dissenting.
Statutes prohibiting public nudity are of “ancient origin” and “reflect moral disapproval of people appearing in the nude among strangers in public places.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 568, 111 S.Ct. 2456, 2461, 115 L.Ed.2d 504 (1991). Because the law is “constantly based on notions of *19morality,” id. at 569, 111 S.Ct. at 2462 (quoting Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986)), courts should not invalidate a law “representing essentially moral choices,” id., unless it contravenes clearly defined constitutional boundaries. No such boundaries have been transgressed in this case.
It has been the traditional view that whatever natural law construct exists to support the “right to appear au naturel at home,” that right is “relinquished when one sets foot outside.” Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir.1970).10 Even so, in the “outer ambit” of constitutional theory, the erotic speech component of a particular form of public nakedness — nude dancing at strip clubs — receives “some measure” of First Amendment protection. Erie v. Pap’s AM., 529 U.S. 277, 285, 289, 120 S.Ct. 1382, 1385, 1391, 146 L.Ed.2d 265 (2000); see also Barnes, 501 U.S. at 566, 111 S.Ct. at 2460. The right, however, is hardly a robust one. At best, it receives a “diminished form of protection under the First Amendment,” Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 707 (7th Cir.2003), because it involves the “barest minimum of protected expression,” Barnes, 501 U.S. at 565, 111 S.Ct. at 2460. Put another way, the right is only “marginally” within the “outer perimeters” of the First Amendment. Barnes, 501 U.S. at 566, 111 S.Ct. at 2460.
In my opinion, none of the three constitutional attacks on Henrico’s public nudity ordinance (content-based regulation of speech, vagueness, or selective prosecution) accepted by the *20majority can survive scrutiny under existing precedent. As Erie and Barnes confirm, the content-based challenge fails because Henrico’s public nudity ordinance regulates conduct, not the content of anyone’s speech. Any incidental impact on the erotic speech component falls far short of rendering the ordinance unconstitutional. The vagueness claim cannot succeed because the Virginia Supreme Court rebuffed a similar challenge to a nearly identical public nudity ban in Wayside Rest., Inc. v. Virginia Beach, 215 Va. 231, 236, 208 S.E.2d 51, 55 (1974), and no intervening precedent between then and now has called that judgment into question. Finally, the selective prosecution assertion does not satisfy the threshold requirements for such a claim.
That all legislative acts are “presumed to be constitutional” is more than a mere judicial aphorism. Bosang v. Iron Belt Bldg. & Loan Ass’n, 96 Va. 119, 123, 30 S.E. 440, 441 (1898); see also In re Phillips, 265 Va. 81, 85, 574 S.E.2d 270, 272 (2003). This presumption is “one of the strongest known to the law.” Black v. Commonwealth, 262 Va. 764, 786, 553 S.E.2d 738, 751 (2001). Under it, courts must “resolve any reasonable doubt” regarding the constitutionality of a law in favor of its validity. In re Phillips, 265 Va. at 85, 574 S.E.2d at 272; see also Wayside Rest., Inc., 215 Va. at 236, 208 S.E.2d at 55 (holding public nudity ordinance constitutional).
I will address the appellants’ arguments in a different order than the majority because resolution of the first claim, which asserts the Henrico public nudity ordinance constitutes a content-based regulation of speech, directly impacts the remaining void-for-vagueness and selective prosecution claims.
I.
Content-Based Regulation
Laws that “by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content based.” Bartnicki v. Vopper, 532 U.S. 514, 526, 121 S.Ct. 1753, 1760, 149 L.Ed.2d 787 (2001) (quoting Turner Broad. System, Inc. v. FCC, 512 U.S. 622, 642-643, 114 S.Ct. *212445, 129 L.Ed.2d 497 (1994)). Content-based regulations on speech can withstand a constitutional challenge only by satisfying “the most exacting scrutiny.” Turner Broad. System, Inc., 512 U.S. at 641-42, 114 S.Ct. at 2459; see also Republican Party of Minnesota v. White, 536 U.S. 765, 774-75, 122 S.Ct. 2528, 2534-35, 153 L.Ed.2d 694 (2002); Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434, 122 S.Ct. 1728, 1733, 152 L.Ed.2d 670 (2002) (plurality).
