IN the SUPREME COURT of OHIO HDV CLEVELAND, LLC, Dba Larry ) Flynt's Hustler Club, ) ) Appellant, ) ) Vs. ) ) OHIO LIQUOR CONT

Supreme Court of Ohio Clerk of Court - Filed January 23, 2018 - Case No. 2018-0114

IN THE SUPREME COURT OF OHIO

HDV CLEVELAND, LLC, dba Larry ) CASE NO. Flynt’s Hustler Club, ) ) On Appeal from the Franklin County Court Appellant, ) of Appeals, Tenth Appellate District ) vs. ) ) Court of Appeals Case No. 17AP-362 OHIO LIQUOR CONTROL ) COMMISSION ) ) Appellee. )

______

MEMORANDUM IN SUPPORT OF JURISDICTION ______

J. MICHAEL MURRAY* (0019626) MIKE DEWINE *Counsel of Record Attorney General STEVEN D. SHAFRON (0039042) CHARLES E. FEBUS 0063213 BERKMAN, GORDON, MURRAY & DeVAN Assistant Attorney General 55 Public Square, Suite 2200 Charitable Law Section Cleveland, Ohio 44113 150 E. Gay St. 23rd FL (216)781-5245 Columbus, OH 43215-3400 (216) 781-8207 (facsimile) (614) 466-4513 [email protected] (614) 728-4548 (facsimile) [email protected] [email protected]

Attorneys for Appellant HDV Cleveland, Attorneys for Appellee Ohio Liquor Control LLC dba Larry Flynt’s Hustler Club Commission TABLE OF CONTENTS

Page No.

EXPLANATION OF WHY THIS CASE PRESENTS A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS OF GREAT PUBLIC INTEREST...... 1

STATEMENT OF THE CASE...... 4

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW...... 6

Proposition of Law No. 1

A court reviewing an administrative decision has the authority to reverse, modify, or vacate that decision when the penalty imposed violates the Due Process or Equal Protection Clauses of the United States or Ohio Constitutions. Henry’s Café, Inc. v. OLCC, 170 Ohio St. 233, 163 N.E.2d 678 (1959), distinguished.. . . 6

Proposition of Law No. 2

Rule 52, which prohibits entertainment that contains nudity in every venue that hold a liquor license, including theaters, nightclubs, restaurants and concert halls, is a content-based restriction of expression subject to strict scrutiny under Art. I, §11 of the Ohio Constitution...... 10

APPENDICES

Franklin County Court of Appeals Opinion (Dec. 14, 2017)

Franklin County Court of Appeals Judgment Entry (Dec. 18, 2017)

i EXPLANATION OF WHY THIS CASE PRESENTS A SUBSTANTIAL CONSTITUTIONAL QUESTION AND IS OF GREAT PUBLIC INTEREST

This case presents an important question of administrative law concerning the ability of a reviewing court to examine an administrative order and sanction under R.C. 119.12. In this case, the court of appeals affirmed the imposition of a penalty comprised of a revocation of

Appellant’s liquor license or, in lieu thereof, a $100,000 forfeiture for a single violation of OAC

4301-1-1-52 (“Rule 52"), which, HDV asserted, violated its rights to due process and equal protection.

But the court below refused to consider the merits of HDV’s constitutional claim, relying on this Court’s decision in Henry’s Café, Inc. v. Liquor Control Comm’n, 170 Ohio St. 233, 163

N.E.2d 678 (1959), which states that in an administrative appeal, “the Court of Common Pleas has no authority to modify a penalty that the agency was authorized to and did impose, on the ground that the agency abused its discretion.” It held that HDV’s

due process and equal protection arguments in this case are a thinly veiled attempt to circumvent the holding of the Supreme Court in Henry's Cafe. As an intermediate appellate court, this court is required to follow the syllabus of Henry's Cafe unless or until such reconsideration occurs. Lindner. Accordingly, we find that appellant's due process and equal protection challenges to the amount of the forfeiture are without merit.

Id. ¶ 48 (citation omitted).

