concurring.
Like the majority, I conclude that we should affirm the District Court’s grant of summary judgment in favor of the State Troopers. I write separately, however, because I believe the constraints of Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), compel a different analytical path.13
The majority acknowledges that “Saucier requires that courts engage a two-tiered analysis that first examines whether a constitutional violation exists.” Yet, the majority declines to follow this mandate because it finds that doing so in this case would not accomplish Saucier’s purpose. It may be that the Supreme Court will return to its pre-Saucier jurisprudence, where determining first whether the plaintiff has alleged a deprivation of a constitu*113tional right is considered only the “better approach.” See County of Sacramento v. Lewis, 523 U.S. 833, 842, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998); see also Siegert v. Gilley, 500 U.S. 226, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991) (clarifying the analytical structure under which a claim of qualified immunity should be addressed). For now, however, I regard the Saucier rule as mandatory and do not believe that inferior courts are free to depart from it. In Scott v. Harris, — U.S. —, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007), the Court explicitly stated:
In resolving questions of qualified immunity, courts are required to resolve a “threshold question: Taken in the light most favorable to the party asserting the injury, do the facts alleged show the officers conduct violated a constitutional right? This must be the initial inquiry.” If, and only if, the court finds a violation of a constitutional right, “the next, sequential step is to ask whether the right was clearly established ... in light of the specific context of the case.”
Scott, 127 S.Ct. at 1774 (emphasis added) (internal citations omitted). See also Bunting v. Mellen, 541 U.S. 1019, 124 S.Ct. 1750, 158 L.Ed.2d 636 (2004) (Scalia, J. dissenting from the denial of certiorari) (“[Sjonae courts [have] conclude[d] (mistakenly) that the constitutional question-first rule is customary, not mandatory.”). Perhaps in circumstances where the underlying principle of law elaboration is not meaningfully advanced or where a court would be required to address unsettled questions of state law, the jurisprudential policy of avoiding unnecessary adjudication of constitutional issues is actually the better approach.14 But until the Supreme *114Court crafts an exception to the Saucier rule, it is my view that we are not free to make that policy choice, however salutary. See, e.g., Doe v. Delie, 257 F.3d 309, 315 n. 4 (3d Cir.2001) (“While there may be pragmatic considerations favoring [the] qualification of the Supreme Court’s unqualified language, the Court has not yet suggested any basis for departing from the rule.... ”). I believe, therefore, that the proper analytical course in this case is first to consider whether the Troopers violated the Constitution.
Because I conclude that, on the facts alleged, the Troopers’ conduct did not violate the Plaintiffs’ constitutional rights, my analytical course would not require that we reach the question of qualified immunity.
I.
Plaintiffs allege that the Troopers violated their Fourth Amendment rights by arresting them without probable cause. They argue that their conduct did not present the Troopers with probable cause to arrest because they were engaging in protected First Amendment activity and, as such, the expressive nature of their conduct should have been taken into account by the Troopers in making their probable cause determination at the scene.
Probable cause to arrest exists when “the facts and ■ circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir.1995). “To determine whether an arrest is valid, we look to the law of the state where the arrest took place.” Wright v. City of Philadelphia, 409 F.3d 595, 601 (3d Cir.2005) (citations omitted). The question of “probable cause in a section 1983 damage suit is one for the jury.” Montgomery v. De Simone, 159 F.3d 120, 124 (3d Cir.1998). However, a district court may conclude “that probable cause did exist as a matter of law if the evidence, viewed most favorably to Plaintiff, reasonably would not support a contrary factual finding,” and may grant summary judgment accordingly. Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir.1997).
