dissents.
I respectfully dissent. I believe the panel properly decided the case, Tool Box v. Ogden City Corp., 316 F.3d 1167 (10th Cir.2003), and nothing in the majority en banc opinion changes my mind. I adhere to the analysis wisely set forth by Judge Aldisert. Nonetheless, I have some additional observations prompted by the en banc review.
I have difficulty understanding the court’s contention that Tool Box has not challenged the Protective Covenants on an “as applied” basis. Although the City has continually argued this position, my recollection is that at every junction of this appeal, including oral argument before the *1244en banc court, counsel for Tool Box made clear his client’s claim was based on two grounds. One was a facial challenge, but the other was that the Covenants were invalid as they were applied to Tool Box.
Indeed, it was upon the “as applied” basis that Tool Box filed the motion for partial summary judgment which provoked the ultimate resolution of this case in the district court. Id. at 1173. In analyzing this claim for the panel, Judge Aldisert refined the controversy by pointing out:
The protective covenants do not incidentally impact protected speech but merely permit such impact through the discretion of the Review Board and the Mayor, the district court erred in considering the protective covenants under the O’Brien test.
Id. at 1179 (emphasis in original) (citing United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)).
Facially, the Covenants do not imply an attempt to regulate speech. In very general terms, they describe permissible uses of the property within the industrial park. Certain conditions, such as fire hazards, noise, “vibrations which will injure the reputation of said premises of the neighboring property,” are forbidden. Also prohibited is “any use which is in violation of the ordinances of Ogden City and the laws of the State of Utah.” In particular, however, the Covenants are silent on whether a sexually oriented business falls within or without their reach. The majority takes comfort, then, in the “general application” of the Covenants which permits the court to avoid a challenge to the patent unbridled discretion vested in the Board and the Mayor. I do not believe that comfort is warranted.
Generally “laws that are not aimed at conduct commonly associated with expression” will not give rise to a charge of censorship. City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 760-61, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Yet, the majority has overlooked the exception to this rule. Indeed, as the Court has distinguished:
[A] law requiring building permits is rarely effective as a means of censorship. To be sure, on rare occasion an opportunity for censorship mil exist, such as when an unpopular newspaper seeks to build a new plant. But such laws provide too blunt a censorship instrument to warrant judicial intervention prior to an allegation of actual misuse. And if such charges are made, the general application of the statute to areas unrelated to expression will provide the courts a yardstick with which to measure the licensor’s occasional speech-related decision.
Id. at 761, 108 S.Ct. 2138 (emphasis added).
This case presents one of the instances in which a charge has been made that a “licensor” has applied a facially neutral law to deny protected expression. Hence, whether Tool Box has presented a facial oí-an as applied attack, or whether the Covenants are written in language of general applicability, does not govern the outcome of this ease. Under either attack, the Court has acknowledged the claim of censorship can be made. Id.
That the City made its decision on the basis of protected speech is not even in controversy here. Nude dancing is protected expression, even if marginally so. Additionally, an analysis of the Covenants themselves underscores that the Tool Box permit was denied because the ruling officials believed, without statutory direction, nude dancing is not “wholesome.”
Following those stark points, I look first to the fact the Covenants state their purpose is to “create a wholesome environment for the conduction [sic] of selective manufacturing and marketing enterpris*1245es.” (emphasis added). It should be significant, therefore, that when this purpose was adopted, the conduct of a sexually oriented business was both a use permitted within the industrial park by a specific ordinance and was not a violation of any other of the City ordinances. Thus, I presume when the drafters of the Covenants adopted the wholesomeness test, they had to have known a sexually oriented business was lawfully permitted within the industrial park.
Next, neither the Board, the Mayor, nor the majority of this court cites any specific language in the Covenants to show how the use proposed by Tool Box was not permitted. Although each points to generalized justifications, nothing within the text of the Covenants makes the proposed use by Tool Box a violation of those general terms. Indeed, the Covenants are silent on sexually oriented businesses all together. Yet, the basis for the Board’s decision and the ruling of the Mayor was that Tool Box’s proposed use would not comport with the need to create a “wholesome environment,” and that it “conflicts with those types of business [sic] which are defined as ‘allowed uses’ and which advance the purposes for which the industrial park was established.” But how the connection was made between the proposed use and a violation of the Covenants is not explained by either the Board, the Mayor, or the majority.
The Covenants do not define “wholesomeness” nor do they even suggest nude dancing is not “wholesome.” Nonetheless, the Board and the Mayor decided such is the case. Under these Covenants, the determination of what is wholesome and what is not is left to the unfettered determination of the Board and the Mayor. Yet, despite the protected status of nude dancing, which the majority concedes, it appears nude dancing is unwholesome and repugnant in the City of Ogden because the Board simply said so.
The same can be said for the other reason the Board denied the Tool Box application. In what way does nude dancing conflict with the other businesses in the industrial park? Tool Box would not violate any of the named conditions the Covenants provide as impermissible business conduct. Nothing in the record suggests it would be a fire hazard, or would be “noisy,” or create illicit “vibrations” that would “injure the reputation” of other property owners. It must be, then, that the decision of the Board was based solely upon its own notions of “wholesomeness.”
Moreover, there is nothing before us to suggest the enforcement of the Covenants was for any purpose other than to stifle protected expression. Although the majority alludes to “the ‘content-neutral’ purpose of limiting the secondary effects” of nude dancing, there is nothing in the record to suggest that purpose was actually pursued.
For these reasons, as well as those set forth in the panel opinion, I must dissent. I disagree Tool Box “cannot” properly challenge the “improper purpose of stifling expression protected by the First Amendment.” Maj. Op. at 1243. While not an advocate of the values of nude dancing personally, I still find censorship by subterfuge constitutionally repugnant. I would reverse the holding of the district court.