*1 the remainder of the venire has been excused timely
in order to be under Utah law. Be- challenge
cause we hold that Valdez’s Batson timely, ap- we reverse the court of
was
peals and remand this case to that court for
consideration of the other issues raised below.
Valdez WILKINS, 48 Associate Chief Justice DURRANT, PARRISH,
Justice Justice
Justice NEHRING concur Chief Justice opinion.
DURHAM’S UT BUSH, corporation;
AMERICAN a Utah
Jerry Phelps, Modeling; dba Paradise Reid, Love; Gayle
Brent E. dba All for
Petersen, Lace, dba Leather and Plain Appellants,
tiffs and
Fed.Appx.
See also 42
No. 20020117.
Supreme Court Utah.
July *3 McCullough, Ricks,
W. Andrew K. Trenton Midvale, plaintiffs. Frost, Carlson,
Janice L. David M. South Lake, Bergthold, Scott D. Salt Chatta- Tennessee, nooga, for defendant. PARRISH, Justice: Bush, Jerry American Plaintiffs Reid, Phelps,1 Gayle E. Brent Petersen Nielsen, 23, 2002, Jerry Modeling, May granted May Jerry dba Paradise was one dated 22 and original plaintiffs By in this case. motion “Businesses”) appeal greater protection on (collectively, the the Constitution confers of their motion for than does United States Con- court’s denial district stitution, grant summary rendering City’s pro- ordinance summary judgment City hibiting Salt Lake nude judgment South violation state (“South “City”) City rights. responded or the on the re- Salt Lake” court, moving claim that Utah Constitution the suit to federal district Businesses’ dancing. by amending nude We hold that countered their protects the Businesses answer, provisions complaint of the Utah Constitution before the filed rights to “communi- guarantee citizens’ delete all federal constitutional claims from thoughts opinions” freely cate do suit. federal district court then prejudice all protection dismissed federal claims with extend *4 according- sexually oriented businesses. We but allowed the Businesses refile ly challenges in state court. affirm. state court, refiling 4 After the Busi- state AND PROCEDURAL FACTUAL temporary injunc- twice moved for nesses HISTORY City enforcing the restraining the from tions Bush, Jerry 2 Plaintiffs American motions The ordinance. The were denied. Gayle Phelps, Modeling, and dba Paradise summary judg- Businesses then moved for Lace, Petersen, operate dba Leather ment, City responded and the with its own dancing located nude establishments South summary judgment motion. The district Brent E. Reid a Salt Lake. Plaintiff owns court denied the motion and Businesses’ store, lingerie novelty also situated in granted The South Salt Lake’s. Businesses May Lake. In the South Salt South Salt appeal. now sexually City adopted Lake Council a new repealed business ordinance oriented ANALYSIS previous all ordinances of this replaced present ques- 5 The Businesses us with a 5.56.310(G) the new type. of ordi- Section interpretation. of tion Utah constitutional any prohibits sexually ori- specifically nance is, Each of the businesses or has an interest “[a]ppear[ing] employee ented business in, offering dancing part a business nude nudity patron in a of before a on the state adult, sexually of business locat- oriented sexually premises of a oriented business.” City. City ed in South Lake has Salt appeared had language, This zoning enacted various business license and City’s sexually ori- previous versions of sexually on restrictions oriented businesses. ordinance, effectively ented business elimi- see as re- The Businesses these enactments subcategory nates of “nude danc- the former on their of free strictions requires three of the establishments” dancing through nude the restric- and believe Bush, four Paradise businesses —American be, are, prohibited tions should under and Lace —to Modeling, and Leather either Utah Constitution. reapply as semi-nude for business licenses or face civil and crim- dancing establishments ¶ Specifically, the 6 Businesses claim new inal sanctions for violation of the ordi- I, article sections 1 and 15 of the Utah Con- nance. protection expres- greater stitution confer ¶3 through dancing than Originally, the Businesses filed an ac- sion nude the United such, court, among claiming, claim tion in district other States Constitution.2 As I, city things, prohibiting section 15 of the ordinance nude that article City, Modeling, v. Lake Phelps, was substituted Heideman S. Salt F.3d dba Paradise Jerry (10th Cir.2003) City Pap’s (citing for the deceased Nielsen. Erie v. A.M., 529 U.S. 120 S.Ct. imposition Federal courts have held that the case, (2000)). Plaintiffs in this how- L.Ed.2d requirement a for minimal dress on dancers in ever, any deliberately un- have excluded claims sexually poses at a de oriented businesses most being der the United States Constitution from effect involved minimis on action. considered in this See, e.g., under the United States Constitution. A Interpretative Lake violates the free South Salt Framework rights of the under the Businesses ¶ Although this court has not ad subsidiary issues, As Utah Constitution. pro dressed whether the Utah Constitution institution Businesses also claim dancing, prior nude provide tects cases city banning new ordinance guidance pro how freedom sexually oriented businesses constitutes visions the Utah Constitution should interpreted. scope of Utah’s constitu section “taking” violation article protections “may tional or nar be broader Constitution, the Utah is with- than” rower those offered the First 'authority legal such an out enact ordi- Amendment, “depending on [our] state con nance, Reid, plaintiff and that Brent language, history, stitution’s interpreta summary judgment City’s fa- entered in West, tion.” n. 4. P.2d improper. vor the district court was court, reviewing judgment district interpretation 10 The pro analyze claims in turn. we will each these tections afforded the Utah Constitution
appropriately commences review County the constitutional text. Grand I. FREE PLAINTIFFS’ 57, ¶29, Emery County, 2002 UT SPEECH CLAIM *5 (explaining starting point 1148 that “our in interpreting a provision constitutional the is produced 7 Plaintiffs have di little itself’). language textual While we first look authority proposition rect for the the Willis, plain to meaning, the text’s v. State protects dancing. Utah Constitution nude ¶93, 4, 100 1218, recognize UT P.3d we However, primarily poverty this is due to the ... “language that constitutional is to be scholarly analysis of Utah law both case and not as read barren words found a dictio history meaning of the of the and of freedom nary symbols experience but as of historic provisions of the Utah Constitution. presuppositions illumined the of those light support In of of primacy this court’s the employed who them.” Dennis v. United model, analyzes which issues under the state States, 494, 523, 857, U.S. S.Ct. resorting constitution to before the federal (1951) (Frankfurter, J., L.Ed. concur constitution, v. Newspapers, West Thomson ring). interpre We thus inform our textual (Utah 999, 1994), 872 P.2d 1004-07 we take tation with historical of evidence the framers’ opportunity Betensen, this to elucidate the constitution intent. State v. 14 Utah 2d (1963) (“[I]t underpinnings holding proper al of our 378 P.2d is to that. the 669-70 itself, look not to the protect [constitution] but Utah Constitution does not nude background to out it the of which arose and dancing reach of the the South Salt practical application its to order determine at Lake ordinance issue here. The is intent.”); the also [framers’] see Univ. fairly by plaintiffs, sue of was raised and our Exam’rs, Bd. 2d Utah v. Utah of clarify to attention this matter serve (“[I]f P.2d the words are 361-62 the of the in this state law area. clear, it ambiguous meaning or their not then question 8 The before is us whether proper to look outside the instrument itself banning Salt South Lake ordinance nude what the meant ascertain framers the sexually used.”). oriented businesses vio- language step the Utah The lates Constitution. first reviewing history 11 In the of Utah con- analysis in our must be to determine whether provisions protecting stitutional the freedom protected is a under the guidance speech, “we [have] look[ed] freedom clauses of the Utah Con- .law, particular the common state’s ... protected right, If stitution. it is a we then traditions, and intent of our constitution’s must determine whether the ordinance im- West, drafters.” P.2d at 1013. also We permissibly abridges right. or restrains this made have looked to court decisions contem- yet As court not has addressed these poraneously framing Utah’s consti- questions, impression. is one of first similar case tution sister states with KUTV, rulers, they do not measure the but provisions. (Utah Conder, rights governed.... state consti- [A
Inc. 518-21 1983). light the fact the Utah beginning is not the of a communi- tution] “adopted ... against ty, private rights; was origin Constitution it is nor century experience background law, of over incipient not the fountain of nor Constitution,” an States cause, under the United government; it state of con- understanding First Amendment consequence, personal and political but adoption is also instructive. temporary its freedom; rights grants people, it no Id. at 521. power, of their but creature Designed instrument of their convenience. summary, interpreting 12 In protection enjoyment in the Constitution, prior guides case law us powers possessed and text, its historical analyze evidence made, before the constitution was it is but drafted, the law it was state of when political government, the framework of the time particular traditions Utah’s necessarily upon pre-exist- based analysis is to drafting.3 goal of this laws, habits, rights, condition of purpose of both discern intent thought. nothing primi- There is modes and, impor of our constitution more drafters tive it: it all from a known derived tantly, who voted it into effect.4 the citizens presupposes organized source. It soci- It this latter class of individuals that is from ety, law, order, property, personal free- power derives Utah Constitution dom, enough political liberty, love of effect, it them must for its is to we look intelligence know of cultivated how interpretation. proper guard against tyr- the encroachments of ¶ 13 framers of Utah’s constitu anny. people as the source tion the will of saw *6 upon Cooley, M. A on the of our state Thomas Treatise Consti- constitutional limitations Upon the con tutional Limitations Which Rest the government. the floor of Utah On convention, Legislative quoted Charles Varían Power the States the Ameri- stitutional of of (Leonard Cooley, ed., by Levy Da from a written Thomas can Union 36-37 treatise W. 1972) (1868) authority Capo Cooley, the of the late nine preeminent [hereinafter Press ], mat century quoted teenth on state constitutional 1 Constitutional Limitations in Of- ters, Report Proceedings which reads follows: ficial of and the Debates (Salt City, of the 643 Lake Convention Star considering we State constitutions 1898) Printing Proceedings Co. [hereinafter ]. of supposing not commit the mistake must Thus, rights protected by
that,
as the
which are
guarded
because individual
are
them,
are
the
by
they
upon
be
the Utah Constitution
“based
protected
must also
and
habits,
laws,
owing
origin
pre-existing
rights,
of
their
to them.
condition
considered as
extant, id.,
powers
thought”
the
of
and
of
then
it is
These instruments measure
modes
J.,
("Our
(1964)
intentionally
(Goldberg,
concurring)
3.
excluded
consider-
sworn
We have
the
Society
policy arguments suggested by
duty
requires,
ation of
construe the Constitution
how-
to
of
Whitehead,
916,
Separationists
ever,
n.
v.
921
we
the
read it to effectuate
intent
(Utah 1993).
statutory
6
As is
case with
must, therefore,
the
purposes
the
of
Framers. We
duty
interpretation,
judge
to
wis-
our
is not
the
history
consider the
and circumstances indicat-
people
granting with-
of Utah in
or
dom
holding
provisions]
[constitutional
the
were in
what
but, rather,
protections
constitutional
achieve.”);
County
designed
fact
to
Lake
v. Rol-
accurately discerning
to
their intent.
confined
lins,
671,
651,
662,
U.S.
9
32 L.Ed.
130
S.Ct.
Vance;
Lumber Co. v.
32 Utah
Volker-Scowcroft
("The
(1889)
simplest
1060
most
obvious
896,
("With the
88 P.
wisdom
constitution,
interpretation of a
if in itself sensi-
provision
equity
such
neither
[constitutional]
of
ble,
likely
be
is the most
to
that meant
the
do.”).
Legislature
anything
[has]
we nor the
Policy arguments
Sutton,
people
adoption.”);
in
Tom
only
are
extent
relevant
to the
Cir.1976) ("In
(9th
interpreting
F.2d
upon
they
of
bear
the discernment
that intent.
provision,
prin-
the
fundamental
ciple
give
provision
of construction is
recognized
4.
have
obli-
courts
similar
Federal
gation
people
interpreting
Con-
effect intended
the framers and the
when
the United States
See,
it.”).
Maryland,
e.g.,
adopting
U.S.
stitution.
Bell v.
226. 288-89.
speech. abridge No law shall passed or re- speech strain the freedom of or of the process Through voting press. prosecutions In all criminal for li- 5,1895, for the constitution November may given bel the truth in evidence to be citizens of Utah circumscribed the limits jury; appear and if it shall jury to the yond may which their elected officials charged true, matter libelous political power tread.5 “[a]ll As is inherent motives, published good was I, in people,” § art. Const. ends, justifiable party shall be ac- Utah’s citizens had the themselves quitted; jury shall have power limit sovereign their own act to determine the law and the fact. through their elected officials. offi Judicial I, § Id. art. cers not substitute own wisdom people Utah inasmuch as 17 The framers of the Utah Constitution citizens limited the actions their elected guarantees divided freedom officials in left certain areas but them free into three distinct clauses. The first clause judgment other (the areas exercise their “liberty clause”), responsibility con- representing their constituents. To do so in section tained the declaration of deny political powers would be to rights, scope defines the of the freedom of citizens of Utah that their wisdom I, § speech. Id. art. 1. The second clause judgment had retained for (the themselves. clause”), “governmental restriction con- tained the first sentence of section preliminary 15 It now our task to prohibits governmental abridge actions that people discern if Utah intended to bind rights. or restrain those Id. art. elected, duly hands of their officials general application These first two clauses protecting under concert; function the first defines what is clauses their constitution. firstWe protected, while the second defines limits examine the text of the freedom of governmental action relation those clauses in our We constitution. then exam- (the protected activities. The third clause ine language the historical roots our clause”), “(cid:127)criminal libel contained in the sec- Finally, constitution. we examine the histor- ond sentence of section illustrates the ical society context of the adopted *7 governmental action, by limits of infer- and freedom of clauses in order to divine freedoms, scope ence the in of individual the the our intent of in choosing citizens specific prosecu- criminal instance of libel language. tions. Id. B. Text the Freedom ¶ pause 18 that We to note we Speech Provisions disagree Nehring’s with Justice contention Utah Constitution I, I, 1 that article and section section article ¶ begin 16 analysis complementary We our with the consti- 15 are not and not should tutional language together. text itself. The interpretative ap read Such proach constitution contains the surest indication defies conventional of consti methods the intent of its and the interpretation, framers citizens tutional that dictate I, Utah who it determining meaning voted into effect. Article when of a constitu declares, part, section 1 provision, provisions relevant that dealing “[a]ll tional “other right men have generally topic the inherent inalienable and the same ... assist us in ... freely thoughts communicate arriving proper interpretation at a opinions, being responsible for provision question.” the abuse constitutional In re Const, I, Worthen, right.” 853, (Utah 1996); that Utah art. 1. Addi- 926 P.2d 866-67 form, "By they liberty 5. gate body, opposi- [the constitutions which are at to take action people] up tie alike their own hands Cooley, tion to these fundamental laws.” Consti- agencies; hands ¶ of their and neither the Limitations, 13, officers supra tutional 28. State, people aggre- nor the whole as an 1242 clause, governmental Corp., 717 The restriction howev- Berry v. Beech
see also
Aircraft
er,
(Utah 1985)
analysis
in this
applicable
is not
initial
670,
(indicating that the
675
P.2d
rights
expand upon
it does not
because
provision “must
meaning of
constitutional
liberty
responsibility
in the
contained
history
plain
only from
not
its
taken
merely
governmental ac-
clause but
restrains
rela
language, but also from its functional
rights;
to those
tion
relation
established
provisions”);
tionship to other constitutional
for-
no additional
are secured
Lewis,
v.
