124 S.Ct. 2219 Page 1 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 541 U.S. 774, 124 S.Ct. 2219)
judgment and filed opinion, in which Justice Kennedy joined. Briefs and Other Related Documents Justice Scalia concurred in judgment and filed opin- Supreme Court of the United States ion. CITY OF LITTLETON, COLORADO, Petitioner, v. West Headnotes Z.J. GIFTS D-4, L.L.C., a Limited Liability Com- pany, dba Christal's. [1] Constitutional Law 90.4(1) No. 02-1609. 92k90.4(1) Most Cited Cases For an "adult business" licensing scheme to satisfy Argued March 24, 2004. First Amendment requirements, it is not enough that Decided June 7, 2004. licensing scheme provides only assurance of speedy access to courts for review of adverse licensing de- Background: Owner of store that sold adult books cisions, without also providing assurance of speedy brought § 1983 action challenging city's adult busi- court decision; delay in issuing judicial decision, no ness licensing ordinance as unconstitutional, and less than delay in obtaining access to court, can pre- seeking declaratory and injunctive relief, attorney vent license for First Amendment-protected business fees and damages. The United States District Court from being issued within requisite reasonable period for the District of Colorado, Edward W. Nottingham, of time. U.S.C.A. Const.Amend. 1. J., entered summary judgment in favor of city, and owner appealed. The Tenth Circuit Court of Appeals, [2] Constitutional Law 90.4(1) Lucero, Circuit Judge, 311 F.3d 1220, affirmed in 92k90.4(1) Most Cited Cases part and reversed in part. Certiorari was granted. [2] Public Amusement and Entertainment Holdings: The Supreme Court, Justice Breyer, held 9(1) that: 315Tk9(1) Most Cited Cases (1) for an "adult business" licensing scheme to satisfy (Formerly 376k3 Theaters and Shows) First Amendment requirements, it is not enough that Where city's "adult business" licensing scheme licensing scheme provides only assurance of speedy simply conditioned operation of adult business on access to courts for review of adverse licensing de- compliance with neutral and nondiscretionary criteria cisions, without also providing assurance of speedy and did not seek to censor content, language in ordin- court decision; but ance providing for judicial review of adverse licens- (2) where city's "adult business" licensing scheme ing decisions in accordance with state's ordinary re- simply conditioned operation of adult business on view procedures was sufficient to satisfy First compliance with neutral and nondiscretionary criteria Amendment requirements, as long as courts remained and did not seek to censor content, language in ordin- sensitive to need to prevent First Amendment harms ance providing for judicial review of adverse licens- and administered those review procedures accord- ing decisions in accordance with state's ordinary re- ingly; whether courts have done so is matter normally view procedures was sufficient to satisfy First fit for case-by-case determination rather than facial Amendment requirements. challenge. U.S.C.A. Const.Amend. 1. Reversed. [3] Constitutional Law 90.4(1) Justice Stevens concurred in part and concurred in 92k90.4(1) Most Cited Cases judgment and filed opinion. Where regulation simply conditions operation of adult business on compliance with neutral and Justice Souter concurred in part and concurred in nondiscretionary criteria and does not seek to censor
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 2 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 541 U.S. 774, 124 S.Ct. 2219) content, adult business is not entitled under First cial, as well as administrative, delay. A delay in issu- Amendment to unusually speedy judicial decision, of ing a judicial decision, no less than a delay in obtain- the Freedman type, on adverse licensing decision. ing access to a court, can prevent a license from be- U.S.C.A. Const.Amend. 1. ing "issued within a reasonable period of time." Ibid. **2220 *774 Syllabus [FN*] Nothing in the opinion suggests the contrary. Pp. FN* The syllabus constitutes no part of the 2222-2224. opinion of the Court but has been prepared by the Reporter of Decisions for the con- (b) However, the Court accepts the city's claim that venience of the reader. See United States v. Colorado law satisfies any "prompt judicial determin- Detroit Timber & Lumber Co., 200 U.S. ation" requirement, agreeing that the Court should 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. modify FW/PBS, withdrawing its implication that Under petitioner city's "adult business license" ordin- Freedman's special judicial review rules--e.g., strict ance, the city's decision to deny a license may be ap- time limits--apply in this case. Colorado's ordinary pealed to the state district court pursuant to Colorado "judicial review" rules suffice to assure *775 a Rules of Civil Procedure. Respondent Z.J. Gifts D-4, prompt judicial decision, as long as the courts remain L.L.C. (hereinafter ZJ), opened an adult bookstore in sensitive to the need to prevent First Amendment a place not zoned for adult businesses. Instead of ap- harms and administer **2221 those procedures ac- plying for a license, ZJ filed suit attacking the ordin- cordingly. And whether the courts do so is a matter ance as facially unconstitutional. The Federal District normally fit for case-by-case determination rather Court rejected ZJ's claims, but the Tenth Circuit held, than a facial challenge. Four considerations support as relevant here, that state law does not assure the this conclusion. First, ordinary court procedural rules constitutionally required "prompt final judicial de- and practices give reviewing courts judicial tools suf- cision." ficient to avoid delay-related First Amendment harm. Indeed, courts may arrange their schedules to "acceler- Held: The ordinance meets the First Amendment's re- ate" proceedings, and higher courts may grant exped- quirement that such a licensing scheme assure prompt ited review. Second, there is no reason to doubt state judicial review of an administrative decision denying judges' willingness to exercise these powers wisely so a license. Pp. 2222-2226. as to avoid serious threats of delay-induced First Amendment harm. And federal remedies would (a) The Court rejects the city's claim that its licensing provide an additional safety valve in the event of any scheme need only provide prompt access to judicial such problem. Third, the typical First Amendment review, but not a "prompt judicial determination," of harm at issue here differs from that at issue in Freed- an applicant's legal claim. The city concedes that man, diminishing the need in the typical case for pro- Freedman v. Maryland, 380 U.S. 51, 59, 85 S.Ct. cedural rules imposing special decisionmaking time 734, 13 L.Ed.2d 649, in listing constitutionally neces- limits. Unlike in Freedman, this ordinance does not sary "safeguards" applicable to a motion picture cen- seek to censor material. And its licensing scheme ap- sorship statute, spoke of the need to assure a "prompt plies reasonably objective, nondiscretionary criteria final judicial decision," but adds that Justice unrelated to the content of the expressive materials O'CONNOR's controlling plurality opinion in FW/ that an adult business may sell or display. These cri- PBS, Inc. v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 teria are simple enough to apply and their application L.Ed.2d 603, which addressed an adult business li- simple enough to review that their use is unlikely in censing scheme, did not use the word "decision," in- practice to suppress totally any specific item of adult stead speaking only of the "possibility of prompt judi- material in the community. And the criteria's simple cial review," id., at 228, 110 S.Ct. 596 (emphasis ad- objective nature means that in the ordinary case, judi- ded). Justice O'CONNOR's FW/PBS opinion, cial review, too, should prove simple, hence expedi- however, points out that Freedman's "judicial re- tious. Finally, nothing in FW/PBS or Freedman re- view" safeguard is meant to prevent "undue delay," quires a city or State to place judicial review safe- 493 U.S., at 228, 110 S.Ct. 596, which includes judi-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 3 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 541 U.S. 774, 124 S.Ct. 2219) guards all in the city ordinance that sets forth a li- I censing scheme. Pp. 2224-2226. Littleton, Colorado, has enacted an "adult business" ordinance that requires an "adult bookstore, adult 311 F.3d 1220, reversed. novelty store *777 or adult video store" to have an "adult business license." Littleton City Code §§ BREYER, J., delivered the opinion of the Court, in 3-14-2, 3-14-4 (2003), App. to Brief for Petitioner which REHNQUIST, C. J., and O'CONNOR, 13a-20a, 23a. The ordinance defines "adult business"; THOMAS, and GINSBURG, JJ., joined, in which it requires an applicant to provide certain basic in- STEVENS, J., joined as to Parts I and II-B, and in formation about the business; it insists upon compli- which SOUTER and KENNEDY, JJ., joined except ance with local "adult business" (and other) zoning as to Part II-B. STEVENS, J., filed an opinion con- rules; it lists eight specific circumstances the pres- curring in part and concurring in the judgment, post, ence of which requires the city to deny a license; and p. 2226. SOUTER, J., filed an opinion concurring in it sets forth time limits (typically amounting to about part and concurring in the judgment, in which 40 days) within which city officials must reach a final KENNEDY, J., joined, post, p. 2227. SCALIA, J., licensing decision. §§ 3-14-2, 3-14-3, 3-14-5, 3-14-7, filed an opinion concurring in the judgment, post, p. 3-14-8, id., at 13a-30a. The ordinance adds that the 2228. final decision may be "appealed to the [state] district J. Andrew Nathan, Denver, CO, for petitioner. court pursuant to Colorado rules of civil procedure 106(a)(4)." § 3-14-8(B)(3), id., at 30a. Douglas R. Cole, for Ohio, et al., as amici curiae, by special leave of the Court, supporting the petitioner. In 1999, the respondent, a company called Z.J. Gifts D-4, L.L.C. (hereinafter ZJ), opened a store that sells Michael W. Gross, Denver, CO, for respondent. "adult books" in a place not zoned for adult busi- nesses. Compare Tr. of Oral Arg. 13 (store "within J. Andrew Nathan, Counsel of Record, Heidi J. Hug- 500 feet of a church and day care center") with § dahl, Nathan, Bremer, Dumm & Myers P.C., Denver, 3-14-3(B), App. to Brief for Petitioner 21a CO, Larry W. Berkowitz, City Attorney, Brad D. (forbidding adult businesses at such locations). In- Bailey, Assistant City Attorney, Littleton, CO, Scott stead of applying for an adult business license, ZJ D. Bergthold, Law Office of Scott D. Bergthold, brought this lawsuit attacking Littleton's ordinance as P.L.L.C., Chattanooga, TN, for petitioner. unconstitutional on its face. The Federal District Court rejected ZJ's claims; but on appeal the Court of Arthur M. Schwartz, Counsel of Record, Michael W. Appeals for the Tenth Circuit accepted two of them, Gross, Cindy D. Schwartz, Schwartz & Goldberg, 311 F.3d 1220, 1224 (2002). The court held that Col- P.C., Denver, Colorado, for Respondent. orado law "does not assure that [the city's] license de- Justice BREYER delivered the opinion of the Court. cisions will be given expedited [judicial] review"; hence it does not assure the "prompt final judicial de- *776 In this case we examine a city's "adult business" cision" that the Constitution demands. Id., at 1238. It licensing ordinance to determine whether it meets the also held unconstitutional another ordinance provi- First Amendment's requirement that such a licensing sion (not now before us) on the ground that it scheme assure prompt judicial review of an adminis- threatened lengthy administrative delay--a problem trative decision denying a license. See **2222FW/ that the city believes it has cured by amending the or- PBS, Inc. v. Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 dinance. Compare id., at 1233-1234, with § 3-14-7, L.Ed.2d 603 (1990); cf. Freedman v. Maryland, 380 App. to Brief for Petitioner 27a-28a, and Brief for Pe- U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). We titioner 3. Throughout these proceedings, ZJ's store conclude that the ordinance before us, considered on has continued to operate. its face, is consistent with the First Amendment's de- mands. *778 The city has asked this Court to review the Tenth Circuit's " judicial review" determination, and
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 4 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 541 U.S. 774, 124 S.Ct. 2219) we granted certiorari in light of lower court uncer- it takes place under procedural safeguards designed tainty on this issue. Compare, e.g., 311 F.3d, at 1238 to obviate the dangers of a censorship system." Id., at (First Amendment requires prompt judicial determin- 58, 85 S.Ct. 734. The Court added that those safe- ation of license denial); Nightclubs, Inc. v. Paducah, guards must include (1) strict time limits leading to a 202 F.3d 884, 892-893 (C.A.6 2000) (same); Baby speedy administrative decision and minimizing any Tam & Co. v. Las Vegas, 154 F.3d 1097, 1101-1102 "prior restraint"-type effects, (2) burden of proof (C.A.9 1998) (same); 11126 Baltimore Blvd., Inc. v. rules favoring speech, and (3) (using language relev- Prince George's County, 58 F.3d 988, 998- 1001 ant here) a "procedure" that will "assure a prompt fi- (C.A.4 1995) (en banc) (same), with Boss Capital, nal judicial decision, to minimize the deterrent effect Inc. v. Casselberry, 187 F.3d 1251, 1256-1257 of an interim and possibly erroneous denial of a li- (C.A.11 1999) (Constitution requires only prompt ac- cense." Id., at 58-59, 85 S.Ct. 734 (emphasis added). cess to courts); TK's Video, Inc. v. Denton County, 24 F.3d 705, 709 (C.A.5 1994) (same); see also Thomas In FW/PBS, the Court considered the First Amend- v. Chicago Park Dist., 534 U.S. 316, 325-326, 122 ment's application to a city ordinance that "regulates S.Ct. 775, 151 L.Ed.2d 783 (2002) (noting a Circuit sexually oriented businesses through a scheme incor- split); City News & Novelty, Inc. v. Waukesha, 531 porating zoning, licensing, and inspections." 493 U.S. 278, 281, 121 S.Ct. 743, 148 L.Ed.2d 757 U.S., at 220-221, 110 S.Ct. 596. A Court majority (2001) (same). held that the ordinance violated the First Amendment because it did not impose strict administrative time II limits of the kind described in Freedman. In doing so, The city of Littleton's claims rest essentially upon three Members of the Court wrote that "the full pro- two arguments. First, this Court, in applying the First cedural protections set forth in Freedman are not re- Amendment's **2223 procedural requirements to an quired," but that nonetheless such a licensing scheme "adult business" licensing scheme in FW/PBS, found must comply with Freedman's "core that the First Amendment required such a scheme to policy"--including (1) strict administrative time limits provide an applicant with "prompt access" to judicial and (2) (using language somewhat different from review of an administrative denial of the license, but Freedman's)"the possibility of prompt judicial re- that the First Amendment did not require assurance view in the event that the license is erroneously of a "prompt judicial determination" of the applic- denied." 493 U.S., at 228, 110 S.Ct. 596 (opinion of ant's legal claim. Second, in any event, Colorado law O'CONNOR, J.) (emphasis added). Three other satisfies any "prompt judicial determination" require- Members of the Court wrote that all Freedman' ment. We reject the first argument, but we accept the sssssss safeguards should apply, including second. Freedman's requirement that "a prompt judicial de- termination must be available." 493 U.S., at 239, 110 A S.Ct. 596 (Brennan, J., concurring in judgment). The city's claim that its licensing scheme need not Three Members of the Court wrote in dissent that provide a "prompt judicial determination" of an ap- Freedman's requirements *780 did not apply at all. plicant's legal claim rests upon its reading of two of See 493 U.S., at 244-245, 110 S.Ct. 596 (White, J., this Court's cases, Freedman and FW/PBS. In joined by REHNQUIST, C. J.,, concurring in part and Freedman, the Court considered the First Amend- dissenting in part); id., at 250, 110 S.Ct. 596 ment's application to a "motion picture *779 censor- (SCALIA, J., concurring in part and dissenting in ship statute"--a statute that required an " 'owner or part). lessee' " of a film, prior to exhibiting a film, to submit the film to the Maryland State Board of Censors and The city points to the differing linguistic descriptions obtain its approval. 380 U.S., at 52, and n. 1, 85 S.Ct. of the "judicial review" requirement set forth in these 734 (quoting Maryland statute). It said, "a noncrimin- opinions. It concedes that Freedman, in listing consti- al process which requires the prior submission of a tutionally necessary "safeguards," spoke of the need film to a censor avoids constitutional infirmity only if to assure a "prompt final judicial decision." 380 U.S.,
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 5 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 541 U.S. 774, 124 S.Ct. 2219) at 59, 85 S.Ct. 734. But it adds that Justice effect that argument concedes the constitutional im- O'CONNOR's controlling plurality opinion in FW/ portance of assuring a "prompt" judicial decision. It PBS did not use the word "decision," instead speak- concedes as well that the Court, illustrating what it ing only of the "possibility of prompt judicial **2224 meant by "prompt" in Freedman, there set forth a review." 493 U.S., at 228, 110 S.Ct. 596 (emphasis "model" that involved a "hearing one day after join- added); see also id., at 229, 110 S.Ct. 596 ("an aven- der of issue" and a "decision within two days after ue for prompt judicial review"); id., at 230, 110 S.Ct. termination of the hearing." 380 U.S., at 60, 85 S.Ct. 596 ("availability of prompt judicial review"). This 734. But the city says that here the First Amendment difference in language between Freedman and FW/ nonetheless does not require it to impose 2- or 3-day PBS, says the city, makes a major difference: The time limits; the First Amendment does not require First Amendment, as applied to an "adult business" special "adult business" judicial review rules; and the licensing scheme, demands only an assurance of First Amendment does not insist that Littleton write speedy access to the courts, not an assurance of a detailed judicial review rules into the ordinance itself. speedy court decision. In sum, Colorado's ordinary "judicial review" rules offer adequate assurance, not only that access to the [1] In our view, however, the city's argument makes courts can be promptly obtained, but also that a judi- too much of too little. While Justice O'CONNOR's cial decision will be promptly forthcoming. FW/PBS plurality opinion makes clear that only Freedman's "core" requirements apply in the context Littleton, in effect, argues that we should modify of "adult business" licensing schemes, it does not FW/PBS, withdrawing its implication that purport radically to alter the nature of those "core" re- Freedman's special judicial review rules apply in this quirements. To the contrary, the opinion, immedi- case. And we accept that argument. In our view, Col- ately prior to its reference to the "judicial review" orado's ordinary judicial review procedures suffice as safeguard, says: long as the courts remain sensitive to the need to pre- "The core policy underlying Freedman is that the vent First Amendment harms and administer *782 license for a First Amendment-protected business those procedures accordingly. And whether the courts must be issued within a reasonable period of time, do so is a matter normally fit for case-by-case de- because undue delay results in the unconstitutional termination rather than a facial challenge. We reach suppression of protected speech. Thus, the first two this conclusion for several reasons. [Freedman] safeguards are essential ... ." 493 U.S., at 228, 110 S.Ct. 596. First, ordinary court procedural rules and practices, in *781 These words, pointing out that Freedman's "judi- Colorado as elsewhere, **2225 provide reviewing cial review" safeguard is meant to prevent "undue courts with judicial tools sufficient to avoid delay- delay," 493 U.S., at 228, 110 S.Ct. 596, include judi- related First Amendment harm. Indeed, where neces- cial, as well as administrative, delay. A delay in issu- sary, courts may arrange their schedules to "acceler- ing a judicial decision, no less than a delay in obtain- ate" proceedings. Colo. Rule Civ. Proc. ing access to a court, can prevent a license from be- 106(a)(4)(VIII) (2003). And higher courts may ing "issued within a reasonable period of time." Ibid. quickly review adverse lower court decisions. See, Nothing in the opinion suggests the contrary. Thus e.g., Goebel v. Colorado Dept. of Institutions, 764 we read that opinion's reference to "prompt judicial P.2d 785, 792 (Colo.1988) (en banc) (granting "exped- review," together with the similar reference in Justice ited review"). Brennan's separate opinion (joined by two other Second, we have no reason to doubt the willingness Justices), see id., at 239, 110 S.Ct. 596, as encom- of Colorado's judges to exercise these powers wisely passing a prompt judicial decision. And we reject the so as to avoid serious threats of delay-induced First city's arguments to the contrary. Amendment harm. We presume that courts are aware B of the constitutional need to avoid "undue delay res- [2] We find the second argument more convincing. In ult[ing] in the unconstitutional suppression of protec-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 6 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 541 U.S. 774, 124 S.Ct. 2219) ted speech." FW/PBS, supra, at 228, 110 S.Ct. 596; satisfy the criteria even if others do not; hence the see also, e.g., Schlesinger v. Councilman, 420 U.S. community will likely contain outlets that sell protec- 738, 756, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975). ted adult material. A supplier of that material should There is no evidence before us of any special Color- be able to find outlets; a potential buyer should be ado court-related problem in this respect. And were able to find a seller. Nor should zoning requirements there some such problems, federal remedies would suppress that material, for a constitutional zoning provide an additional safety valve. See Rev. Stat. § system seeks to determine where, not whether, pro- 1979, 42 U.S.C. § 1983. tected adult material can be sold. See Renton v. Play- time Theatres, Inc., 475 U.S. 41, 46, 106 S.Ct. 925, Third, the typical First Amendment harm at issue 89 L.Ed.2d 29 (1986). The upshot is that Littleton's here differs from that at issue in Freedman, diminish- "adult business" licensing scheme does "not present ing the need in the typical case for special procedural the grave 'dangers **2226 of a censorship system.' " rules imposing special 2- or 3-day decisionmaking FW/PBS, 493 U.S., at 228, 110 S.Ct. 596 (opinion of time limits. Freedman considered a Maryland statute O'CONNOR, J.) (quoting Freedman, supra, at 58, 85 that created a Board of Censors, which had to decide S.Ct. 734). And the simple objective nature of the li- whether a film was " 'pornographic,' " tended to " 'de- censing criteria means that in the ordinary case, judi- base or corrupt morals,' " and lacked " 'whatever oth- cial review, too, should prove simple, hence expedi- er merits.' " 380 U.S., at 52-53, n. 2, 85 S.Ct. 734 tious. Where that is not so--where, for example, cen- (quoting Maryland statute). If so, it denied the permit sorship of material, as well as delay *784 in opening and the film could not be shown. Thus, in Freedman, an additional outlet, is improperly threatened--the the Court considered a scheme with rather subjective courts are able to act to prevent that harm. standards and where a denial likely meant complete censorship. Fourth, nothing in FW/PBS or in Freedman requires a city or a State to place judicial review safeguards all *783 In contrast, the ordinance at issue here does not in the city ordinance that sets forth a licensing seek to censor material. And its licensing scheme ap- scheme. Freedman itself said: "How or whether plies reasonably objective, nondiscretionary criteria Maryland is to incorporate the required procedural unrelated to the content of the expressive materials safeguards in the statutory scheme is, of course, for that an adult business may sell or display. The ordin- the State to decide." 380 U.S., at 60, 85 S.Ct. 734. ance says that an adult business license "shall" be This statement is not surprising given the fact that denied if the applicant (1) is underage; (2) provides many cities and towns lack the state-law legal author- false information; (3) has within the prior year had an ity to impose deadlines on state courts. adult business license revoked or suspended; (4) has operated an adult business determined to be a state [3] These four sets of considerations, taken together, law "public nuisance" within the prior year; (5) (if a indicate that Colorado's ordinary rules of judicial re- corporation) is not authorized to do business in the view are adequate--at least for purposes of this facial State; (6) has not timely paid taxes, fees, fines, or challenge to the ordinance. Where (as here and as in penalties; (7) has not obtained a sales tax license (for FW/PBS) the regulation simply conditions the opera- which zoning compliance is required, see Tr. of Oral tion of an adult business on compliance with neutral Arg. 16-17); or (8) has been convicted of certain and nondiscretionary criteria, cf. post, at 2226- 2227 crimes within the prior five years. § 3- 14-8(A), App. (STEVENS, J., concurring in part and concurring in to Brief for Petitioner 28a-29a (emphasis added). judgment), and does not seek to censor content, an adult business is not entitled to an unusually speedy These objective criteria are simple enough to apply judicial decision of the Freedman type. Colorado's and their application simple enough to review that rules provide for a flexible system of review in which their use is unlikely in practice to suppress totally the judges can reach a decision promptly in the ordinary presence of any specific item of adult material in the case, while using their judicial power to prevent sig- Littleton community. Some license applicants will nificant harm to First Amendment interests where cir-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 124 S.Ct. 2219 Page 7 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S 350 (Cite as: 541 U.S. 774, 124 S.Ct. 2219) cumstances require. Of course, those denied licenses But application of neutral licensing criteria is a "min- in the future remain free to raise special problems of isterial action" that regulates speech, rather than an undue delay in individual cases as the ordinance is exercise of discretionary judgment that prohibits applied. speech. Id., at 229, 110 S.Ct. 596. The decision to deny a license for failure to comply with these neutral For these reasons, the judgment of the Tenth Circuit criteria is therefore not subject to the presumption of is invalidity that attaches to the "direct censorship of particular expressive material." Ibid. Justice Reversed. O'CONNOR's opinion accordingly declined to re- Justice STEVENS, concurring in part and concurring quire that the licensor, like the censor, either bear the in the judgment. burden of going to court to effect the denial of a li- cense or otherwise assume responsibility for ensuring There is an important difference between an ordin- *786 a prompt judicial determination of the validity ance conditioning the operation of a business on of its decision. Ibid. compliance with certain neutral criteria, on the one hand, and an ordinance *785 conditioning the exhibi- The Court today reinterprets FW/PBS's references to tion of a motion picture on the consent of a censor. "the possibility of prompt judicial review" as the The former is an aspect of the routine operation of a equivalent of Freedman's "prompt judicial decision" municipal government. The latter is a species of con- requirement. Ante, at 2222-2224. I fear that this mis- tent-based prior restraint. Cf. Graff v. Chicago, 9 interpretation of FW/PBS may invite other, more seri- F.3d 1309, 1330-1333 (C.A.7 1993) (Flaum, J., con- ous misinterpretations with respect to the content of curring). that requirement. As the Court applies it in this case, assurance of a "prompt judicial decision" means little The First Amendment is, of course, implicated more than assurance of the possibility of a prompt de- whenever a city requires a bookstore, a newsstand, a cision--the same possibility of promptness that is theater, or an adult business to obtain a license before available whenever a person files suit subject to "or- it can begin to operate. For that reason, as Justice dinary court procedural rules and practices." Ante, at O'CONNOR explained in her plurality opinion in 2224. That possibility will generally be sufficient to FW/PBS, Inc. v. Dallas, 493 U.S. 215, 226, 110 S.Ct. guard against the risk of undue delay in obtaining a 596, 107 L.Ed.2d 603 (1990), a licensing scheme for remedy for the erroneous application of neutral li- businesses that engage in First Amendment activity censing criteria. But the mere possibility of prompt- must be accompanied by adequate procedural safe- ness is emphatically insufficient to guard against the guards to avert "the possibility that constitutionally dangers of unjustified suppression of speech presen- protected speech will be suppressed." But Justice ted by a censorship system of the type at issue in O'CONNOR's opinion also recognized that the full Freedman, and is certainly not what Freedman meant complement of safeguards that are necessary in cases by "prompt judicial decision." that "present the grave 'dangers of a censorship sys- tem' " are "not required" in the ordinary adult- Justice O'CONNOR's opinion in FW/PBS recognized business licensing scheme. Id., at 228, 110 S.Ct. 596 that differences between ordinary licensing schemes (quoting Freedman v. Maryland, 380 U.S. 51, 58, 85 and censorship systems warrant imposition of differ- S.Ct. 734, 13 L.Ed.2d 649 (1965)). In both contexts, ent procedural protections, including different re- "undue delay results in the unconstitutional suppres- quirements with respect to which party must assume sion **2227 of protected speech," 493 U.S., at 228, the burden of taking the case to court, as well as the 110 S.Ct. 596, and FW/PBS therefore requires both risk of judicial delay. I would adhere to the views that the licensing decision be made promptly and that there expressed, and thus do not join Part II-A of the there be "the possibility of prompt judicial review in Court's opinion. I do, however, join the Court's judg- the event that the license is erroneously denied." Ibid. ment and Parts I and II-B of its opinion.
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Justice SOUTER, with whom Justice KENNEDY 603 (1990) (opinion concurring in part and dissenting joins, concurring in part and concurring in the judg- in part): the pandering of sex is not protected by the ment. First Amendment. "The Constitution does not require a State or municipality to permit a business that in- I join the Court's opinion, except for Part II-B. I agree tentionally specializes in, *788 and holds itself forth that this scheme is unlike full-blown censorship, ante, to the public as specializing in, performance or por- at 2224-2226, so that the ordinance does not need a trayal of sex acts, sexual organs in a state of arousal, strict timetable of *787 the kind required by Freed- or live human nudity." Id., at 258, 110 S.Ct. 596. man v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 This represents the Nation's long understanding of the L.Ed.2d 649 (1965), to survive a facial challenge. I First Amendment, recognized and adopted by this write separately to emphasize that the state proced- Court's opinion in Ginzburg v. United States, 383 ures that make a prompt judicial determination pos- U.S. 463, 470-471, 86 S.Ct. 942, 16 L.Ed.2d 31 sible need to align with a state judicial practice that (1966). Littleton's ordinance targets sex-pandering provides a prompt disposition in the state courts. The businesses, see Littleton City Code § 3-14-2 (2003); emphasis matters, because although Littleton's ordin- to the extent it could apply to constitutionally protec- ance is not as suspect as censorship, neither is it as ted expression its excess is not so great as to render it innocuous as common zoning. It is a licensing substantially overbroad and thus subject to facial in- scheme triggered by the content of expressive materi- validation, see FW/PBS, 493 U.S., at 261-262, 110 als to be sold. See Los Angeles v. Alameda Books, S.Ct. 596. Since the city of Littleton "could constitu- Inc., 535 U.S. 425, 448, 122 S.Ct. 1728, 152 L.Ed.2d tionally have proscribed the commercial activities 670 (2002) (KENNEDY, J., concurring in judgment) that it chose instead to license, I do not think the de- ("These ordinances are content based, and we should tails of its licensing scheme had to comply with First call them so"); id., at 455-457, 122 S.Ct. 1728 Amendment standards." Id., at 253, 110 S.Ct. 596. (SOUTER, J., dissenting). Because the sellers may be unpopular with local authorities, **2228 there is a 541 U.S. 774, 124 S.Ct. 2219, 159 L.Ed.2d 84, 72 risk of delay in the licensing and review process. If USLW 4451, 04 Cal. Daily Op. Serv. 4843, 2004 there is evidence of foot-dragging, immediate judicial Daily Journal D.A.R. 6662, 19 Fla. L. Weekly Fed. S intervention will be required, and judicial oversight 350 or review at any stage of the proceedings must be ex- peditious. Briefs and Other Related Documents (Back to top)
Justice SCALIA, concurring in the judgment. • 2004 WL 736431, 72 USLW 3631 (Oral Argument) Oral Argument (Mar. 24, 2004) Were the respondent engaged in activity protected by the First Amendment, I would agree with the Court's • 2004 WL 419436 (Appellate Brief) Reply Brief of disposition of the question presented by the facts of Petitioner (Mar. 01, 2004) this case (though not with all of the Court's reason- • 2004 WL 188113 (Appellate Brief) Respondent's ing). Such activity, when subjected to a general per- Brief on the Merits (Jan. 26, 2004) mit requirement unrelated to censorship of content, has no special claim to priority in the judicial pro- • 2004 WL 199239 (Appellate Brief) Brief of Amicus cess. The notion that media corporations have consti- Curiae First Amendment Lawyers Association in tutional entitlement to accelerated judicial review of Support of Respondent (Jan. 26, 2004) the denial of zoning variances is absurd. • 2004 WL 177024 (Appellate Brief) Brief of Amer- I do not believe, however, that Z.J. Gifts is engaged ican Booksellers Foundation for Free Expression, As- in activity protected by the First Amendment. I ad- sociation of American Publishers Inc., Comic Book here to the view I expressed in FW/PBS, Inc. v. Dal- Legal Defense Fund, Freedom to Read Foundation, las, 493 U.S. 215, 250, 110 S.Ct. 596, 107 L.Ed.2d International Periodical Distributors Association,
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Publishers Marketing Association, and Video Soft- ware Dealers Association as Amici Curiae in Support of Respondent (Jan. 23, 2004)
• 2003 WL 22988869 (Appellate Brief) Brief of the National League of Cities, International Municipal Lawyers Association, International City/County Management Association, National Conference of State Legislatures, National Association of Counties, and U.S. Conference of Mayors, Joined by the Amer- ican Planning Association, as Amici Curiae Support- ing Petitioner (Dec. 12, 2003)
• 2003 WL 22988870 (Appellate Brief) Brief of Peti- tioner (Dec. 12, 2003)
• 2003 WL 22988871 (Appellate Brief) Brief of Ohio and 14 Other States as Amici Curiae Supporting Peti- tioner (Dec. 12, 2003)
• 2003 WL 22988872 (Appellate Brief) Brief of Community Defense Counsel as Amicus Curiae in Support of Petitioner (Dec. 12, 2003)
• 02-1609 (Docket) (May. 06, 2003)
END OF DOCUMENT
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[2] Public Amusement and Entertainment 9(1) Briefs and Other Related Documents 315Tk9(1) Most Cited Cases (Formerly 376k3 Theaters and Shows) Supreme Court of the United States City could reasonably rely on police department CITY OF LOS ANGELES, Petitioner, study correlating crime patterns with concentrations v. of adult businesses when opposing First Amendment ALAMEDA BOOKS, INC., et al. challenge to ordinance barring more than one adult No. 00-799. entertainment business in same building, even though Argued Dec. 4, 2001. study had focused on single-use establishments; Decided May 13, 2002. study fairly supported city's rationale for ordinance. (Per Justice O'Connor, with the Chief Justice and two Adult businesses brought § 1983 action, challenging Justices concurring and one Justice concurring in city ordinance prohibiting operation of multiple adult judgment). U.S.C.A. Const.Amend. 1. businesses in single building. The United States Dis- **1728 *425 Syllabus [FN*] trict Court for the Central District of California, Dean FN* The syllabus constitutes no part of the D. Pregerson, J., granted summary judgment for busi- opinion of the Court but has been prepared nesses. City appealed. The Ninth Circuit Court of by the Reporter of Decisions for the con- Appeals, Michael Daly Hawkins, Circuit Judge, 222 venience of the reader. See United States v. F.3d 719, affirmed. Certiorari was granted. The Su- Detroit Timber & Lumber Co., 200 U.S. preme Court, Justice O'Connor, held that city could 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. reasonably rely on police department study correlat- Based on its 1977 study concluding that concentra- ing crime patterns with concentrations of adult busi- tions of adult entertainment establishments are asso- nesses when opposing businesses' First Amendment ciated with higher crime rates in surrounding com- challenge. munities, petitioner city enacted an ordinance prohib- iting such enterprises within 1,000 feet of each other Reversed and remanded. or within 500 feet of a religious institution, school, or public park. Los Angeles Municipal Code § 12.70(C) Justice Scalia concurred and filed opinion. (1978). Because the ordinance's method of calculat- Justice Kennedy concurred in judgment and filed ing distances created a loophole permitting the con- opinion. centration of multiple adult enterprises in a single structure, the **1729 city later amended the ordin- Justice Souter filed dissenting opinion, in which ance to prohibit "more than one adult entertainment Justices Stevens and Ginsburg joined and Justice business in the same building." § 12.70(C) (1983). Breyer joined in part. Respondents, two adult establishments that openly operate combined bookstores/video arcades in viola- West Headnotes tion of § 12.70(C), as amended, sued under 42 U.S.C. § 1983 for declaratory and injunctive relief, alleging [1] Constitutional Law 90(3) that the ordinance, on its face, violates the First 92k90(3) Most Cited Cases Amendment. Finding that the ordinance was not a Reducing crime is a substantial government interest, content-neutral regulation of speech, the District for purpose of justifying time, place and manner reg- Court reasoned that neither the 1977 study nor a re- ulation of speech. U.S.C.A. Const.Amend. 1. port cited in Hart Book Stores v. Edmisten, a Fourth [2] Constitutional Law 90.4(3) Circuit case upholding a similar statute, supported a 92k90.4(3) Most Cited Cases reasonable belief that multiple-use adult establish-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 2 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) ments produce the secondary effects the city asserted operations in a neighborhood, whether within separ- as content-neutral justifications for its prohibition. ate establishments or in one large establishment, will Subjecting § 12.70(C) to strict scrutiny, the court reduce crime rates. Neither the Ninth Circuit nor re- granted respondents summary judgment because it spondents nor the dissent provides any reason to felt the city had not offered evidence demonstrating question the city's theory. If this Court were to accept that its prohibition was necessary to serve a compel- their view, it would effectively require that the city ling government interest. The Ninth Circuit affirmed provide evidence that not only supports the claim that on the different ground that, even if the ordinance its ordinance serves an important government in- were content neutral, the city failed to present evid- terest, but also does not provide support for any other ence upon which it could reasonably rely to demon- approach to serve that interest. Renton specifically re- strate that its regulation of multiple-use establish- fused to set such a high bar for municipalities that ments was designed to serve its substantial interest in want to address merely the secondary effects of pro- reducing crime. The court therefore held the ordin- tected speech. The Court there held that a municipal- ance invalid under Renton v. Playtime Theatres, Inc., ity may rely on any evidence that is "reasonably be- 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29. lieved to be relevant" for demonstrating a connection between speech and a substantial, independent gov- Held: The judgment is reversed, and the case is re- ernment interest. 475 U.S., at 51-52, 106 S.Ct. 925. manded. This is not to say that a municipality can get away with shoddy data or reasoning. The municipality's 222 F.3d 719, reversed and remanded. evidence must fairly support its rationale for its or- Justice O'CONNOR, joined by THE CHIEF dinance. If plaintiffs **1730 fail to cast direct doubt JUSTICE, Justice SCALIA, and Justice THOMAS, on this rationale, either by demonstrating that the mu- concluded that Los Angeles may reasonably rely nicipality's evidence does not support its rationale or *426 on its 1977 study to demonstrate that its present by furnishing evidence that disputes the municipal- ban on multiple-use adult establishments serves its ity's factual findings, the municipality meets the interest in reducing crime. Pp. 1733-1738. Renton standard. If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the (a) The 1977 study's central component is a Los burden shifts back to the municipality to supplement Angeles Police Department report indicating that, the record with evidence renewing support for a the- from 1965 to 1975, crime rates for, e.g., robbery and ory that justifies its ordinance. See, e.g., Erie v. Pap's prostitution grew much faster in Hollywood, which A.M., 529 U.S. 277, 298, 120 S.Ct. 1382, 146 had the city's largest concentration of adult establish- L.Ed.2d 265. This case is at a very early stage in this ments, than in the city as a whole. The city may reas- process. It arrives on a summary judgment motion by onably rely on the police department's conclusions re- respondents defended only by complaints that the garding crime patterns to overcome summary judg- 1977 study fails to prove that the city's justification ment. In finding to the contrary on the ground that the for its ordinance is necessarily *427 correct. There- 1977 study focused on the effect on crime rates of a fore, it must be concluded that the city, at this stage concentration of establishments--not a concentration of the litigation, has complied with Renton's eviden- of operations within a single establishment--the Ninth tiary requirement. Pp. 1733-1738. Circuit misunderstood the study's implications. While the study reveals that areas with high concentrations (b) The Court need not resolve the parties' dispute of adult establishments are associated with high over whether the city can rely on evidence from Hart crime rates, such areas are also areas with high con- Book Stores to overcome summary judgment, nor re- centrations of adult operations, albeit each in separate spondents' alternative argument that the ordinance is establishments. It was therefore consistent with the not a time, place, and manner regulation, but is ef- 1977 study's findings, and thus reasonable, for the fectively a ban on adult video arcades that must be city to infer that reducing the concentration of adult subjected to strict scrutiny. P. 1738.
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Justice KENNEDY concluded that this Court's pre- fects without substantially reducing speech. If two cedents may allow Los Angeles to impose its regula- adult businesses are under the same roof, an ordin- tion in the exercise of the zoning authority, and that ance requiring *428 them to separate will have one of the city is not, at least, to be foreclosed by summary two results: One business will either move elsewhere judgment. Pp. 1739-1744. or close. The city's premise cannot be the latter. The premise must be that businesses--even those that have (a) Under Renton v. Playtime Theatres, Inc., 475 U.S. always been under one roof--will for the most part 41, 106 S.Ct. 925, 89 L.Ed.2d 29, if a city can de- disperse rather than shut down, that the quantity of crease the crime and blight associated with adult speech will be substantially **1731 undiminished, businesses by exercising its zoning power, and at the and that total secondary effects will be significantly same time leave the quantity and accessibility of reduced. As to whether there is sufficient evidence to speech substantially undiminished, there is no First support this proposition, the Court has consistently Amendment objection, even if the measure identifies held that a city must have latitude to experiment, at the problem outside the establishments by reference least at the outset, and that very little evidence is re- to the speech inside--that is, even if the measure is quired. See, e.g., Renton, supra, at 51-52, 106 S.Ct. content based. On the other hand, a city may not reg- 925. Here, the proposition to be shown is supported ulate the secondary effects of speech by suppressing by common experience and a study showing a correl- the speech itself. For example, it may not impose a ation between the concentration of adult establish- content-based fee or tax, see Arkansas Writers' ments and crime. Assuming that the study supports Project, Inc. v. Ragland, 481 U.S. 221, 230, 107 S.Ct. the city's original dispersal ordinance, most of the ne- 1722, 95 L.Ed.2d 209, even if the government pur- cessary analysis follows. To justify the ordinance at ports to justify the fee by reference to secondary ef- issue, the city may infer--from its study and from its fects, see Forsyth County v. Nationalist Movement, own experience--that two adult businesses under the 505 U.S. 123, 134-135, 112 S.Ct. 2395, 120 L.Ed.2d same roof are no better than two next door, and that 101. That the ordinance at issue is more a typical knocking down the wall between the two would not land-use restriction than a law suppressing speech is ameliorate any undesirable secondary effects of their suggested by the fact that it is not limited to express- proximity to one another. If the city's first ordinance ive activities, but extends, e.g., to massage parlors, was justified, therefore, then the second is too. Pp. which the city has found to cause the same undesir- 1741-1743. able secondary effects; also, it is just one part of an elaborate web of land-use regulations intended to (d) Because these considerations seem well enough promote the social value of the land as a whole established in common experience and the Court's without suppressing some activities or favoring oth- case law, the ordinance survives summary judgment. ers. Thus, the ordinance is not so suspect that it must Pp. 1743-1744. be subjected to the strict scrutiny that content-based laws demand in other instances. Rather, it calls for in- O'CONNOR, J., announced the judgment of the termediate scrutiny, as Renton held. Pp. 1739-1741. Court and delivered an opinion, in which REHNQUIST, C.J., and SCALIA and THOMAS, JJ., (b) Renton's description of an ordinance similar to joined. SCALIA, J., filed a concurring opinion, post, Los Angeles' as "content neutral," 475 U.S., at 48, p. 1738. KENNEDY, J., filed an opinion concurring 106 S.Ct. 925, was something of a fiction. These or- in the judgment, post, p. 1739. SOUTER, J., filed a dinances are content based, and should be so de- dissenting opinion, in which STEVENS and GINS- scribed. Nevertheless, Renton's central holding is BURG, JJ., joined, and in which BREYER, J., joined sound. P. 1741. as to Part II, post, p. 1744.
(c) The necessary rationale for applying intermediate Michael L. Klekner, Los Angeles, CA, for petitioner. scrutiny is the promise that zoning ordinances like the one at issue may reduce the costs of secondary ef- John H. Weston, Los Angeles, CA, for respondents.
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*429 Justice O'CONNOR announced the judgment of (City Plan Case No. 26475, City Council File No. the Court and delivered an opinion, in which THE 74-4521-S.3, June 1977)). Accordingly, the city en- CHIEF JUSTICE, Justice SCALIA, and Justice acted an ordinance prohibiting the establishment, THOMAS join. substantial enlargement, or transfer of ownership of an adult arcade, bookstore, cabaret, motel, theater, or Los Angeles Municipal Code § 12.70(C) (1983), as massage parlor or a place for sexual encounters with- amended, prohibits "the establishment or mainten- in 1,000 feet of another such enterprise or within 500 ance of more than one adult entertainment business in feet of any religious institution, school, or public the same building, structure or portion thereof." Re- park. See Los Angeles Municipal Code § 12.70(C) spondents, two adult establishments that each oper- (1978). ated an adult bookstore and an adult video arcade in the same building, filed a suit under Rev. Stat. § There is evidence that the intent of the city council 1979, 42 U.S.C. § 1983 (1994 ed., Supp. V), alleging when enacting this prohibition was not only to dis- that § 12.70(C) violates the First Amendment and perse distinct adult establishments housed in separate seeking declaratory and injunctive relief. The District buildings, but also to disperse distinct adult busi- Court granted summary judgment to respondents, nesses operated under common ownership and finding that the city of Los Angeles' prohibition was a housed in a single structure. See App. 29 *431 (Los content-based regulation of speech that failed strict Angeles Dept. of City Planning, Amendment- scrutiny. The Court of Appeals for the Ninth Circuit -Proposed Ordinance to Prohibit the Establishment of affirmed, but on different grounds. It held that, even More than One Adult Entertainment Business at a if § 12.70(C) were a content-neutral regulation, the Single Location (City Plan Case No. 26475, City city failed to demonstrate that the *430 prohibition Council File No. 82-0155, Jan. 13, 1983)). The ordin- was designed to serve a substantial government in- ance the city enacted, however, directed that "[t]he terest. Specifically, the Court of Appeals found that distance between any two adult entertainment busi- the city failed to present evidence upon which it nesses shall be measured in a straight line ... from the could reasonably rely to demonstrate a link between closest exterior structural wall of each business." Los multiple-use adult establishments and negative sec- Angeles Municipal Code § 12.70(D) (1978). Sub- ondary effects. Therefore, the Court of Appeals held sequent to enactment, the city realized that this meth- the Los Angeles prohibition on such establishments od of calculating distances created a loophole permit- invalid under Renton v. Playtime Theatres, Inc., 475 ting the concentration of multiple adult enterprises in U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and its a single structure. precedents interpreting that case. 222 F.3d 719, 723-728 (2000). We reverse and remand. The city of Concerned that allowing an adult-oriented depart- Los Angeles may reasonably rely on a study it con- ment store to replace a strip of adult establishments ducted some years before enacting the present ver- could defeat the goal of the original ordinance, the sion of § 12.70(C) to demonstrate that its ban on mul- city council amended § 12.70(C) by adding a prohibi- tiple-use adult establishments serves its interest in re- tion on "the establishment or maintenance of more ducing crime. than one adult entertainment business in the same building, structure or portion thereof." Los Angeles **1732 I Municipal Code § 12.70(C) (1983). The amended or- In 1977, the city of Los Angeles conducted a compre- dinance defines an "Adult Entertainment Business" as hensive study of adult establishments and concluded an adult arcade, bookstore, cabaret, motel, theater, or that concentrations of adult businesses are associated massage parlor or a place for sexual encounters, and with higher rates of prostitution, robbery, assaults, notes that each of these enterprises "shall constitute a and thefts in surrounding communities. See App. separate adult entertainment business even if oper- 35-162 (Los Angeles Dept. of City Planning, Study ated in conjunction with another adult entertainment of the Effects of the Concentration of Adult Enter- business at the same establishment." § 12.70(B)(17). tainment Establishments in the City of Los Angeles The ordinance uses the term "business" to refer to
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 5 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) certain types of goods or services sold in adult estab- ment issues in count I, concluding that there was "a lishments, rather than the establishment itself. Relev- genuine issue of fact whether the operation of a com- ant for purposes of this case are also the ordinance's bination video rental and video viewing business definitions of adult bookstores and arcades. An leads to the harmful secondary effects associated with "Adult Bookstore" is an operation that "has as a sub- a concentration of separate businesses in a single urb- stantial portion of its stock-in-trade and offers for an area." App. 255. After respondents filed a motion sale" printed matter and videocassettes that emphas- for reconsideration, however, the District *433 Court ize the depiction of specified sexual activities. § found that Los Angeles' prohibition on multiple-use 12.70(B)(2)(a). An adult arcade is an operation adult establishments was not a content-neutral regula- where, "for any form of consideration," five or fewer tion of speech. App. to Pet. for Cert. 51. It reasoned patrons together may view films or videocassettes that neither the city's 1977 study nor a report cited in *432 that emphasize the depiction of specified sexual Hart Book Stores v. Edmisten, 612 F.2d 821 (C.A.4 activities. § 12.70(B)(1). 1979) (upholding a North Carolina statute that also banned multiple-use adult establishments), supported Respondents, Alameda Books, Inc., and Highland a reasonable belief that multiple-use adult establish- Books, Inc., are two adult establishments operating in ments produced the secondary effects the city asser- Los Angeles. Neither is located within 1,000 feet of ted as content-neutral justifications for its prohibition. another adult establishment or 500 feet of any reli- App. to Pet. for Cert. 34-47. Therefore, the District gious institution, public park, or school. Each estab- Court proceeded to subject the Los Angeles ordin- lishment occupies less than 3,000 square feet. Both ance to strict scrutiny. Because it felt that the city did respondents rent and sell sexually oriented products, not offer evidence to demonstrate that its prohibition including videocassettes. Additionally, both provide is necessary to serve a compelling government in- booths where patrons can view videocassettes for a terest, the District Court granted summary judgment fee. Although respondents are located in different for respondents and issued a permanent injunction buildings, each operates its retail sales and rental op- enjoining the enforcement of the ordinance against erations in the same commercial space in which its respondents. Id., at 51. video booths are located. There are no **1733 phys- ical distinctions between the different operations The Court of Appeals for the Ninth Circuit affirmed, within each establishment and each establishment has although on different grounds. The Court of Appeals only one entrance. 222 F.3d, at 721. Respondents determined that it did not have to reach the District concede they are openly operating in violation of § Court's decision that the Los Angeles ordinance was 12.70(C) of the city's code, as amended. Brief for Re- content based because, even if the ordinance were spondents 7; Brief for Petitioner 9. content neutral, the city failed to present evidence upon which it could reasonably rely to demonstrate After a city building inspector found in 1995 that that its regulation of multiple-use establishments is Alameda Books, Inc., was operating both as an adult "designed to serve" the city's substantial interest in bookstore and an adult arcade in violation of the reducing crime. The challenged ordinance was there- city's adult zoning regulations, respondents joined as fore invalid under Renton, 475 U.S. 41, 106 S.Ct. plaintiffs and sued under 42 U.S.C. § 1983 for declar- 925, 89 L.Ed.2d 29. 222 F.3d, at 723-724. We gran- atory and injunctive relief to prevent enforcement of ted certiorari, 532 U.S. 902, 121 S.Ct. 1223, 149 the ordinance. 222 F.3d, at 721. At issue in this case L.Ed.2d 134 (2001), to clarify the standard for de- is count I of the complaint, which alleges a facial vi- termining whether an ordinance serves a substantial olation of the First Amendment. Both the city and re- government interest under Renton, supra. spondents filed cross-motions for summary judg- ment. II In Renton v. Playtime Theatres, Inc., supra, this The District Court for the Central District of Califor- Court considered the validity of a municipal ordin- nia initially denied both motions on the First Amend- ance that prohibited any adult movie theater from
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 6 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) locating within 1,000 feet of any residential zone, adult establishments was designed to serve its sub- family dwelling, church, park, *434 or school. Our stantial interest in reducing crime. The Court of Ap- analysis of the ordinance proceeded in three steps. peals noted that the primary evidence relied upon by First, we found that the ordinance did not ban adult Los Angeles to demonstrate a link between combina- theaters altogether, but merely required that they be tion adult businesses and harmful secondary effects distanced from certain sensitive locations. The ordin- was the 1977 study conducted by the city's planning ance was properly analyzed, therefore, as a time, department. The Court of Appeals found, however, place, and manner regulation. Id., at 46, 106 S.Ct. that the city could not rely on that study because it 925. We next considered whether the ordinance was did not " 'suppor[t] a reasonable belief that [the] com- content neutral or content based. If the regulation bination [of] businesses ... produced harmful second- were content based, it would be considered pre- ary effects of the type asserted.' " 222 F.3d, at 724. sumptively invalid and subject to strict scrutiny. Si- For similar reasons, the Court of Appeals also rejec- mon & Schuster, Inc. v. Members of N.Y. State ted the city's attempt to rely on a report on health **1734 Crime Victims Bd., 502 U.S. 105, 115, 118, conditions inside adult video arcades described in 112 S.Ct. 501, 116 L.Ed.2d 476 (1991); Arkansas Hart Book Stores, supra, a case that upheld a North Writers' Project, Inc. v. Ragland, 481 U.S. 221, 230- Carolina statute similar to the Los Angeles ordinance 231, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). We challenged in this case. held, however, that the Renton ordinance was aimed not at the content of the films shown at adult theaters, The central component of the 1977 study is a report but rather at the secondary effects of such theaters on on city crime patterns provided by the Los Angeles the surrounding community, namely, at crime rates, Police Department. That report indicated that, during property values, and the quality of the city's neigh- the period from 1965 to 1975, certain crime rates borhoods. Therefore, the ordinance was deemed con- grew much faster in Hollywood, which had the tent neutral. Renton, supra, at 47-49, 106 S.Ct. 925. largest concentration of adult establishments in the Finally, given this finding, we stated that the ordin- city, than in the city of Los Angeles as a whole. For ance would be upheld so long as the city of Renton example, robberies increased 3 times faster and pros- showed that its ordinance was designed to serve a titution 15 times faster in Hollywood than citywide. substantial government interest and that reasonable App. 124-125. alternative avenues of communication remained [1] The 1977 study also contains reports conducted available. 475 U.S., at 50, 106 S.Ct. 925. We con- directly by the staff of the Los Angeles Planning De- cluded that Renton had met this burden, and we up- partment that examine the relationship between adult held its ordinance. Id., at 51-54, 106 S.Ct. 925. establishments and property values. These staff re- The Court of Appeals applied the same analysis to ports, however, are inconclusive. Not surprisingly, evaluate the Los Angeles ordinance challenged in this the parties focus their dispute before this Court on the case. First, the Court of Appeals found that the Los report by the Los Angeles Police Department. Be- Angeles ordinance was not a complete ban on adult cause we find that reducing crime is a substantial entertainment establishments, but rather a sort of government interest and that the police department adult zoning regulation, which Renton considered a report's conclusions regarding crime patterns may time, place, and manner regulation. 222 F.3d, at 723. reasonably be relied upon to overcome summary The Court of Appeals turned to the second step of the judgment against *436 the city, we also focus on the Renton analysis, but did not draw any conclusions portion of the 1977 study drawn from the police de- about whether the Los Angeles ordinance was con- partment report. tent based. It explained that, even if the Los Angeles The Court of Appeals found that the 1977 study did ordinance were content neutral, the city had failed to not reasonably support the inference that a concentra- demonstrate, *435 as required by the third step of the tion of adult operations within a single adult estab- Renton analysis, that its prohibition on multiple-use lishment produced greater levels of criminal activity
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 7 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) because the study focused on the **1735 effect that a between concentrations of adult establishments that is concentration of establishments--not a concentration inconsistent with its own. of operations within a single establishment--had on crime rates. The Court of Appeals pointed out that The error that the Court of Appeals made is that it re- the study treated combination adult bookstore/arcades quired the city to prove that its theory about a con- as single establishments and did not study the effect centration of adult operations attracting crowds of of any separate-standing adult bookstore or arcade. customers, much like a minimall or department store 222 F.3d, at 724. does, is a necessary consequence of the 1977 study. For example, the Court of Appeals refused to allow [2] The Court of Appeals misunderstood the implica- the city to draw the inference that "the expansion of tions of the 1977 study. While the study reveals that an adult bookstore to include an adult arcade would areas with high concentrations of adult establish- increase" business activity and "produce the harmful ments are associated with high crime rates, areas with secondary effects identified in the Study." 222 F.3d, high concentrations of adult establishments are also at 726. It reasoned that such an inference would justi- areas with high concentrations of adult operations, al- fy limits on the inventory of an adult bookstore, not a beit each in separate establishments. It was therefore ban on the combination of an adult bookstore and an consistent with the findings of the 1977 study, and adult arcade. The Court of Appeals simply replaced thus reasonable, for Los Angeles to suppose that a the city's theory--that having many different opera- concentration of adult establishments is correlated tions in close proximity attracts crowds--with its with high crime rates because a concentration of op- own--that the size of an operation attracts crowds. If erations in one locale draws, for example, a greater the Court of Appeals' theory is correct, then inventory concentration of adult consumers to the neighbor- limits make more sense. If the city's theory is correct, hood, and a high density of such consumers either at- then a prohibition on the combination of businesses tracts or generates criminal activity. The assumption makes more sense. Both theories are consistent with behind this theory is that having a number of adult the data in the 1977 study. The Court of Appeals' operations in one single adult establishment draws analysis, however, implicitly requires the city to the same dense foot traffic as having a number of dis- prove that its theory is the only one that can plausibly tinct adult establishments in close proximity, much as explain the data *438 because only in this manner minimalls and department stores similarly attract the can the city refute the Court of Appeals' logic. crowds of consumers. Brief for Petitioner 28. Under this view, it is rational for the city to infer that redu- Respondents make the same logical error as the Court cing the concentration of adult operations in a neigh- of Appeals when they suggest that the city's prohibi- borhood, whether within separate establishments or tion on multiuse establishments will raise crime rates in one large establishment, will reduce crime rates. in certain neighborhoods because it will **1736 force certain adult businesses to relocate to areas without *437 Neither the Court of Appeals, nor respondents, any other adult businesses. Respondents' claim as- nor the dissent provides any reason to question the sumes that the 1977 study proves that all adult busi- city's theory. In particular, they do not offer a com- nesses, whether or not they are located near other peting theory, let alone data, that explains why the el- adult businesses, generate crime. This is a plausible evated crime rates in neighborhoods with a concen- reading of the results from the 1977 study, but re- tration of adult establishments can be attributed en- spondents do not demonstrate that it is a compelled tirely to the presence of permanent walls between, reading. Nor do they provide evidence that refutes the and separate entrances to, each individual adult oper- city's interpretation of the study, under which the ation. While the city certainly bears the burden of city's prohibition should on balance reduce crime. If providing evidence that supports a link between con- this Court were nevertheless to accept respondents' centrations of adult operations and asserted second- speculation, it would effectively require that the city ary effects, it does not bear the burden of providing provide evidence that not only supports the claim that evidence that rules out every theory for the link its ordinance serves an important government in-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 8 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) terest, but also does not provide support for any other merely by appeal to common sense, but also with em- approach to serve that interest. pirical data, that its ordinance will successfully lower crime. Our cases have never required that municipal- In Renton, we specifically refused to set such a high ities make such a showing, certainly not without actu- bar for municipalities that want to address merely the al and convincing evidence from plaintiffs to the con- secondary effects of protected speech. We held that a trary. See, e.g., Barnes, supra, at 583-584, 111 S.Ct. municipality may rely on any evidence that is "reason- 2456 (SOUTER, J., concurring in judgment). Such a ably believed to be relevant" for demonstrating a con- requirement would go too far in undermining our nection between speech and a substantial, independ- settled position that municipalities must be given a " ent government interest. 475 U.S., at 51- 52, 106 'reasonable opportunity to experiment with solutions' S.Ct. 925; see also, e.g., Barnes v. Glen Theatre, Inc., " to address the secondary effects of protected 501 U.S. 560, 584, 111 S.Ct. 2456, 115 L.Ed.2d 504 speech. Renton, supra, at 52, 106 S.Ct. 925 (quoting (1991) (SOUTER, J., concurring in judgment) Young v. American Mini Theatres, Inc., 427 U.S. 50, (permitting municipality to use evidence that adult 71, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976) (plurality theaters are correlated with harmful secondary effects opinion)). A municipality considering an innovative to support its claim that nude dancing is likely to pro- solution may not have data that could demonstrate duce the same effects). This is not to say that a muni- the efficacy of its proposal because *440 the solution cipality can get away with shoddy data or reasoning. would, by definition, not have been implemented pre- The municipality's evidence must fairly support the viously. The city's ordinance banning municipality's rationale for its ordinance. If plaintiffs multiple-**1737 use adult establishments is such a fail to cast direct doubt on this rationale, either by solution. Respondents contend that there are no adult demonstrating that the municipality's *439 evidence video arcades in Los Angeles County that operate in- does not support its rationale or by furnishing evid- dependently of adult bookstores. See Brief for Re- ence that disputes the municipality's factual findings, spondents 41. But without such arcades, the city does the municipality meets the standard set forth in not have a treatment group to compare with the con- Renton. If plaintiffs succeed in casting doubt on a trol group of multiple-use adult establishments, and municipality's rationale in either manner, the burden without such a comparison Justice SOUTER would shifts back to the municipality to supplement the re- strike down the city's ordinance. This leaves the city cord with evidence renewing support for a theory that with no means to address the secondary effects with justifies its ordinance. See, e.g., Erie v. Pap's A.M., which it is concerned. 529 U.S. 277, 298, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion). This case is at a very early Our deference to the evidence presented by the city stage in this process. It arrives on a summary judg- of Los Angeles is the product of a careful balance ment motion by respondents defended only by com- between competing interests. On the one hand, we plaints that the 1977 study fails to prove that the have an "obligation to exercise independent judgment city's justification for its ordinance is necessarily cor- when First Amendment rights are implicated." Turn- rect. Therefore, we conclude that the city, at this er Broadcasting System, Inc. v. FCC, 512 U.S. 622, stage of the litigation, has complied with the eviden- 666, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) tiary requirement in Renton. (plurality opinion); see also Landmark Communica- tions, Inc. v. Virginia, 435 U.S. 829, 843-844, 98 Justice SOUTER faults the city for relying on the S.Ct. 1535, 56 L.Ed.2d 1 (1978). On the other hand, 1977 study not because the study fails to support the we must acknowledge that the Los Angeles City city's theory that adult department stores, like adult Council is in a better position than the Judiciary to minimalls, attract customers and thus crime, but be- gather and evaluate data on local problems. See Turn- cause the city does not demonstrate that freestanding er, supra, at 665-666, 114 S.Ct. 2445; Erie, supra, at single-use adult establishments reduce crime. See 297-298, 120 S.Ct. 1382 (plurality opinion). We are post, at 1747-1749 (dissenting opinion). In effect, also guided by the fact that Renton requires that mu- Justice SOUTER asks the city to demonstrate, not
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Finally, Justice SOUTER does **1738 not clarify the sort of evidence upon Justice SOUTER would have us rethink this balance, which municipalities may rely to meet the evidentiary and indeed the entire Renton framework. In Renton, burden he would require. It is easy to say that courts the Court distinguished the inquiry into whether a must demand evidence *442 when "common experi- municipal ordinance is content neutral from the in- ence" or "common assumptions" are incorrect, see quiry into whether it is "designed to serve a substan- post, at 1747, but it is difficult for courts to know tial government interest and do not unreasonably lim- ahead of time whether that condition is met. Municip- it alternative avenues of communication." 475 U.S., alities will, in general, have greater experience with at 47- 54, 106 S.Ct. 925. The former requires courts and understanding of the secondary effects that fol- to verify that the "predominate concerns" motivating low certain protected speech than will the courts. See the *441 ordinance "were with the secondary effects Erie, 529 U.S., at 297-298, 120 S.Ct. 1382 (plurality of adult [speech], and not with the content of adult opinion). For this reason our cases require only that [speech]." Id., at 47, 106 S.Ct. 925 (emphasis de- municipalities rely upon evidence that is " 'reason- leted) The latter inquiry goes one step further and ably believed to be relevant' " to the secondary ef- asks whether the municipality can demonstrate a con- fects that they seek to address. Id., at 296. nection between the speech regulated by the ordin- ance and the secondary effects that motivated the ad- III option of the ordinance. Only at this stage did Renton The city of Los Angeles argues that its prohibition on contemplate that courts would examine evidence con- multiuse establishments draws further support from a cerning regulated speech and secondary effects. Id., study of the poor health conditions in adult video ar- at 50-52, 106 S.Ct. 925. Justice SOUTER would cades described in Hart Book Stores, a case that up- either merge these two inquiries or move the eviden- held a North Carolina ordinance similar to that chal- tiary analysis into the inquiry on content neutrality, lenged here. See 612 F.2d, at 828-829, n. 9. Respond- and raise the evidentiary bar that a municipality must ents argue that the city cannot rely on evidence from pass. His logic is that verifying that the ordinance ac- Hart Book Stores because the city cannot prove it ex- tually reduces the secondary effects asserted would amined that evidence before it enacted the current ensure that zoning regulations are not merely content- version of § 12.70(C). Brief for Respondents 21. Re- based regulations in disguise. See post, at 1746. spondents note, moreover, that unsanitary conditions in adult video arcades would persist regardless of We think this proposal unwise. First, none of the whether arcades were operated in the same buildings parties request the Court to depart from the Renton as, say, adult bookstores. Ibid. framework. Nor is the proposal fairly encompassed in the question presented, which focuses on the sorts of We do not, however, need to resolve the parties' dis- evidence upon which the city may rely to demon- pute over evidence cited in Hart Book Stores. Unlike strate that its ordinance is designed to serve a sub- the city of Renton, the city of Los Angeles conducted stantial governmental interest. Pet. for Cert. i. its own study of adult businesses. We have concluded Second, there is no evidence suggesting that courts that the Los Angeles study provides evidence to sup- have difficulty determining whether municipal ordin- port the city's theory that a concentration of adult op- ances are motivated primarily by the content of adult erations in one locale attracts crime, and can be reas- speech or by its secondary effects without looking to onably relied upon to demonstrate that Los Angeles evidence connecting such speech to the asserted sec- Municipal Code § 12.70(C) (1983) is designed to ondary effects. In this case, the Court of Appeals has promote the city's interest in reducing crime. There-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 10 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) fore, the city need not present foreign studies to over- PBS, Inc. v. Dallas, 493 U.S. 215, 256-261, 110 S.Ct. come the summary judgment against it. 596, 107 L.Ed.2d 603 (1990) (SCALIA, J., concur- ring in part and dissenting in part). *443 Before concluding, it should be noted that re- spondents argue, as an alternative basis to sustain the Justice KENNEDY, concurring in the judgment. Court of Appeals' judgment, that the Los Angeles or- dinance is not a typical zoning regulation. Rather, re- Speech can produce tangible consequences. It can spondents explain, the prohibition on multiuse adult change minds. It can prompt actions. These primary establishments is effectively a ban on adult video ar- effects signify the power and the necessity of free cades because no such business exists independently speech. Speech can also cause secondary effects, of an adult bookstore. Brief for Respondents 12-13. however, unrelated to the impact of the speech on its Respondents request that the Court hold that the Los audience. A newspaper factory may cause pollution, Angeles ordinance is not a time, place, and manner and a billboard may obstruct a view. These secondary regulation, and that the Court subject the ordinance to consequences are not always immune from regulation strict scrutiny. This also appears to be the theme of by zoning laws even though they are produced by Justice KENNEDY's concurrence. He contends that speech. "[a] city may not assert that it will reduce secondary Municipal governments know that high concentra- effects by reducing speech in the same proportion." tions of adult businesses can damage the value and Post, at 1742 (opinion concurring in judgment). We the integrity of a neighborhood. The damage is meas- consider that unobjectionable proposition as simply a urable; it is all too real. The law does not require a reformulation of the requirement that an ordinance city to ignore these consequences if it uses its zoning warrants intermediate scrutiny only if it is a time, power in a reasonable way to ameliorate them place, and manner regulation and not a ban. The without suppressing speech. A city's "interest in at- Court of Appeals held, however, that the city's pro- tempting to preserve the quality of urban life is one hibition on the combination of adult bookstores and that must be accorded high respect." Young v. Amer- arcades is not a ban and respondents did not petition ican Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. for review of that determination. 2440, 49 L.Ed.2d 310 (1976) (plurality opinion). Accordingly, we reverse the Court of Appeals' judg- The question in this case is whether Los Angeles can ment granting summary judgment to respondents and seek to reduce these tangible, adverse consequences remand the case for further proceedings. by separating adult speech businesses from one an- It is so ordered. other--even two businesses that have always been un- der the same roof. In my view our precedents may al- Justice SCALIA, concurring. low the city to impose its regulation in the exercise of the zoning authority. The city is not, at least, to be I join the plurality opinion because I think it repres- foreclosed by summary judgment, so I concur in the ents a correct application of our jurisprudence con- judgment. cerning regulation of the "secondary effects" of por- nographic speech. As I have said elsewhere, This separate statement seems to me necessary, however, in a case such as this our First Amendment however, for two reasons. First, Renton v. Playtime **1739 traditions make "secondary effects" analysis Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 quite unnecessary. The Constitution does not prevent L.Ed.2d 29 (1986), described a similar ordinance as those communities that wish to do so from regulating, "content neutral," and I agree with the dissent that the or indeed entirely suppressing, the business of pan- designation *445 is imprecise. Second, in my view, dering *444 sex. See, e.g., Erie v. Pap's A.M., 529 the plurality's application of Renton might constitute U.S. 277, 310, 120 S.Ct. 1382, 146 L.Ed.2d 265 a subtle expansion, with which I do not concur. (2000) (SCALIA, J., concurring in judgment); FW/ I
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In Renton, the Court determined that while the mater- ample, may cause pollution, so a city may seek to re- ial inside adult bookstores and movie theaters is duce the cost of that externality by restricting factor- speech, the consequent sordidness outside is not. The ies to areas far from residential neighborhoods. With challenge is to correct the latter while leaving the careful urban planning a city in this way may reduce former, as far as possible, untouched. If a city can de- the costs of pollution for communities, while at the crease the crime and blight associated with certain same time allowing the productive work of the speech by the traditional exercise of its zoning power, factories to continue. The challenge is to protect the and at the same time leave the quantity and accessib- activity inside while controlling side effects outside. ility of the speech substantially undiminished, there is no First Amendment objection. This is so even if the Such an ordinance might, like a speech restriction, be measure identifies the problem outside by reference "content based." It might, for example, single out to the speech inside--that is, even if the measure is in slaughterhouses for specific zoning treatment, re- that sense content based. stricting them to a particularly remote part of town. Without knowing more, however, one would hardly On the other hand, a city may not regulate the sec- presume that because the ordinance is specific to that ondary effects of speech by suppressing the speech it- business, the city seeks to discriminate against it or self. A city may not, for example, impose a content- help a favored group. One would presume, rather, based fee or tax. See Arkansas Writers' Project, Inc. that the ordinance targets not the business but its par- v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 95 ticular noxious side effects. But cf. Slaughter-House L.Ed.2d 209 (1987) ("[O]fficial scrutiny of the con- Cases, 16 Wall. 36, 21 L.Ed. 394 (1872). The busi- tent of publications as the basis for imposing a tax is ness might well be the city's most valued enterprise; entirely incompatible with the First Amendment's nevertheless, because of the pollution it causes, it guarantee of freedom of the press"). This is true even may warrant special zoning treatment. This sort of if the government purports to justify the fee by refer- singling out is not impermissible content discrimina- ence to secondary effects. See Forsyth County v. Na- tion; it is sensible urban planning. Cf. Village of Euc- tionalist Movement, 505 U.S. 123, 134-135, 112 S.Ct. lid v. Ambler Realty Co., 272 U.S. 365, 388, 47 S.Ct. 2395, 120 L.Ed.2d 101 (1992). Though the inference 114, 71 L.Ed. 303 (1926) ("A nuisance may be may be inexorable that a city could reduce secondary merely a right thing in the wrong place,-- like a pig in effects by reducing speech, this is not a permissible the parlor instead of the barnyard. If the validity of **1740 strategy. The purpose and effect of a zoning the legislative classification for zoning purposes be ordinance must be to reduce secondary effects and fairly debatable, the legislative judgment must be al- not to reduce speech. lowed to control").
A zoning measure can be consistent with the First *447 True, the First Amendment protects speech and Amendment if it is likely to cause a significant de- not slaughterhouses. But in both contexts, the infer- crease in secondary effects and a trivial decrease in ence of impermissible discrimination is not strong. the quantity of speech. It is well documented that An equally strong inference is that the ordinance is multiple adult businesses in close proximity may targeted not at the activity, but at its side effects. If a change the character of a neighborhood *446 for the zoning ordinance is directed to the secondary effects worse. Those same businesses spread across the city of adult speech, the ordinance does not necessarily may not have the same deleterious effects. At least in constitute impermissible content discrimination. A theory, a dispersal ordinance causes these businesses zoning law need not be blind to the secondary effects to separate rather than to close, so negative externalit- of adult speech, so long as the purpose of the law is ies are diminished but speech is not. not to suppress it.
The calculus is a familiar one to city planners, for The ordinance at issue in this case is not limited to many enterprises other than adult businesses also expressive activities. It also extends, for example, to cause undesirable externalities. Factories, for ex- massage parlors, which the city has found to cause
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 12 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) similar secondary effects. See Los Angeles Municipal other kinds of theaters." Id., at 47, 106 S.Ct. 925. The Code §§ 12.70(B)(8) (1978), 12.70(B)(17) (1983), fiction that this sort of ordinance is content neutral- 12.70(C) (1986), as amended. This ordinance, -or "content neutral"--is perhaps more confusing than moreover, is just one part of an elaborate web of helpful, as Justice SOUTER demonstrates, see post, land-use regulations in Los Angeles, all of which are at 1745 (dissenting opinion). It is also not a fiction intended to promote the social value of the land as a that has commanded our consistent adherence. See whole without suppressing some activities or favor- Thomas v. Chicago Park Dist., 534 U.S. 316, 322, ing others. See § 12.02 ("The purpose of this article is and n. 2, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002) to consolidate and coordinate all existing zoning reg- (suggesting that a licensing scheme targeting only ulations and provisions into one comprehensive zon- those businesses purveying sexually explicit speech ing plan ... in order to encourage the most appropriate is not content neutral). These ordinances are content use of land ... and to promote the health, safety, and based, and we should call them so. the general welfare ..."). All this further suggests that the ordinance is more in the nature of a typical land- Nevertheless, for the reasons discussed above, the use restriction and less in the nature of a law sup- central holding of Renton is sound: A zoning restric- pressing speech. tion that is designed to decrease secondary effects and not speech should be subject to intermediate **1741 For these reasons, the ordinance is not so sus- rather than strict scrutiny. Generally, the government pect that we must employ the usual rigorous analysis has no power to restrict speech based on content, but that content-based laws demand in other instances. there are exceptions to the rule. See *449Simon & The ordinance may be a covert attack on speech, but Schuster, Inc. v. Members of N.Y. State Crime Vic- we should not presume it to be so. In the language of tims Bd., 502 U.S. 105, 126-127, 112 S.Ct. 501, 116 our First Amendment doctrine it calls for intermedi- L.Ed.2d 476 (1991) (KENNEDY, J., concurring in ate and not strict scrutiny, as we held in Renton. judgment). And zoning regulations do not automatic- ally raise the specter of impermissible content dis- *448 II crimination, even if they are content based, because In Renton, the Court began by noting that a zoning they have a prima facie legitimate purpose: to limit ordinance is a time, place, or manner restriction. The the negative externalities of land use. As a matter of Court then proceeded to consider the question wheth- common experience, these sorts of ordinances are er the ordinance was "content based." The ordinance more like a zoning restriction on slaughterhouses and "by its terms [was] designed to prevent crime, protect less like a tax on unpopular newspapers. The zoning the city's retail trade, maintain property values, and context provides a built-in legitimate rationale, which generally protec[t] and preserv[e] the quality of [the rebuts the usual presumption that content-based re- city's] neighborhoods, commercial districts, and the strictions are unconstitutional. For this reason, we ap- quality of urban life, not to suppress the expression of ply intermediate rather than strict scrutiny. unpopular views." 475 U.S., at 48, 106 S.Ct. 925 (internal quotation marks omitted). On this premise, III the Court designated the restriction "content neutral." The narrow question presented in this case is whether Ibid. the ordinance at issue is invalid "because the city did not study the negative effects of such combinations The Court appeared to recognize, however, that the of adult businesses, but rather relied on judicially ap- designation was something of a fiction, which, per- proved statutory precedent from other jurisdictions." haps, is why it kept the phrase in quotes. After all, Pet. for Cert. i. This question is actually two ques- whether a statute is content neutral or content based tions. First, what proposition does a city need to ad- is something that can be determined on the face of it; vance in order to sustain a secondary-effects ordin- if the statute describes speech by content then it is ance? Second, how much evidence is required to sup- content based. And the ordinance in Renton "treat[ed] port the proposition? The plurality skips to the theaters that specialize in adult films differently from second question and gives the correct answer; but in
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 13 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) my view more attention must be given to the first. tax may not be justified in this manner. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 107 **1742 At the outset, we must identify the claim a S.Ct. 1722, 95 L.Ed.2d 209 (1987); Forsyth County city must make in order to justify a content-based v. Nationalist Movement, 505 U.S. 123, 112 S.Ct. zoning ordinance. As discussed above, a city must 2395, 120 L.Ed.2d 101 (1992). It is no trick to reduce advance some basis to show that its regulation has the secondary effects by reducing speech or its audience; purpose and effect of suppressing secondary effects, but a city may not attack secondary effects indirectly while leaving the quantity and accessibility of speech by attacking speech. substantially intact. The ordinance may identify the speech based on content, but only as a shorthand for The analysis requires a few more steps. If two adult identifying the secondary effects outside. A city may businesses are under the same roof, an ordinance re- not assert that it will reduce secondary effects by re- quiring them *451 to separate will have one of two ducing speech in the same proportion. On this point, I results: One business will either move elsewhere or agree with Justice SOUTER. See post, at 1746. The close. The city's premise cannot be the latter. It is true rationale of *450 the ordinance must be that it will that cutting adult speech in half would probably re- suppress secondary effects--and not by suppressing duce secondary effects proportionately. But again, a speech. promised proportional reduction does not suffice. Content-based taxes could achieve that, yet these are The plurality's statement of the proposition to be sup- impermissible. ported is somewhat different. It suggests that Los Angeles could reason as follows: (1) "a concentration The premise, therefore, must be that businesses--even of operations in one locale draws ... a greater concen- those that have always been under one roof--will for tration of adult consumers to the neighborhood, and a the most part disperse rather than shut down. True, high density of such consumers either attracts or gen- this premise has its own conundrum. As Justice erates criminal activity"; (2) "having a number of SOUTER writes, "[t]he city ... claims no interest in adult operations in one single adult establishment the proliferation of adult establishments." Post, at draws the same dense foot traffic as having a number 1748. The claim, therefore, must be that this ordin- of distinct adult establishments in close proximity"; ance will cause two businesses to split rather than one (3) "reducing the concentration of adult operations in to close, that the quantity of speech will be substan- a neighborhood, whether within separate establish- tially undiminished, and that total secondary effects ments or in one large establishment, will reduce will be significantly reduced. This must be the ra- crime rates." Ante, at 1735. tionale of a dispersal statute.
These propositions all seem reasonable, and the infer- Only after identifying the proposition to be proved ences required to get from one to the next are sens- can we ask the second part of the question presented: ible. Nevertheless, this syllogism fails to capture an is there sufficient evidence to support the proposi- important part of the inquiry. The plurality's analysis tion? As to this, we have consistently held that a city does not address how speech will fare under the city's must have latitude to experiment, at **1743 least at ordinance. As discussed, the necessary rationale for the outset, and that very little evidence is required. applying intermediate scrutiny is the promise that See, e.g., Renton, 475 U.S., at 51-52, 106 S.Ct. 925 zoning ordinances like this one may reduce the costs ("The First Amendment does not require a city, be- of secondary effects without substantially reducing fore enacting such an ordinance, to conduct new stud- speech. For this reason, it does not suffice to say that ies or produce evidence independent of that already inconvenience will reduce demand and fewer patrons generated by other cities, so long as whatever evid- will lead to fewer secondary effects. This reasoning ence the city relies upon is reasonably believed to be would as easily justify a content-based tax: Increased relevant to the problem that the city addresses"); prices will reduce demand, and fewer customers will Young, 427 U.S., at 71, 96 S.Ct. 2440 ("[T]he city mean fewer secondary effects. But a content-based must be allowed a reasonable opportunity to experi-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 14 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) ment with solutions to admittedly serious problems"); *453 speech whatsoever, and both the city and the Erie v. Pap's A.M., 529 U.S. 277, 300-301, 120 S.Ct. speaker will have their interests well served. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion). As a general matter, courts should not be in the business Only one small step remains to justify the ordinance of second-guessing fact-bound empirical assessments at issue in this case. The city may next infer--from its of city planners. See Renton, supra, at 51-52, 106 study and from its own experience-- that two adult S.Ct. 925. The Los Angeles City Council *452 knows businesses under the same roof are no better than two the streets of Los Angeles better than we do. See next door. The city could reach the reasonable con- Turner Broadcasting System, Inc. v. FCC, 512 U.S. clusion that knocking down the wall between two 622, 665- 666, 114 S.Ct. 2445, 129 L.Ed.2d 497 adult businesses does not ameliorate any undesirable (1994); Erie, supra, at 297-298, 120 S.Ct. 1382 secondary effects of their proximity to one another. If (plurality opinion). It is entitled to rely on that know- the city's first ordinance was justified, therefore, then ledge; and if its inferences appear reasonable, we the second is too. Dispersing two adult businesses un- should not say there is no basis for its conclusion. der one roof is reasonably likely to cause a substan- tial reduction in secondary effects while reducing In this case the proposition to be shown is supported speech very little. by a single study and common experience. The city's study shows a correlation between the concentration IV of adult establishments and crime. Two or more adult These propositions are well established in common businesses in close proximity seem to attract a critical experience and in zoning policies that we have mass of unsavory characters, and the crime rate may already examined, and for these reasons this ordin- increase as a result. The city, therefore, sought to dis- ance is not invalid on its face. If these assumptions perse these businesses. Los Angeles Municipal Code **1744 can be proved unsound at trial, then the or- § 12.70(C) (1983), as amended. This original ordin- dinance might not withstand intermediate scrutiny. ance is not challenged here, and we may assume that The ordinance does, however, survive the summary it is constitutional. judgment motion that the Court of Appeals ordered granted in this case. If we assume that the study supports the original or- dinance, then most of the necessary analysis follows. Justice SOUTER, with whom Justice STEVENS and We may posit that two adult stores next door to each Justice GINSBURG join, and with whom Justice other attract 100 patrons per day. The two businesses BREYER joins as to Part II, dissenting. split apart might attract 49 patrons each. (Two pat- In 1977, the city of Los Angeles studied sections of rons, perhaps, will be discouraged by the inconveni- the city with high and low concentrations of adult ence of the separation--a relatively small cost to business establishments catering to the market for the speech.) On the other hand, the reduction in second- erotic. The city found no certain correlation between ary effects might be dramatic, because secondary ef- the location of those establishments and depressed fects may require a critical mass. Depending on the property values, but it did find some correlation economics of vice, 100 potential customers/victims between areas of higher concentrations of such busi- might attract a coterie of thieves, prostitutes, and oth- ness and higher crime rates. On that basis, Los er ne'er-do-wells; yet 49 might attract none at all. If Angeles followed the examples of other cities in ad- so, a dispersal ordinance would cause a great reduc- opting a zoning ordinance requiring dispersion of tion in secondary effects at very small cost to speech. adult *454 establishments. I assume that the ordin- Indeed, the very absence of secondary effects might ance was constitutional when adopted, see, e.g., increase the audience for the speech; perhaps for Young v. American Mini Theatres, Inc., 427 U.S. 50, every two people who are discouraged by the incon- 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and assume venience of two-stop shopping, another two are en- for purposes of this case that the original ordinance couraged by hospitable surroundings. In that case, remains valid today. [FN1] secondary effects might be eliminated at no cost to
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FN1. Although amicus First Amendment Because content-based regulation applies to expres- Lawyers Association argues that recent stud- sion by very reason of what is said, it carries a high ies refute the findings of adult business cor- risk that expressive limits are imposed for the sake of relations with secondary effects sufficient to suppressing a message that is disagreeable to listeners justify such an ordinance, Brief for First or readers, or the government. See Consolidated Amendment Lawyers Association as Amicus Edison Co. of N.Y. v. Public Serv. Comm'n of N. Y., Curiae 21-23, the issue is one I do not reach. 447 U.S. 530, 536, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980) ("[W]hen regulation is based on the content of The city subsequently amended its ordinance to for- speech, governmental action must be scrutinized bid clusters of such businesses at one address, as in a more carefully to ensure **1745 that communication mall. The city has, in turn, taken a third step to apply has not been prohibited merely because public offi- this amendment to prohibit even a single proprietor cials disapprove the speaker's views" (internal quota- from doing business in a traditional way that com- tion marks omitted)). A restriction based on content bines an adult bookstore, selling books, magazines, survives only on a showing of necessity to serve a le- and videos, with an adult arcade, consisting of open gitimate and compelling governmental interest, com- viewing booths, where potential purchasers of videos bined with least restrictive narrow tailoring to serve can view them for a fee. it, see United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d From a policy of dispersing adult establishments, the 865 (2000); since merely protecting listeners from of- city has thus moved to a policy of dividing them in fense at the message is not a legitimate interest of the two. The justification claimed for this application of government, see Cohen v. California, 403 U.S. 15, the new policy remains, however, the 1977 survey, as 24-25, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971), strict supplemented by the authority of one decided case on scrutiny leaves few survivors. regulating adult arcades in another State. The case authority is not on point, see infra, at 1748, n. 4, and The comparatively softer intermediate scrutiny is re- the 1977 survey provides no support for the breakup served for regulations justified by something other policy. Its evidentiary insufficiency bears emphasis than content of the message, such as a straightfor- and is the principal reason that I respectfully dissent ward restriction going only to the time, place, or from the Court's judgment today. manner of speech or other expression. It is easy to see why review of such a regulation may be relatively re- I laxed. No one has to disagree with any message to This ordinance stands or falls on the results of what find something wrong with a loudspeaker at three in our cases speak of as intermediate scrutiny, generally the morning, see *456Kovacs v. Cooper, 336 U.S. 77, contrasted with the demanding standard applied un- 69 S.Ct. 448, 93 L.Ed. 513 (1949); the sentiment der the First Amendment to a content-based regula- may not provoke, but being blasted out of a sound tion of expression. The variants of middle-tier tests sleep does. In such a case, we ask simply whether the cover a grab bag of restrictive statutes, with a corres- regulation is "narrowly tailored to serve a significant ponding variety of justifications. *455 While spoken governmental interest, and ... leave[s] open ample al- of as content neutral, these regulations are not uni- ternative channels for communication of the informa- formly distinct from the content-based regulations tion." Clark v. Community for Creative Non-Vi- calling for scrutiny that is strict, and zoning of busi- olence, 468 U.S. 288, 293, 104 S.Ct. 3065, 82 nesses based on their sales of expressive adult materi- L.Ed.2d 221 (1984). A middle-tier standard is also al receives mid-level scrutiny, even though it raises a applied to limits on expression through action that is risk of content-based restriction. It is worth being otherwise subject to regulation for nonexpressive clear, then, on how close to a content basis adult purposes, the best known example being the prohibi- business zoning can get, and why the application of a tion on destroying draft cards as an act of protest, middle-tier standard to zoning regulation of adult United States v. O'Brien, 391 U.S. 367, 88 S.Ct. bookstores calls for particular care.
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1673, 20 L.Ed.2d 672 (1968); here a regulation this kind of regulation, though called content neutral, passes muster "if it furthers an important or substan- occupies a kind of limbo between full-blown, con- tial governmental interest ... unrelated to the suppres- tent-based restrictions and regulations that apply sion of free expression" by a restriction "no greater without any reference to the substance of what is than is essential to the furtherance of that interest," said. Id., at 47, 106 S.Ct. 925. id., at 377, 88 S.Ct. 1673. As mentioned already, yet another middle-tier variety is zoning restriction as a **1746 It would in fact make sense to give this kind means of responding to the "secondary effects" of of zoning regulation a First Amendment label of its adult businesses, principally crime and declining own, and if we called it content correlated, we would property values in the neighborhood. Renton v. Play- not only describe it for what it is, but keep alert to a time Theatres, Inc., 475 U.S. 41, 49, 106 S.Ct. 925, risk of content-based regulation that it poses. The risk 89 L.Ed.2d 29 (1986). [FN2] lies in the fact that when a law applies selectively only to speech of particular content, the more pre- FN2. Limiting such effects qualifies as a cisely the content is identified, the greater is the op- substantial governmental interest, and an or- portunity for government censorship. Adult speech dinance has been said to survive if it is refers not merely to sexually explicit content, but to shown to serve such ends without unreason- speech reflecting a favorable view of being explicit ably limiting alternatives. Renton, 475 U.S., about sex and a favorable view of the practices it de- at 50, 106 S.Ct. 925. Because Renton called picts; a restriction on adult content is thus also a re- its secondary-effects ordinance a mere time, striction turning on a particular viewpoint, of which place, or manner restriction and thereby the government may disapprove. glossed over the role of content in second- ary-effects zoning, see infra, at 1745, I be- This risk of viewpoint discrimination is subject to a lieve the soft focus of its statement of the relatively simple safeguard, however. If combating middle-tier test should be rejected in favor secondary effects of property devaluation and crime of the United States v. O'Brien, 391 U.S. is truly the reason for the regulation, it is possible to 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), show by empirical evidence that the effects exist, that formulation quoted above. O'Brien is a they are caused by the expressive activity subject to closer relative of secondary-effects zoning the zoning, and that the zoning can be expected either than mere time, place, or manner regula- to ameliorate them or to enhance the capacity of the tions, as the Court has implicitly recognized. government to combat them (say, by concentrating Erie v. Pap's A.M., 529 U.S. 277, 289, 120 them in one area), without suppressing the expressive S.Ct. 1382, 146 L.Ed.2d 265 (2000) activity itself. This capacity of zoning regulation to (plurality opinion). address the practical problems without eliminating the speech is, after all, the only possible excuse for Although this type of land-use restriction has even speaking of secondary-effects zoning as akin to time, been called a variety of time, place, or manner regu- place, or manner regulations. lation, id., at 46, 106 S.Ct. 925, equating a secondary-ef- fects zoning regulation with a mere regulation of *458 In examining claims that there are causal rela- time, place, or manner jumps over an important dif- tionships between adult businesses and an increase in ference between them. A restriction on loudspeakers secondary effects (distinct from disagreement), and has no obvious relationship to the substance of *457 between zoning and the mitigation of the effects, what is broadcast, while a zoning regulation of busi- stress needs to be placed on the empirical character of nesses in adult expression just as obviously does. the demonstration available. See Metromedia, Inc. v. And while it may be true that an adult business is San Diego, 453 U.S. 490, 510, 101 S.Ct. 2882, 69 burdened only because of its secondary effects, it is L.Ed.2d 800 (1981) ("[J]udgments ... defying object- clearly burdened only if its expressive products have ive evaluation ... must be carefully scrutinized to de- adult content. Thus, the Court has recognized that termine if they are only a public rationalization of an
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 17 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) impermissible purpose"); Young, 427 U.S., at 84, 96 city or available from the distilled experiences of S.Ct. 2440 (Powell, J., concurring) ("[C]ourts must comparable communities. See, e.g., **1747Renton, be alert ... to the possibility of using the power to supra, at 51, 106 S.Ct. 925; Young, supra, at 55, 96 zone as a pretext for suppressing expression"). The S.Ct. 2440. weaker the demonstration of facts distinct from dis- approval of the "adult" viewpoint, the greater the And precisely because this sort of evidence is readily likelihood that nothing more than condemnation of available, reviewing courts need to be wary when the the viewpoint drives the regulation. [FN3] government appeals, not to evidence, but to an uncrit- ical common sense in an effort to justify such a zon- FN3. Regulation of commercial speech, ing restriction. It is not that common sense is always which is like secondary-effects zoning in be- illegitimate in First Amendment demonstration. The ing subject to an intermediate level of First need for independent proof varies with the point that Amendment scrutiny, see Central Hudson has to be established, and zoning can be supported by Gas & Elec. Corp. v. Public Serv. Comm'n common experience when there is no reason to ques- of N. Y., 447 U.S. 557, 569, 100 S.Ct. 2343, tion it. We have appealed to common sense in ana- 65 L.Ed.2d 341 (1980), provides an instruct- logous cases, even if we have disagreed about how ive parallel in the cases enforcing an eviden- far it took us. See Erie v. Pap's A.M., 529 U.S. 277, tiary requirement to ensure that an asserted 300-301, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) rationale does not cloak an illegitimate gov- (plurality opinion); id., at 313, and n. 2, 120 S.Ct. ernmental motive. See, e.g., Rubin v. Coors 1382 (SOUTER, J., concurring in part and dissenting Brewing Co., 514 U.S. 476, 487, 115 S.Ct. in part). But we must be careful about substituting 1585, 131 L.Ed.2d 532 (1995); Edenfield v. common assumptions for evidence, when the evid- Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 ence is as readily available as public statistics and L.Ed.2d 543 (1993). The government's "bur- municipal property valuations, lest we find out when den is not satisfied by mere speculation or the evidence is gathered that the assumptions are conjecture," but only by "demonstrat[ing] highly debatable. The record in this very case makes that the harms [the government] recites are the point. It has become a commonplace, based on real and that its restriction will in fact allevi- our own cases, that concentrating adult establish- ate them to a material degree." Id., at ments drives down the value of neighboring property 770-771, 113 S.Ct. 1792. For unless this used for other purposes. See Renton, 475 U.S., at 51, "critical" requirement is met, Rubin, supra, 106 S.Ct. 925; Young, supra, at 55, 96 S.Ct. 2440. In at 487, 115 S.Ct. 1585, "a State could with fact, however, the city found that general assumption ease restrict commercial speech in the ser- unjustified by its 1977 study. App. 39, 45. vice of other objectives that could not them- selves justify a burden on commercial ex- The lesson is that the lesser scrutiny applied to con- pression," Edenfield, supra, at 771, 113 tent-correlated zoning restrictions is no excuse for a S.Ct. 1792. government's failure to provide a factual demonstra- tion for claims it makes about secondary effects; on Equal stress should be placed on the point that requir- the contrary, this is what demands the demonstration. ing empirical justification of claims about property See, e.g., Schad v. Mount Ephraim, 452 U.S. 61, value or crime is not demanding anything Herculean. 72-74, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). In this Increased crime, like prostitution and muggings, and case, however, the government has not shown that declining property values in areas surrounding adult bookstores containing viewing booths, isolated from businesses, are all readily observable, often to the un- other adult establishments, increase *460 crime or trained eye and certainly to the police officer and urb- produce other negative secondary effects in surround- an planner. These harms can be shown by police re- ing neighborhoods, and we are thus left without sub- ports, crime statistics, and studies of market *459 stantial justification for viewing the city's First value, all of which are within a municipality's capa- Amendment restriction as content correlated but not
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 18 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) simply content based. By the same token, the city has up. The city, of course, claims no interest in the pro- failed to show any causal relationship between the liferation of adult establishments, the ostensible con- breakup policy and elimination or regulation of sec- sequence of splitting the sales and viewing activities ondary effects. so as to produce two stores where once there was one. Nor does the city assert any interest in limiting II the sale of adult expressive material as such, or redu- Our cases on the subject have referred to studies, un- cing the number of adult video booths in the city, for dertaken with varying degrees of formality, showing that would be clear content-based regulation, and the the geographical correlations between the presence or city was careful in its 1977 report to disclaim any concentration of adult business establishments and such intent. App. 54. [FN4] enhanced crime rates or depressed property values. See, e.g., Renton, supra, at 50-51, 106 S.Ct. 925; FN4. Finally, the city does not assert an in- Young, 427 U.S., at 55, 96 S.Ct. 2440. Although we terest in curbing any secondary effects with- have held that intermediate scrutiny of secondary-ef- in the combined bookstore-arcades. In Hart fects legislation does not demand a fresh evidentiary Book Stores, Inc. v. Edmisten, 612 F.2d 821 study of its factual basis if the published results of in- (1979), the Fourth Circuit upheld a similar vestigations elsewhere are "reasonably" thought to be ban in North Carolina, relying in part on a applicable in a different municipal setting, Renton, county health department report on the res- supra, at 51-52, 106 S.Ct. 925, the city here took re- ults of an inspection of several of the com- sponsibility to make its own enquiry, App. 35-162. bined adult bookstore-video arcades in As already mentioned, the study was inconclusive as Wake County, North Carolina. Id., at to any correlation between adult business and lower 828-829, n. 9. The inspection revealed un- property values, id., at 45, 106 S.Ct. 925, and it re- sanitary conditions and evidence of sala- ported no association between higher crime rates and cious activities taking place within the video any isolated adult establishments. But it did find a cubicles. Ibid. The city introduces this case geographical correlation of higher concentrations of to defend its breakup policy although it is adult establishments with higher crime rates, id., at not clear from the opinion how separating 43, 106 S.Ct. 925, and with this study in hand, Los these video arcades from the adult book- Angeles enacted its 1978 ordinance requiring disper- stores would deter the activities that took sion of adult stores and theaters. This original posi- place within them. In any event, while tion of the ordinance is not challenged today, and I Renton v. Playtime Theatres, Inc., 475 U.S. will assume its justification on the theory accepted in 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), al- Young, that eliminating concentrations of adult estab- lowed a city to rely on the experiences and lishments will spread out the documented secondary studies of other cities, it did not dispense effects and render them more manageable that way. with the requirement that "whatever evid- ence the city relies upon [be] reasonably be- **1748 The application of the 1983 amendment now lieved to be relevant to the problem that the before us is, however, a different matter. My concern city addresses," id., at 51-52, 106 S.Ct. 925, is not with the *461 assumption behind the amend- and the evidence relied upon by the Fourth ment itself, that a conglomeration of adult businesses Circuit is certainly not necessarily relevant under one roof, as in a minimall or adult department to the Los Angeles ordinance. Since Novem- store, will produce undesirable secondary effects ber 1977, five years before the enactment of comparable to what a cluster of separate adult estab- the ordinance at issue, Los Angeles has reg- lishments brings about, ante, at 1735. That may or ulated adult video booths, prohibiting doors, may not be so. The assumption that is clearly unsup- setting minimum levels of lighting, and re- ported, however, goes to the city's supposed interest quiring that their interiors be fully visible in applying the amendment to the book and video from the entrance to the premises. Los stores in question, and in applying it to break them
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Angeles Municipal Code §§ 103.101(i), (j). FN6. In Renton, the Court approved a zon- Thus, it seems less likely that the unsanitary ing ordinance "aimed at preventing the sec- conditions identified in Hart Book Stores ondary effects caused by the presence of would exist in video arcades in Los Angeles, even one such theater in a given neighbor- and the city has suggested no evidence that hood." 475 U.S., at 50, 106 S.Ct. 925. The they do. For that reason, Hart Book Stores city, however, does not appeal to that de- gives no indication of a substantial govern- cision to show that combined bookstore-ar- mental interest that the ban on multiuse cades isolated from other adult establish- adult establishments would further. ments, like the theaters in Renton, give rise to negative secondary effects, perhaps re- *462 Rather, the city apparently assumes that a book- cognizing that such a finding would only store selling videos and providing viewing booths call into doubt the sensibility of the city's produces secondary effects of crime, and more crime decision to proliferate such businesses. See than would result from having a single store without ante, at 1736. Although the question may be booths in one part of town and a video arcade in an- open whether a city can rely on the experi- other. [FN5] But the city neither says this in so many ences of other cities when they contradict its words nor proffers any evidence to support even the own studies, that question is not implicated simple proposition that an otherwise lawfully located here, as Los Angeles relies exclusively on its adult bookstore combined with video booths will pro- own study, which is tellingly silent on the duce any criminal effects. The Los Angeles study question whether isolated adult establish- treats such combined stores as one, see id., at 81-82, ments have any bearing on criminal activity. 96 S.Ct. 2440, and draws no general conclusion that individual stores spread apart from other adult estab- *463 The inescapable point is that the city does not lishments (as under the basic Los Angeles ordinance) even claim that the 1977 study provides any support are associated with any degree of criminal activity for its assumption. We have previously accepted above the general norm; nor has the city called the studies, like the city's own study here, as showing a Court's attention to any other empirical study, or even causal connection between concentrations of adult anecdotal police evidence, that supports the city's as- business and identified secondary effects. [FN7] sumption. In fact, if the Los Angeles study sheds any Since that is an acceptable basis for requiring adult light whatever on the city's position, it is the light of businesses to disperse when they are housed in separ- skepticism, for we may fairly suspect that the study ate premises, there is certainly a relevant argument to said nothing about the secondary effects of **1749 be made that restricting their concentration at one freestanding stores because no effects were observed. spacious address should have some effect on sales The reasonable supposition, then, is that splitting and traffic, and effects in the neighborhood. But even some of them up will have no consequence for sec- if that argument may justify a ban on adult "minim- ondary effects whatever. [FN6] alls," ante, at 1735, it provides no support for what the city proposes to do here. The bookstores involved FN5. The plurality indulges the city's as- here are not concentrations of traditionally separate sumption but goes no further to justify it adult businesses that have been studied and shown to than stating what is obvious from what the have an association with secondary effects, and they city's study says about concentrations of exemplify no new form of concentration like a mall adult establishments (but not isolated ones): under one roof. They are combinations of selling and the presence of several adult businesses in viewing activities that have commonly been com- one neighborhood draws "a greater concen- bined, and the plurality itself recognizes, ante, at tration of adult consumers to the neighbor- 1736, that no study conducted by the city has repor- hood, [which] either attracts or generates ted that this type of traditional business, any more criminal activity." Ante, at 1735. than any other adult business, has a correlation with
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 20 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) secondary effects *464 in the absence of concentra- more likely outcome is that the stand-alone tion with other adult establishments in the neighbor- video store will go out of business. (Of hood. And even if splitting viewing booths from the course, the bookstore owner could, consist- bookstores that continue to sell videos were to turn ently with the ordinance, continue to operate some customers away (or send them in search of video booths at no charge, but if this were video arcades in other neighborhoods), it is nothing always commercially feasible then the city but speculation to think that marginally lower traffic would face the separate problem that under to one store would have any measurable effect on the no theory could a rule simply requiring that neighborhood, let alone an effect on associated crime video booths be operated for free be said to that has never been shown to exist in the first place. reduce secondary effects.) [FN8] **1750 Nor is the plurality's position bolstered, as it FN7. As already noted, n. 1, supra, amicus seems to think, ante, at 1736, by relying on the state- First Amendment Lawyers Association ar- ment in Renton that courts should allow cities a " gues that more recent studies show no such 'reasonable opportunity to experiment with solutions thing, but this case involves no such chal- to admittedly serious problems,' " 475 U.S., at 52, lenge to the previously accepted causal con- 106 S.Ct. 925. The plurality overlooks a key distinc- nection. tion between the zoning regulations at issue in Renton and *465 Young (and in Los Angeles as of FN8. Justice KENNEDY would indulge the 1978), and this new Los Angeles breakup require- city in this speculation, so long as it could ment. In those two cases, the municipalities' substan- show that the ordinance will "leav[e] the tial interest for purposes of intermediate scrutiny was quantity and accessibility of speech substan- an interest in choosing between two strategies to deal tially intact." Ante, at 1742 (opinion concur- with crime or property value, each strategy tied to the ring in judgment). But the suggestion that businesses' location, which had been shown to have a the speculated consequences may justify causal connection with the secondary effects: the mu- content-correlated regulation if speech is nicipality could either concentrate businesses for a only slightly burdened turns intermediate concentrated regulatory strategy, or disperse them in scrutiny on its head. Although the goal of in- order to spread out its regulatory efforts. The limita- termediate scrutiny is to filter out laws that tions on location required no further support than the unduly burden speech, this is achieved by factual basis tying location to secondary effects; the examining the asserted governmental in- zoning approved in those two cases had no effect on terest, not the burden on speech, which must the way the owners of the stores carried on their adult simply be no greater than necessary to fur- businesses beyond controlling location, and no heav- ther that interest. Erie, 529 U.S., at 301, 120 ier burden than the location limit was approved by S.Ct. 1382; see also n. 2, supra. Nor has this Court. Justice KENNEDY even shown that this or- dinance leaves speech "substantially intact." The Los Angeles ordinance, however, does impose a He posits an example in which two adult heavier burden, and one lacking any demonstrable stores draw 100 customers, and each busi- connection to the interest in crime control. The city ness operating separately draws 49. Ante, at no longer accepts businesses as their owners choose 1743. It does not follow, however, that a to conduct them within their own four walls, but bars combined bookstore-arcade that draws 100 a video arcade in a bookstore, a combination shown customers, when split, will yield a bookstore by the record to be commercially natural, if not uni- and arcade that together draw nearly that versal. App. 47-51, 229-230, 242. Whereas Young many customers. Given the now double out- and Renton gave cities the choice between two lays required to operate the businesses at strategies when each was causally related to the city's different locations, see infra, at 1751, the far interest, the plurality today gives Los Angeles a right
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 122 S.Ct. 1728 Page 21 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 Fla. L. Weekly Fed. S 267 (Cite as: 535 U.S. 425, 122 S.Ct. 1728) to "experiment" with a First Amendment restriction a viewpoint is right to the point here, as witness a fact in response to a problem of increased crime that the that involves no guesswork. If we take the city's city has never even shown to be associated with com- breakup policy at its face, enforcing it will mean that bined bookstore-arcades standing alone. But the gov- in every case two establishments will operate instead ernment's freedom of experimentation cannot dis- of the traditional one. Since the city presumably does place its burden under the intermediate scrutiny not wish **1751 merely to multiply adult establish- standard to show that the restriction on speech is no ments, it makes sense to ask what offsetting gain the greater than essential to realizing an important object- city may obtain from its new breakup policy. The an- ive, in this case policing crime. Since we cannot swer may lie in the fact that two establishments in make even a best guess that the city's breakup policy place of one will entail two business overheads in will have any effect on crime *466 or law enforce- place of one: two monthly rents, two electricity bills, ment, we are a very far cry from any assurance two payrolls. Every month business will be more ex- against covert content-based regulation. [FN9] pensive than it used to be, perhaps even twice as much. That sounds like a good strategy for driving FN9. The plurality's assumption that the out expressive adult businesses. It sounds, in other city's "motive" in applying secondary-effects words, like a policy of content-based regulation. zoning can be entirely compartmentalized from the proffer of evidence required to jus- I respectfully dissent. tify the zoning scheme, ante, at 1737, is in- dulgent to an unrealistic degree, as the re- 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670, 70 cord in this case shows. When the original USLW 4369, 30 Media L. Rep. 1769, 02 Cal. Daily dispersion ordinance was enacted in 1978, Op. Serv. 4067, 2002 Daily Journal D.A.R. 5167, 15 the city's study showing a correlation Fla. L. Weekly Fed. S 267 between concentrations of adult business Briefs and Other Related Documents (Back to top) and higher crime rates showed that the dis- persal of adult businesses was causally re- • 2001 WL 1577190, 70 USLW 3382 (Oral Argu- lated to the city's law enforcement interest, ment) Oral Argument (Dec. 04, 2001) and that in turn was a fair indication that the city's concern was with the secondary effect • 2001 WL 1104728 (Appellate Brief) PETITION- of higher crime rates. When, however, the ER'S REPLY BRIEF (Sep. 18, 2001) city takes the further step of breaking up businesses with no showing that a tradition- • 2001 WL 1575796 (Appellate Brief) RESPOND- ally combined business has any association ENTS' BRIEF ON THE MERITS (Aug. 17, 2001) with a higher crime rate that could be af- • 2001 WL 950922 (Appellate Brief) BRIEF fected by the breakup, there is no indication AMICUS CURIAE OF THE DKT LIBERTY that the breakup policy addresses a second- PROJECT IN SUPPORT OF RESPONDENTS (Aug. ary effect, but there is reason to doubt that 17, 2001) secondary effects are the city's concern. The plurality seems to ask us to shut our eyes to • 2001 WL 950921 (Appellate Brief) BRIEF AND the city's failings by emphasizing that this APPENDIX OF THE FIRST AMENDMENT LAW- case is merely at the stage of summary judg- YERS ASSOCIATION AS AMICUS CURIAE IN ment, ante, at 1736, but ignores the fact that SUPPORT OF AFFIRMANCE (Aug. 16, 2001) at this summary judgment stage the city has made it plain that it relies on no evidence • 2001 WL 965537 (Appellate Brief) BRIEF OF beyond the 1977 study, which provides no AMERICAN BOOKSELLERS FOUNDATION support for the city's action. FOR FREE EXPRESSION, FEMINISTS FOR FREE EXPRESSION, FREEDOM TO READ FOUNDA- And concern with content-based regulation targeting
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TION, INTERNATIONAL PERIODICAL DIS- • 2001 WL 34091925 (Appellate Petition, Motion TRIBUTORS ASSOCIATION, PUBLISHERS and Filing) Reply to Brief in Opposition (Jan. 17, MARKETING ASSOCIATION, and VIDEO SOFT- 2001)Original Image of this Document (PDF) WARE DEALERS ASSOCIATION AS AM ICI CURIAE IN SUPPORT OF RESPONDENTS (Aug. • 2001 WL 34091984 (Appellate Petition, Motion 15, 2001) and Filing) Brief of Amici Curiae 118 California Cit- ies in Support of Petition for Writ of Certiorari (Jan. • 2001 WL 521453 (Appellate Brief) BRIEF OF THE 05, 2001)Original Image of this Document with Ap- U.S. CONFERENCE OF MAYORS, NATIONAL pendix (PDF) LEAGUE OF CITIES, NATIONAL ASSOCIATION OF COUNTIES, NATIONAL CONFERENCE OF • 2000 WL 33979552 (Appellate Petition, Motion STATE LEGISLATURES, NATIONAL GOV- and Filing) Petition for Writ of Certiorari (Nov. 17, ERNORS ASSOCIATION, INTERNATIONAL 2000)Original Image of this Document with Ap- CITY/COUNTY MANAGEMENT ASSOCIATION, pendix (PDF) COUNCIL OF STATE GOVERNM ENTS, AND • 00-799 (Docket) (Nov. 17, 2000) INTERNATIONAL MUNICIPAL LAWYERS AS- SOCIATION AS AMICI CURIAE SUPPORTING END OF DOCUMENT PETITIONER (May. 15, 2001)
• 2001 WL 540507 (Appellate Brief) BRIEF OF OHIO AND 24 STATES AS AMICUS CURIAE IN SUPPORT OF PETITIONER (May. 15, 2001)
• 2001 WL 515060 (Appellate Brief) BRIEF OF AMICI CURIAE AMERICAN PLANNING ASSO- CIATION AND COMMUNITY DEFENSE COUN- SEL IN SUPPORT OF THE CITY OF LOS ANGELES (May. 14, 2001)
• 2001 WL 535665 (Appellate Brief) BRIEF FOR THE PETITIONER (May. 14, 2001)
• 2001 WL 515065 (Appellate Brief) BRIEF AMICUS CURIAE OF MORALITY IN MEDIA, INC. IN SUPPORT OF PETITIONER (May. 11, 2001)
• 2001 WL 34091983 (Appellate Petition, Motion and Filing) Brief of Capitol Resource Institute & Campaign for California Families as Amici Curiae in Support of Petitioner (May. 02, 2001)Original Image of this Document (PDF)
• 2001 WL 476080 (Appellate Brief) BRIEF OF CAPITOL RESOURCE INSTITUTE & CAM- PAIGN FOR CALIFORNIA FAMILIES AS AMICI CURIAE IN SUPPORT OF PETITIONER (May. 02, 2001)
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[2] Constitutional Law 46(1) 92k46(1) Most Cited Cases Briefs and Other Related Documents Suit by operator of establishment featuring nude erot- ic dancing, challenging constitutionality of city's pub- Supreme Court of the United States lic indecency ordinance proscribing nudity in public CITY OF ERIE, et al., Petitioners, places was not rendered moot by closing of the estab- v. lishment, since operator was still incorporated, and PAP'S A.M. tdba "Kandyland". could have decided to again operate nude dancing es- No. 98-1161. tablishment in city; "advanced age" of owner did not Argued Nov. 10, 1999. make it "absolutely clear" that life of quiet retirement Decided March 29, 2000. was his only reasonable expectation, and city had on- going injury because it was barred from enforcing or- Operator of establishment featuring nude erotic dan- dinance. cing brought action challenging constitutionality of city's public indecency ordinance proscribing nudity [3] Constitutional Law 90.4(2) in public places. The Court of Common Pleas, Erie 92k90.4(2) Most Cited Cases County, Civil Division, No. 1994-60059, Shad Con- [3] Constitutional Law 90.4(3) nelly, A.J., declared ordinance unconstitutional. On 92k90.4(3) Most Cited Cases appeal, the Pennsylvania Commonwealth Court, 674 Being "in a state of nudity" is not inherently express- A.2d 338, Nos. 445 and 446 C.D. 1995, reversed. ive condition, but erotic nude dancing is "expressive Operator appealed. The Pennsylvania Supreme Court, conduct," within outer ambit of First Amendment's Nos. 016 and 017 W.D. Appeal Docket 1997, re- protection. (Per Justice O'Connor with two Justices versed. Certiorari was granted, and operator moved to and the Chief Justice concurring, and two Justices dismiss case as moot. The Supreme Court, Justice concurring in judgment). U.S.C.A. Const.Amend. 1. O'Connor, held that: (1) case was not rendered moot by closing of the establishment; (2) ordinance was [4] Constitutional Law 90.1(1) content-neutral regulation; and (3) ordinance satisfied 92k90.1(1) Most Cited Cases O'Brien standard for restrictions on symbolic speech. If governmental purpose in regulating expression is unrelated to suppression of expression, then regula- Reversed and remanded. tion need only satisfy "less stringent" O'Brien stand- Justice Scalia concurred in judgment and filed opin- ard for evaluating restrictions on symbolic speech, ion in which Justice Thomas joined. but if government interest is related to content of ex- pression, regulation must be justified under more de- Justice Souter concurred in part and dissented in part manding standard. (Per Justice O'Connor with two and filed opinion. Justices and the Chief Justice concurring, and two Justices concurring in judgment). U.S.C.A. Justice Stevens dissented and filed opinion in which Const.Amend. 1 Justice Ginsburg joined. [5] Constitutional Law 90.4(2) West Headnotes 92k90.4(2) Most Cited Cases Government restrictions on public nudity should be [1] Federal Courts 12.1 evaluated under framework set forth in O'Brien for 170Bk12.1 Most Cited Cases content-neutral restrictions on symbolic speech. (Per Case is moot when issues presented are no longer Justice O'Connor with two Justices and the Chief "live" or parties lack legally cognizable interest in Justice concurring, and two Justices concurring in outcome.
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 2 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) judgment). U.S.C.A. Const.Amend. 1. [9] Public Amusement and Entertainment 9(2) [6] Constitutional Law 90.4(2) 315Tk9(2) Most Cited Cases 92k90.4(2) Most Cited Cases (Formerly 376k3.50 Theaters and Shows) Ordinance proscribing nudity in public places satis- [6] Constitutional Law 90.4(3) fied O'Brien standard for restrictions on symbolic 92k90.4(3) Most Cited Cases speech; city's efforts to protect public health and Ordinance banning all public nudity, regardless of safety were clearly within its police powers, ordin- whether that nudity was accompanied by expressive ance furthered city's interest in combating harmful activity, was content-neutral regulation and thus sub- secondary effects associated with nude dancing, gov- ject to "less stringent" O'Brien standard for evaluat- ernment's interest was unrelated to suppression of ing restrictions on symbolic speech; ordinance was free expression, and incidental impact on expressive aimed at combating crime and other secondary ef- element of nude dancing was de minimis. (Per Justice fects caused by presence of adult entertainment estab- O'Connor with two Justices and the Chief Justice lishments. (Per Justice O'Connor with two Justices concurring, and two Justices concurring in judg- and the Chief Justice concurring, and two Justices ment). U.S.C.A. Const.Amend. 1. concurring in judgment). U.S.C.A. Const.Amend. 1. [10] Constitutional Law 90.4(3) [7] Constitutional Law 70.3(2) 92k90.4(3) Most Cited Cases 92k70.3(2) Most Cited Cases In demonstrating that secondary effects pose threat Supreme Court will not strike down otherwise consti- that justify regulation of nude dancing, city need not tutional statute on basis of alleged illicit motive. (Per conduct new studies or produce evidence independ- Justice O'Connor with two Justices and the Chief ent of that already generated by other cities, so long Justice concurring, and two Justices concurring in as whatever evidence city relies upon is reasonably judgment). believed to be relevant to problem that city addresses. [8] Constitutional Law 90.1(1) (Per Justice O'Connor with two Justices and the Chief 92k90.1(1) Most Cited Cases Justice concurring, and two Justices concurring in Under O'Brien standard for evaluating restrictions on judgment). U.S.C.A. Const.Amend. 1. symbolic speech, court inquires whether government [11] Constitutional Law 90.4(3) regulation is within constitutional power of govern- 92k90.4(3) Most Cited Cases ment to enact, whether regulation furthers important [11] Public Amusement and Entertainment or substantial government interest, whether govern- 9(2) ment interest is unrelated to suppression of free ex- 315Tk9(2) Most Cited Cases pression, and whether restriction is no greater than is (Formerly 376k3.50 Theaters and Shows) essential to furtherance of the government interest. Because nude dancing at establishment was of same U.S.C.A. Const.Amend. 1. character as adult entertainment at issue in prior Su- [9] Constitutional Law 90.4(2) preme Court opinions, it was reasonable for city to 92k90.4(2) Most Cited Cases conclude that such nude dancing was likely to pro- duce same secondary effects, and, to justify ordin- [9] Constitutional Law 90.4(3) ance regulating nude dancing, city could reasonably 92k90.4(3) Most Cited Cases rely on evidentiary foundation set forth in Supreme Court opinions to effect that secondary effects were [9] Municipal Corporations 595 caused by presence of even one adult entertainment 268k595 Most Cited Cases establishment in given neighborhood; city was not re- quired to develop specific evidentiary record support- [9] Obscenity 2.5 ing ordinance. (Per Justice O'Connor with two 281k2.5 Most Cited Cases Justices and the Chief Justice concurring, and two
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Justices concurring in judgment). pression. Because the ordinance was not content neutral, it was subject to strict scrutiny. The court [12] Administrative Law and Procedure 459 held that the ordinance failed the narrow tailoring re- 15Ak459 Most Cited Cases quirement of strict scrutiny. After this Court granted As long as party has opportunity to respond, adminis- certiorari, Pap's filed a motion to dismiss the case as trative agency may take official notice of "legislative moot, noting that Kandyland no longer operated as a facts" within its special knowledge, and is not con- nude dancing club, and that Pap's did not operate fined to evidence in record in reaching its expert such a club at any other location. This Court denied judgment. (Per Justice O'Connor with two Justices the motion. and the Chief Justice concurring, and two Justices concurring in judgment). Held: The judgment is reversed, and the case is re- **1384 Syllabus [FN*] manded. FN* The syllabus constitutes no part of the opinion of the Court but has been prepared 553 Pa. 348, 719 A.2d 273, reversed and remanded. by the Reporter of Decisions for the con- Justice O'CONNOR delivered the opinion of the venience of the reader. See United States v. Court with respect to Parts I and II, concluding that Detroit Timber & Lumber Co., 200 U.S. the case is not moot. A case is moot when the issues 321, 337, 26 S.Ct. 282, 50 L.Ed. 499. presented are no longer "live" or the parties lack a Erie, Pennsylvania, enacted an ordinance making it a legally cognizable interest in the outcome. County of summary offense to knowingly or intentionally ap- Los Angeles v. Davis, 440 U.S. 625, 631, 99 S.Ct. pear in public in a "state of nudity." Respondent 1379, 59 L.Ed.2d 642. Simply closing Kandyland is Pap's A.M. (hereinafter Pap's), a Pennsylvania cor- not sufficient to moot the case because Pap's is still poration, operated "Kandyland," an Erie establish- incorporated under Pennsylvania *278 law, and could ment featuring totally nude erotic dancing by wo- again decide to operate a nude dancing establishment men. To comply with the ordinance, these dancers in Erie. Moreover, Pap's failed, despite its obligation had to wear, at a minimum, "pasties" and a "G- to the Court, to mention the potential mootness issue string." Pap's filed suit against Erie and city offi- in its brief in opposition, which was filed after cials, seeking declaratory relief and a permanent in- Kandyland was closed and the property sold. See junction against the ordinance's enforcement. The Board of License Comm'rs of Tiverton v. Pastore, Court of Common Pleas struck down the ordinance 469 U.S. 238, 240, 105 S.Ct. 685, 83 L.Ed.2d 618. as unconstitutional, but the Commonwealth Court re- In any event, this is not a run of the mill voluntary versed. The Pennsylvania Supreme Court in turn re- cessation case. Here it is the plaintiff who, having versed, finding that the ordinance's public nudity sec- prevailed below, seeks to have the case declared tions violated Pap's right to freedom of expression as moot. And it is the defendant city that seeks to in- protected by the First and Fourteenth Amendments. voke the federal judicial power to obtain this Court's The Pennsylvania court held that nude dancing is ex- review of the decision. Cf. ASARCO Inc. v. Kadish, pressive conduct entitled to some quantum of protec- 490 U.S. 605, 617-618, 109 S.Ct. 2037, 104 L.Ed.2d tion under the First Amendment, a view that the court 696. The city has an ongoing injury because it is noted was endorsed by eight Members of this Court barred from enforcing the ordinance's public nudity in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 provisions. If the ordinance is found constitutional, S.Ct. 2456, 115 L.Ed.2d 504. The Pennsylvania then Erie can enforce it, and the availability of such court explained that, although one stated purpose of relief is sufficient to prevent the case from being the ordinance was to combat negative secondary ef- moot. See Church of Scientology of Cal. v. United fects, there was also an unmentioned purpose to "im- States, 506 U.S. 9, 13, 113 S.Ct. 447, 121 L.Ed.2d pact negatively on the erotic message of the dance." 313. And Pap's still has a concrete stake in the case's Accordingly, the Pennsylvania court concluded that outcome because, to the extent it has an interest in re- the ordinance was related to the suppression of ex- suming operations, it **1385 has an interest in pre-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 4 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) serving the judgment below. This Court's interest in that is not how the Pennsylvania Supreme Court in- preventing litigants from attempting to manipulate its terpreted that language. Rather, the Pennsylvania jurisdiction to insulate a favorable decision from re- Supreme Court construed the preamble to mean that view further counsels against a finding of mootness. one purpose of the ordinance was to combat negative See, e.g., United States v. W.T. Grant Co., 345 U.S. secondary effects. That is, the ordinance is aimed at 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303. Pp. 1390- combating crime and other negative secondary ef- 1391. fects caused by the presence of adult entertainment establishments like Kandyland, and not at suppress- Justice O'CONNOR, joined by THE CHIEF ing the erotic message conveyed by this type of nude JUSTICE, Justice KENNEDY, and Justice BREYER, dancing. See 391 U.S., at 382, 88 S.Ct. 1673; see concluded in Parts III and IV that: also Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333. The Pennsylvania Supreme 1. Government restrictions on public nudity such as Court's ultimate conclusion that the ordinance was Erie's ordinance should be evaluated under the frame- nevertheless content based relied on Justice White's work set forth in United States v. O'Brien, 391 U.S. position in dissent in Barnes that a ban of this type 367, 88 S.Ct. 1673, 20 L.Ed.2d 672, for content-neut- necessarily has the purpose of suppressing the erotic ral restrictions on symbolic speech. Although being message of the dance. That view was rejected by a "in a state of nudity" is not an inherently expressive majority of the Court in Barnes, and is here rejected condition, nude dancing of the type at issue here is again. Pap's argument that the ordinance is "aimed" expressive conduct that falls within the outer ambit of at suppressing expression through a ban on nude dan- the First Amendment's protection. See, e.g., Barnes, cing is really an argument that Erie also had an illicit supra, at 565-566, 111 S.Ct. 2456 (plurality opin- motive in enacting the ordinance. However, this ion). What level of scrutiny applies is determined by Court will not strike down an otherwise constitutional whether the ordinance is related to the suppression of statute on the basis of an alleged illicit expression. E.g., Texas v. Johnson, 491 U.S. 397, motive. O'Brien, supra, at 382-383, 88 S.Ct. 1673. 403, 109 S.Ct. 2533, 105 L.Ed.2d 342. If the gov- Even if Erie's public nudity ban has some minimal ef- ernmental purpose in enacting the ordinance is unre- fect on the erotic message by muting that portion of lated to such suppression, the ordinance need only the expression that occurs when the last stitch is satisfy the "less stringent," intermediate O'Brien dropped, the dancers at Kandyland and other such es- standard. E.g., Johnson, supra, at 403, 109 S.Ct. tablishments are free to perform wearing pasties and 2533. If the governmental interest is related to the G-strings. Any effect on the overall expression is expression's content, however, the ordinance falls therefore de minimis. If States are to be able to regu- outside O'Brien and must be justified under the more late secondary effects, then such de minimis intru- demanding, strict scrutiny standard. Johnson, supra, sions on **1386 expression cannot be sufficient to at 403, 109 S.Ct. 2533. An almost identical public render the ordinance content based. See, e.g., Clark nudity ban was held not to violate the First Amend- v. Community for Creative Non-Violence, 468 U.S. ment in Barnes, although no five Members of the 288, 299, 104 S.Ct. 3065, 82 L.Ed.2d 221. Thus, Court agreed on a single rationale for that conclu- Erie's ordinance is valid if it satisfies the O'Brien sion. The ordinance here, like the statute in Barnes, test. Pp. 1391-1395. is on its face a general prohibition on public nudity. By its terms, it regulates conduct alone. It does not 2. Erie's ordinance satisfies O'Brien's four-factor target *279 nudity that contains an erotic mes- test. First, the ordinance is within Erie's constitu- sage; rather, it bans all public nudity, regardless of tional power to enact because the city's efforts to pro- whether that nudity is accompanied by expressive tect public health and safety are clearly within its po- activity. Although Pap's contends that the ordinance lice powers. Second, the ordinance furthers the im- is related to the suppression of expression because its portant government interests of regulating conduct preamble suggests that its actual purpose is to prohib- through a public nudity ban and of combating the it erotic dancing of the type performed at Kandyland,
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 5 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) harmful secondary effects associated with nude dan- expressive element of nude dancing is de minimis. cing. In terms of demonstrating that such secondary The pasties and G-string requirement is a minimal re- effects pose a threat, the city need not conduct new striction in furtherance of the asserted government in- studies or produce evidence independent of that terests, and the restriction leaves ample capacity to already generated by other cities, so long as the evid- convey the dancer's erotic message. See, e.g., ence relied on is reasonably believed to be relevant to Barnes, 501 U.S., at 572, 111 S.Ct. 2456. Pp. 1395- the problem addressed. Renton v. Playtime Theatres, 1398. Inc., 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29. Erie could reasonably *280 rely on the eviden- Justice SCALIA, joined by Justice THOMAS, agreed tiary foundation set forth in Renton and Young v. that the Pennsylvania Supreme Court's decision must American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. be reversed, but disagreed with the mode of analysis 2440, 49 L.Ed.2d 310, to the effect that secondary ef- that should be applied. Erie self-consciously fects are caused by the presence of even one adult en- modeled its ordinance on the public nudity statute up- tertainment establishment in a given neighborhood. held in Barnes v. Glen Theatre, Inc., 501 U.S. 560, See Renton, supra, at 51-52, 106 S.Ct. 925. In fact, 111 S.Ct. 2456, 115 L.Ed.2d 504, calculating (one Erie expressly relied on Barnes and its discussion of would have supposed reasonably) that the secondary effects, including its reference to Renton Pennsylvania courts would consider themselves and American Mini Theatres. The evidentiary stand- bound by this Court's judgment on a question of fed- ard described in Renton controls here, and Erie meets eral constitutional law. That statute was constitu- that standard. In any event, the ordinance's preamble tional not because it survived some lower level of also relies on the city council's express findings that First Amendment scrutiny, but because, as a **1387 "certain lewd, immoral activities carried on in public general law regulating conduct and not specifically places for profit are highly detrimental to the public directed at expression, it was not subject to First health, safety and welfare ...." The council members, Amendment scrutiny at all. Id., at 572, 111 S.Ct. familiar with commercial downtown Erie, are the in- 2456 (SCALIA, J., concurring in *281 judgment). dividuals who would likely have had first-hand Erie's ordinance, too, by its terms prohibits not knowledge of what took place at, and around, nude merely nude dancing, but the act-- irrespective of dancing establishments there, and can make particu- whether it is engaged in for expressive purposes--of larized, expert judgments about the resulting harmful going nude in public. The facts that the preamble secondary effects. Cf., e.g., FCC v. National Cit- explains the ordinance's purpose, in part, as limiting a izens Comm. for Broadcasting, 436 U.S. 775, 98 recent increase in nude live entertainment, that city S.Ct. 2096, 56 L.Ed.2d 697. The fact that this sort of councilmembers in supporting the ordinance com- leeway is appropriate in this case, which involves a mented to that effect, and that the ordinance includes content-neutral restriction that regulates conduct, in the definition of nudity the exposure of devices says nothing whatsoever about its appropriateness in simulating that condition, neither make the law any a case involving actual regulation of First Amend- less general in its reach nor demonstrate that what the ment expression. Also, although requiring dancers municipal authorities really find objectionable is ex- to wear pasties and G-strings may not greatly reduce pression rather than public nakedness. That the city these secondary effects, O'Brien requires only that made no effort to enforce the ordinance against a pro- the regulation further the interest in combating such duction of Equus involving nudity that was being effects. The ordinance also satisfies O'Brien's third staged in Erie at the time the ordinance became ef- factor, that the government interest is unrelated to the fective does not render the ordinance discriminatory suppression of free expression, as discussed supra. on its face. The assertion of the city's counsel in the The fourth O'Brien factor--that the restriction is no trial court that the ordinance would not cover theat- greater than is essential to the furtherance of the gov- rical productions to the extent their expressive activ- ernment interest--is satisfied as well. The ordinance ity rose to a higher level of protected expression regulates conduct, and any incidental impact on the simply meant that the ordinance would not be en-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 6 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) forceable against such productions if the Constitution junction against its enforcement. The Pennsylvania forbade it. That limitation does not cause the ordin- Supreme Court, although noting that this Court in ance to be not generally applicable, in the relevant Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. sense of being targeted against expressive conduct. 2456, 115 L.Ed.2d 504 (1991), had upheld an Indiana Moreover, even if it could be concluded that Erie ordinance that was "strikingly **1388 similar" to specifically singled out the activity of nude dancing, Erie's, found that the public nudity sections of the or- the ordinance still would not violate the First Amend- dinance violated respondent's right to freedom of ex- ment unless it could be proved (as on this record it pression under the United States Constitution. 553 could not) that it was the communicative character of Pa. 348, 356, 719 A.2d 273, 277 (1998). This case nude dancing that prompted the ban. See id., at 577, raises the question whether the Pennsylvania Su- 111 S.Ct. 2456. There is no need to identify "second- preme Court properly evaluated the ordinance's con- ary effects" associated with nude dancing that Erie stitutionality under the First Amendment. We hold could properly seek to eliminate. The traditional that Erie's ordinance is a content-neutral regulation power of government to foster good morals, and the that satisfies the four-part test of United States v. acceptability of the traditional judgment that nude O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d public dancing itself is immoral, have not been re- 672 (1968). Accordingly, we reverse the decision of pealed by the First Amendment. Pp. 1400-1402. the Pennsylvania Supreme Court and remand for the consideration of any remaining issues. O'CONNOR, J., announced the judgment of the Court and delivered the opinion of the Court with re- I spect to Parts I and II, in which REHNQUIST, C.J., On September 28, 1994, the city council for the city and KENNEDY, SOUTER, and BREYER, JJ., of Erie, Pennsylvania, enacted Ordinance 75-1994, a joined, and an opinion with respect to Parts III and public indecency ordinance that makes it a summary IV, in which REHNQUIST, C.J., and KENNEDY offense to knowingly or intentionally appear in public and BREYER, JJ., joined. SCALIA, J., filed an in a "state of nudity." [FN*] *284 Respondent Pap's, opinion concurring in the judgment, in which a Pennsylvania corporation, operated an establish- THOMAS, J., joined, post, p. 1398. SOUTER, J., ment in Erie known as "Kandyland" that featured filed an opinion concurring in part and dissenting in totally nude erotic dancing performed by women. part, post, p. 1402. STEVENS, J., filed a dissenting To comply with the ordinance, these dancers must opinion, in which GINSBURG, J., joined, post, p. wear, at a minimum, "pasties" and a "G-string." On 1406. October 14, 1994, two days after the ordinance went into effect, Pap's filed a complaint against the city of Gregory A. Karle, Erie, PA, for petitioners. Erie, the mayor of the city, and members of the city council, seeking declaratory relief and a permanent *282 John H. Weston, Los Angeles, CA, for respond- injunction against the enforcement of the ordinance. ent. FN* Ordinance 75-1994, codified as Article Justice O'CONNOR announced the judgment of the 711 of the Codified Ordinances of the city of Court and delivered the opinion of the Court with re- Erie, provides in relevant part: spect to Parts I and II, and an opinion with respect to "1. A person who knowingly or intention- Parts III and IV, in which THE CHIEF JUSTICE, ally, in a public place: Justice KENNEDY, and Justice BREYER join. "a. engages in sexual intercourse The city of Erie, Pennsylvania, enacted an ordinance "b. engages in deviate sexual intercourse as banning public nudity. Respondent Pap's A.M. defined by the Pennsylvania Crimes Code (hereinafter *283 Pap's), which operated a nude dan- "c. appears in a state of nudity, or cing establishment in Erie, challenged the constitu- "d. fondles the genitals of himself, herself or tionality of the ordinance and sought a permanent in- another person commits Public Indecency, a Summary Offense.
