J & B Entertainment v. City of Jackson, MS ( 1998 )


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  •                      Revised September 9, 1998
    
                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT
    
                                ____________
    
                                No. 96-60865
                                ____________
    
    
              J & B ENTERTAINMENT, INC,
    
    
                                   Plaintiff - Appellant,
    
              versus
    
    
              CITY OF JACKSON, MISSISSIPPI,
    
    
                                   Defendant - Appellee.
    
    
    
              Appeal from the United States District Court
                for the Southern District of Mississippi
    
                              August 21, 1998
    
    Before WIENER, EMILIO M. GARZA, and BENAVIDES, Circuit Judges.
    
    EMILIO M. GARZA, Circuit Judge:
    
         The City of Jackson (“the City” or “Jackson”) enacted an
    
    ordinance banning public nudity, with certain exceptions (“the
    
    Ordinance”).   J & B Entertainment, Inc. (“J&B”),1 the operator of
    
    a club featuring live female nude dancing, brought suit challenging
    
    
    
         1
              Prior to oral argument, we granted J&B’s motion to
    substitute itself in place of the former appellant, JML Club
    Management, Inc., which initially brought this suit. For the sake
    of clarity, we refer to the appellant as J&B throughout the
    opinion, even where JML took the actions in question.
    the constitutionality of the Ordinance and seeking declaratory and
    
    injunctive relief.          J&B filed a motion for summary judgment, which
    
    the district court denied, instead granting summary judgment in
    
    favor of the City.           J&B appealed and, on the skeletal record now
    
    before us, we vacate the district court’s grant of summary judgment
    
    in   favor      of    the   City   on    factual    grounds    and    remand     with
    
    instructions.          We affirm the district court’s denial of J&B’s
    
    summary judgment motion as a matter of law.
    
                                               I
    
           In February 1995, J&B opened Legends Cabaret, a club featuring
    
    live       female    nude   dancing.    Jackson    enacted    the    Ordinance   the
    
    following month. The Ordinance prohibits persons physically present
    
    in public places from knowingly or intentionally: (1) engaging in
    
    sexual intercourse; (2) appearing in a state of nudity; or (3)
    
    fondling the genitals of himself, herself, or another person.2
    
    “Nudity” is defined as “the showing of the human genitals, anus, or
    
    the female nipple.”           Persons “engaged in expressing a matter of
    
    serious literary, artistic, scientific or political value,” are
    
    excepted from the Ordinance’s reach (“the exception”). Supervisors,
    
    managers, owners, and employers of a person who appears in a state
    
    of nudity may be guilty of a misdemeanor. Preambulatory clauses to
    
    the Ordinance provide that the City enacted the Ordinance because
    
    of its interests in protecting order and morality and in combating
    
    
           2
                   The text of the Ordinance is set out in Appendix A.
    
                                              -2-
    secondary effects associated with public nudity. The record before
    
    us, however, does not indicate whether the City considered any
    
    studies on secondary effects prior to enacting the Ordinance.
    
          After J&B brought an action challenging the constitutionality
    
    of the Ordinance, the district court directed both parties to
    
    submit motions for summary judgment. Although J&B submitted a
    
    motion for summary judgment, the City did not.3                   Although no
    
    evidence in the record specified what specific secondary effects
    
    may have motivated the City to enact the Ordinance, the district
    
    court then issued an order denying J&B’s summary judgment motion
    
    and granting summary judgment in favor of the City.4             As applied to
    
    J&B, the court found the Ordinance constitutional under the Supreme
    
    Court’s decision in Barnes v. Glen Theatre, Inc.,               
    501 U.S. 560
    ,
    
    
    111 S. Ct. 2456
    , 
    115 L. Ed. 2d 504
     (1991), and rejected J&B’s as
    
    applied and facial vagueness and overbreadth arguments.                      The
    
    district court also rejected J&B’s challenges to the Ordinance
    
    
    
          3
                The district court’s opinion suggests that, although the City did not
    file a summary judgment motion, it may have filed a response to J&B’s summary
    judgment motion. The district court docket sheet does not list, and the record
    on appeal does not contain, this response.      If it exists, we have not been
    apprised of its contents. Because there is no record of the filing of the City’s
    response, we will assume that the City did not respond to J&B’s summary judgment
    motion.
          4
                 The district court quoted our opinion in Supreme Beef Processors,
    Inc. v. Yaquinto, 
    864 F.2d 388
    , 393 (5th Cir. 1989), for the proposition that
    “when ‘one party moves for summary judgment the district court, in an appropriate
    case, may grant summary judgment against the movant, even though the opposite
    party has not actually filed a motion for summary judgment.’” (quoting Landry v.
    G.B.A., 
    762 F.2d 462
    , 464 (5th Cir. 1985)). J&B has not challenged this
    conclusion, and we need not comment upon it further.      See Exxon Corp. v. St.
    Paul Fire & Marine Ins. Co., 
    129 F.3d 781
    , 786 (5th Cir. 1997).
    
                                          -3-
    under state law.   J&B’s timely appeal followed.
    
                                     II
    
         We review the grant of summary judgment de novo, taking the
    
    facts in the light most favorable to the nonmovant below.    See New
    
    York Life Ins. Co. v. Travelers Ins. Co., 
    92 F.3d 336
    , 338 (5th
    
    Cir. 1996).   District court determinations of state law are also
    
    reviewed de novo. See Salve Regina College v. Russell, 
    499 U.S. 225
    , 239, 
    111 S. Ct. 1217
    , 1221, 
    113 L. Ed. 2d 190
     (1991).   Summary
    
    judgment is appropriate where the record discloses “that there is
    
    no genuine issue of material fact and that the moving party is
    
    entitled to a judgment as a matter of law.”   FED. R. CIV. P. 56(c).
    
                                    III
    
         We turn our attention first to the challenges that J&B brings
    
    against the Ordinance on overbreadth and vagueness grounds, both as
    
    applied and facially. “The overbreadth and vagueness doctrines are
    
    related yet distinct.”    American Booksellers v. Webb, 
    919 F.2d 1493
    , 1505 (11th Cir. 1990). The vagueness doctrine protects
    
    individuals from laws lacking sufficient clarity of purpose or
    
    precision in drafting.   See Erznoznik v. City of Jacksonville, 
    422 U.S. 205
    , 217-18, 
    95 S. Ct. 2268
    , 2276-77, 
    45 L. Ed. 2d 125
     (1975).
    
    “Overbroad legislation need not be vague, indeed it may be too
    
    clear; its constitutional infirmity is that it sweeps protected
    
    activity within its proscription.”    M.S. News Co. v. Casado, 
    721 F.2d 1281
    , 1287 (10th Cir. 1983).
    
    
                                    -4-
                                    A
    
         J&B posits that the Ordinance is facially overbroad because it
    
    infringes upon protected First Amendment conduct.   In the district
    
    court, J&B conceded that the City removed much, though not all, of
    
    the possible overbreadth through the exception’s exemption of
    
    persons “engaged in expressing a matter of serious literary,
    
    artistic, scientific or political value.”
    
         Persons to whom a statute may be constitutionally applied
    
    normally lack standing to argue that a statute is unconstitutional
    
    if applied to persons or situations not before the court. See
    
    Broadrick v. Oklahoma, 
    413 U.S. 601
    , 610, 
    93 S. Ct. 2908
    , 2915, 
    37 L. Ed. 2d 830
     (1973). Standing requirements in the First Amendment
    
    context, however, are relaxed “because of a judicial prediction or
    
    assumption that the statute’s very existence may cause others not
    
    before the court to refrain from constitutionally protected speech
    
    or expression.”   Id. at 612, 93 S. Ct. at 2916; see also Board of
    
    Airport Comm’rs v. Jews for Jesus, Inc., 
    482 U.S. 569
    , 574, 107 S.
    
    Ct. 2568, 2572, 
    96 L. Ed. 2d 500
     (1987).      Standing to bring a
    
    facial overbreadth claim, however, is extremely limited:
    
         [T]he plain import of our cases is, at the very least,
         that facial overbreadth adjudication is an exception to
         our traditional rules of practice and that its function,
         a limited one at the outset, attenuates as the otherwise
         unprotected behavior that it forbids the State to
         sanction moves from “pure speech” toward conduct and that
         conduct))even if expressive))falls within the scope of
         otherwise valid criminal laws that reflect legitimate
         state interests in maintaining comprehensive controls
         over harmful, constitutionally unprotected conduct . . .
    
                                   -5-
         where conduct and not merely speech is involved, we
         believe that the overbreadth of a statute must not only
         be real, but substantial as well, judged in relation to
         the statute’s plainly legitimate sweep.
    
    Broadrick, 413 U.S. at 615, 93 S. Ct. at 2917-18.
    
         After carefully considering the arguments that J&B advances,
    
    we find that the Ordinance’s alleged overbreadth, when compared to
    
    its plainly legitimate sweep, is neither real nor substantial. J&B
    
    hypothesizes    that   the   Ordinance        may   be   overbroad   because   it
    
    infringes upon many forms of expression protected by the First
    
    Amendment:    “the   New   Stage   Theatre      in    Jackson   perform[ing]    a
    
    production of Hair,” “nude infant babies in public,” “a woman
    
    breast feed[ing] in the park,” “a nude political debate in the
    
    streets of Jackson,” and “John Grisham read[ing] one of his books
    
    in the nude.”    Nude infants and women breast feeding in a park are
    
    not protected by the First Amendment because they are not engaged
    
    in expressing any idea.5      Cf. Barnes, 501 U.S. at 571, 111 S. Ct.
    
    at 2463 (explaining that the First Amendment does not protect nude
    
    sunbathers); City of Dallas v. Stanglin, 
    490 U.S. 19
    , 25, 109 S.
    
    Ct. 1591, 1595, 
    104 L. Ed. 2d 18
     (1989) (“It is possible to find
    
    some kernel     of   expression    in    almost      every   activity   a   person
    
    undertakes))for example, walking down the street or meeting one’s
    
    friends at a shopping mall))but such a kernel is not sufficient to
    
    bring the activity within the protection of the First Amendment.”);
    
    
          5
                We express no opinion as to whether nude infants or public breast
    feeding may be protected by other constitutional or statutory provisions.
    
