dissenting.
I would reverse the judgment of the District Court. I think this case is distinguishable from Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), on several grounds.
In Young, the ordinance in question was an amendment to an “Anti-Skid Row Ordinance” that had been adopted ten years earlier by the Detroit Common Council. The amendment added adult establishments 1 to a group of previously regulated uses that included cabarets, hotels or motels, bars, pawnshops, pool halls, public lodging houses, second-hand stores, shoeshine parlors, and taxi-dance halls. The Council had made specific findings about the possible adverse effects of a concentration of these uses in Detroit neighborhoods and determined that regulation of “adult uses” was warranted.2 In doing so, the *560Council relied considerably upon the opinions of urban planners and real-estate experts that concentrations of “adult” book stores and theatres would cause a decline in the “quality of life” in areas in which the concentrations occurred.
In the present case, the North Little Rock City Council enacted its zoning ordinance, which prohibited the showing of certain sexually explicit films within 100 yards of specified areas, only after learning of the imminent opening of the city’s first “adult” movie theatre. Although the ordinance contains a brief statement of the City Council’s reasons for enacting the legislation,3 it is not so specific as the findings recited in the Detroit ordinance, and the Council’s actions apparently were not based on any studies by social scientists nor on a demonstrated past history of “adult” theatres’ causing neighborhood deterioration. Such demonstrated findings were a critical factor in the decision upholding the Detroit ordinances. See Young v. American Mini Theatres, supra, 427 U.S. at 55, 80, 96 S.Ct. at 2445, 2457 (Powell, J., concurring); see also Ellwest Stereo Theaters, Inc. v. Byrd, 472 F.Supp. 702 (N.D.Tex.1979); E & B Enterprises v. City of University Park, 449 F.Supp. 695 (N.D.Tex.1977).
It may be true that, as stated in Genusa v. City of Peoria, 619 F.2d 1203, 1211 (7th Cir. 1980), “a city need not await deterioration in order to act,” and that “[a] legislative body is entitled to rely on the experience and findings of other legislative bodies as a basis for action.” It seems logical, however, to require some independent basis for a finding that the presence of a single theatre within 100 yards of a specific area of the city will have a deleterious effect upon the surrounding neighborhood.4 The expert testimony relied upon by the Detroit Common Council in Young concerned specifically the harmful effects of a concentration of adult uses. Absent evidence suggesting neighborhood decline from the presence of a single adult theatre, the North Little Rock City Council did not “adequately justif[y] its substantial restriction of protected activity.” Schad v. Borough of Mount Ephraim,-U.S.-,-, 101 S.Ct. 2176, 2184, 68 L.Ed.2d 671 (1981) (footnote omitted).
Another significant difference between the Detroit ordinance and the North Little Rock ordinance is that the former did not affect existing “adult” establishments, but only the location of new ones. And as noted by the District Court in Purple Onion, Inc. v. Jackson, 511 F.Supp. 1207, 1224 (N.D.Ga.1981), “most adult zoning ordinances passed in the wake of Young v. American Mini Theatres, Inc., have contained grandfather clauses permitting preexisting, nonconforming uses as to all regulated adult businesses.” Although the Avalon Cinema had not officially opened at the time the North Little Rock ordinance was passed, all preparatory work had been substantially completed. Given the fact that no other adult theatre existed in the city, the ordinance had the effect of virtually suppressing public access to sexually ori*561ented (but nonobscene) adult entertainment.
The Court today emphasizes that there is “a sizeable swath of the commercial downtown North Little Rock available for such [adult entertainment] uses.” Ante, at 558. In testimony before the District Court, however, the city planning director admitted that he did not know whether there were any available or existing structures which might be utilized for the purpose desired by Avalon Cinema. Tr. 16. There may be few, if any, feasible locations in the commercial downtown area for an “adult” movie theatre.
There was no opinion of the Supreme Court covering all of the issues in Young. That is, although there were five votes to uphold the Detroit ordinance, the five Justices in the majority could not agree on a common rationale. Thus, if Young is to be used as authority to sustain this North Little Rock ordinance, the ordinance must satisfy not only the criteria of the plurality opinion in Young, but also those of Mr. Justice Powell’s concurrence. In his concurring opinion, Justice Powell viewed Young as “presenting an example of innovative land-use regulation, implicating First Amendment cóncerns only incidentally and to a limited extent.” Young v. American Mini Theatres, Inc., supra, 427 U.S. at 73, 96 S.Ct. at 2453. He then proceeded to apply the four-part test of United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), under which a governmental regulation may be justified, despite its incidental impact upon First Amendment interests.5 In finding that the Detroit ordinance met the third and fourth, as well as the first two, parts of the O’Brien test, Justice Powell stated:
It is clear both from the chronology and from the facts that Detroit has not embarked on an effort to suppress free expression. The ordinance was already in existence, and its purpose clearly set out, for a full decade before adult establishments were brought under it. When this occurred, it is clear — indeed it is not seriously challenged — that the governmental interest prompting the inclusion in the ordinance of adult establishments was wholly unrelated to any suppression of free expression.
