American Bush v. City of South Salt Lake

2006 UT 40, 140 P.3d 1235, 557 Utah Adv. Rep. 3, 2006 Utah LEXIS 132, 2006 WL 2089130

• Court: Utah Supreme Court
• Decided: July 28, 2006
• Docket: 20020117
• Status: Published

Opinions

PARRISH, Justice:

¶ 1 Plaintiffs American Bush, Jerry Phelps,¹ Brent E. Reid, and Gayle Petersen (collectively, the “Businesses”) appeal the district court’s denial of their motion for summary judgment and grant of summary judgment to the City of South Salt Lake (“South Salt Lake” or the “City”) on the Businesses’ claim that the Utah Constitution protects nude dancing. We hold that the provisions of the Utah Constitution that guarantee Utah citizens’ rights to “communicate freely their thoughts and opinions” do not extend protection to nude dancing in sexually oriented businesses. We accordingly affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Plaintiffs American Bush, Jerry Phelps, dba Paradise Modeling, and Gayle Petersen, dba Leather and Lace, operate nude dancing establishments located in South Salt Lake. Plaintiff Brent E. Reid owns a lingerie and novelty store, also situated in South Salt Lake. In May 2001, the South Salt Lake City Council adopted a new sexually oriented business ordinance that repealed and replaced all previous ordinances of this type. Section 5.56.310(G) of the new ordinance specifically prohibits any sexually oriented business employee from “[a]ppear[ing] in a state of nudity before a patron on the premises of a sexually oriented business.” This language, which had not appeared in previous versions of the City’s sexually oriented business ordinance, effectively eliminates the former subcategory of “nude dancing establishments” and requires three of the four businesses — American Bush, Paradise Modeling, and Leather and Lace — to either reapply for business licenses as semi-nude dancing establishments or face civil and criminal sanctions for violation of the new ordinance.

¶3 Originally, the Businesses filed an action in district court, claiming, among other things, that article I, section 15 of the Utah Constitution confers greater protection on expression than does the United States Constitution, rendering the City’s ordinance prohibiting nude dancing a violation of state free speech rights. The City responded by removing the suit to federal district court, and the Businesses countered by amending their complaint before the City filed its answer, to delete all federal constitutional claims from the suit. The federal district court then dismissed all federal claims with prejudice but allowed the Businesses to refile their state constitutional challenges in state court.

¶ 4 After refiling in state court, the Businesses twice moved for temporary injunctions restraining the City from enforcing the ordinance. The motions were denied. The Businesses then moved for summary judgment, and the City responded with its own summary judgment motion. The district court denied the Businesses’ motion and granted South Salt Lake’s. The Businesses now appeal.

ANALYSIS

¶ 5 The Businesses present us with a question of Utah constitutional interpretation. Each of the businesses is, or has an interest in, a business offering nude dancing as part of an adult, sexually oriented business located in South Salt Lake City. The City has enacted various business license and zoning restrictions on sexually oriented businesses. The Businesses see these enactments as restrictions on their right of free expression through nude dancing and believe the restrictions are, or should be, prohibited under the Utah Constitution.

¶ 6 Specifically, the Businesses claim that article I, sections 1 and 15 of the Utah Constitution confer greater protection to expression through nude dancing than the United States Constitution.² As such, they claim that the city ordinance prohibiting nude dancing in South Salt Lake violates the free speech rights of the Businesses under the Utah Constitution. As subsidiary issues, the Businesses also claim that the institution of a new city ordinance banning nude dancing in sexually oriented businesses constitutes a “taking” in violation of article I, section 7 of the Utah Constitution, that the City is without legal 'authority to enact such an ordinance, and that as to plaintiff Brent Reid, the summary judgment entered in the City’s favor by the district court was improper. In reviewing the judgment of the district court, we will analyze each of these claims in turn.

I. PLAINTIFFS’ FREE SPEECH CLAIM

¶ 7 Plaintiffs have produced little direct authority for the proposition that the Utah Constitution protects nude dancing. However, this is due primarily to the poverty of both Utah case law and scholarly analysis of the history and meaning of the freedom of speech provisions of the Utah Constitution. In light of this court’s support of the primacy model, which analyzes issues under the state constitution before resorting to the federal constitution, West v. Thomson Newspapers, 872 P.2d 999, 1004-07 (Utah 1994), we take this opportunity to elucidate the constitutional underpinnings of our holding that. the Utah Constitution does not protect nude dancing from the reach of the South Salt Lake City ordinance at issue here. The issue was fairly raised by plaintiffs, and our attention to this matter may serve to clarify the state of the law in this area.

¶ 8 The question before us is whether a South Salt Lake ordinance banning nude dancing in sexually oriented businesses violates the Utah Constitution. The first step in our analysis must be to determine whether nude dancing is a protected right under the freedom of speech clauses of the Utah Constitution. If it is a protected right, we then must determine whether the ordinance im-permissibly abridges or restrains this right. As this court has not yet addressed these questions, this case is one of first impression.

A Interpretative Framework

¶ 9 Although this court has not addressed whether the Utah Constitution protects nude dancing, prior cases provide guidance on how the freedom of speech provisions of the Utah Constitution should be interpreted. The scope of Utah’s constitutional protections “may be broader or narrower than” those offered by the First Amendment, “depending on [our] state constitution’s language, history, and interpretation.” West, 872 P.2d at 1004 n. 4.

¶ 10 The interpretation of the protections afforded by the Utah Constitution appropriately commences with a review of the constitutional text. Grand County v. Emery County, 2002 UT 57, ¶29, 52 P.3d 1148 (explaining that “our starting point in interpreting a constitutional provision is the textual language itself’). While we first look to the text’s plain meaning, State v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218, we recognize that constitutional “language ... is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them.” Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). We thus inform our textual interpretation with historical evidence of the framers’ intent. State v. Betensen, 14 Utah 2d 121, 378 P.2d 669, 669-70 (1963) (“[I]t is proper to look not only to the [constitution] itself, but to the background out of which it arose and its practical application in order to determine the [framers’] intent.”); see also Univ. of Utah v. Bd. of Exam’rs, 4 Utah 2d 408, 295 P.2d 348, 361-62 (1956) (“[I]f the words are ambiguous or their meaning not clear, then it is proper to look outside the instrument itself to ascertain what the framers meant by the language used.”).

¶ 11 In reviewing the history of Utah constitutional provisions protecting the freedom of speech, “we [have] look[ed] for guidance to the common .law, our state’s particular ... traditions, and the intent of our constitution’s drafters.” West, 872 P.2d at 1013. We also have looked to court decisions made contemporaneously to the framing of Utah’s constitution in sister states with similar free speech constitutional provisions. KUTV, Inc. v. Conder, 668 P.2d 513, 518-21 (Utah 1983). In light of the fact that the Utah Constitution was “adopted ... against the background of over a century of experience under the United States Constitution,” an understanding of the First Amendment contemporary to its adoption is also instructive. Id. at 521.

¶ 12 In summary, in interpreting the Utah Constitution, prior case law guides us to analyze its text, historical evidence of the state of the law when it was drafted, and Utah’s particular traditions at the time of drafting.³ The goal of this analysis is to discern the intent and purpose of both the drafters of our constitution and, more importantly, the citizens who voted it into effect.⁴ It is from this latter class of individuals that the Utah Constitution derives its power and effect, and it is to them we must look for its proper interpretation.

