American Bush v. City of South Salt Lake

NEHRING, Justice,

dissenting:

¶ 157 I respectfully dissent from categorically consigning nude dancing to the realm of expression outside the protective reach of the Utah Constitution. Unlike Chief Justice Durham, however, I do not conclude that the South Salt Lake City ordinance is unconstitutional. I would, instead, remand the matter to the district court for evaluation under the analytical model applicable to assessing the regulation of speech under the First Amendment to the United States Constitution.

¶ 158 I part company with both the majority and the dissent on one of the few points upon which they agree: that the liberty and responsibility clause of article I, section 1 of the Utah Constitution is complementary to the governmental restriction clause of article I, section 15. I find these constitutional provisions to be related by topic — expression— but little else. These two provisions have separate and distinct historical lineages. The textual and historical evidence leads me to conclude that whatever the men who drafted the Utah Constitution intended these provisions to mean was something quite different from what the majority hypothesizes. My alternative reading of the intent of the framers and ratifiers — the third interpretation offered by this court in this case — uses the same tools, the examination of text and historical evidence, employed by the majority and the dissent and endorsed by Justice Dur-rant in his concurrence.

¶ 159 I begin with the constitutional text. Article I, section 1 states:

All men have the inherent and inalienable right to enjoy and defend their lives and liberties; to acquire, possess and protect property; to worship according to the dictates of their consciences; to assemble peaceably, protest against wrongs, and petition for redress of grievances; to communicate freely their thoughts and opinions, being responsible for the abuse of that right.

Utah Const. art. I, § 1. The text of article I, section 15 reads:

No law shall be passed to abridge or restrain the freedom of speech or of the press. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

Utah Const. art. I, § 15.

¶ 160 Both the majority and Chief Justice Durham read these provisions to describe the same complement of rights respecting speech and expression. Accordingly, they presume that the rights conferred by the liberty and responsibility clause are coextensive with those placed beyond the power of government to abridge or restrain in section 15.

¶ 161 To be sure, there is intrinsic appeal to imposing symmetry on constitutional guarantees that appear to protect similar rights. The notion that the rights reserved to “all men” by the liberty and responsibility clause are the same rights placed beyond the power of the state to regulate under the governmental restriction clause can also be defend*1281ed as the necessary result of applying the rule of construction that promotes the goal of a harmonious, internally consistent interpretation of statutory and constitutional texts. As we have said in the context of statutory interpretation, “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be construed in connection with every other part or section so as to produce a harmonious whole.” State v. Maestas, 2002 UT 123, ¶ 54, 63 P.3d 621 (internal quotation marks omitted).

¶ 162 To the majority, achieving a seamless tie between article I, section 1 and article I, section 15 takes on great importance, because it emboldens the majority to take on the otherwise perilous task of explaining what it means to be “responsible for the abuse of’ the expressive rights recognized in section 1. As the majority correctly notes, the “responsibility” component of the liberty and responsibility clause occupies a place in our constitution unsupported by any explanatory language. Our interpretive confidence does not extend, then, beyond concluding that the “responsibility” clause tethers the “liberty” element of article I, section 1. The challenge that confronts us is to determine what an abuse of the right to communicate thoughts and opinions is and what sanctions, if any, accompany responsibility for abuses of that right.

¶ 163 The majority first attempts to surmount this challenge by examining other sections of the Declaration of Rights. It reasons, quite plausibly, that the text of article I, section 15 might lend interpretive assistance to the liberty and responsibility clause. As it happens, article I, section 15 is constructed in a manner similar to article I, section 1. Just as the liberty and responsibility provision of article I, section 1 begins with a broad statement of rights reserved to “all men,” the first sentence of article I, section 15 imposes on the government broad restrictions on its ability to regulate speech. Then, just as article I, section 1 follows its “liberty” clause with the limiting “responsibility” language, article 1, section 15 qualifies the restrictions on governmental regulation with an exception that reserves to the government the right to proscribe by statute the offense of criminal libel. This parallel structure, although likely coincidental, provides a means for the majority to explain how the responsibility clause might be applied. Its interpretive theory may be described this way: The expressive rights granted by the government in article I, section 1 are the same expressive rights that the government may not abridge or restrain under the terms of article I, section 15. If article I, section 15 expressly permits the government to enact criminal libel statutes — and, moreover, criminal libel statutes that do not permit truth to provide a defense — the government should likewise be able to define abuses of the right to communicate thoughts and opinions using the model of criminal libel as a guide to what constitutes an abuse.