                                            -6-
    Hang On, Inc. v. City of Arlington, 
    65 F.3d 1248
    , 1253 (5th Cir.
    
    1995)(rejecting overbreadth argument because topless bar patrons do
    
    not have a protected First Amendment right to touch nude dancers).
    
    If John Grisham reads one of his novels in the nude or the New
    
    Stage Theatre stages a production of “Hair,” courts can evaluate
    
    whether these activities fall within the scope of the exception.
    
    See Broadrick, 413 U.S. at 615-616, 93 S. Ct. at 2918 (“[W]hatever
    
    overbreadth may exist should be cured through case-by-case analysis
    
    of the fact situations to which its sanctions, assertedly, may not
    
    be applied.”); Miller v. California, 
    413 U.S. 15
    , 25, 
    93 S. Ct. 2607
    , 2615, 
    37 L. Ed. 2d 419
     (1973) (“[T]he First Amendment values
    
    applicable to the States through the Fourteenth Amendment are
    
    adequately protected by the ultimate power of appellate courts to
    
    conduct    an   independent   review   of   constitutional    claims        when
    
    necessary.”). Therefore, although hypothetical examples in which
    
    the Ordinance may be overbroad can be imagined, these examples, in
    
    comparison to its legitimate sweep, are not substantial. See
    
    Broadrick, 413 U.S. at 615, 93 S. Ct. at 2918.
    
         Other      considerations   strengthen   our   conclusion       that    the
    
    Ordinance is not substantially overbroad.           The Supreme Court has
    
    rejected    a   facial   overbreadth   challenge    to   an   Ohio    statute
    
    criminalizing the possession of child pornography containing an
    
    exception similar to that found in the Ordinance because the
    
    exception in that statute removed any substantial overbreadth. See
    
    
                                        -7-
    Osborne v. Ohio, 
    495 U.S. 103
    , 112 n.9, 
    110 S. Ct. 1691
    , 1698 n.9,
    
    109   L.   Ed.   2d    98    (1990).          Moreover,     “[a]pplication          of   the
    
    overbreadth doctrine . . . is, manifestly, strong medicine. It has
    
    been employed only by the Court sparingly and only as a last
    
    resort.”    Broadrick, 413 U.S. at 613, 93 S. Ct. at 2916.                          Because
    
    the   Ordinance       is    not    substantially         overbroad,     any       remaining
    
    ambiguities can be clarified in future cases. See Young v. American
    
    Mini Theatres, Inc., 
    427 U.S. 50
    , 61, 
    96 S. Ct. 2440
    , 2448, 49 L.
    
    Ed. 2d 310 (1976); Broadrick, 413 U. S. at 613, 93 S. Ct. at 2916
    
    (“Facial    overbreadth           has   not       been   invoked    when      a    limiting
    
    construction     has       been    or   could      be    placed    on   the   challenged
    
    statute.”). Accordingly, we reject J&B’s overbreadth challenge.
    
                                                  B
    
          J&B next contends that the Ordinance is void for vagueness,
    
    both as applied and facially. “[A]n enactment is void for vagueness
    
    if its prohibitions are not clearly defined.”6                     Grayned v. City of
    
          6
                The Supreme Court has set forth several reasons for the prohibition
    of vagueness:
    
          [B]ecause we assume that man is free to steer between lawful and
          unlawful conduct, we insist that laws give the person of ordinary
          intelligence a reasonable opportunity to know what is prohibited, so
          that he may act accordingly. Vague laws may trap the innocent by
          not providing fair warning. Second, if arbitrary and discriminatory
          enforcement is to be prevented, laws must provide explicit standards
          for those who apply them. A vague law impermissibly delegates basic
          policy matters to policemen, judges, and juries for resolution on an
          ad hoc and subjective basis, with the attendant dangers of arbitrary
          and discriminatory application. Third, but related, where a vague
          statute “abut[s] upon sensitive areas of basic First Amendment
          freedoms,” it “operates to inhibit the exercise of [those]
          freedoms.” Uncertain meanings inevitably lead citizens to “‘steer
          far wider of the unlawful zone’ . . . than if the boundaries of the
          forbidden areas were clearly marked.”
    
                                               -8-
    Rockford, 
    408 U.S. 104
    , 109, 
    92 S. Ct. 2294
    , 2298, 
    33 L. Ed. 2d 222
    
    (1972). In determining whether a statute is vague, we view the law
    
    from the standpoint of a person of ordinary intelligence.               See id.
    
                                           1
    
          As applied to J&B, we conclude that the Ordinance and its
    
    exception are not vague.            J&B and its employees can clearly
    
    understand that totally nude dancing violates the Ordinance.                 J&B
    
    has not argued that the terms “nipple,” “anus,” or “genitals” are
    
    vague or that it and its employees cannot understand their meaning.
    
    See Dodger’s Bar & Grill v. Johnson County Bd. of County Comm’rs,
    
    
    32 F.3d 1436
    , 1444-45 (10th Cir. 1994) (rejecting argument that
    
    ordinance prohibiting fondling of genitals, acts simulating sexual
    
    intercourse, or the displaying of human genitals, buttocks, anus,
    
    or part of the female breast was vague); Kev, Inc. v. Kitsap
    
    County, 
    793 F.2d 1053
    , 1057 (9th Cir. 1986) (rejecting void-for-
    
    vagueness    argument    for   statute      that   prohibited   caressing     or
    
    fondling of dancers by patrons of nude dancing bar).              J&B conceded
    
    below that the entertainment performed by its dancers lacks any
    
    serious literary, artistic, political, scientific or social value.
    
    Cf. Walker v. City of Kansas City, 
    911 F.2d 80
    , 87 (8th Cir. 1990)
    
    (rejecting contention that nude dancers have any serious literary,
    
    artistic, political, or scientific value).            Thus, we reject J&B’s
    
    as applied vagueness challenge. See Broadrick, 413 U.S. at 608, 93
    
    
    Grayned, 408 U.S. at 108-09, 92 S. Ct. at 2298-2299 (internal citations omitted).
    
                                          -9-
    S. Ct. at 2914 (“[E]ven if the outermost boundaries of [the
    
    statute]   may   be    imprecise,    any    such   uncertainty   has    little
    
    relevance here, where appellants’ conduct falls squarely within the
    
    ‘hard core’ of the statute’s proscriptions and appellants concede
    
    as much.”).
    
                                           2
    
         Because the Ordinance as applied to J&B is not vague, J&B may
    
    proceed on its facial vagueness challenge only if the Ordinance’s
    
    effect on legitimate expression is “real and substantial and the
    
    language of the ordinance is not readily subject to a narrowing
    
    construction     by   the   state   courts.”       Basiardanes   v.    City   of
    
    Galveston, 
    682 F.2d 1203
    , 1210 (5th Cir. 1982) (emphasis added).
    
    “Real and substantial” for a facial vagueness test has the same
    
    meaning as for a facial overbreadth challenge. See Young, 427 U.S.
    
    at 60, 96 S. Ct. at 2447.
    
         J&B argues that a person of ordinary intelligence could not
    
    understand the words of the exception))“serious literary, artistic,
    
    scientific or political value”))or whether her conduct fell within
    
    the terms of the exception.         Jackson, however, did not pull these
    
    words from thin air.        They are drawn from the third prong of the
    
    obscenity test enunciated in Miller, 413 U.S. at 24, 93 S. Ct. at
    
    2615, appear as one prong of the Mississippi statute defining
    
    obscenity, see MISS. CODE ANN. § 97-29-103(1)(b), and are the subject
    
    of a plethora of opinions handed down by state and federal courts
    
    
                                         -10-
    throughout this nation in the quarter century since Miller was
    
    decided. See Barnes, 501 U.S. at 585 n.2, 111 S. Ct. at 2470 n.2
    
    (Souter, J., concurring); Triplett Grille, Inc. v. City of Akron,
    
    
    40 F.3d 129
    , 136 (6th Cir. 1994).        Though J&B may argue that these
    
    words are inherently vague, the Supreme Court itself has not done
    
    better, and “[c]ondemned to the use of words, we can never expect
    
    mathematical certainty from our language.”              Grayned, 408 U.S. at
    
    110, 92 S. Ct. at 2300.             Moreover, the Ordinance contains a
    
    knowledge    requirement,      further      limiting    the     potential    for
    
    individuals to be ensnared inadvertently in its grasp. See Village
    
    of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
    , 499, 
    102 S. Ct. 1186
    , 1193, 
    71 L. Ed. 2d 362
     (1983) (“[A]
    
    scienter requirement may mitigate a law’s vagueness, especially
    
    with respect to the adequacy of notice to the complainant that his
    
    conduct is proscribed.”).       Thus, the terms of the exception do not
    
    contain real and substantial vagueness.
    
         J&B also argues that the Ordinance is facially vague because
    
    it does not specify who should determine whether an activity has
    
    “serious literary, artistic, scientific or political value” or how
    
    they should make that determination.             We reject this argument
    
    because, as noted above, these words appear as one prong of the
    
    Miller obscenity test and MISS. CODE ANN. § 97-29-103(1)(b). The
    
    experience     gained   by     private      persons,    attorneys,        police,
    
    prosecutors,    and   courts   in    interpreting      Miller   and   §   97-29-
    
    
                                         -11-
    103(1)(b) may aid them in their interpretation of the Ordinance and
    
    in deciding who should make the necessary determinations.                Further
    
    guidance, to the extent any is needed, can be supplied by appellate
    
    courts.    See Miller, 413 U.S. at 25, 93 S. Ct. at 2615 (“[T]he
    
    First   Amendment   values    applicable    to    the   States    through      the
    
    Fourteenth Amendment are adequately protected by the ultimate power
    
    of   appellate   courts      to   conduct    an   independent         review    of
    
    constitutional claims when necessary.”).
    