¶ 13 The framers of Utah’s constitution saw the will of the people as the source of constitutional limitations upon our state government. On the floor of the Utah constitutional convention, Charles Varían quoted from a treatise written by Thomas Cooley, the preeminent authority of the late nineteenth century on state constitutional matters, which reads as follows:

In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed.... [A state constitution] is not the beginning of a community, nor the origin of private rights; it is not the fountain of law, nor the incipient state of government; it is not the cause, but consequence, of personal and political freedom; it grants no rights to the people, but is the creature of their power, the instrument of their convenience. Designed for their protection in the enjoyment of the rights and powers which they possessed before the constitution was made, it is but the framework of the political government, and necessarily based upon the pre-exist-ing condition of laws, rights, habits, and modes of thought. There is nothing primitive in it: it is all derived from a known source. It presupposes an organized society, law, order, property, personal freedom, a love of political liberty, and enough of cultivated intelligence to know how to guard it against the encroachments of tyranny.

Thomas M. Cooley, A Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union 36-37 (Leonard W. Levy ed., Da Capo Press 1972) (1868) [hereinafter Cooley, Constitutional Limitations ], quoted in 1 Official Report of the Proceedings and Debates of the Convention 643 (Salt Lake City, Star Printing Co. 1898) [hereinafter Proceedings ]. Thus, as the rights which are protected by the Utah Constitution are “based upon the pre-existing condition of laws, rights, habits, and modes of thought” then extant, id., it is to these sources that we must look to determine the proper scope of the freedom of speech.

¶ 14 Through the process of voting for the constitution on November 5,1895, the citizens of Utah circumscribed the limits beyond which their elected officials may not tread.⁵ As “[a]ll political power is inherent in the people,” Utah Const. art. I, § 2, only Utah’s citizens themselves had the right to limit their own sovereign power to act through their elected officials. Judicial officers may not substitute their own wisdom for that of the people of Utah inasmuch as the citizens limited the actions of their elected officials in certain areas but left them free in other areas to exercise their judgment in representing their constituents. To do so would be to deny political powers to the citizens of Utah that they in their wisdom and judgment had retained for themselves.

¶ 15 It is now our preliminary task to discern if the people of Utah intended to bind the hands of their duly elected, officials by protecting nude dancing under the free speech clauses of their constitution. We first examine the text of the freedom of speech clauses in our constitution. We then examine the historical roots of the language of our constitution. Finally, we examine the historical context of the society which adopted our freedom of speech clauses in order to divine the intent of our citizens in choosing the language.

B. The Text of the Freedom of Speech Provisions of the Utah Constitution

¶ 16 We begin our analysis with the constitutional text itself. The language of our constitution contains the surest indication of the intent of its framers and the citizens of Utah who voted it into effect. Article I, section 1 declares, in relevant part, that “[a]ll men have the inherent and inalienable right ... to communicate freely their thoughts and opinions, being responsible for the abuse of that right.” Utah Const, art. I, § 1. Additionally, article I, section 15 provides as follows:

No law shall be passed to abridge or restrain the freedom of speech or of the press. In all criminal prosecutions for libel the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact.

Id. art. I, § 15.

¶ 17 The framers of the Utah Constitution divided the freedom of speech guarantees into three distinct clauses. The first clause (the “liberty and responsibility clause”), contained in section 1 of the declaration of rights, defines the scope of the freedom of speech. Id. art. I, § 1. The second clause (the “governmental restriction clause”), contained in the first sentence of section 15, prohibits governmental actions that abridge or restrain those rights. Id. art. I, § 15. These first two clauses of general application function in concert; the first defines what is protected, while the second defines the limits of governmental action in relation to those protected activities. The third clause (the “•criminal libel clause”), contained in the second sentence of section 15, illustrates the limits of governmental action, and by inference the scope of individual freedoms, in the specific instance of criminal libel prosecutions. Id.

¶ 18 We pause to note that we disagree with Justice Nehring’s contention that article I, section 1 and article I, section 15 are not complementary and should not be read together. Such an interpretative approach defies conventional methods of constitutional interpretation, which dictate that when determining the meaning of a constitutional provision, “other provisions dealing generally with the same topic ... assist us in arriving at a proper interpretation of the constitutional provision in question.” In re Worthen, 926 P.2d 853, 866-67 (Utah 1996); see also Berry v. Beech Aircraft Corp., 717 P.2d 670, 675 (Utah 1985) (indicating that the meaning of a constitutional provision “must be taken not only from its history and plain language, but also from its functional relationship to other constitutional provisions”); State ex rel. Breeden v. Lewis, 26 Utah 120, 72 P. 388, 389 (1903) (indicating that when constitutional provisions “are in pari mate-ria, ... under well-known rules of interpretation, [they] must be construed together”). Since article I, section 1 and article I, section 15 are both directed toward expression, it is entirely appropriate, in fact necessary, that we construe these two provisions together. Indeed, this court has specifically held that “article I, section 15 must be read in conjunction with other constitutional provisions ,.. [including] [t]he opening provision of the Utah Constitution.” West, 872 P.2d at 1015 (emphasis added); see also Redding v. Brady, 606 P.2d 1193, 1196 (Utah 1980) (construing article I, section 1 and article I, section 15 in concert).

¶ 19 Justice Nehring suggests that these two provisions should not be read together because they have “distinct historical lineages.” Infra ¶ 158. As is ably articulated by Justice Durrant in his concurring opinion, however, the distinction urged by Justice Nehring is not entirely clear. Infra ¶ 102. And we are convinced that although article I, section 1 may have some natural law underpinnings, its language is clearly tempered by the Blackstonian-inspired phrase “being responsible for the abuse of that right.” See discussion infra ¶¶ 102-05. Consequently, Justice Nehring’s interpretation does not convince us that we should abandon the well-accepted approach of reading like provisions together.

¶ 20 Having concluded that these two provisions should be read in concert, we now must determine whether the interplay of these provisions protects nude dancing under the Utah Constitution. In analyzing this question, we deem the liberty and responsibility clause to be directly applicable because it defines the character of those activities that are protected. The criminal libel clause is also instructive, as it provides a specific example of the extent of those freedoms. The governmental restriction clause, however, is not applicable in this initial analysis because it does not expand upon the rights contained in the liberty and responsibility clause but merely restrains governmental action in relation to those established rights; no additional rights are secured by the former than are contained in the latter. Other states with similar constructions have interpreted their freedom of expression clauses similarly. See Ex parte Tucci, 859 S.W.2d 1, 23 (Tex.1993) (Phillips, C.J., concurring) (“[N]o Texas case has yet suggested that the second [governmental restriction] clause imparts protection greater than either the ‘liberty and responsibility’ clause or the First Amendment, or that it modifies the state’s ability to impose punishment for expressions deemed an ‘abuse.’ ”); Jacobs v. Major, 139 Wis.2d 492, 407 N.W.2d 832, 837 (1987) (“The two independent clauses [of article I, section 3] are neither verbose nor repetitious in expressing the idea of the section. They are related to each other with the first expressing the right to free speech and the second stating the entity, the state, against whom the right is shielded.”).