¶ 164 The majority must successfully defend its premise that the rights described in article I, section 1 and article I, section 15 are identical in order to generate persuasive force behind its conclusion that nude dancing is not protected expression. This is because the majority must make the case that the Blackstonian view that government has broad authority to regulate speech applies to both article I, section 1 and article I, section 15. I believe that the text of article I, section 1 and the historical context of that text leads instead to the conclusion that the liberty and responsibility provision of article I, section 1 is not written in the hand of William Blackstone nor closely linked to the speech restriction clause of article I, section 15. Accordingly, I cannot endorse the majority’s assertion that the drafters and ratifiers of the constitution intended the “responsibility” clause to invite broad governmental power to restrict expression deemed to be immoral.

¶ 165 William Blackstone’s Commentaries on the Laws of England plays a preeminent role in making the majority’s historical ease. Blackstone advanced a doctrine of speech freedom that the majority characterizes as “conservative.” The Commentaries adopted the view that freedom of speech and press barred prior restraint of speech, but little else. The majority contrasted Blackstone’s *1282conservative interpretation with the “liberal” approach, which reached its high watermark in the Revolutionary era. This “liberal” view of free expression was one that provided protection for expression generally. Under the “liberal” interpretation, expression was considerably more difficult to “abuse.”

¶ 166 The majority traced the formulation of free speech provisions in state constitutions and noted a trend throughout the first half of the nineteenth century to include “responsibility” clauses qualifying their free speech protections. According to the majority, by the time the Utah Constitution was drafted, Blackstone had triumphed. Expression was free from prior restraint, but little else.

¶ 167 I would have little difficulty accepting the majority’s conclusion that Blackstone could count Utah’s as a constitution in which his views of the freedom of speech held sway if article I, section 15 were the sole provision addressing freedom of speech and press in our constitution. But it is not, and the presence of article I, section 1 complicates the analysis of constitutional expressive rights and calls into question Blaekstone’s claim to doctrinal primacy.

¶ 168 Article I, section 1 articulates rights that government cannot confer upon its citizens. Instead, its rights are “inherent and inalienable.” The language used to describe these rights is the language of natural rights.

¶ 169 The natural law language of “inherent and inalienable rights” can be traced to the political philosophy of John Locke and provided much of the intellectual rationale for the American Revolution. See State v. Ciancanelli, 339 Or. 282, 121 P.3d 613, 624 (2005) (discussing natural law influences on free speech protections in constitutions of western states). As the majority notes in its account of the history of the nation’s understanding of the freedom of speech, early state constitutions incorporated broadly worded guarantees of that right. In the natural law tradition, speech was fully shielded from governmental restraint. This was not to .say, however, that speech was subject to no constraints whatsoever. The limit of speech was at the point where it inflicted injury to “any other individual in his person, property, or good name.” Id. at 622-23.

¶ 170 As the eighteenth century ended, however, states began to add the “responsibility” element to what had up to then been a freedom of speech formulation that featured only the “liberty” element. The majority interprets this trend as marking the resurgence of the Blackstonian approach to free speech and a tipping of the balance toward the authority of government to regulate “blasphemous, immoral, treasonable, schis-matical, seditious, or scandalous libels.” William Blackstone, 4 Commentaries *151-53. The case for this proposition is most convincingly made where constitutional provisions do not cloak their protections of speech in natural rights language. See Ciancanelli, 121 P.3d at 628 (noting that the omission of pronouncements that any rights guaranteed by the Oregon Constitution were “inalienable” was the source of controversy). The intention to incorporate the Blackstonian view of free speech is less evident where “responsibility” language appears within a constitutional provision, like article I, section 1, that expressly describes the right to free speech as “inherent and inalienable.”

¶ 171 Much of the evidence that the drafters of the Utah Constitution intended article I, section 1 to embrace natural law can be found in the very sources cited by the majority. Prominent among these is the lengthy quotation from Thomas M. Cooley’s treatise, which the majority cites as an authoritative philosophical guide for the work of the delegates at the constitutional convention. The passage from Cooley bears repeating here:

In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed_[A state constitution] is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, *1283but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the framework of the political government, and necessarily based upon the pre-exist-ing condition of the laws, rights, habits, and modes of thought. There is nothing primitive in it: it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny.