Young v. American Mini Theatres, supra, 427 U.S. at 80-81, 96 S.Ct. at 2457 (Powell, J., concurring) (footnote omitted) (emphasis mine).
Here, it is clear that the North Little Rock ordinance fails at least the third part of the O’Brien test. The City Council enacted the ordinance only after being informed of the impending opening of the Avalon Cinema adult theatre. One cannot ignore the fact that its passage was an “emergency” measure to prevent the exhibition and sale of sexually oriented films in North Little Rock.6
In sum, the North Little Rock ordinance is clearly a content-based regulation of protected speech. This is not an obscenity case, and the city does not claim that the *562ordinance is limited to obscenity. The city’s power to prosecute Avalon if it exhibits an obscene film is not questioned, either by the plaintiff or by me. This ordinance would reach a two-hour film, for example, in which one of the enumerated acts or parts' of the body is depicted for a few seconds, no matter how much artistic merit or intellectual content the film as a whole might have.7 Such an enactment cannot, under traditional First Amendment doctrine, be justified as a reasonable regulation of the time, place, and manner of lawful speech. The Supreme Court has quite recently repeated the rule that a “major criterion for a valid time, place, and manner restriction is that the restriction ‘may not be based upon either the content or subject matter of the speech.’ ” Heffron v. International Soc’y for Krishna Consciousness, - U.S.----, -, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981), quoting Consolidated Edison Co. v. Public Serv. Comm’n., 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980).
The interests asserted by the city are not without force. There is such a thing as trash, and it is different from art. But under the First Amendment, it is neither for city councils, nor for judges, to draw the line between the two. I respectfully dissent.
. “Adult establishments” included adult book stores, adult movie theatres, topless dance halls, massage parlors, and other places of “adult” entertainment from which minors are excluded.
. Section 66.000 of the Detroit Ordinance stated:
In the development and execution of this Ordinance, it is recognized that there are some uses which, because of their very nature, are recognized as having serious objectionable operational characteristics, particularly when several of them are concentrated *560under certain circumstances thereby having a deleterious effect upon the adjacent areas. Special regulation of these uses is necessary to insure that these adverse effects will not contribute to the blighting or down grading of the surrounding neighborhood ....
. Section 5 of the North Little Rock Ordinance, in part, states:
The City Council has found and determined that the prohibition of certain sexually explicit films in specific areas of the City is immediately necessary and desirable to insure and safeguard the proper development of young people and adults alike within the City of North Little Rock ....
This “finding” is little more than a statement that the City Council thinks a certain kind of protected speech is morally objectionable. Such a purpose, however defensible on moral grounds, cannot, under the First Amendment, be the basis for restricting protected speech.
. In his concurrence in Young, Justice Powell observed that “[mjost of the ill effects [from adult establishments] .. . appear to result from clustering itself rather than the operational characteristics of individual theatres.” Young v. American Mini Theatres, supra, 427 U.S. at 82 n.5, 96 S.Ct. at 2458 n.5. It should be recalled that the Detroit ordinance required dispersal and was aimed to prevent concentration. The North Little Rock ordinance, on the other hand, will apparently require concentration of “adult” theatres in a certain commercial area.
. Under O’Brien, a governmental regulation is sufficiently justified if:
(1) It is within the constitutional power of the government;
(2) It furthers an important or substantial governmental interest,
(3) The governmental interest is unrelated to the suppression of free expression ; and
(4) The incidental restriction on alleged First Amendment freedom is no greater than essential to the furtherance of that interest.
391 U.S. at 377, 88 S.Ct. at 1679 (emphasis mine).
. The Court argues that the record allows another interpretation and emphasizes that while the ordinance was enacted on November 19, 1980, the theatre was not planning to open until December 18, 1980. Ante, p. 559. An alderman testified, however, as follows:
[Plaintiffs Attorney] Q Did you state to the Council as a whole that you hoped that [the] ordinance would keep the theater from opening?
[Alderman Duke] A I certainly did.
[Plaintiffs Attorney] Q Did you believe at the time that the theater was going to open that night [November 19, 1980]?
[Alderman Duke] A The report was that it was going to open.
Tr. 8.
. By contrast, the ordinance upheld in Young restricted only material “distinguished or characterized by an emphasis” on certain specified activities or parts of the body. Under the Detroit ordinance, a film would be judged as a whole. The North Little Rock ordinance is, in this respect, more similar to the ordinance struck down in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). Compare Young, 427 U.S. at 71-72 n.35, 96 S.Ct. at 2452-2453 n.35 (plurality opinion of Stevens, J.), 83-84 (Powell, J., concurring), with Erznoznik, 422 U.S. at 213-15, 95 S.Ct. at 2274-75.