ANN WALSH BRADLEY, J.
¶ 1. This case is before the court on certification by the court of appeals, pursuant to Wis. Stat. § (Rule) 809.61 (1995-96).1 The plaintiff, Lounge Management, Ltd. (Lounge Management), appeals from a circuit court order2 denying injunctive relief and from a declaratory judgment upholding the constitutionality of an anti-public nudity ordinance. Lounge Management contends that the dis[16]*16puted ordinance is facially overbroad as well as unconstitutional as applied. Because we find the anti-public nudity ordinance to be overbroad, in violation of the First Amendment to the United States Constitution, we reverse the judgment of the circuit court.
¶ 2. Lounge Management operates a nightclub in rural Town of Trenton (the Town), in Pierce County, pursuant to a Class B liquor license. On the date Lounge Management obtained its liquor license, the Town maintained an existing ordinance banning public nudity in "licensed establishments," (the Ordinance).3 [17]*17Five days after the Town Board approved Lounge Management's liquor license, Lounge Management decided to offer nude and semi-nude dancing at its facility. It filed suit requesting temporary and permanent injunctions against the Town, prohibiting the Town from enforcing the Ordinance. Lounge Management also sought a judgment pursuant to 42 U.S.C. § 1983 (1994) declaring the Ordinance void under the First Amendment to the United States Constitution, and Art. I, § 3 of the Wisconsin Constitution.4 The Town answered by asserting the constitutionality of the Ordinance, and later amended its answer to allege that Lounge Management's suit was brought in violation of the notice of claim requirements ofWis. Stat. § 893.80.
¶ 3. The circuit court denied Lounge Management's request for a preliminary injunction, finding it probable that the Ordinance would be declared a constitutional exercise of the Town's power to regulate nude dancing as part of the liquor licensing process. In doing so, the circuit court relied upon Schultz v. City of Cumberland, 195 Wis. 2d 554, 536 N.W.2d 192 (Ct. App. 1995) (holding municipal ordinance banning nude performances valid because state's delegation of power to regulate sale of alcohol under Twenty-first Amendment included the lesser power to ban sale of liquor in establishments with nude dancing) and City of New[18]*18port v. Iacobucci, 479 U.S. 92 (1986) (same). Also anticipating an overbreadth challenge, the circuit court followed State v. Thiel, 183 Wis. 2d 505, 515 N.W.2d 847 (1994), and narrowly construed the disputed Ordinance to apply only to establishments with liquor licenses. The Town then filed a motion to dismiss.5
¶ 4. The circuit court denied the Town's motion to dismiss, ruling that while the notice of claim provisions present in Wis. Stat. § 893.80 applied to Lounge Management's suit, "[flailure to comply with the notice requirements of Wis. Stat. § 893.80 is a defense related to personal jurisdiction and is deemed waived by the defendant's failure to raise it in its original answer." The circuit court also entered a declaratory judgment on the constitutionality of the Ordinance and reaffirmed its preliminary holding that the Ordinance, as construed, was constitutional.
¶ 5. Lounge Management appealed the circuit court's decision. Faced with what it viewed as conflicting precedent concerning the constitutionality of anti-public nudity ordinances, Fond du Lac County v. Mentzel, 195 Wis. 2d 313, 536 N.W.2d 160 (Ct. App. 1995) (finding county ordinance prohibiting nudity of entertainers during performances constitutional as applied, but facially unconstitutional due to over-breadth) and Schultz, the court of appeals certified the case to this court.
¶ 6. Having accepted certification on all issues before the court of appeals, we must first consider the [19]*19Town's claim that this suit should be dismissed due to Lounge Management's failure to file a notice of claim against the Town pursuant to Wis. Stat. § 893.80.6 We note that the plaintiff challenges the Ordinance both under the federal constitution pursuant to 42 U.S.C. § 1983 and the state constitution. Federal constitutional challenges brought under § 1983 cannot be barred by Wisconsin's notice of claim requirement. See Felder v. Casey, 487 U.S. 131 (1988) (holding application of state notice of claim provision preempted by federal civil rights claim). Accordingly, we proceed to consider Lounge Management's constitutional challenge to the Ordinance under the First Amendment.7
¶ 7. The substantive questions presented then are whether the Ordinance is unconstitutional on its face, due to overbreadth, or unconstitutional as specifically applied to Lounge Management. Both inquiries implicate the First Amendment to the United States Constitution. Such constitutional challenges are ques[20]*20tions of law which we review de novo. See Association of State Prosecutors v. Milwaukee County, 199 Wis. 2d 549, 557, 544 N.W.2d 888 (1996).