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 36-37 (Leonard W. Levy ed., Da Capo Press 1972) (1868).

¶ 172 The majority reads this philosophical proclamation to bolster its theme that “[t]he framers of Utah’s constitution saw the will of the people as the source of constitutional limitations upon our state government.” Supra ¶ 13. I do not comprehend how this passage can be read for this proposition. From start to finish, the Cooley quotation is a natural rights manifesto.

¶ 173 A state constitution is a product of the will of the people, as are the restrictions on governmental power to curtail individual rights that a state constitution may impose. Cooley makes clear, however, that in his opinion state constitutions do not create individual rights. Those rights have origins in sources apart from the will of the people as expressed in state constitutions. If Cooley were, in fact, as influential as the majority suggests, his teachings would have neutralized, even vanquished, impulses to embrace Blackstonian notions of free speech.

¶ 174 The majority’s quotation from Cooley has appeared in our cases before, as have the prefatory remarks to it made by Charles Varían, the acting president of the Constitutional Convention. Justice Durham, writing for the two justices of this court who reached the question of whether Utah’s constitution permitted imposition of the death penalty for the crime of aggravated assault by a prisoner, found that the comments of Mr. Varían had “articulated the understanding of the members of the convention that Utah’s Declaration of Rights was never meant to establish a comprehensive or positive law but merely to reaffirm various natural rights that exist independent of any constitution.” State v. Gardner, 947 P.2d 630, 636 (Utah 1997).

¶ 175 Thus, while it would be improper for us to invoke the murky, ill-defined body of law termed natural rights to overturn contemporary legislation, it is proper for us to consider the role of natural law in the formulation of our constitution. As Justice Durham stated in Gardner, “we are free, and in fact our duty requires us, to interpret existing constitutional language to the best of our ability in conformity with the meaning of that language as we understand it and as we conceive the framers meant it to be understood.” Id. at 637. This includes honoring, where appropriate, the natural law influences found in the Declaration of Rights.

¶ 176 The difficulty inherent in divining the intent of the drafters of state constitutions is revealed in the struggle that marked the Texas Supreme Court’s attempt to interpret that state’s constitutional protection of free expression in Ex parte Tucci, 859 S.W.2d 1 (Tex.1993), a case the majority leans on heavily to support its Blackstonian thesis. The majority points to Texas Supreme Court Chief Justice Phillips’s concurring opinion as evidence that Texas has allied itself with the expansive authority of government to regulate speech favored by Blackstone. Chief Justice Phillips’s views on this subject were roundly criticized in an appendix to the Tucci opinion styled, “Response to Concurrence of Chief Justice Phillips” penned by the plurality. The response questioned his central assertion that the drafters of the Texas Constitution were content to dilute free speech protections by authorizing Blackstonian governmental intrusions on speech. As one of many jabs at the reasoning and historical accuracy of the concurrence, the Tucci plurality states that “Chief Justice Phillips amazingly concludes that these people [citizens of the Republic of Texas] who so prized freedom and individualism, lacked ‘tolerance’ of expression.” Id. at 31 n. 25.

*1284¶ 177 The Tucci plurality also squarely rejects Chief Justice Phillips’s contention that the expressive freedoms secured by the Texas Constitution were dependent upon and defined by the Texas Constitution’s governmental restriction clause. The plurality reiterated its approval of the court’s earlier historical assessment that “[rjather than a restriction on governmental interference with speech such as that provided by the First Amendment of the United States Constitution, Texans chose from the beginning to assure the liberties for which they were struggling with a specific guarantee of an affirmative right to speak.” Id. at 31 (internal quotation marks omitted).

¶ 178 To the extent that the lessons of Tucci can be transferred to Utah, they would support the proposition that the affirmative recognition of an inherent and inalienable right to communicate thoughts and opinions contained in article I, section 1 affords the citizens of Utah rights of expression superior to and independent from the restrictions placed on government to limit free speech in article I, section 15.

¶ 179 While a natural law reading of article I, section 1 is incompatible with a Blackstoni-an interpretation of the “responsibility” clause, the concept of limits to free expression is consistent with natural law. As I noted above, natural law recognized that a speaker may be held to account for injury to “person, property, or good name.” The remedy for those injured by abuses of the right to communicate thoughts and opinions is not found in an exception to the governmental restriction clause of article I, section 15, but rather in the guarantees articulated in article I, section 11. The relevant portion of this provision, commonly known as the “open courts” clause, states, “All courts shall be open, and every person, for an injury done to him in his person, property or reputation, shall have remedy by due course of law.” Utah Const, art. I, § 11. This language closely tracks St. George Tucker’s description of the limits of a non-Blackstonian, natural law based right of expression as injury to an individual “in his person, property, or good name.” Ciancanelli, 121 P.3d at 622-23.

