concurring in part and dissenting in part:
¶ 109 I respectfully dissent.
¶ 110 The Utah Constitution guarantees the citizens of Utah “the inherent and inalienable right ... to communicate freely their thoughts and opinions, being responsible for the abuse of that right.” Utah Const, art. I, § 1. The proper interpretation of this provision requires that the nude dancing at issue in this appeal be acknowledged as protected communication as a matter of plain meaning. Furthermore, I do not believe that nude dancing performed in private establishments for paying customers constitutes an abuse of the right of free communication. Finally, I find the justifications for the restriction proffered by South Salt Lake both unpersuasive and not in furtherance of a legitimate legislative interest. Accordingly, I would hold the South Salt Lake ordinance to be an unconstitutional restriction of protected speech.
I. THE SOUTH SALT LAKE ORDINANCE UNCONSTITUTIONALLY RESTRICTS THE RIGHT OF FREE SPEECH GUARANTEED BY THE UTAH CONSTITUTION
¶ 111 The dispute in this case centers on the constitutionality of an ordinance, passed by South Salt Lake (the “Ordinance”), that completely prohibits dancers in private sexually oriented establishments from dancing naked in front of paying customers.1 South Salt Lake City Mun.Code § 5.56.310 (2005). According to plaintiffs, the Ordinance vio*1265lates their right of free' speech under the Utah Constitution.2 The resolution of this issue, and source of my disagreement with both the majority and the concurring opinions, hinges on the proper interpretation of the relevant portions of the Utah Constitution.3
¶ 112 The Utah Constitution guarantees its citizens “the inherent and inalienable right ... to communicate freely their thoughts and opinions, being responsible for the abuse of that right.”4 Utah Const. art. I, § 1. In addition, article I, section 15 provides that “[n]o law shall be passed to abridge or restrain the freedom of speech or of the press.”5 Utah Const. art. I, § 15. The task set for this court is to interpret these complementary provisions to determine whether the Ordinance is constitutional. This .task requires that we answer two related questions. First, we must determine whether nude dancing is communication that is protected under the liberty and responsibility clause.6 If we answer this question in the negative, our inquiry is at an end. However, if we determine that nude dancing is protected communication, we must proceed to the second inquiry: whether South Salt Lake’s proffered justifications for the Ordinance are appropriate and whether the Ordinance is “reasonably necessary to further ... a legitimate legislative purpose.” Gallivan v. Walker, 2002 UT 89, ¶ 42, 54 P.3d 1069.
¶ 113 As these questions deal with the interpretation of the Utah Constitution, their resolution is purely a matter of state law. Federal decisions may provide guidance, however, as we have previously stated that “federal rulings set the floor for federal constitutional protections which we must respect in interpreting the scope of our own constitution’s provisions.” Soc’y of Separationists v. Whitehead, 870 P.2d 916, 940 (Utah 1993). With respect to nude dancing, the United States Supreme Court has held that such expression “falls only within the outer ambit of the First Amendment’s protection” under the federal Constitution. City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion). *1266However, the Utah Constitution, properly interpreted, may provide more protection for free expression and communication rights than the federal Constitution.7 See Prune-Yard Shopping Ctr. v. Robins, 447 U.S. 74, 81, 100 S.Ct. 2035, 64 L.Ed.2d 741 (1980). In addition, the decisions of the United States Supreme Court in this area are largely fractured and confusing. Accordingly, I find it appropriate to exercise caution regarding the application of federal decisions; my inquiry here focuses on the pertinent provisions of the Utah Constitution.8
A. Nude Dancing Is Protected Communication under the Plain Language of the Utah Constitution
¶ 114 Our initial task requires that we determine whether nude dancing is constitutionally protected communication. Under the Utah Constitution, citizens have the “inherent and inalienable right ... to communicate freely their thoughts and opinions, being responsible for the abuse of that right.” Utah Const. art. I, § 1. I agree with the majority that this clause (the liberty and responsibility clause) should bé read in conjunction with the governmental restriction clause, which states: “No law shall be passed to abridge or restrain the freedom of speech or of the press.” Utah Const. art. I, § 15. I also agree with the majority that section 1 defines the free speech right, while section 15 restricts governmental action regarding the rights contained in section 1. Supra ¶ 17.
¶ 115 Because the liberty and responsibility clause defines the nature of free speech rights under the Utah Constitution, I begin my analysis with that clause. In interpreting the Utah Constitution, the starting point should always be the plain meaning of the textual language. State v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218; Grand County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148. Only if the textual language is ambiguous or unclear should we look outside the words to external sources. State v. Casey, 2002 UT 29, ¶ 20, 44 P.3d 756; Univ. of Utah v. Bd. of Exam’rs, 4 Utah 2d 408, 295 P.2d 348, 361-62 (1956). As Justice Marshall famously stated, “we must never forget, that it is a constitution we • are expounding.” McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 407, 4 L.Ed. 579 (1819).
¶ 116 The plain language of the Utah Constitution clearly protects the right to freely communicate. Utah Const. art. I, § 1. The right is expressed in broad, sweeping, and comprehensive terms, with no qualifications placed on the forum, method, or medium of communication.9 While the Utah Constitu*1267tion does not define “communicate,” it is beyond dispute that the act of communicating extends beyond mere words to encompass a wide variety of expressive activity. See, e.g., Webster’s II New College Dictionary 227 (1995) (defining “communicate” as “an interchange, as of ideas or information”). In 'my view, resorting to outside sources is unnecessary to interpret this portion of the Utah Constitution. See Casey, 2002 UT 29, ¶ 20, 44 P.3d 756. In contrast to the United States Constitution, the Utah Constitution itself describes and defines the nature of its free speech right.10 Therefore, the relevant threshold question is whether nude dancing is communicative; if so, it is protected by the plain text of the Utah Constitution unless it is an “abuse of that right.” Utah Const. art. I, § 1.
¶ 117 With this framework in mind, I now address whether nude dancing is communicative in nature. In considering this question, I first inquire whether dance in general is a form of expressive activity that is entitled to constitutional protection. If it is, the inquiry then becomes whether dancing done without clothing likewise imparts a particular message that is stifled when nudity is banned.
¶ 118 Dance in general clearly falls within the category of communication and expression protected by the Utah Constitution. “Dance as [ejntertainment is one of the earliest forms of expression known to man.” Miller v. Civil City of S. Bend, 904 F.2d 1081, 1085 (7th Cir.1990), rev’d sub nom. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (split decision). Dance is generally performed for purposes of entertainment, or aesthetic pleasure and appreciation much like music, painting, theater, literature, and sculpture. These forms of entertainment have long been regarded as forms of expressive-speech, conveying thoughts, feelings, and ideas.11 See, e.g., id. (describing dance as “ ‘the art of moving-the body in a rhythmical way, usually to music, to express an emotion or idea, to narrate a story, or simply to take delight in the movement itself ” (quoting 16 The New Encyclopedia Brittanica 935 (1989))); see also City of Wichita v. Wallace, 246 Kan. 253, 788 P.2d 270, 275 (1990) (defining dance as “rhythmic movement ... executed by different parts of the body in accordance with temperament, artistic precepts, and purpose” (internal quotation marks omitted)). In Miller, the court stated that dance is in its very essence “the communication of expression,” and declined to impose an additional requirement that a dance tell a story or appeal to the intellect in order to receive protection. 904 F.2d at 1086. Therefore, dance in general clearly qualifies as a “eommunicat[ion] ... [of] thoughts and opinions,” entitled to protection under the plain language of the Utah Constitution. Utah Const. art. I, § 1.