26
rel. Breeden
Utah
State ex
mer than are contained
the latter. Other
(1903)
(indicating
when
that
72 P.
389
have
with similar constructions
inter-
states
pari
“are in
mate-
provisions
constitutional
preted
expression
their freedom of
clauses
ria,
interpre
rules of
... under well-known
Tucci,
similarly.
parte
Ex
859 S.W.2d
See
tation, [they]
together”).
must be construed
(Tex.1993)
C.J.,
(Phillips,
concurring)
I,
I,
article
section and article
section
Since
(“[N]o
yet
suggested
Texas case has
that
expression, it is
both directed toward
are
im-
[governmental restriction] clause
second
entirely
necessary,
that
appropriate,
fact
greater
parts protection
than either the ‘lib-
provisions together.
two
we construe these
erty
responsibility’
or the First
clause
Indeed,
specifically
has
held
court
Amendment, or
it modifies the state’s
I,
conjunc
read in
“article
section 15 must be
ability
punishment
expressions
impose
,..
provisions
tion with other
”);
Major,
‘abuse.’
v.
deemed an
Jacobs
provision
[including]
opening
[t]he
(“The
492, 407
Wis.2d
N.W.2d
West,
at 1015
Utah Constitution.”
I,
independent
[of
two
clauses
article
section
added);
Redding Bra
(emphasis
see also
repetitious
are
nor
in ex-
3]
neither verbose
(Utah 1980) (constru
dy,
P.2d
pressing
They
the idea of the section.
are
I,
I,
ing
article
article
section
section
express-
related to each other with the first
concert).
15 in
and the second
Nehring suggests
these
19 Justice
stating
entity,
state, against
whom
together
provisions should not be read
two
shielded.”).
lineag-
because
have “distinct historical
govern
true
21 While it is
ably
As
es.”
158.
articulated
Infra
mental
in article
restriction clause contained
opinion,
in his concurring
Durrant
Justice
I,
15 of
section
Constitution
however,
urged by
the distinction
Justice
counterpart,
than its
broader
federal
entirely
Nehring is
not
clear.
Infra
range
expression
expand
not
does
I,
although
are
article
And we
convinced
protected, as Chief
Durham’s dissent
Justice
section
have some natural law under-
Rather,
imply.
seems to
See
infra
clearly
pinnings,
language
tempered
scope
permissible governmen
narrows the
Blackstonian-inspired phrase “being
re-
tal action in relation to forms of
sponsible
right.”
for the abuse of that
See
liberty
protected by
responsibility
¶¶
Consequently,
discussion
102-05.
infra
clause of article
section 1. Chief Justice
Nehring’s interpretation
Justice
does
*8
City Corp.
Durham
a
cites
footnote
Provo
convince us that we should abandon the well-
(Utah 1989),
Willden,
v.
1243
clause, however,
restrained,”
what
This
does not define
to be
then
intended
“[t]he dis-
rights are.
government
those
between a
tinction[ ]
limited
powers[]
and unlimited
is abolished.” Id.
¶22 Instead, we must turn to the
We must
therefore consider
text in its
liberty
responsibility
clause to
text
historical context in
order
discern if the
what these
are.
determine
constitution’s framers
intended
limit the
explicitly defines the
Constitution
freedom
government’s power
regulate
nude danc-
speech right
in article
section 1 as the
ing.
In
Inquiry Concerning
See
re
Judge,
a
freely
thoughts
right
to “communicate
...
¶6, 15,
1999
(explaining
UT
illuminate the
text’s
we
awith historical con
mind,
patch
Utah Constitution is not a
text in
we return to the text of the
'
dictionary.”
liberty
responsibility
face,
work
“barren words found
clause. On its
States,
Dennis
United
U.S.
freedom
defined
the Utah
(1951) (Frank
right.
S.Ct.
abuses
be
¶ Thus,
from the
of the Utah
The
chose to
the broad
text
framers
use
suits.
Constitution,
right”
defining
than
see that
clause
“abuse of that
rather
we
phrase
protected by
li-
language specifically
scope
tailored to suits for
of activities
the free
speech
We must assume
to “abuses” of
bel and defamation.
dom
does
extend
preserve
purely
so
a broader
also
did
in order
that freedom. We
see that
yet
of what constitutes an abuse.
definition
malicious
of truthful
libelous
example
one
of what would be
statements is
¶27
only textual evidence for
an
considered
abuse
freedom
phrase
means can
found
what
be
plain
our
text of
constitution.
in the
criminal libel clause
second sentence
Constitution, however,
clearly
does not
Utah
clause,
15. In this
we see
article
section
protected
is a
indicate whether
may
it
an abuse of free
ideas,
thoughts and
expression of
whether
in
government
libelous
print
statement
an
it is
abuse of this
and therefore
terests, even
to be
happens
if that statement
excepted
guarantees.
from constitutional
clause,
an indi
completely
Under
true.
order to determine what would be considered
may use
truth as a
in suits
vidual
defense
an
within the context of the Utah
abuse
only if the
were
for criminal libel
statements
Constitution,
therefore
an
we
undertake
his
motives,
justifi
“published
good
and for
analysis
torical
to discern the intent
Const,
I, §
art.
15.
ends.” Utah
able
adopting
citizens of
this limitation on
¶28
Court,
Supreme
The United States
speech.
the freedom of
however,
rejected
“good
explicitly
has
criticizes our
30 Chief Justice Durham
“justifiable
requirements
ends”
motives”
might
approach
for the undesirable results
under the First Amendment to the United
cases, specifically
produce
pointing
other
See Garrison v. Louisi-
States Constitution.
70-73,
209,
ana,
64,
Supreme
13 to the landmark United States
379 U.S.
S.Ct.
State,
(1964);
Brown v.
Edu-
see also I.M.L. v.
Court decision of
Board
L.Ed.2d
cation,
98 L.Ed.
Under
U.S.
S.Ct.
2002 UT
(1954),
Constitution,
therefore,
approach
case
as one
where
United States
morally
might produce
unacceptable
criminal
result.
as a defense in
truth
used
regardless
ap-
for the
we
that our
cases
motives
While
doubt
libel
Infra
unacceptable
offending
proach would mandate
out-
statement’s utterance. See Garri-
cases,8
Thus,
son,
we do not
comes Brown and other
right, English finds its roots common stitution has roots in formu- its Blackstone’s law. law, prohibits lation the common
¶ 32 At founding, prior publications, the time our nation’s restraints on but reserves punish publications the idea that the freedom of for the power was state the subject popular limitation liberty some found ex- considered to an abuse pression writings press, including of Blackstone. “immoral” libels.9 so, quality Congress “Aat passed the ahistorical was Even Brown un- Ae Reconstruction avoidable, inns, approach legislation prohibiting segregation because an historical Ae- aters, railroads, carriers, question produced morally would have a unac- and other common ceptable legislation Id. at rejected answer.” 1140. This the same Aat have coun- would assumption suggested by segregated separate- Chief Justice Durham tenanced education on ¶¶ in her dissent. 134-35. McConnell's but-equal basis. The Court in refused Brown Infra
painstaking analysis so, research concluded to "turn the back." But had it done clock Aat, belief, popular contrary segrega- "school strong support it would discovered for have during tion was understood Reconstruction to holding stronger Aan Ae “modern dubious — principles equality violate Ae of Ae Four- authority” on which Ae Court relied. teenA Amendment.” McConnell, supra note at 1140. . view, approach McConnell found In McConnell's an historical Brown, appropriate [b]etween boA houses of Con- would not have been gress repeatedly, by margins, large "powerful judicial voted it would have assault been legislation premised Aeoiy favor of on the laws Id. at on the Jim Crow of Ae South.” jure segregation public de of Ae schools is desegregation prior prohibition bills nev- restraints is unconstitutional. Blackstone’s because, commonly forbidding procedural er became Ae law rea- viewed establish sons, governmental body two-Airds House of ment of a Aat censored Representatives required passage. published. was final works were before allowed to *11 1246 ¶ inde- This construction of the 35 As the colonies declared their 33 Blackstonian Britain, however, pendence from this bulwark of was not Great speech,
freedom used Essay metaphor, taken from No. 15 of Cato’s constitutions of the the earliest state revolu entitled, Letters, Speech: Freedom “Of of tionary period. England’s Other voices from inseparable the same from Publick That initially proved to be intellectual tradition (3d ed.1969), Liberty,” 1 Letters 96 Cato’s on the constitutional law more influential way a of new found its into few the states’ emerging particular impor nation. Of explic- constitutions. Of the nine states that Gordon, pub were Trenchard and who tance itly protected press the freedom of the a of 1720 and lished series letters between early period, adopted qualifying none the Letters, 1723, collectively known as Cato’s Tucci, language from Blackstone. See 859 argued more of ex extensive C.J., concurring). (Phillips, at 67 S.W.2d of pression government reprisal. without fear states, however, adopted Two of these the (Tex. parte Ex 859 65 See S.W.2d Tucci liberty” language of from “bulwark Cato. 1993) C.J., concurring). com (Phillips, One ¶ 33, Anderson, supra at 492. The influential essays these mentator has even described “ of Virginia Rights Bill of 1776 read: “That quotable, popular, ‘the most esteemed press great the of the freedom the one of political peri of ideas in the colonial source ” liberty, can bulwarks of never be re- Anderson, Origins A. the od.’ David of by despotic governments.” strained but Va. Clause, UCLA L.Rev. 491 Press (1776). Rights, § Bill of Later that Const. Rossiter, (quoting C. Seedtime of year, adopted very North a same Carolina (1953)). Indeed, our nation’s Republic Rights: provision similar in its Declaration of speech prob earliest notion of freedom press “That the freedom of the one of ably “was closer to Cato’s than Blackstone’s.” liberty, great bulwarks of and therefore C.J., (Phillips, at 66 con 859 S.W.2d Tucci ought restrained.” never N.C. Const. curring). (1776). Rights Declaration XV popular enough in Letters were Cato’s constitutions, early 36 Of state how- leading up Revolutionary period ever, Pennsylvania Constitution leading newspaper radical War contained one the broadest statements of Gazette, Massachusetts, repub- the Boston original thirteen freedom essays in Trenchard and lished Gordon’s Williams, Robert states. F. The State Con- Anderson, supra at 463. The Founding Pennsyl- Decade: stitutions of principles espoused in were Cato’s Letters vania’s Radical 1776 Constitution and its year, put to the test later same when Constitutionalism, on American Influences published an article critical of Boston Gazette (1989). Temp. L.Rev. Of the royal governor, who then asked the colo- constitutions, Pennsylvania’s original state legislature grand nial to refer the matter to a explicitly was the one to constitution prosecution jury for Id. seditious libel. general speech, freedom dis- mention House, “The the radical leader dominated specific tinct from the freedom the more Adams, so and instead Sam refused do press in other constitu- enumerated state upon adopted ¶26, 5-2(a); a which drew lan- Friesen, § resolution” supra tions. guage Liberty Anderson, ¶33, “The supra Cato’s Letters: provided at 465. It great Liberty people the Press is a Bulwark of that “the have a to freedom of is, therefore, People: speech, writing, publishing It the incumbent sentiments; Duty who are constituted those Guard- therefore freedom press ought People’s Rights ians of to defend and restrained.” (internal (internal Anderson, quota- supra at 465 quotation maintain it.” Id. marks omitted). omitted). Pennsylvania’s tion marks "[a]ppear prior ply is not it unlawful to state of
The South Salt Lake ordinance makes upon speech. nudity patron premises restraint No board of censors is of a before preview established to routines cos- dance sexually Salt oriented business." South Lake judge are ac- tumes order to deemed Utah, (2005). City, Mun.Code 5.56.310 ceptable which are not. The ordinance sim-
1247
pered by
“responsibility
for
provision,
plenary
unqualified
its
and
abuse” clause.
with
Friesen,
26,
§§
supra
through
1
at
6-85
5-
speech,
of
of
formulation
the freedom
even
Virginia
96. Even the
and North Carolina
speech
model for
freedom of
served as a
the
Constitutions, with their rhetorical nods to
propos-
initial
component of James Madison’s
Letters,
swept up
the radical Cato’s
were
for
First
Congress
al to
the
Amendment.10
speech
this trend toward limited freedom of
¶37
revolutionary fervor in the
As the
rights. While both
the
maintained
“bulwarks
cooled, however, the broader
United States
liberty”
constitutions,
metaphor
of
in their
of
ideas
the limits of the freedom
about
Carolina,
1868,
North
Virginia,
and
revolutionary
speech right embodied in the
1870, qualified
speech
their broad freedom of
by
were
con-
constitutions
blunted
the more
lang
protections
responsibility
for abuse
Blackstone
of the free-
servative
formulation
uage.12
52,
859
at
Al
S.W.2d
57.
Tucci
press.11
dom of
the
of
the
Even
freedom
though
Virginia
currently
West
is
one of the
Pennsylvania
speech
of the
clause
Constitu-
construction,
seven states
without
the
trend,
exception
tion
was no
as
citizens of that
chose to
state
revise their
plenary right
once
of
became
excep
constitution in
specifically
1872 to
list
qualified by the
re-
Blackstonian addendum
speech
its
guarantees:
tions to
freedom of
“
quiring
abuse:
responsibility for
“The free
abridging
speech,
‘No law
freedom of
or
thoughts
opinions
of
and
communication
press,
passed;
Legis
of the
shall
but the
man;
one of
of
and
the invaluable
may by
penalties,
lature
suitable
restrain the
every
speak, write,
freely
and
citizen
publication
books,' papers
or sale of obscene
print
subject, being responsible
any
for
pictures,
provide
punishment
or
and
for the
Const,
”
liberty.”
the abuse of that
Pa.
art.
libel,
of
and
of
defamation
character....’
(1790).
IX, § 7
In view of the liberal and
III,
(quoting
§
Id. at
W. Va. Const. art.
7
58.
unqualified
clause,
nature of the 1776
(1872)).
addition of this Blackstonian limitation
no
pro-
This
of
wave
state constitutional
formulation,
empty
represents
but
a shift to
providing
protections
visions
limited
for the
speech right.
more limited freedom of
speech
freedom
reflects what
of our
one
During
century,
greater
nineteenth
founding fathers saw as the states’
speech.
states
authority
regulate
were added
the Union and
President
As
original
began
thirteen states
revise their Thomas Jefferson wrote
1804:
constitutions,
the vast
of the states
opinion
Nor does the
the unconstitution-
adopted
“responsibility
provi-
ality
nullity
abuse”
consequent
and
Sedi-
[the
2000,
year
sion.
As of
state constitu-
tion Act of
remove all
1798]
restraint
speech”
tions contained the
overwhelming
“freedom
tem-
torrent
slander
proposal incorporated
10. Madison's
elements
In
North Carolina Constitution was
Pennsylvania
as well
press
Constitution
to read:
freedom
amended
"The
liberty” language
Virginia
and,
“bulwarks of
from the
great
liberty,
one of
bulwarks of
there
people
deprived
Constitution: "The
shall not be
fore,
restrained,
ought
every
never to be
but
write,
speak,
abridged
of their
toor
responsible
shall
abuse
individual
be held
for the
sentiments;
publish
press,
freedom of
I,
(1868).
§
of the same." N.C. Const. art.
great
liberty,
as one of the
bulwarks of
Virginia,
perhaps
Even
which had
the most ada
Anderson,
¶ 33,
supra
shall be inviolable.”
delineating
mant rhetoric
the absolute nature of
473, 477-78.
the freedom
freedom of
clause,
explicitly
amended
ac
its constitution
“responsibility
Blackstone’s
abuse" lan-
knowledge exceptions to even its
lan
ardent
guage ironically
appeared
first
in the once revo-
guage.
Virginia
In
amended its freedom
Friesen,
Pennsylvania
lutionary
Constitution.
provision
to read: "That the freedom
5-2(a).
supra
§
the Federalist
press
great
is one
bulwarks of
Party
replaced
state
in that
radical 1776
liberty, and can never be restrained but
des
with a
"more
constitution
much
conservative
Overall,
potic
may speak,
governments;
re-
version.” Id.
the 1790 constitution
citizen
jected
radically
ideology
write,
subjects,
publish
democratic
his
on all
sentiments
defeat to
constitution
was a
the liberal
responsible
right.”
being
abuse
for the
of that
ideology
Whig
parte
that had
it. Ex
infused
(1870).