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 7 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382)
"2. "Nudity" means the showing of the hu- because it conveys no message. Id., at 354, 719 A.2d, man male or female genital [sic], pubic area at 276. Nude dancing, however, is expressive con- or buttocks with less than a fully opaque duct that is entitled to some quantum of protection covering; the showing of the female breast under the **1389 First Amendment, a view that the with less than a fully opaque covering of any Pennsylvania Supreme Court noted was endorsed by part of the nipple; the exposure of any eight Members of this Court in Barnes. 553 Pa., at device, costume, or covering which gives 354, 719 A.2d, at 276. the appearance of or simulates the genitals, pubic hair, natal cleft, perineum anal region The Pennsylvania court next inquired whether the or pubic hair region; or the exposure of any government interest in enacting the ordinance was device worn as a cover over the nipples and/ content neutral, explaining that regulations that are or areola of the female breast, which device unrelated to the suppression of expression are not simulates and gives the realistic appearance subject to strict scrutiny but to the less stringent of nipples and/or areola. standard of United States v. O'Brien, supra, at 377, "3. "Public Place" includes all outdoor 88 S.Ct. 1673. To answer the question whether the places owned by or open to the general pub- ordinance is content based, the court turned to our de- lic, and all buildings and enclosed places cision in Barnes. 553 Pa., at 355-356, 719 A.2d, at owned by or open to the general public, in- 277. Although the Pennsylvania court noted that the cluding such places of entertainment, tav- Indiana statute at issue in Barnes "is strikingly simil- erns, restaurants, clubs, theaters, dance halls, ar to the Ordinance we are examining," it concluded banquet halls, party rooms or halls limited to that "[u]nfortunately for our purposes, the Barnes specific members, restricted to adults or to Court splintered and produced four separate, non- patrons invited to attend, whether or not an harmonious opinions." 553 Pa., at 356, 719 A.2d, at admission charge is levied. 277. After canvassing these separate opinions, the "4. The prohibition set forth in subsection Pennsylvania court concluded that, although it is per- 1(c) shall not apply to: missible to find precedential effect in a fragmented "a. Any child under ten (10) years of age; or decision, to do so a majority of the Court must have "b. Any individual exposing a breast in the been in agreement on the concept that is deemed to process of breastfeeding an infant under two be the holding. See Marks v. United States, 430 U.S. (2) years of age." 188, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). The Pennsylvania court noted that "aside from the agree- The Court of Common Pleas of Erie County granted ment by a majority of the Barnes Court that nude the permanent injunction and struck down the ordin- dancing is entitled to some First Amendment protec- ance as unconstitutional. Civ. No. 60059-1994 (Jan. tion, we can find no point on which a majority of the 18, 1995), Pet. for Cert. 40a. On cross appeals, the Barnes Court agreed." 553 Pa., at 358, 719 A.2d, at Commonwealth Court reversed the trial court's or- 278. Accordingly, the court concluded that "no clear der. 674 A.2d 338 (1996). precedent arises out of Barnes on the issue of wheth- er the [Erie] ordinance ... passes muster under the The Pennsylvania Supreme Court granted review and First Amendment." Ibid. reversed, concluding that the public nudity provisions of the ordinance violated respondent's rights to free- Having determined that there was no United States dom of expression as protected by the First and Four- Supreme Court precedent on point, the Pennsylvania teenth Amendments. 553 Pa. 348, 719 A.2d 273 court *286 conducted an independent examination of (1998). The Pennsylvania court first inquired wheth- the ordinance to ascertain whether it was related to er nude dancing constitutes expressive conduct that is the suppression of expression. The court concluded within the protection of the First Amendment. The that although one of the purposes of the ordinance court noted that the act of being nude, in and of *285 was to combat negative secondary effects, itself, is not entitled to First Amendment protection "[i]nextricably bound up with this stated purpose is
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 8 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) an unmentioned purpose ... to impact negatively on 792 (1999). the erotic message of the dance." Id., at 359, 719 A.2d, at 279. As such, the court determined the or- II dinance was content based and subject to strict scru- [1] As a preliminary matter, we must address the jus- tiny. The ordinance failed the narrow tailoring re- ticiability question. " '[A] case is moot when the is- quirement of strict scrutiny because the court found sues presented are no longer "live" or the parties lack that imposing criminal and civil sanctions on those a legally cognizable interest in the outcome.' who commit sex crimes would be a far narrower " County of Los Angeles v. Davis, 440 U.S. 625, 631, means of combating secondary effects than the re- 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979) (quoting Pow- quirement that dancers wear pasties and ell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, G-strings. Id., at 361-362, 719 A.2d, at 280. 23 L.Ed.2d 491 (1969)). The underlying concern is that, when the challenged conduct ceases such that " Concluding that the ordinance unconstitutionally 'there is no reasonable expectation that the wrong will burdened respondent's expressive conduct, the be repeated,' " United States v. W.T. Grant Co., 345 Pennsylvania court then determined that, under U.S. 629, 633, 73 S.Ct. 894, 97 L.Ed. 1303 (1953), Pennsylvania law, the public nudity provisions of the then it becomes impossible for the court to grant " ordinance could be severed rather than striking the 'any effectual relief whatever' to [the] prevailing ordinance in its entirety. Accordingly, the court party," Church of Scientology of Cal. v. United severed §§ 1(c) and 2 from the ordinance and re- States, 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d versed the order of the Commonwealth Court. Id., at 313 (1992) (quoting Mills v. Green, 159 U.S. 651, 363-364, 719 A.2d, at 281. Because the court de- 653, 16 S.Ct. 132, 40 L.Ed. 293 (1895)). In that termined that the public nudity provisions of the or- case, any opinion as to the legality of the challenged dinance violated Pap's right to freedom of expression action would be advisory. under the United States Constitution, it did not ad- dress the constitutionality of the ordinance under the [2] Here, Pap's submitted an affidavit stating that it Pennsylvania Constitution or the claim that the ordin- had "ceased to operate a nude dancing establishment ance is unconstitutionally overbroad. Ibid. in Erie." Status Report Re Potential Issue of Moot- ness 1 (Sept. 8, 1999). Pap's asserts that the case is In a separate concurrence, two justices of the therefore moot because "[t]he outcome of this case Pennsylvania court noted that, because this Court up- will have no effect upon Respondent." Respondent's held a virtually identical statute in Barnes, the ordin- Motion to Dismiss as Moot 1. Simply closing Kandy- ance should have been upheld under the United land is not sufficient to render this case moot, States Constitution. 553 Pa., at 364, 719 A.2d, at however. Pap's is still incorporated under 281. They reached the same result as the majority, Pennsylvania law, and it could again decide to oper- however, because they would have held that the pub- ate a nude dancing establishment in Erie. See Peti- lic nudity sections of the ordinance violate the tioner's Brief in Opposition to Motion to Dismiss 3. Pennsylvania Constitution. Id., at 370, 719 A.2d, at Justice SCALIA differs with our assessment as to the 284. likelihood that Pap's may resume its nude dancing *288 operation. Several Members of this Court can *287 The city of Erie petitioned for a writ of certior- attest, however, that the "advanced age" of Pap's ari, which we granted. **1390526 U.S. 1111, 119 owner (72) does not make it "absolutely clear" that a S.Ct. 1753, 143 L.Ed.2d 786 (1999). Shortly there- life of quiet retirement is his only reasonable expecta- after, Pap's filed a motion to dismiss the case as tion. Cf. Friends of Earth, Inc. v. Laidlaw Environ- moot, noting that Kandyland was no longer operating mental Services (TOC), Inc., 528 U.S. 167, 120 S.Ct. as a nude dancing club, and Pap's was not operating a 693, 145 L.Ed.2d 610 (2000). Moreover, our ap- nude dancing club at any other location. Respond- praisal of Pap's affidavit is influenced by Pap's fail- ent's Motion to Dismiss as Moot 1. We denied the ure, despite its obligation to the Court, to mention a motion. 527 U.S. 1034, 119 S.Ct. 2391, 144 L.Ed.2d word about the potential mootness issue in its brief in
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 9 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) opposition to the petition for writ of certiorari, which [4] To determine what level of scrutiny applies to the was filed in April 1999, even though, as Justice ordinance at issue here, we must decide "whether the SCALIA points out, Kandyland was closed and that State's regulation is related to the suppression of ex- property sold in 1998. See Board of License pression." Texas v. Johnson, 491 U.S. 397, 403, 109 Comm'rs of Tiverton v. Pastore, 469 U.S. 238, 240, S.Ct. 2533, 105 L.Ed.2d 342 (1989); see also United 105 S.Ct. 685, 83 L.Ed.2d 618 (1985) (per curiam). States v. O'Brien, 391 U.S., at 377, 88 S.Ct. 1673. If Pap's only raised the issue after this Court granted the governmental purpose in enacting the regulation certiorari. is unrelated to the suppression of expression, then the regulation need only satisfy the "less stringent" stand- In any event, this is not a run of the mill voluntary ard from O'Brien for evaluating restrictions on sym- cessation case. Here it is the plaintiff who, having bolic speech. Texas v. Johnson, supra, at 403, 109 prevailed below, now seeks to have the case declared S.Ct. 2533; United States v. O'Brien, supra, at 377, moot. And it is the city of Erie that seeks to invoke 88 S.Ct. 1673. If the government interest is related the federal judicial power to obtain this Court's re- to the content of the expression, however, then the view of the Pennsylvania Supreme Court decision. regulation falls outside the scope of the O'Brien test Cf. ASARCO Inc. v. Kadish, 490 U.S. 605, 617-618, and must be justified under a more demanding stand- 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). The city ard. Texas v. Johnson, supra, at 403, 109 S.Ct. 2533. has an ongoing injury because it is barred from enfor- cing the public nudity provisions of its ordinance. If [5] In Barnes, we analyzed an almost identical stat- the challenged ordinance is found constitutional, then ute, holding that Indiana's public nudity ban did not Erie can enforce it, and the availability of such relief violate the First Amendment, although no five Mem- is sufficient to prevent the case from being moot. bers of the Court agreed on a single rationale for that See Church of Scientology of Cal. v. United States, conclusion. We now clarify that government restric- supra, at 13, 113 S.Ct. 447. And Pap's still has a tions on public nudity such as the ordinance at issue concrete stake in the outcome of this case because, to here should be evaluated under the framework set the extent Pap's has an interest in resuming opera- forth in O'Brien for content-neutral restrictions on tions, it has an interest in preserving the judgment of symbolic speech. the Pennsylvania Supreme Court. Our interest in preventing litigants from attempting **1391 to ma- The city of Erie argues that the ordinance is a con- nipulate the Court's jurisdiction to insulate a favor- tent-neutral restriction that is reviewable under able decision from review further counsels against a O'Brien because the ordinance bans conduct, not finding of mootness here. See United States v. W.T. speech; specifically, public *290 nudity. Respond- Grant Co., supra, at 632, 73 S.Ct. 894; cf. *289Ari- ent counters that the ordinance targets nude dancing zonans for Official English v. Arizona, 520 U.S. 43, and, as such, is aimed specifically at suppressing ex- 74, 117 S.Ct. 1055, 137 L.Ed.2d 170 (1997). Al- pression, making the ordinance a content-based re- though the issue is close, we conclude that the case is striction that must be subjected to strict scrutiny. not moot, and we turn to the merits. [6] The ordinance here, like the statute in Barnes, is III on its face a general prohibition on public nudity. 553 [3] Being "in a state of nudity" is not an inherently Pa., at 354, 719 A.2d, at 277. By its terms, the ordin- expressive condition. As we explained in Barnes, ance regulates conduct alone. It does not target nud- however, nude dancing of the type at issue here is ex- ity that contains an erotic message; rather, it bans all pressive conduct, although we think that it falls only public nudity, regardless of whether that nudity is ac- within the outer ambit of the First Amendment's pro- companied by expressive activity. And like the stat- tection. See Barnes v. Glen Theatre, Inc., 501 U.S., ute in Barnes, the Erie ordinance replaces and up- at 565-566, 111 S.Ct. 2456 (plurality opinion); Schad dates provisions of an "Indecency and Immorality" v. Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, ordinance that has been on the books since 1866, 68 L.Ed.2d 671 (1981). predating the prevalence of nude dancing establish-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 10 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) ments such as Kandyland. Pet. for Cert. 7a; see ondary effects caused by the presence of adult enter- Barnes v. Glen Theatre, Inc., supra, at 568, 111 S.Ct. tainment establishments like Kandyland and not at 2456. suppressing the erotic message conveyed by this type of nude dancing. Put another way, the ordinance Respondent and Justice STEVENS contend nonethe- does not attempt to regulate the primary effects of the less that the ordinance is related to the suppression of expression, i.e., the effect on the audience of watch- expression because language in the ordinance's pre- ing nude erotic dancing, but rather the secondary ef- amble suggests that its actual purpose is to prohibit fects, such as the impacts on public health, safety, erotic dancing of the type performed at Kandyland. and welfare, which we have previously recognized Post, at 1406 (dissenting opinion). That is not how are "caused by the presence of even one such" estab- the Pennsylvania Supreme Court interpreted that lan- lishment. Renton v. Playtime Theatres, Inc., 475 U.S. guage, however. In the preamble to the ordinance, 41, 47-48, 50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); the city council stated that it was adopting the regula- see also Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. tion 1157, 99 L.Ed.2d 333 (1988). " 'for the purpose of limiting a recent increase in nude live entertainment within the City, which Although the Pennsylvania Supreme Court acknow- activity adversely **1392 impacts and threatens to ledged that one goal of the ordinance was to combat impact on the public health, safety and welfare by the negative secondary effects associated with nude providing an atmosphere conducive to violence, dancing establishments, the court concluded that the sexual harassment, public intoxication, prostitution, ordinance was nevertheless content based, relying on the spread of sexually transmitted diseases and oth- Justice White's position in dissent in Barnes for the er deleterious effects.' " 553 Pa., at 359, 719 A.2d, proposition that a ban of this type necessarily has the at 279. purpose of suppressing the erotic message *292 of The Pennsylvania Supreme Court construed this lan- the dance. Because the Pennsylvania court agreed guage to mean that one purpose of the ordinance was with Justice White's approach, it concluded that the "to combat negative secondary effects." Ibid. ordinance must have another, "unmentioned" purpose related to the suppression of expression. 553 Pa., at *291 As Justice SOUTER noted in Barnes, "on its 359, 719 A.2d, at 279. That is, the Pennsylvania face, the governmental interest in combating prostitu- court adopted the dissent's view in Barnes that " tion and other criminal activity is not at all inherently '[s]ince the State permits the dancers to perform if related to expression." 501 U.S., at 585, 111 S.Ct. they wear pasties and G--strings but forbids nude 2456 (opinion concurring in judgment). In that dancing, it is precisely because of the distinctive, ex- sense, this case is similar to O'Brien. O'Brien pressive content of the nude dancing performances at burned his draft registration card as a public state- issue in this case that the State seeks to apply the stat- ment of his antiwar views, and he was convicted un- utory prohibition.' " 553 Pa., at 359, 719 A.2d, at 279 der a statute making it a crime to knowingly mutilate (quoting Barnes, supra, at 592, 111 S.Ct. 2456 or destroy such a card. This Court rejected his claim (White, J., dissenting)). A majority of the Court re- that the statute violated his First Amendment rights, jected that view in Barnes, and we do so again here. reasoning that the law punished him for the "noncom- municative impact of his conduct, and for nothing [7] Respondent's argument that the ordinance is else." 391 U.S., at 382, 88 S.Ct. 1673. In other "aimed" at suppressing expression through a ban on words, the Government regulation prohibiting the de- nude dancing--an argument that respondent supports struction of draft cards was aimed at maintaining the by pointing to statements by the city attorney that the integrity of the Selective Service System and not at public nudity ban was not intended to apply to "legit- suppressing the message of draft resistance that imate" theater productions--is really an argument that O'Brien sought to convey by burning his draft card. the city council also had an illicit motive in enacting So too here, the ordinance prohibiting public nudity the ordinance. As we have said before, however, is aimed at combating crime and other negative sec- this Court will not strike down an otherwise constitu-
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 11 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) tional statute on the basis of an alleged illicit See Renton, supra, at 50-51, 106 S.Ct. 925. In Clark motive. O'Brien, supra, at 382-383, 88 S.Ct. 1673; v. Community for Creative Non-Violence, 468 U.S. **1393 Renton v. Playtime Theatres, Inc., supra, at 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), we held 47-48, 106 S.Ct. 925 (that the "predominate" purpose that a National Park Service regulation prohibiting of the statute was to control secondary effects was camping in certain parks did not violate the First "more than adequate to establish" that the city's in- Amendment when applied to prohibit demonstrators terest was unrelated to the suppression of expres- from sleeping in Lafayette Park and the Mall in sion). In light of the Pennsylvania court's determina- Washington, D.C., in connection with a demonstra- tion that one purpose of the ordinance is to combat tion intended to call attention to the plight of the harmful secondary effects, the ban on public nudity homeless. Assuming, arguendo, that sleeping can be here is no different from the ban on burning draft re- expressive conduct, the Court concluded that the gistration cards in O'Brien, where the Government Government interest in conserving park property was sought to prevent the means of the expression and not unrelated to the demonstrators' message about home- the expression of antiwar sentiment itself. lessness. Id., at 299, 104 S.Ct. 3065. *294 So, while the demonstrators were allowed to erect "symbolic Justice STEVENS argues that the ordinance enacts a tent cities," they were not allowed to sleep overnight complete ban on expression. We respectfully dis- in those tents. Even though the regulation may have agree with that characterization. The public nudity directly limited the expressive element involved in ban certainly has *293 the effect of limiting one par- actually sleeping in the park, the regulation was non- ticular means of expressing the kind of erotic mes- etheless content neutral. sage being disseminated at Kandyland. But simply to define what is being banned as the "message" is to Similarly, even if Erie's public nudity ban has some assume the conclusion. We did not analyze the regu- minimal effect on the erotic message by muting that lation in O'Brien as having enacted a total ban on ex- portion of the expression that occurs when the last pression. Instead, the Court recognized that the reg- stitch is dropped, the dancers at Kandyland and other ulation against destroying one's draft card was justi- such establishments are free to perform wearing pas- fied by the Government's interest in preventing the ties and G-strings. Any effect on the overall expres- harmful "secondary effects" of that conduct sion is de minimis. And as Justice STEVENS elo- (disruption to the Selective Service System), even quently stated for the plurality in Young v. American though that regulation may have some incidental ef- Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, fect on the expressive element of the conduct. Be- 49 L.Ed.2d 310 (1976), "even though we recognize cause this justification was unrelated to the suppres- that the First Amendment will not tolerate the total sion of O'Brien's antiwar message, the regulation was suppression of erotic materials that have some argu- content neutral. Although there may be cases in ably artistic value, it is manifest that society's interest which banning the means of expression so interferes in protecting this type of expression is of a wholly with the message that it essentially bans the message, different, and lesser, magnitude than the **1394 in- that is not the case here. terest in untrammeled political debate," and "few of us would march our sons and daughters off to war to Even if we had not already rejected the view that a preserve the citizen's right to see" specified anatomic- ban on public nudity is necessarily related to the sup- al areas exhibited at establishments like Kandyland. pression of the erotic message of nude dancing, we If States are to be able to regulate secondary effects, would do so now because the premise of such a view then de minimis intrusions on expression such as is flawed. The State's interest in preventing harmful those at issue here cannot be sufficient to render the secondary effects is not related to the suppression of ordinance content based. See Clark v. Community expression. In trying to control the secondary effects for Creative Non--Violence, supra, at 299, 104 S.Ct. of nude dancing, the ordinance seeks to deter crime 3065; Ward v. Rock Against Racism, 491 U.S. 781, and the other deleterious effects caused by the pres- 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (even if ence of such an establishment in the neighborhood.
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 12 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) regulation has an incidental effect on some speakers movie theaters differently from other theaters, and or messages but not others, the regulation is content defined "adult" theaters solely by reference to the neutral if it can be justified without reference to the content of their movies. 475 U.S., at 44, 106 S.Ct. content of the expression). 925. We nonetheless treated the zoning regulation as content neutral because the ordinance was aimed at This case is, in fact, similar to O'Brien, Community the secondary effects of adult theaters, a justification for Creative Non-- Violence, and Ward. The justifica- unrelated to the content of the adult movies them- tion for the government regulation in each case pre- selves. *296Id., at 48, 106 S.Ct. 925. Here, Erie's or- vents harmful "secondary" effects that are unrelated dinance is on its face a content-neutral restriction on to the suppression of expression. See, e.g., Ward v. conduct. Even if the city thought that nude dancing Rock Against Racism, supra, at 791-792, 109 S.Ct. at clubs like Kandyland constituted a particularly 2746 (noting that "[t]he principal justification for the problematic instance of public nudity, the regulation *295 sound-amplification guideline is the city's de- is still properly evaluated as a content-neutral restric- sire to control noise levels at bandshell events, in or- tion because the interest in combating the secondary der to retain the character of the [adjacent] Sheep effects associated with those clubs is unrelated to the Meadow and its more sedate activities," and citing suppression of the erotic message conveyed by nude Renton for the proposition that "[a] regulation that dancing. serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect We conclude that Erie's asserted interest in combat- on some speakers or messages but not others"). ing the negative secondary effects associated with While the doctrinal theories behind "incidental bur- adult entertainment establishments like Kandyland is dens" and "secondary effects" are, of course, not unrelated to the suppression of the erotic message identical, there is nothing objectionable about a city conveyed by nude dancing. The ordinance prohibit- passing a general ordinance to ban public nudity ing public nudity is therefore valid **1395 if it satis- (even though such a ban may place incidental bur- fies the four-factor test from O'Brien for evaluating dens on some protected speech) and at the same time restrictions on symbolic speech. recognizing that one specific occurrence of public nudity--nude erotic dancing--is particularly problem- IV atic because it produces harmful secondary effects. [8][9][10][11] Applying that standard here, we con- clude that Erie's ordinance is justified under Justice STEVENS claims that today we "[f]or the O'Brien. The first factor of the O'Brien test is first time" extend Renton's secondary effects doctrine whether the government regulation is within the con- to justify restrictions other than the location of a com- stitutional power of the government to enact. Here, mercial enterprise. Post, at 1406 (dissenting opin- Erie's efforts to protect public health and safety are ion). Our reliance on Renton to justify other restric- clearly within the city's police powers. The second tions is not new, however. In Ward, the Court relied factor is whether the regulation furthers an important on Renton to evaluate restrictions on sound amplific- or substantial government interest. The asserted in- ation at an outdoor bandshell, rejecting the dissent's terests of regulating conduct through a public nudity contention that Renton was inapplicable. See Ward ban and of combating the harmful secondary effects v. Rock Against Racism, supra, at 804, n. 1, 109 S.Ct. associated with nude dancing are undeniably import- 2746 (Marshall, J., dissenting) ("Today, for the first ant. And in terms of demonstrating that such sec- time, a majority of the Court applies Renton analysis ondary effects pose a threat, the city need not "con- to a category of speech far afield from that decision's duct new studies or produce evidence independent of original limited focus"). Moreover, Erie's ordinance that already generated by other cities" to demonstrate does not effect a "total ban" on protected expres- the problem of secondary effects, "so long as sion. Post, at 1407. whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city In Renton, the regulation explicitly treated "adult" addresses." Renton v. Playtime Theatres, Inc., supra,
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 13 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) at 51-52, 106 S.Ct. 925. Because the nude dancing judgments about the resulting harmful secondary ef- at Kandyland is of the same character as the adult en- fects. Analogizing to the administrative agency con- tertainment *297 at issue in Renton, Young v. Amer- text, it is well established that, as long as a party has ican Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, an opportunity to respond, an administrative agency 49 L.Ed.2d 310 (1976), and California v. LaRue, 409 may take official notice of such "legislative facts" U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), it was within its special knowledge, and is not confined to reasonable for Erie to conclude that such nude dan- the evidence in the record in reaching its expert judg- cing was likely to produce the same secondary ef- ment. See FCC v. National Citizens Comm. for fects. And Erie could reasonably rely on the eviden- Broadcasting, 436 U.S. 775, 98 S.Ct. 2096, 56 tiary foundation set forth in Renton and American L.Ed.2d 697 (1978); **1396Republic Aviation Corp. Mini Theatres to the effect that secondary effects are v. NLRB, 324 U.S. 793, 65 S.Ct. 982, 89 L.Ed. 1372 caused by the presence of even one adult entertain- (1945); 2 K. Davis & R. Pierce, Administrative Law ment establishment in a given neighborhood. See Treatise § 10.6 (3d ed.1994). Here, Kandyland has Renton v. Playtime Theatres, Inc., supra, at 51-52, had ample opportunity to contest the council's find- 106 S.Ct. 925 (indicating that reliance on a judicial ings about secondary effects--before the council it- opinion that describes the evidentiary basis is suffi- self, throughout the state proceedings, and before this cient). In fact, Erie expressly relied on Barnes and Court. Yet to this day, Kandyland has never chal- its discussion of secondary effects, including its ref- lenged the city council's findings or cast any specific erence to Renton and American Mini Theatres. Even doubt on the validity of those findings. Instead, it in cases addressing regulations that strike closer to has simply asserted that the council's evidentiary the core of First Amendment values, we have accep- proof was lacking. In the absence of any reason to ted a state or local government's reasonable belief doubt it, the city's expert judgment should be cred- that the experience of other jurisdictions is relevant to ited. And the study relied on by amicus curiae does the problem it is addressing. See Nixon v. Shrink not cast any legitimate doubt on the Erie city coun- Missouri Government PAC, 528 U.S. 377, 393, n. 6, cil's judgment about Erie. See Brief for First Amend- 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) Regardless of ment Lawyers Association as Amicus Curiae 16-23. whether Justice SOUTER now wishes to disavow his opinion in Barnes on this point, see post, at 1406 Finally, it is worth repeating that Erie's ordinance is (opinion concurring in part and dissenting in part), on its face a content-neutral restriction that regulates the evidentiary standard described in Renton controls conduct, not First Amendment expression. And the here, and Erie meets that standard. government should have sufficient leeway to justify such a law based on secondary effects. On this [12] In any event, Erie also relied on its own find- point, O'Brien is especially instructive. The Court ings. The preamble to the ordinance states that "the there did not require evidence that the integrity of the Council of the City of Erie has, at various times over Selective Service System would be jeopardized by more than a century, expressed its findings that cer- the knowing destruction or mutilation of draft cards. tain lewd, immoral activities carried on in public It simply reviewed the Government's various admin- places for profit are highly detrimental to the public istrative interests in issuing the cards, and then con- health, safety and welfare, and lead to the debase- cluded that "Congress has a legitimate and substantial ment of both women and men, promote violence, interest in preventing their wanton and unrestrained public intoxication, prostitution and other serious destruction and assuring their continuing availability criminal activity." Pet. for Cert. 6a (emphasis ad- by punishing people *299 who knowingly and will- ded). The city council members, familiar with com- fully destroy or mutilate them." 391 U.S., at 378-380, mercial downtown Erie, are the individuals who 88 S.Ct. 1673. There was no study documenting in- would likely have had firsthand knowledge of what stances of draft card mutilation or the actual effect of took place at and around nude dancing establishments such mutilation on the Government's asserted effi- *298 in Erie, and can make particularized, expert ciency interests. But the Court permitted Congress
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 14 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) to take official notice, as it were, that draft card de- furthers that interest. As to the government interest, struction would jeopardize the system. The fact that i.e., whether the threatened harm is real, the city this sort of leeway is appropriate in a case involving council relied on this Court's opinions detailing the conduct says nothing whatsoever about its appropri- harmful secondary effects caused by establishments ateness in a case involving actual regulation of First like Kandyland, as well as on its own experiences in Amendment expression. As we have said, so long as Erie. Justice SOUTER attempts to denigrate the city the regulation is unrelated to the suppression of ex- council's conclusion that the threatened harm was pression, "[t]he government generally has a freer real, arguing that we cannot accept Erie's findings be- hand in restricting expressive conduct than it has in cause the subject of nude dancing is "fraught with restricting the written or spoken word." Texas v. some emotionalism," post, at 1404. Yet surely the Johnson, 491 U.S., at 406, 109 S.Ct. 2533. See, e.g., subject of drafting our citizens into the military is United States v. O'Brien, supra, at 377, 88 S.Ct. "fraught" with more emotionalism than the subject of 1673; United States v. Albertini, 472 U.S. 675, 689, regulating nude dancing. Ibid. Justice SOUTER next 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985) (finding suffi- hypothesizes that the reason we cannot accept Erie's cient the Government's assertion that those who had conclusion is that, since the question whether these previously been barred from entering the military in- secondary effects occur is "amenable to empirical stallation pose a threat to the security of that installa- treatment," we should ignore Erie's actual experience tion); Clark v. Community for Creative Non- and instead require such an empirical analysis. Post, -Violence, 468 U.S., at 299, 104 S.Ct. 3065 (finding at 1404, n. 3 (referring to a "scientifically sound" sufficient the Government's assertion that camping study offered by an amicus curiae to show that nude overnight in the park poses a threat to park property). dancing establishments do not cause secondary ef- fects). In Nixon, however, we flatly rejected that Justice SOUTER, however, would require Erie to de- idea. 528 U.S., at 394, 120 S.Ct. 897 (noting that the velop a specific evidentiary record supporting its or- "invocation of academic studies said to indicate" that dinance. Post, at 1405-1406 (opinion concurring in the threatened harms are not real is insufficient to part and dissenting in part). Justice SOUTER agrees cast doubt on the experience of the local govern- that Erie's interest in combating the negative second- ment). ary effects associated with nude dancing establish- ments is a legitimate government interest unrelated to As to the second point--whether the regulation fur- the suppression of expression, and he agrees that the thers the government interest--it is evident that, since ordinance should therefore be evaluated under crime and other public health and safety problems are O'Brien. O'Brien, of course, required no evidentiary caused by the presence of nude dancing establish- showing at all that the threatened harm was real. But ments like Kandyland, a *301 ban on such nude dan- that case is different, Justice SOUTER contends, be- cing would further Erie's interest in preventing such cause in O'Brien "there could be no doubt" that a reg- secondary effects. To be sure, requiring dancers to ulation prohibiting the destruction of draft cards wear pasties and G-strings may not greatly reduce would alleviate the harmful secondary effects *300 these secondary effects, but O'Brien requires only flowing from the destruction of those cards. Post, at that the regulation further the interest in combating 1402-1403, n. 1. such effects. Even though the dissent questions the wisdom of Erie's chosen remedy, post, at 1409 But whether the harm is evident to our "intuition," (opinion of STEVENS, J.), the " 'city must be al- ibid., is not the proper inquiry. If it were, we would lowed a reasonable opportunity to experiment with simply say there is no doubt that a regulation prohib- solutions to admittedly serious problems,' " Renton v. iting public nudity would alleviate the harmful sec- Playtime Theatres, Inc., 475 U.S., at 52, 106 S.Ct. ondary effects associated with nude dancing. In any 925 (quoting American Mini Theatres, 427 U.S., at event, Justice SOUTER conflates **1397 two distinct 71, 96 S.Ct. 2440 (plurality opinion)). It also may be concepts under O'Brien: whether there is a substan- true that a pasties and G-string requirement would tial government interest and whether the regulation
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 15 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) not be as effective as, for example, a requirement that ing, redressable harm consisting of the state court's the dancers be fully clothed, but the city must balance invalidation of their public nudity ordinance. its efforts to address the problem with the require- ment that the restriction be no greater than necessary As to the first point: Petitioners do not dispute that to further the city's interest. Kandyland no longer exists; the building in which it was located has been sold to a real estate developer, The ordinance also satisfies O'Brien's third factor, and the premises are currently being used as a com- that the government interest is unrelated to the sup- edy club. We have a sworn affidavit from respond- pression of free expression, as discussed supra, at ent's sole shareholder, Nick Panos, to the effect that 1390-1395. The fourth and final O'Brien factor--that Pap's "operates no active business," and is "a 'shell' the restriction is no greater than is essential to the fur- corporation." More to the point, Panos swears that therance of the government interest--is satisfied as neither Pap's nor Panos "employ[s] any individuals well. The ordinance regulates conduct, and any in- involved in the nude dancing business," "maintain[s] cidental impact on the expressive element of nude any contacts in the adult entertainment business," dancing is de minimis. The requirement that dancers "has any current interest in any establishment provid- wear pasties and G-strings is a minimal restriction in ing nude dancing," or "has any intention to own or furtherance of the asserted government interests, and operate a nude dancing establishment in the future." the restriction leaves ample capacity to convey the [FN1] App. to Reply to Brief in Opposition to Mo- dancer's erotic message. See Barnes v. Glen tion to Dismiss 7-8. Theatre, Inc., 501 U.S., at 572, 111 S.Ct. 2456 (plurality opinion of REHNQUIST, C. J., joined by FN1. Curiously, the Court makes no men- O'CONNOR and KENNEDY, JJ.); id., at 587, 111 tion of Panos' averment of no intention to S.Ct. 2456 (SOUTER, J., concurring in judgment). operate a nude dancing establishment in the Justice SOUTER points out that zoning is an alternat- future, but discusses the issue as though the ive means of addressing this problem. It is far from only factor suggesting mootness is the clos- clear, however, that zoning imposes less of a burden ing of Kandyland. Ante, at 1390. I see no on expression than the minimal requirement imple- basis for ignoring this averment. The only mented here. In any event, since this is a content- fact mentioned by the Court to justify re- neutral restriction, least restrictive *302 means ana- garding it as perjurious is that respondent lysis is not required. See Ward, 491 U.S., at failed to raise mootness in its brief in oppos- 798-799, n. 6, 109 S.Ct. 2746. ition to the petition for certiorari. That may be good basis for censure, but it is scant **1398 We hold, therefore, that Erie's ordinance is a basis for suspicion of perjury--particularly content-neutral regulation that is valid under since respondent, far from seeking to "insu- O'Brien. Accordingly, the judgment of the late a favorable decision from review," ante, Pennsylvania Supreme Court is reversed, and the at 1391, asks us in light of the mootness to case is remanded for further proceedings. vacate the judgment below. Reply to Brief in Opposition to Motion to Dismiss 5. It is so ordered. *303 Petitioners do not contest these representations, Justice SCALIA, with whom Justice THOMAS joins, but offer in response only that Pap's could very easily concurring in the judgment. get back into the nude dancing business. The Court adopts petitioners' line, concluding that because re- I spondent is still incorporated in Pennsylvania, it In my view, the case before us here is moot. The "could again decide to operate a nude dancing estab- Court concludes that it is not because respondent lishment in Erie." Ante, at 1390. That plainly does not could resume its nude dancing operations in the fu- suffice under our cases. The test for mootness we ture, and because petitioners have suffered an ongo- have applied in voluntary-termination cases is not
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 16 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) whether the action originally giving rise to the con- go judge on a different court, of no greater troversy could not conceivably reoccur, but whether stature, and located in Erie, Pennsylvania, it is "absolutely clear that the ... behavior could not rather than Palm Springs. I base my assess- reasonably be expected to recur." United States v. ment of reasonable expectations not upon Concentrated Phosphate Export Assn., Inc., 393 U.S. Mr. Panos' age alone, but upon that com- 199, 203, 89 S.Ct. 361, 21 L.Ed.2d 344 (1968) bined with his sale of the business and his (emphasis added). Here I think that test is met. Ac- assertion, under oath, that he does not intend cording to Panos' uncontested sworn affidavit, Pap's to enter another. ceased doing business at Kandyland, and the premises were sold to an independent developer, in FN3. It is significant that none of the asser- 1998--the year before the petition for certiorari in this tions of Panos' affidavit is contested. Those case was filed. It strains credulity to suppose that pertaining to the sale of Kandyland and the the 72-year-old Mr. Panos shut down his going busi- current noninvolvement of Pap's in any oth- ness after securing his victory in the Pennsylvania er nude dancing establishment would seem Supreme Court, and before the city's petition for cer- readily verifiable by petitioners. The state- tiorari was even filed, in order to increase his chances ments regarding Pap's and Panos' intentions of preserving his judgment in the statistically unlikely for the future are by their nature not verifi- event that a (not yet filed) petition might be granted. able, and it would be reasonable not to credit Given the timing of these events, given the fact that them if either petitioners asserted some reas- respondent has no existing interest in nude dancing on to believe they were not true or they were (or in any other business), given Panos' sworn repres- not rendered highly plausible by Panos' age entation that he does not intend to invest--**1399 and his past actions. Neither condition ex- through Pap's or otherwise--in any nude dancing ists here. business, and given Panos' advanced *304 age, [FN2] The situation here is indistinguishable from that it seems to me that there is "no reasonable expecta- which obtained in Arizonans for Official English v. tion," even if there remains a theoretical possibility, Arizona, 520 U.S. 43, 117 S.Ct. 1055, 137 L.Ed.2d that Pap's will resume nude dancing operations in the 170 (1997), where the plaintiff-respondent, a state future. [FN3] employee who had sued to enjoin enforcement of an FN2. The Court asserts that "[s]everal Mem- amendment to the Arizona Constitution making Eng- bers of this Court can attest ... that the 'ad- lish that State's official language, had resigned her vanced age' " of 72 "does not make it 'abso- public-sector employment. We held the case moot lutely clear' that a life of quiet retirement is and, since the mootness was attributable to the " 'uni- [one's] only reasonable expectation." Ante, lateral action of the party who prevailed in the lower at 1390. That is tres gallant, but it misses court,' " we followed our usual practice of vacating the point. Now as heretofore, Justices in the favorable judgment respondent had obtained in their seventies continue to do their work the *305 Court of Appeals. Id., at 72, 117 S.Ct. 1055 competently--indeed, perhaps better than (quoting U.S. Bancorp Mortgage Co. v. Bonner Mall their youthful colleagues because of the wis- Partnership, 513 U.S. 18, 23, 115 S.Ct. 386, 130 dom that age imparts. But to respond to my L.Ed.2d 233 (1994)). point, what the Court requires is citation of The rub here is that this case comes to us on writ of an instance in which a Member of this Court certiorari to a state court, so that our lack of jurisdic- (or of any other court, for that matter) tion over the case also entails, according to our recent resigned at the age of 72 to begin a new ca- jurisprudence, a lack of jurisdiction to direct a va- reer--or more remarkable still (for this is catur. See ASARCO Inc. v. Kadish, 490 U.S. 605, what the Court suspects the young Mr. 621, n. 1, 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989). Panos is up to) resigned at the age of 72 to The consequences of that limitation on our power are
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 17 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) in this case significant: A dismissal for mootness hear the case and reverse the judgment below is itself caused by respondent's unilateral action would leave "sufficient to prevent the case from being moot." petitioners subject to an ongoing legal disability, and Ante, at 1390. Although the Court does not cite any a large one at that. Because the Pennsylvania Su- authority for the proposition that the burden of an ad- preme Court severed the public nudity provision from verse decision below suffices to keep a case alive, it the ordinance, thus rendering it inoperative, the city is evidently relying upon our decision in ASARCO, would be prevented from enforcing its public nudity which held that Article III's standing requirements prohibition not only against respondent, should it de- were satisfied on writ of certiorari to a state court cide to resume operations in the future, and not only even though there would have been no Article III against other nude dancing establishments, but standing for the action producing the state judgment against anyone who appears nude in public, regard- on which certiorari was sought. We assumed juris- less of the "expressiveness" of his conduct or his pur- diction in the case because we concluded that the pose in engaging in it. party seeking to invoke the federal judicial power had standing to challenge the adverse judgment entered That is an unfortunate consequence (which could be against them by the state court. Because that judg- avoided, of course, if the Pennsylvania Supreme ment, if left undisturbed, would "caus[e] direct, spe- Court chose to vacate its judgments in cases that be- cific, and concrete injury to the parties who petition come moot during appeal). But it is not a con- for our review," ASARCO, 490 U.S., at 623-624, 109 sequence that authorizes us to entertain a suit the S.Ct. 2037, and because a decision by this Court to Constitution places beyond our power. And leaving reverse the State Supreme Court would clearly re- in effect erroneous state determinations regarding the dress that injury, we concluded that the original Federal Constitution is, after all, not unusual. It plaintiffs' lack of standing was not fatal to our juris- would have occurred here, even without the interven- diction, id., at 624, 109 S.Ct. 2037. ing mootness, if we had denied certiorari. And until the 1914 revision of the Judicial Code, it occurred I dissented on this point in ASARCO, see id., at 634, whenever a state court erroneously sustained a federal 109 S.Ct. 2037 (REHNQUIST, C. J., concurring in constitutional challenge, since we did not even have part and dissenting in part, joined by SCALIA, J.), statutory jurisdiction to entertain **1400 an appeal. and remain of the view that it was incorrectly de- Compare Judiciary Act of 1789, ch. 20, § 25, 1 Stat. cided. But ASARCO at least did not purport to hold 85-87, with Act of Dec. 23, 1914, ch. 2, 38 Stat. that the constitutional standing requirements of in- 790. In any event, the short of the matter is that we jury, causation, and redressability may be satisfied have no power to suspend the fundamental precepts solely by *307 reference to the lower court's adverse that federal courts "are limited by the case- judgment. It was careful to note--however illogical or-controversy requirement *306 of Art. III to adju- that might have been, see id., at 635, 109 S.Ct. 2037- dication of actual disputes between adverse parties," -that the parties "remain[ed] adverse," and that juris- Richardson v. Ramirez, 418 U.S. 24, 36, 94 S.Ct. diction was proper only so long as the "requisites of a 2655, 41 L.Ed.2d 551 (1974), and that this limitation case or controversy are also met," id., at 619, 624, applies "at all stages of review," Preiser v. Newkirk, 109 S.Ct. 2037. Today the Court would appear to 422 U.S. 395, 401, 95 S.Ct. 2330, 45 L.Ed.2d 272 drop even this fig leaf. [FN4] In concluding that the (1975) (quoting Steffel v. Thompson, 415 U.S. 452, injury to Erie is "sufficient" to keep this case alive, 459, n. 10, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974)) the Court performs the neat trick of identifying a (internal quotation marks omitted). "case or controversy" that has only one interested party. Which brings me to the Court's second reason for holding that this case is still alive: The Court con- FN4. I say "appear" because although the cludes that because petitioners have an "ongoing in- Court states categorically that "the availabil- jury" caused by the state court's invalidation of its ity of ... relief [from the judgment below] is duly enacted public nudity provision, our ability to sufficient to prevent the case from being
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moot," it follows this statement, in the next really find objectionable is expression rather than sentence, with the assertion that Pap's, the public nakedness. As far as appears (and as seems state-court plaintiff, retains a "concrete stake overwhelmingly likely), the preamble, the council- in the outcome of this case." Ante, at 1390. members' comments, and the chosen definition of the Of course, if the latter were true a classic prohibited conduct simply reflect the fact that Erie case or controversy existed, and resort to the had recently been having a public nudity problem not exotic theory of "standing by virtue of ad- with streakers, sunbathers or hot dog vendors, see verse judgment below" was entirely unne- Barnes, supra, at 574, 111 S.Ct. 2456 (SCALIA, J., cessary. concurring in judgment), but with lap dancers.
II There is no basis for the contention that the ordinance For the reasons set forth above, I would dismiss this does not apply to nudity in theatrical productions case for want of jurisdiction. Because the Court re- such as Equus or Hair. Its text contains no such limit- solves the threshold mootness question differently ation. It was stipulated in the trial court that no ef- and proceeds to address the merits, I will do so fort was made to enforce the ordinance against a pro- briefly as well. I agree that the decision of the duction of Equus involving nudity that was being Pennsylvania Supreme Court must be reversed, but staged in Erie at the time the ordinance became ef- disagree with the mode of analysis the Court has ap- fective. App. 84. Notwithstanding Justice plied. STEVENS' assertion to the contrary, however, see post, at 1411-1412, neither in the stipulation, nor The city of Erie self-consciously modeled its ordin- elsewhere in the record, does it appear that the city ance on the public nudity **1401 statute we upheld was aware of the nudity--and before this Court coun- against constitutional challenge in Barnes v. Glen sel for the city attributed nonenforcement not to a Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 general exception for theatrical productions, but to L.Ed.2d 504 (1991), calculating (one would have the fact that no one had complained. Tr. of Oral supposed reasonably) that the courts of Pennsylvania Arg. 16. One instance of nonenforcement--against a would consider themselves bound by our judgment play already in production that prosecutorial discre- on a question of federal constitutional law. In tion might reasonably have *309 "grand- Barnes, I voted to uphold the challenged Indiana stat- fathered"--does not render this ordinance discriminat- ute "not because it survives some lower level of First ory on its face. To be sure, in the trial court counsel Amendment scrutiny, but because, as a general law for the city said that "[t]o the extent that the express- regulating conduct and not specifically directed at ex- ive activity that is contained in [such] productions pression, it is not *308 subject to First Amendment rises to a higher level of protected expression, they scrutiny at all." Id., at 572, 111 S.Ct. 2456 (opinion would not be [covered]," App. 53-- but he rested this concurring in judgment). Erie's ordinance, too, by its assertion upon the provision in the preamble that ex- terms prohibits not merely nude dancing, but the act- pressed respect for "fundamental Constitutional guar- -irrespective of whether it is engaged in for express- antees of free speech and free expression," and the ive purposes--of going nude in public. The facts that provision of Paragraph 6 of the ordinance that a preamble to the ordinance explains that its purpose, provided for severability of unconstitutional provi- in part, is to "limi[t] a recent increase in nude live en- sions, id., at 53-54. [FN5] What he was saying there tertainment," App. to Pet. for Cert. 42a, that city (in order to fend off the overbreadth challenge of re- councilmembers in supporting the ordinance com- spondent, who was in no doubt that the ordinance did mented to that effect, see post, at 1412-1413, and n. cover theatrical productions, see id., at 55) was essen- 16 (STEVENS, J., dissenting), and that the ordinance tially what he said at oral argument before this includes in the definition of nudity the exposure of Court: that the ordinance would not be enforceable devices simulating that condition, see post, at 1413, against theatrical productions if the Constitution for- neither make the law any less general in its reach nor bade it. **1402 Tr. of Oral Arg. 13. Surely that demonstrate that what the municipal authorities
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 19 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) limitation does not cause the ordinance to be not gen- hibits conduct precisely because of its communicat- erally applicable, in the relevant sense of being tar- ive attributes." Barnes, 501 U.S., at 577, 111 S.Ct. geted against expressive conduct. [FN6] 2456 (emphasis deleted). Here, even if one hypothes- izes that the city's object was to suppress only nude FN5. This followup explanation rendered dancing, that would not establish an intent to sup- what Justice STEVENS calls counsel's "cat- press what (if anything) nude dancing communic- egorical" assertion that such productions ates. I do not feel the need, as the Court does, to would be exempt, see post, at 1411, n. 12, identify some "secondary effects" associated with notably un categorical. Rather than accept nude dancing that the city could properly seek to counsel's explanation--in the trial court and eliminate. (I am highly skeptical, to tell the truth, here--that is compatible with the text of the that the addition of pasties and G-strings will at all ordinance, Justice STEVENS rushes to as- reduce the tendency of establishments such as sign the ordinance a meaning that its words Kandyland to attract crime and prostitution, and cannot bear, on the basis of counsel's initial hence to foster sexually transmitted disease.) The footfault. That is not what constitutional traditional power of government to foster good mor- adjudication ought to be. als (bonos mores ), and the acceptability of the tradi- tional judgment (if Erie wishes to endorse it) that FN6. To correct Justice STEVENS' charac- nude public dancing itself is immoral, have not been terization of my present point: I do not ar- repealed by the First Amendment. gue that Erie "carved out an exception" for Equus and Hair. Post, at 1412, n. 14. Justice SOUTER, concurring in part and dissenting in Rather, it is my contention that the city at- part. torney assured the trial court that the ordin- ance was susceptible of an interpretation that I join Parts I and II of the Court's opinion and agree would carve out such exceptions to the ex- with the analytical approach that the plurality em- tent the Constitution required them. Con- ploys in deciding this case. Erie's stated interest in trary to Justice STEVENS' view, ibid., I do combating the secondary effects associated with nude not believe that a law directed against all dancing establishments is an interest unrelated to the public nudity ceases to be a "general law" suppression of expression under United States v. (rather than one directed at expression) if it O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d makes exceptions for nudity protected by 672 (1968), and the city's regulation is thus properly decisions of this Court. To put it another considered under the O'Brien standards. I do not be- way, I do not think a law contains the vice lieve, however, that the current record allows us to of being directed against expression if it say that the city has made a sufficient *311 eviden- bans all public nudity, except that public tiary showing to sustain its regulation, and I would nudity which the Supreme Court has held therefore vacate the decision of the Pennsylvania Su- cannot be banned because of its expressive preme Court and remand the case for further proceed- content. ings.
*310 Moreover, even were I to conclude that the city I of Erie had specifically singled out the activity of In several recent cases, we have confronted the need nude dancing, I still would not find that this regula- for factual justifications to satisfy intermediate scru- tion violated the First Amendment unless I could be tiny under the First Amendment. See, e.g., Nixon v. persuaded (as on this record I cannot) that it was the Shrink Missouri Government PAC, 528 U.S. 377, 120 communicative character of nude dancing that S.Ct. 897, 145 L.Ed.2d 886 (2000); Turner Broad- prompted the ban. When conduct other than speech casting System, Inc. v. FCC, 520 U.S. 180, 117 S.Ct. itself is regulated, it is my view that the First Amend- 1174, 137 L.Ed.2d 369 (1997) (Turner II); Turner ment is violated only "[w]here the government pro- Broadcasting System, Inc. v. FCC, 512 U.S. 622, 114
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S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner I). *312 In Turner I, for example, we stated that Those cases do not identify with any specificity a "[w]hen the Government defends a regulation on particular quantum of evidence, nor do I seek to do so speech as a means to redress past harms or prevent in this brief concurrence. [FN1] What the **1403 anticipated harms, it must do more than simply cases do make plain, however, is that application of 'posit the existence of the disease sought to be an intermediate scrutiny test to a government's asser- cured.' Quincy Cable TV, Inc. v. FCC, 768 F.2d ted rationale for regulation of expressive activity de- 1434, 1455 (C.A.D.C.1985). It must demonstrate mands some factual justification to connect that ra- that the recited harms are real, not merely conjec- tionale with the regulation in issue. tural, and that the regulation will in fact alleviate these harms in a direct and material way." Id., at FN1. As explained below, infra, at 1405, the 664, 114 S.Ct. 2445 (plurality opinion). issue of evidentiary justification was never joined, and with a multiplicity of factors af- The plurality concluded there, of course, that the re- fecting the analysis, a general formulation of cord, though swollen by three years of hearings on the quantum required under United States v. the Cable Television Consumer Protection and Com- O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 petition Act of 1992, was insufficient to permit the L.Ed.2d 672 (1968), will at best be diffi- necessary determinations and remanded for a more cult. A lesser showing may suffice when thorough factual development. When the case came the means-end fit is evident to the untutored back to us, in Turner II, a majority of the Court reit- intuition. As we said in Nixon, "The erated those requirements, characterizing the enquiry quantum of empirical evidence needed to into the acceptability of the Government's regulations satisfy heightened judicial scrutiny of legis- as one that turned on whether they "were designed to lative judgments will vary up or down with address a real harm, and whether those provisions the novelty and plausibility of the justifica- will alleviate it in a material way." 520 U.S., at 195, tion raised." 528 U.S., at 391, 120 S.Ct. 897. 117 S.Ct. 1174. Most recently, in Nixon, we re- (In O'Brien, for example, the secondary ef- peated that "[w]e have never accepted mere conjec- fects that the Government identified flowed ture as adequate to carry a First Amendment burden," from the destruction of draft cards, and there 528 U.S., at 392, 120 S.Ct. 897, and we examined the could be no doubt that a regulation prohibit- "evidence introduced into the record by petitioners or ing that destruction would alleviate the con- cited by the lower courts in this action ...," ibid. comitant harm.) The nature of the legislat- ing institution might also affect the calcu- The focus on evidence appearing in the record is con- lus. We do not require Congress to create a sistent with the approach earlier applied in Young v. record in the manner of an administrative American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. agency, see Turner II, 520 U.S. 180, 213, 2440, 49 L.Ed.2d 310 (1976), and Renton v. Playtime 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997), Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 and we accord its findings greater respect L.Ed.2d 29 (1986). In Young, Detroit adopted a zon- than those of agencies. See id., at 195, 117 ing ordinance requiring dispersal of adult theaters S.Ct. 1174. We might likewise defer less to through the city and prohibiting them within 500 feet a city council than we would to Congress. of a residential area. Urban planners and real estate The need for evidence may be especially experts attested to the harms created by clusters of acute when a regulation is content based on such theaters, see 427 U.S., at 55, 96 S.Ct. 2440, and its face and is analyzed as content neutral we found that "[t]he record *313 discloses a factual only because of the secondary effects doc- basis" supporting the efficacy of Detroit's chosen trine. And it may be greater when the regu- remedy, id., at 71, 96 S.Ct. 2440. In Renton, the city lation takes the form of a ban, rather than a similarly enacted a zoning ordinance requiring spe- time, place, or manner restriction. cified distances between adult theaters and residential zones, churches, parks, or schools. See 475 U.S., at
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44, 106 S.Ct. 925. The city "held public hearings, to agree to disagree. reviewed the experiences of Seattle and other cities, and received a report from the City Attorney's Office By these standards, the record before us today is defi- advising as to developments in other cities." Ibid. cient in its failure to reveal any evidence on which We found that Renton's failure to conduct its own Erie may have relied, either for the seriousness of the studies before enacting the ordinance was not fatal; threatened harm or for the efficacy of its chosen rem- "[t]he First Amendment does not require a city edy. The plurality does the best it can with the mater- **1404 ... to conduct new studies or produce evid- ials to hand, see ante, at 1395-1396, but the pickings ence independent of that already generated by other are slim. The plurality quotes the ordinance's pre- cities, so long as whatever evidence the city relies amble asserting that over the course of more than a upon is reasonably believed to be relevant to the century the city council had expressed "findings" of problem that the city addresses." Id., at 51-52, 106 detrimental secondary effects flowing from lewd and S.Ct. 925. immoral profitmaking activity in public places. But however accurate the recital may be and however The upshot of these cases is that intermediate scru- honestly the councilors may have held those conclu- tiny requires a regulating government to make some sions to be true over the years, the recitation does not demonstration of an evidentiary basis for the harm it get beyond conclusions on a subject usually fraught claims to flow from the expressive activity, and for with some emotionalism. The plurality recognizes the alleviation expected from the restriction imposed. this, of course, but seeks to ratchet up the value of [FN2] See, e.g., Edenfield v. Fane, 507 U.S. 761, mere conclusions by analogizing them to the legislat- 770-773, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) ive facts within an administrative agency's special (striking down regulation of commercial speech for knowledge, on which action is adequately premised failure to show direct and material efficacy). That in the absence of evidentiary challenge. Ante, at evidentiary basis may be borrowed from the records 1395-1396. The analogy is not obvious; agencies made by other governments if the experience else- are part of the executive branch and we defer to them where is germane to the measure under consideration in part to allow them the freedom necessary to recon- and actually relied upon. I will assume, further, that cile competing policies. See Chevron U.S.A. Inc. v. the reliance may be shown by legislative invocation Natural Resources Defense Council, Inc., 467 U.S. of a judicial opinion that accepted an evidentiary 837, 843-845, 104 S.Ct. 2778, 81 L.Ed.2d 694 foundation as sufficient *314 for a similar regula- (1984). That aside, it is one thing to accord adminis- tion. What is clear is that the evidence of reliance trative leeway as to predictive judgments in applying must be a matter of demonstrated fact, not speculat- " 'elusive concepts' " to circumstances where the re- ive supposition. cord is inconclusive and "evidence ... is difficult to compile," FCC v. National Citizens Comm. for FN2. The plurality excuses Erie from this re- Broadcasting, 436 U.S. 775, 796-797, 98 S.Ct. 2096, quirement with the simple observation that 56 L.Ed.2d 697 (1978), and quite another to dispense "it is evident" that the regulation will have with evidence of current fact as a predicate for ban- the required efficacy. Ante, at 1397. The ning a subcategory of expression. [FN3] As *315 to ipse dixit is unconvincing. While I do agree current fact, the city council's closest **1405 ap- that evidentiary demands need not ignore an proach to an evidentiary record on secondary effects obvious fit between means and ends, see n. and their causes was the statement of one councilor, 1, supra, it is not obvious that this is such a during the debate over the ordinance, who spoke of case. It is not apparent to me as a matter of increases in sex crimes in a way that might be con- common sense that establishments featuring strued as a reference to secondary effects. See App. dancers with pasties and G-strings will differ 44. But that reference came at the end of a litany of markedly in their effects on neighborhoods concerns ("free condoms in schools, drive-by shoot- from those whose dancers are nude. If the ings, abortions, suicide machines," and declining stu- plurality does find it apparent, we may have
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 22 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) dent achievement test scores) that do not seem to be didn't need any other ordinances." App. 43. Another secondary effects of nude dancing. Ibid. Nor does commented, "I felt very, very strongly, and I feel just the invocation of Barnes v. Glen Theatre, Inc., 501 as strongly right now, that this is a zoning U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), in matter." Id., at 45. Even on the plurality's view of one paragraph of the preamble to Erie's ordinance the evidentiary burden, this hurdle to the application suffice. App. to Pet. for Cert. 42a. The plurality of O'Brien requires an evidentiary response. opinion in Barnes made no mention of evidentiary showings at all, and though my separate opinion did The record suggests that Erie simply did not try to make a pass at the issue, I did not demand reliance on create a record of the sort we have held necessary in germane evidentiary demonstrations, whether specif- other cases, and the suggestion is confirmed by the ic to the statute in question or developed elsewhere. course of this litigation. The evidentiary question To invoke Barnes, therefore, does not indicate that was never decided (or, apparently, argued) below, the issue of evidence has been addressed. nor was the issue fairly joined before this Court. While respondent did claim that the evidence before FN3. The proposition that the presence of the city council was insufficient to support the ordin- nude dancing establishments increases the ance, see Brief for Respondent 44-49, Erie's reply incidence of prostitution and violence is urged us not to consider the question, apparently as- amenable to empirical treatment, and the suming that Barnes authorized us to disregard it. city councilors who enacted Erie's ordinance See Reply Brief for Petitioners 6- 8. The question are in a position to look to the facts of their has not been addressed, and in that respect this case own community's experience as well as to has come unmoored from the general standards of experiences elsewhere. Their failure to do our First Amendment jurisprudence. [FN4] so is made all the clearer by one of the amicus briefs, largely devoted to the argu- FN4. By contrast, federal courts in other ment that scientifically sound studies show cases have frequently demanded evidentiary no such correlation. See Brief for First showings. See, e.g., Phillips v. Keyport, Amendment Lawyers Association as Amicus 107 F.3d 164, 175 (C.A.3 1997) (en banc); J Curiae 16-23; id., at App. 1-29. & B Entertainment, Inc. v. Jackson, 152 F.3d 362, 370-371 (C.A.5 1998). There is one point, however, on which an evidentiary record is not quite so hard to find, but it hurts, not Careful readers, and not just those on the Erie City helps, the city. The final O'Brien requirement is that Council, will of course realize that my partial dissent the incidental speech restriction be shown to be no rests on a demand for an evidentiary basis that I greater than essential to achieve the government's le- failed to make when I concurred in Barnes, supra. I gitimate purpose. 391 U.S., at 377, 88 S.Ct. 1673. should have demanded the evidence then, too, and To deal with this issue, we have to ask what basis my mistake calls to mind Justice Jackson's foolproof there is to think that the city would be unsuccessful in explanation of a lapse of his own, when he quoted countering any secondary effects by the significantly Samuel Johnson, " 'Ignorance, sir, ignorance.' " Mc- lesser restriction of zoning to control the location of Grath v. Kristensen, 340 U.S. 162, 178, 71 S.Ct. 224, nude dancing, thus allowing for efficient law enforce- 95 L.Ed. 173 (1950) (concurring *317 opinion). ment, restricting effects on property values, and limit- [FN5] I may not be less ignorant of nude dancing ing exposure of the public. *316 The record shows than I was nine years ago, but after many subsequent that for 23 years there has been a zoning ordinance occasions to think further about the needs of the on the books to regulate the location of establish- **1406 First Amendment, I have come to believe that ments like Kandyland, but the city has not enforced a government must toe the mark more carefully than I it. One councilor remarked that "I think there's one first insisted. I hope it is enlightenment on my part, of the problems. The ordinances are on the books and acceptable even if a little late. See Henslee v. and not enforced. Now this takes place. You really Union Planters Nat. Bank & Trust Co., 335 U.S. 595,
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600, 69 S.Ct. 290, 93 L.Ed. 259 (1949) (per curiam) neither by precedent nor by persuasive reasoning. (Frankfurter, J., dissenting). I FN5. See Boswell, Life of Samuel Johnson, As the preamble to Ordinance No. 75-1994 candidly in 44 Great Books of the Western World 82 acknowledges, the council of the city of Erie enacted (R. Hutchins & M. Adler eds. 1952). the restriction at issue "for the purpose of limiting a recent increase in nude live entertainment within the II City." Ante, at 1391 (internal quotation marks omit- The record before us now does not permit the conclu- ted). Prior to the enactment of the ordinance, the sion that Erie's ordinance is reasonably designed to dancers at Kandyland performed in the nude. As the mitigate real harms. This does not mean that the re- Court recognizes, after its enactment they can per- quired showing cannot be made, only that, on this re- form precisely the same dances if they wear "pasties cord, Erie has not made it. I would remand to give it and G-strings." Ante, at 1393; see also ante, at 1404, the opportunity to do so. [FN6] Accordingly, al- n. 2 (SOUTER, J., concurring in part and dissenting though I join with the plurality in adopting the in part). In both instances, the erotic messages con- O'Brien test, I respectfully dissent from the Court's veyed by the dancers to a willing audience are a form disposition of the case. of expression protected by the First Amendment. Ante, at 1391. [FN1] Despite the simil- FN6. This suggestion does not, of course, arity between the messages conveyed by the two bar the Pennsylvania Supreme Court from forms of dance, they are not identical. choosing simpler routes to disposition of the case if they exist. Respondent mounted a FN1. Respondent does not contend that federal overbreadth challenge to the ordin- there is a constitutional right to engage in ance; it also asserted a violation of the conduct such as lap dancing. The message Pennsylvania Constitution. Either one of of eroticism conveyed by the nudity aspect these arguments, if successful, would obvi- of the dance is quite different from the issue ate the need for the factual development that of the proximity between dancer and audi- is a prerequisite to O'Brien analysis. ence. Respondent's contention is not that Erie has focused on lap dancers, see ante, at Justice STEVENS, with whom Justice GINSBURG 1401 (SCALIA, J., concurring in judgment), joins, dissenting. but that it has focused on the message con- Far more important than the question whether nude veyed by nude dancing. dancing is entitled to the protection of the First If we accept Chief Judge Posner's evaluation of this Amendment are the dramatic changes in legal doc- art form, see Miller v. South Bend, 904 F.2d 1081, trine that the Court endorses today. Until now, the 1089-1104 (C.A.7 1990) (en banc), the difference "secondary effects" of commercial enterprises featur- between the two messages is significant. The plural- ing indecent entertainment have justified only the ity assumes, however, that the difference in the con- regulation of their location. For the first time, the tent of the message resulting from *319 the mandated Court has now held that such effects may justify *318 costume change is "de minimis." Ante, at 1393. Al- the total suppression of protected speech. Indeed, the though I suspect that the patrons of Kandyland are plurality opinion concludes that admittedly trivial ad- more likely to share Chief Judge Posner's view than vancements of a State's interests may provide the the plurality's, for present purposes I shall accept the basis for censorship. The Court's commendable at- assumption that the difference in the message is tempt to replace the fractured decision in Barnes v. small. The crucial point to remember, however, is Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, **1407 that whether one views the difference as 115 L.Ed.2d 504 (1991), with a single coherent ra- large or small, nude dancing still receives First tionale is strikingly unsuccessful; it is supported Amendment protection, even if that protection lies
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 24 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) only in the "outer ambit" of that Amendment. Ante, at "At most the impact of the ordinance on [the First 1391. Erie's ordinance, therefore, burdens a message Amendment] interests is incidental and minimal. protected by the First Amendment. If one assumes Detroit has silenced no message, has invoked no that the same erotic message is conveyed by nude censorship, and has imposed no limitation upon dancers as by those wearing miniscule costumes, one those who wish to view them. The ordinance is ad- means of expressing that message is banned; dressed only to the places at which this type of ex- [FN2] if one assumes that the messages are different, pression may be presented, a restriction that does one of those messages is banned. In either event, the not interfere with content. Nor is there any signi- ordinance is a total ban. ficant overall curtailment of adult movie presenta- tions, or the opportunity for a message to reach an FN2. Although nude dancing might be de- audience." Id., at 78-79, 96 S.Ct. 2440. scribed as one protected "means" of convey- See also id., at 81, n. 4, 96 S.Ct. 2440 ("[A] zoning ing an erotic message, it does not follow that ordinance that merely specifies where a theater may a protected message has not been totally locate, and that does not reduce significantly the banned simply because there are other, sim- number or accessibility of theaters presenting particu- ilar ways to convey erotic messages. See lar films, stifles no expression"). ante, at 1393. A State's prohibition of a particular book, for example, does not fail to In Renton v. Playtime Theatres, Inc., 475 U.S. 41, be a total ban simply because other books 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), we upheld a conveying a similar message are available. similar ordinance, again finding that the "secondary effects of such theaters on the surrounding com- The plurality relies on the so-called "secondary ef- munity" justified a restrictive zoning law. Id., at 47, fects" test to defend the ordinance. Ante, at 106 S.Ct. 925 (emphasis deleted). We noted, 1391-1395. The present use of that rationale, however, that "[t]he Renton ordinance, like the one in however, finds no support whatsoever in our preced- American Mini Theatres, does not ban adult theaters ents. Never before have we approved the use of that altogether," but merely "circumscribe[s] their choice doctrine to justify a total ban on protected First as to location." Id., at 46, 48, 106 S.Ct. 925; see also Amendment expression. On the contrary, we have id., at 54, 106 S.Ct. 925 ("In our view, the First been quite clear that the doctrine would not support Amendment requires ... that Renton refrain from ef- that end. fectively denying respondents a reasonable opportun- ity to open and operate an adult theater within the In Young v. American Mini Theatres, Inc., 427 U.S. city ..."). Indeed, in both Renton and American Mini 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), we upheld Theatres, the zoning ordinances were analyzed as a Detroit zoning ordinance that placed special restric- mere "time, *321 place, and manner" regulations. tions on the location of motion picture theaters that [FN3] See **1408Renton, 475 U.S., at 46, 106 S.Ct. exhibited "adult" movies. The "secondary effects" of 925; American Mini Theatres, 427 U.S., at 63, and n. the adult theaters on the neighborhoods where they 18, 96 S.Ct. 2440; id., at 82, n. 6, 96 S.Ct. 2440. Be- were located--lower property values and increases in cause time, place, and manner regulations must crime (especially prostitution) to name a few- "leave open ample alternative channels for commu- -justified the burden imposed *320 by the ordinance. nication of the information," Ward v. Rock Against Id., at 54, 71, and n. 34, 96 S.Ct. 2440 (plurality opin- Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 ion). Essential to our holding, however, was the fact L.Ed.2d 661 (1989), a total ban would necessarily fail that the ordinance was "nothing more than a limita- that test. [FN4] tion on the place where adult films may be exhibited" and did not limit the size of the market in such FN3. The plurality contends, ante, at 1394, speech. Id., at 71, 96 S.Ct. 2440; see also id., at 61, that Ward v. Rock Against Racism, 491 U.S. 63, n. 18, 70, 71, n. 35, 96 S.Ct. 2440. As Justice 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 Powell emphasized in his concurrence: (1989), shows that we have used the second-
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ary effects rationale to justify more burden- adverse effects remains. some restrictions than those approved in Renton and American Mini Theatres. That And we so held in Schad v. Mount Ephraim, 452 U.S. argument is unpersuasive for two reasons. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). There, First, as in the two cases just mentioned, the we addressed a zoning ordinance that did not merely regulation in Ward was as a time, place, and require the dispersal of adult theaters, but prohibited manner restriction. See 491 U.S., at 791, *322 them altogether. In striking down that law, we 109 S.Ct. 2746; id., at 804, 109 S.Ct. 2746 focused precisely on that distinction, holding that the (Marshall, J., dissenting). Second, as dis- secondary effects analysis endorsed in the past did cussed below, Ward is not a secondary ef- not apply to an ordinance that totally banned nude fects case. See infra, at 1410-1411. dancing: "The restriction [in Young v. American Mini Theatres] did not affect the number of adult movie FN4. We also held in Renton that in enact- theaters that could operate in the city; it merely dis- ing its adult theater zoning ordinance, the persed them. The Court did not imply that a muni- city of Renton was permitted to rely on a de- cipality could ban all adult theaters--much less all tailed study conducted by the city of Seattle live entertainment or all nude dancing--from its com- that examined the relationship between zon- mercial districts citywide." Id., at 71, 96 S.Ct. 2440 ing controls and the secondary effects of (plurality opinion); see also id., at 76, 96 S.Ct. 2440; adult theaters. (It was permitted to rely as id., at 77, 96 S.Ct. 2440 (Blackmun, J., concurring) well on "the 'detailed findings' summarized" (joining plurality); id., at 79, 96 S.Ct. 2440 (Powell, in an opinion of the Washington Supreme J., concurring) (same). Court to the same effect.) 475 U.S., at 51-52, 106 S.Ct. 925. Renton, having iden- The reason we have limited our secondary effects tified the same problem in its own city as cases to zoning and declined to extend their reason- that experienced in Seattle, quite logically ing to total bans is clear and straightforward: A dis- drew on Seattle's experience and adopted a persal that simply limits the places where speech may similar solution. But if Erie is relying on occur is a minimal imposition, whereas a total ban is the Seattle study as well (as the plurality the most exacting of restrictions. The State's interest suggests, ante, at 1395), its use of that study in fighting presumed secondary effects is sufficiently is most peculiar. After identifying a prob- strong to justify the former, but far too weak to sup- lem in its own city similar to that in Seattle, port the latter, more severe burden. [FN5] Yet it is Erie has implemented a solution (pasties and perfectly clear that in the present case--to use Justice G-strings) bearing no relationship to the ef- Powell's metaphor in American Mini Theatres--the ficacious remedy identified by the Seattle city of Erie has totally silenced a message the dancers study (dispersal through zoning). at Kandyland want to convey. The fact that this cen- But the city of Erie, of course, has not in fact sorship may have a laudable ulterior purpose cannot pointed to any study by anyone suggesting mean that censorship is not censorship. **1409 For that the adverse secondary effects of com- these reasons, the Court's holding rejects the explicit mercial enterprises featuring erotic dancing reasoning in American Mini Theatres and Renton and depends in the slightest on the precise cos- the express holding in Schad. tume worn by the performers--it merely as- FN5. As the plurality recognizes by quoting sumes it to be so. See infra, at 1409-1410. my opinion in Young v. American Mini If the city is permitted simply to assume that Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. a slight addition to the dancers' costumes 2440, 49 L.Ed.2d 310 (1976), see ante, at will sufficiently decrease secondary effects, 1393-1394, "the First Amendment will not then presumably the city can require more tolerate the total suppression of erotic mater- and more clothing as long as any danger of ials that have some artistic value," though it
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will permit zoning regulations. 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), "requires only that the regulation further the interest in *324 com- The Court's use of the secondary effects rationale to bating such effects," ante, at 1397; see also ante, at permit a total ban has grave implications for basic 1391. It is one thing to say, however, that O'Brien is free speech principles. Ordinarily, laws regulating more lenient than the "more demanding standard" we the primary effects of speech, i.e., the intended per- have imposed in cases such as Texas v. Johnson, 491 suasive effects caused by the *323 speech, are pre- U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989). sumptively invalid. Under today's opinion, a State See ante, at 1391. It is quite another to say that the may totally ban speech based on its secondary ef- test can be satisfied by nothing more than the mere fects--which are defined as those effects that "happen possibility of de minimis effects on the neighborhood. to be associated" with speech, Boos v. Barry, 485 U.S. 312, 320-321, 108 S.Ct. 1157, 99 L.Ed.2d 333 The plurality is also mistaken in equating our second- (1988); see ante, at 1392--yet the regulation is not ary effects cases with the "incidental burdens" doc- presumptively invalid. Because the category of ef- trine applied in cases such as O'Brien; and it aggrav- fects that "happen to be associated" with speech in- ates the error by invoking the latter line of cases to cludes the narrower subset of effects caused by support its assertion that Erie's ordinance is unrelated speech, today's holding has the effect of swallowing to speech. The incidental burdens doctrine applies whole a most fundamental principle of First Amend- when " 'speech' and 'nonspeech' elements are com- ment jurisprudence. bined in the same course of conduct," and the govern- ment's interest in regulating the latter justifies incid- II ental burdens on the former. O'Brien, 391 U.S., at The plurality's mishandling of our secondary effects 376, 88 S.Ct. 1673. Secondary effects, on the other cases is not limited to its approval of a total ban. It hand, are indirect consequences of protected speech compounds that error by dramatically reducing the and may justify regulation of the places where that degree to which the State's interest must be furthered speech may occur. See American Mini Theatres, by the restriction imposed on speech, and by ignoring 427 U.S., at 71, n. 34, 96 S.Ct. 2440 ("[A] concentra- the critical difference between secondary effects tion of 'adult' movie theaters causes the area to deteri- caused by speech and the incidental effects on speech orate and become a focus of crime"). [FN6] When a that may be caused by a regulation of conduct. State enacts **1410 a regulation, it might focus on the secondary effects of speech as its aim, or it might In what can most delicately be characterized as an concentrate on nonspeech related concerns, having no enormous understatement, the plurality concedes that thoughts at all with respect to how its regulation will "requiring dancers to wear pasties and G-strings may affect speech--and only later, when the regulation is not greatly reduce these secondary effects." Ante, at found to burden speech, justify the imposition as an 1397. To believe that the mandatory addition of pas- unintended incidental consequence. [FN7] But those ties and a G-string will have any kind of noticeable interests are not the *325 same, and the plurality can- impact on secondary effects requires nothing short of not ignore their differences and insist that both aims a titanic surrender to the implausible. It would be are equally unrelated to speech simply because Erie more accurate to acknowledge, as Justice SCALIA might have "recogniz[ed]" that it could possibly have does, that there is no reason to believe that such a re- had either aim in mind. See ante, at 1394. [FN8] quirement "will at all reduce the tendency of estab- One can think of an apple and an orange at the same lishments such as Kandyland to attract crime and time; that does not turn them into the same fruit. prostitution, and hence to foster sexually transmitted disease." Ante, at 1402 (opinion concurring in judg- FN6. A secondary effect on the neighbor- ment); see also ante, at 1404, n. 2 (SOUTER, J., con- hood that "happen[s] to be associated with" curring in part and dissenting in part). Nevertheless, a form of speech is, of course, critically dif- the plurality concludes that the "less stringent" test ferent from "the direct impact of speech on announced in United States v. O'Brien, 391 U.S. 367, its audience." Boos v. Berry, 485 U.S. 312,
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320-321, 108 S.Ct. 1157, 99 L.Ed.2d 333 those effects is the suppression of the message. [FN9] (1988). The primary effect of speech is the For these reasons, the plurality's argument that "this persuasive effect of the message itself. case is similar to O'Brien," ante, at 1392; see also ante, at 1394, is quite wrong, as are its *326 citations FN7. In fact, the very notion of focusing in to Clark v. Community for Creative Non-Violence, on incidental burdens at the time of enact- 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 ment appears to be a contradiction in terms. (1984), and Ward v. Rock Against Racism, 491 U.S. And if it were not the case that there is a dif- 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), ante, at ference between laws aimed at secondary ef- 1393-1394, neither of which involved secondary ef- fects and general bans incidentally burden- fects. The plurality cannot have its cake and eat it ing speech, then one wonders why Justices too--either Erie's ordinance was not aimed at speech SCALIA and SOUTER adopted such strik- and the plurality may attempt to justify the regulation ingly different approaches in Barnes v. Glen under the incidental burdens test, or Erie has aimed Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, its law at the secondary effects of speech, and the 115 L.Ed.2d 504 (1991). plurality can try to justify the law under that doc- trine. But it cannot conflate the two with the expect- FN8. I frankly do not understand the plural- ation that Erie's interests aimed at secondary effects ity's declaration that a State's interest in the will be rendered unrelated to speech by virtue of this secondary effects of speech that "are associ- doctrinal polyglot. ated" with the speech are not "related" to the speech. Ante, at 1393. See, e.g., Webster's FN9. As Justice Powell said in his concur- Third New International Dictionary 132 rence in Young v. American Mini Theatres, (1966) (defining "associate" as "closely re- 427 U.S., at 82, n. 4, 96 S.Ct. 2440: "[H]ad lated"). Sometimes, though, the plurality [Detroit] been concerned with restricting the says that the secondary effects are "caused" message purveyed by adult theaters, it by the speech, rather than merely "associ- would have tried to close them or restrict ated with" the speech. See, e.g., ante, at their number rather than circumscribe their 1392, 1393, 1395, 1396-1397. If that is the choice as to location." Quite plainly, Erie's definition of secondary effects the plurality total ban evinces its concern with the mes- adopts, then it is even more obvious that an sage being regulated. interest in secondary effects is related to the speech at issue. See Barnes, 501 U.S., at Correct analysis of the issue in this case should begin 585-586, 111 S.Ct. 2456 (SOUTER, J., con- with the proposition that nude dancing is a species of curring in judgment) (secondary effects are expressive conduct that is protected by the First not related to speech because their connec- Amendment. As Chief Judge Posner has observed, tion to speech is only one of correlation, not nude dancing fits well within a broad, cultural tradi- causation). tion recognized as expressive **1411 in nature and entitled to First Amendment protection. See 904 Of course, the line between governmental interests F.2d, at 1089-1104; see also Note, 97 Colum. L.Rev. aimed at conduct and unrelated to speech, on the one 1844 (1997). The nudity of the dancer is both a com- hand, and interests arising out of the effects of the ponent of the protected expression and the specific speech, on the other, may be somewhat imprecise in target of the ordinance. It is pure sophistry to reason some cases. In this case, however, we need not from the premise that the regulation of the nudity wrestle with any such difficulty because Erie has ex- component of nude dancing is unrelated to the mes- pressly justified its ordinance with reference to sec- sage conveyed by nude dancers. Indeed, both the ondary effects. Indeed, if Erie's concern with the ef- text of the ordinance and the reasoning in the plural- fects of the message were unrelated to the message it- ity's opinion make it pellucidly clear that the city of self, it is strange that the only means used to combat Erie has prohibited nude dancing "precisely because
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 28 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) of its communicative attributes." Barnes, 501 U.S., at pression: that purpose is to impact negat- 577, 111 S.Ct. 2456 (SCALIA, J., concurring in judg- ively on the erotic message of the dance.... ment) (emphasis in original); see id., at 596, 111 We believe ... that the stated purpose for S.Ct. 2456 (White, J., dissenting). promulgating the Ordinance is inextricably linked with the content-based motivation to III suppress the expressive nature of nude dan- The censorial purpose of Erie's ordinance precludes cing." 553 Pa. 348, 359, 719 A.2d 273, 279 reliance on the judgment in Barnes as sufficient sup- (1998). port for the Court's holding today. Several differ- ences between the Erie ordinance and the statute at Erie's ordinance differs from the statute in Barnes in issue in Barnes belie the plurality's assertion that the another respect. In Barnes, the Court expressly ob- two laws are "almost identical." *327 Ante, at 1391. served that the Indiana statute had not been given a To begin with, the preamble to Erie's ordinance can- limiting construction by the Indiana Supreme Court. didly articulates its agenda, declaring: As presented to this Court, there was nothing about "Council specifically wishes to adopt the concept the law itself that would confine its application to of Public Indecency prohibited by the laws of the nude dancing in adult entertainment establishments. State of Indiana, which was approved by the U.S. See 501 U.S., at 564, n. 1, 111 S.Ct. 2456 (discussing Supreme Court in Barnes v. Glen Theatre Inc., ... Indiana Supreme Court's lack of a limiting construc- for the purpose of limiting a recent increase in tion); see also id., at 585, n. 2, 111 S.Ct. 2456 nude live entertainment within the City." App. to (SOUTER, J., concurring in judgment). *328 Erie's Pet. for Cert. 42a (emphasis added); see also ante, ordinance, however, comes to us in a much different at 1391-1392. [FN10] posture. In an earlier proceeding in this case, the Court of Common Pleas asked Erie's counsel "what FN10. The preamble also states: "[T]he effect would this ordinance have on theater ... pro- Council of the City of Erie has [found] ... ductions such as Equus, Hair, O[h!] Calcutta [!]? that certain lewd, immoral activities carried Under your ordinance would these things be preven- on in public places for profit ... lead to the ted ... ?" Counsel responded: "No, they wouldn't, debasement of both women and men ... ." Your Honor." App. 53. [FN12] Indeed, as stipulated App. to Pet. for Cert. 41a. in **1412 the record, the city permitted a production of Equus to proceed without prosecution, even after As its preamble forthrightly admits, the ordinance's the ordinance was in effect, and despite its awareness "purpose" is to "limi[t]" a protected form of speech; of the nudity involved in the production. Id., at 84. its invocation of Barnes cannot obliterate that pro- [FN13] Even if, in light of its broad applicability, the fessed aim. [FN11] statute in Barnes was not aimed at a particular form FN11. Relying on five words quoted from of speech, Erie's ordinance is quite different. As the Supreme Court of Pennsylvania, the presented to us, the ordinance is deliberately targeted plurality suggests that I have misinterpreted at Kandyland's type of nude dancing (to the exclusion that court's reading of the preamble. Ante, at of plays like Equus), in terms of both its applicable 1392. What follows, however, is a more scope and the city's enforcement. [FN14] complete statement of what that court said FN12. In my view, Erie's categorical re- on this point: sponse forecloses Justice SCALIA's asser- "We acknowledge that one of the purposes tion that the city's position on Equus and of the Ordinance is to combat negative sec- Hair was limited to "[o]ne instance," where ondary effects. That, however, is not its "the city was [not] aware of the nudity," and only goal. Inextricably bound up with this "no one had complained." Ante, at 1401 stated purpose is an unmentioned purpose (opinion concurring in judgment). Nor that directly impacts on the freedom of ex- could it be contended that selective applic-
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ability by stipulated enforcement should be exempted but Kandyland is not, since treated differently from selective applicabil- Barnes held that both are constitutionally ity by statutory text. See Barnes, 501 U.S., protected. Justice SCALIA also states that at 574, 111 S.Ct. 2456 (SCALIA, J., concur- even if the ordinance singled out nude dan- ring in judgment) (selective enforcement cing, he would not strike down the law un- may affect a law's generality). Were it oth- less the dancing was singled out because of erwise, constitutional prohibitions could be its message. Ante, at 1402. He opines that circumvented with impunity. here, the basis for singling out Kandyland is morality. Ibid. But since the "morality" of FN13. The stipulation read: "The play, the public nudity in Hair is left untouched by 'Equus' featured frontal nudity and was per- the ordinance, while the "immorality" of the formed for several weeks in October/ public nudity in Kandyland is singled out, November 1994 at the Roadhouse Theater in the distinction cannot be that "nude public downtown Erie with no efforts to enforce dancing itself is immoral." Ibid. (emphasis the nudity prohibition which became effect- in original). Rather, the only arguable dif- ive during the run of the play." ference between the two is that one's mes- sage is more immoral than the other's. FN14. Justice SCALIA argues that Erie might have carved out an exception for *329 This narrow aim is confirmed by the expressed Equus and Hair because it guessed that this views of the Erie City Councilmembers who voted Court would consider them protected forms for the ordinance. The four city councilmembers of expression, see Southeastern Promotions, who approved the measure (of the six total council- Ltd. v. Conrad, 420 U.S. 546, 550, 557-558, members) each stated his or her view that the ordin- 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) ance was aimed specifically at nude adult entertain- (holding that Hair, including the "group nud- ment, and not at more mainstream forms of entertain- ity and simulated sex" involved in the pro- ment that include total nudity, nor even at nudity in duction, is protected speech); in his view, general. One lawmaker observed: "We're not talk- that makes the distinction unobjectionable ing about nudity. We're not talking about the theater and renders the ordinance no less of a gener- or art .... We're talking about what is indecent and im- al law. Ante, at 1401-1402 (opinion concur- moral .... We're not prohibiting nudity, we're prohibit- ring in judgment). This argument appears ing nudity when it's used in a lewd and immoral fash- to contradict his earlier definition of a gener- ion." App. 39. Though not quite as succinct, the oth- al law: "A law is 'general' ... if it regulates er councilmembers expressed similar convictions. conduct without regard to whether that con- For example, one member illustrated his understand- duct is expressive." Barnes v. Glen Theatre, ing of the aim of the law by contrasting it with his re- Inc., 501 U.S., at 576, n. 3, 111 S.Ct. 2456 collection about high school students swimming in (opinion concurring in judgment). If the or- the nude in the school's pool. The ordinance was not dinance regulates conduct (public nudity), it intended to cover those incidents of nudity: "But does not do so without regard to whether the what I'm getting at is [the swimming] wasn't inde- nudity is expressive if it exempts the public cent, it wasn't an immoral thing, and *330 yet there nudity in Hair precisely "because of its ex- was nudity." Id., at 42. The same lawmaker then dis- pressive content." Ante, at 1402, n. 6 favorably compared the nude swimming incident to (opinion concurring in judgment). the activities that occur in "some of these clubs" that Moreover, if Erie exempts Hair because it exist in Erie--clubs that would be covered **1413 by wants to avoid a conflict with the First the law. Ibid. [FN15] Though such comments could Amendment (rather than simply to exempt be consistent with an interest in a general prohibition instances of nudity it finds inoffensive), that of nudity, the complete absence of commentary on rationale still does not explain why Hair is
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 120 S.Ct. 1382 Page 30 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 (Cite as: 529 U.S. 277, 120 S.Ct. 1382) that broader interest, and the councilmembers' exclus- we have in the record the actual statements ive focus on adult entertainment, is evidence of the of all the city councilmembers who voted in ordinance's aim. In my view, we need not strain to favor of the ordinance. find consistency with more general purposes when the most natural reading of the record reflects a near The text of Erie's ordinance is also significantly dif- obsessive preoccupation with a single target of the ferent from the law upheld in Barnes. In Barnes, the law. [FN16] statute defined "nudity" as "the showing of the hu- man male or female *331 genitals" (and certain other FN15. Other members said their focus was regions of the body) "with less than a fully opaque on "bottle clubs," and the like, App. 43, and covering." 501 U.S., at 569, n. 2, 111 S.Ct. 2456. The attempted to downplay the effect of the or- Erie ordinance duplicates that definition in all materi- dinance by acknowledging that "the girls al respects, but adds the following to its definition of can wear thongs or a G-string and little pas- "[n]udity": ties that are smaller than a diamond." Ibid. " '[T]he exposure of any device, costume, or cover- Echoing that focus, another member stated ing which gives the appearance of or simulates the that "[t]here still will be adult entertainment genitals, pubic hair, natal cleft, perineum anal re- in this town, only it will be in a little differ- gion or pubic hair region; or the exposure of any ent form." Id., at 47. device worn as a cover over the nipples and/or are- ola of the female breast, which device simulates FN16. The plurality dismisses this evidence, and gives the realistic appearance of nipples and/ declaring that it "will not strike down an or areola.' " Ante, at 1388, n. * (emphasis added). otherwise constitutional statute on the basis Can it be doubted that this out-of-the-ordinary of an alleged illicit motive." Ante, at 1392 definition of "nudity" is aimed directly at the dancers (citing United States v. O'Brien, 391 U.S. in establishments such as Kandyland? Who else is 367, 382-383, 88 S.Ct. 1673, 20 L.Ed.2d likely to don such garments? [FN17] We should not 672 (1968); Renton v. Playtime Theatres, stretch to embrace fanciful explanations when the Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 most natural reading of the ordinance unmistakably L.Ed.2d 29 (1986)). First, it is worth point- identifies its intended target. ing out that this doctrinaire formulation of O'Brien's cautionary statement is over- FN17. Is it seriously contended (as would be broad. See generally L. Tribe, American necessary to sustain the ordinance as a gen- Constitutional Law § 12-5, pp. 819-820 (2d eral prohibition) that, when crafting this ed.1988). Moreover, O'Brien itself said bizarre definition of "nudity," Erie's concern only that we would not strike down a law was with the use of simulated nipple covers "on the assumption that a wrongful purpose on "nude beaches and [by otherwise] un- or motive has caused the power to be exer- clothed purveyors of hot dogs and machine ted," 391 U.S., at 383, 88 S.Ct. 1673 tools"? Barnes, 501 U.S., at 574, 111 S.Ct. (emphasis added; internal quotation marks 2456 (SCALIA, J., concurring in judgment); omitted), and that statement was due to our see also ante, at 1401 (SCALIA, J., concur- recognition that it is a "hazardous matter" to ring in judgment). It is true that one might determine the actual intent of a body as large conceivably imagine that is Erie's aim. But as Congress "on the basis of what fewer than it is far more likely that this novel definition a handful of Congressmen said about [a was written with the Kandyland dancers and law]," id., at 384, 88 S.Ct. 1673. Yet neither the like in mind, since they are the only ones consideration is present here. We need not covered by the law (recall that plays like base our inquiry on an "assumption," nor Equus are exempted from coverage) who are must we infer the collective intent of a large likely to utilize such unconventional cloth- body based on the statements of a few, for ing.
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It is clear beyond a shadow of a doubt that the Erie 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265, 68 ordinance was a response to a more specific concern USLW 4239, 28 Media L. Rep. 1545, 00 Cal. Daily than nudity in general, namely, nude dancing of the Op. Serv. 2443, 2000 Daily Journal D.A.R. 3255, sort found in Kandyland. [FN18] Given that the 2000 CJ C.A.R. 1618, 13 Fla. L. Weekly Fed. S 203 **1414 Court has not even tried to defend *332 the ordinance's total ban on the ground that its censorship Briefs and Other Related Documents (Back to top) of protected speech might be justified by an overrid- • 1999 WL 1075161, 68 USLW 3350 (Oral Argu- ing state interest, it should conclude that the ordin- ment) Oral Argument (Nov. 10, 1999) ance is patently invalid. For these reasons, as well as the reasons set forth in Justice White's dissent in • 1999 WL 996952 (Appellate Brief) REPLY BRIEF Barnes, I respectfully dissent. FOR PETITIONERS (Nov. 01, 1999)
FN18. The plurality states that Erie's ordin- • 1999 WL 787880 (Appellate Brief) BRIEF OF ance merely "replaces and updates provi- AMICI CURIAE DEJA VU CONSULTING, INC. sions of an 'Indecency and Immorality' or- AND DEJA VU OF NASHVILLE, INC., IN SUP- dinance" from the mid-19th century, just as PORT OF RESPONDENT (Sep. 30, 1999) the statute in Barnes did. Ante, at 1391. First of all, it is not clear that this is correct. The • 1999 WL 787884 (Appellate Brief) BRIEF OF THE record does indicate that Erie's Ordinance AMERICAN CIVIL LIBERTIES UNION AND THE No. 75-1994 updates an older ordinance of ACLU OF PENNSYLVANIA AS AMICI CURIAE similar import. Unfortunately, that old reg- SUPPORTING RESPONDENT (Sep. 30, 1999) ulation is not in the record. Consequently, whether the new ordinance merely "re- • 1999 WL 787886 (Appellate Brief) AMICI CURI- places" the old one is a matter of debate. AE BRIEF OF THE THOMAS JEFFERSON CEN- From statements of one councilmember, it TER FOR PROTECTION OF FREE EXPRESSION, can reasonably be inferred that the old or- ALLEY THEATRE, ASSOCIATION OF PER- dinance was merely a residential zoning re- FORMING ARTS PRESENTERS, KATHLEEN striction, not a total ban. See App. 43. If CHALFANT, DANCE/USA, TONY KUSHNER, that is so, it leads to the further question why THE LOOKINGGLASS THEATRE CO., TER- Erie felt it necessary to shift to a total ban in RENCE MCNALLY, OREGON SHAKESPE ARE 1994. COMPANY, YVONNE RAINER, RACHEL But even if the plurality's factual contention ROSENTHAL, THEATER ARTAUD, THEATRE is correct, it does not undermine the points I COMMUNICATIONS GROUP, AND THE WALK- have made in the text. In Barnes, the point ER ART CENTER (Sep. 30, 1999) of noting the ancient pedigree of the Indiana • 1999 WL 787890 (Appellate Brief) MOTION FOR statute was to demonstrate that its passage LEAVE TO FILE AMICI CURIAE BRIEF AND antedated the appearance of adult entertain- BRIEF OF AMICI CURIAE BILL CONTE, ON BE- ment venues, and therefore could not have HALF OF THE DANTE PROJECT: INFERNO been motivated by the presence of those es- AND THE NATIONAL CAMPAIGN FOR FREE- tablishments. The inference supposedly re- DOM OF EXPRESSION, IN SUPPORT OF PAP'S butted in Barnes stemmed from the timing A.M. (Sep. 30, 1999) of the enactment. Here, however, the infer- ences I draw depend on the text of the ordin- • 1999 WL 787894 (Appellate Brief) BRIEF OF ance, its preamble, its scope and enforce- AMICUS CURIAE FEMINISTS FOR FREE EX- ment, and the comments of the councilmem- PRESSION IN SUPPORT OF RESPONDENT (Sep. bers. These do not depend on the timing of 30, 1999) the ordinance's enactment.
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• 1999 WL 805047 (Appellate Brief) BRIEF AND • 1999 WL 592028 (Appellate Brief) BRIEF OF APPENDIX OF THE FIRST AMENDMENT LAW- MORALITY IN MEDIA, INC. NATIONAL LAW YERS ASSOCIATION AS AMICUS CURIAE IN CENTER FOR CHILDREN AND FAMILIES, AND SUPPORT OF AFFIRIMANCE (Sep. 30, 1999) FAMILY RESEARCH COUNCIL AS AMICI CURIAE IN SUPPORT OF PETITIONERS (Aug. • 1999 WL 809553 (Appellate Brief) RESPOND- 04, 1999) ENT'S BRIEF (Sep. 30, 1999) • 1999 WL 459580 (Appellate Brief) MOTION FOR • 1999 WL 966525 (Appellate Brief) BRIEF OF THE LEAVE TO FILE BRIEF AMICUS CURIAE IN AMERICAN ASSOCIATION FOR NUDE RECRE- SUPPORT OF PETITIONER CITY OF ERIE AND ATION AMICUS CURIAE IN SUPPORT OF THE BRIEF AMICUS CURIAE IN SUPPORT OF PETI- RESPONDENT (Sep. 30, 1999) TIONER CITY OF ERIE OF THE ERIE COUNTY CITIZENS COALITION AGAINST VIOLENT • 1999 WL 975728 (Appellate Brief) BRIEF OF OR- PORNOGRAPHY (Jul. 01, 1999) ANGE COUNTY, FLORIDA, BY THE HONOR- ABLE MEL MARTINEZ, AS COUNTY CHAIR- • 1999 WL 33639507 (Appellate Petition, Motion MAN FOR ORANGE COUNTY, FLORIDA, AS and Filing) Respondent's Brief in Opposition (Apr. AMICUS CURIAE IN SUPPORT OF PETITION- 12, 1999) ERS (Aug. 30, 1999) • 1999 WL 33639521 (Appellate Petition, Motion • 1999 WL 618392 (Appellate Brief) BRIEF FOR and Filing) Motion for Leave to File Brief Amicus PETITIONERS (Aug. 16, 1999) Curiae in Support of Petition for Certiorari and Brief Amicus Curiae in Support of Petition for Writ of Cer- • 1999 WL 627099 (Appellate Brief) MOTION FOR tiorari of the Erie County Citizen's Coalition Against LEAVE TO FILE AMICI CURIAE BRIEF AND Violent Pornography in Support of Petitioner (Feb. BRIEF OF AMERICAN LIBERTIES INSTITUTE, 18, 1999) SEMINOLE COUNTY, FLORIDA, and CALNO IN SUPPORT OF PETITIONER (Aug. 16, 1999) • 1999 WL 33639532 (Appellate Petition, Motion and Filing) Amici Curiae Brief of the Thomas Jeffer- • 1999 WL 631665 (Appellate Brief) Brief of son Center for Protection of Free Expression, Alley Brevard County, Florida, as Amicus Curiae, in sup- Theatre, Association of Performing Arts Presenters, port of the Petitioners (Aug. 16, 1999) Kathleen Chalfant, Dance/USA, Tony Kushner, the • 1999 WL 631666 (Appellate Brief) BRIEF OF Lookingglass Theatre Co., Terrence McNally, Ore- AMICUS CURIAE STATES OF KANSAS, OHIO, gon Shakespe are Company, Yvonne Rainer, Rachel IDAHO, LOUISIANA, MICHIGAN, MISSISSIPPI, Rosenthal, Theater Artaud, Theatre Communications MONTANA, NEBRASKA, SOUTH CAROLINA, Group, and the Walker Art Center In Support of Re- TENNESSEE, TEXAS, UTAH AND THE COM- spondent (1999) MONWEALTHS OF PENNSYLVANIA AND VIR- END OF DOCUMENT GINIA IN SUPPORT OF PETITIONERS (Aug. 16, 1999)
• 1999 WL 33612754 (Joint Appendix) (Aug. 13, 1999)
• 1999 WL 679047 (Appellate Brief) BRIEF OF AMICUS CURIAE NATIONAL FAMILY LEGAL FOUNDATION IN SUPPORT OF THE CITY OF ERIE (Aug. 13, 1999)
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92k90.4(4) Most Cited Cases A zoning ordinance that prohibited adult motion pic- Briefs and Other Related Documents ture theaters from locating within 1,000 feet of any residential zone, single or multiple-family dwelling, Supreme Court of the United States church, park or school was a valid governmental re- CITY OF RENTON, et al., Appellants sponse to the serious problems created by adult theat- v. ers and satisfied the dictates of the First Amendment. PLAYTIME THEATRES, INC., et al. U.S.C.A. Const.Amend. 1. No. 84-1360. [3] Constitutional Law 90.4(4) Argued Nov. 12, 1985. 92k90.4(4) Most Cited Cases Decided Feb. 25, 1986. (Formerly 92k90.1(4)) Rehearing Denied April 21, 1986. The First Amendment does not require a city, before See 475 U.S. 1132, 106 S.Ct. 1663. enacting an adult theater zoning ordinance, to con- Suit was brought challenging the constitutionality of duct new studies or produce evidence independent of a zoning ordinance which prohibited adult motion that already generated by other cities, so long as picture theaters from locating within 1,000 feet of whatever the evidence the city relies upon is reason- any residential zone, single or multiple-family dwell- ably believed to be relevant to the problem that the ing, church, park or school. The United States Dis- city addresses. U.S.C.A. Const.Amend. 1. trict Court for the Western District of Washington [4] Zoning and Planning 76 ruled in favor of the city. The Court of Appeals for 414k76 Most Cited Cases the Ninth Circuit, 748 F.2d 527, reversed and re- Cities may regulate adult theaters by dispersing them manded for reconsideration, and the city appealed. or by effectively concentrating them. The Supreme Court, Justice Rehnquist, held that the *41 Syllabus [FN*] ordinance was a valid governmental response to the FN* The syllabus constitutes no part of the serious problems created by adult theaters and satis- opinion of the Court but has been prepared fied the dictates of the First Amendment. by the Reporter of Decisions for the con- Reversed. venience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 Justice Blackmun concurred in the result. S.Ct. 282, 287, 50 L.Ed. 499. Respondents purchased two theaters in Renton, Justice Brennan filed a dissenting opinion in which Washington, with the intention of exhibiting adult Justice Marshall joined. films and, at about the same time, filed suit in Federal District Court, seeking injunctive relief and a declar- West Headnotes atory judgment that the First and Fourteenth Amend- [1] Constitutional Law 90.4(4) ments were violated by a city ordinance that prohibits 92k90.4(4) Most Cited Cases adult motion picture theaters from locating within City ordinance that prohibited adult motion picture 1,000 feet of any residential zone, single- or multiple- theaters from locating from within 1,000 feet of any family dwelling, church, park, or school. The Dis- residential zone, single or multiple-family dwelling, trict Court ultimately entered summary judgment in church, park or school was properly analyzed as a the city's favor, holding that the ordinance did not vi- form of time, place and manner regulation of speech. olate the First Amendment. The Court of Appeals U.S.C.A. Const.Amend. 1. reversed, holding that the ordinance constituted a substantial restriction on First Amendment interests, [2] Constitutional Law 90.4(4) and remanded the case for reconsideration as to
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whether the city had substantial governmental in- (d) As required by the First Amendment, the ordin- terests to support the ordinance. ance allows for reasonable alternative avenues of communication. Although respondents argue that in Held: The ordinance is a valid governmental re- general there are no "commercially viable" adult sponse to the serious problems created by adult theat- theater sites within the limited area of land left open ers and satisfies the dictates of the First Amendment. for such theaters by the ordinance, the fact that re- Cf. **925 Young v. American Mini Theatres, Inc., spondents must fend for themselves in the real estate 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310. Pp. market, on an equal footing with other prospective 928-933. purchasers and lessees, does not give rise to a viola- tion of the First Amendment, which does not compel (a) Since the ordinance does not ban adult theaters al- the Government to ensure that adult theaters, or any together, it is properly analyzed as a form of time, other kinds of speech-related businesses, will be able place, and manner regulation. "Content-neutral" time, to obtain sites at bargain prices. P. 932. place, and manner regulations are acceptable so long as they are designed to serve a substantial govern- 748 F.2d 527 (CA9 1984), reversed. mental interest and do not unreasonably limit altern- ative avenues of communication. Pp. 928-929. REHNQUIST, J., delivered the opinion of the Court, in which BURGER, C.J., and WHITE, POWELL, (b) The District Court found that the Renton City STEVENS, and O'CONNOR, JJ., joined. BLACK- Council's "predominate" concerns were with the sec- MUN, J., concurred in the result. BRENNAN, J., ondary effects of adult theaters on the surrounding filed a dissenting opinion, in which MARSHALL, J., community, not with the content of adult films them- joined, post, p. ---. selves. This finding is more than adequate to estab- lish that the city's pursuit of its zoning interests was **926 E. Barrett Prettyman, Jr., arguedthe cause for unrelated to the suppression of free expression, and appellants. With him on the briefs were David W. thus the ordinance is a "content-neutral" speech regu- Burgett, Lawrence J. Warren, Daniel Kellogg, Mark lation. Pp. 928-930. E. Barber, and Zanetta L. Fontes.
(c) The Renton ordinance is designed to serve a sub- Jack R. Burns argued the cause for appellees. With stantial governmental interest while allowing for him on the briefs was Robert E. Smith.* reasonable alternative avenues of communication. A city's interest in attempting to preserve the quality of * Briefs of amici curiae urging reversal were filed for urban life, as here, must be accorded high respect. Jackson County, Missouri, by Russell D. Jacobson; Although the ordinance was enacted without the be- for the Freedom Council Foundation by Wendell R. nefit of studies specifically relating to *42 Renton's Bird and Robert K. Skolrood; for the National Insti- particular problems, Renton was entitled to rely on tute of Municipal Law Officers by George Agnost, the experiences of, and studies produced by, the Roy D. Bates, Benjamin L. Brown, J. Lamar Shelley, nearby city of Seattle and other cities. Nor was there John W. Witt, Roger F. Cutler, Robert J. Alfton, any constitutional defect in the method chosen by James K. Baker, Barbara Mather, James D. Mont- Renton to further its substantial interests. Cities may gomery, Clifford D. Pierce, Jr., William H. Taube, regulate adult theaters by dispersing them, or by ef- William I. Thornton, Jr., and Charles S. Rhyne; and fectively concentrating them, as in Renton. for the National League of Cities et al. by Benna Ruth Moreover, the ordinance is not "underinclusive" for Solomon, Joyce Holmes Benjamin, Beate Bloch, and failing to regulate other kinds of adult businesses, Lawrence R. Velvel. since there was no evidence that, at the time the or- Briefs of amici curiae urging affirmance were filed dinance was enacted, any other adult business was for the American Civil Liberties Union et al. by Dav- located in, or was contemplating moving into, id Utevsky, Jack D. Novik, and Burt Neuborne; and Renton. Pp. 930-932. for the American Booksellers Association, Inc., et al.
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by Michael A. Bamberger. appeal is proper under § 1254(2), however, because in any event we have certiorari jur- Eric M. Rubin and Walter E. Diercks filed a brief for isdiction under 28 U.S.C. § 2103. As we the Outdoor Advertising Association of America, have previously done in equivalent situ- Inc., et al. as amici curiae. ations, see El Paso v. Simmons, 379 U.S. 497, 502-503, 85 S.Ct. 577, 580-581, 13 *43 Justice REHNQUIST delivered the opinion of L.Ed.2d 446 (1965); Doran v. Salem Inn, the Court. Inc., 422 U.S. 922, 927, 95 S.Ct. 2561, This case involves a constitutional challenge to a 2565, 45 L.Ed.2d 648 (1975), we dismiss zoning ordinance, enacted by appellant city of the appeal and, treating the papers as a peti- Renton, Washington, that prohibits adult motion pic- tion for certiorari, grant the writ of certior- ture theaters from locating within 1,000 feet of any ari. Henceforth, we shall refer to the parties residential zone, single- or multiple-family dwelling, as "petitioners" and "respondents." church, park, or school. Appellees, Playtime *44 In May 1980, the Mayor of Renton, a city of ap- Theatres, Inc., and Sea-First Properties, Inc., filed an proximately 32,000 people located just south of action in the United States District Court for the Seattle, suggested to the Renton City Council that it Western District of Washington seeking a declaratory consider the advisability of enacting zoning legisla- judgment that the Renton ordinance violated the First tion dealing with adult entertainment uses. No such and Fourteenth Amendments and a permanent injunc- uses existed in the city at that time. Upon the May- tion against its enforcement. The District Court or's suggestion, the City Council referred the matter ruled in favor of Renton and denied the permanent in- to the city's Planning and Development Committee. junction, but the Court of Appeals for the Ninth Cir- The Committee held public hearings, reviewed the cuit reversed and remanded for reconsideration. 748 experiences of Seattle and other cities, and received a F.2d 527 (1984). We noted probable jurisdiction, report from the City Attorney's Office advising as to **927471 U.S. 1013, 105 S.Ct. 2015, 85 L.Ed.2d 297 developments in other cities. The City Council, (1985), and now reverse the judgment of the Ninth meanwhile, adopted Resolution No. 2368, which im- Circuit. [FN1] posed a moratorium on the licensing of "any business FN1. This appeal was taken under 28 U.S.C. ... which ... has as its primary purpose the selling, § 1254(2), which provides this Court with renting or showing of sexually explicit materials." appellate jurisdiction at the behest of a party App. 43. The resolution contained a clause explain- relying on a state statute or local ordinance ing that such businesses "would have a severe impact held unconstitutional by a court of appeals. upon surrounding businesses and residences." Id., at As we have previously noted, there is some 42. question whether jurisdiction under § In April 1981, acting on the basis of the Planning and 1254(2) is available to review a nonfinal Development Committee's recommendation, the City judgment. See South Carolina Electric & Council enacted Ordinance No. 3526. The ordin- Gas Co. v. Flemming, 351 U.S. 901, 76 ance prohibited any "adult motion picture theater" S.Ct. 692, 100 L.Ed. 1439 (1956); Slaker v. from locating within 1,000 feet of any residential O'Connor, 278 U.S. 188, 49 S.Ct. 158, 73 zone, single- or multiple-family dwelling, church, or L.Ed. 258 (1929). But see Chicago v. park, and within one mile of any school. App. to Atchison, T. & S.F. R. Co., 357 U.S. 77, Juris. Statement 79a. The term "adult motion picture 82-83, 78 S.Ct. 1063, 1066-1067, 2 L.Ed.2d theater" was defined as "[a]n enclosed building used 1174 (1958). for presenting motion picture films, video cassettes, The present appeal seeks review of a judg- cable television, or any other such visual media, dis- ment remanding the case to the District tinguished or characteri[zed] by an emphasis on mat- Court. We need not resolve whether this ter depicting, describing or relating to 'specified sexu-
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al activities' or 'specified anatomical areas' ... for ob- *46 The Court of Appeals for the Ninth Circuit re- servation by patrons therein." Id., at 78a. versed. The Court of Appeals first concluded, con- trary to the finding of the District Court, that the *45 In early 1982, respondents acquired two existing Renton ordinance constituted a substantial restriction theaters in downtown Renton, with the intention of on First Amendment interests. Then, using the using them to exhibit feature-length adult films. The standards set forth in United States v. O'Brien, supra, theaters were located within the area proscribed by the Court of Appeals held that Renton had improp- Ordinance No. 3526. At about the same time, re- erly relied on the experiences of other cities in lieu of spondents filed the previously mentioned lawsuit evidence about the effects of adult theaters on challenging the ordinance on First and Fourteenth Renton, that Renton had thus failed to establish ad- Amendment grounds, and seeking declaratory and in- equately the existence of a substantial governmental junctive relief. While the federal action was interest in support of its ordinance, and that in any pending, the City Council amended the ordinance in event Renton's asserted interests had not been shown several respects, adding a statement of reasons for its to be unrelated to the suppression of expression. The enactment and reducing the minimum distance from Court of Appeals remanded the case to the District any school to 1,000 feet. Court for reconsideration of Renton's asserted in- terests. In November 1982, the Federal Magistrate to whom respondents' action had been referred recommended In our view, the resolution of this case is largely dic- the entry of a preliminary injunction against enforce- tated by our decision in Young v. American Mini ment of the Renton ordinance and the denial of Theatres, Inc., supra. There, although five Members Renton's motions to dismiss and for summary judg- of the Court did not agree on a single rationale for the ment. The District Court adopted the Magistrate's decision, we held that the city of Detroit's zoning or- recommendations and entered the preliminary injunc- dinance, which prohibited locating an adult theater tion, and respondents began showing adult films at within 1,000 feet of any two other "regulated uses" or their two theaters in Renton. Shortly thereafter, the within 500 feet of any residential zone, did not viol- parties agreed to submit the case for a final decision ate the First and Fourteenth Amendments. Id., 427 on whether a permanent**928 injunction should is- U.S., at 72-73, 96 S.Ct., at 2453 (plurality opinion of sue on the basis of the record as already developed. STEVENS, J., joined by BURGER, C.J., and WHITE and REHNQUIST, JJ.); id., at 84, 96 S.Ct., at 2459 The District Court then vacated the preliminary in- (POWELL, J., concurring). The Renton ordinance, junction, denied respondents' requested permanent in- like the one in American Mini Theatres, does not ban junction, and entered summary judgment in favor of adult theaters altogether, but merely provides that Renton. The court found that the Renton ordinance such theaters may not be located within 1,000 feet of did not substantially restrict First Amendment in- any residential zone, single- or multiple-family terests, that Renton was not required to show specific dwelling, church, park, or school. The ordinance is adverse impact on Renton from the operation of adult therefore properly analyzed as a form of time, place, theaters but could rely on the experiences of other cit- and manner regulation. Id., at 63, and n. 18, 96 S.Ct., ies, that the purposes of the ordinance were unrelated at 2448 and n. 18; id., at 78-79, 96 S.Ct., at 2456 to the suppression of speech, and that the restrictions (POWELL, J., concurring). on speech imposed by the ordinance were no greater than necessary to further the governmental interests [1] Describing the ordinance as a time, place, and involved. Relying on Young v. American Mini manner regulation is, of course, only the first step in Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 our inquiry. This Court has long held that regula- L.Ed.2d 310 (1976), and United States v. O'Brien, tions enacted for the *47 purpose of restraining 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), speech on the basis of its content presumptively viol- the court held that the Renton ordinance did not viol- ate the First Amendment. See Carey v. Brown, 447 ate the First Amendment. U.S. 455, 462-463, and n. 7, 100 S.Ct. 2286, 2291,
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and n. 7, 65 L.Ed.2d 263 (1980); Police Dept. of cit legislative motive.... Chicago v. Mosley, 408 U.S. 92, 95, 98- 99, 92 S.Ct. 2286, 2289, 2291-2292, 33 L.Ed.2d 212 (1972). On *** the other hand, so-called "content-neutral" time, "... What motivates one legislator to make a speech place, and manner regulations are acceptable so long about a statute is not necessarily what motivates as they are designed to serve a substantial govern- scores of others to enact it, and the stakes are suffi- mental interest and do not unreasonably limit altern- ciently high for us to eschew guesswork." Id., at ative avenues of communication. See Clark v. Com- 383-384, 88 S.Ct., at 1683. munity for Creative Non-Violence, 468 U.S. 288, The District Court's finding as to "predominate" in- 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); tent, left undisturbed by the Court of Appeals, is City Council of Los Angeles v. Taxpayers for Vincent, more than adequate to establish that the city's pursuit 466 U.S. 789, 807, 104 S.Ct. 2118, 2130, 80 L.Ed.2d of its zoning interests here was unrelated to the sup- 772 (1984); Heffron v. International Society for pression of free expression. The ordinance by its Krishna Consciousness, Inc., 452 U.S. 640, 647-648, terms is designed to prevent crime, protect the city's 101 S.Ct. 2559, 2563-2564, 69 L.Ed.2d 298 (1981). retail trade, maintain property values, and generally **929 At first glance, the Renton ordinance, like the "protec[t] and preserv[e] the quality of [the city's] ordinance in American Mini Theatres, does not ap- neighborhoods, commercial districts, and the quality pear to fit neatly into either the "content-based" or the of urban life," not to suppress the expression of un- "content-neutral" category. To be sure, the ordin- popular views. See App. to Juris. Statement 90a. As ance treats theaters that specialize in adult films dif- Justice POWELL observed in American Mini ferently from other kinds of theaters. Nevertheless, Theatres, "[i]f [the city] had been concerned with re- as the District Court concluded, the Renton ordinance stricting the message purveyed by adult theaters, it is aimed not at the content of the films shown at would have tried to close them or restrict their num- "adult motion picture theatres," but rather at the sec- ber rather than circumscribe their choice as to loca- ondary effects of such theaters on the surrounding tion." 427 U.S., at 82, n. 4, 96 S.Ct., at 2458, n. 4. community. The District Court found that the City In short, the Renton ordinance is completely consist- Council's "predominate concerns" were with the sec- ent with our definition of "content-neutral" speech ondary effects of adult theaters, and not with the con- regulations as those that "are justified without refer- tent of adult films themselves. App. to Juris. State- ence to the content of the regulated speech." Virginia ment 31a (emphasis added). But the Court of Ap- Pharmacy Board v. Virginia Citizens Consumer peals, relying on its decision in Tovar v. Billmeyer, Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 721 F.2d 1260, 1266 (CA9 1983), held that this was 1830, 48 L.Ed.2d 346 (1976) (emphasis added); not enough to sustain the ordinance. According to Community for Creative Non-Violence, supra, 468 the Court of Appeals, if "a motivating factor " in en- U.S., at 293, 104 S.Ct., at 3069; International Society acting the ordinance was to restrict respondents' exer- for Krishna Consciousness, supra, 452 U.S., at 648, cise of First Amendment rights the ordinance would 101 S.Ct., at 2564. The ordinance does not contra- be invalid, apparently no matter how small a part this vene the fundamental principle that underlies our motivating factor may have played in the City Coun- concern about "content-based" speech regula- cil's decision. 748 F.2d, at 537 (emphasis in origin- tions: that "government may not grant the use of a al). This view of the law was rejected in United forum to people whose views it finds acceptable, but States v. O'Brien, 391 U.S., at 382- 386, 88 S.Ct., at deny use to those wishing to express *49 less favored 1681-1684, the very case that the Court of Appeals or more controversial views." Mosley, supra, 408 said it was applying: U.S., at 95-96, 92 S.Ct., at 2289-2290. *48 "It is a familiar principle of constitutional law that this Court will not strike down an otherwise It was with this understanding in mind that, in Amer- constitutional statute on the basis of an alleged illi- ican Mini Theatres, a majority of this Court decided
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that, at least with respect to businesses that purvey S.Ct., at 2458, n. 6. sexually explicit materials, [FN2] zoning ordinances designed**930 to combat the undesirable secondary [2] The appropriate inquiry in this case, then, is effects of such businesses are to be reviewed under whether the Renton ordinance is designed to serve a the standards applicable to "content-neutral" time, substantial governmental interest and allows for reas- place, and manner regulations. Justice STEVENS, onable alternative avenues of communication. See writing for the plurality, concluded that the city of Community for Creative Non-Violence, 468 U.S., at Detroit was entitled to draw a distinction between 293, 104 S.Ct., at 3069; International Society for adult theaters and other kinds of theaters "without vi- Krishna Consciousness, 452 U.S., at 649, 654, 101 olating the government's paramount obligation of S.Ct., at 2564, 2567. It is clear that the ordinance neutrality in its regulation of protected communica- meets such a standard. As a majority of this Court tion," 427 U.S., at 70, 96 S.Ct., at 2452, noting that recognized in American Mini Theatres, a city's "in- "[i]t is th [e] secondary effect which these zoning or- terest in attempting to preserve the quality of urban dinances attempt to avoid, not the dissemination of life is one that must be accorded high respect." 427 'offensive' speech," id., at 71, n. 34, 96 S.Ct., at 2453, U.S., at 71, 96 S.Ct., at 2453 (plurality opinion); see n. 34. Justice POWELL, in concurrence, elaborated: id., at 80, 96 S.Ct., at 2457 (POWELL, J., concur- ring) ("Nor is there doubt that the interests furthered FN2. See American Mini Theatres, 427 by this ordinance are both important and substan- U.S., at 70, 96 S.Ct., at 2452 (plurality opin- tial"). Exactly the same vital governmental interests ion) ("[I]t is manifest that society's interest are at stake here. in protecting this type of expression is of a wholly different, and lesser, magnitude than The Court of Appeals ruled, however, that because the interest in untrammeled political debate the Renton ordinance was enacted without the benefit ..."). of studies specifically relating to "the particular prob- lems or needs of Renton," the city's justifications for "[The] dissent misconceives the issue in this case the ordinance were "conclusory and speculative." 748 by insisting that it involves an impermissible time, F.2d, at 537. We think the Court of Appeals im- place, and manner restriction based on the content posed on the city an unnecessarily rigid burden of of expression. It involves nothing of the kind. proof. The record in this case reveals that Renton re- We have here merely a decision by the city to treat lied heavily on the experience of, and studies pro- certain movie theaters differently because they duced by, the city of Seattle. In Seattle, as in have markedly different effects upon their sur- Renton, the adult theater zoning ordinance was aimed roundings.... Moreover, even if this were a case in- at preventing the secondary effects caused by the volving a special governmental response to the presence of even one such theater in a given neigh- content of one type of movie, it is possible that the borhood. See Northend Cinema, Inc. v. Seattle, 90 result would be supported by a line of cases recog- Wash.2d 709, 585 P.2d 1153 (1978). The opinion of nizing that the government can tailor its reaction to the Supreme Court of Washington in Northend different types of speech according to the degree to Cinema, which *51 was before the Renton City which its special and overriding interests are im- Council when it enacted the ordinance in question plicated. *50 See, e.g., Tinker v. Des Moines here, described Seattle's experience as follows: School Dist., 393 U.S. 503, 509-511 [89 S.Ct. 733, "The amendments to the City's zoning code which 737-739, 21 L.Ed.2d 731] (1969); Procunier v. are at issue here are the **931 culmination of a Martinez, 416 U.S. 396, 413-414 [94 S.Ct. 1800, long period of study and discussion of the prob- 1811, 40 L.Ed.2d 224] (1974); Greer v. Spock, 424 lems of adult movie theaters in residential areas of U.S. 828, 842-844 [96 S.Ct. 1211, 1219-1220, 47 the City.... [T]he City's Department of Community L.Ed.2d 505] (1976) (POWELL, J., concurring); Development made a study of the need for zoning cf. CSC v. Letter Carriers, 413 U.S. 548 [93 S.Ct. controls of adult theaters.... The study analyzed the 2880, 37 L.Ed.2d 796] (1973)." Id., at 82, n. 6, 96 City's zoning scheme, comprehensive plan, and
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land uses around existing adult motion picture opinion). Moreover, the Renton ordinance is "nar- theaters...." Id., at 711, 585 P.2d, at 1155. rowly tailored" to affect only that category of theaters "[T]he [trial] court heard extensive testimony re- shown to produce the unwanted secondary effects, garding the history and purpose of these ordin- thus avoiding the flaw that proved fatal to the regula- ances. It heard expert testimony on the adverse ef- tions in Schad v. Mount Ephraim, 452 U.S. 61, 101 fects of the presence of adult motion picture theat- S.Ct. 2176, 68 L.Ed.2d 671 (1981), and Erznoznik v. ers on neighborhood children and community im- City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 provement efforts. The court's detailed findings, L.Ed.2d 125 (1975). which include a finding that the location of adult theaters has a harmful effect on the area and con- Respondents contend that the Renton ordinance is "un- tribute to neighborhood blight, are supported by der-inclusive," in that it fails to regulate other kinds substantial evidence in the record." Id., at 713, 585 of adult businesses that are likely to produce second- P.2d, at 1156. ary effects similar to those produced by adult theat- "The record is replete with testimony regarding the ers. On this record the contention must fail. There effects of adult movie theater locations on residen- is no evidence that, at the time the Renton ordinance tial neighborhoods." Id., at 719, 585 P.2d, at 1159. was enacted, any other adult business was located in, or was contemplating moving into, Renton. In fact, [3] We hold that Renton was entitled to rely on the Resolution No. 2368, enacted in October 1980, states experiences of Seattle and other cities, and in particu- that "the City of Renton does not, at the present time, lar on the "detailed findings" summarized in the have any business whose primary purpose is the sale, Washington Supreme Court's Northend Cinema opin- rental, or showing of sexually explicit materials." ion, in enacting its adult theater zoning ordinance. App. 42. That Renton chose first to address the po- The First Amendment does not require a city, before tential problems created *53 by one particular kind of enacting such an ordinance, to conduct new studies or adult business in no way suggests that the city has produce evidence independent of that already gener- "singled out" adult theaters for discriminatory treat- ated by other cities, so long as whatever evidence the ment. We simply have no basis on **932 this record city relies upon is reasonably believed to be relevant for assuming that Renton will not, in the future, to the *52 problem that the city addresses. That was amend its ordinance to include other kinds of adult the case here. Nor is our holding affected by the fact businesses that have been shown to produce the same that Seattle ultimately chose a different method of kinds of secondary effects as adult theaters. See Wil- adult theater zoning than that chosen by Renton, liamson v. Lee Optical Co., 348 U.S. 483, 488-489, since Seattle's choice of a different remedy to combat 75 S.Ct. 461, 464-465, 99 L.Ed. 563 (1955). the secondary effects of adult theaters does not call into question either Seattle's identification of those Finally, turning to the question whether the Renton secondary effects or the relevance of Seattle's experi- ordinance allows for reasonable alternative avenues ence to Renton. of communication, we note that the ordinance leaves some 520 acres, or more than five percent of the en- [4] We also find no constitutional defect in the meth- tire land area of Renton, open to use as adult theater od chosen by Renton to further its substantial in- sites. The District Court found, and the Court of Ap- terests. Cities may regulate adult theaters by dis- peals did not dispute the finding, that the 520 acres of persing them, as in Detroit, or by effectively concen- land consists of "[a]mple, accessible real estate," in- trating them, as in Renton. "It is not our function to cluding "acreage in all stages of development from appraise the wisdom of [the city's] decision to require raw land to developed, industrial, warehouse, office, adult theaters to be separated rather than concentrated and shopping space that is criss-crossed by freeways, in the same areas.... [T]he city must be allowed a highways, and roads." App. to Juris. Statement 28a. reasonable opportunity to experiment with solutions to admittedly serious problems." American Mini Respondents argue, however, that some of the land in Theatres, 427 U.S., at 71, 96 S.Ct., at 2453 (plurality question is already occupied by existing businesses,
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that "practically none" of the undeveloped land is onable opportunity to open and operate an adult currently for sale or lease, and that in general there theater within the city, and the ordinance before us are no "commercially viable" adult theater sites with- easily meets this requirement. in the 520 acres left open by the Renton ordinance. Brief for Appellees 34-37. The Court of Appeals ac- In sum, we find that the Renton ordinance represents cepted these arguments, [FN3] concluded that *54 a valid governmental response to the "admittedly ser- the 520 acres was not truly "available" land, and ious problems" created by adult theaters. See id., at therefore held that the Renton ordinance "would res- 71, 96 S.Ct., at 2453 (plurality opinion). Renton has ult in a substantial restriction" on speech. 748 F.2d, at not used "the power to zone as a pretext for suppress- 534. ing expression," id., at 84, 96 S.Ct., at 2459 (POWELL, J., concurring), but rather has sought to FN3. The Court of Appeals' rejection of the make some areas available for adult theaters and their District Court's findings on this issue may patrons, while at the same time preserving the quality have stemmed in part from the belief, ex- of life in the community at large by preventing those pressed elsewhere in the Court of Appeals' theaters from locating in other areas. This, after all, opinion, that, under Bose Corp. v. Con- is the essence of zoning. Here, as in American Mini sumers Union of United States, Inc., 466 Theatres, the city has enacted a zoning ordinance that U.S. 485, 104 S.Ct. 1949, 80 L.Ed.2d 502 meets these goals while also satisfying the dictates of (1984), appellate courts have a duty to re- the *55 **933 First Amendment. [FN4] The judg- view de novo all mixed findings of law and ment of the Court of Appeals is therefore fact relevant to the application of First Amendment principles. See 748 F.2d 527, FN4. Respondents argue, as an "alternative 535 (1984). We need not review the cor- basis" for affirming the decision of the Court rectness of the Court of Appeals' interpreta- of Appeals, that the Renton ordinance viol- tion of Bose Corp., since we determine that, ates their rights under the Equal Protection under any standard of review, the District Clause of the Fourteenth Amendment. As Court's findings should not have been dis- should be apparent from our preceding dis- turbed. cussion, respondents can fare no better un- der the Equal Protection Clause than under We disagree with both the reasoning and the conclu- the First Amendment itself. See Young v. sion of the Court of Appeals. That respondents must American Mini Theatres, Inc., 427 U.S., at fend for themselves in the real estate market, on an 63-73, 96 S.Ct., at 2448-2454. equal footing with other prospective purchasers and Respondents also argue that the Renton or- lessees, does not give rise to a First Amendment viol- dinance is unconstitutionally vague. More ation. And although we have cautioned against the particularly, respondents challenge the or- enactment of zoning regulations that have "the effect dinance's application to buildings "used" for of suppressing, or greatly restricting access to, lawful presenting sexually explicit films, where the speech," American Mini Theatres, 427 U.S., at 71, n. term "used" describes "a continuing course 35, 96 S.Ct., at 2453, n. 35 (plurality opinion), we of conduct of exhibiting [sexually explicit have never suggested that the First Amendment com- films] in a manner which appeals to a pruri- pels the Government to ensure that adult theaters, or ent interest." App. to Juris. Statement 96a. any other kinds of speech-related businesses for that We reject respondents' "vagueness" argu- matter, will be able to obtain sites at bargain prices. ment for the same reasons that led us to re- See id., at 78, 96 S.Ct., at 2456 (POWELL, J., con- ject a similar challenge in American Mini curring) ("The inquiry for First Amendment purposes Theatres, supra. There, the Detroit ordin- is not concerned with economic impact"). In our ance applied to theaters "used to present ma- view, the First Amendment requires only that Renton terial distinguished or characterized by an refrain from effectively denying respondents a reas- emphasis on [sexually explicit matter]." Id.,
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at 53, 96 S.Ct., at 2444. We held that "even the fact that the ordinance does not "deny if there may be some uncertainty about the use to those wishing to express less favored effect of the ordinances on other litigants, or more controversial views." Ante, at 929. they are unquestionably applicable to these However, content-based discrimination is respondents." Id., at 58-59, 96 S.Ct., at not rendered "any less odious" because it 2446. We also held that the Detroit ordin- distinguishes "among entire classes of ideas, ance created no "significant deterrent effect" rather than among points of view within a that might justify invocation of the First particular class." Lehman v. City of Shaker Amendment "overbreadth" doctrine. Id., at Heights, 418 U.S. 298, 316, 94 S.Ct. 2714, 59- 61, 96 S.Ct., at 2446-2448. 2724, 41 L.Ed.2d 770 (1974) (BRENNAN, J., dissenting); see also Consolidated Edison Reversed. Co. v. Public Service Comm'n of N.Y., 447 U.S. 530, 537, 100 S.Ct. 2326, 2333, 65 Justice BLACKMUN concurs in the result. L.Ed.2d 319 (1980) ("The First Amend- Justice BRENNAN, with whom Justice MARSHALL ment's hostility to content-based regulation joins, dissenting. extends not only to restrictions on particular viewpoints, but also to prohibition of public Renton's zoning ordinance selectively imposes limita- discussion of an entire topic"). Moreover, tions on the location of a movie theater based exclus- the Court's conclusion that the restrictions ively on the content of the films shown there. The imposed here were viewpoint neutral is pat- constitutionality of the ordinance is therefore not cor- ently flawed. "As a practical matter, the rectly analyzed under standards applied to content- speech suppressed by restrictions such as neutral time, place, and manner restrictions. But those involved [here] will almost invariably even assuming that the ordinance may fairly be char- carry an implicit, if not explicit, message in acterized as content neutral, it is plainly unconstitu- favor of more relaxed sexual mores. Such tional under the standards established by the de- restrictions, in other words, have a potent cisions of this Court. Although the Court's analysis viewpoint-differential impact.... To treat is limited to *56 cases involving "businesses that pur- such restrictions as viewpoint-neutral seems vey sexually explicit materials," ante, at 929, and n. simply to ignore reality." Stone, Restric- 2, and thus does not affect our holdings in cases in- tions of Speech Because of its Content: The volving state regulation of other kinds of speech, I Peculiar Case of Subject-Matter Restric- dissent. tions, 46 U.Chi.L.Rev. 81, 111-112 (1978).
I The fact that adult movie theaters may cause harmful "[A] constitutionally permissible time, place, or man- "secondary" land-use effects may arguably give ner restriction may not be based upon either the con- Renton a compelling **934 reason to regulate such tent or subject matter of speech." Consolidated Edis- establishments; it does not mean, however, that such on Co. v. Public Service Comm'n of N.Y., 447 U.S. regulations are content neutral. *57 Because the or- 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 dinance imposes special restrictions on certain kinds (1980). The Court asserts that the ordinance is of speech on the basis of content, I cannot simply ac- "aimed not at the content of the films shown at 'adult cept, as the Court does, Renton's claim that the ordin- motion picture theatres,' but rather at the secondary ance was not designed to suppress the content of effects of such theaters on the surrounding com- adult movies. "[W]hen regulation is based on the con- munity," ante, at 929 (emphasis in original), and thus tent of speech, governmental action must be scrutin- is simply a time, place, and manner regulation. [FN1] ized more carefully to ensure that communication has This analysis is misguided. not been prohibited 'merely because public officials disapprove the speaker's views.' " Consolidated Edis- FN1. The Court apparently finds comfort in
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on Co., supra, at 536, 100 S.Ct., at 2332 (quoting movie theaters were located in, or consider- Niemotko v. Maryland, 340 U.S. 268, 282, 71 S.Ct. ing moving to, Renton. Thus, there was no 325, 333, 95 L.Ed. 267 (1951) (Frankfurter, J., con- legitimate reason for the city to treat adult curring in result)). "[B]efore deferring to [Renton's] movie theaters differently from other adult judgment, [we] must be convinced that the city is ser- businesses. iously and comprehensively addressing" secondary- land use effects associated with adult movie theaters. "This Court frequently has upheld underinclusive Metromedia, Inc. v. San Diego, 453 U.S. 490, 531, classifications on the sound theory that a legislature 101 S.Ct. 2882, 2904, 69 L.Ed.2d 800 (1981) may deal with one part of a problem without ad- (BRENNAN, J., concurring in judgment). In this dressing all of it. See e.g., Williamson v. Lee Op- case, both the language of the ordinance and its dubi- tical Co., 348 U.S. 483, 488-489, 75 S.Ct. 461, ous legislative history belie the Court's conclusion 464-465, 99 L.Ed. 563 (1955). This presumption that "the city's pursuit of its zoning interests here was of statutory validity, however, has less force when unrelated to the suppression of free a classification turns on the subject matter of ex- expression." Ante, at 929. pression. '[A]bove all else, the First Amendment means that government has no power to restrict ex- A pression because of its message, its ideas, its sub- The ordinance discriminates on its face against cer- ject matter, or its content.' Police Dept. of Chicago tain forms of speech based on content. Movie theat- v. Mosley, 408 U.S., at 95 [92 S.Ct., at 2290]." ers specializing in "adult motion pictures" may not be Erznoznik v. City of Jacksonville, 422 U.S. 205, located within 1,000 feet of any residential zone, 215, 95 S.Ct. 2268, 2275, 45 L.Ed.2d 125 (1975). single- or multiple-family dwelling, church, park, or school. Other motion picture theaters, and other In this case, the city has not justified treating adult forms of "adult entertainment," such as bars, massage movie theaters differently from other adult entertain- parlors, and adult bookstores, are not subject to the ment businesses. The ordinance's underinclusive- same restrictions. This selective treatment strongly ness is cogent evidence that it was aimed at the con- suggests that Renton was interested not in controlling tent of the films shown in adult movie theaters. the "secondary effects" associated with adult busi- **935 B nesses, but in discriminating against adult theaters Shortly after this lawsuit commenced, the Renton based on the content of the films they exhibit. The City Council amended the ordinance, adding a provi- Court ignores this discriminatory treatment, declaring sion explaining that its intention in adopting the or- that Renton is free "to address the potential problems dinance had been "to promote the City of Renton's created by one particular kind of adult business," great interest in protecting and preserving the quality ante, at 931, and to amend the ordinance in the *58 of its neighborhoods, commercial districts, and the future to include other adult enterprises. Ante, at 932 quality of urban life through effective land *59 use (citing Williamson v. Lee Optical Co., 348 U.S. 483, planning." App. to Juris. Statement 81a. The 488-489, 75 S.Ct. 461, 464-465, 99 L.Ed. 563 amended ordinance also lists certain conclusory "find- (1955)). [FN2] However, because of the First ings" concerning adult entertainment land uses that Amendment interests at stake here, this one- the Council purportedly relied upon in adopting the step-at-a-time analysis is wholly inappropriate. ordinance. Id., at 81a-86 a. The city points to these FN2. The Court also explains that "[t]here is provisions as evidence that the ordinance was de- no evidence that, at the time the Renton or- signed to control the secondary effects associated dinance was enacted, any other adult busi- with adult movie theaters, rather than to suppress the ness was located in, or was contemplating content of the films they exhibit. However, the "le- moving into, Renton." Ante, at 931. gislative history" of the ordinance strongly suggests However, at the time the ordinance was en- otherwise. acted, there was no evidence that any adult
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Prior to the amendment, there was no indication that 2176, 2187, 68 L.Ed.2d 671 (1981) (BLACKMUN, the ordinance was designed to address any "second- J., concurring). As the Court of Appeals concluded, ary effects" a single adult theater might create. In "[t]he record presented by Renton to support its as- addition to the suspiciously coincidental timing of the serted interest in enacting the zoning ordinance is amendment, many of the City Council's "findings" do very thin." 748 F.2d, at 536. not relate to legitimate land-use concerns. As the Court of Appeals observed, "[b]oth the magistrate FN4. For example, "finding" number 12 and the district court recognized that many of the states that "[l]ocation of adult entertainment stated reasons for the ordinance were no more than land uses in proximity to residential uses, expressions of dislike for the subject matter." 748 churches, parks and other public facilities, F.2d 527, 537 (CA9 1984). [FN3] That some resid- and schools, may lead to increased levels of ents may be offended by the content of the films criminal activities, including prostitution, shown at adult movie theaters cannot form the basis rape, incest and assaults in the vicinity of for state regulation of speech. See Terminiello v. such adult entertainment land uses." Id., at Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 83a. (1949). The amended ordinance states that its "findings" FN3. For example, "finding" number 2 summarize testimony received by the City Council at states that certain public hearings. While none of this testi- "[l]ocation of adult entertainment land uses mony was ever recorded or preserved, a city official on the main commercial thoroughfares of reported that residents had objected to having adult the City gives an impression of legitimacy movie theaters located in their community. to, and causes a loss of sensitivity to the ad- However, the official was unable to recount any testi- verse effect of pornography upon children, mony as to how adult movie theaters would specific- established family relations, respect for mar- ally affect the schools, churches, parks, or residences ital relationship and for the sanctity of mar- "protected" by the ordinance. See App. 190-192. riage relations of others, and the concept of The City Council conducted no studies, and heard no non-aggressive, consensual sexual rela- expert testimony, on how the protected uses would be tions." App. to Juris. Statement 86a. affected by the presence of an adult movie theater, "Finding" number 6 states that and never considered whether residents' concerns "[l]ocation of adult land uses in close prox- could be met by "restrictions **936 that are less in- imity to residential uses, churches, parks, trusive on protected forms of expression." Schad, and other public facilities, and schools, will supra, 452 U.S., at 74, 101 S.Ct., at 2186. As a res- cause a degradation of the community stand- ult, any "findings" regarding "secondary effects" ard of morality. Pornographic material has caused by adult movie theaters, or the need to adopt a degrading effect upon the relationship specific locational requirements to combat such ef- between spouses." Ibid. fects, were not "findings" at all, but purely speculat- ive conclusions. Such "findings" were not such as Some of the "findings" added by the City Council do are required to justify the burdens *61 the ordinance relate to supposed "secondary effects" associated imposed upon constitutionally protected expression. with adult movie *60 theaters. [FN4] However, the Court cannot, as it does, merely accept these post hoc The Court holds that Renton was entitled to rely on statements at face value. "[T]he presumption of valid- the experiences of cities like Detroit and Seattle, ity that traditionally attends a local government's ex- which had enacted special zoning regulations for ercise of its zoning powers carries little, if any, adult entertainment businesses after studying the ad- weight where the zoning regulation trenches on rights verse effects caused by such establishments. of expression protected under the First Amendment." However, even assuming that Renton was concerned Schad v. Mount Ephraim, 452 U.S. 61, 77, 101 S.Ct. with the same problems as Seattle and Detroit, it nev-
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er actually reviewed any of the studies conducted by centrate the theaters in one place so that the those cities. Renton had no basis for determining if whole city would not bear the effects of any of the "findings" made by these cities were relev- them. The Renton Ordinance is allegedly ant to Renton's problems or needs. [FN5] Moreover, aimed at protecting certain uses--schools, since Renton ultimately adopted zoning regulations parks, churches and residential areas--from different from either Detroit or Seattle, these "stud- the perceived unfavorable effects of an adult ies" provide no basis for assessing the effectiveness theater." 748 F.2d, at 536 (emphasis in ori- of the particular restrictions adopted under the ordin- ginal). ance. [FN6] Renton cannot merely rely on the general experiencesof *62 Seattle or Detroit, for it must "justi- In sum, the circumstances here strongly suggest that fy its ordinance in the context of Renton's problems- the ordinance was designed to suppress expression, -not Seattle's or Detroit's problems." 748 F.2d, at 536 even that constitutionally protected, and thus was not (emphasis in original). to be analyzed as a content-neutral time, place, and manner restriction. The Court allows Renton to con- FN5. As part of the amendment passed after ceal its illicit motives, however, by reliance on the this lawsuit commenced, the City Council fact that other communities adopted similar restric- added a statement that it had intended to rely tions. The Court's approach largely immunizes such on the Washington Supreme Court's opinion measures from judicial scrutiny, since a municipality in Northend Cinema, Inc. v. Seattle, 90 can readily find other municipal ordinances to rely Wash.2d 709, 585 P.2d 1153 (1978), cert. upon, thus always retrospectively justifying special denied sub nom. Apple Theatre, Inc. v. zoning regulations for adult theaters. [FN7] Rather Seattle, 441 U.S. 946, 99 S.Ct. 2166, 60 than speculate about Renton's motives for adopting L.Ed.2d 1048 (1979), which upheld Seattle's such measures, our cases require the conclusion that zoning regulations against constitutional at- the ordinance, like any other content-based restriction tack. Again, despite the suspicious coincid- on speech, is constitutional "only if the [city] can ental timing of the amendment, the Court show **937 that [it] is a precisely drawn means of holds that "Renton was entitled to rely ... on serving a compelling [governmental] interest." Con- the 'detailed findings' summarized in the ... solidated Edison Co. v. Public Service Comm'n of Northend Cinema opinion." Ante, at 931. In N.Y., 447 U.S., at 540, 100 S.Ct., at 2334; see also Northend Cinema, the court noted that "[t]he Carey v. Brown, 447 U.S. 455, 461-462, 100 S.Ct. record is replete with testimony regarding 2286, 2290-2291, 65 L.Ed.2d 263 (1980); Police De- the effects of adult movie theater locations partment of Chicago v. Mosley, 408 U.S. 92, 99, 92 on residential neighborhoods." 90 Wash.2d, S.Ct. 2286, 2292, 33 L.Ed.2d 212 (1972). Only this at 719, 585 P.2d, at 1159. The opinion strict approach can insure that cities will not use their however, does not explain the evidence it zoning powers as a pretext for suppressing constitu- purports to summarize, and provides no tionally protected expression. basis for determining whether Seattle's ex- perience is relevant to Renton's. FN7. As one commentator has noted: "[A]nyone with any knowledge of human FN6. As the Court of Appeals observed: nature should naturally assume that the de- "Although the Renton ordinance purports to cision to adopt almost any content-based re- copy Detroit's and Seattle's, it does not solve striction might have been affected by an an- the same problem in the same manner. The tipathy on the part of at least some legislat- Detroit ordinance was intended to disperse ors to the ideas or information being sup- adult theaters throughout the city so that no pressed. The logical assumption, in other one district would deteriorate due to a con- words, is not that there is not improper mo- centration of such theaters. The Seattle or- tivation but, rather, because legislators are dinance, by contrast, was intended to con- only human, that there is a substantial risk
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that an impermissible consideration has in from *64 the Detroit zoning ordinance upheld in fact colored the deliberative process." Stone, Young v. American Mini Theatres, Inc., 427 U.S. 50, supra n. 1, at 106. 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). The Detroit ordinance, which was designed to disperse adult *63 Applying this standard to the facts of this case, theaters throughout the city, was supported by the the ordinance is patently unconstitutional. Renton testimony of urban planners and real estate experts has not shown that locating adult movie theaters in regarding the adverse effects of locating several such proximity to its churches, schools, parks, and resid- businesses in the same neighborhood. Id., at 55, 96 ences will necessarily result in undesirable "second- S.Ct., at 2445; see also Northend Cinema, Inc. v. ary effects," or that these problems could not be ef- Seattle, 90 Wash.2d 709, 711, 585 P.2d 1153, fectively addressed by less intrusive restrictions. 1154-1155 (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, 441 U.S. 946, 99 S.Ct. 2166, II 60 L.Ed.2d 1048 (1979) (Seattle zoning ordinance Even assuming that the ordinance should be treated was the "culmination of a long period of study and like a content-neutral time, place, and manner restric- discussion"). Here, the Renton Council was aware tion, I would still find it unconstitutional. only that some residents had complained about adult "[R]estrictions of this kind are valid provided ... that movie theaters, and that other localities had adopted they are narrowly tailored to serve a significant gov- special zoning restrictions for such establishments. ernmental interest, and that they leave open ample al- These are not "facts" sufficient to justify the burdens ternative channels for communication of the informa- the ordinance imposed upon constitutionally protec- tion." Clark v. Community for Creative Non-Vi- ted expression. olence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984); Heffron v. International Society B for Krishna Consciousness, Inc., 452 U.S. 640, 648, Finally, the ordinance is invalid because it does not 101 S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). In ap- provide for reasonable alternative avenues of com- plying this standard, the Court "fails to subject the al- munication. The District Court found that the ordin- leged interests of the [city] to the degree of scrutiny ance left 520 acres in Renton available for adult required to ensure that expressive activity protected theater sites, an area comprising about five **938 by the First Amendment remains free of unnecessary percent of the city. However, the Court of Appeals limitations." Community for Creative Non-Violence, found that because much of this land was already oc- 468 U.S., at 301, 104 S.Ct., at 3073 (MARSHALL, cupied, "[l]imiting adult theater uses to these areas is J., dissenting). The Court "evidently [and wrongly] a substantial restriction on speech." 748 F.2d, at assumes that the balance struck by [Renton] officials 534. Many "available" sites are also largely unsuited is deserving of deference so long as it does not ap- for use by movie theaters. See App. 231, 241. pear to be tainted by content discrimination." Id., at Again, these facts serve to distinguish this case from 315, 104 S.Ct., at 3080. Under a proper application American Mini Theaters, where there was no indica- of the relevant standards, the ordinance is clearly un- tion that the Detroit zoning ordinance seriously lim- constitutional. ited the locations available for adult businesses. See American Mini Theaters, supra, 427 U.S., at 71, n. A 35, 96 S.Ct., at 2453 n. 35 (plurality opinion) ("The The Court finds that the ordinance was designed to situation would be quite different if the ordinance had further Renton's substantial interest in "preserv[ing] the effect of ... greatly restricting access to ... lawful the quality of urban life." Ante, at 930. As explained speech"); see also Basiardanes v. City of Galveston, above, the record here is simply insufficient to sup- 682 F.2d 1203, 1214 (CA5 1982) (ordinance effect- port this assertion. The city made no showing as to ively banned adult theaters *65 by restricting them to how uses "protected" by the ordinance would be af- " 'the most unattractive, inaccessible, and inconveni- fected by the presence of an adult movie theater. ent areas of a city' "); Purple Onion, Inc. v. Jackson, Thus, the Renton ordinance is clearly distinguishable
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511 F.Supp. 1207, 1217 (ND Ga.1981) (proposed Foundation, as Amici Curiae, in Support of Appellees sites for adult entertainment uses were either "unavail- (Aug. 15, 1985) able, unusable, or so inaccessible to the public that ... they amount to no locations"). • 1985 WL 669614 (Appellate Brief) Brief of the American Civil Liberties Union and the American Despite the evidence in the record, the Court reasons Civil Liberties Union of Washington as Amici Curiae that the fact "[t]hat respondents must fend for them- in Support of Appellees (Aug. 15, 1985) selves in the real estate market, on an equal footing with other prospective purchasers and lessees, does • 1985 WL 669597 (Appellate Brief) Brief of Ap- not give rise to a First Amendment violation." Ante, pellees (Aug. 14, 1985) at 932. However, respondents are not on equal foot- • 1985 WL 669612 (Appellate Brief) Brief of the ing with other prospective purchasers and lessees, but Outdoor Advertising Association of America, Inc. must conduct business under severe restrictions not and the American Advertising Federation as Amici imposed upon other establishments. The Court also Curiae in Support of Appellees (Jul. 15, 1985) argues that the First Amendment does not compel "the government to ensure that adult theaters, or any • 1985 WL 669611 (Appellate Brief) Brief of the other kinds of speech-related businesses for that mat- Freedom Council Foundation Amicus Curiae, in Sup- ter, will be able to obtain sites at bargain port of Appellants (Jul. 03, 1985) prices." Ibid. However, respondents do not ask Renton to guarantee low-price sites for their busi- • 1985 WL 669595 (Appellate Brief) Brief for Appel- nesses, but seek only a reasonable opportunity to op- lants (Jun. 28, 1985) erate adult theaters in the city. By denying them this opportunity, Renton can effectively ban a form of • 1985 WL 669608 (Appellate Brief) Motion to File protected speech from its borders. The ordinance Brief Amicus Curiae and Brief Amicus Curiae of the "greatly restrict[s] access to ... lawful speech," Amer- National League of Cities, the National Association ican Mini Theatres, supra, 427 U.S., at 71, n. 35, 96 of Counties, the International City Management As- S.Ct., at 2453, n. 35 (plurality opinion), and is plainly sociation, the United States Conference of Mayors, unconstitutional. the Council of State Governments , and the American Planning Association in Support of Appellants (Jun. 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29, 54 USLW 28, 1985) 4160, 12 Media L. Rep. 1721 • 1985 WL 669609 (Appellate Brief) Brief Amicus Briefs and Other Related Documents (Back to top) Curiae of Jackson County, Missouri, in Support of the Petitioners (Jun. 28, 1985) • 1985 WL 669603 (Appellate Brief) Second Supple- mental Brief of Appellees (Nov. 06, 1985) • 1985 WL 669610 (Appellate Brief) Motion for Leave to File, and Brief Amicus Curiae of the Na- • 1985 WL 669601 (Appellate Brief) Supplemental tional Institute of Municipal Law Officers (Jun. 28, Brief of Appellees (Oct. 30, 1985) 1985)
• 1985 WL 669599 (Appellate Brief) Reply Brief of • 1985 WL 669605 (Appellate Brief) Brief of Amici Appellants (Oct. 25, 1985) Curiae City of Whittier, California and Other Joining California Cities in Support of Appellants' Jurisdic- • 1985 WL 669613 (Appellate Brief) Brief of Amer- tional Statement (Mar. 29, 1985) ican Booksellers Association, Inc., Association of American Publishers, Inc., Council for Periodical • 1985 WL 669607 (Appellate Brief) Motion to File Distributors Associations, International Periodical Brief Amicus Curiae and Brief Amicus Curiae of the Distributors Association, Inc., National Association National League of Cities, the National Association of College Stores, Inc., and th e Freedom to Read of Counties, the International City Management As-
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sociation, the United States Conference of Mayors, the Council of State Governments , and the American Planning Association in Support of a Plenary Hearing and Reversal of the Decision Below (Mar. 29, 1985)
• 1985 WL 669592 (Appellate Brief) Reply Brief (Mar. 28, 1985)
• 1985 WL 669604 (Appellate Brief) Brief of Amici Curiae Washington and Utah Attorneys General in Support of Appellants (Mar. 28, 1985)
END OF DOCUMENT
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Mr. Justice Blackmun joined.
