2006 UT 40
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
American Bush, a Utah
No. 20020117
corporation; Jerry Phelps,
dba Paradise Modeling;
Brent E. Reid, dba All for
Love; Gayle Petersen, dba
Leather and Lace,
Plaintiffs and Appellants,
v.
City of South Salt Lake, a
F I L E D
municipal corporation,
Defendant and Appellee.
July 28, 2006
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Third District, Salt Lake
The Honorable J. Dennis Frederick
No. 010904878
Attorneys: W. Andrew McCullough, Trenton K. Ricks, Midvale,
for plaintiffs
Janice L. Frost, David M. Carlson, South Salt Lake,
and Scott D. Bergthold, Chattanooga, Tennessee, for
defendant
---
PARRISH, Justice:
¶1
Plaintiffs American Bush, Jerry Phelps,1 Brent E. Reid,
and Gayle Petersen (collectively, the "Businesses") appeal the
district court's denial of their motion for summary judgment and
grant of summary judgment to the City of South Salt Lake ("South
Salt Lake" or the "City") on the Businesses' claim that the Utah
Constitution protects nude dancing. We hold that the provisions

1 Jerry Nielsen, dba Paradise Modeling, was one of the
original plaintiffs in this case. By motion dated May 22 and
granted May 23, 2002, Jerry Phelps, dba Paradise Modeling, was
substituted for the deceased Jerry Nielsen.

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of the Utah Constitution that guarantee Utah citizens' rights to
"communicate freely their thoughts and opinions" do not extend
protection to nude dancing in sexually oriented businesses. We
accordingly affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2
Plaintiffs American Bush, Jerry Phelps, dba Paradise
Modeling, and Gayle Petersen, dba Leather and Lace, operate nude
dancing establishments located in South Salt Lake. Plaintiff
Brent E. Reid owns a lingerie and novelty store, also situated in
South Salt Lake. In May 2001, the South Salt Lake City Council
adopted a new sexually oriented business ordinance that repealed
and replaced all previous ordinances of this type. Section
5.56.310(G) of the new ordinance specifically prohibits any
sexually oriented business employee from "[a]ppear[ing] in a
state of nudity before a patron on the premises of a sexually
oriented business." This language, which had not appeared in
previous versions of the City's sexually oriented business
ordinance, effectively eliminates the former subcategory of "nude
dancing establishments" and requires three of the four
businesses--American Bush, Paradise Modeling, and Leather and
Lace--to either reapply for business licenses as semi-nude
dancing establishments or face civil and criminal sanctions for
violation of the new ordinance.
¶3
Originally, the Businesses filed an action in district
court, claiming, among other things, that article I, section 15
of the Utah Constitution confers greater protection on expression
than does the United States Constitution, rendering the City's
ordinance prohibiting nude dancing a violation of state free
speech rights. The City responded by removing the suit to
federal district court, and the Businesses countered by amending
their complaint before the City filed its answer, to delete all
federal constitutional claims from the suit. The federal
district court then dismissed all federal claims with prejudice
but allowed the Businesses to refile their state constitutional
challenges in state court.
¶4
After refiling in state court, the Businesses twice
moved for temporary injunctions restraining the City from
enforcing the ordinance. The motions were denied. The
Businesses then moved for summary judgment, and the City
responded with its own summary judgment motion. The district
court denied the Businesses' motion and granted South Salt
Lake's. The Businesses now appeal.
No. 20020117
2

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ANALYSIS
¶5
The Businesses present us with a question of Utah
constitutional interpretation. Each of the businesses is, or has
an interest in, a business offering nude dancing as part of an
adult, sexually oriented business located in South Salt Lake
City. The City has enacted various business license and zoning
restrictions on sexually oriented businesses. The Businesses see
these enactments as restrictions on their right of free
expression through nude dancing and believe the restrictions are,
or should be, prohibited under the Utah Constitution.
¶6
Specifically, the Businesses claim that article I,
sections 1 and 15 of the Utah Constitution confer greater
protection to expression through nude dancing than the United
States Constitution.2 As such, they claim that the city
ordinance prohibiting nude dancing in South Salt Lake violates
the free speech rights of the Businesses under the Utah
Constitution. As subsidiary issues, the Businesses also claim
that the institution of a new city ordinance banning nude dancing
in sexually oriented businesses constitutes a "taking" in
violation of article I, section 7 of the Utah Constitution, that
the City is without legal authority to enact such an ordinance,
and that as to plaintiff Brent Reid, the summary judgment entered
in the City's favor by the district court was improper. In
reviewing the judgment of the district court, we will analyze
each of these claims in turn.
I. PLAINTIFFS' FREE SPEECH CLAIM
¶7
Plaintiffs have produced little direct authority for
the proposition that the Utah Constitution protects nude dancing.
However, this is due primarily to the poverty of both Utah case
law and scholarly analysis of the history and meaning of the
freedom of speech provisions of the Utah Constitution. In light
of this court's support of the primacy model, which analyzes
issues under the state constitution before resorting to the
federal constitution, West v. Thomson Newspapers, 872 P.2d 999,

2 Federal courts have held that the imposition of a
requirement for minimal dress on dancers in sexually oriented
businesses poses at most a de minimis effect on any free speech
rights involved under the United States Constitution. See, e.g.,
Heideman v. S. Salt Lake City, 348 F.3d 1182, 1196 (10th Cir.
2003) (citing City of Erie v. Pap's A.M., 529 U.S. 277, 294
(2000)). Plaintiffs in this case, however, have deliberately
excluded any claims under the United States Constitution from
being considered in this action.
3
No. 20020117

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1004­07 (Utah 1994), we take this opportunity to elucidate the
constitutional underpinnings of our holding that the Utah
Constitution does not protect nude dancing from the reach of the
South Salt Lake City ordinance at issue here. The issue was
fairly raised by plaintiffs, and our attention to this matter may
serve to clarify the state of the law in this area.
¶8
The question before us is whether a South Salt Lake
ordinance banning nude dancing in sexually oriented businesses
violates the Utah Constitution. The first step in our analysis
must be to determine whether nude dancing is a protected right
under the freedom of speech clauses of the Utah Constitution. If
it is a protected right, we then must determine whether the
ordinance impermissibly abridges or restrains this right. As
this court has not yet addressed these questions, this case is
one of first impression.
A. Interpretative Framework
¶9
Although this court has not addressed whether the Utah
Constitution protects nude dancing, prior cases provide guidance
on how the freedom of speech provisions of the Utah Constitution
should be interpreted. The scope of Utah's constitutional
protections "may be broader or narrower than" those offered by
the First Amendment, "depending on [our] state constitution's
language, history, and interpretation." West, 872 P.2d at 1004
n.4.
¶10
The interpretation of the protections afforded by the
Utah Constitution appropriately commences with a review of the
constitutional text. Grand County v. Emery County, 2002 UT 57,
¶ 29, 52 P.3d 1148 (explaining that "our starting point in
interpreting a constitutional provision is the textual language
itself"). While we first look to the text's plain meaning, State
v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218, we recognize that
constitutional "language . . . is to be read not as barren words
found in a dictionary but as symbols of historic experience
illumined by the presuppositions of those who employed them."
Dennis v. United States, 341 U.S. 494, 523 (1951) (Frankfurter,
J., concurring). We thus inform our textual interpretation with
historical evidence of the framers' intent. State v. Betensen,
378 P.2d 669, 669-70 (Utah 1963) ("[I]t is proper to look not
only to the [constitution] itself, but to the background out of
which it arose and its practical application in order to
determine the [framers'] intent."); see also Univ. of Utah v. Bd.
of Exam'rs, 295 P.2d 348, 361-62 (Utah 1956) ("[I]f the words are
ambiguous or their meaning not clear, then it is proper to look
outside the instrument itself to ascertain what the framers meant
by the language used.").
No. 20020117
4

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¶11
In reviewing the history of Utah constitutional
provisions protecting the freedom of speech, "we [have] look[ed]
for guidance to the common law, our state's particular . . .
traditions, and the intent of our constitution's drafters."
West, 872 P.2d at 1013. We also have looked to court decisions
made contemporaneously to the framing of Utah's constitution in
sister states with similar free speech constitutional provisions.
KUTV, Inc. v. Conder, 668 P.2d 513, 518­21 (Utah 1983). In light
of the fact that the Utah Constitution was "adopted . . . against
the background of over a century of experience under the United
States Constitution," an understanding of the First Amendment
contemporary to its adoption is also instructive. Id. at 521.
¶12
In summary, in interpreting the Utah Constitution,
prior case law guides us to analyze its text, historical evidence
of the state of the law when it was drafted, and Utah's
particular traditions at the time of drafting.3 The goal of this
analysis is to discern the intent and purpose of both the
drafters of our constitution and, more importantly, the citizens
who voted it into effect.4 It is from this latter class of
individuals that the Utah Constitution derives its power and

3 We have intentionally excluded the consideration of policy
arguments suggested by Society of Separationists v. Whitehead,
870 P.2d 916, 921 n.6 (Utah 1993). As is the case with statutory
interpretation, our duty is not to judge the wisdom of the people
of Utah in granting or withholding constitutional protections
but, rather, is confined to accurately discerning their intent.
Volker-Scowcroft Lumber Co. v. Vance, 88 P. 896, 899 (Utah 1907)
("With the wisdom or equity of such a [constitutional] provision
neither we nor the Legislature [has] anything to do."). Policy
arguments are relevant only to the extent they bear upon the
discernment of that intent.

4 Federal courts have recognized a similar obligation when
interpreting the United States Constitution. See, e.g., Bell v.
Maryland, 378 U.S. 226, 288­89 (1964) (Goldberg, J., concurring)
("Our sworn duty to construe the Constitution requires, however,
that we read it to effectuate the intent and purposes of the
Framers. We must, therefore, consider the history and
circumstances indicating what the [constitutional provisions]
were in fact designed to achieve."); Lake County v. Rollins, 130
U.S. 662, 671 (1889) ("The simplest and most obvious
interpretation of a constitution, if in itself sensible, is the
most likely to be that meant by the people in its adoption.");
Tom v. Sutton, 533 F.2d 1101, 1105 (9th Cir. 1976) ("In
interpreting a constitutional provision, the fundamental
principle of construction is to give the provision the effect
intended by the framers and the people adopting it.").
5
No. 20020117

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effect, and it is to them we must look for its proper
interpretation.
¶13
The framers of Utah's constitution saw the will of the
people as the source of constitutional limitations upon our state
government. On the floor of the Utah constitutional convention,
Charles Varian quoted from a treatise written by Thomas Cooley,
the preeminent authority of the late nineteenth century on state
constitutional matters, which reads as follows:
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,
but 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-existing
condition of 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) [hereinafter Cooley, Constitutional Limitations], quoted
in 1 Official Report of the Proceedings and Debates of the
Convention 643 (Salt Lake City, Star Printing Co. 1898)
[hereinafter Proceedings]. Thus, as the rights which are
protected by the Utah Constitution are "based upon the pre-
existing condition of laws, rights, habits, and modes of thought"
No. 20020117
6

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then extant, id., it is to these sources that we must look to
determine the proper scope of the freedom of speech.
¶14
Through the process of voting for the constitution on
November 5, 1895, the citizens of Utah circumscribed the limits
beyond which their elected officials may not tread.5 As "[a]ll
political power is inherent in the people," Utah Const. art. I,
§ 2, only Utah's citizens themselves had the right to limit their
own sovereign power to act through their elected officials.
Judicial officers may not substitute their own wisdom for that of
the people of Utah inasmuch as the citizens limited the actions
of their elected officials in certain areas but left them free in
other areas to exercise their judgment in representing their
constituents. To do so would be to deny political powers to the
citizens of Utah that they in their wisdom and judgment had
retained for themselves.
¶15
It is now our preliminary task to discern if the people
of Utah intended to bind the hands of their duly elected
officials by protecting nude dancing under the free speech
clauses of their constitution. We first examine the text of the
freedom of speech clauses in our constitution. We then examine
the historical roots of the language of our constitution.
Finally, we examine the historical context of the society which
adopted our freedom of speech clauses in order to divine the
intent of our citizens in choosing the language.
B. The Text of the Freedom of Speech
Provisions of the Utah Constitution
¶16
We begin our analysis with the constitutional text
itself. The language of our constitution contains the surest
indication of the intent of its framers and the citizens of Utah
who voted it into effect. Article I, section 1 declares, in
relevant part, that "[a]ll men 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. Additionally, article I, section 15 provides as
follows:

5 "By the constitutions which they form, [the people] tie up
alike their own hands and the hands of their agencies; and
neither the officers of the State, nor the whole people as an
aggregate body, are at liberty to take action in opposition to
these fundamental laws." Cooley, Constitutional Limitations,
supra ¶ 13, at 28.
7
No. 20020117