         J&B   additionally   argues     that   the   Ordinance      is    void    for
    
    vagueness because it “impermissibly delegates basic policy matters
    
    to policemen, judges, and juries.”          See Grayned, 408 U.S. at 108-
    
    09, 92 S. Ct. at 2299;       Kolender v. Lawson, 
    461 U.S. 352
    , 358-60,
    
    
    103 S. Ct. 1855
    , 1858-59, 
    75 L. Ed. 2d 903
     (1983).               We again note
    
    that J&B has not argued that the terms “nipple,” “anus,” or
    
    “genitals” are vague or that a person of reasonable intelligence
    
    cannot understand the meaning of these terms.            See Dodger’s Bar &
    
    Grill, 32 F.3d at 1444-45; Kev, 793 F.2d at 1057.             In the absence
    
    of any such argument, we find that the Ordinance sets forth a core
    
    of prohibited conduct with sufficient definiteness to guide those
    
    who must interpret it. See Kolender, 461 U.S. at 358, 103 S. Ct. at
    
    1858 (finding a law to be void for vagueness because it specified
    
    no core of prohibited conduct and permitted “‘a standardless sweep
    
    allow[ing] policemen, prosecutors, and juries to pursue their
    
    personal predilections’”) (quoting Smith v. Goguen, 
    415 U.S. 566
    ,
    
    
                                        -12-
    574, 
    94 S. Ct. 1242
    , 1247-48, 
    39 L. Ed. 2d 605
     (1974)).
    
           Finally, J&B argues that the Ordinance is facially vague
    
    because the exception contains only one of the Miller obscenity
    
    test’s three prongs.       This argument is reminiscent of the Supreme
    
    Court’s reasoning in Reno v. ACLU, __ U.S. __, 
    117 S. Ct. 2329
    ,
    
    2345, 
    138 L. Ed. 2d 874
     (1997), in which the Court found certain
    
    terms in the Communications Decency Act of 1996 to be vague because
    
    the Act defined them by reference only to one of Miller’s three
    
    prongs.    The offending terms in the Act were “indecent” and
    
    material that “in context, depicts or describes, in terms patently
    
    offensive as measured by contemporary community standards, sexual
    
    or excretory activities or organs.”                 Id. at __, 117 S. Ct. at 2324.
    
    In rejecting the government’s argument that these terms were no
    
    more   vague   than    Miller’s       definition       of   obscenity,      the   Court
    
    described the “lack[ing] of serious literary, artistic, political,
    
    or   scientific    value”       prong    as     “particularly        important”     and
    
    “critically    limit[ing]       the     uncertain       scope   of    the   obscenity
    
    definition.”      Id. at __, 117 S. Ct. at 2345. In contrast to the
    
    Communications        Decency     Act,        the     Ordinance      includes      this
    
    “particularly important” prong as its exception.                  Moreover, as the
    
    district court correctly noted, nudity and obscenity are not
    
    synonymous.    See Schad v. Borough of Mt. Ephraim, 
    452 U.S. 61
    , 66,
    
    
    101 S. Ct. 2176
    , 2181, 
    68 L. Ed. 2d 671
     (1981); Erznoznik, 422 U.S.
    
    at 213, 95 S. Ct. at 2275. If the City were required to include all
    
    
                                             -13-
    three prongs of Miller, it would be regulating obscene nudity, and
    
    its ability to regulate nonobscene nudity would be eviscerated.
    
    Because Barnes plainly gives governments the power to regulate
    
    nonobscene nudity, as we discuss below, we reject J&B’s argument.
    
         In conclusion, we reiterate that because the Ordinance is not
    
    vague as applied to J&B, we have reviewed J&B’s facial vagueness
    
    challenge only to determine whether the Ordinance contains real and
    
    substantial vagueness.   We express no opinion as to whether less
    
    than substantial vagueness exists in the Ordinance; that is a task
    
    for future courts. See Young, 427 U.S. at 61, 96 S. Ct. at 2448;
    
    Basiardanes, 682 F.2d at 1210.
    
                                      IV
    
                                      A
    
         We now turn to the question of whether the Ordinance is
    
    consistent with the First Amendment to the U.S. Constitution.
    
    While it is now beyond question that nonobscene nude dancing is
    
    protected by the First Amendment, even if “only marginally so,”
    
    see, e.g., Barnes, 501 U.S. at 565-66, 111 S. Ct. at 2460 (“Nude
    
    dancing of the kind sought to be performed here is expressive
    
    conduct within the outer perimeters of the First Amendment, though
    
    we view it as only marginally so.”); Schad, 452 U.S. at 66, 101 S.
    
    Ct. at 2181, it is also clear that the government can regulate such
    
    activity.   “[E]ven though we recognize that the First Amendment
    
    will not tolerate the total suppression of erotic materials that
    
    
                                     -14-
    have some arguably artistic value, it is manifest that society’s
    
    interest in protecting this type of expression is of a wholly
    
    different, and lesser, magnitude than the interest in untrammeled
    
    political debate.”    Young, 427 U.S. at 70, 96 S. Ct. at 2452.
    
         In Barnes, a three-judge plurality of the Supreme Court held
    
    that an   enactment   banning   public   nudity,   as   applied   to   nude
    
    dancing, can be upheld as a content-neutral time, place, and manner
    
    regulation if it comports with the intermediate scrutiny test
    
    enunciated in United States v. O’Brien, 
    391 U.S. 367
    , 376-77, 88 S.
    
    Ct. 1673, 1678-79, 
    20 L. Ed. 2d 672
     (1968). See Barnes, 501 U.S. at
    
    567, 111 S. Ct. at 2461.   In O’Brien, the Court set out the four-
    
    part test as follows:
    
         [A] government regulation is sufficiently justified [1]
         if it is within the constitutional power of the
         government; [2] if it furthers an important or
         substantial   governmental    interest;    [3]   if   the
         governmental interest is unrelated to the suppression of
         free expression; and [4] if the incidental restriction on
         alleged First Amendment freedoms is no greater than is
         essential to the furtherance of that interest.
    
    O’Brien, 391 U.S. at 376-77, 88 S. Ct. at 1679.         Using this test,
    
    the three-judge plurality upheld Indiana’s prohibition on public
    
    nudity, as applied to nude dancing.      See Barnes, 501 U.S. at 570,
    
    111 S. Ct. at 2462-63.   In a separate concurrence, Justice Souter
    
    agreed with the plurality that the O’Brien test should be used to
    
    determine whether a statute banning public nudity is a valid time,
    
    place, and manner regulation, but differed with regard to O’Brien’s
    
    
    
                                     -15-
    second prong))namely, the societal interest necessary to permit
    
    governmental regulation.           See Barnes, 501 U.S. at 582, 111 S. Ct.
    
    at   2468-69    (Souter,     J.,    concurring);   see   also   International
    
    Eateries of Am., Inc. v. Broward County, 
    941 F.2d 1157
    , 1160 (11th
    
    Cir. 1991) (discussing differences between the plurality opinion
    
    and Justice Souter’s concurrence).             While the plurality found
    
    morality   to   be   a   sufficient     governmental     interest   to   permit
    
    regulation, see Barnes, 501 U.S. at 568-69, 111 S. Ct. at 2461-62,
    
    Justice    Souter    found    that     combating   secondary    effects    was
    
    sufficient, but that morality was not. Id. at 582, 111 S. Ct. at
    
    2468-69 (Souter, J., concurring). Justice Scalia concurred in the
    
    judgment, but adopted a different analysis, explaining that “the
    
    challenged regulation must be upheld, not because it survives some
    
    lower level of First Amendment scrutiny, but because, as a general
    
    law regulating conduct and not specifically directed at expression,
    
    it is not subject to First-Amendment scrutiny at all.” Id. at 572,
    
    111 S. Ct. at 2463 (Scalia, J., concurring).
    
          Because no single opinion in Barnes commanded a majority, as
    
    an initial matter, we must decide which opinion sets forth the
    
    relevant standard under the First Amendment.                J&B argues that
    
    precisely because no opinion commanded a majority, we cannot rely
    
    on Barnes, and must instead evaluate the Ordinance under the test
    
    set out in City of Renton v. Playtime Theatres, Inc., 
    475 U.S. 41
    ,
    
    
    106 S. Ct. 929
    , 
    89 L. Ed. 2d 29
     (1986).            “When a fragmented Court
    
                                           -16-
    decides a case and no single rationale explaining the result enjoys
    
    the assent of five Justices, ‘the holding of the Court may be
    
    viewed as that position taken by those Members who concurred in the
    
    judgments on the narrowest grounds.’” Marks v. United States, 
    430 U.S. 188
    , 193, 
    97 S. Ct. 990
    , 993, 
    51 L. Ed. 2d 260
     (1977) (quoting
    
    Gregg v. Georgia, 
    428 U.S. 153
    , 169 n.15, 
    96 S. Ct. 2909
    , 2923
    
    n.15, 
    49 L. Ed. 2d 859
     (1976)). Courts have generally adopted
    
    Justice Souter’s concurrence as the narrowest opinion in Barnes.
    
    See, e.g., Triplett Grille, 40 F.3d at 134; International Eateries,
    
    941 F.2d at 1160-61 (adopting Justice Souter’s concurrence as the
    
    narrowest opinion because it was the closest to the secondary
    
    effects analysis of Renton). “While ‘there is some awkwardness in
    
    attributing precedential value to an opinion of one Supreme Court
    
    justice to which no other justice adhered, it is the usual practice
    
    when that is the determinative opinion.’” Triplett Grille, 40 F.3d
    
    at 134 (quoting Blum v. Witco Chem. Corp., 
    888 F.2d 975
    , 981 (3rd
    
    Cir. 1989)).   We agree with the Sixth and Eleventh Circuits that
    
    Justice Souter’s concurrence is the narrowest opinion in Barnes,
    
    and   accordingly   will   follow   Justice   Souter’s   concurrence   in
    
    deciding this appeal.
    