Briefs and Other Related Documents Mr. Justice Blackmun dissented and filed opinion in which Mr. Justice Brennan, Mr. Justice Stewart and Supreme Court of the United States Mr. Justice Marshall joined. Coleman A. YOUNG, Mayor the City of Detroit, et al., Petitioners, West Headnotes v. AMERICAN MINI THEATRES, INC., et al. [1] Municipal Corporations 121 No. 75-312. 268k121 Most Cited Cases Where theaters proposed to offer adult fare on regular Argued March 24, 1976. basis and alleged that they admitted only adult pat- Decided June 24, 1976. rons, and neither indicated any plan to exhibit pic- Rehearing Denied Oct. 4, 1976. tures even arguably outside coverage of municipal or- dinances, so that theaters were not affected by alleged See 429 U.S. 873, 97 S.Ct. 191. vagueness, their challenge to ordinances on ground of The operator of an "adult" movie theater appealed alleged vagueness resulting in inadequate notice of from a ruling of the United States District Court for what was prohibited would not be considered though the Eastern District of Michigan, Southern Division, ordinances affected communication protected by First 373 F.Supp. 363, upholding the validity of Detroit or- Amendment. U.S.C.A.Const. Amends. 1, 14. dinances prohibiting operation of any "adult" movie theater, bookstore and similar establishments within [2] Constitutional Law 42(1) 1000 feet of any other such establishment, or within 92k42(1) Most Cited Cases 500 feet of a residential area. The Court of Appeals, Where very existence of statute may cause persons Sixth Circuit, reversed, 518 F.2d 1014. Following not before court to refrain from engaging in constitu- grant of certiorari, the Supreme Court, Mr. Justice tionally protected speech or expression, exception, in Stevens, held that where theaters proposed to offer allowing litigant to assert rights of third parties, is adult fare on regular basis and alleged that they ad- justified by overriding importance of maintaining mitted only adult patrons, and neither indicated any free and open market for interchange of ideas, but if plan to exhibit pictures even arguably outside cover- deterrent effect of statute on legitimate expression is age of the ordinances, so that theaters were not af- not both real and substantial and if statute is readily fected by alleged vagueness, their challenge to ordin- subject to narrowing construction by state courts, lit- ances on ground of alleged vagueness resulting in in- igant is not permitted to assert rights of third parties. adequate notice of what was prohibited would not be U.S.C.A.Const. Amends. 1, 14. considered though ordinances affected communica- tion protected by First Amendment. The ordinances [3] Constitutional Law 46(1) were not violative of First Amendment rights or of 92k46(1) Most Cited Cases the equal protection clause of the Fourteenth Amend- There being less vital interest in uninhibited exhibi- ment. tion of material on borderline between pornography and artistic expression than in free dissemination of Judgment of Court of Appeals reversed. ideas of social and political significance, and where limited amount of uncertainty in ordinances was eas- Mr. Justice Powell filed an opinion concurring in ily susceptible of narrowing construction, case was part. inappropriate one in which to adjudicate hypothetical claims of persons not before the court. Mr. Justice Stewart dissented and filed opinion in U.S.C.A.Const. Amends. 1, 14. which Mr. Justice Brennan, Mr. Justice Marshall and
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[4] Zoning and Planning 76 [10] Constitutional Law 90.2 414k76 Most Cited Cases 92k90.2 Most Cited Cases Municipality may control location of theaters as well (Formerly 92k90.1(1)) as location of other commercial establishments, either Measure of constitutional protection to be afforded by confining them to certain specified commercial commercial speech will surely be governed largely zones or by requiring that they be dispersed by content of communication; difference between throughout the city. U.S.C.A.Const. Amend. 1. commercial price and product advertising and ideolo- gical communication permits regulation of former [5] Constitutional Law 90.1(4) that First Amendment would not tolerate with respect 92k90.1(4) Most Cited Cases to latter. (Per Mr. Justice Stevens with three Justices Mere fact that commercial exploitation of material concurring.) U.S.C.A.Const. Amends. 1, 14. protected by First Amendment was subjected to zon- ing and other licensing requirements was not suffi- [11] Constitutional Law 90.4(4) cient reason for invalidating city ordinances as prior 92k90.4(4) Most Cited Cases restraints on free speech. U.S.C.A.Const. Amend. 1. (Formerly 92k90.1(6)) First Amendment protects communication, in area of [6] Constitutional Law 90(3) motion picture films of sexual activities, from total 92k90(3) Most Cited Cases suppression, but state may legitimately use contents (Formerly 92k90.1(1)) of these materials as basis for placing them in differ- Reasonable regulations of time, place and manner of ent classification from other motion pictures. (Per protected speech, where those regulations are neces- Mr. Justice Stevens with three Justices concurring.) sary to further significant governmental interests, are U.S.C.A.Const. Amends. 1, 14. permitted by First Amendment. U.S.C.A.Const. Amend. 1. [12] Municipal Corporations 589 268k589 Most Cited Cases [7] Constitutional Law 90(3) City must be allowed reasonable opportunity to ex- 92k90(3) Most Cited Cases periment with solutions to admittedly serious prob- Question whether speech is, or is not, protected by lems. (Per Mr. Justice Stevens with three Justices First Amendment often depends on content of concurring.) U.S.C.A.Const. Amends. 1, 14. speech. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amend. 1. [13] Constitutional Law 228.2 92k228.2 Most Cited Cases [8] Constitutional Law 90(3) In view of serious problems to which city's ordin- 92k90(3) Most Cited Cases ances were addressed, in view of district court's find- Even within area of protected speech, difference in ing that burden on First Amendment rights from en- content may require a different governmental re- forcement of ordinances would be slight, and in view sponse. (Per Mr. Justice Stevens with three Justices of factual basis, disclosed by record, for common concurring.) U.S.C.A.Const. Amends. 1, 14. council's conclusion that restriction imposed would have desired effect, city's interest in present and fu- [9] Constitutional Law 90(3) ture character of its neighborhoods supported its clas- 92k90(3) Most Cited Cases sification of motion pictures, and, accordingly, zon- General rule prohibits regulation based on content of ing ordinances providing that adult motion picture protected communication, and essence of rule is need theaters not be located within 1000 feet of two other for absolute neutrality by government; its regulation regulated uses or within 500 feet of a residential area of communication may not be affected by sympathy did not violate equal protection clause of Fourteenth or hostility for point of view being expressed by com- Amendment. (Per Mr. Justice Stevens with three municator. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amends. 1, 14. Justices concurring.) U.S.C.A.Const. Amends. 1, 14. **2442 Syllabus [FN*]
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FN* The syllabus constitutes no part of the ground for claiming or anticipating any waiver of the opinion of the Court but has been prepared 1,000-foot restriction. P. 2446. by the Reporter of Decisions for the con- venience of the reader. See United States v. *51 (b) T ordinances will have no demonstrably sig- Detroit Timber & Lumber Co., 200 U.S. nificant effect on the exhibition of films protected by 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. the First Amendment. To the extent that any area of *50 Respondent operators of two adult motion pic- doubt exists as to the amount of sexually explicit ture theaters brought this action against petitioner city activity that may be portrayed before material can be officials for injunctive relief and a declaratory judg- said to be "characterized by an emphasis" on such ment of unconstitutionality regarding two 1972 De- matter, there is no reason why the ordinances are not troit zoning ordinances that amended an "Anti-Skid "readily subject to a narrowing construction by the Row Ordinance" adopted 10 years earlier. The 1972 state courts." This would therefore be an inappropri- ordinances provide that an adult theater may not ate case to apply the principle urged by respondents (apart from a special waiver) be located within 1,000 that they be permitted to challenge the ordinances, feet of any two other "regulated uses" or within 500 not because their own rights of free expression are vi- feet of a residential area. The term "regulated uses" olated, but because of the assumption that the ordin- applies to 10 different kinds of establishments in ad- ances' very existence may cause others not before the dition to adult theaters, including adult book stores, court to refrain from constitutionally protected cabarets, bars, taxi dance halls, and hotels. If the speech or expression. Pp. 2446-2448. theater is used to present "material distinguished or 2. The ordinances are not invalid under the First characterized by an emphasis on matter depicting . . . Amendment as prior restraints on protected commu- 'Specified Sexual Activities' or 'Specified Anatomical nication because of the licensing or zoning require- Areas' " it is an "adult" establishment. The District ments. Though adult films may be exhibited commer- Court upheld the ordinances, and granted petitioners' cially only in licensed theaters, that is also true of all motion for summary judgment. The Court of Appeals films. That the place where films may be exhibited is **2443 reversed, holding that the ordinances consti- regulated does not violate free expression, the city's tuted a prior restraint on constitutionally protected interest in planning and regulating the use of property communication and violated equal protection. Re- for commercial purposes being clearly adequate to spondents, in addition to asserting the correctness of support the locational restriction. P. 2448. that court's ruling with respect to those constitutional issues, contend that the ordinances are void for 518 F.2d 1014, reversed. vagueness. While not attacking the specificity of the definitions of sexual activities or anatomical areas, Maureen P. Reilly, Detroit, Mich., for petitioners. respondents maintain (1) that they cannot determine how much of the described activity may be permiss- Stephen M. Taylor, Detroit, Mich., and John H. We- ible before an exhibition is "characterized by an em- ston for respondents. phasis" on such matter, and (2) that the ordinances do *52 Mr. Justice STEVENS delivered the opinion of not specify adequate procedures or standards for ob- the Court. [FN**] taining a waiver of the 1,000-foot restriction. Held: FN** Part III of this opinion is joined by 1. The ordinances as applied to these respondents do only THE CHIEF JUSTICE, Mr. Justice not violate the Due Process Clause of the Fourteenth WHITE, and Mr. Justice REHNQUIST. Amendment on the ground of vagueness. Pp. 2446-2448. Zoning ordinances adopted by the city of Detroit dif- ferentiate between motion picture theaters which ex- (a) Neither of the asserted elements of vagueness has hibit sexually explicit "adult" movies and those affected these respondents, both of which propose to which do not. The principal question presented by offer adult fare on a regular basis and allege no
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this case is whether that statutory classification is un- present "material distinguished or characterized by an constitutional because it is based on the content of emphasis on matter depicting, describing or relating communication protected by the First Amendment. to 'Specified Sexual Activities' or 'Specified Anatom- [FN1] ical Areas,' " [FN4] it is an adult establishment. [FN5] FN1. "Congress shall make no law . . . abridging the freedom of speech, or of the FN4. These terms are defined as follows: press . . . ." This Amendment is made ap- "For the purpose of this Section, 'Specified plicable to the States by the Due Process Sexual Activities' is defined as: Clause of the Fourteenth Amendment. Ed- "1. Human Genitals in a state of sexual stim- wards v. South Carolina, 372 U.S. 229, 83 ulation or arousal; S.Ct. 680, 9 L.Ed.2d 697. "2. Acts of human masturbation, sexual in- tercourse or sodomy; Effective November 2, 1972, Detroit adopted the or- "3. Fondling or other erotic touching of hu- dinances challenged in this litigation. Instead of con- man genitals, pubic region, buttock or fe- centrating "adult" theaters in limited zones, these or- male breast. dinances require that such theaters be dispersed. Spe- "And 'Specified Anatomical Areas' is cifically, an adult theater may not be located within defined as: "1. Less than completely and 1,000 feet of any two other **2444 "regulated uses" opaquely covered: (a) human genitals, pubic or within 500 feet of a residential area. [FN2] The region, (b) buttock, and (c) female breast be- term "regulated uses" includes 10 different kinds of low a point immediately above the top of the establishments in addition to adult theaters. [FN3] areola; and "2. Human male genitals in a discernibly FN2. The District Court held that the origin- turgid state, even if completely and al form of the 500-foot restriction was inval- opaquely covered." id because it was measured from "any build- ing containing a residential, dwelling or FN5. There are three types of adult estab- rooming unit." The city did not appeal from lishments bookstores, motion picture theat- that ruling, but adopted an amendment pro- ers, and mini motion picture theaters defined hibiting the operation of an adult theater respectively as follows: within 500 feet of any area zoned for resid- "Adult Book Store ential use. The amended restriction is not "An establishment having as a substantial or directly challenged in this litigation. significant portion of its stock in trade, books, magazines, and other periodicals FN3. In addition to adult motion picture which are distinguished or characterized by theaters and "mini" theaters, which contain their emphasis on matter depicting, describ- less than 50 seats, the regulated uses include ing or relating to 'Specified Sexual Activit- adult bookstores; cabarets (group "D"); es- ies' or 'Specified Anatomical Areas,' (as tablishments for the sale of beer or intoxicat- defined below), or an establishment with a ing liquor for consumption on the premises; segment or section devoted to the sale or hotels or motels; pawnshops; pool or billiard display of such material. halls; public lodging houses; secondhand "Adult Motion Picture Theater stores; shoeshine parlors; and taxi dance "An enclosed building with a capacity of 50 halls. or more persons used for presenting material *53 The classification of a theater as "adult" is ex- distinguished or characterized by an em- pressly predicated on the character of the motion pic- phasis on matter depicting, describing or re- tures which it exhibits. If the theater is used to lating to 'Specified Sexual Activities' or 'Spe- cified Anatomical Areas,' (as defined below)
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for observation by patrons therein. more than two such uses within one thou- "Adult Mini Motion Picture Theater sand feet of each other which would create "An enclosed building with a capacity for such adverse effects)." less than 50 persons used for presenting ma- terial distinguished or characterized by an FN7. The ordinance authorizes the Zoning emphasis on matter depicting, describing or Commission to waive the 1,000-foot restric- relating to 'Specified Sexual Activities' or tion if it finds: 'Specified Anatomical Areas,' (as defined "a) That the proposed use will not be con- below), for observation by patrons therein." trary to the public interest or injurious to nearby properties, and that the spirit and in- *54 The 1972 ordinances were amendments to an tent of this Ordinance will be observed. "Anti-Skid Row Ordinance" which had been adopted "b) That the proposed use will not enlarge or 10 years earlier. At that time the Detroit Common encourage the development of a 'skid row' Council made a finding that some uses of property area. are especially injurious to a neighborhood when they "c) That the establishment of an additional are concentrated in limited areas. [FN6] The decision regulated use in the area will not be contrary to add adult motion picture theaters and adult book to any program of neigh(bor)hood conserva- stores to the list of businesses which, apart from a tion nor will it interfere with any program of special waiver, [FN7] **2445 could not be located urban renewal. within 1,000 feet of two other "regulated uses," was, "d) That all applicable regulations of this in part, a response to the significant growth in the Ordinance will be observed." number *55 of such establishments. [FN8] In the opinion of urban planners and real estate experts who FN8. A police department memorandum ad- supported the ordinances, the location of several such dressed to the assistant corporation counsel businesses in the same neighborhood tends to attract stated that since 1967 there had been an in- an undesirable quantity and quality of transients, ad- crease in the number of adult theaters in De- versely affects property values, causes an increase in troit from 2 to 25, and a comparable increase crime, especially prostitution, and encourages resid- in the number of adult book stores and other ents and businesses to move elsewhere. "adult-type businesses."
FN6. Section 66.000 of the Official Zoning Respondents are the operators of two adult motion Ordinance (1972) recited: picture theaters. One, the Nortown, was an estab- "In the development and execution of this lished theater which began to exhibit adult films in Ordinance, it is recognized that there are March 1973. The other, the Pussy Cat, was a corner some uses which, because of their very gas station which was converted into a "mini theater," nature, are recognized as having serious ob- but denied a certificate of occupancy because of its jectionable operational characteristics, par- plan to exhibit adult films. Both theaters were located ticularly when several of them are concen- within 1,000 feet of two other regulated uses and the trated under certain circumstances thereby Pussy Cat was less than 500 feet from a residential having a deleterious effect upon the adjacent area. The respondents brought two separate actions areas. Special regulation of these uses is ne- against appropriate city officials, seeking a declarat- cessary to insure that these adverse effects ory judgment that the ordinances were unconstitu- will not contribute to the blighting or down- tional and an injunction against their enforcement. grading of the surrounding neighborhood. Federal jurisdiction was properly invoked [FN9] and These special regulations are itemized in this the two cases were consolidated for decision. [FN10] section. The primary control or regulation is FN9. Respondents alleged a claim for relief for the purpose of preventing a concentra- under 42 U.S.C. s 1983, invoking the juris- tion of these uses in any one area (i. e. not
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diction of the federal court under 28 U.S.C. U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d s 1343(3). 169 (1966); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 FN10. Both cases were decided in a single (1963). Under this test, the validity of the opinion filed jointly by Judge Kennedy and classification depends on whether it is ne- Judge Gubow. Nortown Theatre v. Gribbs, cessary to further a compelling State in- 373 F.Supp. 363 (ED Mich.1974). terest. "The compelling State interest which the Defendants point to as justifying the re- The District Court granted defendants' motion for strictions on locations of adult theatres and summary judgment. 373 F.Supp. 363. On the basis of bookstores is the preservation of neighbor- the reasons stated *56 by the city for adopting the or- hoods, upon which adult establishments dinances, the court concluded that they represented a have been found to have a destructive im- rational attempt to preserve the city's neighborhoods. pact. The affidavit of Dr. Mel Ravitz clearly [FN11] The court analyzed and rejected respondents' establishes that the prohibition of more than argument that the definition and waiver provisions in one regulated use within 1000 feet is neces- the ordinances were impermissibly vague; it held that sary to promote that interest. This provision the disparate treatment of adult theaters and other therefore does not offend the equal protec- theaters was justified by a compelling state interest tion clause." Id, at 369. and therefore did not violate the Equal Protection Clause; [FN12] and finally it concluded that the FN13. "Applying those standards to the in- **2446 regulation of the places where adult films stant case, the power to license and zone could be shown did not violate the First Amendment. businesses and prohibit their location in cer- [FN13] tain areas is clearly within the constitutional power of the City. The government interest, FN11. "When, as here, the City has stated a i. e. the preservation and stabilization of reason for adopting an ordinance which is a neighborhoods in the City of Detroit, is un- subject of legitimate concern, that statement related to the suppression of free expression. of purpose is not subject to attack. First Amendment rights are indirectly re- "Nor may the Court substitute its judgment lated, but only in the sense that they cannot for that of the Common Council of the City be freely exercised in specific locations. of Detroit as to the methods adopted to deal Plaintiffs would not contend that they are with the City's legitimate concern to pre- entitled to operate a theatre or bookstore, serve neighborhoods, so long as there is which are commercial businesses, in a resid- some rational relationship between the ob- entially zoned area; nor could they claim the jective of the Ordinance and the methods ad- right to put on a performance for profit in a opted." Id., at 367. public street. Admittedly the regulation here FN12. "Because the Ordinances distinguish is more restrictive, but it is of the same char- adult theatres and bookstores from ordinary acter." Id., at 371. theatres and bookstores on the basis of the *57 The Court of Appeals reversed. American Mini content of their respective wares, the classi- Theatres, Inc. v. Gribbs, 518 F.2d 1014 (CA6 1975). fication is one which restrains conduct pro- The majority opinion concluded that the ordinances tected by the First Amendment. See Inter- imposed a prior restraint on constitutionally protected state Circuit, Inc. v. Dallas, 390 U.S. 676, 88 communication and therefore "merely establishing S.Ct. 1298, 20 L.Ed.2d 225 (1968). The ap- that they were designed to serve a compelling public propriate standard for reviewing the classi- interest" provided an insufficient justification for a fication, therefore, is a test of close scrutiny. classification of motion picture theaters on the basis Harper v. Virginia Board of Elections, 383 of the content of the materials they purvey to the pub-
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lic. [FN14] Relying primarily on Police Department ment; (2) that they are invalid under the First Amend- of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 ment as prior restraints on protected communication; L.Ed.2d 212, the court held the ordinance invalid un- and (3) that the classification of theaters on the basis der the Equal Protection Clause. Judge Celebrezze, in of the content of their exhibitions violates the Equal dissent, expressed *58 the opinion that the ordinance Protection Clause of the Fourteenth Amendment. We was a valid " 'time, place and manner' regulation," consider their arguments in that order. rather than a regulation of speech on the basis of its content. [FN15] I There are two parts to respondents' claim that the or- FN14. "The City did not discharge its heavy dinances are too vague. They do not attack the spe- burden of justifying the prior restraint which cificity of the definition of "Specified Sexual Activit- these ordinances undoubtedly impose by ies" or "Specified Anatomical Areas." They argue, merely establishing that they were designed however, that they cannot determine how much of the to serve a compelling public interest. Since described activity may be permissible before the ex- fundamental rights are involved, the City hibition is "characterized by an emphasis" on such had the further burden of showing that the matter. In addition, they argue that the ordinances are method which it chose to deal with the prob- vague because they do not specify adequate proced- lem at hand was necessary and that its effect ures or standards for obtaining a waiver of the on protected rights was only incidental. The 1,000-foot restriction. City could legally regulate movie theatres and bookstores under its police powers by [1] We find it unnecessary to consider the validity of providing that such establishments be oper- either of these arguments in the abstract. For even if ated only in particular areas. . . . However, there may be some uncertainty about the effect of the this ordinance selects for special treatment *59 ordinances on other litigants, they are unques- particular business enterprises which fall tionably applicable to these respondents. The record within the general business classifications indicates that both theaters **2447 propose to offer permissible under zoning laws and classifies adult fare on a regular basis. [FN16] Neither respond- them as regulated uses solely by reference to ent has alleged any basis for claiming or anticipating the content of the constitutionally protected any waiver of the restriction as applied to its theater. materials which they purvey to the public." It is clear, therefore, that any element of vagueness in 518 F.2d, at 1019- 1020. these ordinances has not affected these respondents. To the extent that their challenge is predicated on in- FN15. He stated in part: adequate notice resulting in a denial of procedural "I do not view the 1000-foot provision as a due process under the Fourteenth Amendment, it regulation of speech on the basis of its con- must be rejected. Cf. Parker v. Levy, 417 U.S. 733, tent. Rather, it is a regulation of the right to 754-757, 94 S.Ct. 2547, 2560-2562, 41 L.Ed.2d 439. locate a business based on the side-effects of its location. The interest in preserving neigh- FN16. Both complaints allege that only borhoods is not a subterfuge for censorship." adults are admitted to these theaters. Id., at 1023. Nortown expressly alleges that it "desires to continue exhibiting adult-type motion pic- Because of the importance of the decision, we gran- ture films at said theater." Neither respond- ted certiorari, 423 U.S. 911, 96 S.Ct. 214, 46 L.Ed.2d ent has indicated any plan to exhibit pictures 139. even arguably outside the coverage of the ordinances. As they did in the District Court, respondents contend (1) that the ordinances are so vague that they violate [2] Because the ordinances affect communication the Due Process Clause of the Fourteenth Amend- protected by the First Amendment, respondents argue
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that they may raise the vagueness issue even though rights of association were ensnared in stat- there is no uncertainty about the impact of the ordin- utes which, by their broad sweep, might res- ances on their own rights. On several occasions we ult in burdening innocent associations. See have determined that a defendant whose own speech Keyishian v. Board of Regents, 385 U.S. was unprotected had standing to challenge the consti- 589, 87 S.Ct. 675, 17 L.Ed.2d 629 (1967); tutionality of a statute which purported to prohibit United States v. Robel, 389 U.S. 258, 88 protected speech, or even speech arguably protected. S.Ct. 419, 19 L.Ed.2d 508 (1967); Aptheker [FN17] This exception *60 from traditional rules of v. Secretary of State, 378 U.S. 500, 84 S.Ct. standing to raise constitutional issues has reflected 1659, 12 L.Ed.2d 992 (1964); Shelton v. the Court's judgment that the very existence of some Tucker (364 U.S. 479, 81 S.Ct. 247, 5 statutes may cause persons not before the Court to re- L.Ed.2d 231 (1960)). Facial overbreadth frain from engaging in constitutionally protected claims have also been entertained where speech or expression. See Broadrick v. Oklahoma, statutes, by their terms, purport to regulate 413 U.S. 601, 611-614, 93 S.Ct. 2908, 2915-2917, 37 the time, place, and manner of expressive or L.Ed.2d 830. The exception is justified by the over- communicative conduct, see Grayned v. riding importance of maintaining a free and open City of Rockford, supra, 408 U.S., at market for the interchange of ideas. Nevertheless, if 114-121, 92 S.Ct., at 2302-2306; Cameron the statute's deterrent effect on legitimate expression v. Johnson, 390 U.S., at 617-619, 88 S.Ct., is not "both real and substantial," and if the statute is at 1338, 1339; Zwickler v. Koota, 389 U.S. "readily subject to a narrowing construction by the 241, 249-250, 88 S.Ct. 391, 396-397, 19 state courts," see Erznoznik v. City of Jacksonville, L.Ed.2d 444 (1967); Thornhill v. Alabama, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 125, the litigant is not permitted to assert the rights of (1940), and where such conduct has required third parties. official approval under laws that delegated standardless discretionary power to local FN17. "Such claims of facial overbreadth functionaries, resulting in virtually unre- have been entertained in cases involving viewable prior restraints on First Amend- statutes which, by their terms, seek to regu- ment rights. See Shuttlesworth v. Birming- late 'only spoken words.' Gooding v. Wilson, ham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 162 (1969); Cox v. Louisiana, 379 U.S. 536, L.Ed.2d 408 (1972). See Cohen v. Califor- 553-558, 85 S.Ct. 453, 463-466, 13 L.Ed.2d nia, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 471 (1965); Kunz v. New York, 340 U.S. 284 (1971); Street v. New York, 394 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 666, 82 L.Ed. 949 (1938)." Broadrick v. Ok- 1827, 23 L.Ed.2d 430 (1969); Chaplinsky v. lahoma, 413 U.S. 601, 612-613, 93 S.Ct. New Hampshire, 315 U.S. 568, 62 S.Ct. 2908, 2916, 37 L.Ed.2d 830. 766, 86 L.Ed. 1031 (1942). In such cases, it has been the judgment of this Court that the [3] We are not persuaded that the Detroit zoning or- possible harm to society in permitting some dinances will have a significant deterrent effect on unprotected speech to go unpunished is out- the exhibition of films protected by the First Amend- weighed by the possibility that protected ment. *61 As already noted, the only vagueness in speech of others may be muted and per- the **2448 ordinances relates to the amount of sexu- ceived grievances left to fester because of ally explicit activity that may be portrayed before the the possible inhibitory effects of overly material can be said to "characterized by an emphas- broad statutes. Overbreadth attacks have is" on such matter. For most films the question will also been allowed where the Court thought be readily answerable; to the extent that an area of
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doubt exists, we see no reason why the ordinances appetite for sexually explicit fare. Viewed as an en- are not "readily subject to a narrowing construction tity, the market for this commodity is essentially un- by the state courts." Since there is surely a less vital restrained. interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic [4][5] It is true, however, that adult films may only expression than in the free dissemination of ideas of be exhibited commercially in licensed theaters. But social and political significance, and since the limited that is also true of all motion pictures. The city's gen- amount of uncertainty in the ordinances is easily sus- eral zoning laws require all motion picture theaters to ceptible of a narrowing construction, we think this is satisfy certain locational as well as other require- an inappropriate case in which to adjudicate the hy- ments; we have no doubt that the municipality may pothetical claims of persons not before the Court. control the location of theaters as well as the location of other commercial establishments, either by confin- The only area of protected communication that may ing them to certain specified commercial zones or by be deterred by these ordinances comprises films con- requiring that they be dispersed throughout the city. taining material falling within the specific definitions The mere fact that the commercial exploitation of of "Specified Sexual Activities" or "Specified Ana- material protected by the First Amendment is subject tomical Areas." The fact that the First Amendment to zoning and other licensing requirements is not a protects some, though not necessarily all, of that ma- sufficient reason for invalidating these ordinances. terial from total suppression does not warrant the fur- ther conclusion that an exhibitor's doubts as to wheth- [6] Putting to one side for the moment the fact that er a borderline film may be shown in his theater, as adult motion picture theaters must satisfy a locational well as in theaters licensed for adult presentations, in- restriction not applicable to other theaters, we are volves the kind of threat to the free market in ideas also persuaded that the 1,000-foot restriction does and expression that justifies the exceptional approach not, in itself, create an impermissible restraint on pro- to constitutional adjudication recognized in cases like tected communication. The city's interest in planning Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, and regulating the use of property for commercial 14 L.Ed.2d 22. purposes *63 is clearly adequate to support that kind of restriction applicable to all theaters within the city The application of the ordinances to respondents is limits. In short, apart from the fact that the ordinances plain; even if there is some area of uncertainty about treat adult theaters differently from other theaters and their application in other situations, we agree with the the fact that the classification is predicated on the District Court that respondents' due process argument content of material shown in the respective theaters, must be rejected. the regulation of the place where such films may be exhibited does not **2449 offend the First Amend- *62 II ment. [FN18] We turn, therefore, to the question Petitioners acknowledge that the ordinances prohibit whether the classification is consistent with the Equal theaters which are not licensed as "adult motion pic- Protection Clause. ture theaters" from exhibiting films which are protec- ted by the First Amendment. Respondents argue that FN18. Reasonable regulations of the time, the ordinances are therefore invalid as prior restraints place, and manner of protected speech, on free speech. where those regulations are necessary to fur- ther significant governmental interests, are The ordinances are not challenged on the ground that permitted by the First Amendment. See, E. they impose a limit on the total number of adult g., Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. theaters which may operate in the city of Detroit. 448, 93 L.Ed. 513 (limitation on use of There is no claim that distributors or exhibitors of sound trucks); Cox v. Louisiana, 379 U.S. adult films are denied access to the market or, con- 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (ban on versely, that the viewing public is unable to satisfy its demonstrations in or near a courthouse with
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the intent to obstruct justice); Grayned v. ted, but all other peaceful picketing is prohibited. City of Rockford, 408 U.S. 104, 92 S.Ct. The operative distinction is the message on a picket 2294, 33 L.Ed.2d 222 (ban on willful mak- sign. But, above all else, the First Amendment ing, on grounds adjacent to a school, of any means that government has no power to restrict ex- noise which disturbs the good order of the pression because of its message, its ideas, its sub- school session). ject matter, or its content. Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 III (1971); Street v. New York, 394 U.S. 576, 89 S.Ct. A remark attributed to Voltaire characterizes our 1354, 22 L.Ed.2d 572 (1969); New York Times zealous adherence to the principle that the govern- Co. v. Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. ment may not tell the citizen what he may or may not 710, 720-721, 11 L.Ed.2d 686 (1964), and cases say. Referring to a suggestion that the violent over- cited; NAACP v. Button, 371 U.S. 415, 445, 83 throw of tyranny might be legitimate, he said: "I dis- S.Ct. 328, 344, 9 L.Ed.2d 405 (1963); Wood v. approve of what you say, but I will defend to the Georgia, 370 U.S. 375, 388-389, 82 S.Ct. 1364, death your right to say it." [FN19] The essence of that 1371-1372, 8 L.Ed.2d 569 (1962); Terminiello v. comment has been repeated time after time in our de- Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. cisions invalidating attempts by the government to 1131 (1949); De Jonge v. Oregon, 299 U.S. 353, impose selective controls upon the dissemination of 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937). To ideas. permit the continued building of our politics and culture, and to assure self-fulfillment for each indi- FN19. S. Tallentrye, The Friends of Voltaire vidual, our people are guaranteed the right to ex- 199 (1907). press any thought, free from government censor- Thus, the use of streets and parks for the free expres- ship. The essence of this forbidden censorship is sion of views on national affairs may not be condi- content control. Any restriction on expressive tioned upon the sovereign's agreement with what a activity because of its content *65 would com- speaker may intend to say. [FN20] Nor may speech pletely undercut the 'profound national commit- be curtailed because it *64 invites dispute, creates ment to the principle that debate on public issues dissatisfaction with conditions the way they are, or should be uninhibited, robust, and wide-open.' New even stirs people to anger. [FN21] The sovereign's York Times Co. v. Sullivan, supra, 376 U.S., at 270, agreement or disagreement with the content of what a 84 S.Ct., at 721. speaker has to say may not affect the regulation of **2450 "Necessarily, then, under the Equal Protec- the time, place, or manner of presenting the speech. tion Clause, not to mention the First Amendment itself, government may not grant the use of a forum FN20. See Hague v. CIO, 307 U.S. 496, to people whose views it finds acceptable, but deny 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 use to those wishing to express less favored or (opinion of Roberts, J.). more controversial views. And it may not select which issues are worth discussing or debating in FN21. Terminiello v. Chicago, 337 U.S. 1, public facilities. There is an 'equality of status in 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131. the field of ideas,' and government must afford all points of view an equal opportunity to be heard. If picketing in the vicinity of a school is to be al- Once a forum is opened up to assembly or speaking lowed to express the point of view of labor, that by some groups, government may not prohibit oth- means of expression in that place must be allowed for ers from assembling or speaking on the basis of other points of view as well. As we said in Mosley : what they intend to say. Selective exclusions from "The central problem with Chicago's ordinance is a public forum may not be based on content alone, that it describes permissible picketing in terms of and may not be justified by reference to content its subject matter. Peaceful picketing on the subject alone." 408 U.S., at 95-96, 92 S.Ct., at 2290. of a school's labor-management dispute is permit-
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(Footnote omitted.) FN24. In Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 This statement, and others to the same effect, read lit- L.Ed. 1031, we held that a statute punishing erally and without regard for the facts of the case in the use of "damned racketeer(s)" and which it was made, would absolutely preclude any "damned Fascist(s)" did not unduly impair regulation of expressive activity predicated in whole liberty of expression. or in part on the content of the communication. But we learned long ago that broad statements of prin- [8] Even within the area of protected speech, a differ- ciple, no matter how correct in the context in which ence in content may require a different governmental they are made, are sometimes qualified by contrary response. In New York Times Co. v. Sullivan, 376 decisions before the absolute limit of the stated prin- U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, we recog- ciple is reached. [FN22] When we review this Court's nized that the First Amendment places limitations on actual adjudications in the First Amendment area, we the States' power to enforce their libel laws. We held find this to have been the case *66 with the stated that a public official may not recover damages from a principle that there may be no restriction whatever on critic of his official conduct without proof of expressive activity because of its content. "malice" as specially defined in that opinion. [FN25] Implicit in the opinion is the assumption that if the FN22. See E. g., Kastigar v. United States, content of the newspaper article had been different 406 U.S. 441, 454-455, 92 S.Ct. 1653, that is, if its subject matter had not been a public offi- 1661-1662, 32 L.Ed.2d 212; United Gas cial a lesser standard of proof would have been ad- Imp. Co. v. Continental Oil Co., 381 U.S. equate. 392, 404, 85 S.Ct. 1517, 1524, 14 L.Ed.2d 466. FN25. "Actual malice" is shown by proof that a statement was made "with knowledge [7] The question whether speech is, or is not, protec- that it was false or with reckless disregard of ted by the First Amendment often depends on the whether it was false or not." 376 U.S., at content of the speech. Thus, the line between per- 280, 84 S.Ct., at 726. missible advocacy and impermissible incitation to crime or violence depends, not merely on the setting [9] *67 In a series of later cases, in which separate in- in which the speech occurs, but also on exactly what dividual views were frequently stated, the Court ad- the speaker had to say. [FN23] Similarly, it is the dressed the broad problem of when the New York content of the utterance that determines whether it is Times standard **2451 of malice was required by the a protected epithet or an unprotected "fighting com- First Amendment. Despite a diversity of opinion on ment." [FN24] And in time of war "the publication of whether it was required only in cases involving pub- the sailing dates of transports or the number and loca- lic figures, or also in cases involving public issues, tion of troops" may unquestionably be restrained, see and on whether the character of the damages claim Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, mattered, a common thread which ran through all the 51 S.Ct. 625, 631, 75 L.Ed. 1357, although publica- opinions was the assumption that the rule to be ap- tion of news stories with a different content would be plied depended on the content of the communication. protected. [FN26] But that assumption did not contradict the un- derlying reason for the rule which is generally de- FN23. See Bond v. Floyd, 385 U.S. 116, scribed as a prohibition of regulation based on the 133-134, 87 S.Ct. 339, 348, 17 L.Ed.2d 235; content of protected communication. The essence of Harisiades v. Shaughnessy, 342 U.S. 580, that rule is the need for absolute neutrality by the 592, 72 S.Ct. 512, 520, 96 L.Ed. 586; government; its regulation of communication may Musser v. Utah, 333 U.S. 95, 99-101, 68 not be affected by sympathy or hostility for the point S.Ct. 397, 398-399, 92 L.Ed. 562. of view being expressed by the communicator. [FN27] Thus, although *68 the content of story must
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be examined to decide whether it involves a public scribe by law what matters of public interest figure or a public issue, the Court's application of the people it allows to assemble on its streets relevant rule may not depend on its favorable or unfa- may and may not discuss. This seems to me vorable appraisal of that figure or that issue. to be censorship in a most odious form . . . ' (379 U.S., at 581, 85 S.Ct., at 453)." FN26. See, for example, the discussion of the " 'public or general interest' test" for de- [10] We have recently held that the First Amendment termining the applicability of the New York affords some protection to commercial speech. Times standard in Gertz v. Robert Welch, [FN28] We have also made it clear, however, that the Inc., 418 U.S. 323, 346, 94 S.Ct. 2997, content of a particular advertisement may determine 3010, 41 L.Ed.2d 789, and the reference, Id., the extent of its protection. A public rapid transit sys- at 348, 94 S.Ct., at 3011, to a factual mis- tem may accept some advertisements and reject oth- statement "whose content did not warn a ers. [FN29] A state statute may permit highway bill- reasonably prudent editor or broadcaster of boards to advertise businesses located in the neigh- its defamatory potential." The mere fact that borhood but not elsewhere, [FN30] and regulatory an alleged defamatory statement is false commissions may prohibit businessmen from making does not, of course, place it completely bey- statements which, though literally true, are poten- ond the protection of the First Amendment. tially deceptive. [FN31] The measure of **2452 con- "The First Amendment requires that we pro- stitutional protection *69 to be afforded commercial tect some falsehood in order to protect speech will surely be governed largely by the content speech that matters." Id., at 341, 94 S.Ct. at of the communication. [FN32] 3007. FN28. Virginia Pharmacy Board v. Virginia FN27. Thus, Professor Kalven wrote in The Consumer Council, 425 U.S. 748, 96 S.Ct. Concept of the Public Forum: Cox v. Louisi- 1817, 48 L.Ed.2d 346. ana, 1965 Sup.Ct.Rev. 1, 29: "(The Equal Protection Clause) is likely to FN29. Lehman v. City of Shaker Heights, provide a second line of defense for vigor- 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d ous users of the public forum. If some 770 (product advertising accepted, while groups are exempted from a prohibition on political cards rejected). parades and pickets, the rationale for regula- FN30. Markham Advertising Co. v. State, tion is fatally impeached. The objection can 73 Wash.2d 405, 439 P.2d 248 (1968), ap- then no longer be keyed to interferences peal dismissed for want of a substantial fed- with other uses of the public places, but eral question, 393 U.S. 316, 89 S.Ct. 553, 21 would appear to implicate the kind of mes- L.Ed.2d 512. sage that the groups were transmitting. The regulation would thus slip from the neutral- FN31. In NLRB v. Gissel Packing Co., 395 ity of time, place, and circumstance into a U.S. 575, 617, 89 S.Ct. 1918, 1941, 23 concern about content. The result is that L.Ed.2d 547, the Court upheld a federal stat- equal-protection analysis in the area of ute which balanced an employer's free speech issues would merge with considera- speech right to communicate with his em- tions of censorship. And this is precisely ployees against the employees' rights to as- what Mr. Justice Black argued in Cox : sociate freely by providing that the expres- " 'But by specifically permitting picketing sion of " 'any views, argument, or opinion' " for the publication of labor union views, should not be " 'evidence of an unfair labor Louisiana is attempting to pick and choose practice,' " So long as such expression con- among the views it is willing to have dis- tains " 'no threat of reprisal or force or prom- cussed on its streets. It is thus trying to pre-
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ise of benefit' " which would involve inter- the difficult problem of obscenity under the ference, restraint, or coercion of employees First Amendment: in the exercise of their right to self- "I would hold, therefore, that at least in the organization. absence of distribution to juveniles or ob- The power of the Federal Trade Commission trusive exposure to unconsenting adults, the to restrain misleading, as well as false, state- First and Fourteenth Amendments prohibit ments in labels and advertisements has long the State and Federal Governments from at- been recognized. See, E. g., Jacob Siegel tempting wholly to suppress sexually ori- Co. v. FTC, 327 U.S. 608, 66 S.Ct. 758, 90 ented materials on the basis of their al- L.Ed. 888; FTC v. National Comm'n on Egg legedly 'obscene' contents. Nothing in this Nutrition, 517 F.2d 485 (CA7 1975); E. F. approach precludes those governments from Drew & Co. v. FTC, 235 F.2d 735, 740 taking action to serve what may be strong (CA2 1956). and legitimate interests through regulation of the manner of distribution of sexually ori- FN32. As Mr. Justice Stewart pointed out in ented material." Id., at 113, 93 S.Ct., at Virginia Pharmacy Board v. Virginia Con- 2662. sumer Council, supra, 425 U.S., at 779, 96 S.Ct., at 1834 (concurring opinion), the "dif- Such a line may be drawn on the basis of content ferences between commercial price and without violating the government's paramount obliga- product advertising . . . and ideological com- tion of neutrality in its regulation of protected com- munication" permits regulation of the former munication. For the regulation of the places where that the First Amendment would not tolerate sexually explicit films may be exhibited is unaffected with respect to the latter. by whatever social, political, or philosophical mes- sage a film may be intended to communicate; wheth- More directly in point are opinions dealing with the er a motion picture ridicules or characterizes one question whether the First Amendment prohibits the point of view or another, the effect of the ordinances State and Federal Governments from wholly sup- is exactly the same. pressing sexually oriented materials on the basis of their "obscene character." In Ginsberg v. New York, [11] Moreover, even though we recognize that the 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, the First Amendment will not tolerate the total suppres- Court upheld a conviction for selling to a minor sion of erotic materials that have some arguably magazines which were concededly not "obscene" if artistic value, it is manifest that society's interest in shown to adults. Indeed, the Members of the Court protecting this type of expression is of a wholly dif- who would accord the greatest protection to such ma- ferent, and lesser, magnitude than the interest in un- terials have repeatedly indicated that the State could trammeled political debate that inspired Voltaire's prohibit the distribution or exhibition of such materi- immortal comment. Whether political oratory or als to juveniles and unconsenting adults. [FN33] philosophical discussion moves us to applaud or to Surely the First Amendment does *70 not foreclose despise what is said, every schoolchild can under- such a prohibition;yet it is equally clear that any such stand why our duty to defend the right to speak re- prohibition must rest squarely on an appraisal of the mains the same. But few of us would march our sons content of material otherwise within a constitution- and daughters off to war to preserve the citizen's right ally protected area. to see "Specified Sexual Activities" exhibited in the theaters of our choice. Even though the First Amend- FN33. In Paris Adult Theatre I v. Slaton, ment protects communication in this area from total 413 U.S. 49, 73, 93 S.Ct. 2628, 2665, 37 suppression, we hold that the State may legitimately L.Ed.2d 446, Mr. Justice Brennan, in a dis- use the content of these materials as the basis *71 for sent joined by Mr. Justice Stewart and Mr. placing them in a different classification from other Justice Marshall, explained his approach to motion pictures.
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[12][13] The remaining question is whether the line Clause of the Fourteenth Amendment. drawn by these ordinances is justified by the city's in- terest in preserving the character of its neighbor- FN35. The situation would be quite different hoods. On this question we agree with the views ex- if the ordinance had the effect of suppress- pressed by District Judges Kennedy and Gubow. The ing, or greatly restricting access to, lawful record disclosed a factual basis for the Common speech. Here, however, the District Court Council's conclusion that this kind of restriction will specifically found that "(t)he Ordinances do have the **2453 desired effect. [FN34] It is not our not affect the operation of existing establish- function to appraise the wisdom of its decision to re- ments but only the location of new ones. quire adult theaters to be separated rather than con- There are myriad locations in the City of centrated in the same areas. In either event, the city's Detroit which must be over 1000 feet from interest in attempting to preserve the quality of urban existing regulated establishments. This bur- life is one that must be accorded high respect. den on First Amendment rights is slight." Moreover, the city must be allowed a reasonable op- 373 F.Supp., at 370. portunity to experiment with solutions to admittedly It should also be noted that the definitions of serious problems. "Specified Sexual Activities" and "Specified Anatomical Areas" in the zoning ordinances, FN34. The Common Council's determina- which require an emphasis on such matter tion was that a concentration of "adult" and primarily concern conduct, are much movie theaters causes the area to deteriorate more limited than the terms of the public and become a focus of crime, effects which nuisance ordinance involved in Erznoznik, are not attributable to theaters showing other supra, which broadly prohibited scenes types of films. It is this secondary effect which could not be deemed inappropriate which these zoning ordinances attempt to even for juveniles. avoid, not the dissemination of "offensive" "The ordinance is not directed against sexu- speech. In contrast, in Erznoznik v. City of ally explicit nudity, nor is it otherwise lim- Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, ited. Rather, it sweepingly forbids display of 45 L.Ed.2d 125, the justifications offered by all films containing Any uncovered buttocks the city rested primarily on the city's interest or breasts, irrespective of context or pervas- in protecting its citizens from exposure to iveness. Thus it would bar a film containing unwanted, "offensive" speech. The only sec- a picture of a baby's buttocks, the nude body ondary effect relied on to support that ordin- of a war victim, or scenes from a culture in ance was the impact on traffic an effect which nudity is indigenous. The ordinance which might be caused by a distracting also might prohibit newsreel scenes of the open-air movie even if it did not exhibit opening of an art exhibit as well as shots of nudity. bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. See Since what is ultimately at stake is nothing more than Ginsberg v. New York, supra. Nor can such a limitation on the place where adult films may be a broad restriction be justified by any other exhibited, [FN35] even though the determination of governmental interest pertaining to minors. whether a *72 particular film fits that characterization Speech that is neither obscene as to youths turns on the nature of its content, we conclude that nor subject to some other legitimate pro- the city's interest in the present and future character scription cannot be suppressed solely to pro- of its neighborhoods adequately supports its classific- tect the young from ideas or images that a ation of motion pictures. We hold that the zoning or- legislative body thinks unsuitable for them." dinances requiring that adult *73 motion picture 422 U.S., at 213-214, 95 S.Ct., at 2274. theaters not be located within 1,000 feet of two other Moreover, unlike the ordinances in this case, regulated uses does not violate the Equal Protection
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the Erznoznik ordinance singled out movies for such power: "(W)ith the great increase and con- "containing even the most fleeting and inno- centration of population, problems have developed, cent glimpses of nudity . . . ." Id., at 214, 95 and constantly are developing, which require, and S.Ct., at 2275. will continue to require, additional restrictions in re- The Court's opinion in Erznoznik presaged spect of the use and occupation of private lands in our holding today by noting that the pre- urban communities." Id., at 386-387, 47 S.Ct., at 118. sumption of statutory validity "has less force The Court also *74 laid out the general boundaries when a classification turns on the subject within which the zoning power may operate: Restric- matter of expression." Id., at 215, 95 S.Ct., tions upon the free use of private land must find their at 2275. Respondents' position is that the justifications in "some aspect of the police power, as- presumption has no force, or more precisely, serted for the public welfare"; the legitimacy of any that any classification based on subject mat- particular restriction must be judged with reference to ter is absolutely prohibited. all of the surrounding circumstances and conditions; and the legislative judgment is to control in cases in The judgment of the Court of Appeals is which the validity of a particular zoning regulation is "fairly debatable." Id., at 387, 388, 47 S.Ct., at 118. Reversed. In the intervening years zoning has become an accep- Mr. Justice POWELL, concurring in the judgment ted necessity in our increasingly urbanized society, and portions of the opinion. and the types of zoning restrictions have taken on Although I agree with much of what is said in the forms far more complex and innovative than the or- Court's opinion, and concur in Parts I and II, my ap- dinance involved in Euclid. In Village of Belle Terre proach to the resolution of this case is sufficiently v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 different to prompt me to write separately. [FN1] I (1974), we considered an unusual regulation enacted view the **2454 case as presenting an example of in- by a small Long Island community in an apparent ef- novative land-use regulation, implicating First fort to avoid some of the unpleasantness of urban liv- Amendment concerns only incidentally and to a lim- ing. It restricted land use within the village to single- ited extent. family dwellings and defined "family" in such a way that no more than two unrelated persons could inhabit FN1. I do not think we need reach, nor am I the same house. We upheld this ordinance, noting inclined to agree with, the holding in Part III that desires to avoid congestion and noise from both (and supporting discussion) that nonob- people and vehicles were "legitimate guidelines in a scene, erotic materials may be treated differ- land-use project addressed to family needs" and that ently under First Amendment principles it was quite within the village's power to "make the from other forms of protected expression. I area a sanctuary for people." Id., at 9, 94 S.Ct., at do not consider the conclusions in Part I of 1541. the opinion to depend on distinctions between protected speech. II Against this background of precedent, it is clear bey- I ond question that the Detroit Common Council had One-half century ago this Court broadly sustained the broad regulatory power to deal with the problem that power of local municipalities to utilize the then relat- prompted enactment of the Anti-Skid Row Ordin- ively novel concept of land-use regulation in order to ance. As the Court notes, Ante, at 2444, and n. 6, the meet effectively the increasing encroachments of urb- Council was motivated by its perception that the "reg- anization upon the quality of life of their citizens. Eu- ulated uses," when concentrated, worked a "deleteri- clid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. ous effect upon the *75 adjacent areas" and could 114, 71 L.Ed. 303 (1926). The Court there noted the "contribute to the blighting or downgrading of the very practical consideration underlying the necessity surrounding neighborhood." The purpose of prevent-
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ing the deteriorationf commercial neighborhoods was Fourteenth Amendments have been implicated by a certainly within the concept of the public welfare that municipality's commercial zoning ordinances. Re- defines the limits of the police power. See Berman v. spondents would have us mechanically apply the doc- Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102, 99 trines developed in other contexts. But this situation L.Ed. 27 (1954). Respondents apparently concede the is not analogous to cases involving expression in legitimacy of the ordinance as passed in 1962, but public forums or to those involving individual ex- challenge the amendments 10 years later that brought pression or, indeed, to any other prior case. The within its provisions adult theaters as well as adult unique situation presented by this ordinance calls, as bookstores and "topless" cabarets. Those amend- cases in this area so often do, for a careful inquiry in- ments resulted directly from the Common Council's to the competing concerns of the State and the in- determination that the recent proliferation of these es- terests protected by the guarantee of free expression. tablishments and their tendency to cluster in certain parts of the city would have the adverse effect upon Because a substantial burden rests upon the State the surrounding areas that the ordinance was aimed at when it would limit in any way First Amendment preventing. rights, it is necessary to identify with specificity the nature of the infringement in each case. The primary Respondents' attack on the amended ordinance, inso- concern of the free speech guarantee is that there be far as it affects them, can be stated simply. Contend- full opportunity for expression in all of its varied ing that it is the "character of the right, not of the lim- forms to convey a desired message. Vital to this con- itation," which governs the standard of judicial re- cern is the corollary that there be full opportunity for view, see Thomas v. Collins, 323 U.S. 516, 530, 65 everyone to receive the message. See, E. g., Whitney S.Ct. 315, 322, 89 L.Ed. 430 (1945), and that zoning v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, regulations therefore have no talismanic immunity 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); Co- from constitutional **2455 challenge, cf. New York hen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 1787, 29 L.Ed.2d 284 (1971); Procunier v. Martinez, 710, 720, 11 L.Ed.2d 686 (1964), they argue that the 416 U.S. 396, 408-409, 94 S.Ct. 1800, 1808-1809, 40 1972 amendments abridge First Amendment rights L.Ed.2d 224 (1974); Kleindienst v. Mandel, 408 U.S. by restricting the places at which an adult theater may 753, 762-765, 92 S.Ct. 2576, 2581-2582, 33 L.Ed.2d locate on the basis of nothing more substantial than 683 (1972); Virginia Pharmacy Board v. Virginia unproved fears and apprehensions about the effects of Consumer Council, 425 U.S. 748, 763-765, 96 S.Ct. such a business upon the surrounding area. Cf., E. g., 1817, 1826-1827, 48 L.Ed.2d 346 (1976). Motion Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 pictures, the medium of expression involved here, are L.Ed. 1131 (1949); Cox v. Louisiana, 379 U.S. 536, fully within the protection of the First *77 Amend- 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). And, even if ment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, Detroit's interest in preventing the deterioration of 501- 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). In the business areas is sufficient to justify the impact upon quarter century since Burstyn motion pictures and an freedom of expression, the ordinance is nevertheless analous medium, printed books, have been before this invalid because it impermissibly *76 discriminates Court on many occasions, and the person asserting a between types of theaters solely on the basis of their First Amendment claim often has been a theater own- content. See Police Dept. of Chicago v. Mosley, 408 er or a bookseller. Our cases reveal, however, that the U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). central concern of the First Amendment in this area is that there be a free flow from creator to audience of I reject respondents' argument for the following reas- whatever message a film or a book might convey. ons. Mr. Justice Douglas stated the core idea succinctly: "In this Nation every writer, actor, or producer, no III matter what medium of expression he may use, This is the first case in this Court in which the in- should be freed from the censor." Superior Films v. terests in free expression protected by the First and
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Department of Education, 346 U.S. 587, 589, 74 restrict in any significant way the viewing of these S.Ct. 286, 287, 98 L.Ed. 329 (1954) (concurring movies by those who desire to see them? On the re- opinion). In many instances, for example with respect cord in this case, these inquiries must be answered in to certain criminal statutes or censorship or licensing the negative. At most the impact of the ordinance on schemes, it is only the theater owner or the bookseller these interests is incidental and minimal. [FN2] De- who can protect this interest. But the central First troit has silenced no message, has invoked no censor- Amendment concern remains the need to maintain ship, and has imposed no limitation upon those who free access of the public to the expression. See, E. g., wish to view them. The ordinance is addressed only Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442, to the places at which this type of *79 expression 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957); Smith v. Cali- may be presented, a restriction that does not interfere fornia, 361 U.S. 147, 150, 153-154, 80 S.Ct. 215, with content. Nor is there any significant overall cur- 218-219, 4 L.Ed.2d 205 (1959); **2456Interstate Cir- tailment of adult movie presentations, or the oppor- cuit v. Dallas, 390 U.S. 676, 683-684, 88 S.Ct. 1298, tunity for a message reach an audience. On the basis 1302-1303, 20 L.Ed.2d 225 (1968); compare Marcus of the District Court's finding, Ante, at 2453, n. 35, it v. Search Warrant, 367 U.S. 717, 736, 81 S.Ct. 1708, appears that if a sufficient market exists to support 1718, 6 L.Ed.2d 1127 (1961), and A Quantity of them the number of adult movie theaters in Detroit Books v. Kansas, 378 U.S. 205, 213, 84 S.Ct. 1723, will remain approximately the same, free to purvey 1727, 12 L.Ed.2d 809 (1964), with Heller v. New the same message. To be sure some prospective pat- York, 413 U.S. 483, 491-492, 93 S.Ct. 2789, 2794, rons may be inconvenienced by this dispersal. [FN3] 37 L.Ed.2d 745 (1973); and cf. Bantam Books, Inc. v. But other patrons, depending upon where they live or Sullivan, 372 U.S. 58, 70-71, 83 S.Ct. 631, 639, 9 work, may find it more convenient to view an adult L.Ed.2d 584 (1963). movie when adult theaters are not concentrated in a particular section of the city. In this case, there is no indication that the application of the Anti-Skid Row Ordinance to adult theaters has FN2. The communication involved here is the effect of suppressing production of or, to any sig- not a kind in which the content or effective- nificant degree, restricting access to adult movies. ness of the message depends in some meas- The Nortown concededly will not be able to exhibit ure upon where or how it is conveyed. Cf. adult movies at its present location, and the ordinance Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. limits the potential *78 location of the proposed 453, 13 L.Ed.2d 471 (1965); Brown v. Pussy Cat. The constraints of the ordinance with re- Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 spect to location may indeed create economic loss for L.Ed.2d 637 (1966); Police Dept. of Chica- some who are engaged in this business. But in this re- go v. Mosley, supra, 408 U.S. 92, 93, 92 spect they are affected no differently from any other S.Ct. 2286, 2288, 33 L.Ed.2d 212 (1972). commercial enterprise that suffers economic detri- There is no suggestion that the Nortown is, ment as a result of land-use regulation. The cas are or that the Pussy Cat would be, anything legion that sustained zoning against claims of serious more than a commercial purveyor. They do economic damage. See, E. g., Zahn v. Board of Pub- not profess to convey their own personal lic Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074 messages through the movies they show, so (1927). that the only communication involved is that contained in the movies themselves. Cf. The inquiry for First Amendment purposes is not United States v. O'Brien, 391 U.S. 367, 376, concerned with economic impact; rather, it looks 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); only to the effect of this ordinance upon freedom of Spence v. Washington, 418 U.S. 405, expression. This prompts essentially two inquiries: (i) 409-411, 94 S.Ct. 2727, 2729-2730, 41 Does the ordinance impose any content limitation on L.Ed.2d 842 (1974). the creators of adult movies or their ability to make them available to whom they desire, and (ii) does it FN3. The burden, it should be noted, is no
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different from that imposed by more com- with tragic consequences to social, environmental, mon ordinances that restrict to commercial and economic values. While I agree with respondents zones of a city movie theaters generally as that no aspect of the police power enjoys immunity well as other types of businesses presenting from searching constitutional scrutiny, it also is un- similar traffic, parking, safety, or noise deniable that zoning, when used to preserve the char- problems. After a half century of sustaining acter of specific areas of a city, is perhaps "the most traditional zoning of this kind, there is no essential function performed by local government, for reason to believe this Court would invalidate it is one of the primary means by which we protect such an ordinance as violative of the First that sometimes difficult to define concept of quality Amendment. The only difference between of life." Village of Belle Terre v. Boraas, 416 U.S., at such an ordinance and the Detroit ordinance 13, 94 S.Ct., at 1543 (Marshall, J., dissenting). lies in the reasons for regulating the location of adult theaters. The special public interest The third and fourth tests of O'Brien also are met on that supports this ordinance is certainly as this record. It is clear both from the chronology and substantial as the interests that support the from the facts that Detroit has not embarked on an ef- normal area zoning to which all movie theat- fort to suppress free expression. The ordinance was ers, like other commercial establishments, already in existence, and its purposes clearly set out, long have been subject. for a full decade before adult establishments were brought under it. When this occurred, it is clear in- **2457 In these circumstances, it is appropriate to deed it is not seriously challenged that the govern- analyze the permissibility of Detroit's action under mental interest prompting the inclusion in the ordin- the four-part test of United States v. O'Brien, 391 ance of adult establishments was wholly unrelated to U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 any suppression of *81 free expression. [FN4] Nor is (1968). Under that test, a governmental regulation is there reason to question**2458 that the degree of in- sufficiently justified, despite its incidental impact cidental encroachment upon such expression was the upon First Amendment interests, "if it is within the minimum necessary to further the purpose *82 of the constitutional power of the Government; if it furthers ordinance. The evidence presented to the Common an important or substantial governmental interest; if Council indicated that the urban deterioration was the governmental interest is unrelated to the suppres- threatened, not by the concentration of all movie sion of free *80 expression; and if the incidental re- theaters with other "regulated uses," but only by a striction on . . . First Amendment freedoms is no concentration of those that elected to specialize in greater than is essential to the furtherance of that in- adult movies. [FN5] The case would present a differ- terest." Ibid. The factual distinctions between a pro- ent situation had Detroit brought within the ordinance secution for destruction of a Selective Service regis- types of theaters that had not been shown to contrib- tration certificate, as in O'Brien, and this case are ute to the deterioration of surrounding areas. [FN6] substantial, but the essential weighing and balancing of competing interestare the same. Cf. Procunier v. FN4. Respondents attack the nature of the Martinez, 416 U.S., at 409-412, 94 S.Ct., at evidence upon which the Common Council 1809-1810. acted in bringing adult entertainment estab- lishments under the ordinance, and which There is, as noted earlier, no question that the ordin- petitioners submitted to the District Court in ance was within the power of the Detroit Common support of it. That evidence consisted of re- Council to enact. See Berman v. Parker, 348 U.S., at ports and affidavits from sociologists and 32, 75 S.Ct., at 102. Nor is there doubt that the in- urban planning experts, as well as some lay- terests furthered by this ordinance are both important men, on the cycle of decay that had been and substantial. Without stable neighborhoods, both started in areas of other cities, and that could residential and commercial, large sections of a mod- be expected in Detroit, from the influx and ern city quickly can deteriorate into an urban jungle concentration of such establishments. Re-
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spondents insist that a major part of that against the effects of a predictable interac- cycle is a kind of "self-fulfilling prophecy" tion between a concentration of certain busi- in which a business establishment neighbor- nesses and the responses of people in the ing on several of the "regulated uses" per- area. If it had been concerned with restrict- ceives that the area is going downhill eco- ing the message purveyed by adult theaters, nomically, and moves out, with the result it would have tried to close them or restrict that a less desirable establishment takes its their number rather than circumscribe their place thus fulfilling the prophecy made by choice as to location. the more reputable business. As noted earli- er, Supra, at 2454, respondents have tried to FN5. Respondents have argued that the analogize these types of fears to the appre- Common Council should have restricted hension found insufficient in previous cases adult theaters' hours of operation or their ex- to justify stifling free expression. But cases terior advertising instead of refusing to al- like Cox and Terminiello, upon which re- low their clustering with other "regulated spondents rely, involved individuals desiring uses." Most of the ill effects, however, ap- to express Their own messages rather than pear to result from the clustering itself rather commercial exhibitors of films or vendors of than the operational characteristics of indi- books. When an individual or a group of in- vidual theaters. Moreover, the ordinance dividuals is silenced, the message itself is si- permits an exception to its 1,000-foot re- lenced and free speech is stifled. In the con- striction in appropriate cases. See Ante, at text of movies and books, the more apt ana- 2444 n. 7. logy to Cox or Terminiello would be the FN6. In my view Mr. Justice STEWART's censorship cases, in which a State or a muni- dissent misconceives the issue in this case cipality attempted to suppress copies of par- by insisting that it involves an impermissible ticular works, or the licensing cases in which time, place, and manner restriction based on that danger was presented. But a zoning or- the content of expression. It involves noth- dinance that merely specifies where a theater ing of the kind. We have here merely a de- may locate, and that does not reduce signi- cision by the city to treat certain movie ficantly the number or accessibility of theat- theaters differently because they have ers presenting particular films, stifles no ex- markedly different effects upon their sur- pression. Moreover, the Common Council roundings. See n. 3, Supra. Moreover, even did not inversely zone adult theaters in an if this were a case involving a special gov- effort to protect citizens against the Content ernmental response to the content of one of adult movies. If that had been its purpose, type of movie, it is possible that the result or the effect of the amendment to the ordin- would be supported by a line of cases recog- ance, the case might be analogous to those nizing that the government can tailor its re- cited by Mr. Justice STEWART's dissent, action to different types of speech according Post, at 2459. Moreover, an intent or pur- to the degree to which its special and over- pose to restrict the communication itself be- riding interests are implicated. See, E. g., cause of its nature would make the O'Brien Tinker v. Des Moines School Dist., 393 U.S. test inapplicable. See O'Brien, 391 U.S., at 503, 509-511, 89 S.Ct. 733, 737-739, 21 382, 88 S.Ct., at 1681; Spence v. Washing- L.Ed.2d 731 (1969); Procunier v. Martinez, ton, 418 U.S., at 414 n. 8, 94 S.Ct., at 2732; 416 U.S. 396, 413-414, 94 S.Ct. 1800, 1811, cf. Stromberg v. California, 283 U.S. 359, 40 L.Ed.2d 224 (1974); Greer v. Spock, 424 51 S.Ct. 532, 75 L.Ed. 1117 (1931). But the U.S. 828, 842-844, 96 S.Ct. 1211, Common Council simply acted to protect the 1219-1220, 47 L.Ed.2d 505 (1976) (Powell, economic integrity of large areas of its city J., concurring); cf. CSC v. Letter Carriers,
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413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d In sum, the ordinance in Erznoznik was a miscon- 796 (1973). It is not analogous to Police ceived attempt directly to regulate content of expres- Dept. of Chicago v. Mosley, 408 U.S. 92, 92 sion. The Detroit zoning ordinance, in contrast, af- S.Ct. 2286, 33 L.Ed.2d 212 (1972), in which fects expression only incidentally and in furtherance no governmental interest justified a distinc- of governmental interests wholly unrelated to the reg- tion between the types of messages permit- ulation of expression. At least as applied to respond- ted in the public forum there involved. ents, it does not offend the First Amendment. Al- though courts must be alert to the possibility of direct *83 IV rather than incidental effect of zoning on expression, The dissenting opinions perceive support for their po- and especially to the possibility of using the power to sition in Erznoznik v. City of Jacksonville, 422 U.S. zone as a pretext for suppressing expression, it is 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). I believe clear that this is not such a case. this perception is a clouded one. The Jacksonville and Detroit ordinances are quite dissimilar, and our ana- Mr. Justice STEWART, with whom Mr. Justice lysis of the infirmities of the former is inapplicable to BRENNAN, Mr. Justice MARSHALL, and Mr. the latter. In Erznoznik, an ordinance purporting to Justice BLACKMUN join, dissenting. prevent a nuisance, not a comprehensive zoning or- dinance, prohibited the showing of films containing The Court today holds that the First and Fourteenth nudity by drive-in theaters when the screens were Amendments do not prevent the city of Detroit from visible from a public street or place. The government- using a system of prior restraints and criminal sanc- al interests advanced as justifying the ordinance were tions to enforce content-based restrictions on the geo- three: (i) to protect citizens from unwilling exposure graphic location of motion picture theaters that exhib- to possibly offensive material; (ii) to protect children it nonobscene but sexually oriented films. I dissent from such materials; and (iii) to prevent the slowing from this drastic departure from established prin- of passing traffic and the likelihood of resulting acci- ciples of First Amendment law. dents. We found the Jacksonville ordinance on its This case does not involve a simple zoning ordin- face either overbroad or underinclusive with respect ance, [FN1] or a content-neutral time, place, and to each of these asserted purposes. As to the first pur- manner restriction, [FN2]*85 or a regulation of ob- pose, the ordinance was overbroad because it pro- scene expression or other speech that is entitled to scribed the showing of any nudity, however innocent less than the full protection of the First Amendment. or educational. Moreover, potential viewers who [FN3] The kind of expression at issue here is no deemed particular nudity to be offensive were not doubt objectionable to some, but that fact does not di- captives; they had only to look elsewhere. Id., at minish its protected status any more than did the par- 210-212, 95 S.Ct., at 2273-2274; see Cohen v. Cali- ticular content of the "offensive" expression in fornia, 403 U.S., at 21, 91 S.Ct., at 1786. As to Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 minors the Jacksonville ordinance was overbroad be- S.Ct. 2268, 45 L.Ed.2d 125 (display of nudity on a cause it "might prohibit newsreel scenes of the open- drive-in movie screen); Lewis v. City of New Or- ing of an art exhibit as well as shots of bathers on a leans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 beach." 422 U.S., at 213, 95 S.Ct., at 2275. Finally, (utterance of vulgar epithet); Hess v. Indiana, 414 the **2459 ordinance was not rationally tailored to U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (utterance of support its asserted purpose as a traffic regulation. By vulgar remark); Papish v. University of Missouri proscribing "even the most fleeting and innocent Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d glimpses of nudity," it was strikingly underinclusive 618 (indecent remarks in campus newspaper); Cohen omitting "a wide variety *84 of other scenes in the v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d customary screen diet . . . (that) would be (no) less 284 (wearing of clothing inscribed with a vulgar re- distracting to the passing motorist." Id., at 214-215, mark); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 95 S.Ct., at 2275. 1827, 23 L.Ed.2d 430 (utterance of racial slurs); or
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Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 79 cardinal principles of First Amendment *86 law, S.Ct. 1362, 3 L.Ed.2d 1512 (alluring portrayal of which require that time, place, and manner regula- adultery as proper behavior). tions that affect protected expression be content neut- ral except in the limited context of a captive or juven- FN1. Contrast Village of Belle Terre v. Bor- ile audience. [FN5] In place of these principles the aas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d Court invokes a concept wholly alien to the First 797, which upheld a zoning ordinance that Amendment. Since "few of us would march our sons restricted no substantive right guaranteed by and daughters off to war to preserve the citizen's right the Constitution. to see 'Specified Sexual Activities' exhibited in the theaters of our choice," Ante, at 2452, the Court im- FN2. Here, as in Police Dept. of Chicago v. plies that these films are not entitled to the full pro- Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 tection of the Constitution. This stands "Voltaire's L.Ed.2d 212, and Erznoznik v. City of Jack- immortal comment," Ibid., on its head. For if the sonville, 422 U.S. 205, 95 S.Ct. 2268, 45 guarantees of the First Amendment were reserved for L.Ed.2d 125, the State seeks to impose a se- expression that more than a "few of us" would take lective restraint on speech with a particular up arms to defend, then the right of free expression content. It is not all movie theaters which would be defined and circumscribed by current popu- must comply with Ordinances No. 742-G lar opinion. The guarantees of the Bill of Rights were and No. 743-G, but only those "used for designed to protect against precisely such majoritari- presenting material distinguished or charac- an limitations on individual liberty. [FN6] terized by an emphasis on matter depicting, describing or relating to 'Specified Sexual FN4. See, E. g., Terminiello v. Chicago, 337 Activities' or 'Specified Anatomical Areas' . U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. . . ." The ordinances thus " 'sli(p) from the 1131. neutrality of time, place, and circumstance into a concern about content.' This is never FN5. See, E. g., Hudgens v. NLRB, supra; permitted." Police Dept. of Chicago v. Mos- Erznoznik v. City of Jacksonville, supra; Po- ley, supra, 408 U.S., at 99, 92 S.Ct., at 2292 lice Dept. of Chicago v. Mosley, supra. This (citation omitted). See, E. g., Hudgens v. case does not involve state regulation nar- NLRB, 424 U.S. 507, 520, 96 S.Ct. 1029, rowly aimed at preventing objectionable 1037, 47 L.Ed.2d 196; Grayned v. City of communication from being thrust upon an Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, unwilling audience. See Erznoznik v. City of 2302, 33 L.Ed.2d 222. Jacksonville, supra, 422 U.S., at 209, 95 S.Ct., at 2272. Contrast Lehman v. City of FN3. The regulatory scheme contains no Shaker Heights, 418 U.S. 298, 94 S.Ct. provision for a judicial determination of ob- 2714, 41 L.Ed.2d 770; Rowan v. Post Office scenity. As the Court of Appeals correctly Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 held, the material displayed must therefore, L.Ed.2d 736. Nor is the Detroit ordinance be presumed to be fully protected by the narrowly aimed at protecting children from First Amendment. 518 F.2d 1014, 1019. exposure to sexually oriented displays that would not be judged obscene by adult stand- What this case does involve is the constitutional per- ards. Contrast Ginsberg v. New York, 390 missibility of selective interference with protected U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. speech whose content is thought to produce distaste- ful effects. It is **2460 elementary that a prime func- FN6. See, E. g., Terminiello v. Chicago, tion of the First Amendment is to guard against just supra, 337 U.S., at 4-5, 69 S.Ct., at 895-896. such interference. [FN4] By refusing to invalidate The Court stresses that Detroit's content- Detroit's ordinance the Court rides roughshod over based regulatory system does not preclude
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altogether the display of sexually oriented grates most unpleasantly against the sensibilities that films. But, as the Court noted in a similar judicial vigilance must be at its height. context in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 **2461 Heretofore, the Court has not shied from its L.Ed.2d 448, this is constitutionally irrelev- responsibility to protect "offensive" speech from gov- ant, for " 'one is not to have the exercise of ernmental interference. Just last Term in Erznoznik v. his liberty of expression in appropriate City of Jacksonville, supra, the Court held that a city places abridged on the plea that it may be could not, consistently with the First and Fourteenth exercised in some other place.' " Id., at 556, Amendments, make it a public nuisance for a drive-in 95 S.Ct., at 1245, quoting Schneider v. movie theater to show films containing nudity if the State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, screen were visible *88 from a public street or place. 84 L.Ed. 155. See also Interstate Circuit v. The factual parallels between that case and this one Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 are striking. There, as here, the ordinance did not for- L.Ed.2d 225; Bantam Books, Inc. v. Sulli- bid altogether the "distasteful" expression but merely van, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d required alteration in the physical setting of the for- 584. um. There, as here, the city's principal asserted in- terest was in minimizing the "undesirable" effects of *87 The fact that the "offensive" speech here may not speech having a particular content. And, most signi- address "important" topics "ideas of social and polit- ficantly, the particular content of the restricted speech ical significance," in the Court's terminology, Ante, at at issue in Erznoznik precisely parallels the content 2447 does not mean that it is less worthy of constitu- restriction embodied in s 1 of Detroit's definition of tional protection. "Wholly neutral futilities . . . come "Specified Anatomical Areas." Compare Jacksonville under the protection of free speech as fully as do Municipal Code s 330.313 with Detroit Ordinance Keats' poems or Donne's sermons." Winters v. New No. 742-G, s 32.0007. In short, Erznoznik is almost York, 333 U.S. 507, 528, 68 S.Ct. 665, 676, 92 L.Ed. on "all fours" with this case. 840 (Frankfurter, J., dissenting); accord, Cohen v. California, supra, 403 U.S., at 25, 91 S.Ct., at 1788. The Court must never forget that the consequences of Moreover, in the absence of a judicial determination rigorously enforcing the guarantees of the First of obscenity, it is by no means clear that the speech is Amendment are frequently unpleasant. Much speech not "important" even on the Court's terms. "(S)ex and that seems to be of little or no value will enter the obscenity are not synonymous. . . . The portrayal of market place of ideas, threatening the quality of our sex, E. g., in art, literature and scientific works, is not social discourse and, more generally, the serenity of itself sufficient reason to deny material the constitu- our lives. But that is the price to be paid for constitu- tional protection of freedom of speech and press. Sex, tional freedom. a great and mysterious motive force in human life, Mr. Justice BLACKMUN, with whom Mr. Justice has indisputably been a subject of absorbing interest BRENNAN, Mr. Justice STEWART, and Mr. Justice to mankind through the ages; it is one of the vital MARSHALL join, dissenting. problems of human interest and public concern." Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. I join Mr. Justice STEWART's dissent, and write sep- 1304, 1310, 1 L.Ed.2d 1498 (footnotes omitted). See arately to identify an independent ground on which, also Kingsley Pictures Corp. v. Regents, supra, 360 for me, the challenged ordinance is unconstitutional. U.S., at 688-689, 79 S.Ct., at 1365. That ground is vagueness.
I can only interpret today's decision as an aberration. I The Court is undoubtedly sympathetic, as am I, to the We should put ourselves for a moment in the shoes of well-intentioned efforts of Detroit to "clean up" its the motion picture exhibitor. Let us suppose that, streets and prevent the proliferation of "skid rows." having previously offered only a more innocuous But it is in those instances where protected speech
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fare, he *89 decides to vary it by exhibiting on cer- ter all these definitions. Some he will find very clear, tain days films from a series which occasionally deals of course; others less so. A neighboring bookstore is explicitly with sex. The exhibitor must determine "adult," for example, if a "substantial or significant whether this places h theater into the "adult" class portion of its stock in trade" is "distinguished or char- prescribed by the challenged ordinance. If the theater acterized" in the same way as the films shown in an is within that class, it must be licensed, and it may be "adult" theater. entirely prohibited, depending on its location. The exhibitor's compounded task of applying the stat- "Adult" status Vel non depends on whether the theat- utory definitions to himself and his neighbors, fur- er is "used for presenting" films that are "distin- thermore, is an ongoing one. At any moment he could guished or characterized by an emphasis on" certain become a violator of the ordinance because some specified activities, including sexual intercourse, or neighbor has slipped into a "regulated use" classifica- specified anatomical areas. [FN1] It will be simple tion. He must know, for example, if the adjacent enough, as the operator screens films, to tell when hotel has opened a bar or shoeshine "parlor" on the one of these areas or activities is being depicted, but premises, though he may still be uncertain whether if the depiction represents only a part of the films' the hotel as a whole constitutes more than one "regu- subject matter, I am at a loss to know how he will tell lated use." He must also know the moment when the whether they are "distinguished or characterized by stock in trade of neighboring bookstores and theaters an emphasis" on those areas and activities. The ordin- comes to be of such a character, and predominance, ance gives him no guidance. Neither does it instruct as to render them "adult." Lest he let down his guard, him on how to tell whether, assuming the films in he should remember that if he miscalculates on any question are thus "distinguished or characterized," his of these issues, he may pay a fine or go to jail. [FN2] theater is being "used for presenting" such films. That phrase could mean Ever used, Often used, or Pre- FN2. Official Zoning Ordinance of Detroit s dominantly used, to name a few possibilities. 69.000.
FN1. See Ante, 2443-2445, and nn. 3-7. I re- It would not be surprising if, under the circum- produce, or cite specifically to, only those stances, the exhibitor chose to forgo showing the film sections of the challenged ordinance that are series altogether. Such deterrence of protected First not set out in the Court's opinion. Amendment activity in the "gray area" of a statute's possible *91 coverage is, of course, one of the vices Let us assume the exhibitor concludes that the film of vagueness. A second is the tendency of vague stat- series will render his showhouse an "adult" theater. utory standards to grant excessive and effectively un- He still must determine whether the operation of the reviewable discretion to the officials who enforce theater is prohibited by virtue of there being two oth- those standards. That vice is also present here. It is er "regulated uses" within 1,000 feet. His task of de- present because the vague standards already de- termining whether his own theater is "adult" is sud- scribed are left to the interpretation and application of denly multiplied by however many neighbors he may law enforcement authorities. [FN3] It is introduced have that arguably are within that same class. He even more dangerously by the indefinite standards must, in other *90 words, know and **2462 evaluate under which city officials are empowered to grant or not only his own films, but those of any competitor deny licenses for "adult" theaters, and also waivers of within 1,000 feet. And neighboring theaters are not the 1,000-foot rule. [FN4] his only worry, since the list of regulated uses also in- cludes "adult" bookstores, "Group 'D' Cabaret(s)," FN3. A special opportunity for arbitrary or sellers of alcoholic beverages for consumption on the discriminatory application of the ordinance premises, hotels, motels, pawnshops, pool halls, pub- is apparently supplied by the operation of lic lodging houses, "secondhand stores," shoeshine the 1,000-foot rule. Presumably, only one of parlors, and "taxi dance halls." The exhitor must mas- three "regulated uses" within a 1,000-foot
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area must be eliminated in order for the re- common intelligence must necessarily guess at its maining two to become legal. For all that meaning." Connally v. General Constr. Co., 269 U.S. appears from the ordinance, the choice of 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). In which use to eliminate is left entirely to the Hynes we invalidated for its vagueness an ordinance enforcement authorities. that required "Civic Groups and Organizations," and also anyone seeking to "call from house to house . . . FN4. These two features of the ordinance for a recognized charitable . . . or . . . political cam- constitute prior restraints and are challenge- paign or cause," to register with the local police "for able on that ground alone. Cf. Southeastern identification only." We found it intolerably unclear Promotions, Ltd. v. Conrad, 420 U.S. 546, what "Groups and Organizations" were encompassed, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). what was meant by a "cause," and what was required Since, for me, the most glaring defect in the by way of "identification." I fail to see how a stat- operation of these restraints is the vagueness utory prohibition as difficult to understand and apply of the standards governing their applica- as the 1,000-foot rule for "adult" theaters can survive tions, however, only the vagueness point is if the ordinance in Hynes could not. pursued here. The vagueness in the licensing and waiver standards All "adult" theaters must be licensed, and licenses are of this ordinance is more pernicious still. The mayor's dispensed by the mayor. The ordinance does not spe- power to deny a license because of "flagrant disreg- cify the criteria for licensing, except in one respect. ard" for the "safety or welfare" of others is apparently The mayor is empowered to refuse an "adult" theater exercisable only over those who have committed license, or revoke it at any time, some *93 infraction within the previous two years, "upon proof submitted to him of the violation . . . , [FN5] but I do not see why even those persons should within the preceding two years, of any criminal be subject to standardless licensing discretion of pre- statute . . . or (zoning) ordinance . . . which evid- cisely the kind that this Court so many times has con- ences a flagrant disregard for the safety or welfare demned. See Shuttlesworth v. Birmingham, 394 U.S. of either the patrons, employees, or persons resid- 147, 89 S.Ct. 935, 22.Ed.2d 162 (1969); Staub v. City ing or doing business nearby." Code of Detroit s 5- of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 2-3. (1958); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Niemotko v. Maryland, *92 If the operation of an "adult" theater would viol- 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); ate the 1,000-foot rule, the exhibitor must obtain the Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 approval not only of the mayor but of the City Plan- L.Ed. 1574 (1948); Schneider v. State, 308 U.S. 147, ning Commission, which is empowered to waive the 163-164, 60 S.Ct. 146, 151- 152, 84 L.Ed. 155 rule. It may grant a waiver if it finds that the opera- (1939); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 tion of an "adult" theater, in addition to satisfying L.Ed. 1423 (1939); Lovell v. Griffin, 303 U.S. 444, several more definite criteria, "will not be contrary to 58 S.Ct. 666, 82 L.Ed. 949 (1938). For the exhibitor the public interest or injurious to nearby properties," who must obtain a waiver of the 1,000-foot rule, the or violative of "the spirit and intent" of the ordinance. City Planning Commission likewise functions effect- **2463 II ively as a censor, constrained only by its perception Just the other day, in Hynes v. Mayor of Oradell, 425 of the "public interest" and the "spirit and intent" of U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976), we the ordinance. This Court repeatedly has invalidated reaffirmed the principle that in the First Amendment such vague standards for prior approval of film ex- area " 'government may regulate . . . only with nar- hibitions. See Interstate Circuit v. Dallas, 390 U.S. row specificity,' " NAACP v. Button, 371 U.S. 415, 676, 683, 88 S.Ct. 1298, 1302, 20 L.Ed.2d 225 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), avoid- (1968), and cases cited. [FN6] Indeed, a standard ing the use of language that is so vague that "men of much like the waiver standard*94 in this case was the
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one found wanting in Gelling v. Texas, 343 U.S. 960, and definite standards." Niemotko v. Maryland, 340 72 S.Ct. 1002, 96 L.Ed. 1359 (1952) (censor could U.S., at 271, 71 S.Ct., at 327. This may be a permiss- ban films "of such character as to be prejudicial to the ible way to control pawnshops, pool halls, and the best interests of the people of said City"). other "regulated uses" for which the ordinance was originally designed. It is not an acceptable way, in the FN5. The ordinance empowers the mayor to light of the First Amendment's presence, to decide act "upon proof submitted to him of (a) viol- who will be permitted to exhibit what films in what ation." It is possible that he may entertain places. evidence not only of convictions but also of violations themselves, even though these III have not been otherwise adjudicated. The Court today does not really question these settled Whether legal infractions must be otherwise principles, or raise any doubt that if they were ap- adjudicated or not, the mayor clearly retains plied in this case, the challenged ordinance would not the power to revoke a license for "flagrant survive. The Court reasons, instead, that these prin- disregard," should infractions occur at any ciples need not be applied in this case because the time after the license's issuance. plaintiffs themselves are clearly within the ordin- ance's proscriptions, and thus not affected by its FN6. Interstate Circuit disposes of any argu- vagueness. Our usual practice, as the Court notes, is ment that excessively vague standards may to entertain facial challenges based on vagueness and be permitted here because the film exhibi- overbreadth by anyone subject to a statute's proscrip- tions are not banned entirely, but merely tion. The reasons given for departing *95 from this prohibited in a particular place. The ordin- practice are (1) that the ordinance will have no "signi- ance invalidated in Interstate Circuit re- ficant deterrent effect on the exhibition of films pro- quired exhibitors to submit films for official tected by the First Amendment"; (2) that the ordin- determination whether persons under 16 ance is easily susceptible of "a narrowing construc- should be excluded from the film exhibi- tion"; and (3) that "there is surely a less vital interest tions. It thus threatened the exhibitor with a in the uninhibited exhibition of material that is on the loss of only part of his audience. The effect borderline between pornography and artistic expres- of the present ordinance is more severe, sion than in the free dissemination of ideas of social since if the exhibitor has only one theater, he and political significance." Ante, at 2447. is completely foreclosed. See also South- eastern Promotions, Ltd. v. Conrad, 420 As to the first reason, I disagree on the facts, as is U.S., at 556 n. 8, 95 S.Ct., at 1245. clear from the initial section of this opinion. [FN7] As to the second, no easy "narrowing construction" is It is true that the mayor and the Planning Commis- proposed, and I doubt that one exists, particularly sion review the applications of theaters, rather than since (due to the operation of the 1,000-foot rule) not individual films. It might also be argued that at least only the "used for presenting" and "characterized by if they adhere to the "spirit and intent" of the ordin- an emphasis" language relating to "adult" theaters, ance, their principal concern will be **2464 with the and the "flagrant disregard" and "public interest" lan- blighting of the cityscape, rather than that of the guage of the licensing and waiver provisions, but also minds of their constituents. But neither of these as- the definitions of Other regulated uses must all be re- pects of the case alters its basic and dispositive facts: duced to specificity. See also Hynes v. Mayor of persons seeking to exhibit "adult," but protected, Oradell, 425 U.S., at 622, 96 S.Ct., at 1761. ("we are films must secure, in many cases, the prior approval without power to remedy the (vagueness) defects by of the mayor and City Planning Commission; they in- giving the ordinance constitutionally precise con- evitably will make their decisions by reference to the tent"). content of the proposed exhibitions; they are not con- strained in doing so by "narrowly drawn, reasonable FN7. In Erznoznik v. City of Jacksonville,
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422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d American Civil Liberties Union and the American 125 (1975), the case on which the Court re- Civil Liberties Union of Michigan for Leave to File a lies for the proposition that only statutes Brief Amici Curiae, and Brief Amici Curiae (Jan. 06, having a "significant deterrent effect" may 1976) be facially challenged, such an effect in fact was found to exist. The ordinance there at • 1976 WL 194126 (Appellate Brief) Motion of the issue prohibited drive-in theaters from ex- American Civil Liberties Union and the American hibiting films in which nude parts of the hu- Civil Liberties Union of Michigan for Leave to File a man body would be "visible from any public Brief Amici Curiae, and Brief Amici Curiae (Jan. 06, street or public place." We perceived a "real 1976) and substantial" deterrent effect in the "un- • 1976 WL 181748 (Appellate Brief) Motion for welcome choice" to which the ordinance put Leave to File Brief Amicus Curiae and Brief of Mo- exhibitors: "either (to) restrict their movie tion Picture Association of America, Inc. as Amicus offerings or construct adequate protective Curiae (Jan. 05, 1976) fencing which may be extremely expensive or even physically impracticable." Id., at • 1976 WL 194125 (Appellate Brief) Brief of Re- 217, 95 S.Ct., at 2277. In the present case spondents American Mini Theatres, Inc. and Pussy the second horn of the dilemma is even Cat Theatres of Michigan, Inc. (Jan. 02, 1976) sharper: the construction (or acquisition) of an entirely new theater. • 1975 WL 173868 (Appellate Brief) Brief for Re- spondent Nortown Theatre, Inc (Dec. 31, 1975) *96 As the third reason, that "adult" material is simply entitled to less protection, it certainly explains • 1975 WL 173867 (Appellate Brief) Brief of Peti- the lapse in applying settled vagueness principles, as tioners (Dec. 03, 1975) indeed it explains this whole case. In joining Mr. Justice STEWART I have joined his forthright rejec- • 1975 WL 173866 (Appellate Brief) Supplemental tion of the notion that First Amendment protection is Brief and Reply Brief of Petitioners (Oct. 07, 1975) diminished for "erotic materials" that only a "few of • 1975 WL 173869 (Appellate Brief) Brief of Re- us" see the need to protect. spondents American Mini Theatres, Inc. and Pussy We should not be swayed in this case by the charac- Cat Theatres of Michigan, Inc (Oct. Term 1975) terization of the challenged ordinance as merely a END OF DOCUMENT "zoning" regulation, or by the "adult" nature of the affected material. By whatever name, this ordinance prohibits the showing of certain films in certain places, imposing criminal sanctions **2465 for viola- tion of the ban. And however distasteful we may sus- pect the films to be, we cannot approve their suppres- sion without any judicial finding that they are ob- scene under this Court's carefully delineated and con- sidered standards.
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Briefs and Other Related Documents (Back to top)
• 1976 WL 181747 (Appellate Brief) Motion of the
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92k90.4(3) Most Cited Cases
Briefs and Other Related Documents [1] Constitutional Law 90.4(5) 92k90.4(5) Most Cited Cases Supreme Court of the United States Totally nude dancing as sought to be performed in Michael BARNES, Prosecuting Attorney of St. lounge presenting "go-go dancing," and in adult Joseph County, Indiana, et al. "bookstore," was expressive conduct within the outer v. perimeters of the First Amendment, although only GLEN THEATRE, INC., et al. marginally so. (Per Chief Justice Rehnquist, with two No. 90-26. Justices concurring, and two Justices concurring in the judgment.) U.S.C.A. Const.Amend. 1. Argued Jan. 8, 1991. Decided June 21, 1991. [2] Constitutional Law 90(3) 92k90(3) Most Cited Cases Establishments wishing to provide totally nude dan- Government regulation of expressive conduct is suf- cing as entertainment and individual dancers em- ficiently justified if it is within the constitutional ployed at establishments brought suit to enjoin en- power of the government, if it furthers an important forcement of Indiana public indecency statute which or substantial governmental interest, if the govern- required dancers to wear pasties and a G-string, as- mental interest is unrelated to suppression of free ex- serting that statute violated the First Amendment. pression, and if the incidental restriction on alleged The United States District Court for the Northern First Amendment freedoms is not greater than is es- District of Indiana, 726 F.Supp. 728, permanently en- sential to furtherance of that interest. (Per Chief joined enforcement. The Court of Appeals for the Justice Rehnquist, with two Justices concurring, and Seventh Circuit, 802 F.2d 287, reversed and re- two Justices concurring in the judgment.) U.S.C.A. manded. On remand, the District Court, 695 F.Supp. Const.Amend. 1. 414, found that nude dancing in question was not protected by the First Amendment. On appeal, the [3] Constitutional Law 90.4(3) Court of Appeals, 887 F.2d 826, reversed and re- 92k90.4(3) Most Cited Cases manded. Opinion was vacated and rehearing en banc granted. The Court of Appeals, 904 F.2d 1081, [3] Obscenity 2.5 reversed. After granting certiorari, the Supreme 281k2.5 Most Cited Cases Court, Chief Justice Rehnquist, held that enforcement Enforcement of Indiana's public indecency law to re- of public indecency statute to require that dancers at quire nude dancers in adult entertainment establish- adult entertainment establishments wear pasties and a ments to wear pasties and any G-string did not violate G-string did not violate the First Amendment. the First Amendment's guarantee of freedom of ex- pression; statute was clearly within state's constitu- Reversed. tional power, it furthered substantial governmental interest in protecting societal order and morality, Justices Scalia and Souter filed opinions concurring governmental interest was unrelated to suppression of in the judgment. free expression, and incidental restriction on First Justice White filed dissenting opinion, in which Amendment freedom was no greater than was essen- Justices Marshall, Blackmun, and Stevens joined. tial to furtherance of the governmental interest. (Per Chief Justice Rehnquist, with two Justices concur- West Headnotes ring, and two Justices concurring in the judgment.) West's A.I.C. 35- 45-4-1; U.S.C.A. Const.Amend. 1. [1] Constitutional Law 90.4(3) **2457 *560 Syllabus [FN*]
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FN* The syllabus constitutes no part of the interest in protecting societal order and morality. opinion of the Court but has been prepared Public indecency statutes reflect moral disapproval of by the Reporter of Decisions for the con- people appearing in the nude among strangers in pub- venience of the reader. See United States v. lic places, and this particular law follows a line of Detroit Lumber Co., 200 U.S. 321, 337, 26 state laws, dating back to 1831, banning public nud- S.Ct. 282, 287, 50 L.Ed. 499. ity. The States' traditional police power is defined as Respondents, two Indiana establishments wishing to the authority to provide for the public health, safety, provide totally nude dancing as entertainment and in- and morals, and such a basis for legislation *561 has dividual dancers employed at those establishments, been upheld. See, e.g., Paris Adult Theatre I v. brought suit in the District Court to enjoin enforce- Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, 2637, 37 ment of the state public indecency law--which re- L.Ed.2d 446. This governmental interest is unrelated quires respondent dancers to wear pasties and G- to the suppression of free expression, since public strings--asserting that the law's prohibition against nudity is the evil the State seeks to prevent, whether total nudity in public places violates the First Amend- or not it is combined with expressive activity. The ment. The court held that the nude dancing involved law does not proscribe nudity in these establishments here was not expressive conduct. The Court of Ap- because the dancers are conveying an erotic mes- peals reversed, ruling that nonobscene nude dancing sage. To the contrary, an erotic performance may be performed for entertainment is protected expression, presented without **2458 any state interference, so and that the statute was an improper infringement of long as the performers wear a scant amount of cloth- that activity because its purpose was to prevent the ing. Finally, the incidental restriction on First message of eroticism and sexuality conveyed by the Amendment freedom is no greater than is essential to dancers. the furtherance of the governmental interest. Since the statutory prohibition is not a means to some great- Held: The judgment is reversed. er end, but an end itself, it is without cavil that the statute is narrowly tailored. Pp. 2460-2463. 904 F.2d 1081 (CA9 1990), reversed. Justice SCALIA concluded that the statute--as a gen- The Chief Justice, joined by Justice O'CONNOR and eral law regulating conduct and not specifically direc- Justice KENNEDY, concluded that the enforcement ted at expression, either in practice or on its face--is of Indiana's public indecency law to prevent totally not subject to normal First Amendment scrutiny and nude dancing does not violate the First Amendment's should be upheld on the ground that moral opposition guarantee of freedom of expression. Pp. 2460-2463. to nudity supplies a rational basis for its prohibition. (a) Nude dancing of the kind sought to be performed Cf. Employment Div., Dept. of Human Resources of here is expressive conduct within the outer perimeters Ore. v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 of the First Amendment, although only marginally L.Ed.2d 876. There is no intermediate level of scru- so. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. tiny requiring that an incidental restriction on expres- 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d 648. P. sion, such as that involved here, be justified by an 2460. important or substantial governmental interest. Pp. 2463-2467. (b) Applying the four-part test of United States v. O'Brien, 391 U.S. 367, 376-377, 88 S.Ct. 1673, Justice SOUTER, agreeing that the nude dancing at 1678-1679, 20 L.Ed.2d 672--which rejected the con- issue here is subject to a degree of First Amendment tention that symbolic speech is entitled to full First protection, and that the test of United States v. Amendment protection--the statute is justified despite O'Brien, 391 U.S. 367, 88 S.Ct. 1673, is the appropri- its incidental limitations on some expressive activ- ate analysis to determine the actual protection re- ity. The law is clearly within the State's constitution- quired, concluded that the State's interest in prevent- al power. And it furthers a substantial governmental ing the secondary effects of adult entertainment es- tablishments--prostitution, sexual assaults, and other
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criminal activity--is sufficient under O'Brien to justi- Ballentine, Acting Attorney General of the Virgin Is- fy the law's enforcement against nude dancing. The lands; for the American Family Association, Inc., et prevention of such effects clearly falls within the al. by Alan E. Sears, James Mueller, and Peggy M. State's constitutional power. In addition, the asserted Coleman; and for the National Governors' Associ- interest is plainly substantial, and the State could ation et al. by Benna Ruth Solomon and Peter Bus- have concluded that it is furthered by a prohibition on cemi. nude dancing, even without localized proof of the harmful effects. See Renton v. Playtime Theatres, Briefs of amici curiae urging affirmance were filed Inc., 475 U.S. 41, 50, 51, 106 S.Ct. 925, 930, 930, 89 for the American Civil Liberties Union et al. by L.Ed.2d 29. Moreover, the interest is unrelated to Spencer Neth, Thomas D. Buckley, Jr., Steven R. Sha- the suppression of free expression, since the perni- piro, and John A. Powell; for the Georgia on Premise cious effects are merely associated with nude dancing & Lounge Association, Inc., by James A. Walrath; establishments and are not the result of the expres- for People for the American Way et al. by Timothy B. sion inherent in nude dancing. Id., at 48, 106 S.Ct., at Dyk, Robert H. Klonoff, Patricia A. Dunn, Elliot M. 929. Finally, the restriction is no greater than is es- Mincberg, Stephen F. Rohde, and Mary D. Dorman. sential to further the governmental interest, since pas- James J. Clancy filed a brief pro se as amicus curiae. ties and a G-string moderate expression to a minor degree when measured against the dancer's remaining Chief Justice REHNQUIST delivered the opinion of capacity and opportunity to express an erotic mes- the Court. sage. Pp. 2468-2471. Respondents are two establishments in South Bend, *562 REHNQUIST, C.J., announced the judgment of Indiana, that wish to provide totally nude dancing as the Court and delivered an opinion, in which entertainment, and individual dancers who are em- O'CONNOR and KENNEDY, JJ., joined. SCALIA, ployed at these *563 establishments. They claim J., post, p. 2463, and SOUTER, J., post, p. 2468, filed that the First Amendment's guarantee of freedom of opinions concurring in the judgment. WHITE, J., expression prevents the State of Indiana from enfor- filed a dissenting opinion, in which MARSHALL, cing its public indecency law to prevent this form of BLACKMUN, and STEVENS, JJ., joined, post, p. dancing. We reject their claim. 2471. The facts appear from the pleadings and findings of Wayne E. Uhl, Deputy Attorney General of Indiana, the District Court and are uncontested here. The argued the cause for petitioners. With him on the Kitty Kat Lounge, Inc. (Kitty Kat), is located in the briefs was Linley E. Pearson, Attorney General. city of South Bend. It sells alcoholic beverages and presents "go-go dancing." Its proprietor desires to Bruce J. Ennis, Jr., argued the cause for respondents. present "totally nude dancing," but an applicable In- Lee J. Klein and Bradley J. Shafer filed a brief for re- diana statute regulating public nudity requires that the spondents Glen Theatre, Inc., et al. Patrick Louis dancers wear "pasties" **2459 and "G-strings" when Baude and Charles A. Asher filed a brief for respond- they dance. The dancers are not paid an hourly ents Darlene Miller et al.* wage, but work on commission. They receive a 100 *Briefs of amici curiae urging reversal were filed for percent commission on the first $60 in drink sales the State of Arizona et al. by Robert K. Corbin, At- during their performances. Darlene Miller, one of torney General of Arizona, and Steven J. Twist, Chief the respondents in the action, had worked at the Kitty Assistant Attorney General, Clarine Nardi Riddle, Kat for about two years at the time this action was Attorney General of Connecticut, and John J. Kelly, brought. Miller wishes to dance nude because she Chief State's Attorney, William L. Webster, Attorney believes she would make more money doing so. General of Missouri, Lacy H. Thornburg, Attorney Respondent Glen Theatre, Inc., is an Indiana corpora- General of North Carolina, and Rosalie Simmonds tion with a place of business in South Bend. Its
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primary business is supplying so-called adult enter- nonobscene nude dancing performed for entertain- tainment through written and printed materials, ment is expression protected by the First Amend- movie showings, and live entertainment at an en- ment, and that the public indecency statute was an closed "bookstore." The live entertainment at the improper infringement of that expressive activity be- "bookstore" consists of nude and seminude perform- cause its purpose was to prevent the message of eroti- ances and showings of the female body through glass cism and sexuality conveyed by the dancers. Miller panels. Customers sit in a booth and insert coins in- v. Civil City of South Bend, 904 F.2d 1081 (1990). to a timing mechanism that permits them to observe We granted certiorari, 498 U.S. 807, 111 S.Ct. 38, the live nude and seminude dancers for a period of 112 L.Ed.2d 15 (1990), and now hold that the Indiana time. One of Glen Theatre's dancers, Gayle Ann statutory requirement that the dancers in the estab- Marie Sutro, has danced, modeled, and acted profes- lishments involved in this case must wear pasties and sionally for more than 15 years, and in addition to her G-strings does not violate the First Amendment. performances at the Glen Theatre, can be seen in a pornographic movie at a nearby theater. App. to Pet. FN1. The Indiana Supreme Court appeared for Cert. 131-133. to give the public indecency statute a limit- ing construction to save it from a facial Respondents sued in the United States District Court overbreadth attack: for the Northern District of Indiana to enjoin the en- "There is no right to appear nude in public. forcement of the Indiana public indecency statute, Rather, it may be constitutionally required to *564Ind.Code § 35-45-4-1 (1988), asserting that its tolerate or to allow some nudity as a part of prohibition against complete nudity in public places some larger form of expression meriting violated the First Amendment. The District Court protection, when the communication of originally granted respondents' prayer for an injunc- ideas is involved." State v. Baysinger, 272 tion, finding that the statute was facially overbroad. Ind. 236, 247, 397 N.E.2d 580, 587 (1979) The Court of Appeals for the Seventh Circuit re- (emphasis added), appeals dism'd sub nom. versed, deciding that previous litigation with respect Clark v. Indiana, 446 U.S. 931, 100 S.Ct. to the statute in the Supreme Court of Indiana and 2146, 64 L.Ed.2d 783, and Dove v. Indiana, this Court precluded the possibility of such a chal- 449 U.S. 806, 101 S.Ct. 52, 66 L.Ed.2d 10 lenge, [FN1] and remanded to the District Court in (1980). Five years after Baysinger, however, order for the plaintiffs to pursue their claim that the the Indiana Supreme Court reversed a de- statute violated the First Amendment as applied to cision of the Indiana Court of Appeals hold- their dancing. Glen Theatre, Inc. v. Pearson, 802 ing that the statute did "not apply to activity F.2d 287, 288-290 (1986). On remand, the District such as the theatrical appearances involved Court concluded that *565 "the type of dancing these herein, which may not be prohibited absent a plaintiffs wish to perform is not expressive activity finding of obscenity," in a case involving a protected by the Constitution of the United States," partially nude dance in the "Miss Erotica of and rendered judgment in favor of the defendants. Fort Wayne" contest. Erhardt v. State, 468 Glen Theatre, Inc. v. Civil City of South Bend, 695 N.E.2d 224 (Ind.1984). The Indiana Su- F.Supp. 414, 419 (1988). The case was again ap- preme Court did not discuss the constitution- pealed to the Seventh Circuit, and a panel of that al issues beyond a cursory comment that the court reversed the District Court, holding that the statute had been upheld against constitution- nude dancing involved here was expressive conduct al attack in Baysinger, and Erhardt's conduct protected by the First Amendment. **2460 Miller v. fell within the statutory prohibition. Justice Civil City of South Bend, 887 F.2d 826 (1989). The Hunter dissented, arguing that "a public in- Court of Appeals then heard the case en banc, and the decency statute which prohibits nudity in court rendered a series of comprehensive and any public place is unconstitutionally over- thoughtful opinions. The majority concluded that broad. My reasons for so concluding have
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already been articulated in State v. Baysing- and there are no nonconsenting viewers. Respond- er, (1979) 272 Ind. 236, 397 N.E.2d 580 ents contend that while the State may license estab- (Hunter and DeBruler, JJ., dissenting)." 468 lishments such as the ones involved here, and limit N.E.2d at 225-226. Justice DeBruler ex- the geographical area in which they do business, it pressed similar views in his dissent in Er- may not in any way limit the performance of the hardt. Id., at 226. Therefore, the Indiana dances within them without violating the First Supreme Court did not affirmatively limit Amendment. The petitioners contend, on the other the reach of the statute in Baysinger, but hand, that Indiana's restriction on nude dancing is a merely said that to the extent the First valid "time, place, or manner" restriction under cases Amendment would require it, the statute such as Clark v. Community for Creative Non- might be unconstitutional as applied to some Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d activities. 221 (1984).
[1] Several of our cases contain language suggesting The "time, place, or manner" test was developed for that nude dancing of the kind involved here is ex- evaluating restrictions on expression taking place on pressive conduct protected by the First Amendment. public property which had been dedicated as a "pub- In Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 lic forum," Ward v. Rock Against Racism, 491 U.S. S.Ct. 2561, 2568, 45 L.Ed.2d 648 (1975), we said: 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 "[A]lthough the customary 'barroom' type of nude (1989), although we have on at least one occasion ap- dancing may involve only the barest minimum of plied it to conduct occurring on private property. protected expression, we recognized in California v. See Renton v. Playtime Theatres, Inc., 475 U.S. 41, LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). In Clark we ob- L.Ed.2d 342 (1972), that this form of entertainment served that this test has been interpreted to embody might be entitled to First and Fourteenth Amendment much the same standards as those set forth in United protection under some circumstances." In Schad v. States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 Mount Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, L.Ed.2d 672 (1968), and we turn, therefore, to the 2181, 68 L.Ed.2d 671 (1981), we said that rule enunciated in O'Brien. "[f]urthermore, as the state courts in this case recog- nized, nude dancing is not without its First Amend- [2] O'Brien burned his draft card on the steps of the ment protections from official regulation" (citations South Boston Courthouse in the presence of a sizable omitted). These statements support the conclusion crowd, and *567 was convicted **2461 of violating a of the Court of Appeals *566 that nude dancing of statute that prohibited the knowing destruction or mu- the kind sought to be performed here is expressive tilation of such a card. He claimed that his convic- conduct within the outer perimeters of the First tion was contrary to the First Amendment because his Amendment, though we view it as only marginally act was "symbolic speech"-- expressive conduct. so. This, of course, does not end our inquiry. We The Court rejected his contention that symbolic must determine the level of protection to be afforded speech is entitled to full First Amendment protection, to the expressive conduct at issue, and must determ- saying: ine whether the Indiana statute is an impermissible "[E]ven on the assumption that the alleged commu- infringement of that protected activity. nicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not Indiana, of course, has not banned nude dancing as necessarily follow that the destruction of a registra- such, but has proscribed public nudity across the tion certificate is constitutionally protected activ- board. The Supreme Court of Indiana has construed ity. This Court has held that when 'speech' and the Indiana statute to preclude nudity in what are es- 'nonspeech' elements are combined in the same sentially places of public accommodation such as the course of conduct, a sufficiently important govern- Glen Theatre and the Kitty Kat Lounge. In such mental interest in regulating the nonspeech element places, respondents point out, minors are excluded can justify incidental limitations on First Amend-
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ment freedoms. To characterize the quality of the enacted as a general prohibition. At least as early as governmental interest which must appear, the 1831, Indiana had a statute punishing "open and no- Court has employed a variety of descriptive torious lewdness, or ... any grossly scandalous and terms: compelling; substantial; subordinat- public indecency." Rev.Laws of Ind., ch. 26, § 60 ing; paramount; cogent; strong. Whatever im- (1831); Ind.Rev.Stat., ch. 53, § 81 (1834). A gap precision inheres in these terms, we think it clear during which no statute was in effect was filled by that a government regulation is sufficiently justi- the Indiana Supreme Court in Ardery v. State, 56 Ind. fied if it is within the constitutional power of the 328 (1877), which held that the court could sustain a Government; if it furthers an important or substan- conviction for exhibition of "privates" in the presence tial governmental interest; if the governmental in- of others. The court traced the offense to the Bible terest is unrelated to the suppression of free expres- story of Adam and Eve. Id., at 329-330. In 1881, a sion; and if the incidental restriction on alleged statute was enacted that would remain essentially un- First Amendment freedoms is no greater than is es- changed for nearly a century: sential to the furtherance of that interest." Id., at "Whoever, being over fourteen years of age, makes 376-377, 88 S.Ct., at 1678-1679 (footnotes omit- an indecent exposure of his person in a public ted). place, or in any place where there are other persons to be offended or annoyed thereby, ... is guilty of [3] Applying the four-part O'Brien test enunciated **2462 public indecency...." 1881 Ind.Acts, ch. 37, above, we find that Indiana's public indecency statute § 90. is justified despite its incidental limitations on some *569 The language quoted above remained un- expressive activity. The public indecency statute is changed until it was simultaneously repealed and re- clearly within the constitutional power of the State placed with the present statute in 1976. 1976 and furthers substantial governmental interests. It is Ind.Acts, Pub.L. 148, Art. 45, ch. 4, § 1. [FN2] impossible to discern, other than from the text of the statute, exactly what governmental interest the Indi- FN2. Indiana Code § 35-45-4-1 (1988) ana legislators had in mind when they enacted *568 provides: this statute, for Indiana does not record legislative "Public indecency; indecent exposure "Sec. history, and the State's highest court has not shed ad- 1. (a) A person who knowingly or intention- ditional light on the statute's purpose. Nonetheless, ally, in a public place: the statute's purpose of protecting societal order and "(1) engages in sexual intercourse; morality is clear from its text and history. Public in- "(2) engages in deviate sexual conduct; decency statutes of this sort are of ancient origin and "(3) appears in a state of nudity; or presently exist in at least 47 States. Public inde- "(4) fondles the genitals of himself or anoth- cency, including nudity, was a criminal offense at er person; common law, and this Court recognized the common- commits public indecency, a Class A misde- law roots of the offense of "gross and open inde- meanor. cency" in Winters v. New York, 333 U.S. 507, 515, 68 "(b) 'Nudity' means the showing of the hu- S.Ct. 665, 670, 92 L.Ed. 840 (1948). Public nudity man male or female genitals, pubic area, or was considered an act malum in se. Le Roy v. Sidley, buttocks with less than a fully opaque cover- 1 Sid. 168, 82 Eng.Rep. 1036 (K.B.1664). Public in- ing, the showing of the female breast with decency statutes such as the one before us reflect less than a fully opaque covering of any part moral disapproval of people appearing in the nude of the nipple, or the showing of the covered among strangers in public places. male genitals in a discernibly turgid state."
This public indecency statute follows a long line of This and other public indecency statutes were de- earlier Indiana statutes banning all public nudity. signed to protect morals and public order. The tradi- The history of Indiana's public indecency statute tional police power of the States is defined as the au- shows that it predates barroom nude dancing and was thority to provide for the public health, safety, and
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morals, and we have upheld such a basis for legisla- in recreational dancing-- is not protected by the tion. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, First Amendment." Id., at 25, 109 S.Ct., at 1595. 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 (1973), we said: Respondents contend that even though prohibiting "In deciding Roth [v. United States, 354 U.S. 476 nudity in public generally may not be related to sup- [77 S.Ct. 1304, 1 L.Ed.2d 1498] (1957) ], this pressing expression, prohibiting the performance of Court implicitly accepted that a legislature could nude dancing is related to expression because the legitimately act on such a conclusion to protect 'the State seeks to prevent its erotic message. Therefore, social interest in order and morality.' [Id.], at 485 they reason that the application of the Indiana statute [77 S.Ct., at 1309]." (Emphasis omitted.) to the nude dancing in this case violates the First And in Bowers v. Hardwick, 478 U.S. 186, 196, 106 Amendment, because it fails the third part of the S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986), we said: O'Brien test, viz: **2463 the governmental interest "The law, however, is constantly based on notions must be unrelated to the suppression of free expres- of morality, and if all laws representing essentially sion. moral choices are to be invalidated under the Due But we do not think that when Indiana applies its Process Clause, the courts will be very busy in- statute to the nude dancing in these nightclubs it is deed." proscribing nudity because of the erotic message con- Thus, the public indecency statute furthers a substan- veyed by the dancers. *571 Presumably numerous tial government interest in protecting order and mor- other erotic performances are presented at these es- ality. tablishments and similar clubs without any interfer- ence from the State, so long as the performers wear a *570 This interest is unrelated to the suppression of scant amount of clothing. Likewise, the requirement free expression. Some may view restricting nudity that the dancers don pasties and G-strings does not on moral grounds as necessarily related to expres- deprive the dance of whatever erotic message it con- sion. We disagree. It can be argued, of course, that veys; it simply makes the message slightly less almost limitless types of conduct--including appear- graphic. The perceived evil that Indiana seeks to ad- ing in the nude in public--are "expressive," and in one dress is not erotic dancing, but public nudity. The sense of the word this is true. People who go about appearance of people of all shapes, sizes and ages in in the nude in public may be expressing something the nude at a beach, for example, would convey little about themselves by so doing. But the court rejected if any erotic message, yet the State still seeks to pre- this expansive notion of "expressive conduct" in vent it. Public nudity is the evil the State seeks to O'Brien, saying: prevent, whether or not it is combined with express- "We cannot accept the view that an apparently lim- ive activity. itless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct in- This conclusion is buttressed by a reference to the tends thereby to express an idea." 391 U.S., at 376, facts of O'Brien. An Act of Congress provided that 88 S.Ct., at 1678. anyone who knowingly destroyed a Selective Service registration certificate committed an offense. And in Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. O'Brien burned his certificate on the steps of the 1591, 104 L.Ed.2d 18 (1989), we further observed: South Boston Courthouse to influence others to adopt "It is possible to find some kernel of expression in his antiwar beliefs. This Court upheld his convic- almost every activity a person undertakes--for ex- tion, reasoning that the continued availability of is- ample, walking down the street or meeting one's sued certificates served a legitimate and substantial friends at a shopping mall--but such a kernel is not purpose in the administration of the Selective Service sufficient to bring the activity within the protection System. O'Brien's deliberate destruction of his certi- of the First Amendment. We think the activity of ficate frustrated this purpose and "[f]or this noncom- these dance-hall patrons coming together to engage municative impact of his conduct, and for nothing
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else, he was convicted." 391 U.S., at 382, 88 S.Ct., at commits public indecency, a Class A misdemean- 1682. It was assumed that O'Brien's act in burning or. the certificate had a communicative element in it suf- **2464 "(b) 'Nudity' means the showing of the hu- ficient to bring into play the First Amendment, id., at man male or female genitals, pubic area, or but- 376, 88 S.Ct., at 1682, but it was for the noncommu- tocks with less than a fully opaque covering, the nicative element that he was prosecuted. So here showing of the female breast with less than a fully with the Indiana statute; while the dancing to which opaque covering of any part of the nipple, or the it was applied had a communicative element, it was showing of covered male genitals in a discernibly not the dancing that was prohibited, but simply its be- turgid state." Ind.Code § 35-45-4-1 (1988). ing done in the nude. On its face, this law is not directed at expression in particular. As Judge Easterbrook put it in his dissent The fourth part of the O'Brien test requires that the below: "Indiana *573 does not regulate dancing. It incidental restriction on First Amendment freedom be regulates public nudity.... Almost the entire domain no greater than is essential to the furtherance of the of Indiana's statute is unrelated to expression, unless governmental interest. As indicated in the discus- we view nude beaches and topless hot dog vendors as sion above, the *572 governmental interest served by speech." Miller v. Civil City of South Bend, 904 F.2d the text of the prohibition is societal disapproval of 1081, 1120 (CA7 1990). The intent to convey a nudity in public places and among strangers. The "message of eroticism" (or any other message) is not statutory prohibition is not a means to some greater a necessary element of the statutory offense of public end, but an end in itself. It is without cavil that the indecency; nor does one commit that statutory of- public indecency statute is "narrowly fense by conveying the most explicit "message of tailored"; Indiana's requirement that the dancers eroticism," so long as he does not commit any of the wear at least pasties and G-strings is modest, and the four specified acts in the process. [FN1] bare minimum necessary to achieve the State's pur- pose. FN1. Respondents assert that the statute can- not be characterized as a general regulation The judgment of the Court of Appeals accordingly is of conduct, unrelated to suppression of ex- pression, because one defense put forward in Reversed. oral argument below by the attorney general Justice SCALIA, concurring in the judgment. referred to the "message of eroticism" con- veyed by respondents. But that argument I agree that the judgment of the Court of Appeals seemed to go to whether the statute could must be reversed. In my view, however, the chal- constitutionally be applied to the present lenged regulation must be upheld, not because it sur- performances, rather than to what was the vives some lower level of First Amendment scrutiny, purpose of the legislation. Moreover, the but because, as a general law regulating conduct and State's argument below was in the alternat- not specifically directed at expression, it is not sub- ive: (1) that the statute does not implicate ject to First Amendment scrutiny at all. the First Amendment because it is a neutral rule not directed at expression, and (2) that I the statute in any event survives First Indiana's public indecency statute provides: Amendment scrutiny because of the State's "(a) A person who knowingly or intentionally, in a interest in suppressing nude barroom dan- public place: cing. The second argument can be claimed "(1) engages in sexual intercourse; to contradict the first (though I think it does "(2) engages in deviate sexual conduct; not); but it certainly does not waive or "(3) appears in a state of nudity; or abandon it. In any case, the clear purpose "(4) fondles the genitals of himself or another per- shown by both the text and historical use of son;
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the statute cannot be refuted by a litigating 587 (1979). I am not sure that theater statement in a single case. versus nontheater represents a distinction based on content rather than format, but as- Indiana's statute is in the line of a long tradition of suming that it does, the argument nonethe- laws against public nudity, which have never been less fails for the reason the plurality de- thought to run afoul of traditional understanding of scribes, ante, at 2459, n. 1. "the freedom of speech." Public indecency- -including public nudity--has long been an offense at **2465 The dissent confidently asserts, post, at 2473, common law. See 50 Am.Jur.2d, Lewdness, Inde- that the purpose of restricting nudity in public places cency, and Obscenity 449, 472-474 (1970); Annot., in general is to protect nonconsenting parties from of- Criminal offense predicated on indecent exposure, 93 fense; and argues that since only consenting, admis- A.L.R. 996, 997-998 (1934); Winters v. New York, sion-paying patrons see respondents dance, that pur- 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840 pose cannot apply and the only remaining purpose (1948). Indiana's first public nudity statute, Rev. must relate to the communicative elements of the per- Laws of Ind., ch. 26, § 60 (1831), predated by many formance. Perhaps the dissenters believe that "of- years the appearance of nude barroom dancing. It fense to others" ought to be the only reason for re- was general in scope, directed at all public nudity, stricting nudity in public places generally, but there is and not just at public nude expression; and all suc- no *575 basis for thinking that our society has ever ceeding statutes, down to *574 the present one, have shared that Thoreauvian "you - may - do - what - you been the same. Were it the case that Indiana in prac- - like - so - long - as - it - does - not - injure - tice targeted only expressive nudity, while turning a someone -else" beau ideal--much less for thinking blind eye to nude beaches and unclothed purveyors of that it was written into the Constitution. The pur- hot dogs and machine tools, see Miller, 904 F.2d, at pose of Indiana's nudity law would be violated, I 1120, 1121, it might be said that what posed as a reg- think, if 60,000 fully consenting adults crowded into ulation of conduct in general was in reality a regula- the Hoosier Dome to display their genitals to one an- tion of only communicative conduct. Respondents other, even if there were not an offended innocent in have adduced no evidence of that. Indiana officials the crowd. Our society prohibits, and all human so- have brought many public indecency prosecutions for cieties have prohibited, certain activities not because activities having no communicative element. See they harm others but because they are considered, in Bond v. State, 515 N.E.2d 856, 857 (Ind.1987); In re the traditional phrase, "contra bonos mores," i.e., im- Levinson, 444 N.E.2d 1175, 1176 (Ind.1983); Preston moral. In American society, such prohibitions have v. State, 259 Ind. 353, 354-355, 287 N.E.2d 347, 348 included, for example, sadomasochism, cockfighting, (1972); Thomas v. State, 238 Ind. 658, 659-660, 154 bestiality, suicide, drug use, prostitution, and sod- N.E.2d 503, 504- 505 (1958); Blanton v. State, 533 omy. While there may be great diversity of view on N.E.2d 190, 191 (Ind.App.1989); Sweeney v. State, whether various of these prohibitions should exist 486 N.E.2d 651, 652 (Ind.App.1985); Thompson v. (though I have found few ready to abandon, in prin- State, 482 N.E.2d 1372, 1373-1374 (Ind.App.1985); ciple, all of them), there is no doubt that, absent spe- Adims v. State, 461 N.E.2d 740, 741-742 cific constitutional protection for the conduct in- (Ind.App.1984); State v. Elliott, 435 N.E.2d 302, 304 volved, the Constitution does not prohibit them (Ind.App.1982); Lasko v. State, 409 N.E.2d 1124, simply because they regulate "morality." See 1126 (Ind.App.1980). [FN2] Bowers v. Hardwick, 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, 92 L.Ed.2d 140 (1986) (upholding pro- FN2. Respondents also contend that the stat- hibition of private homosexual sodomy enacted ute, as interpreted, is not content neutral in solely on "the presumed belief of a majority of the the expressive conduct to which it applies, electorate in [the jurisdiction] that homosexual sod- since it allegedly does not apply to nudity in omy is immoral and unacceptable"). See also Paris theatrical productions. See State v. Bay- Adult Theatre I v. Slaton, 413 U.S. 49, 68, n. 15, 93 singer, 272 Ind. 236, 247, 397 N.E.2d 580,
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S.Ct. 2628, 2641, n. 15, 37 L.Ed.2d 446 (1973); U.S. 558, 561, 68 S.Ct. 1148, 1150, 92 L.Ed. 1574 Dronenburg v. Zech, 239 U.S.App.D.C. 229, 238, (1948), to regulate election campaigns, see Buckley v. and n. 6, 741 F.2d 1388, 1397, and n. 6 (1984) Valeo, 424 U.S. 1, 16, 96 S.Ct. 612, 633, 46 L.Ed.2d (opinion of Bork, J.). The purpose of the Indiana 659 (1976), or to prevent littering, see Schneider v. statute, as both its text and the manner of its enforce- State (Town of Irvington), 308 U.S. 147, 163, 60 ment demonstrate, is to enforce the traditional moral S.Ct. 146, 84 L.Ed. 155 (1939)), we insist that belief that people should not expose their private **2466 it meet the high, First-Amendment standard parts indiscriminately, regardless of whether those of justification. But virtually every law restricts con- who see them are disedified. Since that is so, the duct, and virtually any prohibited conduct can be per- dissent has no basis for positing that, where only formed for an expressive purpose--if only expressive thoroughly edified adults are present, the purpose of the fact that the actor disagrees with the prohibi- must be repression of communication. [FN3] tion. See, e.g., Florida Free Beaches, Inc. v. Miami, 734 F.2d 608, 609 (CA11 1984) (nude sunbathers FN3. The dissent, post, at 2472-2473, challenging public indecency law claimed their "mes- 2475-2476, also misunderstands what is sage" was that nudity is not indecent). It cannot meant by the term "general law." I do not reasonably be demanded, therefore, that every restric- mean that the law restricts the targeted con- tion of expression incidentally produced by a general duct in all places at all times. A law is "gen- law regulating conduct pass normal First Amendment eral" for the present purposes if it regulates scrutiny, or even--as some of our cases have sugges- conduct without regard to whether that con- ted, see, e.g., United States v. O'Brien, 391 U.S. 367, duct is expressive. Concededly, Indiana 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968)- bans nudity in public places, but not within -that it be justified by an "important or substantial" the privacy of the home. (That is not sur- *577 government interest. Nor do our holdings re- prising, since the common-law offense, and quire such justification: We have never invalidated the traditional moral prohibition, runs the application of a general law simply because the against public nudity, not against all nud- conduct that it reached was being engaged in for ex- ity. E.g., 50 Am.Jur.2d, Lewdness, Inde- pressive purposes and the government could not cency, and Obscenity, § 17, pp. 472-474 demonstrate a sufficiently important state interest. (1970).) But that confirms, rather than re- futes, the general nature of the law: One This is not to say that the First Amendment affords may not go nude in public, whether or not no protection to expressive conduct. Where the gov- one intends thereby to convey a message, ernment prohibits conduct precisely because of its and similarly one may go nude in private, communicative attributes, we hold the regulation un- again whether or not that nudity is express- constitutional. See, e.g., United States v. Eichman, ive. 496 U.S. 310, 110 S.Ct. 2404, 110 L.Ed.2d 287 (1990) (burning flag); Texas v. Johnson, 491 U.S. *576 II 397, 109 S.Ct. 2533, 105 L.Ed.2d 342 (1989) (same); Since the Indiana regulation is a general law not spe- Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, cifically targeted at expressive conduct, its applica- 41 L.Ed.2d 842 (1974) (defacing flag); Tinker v. Des tion to such conduct does not in my view implicate Moines Independent Community School Dist., 393 the First Amendment. U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969) (wearing black arm bands); Brown v. Louisiana, 383 The First Amendment explicitly protects "the free- U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966) dom of speech [and] of the press"--oral and written (participating in silent sit-in); Stromberg v. Califor- speech--not "expressive conduct." When any law re- nia, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 stricts speech, even for a purpose that has nothing to (1931) (flying a red flag). [FN4] In each of the fore- do with the suppression of communication (for in- going cases, we explicitly found that suppressing stance, to reduce noise, see Saia v. New York, 334
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communication was the object of the regulation of ing the written or spoken word. It may not, conduct. Where that has not been the case, however- however, proscribe particular conduct because it -where suppression of communicative use of the con- has expressive elements. What might be termed duct was merely the incidental effect of forbidding the more generalized guarantee of freedom of ex- the conduct for other reasons--we have allowed the pression makes the communicative nature of con- regulation to stand. O'Brien, supra, 391 U.S., at 377, duct an inadequate basis for **2467 singling out 88 S.Ct., at 1679 (law banning destruction of draft that conduct for proscription." 491 U.S., at 406, card upheld in application against card burning to 109 S.Ct., at 2540-2541 (internal quotation marks protest *578 war); FTC v. Superior Court Trial Law- and citations omitted; emphasis in original). yers Assn., 493 U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d 851 (1990) (Sherman Act upheld in application All our holdings (though admittedly not some of our against restraint of trade to protest low pay); cf. discussion) support the conclusion that "the only First United States v. Albertini, 472 U.S. 675, 687-688, Amendment analysis applicable to laws that do not 105 S.Ct. 2897, 2905-2906, 86 L.Ed.2d 536 (1985) directly or indirectly impede speech is the threshold (rule barring respondent from military base upheld in inquiry of whether the purpose of the law is to sup- application against entrance on base to protest war); press communication. If not, that is the end of the Clark v. Community for Creative Non-Violence, 468 matter so far as First Amendment guarantees are con- U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) cerned; if so, the court then proceeds to determine (rule barring sleeping in parks upheld in application whether there is substantial justification for the pro- against persons engaging in such conduct to dramat- scription." Community for Creative Non-Violence v. ize plight of homeless). As we clearly expressed the Watt, 227 U.S.App.D.C. 19, 55-56, 703 F.2d 586, point in Johnson: 622-623 (1983) (en banc) (Scalia, J., dissenting), (footnote omitted; emphasis omitted), rev'd sub nom. FN4. It is easy to conclude that conduct has Clark v. Community for Creative Non-Violence, 468 been forbidden because of its communicat- U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984). ive attributes when the conduct in question Such a regime ensures that the government does not is what the Court has called "inherently ex- act to suppress communication, without requiring that pressive," and what I would prefer to call all conduct-restricting regulation *579 which means "conventionally expressive"--such as flying in effect all regulation) survive an enhanced level of a red flag. I mean by that phrase (as I as- scrutiny. sume the Court means by "inherently ex- pressive") conduct that is normally engaged We have explicitly adopted such a regime in another in for the purpose of communicating an idea, First Amendment context: that of free exercise. In or perhaps an emotion, to someone else. I Employment Div., Dept. of Human Resources of Ore. am not sure whether dancing fits that de- v. Smith, 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d scription, see Dallas v. Stanglin, 490 U.S. 876 (1990), we held that general laws not specifically 19, 24, 109 S.Ct. 1591, 1595, 104 L.Ed.2d targeted at religious practices did not require 18 (1989) (social dance group "do[es] not heightened First Amendment scrutiny even though involve the sort of expressive association they diminished some people's ability to practice their that the First Amendment has been held to religion. "The government's ability to enforce gener- protect"). But even if it does, this law is ally applicable prohibitions of socially harmful con- directed against nudity, not dancing. Nud- duct, like its ability to carry out other aspects of pub- ity is not normally engaged in for the pur- lic policy, 'cannot depend on measuring the effects of pose of communicating an idea or an emo- a governmental action on a religious objector's spir- tion. itual development.' " Id., at 885 [110 S.Ct., at 1603], quoting Lyng v. Northwest Indian Cemetery Protect- "The government generally has a freer hand in re- ive Assn., 485 U.S. 439, 451, 108 S.Ct. 1319, 1326, stricting expressive conduct than it has in restrict- 99 L.Ed.2d 534 (1988); see also Minersville School
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District v. Gobitis, 310 U.S. 586, 594-595, 60 S.Ct. "right ... to maintain a decent society" provided a "le- 1010, 1012-1013, 84 L.Ed. 1375 (1940) (Frankfurter, gitimate" basis for regulation--even as to obscene ma- J.) ("Conscientious scruples have not, in the course of terial viewed by consenting adults. 413 U.S., at the long struggle for religious toleration, relieved the 59-60, 93 S.Ct., at 2636-2637. In Bowers, we held individual from obedience to a general law not aimed that since homosexual behavior is not a fundamental at the promotion or restriction of religious beliefs"). right, a Georgia law prohibiting private homosexual There is even greater reason to apply this approach to intercourse needed only a rational basis in order to the regulation of expressive conduct. Relatively few comply with the Due Process Clause. Moral opposi- can plausibly assert that their illegal conduct is being tion to homosexuality, we said, provided that rational engaged in for religious reasons; but almost anyone basis. 478 U.S., at 196, 106 S.Ct., at 2846. I would can violate almost any law as a means of expres- uphold the Indiana statute on precisely the same sion. In the one case, as in the other, if the law is not ground: Moral opposition to nudity supplies a ration- directed against the protected value (religion or ex- al basis for its prohibition, and since the First pression) the law must be obeyed. Amendment has no application to this case no more than that is needed. III While I do not think the plurality's conclusions differ *** greatly from my own, I cannot entirely endorse its Indiana may constitutionally enforce its prohibition reasoning. The plurality purports to apply to this of public nudity even against those who choose to use general law, insofar as it regulates this allegedly ex- public nudity as a means of communication. The pressive conduct, an intermediate level of First State is regulating conduct, not expression, and those Amendment scrutiny: The government interest in the who choose to employ conduct *581 as a means of regulation must be " 'important or substantial,' " ante, expression must make sure that the conduct they se- at 2461, quoting O'Brien, supra, 391 U.S., at 377, 88 lect is not generally forbidden. For these reasons, I S.Ct., at 1679. As I have indicated, *580 I do not agree that the judgment should be reversed. believe such a heightened standard exists. I think we should avoid wherever possible, moreover, a method Justice SOUTER, concurring in the judgment. of analysis that requires judicial assessment of the Not all dancing is entitled to First Amendment pro- "importance" of government interests--and especially tection as expressive activity. This Court has previ- of government interests in various aspects of moral- ously categorized ballroom dancing as beyond the ity. Amendment's protection, Dallas v. Stanglin, 490 U.S. Neither of the cases that the plurality cites to support 19, 24-25, 109 S.Ct. 1591, 1594-1595, 104 L.Ed.2d the "importance" of the State's interest here, see ante, 18 (1989), and dancing as aerobic exercise would at 2462, is in point. Paris Adult Theatre I v. Slaton, likewise be outside the First Amendment's concern. 413 U.S., at 61, 93 S.Ct., at 2637 and Bowers v. But dancing as a performance directed to an actual or Hardwick, 478 U.S., at 196, 106 S.Ct., at 2846, did hypothetical audience gives expression at least to uphold laws prohibiting private conduct based on generalized emotion or feeling, and where the dancer concerns of decency and morality; but neither opin- is nude or nearly so the feeling expressed, in the ab- ion held that those concerns were particularly "import- sence of some contrary clue, is eroticism, carrying an ant" or "substantial," or amounted to anything more endorsement of erotic experience. Such is the ex- than a rational basis for regulation. Slaton involved pressive content of the dances described in the re- an exhibition which, since it was obscene **2468 and cord. at least to some extent public, was unprotected by the Although such performance dancing is inherently ex- First Amendment, see Roth v. United States, 354 U.S. pressive, nudity per se is not. It is a condition, not 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957); the an activity, and the voluntary assumption of that con- State's prohibition could therefore be invalidated only dition, without more, apparently expresses nothing if it had no rational basis. We found that the State's
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beyond the view that the condition is somehow ap- criminal activity." Brief for Petitioners 37. propriate to the circumstances. But every voluntary act implies some such idea, and the implication is This asserted justification for the statute may not be thus so common and minimal that calling all volun- ignored merely because it is unclear to what extent tary activity expressive would reduce the concept of this purpose motivated the Indiana Legislature in en- expression to the point of the meaningless. A search acting the statute. Our appropriate focus is not an for some expression beyond the minimal in the empirical enquiry into the actual intent of the enact- choice to go nude will often yield nothing: a person ing legislature, but rather the existence or not of a may choose nudity, for example, for maximum sun- current governmental interest in the service of which bathing. But when nudity is combined with express- the challenged application of the statute may be con- ive activity, its stimulative and attractive value cer- stitutional. Cf. *583McGowan v. Maryland, 366 U.S. tainly can enhance the force of expression, and a dan- 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 1961). At least as cer's acts in going from clothed to nude, as in a to the regulation of expressive conduct, [FN1] "[w]e striptease, are integrated into the dance and its ex- decline to void [a statute] essentially on the ground pressive function. Thus I agree with the plurality that it is unwise legislation which [the legislature] and the dissent that an interest in freely engaging in had the undoubted power to enact and which could be the nude dancing at issue here is subject to a degree reenacted in its exact form if the same or another le- of First Amendment protection. gislator made a 'wiser' speech about it." O'Brien, supra, 391 U.S., at 384, 88 S.Ct., at 1683. In my *582 I also agree with the plurality that the appropri- view, the interest asserted by petitioners in prevent- ate analysis to determine the actual protection re- ing prostitution, sexual assault, and other criminal quired by the First Amendment is the four-part en- activity, although presumably not a justification for quiry described in United States v. O'Brien, 391 U.S. all applications of the statute, is sufficient under 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), for O'Brien to justify the State's enforcement of the stat- judging the limits of appropriate state action burden- ute against the type of adult entertainment at issue ing expressive acts as distinct from pure speech or here. representation. I nonetheless write separately to rest my concurrence in the judgment, not on the possible FN1. Cf., e.g., Edwards v. Aguillard, 482 sufficiency of society's moral views to justify the lim- U.S. 578, 107 S.Ct. 2573, 96 L.Ed.2d 510 itations at issue, but on the State's substantial interest (1987) (striking down state statute on Estab- in combating the secondary effects of adult **2469 lishment Clause grounds due to impermiss- entertainment establishments of the sort typified by ible legislative intent). respondents' establishments. At the outset, it is clear that the prevention of such It is, of course, true that this justification has not been evils falls within the constitutional power of the articulated by Indiana's Legislature or by its courts. State, which satisfies the first O'Brien criterion. See As the plurality observes, "Indiana does not record le- 391 U.S., at 377, 88 S.Ct., at 1679. The second gislative history, and the State's highest court has not O'Brien prong asks whether the regulation "furthers shed additional light on the statute's purpose," ante, at an important or substantial governmental interest." 2461. While it is certainly sound in such circum- Ibid. The asserted state interest is plainly a substan- stances to infer general purposes "of protecting soci- tial one; the only question is whether prohibiting etal order and morality ... from [the statute's] text and nude dancing of the sort at issue here "furthers" that history," ibid., I think that we need not so limit interest. I believe that our cases have addressed this ourselves in identifying the justification for the legis- question sufficiently to establish that it does. lation at issue here, and may legitimately consider pe- In Renton v. Playtime Theatres, Inc., 475 U.S. 41, titioners' assertion that the statute is applied to nude 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), we upheld a dancing because such dancing "encourag[es] prostitu- city's zoning ordinance designed to prevent the occur- tion, increas[es] sexual assaults, and attract[s] other
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rence of harmful secondary effects, including the "society's interest in protecting this type of expres- crime associated with adult entertainment, by protect- sion is of a wholly different, and lesser, magnitude ing approximately 95% of the city's area from the than the interest in untrammeled political debate," placement of motion picture theaters emphasizing " American Mini Theatres, supra, 427 U.S., at 70, 96 'matter depicting, describing or relating to "specified S.Ct., at 2452, I do not believe that a State is required sexual activities" or "specified anatomical areas" ... affirmatively to undertake to litigate this issue re- for observation by patrons therein.' " Id., at 44, 106 peatedly in every *585 case. The statute as applied S.Ct., at 927. Of particular importance to the present to nudity of the sort at issue here therefore satisfies enquiry, we held that the city of Renton was not com- the second prong of O'Brien. [FN2] pelled to justify its restrictions by studies specifically relating to the problems *584 that would be caused FN2. Because there is no overbreadth chal- by adult theaters in that city. Rather, "Renton was lenge before us, we are not called upon to entitled to rely on the experiences of Seattle and other decide whether the application of the statute cities," id., at 51, 106 S.Ct., at 931, which demon- would be valid in other contexts. It is strated the harmful secondary effects correlated with enough, then, to say that the secondary ef- the presence "of even one [adult] theater in a given fects rationale on which I rely here would be neighborhood." Id., at 50, 106 S.Ct., at 930; cf. open to question if the State were to seek to Young v. American Mini Theatres, Inc., 427 U.S. 50, enforce the statute by barring expressive 71, n. 34, 96 S.Ct. 2440, 2453, n. 34, 49 L.Ed.2d 310 nudity in classes of productions that could (1976) (legislative finding that "a concentration of not readily be analogized to the adult films 'adult' movie theaters causes the area to deteriorate at issue in Renton v. Playtime Theatres, Inc., and become a focus of crime"); California v. LaRue, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 409 U.S. 109, 111, 93 S.Ct. 390, 393, 34 L.Ed.2d 342 (1986). It is difficult to see, for example, (1972) **2470 (administrative findings of criminal how the enforcement of Indiana's statute activity associated with adult entertainment). against nudity in a production of "Hair" or "Equus" somewhere other than an "adult" The type of entertainment respondents seek to theater would further the State's interest in provide is plainly of the same character as that at is- avoiding harmful secondary effects, in the sue in Renton, American Mini Theatres, and LaRue. absence of evidence that expressive nudity It therefore is no leap to say that live nude dancing of outside the context of Renton-type adult en- the sort at issue here is likely to produce the same tertainment was correlated with such sec- pernicious secondary effects as the adult films dis- ondary effects. playing "specified anatomical areas" at issue in Renton. Other reported cases from the Circuit in The third O'Brien condition is that the governmental which this litigation arose confirm the conclusion. interest be "unrelated to the suppression of free ex- See, e.g., United States v. Marren, 890 F.2d 924, 926 pression," 391 U.S., at 377, 88 S.Ct., at 1679, and, on (CA7 1989) (prostitution associated with nude dan- its face, the governmental interest in combating pros- cing establishment); United States v. Doerr, 886 F.2d titution and other criminal activity is not at all inher- 944, 949 (CA7 1989) (same). In light of Renton's re- ently related to expression. The dissent contends, cognition that legislation seeking to combat the sec- however, that Indiana seeks to regulate nude dancing ondary effects of adult entertainment need not await as its means of combating such secondary effects "be- localized proof of those effects, the State of Indiana cause ... creating or emphasizing [the] thoughts and could reasonably conclude that forbidding nude en- ideas [expressed by nude dancing] in the minds of the tertainment of the type offered at the Kitty Kat spectators may lead to increased prostitution," post, at Lounge and the Glen Theatre's "bookstore" furthers 2474, and that regulation of expressive conduct be- its interest in preventing prostitution, sexual assault, cause of the fear that the expression will prove per- and associated crimes. Given our recognition that suasive is inherently related to the suppression of free expression. Ibid.