The Troopers contend that they had probable cause to arrest the Plaintiffs because their conduct violated Pennsylvania’s open lewdness statute, which provides that “[a] person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.” 18 Pa.C.S.A. § 5901. The relevant inquiry, then, is whether it was objectively reasonable for the Troopers to conclude that they had probable cause to arrest the Plaintiffs based on “the facts available to the officers at the moment of arrest.” Barna v. City of Perth Amboy, 42 F.3d 809, 819 (3d Cir.1994) (quotation omitted).15
*115A review of the record, particularly the videos of the event, reveals that a crowd had gathered along the side of a small commercial highway. Kara Dimitris appeared in the videos wearing a green shirt, a hat and yellow gloves and carrying a sign saying, “Great War, George.” When she shouted, “Shirts off,” the Plaintiffs removed their clothes until they were wearing only thong underwear. The District Court observed that “the thin material of their tight-fitting thongs unmistakably displayed the contours and movement of their genitals.... From the rear, the thongs displayed the entire surface of their buttocks; from various angles, Plaintiffs appeared to be entirely naked.” Egolf v. Witmer, 421 F.Supp.2d 858, 864 (E.D.Pa.2006). An examination of the record reveals that the contours and movement of the Plaintiffs’ genitals could be seen by bystanders while the Plaintiffs arranged themselves into the pyramid, but not while they were in the pyramid formation. And the thongs revealed the entire surface of each Plaintiffs buttock. The Plaintiffs did not disrobe with great speed, but then quickly formed a human pyramid. The videos show young children, including toddlers, in the immediate area. Several members of the crowd quickly became agitated, shouting at the Plaintiffs and at Dan Rhineer, the cameraman. Several women observed that their children were present and upbraided the protesters. Others made unfavorable comments about their taste and respect for authority. Rhineer attempted to explain the protest, stating that “This has happened before,” and that, “American soldiers did this [to prisoners].” When Rhineer remarked that children needed to learn about the Abu Ghraib torture, one concerned onlooker responded, “Not naked they don’t.”
Pennsylvania case law interpreting what constitutes a “lewd act” has. consistently maintained that the essence of a “lewd act” is “sexuality or nudity in public,” without much elaboration. See Commonwealth v. Fenton, 750 A.2d 863, 866 (Pa.Super.2000) (citing Commonwealth v. Williams, 394 Pa.Super. 90, 574 A.2d 1161 (Pa.Super.1990)). In the case of Commonwealth v. Heinbaugh, 467 Pa. 1, 354 A.2d 244, 247 (Pa.1976), the Pennsylvania Supreme Court concluded that § 5901 “must be read as restating the established common law standard which has long existed in this Commonwealth.” The Court explained:
Open lewdness was an indictable offense at common law. It was defined as an act of gross and open indecency which tends to corrupt the morals of the community. Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840, 849 (1948); Commonwealth v. Sharpless, 2 Serg. & R. 91, 100 (1815); IV Blackstone Commentaries 64 n. 38 (W Lewis ed. 1898); 53 C.J.S. Lewdness, p. 4 (1948). While the language of the chai*116lenged Pennsylvania lewdness statute differs in some respects from this common law definition, there is no difference in meaning. The statute in question is a verbatim adoption of the lewdness provision of the Model Penal Code, ALI, Model Penal Code, Proposed Official Draft 251.1. The comment to that section makes it clear that the drafters intended to codify the pre-existing common law: “Lewd or indecent behavior is punishable in all jurisdictions. The prohibited conduct amounts to gross flouting of community standards in respect to sexuality or nudity in public.” ALI, Model Penal Code, Tentative Draft No. 13 §§ 213.4 & 251.1 Comment at p. 81.
Heinbaugh, 354 A.2d at 247. Since Heinbaugh, it appears that “[a]ll of the reported Pennsylvania cases on open lewdness involved public masturbation or public displays of genitalia.” Commonwealth v. Williams, 394 Pa.Super. 90, 574 A.2d 1161, 1163 (Pa.Super.1990).16 Nevertheless, “lewd” acts remain interpreted as “sexuality or nudity in public.” Commonwealth v. Tiffany, 926 A.2d 503, 510-11 (Pa.Super.2007) (citing Commonwealth v. Fenton, 750 A.2d 863, 866 (Pa.Super.2000)). While Tiffany dealt with the conviction of a man who swam nude in a public place with minors, ■ the court, when discussing the § 5901 conviction, explained only that “Section 5901 pertains to conduct that: 1) involves public nudity or public sexuality, and 2) represents such a gross departure from accepted community standards as to rise to the level of criminal liability.’ ” Id. (citing Williams, 574 A.2d at 1163).
