Dianna Lee White v. County of Henrico ( 2004 )


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  •                             COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Annunziata, Bumgardner, Frank,
    Humphreys, Clements, Felton, Kelsey and McClanahan
    Argued at Richmond, Virginia
    SHARON C. BOYD
    v.            Record No. 0377-02-2
    COUNTY OF HENRICO
    DIANNA LEE WHITE
    OPINION BY
    v.            Record No. 0380-02-2                          JUDGE D. ARTHUR KELSEY
    FEBRUARY 24, 2004
    COUNTY OF HENRICO
    DONNA JEAN WHITE
    v.            Record No. 0381-02-2
    COUNTY OF HENRICO
    UPON REHEARING EN BANC
    FROM THE CIRCUIT COURT OF HENRICO COUNTY
    George F. Tidey, Judge
    C. David Whaley (Anthony G. Spencer; Morchower, Luxton & Whaley,
    on brief), for appellants.
    Michael V. Gerrard, Deputy Commonwealth’s Attorney, for appellee.
    Amicus Curiae: Local Government Attorneys of Virginia, Inc.
    (Andrew McRoberts, Goochland County Attorney; Walter C. Erwin,
    Lynchburg City Attorney, on brief), for appellee.
    The trial court convicted Sharon Boyd, an erotic dancer, of violating Henrico County’s
    public nudity ordinance. The two owners of the strip club, Dianna Lee White and Donna Jean
    White, were convicted of aiding and abetting Boyd’s violation. They now appeal, claiming their
    misdemeanor convictions should be overturned on various theories. A divided panel of our
    Court vacated all three convictions. Boyd v. County of Henrico, 
    41 Va. App. 1
    , 
    581 S.E.2d 863
    (2003). Having reconsidered the matter en banc, we reject appellants’ challenge to the public
    nudity ordinance and affirm their convictions.
    I.
    Henrico enacted its public nudity ordinance in 1982. Its text tracks the language of
    similar public nudity ordinances adopted across the Commonwealth.1 The Henrico County
    Board of Supervisors explained its legislative intent in enacting the ordinance this way:
    The purpose of this ordinance is to make unlawful displays of
    public nudity in the County, which are deemed offensive to public
    morality and injurious to the health, safety and general welfare of
    County citizens, regardless of whether such nudity would or would
    not in any specific instance be deemed obscene. The ordinance
    contains exceptions for exhibitions and other performances in
    institutions or establishments, such as theaters and concert halls,
    primarily devoted to expressions of opinion, communication,
    speech, ideas, information, art or drama. The ordinance is based
    1
    Virtually identical ordinances include Accomack County Code § 58-2; City of
    Alexandria Code § 13-1-17; Town of Ashland Code § 12-8.9; Blacksburg City Code § 14-108;
    Chesterfield County Code § 14-33; City of Fairfax Code § 54-227; City of Falls Church Code
    § 22-40; City of Franklin Code § 19-33; County of Franklin Code § 13-13; Town of Leesburg
    Code § 11-91; City of Manassas Code § 78-261; Montgomery County Code § 7-38; City of
    Newport News Code § 27-10.2; City of Norfolk Code § 28-12; City of Radford Code § 60-2;
    City of Roanoke Code § 21-125; City of Richmond Code § 20-104; County of Southampton
    Code § 10-40; City of Suffolk Code § 54-34; City of Virginia Beach Code § 22-10; York County
    Code § 15.5-10.1. Ordinances recognizing similar offenses include City of Emporia Code
    § 90-53; City of Fredericksburg Code § 13-16.1; City of Hopewell Code § 24-10 (indecent
    exposure); Town of Mount Jackson Code § 38-30 (indecent exposure); New Kent County Code
    § 46-15 (indecent exposure); City of Norton Code § 14-219 (indecent exposure); City of
    Petersburg Code § 74-315 (indecent exposure); Town of Purcellville Code § 46-79 (indecent
    exposure); City of Salem Code § 58-17 (indecent exposure); City of Smithfield Code § 50-14
    (indecent exposure); Town of South Boston Code § 70-123 (indecent exposure); Spotsylvania
    County Code § 14-17 (“Indecent Exposure By Entertainers, Waitresses, Waiters, etc.”); Stafford
    County Code § 17-9 (indecent exposure); Town of Warrenton Code § 11-16 (indecent exposure);
    City of Winchester Code § 15-9 (indecent exposure); City of Wytheville Code § 9-14 (indecent
    exposure).
    -2-
    on similar legislation enacted in York County and the City of
    Virginia Beach,2 to mention two examples.
    Since 1982, thirty-eight individuals had been prosecuted under the public nudity ban. This one
    case involves the only application of the ordinance against erotic dancers.
    On July 6, 2001, officers from the Henrico County Police Department went to a newly
    opened erotic club named Gold City Showgirls. While there, the officers observed ten female
    dancers strip down to “pasties” and “G-strings” in exchange for tips. The officers issued
    summonses to the ten dancers they observed, including Boyd, for violating the public nudity
    ordinance and to a club manager, Donna White, for aiding and abetting the violations.3 On July
    8, 2001, the officers returned and observed the same type of semi-nude dancing. The officers
    issued a summons to Dianna White, the manager on duty, and a second summons to Boyd.
    After being found guilty in general district court, appellants appealed to circuit court. In
    the meantime, the owners of Gold City and two erotic dancers filed a civil action in United States
    District Court for the Eastern District of Virginia asserting that the ordinance should be declared
    unconstitutional and the state prosecution enjoined. The federal district court abstained from
    ruling on this issue. Colonial First Props., LLC v. Henrico County Virginia, 
    166 F. Supp. 2d 1070
     (E.D. Va. 2001). The state circuit court case went to trial in late 2001. The parties to the
    criminal case agreed that depositions taken in the federal case could be submitted de bene esse to
    2
    The Virginia Supreme Court rejected a challenge to the Virginia Beach public nudity
    ordinance in Wayside Rest., Inc. v. Virginia Beach, 
    215 Va. 231
    , 
    208 S.E.2d 51
     (1974).
    3
    At the time of the offenses in this case, Henrico County Code § 13-107 made it a
    misdemeanor to
    expose the human male or female genitals, pubic area or buttocks
    or to cover any of them with less than a fully opaque covering, or
    the showing of the female breast or any portion thereof below the
    top of the nipple, or covering of the breast or any portion thereof
    below the top of the nipple with less than a fully opaque covering.
    Henrico County Code § 13-107(a).
    -3-
    the state court. The parties, however, did not agree to submit to the state trial court the transcript
    of the federal court proceeding. Nor did they stipulate to any factual findings made by the
    federal district court during the abstention hearing.4
    The trial court rejected appellants’ constitutional challenges and heard the cases on the
    merits. At trial, appellants admitted the dancers wore “pasties” and “G-strings” on July 6 and
    July 8, 2001. The dancers conceded that their state of undress violated the public nudity
    ordinance, but instead claimed that their striptease act fell within the exemption in the ordinance
    for the performance of “any play, ballet, drama, tableau, production or motion picture” in a
    theater, concert hall, or the like. Henrico County Code § 13-107(c).5 After hearing testimony
    from eight dancers and the two owners of Gold City, the trial court found as a fact that Gold City
    was not a “theater” under the ordinance and the dancers were not engaged in any “theatrical
    performance either.”
    4
    In their appellate brief, appellants quote statements of the County’s counsel made
    during the federal district court hearing. See J.A. 131-35, 141-71. None of these statements,
    however, appears in the trial record of the case before us. Under basic principles of appellate
    review, we may not go beyond the record developed in the trial court. See John v. Im, 
    263 Va. 315
    , 320, 
    559 S.E.2d 694
    , 697 (2002) (On appeal, “we are limited to an examination of the
    record before us” and cannot consider evidence that the appellant “failed to submit to the trial
    court.”). The transcript of the federal district court proceeding, therefore, should not have been
    included in the joint appendix. See Albert v. Albert, 
    38 Va. App. 284
    , 291 n.2, 
    563 S.E.2d 389
    ,
    392 n.2 (2002) (“While the appendix contains worksheets, they were not offered into evidence at
    the hearing nor were they made part of the proffer. These documents, therefore, are not part of
    the record and will not be considered by this Court.”).
    5
    The full text of the exemption provides:
    Nothing contained in this section shall be construed to apply to the
    exhibition, presentation, showing or performance of any play,
    ballet, drama, tableau, production or motion picture in any theater,
    concert hall, museum of fine arts, school, institution of higher
    learning or other similar establishment which is primarily devoted
    to such exhibitions, presentations, shows or performances as a
    form of expression of opinion, communication, speech, ideas,
    information, art or drama.
    Henrico County Code § 13-107(c).
    -4-
    II.
    Appellants challenge the public nudity ordinance on various grounds. They contend that
    (a) the public nudity ordinance infringes on their First Amendment right to erotic dancing; (b)
    the ordinance should be declared void for vagueness; (c) the County violated equal protection
    principles by selectively enforcing the ordinance against them; (d) the County has no delegable
    authority from the General Assembly to enact this ordinance; and (e) the evidence proves their
    entitlement to the theater exemption to the ordinance.6
    We begin our analysis with basic principles of judicial review. All legislative acts are
    “presumed to be constitutional.” In re Phillips, 
    265 Va. 81
    , 85, 
    574 S.E.2d 270
    , 272 (2003); see
    also Bosang v. Iron Belt Bldg. & Loan Ass’n, 
    96 Va. 119
    , 123, 
    30 S.E. 440
    , 441 (1898); Johnson
    v. Commonwealth, 
    40 Va. App. 605
    , 612, 
    580 S.E.2d 486
    , 490 (2003) (recognizing that every
    legislative act “is presumed to be constitutional, and the Constitution is to be given a liberal
    construction so as to sustain the enactment in question, if practicable”). This presumption is
    “one of the strongest known to the law.” Harrison v. Day, 
    200 Va. 764
    , 770, 
    107 S.E.2d 594
    ,
    598 (1959). Under it, courts must “resolve any reasonable doubt” regarding the constitutionality
    6
    Sprinkled throughout appellants’ brief are isolated sentences, sometimes mere phrases
    or words, that implicate other legal issues. In a single sentence, for example, appellants claim
    the ordinance “operates as a regulatory taking without just compensation” in violation of due
    process principles. Appellants also mention, in an argument heading, the right of “free
    association” without any further elaboration. The word “over-breadth” is used once, apparently
    (and erroneously) as a synonym for the word “vagueness.” Similar perfunctory statements are
    made about the lack of “prompt judicial review” and the County’s failure to leave “sufficient
    sites for adult businesses to open and operate.” The trial record reflects that few, if any, of these
    conclusory assertions were adequately raised below. In any event, we will not consider them on
    appeal. Rule 5A:20(e) requires the appellants’ brief to include, among other things, the
    “principles of law, the argument, and the authorities relating to each question presented.”
    Statements unsupported by “argument, authority, or citations to the record” do not merit
    appellate consideration. Thomas v. Commonwealth, 
    38 Va. App. 319
    , 321 n.1, 
    563 S.E.2d 406
    ,
    407 n.1 (2002); Dickerson v. Commonwealth, 
    36 Va. App. 8
    , 15, 
    548 S.E.2d 230
    , 234 (2001);
    Bennett v. Commonwealth, 
    35 Va. App. 442
    , 452, 
    546 S.E.2d 209
    , 213 (2001); Buchanan v.
    Buchanan, 
    14 Va. App. 53
    , 56, 
    415 S.E.2d 237
    , 239 (1992).
    -5-
    of a law in favor of its validity. In re Phillips, 
    265 Va. at 85
    , 
    574 S.E.2d at 272
    ; see also
    Wayside Rest., Inc. v. Virginia Beach, 
    215 Va. 231
    , 236, 
    208 S.E.2d 51
    , 55 (1974) (holding
    public nudity ordinance constitutional). “To doubt is to affirm.” Peery v. Bd. of Funeral Dirs.,
    
    203 Va. 161
    , 165, 
    123 S.E.2d 94
    , 97 (1961) (quoting City of Roanoke v. Elliott, 
    123 Va. 393
    ,
    406, 
    96 S.E. 819
    , 824 (1918)).
    A.      The Public Nudity Ordinance Does
    Not Violate The First Amendment.
    Statutes prohibiting public nudity are of “ancient origin” and “reflect moral disapproval of
    people appearing in the nude among strangers in public places.” Barnes v. Glen Theatre, Inc., 
    501 U.S. 560
    , 568 (1991) (plurality). For this reason, it has been the traditional view that whatever
    natural law construct exists to support the “right to appear au naturel at home,” that right is
    “relinquished when one sets foot” outside. Richards v. Thurston, 
    424 F.2d 1281
    , 1285 (1st Cir.
    1970).7 Even so, in the “outer ambit” of constitutional theory, the erotic speech component of a
    particular form of public nakedness — nude dancing at strip clubs — receives “some measure” of
    First Amendment protection. Erie v. Pap’s A.M., 
    529 U.S. 277
    , 289 (2000) (plurality); see also
    Barnes, 
    501 U.S. at 566
    . The right, however, is hardly a robust one. At best, it receives a
    “diminished form of protection under the First Amendment,” Ben’s Bar, Inc. v. Village of
    Somerset, 
    316 F.3d 702
    , 707 (7th Cir. 2003), because it involves the “barest minimum of protected
    7
    See also United States v. Biocic, 
    928 F.2d 112
    , 116 (4th Cir. 1991) (finding no right to
    public nudity under “the profound rights of personhood and privacy”); Chapin v. Southampton,
    
    457 F. Supp. 1170
    , 1174 (E.D.N.Y. 1978) (“It is undoubted that public nudity can be banned.”
    (citation omitted)); Tri-State Metro Naturists v. Lower, 
    529 A.2d 1047
    , 1050-53 (N.J. Super. Ct.
    Law Div. 1987) (recognizing that no right to appear nude in public exists under the First, Fifth,
    or Fourteenth Amendments); People v. Hollman, 
    500 N.E.2d 297
    , 301 (N.Y. 1986) (observing
    that “prohibiting public nudity is plainly within the State’s police powers”); State v. Ciancanelli,
    
    45 P.3d 451
    , 455 (Or. 2002) (surveying historical disdain toward public nudity); Lacour v. State,
    
    21 S.W.3d 794
    , 796 (Tex. App. 2000) (recognizing public nudity as “merely conduct; not
    expressive conduct”).
    -6-
    expression,” Barnes, 
    501 U.S. at 565
     (quoting Doran v. Salem Inn, Inc., 
    422 U.S. 922
    , 932 (1975)).
    Put another way, the right is only “marginally” within the “outer perimeters” of the First
    Amendment. Barnes, 
    501 U.S. at 566
    .
    Appellants claim the Henrico public nudity ordinance violates the marginal free speech
    rights inherent in erotic dancing. They rest this claim on two assertions. First, appellants contend
    the ordinance constitutes the most serious of all First Amendment violations: a content-based
    restriction on free speech.8 Second, appellants argue that the public nudity ordinance — even if not
    content based — still works such a hardship on their free speech rights that it must be declared
    unconstitutional. We reject both arguments, finding they reflect a basic misunderstanding of First
    Amendment law.
    A law regulating expressive activity should be deemed content neutral “so long as it is
    ‘justified without reference to the content of the regulated speech.’” Ward v. Rock Against
    Racism, 
    491 U.S. 781
    , 791 (1989) (emphasis in original and citation omitted). Because such
    regulations are “unrelated to [the suppression of] expression,” Lorillard Tobacco Co. v. Reilly,
    