A law regulating expressive activity should be deemed content neutral “so long as it is ‘justified without reference to the content of the regulated speech.’ ” Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) (emphasis in original and citation omitted). Because such regulations are “unrelated to the suppression of expression,” Lorillard Tobacco Co. v. Reilly, 533 U.S. 525, 567, 121 S.Ct. 2404, 2428, 150 L.Ed.2d 532 (2001), they are subjected to a “less-rigorous analysis,” Turner Broad. Sys. v. FCC, 520 U.S. 180, 213, 117 S.Ct. 1174, 1198, 137 L.Ed.2d 369 (1997). Sufficient government interests justifying content neutral regulations include “preventing harmful secondary effects,” Erie, 529 U.S. at 293, 120 S.Ct. at 1393, and “protecting order and morality,” Barnes, 501 U.S. at 569, 111 S.Ct. at 2462, both classic expressions of state police powers.
The Henrico public nudity ban regulates conduct — not the content of anyone’s speech. In this respect, the ordinance is no different from either of the two laws deemed content-neutral in Barnes and Erie. As the Supreme Court said in Erie:
The ordinance here, like the statute in Barnes, is on its face a general prohibition on public nudity. 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.
Erie, 529 U.S. at 290, 120 S.Ct. at 1391. The same can be said of the Henrico ordinance.
*22True, some may “view restricting nudity on moral grounds as necessarily related to expression.” Barnes, 501 U.S. at 570, 111 S.Ct. at 2462. And, in an abstract sense, it is entirely fair to say that people “who go about in the nude in public may be expressing something about themselves by so doing.” Id. This point, however, proves too much. Taken to its logical limits, it obliterates any First Amendment distinctions between speech and conduct. A flasher in a public mall may genuinely intend to communicate a message — whether erotic, neurotic, or both. But the communicative element in his conduct should receive no constitutional protection. Despite the libertarian traditions animating the First Amendment, we are not dealing here with protecting the societal value of “untrammeled political debate” and “few of us would march our sons and daughters off to war to preserve a citizen’s right” to unlimited expression of public sexuality. Erie, 529 U.S. at 294, 120 S.Ct. at 1394 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976)).
The majority takes no issue with Erie or Barnes, but instead seeks to distinguish them on the ground that the Henrico ordinance contains an exemption for artistic and theatric performances. The public nudity ban in Erie, the majority states, “specifically included theaters and dance halls.” Ante, at 15, 581 S.E.2d at 869. From there, the majority reasons that the artistic and theatrical nudity exemption in the Henrico ordinance transforms an otherwise permissible, content-neutral public nudity ban into a thinly disguised content-based restriction. I disagree.
Despite the fact that the public nudity ban in Erie did not include an express exemption, the prosecutor in Erie stipulated that the ban did not apply to theatrical and artistic nudity. Making the same argument as the majority here, the dissent in Erie seized upon this stipulation:
In an earlier proceeding in this case, the Court of Common Pleas asked Erie’s counsel “what effect would this ordinance have on theater ... productions such as Equus, Hair, 0[h!] Calcutta[!]? Under your ordinance would these things be *23prevented ... ?” Counsel responded: “No, they wouldn’t, Your Honor.” App. 53. Indeed, as stipulated in the record, the city permitted a production of Equus to proceed without prosecution, even after the ordinance was in effect, and despite its awareness of the nudity involved in the production----As presented to us, the ordinance is deliberately targeted at Kandyland’s type of nude dancing (to the exclusion of plays like Equus), in terms of both its applicable scope and the city’s enforcement.
Hi ❖ H* H* H« H«
Nor could it be contended that selective applicability by stipulated enforcement should be treated differently from selective applicability by statutory text. See Barnes, 501 U.S. at 574[, 111 S.Ct. at 2464] (Scalia, J., concurring in judgment) (selective enforcement may affect a law’s generality). Were it otherwise, constitutional prohibitions could be circumvented with impunity.
Id. at 328 n. 12, 120 S.Ct. at 1412 n. 12 (Stevens, J., dissenting). The plurality in Erie rejected this argument and acknowledged that its own analysis presupposed that the public nudity ban had “the effect of limiting one particular means of expressing the kind of erotic message being disseminated at Kandyland.” Id. at 293, 120 S.Ct. at 1393.
