Majority at 140), it is whether this form of communication will be "regulated” out of existence by Bellevue’s ordinance.
In Bellevue the subject ordinances have effectively shut down adult cabarets. The rigid proximity and lighting requirements take the fun out of this entertainment to the extent it is no longer commercially viable.23 The majority rejects the argument that the trial court *156erred when it excluded evidence of the ordinance’s adverse impact on the economy. But economic impact is the most direct measure of a value placed on an activity by the paying public. If this ordinance did not have an adverse economic impact I am sure the clubs and dancers would not be here. They are the best judges of what is good for their business—not the government or this court.
Destruction of economic viability is the consequence of governmental regulation which first destroys the value of the expression. Under our state constitutional analysis such evidence is extremely pertinent to the viability of a restriction on free speech in the sense of providing alternatives. Implicit in a determination as to whether ample alternative channels of communication exist is whether such alternatives are practically available. Collier, 121 Wn.2d at 760. "Alternatives are not 'alternatives’ if they are far from satisfactory.” Id. If the business venue which these performers use to provide entertainment goes out of business because of restrictive ordinances, such as those in question, and no satisfactory alternative method for this type of communication is available, this entertainment will simply not be available to the public. Driving this kind of entertainment to extinction seems to be the real goal of these ordinances, although they are dressed up to appear to only regulate.24
The United States Supreme Court has recognized the role financial incentives play in certain forms of speech when, absent these incentives, there would be no financial reason for the speaker to convey his or her message. In United States v. National Treasury Employees Union, 513 U.S. 454, 115 S. Ct. 1003, 1014, 130 L. Ed. 2d 964 (1995), the Court found a ban on honoraria received by federal employees imposed a significant burden on expressive *157activity because the lack of compensation forced the employees "to curtail their expression if they wish[ed] to continue working for the Government.” Id. at 1014. Likewise in Simon & Schuster, Inc. v. New York Crime Victims Bd., 502 U.S. 105, 115, 112 S. Ct. 501, 508, 116 L. Ed. 2d 476 (1991) the Court invalidated New York’s "Son of Sam” law, which confiscated the proceeds from the sale of a book by a felon as violative of the First Amendment. There the Court noted, "[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Id. at 115.
The ordinance at issue here was directed at only one type of speech, and it restricted the economic viability of adult cabarets so effectively that it drove all adult cabarets in Bellevue out of business and caused others not to open at all. The government’s ability to impose such financial burdens on speech "raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace.” Id 25 "It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge.” Murdock v. Commonwealth of Pa., 319 U.S. 105, 111, 63 S. Ct. 870, 874, 87 L. Ed. 1292, 146 A.L.R. 81 (1943). Nor could a free press survive if its publications could not be sold to the public. The ordinance therefore also fails the third and final test for constitutional validity enunciated in Collier.
III.
Attorney Fees
An appropriate award of reasonable attorney fees in a case such as this is critical. An award against private par*158ties can cripple those who would defend their liberties. An award for the private parties may encourage them to resist, and thus vindicate the most important public interest of all, protection of our constitutional rights.
The trial court awarded reasonable attorney fees to Bel-levue, but limited the fees to $5,000, the amount of the bond the court had required the dancers to post. The majority remands this issue to the trial court for a new award.
But the trial court should not have awarded any fees to Bellevue because this case was initiated by the dancers under 42 U.S.C. §§ 1983 and 1988, which preempts any state law permitting recovery of attorney fees by prevailing defendants.
State law is preempted by federal law when there is an actual conflict between the two so that compliance with both laws is physically impossible, or when a state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress. Inlandboatmen’s Union v. Department of Transp., 119 Wn.2d 697, 702, 836 P.2d 823 (1992). Under federal law, prevailing defendants in a civil rights action are not entitled to attorney fees unless the claim is frivolous, unreasonable, or without foundation. Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.), cert. denied, 513 U.S. 1000 (1994). The purpose of § 1988 is to ensure effective access to the judicial process for persons with civil rights grievances. Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S. Ct. 1933, 1937, 76 L. Ed. 2d 40 (1983).26
In Varney v. O’Brien, 147 Mich. App. 397, 383 N.W.2d *159213, 217 (1985), government defendants in a § 1983 suit claimed they were entitled to § 1988 attorney fees because the civil rights plaintiff had rejected a mediation award. Under Michigan law, the plaintiff was therefore required to pay the actual costs of litigation. That plaintiff succeeded on only one of four claims against defendants, and even then was awarded damages of only $1.00. 383 N.W.2d at 217. The court classified the issue as "the interplay between a federal statute which awards this plaintiff attorney fees and a local court rule which awards them to the defendants.” Id. It concluded
the effectiveness of 42 U.S.C. § 1988 would be undermined if the rejection of a mediation award that turned out to be more favorable than the judgment the plaintiff eventually received prevented the plaintiff from getting an award of attorney fees .... [Bjecause Congress through 42 U.S.C. § 1988 has expressed a desire to encourage private enforcement of civil rights, we conclude that the local court rule upon which defendants rely has been preempted and, therefore, defendants are not entitled to recover attorney fees.