Va.
art.
Const.
C.J.,
Tucci,
(Tex.1993) (Phillips,
859 S.W.2d
concurring).
virtue,
confounding
importantly, though,
all
all truth
the minutes of the
vice and
More
power
analysis
in the
to do
and falsehood
U.S.
convention direct our
to an examina-
fully
several state
possessed
statutory
that is
tion
the common law
law
them,
legislatures.
It was reserved to
in order to
values
then
effect
discern the
general government,
was denied to the
judgments
policy
of the Utah citizens
*13
according
to our construc-
constitution
who ratified
constitution.
deny
Congress
tion
it.
of While we
a
the freedom
[sic]
[control]
have
1. The Utah Constitutional Convention
press,
of the
asserted the
we have ever
¶ 42 The minutes of the
consti-
1895 Utah
states,
right of the
their exclusive
point
tutional convention
to the
that the
fact
right,
general
to do so....
In
the state
our constitution
a
framers of
also envisioned
appear
presses
laws
to have made
speech.
limited freedom of
the chair-
When
responsible for slander as far as is consis-
declara-
man of the committee
wrote the
tent with their useful freedom.
presented
rights
tion of
the first
draft
Abigail
Letter
from Thomas Jefferson
whole,
a
emphasized
convention as
he
11, 1804),
(Sept.
in The
Adams
Adams-Jef-
sought
pre-
balance it
maintain between
(Lester
ed.,
Cappon
Letters 279
J.
ferson
serving important rights
binding
1988).
legislature
carry
the will
hands of
out
sum,
framers chose
when the Utah
Thus,
people.
although
the committee
“responsibility
abuse” in
include
for
rights,
strove to enumerate fundamental
speech
of
of the state’s freedom
formulation
“if,
hand,
recognized
also
on the other
they
phrase
long
with a
provisions,
chose
inserted
ought
we have
which
history
preserving
power
the state
Legislature,
be of-
left to the
we shall not
regulate speech
historical
under certain
if
are stricken out.”
fended
Proceed-
exceptions.
foregoing history
demon-
¶ 13,
ings, supra
at 200.
that,
embracing
rather
than
more
strates
¶43 The
over
debates
the freedom
speech,
ideas of the freedom
liberal
speech clauses centered on this tension be-
“responsibility
phrase articulates
for abuse”
protecting rights
allowing
leg-
tween
the constitu-
upon
a conservative limitation
according
freedom to
islature the
make laws
tionally
speech right.
granted freedom .of
people.
Although
to the will
there was
turn,
limitation, in
can
traced back to
This
liberty
no substantial debate over the
Commentaries,
specifical-
Blackstone’s
clause,
responsibility
there was extensive de-
preserve
capacity of the state to re-
ly
the criminal
in section
bate over
libel clause
speech.13
“immoral”
strict
I.
15 of article
Id. at 319-23. This debate
highlights the limited nature of the freedom
History
Utah’s
D. The
and.Context of
protections
speech
contained in the Utah
Speech
Adoption
Its Freedom of
Constitution as well as the deference the
Provisions
delegates gave to the common law.
analysis
adoption
41 Historical
of Utah’s
¶ 44 At the behest of members of the Utah
reveals
freedom of
clause
more
Association,
Goodwin,
lawyer
protections.
Press
Charles
precisely
parameters
of its
and,
previous
years,
editor
provides
for the
fifteen
Utah’s constitutional convention
Tribune,
proposal
Lake
some indication of the framers’ intent
of The Salt
offered a
provisions.
respects
drafting
our freedom of
15 that differed in three
section
Ct.,
458,
Super.
Contemporary
passage
Dailey
of Utah's con-
112 Cal.
44 P.
459-
stitution,
(1896).
several states with constitutions con-
Several other state
subse
courts have
taining
language limiting
similar "abuse” clause
quently
con
noted
connection to their own
speech recognized
freedom of
that limita-
provisions containing
quali
stitutional
the abuse
English
law. For
tion’s roots in
common
exam-
Jackson,
See
fication.
State v.
224 Or.
ple, a scant five
citizens of Utah
months after the
(1960);
499-500
P.2d
Theatres,
William Goldman
effect,
voted their constitution into
the California
Dana,
Inc. v.
405 Pa.
173 A.2d
Supreme
very
interpreted
similar
Court
con-
Tucci,
(1961);
(Phillips,
the common law
after statehood.17
in dicta.
Robertson v.
See
165 U.S.
275, 281,
(1897)
S.Ct.
L.Ed. 715
¶ 51 Both
law
the statuto-
the common
(“Thus,
speech
freedom
and of the
ry
law force at
time of the formation of
(art. I)
press
permit
publication
does not
constitution demonstrate
obscene
libels,
articles,
blasphemous or indecent
or
protected by
was not
the freedom of
publications injurious
public
other
morals
noted, Blackstone,
speech.
already
As
private
Rapier,
or
reputation.”);
In re
original
liberty
responsibili-
source of
110, 134,
U.S.
S.Ct.
whether nude falls within After Utah attained tection. statehood obscenity category tected or whether the appointed a commission was to revise protect it citizens of intended to under Utah “make laws and them conform territorial speech provisions. its free at iii. to the constitution.” Utah Rev. Stat. the time II55 laws effect at legislature adopted In the state stat clearly Constitution’s ratification indi- Utah territori utes identical the aforementioned that, people if the of this ever laws, cate state approval con expressing al of their speech, it to be considered formity constitution. Utah to the new state punishable (1898). have of that 4247(1)-(3) must been abuse Rev. Stat. Laws enacted after the Utah
freedom. soon ¶ Thus, people of our when clearly was ratified forbade ac- Constitution constitution, they consid- state ratified dancing. In tivities such as nude decency nudity that or ered was offensive to legislature making enacted a law it a thoughts unaccepta- excited lewd dance, any “employ prom- female to crime legislature, the state ble Utah. enade, herself’ in otherwise exhibit duly citizens, reaffirm- elected this state’s *17 room, “saloon, cellar, public dance or dance nude judgment ed that activities such as the any place garden, public highway, or in what- dancing prohibited could be the state soever, excepted,” a to theatres or for female evidence, we Utah. In view this historical activity. Rev. engage such Stat. framed and ratified conclude that those who (1898). § 4244 not intend to extend Utah’s constitution did dancing. protections to nude ¶ Nehring that the 56 Justice contends summary, scope of constitu- In the the purpose of this and other similar statutes roles, guaranteeing right of gender expres- provisions tional the regulate was “to freely their disagree. Although to “communicate 189. We Utah citizens sion.” Infra opinions, being responsible for legislature may thoughts and the have been- concerned roles, right,” of that is unclear from regulating gender it was also abuse with interpreting their clearly regulating text. interested in the content of activities, scope, us to dancing, appropriate it is therefore for including various as evi- evi- gender-neutral historical context and other denced several statutes. consider debate passage of of the framers’ intent. The example, For even before the dence very that provisions over the at issue establishes Utah’s constitution same the common law that tradi- the framers looked to territorial statute forbade provide the tionally punishable as boundaries under obscene stat- expression. And both the common and any person also forbade to “[e]x- common law the time utory law effect at demonstrate pose[ person” his or ] with, dancing preempted by, does not fall within the inconsistent nude disagree. state scope constitutionally protected communi- statute. We accordingly cation. hold that nude danc- We City ample authority has enact sexually plaintiffs’ oriented businesses ordinance, and it is not in conflict with protection is not under the free- entitled Jordan, City state law. See Call v. of W. dom of clauses of Utah Con- (Utah 1979). Pursuant to stitution. (2003), Utah Code section 10-8-84 cities have power regulate through businesses licensing policies and the enactment of ordi II. PLAINTIFFS’ OTHER CLAIMS nances. it Because is well established that In addition freedom to their Utah municipalities legis have the speech argument, the claim Businesses subject late on the same as a state statute they have the’Victims of an unconstitu been issue, general power where the welfare is at “taking” process tional without due of law. reject we argument the Businesses’ that the argument This their based on assertion legislature preempted has field or that property right had their busi the ordinance conflicts with state law. ness nude licenses allowed premises, that those were elimi licenses finally plaintiff turn to We class, nated as a and that the Businesses Reid’s claim that the district court erred
were to obtain a class of unable new license summary granting judgment against him. allowing partial nudity serving alcohol lingerie novelty Plaintiff operates Reid because of a restriction on the number of plaintiffs store. other challenged While the City licenses available. The counters that ordinance on basis that its ban on simply process requires due notice and the expres violated freedom respect opportunity guarantees Constitution, to be heard with sion of the Utah license, prior “taking” nothing challenged vagueness to do Reid has ordinance on grounds. application applies ordinance the new licenses in this those “significant businesses that derive a or agree City. sub instance. We with the portion stantial” of their revenues ¶ Although recognized this court has products sale of adult or that devote “sub a property that there in a interest busi stantial display section” sales license, requirements ness process due space products. complaint to such Reid’s can via a hearing, be satisfied notice and alleged language was unconstitu both of Dairy which occurred here. See tionally vague impossible because was Wellsville, Servs., Prod. Inc. v. him to ap determine whether the ordinance ¶81, 49, 13 process UT P.3d 581. Due is not plied appeal, to him. On Reid asserts that implicated by City’s failure to award ad granting summary the district erred in court Businesses, ditional alcohol licenses to the judgment against him because none of the *18 which them would allow to feature semi-nude briefing argument court the district Although dancing granting and alcohol. analyzed vagueness agree. his claim. We such licenses increase the likelihood of Businesses, prosperity denying for the such ¶ summary judgment Because process. not licenses does contravene due law, presents questions of accord no def we ruling erence to the of the district court. ¶ 61 The assert Businesses also that Rather, we review for correctness. Salt it. City authority was without to enact the Mix, Inc., Ready County Lake Metro W. ¶ legislature ordinance at issue because the has 2004 UT We conclude preempted legislative field. summary statute judgment that the court’s district question “places nudity open overly addresses parties order was broad. When view”; public contend that summary judgment Businesses filed cross-motions issues, City’s nudity dancing pre because the ordinance bans the nude them none of establishments, dancing any argument respect in nude it is sented facts or with fact, vagueness fore, Reid’s claim.18 In Utah, none of having the citizens of expressed vagueness them mentioned the claim at all. disapprobation such activities Nevertheless, summary the district court’s through statutes, clearly such would have judgment erroneously order stated that considered nude to be outside the “[plaintiffs’ complaint and causes of action scope constitutionally protected communi- merits, prejudice.” are dismissed on the cation. attempted remedy Plaintiff Reid this over- light 66 In disapprobation of the clear ly by filing seeking broad order a motion people of our state demonstrated for vagueness dismiss his claim preju- without activities dancing, extending such as nude dice, thereby preserving ability litigate his speech protections in this area would it on the merits in the event that the contrary run to the intent of the framers of attempts later to enforce the ordinance our constitution and the Utah citizens who against court, however, him. The district so, voted into effect. Were we to do we denied Reid’s motion on the basis that interpreting constitution, would not be summary judgment motions had not carved substituting judgment but our own value vagueness out Reid’s claim. We conclude people they that of the of Utah when drafted that such an approach is erroneous.' The fact and ratified the constitution. It is not our summary remains that none of judgment place to do so. public Social values and filings purported to vagueness include Reid’s opinion on this no matter doubt fluctuate claim and the record is devoid of time, do, over and as people of this legal factual or support for the district state are free to allow dancing through nude entry court’s of summary'judgment on that legislative enactments or even to amend our claim. parties required were over, protections constitution to extend such carve out a claim that was never even under through process. activities the democratic accordingly consideration. We direct Although argues Chief Justice Durham skill- summary judgment district court’s order fully protection for the be modified to reflect that the dismissal of distasteful, society might argu- find these vagueness prejudice. Reid’s claim is without ments should be directed to elected officials box, expressed at the ballot not enforced CONCLUSION through the courts. light evidence, 65 In of historical it is Accordingly, reject plaintiffs’ we inconceivable that the framers our consti- claims that the ordinance violates the Utah tution or the citizens of this state intended to expression. Constitution’s to free We protect under the constitutional similarly reject plaintiffs’ subsidiary claims speech. freedom of The framers except plaintiff claim, vagueness Reid’s of the Utah Constitution chose a limited con- we conclude should be dismissed without struction for the freedom of that ex- prejudice. In all respects, other we affirm cepted protection right. abuses of that the decision of the district court. This constitutional long construction has history preserving power of the state regulate speech under certain historical 68 Associate Chief Justice WILKINS
exceptions right. widely to that It was rec- and Justice DURRANT concur in Justice ognized at opinion. the time Utah’s constitution was PARRISH’S drafted that obscene was one of the DURRANT, Justice, concurring: exceptions to constitutional freedom of speech protections. dancing, partic- greatness Nude Much of our nation *19 ular, by advance, was criminalized statutes in ongoing struggle effect lies in our to im- both before and after our prove, constitution was individually and better ourselves both by people collectively. ratified the pluralistic system this state. There- Our al- vagueness sexually however, lack City, The of focus on Reid’s in claim oriented business license. The summary judgment proceedings probably the stipulate inapplicabil- declined to ordinance, explainable by City ity thereby the fact preserving ability the had in- the require formed position Reid it would not to a him obtain to reevaluate its at a later time. myriad groups impossible, arguing to succeed in lows countless individuals and the city’s prohibition dancing of what on nude to their views makes violates seek to advance protection the United society oppose and' the views States Constitution’s for a better to result, speech.1 many believe The As a Plain- of those otherwise. who litigation tiffs have competing ascendancy ideas structured the current so contrasting exclusively as to tempestuous protections in debate focus on the public make for Considering the conviction afforded our state constitution. seas. intense ideals, passion to it is no devoted various dispute case, present The accomplishment our small nation has though nominally limited handful to a navigate largely been able to these seas plaintiffs, is a manifestation of the broader peaceful fashion. majority tension the will of between nation, we find As now ourselves society our democratic protections those freedom, wealth, with a combination constitutionally minority. afforded the As a opportunity history. unmatched world general matter, of the democratic view, my factor responsible most this majority regulate and outlaw behavior Constitution, is our miraculous result nation’s ceases at point constitutionally which provided which has sound framework for protected rights unduly infringed. are democratic debate and societal evolution Where, majority as is demonstrated simultaneously protecting while certain opinion, historical evidence indicates that by ordinary political from restriction sexually dancing nude oriented businesses processes. unquestioned importance is not protected within the ambit of commu- and force of Constitution’s terms has constitution, nication our under state spurred greatest ongoing juris- perhaps proper this role of court is to allow the prudential affecting debate this nation: how process to pertain- democratic resolve issues are we to decide what the Constitution ing to the restriction of that conduct. scholarly means? While the vast in majority opinion. therefore concur attention has been directed toward answer- question in this relation the Federal II. THREE APPROACHES CONSTI- TO Constitution, rages through- same debate TUTIONAL INTERPRETATION union, out each the states this of which meaning its own wrestles with consti- separately explain 73 I write to further present requires tution. case court the manner in I arrived át conclu- which questions grapple per- with the difficult above, ques- sion. As noted the fundamental meating proper debate as to the method presented appeal tion in this our is whether interpreting follow when our state consti- protection state constitution extends nude tution. sexually dancing in oriented To businesses. interpret question, answer this we must THE I. INTERPRETIVE provisions relevant of our state constitution TASK AT HAND protections and discern breadth of the ¶71 upon provided are such an We called assess the therein. When faced with task, validity city pro- interpretive step be to constitutional of a ordinance first must sexually hibiting discharge our in- oriented determine how we should words, terpretive Under constitutional In other we must businesses. federal function. law, such “falls within the outer ascertain mechanisms that are available protection.” interpretive First to aid and then ambit of the Amendment’s us in our task A.M., 277, 289, Pap’s U.S. decide which of 'those mechanisms we Erie appropriately (plu- approaches 120 S.Ct. usé. Almost all L.Ed.2d Plaintiffs, rality opinion). interpretation purport begin own sexual- ly provision oriented businesses the ordi- the text of the at issue. The affected nance, difficult, quandary that it if crux of determin- concede would therefore Indeed, and lost in that effort. Heideman v. litigat- S. Salt Lake some of Plaintiffs' dancers have *20 (10th Cir.2006). City, Fed.Appx. ed claims under the clause federal free we, conditions, judges, reflecting changing look for
ing where
as
should
ble of
social
meaning
attitudes,
assessing
perceptions,
when
of that
a re-
guidance
and trends. As
sult,
Drawing
approaches adopted
ap-
contemporary-context
text.