¶ 8. Statutes and ordinances normally are the beneficiaries of a presumption of constitutionality which the attacker must refute. See State v. Holmes, 106 Wis. 2d 31, 41, 315 N.W.2d 703 (1982). However, where an ordinance regulates the exercise of First Amendment rights, the burden shifts to the government to defend the constitutionality of that regulation beyond a reasonable doubt. See Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 658 (1981); Thiel, 183 Wis. 2d at 523; City of Madison v. Baumann, 162 Wis. 2d 660, 669, 470 N.W.2d 296 (1991).
¶ 9. Nude dancing has been acknowledged to include an expressive element, and accordingly is entitled to at least some degree of constitutional protection. See Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565 (1991); Id. at 581 (Souter, J., concurring); Id. at 587 (White, J., dissenting). However, it is also a recognized constitutional principle that "when 'speech' and 'non-speech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." United States v. O'Brien, 391 U.S. 367, 376 (1968).
¶ 10. In such instances, the government may infringe upon First Amendment freedoms to regulate conduct so long as: (1) the targeted conduct falls within the domain of state regulatory power; (2) the statutory scheme advances important or substantial government interests; (3) the state's regulatory efforts are unre[21]*21lated to the suppression of free expression; and (4) the regulations are narrowly tailored. See O'Brien, 391 U.S. at 376-77. The United States Supreme Court has splintered, however, over the permissible manner in which the government may reasonably regulate the protected expression inherent in nude dancing.
¶ 11. In Barnes, a plurality of the court applied the O'Brien test, but disagreed among themselves over the requisite important or substantial interest that the state needed to show under O'Brien when infringing on First Amendment expression. Three Justices, lead by Chief Justice Rehnquist, believed that the state could regulate expressive conduct to promote "public morality" based on its police powers. See Barnes, 501 U.S. at 568. Justice Souter, in concurrence, disagreed, but concluded that the state could regulate conduct implicating expression to combat the "secondary effects" that shadow establishments where public nudity occurs, such as prostitution, sexual assault, and other criminal activity. See id. at 582-83 (Souter, J., concurring).
¶ 12. Lounge Management's primary argument is that the Ordinance is so overbroad that it applies to conduct which the state is not entitled to regulate. In order to establish the framework of our overbreadth analysis of the Ordinance, we first must distill the holding of the Court in Barnes. If Chief Justice Rehnquist's view is the holding, we must evaluate the reach of the Ordinance in promoting public morality. If Justice Souter's concurrence is the holding, we must question whether the Ordinance is narrowly tailored to address only the secondary effects associated with public nudity in licensed establishments.
¶ 13. Recognizing the potential precedential problems inherent in fractured opinions, the United [22]*22States Supreme Court held in Marks v. United States, 430 U.S. 188, 193 (1977), that when the Court issues a splintered plurality decision, courts interpreting that decision should regard the opinion of the Justice concurring on the "narrowest grounds" as the Court's ultimate holding. Applying this rule to the Barnes case, we agree with the court of appeals in Mentzel that Justice Souter's concurring opinion constitutes the holding of the United States Supreme Court in Barnes. See Mentzel, 195 Wis. 2d at 326; see also Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994). Accordingly, we move to an overbreadth examination of the Town of Trenton Ordinance.
¶ 14. The First Amendment is accorded special protection in our federal constitutional framework. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 486-87 (1965), quoted in Osborne v. Ohio, 495 U.S. 103, 137 n.12 (1990). Where an otherwise appropriate content-neutral regulation is promulgated in an overly expansive fashion, it may have the collateral effect of chilling constitutionally protected expression or allowing selective enforcement that may discriminate against certain classes of people. Those unintended results are constitutionally intolerable. See id.; Richard R. Fallon, Making Sense of Overbreadth, 100 Yale L. J. 853, 867 (1991).