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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.
Id. art. I, § 15.
¶17
The framers of the Utah Constitution divided the
freedom of speech guarantees into three distinct clauses. The
first clause (the "liberty and responsibility clause"), contained
in section 1 of the declaration of rights, defines the scope of
the freedom of speech. Id. art. I, § 1. The second clause (the
"governmental restriction clause"), contained in the first
sentence of section 15, prohibits governmental actions that
abridge or restrain those rights. Id. art. I, § 15. These first
two clauses of general application function in concert; the first
defines what is protected, while the second defines the limits of
governmental action in relation to those protected activities.
The third clause (the "criminal libel clause"), contained in the
second sentence of section 15, illustrates the limits of
governmental action, and by inference the scope of individual
freedoms, in the specific instance of criminal libel
prosecutions. Id.
¶18
We pause to note that we disagree with Justice
Nehring's contention that article I, section 1 and article I,
section 15 are not complementary and should not be read together.
Such an interpretative approach defies conventional methods of
constitutional interpretation, which dictate that when
determining the meaning of a constitutional provision, "other
provisions dealing generally with the same topic . . . assist us
in arriving at a proper interpretation of the constitutional
provision in question." In re Worthen, 926 P.2d 853, 866-67
(Utah 1996); see also Berry v. Beech Aircraft Corp., 717 P.2d
670, 675 (Utah 1985) (indicating that the meaning of a
constitutional provision "must be taken not only from its history
and plain language, but also from its functional relationship to
other constitutional provisions"); State ex rel. Breeden v.
Lewis, 72 P. 388, 389 (Utah 1903) (indicating that when
constitutional provisions "are in pari materia, . . . under well-
known rules of interpretation, [they] must be construed
together"). Since article I, section 1 and article I, section 15
are both directed toward expression, it is entirely appropriate,
No. 20020117
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in fact necessary, that we construe these two provisions
together. Indeed, this court has specifically held that "article
I, section 15 must be read in conjunction with other
constitutional provisions . . . [including] [t]he opening
provision of the Utah Constitution." West, 872 P.2d at 1015
(emphasis added); see also Redding v. Brady, 606 P.2d 1193, 1196
(Utah 1980) (construing article I, section 1 and article I,
section 15 in concert).
¶19
Justice Nehring suggests that these two provisions
should not be read together because they have "distinct
historical lineages." Infra ¶ 158. As is ably articulated by
Justice Durrant in his concurring opinion, however, the
distinction urged by Justice Nehring is not entirely clear.
Infra ¶ 102. And we are convinced that although article I,
section 1 may have some natural law underpinnings, its language
is clearly tempered by the Blackstonian-inspired phrase "being
responsible for the abuse of that right." See discussion infra
¶¶ 102-05. Consequently, Justice Nehring's interpretation does
not convince us that we should abandon the well-accepted approach
of reading like provisions together.
¶20
Having concluded that these two provisions should be
read in concert, we now must determine whether the interplay of
these provisions protects nude dancing under the Utah
Constitution. In analyzing this question, we deem the liberty
and responsibility clause to be directly applicable because it
defines the character of those activities that are protected.
The criminal libel clause is also instructive, as it provides a
specific example of the extent of those freedoms. The
governmental restriction clause, however, is not applicable in
this initial analysis because it does not expand upon the rights
contained in the liberty and responsibility clause but merely
restrains governmental action in relation to those established
rights; no additional rights are secured by the former than are
contained in the latter. Other states with similar constructions
have interpreted their freedom of expression clauses similarly.
See Ex parte Tucci, 859 S.W.2d 1, 75-76 (Tex. 1993) (Phillips,
C.J., concurring) ("[N]o Texas case has yet suggested that the
second [governmental restriction] clause imparts protection
greater than either the `liberty and responsibility' clause or
the First Amendment, or that it modifies the state's ability to
impose punishment for expressions deemed an `abuse.'"); Jacobs v.
Major, 407 N.W.2d 832, 837 (Wis. 1987) ("The two independent
clauses [of article I, section 3] are neither verbose nor
repetitious in expressing the idea of the section. They are
related to each other with the first expressing the right to free
speech and the second stating the entity, the state, against whom
the right is shielded.").
9
No. 20020117

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¶21
While it is true that the governmental restriction
clause contained in article I, section 15 of the Utah
Constitution is broader than its federal counterpart, this does
not expand the range of expression protected, as Chief Justice
Durham's dissent seems to imply. See infra ¶ 113. Rather, it
narrows the scope of permissible governmental action in relation
to forms of expression protected by the liberty and
responsibility clause of article I, section 1. Chief Justice
Durham cites a footnote in Provo City Corp. v. Willden, 768 P.2d
455 (Utah 1989), infra ¶ 116 n.10, in which we stated that
article I, section 15 of the Utah Constitution, "by its terms, is
somewhat broader than the federal clause." 768 P.2d at 456 n.2.
Indeed, the Utah Constitution forbids laws which either "abridge
or restrain the freedom of speech," Utah Const. art. I, § 15
(emphasis added), while the United States Constitution forbids
only those laws that "abridg[e]" that right. U.S. Const.
amend. I. Thus, the language of the Utah Constitution seems to
prohibit laws which either directly limit protected rights or
indirectly inhibit the exercise of those rights. This clause,
however, does not define what those rights are.
¶22
Instead, we must turn to the text of the liberty and
responsibility clause to determine what these rights are. The
Utah Constitution explicitly defines the freedom of speech right
in article I, section 1 as the right to "communicate freely . . .
thoughts and opinions, being responsible for the abuse of that
right." In interpreting this clause, Chief Justice Durham
focuses on the word "communicate." Infra ¶ 116. Purporting to
use a plain language analysis, Chief Justice Durham asserts that
since nude dancing is communicative, it is therefore
communication. See discussion infra ¶¶ 116-23. Such an
interpretation is problematic, however, because it does not make
a distinction between communicative acts and communication. It
assumes that because nude dancing is communicative, it is
constitutionally protected unless it qualifies as an abuse of the
right to communicate. But this interpretation is overly broad
because it does not examine the meaning of "communicate" within
the context of a constitution. It attempts to suggest that the
term "communicate" has a single, objective meaning that can be
read in isolation. This is not the case. "A text's meaning
cannot be separated from its speaker, its audience, its genre--
from its context." Laney v. Fairview City, 2002 UT 79, ¶ 32, 57
P.3d 1007 (internal quotation marks and brackets omitted).
¶23
In using history as context to illuminate the text's
meaning, we recognize that the Utah Constitution is not a
patchwork of "barren words found in a dictionary." Dennis v.
United States, 341 U.S. 494, 523 (1951) (Frankfurter, J.,
concurring). Instead, it is the "original and supreme will" of
No. 20020117
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the citizenry, and "a superior, paramount law" that fixes the
boundaries of power granted to the branches of state government,
including this court. Marbury v. Madison, 5 U.S. (1 Cranch) 137,
176-77 (1803). If these boundaries can be shifted by "those
intended to be restrained," then "[t]he distinction[] between a
government with limited and unlimited powers[] is abolished."
Id. We must therefore consider the text in its historical
context in order to discern if the constitution's framers
intended to limit the government's power to regulate nude
dancing. See In re Inquiry Concerning a Judge, 1999 UT 6, ¶ 15,
976 P.2d 981 (explaining that "this court has a very long history
of interpreting constitutional provisions in light of their
historical background and the then-contemporary understanding of
what they were to accomplish"); see also Spence v. Utah State
Agr. Coll., 225 P.2d 18, 23 (Utah 1950) ("We are restricted to
this definition because of another canon of constitutional
construction that terms used in a constitution must be taken to
mean what they meant to the minds of the voters of the state when
the provision was adopted." (citation omitted)).
¶24
Indeed, Chief Justice Durham herself has previously
recognized the importance of evaluating constitutional text
within a historical framework, stating that "[c]onstitutional
language must be viewed in context, meaning that its history and
purpose must be considered in determining its meaning." Laney,
2002 UT 79, ¶ 37 (emphasis added). In light of this recognition,
it is puzzling why she believes it is inappropriate to examine
historical evidence of the framers' intent.
¶25
Therefore, with a historical context in mind, we return
to the text of the liberty and responsibility clause. On its
face, the freedom of speech defined in the Utah Constitution is a
circumscribed right. The freedom to communicate thoughts and
opinions is limited by the caveat that abuses of the right may be
punished. West, 872 P.2d at 1015. The term "abuse of that
right" specifically constrains the scope of the communication
right, and any textual interpretation must consider how this
phrase functions within the liberty and responsibility clause.6

6 Although we do recognize that Chief Justice Durham
addresses the "abuse of that right" language, infra ¶ 124, she
fails to do so until after she has examined the term
"communicate," infra ¶ 116. Indeed, Chief Justice Durham appears
to reach the result that nude dancing is protected communication
before even examining this "abuse" language. See infra ¶¶ 116-
23.
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No. 20020117

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¶26
The question then becomes, "What constitutes an abuse
of this right?" This court has noted that "some historical
evidence suggests that [the phrase "responsible for the abuse"]
was intended to preserve liability for defamation." Id.; see
also 1 Jennifer Friesen, State Constitutional Law: Litigating
Individual Rights, Claims, and Defenses § 5-2(c)(5) (3d ed.
2000). While this is undoubtedly true, there is no evidence that
the framers intended to limit the abuses that may be regulated to
defamation suits. The framers chose to use the broad phrase
"abuse of that right" rather than language specifically tailored
to suits for libel and defamation. We must assume that they did
so in order to preserve a broader definition of what constitutes
an abuse.
¶27
The only textual evidence for what this phrase means
can be found in the criminal libel clause in the second sentence
of article I, section 15. In this clause, we see that it may be
an abuse of free speech to print a statement libelous to
government interests, even if that statement happens to be
completely true. Under that clause, an individual may use the
truth as a defense in suits for criminal libel only if the
statements were "published with good motives, and for justifiable
ends." Utah Const. art. I, § 15.
¶28
The United States Supreme Court, however, has
explicitly rejected the "good motives" and "justifiable ends"
requirements under the First Amendment to the United States
Constitution. See Garrison v. Louisiana, 379 U.S. 64, 70-73
(1964); see also I.M.L. v. State, 2002 UT 110, ¶ 23, 61 P.3d
1038. Under the United States Constitution, therefore, the truth
may be used as a defense in criminal libel cases regardless of
the motives for the offending statement's utterance. See
Garrison, 379 U.S. at 73. Thus, the plain language of the Utah
Constitution provides less protection in this area than the First
Amendment.7 The criminal libel clause, therefore, clearly
demonstrates that the Utah Constitution provides, not absolute,
but limited protection for the expression of ideas and opinions.
Under its terms, even the articulation of truthful yet libelous

7 Plaintiffs argue in their brief that, because this court
has granted greater protections against search and seizure under
the Utah Constitution than the United States Constitution, our
constitution naturally provides greater protection to the freedom
of speech than does the federal constitution. This appeal to a
separate clause in our constitution is unpersuasive in light of
the fact that, on its face, the Utah Constitution's freedom of
speech provisions specifically accord less protection than the
United States Constitution in the area of criminal libel.
No. 20020117
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ideas is constrained by the requirement that they be expressed,
not out of malice, but for a socially beneficial end.
¶29
Thus, from the text of the Utah Constitution, we see
that the clause defining the scope of activities protected by the
freedom of speech does not extend to "abuses" of that freedom.
We also see that the purely malicious expression of truthful yet
libelous statements is one example of what would be considered an
abuse of the freedom of speech by our constitution. The plain
text of the Utah Constitution, however, does not clearly indicate
whether nude dancing is a protected expression of thoughts and
ideas, or whether it is an abuse of this right and therefore
excepted from constitutional guarantees. In order to determine
what would be considered an abuse within the context of the Utah
Constitution, we therefore undertake an historical analysis to
discern the intent of the citizens of Utah in adopting this
limitation on the freedom of speech.
¶30
Chief Justice Durham criticizes our approach for the
undesirable results it might produce in other cases, specifically
pointing to the landmark United States Supreme Court decision of
Brown v. Board of Education, 347 U.S. 483 (1954), as one case
where our approach might produce a morally unacceptable result.
Infra ¶ 135. While we doubt that our approach would mandate
unacceptable outcomes in Brown and other cases,8 we do not accept