The court’s determination that an unconstitutional penalty can entirely escape judicial scrutiny warrants review by this Court.

Further, the reach of Henry’s Café is not limited to appeals from the Liquor Commission; it applies to virtually all appeals taken pursuant to Chapter 119 of the Revised Code. Courts of

Appeals throughout the state have recognized that adherence to Henry’s Café can result in

1 draconian consequences, including professional license suspensions and revocations, that deprive citizens of their livelihoods and have repeatedly called on this Court to revisit its decision. The

Franklin County Court of Appeals succinctly observed:

[W]e have little or no ability to review a penalty even if it seems on the surface to be unreasonable or unduly harsh. Though she had no prior violations, appellant had her liquor license revoked, not suspended for a period of time. Perhaps the time to reconsider Henry's Cafe has arrived, but the Supreme Court of Ohio must be the court to do that reconsideration. We, as an intermediate appellate court, are required to follow the syllabus of Henry's Cafe unless or until such reconsideration occurs.

Lindner v. Ohio Liquor Control Comm'n, No. 00AP-1430,2001 WL 579808, at *5 (Ohio Ct.

App. May 31, 2001). See also Aida Enterprises, Inc. v. Ohio State Liquor Control Comm'n,

2002-Ohio-2764, ¶¶ 13-14; Goldfinger Enterprises, Inc. v. Ohio Liquor Control Comm., Franklin

App. No. 01AP–1172, 2002–Ohio–2770 at ¶ 22; id. at ¶ 28 (Deshler, J., concurring)(“ I write separately to emphasize that either Ohio Adm.Code Section 4301:1-1-52 (Rule 52) should be amended or the Supreme Court of Ohio should revisit the case of Henry's Café . . . .”); Shotz Bar

& Grill, Inc. v. Ohio Liquor Control Comm'n, 2003-Ohio-2659, ¶ 16; F & F, Inc. of Cincinnati v.

Ohio Liquor Control Comm., 2004-Ohio-5259, ¶¶ 25-26; Gehad & Mandi, Inc.v. Ohio Liquor

Control Comm’n, 2006-Ohio-3081, ¶ ¶6-7; O'Wesney v. State Bd. of Registration For Prof'l

Engineers & Surveyors, 2009-Ohio-6444, ¶¶ 72-74; Kellough v. Ohio State Bd. of Edn.,

2011-Ohio-431, ¶¶ 57-58); O'Wesney v. State Bd. of Registration For Prof'l Engineers &

Surveyors, 2009-Ohio-6444, ¶ 73.

This case presents the ideal vehicle to re-visit Henry’s Café, for the effect of the lower court’s decision is to leave administrative discretion wholly unchecked and penalties completely insulated from judicial review, irrespective of their constitutionality, harshness, or severity.

2 Second, the case presents a substantial constitutional question under under Art. I, §11 of the Ohio Constitution, namely, whether Rule 52, which prohibits any entertainment that contains

“nudity”– broadly defined to include even costumes depicting body parts– in all theaters, comedy clubs, and other premises that have a liquor license, is constitutional.

This Court has never addressed Rule 52's constitutionality under Art. I, §11, and all of the opinions addressing the constitutionality of the former and current iterations of Rule 52 under the

First Amendment to the United States Constitution, both in state court and in federal court, predated the Supreme Court’s decision in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015), which represented a sea change in determining whether or not a speech regulation is content-based.1

Under Reed, if a law regulating expression is content-based, it must be subjected to strict scrutiny, even if it has a content-neutral purpose. Reed, 135 S.Ct. at 2227. See also State ex rel.