use
interpretation
proach
in relation to the
can lead to the
evolv-
elevation of an
advocated
constitution,
previously
ing
special legal
federal
those
or
social
evolved
view to
court,
status,
essentially
thereby
widely
I
employed
“constitutionalizing”
a
see
possible approaches
approach
to constitutional
held
belief. Such an
relies
three
social
interpretation,
together
premise
with various combi- on the
that
is a
constitution
(1)
assign meaning
enshrining principles,
thereof:
we can'
nations
document
the content
time,
change
text based on the
and views
over
it is
to the
attitudes
which can
and that
(the
society
“contemporary-
contemporary
judiciary
the role of
to discern
(2)
approach”);
assign
activity protected by
we can
mean-
breadth of
constitution-
context
principles
contemporary society.
al
ing
the text based on our own individual
(the “subjective ap-
attitudes and views
¶ 76 It
true that our
is
is
state constitution
meaning
or
proach”);
we can assess
rarely
that
deeply
a document
too
into
delves
understanding
of the text based on the
Instead,
particulars.
it can be conceived of
of those who drafted and ratified the
intent
structure,
as a
outline of our
broad
state
(the
approach”).2
constitution
“historical
enabling
functionality
com-
democratic
while
pelling
moral reverence for the
74 All
approaches
three of these
ask the
majority.
certainly
those not in the
It can
question
provision
“what
mean?”
does the
argued
we
interpret
that
should
the constitu-
contemporary-context
approach
asks
give
tion to
effect to the societal
values
provision
should the
mean
the con-
“what
document, independent
exist in
text of our modern values and attitudes?”
signify
words chosen to
those
values.
subjective
“what
approach asks
should
words,
that,
may
although
other
one
contend
provision
according
mean
to the inter-
language expressing
the constitutional
judge’s
preting
personal
own
values and atti-
principle
of free and unfettered
has
asks
approach
The historical
“what
tudes?”
same,
society’s conception
remained the
provision
who
did
mean
those
drafted
society’s
or our
as to
principle,
belief
ratified it?”
answer to the
While the
protected
what
must be
to serve
questions
two
to be a mov-
first
would seem
principle,
changed.
have
one,
target,
at
the answer to the last
least
.theory,
explain
is
I
fixed. As will
hereaf-
contemporary-context ap-
77 While
ter,
question
I
appropriate
believe that the
proach
appeal,
not without
and certain-
last one.
ly
adherents,
lack for
I
does not
find
unsatisfactory for a number of reasons.
Contemporary-Context Approach
A. The
First,
judges in
opinion
it casts
the role of
Turning
contemporary-
pollsters, position
I
skeptical judges
first
to the
am
are
approach,
qualified
undertake,
argued
necessarily
context
it can
it re-
interpretation
quires
popular opinion
of our constitution must be
them
assess
Second,
cognizant
present
of that
societal
cultural
document’s
trends.
and more funda-
approach
mentally,
am at
context. Adherents to this
consid-
I
a loss to discern the source
evolving
judicial authority
living,
er the constitution a
docu-
socie-
conduct such a
to,
malleable,
authorization,
capa-
that is
I
survey.
ment
sensitive
tal
am aware of no
''originalist”
applied
cally
commonly
2. The term
result.
I have
to use
conservative
chosen
interpretive approach I have
the kind of
identi-
approach”
believe
term "historical
because I
explaining
"Origi-
fied here and will be
further.
(it
descriptive
"originalist”
it is as
looks
approach places
refers to the
nalist”
upon
focus the
meaning
provision
historical
of a original
meaning
of constitu-
intent
drafting
the time
constitution's
provision.
subject
That
tional
term has been
ratification),
suggest
I
and do not wish to
adher-
scholarly
extensive
debate and has come to
any particular
originalism.
ence to
strain of
meaning
various nuances
and various
include
approach”
mean
intend the term "historical
Moreover,
thought.
come
schools of
it has
to be
meaning
no less than the
ascribe
no more and
X
charged.
interpretation
politically
originalist
An
opinion.
to it in this
perceived
necessarily
politi-
often
dictate
*21
Subjective Approach
B.
constitution or
The
within the
contained
whether
ability
otherwise,
judges the
to
grants
¶79 Turning
interpretive
to the second
to match what
shape the constitution
above,
subjective
approach
ap-
identified
changing contours of our
to be the
believe
proach,
enticing
I
that it is indeed
to
admit
Third, molding the constitution to
society.
we,
technique whereby
adopt
interpretive
attitudes, even if the
changing social
reflect
judges,
to our own
as
look
attitudes and
adequately equipped to
judicial branch were
protec-
views to discern the contours of the
changes, seems to
a usur-
recognize such
be
by
boundary
tive
erected
our state constitu-
legislative branch is
pation of the role the
approach,
tion. Under this
the constitution
Indeed,
play
government.
designed to
our
by
judges
an instrument
can
becomes
gov-
legislative
branch is
branch
views,
implement
irrespec-
their own social
adjust
expressly designed to
ernment that is
understanding
predomi-
tive of historical
or
contemporary
legal
our
framework to reflect
attitudes, perceptions,
nant modern social
Accordingly, if
is
context.
certain behavior
human,
all,
Judges are
after
trends.
by
state
granted protection
the federal or
not
strong
judge
each
no doubt has
convictions
constitution,
that does not end the debate
society.
makes for a
as what
better
that behavior will be tolerated
to whether
inescapable presence of those convictions
employ
society.
people
remain free to
has,
suspect,
tempted many judges
I
process
prohibit
to allow or
the democratic
legislative
strike down a
act as unconstitu-
happens
If it so
such behavior.
viewed,
per-
tional
the act is
from a
because
society
a certain
prevailing view of
toward
wrongheaded
perspective,
sonal
or social-
time, society is
behavior has altered over
Furthermore,
ly harmful.
when faced with
fully
implement
that view
empowered to
majoritarian
that a
curtailment
behavior
through
process.
Of
use
democratic
reviewing judge
believes
need
course,
majority
the will of the
is checked
part
protection as
humane and decent
protections. Our
established constitutional
society,
temptation
to conclude that the
judges
identify
fortify
role as
is to
engage
in such behavior is enshrined
rights specified in the
protecting
wall
those
penumbra
our constitution’s
within the
majoritarian
constitution from
override.3
say
express protections
powerful
¶ 78 If the framers of the constitution
least.
particular
include a
behavior
chose not to
argument
I
not discount the
protective sphere,
do
within the constitution’s
judges following the course set
their own
addressing
action
that behavior
debate and
judi
compass
discharging their
arena.
moral
when
should occur
the democratic
Soci-
disagreements
cial duties
trusted and valuable stew
ety should seek to resolve
are,
all,
public policy. Judges
after
proper scope
governmental
ards
concerning the
educated,
intentioned,
highly
well
unprotected
through
generally
regulation of
behavior
(we
Further,
contest,
judicial
hope) wise.
thoughtful,
fiat.
political debate and
judges
largely protected,
are
at least
our
society
served
the line
Our
is best
when
system,
ever-changing politi
legislating
clearly
state’s
from the
judging and
between
policy pro
Looking to social attitudes in an
cal winds and are able make
drawn.
through
with the benefit of a full hear
attempt
shape the constitution
nouncements
particular
to a
debate
me as more akin to
in which both sides
interpretation strikes
given
opportunity
to state their case.
legislating
judging,
than
and would there-
are
judicial process
reject
approach to
If the hallmark
fore
constitutional
reasoning conducted with the aim of
interpretation.
sound
rights previously given
Perhaps ironically,
through
it is
the will of the
remove
minority rights gain protection.
conception
protection.
of constitutional
If this
all,
adoption
conclusion,
of a constitution is a
After
government
logical
taken to its
and,
majoritarian process
nature of
due to the
majoritarian power is the
check on
true
minority rights
always
government,
are
majority's
to and reverence
own submission
Amendment of our
some risk of curtailment.
constitutionally
protections.
enshrined
presumably
state constitution could
be utilized
*22
result, irrespec
judicial
possible
interpretation,
the
en
arriving at
constitutional
the best
mounting against
terprise is
to the text of the consti
political forces
anchored
tive of
result,
why many
by
find the
easy1
it
to see
tution as
and intended
its
is
understood
major
entrusting
policy
social
deci
it.
framers and the voters who ratified
notion
judicial
skills,' talents,
appealing.
insight
the
branch
sions to
other
Whatever
possess,
judges
interpreting
language
the
allure, however,
Despite
I also find
something
judges
various texts
are
is
all
in-
subjective
to constitutional
approach
the
frequently required
to do.
to
trained
We are
it
unacceptable and consider
terpretation
texts,
they
interpret
regulations
whether
be
contempo-
than
dangerous
more
the
even
by
promulgated
government
or laws
the
or
rary-context approach outlined above. Un-
parties.
it is
private
contracts between
And
the
contemporary-context approach,
der the
goal
interpreting
well established that our
policy
moor
judiciary
at least
its social
would
give
texts is
effect
the intent of
these
to
to
perceived
pronouncements to either
E.g.,
Boyden,
the texts’ creators.
Burns v.
least,
or,
very
perceived
a
views
the
(court
rules);
2006 UT
,
Approach
Historical
C. The
judicial
people
branch can
best serve the
pursuant
approach
operating
adopting
A
this state
a historical
judge
above,
ap-
interpretation.
This
approach
the historical
to constitutional
third
outlined
provides stability
government
approach,
prevailing
proach
not to
state
would look
society
remaining
principle
to his or
true to the
contemporary
views of
while
ulti-
personal
people
this state
should
questions
her own
views on
who
day. Rather,
mately
society
approach
under
determine how
should
protection
particular action of our
need for constitutional
of mi-
structured. When a
nority
challenged
government
as violative
with the freedom a democrat-
state’s
constitution,
proceed
people
shape
society
ic
of our
we should
see
fit.
It is
fashion
traditional textual
for these reasons that
conclude
methodical
challenged
analysis
that a
of our
analysis by testing the
action
historical
state consti-
meaning
tution
against
appropriate interpretive
of the constitu-
is the most
intended
*23
may disagree
tion.
with
action taken
course to follow when confronted with
We
consti-
branch,
questions.
tutional
legislative
executive
we
regulation
wronghead-
a
find statute or
ed,
silly,
challenged
even
if
act
but
does
III. THE FRAMERS DID NOT INTEND
impinge upon constitutionally protected
not
a
THE FREE SPEECH RIGHT TO
right,
place
to void that act.
is not our
PROTECT NUDE DANCING IN SEX-
Rather,
strictly
judi-
adhere to our
we should
UALLY ORIENTED BUSINESSES
pro-
cial
function and allow
democratic
¶ 87 A
prior
review of our
decisions dem
cess to serve as the mechanism to resolve
very
onstrates that
has a
long
court
“this
disagreements
policy.
over social
history of interpreting
provi
constitutional
advocating
approach,
85 In
the historical
light
background
sions in
historical
problems.
I am not
to its attendant
At
blind
then-contemporary understanding
and the
times, the intent of those who drafted our
accomplish.”
what
were
In re
discern,
constitution is difficult
and even Young,
n.