¶ 119 Communicative erotic and nude dancing have equally deep historical roots. In Miller, Judge Posner noted that “[p]ublic performances of erotic dances debuted in Western culture in the satyr plays of the ancient Greeks ... and ... reappeared in the late nineteenth and early twentieth centuries.” 904 F.2d at 1089 (Posner, J., concurring). Modern variations on this dance form include “the can-can and the music-hall chorus line, from which the Folies Bergere and its tame American counterparts — the Zieg-field Follies, and more recently the Radio City Music Hall Rockettes and the chorus lines in Broadway and Hollywood musicals— descend.” Id. Judge Posner also links the *1268“Dance of the Seven Veils” in Strauss’s Salome, mentioned but not analyzed by the majority, to “the fan dancing of Sally Rand and the decorous striptease of Gypsy Rose Lee, or of Gwen Verdón in the musical comedy Damn Yankees.” Id.
¶ 120 Even modern ballet includes an erotic element, as costumes “became scantier, ... reaching scandalous proportions in Diaghilev’s L’apres midi d’un faune” in 1912. Id. at 1090. Indeed, eroticism has even become “a staple of distinguished companies like the New York City Ballet and the American Ballet Theater.” Id. Moreover, “ ‘[mjodern dance,’ a ballet offshoot pioneered by, among others, the erotic dancer Isadora Duncan, has long been partial to nudity.”12 Id. Indeed, contemporary dance companies, including the world-renowned Pi-lobolus Dance Company, see http://www.pilo-bolus.com, and the Stephen Brown Dance Company, see http://www.sbdance.com, have performed in Utah using naked or near-naked performers.
¶ 121 It is beyond debate that the musicals, ballet, and modern dance described above, which often include nude and erotic dancing, are communicative. The dancers in such performances are engaged in an expressive exhibition, the point of which is to entertain the audience; this conduct conveys a variety of messages. Accordingly, such forms of nude and erotic dancing are also communication under the plain language of the Utah Constitution. Utah Const, art. I, § 1. Thus, we come to the question whether the nude dancing at issue in this case, performed at sexually oriented businesses for paying customers, is likewise communicative in nature.
¶ 122 Nude dancing performed at sexually oriented establishments is conceptually indistinguishable from nude dancing performed in musicals, ballet, or modern dance, and therefore is communication within the meaning of the Utah Constitution. Concluding otherwise is to disregard what it is that nude dancing communicates. Like in all commercial dance performances, the nude dancing at issue in this case is performed for entertainment purposes to paying customers. As with the other forms of dance described above, a nude dancer communicates a message to her audience through her movements and appearance. The message of the nude dancing at issue is presumably one of sexuality. Much as the expressive nature of modern dance or ballet would be muted if the dancers were required to wear every-day clothing, the message of the nude dancing at issue is distorted or diminished by banning nudity. In other words, these dancers are simply not able to communicate their message as effectively when they are clothed, however scantily-
¶ 123 The sexual nature of the message conveyed by this particular form of dance is clearly offensive to many. Indeed, a scientific poll is unnecessary to state the obvious — a majority of citizens in this state and this nation disapprove of this form of expression, both because of its explicit messages about sexuality and because of its frequent use and portrayal of women’s bodies to communicate those messages. See, e.g., Catherine A. Mac-Kinnon, Only Words 71-107 (1993) (proposing that pornography perpetuates inequality between the sexes and harms women). However, the mere fact that nude dancing is offensive or that many people may consider it “low” entertainment does not change the fact that it does communicate a message.13 To *1269hold that nude dancing in sexually oriented establishments is not communicative while nudity in modern dance or ballet is amounts to class and aesthetic elitism.14 Deciding which forms of expression are of sufficient artistic quality to warrant protection is a particularly difficult and undemocratic task and would be an abuse of judicial authority. Moreover, the mere fact that a message may be of low quality or offensive to some does not change the fact that there is a message and that nude dancing is therefore communicative activity. Though the United States Supreme Court has held that nude dancing such as that at issue in this case “falls only within the outer ambit of the First Amendment’s protection,” it has consistently held that “nude dancing ... is expressive conduct.” City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (emphasis added); see also Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion). If nude dancing is expressive conduct under the federal Constitution, then it is certainly communicative conduct under the broader definition contained in the plain language of the Utah Constitution. If this form of expression is to be restrained, the restriction must be based on something other than simply declaring that nude dancing is not communication.15
¶ 124 The plain text of the Utah Constitution also indicates that the right to freely communicate is constrained by the caveat that Utah’s citizens are “responsible for the abuse of that right.” ' Utah Const, art. I, § 1. Thus, I must also consider whether nude dancing is an “abuse of that right.” Id. In contrast to the first part of the liberty and responsibility clause, this section does not suggest a definition. The plain meaning is not apparent, for on the face of the text anything could be an “abuse of that right.” Id. Accordingly, it is necessary to move beyond the text to understand the meaning of this language. See, e.g., Casey, 2002 UT 29, ¶20, 44 P.3d 756 (noting the necessity of external aids when textual language is ambiguous).
¶ 125 The best indication of the meaning of “abuse of that right” is actually found within the text of another clause in the Utah Constitution. In West v. Thomson Newspapers, 872 P.2d 999,1015 (Utah 1994), we noted that in interpreting free speech rights in Utah, article I, section 1 should be read in conjunction with article I, section 15. Section 15 provides that criminal libel is an abuse of the right of free communication, even when the statement is true, unless “published with *1270good motives, and for justifiable ends.”16 Utah Const. art. I, § 15. As noted by the majority, this section contains “[t]he only textual evidence” of what “abuse of that right” means. Supra ¶ 27 (emphasis added). The majority gives an extensive summary of the debate regarding this clause at the constitutional convention. Supra ¶¶ 42-48. The gist of this debate, according to the majority, is that the framers clearly intended to circumscribe the right of free communication by preserving libel doctrine as an exception. Supra ¶¶ 42-48. While I disagree with the leaps in logic the majority makes from this debate,17 the debates certainly demonstrate that the criminal libel clause was intended to function as a limitation on free speech rights, the only limitation apparent from the text of the Utah Constitution.
¶ 126 In West, we also found that historical evidence indicates the “abuse of that right” language “was intended to preserve liability for defamation.” 872 P.2d at 1015. There, we stated that while defamation actions were preserved, such actions are limited by the governmental restriction clause. Id. Reading the liberty and responsibility clause and the governmental restriction clause together, we concluded that free expression “is ‘abused’ when the opinion states or implies facts that are false or defamatory.” Id.
¶ 127 The exceptions for defamation and criminal libel provide the only clear indication of what the framers intended by an “abuse of that right.”18 Utah Const. art. I, § 1. However, unlike my colleagues, I do not believe that the nude dancing at issue in this case can be held to be an abuse of the right of free communication based on these clear exceptions. This conclusion, in my view, is clearly counter to the plain text of the Utah Constitution and the expressed intent of the framers. The framers considered the rights enumerated in the Utah Constitution to be fundamental. 1 Official Report of the Proceedings and Debates of the Convention 200 (Salt Lake City, Star Printing Co. 1898). The plain text indicates that the fundamental right of free communication is constrained only by abuses of that right. Utah Const. art. I, § 1. Therefore, great caution must be taken when construing “abuse of that right,” id., to avoid intruding on a fundamental right. Given that the only clear indication of the framers’ intent regarding this language is that it apply in a defamation or criminal libel context, I do not believe it proper to extend it by inference and speculation to other forms of communication — particularly under the facts of this case.