The same is true of the public nudity ban in Barnes. Notwithstanding the absence of any express exemption, the public nudity ban there had been construed by the state courts to exclude theatrical and artistic nudity.11 The Supreme Court acknowledged this limiting construction on the ordinance as a legitimate effort by the state courts to “save it from a facial overbreadth attack.” Barnes, 501 U.S. at 564 n. 1, 111 *24S.Ct. at 2464 n. 1. In his concurring opinion, Justice Scalia agreed:
Respondents also contend that the statute, as interpreted, is not content-neutral in the expressive conduct to which it applies, since it allegedly does not apply to nudity in theatrical productions. See State v. Baysinger, 272 Ind. 236, 247, 397 N.E.2d 580, 587 (1979). I am not sure that theater versus non-theater represents a distinction based on content, rather than format, but assuming that it does, the argument nonetheless fails for the reason the plurality describes, ante, at 564, n. 1, 111 S.Ct. at 2459 n. 1.
Id. at 574 n. 2, 111 S.Ct. at 2464 n. 2.
By including an express exemption for theatrical and artistic nudity, Henrico merely put in writing what was implicit in both the Erie and Barnes public nudity bans. The exemption in the Henrico ordinance does nothing more than ensure that the ordinance incidentally restricts the least amount of expressive conduct, and thus, protects the ordinance against an overbreadth challenge. See, e.g., Giovani Carandolo, Ltd. v. Bason, 303 F.3d 507, 517-19 (4th Cir.2002) (holding lack of any artistic and theater exemption raised overbreadth problems sufficient to warrant a preliminary injunction).
In addition, the artistic and theatrical exemption reflects a legitimate recognition of the unique secondary effects associated with erotic clubs. “Establishments that purvey erotica, live or pictorial, tend to be tawdry, to be offensive to many people, and to attract a dubious, sometimes a disorderly, clientele.” Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1124 (7th Cir.2001). The impact of erotic dancing and other sexually oriented businesses on the surrounding community is “all too real.” Alameda Books, Inc., 535 U.S. at 444, 122 S.Ct. at 1739 (Kennedy, J., concurring).12
*25A public nudity ban should be “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.” Erie, 529 U.S. at 296, 120 S.Ct. at 1394; see also Clark v. City of Lakewood, 259 F.3d 996, 1004 (9th Cir.2001). So, while the messages conveyed by erotic dancing and theatrical nudity may be similar, the social by-products of each medium may be considerably different. See DLS, Inc. v. Chattanooga, 107 F.3d 403, 412 n. 9 (6th Cir.1997).13 Within the “limited field of regulations on public exhibitions of adult entertainment,” therefore, the presence of negative secondary effects permits public nudity regulations to be treated “as content-neutral and so subject only to intermediate scrutiny.” Giovani Carandola, Ltd., 303 F.3d at 515.
All of this leads us to the application of the four-part test governing content-neutral restrictions on speech. Under that test, the Henrico ordinance survives scrutiny if it (i) falls within “the constitutional power” of the county, (ii) furthers an “important or substantial government interest,” (iii) furthers that interest in a manner “unrelated to the suppression of free expression,” and (iv) imposes no greater incidental restriction on protected speech “than is essential to the furtherance of that interest.” Erie, 529 U.S. at 296-301, 120 S.Ct. at 1394-97; see also Barnes, 501 U.S. at 567, 111 S.Ct. at 2461; United States v. O’Brien, 391 U.S. 367, 376-77, 88 S.Ct. 1673, 1678-79, 20 L.Ed.2d 672 (1968). I agree with the majority’s conclusion that the Henrico public nudity ban satisfies prongs *26one and two, but disagree with its finding that it violates prongs three and four.
On the third prong, the majority finds that the “purpose” of the ordinance is unrelated to the suppression of free expression, ante, at 14, 581 S.E.2d at 869, but its “application” is not. In support, the majority again asserts that the artistic and theatrical exemption (written into the text of the ordinance) requires law enforcement officials to “make content-based distinctions.” Ante, at 15, 581 S.E.2d at 869. As noted earlier, however, the same exemption was present in Barnes and Ene. It serves an important limiting function by avoiding potential overbreadth problems. See Barnes, 501 U.S. at 564 n. 1, 111 S.Ct. at 2460 n. 1. The exemption also rests on a valid assessment of the differing secondary effects between the two venues. The focus on secondary effects was at the heart of the Erie holding:
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.
Erie, 529 U.S. at 292, 120 S.Ct. at 1392. The artistic and theatrical exemption, therefore, does not violate the third prong of the content-neutral test any more than it did in Barnes or Erie.