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The major premise of the dissent's reasoning may be in the context of sexually explicit expression, [FN3] correct, but its minor premise describing the causal to satisfy the third prong of the O'Brien test. theory of Indiana's regulatory justification is not. To say that pernicious secondary effects are associated FN3. I reach this conclusion again mindful, with nude dancing establishments is not necessarily as was the Court in Renton, that the protec- to say that such effects result from the persuasive ef- tion of sexually explicit expression may be fect of the expression inherent in nude dancing. It is of lesser societal importance than the protec- to say, rather, only that the effects are correlated with tion of other forms of expression. See the existence of establishments offering such dan- Renton, supra, at 49, and n. 2, 106 S.Ct., at cing, without deciding what the precise causes of the 929, and n. 2, citing Young v. American Mini correlation *586 actually are. It is possible, for ex- Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. ample, that the higher incidence of prostitution and 2440, 2452, 49 L.Ed.2d 310 (1976). sexual assault in the vicinity of adult entertainment *587 The fourth O'Brien condition, that the restric- locations results from the concentration of crowds of tion be no greater than essential to further the govern- men predisposed to such activities, or from the mental interest, requires little discussion. Pasties simple viewing of nude bodies regardless of whether and a G-string moderate the expression to some de- those bodies are engaged in expression or not. In gree, to be sure, but only to a degree. Dropping the neither case would the chain of causation run through final stitch is prohibited, but the limitation is minor the persuasive effect of the expressive component of when measured against the dancer's remaining capa- nude dancing. city and opportunity to express the erotic message. **2471 Because the State's interest in banning nude Nor, so far as we are told, is the dancer or her em- dancing results from a simple correlation of such ployer limited by anything short of obscenity laws dancing with other evils, rather than from a relation- from expressing an erotic message by articulate ship between the other evils and the expressive com- speech or representational means; a pornographic ponent of the dancing, the interest is unrelated to the movie featuring one of respondents, for example, was suppression of free expression. Renton is again per- playing nearby without any interference from the au- suasive in support of this conclusion. In Renton, we thorities at the time these cases arose. held that an ordinance that regulated adult theaters Accordingly, I find O'Brien satisfied and concur in because the presence of such theaters was correlated the judgment. with secondary effects that the local government had an interest in regulating was content neutral (a de- Justice WHITE, with whom Justice MARSHALL, termination similar to the "unrelated to the suppres- Justice BLACKMUN, and Justice STEVENS join, sion of free expression" determination here, see Clark dissenting. v. Community for Creative Non-Violence, 468 U.S. 288, 298, and n. 8, 104 S.Ct. 3065, 3071, and n. 8, 82 The first question presented to us in this case is L.Ed.2d 221 (1984)) because it was "justified without whether nonobscene nude dancing performed as en- reference to the content of the regulated speech." 475 tertainment is expressive conduct protected by the U.S., at 48, 106 S.Ct., at 929 (emphasis in original). First Amendment. The Court of Appeals held that it We reached this conclusion without need to decide is, observing that our prior decisions permit no other whether the cause of the correlation might have been conclusion. Not surprisingly, then, the plurality now the persuasive effect of the adult films that were be- concedes that "nude dancing of the kind sought to be ing regulated. Similarly here, the "secondary effects" performed here is expressive conduct within the outer justification means that enforcement of the Indiana perimeters of the First Amendment...." Ante, at statute against nude dancing is "justified without ref- 2460. This is no more than recognizing, as the Sev- erence to the content of the regulated [expression]," enth Circuit observed, that dancing is an ancient art ibid. (emphasis omitted), which is sufficient, at least form and "inherently embodies the expression and
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communication of ideas and emotions." Miller v. to the expressive conduct at issue, and must determ- Civil City of South Bend, 904 F.2d 1081, 1087 (1990) ine whether the Indiana statute is an impermissible (en banc). [FN1] infringement of that protected activity." Ante, at 2460. For guidance, the plurality turns to United FN1. Justice SCALIA suggests that per- States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 formance dancing is not inherently express- L.Ed.2d 672 (1968), which held that expressive con- ive activity, see ante, at 2466, n. 4, but the duct could be narrowly regulated or forbidden in pur- Court of Appeals has the better suit of an important or substantial governmental in- view: "Dance has been defined as 'the art of terest that is unrelated to the content of the expres- moving the body in a rhythmical way, usu- sion. The plurality finds that the Indiana statute sat- ally to music, to express an emotion or idea, isfies the O'Brien test in all respects. to narrate a story, or simply to take delight in the movement itself.' 16 The New En- The plurality acknowledges that it is impossible to cyclopedia Britannica 935 (1989). Inher- discern the exact state interests which the Indiana Le- ently, it is the communication of emotion or gislature had in mind when it enacted the Indiana ideas. At the root of all '[t]he varied mani- statute, but the plurality nonetheless concludes that it festations of dancing ... lies the common im- is clear from the statute's text and history that the pulse to resort to movement to externalise law's purpose is to protect "societal order and moral- states which we cannot externalise by ration- ity." Ante, at 2461. The plurality goes on to *589 al means. This is basic dance.' Martin, J. conclude that Indiana's statute "was enacted as a gen- Introduction to the Dance (1939). Aristotle eral prohibition," ante, at 2461 (emphasis added), on recognized in Poetics that the purpose of people appearing in the nude among strangers in pub- dance is 'to represent men's character as well lic places. The plurality then points to cases in as what they do and suffer.' The raw com- which we upheld legislation based on the State's po- municative power of dance was noted by the lice power, and ultimately concludes that the Indiana French poet Stéphane Mallarmé who de- statute "furthers a substantial government interest in clared that the dancer 'writing with her body protecting order and morality." Ante, at 2462. The ... suggests things which the written work Court also holds that the basis for banning nude dan- could express only in several paragraphs of cing is unrelated to free expression and that it is nar- dialogue or descriptive prose.' " 904 F.2d, at rowly drawn to serve the State's interest. 1085-1086. Justice SCALIA cites Dallas v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591, 104 The plurality's analysis is erroneous in several re- L.Ed.2d 18 (1989), but that decision dealt spects. Both the plurality and Justice SCALIA in his with social dancing, not performance dan- opinion concurring in the judgment overlook a funda- cing; and the submission in that case, which mental and critical aspect of our cases upholding the we rejected, was not that social dancing was States' exercise of their police powers. None of the an expressive activity but that plaintiff's as- cases they rely upon, including O'Brien and Bowers sociational rights were violated by restrict- v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 ing admission to dance halls on the basis of L.Ed.2d 140 (1986), involved anything less than truly age. The Justice also asserts that even if general proscriptions on individual conduct. In dancing is inherently expressive, nudity is O'Brien, for example, individuals were prohibited not. The statement may be true, but it tells from destroying their draft cards at any time and in us nothing about dancing in the nude. any place, even in completely private places such as the home. Likewise, in Bowers, the State prohibited **2472 *588 Having arrived at the conclusion that sodomy, regardless of where the conduct might oc- nude dancing performed as entertainment enjoys First cur, including the home as was true in that case. The Amendment protection, the plurality states that it same is true of cases like Employment Div., Dept. of must "determine the level of protection to be afforded Human Resources of Ore. v. Smith, 494 U.S. 872,
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110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), which, which is regulated and nonexpressive conduct of the though not applicable here because it did not involve same type which is not regulated, O'Brien places the any claim that the peyote users were engaged in ex- burden on the State to justify the distinctions it has pressive activity, recognized that the State's interest made. Closer inquiry as to the purpose of the statute in preventing the use of illegal drugs extends even in- is surely appropriate. to the home. By contrast, in this case Indiana does not suggest that its statute applies to, or could be ap- Legislators do not just randomly select certain con- plied to, nudity wherever it occurs, including the duct for proscription; they have reasons for doing so home. We do not understand the plurality or Justice and those reasons illuminate the purpose of the law SCALIA to be suggesting that Indiana could constitu- that is passed. Indeed, a law may have multiple pur- tionally enact such an intrusive prohibition, nor do poses. The purpose of *591 forbidding people to ap- we think such a suggestion would be tenable in light pear nude in parks, beaches, hot dog stands, and like of our decision in Stanley v. Georgia, 394 U.S. 557, public places is to protect others from offense. But 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), in which we that could not possibly be the purpose of preventing held that States could not punish the *590 mere pos- nude dancing in theaters and barrooms since the session of obscenity in the privacy of one's own viewers are exclusively consenting adults who pay home. money to see these dances. The purpose of the pro- scription in these contexts is to protect the viewers **2473 We are told by the attorney general of Indi- from what the State believes is the harmful message ana that, in State v. Baysinger, 272 Ind. 236, 397 that nude dancing communicates. This is why Clark N.E.2d 580 (1979), the Indiana Supreme Court held v. Community for Creative Non-Violence, 468 U.S. that the statute at issue here cannot and does not pro- 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), is of no hibit nudity as a part of some larger form of expres- help to the State: "In Clark ... the damage to the parks sion meriting protection when the communication of was the same whether the sleepers were camping out ideas is involved. Brief for Petitioners 25, for fun, were in fact homeless, or wished by sleeping 30-31; Reply Brief for Petitioners 9-11. Petitioners in the park to make a symbolic statement on behalf of also state that the evils sought to be avoided by ap- the homeless." 904 F.2d, at 1103 (Posner, J., concur- plying the statute in this case would not obtain in the ring). That cannot be said in this case: The per- case of theatrical productions, such as "Salome" or ceived damage to the public interest caused by ap- "Hair." Id., at 11-12. Neither is there any evidence pearing nude on the streets or in the parks, as I have that the State has attempted to apply the statute to said, is not what the State seeks to avoid in prevent- nudity in performances such as plays, ballets, or op- ing nude dancing in theaters and taverns. There the eras. "No arrests have ever been made for nudity as perceived harm is the communicative aspect of the part of a play or ballet." App. 19 (affidavit of Sgt. erotic dance. As the State now tells us, and as Timothy Corbett). Justice SOUTER agrees, the State's goal in applying what it describes as its "content neutral" statute to the Thus, the Indiana statute is not a general prohibition nude dancing in this case is "deterrence of prostitu- of the type we have upheld in prior cases. As a res- tion, sexual assaults, criminal activity, degradation of ult, the plurality and Justice SCALIA's simple refer- women, and other activities which break down family ences to the State's general interest in promoting soci- structure." Reply Brief for Petitioners 11. The at- etal order and morality are not sufficient justification tainment of these goals, however, depends on pre- for a statute which concededly reaches a significant venting an expressive activity. amount of protected expressive activity. Instead, in applying the O'Brien test, we are obligated to care- The plurality nevertheless holds that the third require- fully examine the reasons the State has chosen to reg- ment of the O'Brien test, that the governmental in- ulate this expressive conduct in a less than general terest be unrelated to the suppression of free expres- statute. In other words, when the State enacts a law sion, is satisfied because in applying the statute to which draws a line between expressive conduct nude dancing, the State is not "proscribing nudity be-
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cause of the erotic message conveyed by the dan- be neatly pigeonholed as mere "conduct" independent cers." Ante, at 2463. The plurality suggests that this of any expressive component of the dance. [FN2] is so because the State does not ban dancing that sends an erotic message; it is only nude erotic dan- FN2. Justice SOUTER agrees with the plur- cing that is forbidden. The perceived evil is not erot- ality that the third requirement of the ic dancing but public *592 nudity, which may be pro- O'Brien test is satisfied, but only because he hibited despite any incidental impact on **2474 ex- is not certain that there is a causal connec- pressive activity. This analysis is transparently erro- tion between the message conveyed by nude neous. dancing and the evils which the State is seeking to prevent. See ante, at 2470. In arriving at its conclusion, the plurality concedes Justice SOUTER's analysis is at least as that nude dancing conveys an erotic message and flawed as that of the plurality. If Justice concedes that the message would be muted if the dan- SOUTER is correct that there is no causal cers wore pasties and G-strings. Indeed, the emo- connection between the message conveyed tional or erotic impact of the dance is intensified by by the nude dancing at issue here and the the nudity of the performers. As Judge Posner ar- negative secondary effects that the State de- gued in his thoughtful concurring opinion in the sires to regulate, the State does not have Court of Appeals, the nudity of the dancer is an integ- even a rational basis for its absolute prohibi- ral part of the emotions and thoughts that a nude dan- tion on nude dancing that is admittedly ex- cing performance evokes. 904 F.2d at 1090-1098. pressive. Furthermore, if the real problem The sight of a fully clothed, or even a partially is the "concentration of crowds of men pre- clothed, dancer generally will have a far different im- disposed" to the designated evils, ante, at pact on a spectator than that of a nude dancer, even if 2470, then the First Amendment requires the same dance is performed. The nudity is itself an that the State address that problem in a fash- expressive component of the dance, not merely incid- ion that does not include banning an entire ental "conduct." We have previously pointed out category of expressive activity. See Renton that " '[n]udity alone' does not place otherwise protec- v. Playtime Theatres, Inc., 475 U.S. 41, 106 ted material outside the mantle of the First Amend- S.Ct. 925, 89 L.Ed.2d 29 (1986). ment." Schad v. Mt. Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981). That fact dictates the level of First Amendment pro- tection to be accorded the performances at issue This being the case, it cannot be that the statutory here. In Texas v. Johnson, 491 U.S. 397, 411-412, prohibition is unrelated to expressive conduct. Since 109 S.Ct. 2533, 2543-2544, 105 L.Ed.2d 342 (1989), the State permits the dancers to perform if they wear the Court observed: "Whether Johnson's treatment of pasties and G-strings but forbids nude dancing, it is the flag violated Texas law thus depended on the precisely because of the distinctive, expressive con- likely communicative impact of his expressive con- tent of the nude dancing performances at issue in this duct.... We must therefore subject the State's asser- case that the State seeks to apply the statutory prohib- ted interest in preserving the special symbolic charac- ition. It is only because nude dancing performances ter of the flag to 'the most exacting scrutiny.' Boos v. may generate emotions and feelings of eroticism and Barry, 485 U.S. [312], 321 [108 S.Ct. 1157, 1164, 99 sensuality among the spectators that the State seeks L.Ed.2d 333] [ (1988) ]." Content based restrictions to regulate such expressive activity, apparently on the "will be upheld only if narrowly drawn to accomplish assumption that creating or emphasizing such a compelling governmental interest." United States v. thoughts and ideas in the minds of the spectators may Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1707, 75 lead to increased prostitution and the degradation of L.Ed.2d 736 (1983); Sable Communications of Cal., women. But generating thoughts, ideas, and emo- Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, tions is the essence of communication. The nudity 2836, 106 L.Ed.2d 93 (1989). Nothing could be element of nude dancing performances cannot *593 clearer from our cases.
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That the performances in the Kitty Kat Lounge may 108 S.Ct. 2495, 2503, 101 L.Ed.2d 420 (1988). Fur- not be high art, to say the least, and may not appeal to thermore, if nude dancing in barrooms, as compared the Court, is hardly an excuse for distorting and ig- with other establishments, is the most worrisome noring settled doctrine. The Court's assessment of problem, the State could invoke its Twenty-first the artistic merits of nude dancing performances Amendment powers and impose appropriate regula- **2475 should not be the determining factor in decid- tion. New York State Liquor Authority v. Bellanca, ing this case. In the words of Justice Harlan: "[I]t is 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) largely because governmental officials cannot make (per curiam); California v. LaRue, supra. principled decisions *594 in this area that the Consti- tution leaves matters of taste and style so largely to *595 As I see it, our cases require us to affirm absent the individual." Cohen v. California, 403 U.S. 15, 25, a compelling state interest supporting the statute. 91 S.Ct. 1780, 1788, 29 L.Ed.2d 284 (1971). Neither the plurality nor the State suggest that the "[W]hile the entertainment afforded by a nude ballet statute could withstand scrutiny under that standard. at Lincoln Center to those who can pay the price may Justice SCALIA's views are similar to those of the differ vastly in content (as viewed by judges) or in plurality and suffer from the same defects. The quality (as viewed by critics), it may not differ in Justice asserts that a general law barring specified substance from the dance viewed by the person who conduct does not implicate the First Amendment un- ... wants some 'entertainment' with his beer or shot of less the purpose of the law is to suppress the express- rye." Salem Inn, Inc. v. Frank, 501 F.2d 18, 21, n. 3 ive quality of the forbidden conduct, and that, absent (CA2 1974), aff'd in part sub nom., Doran v. Salem such purpose, First Amendment protections are not Inn, Inc., 422 U.S. 922, 95 S.Ct. 2561, 45 L.Ed.2d triggered simply because the incidental effect of the 648 (1975). law is to proscribe conduct that is unquestionably ex- The plurality and Justice SOUTER do not go beyond pressive. Cf. Community for Creative Non-Violence saying that the state interests asserted here are im- v. Watt, 227 U.S.App.D.C. 19, 703 F.2d 586, portant and substantial. But even if there were com- 622-623 (1983) (Scalia, J., dissenting). The applica- pelling interests, the Indiana statute is not narrowly tion of the Justice's proposition to this case is simple drawn. If the State is genuinely concerned with to state: The statute at issue is a general law banning prostitution and associated evils, as Justice SOUTER nude appearances in public places, including bar- seems to think, or the type of conduct that was occur- rooms and theaters. There is no showing that the ring in California v. LaRue, 409 U.S. 109, 93 S.Ct. purpose of this general law was to regulate express- 390, 34 L.Ed.2d 342 (1972), it can adopt restrictions ive conduct; hence, the First Amendment is irrelev- that do not interfere with the expressiveness of ant and nude dancing in theaters and barrooms may nonobscene nude dancing performances. For in- be forbidden, irrespective of the expressiveness of the stance, the State could perhaps require that, while dancing. performing, nude performers remain at all times a As I have pointed out, however, the premise for the certain minimum distance from spectators, that nude Justice's position--that the statute is a general law of entertainment be limited to certain hours, or even that the type our cases contemplate-- is nonexistent in this establishments providing such entertainment be dis- case. Reference to Justice SCALIA's own hypothet- persed throughout the city. Cf. Renton v. Playtime ical makes this clear. We agree with Justice Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 SCALIA that the Indiana statute would not permit L.Ed.2d 29 (1986). Likewise, the State clearly has 60,000 consenting Hoosiers to expose themselves to the authority to criminalize prostitution and obscene each other in the Hoosier Dome. No one can doubt, behavior. Banning an entire category of expressive however, that those same 60,000 Hoosiers would be activity, however, generally does not satisfy the nar- perfectly **2476 free to drive to their respective row tailoring requirement of strict First Amendment homes all across Indiana and, once there, to parade scrutiny. See Frisby v. Schultz, 487 U.S. 474, 485, around, cavort, and revel in the nude for hours in
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front of relatives and friends. It is difficult to see FOR PETITIONERS (Jan. 03, 1991) why the State's interest in morality is any less in that situation, especially if, as Justice SCALIA seems to • 1990 WL 505544 (Appellate Brief) BRIEF FOR suggest, nudity is inherently evil, but clearly the stat- RESPONDENTS GLEN THEATRE, INC., GAYLE ute does *596 not reach such activity. As we poin- ANN MARIE SUTRO, AND CARLA JOHNSON ted out earlier, the State's failure to enact a truly gen- (Dec. 19, 1990) eral proscription requires closer scrutiny of the reas- • 1990 WL 10012837 (Appellate Brief) Brief of Re- ons for the distinctions the State has drawn. See spondents Darlene Miller and Jr's Kitty Kat Lounge, supra, at 2473. Inc. (Dec. 17, 1990) As explained previously, the purpose of applying the • 1990 WL 10012839 (Appellate Brief) Brief of law to the nude dancing performances in respondents' People for the American Way, the Coalition for Free- establishments is to prevent their customers from be- dom of Expression, and the National Campaign for ing exposed to the distinctive communicative aspects Freedom of Expression as Amici Curiae in Support of nude dancing. That being the case, Justice of the Respondents (Dec. 17, 1990) SCALIA's observation is fully applicable here: "Where the government prohibits conduct pre- • 1990 WL 505543 (Appellate Brief) BRIEF OF RE- cisely because of its communicative attributes, we SPONDENTS DARLENE MILLER and JR'S hold the regulation unconstitutional." Ante, at 2466. KITTY KAT LOUNGE, INC. (Dec. 17, 1990)
The O'Brien decision does not help Justice • 1990 WL 10012829 (Appellate Brief) Brief of the SCALIA. Indeed, his position, like the plurality's, Georgia on Premise & Lounge Association, Inc. as would eviscerate the O'Brien test. Employment Div., Amicus Curiae in Support of Respondents (Dec. 14, Dept. of Human Resources of Ore. v. Smith, 494 U.S. 1990) 872, 110 S.Ct. 1595, 108 L.Ed.2d 876 (1990), is like- wise not on point. The Indiana law, as applied to • 1990 WL 10012835 (Appellate Brief) Motions (2) nude dancing, targets the expressive activity itself; in and Amicus Curiae Brief of James J. Clancy, Attor- Indiana nudity in a dancing performance is a crime ney at Law, in Support of Neither Petitioners nor Re- because of the message such dancing communic- spondents (Dec. 14, 1990) ates. In Smith, the use of drugs was not criminal be- cause the use was part of or occurred within the • 1990 WL 10012826 (Appellate Brief) Brief for Pe- course of an otherwise protected religious ceremony, titioners (Nov. 15, 1990) but because a general law made it so and was suppor- • 1990 WL 10012828 (Appellate Brief) Brief of the ted by the same interests in the religious context as in States of Arizona, Connecticut, Missouri, North Car- others. olina, and the Virgin Islands in Support of Petition- Accordingly, I would affirm the judgment of the ers, Amici Curiae (Nov. 15, 1990) Court of Appeals, and dissent from this Court's judg- • 1990 WL 10022349 (Appellate Brief) Brief of the ment. National Governors' Association, National Associ- 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504, 59 ation of Counties, United States Conference of May- USLW 4745 ors, International City Management Association, and National League of Cities as Amici Curiae in Support Briefs and Other Related Documents (Back to top) of Petitioners (Nov. 15, 1990)
• 1991 WL 636544 (Oral Argument) Oral Argument • 1990 WL 505542 (Appellate Brief) BRIEF FOR (Jan. 08, 1991) PETITIONERS (Nov. 15, 1990)
• 1991 WL 521274 (Appellate Brief) REPLY BRIEF • 1990 WL 10012822 (Appellate Brief) Brief of
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American Family Association, Inc., National Family of Certiorari to the United States Court of Appeals Legal Foundation, Inc., Children's Legal Foundation, for the Seventh Circuit (Jul. 27, 1990)Original Image Inc., Elena Bowman, Lou Ann Hill, Sally Beard, and of this Document with Appendix (PDF) Brenda Gill. Amici Curiae, in Support of Petitioners (Oct. Term 1990) • 1990 WL 10022784 (Appellate Petition, Motion and Filing) Petition for a Writ of Certiorari to the • 1990 WL 10012832 (Appellate Brief) Brief Amicus United States Court of Appeals for the Seventh Cir- Curiae of the American Civil Liberties Union, Indi- cuit (Jul. 02, 1990)Original Image of this Document ana Civil Liberties Union, ACLU of Ohio, and Vo- (PDF) lunteer Lawyers for the Arts, in Support of Respond- ents (Oct. Term 1990) • 1990 WL 10012817 (Appellate Brief) Brief Amicus Curiae of American Family Association, Inc. in Sup- • 1990 WL 10012842 (Appellate Brief) Brief for Re- port of Petitioners (1990) spondents Glen Theatre, Inc., Gayle Ann Marie Sutro, and Carla Johnson (Oct. Term 1990) END OF DOCUMENT
• 1990 WL 10012845 (Appellate Brief) Reply Brief for Petitioners (Oct. Term 1990)
• 1990 WL 10012820 (Appellate Brief) Supplemental Brief on Behalf of Respondents Glen Theatre, Inc., Gayle Ann Marie Sutro and Carla Johnson (Aug. 27, 1990)
• 1990 WL 10022916 (Appellate Petition, Motion and Filing) Supplemental Brief on Behalf of Re- spondents Glen Theatre, Inc., Gayle Ann Marie Sutro and Carla Johnson (Aug. 27, 1990)Original Image of this Document with Appendix (PDF)
• 1990 WL 10012818 (Appellate Brief) Brief of the States of Arizona, Connecticut, Missouri, North Car- olina, and Pennsylvania as Amici Curiae in Support of the Petition for Writ of Certiorari (Aug. 01, 1990)
• 1990 WL 10022881 (Appellate Petition, Motion and Filing) Brief of the States of Arizona, Connectic- ut, Missouri, North Carolina, and Pennsylvania as Amici Curiae in Support of the Petition for Writ of Certiorari (Aug. 01, 1990)Original Image of this Document (PDF)
• 1990 WL 10022882 (Appellate Petition, Motion and Filing) Brief Amicus Curiae of American Family Association, Inc. in Support of Petitioners (Jul. 31, 1990)Original Image of this Document (PDF)
• 1990 WL 10022926 (Appellate Petition, Motion and Filing) Brief in Opposition to Petition for a Writ
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78k1047 Most Cited Cases Supreme Court of the United States (Formerly 78k121, 78k13.1) CALIFORNIA et al., Appellants, Claim that regulations of California Department of v. Alcoholic Beverage Control that regulate type of en- Robert LaRUE et al. tertainment that might be presented in bars and No. 71--36. nightclubs that it licensed exceed the constitutional authority of the Department as matter of state law Argued Oct. 10, 1972. was not cognizable in action under Civil Rights Act Decided Dec. 5, 1972. challenging the constitutionality of the regulations. Rehearing Denied Feb. 20, 1973. West's Ann.Cal.Const. art. 20, § 22; 42 U.S.C.A. § 1983; U.S.C.A.Const. Amends. 1, 14. See 410 U.S. 948, 93 S.Ct. 1351. Actions were brought by various holders of Califor- [2] Courts 23 nia liquor licenses and dancers at licensed premises 106k23 Most Cited Cases challenging constitutionality of state-wide rules adop- ted by Department of Alcoholic not of censoring dra- [2] Federal Courts 31 matic performances sexual live entertainment and 170Bk31 Most Cited Cases films and bars and other establishments licensed to Parties may not confer jurisdiction either upon the dispense liquor by the drink. The United States Dis- Supreme Court of the United States or a United trict Court for the Central District of California, sit- States District Court by stipulation. U.S.C.A.Const. ting as three-judge court, held certain of the regula- art. 3, § 2, cl. 1; 28 U.S.C.A. § 2201. tions invalid, 326 F.Supp. 348, and the state ap- pealed. The Supreme Court, Mr. Justice Rehnquist, [3] Federal Courts 30 held that in context, not of censoring dramtic per- 170Bk30 Most Cited Cases formances in theater, but of licensing bars and (Formerly 106k280(5)) nightclubs to sell liquor by the drink, California De- Request of licensees and of the California Depart- partment of Alcoholic Beverage Control had broad ment of Alcoholic Beverage Control that United latitude under Twenty-first Amendment to control the States District Court adjudicate merits of constitu- manner and circumstances under which liquor might tional claim concerning Department regulations gov- be dispensed, and conclusion that sale of liquor by erning entertainment in bars and nightclubs did not the drink and lewd or naked entertainment should not foreclose inquiry by Supreme Court into existence of take place simultaneously in licensed establishments "actual controversy." 28 U.S.C.A. § 2201; was not irrational nor unreasonable. U.S.C.A.Const. art. 3, § 1 et seq.; art. 3, § 2, cl. 1; Amend. 1. Reversed. [4] Intoxicating Liquors 6 Mr. Justice Stewart concurred and filed opinion. 223k6 Most Cited Cases While the states, vested as they are with general po- Mr. Justice Douglas dissented and filed opinion. lice power, require no specific grant of authority in the Federal Constitution to legislate with respect to Mr. Justice Brennan dissented and filed opinion. matters traditionally within the scope of the police Mr. Justice Marshall dissented and filed opinion. power, the broad sweep of the Twenty-first Amend- ment confers something more than the normal state West Headnotes authority over public health, welfare, and morals. U.S.C.A.Const. Amend. 21. [1] Civil Rights 1047
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[5] Administrative Law and Procedure 381 guidelines, the state regulatory authority was not lim- 15Ak381 Most Cited Cases ited to either dealing with the problem it confronted In legislative rule making, administrative agency may within the limits of decisions as to obscenity or in ac- reason from the particular to the general. cordance with decisional limits prescribed for dealing with some forms of communicative conduct. [6] Intoxicating Liquors 7 U.S.C.A.Const. Amends. 1, 14, 21. 223k7 Most Cited Cases Wide latitude as to the choice of means to accomplish [10] Constitutional Law 90(3) a permissible end must be accorded to the state 92k90(3) Most Cited Cases agency that is itself the repository of the state's power As mode of expression moves from the printed page under the Twenty-first Amendment to regulate intox- to the commission of public acts that may themselves icating liquors. U.S.C.A.Const. Amend. 21. violate valid penal statutes, scope of permissible state regulations significantly increases. U.S.C.A.Const. [7] Intoxicating Liquors 15 Amends. 1, 14. 223k15 Most Cited Cases Choice by California Department of Alcoholic [11] Constitutional Law 90(3) Beverage Control of prohibition of nude dancing and 92k90(3) Most Cited Cases certain other sexual activity within licensed premises State may sometimes proscribe expression which is instead of solution that would have required Depart- directed to the accomplishment of an end that the ment's own personnel to judge individual instances of state has declared to be illegal when such expression inebriation was not an unreasonable one. West's consists, in part, of "conduct" or "action." Ann.Cal.Const. art. 20, § 22; U.S.C.A.Const. U.S.C.A.Const. Amends. 1, 14, 21. Amends. 1, 14.
[8] Intoxicating Liquors 15 [12] Constitutional Law 90.1(4) 223k15 Most Cited Cases 92k90.1(4) Most Cited Cases In context, not of censoring dramatic performances in States may validly limit the manner in which the First theater, but of licensing bars and nightclubs to sell li- Amendment freedoms are exercised by forbidding quor by the drink, California Department of Alcohol- sound trucks in residential neighborhoods and may ic Beverage Control had broad latitude under enforce nondiscriminatory requirement that those Twenty-first Amendment to control the manner and who would parade on the public thoroughfare first circumstances under which liquor might be dis- obtain permit. U.S.C.A.Const. Amends. 1, 14. pensed, and conclusion that sale of liquor by the drink and lewd or naked entertainment should not [13] Intoxicating Liquors 15 take place simultaneously in licensed establishments 223k15 Most Cited Cases was not irrational nor unreasonable. West's There is presumption in favor of validity of state reg- Ann.Cal.Const. art. 20, § 22; U.S.C.A.const. ulation in the area of licensing of the sale of alcoholic Amends. 1, 14, 21. beverages by the drink. U.S.C.A.Const. Amends. 1, 14, 21. [9] Intoxicating Liquors 112.1(2) **392 *109 Syllabus [FN*] 223k112.1(2) Most Cited Cases (Formerly 223k112.2, 223k129) FN* The syllabus constitutes no part of the Although California Department of Alcoholic Bever- opinion of the Court but has been prepared age Control regulations prohibiting explicitly sexual by the Reporter of Decisions for the con- live entertainment and films in bars and other li- venience of the reader. See United States v. censed establishments on their face would proscribe Detroit Timber & Lumber Co., 200 U.S. some forms of visual presentation that would not be 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. found obscene under United States Supreme Court Following hearings, the California Department of Al-
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coholic Beverage Control issued regulations prohibit- judge court was convened in accordance with 28 ing explicitly sexual live entertainment and films in U.S.C. ss 2281 and 2284, and the majority of that bars and other establishments licensed to dispense li- court held that substantial portions of the regulations quor by the drink. A three-judge District Court held conflicted with the First and Fourteenth Amendments the regulations invalid under the First and Fourteenth to the United States Constitution. [FN1] Amendments, concluding that under standards laid down by this Court some of the prescribed entertain- FN1. Appellees in their brief here suggest ment could not be classified as obscene or lacking a that the regulations may exceed the authority communicative element. Held: In the context, not of conferred upon the Department as a matter censoring dramatic performances in a theater, but of of state law. As the District Court recog- licensing bars and nightclubs to sell liquor by the nized, however, such a claim is not cogniz- drink, the States have broad latitude under the able in the suit brought by these appellees Twenty-first Amendment to control the manner and under 42 U.S.C. s 1983. circumstances under which liquor may be dispensed, Concerned with the progression in a few years' time and here the conclusion that sale of liquor by the from 'topless' dancers to 'bottomless' dancers and oth- drink and lewd or naked entertainment should not er forms of 'live entertainment' in bars and nightclubs take place simultaneously in licensed establishments that it licensed, the Department heard a number of was not irrational nor was the prophylactic solution witnesses on the subject at public hearings held prior unreasonable. Pp. 394--397. to the promulgation of the rules. The majority opin- 326 F.Supp. 348, reversed. ion *111 of the District Court described the testi- mony in these words: **393 L. Stephen Porter, San Francisco, Cal., for ap- 'Law enforcement agencies, counsel and owners of pellants. licensed premises and investigators for the Depart- ment testified. The story that unfolded was a sordid Harrison W. Hertzberg, Los Angeles, Cal., and Ken- one, primarily relating to sexual conduct between neth Philip Scholtz, Gardena, Cal., for appellees. dancers and customers. . . .' 326 F.Supp. 348, 352.
*110 Mr. Justice REHNQUIST delivered the opinion References to the transcript of the hearings submitted of the Court. by the Department to the District Court indicated that in licensed establishments where 'topless' and 'bot- [1] Appellant Kirby is the director of the Department tomless' dancers, nude entertainers, and films dis- of Alcoholic Beverage Control, an administrative playing sexual acts were shown, numerous incidents agency vested by the California Constitution with of legitimate concern to the Department had oc- primary authority for the licensing of the sale of alco- curred. Customers were found engaging in oral copu- holic beverages in that State, and with the authority lation with women entertainers; customers engaged to suspend or revoke any such license if it determines in public masturbation; and customers placed rolled that its continuation would be contrary to public wel- currency either directly into the vagina of a female fare or morals. Art. XX, s 22, California Constitution. entertainer, or on the bar in order that she might pick Appellees include holders of various liquor licenses it up herself. Numerous other forms of contact issued by appellant, and dancers at premises operated between the mouths of male customers and the vagin- by such licensees. In 1970 the Department promul- al areas of female performers were reported to have gated rules regulating the type of entertainment that occurred. might be presented in bars and nightclubs that it li- censed. Appellees then brought this action in the Prostitution occurred in and around such licensed United States District Court for the Central District of premises, and involved some of the female dancers. California under the provisions of 28 U.S.C. ss 1331, Indecent exposure to young girls, attempted rape, 1343, 2201, 2202, and 42 U.S.C. s 1983. A three- rape itself, and assaults on police officers took place
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on or immediately adjacent to such premises. of Appeal and the Supreme Court of California. The Department then joined with appellees in requesting At the conclusion of the evidence, the Department the three-judge District Court to decide the merits of promulgated the regulations here challenged, impos- appellees' claims that the regulations were invalid un- ing standards as to the type of entertainment that der the Federal Constitution. [FN3] could be presented in bars and nightclubs that it li- censed. Those portions of the regulations found to be FN3. Mr. Justice DOUGLAS in his dissent- unconstitutional by the majority of the District Court ing opinion suggests that the District Court prohibited the following kinds of conduct on licensed should have declined to adjudicate the mer- premises: its of appellees' contention until the appel- (a) The performance of acts, or simulated acts, of lants had given the 'generalized provisions 'sexual intercourse, **394 masturbation, sodomy, of the rules . . . particularized meaning.' *112 bestiality, oral copulation, flagellation or any Since parties may not confer jurisdiction sexual acts which are prohibited by law'; either upon this Court or the District Court (b) The actual or simulated 'touching, caressing or by stipulation, the request of both parties in fondling on the breast, buttocks, anus or genitals'; this case that the court below adjudicate the (c) The actual or simulated 'displaying of the public merits of the constitutional claim does not hair, anus, vulva or genitals'; foreclose our inquiry into the existence of an (d) The permitting by a licensee of 'any person to 'actual controversy' within the meaning of remain in or upon the licensed premises who ex- 28 U.S.C. s 2201 and Art. III, s 2, cl. 1, of poses to public view any portion of his or her gen- the Constitution. itals or anus'; and, by a companion section, By pretrial stipulation, the appellees admit- (e) The displaying of films or pictures depicting ted they offered performances and depic- acts a live performance of which was prohibited by tions on their licensed premises that were the regulations quoted above. Rules 143.3 and proscribed by the challenged rules. Appel- 143.4. [FN2] lants stipulated they would take disciplinary action against the licenses of licensees viol- FN2. In addition to the regulations held un- ating such rules. In similar circumstances, constitutional by the court below appellees this Court held that where a state commis- originally challenged Rule 143.2 prohibiting sion had 'plainly indicated' an intent to en- topless waitresses, Rule 143.3(2) requiring force an act that would affect the rights of certain entertainers to perform on a stage at the United States, there was a 'present and a distance away from customers, and Rule concrete' controversy within the meaning of 143.5 prohibiting any entertainment that vi- 28 U.S.C. s 2201 and of Art. III. Public Util- olated local ordinances. At oral argument in ities Comm'n of California v. United States, that court they withdrew their objections to 355 U.S. 534, 539, 78 S.Ct. 446, 450, 2 these rules, conceding 'that topless wait- L.Ed.2d 470 (1958). The District Court resses are not within the protection of the therefore had jurisdiction of this action. First Amendment; that local ordinances Whether this Court should develop a nonjur- must be independently challenged depend- isdictional limitation on actions for declarat- ing upon their content; and that the require- ory judgments to invalidate statutes on their ment that certain entertainers must dance on face is an issue not properly before us. Cf. a stage is not invalid.' 326 F.Supp. 348, Ashwander v. Tennessee Valley Authority, 350--351. 297 U.S. 288, 341, 56 S.Ct. 466, 480, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). [2][3] Shortly before the effective date of the Depart- Certainly a number of our cases have per- ment's regulations appellees unsuccessfully sought mitted attacks on First Amendment grounds discretionary review of them in both the State Court
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similar to those advanced by the appellees, [4] While the States, vested as they are with general see, e.g., Zwickler v. Koota, 389 U.S. 241, police power, require no specific grant of authority in 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); Key- the Federal Constitution to legislate with respect to ishian v. Board of Regents, 385 U.S. 589, 87 matters traditionally within the scope of the police S.Ct. 675, 17 L.Ed.2d 629 (1967); Baggett power, the broad sweep of the Twenty-first Amend- v. Bullitt, 377 U.S. 360, 84 S.Ct. 1316, 12 ment has been recognized as conferring something L.Ed.2d 377 (1964), and we are not inclined more than the normal state authority over public to reconsider the procedural holdings of health, welfare, and morals. In Hostetter v. Idlewild those cases in the absence of a request by a Bon Voyage Liquor Corp., 377 U.S. 324, 330, 84 party to do so. S.Ct. 1293, 1297, 12 L.Ed.2d 350 (1964), the Court reaffirmed that by reason of the Twenty-first Amend- *113 The District Court majority upheld the ap- ment 'a State is totally unconfined by traditional pellees' claim that the regulations in question uncon- Commerce Clause limitations when it restricts the stitutionally abridged the freedom of expression guar- importation of intoxicants destined for use, distribu- anteed to them by the First and Fourteenth Amend- tion, or consumption within its borders.' Still *115 ments to the United States Constitution. It reasoned earlier, the Court stated in State Board v. Young's that the state regulations had to be justified either as a Market Co., 299 U.S. 59, 64, 57 S.Ct. 77, 79, 81 prohibition of obscenity in accordance with the Roth L.Ed. 38 (1936): line of decisions in this Court (**395Roth v. United 'A classification recognized by the Twenty-First States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 Amendment cannot be deemed forbidden by the (1957), or else as a regulation of 'conduct' having a Fourteenth.' communicative element in it under the standards *114 laid down by this Court in United States v. These decisions did not go so far as to hold or say O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d that the Twenty-first Amendment supersedes all other 672 (1968). Concluding that the regulations would provisions of the United States Constitution in the bar some entertainment that could not be called ob- area of liquor regulations. In Wisconsin v. Con- scene under the Roth line of cases, and that the gov- stantineau, 400 U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d ernmental interest being furthered by the regulations 515 (1971), the fundamental notice and hearing re- did not meet the tests laid down in O'Brien, the court quirement of the Due Process Clause of the Four- enjoined the enforcement of the regulations. 326 teenth Amendment was held applicable to Wiscon- F.Supp. 348. We noted probable jurisdiction. 404 sin's statute providing for the public posting of names U.S. 999, 92 S.Ct. 559, 30 L.Ed.2d 551. of persons who had engaged in excessive drinking. But the case for upholding state regulation in the area The state regulations here challenged come to us, not covered by the Twenty-first Amendment is un- in the context of censoring a dramatic performance in doubtedly strengthened by that enactment: a theater, but rather in a context of licensing bars and 'Both the Twenty-first Amendment and the Com- nightclubs to sell liquor by the drink. In Joseph E. merce Clause are parts of the same Constitution. Seagram & Sons v. Hostetter, 384 U.S. 35, 41, 86 Like other provisions of the Constitution, each S.Ct. 1254, 1259, 16 L.Ed.2d 336 (1966), this Court must be considered in the light of the other, and in said: the context of the issues and interests at stake in 'Consideration of any state law regulating intoxic- any concrete case.' Hostetter v. Idlewild Bon Voy- ating beverages must begin with the Twenty-first age Liquor Corp., supra, at 332, 84 S.Ct., at 1298. Amendment, the second section of which provides that: 'The transportation or importation into any [5] A common element in the regulations struck State, Territory, or possession of the United States down by the District Court appears to be the Depart- for delivery or use therein of intoxicating liquors, ment's conclusion that the sale of liquor by the drink in violation of the laws thereof, is hereby prohib- and lewd or naked dancing and entertainment should ited.'' not take place in bars and cocktail lounges for which
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it has licensing responsibility. Based on the evidence Our prior cases have held that both motion pictures from the hearings that it cited to the District Court, and theatrical productions are within the protection of and mindful of the principle that in legislative rule- *117 the First and Fourteenth Amendments. In making the agency may reason from the particular to Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 the general, Assigned Car Cases, 274 U.S. 564, 583, S.Ct. 777, 96 L.Ed. 1098 (1952), it was held that mo- 47 S.Ct. 727, 733--734, 71 L.Ed. 1204 (1927), we do tion pictures are 'included within the free speech and *116 not think it can be said **396 that the Depart- free press guaranty of the First and Fourteenth ment's conclusion in this respect was an irrational Amendments,' though not 'necessarily subject to the one. precise rules governing any other particular method of expression.' Id., at 502--503, 72 S.Ct., at 781. In [6][7][8] Appellees insist that the same results could Schacht v. United States, 398 U.S. 58, 63, 90 S.Ct. have been accomplished by requiring that patrons 1555, 26 L.Ed.2d 44 (1970), the Court said with re- already well on the way to intoxication be excluded spect to theatrical productions: from the licensed premises. But wide latitude as to 'An actor, like everyone else in our country, enjoys choice of means to accomplish a permissible end a constitutional right to freedom of speech, includ- must be accorded to the state agency that is itself the ing the right openly to criticize the Government repository of the State's power under the Twenty-first during a dramatic performance.' Amendment. Joseph E. Seagram & Sons v. Hostetter, supra, 384 U.S. at 48, 86 S.Ct. at 1262. Nothing in [10][11][12] But as the mode of expression moves the record before us or in common experience com- from the printed page to the commission of public pels the conclusion that either self-discipline on the acts that may themselves violate valid penal statutes, part of the customer or self-regulation on the part of the scope of permissible state regulations signific- the bartender could have been relied upon by the De- antly increases. States may sometimes proscribe ex- partment to secure compliance with such an alternat- pression that is directed to the accomplishment of an ive plan of regulation. The Department's choice of a end that the State has declared to be illegal when prophylactic solution instead of one that would have such expression consists, in part, of 'conduct' or 'ac- required its own personnel to judge individual in- tion,' Hughes v. Superior Court, 339 U.S. 460, 70 stances of inebriation cannot, therefore, be deemed an S.Ct. 718, 94 L.Ed. 985 (1950); Giboney v. Empire unreasonable one under the holdings of our prior Storage & Ice Co., 336 U.S. 490, 69 S.Ct. 684, 93 cases. Williamson v. Lee Optical Co., 348 U.S. 483, L.Ed. 834 (1949). [FN4] In O'Brien, supra, the Court 487--488, 75 S.Ct. 461, 464--465, 99 L.Ed. 563 suggested that the extent to which 'conduct' was pro- (1955). tected **397 by the First Amendment depended on the presence of a 'communicative element,' and [9] We do not disagree with the District Court's de- stated: termination that these regulations on their face would proscribe some forms of visual presentation that FN4. Similarly, States may validly limit the would not be found obscene under Roth and sub- manner in which the First Amendment sequent decisions of this Court. See, e.g., Sunshine freedoms are exercised, by forbidding sound Book Co. v. Summerfield, 355 U.S. 372, 78 S.Ct. trucks in residential neighborhoods, Kovacs 365, 2 L.Ed.2d 352 (1958), rev'g per curiam, 101 v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 U.S.App.D.C. 358, 249 F.2d 114 (1957). But we do L.Ed. 513 (1949), and may enforce a nondis- not believe that the state regulatory authority in this criminatory requirement that those who case was limited to either dealing with the problem it would parade on a public thoroughfare first confronted within the limits of our decisions as to ob- obtain a permit. Cox v. New Hampshire, 312 scenity, or in accordance with the limits prescribed U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 for dealing with some forms of communicative con- (1941). Other state limitations on the 'time, duct in O'Brien, supra. manner and place' of the exercise of First Amendment rights have been sustained. See,
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e.g., Cameron v. Johnson, 390 U.S. 611, 88 have necessarily dealt with the regulations S.Ct. 1335, 20 L.Ed.2d 182 (1968), and Cox on their face, and have found them to be val- v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 id. The admonition contained in the Court's L.Ed.2d 487 (1965). opinion in Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 52, 86 S.Ct. 1254, 'We cannot accept the view that an apparently *118 1264, 16 L.Ed.2d 336 (1966), is equally in limitless variety of conduct can be labeled 'speech' point here: 'Although it is possible that spe- whenever the person engaging in the conduct in- cific future applications of (the statute) may tends thereby to express in idea.' 391 U.S., at 376, engender concrete problems of constitution- 88 S.Ct., at 1678. al dimension, it will be time enough to con- sider any such problems when they arise. The substance of the regulations struck down prohib- We deal here only with the statute on its its licensed bars or nightclubs from displaying, either face. And we hold that so considered, the le- in the form of movies or live entertainment, 'perform- gislation is constitutionally valid.' ances' that partake more of gross sexuality than of communication. While we agree that at least some of The contrary holding of the District Court is therefore the performances to which these regulations address reversed. themselves are within the limits of the constitutional protection of freedom of expression, the critical fact Reversed. is that California has not forbidden these perform- ances across the board. It has merely proscribed such Mr. Justice STEWART, concurring. performances in establishments that it licenses to sell A State has broad power under the Twenty-first liquor by the drink. Amendment to specify the times, places, and circum- Viewed in this light, we conceive the State's authority stances where liquor may be dispensed within its bor- in this area to be somewhat broader than did the Dis- ders. Joseph E. Seagram & Sons v. Hostetter, 384 trict Court. This is not to say that all such conduct U.S. 35, 86 S.Ct. 1254, 16 L.Ed.2d 336; Hostetter v. and performance are without the protection of the Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, First and Fourteenth Amendments. But we would 330, 84 S.Ct. 1293, 1297, 12 L.Ed.2d 350; Dept. of poorly serve both the interests for which the State Revenue v. James B. Beam Distilling Co., 377 U.S. may validly seek vindication and the interests protec- 341, 344, 346, 84 S.Ct. 1247, 1249, 1250, 12 L.Ed.2d ted by the First and Fourteenth Amendments were we 362; California v. Washington, 358 U.S. 64, 79 S.Ct. to insist that the sort of bacchanalian revelries that the 116, 3 L.Ed.2d 106; Ziffrin, Inc. v. Reeves, 308 U.S. Department sought to prevent by these liquor regula- 132, 60 S.Ct. 163, 84 L.Ed. 128; Mahoney v. Joseph tions were the constitutional equivalent of a perform- Triner, Corp., 304 U.S. 401, 58 S.Ct. 952, 82 L.Ed. ance by a scantily clad ballet troupe in a theater. 1424; State Board of Equalization v. Young's Market Co., 299 U.S. 59, 57 S.Ct. 77, 81 L.Ed. 38. I should [13] The Department's conclusion, embodied in these suppose, therefore, that nobody would question the regulations, that certain sexual performances and the power of California to prevent the sale of liquor by dispensation of liquor by the drink ought not to occur the drink in places where food is not served, or where at premises that have licenses was not an irrational dancing is permitted, or where gasoline is sold. But one. Given the added presumption in favor of the here California has provided that liquor by the drink validity of the state regulation in this area that the shall not be sold in places where certain grossly sexu- Twenty-first *119 Amendment requires, we cannot al exhibitions are performed; and that action by the hold that the regulations on their face violate the Fed- State, say the appellees, violates **398 the First and eral Constitution. [FN5] Fourteenth Amendments. I cannot agree.
FN5. Because of the posture of this case, we Every State is prohibited by these same Amendments
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from invading the freedom of the press and from who sell alcoholic beverages in California. The opin- impinging *120 upon the free exercise of religion. ion *121 of the Court can, therefore, only deal with But does this mean that a State cannot provide that li- the rules in the abstract. quor shall not be sold in bookstores, or within 200 feet of a church? I think not. For the State would not The line which the Court draws between 'expression' thereby be interfering with the First Amendment and 'conduct' is generally accurate; and it also accur- activities of the church or the First Amendment busi- ately describes in general the reach of the police ness of the bookstore. It would simply be controlling power of a State when 'expression' and 'conduct' are the distribution of liquor, as it has every right to do closely brigaded. But we still do not know how under the Twenty-first Amendment. On the same broadly or how narrowly these rules will be applied. premise, I cannot see how the liquor regulations now It is conceivable that a licensee might produce in a before us can be held, on their face, to violate the garden served by him a play--shakespearean perhaps First and Fourteenth Amendments. [FN*] or one in a more modern setting--in which, for ex- FN* This is not to say that the Twenty-first ample, 'fondling' in the sense of the rules appears. I Amendment empowers a State to act with cannot imagine that any such performance could con- total irrationality or invidious discrimination stitutionally be punished or restrained, even though in controlling the distribution and dispensa- the police power of a State is now buttressed by the tion of liquor within its borders. And it most Twenty-first Amendment. [FN1] For, as stated by the assuredly is not to say that the Twenty-first Court, that Amendment did not supersede all other Amendment necessarily overrides in its al- constitutional provisions 'in the area of liquor regula- lotted area any other relevant provision of tions.' Certainly a play which passes muster under the the Constitution. See Wisconsin v. Con- First Amendment is not made illegal because it is stantineau, 400 U.S. 433, 91 S.Ct. 507, 27 performed in a beer garden. L.Ed.2d 515; Hostetter v. Idlewild Bon Voy- FN1. Section 2 of the Twenty-first Amend- age Liquor Corp., 377 U.S. 324, 329--334, ment reads as follows: 84 S.Ct. 1293, 1296--1299, 12 L.Ed.2d 350; 'The transportation or importation into any Dept. of Revenue v. James B. Beam Dis- State, Territory, or possession of the United tilling Co., 377 U.S. 341, 84 S.Ct. 1247, 12 States for delivery or use therein of intoxic- L.Ed.2d 362. ating liquors, in violation of the laws there- It is upon this constitutional understanding that I join of, is hereby prohibited.' the opinion and judgment of the Court. Chief Justice Hughes stated the controlling principle Mr. Justice DOUGLAS, dissenting. in Electric Bond & Share Co. v. SEC, 303 U.S. 419, 443, 58 S.Ct. 678, 687, 82 L.Ed. 936: This is an action for a declaratory judgment, challen- 'Defendants are not entitled to invoke the Federal ging Rules and Regulations of the Department of Al- Declaratory Judgment Act in order to obtain an ad- coholic Beverage Control of California. It is a chal- visory decree upon a hypothetical state of facts. . . . lenge of the constitutionality of the rules on their By the cross-bill, defendants seek a judgment that face; no application of the rules has in fact been made each **399 and every provision of the act is uncon- to appellees by the institution of either civil or crim- stitutional. It presents a variety of hypothetical con- inal proceedings. While the case meets the require- troversies which may never become real. We are ments of 'case or controversy' within the meaning of invited to enter into a speculative inquiry for the Art. III of the Constitution and therefore complies *122 purpose of condemning statutory provisions with Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, the effect of which in concrete situations, not yet 57 S.Ct. 461, 81 L.Ed. 617, the case does not mark developed, cannot now be definitely perceived. We the precise impact of these rules against licensees must decline that invitation. . . .'
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The same thought was expressed by Chief Justice Amendment, as applied to the States through the Due Stone in Alabama State Federation of Labor v. Process Clause of the Fourteenth Amendment, and McAdory, 325 U.S. 450, 470--471, 65 S.Ct. 1384, also, no doubt, to some speech and conduct which are 1393-- 1394, 89 L.Ed. 1725. Some provisions of an unprotected under our prior decisions. See Memoirs Alabama law regulating labor relations were chal- v. Massachusetts, 383 U.S. 413, 86 S.Ct. 975, 16 lenged as too vague and uncertain to meet constitu- L.Ed.2d 1 (1966); Roth v. United States, 354 U.S. tional requirements. The Chief Justice noted that state 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957). The State courts often construe state statutes so that in their ap- points out, however, that the regulation does not pro- plication they are not open to constitutional objec- hibit speech directly, but speaks only to the condi- tions. Id., at 471, 65 S.Ct., at 1394. He said that for us tions under which a license to sell liquor by the drink to decide the constitutional question 'by anticipating can be granted and retained. But, as Mr. Justice such an authoritative construction' would be either 'to MARSHALL carefully demonstrates in Part II of his decide the question unnecessarily or rest our decision dissenting opinion, by requiring the owner of a on the unstable foundation of our own construction of nightclub to forgo the exercise of certain rights guar- the state statute which the state court would not be anteed by the First Amendment, the State has im- bound to follow.' [FN2] Ibid. He added: posed an unconstitutional condition on the grant of a license. See Perry v. Sindermann, 408 U.S. 593, 92 FN2. Even in cases on direct appeal from S.Ct. 2694, 33 L.Ed.2d 570 (1972); Sherbert v. Vern- state court, when the decision below leaves er, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 unresolved questions of state law or proced- (1963); Speiser v. Randall, 357 U.S. 513, 78 S.Ct. ure which bear on federal constitutional 1332, 2 L.Ed.2d 1460 (1958). Nothing in the lan- questions, we dismiss the appeal. Rescue guage or history of the Twenty-first Amendment au- Army v. Municipal Court, 331 U.S. 549, 67 thorizes the States to use their liquor licensing power S.Ct. 1409, 91 L.Ed. 1666. as a means for the deliberate inhibition of protected, even if distasteful, forms of expression. For that reas- 'In any event the parties are free to litigate in the on, I would affirm the judgment of the District Court. state courts the validity of the statute when actually applied to any definite state of facts, with the right **400 Mr. Justice MARSHALL, dissenting. of appellate review in this Court. In the exercise of this Court's discretionary power to grant or with- In my opinion, the District Court's judgment should hold the declaratory judgment remedy it is of con- be affirmed. The record in this case is not a pretty trolling significance that it is in the public interest one, and it is possible that the State could constitu- to avoid the needless determination of constitution- tionally punish some of the activities described al questions and the needless obstruction to the do- therein *124 under a narrowly drawn scheme. But ap- mestic policy of the states by forestalling state ac- pellees challenge these regulations [FN1] on their tion in construing and applying its own statutes.' face, rather than as applied to a specific course of Ibid. conduct. [FN2] Cf. *125Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972). When so Those precedents suggest to me that it would have viewed, I think it clear that the regulations are over- been more provident for the District Court to have broad and therefore unconstitutional. See, e.g., Dom- declined *123 to give a federal constitutional ruling, browski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, until and unless the generalized provisions of the 1120, 14 L.Ed.2d 22 (1965). [FN3] Although the rules were given particularized meaning. State's broad power to regulate the distribution of li- quor **401 and to enforce health and safety regula- Mr. Justice BRENNAN, dissenting. tions is not to be doubted, that power may not be ex- I dissent. The California regulation at issue here ercised in a manner that broadly stifles First Amend- clearly applies to some speech protected by the First ment freedoms. Cf. Shelton v. Tucker, 364 U.S. 479, 488, 81 S.Ct. 247, 252, 5 L.Ed.2d 231 (1960). Rather,
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as this Court has made clear, '(p)recision of regula- the plaintiff has an adequate remedy in a tion *126 must be the touchstone' when First Amend- pending criminal prosecution. See Younger ment rights are implicated. NAACP v. Button, 371 v. Harris, supra, 401 U.S. at 43--44, 91 S.Ct. U.S. 415, 438, 83 S.Ct. 328, 340, 9 L.Ed.2d 405 at 750. Cf. Douglas v. City of Jeannette, 319 (1963). Because I am convinced that these regula- U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324 tions lack the precision which our prior cases require, (1943). But cf. Berryhill v. Gibson, 331 I must respectfully dissent. F.Supp. 122, 124 (MD Ala.1971), probable jurisdiction noted, 408 U.S. 920, 92 S.Ct. FN1. Rule 143.3(1) provides in relevant 2487, 33 L.Ed.2d 331 (1972). The California part: licensing provisions are, of course, civil in 'No licensee shall permit any person to per- nature. Cf. Hearn v. Short, 327 F.Supp. 33 form acts of or acts which simulate: '(a) (SD Tex.1971). Moreover, the Younger doc- Sexual intercourse, masturbation, sodomy, trine has been held to 'have little force in the bestiality, oral copulation, flagellation or absence of a pending state proceeding.' Lake any sexual acts which are prohibited by law. Carriers' Ass'n v. MacMullan, 406 U.S. 498, '(b) The touching, caressing or fondling on 509, 92 S.Ct. 1749, 1757, 32 L.Ed.2d 257 the breasts, buttocks, anus or genitals. (1972) (emphasis added). There are at '(c) The displaying of the pubic hair, anus, present no proceedings of any kind pending vulva or genitals.' against these appellees. Finally, since the Rule 143.4 prohibits: 'The showing of film, Younger doctrine rests heavily on federal still pictures, electronic reproduction, or oth- deference to state administration of its own er visual reproductions depicting: statutes, see Younger v. Harris, supra, 401 '(1) Acts or simulated acts of sexual inter- U.S. at 44--45, 91 S.Ct. at 750--751, it is course, masturbation, sodomy, bestiality, or- waivable by the State. Cf. Hostetter v. al copulation, flagellation or any sexual acts Idlewild Bon Voyage Liquor Corp., 377 which are prohibited by law. U.S. 324, 329, 84 S.Ct. 1293, 1296, 12 '(2) Any person being touched, caressed or L.Ed.2d 350 (1964). Appellants have fondled on the breast, buttocks, anus or gen- nowhere mentioned the Younger doctrine in itals. their brief before this Court, and when the '(3) Scenes wherein a person displays the case was brought to the attention of the at- vulva or the anus or the genitals. torney for the appellants during oral argu- '(4) Scenes wherein artificial devices or in- ment, he expressly eschewed reliance on it. animate objects are employed to depict, or In the court below, appellants specifically drawings are employed to portray, any of the asked for a federal decision on the validity prohibited activities described above. of California's regulations and stated that they did not think the court should abstain. FN2. This is not an appropriate case for ap- See 326 F.Supp. 348, 351 (CD Cal.1971). plication of the abstention doctrine. Since these regulations are challenged on their FN3. I am startled by the majority's sugges- face for overbreadth, no purpose would be tion that the regulations are constitutional on served by awaiting a state court construction their face even though 'specific future ap- of them unless the principles announced in plications of (the statute) may engender con- Younger v. Harris, 401 U.S. 37, 91 S.Ct. crete problems of constitutional dimension.' 746, 27 L.Ed.2d 669 (1971), govern. See (Quoting with approval Joseph E. Seagram Zwickler v. Koota, 389 U.S. 241, 248--250, & Sons v. Hostetter, 384 U.S. 35, 52, 86 88 S.Ct. 391, 395--396, 19 L.Ed.2d 444 S.Ct. 1254, 1265, 16 L.Ed.2d 336 (1966). (1967). Thus far, however, we have limited Ante, at 397 n. 5.) Ever since Thornhill v. the applicability of Younger to cases where
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Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 and be utterly without redeeming social value. [FN5] L.Ed. 1093 (1940), it has been thought that See **402 Memoirs v. Massachusetts, 383 U.S. 413, statutes which trench upon First Amendment 418, 86 S.Ct. 975, 977, 16 L.Ed.2d 1 (1966). rights are facially void even if the conduct of the party challenging them could be prohib- FN4. Indeed, there are some indications in ited under a more narrowly drawn scheme. the legislative history that California adop- See, e.g., Baggett v. Bullitt, 377 U.S. 360, ted these regulations for the specific purpose 366, 84 S.Ct. 1316, 1319, 12 L.Ed.2d 377 of evading those standards. Thus, Captain (1964); Coates v. City of Cincinnati, 402 Robert Devin of the Los Angeles Police De- U.S. 611, 616, 91 S.Ct. 1686, 1689, 29 partment testified that the Department L.Ed.2d 214 (1971); NAACP v. Button, 371 favored adoption of the new regulations for U.S. 415, 432--433, 83 S.Ct. 328, 337--338, the following reason: 'While statutory law 9 L.Ed.2d 405 (1963). has been available to us to regulate what was Nor is it relevant that the State here 'sought formerly considered as antisocial behavior, to prevent (bacchanalian revelries)' rather the federal and state judicial system has, than performances by 'scantily clad ballet through a series of similar decisions, effect- troupe(s).' Whatever the State 'sought' to do, ively emasculated law enforcement in its ef- the fact is that these regulations cover both fort to contain and to control the growth of these activities. And it should be clear that a pornography and of obscenity and of behavi- praiseworthy legislative motive can no more or that is associated with this kind of per- rehabilitate an unconstitutional statute than formance.' See also testimony of Roy E. an illicit motive can invalidate a proper stat- June, City Attorney of the City of Costa ute. Mesa; testimony of Richard C. Hirsch, Of- fice of Los Angeles County District Attor- I ney. App. 117. It should be clear at the outset that California's regu- latory scheme does not conform to the standards FN5. I do not mean to suggest that this test which we have previously enunciated for the control need be rigidly applied in all situations. Dif- of obscenity. [FN4] Before this Court's decision in ferent standards may be applicable when Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 children are involved, see Ginsberg v. New L.Ed.2d 1498 (1957), some American courts fol- York, 390 U.S. 629, 88 S.Ct. 1274, 20 lowed the rule of Regina v. Hicklin, L.R. 3 Q.B. 360 L.Ed.2d 195 (1968); when a consenting (1868), to the effect that the obscenity vel non of a adult possesses putatively obscene material piece of work could be judged by examining isolated in his own home, see Stanley v. Georgia, aspects of it. See, e.g., United States v. Kennerley, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 209 F. 119 (1913); Commonwealth v. Buckley, 200 542 (1969); or when the material by the Mass. 346, 86 N.E. 910 (1909). But in Roth we held nature of its presentation cannot be viewed that '(t)he Hicklin test, judging obscenity by the effect as a whole, see Rabe v. Washington, 405 of isolated passages upon the most susceptible per- U.S. 313, 317 n. 2, 92 S.Ct. 993, 995, 31 sons, might well encompass material legitimately L.Ed.2d 258 (1972) (Burger, C.J., concur- treating with sex, and so it must be rejected as uncon- ring). Similarly, I do not mean to foreclose stitutionally restrictive of the freedoms of speech and the possibility that even the Roth-Memoirs press.' 354 U.S., at 489, 77 S.Ct., at 1311. Instead, we test will ultimately be found insufficient to held that the material must *127 be 'taken as a protect First Amendment interests when whole,' Ibid., and, when so viewed, must appeal to a consenting adults view putatively obscene prurient interest in sex, patently offend community material in private. Cf. Redrup v. New York, standards relating to the depiction of sexual matters, 386 U.S. 767, 87 S.Ct. 1414, 18 L.Ed.2d 515 (1967). But cf. United States v. Reidel,
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402 U.S. 351, 91 S.Ct. 1410, 28 L.Ed.2d under the Roth-Memoirs test. Instead, appellants ar- 813 (1971). But I do think that, at very least, gue that California's regulations do not concern the Roth-Memoirs sets an absolute limit on the control of pornography at all. These rules, they argue, kinds of speech that can be altogether read deal with conduct rather than with speech and as such out of the First Amendment for purposes of are not subject to the strict limitations of the First consenting adults. Amendment.
Obviously, the California rules do not conform to To support this proposition, appellants rely primarily these standards. They do not require the material to on United States v. O'Brien, 391 U.S. 367, 88 S.Ct. be judged as a whole and do not speak to the neces- 1673, 20 L.Ed.2d 672 (1968), which upheld the con- sity of proving prurient interest, offensiveness to stitutionality of legislation punishing the destruction community standards, or lack of redeeming social or mutilation of Selective Service certificates. value. Instead of the contextual test approved in Roth O'Brien rejected the notion that 'an apparently limit- and Memoirs these regulations create a system of per less variety of conduct can be labeled 'speech' se rules to be applied regardless of context: Certain whenever the person engaging in the conduct intends acts simply may not be depicted and certain parts of thereby to express an idea,' and held that Government the body may under no circumstances be revealed. regulation of speech-related conduct is permissible 'if The regulations thus treat on the same level a serious it is within the constitutional power of the Govern- movie such as 'Ulysses' and a crudely made 'stag ment; if it furthers an important or substantial gov- film.' They ban not only obviously pornographic pho- ernmental interest; if the governmental interest is un- tographs, but also great sculpture from antiquity. related to the suppression of free expression; and if [FN6] the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the further- FN6. Cf. Fuller, Changing Society Puts ance of that interest.' Id., at 376--377, 88 S.Ct., at Taste to the Test, The National Observer, 1678--1679. June 10, 1972, p. 24: 'Context is the essence of esthetic judgment . . .. There is a world of *129 While I do not quarrel with these principles as difference between Playboy and less preten- stated in the abstract, their application in this case tious girly magazines on the one hand, and stretches them beyond the breaking point. [FN7] In on the other, The Nude, a picture selection O'Brien, the Court began its discussion by noting that from the whole history of art, by that fine the statute in question 'plainly does not abridge free teacher and interpreter of civilization, Ken- speech on its face.' Indeed, even O'Brien himself con- neth Clark. People may be just as naked in ceded that facially the statute dealt 'with conduct hav- one or the other, the bodies inherently just as ing no connection with speech.' [FN8] Id., at 375, 88 beautiful, but the context of the former is S.Ct., at 1678. **403 Here, the situation is quite dif- vulgar, of the latter, esthetic. 'The same ferent. A long line of our cases makes clear that mo- words, the same actions, that are cheap and tion pictures, unlike draftcard burning, are a form of tawdry in one book or play may contribute expression entitled to prima facie First Amendment to the sublimity, comic universality or tragic protection. 'It cannot be doubted that motion pictures power of others. For a viable theory of taste, are a significant medium for the communication of context is all.' ideas. They may affect public attitudes and behavior in a variety of ways, ranging from direct espousal of *128 Roth held 15 years ago that the suppression of a political or social doctrine to the subtle shaping of serious communication was too high a price to pay in thought which characterizes all artistic expression. order to vindicate the State's interest in controlling The importance of motion pictures as an organ of obscenity, and I see no reason to modify that judg- public opinion is not lessened by the fact that they are ment today. Indeed, even the appellants do not seri- designed to entertain as well as to inform.' Joseph ously contend that these regulations can be justified Burstyn, Inc. v. Wilson, 343 U.S. 495, 501, 72 S.Ct.
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777, 780, 96 L.Ed. 1098 (1952) (footnote omitted). 'speech' within the meaning of the First Amendment, See also Interstate Circuit, Inc. v. City of Dallas, 390 but that the individual gestures of the actors are 'con- U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968); duct' which the State may prohibit. The State may no *130Jacobellis v. Ohio, 378 U.S. 184, 84 S.Ct. 1676, more allow movies while punishing the 'acts' of 12 L.Ed.2d 793 (1964); Pinkus v. Pitchess, 429 F.2d which they are composed than it may allow newspa- 416 (CA9 1970), aff'd by equally divided court sub pers while punishing the 'conduct' of setting type. nom. California v. Pinkus, 400 U.S. 922, 91 S.Ct. 185, 27 L.Ed.2d 183 (1970). Similarly, live perform- Of course, I do not mean to suggest that anything ances and dance have, in recent years, been afforded which, occurs upon a stage is automatically immune broad prima facie First Amendment protection. See, from state regulation. No one seriously contends, for e.g., Schacht v. United States, 398 U.S. 58, 90 S.Ct. example, that an actual murder may be legally com- 1555, 26 L.Ed.2d 44 (1970); P.B.I.C., Inc. v. Byrne, mitted so long as it is called for in the script, or that 313 F.Supp. 757 (Mass.1970), vacated to consider an actor may inject real heroin into his veins while mootness, 401 U.S. 987, 91 S.Ct. 1222, 28 L.Ed.2d evading the drug laws that apply to everyone else. 526 (1971); In re Giannini, 69 Cal.2d 563, 72 But once it is recognized that movies and plays enjoy Cal.Rptr. 655, 446 P.2d 535 (1968), cert. denied sub prima facie First Amendment protection, the standard nom. California v. Giannini, 395 U.S. 910, 89 S.Ct. for reviewing state regulation of their component 1743, 23 L.Ed.2d 223 (1969). parts shifts dramatically. For while '(m)ere legislative preferences or beliefs respecting matters of public FN7. Moreover, even if the O'Brien test convenience may well support regulation directed at were here applicable, it is far from clear that other personal activities, (they are) insufficient to jus- it has been satisfied. For example, most of tify such as diminishes the exercise of rights so vital' the evils that the State alleges are caused by as freedom *131 of speech. Schneider v. State, 308 appellees' performances are already punish- U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155 able under California law. See n. 11, infra. (1939). Rather, in order to restrict speech, the State Since the less drastic alternative of criminal must show that the speech is 'used in such circum- prosecution is available to punish these viol- stances and (is) of such a nature as to create a clear ations, it is hard to see how 'the incidental and present danger that (it) will bring about the sub- restriction on alleged First Amendment stantive evils that (the State) has a right to prevent.' freedoms is no greater than is essential' to Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. further the State's interest. 247, 249, 63 L.Ed. 470 (1919). Cf. Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 FN8. The Court pointed out that the statute (1969); Dennis v. United States, 341 U.S. 494, 71 'does not distinguish between public and S.Ct. 857, 95 L.Ed. 1137 (1951). [FN9] private destruction, and it does not punish only destruction engaged in for the purpose FN9. Of course, the State need not meet the of expressing views . . . A law prohibiting clear and present danger test if the material destruction of Selective Service certificates in question is obscene. See Roth v. United no more abridges free speech on its face States, 354 U.S. 476, 77 S.Ct. 1304, 1 than a motor vehicle law prohibiting the de- L.Ed.2d 1498 (1957). But, as argued above, struction of drivers' licenses, or a tax law the difficulty with California's rules is that prohibiting the destruction of books and re- they do not conform to the Roth test and cords.' 391 U.S., at 375, 88 S.Ct., at 1678. therefore regulate material that is not ob- scene. See supra, at 401--402. If, as these many cases hold, movies, plays, and the dance enjoy constitutional protection, it follows, in- When the California regulations are measured against eluctably I think, that their component parts are pro- this stringent standard, **404 they prove woefully in- tected as well. It is senseless to say that a play is adequate. Appellants defend the rules as necessary to
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prevent sex crimes, drug abuse, prostitution, and a FN10. This case might be different if the wide variety of other evils. These are precisely the State asserted a primary interest in stopping same interests that have been asserted time and again the very acts performed by these dancers before this Court as justification for laws banning and actors. However, I have serious doubts frank discussion of sex and that we have consistently whether the State may constitutionally assert rejected. In fact, the empirical link between sex- an interest in regulating any sexual act related entertainment and the criminal activity pop- between consenting adults. Cf. Griswold v. ularly associated with it has never been proved and, Connecticut, 381 U.S. 479, 85 S.Ct. 1678, indeed, has now been largely discredited. See, e.g., 14 L.Ed.2d 510 (1965). Moreover, it is un- Report of the Commission on Obscenity and Porno- necessary to reach that question in this case graphy 27 (1970); Cairns, Paul, & Wishner, Sex Cen- since the State's regulations are plainly not sorship: The Assumptions of Anti-Obscenity Laws designed to stop the acts themselves, most of and the Empirical Evidence, 46 Minn.L.Rev. 1009 which are in fact legal when done in private. (1962). Yet even if one were to concede that such a Rather, the State punishes the acts only link existed, it would hardly justify a broadscale at- when done in public as part of a dramatic tack on First Amendment freedoms. The only way to presentation. Cf. United States v. O'Brien, stop murders and drugs abuse is to punish them dir- supra, 391 U.S. at 375, 88 S.Ct. at 1678. It ectly. But the State's interest in controlling material must be, therefore, that the asserted state in- *132 dealing with sex is secondary in nature. [FN10] terest stems from the effect of the acts on the It can control rape and prostitution by punishing audience rather than from a desire to stop those acts, rather than by punishing the speech that is the acts themselves. It should also be em- one step removed from the feared harm. [FN11] phasized that this case does not present Moreover, because First Amendment rights are at problems of an unwilling audience or of an stake, the State must adopt this 'less restrictive altern- audience composed of minors. ative' unless it can make a compelling demonstration that the protected activity and criminal conduct are so FN11. Indeed, California already has stat- closely linked that only through regulation of one can utes controlling virtually all of the miscon- the other be stopped. Cf. United States v. Robel, 389 duct said to flow from appellees' activities. U.S. 258, 268, 88 S.Ct. 419, 426, 19 L.Ed.2d 508 See Calif.Penal Code s 647(b) (Supp.1972) (1967). As we said in Stanley v. Georgia, 394 U.S. (prostitution); Calif.Penal Code ss 261, 263 557, 566--567 89 S.Ct. 1243, 1249, 22 L.Ed.2d 542 (1970) (rape); Calif.Bus. & Prof.Code s (1969), 'if the State is only concerned about printed 25657 (Supp.1972) ('B-Girl' activity); Cal- or filmed materials inducing antisocial conduct, we if.Health & Safety Code ss 11500, 11501, believe that in the context of private consumption of 11721, 11910, 11912 (1964 and Supp.1972) ideas and information we should adhere to the view (sale and use of narcotics). that '(a)mong free men, the deterrents ordinarily to be FN12. Of course, it is true that Stanley does applied to prevent *133 crime are education and pun- not govern this case, since Stanley dealt only ishment for violations of the law . . ..' Whitney v. with the private possession of obscene ma- California, 274 U.S. 357, 378, 47 S.Ct. 641, 649, 71 terials in one's own home. But in another L.Ed. 1095 (1927) (Brandeis, J., concurring). . . . sense, this case is stronger than Stanley. In Given the present state of knowledge, the State may Stanley, we held that the State's interest in no more prohibit mere possession of obscene matter the prevention of sex crimes did not justify on the ground that it may lead to antisocial conduct laws restricting possession of certain materi- than it may prohibit possession of chemistry books als, even though they were conceded to be on the ground that they may lead to the manufacture obscene. It follows a fortiori that this interest of homemade spirits.' [FN12] is insufficient when the materials are not ob- scene and, indeed, are constitutionally pro-
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tected. acted a pro tanto repealer of the rest of the Constitu- tion. Only last Term, we held that the State's con- **405 II ceded power to license the distribution of intoxicating It should thus be evident that, under the standards beverages did not justify use of that power in a man- previously developed by this Court, the California ner that conflicted with the Equal Protection Clause. regulations are overbroad: They would seem to sup- See Moose Lodge No. 107 v. Irvis, 407 U.S. 163, press not only obscenity outside the scope of the First 178--179, 92 S.Ct. 1965, 1974--1975, 32 L.Ed.2d 627 Amendment, but also speech that is clearly protected. (1972). Cf. **406Wisconsin v. Constantineau, 400 But California contends that these regulations do not U.S. 433, 91 S.Ct. 507, 27 L.Ed.2d 515 (1971); involve suppression at all. The State claims that its Hornsby v. Allen, 326 F.2d 605 (CA5 1964). I am at rules are not regulations of obscenity, but are rather a loss to understand why the Twenty-first Amend- merely regulations of the sale and consumption of li- ment should be thought to override the First Amend- quor. Appellants point out that California does not ment but not the Fourteenth. punish establishments which provide the proscribed entertainment, but only requires that they not serve FN14. The text of the Amendment is based alcoholic beverages on their premises. Appellants on the Webb-Kenyon Act, 37 Stat. 699, vigorously argue that such regulation falls within the which antedated prohibition. The Act was State's general police power as augmented, when al- entitled 'An Act Divesting intoxicating li- coholic beverages are involved, by the Twenty-first quors of their interstate character in certain Amendment. [FN13] cases,' and was designed to allow 'dry' States to regulate the flow of alcohol across their FN13. The Twenty-first Amendment, in ad- borders. See, e.g., McCormick & Co. v. dition to repealing the Eighteenth Amend- Brown, 286 U.S. 131, 140--141, 52 S.Ct. ment, provides: 'The transportation or im- 522, 526, 76 L.Ed. 1017 (1932); Clark Dis- portation into any State, Territory, or posses- tilling Co. v. Western Maryland R. Co., 242 sion of the United States for delivery or use U.S. 311, 324, 37 S.Ct. 180, 184, 61 L.Ed. therein of intoxicating liquors, in violation 326 (1917). The Twenty-first Amendment of the laws thereof, is hereby prohibited.' was intended to embed this principle per- manently into the Constitution. As explained *134 I must confess that I find this argument difficult by its sponsor on the Senate floor 'to assure to grasp. To some extent, it seems premised on the the so-called dry States against the importa- notion that the Twenty-first Amendment authorizes tion of intoxicating liquor into those States, the States to regulate liquor in a fashion which would it is proposed to write permanently into the otherwise be constitutionally impermissible. But the Constitution a prohibition along that line. Amendment by its terms speaks only to state control '(T)he pending proposal will give the States of the importation of alcohol, and its legislative his- that guarantee. When our Government was tory makes clear that it was intended only to permit organized and the Constitution of the United 'dry' States to control the flow of liquor across their States adopted, the States surrendered con- boundaries despite potential Commerce Clause objec- trol over and regulation of interstate com- tions. [FN14] See generally Joseph E. Seagram & merce. This proposal is restoring to the Sons Inc. v. Hostetter, 384 U.S. 35, 86 S.Ct. 1254, 16 States, in effect, the right to regulate com- L.Ed.2d 336 (1966); Hostetter v. Idlewild Bon Voy- merce respecting a single commodity- age Liquor Corp., 377 U.S. 324, 84 S.Ct. 1293, 12 -namely, intoxicating liquor.' 76 Cong.Rec. L.Ed.2d 350 (1964). There is not a word in that his- 4141 (remarks of Sen. Blaine). tory which indicates that Congress meant to tamper in any way with First Amendment rights. I submit To be sure, state regulation of liquor is important, and that the framers of the Amendment would be aston- it is deeply embedded in our history. See, e.g., Colon- ished to *135 discover that they had inadvertently en- nade Catering Corp. v. United States, 397 U.S. 72,
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77, 90 S.Ct. 774, 777, 25 L.Ed.2d 60 (1970). But 'this is only the beginning, not the end, of our in- First Amendment values are important as well. In- quiry.' Sherbert v. Verner, 374 U.S. 398, 403--404, deed in the past they have been thought so important 83 S.Ct. 1790, 1794, 10 L.Ed.2d 965 (1963). For '(i)t as to provide an independent restraint on every power is too late in the day to doubt that the liberties of reli- of Government. 'Freedom of press, freedom of gion and expression may be infringed by the denial of speech, freedom of religion are in a preferred posi- or placing of conditions upon a benefit or privilege.' tion.' Murdock v. Pennsylvania, 319 U.S. 105, 115, Id., at 404, 84 S.Ct., at 1794. As we pointed out only 63 S.Ct. 870, 876, 87 L.Ed. 1292 (1943). Thus, when last Term, '(f)or at least a quarter century, this Court the Government attempted to justify a limitation on has made clear that even though a person has no freedom of association by reference to the war power, 'right' to a valuable governmental benefit and even we categorically rejected the attempt. '(The) concept thought the government may deny him the benefit for of 'national defense" we held, 'cannot be deemed an any number or reasons, there are some reasons upon end in itself, justifying any exercise of legislative which the government may not act. It may not deny a power designed to promote such a goal. Implicit in benefit to a person on a basis that infringes his consti- the term 'national defense' is the notion of defending tutionally protected interests--especially, his interest those values and ideals which set this Nation apart. in freedom of speech. For if the government could For almost two centuries, our country has taken sin- deny a benefit to a person because of his constitution- gular pride in the democratic ideals enshrined in its ally protected *137 speech or associations, his exer- Constitution, and the most cherished of those ideals cise of those freedoms would in effect be penalized have found expression in the First Amendment. It and inhibited.' Perry v. Sindermann, 408 U.S. 593, would indeed, be ironic if, in the name of national de- 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972). fense, we would sanction the subversion of one of those liberties--the freedom of association--which Thus, unconstitutional conditions on welfare benefits, *136 makes the defense of the Nation worthwhile.' [FN15] unemployment compensation, [FN16] **407 United States v. Robel, 389 U.S., at 264, 88 S.Ct., at tax exemptions, [FN17] public employment, [FN18] 423--424. Cf. New York Times Co. v. United States, bar admissions, [FN19] and mailing privileges 403 U.S. 713, 716--717, 91 S.Ct. 2140, 2142--2143, [FN20] have all been invalidated by this Court. In 29 L.Ed.2d 822 (1971) (Black, J., concurring); Home none of these cases were criminal penalties involved. Bldg. & Loan Ass'n v. Blaisdell, 290 U.S. 398, 426, In all of them, citizens were left free to exercise their 54 S.Ct. 231, 235, 78 L.Ed. 413 (1934). If the First constitutional rights so long as they were willing to Amendment limits the means by which our Govern- give up a 'gratuity' that the State had no obligation to ment can ensure its very survival, then surely it must provide. Yet in all of them, we found that the dis- limit the State's power to control the sale of alcoholic criminatory provision of a privilege placed too great beverages as well. a burden on constitutional freedoms. I therefore have some difficulty in understanding why California Of course, this analysis is relevant only to the extent nightclub proprietors should be singled out and in- that California has in fact encroached upon First formed that they alone must sacrifice their constitu- Amendment rights. Appellants argue that no such en- tional rights before gaining the 'privilege' to serve li- croachment has occurred, since appellees are free to quor. continue providing any entertainment they choose without fear of criminal penalty. Appellants suggest FN15. See Shapiro v. Thompson, 394 U.S. that this case is somehow different because all that is 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1969). at stake is the 'privilege' of serving liquor by the But cf. Wyman v. James, 400 U.S. 309, 91 drink. S.Ct. 381, 27 L.Ed.2d 408 (1971).
It should be clear, however, that the absence of crim- FN16. See Sherbert v. Verner, 374 U.S. 398, inal sanctions is insufficient to immunize state regu- 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). lation from constitutional attack. On the contrary,
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FN17. See Speiser v. Randall, 357 U.S. 513, lated; it also discriminates between otherwise indis- 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958). tinguishable parties on the basis of the content of their speech. Thus, California nightclub owners may FN18. See, e.g., Pickering v. Board of Edu- present live shows and movies dealing with a wide cation, 391 U.S. 563, 88 S.Ct. 1731, 20 variety of topics while maintaining their licenses. But L.Ed.2d 811 (1968); Keyishian v. Board of if they choose to deal with sex, they are treated quite Regents, 385 U.S. 589, 87 S.Ct. 675, 17 differently. Classifications based on the content of L.Ed.2d 629 (1967); Baggett v. Bullitt, 377 speech have long been disfavored and must be U.S. 360, 84 S.Ct. 1316, 12 L.Ed.2d 377 viewed with the gravest suspicion. See, e.g., Cox v. (1964). Louisiana, 379 U.S. 536, 556--558, 85 S.Ct. 453, 465--466, 13 L.Ed.2d 471 (1965). Whether this test is FN19. See, e.g., Baird v. State Bar of Ari- thought to derive from equal protection analysis, see zona, 401 U.S. 1, 91 S.Ct. 702, 27 L.Ed.2d Police Department of City of Chicago v. Mosley, 408 639 (1971); Konigsberg v. State Bar, 353 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); U.S. 252, 77 S.Ct. 722, 1 L.Ed.2d 810 Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, (1957); Schware v. Board of Bar Examiners, 95 L.Ed. 267, 280 (1951), or directly from the sub- 353 U.S. 232, 77 S.Ct. 752, 1 L.Ed.2d 796 stantive constitutional provision involved, see Cox v. (1957). But cf. Law Students Civil Rights Louisiana, supra; Schneider v. State, 308 U.S. 147, Research Council v. Wadmond, 401 U.S. 60 S.Ct. 146, 84 L.Ed. 155 (1939), the result is the 154, 91 S.Ct. 720, 27 L.Ed.2d 749 (1971); same: any law that has 'no other purpose . . . than to Konigsberg v. State Bar, 366 U.S. 36, 81 chill the assertion of constitutional rights by penaliz- S.Ct. 997, 6 L.Ed.2d 105 (1961). ing those who choose to exercise them . . . (is) pat- FN20. See, e.g., Blount v. Rizzi, 400 U.S. ently unconstitutional.' United States v. Jackson, 390 410, 91 S.Ct. 423, 27 L.Ed.2d 498 (1971); U.S. 570, 581, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 Hannegan v. Esquire Inc., 327 U.S. 146, (1968). 156, 66 S.Ct. 456, 461, 90 L.Ed. 586 (1946). As argued above, the constitutionally permissible Of course, it is true that the State may in proper cir- purposes asserted to justify **408 these regulations cumstances enact a broad regulatory scheme that in- are too remote to satisfy the Government's burden, cidentally restricts First Amendment rights. For ex- when First Amendment rights are at stake. See supra, ample, if California prohibited the sale of alcohol al- at 403--405. *139 It may be that the Government has together, I do not mean to suggest that the proprietors an interest in suppressing lewd or 'indecent' speech *138 of theaters and bookstores would be constitu- even when it occurs in private among consenting tionally entitled to a special dispensation. But in that adults. Cf. United States v. Thirty-seven Photo- event, the classification would not be speech related graphs, 402 U.S. 363, 376, 91 S.Ct. 1400, 1408, 28 and, hence, could not be rationally perceived as pen- L.Ed.2d 822 (1971). But cf. Stanley v. Georgia, 394 alizing speech. Classifications that discriminate U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969). That against the exercise of constitutional rights per se interest, however, must be balanced against the over- stand on an altogether different footing. They must be riding interest of our citizens in freedom of thought supported by a 'compelling' governmental purpose and expression. Our prior decisions on obscenity set and must be carefully examined to insure that the such a balance and hold that the Government may purpose is unrelated to mere hostility to the right be- suppress expression treating with sex only if it meets ing asserted. See, e.g., Shapiro v. Thompson, 394 the three-pronged Roth-Memoirs test. We have said U.S. 618, 634, 89 S.Ct. 1322, 1331, 22 L.Ed.2d 600 that '(t)he door barring federal and state intrusion into (1969). this area cannot be left ajar; it must be kept tightly closed and opened only the slightest crack necessary Moreover, not only is this classification speech re- to prevent encroachment upon more important in-
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terests.' Roth v. United States, 354 U.S., at 488, 77 S.Ct., at 1311. Because I can see no reason why we should depart from that standard in this case, I must respectfully dissent.
409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342
END OF DOCUMENT
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tial government interest of preventing secondary ef- fects of adult businesses; and Briefs and Other Related Documents (8) ordinance did not violate First Amendment guar- antee of freedom of expression. United States Court of Appeals, Affirmed. Ninth Circuit. Bill Badi GAMMOH, dba Taboo Theater aka Pelican West Headnotes Theater; Leslie West; Armine Michelle Bedrosian; Christine Johanna Fener; Char- [1] Federal Courts 776 bonesse Garrett; Heather 170Bk776 Most Cited Cases Eloise Elam; Stacy Joy Andre; Meghann Lara Ann Court of Appeals reviews the district court's ruling on Onselen, Plaintiffs- the constitutionality of a city ordinance de novo. Appellants, v. [2] Criminal Law 13.1(1) CITY OF LA HABRA, Defendant-Appellee. 110k13.1(1) Most Cited Cases No. 04-56072. To survive a vagueness challenge, a regulation must define the criminal offense with sufficient definite- Argued and Submitted Nov. 1, 2004. ness that ordinary people can understand what con- Filed Jan. 26, 2005. duct is prohibited and in a manner that does not en- courage arbitrary and discriminatory enforcement. Background: Owner of adult entertainment club and dancer-employees brought action challenging consti- [3] Constitutional Law 82(4) tutionality of city ordinance that required adult cab- 92k82(4) Most Cited Cases aret dancers to remain two feet away from patrons during performances. The United States District [3] Municipal Corporations 594(2) Court for the Central District of California, Gary L. 268k594(2) Most Cited Cases Taylor, J., dismissed certain claims, and granted sum- A greater degree of specificity and clarity is required mary judgment in favor of city on others. Plaintiffs in the language of a municipal ordinance when First appealed. Amendment rights are at stake than would otherwise be required to survive a vagueness challenge. Holdings: The Court of Appeals, Tallman, Circuit U.S.C.A. Const.Amend. 1. Judge, held that: (1) ordinance was not void for vagueness; [4] Constitutional Law 90.4(5) (2) ordinance was not overbroad; 92k90.4(5) Most Cited Cases (3) plaintiffs failed to demonstrate that ordinance vi- [4] Public Amusement and Entertainment olated Takings Clause; 9(2) (4) ordinance was not complete ban on protected ex- 315Tk9(2) Most Cited Cases pression; (Formerly 376k3.50 Theaters and Shows) (5) ordinance regulated expression that was sexual or City ordinance, requiring adult cabaret dancers to re- pornographic in nature, as would support application main two feet away from patrons during perform- of the intermediate scrutiny standard, for purpose of ances, and defining "adult cabaret dancer" as a dancer First Amendment challenge; performing at an adult cabaret, who was sexually-ori- (6) secondary effects of adult cabarets were city's ented dancer, exotic dancer, stripper, or similar dan- primary concern in enacting ordinance, as would sup- cer, who focused the performance on or emphasized port application of the intermediate scrutiny standard; the dancer's breasts, genitals, or buttocks, on a regular (7) ordinance was narrowly tailored to serve substan- and substantial basis, was not void for vagueness; al-
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though some terms were subjective, the definition Const.Amend. 5. used a combination of terms, which provided suffi- cient clarity, to give dancers notice as to who quali- [9] Federal Courts 776 fied as an "adult cabaret dancer," for purpose of de- 170Bk776 Most Cited Cases termining application of the two-foot rule. [9] Federal Courts 802 [5] Constitutional Law 90.4(5) 170Bk802 Most Cited Cases 92k90.4(5) Most Cited Cases Court of Appeals reviews the district court's decision to grant summary judgment de novo, viewing the [5] Public Amusement and Entertainment evidence in the light most favorable to the nonmov- 9(2) ing party. Fed.Rules Civ.Proc.Rule 56, 28 U.S.C.A. 315Tk9(2) Most Cited Cases (Formerly 376k3.50 Theaters and Shows) [10] Constitutional Law 90.4(5) City ordinance, requiring adult cabaret dancers to re- 92k90.4(5) Most Cited Cases main two feet away from patrons during perform- [10] Public Amusement and Entertainment ances, and defining "adult cabaret dancer" as a dancer 9(2) performing at an adult cabaret, who was sexually-ori- 315Tk9(2) Most Cited Cases ented dancer, exotic dancer, stripper, or similar dan- (Formerly 376k3.50 Theaters and Shows) cer, who focused the performance on or emphasized City ordinance, requiring adult cabaret dancers to re- the dancer's breasts, genitals, or buttocks, on a regular main two feet away from patrons during perform- and substantial basis, was not overbroad; perform- ances, was not a complete ban on protected expres- ances occurring outside of an adult cabaret or that did sion, for purpose of determining if ordinance violated not have a sexual emphasis were unaffected by ordin- First Amendment's guarantees of freedom of speech ance, and there was no realistic danger that ordinance and expression; ordinance required that dancers would significantly compromise rights protected un- project their erotic message from a slight distance, der the First Amendment. U.S.C.A. Const.Amend. 1. but did not ban erotic dancing altogether. U.S.C.A. [6] Constitutional Law 82(4) Const.Amend. 1. 92k82(4) Most Cited Cases [11] Constitutional Law 90(3) The mere fact that one can conceive of some imper- 92k90(3) Most Cited Cases missible applications of a statute is not sufficient to Content-based regulations are normally subject to render it susceptible to an overbreadth challenge. strict scrutiny, for purpose of determining if regula- [7] Eminent Domain 81.1 tions violate the First Amendment's guarantee of free- 148k81.1 Most Cited Cases dom of expression. U.S.C.A. Const.Amend. 1. In order to state a claim under the Takings Clause, a [12] Constitutional Law 90.4(1) plaintiff must first demonstrate that he possesses a 92k90.4(1) Most Cited Cases property interest that is constitutionally protected. Content-based regulations may be analyzed under in- U.S.C.A. Const.Amend. 5. termediate scrutiny, rather than strict scrutiny, for [8] Eminent Domain 81.1 purpose of determining violation of the First Amend- 148k81.1 Most Cited Cases ment's guarantee of freedom of expression, if two Owner of adult entertainment club and club dancers conditions are met: (1) the ordinance regulates speech failed to demonstrate that city ordinance requiring that is sexual or pornographic in nature, and (2) the adult cabaret dancers to remain two feet away from primary motivation behind the regulation is to pre- patrons during performances violated the Takings vent secondary effects. U.S.C.A. Const.Amend. 1. Clause, absent identification of a property interest [13] Constitutional Law 90.4(5) with which the ordinance interfered. U.S.C.A. 92k90.4(5) Most Cited Cases
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City ordinance, requiring adult cabaret dancers to re- ary effects. U.S.C.A. Const.Amend. 1. main two feet away from patrons during perform- ances, and defining "adult cabaret dancer" as a dancer [17] Constitutional Law 90(3) performing at an adult cabaret, who was sexually-ori- 92k90(3) Most Cited Cases ented dancer, exotic dancer, stripper, or similar dan- A statute will survive intermediate scrutiny, in a First cer, who focused the performance on or emphasized Amendment challenge, if it: (1) is designed to serve a the dancer's breasts, genitals, or buttocks, on a regular substantial government interest, (2) is narrowly and substantial basis, regulated expression that was tailored to serve that interest, and (3) leaves open al- sexual or pornographic in nature, as would support ternative avenues of communication. U.S.C.A. application of the intermediate scrutiny standard, Const.Amend. 1. rather than the strict scrutiny standard, for purpose of [18] Constitutional Law 90.4(5) First Amendment challenge to ordinance; although 92k90.4(5) Most Cited Cases dancers wore minimal clothing when performing for individual patrons off stage, dancers performed nude [18] Public Amusement and Entertainment on stage, and the focus of the performance was sexu- 9(2) al. U.S.C.A. Const.Amend. 1. 315Tk9(2) Most Cited Cases (Formerly 376k3.50 Theaters and Shows) [14] Constitutional Law 90.4(1) City demonstrated connection between its ordinance, 92k90.4(1) Most Cited Cases requiring adult cabaret dancers to remain two feet Court of Appeals generally accepts that the purpose away from patrons during performances, and the sec- of a regulation on adult businesses is to combat sec- ondary effects that the ordinance was intended to ad- ondary effects, as would warrant application of inter- dress, including crime, protection of retail trade, mediate scrutiny standard for purpose of First maintenance of property values, demonstrating that Amendment challenge, if the enactment can be justi- ordinance was designed to serve substantial govern- fied without reference to speech. U.S.C.A. ment interest, for purpose of intermediate scrutiny Const.Amend. 1. analysis of First Amendment challenge; city was [15] Constitutional Law 90.4(1) presented with 17 studies on secondary effects of 92k90.4(1) Most Cited Cases adult businesses, declarations from vice officers, in- To determine the purpose of a municipal ordinance terviews with nude dancers, and a presentation on the regulating adult businesses, in order to decide wheth- harmful effects of pornography, and there was no re- er to apply strict scrutiny or intermediate scrutiny, the quirement that city rely only on evidence targeting Court of Appeals looks to objective indicators of in- the exact problem of tent. exotic dancing. U.S.C.A. Const.Amend. 1. [16] Constitutional Law 90.4(5) [19] Constitutional Law 90.4(1) 92k90.4(5) Most Cited Cases 92k90.4(1) Most Cited Cases Secondary effects of adult businesses were city's So long as whatever evidence the city relies upon to primary concern in enacting ordinance, requiring demonstrate that an ordinance regulating adult busi- adult cabaret dancers to remain two feet away from nesses serves substantial government interests is reas- patrons during performances, as would support ap- onably believed to be relevant to the problem that the plication of the intermediate scrutiny standard, rather city addresses, it is sufficient to support the ordin- than the strict scrutiny standard, for purpose of First ance, for purpose of First Amendment challenge un- Amendment challenge to ordinance; ordinance stated der intermediate scrutiny standard. U.S.C.A. that it was necessary for protection of the welfare of Const.Amend. 1. the public, as result of potential negative secondary effects, including crime, protection of retail trade, [20] Constitutional Law 90.4(5) and maintenance of property values, and the two-foot 92k90.4(5) Most Cited Cases rule was logically linked to preventing such second-
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[20] Public Amusement and Entertainment *1118 Scott W. Wellman and Stuart Miller, Wellman 9(2) & Warren, Laguna Hills, CA, for the plaintiffs-ap- 315Tk9(2) Most Cited Cases pellants. (Formerly 376k3.50 Theaters and Shows) City ordinance, requiring adult cabaret dancers to re- Deborah J. Fox and Dawn A. McIntosh, Fox & So- main two feet away from patrons during perform- hagi, Los Angeles, CA, for the defendant-appellee. ances, was narrowly tailored to serve substantial gov- Scott D. Bergthold, Chattanooga, TN, for Amicus ernment interest of preventing secondary effects of Curiae League of California Cities. adult businesses, including crime, protection of retail trade, maintenance of property values, for purpose of Appeal from the United States District Court for the intermediate scrutiny analysis of First Amendment Central District of California; Gary L. Taylor, Dis- challenge; ordinance would prevent exchange of trict Judge, Presiding. D.C. No. CV-03- 00911-GLT. money or drugs and touching of patrons. U.S.C.A. Const.Amend. 1. Before: TASHIMA, FISHER, and TALLMAN, Cir- cuit Judges. [21] Constitutional Law 90.4(5) 92k90.4(5) Most Cited Cases TALLMAN, Circuit Judge.
[21] Public Amusement and Entertainment This case involves constitutional challenges to a city 9(2) ordinance requiring "adult cabaret dancers" to remain 315Tk9(2) Most Cited Cases two feet away from patrons during performances. (Formerly 376k3.50 Theaters and Shows) The district court rejected these challenges by dis- City ordinance, requiring adult cabaret dancers to re- missing some of the Appellants' claims on the plead- main two feet away from patrons during perform- ings and granting summary judgment as to other ances, left open alternative avenues of expression, for claims. We denied emergency motions for a stay of purpose of determining if ordinance violated First enforcement of the Ordinance pending appeal and Amendment's guarantees of freedom of speech and now affirm. expression, under intermediate scrutiny standard; dancers could still convey their erotic message from a I slight distance. U.S.C.A. Const.Amend. 1. The City of La Habra's (City's) Municipal Ordinance 1626 ("Ordinance") regulates adult businesses. The [22] Constitutional Law 90.4(5) first section of the Ordinance contains extensive find- 92k90.4(5) Most Cited Cases ings that adult businesses generate crime, economic harm, and the spread of sexually transmitted diseases. [22] Public Amusement and Entertainment These findings are based on studies and police de- 9(2) clarations from other jurisdictions, federal and state 315Tk9(2) Most Cited Cases judicial opinions, and public health data from sur- (Formerly 376k3.50 Theaters and Shows) rounding southern California counties. Ordinance, § City ordinance, requiring adult cabaret dancers to re- 1. Other sections of the Ordinance contain regula- main two feet away from patrons during perform- tions purporting to address the secondary effects de- ances, did not violate First Amendment guarantee of scribed in the first section, including a prohibition of freedom of expression; ordinance was thoroughly re- physical contact between patrons and performers (the searched and narrowly-tailored to address substantial "no-touch rule") and a requirement that adult cabaret government interest of preventing secondary dancers perform at least two feet away from their pat- effects of adult businesses, such as crime, and ordin- rons (the "two-foot rule"). Ordinance, §§ 4, 7. The ance left alternative channels of communication open Appellants are Bill Badi Gammoh, the owner of an by allowing dancers to perform at slight distance. adult establishment in the City, several dancers at U.S.C.A. Const.Amend. 1. Gammoh's club, and a dancer who has been offered
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employment at Gammoh's club but has not yet accep- oriented dancer, exotic dancer, stripper, go-go dan- ted it. Gammoh's establishment, which does not serve cer or similar dancer whose performance on a regu- alcoholic beverages, features entertainment by dan- lar and substantial basis focuses on or emphasizes cers who perform nude on stage and then dress in the adult cabaret dancer's breasts, genitals, and or minimal clothing before offering one-on-one offstage buttocks, but does not involve exposure of "spe- dances. [FN1] The Appellants do not challenge the cified anatomical areas" or depicting or engaging provisions of the Ordinance governing on-stage dan- in "specified sexual activities." Adult cabaret dan- cing and other aspects of the *1119 operation of an cer does not include a patron. adult cabaret; they challenge only the two-foot rule. Ordinance, § 4. The district court rejected the Appel- lants' assertion that this definition is vague and over- FN1. Early in this litigation before the dis- broad because it contains subjective terms. We re- trict court the Appellants used the term "lap view the district court's ruling de novo. See United dance" to refer to these performances. They States v. Rodriguez, 360 F.3d 949, 953 (9th later distanced themselves from this term, Cir.2004); United States v. Linick, 195 F.3d 538, 541 preferring "clothed proximate dancing" in- (9th Cir.1999). stead. We reference these individual, close- up performances using the term "offstage A dancing" because the City regulates nude [2][3] To survive a vagueness challenge, a regulation on-stage performances separately from par- must "define the criminal offense with sufficient def- tially-clothed offstage performances and it is initeness that ordinary people can understand what the latter set of regulations that are chal- conduct is prohibited and in a manner that does not lenged here. encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. Three weeks after the City Council passed the Ordin- 1855, 75 L.Ed.2d 903 (1983); see also United States ance, the Appellants filed their constitutional chal- v. Adams, 343 F.3d 1024, 1035 (9th Cir.2003), cert. lenge in the Superior Court of California for Orange denied, --- U.S. ----, 124 S.Ct. 2871, 159 L.Ed.2d 779 County. The case was subsequently removed to the (2004). A greater degree of specificity and clarity is United States District Court for the Central District of required when First Amendment rights are at stake. California. The Appellants were unsuccessful before Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1057 (9th the district court. In addition to other rulings that the Cir.1986). Appellants do not challenge on appeal, the district court dismissed the Appellants' overbreadth argument The Appellants argue that the subjective language and part of their vagueness challenge with prejudice, used to define an "adult cabaret dancer" makes the and entered summary judgment in favor of the City definition, and thus the Ordinance, unconstitutionally on their regulatory takings claim, a First Amendment vague. Cf. City of Chicago v. Morales, 527 U.S. 41, challenge, and the remaining vagueness argument. 56- 64, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) The Appellants pursue their vagueness, overbreadth, (holding a provision criminalizing loitering, which is takings, and free speech and expression claims on ap- defined as "to remain in any one place with no appar- peal. ent purpose," void for vagueness because the provi- sion was "inherently subjective because its applica- II tion depends on whether some purpose is 'apparent' to [1] The Ordinance's two-foot rule applies exclusively the officer on the scene"); Tucson Woman's Clinic v. to "adult cabaret dancers." The Ordinance defines an Eden, 379 F.3d 531, 554- 55 (9th Cir.2004) (holding "adult cabaret dancer" as: a statute requiring physicians to treat patients "with any person who is an employee or independent consideration, respect, and full recognition of the pa- contractor of an "adult cabaret" or "adult business" tient's dignity and individuality" void for vagueness and who, with or without any compensation or oth- because it "subjected physicians to sanctions based er form of consideration, performs as a sexually- not on their own objective behavior, but on the sub-
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jective viewpoint of others") (internal quotation and ance. Each of the five limitations provides context in citation omitted); Free Speech Coalition v. Reno, 198 which the other limitations may be clearly under- F.3d 1083, 1095 (9th Cir.1999), aff'd sub nom. stood. The definition as a whole gives notice to per- *1120Ashcroft v. Free Speech Coalition, 535 U.S. formers and ample guidance to law enforcement of- 234, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) ficers as to who is and who is not an "adult cabaret (holding a provision that criminalized sexually expli- dancer." cit images that "appear[ ] to be a minor" or "convey the impression" that a minor is depicted unconstitu- FN2. The City of La Habra Code defines tionally vague because it was unclear "whose per- "adult cabaret" as: spective defines the appearance of a minor, or whose a nightclub, bar or other establishment impression that a minor is involved leads to criminal (whether or not serving alcoholic beverages) prosecution"). which features live performances by topless and/or bottomless dancers, go-go dancers, Several of the terms within the Ordinance's definition exotic dancers, strippers, or similar enter- of "adult cabaret dancer"--"sexually oriented dancer," tainers, and where such performances are "exotic dancer," "similar dancer," "regular basis," and distinguished or characterized by their em- "focuses on or emphasizes"--are unarguably subject- phasis on matter depicting, describing or re- ive. However, two main factors distinguish the Or- lating to "specified sexual activities" or "spe- dinance from cases such as Morales, Tucson Wo- cified anatomical areas." man's Clinic, and Free Speech Coalition, where the City of La Habra Code § 18.60.010. regulations were held to be too subjective to give no- tice to ordinary people or guidance to law enforce- Furthermore, although the definition of an "adult cab- ment: 1) the subjective terms in the Ordinance are aret dancer" contains subjective terms, the prohibited used in combination with other terms, and 2) the sub- conduct is defined objectively. It is not illegal to be jective terms do not define prohibited conduct. an adult cabaret dancer; only to be an adult cabaret dancer performing within two feet of a patron. This [4] This circuit has previously recognized that other- distinction introduces additional objectivity into the wise imprecise terms may avoid vagueness problems Ordinance because the act that is prohibited--being when used in combination with terms that provide within two feet of a patron--is certainly not vague. sufficient clarity. See Kev, 793 F.2d at 1057 (holding [FN3] that an ordinance prohibiting dancers from "caress- ing" and "fondling" patrons was not vague "in the FN3. The appellant dancers argue that they context of the other definitions provided in the ordin- will not relinquish their proximity to pat- ance" at issue). In this case, the district court recog- rons, and thus need to know how not to be nized that the two-foot rule applies only to "adult "adult cabaret dancers." In other words, they cabaret dancers" who meet the following five quali- assert that they need to know how to contin- fications: 1) the individual must perform at an "adult ue their sexually expressive performances cabaret"; [FN2] 2) the performer must perform as a within two feet of their patrons. This, sexually-oriented dancer, exotic dancer, stripper, or however, is exactly what the Ordinance pro- similar dancer; 3) the performance must focus on or hibits. The fact that the regulation will ne- emphasize the performer's breasts, genitals, and/or cessarily alter the dancers' conduct does not buttocks; 4) the performance must have this focus or make it vague. emphasis on a regular basis; and 5) the performance *1121 Vagueness doctrine cannot be understood in a must have this focus or emphasis on a substantial manner that prohibits governments from addressing basis. Thus, an "adult cabaret dancer" is defined by a problems that are difficult to define in objective combination of features, not by any one subjective terms. See Grayned v. City of Rockford, 408 U.S. term. The combined terms outline the performer, the 104, 110, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972) ("we place of the performance, and the type of perform-
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can never expect mathematical certainty from our However, if they occur within an adult cabaret and language"). In this case, a combination of subjective the performer meets all five prongs of the definition and objective terms is used to give a clear picture of of "adult cabaret dancer," these performances fall an "adult cabaret dancer" and the conduct prohibited within the statute's legitimate sweep. of such a dancer is defined objectively. Thus, the definition of "adult cabaret dancer" is sufficiently Regardless of whether the dance is a tango or more clear to give notice to performers and guidance to law typical adult entertainment, requiring a two-foot sep- enforcement. See Cal. Teachers Ass'n v. State Bd. of aration between dance partners in this highly-charged Educ., 271 F.3d 1141, 1150 (9th Cir.2001) ("perfect sexual atmosphere may reasonably advance the City's clarity is not required even when a law regulates pro- legitimate goal of reducing secondary effects of adult tected speech"). entertainment. The two-foot rule may, for example, provide a line of sight for enforcement of the "no B touch" rule and prevent exchanges of money and [5] The Appellants claim that the definition of "adult drugs. When performed in an adult cabaret, these per- cabaret dancer" is overbroad because it could apply formances, even if done in an Elvis costume, are thus to mainstream or avant-garde performances as well as within the statute's legitimate reach. adult entertainment. The Supreme Court and this cir- cuit have emphasized that "where a statute regulates [6] Even if the Appellants were able to identify per- expressive conduct, the scope of the statute does not formances that fulfill all aspects of an "adult cabaret render it unconstitutional unless its overbreadth is not dancer" but are not tied to the secondary effects the only real, but substantial as well, judged in relation to statute is designed to address, "the mere fact that one the statute's plainly legitimate sweep." World Wide can conceive of some impermissible applications of a Video of Washington, Inc. v. City of Spokane, 368 statute is not sufficient to render it susceptible to an F.3d 1186, 1198 (9th Cir.2004) (quoting Osborne v. overbreadth challenge." *1122Members of City Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 Council of City of Los Angeles v. Taxpayers for Vin- L.Ed.2d 98 (1990) (internal quotations omitted)). In cent, 466 U.S. 789, 800, 104 S.Ct. 2118, 80 L.Ed.2d this case, potentially overbroad applications of the 772 (1984). Although we recognize that "the First Ordinance are minimal because performances occur- Amendment needs breathing space," World Wide ring outside of an adult cabaret are unaffected by the Video, 368 F.3d at 1198, in this situation there is no Ordinance, and those occurring in an adult cabaret "realistic danger that the statute itself will signific- and containing the sexual emphasis that defines an antly compromise recognized First Amendment pro- "adult cabaret dancer" are within the Ordinance's le- tections of parties not before the Court." Taxpayers gitimate sweep. for Vincent, 466 U.S. at 801, 104 S.Ct. 2118. If an overbroad application of the Ordinance exists, it is in- The Appellants were unable to cite any example of a substantial when "judged in relation to the statute's performance that would fall within the Ordinance to plainly legitimate sweep." See Broadrick v. Ok- which application of the Ordinance's restrictions lahoma, 413 U.S. 601, 612-15, 93 S.Ct. 2908, 37 would be overbroad. The examples proffered- L.Ed.2d 830 (1973). -including a duet, a tango, and an Elvis impersonator- -are unpersuasive. A pas de deux, a ballroom dance, III and an impersonation of the King each escapes the The district court dismissed the Appellants' regulat- two-foot limitation unless performed in an establish- ory takings claim on summary judgment. We review ment which features live performances by "topless this decision de novo. Cal. First Amend. Coalition v. and/or bottomless dancers, go-go dancers, exotic dan- Calderon, 150 F.3d 976, 980 (9th Cir.1998). We cers, strippers or similar entertainers" characterized "must determine, viewing the evidence in the light by an emphasis on " 'specified sexual activities' or most favorable to the non-moving party, whether 'specified anatomical areas.' " See supra note 2 there are any genuine issues of material fact and (quoting City of La Habra Code § 18.60.010(C)). whether the district court correctly applied the sub-
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stantive law." Id. clude that it is not.
[7][8] The takings clause of the Fifth Amendment The two-foot rule merely requires that dancers give protects private property from being taken for public their performances from a slight distance; it does not use without just compensation. U.S. CONST. amend. prohibit them from giving their performances alto- V (emphasis added). "In order to state a claim under gether. The rule limits the dancers' freedom to convey the Takings Clause, a plaintiff must first demonstrate their erotic message but does not prohibit them from that he possesses a 'property interest' that is constitu- performing erotic one-on-one-dances for patrons. See tionally protected." Schneider v. Cal. Dep't Corr., *1123Renton, 475 U.S. at 46, 106 S.Ct. 925. Because 151 F.3d 1194, 1198 (9th Cir.1998) (internal citation the dancers' performances may continue, albeit from omitted). The Appellants have not here pointed to a a slight distance, this case stands in sharp contrast to "property interest" interfered with by the City of La our recent decision in Dream Palace v. County of Habra's regulation of the dancers' conduct. [FN4] The Maricopa, where we applied strict scrutiny to an or- district court thus properly dismissed the Appellants' dinance regulating adult businesses because even the takings claim. county conceded that the ordinance was a complete ban on nude and semi-nude dancing. 384 F.3d 990, FN4. Certainly Mr. Gammoh and the dan- 1018 (9th Cir.2004). Here, the Ordinance prescribes cers may suffer economic losses if patrons where offstage dancing can occur (at least two feet are unwilling to pay for dances that must be away from patrons) but it does not ban any form of at least two feet away from customers. Their dance. claim of right to this stream of income was essentially the basis of the vested rights ar- The Appellants argue that close propinquity to pat- gument that the Appellants made before the rons is a key element of the dancers' expressive activ- district court. The district court rejected this ity, and that the Ordinance is therefore a complete argument on summary judgment, and Appel- ban on a form of expression: "proximate dancing." lants did not appeal that ruling. This argument has been made and rejected in this cir- cuit. See Colacurcio v. City of Kent, 163 F.3d 545, IV 549, 555 (9th Cir.1998) (rejecting the argument that [9] The Appellants argue that the Ordinance violates because "table dancing" is a unique form of dancing the First Amendment's guarantees of freedom of requiring proximity, a ten-foot separation require- speech and expression. The district court evaluated ment is a complete ban on this form of expression). It the Ordinance under intermediate scrutiny and de- is true that if the dancers' expressive activity is con- termined that the Appellants' First Amendment rights sidered "erotic dance within two feet of patrons" and had not been violated. We review the district court's not merely "erotic dance," this activity is completely decision to grant summary judgment de novo, view- banned. However, virtually no ordinance would sur- ing the evidence in the light most favorable to the vive this analysis: the "expression" at issue could al- Appellants and looking for genuine issues of material ways be defined to include the contested restriction. fact. See Calderon, 150 F.3d at 980. See id. at 556 (rejecting the idea that the applicable "forum" for a table dance is the area within ten feet of A the performer). Protected expression is not so nar- [10] First, we must determine whether the Ordinance rowly defined. See Dream Palace, 384 F.3d at is a complete ban on protected expression. See Ctr. 1019-20 (recognizing that the regulations in Renton for Fair Pub. Policy v. Maricopa County, 336 F.3d and its progeny did not "proscribe absolutely certain 1153, 1164 (9th Cir.2003) (plurality opinion) (citing types of adult entertainment" and instead enacted reg- City of Los Angeles v. Alameda Books, Inc., 535 U.S. ulations that "avoid[ed] a total ban on protected ex- 425, 434, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), pression"). and Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). We con- "While the dancer's erotic message may be slightly
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less effective from [two] feet, the ability to engage in performances (although they perform nude on stage). the protected expression is not significantly im- The Appellants argue that the dancers' expressive paired." Kev, 793 F.2d at 1061. We hold that the Or- activity is not sexual or pornographic because the dinance is not a complete ban on a protected form of dancers are "fully clothed." However, the appellant expression. dancers testified that their outfits for offstage dancing include bikinis and g-strings, sometimes paired with B a sheer skirt or top; at the very least, these accouter- Next, we must determine what level of scrutiny prop- ments stretch the term "fully-clothed." The dancers erly applies. See Ctr. for Fair Pub. Policy, 336 F.3d do cover their breasts and genitalia, but their argu- at 1164. Traditionally, the Court has utilized a dis- ment that this removes their performances from the tinction between content-based and content-neutral sphere of "sexual speech" ignores the context in regulations to determine the appropriate level of scru- which their offstage performances occur--in an adult tiny. See e.g., Renton, 475 U.S. at 46-47, 106 S.Ct. cabaret, minutes after the dancers have performed 925. Time, place, and manner restrictions on adult nude on stage. See Kev, 793 F.2d at 1061 n. 12 businesses were considered content-neutral. Id. at 48, (noting that "consideration of a forum's special attrib- 106 S.Ct. 925. utes is relevant to the constitutionality of a regulation since the significance of the governmental interest [11] Recently, however, the Supreme Court has re- must be assessed in light of the characteristic nature cognized that virtually all regulation of adult busi- and function of the particular forum involved") nesses is content-based. See Alameda Books, 535 (quoting Heffron v. Int'l Soc'y for Krishna Conscious- U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., concur- ness, 452 U.S. 640, 650-51, 101 S.Ct. 2559, 69 ring); see also Ctr. for Fair Pub. Policy, 336 F.3d at L.Ed.2d 298 (1981)). 1161 (recognizing Justice Kennedy's opinion in Alameda Books as controlling because it is the nar- There is certainly a point along the continuum where rowest opinion joining the plurality's judgment). Con- suggestive speech no longer falls within the "sexual tent-based regulations are normally subject to strict or pornographic" exception to the requirement of scrutiny. See Simon & Schuster, Inc. v. Members of strict scrutiny. We are mindful that this case pushes N.Y. State Crime Victims Bd., 502 U.S. 105, 118, 112 us closer to that point than those cases where per- S.Ct. 501, 116 L.Ed.2d 476 (1991) (describing the formers are nude or topless. "Sexual speech" has nev- "necessary to serve a compelling state interest" strict er been explicitly defined, but the appellant dancers' scrutiny test). performances, which "focus[ ] on or emphasize[ ] ... breasts, genitals, and or buttocks," occur in adult es- [12] However, designating regulation of adult estab- tablishments, are conducted by dancers who also per- lishments as content-based does not end the inquiry form nude, and involve minimal clothing, are cer- as to the appropriate standard of review. Content- tainly within the limits of "sexual speech." We there- based regulations may be analyzed under intermedi- fore review the Ordinance as a regulation of "sexual ate scrutiny if two conditions are met: 1) the ordin- or pornographic speech" and proceed to consider ance regulates speech that is sexual or pornographic whether reducing the secondary effects of adult es- in nature; and 2) the primary motivation behind the tablishments is the Ordinance's primary purpose. regulation is to prevent secondary effects. Ctr. for Fair Pub. Policy, 336 F.3d at 1164- 65 *1124 (citing 2 Alameda Books, 535 U.S. at 434, 448, 122 S.Ct. [14] We generally accept that a regulation's purpose 1728). is to combat secondary effects if the enactment can be justified without reference to speech. See 1 Colacurcio, 163 F.3d at 551-52 (citing Kev, 793 F.2d [13] The Appellants differ from plaintiffs in previous at 1058-59). We have recognized that "so long as the cases regarding the regulation of adult businesses in regulation is designed to combat the secondary ef- that they wear minimal clothing for their offstage fects of [adult] establishments on the surrounding
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community, namely[ ] crime rates, property values, of life, the increased threat of the spread of sexu- and the quality of the city's neighborhoods ... then it ally transmitted diseases, and the protection of the is subject to intermediate scrutiny." Ctr. for Fair Pub. peace, welfare and privacy of persons who patron- Policy, 336 F.3d at 1164-65 (internal citation and ize adult businesses. quotation omitted); see also Colacurcio, 163 F.3d at Ordinance, § 1(A). This statement of purpose is sup- 551 (9th Cir.1998) (noting that an ordinance is sub- ported by regulatory provisions that are logically ject to intermediate scrutiny if its "predominant pur- linked to the secondary effects, such as solicitation of pose" is combating secondary effects). For plaintiffs, prostitution and drug transactions, that the City iden- this is "a difficult standard to overcome." Colacurcio, tified: the Ordinance forbids contact between patrons 163 F.3d at 552. and performers and, to make this rule enforceable, re- quires a two-foot separation between patrons and per- [15][16] To determine the purpose of the Ordinance, formers. Both the two-foot rule and the no-touching we look to "objective indicators of intent." Id. at 552; rule are reasonably linked to the secondary effects see also Ctr. for Fair Pub. Policy, 336 F.3d at 1165. that the City identifies as its purpose in enacting the In this case we have the materials that the City Coun- Ordinance. cil considered in determining whether to enact the Ordinance and the Ordinance itself. These indicators We are not persuaded by the Appellants' argument demonstrate that secondary effects were the City that a speech-reducing motive is demonstrated by the Council's concern. fact that proximity between patrons and dancers is al- lowed when the dancers are not performing. The City The record indicates that the City Council was may reasonably have decided that such regulations presented with several volumes of materials prior to were impractical or unnecessary. The Appellants enacting the Ordinance. These included studies of presented no evidence to support their speculation secondary effects, declarations from police officers, that the City chose only to regulate dancers when reports on sexually transmitted diseases, and *1125 they are performing because it wished to regulate the various other evidence. In a report to the City Coun- performances' expressive content. cil, the City Attorney recommended action to address the secondary effects reported in these resources: We are also unpersuaded by the Appellants' argument "[i]n reviewing the City's existing regulations and in that a speech-reducing motive is demonstrated by a light of the extensive existing case law and support- City employee's testimony that he overheard ing studies, we conclude that this Ordinance is neces- someone in staff meetings say that they wanted to sary to reduce and/or preclude these secondary ef- drive appellant Gammoh out of business. The Appel- fects." Our review of the materials that the City lants presented no evidence that the person who made Council considered indicates that concern about sec- these comments was on the City Council or affected ondary effects, as opposed to the content of the dan- the Council's decision to pass the Ordinance. Nothing cers' expression, motivated the challenged Ordinance. connects this testimony to the process by which the Ordinance was passed. The testimony therefore does The Ordinance itself also demonstrates that the City not create a genuine issue of material fact as to Council's purpose was to combat secondary effects. whether the City's stated goal of preventing second- The Ordinance states that it is: ary effects of adult businesses was its true purpose in necessary for the protection of the welfare of the enacting the Ordinance. people, as a result of the potential negative second- ary effects of adult businesses, including crime, the The Appellants have not raised a genuine issue as to protection of the city's retail trade, the prevention the City's motivation in enacting the Ordinance. As of blight in neighborhoods and the maintenance of Justice Kennedy wrote in Alameda Books, "[t]he or- property values, protecting and preserving the qual- dinance may be a covert attack on speech, but we ity of the city's neighborhoods and the city's com- should not presume it to be so." 535 U.S. at 447, 122 mercial districts, the protection of the city's quality S.Ct. 1728. The objective indicators of the City's in-
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tent demonstrate a desire to combat secondary ef- F.3d at 1166. fects, and the Appellants have adduced no evidence that draws this motivation into question. The Ordin- Because the City has met this burden, "[i]f plaintiffs ance must therefore be evaluated using intermediate fail to cast direct doubt on this rationale, either by scrutiny. demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence C that disputes the municipality's factual findings, the [17] A statute will survive intermediate scrutiny if it: municipality meets the standard set forth in Renton." 1) is designed to serve a *1126 substantial govern- Alameda Books, 535 U.S. at 438-39, 122 S.Ct. 1728, ment interest; 2) is narrowly tailored to serve that in- cited in Ctr. for Fair Pub. Policy, 336 F.3d at 1160. terest; and 3) leaves open alternative avenues of com- The Appellants attempt to cast doubt by arguing that munication. Ctr. for Fair Pub. Policy, 336 F.3d at the studies on which the City relies are flawed and ir- 1166; see also Renton, 475 U.S. at 50, 106 S.Ct. 925. relevant.
1 [19] The Appellants' proffered expert declared that Reducing the negative secondary effects of adult the City's evidence was flawed because "systematic- businesses is a substantial governmental interest. See ally collecting police call-for-service information" Ctr. for Fair Pub. Policy, 336 F.3d at 1166 ("It is and adhering to the Appellants' suggested methodolo- beyond peradventure at this point in the development gical standards were "the only reliable information" of the doctrine that a state's interest in curbing the that could have supported the City's concern. This is secondary effects associated with adult entertainment simply not the law. "[S]o long as whatever evidence establishments is substantial."). The Appellants con- the city relies upon is reasonably believed to be relev- cede that preventing secondary effects is a substantial ant to the problem that the city addresses [,]" it is suf- government interest, but argue that the City's evid- ficient to support the Ordinance. Renton, 475 U.S. at ence of secondary effects is flawed and inapplicable. 51-52, 106 S.Ct. 925. [FN5] While we do not *1127 We disagree. permit legislative bodies to rely on shoddy data, we also will not specify the methodological standards to [18] The pre-enactment record in this case is substan- which their evidence must conform. See id. at 51, 106 tial. Cf. id. at 1167-68 (describing the record as "a S.Ct. 925; see also Alameda Books, 535 U.S. at 451, slim one" and "hardly overwhelming" but concluding 122 S.Ct. 1728 (Kennedy, J., concurring) ("As a gen- that the studies and public hearings relied on by the eral matter, courts should not be in the business of legislature were sufficient to demonstrate a connec- second-guessing fact-bound empirical assessments of tion between the regulated activity and secondary ef- city planners."). The Appellants have failed to create fects). The City Council was presented with, inter a genuine issue of material fact as to the reliability of alia, seventeen studies on secondary effects of adult the collection of evidence upon which the City relied. businesses, a summary of some of these studies, the 1986 Attorney General's Report on Pornography, de- FN5. The Seventh Circuit has succinctly ex- clarations from investigating vice officers, an inter- plained why clear proof of secondary effects view with nude dancers, a presentation on the harm- is not required: ful effects of pornography in nearby Los Angeles, nu- A requirement of Daubert [v. Merrell Dow merous reports on AIDS and other sexually transmit- Pharmaceuticals, Inc., 509 U.S. 579, 113 ted diseases, and thirty-nine judicial decisions in the S.Ct. 2786, 125 L.Ed.2d 469 area of regulation of adult businesses. These studies (1993)]--quality evidence would impose an and reports meet the City's burden to produce evid- unreasonable burden on the legislative pro- ence demonstrating a connection between its regula- cess, and further would be logical only if tions and the secondary effects that the Ordinance is Alameda Books required a regulating body intended to address. See Alameda Books, 535 U.S. at to prove that its regulation would- 441, 122 S.Ct. 1728; Ctr. for Fair Pub. Policy, 336 -undeniably--reduce adverse secondary ef-
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fects. Alameda Books clearly did not impose ondary effects of adult establishments. The Ordin- such a requirement. ance therefore survives the first prong of the Renton G.M. Enters., Inc. v. Town of St. Joseph, test. Wis., 350 F.3d 631, 640 (7th Cir.2003). 2 The Appellants also argue that even if the City's evid- [20] Our next consideration is whether the City's two- ence is reliable, it is irrelevant because it does not foot rule is narrowly tailored to address the problem measure the secondary effects of clothed perform- of secondary effects from adult entertainment. See ances. No precedent requires the City to obtain re- Ctr. for Fair Pub. Policy, 336 F.3d at 1166. The Or- search targeting the exact activity that it wishes to dinance's two-foot separation requirement is more regulate: the City is only required to rely on evidence narrow than other separation requirements that the "reasonably believed to be relevant" to the problem Ninth Circuit has upheld. See Colacurcio, 163 F.3d at being addressed. Alameda Books, 535 U.S. at 438, 553-54 (upholding a ten-foot separation require- 122 S.Ct. 1728. The studies upon which the City re- ment); BSA, Inc. v. King County, 804 F.2d 1104, lied evaluate the secondary effects of a variety of 1110-11 (9th Cir.1986) (upholding a six-foot separa- adult businesses--a category encompassing any busi- tion requirement); Kev, 793 F.2d at 1061-62 ness that would be affected by the Ordinance--and (upholding a ten-foot separation requirement). These are therefore unquestionably relevant. earlier cases involved nude or topless dancing, and therefore differ from the case before us. Nonetheless, The presence or absence of minimal clothing is not they guide us in now holding that in the context of a relevant to whether separation requirements fulfill the club that features on-stage nude dancing and offstage stated purpose of the Ordinance. This circuit recog- minimally clothed dancing, the City's two-foot separ- nizes that municipalities may reasonably find that ation requirement is narrowly tailored to prevent the separation requirements serve the interest of reducing exchange of money *1128 or drugs and to allow en- the secondary effects of adult establishments. "Buf- forcement of the "no touching" provisions. fers" between patrons and performers prevent the ex- change of money for prostitution or drug transactions 3 and allow enforcement of "no touching" provisions, [21] Finally, we consider whether the Ordinance which would otherwise be virtually unenforceable. leaves open alternative avenues of communication. See Colacurcio, 163 F.3d at 554. There is no reason See Ctr. for Fair Pub. Policy, 336 F.3d at 1166. This to believe that minimal clothing obviates the need for inquiry is analogous to that in Section IV(A), supra, these measures when the atmosphere is equally which concluded that the Ordinance is not a complete charged--money exchanges and touching are no more ban on protected expression. The challenged Ordin- difficult if the dancer is wearing minimal clothing ance leaves dancers free to convey their erotic mes- than if she is partially or fully nude. [FN6] sage as long as they are two feet away from patrons. Although the message may be slightly impaired from FN6. The City Council was presented with a this distance, it cannot be said that a dancer's per- report documenting an interview with formance "no longer conveys eroticism" from two former adult dancers from another jurisdic- feet away. Dream Palace, 384 F.3d at 1021 (internal tion in which the dancers indicated that soli- citation and quotation omitted). Because the dancer's citations for sexual favors occurred "whether erotic message may still be communicated from a the club is nude or not" and that drugs were slight distance, the Ordinance survives this final frequently passed during tipping. prong of the Renton analysis.
The Appellants have not presented evidence suffi- [22] As detailed above, the Ordinance's two-foot rule cient to create a genuine issue of material fact as to is narrowly tailored to address the City's concerns whether the two-foot rule is designed to serve a sub- about the secondary effects of adult establishments stantial governmental interest in preventing the sec- and leaves alternate channels of communication open
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by allowing dancers to perform at a two-foot dis- tance. The Ordinance survives intermediate scrutiny.
V The Ordinance was thoroughly researched and nar- rowly tailored to combat the negative side-effects of adult businesses that the City's research identified. Regulating adult businesses will always place the City's concerns in tension with First Amendment pro- tections. In this case, however, the City of La Habra designed an Ordinance that falls within what has pre- viously been accepted as constitutional in this circuit, despite the minimal amount of clothing that the ap- pellant dancers wear when performing. The Ordin- ance is not vague or overbroad, and the Appellants have raised no genuine issue of material fact regard- ing their takings or First Amendment claims. The judgment of the district court is therefore AF- FIRMED.
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Briefs and Other Related Documents (Back to top)
• 2004 WL 2606568 (Appellate Brief) Appellant's Reply Brief (Sep. 22, 2004)Original Image of this Document (PDF)
• 2004 WL 2203048 (Appellate Brief) Appellants' Brief (Aug. 09, 2004)Original Image of this Docu- ment (PDF)
• 04-56072 (Docket) (Jun. 21, 2004)
• (Appellate Brief) Brief of Amicus Curiae Legaue of California Cities, in Support of Appellee City of La Habra, Urging Affirmance (2004)Original Image of this Document (PDF)
END OF DOCUMENT
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substantial government interest in curbing secondary effects associated with adult entertainment establish- Briefs and Other Related Documents ments; (5) ordinance's requirement that managers of adult United States Court of Appeals, entertainment establishments obtain work permits Ninth Circuit. was a reasonable time, place, and manner restriction DREAM PALACE, an Arizona limited liability com- on free speech; and pany, dba Liberty Entertainment (6) ordinance, by effectively banning nude and semi- Group, LLC; Edmund Archuleta, Jr.; William Alkire; nude dancing through its prohibition on "simulated April Cope; Henry sex acts" during the course of a performance, violated Jenkins; Eugene Williams; Cari Elmore; Jennifer Mc- First Amendment free speech protections. Grath; Susan Roberts; Affirmed in part, reversed in part, and remanded. Rachel Russo; Haley Wheeler; Corina Reville; Jill Amante, Plaintiffs- Canby, Circuit Judge, filed concurring opinion. Appellants, v. West Headnotes COUNTY OF MARICOPA, a political subdivision of the State of Arizona, Defendant- [1] Constitutional Law 90(3) Appellee. 92k90(3) Most Cited Cases No. 00-16531. Alleged prior restraints on free speech will be upheld only if they provide for a prompt decision during Argued Feb. 11, 2003. which the status quo is maintained, and there is the Submitted and Filed Sept. 27, 2004. opportunity for a prompt judicial decision. U.S.C.A. Const.Amend. 1. Background: Adult nude dancing establishment and certain of its managers and employees brought action [2] Federal Civil Procedure 103.2 challenging constitutionality of county's adult enter- 170Ak103.2 Most Cited Cases tainment ordinance. The United States District Court The "doctrine of standing" addresses the question for the District of Arizona, Stephen M. McNamee, whether a party has a sufficient stake in an otherwise Chief Judge, entered judgment in favor of county, justiciable controversy to obtain judicial resolution of and plaintiffs appealed. that controversy.