¶ 21 While it is true that the governmental restriction clause contained in article I, section 15 of the Utah Constitution is broader than its federal counterpart, this does not expand the range of expression protected, as Chief Justice Durham’s dissent seems to imply. See infra ¶ 113. Rather, it narrows the scope of permissible governmental action in relation to forms of expression protected by the liberty and responsibility clause of article I, section 1. Chief Justice Durham cites a footnote in Provo City Corp. v. Willden, 768 P.2d 455 (Utah 1989), infra ¶ 116 n. 10, in which we stated that article I, section 15 of the Utah Constitution, “by its terms, is somewhat broader than the federal clause.” 768 P.2d at 456 n. 2. Indeed, the Utah Constitution forbids laws which either “abridge or restrain the freedom of speech,” Utah Const. art. I, § 15, (emphasis added), while the United States Constitution forbids only those laws that “abridg[e]” that right. U.S. Const, amend. I. Thus, the language of the Utah Constitution seems to prohibit laws which either directly limit protected rights or indirectly inhibit the exercise of those rights. This clause, however, does not define what those rights are.

¶22 Instead, we must turn to the text of the liberty and responsibility clause to determine what these rights are. The Utah Constitution explicitly defines the freedom of speech right in article I, section 1 as the right to “communicate freely ... thoughts and opinions, being responsible for the abuse of that right.” In interpreting this clause, Chief Justice Durham focuses on the word “communicate.” Infra ¶ 116. Purporting to use a plain language analysis, Chief Justice Durham asserts that since nude dancing is communicative, it is therefore communication. See discussion infra ¶¶ 116-23. Such an interpretation is problematic, however, because it does not make a distinction between communicative acts and communication. It assumes that because nude dancing is communicative, it is constitutionally protected unless it qualifies as an abuse of the right to communicate. But this interpretation is overly broad because it does not examine the meaning of “communicate” within the context of a constitution. It attempts to suggest that the term “communicate” has a single, objective meaning that can be read in isolation. This is not the case. “A text’s meaning cannot be separated from its speaker, its audience, its genre—-from its context.” Laney v. Fairview City, 2002 UT 79, ¶ 32, 57 P.3d 1007 (internal quotation marks and brackets omitted).

¶23 In using history as context to illuminate the text’s meaning, we recognize that the Utah Constitution is not a patchwork of “barren words found in a dictionary.” Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). Instead, it is the “original and supreme will” of the citizenry, and “a superior, paramount law” that fixes the boundaries of power granted to the branches of state government, including this court. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 176-77, 2 L.Ed. 60 (1803). If these boundaries can be shifted by “those intended to be restrained,” then “[t]he distinction[ ] between a government with limited and unlimited powers[] is abolished.” Id. We must therefore consider the text in its historical context in order to discern if the constitution’s framers intended to limit the government’s power to regulate nude dancing. See In re Inquiry Concerning a Judge, 1999 UT 6, ¶ 15, 976 P.2d 581 (explaining that “this court has a very long history of interpreting constitutional provisions in light of their historical background and the then-contemporary understanding of what they were to accomplish”); see also Spence v. Utah State Agr. Coll., 119 Utah 104, 225 P.2d 18, 23 (1950) (“We are restricted to this definition because of another canon of constitutional construction that terms used in a constitution must be taken to mean what they meant to the minds of the voters of the state when the provision was adopted.” (citation omitted)).

¶ 24 Indeed, Chief Justice Durham herself has previously recognized the importance of evaluating constitutional text within a historical framework, stating that “[constitutional language must be viewed in context, meaning that its history and purpose must be considered in determining its meaning.” Laney, 2002 UT 79, ¶ 37, 57 P.3d 1007 (emphasis added). In light of this recognition, it is puzzling why she believes it is inappropriate to examine historical evidence of the framers’ intent.

¶ 25 Therefore, with a historical context in mind, we return to the text of the liberty and responsibility clause. ' On its face, the freedom of speech defined in the Utah Constitution is a circumscribed right. The freedom to communicate thoughts and opinions is limited by the caveat that abuses of the right may be punished. West, 872 P.2d at 1015. The term “abuse of that right” specifically constrains the scope of the communication right, and any textual interpretation must consider how this phrase functions within the liberty and responsibility clause.⁶

¶ 26 The question then becomes, “What constitutes an abuse of this right?” This court has noted that “some historical evidence suggests that [the phrase ‘responsible for the abuse’] was intended to preserve liability for defamation.” Id.; see also 1 Jennifer Friesen, State Constitutional Law: Litigating Individual Rights, Claims, and Defenses § 5-2(c)(5) (3d ed.2000). While this is undoubtedly true, there is. no evidence that the framers intended to limit the abuses that may be regulated to defamation suits. The framers chose to use the broad phrase “abuse of that right” rather than language specifically tailored to suits for libel and defamation. We must assume that they did so in order to preserve a broader definition of what constitutes an abuse.

¶27 The only textual evidence for what this phrase means can be found in the criminal libel clause in the second sentence of article I, section 15. In this clause, we see that it may be an abuse of free speech to print a statement libelous to government interests, even if that statement happens to be completely true. Under that clause, an individual may use the truth as a defense in suits for criminal libel only if the statements were “published with good motives, and for justifiable ends.” Utah Const, art. I, § 15.

¶28 The United States Supreme Court, however, has explicitly rejected the “good motives” and “justifiable ends” requirements under the First Amendment to the United States Constitution. See Garrison v. Louisiana, 379 U.S. 64, 70-73, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964); see also I.M.L. v. State, 2002 UT 110, ¶ 23, 61 P.3d 1038. Under the United States Constitution, therefore, the truth may be used as a defense in criminal libel cases regardless of the motives for the offending statement’s utterance. See Garrison, 379 U.S. at 73, 85 S.Ct. 209. Thus, the plain language of the Utah Constitution provides less protection in this area than the First Amendment.⁷ The criminal libel clause, therefore, clearly demonstrates that the Utah Constitution provides, not absolute, but limited protection for the expression of ideas and opinions. Under its terms, even the articulation of truthful yet libelous ideas is constrained by the requirement that they be expressed, not out of malice, but for a socially beneficial end.

¶ 29 Thus, from the text of the Utah Constitution, we see that the clause defining the scope of activities protected by the freedom of speech does not extend to “abuses” of that freedom. We also see that the purely malicious expression of truthful yet libelous statements is one example of what would be considered an abuse of the freedom of speech by our constitution. The plain text of the Utah Constitution, however, does not clearly indicate whether nude dancing is a protected expression of thoughts and ideas, or whether it is an abuse of this right and therefore excepted from constitutional guarantees. In order to determine what would be considered an abuse within the context of the Utah Constitution, we therefore undertake an historical analysis to discern the intent of the citizens of Utah in adopting this limitation on the freedom of speech.

¶ 30 Chief Justice Durham criticizes our approach for the undesirable results it might produce in other cases, specifically pointing to the landmark United States Supreme Court decision of Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), as one case where our approach might produce a morally unacceptable result. Infra ¶ 135. While we doubt that our approach would mandate unacceptable outcomes in Brown and other cases,⁸ we do not accept the broader contention, suggested by Chief Justice Durham, that outcomes should dictate our approach. Ultimately, our historical approach gives proper deference to the citizenry’s exercise of sovereignty and political power in granting limited powers to the state government through the enactment of the Utah Constitution. If the electorate finds certain outcomes dictated by this approach unacceptable, it can again wield its precious political power to counteract the actions of the legislature or, if necessary, amend the offending language of the Utah Constitution. We now use this approach to discern the intent of the framers of the Utah Constitution.