The majority also holds that the Henrico ordinance violates the fourth prong. On this issue, the majority states that the “legislative intent” of the ordinance was “to prevent urinating in public and similar problems.” Ante, at 17, 581 S.E.2d at 870. But, because the literal text of the ordinance also applies to erotic dancing, the majority reasons, the ordinance goes further than necessary “to prevent or deter public urination, ‘mooning’ or skinny dipping.” Ante, at 17, 581 S.E.2d at 870.
I cannot accept this analysis for several reasons. To begin with, the trial court made no factual finding that the purpose of the ordinance was limited to public urination, mooning, and skinny dipping. The majority’s assertion appears to be taken *27from a memo from a lieutenant in the county police department to the police chief. The memo mentions the need of an ordinance to outlaw public urination, mooning, and skinny dipping. The same memo, however, also adds that the ordinance should prohibit “generally being nude in public.” The majority’s assertion, therefore, relies on a non-legislative source that, in any event, contemplates a greater scope than merely proscribing mooning, public urination, and skinny dipping.
The only reliable source for legislative intent can be found in a memo of the Henrico County Board of Supervisors accompanying the proposed ordinance at the time of its enactment. It reads:
The purpose of this ordinance is to make unlawful displays of public nudity in the County, which are deemed offensive to public morality and injurious to the health, safety and general welfare of County citizens, regardless of whether such nudity would or would not in any specific instance be deemed obscene. The ordinance contains exception for exhibitions and other performances in institutions or establishments, such as theaters and concert halls, primarily devoted to expressions of opinion, communication, speech, ideas, information, art or drama.
(Emphasis added.)
The stated purpose of the public nudity ban, therefore, involves broad concerns over “public morality” and the need to regulate conduct that the legislative body deemed “injurious to the health, safety and general welfare” of the community. Id. It was exactly these concerns over “secondary effects, such as the impacts on public health, safety, and welfare,” Erie explained, “which we have previously recognized are ‘caused by the presence of even one such’ establishment.” Erie, 529 U.S. at 291, 120 S.Ct. at 1392 (citation omitted). Barnes likewise found that an identical expression of the “traditional police power” of a state to “provide for the public health, safety, and morals” may serve as a permissible legislative goal for the *28enactment of a public nudity ordinance applicable to erotic dancing. Barnes, 501 U.S. at 569, 111 S.Ct. at 2462.14
Properly applied, the fourth prong of the Erie content-neutral test requires us to consider whether the ordinance imposes too great an incidental burden on speech. Before engaging in this analysis, we must first frame the issue precisely. The only constitutional right here (albeit one “marginally” within the “outer perimeters” of the -First Amendment, Barnes, 501 U.S. at 566, 111 S.Ct. at 2460) is the erotic message implicit in nude or semi-nude dancing. There is no general right to take one’s clothes off in public. Nor is there a constitutional right to wear pasties and G-strings rather than the lingerie-like tops and bottoms required by the Henrico ordinance. Thus, we cannot ask whether requiring slightly more clothes restricts the erotic dancer’s right to be less clothed. “Being ‘in a state of nudity,’ ” after all, “is not an inherently expressive condition.” Erie, 529 U.S. at 289, 120 S.Ct. at 1391. Instead, we must ask whether the ordinance unduly burdens the dancer’s ability to express her erotic message by requiring her to cover up slightly more of her body with slightly more fabric.
Erie held that going from complete nudity to being partly clothed (with pasties and a G-string) involved a de minimis impact on the ability of a dancer to express eroticism. Erie, *29529 U.S. at 294, 120 S.Ct. at 1394. The Henrico ordinance, in contrast, does not involve a transition from totally nude to partly clothed, but rather one from partly clothed to slightly more partly clothed. If going from naked to non-naked involves a constitutionally insignificant difference in degree, then the incrementally more fabric required by the Henrico ordinance can hardly constitute a constitutionally fatal difference. In this respect, the Henrico ordinance involves no more of a burden on the dancer’s free speech than the Eñe requirement to wear some form of clothing in the first place. The dancer’s erotic message still reaches its intended audience. The additional clothing just “makes the message slightly less graphic.” Barnes, 501 U.S. at 571, 111 S.Ct. at 2463.