¶ 15. In such cases, the overbreadth doctrine serves to protect third parties' First Amendment rights. See Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987). The overbreadth doctrine operates to render facially unconstitutional statutes or ordinances that "threaten[ ] others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather [23]*23than risk prosecution or undertake to have the law declared. . .invalid." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985); see also City of Milwaukee v. Wroten, 160 Wis. 2d 207, 226, 466 N.W.2d 861 (1991).
¶ 16. Under this doctrine, a party whose own speech or conduct may be legitimately regulated by a statute or ordinance, or whose speech is not subject to constitutional protections, may assert a facial challenge to an ordinance that on its face encompasses protected speech or conduct of third parties. See Wroten, 160 Wis. 2d at 227; see also City of Milwaukee v. Nelson, 149 Wis. 2d 434, 451-52, 439 N.W.2d 562 (1989). The overbreadth doctrine "establishes an exception to the general rule that 'a person to whom a statute may be constitutionally applied cannot challenge the statute on the ground that it may be unconstitutionally applied to others.'" Thiel, 183 Wis. 2d at 520 (quoting Massachusetts v. Oakes, 491 U.S. 576, 581 (1989)).
¶ 17. In assessing this challenge, the court may consider hypothetical situations in which the statute or ordinance might reach too far. See Brandmiller v. Arreola, 199 Wis. 2d 528, 547, 544 N.W.2d 894 (1996). However, the court must be cognizant of the fact that application of the overbreadth doctrine is "strong medicine," to be used only where the alleged over-breadth of the statute or ordinance is not only real, but substantial, and "then 'only as a last resort.'" See New York v. Ferber, 458 U.S. 747, 769-70 (1982) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973)); see also Thiel, 183 Wis. 2d at 520; City of Milwaukee v. K.F., 145 Wis. 2d 24, 40, 426 N.W.2d 329 (1988).
¶ 18. Accordingly, courts must apply a limiting construction to a statute, if available, that will eliminate the statute's overreach, while still "maintain[ing] [24]*24the legislation's constitutional integrity." Thiel, 183 Wis. 2d at 521; see Broadrick, 413 U.S. at 613. Alternatively, a court may sever that portion of the statute which leads to overbreadth, leaving the statute as modified in full effect. See Thiel, 183 Wis. 2d at 520.
¶ 19. Because we determine that Justice Souter's concurrence in Barnes is the holding of the Court, we conduct our overbreadth analysis by inquiring whether the Ordinance is drafted in a manner that addresses the secondary effects of adult entertainment, such as prostitution, sexual assault, and other criminal activity, without also suffocating other protected expression in a real and substantial manner. We first examine the language of the Ordinance on its face. If we determine that it is overbroad, we then consider possible constructions of the Ordinance that may save it. After conducting this inquiry, we find that the anti-public nudity Ordinance encompasses expressive activities that do not implicate the "secondary effects" that the Town may legitimately seek to regulate.8
¶ 20. As the language of the Ordinance indicates, and as defense counsel was forced to concede at oral argument, several hypothetical situations exist in which the Ordinance would impinge on protected [25]*25expression involving public nudity. Such examples include public exhibition of artwork or artifacts depicting nudity, public display of a television program including brief nudity, and any form of expressive live nudity that occurs in a "public licensed establishment." Such establishments include private hotel rooms, campgrounds, taverns, theaters, or any other place of business, recreation, accommodation, or amusement.
¶ 21. Such overbreadth is largely the result of the generalized terminology used by the Town when drafting the Ordinance and its specific command that portions of the Ordinance be "interpreted broadly." The Ordinance does not prohibit nude dancing — it prohibits all public nudity. The Ordinance does not limit its application to establishments licensed to sell alcohol — it applies to all publicly licensed establishments.9 The Ordinance does not limit itself to live nudity — it apparently applies to all forms of nude depiction.10 Accordingly, the Ordinance regulates expressive con[26]*26duct protected by the First Amendment to the United States Constitution that has no connection to the potential harmful secondary effects arising from nude dancing in liquor licensed establishments and it does so in a real and substantial manner.