C. The History of the Freedom of Speech Provisions at the Time of Utah’s Constitutional Convention

¶ 31 The drafters of the Utah Constitution borrowed heavily from other state constitutions and the United States Constitution. Therefore, tracing the genealogy of Utah’s freedom of speech clauses to their progenitors sheds light on the framers’ intent in adopting particular provisions. The following discussion illustrates that Utah’s decision to limit the freedom of speech, by holding citizens responsible for the abuse of that right, finds its roots in the English common law.

¶ 32 At the time of our nation’s founding, the idea that the freedom of speech was subject to some limitation found popular expression in the writings of Blackstone. In this passage from his Commentaries, first published between 1765 and 1769, Blackstone famously declares:

[Wjhere blasphemous, immoral, treasonable, sehismatical, seditious, or scandalous libels are punished by the English law, some with a greater, others with a less degree of severity; the liberty of the press, properly understood, is by no means infringed or violated. The liberty of the press is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity.... Thus the will of individuals is still left free; the abuse only of that free will is the object of legal punishment.... [T]he press cannot be abused to any bad purpose, without incurring a suitable punishment. ...

William Blackstone, 4 Commentaries *151-53 (emphasis in original). Thus, the principle of limited freedom of speech in the Utah Constitution has its roots in Blackstone’s formulation of the common law, which prohibits prior restraints on publications, but reserves for the state the power to punish publications considered to be an abuse of the liberty of the press, including “immoral” libels.⁹

¶ 33 This Blackstonian construction of the freedom of speech, however, was not used in the earliest state constitutions of the revolutionary period. Other voices from England’s intellectual tradition initially proved to be more influential on the constitutional law in our emerging nation. Of particular importance were Trenchard and Gordon, who published a series of letters between 1720 and 1723, collectively known as Cato’s Letters, that argued for more extensive rights of expression without fear of government reprisal. See Ex parte Tucci 859 S.W.2d 1, 65 (Tex.1993) (Phillips, C.J., concurring). One commentator has even described these essays as “ ‘the most popular, quotable, esteemed source of political ideas in the colonial period.’ ” David A. Anderson, The Origins of the Press Clause, 30 UCLA L.Rev. 455, 491 (1983) (quoting C. Rossiter, Seedtime of the Republic 141 (1953)). Indeed, our nation’s earliest notion of the freedom of speech probably “was closer to Cato’s than Blackstone’s.” Tucci 859 S.W.2d at 66 (Phillips, C.J., concurring).

¶ 34 Cato’s Letters were popular enough in the period leading up to the Revolutionary War that the leading radical newspaper in Massachusetts, the Boston Gazette, republished Trenchard and Gordon’s essays in 1768. Anderson, supra ¶ 33, at 463. The principles espoused in Cato’s Letters were put to the test later that same year, when the Boston Gazette published an article critical of the royal governor, who then asked the colonial legislature to refer the matter to a grand jury for prosecution as seditious libel. Id. “The House, dominated by the radical leader Sam Adams, refused to do so and instead adopted a resolution” which drew upon language from Cato’s Letters: “The Liberty of the Press is a great Bulwark of the Liberty of the People: It is, therefore, the incumbent Duty of those who are constituted the Guardians of the People’s Rights to defend and maintain it.” Id. (internal quotation marks omitted).

¶ 35 As the colonies declared their independence from Great Britain, this bulwark metaphor, taken from Essay No. 15 of Cato’s Letters, entitled, “Of Freedom of Speech: That the same is inseparable from Publick Liberty,” 1 Cato’s Letters 96 (3d ed.1969), found its way into a few of the new states’ constitutions. Of the nine states that explicitly protected the freedom of the press in this early period, none adopted the qualifying language from Blackstone. See Tucci, 859 S.W.2d at 67 (Phillips, C.J., concurring). Two of these states, however, adopted the “bulwark of liberty” language from Cato. Anderson, supra ¶ 33, at 492. The influential Virginia Bill of Rights of 1776 read: “That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments.” Va. Const. Bill of Rights, § 12 (1776). Later that same year, North Carolina adopted a very similar provision in its Declaration of Rights: “That the freedom of the press is one of the great bulwarks of liberty, and therefore ought never to be restrained.” N.C. Const. Declaration of Rights XV (1776).

¶ 36 Of the early state constitutions, however, the Pennsylvania Constitution of 1776 contained one of the broadest statements of the freedom of speech of the original thirteen states. Robert F. Williams, The State Constitutions of the Founding Decade: Pennsylvania’s Radical 1776 Constitution and its Influences on American Constitutionalism, 62 Temp. L.Rev. 541, 555 (1989). Of the original state constitutions, Pennsylvania’s constitution was the only one to explicitly mention the general freedom of speech, distinct from the more specific freedom of the press enumerated in other state constitutions. 1 Friesen, supra ¶26, § 5-2(a); Anderson, supra ¶33, at 465. It provided that “the people have a right to freedom of speech, and of writing, and publishing their sentiments; therefore the freedom of the press ought not to be restrained.” Anderson, supra ¶ 33, at 465 (internal quotation marks omitted). Pennsylvania’s 1776 provision, with its plenary and unqualified formulation of the freedom of speech, even served as a model for the freedom of speech component of James Madison’s initial proposal to Congress for the First Amendment.¹⁰

¶37 As the revolutionary fervor in the United States cooled, however, the broader ideas about the limits of the freedom of speech right embodied in the revolutionary constitutions were blunted by the more conservative Blackstone formulation of the freedom of the press.¹¹ Even the freedom of speech clause of the Pennsylvania Constitution was no exception to this trend, as the once plenary right of expression became qualified by the Blackstonian addendum requiring responsibility for abuse: “The free communication of thoughts and opinions is one of the invaluable rights of man; and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty.” Pa. Const, art. IX, § 7 (1790). In view of the liberal and unqualified nature of the 1776 clause, the addition of this Blackstonian limitation is no empty formulation, but represents a shift to a more limited freedom of speech right.

¶ 38 During the nineteenth century, as states were added to the Union and the original thirteen states began to revise their constitutions, the vast majority of the states adopted a “responsibility for abuse” provision. As of the year 2000, 43 state constitutions contained the “freedom of speech” tempered by a “responsibility for abuse” clause. 1 Friesen, supra ¶ 26, at §§ 6-85 through 5-96. Even the Virginia and North Carolina Constitutions, with their rhetorical nods to the radical Cato’s Letters, were swept up in this trend toward limited freedom of speech rights. While both maintained the “bulwarks of liberty” metaphor in their constitutions, North Carolina, in 1868, and Virginia, in 1870, qualified their broad freedom of speech protections with responsibility for abuse language.¹² Tucci 859 S.W.2d at 52, 57. Although West Virginia is currently one of the seven states without this construction, the citizens of that state chose to revise their constitution in 1872 to specifically list exceptions to its freedom of speech guarantees: “ ‘No law abridging the freedom of speech, or of the press, shall be passed; but the Legislature may by suitable penalties, restrain the publication or sale of obscene books,' papers or pictures, and provide for the punishment of libel, and defamation of character....’ ” Id. at 58. (quoting W. Va. Const. art. III, § 7 (1872)).

¶ 39 This wave of state constitutional provisions providing limited protections for the freedom of speech reflects what one of our founding fathers saw as the states’ greater authority to regulate speech. As President Thomas Jefferson wrote in 1804:

Nor does the opinion of the unconstitutionality and consequent nullity of [the Sedition Act of 1798] remove all restraint from the overwhelming torrent of slander which is confounding all vice and virtue, all truth and falsehood in the U.S. The power to do that is fully possessed by the several state legislatures. It was reserved to them, and was denied to the general government, by the constitution according to our construction of it. While we deny that Congress have [sic] a right to [control] the freedom of the press, we have ever asserted the right of the states, and their exclusive right, to do so.... In general the state laws appear to have made the presses responsible for slander as far as is consistent with their useful freedom.