In determining whether “particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” we should consider not only the messenger’s intent but also whether “the likelihood was great that the message would be understood by those who viewed it.” Texas v. Johnson, 491 U.S. 397, 404, 109 S.Ct. 2533, 2539, 105 L.Ed.2d 342 (1989) (quoting Spence v. Washington, 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842 (1974)). Along these same lines, I do not accept the majority’s unstated assumption that the more graphic the dancer’s display of nudity the more erotic her message becomes. While that may be true at the extremes (like the contrast between a dancer in a snow skiing suit and one completely naked), it is not true at the margins (like the contrast between a dancer wearing almost nothing and one wearing slightly more than almost nothing). Sharon Boyd, the erotic dancer in this case, made this point as well as anyone could:
Q: Is it, you get, you work by way of tips only at Gold City, is that correct?
A: Correct.
Q: And that the more, is it fair to say in your experience, the more skin you show, the more tips you get?
A: Not, not at all. Not at all. I’m—
Q: — So you’re—
*30A: — covered up. I work there, to this day, I work covered up every day and I make probably more money than I did before.
If we gauge the effectiveness of Boyd’s erotic message by the measurable reaction of the recipients of that message — a task the First Amendment requires, Texas, 491 U.S. at 404, 109 S.Ct. at 2539 — we must conclude that the Henrico ordinance has had little, if any, negative impact on the erotic speech component of her dancing.
For these reasons, I agree with the conclusion reached by the federal courts that have held that pasties and G-strings do not represent “the maximum requirements of dress that an anti-nudity ordinance may impose.” Café 207 v. St. Johns County, 856 F.Supp. 641, 645-46 (M.D.Fla.1994), aff'd, 66 F.3d 272 (11th Cir.1995); see also Bright Lights v. City of Newport, 830 F.Supp. 378, 383-84 (E.D.Ky.1993). I also agree with the trial court in our case that the Henrico ordinance satisfies all four prongs of the Erie content-neutral test.
II.
Void For Vagueness
An enactment may be found void for vagueness under either of two related theories. See Hill v. Colorado, 530 U.S. 703, 733, 120 S.Ct. 2480, 2498, 147 L.Ed.2d 597 (2000). First, if a statute “fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” it may be found vague. Id. Second, an enactment may be found vague if “it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732, 120 S.Ct. at 2498.
The majority finds both vagueness infirmities with Henri-co’s public nudity ordinance. On the first point, the majority says that Henrico officials “never gave appellants any advance warning” that their conduct violated the public nudity ordinance. Ante, at 10, 581 S.E.2d at 867. County officials, however, did not have to give the erotic club or any of its dancers specific notice of the ordinance. The mere promul*31gation of the ordinance was notice to all. See generally Bryan v. United States, 524 U.S. 184, 196, 118 S.Ct. 1989, 1947, 141 L.Ed.2d 197 (1998) (recognizing the “traditional rule that ignorance of the law is no excuse”). “The determination whether a criminal statute provides fair warning of its prohibitions must be made on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants.” Bouie v. Columbia, 378 U.S. 347, 355 n. 5, 84 S.Ct. 1697, 1703 n. 5, 12 L.Ed.2d 894 (1964). Under settled law, therefore, we must apply “an objective test for determining whether a statute is vague.” Laurence H. Tribe, Constitutional Law § 12-31, at 1033 n. 3 (2d ed.1988).
The proper test requires focus on whether a reasonable person could have understood what the Henrico public nudity ordinance literally proscribed. See Hill, 530 U.S. at 733, 120 S.Ct. at 2498. The Virginia Supreme Court resolved that issue in Wayside Rest., Inc., 215 Va. at 236, 208 S.E.2d at 55. There, an erotic club challenged a similar public nudity ordinance on vagueness grounds. The Virginia Supreme Court held that the challenged terms in the ordinance were “in common use” and “readily understood by the average person.” Id. The wording of the Henrico ordinance uses nearly identical language, having been patterned (the evidence at trial proved) expressly after the Virginia Beach ordinance approved by Wayside Rest., Inc.