1This Court upheld a former version of Rule 52 under the First Amendment in Salem v. Liquor Control Comm., 34 Ohio St.2d 244, 298 N.E.2d 138 (1973), which version was later was declared unconstitutional by the federal court in J.L. Spoons v. City of Brunswick, 181 F.R.D. 354 (N.D. Ohio 1998). After the federal court’s decision, the Commission promulgated a new version of Rule 52, which was preliminarily, and later permanently, enjoined as unconstitutional under the First Amendment. J.L Spoons, Inc. v. O’Connor, 194 F.R.D. 589 (N.D. Ohio 2000). Four years later, the Commission adopted the current version of Rule 52. Its constitutionality under the First and Fourteenth Amendments was litigated in the federal courts for a decade. See J.L. Spoons v. Morkel, 2007 WL 14581 (N.D. Ohio 2007), rev’d sub nom., J.L. Spoons, Inc. v. Dragani, 538 F.3d 379 (6th Cir. 2008), cert. denied, 558 U.S. 815 (2009), on remand, J.L. Spoons v. Collins-Taylor, 2012 WL 3370184 (N.D. Ohio 2012), rev’d sub nom., J.L. Spoons, Inc. v. Ohio Dept. of Public Safety, 509 Fed. Apx. 464 (6th Cir .2012), on remand, J.L. Spoons, Inc. v. Ohio Dept. of Public Safety, 31 F.Supp.3d 933 (N.D. Ohio 2014). The ultimate conclusion of that litigation was that Rule 52 passed muster as a content-neutral restriction. An appeal from the district court’s last decision was taken and later dismissed. See also 161 Dublin, Inc. v. Ohio State Liq. Cont. Comm’n, 2001-Ohio-8863( holding former version of Rule 52 unconstitutional under First Amendment); WCI, Inc. v. Ohio Liquor Control Comm’n, 2016-Ohio-4778, appeal not allowed, 148 Ohio St.3d 1410, 69 N.E.3d 750, 2017-Ohio-573(relying on J.L. Spoons and sustaining Rule 52 under First and Fourteenth Amendments).

3 Ethics First-You Decide Ohio Political Action Comm. v. DeWine, 2016-Ohio-3144, ¶ 23, 147

Ohio St. 3d 373, 378, 66 N.E.3d 689, 694–95;In re Judicial Campaign Complaint Against

O'Toole, 2014-Ohio-4046, ¶ 19, 141 Ohio St. 3d 355, 361, 24 N.E.3d 1114, 1121; Disciplinary

Counsel v. Tamburrino, 2016-Ohio-8014, ¶ 18, 151 Ohio St. 3d 148, 152, 87 N.E.3d 158, 164, reconsideration denied, 2016-Ohio-8492, 147 Ohio St. 3d 1480, 66 N.E.3d 766, cert. denied 137

S. Ct. 2170 (2017).

The determination by the court of appeals that Rule 52 passed muster under Art. I, §11 was wrong because first, it ignored the broader and independent protection granted to expression under Ohio’s Constitution. Even when this Court looks to federal court decisions for guidance in deciding questions under the Ohio Constitution, those opinions do not control its independent analyses in interpreting that document. State v. Mole, 149 Ohio St.3d 215, 2016-Ohio-5124, 74

N.E.3d 368 at ¶ 21, citing Doe v. State, 189 P.3d 999, 1007 (Alaska 2008). Second, it was wrong because the federal decisions on which it relied in sustaining the regulation were based on the analyses and conclusions reached in earlier, pre-Reed decisions.

A decision from this Court that addresses the scope of Ohio’s constitutional protection against content-based speech laws and regulations would well serve the citizens of Ohio.

STATEMENT OF THE CASE

HDV Cleveland, LLC, dba Larry Flynt’s Hustler Club, was charged, in two cases, with violating Sections (B)(2) and (3) of Ohio Admin. Code 4301:1-1-52 (“Rule 52”), which prohibit, respectively, nudity, and sexual activity as defined in Chapter 2907 of the Revised Code, in liquor permit premises. The two cases arose out of expressive dance performances presented at the club on February 7, 2015, in the case of the first charge, and August 29, 2015, for the second.

4 HDV contested the first charge and after hearing the evidence, the Commission decided that the Division of Liquor Control had failed to prove the violation of the Rule and dismissed that charge. As to the second charge, the Division dismissed the sexual activity allegation, HDV entered a denial to the nudity violation and stipulated to the content of the agent’s report.