¶ 128 I also consider the “abuse of that right” language inapplicable to nude dancing in a private club for a more common sense reason. Defamation and criminal libel doctrine are both premised on the potential for speech or expression that causes harm. See, e.g., Cox v. Hatch, 761 P.2d 556, 561 (Utah 1988) (stating that a defamatory communication is one that “impeachfes] an individual’s honesty, integrity, virtue, or reputation or publish[es] his or her natural defects or expose[s] him or her to public hatred, contempt, or ridicule”). If this court is to go beyond the only constitutionally explicit exceptions to the fundamental right of free communication, this is not the proper case to do it. The nude dancing at issue here, which is performed for paying customers in private, sexually oriented establishments, simply cannot be compared to defamation or criminal libel; there is no indication that this commu-*1271nieation is in any way harmful.19 One can certainly anticipate circumstances in which such conduct could be considered harmful. For example, the fundamental right of free communication does not give a dancer the right to communicate a message of sexuality by performing at the corner of a busy intersection. Not only could such conduct be considered harmful, but there are clearly legitimate state interests which justify regulating such speech. However, the facts before this court do not present any legitimate basis for this court to conclude that the nude dancing at issue here is an abuse of the right of free communication.
¶ 129 Before addressing the second question, whether the Ordinance is justified and is necessary to further legitimate state interests, I believe it necessary to address the interpretive methods used by the majority and the concurrence. In my opinion, neither the majority nor the concurrence gives nearly enough respect to the plain text of the Utah Constitution, resulting in undue restrictions of the fundamental rights at issue here. While both opinions claim to be premised on the text, supra ¶¶ 16, 87, the reality is that both do no more than pay lip service to plain meaning interpretation.20 The result both reach is instead premised on the statutory and common law as it existed at the time the Utah Constitution was adopted. I believe that this approach is inappropriate in this case, for the reasons discussed below.
¶ 130 First, as I have discussed, it is unnecessary . to go outside the constitutional text in order to determine whether the conduct at issue is communicative. As discussed supra at paragraphs 114^16, the language of the Utah Constitution is broader than that of the federal Constitution arid provides a clear definition of free speech. This definition indicates that the free speech right is one of free communication. Therefore, it is not necessary to consult the framers in order to arrive at the proper definition of free speech. Under the definition provided in the text, the first question should always be whether the conduct at issue is communicative. The law as it existed in 1896 is unhelpful and in fact irrelevant to the question of whether nude dancing is communicative in nature, and therefore has no application to this initial question. The question is not whether the framers would have considered the conduct communicative; if it is communicative, that is enough.21
¶ 131 Second, I find the methods employed by the majority to be of questionable reliability with respect to the question of whether nude dancing is an abuse of the right of free communication. While the majority admits that the liberty and responsibility clause was not debated at the constitutional convention, it makes much .of the debates regarding the criminal libel clause; the concurrence apparently agrees with this approach. Supra ¶¶ 42^48, 108., The majority emphasizes the framers’ reliance on the common law during the debates regarding the criminal libel clause. Supra ¶ 48. From this reliance, the majority concludes that the framers “saw the common law as establishing the boundaries of the freedom of speech,” supra ¶ 48, .and *1272that we must likewise rely on the common law “in order to discern the outer limits of the freedom of speech,” supra ¶ 49. Much of the remainder of the majority’s opinion, also adopted by the concurrence, is taken up with an examination of the statutory and common law existing at the time the Utah Constitution was adopted. Supra ¶¶ 49-58.
¶ 132 Such extrapolation is a remarkably unreliable method of interpreting the liberty and responsibility clause. It is true that we have, at times, looked to the common law to help interpret a constitutional provision. See, e.g., West, 872 P.2d at 1013 n. 24 (“When construing a constitutional provision, a court may consult common law principles.”). However, the majority takes the framers’ reliance on the common law in debating the proper content of the criminal libel clause, and assumes that the framers viewed the common law as setting the parameters of free speech rights generally. Supra ¶ 49. Such an extrapolation of the specific to the general is simply wrong. The criminal libel clause functions only as a specifically defined exception to free speech rights,22 not as the outer boundaries of the right of free speech itself. That the framers relied on the common law in debating this very specific exception does not indicate that all free speech rights should likewise be defined by the common law. The majority’s assumption is particularly disturbing because the unambiguous text itself provides the only definition of free speech rights, a definition that is very broad. Utah Const. art. I, § 1. Nor does such reliance indicate that the framers intended the then-existing law to establish all abuses of the right of free communication. It would certainly have been a simple task for the framers to note that it was an “abuse of that right” to violate all then-existing restrictions on communication. Id. This the framers did not do. Rather, the only clear indications of the framers’ view of “abuse of that right” demonstrate that the phrase applies to defamation and criminal libel. Absent clearer evidence than the mere state of the law in 1896, I find it inappropriate to read the entire law then existing into the Utah Constitution.
¶ 133 Furthermore, I believe that the point of relying on history and the common law in interpreting our constitution is to inform our result, not dictate it. Such an approach is meant to provide background to the pertinent constitutional provision, but should not define it unless there are clear indicia that this is what was intended. I trust that this court would be loathe to allow the common and statutory law existing in 1896 to dictate our interpretation of the Utah Constitution in other situations. For example, article IV, section 1 guarantees that “[bjoth male and female citizens of this State shall enjoy equally all civil, political and religious rights and privileges.” Utah Const. art. IV, § 1. Yet, at the time of the Utah Constitution’s adoption, women were prohibited from serving as jurors. Laws of Utah ch. 52, § 1 (1896). However, I do not believe that this court would interpret the constitution to allow such discrimination, tolerable in 1896, to exist today. Likewise, as the majority notes, supra ¶ 55, around the time our constitution was enacted women were prohibited from earning money by dancing in public at all— clothed or naked. Utah Rev. Stat. § 4244 (1898). Were South Salt Lake to enact an ordinance to this effect today, I do not believe that the Utah Constitution could be interpreted to allow such a severe restriction on communicative activity.
*1273¶ 134 The concurrence goes to great lengths to establish the superiority of a “textual” approach to constitutional interpretation, supra ¶¶ 83-86, noting that it is “dangerous” to engage in subjective decision-making, for “a determined and creative judge can expand the term ‘speech’ or ‘communicate’ to include virtually any aspect of human conduct,” supra ¶ 81. However, the approach adopted by both the majority and the concurrence is no less dangerous, for it allows a judge to restrict the meaning of constitutional text to only the law existing at the time of enactment.23 This method of interpretation is uniquely suited for turning prejudices into constitutional doctrine, a lesson the United States Supreme Court has learned when using similar interpretive techniques.
¶ 135 For example, in Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 15 L.Ed. 691 (1857), the Court confronted the inherent conflict between the equality stated in the text of the Constitution and the practice of slavery. Ignoring the text, the Court upheld slavery based on the law existing at the time of the Constitution’s adoption. Id. at 404-12. Similarly, in Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896), the Court upheld “separate but equal” facilities, despite the Fourteenth Amendment’s clear language of equality, because the practice was condoned at the time of the Amendment’s adoption. Id. at 544-49, 16 S.Ct. 1138. Yet the Court has long since rejected the notion that practices accepted at the time these provisions were adopted dictate the meaning of the constitutional text.24 See, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 495-96, 74 S.Ct. 686, 98 L.Ed. 873 (1954) (overruling Plessy).