1999 UT
15 &
historical to constitutional is nevertheless bereft tation, alternative, I to ascertain the framers of the see no other workable the intent of provisions no other would not constitutional issue. The Chief alternative that unneces- this, by sarily justifies arguments. blur the between the branches of Justice two lines First, government, way argues meaning balancing and no better she plain argument regarding and that same therefore unnecessary “establishment,” to consider the intent of the it is terms “cruel and unusu- like Second, appears argue al,” framers. she process.” or “due is ill- on the intent framers reliance proceeds to assert a The Chief Justice because it can sometimes lead bad advised “plain meaning” of “com- so-called definition dissent, Nehring In his Justice ac- results. virtually that is unlimited in its munication” argues-that but cepts approach the historical scope no doubt those who and would astonish supports a historical record natural-law in the included the term Utah Constitution. right, construction the free freely argues She that “the commu- protection offer would some broad, expressed sweeping, nicate” “is sexually oriented businesses. address terms, comprehensive qualifications with no arguments in turn. each of these forum, method, placed or medium of *24 communication,” beyond and that “it is dis- A. The Intent Framers Cannot Be pute communicating that the act of extends Ignored by Asserting Meaning that the beyond to Right encompass mere words a wide Speech Free Is Plain ¶ variety expressive activity.” 116. Infra ¶ Although superficial- the Chief Justice in- ly recognizes import framers’ ¶ “speech” 92 The term as used in the ¶ 127, tent, inquiry she avoids real infra no United Constitution also includes States claiming provision that the into that intent “forum, method, qualifications medi- as or unambiguous. Specifically, at issue is she speech, um” of but that led to it has not argues that the Utah because Constitution being in construed the broadest conceivable plainly what constitutes free itself defines precisely sense. that is Yet the construction necessary speech, “it is to consult the plain the Chief Justice advances as the mean- proper in framers order to arrive interprets of “communication.” As she ¶ speech.” of free 130. Yet definition Infra dissent, virtually any con- word her conclusively as defin- the term she advances obscenity-to soliciting purveying duct —from by no ing speech—“communication”—is prostitution qualifies as “communication” — interpretation plain requires no means would, accordingly, protec- be afforded purports than does the term it to define. less long tion under our state constitution so ¶ question what 90 The constitutes fall conduct does not within her narrow speech under the United States Constitution interpretation our constitution’s “abuse judges has occupied is one that scholars right” language.4 that broad This construc- for over two centuries. No one could reason- arguably require tion would the State ably suggest term is so as to that the clear satisfy scrutiny every heightened for almost meaning. its preclude regarding debate Nor regulates disagree law that conduct. that suggest. does the Chief Justice so does She use of the word “communicate” framers’ contend, however, famously ambigu- that a broad As the mandates such construction. term is clear in the Utah ous rendered Con- plain meaning does not the dissent’s mandate stitution because that document defines interpretation, interpretation that must stem “speech” as “communication.” The obvious external to the sources that the reasoning flaw this term “com- text. easy munication” is more amenable to no Indeed, Justice, although the Chief They “speech.” than definition is the term relying nominally plain meaning analy- aon beg nature are two words of the same that sis, clearly contemporary to our context “speech” looks interpretation. argue To guidance interpretation. in her She as- words so clear “communication” are question meaning serts that is not whether the preempt regarding “[t]he debate conduct more tenable than it would be make the framers would have considered the no Indeed, (quoting State v. Chief Durham cites with favor a it sexual conduct.” Ciancanelli, Justice Infra Supreme passage Oregon Court which the 339 Or. protection of (2005)). concludes that the under "explic- that state's even to constitution extended communicative; communicative, that property if it is crime rates decreased values. asserts enough.” point 130. She further Alexander Biekel makes a salient when Infra provisions grant “[t]o hold the free argues he an unrestricted Utah Constitution mean what “right obscene pictures to obtain books and of consti- they did in 1896 risks the creation in the market” have a more fundamental the funda- tutional doctrine eviscerates society merely rising effect on than crime ” ‘freely communicate.’ In- mental Biekel, rates. The Morality Alexander Thus, meaning of the it is not the (1975). states, As Consent 73-74 Bickel fra speech right it that to those who created grant To is to affect the world Justice, governs, according to the but Chief Perhaps about the rest us.... each meaning contemporary context. our can, wishes, effectively us if he avert essence, applies a contem- the Chief Justice Still, eye stop the ear. what com- approach plain language porary-context monly read seen and heard and done garb. all, not, us upon intrudes wanted or contemporary- Consistent with her constitutes environment. approach, supports context the Chief Justice open possibility Id. I remain that there her assertion that the term “communication” acts, may be some communicative or other- sexually has come include nude wise, degrade that so the essence of human by describing the evolu- oriented businesses dignity denigrate so broad notions of *25 public gen- tion of attitudes toward dance that, societal values even in the of absence Yet, in particular. eral and erotic dance demonstrable, tangible negative secondary our past, this court has stated in the task is effects, majority the democratic be should the intent of the framers when discern curtailing capable of the behavior. interpreting provision. a constitutional We Critique B. The Justice’s the beyond attempt illumi- stray this role if we Chief of Approach Historical Is Flawed meaning particular language by of nate turning understanding to our modern of the ¶ completing purported 97 her plain After argued used. As I have Part II terms analysis, meaning Chief Justice Durham as above, it is appropriate more under our tri- infirmity interpretive serts that of the partite democracy constitutional to deter- approach adopted by en sexually whether nude ori- mine by by dorsed this concurrence is illustrated ented businesses was within the included How.) (19 Sandford, Dred Scott v. 60 U.S. thoughts “to right communicate ... (1857), Plessy 15 L.Ed. v. Fer right by opinions” as was understood guson, 163 U.S. S.Ct. L.Ed. who created it. those (1896). Supreme The United States
¶ wrongly cases, decided these Court the Chief addressing Before Justice’s the Chief argues, interpretive because it Justice used critique approach, I find it historical techniques by to those used ma necessary cursory similar briefly to discuss dis- her jority ignoring the text of the majority’s analysis Constitution our con- missal — relying at existing and instead “on the law language. It right” stitution’s “abuse of that In adoption.” the time of the Constitution’s is remarkable that the Chief con- Justice ¶ 135. The Chief Justice asserts that “communicate” in its sense strues broadest fra Supreme “long United Court has since giving an States right” while “abuse of that exceed- rejected practices accepted the notion ingly bases this narrow construction. She that, provisions adopted dic the time these were on her at a min- construction conclusion meaning imum, tate the of the constitutional an text.” “abuse” must entail “harm.” some ¶ ¶ 135. See Infra infra ¶ Assuming Chief Durham’s 98 The results these cases are indeed Justice inextricably criticizing ma- premise troubling that “abuse” is linked to their use “harm,” jority’s approach I concept interpretive am not convinced that the warrants some First, tangible, I I dis- of “harm” should be limited to dele- discussion. should note that effects, secondary agree result in cases. terious such as increased with the each these Second, interpretive Regardless, relied I do not contend approach the best majority, approach perfect, have called the historical but by what I upon Scalia, Orig the alternatives. See Antonin approach, does not advocate historical Rather, Evil, L.Rev. The Lesser 57 U. Cin. ignored. text inalism: constitutional (1989). that the give may It well be approach is 862-63 goal of the historical scope by understanding of the of some those who historical to the text as understood effect incongruent with could be and ratified it. An examination constitutional framed scope should be. importance is of modern views what that central the text itself any resolving mechanism such achieving goal. But the judges incongruity belongs not to perceived Third, approach does the historical people. but to the practices accepted at the provide that not dictate the provision adopted should time Regardless Degree C. to Which statutes exist- The common law and result. Framers Were Naturalr- adopted provision time a do ing at the Influenced Concepts, Law Intent Controls Their meaning pro- dictate Question Speech What Constitutes vision, they certainly qualify as evidence but question bearing upon the must be believe dissent, Nehring em- 102 In his Justice inquiry of our was the at the heart —what ploys approach, accepting historical understanding and rati- of those who drafted appeal is to premise that role in this constitution? The Chief Justice’s fied our rati- the intent of framers and ascertain type the use of characterization regarding the fiers of the Utah Constitution ¶ 136, “pure speculation,” evidence as infra fur- speech. He of free Infra ignores important segment of the overall agrees that we exam- ther should do so in- picture. There well be historical ining historical the constitutional text and existing-law where evidence is over- stances ¶ 158. His textual and his- evidence. Infra other, come more direct evidence *26 examination him to the conclu- torical leads however, case, In all framers’ intent. in- sion that the framers and ratifiers were supports, of the intent evidence framers’ by concept a of the fluenced natural-law refutes, majority, opinion’s the rather than speech, of than a Blackstoni- freedom rather our. interpretation of constitution. running assumption an one. A basic view, Finally, my ap properly throughout a his dissent is that Utah’s free analysis may yield provisions plied speech historical well have must either natural-law be words, opposite In ei- ed the result Dred Scott based or Blaekstonian. other analysis against Plessy. Although searching only protects a of the constitution ther (Blaekstonian), scope of this con opinions prior these exceeds the restraint see William Blackstone, *151-53, currence, noting that the Su or it it does bear Commentaries not, my “in- preme opinions protects speech except in these did all' where it Court view, apply approach. juries] any per- ... other in' his properly the historical individual (natural law), any son, good cursory superficial application property, A or or name” to, best, Tucker, approach interpretive George leads at sus Blackstone’s Commen- St. pect results. This true of the historical taries: With Notes and References type If approach as well. a court allows one Constitution Laws the Federal Gov- (1803), original re- of evidence of intent to dictate ernment United States in, result, may printed it that intent. For 5 The Constitution misconstrue Founders’ instance, (Philip Ralph B. Lerner there is indication that 152-58 Kurland & some 1987). eds., my view, majority In intent of the Plessy ignored either or failed likely important portions historical in between. consider of the framers was somewhere McConnell, Origi accepting premise Michael But even record. See W. Decisions, speech and ratifiers to be Desegregation nalism and the framers intended (1995). degree a protected to a nat- Va. L.Rev. The result consistent view, remains, they question may have had what that case been different ural-law applied they speech consider to in the first properly approach. Id. did indicia, only if one Or, specifically posed philosophies of both has as more instance? they right intend effect? appeal, did freely thoughts opinions” “communicate Second, both the and Jus sexually ori- to nude extend Nehring writings tice cite the Thomas M. view, my all of the ented businesses? Cooley position. to support Justice evidence available to textual and historical Nehring passage characterizes a from Coo supports conclusion that did not. us ley’s treatise “a natural as manifesto.” notes, Nehring a under As Justice ¶ 172. But at least one court has clas Infra Lockean, natural-law, concept right Cooley sified as an adherent to the Blacksto right exists speech, independent of free Ciancanelli, nian view. See State v. 339 Or. A in- constitution. constitution that (2005). 623-24 & n. 10 P.3d speech merely right cludes a of free affirms following passage Cooley’s treatise right; a not the existence of such it does strictly demonstrates that he does not adhere view create it. The natural-law further holds to either view: by speech restricted liberty speech We understand the only speech to the extent state only liberty press imply to pub- injures issue another. Under Blackstonian lish, immunity complete publi- but for the right, speech view of the free cation, long so as it is not harmful in its Further, created the constitution. in the character, by such when tested standards pure Blackstonian view described Justice as the law these affords. For standards protected only Nehring, speech against we must to the common-law look rules Thus, prior concept restraint. natural-law which were in force when the constitution- right provides much for a guaranties al established. were higher protection than measure of does the concept. Blackstonian Cooley, Thomas M. A on the Treatise Consti- Nehring Upon tutional Rest 104 Justice characterizes the Limitations Which majority opinion adopting Legislative Black- strict Power States Ameri- (Leonard ed., Levy protects can stonian construction Union W. Da (1868). 1972) against prior Capo passage, the ma- Press From this restraint. read jority protecting speech Cooley it is clear that understood freedom of opinion from both just protection prior abridge- and other forms to include more than restraint against prior ment or to the extent But is also clear restraint intended restraint. *27 ample scope that he of the framers. There is evidence that understood the free by right speech protection speech the free as contained in the influenced “the be purely Utah is neither Blacksto- common-law were in force Constitution rules which when First, guaranties were purely nian nor natural-law based. the constitutional estab- words, existing Id. the law liberty responsibility and contains lished.” In other clause time adopted indicia Blackstonian the natu- at the constitution was of both the and the. speech that certain forms of conception rights. ral-law of free As be used demonstrate intended to fall within opinion, in the were not demonstrated speech “responsible protective the free language sphere for the abuse” has its Thus, conception of Supra right. Cooley’s roots in Blackstone’s Commentaries. ¶¶ scope speech as of the was consider- 31-40. But demonstrated in Justice free dissent, ably natural-law the “inherent inalien- less than the con- Nehring’s extensive Nehring. language has its in the struction described Justice right” able roots sum, given Nehring that the framers Utah philosophy. natural-law Justice es- Blackstonian included both sentially concludes that the natural-law lan- Constitution guage speech language natural-law the text liber- protection, controls the level clause, my ty responsibility Cooley and that adequately but he not in view ac- does position took an the debate “responsible count for the inclusion of the intermediate I cannot ac- language. begs philosophies, His between the two abuse” conclusion assumption question: why cept Nehring’s Justice did framers include Moreover, I am unable to discern right in the constitution is strict- tions. speech opera- that has since come into ly based. mechanism natural-law type constitutionally protect this tion to now however, ¶ even ac- importantly, 106 More regulation. I am dancing from state of nude ratifiers intend- the framers and cepting that unwilling to strike down the ordi- therefore a natural-law level of ed to afford at issue in this case on constitutional nance is, they if intended to even protection, concur, majority opin- grounds, and I in the another, injurious not protect all ion. remains, they what did consider question Nehring, like Chief speech? Justice to be Durham, essentially concludes
Justice
Justice,
DURHAM,
concurring in
Chief
expres-
a modicum
all
with even
conduct
part
dissenting
part:
speech under the Utah
constitutes
siveness
respectfully
109 I
dissent.
essentially
This conclusion
Constitution.
speech into a vir-
freedom of
transforms the
guarantees
110 The
Constitution
Utah
tually
freedom of conduct
unlimited
in-
of Utah “the inherent and
the citizens
satisfy
some level
require the state
would
freely
...
to communicate
alienable
scrutiny
every stat-
for' almost
heightened
thoughts
opinions, being responsi-
su-
regulates conduct. See
Const,
ute or rule that
right.”
of that
ble for the abuse
in-
people
of this state
pra
92. That
proper interpretation
of this
art.
1. The
to this extent is
tended to bind themselves
dancing at
provision requires that the nude
highly unlikely.
acknowledged
pro-
appeal
issue in this
be
question
plain
of what the
But even the
communication as a matter of
tected
Furthermore,
to be
meaning.
ratifiers
I
not
framers and
considered
do
believe
us. We need
than the one before
dancing performed
private
is broader
establish-
nude
they considered the
only determine whether
paying
ments for
customers constitutes an
dancing in sexu-
conduct at issue here —nude
right of free communication.
abuse of the
speech.5 All
ally
oriented businesses —to
justifications
re-
Finally, I find the
for the
evidence avail-
and historical
of the textual
Lake both
proffered
South Salt
striction
with the conclusion
us is consistent
able to
in furtherance of a
unpersuasive and not
not.
did
legislative
Accordingly,
legitimate
interest.
ordinance to
would hold the South Salt Lake
Indeed,
an unassailable con-
it seems
protect-
an unconstitutional restriction
“speech” and “commu-
that the terms
clusion
speech.
ed
opinions” were
thoughts
...
[of]
nication
drafting and rati-
contemplated
those
bestowing any type
fying the constitution as
LAKE ORDI-
I. THE SOUTH SALT
type of nude danc-
protected status on the
NANCE
UNCONSTITUTIONALLY
Any linger-
case.
ing at issue in the current
THE RIGHT OF FREE
RESTRICTS
the citizens of this
as to whether
doubt
BY THE
SPEECH GUARANTEED
dancing in sex-
protect
state desired
UTAH CONSTITUTION
*28
completely allevi-
ually
is
oriented businesses
¶
dispute in this case centers on
111 The
majority
anal-
by
opinion’s excellent
ated
ordinance, passed
constitutionality of an
addressing
ysis
debate
of the constitutional
(the “Ordinance”), that
Lake
South Salt
speech guaran-
scope
of our state’s free
private
sexu-
completely prohibits dancers
tee,
relating
topic
to the
criminal statutes
dancing
ally oriented establishments
and after the
that were in effect both before
South
constitution,
paying
naked in front of
customers.1
man-
and the
ratification of
(2005).
City
§ 5.56.310
Lake
Mun.Code
have crafted
Salt
ner in
our sister states
which
vio-
According
plaintiffs, the Ordinance
speech protee-
to
interpreted their own free
and
Ordinance, according
plain-
dancing
effect of the
Accordingly,
of whether nude
1. The
5.
the issue
tiffs,
arts,
require
estab-
is to
that the dancers in such
contexts,
speech
is
is
in other
such as in
minimum, "past-
wearing,
perform
at
lishments
not before us.
referred to
ies” on their breasts and underwear
"G-strings.”
that
right
dancing
protect
free'
under the
if we determine
nude
is
lates their
communication, we
proceed
The resolution of this
ed
must
Utah Constitution.2
issue,
my
inquiry:
with
disagreement
second
whether South Salt Lake’s
and source
justifications
majority
concurring opin- proffered
are
and the
for the Ordinance
both the
ions,
proper interpretation
appropriate
and
hinges on the
whether the Ordinance
necessary
“reasonably
legiti
... a
portions
of the Utah Constitu-
to further
relevant
legislative purpose.”
mate
Gallivan v. Walk
tion.3
¶ 42,
er,
2002 UT
However,
Constitution, properly
agree
in
the Utah
also
that section 1
with
may provide
protection for
terpreted,
speech
more
free
right,
while section 15
defines
rights
and communication
governmental
regarding
restricts
action
Prune-
See
than the federal Constitution.7
rights contained in
1. Supra
section
17.
Robins,
74,
v.
447 U.S.
Shopping Ctr.
Yard
liberty
responsibili
115 Because the
(1980).
2035,
81, 100
64
741
L.Ed.2d
S.Ct.
ty
clause defines the nature of free
addition, the decisions of the United States
Constitution,
begin
I
under
Utah
largely
frac
Supreme Court
this area are
my analysis
interpreting
with
clause. In
confusing. Accordingly, I find
tured and
Constitution,
point
starting
the Utah
regarding
caution
appropriate
exercise
always
meaning
plain
should
be the
decisions; my inquiry
federal
application of
Willis,
language.
textual
2004 UT
State v.
pertinent provisions of
on the
here focuses
93, 4,
1218;
County
100 P.3d
v.
Grand
the Utah Constitution.8
¶ 29,
57,
Emery County, 2002
52
UT
P.3d
Only
language
ambig
if the
1148.
textual
Dancing
Commu-
A. Nude
Is Protected
or unclear
outside
uous
should we look
Language
nication under the Plain
Casey,
words to external sources.
v.
State
the Utah Constitution
¶29, 20,
756;
44
2002 UT
P.3d
Univ. Utah
requires that
114
initial task
we
Our
Exam’rs,
408,
4
v. Bd.
2d
295 P.2d
Utah
dancing is constitu
determine whether nude
(1956).
348,
Marshall fa
361-62
As Justice
tionally protected communication. Under
stated,
mously
forget,
“we must never
that it
Constitution,
“in
have the
the Utah
citizens
(cid:127)
expounding.”
is a constitution
are
we
right ...
communi
and inalienable
herent
(4 Wheat.)