¶ 180 The close conceptual and textual connection between a natural law interpretation of article I, section 1 and the open courts clause reinforces the natural law credentials of the liberty and responsibility clause by providing a constitutional point of reference to help understand what an abuse of the expressive right is and what can be done about it. The majority claims that the only textual evidence for the “responsibility” element of the liberty and responsibility clause appears in article I, section 15’s criminal libel provision. This assertion requires a conceptual leap of some distance, a span that is significantly broadened when the liberty and responsibility clause is reunited with its natural law heritage. The open courts clause presents a much better interpretive “fit” for the responsibility element of the liberty and responsibility clause by expressly inviting persons aggrieved by an alleged abuse of article I, section l’s expressive right to pursue relief in the courts.

¶ 181 A natural law interpretation of the liberty and responsibility clause necessarily requires an answer to the question, “Where does article I, section 15 ‘fit’?” Once again, part, of the answer appears in the majority opinion. In her discussion of the proceedings of the constitutional convention, Justice Parrish implies, correctly in my view, that the delegates had newspapers in the forefront of their minds during the debate over the text of article I, section 15. This is evident from the particular interest the Utah Press Association and the editor of The Salt Lake Tribune, Charles Goodwin, had in the formulation of the provision’s language, particularly that relating to criminal libel. The world of newspaper publishing was much different in 1895 than it is today. The most profound evidence of this difference is in the number of newspapers published. At the turn of the century, an inhabitant of Utah could choose from 580 newspapers staffed by more than 1,200 editors and publishers. West v. Thomson Newspapers, 872 P.2d 999, 1013 n. 25 (Utah 1994). We took note of the rough and tumble press environment of the statehood era in Thomson, 872 P.2d at 1013-14. It was a time of unrestrained opinion mongering. The marketplace of ideas was a *1285teeming souk, overflowing with merchandise of dubious quality. In this respect, the information landscape had much in common with the blogosphere of our day. As we observed in Thomson, the press environment of the time focused the attention of the convention on the treatment of libel in article I, section 15. That discussion was conducted in the language of positive law with no overtones of natural law. It yielded a free speech clause in which the prohibition on the enactment of laws abridging speech is seemingly overshadowed by the lengthy, detailed description of the criminal libel exception to that prohibition.

¶ 182 I believe that it would be wrong to use the criminal libel language within article I, section 15 to justify governmental restrictions on speech generally. By 1895, Utah’s debate over the wording of a criminal libel component of its constitution was a common, perhaps obligatory, item on the agenda of state constitutional conventions. A canvass of the constitutions of the fifty states shows that thirty-four expressly address criminal libel. Criminal libel proved to be a persistent presence on the free speech landscape, reaching back in time to the 1735 trial of Peter Zenger and continuing through the prosecution of James Callender for violation of the Alien and Sedition Act, United States v. Callender, 65 Whart. St. Tr. 688, 25 F.Cas. 239 (C.C.D.Va.1800), a case that led to the impeachment of Supreme Court Justice Samuel Chase in 1805, and enduring into nineteenth century state constitutional debates until finally declared unconstitutional under the First Amendment in Garrison v. Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964). Provisions recognizing the lawfulness of criminal libel were commonplace in nineteenth century state constitutions; for example, article I, section 8 of the Texas Constitution reads as follows:

Every person shall be at liberty to speak, write or publish his opinions on any subject, being responsible for the abuse of that privilege; and no law shall ever be passed curtailing the liberty of speech or of the press. In prosecutions for the publication of papers, investigating the conduct of officers, or men in public capacity, or when the matter published is proper for public information, the truth thereof may be given in evidence. And in all indictments for libels, the jury shall have the right to determine the law and the facts, under the direction of the court, as in other eases.

Tex. Const. art. I, § 8.

¶ 183 Yet, there is little evidence that a state’s treatment of criminal libel in its constitution was intended to serve double duty as an endorsement of a broad Blackstonian grant of legislative supremacy in the arena of free expression.