¶ 136 The lesson from these cases is equally pertinent here. To hold that the free speech provisions of the Utah Constitution mean only what they did in 1896 risks the creation of constitutional doctrine that eviscerates the fundamental right to “freely communicate.” Utah Const. art. I, § 1. The concurrence argues that “it seems an unassailable conclusion” that the framers did not contemplate the free speech right as including nude dancing. Supra ¶ 108. Yet, the concurrence also concedes that “the intent of those who drafted our constitution is difficult to discern.” Supra ¶ 85. This is certainly true with regard to the liberty and responsibility clause. There is simply no indication of the framers’ intent save the plain language of the free speech definition and the two exceptions discussed above. To read any other restriction on this fundamental right into the constitution is pure speculation, always a dangerous task.
¶ 137 Moreover, this court should not substitute contradictory then-existing law for the drafters’ own clear statement of higher governing principles. Writing for the ages makes it particularly difficult — if not impossible — to enact constitutional principles founded on prejudice or inequality. This is certainly true with regard to the Utah Constitution, for despite contradictory then-existing law, the framers drafted a clear, expansive definition of free speech. If we are to respect the text of their choosing, as both the majority and the concurrence suggest we should, we should not allow inconsistent and contradictory law from 1896 to trump the *1274principles actually adopted by the framers. Frederick Douglass explained this principle well in his landmark speech delivered in Glasgow, Scotland, on March 26, 1860. In that speech, Douglass stated:
[I]t should be borne in mind that the mere text, and only the text, and not any commentaries or creeds written by those who wished to give the text a meaning apart from its plain reading, was adopted as the Constitution of the United States.... [T]he intentions of [the Framers], be they good or bad, for slavery or against slavery, are to be respected so far, and so far only, as will find those intentions plainly stated in the Constitution. It would be the wildest of absurdities, and lead to endless confusion and mischiefs, if, instead of looking to the written paper itself, for its meaning, it were attempted to make us search it out, in the secret motives, and dishonest intentions, of some of the men who took part in writing it. It was what they said that was adopted by the people, not what they were afraid or ashamed to say, and really omitted to say.
2 Life and Writings of Frederick Douglass 467-80 (Philip S. Foner ed., 1950), quoted in Paul Brest & Sanford Levinson, Processes of Constitutional Decisionmaking: Cases and Materials 207 (3d ed., 1992) (emphasis added). I believe that Douglass’ reasoning is applicable here. The bottom line is that our constitution clearly and unambiguously protects the right to freely communicate, even if the message communicated is offensive.
¶ 138 The Oregon Supreme Court recently decided a strikingly analogous free expression case under its state constitution, which is similar to Utah’s. There, the court considered a statute that made it a crime to “ ‘direct, manage, finance, or present’ a ‘live public show' in which the participants engage in sexual conduct.” State v. Ciancanelli, 339 Or. 282, 121 P.3d 613, 614-15 (2005) (quoting Or.Rev.Stat. § 167.062). Presented with the same argument made in this case by the majority and the concurrence, the court found the statute facially unconstitutional, stating:
[T]he words [of the Oregon Constitution] are so clear and sweeping that we think that we would not be keeping faith with the framers who wrote them if we were to qualify or water them down, unless the historical record demonstrated clearly that the framers meant something other than what they said.... [W]e have found no such demonstration. Thus, it appears to us beyond reasonable dispute that the protection extends to the kinds of expression that a majority of citizens in many communities would dislike — profanity, blasphemy, pornography — and even to physical acts, such as nude dancing or other explicit sexual conduct, that have an expressive component.
Id. at 311, 121 P.3d 613.
¶ 139 Finally, the majority’s description of the history of free speech rights, supra ¶¶ 31-40, is similarly unpersuasive. The majority argues that, because the phrase “responsible for the abuse” has a “history of preserving the power of the state to regulate speech under certain historical exceptions,” the framers implicitly adopted these exceptions. Supra ¶40. The majority traces these historical exceptions back to Blackstone’s Commentaries, which stated that it was not a violation of free speech for the government to punish “ ‘blasphemous, immoral, treasonable, schismatical, seditious, or scandalous libels.’ ”25 Supra ¶ 32 (quoting William Blackstone, 4 Commentaries *151-53).
¶ 140 The majority’s reliance on Blackstone’s beliefs regarding free speech rights is misplaced. Blackstone’s view of the common law reflects English doctrine, which has been rejected in this country for centuries. For example, the First Amendment has long been understood to embody the privilege to criticize the government, a principle which is fundamental in a true democracy. See, e.g., Lee v. Weisman, 505 U.S. 577, 626, 112 S.Ct. *12752649, 120 L.Ed.2d 467 (1992) (“If the early Congress’s political actions [in passing the Aien and Sedition Acts] were determinative, and not merely relevant, evidence of constitutional meaning, we would have to gut our current First Amendment doctrine to make room for political censorship.”); Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 665-66, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989) (referring to seditious libel as “this universally renounced, and long-defunct, doctrine”); Ciancanelli, 121 P.3d at 624 n. 11 (“Blackstone believed that it was consistent with the common law notion of freedom of the press to punish even an entirely truthful attack on a public figure, because the sovereign could determine that such a publication would have an undesirable ‘tendency1 to disturb the public peace.” (citation omitted)). I do not believe that the Utah Constitution took the extraordinary step of silently reinventing politically motivated libel — or adopting other supposed “exceptions” — in the phrase “being responsible for the abuse of that right.” Utah Const. art. I, § 1. Again, there is no concrete support for the majority’s argument; the fact that the constitutional language is traceable to Blackstone is no indication that the framers adopted his views, particularly when those views were so out of harmony with American law and tradition.26 The history cited by the majority is simply not demonstrative of free speech rights under the Utah Constitution, particularly given the absolute lack of any indication the drafters relied on any such history.
B. The South Salt Lake Ordinance Is not Necessary to Further a Legitimate Legislative Interest
¶ 141 Because I conclude that nude dancing is protected communication under the Utah Constitution, I reach the question of whether the Ordinance unjustifiably burdens protected speech. The Utah Constitution states that “[n]o law shall be passed to abridge or restrain the freedom of speech.” Utah Const. art. I, § 15. However, freedom of speech is not an absolute right. Even when communicative conduct falls within the protections guaranteed by the Utah Constitution, regulatory action is permissible if it is properly justified. The issue thus becomes whether the restraint of free speech rights in this case is an unconstitutional restraint.
¶ 142 The determination of this issue turns on the proper standard of review. As an initial matter, legislative enactments are generally presumed constitutional, Greenwood v. City of N. Salt Lake, 817 P.2d 816, 819 (Utah 1991), unless a “significant constitutional right is claimed to have been abrogated by a statute,” Wood v. Univ. of Utah Med. Ctr., 2002 UT 134, ¶ 43, 67 P.3d 436 (Durham, C.J., dissenting). As discussed above, I believe the Ordinance clearly intrudes upon free speech rights in this case. Accordingly, the legislative presumption is inapplicable here.