¶ 22. Despite these infirmities, we are cognizant of our obligation to apply a limiting construction to the Ordinance if such a construction is available. The Town argues that the circuit court's narrow construction of the Ordinance to apply only to nude dancing in establishments licensed to sell liquor is sufficient to save the Ordinance from an overbreadth challenge. Alternatively, following the dissent in Wroten, the dissent would have this court rewrite the Ordinance by striking a significant portion of it and construing it "to prohibit only animate public nudity at establishments licensed by the Town of Trenton to sell alcohol." Dissent at 35.
¶ 23. We disagree that either construction is sufficient to save the Ordinance. Due to the existing structure and wording of the Ordinance, we are unable to cure the overbreadth by either striking enough of the Ordinance or providing a sufficiently narrow construction that is not flatly inconsistent with the expressed intent as set forth in its existing terms. We cannot apply a limiting construction which contravenes the expressed intent of the Ordinance. See Wroten, 160 Wis. 2d at 227.
¶ 24. In its attempt to save the Ordinance, the dissent engages in legal and semantic convolutions. The futility of the dissent's attempts to save the Ordinance is particularly emphasized when it negates the plain language of the Ordinance and attempts to explain that the word "showing" does not mean "displaying" or "exhibiting." Dissent at 36. Such an [27]*27assertion defies common definition, common usage, and common sense. Yet, such an assertion is necessary for the dissent to arrive at its tortured conclusion that "showing" means "only those live acts performed by a person...." Dissent at 36.
¶ 25. Similarly futile is the dissent's attempts to explain away the Ordinance's prohibition on nudity between non-family-member consenting adults in a privately rented hotel room. An exception to the Ordinance's prohibition against "public nudity at a public licensed establishment" provides in relevant part:
This ordinance is not to be interpreted to prevent activities in rooms privately rented in a hotel. . .if the person(s) involved. . .has not invited or allowed members of the public, who are not immediate family members, to be at such location.
As long as you are an "immediate family member" this Ordinance does not apply to prevent activities in rooms privately rented in a hotel. The dissent rewrites the clause, and adds a qualification that contravenes the express language of the Ordinance, indicating that " 'public nudity' does not include the private conduct of consenting adults in private rooms where the general public is not invited or allowed to attend or to participate in such conduct." Dissent at 36-37.
¶ 26. The dissent also construes the Ordinance to apply only to establishments licensed to sell liquor. Endorsing such a construction requires the dissent to strike and construe so much of the definition that little of the original definition of "public" as in "public licensed establishment," remains:
Public means any-place of accommodation or amusement, which shall be interpreted broadly to [28]*28include, but not be limited to, places of business or recreation, hotels, motels, resorts, restaurants, taverns [licensed to serve alcohol] and any place where accommodations, amusement; goods or services are available either free or for a consideration.-Ganipgrounds are also included;
Even assuming that a presumption of severability applied to an ordinance drafted by a Town Board, see Regan v. Time, Inc., 468 U.S. 641, 653 (1984), the plain language of the Ordinance indicates an intent by the Town Board to apply the Ordinance in a far broader manner than acknowledged by the construed and severed interpretation of the dissent. Accordingly, severance is also improper. See Brockett, 472 U.S. at 506.
¶ 27. As the discussion above indicates, the proffered constructions of the Ordinance are inconsistent with the broadly drafted terms and purpose of the Ordinance. Such construction raises the specter of "judicial legislation." Wroten, 160 Wis. 2d at 234. We decline the invitation to engage in such législation and leave the task of writing a constitutionally permissible Ordinance to that branch of government where such power properly lies — the Town Board. See id.
¶ 28. Moreover, even if the acts of construing the Ordinance and striking out such a substantive portion of the Ordinance were an acceptable use of our powers to conform the Ordinance with the Constitution, such a construction must still eliminate the constitutional infirmity of the original Ordinance. However, the ultimate narrowing construction offered by the dissent retains the same basic constitutional infirmity that plagues the Ordinance as drafted.