Maryland,
McCulloch v.
17 U.S.
being
freely
thoughts
opinions,
cate
(1819).
316, 407, 4
579
L.Ed.
right.”
responsible for the
of that
abuse
plain
116 The
Con
I,
language of
Utah
agree
art.
with the
Const.
1.
Utah
(the
clearly protects
freely
stitution
liberty and
majority that
this clause
clause)
I, § 1.
communicate. Utah
art.
bé read
con
Const.
responsibility
should
broad,
expressed
sweeping,
junction
governmental
restriction
terms,
clause,
comprehensive
passed
qualifications
law shall be
with no
which states: “No
forum, method,
placed
on the
or medium of
abridge
or restrain the freedom
I, § 15. I
press.”
Utah Const. art.
communication.9 While the Utah Constitu-
Utah,
guaran
protections
interpreted
has found
other states have
the free
7.This
court
other
speech guarantees
to be broader than
teed
the Utah Constitution
their state constitutions as
protection
guarantees
broader than the
the feder
under the federal Constitu
offered
similar
415,
I,
See,
example,
e.g.,
Thompson,
v.
al Constitution. For
article
section 8
State
810 P.2d
tion.
417-18,
(Utah 1991) (evidence
the New
suppressed
York Constitution’s free
lan
420
guage has been held to be "broader than
greater privacy expectation
in bank
due
I,
required by
minimum
the First Amendment."
Utah
under
section 14 "of
tax records
article
Constr., Inc.,
521,
Oakgrove
O'Neill v.
11 N.Y.2d
than under
Constitution
Fourth Amendment
1,
277,
(1988);
523
281 n. 3
Constitution);
528 N.Y.S.2d
N.E.2d
v.
Bd.
the federal
Foote Utah
510,
9,
Henry,
734,
v.
Pardons,
(Utah 1991) (due
see also State
302 Or.
732 P.2d
P.2d
808
734-35
Erie,
(1987);
375,
Pap’s
I,
A.M.
571 Pa.
schemes,
11
v.
sentencing
to differences in
article
591,
(2002);
Garcia,
Davenport
812 A.2d
greater
7 of the Utah
affords
section
Constitution
4,
Reece,
(Tex. 1992);
S.W.2d
State v.
liberty
protected
federal Due
interest than the
(1988).
Clause);
Larocco,
Wash.2d
P.2d
P.2d
State v.
Process
1990)
I,
(Utah
(construing article
section
469-71
regarding sibling
greater
I exercise the same caution
to afford
14 of the
Constitution
decisions, though
state constitutional
I do cite
privacy
than
interests
the Fourth Amendment
Constitution,
pertinent my inquiry regarding
where
holding
open
them
the federal
thus
See,
Soc'y
Separa
e.g.,
the Utah Constitution.
inspect
car door to
vehicle identification
Whitehead,
search);
tionists v.
921 n. 6
constituted
Ma
number
unreasonable
1993)
(Utah
1984)
(noting
Lewis,
(Utah
that sister state law
P.2d
tan v.
upon
pertinent).
when
relied
(noting
contexts,
language, constitutional
that different
jurisprudential
considerations
applying equal
Rights
general
"may
lead to different result in
The Utah Declaration of
protection principles
widely
princi
§ 24 than
to reflect
under Article
written
held fundamental
law”).
prin
might
ples: "Frequent
be reached
While
recurrence to fundamental
under federal
presents
impression
ciples
security
case
is essential to
of individual
issue of first
*30
“communicate,”
long
it
forms of entertainment have
been re
not define
tion does
communicating
garded
expressive-speech,
con
beyond dispute that the act of
as forms
See,
beyond
encompass
veying thoughts, feelings,
words to
and ideas.11
extends
mere
“
See,
variety
expressive activity.
e.g.,
(describing
e.g.,
wide
id.
dance as
‘the art of
College Dictionary 227 moving-the body
rhythmical way, usually
II New
in a
Webster’s
(1995)
music,
idea,
“an
(defining “communicate” as
inter
express
an emotion or
information”).
'my
In
change,
of ideas or
story,
simply
as
delight
narrate a
or
to take
in
”
view, resorting to outside sources is unneces
(quoting
the movement itself
16 The New;
sary
interpret
portion
this
of the Utah
(1989)))
Encyclopedia Brittanica 935
see
¶29, 20,
Casey, 2002
Wallace,
Constitution. See
UT
City
v.
also
Wichita
246 Kan.
In contrast
(1990)
P.3d 756.
United
253,
270,
(defining
788 P.2d
dance
Constitution,
States
the Utah Constitution
“rhythmic
...
movement
executed
dif
nature of its
itself describes and defines the
body
parts
ferent
in accordance with
Therefore,
right.10
the relevant
temperament,
precepts,
purpose”
artistic
question
threshold
is whether nude
(internal
omitted)).
quotation marks
In Mil
communicative;
so,
protected by
if
it is
ler,
very
the court stated that dance is
its
unless it
plain text of the Utah Constitution
expression,”
essence “the communication of
right.”
of that
Utah Const. art.
is an “abuse
impose
require
and declined to
an additional
I, § 1.
story
appeal
ment that a dance tell a
or
protection.
the intellect
order to receive
mind,
I now
117 With this framework
Therefore,
gener
dance in
F.2d
1086.
whether nude
is communica-
address
clearly qualifies
al
as a
...
“eommunicat[ion]
considering
question,
In
in nature.
tive
thoughts
pro
opinions,”
entitled to
[of]
inquire
general
is a
first
whether dance
plain language
tection under the
of the Utah
activity
expressive
that is entitled to
form of
I, §
art.
1.
Constitution. Utah Const.
is,
protection.
inquiry
If
dancing done without
then becomes whether
¶ 119
erotic and nude
Communicative
clothing
imparts
particular
likewise
mes-
equally deep
dancing have
historical roots.
sage
nudity
that is stifled when
is banned.
Miller, Judge
“[p]ublic
Posner noted
performances of erotic dances debuted in
clearly
general
Dance in
within
falls
satyr plays
Western culture
category
expres-
of communication
...
reappeared
ancient
... and
Greeks
protected
sion
the Utah Constitution.
early
twentieth cen-
the late nineteenth
[ejntertainment
earli-
“Dance as
is one
(Posner, J.,
at 1089
concur-
turies.” 904 F.2d
forms of
known to man.”
est
ring).
on this dance
Bend,
Modern variations
City
Miller v.
S.
904 F.2d
form
Civil
(7th
can-can
cho-
include “the
and the music-hall
1081,
Cir.1990),
rev’d sub nom.
line,
Bergere and
Theatre, Inc.,
560,
rus
from which the Folies
v.
501 U.S.
Barnes
Glen
(1991)
counterparts
Zieg-
its tame American
(split
111 S.Ct.
“Dance of
Seven
conceptually
is
indis-
oriented establishments
lome,
analyzed
not
but
mentioned
dancing performed in
tinguishable from nude
dancing
Sally Rand
fan
of
majority, to “the
musicals, ballet,
dance,
or modern
and there-
Gypsy Rose
striptease of
decorous
and the
meaning
fore is communication within the
of
in
Lee,
the musical come-
Gwen Verdón
or of
Concluding other-
the Utah Constitution.
Id.
dy Damn Yankees.”
disregard what
that
wise is to
it is
nude
an erot-
Even
ballet includes
modern
dancing communicates.
in all commer-
Like
scantier,
element,
“became
as costumes
ic
dancing
performances, the nude
at
cial dance
in
reaching
proportions
...
scandalous
performed
in this
for entertain-
issue
case is
midi d’un
Diaghilev’s L’apres
As
purposes
paying
ment
customers.
with
faune”
Indeed,
above,
has
at
eroticism
a
Id.
1090.
the other forms of dance described
1912.
message to
nude dancer communicates a
her
staple
distinguished
com-
“a
even become
ap-
through
audience
her movements
York
Ballet and
panies like
New
message
dancing
nude
pearance. The
Moreover,
Id.
American Ballet Theater.”
“
presumably
sexuality.
at
is
issue
one
‘[mjodern dance,’
pio-
a ballet offshoot
expressive
Much as the
nature of modern
others,
by, among
the erotic dancer
neered
if the
dance or ballet would be muted
danc-
Duncan,
long
partial
has
been
Isadora
required
every-day
were
to wear
cloth-
ers
Indeed, contemporary dance
nudity.”12 Id.
ing, message
dancing
of the nude
at issue
Pi-
including the world-renowned
companies,
by banning nudity.
is distorted or diminished
Company,
http://www.pilo-
see
Dance
lobolus
words,
simply
In other
these dancers are
not
bolus.com,
Stephen
Dance
Brown
message
able to communicate their
as effec-
have
Company,
http://www.sbdance.com,
see
clothed,
tively
when
are
however scanti-
using
naked or near-
performed
Utah
ly-
performers.
naked
message
nature
sexual
the musi-
beyond
121 It is
debate that
conveyed
particular
this
form dance is
ballet,
cals,
described
and modern dance
many.
Indeed,
clearly
a scienti-
offensive to
above,
include
and erotic
which often
nude
unnecessary to
poll
fic
is
state the obvious—a
dancers
dancing, are communicative. The
of citizens
state and this
engaged
expres-
in an
performances
such
are
disapprove
expression,
nation
of this form of
exhibition,
point of which is to enter-
sive
explicit messages
both because of its
about
audience;
conveys a
this conduct
tain the
sexuality
frequent
use
and because of
messages. Accordingly, such
variety of
portrayal of
bodies
women’s
to communicate
dancing
nude
erotic
are also
forms of
See,
messages.
A.
e.g., Catherine Mac-
those
plain language communication under
Kinnon,
(propos-
Only
71-107
Words
Const,
art.
the Utah Constitution.
pornography perpetuates inequality
Thus,
question
women).
we
whether
1.
come
between
and harms
How-
sexes
case, per-
dancing
ever,
nude
at issue
fact that
is
mere
sexually
many people may
at
oriented businesses
or
consider
formed
offensive
it
customers,
change
likewise communicative
does
the fact
paying
“low” entertainment
not
message.13
does
communicate a
To
nature.
reality
simple disapproval
grounds
Nor is
moral
a
12. This fact
that "nakedness
reflects
spe-
way marking
special
justification
regulation
and is
a direct
to allow
sufficient
such
dressing
conduct,
or of
point
[A]cts
cialness of
dancer....
which is discussed further infra
undressing may
incorporated
with
into dances
paragraph
gave
Justice
an excel-
White
social, sexual, aesthetic,
variety
or other
analysis
very
lent
of this
issue in Barnes Glen
meanings.”
Sparshott,
the Ground
Francis
Theatre,
Inc.,
Off
501 U.S.
111 S.Ct.
is,
all,
(1988).
body
the human
after
Since
(1991), stating:
L.Ed.2d 504
conveys
primary
dancer
means
forbidding
appear
purpose
people to
surprising
message,
not
his
her
it is
beaches,
stands,
parks,
dog
nude in
hot
meanings
charged
special
...
"nakedness
protect
is,
public places
like
is to
others from
body
[including] sexuality....
[T]he naked
possibly
often,
could
offense. But that
body.
sexually
prepared
offered
so,
purpose
preventing nude
in theaters
be inher-
Insofar as
ently
naked dance
exclusively
since the viewers are
erotic.”
at 368.
barrooms
Id.
*32
dancing is not
simply declaring that nude
dancing
sexually
oriented
hold that nude
5
communication.1
while
is not communicative
establishments
is amounts
nudity in
dance or ballet
modern
plain
124 The
text of the Utah Constitu-
Deciding
elitism.14
freely
class and aesthetic
indicates that
tion also
is constrained
the caveat
expression are of sufficient
communicate
forms of
“responsible for the
that Utah’s citizens are
protection is
quality to warrant
artistic
'
Const,
I, §
art.
right.”
of that
Utah
abuse
task
and undemocratic
particularly difficult
Thus, I
also consider whether nude
must
authority.
judicial
an abuse of
and would be
right.”
that
Id. In
dancing is an “abuse of
may
Moreover,
message
fact that a
the mere
part
liberty
of
contrast to the first
offensive to some does
quality
low
or
be of
clause,
responsibility
this section does not
message
that there is a
change the fact
not
plain meaning
The
is
suggest a definition.
dancing
therefore communi-
nude
is
and that
of the text
apparent,
for on the face
Though
States
activity.
the United
cative
right.”
that
anything could be an “abuse of
dancing
Supreme
has held
nude
Court
necessary
Accordingly,
Id.
it is
to move be-
only
in this case “falls
as that at issue
such
meaning
yond the
to understand the
of
text
of the First Amend-
within the outer ambit
See,
29,
e.g., Casey, 2002
language.
UT
consistently held
protection,” it has
ment’s
¶20,
necessity
(noting
44
756
P.3d
dancing
expressive
...
con-
“nude
is
language
am-
external aids when textual
is
A.M.,
Pap’s
Erie v.
529 U.S.
duct.”
biguous).
1382,
277, 289,
While both
claim to be
on
liberty
that
responsibility
the
clause was
¶¶
text,
16, 87,
supra
reality
is that
convention,
not debated at the constitutional
pay
do no
lip
plain
both
more than
service to
it
much
regarding
makes
the debates
.of
meaning interpretation.20 The result both
clause;
criminal libel
appar-
concurrence
premised
statutory
reach is instead
on the
approach. Supra
ently agrees
with this
and common law as it existed at the
time
¶¶ 42^48, 108.,
majority emphasizes
adopted.
I
Constitution was
believe
during
framers’ reliance on the common law
approach
inappropriate
regarding
the debates
the criminal
libel
case, for the reasons discussed below.
¶
Supra
reliance,
clause.
48. From this
¶
First,
discussed,
majority
as I have
it
un-
concludes
the framers “saw the
necessary
go
establishing
.to
outside the
common law as
constitutional
the boundaries
speech,” supra
text
to determine
order
whether the con- of the freedom of
.and
otherwise,
19. While South Salt Lake makes much of the
21.The
concurrence seems to believe
supposed "secondaty
dancing,
effects” of nude
stating
liberty
respon-
[of
that "the terms
there is no evidence in the record to indicate
sibility
contemplated by
clause] were not
those
problems
actually occurring.
such
are
Absent
drafting
ratifying
the constitution as bestow-
.
evidence,
concluding
such
I find no basis for
ing any type
protected
status on ... nude
is an abuse of the fundamental
dancing.” Supra
approach ignores
V108. This
right of free communication. Nor do I believe
only
proffered
the concurrence's
reliance on
presented by
that the evidence
South Salt Lake
starting point
the text as the
in constitutional
justifies
burdening
speech rights
at
interpretation, supra
but also the constitu-
issue,
paragraphs
as discussed
at
145-55.
infra
tional debates’ failure to indicate that the fram-
bestowing protection
any par-
ers considered
on
Interestingly,
both the
and the con-
Rather,
ticular
form of
communication.
adopt
extremely
interpre-
currence
an
"liberal”
most that can be culled from the debates is that
approach
traditionally
tive
to reach a
conser-
place
the framers intended to
defamation and
noteworthy
vative result.
It is
that such an
criminal libel outside the realm free
approach
only way
is the
to reach the result
at,
¶¶
protection.
interpretive
Supra
both
arrive
conservative
42-48.
approach would dictate the result I reach in-
stead.
rely
likewise
on the common on communication.