Holdings: The Court of Appeals, O'Scannlain, Cir- [3] Federal Civil Procedure 103.2 cuit Judge, held that: 170Ak103.2 Most Cited Cases (1) ordinance's licensing requirement satisfied First [3] Federal Civil Procedure 103.3 Amendment requirements for prior restraints on 170Ak103.3 Most Cited Cases speech; At an irreducible minimum, Article III of the United (2) ordinance's requirement that managers and dan- States Constitution requires a litigant invoking the cers exhaust their administrative remedies prior to authority of a federal court to demonstrate: (1) that he seeking judicial review of denial of work permit was personally has suffered some actual or threatened in- not a prior restraint on free speech; jury as a result of the putatively illegal conduct of the (3) chilling effect on protected expression created by defendant, (2) that the injury fairly can be traced to ordinance required injunction prohibiting county the challenged action, and (3) that the injury is likely from disclosing personal information about adult en- to be redressed by a favorable decision. U.S.C.A. tertainers under state public records law; Const. Art. 3, § 1 et seq. (4) ordinance's hours of operations restrictions served [4] Constitutional Law 42.2(1)
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92k42.2(1) Most Cited Cases [10] Federal Courts 723.1 Under the overbreadth doctrine, a plaintiff may chal- 170Bk723.1 Most Cited Cases lenge government action by showing that it may in- If an event occurs while a case is pending on appeal hibit the First Amendment rights of parties not before that makes it impossible for the court to grant any ef- the court. U.S.C.A. Const.Amend. 1. fectual relief whatever to a prevailing party, the ap- peal is moot and must be dismissed; however, while a [5] Constitutional Law 42.2(1) court may not be able to return the parties to the 92k42.2(1) Most Cited Cases status quo ante, an appeal is not moot if the court can The overbreadth doctrine functions as an exception to fashion some form of meaningful relief. the general prohibition on a litigant's raising another person's legal rights, and is based on the idea that the [11] Federal Courts 724 very existence of some broadly written laws has the 170Bk724 Most Cited Cases potential to chill the expressive activity of others not Previously existing adult nude dancing establish- before the court. U.S.C.A. Const.Amend. 1. ment's overbreadth challenge to adult entertainment ordinance's licensing requirements was not rendered [6] Constitutional Law 42.2(1) moot on appeal after district court ruled that the or- 92k42.2(1) Most Cited Cases dinance was unconstitutional as applied to preexist- The overbreadth doctrine does not affect the rigid ing businesses, where county was in the process of constitutional requirement that plaintiffs must amending those provisions so that the challenged re- demonstrate an injury in fact to invoke a federal strictions would apply to pre-existing businesses. court's jurisdiction. U.S.C.A. Const.Amend. 1. U.S.C.A. Const.Amend. 1.
[7] Constitutional Law 42.2(1) [12] Constitutional Law 90(3) 92k42.2(1) Most Cited Cases 92k90(3) Most Cited Cases Previously existing adult nude dancing establishment A prior restraint on free speech exists when the en- had standing to appeal district court's decision that joyment of protected expression is contingent upon county adult entertainment ordinance's licensing re- the approval of government officials. U.S.C.A. quirements was unconstitutionally overbroad as ap- Const.Amend. 1. plied to new businesses; ordinance applied to both preexisting businesses and new businesses, and [13] Constitutional Law 90.4(3) plaintiff's refusal to apply for the necessary permit 92k90.4(3) Most Cited Cases placed it in danger of being prosecuted for noncom- pliance. U.S.C.A. Const. Art. 3, § 1 et seq.; U.S.C.A. [13] Public Amusement and Entertainment Const.Amend. 1. 9(1) 315Tk9(1) Most Cited Cases [8] Federal Civil Procedure 103.2 (Formerly 376k3 Theaters and Shows) 170Ak103.2 Most Cited Cases County adult entertainment ordinance requiring all businesses which come within its purview to apply [8] Federal Courts 12.1 for and to obtain a license before engaging in busi- 170Bk12.1 Most Cited Cases ness was a prior restraint on free speech. U.S.C.A. The issues of mootness and standing are closely re- Const.Amend. 1. lated, though circumstances that would not support standing as an initial matter may nevertheless be suf- [14] Constitutional Law 90(3) ficient to defeat a mootness challenge on appeal. 92k90(3) Most Cited Cases Prior restraints on free speech are not unconstitution- [9] Federal Courts 12.1 al per se. U.S.C.A. Const.Amend. 1. 170Bk12.1 Most Cited Cases The question of mootness focuses upon whether [15] Constitutional Law 90.4(3) courts can still grant relief between the parties. 92k90.4(3) Most Cited Cases
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[15] Public Amusement and Entertainment [19] Federal Courts 614 9(1) 170Bk614 Most Cited Cases 315Tk9(1) Most Cited Cases Adult nude dancing establishment's arguments, raised (Formerly 376k3 Theaters and Shows) for first time on appeal, that county adult entertain- County adult entertainment ordinance's licensing re- ment ordinance did not provide constitutionally suffi- quirement was not an unconstitutional prior restraint cient judicial review, fell within exception to rule on free speech because it placed the burden of proof precluding review of issues raised for first time on in the administrative appeals process on the license appeal; arguments were based entirely in law and did applicant. U.S.C.A. Const.Amend. 1. not rely on the factual record, and county had full op- portunity to brief its response to the new arguments. [16] Constitutional Law 90.4(1) 92k90.4(1) Most Cited Cases [20] Constitutional Law 90.4(3) First Amendment requires that an adult business sub- 92k90.4(3) Most Cited Cases ject to a licensing scheme not only have prompt ac- cess to the courts in the event the license is denied, [20] Public Amusement and Entertainment but also receive a prompt decision from the courts on 9(1) the legitimacy of such a denial. U.S.C.A. 315Tk9(1) Most Cited Cases Const.Amend. 1. (Formerly 376k3 Theaters and Shows) Licensing provision of county adult entertainment or- [17] Constitutional Law 90.4(3) dinance provided for constitutionally sufficient judi- 92k90.4(3) Most Cited Cases cial review to satisfy First Amendment requirements for prior restraints on speech, even if "special action" [17] Public Amusement and Entertainment review by Arizona courts provided for in ordinance 9(1) referred to a proceeding in which Arizona courts had 315Tk9(1) Most Cited Cases discretion to deny jurisdiction; ordinance also author- (Formerly 376k3 Theaters and Shows) ized appeal from a denial of license by any "other County adult entertainment ordinance's licensing re- available procedure," which would include suit for quirement, read in context of Arizona law, provided injunctive or declaratory relief. U.S.C.A. for a sufficiently prompt judicial determination of the Const.Amend. 1; A.R.S. § 12-1832. legitimacy of a license denial to satisfy First Amend- ment requirements for prior restraints on speech; Ari- [21] Constitutional Law 90.4(3) zona courts had procedural tools available if it was 92k90.4(3) Most Cited Cases necessary to expedite the review of a license denial, and licensing decision under ordinance depended on [21] Public Amusement and Entertainment a set of reasonably objective factors. U.S.C.A. 9(2) Const.Amend. 1. 315Tk9(2) Most Cited Cases (Formerly 376k3 Theaters and Shows) [18] Constitutional Law 90(3) County adult entertainment ordinance did not violate 92k90(3) Most Cited Cases First Amendment requirements for prior restraints on When the First Amendment requires certain safe- speech by placing the burden of proof on managers guards before a system of prior restraint may be en- and dancers in administrative proceedings challen- forced, a local government cannot evade that require- ging denial of work permit required by the ordinance; ment by pointing to its lack of legal authority to en- county did not exercise discretion by passing judg- sure such safeguards exist; nevertheless, nothing pre- ment on the content of any protected speech, and per- vents a county from relying on state law procedures mit applicants had incentive to vigorously pursue an to ensure that First Amendment interests are ad- administrative remedy in event of an adverse decision equately protected. U.S.C.A. Const.Amend. 1. on an application. U.S.C.A. Const.Amend. 1.
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[22] Constitutional Law 90.4(3) 212k16 Most Cited Cases 92k90.4(3) Most Cited Cases The requirements for the issuance of a permanent in- junction are (1) the [22] Public Amusement and Entertainment likelihood of substantial and immediate irreparable 9(1) injury; and (2) the inadequacy of remedies at law. 315Tk9(1) Most Cited Cases (Formerly 376k3 Theaters and Shows) [26] Federal Courts 814.1 County adult entertainment ordinance's requirement 170Bk814.1 Most Cited Cases that managers and dancers exhaust their administrat- The district court's refusal to grant a permanent in- ive remedies prior to seeking judicial review of deni- junction is reviewed for an abuse of discretion. al of work permit required by the ordinance was not a prior restraint on free speech; ordinance guaranteed a [27] Civil Rights 1456 "specified and reasonable time" within which an ad- 78k1456 Most Cited Cases ministrative decision was required, and permitted ap- Chilling effect on protected expression created by plicants to continue to work pending the outcome of work permit provision of county adult entertainment administrative and judicial review. U.S.C.A. ordinance, making confidentiality of personal inform- Const.Amend. 1. ation about adult entertainers in work permit applica- tions subject to requirements of state public records [23] Constitutional Law 90.4(3) law, required injunction prohibiting county from dis- 92k90.4(3) Most Cited Cases closing such information under the public records law; state law made such information presumptively [23] Public Amusement and Entertainment available to anyone, thus inhibiting the ability or the 9(2) inclination to engage in protected expression. 315Tk9(2) Most Cited Cases U.S.C.A. Const.Amend. 1; A.R.S. § 39-121. (Formerly 376k3 Theaters and Shows) Provision of county adult entertainment ordinance [28] Constitutional Law 90.4(3) placing the burden of seeking judicial review on 92k90.4(3) Most Cited Cases managers and dancers denied work permit required The First Amendment does not permit county to put under ordinance was not an unconstitutional prior re- employees of adult entertainment establishments to straint on free speech. U.S.C.A. Const.Amend. 1. the choice of either applying for a permit to engage in protected expression in circumstances where they ex- [24] Constitutional Law 90.4(3) pose themselves to unwelcome harassment from ag- 92k90.4(3) Most Cited Cases gressive suitors and overzealous opponents of such activity, or of choosing not to engage in such activity [24] Public Amusement and Entertainment out of concern for their personal safety. U.S.C.A. 9(1) Const.Amend. 1. 315Tk9(1) Most Cited Cases (Formerly 376k3 Theaters and Shows) [29] Constitutional Law 90.4(3) Provision of county adult entertainment ordinance re- 92k90.4(3) Most Cited Cases quiring disclosure of information regarding names, Hours of operation restrictions in county adult enter- addresses, and telephone numbers in manager and tainment ordinance, prohibiting provision of adult employee work permit applications did not violate services during nighttime hours, were designed to First Amendment free speech protections. U.S.C.A. combat secondary effects of adult entertainment es- Const.Amend. 1. tablishments on surrounding community, subjecting ordinance to intermediate scrutiny under First [25] Injunction 14 Amendment free speech analysis; ordinance's state- 212k14 Most Cited Cases ment of purpose stated that harmful secondary effects [25] Injunction 16 such as prostitution, drug abuse, and health risks,
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were more pronounced when conducted continuously 5,980 hour per year. U.S.C.A. Const.Amend. 1. or during late night hours, and county board heard extensive pre-enactment evidence regarding second- [33] Constitutional Law 46(1) ary effects. U.S.C.A. Const.Amend. 1. 92k46(1) Most Cited Cases First Amendment free speech challenge to county [30] Constitutional Law 90.4(3) adult entertainment ordinance's requirement that 92k90.4(3) Most Cited Cases managers of adult entertainment establishments wear identification cards during work hours was moot, [30] Public Amusement and Entertainment where public disclosure of personal information 9(1) about such managers had been ordered enjoined. 315Tk9(1) Most Cited Cases U.S.C.A. Const.Amend. 1. (Formerly 376k3 Theaters and Shows) Evidence established that hours of operations restric- [34] Constitutional Law 90.4(3) tions in county's adult entertainment ordinance were 92k90.4(3) Most Cited Cases designed to serve a substantial government interest in curbing the secondary effects associated with adult [34] Public Amusement and Entertainment entertainment establishments, as required by First 9(1) Amendment free speech protections; county board 315Tk9(1) Most Cited Cases considered comprehensive summaries detailing sec- (Formerly 376k3 Theaters and Shows) ondary effect findings from other jurisdictions, and County adult entertainment ordinance's requirement ordinance permitted adult businesses to operate ap- that managers of adult entertainment establishments proximately 5,980 hour per year. U.S.C.A. obtain work permits was a reasonable time, place, Const.Amend. 1. and manner restriction on free speech; legislative re- cord indicated that adult businesses were associated [31] Constitutional Law 90.4(3) with a variety of secondary effects, such as the pres- 92k90.4(3) Most Cited Cases ence of organized crime and money laundering, which directly involved employees in management [31] Public Amusement and Entertainment positions, and permit process could combat such ef- 35(1) fects by screening out potential managers with a 315Tk35(1) Most Cited Cases criminal history. U.S.C.A. Const.Amend. 1. (Formerly 376k3 Theaters and Shows) County had a substantial interest in curbing the sec- [35] Constitutional Law 90.4(3) ondary effects associated with adult entertainment es- 92k90.4(3) Most Cited Cases tablishments, in determining whether ordinance gov- erning such businesses violated First Amendment [35] Public Amusement and Entertainment free speech protections. U.S.C.A. Const.Amend. 1. 9(2) 315Tk9(2) Most Cited Cases [32] Constitutional Law 90.4(3) (Formerly 376k3.50 Theaters and Shows) 92k90.4(3) Most Cited Cases County adult entertainment ordinance, by effectively banning nude and semi-nude dancing through its pro- [32] Public Amusement and Entertainment hibition on "simulated sex acts" during the course of 9(1) a performance, exceeded scope of county's police 315Tk9(1) Most Cited Cases powers to restrict constitutionally protected expres- (Formerly 376k3 Theaters and Shows) sion; ordinance was not limited to establishments Hours of operations restrictions in county's adult en- holding a liquor license and restricted the particular tertainment ordinance did not unreasonably limit al- movements and gestures a dancer could make during ternative avenues of communication, as required by the course of a performance. U.S.C.A. Const.Amend. First Amendment free speech protections; ordinance 1. permitted adult businesses to operate approximately
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[36] Constitutional Law 90.4(3) of the ordinance; county board has clearly expressed 92k90.4(3) Most Cited Cases its intent that unconstitutional provisions were sever- able, and vast majority of the provisions in the ordin- [36] Public Amusement and Entertainment ance, including licensing scheme, and multiple oper- 9(2) ating restrictions, withstood constitutional scrutiny. 315Tk9(2) Most Cited Cases *995 G. Randall Garrou, Weston, Garrou & DeWitt, (Formerly 376k3.50 Theaters and Shows) Los Angeles, CA, argued the cause and filed briefs County adult entertainment ordinance, by effectively for appellant Dream Palace, et al. John H. Weston banning nude and semi-nude dancing through its pro- was on the briefs. hibition on "simulated sex acts" during the course of a performance, violated First Amendment free speech Scott E. Boehm, Copple, Chamberlin, Boehm & protections; ordinance restricted in sweeping terms Murphy, P.C., Phoenix, AZ, argued the cause and the ability of erotic dancers to convey their intended filed briefs for appellee Maricopa County. Terry E. erotic message. U.S.C.A. Const.Amend. 1. Eckhart, Office of Maricopa County Attorney, was on the briefs. [37] Federal Courts 18 170Bk18 Most Cited Cases Appeal from the United States District Court for the District court did not abuse its discretion when it de- District of Arizona; Stephen M. McNamee, District clined to exercise supplemental jurisdiction over state Judge, Presiding. D.C. No. CV-97-02357-SMM. law challenges to county adult entertainment ordin- ance, district court had decided each and every First Before: CANBY, O'SCANNLAIN, and W. Amendment claim over which it had original jurisdic- FLETCHER, Circuit Judges. tion, and remaining state law claims, concerning is- Opinion by Judge O'SCANNLAIN; Concurrence by sues of the balance of power between state and local Judge CANBY. authorities in Arizona, involved delicate issues of state law. U.S.C.A. Const.Amend. 1; 28 U.S.C.A. § *996 O'SCANNLAIN, Circuit Judge. 1367. We must decide whether a local ordinance imposing [38] Statutes 64(1) certain licensing requirements and operating restric- 361k64(1) Most Cited Cases tions on adult entertainment establishments violates An entire statute need not be declared unconstitution- the First Amendment. al if constitutional portions can be severed. I [39] Statutes 64(1) A 361k64(1) Most Cited Cases In 1996, the Arizona legislature amended § 11-821 of the Arizona Revised Statutes, to authorize counties to [39] Statutes 188 enact zoning ordinances with respect to adult enter- 361k188 Most Cited Cases tainment establishments. See Ariz.Rev.Stat. § 11-821. Under Arizona law, the test for severability of a stat- Acting on its new authority, the Maricopa County ute's unconstitutional provisions requires ascertaining Board of Supervisors asked its Planning and Devel- legislative intent; the most reliable evidence of that opment Department to research and to prepare a draft intent is the language of the statute. of what would eventually become Ordinance P-10, at [40] Counties 55 issue in this case. 104k55 Most Cited Cases At the behest of the county board, the planning de- Unconstitutional portions of county's adult entertain- partment prepared a four-page report for board mem- ment ordinance, permitting disclosure of personal in- bers, addressing the negative effects associated with formation about erotic dancers and prohibiting spe- adult-oriented businesses. In addition to discussing cified sexual activity, were severable from remainder
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the Supreme Court's decisions in City of Renton v. county's handling of applications for *997 licenses Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, and permits. In addition, the ordinance contains nu- 89 L.Ed.2d 29 (1986), Young v. American Mini merous operating restrictions on adult-oriented busi- Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 nesses, certain of which are also at issue in this litiga- (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. tion. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), the re- port cited seventeen studies documenting the negat- FN1. Adult-oriented business means "adult ive secondary effects associated with adult-oriented arcades, adult bookstores or adult video establishments. Summarizing the findings of these stores, cabarets, adult live entertainment es- studies, the report concluded that adult-oriented busi- tablishments, adult motion picture theaters, nesses were associated with "unlawful and unhealthy adult theaters, [and] massage establishments activities" and generally lead to illicit sexual behavi- that offer adult service or nude model studi- or, crime, unsanitary conditions, and the spread of os." Ordinance § 2. Each of these terms are sexually-transmitted diseases if not properly regu- in turn defined under the ordinance. lated. Board members were provided with copies of The plaintiffs in this action are Dream Palace, a live studies from Phoenix and Los Angeles documenting adult nude dancing establishment in Maricopa such negative secondary effects, as well as a four- County, and certain of its managers and employees teen-page summary of eleven other studies. (collectively "Dream Palace"). [FN2] When Ordin- Public hearings were held with respect to the pro- ance P-10 became effective, Dream Palace and its posed ordinance on April 23, 1997. Two people managers and employees did not apply for a business spoke against the ordinance at those hearings, a local license or for work permits, as required by the ordin- bookstore owner and John Weston, the attorney for ance. Instead, on November 13, 1997, they filed suit the plaintiffs in this case. Others spoke in favor, in- in federal district court challenging the ordinance on cluding state senator David Peterson and state repres- First Amendment grounds, as well as certain state entatives Marilyn Jarrett and Karen Johnson. Most of law grounds. the testimony pro and con focused on the legality of FN2. Dream Palace is a "live nude entertain- the proposed ordinance and the need for regulation in ment establishment" within the meaning of light of the perceived secondary effects associated the Ordinance. See Ordinance § 2. with adult-oriented businesses. The county planning director, Ms. Herberg-Kusy, also addressed the board In 1998, apparently at the instigation of Maricopa at these hearings, urging that the studies provided the County, the Arizona legislature enacted Arizona Re- necessary empirical data to conclude that adult- vised Statute § 11-821(B). Section 11- 821(B) ex- oriented businesses have a negative secondary impact pressly provided Arizona counties with the authority on surrounding communities. The board voted unan- to license and to regulate new or existing adult- imously to adopt the ordinance, and it became effect- oriented business, and to impose work permit re- ive on May 27, 1997. quirements on nude dancers and business managers. [FN3] B Ordinance P-10 is a comprehensive scheme for the li- FN3. In pertinent part, § 11-821(B) censing and regulation of businesses which come provides: within its purview: that is, adult entertainment busi- [T]he county plan ... [m]ay provide for the nesses. See Ordinance § 2. [FN1] Businesses, man- regulation and use of business licenses, adult agers and employees that come within the ordinance's oriented business manager permits and adult sweep are each required to obtain a license or permit service provider permits in conjunction with prior to operating, or working at, an adult entertain- the establishment or operation of adult ori- ment business. Certain procedural safeguards, at is- ented businesses and facilities, including sue in this case, are in place with respect to the
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adult arcades, adult bookstores or video "remaining state law claims raise delicate issues in- stores, cabarets, theaters, massage establish- volving the interpretation and application of Arizona ments and nude model studios. law." Dream Palace timely appeals.
While the state was amending the relevant statute, the II county was in the process of amending Ordinance P- The Supreme Court has ruled that nude dancing of 10. The proposed amendments were in the nature of the type performed at Dream Palace is "expressive minor clarifications; the substance of the ordinance conduct" which falls "within the outer ambit of the remained unchanged. At a June 17, 1998 board meet- First Amendment's protection." City of Erie v. Pap's ing to discuss the amendments, a total of eight further A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 secondary effects studies were made available to L.Ed.2d 265 (2000) (plurality opinion). Therefore, board members. On September 2, 1998, the board un- the ordinance must be analyzed to ensure it does not animously voted to approve the amendments. See unduly impair the exercise of First Amendment Maricopa County, Az., Ordinance P-10 (Sept. 2, rights. The specific First Amendment tests that may 1998) (Attached as Appendix to this Opinion). apply, and the determination as to the proper level of scrutiny, depends for the most part on the nature of In the wake of the adopted amendments, Dream the provision that Dream Palace seeks to challenge. Palace filed an amended complaint in district court, renewing Dream Palace's frontal assault on several [1] Here, Dream Palace challenges several provisions provisions in the ordinance on First Amendment and in the ordinance as invalid prior restraints. Those pro- state law grounds. Dream Palace simultaneously filed visions will be upheld only if they provide for a eight separate motions for partial summary judgment. prompt decision during which the status quo is main- The county filed a single cross-motion for summary tained, and there is the opportunity for a prompt judi- judgment on all issues. On September 30, 1999, the cial decision. FW/PBS, Inc. v. City of Dallas, 493 district court granted summary judgment in favor of U.S. 215, 228, 110 S.Ct. 596, 107 L.Ed.2d 603 the county on all issues save two. Specifically, with (1990). Dream Palace also challenges several of the respect to the requirement that an adult entertainment ordinance's operating restrictions. We assess the con- business must obtain a license to operate, the district stitutionality of those provisions under the "second- court held that the procedural safeguards in place ary effects" test enunciated by the Supreme Court in were insufficient with respect to pre-existing busi- Renton, 475 U.S. at 47-54, 106 S.Ct. 925. nesses like Dream Palace, because there was no guar- antee that a pre-existing business could continue to III operate pending the outcome of an appeals process. Dream Palace first challenges the requirement that The district court also held that the requirement that adult entertainment businesses obtain a license prior nude and semi-nude dancers wear identification cards to conducting business in Maricopa County. was invalid under Renton. The county has not ap- A pealed from either of these two rulings. The district The district court in this case drew a distinction court abstained from addressing the state law claims between pre-existing businesses on the one hand, and of preemption and ultra vires. new businesses on the other. Specifically, with re- Dream Palace subsequently filed a motion to alter or spect to pre-existing businesses, it found that "there is to amend the judgment, and asked the district court to no guarantee in the ordinance that existing businesses explain its decision to abstain from addressing the or persons working as managers or adult service pro- state law claims. The district court denied the motion. viders will be able to continue operating beyond the In doing so, it explained that it did not address the 180 day period," [FN4] and for that reason, the li- state law claims because "the various motions for censing scheme was invalid. The district court found, summary *998 judgment have resolved all of however, that the remaining provisions were valid. Plaintiffs' federal constitutional claims," and that the Specifically, the district court found that "the County
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may regulate and license new businesses and does so government action by showing that it may inhibit the in this case in as expeditious a manner as possible First Amendment rights of parties not before the given administrative realities." The district court held court. See Young v. City of Simi Valley, 216 F.3d 807, that, with respect to new businesses, the fact that the 815 (9th Cir.2000); 4805 Convoy, Inc. v. City of San ordinance "does not provide for a deadline for judi- Diego, 183 F.3d 1108, 1111 (9th Cir.1999). The cial decisions" did not render the licensing scheme overbreadth doctrine functions as an exception to "the unconstitutional because "the County has no author- general prohibition on a litigant's raising another per- ity to require an absolute time period in which the son's legal rights," Allen v. Wright, 468 U.S. 737, state court process has to occur." 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984), and is based on the idea that "the very existence of some FN4. The 180 day period the district court broadly written laws has the potential to chill the ex- refers to is to be found in section 24, which pressive activity of others not before the court." For- states that pre-existing businesses "shall be syth County v. Nationalist Movement, 505 U.S. 123, in full compliance with this ordinance, in- 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). cluding receipt of any required license or However, the overbreadth doctrine "does not affect permit, within one hundred eighty days after the rigid constitutional requirement that plaintiffs the effective date" of the ordinance. must demonstrate an injury in fact to invoke a federal court's jurisdiction." 4805 Convoy, Inc., 183 F.3d at B 1112 (quoting Bordell v. General Elec. Co., 922 F.2d Before reaching the merits, we must consider the 1057, 1061 (2d Cir.1991)); see also Bigelow v. Vir- county's argument that Dream Palace, a previously ginia, 421 U.S. 809, 816-17, 95 S.Ct. 2222, 44 existing business, lacks standing to appeal the district L.Ed.2d 600 (1975) (to have overbreadth standing, court's decision that the ordinance's licensing require- "[t]here must be a claim of specific present objective ments can constitutionally be applied to new busi- harm or a threat of specific future harm.") (internal nesses. quotation marks omitted). Thus, Dream Palace must *999 1 still satisfy the injury-in-fact requirement to raise a [2][3] The doctrine of standing addresses the question challenge to the ordinance. whether "a party has a sufficient stake in an otherwise 2 justiciable controversy to obtain judicial resolution of [7] At the outset of these proceedings, we think there that controversy." Sierra Club v. Morton, 405 U.S. is no dispute that Dream Palace had the necessary 727, 731, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972). At standing to challenge the overall licensing require- an "irreducible minimum," Article III of the United ments. By its express terms, the ordinance applied to States Constitution requires a litigant invoking the both preexisting businesses and new businesses, and authority of a federal court to demonstrate: (1) "that Dream Palace's refusal to apply for the necessary per- he personally has suffered some actual or threatened mit therefore placed it in danger of sustaining a direct injury as a result of the putatively illegal conduct of injury; that is, prosecution for noncompliance with the defendant," (2) "that the injury fairly can be the ordinance. See City of Los Angeles v. Lyons, 461 traced to the challenged action," and (3) that the in- U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 jury is "likely to be redressed by a favorable de- (1983). Only when the district court ruled that the li- cision." Valley Forge Christian College v. Americans cense requirements were invalid with respect to one United for Separation of Church and State, 454 U.S. class of businesses, but valid with respect to another, 464, 472, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982) did a serious question with respect to Dream Palace's (internal quotation marks and citations omitted). standing arise. The issue is therefore more properly [4][5][6] Here, Dream Palace asserts an overbreadth characterized as one of mootness on appeal. Dream challenge to the business license requirements. Under Palace's challenge to the business license scheme will the overbreadth doctrine, a plaintiff may challenge be moot, and hence not justiciable, if intervening
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events have caused it completely to lose "its character been appealed. Since Dream Palace cannot be subject as a present, live controversy of the kind that must to the ordinance as it stands, it may at first be diffi- exist if [a court is] to avoid advisory opinions on ab- cult to see how it has a "present, live controversy," stract propositions of law." Hall v. Beals, 396 U.S. Hall, 396 U.S. at 48, 90 S.Ct. 200, sufficient to go 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969) (per forward with its claim that the ordinance is also in- curiam); see also Pap's A.M., 529 U.S. at 287, 120 valid with respect to new businesses. S.Ct. 1382 ("[A] case is moot when the issues presen- ted are no *1000 longer 'live' or the parties lack a leg- However, the county has conceded in its brief and at ally cognizable interest in the outcome." oral argument that rather than challenging the district (modification in original)). court's ruling with respect to pre-existing businesses like Dream Palace, it is in the process of amending [8][9][10] The issues of mootness and standing are those provisions so that the challenged restrictions closely related, see United States Parole Comm'n v. will apply to pre-existing businesses. At such time, Geraghty, 445 U.S. 388, 397, 100 S.Ct. 1202, 63 the provisions Dream Palace now seeks to challenge L.Ed.2d 479 (1980), though circumstances that would can and will apply to Dream Palace and its employ- not support standing as an initial matter may never- ees. It therefore appears that Dream Palace is indeed theless be sufficient to defeat a mootness challenge "immediately in danger of sustaining some direct in- on appeal. See Friends of the Earth, Inc. v. Laidlaw jury" as a result of the official conduct it seeks to Envtl. Servs., 528 U.S. 167, 189-92, 120 S.Ct. 693, challenge. Id. 145 L.Ed.2d 610 (2000); Jacobus v. Alaska, 338 F.3d 1095, 1103 (9th Cir.2003) ("The Supreme Court has In Erie, the owners of the plaintiff nude dancing club emphasized that the doctrine of mootness is more filed a motion to dismiss the case as moot, because flexible than other strands of justiciability doctrine."). the club had ceased to operate in Erie County after The question of mootness "focuses upon whether we the Supreme Court had granted certiorari. 529 U.S. at can still grant relief between the parties. If an event 287, 120 S.Ct. 1382. The Supreme Court held that occurs while a case is pending on appeal that makes "[s]imply closing [the club] is not sufficient to render it impossible for the court to grant any effectual relief th[e] case moot" because of the possibility that the whatever to a prevailing party, the appeal is moot and club owners "could again decide to operate a nude must be dismissed.... However, while a court may not dancing establishment in Erie," in which case, the be able to return the parties to the status quo ante ..., owners would once again be subject to the city ordin- an appeal is not moot if the court can fashion some ance. Id. Similarly, in Clark v. City of Lakewood, 259 form of meaningful relief...." In re Pattullo, 271 F.3d F.3d 996 (9th Cir.2001), we considered a situation 898, 901 (9th Cir.2001) (quoting United States v. where an owner's license to operate an adult cabaret Arkison, 34 F.3d 756, 759 (9th Cir.1994) had expired after the district court had rendered a de- (modifications in original) (quoting Church of Sci- cision in the city's favor, and the owner had not entology v. United States, 506 U.S. 9, 12, 113 S.Ct. sought renewal. Id. at 1011. We nonetheless held that 447, 121 L.Ed.2d 313 (1992))). We must examine the case was not moot *1001 because of the plaintiff's whether relief against the ordinance's provisions "stated intention ... to return to business." Id. at 1012. could meaningfully improve Dream Palace's position; Given the county's expressed intention to amend the if it could not, then Dream Palace has no continuing ordinance so as to have it apply to Dream Palace, the stake in the outcome sufficient to survive a mootness possibility of immediate injury to the plaintiff in this challenge. case is more likely to come to pass than either of the scenarios contemplated in Erie and Clark. Dream 3 Palace will soon be subject to the provisions it now [11] The problem for Dream Palace is obvious: it is a seeks to challenge, and consequently, there is a "live pre-existing business, and the district court has previ- controversy." Hall, 396 U.S. at 48, 90 S.Ct. 200. We ously ruled that the business license requirement can- are satisfied, therefore, that its overbreadth challenge not be applied to such businesses. That ruling has not to the business license requirement is not moot.
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C ceedings on the state does not apply to li- Turning to the merits, Dream Palace asserts that the censing schemes such as the one challenged procedural safeguards with respect to the county's de- here." Id. at 1008 (citing FW/PBS, 493 U.S. cision on a license application are insufficient to pro- at 228-30, 110 S.Ct. 596). tect First Amendment rights. 1 [12][13][14] A prior restraint exists when the enjoy- [15] First, Dream Palace claims that the ordinance is ment of protected expression is contingent upon the invalid because it places the burden of proof in the approval of government officials. Near v. Minnesota, administrative appeals process on the applicant. See 283 U.S. 697, 711-13, 51 S.Ct. 625, 75 L.Ed. 1357 Ordinance P-10 § 18 ("Respondent shall have the (1931). Since Ordinance P-10 requires all businesses burden of proving by a preponderance of the evid- which come within its purview to apply for and to ence that the denial ... was arbitrary or capricious and obtain a license before engaging in business, [FN5] an abuse of discretion."). The fact the burden is on the licensing scheme is quite obviously a prior re- the applicant during these administrative proceedings straint, and properly analyzed as such. Prior restraints is of no consequence, at least from the standpoint of are not unconstitutional per se, however. FW/PBS, the First Amendment. In FW/PBS, the Supreme Court 493 U.S. at 225, 110 S.Ct. 596. The Supreme Court rejected the argument that, in the event of judicial re- has said that to pass constitutional muster, a licensing view, the regulator must bear the burden of proof scheme that regulates adult entertainment businesses once in court. Id. at 230, 110 S.Ct. 596. The Court must contain two procedural safeguards: First, "the li- reasoned that under the ordinance, "the city does not censor must make the decision whether to issue the exercise discretion by passing judgment on the con- license within a specified and reasonable period dur- tent of any protected speech," but merely engages in ing which the status quo is maintained." Id. at 228, "a ministerial act that is not presumptively invalid." 110 S.Ct. 596. Second, "there must be the possibility *1002 Id. at 229, 110 S.Ct. 596. Furthermore, the ap- of prompt judicial review in the event that the license plicant has a great deal at stake when a license ap- is erroneously denied." Id. [FN6] plication is denied, and as such "there is every incent- ive for the applicant to pursue a license denial FN5. Section 5 provides that "a person or through court." Id. at 230, 110 S.Ct. 596. For these enterprise may not conduct an adult oriented reasons, the Court concluded that "the First Amend- business without first obtaining an adult ori- ment does not require that the city bear the burden of ented business license...." going to court to effect the denial of a license applic- ation or that it bear the burden of proof once in FN6. These two requirements were first set court." Id. forth by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, Precisely the same circumstances arise here. In decid- 13 L.Ed.2d 649 (1965). Freedman also held ing whether to issue a license, the licensor "does not that the government bore the burden of go- exercise discretion by passing judgment on the con- ing to court in order to justify the licensing tent of any protected speech." Id. at 229, 110 S.Ct. scheme. Id. at 59-60, 85 S.Ct. 734. Justice 596. Moreover, "[b]ecause the license is the key to O'Connor's three-judge plurality opinion in the applicant's obtaining and maintaining a business," FW/PBS dispensed with this third procedur- id. at 229-30, 110 S.Ct. 596, Dream Palace has an in- al safeguard in the context of adult business centive vigorously to pursue administrative review of licensing schemes. FW/PBS, 493 U.S. at an adverse decision. We fail to see why the First 229-30, 110 S.Ct. 596. In Baby Tam & Co., Amendment would require the county to bear the Inc. v. City of Las Vegas, 247 F.3d 1003 (9th burden in administrative review proceedings, but not Cir.2001) ("Baby Tam III "), we followed in court. Requiring the applicant to bear the burden of the plurality opinion in FW/PBS and held proof in administrative proceedings is, therefore, val- that "placing the burden of instituting pro- id under the First Amendment.
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2 omitted). Second, Dream Palace argues that the ordinance fails to comply with the second of the FW/PBS require- [17] Our task, then, is to determine whether Ordin- ments: that there be "the possibility of prompt judi- ance P-10, read in its proper context within Arizona cial review." FW/PBS, 493 U.S. at 228, 110 S.Ct. law, provides for a sufficiently prompt judicial de- 596. termination *1003 of the legitimacy of a license deni- al. City of Littleton provides the starting point for that a determination. At issue in that case was a licensing Dream Palace originally rested this argument on our ordinance enacted by the city of Littleton, Colorado. holding in Baby Tam & Co., Inc. v. City of Las Ve- Like Ordinance P-10, the Littleton ordinance required gas, 154 F.3d 1097 (9th Cir.1998) ("Baby Tam I "), adult businesses to obtain a license in order to oper- that an adult business could not be subjected to a con- ate; also like Ordinance P-10, it set out a list of ob- tent-based licensing regime where "[t]here is no pro- jective circumstances that, if present, required the vision that a judicial hearing must be had or a de- city to deny the license application. City of Littleton, cision must be rendered within a prescribed period of 124 S.Ct. at 2222 (citing Littleton City Code §§ time." Id. at 1101. Baby Tam I, however, is no longer 3-14-2, 3-14-3, 3-14-5, 3-14-7, 3-14-8). The Littleton good law after the Supreme Court's decision in City ordinance provided that the city's final licensing de- of Littleton v. Z.J. Gifts D-4, L.L.C., ---U.S. ----, 124 cision could be "appealed to the [state] district court S.Ct. 2219, 159 L.Ed.2d 84 (2004). That case, de- pursuant to Colorado rules of civil procedure." Id. cided after the parties' initial briefing in this case, (citing Littleton City Code § 3-14-8(B)(3)). now provides the framework for analyzing the judi- cial-review provision of Ordinance P-10. [FN7] The Supreme Court held that by providing for judi- cial review through the ordinary process of Colorado FN7. The parties have filed supplemental state courts, the ordinance "offer[ed] adequate assur- briefs on the effect of City of Littleton. ance, not only that access to the courts can be Dream Palace, in its brief, acknowledges promptly obtained, but also that a judicial decision that its original argument relying on Baby will be promptly forthcoming." Id. at 2224. In so Tam I is now without merit. holding, the Court explicitly accepted the argument that "the First Amendment does not require special [16] The Supreme Court's opinion in City of Littleton 'adult business' judicial review rules." Id. Rather, the makes clear that the FW/PBS requirement of "prompt Court held, the regular judicial process of the Color- judicial review" must be read "as encompassing a ado state courts was sufficient "as long as the courts prompt judicial decision." Id. at 2224. In other words, remain sensitive to the need to prevent First Amend- the First Amendment requires that an adult business ment harms and administer those procedures accord- subject to a licensing scheme not only have prompt ingly." Id. access to the courts in the event the license is denied, but also receive a prompt decision from the courts on In effect, the Court in City of Littleton established a the legitimacy of such a denial. This follows, the presumption that state courts function quickly Court explains, from two principles: first, that "the li- enough, and with enough solicitude for the First cense for a First Amendment-protected business must Amendment rights of license applicants, to avoid the be issued within a reasonable period of time, because unconstitutional suppression of speech that arises undue delay results in the unconstitutional suppres- from undue delay in judicial review. [FN8] The Court sion of protected speech," FW/PBS, 493 U.S. at 228, provided several reasons why ordinary state-court 110 S.Ct. 596; and second, that "[a] delay in issuing a procedures suffice. First, state courts have tools at judicial decision, no less than a delay in obtaining ac- their disposal to expedite proceedings when neces- cess to a court, can prevent a license from being is- sary. Id. at 2224-25. Second, there is no reason to sued within a reasonable period of time." City of doubt that state judges are willing to use those pro- Littleton, 124 S.Ct. at 2224 (internal quotation marks cedures when necessary to keep justice delayed from
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becoming justice denied; moreover, if some state sures an applicant maximum judicial flexibility by re- court should fail in its duties, "federal remedies quiring the county to "consent to expedited hearing would provide an additional safety valve." Id. at 2225 and disposition" in state court. (citing 42 U.S.C. § 1983). Third, the potential harm to First Amendment values is attenuated when the li- Second, there is no reason to doubt--and Dream censing decision depends on reasonably objective cri- Palace has not disputed--that Arizona courts will be teria, both because the use of objective criteria is "un- solicitous of the First Amendment rights of license likely in practice to suppress totally the presence" of applicants. Moreover, as the Supreme Court noted, a certain form of protected expression, and because federal remedies under 42 U.S.C. § 1983 are avail- the use of objective criteria typically lends itself to able should county and state procedures fail to suf- "simple, hence expeditious" judicial review. Id. fice. Fourth and finally, local governments often lack the Third, as in City of Littleton, the licensing decision legal authority to impose deadlines on state courts; under Ordinance P-10 depends on a set of reasonably thus, it is reasonable for them to depend on state-law objective factors. Section 10(d) provides that the dir- procedural safeguards against undue delay. Id. ector of the county planning department "shall grant FN8. This presumption applies to facial the license" unless any of several conditions is met, challenges to licensing ordinances. City of and these conditions (for example, that the applicant Littleton, 124 S.Ct. at 2226. License applic- is not underage and has complied with applicable ants may still bring an as-applied challenge zoning ordinances) are reasonably objective. State to argue that a state is failing to provide ad- courts should therefore have little difficulty in ensur- equate judicial review. ing that county officials do not wrongfully deny li- cense applications that meet the ordinance's require- City of Littleton's presumption that regular state-court ments. review is adequate applies equally to this facial chal- lenge to Ordinance P-10. Each of the rationales for [18] Fourth, Maricopa County has no legal authority that presumption set out by the Court in City of to impose deadlines on Arizona state courts. This Littleton applies here. First, the Arizona courts have fact, of course, would not ameliorate an otherwise procedural tools available should it be necessary to unconstitutional prior restraint. When the First expedite the review of a license denial. See Ariz. R. Amendment requires certain safeguards before a sys- Civ. P. 6(d) ("A judge of the superior court ... may is- tem of prior restraint may be enforced, a local gov- sue an order requiring a party to show cause why the ernment cannot evade that requirement by pointing to party applying for the order should not have the relief its lack of legal authority to ensure such safeguards therein requested, and may make the order returnable exist. Nevertheless, nothing prevents a county from at such time as the judge designates."); Ariz. R.P. relying on state law procedures to ensure that First Spec. Act. 4(c) ("[A] special action may be instituted Amendment interests are adequately protected. City with or *1004 without an application for an order to of Littleton, 124 S.Ct. at 2225; cf. Graff v. City of show cause why the requested relief should not be Chicago, 9 F.3d 1309, 1324 (7th Cir.1993) (en banc) granted. ... If a show cause procedure is used, the (holding that it was constitutionally sufficient that re- court shall set a speedy return date."); Ariz. R.P. view of licensing decisions was available by Illinois' Spec. Act. 4(c) (state bar committee's note) ("Special common-law writ of certiorari). As long as those actions which require urgent disposition may be ex- state procedures are themselves constitutionally ad- pedited under the show cause procedure established equate, the county will have satisfied the First by the Rule, with complete flexibility in the Court to Amendment's requirements. control timing."); see also Green v. Superior Court, In short, the ordinance in this case is similar in every 132 Ariz. 468, 470, 647 P.2d 166 (1982) ("[B]y vir- relevant aspect to the ordinance upheld by the Su- tue of" Rule 4(c), "matters ... may be determined as preme Court in City of Littleton. Moreover, Arizona's expeditiously as is necessary"). The ordinance en-
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rules of procedure "provide for a flexible system of cumstances of the case overcome our presumption review in which judges can reach a decision promptly against hearing new arguments. In this case, a de- in the ordinary case, while using their judicial power cision of this Court bearing directly on the issue of to prevent significant harm to First Amendment in- judicial review of adult-business licensing terests where circumstances require," City of decisions--Baby Tam I-- was displaced by a Supreme Littleton, 124 S.Ct. at 2226. Such rules of procedure Court decision after the proceedings in the district satisfy the First Amendment. court were complete. Thus, Dream Palace made its decision to rely below on Baby Tam I within a very b different legal landscape from the one that now ob- [19] In its supplemental briefing, Dream Palace ad- tains. For that reason, we exercise our discretion to vances two additional arguments for its claim that the consider the new arguments advanced by Dream ordinance does not provide constitutionally sufficient Palace. judicial review. First, it argues that under the "special action" procedure authorized by the ordinance, any i review is purely at the court's discretion and hence [20] First, Dream Palace argues that the "special ac- not sufficiently guaranteed. Second, it argues that re- tion" review provided for by the ordinance is inad- view in an Arizona special action is under an abuse- equate because, under Arizona law, the exercise of of-discretion standard, and that only de novo review jurisdiction in a special action is purely at the court's is constitutionally adequate. discretion. Thus, it contends, there is no guarantee that a court will hear the merits of a denied license *1005 Dream Palace did not raise these arguments applicant's claim. before the district court. Ordinarily, we decline to consider arguments raised for the first time on appeal. The Supreme Court's holding that a "prompt judicial Janes v. Wal-Mart Stores, Inc., 279 F.3d 883, 888 n. determination must be available," FW/PBS, 493 U.S. 4 (9th Cir.2002); United States v. Patrin, 575 F.2d at 239, 110 S.Ct. 596, would be drained of its force if 708, 712 (9th Cir.1978). This rule serves to ensure it did not mean that a would-be licensee whose ap- that legal arguments are considered with the benefit plication is denied must have access to a court that is of a fully developed factual record, offers appellate required to review the license denial on its merits. courts the benefit of the district court's prior analysis, We must therefore determine whether Arizona law so and prevents parties from sandbagging their oppon- provides. ents with new arguments on appeal. We have, however, laid out several narrow exceptions to the Ordinance P-10 provides that a final denial of a li- rule--among them, the case in which "the issue is cense application may be appealed to the Superior purely one of law, does not affect or rely upon the Court (the state trial court) "by special action or other factual record developed by the parties, and will not available procedure." As the Supreme Court emphas- prejudice the party against whom it is raised." Janes, ized in City of Littleton, nothing requires a state or 279 F.3d at 888 n. 4; see also Patrin, 575 F.2d at 712. local government to write the details of judicial re- That exception applies here. Dream Palace's new ar- view procedures into the licensing ordinance. See 124 guments are based entirely in law and do not rely on S.Ct. at 2226. Thus, if there is any procedural route the factual record. Maricopa County will not be pre- by which an applicant may obtain full review on the judiced by Dream Palace's failure to advance the ar- merits, we must reject Dream Palace's argument. guments below; it has had, and has taken advantage The parties vigorously dispute whether the "special of, a full opportunity to brief its response to the new action" proceeding is constitutionally sufficient. The arguments. special action is a proceeding under Arizona law, cre- Even when a case falls into one of the exceptions to ated by rule in 1970, that takes the place of the old the rule against considering new arguments on ap- common law writs of certiorari, mandamus, and pro- peal, we must still decide whether the particular cir- hibition. A special action may be instituted in Superi-
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or Court or in the appellate courts, see Ariz. R.P. cannot escape its constitutional obligations by the Spec. Act. 4(a), but Ordinance P-10 authorizes appeal simple device of denying jurisdiction in such cases to the Superior Court and so it is that procedure that to Courts otherwise competent." concerns us here. 125 Ariz. at 92 n. 4, 607 P.2d at 969 n. 4 (quoting Kenney v. Supreme Lodge of the World, Order of When a plaintiff seeks special action review in the Moose, 252 U.S. 411, 415, 40 S.Ct. 371, 64 L.Ed. Superior Court, "the judge *1006 must first exercise 638 (1920)). The court's language here strongly sug- his discretion and decide whether to consider the case gests that it is not within the Superior Court's discre- on its merits." Bilagody v. Thorneycroft, 125 Ariz. tion to refuse to consider the merits of that claim un- 88, 92, 607 P.2d 965, 969 (1979). Were this discre- less some other avenue is open for the petitioner's tion unbounded, the special action would, of course, challenge. [FN9] provide no guarantee of judicial review on the merits. If, on the other hand, the judge's "discretion" does not FN9. If, for example, as we suggest below, include the ability to dismiss a petition where it is the an ordinary lawsuit or declaratory action only route by which the petitioner can bring a consti- would lie to contest a license denial, then a tutional challenge, then the mere use of the term "dis- Superior Court might have discretion to dis- cretion" will not prevent the review from being con- miss a special action on that ground--but stitutionally sufficient. Arizona law in this area is not then (by hypothesis) the plaintiff would have entirely pellucid. The Arizona Supreme Court has constitutionally adequate judicial review noted that "[t]he decision to accept jurisdiction of a through one of those procedural routes. special action petition is highly discretionary with the court in which the petition is filed." Gockley v. Ariz. Arguing otherwise, Dream Palace points us to lan- Dept. of Corrections, 151 Ariz. 74, 75, 725 P.2d guage in State ex rel. Dean v. City Court of City of 1108, 1109 (1986). This statement seems, on its face, Tucson, 123 Ariz. 189, 598 P.2d 1008 (1979), where to suggest that a court could dismiss a petition for the Court of Appeals noted that "[t]he denial of spe- reasons unrelated to the constitutional merits of the cial action relief is a discretionary decision which claim, leaving a petitioner without remedy. The Court will be upheld for any valid reason disclosed by the of Appeals' decision in Bilagody, however, suggests record." 123 Ariz. at 192, 598 P.2d at 1011. We have that a Superior Court would be abusing its discretion- no reason to think, however, that the Arizona courts -and hence subject to reversal--if it were the only would find any "reason" to be "valid" that would available venue for, and yet refused to hear, a claim deny a license applicant the review on the merits that that a license denial violated the First Amendment. In the Constitution requires. Cf. City of Littleton, 124 Bilagody, the Arizona Court of Appeals considered a S.Ct. at 2225 (finding "no reason to doubt" that Col- Superior Court judge's decision to decline jurisdiction orado state judges would exercise their powers so as over a special action in which the plaintiff chal- to avoid First Amendment harms). Dean itself did not lenged, on due process grounds, the state's suspension deal with a constitutional claim; it merely upheld a of his driver's license. See 125 Ariz. at 89-92, 607 Superior Court's decision not to review the City of P.2d at 966-69. The court affirmed the dismissal "on Tucson's challenge to a municipal *1007 court's erro- the basis that the appellant had available an adequate neous acquittal of a woman charged with a traffic vi- remedy by appeal," 125 Ariz. at 92, 607 P.2d at 969, olation, because double jeopardy principles would but added: bar any further proceedings against her even if the Were we to conclude, however, that the due pro- City's claim were successful. At most, then, Dean cess issue could not subsequently be raised, it held that denial of review in a special action proceed- would be necessary to reconsider the scope of the ing is appropriate where a holding for the plaintiff trial court's discretion to refuse to decide the issue would have no real effect. Thus, our reading of Ari- in a special action. As Justice Holmes once ob- zona law inclines us to the view that the Superior served in another context: "(I)t is plain that a State Court does not have the kind of "discretion" over spe- cial action review that would render the process con-
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stitutionally insufficient. Cf. Graff v. City of Chicago, declaratory action--are open to an applicant whose li- 9 F.3d 1309, 1324-25 (7th Cir.1993) (en banc). cense is denied, we need not conclusively resolve the parties' debate over the sufficiency of the special ac- In any event, we need not delve deeper into the tion proceeding. vagaries of Arizona civil procedure law, because the special action is not the only procedure available to ii contest a license denial. Ordinance P-10 authorizes Dream Palace also argues that review in an Arizona appeal from a denial not only by special action, but special action is inadequate because it is under a de- also by any "other available procedure." [FN10] That ferential abuse-of-discretion standard. We disagree would include, for example, a regular lawsuit seeking with that characterization of Arizona law. A court in an injunction against the enforcement of the ordin- a special action considers not only whether the de- ance after a contested license denial. It would also in- fendant has abused his discretion, but also "[w]hether clude a suit under Arizona's declaratory judgment the defendant has failed ... to perform a duty required statute, A.R.S. § 12-1831 et seq., which provides that by law as to which he has no discretion." [FN11] Ar- iz. Rules of Procedure for Special Actions 3(a). Or- FN10. The fact that a denied applicant can dinance P-10 imposes a duty *1008 on the county seek review other than through a discretion- planning director to issue a license unless certain dis- ary writ distinguishes this case from Deja qualifying conditions obtain; it gives the director no Vu of Nashville, Inc. v. Metropolitan Gov- discretion to deny a qualified application. A review- ernment of Nashville & Davidson County, ing court will thus have no reason to defer to the dir- Tenn., 274 F.3d 377 (6th Cir.2001). In Deja ector's decision. Vu, the Sixth Circuit held that a licensing or- dinance that required an applicant to seek FN11. Special action review also extends to judicial review, if at all, via a discretionary the questions (1) "[w]hether the defendant writ unconstitutionally failed to guarantee a has failed to exercise discretion which he final judicial adjudication on the merits. Id. has a duty to exercise"; (2) "[w]hether the at 402-03. defendant has proceeded or is threatening to proceed without or in excess of jurisdiction [a]ny person ... whose rights, status or other legal or legal authority"; and (3) "[w]hether a de- relations are affected by a ... municipal ordinance termination was arbitrary and capricious or ... may have determined any question of construc- an abuse of discretion." Ariz. R.P. Spec. tion or validity arising under the ... ordinance ... Act. 3. and obtain a declaration of rights, status or other legal relations thereunder. Dream Palace, however, argues that a special action A.R.S. § 12-1832. Dream Palace argues that this lan- court will defer to the county's determination of guage authorizes a declaratory action only to determ- whether the facts establish a disqualifying condition. ine the constitutionality or meaning of an ordinance, Again, we do not think this contention accurately re- not to contest the denial of a license application. But flects Arizona law. It is true that the Arizona Court of the statute permits a plaintiff to "obtain a declaration Appeals has held, in a case not involving the First of rights" under an ordinance, and Ordinance P-10 Amendment, that a court hearing a special action gives a qualified applicant the right to a license. See challenge to an administrative decision "may not Ordinance P-10, § 10(d) ("The Director shall grant weigh the evidence on which the decision was the license ... to an applicant who has completed all based." Ariz. Dep't of Public Safety v. Dowd, 117 Ar- requirements for application, unless the Director iz. 423, 426, 573 P.2d 497, 500 (Ariz.Ct.App.1977). finds any of the following conditions ...." (emphasis But the Arizona Supreme Court has held that "appel- added)). We see no reason why a declaratory action late courts must engage in independent review of would not lie under these circumstances. Because 'constitutional facts' in order to safeguard first these procedural routes--a suit for an injunction and a amendment protections." Dombey v. Phoenix News-
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papers, Inc., 150 Ariz. 476, 482, 724 P.2d 562, 568 ance of business licenses--the requirement of a (1986) (citing Bose Corp. v. Consumers Union of the speedy decision, and the provisions for administrative United States, Inc., 466 U.S. 485, 512, 104 S.Ct. appeals and judicial review--apply equally to applica- 1949, 80 L.Ed.2d 502 (1984)). We have no reason to tions for work permits. Permit applicants are think that Arizona courts will not assiduously carry provided with an additional safeguard: upon receipt out their duty to ensure that meaningful judicial re- of a properly filed application, the county is required view is not evaded through biased factfinding. to issue a temporary permit to the applicant, see id. § 10(b), and in the event of an adverse decision on the Finally, as discussed above, a special action is not the application, the temporary permit remains in place only judicial procedure available to a denied license until the exhaustion of the administrative and judicial applicant, who may also obtain review through a suit review of that decision. See id. §§ 18, 19. for an injunction or declaratory relief. Neither of those procedures calls for any heightened deference FN12. An adult-oriented business manager on the part of the state court. is "a person on the premises of an adult ori- ented business who is authorized to exercise c overall operational control of the business." In light of City of Littleton, and having rejected both See Ordinance P-10 § 2. of Dream Palace's new arguments for its unconstitu- tionality, we are satisfied that Ordinance P-10 FN13. An adult service provider is "any per- provides the opportunity for both access to judicial son who provides an adult service." Id. An review and a prompt judicial decision, as the First adult service is "dancing, serving food or Amendment requires. Of course, if some undis- beverages, modeling, posing, wrestling, covered quirk of state procedure were to prevent an singing, reading, talking, listening or other applicant from receiving meaningful judicial review, performances or activities conducted for any a challenge to the ordinance as applied would lie in consideration in an adult oriented business federal court. See City of Littleton, 124 S.Ct. at 2225 by a person who is nude or seminude during (citing 42 U.S.C. § 1983); see also id. at 2228 all or part of the time that the person is (Souter, J., concurring in part and in the judgment) providing the service." Id. ("If there is evidence of foot-dragging, immediate ju- dicial intervention will be required, and judicial over- B sight or review at any stage of the proceedings must 1 be expeditious."). [21] First, Dream Palace renews its argument that placing the burden of proof on managers and dancers IV in the administrative proceedings violates their First Dream Palace also contests the adequacy of the pro- Amendment rights. For the reasons we previously cedural safeguards in the ordinance to sustain the stated, we reject this argument. See supra section validity of the prior restraints involved in the man- III.C.1. Because the county "does not exercise discre- ager and dancer work permit requirements. tion by passing judgment on the content of any pro- tected speech," FW/PBS, 493 U.S. at 229, 110 S.Ct. A 596, and because permit applicants have every in- Sections 7 and 8 of the ordinance provide that adult- centive vigorously to pursue an administrative rem- oriented business managers [FN12] and adult service edy in the event of an adverse decision on an applica- providers [FN13] may *1009 not work in an adult en- tion, requiring permit applicants to bear the burden of tertainment establishment unless they first secure per- proof is valid under the First Amendment. mits. Ordinance § 7, 8. Application for said permits "shall be made in the same manner as application for 2 an adult business license...." Id. The upshot is that all [22] Second, Dream Palace argues that requiring of the procedural safeguards with respect to the issu- managers and dancers to exhaust their administrative
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remedies prior to seeking judicial review constitutes a ing for a work permit, pursuant to which permit ap- prior restraint. We reject this argument: we read noth- plicants are required to submit information regarding ing in the Supreme Court's decision in FW/PBS that their full true names, including "aliases or stage signals disapproval with the common requirement names" previously used, as well their current residen- that an applicant exhaust administrative remedies pri- tial address and telephone numbers. Section 9 in turn or to seeking judicial review. We reiterate that the provides that any information a permit applicant sub- critical issues with respect to the applicant's First mits to the county "shall be maintained in confidence Amendment rights are "a specified and reasonable ... subject only to the public record laws of the State period during which the status quo is maintained," of Arizona." Dream Palace's argument proceeds in and the "possibility of prompt judicial review." Id. at two steps: First, it argues that requiring such disclos- 228, 110 S.Ct. 596. ure by itself is invalid under the First Amendment. Second, and in the alternative, it asks for injunctive Requiring administrative exhaustion implicates relief against disclosure of said information to the neither of these two constitutional prerequisites. The public. We take each step in turn. ordinance guarantees a "specified and reasonable time" within which an administrative decision must A be made, and the applicant, temporary permit in [24] Dream Palace's assertion that requiring disclos- hand, may continue to work pending the outcome of ure of information regarding names, addresses, and administrative and judicial review. See Ordinance P- telephone numbers to the county violates the First 10 § 10(b), 18, 19. FW/PBS's requirements are there- Amendment is essentially foreclosed by our decision fore satisfied. In 4805 Convoy, we held that "[o]nce in Kev, Inc. v. Kitsap County, 793 F.2d 1053 (9th administrative remedies have been exhausted, a party Cir.1986). In Kev, we considered a challenge to a city whose license has been suspended or revoked may ordinance requiring nude dancers applying for a work seek judicial review." 183 F.3d at 1114 (emphasis ad- permit to provide to the city their name, phone num- ded). We make explicit now what was implicit in our ber, birth date, and aliases, past and present. Id. at decision in 4805 Convoy: requiring applicants to ex- 1059. We found that requiring disclosure of such in- haust administrative remedies prior to seeking judi- formation would not "discourage ... a prospective cial review does not violate the First Amendment, so dancer from performing. None of the information re- long as an administrative decision is rendered within quired by the County unreasonably diminishes the in- a specified, reasonable time, "during which time the clination to seek a license." Id. Because the required status quo is maintained." FW/PBS, 493 U.S. at 228, disclosure did not "inhibit[ ] the ability or the inclina- 110 S.Ct. 596. tion to engage in the protected expression," it was a valid licensing requirement. Id. at 1060. The required 3 disclosures under the ordinance at issue in this case, [23] Finally, Dream Palace's argument that placing and the city ordinance at issue in Kev, are indistin- the burden of seeking judicial review on managers guishable, and Kev therefore controls. [FN14] and dancers constitutes a prior restraint is foreclosed by our decision in Baby Tam III. See infra n. 6. In FN14. We note that several other courts Baby Tam III, we held that "placing the burden of in- have struck down remarkably similar provi- stituting proceedings on the state does not apply to li- sions to the one at issue in Kev and at issue censing *1010 schemes such as the one challenged in this case. See, e.g., LLEH, Inc. v. Wichita here." 247 F.3d at 1008. County, 289 F.3d 358, 370 (5th Cir.2002) (disclosure of "current residential address V and telephone number" was not narrowly Dream Palace's next challenge is to the disclosure re- tailored); Schultz v. City of Cumberland, 228 quirements with respect to manager and employee F.3d 831, 852 (7th Cir.2000) (invalidating work permit applications. Section 6 of the ordinance provision requiring disclosure of residential specifies the process applicants must follow in apply- address and other information).
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B number. Under Arizona law, that information is pre- [25][26] Dream Palace urges in the alternative that, sumptively available to anybody who pleases to ask even if we find the required disclosures to the County for it, and the county, though it may refuse to provide valid, we should grant injunctive relief to prevent the such information to the public, has the burden in sub- county from disclosing that information to the public. sequent proceedings of overcoming the statutory pre- The requirements for the issuance of a permanent in- sumption in favor of disclosure. The "confidentiality" junction are (1) the likelihood of substantial and im- provision included in the ordinance is essentially a mediate irreparable injury; and (2) the inadequacy of nullity, because that provision is made "subject ... to remedies at law. G.C. & K.B. Investments, Inc. v. the public record laws of the State of Arizona." Or- Wilson, 326 F.3d 1096, 1107 (9th Cir.2003). The dis- dinance P-10 § 6. The exception therefore swallows trict court's refusal to grant a permanent injunction is the rule. reviewed for an abuse of discretion. Id. The Sixth Circuit confronted a similar problem in [27] The potential First Amendment problem here Deja Vu of Nashville, Inc. v. The Metropolitan Gov. arises from the interplay between county and state of Nashville & Davidson County, TN., 274 F.3d 377 law. While Section 9 of the ordinance provides that (6th Cir.2001). The Nashville ordinance at issue in "information provided by an applicant in connection that case required permit applicants to divulge certain with the applicant for a license or permit under this personal information about themselves, including ordinance shall be maintained in confidence by the their current and former residential addresses. Id. at Director," that confidentiality protection is "subject ... 393. That information was presumptively available to to the public record laws of the State of Arizona." the public pursuant to the Tennessee Open Records Arizona law in turn provides that "[p]ublic records Act. See id. at 394. The court found there was "signi- and other matters in *1011 the custody of any officer ficant evidence that the requirement that applicants shall be open to inspection by any person at all times submit their names and past and current addresses to during office hours." Az.Rev.Stat. § 39-121 a public forum poses serious risks to their personal (emphasis added). The county does not dispute that security." Id. at 394. The court concluded that "per- applicant information provided to the county is a mit applicants' names and current and past residential "public record" within the meaning of this provision, addresses constitute[s] protected private information" and that those records are "presumed open to the pub- and therefore it was "exempted from Tennessee's lic for inspection as public records." Carlson v. Pima Open Records Act." Id. at 395. County, 141 Ariz. 487, 490, 687 P.2d 1242 (1984). The public right of inspection may be overcome in In N.W. Enterprises, Inc. v. City of Houston, 352 F.3d the interest of "confidentiality, privacy, or the best in- 162 (5th Cir.2003), the Fifth Circuit reasoned simil- terests of the state." Id. The State, however, "has the arly in reversing a Texas district court's injunction burden of overcoming the legal presumption favoring against a Houston ordinance that required employees disclosure." Scottsdale Unified School District No. 48 and managers of adult entertainment businesses to di- of Maricopa County v. KPNX Broadcasting Co., 191 vulge information regarding phone numbers and ad- Ariz. 297, 300, 955 P.2d 534 (1998) (quoting Cox Az. dresses to the city when applying for a permit. Id. at Pubs., Inc. v. Collins, 175 Ariz. 11, 14, 852 P.2d 195. The court held that state law already rendered 1194 (1993)). the information confidential and unavailable to the public; thus, it reasoned, requiring applicants to sup- The potentially dangerous consequences that the in- ply the information did not infringe their First terplay of these rules poses to permit applicants is ob- Amendment rights. Id. The Fifth Circuit panel there- vious. Should an erotic dancer, say, wish to apply for fore reversed the Texas district court's injunction. It a work permit, as required by the ordinance, he or she did not disagree that where there is no guarantee of must provide information regarding true name, in- confidentiality, "concerns about public disclosure ... cluding aliases or other names used in the past five are not inconsequential." N.W. Enters. v. City of Hou- years, as well as current home address and telephone ston, 27 F.Supp.2d 754, 842 (S.D.Tex.1998), rev'd in
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part, 352 F.3d at 198. As the district court in N.W. will decline to do so, and Dream Palace has intro- Enterprises reasoned: duced affidavit testimony to that effect. Adult entertainers may anonymously (or through stage names) put their bodies *1012 on display in Because the interplay of county and state law on this front of strangers, but these actions do not imply a point "inhibits the ability or the inclination to engage willingness to publicize the entertainers' personal in ... protected expression," Kev, 793 F.2d at 1060 information through which customers or other (citing Thomas v. Collins, 323 U.S. 516, 65 S.Ct. private persons may trace the entertainers to their 315, 89 L.Ed. 430 (1945)), we must conclude that the homes or otherwise invade their privacy without district court abused its discretion in refusing to en- permission. The fact that an entertainer is willing to join the county from disclosing to members of the dance publicly or a manager is willing to be em- public information provided to it from permit applic- ployed in a sexually oriented business that deals ants. Upon remand, the district court shall grant an with the public, or the fact that a determined har- appropriate injunction in accordance with this opin- asser or stalker might conceivably follow an enter- ion. tainer home after she leaves work, does not mean VI that adult entertainers and managers have voluntar- A ily sacrificed all privacy rights and need for safety We turn now to Dream Palace's challenges to certain protections. operating restrictions contained in the ordinance, the Id. at 842-43. first of which is to the prohibition on the provision of In Clark, we ourselves recognized the potential adult services between the hours of 1:00 a.m. and danger from public disclosure of information 8:00 a.m. on Monday through Saturday or between provided to the government in the course of applying the hours of 1:00 a.m. and 12:00 noon on Sunday. for a work permit posed for nude dancers, albeit in See Ordinance P-10 § 13(f). Our consideration of the course of deciding whether or not an owner-op- Dream Palace's challenge is largely controlled by our erator of a nude dancing club had overbreadth stand- recent decision in Fair Public Policy v. Maricopa ing to raise the rights of his managers and employees. County, 336 F.3d 1153 (9th Cir.2003). In that case, See Clark, 259 F.3d at 1010. We recognized in that we joined six other circuits [FN15] in holding that case the possibility "that cabaret patrons could obtain *1013 hours of operation restrictions on adult enter- such personal information and harass the entertainers tainment businesses were constitutional under the at their homes, or worse." Id. at 1010. Because of the secondary effects test so long as the "predominate potential danger, we concluded that "there is a risk concerns" motivating the ordinance were "the sec- cabaret employees will engage in self-censorship and ondary effects" of adult speech. See id. at 1160. Of avoid participating in protected activity ...." Id. course, that we have established the general proposi- tion that hours of operation restrictions may pass [28] We agree with this analysis. The First Amend- muster under the First Amendment does not relieve ment does not permit the county to put employees of us of our duty to put the county to its proof in this adult entertainment establishments to the choice of case. Compare DiMa Corp., 185 F.3d at 826 either applying for a permit to engage in protected (Seventh Circuit holds town ordinance regulating expression in circumstances where they expose them- hours of operation valid under Renton ), with Schultz, selves to "unwelcome harassment from aggressive 228 F.3d at 846 (Seventh Circuit evaluates anew suitors and overzealous opponents" of such activity, whether city has met its evidentiary burden under N.W. Enters., 27 F.Supp.2d at 842, or of choosing not Renton ). to engage in such activity out of concern for their personal safety. The chilling effect on those wishing FN15. See DiMa Corp. v. Town of Hallie, to engage in First Amendment activity is obvious. 185 F.3d 823 (7th Cir.1999); Lady J. Linger- Given the choice with which they are faced, we think ie, Inc. v. City of Jacksonville, 176 F.3d it likely that those willing to engage in such activity 1358 (11th Cir.1998); Richland Bookmart,
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Inc. v. Nichols, 137 F.3d 435 (6th Cir.1998); to a complete ban on protected expressive activity. Nat'l Amusements, Inc. v. Town of Dedham, Renton, 475 U.S. at 46, 106 S.Ct. 925; Alameda 43 F.3d 731 (1st Cir.1995); Mitchell v. Books, 535 U.S. at 434, 122 S.Ct. 1728 (plurality Comm'n on Adult Enter. Est. of the State of opinion); Fair Public Policy, 336 F.3d at 1164. Sec- Delaware, 10 F.3d 123 (3d Cir.1993); Star tion 13(f) is obviously not a complete ban, prohibit- Satellite, Inc. v. City of Biloxi, 779 F.2d ing as it does the provision of adult services during 1074 (5th Cir.1986). certain nighttime hours and until noon on Sundays. "The ordinance is therefore properly analyzed as a The familiar three-part analytical framework estab- time, place, and manner regulation." Renton, 475 lished in Renton applies. [FN16] First, we must de- U.S. at 46, 106 S.Ct. 925. termine whether the regulation is a complete ban on protected expression. Renton, 475 U.S. at 46, 106 2 S.Ct. 925. Second, we must determine whether the [29] Second, we must determine whether section county's purpose in enacting the provision is the 13(f) is designed to combat the secondary effects of amelioration of secondary effects. Id. at 47. If so, it is adult entertainment establishments on the surround- subject to intermediate scrutiny, and we must ask ing community, "namely at crime rates, property val- whether the provision is designed to serve a substan- ues, and the quality of the city's neighborhoods." tial government interest, and whether reasonable al- Alameda Books, 535 U.S. at 434, 122 S.Ct. 1728 ternative avenues of communication remain avail- (plurality opinion). We look to the full record to de- able. Id. termine whether the purpose of the statute is to curb secondary effects. Fair Public Policy, 336 F.3d at FN16. In Fair Public Policy, we rejected the 1165 (quoting Colacurcio v. City of Kent, 163 F.3d contention that Justice Kennedy's separate 545, 552 (9th Cir.1998)). In doing so, we will "rely concurrence in Alameda Books signaled a on all objective indicators of intent, including the departure from the traditional Renton ana- face of the statute, the effect *1014 of the statute, lysis. Id. at 1162-63. As we explained, the comparison to prior law, facts surrounding enact- argument that Justice Kennedy meant to re- ment, the stated purpose, and the record of proceed- quire heightened scrutiny of restrictions of ings." Colacurcio, 163 F.3d at 551 (internal quotation the type at issue here "cannot be squared omitted). with his insistence that 'the central holding of Renton remains sound.' " Id. at 1162 All objective indicators are that, in prohibiting the (quoting Alameda Books, 535 U.S. at 448, provision of adult service during nighttime hours, the 122 S.Ct. 1728 (Kennedy, J., concurring)). county's predominant concern was with the ameliora- Nor is the proposition that a new and differ- tion of secondary effects. As with the statute at issue ent approach is required in the wake of his in Fair Public Policy, section 13(f) here applies to es- concurrence consistent with the weight of tablishments protected by the First Amendment- authority in the wake of that decision. See -adult movie theaters, book stores and video stores- id. at 1163. (citing Ben's Bar, Inc. v. Village -and establishments that enjoy no such protection: of Somerset, 316 F.3d 702, 721 (7th massage parlors. See Ordinance P-10 § 2. Fair Public Cir.2003), Z.J. Gifts D-4, LLC v. City of Policy, 336 F.3d at 1165. Justice Kennedy in Littleton, 311 F.3d 1220, 1239 n. 15 (10th Alameda Books found it significant that the ordinance Cir.2002), and World Wide Video of Wash., at issue in that case was "not limited to expressive Inc. v. City of Spokane, 227 F.Supp.2d 1143, activities. It also extends ... to massage parlors, which 1149 (E.D.Wash.2002)). the city has found to cause similar secondary effects." 535 U.S. at 447, 122 S.Ct. 1728 (Kennedy, J., con- B curring). 1 Our first task is to determine whether § 13(f) amounts Section 1 of the ordinance, moreover, amounts to a
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declaration of purpose, wherein the county board ac- ing the secondary effects associated with adult enter- knowledges that "adult oriented businesses may and tainment establishments. See Young, 427 U.S. at 71, do generate secondary effects that are detrimental to 96 S.Ct. 2440 (finding city's "interest in attempting to the public health, safety and welfare." Specifically, preserve the quality of urban life is one that must be those secondary effects include prostitution, drug ab- accorded high *1015 respect."). We recognized in use, health risks associated with HIV/AIDS, and in- Fair Public Policy that the specific interest in redu- filtration and proliferation of organized crime for the cing secondary effects associated with late night op- purpose of drug and sex related business activities. erations is a substantial one. 336 F.3d at 1166; see Id. Specifically, for our purposes, section 1 states that also National Amusements, 43 F.3d at 741 (city has a the "Board of Supervisors finds that the harmful sec- substantial interest in preserving peace and tranquil- ondary effects of adult oriented businesses are more ity for citizens during late evening hours); Richland pronounced when conducted continuously or during Bookmart, 137 F.3d at 440-41 (deterring "prostitution late night hours." The "stated purpose" is yet another in the neighborhood at night or the creation of 'drug objective indicator of the board's intent. See corners' on the surrounding streets" is a substantial Colacurcio, 163 F.3d at 552. interest).
Finally, all of the pre-enactment evidence before the Under Renton, of course, the critical issue is whether board deals with the secondary effects associated or not the state has come forward with evidence with adult entertainment establishments. Board mem- demonstrating a connection between the speech regu- bers were presented with a memo summarizing some lated and the secondary effects that motivated the ad- seventeen secondary effects studies, and were option of the ordinance. Alameda Books, 535 U.S. at provided with copies of secondary effects studies 441, 122 S.Ct. 1728 (plurality opinion) (discussing from Phoenix and Los Angeles. The board also held Renton test). The evidentiary burden is not high: the public hearings at which they heard testimony with county will prevail as long as it can demonstrate that respect to the need for reasonable regulation of it relied on evidence that is "reasonably believed to adult-oriented establishments so as to curb the sec- be relevant for demonstrating a connection between ondary effects associated with said establishments. speech and a substantial independent government in- See Fair Public Policy, 336 F.3d at 1167 (noting all terest." Id. documentary and testimonial evidence presented to Arizona legislature dealt with secondary effects). In The pre-enactment evidence before the Maricopa short, an examination of the record in this case leads County Board consists of certain documentary evid- ineluctably to the conclusion that, in seeking to regu- ence. Board members were provided with four-page late the hours of operation of adult-oriented establish- and fourteen-page reports summarizing the findings ments, the county's predominant purpose was the of secondary effects studies conducted in various oth- amelioration of secondary effects. Colacurcio, 163 er cities and counties. Board members were also F.3d at 552; Fair Public Policy, 336 F.3d at 1165-66. provided with copies of secondary effects studies conducted in Phoenix, Arizona, and Los Angeles, 3 California. The board also heard limited testimonial Since the county's purpose was to target secondary evidence concerning the need for regulation to curb effects, the hours of operation restriction will be up- secondary effects on surrounding neighborhoods. held if it is designed to serve a substantial govern- ment interest, is narrowly tailored to serve that in- All of this evidence fairly supports the rationale be- terest, and does not unreasonably limit alternative av- hind § 13(f): namely, prohibiting adult entertainment enues of communication. Renton, 475 U.S. at 50, 106 establishments from operating during late night hours S.Ct. 925; Fair Public Policy, 336 F.3d at 1166. will lead to a reduction in secondary effects. The re- cord in this case compares favorably to the record a found to pass muster in Fair Public Policy, 336 F.3d [30][31] The county has a substantial interest in curb- at 1168. In that case, we characterized the pre-
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enactment record as "a slim one." Id. at 1167. It con- nesses would be achieved less effectively in the ab- sisted of letters on the record documenting the prob- sence of § 13(f). [FN17] We conclude that the ordin- lems associated with adult entertainment businesses, ance's hours of operation provision satisfies the nar- as well as testimonial evidence regarding the late row tailoring requirement. night effects of such establishments. Id. The evidence before the Maricopa County Board also compares fa- FN17. Dream Palace argues that section vorably to the record in Mitchell, where lawmakers 13(f) is overly-broad because it prohibits the "received no documents or any sworn testimony in provision of "sexually related activities" pri- support of the bill." 10 F.3d at 133. Yet the Third Cir- or to noon on Sundays, but we rejected this cuit in Mitchell held that the state had met its eviden- argument in Fair Public Policy. This argu- tiary burden under Renton. In Ben Rich Trading, all ment "confuses the requirement that a regu- that the city relied on was evidence presented to the lation serve a substantial government in- state legislature two-years previously. 126 F.3d at terest with the requirement that it be nar- 161. In that case, too, the city had met its burden un- rowly tailored to that end." Id. at 1169 der Renton. See id. (quoting Lady J. Lingerie, 176 F.3d at 1365). The sort of line-drawing Dream The question is whether the county board relied on Palace urges us to engage in "is inconsistent evidence "reasonably believed to be relevant" in with a narrow tailoring requirement that demonstrating a connection between its rationale and only prohibits regulations that are substan- the protected speech, and it has done that here. The tially broader than necessary." Id. (internal answer is that the county board considered compre- quotation marks omitted). hensive summaries detailing findings from other jur- isdictions, examined two full studies from Los c Angeles and Phoenix, and heard limited testimonial [32] Finally, the ordinance must "leave open ample evidence concerning the need for reasonable regula- alternative channels for communication." Ward, 491 tion. All of the evidence it considered is both "reason- U.S. at 791, 109 S.Ct. 2746. As with the statute at is- able and relevant, and compares favorably with the sue in Fair Public Policy, 336 F.3d at 1170, section evidence presented in other cases." Fair Public 13(f) permits the businesses that come within its pur- Policy, 336 F.3d at 1168. Since Dream Palace has view to operate seventeen hours per day Monday failed to cast doubt on the state's theory, or on the through Saturday, and thirteen hours on Sunday, or evidence the state relied on in support of that theory, approximately 5,980 hour per year. It therefore leaves our precedent "commands that [we] should not stray open ample alternative channels for communication. from a deferential standard in these contexts, even The hours of operation restriction is therefore valid when First Amendment rights are implicated through under the First Amendment. [FN18] secondary effects." *1016Charter Comm's, Inc. v. FN18. We note also that there is no merit to County of Santa Cruz, 304 F.3d 927, 932 (9th Dream Palace's contention that the hours of Cir.2002). We are satisfied that the County has met operation restriction is unconstitutionally its burden under Renton. "underinclusive" because it singles out adult b entertainment establishments for "special The narrow tailoring requirement is satisfied so long treatment." Dream Palace repeats this "under- as the government's asserted interest "would be inclusiveness" argument with respect to sev- achieved less effectively absent the regulation." eral other provisions in the ordinance. We Colacurcio, 163 F.3d at 553 (quoting Ward v. Rock rejected precisely the same argument in Fair Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, Public Policy, and we do so again. Simply 105 L.Ed.2d 661 (1989)). Plainly, the government's put, the Renton framework is all about interest in curbing the secondary effects associated singling out adult and erotic entertainment, with late night operation of adult entertainment busi- so long as the government does so for the
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right reasons. "[T]he State may legitimately if it is a reasonable time, place, and manner restric- use the content of these materials as the tion. See Clark, 259 F.3d at 1005; United States v. basis for placing them in a different classi- Baugh, 187 F.3d 1037, 1042 (9th Cir.1999). fication...." Young, 427 U.S. at 70-71, 96 S.Ct. 2440. See also Isbell v. City of San The legislative record in this case indicates that adult Diego, 258 F.3d 1108, 1116 (9th Cir.2001) businesses are associated with a variety of secondary (the state "may choose to treat adult busi- effects, such as the presence of organized crime and nesses differently from other businesses"). money laundering, which directly involve employees in management positions. It is reasonable for the VII county to suppose that it can combat these negative [33] Dream Palace next challenges the requirement secondary effects by the permit process, which that managers must wear an identification card during screens out potential managers with a criminal his- work hours. Pursuant to section 12 of the ordinance, tory. The other secondary effects associated with managers are provided with a "work identification adult clubs--sex and drug offenses, health risks, and card," which contains a photograph, a permit number, the like--can all be controlled to some extent by man- and the date of expiration of the permit. Section 13(i) agement-level employees. The record therefore con- in turn provides that a manager "shall wear his or her tains ample evidence to support the requirement that identification" at all times during work hours. The a manager first obtain a license. The county has met card must be affixed to the front of the manager's its burden of demonstrating a connection between the clothing, so that the picture and permit numbers are burden it imposes on speech and a substantial gov- clearly visible. Ordinance P-10 § 13(h). ernment interest. Alameda Books, 535 U.S. at 441-42, 122 S.Ct. 1728 (plurality opinion). At oral argument, Dream Palace conceded that its primary concern with respect to this requirement was IX the possibility that an unsatisfied customer, armed Dream Palace's challenge to the ban on "specific with a manager's permit number from the manager's sexual activity" presents a much more difficult ques- identification card, may proceed to the county offices tion. The prohibition has to be understood in the con- and make a request pursuant to Arizona's Public Re- text of several other provisions in the ordinance, cords Act for the manager's home address and tele- starting with the proposition that the ordinance regu- phone number. It further conceded that *1017 should lates "adult oriented businesses." Those businesses we grant relief with respect to the disclosure require- are "adult arcades, adult bookstores or adult video ments, it no longer objects to section 13(i)'s identific- stores, cabarets, adult live entertainment establish- ation requirement. Since we are instructing the dis- ments, adult motion picture theaters, adult theaters, trict court to enter an injunction prohibiting public [and] massage establishments that offer adult service disclosure of that information pursuant to such a re- or nude model studies." Ordinance P-10 § 2. Each of quest, see supra section V.B, the basis for Dream these terms is in turn defined under the ordinance. An Palace's challenge vanishes. Hence, we conclude that "adult live entertainment establishment," of which this portion of Dream Palace's challenge is moot. Dream Palace is one, is an establishment that features "persons who appear in a state of nudity" or "live per- VIII formances that are characterized by the exposure of [34] Dream Palace also challenges the requirement specific anatomical areas or specific sexual activit- that managers obtain work permits in the first place, ies." Id. Each of the business definitions incorporates claiming there is no evidence in the legislative record the term "specific sexual activity." to support the county's position that licensing man- agers aids in its efforts to combat secondary effects, "Specific sexual activity," in turn, means any of the and that therefore the requirement is invalid under following: (1) "human genitals in a state of sexual Renton. Like any other restraint upon nude dancing, stimulation or arousal"; (2) "sex acts, normal or per- the manager permit requirement can be imposed only verted, actual or simulated, including acts of human
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masturbation, sexual intercourse, oral copulation or defines adult-oriented businesses as those that feature sodomy"; (3) "fondling or other erotic touching of the performances "characterized by the exposure of spe- human genitals, pubic region, buttocks, anus or fe- cific anatomical areas or specified sexual activities." male breast"; and (4) "excretory functions as part of The ordinance defines adult entertainment businesses or in connection with any of the activities" listed by reference to the presentation of adult live enter- above. Id. tainment, then forbids that presentation. To wit, Dream Palace is an adult entertainment business be- Section 13(e), the challenged provision, provides that cause it features nude and semi-nude dancers enga- an "adult service provider, in the course of providing ging in "specific sexual activity," and as a result, it is an adult service, may not perform a specific sexual prohibited from featuring nude or semi-nude "specif- activity." An adult service is, among other things, ic sexual activity." Dream Palace therefore finds it- *1018 "dancing, ... modeling, posing, ... singing, self in a catch-22: there is no way for it to comply reading, talking, listening or other performances or with the ordinance, unless it simply ceases to engage activities ... by a person who is nude or seminude." in protected expression entirely, and hence falls out- Id. § 2. Nude, nudity or a "state of nudity" means side of the scope of the ordinance altogether. "[t]he appearance of a human anus, or female breast below a point immediately above the top of the are- B ola" or "[a] state of undress which fails to opaquely [35] This is a total ban on nude and semi-nude dan- cover a human anus, genitals or female breast below cing in everything but name, and indeed the county a point immediately above the top of the areola." Id. concedes as much, arguing that it is empowered to ef- Seminude means "a state of dress in which clothing fect such a ban on the specific movements a dancer covers no more than the genitals, pubic region and fe- may, or more precisely may not, make, pursuant to its male breast below a point immediately above the top general police power. It relies on California v. of the areola, as well as portions of the body that are LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 covered by supporting straps or devices." (1972), and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996), A for this proposition. Section 13(e) proscribes activity that comes within the First Amendment's protections. In prohibiting In LaRue, the Supreme Court upheld a facial chal- dancers from engaging in "simulated sex acts," lenge to California regulations enacted in response to whatever they may be, the county appears to have live sex shows and sexual contact between nude per- proscribed the particular movements and gestures formers and patrons in establishments licensed to sell that a dancer may make during the course of a per- liquor. 409 U.S. at 111, 93 S.Ct. 390. The record in formance. One is left to speculate as to what move- that case was "a sordid one," and consisted of testi- ments, precisely, a dancer may incorporate in a per- mony regarding customers engaging in oral copula- formance without running afoul of section 13(e), and tion with dancers, public masturbation, and numerous yet still effectively convey an essentially adult, erotic, other contacts between male customers and female message to the audience. The prohibition applies performers. Id. The Court concluded that the regula- even if the dancer is at least partially clothed. If Elvis' tion was permissible because of the "critical fact ... gyrating hips can fairly be understood to constitute a that California has not forbidden these performances "simulated sex act," one can fully appreciate the po- across the board. It has merely*1019 proscribed such tential scope of the restrictions placed on erotic dan- performances in establishments it licenses to sell li- cers in Maricopa County. quor by the drink." Id. at 118, 93 S.Ct. 390 (emphasis added). The Court stated that the Twenty-First The problem lies in the circularity of the ordinance's Amendment required an "added presumption in favor logic: Section 13(e) forbids certain expressive activ- of the validity of state regulation in this area." Id. The ity--simulated sex acts--only within adult-oriented Court later disowned its reliance on the Twenty-first businesses but not elsewhere. But the ordinance Amendment in 44 Liquormart, 517 U.S. at 514-16,
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116 S.Ct. 1495, stating that "the States' inherent po- lating adult entertainment businesses, make this lice powers provide ample authority to restrict the amply clear. Whatever the scope of the county's as- kind of 'bacchanalian revelries' described in the serted police power, it "must be exercised within con- LaRue opinion regardless of whether alcoholic bever- stitutional limits." Moore v. East Cleveland, 431 U.S. ages are involved .... see, e.g., Young [and] Barnes 494, 514, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) ...." Id. at 515, 116 S.Ct. 1495. (Stevens, J., concurring).
LaRue and 44 Liquormart do not support the county's C proposition. LaRue rested squarely on the "critical [36] The county's fallback argument is that section fact" that California had not enacted an "across the 13(e) is valid under Renton. While the county is on board" ban, but rather prohibited such performances firmer ground here, we remain unconvinced of the in establishments it licenses to sell alcohol. That is soundness of its position. Renton and its progeny do not the case here; the Maricopa County ban on "spe- not give carte blanche to the government to proscribe cified sexual activities" is sweeping in its scope, and absolutely certain types of adult entertainment. is not limited to establishments holding a liquor li- Rather, Renton effects a common-sense balance cense. More important, the record before the legis- between the government's undoubted interest in curb- lature in LaRue spoke more to a "gross sexuality than ing the effects such businesses have on surrounding of communication," 409 U.S. at 118, 93 S.Ct. 390, communities on the one hand, and the enjoyment of, and contained a litany of recorded incidents of open and practice in, protected expression on the other. Its copulation between the dancers and patrons, as well rationale is that content-discriminatory time, place, as public masturbation, prostitution, and the like. and manner regulations receive intermediate scrutiny only when the *1020 government avoids a total ban The ordinance, however, strictly prohibits any con- on protected expression, and when its predominant tact between patrons and performers. See Ordinance interest, supported by an evidentiary record, is in the P-10 § 13(j). Further, the stage on which perform- amelioration of secondary effects. 475 U.S. at 54, ances take place must be elevated, patrons must stay 106 S.Ct. 925. at least three feet away from performers, and are sep- arated from them by a barrier or a railing, over which The county's bid for intermediate scrutiny fails to neither a patron nor a performer may extend "any part clear the first hurdle, because section 13(e) effects a of his or her body." Id. § 13(d). All performances total ban on a particular kind of erotic expression at must take place within a manager's sight line, id. § all times and in every part of the county. The argu- 13(g), and patrons are prohibited from tipping per- ment that section 13(e) is really just a plain old time, formers while the performer is "nude or seminude." place and manner restriction because it prohibits only Id. § 13(l ). The county has taken reasonable steps to certain expressive activity in certain types of estab- guard against the kind of "gross sexual conduct" or lishments but not elsewhere does not work because, "bacchanalian revelries" that were the target of the for reasons explained earlier, the only way an estab- regulation in LaRue. lishment fits within the ordinance in the first place is if it engages in that which the ordinance prohibits. After the ordinance takes those steps, however, it goes further, and restricts the particular movements The prohibition Maricopa County has put in place is and gestures a dancer may or may not make during quite different from any of the regulations the Su- the course of a performance. 44 Liquormart did not preme Court has considered in the Renton line. The suggest, as the county contends, that the government Renton ordinance itself was a classic content- may, pursuant to its "general police power," restrict discriminatory time, place, and manner regulation. constitutionally protected expression. The Court's While it targeted adult entertainment on the basis of citations to Young and Barnes immediately after the its content, the ordinance did "not ban adult theaters passage on which the county relies, both cases that altogether." 475 U.S. at 46, 106 S.Ct. 925. Instead, it apply First Amendment scrutiny to ordinances regu- imposed restrictions on where such establishments
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could operate in order to protect residential neighbor- by its own terms the Ordinance is directed to activity hoods. Id. Consequently, it was subject to intermedi- that conveys eroticism or sexuality." Brownell, 190 ate instead of strict scrutiny. Id. The same is true of F.Supp.2d at 489. the Young ordinance, which imposed geographic zon- ing restrictions on adult entertainment. 427 U.S. at *1021 The Seventh Circuit considered the same pro- 62, 96 S.Ct. 2440. So long as an establishment com- hibition on "specific sexual activity" in Schultz, 228 plied with the regulation, it was free to provide adult F.3d at 846-48, and struck it down as an unconstitu- entertainment "essentially unrestrained." Id. The tional infringement on protected expression. Court specifically noted in that case that "[t]he situ- By restricting the particular movements and ges- ation would be quite different if the ordinance had the tures of the erotic dancer ... the Ordinance uncon- effect of suppressing, or greatly restricting access to, stitutionally burdens the protected expression. The lawful speech." Id. at 71 n. 35, 96 S.Ct. 2440; see dominant theme of nude dance is an emotional one; also Schad v. Borough of Mount Ephraim, 452 U.S. it is one of eroticism and sensuality. [The Ordin- 61, 71, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981) ("The ance] deprives the performer of a repertoire of ex- Court [in Young ] did not imply that a municipality pressive elements with which to craft an erotic, could ban all adult theaters--much less all live enter- sensual performance and thereby interferes sub- tainment or all nude dancing--from its commercial stantially with the dancer's ability to communicate districts citywide."). her erotic message. It interdicts the two key tools of expression in this context that imbue erotic Other cases in the Renton line have drawn intermedi- dance with its sexual and erotic character--sexually ate scrutiny because, even though they incidentally explicit dance movements and nudity.... burdened expression, they were facially content-neut- Id. at 847 (internal citations and quotation marks ral laws of general applicability. In Barnes, the Court omitted). dealt with a state statute prohibiting nudity in public places "across the board" in a facially content-neutral The Seventh Circuit further explained that the gov- manner. 501 U.S. at 566, 111 S.Ct. 2456. The statute ernment could not hide behind Renton because "a on its face was "not at all inherently related to expres- secondary-effects rationale by itself does not bestow sion," id. at 585, 111 S.Ct. 2456 (Souter, J., concur- upon the government free license to suppress specific ring), and was therefore subject to intermediate scru- content of a specific message ...." Id. at 845. "[S]uch tiny. The city ordinance in Erie was also a content- a regime would permit the government to single out a neutral proscription of public nudity. In upholding message expressly, formulate a regulation that pro- the ordinance, the Court explained that "[b]eing 'in a hibits it, then draw content-neutral treatment nonethe- state of nudity' is not an inherently expressive condi- less simply by producing a secondary effects ra- tion.... By its terms, the ordinance regulates conduct tionale as pretextual justification." Id. at 844; see also alone. It does not target nudity that contains an erotic Brownell, 190 F.Supp.2d at 484-93 (following message; rather, it bans all public nudity, regardless Schultz and striking prohibition on "specified sexual of whether that nudity is accompanied by expressive activities"). activity." 529 U.S. at 289-90, 120 S.Ct. 1382 We are inclined to agree with the Seventh Circuit. (emphasis added). The prohibition at issue in this Maricopa County cannot avoid the constitutional pro- case is of a different order. It is not a content- hibition on proscribing non-obscene speech "by regu- discriminatory time, place and manner regulation, so lating nude dancing with such stringent restrictions it is not like the ordinances at issue in Renton and that the dance no longer conveys eroticism nor re- Young. Nor is it a facially-neutral law of general ap- sembles adult entertainment." Schultz, 228 F.3d at plicability, so it is not like the ordinances in Barnes 844. Section 13(e), in preventing erotic dancers from and Erie. Section 13(e) "does not ... simply ban or re- practicing a protected form of expression, does pre- strict certain conduct, irrespective of any message cisely that. that the conduct may be intended to convey; instead,
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We therefore apply strict scrutiny to section 13(e). To state law claims if, among other reasons, "the claim survive strict scrutiny, the provision must be tailored raises a novel or complex issue of State law," or "the to "serve a compelling state interest and is narrowly district court has dismissed all claims over which it drawn to achieve that end." Simon & Schuster, Inc. v. had original jurisdiction." Such is the case here: the New York Crime Victims Bd., 502 U.S. 105, 118, 112 district court had decided each and every claim over S.Ct. 501, 116 L.Ed.2d 476 (1991). Section 13(e) is which it had original jurisdiction, and the remaining not necessary to serve Maricopa County's unques- state law claims, concerning as they do issues of the tioned significant interest in ameliorating secondary balance of power between state and local authorities effects. The county can, and does, utilize a variety of in Arizona, involved delicate issues of state law. less restrictive and more direct means to fight those While the district court had the discretion to reach effects. Nor has the county explained how the restric- and to decide these state law issues, we cannot say tion will in fact further its interest in curbing second- that its refusal to do so constituted an abuse of discre- ary effects. Therefore, we must conclude that section tion. See 28 U.S.C. § 1367. 13(e) is an unconstitutional burden on the enjoyment of protected expression. XI [38][39] Finally, because we have declared Ordin- Our decision today does not necessarily imply that ance P-10 constitutionally invalid for some purposes none of the activities listed in section 13(e) may be but not for others, we must determine whether the proscribed, consistent with the Constitution, through valid portions can be severed from the invalid ones. a well-crafted ordinance. Cf. Brownell, 190 "An entire statute need not be declared unconstitu- F.Supp.2d at 492. Section 13(e) is far too broad, tional if constitutional portions can be severed." Re- however, and restricts in sweeping terms the ability public Inv. Fund I v. Town of Surprise, 166 Ariz. 143, of erotic dancers to convey their intended erotic mes- 151, 800 P.2d 1251 (1990). Under Arizona law, the sage. In defining establishments by reference to that test for severability requires ascertaining legislative which it prohibits, it amounts to an absolute ban on intent. Id. "[T]he most reliable evidence of that intent such activity in Maricopa County. For these reasons, is the language of the statute." State v. Prentiss, 163 section 13(e) is unconstitutional. Ariz. 81, 86, 786 P.2d 932 (1989). The Arizona Su- preme Court has held that where "the valid parts of a X statute are effective and enforceable standing alone [37] In addition to the various First Amendment chal- and independent of those portions declared unconsti- lenges to Ordinance P-10, Dream Palace sought in- tutional," a court should not disturb the valid part "if validation of certain of its provisions on state law the valid and invalid portions are not so intimately grounds. Specifically, Dream Palace sought summary connected as to raise the presumption the legislature judgment with respect to certain operating restric- would not have enacted one without the other, and tions on the basis *1022 that state law has preempted the invalid portion was not the inducement of the county law; it also sought invalidation of certain pen- act." Selective Life Ins. Co. v. Equitable Life Assur- alty provisions as ultra vires. The district court de- ance Soc'y, 101 Ariz. 594, 599, 422 P.2d 710 (1967). clined to reach these issues, and dismissed the claims, explaining that "the remaining state-law claims raise [40] Ordinance P-10 contains a robust severability delicate issues involving the interpretation and ap- clause: "Each section and each provision or require- plication of Arizona law and the balance of powers ment of any section of this ordinance shall be deemed within Arizona between state and local government." severable and the invalidity of any portion of this or- We review that decision for an abuse of discretion. dinance shall not affect the validity or enforceability See Bryant v. Adventist Health Sys./West, 289 F.3d of any other portion." Ordinance § 25. Given that the 1162, 1165 (9th Cir.2002). county board has clearly expressed its intent with re- spect to severability, we think the invalid portions of 28 U.S.C. § 1367 affords district courts the discretion the ordinance are easily severable. We hold unconsti- to decline to exercise jurisdiction over supplemental tutional the prohibition on specified sexual activity,
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and have instructed the district court to enjoin the dis- ADULT ORIENTED BUSINESSES AND ADULT closure to the public of information provided by per- SERVICE mit applicants. The vast majority of the provisions in PROVIDERS the ordinance, including the licensing scheme, and SECTION 1. FINDINGS multiple operating restrictions, withstand scrutiny. The invalid portions are, therefore, severable from Based on public testimony and other evidence before the remainder, and the remaining valid portions may it, including information, studies and court decisions remain in force. from other jurisdictions, and in accordance with A.R.S. 11-821, the Maricopa County Board of Super- AFFIRMED in part, REVERSED in part, and RE- visors makes the following legislative findings and MANDED with instructions. Each party shall bear its statement of purpose: own costs. The Board of Supervisors recognizes that some activ- CANBY, Circuit Judge, concurring: ities which occur in connection with adult oriented businesses are protected as expression under the First I concur in Judge O'Scannlain's well-written opinion. Amendment to the United States Constitution. The Were I writing on a blank slate, however, I would Board of Supervisors further recognizes that First dissent from Section VI, which upholds the prohibi- Amendment rights are among our most precious and tion *1023 against operation of adult-oriented busi- highly protected rights, and wishes to act consistently nesses between the hours of 1:00 a.m. and 8:00 a.m. with full protection of those rights. The Board is on Monday through Saturday, and 1:00 a.m. and aware, however, that adult oriented businesses may 12:00 noon on Sunday. As Judge O'Scannlain's opin- and do generate secondary effects which are detri- ion recognizes, the result reached in Section VI is mental to the public health, safety and welfare. largely controlled by Fair Public Policy v. Maricopa Among those secondary effects are (a) prostitution County, 336 F.3d 1153 (9th Cir.2003). I dissented in and other sex related offenses (b) drug use and deal- that case because I was convinced, as I still am, that ing (c) health risks through the spread of AIDS and the hours restriction violated the holding of a major- other sexually transmitted diseases and (d) infiltration ity of the Supreme Court (per Justice Kennedy) in by organized crime for the purpose of drug and sex City of Los Angeles v. Alameda Books, Inc., 535 U.S. related business activities, laundering of money and 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). The re- other illicit conduct. This ordinance is not intended to cord in the present case is not sufficiently different interfere with legitimate expression but to avoid and from that in Fair Public Policy to lead me to a differ- mitigate the secondary effects enumerated above. ent conclusion. I recognize, however, that my view Specifically, the Board of Supervisors finds the li- did not prevail in Fair Public Policy, and I am bound censing of persons who operate and manage adult by that decision. I therefore concur fully in Judge oriented businesses and persons who provide adult O'Scannlain's opinion today. services will further the goals of the ordinance by en- abling the County to ascertain if an applicant is un- APPENDIX derage or has engaged in criminal or other behavior ORDINANCE NO. P-10 of the sort the ordinance is designed to limit. This in- ADOPTED April 23, 1997 formation will enable the County to allocate law en- forcement resources effectively and otherwise protect AMENDED July 23, 1997 the community. The Board of Supervisors finds that limiting proximity and contact between adult service AMENDED July 17, 1998 providers and patrons promotes the goal of reducing prostitution and other casual sexual conduct and the ADOPTED as AMENDED September 2, 1998 attendant risk of sexually transmitted diseases. The MARICOPA COUNTY ORDINANCE NO. 10 Board of Supervisors finds the foregoing to be true with respect to places where alcohol is served and
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where it is not. The Board of Supervisors finds that sexual activities. individual and interactive sexual activities in adult Adult Motion Picture Theater means a commercial video facilities pose a risk of sexually transmitted establishment in which for any form of consideration disease, especially AIDS, and *1024 that the booth films, motion pictures, video cassettes, slides or other configuration options of the ordinance will reduce similar photographic reproductions that are character- that risk. The Board of Supervisors finds that the ized by the depiction or description of specific sexual harmful secondary effects of adult oriented busi- activities or specific anatomical areas are predomin- nesses are more pronounced when conducted con- antly shown. tinuously or during late night hours. The fees estab- lished for licenses and permits in this ordinance are Adult oriented business means adult arcades, adult based on the estimated cost of implementation, ad- bookstores or adult video stores, cabarets, adult live ministration and enforcement of the licensing pro- entertainment establishments, adult motion picture gram. theaters, adult theaters, massage establishments that offer adult service or nude model studios. SECTION 2. DEFINITIONS Adult oriented business manager or "manager" The following words, terms and phrases when used in means a person on the premises of an adult oriented this ordinance shall have the meanings ascribed to business who is authorized to exercise overall opera- them in this section, except where the context clearly tional control of the business. indicates a different meaning: Adult service means dancing, serving food or bever- Adult Arcade means any place to which the public is ages, modeling, posing, wrestling, singing, reading, permitted or invited and in which coin-operated or talking, listening or other performances or activities slug-operated or electronically, electrically or mech- conducted for any consideration in an adult oriented anically controlled still or motion picture machines, business by a person who is nude or seminude during projectors or other image-producing devices are all or part of the time that the person is providing the maintained to show images involving specific sexual service. activities or specific anatomical areas to persons in booths or viewing rooms. Adult service business means a business establish- ment or premises where any adult service is provided Adult Bookstore or Adult Video Store means a to patrons in the regular course of business. commercial establishment that offers for sale or rent any of the following as one of its principal business Adult service provider or "provider" means any purposes: person who provides an adult service. (1) Books, magazines, periodicals or other printed Adult theater means a theater, concert hall, auditori- matter, photographs, films, motion pictures, video um or similar commercial establishment that predom- cassettes or video reproductions or slides or other inantly features *1025 persons who appear in a state visual representations that depict or describe spe- of nudity or who engage in live performances that are cific sexual activities or specific anatomical areas; characterized by the exposure of specific anatomical or areas or specific sexual activities. (2) Instruments, devices or paraphernalia that are designed for use in connection with specific sexual Booth means a partitioned area, in which coin or activities. token operated video machines, projectors or other Adult Live Entertainment Establishment means an electronically or mechanically controlled devices are establishment that features either: used in the regular course of business to produce still (1) Persons who appear in a state of nudity; or or moving picture images characterized by depiction (2) Live performances that are characterized by the of specific sexual activities or specific anatomical exposure of specific anatomical areas or specific areas.
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Cabaret means an adult oriented business licensed to Chapter 13 or 17; provide alcoholic beverages pursuant to A.R.S. Title (3) Persons employed or acting as trainers for any 4, Chapter 2, Article 1. bona fide amateur, semiprofessional or profession- al athlete or athletic team; County Sheriff means the elected County Sheriff or (4) Persons who are licensed pursuant to A.R.S. the Sheriff's designee. TITLE 32, Chapter 3 or 5, if the activity is limited to the head, face or neck. Director means the director of Maricopa County Nude Model Studio means a place in which a person Planning and Development Department or the Direct- who appears in a state of nudity or who displays spe- or's designee. cific anatomical areas is observed, sketched, drawn, Employee means any person hired, engaged or au- painted, sculptured, photographed or otherwise depic- thorized to perform any service on the premises of an ted by other persons who pay money or other consid- adult service business, including an adult service pro- eration. Nude model studio does not include a propri- vider, whether denominated as an employee, inde- etary school that is licensed by the State of Arizona pendent contractor or otherwise. or a college, community college or university that is supported entirely or in part by taxation, a private Enterprise means a corporation, association, labor college or university that maintains or operates edu- union or other legal entity, as provided in A.R.S. cational programs in which credits are transferable to 13-105. a college, community college or university supported entirely or partly by taxation, or a structure to which License means the license required by this ordinance the following apply: as a condition to conducting an adult oriented busi- *1026 (1) A sign is not visible from the exterior of ness. the structure and no other advertising appears in- dicating that a nude person is available for view- Licensee means a person or enterprise holding an ing; and adult oriented business license issued under this or- (2) A student must enroll at least three days in ad- dinance, including those persons required to provide vance of the class in order to participate; and information under section 6 of this ordinance. (3) No more than one nude or seminude model is Manager's station means a permanently designated on the premises at any time. area marked accordingly within an adult oriented Nude, Nudity or state of nudity means any of the business where an adult oriented business manager is following: located in the normal course of operations. a) The appearance of a human anus, or female breast below a point immediately above the top of Massage Establishment means an establishment in the areola. which A person, firm, association or corporation en- b) A state of dress which fails to opaquely cover a gages in or permits massage activities, including any human anus, genitals or female breast below a method of pressure on, friction against, stroking, point immediately above the top of the areola. kneading, rubbing, tapping, pounding, vibrating or Patron means a person invited or permitted to enter stimulating of external soft parts of the body with the and remain upon the premises of an adult oriented hands or with the aid of any mechanical apparatus or business, whether or not for consideration. electrical apparatus or appliance. This definition shall not apply to: Permit means the permit required by this ordinance (1) Physicians licensed pursuant to A.R.S. Title 32, to engage in the activities of an adult service provider Chapter 7, 8, 13, 14 or 17; or an adult oriented business manager. (2) Registered nurses, licensed practical nurses or Principal business purposes means that a commer- technicians who are acting under the supervision of cial establishment derives fifty percent or more of its a physician licensed pursuant to A.R.S. Title 32, gross income from the sale or rental of items listed in
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subparagraphs (1) and (2) of the definitions in this the administration and enforcement of this ordin- section of adult bookstore or adult video store. ance as may be requested by the Director. *1027 b) License or permit applications made pur- Seminude means a state of dress in which clothing suant to this ordinance shall be submitted to the covers no more than the genitals, pubic region and fe- Director who shall grant, deny, suspend or revoke male breast below a point immediately above the top licenses or permits in accordance with the provi- of the areola, as well as portions of the body that are sions of this ordinance. covered by supporting straps or devices. c) Licenses issued pursuant to this ordinance shall be valid for a period of one year from date of issu- Specific anatomical areas means any of the follow- ance. ing: d) Permits issued pursuant to this ordinance shall a) A human anus, genitals, pubic region or a female be valid for a period of three years from the date of breast below a point immediately above the top of issuance. the areola that is less than completely and opaquely covered. SECTION 5. ADULT ORIENTED FACILITIES b) Male genitals in a discernible turgid state even if BUSINESS LICENSE REQUIRED completely and opaquely covered. a) A person or enterprise may not conduct an adult Specific sexual activities means any of the follow- oriented business without first obtaining an adult ing: oriented business license pursuant to this ordin- a) Human genitals in a state of sexual stimulation ance. The license shall state the name of the license or arousal. holder, the name, address and phone number of the b) Sex acts, normal or perverted, actual or simu- licensed premises, and the dates of issuance and lated, including acts of human masturbation, sexual expiration of the license. intercourse, oral copulation or sodomy. b) An adult oriented business for which a license c) Fondling or other erotic touching of the human has been issued pursuant to this ordinance may genitals, pubic region, buttocks, anus or female conduct business only under the name or designa- breast. tion specified in the license. d) Excretory functions as part of or in connection c) A licensee shall conduct business only at the ad- with any of the activities under subdivision a), b) dress shown on the license. Each additional place or c) of this definition of specific sexual activities. of business shall require a separate license. d) An adult oriented business license shall be dis- SECTION 3. PURPOSE played on the premises in such a manner as to be The principal purpose of this ordinance is to establish readily visible to patrons. licensing procedures and regulations for adult ori- SECTION 6. APPLICATION FOR ADULT ORI- ented businesses and facilities, and their employees, ENTED BUSINESS LICENSE within the unincorporated areas of Maricopa County. a) An applicant for an adult oriented business li- The procedures and regulations contained herein are cense shall file at the office of the Director an ap- designed to accommodate these types of businesses plication, signed under oath by the applicant and and facilities while still recognizing the need to pro- notarized, accompanied by the fee required under mote the public health, safety and general welfare of section 21. An applicant or other person whose fin- the citizens of Maricopa County. gerprints and photograph are required under para- SECTION 4. ADMINISTRATION graph C may, at his option, be photographed and a) The administration of this ordinance, including fingerprinted at the office of the Sheriff or other the duty of prescribing forms, is vested in the Dir- law enforcement agency. An application shall be ector, except as otherwise specifically provided. deemed complete when the Director has received The County Sheriff shall render such assistance in the required fees, all information required in para- graph C, fingerprints of the applicant and a photo-
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graph of the applicant's face, and, in the case of a 4) Written proof of age of the applicant, in the form corporation or other business organization, A pho- of a birth certificate, current driver's license with tograph and fingerprints of all persons for whom picture, or other picture identification document is- information is required under paragraph C of this sued by a governmental agency. section. The purpose for obtaining these finger- 5) The issuing jurisdiction and the effective dates prints and photographs is to obtain a state and fed- of any license or permit relating to an adult ori- eral records check. The Sheriff's Office and the De- ented business or adult service, whether any such partment of Public Safety are authorized to ex- license or permit has been revoked or suspended change this information with the Federal Bureau of within the past two years, and, if so, the reason or Investigation. reasons therefor. b) Fingerprints and photograph, if not taken at the 6) All criminal charges, complaints or indictments office of the Sheriff, shall be taken by a law en- in the preceding three years which resulted in a forcement agency and accompanied by a notarized conviction or a plea of guilty or no contest for an verification by that agency. If the applicant re- "organized crime and fraud" offense under A.R.S. quests that fingerprints and photograph be taken by title 13, chapter 23, a "prostitution" offense under the office of the sheriff, such fingerprints and pho- A.R.S. title 13, chapter 32, a "drug offense" under tograph shall be completed by the office of the A.R.S. title 13, chapter 34, or a "sexual offense" sheriff within ten working days of the request. Any under A.R.S. title 13, sections 1401 through 1406 such fingerprints or photograph not completed by or under section 1412, or for conduct in another the office of the sheriff within ten working days of jurisdiction which if carried out in Arizona would the request shall be deemed to have been com- constitute an offense under one of the statutory pleted and received by the director for purposes of provisions enumerated in this subparagraph. the application. 7) The applicant's fingerprints and a photograph of c) The application shall include the information the applicant's face. called for in subparagraphs 1 through 10. If the ap- 8) The name and address of the statutory agent or plicant is an enterprise, it shall designate an officer other agent authorized to receive service of pro- *1028 or partner as applicant. In such case, in addi- cess. tion to the information required in subparagraphs 1 9) The names of the adult oriented business man- through 10 for the applicant, the application shall ager(s) who will have actual supervisory authority include the State and date of formation of the or- over the operations of the business. ganization and the information called for in sub- 10) An accurate, to scale, but not necessarily pro- paragraphs 2 through 7 of this section with respect fessionally drawn, site plan and floor plan of the to each officer, director, general partner, and all business premises and, in an application for an other persons with authority to participate directly adult service business license, also clearly indicat- and regularly in management of the business, ing the location of one or more manager's stations. provided that, such information need not be d) The information provided pursuant to subpara- provided with respect to attorneys, accountants and graphs 5 and 6 of paragraph C of this section shall other persons whose primary function is to provide be supplemented in writing by certified mail to the professional advice and assistance to the licensee. Director within ten working days of a change of 1) The name, business location, business mailing circumstances which would render the information address and phone number of the proposed adult originally submitted false or incomplete. oriented business establishment. e) As requested by the director, the Sheriff shall in- 2) The applicant's full true name and other names, vestigate and confirm information supplied by the aliases or stage names used in the preceding five applicant. years. 3) The applicant's current residential mailing ad- SECTION 7. ADULT ORIENTED BUSINESS dress and telephone number. MANAGER PERMIT
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a) A person may not serve as an adult oriented a notice of intent to deny. If the Director fails to do business manager unless the person has first se- so, the license shall be deemed granted. cured an adult oriented *1029 business manager b) Upon receipt of an application for an adult ori- permit under this section. ented business manager permit or an adult service b) Application for an adult oriented business man- provider permit, including all information required ager permit shall be made in the same manner as by sections 7(b) and 8(b), payment of the required application for an adult business license, except fees and completion of photograph and fingerprint- that the applicant need provide only the informa- ing requirements of section 6, the Director shall is- tion called for in subparagraphs 2 through 7 of sec- sue to the applicant a temporary permit. Within tion 6(c). thirty days after issuance of a temporary permit, the c) The purpose for obtaining the applicant's finger- Director shall mail to the applicant a regular permit prints and a photograph of the applicant's face is to or a notice of intent to deny. If the Director fails to obtain a state and federal records check. The sher- do so, the permit shall be deemed granted. iff's office and the department of public safety are c) The issuance of any license, permit or temporary authorized to exchange this information with the permit does not waive any right of County to re- federal bureau of investigation. voke, deny or suspend for any defect, omission or misrepresentation in the application. SECTION 8. ADULT SERVICE PROVIDER PER- d) The Director shall grant the license or perman- MIT ent permit to an applicant who has completed all a) A person may not work as an adult service pro- requirements for application, unless the Director vider unless the person has first obtained an adult finds any of the following conditions noted below. service provider permit under this section. For purposes of this paragraph, a person required to b) Application for an adult service provider permit submit information pursuant to section 6(c) shall be shall be made in the same manner as an application deemed an applicant. for an adult oriented business license, except that 1) The application is incomplete or contains a mis- the applicant need provide only the information representation, false statement or omission. called for in subparagraphs 2 through 7 of section 2) The applicant has failed to comply with applic- 6(c). able zoning or other land *1030 use ordinances of c) The purpose for obtaining the applicant's finger- the County relating to the business or activity to be prints and a photograph of the applicant's face is to carried out under the license or permit. obtain a state and federal records check. The sher- 3) The applicant is delinquent in payment of any iff's office and the department of public safety are county taxes, fees or other payments due in con- authorized to exchange this information with the nection with the business or activity to be carried federal bureau of investigation. out under the license or permit. 4) The applicant is not at least eighteen years of SECTION 9. CONFIDENTIALITY age. The information provided by an applicant in connec- 5) The applicant, or other person required to tion with the application for a license or permit under provide information under section 6(c), in the past this ordinance shall be maintained in confidence by three years has been convicted, or plead guilty or the Director, subject only to the public record laws of no contest with respect to a felony violation or two the State of Arizona. misdemeanor violations of one or more offenses in the categories stated in section 6(c). SECTION 10. GRANT OR DENIAL OF LICENSE 6) Within the past two years, a license or permit OR PERMIT under this article held by an applicant, or other per- a) Within forty five days after receipt of a complete son required to provide information pursuant to application for an adult oriented business license, section 6(c), has been revoked, or a similar license the Director shall mail to the applicant a license or in another jurisdiction has been revoked on the
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basis of conduct which would be a ground for re- present. The stage or designated area thereof shall vocation of a license or permit issued under this be separated from the area in which patrons may be section if committed in the county. located by a barrier or railing the top of which is at least three feet above floor level. A provider *1031 SECTION 11. NON-TRANSFERABILITY or patron may not extend any part of his or her body over or beyond the barrier or railing. Licenses and permits issued under this article are e) An adult service provider, in the course of nontransferable. providing an adult service, may not perform a spe- SECTION 12. ADULT SERVICE PROVIDER OR cific sexual activity. MANAGER WORK IDENTIFICATION CARD f) Adult services may not be provided between the hours of 1:00 a.m. and 8:00 a.m. on Monday The Director shall provide a work identification card through Saturday or between the hours of 1:00 a.m. to all adult service providers and adult oriented busi- and 12:00 noon on Sunday. ness managers. The card shall contain a photograph g) An adult service may not be provided in any loc- of the permittee, the number of the permit issued to ation which is not visible by direct line of sight at that permittee and the date of expiration of the per- all times from a manager's station located in a por- mit. tion of the premises which is accessible to patrons of the adult service business. SECTION 13. ADULT SERVICE BUSINESS; OP- h) An adult service provider shall wear his or her ERATING REQUIREMENTS adult service provider work identification card at a) A person employed or acting as an adult service all times while on the premises except while provider or manager shall have a valid permit is- providing an adult service. The card shall be af- sued pursuant to the provisions of this ordinance. A fixed to clothing on the front of the person and permit or a certified copy thereof for each manager above waist level so that the picture and permit or provider shall be maintained on the premises in number are clearly visible to patrons. the custody of the manager at all times during i) An adult oriented business manager shall be on which a person is serving as a provider or manager the premises of an adult service business at all on the premises. Such permits shall be produced by times during which any adult service is provided the manager for inspection upon request by a law on the premises. The manager shall wear his or her enforcement officer or other authorized county of- identification card in the manner described in para- ficial. graph h above. b) An adult service business shall maintain a daily j) An employee may not knowingly or intentionally log of all persons providing adult services on the touch the breast, buttocks or genitals of a patron, premises. The log shall cover the preceding twelve nor may a patron knowingly or intentionally touch month period and shall be available for inspection the breast, buttocks or genitals of an employee. upon request by a law enforcement officer or other k) A sign, in a form to be prescribed by the Direct- authorized county official during regular business or summarizing the provisions of subparagraphs c, hours. d, j, and l of this section, shall be posted near the c) A person below the age of eighteen years may entrance of an adult service business in such a not observe or provide an adult service. manner as to be clearly visible to patrons upon d) A person may not provide an adult service in an entry. adult service business except upon a stage elevated l) A patron may not place any money on the person at least eighteen inches above floor level. All parts or in or on the costume of an adult service provider of the stage, or a clearly designated area thereof while the adult service provider is nude or semi- within which the adult service is provided, shall be nude. a distance of at least three feet from all parts of a m) A manager or licensee may not knowingly per- clearly designated area in which patrons may be mit or tolerate a violation of any provision of this
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section. The Director shall suspend a license or permit for a n) With respect to a cabaret, the requirements of period of ten days if the licensee or permittee is con- this section shall apply to the extent that they are victed of violating a provision of this ordinance. not in conflict with specific statutory or valid regu- latory requirements applicable to persons licensed SECTION 17. REVOCATION OF LICENSE OR to dispense alcoholic beverages. PERMIT
SECTION 14. ADULT ARCADES; OPERATING The Director shall revoke a license or permit issued REQUIREMENTS pursuant to this ordinance if the licensee or permittee: a) An adult arcade shall be equipped with overhead a) Is convicted of three or more violations of this lighting fixtures of sufficient intensity to illuminate ordinance in any twelve month period. every place to which patrons are permitted access b) Is convicted or pleads guilty or no contest to an at an illumination of not less than one footcandle, offense stated in section 6(c). as measured at the floor level. c) Is determined to have filed inaccurate informa- b) Each booth or viewing room shall either: (a) be tion required under section 10(d) of this ordinance. configured in such a way that allows persons SECTION 18. PROCEDURES FOR DENIAL, RE- patrolling the area outside the booth or viewing VOCATION, NONRENEWAL OR SUSPENSION; room to observe from outside the booth or viewing APPEAL room the activities of any occupant in the interior of the booth or viewing room, or (b) if not so con- If the Director determines that grounds exist for deni- figured, be equipped with a mirror or other device al, suspension or revocation of a license or permit un- which allows persons patrolling the area outside der this ordinance, he/she shall notify the applicant, the booth or viewing room to observe from outside licensee or permittee (respondent) in writing of his/ the booth or viewing room the activities of any oc- her intent to deny, suspend or revoke, including a cupant in the interior of the booth or viewing room. summary of the grounds therefor. The notification c) An adult oriented business manager shall be on shall be by certified mail to the address on file with the premises of an adult arcade at all times that the the Director. Within ten working days of receipt of arcade is open for business. The manager shall such notice, the respondent may provide to the Dir- *1032 wear his or her identification card in the ector in writing a response which shall include a manner described in section 13(h) above. statement of reasons why the license or permit should d) A patron may not engage in specific sexual not be denied, suspended or revoked and may include activities on the premises of an adult arcade. a request for a hearing. If a response is not received e) A booth or viewing room shall not have any hole by the Director in the time stated, the notification or aperture in any wall separating that booth or shall be the final administrative action of denial, sus- viewing room from another. pension or revocation and notice of such will be sent f) A manager or licensee may not knowingly per- to the permittee or licensee within five working days mit or tolerate a violation of any provision of this after the expiration of the period for submitting a re- section. sponse. Within five working days after receipt of a response, the Director shall either withdraw the intent SECTION 15. INSPECTION OF PREMISES AND to deny, suspend or revoke, and send notification of RECORDS the withdrawal to the respondent in writing by certi- The manager shall permit law enforcement officers or fied mail, or shall schedule a hearing before a hearing other authorized county officials to inspect the officer and send notification to the respondent in premises upon request during regular business hours. writing by certified mail of the date, time and place of the hearing. If the Director fails to send a timely SECTION 16. SUSPENSION OF LICENSE OR notification either withdrawing the intent or schedul- PERMIT ing a hearing, the intent to deny, suspend or revoke
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shall be deemed withdrawn. The hearing, if reques- tion, including fingerprints and a photograph, ted, shall be scheduled not less than fifteen nor more provided that, a renewal application need not con- than thirty working days after receipt by the Director tain any other information that has been provided of the request for a hearing. The hearing shall be con- in a previous application and has not changed since ducted in an informal manner. The respondent may the time of the most recent application. An applica- be represented by counsel. If respondent is represen- tion for license renewal shall be received by the ted *1033 by counsel, attorneys' fees shall be at the Director not less than forty five days before the ex- expense of respondent. The rules of evidence shall piration of the license. An application for permit not apply. Respondent shall have the burden of prov- renewal shall be received by the Director before ing by a preponderance of the evidence that the deni- expiration of the permit. al, suspension or revocation was arbitrary or capri- b) The Director may deny an application for re- cious and an abuse of discretion. The hearing officer newal for the reasons and in accordance with the shall render a written decision within five working procedures set forth in Section 10. days after completion of the hearing and shall mail a copy of the decision by certified mail to the address SECTION 21. FEES of the respondent on file with the Director. If more a) An original application for an adult oriented than forty five days elapse between receipt by the business license shall be accompanied by a non- Director of a request for a hearing and mailing by the refundable application fee in the amount of five hearing officer of a final decision to the respondent, a hundred dollars ($500) and by a license fee in the decision in favor of the applicant, licensee or permit- amount of five hundred dollars ($500). The license tee shall be deemed to have been rendered. In the fee will be refunded if the license is denied. An ap- case of an intent to revoke, suspend or non-renew a plication for renewal shall be accompanied by the license or permit, or to deny a regular permit, the per- amount of the license fee. mittee or licensee may continue to function under the b) An application for issuance or renewal of an license or permit pending receipt of the final decision adult service provider permit shall be accompanied of the hearing officer. The decision shall be final at by a non-refundable fee of one hundred dollars the end of five working days after it is mailed and ($100). shall constitute final administrative action. c) An application for issuance or renewal of an adult oriented business manager permit shall be ac- SECTION 19. JUDICIAL APPEAL companied by a non-refundable fee of one hundred and fifty dollars ($150). Final administrative action to deny, revoke or non- d) A duplicate or certified copy of a license, permit renew a license or permit may be appealed to the Su- or identification card shall be issued by the Direct- perior Court by special action or other available pro- or upon payment of a fee of ten dollars ($10). cedure within thirty five days after receipt of written *1034 e) An applicant also shall be required to pay, notice of the decision. The County shall consent to to the law enforcement agency which provides the expedited hearing and disposition. If a permittee or li- applicant with fingerprinting or photography ser- censee pursues a judicial appeal from a final adminis- vices, the standard fee, if any, charged by that trative action, that permittee or licensee may continue agency for each set of fingerprints and the photo- to function under the license or permit pending com- graph required to be provided under section 6. pletion of judicial review. SECTION 22. OTHER REGULATIONS SECTION 20. LICENSE AND PERMIT RENEW- AL A license or permit required by this ordinance is in a) A license or permit may be renewed by filing an addition to any other licenses or permits required by application for renewal in writing with the Direct- the County or the State to engage in the business or or. The application shall contain the information occupation. Persons engaging in activities described required to be submitted with an original applica- in this ordinance shall comply with all other ordin-
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ances and laws, including the County Zoning Ordin- • 2004 WL 2085103 (Appellate Brief) Appellants' ance, as may be required, to engage in a business or Supplemental Reply Brief on Impact of City of profession. Littleton v. Z.J. Gifts on Disposition of this Appeal (Aug. 20, 2004)Original Image of this Document SECTION 23. PENALTY with Appendix (PDF) a) Violation of any requirement or prohibition stated in this ordinance is a Class 2 Misdemeanor, • 2004 WL 1948899 (Appellate Brief) Appellants' punishable upon conviction by a fine of not more Initial Supplemental Brief on Impact of City of than seven hundred and fifty dollars ($750) or by Littleton v. Z.J. Gifts on Disposition of this Appeal imprisonment for not more than four months. With (Jul. 20, 2004)Original Image of this Document respect to a violation that is continuous in nature, (PDF) each day that the violation continues shall consti- tute a separate offense. • 2004 WL 1816509 (Appellate Brief) Appellee's b) In addition to other penalties, an adult oriented Second Supplemental Answering Brief (Jul. 01, business which operates without a valid license 2004)Original Image of this Document (PDF) shall constitute a public nuisance which may be • 2002 WL 32302158 (Appellate Brief) Appellee's abated in a manner provided by law. Supplemental Answering Brief (Aug. 12, SECTION 24. APPLICABILITY 2002)Original Image of this Document (PDF)
This ordinance shall apply to all persons engaging in • 00-16531 (Docket) (Aug. 17, 2000) the activities described herein, whether or not such END OF DOCUMENT activities were commenced prior to the effective date of this ordinance. Persons so engaged as of the effect- ive date of this ordinance shall be in full compliance with this ordinance, including receipt of any required license or permit, within one hundred eighty days after the effective date of this ordinance.
SECTION 25. SEVERABILITY
Each section and each provision or requirement of any section of this ordinance shall be deemed sever- able and the invalidity of any portion of this ordin- ance shall not affect the validity or enforceability of any other portion.
ADOPTED April 23, 1997
AMENDED July 12, 1997
AMENDED July 17, 1998
ADOPTED as Amended this 2nd day of Septem- ber, 1998.
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Briefs and Other Related Documents (Back to top)
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Const.Amend. 1.
Briefs and Other Related Documents [2] Constitutional Law 90(3) 92k90(3) Most Cited Cases United States Court of Appeals, An ordinance aimed at combating the secondary ef- Ninth Circuit. fects of a particular type of speech survives interme- WORLD WIDE VIDEO OF WASHINGTON, INC., diate scrutiny if it is designed to serve a substantial Plaintiff-Appellant, government interest, is narrowly tailored to serve that v. interest, and does not unreasonably limit alternative CITY OF SPOKANE, Defendant-Appellee. avenues of communication. U.S.C.A. Const.Amend. No. 02-35936. 1.
Argued and Submitted Jan. 7, 2004. [3] Constitutional Law 90.4(1) Filed May 27, 2004. 92k90.4(1) Most Cited Cases As Amended on Denial of Rehearing and Rehearing En Banc July 12, 2004. [3] Zoning and Planning 76 414k76 Most Cited Cases Background: Adult-oriented retail business brought Zoning ordinances prohibiting adult-oriented busi- § 1983 suit against city, challenging constitutionality nesses from operating near certain land use categories of zoning ordinance preventing their location in close and allowing one year for relocation were narrowly proximity to certain land use categories and reason- tailored to serve city's substantial interest in reducing ableness of amount of time allowed for relocation. the undesirable secondary effects of adult stores, and The United States District Court for the Eastern Dis- thus survived intermediate scrutiny under First trict of Washington, 227 F.Supp.2d 1143, Alan A. Amendment; ordinance provided adequate alternative McDonald, Senior District Judge, entered summary locations and thus did not substantially reduce speech judgment for city, and adult-oriented business ap- by forcing stores to close. U.S.C.A. Const.Amend. 1. pealed. [4] Constitutional Law 90.4(1) Holdings: The Court of Appeals, Tallman, Circuit 92k90.4(1) Most Cited Cases Judge, held that: (1) ordinance was subject to intermediate scrutiny; [4] Zoning and Planning 76 (2) ordinance was narrowly tailored to promote signi- 414k76 Most Cited Cases ficant government interest in reducing undesirable Evidence of pornographic litter and public lewdness, secondary effects of adult stores; and fact that these secondary effects were inexorably (3) ordinance was not facially overbroad; and intertwined with protected speech, standing alone, (4) amortization provision in ordinance requiring re- were sufficient to show that zoning ordinance that location within one year was constitutional. prohibited operation of adult-oriented businesses near Affirmed. certain land uses promoted substantial government interest in eliminating secondary effects of adult- West Headnotes oriented businesses. U.S.C.A. Const.Amend. 1.
[1] Constitutional Law 90.4(1) [5] Constitutional Law 90(3) 92k90.4(1) Most Cited Cases 92k90(3) Most Cited Cases Laws aimed at controlling the secondary effects of A law is narrowly tailored, for purposes of First adult businesses are deemed content neutral, thus Amendment intermediate scrutiny, if it promotes a meriting intermediate scrutiny in determining their substantial government interest that would be constitutionality under First Amendment. U.S.C.A. achieved less effectively absent the regulation.
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U.S.C.A. Const.Amend. 1. *1188 Gilbert H. Levy, Seattle, WA, on behalf of the plaintiff-appellant. [6] Constitutional Law 90.4(1) 92k90.4(1) Most Cited Cases Stephen A. Smith, Todd L. Nunn, Preston Gates & [6] Zoning and Planning 76 Ellis, LLP, Seattle, WA, on behalf of the defendant-ap- 414k76 Most Cited Cases pellee. Adult-oriented business's claim that citizen com- plaints were biased and unscientific was insufficient Appeal from the United States District Court for the to cast direct doubt on testimonial evidence of sec- Eastern District of Washington; Alan A. McDonald, ondary effects caused by proximity to adult-oriented District Judge, Presiding. D.C. No. CV-02- retail stores, including litter, harassment of female 00074-AAM. employees, vandalism, and decreased business, and Before GRABER, TALLMAN, and CLIFTON, Cir- thus to challenge conclusion that city's enactment of cuit Judges. ordinance prohibiting such stores near certain land uses was narrowly tailored to substantial government TALLMAN, Circuit Judge. interest in eliminating those effects. U.S.C.A. Const.Amend. 1. This appeal raises two questions. First, whether the City of Spokane's ordinances regulating the location [7] Constitutional Law 90.4(1) of adult-oriented retail businesses ("adult stores") are 92k90.4(1) Most Cited Cases constitutional. Second, whether an amortization peri- od is required in this context and, if so, whether a [7] Zoning and Planning 76 reasonable amount of time was allotted for World 414k76 Most Cited Cases Wide Video of Washington, Inc. ("World Wide"), to Zoning ordinance imposing restrictions on location of either relocate its stores or change the nature of its re- adult-oriented businesses was not unconstitutionally tail operations. Because the record reveals no genuine facially overbroad by reason of its definition of adult issue of material fact regarding either of these issues, retail establishment as one devoting "significant or we affirm the district court's summary judgment for substantial" portion its stock to adult-oriented mer- Spokane. chandise. U.S.C.A. Const.Amend. 1. I [8] Constitutional Law 90.4(1) In the late 1990s, city leaders in Spokane grew con- 92k90.4(1) Most Cited Cases cerned with the opening of several adult stores in res- [8] Zoning and Planning 76 idential areas. To develop a legislative response to 414k76 Most Cited Cases this situation, the City compiled information- Amortization provision in zoning ordinance prohibit- -specifically, studies from other municipalities, relev- ing adult retail stores near certain other uses, which ant court decisions, and police records--documenting required non-conforming adult-oriented businesses to the adverse secondary effects of adult stores. relocate within one year, was not violative of First On November 29, 2000, Spokane's Plan Commission Amendment because there were sufficient relocation held a public hearing to consider amending the Muni- sites in city, and thus adequate alternative avenues of cipal Code to combat these documented secondary communication. U.S.C.A. Const.Amend. 1. effects. At this hearing, the City Attorney's office [9] Zoning and Planning 321 presented the legislative record and gave the Com- 414k321 Most Cited Cases mission an overview of the effect of adult stores on Municipalities may, consistent with federal constitu- the community. Although a number of citizens testi- tion, require non-conforming uses to close, change fied in favor of amending the Code, World Wide their business, or relocate within a reasonable time presented no evidence, testimonial or otherwise, at period. this hearing.
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On December 13, 2000, after considering public lishment may not be located or maintained comments and the legislative record, the Plan Com- within seven hundred fifty feet, measured mission voted unanimously to recommend that the from the nearest building of the adult retail City Council amend the Code. Before the vote at this use establishment or of the adult entertain- meeting, two individuals testified against the pro- ment establishment to the nearest building of posed amendment. Once again, however, World any of the following pre-existing uses: Wide did not participate. a. public library, b. public playground or park, On January 29, 2001, the Spokane City Council c. public or private school and its grounds, heeded the Plan Commission's recommendation and from kindergarten to twelfth grade, unanimously passed Ordinance C-32778. [FN1] Un- d. nursery school, mini-day care center, or der Ordinance C-32778, adult stores are subject to day care center, Spokane's set-back requirements, which prevent e. church, convent, monastery, synagogue, *1189 them from opening in close proximity to cer- or other place of religious worship, tain land use categories. [FN2] Ordinance C-32778 f. another adult retail use establishment or an also amended the Code to provide adult stores with adult entertainment establishment, subject to an amortization period of one year either to relocate the provisions of this section. or change the nature of their operations. See SMC § 2. An adult retail use establishment or an 11.19.395. A procedure was included whereby the adult entertainment establishment may not owner of a business could seek an extension of this be located within seven hundred fifty feet of deadline. See id. any of the following zones: a. agricultural, FN1. The Code as amended by Ordinance b. country residential, C-32778 reads: c. residential suburban, A. An "adult retail use establishment" is an d. one-family residence, e. two-family resid- enclosed building, or any portion thereof ence, which, for money or any other form of con- f. multifamily residence (R3 and R4), sideration, devotes a significant or substan- g. residence-office. tial portion of stock in trade, to the sale, ex- SMC § 11.19.143(D). change, rental, loan, trade, transfer, or view- ing of "adult oriented merchandise". Subsequently, Spokane determined that it needed to B. Adult oriented merchandise means any establish more sites for the relocation of adult stores. goods, products, commodities, or other Following four Plan Commission meetings on the is- ware, including but not limited to, videos, sue, on March 18, 2002, Spokane enacted Ordinance CD Roms, DVDs, computer disks or other C-33001, which increased the number of land use storage devices, magazines, books, pamph- categories permitted to accommodate the operation of lets, posters, cards, periodicals or non- adult stores. clothing novelties which depict, describe or simulate specified anatomical area, as Because Ordinance C-32778 became effective on defined in Section 11.19.0355, or specified March 10, 2001, all non-conforming uses were re- sexual activities, as defined in Section quired to terminate by March 10, 2002. World Wide 11.19.0356. applied to Spokane's Planning Director for an exten- Spokane Mun.Code ("SMC") § sion of the amortization period and was granted an 11.19.03023. additional six months. World Wide appealed this de- cision to the city's Hearing Examiner, arguing that a FN2. Specifically, the Spokane Municipal six-month extension was insufficient. The Hearing Code provides: 1. An adult retail use estab- Examiner affirmed the extension, but held that it lishment [or] an adult entertainment estab- would run from the date of his May 15, 2002, de-
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cision. World Wide was therefore required to close or ties were available for relocation of adult change the nature of its businesses by November 15, stores; that 161 of the 326 were best suited 2002. [FN3] Although we were informed at oral ar- for commercial uses; and that 63 of the 161 gument that the configuration of World Wide's retail were actively listed for sale or lease. Apply- services has changed somewhat, the businesses re- ing the set-back requirements of the Ordin- main open in their original locations. ances, Spokane determined that 32 of these 63 sites were particularly well-suited to ac- FN3. World Wide appealed the Hearing Ex- commodate adult stores. aminer's ruling to Spokane County Superior Court under Washington's Land Use Petition (4) the declarations of several citizens detailing the Act, RCW 36.70C.005, et seq. secondary effects of the existing adult stores. [FN6] On February 27, 2002, World Wide filed a § 1983 civil rights action in the United States District Court FN6. Specifically, these declarants stated for the Eastern District of Washington alleging, inter that they had witnessed various criminal acts alia, that Ordinances C-32778 and C-33001 in and around World Wide's stores, includ- (hereinafter, "the Ordinances") violate the *1190 ing prostitution, drug transactions, public First Amendment. At the close of discovery, Spokane lewdness, harassment of citizens by World moved for summary judgment. In support of its mo- Wide's clientele, and pervasive litter, includ- tion, the City tendered ing used condoms, empty liquor bottles, and (1) more than 1,500 pages of legislative record re- video packaging featuring graphic depic- lated to the Ordinances, including studies from oth- tions of sexual acts. er municipalities concerning the adverse secondary effects associated with adult businesses, [FN4] po- In opposition to Spokane's motion for summary judg- lice reports, relevant court decisions, and evidence ment, World Wide offered submitted by Spokane residents; (1) the declaration of land use planner Bruce McLaughlin, who opined that the studies relied on FN4. Spokane relied on studies from New by Spokane provided no valid basis for the Ordin- York City (1994); Garden Grove, California ances because none dealt exclusively with second- (1991); a coalition of several municipalities ary effects produced by retail-only uses and con- in Minnesota (1989); St. Paul, Minnesota cluded that adult stores in Spokane neither contrib- (1987); Austin, Texas (1986); Indianapolis, uted to the depreciation of property values nor res- Indiana (1984); Amarillo, Texas (1977); and ulted in increased calls for police service; Los Angeles (1977). (2) police reports and call summaries intended to corroborate McLaughlin's conclusion; (2) the minutes of the Plan Commission and City (3) the report of a private investigator containing Council meetings concerning the Ordinances; interviews of citizens who claimed that there were (3) a report from a real estate appraiser stating that no problems related to the adult stores in their hundreds of parcels of land zoned for adult retail neighborhoods; [FN7] remained available; [FN5] and FN7. We note that World Wide's investigat- FN5. When Ordinance C-32778 went into or indicated in his deposition that he was in- effect, there were a total of seven affected structed not to include information in his re- adult stores, six of which were required to port that was unhelpful to his client's legal relocate. By the time Spokane moved for position. summary judgment, one affected business had already reopened at a new site. (4) the declaration of a real estate broker stating Spokane's appraiser found that 326 proper- that there were only 26 available properties and
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only one was a plausible relocation site for an adult meriting intermediate scrutiny. Under City of Renton store; [FN8] and v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), laws aimed at controlling FN8. Spokane tendered a supplemental de- the secondary effects of adult businesses are deemed claration from its appraiser with its summary content neutral. See id. at 48-49, 106 S.Ct. 925. judgment reply, asserting that World Wide's [FN9] broker ignored 92 qualifying parcels, which were sufficient to allow simultaneous opera- FN9. It merits noting that in the Supreme tion of 18 adult stores, and that, even accept- Court's most recent foray into the law of the ing the data contained in World Wide's First Amendment and secondary effects, broker's report, there were sufficient loca- City of Los Angeles v. Alameda Books, Inc., tions to operate 14 adult stores. 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d Moreover, although World Wide hired a 670 (2002), Justice Kennedy assailed this second land use expert, it declined to submit categorization as a "fiction," asserting that his opinion to the court. World Wide's "whether a statute is content neutral or con- second expert concluded that there were tent based is something that can be determ- more than enough possible relocation sites ined on the face of it; if the statute describes (i.e., 60) for the six stores that needed to speech by content then it is content based." move. Id. at 448, 122 S.Ct. 1728 (Kennedy, J., con- curring). Nevertheless, Justice Kennedy ulti- *1191 (5) evidence that two of World Wide's stores mately agreed that a "zoning restriction that were subject to long-term leases that their landlord is designed to decrease secondary effects was unwilling to dissolve. and not speech should be subject to interme- Additionally, World Wide suggested in its statement diate rather than strict scrutiny," reasoning of facts that the citizens who provided declarations in that "the zoning context provides a built-in support of Spokane's motion were motivated by their legitimate rationale, which rebuts the usual disagreement with the content of World Wide's presumption that content-based restrictions speech rather than by a desire to combat secondary are unconstitutional." Id. at 448-49, 122 effects. S.Ct. 1728; accord G.M. Enters., Inc. v. Town of St. Joseph, 350 F.3d 631, 637 (7th On September 11, 2002, the district court granted Cir.2003) ("In light of [Alameda Books ], we Spokane's motion for summary judgment. World need not decide whether the ordinances are Wide timely appealed. content based or content neutral, so long as II we first conclude that they target not 'the We review de novo the district court's grant of sum- activity, but ... its side effects,' and then ap- mary judgment. See Coszalter v. City of Salem, 320 ply intermediate scrutiny.' ") (citation omit- F.3d 968, 973 (9th Cir.2003). Viewing the evidence ted). in the light most favorable to World Wide, we must Here, the challenged Ordinances are explicitly inten- decide whether there are any genuine issues of mater- ded to combat the secondary effects of adult stores' ial fact and whether the district court correctly ap- speech, not to suppress the speech itself. The district plied the relevant substantive law. See id. court ruled that the purpose of the Ordinances is to A regulate the harmful secondary effects associated [1] To determine whether Spokane's Ordinances viol- with sexually oriented businesses. World Wide Video ate the First Amendment, we must first answer the of Washington, Inc. v. City of Spokane, 227 threshold question of whether they are content based, F.Supp.2d 1143, 1150-51 (E.D.Wash.2002). The thus meriting strict scrutiny, or content neutral, thus summary judgment record permits no other conclu- sion as to the purpose of the Ordinances. See e.g., Or-
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dinance C-33001, Preamble/Findings, (4)(k) ("It is Renton, 475 U.S. at 50, 106 S.Ct. 925. not the intent of the proposed zoning provisions to suppress any speech activities protected by the First We agreed and held in favor of the theater owner, but Amendment ..., but to propose content neutral legisla- the Supreme Court reversed. Noting that "a city's in- tion which addresses the negative secondary impacts terest in attempting to preserve the quality of urban of adult retail use and entertainment establishments life is one that must be accorded high respect," the [.]"). Accordingly, we apply intermediate *1192 scru- Court concluded that we had imposed "an unneces- tiny. See Renton, 475 U.S. at 49, 106 S.Ct. 925. sarily rigid burden of proof." Id. (internal quotation marks omitted). The Court held that "[t]he First B Amendment does not require a city, before enacting [2] An ordinance aimed at combating the secondary such an ordinance, to conduct new studies or produce effects of a particular type of speech survives inter- evidence independent of that already generated by mediate scrutiny "if it is designed to serve a substan- other cities, so long as whatever evidence the city re- tial government interest, is narrowly tailored to serve lies upon is reasonably believed to be relevant to the that interest, and does not unreasonably limit alternat- problem the city addresses." Id. at 51-52, 106 S.Ct. ive avenues of communication." Center for Fair Pub. 925. Policy v. Maricopa County, 336 F.3d 1153, 1166 (9th Cir.2003) (citing Renton, 475 U.S. at 50, 106 S.Ct. 2 925 and Colacurcio v. City of Kent, 163 F.3d 545, Like Renton, Alameda Books originated in this cir- 551 (9th Cir.1998)), cert. denied, 124 S.Ct. 1879 cuit. In 1977, the City of Los Angeles conducted a (2004). World Wide does not appeal the district study to assess the secondary effects of adult land court's determination that the Ordinances leave open uses. See Alameda Books, 535 U.S. at 430, 122 S.Ct. adequate alternative avenues of communication. The 1728. Because that study discovered increased crime issue before us is thus limited to whether the Ordin- in areas with high concentrations of adult businesses, ances are narrowly tailored to serve a substantial gov- Los Angeles enacted an ordinance regulating their ernment interest. locations. See id.