¶ 184 If the text of article I, section 1 and the debates over the criminal libel language in article I, section 15 "at Utah’s constitutional convention do not reflect allegiance to Blackstone, would this alter our analysis of the South Salt Lake City ordinance? I believe that it should. To understand why I hold this view, it is necessary to briefly examine the methodology the majority selected to reach its determination that nude dancing was not intended to be protected by the Utah Constitution.

¶ 185 The majority ceded sweeping authority to the legislature to define the scope of free speech in 1895 by concluding that the free expression elements of the Utah Constitution are Blackstonian. By deciding that the constitutional scope of free expression is determined by the legislature through its enactments, or defined by the common law, the task of excluding ■ nude dancing from constitutional protection was substantially eased.

¶ 186 I am uncomfortable with this approach for several reasons. First, as I have discussed above, I do not believe that the case has been made that the people responsible for drafting and ratifying the Utah Constitution intended to constitutionalize every territorial statute based on the theory that the legislature had broad discretion to rein in the form and content of expression. Furthermore, the approach adopted by the majority does not explain how or why a particular territorial statute should be taken into account when assessing its constitutional implications.

*1286¶ 187 An examination of the statutes cited by the majority to establish the unprotected status of nude dancing will illustrate this problem. The.first Utah legislature reenacted a territorial statute that made it a crime to “employ any female to dance, promenade, or otherwise exhibit herself’ in any “saloon, dance cellar, or dance room, public garden, public highway, or in any place whatsoever, theaters excepted.” Supra ¶ 55 (citing Utah Rev. Stat. § 4244 (1898)). This injunction certainly restricts who may dance. It is far less clear that it is intended to restrict expression.

¶ 188 While the statute bans women from dancing in public, it does not forbid men to impersonate women in dances, promenades, or other exhibitions. I make no claim to any historical knowledge about drag entertainment in Utah at the time of statehood. If it existed, it is safe to assume it was not encouraged. Whether entertainers in drag performed in Utah is not the point. It is rather that by criminalizing female dancing the legislature may not have intended to target content, but had in mind the preservation of the nineteenth century’s gender-based morality.

¶ 189 A companion statute to the ban on female dancing makes this point even more compellingly. Territorial’ law exposed a woman who played any musical instrument “for hire, drink, or gain ... in any drinking saloon, dance room or dance cellar, public garden, or any public highway, common, or street, or on a vessel, steamboat, or railroad ear, or in any lewd house, or disorderly place whatsoever, where two or more persons are assembled together” to a $100 fine and one month in jail. Utah Rev. Stat. § 4243 (1898). This statute was no more about music than the companion prohibition on female dancing was about dancing. Through both of these enactments the State exercised its police power to regulate gender roles, not expression. The legislature’s concern was with the messenger, not the message.

¶ 190 No member of this court would, I believe, take seriously a contention that any of the statutory proscriptions against women playing musical instruments do not enjoy constitutional protection and may be banned today, irrespective of whether the statutes were aimed at unpopular content or intended to combat perceived harm to women. But the majority does not explain how we would conduct a principled review that would take us to this obvious result. The musical instrument ban was in place as early as 1876 and reenacted after statehood. Yet, clearly, more than a long-standing territorial statute or the statute’s reenactment after statehood is required to establish the intention to deprive a form of expression of constitutional protection. The majority does not tell us what that requirement is, other than to say that there existed enough historical evidence to satisfy the majority that nude dancing would have been considered unacceptable and therefore is not entitled to constitutional protection.

¶ 191 Also left unresolved in the majority’s approach is the fate of nude dancing performed in settings other than in sexually oriented businesses. By branding all nude dancing as expression unprotected by the Utah Constitution, the majority has seemingly cut itself off from shielding nudity in modern dance or ballet from governmental intrusion. Accordingly, I agree with Chief Justice Durham’s critique of the majority opinion’s shortcomings in this respect.

¶ 192 I believe that it is unfortunate that the majority has chosen to disregard the fact that the ordinance restricts its application to sexually oriented businesses in favor of a sweeping and, in my opinion, flawed analysis that follows this syllogism: obscene speech was not entitled to constitutional protection in 1895, nude dancing is obscenity, therefore nude dancing enjoys no constitutional protection.

¶ 193 I do not believe that the majority is prepared to adopt the position that any territorial statute that prohibited a form of expression and survived to become part of the laws of the State of Utah denies constitutional protection to that expression. The absence of clear evidence that the Utah Constitution absorbed Blackstonian doctrine into its text makes it even more difficult to deem the statutory and common law treatment of certain forms of expression categorically ineligible for constitutional protection.