    533 U.S. 525
    , 567 (2001), they are subjected to a “less-rigorous analysis,” Turner Broad. Sys. v.
    FCC, 
    520 U.S. 180
    , 213 (1997). Sufficient government interests justifying content-neutral
    regulations include “preventing harmful secondary effects,” Erie, 
    529 U.S. at 293
    , and
    “protecting order and morality,” Barnes, 
    501 U.S. at 569
    , both classic expressions of state police
    powers.
    8
    Laws that “by their terms distinguish favored speech from disfavored speech on the basis
    of the ideas or views expressed are content based.” Bartnicki v. Vopper, 
    532 U.S. 514
    , 526 (2001)
    (quoting Turner Broad. System, Inc. v. FCC, 
    512 U.S. 622
    , 642-43 (1994)). Content-based
    regulations on speech can withstand a constitutional challenge only by satisfying “the most exacting
    scrutiny.” Turner Broad. System, Inc., 
    512 U.S. at 641-42
    ; see also Republican Party of Minnesota
    v. White, 
    536 U.S. 765
    , 774-75 (2002); Los Angeles v. Alameda Books, Inc., 
    535 U.S. 425
    , 434
    (2002) (plurality).
    -7-
    The Henrico public nudity ban regulates conduct — not the content of anyone’s speech.
    In this respect, the ordinance is no different from either of the two public nudity laws deemed
    content neutral in Barnes and Erie. As the United States Supreme Court said in Erie:
    The ordinance here, like the statute in Barnes, is on its face a
    general prohibition on public nudity. By its terms, the ordinance
    regulates conduct alone. It does not target nudity that contains an
    erotic message; rather, it bans all public nudity, regardless of
    whether that nudity is accompanied by expressive activity.
    Erie, 
    529 U.S. at 290
    . The same can be said of the Henrico ordinance.
    True, some may “view restricting nudity on moral grounds as necessarily related to
    expression.” Barnes, 
    501 U.S. at 570
    . And, in an abstract sense, it is entirely fair to say that
    people “who go about in the nude in public may be expressing something about themselves by so
    doing.” 
    Id.
     This point, however, proves too much. Taken to its logical limits, it obliterates any
    First Amendment distinctions between speech and conduct. A flasher in a public mall may
    genuinely intend to communicate a message — whether erotic, neurotic, or both. But the
    communicative element in his conduct should receive no constitutional protection. Despite the
    libertarian traditions animating the First Amendment, we are not dealing here with protecting the
    societal value of “untrammeled political debate” and “few of us would march our sons and
    daughters off to war to preserve a citizen’s right” to unlimited expression of public sexuality.
    Erie, 
    529 U.S. at 294
     (quoting Young v. Am. Mini Theatres, Inc., 
    427 U.S. 50
    , 70 (1976)).
    Appellants take no issue with Erie or Barnes, but instead seek to distinguish them on the
    ground that the Henrico ordinance contains an exemption for theatrical performances. The
    public nudity ban in Erie, appellants argue, applied to theaters. From there, appellants reason
    that the theatrical nudity exemption in the Henrico ordinance transforms an otherwise
    permissible, content-neutral public nudity ban into a thinly disguised content-based restriction.
    We disagree.
    -8-
    Despite the fact that the public nudity ban in Erie did not include an express exemption,
    the prosecutor in Erie stipulated that the ban did not apply to theatrical and artistic nudity.
    Making the same argument as appellants do here, the dissent in Erie seized upon this stipulation:
    In an earlier proceeding in this case, the Court of Common Pleas
    asked Erie’s counsel “what effect would this ordinance have on
    theater . . . productions such as Equus, Hair, O[h!] Calcutta[!]?
    Under your ordinance would these things be prevented . . . ?”
    Counsel responded: “No, they wouldn’t, Your Honor.” App. 53.
    Indeed, as stipulated in the record, the city permitted a production
    of Equus to proceed without prosecution, even after the ordinance
    was in effect, and despite its awareness of the nudity involved in
    the production. . . . As presented to us, the ordinance is
    deliberately targeted at Kandyland’s type of nude dancing (to the
    exclusion of plays like Equus), in terms of both its applicable
    scope and the city’s enforcement.
    *       *      *       *         *     *       *
    Nor could it be contended that selective applicability by stipulated
    enforcement should be treated differently from selective
    applicability by statutory text. See Barnes, 
    501 U.S. at 574
     (Scalia,
    J., concurring in judgment) (selective enforcement may affect a
    law’s generality). Were it otherwise, constitutional prohibitions
    could be circumvented with impunity.
    
    Id.
     at 328 n.12 (Stevens, J., dissenting). The plurality in Erie rejected this argument and
    acknowledged that its own analysis presupposed that the public nudity ban had “the effect of
    limiting one particular means of expressing the kind of erotic message being disseminated at
    Kandyland.” Id. at 293.
    The same is true of the public nudity ban in Barnes. Notwithstanding the absence of any
    express exemption, the public nudity ban there had been construed by the state courts to exclude
    theatrical nudity.9 The Supreme Court acknowledged this limiting construction on the ordinance
    9
    See Indiana v. Baysinger, 
    397 N.E.2d 580
    , 587 (Ind. 1979) (noting that it is
    “constitutionally required to tolerate or to allow some nudity as a part of some larger form of
    expression meriting protection” and, therefore, limiting the reach of the Indiana Public Indecency
    statute only to activities involving pure conduct containing no constitutionally protected
    expressive element); Glen Theatre, Inc. v. Pearson, 
    802 F.2d 287
    , 289 (7th Cir. 1986) (basing its
    -9-
    as a legitimate effort by the state courts to “save it from a facial overbreadth attack.” Barnes,
    
    501 U.S. at
    564 n.1. In his concurring opinion, Justice Scalia agreed:
    Respondents also contend that the statute, as interpreted, is not
    content-neutral in the expressive conduct to which it applies, since
    it allegedly does not apply to nudity in theatrical productions. See
    State v. Baysinger, 
    272 Ind. 236
    , 247, 
    397 N.E.2d 580
    , 587 (1979).
    I am not sure that theater versus non-theater represents a
    distinction based on content, rather than format, but assuming that
    it does, the argument nonetheless fails for the reason the plurality
    describes, ante, at 564, n.1.
    
    Id.
     at 574 n.2.
    By including an express exemption for theatrical nudity, Henrico merely put in writing
    what was implicit in both the Erie and Barnes public nudity bans. The exemption in the Henrico
    ordinance does nothing more than ensure that the ordinance incidentally restricts the least
    amount of expressive conduct, and thus, protects the ordinance against an overbreadth challenge.
    See, e.g., Giovani Carandola, Ltd. v. Bason, 
    303 F.3d 507
    , 517-19 (4th Cir. 2002) (holding lack
    of a theater exemption raised overbreadth problems sufficient to warrant a preliminary
    injunction).
    In addition, the theatrical nudity exemption reflects a legitimate recognition of the unique
    secondary effects associated with erotic clubs. “Establishments that purvey erotica, live or
    pictorial, tend to be tawdry, to be offensive to many people, and to attract a dubious, sometimes a
    disorderly, clientele.” Blue Canary Corp. v. City of Milwaukee, 
    251 F.3d 1121
    , 1124 (7th Cir.
    2001). The impact of erotic dancing and other sexually oriented businesses on the surrounding
    community is “all too real.” Alameda Books, Inc., 
    535 U.S. at 444
     (Kennedy, J., concurring).10
    rejection of the plaintiff’s overbreadth claim on the limiting construction provided by
    Baysinger).
    10
    See Erie, 
    529 U.S. at 299
     (rejecting suggestion in dissenting opinion that municipality
    must develop “specific evidentiary record” on secondary effects); Giovani Carandola, Ltd., 
    303 F.3d at 514
     (“No record evidence supports this [secondary effects] claim . . . . Even though the
    - 10 -
    A public nudity ban should be “properly evaluated as a content-neutral restriction
    because the interest in combating the secondary effects associated with those clubs is unrelated
    to the suppression of the erotic message conveyed by nude dancing.” Erie, 
    529 U.S. at 296
    ; see
    also Clark v. City of Lakewood, 
    259 F.3d 996
    , 1004 (9th Cir. 2001). So, while the messages
    conveyed by erotic dancing and theatrical nudity may be similar, the social by-products of each
    medium may be considerably different. See DLS, Inc. v. Chattanooga, 
    107 F.3d 403
    , 412 n.9
    (6th Cir. 1997).11 Within the “limited field of regulations on public exhibitions of adult
    entertainment,” therefore, the presence of negative secondary effects permits public nudity
    regulations to be treated “as content-neutral and so subject only to intermediate scrutiny.”
    Giovani Carandola, Ltd., 
    303 F.3d at 515
    .
    All of this leads to the application of the four-part test governing content-neutral
    restrictions on speech. Under that test, the Henrico ordinance survives scrutiny if it (i) falls
    within “the constitutional power” of the county, (ii) furthers an “important or substantial
    government interest,” (iii) furthers that interest in a manner “unrelated to the suppression of free
    expression,” and (iv) imposes no greater incidental restriction on protected speech “than is
    essential to the furtherance of that interest.” Erie, 
    529 U.S. at 296-301
    ; see also Barnes, 
    501 U.S. at 567
     (quoting United States v. O’Brien, 
    391 U.S. 367
    , 376-77 (1968)). Appellants concede the
    Henrico public nudity ban satisfies prong one. They make no mention of prong two, except to
    Commission has submitted no direct evidence of legislative motive, we believe that precedent
    requires us to evaluate the challenged restrictions as content-neutral provisions aimed at
    secondary effects.”).
    11
    A municipality’s means for attacking secondary effects need not “greatly reduce these
    secondary effects.” SOB, Inc. v. County of Benton, 
    317 F.3d 856
    , 863 (8th Cir. 2003) (citing
    Erie, 
    529 U.S. at 301
    ). Instead, the means must merely “further the interest in combating such
    effects.” 
    Id.
     (citing Erie, 
    529 U.S. at 301
    ). Municipalities enjoy this leeway to have “a
    reasonable opportunity to experiment with solutions to admittedly serious problems.” SOB, Inc.,
    
    317 F.3d at 863
     (citation omitted).
    - 11 -
    mischaracterize it as requiring a “compelling” state interest, a requirement reserved only for
    content-based restrictions. Appellants focus their challenge on prongs three and four.
    On the third prong, appellants argue that the purpose of the ordinance is unrelated to the
    suppression of free expression, but its application is not. In support, appellants again assert that
    the theatrical exemption (written into the text of the ordinance) requires law enforcement
    officials to make content-based distinctions. As noted earlier, however, the same exemption was
    present in Barnes and Erie. It serves an important limiting function and thereby avoids potential
    overbreadth problems with the ordinance. See Barnes, 
    501 U.S. at
    564 n.1. The exemption also
    rests on a valid assessment of the differing secondary effects between the two venues. The focus
    on secondary effects was at the heart of the Erie holding:
    Even if we had not already rejected the view that a ban on public
    nudity is necessarily related to the suppression of the erotic
    message of nude dancing, we would do so now because the
    premise of such a view is flawed. The State’s interest in
    preventing harmful secondary effects is not related to the
    suppression of expression.
    Erie, 
    529 U.S. at 292
    . The theatrical exemption, therefore, does not violate the third prong of the
    content-neutral test any more than it did in Barnes or Erie.
    Appellants also contend that the Henrico ordinance violates the fourth prong. On this
    issue, appellants claim that the legislative intent of the ordinance was merely “to prevent
    urinating in public and similar problems.” But, because the literal text of the ordinance also
    applies to erotic dancing, appellants reason, the ordinance goes further than necessary “to
    prevent or deter public urination, ‘mooning’ or skinny dipping.”
    We cannot accept this analysis for several reasons. To begin with, the trial court made no
    factual finding that the purpose of the ordinance was limited to public urination, mooning, and
    skinny dipping. Appellants’ assertion appears to be taken from a memo from a lieutenant in the
    county police department to the police chief. The memo mentions the need for an ordinance to
    - 12 -
    outlaw public urination, mooning, and skinny dipping. The same memo, however, also adds that
    the ordinance should prohibit “generally being nude in public.” Appellants’ assertion, therefore,
    relies on a non-legislative source that, in any event, contemplates a greater scope than merely
    proscribing mooning, public urination, and skinny dipping.
    The only reliable source for legislative intent in this record can be found in a memo of the
    Henrico County Board of Supervisors accompanying the proposed ordinance at the time of its
    enactment. It makes clear that the stated purpose of the public nudity ban involves broad
    concerns over “public morality” and the need to regulate conduct that the legislative body
    deemed “injurious to the health, safety and general welfare” of the community. It was exactly
    these concerns over “secondary effects, such as the impacts on public health, safety, and
    welfare,” Erie explained, “which we have previously recognized are ‘caused by the presence of
    even one such’ establishment.” Erie, 
    529 U.S. at 291
     (citation omitted). Barnes likewise found
    that an identical expression of the “traditional police power” of a state to “provide for the public
    health, safety, and morals” may serve as a permissible legislative goal for the enactment of a
    public nudity ordinance applicable to erotic dancing. Barnes, 
    501 U.S. at 569
    .12
    Properly applied, the fourth prong of the Erie content-neutral test requires us to consider
    whether the ordinance imposes too great an incidental burden on speech. Before engaging in this
    analysis, we must first frame the issue precisely. The only constitutional right here (albeit one
    12
    Even if we did not have this legislative history, the legislative intent underlying public
    nudity bans can be inferred as a matter of law. See Barnes, 
    501 U.S. at 567-68
     (“It is impossible
    to discern, other than from the text of the statute, exactly what governmental interest the Indiana
    legislators had in mind when they enacted this statute . . . . Nonetheless, the statute’s purpose of
    protecting societal order and morality is clear from its text and history. Public indecency statutes
    of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency,
    including nudity, was a criminal offense at common law, and this Court recognized the common
    law roots of the offense of ‘gross and open indecency’ in Winters v. New York, 
    333 U.S. 507
    ,
    515 (1948). Public nudity was considered an act malum en se. Le Roy v. Sidley, 1 Sid. 168, 82
    Eng. Rep. 1036 (K.B. 1664). Public indecency statutes such as the one before us reflect moral
    disapproval of people appearing in the nude among strangers in public places.”).
    - 13 -
    “marginally” within the “outer perimeters” of the First Amendment, Barnes, 
    501 U.S. at 566
    ) is
    the erotic message implicit in nude or semi-nude dancing. There is no general right to take one’s
    clothes off in public. Nor is there a constitutional right to wear pasties and G-strings rather than
    the lingerie-like tops and bottoms required by the Henrico ordinance. Thus, we cannot ask
    whether requiring slightly more clothes restricts the erotic dancer’s right to be less clothed.
    “Being ‘in a state of nudity,’” after all, “is not an inherently expressive condition.” Erie, 
    529 U.S. at 289
    . Instead, we must ask whether the ordinance unduly burdens the dancer’s ability to
    express her erotic message by requiring her to cover up slightly more of her body with slightly
    more fabric.
    Erie held that going from complete nudity to being partly clothed (with pasties and a
    G-string) involved a de minimis impact on the ability of a dancer to express eroticism. Erie, 
    529 U.S. at 294
    . The Henrico ordinance, in contrast, does not involve a transition from totally nude
    to partly clothed, but rather one from partly clothed to slightly more partly clothed. If going
    from naked to non-naked involves a constitutionally insignificant difference in degree, then the
    incrementally more fabric required by the Henrico ordinance can hardly constitute a
    constitutionally fatal difference. In this respect, the Henrico ordinance involves no more of a
    burden on the dancer’s free speech than the Erie requirement to wear some form of clothing in
    the first place. The dancer’s erotic message still reaches its intended audience. The additional
    clothing just “makes the message slightly less graphic.” Barnes, 
    501 U.S. at 571
    .
    In other words, the pasties and G-string requirement should be understood as the “bare
    minimum necessary to achieve the state’s purpose.” Barnes, 
    501 U.S. at 572
    . It necessarily
    follows that this requirement does not represent “the maximum requirements of dress that an
    anti-nudity ordinance may impose.” Café 207 v. St. Johns County, 
    856 F. Supp. 641
    , 645-46
    (M.D. Fla. 1994), aff’d, 
    66 F.3d 272
     (11th Cir. 1995); see also Bright Lights v. City of Newport,
    - 14 -
    