Letter from Thomas Jefferson to Abigail Adams (Sept. 11, 1804), in The Adams-Jefferson Letters 279 (Lester J. Cappon ed., 1988).

¶ 40 In sum, when the Utah framers chose to include “responsibility for abuse” in their formulation of the state’s freedom of speech provisions, they chose a phrase with a long history of preserving the power of the state to regulate speech under certain historical exceptions. The foregoing history demonstrates that, rather than embracing more liberal ideas of the freedom of speech, the “responsibility for abuse” phrase articulates a conservative limitation upon the constitutionally granted freedom .of speech right. This limitation, in turn, can be traced back to Blackstone’s Commentaries, which specifically preserve the capacity of the state to restrict “immoral” speech.¹³

D. The History and.Context of Utah’s Adoption of Its Freedom of Speech Provisions

¶ 41 Historical analysis of Utah’s adoption of the freedom of speech clause reveals more precisely the parameters of its protections. Utah’s constitutional convention provides some indication of the framers’ intent in drafting our freedom of speech provisions. More importantly, though, the minutes of the convention direct our analysis to an examination of the common law and statutory law then in effect in order to discern the values and policy judgments of the Utah citizens who ratified our constitution.

1. The Utah Constitutional Convention

¶ 42 The minutes of the 1895 Utah constitutional convention point to the fact that the framers of our constitution also envisioned a limited freedom of speech. When the chairman of the committee that wrote the declaration of rights presented the first draft to the convention as a whole, he emphasized the balance it sought to maintain between preserving important rights and not binding the hands of the legislature to carry out the will of the people. Thus, although the committee strove to enumerate fundamental rights, it also recognized that “if, on the other hand, we have inserted rights which ought to be left to the Legislature, we shall not be offended if they are stricken out.” Proceedings, supra ¶ 13, at 200.

¶43 The debates over the freedom of speech clauses centered on this tension between protecting rights and allowing the legislature the freedom to make laws according to the will of the people. Although there was no substantial debate over the liberty and responsibility clause, there was extensive debate over the criminal libel clause in section 15 of article I. Id. at 319-23. This debate highlights the limited nature of the freedom of speech protections contained in the Utah Constitution as well as the deference the delegates gave to the common law.

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

¶ 45 While the first and third modifications received no comment, the second modification extending constitutional protections to civil cases sparked an intense debate over the law of civil libel. Id. at 319-23. Goodwin argued that it was necessary to explicitly extend protections to civil suits because judges would interpret section 15 as it then stood to mean that the truth could not be used as a defense in civil suits. Id. at 320. Charles Varían opposed the proposed amendment because, in his view, the amended version would unintentionally curtail then-existing rights. Id. Lecturing the delegates about the historical roots of the law of libel in the English common law, Varían noted that the proposed section would provide truth as a defense in civil suits only where good mo-fives and justifiable ends could be proven, whereas, under the common law, truth was an unqualified defense in civil cases. Id. at 320-23. ■

¶ 46 The proposed amendment was ultimately defeated, id. at 322, but, as is often the case in interpreting convention votes, it is difficult to discern the intent of the delegates in doing so. It is impossible to tell with any degree of certainty whether the delegates were rejecting what Goodwin perceived to be increased protections to the freedom of speech or whether they were rejecting what Varían perceived to be an unintended hindrance to that same freedom. Yet a third possibility is that, confused by the complicated legal history, the delegates simply chose to stick with the status quo as the safest course of action. Whatever the delegate’s motives, Goodwin clearly saw this as a defeat for the freedom of speech. In fact, he even proposed that section 15 be stricken from the constitution in its entirety because “[a]s it is, I think the section is a menace to everyone who publishes a newspaper in this State.” Id. at 322. This extreme measure did not pass. Id. at 323.

¶ 47 Although the meaning of the vote on Goodwin’s amendment is ambiguous at best, another amendment was proposed and voted on which allows us to draw a conclusion about the intent of the framers with more confidence. Nathaniel Kimball proposed an amendment that guaranteed protections to newspapers from civil suits without the defects of the Goodwin amendment by adding to the end of section 15 the clause, “and in civil prosecutions for libel the truth may be given in evidence, and if it shall appear to the jury that the matter charged as libelous is true, it shall be a complete defense.” Id. at 323. This amendment, which unambiguously increased free speech protections, was rejected by the delegates, id., indicating that they intended limited constitutional protection of that right. Thus the framers of the Utah Constitution left the regulation and protection of civil libel to the legislature and the common law,

¶ 48 Perhaps the more relevant lesson to be drawn from the debate over section 15 is the degree to which the framers relied on and followed the common law in drafting the state’s freedom of speech provisions. Varían, in particular, went into great detail in explaining the history and development of the common law in England. This reliance upon the common law indicates that the delegates themselves saw the common law as establishing jthe boundaries of the freedom of speech.

2. The Common Law and Statutory Law in Effect at the Time the Freedom of Speech Provisions Were Adopted

¶ 49 The framers’ reliance on the common law reinforces a well established principle that, in order to discern the outer limits of the freedom of speech, we must look to common law sources.¹⁶ This court has previously noted the common law sources of Utah’s constitutional provisions, stating as follows:

The warp and the woof of the law in the Territory was the common law. The volumes of the Supreme Court Reports for the Territory of Utah are replete with the application of common law principles in all kinds of property, personal injury, and contract cases, as well as on procedural issues. Indeed, various provisions of the Utah Declaration of Rights cannot be understood without reference to the common law and the history of Anglo-American law. For example, the provisions in the Declaration of Rights with respect to the right of free speech, the privilege against self-incrimination, the right to jury trial, etc., are all rooted in, and grew out of, the common law heritage that defines the scope and meaning of many provisions in both the Utah and the United States Constitutions. Indeed, this Court has often resorted to the common law in construing various provisions in the Utah Declaration of Rights.

Craftsman Builder’s Supply, Inc. v. Butler Mfg. Co., 1999 UT 18, ¶ 54, 974 P.2d 1194 (Stewart, J., concurring). Thus, we must look to the common law to determine if nude dancing fits within the scope and protection of Utah’s freedom of speech provisions.

¶ 50 The laws in effect in Utah in 1895, both statutory and common law, give us the clearest picture of the values and policy judgments of the people of Utah when they voted for their constitution. These laws reflect the boundaries that the citizens of Utah conceived between the conflicting societal values of individual rights and the power of a duly elected government to carry out the will of the people. Both the statutes drafted by the territorial legislature and the earliest laws generated by the new state legislature reflect the values of the citizens who voted their local representatives into office. The common law then extant also represents the accepted legal heritage that the people of Utah brought with them when they immigrated to this state. Indeed, the people of this state, through their legislature, explicitly adopted the common law soon after statehood.¹⁷

¶ 51 Both the common law and the statutory law in force at the time of the formation of our constitution demonstrate that obscene speech was not protected by the freedom of speech. As already noted, Blackstone, the original source of the liberty and responsibility clause of our constitution, specifically stated that the punishment of “immoral” speech did not constitute an infringement of the liberty of the press. Blackstone, supra ¶ 32, at *151-53. Lest this connection to Blackstone be dismissed as a hollow and formalistic reference to long forgotten principles, the most respected constitutional scholar at the time of the drafting of the Utah Constitution noted that the freedom of speech contained in state constitutions did not protect obscenity. Thomas Cooley, an authority quoted on the floor of the Utah constitutional convention, noted that the freedom of the press signifies

the liberty to utter and publish whatever the citizen may choose, and to be protected against legal censure and punishment in so doing, provided the publication is not so far injurious to public morals or to private reputation as to be condemned by the common-law standards, by which defamatory publications were judged when this freedom was thus made a constitutional right.... Blasphemous and indecent publications, and the exhibition of indecent pictures and images, were always punishable at the common law....