8 Prior to his appointment to the bench, Judge Michael W.
McConnell of the United States Court of Appeals for the Tenth
Circuit performed an extensive historical analysis of the
ratification process of the Fourteenth Amendment in his article
Originalism and the Desegregation Decisions, 81 Va. L. Rev. 947
(1995). He undertook the task in order to question the
assumption "that the ahistorical quality of Brown was
unavoidable, because an historical approach to the question would
have produced a morally unacceptable answer." Id. at 1140. This
is the same assumption suggested by Chief Justice Durham in her
dissent. Infra ¶¶ 134-35. McConnell's painstaking research and
analysis concluded that, contrary to popular belief, "school
segregation was understood during Reconstruction to violate the
principles of equality of the Fourteenth Amendment."
McConnell found that
[b]etween 1870 and 1875, both houses of
Congress voted repeatedly, by large margins,
in favor of legislation premised on the
theory that de jure segregation of the public
schools is unconstitutional. The
desegregation bills never became law because,
(continued...)
13
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the broader contention, suggested by Chief Justice Durham, that
outcomes should dictate our approach. Ultimately, our historical
approach gives proper deference to the citizenry's exercise of
sovereignty and political power in granting limited powers to the
state government through the enactment of the Utah Constitution.
If the electorate finds certain outcomes dictated by this
approach unacceptable, it can again wield its precious political
power to counteract the actions of the legislature or, if
necessary, amend the offending language of the Utah Constitution.
We now use this approach to discern the intent of the framers of
the Utah Constitution.
C. The History of the Freedom of Speech Provisions at
the Time of Utah's Constitutional Convention
¶31
The drafters of the Utah Constitution borrowed heavily
from other state constitutions and the United States
Constitution. Therefore, tracing the genealogy of Utah's freedom
of speech clauses to their progenitors sheds light on the
framers' intent in adopting particular provisions. The following
discussion illustrates that Utah's decision to limit the freedom
of speech, by holding citizens responsible for the abuse of that
right, finds its roots in the English common law.
¶32
At the time of our nation's founding, the idea that the
freedom of speech was subject to some limitation found popular
expression in the writings of Blackstone. In this passage from

8 (...continued)
for procedural reasons, a two-thirds majority
of the House of Representatives was required
for final passage. Even so, the
Reconstruction Congress passed legislation
prohibiting segregation of inns, theaters,
railroads, and other common carriers, and
rejected legislation that would have
countenanced segregated education on a
separate-but-equal basis. The Court in Brown
refused to "turn the clock back." But had it
done so, it would have discovered strong
support for its holding--stronger than the
dubious "modern authority" on which the Court
relied.
McConnell, supra note 10, at 1140.
In McConnell's view, an historical approach would not only
have been appropriate in Brown, it would have been a "powerful
judicial assault on the Jim Crow laws of the South." Id. at 955.
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14

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his Commentaries, first published between 1765 and 1769,
Blackstone famously declares:
[W]here blasphemous, immoral, treasonable,
schismatical, seditious, or scandalous libels
are punished by the English law, some with a
greater, others with a less degree of
severity; the liberty of the press, properly
understood, is by no means infringed or
violated. The liberty of the press is indeed
essential to the nature of a free state: but
this consists in laying no previous
restraints upon publications, and not in
freedom from censure for criminal matter when
published. Every freeman has an undoubted
right to lay what sentiments he pleases
before the public: to forbid this, is to
destroy the freedom of the press: but if he
publishes what is improper, mischievous, or
illegal, he must take the consequence of his
own temerity. . . . Thus the will of
individuals is still left free; the abuse
only of that free will is the object of legal
punishment. . . . [T]he press cannot be
abused to any bad purpose, without incurring
a suitable punishment . . . .
William Blackstone, 4 Commentaries *151­53 (emphasis in
original). Thus, the principle of limited freedom of speech in
the Utah Constitution has its roots in Blackstone's formulation
of the common law, which prohibits prior restraints on
publications, but reserves for the state the power to punish
publications considered to be an abuse of the liberty of the
press, including "immoral" libels.9
¶33
This Blackstonian construction of the freedom of
speech, however, was not used in the earliest state constitutions

9 Blackstone's prohibition of prior restraints is commonly
viewed as forbidding the establishment of a governmental body
that censored works before they were allowed to be published.
The South Salt Lake ordinance is not a prior restraint upon
speech. No board of censors is established to preview dance
routines and costumes in order to judge which are deemed
acceptable and which are not. The ordinance simply makes it
unlawful to "[a]ppear in a state of nudity before a patron on the
premises of a sexually oriented business." South Salt Lake City,
Utah, Mun. Code § 5.56.310 (2005).
15
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of the revolutionary period. Other voices from England's
intellectual tradition initially proved to be more influential on
the constitutional law in our emerging nation. Of particular
importance were Trenchard and Gordon, who published a series of
letters between 1720 and 1723, collectively known as Cato's
Letters, that argued for more extensive rights of expression
without fear of government reprisal. See Ex parte Tucci, 859
S.W.2d 1, 65 (Tex. 1993) (Phillips, C.J., concurring). One
commentator has even described these essays as "`the most
popular, quotable, esteemed source of political ideas in the
colonial period.'" David A. Anderson, The Origins of the Press
Clause, 30 UCLA L. Rev. 455, 491 (1983) (quoting C. Rossiter,
Seedtime of the Republic 141 (1953)). Indeed, our nation's
earliest notion of the freedom of speech probably "was closer to
Cato's than Blackstone's." Tucci, 859 S.W.2d at 66 (Phillips,
C.J., concurring).
¶34
Cato's Letters were popular enough in the period
leading up to the Revolutionary War that the leading radical
newspaper in Massachusetts, the Boston Gazette, republished
Trenchard and Gordon's essays in 1768. Anderson, supra ¶ 33, at
463. The principles espoused in Cato's Letters were put to the
test later that same year, when the Boston Gazette published an
article critical of the royal governor, who then asked the
colonial legislature to refer the matter to a grand jury for
prosecution as seditious libel. Id. "The House, dominated by
the radical leader Sam Adams, refused to do so and instead
adopted a resolution" which drew upon language from Cato's
Letters: "The Liberty of the Press is a great Bulwark of the
Liberty of the People: It is, therefore, the incumbent Duty of
those who are constituted the Guardians of the People's Rights to
defend and maintain it." Id. (internal quotation marks omitted).
¶35
As the colonies declared their independence from Great
Britain, this bulwark metaphor, taken from Essay No. 15 of Cato's
Letters, entitled, "Of Freedom of Speech: That the same is
inseparable from Publick Liberty," 1 Cato's Letters 96 (3d ed.
1969), found its way into a few of the new states' constitutions.
Of the nine states that explicitly protected the freedom of the
press in this early period, none adopted the qualifying language
from Blackstone. See Tucci, 859 S.W.2d at 67 (Phillips, C.J.,
concurring). Two of these states, however, adopted the "bulwark
of liberty" language from Cato. Anderson, supra ¶ 33, at 492.
The influential Virginia Bill of Rights of 1776 read: "That the
freedom of the press is one of the great bulwarks of liberty, and
can never be restrained but by despotic governments." Va. Const.
Bill of Rights, § 12 (1776). Later that same year, North
Carolina adopted a very similar provision in its Declaration of
Rights: "That the freedom of the press is one of the great
No. 20020117
16

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bulwarks of liberty, and therefore ought never to be restrained."
N.C. Const. Declaration of Rights XV (1776).
¶36
Of the early state constitutions, however, the
Pennsylvania Constitution of 1776 contained one of the broadest
statements of the freedom of speech of the original thirteen
states. Robert F. Williams, The State Constitutions of the
Founding Decade: Pennsylvania's Radical 1776 Constitution and its
Influences on American Constitutionalism, 62 Temp. L. Rev. 541,
555 (1989). Of the original state constitutions, Pennsylvania's
constitution was the only one to explicitly mention the general
freedom of speech, distinct from the more specific freedom of the
press enumerated in other state constitutions. 1 Friesen, supra
¶ 26, § 5-2(a); Anderson, supra ¶ 33, at 465. It provided that
"the people have a right to freedom of speech, and of writing,
and publishing their sentiments; therefore the freedom of the
press ought not to be restrained." Anderson, supra ¶ 33, at 465
(internal quotation marks omitted). Pennsylvania's 1776
provision, with its plenary and unqualified formulation of the
freedom of speech, even served as a model for the freedom of
speech component of James Madison's initial proposal to Congress
for the First Amendment.10
¶37
As the revolutionary fervor in the United States
cooled, however, the broader ideas about the limits of the
freedom of speech right embodied in the revolutionary
constitutions were blunted by the more conservative Blackstone
formulation of the freedom of the press.11 Even the freedom of
speech clause of the Pennsylvania Constitution was no exception
to this trend, as the once plenary right of expression became

10 Madison's proposal incorporated elements of the
Pennsylvania Constitution as well as the "bulwarks of liberty"
language from the Virginia Constitution: "The people shall not
be deprived or abridged of their right to speak, to write, or to
publish their sentiments; and the freedom of the press, as one of
the great bulwarks of liberty, shall be inviolable." Anderson,
supra ¶ 33, at 473, 477-78.

11 Blackstone's "responsibility for abuse" language
ironically first appeared in the once revolutionary Pennsylvania
Constitution. 1 Friesen, supra ¶ 26, § 5-2(a). In 1790, the
Federalist Party in that state replaced the radical 1776
constitution with a much "more conservative version." Id.
Overall, the 1790 constitution rejected the radically democratic
ideology of the 1776 constitution and was a defeat to the liberal
Whig ideology that had infused it. Ex parte Tucci, 859 S.W.2d 1,
68 (Tex. 1993) (Phillips, C.J., concurring).
17
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qualified by the Blackstonian addendum requiring responsibility
for abuse: "The free communication of thoughts and opinions is
one of the invaluable rights of man; and every citizen may freely
speak, write, and print on any subject, being responsible for the
abuse of that liberty." Pa. Const. art. IX, § 7 (1790). In view
of the liberal and unqualified nature of the 1776 clause, the
addition of this Blackstonian limitation is no empty formulation,
but represents a shift to a more limited freedom of speech right.
¶38
During the nineteenth century, as states were added to
the Union and the original thirteen states began to revise their
constitutions, the vast majority of the states adopted a
"responsibility for abuse" provision. As of the year 2000, 43
state constitutions contained the "freedom of speech" tempered by
a "responsibility for abuse" clause. 1 Friesen, supra ¶ 26, at
§§ 5-85 through 5-96. Even the Virginia and North Carolina
Constitutions, with their rhetorical nods to the radical Cato's
Letters, were swept up in this trend toward limited freedom of
speech rights. While both maintained the "bulwarks of liberty"
metaphor in their constitutions, North Carolina, in 1868, and
Virginia, in 1870, qualified their broad freedom of speech
protections with responsibility for abuse language.12 Tucci, 859
S.W.2d at 161-62, 177-78. Although West Virginia is currently
one of the seven states without this construction, the citizens
of that state chose to revise their constitution in 1872 to
specifically list exceptions to its freedom of speech guarantees:
"`No law abridging the freedom of speech, or of the press, shall
be passed; but the Legislature may by suitable penalties,
restrain the publication or sale of obscene books, papers or
pictures, and provide for the punishment of libel, and defamation
of character . . . .'" Id. at 179-80 (quoting W. Va. Const.
art. III, § 7 (1872)).