          Before we turn to the merits of J&B’s challenge to the
    
    Ordinance as applied to nude dancing, we note that, because we
    
    review the Ordinance under an intermediate scrutiny standard of
    
    review, the government bears the burden of justifying (i.e., both
    
    
                                        -17-
    the burden of production and persuasion) the challenged statute.
    
    See Renton, 475 U.S. at 48, 106 S. Ct. at 929; see also Turner
    
    Broadcasting Sys., Inc. v. FCC, 
    512 U.S. 622
    , 664-65, 
    114 S. Ct. 2445
    , 2470, 
    129 L. Ed. 2d 497
     (1994) (reaffirming that under the
    
    intermediate scrutiny standard of review, the government bears the
    
    burden of justifying the challenged enactment); Phillips v. Borough
    
    of Keyport, 
    107 F.3d 164
    , 173 (3rd Cir. 1997) (en banc).
    
                                        B
    
                                        1
    
         The first prong of O’Brien requires that the government have
    
    the constitutional power to enact the regulation in question.         J&B
    
    contended below that the Ordinance failed this prong because the
    
    City allegedly lacked the power to enact the Ordinance under state
    
    law. The district court found that the City had the constitutional
    
    power to enact this Ordinance under its police powers, and that, in
    
    any event, state law authorized the City to enact the Ordinance.
    
    Although on appeal J&B renews the argument it made below, we find
    
    that the district court correctly concluded that Jackson has the
    
    constitutional power to enact the Ordinance. See Barnes, 501 U.S.
    
    at 583, 111 S. Ct. at 2469 (“[I]t is clear that the prevention of
    
    such evils falls within the constitutional power of the State,
    
    which satisfies the first O’Brien criterion.”).
    
                                        2
    
         Our   attention   is   next   directed   toward   O’Brien’s   second
    
    
                                       -18-
    criterion))namely, whether the Ordinance “furthers an important or
    
    substantial governmental interest.”          O’Brien, 391 U.S. at 376-77,
    
    88 S. Ct. at 1678-79.      The district court concluded that under
    
    Justice Souter’s concurrence in Barnes, secondary effects linked to
    
    adult entertainment are a sufficient governmental interest to
    
    justify a ban on public nudity, as applied to nude dancing.
    
    Relying on dicta from Lakeland Lounge of Jackson, Inc. v. City of
    
    Jackson, 
    973 F.2d 1255
    , 1258 n.1 (5th Cir. 1992), and Justice
    
    Souter’s concurrence in Barnes, the court also determined that a
    
    government need not provide any evidence that a desire to combat
    
    secondary effects actually motivated it to enact an ordinance or
    
    that the challenged ordinance may further its interests.                        J&B
    
    disputes these conclusions, arguing that a government must still
    
    consider evidence    of   secondary       effects,   must    do   so    prior    to
    
    enacting an ordinance, and must determine how the ordinance may
    
    further its interests.    As explained below, we agree with J&B that
    
    the government must produce evidence that the challenged ordinance
    
    may advance its interest in combating adverse secondary effects
    
    attendant to nude dancing. In doing so, however, the government is
    
    not limited to using evidence developed prior to enactment.
    
                                          a
    
         A local government’s interest in preserving the quality and
    
    character of neighborhoods and urban centers can, if properly set
    
    forth,   support   restrictions   on      both   public     nudity     and   adult
    
    
                                      -19-
    entertainment.   See Renton, 475 U.S. at 50, 106 S. Ct. at 930
    
    (stating that the government’s “‘interest in attempting to preserve
    
    the quality of urban life is one that must be accorded high
    
    respect’”) (quoting Young, 427 U.S. at 71, 96 S. Ct. at 2453).          In
    
    setting forth this interest, a local government may place great
    
    weight upon the experiences of, and studies conducted by, other
    
    local governments,   as   well   as   opinions   of   courts   from   other
    
    jurisdictions.   See Renton, 475 U.S. at 51, 106 S. Ct. at 931.
    
    Crucially, in Renton, the Court explained that
    
         [t]he First Amendment does not require a city, before
         enacting such an ordinance, to conduct new studies or
         produce evidence independent of that already generated by
         other cities, so long as whatever evidence the city
         relies upon is reasonably believed to be relevant to the
         problem that the city addresses.
    
    Id. at 51-52; 106 S. Ct. at 931.      Thus, Renton teaches us that the
    
    government must produce some evidence of adverse secondary effects
    
    produced by public nudity, as applied to nude dancing, or adult
    
    entertainment in order to justify a challenged enactment using the
    
    secondary effects doctrine. Id. Justice Souter’s concurrence in
    
    Barnes establishes that, in justifying a ban on public nudity, as
    
    applied to nude dancing, the government can meet this burden either
    
    by developing evidence of secondary effects prior to enactment or
    
    by adducing such evidence at trial. See Barnes, 501 U.S. at 582,
    
    111 S. Ct. at 2469 (Souter, J., concurring) (“Our appropriate focus
    
    is not an empirical enquiry into the actual intent of the enacting
    
    
    
                                     -20-
    legislature,      but    rather     the    existence     or    not    of    a   current
    
    governmental interest in the service of which the challenged
    
    application of the statute may be constitutional.”); Phillips, 107
    
    F.3d at 178; International Eateries, 941 F.2d at 1161 (“[I]n order
    
    to uphold a statute regulating nude dancing, it is still necessary
    
    after Barnes that the statute meet the secondary effects test of
    
    Renton.”). Renton also instructs us that a government must present
    
    sufficient evidence to demonstrate “a link between the regulation
    
    and   the   asserted     governmental        interest,”       under   a    “reasonable
    
    belief” standard in order to satisfy this prong of O’Brien. See
    
    Renton, 475 U.S. at 51-52, 106 S. Ct. at 931; see also SDJ, Inc. v.
    
    City of Houston, 
    837 F.2d 1268
    , 1274 (5th Cir. 1988).
    
          Thus, the district court in this case misinterpreted Justice
    
    Souter’s concurrence in Barnes because, although his concurrence
    
    allows a local government to justify a challenged ordinance based
    
    on evidence developed either prior to enactment or adduced at
    
    trial, it does not eliminate the government’s burden of introducing
    
    sufficient    evidence        to   justify   the   challenged         ordinance.    See
    
    Barnes,     501   U.S.   at    582,   111    S.    Ct.   at    2469    (Souter,     J.,
    
    concurring); International Eateries, 941 F.2d at 1161. Our opinion
    
    in Lakeland Lounge, 973 F.2d at 1258-59, is not to the contrary.7
    
    
          7
                In addition to Lakeland Lounge, the district court relied on various
    state and district court opinions from around the country and the Sixth Circuit’s
    opinion in Triplett Grille, 40 F.3d at 135. Although dicta from Triplett Grille
    suggests that Barnes may have obviated the government’s need to provide evidence
    that secondary effects associated with adult entertainment motivated it to ban
    
                                              -21-
    We upheld the challenged ordinance there because the government
    
    adduced sufficient evidence at trial to establish that prior to
    
    enacting the ordinance, it had reviewed sufficient evidence to
    
    develop a reasonable belief that enacting the zoning ordinance
    
    would    ameliorate         secondary          effects     associated          with   adult
    
    entertainment.      Id.     at    1258-59.        As     such,    Lakeland      Lounge    is
    
    consonant with our case law upholding ordinances regulating adult
    
    entertainment       where    the       government      has      introduced      sufficient
    
    evidence to justify the ordinance on the basis of preenactment
    
    legislative findings or evidence adduced at trial. See Hang On, 65
    
    F.3d at 1256; MD II Entertainment, Inc. v. City of Dallas, 
    28 F.3d 492
    , 496 (5th Cir. 1994); SDJ, 837 F.2d at 1274 (“[U]nlike our
    
    review under a standard of rationality, we will not hypothesize
    
    such an objective or accept a naked assertion.                      Rather, we intrude
    
    into the regulatory decision process to the extent that we insist
    
    upon objective evidence of purpose))a study or findings. Insisting
    
    upon findings reduces the risk that a purported effort to regulate
    
    effect is a mask for regulation of content.”).                          Accordingly, the
    
    district    court    erred        in   concluding        that    when    the    government
    
    attempts    to   justify      a    ban    on    public     nudity       as   fulfilling   a
    
    
    public nudity, as applied to nude dancing, the Sixth Circuit proceeded to examine
    the evidence in the record to determine whether the government had properly
    justified the ordinance, see id. at 135, as we do here.        Indeed, the Sixth
    Circuit in Triplett Grille struck down the ordinance in question there because
    it concluded that the government had failed to introduce sufficient evidence to
    justify a complete ban on all nudity, including where the nudity occurred as part
    of serious artistic, literary, political or scientific expression. See id. at
    136. Thus, Triplett Grille does not support the district court’s conclusion.
    
                                               -22-
    substantial government interest based on the secondary effects
    
    doctrine, as applied to nude dancing, it does not need to introduce
    
    any evidence.8    “To insist on less is to reduce the First Amendment
    
    to a charade.” Phillips, 107 F.3d at 178.
    
                                           b
    
          Although it erroneously concluded that a government does not
    
    need to introduce evidence to justify an ordinance regulating
    
    public nudity challenged on First Amendment grounds, the district
    
    court also found sufficient evidence in the record to determine
    
    that the City enacted the Ordinance based on secondary effects
    
    associated with public nudity, as applied to nude dancing.                   The
    
    district court based its conclusion upon two pieces of evidence.
    
    First, the court noted that a preambulatory clause to the Ordinance
    
    provides that “the City of Jackson has a legitimate interest in
    
    
          8
                J&B also argues that because the City first chose to adopt a zoning
    ordinance, it could not adopt other measures designed to resolve related problems
    without first finding that the zoning ordinance was inadequate to ameliorate the
    secondary effects previously identified. Acceptance of J&B’s argument would
    require Jackson to produce its own studies in order to support this Ordinance or
    find a study produced by another government in an almost identical position.
    Barnes forecloses this argument:
    
          In light of Renton’s recognition that legislation seeking to combat
          the secondary effects of adult entertainment need not await
          localized proof of those effects, the State of Indiana could
          reasonably conclude that forbidding nude entertainment . . .
          furthers its interest in preventing prostitution, sexual assault,
          and associated crimes.     Given our recognition that “society’s
          interest in protecting this type of expression is of a wholly
          different, and lesser, magnitude than the interest in untrammeled
          political debate,” . . . I do not believe that a State is required
          affirmatively to undertake to litigate this issue repeatedly in
          every case.
    