Thomas M. Cooley, The General Principles of Constitutional Law in the United States of America 285-86 (2d ed. 1891). While, in this passage, Cooley -specifically refers to the freedom of the press clause in the United States Constitution, he elsewhere makes the same observation of the freedom of speech provisions found in state constitutions. Cooley, Constitutional Limitations, supra ¶ 13, at 422.

¶ 52 The United States Supreme Court in decisions contemporaneous to the'drafting of the Utah Constitution has reflected this view in dicta. See Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897) (“Thus, the freedom of speech and of the press (art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation.”); In re Rapier, 143 U.S. 110, 134, 12 S.Ct. 374, 36 L.Ed. 93 (1892) (“We cannot regard the right to operate a lottery as a fundamental right infringed by the legislation in question; nor are we able to see that Congress can be held, in its enactment, to have abridged the freedom of the press.... [T]he government declines itself to become an agent in the circulation of printed matter which it regards as injurious to the people.”); Ex parte Jackson, 96 U.S. 727, 736, 24 L.Ed. 877 (1878) (“In excluding various articles from the mail, the object of Congress has not been to interfere with the freedom of the press, or with any other rights of the people; but to refuse its facilities for the distribution of matter deemed injurious to the public morals.”). In keeping with the Court’s language on the matter, at least one federal court in the decade in which the Utah Constitution was written and ratified held directly that punishment for the distribution of obscene materials did not run afoul of the First Amendment. United States v. Harmon, 45 F. 414, 416 (D.Kan.1891), rev’d on other grounds, Harman v. United States, 50 F. 921 (C.C.D.Kan.1892).

¶ 53 These federal decisions not only articulate the widely accepted view of the common law in the late nineteenth century, they also demonstrate the prevailing view of the scope of freedom of speech rights in that era. Consistent with those federal decisions, this court has also held that the Utah Constitution, like the United States Constitution, does not protect obscene speech. See W. Gallery Corp. v. Salt Lake City Bd. of Comm’rs, 586 P.2d 429, 430 (Utah 1978). After analyzing statutes in effect at the time of the drafting of their constitutions, several of our sister states with similar constitutional provisions have also held that their constitutions do not protect obscenity. See People v. Ford, 773 P.2d 1059, 1064-66 (Colo.1989); Fordyce v. State, 569, N.E.2d 357, 360-62 (Ind.Ct.App.1991); State v. Marshall, 859 S.W.2d 289, 294 (Tenn.1993).

¶ 54 Thus, it was a well established and widely recognized principle of constitutional law at the time of the drafting of the Utah Constitution that obscene speech was not protected speech, and this court has explicitly ruled that our constitution does not shield it from government regulation. There remains, however, the specific question of whether nude dancing falls within the unprotected category of obscenity or whether the citizens of Utah intended to protect it under its free speech provisions.

II55 The laws in effect at the time of the Utah Constitution’s ratification clearly indicate that, if the people of this state ever considered nude dancing to be speech, it must have been a punishable abuse of that freedom. Laws enacted soon after the Utah Constitution was ratified clearly forbade activities such as nude dancing. In 1898, the Utah legislature enacted a law making it a crime to “employ any female to dance, promenade, or otherwise exhibit herself’ in any “saloon, dance cellar, or dance room, public garden, public highway, or in any place whatsoever, theatres excepted,” or for a female to engage in such activity. Utah Rev. Stat. § 4244 (1898).

¶ 56 Justice Nehring contends that the purpose of this and other similar statutes was “to regulate gender roles, not expression.” Infra ¶ 189. We disagree. Although the legislature may have been- concerned with regulating gender roles, it was also clearly interested in regulating the content of various activities, including dancing, as evidenced by several gender-neutral statutes. For example, even before the passage of Utah’s constitution in 1888, the very same territorial statute that forbade speech traditionally punishable as obscene under the common law also forbade any person to “[e]x-pose[ ] his person” or

procure[ ], counsel[ ] or assist[ ] any person so to expose himself, or to take part in any model artist exhibition, or to make any other exhibition of himself to public view, or to the view of any number of persons, such as is offensive to decency, or is adapted to excite to vicious or lewd thoughts or acts.

Compiled Laws of Utah § 4527(1)-(3) (1888). Thus, when the Utah Constitution was ratified, it was illegal for either men or women to expose themselves to even willing participants in such a way as to excite lewd thoughts. Such activities were lumped together into the same category as obscene speech contained in print or pictures, which traditionally did not enjoy constitutional protection. After Utah attained statehood in 1896, a commission was appointed to revise the territorial laws and “make them conform to the constitution.” Utah Rev. Stat. at iii. In 1897, the state legislature adopted statutes identical to the aforementioned territorial laws, expressing its approval of their conformity to the new state constitution. Utah Rev. Stat. § 4247(1)-(3) (1898).

¶ 57 Thus, in 1895, when the people of our state ratified our constitution, they considered nudity that was offensive to decency or that excited lewd thoughts to be unacceptable in Utah. In 1897, the state legislature, duly elected by this state’s citizens, reaffirmed the judgment that activities such as nude dancing could be prohibited by the state of Utah. In view of this historical evidence, we conclude that those who framed and ratified Utah’s constitution did not intend to extend its protections to nude dancing.

¶ 58 In summary, the scope of the constitutional provisions guaranteeing the right of Utah citizens to “communicate freely their thoughts and opinions, being responsible for the abuse of that right,” is unclear from the constitutional text. In interpreting their scope, it is therefore appropriate for us to consider historical context and other evidence of the framers’ intent. The debate over the provisions at issue establishes that the framers looked to the common law to provide the boundaries of the right to free expression. And both the common and statutory law in effect at the time demonstrate that nude dancing does not fall within the scope of constitutionally protected communication. We accordingly hold that nude dancing in plaintiffs’ sexually oriented businesses is not entitled to protection under the freedom of expression clauses of the Utah Constitution.

II. PLAINTIFFS’ OTHER CLAIMS

¶ 59 In addition to their freedom of speech argument, the Businesses claim that they have been the’Victims of an unconstitutional “taking” without due process of law. This argument is based on their assertion that they had a property right in their business licenses that allowed nude dancing on the premises, that those licenses were eliminated as a class, and that the Businesses were unable to obtain a new class of license allowing partial nudity and serving alcohol because of a restriction on the number of licenses available. The City counters that due process simply requires notice and the opportunity to be heard with respect to the prior license, and “taking” has nothing to do with application for the new licenses in this instance. We agree with the City.

¶ 60 Although this court has recognized that there is a property interest in a business license, the requirements of due process can be satisfied via notice and a hearing, both of which occurred here. See Dairy Prod. Servs., Inc. v. City of Wellsville, 2000 UT 81, ¶ 49, 13 P.3d 581. Due process is not implicated by the City’s failure to award additional alcohol licenses to the Businesses, which would allow them to feature semi-nude dancing and alcohol. Although granting such licenses may increase the likelihood of prosperity for the Businesses, denying such licenses does not contravene due process.