12 In 1868, the North Carolina Constitution was amended to
read: "The freedom of the press is one of the great bulwarks of
liberty, and, therefore, ought never to be restrained, but every
individual shall be held responsible for the abuse of the same."
N.C. Const. art. I, § 20 (1868). Even Virginia, which had
perhaps the most adamant rhetoric delineating the absolute nature
of the freedom of speech in its freedom of speech clause, amended
its constitution to explicitly acknowledge exceptions to even its
ardent language. In 1870, Virginia amended its freedom of speech
provision to read: "That the freedom of the press is one of the
great bulwarks of liberty, and can never be restrained but by
despotic governments; and any citizen may speak, write, and
publish his sentiments on all subjects, being responsible for the
abuse of that right." Va. Const. art. I, § 12 (1870).
No. 20020117
18

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¶39
This wave of state constitutional provisions providing
limited protections for the freedom of speech reflects what one
of our founding fathers saw as the states' greater authority to
regulate speech. As President Thomas Jefferson wrote in 1804:
Nor does the opinion of the
unconstitutionality and consequent nullity of
[the Sedition Act of 1798] remove all
restraint from the overwhelming torrent of
slander which is confounding all vice and
virtue, all truth and falsehood in the U.S.
The power to do that is fully possessed by
the several state legislatures. It was
reserved to them, and was denied to the
general government, by the constitution
according to our construction of it. While
we deny that Congress have [sic] a right to
[control] the freedom of the press, we have
ever asserted the right of the states, and
their exclusive right, to do so. . . . In
general the state laws appear to have made
the presses responsible for slander as far as
is consistent with their useful freedom.
Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804),
in The Adams-Jefferson Letters 279 (Lester J. Cappon ed., 1988).
¶40
In sum, when the Utah framers chose to include
"responsibility for abuse" in their formulation of the state's
freedom of speech provisions, they chose a phrase with a long
history of preserving the power of the state to regulate speech
under certain historical exceptions. The foregoing history
demonstrates that, rather than embracing more liberal ideas of
the freedom of speech, the "responsibility for abuse" phrase
articulates a conservative limitation upon the constitutionally
granted freedom of speech right. This limitation, in turn, can
be traced back to Blackstone's Commentaries, which specifically
preserve the capacity of the state to restrict "immoral"
speech.13

13 Contemporary with the passage of Utah's constitution,
several states with constitutions containing similar "abuse"
clause language limiting the freedom of speech recognized that
limitation's roots in English common law. For example, a scant
five months after the citizens of Utah voted their constitution
into effect, the California Supreme Court interpreted its very
similar constitutional freedom of speech clause by acknowledging
(continued...)
19
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D. The History and Context of Utah's Adoption of Its
Freedom of Speech Provisions
¶41
Historical analysis of Utah's adoption of the freedom
of speech clause reveals more precisely the parameters of its
protections. Utah's constitutional convention provides some
indication of the framers' intent in drafting our freedom of
speech provisions. More importantly, though, the minutes of the
convention direct our analysis to an examination of the common
law and statutory law then in effect in order to discern the
values and policy judgments of the Utah citizens who ratified our
constitution.
1. The Utah Constitutional Convention
¶42
The minutes of the 1895 Utah constitutional convention
point to the fact that the framers of our constitution also
envisioned a limited freedom of speech. When the chairman of the
committee that wrote the declaration of rights presented the
first draft to the convention as a whole, he emphasized the
balance it sought to maintain between preserving important rights
and not binding the hands of the legislature to carry out the
will of the people. Thus, although the committee strove to
enumerate fundamental rights, it also recognized that "if, on the
other hand, we have inserted rights which ought to be left to the
Legislature, we shall not be offended if they are stricken out."
Proceedings, supra ¶ 13, at 200.
¶43
The debates over the freedom of speech clauses centered
on this tension between protecting rights and allowing the
legislature the freedom to make laws according to the will of the
people. Although there was no substantial debate over the
liberty and responsibility clause, there was extensive debate
over the criminal libel clause in section 15 of article I. Id.
at 319­23. This debate highlights the limited nature of the
freedom of speech protections contained in the Utah Constitution
as well as the deference the delegates gave to the common law.

13 (...continued)
its roots in a passage from Blackstone. Dailey v. Super. Ct., 44
P. 458, 459-60 (Cal. 1896). Several other state courts have
subsequently noted this connection to their own constitutional
provisions containing the abuse qualification. See State v.
Jackson, 356 P.2d 495, 499­500 (Or. 1960); William Goldman
Theatres, Inc. v. Dana, 173 A.2d 59, 62 (Pa. 1961); Tucci, 859
S.W.2d at 61 (Phillips, C.J., concurring).
No. 20020117
20

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¶44
At the behest of members of the Utah Press Association,
Charles Goodwin, a lawyer and, for the previous fifteen years,
the editor of The Salt Lake Tribune, offered a proposal for
section 15 that differed in three respects from the original.14
Id.; Jean Bickmore White, Charter for Statehood: The Story of
Utah's State Constitution 110 (1996). First, Goodwin proposed to
qualify the governmental restriction clause by repeating the
responsibility for abuse clause. Immediately after the
restriction on laws that "abridge or restrain the freedom of
speech," Goodwin inserted the limiting phrase, "but all persons
shall be responsible for the abuse of the privilege."
Proceedings, supra ¶ 13, at 320. Thus, even Goodwin, the editor
of a newspaper considered to be the leading critic of the state's
dominant religion and a natural ally of a robust freedom of
speech provision,15 recognized the limited nature of the freedom
of speech. Second, the criminal libel protections were extended
to civil libel suits as well. Id. Third, the plaintiffs in

14 The proposed amendment read:
No law shall be passed to abridge or
restrain the freedom of speech or of the
press, but all persons shall be responsible
for the abuse of the privilege.
In all trials for libel the truth may be
given in evidence and shall be a sufficient
defense, 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, and the jury shall have the
right to determine the law and the facts.
Upon instituting suit for damages for libel,
plaintiff shall file bonds for costs or plead
insolvency.
Proceedings, supra ¶ 13, at 320.

15 The Salt Lake Tribune, which ironically began in 1870
under the name Mormon Tribune, quickly established itself as the
voice of the non-Mormon minority in the state. West v. Thomson
Newspapers, 872 P.2d 999, 1013-14 (Utah 1994). Throughout its
early years, the newspaper expressed often harsh criticism of its
leading competitor, the Deseret News, and the Mormon church
leaders. See id. at 1013; Soc'y of Separationists, 870 P.2d at
925­26. Goodwin became the editor of The Salt Lake Tribune in
1880 and often criticized the Mormon church through his paper.
White, supra ¶ 44, at 110. After the church officially abandoned
the practice of polygamy in 1890, however, he espoused a somewhat
more conciliatory stance. Id.
21
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civil suits would have to file bonds for costs or plead
insolvency. Id.
¶45
While the first and third modifications received no
comment, the second modification extending constitutional
protections to civil cases sparked an intense debate over the law
of civil libel. Id. at 319-23. Goodwin argued that it was
necessary to explicitly extend protections to civil suits because
judges would interpret section 15 as it then stood to mean that
the truth could not be used as a defense in civil suits. Id. at
320. Charles Varian opposed the proposed amendment because, in
his view, the amended version would unintentionally curtail then-
existing rights. Id. Lecturing the delegates about the
historical roots of the law of libel in the English common law,
Varian noted that the proposed section would provide truth as a
defense in civil suits only where good motives and justifiable
ends could be proven, whereas, under the common law, truth was an
unqualified defense in civil cases. Id. at 320-23.
¶46
The proposed amendment was ultimately defeated, id. at
322, but, as is often the case in interpreting convention votes,
it is difficult to discern the intent of the delegates in doing
so. It is impossible to tell with any degree of certainty
whether the delegates were rejecting what Goodwin perceived to be
increased protections to the freedom of speech or whether they
were rejecting what Varian perceived to be an unintended
hindrance to that same freedom. Yet a third possibility is that,
confused by the complicated legal history, the delegates simply
chose to stick with the status quo as the safest course of
action. Whatever the delegate's motives, Goodwin clearly saw
this as a defeat for the freedom of speech. In fact, he even
proposed that section 15 be stricken from the constitution in its
entirety because "[a]s it is, I think the section is a menace to
everyone who publishes a newspaper in this State." Id. at 322.
This extreme measure did not pass. Id. at 323.
¶47
Although the meaning of the vote on Goodwin's amendment
is ambiguous at best, another amendment was proposed and voted on
which allows us to draw a conclusion about the intent of the
framers with more confidence. Nathaniel Kimball proposed an
amendment that guaranteed protections to newspapers from civil
suits without the defects of the Goodwin amendment by adding to
the end of section 15 the clause, "and in civil prosecutions for
libel the truth may be given in evidence, and if it shall appear
to the jury that the matter charged as libelous is true, it shall
be a complete defense." Id. at 323. This amendment, which
unambiguously increased free speech protections, was rejected by
the delegates, id., indicating that they intended limited
constitutional protection of that right. Thus the framers of the
No. 20020117
22

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Utah Constitution left the regulation and protection of civil
libel to the legislature and the common law.
¶48
Perhaps the more relevant lesson to be drawn from the
debate over section 15 is the degree to which the framers relied
on and followed the common law in drafting the state's freedom of
speech provisions. Varian, in particular, went into great detail
in explaining the history and development of the common law in
England. This reliance upon the common law indicates that the
delegates themselves saw the common law as establishing the
boundaries of the freedom of speech.
2. The Common Law and Statutory Law in Effect at the Time the
Freedom of Speech Provisions Were Adopted
¶49
The framers' reliance on the common law reinforces a
well established principle that, in order to discern the outer
limits of the freedom of speech, we must look to common law
sources.16 This court has previously noted the common law

16 Speaking of the common law's influence on state
constitutional provisions that protect the freedom of speech,
Thomas Cooley wrote:
They do not create new rights, but their
purpose is to protect the citizen in the
enjoyment of those already possessed. We are
at once, therefore, turned back from these
provisions to the common law, in order that
we may ascertain what the rights are which
are thus protected, and what is the extent of
the privileges they assure.
Cooley, Constitutional Limitations, supra ¶ 13, at 416­17.
The U.S. Supreme Court has also recognized this principle in
interpreting the Bill of Rights:
The law is perfectly well settled that the
first ten amendments to the Constitution,
commonly known as the Bill of Rights, were
not intended to lay down any novel principles
of government, but simply to embody certain
guaranties and immunities which we had
inherited from our English ancestors, and
which had from time immemorial been subject
to certain well-recognized exceptions arising
from the necessities of the case. In
incorporating these principles into the
fundamental law there was no intention of
disregarding the exceptions, which continued
(continued...)
23
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sources of Utah's constitutional provisions, stating as follows:
The warp and the woof of the law in the
Territory was the common law. The volumes of
the Supreme Court Reports for the Territory
of Utah are replete with the application of
common law principles in all kinds of
property, personal injury, and contract
cases, as well as on procedural issues.
Indeed, various provisions of the Utah
Declaration of Rights cannot be understood
without reference to the common law and the
history of Anglo-American law. For example,
the provisions in the Declaration of Rights
with respect to the right of free speech, the
privilege against self-incrimination, the
right to jury trial, etc., are all rooted in,
and grew out of, the common law heritage that
defines the scope and meaning of many
provisions in both the Utah and the United
States Constitutions. Indeed, this Court has
often resorted to the common law in
construing various provisions in the Utah
Declaration of Rights.
Craftsman Builder's Supply, Inc. v. Butler Mfg. Co., 1999 UT 18,
¶ 54, 974 P.2d 1194 (Stewart, J., concurring). Thus, we must
look to the common law to determine if nude dancing fits within
the scope and protection of Utah's freedom of speech provisions.
¶50
The laws in effect in Utah in 1895, both statutory and
common law, give us the clearest picture of the values and policy
judgments of the people of Utah when they voted for their
constitution. These laws reflect the boundaries that the
citizens of Utah conceived between the conflicting societal
values of individual rights and the power of a duly elected
government to carry out the will of the people. Both the
statutes drafted by the territorial legislature and the earliest
laws generated by the new state legislature reflect the values of
the citizens who voted their local representatives into office.
The common law then extant also represents the accepted legal

16 (...continued)
to be recognized as if they had been formally
expressed.
Robertson v. Baldwin, 165 U.S. 275, 281 (1897), partially quoted
in Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 34 (1995)
(Scalia, J., concurring).
No. 20020117
24

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heritage that the people of Utah brought with them when they
immigrated to this state. Indeed, the people of this state,
through their legislature, explicitly adopted the common law soon
after statehood.17
¶51
Both the common law and the statutory law in force at
the time of the formation of our constitution demonstrate that
obscene speech was not protected by the freedom of speech. As
already noted, Blackstone, the original source of the liberty and
responsibility clause of our constitution, specifically stated
that the punishment of "immoral" speech did not constitute an
infringement of the liberty of the press. Blackstone, supra
¶ 32, at *151-53. Lest this connection to Blackstone be
dismissed as a hollow and formalistic reference to long forgotten
principles, the most respected constitutional scholar at the time
of the drafting of the Utah Constitution noted that the freedom
of speech contained in state constitutions did not protect
obscenity. Thomas Cooley, an authority quoted on the floor of
the Utah constitutional convention, noted that the freedom of the
press signifies
the liberty to utter and publish whatever the
citizen may choose, and to be protected
against legal censure and punishment in so
doing, provided the publication is not so far
injurious to public morals or to private
reputation as to be condemned by the common-
law standards, by which defamatory
publications were judged when this freedom
was thus made a constitutional right. . . .
Blasphemous and indecent publications, and
the exhibition of indecent pictures and
images, were always punishable at the common
law . . . .
Thomas M. Cooley, The General Principles of Constitutional Law in
the United States of America 285-86 (2d ed. 1891). While, in
this passage, Cooley specifically refers to the freedom of the
press clause in the United States Constitution, he elsewhere
makes the same observation of the freedom of speech provisions
found in state constitutions. Cooley, Constitutional
Limitations, supra ¶ 13, at 422.