In Alameda Books, the Supreme Court "clarif[ied] the It soon came to light, however, that there was a loop- [Renton ] standard for determining whether an hole in the law: multiple adult businesses could con- [adult-use] ordinance serves a substantial government gregate in a single building. See id. at 431, 122 S.Ct. interest." 535 U.S. at 433, 122 S.Ct. 1728 (plurality 1728. Accordingly, Los Angeles amended its ordin- opinion). Thus, the proper starting point for evaluat- ance to prohibit more than one adult business from ing World Wide's appeal is close consideration of operating under the same roof. See id. Two book- Renton and Alameda Books. Our analysis is also in- stores sued, alleging that the ordinance violated the formed by Maricopa County, this court's sole inter- First Amendment. See id. at 432, 122 S.Ct. 1728. pretation and application of the Renton /Alameda The district court granted summary judgment in favor Books standard to date. of the stores. See id. at 433, 122 S.Ct. 1728. We af- 1 firmed, concluding that Los Angeles "failed to The challenged ordinance in Renton prohibited adult present *1193 evidence upon which it could reason- movie theaters from locating within 1,000 feet of ably rely to demonstrate that its regulation of mul- various zones, such as those intended for schools and tiple-use establishments [was] designed to serve the churches. An adult theater owner sued, arguing, inter city's substantial interest in reducing crime." Id. alia, that because the City of Renton improperly re- (internal quotation marks omitted). lied on another city's experiences with the secondary In the Supreme Court, Alameda Books produced four effects of adult theaters rather than undertaking its opinions: a plurality opinion by Justice O'Connor own study, the city had failed to establish that its or- (joined by the Chief Justice, Justice Scalia, and dinance served a substantial government interest.
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Justice Thomas), a brief concurring statement by The municipality's evidence must fairly support the Justice Scalia, a concurrence in the judgment by municipality's rationale for its ordinance. If Justice Kennedy, and a dissent by Justice Souter plaintiffs fail to cast direct doubt on this rationale, (joined by Justices Stevens and Ginsburg and joined either by demonstrating that the municipality's in part by Justice Breyer). A five justice majority--the evidence does not support its rationale or by fur- plurality plus Justice Kennedy--reversed our de- nishing evidence that disputes the municipality's cision. factual findings, the municipality meets the stand- ard set forth in Renton. If plaintiffs succeed in cast- Given the fractured nature of the Court's disposition, ing doubt on a municipality's rationale in either it is difficult to glean a precise holding from Alameda manner, the burden shifts back to the municipality Books. However, under Marks v. United States, 430 to supplement the record with evidence renewing U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), support for a theory that justifies its ordinance. since Justice Kennedy's concurrence was the narrow- Id. at 438-39, 122 S.Ct. 1728 (plurality opinion). An- est opinion joining the Court's judgment, it controls. nouncement of this burden shifting approach fulfilled See Maricopa County, 336 F.3d at 1161; see also Fly the Alameda Books Court's stated intention in grant- Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, ing certiorari: it "clarif[ied] the standard for determin- 1310 n. 19 (11th Cir.2003); Ben's Bar, Inc. v. Vill. of ing whether an ordinance serves a substantial govern- Somerset, 316 F.3d 702, 722 (7th Cir.2003). Thus, ment interest." Id. at 433, 122 S.Ct. 1728. we are bound by the plurality opinion, but only inso- far as its conclusions do not expand beyond Justice At its heart, the limiting principle that Justice Kennedy's concurrence. Kennedy's concurrence imposes on the plurality opin- ion concerns the importance of determining and eval- All five Justices in the Alameda Books majority af- uating a *1194 city's "rationale" behind a particular firmed Renton's core principle that local governments ordinance. While Justice Kennedy did not dispute the are not required to conduct their own studies in order plurality's burden-shifting gloss on Renton, he to justify an ordinance designed to combat the sec- stressed that a city's rationale for passing an ordin- ondary effects of adult businesses. See Alameda ance aimed at controlling the secondary effects of Books, 535 U.S. at 438, 122 S.Ct. 1728 (plurality adult stores "cannot be that when [the ordinance] re- opinion); id. at 451, 122 S.Ct. 1728 (Kennedy, J., quires businesses to disperse (or to concentrate), it concurring). Further, the majority of the Court will force the closure of a number of those busi- stressed the paramount role of local experimentation nesses, thereby reducing the quantity of protected in developing legislative responses to secondary ef- speech." Maricopa County, 336 F.3d at 1163. Justice fects, given local governments' superior understand- Kennedy thus concurred with the Alameda Books ing of their own problems. See id. at 440, 122 S.Ct. plurality with the following cautionary caveat: "It is 1728 (plurality opinion) ("[W]e must acknowledge no trick to reduce secondary effects by reducing that the Los Angeles City Council is in a better posi- speech or its audience; but a city may not attack sec- tion than the Judiciary to gather and evaluate data on ondary effects indirectly by attacking speech." 535 local problems."); id. at 451-52, 122 S.Ct. 1728 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., concur- (Kennedy, J., concurring) ("The Los Angeles City ring). A secondary-effects ordinance must be de- Council knows the streets of Los Angeles better than signed to leave "the quantity of speech ... substan- we do. It is entitled to rely on that knowledge; and if tially undiminished, and [the] total secondary effects its inferences appear reasonable, we should not say ... significantly reduced." Id. at 451, 122 S.Ct. 1728. there is no basis for its conclusion.") (citations omit- ted). 3 Our recent decision in Maricopa County differs Most importantly, Justice Kennedy did not disagree slightly from the case before us in that it concerned with the key innovation announced by the Alameda the constitutionality of a "time" rather than a "place" Books plurality. To wit: restriction on adult businesses. See 336 F.3d at 1159.
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In Maricopa County, operators of a variety of adult argued that "the evidence before the Arizona legis- businesses, including "sellers of sexually-related lature consisted of 'irrelevant anecdotes' and 'isolated' magazines and paraphernalia," id. at 1158, challenged incidents, and that testimonial evidence is not 'real' an Arizona statute that prohibited them from operat- evidence." Id. Rejecting this contention as explicitly ing in the early morning hours. The district court up- foreclosed by Alameda Books, we concluded that the held the statute and the businesses appealed. Apply- businesses had "failed to cast doubt on the state's ing Alameda Books--which we described as "reaf- *1195 theory, or on the evidence the state relied on in firm[ing] the Renton framework," id. at 1159--a di- support of that theory," and affirmed the district vided panel of this court affirmed. [FN10] court's decision upholding the statute. Id.
FN10. In dissent, Judge Canby opined that C Arizona's statute could not survive Justice [3] Like the statute challenged in Maricopa County, Kennedy's requirement that the quantity of Spokane's Ordinances satisfy the Renton standard as speech remain undiminished because it re- clarified in Alameda Books. We hold that the Ordin- quired adult businesses to close down during ances are narrowly tailored to serve Spokane's sub- certain parts of the day--i.e., it stopped stantial interest in reducing the undesirable secondary speech--unlike a "dispersal" regulation, effects of adult stores. which merely moves speech. Maricopa County, 336 F.3d at 1172 (Canby, J., dis- 1 senting). Spokane's Ordinances are dispersal Turning first to the substantial interest issue, per ordinances; consequently, Judge Canby's Justice Kennedy's Alameda Books concurrence, the concern does not arise here. initial question is "how speech will fare" under the Ordinances. 535 U.S. at 450, 122 S.Ct. 1728 As in the instant case, the legislative record in Mari- (Kennedy, J., concurring); see also R.V.S., L.L.C. v. copa County included both documentary and testimo- City of Rockford, 361 F.3d 402, 408 (7th Cir.2004) nial evidence. See id. at 1157. For example, the Ari- (noting that under Justice Kennedy's Alameda Books zona legislature heard testimony describing problems concurrence "[i]t is essential ... to consider the impact with pornographic litter and prostitution related to the or effect that the ordinance will have on speech"). operation of adult businesses adjacent to a residential Conceptually, this question dovetails with the re- area. Id. at 1157-58. The Maricopa County legislative quirement that an ordinance must leave open ad- record also included letters discussing reports detail- equate alternative avenues of communication. Again, ing similar problems in Denver and Minnesota. Id. at World Wide does not appeal the district court's con- 1158. We concluded that the state provided a suffi- clusion that the Ordinances left open sufficient relo- cient basis for the challenged statute, noting that the cation sites. Given that each of the six remaining af- evidence was "hardly overwhelming, but it does not fected stores has the opportunity to relocate, it is have to be." Id. at 1168. Because the Arizona legis- likely that the Ordinances will reduce secondary ef- lature relied on evidence "reasonably believed to be fects--by moving the stores from sensitive areas- relevant" to the targeted problem, we determined that -without substantially reducing speech by forcing the statute was presumptively constitutional. Id. stores to close. See Alameda Books, 535 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., concurring). Having made this determination, we continued: "Un- der Alameda Books, the burden now shifts to [the The next step is to determine whether the Ordinances businesses] to cast direct doubt on [the state's] ra- survive the burden-shifting regime announced by the tionale, either by demonstrating that the [state's] evid- Alameda Books plurality. They do. World Wide does ence does not support its rationale or by furnishing not contend that Spokane failed to satisfy its initial evidence that disputes the[state's] factual findings." burden of producing evidence that "fairly supports" Id. (internal quotation marks omitted; first alteration the Ordinances. Rather, World Wide argues that added). Essentially, the Maricopa County businesses when it provided contrary evidence the burden shif-
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ted back to Spokane, and the City failed to supple- would have any harmful secondary effects ment the record. on the community," id. at 1333 (emphasis added), we affirmed an injunction against However, in order to shift the burden back to enforcement of the ordinance. Although Spokane, World Wide was required to succeed in Tollis predates Alameda Books, the de- "cast[ing] direct doubt" on the rationale behind the cisions are consistent; the principle remains Ordinances, either by showing that the City's evid- that a local government must reasonably rely ence does not support it or by supplying its own con- on at least some evidence. Here, Spokane trary "actual and convincing evidence." Id. at 438-39, clearly satisfied this requirement. 122 S.Ct. 1728 (plurality opinion) (emphasis added). Like the businesses in Maricopa County, World The relevant question is "whether the municipality Wide failed to satisfy this requirement. World Wide's can demonstrate a connection between the speech arguments and evidence against the Ordinances were regulated by the ordinance and the secondary effects insufficient to trigger the burden shifting contem- that motivated the adoption of the ordinance." plated in Alameda Books. Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728 (plurality opinion). Here, the protected speech and [4] We reach this conclusion primarily because the secondary effects described in the citizen testi- World Wide did not effectively controvert much of mony are inexorably intertwined: the sexual images Spokane's evidence through McLaughlin's report or in the magazines and on the packaging of the videos otherwise. In holding that the Ordinances promoted a sold by adult stores may be protected, but if the substantial governmental interest, the district court stores' products are consistently discarded on public stressed that Spokane only needed " 'some' evidence ground, municipal regulation may be--and, in this to support its Ordinances," and correctly concluded case, is--justified. that the "elimination of pornographic litter, by itself, represents a substantial governmental interest, espe- Our conclusion concerning the nature of the cially as concerns protection of minors." World Wide post-Alameda Books evidentiary burden is in line Video, 227 F.Supp.2d at 1157-58. The citizen testi- with the weight of federal authority. For example, in mony concerning pornographic litter and public SOB, Inc. v. County of Benton, 317 F.3d 856 (8th lewdness, standing alone, was sufficient to satisfy the Cir.), cert. denied, 540 U.S. 820, 124 S.Ct. 104, 157 "very little" evidence standard of Alameda Books, L.Ed.2d 38 (2003), the Eighth Circuit noted that the 535 U.S. at 451, 122 S.Ct. 1728 (Kennedy, J., con- adult business's evidence in opposition to Benton curring) (citing Renton, 475 U.S. at 51-52, 106 S.Ct. County's zoning regulations 925). Accord Maricopa County, 336 F.3d at 1168; cf. addressed only two adverse secondary effects, Stringfellow's of N.Y., Ltd. v. City of New York, 91 property values and crime in the vicinity of an N.Y.2d 382, 400, 671 N.Y.S.2d 406, 694 N.E.2d 407, adult entertainment establishment.... [The chal- 417 (N.Y.1998) ("[A]necdotal evidence and reported lenged ordinance], on the other hand, may address experience can be as telling as statistical *1196 data other adverse secondary effects, such as the likeli- and can serve as a legitimate basis for finding negat- hood that an establishment whose dancers and cus- ive secondary effects...."). [FN11] tomers routinely violate long-established standards of public decency will foster illegal activity such as FN11. In Tollis Inc. v. San Bernardino drug use, prostitution, tax evasion, and fraud. County, 827 F.2d 1329 (9th Cir.1987), San Id. at 863. Just so here. Granted, the evidence Bernardino County determined that a single tendered by World Wide in opposition to Spokane's showing of an adult movie was sufficient to motion for summary judgment purported to contra- subject a theater to regulation under an dict some of the City's secondary effects evidence. adult-use zoning ordinance. Id. at 1331. Be- Again, however, World Wide failed to present an ef- cause the County "presented no evidence fective rebuttal to an entire category of evidence: the that a single showing of an adult movie public testimony. World Wide attempted to counter
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the citizens' stories by charging bias. However, this site viewing. tactic is insufficient to defeat summary judgment. See Nat'l Union Fire Ins. Co. v. Argonaut Ins. Co., 701 FN12. The Fifth Circuit recently clarified its F.2d 95, 97 (9th Cir.1983). This failure to cast doubt Encore Videos opinion, stating that "the or- on Spokane's justification for the Ordinances dooms dinance at issue was found not to be nar- World Wide's challenge. rowly tailored because of both its failure to make an on-site/off-site distinction and its 2 low 20% inventory requirement [i.e., the [5] We also conclude that the Ordinances are nar- fact that it covered all stores with at least rowly tailored. A law is narrowly tailored if it "pro- 20% 'adult' merchandise]." Encore Videos, motes a substantial government interest that would be Inc. v. City of San Antonio, 352 F.3d 938, achieved less effectively absent the regulation." 939 (5th Cir.2003) (emphasis added). *1197 United States v. Albertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d 536 (1985); accord Ward [6] Notwithstanding its proffer, World Wide's reli- v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. ance on Encore Videos is misplaced. In Encore 2746, 105 L.Ed.2d 661 (1989). Here, as in Maricopa Videos, San Antonio apparently relied only on other County, it is self-evident that Spokane's asserted in- cities' studies to justify its ordinance. See id. at 295. terest would be achieved less effectively absent the Here, Spokane relied on a wide variety of evidence, Ordinances. See 336 F.3d at 1169. including studies, police records, and citizen testi- mony. Further, in this case we can assume, but need The crux of World Wide's argument is that, because not decide, that the distinction between retail-only Spokane's studies do not deal exclusively with retail- stores and stores with preview booths is constitution- only stores, the City impermissibly relied on "shoddy ally relevant. The Ordinances still survive World data[and] reasoning" to justify the Ordinances. Wide's challenge because much of the citizen testi- Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728 mony concerned retail-only stores. To take just one (plurality opinion). World Wide relies principally on example, a pedodontist working in a building less Encore Videos, Inc. v. City of San Antonio, 330 F.3d than a block away from a retail-only store com- 288 (5th Cir.) (per curiam), cert. denied, 540 U.S. plained of pornographic litter, harassment of female 982, 124 S.Ct. 466, 157 L.Ed.2d 372 (2003), to sup- employees, vandalism, and decreased business, all port its argument. The Encore Videos court, noting resulting from his proximity to the retail-only store. that "[a] time, place, and manner regulation meets the As Maricopa County teaches, World Wide's claim narrow tailoring standard if it 'targets and eliminates that citizen complaints such as these are biased and no more than the exact source of the evil it seeks to unscientific is insufficient to cast direct doubt on the remedy,' " id. at 293 (quoting Frisby v. Schultz, 487 Spokane's testimonial evidence. Maricopa County, U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 336 F.3d at 1168 (rejecting the plaintiffs argument (1988)), found San Antonio's re-zoning of adult "that testimonial evidence is not 'real' evidence"). stores unconstitutional because the studies on which the city relied "either entirely exclude[d] establish- Among the secondary effects that Spokane sought to ments that provide only take-home videos and books curb by enacting the Ordinances are the "economic ... or include[d] them but [did] not differentiate the and aesthetic impacts upon neighboring properties data collected from such businesses from evidence and the community as a whole." Ordinance C-33001, collected from enterprises that provide on-site adult pmbl. at 3. Through testimonial evidence, Spokane entertainment," id. at 294-95. [FN12] Hoping to re- has shown that retail-only stores generate these sec- peat Encore Videos' success, World Wide presented ondary effects and therefore that its interests in enact- the district court with an extensive study concluding ing *1198 the Ordinances "would be achieved less ef- that problems with increased crime rates and de- fectively absent the regulation." Albertini, 472 U.S. at creased property value were limited to the neighbor- 689, 105 S.Ct. 2897. World Wide has offered no hood around a store that has preview booths for on- evidence that meaningfully challenges that conclu-
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sion. We thus conclude that the Ordinances are nar- by failing to present it to the district court. rowly tailored. See United States v. Flores-Payon, 942 F.2d 556, 558 (9th Cir.1991). This is not a purely D legal issue. Had World Wide raised it below, In sum, Alameda Books "does not affect [a municip- Spokane could have presented evidence in ality's] ability to rely on secondary effects studies and support of its position that the definition is certainly does not mandate a trial in every case where sufficiently precise. Cf. id. (noting that an a municipality does so." Bigg Wolf Disc. Video Movie argument not presented to the district court Sales, Inc. v. Montgomery County, 256 F.Supp.2d can still be raised on appeal under certain 385, 393-94 (D.Md.2003). The evidence relied on by limited circumstances, including when "the Spokane "is both reasonable and relevant," Maricopa issue presented is purely one of law and the County, 336 F.3d at 1168, and the City's regulatory opposing party will suffer no prejudice as a regime "is likely to cause a significant decrease in result of the failure to raise the issue in the secondary effects" at the cost of "a trivial decrease in trial court") (internal quotation marks omit- the quantity of speech," Alameda Books, 535 U.S. at ted). 445, 122 S.Ct. 1728 (Kennedy, J., concurring). Therefore, we hold that Spokane's reliance on this Spokane defines an "adult retail establishment" as evidence was proper and that the Ordinances are nar- an enclosed building, or any portion thereof which, rowly tailored to address the City's legitimate con- for money or any other form of consideration, de- cerns. votes a significant or substantial portion of its stock in trade, to the sale, exchange, rental, loan, trade, III transfer, or viewing of "adult oriented merchand- [7] We must next decide whether the amended Code- ise". -specifically, the language added by Ordinance C- SMC § 11.19.03023(A). World Wide claims that this 32778--is overbroad. [FN13] Because "the First definition is unconstitutional on its face. We disagree. Amendment needs breathing space ... [,] statutes at- tempting to restrict or burden the exercise of First Cases directly addressing the phrase "significant or Amendment rights must be narrowly drawn and rep- substantial" in this context have upheld its validity. resent a considered legislative judgment that a partic- See, e.g., Young v. Am. Mini Theatres, Inc., 427 U.S. ular mode of expression has to give way to other 50, 53 n. 5, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); compelling needs of society." Broadrick v. Ok- Alameda Books, 535 U.S. at 431, 122 S.Ct. 1728. lahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 37 Moreover, this phrase is readily *1199 susceptible to L.Ed.2d 830 (1973). Nonetheless, the Supreme Court a narrowing construction. "[L]anguage similar to the has "repeatedly emphasized that where a statute regu- 'significant or substantial' language used in this ordin- lates expressive conduct, the scope of the statute does ance has been interpreted previously by state courts not render it unconstitutional unless its overbreadth is in a sufficiently narrow manner to avoid constitution- not only real, but substantial as well, judged in rela- al problems." Z.J. Gifts D-4, L.L.C. v. City of tion to the statute's plainly legitimate sweep." Os- Littleton, 311 F.3d 1220, 1229 (10th Cir.2002) borne v. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, (collecting cases), cert. granted in part, 540 U.S. 109 L.Ed.2d 98 (1990) (internal quotation marks 944, 124 S.Ct. 383, 157 L.Ed.2d 274 (2003). We omitted); see also United States v. Adams, 343 F.3d agree and hold that the inclusion of this phrase in Or- 1024, 1034 (9th Cir.2003), cert. denied, --- U.S. ----, dinance C-32778 does not render it unconstitutionally 124 S.Ct. 2871, 159 L.Ed.2d 779 (2004) (No. overbroad. 03-9072). World Wide also takes issue with Spokane's "any FN13. World Wide waived its claim that Or- portion thereof" wording, arguing that as a result of dinance C-32778's definition of "adult retail its inclusion the ordinance covers any store with a establishment" is unconstitutionally vague "portion" that is "significantly" or "substantially"
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comprised of adult materials. For example, under six-month extension, and received an extra two World Wide's interpretation, a store with a rack of months via administrative grace, it claims that we postcards comprising 1% of its stock, 5% of which should remand for trial because there remains a ques- qualifies as adult material, would fall under the pur- tion of fact whether its hardship outweighs the bene- view of Ordinance C-32778. We read this ordinance fit to the public to be gained from termination of the differently. The "any portion thereof" clause plainly non-conforming use. See Ebel v. City of Corona, 767 means that the ordinance is intended to cover stores F.2d 635, 639 (9th Cir.1985) (per curiam) (adopting that occupy only a portion of an enclosed the balancing test set out in Northend Cinema, Inc. v. building--e.g., one store in a shopping mall--as dis- City of Seattle, 585 P.2d 1153, 1159-60 tinct from the entire building. This language has (Wash.1978)). Given the length of its leases and vari- nothing to do with the determination whether adult ous other alleged impediments to relocation-- e.g., re- material constitutes a "significant or substantial" por- strictive covenants, the unwillingness of landlords to tion of a store's stock. [FN14] rent or sell to an adult store, and the prohibitive cost- -World Wide claims that it can prevail under Ebel's FN14. World Wide relies on Executive Arts balancing test. Studio, Inc. v. City of Grand Rapids, 227 F.Supp.2d 731 (W.D.Mich.2002), where the [9] We are not convinced. Nothing in the Constitu- court found overbroad an ordinance that en- tion forbids municipalities from requiring non- compassed stores with a "section or seg- conforming uses to close, change their business, or ment" of sexually-explicit magazines. See relocate *1200 within a reasonable time period. Here, id. at 748. However, that holding was based as in Baby Tam & Co. v. City of Las Vegas, 247 F.3d on a state court's refusal to adopt a limiting 1003 (9th Cir.2001), World Wide "furnishes no au- construction. See id. No Washington state thority for the proposition that a zoning ordinance court has so construed Ordinance C-32778. may not prohibit a use in existence before its enact- ment," id. at 1006. As a general matter, an amortiza- Accordingly, mindful that the facial overbreadth doc- tion period is insufficient only if it puts a business in trine is "strong medicine" that should be employed an impossible position due to a shortage of relocation "sparingly and only as a last resort," Broadrick, 413 sites. This issue is conceptually indistinguishable U.S. at 613, 93 S.Ct. 2908, we affirm the district from the First Amendment requirement of alternative court's rejection of World Wide's claim that Ordin- avenues of communication. See Jake's, Ltd. v. City of ance C-32778 is overbroad. Coates, 284 F.3d 884, 889 (8th Cir.) (holding that ap- plication of an amortization provision is constitution- IV al as long as it complies with Renton ), cert. denied, [8] The final issue before us is the adequacy of the 537 U.S. 948, 123 S.Ct. 413, 154 L.Ed.2d 292 amortization provision. This provision reads, in per- (2002). Because the district court held that there are tinent part: "Any adult retail use establishment loc- sufficient relocation sites in Spokane and World ated within the City of Spokane on the date this pro- Wide does not appeal that factual determination, we vision becomes effective, which is made a noncon- hold that the amortization provision is not unconstitu- forming use by this provision, shall be terminated tional. within twelve (12) months of the date this provision becomes effective." SMC § 11.19.395. The Ordin- Finally, in attempting to extend its right to operate at ance allows for the extension of a business's termina- its present locations, World Wide was afforded--and tion date "upon the approval of a written application has availed itself of--the full panoply of due process filed with the Planning Director no later than [one] rights. World Wide requested an extension and re- (1) month prior to the end of such twelve (12) month ceived eight months; it appealed this decision to amortization period." Id. Spokane's Hearing Examiner, claiming the extension was too short, and lost. World Wide then filed a land Although World Wide applied for and was granted a use action in Spokane County Superior Court chal-
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lenging the denial of its amortization appeal. We con- clude that World Wide received all the process it was due.
V As conceded by World Wide, municipalities are al- lowed to "keep the pig out of the parlor" by devising regulations that target the adverse secondary effects of sexually-oriented adult businesses. This is pre- cisely what Spokane did when it enacted the Ordin- ances. The district court properly entered summary judgment upholding them.
AFFIRMED.
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Briefs and Other Related Documents (Back to top)
• 2003 WL 22593818 (Appellate Brief) Appellant's Reply Brief (Apr. 03, 2003)Original Image of this Document (PDF)
• 2003 WL 22593817 (Appellate Brief) Brief of Ap- pellee (Mar. 20, 2003)Original Image of this Docu- ment (PDF)
• 2003 WL 22593816 (Appellate Brief) Appellant's Opening Brief (Feb. 04, 2003)Original Image of this Document with Appendix (PDF)
• 02-35936 (Docket) (Oct. 09, 2002)
END OF DOCUMENT
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corporation, Defendants-Appellees. Nos. 00-16858, 00-16905. Briefs and Other Related Documents Argued and Submitted Feb. 11, 2003. United States Court of Appeals, Filed July 28, 2003. Ninth Circuit. CENTER FOR FAIR PUBLIC POLICY, an Arizona Owners and operators of sexually-oriented businesses non-profit corporation; Dream brought civil rights action against city, county, and Palace, a dba of Liberty Entertainment Group, state, asserting that state statute prohibiting sexually- L.L.C., an Arizona Limited oriented businesses from operating during late night Liability Company; Castle Superstore Corporation, hours violated the First Amendment, and seeking de- an Arizona corporation, claratory and injunctive relief. The United States Dis- Plaintiffs-Appellants, trict Court for the District of Arizona, Earl H. Carroll, and J., entered judgment for defendants, and plaintiffs ap- L.J. Concepts, Inc., Plaintiff, pealed. The Court of Appeals, O'Scannlain, Circuit v. Judge, held that the statute did not violate the First MARICOPA COUNTY, ARIZONA; Richard M. Amendment. Romley, in his official capacity as Maricopa County Attorney; City of Phoenix, a muni- Affirmed. cipal corporation, Canby, Circuit Judge, filed dissenting opinion. Defendants-Appellees, State of Arizona, Intervenor-Appellee, West Headnotes and City of Glendale, Defendant. [1] Constitutional Law 90.4(1) LJ Concepts, Inc., an Arizona corporation; Stummer 92k90.4(1) Most Cited Cases LLC, Inc., an Arizona State statute prohibiting sexually-oriented businesses corporation; Mid-City Enterprises, Inc., an Arizona from operating during late night hours and until noon corporation; B.C. Books, on Sundays would be properly analyzed under the Inc., a Delaware corporation; Michael J. Ahearn, First Amendment as a time, place, and manner regu- Plaintiffs-Appellants, lation. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. State of Arizona, Intervenor-Appellee, and [2] Constitutional Law 90.4(1) Center for Fair Public Policy, an Arizona non-profit 92k90.4(1) Most Cited Cases corporation; Dream [2] Public Amusement and Entertainment Palace, an Arizona Limited Liability Company dba 9(1) Liberty Entertainment Group, 315Tk9(1) Most Cited Cases L.L.C.; Castle Superstore Corporation, an Arizona (Formerly 376k2 Theaters and Shows) corporation; Daniel Ray For purpose of First Amendment analysis, state stat- Golladay, Plaintiffs, ute prohibiting sexually-oriented businesses from op- v. erating during late night hours and until noon on City of Phoenix, a municipal corporation; Maricopa Sundays was content based rather than content neut- County, Arizona; Richard ral. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. Romley, in his official capacity as Maricopa County Attorney; City of [3] Constitutional Law 90(3) Phoenix, a municipal corporation; City of Glendale, 92k90(3) Most Cited Cases an Arizona municipal
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Whether a statute challenged as a violation of the establishments protected by the First Amendment and First Amendment free speech clause is content neut- businesses that had no such protection, such as escort ral or content based is something that can be determ- agencies, the regulation was passed as an amendment ined on the face of it; if the statute describes speech to a broader bill authorizing counties to develop com- by content then it is content based. U.S.C.A. prehensive land-use regulations, and majority of Const.Amend. 1. comments made by legislators when the bill was un- der consideration focused on the secondary effects [4] Constitutional Law 90.4(1) associated with sexually-oriented businesses. 92k90.4(1) Most Cited Cases U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. A regulation of sexually-oriented businesses, even though content based, is subject to intermediate scru- [7] Constitutional Law 90.4(1) tiny under the First Amendment free speech clause if 92k90.4(1) Most Cited Cases the regulation is designed to combat the secondary The "predominant purpose" inquiry, in regard to a effects of such establishments on the surrounding free speech challenge to a regulation of sexually-ori- community, namely crime rates, property values, and ented businesses that is designed to combat the sec- the quality of the city's neighborhoods. U.S.C.A. ondary effects of such establishments on the sur- Const.Amend. 1. rounding community, is separate and independent from the inquiry into whether the regulation is de- [5] Constitutional Law 90.4(1) signed to serve a substantial government interest; 92k90.4(1) Most Cited Cases only with respect to the latter inquiry must courts ex- amine evidence concerning regulated speech and sec- [5] Public Amusement and Entertainment ondary effects. U.S.C.A. Const.Amend. 1. 9(1) 315Tk9(1) Most Cited Cases [8] Constitutional Law 90.4(1) (Formerly 376k2 Theaters and Shows) 92k90.4(1) Most Cited Cases The Court of Appeals, in considering free speech Under intermediate scrutiny under First Amendment challenge to state statute prohibiting sexually-ori- free speech clause, state statute, prohibiting sexually- ented businesses from operating during late night oriented businesses from operating during late night hours and until noon on Sundays, would look to the hours and until noon on Sundays, predominant pur- full record to determine whether the purpose of the pose of which was to ameliorate the secondary ef- statute was to ameliorate the secondary effects of fects associated with the regulated establishments, sexually-oriented businesses on the community, and would be upheld if it was designed to serve a sub- in so doing, would rely on all objective indicators of stantial government interest, was narrowly tailored to intent, including the face of the statute, the effect of serve that interest, and did not unreasonably limit al- the statute, comparison to prior law, facts surround- ternative avenues of communication. U.S.C.A. ing enactment, the stated purpose, and the record of Const.Amend. 1; A.R.S. § 13-1422. proceedings. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. [9] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases [6] Constitutional Law 90.4(1) For purpose of analysis under the First Amendment 92k90.4(1) Most Cited Cases free speech clause, a state's interest in curbing the Predominant purpose in enacting state statute prohib- secondary effects associated with adult entertainment iting sexually-oriented businesses from operating establishments is substantial. U.S.C.A. Const.Amend. during late night hours and until noon on Sundays 1. was to ameliorate the secondary effects associated [10] Constitutional Law 90.4(1) with the regulated establishments, and thus, interme- 92k90.4(1) Most Cited Cases diate scrutiny applied under the First Amendment free speech clause, where the statute regulated both [10] Public Amusement and Entertainment
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9(1) (Formerly 376k2 Theaters and Shows) 315Tk9(1) Most Cited Cases State was not required to come forward with empiric- (Formerly 376k2 Theaters and Shows) al data in support of its rationale for state statute, Arizona legislature, in enacting statute prohibiting challenged under the First Amendment free speech sexually-oriented businesses from operating during clause, prohibiting sexually-oriented businesses from late night hours and until noon on Sundays, relied on operating during late night hours and until noon on evidence reasonably believed to be relevant in Sundays, of reducing the secondary effects associated demonstrating a connection between the protected with late night operations of sexually-oriented busi- speech and its stated rationale of reducing the sec- nesses. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422. ondary effects associated with late night operations of sexually-oriented businesses, as required under inter- [14] Constitutional Law 90.4(1) mediate scrutiny under First Amendment free speech 92k90.4(1) Most Cited Cases clause, where the legislature held public hearings at [14] Public Amusement and Entertainment which lawmakers heard citizen testimony concerning 9(1) the late night operation of sexually-oriented busi- 315Tk9(1) Most Cited Cases nesses, and were briefed on several studies docu- (Formerly 376k2 Theaters and Shows) menting secondary effects, and two of those studies State statute prohibiting sexually-oriented businesses were specific to late night operations. U.S.C.A. from operating during late night hours and until noon Const.Amend. 1; A.R.S. § 13-1422. on Sundays was narrowly tailored, as required under [11] Civil Rights 1406 First Amendment free speech clause intermediate 78k1406 Most Cited Cases scrutiny analysis, in that the government's asserted (Formerly 78k240(1)) interest in the amelioration of secondary effects asso- Once state met its burden, under First Amendment in- ciated with late night operation of sexually-oriented termediate scrutiny analysis of state statute prohibit- businesses, including prostitution, drug use, and lit- ing sexually-oriented businesses from operating dur- tering, would be achieved less effectively in the ab- ing late night hours and until noon on Sundays, of sence of the statute. U.S.C.A. Const.Amend. 1; showing that it relied on evidence reasonably be- A.R.S. § 13-1422. lieved to be relevant in demonstrating a connection [15] Constitutional Law 90.4(1) between its stated rationale and the protected speech, 92k90.4(1) Most Cited Cases the burden shifted to those challenging the statute to cast direct doubt on the state's rationale, either by [15] Public Amusement and Entertainment demonstrating that the state's evidence did not sup- 9(1) port its rationale or by furnishing evidence that dis- 315Tk9(1) Most Cited Cases puted the state's factual findings. U.S.C.A. (Formerly 376k2 Theaters and Shows) Const.Amend. 1; A.R.S. § 13-1422. State statute prohibiting sexually-oriented businesses from operating during late night hours and until noon [12] States 34 on Sundays left open ample alternative channels for 360k34 Most Cited Cases communication, as required under First Amendment Legislative committees are not judicial tribunals, and free speech clause intermediate scrutiny analysis, in are not bound by rules of evidence, and thus, may that the statute permitted the businesses within its rely on anecdotal testimony. purview to operate seventeen hours per day Monday [13] Constitutional Law 90.4(1) through Saturday, and thirteen hours on Sunday. 92k90.4(1) Most Cited Cases U.S.C.A. Const.Amend. 1; A.R.S. § 13- 1422. [13] Public Amusement and Entertainment [16] Constitutional Law 90.4(1) 9(1) 92k90.4(1) Most Cited Cases 315Tk9(1) Most Cited Cases Fact that state statute prohibited sexually-oriented
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businesses from operating during late night hours and hours of 1.00 a.m. and 8:00 a.m. on Monday through until noon on Sundays but did not prohibit other Saturday and between the hours of 1:00 a.m. and types of business from operating at those hours did 12:00 noon on Sunday." Ariz.Rev.Stat. § not render the statute underinclusive so as to subject 13-1422(A). A sexually-oriented business is an "adult it to strict scrutiny under the First Amendment free arcade, adult bookstore or video store, adult cabaret, speech clause; state could legitimately single out adult motion picture theater, adult theater, escort sexually-oriented businesses to regulate their hours of agency or nude model studio...." Id. Violation of § operation. U.S.C.A. Const.Amend. 1; A.R.S. § 13-1422(A) is a class one misdemeanor. Id. § 13-1422. 13-1422(B). *1156 G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, CA, argued the cause and filed briefs FN1. We adopt the nomenclature used in the for appellant Center for Fair Public Policy, et al. John statute for the sake of convenience. H. Weston was on the briefs. Section 13-1422 was originally proposed to the Ari- Richard J. Hertzberg, Phoenix, AZ, argued the cause zona legislature in 1998 as Senate Bill 1367. The bill and filed briefs for appellants L.J. Concepts, et al. was assigned to the House of Representatives' Gov- ernment Reform and States' Rights Committee and to Scott E. Boehm, Copple, Chamberlin, Boehm & the Senate Family Services Committee, and public Murphy, P.C., Phoenix, AZ, argued the cause and hearings were held in both bodies. While the original filed briefs for the defendants. Janet A. Napolitano, bill passed in the Senate, it was voted down in the Arizona Attorney General, and Thomas J. Dennis, Arizona House Rules Committee. Assistant Arizona Attorney General, Phoenix, AZ, were on the briefs. James H. Hays, Assistant City At- At the same time, Senate Bill 1162, a bill authorizing torney for the City of Phoenix, and James M. Arizona counties to develop land-use regulations Flenner, Assistant City Attorney for the City of Gl- within their respective jurisdictions, and which in- endale, were also on the briefs. cluded an authorization to license and to regulate sexually-oriented businesses operating within unin- Appeal from the United States District Court for the corporated areas, was winding its way through the le- District of Arizona; Earl H. Carroll, District Judge, gislature. When original Senate Bill 1367 failed in Presiding. D.C. Nos. CV-98-01583-EHC, CV- the House Rules Committee, its provisions were ad- 98-01584-EHC. ded verbatim as an amendment to the more compre- hensive Senate Bill 1162. Amended Senate Bill 1162 *1157 Before CANBY, O'SCANNLAIN, and W. passed both the House and the Senate, and was FLETCHER, Circuit Judges. signed into law on June 1, 1998, and became effect- ive on August 21, 1998. Opinion by Judge O'SCANNLAIN; Dissent by Judge CANBY. The record before the Arizona legislature prior to § 13-1422's enactment consisted of testimonial evid- OPINION ence from several individuals, as well as some lim- O'SCANNLAIN, Circuit Judge. ited documentary evidence with respect to the need We must decide whether a state statute prohibiting for restricting sexually-oriented businesses' hours of sexually-oriented businesses from operating during operation. late night hours passes muster under the First Russell Smolden and Jane Lewis both testified before Amendment. House and Senate committees. These individuals I worked for mixed-use real estate parks located in The Arizona statute at issue here requires all sexu- Tempe and Phoenix, and both testified that nearby ally-oriented businesses [FN1] to close "between the sexually-oriented businesses were disruptive of their
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attempts to attract new employers to the parks, and al because it was a reasonable time, place and manner prospective employers expressed concern for their restriction on speech. Second, there is a letter from employees who worked night-shifts. They testified the NFLF to House members, discussing ostensibly that limiting the hours of operation of the nearby the same themes raised in the letter to the House sexually-oriented businesses would aid in their ef- Committee. Finally, there is a "fact sheet" prepared forts to attract employers to the parks. by the NFLF, which noted that every study conducted established the negative secondary effects associated Scott Bergthold, the executive director and general with sexually-oriented businesses. In particular, the counsel to the National Family Legal Foundation fact sheet noted a 1989 report prepared by the Min- ("NFLF"), testified that similar hours of operation re- nesota Attorney General's office which concluded strictions had been upheld as constitutional by federal that surrounding communities are negatively im- courts. He also testified that approximately fifteen pacted by 24-hour-a-day or late night operation of studies had been conducted concerning the negative sexually-oriented businesses. None of the reports dis- secondary effects associated with sexually-oriented cussed in the fact sheet were presented to the legis- businesses. Those studies documented increased lature. The fact sheet also contained a discussion of crime, prostitution, public sexual indecency and the constitutionality of the proposed restrictions. health risks associated with HIV and AIDS transmis- sion. The plaintiffs in this action are owners and operators of sexually-oriented businesses in Arizona. They in- Donna Neil, co-founder of a group known as the clude nude-dancer clubs, x-rated video arcades and Neighborhood Activist Interlinked *1158 Empower- sellers of sexually-related magazines and ment Movement ("Nail'em"), testified that, each paraphernalia. Some of these businesses were open weekend, parents in her neighborhood cleared up lit- 24-hours a day prior to enactment of § 13-1422. Two ter emanating from neighborhood sexually-oriented separate groups of plaintiffs--the L.J. Concepts, Inc. businesses. She also testified that the local school's plaintiffs and the Center for Fair Public Policy playground was fenced and closed to neighborhood plaintiffs (collectively "Fair Public Policy")-- filed children on weekends due to incidents of prostitution suit on September 1, 1998 in federal district court, al- on school grounds. She stated that the neighborhood leging that § 13-1422 violates the First Amendment, had experienced an increase in crime--specifically and seeking declaratory and injunctive relief. The drug arrests and assaults--associated with sexually- cases were consolidated and assigned to Judge Car- oriented businesses. Finally, Bridget Mannock, a roll, and a briefing schedule with respect to the pro- neighborhood legislative liaison for the City of priety of issuing a preliminary injunction was agreed Phoenix testified that a state-level hours of operation upon. regulation was necessary due to the limited nature of the local municipalities' authority. While the parties were briefing the preliminary in- junction issue, the state defendants placed in the dis- Some documentary evidence was presented to the trict court record copies of fourteen studies on the Arizona legislature. First, there is a letter from the negative secondary effects associated with adult- NFLF addressed to the House Government Reform oriented businesses. Fair Public Policy objected be- and States' Rights Committee. The letter discussed cause these studies were not before the legislature the acute problems associated with sexually-oriented prior to § 13-1422's enactment. businesses as documented in a report from the Den- ver Metropolitan Police Department, which con- On September 30, 1999, Judge Carroll denied Fair cluded that sexually-oriented businesses "dispropor- Public Policy's application for a preliminary injunc- tionately deplete police time and resources during the tion. The district court found that the statute was con- overnight hours." The Denver report itself was not stitutional under the Supreme Court's decision in presented to the Committee. The letter also discussed Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 the fact that the proposed regulation was constitution- S.Ct. 925, 89 L.Ed.2d 29 (1986), and that there was
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sufficient pre-enactment evidence, without regard to manner regulation. Id. Second, the Court considered the studies introduced during the litigation, to support whether the ordinance was content neutral or content the statute's enactment. The plaintiff groups filed no- based. The Court held that, because the ordinance at tices of appeal from *1159 Judge Carroll's decision, issue was aimed not at the content of the films shown and those appeals were duly consolidated by this at adult theaters, but rather at the secondary effects court. We affirmed the district court's decision not to such theaters have on the surrounding community, it issue a preliminary injunction. See L.J. Concepts v. was properly classified as content neutral. Id. at 47, City of Phoenix, No. 99-17270, 2000 U.S.App. LEX- 106 S.Ct. 925. Third, given this finding, the final step IS 5906, at *3 (9th Cir. March 30, 2000). On Septem- is to ask whether the ordinance is designed to serve a ber 13, 1999, the district court denied the plaintiffs' substantial government interest and that reasonable request for a permanent injunction and declaratory re- alternative avenues of communication remain avail- lief, and entered judgment for the defendants. able. Id. at 50, 106 S.Ct. 925. With respect to the bur- Plaintiffs timely appealed. den of proof at this stage, the Court held that the First Amendment "does not require a city ... to conduct II new studies or produce evidence independent of that While the constitutionality of hours of operation re- already generated by other cities, so long as whatever strictions on sexually-oriented businesses is an issue evidence the city relies upon is reasonably believed of first impression in this circuit, six other circuits to be relevant to the problem that the city addresses." have had occasion to consider similar restrictions, Id. at 51- 52, 106 S.Ct. 925. and all have found such restrictions to be constitu- tional under the "secondary effects" test first enunci- A ated by the Supreme Court in Renton. See DiMa The Supreme Court recently reaffirmed the Renton Corp. v. Town of Hallie, 185 F.3d 823 (7th Cir.1999); framework in City of Los Angeles v. Alameda Books, Lady J. Lingerie, Inc. v. City of Jacksonville, 176 Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 F.3d 1358 (11th Cir.1999); Richland Bookmart Inc. v. (2002). At issue in that case was a Los Angeles or- Nichols, 137 F.3d 435 (6th Cir.1998); Nat'l Amuse- dinance prohibiting multiple adult entertainment ments Inc. v. Town of Dedham, 43 F.3d 731 (1st businesses from operating in the same building. In Cir.1995); Mitchell v. Comm'n on Adult Enter. Est. of enacting this ordinance, the city primarily relied on a the State of Delaware, 10 F.3d 123(3d Cir.1993); 1977 study conducted by the city's planning depart- Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 ment, which indicated that between 1965 and 1975, (5th Cir.1986). crime had grown at a much higher rate in Hollywood, which had the largest concentration of adult estab- In Renton, the Supreme Court considered a constitu- lishments in the city, than in the city as a whole. tional challenge to a zoning ordinance prohibiting *1160Id. at 435, 122 S.Ct. 1728 (plurality opinion). adult movie theaters from locating within 1,000 feet Under the third prong of the Renton analysis, we had of any residential zone. 475 U.S. at 43, 106 S.Ct. 925. found that the 1977 study did not reasonably support Citing its decision in Young v. American Mini the inference that a concentration of adult operations Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 in the same building produced higher crime rates. See L.Ed.2d 310 (1976), the Court established a now fa- Alameda Books, Inc. v. City of Los Angeles, 222 F.3d miliar three-part analytical framework for evaluating 719, 725 (9th Cir.2000). This was so, we held, be- the constitutionality of sexually-oriented business cause the study focused on the effect of a concentra- regulations, or what Professor Tribe has described tion of establishments on a given area, not on the ef- rather aptly as "erogenous zoning laws." Laurence H. fect of a concentration of establishments within a Tribe, American Constitutional Law 934 (2d single building. Id. It was therefore unreasonable, we ed.1988). First, the Court asked whether the ordin- opined, for the city to infer that absent its regulation, ance was a complete ban on adult theaters. Id. at 46, a combination of establishments within a single 106 S.Ct. 925. Because the ordinance was not a total building would have harmful secondary effects on the ban, it was properly analyzed as a time, place and
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surrounding community. Id. are separate and distinct. Id. at 440, 122 S.Ct. 1728 (quotation and internal citation omitted). Justice The Supreme Court reversed. Writing for a four- O'Connor explained, judge plurality, Justice O'Connor wrote that we had The former requires courts to verify that the "pre- erred in requiring the city to "prove that its theory dominate concerns" motivating the ordinance about a concentration of adult operations ... is a ne- "were with the secondary effects of adult [speech], cessary consequence of the 1977 study." 535 U.S. at and not with the content of adult [speech]." The lat- 437, 122 S.Ct. 1728 (emphasis added). Justice ter inquiry goes one step further and asks whether O'Connor explained, the municipality can demonstrate a connection In Renton, we specifically refused to set such a between the speech regulated by the ordinance and high bar for municipalities that want to address the secondary effects that motivated the adoption merely the secondary effects of protected speech. of the ordinance. Only at this stage did Renton con- We held that a municipality may rely on any evid- template that courts would examine evidence con- ence that is reasonably believed to be relevant for cerning regulated speech and secondary effects. demonstrating a connection between speech and a *1161 Id. at 440-41, 122 S.Ct. 1728 (quoting Renton, substantial, independent government interest. This 475 U.S. at 47, 106 S.Ct. 925) (alterations in origin- is not to say that a municipality can get away with al). shoddy data or reasoning. The municipality's evid- ence must fairly support the municipality's ra- 1 tionale for its ordinance. If plaintiffs fail to cast dir- Writing separately, Justice Kennedy concurred in the ect doubt on this rationale, either by demonstrating judgment. Because his concurrence is the narrowest that the municipality's evidence does not support opinion joining in the judgment of the Court, Justice its rationale or by furnishing evidence that disputes Kennedy's concurrence may be regarded as the con- the municipality's factual findings, the municipality trolling opinion. See Marks v. United States, 430 U.S. meets the standard set forth in Renton. If plaintiffs 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1976) succeed in casting doubt on a municipality's ra- ("When a fragmented Court decides a case and no tionale in either manner, the burden shifts back to single rationale explaining the result enjoys the assent the municipality to supplement the record with of five Justices, the holding of the Court may be evidence renewing support for a theory that justi- viewed as that position taken by those Members who fies the ordinance. concurred in the judgment on the narrowest Id. at 438-39, 122 S.Ct. 1728 (internal citation and grounds.") (citation and internal quotation omitted). quotation omitted). In his separate concurrence, Justice Kennedy agreed The plurality made two other points of clarification with the plurality that "the central holding of Renton with respect to the evidentiary burden under Renton. is sound: A zoning restriction that is designed to de- First, it rejected the notion that the state is required to crease secondary effects and not speech should be come forward with empirical data in support of its or- subject to intermediate rather than strict scrutiny." dinance. "Such a requirement," wrote Justice 535 U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., con- O'Connor, "would go too far in undermining our curring). Justice Kennedy wrote separately, he ex- settled position that municipalities must be given a plained, for two distinct reasons. reasonable opportunity to experiment with solutions to address the secondary effects of protected speech." First, he agreed with the four dissenting justices that Id. at 439, 122 S.Ct. 1728. sexually-oriented business regulations should no longer be designated as "content neutral" when they Second, the plurality made it clear that "the inquiry were clearly not. Whether a statute is content based into whether a [sexually-oriented business regulation] or content neutral, he explained, "is something that is content neutral" and the "inquiry into whether it is can be determined on the face of it; if the statute de- designed to serve a substantial government interest" scribes speech by content then it is content based." Id.
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Classifying regulations of the type at issue in Renton does not suffice.... The premise ... must be that and Alameda Books as content neutral, explained businesses ... will for the most part disperse rather Justice Kennedy, was an unhelpful legal fiction than shut down. which only leads to doctrinal incoherence; these Id. at 451, 122 S.Ct. 1728. types of ordinances "are content based and we should call them so." Id. Only after identifying "the proposition to be proved" can a court seek to answer "the second part of the Second, while Justice Kennedy agreed with the plur- question presented; is there sufficient evidence to ality that Renton remained sound, he wrote separately support the proposition?" Id. As to the state's eviden- because in his view, the plurality's application of tiary burden, Justice Kennedy agreed fully with the Renton "might constitute a subtle expansion" of plurality that "very little evidence is required." Id. Renton 's principles with which he did not agree. Id. The "reasonable reliance" standard is necessary, he at 445, 122 S.Ct. 1728. He explained that, in his wrote, because "[a]s a general matter, courts should view, the question presented--whether or not the city not be in the business of second-guessing fact-bound could rely on judicially approved statutory precedent empirical assessments of city planners." Id. from other jurisdictions in support of the regulation- -"is actually two questions." 535 U.S. at 449, 122 2 S.Ct. 1728. Going straight for the jugular, Fair Public Policy First, what proposition does a city need to advance pounces on Justice Kennedy's concurrence in in order to sustain a secondary-effects ordinance? Alameda Books and argues that there is no way to re- Second, how much evidence is required to support concile the statute at issue here with his "proportional- the proposition? The plurality skips to the second ity" requirement. It argues that sexually-oriented question and gives the correct answer; but in my businesses draw a fair amount of their patronage in view more attention must be given to the first. the evening and late night hours--nude dancing estab- Id. With regard to the first question--the proposition lishments are hardly doing a roaring trade after dawn. that the city needs to advance--Justice Kennedy wrote The ordinance shuts these establishments down dur- that "a city may not assert that it will reduce second- ing the late night hours, and therefore it cannot be, as ary effects by reducing speech in the same propor- Justice Kennedy would require, that "the quantity of tion." Id. The analysis has to address "how speech speech will be substantially undiminished, and that will fare under the ... ordinance." Id. at 450, 122 S.Ct. total secondary effects will be significantly reduced." 1728. Because of this, "it does not suffice to say that Id. This is precisely the scenario Justice Kennedy inconvenience will reduce demand and fewer patrons warned against, Fair Public Policy argues, because it will lead to fewer secondary effects." Id. The ra- is only by reducing the enjoyment of protected ex- tionale, therefore, has to be that a proposed second- pression that the state reduces secondary effects. Be- ary-effects ordinance will leave "the quantity of cause the statute cannot be squared with Justice speech ... substantially undiminished, and that total Kennedy's proportionality analysis, and because his is secondary effects will be significantly reduced." Id. at the controlling opinion under Marks, it urges that the 451, 122 S.Ct. 1728. To illustrate this proportionality statute must be invalid under the First Amendment. requirement, Justice Kennedy took the facts of the a case under consideration, Fair Public Policy's argument is a forceful one, but If two adult businesses are under the same roof, an there are several reasons that lead us to conclude that ordinance requiring them to separate will have one Justice Kennedy never intended a heightened propor- of two results: One business will either move else- tionality requirement to apply in this particular con- where or close. The city's premise cannot be *1162 text. First and foremost, the argument that Justice the latter. It is true that cutting adult speech in half Kennedy meant to invalidate an hours of operation would probably reduce secondary effects propor- restriction of the type at issue here cannot be squared tionally. But ... a promised proportional reduction with his insistence that "the central holding of Renton
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remains sound." Id. at 448, 122 S.Ct. 1728. Limiting en this, the application of Justice Kennedy's propor- the negative externalities associated with certain land tionality analysis to this particular type of secondary uses, as a properly crafted secondary effects ordin- effects law would invalidate all such laws, and we ance is designed to do, is a "prima facie legitimate are satisfied that he never intended such a result. His purpose," and for this reason "such laws do not auto- proportionality requirement was simply not designed matically raise the specter of impermissible content with this particular type of restriction in mind. discrimination." Id. at 449, 122 S.Ct. 1728. Justice Kennedy quite clearly agreed with the plurality that c laws "designed to decrease secondary effects ... Finally, Fair Public Policy's argument that Justice should be subject to intermediate rather than strict Kennedy's Alameda Books opinion presents a new scrutiny." Id. at 449, 122 S.Ct. 1728. He wrote separ- and different approach to the constitutional analysis ately to guard against "a subtle expansion" of Renton, of secondary effects law is inconsistent with the and not, as Fair Public Policy would have it, to signal weight of authority in the wake of that decision. a fundamental shift in the Renton 10229 framework. Courts have routinely upheld properly crafted sec- Given his emphatic reaffirmance of Renton, we are ondary effects ordinances supported by a proper re- not persuaded that Justice Kennedy meant to precipit- cord in the wake of Alameda Books, and have expli- ate a sea change in this particular corner of First citly stated that Justice Kennedy's separate decision Amendment law. This is especially so given that the did little, if indeed anything, to the traditional Renton circuit courts have thus far been unanimous in up- framework. See Z.J. Gifts D-4, LLC v. City of holding similar or even more severe hours of opera- Littleton, 311 F.3d 1220, 1239 n. 15 (10th Cir.2002) tion restrictions under Renton. See DiMa Corp., 185 (seeing "nothing in ... Alameda Books that requires F.3d 823; Lady J. Lingerie, Inc., 176 F.3d at 1358; reconsideration" of the traditional Renton frame- Richland Bookmart Inc., 137 F.3d at 435; Nat'l work); World Wide Video of Wash., Inc. v. City of Amusements Inc., 43 F.3d at 731; Mitchell, 10 F.3d at Spokane, 227 F.Supp.2d 1143, ---- (E.D.Wash.2002) 123; Star Satellite, Inc., 779 F.2d at 1074. We *1163 ("While Alameda Books may clarify existing preced- read nothing in Justice Kennedy's separate opinion ent, this court is not persuaded that it fundamentally signaling disapproval with these results. alters the legal landscape regarding adult entertain- ment zoning ordinances."). As the Seventh Circuit b explained, "[t]he differences between Justice Justice Kennedy's proportionality analysis also needs Kennedy's concurrence and the plurality opinion are to be understood in light of the particular species of ... quite subtle." Ben's Bar, Inc. v. Village of Somer- secondary effects law that the Court was considering. set, 316 F.3d 702, 721(7th Cir.2003). The ordinance at issue in Alameda Books was a clas- Justice Kennedy's position is not that a municipal- sic erogenous zoning ordinance whereby the city was ity must prove the efficacy of its rationale for redu- restricting certain land uses. It was a "place" restric- cing secondary effects prior to implementation, as tion, and Justice Kennedy's proportionality analysis is Justice Souter and the other dissenters would re- easy enough to understand and to apply to such a typ- quire, see generally Alameda Books, 122 S.Ct. at ical zoning ordinance. The city's rationale cannot be 1744-51; but that a municipality's rationale must that when it requires businesses to disperse (or to be premised on the theory that it "may reduce the concentrate), it will force the closure of a number of costs of secondary effects without substantially re- those businesses, thereby reducing the quantity of ducing speech." protected speech. In contrast, we are faced with a Id. (emphasis in original) (quoting Alameda Books, quite different species of secondary effects law--a 535 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., con- "time" restriction that forces the closure of all adult curring)). Indeed, the plurality in Alameda Books entertainment establishments for a limited time. We considered Justice Kennedy's proportionality analysis accept the proposition that such establishments tend "unobjectionable," and "simply a reformulation of the to be patronized in the evening and late at night. Giv- requirement that an ordinance warrants intermediate
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scrutiny only if it is a time, place, and manner regula- tiny."). tion and not a ban." 535 U.S. at 443, 122 S.Ct. 1728 (plurality opinion). [2][3] A regulation restricting the hours of operation of a sexually-oriented business is quite obviously d content based. "[W]hether a statute is content neutral In any event, to the extent Justice Kennedy's concur- or content based is something that can be determined rence worked any change in the traditional Renton on the face of it; if the statute describes speech by framework, we are satisfied that his proportionality content then it is content based." Alameda Books, 535 analysis *1164 does not apply to the particular type U.S. at 448, 122 S.Ct. 1728 (Kennedy, J., concur- of regulation that we deal with here, and we reject ring). The Arizona statute is content based on its face Fair Public Policy's argument that the statute must be because whether an establishment falls within its invalidated on the basis of his opinion. Because five parameters, and is therefore subject to sanction for vi- members of the Supreme Court agreed that "the cent- olating the prohibition against operating during night- ral holding of Renton is sound" we apply the tradi- time hours, can only be determined by reference to tional three-part test in order to determine the consti- the content of the expression inside it. See Schultz v. tutionality of § 13-1422. City of Cumberland, 228 F.3d 831, 843-44 (7th Cir.2000) ("[A]n ordinance that regulates only adult- B entertainment businesses singles out adult-oriented Our first task under Renton, then, is to determine establishments for different treatment based on the whether the statute amounts to a complete ban on content of the materials they sell or display.") protected expressive activity. Renton, 475 U.S. at 46, (internal quotation omitted). Because the statute is 106 S.Ct. 925; Alameda Books, 535 U.S. at 434, 122 content based, Fair Public Policy argues that strict S.Ct. 1728 (plurality opinion). scrutiny should apply. Such argument is misplaced.
1 [4] The Supreme Court has clearly carved out sexual [1] The statute at issue here is obviously not a com- and pornographic speech as one type of speech than plete ban. It is a classic time, place or manner restric- can be subject to reasonable restriction. "Generally, tion, prohibiting sexually-oriented businesses from the government has no power to restrict speech based operating during certain nighttime hours, and until on content, but there are exceptions to this rule." noon on Sundays. The businesses may remain open Alameda Books, 535 U.S. at 448, 122 S.Ct. the remainder of the time, 115 hours in a 168 hour 1728(Kennedy, J., concurring). The speech and ex- week, or approximately 5,980 hours in a calendar pressive activity at issue here is one such exception; year. "The ordinance is therefore properly analyzed the content based/content neutral distinction simply as a time, place, and manner regulation." Renton, 475 does not fit in this context. In fine, so long as the reg- U.S. at 46, 106 S.Ct. 925. ulation is designed to combat the secondary effects of such establishments on the surrounding community, 2 "namely at crime rates, property values, and the qual- Next, we must determine what level of scrutiny to ap- ity of the city's neighborhoods," *1165Alameda ply. Traditionally, the Court has invoked the content Books, 535 U.S. at 434, 122 S.Ct. 1728 (plurality based/content neutral distinction as the basis for de- opinion), then it is subject to intermediate scrutiny. termining which level of scrutiny to apply. See Turn- See also Colacurcio v. City of Kent, 163 F.3d 545, er Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 642, 551(9th Cir.1998) (explaining that if "the predomin- 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) ("Our pre- ant purpose" of an ordinance is ameliorating second- cedents ... apply the most exacting scrutiny to regula- ary effects associated with sexually-oriented busi- tions that suppress, disadvantage, or impose differen- nesses, then it is subject to intermediate scrutiny). tial burdens upon speech because of its content.... In contrast, regulations that are unrelated to the content [5] "We will look to the full record" to determine of speech are subject to an intermediate level of scru- whether the purpose of the statute is to ameliorate
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secondary effects. Id. at 552. "In so doing, we will associated with sexually-oriented businesses. See rely on all 'objective indicators of intent,' including Alameda Books, 535 U.S. at 447, 122 S.Ct. 1728 the 'face of the statute, the effect of the statute, com- (Kennedy, J., concurring) (fact that the ordinance at parison to prior law, facts surrounding enactment, the issue was "one part of an elaborate web of land-use stated purpose, and the record of proceedings.' " Id. regulations .... suggests that the ordinance is more in (quoting City of Las Vegas v. Foley, 747 F.2d 1294, the nature of a typical land-use restriction and less in 1297(9th Cir.1984)). the nature of a law suppressing speech").
a There are other "objective indicators of intent" on this [6] In this context, the first thing to note about § record. Foley, 747 F.2d at 1297. For example, the 13-1422 is that it regulates both establishments pro- "fact sheet" prepared by the NFLF stated that a tected by the First Amendment--adult bookstores, statewide hours regulation was necessary to curb the video stores, cabarets, motion picture theaters and problems associated with sexually-oriented business, theaters--and businesses that have no such protection- which "according to law enforcement, include noise, -escort agencies, [FN2] for example, suggesting that traffic, unlawful public sexual activity, prostitution the state's purpose in enacting the statute was unre- and drug trafficking." Moreover, the majority of com- lated to the suppression of expression. In Alameda ments made by legislators when the bill was under Books, Justice Kennedy noted the fact that the ordin- consideration focused on the secondary effects asso- ance at issue was "not limited to expressive activities. ciated with sexually-oriented businesses. In short, our It also extends ... to massage parlors, which the city examination of the record as a whole, see Colacurcio, has found to cause similar secondary effects." 535 163 F.3d at 552, indicates that the predominant pur- U.S. at 447, 122 S.Ct. 1728 (Kennedy, J., concur- pose in enacting this provision was to ameliorate the ring). secondary effects associated with the regulated estab- lishments. FN2. An "escort agency" is "a person or business association that furnishes, offers to *1166 b furnish or advertises the furnishing of es- [7] Fair Public Policy argues that there is no pre- corts as one of its primary business purposes enactment evidence on which the legislature could for any fee, tip or other consideration." Ar- rely to support its conclusion that the restrictions are iz.Rev.Stat. § 13-1422(D)(7). An "escort" is warranted. But this argument confuses two separate "a person who for consideration agrees or issues which the Supreme Court has made clear need offers to act as a companion, guide or date to be carefully distinguished. The 'predominant pur- for another person or who agrees or offers to pose' inquiry is separate and independent from the in- privately model lingerie or to privately per- quiry into whether the statute is designed to serve a form a striptease for another person." Id. § substantial government interest. Only with respect to 13-1422(D)(6). the latter inquiry "did Renton contemplate that courts would examine evidence concerning regulated speech Furthermore, the hours regulation was passed as an and secondary effects." Alameda Books, 535 U.S. at amendment to Senate Bill 1162, a broader bill author- 441, 122 S.Ct. 1728 (plurality opinion). In short, Fair izing counties to develop comprehensive land-use Public Policy's argument is one that was specifically regulations within their respective jurisdictions, and considered and rejected by the Supreme Court in to promote the social value of the land as a whole. Alameda Books. Because our examination of the re- See Ariz.Rev.Stat. § 11-821 ("The county plan shall cord as a whole indicates that, in enacting the hours be made with the general purpose of guiding and ac- of operation restriction, the Arizona legislature was complishing a coordinated, adjusted and harmonious concerned with curbing the negative secondary ef- development of the area of jurisdiction."). This is yet fects associated with such businesses, intermediate another objective indicator that the purpose of the scrutiny applies. statute was to combat the negative secondary effects
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3 whether or not we may consider the contents [8] The statute will be upheld if it is designed to serve of the studies that document the secondary a substantial government interest, is narrowly tailored effects associated with sexually-oriented to serve that interest, and does not unreasonably limit businesses, and that were placed in the dis- alternative avenues of communication. Renton, 475 trict court record during the course of these U.S. at 50, 106 S.Ct. 925; Colacurcio, 163 F.3d at proceedings. While the Arizona legislature 551. was briefed on these studies, the actual stud- ies themselves were not before the legis- a lature prior to § 13-1422's enactment, and it [9] It is beyond peradventure at this point in the de- is therefore so-called post-enactment evid- velopment of the doctrine that a state's interest in ence. However, in Alameda Books the Su- curbing the secondary effects associated with adult preme Court specifically contemplated that entertainment establishments is substantial. See the state could indeed rely on post-en- Young, 427 U.S. at 71, 96 S.Ct. 2440 (city's "interest actment evidence in support of its position, in attempting to preserve the quality of urban life is but only if the plaintiffs succeed in casting one that must be accorded high respect"); Renton, doubt on the state's rationale. See Alameda 475 U.S. at 50, 106 S.Ct. 925 (noting the "vital gov- Books, 535 U.S. at 441, 122 S.Ct. 1728(if ernment interests at stake"); Alameda Books, 535 "the burden shifts back" to the state, then U.S. at 435, 122 S.Ct. 1728 ("reducing crime is a state can "supplement the record with evid- substantial government interest"). ence renewing support for a theory that jus- tifies the ordinance" (emphasis added)); see Here, Arizona's specific interest is in reducing the also Mitchell, 10 F.3d at 136 (examining secondary effects associated with late night opera- "pre-enactment and post-enactment evid- tions of sexually-oriented businesses, which include ence" in determining whether state met its noise, traffic, unlawful public sexual activity, prosti- burden); DiMa Corp., 185 F.3d at 829-30 tution and drug trafficking. Each of our sister circuits (holding that "a municipality may make a re- to have considered similar prohibitions has recog- cord for summary judgment or at trial with nized that such an interest is a substantial one. See, evidence that it may not have had when it e.g., National Amusements, Inc., 43 F.3d at 741(city enacted the ordinance"); Ben Rich Trading has a substantial interest in preserving peace and Inc. v. City of Vineland, 126 F.3d 155, 161 tranquility for citizens during late evening hours); (3d Cir.1997) (discussing city's burden of Mitchell, 10 F.3d at 133 (state's interest in preserving production and noting that "a record could character and preventing deterioration of neighbor- be established in the court after legislation is hoods substantial); Richland Bookmart, Inc., 137 passed and challenged"). F.3d at 440-41 (deterring "prostitution in the neigh- borhood at night or the creation of 'drug corners' on *1167 The pre-enactment record is a slim one, and the surrounding streets" a substantial government in- consists of certain letters from NFLF documenting in terest). a general sense the "acute problems" associated with sexually-oriented businesses, and discussing a Den- The critical issue, of course, is whether the state has ver, Colorado study, which concluded that such es- met its burden under Renton of coming forward with tablishments disproportionately deplete police time evidence that "demonstrate[s] a connection between and resources during overnight hours. A "fact sheet" the speech regulated ... and the secondary effects that distributed to legislatures cited fourteen studies that motivated the adoption of the ordinance." Alameda documented the secondary-effects associated with Books, 535 U.S. at 441, 122 S.Ct. 1728(plurality adult entertainment establishments, and in particular opinion). [FN3] it noted a Minnesota study establishing specific sec- FN3. The parties argue at great length over ondary effects associated with sexually-oriented busi-
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nesses during overnight hours. The Arizona legis- *1168 [10] The record here is hardly overwhelming, lature also held public hearings and considered cer- but it does not have to be. See Alameda Books, 535 tain testimonial evidence, including evidence that U.S. at 451, 122 S.Ct. 1728,(Kennedy, J., concurring) prospective employers were concerned for the safety ("very little evidence is required" to justify a second- of their night-shift employees, and testimony from a ary effects ordinance). The question is whether the neighborhood activist concerning the litter, prostitu- Arizona legislature relied on evidence "reasonably tion, and drug use in her neighborhood. believed to be relevant" in demonstrating a connec- tion between its stated rationale and the protected All of the evidence the Arizona legislature considered speech, and we hold that it has done that here. The fairly supports its rationale that prohibiting sexually- Arizona Senate and House held public hearings at oriented businesses from operating in the late night which lawmakers heard citizen testimony concerning hours will lead to a reduction in secondary effects, the late night operation of sexually-oriented busi- and generally enhance the quality of life for Arizona nesses, and were briefed on several studies docu- citizens. A comparison of the record before the Ari- menting secondary effects, and two of those studies zona legislature to the record amassed in prior cases were specific to late night operations. See Renton, that have been the subject of judicial scrutiny may be 475 U.S. at 50, 106 S.Ct. 925(reasonable for regulat- helpful in determining whether the state has carried ors to rely on experiences and studies of other cities, its burden in this case. The quantum and quality of as well as legal decisions upholding similar regula- evidence here compares unfavorably to two of the tions). That evidence is both reasonable and relevant, circuit court cases to have considered similar restric- and compares favorably with the evidence presented tions. The city ordinance upheld by the Fifth Circuit in other cases. was "adopted after extensive study" by the city. Star Satellite, Inc., 779 F.2d at 1077-78. No such study i was done here. Instead, Arizona relied on the experi- [11][12] Under Alameda Books, the burden now ences of other communities in support of its rationale. shifts to Fair Public Policy to "cast direct doubt on But see Renton, 475 U.S. at 50, 106 S.Ct. [the state's] rationale, either by demonstrating that the 925(rejecting the argument that it was necessary for a [state's] evidence does not support its rationale or by city to conduct its own studies). The ordinance at is- furnishing evidence that disputes the [state's] factual sue in Schultz v. City of Cumberland, 228 F.3d 831, findings." 535 U.S. at 441, 122 S.Ct. 1728 (plurality 846 (7th Cir.2000) was adopted after the city "collec- opinion). Fair Public Policy's primary argument on ted and reviewed a host of studies," and here, while appeal is that the evidence before the Arizona legis- the legislature was briefed with respect to certain lature consisted of "irrelevant anecdotes" and "isol- studies, no studies were put before the legislature pri- ated" incidents, and that testimonial evidence is not or to enactment. "real" evidence. If Fair Public Policy means to argue that such evidence is improper, its argument is erro- The record compares favorably to the evidence con- neous, and simply misconstrues the nature of the le- sidered in several other cases, however. In Mitchell, gislative process. Legislative committees are not judi- lawmakers "received no documents or any sworn cial tribunals, and they are not bound by rules of testimony in support of the bill" and "the General As- evidence. As the First Circuit explained when con- sembly did not conduct public hearings." 10 F.3d at fronted with a similar argument, 133. Nonetheless the Third Circuit held that the state A legislative body can act without first acquiring had met its evidentiary burden under Renton. See also irrefutable proof. In other words, lawmakers need DiMa Corp., 185 F.3d at 830-31 (city relied on factu- not bury each piece of described trash before acting al record supporting another city's ordinance); Ben to combat litter, or confirm each honking horn be- Rich Trading Inc., 126 F.3d at 161 (only thing city fore acting to abate noise levels. Instead, a legislat- relied on was evidence presented to state legislature ive body, acting in furtherance of the public in- two years previously). terest, is entitled to rely on whatever evidence it
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reasonably believes to be relevant to the problem at ated with late night operation of sexually-oriented hand. businesses, including prostitution, drug use and litter- National Amusements, Inc., 43 F.3d at 742(internal ing-- would be achieved less effectively in the ab- quotation and citations omitted); see also World Wide sence of the statute. Fair Public Policy argues that the Video of Wash., 227 F.Supp.2d 1143 ("[A]necdotal Arizona legislators did not consider any evidence evidence and reported experience can be as telling as particular to late night hours, but this assertion is be- statistical data and can serve as a legitimate basis for lied by the record. Testimonial evidence was intro- finding negative secondary effects.") (quoting String- duced specific to the late night operation of such fellow's of N.Y., Ltd. v. City of New York, 91 N.Y.2d businesses, and the legislature was briefed on two 382, 671 N.Y.S.2d 406, 694 N.E.2d 407, 417 (1998)). studies specific to problems associated with night- time operation of sexually oriented businesses. See [13] To the extent Fair Public Policy argues that the National Amusements, Inc., 43 F.3d at 744 ("It is state needs to come forward with empirical data in within a government's purview to conclude that such support of its rationale, that argument was specific- secondary effects as late-night noise and traffic are ally rejected in Alameda Books. 535 U.S. at 439, 122 likely to adhere to all [adult] entertainment."). S.Ct. 1728 (plurality opinion) ("Such a requirement would go too far in undermining our settled position Nor does the fact that the statute does not permit such that municipalities must be given a reasonable oppor- establishments to operate prior to noon on Sundays tunity to experiment with solutions to address the render it overly-broad. The Eleventh Circuit con- secondary effects of protected speech.") (internal sidered and rejected precisely the same argument in quotation omitted); see also Barnes v. Glen Theatre, Lady J. Lingerie: Inc., 501 U.S. 560, 584, 111 S.Ct. 2456, 115 L.Ed.2d [T]he plaintiffs would have us look at the City's 504 (Souter, J., concurring) ("legislation seeking to reasons for this rule on an hour by hour basis. combat the secondary effects of adult entertainment There is no evidence, they submit, of a substantial need not await localized proof of those effects"). government interest to justify requiring adult busi- nesses to close from 10:00 a.m. until noon. This is [12] Fair Public Policy has failed to cast doubt on the a clever argument, but it confuses the requirement state's theory, or on the evidence the state relied on in that a regulation serve a substantial government in- support of that theory. "Precedent ... commands terest with the requirement that it be narrowly *1169 that courts should not stray from a deferential tailored to that end.... If we were to side with the standard in these contexts, even when First Amend- plaintiffs here, the next litigants would argue ment rights are implicated through secondary ef- whether evidence of secondary effects at 6:15 in fects." Charter Comm's, Inc. v. County of Santa Cruz, the morning justifies requiring adult businesses to 304 F.3d 927, 932 (9th Cir.2002). Since the state re- close at 9:30, or whether evidence from 9:30 justi- lied on evidence that is "reasonably believed to be fies requiring them to close at 10:45. That sort of relevant," Renton, 475 U.S. at 52, 106 S.Ct. 925, we line-drawing is inconsistent with a narrow tailoring are satisfied that it has met its evidentiary burden. requirement that only prohibits regulations that are "substantially broader than necessary." b 176 F.3d at 1365 (quoting Ward, 491 U.S. at 800, [14] The narrow tailoring requirement is satisfied so 109 S.Ct. 2746). long as the government's asserted interest "would be achieved less effectively absent the regulation." Furthermore, all six circuits to have considered hours Colacurcio, 163 F.3d at 553 (quoting Ward v. Rock of operation restrictions such as the one at issue here Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, were confronted with regulations containing special 105 L.Ed.2d 661 (1989)). provisions for Sunday closing. Indeed, four circuits have upheld regulations that prohibit Sunday hours It appears self-evident that the government's asserted altogether. See Ben Rich Trading, 126 F.3d at 158; interest--the amelioration of secondary effects associ- Schultz, 228 F.3d at 837; Star Satellite, 779 F.2d at
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1079; Richland Bookmart, Inc., 137 F.3d at 438. Two Fair Public Policy's first major problem is that this ar- other circuits have upheld regulations prohibiting gument runs straight into the Supreme Court's de- sexually-oriented businesses from operating before cision in Renton. The adult theater plaintiffs in that noon on Sunday, as here. See Mitchell, 10 F.3d at case argued that the ordinance at issue was underin- 128; Lady J. Lingerie, 176 F.3d at 1365. In short, be- clusive because it failed to regulate other kinds of cause Arizona's interest in ameliorating secondary ef- adult businesses that are just as likely to produce sec- fects "would be achieved less effectively absent the ondary effects similar to those produced by adult regulation," Colacurcio, 163 F.3d at 553 (quotation theaters. Renton, 475 U.S. at 52, 106 S.Ct. 925. The omitted), it satisfies the narrow tailoring requirement. Court rejected this argument, holding that simply be- cause the city "chose first to address the potential *1170 c problems created by one particular kind of adult busi- [15] Finally, the statute must "leave open ample al- ness in no way suggests that the city has 'singled out' ternative channels for communication." Ward, 491 adult theaters for discriminatory treatment." Id. at 53, U.S. at 791, 109 S.Ct. 2746. "The Supreme Court 106 S.Ct. 925. generally will not strike down a governmental action for failure to leave open ample alternative channels Fair Public Policy gamely attempts to distinguish of communication unless the government enactment Renton by pointing out that the Court in Renton dealt will foreclose an entire medium of public expression with a comparison of one kind of adult entertainment across the landscape of a particular community or business with other kinds of adult entertainment busi- setting." Colacurcio, 163 F.3d at 554. nesses, whereas their argument here is that the state may not single out the entire industry of adult enter- The statute permits the businesses that come within tainment. As we have previously explained, however, its purview to operate seventeen hours per day the Supreme Court has consistently stated that so Monday through Saturday, and thirteen hours on long as the legislature's motive is the amelioration of Sunday, a total of approximately 5,980 hours per secondary effects, sexually-oriented businesses may year. In Mitchell, the Third Circuit found that a simil- indeed be singled out. As the Supreme Court in ar restriction "allows those who choose to hear, view, R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S.Ct. or participate publically in sexually explicit express- 2538, 120 L.Ed.2d 305 (1992), explained, ive activity more than thirty-six hundred hours per [T]he First Amendment imposes not an "underin- year to do so. We think the Constitution requires no clusiveness" limitation but a "content discrimina- more." 10 F.3d at 139. We find that the statute leaves tion" limitation upon a State's prohibition of pro- open "ample alternative channels for communica- scribable speech. There is no problem whatever, tion." Ward, 491 U.S. at 791, 109 S.Ct. 2746. for example, with a State's prohibiting obscenity (and other forms of proscribable expression) only III in certain media or markets, for although that pro- [16] As an alternative ground for finding the statute hibition would be "underinclusive," it would not unconstitutional, Fair Public Policy argues that it is discriminate on the basis of content.... Another val- unconstitutionally underinclusive. The argument is id basis for according differential treatment to even that the state's decision to close sexually-oriented a content-defined subclass of proscribable speech businesses during late night hours must be assessed is that the subclass happens to be associated *1171 in light of other types of business which the state per- with particular secondary effects of the speech, so mits to operate at night. According to Fair Public that the regulation is justified without reference to Policy, the state must demonstrate that greater late the content of the speech. night problems are posed by sexually-oriented busi- Id. at 387, 389, 112 S.Ct. 2538 (emphasis in original) nesses than by non-regulated businesses, and if it (citations and quotations omitted). does not, the statute is underinclusive and is therefore subject to strict scrutiny. The State "may choose to treat adult businesses dif- ferently from other businesses...." Isbell, G and B
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Emporia, Inc., 258 F.3d 1108, 1116 (9th Cir.2001); Books is the opinion of Justice Kennedy, because see also Young, 427 U.S. at 70-71, 96 S.Ct. 2440 there was no majority opinion and Justice Kennedy's ("[T]he State may legitimately use the content of concurring opinion was the one that supported the these materials as the basis for placing them in a dif- Court's judgment on the narrowest grounds. See ferent classification from other motion pictures."). If Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. this is true as a general proposition, then it must also 990, 51 L.Ed.2d 260 (1977). be true as to the specific proposition that a state may single out sexually-oriented businesses to regulate Like the four dissenters in Alameda Books, Justice their hours of operation. See Ben Rich Trading, Inc., Kennedy viewed the regulation of adult entertain- 126 F.3d at 163 ("[A] municipality may regulate ment businesses to be content-related, because the hours of adult businesses differently than other busi- businesses to be regulated are identified by the con- nesses without raising a strong inference of discrim- tent of their speech. Alameda Books, 535 U.S. at 448, ination based on content."). 122 S.Ct. 1728 (Kennedy, J., concurring). Yet Justice Kennedy agreed with City of Renton v. Playtime IV Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 In short, we reject Fair Public Policy's argument that L.Ed.2d 29 (1986), that a regulation that is "designed we need to assess the regulation in light of how other to decrease secondary effects and not speech should classes of businesses are treated under Arizona law. be subject to intermediate rather than strict scrutiny." [FN4] The State may choose to treat adult businesses Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728. differently from other businesses so long as it does so for the right reasons, and it has done that here. It need Justice Kennedy, however, imposed important condi- do no more. tions as part of this intermediate scrutiny. The ques- tion in issue in Alameda Books was whether the city's FN4. Though we reject Fair Public Policy's ordinance was invalid because the city did not study argument that the statute needs to be as- the secondary effects of the precise use being regu- sessed in light of how other classes of busi- lated, but relied on judicially approved precedent ness are treated, we note in passing that Ari- from other *1172 jurisdictions. Justice Kennedy zona law does indeed provide for restrictions stated that this issue involved two questions: on the nighttime operation of other classes First, what proposition does a city need to advance of business. See, e.g., Ariz.Rev.Stat. § in order to sustain a secondary-effects ordinance? 44-1632 ("A city or town may adopt an or- Second, how much evidence is required to support dinance prohibiting the operation of pawn- the proposition? shops from 12:00 a.m. to 6:00 a.m."); Ar- Id. at 449, 122 S.Ct. 1728. Unlike the plurality opin- iz.Rev.Stat. § 4-244(15) ("It is unlawful .... ion, Justice Kennedy focused on the first question, to sell, dispose of, deliver or give spiritous and imposed requirements that are crucial to the liquor to a person between the hours of 1:00 present case. He elaborated: a.m. and 6:00 a.m. on weekdays, and 1:00 [A] city must advance some basis to show that its a.m. and 10:00 a.m. on Sundays."). regulation has the purpose and effect of suppress- ing secondary effects, while leaving the quantity The judgment of the district court is AFFIRMED. and accessibility of speech substantially intact. The ordinance may identify the speech based on con- CANBY, Circuit Judge, dissenting: tent, but only as a shorthand for identifying the sec- I dissent from the majority opinion because I con- ondary effects outside. A city may not assert that it clude that it is inconsistent with City of Los Angeles will reduce secondary effects by reducing speech in v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. the same proportion. 1728, 152 L.Ed.2d 670 (2002). As the majority here Id. (emphasis added). recognizes, the focus of our examination of Alameda Applying this reasoning to the Los Angeles ordinance
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that prohibited two or more adult entertainment busi- adult entertainment establishments. nesses from operating in the same building, Justice Kennedy made his point once again: FN1. I use the term "adult entertainment es- It is no trick to reduce secondary effects by redu- tablishments" to refer to expressive activities cing speech or its audience; but a city may not at- such as those conducted by the plaintiffs. As tack secondary effects indirectly by attacking the majority opinion points out, the statutory speech. term "sexually-oriented businesses" includes The analysis requires a few more steps. If two adult escort services that presumably are not en- businesses are under the same roof, an ordinance gaged in First Amendment-protected activ- requiring them to separate will have one of two res- ity. My discussion does not relate to them. ults: One business will either move elsewhere or *1173 The record in the present case cannot sustain close. The city's premise cannot be the latter. It is any other theory than the impermissible one. The ma- true that cutting adult speech in half would prob- jority opinion candidly characterizes the pre- ably reduce secondary effects proportionately. But enactment support for the statute as "slim." Indeed, it again, a promised proportional reduction does not is so slim that I have grave doubts that it suffices un- suffice ..... der Renton without the gloss of Alameda Books. I .... The claim, therefore, must be that this ordinance need not address that point, however, because the re- will cause two businesses to split rather than one to cord clearly fails to support a permissible theory of close, that the quantity of speech will be substan- regulation under Justice Kennedy's test in Alameda tially undiminished, and that total secondary effects Books. The evidence in both the legislature and the will be significantly reduced. district court was almost entirely concerned with sec- Id. at 450-51, 122 S.Ct. 1728 (emphasis added). Hav- ondary effects that are unrelated to the hours of oc- ing thus answered his first sub-question, Justice currence. Studies of the effects of adult entertainment Kennedy then agreed with the plurality with regard to businesses on the crime rate were mentioned in legis- his second: There was sufficient evidence to support lative hearings, but none were put into the legislative the proposition that forced dispersal of two such busi- record. A Minnesota study was said to have reported nesses was reasonably likely to reduce secondary ef- adverse effects from 24-hour operation of adult estab- fects at little cost to speech. Id. at 452-53, 122 S.Ct. lishments, but the study was not produced to the le- 1728. gislature. A study by the city of Phoenix, Arizona, The closing-hours statute in issue here, however, pro- was briefly referred to as having explored the effect ceeds on precisely the theory that Justice Kennedy of nighttime operation of adult establishments but found insupportable under the First Amendment. The was said to be "inconclusive"; it also was not pro- theory is that adult entertainment establishments duced. Another reference was made to a study by [FN1] create adverse secondary effects when they are Fulton County, Georgia (also not produced for the le- in operation. If operation is prohibited for several gislature), but its conclusions tended to show no dis- hours each day, the undesirable secondary effects proportionate adverse effect on crime rate because of will be reduced accordingly. Unlike a dispersal regu- operation of adult entertainment businesses. See lation, the state's instrument is not to move speech, Flanigan's Enterprises, Inc. v. Fulton County, 242 but to stop it. And Justice Kennedy has informed us F.3d 976, 979 (11th Cir.2001) (describing Fulton that "a city may not attack secondary effects indir- County study). The focus of secondary effects in the ectly by attacking speech." Id. at 450, 122 S.Ct. 1728. record was on those effects generally, not on second- A government similarly may not proceed on a theory ary effects caused by late-night operations, and cer- that "it will reduce secondary effects by reducing tainly not on disproportionate secondary effects of speech in the same proportion." Id. at 449, 122 S.Ct. late-night operations. Finally, there is a total absence 1728. It would be hard to find a more exact descrip- of evidence anywhere in the record to support the ex- tion than this of Arizona's closing hour regulation of istence of disproportionate secondary effects from operation on Sunday mornings before noon. (Indeed,
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the required closing on Sunday mornings might sug- 'nothing in ... Alameda Books requires re- gest to a reasonable observer that something other consideration' of the traditional Renton than the mere regulation of secondary effects was go- framework." The Tenth Circuit's statement, ing on in the legislature, but I need not pursue that however, was that "nothing in ... Alameda question here.) Books requires reconsideration of our con- clusion as to the applicable standard of re- As for the effect of the statute on speech, there is no view." Id. The Tenth Circuit was merely in question that speech is simply stopped during the agreement with Justice Kennedy that inter- hours of forced closure. Several affidavits filed in mediate review was appropriate, not strict district court asserted that many customers of adult scrutiny as Z.J. Gifts was arguing. The establishments held two jobs and could not patronize Tenth Circuit said nothing about leaving the the establishments except during hours subject to the Renton "framework" intact. closure. Another stated that closure during the tar- Nor is the Seventh Circuit's description of geted hours caused a twenty-five percent decline in Justice Kennedy's opinion, see Ben's Bar, gross revenues of an adult establishment. All in all, Inc. v. Village of Somerset, 316 F.3d 702, the record overwhelmingly establishes that the clos- 721 (7th Cir.2003), inconsistent with my ure, at best, achieves a one-for-one elimination of reading of it. speech and secondary effects--a formula that fails to meet the requirements of the First Amendment as The majority opinion also refers to Justice Kennedy's Justice Kennedy has stated them. statement that he feared the plurality opinion's "applic- ation of Renton might constitute a subtle expansion, The majority opinion here addresses Justice with which I do not concur." Id. at 445, 122 S.Ct. Kennedy's concurrence, but concludes that he did not 1728. Here again, it over-reads Justice Kennedy's mean his statements to apply to the present situation. statement to accept it as an endorsement of Renton The majority holds that Justice Kennedy meant no without the gloss Justice Kennedy adds to the analys- change in the Renton analysis because he said "the is in his opinion. If Justice Kennedy thought that the central holding of Renton is sound." Id. at 448, 122 Renton analysis was correct, except for its denomina- S.Ct. 1728. But that statement came after Justice tion of the ordinance as content-neutral, he could Kennedy departed from Renton 's assumption that have stated that minor disagreement and joined all regulation of adult entertainment establishments to the rest of the plurality opinion. His major reason for limit secondary effects was not content-based. Justice writing was to establish that the plurality's analysis Kennedy stated that this fiction was not useful, and was deficient because it did "not address how speech that it was better to admit that such regulations were will fare under the city's ordinance." Id. at 450, 122 content-based. Such an admission would normally S.Ct. 1728. He then spends nearly all of the re- call for review under a strict scrutiny, but Justice mainder of his opinion explaining his rule that a gov- Kennedy did not accept that consequence. It is with ernment cannot reduce secondary effects by reducing regard only to the standard of review that he then speech on a one-for-one basis. That is what Arizona said: "[T]he central holding of Renton is sound: A has done here. I would take Justice Kennedy at his zoning restriction that is designed to decrease second- word and on this record would hold Arizona's statute ary effects and not speech should be *1174 subject to to be in violation of the First Amendment. intermediate rather than strict scrutiny." Id. To read this statement as a wholesale endorsement of an un- 336 F.3d 1153, 121 A.L.R.5th 733, 03 Cal. Daily Op. modified Renton analysis is to ignore context. [FN2] Serv. 6603, 2003 Daily Journal D.A.R. 8308
FN2. The majority opinion quotes the Tenth Briefs and Other Related Documents (Back to top) Circuit opinion in Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1239 n. 15 • 2002 WL 32144911 (Appellate Brief) Supplemental (10th Cir.2002), for the proposition that " Brief of Appellants Center for Fair Public Policy, et
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al. (Appellants in Ninth Circuit Case No. 00-16858) (Oct. 04, 2002)Original Image of this Document with Appendix (PDF)
• 2002 WL 32144912 (Appellate Brief) Appellees' Supplemental Brief (Oct. 04, 2002)Original Image of this Document with Appendix (PDF)
• 2002 WL 32144910 (Appellate Brief) Supplemental Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV-98-1583-PHX-EHC) (Oct. 03, 2002)Original Image of this Document with Appendix (PDF)
• (Appellate Brief) Reply Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Cir- cuit Case No. 00-16858) (Jun. 12, 2001)Original Im- age of this Document with Appendix (PDF)
• (Appellate Brief) Reply Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV- 98-1583-PHX-EHC) (Jun. 04, 2001)Original Image of this Document with Appendix (PDF)
• (Appellate Brief) Appellees' Answering Brief (May. 03, 2001)Original Image of this Document with Ap- pendix (PDF)
• 2001 WL 34128000 (Appellate Brief) Opening Brief of Appellants Center for Fair Public Policy, et al. (Appellants in Ninth Circuit Case No. 00-16858) (Mar. 05, 2001)Original Image of this Document with Appendix (PDF)
• (Appellate Brief) Opening Brief of Appellants L.J. Concepts, et al (Appellants in #00-16905 and Plaintiffs in District Court Case No. CIV- 98-1583-PHX-EHC) (Feb. 02, 2001)Original Image of this Document with Appendix (PDF)
• 00-16905 (Docket) (Oct. 12, 2000)
• 00-16858 (Docket) (Oct. 04, 2000)
END OF DOCUMENT
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Reversed and remanded.
Briefs and Other Related Documents Canby, Circuit Judge, filed a dissenting opinion.
United States Court of Appeals, West Headnotes Ninth Circuit. TALK OF THE TOWN; Video Treasures, Inc.; [1] Constitutional Law 90(3) Video Treasures, Ltd.; Raymond 92k90(3) Most Cited Cases Pistol, President, Secretary and Treasurer, Plaintiffs- A government regulation is sufficiently justified if it Appellants, is within the constitutional power of the government, v. if it furthers an important or substantial governmental DEPARTMENT OF FINANCE AND BUSINESS interest, if the governmental interest is unrelated to SERVICES, on behalf of CITY OF LAS VEGAS, the suppression of expression, and if the incidental Defendant-Appellee. restriction on alleged First Amendment freedoms is Talk of the Town; Video Treasures, Inc.; Video no greater than is essential to the furtherance of that Treasures, Ltd.; Raymond interest. U.S.C.A. Const.Amend. 1. Pistol, President, Secretary and Treasurer, Plaintiffs- [2] Constitutional Law 90.4(3) Appellees, 92k90.4(3) Most Cited Cases v. Department of Finance and Business Services, on be- [2] Intoxicating Liquors 15 half of City of Las Vegas, 223k15 Most Cited Cases Defendant-Appellant. Las Vegas municipal code, which prohibited con- Nos. 01-15303, 01-16390. sumption of alcohol in establishments that lacked val- id liquor licenses, did not violate First Amendment Argued and Submitted Feb. 11, 2003. free speech rights of erotic dancing establishment, Filed Sept. 10, 2003. since ordinance did not regulate conduct containing Erotic dancing establishment brought action in state element of protected expression. U.S.C.A. court seeking declaratory and injunctive relief from Const.Amend. 1. enforcement of ordinance prohibiting consumption of [3] Constitutional Law 90.4(5) alcoholic beverages on premises of any establishment 92k90.4(5) Most Cited Cases that lacked valid liquor license, and injunction issued. City removed action on federal question grounds. [3] Intoxicating Liquors 15 The United States District Court for the District of 223k15 Most Cited Cases Nevada, Lloyd D. George, J., granted summary judg- Las Vegas municipal code, that required businesses ment in part for city and in part for establishment, to obtain valid liquor license before they were per- and appeal was taken. The Court of Appeals, mitted to serve alcohol on their premises, did not vi- O'Scannlain, Circuit Judge, held that: (1) ordinance olate First Amendment free speech rights of erotic did not regulate conduct containing element of pro- dancing establishment; ordinance did not place dis- tected expression; (2) ordinance did not place dispro- proportionate burden on those engaged in expressive portionate burden on those engaged in expressive conduct since requirement applied to all businesses. conduct; (3) enforcement procedure was generally U.S.C.A. Const.Amend. 1. applicable to any establishment that violated the or- dinance; and (4) three week suspension did not viol- [4] Constitutional Law 90.4(3) ate First Amendment free speech rights of establish- 92k90.4(3) Most Cited Cases ment.
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[4] Intoxicating Liquors 112 Appeal from the United States District Court for the 223k112 Most Cited Cases District of Nevada; Lloyd D. George, District Judge, Procedures employed by city in enforcement of gen- Presiding. D.C. No. CV-98-00910-LDG/ RJJ. erally applicable ordinance, which prohibited con- sumption of alcohol in establishment that lacked val- Before CANBY, JR., O'SCANNLAIN, and W. id liquor license, did not violate First Amendment FLETCHER, Circuit Judges. free speech rights of erotic dancing establishment, Opinion by Judge O'SCANNLAIN; Dissent by Judge since procedure was generally applicable to any es- CANBY tablishment that violated the ordinance; burdening of expressive conduct was merely incidental result of OPINION city's clear authority to enforce its generally applic- O'SCANNLAIN, Circuit Judge. able liquor license requirement. U.S.C.A. Const.Amend. 1. We must decide whether the First Amendment is im- [5] Constitutional Law 90(3) plicated by the suspension of an establishment's erot- 92k90(3) Most Cited Cases ic dancing license for violations of a city's alcohol li- The identity of the body imposing a sanction is irrel- censing laws. evant when the conduct that gives rise to the sanction manifests absolutely no element of protected expres- I sion under the First Amendment. U.S.C.A. In January and early February 1998, officers of the Const.Amend. 1. City of Las Vegas' Business License Department con- ducted some six overt and covert site investigations [6] Constitutional Law 90.4(3) at Talk of the Town ("TOT"), a business licensed to 92k90.4(3) Most Cited Cases present erotic dancing. [FN1] During the course of these investigations, inspectors themselves were al- [6] Public Amusement and Entertainment 46 lowed to bring onto the premises and consume alco- 315Tk46 Most Cited Cases holic beverages, and witnessed other patrons doing (Formerly 376k3.50 Theaters and Shows) the same, even though TOT did not possess a valid li- Three week suspension of erotic dancing establish- quor license. On several occasions, upon inquiring of ment's license, for violation of ordinance which pro- TOT employees about the availability of alcohol, the hibited consumption of alcohol in establishments that investigating officers were directed to a nearby liquor lacked valid liquor licenses, did not violate First store. [FN2] On February 6, 1998, TOT was issued a Amendment free speech rights of erotic dancing es- "Notice to Cease & Desist." The notice informed tablishment; by imposing relatively brief suspension TOT that it was in violation of Las Vegas Municipal to punish its unlawful nonexpressive activity, city Code ("LVMC") § 6.50.170, which forbids the sale properly sought to protect the environment of the or consumption of alcoholic beverages in any estab- community by directing the sanction at premises lishment lacking a valid alcoholic beverage license. knowingly used for lawless activities, and there was absolutely no evidence that suspension imposed was FN1. Las Vegas Municipal Code ("LVMC") pretext for suppression of protected expression. § 6.35.100(A) states that "[n]o person, firm, U.S.C.A. Const.Amend. 1. partnership, corporation or other entity shall *1064 Allen Lichtenstein, Las Vegas, NV, argued the advertise, or cause to be advertised, as an cause for Talk of the Town and submitted briefs. erotic dance establishment without a valid erotic dance establishment license...." TOT's *1065 Peter M. Angulo, Rawlings, Olson, Cannon, premises also includes a bookstore, but the Gormley & Desruisseaux, Las Vegas, NV, argued the erotic dance area of the business was the cause for the City of Las Vegas and filed briefs. subject of the investigation that triggered the Thomas D. Dillard, Jr., also was on the briefs. instant litigation.
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FN2. On one occasion, TOT's doorman, FN5. In addition to TOT's "Erotic Dance Es- having pointed the way to the nearby liquor tablishment License," the complaint noted store, allegedly informed the undercover that TOT also possessed a "Coin Operated agents that, when it came to consumption of Amusement License" and a "Video Viewing alcohol on the premises, "I'm blind in one License." The suspension of the latter two li- eye and can't see out of the other." censes was not challenged in the district court and neither party discusses them on On March 10, 1998, the Las Vegas Department of appeal. Finance and Business Services drafted and served on TOT a "Complaint for Disciplinary Action" pursuant TOT's answer to the complaint denied the allegations to the nuisance provisions of the LVMC, §§ and offered three affirmative defenses: "[1] Petition- 6.02.330(H) [FN3] and 6.02.370, [FN4] which sub- er's Complaint is barred by insufficiency of process. ject those who operate without the appropriate license [¶][2] The City of Las Vegas failed to provide the Pe- to "disciplinary action by the City Council for good titioners adequate notice that the City considered the cause." The "good cause" alleged in TOT's case was Respondents to be in violation of City ordinances. [3] the numerous violations of the City's general liquor The acts of the Respondents were neither willful, license provision, LVMC § 6.50.170, as well as § wanton, intentionally improper, nor taken in reckless 6.35.100(F), which forbids the purchase, sale, or con- disregard of the ordinances of the City of Las Vegas." sumption of alcohol *1066 in any erotic dancing es- In an order dated March 23, 1998, the mayor and tablishment that does not also possess a valid liquor City Council informed TOT that the complaint had license. The Department further requested that the been approved and that a hearing on the complaint City Council "[a]pprove the Complaint for Disciplin- would be held on May 20, 1998. ary Action and order a disciplinary hearing at which the Respondents shall appear and show cause why At the May 20 hearing, TOT was represented by the licenses [FN5] that are the subject of this Com- counsel while the City was represented by the deputy plaint should not be suspended or revoked, or other city attorney. The proceedings were transcribed ver- disciplinary action taken...." batim and the witnesses who appeared testified under oath and were subject to cross-examination. TOT was FN3. This provision provides: "The licensee given the opportunity to present its own witnesses but may be subject to disciplinary action by the chose not to do so. The City presented as witnesses City Council for good cause, which may, the licensing officers who investigated the violations without limitation, include: ... The actual at TOT, and, on the basis of their testimony, the business activity constitutes a public or council concluded that there was substantial evidence private nuisance, or has been or is being to support the allegations in the complaint. On May conducted in an unlawful, illegal, or imper- 29, 1998, the council issued findings of fact, conclu- missible manner." sions of law, and an order imposing a three-week sus- pension of TOT's license to run an erotic dance estab- FN4. This section provides: lishment. [FN6] The order stated that "substantial The doing of any act for which a license is evidence exists that TALK OF THE TOWN was in required or the violation of any provision of violation of Law Vegas Municipal Code §§ 6.50.170 this Title is declared to be unlawful and and/or 6.35.100(F) and/or 6.02.330(H)." The order harmful to the safety, welfare, health, peace also stated that suspension of the erotic dancing li- and morals of the residents and taxpayers of cense would go into effect fourteen days after service the City and constitutes a public nuisance upon TOT. Service was made on the same day, but per se, unless such act is done by a person before the fourteen days ran, TOT filed suit in who is authorized to do so by a license is- Nevada district court seeking declaratory and injunct- sued pursuant to this Title. ive relief. TOT also moved for a stay of the suspen- sion of their license. The stay was granted and the
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City subsequently removed the case to the federal TOT's challenge to the constitutionality of LVMC § district court. 6.35.140(D), the district court found the provision lacked "safeguards regarding suspension or revoca- FN6. TOT's coin operated amusement and tion of [an erotic dancing] license," and therefore video viewing licenses were also suspended concluded that it "is unconstitutional on its face." In for three weeks. the judgment accompanying its final order, the dis- trict court stayed the enforcement of the erotic dance Both parties filed motions for summary judgment. license suspension, giving both parties a fourteen-day TOT's motion alleged that (1) the City's procedures in window within which to seek judicial review of the reaching the decision to suspend its license (i.e., its City's decision to suspend TOT's license and further procedure of providing notice and a hearing before held that if either party did seek judicial review, the the City Council) violated its First and Fourteenth stay would remain in place "until there is a final de- Amendment rights, and (2) the enforcement of the termination or decision by a judicial officer." If, City's suspension of its license violated the First however, neither party sought judicial review within Amendment by failing to follow "well established that time, the court ordered that the stay would be procedural guidelines set forth by the federal courts automatically lifted. for licensing decisions concerning [adult] busi- nesses." With respect to the latter claim, TOT raised FN8. The district court noted that TOT both a facial and as-applied challenge to § "fail[ed] to offer any argument or cite any 6.35.140(D), [FN7] the provision of the LVMC law suggesting that the procedure up to and *1067 that allows for judicial review of any suspen- including the City's decision [to suspend its sion or revocation of a nude dancing license, on the license] violated either Due Process or the grounds that it "fails to provide for prompt judicial First Amendment." In its opening brief be- review of a decision to suspend an erotic dance li- fore this court, TOT makes no reference to cense during which time the status quo must be main- this claim. See Officers for Justice v. Civil tained." The City's opposition and counter-motion for Service Commission, 979 F.2d 721, 727 (9th summary judgment asserted that (1) TOT's First Cir.1992) ("We will not ordinarily consider Amendment rights were not at issue, and (2) the pro- matters on appeal that are not specifically cedures available were constitutionally adequate. and distinctly raised and argued in appel- lant's opening brief."). FN7. This section provides: In the event the erotic dance license is sus- Fourteen days later, on April 27, 2001, TOT filed and pended or revoked, the license suspension or served on opposing counsel a "Motion to Amend and revocation shall be stayed for fourteen days Emergency Motion for a Stay Pending Judicial Res- from the date of the written notice to the li- olution." TOT contended that, because the district censee for the licensee to seek judicial re- court had declared LVMC § 6.35.140(D) facially un- view. The licensee may waive the stay pro- constitutional, and because that provision could not vision in writing, or the City may seek soon- be severed from the rest of the City's license suspen- er to enforce the suspension or revocation by sion/revocation scheme, the entire scheme was void. filing in the district court a petition for judi- Because of the constitutional infirmity of § cial review as provided by NRS 43.100 or 6.35.140(D), TOT contended, the City never had the by seeking alternative relief pursuant to authority to suspend its license and could not now en- Chapter 34 of NRS. force its decision to do so, regardless of the district court's subsequent ruling and award of injunctive re- In due course, the federal district court rejected lief. TOT's constitutional challenge to the procedures the City used in reaching the conclusion that TOT viol- On April 28, 2001, the day after TOT filed its motion ated the alcohol ordinance. [FN8] With respect to but before the district court ruled on it, the City
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moved to close the business pursuant to the 1998 de- ... comes to this Court bearing a heavy presumption cision by the City Council to suspend its erotic dance against its constitutional validity.") (internal quota- establishment license. TOT remained closed for three tions omitted), recognize as the source of this pre- days, until May 1, 2001, when the district court gran- sumption the "principle that the freedoms of expres- ted the emergency stay and ordered oral argument for sion must be ringed about with adequate bulwarks." May 15, 2001, on the motion to amend. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 66, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). On June 1, the district court denied the motion to amend judgment. The court entered a stay once again FN10. O'Brien "considered the First to allow TOT to appeal the court's determination. Amendment ramifications of a statute which [FN9] imposed criminal sanctions on one who 'knowingly destroys, knowingly mutilates, FN9. The district court also rejected the or in any manner changes' a draft registra- City's cross motion to revise its judgment in tion certificate." Arcara v. Cloud Books, light of a new version of § 6.35.140(D) that Inc., 478 U.S. 697, 702, 106 S.Ct. 3172, 92 had been passed in 2000. L.Ed.2d 568 (1986). The individual raising the constitutional challenge had burned his TOT, having substantially prevailed in the district draft card to show his opposition to the Viet- court, timely appeals that court's remedy, urging re- nam War. versal insofar as the ruling allows for any future en- forcement *1068 of the May 20, 1998, decision by The question, of course, is the extent to which these the Las Vegas City Council to suspend Talk of the traditional "bulwarks" are necessary for the protec- Town's license. The City cross-appeals, challenging tion of TOT's constitutionally protected expression the district court's determination that the First [FN11] when that expression is burdened solely as a Amendment is implicated in this case. result of TOT's violation of a generally applicable li- quor license law. The City relies on the O'Brien line II of cases to argue that no such protections are re- We note at the outset that this case implicates two quired, while TOT relies on the prior restraint line of distinct lines of First Amendment jurisprudence. The cases to argue the contrary position. To resolve this first, or O'Brien line--named after the Supreme issue, we must examine more closely the relevant au- Court's decision in United States v. O'Brien, 391 U.S. thority from these two lines of cases. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) [FN10]- -teaches that "generally applicable regulations of con- FN11. There is no dispute that erotic dance duct implicate the First Amendment only if they (1) establishments like TOT are venues for con- impose a disproportionate burden on those engaged stitutionally protected expression. See City in First Amendment activities; or (2) constitute gov- of Erie v. Pap's A.M., 529 U.S. 277, 289, ernmental regulation of conduct with an expressive 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). element." Nunez v. City of San Diego, 114 F.3d 935, 950 (9th Cir.1997). The second line of cases concerns III "prior restraints" on speech that arise "when the en- In Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 joyment of protected expression is contingent upon S.Ct. 3172, 92 L.Ed.2d 568 (1986), the Supreme the approval of government officials." Baby Tam & Court was faced with a constitutional challenge Co. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th arising from the closure of an adult bookstore. An in- Cir.1998). The many cases that stand for the proposi- vestigation by the authorities revealed that the book- tion that prior restraints on speech are presumptively store was being used for, among other illicit pur- unconstitutional, see, e.g., Southeastern Promotions poses, the solicitation of prostitution. This discovery v. Conrad, 420 U.S. 546, 558, 95 S.Ct. 1239, 43 "formed the basis of a civil complaint against [the L.Ed.2d 448 (1975) ( "Any system of prior restraint bookstore and its owners] seeking closure of the
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premises" under a state law that declared buildings on the shoulders of newspapers).]. This case in- used in the solicitation of prostitution to be nuisances. volves neither situation, and we conclude the First Id. at 699, 106 S.Ct. 3172. The bookstore challenged Amendment is not implicated by the enforcement the imposition of the closure remedy as an infringe- of a public health regulation of general application ment of its constitutionally protected bookselling against the physical premises in which respondents activities. happen to sell books. Arcara, 478 U.S. at 706-07, 106 S.Ct. 3172. The [1] In evaluating the bookstore's First Amendment Court concluded: "Bookselling in an establishment claim, the Court noted its earlier *1069 holding in used for prostitution does not confer First Amend- O'Brien that "when 'speech' and 'nonspeech' elements ment coverage to defeat a valid statute aimed at pen- are combined in the same course of conduct, a suffi- alizing and terminating illegal uses of premises." Id. ciently important governmental interest in regulating at 707, 106 S.Ct. 3172. the nonspeech element can justify incidental limita- tions on First Amendment freedoms." O'Brien, 391 Arcara makes clear that a sanction imposed pursuant U.S. at 376, 88 S.Ct. 1673. The Court nevertheless to a generally applicable law does not trigger First concluded that O'Brien's test [FN12] for evaluating Amendment scrutiny, even where the sanction results the validity of the government's interest in imposing in a burden on expression. [FN13] Before the First incidental limitations on expression simply was not Amendment protections against generally applicable implicated by the closure of the bookstore: regulations set forth in O'Brien can be invoked, there- fore, a court must determine that the government is FN12. "[W]e think it clear that a govern- either (1) regulating conduct with an expressive com- ment regulation is sufficiently justified if it ponent, or (2) imposing a disproportionate burden on is within the constitutional power of the those engaged in expressive conduct. See Nunez, 114 Government; if it furthers an important or F.3d at 950 (citing Arcara, 478 U.S. at 703-04, 106 substantial governmental interest; if the gov- S.Ct. 3172). ernmental interest is unrelated to the sup- pression of expression; and if the incidental FN13. The Court did take pains to note that restriction on alleged First Amendment "[w]ere [the bookstore] able to establish the freedoms is no greater than is essential to the existence of ... a speech suppressive motiva- furtherance of that interest." O'Brien, 391 tion or policy on the part of the District At- U.S. at 376-77, 88 S.Ct. 1673. torney, they might have a claim of selective prosecution." Arcara, 478 U.S. at 707 n. 4, [W]e have not traditionally subjected every crimin- 106 S.Ct. 3172. The Court found no evid- al and civil sanction imposed through legal process ence of such intent in the record, and the to 'least restrictive means' scrutiny simply because bookstore did not assert the existence of each particular remedy will have some effect on such intent before the trial court. the First Amendment activities of those subject to sanction. Rather, we have subjected such restric- [2][3] Here, the section of the Las Vegas Municipal tions to scrutiny only where it was conduct with a Code that bars the consumption of alcohol in estab- significant expressive element that drew the legal lishments that lack valid liquor licenses, LVMC § remedy in the first place, as in O'Brien, or where a 6.50.170, in no way can be said to regulate conduct statute based on a nonexpressive activity has the containing an element of protected expression. inevitable effect of singling out those engaged in [FN14] Nor can it be said *1070 that the City's re- expressive activity, as in Minneapolis Star [& quirement that businesses obtain a valid liquor li- Tribune Co. v. Minnesota Commissioner of Reven- cense before they are permitted to serve alcohol on ue, 460 U.S. 575, 581, 103 S.Ct. 1365, 75 L.Ed.2d their premises places a disproportionate burden on 295 (striking down a tax imposed on the sale of those engaged in expressive conduct: The require- newsprint because the tax fell disproportionately ment applies to all businesses, whether they be book-
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stores or bars. tend, in the judgment of the Board, to debase or cor- rupt morals or incite to crimes.' " Id. at 52 n. 2, 85 FN14. We recognize that the sections of the S.Ct. 734 (quoting Md. Ann.Code, 1957, Art. 66A, § LVMC that regulate nude dancing establish- 6(a)). The broad discretion accorded to the Board, in ments include a provision barring such busi- the Court's view, created the "danger of tolerating, in nesses from serving or allowing the con- the area of First Amendment freedoms, the existence sumption of alcohol without a valid liquor of a penal statute susceptible of sweeping and im- license. See LVMC § 6.35.100(F) ("No erot- proper application." Id. at 57, 85 S.Ct. 734 (internal ic dance establishment licensee shall serve, quotation marks omitted). To check this broad discre- sell, distribute, or suffer the consumption or tion--and to ensure that it would not improperly bar possession of any intoxicating liquor, or any protected expression--the court held that a "noncrimin- beverage represented as containing any alco- al process which requires the prior submission of a hol upon the premises of the licensee film to a censor avoids constitutional infirmity only if without a valid liquor license."). The mere it takes place under procedural safeguards designed existence of such a redundant provision, to obviate the dangers of a censorship system." Id. at however, cannot be said disproportionately 58, 85 S.Ct. 734. The procedural safeguards, in the to burden expressive conduct given that the Court's view, were essential to cabin the censors's provision reiterates--albeit in slightly differ- otherwise largely unfettered discretion to determine ent terms--the generally applicable require- what constitutes suitable, non-obscene expression ment that alcohol may not be served or con- and what does not. The Supreme Court recognized sumed without a valid license. that, unless such determinations--bound up as they are with the necessarily legal determination of wheth- Thus, were the dispute in this case limited to whether er a particular film is entitled to First Amendment the City possessed the authority to punish TOT for its protection--were subjected to prompt judicial review violations of the generally applicable liquor laws- "to minimize the deterrent effect of an interim and -even to the point of burdening TOT's expressive possibly erroneous denial of a license." Id. at 59, 85 conduct--we could end our analysis here. For Arcara S.Ct. 734. makes clear that TOT may not "use the First Amend- ment as a cloak for obviously unlawful" conduct. Ar- A cara, 478 U.S. at 705, 106 S.Ct. 3172. TOT contends, More recently, the Supreme Court applied Freed- however, that because the City sought as sanction the man's reasoning in the context of licensing schemes suspension of its erotic dancing license, the "prior re- for sexually oriented businesses like TOT. In straint" line or First Amendment jurisprudence en- *1071FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, titles TOT to certain procedural safeguards that were 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the Court not provided here. We turn to this claim now. was faced with a challenge to an ordinance that "regu- late[d] sexually oriented businesses through a scheme IV incorporating zoning, licensing, and inspections." Id. The Supreme Court has long recognized that requir- at 220-21, 110 S.Ct. 596. The licensing portion of the ing an individual or a business to receive the permis- scheme required the chief of police to approve the is- sion of some governing authority before engaging in suance of a sexually oriented business license to an expressive conduct implicates the First Amendment. applicant within thirty days of the receipt of the ap- In Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, plication. This thirty-day time limit, the Court noted, 13 L.Ed.2d 649 (1965), for example, the Supreme was qualified by a requirement that no license could Court entertained a challenge to a Maryland law that be issued to a sexually oriented business "if the created a State Board of Censors charged with, premises to be used [by the business] ... have not among other things, " 'approv[ing] and licens [ing] been approved by the health department, fire depart- such films or views which are moral and proper, and ment, and the building official as being in compliance ... disapprov[ing] such as are obscene, or such as
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with applicable laws and ordinances." Id. at 227, 110 forceable because they unconstitutionally restrained S.Ct. 596 (internal quotation marks omitted). Because speech by failing to provide adequate procedural there was no requirement that the necessary inspec- safeguards." Id. Relying on the principles announced tions be conducted within the thirty-day time period- by the Supreme Court in FW/PBS--which in turn re- -or indeed, within any time period at all-- the Court lied upon the principles announced by the Court in concluded that the scheme ran afoul of the "core Freedman--we held that the procedures for revoking policy underlying Freedman," namely, "that the li- or suspending a nude dancing license must either (1) cense for a First Amendment-protected business must "provide for prompt hearing and decision by a *1072 be issued within a reasonable period of time, because judicial officer," or (2) maintain the status quo (i.e., undue delay results in the unconstitutional suppres- prohibit the enforcement of the suspension or revoca- sion of protected speech." Id. at 228, 110 S.Ct. 596. tion) until there has been a judicial decision on the The Court nevertheless recognized that "[t]he licens- merits. Convoy, 183 F.3d at 1116. Because the ing scheme we examine today is significantly differ- scheme at issue provided for only discretionary man- ent from the censorship scheme examined in Freed- damus review of the license suspension decision, we man. In Freedman, the censor engaged in direct cen- declared it constitutionally insufficient and enjoined sorship of expressive material. ... Under the Dallas the enforcement of the suspension "so long as the ordinance, the City does not exercise discretion by City's ordinance and the ... statutory scheme fail to passing judgment on the content of any protected provide for a prompt hearing and decision by a judi- speech." Id. at 229, 110 S.Ct. 596. The Court accord- cial officer, or for the maintenance of the status quo ingly stopped short of imposing the same procedural pending a judicial decision on the merits." Id. requirements it required in Freedman, instead con- cluding that the danger of allowing officials indefin- FN15. Following an administrative appeal, it itely to delay the granting of licenses for expressive was determined that Convoy had violated conduct would be adequately checked by providing a the prohibition against unlicensed dancers "[l]imitation on the time within which the licensor but not the six-foot rule. The suspension ac- must issue the license as well as the availability of cordingly was reduced from fourteen to sev- prompt judicial review." Id. at 230, 110 S.Ct. 596. en days.
B C Our court first applied FW/PBS's "prompt judicial re- Here, the district court relied on Convoy in support of view" requirement to the denial of a sexually oriented its conclusion that business license in Baby Tam & Co. v. City of Las [LVMC] § 6.35.140(D) provides erotic dance es- Vegas, 154 F.3d 1097, 1101 (9th Cir.1998) (striking tablishment licensees the opportunity to initiate ad- down a different licensing statute because it failed to equate judicial review of the City's suspension or provide for prompt judicial review of the denial of a revocation decision, but is unconstitutional in that license). Soon after our holding in Baby Tam, we it fails to provide either (1) a mechanism by which were presented with a challenge not to the procedures such review and determination will be prompt and governing the issuance of sexually oriented business adequate, or (2) a mechanism by which the status licenses, but rather to their revocation or suspension. quo is preserved pending judicial review and de- termination. In 4805 Convoy, Inc. v. City of San Diego, 183 F.3d But Convoy does not address the issue we face here: 1108 (9th Cir.1999), a nude dancing establishment the burdening of expressive conduct as a result of the had its license suspended for two weeks after an in- speaker's violation of a generally applicable provision spection revealed that the club had violated regula- barring the sale or consumption of alcohol in an es- tions that required that "nude dancers be licensed and tablishment lacking a valid liquor license. In short, that they stay at least six feet away from patrons." Id. the burdening of expressive conduct here is merely at 1110. [FN15] Convoy alleged that the procedures the incidental result of the City's clear authority to en- for suspending and revoking licenses "were unen- force its generally applicable liquor license require-
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ment. As Justice White noted in his partial concur- its general authority to discipline any licensee "for rence in FW/PBS, "the predicate identified in Freed- good cause" pursuant to LVMC § 6.02.330(H), but man for imposing its procedural requirements is ab- rather by counsel for TOT, who invoked the provi- sent in [such] cases." FW/PBS, 493 U.S. at 245, 110 sion to stay the imposition of the suspension for four- S.Ct. 596 (White, J., concurring in part and dissenting teen days. When the issue of when the three-week in part). Instead, we are faced with a situation in suspension of TOT's license would commence, which " 'nonspeech' conduct subject to a general reg- TOT's counsel interjected: ulation bears absolutely no connection to any ex- Just a moment. I think, you know, one of the prob- pressive activity," Arcara, 478 U.S. at 706 n. 3, 106 lems we have here is that you have entered this S.Ct. 3172--save only the mere happenstance that the finding and you are entering this penalty and this nonspeech conduct took place in the same location as complaint was drafted raising several different sec- that expressive conduct and led to the imposition of a tions of the code. Now, one of those sections, penalty that burdened it. Arcara, however, makes 6.35.100[sic], I believe, has an automatic fourteen clear that the presence of protected expressive con- day stay. And if you made the finding with respect duct alongside unprotected, illicit conduct in the to that section here, and I assume that you have ... same establishment does not bar enforcement of a [t]hen there's an automatic fourteen day stay that generally applicable law. Id. at 707, 106 S.Ct. 3172. goes in because of that. So ... what I would ask is that ... it commence when the findings in [sic] fact 1 and conclusions of law are submitted, but that's [4] TOT attempts to distinguish Arcara. First, TOT when the fourteen day stay kicks in, because there's notes that the closure remedy affirmed by the Court absolutely no reason to the contrary. in Arcara was the result of a generally applicable Thus, the Council allowed TOT greater procedural nuisance abatement statute, whereas the license sus- protections even though, by the terms of LVMC § pension in the instant case was achieved by way of 6.03.330, it was not required to do so. LVMC § 6.35.140, a provision that specifically ap- plies to nude dancing establishments. The City, ac- 2 cording to TOT, could have proceeded under gener- [5] TOT's second asserted distinction between this ally applicable nuisance abatement procedures like case and Arcara, namely that the nuisance abatement those employed in Arcara, but chose not to do so. proceedings in Arcara took place before a judge, is TOT, however, misreads the record. The City did similarly unavailing. For while TOT is correct that proceed under a generally applicable procedure. In- the closure of the business in Arcara was imposed deed, the "Complaint for Disciplinary Action" never following a civil action tried before a judge, the Su- mentions LVMC § 6.35.140 and instead relies upon preme Court most certainly did not hold that any the generally applicable LVMC § 6.02.330(H), which sanction pursuant to generally applicable regulations provides: "The licensee may be subject to disciplin- must first be subjected to judicial scrutiny if it hap- ary action by the City Council for good cause, which pens to burden expressive conduct. Indeed, the Court may, without limitation, include: [¶] ... The actual indicated that precisely the opposite was true: "If the business activity constitutes a public or private nuis- city imposed closure penalties for demonstrated Fire ance, or has been or is being conducted in an unlaw- Code violations or health hazards from inadequate ful, illegal or impermissible manner." Thus, the pro- sewage treatment, the First Amendment would not cedures employed by the City in this case--just like aid the owner of premises who had knowingly al- the liquor laws that triggered their application--are lowed such violations to persist." Arcara, 478 U.S. at laws of general applicability. Indeed, a review of the 705, 106 S.Ct. 3172. The Court's reference to viola- reporter's transcript *1073 of the hearing before the tions of the fire and health codes--determinations City Council indicates that the procedures of LVMC made at least as often by administrative bodies as ju- § 6.35.140 were raised not by the Council, which ac- dicial ones--indicates that the identity of the body im- cording to the initial complaint was proceeding under posing the sanction is irrelevant when the conduct
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that gives rise to the sanction "manifests absolutely however, a city were to use a nuisance statute as a no element of protected expression." Id. at 705, 106 pretext for closing down a bookstore because it sold S.Ct. 3172. Indeed, it is precisely because the con- indecent books ... the case would clearly implicate duct at issue in Arcara was not protected, that no spe- First Amendment concerns and require analysis un- cial procedural safeguards--such as prompt determin- der the appropriate First Amendment standard of re- ation by a judicial officer--were necessary. See FW/ view."). [FN16] PBS, 493 U.S. at 245, 110 S.Ct. 596 (White, J., con- curring in part and dissenting in part). ("[T]he predic- FN16. Because it relies upon an assumption ate identified in Freedman for imposing its procedur- that First Amendment scrutiny is required in al requirements is absent in [such] case[s]."). this case, we also reject TOT's due process challenge to LVMC § 6.35.140(D). 3 [6] TOT's third argument in favor of distinguishing V Arcara is that, unlike the bookstore in that case, TOT Because Arcara compels the conclusion that the is not "free to carry on its [protected expression] at City's sanctioning of TOT for repeated violations of another location." Arcara, 478 U.S. at 706 n. 2, 106 the liquor license requirement does not implicate the S.Ct. 3172. That is, because its license would be sus- First Amendment, the district court erred in conclud- pended for three weeks, and because one must have a ing that the procedural requirements identified by our license to exhibit nude dancing in Las Vegas, TOT Convoy decision are applicable here. Accordingly, contends that its First Amendment rights will be we must reverse that portion of the district court's or- completely suppressed for the duration of the suspen- der according TOT Convoy's procedural safeguards sion because the relocation option available to the and remand to that court for further proceedings not bookstore in Arcara is not open to TOT. It is clear inconsistent with this opinion. In light of our resolu- from the Court's opinion in Arcara, however, that, tion of the First Amendment issue, TOT's appeal of while salient, the bookstore's ability to reopen in an- the remedy is moot. other location *1074 was not dispositive. Two facts REVERSED and REMANDED. in the record convince us that, like the closure rem- edy approved by the Court in Arcara, "[t]he severity CANBY, Circuit Judge, dissenting. of th[e] burden [imposed on TOT] is dubious at best." Arcara, 478 U.S. at 705, 106 S.Ct. 3172. First, the I respectfully dissent from the majority opinion be- closure of the bookstore in Arcara was to last for a cause of a narrow but important point on which we period of one year, significantly longer than the differ. The majority relies on Arcara v. Cloud Books, three-week suspension at issue here. By imposing a Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 relatively brief suspension to punish its unlawful non- (1986), in which the Supreme Court held that the expressive activity, the City "properly sought to pro- First Amendment was not implicated when a county tect the environment of the community by directing instituted nuisance proceedings and closed a building the sanction at premises knowingly used for lawless used by an adult bookstore because it was serving as activities." Arcara, 478 U.S. at 707, 106 S.Ct. 3172. a place of prostitution. The majority here holds that And second, as with the action taken in Arcara, there Arcara applies because the City of Las Vegas pro- is absolutely no evidence that the suspension imposed ceeded against Talk of the Town under its general here was a pretext for the suppression of protected nuisance ordinance (although it also proceeded under expression. See Arcara, 478 U.S. at 707 n. 4, 106 a similar clause in the ordinance regulating erotic S.Ct. 3172 ("Were respondents able to establish the dancing establishments). The City is therefore merely existence of such a speech suppressive motivation or enforcing a generally applicable law directed at non- policy on the part of the District Attorney, they might speech activity, according to the majority. have a claim of selective prosecution."); id. at 708, 106 S.Ct. 3172 (O'Connor, J., concurring) ("If, The analogy to Arcara fails, in my opinion, because the City here did not merely shut down Talk of the
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Town's premises for two weeks because it permitted ther enforcement totally because the por- alcoholic beverages to be consumed there. Instead, it tions of the ordinance relating to prompt ju- suspended Talk of the Town's permit to present erotic dicial review (or its absence) were not sever- dances. This remedy is clearly directed at expressive able. I do not discuss the severability argu- activity. During the suspension, Talk of the Town ment because the majority did not reach it. It may still use its building for other purposes, even suffices to say that I conclude that the dis- though it has been the scene of liquor violations. trict court was correct. What it may not do is engage in the expressive activ- ity of presenting erotic dances, on the existing *1075 343 F.3d 1063, 03 Cal. Daily Op. Serv. 8240, 2003 premises or anywhere else in Las Vegas. Because the Daily Journal D.A.R. 10,321, 2003 Daily Journal suspension is directed at expression, the First D.A.R. 13,950 Amendment is necessarily implicated. Briefs and Other Related Documents (Back to top) In that situation, the precedent that should govern our • 2002 WL 32171417 (Appellate Brief) Reply Brief decision is 4805 Convoy, Inc. v. City of San Diego, of Appellees/Cross Appellants (Jul. 11, 183 F.3d 1108 (9th Cir.1999). In Convoy, the City 2002)Original Image of this Document (PDF) suspended a nude entertainment license because of the use of unlicensed dancers. We held that such a • 2002 WL 32171418 (Appellate Brief) Plaintiffs- suspension was subject to the First Amendment re- Appellants'/Cross Appellees' Answering/Reply Brief quirements of either a speedy judicial review or a (Jun. 07, 2002)Original Image of this Document stay of enforcement until the completion of judicial (PDF) review. See id. at 1114-16 (relying on FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 • 2002 WL 32171416 (Appellate Brief) Answering L.Ed.2d 603 (1990), and Baby Tam & Co. v. City of Brief and Cross-Appeal Opening Brief of Appellees/ Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998)). Be- Cross Appellants (Apr. 25, 2002)Original Image of cause the City of San Diego's scheme for suspending this Document (PDF) nude entertainment licenses did not meet these re- quirements, we enjoined enforcement of any license • 2002 WL 32171415 (Appellate Brief) Plaintiffs- suspension or revocation until completion of judicial Appellants' Opening Brief (Feb. 28, 2002)Original review. See id. at 1116. Image of this Document (PDF)
The district court in the present case properly con- • 01-16390 (Docket) (Jul. 19, 2001) cluded that the Las Vegas ordinance authorizing sus- • 01-16303 (Docket) (Jul. 12, 2001) pension of erotic dancing licenses failed to meet the First Amendment requirement of speedy judicial re- END OF DOCUMENT view or a stay of enforcement until completion of ju- dicial review. It therefore followed Convoy and en- joined any suspension or revocation of erotic dancing licenses prior to completion of judicial review. In so ruling, the district court honored the First Amend- ment limitations on prior restraint of expression. See Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). I would affirm the dis- trict court's judgment. [FN1]
FN1. Talk of the Town contends that the district court, having found the ordinance unconstitutional, should have enjoined fur-
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92k90.4(3) Most Cited Cases A time, place, and manner regulation of adult enter- Briefs and Other Related Documents tainment will be upheld under the First Amendment if it is designed to serve a substantial government in- United States Court of Appeals, terest and reasonable alternative avenues of commu- Seventh Circuit. nication remain available; additionally, a time, place, BEN'S BAR, INC., Plaintiff-Appellant, and manner regulation must be justified without ref- v. erence to the content of the regulated speech and nar- VILLAGE OF SOMERSET, Defendant-Appellee. rowly tailored to serve the government's interest. No. 01-4351. U.S.C.A. Const.Amend. 1. Argued May 30, 2002. [3] Constitutional Law 90.4(3) Decided Jan. 17, 2003. 92k90.4(3) Most Cited Cases Tavern and two of its nude dancers brought § 1983 The analytical frameworks and standards utilized in action against city, seeking declaratory and injunctive evaluating adult entertainment regulations under the relief against enforcement of ordinance that prohib- First Amendment, be they zoning ordinances or pub- ited sale, use, or consumption of alcohol on premises lic indecency statutes, are virtually indistinguishable. of "Sexually Oriented Businesses," alleging violation U.S.C.A. Const.Amend. 1. of their right to freedom of expression under First and [4] Constitutional Law 90.4(5) Fourteenth Amendments. The United States District 92k90.4(5) Most Cited Cases Court for the Western District of Wisconsin, Barbara A liquor regulation prohibiting the sale or consump- B. Crabb, Chief Judge, granted judgment for city. tion of alcohol on the premises of adult entertainment Plaintiffs appealed. The Court of Appeals, Manion, establishments does not violate the First Amendment Circuit Judge, held that municipal ordinance was if: (1) the state is regulating pursuant to a legitimate reasonable attempt to reduce or eliminate undesirable governmental power; (2) the regulation does not "secondary effects" associated with barroom adult en- completely prohibit adult entertainment; (3) the regu- tertainment. lation is aimed not at the suppression of expression, Affirmed. but rather at combating the negative secondary ef- fects caused by West Headnotes adult entertainment establishments; and (4) the reg- ulation is designed to serve a substantial government [1] Constitutional Law 90(3) interest, narrowly tailored, and reasonable alternative 92k90(3) Most Cited Cases avenues of communication remain available, or, al- A governmental regulation is sufficiently justified, ternatively, the regulation furthers an important or despite its incidental impact upon expressive conduct substantial government interest and the restriction on protected by the First Amendment, if: (1) it is within expressive conduct is no greater than is essential in the constitutional power of the government; (2) it fur- furtherance of that interest. U.S.C.A. Const.Amend. thers an important or substantial governmental in- 1. terest; (3) the governmental interest is unrelated to the suppression of free speech; and (4) the incidental [5] Constitutional Law 90.4(5) restriction on alleged First Amendment freedoms is 92k90.4(5) Most Cited Cases no greater than is essential to the furtherance of that interest. U.S.C.A. Const.Amend. 1. [5] Intoxicating Liquors 15 223k15 Most Cited Cases [2] Constitutional Law 90.4(3) Municipal ordinance, that restricted sale or consump-
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tion of alcohol on premises of businesses that served Regulations of adult entertainment receive intermedi- as venues for adult entertainment, was reasonable at- ate scrutiny under the First Amendment if they are tempt to reduce or eliminate undesirable "secondary designed not to suppress the "content" of erotic ex- effects" associated with barroom adult entertainment, pression, but rather to address the negative secondary in § 1983 lawsuit under free speech clause of First effects caused by such expression. U.S.C.A. Amendment; regulation of alcohol was within city's Const.Amend. 1. general police powers, regulation did not have any impact on tavern's ability to offer nude or semi-nude [9] Constitutional Law 90.4(5) dancing to its patrons, and liquor prohibition was no 92k90.4(5) Most Cited Cases greater than was essential to further city's substantial Regulations that prohibit nude dancing where alcohol interest in combating secondary effects resulting is served or consumed are independent of expressive from combination of nude and semi-nude dancing or communicative elements of conduct, and, there- and alcohol. U.S.C.A. Const.Amend. 1; 42 U.S.C.A. fore, are treated as if they were content-neutral under § 1983. the First Amendment. U.S.C.A. Const.Amend. 1.