HDV, which has held a liquor permit since May 2010, pointed out in mitigation that it had been before the Commission only one other time, in February 2015. At that time, a violation notice that charged a violation of Rule 52 as having taken place in November of 2013 was dismissed. It also denied, with a stipulation, three other violations of Rule 52 that had occurred between June and October 2014, all of which were consolidated for purposes of punishment, and were disposed of with a single, concurrent punishment, a forfeiture of $10,000.00 in lieu of a revocation. Since 2014, HDV’s history before the Commission is the single violation in this case.

The record also illustrated the practices HDV had in place to prevent a violation of Rule

52 from occurring in the first instance, as well as the additional steps it had taken since the citation was issued in this case to prevent subsequent violations of the Rule. Before entering onto the club’s floor, entertainers are examined to ensure that they are properly covered, including that they have pasties on. They are monitored throughout the time they are there; if an entertainer is seen without pasties after entering the floor area, they are supplied. Cameras monitor the dances in real time and if anything inappropriate is seen, whether on the part of a customer or an entertainer, a floor manager or other employee is immediately notified to take remedial action. In addition, patrolling personnel are also present to stop inappropriate activity by a patron or entertainer. HDV also asserted that Rule 52's prohibitions were unconstitutional on their face and as applied under Art. I, §11 of the Ohio Constitution.

5 The Commission decided HDV had violated Rule 52's nudity provision and imposed a penalty consisting of a revocation of its liquor license or a forfeiture of $100,000 in lieu of revocation.

HDV appealed to the common pleas court and asserted that Rule 52 was unconstitutional under Art. I, §11 of the Ohio Constitution and that the penalty violated its rights to due process and equal protection under the United States and Ohio Constitutions. It also moved to supplement the administrative record with evidence concerning the unconstitutionality of the forfeiture and of Rule 52. The common pleas court denied the motion to supplement the record and rejected each of HDV’s constitutional arguments. The court of appeals affirmed.2

ARGUMENT IN SUPPORT OF PROPOSITIONS OF LAW

Proposition of Law No. 1

Judicial review of an administrative decision is governed by R.C. 119.12(M), which states:

The court may affirm the order of the agency complained of in the appeal if it finds, upon consideration of the entire record and any additional evidence the court has admitted, that the order is supported by reliable, probative, and substantial evidence and is in accordance with law. In the absence of this finding, it may reverse, vacate, or modify the order or make such other ruling as is supported by reliable, probative, and substantial evidence and is in accordance with law.

2 In addressing the denial of the motion to supplement the administrative record, the court of appeals only addressed the motion as it related to the constitutionality of Rule 52. It did not address the propriety of denying HDV’s motion as it related to evidence that the $100,000 forfeiture was unconstitutional.

6 Id.

This Court noted, in Henry’s Café, that

Unquestionably, the Court of Common Pleas may reverse, vacate or modify an order of an agency unless it finds that the order is supported by reliable, probative and substantial evidence,2 but, where it makes such a finding, it can only affirm and cannot reverse, vacate or modify.

Id. at 236, 163 N.E.2d 680. Significantly, in footnote 2, it pointed out there was no claim that the decision being challenged was contrary to law: “There is no claim here that the finding of the

Common Pleas Court is not ‘in accordance with law,’ and for purposes of simplification we have therefore eliminated that phrase from consideration.” Id.

Thus, in accordance of the foregoing, syllabus 3 of the opinion reads:

On such appeal, the Court of Common Pleas has no authority to modify a penalty that the agency was authorized to and did impose, on the ground that the agency abused its discretion.

Id.

Nowhere in Henry’s Café, or in any subsequent opinion, has this Court held that an administrative decision cannot be vacated, modified, or reversed when the penalty imposed is unconstitutional and thus, contrary to law. Nonetheless, because the syllabus of this Court’s opinions set out the applicable law when Henry’s Café was decided, the courts of appeals have expansively applied it without recognizing that limitation. Simply put, Henry’s Café does not preclude a reviewing court from addressing the unlawfulness or unconstitutionality of a penalty imposed by an administrative agency, such as the Commission, under the Due Process or Equal

Protection Clauses of the federal and Ohio Constitutions. This Court should review this case to clarify Henry’s Cafe.