    501 U.S. at 584-85, 111 S. Ct. at 2470 (Souter, J. concurring) (internal
    citations omitted).
    
                                          -23-
    combating secondary effects associated with public places where
    
    persons who are physically present appear nude amongst strangers.”
    
    Second,     the   court   noted    that    the   City    enacted   an    adult
    
    entertainment zoning ordinance in 1991 (“1991 zoning ordinance”),
    
    and that the composition of the City Council that enacted the 1991
    
    zoning ordinance was the same as the City Council that enacted the
    
    Ordinance in question here.
    
         In SDJ, we explained how a government can justify a challenged
    
    ordinance    as   fulfilling   a   substantial     interest   based     on   the
    
    secondary effects doctrine:
    
         [A] city may establish its “substantial interest” in the
         regulation by compiling a record with evidence that it
         may be “reasonably believed to be relevant to the problem
         that the city addresses.” We do not ask whether the
         regulator subjectively believed or was motivated by other
         concerns, but whether an objective lawmaker could have so
         concluded, supported by an actual basis for the
         conclusion. Legitimate purpose may be shown by reasonable
         inferences from specific testimony of individuals, local
         studies, or the experiences of other cities.
    
    SDJ, 837 F.2d at 1274 (internal citations omitted). As noted above,
    
    the City must demonstrate “a link between the regulation and the
    
    asserted    governmental    interest,”     under   a    “reasonable     belief”
    
    standard.     See Renton, 475 U.S. at 51-52, 106 S. Ct. at 931.
    
    Because the First Amendment protects nonobscene nude dancing, see
    
    Barnes, 501 U.S. at 565-66, 111 S. Ct. at 2463, we again note that
    
    on summary judgment and at trial, the government bears the burden
    
    of justifying the challenged enactment by introducing sufficient
    
    evidence.     Renton, 475 U.S. at 48, 106 S. Ct. at 929; see also
    
                                        -24-
    Turner Broadcasting, 512 U.S. at 664-65, 114 S. Ct. at 2470;
    
    Phillips, 107 F.3d at 173.
    
         Our task of reviewing the district court’s finding that
    
    sufficient evidence exists in the record to determine that the City
    
    has met its burden under this prong of O’Brien is complicated by
    
    its conclusion that a government does not need to provide any
    
    evidence to justify a challenged enactment.    As a result of this
    
    conclusion, the court determined that the City had satisfied this
    
    prong based on an extremely sparse record.    Excluding procedural
    
    motions, the record consists only of several unamended and amended
    
    complaints and answers by J&B and the City, respectively, J&B’s
    
    summary judgment motion, and the order granting summary judgment.
    
    The record contains neither any deposition testimony nor any
    
    affidavit from any City council member or city employee that might
    
    clarify the City’s motives for enacting the Ordinance.    The City
    
    also did not file a summary judgment motion with attached exhibits
    
    that might illuminate its motives.9      In fact, other than its
    
    answers to J&B’s complaint, the only nonprocedural written document
    
    in the record submitted by the City, either to this Court or the
    
    district court, is its 15-page appellate brief that is similarly
    
    unenlightening.   Finally, the City has not presented the record of
    
    evidentiary hearings, if any, conducted by the district court.
    
         The first piece of evidence that the district court relied
    
    
         9
              See supra note 3.
    
                                   -25-
    upon to conclude that the City enacted the Ordinance to combat
    
    secondary effects linked to public nudity is the Ordinance’s
    
    preambulatory clause stating that “the City of Jackson has a
    
    legitimate interest in combating secondary effects associated with
    
    public places where persons who are physically present appear nude
    
    amongst strangers.” In Lakeland Lounge, we explained that the mere
    
    incantation of the words “secondary effects” may not save a statute
    
    “formulated   without     specific    attention    to   specific     secondary
    
    effects.” Lakeland Lounge, 973 F.2d at 1259. No explanation of what
    
    specific secondary effects motivated Jackson to enact the Ordinance
    
    appears in its text, and the City Council failed to make any
    
    specific legislative findings prior to enactment. See id.; see also
    
    Phillips, 107 F.3d at 173 (“There is no articulation by the state
    
    of what it perceives its relevant interests to be and how it thinks
    
    they will be served.      This is particularly troublesome in a case,
    
    like this,    where   the    legislative    findings    speak   in   terms   of
    
    ‘serious objectionable operational characteristics,’ ‘deleterious
    
    effects,’    and   ‘the     deterioration   of    the   community’     without
    
    identifying in any way those ‘characteristics,’ those ‘effects,’ or
    
    that ‘deterioration.’”).         Moreover, because the district court
    
    granted summary judgment before the record was fully developed, the
    
    City did not present evidence in court to demonstrate “a current
    
    governmental interest” that might validate the Ordinance.              Barnes,
    
    501 U.S. at 582, 111 S. Ct. at 2469 (Souter, J., concurring)
    
    
                                         -26-
    (upholding ordinance in absence of preenactment evidence where
    
    government presented sufficient evidence at trial to justify the
    
    ordinance); Renton, 475 U.S. at 51-52, 106 S. Ct. at 931 (upholding
    
    ordinance regulating adult entertainment where government justified
    
    ordinance by placing sufficient studies into evidence to establish
    
    that the studies could reasonably be believed to be relevant to the
    
    problems the government faced).                  Further, no evidence exists to
    
    indicate how the City believed that the Ordinance might further its
    
    interests.         See    DLS,     107    F.3d    at   410   (upholding    ordinance
    
    regulating nude dancing where government introduced sufficient
    
    evidence to enable the court to determine that the government had
    
    a reasonable basis for determining that the ordinance might further
    
    its interests).          Thus, this preambulatory clause may be one piece
    
    of evidence in support of the Ordinance, if properly explained.                      On
    
    the skeletal record before us, however, and in the absence of any
    
    evidence suggesting that the City enacted the Ordinance with
    
    “specific    attention        to    specific       secondary    effects”       or   any
    
    justification at trial and explanation as to how the Ordinance may
    
    further the City’s interests, this clause is insufficient to
    
    justify the Ordinance.
    
           The second piece of evidence that the district court relied
    
    upon   to   find    that    the    City    enacted     the   Ordinance    to    combat
    
    secondary effects linked to public nudity was the City’s experience
    
    in enacting the 1991 zoning ordinance.                 Prior to enacting the 1991
    
    
                                              -27-
    zoning ordinance,      Jackson’s    City    Council    received     information
    
    regarding   studies    on   secondary     effects     associated    with   adult
    
    entertainment in other cities.          See Lakeland Lounge, 973 F.2d at
    
    1258-59.    Other than the inference that Jackson must have had the
    
    same interests because the composition of the City Council that
    
    enacted the Ordinance was the same as the City Council that enacted
    
    the 1991    zoning    ordinance,    however,   the     City   has   offered   no
    
    reasoned explanation linking the two ordinances, for how they seek
    
    to further similar interests, or for how it could reasonably
    
    conclude that banning public nudity might further its interests.
    
    Therefore, in light of Barnes, we find this single piece of
    
    evidence to be insufficient to justify the Ordinance as fulfilling
    
    a substantial governmental interest for the following reasons.
    
    Barnes eschews an examination of the motives of legislators and
    
    their knowledge in favor of a determination as to whether the
    
    challenged ordinance may be valid in the service of a current
    
    governmental   interest     and    some    evidence    that   the   challenged
    
    enactment may further that interest.          See Barnes, 501 U.S. at 582,
    
    111 S. Ct. at 2469 (Souter, J., concurring) (“At least as to the
    
    regulation of expressive conduct, ‘[w]e decline to void [a statute]
    
    essentially on the ground that it is unwise legislation which [the
    
    legislator] had the undoubted power to enact and which could be
    
    reenacted in its exact form if the same or another legislator made
    
    a ‘wiser’ speech about it.’”) (alterations in original) (quoting
    
    
                                        -28-
    O’Brien, 391 U.S. at 384, 88 S. Ct. at 1683).     Thus, the district
    
    court’s focus on the City Council members’ knowledge directs our
    
    attention precisely where it should not be.      Moreover, under the
    
    intermediate scrutiny standard of review, the government bears the
    
    burden of providing sufficient evidence to justify a regulation,
    
    not the district court.     See Renton, 475 U.S. at 48, 96 S. Ct. at
    
    929; see also Turner Broadcasting, 512 U.S. at 664-65, 114 S. Ct.
    
    at 2470.    The district court in this case completely obviated the
    
    City’s burden by attempting to justify the Ordinance for the City
    
    before the City had a chance to do so when it prematurely granted
    
    summary judgment, and we thus have no way of knowing how the City
    
    might justify the Ordinance.
    
         Prudence also suggests that making the entire determination of
    
    whether a challenged ordinance is constitutional hinge upon the
    
    prior experiences of legislators, absent reasoned explanation, is
    
    unwise.     While the district court’s conclusion that the prior
    
    experiences of legislators can justify a challenged ordinance
    
    without reasoned explanation linking the earlier enactment to the
    
    challenged ordinance may be easily applied in this case, we may
    
    quickly become bogged down in a morass of line-drawing in future
    
    cases.     First, what if some but not all of the legislators have
    
    previously received information on secondary effects. How many are
    
    enough?    Half?   Two-thirds?   How long can pass between the review
    
    of the materials and the challenged ordinance?          What if the
    
    
                                      -29-
    applicable law has changed in the interim?             As Justice Souter’s
    
    concurrence in Barnes suggests, there are no easy answers to these
    
    questions.     Prudence thus dictates that the past experiences of
    
    legislators,     while   perhaps    relevant     in   determining     whether
    
    sufficient    evidence    exists   to   uphold   an   ordinance,     are    not
    
    factually sufficient to uphold an ordinance in and of themselves.
    