For example, the Henrico ordinance defines a “state of nudity” in a manner similar to the public nudity ordinance in Wayside Rest., Inc., 215 Va. at 232 n. 1, 208 S.E.2d at 52 n. 1. The words used in the definition section of the public nudity ordinance — “buttocks,” “female breast,” “top of the nipple” and the like — are commonly understood terms. Cf. Code § 18.2-390(2) (using identical language to define nudity). Similarly, the artistic and theater exemption in the Henrico ordinance tracks verbatim the exemption in Wayside Rest., Inc., 215 Va. at 232 n. 1, 208 S.E.2d at 52 n. 1. Indeed, the Virginia Supreme Court found that the most arguably ambiguous language in the exemption — the catch-all phrase “other *32similar establishment” following the list of artistic venues like plays, dramas, and theaters — was not unconstitutionally vague. Id. at 236, 208 S.E.2d at 55; see also Bomhower v. Virginia Beach, 76 F.Supp.2d 681, 686 (E.D.Va.1999) (rejecting similar vagueness challenge to a public nudity ordinance).
In addition, a specific “scienter requirement” in an ordinance (requiring that criminal culpability be grounded on knowing violations of law) further protects a law from a vagueness challenge. Hill, 530 U.S. at 732, 120 S.Ct. at 2498. A scienter requirement “may mitigate a law’s vagueness, especially with respect to the adequacy of notice to the complainant that his conduct is proscribed.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 499, 102 S.Ct. 1186, 1193, 71 L.Ed.2d 362 (1982). The Henrico ordinance contains a specific scienter requirement that the accused must “knowingly, voluntarily and intentionally” be in public in a “state of nudity.” Henrico County Code § 13-107(b). This scienter requirement, built into the text of the ordinance, undermines the appellants’ claim of inadequate notice.
I also disagree with the majority’s assertion that the vagueness test should turn on whether the Henrico ordinance applies to “technical” violators like women wearing “contemporary swimwear,” “short-shorts,” or mothers engaged in breast feeding. Ante, at 9, 581 S.E.2d at 867. As the United States Supreme Court recently emphasized, “speculation about possible vagueness in hypothetical situations not before the Court” should be given no weight in the analysis. Hill, 530 U.S. at 733, 120 S.Ct. at 2498 (quoting United States v. Raines, 362 U.S. 17, 23, 80 S.Ct. 519, 524, 4 L.Ed.2d 524 (1960)). “There is little doubt that imagination can conjure up hypothetical cases in which the meaning of these terms will be in nice question,” id. (quoting American Communications Assn. v. Douds, 339 U.S. 382, 412, 70 S.Ct. 674, 691, 94 L.Ed. 925 (1950)), but the focus must remain on the facts before the court.
As a result, one “who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates, 455 *33U.S. at 495, 102 S.Ct. at 1191; see also Parker v. Levy, 417 U.S. 738, 756, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (“One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.”); Bomhower, 76 F.Supp.2d at 686 (holding that an erotic club, against which the public nudity ordinance clearly applied, could not assert vagueness claim on behalf of others). The erotic dancers in this case stripped down to pasties and G-strings. They were not wearing “contemporary swimwear” or “short-shorts.” Ante, at 9, 581 S.E.2d at 867. Nor were they breast-feeding on stage. The majority’s reliance on such “hypothetical situations not before the Court,” Hill, 530 U.S. at 733, 120 S.Ct. 2480 (citation omitted), pushes vagueness law considerably beyond existing precedent.
Finally, I disagree that the ordinance violated the vagueness test on the ground that “it authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 530 U.S. at 732, 120 S.Ct. at 2498. Because law enforcement always “requires the exercise of some decree of police judgment,” Grayned v. City of Rockford, 408 U.S. 104, 114, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222 (1972), a law should not be invalidated unless its clarity has been “designedly avoided so as to allow the net to be cast at large,” Papachristou v. City of Jacksonville, 405 U.S. 156, 166, 92 S.Ct. 839, 845, 31 L.Ed.2d 110 (1972) (citation omitted).
On this issue, I see no persuasive point to be made over the police officer’s comment that he would have to “see a particular item of clothing” before determining whether to issue a summons. Ante, at 11, 581 S.E.2d 867. It is entirely appropriate for a police officer to examine the conduct in question and make a judgment as to whether, under the probable cause standard, the conduct is illegal. The vagueness test does not forbid individualized assessments by law enforcement officers. What it forbids is a law that, by its expansive sweep of language, enacts an elastic definition of illegality — one that authorizes an officer to define for himself what is and is not legal. Nothing in the Henrico ordinance goes that far.
*34III.