7 Sanctions for violating the Commission’s rules are designed, in part, to deter future wrongdoing and to punish the permit holder for past wrongdoing, and thus, are akin to punitive damages, which operate as private fines. See FOE Aerie 2347 v. Ohio State Liquor Control

Comm., 10th Dist. Franklin No. 01AP-675, 2001 WL 1654475 at 9; Cooper Industries v.

Leatherman Tool Group, Inc., 532 U.S. 424, 432 (2001); Hudson v. United States, 522 U.S. 93,

102 (1997)(“all civil penalties have some deterrent effect”); Austin v. United States, 509 U.S.

602, 622(1963)(like fines, forfeitures are “payment to a sovereign as punishment for some offense”)(internal citation omitted).

The Due Process Clause of the Fourteenth Amendment cabins the ability to impose substantial civil punitive damage awards to punish a party:

Despite the broad discretion that States possess with respect to the imposition of criminal penalties and punitive damages, the Due Process Clause of the Fourteenth Amendment to the Constitution imposes substantive limits on that discretion. That Clause makes the Eighth Amendment’s prohibition against excessive fines and cruel and unusual punishment applicable to the States. The Due Process Clause of its own force also prohibits the States from imposing ‘grossly excessive’ punishments on tortfeasors.

Cooper Industries, 532 U.S. at 433-34 (internal citations omitted).

In a series of cases beginning with BMW of North America v. Gore, 517 U.S. 559 (1996), the Supreme Court vacated massive punitive damage awards for their failure to comport with due process. Under the standard enunciated in BMW, and reiterated in Cooper Industries and in State

Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003), a punitive damage award violates due process when three factors are considered in relation to the amount of the sanction: a) the degree of reprehensibility of the penalized party’s actions; b) the disparity between the harm or potential harm suffered and the punitive damages award; and, c) the difference between

8 the sanction imposed by the jury and the penalties authorized or imposed for comparable conduct. Id. at 575.

In this case, the $100,000 penalty that the Commission imposed exceeds constitutional standards enunciated in Gore and its progeny. When one looks at the reprehensibility of the conduct at issue, put simply, an independent contractor entertainer at HDV’s club, whose nipple and areaola area were uncovered, performed a lap dance for an undercover officer during the course of which she also displayed her private parts. That was the basis for the Rule 52 nudity violation and the staggering $100,000 forfeiture the Commission imposed.

The second factor, the disparity between the harm caused by the violation and the penalty imposed, also illustrates that the $100,000 forfeiture exceeded constitutional standards, for there was no substantial harm that arose from the single dance performance which included nudity.

With regard to the third BMW factor, when one examines penalties for which a comparable punishment is authorized by law, it becomes clear that the Commission’s order is unconstitutionally excessive. The closest comparable provision in the law to Rule 52 that prohibits similar conduct is Ohio’s public indecency statute, Ohio Rev. Code §2907.09(A). That statute makes it a crime for someone to “recklessly. . . under circumstances in which the person’s conduct is likely to be viewed by and affront others who are in the person’s physical proximity and who are not members of the person’s household: (1) Expose the person’s private parts; (2)

Engage in sexual conduct or masturbation; (3) Engage in conduct that to an ordinary observer would appear to be sexual conduct or masturbation.” Id. Unlike the criminal statute, however, a permit holder can violate Rule 52 even if someone in close physical proximity is not affronted.

A violation of the public indecency statute, when a minor is not involved, is a

9 misdemeanor of the 4th degree for a first offense and elevates by one degree for each subsequent offense until it reaches the level of a first degree misdemeanor. The maximum organizational penalty for a fourth degree misdemeanor is $2,000– 50 times less than the sanction imposed by the Commission. A fourth public indecency offense– because the degree of offense elevates after each conviction– is a first degree misdemeanor, and the maximum fine that can be imposed is

$5,000– 20 times less than the forfeiture ordered by the Commission. Ohio Rev. Code §2929.31.