         Our conclusion is in accord with the Third Circuit’s recent en
    
    banc opinion in Phillips, 107 F.3d at 178.               After the Borough
    
    enacted a zoning statute regulating adult entertainment, Phillips,
    
    who desired to open an adult video and bookstore, brought suit
    
    challenging the constitutionality of the zoning statute on grounds
    
    that the Borough had failed to make preenactment legislative
    
    findings.      The district court partially granted the Borough’s
    
    motion to dismiss, and later granted summary judgment in favor of
    
    the Borough. Id. at 173.      The Third Circuit vacated the orders and
    
    remanded the case because the district court had granted the
    
    motions to dismiss and for summary judgment before the Borough had
    
    articulated what governmental interests it sought to advance and
    
    how the ordinance might further those interests.10            Id.
    
         10
                As the Third Circuit aptly noted:
    
               It may well be that the defendants here, by pointing to
         studies from other towns and to other evidence of legislative facts,
         will be able to carry their burden of showing that the ordinance is
         reasonably designed to address the reasonably foreseeable secondary
         effect problems. Nevertheless, our First Amendment jurisprudence
         requires that the Borough identify the justifying secondary effects
         with some particularity, that they offer some record support for the
         existence of those effects and for the Ordinance’s amelioration
         thereof, and that the plaintiffs be afforded some opportunity to
    
                                        -30-
          In conclusion,      as a result of the district court’s premature
    
    grant of summary judgment, the record now before us is simply too
    
    bare to support its conclusion that the City enacted the Ordinance
    
    based on a desire to combat secondary effects linked to public
    
    nudity, as applied to nude dancing.             We are not in a position to
    
    review this conclusion or determine whether the City could have a
    
    reasonable belief that the Ordinance might further its interests.
    
    Because    the   burden   of   proof    under   the   intermediate    scrutiny
    
    standard of review is on the City and insufficient evidence exists
    
    to indicate that the City has met its burden under this prong on
    
    the record now before us, we vacate the district court’s grant of
    
    summary judgment in favor of the City.11
    
                                            3
    
          O’Brien’s third criterion requires that “the governmental
    
    interest be unrelated to the suppression of free expression.”
    
    O’Brien, 391 U.S. at 376-77, 88 S. Ct. at 1678-79.            Both Renton and
    
    
          offer evidence in support of the allegations of their complaint. To
          insist on less is to reduce the First Amendment to a charade in this
          area.
    
    Phillips, 107 F.3d at 175.
          11
                We have vacated the district court’s grant of summary judgment on
    factual grounds. Because the Ordinance will not be a reasonable time, place and
    manner regulation if it fails even one prong of O’Brien, J&B has advanced various
    other arguments as to why it is entitled to summary judgment as a matter of law
    that, if successful, would obviate the need for a remand, and the district court
    granted summary judgment to the City in the same order in which it denied J&B’s
    motion for summary judgment, we will proceed to review J&B’s remaining arguments
    as to why it is entitled to summary judgment as a matter of law. See Phillips,
    107 F.3d at 171 (first vacating the district court’s order because the district
    court granted summary judgment before the City justified the challenged ordinance
    and then going on to consider Phillip’s arguments as to why he was entitled to
    summary judgment as a matter of law).
    
                                           -31-
    the plurality and Justice Souter’s concurrence in Barnes held that
    
    a regulation satisfies this criterion and is content neutral for
    
    purposes of applying the O’Brien test if it can be “‘justified
    
    without   reference    to   the    content     of   the    regulated   speech.’”
    
    Barnes, 501 U.S. at 586, 111 S. Ct. at 2471 (emphasis in original)
    
    (quoting Renton, 475 U.S. at 48, 
    106 S. Ct. 929
    ). The majority in
    
    Renton and Justice Souter in Barnes found that secondary effects
    
    associated with adult theaters and public nudity, as applied to
    
    nude dancing, respectively, can justify their restriction or ban.
    
    See Barnes, 501 U.S. at 585-86, 111 S. Ct. at 2470-71; Renton, 475
    
    U.S. at 47-48, 106 S. Ct. at 929.         “Because the State’s interest in
    
    banning nude dancing results from a simple correlation of such
    
    dancing with other evils, rather than from a relationship between
    
    the other evils and the expressive component of the dancing, the
    
    interest is unrelated to the suppression of free expression.”
    
    Barnes,   501   U.S.   at   586,    111   S.   Ct.    at    2471   (Souter,   J.,
    
    concurring).    If Barnes applies, therefore, the City has satisfied
    
    the third prong of O’Brien.
    
         Perhaps sensing that it has a tough row to hoe if Barnes
    
    applies, J&B contends that Barnes-O’Brien analytical framework is
    
    inapplicable because the framework only applies to content neutral
    
    laws, and the Ordinance is not content neutral for two reasons.
    
    J&B first argues that the Ordinance is not content neutral because
    
    it is underinclusive.       J&B contends that the Indiana statute in
    
                                         -32-
    question in Barnes banned all public nudity, while the Ordinance’s
    
    exception exempts persons “engaged in expressing a matter of
    
    serious literary, artistic, scientific or political value” from its
    
    reach.12    As such, J&B avers that whether the Ordinance covers a
    
    particular instance of nudity can be determined only by examining
    
    the content of the nudity, which it claims is precisely what the
    
    First Amendment prohibits and triggers the strict scrutiny standard
    
    set out in Texas v. Johnson, 
    491 U.S. 397
    , 
    109 S. Ct. 2533
    , 105 L.
    
    Ed. 2d 342 (1989).       J&B alternatively contends that the Ordinance
    
    is not content neutral because the City enacted the Ordinance for
    
    an improper purpose))i.e., out of dislike for the erotic message
    
    conveyed    by    nude   dancing.   The   district    court   rejected    these
    
    arguments because it found the City’s predominate purpose in
    
    enacting    the    Ordinance   to   be    ameliorating    secondary     effects
    
    associated with public nudity, rather than disagreeing with any
    
    erotic message conveyed by nude dancing.
    
          Several reasons compel us to reject J&B’s underinclusiveness
    
    argument. First, although the Indiana statute in question in Barnes
    
    facially banned all nudity, the Indiana Supreme Court appears to
    
    have previously supplied a limiting construction in cases where
    
    “some nudity [occurs] as a part of some larger form of expression
    
    
    
          12
                 J&B also contends that the Ordinance is not content neutral because
    it neither specifies who will determine whether someone is “engaged in expressing
    a matter of serious literary, artistic, scientific or political value” nor
    provides any guidelines on how to make that determination. We construe this as
    an argument that the Ordinance is vague, which we addressed in Section III.B.
    
                                          -33-
    meriting protection, when the communication of ideas is involved.”
    
    Indiana    v.   Baysinger,    
    397 N.E. 2d
       580,   587    (Ind.    1979).
    
    Notwithstanding this limiting construction (quite similar to the
    
    exception in Jackson’s Ordinance), a plurality of the U.S. Supreme
    
    Court and Justice Souter found the statute to be content neutral.
    
    See Barnes, 501 U.S. at 564 n.1, 111 S. Ct. at 2459 (discussing
    
    Baysinger).     Moreover,    concurring        in   Barnes,      Justice   Souter
    
    questioned whether an across-the-board ban on public nudity could
    
    survive an overbreadth challenge if it did not contain an exception
    
    for serious artistic productions such as “Hair” or “Equus.”                   See
    
    Barnes, 501 U.S. at 585 n.2, 111 S. Ct. at 2470 n.2 (“It is
    
    difficult to see, for example, how the enforcement of Indiana’s
    
    statute against     nudity    in    a   production    of   ‘Hair’    or    ‘Equus’
    
    somewhere other than an ‘adult’ theater would further the State’s
    
    interest   in   avoiding     harmful     secondary    effects.”);      see   also
    
    Triplett Grille, 40 F.3d at 136 (striking down an ordinance banning
    
    all public nudity as overbroad because it did not contain an
    
    exception for serious artistic entertainment). Acceptance of J&B’s
    
    argument would place Jackson and other governments between Scylla
    
    and Charybdis: if a government attempted to ban all nudity, its
    
    enactment would become susceptible to an overbreadth challenge,
    
    while if it included an exception for some nudity, it would open
    
    itself up to a content neutrality challenge.               See Miller v. Civil
    
    City of South Bend, 
    904 F.2d 1081
    , 1121 (7th Cir. 1990) (en banc)
    
    
                                            -34-
    (Easterbrook, J., dissenting) (“A decision saying that a statute
    
    does not apply to protected expression recognizes the supremacy of
    
    the Constitution       over    state   law;   to   acknowledge       a   limit   the
    
    Constitution    imposes       on   legislation     is   not    to    abandon     the
    
    generality of the law.”), reversed sub nom. Barnes v. Glen Theatre,
    
    Inc.,   
    501 U.S. 560
    , 
    111 S. Ct. 2456
    , 
    115 L. Ed. 2d 504
     (1991).
    
    Further, Barnes as well as other Supreme Court cases suggest that
    
    where   no   adverse    secondary      effects     linked     to    public   nudity
    
    exist))such as presumably would not occur at a performance of
    
    “Hair” or “Salome”))the government can except the nudity from its
    
    otherwise general prohibition without destroying the enactment’s
    
    content neutrality. See Barnes, 501 U.S. at 585 n.2, 111 S. Ct. at
    
    2470 n.2; Young, 427 U.S. at 82 n.6, 96 S. Ct. at 2458 n.6
    
    (Stevens, J., concurring) (“[E]ven if this were a case involving a
    
    special governmental response to the content of one type of movie,
    
    it is possible that the result would be supported by a line of
    
    cases recognizing that the government can tailor its reaction to
    
    different types of speech according to the degree to which its
    
    special and overriding interests are implicated.”); see also DLS,
    
    107 F.3d at 411-12 (rejecting similar underinclusiveness argument).
    
         J&B alternatively contends that the Ordinance is not content
    
    neutral because the City enacted the Ordinance for an improper
    
    purpose. Pointing to the timing of the Ordinance’s enactment))just
    
    one month after J&B opened Legends Cabaret))J&B claims that despite
    
    
                                           -35-
    the Ordinance’s facial ban on all public nudity, the City enacted
    
    the Ordinance as a result of its dislike for the erotic message
    
    conveyed by nude dancing.13            If this argument were true, Jackson
    
    would     be    targeting     an    activity     “precisely       because    of     its
    
    communicative attributes,” Barnes, 501 S. Ct. at 577, 111 S. Ct. at
    
    2466 (Scalia, J., concurring), thereby rendering the Ordinance
    
    presumptively        unconstitutional.         See,    e.g.,     United    States    v.
    