[6] Constitutional Law 90.4(3) [10] Constitutional Law 90.4(5) 92k90.4(3) Most Cited Cases 92k90.4(5) Most Cited Cases The level of First Amendment scrutiny a court uses to In the context of the First Amendment, whether an determine whether a regulation of adult entertainment adult entertainment liquor regulation is treated as a is constitutional depends on the purpose for which time, place, and manner regulation, or as a regulation the regulation was adopted; if the regulation was en- of expressive conduct, a court is required to ask acted to restrict certain viewpoints or modes of ex- whether the municipality can demonstrate a connec- pression, it is presumptively invalid and subject to tion between the speech regulated by the ordinance strict scrutiny, if, on the other hand, the regulation and the secondary effects that motivated the adoption was adopted for a purpose unrelated to the suppres- of the ordinance. U.S.C.A. Const.Amend. 1. sion of expression, e.g., to regulate nonexpressive [11] Constitutional Law 90(3) conduct or the time, place, and manner of expressive 92k90(3) Most Cited Cases conduct, a court must apply a less demanding inter- In order to justify a content-based time, place, and mediate scrutiny. U.S.C.A. Const.Amend. 1. manner restriction under the First Amendment, or a [7] Administrative Law and Procedure 412.1 content-based regulation of expressive conduct, a 15Ak412.1 Most Cited Cases municipality must advance some basis to show that its regulation has the purpose and effect of suppress- [7] Municipal Corporations 120 ing secondary effects, while leaving the quantity and 268k120 Most Cited Cases accessibility of speech substantially intact; the regu- [7] Statutes 184 lation may identify the speech based on content, but 361k184 Most Cited Cases only as a shorthand for identifying the secondary ef- Federal courts evaluating the "predominant concerns" fects outside, and, furthermore, a municipality may behind the enactment of a statute, ordinance, regula- not assert that it will reduce secondary effects by re- tion, or the like, may do so by examining a wide vari- ducing speech in the same proportion. ety of materials including, but not limited to, the text U.S.C.A. Const.Amend. 1. of the regulation or ordinance, any preamble or ex- press legislative findings associated with it, and stud- [12] Constitutional Law 90.4(5) ies and information of which legislators were clearly 92k90.4(5) Most Cited Cases aware. The First Amendment does not entitle a tavern, its dancers, or its patrons, to have alcohol available dur- [8] Constitutional Law 90.4(3) ing a "presentation" of nude or semi-nude dancing; 92k90.4(3) Most Cited Cases even though the First Amendment does require that
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such establishments be given a reasonable opportun- izens of the Village of Somerset, and to establish ity to disseminate the speech at issue, a "reasonable reasonable and uniform regulations to prevent the de- opportunity" does not include a concern for economic leterious location and concentration of Sexually Ori- considerations. U.S.C.A. Const.Amend. 1. ented Businesses within the Village of Somerset." *704 Matthew A. Biegert (argued), Doar, Drill & The Ordinance regulates hours of operation, location, Skow, New Richmond, WI, for Plaintiff-Appellant. distance between patrons and performers, and other aspects concerning the operations of Sexually Ori- Ted Waskowski, Meg Vergeront (argued), Stafford ented Businesses. Rosenbaum, Madison, WI, for Defendant-Appellee. In the legislative findings section of the Ordinance, Before FLAUM, Chief Judge, and WOOD, Jr. and the Village noted that: MANION, Circuit Judges. Based on evidence concerning the adverse second- ary effects of Sexually Oriented Businesses on the MANION, Circuit Judge. community in reports made available to the Village Ben's Bar, Inc. operates a tavern in the Village of Board, and on the holdings and findings in Somerset, Wisconsin, that formerly served as a venue [numerous Supreme Court, federal appellate, and for nude and semi-nude dancing. After the Village state appellate judicial decisions], as well as studies enacted an ordinance that, in part, prohibited the sale, and summaries of studies conducted in other cities use, or consumption of alcohol on the premises of ... and findings reported in the Regulation of Adult "Sexually Oriented Businesses," Ben's Bar and two Entertainment Establishments in St. Croix County, of its dancers filed suit under 42 U.S.C. § 1983, seek- Wisconsin; and the Report of the Attorney Gener- ing declaratory and injunctive relief against the en- al's Working Group of Sexually Oriented Busi- forcement of the ordinance. The plaintiffs' complaint nesses ... the Village Board finds that: alleged, among other things, that the ordinance's alco- (a) Crime statistics show that all types of crimes, hol prohibition violated their right to freedom of ex- especially sex-related crimes, occur with more fre- pression under the First and Fourteenth Amendments quency in neighborhoods where sexually oriented to the United States Constitution. Shortly thereafter, businesses are located. plaintiffs filed a motion for a preliminary injunction, (b) Studies of the relationship between sexually which the district court denied. The Village then filed oriented businesses and neighborhood property val- a motion for summary judgment, which the district ues have found a negative impact on both residen- court granted. Ben's Bar appeals this decision. Be- tial and commercial property values. cause we conclude that the record sufficiently sup- (c) Sexually oriented businesses may contribute to ports the Village's claim that the liquor prohibition is an increased public health risk through the spread a reasonable attempt to reduce or eliminate the un- of sexually transmitted diseases. desirable "secondary effects" associated with bar- (d) There is an increase in the potential for infiltra- room adult entertainment, rather than an attempt to tion by organized crime for the purpose of unlaw- regulate the expressive content of nude dancing, we ful conduct. affirm the district court's judgment. (e) The consumption of alcoholic beverages on the premises of a Sexually Oriented Business exacer- I. bates the deleterious secondary effects of such On October 24, 2000, the Village of Somerset, a mu- businesses on the community. nicipal corporation located in St. Croix County, Wis- (Emphasis added.) consin ("Village"), enacted Ordinance A-472, entitled "Sexually *705 Oriented Business Ordinance" On February 2, 2001, two months before the Ordin- ("Ordinance"), for the purpose of regulating "Sexu- ance's effective date of April 1, 2001, Ben's Bar, Inc. ally Oriented Businesses and related activities to pro- ("Ben's Bar"), a tavern in the Village featuring nude mote the health, safety, and general welfare of the cit- and semi-nude barroom dance, [FN1] and two of its dancers, Shannen Richards and Jamie Sleight, filed a
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four-count complaint against the Village, pursuant to town may not, by ordinance, prohibit con- 42 U.S.C. § 1983 and Wis. Stat. § 806.04 (the State's duct which is the same as or similar to con- "Uniform Declaratory Judgments Act"), in the United duct prohibited by § 944.21 [i.e., the state's States District Court for the Western District of Wis- obscenity statute]." consin. The plaintiffs' complaint alleged that portions of the Ordinance were unconstitutional and preemp- On March 19, 2001, the plaintiffs moved for a pre- ted by Wisconsin law, sought a declaratory judgment liminary injunction against the enforcement of Sec- resolving those issues, and requested permanent in- tions 5(a) and (b) of the Ordinance. Section 5(a) junctive relief. Specifically, the plaintiffs argued that provides that "[i]t shall be a violation of this ordin- the Ordinance: (1) violated their right of free expres- ance for any Person to knowingly and intentionally sion under the First and Fourteenth Amendments to appear in a state of Nudity in a Sexually Oriented the United States Constitution and Article I, § 3 of Business." [FN5] Section 5(b) of the Ordinance the Wisconsin Constitution; [FN2] (2) violated their provides that "[t]he sale, use, or consumption of alco- right to *706 equal protection under the Fourteenth holic beverages on the Premises of a Sexually Ori- Amendment to the United States Constitution and ented Business is prohibited." Plaintiffs argued that Article 1, § 1 of the Wisconsin Constitution; [FN3] under § 66.0107(3) the Village was prohibited from (3) was an illegal "policy or custom" of the Village enacting these regulations of adult entertainment be- within the meaning of Monell v. New York City Dep't cause such conduct is already covered by the state's of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 obscenity statute--i.e., Wis. Stat. § 944.21. They also L.Ed.2d 611 (1978), and Owen v. City of Independ- contended that, notwithstanding § 66.0107, Sections ence, Missouri, 445 U.S. 622, 100 S.Ct. 1398, 63 5(a) and (b) violated their right to free expression un- L.Ed.2d 673 (1980); and (4) was an ultra vires legis- der the First and Fourteenth Amendments. lative act in violation of Wis. Stat. § 66.0107(3). FN5. Under Section 3(o) of the Ordinance, [FN4] "Nudity" or "state of nudity" is defined as FN1. Ben's Bar holds a liquor license issued "the appearance of the human bare anus, by the Village. anal cleft or cleavage, pubic area, male gen- itals, female genitals, or the nipple or areola FN2. Article 1, § 3 of the Wisconsin Consti- of the female breast, with less than a fully tution provides, inter alia, that "[e]very per- opaque covering; or showing of the covered son may freely speak, write and publish his male genitals in a discernibly turgid state." sentiments on all subjects, being responsible for the abuse of that right, and no laws shall On April 17, 2001, the district court denied plaintiffs' be passed to restrain or abridge the liberty of motion for preliminary injunctive relief, holding that speech or of the press." Wis. Const., art. I, § they did not have a reasonable chance of succeeding 3. on the merits of their complaint. The district court, utilizing the test established by this circuit in Schultz FN3. Article 1, § 1 of the Wisconsin Consti- v. City of Cumberland, 228 F.3d 831 (7th Cir.2000), tution provides that "[a]ll people are born held that Section 5(a)'s complete prohibition of full equally free and independent, and have cer- nudity in Sexually Oriented Businesses was constitu- tain inherent rights; among these are life, tional under the First Amendment because " 'limiting liberty and the pursuit of happiness; to se- erotic dancing to semi-nudity [i.e., pasties and G- cure these rights, governments are instituted, strings] represents a de minimis restriction that does deriving their just powers from the consent not unconstitutionally abridge expression.' " (quoting of the governed." Wis. Const., art. I, § 1. Schultz, 228 F.3d at 847). The district court also con- cluded that Section 5(b) passed constitutional muster FN4. Wis. Stat. § 66.0107(3) provides that under Schultz because it: (1) was justified without "[t]he board or council of a city, village or reference to the content of the regulated speech; (2)
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was narrowly tailored to serve a significant govern- ment context). The Supreme Court has further held ment interest in curbing adverse secondary effects; that "nude dancing ... is expressive conduct within the and (3) left open ample alternative channels for com- outer perimeters of the First Amendment, though we munication. Finally, the district court ruled that the view it as only marginally so." Barnes v. Glen Ordinance was not subject to preemption under Wis. Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 Stat. § 66.0107(3) because the plaintiffs had con- L.Ed.2d 504 (1991) (plurality opinion) (emphasis ad- ceded that: (1) the Ordinance only regulates non- ded). See also Blue Canary Corp. v. City of Milwau- obscene conduct; and (2) they were seeking only to kee, 251 F.3d 1121, 1124 (7th Cir.2001) (noting that provide non-obscene barroom dancing. "[t]he impairment of First Amendment values is slight to the point of being risible since the expressive Following unsuccessful attempts at settlement, on activity involved in the kind of striptease entertain- August 20, 2001, the Village moved for summary ment provided in a bar has at best a modest social judgment of plaintiffs' complaint. On November 23, value ...."). Thus, while few would argue "that erotic 2001, the district court granted the Village's motion, dancing ... represents high artistic expression," concluding that the Ordinance was constitutional for Schultz v. City of Cumberland, 228 F.3d 831, 839 the reasons expressed in its *707 April 17, 2001 or- (7th Cir.2000), the Supreme Court has, nevertheless, der. The court also addressed plaintiffs' equal protec- afforded such expression a diminished form of pro- tion claim, noting that they had waived the argument tection under the First Amendment. City of Erie v. by failing to develop it in their briefs. A judgment in Pap's A.M., 529 U.S. 277, 294, 120 S.Ct. 1382, 146 conformity with that order was entered on November L.Ed.2d 265 (2000) (plurality opinion) (holding that " 26, 2001. Ben's Bar appeals the district court's de- 'even though we recognize that the First Amendment cision granting summary judgment, [FN6] arguing will not tolerate the total suppression of erotic materi- that the court erred in concluding that Section 5(b) als that have some arguably artistic value, it is mani- does not constitute an unconstitutional restriction on fest that society's interest in protecting this type of ex- nude dancing under the First Amendment. See DiMa pression is of a wholly different, and lesser, mag- Corp. v. Town of Hallie, 185 F.3d 823, 827 n. 2 (7th nitude than the interest in untrammeled political de- Cir.1999) (holding that corporations may assert First bate ....' ") (citation omitted) (emphasis added). Amendment challenges). We review the district court's grant of summary judgment de novo, constru- This case requires us to determine whether a muni- ing all facts in favor of Ben's Bar, the non-moving cipality may restrict the sale or consumption of alco- party. Commercial Underwriters Ins. Co. v. Aires En- hol on the premises of businesses that serve as venues vtl. Services, Ltd., 259 F.3d 792, 795 (7th Cir.2001). for adult entertainment without violating the First Amendment. On appeal, Ben's Bar's primary argu- FN6. Plaintiffs Shannen Richards and Jamie ment is that Section 5(b) is unconstitutional because Sleight did not appeal the district court's the regulation has the "effect" of requiring its dancers judgment. to wear more attire than simply pasties and G-strings. [FN7] This argument *708 may be summed up as fol- II. lows: (1) Section 5(b) prohibits the sale, use, or con- The First Amendment provides, in part, that "Con- sumption of alcohol on the premises of Sexually Ori- gress shall make no law ... abridging the freedom of ented Businesses; [FN8] (2) Ben's Bar is an "Adult speech ...." U.S. Const. amend. I. The First Amend- cabaret," a sub-category of a Sexually Oriented Busi- ment's Free Speech Clause has been held by the Su- ness under the Ordinance, [FN9] if it features nude or preme Court to apply to the states through the Four- semi-nude dancers; (3) Section 3(o) of the Ordinance teenth Amendment's due process clause. Gitlow v. defines "seminude or semi-nudity" as "the exposure New York, 268 U.S. 652, 666, 45 S.Ct. 625, 69 L.Ed. of a bare male or female buttocks or the female breast 1138 (1925); DiMa Corp., 185 F.3d at 826 below a horizontal line across the top of the areola at (acknowledging the applicability of the Supreme its highest point with less than a complete and opaque Court's "incorporation doctrine" in the First Amend-
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covering"; and (4) Ben's Bar's dancers must wear play of the buttocks or of breast below the more attire than that required by the Ordinance's top of the areola"--i.e., "conservative two definition of "semi-nude or semi-nudity" in order for piece swimsuits, moderately low-cut the tavern to be able to sell alcohol during their per- blouses, short shorts, sheer fabrics and many formances and comply with Section 5(b)--i.e., more other types of clothing that are regularly than pasties and G-strings. Ben's Bar contends that worn in the community and are in main- Section 5(b) significantly impairs the conveyance of stream fashion." an erotic message by the tavern's dancers [FN10] and is not narrowly tailored to meet the Village's stated FN11. It is not entirely clear whether Ben's goal of reducing the adverse secondary effects associ- Bar is arguing that Section 5(b) is facially ated with adult entertainment. [FN11] unconstitutional or merely unconstitutional as applied. To the extent Ben's Bar seeks to FN7. The Supreme Court has, on two separ- bring a facial challenge, it faces an uphill ate occasions, held that requiring nude dan- battle. Ben's Bar does not argue that the reg- cers to wear pasties and G-strings does not ulation is vague or overbroad, and therefore violate the First Amendment. Pap's A.M., may only prevail if it can demonstrate "that 529 U.S. at 301, 120 S.Ct. 1382 (plurality no set of circumstances exists under which opinion), id. at 307-10, 120 S.Ct. 1382 the [regulation] would be valid." United (Scalia, J., concurring); Barnes, 501 U.S. at States v. Salerno, 481 U.S. 739, 745, 107 571-72, 111 S.Ct. 2456 (plurality opinion), S.Ct. 2095, 95 L.Ed.2d 697 (1987). See also id. at 582, 111 S.Ct. 2456 (Souter, J., con- Horton v. City of St. Augustine, Florida, 272 curring). F.3d 1318, 1331 (11th Cir.2001) (noting ex- ception to the Salerno rule; that, in the lim- FN8. Section 3(w) of the Ordinance defines ited context of the First Amendment, a "Sexually Oriented Business" as "an adult plaintiff may also bring a facial challenge arcade, adult bookstore or adult video store, for overbreadth and/or vagueness). adult cabaret, adult motel, adult motion pic- ture theater, adult theater, escort agency or The central fallacy in Ben's Bar's argument, however, sexual encounter center." is that Section 5(b) restricts the sale and consumption of alcoholic beverages in establishments that serve as FN9. Section 3(c) of the Ordinance is the venues for adult entertainment, not the attire of nude definition for "Adult cabaret," which "means dancers. In the absence of alcohol, Ben's Bar's dan- a nightclub, dance hall, bar, restaurant, or cers are free to express themselves all the way down similar commercial establishment that regu- to their pasties and G-strings. The question then is larly features: (1) persons who appear in a not whether the Village can require nude dancers to state of Nudity or Semi-nudity; or (2) live wear more attire than pasties and G-strings, but performances that are characterized by 'spe- whether it can prohibit Sexually Oriented Businesses cified sexual activities'; or (3) films, motion like Ben's Bar from selling alcoholic beverages in or- pictures, video cassettes, slides, or other der to prevent the deleterious secondary effects photographic reproductions that are charac- arising from the explosive combination of nude dan- terized by the depiction or description of cing and alcohol consumption. 'specified sexual activities' or Nudity or 'spe- cified anatomical areas.' " (Emphasis added.) While the question presented is rather straightfor- ward, the issue is significantly complicated by a long FN10. According to Ben's Bar, Section 5(b) series of Supreme Court decisions involving the ap- goes far beyond the pasties and G-strings plication of the First Amendment in the adult enter- regulation upheld by the Supreme Court in tainment*709 context. Because these decisions estab- Barnes and Pap's A.M., prohibiting "any dis- lish the analytical framework under which we must
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operate, our analysis necessarily begins with a com- bars and nightclubs to sell liquor by the drink." 409 prehensive summary of the Supreme Court's jurispru- U.S. at 114, 93 S.Ct. 390. For this reason, the vast dence in this area. majority of the Court's opinion addressed the States' power to regulate "intoxicating liquors" under the A. California v. LaRue Twenty-first Amendment. [FN13] See generally id. at 115-19, 93 S.Ct. 390. Specifically, the LaRue Court Initially, we note that the Supreme Court addressed concluded that: the precise issue before us in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), FN13. The second section of the Twenty- when it considered the constitutionality of regulations first Amendment provides that "[t]he trans- promulgated by California's Department of Alcoholic portation or importation into any State, Ter- Beverages ("Department") that prohibited bars and ritory, or possession of the United States for nightclubs from featuring varying degrees of adult delivery or use therein of intoxicating li- entertainment. [FN12] The Department enacted the quors, in violation of the laws thereof, is regulations, after holding public hearings, because it hereby prohibited." U.S. Const. amend. concluded that the consumption of alcohol in adult XXI, § 2. entertainment establishments resulted in a number of adverse secondary effects--e.g., acts of public inde- While the States, vested as they are with general cency and sex-related crimes. As in this case, adult police power, require no specific grant of authority entertainment businesses filed suit alleging that the in the Federal Constitution to legislate with respect regulations violated the First Amendment. Id. at 110, to matters traditionally within the scope of the po- 93 S.Ct. 390. lice power, the broad sweep of the Twenty-first Amendment has been recognized as conferring FN12. The regulations at issue in LaRue something more than the normal state authority prohibited: (a) The performance of acts, or over public health, welfare, and morals. simulated acts, of sexual intercourse, mas- 409 U.S. at 114, 93 S.Ct. 390. turbation, sodomy, bestiality, oral copula- tion, flagellation or any sexual acts which In doing so, the LaRue Court rejected the plaintiffs' are prohibited by law; contention that the state's regulatory authority over (b) The actual or simulated touching, caress- "intoxicating beverages" was limited, as applied to ing or fondling on the breast, buttocks, anus adult entertainment establishments, to "either dealing or genitals; with the problem it confronted within the limits of (c) The actual or simulated displaying of the our decisions as to obscenity [i.e., Roth v. United pubic hair, anus, vulva or genitals; States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (d) The permitting by a licensee of any per- (1957) and its progeny] or in accordance with the son to remain in or upon the licensed limits prescribed for dealing with some forms of premises who exposes to public view any communicative conduct in [United States v. O'Brien, portion of his or her genitals or anus; and, by 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) a companion section; ]," 409 U.S. at 116, 93 S.Ct. 390, reasoning " '[w]e (e) The displaying of films or pictures de- *710 cannot accept the view that an apparently limit- picting acts a live performance of which was less variety of conduct can be labeled 'speech' prohibited by the regulations quoted above. whenever the person engaging in the conduct intends 409 U.S. at 411-12. thereby to express an idea.' " Id. at 117- 18, 93 S.Ct. 390 (citation omitted). The Court found that "the sub- The Supreme Court began its analysis in LaRue by stance of the regulations struck down prohibits li- stressing that "[t]he state regulations here challenged censed bars or nightclubs from displaying, either in come to us, not in the context of a dramatic perform- the form of movies or live entertainment, 'perform- ance in a theater, but rather in a context of licensing ances' that partake more of gross sexuality than of
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communication." Id. at 118, 93 S.Ct. 390. The Court Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, also concluded that although "at least some of the 134 L.Ed.2d 711 (1996), however, the precedential performances to which these regulations address value of the reasoning anchoring the Court's holding themselves are within the limits of the constitutional in LaRue was severely diminished. In 44 Liquormart, protection of freedom of expression, the critical fact the Court held that Rhode Island's statutory prohibi- is that California has not forbidden these perform- tion against advertisements providing the public with ances across the board ... [but] has merely proscribed accurate information about retail prices of alcoholic such performances in establishments that it licenses beverages was "an abridgement of speech protected to sell liquor by the drink." Id. The LaRue Court by the First Amendment and that is not shielded from ended its analysis by noting that "[t]he Department's constitutional scrutiny by the Twenty-first Amend- conclusion, embodied in these regulations, that cer- ment." Id. at 489, 116 S.Ct. 1495. In reaching this tain sexual performances and the dispensation of li- conclusion, the Court noted: quor by the drink ought not to occur at premises that Rhode Island argues, and the Court of Appeals have licenses was not an irrational one," and that agreed, that in this case the Twenty-first Amend- "[g]iven the added presumption in favor of the valid- ment tilts the First Amendment analysis in the ity of the state regulation in this area that the Twenty- State's favor [of the advertising ban] .... [T]he first Amendment requires, we cannot hold that the Court of Appeals relied on our decision in Califor- regulations on their face violate the Federal Constitu- nia v. LaRue ... [where] five Members of the Court tion." Id. at 118-19, 93 S.Ct. 390. [FN14] relied on the Twenty-first Amendment to buttress the conclusion that the First Amendment did not FN14. See also City of Newport v. Iac- invalidate California's prohibition of certain obucci, 479 U.S. 92, 95, 107 S.Ct. 383, 93 grossly sexual exhibitions in premises licensed to L.Ed.2d 334 (1986) (upholding the constitu- serve alcoholic beverages. Specifically, the opinion tionality of a city ordinance prohibiting nude stated that the Twenty-first Amendment required or nearly nude dancing in local establish- that the prohibition be given an added presumption ments licensed to sell liquor for consump- in favor of its validity. *711 We are now persuaded tion on the premises); New York State Li- that the Court's analysis in LaRue would have led quor Auth. v. Bellanca, 452 U.S. 714, 717, to precisely the same result if it had placed no reli- 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981) ance on the Twenty-first Amendment. Entirely (holding that "[t]he State's power to ban the apart from the Twenty-first Amendment, the State sale of alcoholic beverages entirely includes has ample power to prohibit the sale of alcoholic the lesser power to ban the sale of liquor on beverages in inappropriate locations. Moreover, in premises where topless dancing occurs"); subsequent cases, the Court has recognized that Doran v. Salem Inn. Inc., 422 U.S. 922, the States' inherent police powers provide ample 932-33, 95 S.Ct. 2561, 45 L.Ed.2d 648 authority to restrict the kind of "bacchanalian rev- (1975) (noting that under LaRue states may elries" described in the LaRue opinion regardless ban nude dancing as part of their liquor li- of whether alcoholic beverages are involved.... See, censing programs); City of Kenosha v. e.g., Young v. American Mini Theatres, Inc., 427 Bruno, 412 U.S. 507, 515, 93 S.Ct. 2222, 37 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); L.Ed.2d 109 (1973) (noting that "regulations Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 prohibiting the sale of liquor by the drink on S.Ct. 2456, 115 L.Ed.2d 504 (1991). As we re- premises where there were nude but not ne- cently noted: "LaRue did not involve commercial cessarily obscene performances [are] fa- speech about alcohol, but instead concerned the cially constitutional"). regulation of nude dancing in places where alcohol was served." Rubin v. Coors Brewing Co., 514 B. 44 Liquormart, Inc. v. Rhode Island U.S., at 483, n. 2, 115 S.Ct. 1585. Without ques- After the Supreme Court's decision in 44 Liquormart, tioning the holding of LaRue, we now disavow its
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reasoning insofar as it relied on the Twenty-first mart Court's citation of the post-LaRue decisions of Amendment. Young v. American Mini Theatres, Inc., 427 U.S. 50, Id. at 515-16, 116 S.Ct. 1495 (emphasis added). 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582, 111 S.Ct. The foregoing makes clear that LaRue's holding re- 2456, 115 L.Ed.2d 504 (1991), in support of its asser- mains valid after 44 Liquormart, but for a different tion that "the States' inherent police powers provide reason. The 44 Liquormart Court concluded that "the ample authority to restrict the kind of 'bacchanalian Court's analysis in LaRue would have led to precisely revelries' *712 described in the LaRue opinion re- the same result if it had placed no reliance on the gardless of whether alcoholic beverages are in- Twenty-first Amendment," 517 U.S. at 515, 116 volved." 44 Liquormart, 517 U.S. at 515, 116 S.Ct. S.Ct. 1495 because "[e]ntirely apart from the Twenty- 1495. In American Mini Theatres and Barnes, the Su- first Amendment, the State has ample power to pro- preme Court held that the adult entertainment regula- hibit the sale of alcoholic beverages in inappropriate tions at issue were subject to intermediate scrutiny locations." Id. In making this assertion, the 44 Li- for purposes of determining their constitutionality un- quormart Court relied on the LaRue Court's conclu- der the First Amendment. American Mini Theatres, sion that: "the States, vested as they are with general 427 U.S. at 79, 96 S.Ct. 2440 (Powell, J., concurring) police power, require no specific grant of authority in ("it is appropriate to analyze the permissibility of De- the Federal Constitution to legislate with respect to troit's action [zoning ordinance separating adult theat- matters traditionally within the scope of the police ers from residential neighborhoods and churches] un- power ... [i.e.,] the normal state authority over public der the four-part test of United States v. O'Brien ...."); health, welfare, and morals." 409 U.S. at 114, 93 Barnes, 501 U.S. at 582, 111 S.Ct. 2456 (Souter, J., S.Ct. 390. But in recent years, the Supreme Court has concurring) ("I also agree with the plurality that the held, on a number of occasions, that "non-obscene" appropriate analysis to determine the actual protec- adult entertainment is entitled to a minimal degree of tion required by the First Amendment is the four-part protection under the First Amendment, even in rela- enquiry described in United States v. O'Brien ...."). tion to laws enacted pursuant to a State's general po- lice powers. City of Los Angeles v. Alameda Books, Like the Fourth and Eleventh Circuits, we conclude Inc., 535 U.S. 425, 122 S.Ct. 1728, 1739, 152 that after 44 Liquormart state regulations prohibiting L.Ed.2d 670 (2002) (Kennedy, J., concurring) (noting the sale or consumption of alcohol on the premises of that "if a city can decrease the crime and blight asso- adult entertainment establishments must be analyzed ciated with [adult entertainment] speech by the tradi- in light of American Mini Theatres and Barnes, as tional exercise of its zoning power, and at the same modified by their respective progeny. See Giovani time leave the quantity and accessibility of speech Carandola Ltd. v. Bason, 303 F.3d 507, 513 n. 2 & substantially undiminished, there is no First Amend- 519 (4th Cir.2002) (noting the 44 Liquormart Court's ment objection"); Pap's A.M., 529 U.S. at 296, 120 reliance on American Mini Theatres and Barnes and S.Ct. 1382 (plurality opinion) (holding that city's holding that "the result reached in LaRue remains public indecency ordinance, enacted to "protect pub- sound not because a state enjoys any special authority lic health and safety," must be analyzed as a content- when it burdens speech by restricting the sale of alco- neutral regulation of expressive conduct); id. at 310, hol, but rather because the regulation in LaRue com- 120 S.Ct. 1382 (Souter, J., concurring in part and dis- plied with the First Amendment"); Sammy's of Mo- senting in part). bile, Ltd. v. City of Mobile, 140 F.3d 993, 996 (11th Cir.1998) (holding that "the Supreme Court [in 44 Li- Given the foregoing, it is difficult to ascertain exactly quormart ] ... reaffirmed the precedential value of what "analysis" the 44 Liquormart Court was refer- LaRue and the Barnes-O'Brien test .... [and] reaf- ring to as having persuaded it that the LaRue Court firmed that the Barnes-O'Brien intermediate level of would have reached the same result even without the review applies to [adult entertainment liquor regula- "added presumption" of the Twenty-first Amend- tions]"). But see BZAPS, Inc. v. City of Mankato, 268 ment. We find noteworthy, however, the 44 Liquor-
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F.3d 603, 608 (8th Cir.2001) (upholding the constitu- Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 tionality of an adult entertainment liquor regulation L.Ed.2d 310 (1976), and Barnes v. Glen Theatre, solely on the basis of LaRue's holding). Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), providing two separate but similar routes. We reach this conclusion notwithstanding the fact [FN15] First, the American Mini Theatres decision, that in LaRue the Supreme Court upheld the constitu- as modified by the Court's subsequent decisions in tionality of the adult entertainment liquor regulations City of Renton v. Playtime Theatres, Inc., 475 U.S. using the rational basis test, see 409 U.S. at 115-16, 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), and City of 93 S.Ct. 390, and explicitly refused to subject the Los Angeles v. Alameda Books, Inc., 535 U.S. 425, regulations to O'Brien's intermediate scrutiny test. Id. 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), delineates at 116, 93 S.Ct. 390 ("We do not believe that the state the standards for evaluating the constitutionality of regulatory authority in this case was limited to ... adult entertainment zoning ordinances. Second, the dealing with the problem it confronted ... in accord- Barnes decision, as modified by the Court's recent ance with the limits prescribed for dealing with some decision in City of Erie v. Pap's A.M., 529 U.S. 277, forms of communicative conduct in [O'Brien ]"). We 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000), provides do so because the 44 Liquormart Court's reference to guidelines for analyzing the constitutionality of pub- American Mini Theatres and Barnes makes clear that lic indecency statutes. the Court is of the opinion that adult entertainment li- quor regulations, like the ones at issue in LaRue, will FN15. See J & B Social Club No. 1, Inc. v. pass constitutional muster even under the heightened City of Mobile, 966 F.Supp. 1131, 1136 intermediate scrutiny tests outlined in those cases. (S.D.Ala.1996) (Hand, J.).
In making this determination, we are by no means [1] The analytical frameworks utilized in both lines suggesting that the Supreme Court's decisions in of jurisprudence can be traced back to the four-part American Mini Theatres and Barnes are of greater test enunciated by the Supreme Court in United precedential value than LaRue. On the contrary, as States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, noted infra, our decision in this case is largely dic- 20 L.Ed.2d 672 (1968), where the Court held that a tated by LaRue's holding. At the time LaRue was de- statute prohibiting the destruction or mutilation of cided, however, the Supreme Court had not yet estab- draft cards was a content-neutral regulation of ex- lished a framework for analyzing the constitutionality pressive conduct. American Mini Theatres, 427 U.S. of adult entertainment regulations. This changed with at 79, 96 S.Ct. 2440 (Powell, J., concurring) the Court's subsequent decisions in American Mini (applying O'Brien test); Barnes, 501 U.S. at 582, 111 Theatres and Barnes, cases that serve as a point of S.Ct. 2456 (Souter, J., concurring) (same). Under the origin for two distinct, yet overlapping, lines of juris- O'Brien test, a governmental regulation is sufficiently prudence that address the degree of First Amendment justified, despite its incidental impact upon express- *713 protection afforded to adult entertainment. Giv- ive conduct protected by the First Amendment, if: (1) en the significant development of the law in this area it is within the constitutional power of the govern- since LaRue, as well as the Court's refashioning of ment; (2) it furthers an important or substantial gov- LaRue's reasoning in 44 Liquormart, we conclude ernmental interest; (3) the governmental interest is that it is necessary to apply LaRue's holding in the unrelated to the suppression of free speech; and (4) context of this precedent. the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the further- C. The 44 Liquormart "road map" ance of that interest. O'Brien, 391 U.S. at 377, 88 S.Ct. 1673. The 44 Liquormart decision established a road map of sorts for analyzing the constitutionality of adult [2] While the O'Brien test is still utilized by the Su- entertainment liquor regulations, i.e., the Supreme preme Court in analyzing the constitutionality of pub- Court's decisions in Young v. American Mini lic indecency statutes, see Pap's A.M., 529 U.S. at
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289, 120 S.Ct. 1382 (plurality opinion); id. at 310, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988); 120 S.Ct. 1382 (Souter, J., concurring in part and dis- Pleasureland Museum, Inc. v. Beutter, 288 senting in part), the Court currently evaluates adult F.3d 988, 1000 (7th Cir.2002). entertainment zoning ordinances as time, place, and manner regulations. Alameda Books, 122 S.Ct. at [3] In this case, however, we are not dealing with a 1733 (plurality opinion); id. at 1741 (Kennedy, J., zoning ordinance or a public indecency statute. In- concurring); Renton, 475 U.S. at 46-47, 106 S.Ct. stead, we are called upon to evaluate the constitution- 925. A time, place, and manner regulation of adult ality of an adult entertainment liquor regulation. entertainment will be upheld if it is "designed to Therefore, it is not entirely clear whether Section 5(b) serve a substantial government interest and ... reason- should be analyzed as a time, place, and manner re- able alternative avenues of communication remain[ ] striction or as a regulation of expressive conduct un- available." Alameda Books, 122 S.Ct. at 1734. Addi- der O'Brien's four-part test; or for that matter whether tionally, a time, place, and manner regulation must be the tests are entirely interchangeable. See LLEH, Inc. justified without reference to the content of the regu- v. Wichita County, Texas, 289 F.3d 358, 365 (5th lated speech and narrowly tailored to serve the gov- Cir.), cert. denied, 537 U.S. 1045, 123 S.Ct. 621, 154 ernment's *714 interest. Schultz, 228 F.3d at 845. L.Ed.2d 517 (2002) (noting uncertainty as to which [FN16] test courts should use in analyzing the constitutional- ity of adult entertainment regulations: "the test for FN16. In Renton, the Supreme Court created time, place, or manner regulations, described in some confusion as to the appropriate test for Renton ... or the four-part test for incidental limita- analyzing time, place, and manner regula- tions on First Amendment freedoms, established in tions by asserting that "time, place, and O'Brien ...."). For all practical purposes, however, the manner regulations are acceptable so long as distinction is irrelevant because the Supreme Court they are designed to serve a substantial gov- has held that the time, place, and manner test embod- ernmental interest and do not unreasonably ies much of the same standards as those set forth in limit alternative avenues of communica- United States v. O'Brien. Barnes, 501 U.S. at 566, tion." 475 U.S. at 47, 106 S.Ct. 925. 111 S.Ct. 2456 (plurality opinion) (relying on Clark However, as we emphasized in City of Wat- v. Community for Creative Non-Violence, 468 U.S. seka v. Illinois Public Action Council, 796 288, 298- 99, 104 S.Ct. 3065, 82 L.Ed.2d 221 F.2d 1547 (7th Cir.1986), "[t]he Supreme (1984)); LLEH, 289 F.3d at 365-66 (same). [FN17] Court does not always spell out the 'nar- Moreover, as explained infra, two of the Supreme rowly tailored' step as part of its standard for Court's post-44 Liquormart decisions--Pap's A.M. evaluating time, place, and manner restric- and Alameda Books--make it abundantly clear that tions." Id. at 1553. Moreover, a close exam- the analytical frameworks and standards utilized by ination of Renton reveals that the Court did the Court in evaluating adult entertainment regula- consider whether the zoning ordinance at is- tions, be they zoning ordinances or public indecency sue was narrowly tailored. 475 U.S. at 52, statutes, are virtually indistinguishable. We, there- 106 S.Ct. 925 ("[t]he Renton ordinance is fore, conclude that it is appropriate to analyze the 'narrowly tailored' to affect only that cat- constitutionality of Section 5(b) using the standards egory of theaters shown to produce the un- articulated by the Supreme Court in the five decisions wanted secondary effects ...."). In any event, comprising the American Mini Theatres and Barnes both the Supreme Court and this circuit have lines of jurisprudence. Thus, before proceeding to the continued to apply the "narrowly tailored" merits of Ben's Bar's argument, we begin our analysis step to time, place, and manner regulations. by summarizing the reasoning and holdings of these See Ward v. Rock Against Racism, 491 U.S. decisions. 781, 796, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989); Frisby v. Schultz, 487 U.S. 474, 481, FN17. But see Alameda Books, 122 S.Ct at 1745 n. 2 (Souter, J., dissenting) (joined by
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Stevens, J. and Ginsburg, J.) (noting that lowed a reasonable opportunity to experiment with "[b]ecause Renton called its secondary-ef- solutions to admittedly serious problems." Id. The fects ordinance a mere, time, place, or man- plurality concluded its analysis by noting that "what ner restriction and thereby glossed over the is ultimately at stake is nothing more than a limitation role of content in secondary-effects zoning on the place where adult films may be exhibited ...." ... I believe the soft focus of its statement of Id. [FN19] the middle-tier test should be rejected in fa- vor of the ... [O'Brien ] formulation ... a FN18. The Court also concluded that the closer relative of secondary effects zoning zoning ordinance did not violate the Due than mere time, place, and manner regula- Process and Equal Protection Clauses of the tions, as the Court ... implicitly recognized Fourteenth Amendment, American Mini [in Pap's A.M.]."). Theatres, 427 U.S. at 61, 72-73, 96 S.Ct. 2440; see generally id. at 73-84, 96 S.Ct. *715 (1) Young v. American Mini Theatres, Inc. 2440 (Powell, J., concurring), issues that are not before us on appeal. In Young v. American Mini Theatres, 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), the Supreme FN19. The American Mini Theatres plurality Court addressed, inter alia, whether a zoning ordin- also noted, in a footnote, that the city had ance enacted by the City of Detroit violated the First enacted the zoning ordinance because of its Amendment. [FN18] Id. at 58, 96 S.Ct. 2440. The determination that "a concentration of 'adult' "dispersal" ordinance at issue prohibited the opera- movie theaters causes the area to deteriorate tion of any adult entertainment movie theater within and become a focus of crime, effects which 1,000 feet of any two other "regulated uses" (e.g., are not attributable to theaters showing other adult bookstores, bars, hotels, pawnshops), or within types of films," 427 U.S. at 71 n. 34, 96 500 feet of a residential area. Id. at 52, 96 S.Ct. 2440. S.Ct. 2440 (emphasis added), noting "[i]t is A majority of the Court upheld the constitutionality this secondary effect which these zoning or- of the ordinance, but in doing so did not agree on a dinances attempt to avoid, not the dissemin- single rationale for the decision. Id. at 62-63, 96 S.Ct. ation of 'offensive' speech." Id. (emphasis 2440 (plurality opinion); id. at 84, 96 S.Ct. 2440 added). (Powell, J. concurring). The plurality concluded that "apart from the fact that the ordinance treats adult Justice Powell concurred in the judgment of the theaters differently from other theaters and the fact Court, agreeing with the plurality that the zoning or- that the classification is predicated on the content of dinance "is addressed only to the places at which this material shown in respective theaters, the regulation type of expression may be presented, a restriction that of the place where such films may be exhibited does does not interfere with content." Id. at 78-79, 96 S.Ct. not offend the First Amendment." Id. at 63, 96 S.Ct. 2440. He disagreed, however, with the plurality's de- 2440 (emphasis added). In reaching this conclusion, termination that "nonobscene, erotic materials may be the plurality emphasized that "even though we recog- treated differently under First Amendment principles nize that the First Amendment will not tolerate the from other forms of protected expression." Id. at 73 total suppression of erotic materials that have some n. 1, 96 S.Ct. 2440. Instead, Justice Powell concluded arguably artistic value, it is manifest that society's in- that it was appropriate to analyze and uphold the con- terest in protecting this type of expression is of a stitutionality of the zoning ordinance under the four- wholly different, and lesser, magnitude than the in- part test enunciated in United States v. O'Brien, 391 terest in untrammeled political debate." Id. at 70, 96 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Id. S.Ct. 2440. The plurality also found that the city's at 79, 96 S.Ct. 2440. [FN20] zoning ordinance was justified by its interest in "pre- FN20. Under Marks v. United States, 430 serving the character of its neighborhoods," id. at 71, U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 96 S.Ct. 2440, and therefore "the city must be al-
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(1977), Justice Powell's concurrence is the 47, 106 S.Ct. 925. The Court concluded that the zon- controlling opinion in American Mini ing ordinance met this test, noting that a " 'city's in- Theatres, as the most narrow opinion joining terest in attempting to preserve the quality of urban four other Justices in the judgment of the life is one that must be accorded high respect.' " id. at Court. Entertainment Concepts, Inc., III v. 50, 106 S.Ct. 925 (quoting American Mini Theatres, Maciejewski, 631 F.2d 497, 504 (7th 427 U.S. at 71, 96 S.Ct. 2440), [FN22] and that the Cir.1980). ordinance allowed for reasonable alternative avenues of communication because there was "ample, access- *716 (2) City of Renton v. Playtime Theatres, Inc. ible real estate" open for use as adult theater sites. Id. at 53, 96 S.Ct. 2440. The Supreme Court's decision in American Mini Theatres laid the groundwork for the Court's decision FN21. Falling in between American Mini in City of Renton v. Playtime Theatres, Inc., 475 U.S. Theatres and Renton is the Supreme Court's 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). [FN21] In decision in Schad v. Borough Mount Eph- Renton, the Court considered the validity of an adult raim, 452 U.S. 61, 101 S.Ct. 2176, 68 entertainment zoning ordinance virtually indistin- L.Ed.2d 671 (1981), where the Court struck guishable from the one at issue in American Mini down, on First Amendment grounds, a zon- Theatres. Id. at 46, 106 S.Ct. 925. Unlike the Americ- ing ordinance that did not--like the ordin- an Mini Theatres plurality, however, the Renton ance in American Mini Theatres--require the Court outlined an analytical framework for evaluat- dispersal of adult theaters, but instead pro- ing the constitutionality of these ordinances. The hibited them altogether. Id. at 71-72, 96 Court's analysis proceeded in three steps. First, the S.Ct. 2440 (plurality opinion); id. at 77, 96 Court found that the ordinance did not ban adult S.Ct. 2440 (Blackmun, J., concurring); id. at theaters altogether, but merely required that they be 79, 96 S.Ct. 2440 (Powell, J., concurring). distanced from certain sensitive locations. Id. Next, The only significance of Schad, for purpose the Court considered whether the ordinance was con- of our analysis, is that the holding of that tent-neutral or content-based. If an ordinance is con- case serves as the basis for the first step in tent-based, it is presumptively invalid and subject to the Renton framework--i.e., does the ordin- strict scrutiny. Id. at 46-47, 106 S.Ct. 925. On the ance completely prohibit the expressive con- other hand, if an ordinance is aimed not at the content duct at issue? See Alameda Books, 122 S.Ct. of the films shown at adult theaters, but rather at at 1733 (noting that the first step in the combating the secondary effects of such theaters on Renton framework was the Court's determin- the surrounding community (e.g., increased crime ation that "the ordinance did not ban adult rates, diminished property values), it will be treated theaters altogether, but merely required that as a content-neutral regulation. Id. In Renton, the they be distanced from certain sensitive loc- Court held that the zoning ordinance was a "content ations"); Renton, 475 U.S. at 46, 106 S.Ct. neutral" regulation of speech because while "the or- 925. dinance treats theaters that specialize in adult films differently from other kinds of theaters .... [it] is FN22. See also American Mini Theatres, aimed not at the content of the films shown ... but 427 U.S. at 80, 96 S.Ct. 2440 (Powell, J., rather at the secondary effects of such theaters on the concurring) ("Nor is there doubt that the in- surrounding community." 475 U.S. at 47, 106 S.Ct. terests furthered by this ordinance are both 925. Finally, given this finding, the Renton Court important and substantial"). found that the zoning ordinance would be upheld as a valid time, place and manner regulation, id. at 46, The Supreme Court's decision in Renton is also not- 106 S.Ct. 925, if it "was designed to serve a substan- able because in addition to upholding the constitu- tial governmental interest and [did] not unreasonably tionality of the zoning ordinance, the Court also held limit alternative avenues of communication." Id. at that the *717 First Amendment did not require muni-
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cipalities, before enacting such ordinances, to con- S.Ct. 2456, because: (1) the statute was "clearly with- duct new studies or produce evidence independent of in the constitutional power of the State and furthers that already generated by other cities (whether sum- substantial governmental interests [i.e., protecting so- marized in judicial decisions or not), Renton, 475 cietal order and morality]," id. at 568, 111 S.Ct. U.S. at 51-52, 106 S.Ct. 925, so long as "whatever 2456; (2) the state's interest in protecting societal or- evidence [a] city relies upon is reasonably believed to der and morality by enforcing the statute to prohibit be relevant to the problem that the city addresses." Id. nude dancing was "unrelated to the suppression of free expression" because "the requirement that the (3) Barnes v. Glen Theatre, Inc. dancers don pasties and G-strings does not deprive the dance of whatever erotic message it conveys; it In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 simply makes the message slightly less graphic [and] S.Ct. 2456, 115 L.Ed.2d 504 (1991), the Supreme [t]he perceived evil that Indiana seeks to address is Court was called upon to address the constitutionality not erotic dancing, but public nudity," id. at 570-71, of Indiana's public indecency statute. In a splintered 111 S.Ct. 2456; (3) the incidental restriction on First decision, a narrow majority of the Court held that the Amendment freedom placed on nude dancing by the statute--which prohibited nudity in public places- statute was no greater than essential to the further- -could be enforced against establishments featuring ance of the governmental interest because "[t]he stat- nude dancing, i.e., by requiring dancers to wear pas- utory prohibition is not a means to some greater end, ties and G-strings during their performances, without but an end in itself," id. at 571-72, 111 S.Ct. 2456; violating the First Amendment's right of free expres- and (4) the public indecency statute was narrowly sion. Id. at 565, 111 S.Ct. 2456 (plurality opinion); tailored because "Indiana's requirement that the dan- id. at 572, 111 S.Ct. 2456 (Scalia, J. concurring); id. cers wear pasties and G-strings is modest, and the at 582, 585, 111 S.Ct. 2456 (Souter, J. concurring). bare minimum necessary *718 to achieve the State's Of that majority, however, only three Justices agreed purpose." Id. at 572, 111 S.Ct. 2456 (emphasis ad- on a single rationale. ded). The plurality--Chief Justice Rehnquist and Justices FN23. In doing so, the Barnes plurality O'Connor and Kennedy-- began its analysis by em- noted that the O'Brien test and the time, phasizing that while "nude dancing ... is expressive place, and manner test utilized by the Court conduct within the outer perimeters of the First in Renton have "been interpreted to embody Amendment .... [w]e must [still] determine the level much the same standards ...." 501 U.S. at of protection to be afforded to the expressive conduct 566, 111 S.Ct. 2456. at issue, and ... whether the Indiana statute is an im- permissible infringement of that protected activity." Justice Scalia concurred in the judgment of the Court, Barnes, 501 U.S. at 566, 111 S.Ct. 2456. The plural- but in doing so expressed his opinion that "the chal- ity noted that the public indecency statute did not lenged regulation must be upheld not because it sur- "ban [ ] nude dancing, as such, but ... proscribed pub- vives some lower level of First Amendment scrutiny, lic nudity across the board," id., and that "the Su- but because, as a general law regulating conduct and preme Court of Indiana has construed the Indiana not specifically directed at expression, it is not sub- statute to preclude nudity in what are essentially ject to First Amendment scrutiny at all." Id. at 572, places of public accommodation." Id. Next, the plur- 111 S.Ct. 2456. Justice Souter also concurred in the ality concluded that the public indecency statute judgment of the Court, agreeing with the plurality should be analyzed under O'Brien's four-part test for that "the appropriate analysis to determine the actual evaluating regulations of expressive conduct protec- protection required by the First Amendment is the ted by the First Amendment. [FN23] Applying this four-part inquiry described in United States v. test, the plurality found "that Indiana's public inde- O'Brien." Id. at 582, 111 S.Ct. 2456. He wrote separ- cency statute [was] justified despite its incidental lim- ately, however, to rest his concurrence in the judg- itations on some expressive activity," id. at 567, 111 ment, "not on the possible sufficiency of society's
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moral views to justify the limitations at issue, but on and dissenting in part) ("Erie's stated interest in com- the State's substantial interest in combating the sec- bating the secondary effects associated with nude ondary effects of adult entertainment establishments dancing establishments is an interest unrelated to the ...." Id. [FN24] In doing so, Justice Souter relied suppression of expression ...."), thus satisfying the heavily on the Court's decision in Renton. Id. at first and third prongs of the O'Brien test. 583-87, 111 S.Ct. 2456. A majority of the Justices in Pap's A.M. could not, FN24. Under Marks, 430 U.S. at 193, 97 however, agree on whether the public indecency stat- S.Ct. 990, Justice Souter's concurrence is the ute furthered an important or substantial interest of controlling opinion in Barnes, as the most the city (second prong of O'Brien ), and if so whether narrow opinion joining the judgment of the the incidental restriction on nude dancing was no Court. Schultz, 228 F.3d at 842 n. 2; DiMa greater than that essential to the furtherance of this Corp., 185 F.3d at 830. interest (fourth prong). The plurality--Chief Justice Rehnquist and Justices O'Connor, Kennedy, *719 and (4) City of Erie v. Pap's A.M. Breyer--concluded that Erie's public indecency ordin- ance furthered an important or substantial govern- The Supreme Court revisited the Barnes holding in ment interest under O'Brien because "[t]he asserted City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. interests of regulating conduct through a public nud- 1382, 146 L.Ed.2d 265 (2000), where a majority of ity ban and of combating the harmful secondary ef- the Court upheld the constitutionality of a public in- fects associated with nude dancing [e.g., the in- decency ordinance "strikingly similar" to the one at creased crime generated by such establishments] are issue in Barnes. Id. at 283, 120 S.Ct. 1382. Unlike undeniably important." Pap's A.M., 529 U.S. at 296, Barnes, however, in Pap's A.M. five justices agreed 120 S.Ct. 1382. [FN25] The Pap's A.M. plurality also that the proper framework for analyzing public inde- found that Erie's public indecency statute was no cency statutes was O'Brien's four-part test. Id. at 289, greater than that essential to furthering the city's in- 120 S.Ct. 1382 (plurality opinion) ("We now clarify terest in combating the harmful secondary effects of that government restrictions on public nudity ... nude dancing because: should be evaluated under the framework set forth in O'Brien for content-neutral restrictions on symbolic FN25. The Pap's A.M. plurality's reliance on speech"); id. at 310, 120 S.Ct. 1382 (Souter, J., con- Renton's secondary effects doctrine is signi- curring in part and dissenting in part) (agreeing with ficant because it marks a departure from the the "analytical approach that the plurality employs in Barnes plurality's determination that a pub- deciding this case [i.e., the O'Brien test]"). See also lic indecency ordinance may be justified by Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1278 a State's interest in protecting societal order (11th Cir.2001) (holding that "[a]lthough no opinion and morality, Barnes, 501 U.S. at 568, 111 in [Pap's A.M.] was joined by more than four S.Ct. 2456, and an adoption of the approach Justices, a majority of the Court basically agreed on advocated by Justice Souter in his concur- how these kinds of statutes should be analyzed [i.e., rence in that case. Id. at 582, 111 S.Ct. 2456. O'Brien's four-part test]"). A majority of the Justices also agreed that combating the adverse secondary ef- The ordinance regulates conduct, and any incident- fects of nude dancing was within the city's constitu- al impact on the expressive element of nude dan- tional powers and unrelated to the suppression of free cing is de minimis. The requirement that dancers expression, Pap's A.M., 529 U.S. at 296, 301, 120 wear pasties and G-strings is a minimal restriction S.Ct. 1382 (plurality opinion) ("Erie's efforts to pro- in furtherance of the asserted government interests, tect public health and safety are clearly within the and the restriction leaves ample capacity to convey city's police powers .... [and] [t]he ordinance is unre- the dancer's erotic message. lated to the suppression of free expression ...."); id. at 529 U.S. at 301, 120 S.Ct. 1382. 310, 120 S.Ct. 1382 (Souter, J., concurring in part
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Justice Scalia, joined by Justice Thomas, agreed with dinance serves a substantial government interest un- the plurality that the ordinance should be upheld, but der Renton." 122 S.Ct. at 1733. The plurality--written wrote separately to emphasize that " 'as a general law by Justice O'Connor and joined by Chief Justice regulating conduct and not specifically directed at ex- Rehnquist and Justices Scalia and Thomas- pression, [the city's public indecency ordinance] is -concluded that whether a municipal ordinance is " not subject to First Amendment scrutiny at all,' " 'designed to serve a substantial government interest Pap's A.M., 529 U.S. at 307-08, 120 S.Ct. 1382 and does not unreasonably limit alternative avenues (quoting Barnes, 501 U.S. at 572, 111 S.Ct. 2456 of communication' ... requires [courts to] ... ask[ ] (Scalia, J., concurring)), and that "[t]he traditional whether the municipality can demonstrate a connec- power of government to foster good morals (bonos tion between the speech regulated by the ordinance mores ), and the acceptability of the traditional judg- and the secondary effects that motivated the adoption ment (if Erie wishes to endorse it) that nude public of the ordinance." Id. at 1737. According to the plur- dancing itself is immoral, have not been repealed by ality, this requirement is met if the evidence upon the First Amendment." Id. at 310, 120 S.Ct. 1382. which the municipality enacted the regulation " 'is Justice Souter concurred in part and dissented in part, reasonably believed to be relevant' for demonstrating stressing his belief that "the current record [does not] a connection between [secondary effects producing] allow us to say that the city has made a sufficient speech and a substantial, independent government in- evidentiary showing to sustain its regulation ...." Id. terest." Id. at 1736. The plurality stressed that once a at 310-11, 120 S.Ct. 1382. Justice Stevens, joined by municipality presents a rational basis for addressing Justice Ginsburg, dissented, asserting that the ordin- the secondary effects of adult entertainment through ance was a "patently invalid" content-based ban on evidence that "fairly support[s] the municipality's ra- nude dancing that censored protected speech. Id. at tionale for its ordinance," id., the plaintiff challenging 331-32, 120 S.Ct. 1382. Because the plurality's de- the constitutionality of the ordinance must "cast dir- cision offers the narrowest ground for the Supreme ect doubt on this rationale, either by demonstrating Court's holding in Pap's A.M., we find the reasoning that the municipality's evidence does not support its of that opinion to be controlling. Marks, 430 U.S. at rationale or by furnishing evidence that disputes the 193, 97 S.Ct. 990. municipality's factual findings." Id. If a plaintiff fails to cast doubt on the municipality's rationale, the in- (5) City of Los Angeles v. Alameda Books, Inc. quiry is over and "the municipality meets the stand- ard set forth in Renton." Id. If, however, a plaintiff This past term in City of Los Angeles v. Alameda succeeds "in casting doubt on a municipality's ra- Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 tionale in either manner, the burden shifts back to the L.Ed.2d 670 (2002), the Supreme Court upheld, at municipality to supplement the record with evidence the summary judgment stage, an ordinance prohibit- renewing support for a theory that justifies its ordin- ing multiple adult entertainment businesses from op- ance." Id. Because the plurality concluded that the erating in the same building. Id. at 1733. The Court city, for purposes of summary judgment, had com- reached this conclusion despite the fact that the city plied with the evidentiary requirement outlined in had not, prior to the enactment of the ordinance, con- Renton, id., it remanded the case for further proceed- ducted or relied upon studies (or other evidence) spe- ings. Id. at 1738. cifically demonstrating that forbidding multiple adult entertainment businesses from operating under one Justice Scalia, in addition to joining the plurality roof reduces secondary effects. Id. at 1736 (plurality opinion, wrote separately to emphasize that while the opinion); id. at 1744 (Kennedy, J., concurring). Once plurality's opinion "represents a correct application of again, however, a majority of the Court could not our jurisprudence concerning the regulation of the agree on a single rationale for this decision. 'secondary effects' of pornographic speech .... our First Amendment traditions make 'secondary effects' *720 The primary issue in Alameda Books was the analysis quite unnecessary. The Constitution does not appropriate standard "for determining whether an or-
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prevent those communities that wish to do so from or content based." 122 S.Ct. at 1734. In his regulating, or indeed entirely suppressing, the busi- concurrence, Justice Kennedy joined the ness of pandering sex." Alameda Books, 122 S.Ct. at four dissenters, id. at 1744-45, in jettisoning 1738-39. the "content neutral" label, noting that the "fiction" of adult entertainment zoning or- Justice Kennedy concurred in the judgment of the dinances being "content neutral ... is perhaps Court, but writing separately because he concluded, more confusing than helpful .... These ordin- inter alia, that "the plurality's application of Renton ances are content based and we should call might constitute a subtle expansion, with which I do them so." Id. at 1741. In reaching this con- not concur." Id. at 1739. He began, however, by ex- clusion, Justice Kennedy emphasized that pressing his agreement with the plurality that the sec- "whether a statute is content neutral or con- ondary effects resulting from "high concentrations of tent based is something that can be determ- adult businesses can damage the value and integrity ined on the face of it; if the statute describes of a neighborhood," id., stressing "[t]he damage is speech by content then it is content based." measurable; it is all too real." Id. He also agreed with Id. Justice Kennedy concluded, however, the plurality that "[t]he law does not require a city to that an adult entertainment zoning ordinance ignore these consequences if it uses its zoning power is not subject to strict scrutiny simply be- in a reasonable way to ameliorate them without sup- cause it "identifies the problem outside by pressing speech," id., emphasizing that "[a] city's 'in- reference to the speech inside," id. at 1740, terest in attempting to preserve the quality of urban and, as such, "the central holding of Renton life is one that must be accorded high respect.' " Id. is sound: A zoning restriction that is de- (quoting American Mini Theatres, 427 U.S. at 71, 96 signed to decrease secondary effects and not S.Ct. 2440). In Justice Kennedy's opinion, if a muni- speech should be subject to intermediate cipality ameliorates the secondary effects of adult en- rather than strict scrutiny." Id. at 1741. Thus, tertainment through "the traditional exercise of its while the label has changed, the substance of zoning power, and at the same time leaves the quant- Renton's second step remains the same. ity and accessibility of the speech *721 substantially undiminished, there is no First Amendment objection Based on the foregoing principles, Justice Kennedy .... even if the measure identifies the problem outside believes that two questions must be asked by a court by reference to the speech inside--that is, even if the seeking to determine whether a zoning ordinance reg- measure is in that sense content based." [FN26] Id. ulating adult entertainment is designed to meet a sub- Like the plurality, he concluded that "[a] zoning law stantial government interest: (1) "what proposition need not be blind to the secondary effects of adult does a city need to advance in order to sustain a sec- speech, so long as the purpose of the law is not to ondary-effects ordinance?", Alameda Books, 122 S.Ct suppress it." Id. at 1740. He also expressed his belief at 1741; and (2) "how much evidence is required to that zoning regulations "do not automatically raise support the proposition?" Id. According to Justice the specter of impermissible content discrimination, Kennedy, the plurality skipped the second question, even if they are content based, because they have a giving the correct answer, but neglected to give suffi- prima facie legitimate purpose: to limit the negative cient "attention" to the first question, id., i.e., "the externalities of land use ... [and that] [t]he zoning claim a city must make to justify a content-based or- context provides a built-in legitimate rationale, which dinance." Id. at 1742. In his view, "a city must ad- rebuts the usual presumption that content-based re- vance some basis to show that its regulation has the strictions are unconstitutional." Id. at 1741. purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech FN26. The plurality in Alameda Books char- substantially intact," id., and "[t]he rationale of the acterized the second step of the Renton ordinance must be that it will suppress secondary ef- framework as follows: "[w]e next consider[ fects ... not ... speech." Id. Justice Kennedy's primary ] whether the ordinance [is] content neutral
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area of disagreement with the plurality's analysis was [4] Based on the road map provided by the Supreme that, in his opinion, it failed to "address how speech Court in 44 Liquormart, as described supra, we con- [would] fare under the city's ordinance." Id. clude that a liquor regulation prohibiting the sale or consumption of alcohol on the premises of adult en- The differences between Justice Kennedy's concur- tertainment establishments is constitutional if: (1) the rence and the plurality's opinion are, however, quite State is regulating pursuant to a legitimate govern- subtle. Justice Kennedy's position is not that a muni- mental power, O'Brien, 391 U.S. at 377, 88 S.Ct. cipality must prove the efficacy of its rationale for re- 1673; (2) the regulation does not completely prohibit ducing secondary effects prior to implementation, as adult entertainment, Renton, 475 U.S. at 46, 106 S.Ct. Justice Souter and the other dissenters would require, 925; (3) the regulation is aimed not at the suppression see generally Alameda Books, 122 S.Ct. at 1744-51; of expression, but rather at combating the negative but that a municipality's rationale must be premised secondary effects caused by adult entertainment es- on the theory that it "may reduce the costs of second- tablishments, Pap's A.M., 529 U.S. at 289-91, 120 ary effects without substantially reducing speech." Id. S.Ct. 1382; [FN27] and (4) the regulation is designed at 1742 (emphasis added). Significantly, while to serve a substantial government interest, narrowly Justice Kennedy believed that the plurality did not tailored, and reasonable alternative avenues of com- adequately address this aspect of the city's rationale, munication remain available, see Alameda Books, he agreed *722 with the plurality's overall conclusion 122 S.Ct. at 1734 (plurality opinion); id. at 1739- 44 that a municipality's initial burden of demonstrating a (Kennedy, J. concurring); or, alternatively, the regu- substantial government interest in regulating the ad- lation furthers an important or substantial govern- verse secondary effects associated with adult enter- ment interest and the restriction on expressive con- tainment is slight, noting: duct is no greater than is essential in furtherance of As to this, we have consistently held that a city that interest. Pap's A.M., 529 U.S. at 296, 301 must have latitude to experiment, at least at the (plurality opinion); id. at 310, 120 S.Ct. 1382 (Souter, outset, and that very little evidence is required .... J., concurring in part and dissenting in part). As a general matter, courts should not be in the business of second-guessing fact-bound empirical FN27. This prong is, for all practical pur- assessments of city planners. The Los Angeles City poses, identical to the Alameda Books plur- Council knows the streets of Los Angeles better ality's inquiry into whether the zoning ordin- than we do. It is entitled to rely on that knowledge; ance "was content neutral or content based." and if its inferences appear reasonable, we should 122 S.Ct. at 1733-34. Although a majority of not say there is no basis for its conclusion. the Justices no longer employ the content Id. at 1742-43 (emphasis added). neutral label when evaluating the constitu- tionality of a "secondary effects" ordinance, The dissenting opinion of Justice Souter, joined by the ultimate inquiry remains the same. See Justices Stevens and Ginsburg in full and by Justice supra n. 26. Breyer with respect to part II, asserted that the Court should have struck down the ordinance. Alameda [5] Applying the foregoing analytical framework Books, 122 S.Ct. at 1747 (Souter, J., dissenting). here, we conclude that Section 5(b) does not violate the First Amendment. To begin with, the Village's Because Justice Kennedy's concurrence is the nar- regulation of alcohol sales and consumption in "inap- rowest opinion joining the judgment of the Court in propriate locations" is clearly within its general po- Alameda Books, we conclude that it is the controlling lice powers. 44 Liquormart, 517 U.S. at 515, 116 opinion. Marks, 430 U.S. at 193, 97 S.Ct. 990. S.Ct. 1495; LaRue, 409 U.S. at 114, 93 S.Ct. 390. As such, the Village enacted Section 5(b) "within the D. Does Section 5(b)'s prohibition of alcohol on constitutional power of the Government." Pap's A.M., the premises of Sexually Oriented Businesses viol- 529 U.S. at 296, 120 S.Ct. 1382 (holding that a muni- ate the First Amendment? cipality's efforts to protect the public's health and
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safety through its *723 general police powers satis- stricted "the place or manner of nude dancing without fies this requirement); O'Brien, 391 U.S. at 377, 88 regulating any particular message it might convey"). S.Ct. 1673 (same). Moreover, it is clear that the "predominant concerns" motivating the Village's enactment of Section 5(b) " [6] The next two prongs of our test concern the level 'were with the secondary effects of adult [speech], of constitutional scrutiny that must be applied to Sec- and not with the content of adult [speech].' " Alameda tion 5(b). The level of First Amendment scrutiny a Books, 122 S.Ct. at 1737 (plurality opinion) (quoting court uses to determine whether a regulation of adult Renton, 475 U.S. at 47, 106 S.Ct. 925); id. at 1739-41 entertainment is constitutional depends on the pur- (Kennedy, J., concurring). [FN28] The Village en- pose for which the regulation was adopted. If the reg- acted the Ordinance because it believed "there is con- ulation was enacted to restrict certain viewpoints or vincing documented evidence that Sexually Oriented modes of expression, it is presumptively invalid and Businesses have a deleterious effect on both existing subject to strict scrutiny. Texas v. Johnson, 491 U.S. businesses around them and the surrounding residen- 397, 403, 411-12, 109 S.Ct. 2533, 105 L.Ed.2d 342 tial areas adjacent to them, causing increased crime (1989); Renton, 475 U.S. at 46-47, 106 S.Ct. 925. If, and the downgrading of property values." Specific- on the other hand, the regulation was adopted for a ally, the Village concluded that "the consumption of purpose unrelated to the suppression of expression- alcoholic beverages on the premises of a Sexually -e.g., to regulate nonexpressive conduct or the time, Oriented Business exacerbates the deleterious sec- place, and manner of expressive conduct--a court ondary effects of such businesses on the community." must apply a less demanding intermediate scrutiny. Additionally, in passing the Ordinance, the Village 491 U.S. at 406-07, 109 S.Ct. 2533; Pap's A.M., 529 emphasized (in the text of the Ordinance) that its in- U.S. at 289, 120 S.Ct. 1382 (plurality opinion); id. at tention was not *724 "to suppress any speech activit- 310, 120 S.Ct. 1382 (Souter, J., concurring in part ies protected by the First Amendment, but to enact and dissenting in part). a[n] ... ordinance which addresses the secondary ef- fects of Sexually Oriented Businesses," and that it [7][8] The Supreme Court has held that regulations of was not attempting to "restrict or deny access by adult entertainment receive intermediate scrutiny if adults to sexually oriented-materials protected by the they are designed not to suppress the "content" of First Amendment ...." erotic expression, but rather to address the negative secondary effects caused by such expression. FN28. Federal courts evaluating the "predom- Alameda Books, 122 S.Ct. at 1733-34 (plurality opin- inant concerns" behind the enactment of a ion), id. at 1741 (Kennedy, J., concurring); Renton, statute, ordinance, regulation, or the like, 475 U.S. at 48, 106 S.Ct. 925. Here, Section 5(b), may do so by examining a wide variety of like the liquor regulations at issue in LaRue, 409 U.S. materials including, but not limited to, the at 118, 93 S.Ct. 390, does not completely prohibit text of the regulation or ordinance, any pre- Ben's Bar's dancers from conveying an erotic mes- amble or express legislative findings associ- sage; it merely prohibits alcohol from being sold or ated with it, and studies and information of consumed on the premises of adult entertainment es- which legislators were clearly aware. Ranch tablishments. See, e.g., Wise Enterprises, Inc. v. Uni- House, 238 F.3d at 1280. fied Gov't of Athens-Clarke County, Georgia, 217 F.3d 1360, 1365 (11th Cir.2000) (holding that "[t]he [9] For all of the foregoing reasons, Section 5(b) is ordinance does not prohibit all nude dancing, but properly analyzed as a content-based time, place, and only restricts nude dancing in those locations where manner restriction, or as a content-based regulation the unwanted secondary effects arise"); Sammy's of of expressive conduct, and therefore is subject only to Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 998 intermediate scrutiny. Alameda Books, 122 S.Ct. at (11th Cir.1998) (holding that ordinance prohibiting 1733-36 (plurality opinion), id. at 1741 (Kennedy, J. alcohol on the premises of adult entertainment estab- concurring); Pap's A.M., 529 U.S. at 294-96, 120 lishments did not ban nude dancing, but merely re- S.Ct. 1382 (plurality opinion), id. at 310, 120 S.Ct.
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1382 (Souter, J., concurring in part and dissenting in the ordinance and the secondary effects that motiv- part). [FN29] See also Artistic Entm't, Inc. v. City of ated the adoption of the ordinance." Alameda Books, Warner Robins, 223 F.3d 1306, 1308-09 (11th 122 S.Ct. at 1737 (plurality opinion). At this stage, Cir.2000) (holding that "a prohibition on the sale of courts must "examine evidence concerning regulated alcohol at adult entertainment venues ... [is] content- speech and secondary effects." Id. In conducting this neutral and subject to the O'Brien test"); Wise Enter- inquiry, we are required, as previously noted, to an- prises, 217 F.3d at 1364 (holding that "[i]t is clear swer two questions: (1) "what proposition does a city from these [legislative] statements the County's or- need to advance in order to sustain a secondary-ef- dinance is aimed at the secondary effects of nude fects ordinance?"; and (2) "how much evidence is re- dancing combined with the consumption of alcoholic quired to support the proposition?" Id. at 1741 beverages, not at the message conveyed by nude dan- (Kennedy, J. concurring). [FN30] cing .... [T]he district court was [therefore] correct in [applying] ... intermediate scrutiny ...."). Regulations FN30. As noted supra, under Marks v. that prohibit nude dancing where alcohol is served or United States, 430 U.S. 188, 97 S.Ct. 990, consumed are independent of expressive or commu- 51 L.Ed.2d 260 (1977), Justice Kennedy's nicative elements of conduct, and therefore are concurrence is the controlling opinion, as treated as if they were content-neutral. Wise Enter- the most narrow opinion joining the judg- prises, 217 F.3d at 1363. ment of the Court.
FN29. Compare G.Q. Gentlemen's Quarters, *725 [11] At the outset, we note that in order to justi- Inc. v. City of Lake Ozark, Missouri, 83 fy a content-based time, place, and manner restriction S.W.3d 98, 103 (2002) (holding that because or a content-based regulation of expressive conduct, a the city presented no evidence that its pur- municipality "must advance some basis to show that pose in enacting an ordinance restricting its regulation has the purpose and effect of suppress- nudity in establishments where alcoholic ing secondary effects [i.e., is designed to serve, or beverages are sold "was to prevent the neg- furthers, a substantial or important governmental in- ative secondary effects associated with erot- terest], while leaving the quantity and accessibility of ic dancing establishments, and, thus, that the speech substantially intact [i.e., that the regulation is ordinance was unrelated to the suppression narrowly tailored and does not unreasonably limit al- of expression, the City had the heavy burden ternative avenues of communication, or, alternat- of justifying the ordinance under the strict ively, that the restriction on expressive conduct is no scrutiny standard"). greater than is essential in furtherance of that in- terest]." [FN31] Alameda Books, 122 S.Ct. at 1741 [10] This brings us to the heart of our analysis: (Kennedy, J. concurring). The regulation may identi- whether Section 5(b) is designed to serve a substan- fy the speech based on content, "but only as a short- tial government interest, narrowly tailored, and does hand for identifying the secondary effects outside." not unreasonably limit alternative avenues of com- Id. A municipality "may not assert that it will reduce munication, or, alternatively, furthers an important or secondary effects by reducing speech in the same substantial government interest and the restriction on proportion." Id. Thus, the rationale behind the enact- expressive conduct is no greater than is essential in ment of Section 5(b) must be that it will suppress sec- furtherance of that interest. As previously noted, it is ondary effects, not speech. Id. not entirely clear whether an adult entertainment li- quor regulation is to be treated as a time, place, and FN31. In this case, it is unnecessary to con- manner regulation, or instead as a regulation of ex- clusively resolve which of these two stand- pressive conduct under O'Brien. See, e.g., LLEH, ards is applicable. As explained infra, Sec- Inc., 289 F.3d at 365. But in either case, we are re- tion 5(b)' s alcohol prohibition is, as a prac- quired to ask "whether the municipality can demon- tical matter, the least restrictive means of strate a connection between the speech regulated by furthering the Village's interest in combating
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the secondary effects resulting from the ances and the dispensation of liquor by the drink combination of adult entertainment and al- ought not to occur at premises that have licenses was cohol consumption, and therefore satisfies not an irrational *726 one." 409 U.S. at 118, 93 S.Ct. either standard. 390. Because the adult entertainment at issue in this case is of the same character as that at issue in The Village's rationale in support of Section 5(b) is LaRue, it was entirely reasonable for the Village to that the liquor prohibition will significantly reduce conclude that barroom nude dancing was likely to the secondary effects that naturally result from com- produce adverse secondary effects at the local level, bining adult entertainment with the consumption of even in the absence of specific studies on the matter. alcoholic beverages without substantially diminishing Alameda Books, 122 S.Ct. at 1736-37 (plurality opin- the availability of adult entertainment, in this case ion) (adopting view of plurality in Pap's A.M. as to nude and semi-nude dancing. In enacting the Ordin- the evidentiary requirement for adult entertainment ance, the Village Board relied on numerous judicial cases), id. at 1741 (Kennedy, J., concurring) decisions, studies from 11 different cities, and "find- (agreeing with the plurality on this point, as a fifth ings reported in the Regulation of Adult Entertain- vote); Pap's A.M., 529 U.S. at 296-97, 120 S.Ct. 1382 ment Establishments of St. Croix, Wisconsin; and the (plurality opinion) (same); Giovani, 303 F.3d at 516 Report of the Attorney General's Working Group of (same). In fact, the Supreme Court has gone so far as Sexually Oriented Businesses (June 6, 1989, State of to assert that "[c]ommon sense indicates that any Minnesota)," to support its conclusion that adult en- form of nudity coupled with alcohol in a public place tertainment produces adverse secondary effects. begets undesirable behavior." Bellanca, 452 U.S. at 718, 101 S.Ct. 2599. See also Blue Canary, 251 F.3d Ben's Bar argues that the Village may not rely on pri- at 1124 (noting that "[l]iquor and sex are an explosive or judicial decisions or the experiences of other mu- combination"); Department of Alcoholic Beverage nicipalities, but must instead conduct its own studies, Control v. Alcoholic Beverage Control Appeals Bd. at the local level, to determine whether adverse sec- of California, 99 Cal.App.4th 880, 121 Cal.Rptr.2d ondary effects result when liquor is served on the 729, 737 (2002) (same). For these reasons, we con- premises of adult entertainment establishments. This clude that the evidentiary record fairly supports the view, however, has been expressly (and repeatedly) Village's proffered rationale for Section 5(b), and that rejected by the Supreme Court. Alameda Books, 122 Ben's Bar has failed "to cast direct doubt on this ra- S.Ct. at 1743 (Kennedy, J. concurring) (holding that " tionale either by demonstrating the [Village's] evid- '[t]he First Amendment does not require a city, before ence does not support its rationale or by furnishing enacting ... an [adult entertainment secondary effects] evidence that disputes the [Village's] factual findings ordinance to conduct new studies or produce evid- ...." Alameda Books, 122 S.Ct. at 1736. ence independent of that already generated by other cities, so long as whatever evidence the city relies Ben's Bar also contends that Section 5(b) is not nar- upon is reasonably believed to be relevant to the rowly tailored because the Village offered no evid- problem that the city addresses.' ") (quoting Renton, ence that "the incidental restrictions placed on Ben's 475 U.S. at 51-52, 106 S.Ct. 925); Barnes, 501 U.S. [Bar], over and above the pasties and G-strings re- at 584, 111 S.Ct. 2456 (Souter, J. concurring) (same). quirement, ameliorate any purported negative sec- ondary effects." This argument, however, is problem- Ben's Bar also contends that the Village failed to atic for several reasons, two of which we will address meet its burden of demonstrating the constitutionality briefly. of Section 5(b) because "the Village's evidentiary re- cord did not include any written reports relating spe- [12] First, as previously noted, Section 5(b) does not cifically to the effects of serving alcohol in establish- impose any restrictions whatsoever on a dancer's abil- ments offering nude and semi-nude dancing." In ity to convey an erotic message. Instead, the regula- LaRue, however, the Supreme Court explicitly held tion prohibits Sexually Oriented Businesses like that a State's conclusion that "certain sexual perform- Ben's Bar from serving alcoholic beverages to its pat-
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rons during a dancer's performance. This is not a re- sales bring in. striction on erotic expression, but a prohibition of (Emphasis added.) nonexpressive conduct (i.e., serving and consuming alcohol) during the presentation of expressive con- Second, Section 5(b)'s alcohol prohibition, like the duct. The First Amendment does not entitle Ben's one in LaRue, is limited to adult entertainment estab- Bar, its dancers, or its patrons, to have alcohol avail- lishments, and does not apply to: able during a "presentation" of nude or semi-nude [T]heaters, performing arts centers, civic centers, dancing. See Gary v. City of Warner Robins, Geor- and dinner theaters where live dance, ballet, music, gia, 311 F.3d 1334, 1340 (11th Cir.2002) (holding and dramatic performances of serious artistic merit that ordinance prohibiting persons under the age of are offered on a regular basis; and in which the pre- 21 from entering or working at "any establishment ... dominant business or attraction is not the offering which sells alcohol by the drink for consumption on of entertainment which is intended for the sexual premises" did not violate an underage nude dancer's interests or titillation of customers; and where the First Amendment right to free expression because she establishment is not distinguished by an emphasis "remains free to observe and engage in nude dancing, on or the advertising or promotion of nude or semi- but she simply cannot do so ... in establishments that nude performances. [FN33] primarily derive their sales from alcoholic beverages FN33. This section of the Ordinance also consumed on the premises"); Sammy's of Mobile, 140 emphasizes that "[w]hile expressive live F.3d at 999 (holding that while nude dancing is en- nudity may occur within these establish- titled to a degree of protection under the Supreme ments [those noted in section (6) ], this or- Court's First Amendment jurisprudence, "we are un- dinance seeks only to minimize and prevent aware of any constitutional right to drink while the secondary effects of Sexually Oriented watching nude dancing"); Dept. of Alcoholic Bever- Businesses on the community. Negative sec- age Control, 99 Cal.App.4th at 895, 121 Cal.Rptr.2d ondary effects have not been associated with 729 (noting that "[t]he State ... has not prohibited these establishments." dancers from performing with the utmost level of erotic expression. They are simply forbidden to do so Ordinance A-472(6). Compare Giovani, 303 F.3d at in establishments which serve alcohol, and the Con- 515 (noting that lack of evidentiary support for adult stitution is thereby not offended"). What the First entertainment liquor regulations "might not pose a Amendment does require is that establishments like problem if the challenged restrictions applied only to Ben's Bar be given "a *727 'reasonable opportunity' bars and clubs that present nude or topless dancing"). to disseminate the speech at issue." North Ave. Novel- ties, Inc. v. City of Chicago, 88 F.3d 441, 445 (7th Finally, we note that Section 5(b)'s liquor prohibition Cir.1996). A "reasonable opportunity," however, is no greater than is essential to further the Village's does not include a concern for economic considera- substantial interest in combating the secondary ef- tions. Renton, 475 U.S. at 54, 106 S.Ct. 925. [FN32] fects resulting from the combination of nude and semi-nude dancing and alcohol consumption because, FN32. In an affidavit filed with the district as a practical matter, a complete ban of alcohol on the court, Barry Breault, part-owner of Ben's premises of adult entertainment establishments is the Bar, stated that: only way the Village can advance that interest. As the The bulk of Ben's Bar's revenues are derived Supreme Court recognized in LaRue, from beverage sales and associated food Nothing in the record before us or in common ex- sales. Revenues from adult entertainment ... perience compels the conclusion that either self- account for only about one-third of Ben's discipline on the part of the customer or self- revenues. Ben's Bar cannot operate at a regulation on the part of the bartender could have profit without the revenue from the sale of been relied upon by the Department to secure com- alcoholic beverages, and the business such pliance with ... [the] regulation[s]. The Depart-
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ment's choice of a prophylactic solution instead of III. one that would have required its own personnel to For the reasons expressed in this opinion, Section judge individual instances of inebriation cannot, 5(b)'s prohibition of alcohol on the premises of adult therefore, be deemed an unreasonable one .... entertainment establishments does not violate the 409 U.S. at 116, 93 S.Ct. 390. See also Wise Enter- First Amendment. We, therefore, affirm the district prises, Inc. v. Unified Government of Athens-Clarke court's decision granting the Village's motion for County, Georgia, 217 F.3d 1360, 1364-65 (11th summary judgment. Cir.2000) (holding that ordinance prohibiting alcohol on the premises of adult entertainment establishments 316 F.3d 702 satisfied O'Brien's requirement that restriction on Briefs and Other Related Documents (Back to top) First Amendment rights be no greater than necessary to the furtherance of the government's interest be- • 01-4351 (Docket) (Dec. 31, 2001) cause "[t]here is no less restrictive alternative"). In- deed, unlike the zoning ordinance at issue in Alameda END OF DOCUMENT Books, there is no need to speculate as to whether Section 5(b) will achieve its stated purpose. Prohibit- ing alcohol on the premises of adult entertainment es- tablishments will unquestionably reduce the en- hanced secondary *728 effects resulting from the ex- plosive combination of alcohol consumption and nude or semi-nude dancing.
Given the foregoing, we conclude that Section 5(b) does not violate the First Amendment. The regulation has no impact whatsoever on the tavern's ability to offer nude or semi-nude dancing to its patrons; it seeks to regulate alcohol and nude or semi-nude dan- cing without prohibiting either. The citizens of the Village of Somerset may still buy a drink and watch nude or semi-nude dancing. They are not, however, constitutionally entitled to do both at the same time and in the same place. Gary, 311 F.3d at 1338 (holding that there is no generalized right to associate with other adults in alcohol-purveying establishments with other adults). The deprivation of alcohol does not prevent the observer from witnessing nude or semi-nude dancing, or the dancer from conveying an erotic message. Perhaps a sober patron will find the performance less tantalizing, and the dancer might therefore feel less appreciated (not necessarily from the reduction in ogling and cat calls, but certainly from any decrease in the amount of tips she might otherwise receive). And we do not doubt Ben's Bar's assertion that its profit margin will suffer if it is un- able to serve alcohol to its patrons. But the First Amendment rights of each are not offended when the show goes on without liquor.
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6 of 6 DOCUMENTS
SUZY DAVIS, EDWARD SMART, CECIL SNYDER, aka CECIL CINDER, individually and on behalf of all others situated; and BEACHFRONT USA, INC., unincorporated and incorporated associations, Plaintiffs-Appellants, v. DARYL F. GATES, Chief of Police of the City of Los Angeles; the City of Los Angeles; and the County of Los Angeles, Defendants-Appellees.
No. 91-56174
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
1992 U.S. App. LEXIS 22417
July 7, 1992, ** Submitted, Pasadena, California
** The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.
September 14, 1992, Filed
NOTICE: FACTS [*1] THIS DISPOSITION IS NOT APPROPRIATE FOR PUBLICATION AND MAY NOT BE CITED TO Plaintiffs are organizations and individuals who are OR BY THE COURTS OF THIS CIRCUIT EXCEPT members of various national organizations of persons AS PROVIDED BY THE 9TH CIR. R. 36-3. who believe in the mental, spiritual and physical benefits of public nudity, nude sunbathing and nude swimming. PRIOR HISTORY: Appeal from the United States District Court for the The city of Los Angeles manages and controls Southern District of California. D.C. No. CV-90-2660- Venice Beach. City Ordinance 63.44 B (20) (the "ordinance") prohibits nudity in public areas including RSWL. Ronald S.W. Lew, District Judge, Presiding public beaches and parks. Plaintiffs allege that they have been prohibited from bathing in the nude, assembling, DISPOSITION: announcing and promulgating [*2] the nudist philosophy AFFIRMED. at Venice Beach because of the enforcement of the ordinance. Specifically, plaintiff Suzy Davis alleges that in 1986, she was cited and prosecuted under the JUDGES: Before: FLETCHER, O'SCANNLAIN and ordinance. Plaintiff Edward Smart alleges he was KLEINFELD, Circuit Judges. arrested and prosecuted for "'buttocks' exposure." Plaintiffs allege that enforcement of the ordinance
violates plaintiffs' rights under the Constitution and OPINION: deprives them of their rights to freedom of expression,
freedom of association, privacy, due process and equal MEMORANDUM protection of the law. Plaintiffs also claim that the Plaintiffs, organizations and individuals who believe existence of the ordinance has a chilling effect on their in benefits of public nudity, appeal the grant of summary exercise of their First Amendment and other judgment in favor of the City of Los Angeles and other constitutional rights. defendants, denying injunctive and declaratory relief from a city ordinance that prohibits inter alia nude Plaintiffs brought suit in May, 1990, seeking sunbathing. We affirm. declaratory and injunctive relief under the First, Fourth, Fifth and Ninth Amendments and 42 U.S.C. § 1983. Page 2 1992 U.S. App. LEXIS 22417, *
After the district court granted defendants' motion to Plaintiffs first contend the district court granted dismiss under Federal Rule of Civil Procedure 12(b)(6), defendants summary judgment based on procedural plaintiffs filed a second amended complaint in default rather than on the merits. This argument is November, 1990. The parties filed cross motions for without merit. In its September 30, 1991, order, the court summary judgment, and the district court granted the made clear that "in granting Defendants' summary defendants' motion on August 2, 1991. The court denied judgment motion, the court ruled on the merits." plaintiffs' motion for reconsideration in an order [*3] Plaintiffs claim that the district court erroneously dated September 30, 1991. ruled against [*5] them because they failed to file an STANDARD OF REVIEW opposition brief to defendants' summary judgment motion; this ruling, they contend, was "based upon an "A grant of summary judgment is reviewed de novo alleged violation of Local Rule 7.9. ..." Local Rule 7.9 to determine whether, viewing the evidence in a light permits the court to grant a motion when the nonmoving most favorable to the nonmoving party, there are any party does not oppose. However, as the district court genuine issues of material fact and whether the district pointed out in ruling on the plaintiffs' motion for court applied the relevant substantive law." Tzung v. reconsideration, Rule 7.9 implicitly requires the court to State Farm Fire and Casualty Co., 873 F.2d 1338, 1339- look at the underlying paperwork to determine whether 40 (9th Cir. 1989). or not summary judgment should be granted on the DISCUSSION merits. The district court did this, and ruled in defendants' favor on the merits.
A. Jurisdiction C. Summary Judgment was Proper Defendants challenge this court's jurisdiction claiming that plaintiffs lack standing. They also contend Plaintiffs contend that the ordinance infringes their that relief based on the incidents alleged in the complaint rights to freedom of expression and freedom of is barred by the statute of limitations. association. However, a recent Supreme Court decision upholding Indiana's public nudity statute is fatal to their "Courts require a plaintiff to have a personal stake in claims. the outcome of a case to warrant [his or her] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on his behalf." EMI Ltd. v. When 'speech' and 'non-speech' elements are combined Bennett, 738 F.2d 994, 996 (9th Cir.) (citation omitted), in the same course of conduct, a sufficiently important cert. denied, 469 U.S. 1073 (1984). The plaintiff must governmental interest can justify incidental limitations allege a "distinct and palpable injury to himself" that is on First Amendment freedoms. ... [A] governmental "likely to be redressed by a favorable decision." Id. at regulation is sufficiently justified if it is within the 996. constitutional power of the Government; if it furthers [*6] an important or substantial governmental interest; if Plaintiffs Suzy Davis and Edward [*4] Smart allege the governmental interest is unrelated to the suppression that they have been arrested for violating the ordinance of free expression; and if the incidental restriction on in the past, that they desire to bathe nude in the future alleged First Amendment freedoms is no greater than is and that the ordinance has a chilling effect on the essential to the furtherance of that interest. exercise of their First Amendment right of expression due to threat of prosecution. We find they have standing Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456, 2461 because they have sufficiently alleged specific injury (1991) (quoting United States v. O'Brien, 391 U.S. 367, from the challenged ordinance, and shown that a decision 376-77 (1968). in their favor would redress that injury. At issue in Barnes was the application of Indiana's We also reject defendants' statute of limitations statute banning public nudity to a nude dancing argument. The fact that Suzy Davis alleges that she was establishment. Applying the O'Brien test to the statute, last cited and prosecuted under the ordinance in 1986 the Court found it to be a constitutionally permissible does not preclude relief here. The basis of the plaintiffs' regulation. The statute furthered "a substantial claims in this case is the continuous chilling effect of the government interest in protecting order and morality" ordinance prohibiting plaintiffs from bathing nude. that was "unrelated to the suppression of free expression." Glen Theatre, 111 S. Ct. at 2462. The Court B. Basis for District Court's Decision specifically rejected the notion that "restricting nudity on moral grounds [is] necessarily related to expression," Id.: "We cannot accept the view that an apparently limitless Page 3 1992 U.S. App. LEXIS 22417, * variety of conduct can be labelled 'speech' whenever the despite its "incidental limitations" on plaintiffs' rights to person engaging in the conduct intends thereby to free expression and association. The ordinance targets express an idea." Id. [*7] (quoting O'Brien, 391 U.S. at public nudity, not whatever message plaintiffs express by 376). Finally, the state's requirement that dancers "wear being nude in public. "Public nudity is the evil the state at least pasties and a G-String" was "the bare minimum seeks to prevent, whether or not it is combined with necessary to achieve the state's purpose." Glen Theatre, expressive activity." Id. 111 S. Ct. at 2463. We thus affirm the decision of the district court. Barnes clearly governs this case. The ordinance is AFFIRMED. the same kind of public morals statute the Supreme Court upheld. Specifically, the statute is constitutionally sound
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92k90.4(5) Most Cited Cases
Briefs and Other Related Documents [1] Zoning and Planning 76 414k76 Most Cited Cases This case was not selected for publication in the Fed- eral Reporter. [1] Zoning and Planning 167.1 414k167.1 Most Cited Cases Please use FIND to look at the applicable circuit City government could safely rely on experiences and court rule before citing this opinion. (FIND CTA9 studies of other cities to regulate adult entertainment, Rule 36-3.) even though city was modifying existing regulations, not initiating regulations, in context of §1983 lawsuit United States Court of Appeals, brought by adult cabaret operator alleging that zoning Ninth Circuit. ordinance violated its First Amendment free speech DEJA VU-EVERETT-FEDERAL WAY, INC., a rights. U.S.C.A. Const.Amend. 1. Washington Corporation, Plaintiff-- Appellant, [2] Constitutional Law 90.4(5) v. 92k90.4(5) Most Cited Cases CITY OF FEDERAL WAY, Defendant--Appellee. No. 01-35533. [2] Zoning and Planning 76 D.C. No. CV-00-01217-MJP. 414k76 Most Cited Cases Mechanism in adult entertainment ordinance, that Argued and Submitted Aug. 9, 2002. [FN*] vested discretion in city official as to whether to grant FN* This panel unanimously finds this case adult use an extension to one year amortization peri- suitable for decision without oral argument. od and as to how long extension would be granted, See Fed. R.App. P. 34(a)(2). was not prior restraint on adult cabaret operator's First Amendment speech, since mechanism provided Decided Aug. 20, 2002. sufficient guidelines for city officials to decide Adult cabaret operator brought § 1983 action against whether to grant extension. U.S.C.A. Const.Amend. municipality alleging zoning ordinance violated its 1. constitutional rights. The United States District Court [3] Constitutional Law 90.4(5) for the Western District of Washington, Marsha J. 92k90.4(5) Most Cited Cases Pechman, J., granted summary judgment for municip- ality. Operator appealed. The Court of Appeals held [3] Zoning and Planning 322 that: (1) city government could safely rely on experi- 414k322 Most Cited Cases ences and studies of other cities in regulation of adult Adult cabaret operator did not have First Amendment cabaret; (2) mechanism in city's amortization provi- free speech interest in maintaining non-conforming sion was not prior restraint on First Amendment use to valid zoning ordinance after city gave operator speech; (3) ordinance did not effect taking of adult a year to relocate or to bring its location into con- cabaret operator's property; and (4) ordinance did not formance with zoning regulations. U.S.C.A. violate operator's substantive due process rights un- Const.Amend. 1. der Fourteenth Amendment. [4] Eminent Domain 2.10(1) Affirmed. 148k2.10(1) Most Cited Cases (Formerly 148k2(1.2)) West Headnotes City ordinance that regulated adult entertainment did [1] Constitutional Law 90.4(5) not effect taking of adult cabaret operator's property in violation of Fifth Amendment, since regulations
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did not prevent all economically viable uses of oper- communities from the secondary effects of protected ator's property and they advanced not just legitimate adult speech. See, e.g., City of Renton v. Playtime state interest, but significant one under First Amend- Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 ment. U.S.C.A. Const.Amends. 1, 5. L.Ed.2d 29 (1986). City governments may safely [5] Constitutional Law 296(1) rely on the experiences and studies of other cities 92k296(1) Most Cited Cases when regulating adult uses. See City of Erie v. Pap's A.M., 529 U.S. 277, 296-97, 120 S.Ct. 1382, 146 [5] Zoning and Planning 76 L.Ed.2d 265 (2000). Nonetheless, Deja Vu argues 414k76 Most Cited Cases this principle is inapplicable because here Federal City ordinance that regulated adult entertainment did Way was modifying existing regulations, not initiat- not violate operator's substantive due process rights ing regulations. Deja Vu argues that to modify regu- under Fourteenth Amendment; regulations were not lations, a city should be required to conduct its own irrational or arbitrary action in violation of substant- study to show why the existing regulations need to be ive due process since they passed muster under First modified. Amendment in light of substantial and legitimate state interests they advanced. U.S.C.A. We find no support for Deja Vu's argument and con- Const.Amends. 1, 14. clude that under the Supreme Court's precedents, the *410 Appeal from the United States District Court asserted distinction makes no difference. In the most for the Western District of Washington Marsha J. recent Supreme Court opinion on the subject, the City Pechman, District Judge, Presiding. of Los Angeles was allowed to modify existing regu- lations by relying on the same study on which the Before NOONAN, HAWKINS and GOULD, Circuit city relied when enacting the original regulations. Judges. *411 See City of Los Angeles v. Alameda Books, 535 U.S. 425, ----, 122 S.Ct. 1728, 1731, 152 L.Ed.2d 670 MEMORANDUM [FN**] (2002) (plurality opinion). FN** This disposition is not appropriate for publication and may not be cited to or by the The 1999 regulations are properly considered a "con- courts of this circuit except as provided by tent neutral" time, place, and manner restriction on Ninth Circuit Rule 36-3. protected speech. See Alameda Books, 535 U.S. at - ---, 122 S.Ct. at 1741 (Kennedy, J., concurring). The Deja Vu-Everett-Federal Way, Inc. ("Deja Vu") oper- regulations were based on the studies, experiences, ated an adult cabaret in the City of Federal Way, and police records of many cities. The evidence re- Washington ("Federal Way"). In 1999, Federal Way lied on by Federal Way was "reasonably believed to enacted a zoning ordinance regulating adult uses, be relevant to the problem that the city which rendered Deja Vu's business a non-conforming addresse[d]." Renton, 475 U.S. at 51-52. The regu- use. This would require Deja Vu to shut down, lations were thus "narrowly tailored" to serve a signi- change, or move its operation. Deja Vu sued Federal ficant government interest, Ward v. Rock Against Ra- Way for violations of constitutional rights. The dis- cism, 491 U.S. 781, 798-99, 109 S.Ct. 2746, 105 trict court rejected Deja Vu's claims, and Deja Vu ap- L.Ed.2d 661 (1989); Colacurcio v. City of Kent, 163 peals the district court's grant of summary judgment F.3d 545, 551 (9th Cir.1998), and were designed to in favor of Federal Way. serve a substantial government interest of reducing [1] Deja Vu first claims that the 1999 regulations vi- crime and lessening other secondary effects of adult olated its First Amendment rights because Federal uses. See Alameda Books, 535 U.S. at ----, 122 S.Ct. Way had not shown that the then-existing zoning reg- at 1734 (plurality opinion). ulations had proven ineffective at curbing the second- Deja Vu argues that we should apply what it de- ary effects of adult uses. The Supreme Court has scribes as a new test from Justice Kennedy's Alameda granted flexibility to city governments to protect their Books concurrence: whether the city has "advance [d]
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some basis to show that its regulation has the purpose Briefs and Other Related Documents (Back to top) and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech sub- • 2001 WL 34105387 (Appellate Brief) Reply Brief stantially intact." Alameda Books, 535 U.S. at ----, of Appellant (Nov. 17, 2001)Original Image of this 122 S.Ct. at 1742 (Kennedy, J., concurring). Federal Document (PDF) Way has satisfied Justice Kennedy's "test," as well as • 2001 WL 34105386 (Appellate Brief) Opening that of the plurality opinion of Justice O'Connor. Brief of Appellant (Sep. 18, 2001)Original Image of [2][3] Deja Vu next claims that the city's amortiza- this Document with Appendix (PDF) tion provision acts as a prior restraint on speech, ar- • 01-35533 (Docket) (Jun. 06, 2001) guing that the provision vests impermissible discre- tion in a city official as to whether to grant an adult END OF DOCUMENT use an extension to the one-year amortization period and as to how long an extension should be granted. Deja Vu does not challenge the amortization period itself; it challenges the mechanism for extending that period. But the amortization provision provides suf- ficient guidelines for city officials to decide whether to grant an extension. Underlying Deja Vu's argu- ment is a contention that it has a First Amendment right to conduct adult-oriented business in an area that prohibits such uses, after the city has given Deja Vu a year to relocate or to bring its location into con- formance with zoning regulations. This is not a prior restraint against protected speech. No First Amend- ment interest is implicated in maintaining a non- conforming use if the zoning ordinance is valid.
[4][5] Finally, Deja Vu argues that the 1999 regula- tions effect a taking in violation of its Fifth Amend- ment rights and that the regulations also violate Deja Vu's substantive due process rights under the Four- teenth Amendment. The regulations did not prevent all economically viable uses of Deja Vu's property, and they advanced not just a "legitimate" state in- terest, but a "significant" one under the First Amend- ment. See Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1016, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992). Because the regulations pass muster un- der the First Amendment in light of the substantial and legitimate state interests they advance, we con- clude that they are not irrational or arbitrary action in violation of substantive due process.
AFFIRMED.
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[2] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases Briefs and Other Related Documents Nude dancing is a form of expressive conduct protec- ted, to some degree, by the First Amendment. United States Court of Appeals, U.S.C.A. Const.Amend. 1. Ninth Circuit. Frank COLACURCIO, Jr., dba DDF & S Investment [3] Constitutional Law 90(3) Co.; David Ebert, dba DDF & S 92k90(3) Most Cited Cases Investment Co.; Steve Fueston, dba DDF & S Invest- Municipalities may impose reasonable restrictions on ment Co., Plaintiffs- the time, place or manner of protected speech, Appellants, provided the restrictions are (1) content-neutral, (2) v. narrowly tailored to serve a significant government CITY OF KENT, Defendant-Appellee. interest, and (3) leave open ample alternative chan- No. 96-36197. nels for communication of the information. U.S.C.A. Const.Amend. 1. Argued and Submitted April 10, 1998. Decided Dec. 8, 1998. [4] Constitutional Law 90.1(1) 92k90.1(1) Most Cited Cases Operators seeking to open adult nightclub challenged Regulation of symbolic expression is sufficiently jus- constitutionality of city ordinance requiring exotic tified if it (a) is within the constitutional power of dancers to perform at least ten feet from patrons, government, (b) furthers an important or substantial seeking declaratory relief and damages under § governmental interest unrelated to the suppression of 1983. City moved for summary judgment. The expression, and (c) the incidental restriction on First United States District Court for the Western District Amendment freedoms is no greater than essential to of Washington, Thomas S. Zilly, J., 944 F.Supp. the furtherance of that interest. U.S.C.A. 1470, granted motion. Operators appealed. The Const.Amend. 1. Court of Appeals, Hug, Chief Judge, held that: (1) or- dinance was not facially content-based; (2) ordinance [5] Constitutional Law 90(3) satisfied content-neutrality requirement for permiss- 92k90(3) Most Cited Cases ible time, place, and manner restrictions on protected In determining whether an ordinance is content-neut- speech; (3) ordinance was narrowly tailored to ral, for First Amendment purposes, principal inquiry achieve city's objectives in controlling drug transac- is whether the government has adopted a regulation tions and prostitution; and (4) ordinance left open of speech because of disagreement with the message ample alternative channels for communication. it conveys. U.S.C.A. Const.Amend. 1.
Affirmed. [6] Constitutional Law 90(3) 92k90(3) Most Cited Cases Reinhardt, Circuit Judge, dissented and filed a separ- Content-neutrality requirement for municipal ordin- ate opinion. ance imposing time, place, or manner restriction on West Headnotes protected speech is met if the involved ordinance is aimed to control secondary effects resulting from the [1] Federal Civil Procedure 2470.2 protected expression, such as threats to public health 170Ak2470.2 Most Cited Cases or safety, rather than at inhibiting the When a mixed question of fact and law involves un- protected expression itself. U.S.C.A. Const.Amend. disputed underlying facts, summary judgment may be 1. appropriate.
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[7] Constitutional Law 90(3) 315Tk9(2) Most Cited Cases 92k90(3) Most Cited Cases (Formerly 376k3.50 Theaters and Shows) City may establish its interest in a regulation burden- In determining whether purpose of ordinance requir- ing protected speech by relying upon evidence reas- ing exotic dancers to perform at least ten feet from onably believed to be relevant to the problem that the patrons was content-neutral, for free speech purposes, city addresses. U.S.C.A. Const.Amend. 1. Court of Appeals would rely on all objective indicat- [8] Constitutional Law 90.4(3) ors of intent, including the face of ordinance, the ef- 92k90.4(3) Most Cited Cases fect of ordinance, comparison to prior law, facts sur- In evaluating the secondary effects of adult entertain- rounding enactment, the stated purpose, and the re- ment for purposes of ordinance restricting such activ- cord of proceedings. U.S.C.A. Const.Amend. 1. ities, city is permitted, under First Amendment's free speech protections, to rely on experiences of other [13] Constitutional Law 90.4(3) jurisdictions. U.S.C.A. Const.Amend. 1. 92k90.4(3) Most Cited Cases
[9] Constitutional Law 90(3) [13] Public Amusement and Entertainment 92k90(3) Most Cited Cases 9(2) Under First Amendment, regulation is "content-neut- 315Tk9(2) Most Cited Cases ral" if it is justified without reference to the content (Formerly 376k3.50 Theaters and Shows) of the regulated speech. U.S.C.A. Const.Amend. 1. City ordinance requiring exotic dancers to perform at least ten feet from patrons was justified without refer- [10] Constitutional Law 90(3) ence to speech, and thus satisfied content-neutrality 92k90(3) Most Cited Cases requirement for permissible time, place, and manner Finding that the restriction of First Amendment restrictions on protected speech, even though it al- speech was a motivating factor in enacting an ordin- legedly resulted in complete ban of table dancing; the ance is not of itself sufficient to hold the regulation record did not reflect unusual procedural maneuver- presumptively invalid. U.S.C.A. Const.Amend. 1. ing on part of city officials or illicit purposes behind ordinance's enactment, ordinance was based on com- [11] Constitutional Law 90.4(3) prehensive study concerning secondary impacts of 92k90.4(3) Most Cited Cases adult entertainment businesses, and police affidavits documented connection between table dancing and il- [11] Public Amusement and Entertainment legal sexual activity. U.S.C.A. Const.Amend. 1. 9(2) 315Tk9(2) Most Cited Cases [14] Constitutional Law 90.4(3) (Formerly 376k3.50 Theaters and Shows) 92k90.4(3) Most Cited Cases City ordinance that required exotic dancers to per- form at least ten feet from patrons was not facially [14] Public Amusement and Entertainment content-based, for free speech purposes, despite 9(2) claim that ordinance essentially banned table dan- 315Tk9(2) Most Cited Cases cing; ordinance did not distinguish between table (Formerly 376k3.50 Theaters and Shows) dancing and other exotic dance forms, nor did its City ordinance requiring exotic dancers to perform at stated purposes mention ills of table dancing or goals least ten feet from patrons was narrowly tailored to of restricting offensive conduct. U.S.C.A. achieve city's objectives in controlling drug transac- Const.Amend. 1. tions and prostitution, notwithstanding claims that less burdensome alternatives existed. U.S.C.A. [12] Constitutional Law 90.4(3) Const.Amend. 1. 92k90.4(3) Most Cited Cases [15] Constitutional Law 90(3) [12] Public Amusement and Entertainment 92k90(3) Most Cited Cases 9(2)
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Regulation of the time, place or manner of protected ment fiat have been devoted to assembly and debate. speech must be narrowly tailored to serve the govern- U.S.C.A. Const.Amend. 1. ment's legitimate content-neutral interests, but it need not be the least restrictive or the least intrusive means [21] Constitutional Law 90.4(5) of doing so; rather, requirement of narrow tailoring is 92k90.4(5) Most Cited Cases satisfied so long as the regulation promotes a sub- [21] Public Amusement and Entertainment stantial government interest that would be achieved 9(2) less effectively absent the regulation. U.S.C.A. 315Tk9(2) Most Cited Cases Const.Amend. 1. (Formerly 376k3.50 Theaters and Shows) [16] Constitutional Law 90(3) City ordinance that required exotic dancers to per- 92k90(3) Most Cited Cases form at least ten feet from patrons left open ample al- Government may not regulate expression in such a ternative channels for communication, notwithstand- manner that a substantial portion of the burden on ing potential nightclub operators' claims that ordin- speech does not serve to advance its goals. U.S.C.A. ance essentially banned table dancing; distance re- Const.Amend. 1. quirement did not rob dancers of their forum or their entire audience. U.S.C.A. Const.Amend. 1. [17] Constitutional Law 90(3) 92k90(3) Most Cited Cases [22] Constitutional Law 90.4(3) Validity of a time, place, or manner regulation of pro- 92k90.4(3) Most Cited Cases tected speech does not turn on a judge's agreement [22] Public Amusement and Entertainment with the responsible decisionmaker concerning the 9(2) most appropriate method for promoting significant 315Tk9(2) Most Cited Cases government interests. U.S.C.A. Const.Amend. 1. (Formerly 376k3.50 Theaters and Shows) [18] Constitutional Law 90(3) Claim that economic impact of ordinance requiring 92k90(3) Most Cited Cases exotic dancers to perform at least ten feet from pat- Time, place, or manner restrictions on protected rons foreclosed entire medium of expression offered speech will not violate the First Amendment simply by table dancing did not preclude determination that because there is some imaginable alternative that ordinance left open ample alternative channels of might be less burdensome on speech. U.S.C.A. communication, for First Amendment purposes, giv- Const.Amend. 1. en absence of evidence that ordinance's distance re- quirement served as absolute bar to market entry. [19] Constitutional Law 90.4(3) U.S.C.A. Const.Amend. 1. 92k90.4(3) Most Cited Cases [23] Constitutional Law 90(3) [19] Obscenity 6 92k90(3) Most Cited Cases 281k6 Most Cited Cases Test for determining whether governmental action (Formerly 376k3.50) will foreclose entire medium of expression, for First Nude table dancing, even if unique form of protected Amendment purposes, is whether a business could expression due to use of multisensory perception to operate under the regulations at issue, not whether a communicate message, was not sufficiently unique to particular business will be able to compete success- merit special protection under First Amendment. fully within the market. U.S.C.A. Const.Amend. 1. U.S.C.A. Const.Amend. 1. *548 Gilbert H. Levy, Levy & Hamilton, Seattle, WA, for plaintiffs-appellants. [20] Constitutional Law 90.1(4) 92k90.1(4) Most Cited Cases William P. Schoel and Jayne L. Freeman, Keating, For First Amendment purpose, "traditional public Bucklin & McCormack, Seattle, WA, Roger A. Lub- forums" are places which by long tradition or govern- ovich, City Attorney, Laurie A. Evezich, Assistant
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City Attorney, Kent, WA, for defendant-appellee. use under the zoning law.
Appeal from the United States District Court for the *549 In March 1995, the Kent City Council adopted Western District of Washington; Thomas S. Zilly, Adult Entertainment Ordinance 3214, establishing District Judge, Presiding. D.C. No. CV-95- new standards for the licensing and operation of adult 01176-TSZ. uses in Kent. In April 1995, that ordinance was amended by Ordinance 3221, in an effort to conform Before: HUG, Chief Judge, and REINHARDT and the legislation to the King County Superior Court's WIGGINS, Circuit Judges. ruling on a similar ordinance in Bellevue, Washing- ton. Ordinance 3221, which has been codified as Opinion by Chief Judge HUG; Dissent by Judge RE- Kent City Code § 5.10.010 et seq., provides, in relev- INHARDT. ant part: HUG, Chief Judge: The portion of the exotic dance studio premises in which dancing and adult entertainment by an enter- In this case we examine whether the district court tainer is performed shall be a stage or platform at was correct in concluding as a matter of law that the least twenty-four (24) inches in elevation above the City of Kent's ordinance, which requires nude dan- level of the patron seating areas. KCC § cers to perform at least ten feet from patrons, does 5.10.110(A). not violate the First Amendment of the United States No dancing or adult entertainment by an entertainer Constitution. Appellants, who planned to open a shall occur closer than ten (10) feet to any patron. nightclub featuring nude dancing on stage and per- KCC § 5.10.120(A)(3). sonalized table dancing, argue that the ten-foot dis- tance requirement amounts to a complete ban on ta- The code also specifies minimum lighting require- ble dancing, which they allege is a unique form of ex- ments and prohibits dancers from soliciting or receiv- pression entitled to separate First Amendment analys- ing tips from patrons. Shortly after enactment of the is. We have jurisdiction under 28 U.S.C. § 1291. ordinance, Appellants brought this action for declar- We affirm. atory relief and damages pursuant to 42 U.S.C. § 1983. I. Factual Background Appellants contend that the ten-foot rule would ef- Appellants desire to open a non-alcoholic adult fectively eliminate table dancing, which they argue is nightclub in the City of Kent, Washington, featuring a unique form of expression entitled to separate First nude dancing on stage and personalized table dances. Amendment analysis. Unlike nude dancing per- Appellants located a site in Kent and applied for a formed on stage, table dancing is performed in close building permit. proximity to patrons. Appellants have submitted de- clarations of a cultural anthropologist and a commu- The City of Kent has examined issues related to adult nications expert attesting to the uniqueness of table entertainment for several years. In 1982, the City's dancing and the potentially detrimental effects of the planning department published a study on the effects ten-foot rule on the dancers' erotic messages. Appel- of adult entertainment on surrounding communities, lants also argue that table dancing is the primary including a discussion of various regulatory alternat- source of income for exotic dancers, and that the ives. Kent's initial regulatory effort involved a zon- Kent ordinance would make it uneconomical and ing ordinance, which Appellants challenged in therefore impossible for exotic dance studios to open 1994. The district court found that the zoning ordin- or operate in Kent. ance failed to designate a sufficient number of sites for the location of adult businesses. Pursuant to a The City filed a motion for summary judgment, settlement agreement, the City agreed to treat Appel- which the district court granted in November 1996. lants' proposed business as a lawful non-conforming The district court ruled as a matter of law that (1) the
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ordinance was a content-neutral time, place and man- 2727, 41 L.Ed.2d 842 (1974). ner regulation; and (2) the ten-foot distance require- ment was narrowly tailored and left open ample al- The fragmented nature of Supreme Court opinions ternative avenues for communication of protected dealing with nude dancing in particular and sexually artistic expression. Appellants filed a timely notice of explicit but non-obscene conduct in general has resul- appeal. ted in a lack of clear guidance on the level of First Amendment protection afforded to this type of ex- II. pression. In Young v. American Mini Theatres, Inc., Standard of Review 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), [1] A grant of summary judgment is reviewed de which involved a zoning ordinance governing the novo. Covey v. Hollydale Mobilehome Estates, 116 location of adult theaters, a plurality of the Court F.3d 830, 834 (9th Cir.1997). We must determine, agreed that adult entertainment should be regarded as viewing the evidence in the light most favorable to "low value" speech: "[F]ew of us would march our Appellants, whether there are any genuine issues of sons and daughters off to war to preserve the citizen's material fact and whether the district court correctly right to see 'Specified Sexual Activities' exhibited in applied the relevant substantive law. Id. We do not the theaters of our choice." Id. at 70, 96 S.Ct. 2440. weigh the evidence or determine the truth of the mat- However, five Justices in Young, one concurring and ter but only determine whether there is a genuine is- four dissenting, argued that First Amendment protec- sue of material fact for trial. Id. When a mixed ques- tion should not vary with the social value ascribed to tion of fact and law involves undisputed underlying speech by the courts. See id. at 73 n. 1, 96 S.Ct. facts, summary judgment may be appropriate. Han v. 2440 (Powell, J., concurring); Id. at 85-87, 96 S.Ct. Mobil Oil Corp., 73 F.3d 872, 875 (9th Cir.1995). 2440 (Stewart, J., dissenting). Writing for our court in 1986, Judge Pregerson in Kev alluded to the voting III. tally in Young when he ascribed full First Amend- Level of Protection for Nude Dancing ment protection to nude dancing. Kev, 793 F.2d at [2] The parties and the district court correctly ac- 1058. knowledge that nude dancing is a form of expressive conduct protected, to some degree, by the First Fifteen years after Young, a plurality of the Supreme Amendment. [FN1] There is understandable confu- Court including Justices Rehnquist, O'Connor, and sion, however, about the level of such protection. Kennedy, reiterated that nude dancing enjoys only The district court cited a plurality opinion of the Su- marginal First Amendment protection. Barnes, 501 preme Court indicating that nude dancing "is express- U.S. at 565-66, 111 S.Ct. 2456. [FN2] Two Justices ive conduct within the outer perimeters of the First concurred in Barnes, with four dissenters advocating Amendment, though ... only marginally so." Barnes full First Amendment protection. Because one con- v. Glen Theatre, Inc., 501 U.S. 560, 565-566, 111 currence did not reach the issue, Barnes represents a S.Ct. 2456, 115 L.Ed.2d 504 (1991). Appellants cite four-four split on the matter. [FN3] to pre-Barnes Ninth Circuit precedent which accor- ded nude dancing full First *550 Amendment protec- FN2. See also Schad v. Mount Ephraim, 452 tion. Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (9th Cir.1986). (1981) (stating that "nude dancing is not without its First Amendment protections"); FN1. The Supreme Court has determined Doran v. Salem Inn, Inc., 422 U.S. 922, 932, that conduct is expressive when the follow- 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975) ing two factors are present: (1) intent to con- (noting that nude barroom dancing may in- vey a particularized message; and (2) a sub- volve only the "barest minimum of protected stantial likelihood that the message will be expression" which "might be entitled to First understood by those receiving it. Spence v. and Fourteenth Amendment protection "un- Washington, 418 U.S. 405, 410-11, 94 S.Ct. der some circumstances.").
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FN3. Justice Scalia, concurring, determined as a matter of law. Appellants argue that the ordin- that because the statute did not regulate nude ance is content-based on its face, and that the record dancing in particular but instead regulated shows that the City's predominant intent in passing public nudity in general, the law was not the Ordinance was to ban adult entertainment in specifically directed at expression and there- Kent. This contention is based *551 on statements fore was not subject to First Amendment made by the mayor and other city officials, in addi- scrutiny at all. Barnes, 501 U.S. at 572, 111 tion to Kent's alleged pattern of adopting restrictive S.Ct. 2456 (Scalia, J., concurring). Justice ordinances in response to proposals to build exotic Souter, concurring, accorded a low-level of dance studios. First Amendment protection to nude dan- cing, noting that "society's interest in pro- [3][4] Municipalities may impose reasonable restric- tecting this type of expression is of a wholly tions on the time, place or manner of protected different, and lesser, magnitude than the in- speech, provided the restrictions are: (1) content-neut- terest in untrammeled political ral; (2) narrowly tailored to serve a significant gov- debate." Barnes, 501 U.S. at 584, 111 S.Ct. ernment interest; and (3) leave open ample alternative 2456 (Souter, J., concurring) (citing Young, channels for communication of the information. 427 U.S. at 70, 96 S.Ct. 2440)). Dissenting Ward v. Rock Against Racism, 491 U.S. 781, 791, Justice White, joined by Justices Marshall, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). The Su- Blackmun, and Stevens, argued for full First preme Court has determined that this test is similar or Amendment protection for nude identical to the O'Brien test generally applied to regu- dancing. Barnes, 501 U.S. at 593, 111 S.Ct. lations affecting symbolic speech. [FN4] 2456 (White, J., dissenting). FN4. "[V]alidating a regulation of express- Scholars have grappled with the problem of the un- ive conduct ... in the last analysis is little, if certain status of nude dancing and adult entertain- any, different from the standard applied to ment under the First Amendment. Professor time, place or manner restrictions." Clark v. Lawrence Tribe noted that "no Court has yet squarely Community for Creative Non-Violence, 468 held that sexually explicit but non-obscene speech U.S. 288, 298, 104 S.Ct. 3065, 82 L.Ed.2d enjoys less than full First Amendment protection." 221 (1984). Under the standard set out in Tribe, American Constitutional Law §§ 12-18, p. 938 United States v. O'Brien, 391 U.S. 367, 88 (2d Ed.1988). Although his comment was made pri- S.Ct. 1673, 20 L.Ed.2d 672 (1968), a regula- or to Barnes, the observation continues to be accurate tion of symbolic expression is sufficiently today. Professor Erwin Chemerinsky views Su- justified if it: (a) is within the constitutional preme Court precedent as according sexually explicit power of government; (b) furthers an im- expression "low-value" status. Chemerinsky, Con- portant or substantial governmental interest stitutional Law § 11..3.4.4, p. 836-41 (1st Ed.1997). unrelated to the suppression of expression; Professors Gerald Gunther and Kathleen Sullivan and (c) the incidental restriction on First suggest that even in cases where courts do not expli- Amendment freedoms is no greater than es- citly treat sexual expression as lower-value speech, sential to the furtherance of that interest. Id. the decisions have implicitly treated such speech as a at 377, 88 S.Ct. 1673. The Ninth Circuit "subordinate species" in their tolerance of content- frequently cites both tests when analyzing specific regulation. Gunther and Sullivan, Constitu- regulations of adult entertainment. See, tional Law § 5(D), p. 1155-56 (13th Ed.1997). e.g., Walnut Properties, Inc. v. City of Whit- tier, 808 F.2d 1331, 1334-35 (9th IV. Cir.1986)("Walnut I"); Kev, 793 F.2d at Content Neutrality 1058-59 & n. 3 (9th Cir.1986). Appellants contend that the district court erred in de- termining that the Kent Ordinance is content-neutral [5][6] In determining whether an ordinance is con-
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tent-neutral, our principal inquiry is "whether the there must be of these effects. [FN5] Similarly, pre- government has adopted a regulation of speech be- cedent provides no standards for determining when cause of disagreement with the message it conveys." an illicit but inconsequential "motivating factor" Ward, 491 U.S. at 791, 109 S.Ct. 2746. The content- might develop into an illicit and controlling "predom- neutrality requirement is met if the involved ordin- inant purpose." Precedent suggests that government ance is " 'aimed to control secondary effects resulting defendants generally will prevail on *552 the issue of from the protected expression,' rather than at inhibit- content neutrality if evidence shows that the enact- ing the protected expression itself." Tollis, Inc. v. ment can be "justified without reference to ... San Bernardino County, 827 F.2d 1329, 1332 (9th speech." See Kev, 793 F.2d. at 1058-59 (internal Cir.1987)(quoting Int'l Food and Beverage Systems v. quotations and citations omitted). This is a difficult City of Fort Lauderdale, 794 F.2d 1520, 1525 (11th standard to overcome, unless the challenger can show Cir.1986)). See also Renton v. Playtime Theatres, that the statute is speech-discriminatory on its face. Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d See, e.g., BSA, Inc. v. King County, 804 F.2d 1104, 29. Secondary effects may include, but are not lim- 1108-09 (9th Cir.1986) (holding unconstitutional ited to, threats to public health or safety. Building county ordinances which specifically exempted bar- upon the Supreme Court's reasoning in Renton, we room nude dancing from their definitions of "express- outlined the appropriate test in Tollis: ive dance," thus effecting complete bans on nude If the ordinance is predominantly aimed at the sup- dancing). pression of First Amendment rights, then it is con- tent-based and presumptively violates the First FN5. Chemerinsky, Constitutional Law, § Amendment. If, on the other hand, the predomin- 11.3.4.4., p. 840 (1997). ant purpose of the ordinance is the amelioration of [11] Contrary to Appellants' contention, the Kent or- secondary effects in the surrounding community, dinance is not content-based on its face. The ordin- the ordinance is content-neutral, and the court must ance does not distinguish between table dancing and then determine whether it passes constitutional other exotic dance forms. Nor do the stated purposes muster as a content-neutral time, place and manner mention the ills of table dancing or the goals of re- regulation. stricting offensive conduct. The ten-foot distance re- 827 F.2d at 1332 (internal citation omitted). quirement applies to all forms of dancing within [7][8][9][10] A city may establish its interest in a reg- exotic dance studios. ulation by relying upon evidence "reasonably be- [12][13] We will look to the full record to determine lieved to be relevant to the problem that the city ad- whether evidence indicates that the purpose of the or- dresses." Renton, 475 U.S. at 51-52, 106 S.Ct. 925. dinance is to suppress speech or ameliorate secondary In evaluating the secondary effects of adult entertain- effects. In so doing, we will rely on all "objective ment, the city is also permitted to rely on experiences indicators of intent," including the "face of the stat- of other jurisdictions. Id. A regulation is content- ute, the effect of the statute, comparison to prior law, neutral if it is "justified without reference to the con- facts surrounding enactment, the stated purpose, and tent of the regulated speech." Id. at 48, 106 S.Ct. 925 the record of proceedings." City of Las Vegas v. Fo- (quoting Virginia Pharmacy Board v. Virginia Cit- ley, 747 F.2d 1294, 1297 (9th Cir.1984). The district izens Consumer Council, Inc., 425 U.S. 748, 771, 96 court was correct in rejecting the City's claim that the S.Ct. 1817, 48 L.Ed.2d 346 (1976)). A finding that court need only look to the stated purposes of the or- the restriction of First Amendment speech is a "motiv- dinance to find a permissible purpose. ating factor" in enacting an ordinance is not of itself sufficient to hold the regulation presumptively inval- Appellants cite to statements by city officials and id. Id. at 46- 49, 106 S.Ct. 925. others allegedly revealing the City's underlying speech-suppressive purposes. For example, Appel- The case law has not clarified when secondary effects lants quote the following statement by the City Attor- warrant restriction of speech and how much proof
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ney at a Planning Commission meeting: ive regulations possible" in response to proposals to Since we cannot zone these type[s] of businesses build nude dance studios in the City. This contention out of the City, the licensing was looked at that was is rebutted by the record. The record indicates that in place for this type of facility ... As indicated, Kent's approach has grown more lenient over time. these uses cannot be prohibited, but they can be Evidence suggests that after the failed zoning at- regulated. tempt, City leaders learned that unduly restrictive regulations would not survive judicial review. The Appellants also cite the following statement from the City Attorney's comments at a 1995 Planning Com- Planning Committee Chairman: mission meeting reflect this *553 awareness: "These With all the regulations we have adopted and stuff, uses cannot be prohibited but they can be regulated ... I'm not too concerned that someone's going to the question is where do we put this type of business come and try to open something up. Because and how many sites do we allow." The record indic- we've made it a little bit difficult for them to make ates that the City devoted considerable resources to money in the traditional way they make money. developing an ordinance that would be constitution- ally sound. Kent's distance requirements were In determining the extent to which comments such as modeled after regulations upheld in Kitsap County, these should inform our analysis of predominant in- Bellevue, King County, and Kelso. [FN7] tent, we look to our decision in Foley. In Foley, we noted that individual statements by city leaders were FN7. Kent's 1982 study also indicates an in- admissible if they "showed the chain of events from tent to assimilate rather than eliminate adult which intent may be inferred, rather than merely the uses: "The City of Kent seeks to assimilate subjective intent of individual legislators." Id. at adult uses into the overall urban fabric with 1298. Put another way, the subjective statements the least adverse impact to the business and cited by Appellants are relevant if they show object- residential environments." City of Kent ive manifestations of an illicit purpose, such as a de- Planning Dept., Adult Use Zoning Study 41 parture from normal procedures or a sudden change (1982). "A secondary objective is to discuss in policy. [FN6] In the present case, the record does the ability of the City to provide services- not indicate unusual procedural maneuvering on the -primarily protective services-- based on al- part of the Kent Planning Committee, Planning Com- ternative locational requirements for adult mission, City Attorney, or other City governing bod- uses." Id. ies. The enactment of the Kent Ordinance was con- sistent with the City's comprehensive planning Even if we were to accord substantial weight to the policy, and reflects no procedural lapses that might mixed motivations of certain City officials, the record suggest unjust treatment. Objective indicators of illi- indicates that the City's documentation of permissible cit purpose are not present here. purposes satisfies Virginia Pharmacy Board and Renton. Kent's ordinance was based on a compre- FN6. Equal protection cases may provide hensive study of adult entertainment businesses and some guidance in this regard. See, e.g, Vil- their secondary impacts. In formulating the ordin- lage of Arlington Heights v. Metropolitan ance, the City relied on the study, concluding that Housing Corp., 429 U.S. 252, 267-68, 97 regulation of adult uses was an important factor in S.Ct. 555, 50 L.Ed.2d 450 (1977) (allowing controlling prostitution, drug dealing, and other crim- courts to consider "contemporary statements inal activity. See e.g., Lakeland Lounge of Jackson, by members of the decisionmaking body" as Inc. v. City of Jackson, 973 F.2d 1255, 1258 (5th evidence of sudden changes in policy or de- Cir.1992) (treating reliance on formal studies as evid- parture from normal procedures). ence of permissible purpose). The record also in- cludes affidavits and statements by police officers Appellants disagree, contending that Kent's history and vice detectives documenting the connection reflects a clear pattern of adopting "the most restrict- between table dancing and illegal sexual activity.
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We find, therefore, that the Kent Ordinance is justi- should not supplant the legislature's role in develop- fied without reference to speech. ing the most appropriate methods for achieving gov- ernment purposes. See, e.g., DLS, Inc. v. City of V. Chattanooga, 107 F.3d 403, 413 (6th Cir.1997) Narrow Tailoring (upholding a six-foot distance requirement, the court [14] Appellants argue that the ten-foot distance re- stated that "it is not for us to say that a seven-foot quirement fails the narrow tailoring requirement be- zone or a five-foot zone would strike a better bal- cause there are less-speech-restrictive means of ance.") achieving the same results. Appellants contend that summary judgment was improper because the district *554 As to whether the ordinance burdens substan- court failed to consider less burdensome alternatives tially more expression than necessary, the district such as a "no touch" ordinance and a one-foot dis- court was correct in concluding that this argument is tance requirement. foreclosed by our earlier decision in Kev, which up- held a similar ten-foot distance requirement. Kev, 793 [15][16] A regulation of the time, place or manner of F.2d at 1061. Appellants argue that because Kev protected speech must be narrowly tailored to serve was decided prior to the Supreme Court's decision in the government's legitimate content-neutral interests, Ward, the Kev court did not have occasion to apply but it need not be the least restrictive or the least in- the Ward test, which protects speech from unneces- trusive means of doing so. Ward, 491 U.S. at 798-99, sary burdens. See Ward, 491 U.S. at 798, 109 S.Ct. 109 S.Ct. 2746. "Rather, the requirement of narrow 2746. tailoring is satisfied 'so long as the ... regulation pro- motes a substantial government interest that would be This argument fails for two reasons. First, we need achieved less effectively absent the regulation.' " Id. not reach the issue, as we leave the fine-tuning of the at 799, 109 S.Ct. 2746 (quoting United States v. Alb- distance requirement to the legislative body. ertini, 472 U.S. 675, 689, 105 S.Ct. 2897, 86 L.Ed.2d Second, at the time Kev was decided, Supreme Court 536 (1985)). This standard does not mean that a precedent included speech-protective language simil- time, place or manner regulation may burden sub- ar or identical to that in Ward. See, e.g, Clark, 468 stantially more speech than necessary to further the U.S. at 297, 104 S.Ct. 3065 (same); O'Brien, 391 government's interests. "Government may not regu- U.S. at 377, 88 S.Ct. 1673 (requiring the incidental late expression in such a manner that a substantial restrictions on First Amendment freedoms to be "no portion of the burden on speech does not serve to ad- greater than is essential to the furtherance" of the as- vance its goals." Ward, 491 U.S. at 799, 109 S.Ct. serted governmental interests). 2746. Several courts have upheld distance requirements as a [17][18] The validity of a time, place, or manner reg- narrowly tailored means of controlling illegal sexual ulation "does not turn on a judge's agreement with the contact and narcotics transactions. In BSA Inc., we responsible decisionmaker concerning the most ap- upheld a six-foot distance requirement while prohib- propriate method for promoting significant govern- iting a total ban on nude barroom dancing, stating ment interests." Albertini, 472 U.S. at 689, 105 S.Ct. that the distance requirement "imposes at most a very 2897 (citing Clark, 468 U.S. at 299, 104 S.Ct. minimal restriction on First Amendment activity." 3065). Such restrictions will not violate the First 804 F.2d at 1112. The four dissenting Justices in Amendment "simply because there is some imagin- Barnes, arguing against the statewide ban on public able alternative that might be less burdensome on nudity, supported distance requirements as a less- speech." Albertini, 472 U.S. at 689, 105 S.Ct. 2897. restrictive means of furthering the government's in- terest in protecting public health and safety. Barnes, The district court was correct in concluding that the 501 U.S. at 594, 111 S.Ct. 2456. See also, DLS, Inc. ten-foot setback is narrowly tailored to achieve Kent's v. Chattanooga, 107 F.3d 403 (6th Cir.1997) objectives. The courts have emphasized that judges (six-foot distance requirement); City of Colorado
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Springs v. 2354, Inc., 896 P.2d 272 (Colo.1995) (en formation." *555Ward, 491 U.S. at 791, 109 S.Ct. banc) (three-foot); Zanganeh v. Hymes, 844 F.Supp. 2746. What makes this case unusual is Appellants' 1087 (D.Md.1994) (six-foot); T-Marc, Inc. v. Pinel- claim that table dancing is a unique form of protected las County, 804 F.Supp. 1500 (M.D.Fla.1992) expression that is qualitatively different from nude (three-foot); Ino Ino, Inc. v. City of Bellevue, 132 stage dancing and entitled to separate First Amend- Wash.2d 103, 937 P.2d 154 (Wa.1997) (en banc) ment analysis. Appellants contend that the Kent or- (four-foot). dinance fails to leave open ample alternatives, as a ten-foot distance requirement would eliminate table Furthermore, the less-restrictive alternatives presen- dancing altogether, an essential element of which is ted by Appellants arguably are not "reasonable" al- close proximity between dancers and patrons. Ap- ternatives as they would not serve the City's purposes pellants argue that, unlike stage dancing, table dan- of controlling drug transactions and prostitution. cing uses "not just vision but multi-sensory percep- The one-foot and "no-touch" ordinances would be tion to communicate its message though the sounds, unenforceable, as both would fail to provide suffi- smells, and movements of the dancer within the cient line-of-vision for law enforcement personnel. [patron's] intimate perimeter." Therefore, the district An earlier "no-touch" ordinance in Kent failed for court misapplied the law by failing to acknowledge this reason. In addition, both of these options would the uniqueness of table dancing and instead holding permit verbal communication between dancers and that the ordinance "merely diminishes to a limited de- patrons, thereby failing to curtail propositions for gree the effectiveness of the erotic message conveyed drugs or sex. [FN8] It is unclear from the record by the dance." Appellants support their theory with whether Appellants would support a four-foot dis- declarations of a cultural anthropologist and a com- tance requirement. While claiming at one point that munications expert attesting to the uniqueness of ta- such a regulation would be narrowly tailored, Appel- ble dancing and the detrimental effect of the ten-foot lants state elsewhere in the record that a four-foot re- rule on the dancer's message. quirement put them out of business in Bellevue. Al- though a four-foot distance requirement would keep The Supreme Court generally will not strike down a patrons and dancers just out of arm's reach, a ten-foot governmental action for failure to leave open ample requirement covers two arm spans and keeps patrons alternative channels of communication unless the out of earshot. Appellants have failed to present government enactment will foreclose an entire medi- evidence showing that a ten-foot rule burdens sub- um of public expression across the landscape of a stantially more expression than necessary to achieve particular community or setting. Metromedia, Inc. v. its purpose. We find, therefore, that summary judg- City of San Diego, 453 U.S. 490, 525-27, 101 S.Ct. ment was proper on the issue of content-neutrality. 2882, 69 L.Ed.2d 800 (1981) (Brennan, J., concur- ring). The Court has been particularly hesitant to FN8. We note that, according to Appellants' close off channels of communication which provide own evidence, an ordinance imposing a dis- individuals with inexpensive means of disseminating tance requirement any greater than six core political messages. See, e.g., City of Ladue v. inches would effectively ban table dancing. Gilleo, 512 U.S. 43, 54-56, 114 S.Ct. 2038, 129 The declaration of Appellants' expert cultur- L.Ed.2d 36 (1994) (ordinance banning residential al anthropologist defines table dancing as a signs almost completely foreclosed "a venerable dance performed in front of an audience at a means of communication that is both unique and im- distance of one to six inches. portant" and for which there is no adequate substitute, particularly for persons of modest means); [FN9] VI. Martin v. City of Struthers, Ohio, 319 U.S. 141, 146, Alternative Channels of Communication 63 S.Ct. 862, 87 L.Ed. 1313 (1943) ("Door to door [19] The final attribute of a valid time, place and distribution of circulars is essential to the poorly fin- manner regulation is that it must "leave open ample anced causes of little people."). alternative channels for communication of the in-
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FN9. The Ladue Court noted, "[r]esidential enactment. As the Supreme Court noted in R.A.V. v. signs are an unusually cheap and convenient City of St. Paul, 505 U.S. 377, 112 S.Ct. 2538, 120 form of communication. Especially for per- L.Ed.2d 305 (1992), a "valid basis for according dif- sons of modest means or limited mobility, a ferential treatment to even a content-defined subclass yard or window sign may have no practical of proscribable speech is that the subclass happens to substitute. Even for the affluent, the added be *556 associated with ... 'secondary effects' of the costs in money or time of taking out a news- speech, so that the regulation is 'justified without ref- paper advertisement, handing out leaflets on erence to the content of the ... speech.' " Id. at 389, the street, or standing in front of one's house 112 S.Ct. 2538 (quoting Renton, 475 U.S. at 48, 106 with a handheld sign may make the differ- S.Ct. 925). Using this reasoning, we upheld an or- ence between participating and not particip- dinance prohibiting "tagging," the practice of distrib- ating in some public debate." Ladue, 512 uting flyers and soliciting funds from automobile pas- U.S. at 57, 114 S.Ct. 2038. The Court also sengers while stopped at red lights. Acorn v. City of noted that "Ladue's ordinance covers even Phoenix, 798 F.2d 1260 (9th Cir.1986). Although such absolutely pivotal speech as a sign the appellants, a non-profit group, had argued that protesting an imminent governmental de- tagging was a "uniquely effective method of fundrais- cision to go to war." Id. at 54, 114 S.Ct. ing," id. at 1271, we determined that the ordinance 2038 (internal citations omitted). was justified for traffic control and public safety pur- poses. Id. at 1268-70. See also Schenck v. Pro- Assuming arguendo that table dancing is a unique Choice Network of Western New York, 519 U.S. 357, form of expression, precedent indicates that unique- 117 S.Ct. 855, 866, 137 L.Ed.2d 1 (1997) (holding ness, alone, is insufficient to trigger separate First that public safety interests justified fifteen-foot "fixed Amendment protection. We recently emphasized buffer zone" separating abortion protestors from this point in One World One Family Now v. City and abortion clinics). The prohibitions in Acorn and County of Honolulu, 76 F.3d 1009 (9th Cir.1996). Schenck were upheld despite the fact that they were Acknowledging that a ban on wearing message-bear- analyzed under the rigorous standards applied to ing T-shirts would raise serious constitutional ques- speech regulation in traditional public forums, where tions, the same was not true for selling T-shirts: "the government's ability to permissibly restrict ex- "[W]e do not believe the sale of message-bearing T- pressive activity is very limited." United States v. shirts is so 'uniquely valuable or important [a] mode Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 75 of communication' as to be without effective substi- L.Ed.2d 736 (1983). [FN11] We conclude that table tute." Id. at 1015 (quoting City Council v. Taxpayers dancing in private nightclubs, with documented links for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 80 to prostitution and drug dealing, is a highly unlikely L.Ed.2d 772 (1984) (emphasis added)). [FN10] candidate for special protection under the First Amendment. FN10. The court elaborated on this point: "While selling T-shirts is a unique form of FN11. Traditional public forums are "places expression in the sense that serving mes- which by long tradition or government fiat sage-bearing raviolis or preaching on street have been devoted to assembly and debate." corners in a Donald Duck voice would be Perry Education Ass'n v. Perry Local Edu- unique, it does nothing to make the message cators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. uniquely significant or effective." One 948, 74 L.Ed.2d 794 (1983). Although in World, 76 F.3d at 1015. Acorn, we did not decide whether traffic- filled intersections should be considered [20] Appellants' argument misses a central point--in public forums, we nevertheless applied pub- assessing a First Amendment challenge, we look not lic forum analysis to the case. Acorn, 798 only at the private claims asserted in the complaint, F.2d at 1267. but into the governmental interests protected by the
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[21] In support of their claim that the Kent ordinance make it uneconomical and therefore impossible for effects a complete ban on a unique mode of expres- adult clubs to open and operate in the city. Appel- sion, Appellants borrow from public forum analysis lants allege that income from table dances is the main to argue that the applicable "forum" for a table dance source of revenue for Appellants' entertainers, who is not the whole cabaret, but merely the area required are not compensated for stage dances. Table *557 for performing the table dance. According to this ar- dancers in Appellants' establishments are independent gument, the ten-foot distance requirement fails to contractors who pay rental fees to the dance studios. leave open ample alternative avenues of expression These fees are a primary source of revenue for the within that forum. enterprise. Appellants allege that the four-foot dis- tance requirement imposed in Bellevue caused profits Although the time, place and manner test applied to to drop at their Bellevue establishment, requiring it to regulations affecting adult entertainment was initially close. [FN12] developed for speech in public forums, Appellants are incorrect in attempting to extend all aspects of the FN12. Appellants allege that, after a four- public forum principle to private nightclubs. Even foot setback requirement was effectuated in assuming the forum concept were applicable here, Bellevue, the average number of dancers per Appellants' argument fails due to the incongruity of week dropped from fifty to twelve, and its potential results. Following Appellants' logic, we thirty-eight dancers quit their jobs. Appel- would be required to provide separate First Amend- lants also noted that "few if any" patrons ment protection to so-called "lap dancing," arguably purchased table dances. another unique form of expressive conduct in which the nude or semi-nude dancer performs in the patron's [23] We recognize that determining whether a gov- lap. Any distance requirement, even a one-foot set- ernmental action will foreclose an entire medium of back, would amount to a flat ban on communication expression can be a difficult undertaking. In some within that "forum." cases, as in Ladue (signs) or Struthers (handbills), a ban will be evident from the face of the ordinance. Appellants' fluid definition of relevant forums, if car- In other instances, as in the case at bar, it is not. The ried to its logical conclusion, would require courts to test for determining whether an adult business' First subdivide audiences to the extent that any speech- Amendment rights are threatened is whether a the restrictive regulation would necessarily fail. Again, government has "effectively den[ied]" the business "a Appellant's theory would lead to the ironic result that reasonable opportunity to open and operate" within forms of expressive conduct with documented con- the city or area in question. Renton, 475 U.S. at 54, nections to criminal activity would enjoy special con- 106 S.Ct. 925. We elaborated on this test in Spokane stitutional protection. The district court was correct Arcade, Inc. v. City of Spokane, 75 F.3d 663 (9th in rejecting this proposition. If forum analysis is rel- Cir.1996). The test is whether a business could op- evant here, the appropriate forum is the entire cab- erate under the regulations at issue, not whether a aret. Even assuming that the audiences for table particular business will be able to compete success- dancing and stage dancing are distinguishable, there fully within the market. Id. at 666. [FN13] "[I]n the is undoubtedly a high degree of overlap. The ten-foot absence of any absolute bar to the market ... it is irrel- distance requirement does not rob dancers of their evant whether '[a regulation] will result in lost profits, forum or their entire audience. higher overhead costs, or even prove to be commer- cially unfeasible for an adult business'." Id. (quoting [22] Appellants also provide an economic argument Topanga Press, Inc. v. City of Los Angeles, 989 F.2d to support their claim that a ten-foot distance require- 1524, 1531 (9th Cir.1993)). ment would foreclose an entire medium of expres- sion. Appellants contend that the distance require- FN13. In other words, Spokane Arcade clari- ment and prohibition on tipping would prevent exotic fied that the scope of permissible economic dancers from making a living in Kent, and would analysis is whether one is permitted to enter
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or participate in the market in the first in- for communication of protected expression. The stance. Id. "Even if the costs of compliance judgment of the district court is were so great that [appellants] would be forced out of business, the ordinance[ ] AFFIRMED. do[es] not pose any intrinsic limitation on REINHARDT, Circuit Judge, dissenting: the operation of the [business]." Id. at 667. I respectfully dissent. I believe that the district court The market access test has been applied to adult zon- erred in granting summary *558 judgment. By re- ing cases, where total foreclosure of the market can quiring nude dancers to perform on a raised platform be ascertained by calculating available locational and to remain at least ten feet away from customers, sites. We have held unduly restrictive adult zoning the City of Kent effectively outlawed table-dancing. ordinances to be unconstitutional on this basis. See, The issue before us is whether table dancing consti- e.g., Walnut Properties, Inc. v. City of Whittier (Wal- tutes a separate form of expressive communication nut Properties II ), 861 F.2d 1102, 1110 (9th from other types of nude dancing-that is, whether ta- Cir.1988) (holding that zoning ordinance's acute re- ble dancers communicate a message different in con- striction on available acreage would deny adult theat- tent than that communicated by nude stage dancers, ers a reasonable opportunity to operate in the city, and other nude dancers who perform at a distance of and would force closure of all existing adult busi- more than ten feet from their customers. The appel- nesses). lants presented sufficient evidence to establish a tri- The analysis may be even more complicated when, as able issue of fact on that question. By doing so, they here, distance requirements are involved. However, have precluded a judicial determination that the or- Appellants have not presented economic evidence dinance is content-neutral as a matter of sufficient to show that the ten-foot distance require- law. Because the district court reached that very con- ment would serve as an absolute bar to market entry, clusion, I would reverse and remand for trial. as required under Spokane Arcade. Rather, Appel- As an initial matter, I disagree with Section III of the lants have merely shown a potential loss in profits, majority opinion, which resolves no legal issues, but which arguably could be remedied by restructuring seeks to leave the impression that nude dancing may the way they do business. The fact that Appellants merely be "low-value" speech entitled to "only mar- hire their dancers on an independent contractor basis, ginal First Amendment protection." The panel ad- refuse to pay their dancers for dancing on stage, re- mits that erotic dancing is constitutionally protected quire their dancers to pay rental fees, and limit their but claims that the extent of that protection is unclear, dancers' remuneration to tips from patrons, appears to thus implying that it is unnecessary to look too us to be an effort to maximize profits while minimiz- closely at the restrictions on speech at issue in this ing dancers' economic security. case. I disagree. In this Circuit, it is clear that nude As to Appellants' contention that table dancing is a erotic dancers are entitled to full First Amendment unique form of expression entitled to separate First protection for the expressive messages conveyed in Amendment analysis, this issue is not outcome de- their dancing. Kev, Inc. v. Kitsap County, 793 F.2d terminative, because uniqueness, alone, is insufficient 1053, 1058 (9th Cir.1986). to trigger special protection. I also disagree with the majority that the ten foot set- VII. back at issue in this case is content-neutral as a mat- For the reasons described herein, we determine that ter of law. A regulation on constitutionally protected the district court was correct in ruling as a matter of speech is content-neutral only if it is justified without law that the Kent ordinance is content neutral, and reference to the content of the regulated speech. City that the ten-foot distance requirement is narrowly of Renton v. Playtime Theatres, Inc., 475 U.S. 41, tailored and leaves open ample alternative avenues 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Kent's
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ordinance requires that all entertainers perform on a interest sent by the dancer's physical presence but stage at least two feet above the patron seating area, also by other nonverbal communication that is only and that no performer may dance any closer than ten possible in close quarters. Specifically, Hanna testi- (10) feet from any patron. The majority concludes fied that "proximity permits *559 eye contact and that this law is content-neutral because it is not con- awareness of indicators of attraction and satisfaction tent-based "on its face." such as the mouth position, eye brightness, pupil dila- tion and expansion, facial color, breath, perfume, and This determination obviously begs the question at is- body odors." sue here: what is the content of the message commu- nicated by the table dancer, as opposed to the stage Appellants also introduced the declaration of Dr. Ed- dancer? If it is the same message--only magnified ward Donnerstein, the chair of the University of Cali- by proximity--then the majority is correct. If, fornia-Santa Barbara Department of Communications however, stage dancers and table dancers communic- who has studied the impact of distance on audience ate different expressive content in their respective perceptions of erotic dance performances. Dr. Don- messages, then summary judgment was improper. nerstein, who was the lead social scientist called to Appellants argue that the ordinance on its face bans give expert testimony before former United States certain forms of communication because it bars close Attorney General Edwin Meese's Commission on physical proximity between dancers and patrons. Pornography, concluded that proximity is not merely They assert that proximity itself--the distance, or lack an incidental component of erotic dance but is integ- thereof, between the dancer and the patron--is integ- ral to the message itself. He concluded that ral to the message conveyed by table dancing. This The relational and erotic communication sought to message is entirely different, they contend, than the be communicated by erotic dance performance is message conveyed by stage dancers. significantly and substantially effected (sic), re- duced, and degraded by the requirement that per- In support of this contention, appellants proffered the formers be separated from their intended audience testimony of cultural anthropologist Judith Hanna, a by a minimum distance of ten (10) feet. Senior Research Scholar at the University of Mary- land. Hanna is the author of four books and approx- Both Hanna and Donnerstein contrasted the message imately 80 scholarly articles on the anthropology of sent by physical closeness with that sent by the dis- dance as non-verbal communication. She has con- tance imposed by stage dancing, which, Hanna testi- ducted extensive fieldwork in exotic dance establish- fied, transmits an entirely different signal: "coldness ments as well as interviews with dancers and pat- and impersonality." Appellants contend, with the rons. Hanna asserts that table dancers seek to send a support of their experts' declarations, that stage dan- message that is entirely different from that sent by cing communicates "the remoteness of the 'unreach- stage dancers: able' object of desire" through its use of distance. The message of the table dancer is personal interest Appellants, by producing these declarations, have in and understanding of the customer.... The enter- created a material question of fact regarding whether tainer creates an illusion of concern and availability table dancing is, as the district court and the majority for the customer and seeks to effect a transforma- conclude, merely stage dancing at a "louder volume," tion in the patron's feelings. Some customers get or whether it is an altogether different form of ex- the personal attention of an attractive female who pression that depends upon proximity, and commu- would not otherwise related to them or "give them nicates a different and particular content. the time of day;" some customers are reminded of what is to be desired. To the extent that a reasonable trier of fact might Hanna concluded that close proximity between the conclude that table dancing and stage dancing are dancer and the patron is an integral and essential part qualitatively distinct forms of expression, the ordin- of the message itself. This is so, according to ance is itself facially content-based. Moreover, evid- Hanna, not only because of the message of personal ence was adduced by appellants that Kent banned
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proximity precisely because it wants to constrain dan- cers from doing the very things that according to ap- pellants' experts are essential to the message-chiefly getting close enough to the patrons so that they can communicate the message in the form that only table dancing permits.