¶ 29. Even as narrowly construed by the dissent the Ordinance continues to bar protected expression [29]*29involving nudity that does not implicate the secondary effects associated with barroom erotic nude dancing that the Town alleges was its primary objective in creating the Ordinance. Examples of artistic expression barred by the Ordinance range from the presentation of a play involving the briefest moment of a woman exposing one breast as part of the script of the production to the hypothetical productions of "Hair" and "Equus" cited by Justice Souter in Barnes, or the even more revealing production "L'apres midi d' un faune" discussed by Judge Posner in Miller v. Civil City of South Bend, 904 F.2d 1081, 1090 (7th Cir. 1990) (Posner, J. concurring), rev'd sub nom. Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991). Thus, examples of infringement upon protected expression by the Ordinance range across the artistic gamut.
¶ 30. While acknowledging that the Ordinance as construed would still bar this protected artistic expression, the dissent continues to attack our finding of overbreadth by asserting that infringement of the First Amendment in this case would not be "real and substantial." In the dissent's view the Ordinance is not a "real and substantial" constraint since a revealing production is only one hypothetical and since there are no dinner theaters or other artistic venues in which such a performance could occur in the rural Town of Trenton.
¶ 31. In making these arguments, the dissent fails to acknowledge that, as noted above, the Ordinance as construed by the dissent and the circuit court continues to target constitutionally protected activity and continues to bar all artistic expression involving nudity in all establishments licensed to sell liquor. The dissent's attempt to categorize and then generalize away the real-life examples highlighted by this and [30]*30other courts is not only short-sighted, it allows a court to reject a valid overbreadth challenge by only considering the single type of expression affected.
¶ 32. While the construction offered by the dissent may narrow the overbreadth of the Ordinance, we believe the Ordinance as construed, barring all artistic expression involving nudity at licensed establishments, continues to target and infringe upon activities entitled to First Amendment protections in a "real and substantial" manner. This is not a case where the Ordinance's "legitimate reach dwarfs its arguably impermissible application," but rather a case where its impermissible application dwarfs the Ordinance's legitimate reach. Ferber, 458 U.S. at 773. This conclusion is consistent with our decisions in City of Milwaukee v. K.F., City of Milwaukee v. Nelson, and Brandmiller v. Arreola.
¶ 33. Moreover, the dissent implicitly argues that because the Town of Trenton is a rural community, the effects of the Ordinance on nude artistic expression cannot seriously be taken as an infringement of First Amendment speech. Such a contention misses two important points. First, and most importantly, the First Amendment to the United States Constitution applies universally to all communities within our borders. A violation of the First Amendment is as troubling in a small rural community as it is in a metropolitan area. Second, the primary purpose of the overbreadth doctrine is to prevent the "chilling" of First Amendment speech. As such, the doctrine protects the rights of third parties who, in the face of restrictive legislation, might refrain from exercising their First Amendment rights for fear of criminal prosecution. See Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 634 (1980); Broadrick, 413 U.S. at [31]*31612. Thus, the business demographics of the Town of Trenton, as they currently exist, are irrelevant for purposes of our inquiry.
¶ 34. The Constitution of the United States guarantees certain freedoms and this court is bound to ensure the proper application of those freedoms. While Justices may differ on the application of the law, the court's analysis of the Ordinance at issue is not and cannot be dependent upon a personal view of the propriety or morality of the activities offered at the plaintiffs establishment.
¶ 35. To provide a construction sufficiently remedial to cure the Ordinance's overbreadth, this court would essentially be required to rewrite the Ordinance in its entirety. We decline to legislate in this manner and leave it to the Town Board to enact an Ordinance that both means what it says and comports with federal constitutional principles. The Town has failed to meet its burden in defending beyond a reasonable doubt the constitutionality of the Ordinance. Accordingly, we determine that the Ordinance is overbroad, in violation of the First Amendment to the United States Constitution, and we reverse the judgment of the circuit court.11
By the Court. — The judgment of the circuit court is reversed.