    830 F. Supp. 378
    , 383-84 (E.D. Ky. 1993). Thus, by going slightly beyond the pasties and
    G-string requirement, the Henrico public nudity ordinance did not so prejudice the eroticism
    inherent in the dancer’s expressive conduct as to run afoul of the First Amendment.
    Moreover, in determining whether “particular conduct possesses sufficient
    communicative elements to bring the First Amendment into play,” we should consider not only
    the messenger’s intent but also whether “the likelihood was great that the message would be
    understood by those who viewed it.” Texas v. Johnson, 
    491 U.S. 397
    , 404 (1989) (quoting
    Spence v. Washington, 
    418 U.S. 405
    , 410-11 (1974)). Along these same lines, we do not accept
    appellants’ unstated assumption that the more graphic the dancer’s display of nudity the more
    erotic her message necessarily becomes. While that may be true at the extremes (like the
    contrast between a dancer in a snow skiing suit and one completely naked), it is not true at the
    margins (like the contrast between a dancer wearing almost nothing and one wearing slightly
    more than almost nothing).
    B.    The Ordinance Is Not Void For Vagueness.
    An enactment may be found void for vagueness under either of two related theories. See
    Hill v. Colorado, 
    530 U.S. 703
    , 732 (2000). First, if a statute “fails to provide people of ordinary
    intelligence a reasonable opportunity to understand what conduct it prohibits” it may be found
    vague. 
    Id.
     Second, an enactment may be found vague if “it authorizes or even encourages
    arbitrary and discriminatory enforcement.” 
    Id.
    Appellants assert both vagueness infirmities with Henrico’s public nudity ordinance. On
    the first point, appellants contend that Henrico officials never gave appellants any advance
    warning that their conduct violated the public nudity ordinance. County officials, however, did
    not have to give the erotic club or any of its dancers specific notice of the ordinance. The mere
    promulgation of the ordinance was notice to all. See generally Bryan v. United States, 524 U.S.
    - 15 -
    184, 196 (1998) (recognizing the “traditional rule that ignorance of the law is no excuse”). “The
    determination whether a criminal statute provides fair warning of its prohibitions must be made
    on the basis of the statute itself and the other pertinent law, rather than on the basis of an ad hoc
    appraisal of the subjective expectations of particular defendants.” Bouie v. Columbia, 
    378 U.S. 347
    , 355 n.5 (1964). Under settled law, therefore, we must apply “an objective test for
    determining whether a statute is vague.” Laurence H. Tribe, Constitutional Law § 12-31, at 1033
    n.3 (2d ed. 1988).
    The proper test focuses on whether a reasonable person could have understood what the
    Henrico public nudity ordinance literally proscribed. See Hill, 
    530 U.S. at 733
    . The Virginia
    Supreme Court resolved that issue in Wayside Rest., Inc. v. Virginia Beach, 
    215 Va. 231
    , 236,
    
    208 S.E.2d 51
    , 55 (1974). There, an erotic club challenged a similar public nudity ordinance on
    vagueness grounds. The Virginia Supreme Court held that the challenged terms in the ordinance
    were “in common use” and “readily understood by the average person.” 
    Id.
     The Henrico
    ordinance uses nearly identical language, having been patterned (the evidence at trial proved)
    expressly after the Virginia Beach ordinance approved by Wayside Rest., Inc.
    For example, the Henrico ordinance defines a “state of nudity” in a manner similar to the
    public nudity ordinance in Wayside Rest., Inc., 
    215 Va. at
    232 n.1, 208 S.E.2d at 52 n.1. The
    words used in the definition section of the public nudity ordinance — “buttocks,” “female
    breast,” “top of the nipple” and the like — are commonly understood terms. Cf. Code
    § 18.2-390(2) (using identical language to define nudity). Similarly, the theater exemption in the
    Henrico ordinance tracks verbatim the exemption in Wayside Rest., Inc., 
    215 Va. at
    232 n.1, 208
    S.E.2d at 52 n.1. Indeed, the Virginia Supreme Court found that the most arguably ambiguous
    language in the exemption — the catch-all phrase “other similar establishment” following the list
    of artistic venues like plays, dramas, and theaters — was not unconstitutionally vague. Id. at
    - 16 -
    236, 208 S.E.2d at 55; see also Bomhower v. Virginia Beach, 
    76 F. Supp. 2d 681
    , 686 (E.D. Va.
    1999) (rejecting similar vagueness challenge to a public nudity ordinance).
    In addition, a specific “scienter requirement” in an ordinance (requiring that criminal
    culpability be grounded on knowing violations of law) further protects a law from a vagueness
    challenge. Hill, 
    530 U.S. at 732
    . 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.” Hoffman Estates v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
    , 499 (1982). The
    Henrico ordinance contains a specific scienter requirement that the accused must “knowingly,
    voluntarily and intentionally” be in public in a “state of nudity.” Henrico County Code
    § 13-107(b). This scienter requirement, built into the text of the ordinance, further undermines
    appellants’ claim of inadequate notice.
    We also disagree with appellants’ argument that the vagueness test should turn on
    whether the Henrico ordinance applies to “technical” violators like women wearing
    “contemporary swimwear” or “short-shorts,” or mothers engaged in breast feeding. As the
    United States Supreme Court recently emphasized, “speculation about possible vagueness in
    hypothetical situations not before the Court” should be given no weight in the analysis. Hill, 
    530 U.S. at
    733 (citing United States v. Raines, 
    362 U.S. 17
    , 23 (1960)). “There is little doubt that
    imagination can conjure up hypothetical cases in which the meaning of these terms will be in
    nice question,” 
    id.
     (quoting Am. Communications Ass’n. v. Douds, 
    339 U.S. 382
    , 412 (1950)),
    but the focus must remain on the facts before the court.
    As a result, one “who engages in some conduct that is clearly proscribed cannot complain
    of the vagueness of the law as applied to the conduct of others.” Hoffman Estates, 
    455 U.S. at 495
    ; see also Parker v. Levy, 
    417 U.S. 733
    , 756 (1974) (“One to whose conduct a statute clearly
    applies may not successfully challenge it for vagueness.”); Bomhower, 
    76 F. Supp. 2d at
    686
    - 17 -
    (holding that an erotic club, against which the public nudity ordinance clearly applied, could not
    assert vagueness claim on behalf of others). The erotic dancers in this case stripped down to
    pasties and G-strings. They were not wearing “contemporary swimwear” or “short-shorts.” Nor
    were they breast feeding on stage. Because the very “nature of judicial review constrains us to
    consider the case that is actually before us,” McConnell v. FEC , 540 U.S. ___, 
    124 S.Ct. 619
    ,
    ___, 
    2003 U.S. LEXIS 9195
    , at *179 (2003) (citation omitted), we decline appellants’ invitation
    to offer an advisory opinion on such “hypothetical situations,” Hill, 
    530 U.S. at 733
     (citation
    omitted).
    We likewise disagree that the ordinance violated the vagueness test on the ground that “it
    authorizes or even encourages arbitrary and discriminatory enforcement.” Hill, 
    530 U.S. at 732
    .
    Because law enforcement always “requires the exercise of some decree of police judgment,”
    Grayned v. City of Rockford, 
    408 U.S. 104
    , 114 (1972), a law should not be invalidated unless
    its clarity has been “designedly avoided so as to allow the net to be cast at large,” Papachristou v.
    City of Jacksonville, 
    405 U.S. 156
    , 166 (1972) (citation omitted).
    On this issue, we see no persuasive point to be made over the fact that a police officer
    must see a particular item of clothing to determine whether to issue a summons. It is entirely
    appropriate for an officer to examine the conduct in question and make a judgment as to whether,
    under the probable cause standard, the conduct is illegal.13 The vagueness test does not forbid
    13
    Appellants claim the officers issued summonses to ten dancers on July 9, 2001, but
    arbitrarily allowed others to continue dancing. This disparity proves, appellants argue, the
    “unfettered discretion” given by the ordinance to law enforcement personnel. The truth is far
    less sinister, however. The Commonwealth’s Attorney had instructed each officer to charge only
    those dancers committing the offense “in the officer’s presence.” After observing the first ten
    dancers, the undercover officers had to leave the bar, pick up their summons books, and then fill
    out the paperwork for each of these dancers. During this timeframe other dancers evidently
    continued to dance. These dancers were not charged because they did not commit the offense in
    the officers’ presence. As the sergeant in charge testified, “we charged everybody that we saw in
    violation.”
    - 18 -
    individualized assessments by law enforcement officers. What it forbids is a law that, by its
    expansive sweep of language, enacts an elastic definition of illegality — one that authorizes an
    officer to define for himself what is and is not legal. Nothing in the Henrico ordinance goes that
    far.
    C.      The County Did Not Engage
    In Unlawful Selective Prosecution.
    Even if the public nudity ordinance survives the vagueness test, appellants argue, the
    County still violated equal protection principles by singling them out for selective prosecution.
    This assertion rests primarily on the prosecutor’s concession that he would not prosecute
    “technical” violations of the ordinance which would include some forms of skimpy swimwear at
    public pools, nursing mothers in public, and the like. We reject this claim for three reasons.
    First, the structure of tripartite government creates a judicial presumption in favor of
    “broad” prosecutorial discretion. See United States v. Armstong, 
    517 U.S. 456
    , 464-65 (1996).
    “This broad discretion rests largely on the recognition that the decision to prosecute is
    particularly ill-suited to judicial review.” Wayte v. United States, 
    470 U.S. 598
    , 607 (1985).
    “Even in the criminal-law field, a selective prosecution claim is a rara avis.” Reno v. Am.-Arab
    Anti-Discrimination Comm., 
    525 U.S. 471
    , 489 (1999). Thus, “[i]n the ordinary case, ‘so long
    as the prosecutor has probable cause to believe that the accused committed an offense defined by
    statute, the decision whether or not to prosecute . . . generally rests entirely in his discretion.’”
    Armstrong, 
    517 U.S. at 464
     (quoting Bordenkircher v. Hayes, 
    434 U.S. 357
    , 364 (1978)).
    “To succeed on a selective-prosecution claim, a defendant must demonstrate that the
    prosecutor’s decision ‘was based on an unconstitutional motive.’” Rowsey v. Lee, 
    327 F.3d 335
    ,
    343 (4th Cir. 2003) (citation omitted). In other words, a selective prosecution claim requires a
    showing that “the prosecutor has brought the charge for reasons forbidden by the Constitution.”
    Armstrong, 
    517 U.S. at 463
    . The claim cannot succeed without proof that the prosecution was
    - 19 -
    “‘deliberately based upon an unjustifiable standard such as race, religion, or other arbitrary
    classification,’ including the exercise of protected statutory and constitutional rights.” Wayte,
    
    470 U.S. at 608
     (quoting Bordenkircher, 
    434 U.S. at 364
    , Oyler v. Boles, 
    368 U.S. 448
    , 456
    (1962), and citing United States v. Goodwin, 
    457 U.S. 368
    , 372 (1982)) (citations omitted).
    Appellants’ as-applied selective prosecution claim fails for the same reason their content-
    based attack fails: The dancers have no First Amendment right to wear pasties and G-strings
    rather than the lingerie-like tops and bottoms required by the Henrico ordinance. Because the
    ordinance involves a content-neutral regulation of conduct that does not unduly burden any
    protected erotic speech, appellants cannot claim they were being targeted for constitutionally
    suspect reasons. Put another way, appellants cannot show that Henrico prosecuted them
    “because of” their expression of constitutionally protected speech. Wayte, 
    470 U.S. at 610
    (emphasis in original).
    Second, the selective prosecution claim, having been rejected by the factfinder at trial,
    can only succeed on appeal if the facts demonstrate it as a matter of law. The factual record
    cannot support this showing. No evidence proved any “technical violations” had in fact occurred
    in Henrico County. Appellants’ argument on this point, as well as the prosecutor’s remarks
    about it, involve purely hypothetical situations — the most fanciful being the observation that the
    enforcement of the public nudity ban would “permit Jennifer Lopez to wear one famously
    revealing dress,” but might prohibit her from wearing others. See post, at 33 (quoting the federal
    court’s abstention order). Once one gets beyond the hypotheticals, no evidence in this case
    demonstrated that the prosecutors had used the ordinance to target erotic dancing. Just the
    opposite was shown: Thirty-eight individuals had been prosecuted under the public nudity ban,
    and this one case involves the only application of the ordinance against erotic dancers.
    - 20 -
    Finally, even if the hypothetical “technical cases” were real, the secondary effects
    doctrine provides a constitutionally adequate basis for judicial deference to prosecutorial
    discretion where no underlying constitutional infringement exists. See generally Erie, 
    529 U.S. at 295
     (recognizing “that one specific occurrence of public nudity — nude erotic dancing — is
    particularly problematic because it produces harmful secondary effects”). The impact on the
    local community of a strip club featuring erotic dancers can hardly be equated with nursing
    mothers in public restaurants, swimmers at a neighborhood pool, or, for that matter, a surprise
    visit from a scantily-clad Jennifer Lopez. For the same reason the secondary effects principle
    provides legitimacy to the governmental interest in regulating the business of erotica, it also
    explains why prosecutors may make commonsense distinctions between nursing mothers and
    swimmers, on the one hand, and erotic dancers, flashers, and public urinators, on the other.14
    D.      The County Had Authority To
    Enact A Public Nudity Ordinance.
    Appellants next claim that the Henrico public nudity ordinance exceeds the County’s
    local governmental powers. We disagree and hold that the ordinance involves a legitimate
    exercise of delegable state police powers.
    Under Code § 15.2-1200, a county may “adopt such measures as it deems expedient to
    secure and promote the health, safety and general welfare of its inhabitants which are not
    inconsistent with the general laws of the Commonwealth.”15 This delegation of police powers
    14
    Appellants also contend on brief that the County does not inspect “high-brow” venues
    such as “art museums or ballets” for potential violations of the public nudity ordinance. We find
    this assertion unpersuasive. Even if the theatrical exemption in the public nudity ordinance did
    not expressly justify this alleged policy of nonenforcement, see ante at 8-11, no evidence in the
    record addresses (much less confirms) appellants’ factual assertion.
    15
    Under Dillon’s Rule, localities may exercise “only those powers which are expressly
    granted by the state legislature, those powers fairly or necessarily implied from expressly granted
    powers, and those powers which are essential and indispensable.” Arlington County v. White,
    - 21 -
    includes the power to regulate nude and semi-nude dancing. See Wayside Rest., Inc., 
    215 Va. at 233
    , 208 S.E.2d at 53 (finding power implicit in county’s power to prohibit “conduct which the
    local governing body reasonably deems to be contrary to the morals, health, safety and general
    welfare of the community”); see, e.g., Erie, 
    529 U.S. at 296
     (“Erie’s efforts to protect public
    health and safety are clearly within the city’s police powers.”); Barnes, 
    501 U.S. at 569
    (recognizing that “the traditional police powers of the States,” defined as “the authority to
    provide for the public health, safety, and morals,” provides a legitimate basis for public
    indecency statutes).
    We also reject appellants’ assertion that the Henrico public nudity ordinance, while an
    otherwise valid expression of the general police power, should be invalidated because it goes
    further than state laws proscribing obscenity and indecent exposure. See Code §§ 18.2-375,
    18.2-387. “The mere fact that the state, in the exercise of the police power, has made certain
    regulations, does not prohibit a municipality from exacting additional requirements.” Wayside
    Rest., Inc., 
    215 Va. at 234
    , 208 S.E.2d at 53 (quoting King v. Arlington County, 
    195 Va. 1084
    ,
    1090, 
    81 S.E.2d 587
    , 591 (1954)). This remains true as long as the locality “does not attempt to
    authorize by the ordinance what the legislature has forbidden or forbid what the legislature has
    expressly licensed, authorized, or required.” Id. at 234, 208 S.E.2d at 54.
    E.      The Evidence Supports The
    Trial Court’s Findings Of Fact.
    Finally, appellants argue the trial court plainly erred in finding that their semi-nude
    dancing did not fall within the ordinance’s exemption for the performance of any “play, ballet,
    drama, tableau, production or motion picture in any theater, concert hall, museum of fine arts,
    school, institution of higher learning or other similar establishment which is primarily devoted to
    