17 "The common law of England, so far as it is not repugnant
to, or in conflict with the constitution and laws of the United
States, or the constitution and laws of this state, shall be the
rule of decision in all the courts of this state." Utah Rev.
Stat. § 2488 (1898).
25
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¶52
The United States Supreme Court in decisions
contemporaneous to the drafting of the Utah Constitution has
reflected this view in dicta. See Robertson v. Baldwin, 165 U.S.
275, 281 (1897) ("Thus, the freedom of speech and of the press
(art. I) does not permit the publication of libels, blasphemous
or indecent articles, or other publications injurious to public
morals or private reputation."); In re Rapier, 143 U.S. 110, 134
(1892) ("We cannot regard the right to operate a lottery as a
fundamental right infringed by the legislation in question; nor
are we able to see that Congress can be held, in its enactment,
to have abridged the freedom of the press. . . . [T]he government
declines itself to become an agent in the circulation of printed
matter which it regards as injurious to the people."); Ex parte
Jackson, 96 U.S. 727, 736 (1878) ("In excluding various articles
from the mail, the object of Congress has not been to interfere
with the freedom of the press, or with any other rights of the
people; but to refuse its facilities for the distribution of
matter deemed injurious to the public morals."). In keeping with
the Court's language on the matter, at least one federal court in
the decade in which the Utah Constitution was written and
ratified held directly that punishment for the distribution of
obscene materials did not run afoul of the First Amendment.
United States v. Harmon, 45 F. 414, 416 (D. Kan. 1891), rev'd on
other grounds, Harman v. United States, 50 F. 921 (C.C.D. Kan.
1892).
¶53
These federal decisions not only articulate the widely
accepted view of the common law in the late nineteenth century,
they also demonstrate the prevailing view of the scope of freedom
of speech rights in that era. Consistent with those federal
decisions, this court has also held that the Utah Constitution,
like the United States Constitution, does not protect obscene
speech. See W. Gallery Corp. v. Salt Lake City Bd. of Comm'rs,
586 P.2d 429, 430 (Utah 1978). After analyzing statutes in
effect at the time of the drafting of their constitutions,
several of our sister states with similar constitutional
provisions have also held that their constitutions do not protect
obscenity. See People v. Ford, 773 P.2d 1059, 1064­66 (Colo.
1989); Fordyce v. State, 569 N.E.2d 357, 360-62 (Ind. Ct. App.
1991); State v. Marshall, 859 S.W.2d 289, 294 (Tenn. 1993).
¶54
Thus, it was a well established and widely recognized
principle of constitutional law at the time of the drafting of
the Utah Constitution that obscene speech was not protected
speech, and this court has explicitly ruled that our constitution
does not shield it from government regulation. There remains,
however, the specific question of whether nude dancing falls
within the unprotected category of obscenity or whether the
No. 20020117
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citizens of Utah intended to protect it under its free speech
provisions.
¶55
The laws in effect at the time of the Utah
Constitution's ratification clearly indicate that, if the people
of this state ever considered nude dancing to be speech, it must
have been a punishable abuse of that freedom. Laws enacted soon
after the Utah Constitution was ratified clearly forbade
activities such as nude dancing. In 1898, the Utah legislature
enacted a law making 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, theatres excepted," or for a female to engage
in such activity. Utah Rev. Stat. § 4244 (1898).
¶56
Justice Nehring contends that the purpose of this and
other similar statutes was "to regulate gender roles, not
expression." Infra ¶ 189. We disagree. Although the
legislature may have been concerned with regulating gender roles,
it was also clearly interested in regulating the content of
various activities, including dancing, as evidenced by several
gender-neutral statutes. For example, even before the passage of
Utah's constitution in 1888, the very same territorial statute
that forbade speech traditionally punishable as obscene under the
common law also forbade any person to "[e]xpose[] his person" or
procure[], counsel[] or assist[] any person
so to expose himself, or to take part in any
model artist exhibition, or to make any other
exhibition of himself to public view, or to
the view of any number of persons, such as is
offensive to decency, or is adapted to excite
to vicious or lewd thoughts or acts.
Compiled Laws of Utah § 4527(1)-(3) (1888). Thus, when the Utah
Constitution was ratified, it was illegal for either men or women
to expose themselves to even willing participants in such a way
as to excite lewd thoughts. Such activities were lumped together
into the same category as obscene speech contained in print or
pictures, which traditionally did not enjoy constitutional
protection. After Utah attained statehood in 1896, a commission
was appointed to revise the territorial laws and "make them
conform to the constitution." Utah Rev. Stat. at iii. In 1897,
the state legislature adopted statutes identical to the
aforementioned territorial laws, expressing its approval of their
conformity to the new state constitution. Utah Rev. Stat.
§ 4247(1)-(3) (1898).
27
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¶57
Thus, in 1895, when the people of our state ratified
our constitution, they considered nudity that was offensive to
decency or that excited lewd thoughts to be unacceptable in Utah.
In 1897, the state legislature, duly elected by this state's
citizens, reaffirmed the judgment that activities such as nude
dancing could be prohibited by the state of Utah. In view of
this historical evidence, we conclude that those who framed and
ratified Utah's constitution did not intend to extend its
protections to nude dancing.
¶58
In summary, the scope of the constitutional provisions
guaranteeing the right of Utah citizens to "communicate freely
their thoughts and opinions, being responsible for the abuse of
that right," is unclear from the constitutional text. In
interpreting their scope, it is therefore appropriate for us to
consider historical context and other evidence of the framers'
intent. The debate over the provisions at issue establishes that
the framers looked to the common law to provide the boundaries of
the right to free expression. And both the common and statutory
law in effect at the time demonstrate that nude dancing does not
fall within the scope of constitutionally protected
communication. We accordingly hold that nude dancing in
plaintiffs' sexually oriented businesses is not entitled to
protection under the freedom of expression clauses of the Utah
Constitution.
II. PLAINTIFFS' OTHER CLAIMS
¶59
In addition to their freedom of speech argument, the
Businesses claim that they have been the victims of an
unconstitutional "taking" without due process of law. This
argument is based on their assertion that they had a property
right in their business licenses that allowed nude dancing on the
premises, that those licenses were eliminated as a class, and
that the Businesses were unable to obtain a new class of license
allowing partial nudity and serving alcohol because of a
restriction on the number of licenses available. The City
counters that due process simply requires notice and the
opportunity to be heard with respect to the prior license, and
"taking" has nothing to do with application for the new licenses
in this instance. We agree with the City.
¶60
Although this court has recognized that there is a
property interest in a business license, the requirements of due
process can be satisfied via notice and a hearing, both of which
occurred here. See Dairy Prod. Servs., Inc. v. City of
Wellsville, 2000 UT 81, ¶ 49, 13 P.3d 581. Due process is not
implicated by the City's failure to award additional alcohol
licenses to the Businesses, which would allow them to feature
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semi-nude dancing and alcohol. Although granting such licenses
may increase the likelihood of prosperity for the Businesses,
denying such licenses does not contravene due process.
¶61
The Businesses also assert that the City was without
authority to enact the ordinance at issue because the legislature
has preempted the field. The legislative statute in question
addresses nudity in "places open to public view"; the Businesses
contend that because the City's ordinance bans nudity only in
nude dancing establishments, it is inconsistent with, and
preempted by, the state statute. We disagree.
¶62
The City has ample authority to enact the ordinance,
and it is not in conflict with any state law. See Call v. City
of W. Jordan, 606 P.2d 217, 219 (Utah 1979). Pursuant to Utah
Code section 10-8-84 (2003), cities have the power to regulate
businesses through licensing policies and the enactment of
ordinances. Because it is well established that Utah
municipalities have the right to legislate on the same subject as
a state statute where the general welfare power is at issue, we
reject the Businesses' argument that the legislature has
preempted the field or that the ordinance conflicts with state
law.
¶63
We finally turn to plaintiff Reid's claim that the
district court erred in granting summary judgment against him.
Plaintiff Reid operates a lingerie and novelty store. While the
other plaintiffs challenged the ordinance on the basis that its
ban on nude dancing violated the freedom of expression guarantees
of the Utah Constitution, Reid challenged the ordinance on
vagueness grounds. The ordinance applies to those businesses
that derive a "significant or substantial" portion of their
revenues from the sale of adult products or that devote a
"substantial section" of their sales or display space to such
products. Reid's complaint alleged that this language was
unconstitutionally vague because it was impossible for him to
determine whether the ordinance applied to him. On appeal, Reid
asserts that the district court erred in granting summary
judgment against him because none of the briefing or argument in
the district court analyzed his vagueness claim. We agree.
¶64
Because a summary judgment presents questions of law,
we accord no deference to the ruling of the district court.
Rather, we review it for correctness. Salt Lake County v. Metro
W. Ready Mix, Inc., 2004 UT 23, ¶ 11, 89 P.3d 155. We conclude
that the district court's summary judgment order was overly
broad. When the parties filed cross-motions for summary judgment
on the nude dancing issues, none of them presented any facts or
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argument with respect to Reid's vagueness claim.18 In fact, none
of them mentioned the vagueness claim at all. Nevertheless, the
district court's summary judgment order erroneously stated that
"[p]laintiffs' complaint and causes of action are dismissed on
the merits, with prejudice." Plaintiff Reid attempted to remedy
this overly broad order by filing a motion seeking to dismiss his
vagueness claim without prejudice, thereby preserving his ability
to litigate it on the merits in the event that the City later
attempts to enforce the ordinance against him. The district
court, however, denied Reid's motion on the basis that the
summary judgment motions had not carved out Reid's vagueness
claim. We conclude that such an approach is erroneous. The fact
remains that none of the summary judgment filings purported to
include Reid's vagueness claim and that the record is devoid of
any factual or legal support for the district court's entry of
summary judgment on that claim. The parties were not required to
carve out a claim that was never even under consideration. We
accordingly direct that the district court's summary judgment
order be modified to reflect that the dismissal of Reid's
vagueness claim is without prejudice.
CONCLUSION
¶65
In light of historical evidence, it is inconceivable
that the framers of our constitution or the citizens of this
state intended to protect nude dancing under the constitutional
right of the freedom of speech. The framers of the Utah
Constitution chose a limited construction for the freedom of
speech that excepted from protection abuses of that right. This
constitutional construction has a long history of preserving the
power of the state to regulate speech under certain historical
exceptions to that right. It was widely recognized at the time
Utah's constitution was drafted that obscene speech was one of
the exceptions to constitutional freedom of speech protections.
Nude dancing, in particular, was criminalized by statutes in
effect both before and after our constitution was ratified by the
people of this state. Therefore, the citizens of Utah, having
expressed their disapprobation of such activities through such
statutes, clearly would have considered nude dancing to be
outside the scope of constitutionally protected communication.

18 The lack of focus on Reid's vagueness claim in the
summary judgment proceedings is probably explainable by the fact
that the City had informed Reid it would not require him to
obtain a sexually oriented business license. The City, however,
declined to stipulate to the inapplicability of the ordinance,
thereby preserving its ability to reevaluate its position at a
later time.
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¶66
In light of the clear disapprobation the people of our
state demonstrated for activities such as nude dancing, extending
free speech protections in this area would run contrary to the
intent of the framers of our constitution and the Utah citizens
who voted it into effect. Were we to do so, we would not be
interpreting our constitution, but substituting our own value
judgment for that of the people of Utah when they drafted and
ratified the constitution. It is not our place to do so. Social
values and public opinion on this matter no doubt fluctuate over
time, and as they do, the people of this state are free to allow
nude dancing through legislative enactments or even to amend our
constitution to extend protections over such activities through
the democratic process. Although Chief Justice Durham argues
skillfully for the protection of expression that society might
find distasteful, these arguments should be directed to elected
officials and expressed at the ballot box, not enforced through
the courts.
¶67
Accordingly, we reject plaintiffs' claims that the
ordinance violates the Utah Constitution's right to free
expression. We similarly reject plaintiffs' subsidiary claims
except plaintiff Reid's vagueness claim, which we conclude should
be dismissed without prejudice. In all other respects, we affirm
the decision of the district court.
---
¶68
Associate Chief Justice Wilkins and Justice Durrant
concur in Justice Parrish's opinion.
---
DURRANT, Justice, concurring:
¶69
Much of the greatness of our nation lies in our ongoing
struggle to advance, improve, and better ourselves both
individually and collectively. Our pluralistic system allows
countless individuals and myriad groups to seek to advance their
views of what makes for a better society and to oppose the views
of those who believe otherwise. The many contrasting ideas
competing for ascendancy in the public debate make for
tempestuous seas. Considering the intense conviction and passion
devoted to various ideals, it is no small accomplishment that our
nation has been able to navigate these seas in a largely peaceful
fashion.
¶70
As a nation, we now find ourselves with a combination
of freedom, wealth, and opportunity unmatched in world history.
In my view, the factor most responsible for this miraculous
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result is our nation's Constitution, which has provided a sound
framework for democratic debate and societal evolution while
simultaneously protecting certain rights from restriction by
ordinary political processes. The unquestioned importance and
force of the Constitution's terms has spurred perhaps the
greatest ongoing jurisprudential debate affecting this nation:
how are we to decide what the Constitution means? While the vast
majority of scholarly attention has been directed toward
answering this question in relation to the Federal Constitution,
the same debate rages throughout the states of this union, each
of which wrestles with the meaning of its own constitution. The
present case requires this court to grapple with the difficult
questions permeating the debate as to the proper method to follow
when interpreting our state constitution.
I. THE INTERPRETIVE TASK AT HAND
¶71
We are called upon to assess the constitutional
validity of a city ordinance prohibiting nude dancing in sexually
oriented businesses. Under federal constitutional law, such
dancing "falls only within the outer ambit of the First
Amendment's protection." City of Erie v. Pap's A.M., 529 U.S.
277, 289 (2000) (plurality opinion). Plaintiffs, which own
sexually oriented businesses affected by the ordinance, concede
that it would be difficult, if not impossible, to succeed in
arguing that the city's prohibition on nude dancing violates the
United States Constitution's protection of the right of free
speech.1 As a result, Plaintiffs have structured the current
litigation so as to focus exclusively on the protections afforded
by our state constitution.
¶72
The dispute in the present case, though nominally
limited to a handful of plaintiffs, is a manifestation of the
broader tension between the will of the majority in our
democratic society and those protections constitutionally
afforded the minority. As a general matter, the right of the
democratic majority to regulate and outlaw behavior ceases at the
point at which constitutionally protected rights are unduly
infringed. Where, as is demonstrated by the majority opinion,
historical evidence indicates that nude dancing in sexually
oriented businesses is not within the ambit of protected
communication under our state constitution, the proper role of
this court is to allow the democratic process to resolve issues