    Eichman, 
    496 U.S. 310
    , 
    110 S. Ct. 2404
    , 
    110 L. Ed. 2d 287
     (1990)
    
    (burning flag); Texas v. Johnson, 
    491 U.S. 397
    , 
    109 S. Ct. 2533
    ,
    
    
    105 L. Ed. 2d 342
     (1989) (same).
    
         “Courts, however, normally do not look behind the legislative
    
    findings       and   policy    to    attempt     to    discern     the    hidden    (as
    
    distinguished        from   the     stated)    purpose    of     the   legislation.”
    
    Ambassador Books & Video v. City of Little Rock, 
    20 F.3d 858
    , 863-
    
    64 (8th Cir. 1994); see also D.G. Restaurant Corp. v. City of
    
    Myrtle Beach, 
    953 F.2d 140
    , 146 (4th Cir. 1991) (rejecting argument
    
    that legislators enacted a ban on public nudity because they
    
    disagreed with the message conveyed by nude dancing where ban was
    
    enacted shortly after nude dancing club announced plans to open).
    
    Moreover, although one of the Ordinance’s preambulatory clauses
    
    provides that        the    City    enacted    the    Ordinance    because    of    its
    
    interest in protecting order and morality, another clause states
    
    
         13
                Neither the record nor the parties’ briefs indicates whether other
    nude dancing clubs have previously operated in Jackson. If they have, this
    argument would be frivolous and merit no discussion.
    
                                             -36-
    that the City enacted this regulation in response to secondary
    
    effects associated with public nudity.               Finally, J&B does not, and
    
    indeed could     not,    argue    that   the    Ordinance    covers   only    nude
    
    dancing.    Although the Ordinance makes some exceptions, it targets
    
    public nudity.        While J&B may argue that the Ordinance places a
    
    greater burden on it than on others, “[a] regulation that serves
    
    purposes unrelated to the content of expression is deemed neutral,
    
    even if it has an incidental effect on some speakers or messages
    
    but not others.”         Ward, 491 U.S. at 791, 109 S. Ct. at 2754.
    
    Therefore, we reject J&B’s argument that the City enacted the
    
    Ordinance for an improper reason.
    
          J&B has failed to demonstrate that the Ordinance is not
    
    content neutral. The Ordinance thus complies with O’Brien’s third
    
    criterion.14
    
                                             4
    
          J&B additionally contends that the Ordinance fails O’Brien’s
    
    fourth prong because the City provides no alternative avenues of
    
    communication.        The district court held that because Barnes gave
    
    governments     the     power    to   ban     nude    dancing   altogether,    no
    
    alternative avenues of communication need be provided.
    
    
    
          14
                Quoting the old saw that “beauty is in the eye of the beholder,” J&B
    also argues that the Ordinance is not content neutral because the government is
    incapable of distinguishing one form of “art” from another. This argument echoes
    Judge Posner’s concurrence in City of South Bend, 904 F.2d at 1089-1104. While
    this position may have much to commend it, the Supreme Court unambiguously
    refused to adopt it when reversing City of South Bend in Barnes. Accordingly,
    we need not comment further upon this argument.
    
                                           -37-
         The plurality opinion in Barnes upheld the ban on public
    
    nudity under this prong because it found Indiana’s requirements to
    
    be reasonable: “Indiana’s requirement that the dancers wear at
    
    least pasties    and   G-strings      is    modest,   and    the      bare   minimum
    
    necessary to achieve the State’s purpose.”              Barnes, 501 U.S. at
    
    572, 111 S. Ct. at 2463.      Justice Souter expressed a similar view:
    
    “Pasties and a G-string moderate the expression to some degree, to
    
    be sure, but only to a degree.               Dropping the final stitch is
    
    prohibited, but the limitation is minor when measured against the
    
    dancer’s remaining capacity and opportunity to express the erotic
    
    message.”   Id. at 587, 111 S. Ct. at 2471.
    
         We   too   find   the   City’s    restrictions         to   be    reasonable.
    
    Jackson’s Ordinance defines “nudity” as “the showing of the human
    
    genitals, anus, or the female nipple.”            J&B’s dancers presumably
    
    could avoid violating the Ordinance by wearing pasties and a G-
    
    string that covered their nipples, anuses, and genitalia.                     Thus,
    
    J&B’s dancers may have ample avenues of communication open to
    
    express their erotic message;          they would be prevented only from
    
    “dropping the final stitch.” Barnes, 501 U.S. at 587, 111 S. Ct. at
    
    2471 (Souter, J., concurring).             Although not being permitted to
    
    drop that final stitch may decrease the number of patrons who
    
    desire to see the dancing at Legends Cabaret, “[t]he inquiry for
    
    First Amendment purposes is not concerned with economic impact;
    
    rather, it looks only to the effect of this ordinance upon freedom
    
    
                                          -38-
    of expression.”         Young, 427 U.S. at 78, 96 S. Ct. at 2456 (Powell,
    
    J.,    concurring).            Accordingly,       we    conclude   that     Jackson   has
    
    satisfied O’Brien’s fourth criterion.
    
                                                  V
    
           J&B finally contends that the Ordinance is preempted by state
    
    law.       Mississippi has a “home rule” statute that grants cities the
    
    power to enact ordinances related to the care, management, and
    
    control of municipal affairs, as long as the ordinance is not
    
    inconsistent with the state constitution or a state statute.15                        See
    
    MISS. CODE ANN. §       21-17-5.         Section 21-17-5 also provides that the
    
    powers given to municipalities are complete without the existence
    
    of    or    reference     to    any      specific      state   statute.16     Id.     J&B
    
           15
                   MISSISSIPPI CODE ANN. §    21-17-5 provides that
    
           [t]he governing authorities of every municipality of this state
           shall have the care, management and control of the municipal affairs
           . . . In addition to those powers granted by specific provisions of
           general law, . . . municipalities shall have the power to adopt any
           . . . ordinances with respect to such municipal affairs . . . which
           are not inconsistent with the Mississippi Constitution of 1890, the
           Mississippi Code of 1972, or any other statute or law of the State
           of Mississippi . . . [T]he powers granted to . . . municipalities in
           this section are complete without the existence of or reference to
           any specific authority granted in any other statute or law of the
           State of Mississippi.
           16
                  Prior to 1992, a city could “only exercise such powers as are
    delegated by the Legislature . . . [and had] no power except that delegated to
    it by the state . . . [and its] powers . . . [were] to be construed most strongly
    against an asserted right not clearly given and [could not] be extended by mere
    implication.” Hattiesburg Firefighters Local 184 v. City of Hattiesburg, 
    263 So. 2d
     767, 769 (Miss. 1972). Relying on Hattiesburg Firefighters, several cases
    struck down ordinances regulating obscenity on grounds that municipalities were
    not authorized by state law to regulate obscenity. See Videophile, Inc. v. City
    of Hattiesburg, 
    601 F. Supp. 552
    , 553-54 (S.D. Miss. 1985); Fernwood Books and
    Video, Inc. v. City of Jackson, 
    601 F. Supp. 1093
    , 1095-96 (S.D. Miss. 1984). In
    1992, Mississippi increased the power of municipalities by amending § 21-17-5 to
    read: “in addition to those powers granted by specific provisions of general law,
    . . . municipalities shall have the power to adopt any . . . ordinances with
    
                                                -39-
    identifies    several    state    statutes    with    which   it   claims    the
    
    Ordinance is inconsistent.
    
          J&B first contends that Mississippi allows all nonlewd public
    
    nudity because MISS. CODE ANN. § 97-29-31 prohibits wilful and lewd
    
    nudity,17 and that the Ordinance is inconsistent with § 97-29-31
    
    because it prohibits nonlewd public nudity. The Mississippi Supreme
    
    Court has explained on several occasions that an ordinance is
    
    “inconsistent” with a state statute only if the two are in direct
    
    conflict, as determined by reference to the facts of the case at
    
    hand. See Maynard v. City of Tupelo, 
    691 So. 2d 385
    , 388 (Miss.
    
    1997); City of Jackson v. Lee, 
    252 So. 2d 897
    , 898 (Miss. 1971).
    
    Ordinances that supplement or address a different subject matter
    
    than a state statute are not inconsistent with the statute unless
    
    the state has explicitly provided that localities cannot further
    
    regulate a given area. See Lee, 252 So. 2d at 897.             Silence on the
    
    part of the state does not give rise to an inference that the state
    
    has   prohibited     localities     from     enacting    ordinances     further
    
    regulating an area. See Maynard, 691 So. 2d at 388.                  Thus, the
    
    state’s ban of lewd public nudity))and silence on the subject of
    
    
    respect to such municipal affairs . . . which are not inconsistent with”
    Mississippi law.    MISS. CODE ANN. § 21-17-5 (Supp. 1997). Thus, Mississippi
    statutorily abrogated the holdings of Videophile and Fernwood Books, and contrary
    to the arguments of J&B, we will not rely upon those cases.
          17
                Section 97-29-31 provides: “A person who wilfully and lewdly exposes
    his person, or private parts thereof, in any public place, or in any place where
    others are present, or procures another to so expose himself, is guilty of a
    misdemeanor and, on conviction, shall be punished by a fine not exceeding five
    hundred dollars ($500.00) or be imprisoned not exceeding six (6) months, or
    both.”
    