Instead, the Commission imposed a $100,000 fine, which is the same as the maximum fine a court can impose on a corporation for aggravated murder! R.C. §2929.31(A)(1).3

Believing itself precluded from addressing the constitutional issue presented, the court of appeals refused to consider the merits of HDV’s contention that the penalty of revocation or a

$100,000 forfeiture that the Commission imposed for the single violation of Rule 52 was unconstitutional.

This case thus presents an important issue on which this Court should give guidance to the lower courts.

Proposition of Law No. 2

The textual language granting protection to expression under Art. I,§11 of the Ohio

Constitution is, on its face, broader than that granted by the First Amendment, and historically has

3HDV also proffered evidence, based on information supplied by the Commission, that the sanction exceeded by many orders of magnitude forfeitures that the Commission had imposed for repeated Rule 52 nudity and sexual activity violations over the previous 5 years.

10 been so.4 The first clause of Ohio’s guarantee is an affirmative confirmation of the right accorded to citizens to freely speak on all subjects, something that the text of federal Constitution does not grant. The second clause of Art. I, §11 provides a separate mechanism to protect speech by prohibiting the government from enacting laws that abridge and restrain the liberty of speech.

To that end, in the defamation context, this Court has held Ohio’s free speech provision to be more protective than the First Amendment. Scott v. News Herald, 25 Ohio St. 3d 243,

2001-Ohio-1293, 496 N.E.2d 699 (1986); Vail v. The Plain Dealer Publishing Co., 72 Ohio St. 3d

279, 1995-Ohio-187, 649 N.E.2d 182(1995); Wampler v. Higgins, 93 Ohio St. 3d 111,

2001-Ohio-1293, 752 N.E.2d 962 (2001).

The textual differences between the federal Constitution and the broader protection afforded expression under the Ohio Constitution, is sufficient, by itself, to come to a different conclusion than the federal courts and to hold that Rule 52 is unconstitutional under Art. I, §11.

But there is an additional reason to conclude Rule 52 is unconstitutional as well, namely, that the federal court decisions relied on by the court of appeals below that address the constitutionality of both the former and current iterations of Rule 52, all considered the constitutionality of Rule 52 under intermediate, rather than strict scrutiny, and do not survive the

United States Supreme Court’s decision in Reed v. Town of Gilbert, 135 S.Ct. 2218 (2015). Reed unequivocally rejected the proposition of law, on which the decision below rested, that a benign purpose can save a content-based speech regulation from being subjected to strict, rather than intermediate, scrutiny. Champion v. Kentucky, 530 S.W.3d 331, 336 (2017)(“Reed can be seen as

4 Article I, §11 provides, in pertinent part, “Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press.”

11 a paradigm shift in the interpretation of public-speech legislation”); Blitch v. City of Slidell,260

F.Supp.3d 656, 666 (E.D. La.)(“Reed v. Town of Gilbert then worked a sea change in First

Amendment law.”);Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015); Free Speech Coalition v.

Attorney General, 825 F.3d 149, 160 (3rd Cir. 2016)(recognizing that Reed represented a fundamental shift in the constitutional analysis and required strict, not intermediate, scrutiny in reviewing two criminal statutes ostensibly aimed at combating child pornography).

Justice Thomas, writing for the Court in Reed, described the mode of analysis in deciding whether a law is content-based:

A law that is content based on its face is subject to strict scrutiny regardless of the government's benign motive, content-neutral justification, or lack of ‘animus toward the ideas contained’ in the regulated speech. Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 429, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). We have thus made clear that “ ‘[illicit legislative intent is not the sine qua non of a violation of the First Amendment,’ ” and a party opposing the government “need adduce ‘no evidence of an improper censorial motive.’ ” Simon & Schuster, supra, at 117, 112 S.Ct. 501. Although ‘a content-based purpose may be sufficient in certain circumstances to show that a regulation is content based, it is not necessary.’ Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In other words, an innocuous justification cannot transform a facially content-based law into one that is content- neutral.