1 Indeed, some of Plaintiffs' dancers have litigated claims
under the federal free speech clause and lost in that effort.
Heideman v. S. Salt Lake City, 165 Fed. Appx. 627, 634 (10th Cir.
2006).
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pertaining to the restriction of that conduct. I therefore
concur in the majority opinion.
II. THREE APPROACHES TO CONSTITUTIONAL INTERPRETATION
¶73
I write separately to further explain the manner in
which I arrived at this conclusion. As noted above, the
fundamental question presented in this appeal is whether our
state constitution extends protection to nude dancing in sexually
oriented businesses. To answer this question, we must interpret
the relevant provisions of our state constitution and discern the
breadth of the protections provided therein. When faced with
such an interpretive task, our first step must be to determine
how we should discharge our interpretive function. In other
words, we must ascertain any mechanisms that are available to aid
us in our interpretive task and then decide which of those
mechanisms we may appropriately use. Almost all approaches to
constitutional interpretation purport to begin with the text of
the provision at issue. The crux of the quandary is therefore
determining where we, as judges, should look for guidance when
assessing the meaning of that text. Drawing on approaches
adopted and advocated in relation to the interpretation of the
federal constitution, and those previously employed by this
court, I see essentially three possible approaches to
constitutional interpretation, together with various combinations
thereof: (1) we can assign meaning to the text based on the
attitudes and views of contemporary society (the "contemporary-
context approach"); (2) we can assign meaning to the text based
on our own individual attitudes and views (the "subjective
approach"); or (3) we can assess the meaning of the text based on
the understanding and intent of those who drafted and ratified
the constitution (the "historical approach").2

2 The term "originalist" is commonly applied to the kind of
interpretive approach I have identified here and will be
explaining further. "Originalist" refers to the focus the
approach places upon the original meaning or intent of a
constitutional provision. That term has been the subject of
extensive scholarly debate and has come to include various
nuances of meaning and various schools of thought. Moreover, it
has come to be politically charged. An originalist
interpretation is often perceived to necessarily dictate a
politically conservative result. I have chosen to use the term
"historical approach" because I believe it is as descriptive as
"originalist" (it looks to the historical meaning of a
constitutional provision at the time of the constitution's
drafting and ratification), and I do not wish to suggest
(continued...)
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¶74
All three of these approaches ask the question "what
does the provision mean?" The contemporary-context approach asks
"what should the provision mean in the context of our modern
values and attitudes?" The subjective approach asks "what should
the provision mean according to the interpreting judge's own
personal values and attitudes?" The historical approach asks
"what did this provision mean to those who drafted and ratified
it?" While the answer to the first two questions would seem to
be a moving target, the answer to the last one, at least in
theory, is fixed. As I will explain hereafter, I believe that
the appropriate question is the last one.
A. The Contemporary-Context Approach
¶75
Turning first to the contemporary-context approach, it
can be argued that any interpretation of our constitution must be
cognizant of that document's present societal context. Adherents
to this approach consider the constitution a living, evolving
document that is malleable, sensitive to, and capable of
reflecting changing social conditions, attitudes, perceptions,
and trends. As a result, use of the contemporary-context
approach can lead to the elevation of an evolving or evolved
social view to special legal status, thereby
"constitutionalizing" a widely held social belief. Such an
approach relies on the premise that the constitution is a
document enshrining principles, the content of which can change
over time, and that it is the role of the judiciary to discern
the breadth of activity protected by constitutional principles in
contemporary society.
¶76
It is true that our state constitution is a document
that rarely delves too deeply into particulars. Instead, it can
be conceived of as a broad outline of our state structure,
enabling democratic functionality while compelling moral
reverence for the rights of those not in the majority. It can
certainly be argued that we should interpret the constitution to
give effect to the societal values that exist in that document,
independent of the words chosen to signify those values. In
other words, one may contend that, although the constitutional
language expressing the principle of free and unfettered speech
has remained the same, our society's conception of that
principle, or our society's belief as to what speech must be
protected to serve that principle, may have changed.

2 (...continued)
adherence to any particular strain of originalism. I intend the
term "historical approach" to mean no more and no less than the
meaning I ascribe to it in this opinion.
No. 20020117
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¶77
While the contemporary-context approach is not without
its appeal, and certainly does not lack for adherents, I find it
unsatisfactory for a number of reasons. First, it casts judges
in the role of opinion pollsters, a position I am skeptical
judges are necessarily qualified to undertake, as it requires
them to assess popular opinion and cultural trends. Second, and
more fundamentally, I am at a loss to discern the source of
judicial authority to conduct such a societal survey. I am aware
of no authorization, whether contained within the constitution or
otherwise, that grants judges the ability to shape the
constitution to match what they believe to be the changing
contours of our society. Third, molding the constitution to
reflect changing social attitudes, even if the judicial branch
were adequately equipped to recognize such changes, seems to be a
usurpation of the role the legislative branch is designed to play
in our government. Indeed, the legislative branch is the branch
of government that is expressly designed to adjust our legal
framework to reflect contemporary context. Accordingly, if
certain behavior is not granted protection by the federal or
state constitution, that does not end the debate as to whether
that behavior will be tolerated by society. The people remain
free to employ the democratic process to allow or prohibit such
behavior. If it so happens that the prevailing view of society
toward a certain behavior has altered over time, society is fully
empowered to implement that view through use of the democratic
process. Of course, the will of the majority is checked by
established constitutional protections. Our role as judges is to
identify and fortify the wall protecting those rights specified
in the constitution from majoritarian override.3
¶78
If the framers of the constitution chose not to include
a particular behavior within the constitution's protective
sphere, debate and action addressing that behavior should occur
in the democratic arena. Society should seek to resolve
disagreements concerning the proper scope of governmental
regulation of unprotected behavior through political debate and
contest, not judicial fiat. Our society is best served when the