    259 Va. 708
    , 712, 
    528 S.E.2d 706
    , 708 (2000) (quoting City of Virginia Beach v. Hay, 
    258 Va. 217
    , 221, 
    518 S.E.2d 314
    , 316 (1999) (citations omitted)).
    - 22 -
    such exhibitions, presentations, shows or performances as a form of expression of opinion,
    communication, speech, ideas, information, art or drama.” Henrico County Code § 13-107(c).
    The trial court found as a fact that Gold City was not a “theater,” and the dancers were not
    engaged in any “theatrical performance either.” These conclusions, appellants contend, fail to
    take into account their unique “moves using the pole mounted on the bar,” the “special
    costumes” worn (albeit briefly) during the dance, as well as the overall context of their dancing.
    The trial judge’s factual findings cannot be disturbed on appeal unless no “rational trier
    of fact” could have come to the conclusions he did. Kelly v. Commonwealth, 
    41 Va. App. 250
    ,
    257, 
    584 S.E.2d 444
    , 447 (2003) (en banc) (quoting Jackson v. Virginia, 
    443 U.S. 307
    , 319
    (1979)); Holmes v. Commonwealth, 
    41 Va. App. 690
    , 691, 
    589 S.E.2d 11
    , 11 (2003); Crowder
    v. Commonwealth, 
    41 Va. App. 658
    , 663, 
    588 S.E.2d 384
    , 387 (2003). That cannot be said here.
    The dancers took their clothes off on the bar, not a theatrical stage. They did not use scripts, read
    lines, or sing. No one passed out playbills or programs. No stage hands set up props or made
    scene changes. No evidence suggests that the audience came to see a “play, ballet, drama,
    tableau, production or motion picture” or showed up at Gold City thinking it was a “theater” or
    similar establishment under Henrico County Code § 13-107(c). The trial court, therefore, was
    not plainly wrong in finding the theatrical exemption inapplicable.
    III.
    Finding no error in either the trial court’s legal reasoning or the rationality of its
    factfinding, we affirm.
    Affirmed.
    - 23 -
    Fitzpatrick, C.J., with whom Benton and Elder, JJ., join, dissenting.
    I respectfully dissent from the majority opinion. Appellants contend that the ordinance is
    unconstitutional both on its face and as applied in these cases because it violates their First
    Amendment rights to free speech and association, violates the enabling statute and that the
    evidence was insufficient to support the convictions. Because I would decide this case on the
    basis of the content-based selective enforcement, I address that issue only and would not reach
    the other assignments of error addressed by the majority.16
    “Two conflicting rights are involved in [these] appeal[s]: (1) the right to free, individual
    self-expression, and (2) a government’s right to enact legislation for the safety and welfare of its
    citizens.” Adams Outdoor Adv. v. City of Newport News, 
    236 Va. 370
    , 381, 
    373 S.E.2d 917
    ,
    922 (1988).
    The First Amendment of the Constitution provides: “Congress
    shall make no law abridging the freedom of speech.” This freedom
    is among the fundamental personal rights and liberties which are
    protected by the Fourteenth Amendment from invasion by state
    action; and municipal ordinances adopted under state authority
    constitute state action.
    Staub v. City of Baxley, 
    355 U.S. 313
    , 321 (1958). “[T]he First Amendment needs breathing
    space[;] . . . statutes attempting to restrict or burden the exercise of First Amendment rights must
    be narrowly drawn and represent a considered legislative judgment that a particular mode of
    expression has to give way to other compelling needs of society.” Broadrick v. Oklahoma, 
    413 U.S. 601
    , 611-12 (1973). “In assessing the constitutionality of a statute, we must presume that
    the legislative action is valid. The burden is on the challenger to prove the alleged constitutional
    defect.” Woolfolk v. Commonwealth, 
    18 Va. App. 840
    , 848, 
    447 S.E.2d 530
    , 534 (1994).
    16
    Appellants assert several additional constitutional arguments, including that the
    ordinance constitutes a regulatory taking. However, these arguments were not raised in the trial
    court and thus are waived. Rule 5A:18.
    - 24 -
    Vagueness and Lack of Fair Notice
    As applied to them, appellants contend the ordinance violates the First Amendment
    because it is unconstitutionally vague, and it impermissibly regulates content. I agree.
    “Vagueness may invalidate a criminal law for either of two independent reasons. First, it
    may fail to provide the kind of notice that will enable ordinary people to understand what
    conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory
    enforcement.” Chicago v. Morales, 
    527 U.S. 41
    , 56 (1999). While the County can regulate the
    conduct involved here, it “must clearly define the proscribed conduct and must . . . enforce[ ]
    [the ordinance] equally, and not arbitrarily or capriciously, when it is applicable.” Colonial First
    Properties v. Henrico County Virginia, 
    166 F. Supp. 2d 1071
    , 1090 (E.D. Va. 2001).
    “It is a basic principle of due process that an enactment is [unconstitutional] if its
    prohibitions are not clearly defined.” Grayned v. City of Rockford, 
    408 U.S. 104
    , 108 (1972).
    “[W]e 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.” 
    Id.
    The record proves that the County failed to give Gold City “a reasonable opportunity to
    know what is prohibited” under the ordinance. The Commonwealth’s Attorney conceded that he
    would not prosecute people wearing “contemporary swimwear” or “short-shorts,” although these
    items fall within the prohibitions of the ordinance. Moreover, the Commonwealth’s Attorney
    agreed that a mother breast feeding her baby in public would be a violation of the ordinance.17
    Therefore, prior to this prosecution, there was no way for appellants to determine what clothing
    17
    The County correctly notes that breast feeding is statutorily exempted from the
    indecent exposure statute, so no prosecution could follow under state Code § 18.2-387.
    Nevertheless, breast feeding would be what the Commonwealth’s Attorney described as a
    “technical” violation of the county ordinance.
    - 25 -
    would put them in violation of the ordinance. Indeed, although the County was aware of Gold
    City’s proposed format, the County never gave appellants any advance warning that their
    conduct would constitute a violation of the ordinance.18
    The evidence adduced at the federal court hearing showed the events leading up to the
    opening of Gold City and the issuing of summons on July 6 and July 8 to be as follows:
    (1) a week before Gold City opened for business, Gold City
    informed some of the County’s highest-ranking officials of the
    mode of dancing (“pasties and Gstring” [sic]) to be performed;
    (2) at the same time Gold City explained to those officials the view
    that Gold City was covered by an exception to the Ordinance;
    (3) the Acting Chief of Police represented that he was uncertain
    about the matter, but would look into it; (4) he [did] so; (5) the
    same afternoon, the County Attorney and the Commonwealth’s
    Attorney and the Acting Chief of Police had concluded that Gold
    City: (a) was wrong in its interpretation of the Ordinance; (b) the
    mode of dancing Gold City would use was in violation of the
    Ordinance; and (6) the County never informed Gold City of these
    views.
    Colonial First Properties, 
    166 F. Supp. 2d at 1082
    . “Remarkably, and for reasons neither
    expressed nor readily apparent, Gold City was not notified that the County’s executives and law
    enforcement officials had determined that Gold City’s proposed operational format violated the
    Ordinance.” 
    Id. at 1074
    .
    Furthermore, the record indicates that neither the Commonwealth’s Attorney nor the
    police were able to clearly delineate what would constitute a violation of the ordinance or at least
    what they would prosecute as a violation. During cross-examination, one officer stated that he
    would have to see a particular item of clothing before he could state whether it would be in
    violation of the ordinance and that the determination would be made on “a case-by-case basis.”
    Another officer testified that liability under the ordinance would depend on “what type of
    18
    There is a discussion of this issue in the federal court opinion; the federal judge found
    the County’s actions in this regard “unreasonable, unbecoming of government and unfair.”
    Colonial First Properties, 
    166 F. Supp. 2d at 1082
    .
    - 26 -
    G-string [a person] was wearing.” Thus, the application of the ordinance did not clearly define
    the proscribed conduct and vested an unacceptable level of discretion in the hands of those
    charged with enforcing it. Appellants did not have “a reasonable opportunity to know what
    [conduct was] prohibited” prior to the police issuing summonses on July 6, 2001. Grayned, 
    408 U.S. at 108
    .
    Arbitrary Enforcement
    The facts adduced at trial clearly prove that the ordinance violates “the requirement that a
    legislature establish minimal guidelines to govern law enforcement.” Kolender v. Lawson, 
    461 U.S. 352
    , 358 (1983). The Commonwealth’s Attorney conceded that he would not prosecute
    “technical” violations of the ordinance. He did not, however, state how he would distinguish
    between a “technical” violation and those before the trial court. Instead, he conceded that the
    prosecutions at issue here were driven by his opinion of the content of the performances at Gold
    City. Essentially, the County prosecutors and law enforcement personnel exercised their own
    discretion “on an ad hoc and subjective basis.” Grayned, 
    408 U.S. at 109
    . As appellants noted
    in the trial court, “the [ordinance] says one thing. [The Commonwealth is] going to prosecute
    something else.”
    Lastly, one of the officers stated that while they were issuing summonses, other Gold
    City dancers who were in violation of the ordinance continued to perform, but were not cited.
    Rather than continuing to issue summonses, the officer “just brought it to Ms. White’s attention
    that the way they were dressed they were still in violation and that she had to bring them into
    compliance.” Hence, I conclude there was selective enforcement of the ordinance both as to
    Gold City generally and with respect to particular dancers in Gold City. “A vague law
    impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on
    - 27 -
    an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory
    application.” Grayned, 408 U.S at 108-09.
    Content-based Regulation
    “To safeguard free speech, the Supreme Court requires that a regulatory measure be
    content neutral. The doctrine of content neutrality provides that governmental regulations may
    not ‘restrict expression because of its message, its ideas, its subject matter, or its content.’”
    Adams Outdoor Adv., 236 Va. at 381, 
    373 S.E.2d at
    922 (citing Police Dept. of City of Chicago
    v. Mosley, 
    408 U.S. 92
    , 95 (1972)).
    The Commonwealth’s Attorney’s subjective opinion demonstrated that the prosecutions
    in these cases were based “primarily” upon his opinion of the content of the performances. This
    focus on the content of appellants’ conduct at Gold City renders the County’s application of the
    ordinance in these cases unconstitutional.
    “[N]ude [or semi-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.” Barnes v. Glen Theater, Inc., 
    501 U.S. 560
    , 566 (1991). Accordingly,
    “government restrictions on public nudity such as the ordinance at issue here should be evaluated
    under the framework set forth in [United States v.] O’Brien [, 
    391 U.S. 367
     (1968),] for
    content-neutral restrictions on symbolic speech.” Erie v. Pap’s A.M., 
    529 U.S. 277
    , 289 (2000).
    That test provides that
    a government regulation is sufficiently justified if it is within the
    constitutional power of the Government; if it furthers an important
    or substantial governmental interest; if the governmental interest is
    unrelated to the suppression of free expression; and 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 377
    . Appellants conceded at trial that the County “surely” has the authority
    to enact the ordinance. Thus, the first prong in O’Brien is met. Appellants argue, however, that
    - 28 -
    the ordinance does not further a substantial government interest; it is impermissibly related to the
    suppression of protected expressive conduct, namely erotic dancing; and that it is not sufficiently
    narrowly tailored to satisfy O’Brien.
    The second part of the O’Brien test requires that the ordinance further a substantial
    government interest. I agree with the majority’s conclusion that the ordinance “furthers a
    substantial government interest in protecting order and morality.” 
    Id.
     Therefore, the ordinance
    satisfies O’Brien’s second requirement.
    Under the third prong of O’Brien “the governmental interest must be unrelated to the
    suppression of free expression.” Barnes, 
    501 U.S. at 570
    . Although the purpose for which the
    ordinance was adopted satisfies this requirement, the application of the ordinance in these cases
    is problematic. Henrico County adopted the ordinance in 1982 to combat the problems of public
    urination, exposure of the buttocks (i.e., “mooning”) and skinny dipping.19 The ordinance
    provides:
    (a) As used in this section, the term “state of nudity” means a state
    of undress so as to expose the human male or female genitals,
    pubic area or buttocks or to cover any of them with less than a
    fully opaque covering, or the showing of the female breast or any
    portion thereof below the top of the nipple, or covering of the
    breast or any portion thereof below the top of the nipple with less
    than a fully opaque covering.
    (b) Every person who knowingly, voluntarily and intentionally
    appears in public or in a public place or in a place open to the
    public or open to public view in a state of nudity, or employs,
    encourages or procures another person so to appear, shall be guilty
    19
    Included in the record are 1982 staff memoranda from the Henrico County police
    discussing the need for an ordinance to prosecute “urinating or defecating in public, swimming
    in the nude in public, exposing one’s buttocks (mooning) in public, or generally being nude in
    public.” Inter-Office Memorandum from Lieutenant C.S. McCray, Platoon A, Henrico County
    Police Department, to Chief of Police (July 8, 1982). Another member of the police force noted
    that “we do need some type of ordinance to control urinating in public.” Inter-Office
    Memorandum from Colonel L.T. Sheppard, Henrico County Police Department, to
    Commonwealth’s Attorney and County Attorney (July 12, 1982). The Henrico County Board of
    Supervisors unanimously approved the ordinance on September 8, 1982. Minutes, Henrico
    County, Virginia Board of Supervisors (Sept. 8, 1982).
    - 29 -
    of a misdemeanor punishable by confinement in jail for not more
    than six months or a fine of not more than $500.00, or both.
    (c) Nothing contained in this section shall be construed to apply to
    the exhibition, presentation, showing or performance of any play,
    ballet, drama, tableau, production or motion picture in any theater,
    concert hall, museum of fine arts, school, institution of higher
    learning or other similar establishment which is primarily devoted
    to such exhibitions, presentations, shows or performances as a
    form of expression of opinion, communication, speech, ideas,
    information, art or drama.
    Henrico County Code § 13-107. In contrast, the ordinances at issue in Barnes and Pap’s A.M.
    were flat bans on all public nudity and specifically required dancers to wear G-strings and
    pasties. Barnes, 
    501 U.S. at 563
    ; Pap’s A.M., 
    529 U.S. at 284
    .
    The ordinance here, like the statute in Barnes, is on its face a
    general prohibition on public nudity. By its terms, the ordinance
    regulates conduct alone. It does not target nudity that contains an
    erotic message; rather, it bans all public nudity, regardless of
    whether that nudity is accompanied by expressive activity.
    Pap’s A.M., 
    529 U.S. at 290
    . Furthermore, the ordinance in Pap’s A.M. specifically included
    theaters and dance halls. Thus, they satisfied the third prong of the O’Brien test, because they
    were directed solely at conduct without reference to expression.20
    In the instant cases, subsection (c) of the ordinance creates certain exemptions for nude
    performances, including those performed in theaters. The Commonwealth’s Attorney stated that
    he did not believe Gold City fell within subsection (c) based on his opinion of the content of the
    performances at Gold City. This express reference to content brings the County’s enforcement
    20
    While the majority argues that the outcome of the instant case is controlled by Wayside
    Rest., Inc. v. City of Virginia Beach, 
    215 Va. 231
    , 
    208 S.E.2d 51
     (1974), I disagree. Wayside
    was decided over twenty years before the United States Supreme Court’s decisions in Barnes and
    Pap’s A.M. Additionally, because this dissent is grounded in a selective enforcement analysis
    only, I do not address appellants’ broader constitutional challenges. As the Supreme Court stated
    in Wayside, “[W]e reserve decision to another day, upon full and adequate record, on any
    concrete problems of constitutional dimension under the First Amendment which might arise
    from future application of the ordinance.” Id. at 236, 208 S.E.2d at 55. They did not, in that
    case, reach this issue.
    - 30 -
    of the ordinance into the realm of First Amendment protections because those enforcing the
    ordinance must make content-based distinctions. See, e.g., Texas v. Johnson, 
    491 U.S. 397
    , 414
    (1989) (“If there is a bedrock principle underlying the First Amendment, it is that the
    government may not prohibit the expression of an idea simply because society finds the idea
    itself offensive or disagreeable.”); Iota Xi v. George Mason University, 
    993 F.2d 386
     (4th Cir.
    1993) (an exception for theatrical productions cannot be limited “to protect only a narrow and
    limited category of professionally produced plays” rather, even “crude and amateurish and
    perhaps unappealing” performances “come within the First Amendment’s reach”); see also
    Barnes, 
    501 U.S. at 594
     (“While the entertainment afforded by a nude ballet at Lincoln Center to
    those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as
    viewed by critics), it may not differ in substance from the dance viewed by the person who wants
    some ‘entertainment’ with his beer or shot of rye.”) (White, J. dissenting).
    As applied by the County in the instant cases, the ordinance delineates a type of
    expressive conduct permitted under limited circumstances and bans other types of expressive
    conduct that fall within the First Amendment’s protection, albeit on the “outer limits” of such
    protection. The County argues that the exemption in subsection (c) is a “time, place and
    manner” regulation. Although this argument has appeal, given the express limitations on venue,
    the County’s enforcement in these cases does not satisfy the “alternative avenues of
    communication” requirement for time, place and manner regulations. City of Renton v. Playtime
    Theatres, Inc., 
    475 U.S. 41
    , 47 (1986).21 The County’s application of the ordinance does not
    provide for an alternative venue within the County to convey the “erotic message,” as required
    by the United States Supreme Court.
    21
    In addition, “time, place and manner” regulations must also be content-neutral and
    narrowly tailored. See Ward v. Rock Against Racism, 
    491 U.S. 781
     (1989).
    - 31 -
    The fourth prong of O’Brien requires “the incidental restriction on alleged First
    Amendment freedoms [be] no greater than is essential to the furtherance of that interest.”
    O’Brien, 
    391 U.S. at 377
    . This prong highlights another important distinction between the
    instant cases and Barnes and Pap’s A.M. In the latter, exotic dancing in pasties and G-strings
    was permitted; however, the dancers sought instead to dance completely nude. In upholding the
    ordinances in both cases, the Court held that “any incidental impact on the expressive element of
    nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a
    minimal restriction in furtherance of the asserted government interests, and the restriction leaves
    ample capacity to convey the dancer’s erotic message.” Pap’s A.M., 
    529 U.S. at 301
    ; see also
    Barnes, 
    501 U.S. at 572
     (“requirement that the dancers wear at least pasties and G-strings is
    modest, and the bare minimum necessary to achieve the State’s purpose”).
    In the instant cases, the legislative intent underlying the ordinance was to prevent
    urinating in public and similar problems. The County conceded that exotic dancing was not the
    activity it sought to regulate when the ordinance was adopted. Viewed in the context of its
    legislative history, the ordinance as applied is not narrowly drawn so that the incidental
    restriction on the expressive conduct at issue is no greater than is essential to prevent or deter
    public urination, “mooning” or skinny dipping.
    In summary, I agree with the U.S. District Court’s reasoning that
    [T]he Supreme Court of the United States views nude dancing [as]
    expressive conduct that is entitled to some quantum of protection
    under the First Amendment. Hence, though the subject matter here
    is, as the Plaintiffs admit, mundane, it involves a well-settled right
    under the First Amendment. The exercise of that right may be
    circumscribed by local law, but the law, as applied, must allow the
    conduct permitted by the First Amendment. The law, of course,
    must clearly define the proscribed conduct and must be enforced
    equally, and not arbitrarily or capriciously, when it is applicable.
    When measured against these precepts, the Ordinance is
    troublesome. On its face, as admitted by the Commonwealth’s
    Attorney, the Ordinance would make it unlawful for a mother to
    - 32 -
    nurse her child in public, conduct that often occurs in today’s
    society and that is widely accepted. It, by admission of the
    Commonwealth’s Attorney, would prohibit the wearing of bathing
    suits commonly sold in the County and worn at its public pools and
    at private clubs, though the Ordinance would not necessarily be
    enforced against each technical violation. Though admitting that
    both were technically violative of the Ordinance, the
    Commonwealth’s Attorney would permit Jennifer Lopez to wear
    one famously revealing dress, but prohibit her from wearing
    another as to which it is difficult to discern a difference. Some of
    these violations would be prosecuted; others would not.
    The Ordinance contains a provision, section (c), that permits the
    very conduct engaged in by and at Gold City to be performed in a
    different, but nonetheless public, venue. Mr. Kizer testified that,
    while a ballet at a dance hall, featuring completely nude dancers
    for the duration of the performance, would not be prohibited by the
    Ordinance, dancing in pasties and G-strings on the stage at Gold
    City does not fall under the exception. Section (c) has serious
    exposure to constitutional challenge as to its application, especially
    in perspective of Mr. Kizer’s testimony that the content of
    constitutionally protected expressive conduct plays a role in
    assessing whether that conduct violates the Ordinance.
    Colonial First Properties, 
    166 F. Supp. 2d at 1090
    .
    I would reverse the judgment of the trial court and dismiss the convictions.
    - 33 -
    Tuesday                22nd
    July, 2003.
    Sharon C. Boyd,                                                                         Appellant,
    against              Record No. 0377-02-2
    Circuit Court Nos. CR01-3510-00-M and
    CR01-3511-00-M
    County of Henrico,                                                                      Appellee.
    Dianna Lee White,                                                                       Appellant,
    against              Record No. 0380-02-2
    Circuit Court No. CR01-3519-00-M
    County of Henrico,                                                                      Appellee.
    Donna Jean White,                                                                       Appellant,
    against              Record No. 0381-02-2
    Circuit Court No. CR01-3520-00-M
    County of Henrico,                                                                      Appellee.
    Upon a Petition for Rehearing En Banc
    Before Judges Benton, Elder, Annunziata, Bumgardner, Frank, Humphreys, Clements, Felton,
    Kelsey and McClanahan
    On June 23, 2003 came the appellee, by counsel, and filed a petition praying that
    the Court set aside the judgment rendered herein on June 10, 2003, and grant a rehearing en banc
    thereof.
    On consideration whereof, the petition for rehearing en banc is granted, the
    mandate entered herein on June 10, 2003 is
    - 34 -
    stayed pending the decision of the Court en banc, and the appeal is reinstated on the docket of
    this Court.
    The parties shall file briefs in compliance with Rule 5A:35. The appellee shall
    attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion
    previously rendered by the Court in this matter. It is further ordered that the appellee
    shall file with the clerk of this Court fourteen additional copies of the appendix previously filed
    in this case.
    A Copy,
    Teste:
    Cynthia L. McCoy, Clerk
    By:
    Deputy Clerk
    -35-
    COURT OF APPEALS OF VIRGINIA
    Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
    Argued at Richmond, Virginia
    SHARON C. BOYD
    v.     Record No. 0377-02-2
    COUNTY OF HENRICO
    DIANNA LEE WHITE
    OPINION BY
    v.     Record No. 0380-02-2                            CHIEF JUDGE JOHANNA L. FITZPATRICK
    JUNE 10, 2003
    COUNTY OF HENRICO
    DONNA JEAN WHITE
    v.     Record No. 0381-02-2
    COUNTY OF HENRICO
    FROM THE CIRCUIT COURT OF HENRICO COUNTY
    George F. Tidey, Judge
    C. David Whaley (Anthony G. Spencer; Morchower, Luxton &
    Whaley, on briefs), for appellants.
    Michael V. Gerrard, Deputy Commonwealth's Attorney, for
    appellee.
    Appellant Sharon Boyd (Boyd) was convicted in a bench trial of two counts of public
    nudity, and appellants Donna White and Dianna White were convicted of aiding and abetting
    public nudity, in violation of Henrico County Code § 13-107. Appellants contend that Henrico
    County Code § 13-107, the public nudity ordinance (hereinafter "ordinance"): (1) is
    unconstitutional both facially and as applied to them; (2) violates the enabling statute; and (3)
    -36-
    that the evidence was insufficient to support the convictions. For the reasons that follow, we
    reverse the judgment of the trial court.
    I. Factual Background
    The facts are undisputed. On July 6, 2001 plainclothes officers from the Henrico County
    Police Department went to Gold City Showgirls (Gold City), a "restaurant and bar," which had
    just opened for business. The officers paid a cover charge, showed identification and entered the
    bar area, where they stayed for approximately ninety minutes. During that time, the officers saw
    ten women strip to "pasties" and G-strings. The officers left the bar, retrieved their summons
    books and badges and returned to issue summonses to the first ten dancers, including Boyd, and
    the club manager, Donna White, for violating the ordinance.22 While the officers issued the
    summonses, other women continued dancing. Although these other dancers were not among the
    ten dancers cited for violating the ordinance, they were warned to comply with the ordinance and
    were told they would be cited if they failed to do so. On July 8, 2001 the police observed the
    same type of dancing and dress and again issued summonses for violations of the ordinance to
    Boyd and Dianna White, who was the manager on duty.
    Appellants were tried and convicted in the Henrico County General District Court. On
    appeal to the Henrico County Circuit Court appellants argued that the ordinance was
    unconstitutional, both facially and as applied in this case. As part of the stipulated evidence, the
    Commonwealth and the appellants agreed that the transcript of evidence presented in a parallel
    22
    Henrico County Code § 13-107 makes it a misdemeanor to:
    expose the human male or female genitals, pubic area or buttocks
    or to cover any of them with less than a fully opaque covering, or
    the showing of the female breast or any portion thereof below the
    top of the nipple, or covering of the breast or any portion thereof
    below the top of the nipple with less than a fully opaque covering.
    Henrico County Code § 13-107(a).
    -37-
    case in the United States District Court in Richmond would be admitted as evidence in the
    instant cases.23 The Commonwealth's Attorney conceded before the U.S. District Court that he
    would not prosecute people wearing "contemporary swimwear" or "short-shorts," despite the fact
    that those items would be in "technical" violation of the statute. He also stated that he pursued
    the instant prosecutions based "primarily" on his opinion of the content of the performances at
    Gold City.
    The trial court rejected appellants' constitutional challenges and heard the cases on the
    merits. Appellants admitted the dancers wore "pasties" and G-strings on July 6 and July 8, 2001.
    They argued, however, that they were not liable under the ordinance because Gold City fell
    within the ordinance's "theater" exception.24 The trial court found that Gold City "[was] not a
    theater" and that the performance was not "a theatrical performance either." Boyd was convicted
    of two counts of public nudity and sentenced to a fine of $125, plus costs. Appellants Donna
    White and Dianna White were each convicted of aiding and abetting public nudity and sentenced
    23
    See Colonial First Properties, LLC v. Henrico County Virginia, 
    166 F. Supp. 2d 1071
    (E.D. Va. 2001). In the federal case, some of the owners of Gold City challenged the
    constitutional validity of the ordinance and sought injunctive relief. There is an extensive
    discussion of the background surrounding the licensure and opening of Gold City in the federal
    court's opinion. While the federal court found the ordinance "troublesome," it abstained from
    deciding the constitutional question to give Virginia courts an opportunity to resolve the matter.
    See 
    id.
    24
    Under the ordinance, there is an exception for theatrical and dramatic performances.
    Nothing contained in this section shall be construed to apply to the
    exhibition, presentation, showing or performance of any play,
    ballet, drama, tableau, production or motion picture in any theater,
    concert hall, museum of fine arts, school, institution of higher
    learning or other similar establishment which is primarily devoted
    to such exhibitions, presentations, shows or performances as a
    form of expression of opinion, communication, speech, ideas,
    information, art or drama.
    Henrico County Code § 13-107(c).
    -38-
    to 10 days in jail, with 10 days suspended, and fined $500, with $250 suspended, and costs of
    $61. Appellants now challenge those convictions.
    II. Constitutionality of the Public Nudity Ordinance
    Appellants contend that the ordinance is unconstitutional both on its face and as applied
    in these cases because it violates their First Amendment rights to free speech and association.
    Since we decide this case on the basis of the content-based selective enforcement, we do not
    address the facial challenge to the ordinance or appellants' other assignments of error.25
    "Two conflicting rights are involved in [these] appeal[s]: (1) the right to free, individual
    self-expression, and (2) a government's right to enact legislation for the safety and welfare of its
    citizens." Adams Outdoor Adv. v. City of Newport News, 
    236 Va. 370
    , 381, 
    373 S.E.2d 917
    ,
    922 (1988).
    The First Amendment of the Constitution provides: "Congress
    shall make no law abridging the freedom of speech." This freedom
    is among the fundamental personal rights and liberties which are
    protected by the Fourteenth Amendment from invasion by state
    action; and municipal ordinances adopted under state authority
    constitute state action.
    Staub v. City of Baxley, 
    355 U.S. 313
    , 321 (1958). "[T]he First Amendment needs breathing
    space[;] . . . statutes attempting to restrict or burden the exercise of First Amendment rights must
    be narrowly drawn and represent a considered legislative judgment that a particular mode of
    expression has to give way to other compelling needs of society." Broadrick v. Oklahoma, 
    413 U.S. 601
    , 611-12 (1973). "In assessing the constitutionality of a statute, we must presume that
    the legislative action is valid. The burden is on the challenger to prove the alleged constitutional
    defect." Woolfolk v. Commonwealth, 
    18 Va. App. 840
    , 848, 
    447 S.E.2d 530
    , 534 (1994).
    25
    Appellants' additional assignments of error were that the ordinance is facially invalid,
    that it violates the enabling statute and that the evidence was insufficient to support the
    convictions.
    -39-
    Vagueness and Lack of Fair Notice
    As applied to them, appellants contend the ordinance violates the First Amendment
    because it is unconstitutionally vague, and it impermissibly regulates content.26 We agree.
    "Vagueness may invalidate a criminal law for either of two independent reasons. First, it
    may fail to provide the kind of notice that will enable ordinary people to understand what
    conduct it prohibits; second, it may authorize and even encourage arbitrary and discriminatory
    enforcement." Chicago v. Morales, 
    527 U.S. 41
    , 56 (1999). While the County can regulate the
    conduct involved here, it "must clearly define the proscribed conduct and must . . . enforce[ ] [the
    ordinance] equally, and not arbitrarily or capriciously, when it is applicable." Colonial First
    Properties, LLC v. Henrico County Virginia, 
    166 F. Supp. 2d 1071
    , 1090 (E.D. Va. 2001).
    "It is a basic principle of due process that an enactment is [unconstitutional] if its
    prohibitions are not clearly defined." Grayned v. City of Rockford, 
    408 U.S. 104
    , 108 (1972).
    "[W]e 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." 
    Id.
    The record proves that the County failed to give Gold City "a reasonable opportunity to
    know what is prohibited" under the ordinance. The Commonwealth's Attorney conceded that he
    would not prosecute people wearing "contemporary swimwear" or "short-shorts," although these
    items fall within the limitations of the ordinance. Moreover, the Commonwealth's Attorney
    agreed that breast feeding in public would be a violation of the ordinance.27 Therefore, prior to
    26
    Appellants assert several additional constitutional arguments, including that the
    ordinance constitutes a regulatory taking. However, these arguments were not raised in the trial
    court, and the ends of justice do not compel us to address them for the first time on appeal.
    Those arguments are, therefore, waived. Rule 5A:18.
    27
    The County correctly notes that breast feeding is statutorily exempted from the
    indecent exposure statute, so no prosecution could follow under state Code § 18.2-387.
    -40-
    this prosecution, there was no way for appellants to determine what clothing would put them in
    violation of the ordinance. Indeed, although the County was aware of Gold City's proposed
    format, the County never gave appellants any advance warning that their conduct would
    constitute a violation of the ordinance.28
    The evidence adduced at the federal court hearing showed the events leading up to the
    opening of Gold City and the issuing of summonses on July 6 and July 8 to be as follows:
    (1)   a week before Gold City opened for business, Gold City
    informed some of the County's highest-ranking officials of
    the mode of dancing ("pasties and Gstring" [sic]) to be
    performed; (2) at the same time Gold City explained to those
    officials the view that Gold City was covered by an
    exception to the Ordinance; (3) the Acting Chief of Police
    represented that he was uncertain about the matter, but
    would look into it; (4) he [did] so; (5) the same afternoon,
    the County Attorney and the Commonwealth's Attorney and
    the Acting Chief of Police had concluded that Gold City: (a)
    was wrong in its interpretation of the Ordinance; (b) the
    mode of dancing Gold City would use was in violation of the
    Ordinance; and (6) the County never informed Gold City of
    these views.
    Colonial First Properties, 
    166 F. Supp. 2d at 1082
    . "Remarkably, and for reasons neither
    expressed nor readily apparent, Gold City was not notified that the County's executives and law
    enforcement officials had determined that Gold City's proposed operational format violated the
    Ordinance." 
    Id. at 1074
    .
    Furthermore, the record indicates that neither the Commonwealth's Attorney nor the
    police were able to clearly delineate what would constitute a violation of the ordinance or at least
    what they would prosecute as a violation. During cross-examination, one officer stated that he
    Nevertheless, breast feeding would be what the Commonwealth's Attorney described as a
    "technical" violation of the county ordinance.
    28
    There is a discussion of this issue in the federal court opinion; the federal judge found
    the County's actions in this regard "unreasonable, unbecoming of government and unfair."
    Colonial First Properties, 
    166 F. Supp. 2d at 1082
    .
    -41-
    would have to see a particular item of clothing before he could state whether it would be in
    violation of the ordinance and that the determination would be made on "a case-by-case basis."
    Another officer testified that liability under the ordinance would depend on "what type of
    G-string [a person] was wearing." Thus, the application of the ordinance did not clearly define
    the proscribed conduct and vested total discretion in the hands of those charged with enforcing it.
    Appellants did not have "a reasonable opportunity to know what [conduct was] prohibited" prior
    to the police issuing summonses on July 6, 2001. Grayned, 408 U.S. at 108.
    Arbitrary Enforcement
    The facts adduced at trial, including the incorporated testimony from the federal hearing,
    clearly prove that the ordinance violates "the requirement that a legislature establish minimal
    guidelines to govern law enforcement." Kolender v. Lawson, 
    461 U.S. 352
    , 358 (1983). The
    Commonwealth's Attorney conceded that he would not prosecute "technical" violations of the
    ordinance. He did not, however, state how he would distinguish between a "technical" violation
    and those before the trial court. Instead, he conceded that the prosecutions at issue here were
    driven by his opinion of the content of the performances at Gold City. Essentially, the County
    prosecutors and law enforcement personnel exercised their own discretion "on an ad hoc and
    subjective basis." Grayned, 
    408 U.S. at 109
    . As appellants noted in the trial court, "the
    [ordinance] says one thing. [The Commonwealth is] going to prosecute something else."
    Lastly, one of the officers stated that while they were issuing summonses, other Gold
    City dancers who were in violation of the ordinance continued to perform, but were not cited.
    Rather than continuing to issue summonses, the officer "just brought it to Ms. White's attention
    that the way they were dressed they were still in violation and that she had to bring them into
    compliance." Hence, we conclude there was selective enforcement of the ordinance both as to
    Gold City generally and with respect to particular dancers in Gold City. "A vague law
    -42-
    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." Grayned, 408 U.S at 108-09.
    Content-based Regulation
    "To safeguard free speech, the Supreme Court requires that a regulatory measure be
    content neutral. The doctrine of content neutrality provides that governmental regulations may
    not 'restrict expression because of its message, its ideas, its subject matter, or its content.'"
    Adams Outdoor Adv., 236 Va. at 381, 
    373 S.E.2d at
    922 (citing Police Dept. of City of Chicago
    v. Mosley, 
    408 U.S. 92
    , 95 (1972)).
    The Commonwealth's Attorney conceded that the prosecutions in these cases were based
    "primarily" upon his opinion of the content of the performances. This focus on the content of
    appellants' conduct at Gold City renders the County's application of the ordinance in these cases
    unconstitutional.
    "[N]ude [or semi-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." Barnes v. Glen Theater, Inc., 
    501 U.S. 560
    , 566 (1991). Accordingly,
    "government restrictions on public nudity such as the ordinance at issue here should be evaluated
    under the framework set forth in [United States v.] O'Brien[, 
    391 U.S. 367
     (1968),] for
    content-neutral restrictions on symbolic speech." Erie v. Pap's A. M., 
    529 U.S. 277
    , 289 (2000).
    That test provides that
    a government regulation is sufficiently justified if it is within the
    constitutional power of the Government; if it furthers an important
    or substantial governmental interest; if the governmental interest is
    unrelated to the suppression of free expression; and if the
    incidental restriction on alleged First Amendment freedoms is no
    greater than is essential to the furtherance of that interest.
    -43-
    O'Brien, 
    391 U.S. at 377
    . Appellants conceded at trial that the County "surely" has the authority
    to enact the ordinance. Thus, the first prong in O'Brien is met. Appellants argue, however, that
    the ordinance does not further a substantial government interest; it is impermissibly related to the
    suppression of protected expressive conduct, namely erotic dancing; and that it is not sufficiently
    narrowly tailored to satisfy O'Brien.
    The second part of the O'Brien test requires that the ordinance further a substantial
    government interest.
    Public indecency statutes of this sort are of ancient origin, and
    presently exist in at least 47 States. Public indecency, including
    nudity, was a criminal offense at common law, and . . . considered
    an act malum en se. Public indecency statutes such as the one
    before us reflect moral disapproval of people appearing in the nude
    among strangers in public places.
    Barnes, 
    501 U.S. at 568
     (internal citations and quotations omitted). "This and other public
    indecency statutes were designed to protect morals and public order. The traditional police
    power of the States is defined as the authority to provide for the public health, safety, and morals,
    and [courts] have upheld such a basis for legislation." 
    Id. at 569
    . We believe the Barnes analysis
    applies with equal force in the instant cases. The ordinance "furthers a substantial government
    interest in protecting order and morality." 
    Id.
     Therefore, the ordinance satisfies O'Brien's
    second requirement.
    Under the third prong of O'Brien "the governmental interest must be unrelated to the
    suppression of free expression." Barnes, 
    501 U.S. at 570
    . Although the purpose for which the
    ordinance was adopted satisfies this requirement, the application of the ordinance in these cases
    is problematic. Henrico County adopted the ordinance in 1982 to combat the problems of public
    -44-
    urination, exposure of the buttocks (i.e., "mooning") and skinny dipping.29 The ordinance
    provides:
    (a) As used in this section, the term "state of nudity" means a state
    of undress so as to expose the human male or female genitals,
    pubic area or buttocks or to cover any of them with less than a
    fully opaque covering, or the showing of the female breast or any
    portion thereof below the top of the nipple, or covering of the
    breast or any portion thereof below the top of the nipple with less
    than a fully opaque covering.
    (b) Every person who knowingly, voluntarily and intentionally
    appears in public or in a public place or in a place open to the
    public or open to public view in a state of nudity, or employs,
    encourages or procures another person so to appear, shall be guilty
    of a misdemeanor punishable by confinement in jail for not more
    than six months or a fine of not more than $500.00, or both.
    (c) Nothing contained in this section shall be construed to apply to
    the exhibition, presentation, showing or performance of any play,
    ballet, drama, tableau, production or motion picture in any theater,
    concert hall, museum of fine arts, school, institution of higher
    learning or other similar establishment which is primarily devoted
    to such exhibitions, presentations, shows or performances as a
    form of expression of opinion, communication, speech, ideas,
    information, art or drama.
    Henrico County Code § 13-107. In contrast, the ordinances at issue in Barnes and Pap's A. M.
    were flat bans on all public nudity and specifically required dancers to wear G-strings and
    pasties. Barnes, 
    501 U.S. at 563
    ; Pap's A. M., 
    529 U.S. at 284
    .
    The ordinance here, like the statute in Barnes, is on its face a
    general prohibition on public nudity. By its terms, the ordinance
    regulates conduct alone. It does not target nudity that contains an
    erotic message; rather, it bans all public nudity, regardless of
    whether that nudity is accompanied by expressive activity.
    29
    Included in the record are 1982 staff memoranda from the Henrico County police
    discussing the need for an ordinance to prosecute "urinating or defecating in public, swimming in
    the nude in public, exposing one's buttocks (mooning) in public, or generally being nude in
    public." Inter-Office Memorandum from Lieutenant C.S. McCray, Platoon A, Henrico County
    Police Department, to Chief of Police (July 8, 1982). Another member of the police force noted
    that "we do need some type of ordinance to control urinating in public." Inter-Office
    Memorandum from Colonel L.T. Sheppard, Henrico County Police Department, to
    Commonwealth's Attorney and County Attorney (July 12, 1982). The Henrico County Board of
    Supervisors unanimously approved the ordinance on September 8, 1982. Minutes, Henrico
    County, Virginia Board of Supervisors (Sept. 8, 1982).
    -45-
    Pap's A. M., 
    529 U.S. at 290
    . Furthermore, the ordinance in Pap's A. M. specifically included
    theaters and dance halls. Thus, they satisfied the third prong of the O'Brien test, because they
    were directed solely at conduct without reference to expression.
    In the instant cases, subsection (c) of the ordinance creates certain exemptions for nude
    performances, including those performed in theaters. The Commonwealth's Attorney stated that
    he did not believe Gold City fell within subsection (c) based on his opinion of the content of the
    performances at Gold City. This express reference to content brings the County's enforcement of
    the ordinance into the realm of First Amendment protections because those enforcing the
    ordinance must make content-based distinctions. See, e.g., Texas v. Johnson, 
    491 U.S. 397
    , 414
    (1989) ("If there is a bedrock principle underlying the First Amendment, it is that the
    government may not prohibit the expression of an idea simply because society finds the idea
    itself offensive or disagreeable."); Iota Xi v. George Mason University, 
    993 F.2d 386
    , 390 (4th
    Cir. 1993) (an exception for theatrical productions cannot be limited "to protect only a narrow
    and limited category of professionally produced plays" rather, even "crude and amateurish and
    perhaps unappealing" performances "come within the First Amendment's reach"); see also
    Barnes, 
    501 U.S. at 594
     ("While the entertainment afforded by a nude ballet at Lincoln Center to
    those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as
    viewed by critics), it may not differ in substance from the dance viewed by the person who wants
    some 'entertainment' with his beer or shot of rye.") (White, J. dissenting).
    As applied by the County in the instant cases, the ordinance delineates a type of
    expressive conduct permitted under limited circumstances and bans other types of expressive
    conduct that fall within the First Amendment's protection, albeit on the "outer limits" of such
    protection. The County argues that the exemption in subsection (c) is a "time, place and manner"
    regulation. Although this argument has appeal, given the express limitations on venue, the
    -46-
    County's enforcement in these cases does not satisfy the "alternative avenues of communication"
    requirement for time, place and manner regulations. City of Renton v. Playtime Theatres, Inc.,
    