What the Pennsylvania cases make clear, then, is that either public nudity or public sexuality must have occurred to establish a violation of § 5901, not necessarily both. See, e.g., Commonwealth v. Polomchak, 10 Pa.D. & C.4th 395, 397 (C.P. Bucks Co.1991), aff'd, 421 Pa.Super. 635, 612 A.2d 535 (1992) (finding defendant guilty of violating § 5901 where he sat at a bar with his hand in his lap underneath his coat and masturbated or feigned masturbation, noting that “actual nudity is not a required element of the crime of open lewdness”); Williams, 574 A.2d 1161 (holding that a public appearance in a t-shirt and “tight-fitting briefs” is not a lewd act).
The Troopers do not argue, nor could they, that the Plaintiffs’ conduct constituted public sexuality. The question, then, is whether the Plaintiffs’ conduct gave the *117Troopers probable cause to arrest them for open lewdness in light of the fact that, to date, the reported § 5901 cases involving nudity include only display of genitalia.
My read of Pennsylvania law is that it contemplates a fairly broad definition of nudity. The statutory definition of “nudity” in other Pennsylvania statutes suggests that exposure of the buttocks, the conduct Plaintiffs engaged in here, falls within § 5901’s ambit. For example, the Pennsylvania statute regulating distribution of obscene materials defines “nudity” as the “showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.” 18 Pa.C.S. § 5903 (emphasis added). In addition, Pennsylvania’s statute prohibiting “invasion of privacy” defines “[f]ull or partial nudity,” as, “[display of all or any part of the human genitals or pubic area or buttocks ... with less than a fully opaque covering18 Pa.C.S.A. § 7507.1 (emphasis added). Therefore, if Pennsylvania courts import into § 5901 the statutory definitions of nudity from other sections of the Pennsylvania Crimes Code, it is reasonable to conclude that exposure of the buttocks qualifies as “nudity.”
One might argue that a Pennsylvania court following Williams would hold that the Plaintiffs’ actions fall within the Williams Court’s holding that “walking about in underwear may be a foolish act,” but it is not an illegal one. Williams, 574 A.2d at 1163. In Williams, the court noted that the Commonwealth established only that appellant walked through a parking lot in a T-shirt and underwear. Id. The court then explained that the “[a]ppellant’s behavior cannot reasonably be found to fall within the purview of [§ 5901]. A person who is wearing a T-shirt and underwear is not appearing in the nude, and walking about in underwear may be a foolish act but is not a sexual act.” Id.
The case at bar offers clear distinctions from the facts in Williams. As already stated, the statutory definition of “nudity” in other Pennsylvania statutes encompasses exposure of the buttocks — activity the Plaintiffs here unmistakably engaged in. Thus, it is reasonable to say that they were “appearing in the nude” under Pennsylvania law. Beyond that, one need hardly resort to an expert on fashion to note the obvious distinction between wearing “elastic tight-fitting briefs,” Williams, 5IA A.2d at 1162, and tight-fitting thong underwear that unmistakably displays the contours and movement of an individual’s genitals, not to mention the entirety of that individual’s buttocks.17
*118A review of Pennsylvania law demonstrates that the Troopers reasonably concluded that they had probable cause to arrest Plaintiffs on violations of the open lewdness statute when the Plaintiffs’ appeared at a public gathering in tight-fitting thongs and bared their buttocks. Where the state of the law is uncertain, this Court has refused to “impose upon a police officer [ ] the duty to correctly predict how a court will answer [an] unresolved and complex legal issue.” Radich v. Goode, 886 F.2d 1391, 1398 (3d Cir.1989). Further, it was reasonable for the Troopers to presume that actual exposure of the genitals was not required in order to violate § 5901, as a separate statute prohibits such conduct. See 18 Pa.C.S. § 3127 (“A person commits indecent exposure if that person exposes his or her genitals in any public place or in any place where there are present other persons under circumstances in which he or she knows or should know that this conduct is likely to offend, affront or alarm.”); see also Commonwealth v. Polomchak, 10 Pa. D. & C. 4th 395, 397 (C.P. Bucks Co.1991) (“[A]ctual nudity is not a required element of the crime of open lewdness.”).