¶ 143 When constitutional rights under article I are at issue, we have “consistently applied various forms of heightened review.” Wood, 2002 UT 134, ¶ 43, 67 P.3d 436 (Durham, C.J., dissenting). For example, in Condemarin v. University Hospital, 775 P.2d 348 (Utah 1989), we stated that heightened analysis requires a “real and thoughtful examination of legislative purpose and the relationship between the legislation and that purpose.” Id. at 356. Similarly, in Lee v. Gaufin, 867 P.2d 572 (Utah 1993), we stated that legislation intruding upon article I’s open courts clause is constitutional only if it “(1) is reasonable, (2) has more than a speculative tendency to further the legislative objective and, in fact, actually and substantially furthers a valid legislative purpose, and (3) is reasonably necessary to further a legitimate legislative goal.” Id. at 583. “In other words, in order for a discriminatory classification to be constitutional it must be reasonably necessary to further, and in fact must actually and substantially further, a legitimate legislative purpose.” Gallivan v. Walker, 2002 UT 89, ¶ 42, 54 P.3d 1069 (citing Lee, 867 P.2d at 582-83).
*1276¶ 144 Because the Ordinance restricts free speech under article I of the Utah Constitution, I would likewise subject it to heightened scrutiny.27 Under this standard, I believe that there are two questions of fundamental importance. First, whether the objectives proffered by South Salt Lake are legitimate. Second, whether the Ordinance is reasonably necessary to further a legitimate objective, and whether it actually does so. The burden with respect to these elements is on South Salt Lake.
¶ 145 South Salt Lake has specifically cited the promotion of “morals” as one of the purposes of the ordinance under review. In my view, nude dancing cannot legitimately be prohibited simply because a majority of South Salt Lake’s citizenry disapproves of the message being sent. As discussed supra at paragraph 123, I have no doubt that the message imparted by nude dancing is distasteful to many. However, expression. cannot be forbidden simply because it is unpopular. In the federal realm, it has long been the law that censorship may not be based on culturally relative senses of decency or public morals. See, e.g., Erznoznik v. City of Jacksonville, 422 U.S. 205, 210-11, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (striking down law prohibiting nudity in drive-in movie theaters). When expression is restricted on such grounds, the Court has held that citizens can “protect [their] own sensibilities ‘simply by averting [their] eyes.’ ” United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000) (quoting Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971)). This is certainly true with respect to the nude dancing at issue in this ease, which is viewed only by consenting, paying customers in private establishments. I believe that the censorship of nude dancing based on the fact that the message of sexuality is offensive to the morals of South Salt Lake is equally impermissible under the Utah Constitution. “The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.” Id. at 826, 120 S.Ct. 1878.
¶ 146 The other justifications offered by South Salt Lake in support of the Ordinance amount to a host of “deleterious secondary effects” that are alleged to result from nude dancing. Most prominently, these include high crime, property devaluation, the spread of sexually transmitted diseases, and urban blight. That the prevention of such secondary effects is a legitimate legislative interest seems beyond dispute. See, e.g., Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (discussing use of zoning ordinances to combat secondary effects of sexually oriented establishments). However, the relevant question is not whether South Salt Lake is entitled to prevent urban blight; it may clearly do so. The more important question is whether South Salt Lake has established that the Ordinance is necessary to prevent these supposed secondary effects, and whether the Ordinance actually does so. Gallivan, 2002 UT 89, ¶ 42, 54 P.3d 1069.
¶ 147 In considering this issue, I do not believe that South Salt Lake is required to prove a causal connection between the Ordinance and the harm that it seeks to prevent to the degree that would be required in a court of law- — such a burden of proof would unduly interfere with the responsibility of legislative bodies to govern even in the absence of clear scientific knowledge. However, South Salt Lake is still responsible for upholding constitutional values, including free speech rights. If South Salt Lake wishes to “abridge or restrain” free speech, Utah Const. art. I, § 15, it must establish that it has carefully considered and appropri*1277ately weighed the constitutionally protected rights at issue, and has crafted a remedy designed to invade them as little as possible while producing a real benefit.
¶ 148 On the record before us, it is impossible to meaningfully assess whether naked dancing in sexually oriented businesses is related to the “deleterious secondary effects” that South Salt Lake seeks to prevent through the ordinance under review. A close reading of the record reveals that South Salt Lake supports its position with (1) four minor convictions related to plaintiffs’ businesses — convictions reversed and remanded by the Utah Court of Appeals for possible due process violations due to lack of notice;28 (2) conelusory affidavits from city council members stating that they “had an opportunity to review and be familiar with the volume of materials provided by the City Staff in consideration of ordinance 2001-04 prior to the adoption of the ordinance”; and (3) studies from secondary sources. However, no evidence of actual secondary effects, let alone a causal link between such effects and the absence of pasties and G-strings, appears in the record.29 While South Salt Lake contends that “sexually oriented businesses require special supervision from the public safety agencies of the City in order to protect and preserve the health, safety, morals and welfare of the patrons of such businesses as well as the citizens of the City,” South Salt Lake City, Utah, Mun.Code § 5.56.310 (2005), it does not explain why a curtailment of expression is necessary in light of the utter lack of evidence of increased crime, decreased property values, or the spread of sexual diseases attributable to plaintiffs’ businesses.30
¶ 149 Furthermore, South Salt Lake’s reliance on secondary sources to justify the Ordinance is unpersuasive. These sources provide absolutely no indication that the Ordinance at issue is preventing any secondary effects because they do not demonstrate that such secondary effects even exist in South Salt Lake. Because the use of such sources is becoming increasingly prevalent in this type of litigation in light of recent federal decisions, I examine the federal cases briefly here.
¶ 150 While the United States Supreme Court has long held that secondary effects related to sexually oriented businesses justify time, place, and manner restrictions in the form of zoning ordinances, see Renton, 475 U.S. at 46-51, 106 S.Ct. 925, it recently expanded the secondary effects doctrine drastically. In City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (Pap’s I), the Court held that municipalities may rely on studies from other cities that have examined the secondary effects of adult entertainment businesses without having to conduct research in their own communities. Id. at 296, 120 S.Ct. 1382. With respect to the expansion of that doctrine in Pap’s I, it has been noted that
*1278[application of the secondary effects doctrine] absolve[s] municipalities of any responsibility to provide an evidentiary basis for their justifications. At the same time, it allows the most irrational remedial means to be coupled with those secondary effects — even if they are both far-fetched and unlikely to have any real impact. In combination, the Court has given municipalities carte blanche to create a secondary effects fiction on both ends of the spectrum — justification and means.
Christopher Thomas Leahy, Comment, The First Amendment Gone Awry: City of Erie v. Pap’s A.M., Ailing Analytical Structures, and the Suppression of Protected Expression, 150 U. Pa. L.Rev. 1021, 1074 (2002); see also Paul Bryant et al., Government Regular tion of “Adult” Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects, 6 Comm. L. & Pol’y 355, 389 (2001) (questioning applicability of secondary effects doctrine).
¶ 151 The holding of the Pap’s I Court does more than simply decrease the eviden-tiary burden for municipalities to restrict free expression. In that case, the Court also found the secondary effects doctrine justified a statute that required dancers to wear pasties and G-strings, just as the South Salt Lake Ordinance does. Pap’s I, 529 U.S. at 301-02, 120 S.Ct. 1382. Thus, the Court went far beyond mere zoning ordinances and allowed restriction of the expression actually occurring inside the businesses. Justice Stevens, joined by Justice Ginsburg, expressed strong criticism of the Court’s holding, opening his dissent with the statement:
Far more important than the question whether nude dancing is entitled to the protection of the First Amendment are the dramatic changes in legal doctrine that the Court endorses today. Until now, the “secondary effects” of commercial enterprises featuring indecent entertainment have justified only the regulation of their location. [N]ow ... such effects may justify the total suppression of protected speech.