*1287¶ 194 I reach my conclusion, therefore, that the text and history of article I, section 1 and article I, section 15 manifest the intention of the framers to protect the expansive rights of expression inherent to every person, independent of governmental intrusions justified by Blackstonian philosophy or by extrapolation from the criminal libel provisions of article I, section 15. I am therefore convinced that the majority is wrong in concluding that the men who drafted and ratified the Utah Constitution intended the “responsibility for abuse” provision to empower the government to restrict “immoral” speech.

¶ 195 Although I join the Chief Justice in concluding that nude dancing falls within the protections afforded expression by the Utah Constitution, I do not join in either her conclusion that the South Salt Lake City ordinance is unconstitutional or her method of assessing whether the ordinance unjustifiably burdens expression.

¶ 196 Having rejected the majority’s conclusion that nude dancing is entitled to no protection whatsoever under the Utah Constitution, the Chief Justice advocates a test of constitutionality that, in my view, would impose too demanding a burden on South Salt Lake City.

¶ 197 Despite indicating that we have applied “various forms” of heightened scrutiny to alleged infringements of article I rights, the Chief Justice nevertheless appears to advance a “one size fits all” standard of heightened scrutiny to restrictions on the right of free expression that is borrowed from our article I, section 11 “open courts” jurisprudence. That approach places exclusive focus on the nature of the legislative objective and the propriety of the means selected by the legislative body to reach that objective. It is, therefore, an approach that appears to treat all forms of expression to the same high degree of constitutional protection. Nor does the Chief Justice’s preferred analytical model appear to acknowledge that a separate approach might be in order for “time, place, and manner” restrictions of the type fashioned by South Salt Lake City.

¶ 198 The absence of nuance in the Chief Justice’s analytical model is evident in her summary dismissal of “morals” as a legitimate justification for the ordinance. Her citation to federal authorities for the proposition that expression cannot be forbidden simply because it offends the moral sensibilities of a majority of citizens is both true and misleading. The cases that announce that principle dealt with enactments that directly targeted expressive content. See, e.g., United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971). The South Salt Lake City ordinance is not directed at content, but is rather a time, place, and manner restriction that seeks to regulate the manner — minimal clothing — in which persons may appear, whether engaged in expressive activity or otherwise, within a sexually oriented business.

¶ 199 Therefore, just as I believe the majority’s analysis falls short of the mark by its silence on the question of how it would treat nude dancing in legitimate theater, I find the Chief Justice’s approach unsatisfying in her unwillingness to consider content in any way whatsoever when deciding how high to set the bar that South Salt Lake City must clear to justify the legitimacy of its ordinance.

¶200 If there is one other matter upon which the majority and the Chief Justice are in accord, it is in their dissatisfaction with federal First Amendment jurisprudence. I am far less troubled by it. In fact, I have come away from this appeal with a new-found sympathy for it. The attraction of the federal First Amendment approach may have more to do with my unease over the alternatives proposed by my colleagues. The majority offers too little protection for expression, while the Chief Justice is overprotective. I have, therefore, come to be convinced that there is merit in the federal “intermediate scrutiny” model and that we should incorporate it into our analytical approach to the regulation of free expression under the Utah Constitution.

¶ 201 The Chief Justice is particularly critical of federal “secondary effects” jurisprudence. Under the current formulation of the doctrine, adequate “secondary effect” justifi*1288cations for restrictions on speech may be derived from pro forma, secondary evidence of harmful effects of sexually oriented expression. While I share the Chief Justice’s concern that intermediate scrutiny may slide into the realm of no scrutiny at all, I agree with the hopeful observation of the Tenth Circuit Court of Appeals that “the quantity and nature of the empirical evidence needed to uphold a city ordinance based on the negative secondary effects of sexually oriented speech in general, or nude dancing in particular, are continuing to evolve.” Heideman v. S. Salt Lake City, 348 F.3d 1182, 1197 (10th Cir.2003).

¶202 I would reverse the trial court and remand this matter for review under the federal First Amendment model. I am mindful that the outcome of such a remand might be preordained. The South Salt Lake City ordinance has already endured and survived a First Amendment challenge in a federal court action brought by dancers employed by the businesses that are the plaintiffs here. I would, nevertheless, give the business plaintiffs their day in court.