That is why we have repeatedly considered whether a law is content neutral on its face before turning to the law's justification or purpose. See,e.g.. Sorrell v. IMS Health, Inc., 564 U.S. ––––, 131 S.Ct. 2653, 2663–2664, 180 L.Ed.2d 544 (2011).

Id. at 2228 (boldface added, italics original). Under Reed, a court must first look at “whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys.”If it does, that ends the inquiry. Id. at 2227.

Under Reed’s formulation, Rule 52 is a content-based restriction, and thus subject to strict

12 scrutiny under the Ohio Constitution. The very title of the regulation is “Entertainment- prohibition against improper conduct.” Entertainment, by definition communicates a message; it is expressive, and expression that is designed to entertain is constitutionally protected as much as expression designed to inform: “‘The line between the informing and the entertaining is too elusive for the protection of that basic right [a free press]. Everyone is familiar with instances of propaganda through fiction. What is one man's amusement, teaches another's doctrine.’” Joseph

Burstyn, Inc. v. Wilson, 343 U.S. 495, 501 (1952), quoting Winters v. New York, 333 U.S. 507,

510 (1948).

The conclusion that Rule 52 is content-based is buttressed by the broad definition of

“nudity.” For, rather than confining the definition to its ordinary meaning, Rule 52 includes as

“nudity” the donning of a costume or covering that gives “the appearance of” “or simulates” the genitals, pubic hair, natal cleft, perineum anal region or pubic hair region. It likewise applies to any covering over the nipple that simulates and gives the realistic appearance of the nipple and/or areola. Id. Costumes are expressive and communicate a message by those wearing them. See

Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197, 206 (2nd Cir. 2004); Tindle v. Caudell, 56 F.3d 966, 969 (8th Cir. 1995).

The court of appeals, citing Flaningan’s Ent. v. Sandy Springs, 703 Fed.Appx. 929 (11th

Cir. 2017), concluded that Reed did not expressly abrogate the secondary effects doctrine under the First Amendment, and sustained the regulation applying intermediate scrutiny. But the

Flanigan’s court recognized that Reed substantially undermined the secondary effects doctrine:

There is no question that Reed has called into question the reasoning undergirding the secondary-effects doctrine. . . .The majority opinion in Reed, of course, rejected the lower court's reliance on the sign code's justification in conducting

13 content-neutrality analysis; the Court also declared that content-based laws should be subjected to strict scrutiny.

But significantly, the majority opinion in Reed did not address the secondary-effects doctrine. For this reason alone, we cannot read Reed as abrogating either the Supreme Court's or this Circuit's secondary-effects precedents.

Id. at 935. Appellant here submits that Reed did not simply undermine the rationale of the secondary effects doctrine, but effectively overruled it.

In this case, the court of appeals below expressed “no opinion whether Rule 52 would pass muster under strict scrutiny.” Id. at ¶35 n.5.

This Court should hold that content-based speech laws are subject to strict scrutiny under

Art. I, §11 of the Ohio Constitution, and remand the case for a determination as to whether Rule

52 passes muster under that standard.

Respectfully submitted,

/s/ J. Michael Murray J. MICHAEL MURRAY (0019626) Counsel of Record [email protected] STEVEN D. SHAFRON (0039042) [email protected] BERKMAN, GORDON, MURRAY & DeVAN 55 Public Square, Suite 2200 Cleveland, OH 44113 Phone: (216) 781-5245 Fax: (216) 781-8207

Attorneys for Appellant

14 CERTIFICATE OF SERVICE

A copy of the foregoing Memorandum in Support of Jurisdiction was served upon Mike

DeWine, Attorney General, Charles E. Febus, Assistant Attorney General, Charitable Law

Section, 150 E. Gay St. 23rd Floor, Columbus, OH 43215-3400, by regular U.S. mail, sufficient postage prepaid, this 23rd day of January, 2018.

/s/ J. Michael Murray J. MICHAEL MURRAY (0019626) [email protected] STEVEN D. SHAFRON (0039042) [email protected] BERKMAN, GORDON, MURRAY & DeVAN

Attorneys for Appellant