Pap’s I, 529 U.S. at 317-18, 120 S.Ct. 1382 (Stevens, J., dissenting). After discussing a study performed by the city of Seattle which examined the effectiveness of zoning controls in minimizing the secondary effects of adult theaters, Justice Stevens stated that “if [Pap’s I] is relying on the Seattle study ..., its use of that study is most peculiar,” in that neither that study nor any other “suggests] that the adverse secondary effects of commercial enterprises featuring erotic dancing depends in the slightest on the precise costume warn [sic] by the performers — it merely assumes it to be so.”31 Id. at 321 n. 4,120 S.Ct. 1382 (emphasis added).
¶ 152 South Salt Lake likewise assumes that requiring dancers in sexually oriented establishments to wear pasties and G-strings will reduce these supposed “secondary effects.” This assumption seems to be premised on the hypocrisy engendered by the Pap’s I approach, based on the following admission by David Carlson, an attorney for South Salt Lake:
Studies have shown communities with such clubs have higher crime rates and the businesses often serve as fronts for prostitution and have a negative impact on property values, he said.
Carlson is not suggesting South Salt Lake has these problems. However, he said, the U.S. Supreme Court has ruled in previous cases that the city can rely on studies done elsewhere to mitigate such problems.
*1279Angie Welling, South S.L. to Cite Nude Clubs, Deseret News, June 22, 2002, at 133 (emphasis added). There is thus an apparent contradiction between what the city has said in the “Purpose” section of the Ordinance (the alleged “deleterious secondary effects” it seeks to control) and what its attorney is quoted as saying — that it seeks to “mitigate” effects it has not actually experienced. I believe this contradiction exists because the Pap’s I decision has sent the worst of mixed signals to municipalities across the country: Constitutionally protected expression is subject to meaningless and ineffective regulation, based only on the government’s articulation of the correct legal mantra. I see no reason to follow such an approach under the Utah Constitution.
¶ 153 In my view, the standard under the Utah Constitution requires South Salt Lake to support its total prohibition on nude dancing with more than secondary sources. South Salt Lake has utterly failed to demonstrate that any “deleterious secondary effects” are actually occurring as a result of nude dancing. Thus, it has failed to show that the Ordinance is even reasonably necessary to combat anything. Moreover, South Salt Lake has not established that requiring dancers in private sexually oriented establishments to wear pasties and G-strings actually prevents any of the problems the Ordinance is supposedly designed to remedy. Therefore, South Salt Lake has not met the second prong of the heightened scrutiny standard.
¶ 154 The result I reach is consistent with the decisions of other state courts that have considered this issue under similarly worded state constitutional provisions. For example, following remand, the Pennsylvania Supreme Court recently considered whether the ordinance analyzed by the Pap’s I Court violated thefree expression provisions of-its state constitution. Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 593 (2002) (Pap’s II). As with article I, section 1 of the Utah Constitution, the relevant section of Pennsylvania’s constitution specifically guarantees the right of “free communication of thoughts and opinions.” Pa. Const. art. 1, § 7. The ordinance at issue in Pap’s II was also strikingly similar, requiring the “dancers, at a minimum, to cover themselves with what are commonly known as ‘pasties’ and a ‘Gstring.’ ”32 Id. at 594. The Pap’s II court struck down the ordinance as an unconstitutional infringement of free speech protected by the Pennsylvania Constitution. Id. at 613. The court noted that “[i]t is hardly onerous to require that a regulation that would seek to govern such expression, offered in a closed establishment to consenting adult patrons, be accomplished by a narrower, less intrusive method than the total ban on expression adopted here.” Id. at 612.
¶ 155 , Similarly, the Massachusetts Supreme Court recently held that a local indecency statute banning nude dancing in a private business was unconstitutional under the free speech clause of the Massachusetts Constitution. Mendoza v. Licensing Bd. of Fall River, 444 Mass. 188, 827 N.E.2d 180, 189 (2005). The court held the statute unconstitutional when examined under either a strict or an intermediate level of scrutiny. Id. The court stated, “The ordinance ... completely prohibits a constitutionally protected form of expressive conduct within the city limits.... [It] is tantamount to censorship of such protected expression. No matter what the formulation of the test, such a complete ban is not ‘narrowly tailored,’ and is unconstitutional on that ground.” Id. Other state supreme courts have reached similar results when considering similar statutes.33
*1280¶ 156 In conclusion, I find that the Ordinance operates as a clear restriction of free speech rights protected by the Utah Constitution. South Salt Lake has not demonstrated the necessity of this restriction, nor has it shown that the Ordinance actually furthers any of its proffered objectives. Accordingly, I would strike down the Ordinance as an unconstitutional restriction of free expression.
. The effect of the Ordinance, according to plaintiffs, is to require that the dancers in such establishments perform wearing, at minimum, "pasties” on their breasts and underwear referred to as "G-strings.”
. Plaintiffs also argue that (1) they have suffered an unconstitutional taking at the hands of South Salt Lake because they had a property right in their previous licenses allowing nude dancing; (2) South Salt Lake was without authority to enact the Ordinance; and (3) plaintiff Reid's claims were improperly dismissed. Because I do not quarrel with the reasoning of the majority regarding these issues, supra ¶¶ 59-64, I do not address them here.
. While plaintiffs have directed us to little authority on this issue, as the majority notes, this is likely because little exists. Supra ¶ 7. In light of the important constitutional issues raised by this appeal, and the dearth of prior authority, I agree with my colleagues that it is appropriate for this court to fully address the parameters of the free speech rights protected by the Utah Constitution. However, this should not be taken as an invitation to future litigants to simply place issues before us without proper briefing in the hope that we will consider them. See, e.g., State v. Norris, 2001 UT 104, ¶ 28, 48 P.3d 872 (noting that we generally will not consider state constitutional claims that are inadequately briefed).
. The majority generally refers to this clause as the “liberty and responsibility clause.” Supra H 17. For the sake of clarity, I will do the same.
. Again, I shall refer to this clause as the "governmental restriction clause," as does the majority. Supra ¶ 7. Article I, section 15 also contains a clause pertaining to criminal libel, which the majority calls the "criminal libel clause.” Supra V 7. I agree with the majority that this clause is relevant in interpreting the liberty and responsibility clause, as it specifically denotes what the framers considered an "abuse of that right.” Supra ¶¶ 17-18. The interpretation of this portion of the liberty and responsibility clause is discussed further infra at paragraphs 124-28.
. My colleagues have chosen, I believe in error, to frame this initial issue differently. The majority asks "whether nude dancing is a protected right under the freedom of speech clauses of the Utah Constitution,” supra ¶ 8, and "if the people of Utah intended to bind the hands of their duly elected officials by protecting nude dancing," supra ¶ 15. Similarly, the concurrence asks “whether our state constitution extends protection to nude dancing in sexually oriented businesses.” Supra V 73. I believe the manner in which both the majority and the concurrence ■ have chosen to frame the issue is designed to presumptively dictate the result both reach, and fails to do justice to the real question before us. Obviously the framers of the Utah Constitution did not draft into that document a right to engage in nude dancing. However, because the clear text of the document protects communication, I believe the relevant initial questions are whether nude dancing is communicative, and whether nude dancing is an abuse of the right to freely communicate.