                                          -40-
    nonlewd public nudity))does not give rise to an inference that the
    
    state has expressed an intent to allow nonlewd public nudity.                         See
    
    id.    This conclusion is strengthened by MISS. CODE ANN. § 19-5-103,
    
    which permits boards of supervisors of counties containing or
    
    adjacent to a city with a population of at least 200,000 to
    
    regulate public displays of nudity.                        Although this statute is
    
    inapplicable here,18 its existence further suggests that Mississippi
    
    intended         to   allow   additional       regulation     of    public   nudity   by
    
    localities. See also MISS. CODE ANN. § 21-19-15 (granting police
    
    powers      to    municipalities        but    not    to   boards   of    supervisors).
    
    Accordingly, we reject J&B’s argument that Mississippi intended to
    
    permit nonlewd public nudity by banning lewd nudity.
    
           J&B further argues that the Ordinance directly contradicts
    
    § 97-29-31 because the Ordinance, through the exception, allegedly
    
    allows lewd nudity if the nudity occurs when a person is “engaged
    
    in expressing a matter of serious literary, artistic, scientific or
    
    political value.”             Contrary to J&B’s argument, the Ordinance and
    
    § 97-29-31 may, in fact, overlap.                    Neither § 97-29-31 nor the two
    
    reported         cases   applying       this     section     define      “lewdly.”    See
    
    Pendergrass v. Mississippi, 
    193 So. 2d 126
    , 128 (Miss. 1966)
    
    (reversing the conviction of a nude sunbather under this section);
    
    Stark v. Mississippi, 
    33 So. 175
    , 175 (Miss. 1903) (overturning
    
           18
                  By its terms,      this section is inapplicable for two reasons. First,
    Jackson had a population         of 196,637 in the 1990 federal census. U.S. DEP’T OF
    COMMERCE, COUNTY AND CITY DATA   BOOK 770 (1994). Second, the statute grants the power
    to regulate public nudity        to county boards of supervisors, not to city councils.
    
                                                  -41-
    conviction under this section where indictment omitted the term
    
    “lewdly”).     Other public indecency statutes in other states,
    
    however,   generally     define     “lewd”   by    reference   to    the    Miller
    
    definition of obscenity, the third prong of which is identical to
    
    the Ordinance’s exception. See South Carolina v. Bouye, 
    484 S.E.2d 461
    , 464 (S.C. 1997) (noting that dictionaries define “lewd” and
    
    “obscene” synonymously, and holding that a statute prohibiting lewd
    
    nudity covers only obscenity); Louisiana v. Crater, 
    388 So. 2d 802
    ,
    
    803 (La. 1980) (finding a state statute prohibiting lewd dancing
    
    void for     vagueness    because    it    might   reach    more   than    obscene
    
    dancing); City of Seattle v. Johnson, 
    791 P.2d 266
    , 269 (Wash. Ct.
    
    App.   1990)   (holding     city’s    lewd     conduct     ordinance      facially
    
    overbroad).     Section 97-29-31, to be constitutional, may thus
    
    include an exception in the case of a person “engaged in expressing
    
    a matter of serious literary, artistic, scientific or political
    
    value.”    See Brockett v. Spokane Arcades, Inc., 
    472 U.S. 491
    , 498-
    
    99, 
    105 S. Ct. 2794
    , 2798-99, 
    86 L. Ed. 2d 394
     (1985) (partially
    
    invalidating    Washington’s      public     indecency     statute   because   it
    
    contained an overbroad definition of lewdness); Hill, 482 U.S. at
    
    468-70, 107 S. Ct. at 2513-14. If so, § 97-29-31 and the Ordinance
    
    may overlap, rather than being inconsistent. See, e.g., City of
    
    Hattiesburg v. Region XII Comm’n on Mental Health and Retardation,
    
    
    654 So. 2d 516
    , 518 (Miss. 1995) (rejecting state law preemption
    
    argument     where   state     statute       and    municipality       ordinance
    
    
                                          -42-
    overlapped); Pap’s A.M. v. City of Erie, 
    674 A.2d 338
    , 347 (Pa.
    
    Commw. Ct. 1996) (same).
    
         J&B further contends that the Ordinance is inconsistent with
    
    MISS. CODE ANN. § 97-29-103, which defines obscenity, because the
    
    Ordinance contains only one prong of § 97-29-103’s three-part
    
    obscenity test.19      Section 97-29-103's definition of obscenity
    
    mirrors   the   three-pronged     Miller     obscenity    test,     while    the
    
    Ordinance only contains the “serious literary, artistic, scientific
    
    or political value” prong.        We reject J&B’s argument because, as
    
    the Supreme Court has noted on several occasions, nudity and
    
    obscenity are not synonymous, see Schad, 452 U.S. at 66, 101 S. Ct.
    
    at 2181; Erznoznik, 422 U.S. at 213, 95 S. Ct. at 2275, and
    
    therefore the state’s ban on the latter does not preempt the City’s
    
    ban on the former. See Maynard, 691 So. 2d at 388.           Moreover, as we
    
    noted in our discussion of vagueness, supra, if the City were
    
    required to include all three prongs of Miller and MISS. CODE ANN.
    
    § 97-29-103, it could regulate only obscene nudity, which would
    
    
         19
               MISS. CODE ANN. § 97-29-103 provides that
    
    (1) Material or performance is obscene if:
    
         (a)   To the average person, applying contemporary community
         standards, taken as a whole, it appeals to the prurient interest,
         that is, a lustful, erotic, shameful, or morbid interest in nudity,
         sex or excretion; and
    
         (b)   The material taken as a whole lacks         serious   literary,
         artistic, political or scientific value; and
    
         (c)   The material depicts or describes in a patently offensive way,
         sexual conduct specifically defined in subparagraphs (i) through (v)
         below: . . .
    
                                        -43-
    eviscerate its ability to regulate nonobscene nudity. Cf. SDJ, 837
    
    F.2d at 1280 (rejecting topless bar’s argument that state law
    
    preempted    local   ordinance    because     the    state   law    addressed      a
    
    different, albeit related, area than did the local ordinance). To
    
    the extent that MISS. CODE ANN. § 97-29-103 and the Ordinance
    
    overlap, as    noted   above,     no    preemption    results.      See    City    of
    
    Hattiesburg, 654 So. 2d at 518.
    
         Finally, J&B argues that MISS. CODE ANN. § 19-5-103,20 which
    
    defines “nudity” for purposes of determining the regulatory powers
    
    of a county board of supervisors, constitutes the state’s official
    
    definition    of   nudity   for   all    purposes,    and    that   because       the
    
    Ordinance’s definition of nudity is inconsistent with this statute,
    
    the Ordinance is preempted.        See Steverson v. City of Vicksburg,
    
    
    900 F. Supp. 1
    , 11 n.9 (S.D. Miss. 1994) (suggesting in dicta that
    
    this section may be the state’s definition of nudity).                    The plain
    
    language of the statute, however, contradicts J&B’s argument: “For
    
    purposes of this section the term “nudity” means . . .”                     In our
    
    view, the state would not have begun this statute with the words,
    
    “[f]or purposes of this section” if the state had wanted to create
    
    an all-encompassing definition of nudity.               Bearing in mind the
    
         20
                In relevant part, § 19-5-103 provides:
    
         For the purposes of this section the term “nudity” means uncovered,
         or less than opaquely covered, postpubertal human genitals, pubic
         areas, the postpubertal human female breast below a point
         immediately above the top of the areola, or the covered human male
         genitals in a discernibly turgid state.      For purposes of this
         definition, a female breast is considered uncovered if the nipple
         only or the nipple and areola only are uncovered.
    
                                           -44-
    Mississippi Supreme Court’s guidance that silence on the part of
    
    the state does not indicate an intent to preempt, see Maynard, 691
    
    So. 2d at 388, we are hesitant to say that because Mississippi has
    
    defined “nudity” for purposes of a county board of supervisors’
    
    powers, this definition should apply to municipalities as well.
    
    Since § 21-17-5 now gives municipalities control over the care,
    
    management, and control of municipal affairs “without the existence
    
    of or reference to” specific authority delegated by the state, and
    
    § 19-5-103 applies only to county boards of supervisors, we find
    
    that § 19-5-103 and the Ordinance are not inconsistent. We thus
    
    conclude that the Ordinance is not preempted by state law.
    
                                    VI
    
         For the foregoing reasons, the district court’s grant of
    
    summary judgment in favor of the City is VACATED.   J&B’s arguments
    
    for summary judgment as a matter of law are DENIED.    The case is
    
    REMANDED for proceedings consistent with this opinion.
    
    
    
    
                                   -45-
                                APPENDIX A
    
             ORDINANCE PROHIBITING NUDITY IN A PUBLIC PLACE
    
         WHEREAS, the City of Jackson has a governmental interest in
    protecting order and morality and the City recognizes the societal
    disapproval of nudity in public places and amongst strangers; and
    
         WHEREAS, the City of Jackson has a legitimate interest in
    combating secondary effects associated with public places where
    persons who are physically present appear nude amongst strangers;
    
         WHEREAS, the Supreme Court of the United States in Barnes v.
    Glen Theatre, Inc., has held that a governing authority may
    prohibit nudity in public places;
    
         NOW, THEREFORE, BE IT ORDAINED:
    
         Public nudity
    
         SECTION 1 (A): A person physically present in a public place
    who is not engaged in expressing a matter of serious literary,
    artistic, scientific or political value who knowingly or
    intentionally:
    
         (1) engages in sexual intercourse;
         (2) appears in a state of nudity; or
         (3) fondles the genitals of himself, herself, or another
         person;
    
    commits public nudity, a misdemeanor.
    
    (b) ‘Nudity’ means the showing of the human genital, anus, or the
    female nipple.
    
         SECTION 2: Any supervisor, manager, property owner, business
    owner, or employer who shall knowingly suffer or permit any person
    to engage in public nudity on premises under their control shall be
    guilty of a misdemeanor.
    
    
    
    
                                   -46-