This the
must
Id.
framers did
we
Rather,
limits of
law
to discern the outer
“in order
not do.
clear
indications of
speech,” supra
49. Much of
the freedom of
view
that right”
the framers’
of “abuse of
majority’s opinion,
also
the remainder of
phrase applies
demonstrate
defa-
concurrence,
up
adopted by
is taken with
mation and criminal
Absent
libel.
clearer
statutory
common
an examination of
evidence than the
state of the
mere
law
time
existing
law
at the
the Utah Constitu-
inappropriate
I find it
to read the
¶¶
adopted. Supra
tion
49-58.
was
law then existing
entire
into the Utah Consti-
tution.
remarkably
extrapolation
132 Such
liberty
interpreting
method of
unreliable
Furthermore,
point
I believe that the
clause.
that we
responsibility
It is true
relying
history
on
and the common law in
times,
have,
looked to
common law to
interpreting our
is to inform
constitution
help interpret
provision.
a constitutional
result,
approach
not dictate
it. Such
(“When
See, West,
P.2d
n. 24
e.g.,
at 1013
perti
provide background
meant to
construing
provision,
a court
provision,
nent constitutional
but should not
principles.”).
common law
How
consult
define
unless there are clear indicia that
ever, majority takes
reliance
the framers’
this is what was intended.
trust that this
debating
proper
law in
the common
court would be
to allow the
loathe
common
clause,
criminal
and as
content of the
libel
statutory law
existing
dictate
that the framers viewed the common
sumes
*35
interpretation
our
the Utah Constitution
setting
parameters
speech
law
free
as
IV,
example,
other situations. For
article
¶
rights
Supra
an ex
generally.
49. Such
“[bjoth
guarantees
male
section
specific
trapolation
general
to the
enjoy
citizens of
female
this State shall
simply wrong. The criminal
libel clause
civil,
equally
political
religious
all
rights
only
specifically
excep
functions
as a
defined
IV,
privileges.”
§
art.
1.
Utah Const.
speech rights,22
tion
not
the outer
to free
Yet, at the time of the Utah Constitution’s
right
speech
itself.
boundaries of
free
adoption,
prohibited
women were
from serv
framers relied
the common law
That the
jurors.
ing
§
ch.
Laws
Utah
very specific exception
in debating this
does
(1896). However,
I do not believe
all free
should
speech
indicate that
interpret
would
constitution
court
to al
law. The
likewise be defined
the common
discrimination,
low such
tolerable
assumption
particularly
majority’s
disturb
Likewise,
notes,
today.
majority
exist
as the
ing
unambiguous
pro
text itself
because
¶ 55,
supra
around
time our
constitution
only
vides the
definition
free
prohibited
was enacted women were
from
rights,
very
that is
broad. Utah
a definition
money by
earning
public
at all—
I, §
art.
1. Nor does such reliance
Const.
clothed or naked.
Rev.
Utah
Stat.
framers
the then-
indicate that the
intended
(1898). Were South
Lake to
Salt
enact an
existing law to establish all abuses
today,
ordinance to this
I do not
effect
be
right
It
cer
of free communication.
would
lieve that
Utah Constitution could be
tainly
simple
for the fram
have been
task
interpreted
to allow
a severe
ers to note that
it was an “abuse of
such
restriction
right”
then-existing
activity.
all
to violate
restrictions
on communicative
addition,
pure
22.
it should be
that we recent-
statements made with less than
intent.
noted
ly
constitutionality
recognized,
crimi-
cast doubt on the
the Garrison
As
court
State,
SeeI.M.L.
2002 UT
speak-
nal libel clause.
cannot be limited
the motives of the
stated,
¶ 23,
There,
Garri-
public
Materials 207
Commentaries,
that it
which stated
stone’s
ed).
reasoning
Douglass’
I believe that
speech for
not a violation of free
was
that our
The bottom line is
applicable here.
“ ‘blasphemous, im-
government
punish
clearly
unambiguously pro-
constitution
*37
schismatical, seditious,
moral, treasonable,
or
communicate,
freely
even if
right to
tects the
”25
¶
Supra
(quoting
32
scandalous libels.’
is offensive.
message
communicated
Blackstone, 4
*151-
William
Commentaries
recently
Supreme
Oregon
Court
138
53).
analogous
expres
strikingly
free
decided a
constitution,
majority’s reliance on Black-
140 The
under its state
sion case
rights
There,
regarding
speech
free
is
consid
stone’s beliefs
the court
is similar to Utah’s.
“
misplaced.
view of the common
it a crime to
‘di
Blackstone’s
a statute that made
ered
doctrine,
rect,
finance,
English
which has been
present’
public
a ‘live
law reflects
manage,
country
For
rejected
in this
for centuries.
participants engage
s how'
in which the
Ciancanelli,
long
example,
the First Amendment has
v.
339
sexual conduct.” State
(2005)
613,
embody
privilege
(quoting
understood to
121
614-15
been
Or.
P.3d
167.062).
government,
principle
a
which is
criticize the
Presented with
Or.Rev.Stat.
See,
democracy.
e.g.,
in a true
fundamental
argument
same
made
this case
Weisman,
concurrence,
112
v.
505 U.S.
S.Ct.
majority
the court Lee
and the
permits punishment
law
separation
that
the common
into fac-
"[a]
Schism is defined
tions,
obviously
[especially]
quite
a
division within a
formal
inconsistent
schismatic
is
church[,]
attempt-
[or] [t]he
Christian
offense
religion,
freedom of
with the American view of
ing
produce
II New
a schism.” Webster’s
governments
policed
have never
American
(1995).
CollegeDictionary
view
987
Blackstone's
(“If
(1992)
early
communicative conduct falls within the
when
L.Ed.2d 467
passing the
political
[in
actions
Congress’s
protections guaranteed
the Utah Consti-
determinative,
were
tution,
Acts]
Aien and Sedition
if
regulatory
permissible
action is
it is
relevant,
merely
of constitu
not
evidence
properly justified. The
thus
issue
becomes
gut
meaning, we would have
tional
rights in
whether the restraint of free
doctrine to make
current First Amendment
an unconstitutional
restraint.
this case is
censorship.”); Harte-
political
room
¶ 142 The
of this issue turns
Commc’ns,
determination
Connaughton,
Inc. v.
Hanks
2678, 105
657, 665-66, 109
proper
L.Ed.2d
standard of review. As
S.Ct.
U.S.
(1989) (referring
matter,
to seditious libel as
legislative
gen
enactments
initial
are
renounced,
long-de
universally
constitutional,
“this
erally presumed
Greenwood
doctrine”); Ciancanelli,
funct,
at
P.3d
(Utah
Lake,
Salt
of N.
(“Blackstone
that it was
624 n. 11
believed
1991),
“significant
unless a
constitutional
notion of
the common law
consistent with
abrogated by a
right is claimed to have been
press
punish
even an en
freedom of the
Ctr.,
statute,” Wood v.
Med.
Univ. Utah
tirely
public figure,
a
be
truthful attack on
(Durham,
134, 43,
P.3d 436
2002 UT
sovereign
could determine
cause
C.J.,
above, I
dissenting). As discussed
be
publication would have an undesirable
such a
clearly
upon
lieve
intrudes
the Ordinance
(cita
‘tendency1
public peace.”
to disturb
speech rights
Accordingly,
in this
case.
omitted)).
tion
do
believe
legislative presumption
inapplicable
is
extraordinary
Constitution took
here.
silently reinventing politically moti
step of
supposed “ex
adopting other
vated libel —or
rights
under ar-
When
phrase “being responsible
ceptions”
the—in
issue,
“consistently
ticle I are at
we have
right.”
for the abuse of that
Utah Const.
applied
heightened
various forms of
review.”
sup
Again,
§ 1.
there is no concrete
art.
(Dur-
Wood,
134, 43, 67 P.3d
2002 UT
majority’s argument;
the fact
port for the
C.J.,
ham,
dissenting).
example,
For
language is traceable
that the constitutional
University Hospital, 775
Condemarin v.
that the fram
to Blackstone is no indication
(Utah 1989),
height-
P.2d 348
we stated
views, particularly
adopted
ers
his
when
analysis requires
thoughtful
a “real
ened
harmony with
views were so out of
those
legislative purpose
and the
examination
history
law and tradition.26 The
American
legislation
relationship between the
simply
not demons
cited
Similarly, in Lee v.
purpose.” Id. at 356.
trative of free
under the Utah
(Utah 1993),
Gaufin,
tion,
subject
heightened
I
likewise
it to
would
involving speech
one
vindication
cases
standard,
I
scrutiny.27 Under this
believe
many
may
shabby,
citizens
find
offen-
questions
sive,
two
of fundamental
826,
that there are
ugly.”
or even
Id. at
120 S.Ct.
First,
objectives
importance.
whether
legitimate.
proffered by South Salt Lake are
justifications
146 The other
offered
Second,
reasonably
whether the Ordinance is
support
Lake in
South Salt
of the Ordinance
legitimate objective,
necessary
further a
secondary
amount to a host of “deleterious
actually
it
does so. The burden
whether
alleged
effects” that are
to result from nude
respect
elements
on
to these
South
dancing.
prominently,
Most
these include
Salt Lake.
crime,
devaluation,
high
property
spread
specifically
145 South Salt Lake has
cited
diseases,
sexually
transmitted
and urban
promotion
“morals” as
one of the
blight.
prevention
That the
of such second-
purposes
of the ordinance under review.
ary
legitimate
effects is a
legislative interest
view,
my
dancing
legitimately
cannot
nude
See,
beyond dispute.
seems
e.g., Renton v.
prohibited
simply because a
Theatres, Inc.,
41, 48-49,
Playtime
475 U.S.
citizenry disapproves
Lake’s
South Salt
(1986) (discuss-
925,
106 S.Ct.
1279 provisions of-its expression to Nude thefree state Angie Welling, South S.L. Cite 22, Erie, Clubs, News, 2002, City Pap’s constitution. A.M. v. 571 June at 133 Deseret (2002) II). added). 375, 591, (Pap’s appar- is Pa. 812 A.2d 593 (emphasis There thus an city what has As with section 1 of the between article ent contradiction Constitution, “Purpose” Pennsyl section of the Ordi- the relevant section said (the secondary guarantees alleged specifically nance “deleterious ef- vania’s constitution control) to and what its attor- of thoughts fects” it seeks “free communication saying 1, to ney it seeks quoted opinions.” Pa. art. Const. 7. The —that experi- “mitigate” actually it has not Pap’s effects II also ordinance at issue in was strik enced. I exists similar, “dancers, believe contradiction ingly requiring the aat I Pap’s minimum, decision has sent because with to cover themselves what are signals municipalities to worst of mixed commonly ‘pasties’ and known as a ‘G ”32 country: Constitutionally protect- across the string.’ Pap’s II Id. at 594. The court expression subject meaningless ed to and struck down as an the ordinance unconstitu gov- regulation, based ineffective speech protected infringement tional of free legal of the correct ernment’s articulation Pennsylvania Id. at 613. Constitution. no reason to follow such an mantra. see hardly The court “[i]t noted that onerous approach the Utah Constitution. under require regulation that a that would seek govern expression, in a such offered closed view, my 153 under the standard patrons, consenting establishment to adult requires South Lake Utah Constitution Salt narrower, accomplished by less a intrusive support prohibition on danc- its total nude expression method than the total ban on secondary more than sources. adopted at 612. here.” Id. utterly Lake has failed to demon- South Salt secondary strate “deleterious ef- , Similarly, the Massachusetts Su occurring actually fects” as a result of are preme recently that a Court held local inde Thus, dancing. nude it has failed to show cency banning nude statute reasonably is even neces- the Ordinance private business was unconstitutional under Moreover, sary anything. to combat South the free of the clause Massachusetts requiring Salt Lake has not established that Licensing v. Bd. Constitution. Mendoza sexually private dancers in oriented estab- River, 188, Fall N.E.2d Mass. pasties G-strings actu- lishments to wear (2005). The court held the statute un ally prevents any problems the Ordi- constitutional examined under either a when designed remedy. supposedly nance scrutiny. or an level of strict intermediate Therefore, Lake has South Salt not met the stated, ... Id. The court “The ordinance heightened scrutiny prong second completely prohibits constitutionally pro standard. expressive tected form of conduct within the city I reach is limits.... is tantamount censor [It] 154 The result consistent with ship expression. of such No mat protected of other state courts that have decisions test, what similarly this issue under worded ter the formulation such considered tailored,’ ‘narrowly complete and is provisions. example, state For ban is not remand, Pennsylvania Supreme ground.” Id. following unconstitutional on Other supreme recently ordi- courts have reached similar Court considered whether the state considering analyzed by Pap’s nance I Court when similar statutes.33 violated results Erie, City justifications nearly Pap's v. Pa. proffered ous effects.” 375, A.M. were also (2002). 812 A.2d to those South Salt identical offered Lake. Pap's stated that the II ordinance council wished Kodiak, 33. See also Mickens v. a recent increase in live enter- "limit[] (Alaska 1982) (holding unconstitutional City, activity tainment within the adverse- nudity prohibiting an ordinance establish ly impact public impacts and threatens compelling serving because no ments reasons alcohol health, by providing safety atmo- and welfare prohibit based on exist to violence, harassment, sphere conducive sexual expression); Harris the content of the Sys. Entm’t intoxication, Inc., public prostitution, spread 386 S.E.2d 259 Ga. prohibiting (holding sexually that an ordinance transmitted diseases other deleteri- conclusion, I 156 In find that the Ordi- and the dissent and endorsed Justice Dur- operates as a clear nance restriction of free rant in his concurrence. *42 by speech rights protected the Utah Consti- begin 159 I with the constitutional text. tution. Salt Lake has not South demonstrat- I, Article section 1 states: restriction, necessity of this ed the nor has it All men have the inherent and inalienable actually shown that the Ordinance furthers right enjoy to and defend their lives and objectives. proffered Accordingly, of its liberties; acquire, possess protect to and I would strike down the Ordinance as an property; worship according to to the dic- expres-
unconstitutional restriction of free
consciences;
tates of their
to assemble
sion.
peaceably, protest against wrongs,
pe-
and
grievances;
tition for
redress
to commu-
NEHRING, Justice, dissenting:
freely
thoughts
nicate
opinions,
and
being responsible for the abuse of that
respectfully
157 I
dissent from categori-
right.
cally consigning
to the realm of
I,
I,
Utah Const. art.
1. The text of article
expression
protective
outside the
reach of the
section 15 reads:
Utah Constitution.
Chief
Unlike
Justice
passed
No law shall be
abridge
to
or re-
Durham, however, I do not conclude that the
strain
the freedom of
or of the
South Salt Lake
ordinance is unconstitu-
press.
prosecutions
In all criminal
li-
for
would, instead,
tional.
I
remand the matter
may
given
bel the truth
be
evidence to
to
the district court
evaluation under the
jury;
the
if it
appear
jury
and
shall
analytical
applicable
assessing
model
the
true,
charged
that the matter
as libelous is
regulation
under the First Amend-
published
motives,
good
was
ment
United States Constitution.
justifiable ends,
party
shall be ac-
part company
majori-
with both the
quitted;
jury
shall have the
ty
on one of
points
and the dissent
the few
to determine the law and the fact.
upon
they agree:
liberty
that the
I, §
Utah Const. art.
I,
responsibility clause of article
section 1 of
majority
160 Both the
and Chief Justice
complementary
the Utah Constitution is
Durham read
provisions
these
to describe the
governmental
restriction clause of article
complement
same
rights
respecting speech
I, section 15. I
pro-
find these constitutional
expression.
Accordingly,
presume
by topic expression—
visions to be related
—
rights
by
that the
liberty
conferred
but
provisions
little else. These two
have
responsibility clause are coextensive with
separate
lineages.
and distinct historical
placed beyond
power
govern-
those
The textual and historical evidence leads me
abridge
ment to
or restrain in section 15.
to conclude that whatever the men who draft-
sure,
ed the
pro-
Utah Constitution intended these
161 To be
appeal
there is intrinsic
something quite
visions to mean was
imposing symmetry
differ-
guar-
majority
ent from
hypothesizes.
what
appear
protect
antees that
rights.
similar
My
reading
alternative
of the intent of the
rights
The notion that the
to “all
reserved
framers and
interpreta-
by
liberty
ratifiers —the third
responsibility
men”
clause
tion offered
this court in this case—uses
rights placed beyond
are the same
power
tools,
the same
the examination of text and
regulate
govern-
the state to
under the
evidence, employed by
majority
historical
mental restriction clause can also be defend-
certain nude
conduct where alcohol is served "is
corresponding
of freedom of
to ...
police powers
diminishing
unconstitutional exercise of
Twenty-first
effect of the
Amend-
stringent
respect
even under the
guarantee
less
content-neutral
ment with
to the Federal
test”);
Auth.,
Liquor
expression”).