Selective Prosecution
The structure of tripartite government creates a judicial presumption in favor of “broad” prosecutorial discretion. See United States v. Armstrong, 517 U.S. 456, 464-65, 116 S.Ct. 1480, 1486, 134 L.Ed.2d 687 (1996). “This broad discretion rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review.” Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 1530, 84 L.Ed.2d 547 (1985). “Even in the criminal-law field, a selective prosecution claim is a rara avis.” Reno v. Americam-Arab Anti-Discrimination Comm., 525 U.S. 471, 489, 119 S.Ct. 936, 946, 142 L.Ed.2d 940 (1999). Thus, “in the ordinary case, ‘so long as the prosecutor has probable cause to believe that the accused committed an offense defined by statute, the decision whether or not to prosecute ... generally rests entirely in his discretion.’ ” Armstrong, 517 U.S. at 464, 116 S.Ct. at 1486 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364, 98 S.Ct. 663, 668, 54 L.Ed.2d 604 (1978)). “To succeed on a selective-prosecution claim, a defendant must demonstrate that the prosecutor’s decision Vas based on an unconstitutional motive.’ ” Rowsey v. Lee, 327 F.3d 335, 343, 2003 U.S.App. Lexis 7735, at *16 (4th Cir.2003) (Wilkinson, J.) (citation omitted).
In this case, the majority holds the Henrico ordinance unconstitutional as applied to these appellants on “selective enforcement” grounds. Ante, at 12, 581 S.E.2d at 868. This holding rests primarily on the prosecutor’s concession that he would not prosecute “technical” violations of the ordinance, ante, at 11, 581 S.E.2d at 868, which would include some forms of skimpy swimwear at public pools, nursing mothers in public, and the like. For several reasons, I believe this holding fails to satisfy the “demanding” standard, Armstrong, 517 U.S. at 463, 116 S.Ct. at 1485, required of selective prosecution claims.
First, a selective prosecution claim requires a showing that “the prosecutor has brought the charge for reasons forbidden by the Constitution.” Armstrong, 517 U.S. at 463, 116 S.Ct. at 1486. The claim cannot succeed without proof that the prose*35cution was “ ‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary classification,’ including the exercise of protected statutory and constitutional rights.” Wayte, 470 U.S. at 608, 105 S.Ct. at 1531 (quoting Bordenkircher, 484 U.S. at 364, 98 S.Ct. at 668; Oyler v. Boles, 368 U.S. 448, 456, 82 S.Ct. 501, 506, 7 L.Ed.2d 446 (1962), and citing United States v. Goodwin, 457 U.S. 368, 372, 102 S.Ct. 2485, 2488, 73 L.Ed.2d 74 (1982)).
The appellants’ as-applied selective enforcement claim fails for the same reason their content-based attack fails: The dancers have no First Amendment right to wear pasties and G-strings rather than the lingerie-like tops and bottoms required by the Henrico ordinance. Because the ordinance involves a content-neutral regulation of conduct that does not unduly burden any protected erotic speech, the appellants cannot claim they were being targeted for constitutionally suspect reasons. In other words, the appellants cannot show that Henrico prosecuted them “because of’ their expression of constitutionally protected speech. Wayte, 470 U.S. at 610, 105 S.Ct. at 1532 (emphasis in original).
Second, the selective prosecution claim, having been rejected by the fact finder at trial, can only succeed on appeal if the facts demonstrate it as a matter of law. The factual record cannot support this showing. No evidence proved any “technical violations” had in fact occurred in Henrico County. The majority’s holding on this point, as well as the prosecutor’s remarks about it, involve purely hypothetical situations — the most fanciful of which being the observation that the enforcement of the public nudity ban would “permit Jennifer Lopez to wear one famously revealing dress,” but might prohibit her from wearing others. See ante, at 18, 581 S.E.2d at 871 (adopting for its holding the federal court’s order which abstained from deciding the issue). Once one gets beyond the hypotheticals, no evidence in this case demonstrated that the prosecutors had used the ordinance to target erotic dancing. Just the opposite was shown: Thirty-eight individuals had been prosecuted under the public nudity ban, and this one *36case involves the only application of the ordinance against erotic dancers.