    475 U.S. 41
    , 47 (1986).30 The County's application of the ordinance does not provide for an
    alternative venue within the County to convey the "erotic message," as required by the United
    States Supreme Court.
    The fourth prong of O'Brien requires "the incidental restriction on alleged First
    Amendment freedoms [be] no greater than is essential to the furtherance of that interest."
    O'Brien, 
    391 U.S. at 377
    . This prong highlights another important distinction between the
    instant cases and Barnes and Pap's A. M. In the latter, exotic dancing in pasties and G-strings
    was permitted; however, the dancers sought instead to dance completely nude. In upholding the
    ordinances in both cases, the Court held that "any incidental impact on the expressive element of
    nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a
    minimal restriction in furtherance of the asserted government interests, and the restriction leaves
    ample capacity to convey the dancer's erotic message." Pap's A. M., 
    529 U.S. at 301
    ; see also
    Barnes, 
    501 U.S. at 572
     ("requirement that the dancers wear at least pasties and G-strings is
    modest, and the bare minimum necessary to achieve the State's purpose").
    In the instant cases, the legislative intent underlying the ordinance was to prevent
    urinating in public and similar problems. The County conceded that exotic dancing was not the
    activity it sought to regulate when the ordinance was adopted. Viewed in the context of its
    legislative history, the ordinance as applied is not narrowly drawn so that the incidental
    restriction on the expressive conduct at issue is no greater than is essential to prevent or deter
    public urination, "mooning" or skinny dipping.
    30
    In addition, "time, place and manner" regulations must also be content-neutral and
    narrowly tailored. See Ward v. Rock Against Racism, 
    491 U.S. 781
     (1989).
    -47-
    In summary, we agree with the U.S. District Court's reasoning that
    [T]he Supreme Court of the United States views nude dancing [as]
    expressive conduct that is entitled to some quantum of protection
    under the First Amendment. Hence, though the subject matter here
    is, as the Plaintiffs admit, mundane, it involves a well-settled right
    under the First Amendment. The exercise of that right may be
    circumscribed by local law, but the law, as applied, must allow the
    conduct permitted by the First Amendment. The law, of course,
    must clearly define the proscribed conduct and must be enforced
    equally, and not arbitrarily or capriciously, when it is applicable.
    When measured against these precepts, the Ordinance is
    troublesome. On its face, as admitted by the Commonwealth's
    Attorney, the Ordinance would make it unlawful for a mother to
    nurse her child in public, conduct that often occurs in today's
    society and that is widely accepted. It, by admission of the
    Commonwealth's Attorney, would prohibit the wearing of bathing
    suits commonly sold in the County and worn at its public pools and
    at private clubs, though the Ordinance would not necessarily be
    enforced against each technical violation. Though admitting that
    both were technically violative of the Ordinance, the
    Commonwealth's Attorney would permit Jennifer Lopez to wear
    one famously revealing dress, but prohibit her from wearing
    another as to which it is difficult to discern a difference. Some of
    these violations would be prosecuted; others would not.
    The Ordinance contains a provision, section (c), that permits the
    very conduct engaged in by and at Gold City to be performed in a
    different, but nonetheless public, venue. Mr. Kizer testified that,
    while a ballet at a dance hall, featuring completely nude dancers
    for the duration of the performance, would not be prohibited by the
    Ordinance, dancing in pasties and G-strings on the stage at Gold
    City does not fall under the exception. Section (c) has serious
    exposure to constitutional challenge as to its application, especially
    in perspective of Mr. Kizer's testimony that the content of
    constitutionally protected expressive conduct plays a role in
    assessing whether that conduct violates the Ordinance.
    Colonial First Properties, 
    166 F. Supp. 2d at 1090
    .
    The judgment of the trial court is reversed, and the convictions are dismissed.
    Reversed and dismissed.
    -48-
    Kelsey, J., dissenting.
    Statutes prohibiting public nudity are of "ancient origin" and "reflect moral disapproval of
    people appearing in the nude among strangers in public places." Barnes v. Glen Theatre, Inc., 
    501 U.S. 560
    , 568 (1991). Because the law is "constantly based on notions of morality," 
    id. at 569
    (quoting Bowers v. Hardwick, 
    478 U.S. 186
    , 196 (1986)), courts should not invalidate a law
    "representing essentially moral choices," 
    id.,
     unless it contravenes clearly defined constitutional
    boundaries. No such boundaries have been transgressed in this case.
    It has been the traditional view that whatever natural law construct exists to support the
    "right to appear au naturel at home," that right is "relinquished when one sets foot outside."
    Richards v. Thurston, 
    424 F.2d 1281
    , 1285 (1st Cir. 1970).31 Even so, in the "outer ambit" of
    constitutional theory, the erotic speech component of a particular form of public nakedness ——
    nude dancing at strip clubs —— receives "some measure" of First Amendment protection. Erie v.
    Pap's A.M., 
    529 U.S. 277
    , 285, 289 (2000); see also Barnes, 
    501 U.S. at 566
    . The right, however, is
    hardly a robust one. At best, it receives a "diminished form of protection under the First
    Amendment," Ben's Bar, Inc. v. Village of Somerset, 
    316 F.3d 702
    , 707 (7th Cir. 2003), because it
    involves the "barest minimum of protected expression," Barnes, 
    501 U.S. at 565
    . Put another way,
    the right is only "marginally" within the "outer perimeters" of the First Amendment. Barnes, 
    501 U.S. at 566
    .
    31
    See also United States v. Biocic, 
    928 F.2d 112
    , 116 (4th Cir. 1991) (finding no right to
    public nudity under "the profound rights of personhood and privacy"); Chapin v. Southampton,
    