¶ 61 The Businesses also assert that the City was without authority to enact the ordinance at issue because the legislature has preempted the field. The legislative statute in question addresses nudity in “places open to public view”; the Businesses contend that because the City’s ordinance bans nudity only in nude dancing establishments, it is inconsistent with, and preempted by, the state statute. We disagree.

¶ 62 The City has ample authority to enact the ordinance, and it is not in conflict with any state law. See Call v. City of W. Jordan, 606 P.2d 217, 219 (Utah 1979). Pursuant to Utah Code section 10-8-84 (2003), cities have the power to regulate businesses through licensing policies and the enactment of ordinances. Because it is well established that Utah municipalities have the right to legislate on the same subject as a state statute where the general welfare power is at issue, we reject the Businesses’ argument that the legislature has preempted the field or that the ordinance conflicts with state law.

¶ 63 We finally turn to plaintiff Reid’s claim that the district court erred in granting summary judgment against him. Plaintiff Reid operates a lingerie and novelty store. While the other plaintiffs challenged the ordinance on the basis that its ban on nude dancing violated the freedom of expression guarantees of the Utah Constitution, Reid challenged the ordinance on vagueness grounds. The ordinance applies to those businesses that derive a “significant or substantial” portion of their revenues from the sale of adult products or that devote a “substantial section” of their sales or display space to such products. Reid’s complaint alleged that this language was unconstitutionally vague because it was impossible for him to determine whether the ordinance applied to him. On appeal, Reid asserts that the district court erred in granting summary judgment against him because none of the briefing or argument in the district court analyzed his vagueness claim. We agree.

¶ 64 Because a summary judgment presents questions of law, we accord no deference to the ruling of the district court. Rather, we review it. for correctness. Salt Lake County v. Metro W. Ready Mix, Inc., 2004 UT 23, ¶ 11, 89 P.3d 155. We conclude that the district court’s summary judgment order was overly broad. When the parties filed cross-motions for summary judgment on the nude dancing issues, none of them presented any facts or argument with respect to Reid’s vagueness claim.¹⁸ In fact, none of them mentioned the vagueness claim at all. Nevertheless, the district court’s summary judgment order erroneously stated that “[plaintiffs’ complaint and causes of action are dismissed on the merits, with prejudice.” Plaintiff Reid attempted to remedy this overly broad order by filing a motion seeking to dismiss his vagueness claim without prejudice, thereby preserving his ability to litigate it on the merits in the event that the City later attempts to enforce the ordinance against him. The district court, however, denied Reid’s motion on the basis that the summary judgment motions had not carved out Reid’s vagueness claim. We conclude that such an approach is erroneous.' The fact remains that none of the summary judgment filings purported to include Reid’s vagueness claim and that the record is devoid of any factual or legal support for the district court’s entry of summary'judgment on that claim. The parties were not required to carve out a claim that was never even under consideration. We accordingly direct that the district court’s summary judgment order be modified to reflect that the dismissal of Reid’s vagueness claim is without prejudice.

CONCLUSION

¶ 65 In light of historical evidence, it is inconceivable that the framers of our constitution or the citizens of this state intended to protect nude dancing under the constitutional right of the freedom of speech. The framers of the Utah Constitution chose a limited construction for the freedom of speech that excepted from protection abuses of that right. This constitutional construction has a long history of preserving the power of the state to regulate speech under certain historical exceptions to that right. It was widely recognized at the time Utah’s constitution was drafted that obscene speech was one of the exceptions to constitutional freedom of speech protections. Nude dancing, in particular, was criminalized by statutes in effect both before and after our constitution was ratified by the people of this state. Therefore, the citizens of Utah, having expressed their disapprobation of such activities through such statutes, clearly would have considered nude dancing to be outside the scope of constitutionally protected communication.

¶ 66 In light of the clear disapprobation the people of our state demonstrated for activities such as nude dancing, extending free speech protections in this area would run contrary to the intent of the framers of our constitution and the Utah citizens who voted it into effect. Were we to do so, we would not be interpreting our constitution, but substituting our own value judgment for that of the people of Utah when they drafted and ratified the constitution. It is not our place to do so. Social values and public opinion on this matter no doubt fluctuate over time, and as they do, the people of this state are free to allow nude dancing through legislative enactments or even to amend our constitution to extend protections over, such activities through the democratic process. Although Chief Justice Durham argues skillfully for the protection of expression that society might find distasteful, these arguments should be directed to elected officials and expressed at the ballot box, not enforced through the courts.

¶ 67 Accordingly, we reject plaintiffs’ claims that the ordinance violates the Utah Constitution’s right to free expression. We similarly reject plaintiffs’ subsidiary claims except plaintiff Reid’s vagueness claim, which we conclude should be dismissed without prejudice. In all other respects, we affirm the decision of the district court.

¶ 68 Associate Chief Justice WILKINS and Justice DURRANT concur in Justice PARRISH’S opinion.

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

2 . Federal courts have held that the imposition of a requirement for minimal dress on dancers in sexually oriented businesses poses at most a de minimis effect on any free speech rights involved under the United States Constitution. See, e.g., Heideman v. S. Salt Lake City, 348 F.3d 1182, 1196 (10th Cir.2003) (citing City of Erie v. Pap’s A.M., 529 U.S. 277, 294, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000)). Plaintiffs in this case, however, have deliberately excluded any claims under the United States Constitution from being considered in this action.

3 . We have intentionally excluded the consideration of policy arguments suggested by Society of Separationists v. Whitehead, 870 P.2d 916, 921 n. 6 (Utah 1993). As is the case with statutory interpretation, our duty is not to judge the wisdom of the people of Utah in granting or withholding constitutional protections but, rather, is confined to accurately discerning their intent. Volker-Scowcroft Lumber Co. v. Vance; 32 Utah 74, 88 P. 896, 899 (1907) ("With the wisdom or equity of such a [constitutional] provision neither we nor the Legislature [has] anything to do.”). Policy arguments are relevant only to the extent they bear upon the discernment of that intent.

4 . Federal courts have recognized a similar obligation when interpreting the United States Constitution. See, e.g., Bell v. Maryland, 378 U.S. 226. 288-89. 84 S.Ct. 1814. 12 L.Ed.2d 822 (1964) (Goldberg, J., concurring) ("Our sworn duty to construe the Constitution requires, however, that we read it to effectuate the intent and purposes of the Framers. We must, therefore, consider the history and circumstances indicating what the [constitutional provisions] were in fact designed to achieve.”); Lake County v. Rollins, 130 U.S. 662, 671, 9 S.Ct. 651, 32 L.Ed. 1060 (1889) ("The simplest and most obvious interpretation of a constitution, if in itself sensible, is the most likely to be that meant by the people in its adoption.”); Tom v. Sutton, 533 F.2d 1101, 1105 (9th Cir.1976) ("In interpreting a constitutional provision, the fundamental principle of construction is to give the provision the effect intended by the framers and the people adopting it.”).

5 . "By the constitutions which they form, [the people] tie up alike their own hands and the hands of their agencies; and neither the officers of the State, nor the whole people as an aggregate body, are at liberty to take action in opposition to these fundamental laws.” Cooley, Constitutional Limitations, supra ¶ 13, at 28.