Finally, even if the hypothetical “technical cases” were real, the secondary effects doctrine provides a constitutionally adequate basis for judicial deference to prosecutorial discretion. See generally Erie, 529 U.S. at 295, 120 S.Ct. at 1394 (recognizing “that one specific occurrence of public nudity — nude erotic dancing — is particularly problematic because it produces harmful secondary effects”). The impact on the local community of a strip club featuring erotic dancers can hardly be equated with nursing mothers in public restaurants, swimmers at a neighborhood pool, or, for that matter, a surprise visit from a scantily-clad Jennifer Lopez. For the same reason the secondary effects principle provides legitimacy to the governmental interest in regulating the business of erotica, it also explains why prosecutors may make commonsense distinctions between nursing mothers and swimmers, on the one hand, and erotic dancers, flashers, and public urinators, on the other.
IV.
In sum, I disagree with the majority’s reasoning as well as its result. Both take the marginal speech right implicit in erotic dancing well beyond any existing precedent. I would affirm the trial court’s finding that the Henrico ordinance neither operates as a content-based regulation of free speech nor offends void-for-vagueness principles. I also agree with the trial court that the appellants did not make out a legally viable claim of selective prosecution.
For these reasons, I respectfully dissent.
. See also United States v. Biocic, 928 F.2d 112, 116 (4th Cir.1991) (finding no right to public nudity under "the profound rights of person-hood and privacy”); Chapin v. Southampton, 457 F.Supp. 1170, 1174 (E.D.N.Y.1978) (“It is undoubted that public nudity can be banned.” (citation omitted)); State v. Ciancanelli, 181 Or.App. 1, 45 P.3d 451, 455 (2002) (surveying historical disdain toward public nudity); Lacour v. State, 21 S.W.3d 794, 796 (Tex.App.2000) (recognizing public nudity as “merely conduct; not expressive conduct”); Tri-State Metro Naturists v. Lower, 219 N.J.Super. 103, 529 A.2d 1047, 1050-53 (Law Div.1987) (recognizing that no right to appear nude in public exists under the First, Fifth, or Fourteenth Amendments); People v. Hollman, 68 N.Y.2d 202, 507 N.Y.S.2d 977, 500 N.E.2d 297, 301 (1986) ("prohibiting public nudity is plainly within the State’s police powers”).
. See Indiana v. Baysinger, 272 Ind. 236, 397 N.E.2d 580, 587 (1979) (noting that it is "constitutionally required to tolerate or to allow some nudity as a part of some larger form of expression meriting protection" and, therefore, limiting the reach of the Indiana Public Indecency statute only to activities involving pure conduct containing no constitutionally protected expressive element); Glen Theatre, Inc. v. Pearson, 802 F.2d 287, 289 (7th Cir.1986) (basing its rejection of the plaintiff’s overbreadth claim on the limiting construction provided by Baysinger).
. See Erie, 529 U.S. at 299, 120 S.Ct. at 1396 (rejecting suggestion in dissenting opinion that municipality must develop "specific evidentiary record” on secondary effects); Giovani Corandola, Ltd., 303 F.3d at 514 ("No record evidence supports this [secondary effects] claim----Even though the Commission has submitted no direct evidence of legislative *25motive, we believe that precedent requires us to evaluate the challenged restrictions as content-neutral provisions aimed at secondaty effects.”).
. A municipality’s means for attacking secondary effects need not "greatly reduce these secondary effects.” SOB, Inc. v. County of Benton, 317 F.3d 856, 863 (8th Cir.2003) (citing Erie, 529 U.S. at 301, 120 S.Ct. 1382). Instead, the means must merely "further the interest in combating such effects.” Id. (citing Erie, 529 U.S. at 301, 120 S.Ct. at 1397). Municipalities enjoy this leeway to have "a reasonable opportunity to experiment with solutions to admittedly serious problems.” SOB, Inc., 317 F.3d at 863 (citation omitted).
. Even if we did not have this legislative history, the legislative intent underlying public nudity bans can be inferred as a matter of law. See Barnes, 501 U.S. at 567-68, 111 S.Ct. at 2461 ("It is impossible to discern, other than from the text of the statute, exactly what governmental interest the Indiana legislators had in mind when they enacted this statute____Nonetheless, the statute’s purpose of protecting societal order and morality is clear from its text and history. Public indecency statutes of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency, including nudity, was a criminal offense at common law, and this Court recognized the common law roots of the offense of ‘gross and open indecency’ in Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 (1948). Public nudity was considered an act malum en se. Le Roy v. Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (K.B.1664). Public indecency statutes such as the one before us reflect moral disapproval of people appearing in the nude among strangers in public places.”)