    457 F. Supp. 1170
    , 1174 (E.D.N.Y. 1978) ("It is undoubted that public nudity can be banned."
    (citation omitted)); State v. Ciancanelli, 
    45 P.3d 451
    , 455 (Or. 2002) (surveying historical
    disdain toward public nudity); Lacour v. State, 
    21 S.W.3d 794
    , 796 (Tex. App. 2000)
    (recognizing public nudity as "merely conduct; not expressive conduct"); Tri-State Metro
    Naturists v. Lower, 
    529 A.2d 1047
    , 1050-53 (N.J. Super. Ct. Law Div. 1987) (recognizing that
    no right to appear nude in public exists under the First, Fifth, or Fourteenth Amendments);
    People v. Hollman, 
    500 N.E.2d 297
    , 301 (N.Y. 1986) ("prohibiting public nudity is plainly
    within the State's police powers").
    -49-
    In my opinion, none of the three constitutional attacks on Henrico's public nudity ordinance
    (content-based regulation of speech, vagueness, or selective prosecution) accepted by the majority
    can survive scrutiny under existing precedent. As Erie and Barnes confirm, the content-based
    challenge fails because Henrico's public nudity ordinance regulates conduct, not the content of
    anyone's speech. Any incidental impact on the erotic speech component falls far short of rendering
    the ordinance unconstitutional. The vagueness claim cannot succeed because the Virginia Supreme
    Court rebuffed a similar challenge to a nearly identical public nudity ban in Wayside Rest., Inc. v.
    Virginia Beach, 
    215 Va. 231
    , 236, 
    208 S.E.2d 51
    , 55 (1974), and no intervening precedent between
    then and now has called that judgment into question. Finally, the selective prosecution assertion
    does not satisfy the threshold requirements for such a claim.
    That all legislative acts are "presumed to be constitutional" is more than a mere judicial
    aphorism. Bosang v. Iron Belt Bldg. & Loan Ass'n, 
    96 Va. 119
    , 123, 
    30 S.E. 440
    , 441 (1898); see
    also In re Phillips, 
    265 Va. 81
    , 85, 
    574 S.E.2d 270
    , 272 (2003). This presumption is "one of the
    strongest known to the law." Black v. Commonwealth, 
    262 Va. 764
    , 786, 
    553 S.E.2d 738
    , 751
    (2001). Under it, courts must "resolve any reasonable doubt" regarding the constitutionality of a
    law in favor of its validity. In re Phillips, 
    265 Va. at 85
    , 
    574 S.E.2d at 272
    ; see also Wayside Rest.,
    Inc., 
    215 Va. at 236
    , 208 S.E.2d at 55 (holding public nudity ordinance constitutional).
    I will address the appellants' arguments in a different order than the majority because
    resolution of the first claim, which asserts the Henrico public nudity ordinance constitutes a
    content-based regulation of speech, directly impacts the remaining void-for-vagueness and selective
    prosecution claims.
    -50-
    I.
    Content-Based Regulation
    Laws that "by their terms distinguish favored speech from disfavored speech on the basis
    of the ideas or views expressed are content based." Bartnicki v. Vopper, 
    532 U.S. 514
    , 526
    (2001) (quoting Turner Broad. System, Inc. v. FCC, 
    512 U.S. 622
    , 642-643 (1994)). Content-
    based regulations on speech can withstand a constitutional challenge only by satisfying "the most
    exacting scrutiny." Turner Broad. System, Inc., 
    512 U.S. at 641-42
    ; see also Republican Party of
    Minnesota v. White, 
    536 U.S. 765
    , 774-75 (2002); Los Angeles v. Alameda Books, Inc., 
    535 U.S. 425
    , 434 (2002) (plurality).
    A law regulating expressive activity should be deemed content neutral "so long as it is
    'justified without reference to the content of the regulated speech.'" Ward v. Rock Against
    Racism, 
    491 U.S. 781
    , 791 (1989) (emphasis in original and citation omitted). Because such
    regulations are "unrelated to the suppression of expression," Lorillard Tobacco Co. v. Reilly, 
    533 U.S. 525
    , 567 (2001), they are subjected to a "less-rigorous analysis," Turner Broad. Sys. v.
    FCC, 
    520 U.S. 180
    , 213 (1997). Sufficient government interests justifying content neutral
    regulations include "preventing harmful secondary effects," Erie, 
    529 U.S. at 293
    , and
    "protecting order and morality," Barnes, 
    501 U.S. at 569
    , both classic expressions of state police
    powers.
    The Henrico public nudity ban regulates conduct —— not the content of anyone's
    speech. In this respect, the ordinance is no different from either of the two laws deemed content-
    neutral in Barnes and Erie. As the Supreme Court said in Erie:
    The ordinance here, like the statute in Barnes, is on its face a
    general prohibition on public nudity. By its terms, the ordinance
    regulates conduct alone. It does not target nudity that contains an
    -51-
    erotic message; rather, it bans all public nudity, regardless of
    whether that nudity is accompanied by expressive activity.
    Erie, 
    529 U.S. at 290
    . The same can be said of the Henrico ordinance.
    True, some may "view restricting nudity on moral grounds as necessarily related to
    expression." Barnes, 
    501 U.S. at 570
    . And, in an abstract sense, it is entirely fair to say that
    people "who go about in the nude in public may be expressing something about themselves by so
    doing." 
    Id.
     This point, however, proves too much. Taken to its logical limits, it obliterates any
    First Amendment distinctions between speech and conduct. A flasher in a public mall may
    genuinely intend to communicate a message —— whether erotic, neurotic, or both. But the
    communicative element in his conduct should receive no constitutional protection. Despite the
    libertarian traditions animating the First Amendment, we are not dealing here with protecting the
    societal value of "untrammeled political debate" and "few of us would march our sons and
    daughters off to war to preserve a citizen's right" to unlimited expression of public sexuality.
    Erie, 
    529 U.S. at 294
     (quoting Young v. American Mini Theatres, Inc., 
    427 U.S. 50
    , 70 (1976)).
    The majority takes no issue with Erie or Barnes, but instead seeks to distinguish them on
    the ground that the Henrico ordinance contains an exemption for artistic and theatric
    performances. The public nudity ban in Erie, the majority states, "specifically included theaters
    and dance halls." Ante, at 14. From there, the majority reasons that the artistic and theatrical
    nudity exemption in the Henrico ordinance transforms an otherwise permissible, content-neutral
    public nudity ban into a thinly disguised content-based restriction. I disagree.
    Despite the fact that the public nudity ban in Erie did not include an express exemption,
    the prosecutor in Erie stipulated that the ban did not apply to theatrical and artistic nudity.
    Making the same argument as the majority here, the dissent in Erie seized upon this stipulation:
    In an earlier proceeding in this case, the Court of Common Pleas
    asked Erie's counsel "what effect would this ordinance have on
    theater . . . productions such as Equus, Hair, O[h!] Calcutta[!]?
    -52-
    Under your ordinance would these things be prevented . . . ?"
    Counsel responded: "No, they wouldn't, Your Honor." App. 53.
    Indeed, as stipulated in the record, the city permitted a production
    of Equus to proceed without prosecution, even after the ordinance
    was in effect, and despite its awareness of the nudity involved in
    the production. . . . As presented to us, the ordinance is
    deliberately targeted at Kandyland's type of nude dancing (to the
    exclusion of plays like Equus), in terms of both its applicable
    scope and the city's enforcement.
    *       *       *       *      *       *       *
    Nor could it be contended that selective applicability by stipulated
    enforcement should be treated differently from selective
    applicability by statutory text. See Barnes, 
    501 U.S. at 574
     (Scalia,
    J., concurring in judgment) (selective enforcement may affect a
    law's generality). Were it otherwise, constitutional prohibitions
    could be circumvented with impunity.
    