Id. at 217-18.
Likewise, in East-Bibb Twiggs Neighborhood Ass’n v. MaconBibb Planning & Zoning Comm’n, 674 F. Supp. 1475, 1477 (M.D. Ga. 1987), aff’d, 888 F.2d 1576 (11th Cir. 1989), the federal district court dismissed a defendant’s counterclaim for abusive litigation based on state law in a federal civil rights action. The court noted that if state law counterclaims of abusive litigation were allowed to be asserted in federal causes of action, they would have a "tremendous 'chilling-effect’ on the assertion of these federally created rights.” 674 F. Supp. at 1477. The court concluded that the defendant’s state law counterclaim did not state a cause of action "because the underlying dispute arises *160out of 42 U.S.C. § 1983. 42 U.S.C. § 1988 and Rule 11 provide defendant . . . with the exclusive remedy for abusive litigation . . . .’’Id.
In Birenbaum v. Dawson, No. 95-CA-0424-MR, 1996 WL 531741 (Ky. Ct. App. Sept. 20, 1996), the plaintiff moved for attorney fees after successfully pursuing judgment under the federal civil rights laws against members of the state Board of Medical Licensure. The board contended that it had absolute immunity from any forms of monetary liability pursuant to Kentucky statutory law. The court stated "Notwithstanding the language of these statutes, it is clear that § 1988, as a federal enactment, preempts any inconsistent state statute, rule, or common law doctrine under the Supremacy Clause, Article VI, clause 2, of the United States Constitution, and therefore controls the disposition of the attorney fees question.” Id. at *4; see also Collins v. Thomas, 649 F.2d 1203, 1205-06 (5th Cir. 1981) (holding that § 1988 prevailed over a Texas statute forbidding enforcement of judgments against counties), cert. denied, 456 U.S. 936, 102 S. Ct. 1992, 72 L. Ed. 2d 455 (1982); Gates v. Collier, 616 F.2d 1268, 1270-71 (5th Cir. 1980) (holding that a Mississippi statute that prohibited satisfaction of judgments against the State in absence of legislative authorization was trumped by § 1988).
If we apply these considerations to the current case, Bellevue, even as a prevailing defendant, is entitled to no reasonable attorney fees under the state common-law rule upon which the majority relies because it is preempted by federal law. See Vernon, 27 F.3d at 1402. Nor can Bellevue recover under § 1988 because the dancers’ claims in this case were not frivolous, unreasonable, or without foundation. See id.
Because the dancers did not prevail on their federal claims on appeal, the majority also refuses to award attorney fees to the clubs under § 1988, even though the clubs have met "the low threshold for prevailing party status” by successfully appealing a related state law claim concerning the 14-day delay in issuing a manager’s license. *161The majority again runs afoul of the purpose of § 1988 as well as applicable United States Supreme Court precedent.
In Maher v. Gagne, 448 U.S. 122, 132 n.15, 100 S. Ct. 2570, 65 L. Ed. 2d 653 (1980), the Supreme Court held that a plaintiff who had prevailed on a claim not specifically covered by § 1988 may still be entitled to attorney fees under the act: "The legislative history makes it clear that Congress intended fees to be awarded where a pendent constitutional claim is involved, even if the . . . claim on which the plaintiff prevailed is one for which fees cannot be awarded under the Act.” 100 S. Ct. at 2576 n.15. Federal courts will consider a plaintiff to have prevailed on the merits for the purpose of the recovery of fees when the plaintiff prevails on a state law question if the plaintiffs civil rights claim was substantial, and the successful court claim arose from the same nucleus of facts. Id. (citing H. R. Rep. No. 94-1558, at 4 n.7 (1976)); see also Exeter-West Greenwich Reg’l Sch. Dist., 788 F.2d 47, 50-51 (1st Cir. 1986) (noting victory in a civil rights suit is typically a practical, rather than a strictly legal matter). Here, the clubs’ claims were undeniably substantial, and their state constitutional claim arose from the same facts upon which the federal claim was brought. The clubs, not Belle-vue, should therefore recover their reasonable attorney fees under § 1988 because they meet the "prevailing party” standard. See also Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (prevailing plaintiff is entitled to remand for determination of attorney fees under § 1988 even though damage award, while far lower than plaintiff sought, was not nominal and award achieved "significant nonmonetary result not only for [plaintiff] but for the community in general”).
IV.
Conclusion
The City of Bellevue has effectively regulated adult cabarets out of existence. It has done this through the use *162of ordinances that are not narrowly tailored and do not serve a compelling state interest. Our state constitution says no to this ordinance and so do I.
Johnson, J., concurs with Sanders, J.
After modification, further reconsideration denied August 21, 1997.