Given the uncertainty in the application of Pennsylvania law to the facts before us, we conclude that “[p]robable cause existed] [because] the facts and circumstances are sufficient to warrant a prudent man in believing that the [Plaintiffs] had committed or [were] committing an offense.” Radich, 886 F.2d at 1395 (internal quotations omitted) (citing Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964)). Thus, the Plaintiffs have not established that their Fourth Amendment rights were violated, i.e., that they suffered a constitutional deprivation under § 1983.
II.
The Plaintiffs argue that the Troopers violated their First Amendment rights by interfering with their protest. That would require a court considering the initial Saucier question to decide whether the Plaintiffs’ formation of the pyramid while wearing only thong underwear constituted expressive conduct, permitting them to invoke the First Amendment. See Texas v. Johnson, 491 U.S. 397, 403, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). If that court — or this panel — concluded that the conduct was expressive, its next determination would be whether the State’s regulation is related to the suppression of free expression, i.e., whether the statute is content-neutral or content-based. See id.; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (explaining that “ ‘content-neutral’ speech regulations as those that ‘are justified without reference to the content of the regulated speech’” (citations omitted)). And if the court concluded that the State’s regulation is not related to expression, then the less stringent standard announced in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), would control. Johnson, 491 U.S. at 403, 109 S.Ct. 2533. A contrary conclusion would place the State’s regulation outside of the O’Brien test. Id.
“In deciding whether particular conduct possesses sufficient communicative elements to bring the First Amendment into play,” the relevant inquiry is whether “ ‘[a]n intent to convey a particularized message was present, and [whether] the likelihood was great that the message would be understood by those who viewed it.’ ” Johnson, 491 U.S. at 404, 109 S.Ct. 2533 (quoting Spence v. Washington, 418 U.S. 405, 409-12, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974)). In reaching the constitutional claim, I am convinced that the Plaintiffs intended to convey a particularized message when they stripped down to thongs *119and formed a pyramid; and indeed, the Troopers do not dispute this. Further, on an appeal from a grant of summary judgment, it must be assumed that “the likelihood was great that the message would be understood by those who viewed it.” Spence, 418 U.S. at 411-12, 94 S.Ct. 2727. Therefore, I begin by recognizing that the Plaintiffs engaged in expressive conduct. Accordingly, they are permitted to invoke the First Amendment.
Generally, the Government has a “freer hand” in restricting expressive conduct than restricting writings and speech. Johnson, 491 U.S. at 406, 109 S.Ct. 2533. The Government may not, however, forbid particular conduct “because it has expressive elements.” Id. Therefore, in order to determine whether the O’Brien test applies here, I look to whether Pennsylvania has an interest in regulating the conduct made illegal by § 5901 that is unrelated to the suppression of expression. See id. at 407, 109 S.Ct. 2533.
What is initially clear about § 5901 is that it was intended to codify the common law. The statute was taken directly from the Model Penal Code and is a descendant of the common law offense of “open and notorious lewdness.” 14 West’s Pa. Prac., Crim. Offenses & Defenses 0240 (5th ed.) (quoting 4 Blackstone, Commentaries *64). See also Heinbaugh, 354 A.2d at 247. The purpose of the statute was to prohibit conduct that tended to corrupt the morals of the community. Heinbaugh, 354 A.2d at 247 (citing Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 92 L.Ed. 840 (1948)). The Supreme Court has made clear that “[t]he traditional police power of the States is defined as the authority to provide for the public health, safety, and morals.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 569, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). Accord The License Cases, 46 U.S. (5 How.) 504, 527-28, 12 L.Ed. 256 (1847); Medtronic, Inc. v. Lohr, 518 U.S. 470, 475, 116 S.Ct. 2240, 135 L.Ed.2d 700 (1996); Metro. Life Ins. Co. v. Massachusetts, 471 U.S. 724, 756, 105 S.Ct. 2380, 85 L.Ed.2d 728 (1985). I am satisfied that this interest is unrelated to expression, and therefore, that the statute is content-neutral.
The Plaintiffs argue that the statute18 is a content-based regulation because it is based on “the conduct’s communicative impact on others.”19 As the Troopers point out, however, the Plaintiffs’ argument is essentially that
conduct which ‘alarms’ or ‘affronts’ others has a ‘communicative impact’ by virtue of the very fact that it alarms or affronts. Offensive conduct is thus by definition ‘communicative’ — because it offends people — and for the government to proscribe such conduct is a ‘content-based regulation’ because it proscribes the ‘message’ of, well, offensiveness.