    Id.
     at 328 n.12 (Stevens, J., dissenting). The plurality in Erie rejected this argument and
    acknowledged that its own analysis presupposed that the public nudity ban had "the effect of
    limiting one particular means of expressing the kind of erotic message being disseminated at
    Kandyland." Id. at 293.
    The same is true of the public nudity ban in Barnes. Notwithstanding the absence of any
    express exemption, the public nudity ban there had been construed by the state courts to exclude
    theatrical and artistic nudity.32 The Supreme Court acknowledged this limiting construction on
    the ordinance as a legitimate effort by the state courts to "save it from a facial overbreadth
    attack." Barnes, 
    501 U.S. at
    564 n.1. In his concurring opinion, Justice Scalia agreed:
    Respondents also contend that the statute, as interpreted, is not
    content-neutral in the expressive conduct to which it applies, since
    it allegedly does not apply to nudity in theatrical productions. See
    State v. Baysinger, 
    272 Ind. 236
    , 247, 
    397 N.E.2d 580
    , 587 (1979).
    32
    See Indiana v. Baysinger, 
    397 N.E.2d 580
    , 587 (Ind. 1979) (noting that it is
    "constitutionally required to tolerate or to allow some nudity as a part of some larger form of
    expression meriting protection" and, therefore, limiting the reach of the Indiana Public Indecency
    statute only to activities involving pure conduct containing no constitutionally protected
    expressive element); Glen Theatre, Inc. v. Pearson, 
    802 F.2d 287
    , 289 (7th Cir. 1986) (basing its
    rejection of the plaintiff's overbreadth claim on the limiting construction provided by Baysinger).
    -53-
    I am not sure that theater versus non-theater represents a
    distinction based on content, rather than format, but assuming that
    it does, the argument nonetheless fails for the reason the plurality
    describes, ante, at 564, n.1.
    
    Id.
     at 574 n.2.
    By including an express exemption for theatrical and artistic nudity, Henrico merely put
    in writing what was implicit in both the Erie and Barnes public nudity bans. The exemption in
    the Henrico ordinance does nothing more than ensure that the ordinance incidentally restricts the
    least amount of expressive conduct, and thus, protects the ordinance against an overbreadth
    challenge. See, e.g., Giovani Carandola, Ltd. v. Bason, 
    303 F.3d 507
    , 517-19 (4th Cir. 2002)
    (holding lack of any artistic and theater exemption raised overbreadth problems sufficient to
    warrant a preliminary injunction).
    In addition, the artistic and theatrical exemption reflects a legitimate recognition of the
    unique secondary effects associated with erotic clubs. "Establishments that purvey erotica, live
    or pictorial, tend to be tawdry, to be offensive to many people, and to attract a dubious,
    sometimes a disorderly, clientele." Blue Canary Corp. v. City of Milwaukee, 
    251 F.3d 1121
    ,
    1124 (7th Cir. 2001). The impact of erotic dancing and other sexually oriented businesses on the
    surrounding community is "all too real." Alameda Books, Inc., 
    535 U.S. at 444
     (Kennedy, J.,
    concurring).33
    A public nudity ban should be "properly evaluated as a content-neutral restriction
    because the interest in combating the secondary effects associated with those clubs is unrelated
    to the suppression of the erotic message conveyed by nude dancing." Erie, 
    529 U.S. at 296
    ; see
    33
    See Erie, 
    529 U.S. at 299
     (rejecting suggestion in dissenting opinion that municipality
    must develop "specific evidentiary record" on secondary effects); Giovani Carandola, Ltd., 
    303 F.3d at 514
     ("No record evidence supports this [secondary effects] claim. . . . Even though the
    Commission has submitted no direct evidence of legislative motive, we believe that precedent
    requires us to evaluate the challenged restrictions as content-neutral provisions aimed at
    secondary effects.").
    -54-
    also Clark v. City of Lakewood, 
    259 F.3d 996
    , 1004 (9th Cir. 2001). So, while the messages
    conveyed by erotic dancing and theatrical nudity may be similar, the social by-products of each
    medium may be considerably different. See DLS, Inc. v. Chattanooga, 
    107 F.3d 403
    , 412 n.9
    (6th Cir. 1997).34 Within the "limited field of regulations on public exhibitions of adult
    entertainment," therefore, the presence of negative secondary effects permits public nudity
    regulations to be treated "as content-neutral and so subject only to intermediate scrutiny."
    Giovani Carandola, Ltd., 
    303 F.3d at 515
    .
    All of this leads us to the application of the four-part test governing content-neutral
    restrictions on speech. Under that test, the Henrico ordinance survives scrutiny if it (i) falls
    within "the constitutional power" of the county, (ii) furthers an "important or substantial
    government interest," (iii) furthers that interest in a manner "unrelated to the suppression of free
    expression," and (iv) imposes no greater incidental restriction on protected speech "than is
    essential to the furtherance of that interest." Erie, 
    529 U.S. at 296-301
    ; see also Barnes, 
    501 U.S. at 567
    ; United States v. O'Brien, 
    391 U.S. 367
    , 376-77 (1968). I agree with the majority's
    conclusion that the Henrico public nudity ban satisfies prongs one and two, but disagree with its
    finding that it violates prongs three and four.
    On the third prong, the majority finds that the "purpose" of the ordinance is unrelated to
    the suppression of free expression, ante, at 13, but its "application" is not. In support, the
    majority again asserts that the artistic and theatrical exemption (written into the text of the
    ordinance) requires law enforcement officials to "make content-based distinctions." Ante, at 15.
    As noted earlier, however, the same exemption was present in Barnes and Erie. It serves an
    34
    A municipality's means for attacking secondary effects need not "greatly reduce these
    secondary effects." SOB, Inc. v. County of Benton, 
    317 F.3d 856
    , 863 (8th Cir. 2003) (citing
    Erie, 
    529 U.S. at 301
    ). Instead, the means must merely "further the interest in combating such
    effects." 
    Id.
     (citing Erie, 
    529 U.S. at 301
    ). Municipalities enjoy this leeway to have "a
    -55-
    important limiting function by avoiding potential overbreadth problems. See Barnes, 
    501 U.S. at
    564 n.1. The exemption also rests on a valid assessment of the differing secondary effects
    between the two venues. The focus on secondary effects was at the heart of the Erie holding:
    Even if we had not already rejected the view that a ban on public
    nudity is necessarily related to the suppression of the erotic
    message of nude dancing, we would do so now because the
    premise of such a view is flawed. The State's interest in preventing
    harmful secondary effects is not related to the suppression of
    expression.
    Erie, 
    529 U.S. at 292
    . The artistic and theatrical exemption, therefore, does not violate the third
    prong of the content-neutral test any more than it did in Barnes or Erie.
    The majority also holds that the Henrico ordinance violates the fourth prong. On this
    issue, the majority states that the "legislative intent" of the ordinance was "to prevent urinating in
    public and similar problems." Ante, at 17. But, because the literal text of the ordinance also
    applies to erotic dancing, the majority reasons, the ordinance goes further than necessary "to
    prevent or deter public urination, 'mooning' or skinny dipping." Ante, at 17.
    I cannot accept this analysis for several reasons. To begin with, the trial court made no
    factual finding that the purpose of the ordinance was limited to public urination, mooning, and
    skinny dipping. The majority's assertion appears to be taken from a memo from a lieutenant in
    the county police department to the police chief. The memo mentions the need of an ordinance
    to outlaw public urination, mooning, and skinny dipping. The same memo, however, also adds
    that the ordinance should prohibit "generally being nude in public." The majority's assertion,
    therefore, relies on a non-legislative source that, in any event, contemplates a greater scope than
    merely proscribing mooning, public urination, and skinny dipping.
    reasonable opportunity to experiment with solutions to admittedly serious problems." SOB, Inc.,
    