6 . Although we do recognize that Chief Justice Durham addresses the "abuse of that right” language, infra ¶ 124, she fails to do so until after she has examined the term "communicate,” infra ¶ 116. Indeed, Chief Justice Durham appears to reach the result that nude dancing is protected communication before even examining this "abuse” language. See infra ¶¶ 116-23.

7 . Plaintiffs argue in their brief that, because this court has granted greater protections against search and seizure under the Utah Constitution than the United States Constitution, our constitution naturally provides greater protection to the freedom of speech than does the federal constitution. This appeal to a separate clause in our constitution is unpersuasive in light of the fact that, on its face, the Utah Constitution’s freedom of speech provisions specifically accord less protection than the United States Constitution in the area of criminal libel.

8 . Prior to his appointment to the bench, Judge Michael W. McConnell of the United States Court of Appeals for the Tenth Circuit performed an extensive historical analysis of the ratification process of the Fourteenth Amendment in his article Originalism and the Desegregation Decisions, 81 Va. L.Rev. 947 (1995). He undertook the task in order to question the assumption “Aat the ahistorical quality of Brown was unavoidable, because an historical approach to the question would have produced a morally unacceptable answer.” Id. at 1140. This is the same assumption suggested by Chief Justice Durham in her dissent. Infra ¶¶ 134-35. McConnell's painstaking research and analysis concluded Aat, contrary to popular belief, "school segregation was understood during Reconstruction to violate Ae principles of equality of Ae Four-teenA Amendment.”

McConnell found that

[b]etween 1870 and 1875, boA houses of Congress voted repeatedly, by large margins, in favor of legislation premised on the Aeoiy that de jure segregation of Ae public schools is unconstitutional. The desegregation bills never became law because, for procedural reasons, a two-Airds majority of the House of Representatives was required for final passage. Even so, Ae Reconstruction Congress passed legislation prohibiting segregation of inns, Ae-aters, railroads, and other common carriers, and rejected legislation Aat would have countenanced segregated education on a separate-but-equal basis. The Court in Brown refused to "turn the clock back." But had it done so, it would have discovered strong support for its holding — stronger Aan Ae dubious “modern authority” on which Ae Court relied.

McConnell, supra note 10, at 1140. .

In McConnell's view, an historical approach would not only have been appropriate in Brown, it would have been a "powerful judicial assault on the Jim Crow laws of Ae South.” Id. at 955.

9 . Blackstone’s prohibition of prior restraints is commonly viewed as forbidding Ae establishment of a governmental body Aat censored works before they were allowed to be published. The South Salt Lake ordinance is not a prior restraint upon speech. No board of censors is established to preview dance routines and costumes in order to judge which are deemed acceptable and which are not. The ordinance simply makes it unlawful to "[a]ppear in a state of nudity before a patron on the premises of a sexually oriented business." South Salt Lake City, Utah, Mun.Code § 5.56.310 (2005).

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

11 . Blackstone’s “responsibility for abuse" language ironically first appeared in the once revolutionary Pennsylvania Constitution. 1 Friesen, supra ¶ 26, § 5-2(a). In 1790, the Federalist Party in that state replaced the radical 1776 constitution with a much "more conservative version.” Id. Overall, the 1790 constitution rejected the radically democratic ideology of the 1776 constitution and was a defeat to the liberal Whig ideology that had infused it. Ex parte Tucci, 859 S.W.2d 1, 68 (Tex.1993) (Phillips, C.J., concurring).

12 . In 1868, the North Carolina Constitution was amended to read: "The freedom of the press is one of the great bulwarks of liberty, and, therefore, ought never to be restrained, but every individual shall be held responsible for the abuse of the same." N.C. Const. art. I, § 20 (1868). Even Virginia, which had perhaps the most adamant rhetoric delineating the absolute nature of the freedom of speech in its freedom of speech clause, amended its constitution to explicitly acknowledge exceptions to even its ardent language. In 1870, Virginia amended its freedom of speech provision to read: "That the freedom of the press is one of the great bulwarks of liberty, and can never be restrained but by despotic governments; and any citizen may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right.” Va. Const. art. I, § 12 (1870).

13 . Contemporary with the passage of Utah's constitution, several states with constitutions containing similar "abuse” clause language limiting the freedom of speech recognized that limitation’s roots in English common law. For example, a scant five months after the citizens of Utah voted their constitution into effect, the California Supreme Court interpreted its very similar constitutional freedom of speech clause by acknowledging its roots in a passage from Blackstone. Dailey v. Super. Ct., 112 Cal. 94, 44 P. 458, 459-60 (1896). Several other state courts have subsequently noted this connection to their own constitutional provisions containing the abuse qualification. See State v. Jackson, 224 Or. 337, 356 P.2d 495, 499-500 (1960); William Goldman Theatres, Inc. v. Dana, 405 Pa. 83, 173 A.2d 59, 62 (1961); Tucci, 859 S.W.2d at 61 (Phillips, C.J., concurring).

14 . The proposed amendment read:

No law shall be passed to abridge or restrain the freedom of speech or of the press, but all persons shall be responsible for the abuse of the privilege.

In all trials for libel the truth may be given in evidence and shall be a sufficient defense, if it shall appear to the jury that the matter charged as libelous is true and wás published with good motives and for justifiable ends, and the jury shall have the right to determine the law and the facts. Upon instituting suit for damages for libel, plaintiff shall file bonds for costs or plead insolvency.

Proceedings, supra ¶ 13, at 320.

15 . The Salt Lake Tribune, which ironically began in 1870 under the name Mormon Tribune, quickly established itself as the voice of the non-Mormon minority in the state. West v. Thomson Newspapers, 872 P.2d 999, 1013-14 (Utah 1994). Throughout its early years, the newspaper expressed often harsh criticism of its leading competitor, the Deseret News, and the Mormon church leaders. See id. at 1013; Soc’y of Separationists, 870 P.2d at 925-26. Goodwin became the editor of The Salt Lake Tribune in 1880 and oftén criticized the Mormon church through his paper. White, supra ¶ 44, at 110. After the church officially abandoned the practice of polygamy in 1890, however, he espoused a somewhat more conciliatory stance. Id.

16 . Speaking of the common law’s influence on state constitutional provisions that protect the freedom of speech, Thomas Cooley wrote:

They do not create new rights, but their purpose is to protect the citizen in the enjoyment of those already possessed. We are at once, therefore, turned back from these provisions to the common law, in order that we may ascertain what the rights are which are thus protected, and what is the extent of the privileges they assure.

Cooley, Constitutional Limitations, supra ¶ 13, at 416-17.

The U.S. Supreme Court has also recognized this principle in interpreting the Bill of Rights:

The law is perfectly well settled that the first ten amendments to the Constitution, commonfy known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.

Robertson v. Baldwin, 165 U.S. 275, 281, 17 S.Ct. 326, 41 L.Ed. 715 (1897), partially quoted in Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 34, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991) (Scalia, J., concurring).

17 . “The common law of England, so far as it is not repugnant to, or in conflict with the constitution and laws of the United States, or the constitution and laws of this state, shall be the rule of decision in all the courts of this state.” Utah Rev. Stat. § 2488 (1898).

18 . The lack of focus on Reid’s vagueness claim in the summary judgment proceedings is probably explainable by the fact that the City had informed Reid it would not require him to obtain a sexually oriented business license. The City, however, declined to stipulate to the inapplicability of the ordinance, thereby preserving its ability to reevaluate its position at a later time.