3 Perhaps ironically, it is through the will of the majority
that minority rights gain protection. After all, the adoption of
a constitution is a majoritarian process and, due to the nature
of our government, minority rights are always in some risk of
curtailment. Amendment of our state constitution could
presumably be utilized to remove rights previously given
constitutional protection. If this conception of constitutional
government is taken to its logical conclusion, the only true
check on majoritarian power is the majority's own submission to
and reverence for constitutionally enshrined protections.
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line between judging and legislating is clearly drawn. Looking
to social attitudes in an attempt to shape the constitution
through interpretation strikes me as more akin to legislating
than judging, and I would therefore reject that approach to
constitutional interpretation.
B. The Subjective Approach
¶79
Turning to the second interpretive approach identified
above, the subjective approach, I admit that it is indeed
enticing to adopt an interpretive technique whereby we, as
judges, look to our own attitudes and views to discern the
contours of the protective boundary erected by our state
constitution. Under this approach, the constitution becomes an
instrument by which judges can implement their own social views,
irrespective of historical understanding or predominant modern
social attitudes, perceptions, or trends. Judges are human,
after all, and each judge no doubt has strong convictions as to
what makes for a better society. The inescapable presence of
those convictions has, I suspect, tempted many judges to strike
down a legislative act as unconstitutional because the act is
viewed, from a personal perspective, as wrongheaded or socially
harmful. Furthermore, when faced with majoritarian curtailment
of behavior that a reviewing judge believes to be in need of
protection as part of a humane and decent society, the temptation
to conclude that the right to engage in such behavior is
enshrined within the penumbra of our constitution's express
protections is powerful to say the least.
¶80
I do not discount the argument that judges following
the course set by their own moral compass when discharging their
judicial duties may be trusted and valuable stewards of public
policy. Judges are, after all, generally highly educated, well
intentioned, thoughtful, and (we hope) wise. Further, judges are
largely protected, at least in our state's system, from the ever-
changing political winds and are able to make policy
pronouncements with the benefit of a full hearing in which both
sides to a particular debate are given the opportunity to state
their case. If the hallmark of the judicial process is sound
reasoning conducted with the aim of arriving at the best possible
result, irrespective of political forces mounting against that
result, it is easy to see why many find the notion of entrusting
major social policy decisions to the judicial branch appealing.
¶81
Despite its allure, however, I also find the subjective
approach to constitutional interpretation unacceptable and
consider it even more dangerous than the contemporary-context
approach outlined above. Under the contemporary-context
approach, the judiciary would at least moor its social policy
No. 20020117
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pronouncements to either perceived majority views or, at the very
least, a perceived groundswell of support for a given policy
proposition. In contrast, a judge following the subjective
approach would wield virtually unchecked power to modify the
social contours of our society in a dramatic manner. Further,
although a judge operating under the subjective approach to
constitutional interpretation would be nominally constrained by
the text of the constitution, that constraint is drastically
minimized by the reality that the unambiguous communication of
ideas through the use of language is a difficult task. Given the
inadequacies of the written word and the judiciary's charged task
of finding meaning in the text of the constitution, a judge
operating under the subjective approach can utilize definitional
flexibility to rationally read personal beliefs into the
constitution. For example, a determined and creative judge can
expand the term "speech" or "communicate" to include virtually
any aspect of human conduct.
¶82
If the contemporary-context approach to constitutional
interpretation is more akin to legislating than judging, the
subjective approach to constitutional interpretation is more akin
to dictating than judging. Therefore, for the reasons outlined
above, I conclude that the subjective approach should be
rejected.
C. The Historical Approach
¶83
A judge operating pursuant to the third approach
outlined above, the historical approach, would look not to the
prevailing views of contemporary society or to his or her own
personal views on the questions of the day. Rather, under this
approach to constitutional interpretation, the judicial
enterprise is anchored to the text of the constitution as
understood and intended by its framers and the voters who
ratified it. Whatever other skills, talents, and insight judges
possess, interpreting the language of various texts is something
all judges are trained to do. We are frequently required to
interpret texts, whether they be regulations or laws promulgated
by the government or contracts between private parties. And it
is well established that our goal in interpreting these texts is
to give effect to the intent of the texts' creators. E.g., Burns
v. Boyden, 2006 UT 14, ¶ 19, 133 P.3d 370 (court rules); Allstate
Ins. Co. v. Wong, 2005 UT 51, ¶ 25, 122 P.3d 589 (contracts);
State v. Maestas, 2002 UT 123, ¶ 52, 63 P.3d 621 (statutes).
Therefore, application of this same interpretive approach to a
constitutional text is a task that we, as judges, are qualified
to accomplish, experienced with, and comfortable undertaking.
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¶84
Admittedly, the historical approach is less glamorous
than the first two approaches discussed above, which enable
judges to make dramatic contributions to society and shape the
social structure in a manner they deem beneficial. The judge
looking to the text of the constitution is engaged in a more
workmanlike function. Such a judge does not alter our society's
blueprint in an attempt to improve our societal project, but
merely ensures that the people of this state, the
constitutionally sanctioned architects of our society, are aware
of what the blueprint contains and are operating in accordance
with that document's terms. Under the historical approach,
judges are more referees than players in the grand political
game. While adopting the first or second approach to
constitutional interpretation could, in some instances, result in
a net benefit to society if judges' choices are truly wise and
clairvoyant, I believe that as a general rule the judicial branch
can best serve the people of this state by adopting a historical
approach to constitutional interpretation. This approach
provides stability to state government while remaining true to
the principle that it is the people of this state who should
ultimately determine how our society should be structured. When
a particular action of our state's government is challenged as
violative of our constitution, we should proceed in a methodical
fashion with a traditional textual analysis by testing the
challenged action against the intended meaning of the
constitution. We may disagree with an action taken by the
legislative or executive branch, we may find a statute or
regulation wrongheaded, even silly, but if the challenged act
does not impinge upon a constitutionally protected right, it is
not our place to void that act. Rather, we should strictly
adhere to our judicial function and allow the democratic process
to serve as the mechanism to resolve disagreements over social
policy.
¶85
In advocating the historical approach, I am not blind
to its attendant problems. At times, the intent of those who
drafted our constitution is difficult to discern, and even the
purest of adherents to the historical approach cannot wholly
avoid the influence of changing social attitudes and personal
views as to what is best for society. Beyond these apparent
difficulties, it is frequently argued that this interpretive
approach moors society to antiquated notions of what makes for a
healthy and productive society and that the dead hand of the
framers, who lived centuries ago, should not be given reign over
the living. While I acknowledge the real interpretive
difficulties encountered by judges applying this approach, I
regard the last argument as a red herring. While it is true
that, under the historical approach, our constitutional analysis
is focused on the understanding of those who drafted the document
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at a particular time, it does not follow that we are sentenced to
live in a static society. The democratic process remains
vibrant, flexible, and fully capable of responding to societal
change. Indeed, far from promoting a static society, a judiciary
constrained from constitutionalizing personally held values or
current social attitudes actually promotes societal flexibility.
¶86
Despite the difficulties that attend the historical
approach to constitutional interpretation, I see no other
workable alternative, no other alternative that would not
unnecessarily blur the lines between the branches of government,
and no better way of balancing the need for constitutional
protection of minority rights with the freedom of a democratic
people to shape their society as they see fit. It is for these
reasons that I conclude that a historical analysis of our state
constitution is the most appropriate interpretive course to
follow when confronted with constitutional questions.
III. THE FRAMERS DID NOT INTEND THE FREE SPEECH RIGHT
TO PROTECT NUDE DANCING IN SEXUALLY ORIENTED BUSINESSES
¶87
A review of our prior decisions demonstrates that "this
court has a very long history of interpreting constitutional
provisions in light of their historical background and the then-
contemporary understanding of what they were to accomplish." In
re Young, 1999 UT 6, ¶ 15 & n.5, 976 P.2d 581. Our decisions
have employed the following interpretive approach. As with other
texts, we start with the language of the constitutional provision
in question. In re Worthen, 926 P.2d 853, 866 (Utah 1996).
Where the language of the provision is plain, that is to say,
where its meaning as intended or understood by its framers is
beyond debate, we need proceed no further. See id. But when the
language is ambiguous, either as to its scope or otherwise, we
must necessarily broaden the scope of our inquiry. Id. When
looking beyond the language in question, we consider historical
evidence regarding textual development, sister state law, and
policy arguments relied upon by the framers in the form of
economic and sociological materials. See Soc'y of Separationists
v. Whitehead, 870 P.2d 916, 921 n.6 (Utah 1993). "Each of these
types of evidence can help in divining the intent and purpose of
the framers, a critical aspect of any constitutional
interpretation." Id. Nothing in this case suggests that a
departure from our customary use of the historical approach is
necessary, advisable, or even allowable.
¶88
Chief Justice Durham's dissenting opinion is
nevertheless bereft of any attempt to ascertain the intent of the
framers of the constitutional provisions at issue. The Chief
Justice justifies this by two arguments. First, she argues that
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the meaning of the free speech right is plain and that therefore
it is unnecessary to consider the intent of the framers. Second,
she appears to argue that reliance on the intent of the framers
is ill-advised because it can sometimes lead to bad results. In
his dissent, Justice Nehring accepts the historical approach but
argues that the historical record supports a natural-law
construction of the free speech right, which would offer some
protection to nude dancing in sexually oriented businesses. I
address each of these arguments in turn.
A. The Intent of the Framers Cannot Be Ignored by Asserting
that the Meaning of the Free Speech Right Is Plain
¶89
Although the Chief Justice superficially recognizes the
import of the framers' intent, infra ¶ 127, she avoids any real
inquiry into that intent by claiming that the provision at issue
is unambiguous. Specifically, she argues that because the Utah
Constitution itself plainly defines what constitutes free speech,
"it is not necessary to consult the framers in order to arrive at
the proper definition of free speech." Infra ¶ 130. Yet the
term she advances as conclusively defining speech--
"communication"--is by no means plain and requires interpretation
no less than does the term it purports to define.
¶90
The question of what constitutes speech under the
United States Constitution is one that has occupied judges and
scholars for over two centuries. No one could reasonably suggest
that the term is so clear as to preclude debate regarding its
meaning. Nor does the Chief Justice so suggest. She does
contend, however, that this famously ambiguous term is rendered
clear in the Utah Constitution because that document defines
"speech" as "communication." The obvious flaw in this reasoning
is that the term "communication" is no more amenable to easy
definition than is the term "speech." They are two words of the
same nature that beg interpretation. To argue that "speech" and
"communication" are words so clear as to preempt debate regarding
their meaning is no more tenable than it would be to make the
same argument regarding constitutional terms like
"establishment," "cruel and unusual," or "due process."
¶91
The Chief Justice proceeds to assert a so-called "plain
meaning" definition of "communication" that is virtually
unlimited in its scope and would no doubt astonish those who
included the term in the Utah Constitution. She argues that "the
right to freely communicate" "is expressed in broad, sweeping,
and comprehensive terms, with no qualifications placed on the
forum, method, or medium of communication," and that "it is
beyond dispute that the act of communicating extends beyond mere
No. 20020117
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words to encompass a wide variety of expressive activity." Infra
¶ 116.
¶92
The term "speech" as used in the United States
Constitution also includes no qualifications as to "forum,
method, or medium" of speech, but that has not led to it being
construed in the broadest conceivable sense. Yet that is
precisely the construction the Chief Justice advances as the
plain meaning of "communication." As she interprets the word in
her dissent, virtually any conduct--from purveying obscenity to
soliciting prostitution­-qualifies as "communication" and would,
accordingly, be afforded protection under our state constitution
so long as the conduct does not fall within her narrow
interpretation of our constitution's "abuse of that right"
language.4 This broad construction would arguably require the
State to satisfy heightened scrutiny for almost every law that
regulates conduct. I disagree that the framers' use of the word
"communicate" mandates such a broad construction. As the plain
meaning does not mandate the dissent's interpretation, that
interpretation must stem from sources external to the
constitutional text.
¶93
Indeed, the Chief Justice, although relying nominally
on a plain meaning analysis, clearly looks to our contemporary
context for guidance in her interpretation. She asserts that
"[t]he question is not whether the framers would have considered
the conduct communicative; if it is communicative, that is
enough." Infra ¶ 130. She further asserts that "[t]o 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.'" Infra ¶ 136. Thus, it is not the meaning of the
free speech right to those who created it that governs, according
to the Chief Justice, but its meaning in our contemporary
context. In essence, the Chief Justice applies a contemporary-
context approach in plain language garb.
¶94
Consistent with her contemporary-context approach, the
Chief Justice supports her assertion that the term
"communication" has come to include nude dancing in sexually
oriented businesses by describing the evolution of public
attitudes toward dance in general and erotic dance in particular.

4 Indeed, Chief Justice Durham cites with favor a passage in
which the Oregon Supreme Court concludes that the protection of
expression under that state's constitution extended even to
"explicit sexual conduct." Infra ¶ 138 (quoting State v.
Ciancanelli, 121 P.3d 613, 629 (Or. 2005)).
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Yet, as this court has stated in the past, our task is to discern
the intent of the framers when interpreting a constitutional
provision. We stray beyond this role if we attempt to illuminate
the meaning of particular language by turning to our modern
understanding of the terms used. As I have argued in Part II
above, it is more appropriate under our tripartite constitutional
democracy to determine whether nude dancing in sexually oriented
businesses was included within the right "to communicate . . .
thoughts and opinions" as that right was understood by those who
created it.
¶95
Before addressing the Chief Justice's critique of the
historical approach, I find it necessary to discuss briefly her
cursory dismissal of the majority's analysis of our
constitution's "abuse of that right" language. It is remarkable
that the Chief Justice construes "communicate" in its broadest
sense while giving "abuse of that right" an exceedingly narrow
construction. She bases this construction on her conclusion
that, at a minimum, an "abuse" must entail some "harm." See
infra ¶ 128.
¶96
Assuming Chief Justice Durham's premise that "abuse" is
inextricably linked to "harm," I am not convinced that the
concept of "harm" should be limited to tangible, deleterious
secondary effects, such as increased crime rates or decreased
property values. Alexander Bickel makes a salient point when he
argues that to grant an unrestricted "right to obtain obscene
books and pictures in the market" may have a more fundamental
effect on society than merely rising crime rates. Alexander
Bickel, The Morality of Consent 73-74 (1975). As Bickel states,
To grant this right is to affect the world
about the rest of us. . . . Perhaps each of
us can, if he wishes, effectively avert the
eye and stop the ear. Still, what is
commonly read and seen and heard and done
intrudes upon us all, wanted or not, for it
constitutes our environment.
Id. I remain open to the possibility that there may be some
acts, communicative or otherwise, that so degrade the essence of
human dignity and so denigrate broad notions of societal values
that, even in the absence of demonstrable, tangible negative
secondary effects, the democratic majority should be capable of
curtailing the behavior.
B. The Chief Justice's Critique of the
Historical Approach Is Flawed
No. 20020117
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¶97
After completing her purported plain meaning analysis,
Chief Justice Durham asserts that the infirmity of the
interpretive approach adopted by the majority and endorsed by
this concurrence is illustrated by Dred Scott v. Sandford, 60
U.S. (19 How.) 393 (1857), and Plessy v. Ferguson, 163 U.S. 537
(1896). The United States Supreme Court wrongly decided these
cases, the Chief Justice argues, because it used interpretive
techniques similar to those used by the majority­-ignoring the
text of the Constitution and instead relying "on the law existing
at the time of the Constitution's adoption." Infra ¶ 135. The
Chief Justice asserts that the United States Supreme Court has
"long since rejected the notion that practices accepted at the
time these provisions were adopted dictate the meaning of the
constitutional text." Infra ¶ 135.
¶98
The results in these cases are indeed troubling and
their use in criticizing the majority's interpretive approach
warrants some discussion. First, I should note that I disagree
with the result in each of these cases. Second, the interpretive
approach relied upon by the majority, what I have called the
historical approach, does not advocate that constitutional text
be ignored. Rather, the goal of the historical approach is to
give effect to the text as understood by those who framed and
ratified it. An examination of the text itself is of central
importance in achieving that goal.
¶99
Third, the historical approach does not provide that
practices accepted at the time a provision is adopted should
dictate the result. The common law and statutes existing at the
time a provision is adopted do not dictate the meaning of any
constitutional provision, but they certainly qualify as evidence
bearing upon the question I believe must be at the heart of our
inquiry­-what was the understanding of those who drafted and
ratified our constitution? The Chief Justice's characterization
of the use of this type of evidence as "pure speculation," infra
¶ 136, ignores an important segment of the overall historical
picture. There may well be instances where existing-law evidence
is overcome by other, more direct evidence of the framers'
intent. In this case, however, all evidence of the framers'
intent supports, rather than refutes, the majority opinion's
interpretation of our constitution.
¶100 Finally, in my view, a properly applied historical
analysis may well have yielded the opposite result in Dred Scott
and Plessy. Although a searching analysis of these opinions
exceeds the scope of this concurrence, it does bear noting that
the Supreme Court in these opinions did not, in my view, properly
apply the historical approach. A cursory or superficial
application of any interpretive approach leads to, at best,
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No. 20020117