    317 F.3d at 863
     (citation omitted).
    -56-
    The only reliable source for legislative intent can be found in a memo of the Henrico
    County Board of Supervisors accompanying the proposed ordinance at the time of its enactment.
    It reads:
    The purpose of this ordinance is to make unlawful displays of
    public nudity in the County, which are deemed offensive to public
    morality and injurious to the health, safety and general welfare of
    County citizens, regardless of whether such nudity would or would
    not in any specific instance be deemed obscene. The ordinance
    contains exception for exhibitions and other performances in
    institutions or establishments, such as theaters and concert halls,
    primarily devoted to expressions of opinion, communication,
    speech, ideas, information, art or drama.
    (Emphasis added.)
    The stated purpose of the public nudity ban, therefore, involves broad concerns over
    "public morality" and the need to regulate conduct that the legislative body deemed "injurious to
    the health, safety and general welfare" of the community. 
    Id.
     It was exactly these concerns over
    "secondary effects, such as the impacts on public health, safety, and welfare," Erie explained,
    "which we have previously recognized are 'caused by the presence of even one such'
    establishment." Erie, 
    529 U.S. at 291
     (citation omitted). Barnes likewise found that an identical
    expression of the "traditional police power" of a state to "provide for the public health, safety,
    and morals" may serve as a permissible legislative goal for the enactment of a public nudity
    ordinance applicable to erotic dancing. Barnes, 
    501 U.S. at 569
    .35
    35
    Even if we did not have this legislative history, the legislative intent underlying public
    nudity bans can be inferred as a matter of law. See Barnes, 
    501 U.S. at 567-68
     ("It is impossible
    to discern, other than from the text of the statute, exactly what governmental interest the Indiana
    legislators had in mind when they enacted this statute . . . . Nonetheless, the statute's purpose of
    protecting societal order and morality is clear from its text and history. Public indecency statutes
    of this sort are of ancient origin, and presently exist in at least 47 States. Public indecency,
    including nudity, was a criminal offense at common law, and this Court recognized the common
    law roots of the offense of 'gross and open indecency' in Winters v. New York, 
    333 U.S. 507
    ,
    515 (1948). Public nudity was considered an act malum en se. Le Roy v. Sidley, 1 Sid. 168, 82
    Eng. Rep. 1036 (K.B. 1664). Public indecency statutes such as the one before us reflect moral
    disapproval of people appearing in the nude among strangers in public places.")
    -57-
    Properly applied, the fourth prong of the Erie content-neutral test requires us to consider
    whether the ordinance imposes too great an incidental burden on speech. Before engaging in this
    analysis, we must first frame the issue precisely. The only constitutional right here (albeit one
    "marginally" within the "outer perimeters" of the First Amendment, Barnes, 
    501 U.S. at 566
    ) is
    the erotic message implicit in nude or semi-nude dancing. There is no general right to take one's
    clothes off in public. Nor is there a constitutional right to wear pasties and G-strings rather than
    the lingerie-like tops and bottoms required by the Henrico ordinance. Thus, we cannot ask
    whether requiring slightly more clothes restricts the erotic dancer's right to be less clothed.
    "Being 'in a state of nudity,'" after all, "is not an inherently expressive condition." Erie, 
    529 U.S. at 289
    . Instead, we must ask whether the ordinance unduly burdens the dancer's ability to
    express her erotic message by requiring her to cover up slightly more of her body with slightly
    more fabric.
    Erie held that going from complete nudity to being partly clothed (with pasties and a
    G-string) involved a de minimis impact on the ability of a dancer to express eroticism. Erie, 
    529 U.S. at 294
    . The Henrico ordinance, in contrast, does not involve a transition from totally nude
    to partly clothed, but rather one from partly clothed to slightly more partly clothed. If going
    from naked to non-naked involves a constitutionally insignificant difference in degree, then the
    incrementally more fabric required by the Henrico ordinance can hardly constitute a
    constitutionally fatal difference. In this respect, the Henrico ordinance involves no more of a
    burden on the dancer's free speech than the Erie requirement to wear some form of clothing in
    the first place. The dancer's erotic message still reaches its intended audience. The additional
    clothing just "makes the message slightly less graphic." Barnes, 
    501 U.S. at 571
    .
    In determining whether "particular conduct possesses sufficient communicative elements
    to bring the First Amendment into play," we should consider not only the messenger's intent but
    -58-
    also whether "the likelihood was great that the message would be understood by those who
    viewed it." Texas v. Johnson, 
    491 U.S. 397
    , 404 (1989) (quoting Spence v. Washington, 
    418 U.S. 405
    , 410-11 (1974)). Along these same lines, I do not accept the majority's unstated
    assumption that the more graphic the dancer's display of nudity the more erotic her message
    becomes. While that may be true at the extremes (like the contrast between a dancer in a snow
    skiing suit and one completely naked), it is not true at the margins (like the contrast between a
    dancer wearing almost nothing and one wearing slightly more than almost nothing). Sharon
    Boyd, the erotic dancer in this case, made this point as well as anyone could:
    Q:      Is it, you get, you work by way of tips only at Gold City, is
    that correct?
    A:      Correct.
    Q:      And that the more, is it fair to say in your experience, the
    more skin you show, the more tips you get?
    A:      Not, not at all. Not at all. I'm –
    Q:      -- So you’re –
    A:      -- covered up. I work there, to this day, I work covered up
    every day and I make probably more money than I did
    before.
    If we gauge the effectiveness of Boyd's erotic message by the measurable reaction of the
    recipients of that message —— a task the First Amendment requires, Texas, 491 U.S. at
    404 —— we must conclude that the Henrico ordinance has had little, if any, negative impact on
    the erotic speech component of her dancing.
    For these reasons, I agree with the conclusion reached by the federal courts that have held
    that pasties and G-strings do not represent "the maximum requirements of dress that an
    anti-nudity ordinance may impose." Café 207 v. St. Johns County, 
    856 F. Supp. 641
    , 645-46
    (M.D. Fla. 1994), aff'd, 
    66 F.3d 272
     (11th Cir. 1995); see also Bright Lights v. City of Newport,
    -59-
    
    830 F. Supp. 378
    , 383-84 (E.D. Ky. 1993). I also agree with the trial court in our case that the
    Henrico ordinance satisfies all four prongs of the Erie content-neutral test.
    II.
    Void For Vagueness
    An enactment may be found void for vagueness under either of two related theories. See
    Hill v. Colorado, 
    530 U.S. 703
    , 733 (2000). First, if a statute "fails to provide people of ordinary
    intelligence a reasonable opportunity to understand what conduct it prohibits" it may be found
    vague. 
    Id.
     Second, an enactment may be found vague if "it authorizes or even encourages
    arbitrary and discriminatory enforcement." Hill, 
    530 U.S. at 733
    .
    The majority finds both vagueness infirmities with Henrico's public nudity ordinance.
    On the first point, the majority says that Henrico officials "never gave appellants any advance
    warning" that their conduct violated the public nudity ordinance. Ante, at 7-8. County officials,
    however, did not have to give the erotic club or any of its dancers specific notice of the
    ordinance. The mere promulgation of the ordinance was notice to all. See generally Bryan v.
    United States, 
    524 U.S. 184
    , 196 (1998) (recognizing the "traditional rule that ignorance of the
    law is no excuse"). "The determination whether a criminal statute provides fair warning of its
    prohibitions must be made on the basis of the statute itself and the other pertinent law, rather
    than on the basis of an ad hoc appraisal of the subjective expectations of particular defendants."
    Bouie v. Columbia, 
    378 U.S. 347
    , 355 n.5 (1964). Under settled law, therefore, we must apply
    "an objective test for determining whether a statute is vague." Laurence H. Tribe, Constitutional
    Law § 12-31, at 1033 n.3 (2d ed. 1988).
    The proper test requires focus on whether a reasonable person could have understood
    what the Henrico public nudity ordinance literally proscribed. See Hill, 
    530 U.S. at 733
    . The
    Virginia Supreme Court resolved that issue in Wayside Rest., Inc., 
    215 Va. at 236
    , 208 S.E.2d at
    55. There, an erotic club challenged a similar public nudity ordinance on vagueness grounds.
    -60-
    The Virginia Supreme Court held that the challenged terms in the ordinance were "in common
    use" and "readily understood by the average person." Id. The wording of the Henrico ordinance
    uses nearly identical language, having been patterned (the evidence at trial proved) expressly
    after the Virginia Beach ordinance approved by Wayside Rest., Inc.
    For example, the Henrico ordinance defines a "state of nudity" in a manner similar to the
    public nudity ordinance in Wayside Rest., Inc., 
    215 Va. at
    232 n.1, 208 S.E.2d at 52 n.1. The
    words used in the definition section of the public nudity ordinance —— "buttocks," "female
    breast," "top of the nipple" and the like —— are commonly understood terms. Cf. Code
    § 18.2-390(2) (using identical language to define nudity). Similarly, the artistic and theater
    exemption in the Henrico ordinance tracks verbatim the exemption in Wayside Rest., Inc., 
    215 Va. at
    232 n.1, 208 S.E.2d at 52 n.1. Indeed, the Virginia Supreme Court found that the most
    arguably ambiguous language in the exemption —— the catch-all phrase "other similar
    establishment" following the list of artistic venues like plays, dramas, and theaters —— was not
    unconstitutionally vague. Id. at 236, 208 S.E.2d at 55; see also Bomhower v. Virginia Beach, 
    76 F. Supp. 2d 681
    , 686 (E.D. Va. 1999) (rejecting similar vagueness challenge to a public nudity
    ordinance).
    In addition, a specific "scienter requirement" in an ordinance (requiring that criminal
    culpability be grounded on knowing violations of law) further protects a law from a vagueness
    challenge. Hill, 
    530 U.S. at 732
    . 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." Hoffman Estates v. Flipside, Hoffman Estates, Inc., 
    455 U.S. 489
    , 499 (1982). The
    Henrico ordinance contains a specific scienter requirement that the accused must "knowingly,
    voluntarily and intentionally" be in public in a "state of nudity." Henrico County Code
    -61-
    § 13-107(b). This scienter requirement, built into the text of the ordinance, undermines the
    appellants' claim of inadequate notice.
    I also disagree with the majority's assertion that the vagueness test should turn on
    whether the Henrico ordinance applies to "technical" violators like women wearing
    "contemporary swimwear," "short-shorts," or mothers engaged in breast feeding. Ante, at 7. As
    the United States Supreme Court recently emphasized, "speculation about possible vagueness in
    hypothetical situations not before the Court" should be given no weight in the analysis. Hill, 
    530 U.S. at 733
     (quoting United States v. Raines, 
    362 U.S. 17
    , 23 (1960)). "There is little doubt that
    imagination can conjure up hypothetical cases in which the meaning of these terms will be in
    nice question," 
    id.
     (quoting American Communications Assn. v. Douds, 
    339 U.S. 382
    , 412
    (1950)), but the focus must remain on the facts before the court.
    As a result, one "who engages in some conduct that is clearly proscribed cannot complain
    of the vagueness of the law as applied to the conduct of others." Hoffman Estates, 
    455 U.S. at 495
    ; see also Parker v. Levy, 
    417 U.S. 733
    , 756 (1974) ("One to whose conduct a statute clearly
    applies may not successfully challenge it for vagueness."); Bomhower, 
    76 F. Supp. 2d at 686
    (holding that an erotic club, against which the public nudity ordinance clearly applied, could not
    assert vagueness claim on behalf of others). The erotic dancers in this case stripped down to
    pasties and G-strings. They were not wearing "contemporary swimwear" or "short-shorts."
    Ante, at 7. Nor were they breast-feeding on stage. The majority's reliance on such "hypothetical
    situations not before the Court," Hill, 
    530 U.S. at 733
     (citation omitted), pushes vagueness law
    considerably beyond existing precedent.
    Finally, I disagree that the ordinance violated the vagueness test on the ground that "it
    authorizes or even encourages arbitrary and discriminatory enforcement." Hill, 
    530 U.S. at 733
    .
    Because law enforcement always "requires the exercise of some decree of police judgment,"
    -62-
    Grayned v. City of Rockford, 
    408 U.S. 104
    , 114 (1972), a law should not be invalidated unless
    its clarity has been "designedly avoided so as to allow the net to be cast at large," Papachristou v.
    City of Jacksonville, 
    405 U.S. 156
    , 166 (1972) (citation omitted).
    On this issue, I see no persuasive point to be made over the police officer's comment that
    he would have to "see a particular item of clothing" before determining whether to issue a
    summons. Ante, at 9. It is entirely appropriate for a police officer to examine the conduct in
    question and make a judgment as to whether, under the probable cause standard, the conduct is
    illegal. The vagueness test does not forbid individualized assessments by law enforcement
    officers. What it forbids is a law that, by its expansive sweep of language, enacts an elastic
    definition of illegality —— one that authorizes an officer to define for himself what is and is not
    legal. Nothing in the Henrico ordinance goes that far.
    III.
    Selective Prosecution
    The structure of tripartite government creates a judicial presumption in favor of "broad"
    prosecutorial discretion. See United States v. Armstong, 
    517 U.S. 456
    , 464-65 (1996). "This
    broad discretion rests largely on the recognition that the decision to prosecute is particularly
    ill-suited to judicial review." Wayte v. United States, 
    470 U.S. 598
    , 607 (1985). "Even in the
    criminal-law field, a selective prosecution claim is a rara avis." Reno v. American-Arab Anti-
    Discrimination Comm., 
    525 U.S. 471
    , 489 (1999). Thus, "in the ordinary case, 'so long as the
    prosecutor has probable cause to believe that the accused committed an offense defined by
    statute, the decision whether or not to prosecute . . . generally rests entirely in his discretion.'"
    Armstrong, 
    517 U.S. at 464
     (quoting Bordenkircher v. Hayes, 
    434 U.S. 357
    , 364 (1978)). "To
    succeed on a selective-prosecution claim, a defendant must demonstrate that the prosecutor's
    decision 'was based on an unconstitutional motive.'" Rowsey v. Lee, 327 F.3d ___, ___, 
    2003 U.S. App. LEXIS 7735
    , at *16 (4th Cir. April 24, 2003) (Wilkinson, J.) (citation omitted).
    -63-
    In this case, the majority holds the Henrico ordinance unconstitutional as applied to these
    appellants on "selective enforcement" grounds. Ante, at 10. This holding rests primarily on the
    prosecutor's concession that he would not prosecute "technical" violations of the ordinance, ante,
    at 9, which would include some forms of skimpy swimwear at public pools, nursing mothers in
    public, and the like. For several reasons, I believe this holding fails to satisfy the "demanding"
    standard, Armstrong, 
    517 U.S. at 463
    , required of selective prosecution claims.
    First, a selective prosecution claim requires a showing that "the prosecutor has brought
    the charge for reasons forbidden by the Constitution." Armstrong, 
    517 U.S. at 463
    . The claim
    cannot succeed without proof that the prosecution was "'deliberately based upon an unjustifiable
    standard such as race, religion, or other arbitrary classification,' including the exercise of
    protected statutory and constitutional rights." Wayte, 
    470 U.S. at 608
     (quoting Bordenkircher,
    
    434 U.S. at 364
    , Oyler v. Boles, 
    368 U.S. 448
    , 456 (1962), and citing United States v. Goodwin,
    
    457 U.S. 368
    , 372 (1982)).
    The appellants' as-applied selective enforcement claim fails for the same reason their
    content-based attack fails: The dancers have no First Amendment right to wear pasties and
    G-strings rather than the lingerie-like tops and bottoms required by the Henrico ordinance.
    Because the ordinance involves a content-neutral regulation of conduct that does not unduly
    burden any protected erotic speech, the appellants cannot claim they were being targeted for
    constitutionally suspect reasons. In other words, the appellants cannot show that Henrico
    prosecuted them "because of" their expression of constitutionally protected speech. Wayte, 
    470 U.S. at 610
     (emphasis in original).
    Second, the selective prosecution claim, having been rejected by the fact finder at trial,
    can only succeed on appeal if the facts demonstrate it as a matter of law. The factual record
    cannot support this showing. No evidence proved any "technical violations" had in fact occurred
    -64-
    in Henrico County. The majority's holding on this point, as well as the prosecutor's remarks
    about it, involve purely hypothetical situations —— the most fanciful of which being the
    observation that the enforcement of the public nudity ban would "permit Jennifer Lopez to wear
    one famously revealing dress," but might prohibit her from wearing others. See ante, at 18
    (adopting for its holding the federal court's order which abstained from deciding the issue).
    Once one gets beyond the hypotheticals, no evidence in this case demonstrated that the
    prosecutors had used the ordinance to target erotic dancing. Just the opposite was shown:
    Thirty-eight individuals had been prosecuted under the public nudity ban, and this one case
    involves the only application of the ordinance against erotic dancers.
    Finally, even if the hypothetical "technical cases" were real, the secondary effects
    doctrine provides a constitutionally adequate basis for judicial deference to prosecutorial
    discretion. See generally Erie, 
    529 U.S. at 295
     (recognizing "that one specific occurrence of
    public nudity —— nude erotic dancing —— is particularly problematic because it produces
    harmful secondary effects"). The impact on the local community of a strip club featuring erotic
    dancers can hardly be equated with nursing mothers in public restaurants, swimmers at a
    neighborhood pool, or, for that matter, a surprise visit from a scantily-clad Jennifer Lopez. For
    the same reason the secondary effects principle provides legitimacy to the governmental interest
    in regulating the business of erotica, it also explains why prosecutors may make commonsense
    distinctions between nursing mothers and swimmers, on the one hand, and erotic dancers,
    flashers, and public urinators, on the other.
    IV.
    In sum, I disagree with the majority's reasoning as well as its result. Both take the
    marginal speech right implicit in erotic dancing well beyond any existing precedent. I would
    affirm the trial court's finding that the Henrico ordinance neither operates as a content-based
    -65-
    regulation of free speech nor offends void-for-vagueness principles. I also agree with the trial
    court that the appellants did not make out a legally viable claim of selective prosecution.
    For these reasons, I respectfully dissent.
    -66-