Brief of Defendant-Appellees at 27. The Plaintiffs’ argument is misplaced. It is a well-settled principle of our nation’s First Amendment jurisprudence that ideas and speech may not be proscribed merely because of the emotive impact they may have on listeners. See, e.g., Spence, 418 U.S. at 412, 94 S.Ct. 2727; Boos v. Barry, 485 U.S. 312, 108 S.Ct. 1157, 99 L.Ed.2d 333; R.A.V. v. St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Yet, I know of no case in which the Supreme Court has *120extended this proscription to conduct because it elicits an “emotive impact.” The Plaintiffs’ attempt to elide the distinction between speech and conduct, between ideas and action, must fail.20
For example, in R.A.V. v. St. Paul, several young men were prosecuted for placing a burning cross in a black neighbor’s yard, in violation of a St. Paul, Minnesota, ordinance which prohibited placing “on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” 505 U.S. 377, 380, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (citing St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis.Code § 292.02 (1990)). The Supreme Court observed that, “[c]on-tent-based regulations are presumptively invalid,” because “[t]he First Amendment generally prevents government from proscribing speech, or even expressive conduct, because of disapproval of the ideas expressed.” R.A.V., 505 U.S. at 382, 112 S.Ct. 2538 (internal citations omitted). The Court further elaborated “that nonverbal expressive activity can be banned because of the action it entails, but not because of the ideas.” Id. at 385, 112 S.Ct. 2538. The R.A.V. Court made clear that the ordinance was content-based not because it specified that the proscribed conduct had to “arouse[] anger, alarm or resentment,” but because it further restricted the impermissible bases of those sentiments to “race, color, creed, religion or gender.” Id. at 385-88, 112 S.Ct. 2538. R.A.V. v. St. Paul makes clear that regulations of expressive conduct are content-based only when the regulation is justified by an interest related to an idea or ideas communicated by the conduct, and not because the conduct elicits a reaction.
Next, the Plaintiffs urge this court to refer to the Supreme Court’s test for regulation of depictions of obscenity as articulated in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973).21 However, Plaintiffs overlook the Miller Court’s express distinction between depictions and descriptions of lewdness from lewd public conduct, stating that, “[a]l-though we are not presented here with the problem of regulating lewd public conduct itself, the States have greater power to regulate nonverbal, physical conduct than to suppress depictions or descriptions of the same behavior.” Miller, 413 U.S. at 26 n. 8, 93 S.Ct. 2607. The Court explicitly noted that the O’Brien test was appropriate when dealing with the regulation of conduct embodying “both speech and non-speech elements.” Id.
*121Taken together, R.A. V. v. St. Paul and Miller v. California teach that the O’Brien test is appropriate for the regulation of lewd conduct that can be justified without reference to expression of an idea. See also City of Erie v. Pap’s AM., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (“If the governmental purpose in enacting the regulation is unrelated to the suppression of expression, then the regulation need only satisfy the “less stringent” standard from O’Brien for evaluating restrictions on symbolic speech.”). Accordingly, application of the O’Brien test is appropriate.
The next determination for a court in deciding the constitutional question is whether the statute’s application to the Plaintiffs satisfies the four-part test of O’Brien. In other words, we must determine if the statute, as applied to the Plaintiffs, is constitutional. I conclude that it is. The O’Brien Court held that:
[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
391 U.S. at 376-77, 88 S.Ct. 1673. First, Pennsylvania has the power to regulate public lewdness. The Supreme Court has often upheld similar legislation as it falls within “[t]he traditional police power of the States ... to provide for the public health, safety, and morals.” Barnes, 501 U.S. at 569, 111 S.Ct. 2456. Second, the statute furthers an important or substantial government purpose. The Barnes Court held that a “public indecency statute furthers a substantial government interest in protecting order and morality.” Id. While the statute at issue is not designated as a “public indecency” statute, it serves the same function of protecting societal order and morality. See Barnes, 501 U.S. at 568, 111 S.Ct. 2456.
