Concurring and Dissenting Opinion
by Judge FRIEDMAN.I respectfully concur and dissent. I agree with the majority that: (1) the receipt of -written notice of condemnation by the owner of the New Garden Theatre, Inc. (New Garden Theatre) triggered a duty to file preliminary objections, (majority op. at 1092); (2) under federal law, the condemnation is not subject to strict scrutiny as a content-based restriction on free speech rights under the First Amendment, (majority op. at 1095); and (3) the condemnation satisfies the four-prong intermediate scrutiny test set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), (majority op. at 1096). Despite my agreement on these issues, I disagree with the majority that: (1) the U.S. Supreme Court’s decision in Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), is applicable here, (majority op. at 1093-94); and (2) the condemnation does not violate the right to free expression guaranteed by Article I, Section 7 of the Pennsylvania Constitution, (majority op. at 1097-98).
On May 9, 1997, the Urban Redevelopment Authority of Pittsburgh (URA) filed a declaration of taking to acquire title to the New Garden Theatre, an “adult” movie theater located in a blighted area designated the Federal North Redevelopment Area No. 51 (Redevelopment Area). The URA took the Garden Theater by eminent domain under the Urban Redevelopment Law1 because the presence of an “adult” movie theater added to the negative image of the Redevelopment Area. (Trial court op. at 3.) Instead of showing “adult” movies at the New Garden Theatre, the URA planned to use the theater for presentations of the performing arts, for special events and for the showing of “non-adult” films.
New Garden Realty Corporation (New Garden Realty), which owns the theater, filed objections to the taking, which the trial court overruled. The matter is now on appeal to this court.
I. Applicability of Arcara
Although the trial court found it unnecessary to decide whether the U.S. Supreme Court’s decision in Arcara is applicable here, (see trial court op. at 24), the majority affirms the trial court’s decision based on Arcara. For the following reasons, I conclude that Arcara does not apply here.
In Arcara a state public health law provided for closure of any building found to be a public health nuisance, which is defined in the law to include a place of prostitution and lewdness. When a law enforcement officer observed instances of prostitution and lewd activity at an “adult” bookstore, a civil complaint was filed against the bookstore seeking its closure under the public health law. The bookstore owner argued that the closure would interfere with the First Amendment right to sell “adult” books. The U.S. Supreme Court rejected that argument, holding that the First Amendment is not implicated by the enforcement of a public health law of general application against a store which *1099happens to sell books. Arcara. The Court explained that the public health law was directed at “unlawful activity” having nothing to do with the books and that the First Amendment could not be used as a “cloak for obviously unlawful public sexual conduct.” Id. at 705, 707, 106 S.Ct. 3172.
Here, the URA did not take the New Garden Theatre by eminent domain under the Urban Redevelopment Law because it was a place of unlawful activity and, thus, constituted a public nuisance.2 The URA took the New Garden Theatre only because the theater’s lawful showing of “adult” movies added to the negative image of the Redevelopment Area. Because the Urban Redevelopment Law, as applied in this case, is not directed at general unlawful activity that constitutes a public nuisance but, rather, is specifically directed at the “adult” movie theater and its secondary effects on the neighborhood, Ar-cara simply does not apply.3
II. Article I, Section 7
Although the trial court did not consider whether the URA’s taking of the New Garden Theatre violated the right to free expression guaranteed by Article I, Section 7 of the Pennsylvania Constitution, the majority affirms the trial court’s decision based on Article I, Section 7. Unlike the majority, I conclude that Article I, Section 7 requires reversal of the trial court’s decision.
Article I, Section 7 of the Pennsylvania Constitution provides: “The free communication of thoughts and opinions is one of the invaluable rights of [people], and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty.” Pa. Const., Art. I, § 7. This guarantee is broader than the guarantee of free speech in the First Amendment. Pap’s AM. v. City of Erie, 571 Pa. 375, 812 A.2d 591 (2002) {Pap’s II). In fact, during its long legal history, Pennsylvania has forged its own path, independent of the federal government, in analyzing issues involving free expression. See id.