Bellanca v. N.Y. State
City Bangor
freedom of
But see
Diva’s, Inc.,
(Me.2003)
N.Y.2d
N.Y.S.2d
N.E.2d
830 A.2d
(local
(holding
topless
prohibiting
that a ban on all
ordinance
nude entertainment
premises
liquor
liquor
licensed to sell
where
is served held constitutional be-
unconstitutional
speech rights
under
state constitution be-
cause the Maine Constitution’s free
"prohibit[
cause the New
nudity
York Constitution does not con-
]
do not
the exclusion of
based
provision
alcohol”).
"modifying
guarantee
solely
tain a
on-premises
the State
on the
sale of
exception
government
necessary
applying
that reserves
as the
result
ed
proscribe
the offense
promotes
goal
statute
rule of construction
structure,
harmonious,
parallel
internally
interpre-
of criminal libel. This
al-
consistent
coincidental,
though
provides
statutory
likely
texts.
a means
tation of
and constitutional
statutory
explain
responsi-
said in
context of
for the
how the
As we have
bility
might
applied.
interpre-
passed
“A
as a
clause
Its
interpretation,
statute
way:
parts
theory
not in
or sections and is
tive
be described this
whole and
expressive
granted by
general purpose
government
and intent.
animated
one
expressive
each
or section
article
section are the same
Consequently,
part
should
*43
every
government may
abridge
the
not
connection with
other
construed
I,
a
or
the
of article
part or
so as to
harmonious
restrain under
terms
produce
section
¶ 54,
I,
Maestas,
expressly
section
If article
State v.
2002 UT
15.
section 15
whole.”
(internal
permits
government
criminal
quotation
621
marks omit-
the
to enact
and,
ted).
moreover,
libel
libel
criminal
statutes —
a
permit
provide
statutes that do not
truth to
¶
achieving a
majority,
To the
seamless
162
government
defense —the
should likewise be
I,
I,
1
article
section
and
tie between
article
the right
able to
abuses of
to commu-
define
importance,
great
15 takes
be-
section
on
opinions
thoughts
using
nicate
and
the model
majority to
it emboldens the
take on
cause
guide
as a
to what consti-
criminal libel
perilous
explaining
task of
the otherwise
tutes an abuse.
“responsible
it means to
for the
what
expressive rights recognized
majority
successfully
164
must
of’ the
The
de-
abuse
notes,
majority correctly
premise
fend its
that the rights
1. As the
described
section
I,
I,
liberty
and
article
1 and
section 15
“responsibility” component of
section
article
generate
occupies
place
persuasive
a
in our
are identical in order to
responsibility clause
unsupported
any explanatory
force behind its conclusion that nude
constitution
protected expression.
language.
interpretive
Our
does
is not
This is because
confidence
extend, then,
concluding
make
beyond
majority
that the
must
the case that
“liberty”
government
Blackstonian view that
has
“responsibility” clause tethers
I,
challenge
authority
regulate
applies
1.
speech
of article
section The
broad
element
I,
I,
confronts us
to determine what an
both article
section and article
section
I,
thoughts
the text
sec-
to communicate
15.
believe that
of article
abuse
sanctions,
opinions
any,
if
tion 1
the historical context of that text
and what
responsibility
liber-
accompany
for abuses of that
leads instead to the conclusion that the
I,
ty
provision
responsibility
of article
right.
section 1
not written
the hand of Wil-
attempts
majority
first
sur-
to the
closely
liam Blackstone nor
linked
examining
challenge by
mount this
other sec-
I,
speech
clause of
section
restriction
article
Rights.
tions of
Declaration of
It rea-
ma-
Accordingly,
I cannot
endorse
sons, quite plausibly,
text of
that the
article
jority’s
ratifi-
that the drafters and
assertion
I,
might
interpretive
section 15
lend
assis-
“respon-
ers
the constitution intended
liberty
responsibility
tance to
clause.
sibility”
governmental
to invite
clause
broad
I,
happens,
As it
article
section
is con-
to be
power
expression deemed
to restrict
I,
in a manner similar
article
structed
immoral.
responsibili-
liberty
section
Just
I,
begins
Blackstone’s Commentaries
ty provision
article
section
William
England plays
preeminent
rights reserved
“all
on the Laws
a broad statement of
I,
men,”
majority’s
ease.
making
article
role
historical
the first sentence of
section
speech
advanced
doctrine
imposes
government
on
restric- Blackstone
broad
Then,
majority
ability
speech.
freedom that
characterizes
regulate
tions on its
adopted
“liberty”
The Commentaries
just as article
section follows
“conservative.”
press
“responsibility”
the view that freedom of
limiting
clause with the
lan-
little
qualifies
prior
speech,
article
re-
restraint
but
guage,
section
barred
governmental regulation
majority
Blackstone’s
with an
else. The
contrasted
strictions
interpretation
injury
“any
person,
with the “liberal”
conservative
other individual in his
high
approach,
property,
good
which reached its
watermark
name.” Id. at 622-23.
Revolutionary
This
era.
“liberal” view
ended,
eighteenth century
170 As the
provided
was one that
however,
began
states
“responsi
to add the
protection
expression generally.
Under
bility”
up
element to what had
to then
been
interpretation, expression
the “liberal”
was
freedom of
formulation that featured
considerably more difficult to “abuse.”
“liberty”
majority
element. The
interprets
marking
this trend as
the resur
166 The
traced the formulation
gence of
approach
the Blackstonian
to free
speech provisions
of free
in state constitu-
a tipping
of the balance toward
throughout
tions and
a trend
noted
first
authority
government
regulate
century
half of the nineteenth
to include
“blasphemous,
immoral, treasonable, schis-
“responsibility”
qualifying
clauses
their free
matical, seditious, or scandalous libels.” Wil
speech protections. According
majori-
Blackstone,
liam
4 Commentaries *151-53.
ty, by
the time the
Constitution was
proposition
for this
case
most convinc
drafted,
triumphed. Expres-
Blackstone had
*44
ingly
provisions
made where constitutional
restraint,
sion
from prior
was free
but little
protections
speech
do not cloak their
of
else.
Ciancanelli,
rights
natural
language. See
difficulty
little
accept-
167 would have
(noting
status of nude will illustrate this to combat harm to women. But problem. legislature majority The.first Utah explain reen- does not how we would statute that principled acted a territorial made it a conduct a review that would take dance, “employ any prom- female crime to us to this obvious result. The musical instru- enade, any or otherwise in place exhibit herself’ ment ban in early was as 1876 and “saloon, cellar, room, or public Yet, dance dance reenacted after clearly, statehood. garden, highway, any public place or what- more than a long-standing territorial statute (cit- soever, excepted.” Supra theaters or the statute’s reenactment after statehood (1898)). § ing Utah Rev. required Stat. This is to establish the intention to de- injunction certainly restricts prive dance. expression form of who constitutional It is far less clear that it is protection. majority intended to does not tell us expression. is, restrict requirement what that say other than to enough there existed historical evidence ¶ 188 While the statute bans women from satisfy majority dancing nude dancing public, it does not forbid men to would unacceptable have been considered dances, impersonate promenades, women in and therefore is not entitled to constitutional any or other exhibitions. I make no claim to protection. knowledge drag historical about entertain- ment in at the If Utah time statehood. majority’s 191 Also left unresolved in the existed, approach it is safe to assume it was not en- dancing per- the fate of nude couraged. in drag Whether entertainers in settings sexually formed other than in performed point. in Utah is not the It By oriented branding businesses. all nude by criminalizing dancing rather that dancing female unprotected by legislature may Constitution, not have intended to majority Utah seeming- has content, target preserva- but ly had mind the cut shielding nudity itself off from in mod- century’s gender-based tion of the nineteenth governmental ern dance or ballet from intru- morality. Accordingly, sion. agree I with Chief Justice critique majority Durham’s opinion’s companion 189 A statute to the ban on shortcomings in respect. dancing female point makes this even more compellingly. exposed Territorial’ law 192 believe that it is unfortunate played any woman who majority musical instrument disregard has chosen to the fact hire, drink, gain any “for or ... drinking that the application ordinance restricts its saloon, cellar, public sexually dance room or dance oriented businesses in of a favor garden, any common, and, public highway, or or sweeping my opinion, analysis flawed street, vessel, steamboat, on a or or railroad syllogism: that follows this obscene ear, house, any disorderly place or in lewd was not protection entitled to constitutional whatsoever, persons where two or more obscenity, are nude therefore together” assembled dancing enjoys fine and one no protec- $100 (1898). jail. month in Rev. Stat. tion. This statute was no more about music than ¶ 193 I do not believe that the companion prohibition on female prepared adopt position terri- *48 Through was about dancing. both of these torial prohibited statute that a form of ex- enactments police the State exercised its pression part and survived to become roles, power regulate gender expres- not laws the State of Utah denies constitution- legislature’s sion. The concern was with the protection al expression. to that The ab- messenger, message. not the sence of clear evidence that the Utah Consti- ¶ would, 190 No member of this court I tution absorbed Blackstonian doctrine into its believe, seriously take a any contention that text makes it even more difficult to deem the statutory proscriptions against statutory women and common law treatment of cer- playing musical enjoy instruments do not tain expression categorically ineligi- forms of protection constitutional be for protection. banned ble constitutional
1287 ¶ therefore, conclusion, legiti- my summary dismissal of “morals” as a I 194 reach I, history justification section Her text and of article mate the ordinance. that the I, inten- proposi- 15 1 article section manifest to federal authorities for the citation protect expansive framers to expression tion of the sim- tion that cannot be forbidden every per- expression inherent offends ply because it the moral sensibilities son, governmental intrusions independent majority true and of a of citizens is both by justified by philosophy Blackstonian that misleading. The cases that announce provi- extrapolation from criminal libel directly principle dealt with enactments I, section 15. I am therefore sions of article See, targeted expressive e.g., Unit- content. majority wrong in con- that the convinced Inc., Playboy Group, ed States v. Entm’t men and rati- cluding that the who drafted L.Ed.2d U.S. S.Ct. fied intended the “re- the Utah Constitution (2000); California, Cohen 403 U.S. provision empower sponsibility for abuse” (1971). 1780, 29 L.Ed.2d 284 S.Ct. speech. to restrict “immoral” government City South Salt Lake ordinance is not direct- content, time, place, but is ed at rather a join in Although I Justice the Chief regulate manner restriction seeks concluding dancing that nude falls within clothing persons manner —minimal expression by protections afforded the Utah —in expressive may appear, engaged whether in Constitution, join I in her con- do either otherwise, sexually activity or within a ori- City that the South Salt Lake ordi- clusion ented business. method of nance is unconstitutional or her unjustifiably assessing the ordinance whether Therefore, just I the ma- believe expression. burdens by jority’s analysis falls the mark short of rejected majority’s con- Having question it would treat silence on the of how to no clusion that nude is entitled theater, legitimate I find the protection Con- whatsoever under approach unsatisfying in her Justice’s Chief stitution, the Chief Justice advocates test way unwillingness consider content that, view, im- constitutionality my would high to set deciding whatsoever when how pose demanding a Salt too burden South that South Salt Lake must clear the bar City. Lake justify legitimacy of its ordinance. ap- Despite indicating that we have ¶200 upon If there one other matter scrutiny plied heightened forms” of “various majority are which the and the Chief Justice infringements rights, I alleged of article accord, with it is their dissatisfaction appears to Justice Chief nevertheless jurisprudence. federal First Amendment a “one size fits all” standard of advance fact, I troubled it. In have am far less scrutiny to on the heightened restrictions away appeal from this new- come expression of free is borrowed sympathy found for it. The attraction “open article section 11 courts” our approach may federal First Amendment approach jurisprudence. places That exclu- my more to do with unease over the have legislative on the nature of the sive focus colleagues. proposed by my alternatives objective propriety means and the protection offers too little legislative body to reach that selected while the is over- expression, Chief Justice is, therefore, objective. approach It have, therefore, protective. I come to appears expression all to treat forms of there in the federal convinced that is merit pro- high degree same scrutiny” and that we “intermediate model pre- Nor does the tection. Chief Justice’s analytical ap- incorporate it should into analytical model to acknowl- appear ferred regulation proach of free edge separate approach might under the Utah Constitution. “time, place, restric- order for and manner” type Salt tions of the fashioned South crit- particularly Chief Justice is 201 The *49 City. Lake jurispru- “secondary ical federal effects” the current formulation of 198 The absence nuance the Chief dence. Under doctrine, justifi- analytical adequate “secondary effect” model is evident her Justice’s for restrictions on cations forma, secondary pro evidence
derived sexually
of harmful effects of oriented ex-
pression. I share the While Chief Justice’s scrutiny may that intermediate slide
concern all, scrutiny agree
into the realm of no I hopeful observation of the Tenth Appeals quantity that “the
Circuit Court empirical
and nature of the evidence needed city uphold nega- ordinance based on the secondary sexually
tive effects oriented partic- general, or nude
ular, continuing are to evolve.” Heideman v. (10th City,
S. Salt Lake 348 F.3d
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 preordained. The South Salt already
Lake ordinance has endured challenge
and survived First Amendment brought a federal court action dancers
employed by the businesses that are the would, nevertheless,
plaintiffs give here. plaintiffs day
the business in court.
STATE of Plaintiff and
Larry BECKSTEAD, Niel Defendant Respondent.
No. 20041023.
Supreme Court Utah.
Aug. As the notes origin considered to them. of history account of the nation’s under- These powers instruments measure the standing speech, rulers, early of the freedom of but not do measure the state incorporated broadly constitutions rights governed_[A of the state consti- guarantees right. worded beginning of that tution] is of a communi- tradition, speech fully natural law ty, origin was shield- nor the of private rights; it governmental ed from law, restraint. This was incipient not the fountain of nor the .say, however, subject cause, not to government; was state of it is not the to no consequence, personal political constraints whatsoever. The limit of but freedom; was at the point grants where it inflicted it rights people, no er, comments of Mr. Varían found that the power, the of their the creature but understanding of the Designed “articulated had their convenience. instrument that Utah’s Dec- enjoyment of the of the convention in the members protection for their meant to estab- they possessed Rights was never laration rights powers made, positive law but comprehensive it is but was lish the constitution before natural political government, merely various to reaffirm the framework pre-exist- necessarily upon independent constitution.” State based exist 1997). habits, (Utah laws, Gardner, rights, ing condition nothing thought. There is and modes Thus, improper for while it would be it is all derived from primitive in it: body of murky, ill-defined us to invoke orga- presupposes It source. known con- rights to overturn law termed natural law, order, property, person- society, nized legislation, proper it is for us temporary freedom, liberty, and political love of al formu- of natural law in the consider the role intelligence to know enough cultivated Dur- As Justice lation of our constitution. against encroachments guard how Gardner, free, are ham stated “we tyranny. us, duty requires interpret exist- fact our on the Consti- Cooley, A Treatise Thomas M. language to the best of our ing constitutional Upon the Rest Limitations Which tutional meaning conformity ability in the Ameri- the States Legislative Power it and as we language as we understand (Leonard ed., Levy Da 36-37 W. can Union it to be under- the framers meant conceive 1972) (1868). Capo Press honoring, includes Id. at 637. This stood.” philosophical 172 The reads natural law influences appropriate, the where