The third O’Brien factor — whether the government interest is unrelated to the suppression of free expression — is similar to the' question of content-neutrality. See Pap’s AM., 529 U.S. at 296, 120 S.Ct. 1382 (“[T]he regulation is still 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.”). The Government’s interest in discouraging lewdness and protecting children and unsuspecting adults from such acts is unrelated to the suppression of any message intended to be conveyed by the lewd acts. See Commonwealth v. Allsup, 481 Pa. 313, 392 A.2d 1309, 1311 (Pa.1978) (explaining that “[t]he gist of the crime is the immediate offensive or frightening impact on members of the public who observe or are likely to observe the defendant’s conduct”). As the District Court recognized, the Plaintiffs’ argument — that they were “expressing themselves” through their nudity-does not change this conclusion. See Barnes, 501 U.S. at 571, 111 S.Ct. 2456 (“Public nudity is the evil the State seeks to prevent, whether or not it is combined with expressive activity.”).
The fourth O’Brien factor inquires whether the restriction on First Amendment freedoms is no greater than necessary to fulfill the Government’s interest. 391 U.S. at 377, 88 S.Ct. 1673. See also Turner Broad. Sys., Inc. v. F. C.C., 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (“[T]he requirement of narrow tailoring is satisfied ‘so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’ ”) (citations omitted). The interest served by *122§ 5901 is to prevent lewd conduct in a setting where it clearly violates community standards. See Pap’s A.M., 529 U.S. at 296, 120 S.Ct. 1382. Plaintiffs do not propose a less restrictive means of achieving this end than the approach employed in § 5901, nor do I find it easy to posit one. Furthermore, because this is a content-neutral restriction, the least restrictive means analysis is not required. See Pap’s AM., 529 U.S. at 301-02, 120 S.Ct. 1382.
Because the State applied a content-neutral law in a constitutional manner to the Plaintiffs, and because I have already determined that the Troopers had probable cause to arrest the Plaintiffs, I conclude that the Plaintiffs have failed to show that they suffered a constitutional deprivation. I would end our inquiry with that determination, and decline to reach the question of qualified immunity.
III.
Although I am unable to join the majority analysis, I concur in the result and would affirm the District Court’s grant of summary judgment in favor of the State Troopers.
. I fully recognize that a number of circuits have declined to follow Saucier and that there have been doubts expressed, by some of the courts of appeals and the Supreme Court alike, regarding the wisdom of Saucier’s mandatory two-step approach to resolving questions of qualified immunity. See, e.g., Buchanan v. Maine, 469 F.3d 158, 168 (1st Cir.2006) ("We do not think the law elaboration purpose will be well served here, where the Fourth Amendment inquiry involves a reasonableness question which is highly idiosyncratic and heavily dependent on the facts.... Given the complexity of the matter, and since it is perfectly clear that the officers are entitled to immunity, we turn to the second and third prongs.”); Robinette v. Jones, 476 F.3d 585, 592 n. 8 (8th Cir.2007) ("Saucier requires a full analysis of the first prong of a qualified immunity analysis because it 'permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity.’ However, the ‘law’s elaboration from case to case’ ... would be ill served by a ruling here, where the parties have provided very few facts to define and limit any holding on the reasonableness of the execution of the arrest warrant.”) (internal citations omitted); McClish v. Nugent, 483 F.3d 1231, 1253 n. 1 (11th Cir.2007) (Andei'son, J., concurring specially) ("Unfortunately, in this case, because the defendants prevailed on the clearly established prong, the Saucier rule not only requires a constitutional holding that would be unnecessary otherwise; it also operates to insulate from further appellate review an erroneous constitutional ruling that will guide the conduct of police officers in three states.... Also, under the Saucier approach, a court is handicapped in addressing the constitutional issue because at least one party often has little incentive to litigate the issue vigorously, especially when it is apparent that the law is not clearly established, as in this case.”); Lyons v. City of Xenia, 417 F.3d 565, 581-84 (6th Cir.2005) (Sutton, J., with whom Gibbons, J., joins, concurring) ("I cannot resist adding still another separate writing in this case that questions the rigidity of [the Saucier ] requirement. While I see the virtue in telling lower courts that they should generally answer the constitutional question before the clearly established question, I wonder whether it makes sense to mandate that they do so in all cases, no matter the costs, no matter the ease with which the second question might be answered.”). Further, twenty-eight states and Puerto Rico have recently urged, albeit unsuccessfully, the Supreme Court in an amicus brief to reconsider its mandatory Saucier approach to qualified immunity. See Brief for Twenty-Eight States and Puerto Rico as Amici Curiae in Support of Petitioner, Scott v. Harris, - U.S. -, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007).