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suspect results. This is true of the historical approach as
well. If a court allows one type of evidence of original intent
to dictate its result, it may misconstrue that intent. For
instance, there is some indication that the Plessy majority
either ignored or failed to consider important portions of the
historical record. See Michael W. McConnell, Originalism and the
Desegregation Decisions, 81 Va. L. Rev. 947, 953 (1995). The
result in that case may have been different had they properly
applied the approach. Id.
¶101 Regardless, I do not contend the historical approach to
be perfect, but the best of the alternatives. See Antonin
Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849,
862­63 (1989). It may well be that the historical understanding
of the scope of some constitutional right could be incongruent
with modern views of what that scope should be. But the
mechanism for resolving any such perceived incongruity belongs
not to judges but to the people.
C. Regardless of the Degree to Which the Framers
Were Influenced by Natural-Law Concepts, Their
Intent Controls the Question of What Constitutes Speech
¶102 In his dissent, Justice Nehring employs the historical
approach, accepting the premise that our role in this appeal is
to ascertain the intent of the framers and ratifiers of the Utah
Constitution regarding the right of free speech. Infra ¶ 158.
He further agrees that we should do so by examining the
constitutional text and historical evidence. Infra ¶ 158. His
textual and historical examination leads him to the conclusion
that the framers and ratifiers were influenced by a natural-law
concept of the freedom of speech, rather than a Blackstonian one.
A basic assumption running throughout his dissent is that Utah's
free speech provisions must be either natural-law based or
Blackstonian. In other words, either the constitution only
protects against prior restraint (Blackstonian), see William
Blackstone, 4 Commentaries *151-53, or it protects all speech
except where it "injur[es] . . . any other individual in his
person, property, or good name" (natural law), St. George Tucker,
Blackstone's Commentaries: With Notes and References to the
Constitution and Laws of the Federal Government of the United
States (1803), reprinted in, 5 The Founders' Constitution 152-58
(Philip B. Kurland & Ralph Lerner eds., 1987). In my view, the
intent of the framers was likely somewhere in between. But even
accepting the premise that the framers and ratifiers intended
speech to be protected to a degree consistent with a natural-law
view, the question remains, what did they consider to be speech
in the first instance? Or, as more specifically posed in this
appeal, did they intend the right to "communicate freely thoughts
No. 20020117
44

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and opinions" to extend to nude dancing in sexually oriented
businesses? In my view, all of the textual and historical
evidence available to us supports the conclusion that they did
not.
¶103 As Justice Nehring notes, under a natural-law, or
Lockean, concept of the right of free speech, the right exists
independent of any constitution. A constitution that includes a
right of free speech merely affirms the existence of such a
right; it does not create it. The natural-law view further holds
that the right of speech may be restricted by the state only to
the extent the speech at issue injures another. Under a
Blackstonian view of the free speech right, the right is created
by the constitution. Further, in the pure Blackstonian view
described by Justice Nehring, speech is protected only against
prior restraint. Thus, a natural-law concept of the free speech
right provides for a much higher measure of protection than does
the Blackstonian concept.
¶104 Justice Nehring characterizes the majority opinion as
adopting a strict Blackstonian construction that protects speech
only against prior restraint. I read the majority opinion as
protecting speech from both prior restraint and other forms of
abridgement or restraint to the extent intended by the framers.
There is ample evidence that the free speech right as contained
in the Utah Constitution is neither purely Blackstonian nor
purely natural-law based. First, the liberty and responsibility
clause contains indicia of both the Blackstonian and the natural-
law conception of free speech rights. As demonstrated in the
majority opinion, the "responsible for the abuse" language has
its roots in Blackstone's Commentaries. Supra ¶¶ 31-40. But as
demonstrated in Justice Nehring's dissent, the "inherent and
inalienable right" language has its roots in the natural-law
philosophy. Justice Nehring essentially concludes that the
natural-law language controls the level of speech protection, but
he does not in my view adequately account for the inclusion of
the "responsible for the abuse" language. His conclusion begs
the question: why did the framers include indicia of both
philosophies if only one has effect?
¶105 Second, both the majority and Justice Nehring cite the
writings of Thomas M. Cooley to support their position. Justice
Nehring characterizes a passage from Cooley's treatise as "a
natural rights manifesto." Infra ¶ 172. But at least one court
has classified Cooley as an adherent to the Blackstonian view.
See State v. Ciancanelli, 121 P.3d 613, 623-24 & n.10 (Or. 2005).
The following passage from Cooley's treatise demonstrates that he
does not strictly adhere to either view:
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No. 20020117

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We understand the liberty of speech and of
the press to imply not only liberty to
publish, but complete immunity for the
publication, so long as it is not harmful in
its character, when tested by such standards
as the law affords. For these standards we
must look to the common-law rules which were
in force when the constitutional guaranties
were established.
Thomas M. Cooley, A Treatise on the Constitutional Limitations
Which Rest Upon the Legislative Power of the States of the
American Union 422 (Leonard W. Levy ed., Da Capo Press 1972)
(1868). From this passage, it is clear that Cooley understood
freedom of speech to include more than just protection against
prior restraint. But it is also clear that he understood the
scope of the free speech protection to be influenced by "the
common-law rules which were in force when the constitutional
guaranties were established." Id. In other words, the law
existing at the time the constitution was adopted may be used to
demonstrate that certain forms of expression were not intended to
fall within the protective sphere of the free speech right.
Thus, Cooley's conception of the scope of the free speech right
was considerably less extensive than the natural-law construction
as described by Justice Nehring. In sum, given that the framers
of the Utah Constitution included both Blackstonian and natural-
law language in the text of the liberty and responsibility
clause, and that Cooley took an intermediate position in the
debate between the two philosophies, I cannot accept Justice
Nehring's assumption that the free speech right in the
constitution is strictly natural-law based.
¶106 More importantly, however, even accepting that the
framers and ratifiers intended to afford speech a natural-law
level of protection, that is, even if they intended to protect
all speech not injurious to another, the question remains, what
did they consider to be speech? Justice Nehring, like Chief
Justice Durham, essentially concludes that all conduct with even
a modicum of expressiveness constitutes speech under the Utah
Constitution. This conclusion essentially transforms the freedom
of speech into a virtually unlimited freedom of conduct and would
require the state to satisfy some level of heightened scrutiny
for almost every statute or rule that regulates conduct. See
supra ¶ 92. That the people of this state intended to bind
themselves to this extent is highly unlikely.
¶107 But even the question of what the framers and ratifiers
considered to be speech is broader than the one before us. We
need only determine whether they considered the conduct at issue
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here­-nude dancing in sexually oriented businesses­-to be
speech.5 All of the textual and historical evidence available to
us is consistent with the conclusion that they did not.
¶108 Indeed, it seems an unassailable conclusion that the
terms "speech" and "communication . . . [of] thoughts and
opinions" were not contemplated by those drafting and ratifying
the constitution as bestowing any type of protected status on the
type of nude dancing at issue in the current case. Any lingering
doubt as to whether the citizens of this state desired to protect
nude dancing in sexually oriented businesses is completely
alleviated by the majority opinion's excellent analysis of the
constitutional debate addressing the scope of our state's free
speech guarantee, criminal statutes relating to the topic that
were in effect both before and after the ratification of the
constitution, and the manner in which our sister states have
crafted and interpreted their own free speech protections.
Moreover, I am unable to discern any mechanism that has since
come into operation to now constitutionally protect this type of
nude dancing from state regulation. I am therefore unwilling to
strike down the ordinance at issue in this case on constitutional
grounds, and I concur in the majority opinion.
---
DURHAM, Chief Justice, 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.

5 Accordingly, the issue of whether nude dancing in other
contexts, such as in the arts, is speech is not before us.
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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 violates 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

1 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."

2 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.

3 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).
No. 20020117
48

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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

4 The majority generally refers to this clause as the
"liberty and responsibility clause." Supra ¶ 17. For the sake
of clarity, I will do the same.

5 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 ¶ 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.

6 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 ¶ 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.
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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 (2000) (plurality
opinion). However, the Utah Constitution, properly interpreted,
may provide more protection for free expression and communication
rights than the federal Constitution.7 See Pruneyard Shopping

7 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); Malan 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., 523 N.E.2d 277, 281 n.3 (N.Y.
1988); see also State v. Henry, 732 P.2d 9, 11 (Or. 1987); Pap's
A.M. v. City of Erie, 812 A.2d 591, 605 (Pa. 2002); Davenport v.
(continued...)
No. 20020117
50

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Ctr. v. Robins, 447 U.S. 74, 81 (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 be 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, 295 P.2d 348, 361-62 (Utah 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 (1819).

7 (...continued)
Garcia, 834 S.W.2d 4, 8 (Tex. 1992); State v. Reece, 757 P.2d
947, 955 (Wash. 1988).

8 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).
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¶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 Constitution
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. 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 [e]ntertainment 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 (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

9 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 rights and the perpetuity of free government." Utah
Const. art. I, § 27.

10 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).
No. 20020117
52

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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, 788 P.2d 270, 275 (Kan. 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
"communicat[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
Ziegfield 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 "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

11 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 (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.
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decorous striptease of Gypsy Rose Lee, or of Gwen Verdon 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, "`[m]odern 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 Pilobolus Dance Company,
see http://www.pilobolus.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

12 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.
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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. MacKinnon, 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 hold

13 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 (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 consenting 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.
. . . .
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,
(continued...)
55
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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 (2000) (emphasis added); see also Barnes
v. Glen Theatre, Inc., 501 U.S. 560, 566 (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

13 (...continued)
expressive content of the nude dancing
performances at issue in this case that the
State seeks to apply the statutory
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 (White, Marshall, Blackmun, & Stevens, JJ.,
dissenting) (citations and footnote omitted) (emphasis added).

14 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).
No. 20020117
56

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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 (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 good
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

15 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.

16 The majority refers to this provision as the "criminal
libel clause." Supra ¶ 17.
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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

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 ¶ 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.

18 As the majority notes, the liberty and responsibility
clause gave rise to very little debate at the constitutional
convention. Supra ¶ 43.
No. 20020117
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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 "impeach[es]
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 communication 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

19 While South Salt Lake makes much of the supposed
"secondary 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.
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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 and 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

20 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.

21 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 ¶ 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.
No. 20020117
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¶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 that 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

22 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 (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
(continued...)
61
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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 "[b]oth 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

22 (...continued)
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).
No. 20020117
62

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not believe that the Utah Constitution could be interpreted to
allow such a severe restriction on communicative activity.
¶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 (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 (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. 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

23 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.

24 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
(continued...)
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U.S. 483, 495-96 (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 principles 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

24 (...continued)
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 (2005) (citation
omitted) (Stevens & Ginsburg, JJ., dissenting).
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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, 121 P.3d 613, 614-15 (Or.
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
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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.
¶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 (1992) ("If the
early Congress's political actions [in passing the Alien 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 (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

25 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 church
members to prevent dissent or dissidence.
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undesirable `tendency' 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

26 Justice Nehring'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.
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review." Wood, 2002 UT 134, ¶ 43 (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).
¶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

27 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.
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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 (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 (2000) (quoting
Cohen v. California, 403 U.S. 15, 21 (1971)). This is certainly
true with respect to the nude dancing at issue in this case,
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.
¶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 (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.
¶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 appropriately weighed the constitutionally
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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) conclusory 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

28 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.

29 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).

30 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
(continued...)
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¶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, it recently
expanded the secondary effects doctrine drastically. In City of
Erie v. Pap's A.M., 529 U.S. 277 (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. With respect to the expansion of that
doctrine in Pap's I, it has been noted that
[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

30 (...continued)
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 be made regarding South
Salt Lake's claims of harmful secondary effects caused by the
naked dancing at these clubs.
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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 Regulation
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 evidentiary 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. 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 (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 "suggest[s] 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 (emphasis added).

31 Justice Stevens went on to state:
(continued...)
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¶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.
Angie 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

31 (...continued)
[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).
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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 the free expression provisions of its state
constitution. Pap's A.M. v. City of Erie, 812 A.2d 591, 593 (Pa.
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 `G-string.'"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

32 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, 812 A.2d 591, 594 (Pa. 2002).
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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, 827 N.E.2d 180, 189 (Mass. 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
¶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

33 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., 386 S.E.2d 140, 142
(Ga. 1989) (holding that an ordinance prohibiting certain 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., 429 N.E.2d 765, 768
(N.Y. 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").
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strike down the Ordinance as an unconstitutional restriction of
free expression.
---
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 Durrant 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:
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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 defended 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
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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.
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¶165 William Blackstone's Commentaries on the Laws of
England plays a preeminent role in making the majority's
historical case. 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 conservative 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
Blackstone'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, 121 P.3d 613, 624 (Or.
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.
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¶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, schismatical,
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,
but 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
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necessarily based upon the pre-existing
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 Varian, 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. Varian 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
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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.
¶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 "[r]ather 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
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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 Blackstonian 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 1'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
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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
teeming 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
(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 (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
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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 cases.
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.
¶187 An examination of the statutes cited by the majority to
establish the unprotected status of nude dancing will illustrate
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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 car, 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
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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.
¶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.
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¶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 (2000); Cohen v. California, 403
U.S. 15 (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 newfound sympathy for it. The attraction of the
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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" justifications 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.
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