.This court has found other protections guaranteed by the Utah Constitution to be broader than similar guarantees under the federal Constitution. See, e.g., State v. Thompson, 810 P.2d 415, 417-18, 420 (Utah 1991) (evidence suppressed due to greater privacy expectation in bank and tax records under article I, section 14 "of Utah Constitution than under Fourth Amendment to the federal Constitution); Foote v. Utah Bd. of Pardons, 808 P.2d 734, 734-35 (Utah 1991) (due to differences in sentencing schemes, article I, section 7 of the Utah Constitution affords greater protected liberty interest than the federal Due Process Clause); State v. Larocco, 794 P.2d 460, 469-71 (Utah 1990) (construing article I, section 14 of the Utah Constitution to afford greater privacy interests than the Fourth Amendment to the federal Constitution, thus holding that opening of car door to inspect vehicle identification number constituted unreasonable search); Matan v. Lewis, 693 P.2d 661, 670 (Utah 1984) (noting that different language, constitutional contexts, and jurisprudential considerations "may lead to a different result in applying equal protection principles under Article I, § 24 than might be reached under federal law”). While this case presents an issue of first impression in Utah, other states have interpreted the free speech guarantees of their state constitutions as broader than the protection offered by the federal Constitution. For example, article I, section 8 of the New York Constitution’s free speech language has been held to be "broader than the minimum required by the First Amendment." O'Neill v. Oakgrove Constr., Inc., 11 N.Y.2d 521, 528 N.Y.S.2d 1, 523 N.E.2d 277, 281 n. 3 (1988); see also State v. Henry, 302 Or. 510, 732 P.2d 9, 11 (1987); Pap’s A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 605 (2002); Davenport v. Garcia, 834 S.W.2d 4, 8 (Tex.1992); State v. Reece, 110 Wash.2d 766, 757 P.2d 947, 955 (1988).
. I exercise the same caution regarding sibling state constitutional decisions, though I do cite them where pertinent to my inquiry regarding the Utah Constitution. See, e.g., Soc'y of Separationists v. Whitehead, 870 P.2d 916, 921 n. 6 (Utah 1993) (noting that sister state law may be relied upon when pertinent).
. The Utah Declaration of Rights in general is written to reflect widely held fundamental principles: "Frequent recurrence to fundamental principles is essential to the security of individual *1267rights and the perpetuity of free government.” Utah Const. art. I, § 27.
. The court has previously noted that this clause, "by its terms, is somewhat broader than the federal clause.” Provo City Corp. v. Willden, 768 P.2d 455, 456 n. 2 (Utah 1989).
. In Miller v. Civil City of South Bend, the court gave an excellent discussion concerning the ancient roots of expressive dance. 904 F.2d 1081, 1085 (7th Cir.1990), rev’d sub nom. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (split decision). For example, the court noted that Aristotle wrote that the purpose of dance is " 'to represent men’s character as well as what they do and suffer.' Id. (quoting Aristotle, Poetics). Indeed, there is hardly a place or an era in human history or culture in which dance has not been present, important, and powerful as a form of expression. Utah itself has its own native history of dance; members of the Ute tribe have performed the Bear Dance for thousands of years in celebration of the coming of spring and the renewal of life. This tradition was viewed by the world when the dance was performed at the opening ceremony of the Salt Lake City Winter Olympics in 2002.
. This fact reflects the reality that "nakedness is special and is a direct way of marking the specialness of the dancer.... [A]cts of dressing or of undressing may be incorporated into dances with a variety of social, sexual, aesthetic, or other meanings.” Francis Sparshott, Off the Ground 179 (1988). Since the human body is, after all, the primary means by which a dancer conveys his or her message, it is not surprising that "nakedness is charged with special meanings ... [including] sexuality.... [T]he naked body is, often, the sexually offered and prepared body. Insofar as that is so, naked dance may be inherently erotic.” Id. at 368.
. Nor is simple disapproval on moral grounds a sufficient justification to allow regulation of such conduct, a point which is discussed further infra at paragraph 145. Justice White gave an excellent analysis of this very issue in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), stating:
The purpose of forbidding people to appear nude in parks, beaches, hot dog stands, and like public places is to protect others from offense. But that could not possibly be the purpose of preventing nude dancing in theaters and barrooms since the viewers are exclusively *1269consenting adults who pay money to see these dances. The purpose of the proscription in these contexts is to protect the viewers from what the State believes is the harmful message that nude dancing communicates.
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This being the case, it cannot be that the statutory prohibition is unrelated to expressive conduct. Since the State permits the dancers to perform if they wear pasties and G-strings but forbids nude dancing, it is precisely because of the distinctive, expressive content of the nude dancing performances at issue in this case that the State seeks to apply the statutoiy prohibition. It is only because nude dancing performances may generate emotions and feelings of eroticism and sensuality among the spectators that the State seeks to regulate such expressive activity, apparently on the assumption that creating or emphasizing such thoughts and ideas in the minds of the spectators may lead to increased prostitution and the degradation of women. But generating thoughts, ideas, and emotions is the essence of communication.
Id. at 590-92, 111 S.Ct. 2456 (White, Marshall, Blackmun, & Stevens, JJ., dissenting) (citations and footnote omitted) (emphasis added).
. It is notable, if regrettable to many, that "[a]s of February 1997, Americans 'spen[t] more money at strip clubs than at Broadway, off-Broadway, regional, and non-profit theaters; than at the opera, the ballet, and jazz and classical music performances — combined.' " Margot Rutman, Exotic Dancers’ Employment Law Regulations, 8 Temp. Pol. & Civ. Rts. L.Rev. 515, 516 (1999) (quoting Eric Schlosser, The Business of Pornography: Who’s Making the Money?, U.S. News & World Rep., Feb. 10, 1997, at 44).
. For example, even when conduct is clearly communicative under the plain language of the Utah Constitution, it may still be outside the realm of constitutional protection if it is an "abuse of that right.” Utah Const. art. I, § 1; see infra ¶¶ 124-28. Moreover, even when conduct is entitled to constitutional protection under the liberty and responsibility clause, it may still be regulated if the regulation is properly justified. See infra ¶¶ 141-44.
. The majority refers to this provision as the "criminal libel clause.” Supra ¶ 17.
. The majority ultimately reads the constitutional debate on the criminal libel clause as evidence that the framers wished to limit free speech rights generally. Supra V 47. I believe that the majority is vastly off the mark in using the criminal libel clause to justify the restriction at issue in this case, for reasons I discuss infra at paragraphs 129-40. It is also noteworthy that this court has previously declared,, exactly the opposite, noting that the debates generally "reflect!] the positive attitude of the constitution’s drafters toward a free and uninhibited press.” West v. Thomson Newspapers, 872 P.2d 999, 1014 (Utah 1994). This premise is supported by the governmental restriction clause, which is clearly more restrictive of governmental restraints on free speech than its federal counterpart, as noted by the majority. Supra ¶ 21.
. As the majority notes, the liberty and responsibility clause gave rise to very little debate at the constitutional convention. Supra ¶ 43.
. While South Salt Lake makes much of the supposed "secondaty effects” of nude dancing, there is no evidence in the record to indicate such problems are actually occurring. Absent such evidence, I find no basis for concluding that nude dancing is an abuse of the fundamental right of free communication. Nor do I believe that the evidence presented by South Salt Lake justifies its burdening of the speech rights at issue, as discussed infra at paragraphs 145-55.
. Interestingly, both the majority and the concurrence adopt an extremely "liberal” interpretive approach to reach a traditionally conservative result. It is noteworthy that such an approach is the only way to reach the result both arrive at, for a conservative interpretive approach would dictate the result I reach instead.