Most recently, the Supreme Court granted certiorari in the case of Callahan v. Millard County, 494 F.3d 891 (10th Cir.2007), directing the parties to brief and argue “[wjhether the Court's decision in Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) should be overruled.” Pearson v. Callahan, - U.S. -, 128 S.Ct. 1702, - L.Ed.2d (2008).
. Along with the majority, I do not hold the view that Saucier intended to disavow the prudential rule of avoiding constitutional questions. Rather, the Saucier Court recognized a competing goal — the development of substantive constitutional protections in the constitutional tort context that might otherwise go undeveloped if lower courts routinely disposed of § 1983 cases without reaching the merits. Indeed, a right can never be "clearly established” if the right has never been recognized at all. The Supreme Court "has never treated avoidance as an absolute; it is a policy aimed at specific objectives, and these nearly always compete with other goals.” Michael L. Wells, The “Order-of-Battle” in Constitutional Litigation, 60 SMU L.Rev. 1539, 1543 (2007). While I do not express a view as to whether the Court’s articulated goal counsels against applying the "longstanding maxim,” adherence to Saucier's "order of battle” does not require one to accept that Saucier abrogated the prudential rule.
In this vein, the majority’s citation of Saucier, that, "the [sequential] procedure permits courts in appropriate cases to elaborate the constitutional right with greater degrees of specificity” must be read within the context of the entirety of the opinion, and the Court’s subsequent jurisprudence. (Majority Op. at — n. 9) (quoting Saucier, 533 U.S. at 207, 121 S.Ct. 2151) (emphasis added). At the outset of the Saucier opinion, the Court explains that in furtherance of detennining whether a constitutional right was violated, there may be cases in which it is appropriate, and indeed necessary, to elaborate on the constitutional right with respect to the new set of facts before the court, so that the right may be clearly established in later cases. See Saucier, 533 U.S. at 201, 121 S.Ct. 2151. Specifically, the Court stated that
In the course of determining whether a constitutional right was violated on the premises alleged, a court might find it necessary to set forth principles which will become the basis for a holding that a right is clearly established. This is the process for the law's elaboration from case to case, and it is one reason for our insisting upon turning to the existence or nonexistence of a constitutional right as the first inquiry. The law might be deprived of this explanation were a court simply to skip ahead to the question whether the law clearly established that the officer’s conduct was unlawful in the circumstances of the case.
Id. Further, the majority cannot possibly be arguing that its citation to Saucier supports a view that the two-step approach is merely permissive, i.e., should in actuality only be employed "in appropriate cases.” Indeed, *114the Court's subsequent jurisprudence reiterating its mandatory nature, as well as the dissents filed in those opinions, compel a contrary interpretation.
. As stated, Plaintiffs contend that their First and Fourth Amendment rights are inextricably linked — that the Troopers lacked probable cause to arrest them because their conduct was protected under the First Amendment. Indeed, when pure speech is at issue this Court has stated that
[T]he statute must "be carefully drawn or authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.” Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir.2003) (quoting Gooding v. Wilson, 405 U.S. 518, 522, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972)); Commonwealth v. Mastrangelo, 489 Pa. 254, 414 A.2d 54, 58 (1980) ("disorderly conduct statute may not be used to punish anyone exercising a protected First Amendment right”). Speech that *115does not receive First Amendment protection, in turn, "include[s] the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words[.]” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942).