In considering Article I, Section 7 in this case, the first question is whether the URA’s taking of the New Garden Theatre is content-based, i.e., based on the theater’s showing of “adult” films, or whether the taking is content-neutral. Id. To make this determination, it is necessary to examine both the stated and the unmentioned purposes of the taking. Id. Where the stated purpose of a government action is inextricably bound up with the suppression of protected expression, the government action is content-based. Id.
Here, the URA took the New Garden Theatre because the presence of an “adult” theater added to the negative image of the Redevelopment Area. Thus, an unmentioned purpose of the taking was to eliminate the showing of “adult” movies in the Redevelopment Area. As indicated above, *1100the URA planned to continue showing films at the New Garden Theatre, but not “adult” films. Of course, this means that the URA’s stated purpose for taking the New Garden Theatre is inextricably bound up with the suppression of protected expression, making the URA’s action content-based.
Because the URA’s taking of the New Garden Theatre was content-based, it is subject to strict scrutiny under Pennsylvania law. Id. To pass the strict scrutiny test, a government entity must show that its action is narrowly drawn to accomplish a compelling governmental interest. See Pap’s A.M. v. City of Erie, 553 Pa. 348, 719 A.2d 273 (1998) (Pap’s I). If the government entity can achieve its goal by less restrictive means, the government’s burden on protected expression is not constitutional. Pap’s II.
After considering the facts before us here, I conclude that the URA failed to prove it had a compelling interest in taking the New Garden Theatre. The URA’s interest in taking the New Garden Theatre was to improve the negative image of the Redevelopment Area. However, the facts are these: (1) the Redevelopment Area had been in decline and in need of renewal since the late 1960’s; (2) the New Garden Theatre has shown “adult” films since the 1970’s;4 (3) the redevelopment process did not begin until 1989; and (4) the URA’s declaration of taking was not filed until 1997. Certainly, if the government had a compelling interest in improving the decades-old negative image of the Redevelopment Area, the government would have been compelled to take action before 1997. Absent a compelling government interest, the URA’s taking of the New Garden The-atre fails the strict scrutiny test.
Even if I were to conclude that improving a neighborhood’s image is a compelling government interest, I would not conclude that the URA’s taking of the New Garden Theatre was the least restrictive means of accomplishing that purpose. For example, it is apparent that the URA’s plans for the other properties taken in the Redevelopment Area will improve the negative image of the Redevelopment Area without burdening free expression. Moreover, if the Redevelopment Area needs a different kind of theater to stimulate the renewal of the neighborhood, the URA can support the construction of such a theater elsewhere in the area.5 Considering that there are less restrictive means to accomplish the URA’s goal which do not suppress protected expression, I would conclude that the URA’s taking of the New Garden Theatre fails the strict scrutiny test for that reason.
Because I believe that the URA’s taking of the New Garden Theatre violates the right to free expression guaranteed by Article I, Section 7 of the Pennsylvania Constitution, I would reverse.
. Act of May 24, 1945, P.L. 991, as amended, 35 P.S. §§ 1701-1719.2.
. I note that section 12.1(c)(1) of the Urban Redevelopment Law, 35 P.S. § 1712.1(c)(1), defines blighted property to include any premises which, because of its use, is a public nuisance at common law. However, our supreme court has held that showing "adult" movies does not constitute a public nuisance at common law. Commonwealth v. MacDonald, 464 Pa. 435, 347 A.2d 290 (1975). Therefore, as a matter of law, the New Garden Theatre’s showing of "adult” films does not constitute a public nuisance.
. In her concurring opinion, Justice O’Con-nor, joined by Justice Stevens, stated that if a city were to close an "adult” bookstore "because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns...." Arcara, 478 U.S. at 708, 106 S.Ct. 3172 (O’Connor, J., concurring).
. Given the fact that the area was blighted in the 1960’s, it is apparent that the showing of "adult” films in the neighborhood did not cause the area’s blight.
. Perhaps New Garden Realty will decide to change its use of the New Garden Theatre to accommodate a different clientele after redevelopment is complete.