.The concurrence seems to believe otherwise, stating that "the terms [of the liberty and responsibility clause] were not contemplated by those . drafting and ratifying the constitution as bestowing any type of protected status on ... nude dancing.” Supra V 108. This approach ignores not only the concurrence's proffered reliance on the text as the starting point in constitutional interpretation, supra ¶ 87, but also the constitutional debates’ failure to indicate that the framers considered bestowing protection on any particular form of communication. Rather, the most that can be culled from the debates is that the framers intended to place defamation and criminal libel outside the realm of free speech protection. Supra ¶¶ 42-48.
. In addition, it should be noted that we recently cast doubt on the constitutionality of the criminal libel clause. See I.M.L. v. State, 2002 UT 110, ¶ 23, 61 P.3d 1038. There, we stated, "In Garrison, the United States Supreme Court considered the truth and ‘good motives’ defense and found it merely palliative.” Id. (citing Garrison v. Louisiana, 379 U.S. 64, 70-73, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964)). We continued:
By requiring a showing of "good motives” and "justifiable ends,” this provision [of the Utah Constitution] allows the punishment of truthful statements made with less than pure intent. As the Garrison court recognized, free speech cannot be limited by the motives of the speaker: "Debate on public issues will not be uninhibited if the speaker must run the risk that it will be proved in court that he spoke out of hatred.” Thus, this section of the Utah Constitution fails to bring the statute [under consideration in I.M.L.] within the prescribed bounds of the First Amendment.
Id. (quoting Garrison, 379 U.S. at 73, 85 S.Ct. 209).
. I agree that the text should always be the touchstone of constitutional interpretation. However, the approach of both the majority and the concurrence is itself divorced from the text, as both read in then-existing law that is not only outside the text but was never mentioned by the drafters.
. Justice Stevens gave a particularly astute observation regarding the method of interpretation relied on by the majority and concurrence, stating:
The contrary evidence cited ... only underscores the obvious fact that leaders who have drafted and voted for a text are eminently capable of violating their own rules. The first Congress was — just as the present Congress is — capable of passing unconstitutional legislation. ... To adopt such an interpretative approach would misguidedly give authoritative weight to the fact that the Congress that passed the Fourteenth Amendment also enacted laws that tolerated segregation, and the fact that the Congress that passed the First Amendment also enacted laws, such as the Alien and Sedition Act, that indisputably violate our present understanding of the First Amendment.
Van Orden v. Perry, 545 U.S. 677, - n. 27, 125 S.Ct. 2854, 2885 n. 27, 162 L.Ed.2d 607 (2005) (citation omitted) (Stevens & Ginsburg, JJ., dissenting).
. Schism is defined as "[a] separation into factions, [especially] a formal division within a Christian church[,] [or] [t]he offense of attempting to produce a schism.” Webster’s II New College Dictionary 987 (1995). Blackstone's view that the common law permits punishment of schismatic speech is quite obviously inconsistent with the American view of freedom of religion, for American governments have never policed *1275church members to prevent dissent or dissidence.
. Justice Néhring’s concurring and dissenting opinion, in my view, ably identifies the historical tension between the Blackstonian and natural law views of freedom of expression, and properly describes the Utah Constitution's origins regarding the latter tradition. Infra ¶¶ 165-90.
. Justice Nehring's opinion critiques this analysis for failing to account for the nuances that might be permitted by "time, place, and manner" restrictions, narrowly drawn. Infra ¶¶ 197-98. His opinion describes dancing as content and "nude" as manner of execution. Infra ¶ 198. My point, however, is that nudity in nude dancing is often an integral element of the expression itself — part of the content, and not separable. Supra ¶ 122. Regulating sculpture according to the kind of materials used would burden the expressive process rather than qualifying as a "time, place, or manner” restriction; while erotic dance may certainly be restricted to private spaces and to venues where public offense or harm will be avoided, I do not believe that the prescription of how the. dancer's body is to be clothed is merely a "manner” restriction.
. The court of appeals noted that, rather than using the video surveillance available at the clubs, "the officers elected to participate in the private sessions themselves, instigating contact between Defendants and themselves, and then citing Defendants for allowing the contact.” S. Salt Lake City v. Terkelson, 2002 UT App 405, ¶ 2, 61 P.3d 282.
. It should be noted that the city has other regulations available, which have not been challenged, pertaining to any legitimate secondary effects. See, e.g., South Salt Lake City Code § 5.56.060 (providing zoning restrictions); id. § 5.56.120 (setting hours of operation).
. Moreover, plaintiffs presented evidence that these supposed deleterious secondary effects do not even exist. Hallard Connor, the president of plaintiff American Bush, states in an affidavit submitted to the trial court that the assessed value of his building increased from $258,000 to $434,000 between 1996 and 2000. Also, in a letter to the South Salt Lake City Council, plaintiffs' attorney states that to the best of his knowledge no dancer at any of these establishments has ever tested positive for a sexually transmitted disease on mandatory, twice-yearly tests. The attorney also claims that, in response to a vice officer’s complaint several years ago to American Bush that he could not enter the premises unobserved, the officer was given a backdoor key and the alarm code. Accordingly, plaintiffs have raised material issues of fact as to whether any "deleterious secondary effects" actually exist to be remedied. Thus, at a minimum, this case should be remanded to the trial court so that a meaningful inquiry might he made regarding South Salt Lake's claims of harmful secondary effects caused by the naked dancing at these clubs.
. Justice Stevens went on to state:
[The Court] compounds [its] error [in approving a total ban on naked dancing] by dramatically reducing the degree to which .the State’s interest must be furthered by the restriction imposed on speech, and by ignoring the critical difference between secondary effects caused by speech and the incidental effects on speech that may be caused by a regulation of conduct.
In what can most delicately be characterized as an enormous understatement, the plurality concedes that "requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects.” To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible.
Id. at 323 (citation omitted).
. The proffered justifications were also nearly identical to those offered by South Salt Lake. The Pap's II ordinance stated that the council wished to "limit[] a recent increase in nude live entertainment within the City, which activity adversely impacts and threatens to impact the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects.” Pap's A.M. v. City of Erie, 571 Pa. 375, 812 A.2d 591, 594 (2002).
. See also Mickens v. City of Kodiak, 640 P.2d 818, 822 (Alaska 1982) (holding unconstitutional an ordinance prohibiting nudity in establishments serving alcohol because no compelling reasons exist to prohibit free expression based on the content of the expression); Harris v. Entm’t Sys. Inc., 259 Ga. 701, 386 S.E.2d 140, 142 (1989) (holding that an ordinance prohibiting *1280certain nude conduct where alcohol is served "is an unconstitutional exercise of police powers even under the less stringent content-neutral test”); Bellanca v. N.Y. State Liquor Auth., 54 N.Y.2d 228, 445 N.Y.S.2d 87, 429 N.E.2d 765, 768 (1981) (holding that a ban on all topless dancing in premises licensed to sell liquor is unconstitutional under the state constitution because the New York Constitution does not contain a provision "modifying the State guarantee of freedom of expression corresponding to ... the diminishing effect of the Twenty-first Amendment with respect to the Federal guarantee of freedom of expression”). But see City of Bangor v. Diva’s, Inc., 830 A.2d 898, 908 (Me.2003) (local ordinance prohibiting nude entertainment where liquor is served held constitutional because the Maine Constitution’s free speech rights do not "prohibit[ ] the exclusion of nudity based solely on the on-premises sale of alcohol”).