Gilles v. Davis, 427 F.3d 197, 204 (3d Cir.2005). The interplay of Fourth and First Amendment rights with respect to expressive conduct, as opposed to speech, does not give rise to clear rules of application. Here, expressive conduct is unquestionably at issue, as I discuss later. Yet, it is also clear that the open lewdness statute prohibits conduct that is inherently unrelated to the political message that the Plaintiffs attempted to convey. This reality is important, especially in a case such as this in which police officers are required to make an on-the-spot probable cause determination. Because the Plaintiffs do not facially attack the statute as overbroad or void for vagueness, and because I conclude that the statute was constitutionally applied to the Plaintiffs and that probable cause for arrest existed, I need not further consider the extent of the relationship.
. The 'Williams Court looked to a summary of Pennsylvania's case law on open lewdness as laid out by a majority of the Supreme Court of Pennsylvania:
All prosecutions have been based ... on a “gross flouting of community standards in respect to sexuality or nudity in public.” See Commonwealth v. Heinbaugh, supra (masturbation in public); Commonwealth v. Davidson, 220 Pa.Super. 451, 289 A.2d 250 (1972) allocatur refused, 221 Pa.Super. xlix (naked motorist stopped a young lady to ask directions); Commonwealth v. Falcone, 202 Pa.Super. 474, 198 A.2d 421 (1964) (masturbation in a public cemetery); Commonwealth v. Warner, 51 Pa.D. & C.2d 63 (C.P. Centre Cnty.1971) (defendant disrobed in public, made uninvited visits to private homes, and entered a public pizza parlor); Commonwealth v. Anzulewicz, 42 Pa.D. & C.2d 484 (Q.S.Mont.Cnly.1967) (display of genitalia in private dwelling but in front of window where a neighboring family "in the reasonable use of (their) house” could not help but observe defendant's activities); Commonwealth v. Helms, 38 Pa.D. & C.2d 496 (Q.S. York Cnty.), aff'd per curiam, 206 Pa.Super. 743, 213 A.2d 389 (1965) (no offense made out where defendant's nudity was in a private trailer and prosecution witness had to observe through small, louvered window); Commonwealth v. Alessi, 29 Erie 172 (Q.S.1947) (masturbation in a private home but before large window facing public street).
Williams, 574 A.2d at 1163 (quoting Commonwealth v. Allsup, 481 Pa. 313, 392 A.2d 1309, 1312 (1978)).
. The District Court noted that state laws similar to § 5901 have been construed similarly:
For instance, the Massachusetts Supreme Judicial Court recently held that a man violated Massachusetts' open lewdness statute when, clad in thong underwear, he lowered his pants and exposed his buttocks to four teenagers. See Commonwealth v. Quinn, 439 Mass. 492, 789 N.E.2d 138 (2003). Quinn contended that he did not violate the statute because he had kept his genitals covered. Id. at 493, 789 N.E.2d 138. Like § 5901, the Massachusetts statute included no definition of ''lewdness,” and derived from the common law. Id. at 493-95, 789 N.E.2d 138. The Quinn Court reviewed analogous case law from Florida, Michigan, Minnesota, Nevada, Vermont, Virginia, and West Virginia, and found that none of those decisions "cabin[ed] the offensive conduct to the intentional exposure of genitals.” Id. Accordingly, the Supreme Judicial Court held that Quinn's deliberate exposure of his buttocks was a “lewd” act under Massachusetts law.
Egolf, 421 F.Supp.2d at 865-66.
. Again, the statute reads: "[a] person commits a misdemeanor of the third degree if he does any lewd act which he knows is likely to be observed by others who would be affronted oralarmed.” 18 Pa.C.S.A. § 5901.
. To the extent that the Plaintiffs intend this argument to be a facial challenge to the statute, I do not address it as such because I have concluded that the statute is content-neutral.
. Importantly, the record makes clear that tire Plaintiffs’ political expression was not restricted becattse of the content of the message they conveyed. See Texas v. Johnson, 491 U.S. 397, 412, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). The record shows that the crowd included many other protesters, none of whom were arrested. Further, the Troopers did not arrest one individual who participated in the pyramid who "quickly dressed.” Egolf v. Witmer, 421 F.Supp.2d 858, 862 (E.D.Pa.2006) (citing Pl. Mem. at 11).
. The Miller test is, in full:
The basic guidelines for the trier of fact must be: (a) whether "the average person, applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) (internal citations omitted).