Justice Souter, concurring in part and dissenting in part.
I join Parts I and II of the Court's opinion and agree with the analytical approach that the plurality employs in deciding this case. Erie's stated interest in combating the secondary effects associated with nude dancing establishments is an interest unrelated to the suppression of expression under United States v. O'Brien, 391 U.S. 367 (1968), and the city's regulation is thus properly considered under the O'Brien standards. I do not believe, however, that the current record allows us to say that the city has made a suffi- [p. 311] cient evidentiary showing to sustain its regulation, and I would therefore vacate the decision of the Pennsylvania Supreme Court and remand the case for further proceedings.
I
In several recent cases, we have confronted the need for factual justifications to satisfy intermediate scrutiny under the First Amendment. See, e.g., Nixon v. Shrink Missouri Government PAC, 528 U.S. 377 (2000); Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997) (Turner II); Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994) (Turner I). Those cases do not identify with any specificity a particular quantum of evidence, nor do I seek to do so in this brief concurrence. What the cases do make plain, however, is that application of an intermediate scrutiny test to a government's asserted rationale for regulation of expressive activity demands some factual justification to connect that rationale with the regulation in issue.
[p. 312] In Turner I, for example, we stated that
"[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply 'posit the existence of the disease sought to be cured.' Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434, 1455 (CADC 1985). It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." Id., at 664 (plurality opinion).
The plurality concluded there, of course, that the record, though swollen by three years of hearings on the Cable Television Consumer Protection and Competition Act of 1992, was insufficient to permit the necessary determinations and remanded for a more thorough factual development. When the case came back to us, in Turner II, a majority of the Court reiterated those requirements, characterizing the enquiry into the acceptability of the Government's regulations as one that turned on whether they "were designed to address a real harm, and whether those provisions will alleviate it in a material way." 520 U.S., at 195. Most recently, in Nixon, we repeated that "[w]e have never accepted mere conjecture as adequate to carry a First Amendment burden," 528 U.S., at 392, and we examined the "evidence introduced into the record by petitioners or cited by the lower courts in this action...," id., at 393.
The focus on evidence appearing in the record is consistent with the approach earlier applied in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976), and Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In Young, Detroit adopted a zoning ordinance requiring dispersal of adult theaters through the city and prohibiting them within 500 feet of a residential area. Urban planners and real estate experts attested to the harms created by clusters of such theaters, see 427 U.S., at 55, and we found that "[t]he record [p. 313] discloses a factual basis" supporting the efficacy of Detroit's chosen remedy, id., at 71. In Renton, the city similarly enacted a zoning ordinance requiring specified distances between adult theaters and residential zones, churches, parks, or schools. See 475 U.S., at 44. The city "held public hearings, reviewed the experiences of Seattle and other cities, and received a report from the City Attorney’s Office advising as to developments in other cities." Ibid. We found that Renton's failure to conduct its own studies before enacting the ordinance was not fatal; "[t]he First Amendment does not require a city...to conduct new studies or produce evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses." Id., at 51–52.