As Judge Posner said:
*151The true reason I think for wanting to exclude striptease dancing from the protection of the First Amendment is not any of the lawyers’ classification games . . . . It is a feeling that the proposition, "the First Amendment forbids the State of Indiana to require striptease dancers to cover their nipples,” is ridiculous. It strikes judges as ridiculous in part because most of us are either middle-aged or elderly men, in part because we tend to be snooty about popular culture, in part because as public officials we have a natural tendency to think political expression more important than artistic expression, in part because we are Americans—which means that we have been raised in a culture in which puritanism, philistinism, and promiscuity are complexly and often incongruously interwoven—and in part because like all lawyers we are formalists who believe deep down that the words in statutes and the Constitutions mean what they say, and a striptease is not a speech. But the element of the ridiculous is not all on one side. Censorship of erotica is pretty ridiculous too. What kind of people make a career of checking to see whether the covering of a woman’s nipples is fully opaque . . . ?
Miller v. Civil City of South Bend, 904 F.2d 1081, 1099 (7th Cir. 1990) (Posner, J., concurring), rev’d sub nom. by Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991).
Cases cited by tbe majority to the contrary are easily distinguished: City of Seattle v. Huff, 111 Wn.2d 923, 926, 767 P.2d 572 (1989) addressed harassing or threatening speech in a nonpublic forum, but did not concern time, place, and manner restrictions on protected means of expression. State v. Reece, 110 Wn.2d 766, 781, 757 P.2d 947 (1988), cert. denied, 493 U.S. 812,110 S. Ct. 59, 107 L. Ed. 2d 26 (1989) addressed obscenity, a nonprotected form of expression. National Fed’n of Retired Persons v. Insurance Comm’r, 120 Wn.2d 101, 119, 838 P.2d 680 (1992) addressed commercial speech, an area of free speech law the United States Supreme Court has arguably seen fit to segregate from all other forms of speech for special treatment. The reasoning in National Fed’n of Retired Persons applies solely to commercial speech. Richmond v. Thompson, 130 Wn.2d 368, 382, 922 P.2d 1343 (1996) concerned false and defamatory statements, a form of speech traditionally actionable at common law, and thus implicitly beyond the scope of constitutionally protected free speech.
By contrast, as noted above, the cases upon which the majority bases its decision are federal cases arising under the First Amendment, see Majority at 127 and 128 (citing United States v. O’Brien, 391 U.S. 367, 377, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (1968); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565, 111 S. Ct. *1552456, 115 L. Ed. 2d 504 (1991) (plurality opinion)), despite the fact that the majority is ostensibly analyzing this ordinance under our state constitution.
Perhaps . . . the striptease makes so little contribution to the marketplace of ideas that it can be suppressed even though it is an expressive activity formally akin to the highest forms of art. But here we risk being misled by metaphor. “Marketplace of ideas,” useful short-hand though it is for the domain of the First Amendment, leaves out not only nude dancing but also the greater part of art, as well as much of politics, of journalism, of education, of philosophy, of law, and in short of nonscientific discourse generally, for such discourse is heavily rhetorical, emotive. To observe that ordinances forbidding nude dancing in bars "do not prohibit an exchange of ideas which might tend to bring about political or social change,” Yauch v. State, 109 Ariz. 576, 579, 514 P.2d 709, 712 (1973), or that "it is difficult to conceive of ideas entitled to First Amendment protection which can be solely—or even best—expressed by baring the anus or genitals,” Kew v. Senter, 416 F. Supp. 1101, 1105 (N.D. Tex. 1976), is correct; it just misses the point. Art and popular entertainment are not awkward or failed attempts to communicate ideas, and the protection of the First Amendment is not limited to ideas.
Miller v. Civil City of South Bend, 904 F.2d 1081, 1097-98 (7th Cir. 1990) (Posner, J., concurring), rev’d sub nom. by Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991).
See testimony of Bob Wyrich, Representative of Washington Together Against Pornography ("Mr. Wyrich urged the [City] Council to retain the four-foot rule regarding table dancing and indicated that adult entertainment establishments will go out of business if the existing regulations are strictly enforced. ”) (emphasis added). Ex. 32 (City of Bellevue City Council, Summ. of Minutes of Regular Session (Sept. 6, 1994)).
The recent communist government in Nicaragua denied newsprint to newspapers which did not toe the communist line. John Spicer Nichols, The Media, in Nicaragua, The First Five Years 183, 186 (Thomas W. Walker ed., 1985) (commenting how, with the exception of "a brief thaw in late 1983,” La Presna, the key opposition newspaper, was continually denied access to newsprint during the first five years of Sandinista rule). Freedom of economic activity is often a predicate to the exercise of other liberties.
In enacting § 1988, Congress rejected the traditional assumption that private choices whether to litigate, compromise, or forgo a potential claim will yield a socially desirable level of enforcement as far as the enumerated civil rights statutes are concerned.
“All of these civil rights laws depend heavily upon private enforcement, and fee awards have proved an essential remedy if private citizens are to have a meaningful opportunity to vindicate the important Congressional policies which these laws contain.
"In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. *159If private citizens are to be able to assert their civil rights, and if those who violate the Nation’s fundamental laws are not to proceed with impunity, then citizens must recover what it costs them to vindicate these rights in court.”
Hensley, 461 U.S. at 444-45 (Brennan, J., concurring in part and dissenting in part) (footnote omitted) (quoting S. Rep. No. 94-1011, Report 2 (1976)).