Given the circumstances set forth above, the factual issue created by appellants' expert testimony is one for a jury. It was not appropriate for the district court or this court to substitute its own views regard- ing the purpose and effect of table dancing and de- cide as a factual matter the content of the message conveyed by that form of expressive communica- tion. Accordingly, I would reverse the district court's grant of summary judgment.
163 F.3d 545, 98 Cal. Daily Op. Serv. 8965, 98 Daily Journal D.A.R. 12,449
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• 1997 WL 33574577 (Appellate Brief) Brief of Ap- pellee (Apr. 14, 1997)Original Image of this Docu- ment with Appendix (PDF)
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operator's challenge to county's exotic dancing regu- United States Court of Appeals, lations, where operator was reinstated as corporation Ninth Circuit. following cure of its problems with state authorities, KEV, INC., Plaintiff-Appellant, and certificate of reinstatement provided for back v. date of reinstatement to date of dissolution. KITSAP COUNTY and the Honorable Ray Aardal and John Horsley, County [2] Constitutional Law 258(2) Commissioners of Kitsap, etc., et al., Defendants-Ap- 92k258(2) Most Cited Cases pellees. Fundamental requirement of due process is that stat- No. 84-4088. ute clearly delineate conduct its proscribes. U.S.C.A. Const.Amend. 14. Argued and Submitted Aug. 8, 1985. Decided July 7, 1986. [3] Constitutional Law 258(2) 92k258(2) Most Cited Cases Operator of erotic dance facility challenged constitu- To avoid discriminatory or arbitrary enforcement, tionality of county ordinance regulating nonalcoholic due process requires that law set forth reasonably topless dancing establishments. The United States precise standards for law enforcement officials and District Court for the Western District of Washing- triers of fact to follow. U.S.C.A. Const.Amend. 14. ton, Barbara J. Rothstein, J., denied operator's motion for injunctive and declaratory relief, and operator ap- [4] Constitutional Law 82(3) pealed. The Court of Appeals, Pregerson, Circuit 92k82(3) Most Cited Cases Judge, held that: (1) provisions of ordinance defining Where First Amendment freedoms are at stake, great- erotic dance and prohibiting dancers from fondling er degree of specificity and clarity of laws is required and caressing any patron were not unconstitutionally than would otherwise be needed. U.S.C.A. vague; (2) county could license operators and dan- Const.Amends. 1, 14. cers; (3) five-day delay period between dancer's fil- [5] Obscenity 2.5 ing for application for license and grant of license un- 281k2.5 Most Cited Cases constitutionally burdened the dancer's First Amend- County regulation which defined erotic dance studio ment rights; (4) requirements of ordinance that oper- as fixed place of business which emphasized and ators of erotic dance studios maintain business re- sought, through one or more dancers, to arouse or ex- cords and complete list of all dancers, for inspection cite patron's sexual desires, provided adequate stand- by court, withstood constitutional challenge; and (5) ard for enforcement and gave fair warning to busi- regulation of manner in which dancing could be ex- ness it targeted, and therefore, was not void for hibited imposed reasonable time, place, and manner vagueness; one who exhibits erotic dancing with in- restrictions and did not violate First Amendment. tent to arouse sexual desires of his patrons would Affirmed in part, reversed in part. know that his business fell within purview of ordin- ance. U.S.C.A. Const.Amends. 1, 14. West Headnotes [6] Obscenity 2.5 [1] Federal Courts 13 281k2.5 Most Cited Cases 170Bk13 Most Cited Cases Fact that under county's definition of erotic dance Dissolution as corporation of operator of live enter- studio as place of business which emphasized and tainment facility due to its failure to comply with sought, through one or more dancers, to arouse or ex- state corporate licensing regulations did not divest cite patron's sexual desires, prosecutor alleging viola- district court of jurisdiction on ground of mootness of tion of ordinance would be required to prove intent of
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operator of business, did not by itself render ordin- tent neutral time, place, and manner regulations are ance void for vagueness. U.S.C.A. Const.Amends. 1, acceptable so long as they are designed to serve sub- 14. stantial governmental interest and do not unreason- ably limit alternative avenues of communication. [7] Obscenity 2.5 U.S.C.A. Const.Amend. 1. 281k2.5 Most Cited Cases Provision of county erotic dance regulations stating [13] Constitutional Law 90(1) that no dancer shall fondle or caress any patron and 92k90(1) Most Cited Cases no patron shall fondle or caress any dancer was not Regulation is content neutral for First Amendment void for vagueness; provision was easily understood purposes if it is justified without reference to content to prohibit sexual conduct between dancers and pat- of regulated speech. U.S.C.A. Const.Amend. 1. rons whom dancers intended to arouse sexually while dancers were acting in scope of their employment at [14] Constitutional Law 90.4(3) erotic dance studio, and to find violation of prohibi- 92k90.4(3) Most Cited Cases tion against caressing and fondling, prosecutors County's erotic dance ordinance aimed at alleviating would be required to prove dancer or patron engaged undesirable social problems that accompany erotic in specified act, fondling or caressing, with intent to dance studios, including drug dealing and prostitu- sexually arouse or excite. U.S.C.A. Const.Amends. 1, tion, was "content neutral" for First Amendment pur- 14. poses. U.S.C.A. Const.Amend. 1.
[8] Constitutional Law 90(1) [15] Constitutional Law 90.1(4) 92k90(1) Most Cited Cases 92k90.1(4) Most Cited Cases Degree of protection First Amendment affords Licensing requirement raises First Amendment con- speech does not vary with social value ascribed to cerns when it inhibits ability or inclination to engage that speech by courts. U.S.C.A. Const.Amend. 1. in protected expression. U.S.C.A. Const.Amend. 1.
[9] Constitutional Law 90.4(3) [16] Constitutional Law 90.1(4) 92k90.4(3) Most Cited Cases 92k90.1(4) Most Cited Cases Topless dancing is protected expression under First To avoid violating First Amendment protections, li- Amendment. U.S.C.A. Const.Amend. 1. censing requirement must provide narrow, objective, and definite standard to guide licensing authority. [10] Constitutional Law 90.4(3) U.S.C.A. Const.Amend. 1. 92k90.4(3) Most Cited Cases Although First Amendment coverage extends to top- [17] Constitutional Law 90.4(3) less dancing, it does not guarantee right to engage in 92k90.4(3) Most Cited Cases protected expression at all times and places or in any County could within ambits of First Amendment re- manner that may be desired. U.S.C.A. Const.Amend. quire operators of exotic dance studios and erotic 1. dancers to obtain licenses. U.S.C.A. Const.Amend. 1.
[11] Constitutional Law 90(3) [18] Constitutional Law 90.4(3) 92k90(3) Most Cited Cases 92k90.4(3) Most Cited Cases Governmental entity, when acting to further legitim- County erotic dance licensing regulation which re- ate ends of community, may impose incidental bur- quired operators and dancers to supply county with dens on free speech. U.S.C.A. Const.Amend. 1. various data, including name, address, phone number, and principal occupation, aliases, past and present, of [12] Constitutional Law 90(3) dancers, and business name and address where dan- 92k90(3) Most Cited Cases cer intended to dance, did not infringe upon any First While regulations that restrain speech on basis of Amendment rights; none of information required by content presumptively violate First Amendment, con- county unreasonably diminished inclination to seek
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license, and county had no discretion in issuing li- other, required that all dancing take place at least ten censes. U.S.C.A. Const.Amend. 1. feet from patrons and on stage raised at least two feet from floor, and prohibited patrons from tipping dan- [19] Constitutional Law 90.4(3) cers did not significantly burden First Amendment 92k90.4(3) Most Cited Cases rights, and did advance purpose of preventing patrons Although county could require exotic dancers to be and dancers from negotiating for narcotics transfers licensed, county could not impose five-day delay or sexual favors on premises of erotic dance studios, period between dancer's filing of application and and thus, ordinance was reasonable time, place, and county's granting of license; delay unreasonably pre- manner restrictions allowable under First Amend- vented dancer from exercising First Amendment ment. U.S.C.A. Const.Amend. 1. rights while application was pending. U.S.C.A. *1055 Jack R. Burns, Burns & Meyer, Bellevue, Const.Amend. 1. Wash., for plaintiff-appellant.
[20] Constitutional Law 90.4(3) Ronald A. Franz, Deputy Pros. Atty., Port Orchard, 92k90.4(3) Most Cited Cases Wash., for defendants-appellees. Five-day delay in granting license to operator of erot- ic dance studio did not burden operator's First An Appeal From United States District Court For the Amendment rights; delay was justified on ground that Western District of Washington. topless dancing establishments were likely to require significant reallocation of law enforcement resources. Before PREGERSON and WIGGINS, Circuit Judges, U.S.C.A. Const.Amend. 1. and SCHNACKE, District Judge. [FN*]
[21] Counties 55 FN* The Honorable Robert H. Schnacke, 104k55 Most Cited Cases United States District Judge, Northern Dis- Under Washington law, lack of severability clause in trict of California, sitting by designation. erotic dance ordinance of county did not require that PREGERSON, Circuit Judge. entire ordinance be declared unconstitutional by vir- tue of unconstitutional provision establishing five- Kev, Inc. challenges the constitutionality of a Kitsap day delay between erotic dancer's filing of applica- County ordinance regulating non-alcoholic topless tion for license and county's granting of license, dancing establishments and appeals from the district where effectiveness of ordinance did not depend on court's order denying its motion for injunctive and five-day delay period. declaratory relief. We affirm in part and reverse in part. [22] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases BACKGROUND County ordinance requiring operators of erotic dance Appellant, Kev, Inc., ("Kev"), a Washington corpora- studios to maintain business records and complete list tion, leased premises in Kitsap County ("the County") of all dancers, for inspection by county, although im- to operate a live entertainment facility called "Fantas- posing limited burden on operators of erotic dance ies," which was to feature topless dancing and sell studios, withstood constitutional challenge; burden non-alcoholic beverages to adults for consumption on on dance studios was significantly outweighed by ad- the premises. In early 1983, Kev secured the appro- vancement of county's interest in preventing infiltra- priate business licenses and began remodeling the tion of organized crime into studios. U.S.C.A. premises to commence business operations. Const.Amend. 1. [23] Constitutional Law 90.4(3) On January 24, 1983, the Kitsap County Board of 92k90.4(3) Most Cited Cases Commissioners proposed Ordinance No. 92, entitled County erotic dance ordinance which prohibited dan- "An Ordinance Regarding Erotic Dance Studios," to cers and patrons from fondling and caressing each regulate adult entertainment facilities. The stated
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purpose of the proposed ordinance was to regulate dissolved for failure to comply with state corporate topless dancing to minimize perceived *1056 side ef- licensing regulations. But, after curing the deficien- fects, such as illegal drug dealing, fights, and prosti- cies, Kev was reinstated as a corporation on April 24, tution, which would purportedly threaten the com- 1984. The certificate of reinstatement was back- munity's well-being. On February 7, 1983, the dated to and took effect as of the January 14, 1984 County held a public hearing on the proposed ordin- dissolution date. ance. Law enforcement officials from Kitsap and surrounding counties testified that "soft drink, topless After a hearing on Kev's motion for a preliminary in- dancing" establishments in adjacent counties were the junction, the district court held the closing hour pro- sites of crime problems such as prostitution and drug vision of the ordinance unconstitutional, but refused dealing. The County Board of Commissioners to enjoin enforcement of other provisions of the or- passed the proposed ordinance that same day. dinance pending a hearing on the merits. On July 19, 1984, following a hearing on the merits, the dis- On February 14, 1983, Kev filed suit, pursuant to 42 trict court found the ordinance constitutional in its U.S.C. § 1983, in the United States District Court for entirety. [FN1] Kev timely appealed. the Western District of Washington, seeking a pre- liminary and permanent injunction and a declaratory FN1. On March 21, 1985, however, the dis- judgment finding Ordinance No. 92 unconstitution- trict court ordered that its judgment be cor- al. Three weeks later, the County Board of Commis- rected to include its earlier holding that the sioners passed Ordinance No. 92-A as an amendment closing hour provision of the ordinance, sec- to Ordinance No. 92. Kev then filed an amended tion 9f, was unconstitutional. The County complaint challenging, on constitutional grounds, the does not challenge this holding on appeal. provisions of Ordinance No. 92 as amended by Or- DISCUSSION dinance No. 92-A ("the ordinance"). Primarily, Kev I. Jurisdiction alleges that topless dancing is entitled to first amend- [1] The County contends that the district court did not ment protection and that the ordinance unduly re- have jurisdiction when it entered judgment on July stricts the exercise of that protected right. 19, 1984. The County argues that because Kev was The ordinance defines an "erotic dance studio" as "a dissolved on January 14, 1984, there were no adverse fixed place of business which emphasizes and seeks, parties and, therefore, no case or controversy when through one or more dancers, to arouse or excite the the district court entered judgment on July 19, 1984. patrons' sexual desires." Sections 2c and 3a. The For the same reasons, the County argues that this ordinance regulates erotic dance studios in various court does not have jurisdiction in the present ap- ways. It requires licensing of erotic dance studios peal. We disagree. and their dancers. Sections 3-6. It also requires that Although Kev was "administratively dissolved" on dancers and patrons be at least eighteen years of January 14, 1984 for failure to comply with state cor- age; that dancing occur on a raised platform at least porate licensing regulations, it was reinstated as a ten feet from patrons; and that all books and records corporation on April 24, 1984 after curing its prob- of erotic dance studios be open to official inspec- lems with the state authorities. The certificate of re- tion. Sections 9d, e, i, j, and Section 10. The ordin- instatement provided that Kev's reinstatement dated ance also proscribes the sale or possession of intoxic- back to and took effect as of the January 14, 1984 ating liquor and controlled substances, Section dissolution. For *1057 this reason, we find the 9g; fondling or caressing between dancers and pat- County's motion to dismiss for mootness itself to be rons, Section 9k; and the payment or receipt of gra- moot. We, therefore, have jurisdiction to hear the tuities, Sections 9l and m. present appeal. On June 9, 1983, Kev opened the business to the pub- II. Standard of Review lic. On January 14, 1984, Kev was administratively
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This case presents questions of law, which we review the operator of the business does not by itself render de novo. See United States v. McConney, 728 F.2d the statute void for vagueness. See Boyce Motor 1195, 1202 (9th Cir.) (en banc), cert. denied, 469 Lines, Inc. v. United States, 342 U.S. 337, 342, 72 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). S.Ct. 329, 331, 96 L.Ed. 367 (1952) (statute requiring drivers transporting explosives to avoid crowded III. Merits thoroughfares, "so far as practicable," not void for A. Due Process vagueness since statute requires a knowing viola- tion); United States v. Doyle, 786 F.2d 1440, 1443 Kev contends that ordinance section 2e (defining (9th Cir.1986) (presence of scienter requirement in erotic dance studios) and section 9k (prohibiting dan- statute prohibiting sale, transportation, or receiving of cers from "fondling" or "caressing" any patron) are wildlife without a permit issued by the state enables unconstitutionally vague and thus violate due process law to withstand vagueness challenge). Thus, section requirements. We disagree. 2e provides an adequate standard for enforcement [2][3][4] A fundamental requirement of due process and gives fair warning to the business it targets. is that a statute must clearly delineate the conduct it [7] Section 9k provides that: "No dancer shall fondle proscribes. Grayned v. City of Rockford, 408 U.S. or caress any patron and no patron shall fondle or 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 caress any dancer." "Caressing" and "fondling" are (1972). Vague laws are offensive because they may ordinary, commonly used terms. Both words de- entrap the innocent by not giving fair warning of scribe forms of affectionate touching and are not lim- what conduct is prohibited. Id.; Papachristou v. City ited in meaning to affectionate touching that is sexu- of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, al. See Webster's Third New International Diction- 31 L.Ed.2d 110 (1972). Further, to avoid discriminat- ary 339, 883 (1971). However, in the context of the ory or arbitrary enforcement, due process requires other definitions provided in the ordinance, e.g., § 2c that laws set forth reasonably precise standards for ("[d]ancer--a person who dances or otherwise per- law enforcement officials and triers of fact to follow. forms for an erotic dance studio and who seeks to Smith v. Goguen, 415 U.S. 566, 572-73, 94 S.Ct. arouse or excite the patrons' sexual desires" 1242, 1246-47, 39 L.Ed.2d 605 (1974); Grayned, 408 (emphasis added)), section 9k is easily understood to U.S. at 108-09, 92 S.Ct. at 2298-99. Moreover, prohibit sexual conduct between dancers and patrons where first amendment freedoms are at stake, an even whom the dancers intend to arouse sexually while the greater degree of specificity and clarity of laws is re- dancers are acting in the scope of their employment quired. Grayned, 408 U.S. at 108-09, 92 S.Ct. at at the erotic dance studio. 2298-99; see also Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-218, 95 S.Ct. 2268, 2276-2277, 45 Further, to find a violation of the prohibition against L.Ed.2d 125 (1975); Goguen, 415 U.S. at 573, 94 "caressing" and "fondling," prosecutors must prove S.Ct. at 1247; Ashton v. Kentucky, 384 U.S. 195, 200, that a dancer or *1058 patron engaged in a specified 86 S.Ct. 1407, 1410, 16 L.Ed.2d 469 (1966). act, i.e., fondling or caressing with the intention to sexually arouse or excite. Section 9k thus provides [5][6] Section 2e defines an erotic dance studio as as an adequate standard for law enforcement officers. "a fixed place of business which emphasizes and Cf. Kolender v. Lawson, 461 U.S. 352, 358, 103 S.Ct. seeks, through one or more dancers, to arouse or ex- 1855, 1858, 75 L.Ed.2d 903 (1983) (ordinance re- cite the patron's sexual desires." The ordinance clas- quiring persons who loiter or wander the streets to sifies erotic dance studios according to the manifest provide "credible and reliable" identification and ac- intent of the operator of the studio. Thus, one who count for their presence held unconstitutional for fail- exhibits erotic dancing with an intent to arouse the ing to provide adequate law enforcement standards sexual desires of his patrons would know that his and to give fair warning of proscribed conduct). business falls within the purview of the ordinance. Since sections 2e and 9k provide adequate law en- The fact that the prosecutor must prove the intent of forcement standards and give fair warning of the pro-
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scribed conduct, the appellant's vagueness argument ascribed to the five justices in Young. See United fails. States v. Guarino, 729 F.2d 864, 868 n. 6 (1st Cir.1984) (en banc); Avalon Cinema Corporation v. B. First Amendment Violations Thompson, 667 F.2d 659, 663 n. 10 (8th Cir.1981) (en banc); Hart Bookstores, Inc. v. Edmisten, 612 Courts have considered topless dancing to be expres- F.2d 821, 826-28 (4th Cir.1979), cert. denied, 447 sion, subject to constitutional protection within the U.S. 929, 100 S.Ct. 3028, 65 L.Ed.2d 1124 (1980). free speech and press guarantees of the first [FN2] and fourteenth amendments. See Schad v. Borough [9][10][11][12][13] However, determining that top- of Mount Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, less dancing is protected expression does not end our 2180, 68 L.Ed.2d 671 (1981); Doran v. Salem Inn, inquiry. Although first amendment coverage ex- Inc., 422 U.S. 922, 932-33, 95 S.Ct. 2561, 2568-69, tends to topless dancing, it "does not guarantee the 45 L.Ed.2d 648 (1975); Chase v. Davelaar, 645 F.2d right to [engage in the protected expression] at all 735, 737 (9th Cir.1981). times and places or in any manner that may be de- sired." See Heffron v. International Society for FN2. The first amendment to the United Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 States Constitution provides in relevant part: S.Ct. 2559, 2564, 69 L.Ed.2d 298 (1981). A govern- "Congress shall make no law ... abridging mental entity, when acting to further legitimate ends the freedom of speech, or of the press...." of the community, may impose incidental burdens on This Amendment is made applicable to the free speech. City of Renton v. Playtime Theatres, states by the Due Process Clause of the Inc., 475 U.S. 41, 106 S.Ct. 925, 928-29, 89 L.Ed.2d Fourteenth Amendment. Edwards v. South 29 (1986). While regulations that restrain speech on Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, the basis of content presumptively violate the first 683, 9 L.Ed.2d 697 (1963). amendment, " 'content-neutral' time, place, and man- [8] The County erroneously asserts that even if top- ner regulations are acceptable so long as they are de- less dancing were protected by the first amendment, signed to serve a substantial governmental interest it is not entitled to the same degree of protection af- and do not unreasonably limit alternative avenues of forded speech clearly at the core of first amendment communication." Id. 106 S.Ct. at 928. A regulation values. In support of its assertion, the County relies is "content-neutral" if it is "justified without reference on Justice Stevens's statement in the plurality opinion to the content of the regulated *1059 speech." Id. at in Young v. American Mini Theatres, Inc., 427 U.S. 929 (emphasis in original) (quoting Virginia Phar- 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), that "soci- macy Board v. Virginia Citizens Consumer Council, ety's interest in protecting [erotic expression] is of a Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 wholly different, and lesser, magnitude than the in- L.Ed.2d 346 (1976)). [FN3] terest in untrammeled political debate...." 427 U.S. at FN3. See also United States v. O'Brien, 391 70, 96 S.Ct. at 2452. However, only three other U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 justices (Chief Justice Burger, Justices White and L.Ed.2d 672 (1968) (holding that a content Rehnquist) concurred in that statement. The County neutral regulation that imposes an incidental fails to recognize that five other justices in Young burden on speech is sufficiently justified if: concluded that the degree of protection the first [1] it is within the constitutional power of amendment affords speech does not vary with the so- the government; [2] it furthers an important cial value ascribed to that speech by the courts. Id. at or substantial governmental interest; [3] the 73 n. 1 (Powell, J., concurring), 84-85, 96 S.Ct. at governmental interest is unrelated to the 2453 n. 1, 2459-2460 (Stewart, J., dissenting, joined suppression of free expression; and [4] the by Brennan, J., Marshall, J., and Blackmun J.). This incidental restriction on first amendment view continues to govern. Several circuits that have freedoms is no greater than is essential to the considered this question have adopted the position furtherance of that interest). In United
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States v. Albertini, 472 U.S. 675, 105 S.Ct. terests: reduced criminal activity through 2897, 2907, 86 L.Ed.2d 536 (1985), the Su- the regulation of erotic dance studios versus preme Court clarified the fourth O'Brien the protected rights of erotic dancers and factor, noting that "an incidental burden on their patrons. speech is no greater than is essential, and therefore is permissible under O'Brien, so Kev contends that the ordinance violates the first long as the neutral regulation promotes a amendment because: (a) it limits the location where substantial government interest that would dancers may perform; (b) it burdens a dancer's per- be achieved less effectively absent the regu- formance by requiring a license, prohibiting the ac- lation." ceptance of gratuities, restraining erotic dancers from exercising their first amendment rights until they are [14] The stated purpose of the County's ordinance is licensed, and prohibiting erotic dancers, in exercising to alleviate undesirable social problems that accom- their first amendment rights, from mingling with pat- pany erotic dance studios, not to curtail the protected rons; and (c) it places a reporting and inspection bur- expression--namely, the dancing. [FN4] At a hearing den upon a business based solely on its first amend- on the proposed ordinance, the County presented ment activities. evidence that drug dealing, prostitution, and other so- cial ills accompany topless dancing establishments. a. License Requirements See California v. LaRue, 409 U.S. 109, 111, 93 S.Ct. The ordinance requires that all operators of erotic 390, 393, 34 L.Ed.2d 342 (1972). Law enforcement dance studios and all erotic dancers obtain licenses officials from Kitsap and neighboring counties testi- from the County. To obtain a license, a prospective fied that these problems had been associated with operator must supply the County with various data erotic dance studios in other counties. The Super- including: his or her name, address, phone number, visor of the Vice Control Department of Kings and principal occupation; similar information for all County testified that close contact between dancers partners in the venture; and descriptions of the pro- and patrons facilitates prostitution. The County has posed establishment, the nature of the proposed busi- a legitimate and substantial interest in preventing so- ness, and the magnitude thereof. A dancer applying cial problems that accompany erotic dance studios for a license must provide the County: his or her and threaten the well-being of the community. See name, address, phone number, birth date, "aliases Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d (past and present)," and the business name and ad- 1243, 1246 (9th Cir.1982) (upholding regulation re- dress where the dancer intends to dance. quiring "open booths" in adult film arcades). Thus, [15][16] It is well established that the government we conclude that the ordinance is content-neutral be- may, under its police power, require licensing of vari- cause it is justified without "reference to the content ous activities involving conduct protected by the first of the regulated speech." See Renton, 106 S.Ct. at amendment. See, e.g., American Mini Theatres, 427 929; Virginia Pharmacy, 425 U.S. at 771, 96 S.Ct. at U.S. at 62, 96 S.Ct. at 2448; *1060 Shuttlesworth v. 1830. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. FN4. Section 1 of the ordinance states: 935, 938-39, 22 L.Ed.2d 162 (1969); Tyson & Broth- Purpose. The purpose of this ordinance is er--United Theatre Ticket Offices, Inc. v. Banton, 273 to regulate erotic dance studios to the end U.S. 418, 430, 47 S.Ct. 426, 428, 71 L.Ed. 718 that the many types of criminal activities (1927) ("The authority to regulate the conduct of a frequently engendered by such studios will business or to require a license, comes from a branch be curtailed. However it is recognized that of the police power...."); see also Genusa v. City of such regulation cannot de facto approach Peoria, 619 F.2d 1203, 1212-13 (7th Cir.1980) (court prohibition. Otherwise a protected form of relied on American Mini Theatres in upholding expression would vanish. This ordinance simple license requirement for operators of adult represents a balancing of competing in- bookstores). A licensing requirement raises first
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amendment concerns when it inhibits the ability or [19][20][21] However, although the County may re- the inclination to engage in the protected expres- quire dancers to be licensed, the County has failed to sion. See Thomas v. Collins, 323 U.S. 516, 65 S.Ct. demonstrate a need for section 7d's five-day delay 315, 89 L.Ed. 430 (1945) (requirement that union or- period between the dancer's filing of an application ganizers register with state unconstitutionally inhibits and the County's granting of a license. The ordin- free expression). Further, a licensing requirement ance unreasonably prevents a dancer from exercising must provide "narrow, objective, and definite stand- first amendment rights while an application is ards to guide the licensing authority." Shuttlesworth, pending. Because the County has not justified the 394 U.S. at 150-51, 89 S.Ct. at 938-39. five-day delay permitted by the statute with respect to the dancer's license application, this provision is un- Here, there is no suggestion that the licenses required constitutional. [FN6] Thus, we hold section 7d of the either to operate, or to perform in, a topless facility ordinance unconstitutional. [FN7] would be difficult to obtain or would for some other reason discourage either a prospective operator from FN6. Kev also asserts that the five-day delay exhibiting dancing, or a prospective dancer from per- in granting the license to operate an erotic forming. None of the information required by the dance studio burdens the operators first County unreasonably diminishes the inclination to amendment rights. We conclude, however, seek a license. [FN5] Moreover, the County has no that the County presented a sufficiently discretion in issuing the licenses. Sections 4 and 7 compelling justification for this delay. provide that both licenses would be issued automatic- The County contends that topless dancing ally by the County within five days. establishments are likely to require a signi- ficant reallocation of law enforcement re- FN5. Kev argues that requiring the dancer to sources. As the district court concluded, provide a list of "aliases (past and present)" "[b]ecause such resources in Kitsap County unjustifiably invades the dancer's privacy. In are limited, five days to adjust is reason- Genusa v. City of Peoria, 619 F.2d 1203 able. There is no reason for a new studio (7th Cir.1980), the Seventh Circuit invalid- operator not to apply for a license one week ated a similar requirement for operators of before he plans to open his facility." Thus, adult book stores, noting that the "alias dis- there seems to be an important justification closure requirement involves an invasion of for the five-day waiting period in licensing privacy not justified by the zoning interest dance establishments. and is not otherwise justified." Id. at 1216. In the instant case, the alias disclosure re- FN7. In striking down section 7d, we note quirement for dancers is justified by the that the Kitsap ordinance contains a severab- County's substantial interest in preventing ility clause. Under Washington law, a stat- prostitution in erotic dance studios. The re- ute is not to be declared unconstitutional in quirement will enable the County to monitor its entirety unless the remainder of the act is more effectively dance studios employing incapable of achieving the legislative pur- known prostitutes. poses. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 105 S.Ct. 2794, 2803, 86 [17][18] Further, both license requirements serve val- L.Ed.2d 394 (1985). Because the effective- id governmental purposes. By monitoring erotic ness of this ordinance does not depend on dancers and erotic dance studios, the County can al- the five-day period between the filing of an locate law enforcement resources to ensure compli- application for a license and its mandatory ance with the ordinance. Thus, we conclude that the granting by the County, we need not strike County may require operators of erotic dance studios down the ordinance in its entirety. and erotic dancers to obtain licenses. *1061 b. Business Records Requirement
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[22] Sections 9b and 9c of the ordinance require op- Sections 9l and 9m provide: erators of erotic dance studios to maintain business No patron shall directly pay or give any gra- records and complete lists of all dancers, for inspec- tuity to any dancer [and n]o dancer shall so- tion by the County. [FN8] licit any pay or gratuity from any patron."
FN8. Section 9b requires that: The alleged purpose of these requirements is to pre- No later than March 1 of each year an erotic vent patrons and dancers from negotiating for narcot- dance studio licensee shall file a verified re- ics transfers and sexual favors on the premises of an port with the Auditor showing the licensee's erotic dance studio. Separating dancers from patrons gross receipts and amounts paid to dancers would reduce the opportunity for prostitution and for the preceding calendar year. narcotics transactions. [FN10] Similarly, prohibiting Section 9c provides: dancers and patrons from engaging in sexual fondling An erotic dance studio licensee shall main- and caressing in an erotic dance studio would prob- tain and retain for a period of two (2) years ably deter prostitution. [FN11] Preventing the ex- the names, addresses, and ages of all persons change of money between dancers and patrons would employed as dancers by the licensee. also appear to reduce the likelihood of drug and sex transactions occurring on regulated premises. Although the business records requirements may im- pose a limited burden on operators of erotic dance FN10. The County presented testimony that studios, the burden is significantly outweighed by the close contact between dancers and patrons advancement of the County's interest in preventing facilitated these transactions. the infiltration of organized crime into erotic dance studios. The business records requirements are no FN11. As we construe section 9k to prohibit more burdensome than the requirements placed on a only sexual fondling and caressing occurring myriad of other businesses and substantially further in an erotic dance studio, we reject Kev's ar- the County's interest. Thus, these regulations do not gument that the ordinance is overbroad. violate the first amendment. Our holding today does not address the dan- cers' and the patrons' right of privacy to as- c. Regulations Affecting Dancing sociate freely with each other under other [23] The ordinance also regulates the manner in circumstances. We hold simply that be- which dancing may be exhibited. The ordin- cause of the County's legitimate and sub- ance: (1) prohibits dancers and patrons from fond- stantial interest in preventing the demon- ling and caressing each other; (2) requires that all strated likelihood of prostitution occurring dancing take place at least ten feet from the patrons in erotic dance studios, the County may pre- and on a stage raised at least two feet from the vent dancers and patrons from sexually floor; and (3) prohibits patrons from tipping dancers. touching each other while the dancers are [FN9] acting in the scope of their employment.
FN9. Section 9i provides: Further, these regulations do not significantly burden All dancing shall occur on a platform inten- first amendment rights. While the dancer's erotic ded for that purpose which is raised at least message may be slightly less effective from ten feet, two feet (2') from the level of the floor. the ability to engage in the protected expression is not Section 9j provides: significantly impaired. [FN12] Erotic dancers still No dancing shall occur closer than ten feet have reasonable access to their market. See Ellwest (10') to any patron. Stereo Theatres, 681 F.2d at 1246 (open booths regu- Section 9k provides: No dancer shall fondle lation *1062 did not affect access to adult films). or caress any patron and no patron shall Similarly, while the tipping prohibition may deny the fondle or caress any dancer. patron one means of expressing pleasure with the
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dancer's performance, sufficient alternative methods of communication exist for the patron to convey the same message. Thus, the regulations are reasonable time, place, and manner restrictions that only slightly burden speech.
FN12. In International Society for Krishna Consciousness, 452 U.S. at 650-51, 101 S.Ct. at 2565-66, the Supreme Court noted that "consideration of a forum's special at- tributes is relevant to the constitutionality of a regulation since the significance of the governmental interest must be assessed in the light of the characteristic nature and function of the particular forum involved." Given the characteristics of erotic dance stu- dios, the ordinance does not impair the dan- cer's ability to display her art.
IV. Conclusion Except for the five-day delay between the dancer's filing of an application for a license and the mandat- ory granting of the license by the County, Kitsap County's regulations of erotic dance studios are reas- onable time, place, and manner restrictions, justified without reference to the content of the protected ex- pression. Thus, we REVERSE as to the provision permitting the five day delay in granting the dancer's license and AFFIRM the other provisions. Each side to bear its own costs.
793 F.2d 1053
END OF DOCUMENT
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shall be given opportunity of trial court to judge cred- ibility of witnesses. Briefs and Other Related Documents [2] Federal Courts 776 United States Court of Appeals, 170Bk776 Most Cited Cases Ninth Circuit. District court's conclusions of law are reviewed de SPOKANE ARCADE, INC.; and World Wide Video novo. of Washington, Inc., Plaintiffs- Appellants, [3] Constitutional Law 90.4(4) v. 92k90.4(4) Most Cited Cases CITY OF SPOKANE, Defendant-Appellee. Adverse economic impact caused to adult entertain- No. 94-35931. ment business as result of complying with city ordin- ances, which required that interior of adult video ar- Argued and Submitted Dec. 7, 1995. cade booths be visible to employees in adjacent pub- Decided Jan. 24, 1996. lic room and that at least one employee be situated in that room whenever customer was present, was irrel- Adult entertainment businesses brought action evant in determining whether ordinances were invalid against city, alleging that city ordinances which re- restrictions on manner in which protected speech quired that interior of adult video arcade booths be could be expressed but, rather, issue was whether visible to employees in adjacent public room and that challenged ordinances prohibited entry into adult en- at least one employee be situated in that room tertainment market. U.S.C.A. Const.Amend. 1; whenever customer was present were invalid restric- Spokane, Wash., Code §§ 10.08.100(D), tions on manner in which protected speech could be 10.08.110(A). expressed. The United States District Court for the Eastern District of Washington, Wm. Fremming [4] Constitutional Law 90.4(4) Nielsen, Chief Judge, rejected claim that ordinances 92k90.4(4) Most Cited Cases were unconstitutional. Businesses appealed. The City ordinances, which required that interior of adult Court of Appeals, D.W. Nelson, Circuit Judge, held video arcade booths be visible to employees in adja- that ordinances were constitutional since they did not cent public room and that at least one employee be prohibit adult entertainment businesses from enga- situated in that room whenever customer was present, ging in that protected speech which would allow did not unconstitutionally prohibit adult entertain- them to compete in adult entertainment market, but ment business from engaging in that protected speech merely provided that costs of doing so might in- which would allow it to compete in adult entertain- crease. ment market, but merely provided that costs of doing so might increase. U.S.C.A. Const.Amend. 1; Affirmed. Spokane, Wash., Code §§ 10.08.100(D), West Headnotes 10.08.110(A). *664 Gilbert H. Levy, Seattle, Washington, for [1] Federal Courts 844 plaintiffs-appellants Spokane Arcade and World 170Bk844 Most Cited Cases Wide Video.
[1] Federal Courts 850.1 Patricia Connolly Walker, Assistant City Attorney, 170Bk850.1 Most Cited Cases Spokane, Washington, for defendant-appellee City of Following bench trial, judge's findings of fact, wheth- Spokane. er based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard Appeal from the United States District Court for the
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Eastern District of Washington. through inspections due to safety concerns. The Task Force presented evidence to the City Council Before: D.W. NELSON and JOHN T. NOONAN, Jr., that the configuration of the arcades and the lack of Circuit Judges, and TANNER, District Judge [FN*]. adequate *665 staffing "creat[ed] the risk of officers encountering in progress criminal activity." FN* The Honorable Jack E. Tanner, Senior Moreover, the Task Force maintained that "due to the District Judge for the Western District of maze-type design currently in place, it would be diffi- Washington, sitting by designation. cult for officers to tactically retreat should the need D.W. NELSON, Circuit Judge: arise."
Appellants Spokane Arcade and World-Wide Video The Task Force suggested that a clear view into the ("World Video") brought this action against Appellee arcades and doorways that opened into an adjacent City of Spokane, alleging that ordinances promul- public room would reduce the potential for crime. gated by the city which regulated adult arcades were Accordingly, the city promulgated ordinances which invalid restrictions on the manner in which protected provided, inter alia, that all arcade booths be "open to speech may be expressed. World Video maintains an adjacent public room so that the area inside is vis- that in order to comply with the ordinances it will ible by direct line of sight to persons in the adjacent have to hire more employees, thus increasing its public room," and that "[t]here must be at least one payroll expenses and decreasing its profits; it con- employee on duty and situated in the public room ad- tends that because of this alleged inability to make an jacent to the adult arcade stations or booths at all adequate profit, it will in effect be denied access to times that any patron ... is present inside the the adult entertainment market. The district court, premises." S.M.C. §§ 10.08.100(D), 10.08.110(A). however, rejected its claim, and held that in determ- World Video challenged the ordinances in the district ining whether the First Amendment had been viol- court, alleging that under the test enunciated by the ated, the relevant inquiry turned on whether the Supreme Court in City of Renton v. Playtime plaintiffs were free to engage in their protected Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 speech and not on whether the regulation at issue res- L.Ed.2d 29 (1986), reh'g denied, 475 U.S. 1132, 106 ulted in decreased profits. We affirm. S.Ct. 1663, 90 L.Ed.2d 205 (1986), they were invalid BACKGROUND restrictions on the manner in which speech may be Appellants Spokane Arcades and World Wide Video expressed. The challenge relevant to this appeal ("World Video") operate adult arcades in the City of centered on those sections of the ordinances which Spokane. In the arcades, patrons enter booths and required that the interior of the booths be visible to insert tokens or coins to watch sexually explicit employees in an adjacent public room and that at videos. World Video also sells sexually explicit least one employee be situated in that room whenever books, videotapes, magazines and novelties; these a customer was present. World Video maintained materials are located in a retail room off the entrance that it would have to hire additional employees in or- of the stores, while the viewing booths are in a video der to ensure that the booths were visible to employ- viewing room in the back. There is only one clerk ees in the adjacent room, and argued that because of on duty at a time, and s/he is stationed in the retail the revenue that would be lost as a result of the open room. booth requirement, the additional payroll expense would severely decrease the arcades' profitability and In the spring of 1993, the Mayor of Spokane appoin- would unduly restrict World Video's ability to engage ted a task force to study the problems associated with in protected expression. The district court disagreed, adult arcades, some of which included drug usage effectively dismissing World Video's economic im- and sexual conduct between patrons in the video pact arguments as it held that the ordinances did not booths. These problems were compounded by the deny World Video reasonable alternative avenues of fact that police officers were unable to conduct walk- communication.
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STANDARD OF REVIEW when evaluating whether a particular relocation site [1][2] Following a bench trial, the judge's findings of is in fact part of the real estate market." Id. at 1530. fact, whether based on oral or documentary evidence, However, we emphasized that a "question of purely shall not be set aside unless clearly erroneous, and economic injury is not relevant to the issue of wheth- due regard shall be given the opportunity of the trial er a moving party faces hardship if a restrictive zon- court to judge the credibility of the witnesses. ing ordinance is enforced." Id. at 1528. We thus Fed.R.Civ.P. 52(a). See Price v. United States Navy, made the important distinction between "considera- 39 F.3d 1011, 1021 (9th Cir.1994); Saltarelli v. Bob tion of economic impact within an actual business Baker Group Medical Trust, 35 F.3d 382, 384 (9th real estate market and consideration of cost to de- Cir.1994). The district court's conclusions of law are termine whether a specific relocation site is part of reviewed de novo. Price, 39 F.3d at 1021. the relevant market," id., noting that only the latter was permissible in the examination of alleged First DISCUSSION Amendment violations. As an initial matter, we take note of the fact that World Video's contention that additional employees [4] Accordingly, the Topanga test requires an exam- would have to be hired in order to comply with the ination of whether a challenged provision prohibits ordinances is not well-supported by the record. Ex- entry into a market where the aggrieved party might cept for the requirement that "[t]here must be at least exercise her rights, and distinguishes this inquiry one employee on duty and situated in the public room from any examination of success within the market at adjacent to the adult arcade stations or booths at all issue. A review of the restrictions in this matter times that any patron ... is present," S.M.C. § demonstrates that they do not serve as such an abso- 10.08.110(A), the ordinances do not regulate the lute bar to market entry. The ordinances do not pro- number of employees that must be present in an es- hibit World Video from engaging in that protected tablishment. In addition, the city presented evidence speech which will allow it to compete in the adult en- that there were design options available to World tertainment market, but merely provide that the costs Video which would permit it to conduct retail sales of doing so may increase. This type of "injury," and arcade viewing in the same room. however, should not inform First Amendment analys- is: in Topanga, we cautioned against inquiring into [3] Even if World Video demonstrated that the hiring the costs of continued market participation, and lim- of additional employees was unavoidable, the adverse ited the scope of permissible economic analysis to an economic impact it posits is irrelevant to First examination of whether one is permitted to enter or Amendment analysis. Addressing the constitutional- participate in the market in the first instance. ity of a municipal zoning ordinance which strictly regulated the establishment of adult businesses, this World Video attempts to distinguish the instant mat- court in Topanga Press Inc. v. City of Los Angeles, ter from this court's holding in Kev, Inc. v. Kitsap 989 F.2d 1524 (9th Cir.1993), cert. denied, 511 U.S. County, 793 F.2d 1053, 1061 (9th Cir.1985), where 1030, 114 S.Ct. 1537, 128 L.Ed.2d 190 (1994), dis- we held that an ordinance which required that exotic cussed the extent to which economic considerations dancers perform at least 10 feet away from patrons, could inform the analysis of time, place and manner and on a stage raised at least 2 feet from the floor, did restrictions. The appellants in Topanga, a group of not deny the dancers "reasonable access to their mar- adult businesses, argued that the city provided an in- ket." Id. at 1061. Unlike the ordinance there at issue, sufficient number of sites for the businesses and that World Video contends that the contested provisions enforcement of the ordinance would thus cause irre- in this case will deny it access to the adult entertain- parable *666 injury. We held that the relevant in- ment market "by making it totally unprofitable for quiry was whether the government denied the busi- them to operate their businesses." nesses the opportunity to open and operate their es- tablishments, and suggested that in order to so de- Not only does this argument erroneously assume that termine, it was appropriate "to consider economics the only determinant of profitability is payroll costs,
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an assumption we will not indulge, but it also reflects Employees suggests that they must not be denied the a deep misunderstanding of the market access/market opportunity to enter into a market where they might success distinction articulated in Topanga. In To- be compensated for such expression. See also To- panga, we maintained that in the absence of any ab- panga, 989 F.2d at 1529 ("The test for determining solute bar to the market (in that case, relocation to a whether the Adult Businesses' First Amendment site that would deny a business the opportunity to rights are threatened is whether a local government open and operate), it is irrelevant whether "[a regula- has 'effectively den[ied] [them] a reasonable oppor- tion] will result in lost profits, higher overhead costs, tunity to open and operate.' ") or even prove to be commercially unfeasible for an adult business." 989 F.2d at 1531. See also Walnut The ordinances promulgated by the city in this case Properties v. City of Whittier, 861 F.2d 1102, 1109 do not deny World Video the opportunity to operate (9th Cir.1988), cert. denied, 490 U.S. 1006, 109 S.Ct. its establishments, but merely (or rather, allegedly) 1641, 104 L.Ed.2d 157 (1989), (distinguishing increase the costs of its doing so. Even if the costs between intrinsic limitations and limitations resulting of compliance were so great that World Video would from the imposition of market forces). Thus, an ab- be forced out of business, the ordinances do not pose solute bar in this matter would be a regulation that any intrinsic limitation on the operation of the ar- prohibited arcade owners from engaging in their pro- cades, but merely increase World Video's vulnerabil- tected speech, and not one that merely prohibited ity to such market forces as the increased costs of them from realizing the profits to which they were labor and the decreased or stagnant demand for por- accustomed. nography. Accordingly, we hold that the ordinances constitute valid manner restrictions. Furthermore, World Video attempts to rely upon the Supreme Court's recent opinion in United States v. The judgement of the district court is AFFIRMED. National Treasury Employees Union, 513U.S. 454, 75 F.3d 663, 24 Media L. Rep. 1475, 96 Cal. Daily 115 S.Ct. 1003, 130 L.Ed.2d 964 (1995) in support of Op. Serv. 490, 96 Daily Journal D.A.R. 797 its economic impact argument. In Treasury Employ- ees, the Court held that § 501(b) of the Ethics in Gov- Briefs and Other Related Documents (Back to top) ernment Act of 1978, which prohibited the receipt of honoraria by government employees, violated the • 1995 WL 17077062 (Appellate Brief) Brief of Ap- First Amendment. The court held that the prohibi- pellee (May. 04, 1995)Original Image of this Docu- tion on compensation unduly burdened "expressive ment (PDF) activity": "Publishers compensate authors because compensation provides a significant incentive toward • 1995 WL 17077061 (Appellate Brief) Brief of Ap- more expression. By denying respondents that in- pellant (Apr. 30, 1995)Original Image of this Docu- centive, the honoraria ban induces them to curtail ment (PDF) their expression if they wish to continue working END OF DOCUMENT *667 for the government." Id. at ----, 115 S.Ct. at 1014.
Treasury Employees, however, is entirely consistent with the test articulated by this court in Topanga and can be distinguished easily from the instant matter. The prohibition at issue in Treasury Employees had the effect of not merely reducing the value of the em- ployees' speech, but rather of barring them from the market in which that speech might be expressed. That they could have engaged in such acts of expres- sion without compensation was irrelevant; Treasury
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showing insures that expression protected by First United States Court of Appeals, Amendment will not be unduly inhibited by regula- Ninth Circuit. tion of its form. U.S.C.A.Const.Amend. 1. ELLWEST STEREO THEATRES, INC., a corpora- tion, Plaintiff-Appellant, [3] Constitutional Law 90.4(4) v. 92k90.4(4) Most Cited Cases Paul WENNER, Individually and as the treasurer of (Formerly 92k90.1(6)) the City of Phoenix, Lawrence City ordinance requiring that viewing areas of booths Wetzel, individually and as the chief of police of the in which coin operated viewing devices are located City of Phoenix, be visible from a continuous aisle is not unconstitu- Defendants-Appellees. tional on its face as violative of free speech provision No. 80-5732. of Constitution in that ordinance is aimed at curtail- ing public sexual criminal offenses and as such Argued and Submitted Jan. 8, 1982. clearly seeks to further significant state interests. Decided July 23, 1982. U.S.C.A.Const.Amends. 1, 14.
Theater operating movie arcade in which members of [4] Constitutional Law 90.4(4) public paid to view sexually explicit films in booths 92k90.4(4) Most Cited Cases brought action challenging constitutionality of city (Formerly 92k90.1(6)) ordinance requiring that viewing areas of booths in City ordinance requiring that viewing areas of booth which coin-operated viewing devices are located be in which coin-operated viewing devices are located visible from continuous main aisle. The United States be visible from continuous main aisle is reasonable District Court for the District of Arizona, C. A. regulation of manner in which films may be viewed Muecke, Chief Judge, held that ordinance was reas- as well as shown. U.S.C.A.Const.Amends. 1, 14. onable regulation of operation of theaters not based upon content of films shown. Appeal was taken. The [5] Constitutional Law 82(10) Court of Appeals, Schroeder, Circuit Judge, held that 92k82(10) Most Cited Cases city ordinance was not violative on its face of free The "right" to unobserved masturbation in a public speech or privacy clauses of Constitution. theater is not "fundamental" or "implicit in the concept of ordered liberty." U.S.C.A.Const.Amends. Affirmed. 1, 14.
West Headnotes [6] Constitutional Law 82(7) 92k82(7) Most Cited Cases [1] Constitutional Law 90.4(1) City ordinance requiring that viewing areas of booths 92k90.4(1) Most Cited Cases in which coin-operated viewing devices are located (Formerly 92k90.1(1)) be visible from continuous main aisle is not unconsti- Obscene materials are not protected speech within tutional on its face as violative of privacy provisions meaning of First Amendment as applied to states of Constitution. U.S.C.A.Const.Amends. 1, 14. through Fourteenth Amendment. U.S.C.A.Const.Amends. 1, 14. [7] Constitutional Law 42.2(1) 92k42.2(1) Most Cited Cases [2] Constitutional Law 90(1) Theater challenging city ordinance requiring that 92k90(1) Most Cited Cases viewing areas of booths in which coin-operated view- Regulations of time, place, or manner of protected ing devices are located be visible from continuous speech will be upheld if necessary to further signific- main aisle did not have standing to assert Fourth ant governmental interests, and requiring such a
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Amendment rights of its customers which might arise days of the effective date of the ordinance. from police surveillance of open booths in arcades that have complied with ordinance. Ellwest is a "video center" within the meaning of the U.S.C.A.Const.Amend. 4. ordinance and thus is required to obtain a license. Ell- *1244 Richard J. Hertzberg, Phoenix, Ariz., for west applied for a license without complying with s plaintiff-appellant. 7-30(a)(6) as set forth above. The application was denied on the ground that the viewing areas of the Sandra K. McGee, Phoenix, Ariz., for defendants-ap- booths were not visible from a continuous main aisle. pellees. The City alleges that the ordinance was passed as a Appeal from the United States District Court for the response to complaints that the display of adult films District of Arizona. in the arcades was causing sex-related criminal activ- ity. The parties stipulated that "(s)ome customers in Before CHAMBERS, KENNEDY and the booths viewing the films will, on occasion, take SCHROEDER, Circuit Judges. the opportunity to fondle themselves or masturbate." The parties further stipulated that in the two years SCHROEDER, Circuit Judge. preceding this lawsuit, "(t)here were 783 sex-related Appellant Ellwest Stereo Theatres ("Ellwest") oper- arrests in the eleven business establishments located ates a Phoenix, Arizona movie arcade in which mem- in the City of Phoenix which have video viewing bers of the public pay to view sexually explicit films devices such as Plaintiff's displaying 'adult' films. in booths. Ellwest brought suit challenging the con- Sex-related offenses include public sex indecency, stitutionality of a City of Phoenix ordinance requiring public sexual activity, indecent exposure, and lewd that the viewing areas of booths in which coin oper- and lascivious conduct." [FN1] ated viewing devices are located be visible from a FN1. Ellwest does not challenge the state's continuous main aisle. On the basis of stipulated power to criminalize public sexual activity. facts, the district court held that the ordinance was a The stipulated facts amply support the City's reasonable regulation of the operation of theaters not contention that such activity occurs with based upon the content of the films shown, and great frequency in arcades where movies are entered judgment in favor of the City. We affirm. exhibited in enclosed booths. Chapter VII of the Phoenix City Code requires, inter The sole issue presented, as framed by Ellwest in its alia, that anyone engaged in running a "video center" appellate brief, is whether the ordinance "requiring obtain a license from the city. Section 7-3(a) (a) open booths in motion picture arcades is unconstitu- defines a "video center" as "(a)ny establishment open tional on its face as violative of the Free Speech and to the public wherein are operated any film or video- Privacy provisions of the United States Constitution." tape viewing device (sic)." Section 7-30(a)(6) provides as follows: First, Ellwest argues that its own exercise of first (6) Position of film or video viewing device in amendment rights is limited by the ordinance. video center. Second, Ellwest asserts infringement of the constitu- *1245 (a) Definition for purposes of this section. tional rights of its customers under the first and four- (1) Viewing area-area where patron or customer teenth amendments. Each of these contentions will be would ordinarily be positioned while watching a analyzed in turn. film or video viewing device. (b) All viewing areas must be visible from a con- CLAIMED INFRINGEMENT OF ELLWEST'S tinuous main aisle and must not be obscured by any CONSTITUTIONAL RIGHTS curtain, door, wall, or other enclosure. (1) We begin with the proposition that Ellwest has a (c) All persons regulated pursuant to this Chapter constitutional right to exhibit its films. It is settled must comply with Section 7-30(a)(6) within 30 that obscene materials are not protected speech with-
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in the meaning of the first amendment, as applied to be upheld if necessary to further significant govern- the states through the fourteenth amendment. Gins- mental interests. Requiring such a showing insures berg v. New York, 390 U.S. 629, 635, 88 S.Ct. 1274, that expression protected by the first amendment will 1278, 20 L.Ed.2d 195 (1968); Smith v. California, not be unduly inhibited by regulation of its form. 361 U.S. 147, 152, 80 S.Ct. 215, 218, 4 L.Ed.2d 205 Reasonable regulations of the time, place, and (1959); Roth v. United States, 354 U.S. 476, 485, 77 manner of protected speech, where those regula- S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957). The City tions are necessary to further significant govern- does not contend, however, that the films are ob- mental interests, are permitted by the First Amend- scene, or that their content is undeserving of first ment. See, e.g., Kovacs v. Cooper, 336 U.S. 77 (69 amendment protection for any other reason. See New S.Ct. 448, 93 L.Ed. 513) (limitation on use of York v. Ferber, 458 U.S. 747, ----, 102 S.Ct. 3348, sound trucks); Cox v. Louisiana, 379 U.S. 559 (85 3358, 72 L.Ed.2d ---- (1982). Thus, we must assume S.Ct. 476, 13 L.Ed.2d 487) (ban on demonstrations their dissemination by Ellwest is protected by the in or near a courthouse with the intent to obstruct first amendment. Joseph Burstyn, Inc. v. Wilson, 343 justice); Grayned v. City of Rockford, 408 U.S. U.S. 495, 501-02, 72 S.Ct. 777, 780, 96 L.Ed. 1098 104 (92 S.Ct. 2294, 33 L.Ed.2d 222) (ban on will- (1952). ful making, on grounds adjacent to a school, of any noise which disturbs the good order of the school Ellwest does not nor could it successfully contend session). that the Phoenix ordinance regulates speech on the basis of content.[FN2] The ordinance does not pro- Young v. American Mini Theatres, Inc., 427 U.S. 50, hibit the showing of any film whatever. Ellwest may 63 n.18, 96 S.Ct. 2440, 2448 n.18, 49 L.Ed.2d 310 still exhibit any film it wishes, and its discretion in (1976). selecting those films is unbridled by the ordinance. "There is no claim that distributors or exhibitors of (3) Ellwest contends that the ordinance is not justi- adult films are denied access to the market or, con- fied as a reasonable regulation of the time, place, and versely, that the viewing public is unable to satisfy its manner of protected speech. It needs no extended dis- appetite for sexually explicit fare." *1246Young v. cussion, however, to uphold the open booth require- American Mini Theatres, Inc., 427 U.S. 50, 62, 96 ment against this line of attack. The ordinance, as the S.Ct. 2440, 2448, 49 L.Ed.2d 310 (1976). This is not parties have stipulated, is aimed at curtailing public an ordinance which prohibits the showing of any con- sexual criminal offenses and as such it clearly seeks stitutionally protected film. We thus are not faced to further significant state interests.[FN3] In this re- with the considerations which recently led us to hold spect we agree with the conclusion of the California that a prohibition on all topless entertainment was un- court of appeal upholding the ordinance upon which constitutional on its face as overbroad. Chase v. Dav- the Phoenix City Council patterned its own enact- elaar, 645 F.2d 735 (9th Cir. 1981). See also ment. That court explained the problem giving rise to Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 the prohibition of enclosed booths and concluded that S.Ct. 2268, 45 L.Ed.2d 125 (1975). the ordinance furthered significant interests of the city. FN2. The ordinance by its terms applies to all enclosed video viewing booths regardless FN3. In Young v. American Mini Theatres, of the type of film shown. Its reach is not Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d limited to booths in which "adult" films are 310 (1976), the Court observed that a zoning displayed. Nor does Ellwest make a claim of regulation requiring geographic dispersion discriminatory enforcement. of licensed theaters does not, in itself, create an impermissible (2) The ordinance does regulate the manner in which restraint on protected communication. The films chosen by Ellwest may be shown. Regulations city's interest in planning and regulating the of the time, place, or manner of protected speech will use of property for commercial purposes is
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clearly adequate to support that kind of re- vacy rights of the patrons of its establishment. striction applicable to all theaters within the city limits. In short, ... the regulation of the We observe initially that the Supreme Court has nev- place where such films may be exhibited er held that an owner of a theater has standing to as- does not offend the First Amendment. sert the constitutional rights of its customers. In Paris Id. at 62-3, 96 S.Ct. at 2448 (footnote omit- Adult Theatre I v. Slaton, 413 U.S. 49, 65, 93 S.Ct. ted). 2628, 2639, 37 L.Ed.2d 446 (1973), the Court as- sumed for purposes of argument that the owner had "A picture arcade is a business, carried on in a such vicarious standing, and we do the same here. place which the public generally is invited to enter and use. Since it is a place of entertainment, its pat- (4) The considerations discussed with respect to the rons are not expected to enter with the solemnity of owner's right to exhibit the films apply with equal a business visitor at a mercantile establishment. Or- force to the alleged interference with the first amend- dinarily those entering a picture arcade are seeking ment rights of patrons to view the films. The ordin- amusement, relaxation or excitement, possibly ance is a reasonable regulation of the manner in sexual stimulation or gratification depending on the which films may be viewed as well as shown. See taste or mood of the individual and the kind of pic- Young v. American Mini Theatres, Inc., 427 U.S. 50, tures exhibited. Among such visitors it is foresee- 79-80, 96 S.Ct. 2440, 2456-57, 49 L.Ed.2d 310 able that some will be predisposed to conduct (1976) (Powell, J., concurring); United States v. which is offensive, dangerous to others and even O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 unlawful. The potential for misuse of the premises, L.Ed.2d 672 (1968); EWAP, Inc. v. City of Los for law violations, and for bodily harm to law- Angeles, 97 Cal.App.3d 179, 189-90, 158 Cal.Rptr. abiding patrons, is obvious, as is the concomitant 579, 585-86 (1979). need for (deterring such conduct)." Ellwest also contends that the open booth require- The City has a substantial interest in preventing the ment has a chilling effect on the exercise by potential kind of dangerous or unlawful conduct, as well as customers of the constitutionally protected right to the health and safety problems, which may be anti- view the exhibited films. Citing NAACP v. Alabama, cipated in a picture arcade where the booths are 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958), concealed or enclosed. The prohibition of such Ellwest urges that a law that exposes to public view booths furthers the City's interest in deterring and the identities of persons engaged in unpopular but detecting the use of the premises for such unlawful nevertheless protected activity impermissibly chills activity. the right by subjecting those who would exercise it to *1247EWAP, Inc. v. City of Los Angeles, 97 the possibility of vilification or recrimination. Cal.App.3d 179, 189-90, 158 Cal.Rptr. 579, 585 We are not authorized, however, to determine the (1979), quoting People v. Perrine, 47 Cal.App.3d validity or invalidity of a statute or ordinance in the 252, 258, 120 Cal.Rptr. 640, 643-44 (1975). See also abstract. There is nothing in the record that supports DeMott v. Board of Police Comm'rs, 122 Cal.App.3d the suggestion that, because of the open booth re- 296, 175 Cal.Rptr. 879 (1981). quirement, potential viewers forego their right to We similarly hold that the ordinance does not imper- watch films of their choice. By Ellwest's own admis- missibly infringe upon Ellwest's first amendment sion, its customers must enter the establishment from rights. a busy public street. We presume that those who enter are just as easily identified at the time they CLAIMED INFRINGEMENT OF CUSTOMERS' enter as they would be while in an open booth watch- CONSTITUTIONAL RIGHTS ing a movie. There is no basis to conclude that poten- Ellwest argues alternatively that the ordinance imper- tial viewers are more intimidated by the prospect of missibly impinges upon the first amendment and pri- being identified once inside than they are by that of
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being seen upon entering the arcade in the first place. privacy guaranteed by the Fourteenth Amendment in- If that is Ellwest's contention, the record should so cluded 'only personal rights that can be deemed "fun- demonstrate. Some factual support is required before damental" or " implicit in the concept of ordered a federal court will pass upon the constitutionality of liberty." ' " Id. at 65, 93 S.Ct. at 2639, quoting, inter a law that allegedly chills the exercise of first amend- alia, Palko v. Connecticut, 302 U.S. 319, 325, 58 ment rights. See Laird v. Tatum, 408 U.S. 1, 12-16, S.Ct. 149, 151, 82 L.Ed. 288 (1937). 92 S.Ct. 2318, 2325-27, 33 L.Ed.2d 154 (1972). (5) While we certainly agree with Ellwest that its cus- Ellwest's major concern is not with its patrons' first tomers have a constitutional right to view its films, amendment rights to view the films, but rather with we cannot agree that the interest in simultaneously an alleged infringement of their right to privacy. The engaging in sexual activity is similarly protected. We essence of the argument is that the customers have a decline to hold that the "right" to unobserved mas- constitutional right to fondle themselves; therefore, turbation in a public theater is "fundamental" or "im- argues Ellwest, the City may not constitutionally re- plicit in the concept of ordered liberty." quire that the theater open the booths and thus chill the patrons' exercise of the right to masturbate. (6)(7) Ellwest also cites a number of cases which deal not with the right to privacy but with the fourth We assume with a fair degree of confidence that the amendment right to be free from unreasonable activities Ellwest seeks to protect may be enjoyed searches and seizures. See, e.g., Katz v. United without governmental interference in the sanctity of States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 the customers' homes. Ellwest must establish, (1967). Ellwest seems to equate the ordinance requir- however, that there is a constitutional right to engage ing open video booths with police use of peep holes in such activities in a public place. That issue has in public toilets. See, e.g., People v. Triggs, 8 Cal.3d been decided against Ellwest in Paris Adult Theatre I 884, 106 Cal.Rptr. 408, 506 P.2d 232 (1973); Bielicki v. Slaton, 413 U.S. 49, 65-67, 93 S.Ct. 2628, v. Superior Court, 57 Cal.2d 602, 21 Cal.Rptr. 552, 2639-40, 37 L.Ed.2d 446 (1973). The Court there 371 P.2d 288 (1962); 1 W. LaFave, Search and held that the constitutionally protected right to watch Seizure: A Treatise on the Fourth Amendment s obscene movies in the privacy of one's own home did 2.4(c) (1978). The record here does not indicate, not import a similar right to watch the same movies however, either the nature or extent of police surveil- in a public place. The court reasoned that while lance of open booths in arcades that have complied *1248 viewing obscene movies in one's home, Stan- with the ordinance. Moreover, any threat of "dragnet ley v. Georgia, 394 U.S. 557, 568, 89 S.Ct. 1243, searches" or "spying" is not a threat to Ellwest's 1249, 22 L.Ed.2d 542 (1969), and engaging in sexual fourth amendment interests, but to the interests of its intercourse in the marital bedroom, Griswold v. Con- patrons. "Fourth amendment rights are personal rights necticut, 381 U.S. 479, 485-86, 85 S.Ct. 1678, 1682, ... which may not be vicariously asserted." Rakas v. 14 L.Ed.2d 510 (1965), are both protected by the Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-25, constitutional right to privacy, that protection ceases 58 L.Ed.2d 387 (1978), quoting Alderman v. United when the locus of the conduct shifts to a place of States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 public accommodation such as a theater. The Court L.Ed.2d 176 (1969). See also United States v. Payner, "declined to equate the privacy of the home relied on 447 U.S. 727, 731-37, 100 S.Ct. 2439, 2443-47, 65 in Stanley with a 'zone' of 'privacy' that follows a dis- L.Ed.2d 468 (1980). Thus Ellwest has no standing to tributor or a consumer ... wherever he goes. The idea assert the fourth amendment rights of its customers. of a 'privacy' right and a place of public accommoda- Such a claim is premature in any event, in the ab- tion are, in this context, mutually exclusive." Paris sence of a showing that such searches have indeed Adult Theatre, supra, 413 U.S. at 66, 93 S.Ct. at 2639 been conducted.[FN4] (citations omitted). In defining the limits of the con- stitutional right to privacy, the Court invoked Justice FN4. On the prematurity point, see the dis- Cardozo: "(o)ur prior decisions recognizing a right to cussion in California Bankers Ass'n v.
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Shultz, 416 U.S. 21, 94 S.Ct. 1494, 39 L.Ed.2d 812 (1974) (passim). Cf. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed.2d 154 (1972) (mere fear of future detrimental action by government insuffi- cient to state justiciable claim under first amendment).
Accordingly, we hold that the open booth ordinance is not facially unconstitutional. The judgment of the district court is affirmed.
681 F.2d 1243
END OF DOCUMENT
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Const.Amend. 1.
Briefs and Other Related Documents [2] Constitutional Law 90.4(5) 92k90.4(5) Most Cited Cases United States Court of Appeals, Seventh Circuit. [2] Intoxicating Liquors 15 G.M. ENTERPRISES, INC., Plaintiff-Appellant, 223k15 Most Cited Cases v. Town ordinances that barred establishment from TOWN OF ST. JOSEPH, WISCONSIN, Defendant- selling alcoholic beverages if dancer performing on Appellee. premises exposed any "specified anatomical area," No. 03-1428. and also required that such dancer perform on stage at least 18 inches above and five feet away from pat- Argued Sept. 16, 2003. rons, did not regulate activity protected under First Decided Nov. 25, 2003. Amendment. U.S.C.A. Const.Amend. 1. Rehearing and Rehearing En Banc Denied Feb. 09, 2004. [3] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases Owner of adult-oriented business sued town pursuant In the First Amendment context, requirement that to § 1983, challenging constitutionality of town or- dancers wear pasties and G-strings has only a de min- dinances that regulated manner in which nude dan- imis effect on the expression conveyed by nude dan- cers performed in any "sexually oriented business" cing. U.S.C.A. Const.Amend. 1. and prohibited establishments licensed to sell alco- holic beverages from permitting nude dancing on the [4] Constitutional Law 90.4(5) premises. The United States District Court for the 92k90.4(5) Most Cited Cases Western District of Wisconsin, John C. Shabaz, J., First Amendment does not entitle either dancers or granted summary judgment for town. Owner ap- patrons to have alcohol available during a presenta- pealed. The Court of Appeals, Flaum, Chief Judge, tion of nude or semi-nude dancing. U.S.C.A. held that: (1) challenged ordinances did not regulate Const.Amend. 1. constitutionally protected activity; (2) as an issue of first impression, ordinance prohibiting physical con- [5] Constitutional Law 90.4(3) tact between nude dancers and patrons did not violate 92k90.4(3) Most Cited Cases First Amendment; (3) challenged ordinances were [5] Public Amusement and Entertainment subject to intermediate scrutiny under First Amend- 9(2) ment; (4) business failed to undermine validity of 315Tk9(2) Most Cited Cases town ordinances; and (5) town was not required to es- (Formerly 376k3.50 Theaters and Shows) tablish that studies upon which it relied in enacting Town ordinance prohibiting physical contact between ordinances were of sufficient methodological rigor to nude dancers and their patrons did not violate First satisfy Daubert test. Amendment, inasmuch as physical contact was bey- Affirmed. ond the scope of protected expressive activity of nude dancing. U.S.C.A. Const.Amend. 1. West Headnotes [6] Constitutional Law 90.4(5) [1] Constitutional Law 90.4(3) 92k90.4(5) Most Cited Cases 92k90.4(3) Most Cited Cases Town ordinances that barred establishment from Nude dancing is expressive conduct within the outer selling alcoholic beverages if dancer performing on ambit of the First Amendment's protection. U.S.C.A. premises exposed any "specified anatomical area,"
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and required that such dancer perform on stage at tutional so long as they are designed to serve a sub- least 18 inches above and five feet away from pat- stantial government interest and do not unreasonably rons, had incidental effect on protected expression limit alternative avenues of communication. U.S.C.A. and thus had to meet First Amendment standards to Const.Amend. 1. be valid. U.S.C.A. Const.Amend. 1. [7] Constitutional Law 90.4(1) [11] Constitutional Law 90.4(2) 92k90.4(1) Most Cited Cases 92k90.4(2) Most Cited Cases In addressing First Amendment challenge to regula- Regulations of public nudity aimed at suppressing tion of adult-oriented business, court must first verify secondary effects of such speech are analyzed under that predominate concerns motivating regulation O'Brien intermediate scrutiny test, which asks (1) were with secondary effects of adult speech, rather whether regulating body had power to enact regula- than content of adult speech, and, if so, court then ap- tion, (2) whether regulation furthers important or sub- plies intermediate scrutiny to regulation. U.S.C.A. stantial governmental interest, (3) whether that in- Const.Amend. 1. terest is unrelated to suppression of free expression, and (4) whether regulation's incidental impact on ex- [8] Constitutional Law 90.4(1) pressive conduct is no greater than is essential to the 92k90.4(1) Most Cited Cases furtherance of that interest. U.S.C.A. Const.Amend. To survive step of First Amendment analysis requir- 1. ing that ordinance regulating adult-oriented business be targeted at secondary effects of adult speech to be [12] Constitutional Law 90.4(5) subject to intermediate scrutiny, rationale of ordin- 92k90.4(5) Most Cited Cases ance must be that it will suppress secondary effects, [12] Intoxicating Liquors 15 and will do so by means other than by suppressing 223k15 Most Cited Cases speech. U.S.C.A. Const.Amend. 1. Adult-oriented business failed to undermine validity, [9] Constitutional Law 90.4(5) under First Amendment, of town ordinances barring 92k90.4(5) Most Cited Cases establishment from selling alcoholic beverages if Town ordinances barring establishment from selling dancer performing on premises exposed any "spe- alcoholic beverages if dancer performing on premises cified anatomical area," and requiring that such dan- exposed any "specified anatomical area," and requir- cer perform on stage at least 18 inches above and five ing that such dancer perform on stage at least 18 feet away from patrons, despite offering evidence inches above and five feet away from patrons, were that arguably undermined town's inference of correla- motivated by interest in reducing secondary effects tion between adult entertainment and adverse second- associated with adult speech, rather than interest in ary effects, including study questioning methodology suppressing speech, and thus were subject to interme- employed in numerous studies relied upon by town diate scrutiny under First Amendment, in that ordin- board, evidence of increased property values near ances did not prohibit nude dancing, but rather sought business, and evidence that most police calls in- to minimize factors that town board believed would volving business did not occur when semi-nude dan- heighten probability that adverse secondary effects cing was being performed; such evidence showed would result from nude dancing, and restrictions only that board could have reached different and were not triggered if all dancers chose to wear de equally reasonable conclusion. U.S.C.A. minimis clothing necessary to cover all "specified Const.Amend. 1. anatomical parts." U.S.C.A. Const.Amend. 1. [13] Constitutional Law 82(10) [10] Constitutional Law 90.4(1) 92k82(10) Most Cited Cases 92k90.4(1) Most Cited Cases In reviewing regulation of adult-oriented business un- Zoning regulations of adult businesses aimed at sup- der intermediate scrutiny standard for First Amend- pressing secondary effects of adult speech are consti- ment claims, court is not required to re-weigh the
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evidence considered by a legislative body, nor is it in any "sexually oriented business," and Ordinance empowered to substitute its judgment as to whether a 2001-03, which prohibits establishments licensed to regulation will best serve a community, so long as sell alcoholic beverages from permitting nude dan- regulatory body has satisfied requirement that it con- cing on the premises, violate the First and Fourteenth sider evidence reasonably believed to be relevant to Amendments. We conclude that the record supports the problem addressed. U.S.C.A. Const.Amend. 1. the Town's claim that the ordinances are not an at- tempt to regulate the expressive content of nude dan- [14] Constitutional Law 90.4(1) cing, but that the Town had a reasonable basis for be- 92k90.4(1) Most Cited Cases lieving that the ordinances will reduce the undesir- [14] Public Amusement and Entertainment able "secondary effects" associated with sexually ori- 9(1) ented businesses, and therefore, we affirm. 315Tk9(1) Most Cited Cases (Formerly 376k2 Theaters and Shows) I. Background To defeat First Amendment challenge to ordinances In 1999, the Town Board ("Board") of the Town of regulating adult-oriented businesses, town was not re- St. Joseph ("Town"), an unincorporated town in Wis- quired to establish that studies upon which it relied in consin, began to consider whether to regulate sexu- enacting ordinances were of sufficient methodologic- ally oriented businesses located within its borders. al rigor to satisfy Daubert test for admissibility of The Board collected sixteen studies regarding the re- specialized expert testimony, but rather only had to lationships between sexually oriented businesses and show that it relied on some evidence in reaching reas- property values, crime statistics, public health risks, onable conclusion as to secondary effects of adult- illegal sexual activities such as prostitution, and or- oriented businesses targeted by ordinances. U.S.C.A. ganized crime. These studies, undertaken in various Const.Amend. 1. communities throughout the country, demonstrated a correlation between sexually oriented businesses [15] Constitutional Law 90.4(1) *634 and negative secondary effects. The Board also 92k90.4(1) Most Cited Cases consulted a number of judicial opinions from other For ordinance targeting secondary effects of adult- jurisdictions that address adverse secondary effects oriented speech to withstand intermediate scrutiny associated with sexually oriented businesses. Further, under First Amendment, municipality need not prove the Board considered police reports of calls made in efficacy of its rationale for reducing secondary ef- regards to each licensed liquor establishment in St. fects prior to implementation. U.S.C.A. Joseph for the period of 1989 through 1999, fur- Const.Amend. 1. nished by the St. Croix County Sheriff's Department. *633 Randall D.B. Tigue (argued), Minneapolis, MN, The sheriff informed the Board that the sheriff de- for Plaintiff-Appellant. partment had "received far more calls regarding the Cajun Club [the Town's sole sexually oriented busi- Richard M. Burnham (argued), Lafollette, Godfrey & ness licensed to sell alcoholic beverages] than we Kahn, Madison, WI, for Defendant-Appellee. have for the other liquor establishment in the Town Before FLAUM, Chief Judge, and DIANE P. WOOD of St. Joseph that do[es] not offer sexually oriented and WILLIAMS, Circuit Judges. entertainment such as nude dancing." The studies, ju- dicial opinions, and police reports were available to FLAUM, Chief Judge. members of the Board for their consideration.
G.M. Enterprises, Inc., owner of the Cajun Club of In June 2001, the Board adopted Ordinance 2001-02, the Town of St. Joseph, Wisconsin, appeals the Dis- which was codified under the town code, Chapter trict Court's grant of summary judgment to the Town 153, entitled "Sexually Oriented Businesses." "Sexu- upholding the constitutionality of two town ordin- ally oriented businesses," as defined by § 153-4, in- ances. G.M. argues that Ordinance 2001-02, which clude "business[es] featuring adult entertainment." regulates the manner in which nude dancers perform "Adult entertainment," as defined by § 153-4, is any
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"live performance, display or dance of any type No.2001-02, the Board adopted Ordinance which has as a significant or substantial portion ... No.2001-03, codified under Chapter 114, Article VI characterized by an emphasis on ... viewing of spe- of the town code, entitled "Nude Dancing in Licensed cified anatomical areas." § 153-4. According to § Establishments Prohibited." Ordinance *635 153-4, "[s]pecified anatomical areas" include: No.2001-03 applies to "[a]ny establishment licensed A. The human male genitals in a discernible turgid by the Town Board ... to sell alcohol beverages." § state, even if fully and opaquely covered; or 114-19. Under Ordinance No.2001-03, B. Less than completely and opaquely covered hu- [i]t is unlawful for any person to perform or engage man genitals, pubic region, anus, anal cleft or in ... any live act, demonstration, dance or exhibi- cleavage; or tion on the premises of a licensed establishment C. Less than completely and opaquely covered which: nipples or areolas of the human female breast. A. Shows his/her genitals, pubic area, vulva, anus, anal cleft or cleavage with less than a fully opaque Ordinance 2001-02, published in Section 153-3(A), covering. prohibits sexually oriented businesses from allowing B. Shows the female breast with less than a fully any: opaque covering of any part of the nipple and are- person, employee, entertainer or patron ... to have ola. any physical contact with any entertainer on the C. Shows the human male genitals in a discernibly premises of a sexually oriented business during any turgid state, even if fully and opaquely covered. performance ... all performances shall occur on a § 114-17. The Board expressed its intent in regards to stage or table that is elevated at least 18 inches Ordinance 2001-03 by stating in Section 114-16 that: above the immediate floor level and shall not be the Town Board is aware, based on the experiences less than 5 feet from any area occupied by any pat- of other communities, that bars and taverns, in ron. which live, totally nude, non-obscene, erotic dan- Further, § 153-5(B) prohibits the "sale, use or con- cing occurs may and do generate secondary effects sumption of alcoholic beverages on the premises of a which the Town Board believes are detrimental to sexually oriented business." the public health, safety and welfare ... the Town Board desires to minimize, prevent and control The Board stated in § 153-1 that its motivation for these adverse effects ... the Town Board has de- passing this ordinance was that it: termined that the enactment of an ordinance pro- finds that sexually oriented businesses are fre- hibiting live, totally nude, non-obscene, erotic dan- quently used for unlawful sexual activities ... and ... cing in bars and taverns licensed to serve alcoholic concern over sexually transmitted diseases is a le- beverages promotes the goal of minimizing, pre- gitimate health concern of the Town Board ... there venting and controlling the negative secondary ef- is convincing documented evidence that sexually fects associated with such activity. oriented businesses have a deleterious effect on both the existing businesses around them and the The plaintiff in this action, G.M. Enterprises, oper- surrounding residential areas adjacent to them, ates the Cajun Club ("Club") of St. Joseph. The Club causing increased crime and the downgrading of enjoys a St. Joseph liquor license and, for 16 years, property values; and, whereas, the Town Board de- has served alcohol and offered semi-nude, topless sires to minimize and control these adverse second- dance entertainment. It is uncontested that G.M. is a ary effects... and, whereas it is not the intent of this "sexually oriented business" subject to Ordinances chapter to suppress any speech activities protected Nos.2001-02 and 2001-03, as its dancers expose "spe- by the First Amendment, but to ... address[ ] the cified anatomical areas." G.M. filed a complaint in negative secondary effects of sexually oriented the United States District Court, Western District of businesses. Wisconsin, pursuant to 42 U.S.C. § 1983, seeking de- claratory and injunctive relief and alleging that the Concurrent with the adoption of Ordinance
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ordinances are unconstitutional. The complaint al- the hours when no nude or semi-nude dancing enter- leged that the Board did not rely on adequate evid- tainment was offered. G.M. also submitted a state- ence to demonstrate the necessity of the ordinances to ment by the sheriff that the volume of police calls combat adverse secondary effects; that the ordinances generated by the Club were unrelated to nude dan- prohibit more expression than is necessary to combat cing. any adverse secondary effects that might be caused by adult entertainment; and further that Ordinance The district court entered judgment in favor of the No.2001-03 expressly conditions the grant of a liquor Town, finding that the ordinances do not impermiss- license, a government benefit, on the surrender of the ibly infringe on G.M.'s constitutional rights, and fur- constitutional right to freedom of expression. ther that G.M.'s challenge to the Town's secondary effects rationale did not raise an issue of material fact The Town moved for summary judgment, arguing to allow the case to proceed to trial. G.M. now ap- that the Board relied on an adequate evidentiary peals. foundation to reasonably believe that the ordinances would reduce adverse secondary effects. In support II. Discussion of its motion, the Town submitted an affidavit by the We review the District Court's grant of summary city clerk attesting to the Board's access to the stud- judgment de novo, construing the facts in the record ies, cases, and police reports relied upon in its delib- in favor of G.M., the non-moving party. Ben's Bar v. erations, and further that every member of the Board Village of Somerset, 316 F.3d 702, 707 (7th "spent time reviewing the materials." The Town also Cir.2003). submitted an affidavit by the county sheriff attesting [1][2] Nude dancing is expressive conduct "within to the fact that more police calls were made in re- the outer ambit of the First Amendment's protection." gards to the Club than any other liquor establishment City of Erie v. Pap's A.M., 529 U.S. 277, 289, 120 in the Town. S.Ct. 1382, 146 L.Ed.2d 265 (2000). The ordinances In its opposition to the Town's motion, G.M. ques- at issue regulate nude dancing in two ways. If a dan- tioned the Board's conclusion that the ordinances cer exposes any "specified anatomical area," then the would have the effect of minimizing adverse second- establishment where he or she performs must (1) not ary effects. G.M. argued that the Board did not actu- sell any alcoholic beverages, § 153-3(B), § 114-17, ally review or rely on the studies and cases that it and (2) require that he or she perform on a stage at gathered. G.M. presented a study by Bryant Paul, least eighteen inches above and five feet away from Daniel Linz & Bradley *636 Shafer that finds the ma- patrons, as required by § 153-3(A). However, neither jority of the studies the Board collected "fundament- requirement is implicated if dancers cover all "spe- ally unsound," and methodologically flawed, and also cified anatomical areas" during performances, and submitted an affidavit of Daniel Linz that discusses neither ordinance prohibits nude dancing outright. the study. G.M. further argued that the Board's find- [3][4][5][6] Still, plaintiff argues that Ordinances ings are contrary to the locality's actual experience, Nos.2001- 02 and 2001-03 regulate constitutionally and, in support, referred to a 1993 study of the county protected activity. We disagree. The requirement that where the Club is located that states that "St. Croix dancers wear pasties and G-strings has only a "de county has not experienced any major problems with minimis " effect on the expression conveyed by nude adult entertainment establishments." In addition, dancing. Pap's A.M., 529 U.S. at 294, 120 S.Ct. G.M. submitted an affidavit stating that the property 1382; Ben's Bar, 316 F.3d at 708. Further, the "First values near the Club have increased over time. G.M. Amendment does not entitle ... dancers, or ... patrons, contested the Town's inference that the Club's enter- to have alcohol available during a 'presentation' of tainment generates secondary effects by submitting nude or semi-nude dancing." Ben's Bar, 316 F.3d at an affidavit of the president of G.M. Enterprises 726. And, while the constitutionality of a restriction which stated that the majority of calls to the police prohibiting physical contact between nude dancers regarding incidents at the Club were generated during
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and their patrons is an issue of first impression in this building. The plurality assumed the ordinance to be circuit, the Fifth Circuit has twice had the occasion to content neutral, but did not consider the issue directly consider similar restrictions and has found them to be due to the fact that the Ninth Circuit had not ad- constitutional on the grounds that physical contact is dressed it below. Alameda Books, 535 U.S. at 434, beyond the scope of the protected expressive activity 441, 122 S.Ct. 1728. However, the plurality reaf- of nude dancing. Hang On, Inc. v. City of Arlington, firmed that the first step of the Renton analysis is to 65 F.3d 1248, 1253 (5th Cir.1995); Baby Dolls Top- verify that the "predominate concerns motivating the less Saloons, Inc. v. City of Dallas, 295 F.3d 471, 484 ordinance were with the secondary effects of adult (5th Cir.2002). Yet, as these regulations do have an speech, and not with the content of the adult speech." incidental effect on protected expression, they must Alameda Books, 535 U.S. at 440- 41, 122 S.Ct. 1728 meet constitutional standards to be upheld. (internal quotations omitted). In his concurring opin- ion, Justice Kennedy agreed that the Renton test The parties submit that, in order to determine the cor- provided the appropriate level of scrutiny for a regu- rect constitutional analysis *637 to apply to the or- lation that is "targeted not at the activity, but at its dinances at issue, this Court must first decide whether side effects." Alameda Books, 535 U.S. at 447, 122 the ordinances intend to regulate the expressive ele- S.Ct. 1728. And, employing an approach similar to ment of nude dancing, or whether they are neutral as the plurality's, Justice Kennedy insisted that a muni- to content. In the Town's view, the ordinances seek to cipality first "advance some basis to show that its reg- regulate only the adverse secondary effects associ- ulation has the purpose and effect of suppressing sec- ated with nude dancing, and are thus content neutral. ondary effects, while leaving the quantity and access- In support, the Town cites City of Renton v. Playtime ibility of speech substantially intact," before a court Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 applies intermediate scrutiny. Id. at 449, 122 S.Ct. (1986). In Renton, the Supreme Court held that an 1728. Although, unlike the plurality, Justice Kennedy adult entertainment zoning ordinance was a " 'content- wrote that zoning ordinances of adult businesses are neutral' regulation of speech because while 'the ordin- "content based," see id., he agreed with the plurality ance treats theaters that specialize in adult films dif- that "[n]evertheless, ... the central holding of Renton ferently from other kinds of theaters ....[it] is aimed is sound: A zoning ordinance that is designed to de- not at the content of the films shown ... but rather at crease secondary effects and not speech should be the secondary effects of such theaters on the sur- subject to intermediate rather than strict scrutiny." Id. rounding community.' " Ben's Bar, 316 F.3d at 716 at 448, 122 S.Ct. 1728. As Justice Kennedy's concur- (quoting Renton, 475 U.S. at 47, 106 S.Ct. 925) rence is the narrowest opinion joining the judgment (emphasis in original). In contrast, the plaintiff argues of the Court, it is the controlling authority under that the secondary effects rationale of Renton is no Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. longer good law, and further that the ordinances are 990, 51 L.Ed.2d 260 (1977). Ben's Bar, 316 F.3d at content based and therefore subject to strict scrutiny. 722.
[7] In light of the Supreme Court's divided ruling in [8][9] Under the first step of the analysis set forth by City of Los Angeles v. Alameda Books, Inc., 535 U.S. both Justice Kennedy and the plurality, we must first 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), we determine whether the ordinances at issue are motiv- need not decide whether the ordinances are content ated by an interest in reducing the secondary *638 ef- based or content neutral, so long as we first conclude fects associated with the speech, rather than an in- that they target not "the activity, but ... its side ef- terest in reducing the speech itself, before turning to fects," see Alameda Books, 535 U.S. at 447, 122 S.Ct. Renton. See Alameda Books, 535 U.S. at 440-41, 450, 1728 (Kennedy, J., concurring in the judgment), and 122 S.Ct. 1728. To survive this step of the analysis, then apply intermediate scrutiny. In Alameda Books, "the rationale of the ordinance must be that it will the plurality upheld at summary judgment a Los suppress secondary effects--and not by suppressing Angeles ordinance that prohibited multiple adult en- speech." Id. at 450, 122 S.Ct. 1728. The Town has tertainment businesses from operating in the same
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met this burden. Neither of the ordinances prohibit is no greater than is essential to the furtherance of nude dancing; rather, they merely seek to minimize that interest. O'Brien, 391 U.S. at 377, 88 S.Ct. 1673. the factors that the Board believed would heighten the probability that adverse secondary effects would Ordinances Nos. 2001-02 and 2001-03 are neither result from nude dancing: physical proximity public indecency nor zoning regulations. They regu- between the dancers and patrons, and the consump- late the manner in which patrons view nude dancing; tion of alcohol by patrons. Requiring that adult enter- specifically, the patron's physical proximity to the tainment establishments maintain a minimal physical nude dancer and the patron's access to alcoholic buffer between patrons and dancers does not reduce beverages in establishments where nude dancing is the availability of nude dance entertainment. And, "al- provided. Because this case concerns only the "sub- cohol prohibition is, as a practical matter, the least re- stantial government interest" prong that is found in strictive means of furthering the ... interest in combat- both the O'Brien and Renton tests, we need not de- ing the secondary effects resulting from the combina- cide which test of intermediate scrutiny provides the tion of adult entertainment and alcohol consump- correct analytical framework for these ordinances. In- tion." Ben's Bar, 316 F.3d at 725. Further, if all dan- deed, this Court has held that the constitutional stand- cers choose to wear the de minimus clothing neces- ard for "evaluating adult entertainment regulations, sary to cover all "specified anatomical parts," then be they zoning ordinances or public indecency stat- neither the physical proximity nor alcohol prohibition utes, are virtually indistinguishable." Ben's Bar, 316 requirements are implicated. Thus, as the ordinances F.3d at 714. will leave the availability of nude dance entertain- [12] The issue before this Court is what quality and ment substantially the same, under Justice Kennedy's quantum of evidence a *639 regulating body must test of "how speech will fare under the city's ordin- consider in order to demonstrate that it has a reason- ance[s]," Alameda Books, 535 U.S. at 450, 122 S.Ct. able basis for believing that the regulated activity 1728, the Town has demonstrated that its goal is to generates adverse secondary effects, the reduction of minimize secondary effects, rather than the speech it- which is a "substantial government interest" under self. the Renton or O'Brien tests. This issue was most re- [10][11] Therefore, we move to the second step of cently before the Supreme Court in Alameda Books; the Renton analysis. In Renton, the Court set forth the in the plurality's words, the case required the court to intermediate scrutiny test for zoning regulations of "clarify the standard for determining whether an or- adult businesses aimed at suppressing secondary ef- dinance serves a substantial government interest un- fects. Such regulations are constitutional "so long as der Renton." Alameda Books, 535 U.S. at 433, 122 they are designed to serve a substantial government S.Ct. 1728. In Alameda Books, the plurality reaf- interest and do not unreasonably limit alternative av- firmed that "a municipality may rely on any evidence enues of communication." Renton, 475 U.S. at 47, that is 'reasonably believed to be relevant' for demon- 106 S.Ct. 925, reaffirmed in Alameda Books, 535 strating a connection between speech and a substan- U.S. at 434, 122 S.Ct. 1728. Regulations of public tial, independent government interest." Alameda nudity, however, are analyzed under the intermediate Books at 438, 122 S.Ct. 1728, (quoting Renton, 475 scrutiny test of United States v. O'Brien, 391 U.S. U.S. at 51-52, 106 S.Ct. 925). The plurality upheld an 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Pap's ordinance that prohibited the operation of multiple A.M., 529 U.S. at 289, 120 S.Ct. 1382. The O'Brien adult entertainment business in the same building, test asks (1) whether the regulating body had the even though the regulating body did not rely upon a power to enact the regulation; (2) whether the regula- study that specifically addressed whether the concen- tion furthers an important or substantial government- tration of such establishments in a single building al interest; (3) whether that interest is unrelated to the would result in a higher incidence of adverse second- suppression of free expression; and (4) whether the ary effects. Id. at 437, 122 S.Ct. 1728. According to regulation's incidental impact on expressive conduct the plurality, it was reasonable for the regulating body to infer--from a somewhat dated study that con-
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cluded that the concentrated growth of adult enter- weigh the evidence considered by a legislative body, tainment establishments in a particular neighborhood nor does it empower *640 a court to substitute its led to increased crime there--that the concentration of judgment in regards to whether a regulation will best adult establishments in a single building would lead serve a community, so long as the regulatory body to a similar increase in crime. Id. at 435-38, 122 S.Ct. has satisfied the Renton requirement that it consider 1728. The plurality did not require that a regulating evidence "reasonably believed to be relevant to the body rely on research that targeted the exact activity problem" addressed. See Renton, 475 U.S. at 51-52, it wished to regulate, so long as the research it relied 106 S.Ct. 925, see also Alameda Books, 535 U.S. at upon reasonably linked the regulated activity to ad- 445, 122 S.Ct. 1728 (Kennedy, J., concurring in the verse secondary effects. judgment) ("in my view, the plurality's application of Renton might constitute a subtle expansion, with However, the plurality cautioned that: which I do not concur."). Wrote Justice Kennedy, "as a municipality's evidence must fairly support the a general matter, courts should not be in the business municipality's rationale .... If plaintiffs fail to cast of second-guessing fact-bound empirical assessments direct doubt on this rationale, either by demonstrat- of city planners ... the Los Angeles City Council ing that the municipality's evidence does not sup- knows the streets of Los Angeles better than we do." port its rationale or by furnishing evidence that dis- Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728. The putes the municipality's factual findings, the muni- plurality expressed similar support for judicial defer- cipality meets the standards set forth in Renton. If ence to local lawmakers: "we must acknowledge that plaintiffs succeed in casting doubt on a municipal- the Los Angeles City Council is in a better position ity's rationale in either manner, the burden shifts than the Judiciary to gather and evaluate data on local back to the municipality to supplement the record problems." Id. at 440, 122 S.Ct. 1728. with evidence renewing support for a theory that justifies its ordinance. [14][15] Plaintiff argues that its complaint must sur- Id. at 438-39, 122 S.Ct. 1728. Plaintiff argues that it vive summary judgment because the evidence relied has "substantially challenged the validity of the upon by the Board does not meet the standards of town's determination that its regulation was justified Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. by the need to combat adverse secondary effects of 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Under adult entertainment," and has therefore precluded the plaintiff's view, the Town cannot demonstrate a summary judgment by shifting the burden back to the reasonable belief in a causal relationship between the Town to supplement the record. We disagree. activity regulated and secondary effects, as required Plaintiff submitted some evidence that might argu- by Alameda Books and Renton, unless the studies it ably undermine the Town's inference of the correla- relied upon are of sufficient methodological rigor to tion of adult entertainment and adverse secondary ef- be admissible under Daubert. This argument is com- fects, including a study that questions the methodo- pletely unfounded. The plurality in Alameda Books logy employed in the numerous studies relied upon bluntly rejected Justice Souter's suggestion that the by the Board; evidence of an increase of property val- municipality be required to present empirical data in ues near the Club; and evidence that the majority of support of its contention: "such a requirement would police calls in regards to the Club originated during go too far in undermining our settled position that periods of time when no semi-nude dancing occurred. municipalities must be given a 'reasonable opportun- Although this evidence shows that the Board might ity to experiment with solutions' to address the sec- have reached a different and equally reasonable con- ondary effects of protected speech." Alameda Books, clusion regarding the relationship between adverse 535 U.S. at 439, 122 S.Ct. 1728. Further, the purpose secondary effects and sexually oriented businesses, it of the evidentiary requirement of Alameda Books is is not sufficient to vitiate the result reached in the to require municipalities to demonstrate reliance on Board's legislative process. some evidence in reaching a reasonable conclusion about the secondary effects. The municipality need [13] Alameda Books does not require a court to re-
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not "prove the efficacy of its rationale for reducing secondary effects prior to implementation." Ben's Bar, 316 F.3d at 720. A requirement of Daubert- quality evidence would impose an unreasonable bur- den on the legislative process, and further would be logical only if Alameda Books required a regulating body to prove that its regulation would- -undeniably--reduce adverse secondary effects. Alameda Books clearly did not impose such a re- quirement.
III. Conclusion For the reasons discussed, the judgment of the district court is AFFIRMED.
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Briefs and Other Related Documents (Back to top)
• 2003 WL 22734115 (Appellate Brief) Appellant's Reply Brief (May. 22, 2003)Original Image of this Document (PDF)
• 2003 WL 22734114 (Appellate Brief) Brief of De- fendant-Appellee Town of St. Joseph (May. 01, 2003)Original Image of this Document (PDF)
• 2003 WL 22734113 (Appellate Brief) Appellant's Brief (Mar. 31, 2003)Original Image of this Docu- ment (PDF)
END OF DOCUMENT
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the extent their activities are perceived as having ad- verse social and economic effects on society. Briefs and Other Related Documents U.S.C.A. Const.Amend. 1.
United States Court of Appeals, [2] Constitutional Law 90.4(1) Eighth Circuit. 92k90.4(1) Most Cited Cases SOB, INC., et al., Plaintiffs--Appellants/Cross Ap- Sexually oriented businesses may be subjected to pellees, reasonable time, place, and manner restrictions based v. upon the nature of the products or services they sell, COUNTY OF BENTON, Defendant--Appellee/Cross even though those products and services include an Appellant. expressive content protected by the First Amend- Nos. 01-3928, 01-4022. ment. U.S.C.A. Const.Amend. 1.
Submitted: Oct. 10, 2002. [3] Zoning and Planning 76 Filed: Jan. 24, 2003. 414k76 Most Cited Cases Rehearing and Rehearing En Banc Denied: Feb. 27, State and local governments may use diverse zoning 2003. strategies such as dispersal or concentration, to regu- late adverse secondary effects of sexually oriented Owner of nude dancing establishment brought action businesses, such as crime, prostitution, and economic against county, seeking permanent injunction both to blight. prohibit enforcement of county's public indecency or- dinance and to prohibit county from enforcing ordin- [4] Constitutional Law 90.4(1) ance by means of custodial arrest of nude dancers. 92k90.4(1) Most Cited Cases The United States District Court for the District of Regulation limiting zoning for sexually oriented busi- Minnesota, Alsop, Senior District Judge, 171 nesses must be content neutral to avoid strict scrutiny F.Supp.2d 978, granted injunction in part, and denied under First Amendment free speech clause; "content- it in part. Both parties appealed. The Court of Ap- neutral" in this context means simply that the regula- peals, Loken, Circuit Judge, held that: (1) county had tion is justified by the legitimate government purpose sufficient basis for concluding that ordinance was of reducing or eliminating adverse secondary effects. needed to further substantial government interest in U.S.C.A. Const.Amend. 1. combating harmful secondary effects; (2) ordinance was not overbroad in violation of First Amendment [5] Constitutional Law 90.4(1) free speech clause; and (3) owner failed to demon- 92k90.4(1) Most Cited Cases strate that exceptional circumstances required an in- If a zoning regulation restricting location of sexually junction against enforcing ordinance by means of oriented businesses is content-neutral in that it is jus- custodial arrest. tified by legitimate government purpose of reducing or eliminating adverse secondary effects, it will with- Affirmed in part; reversed and remanded in part. stand constitutional free speech scrutiny so long as whatever evidence the city relies upon is reasonably West Headnotes believed to be relevant to the problem that the city [1] Constitutional Law 90.4(1) addresses and the regulation allows for reasonable al- 92k90.4(1) Most Cited Cases ternative avenues for communication. U.S.C.A. Non-obscene erotic and sexually explicit speech are Const.Amend.1. entitled to some First Amendment free speech protec- [6] Constitutional Law 90.4(3) tion, but businesses that market sexually explicit 92k90.4(3) Most Cited Cases speech and expressive conduct may be regulated to
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A ban on live nude dancing is a content-neutral regu- ues; owner's local evidence addressed only two ad- lation of speech if its purpose is to combat harmful verse effects, both relating to zoning, and county had secondary effects, even though the ban has some evidence from studies of other counties of secondary minimal effect on the erotic message by muting that effects associated with adult entertainment busi- portion of the expression that occurs when the last nesses. U.S.C.A. Const.Amend. 1. stitch of clothing is dropped. U.S.C.A. Const.Amend. 1. [10] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases [7] Constitutional Law 90.4(2) Zoning restrictions typically impact a broad range of 92k90.4(2) Most Cited Cases adult entertainment businesses, whereas a ban on live County ordinance making it a misdemeanor to know- nude dancing imposes a de minimis restriction on ex- ingly or intentionally appear in a state of nudity, or pressive conduct, while otherwise leaving the quant- fondle genitals of oneself or of another, in a public ity and accessibility of speech substantially intact. place, was content-neutral regulation of speech, sub- U.S.C.A. Const.Amend. 1. ject to intermediate First Amendment scrutiny under four-part test for judging government action restrict- [11] Constitutional Law 42(1) ing conduct that includes both speech and non-speech 92k42(1) Most Cited Cases elements; stated purpose was to prohibit public inde- [11] Constitutional Law 42.2(1) cency in order to deter criminal activity, to promote 92k42.2(1) Most Cited Cases societal order and public health, and to protect chil- Ordinarily, a party may not facially challenge a law dren. U.S.C.A. Const.Amend. 1. on the ground that it would be unconstitutional if ap- [8] Courts 90(2) plied to someone else; an exception to that general 106k90(2) Most Cited Cases rule is the First Amendment overbreadth doctrine When a fragmented Supreme Court decides a case governing free speech. U.S.C.A. Const.Amend. 1. and no single rationale explaining the result enjoys [12] Constitutional Law 42.2(1) the assent of five Justices, the holding of the court 92k42.2(1) Most Cited Cases may be viewed as that position taken by those mem- To prevent the chilling of protected First Amendment bers who concurred in the judgment on the narrowest free speech interests, the "overbreadth doctrine" per- grounds. mits an individual whose own speech or conduct may [9] Constitutional Law 90.4(1) be prohibited to challenge a statute on its face be- 92k90.4(1) Most Cited Cases cause it also threatens others not before the court, or those who desire to engage in legally protected ex- [9] Constitutional Law 90.4(3) pression but who may refrain from doing so. 92k90.4(3) Most Cited Cases U.S.C.A. Const.Amend. 1.
[9] Obscenity 2.5 [13] Constitutional Law 90(3) 281k2.5 Most Cited Cases 92k90(3) Most Cited Cases Under intermediate First Amendment scrutiny, Where a statute regulates expressive conduct, the county had sufficient basis for concluding that ordin- scope of the statute does not render it unconstitution- ance prohibiting public indecency, and in effect ban- al under First Amendment free speech protections un- ning live nude dancing, was needed to further sub- less its overbreadth is not only real, but substantial as stantial government interest in combating harmful well, judged in relation to the statute's plainly legit- secondary effects, although owner of nude dancing imate sweep. U.S.C.A. Const.Amend. 1. establishment presented evidence that two adult en- tertainment businesses in the county had neither [14] Constitutional Law 90.4(3) caused higher crime rates nor depressed property val- 92k90.4(3) Most Cited Cases
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[14] Obscenity 2.5 demonstrate that exceptional circumstances required 281k2.5 Most Cited Cases a pre-enforcement injunction against enforcing County ordinance prohibiting public fondling of gen- county ordinance prohibiting live nude dancing by itals was not overbroad in violation of free speech means of custodial arrest; risk that dancers at nude clause, although ordinance did not appear to except dancing establishment would be subject to custodial legitimate theatrical performances from fondling pro- arrest was minimal, enforcing officers were required hibition; county had no theatres, and county attorney by state law to proceed by citation rather than cus- represented that county had no intention of enforcing todial arrest unless necessary to prevent bodily harm ordinance's provisions on any theatrical production or further criminal conduct, and there was little risk which had serious artistic merit. U.S.C.A. that a custodial arrest would restrain a dancer's pro- Const.Amend. 1. tected expressive conduct in later performances that same night, in violation of prior restraint doctrine. [15] Federal Courts 386 U.S.C.A. Const.Amends. 1, 14; M.S.A. § 609.02, 170Bk386 Most Cited Cases subd. 3; 49 M.S.A., Rules Crim.Proc., Rule 6.01, In evaluating a facial challenge to a state law, a feder- subd. 1(1)(a). al court must consider any limiting construction that a state court or enforcement agency has proffered. [19] Injunction 85(2) 212k85(2) Most Cited Cases [16] Constitutional Law 82(10) Ordinarily, a federal court will not enjoin enforce- 92k82(10) Most Cited Cases ment of a state criminal law, even though unconstitu- tional; to justify such interference there must be ex- [16] Constitutional Law 225.1 ceptional circumstances and a clear showing that an 92k225.1 Most Cited Cases injunction is necessary in order to afford adequate [16] Obscenity 2.5 protection of constitutional rights. 281k2.5 Most Cited Cases [20] Constitutional Law 90(3) County ordinance that prohibited nudity and the 92k90(3) Most Cited Cases fondling of genitals in a public setting or place, in- The doctrine of prior restraint recognizes the time- cluding hotels and motels but excluding enclosed honored distinction between barring speech in the fu- "single sex motel rooms" or "hotel rooms designed ture and penalizing past speech. U.S.C.A. for sleeping accommodations," did not violate rights Const.Amend. 1. to marital and sexual privacy or equal protection *858 Randall D.B. Tigue, argued, Minneapolis, MN, rights of married couple who allegedly feared prosec- for appellant/cross-appellee. ution under the ordinance, absent evidence of likeli- hood that ordinance would be enforced against them Scott T. Anderson, argued, Minneapolis, MN (Amy if they engaged in normal marital activities within E. Mace, on the brief), for appellee/cross-appellant. such a motel or hotel room. U.S.C.A. Const.Amend. 5; M.S.A. § 645.17(1, 3). Before LOKEN, BEAM, and MELLOY, Circuit Judges. [17] Constitutional Law 46(1) 92k46(1) Most Cited Cases LOKEN, Circuit Judge. As a general rule, a federal court should refrain from entertaining a pre-enforcement constitutional chal- The primary issue in this case is whether Benton lenge to a state criminal statute in the absence of a County, Minnesota, violated *859 the First Amend- realistic fear of prosecution. ment by enacting an ordinance prohibiting live nude dancing entertainment when there was evidence [18] Injunction 85(1) presented to the County Commissioners suggesting 212k85(1) Most Cited Cases that existing adult entertainment establishments had Owner of nude dancing establishment failed to not adversely affected nearby property values or
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crime rates. The issue is surprisingly complex be- prohibiting the sale of sexually oriented materials to cause it lies at the intersection of two related but dis- minors was upheld against a First Amendment chal- tinct lines of Supreme Court First Amendment de- lenge in Ginsberg v. New York, 390 U.S. 629, 634, cisions. 640-42, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). More recently, the Supreme Court has considered First After SOB, Inc. opened Sugar Daddy's, an alcohol- Amendment challenges to two different kinds of reg- free cabaret featuring live nude dancing, the Benton ulatory action taken by local governments to attack County Board of Commissioners enacted Ordinance the perceived negative effects of non-obscene adult 332 ("the Ordinance") generally prohibiting "public entertainment: the use of traditional urban zoning indecency": strategies to restrict the time, place, and manner in Public Indecency Prohibited. A person, who know- which adult entertainment may be marketed, and the ingly or intentionally in a public setting or place: use of traditional public indecency statutes to prohibit A. appears in a state of nudity; certain types of sexually expressive conduct. These B. fondles the genitals of himself or herself, or recent decisions govern our resolution of this appeal. C. fondles the genitals of another person; commits public indecency and is guilty of a misde- [2][3][4][5] Zoning issues reached the Supreme meanor under Minnesota law and upon conviction Court first. It is now well-established that sexually thereof, shall be punished by a fine of up to $1,000 oriented businesses may be subjected to reasonable or by imprisonment for up to 90 days, or both. time, place, and manner restrictions based upon the The Ordinance compelled Sugar Daddy's female dan- nature of the products or services they sell, even cers to cover their breasts and genitals with pasties though those products and services include an ex- and G-strings while performing. SOB, Inc. and three pressive content protected by the First Amendment. dancers (collectively, "Sugar Daddy's") commenced See *860City of Renton v. Playtime Theatres, Inc., this action to declare the Ordinance overbroad and 475 U.S. 41, 48-50, 106 S.Ct. 925, 89 L.Ed.2d 29 contrary to their protected First Amendment interests (1986); Young v. American Mini Theatres, Inc., 427 in live nude dancing and to enjoin its enforcement. U.S. 50, 62- 63, 96 S.Ct. 2440, 49 L.Ed.2d 310 Sugar Daddy's manager, Mark Van Gelder, and his (1976). Under Renton, state and local governments wife joined as plaintiffs and asserted a claim that an- may use diverse zoning strategies (for example, other aspect of the Ordinance violates their due pro- either dispersal or concentration) to regulate adverse cess, equal protection, and privacy rights. secondary effects of such businesses such as crime, prostitution, and economic blight. The regulation After consolidating plaintiffs' motion for a prelimin- must be "content neutral" to avoid strict First Amend- ary injunction with the trial on the merits, the district ment scrutiny. But content-neutral in this context court held that the Ordinance is constitutional, but the means simply that the regulation is justified by the le- court enjoined the County from enforcing it "by gitimate government purpose of reducing or eliminat- means of custodial arrest." S.O.B., Inc. v. County of ing adverse secondary effects. 475 U.S. at 47-50, 106 Benton, 171 F.Supp.2d 978 (D.Minn.2001). Both S.Ct. 925. If a zoning regulation is content-neutral in sides appeal this final order. We affirm the district this sense, it will withstand First Amendment scru- court's decision except we vacate the injunction tiny "so long as whatever evidence the city relies against custodial arrest. upon is reasonably believed to be relevant to the problem that the city addresses" and the regulation al- I. The Public Nudity Prohibition. lows for reasonable alternative avenues for commu- [1] Non-obscene erotic and sexually explicit speech nication. Id. at 51-52, 106 S.Ct. 925. are entitled to some First Amendment protection. But businesses that market sexually explicit speech and This case involves the second type of regulation, use expressive conduct may be regulated to the extent of a public indecency ordinance to totally prohibit their activities are perceived as having adverse social live nude dancing. Public indecency, including nud- and economic effects on society. For example, a law ity, was a crime at common law, and public inde-
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cency statutes are clearly within the police power of Justice, Justice Kennedy, and Justice Breyer), now state and local governments. A First Amendment agreeing with Justice Souter that the adverse second- challenge to this type of regulation first reached the ary effects analysis of Renton was the proper analyt- Supreme Court in Barnes v. Glen Theatre, Inc., 501 ical framework, concluded that the government *861 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). had a sufficient interest in regulating this sexually ex- The Court upheld the application of Indiana's long- plicit conduct because: standing public indecency statute to prohibit live there is nothing objectionable about a city passing nude dancing as entertainment, but no five Justices a general ordinance to ban public nudity (even agreed on a single rationale for that conclusion. Not- though such a ban may place incidental burdens on ing that nude dancing is expressive conduct, not pure some protected speech) and at the same time recog- speech, four Justices applied the four-part test in nizing that one specific occurrence of public nud- United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. ity--nude erotic dancing--is particularly problemat- 1673, 20 L.Ed.2d 672 (1968), for judging govern- ic because it produces harmful secondary effects. ment action restricting conduct that includes both 529 U.S. at 295, 120 S.Ct. 1382. The plurality then speech and non-speech elements: concluded that the City of Erie ordinance passed [A] government regulation is sufficiently justified muster under the four-part O'Brien test because: if it is within the constitutional power of the Gov- [t]he ordinance regulates conduct, and any incid- ernment; if it furthers an important or substantial ental impact on the expressive element of nude governmental interest; if the governmental interest dancing is de minimis. The requirement that dan- is unrelated to the suppression of free expression; cers wear pasties and G-strings is a minimal re- and if the incidental restriction on alleged First striction in furtherance of the asserted government Amendment freedoms is no greater than is essential interests, and the restriction leaves ample capacity to the furtherance of that interest. to convey the dancer's erotic message. Applying this test, the Chief Justice, Justice Id. at 301, 120 S.Ct. 1382. Justice Souter dissented in O'Connor, and Justice Kennedy considered Indiana's part, agreeing with the plurality's analytical approach prohibition of live nude dancing sufficiently justified but voting to remand because the City of Erie had not by the traditional police power to protect morals and made an evidentiary record supporting its claim of public order. Barnes, 501 U.S. at 569, 111 S.Ct. adverse secondary effects. (Justice Scalia, joined by 2456. Justice Souter, on the other hand, applied the Justice Thomas, concurred, adhering to his approach O'Brien test but looked to Renton for relevant preced- in Barnes: "The traditional power of government to ent and concluded that the prohibition was justified foster good morals[,] ... and the acceptability of the by "the State's substantial interest in combating the traditional judgment (if Erie wishes to endorse it) that secondary effects of adult entertainment establish- nude public dancing itself is immoral, have not been ments." Id. at 582, 111 S.Ct. 2456. (Justice Scalia, the repealed by the First Amendment." 529 U.S. at 310, fifth member of the Barnes majority, concluded that 120 S.Ct. 1382. Justice Stevens and Justice Ginsburg live nude dancing is conduct unprotected by the First dissented, adhering to the position of the dissenters in Amendment. The four dissenters concluded that the Barnes and criticizing the majority for extending prohibition was the suppression of protected erotic Renton 's adverse secondary effects analysis to the dancing and could not survive First Amendment strict absolute prohibition of live nude dancing.) scrutiny.) The final relevant Supreme Court precedent is anoth- The Court again took up this issue in City of Erie v. er zoning case, the Court's very recent decision in Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 City of Los Angeles v. Alameda Books, Inc., 535 U.S. L.Ed.2d 265 (2000). A larger majority again upheld 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). application of an ordinance generally prohibiting Alameda Books probed the evidentiary parameters of public nudity to ban live nude dancing. A four-Justice the Renton test, considering whether Los Angeles had plurality (Justice O'Connor, joined by the Chief presented sufficient evidence of adverse secondary
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effects to avoid summary judgment invalidating an its purpose is to "prohibit public indecency in order amendment to its zoning ordinance that prohibited to deter criminal activity, to promote societal order more than one adult entertainment business from op- and public health and to protect children," and it in- erating in the same building. Once again, Alameda cludes express findings that public indecency can in- Books produced no majority opinion. A four-Justice crease criminal activity, including prostitution, dis- plurality (Justice O'Connor, joined by the Chief orderly conduct and sexual assault; expose children Justice, Justice Scalia, and Justice Thomas), in con- to an unhealthy and nurtureless environment; foster cluding that the City had made a sufficient showing social disorder by disrupting the orderly operation of to survive summary judgment, granted substantial but public events and public accommodations; and not total deference to the City's legislative judgment present health concerns in places of public accom- about how to combat adverse secondary effects: modation and other public settings. Sugar Daddy's ar- This is not to say that a municipality can get away gues these findings are unsupported and suggests the with shoddy data or reasoning. The municipality's Ordinance's stated purpose is pretextual. But Sugar evidence must fairly support the municipality's ra- Daddy's virtually concedes, and we conclude, that the tionale for its ordinance. If plaintiffs fail to cast dir- Ordinance is content-neutral within the meaning of ect doubt on this rationale, either by demonstrating Pap's and therefore subject to intermediate First that the municipality's evidence does not support Amendment scrutiny under the four-part O'Brien test. its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality [8] Likewise, Sugar Daddy's does not argue that the meets the standard set forth in Renton. If plaintiffs Ordinance fails the fourth part of the O'Brien test, succeed in casting doubt on a municipality's ra- that "the incidental restriction on alleged First tionale in either manner, the burden shifts back to Amendment freedoms is no greater than is essential the municipality to supplement the record with to the furtherance of [the substantial governmental] evidence renewing support for a theory that justi- interest." In Pap's, 529 U.S. at 289, 120 S.Ct. 1382, fies its ordinance. the plurality declared that live nude dancing is a form 122 S.Ct. at 1736. Justice Kennedy concurred but of expressive conduct that "falls only within the outer cautioned that, to justify a zoning ordinance under ambit of the First Amendment's protection." The Renton, "a city must advance some basis to show that plurality then concluded that an absolute prohibition its regulation has the purpose and effect of suppress- on such conduct meets the O'Brien test because "[t]he ing secondary effects, while leaving the quantity and requirement that dancers wear pasties and G-strings accessibility of speech substantially intact." Id. at is a minimal restriction in furtherance of the asserted 1742 (emphasis *862 added). Justice Souter for the government interests, and the restriction leaves ample four dissenters concluded that the City's earlier stud- capacity to convey the dancer's erotic message." Id. at ies regarding adverse secondary effects totally failed 301, 120 S.Ct. 1382 (plurality opinion). [FN1] to support this amendment and therefore the amend- FN1. "When a fragmented Court decides a ment was impermissible content-based regulation. case and no single rationale explaining the [6][7] Applying these Supreme Court precedents to result enjoys the assent of five Justices, 'the this case, we can quickly isolate the critical inquiry. holding of the court may be viewed as that A ban on live nude dancing is content-neutral if its position taken by those Members who con- purpose is to combat harmful secondary effects, even curred in the judgment on the narrowest though the ban "has some minimal effect on the erot- grounds.' " Marks v. United States, 430 U.S. ic message by muting that portion of the expression 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 that occurs when the last stitch [of clothing] is (1977). Applying this test, Justice dropped." Pap's, 529 U.S. at 294, 120 S.Ct. 1382; see O'Connor's opinion for the four-Justice plur- ILQ Invs., Inc. v. City of Rochester, 25 F.3d 1413, ality in Pap's stated the holding of the Court. 1416 (8th Cir.1994). Here, the Ordinance states that See Nightclub Mgmt., Ltd. v. City of Cannon Falls, 95 F.Supp.2d 1027, 1040-41
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(D.Minn.2000). On the other hand, Justice values and crime in the vicinity of an adult entertain- Kennedy's more narrow concurrence in ment establishment. These are issues particularly rel- Alameda Books stated the holding of the evant to zoning. A ban on live nude dancing, on the Court in that case. other hand, may address other adverse secondary ef- fects, such as the likelihood that an establishment [9] Thus, the fighting issue in this case, as it was in whose dancers and customers routinely violate long- Alameda Books, is whether the County had sufficient established standards of public decency will foster il- evidence of adverse secondary effects to justify en- legal activity such as drug use, prostitution, tax eva- acting the Ordinance. Before enactment, the County sion, and fraud. [FN3] Moreover, zoning restrictions Commissioners gathered studies by other municipal- typically impact a broad range of adult entertainment ities and other evidence of the adverse secondary ef- businesses, whereas a ban on live nude dancing im- fects associated with adult entertainment businesses. poses a de minimis restriction on expressive conduct, At the public hearing, concerned citizens spoke in fa- while otherwise "leaving the quantity and accessibil- vor of the Ordinance. Mark Van Gelder presented ity of speech substantially intact." Alameda Books, evidence suggesting that Sugar Daddy's and the 122 S.Ct. at 1742 (Kennedy, J., concurring). King's Inn, a Benton County adult entertainment es- tablishment that had been in business *863 for nearly FN3. The record before the County Com- eight years, had neither caused higher crime rates nor missioners included testimony presented by depressed the value of nearby properties in the time a former strip-club manager to the Michigan they had been operating. [FN2] Sugar Daddy's also Legislature in the year 2000 describing how submitted an article criticizing the methodologies of such establishments promote these kinds of the secondary effects studies relied upon by other illegal activities. municipalities, Bryant Paul, et al., Government Regu- lation of "Adult" Businesses Through Zoning and Justice O'Connor, writing for the four-justice plural- Anti-Nudity Ordinances: Debunking the Legal Myth ity in Pap's, afforded substantial deference to legislat- of Negative Secondary Effects, 6 COMM. L. & POL. ive judgments regarding secondary-effects: 355 (2001). Sugar Daddy's argues that, on this record, [I]n terms of demonstrating that such secondary ef- the County had an insufficient basis for concluding fects pose a threat, the city need not conduct new that the Ordinance is needed to further the substantial studies or produce evidence independent of that government interest in combating harmful secondary already generated by other cities to demonstrate the effects. problem of secondary effects, so long as whatever evidence the city relies upon is reasonably believed FN2. Van Gelder presented statistics show- to be relevant to the problem that the city ad- ing fewer police calls to Sugar Daddy's in dresses. the prior year than to a local gas station, and 529 U.S. at 296, 120 S.Ct. 1382 (emphasis added, a report suggesting that the value of proper- quotations omitted); see Jake's, Ltd., Inc. v. City of ties near Sugar Daddy's and the King's Inn Coates, 284 F.3d 884, 886 (8th Cir.), cert. denied, increased more from 1994 to 2001 than the 537 U.S. 948, 123 S.Ct. 413, 154 L.Ed.2d 292 value of properties near two businesses that (2002). The plurality squarely rejected the dissent's do not feature nude dancing. The record be- view that the City must come forward with evidence fore the Commissioners included contrary showing that pasties and G-strings reduce crime: evidence and argument submitted by pro- To be sure, requiring dancers to wear pasties and ponents of the Ordinance. G-strings may not greatly reduce these secondary effects, but [the four-part O'Brien test] requires [10] Though neither Pap's nor Alameda Books only that the regulation further the interest in com- squarely resolves the issue, we conclude that Sugar bating such effects.... [T]he city must be allowed a Daddy's theory is unsound. Its local evidence ad- reasonable opportunity to experiment with solu- dressed only two adverse secondary effects, property tions to admittedly serious problems.
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529 U.S. at 301, 120 S.Ct. 1382 (plurality opinion) rick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, (quotation omitted). The four-Justice plurality in 37 L.Ed.2d 830 (1973). Therefore, "where a statute Alameda Books was equally deferential in reviewing regulates expressive conduct, the scope of the statute a zoning *864 ordinance which had a broader impact does not render it unconstitutional unless its over- on protected First Amendment interests. Justice breadth is not only real, but substantial as well, Kennedy's concurring opinion in Alameda Books was judged in relation to the statute's plainly legitimate somewhat less deferential than the plurality to local sweep." Osborne v. Ohio, 495 U.S. 103, 112, 110 legislative judgments as to the adverse secondary ef- S.Ct. 1691, 109 L.Ed.2d 98 (1990) (quotation omit- fects purportedly addressed by zoning regulations. ted). But Justice Kennedy joined the plurality opinions in Barnes as well as Pap's, and he did not even cite [14] A. Does the Ordinance Chill Legitimate those cases in his Alameda Books concurrence, which Theater? Sugar Daddy's argues that, even if the Or- means there is nothing to suggest that he has retreated dinance is constitutional as applied to live nude dan- from his votes in Barnes and Pap's. In these circum- cing, it is unconstitutionally overbroad because its stances, we conclude that the Court's holding in Pap's prohibition against the public fondling of genitals is still controlling regarding the deference to be af- chills constitutionally protected conduct. For ex- forded local governments that decide to ban live nude ample, Sugar Daddy's warns that an actor playing the dancing. Therefore, Sugar Daddy's failed to cast suf- role of the manager in a local production of Damn ficient doubt on the County's rationale for the Ordin- Yankees could be subject to criminal penalties for ad- ance, and the district court's decision that the ban on justing his athletic protector. live nude dancing is constitutional must be affirmed. In Farkas v. Miller, 151 F.3d 900, 905 (8th [FN4] Cir.1998), we upheld application of a public nudity FN4. In its cross-appeal, Benton County ar- statute to prohibit live nude dancing, rejecting an gues that two of the district court's findings overbreadth argument because the statute included an of fact are clearly erroneous. Neither finding exception for "a theater, concert hall, art center, mu- affects our conclusion that the County's ban seum, or similar establishment ... primarily devoted on live nude dancing survives First Amend- to the arts or theatrical performances." On the other ment intermediate scrutiny. Accordingly, we hand, in Ways, 274 F.3d at 519, in striking down an need not address these fact-finding issues. ordinance more broadly prohibiting sexual contact in entertainment businesses, we noted that among other II. Claims That the Ordinance Is Overbroad. flaws the ordinance lacked an exception for artistic [11][12][13] Ordinarily, a party may not facially venues. In this case, the Ordinance has an exemption challenge a law on the ground that it would be uncon- for "any theatrical production performed in a theater stitutional if applied to someone else. See New York by a professional or amateur theatrical or musical v. Ferber, 458 U.S. 747, 767, 102 S.Ct. 3348, 73 company *865 which has serious artistic merit." But L.Ed.2d 1113 (1982). An exception to that general unlike the exemption in Farkas, this exemption is in- rule is the First Amendment overbreadth doctrine. To explicably limited to the Ordinance's public-nudity prevent the chilling of protected First Amendment in- prohibition, so it does not appear to limit the public- terests, this doctrine permits "an individual whose genital-fondling prohibition. own speech or conduct may be prohibited ... to chal- lenge a statute on its face because it also threatens [15] An uncontradicted affidavit by the County Attor- others not before the court--those who desire to en- ney avers that there are no theaters in Benton County. gage in legally protected expression but who may re- Moreover, the County Attorney represents that "it is frain from doing so." Ways v. City of Lincoln, 274 not the intent of the prosecutorial authority for F.3d 514, 518 (8th Cir.2001) (quotation omitted). A Benton County to now or in the future enforce the judicial declaration that a law is unconstitutionally provisions of Ordinance 332 on any theatrical pro- overbroad "is, manifestly, strong medicine." Broad- duction ... which has serious artistic merit." "In evalu-
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ating a facial challenge to a state law, a federal court County Attorney has publicly declared "that Ordin- must, of course, consider any limiting construction ance 332 does not prohibit nudity, genital touching, that a state court or enforcement agency has or any other sexual activity in private hotel and motel proffered." Village of Hoffman Estates v. Flipside, rooms." That declaration finds support in the Min- Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 nesota canons of statutory construction, which codify S.Ct. 1186, 71 L.Ed.2d 362 (1982). Thus, the record presumptions that "[t]he legislature does not intend a does not support an inference that protected theatrical result that is absurd, impossible of execution, or un- activity is presently being chilled, or that the County reasonable [and] ... does not intend to violate the con- will ever enforce the genital-fondling prohibition stitution of the United States or of this state." minn. against the cast of a theatrical production. On this re- Stat. § 645.17, subd. (1), (3). Thus, the alleged fear is cord, we agree with the district court that the Ordin- both without support and patently unreasonable. ance is not substantially overbroad, judged in relation to its plainly legitimate sweep. Accord J & B Entm't, [17] As a general rule, a federal court should refrain Inc. v. City of Jackson, 152 F.3d 362, 366-67 (5th from entertaining a pre-enforcement constitutional Cir.1998). challenge to a state criminal statute in the absence of "a realistic fear of prosecution." Poe v. Ullman, 367 [16] B. The Van Gelders' Right to Privacy Claim. U.S. 497, 508, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); The Ordinance prohibits nudity and the fondling of see *866Steffel v. Thompson, 415 U.S. 452, 459, 94 genitals "in a public setting or place." The definition S.Ct. 1209, 39 L.Ed.2d 505 (1974). The Van Gelders' of public place includes hotels and motels but spe- claim does not raise First Amendment issues, and cifically excludes "enclosed single sex motel rooms "the existence of a 'chilling effect,' even in the area of and hotel rooms designed and intended for sleeping First Amendment rights, has never been considered a accommodations." Limiting the exclusion to "single sufficient basis, in and of itself, for prohibiting state sex" hotel rooms seems like a dreadful example of action." Younger v. Harris, 401 U.S. 37, 51, 91 S.Ct. bad drafting. [FN5] Reading the limitation literally, 746, 27 L.Ed.2d 669 (1971); see Laird v. Tatum, 408 Mark Van Gelder and his wife seek to enjoin enforce- U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). ment of the Ordinance, to the extent it "criminalizes On this record, the district court properly dismissed marital sexual relations within hotel rooms within this claim without reaching the merits of the issues. Benton County," because it infringes their alleged constitutional right to marital and sexual privacy. III. The Custodial Arrest Issue. Pressing literalism to an unreasonable extreme, the [18] In addition to asserting that the Ordinance is un- Van Gelders further assert that the Ordinance violates constitutional on its face, Sugar Daddy's complaint their right to equal protection because the single sex sought an order "declar[ing] the practice of enforcing limitation permits homosexuals but not heterosexuals the ordinance by custodial arrest to be an unlawful to engage in sexual relations in hotel rooms. prior restraint on First and Fourteenth Amendment rights." Noting that the Ordinance's theatrical exemp- FN5. The same linguistic nonsense infected tion requires arresting officers to determine that a live the City of Cannon Falls ordinance upheld nude dancing performance lacks "serious artistic mer- against other challenges in Nightclub Mgmt., it," the district court permanently enjoined enforce- 95 F.Supp.2d 1027. ment of the Ordinance by means of custodial arrest because "arresting the performer necessarily places a The complaint alleges that Mr. Van Gelder "fears that prior restraint on later performances." Benton County ... he and his wife could be subject to criminal pro- appeals that ruling. secution if they engaged in normal marital activities within such a motel or hotel room." But the Van [19] Ordinarily, a federal court will not enjoin en- Gelders have presented no evidence of any likelihood forcement of a state criminal law, even though un- that the Ordinance will be enforced against them if constitutional. "To justify such interference there they engage in such activity. Indeed, the Benton must be exceptional circumstances and a clear show-
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ing that an injunction is necessary in order to afford conduct in later performances that same night. In ob- adequate protection of constitutional rights." Wooley scenity cases, the Supreme Court has cautioned that v. Maynard, 430 U.S. 705, 712, 97 S.Ct. 1428, 51 police officers may not seize allegedly obscene ma- L.Ed.2d 752 (1977) (quotation omitted). We con- terials without some prior judicial evaluation of the clude that Sugar Daddy's has failed to demonstrate obscenity issue. See Roaden v. Kentucky, 413 U.S. that exceptional circumstances require an injunction 496, 505-06, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). against enforcing the constitutional prohibition of This is a prior restraint concern that led the court to live nude dancing by means of custodial arrest. deny a motion to dismiss a suit to enjoin the arrest of exotic dancers under an obscenity ordinance in Ad- In the first place, the risk that Sugar Daddy's dancers miral Theatre v. City of Chicago, 832 F.Supp. 1195 will be subject to custodial arrest seems minimal. A (N.D.Ill.1993). The district court relied on Admiral violation of the Ordinance is a misdemeanor. See Theatre, noting that arresting officers must assess minn. Stat. § 609.02, Subd. 3. The Minnesota Rules whether a performance has "serious artistic merit" to of Criminal Procedure require police officers to pro- determine whether the Ordinance's theatrical excep- ceed against misdemeanor offenders by citation tion applies. We disagree. While "serious artistic rather than custodial arrest, "unless it reasonably ap- merit" is a component of obscenity jurisprudence, see pears to the officer that arrest or detention is neces- Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, sary to prevent bodily harm to the accused or another 37 L.Ed.2d 419 (1973), the Ordinance is not obscen- or further criminal conduct, or that there is a substan- ity-based. The Ordinance's exception applies only to tial likelihood that the accused will fail to respond to a "theatrical production performed in a theater by a a citation." minn. R. Crim. P. 6.01, Subd. 1(1)(a). professional or amateur theatrical or musical com- Sugar Daddy's has presented no evidence that the pany." Thus, an arresting officer will know to a virtu- County has threatened custodial arrests or will not al certainty whether a particular live nude perform- comply with this rule of criminal procedure. ance at Sugar Daddy's falls within the exception. If not, the Ordinance has been violated, and any similar [20] In the second place, the doctrine of prior re- performances later that evening would also violate straint is only marginally involved here. The doctrine the Ordinance. recognizes "the time-honored distinction between barring speech in the future and penalizing past In these circumstances, we see no exceptional cir- speech." Alexander v. United States, 509 U.S. 544, cumstances warranting pre-enforcement intrusion by 554, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). Any a federal court of equity. Any prior restraint issues custodial arrest will come after a dancer has engaged that may arise should the County elect to enforce the in live nude dancing (nothing in the record suggests Ordinance through custodial arrest are better left for that the county will conduct pre-dance arrests, which the state courts to resolve on a specific factual record. would raise more serious First Amendment issues). The district court concluded that a post-dance arrest The judgment of the district court is reversed, and the "places a prior restraint on later performances." But case is remanded with directions to vacate the per- in the absence of proof that a dancer's arrest would be manent injunction against "using custodial arrest as a followed by extended custody, the only later per- means of enforcing Benton County Ordinance 332 formances likely to be restrained are additional live against Plaintiffs or any other person." 171 F.Supp.2d nude dances that night. See Kew v. Senter, 416 at 985. In all other respects, the judgment of the dis- F.Supp. 1101, 1106 (N.D.Tex.1976) ("Nor are future trict court is affirmed. performances prevented, for the performer may post bail and resume her 'expression' as quickly as logist- 317 F.3d 856 ics permit."). Briefs and Other Related Documents (Back to top) *867 We conclude there is little risk that a custodial • 2002 WL 32181447 (Appellate Brief) Cross- arrest will restrain a dancer's protected expressive
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Appellant's Reply Brief (May. 07, 2002)Original Im- age of this Document (PDF)
• 01-4022 (Docket) (Dec. 31, 2001)
• 01-3928 (Docket) (Dec. 17, 2001)
END OF DOCUMENT
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Regulation of time, place, and manner in which a sexually oriented business may present live nude dan- Briefs and Other Related Documents cing to its customers is permissible under First Amendment provided ordinance is justified without United States Court of Appeals, reference to content of the regulated speech, is de- Eighth Circuit. signed to promote a substantial government interest, JAKE'S, LTD., INC.; Richard J. Jacobson, Plaintiffs- and allows reasonable alternate avenues for commu- -Appellants, nication. U.S.C.A. Const.Amend. 1. v. [3] Zoning and Planning 76 CITY OF COATES, Defendant--Appellee. 414k76 Most Cited Cases No. 01-1869. A city's interest in preserving the quality of urban life Submitted: Nov. 12, 2001. and the character of its neighborhoods justifies zon- Filed: March 26, 2002. ing restrictions intended to minimize adverse second- ary effects of adult entertainment enterprises. Following city's amendment of zoning ordinance which had been declared unconstitutional, adult en- [4] Zoning and Planning 76 tertainment facility brought action in state court chal- 414k76 Most Cited Cases lenging amended ordinance and licensing ordinance. Zoning ordinance, intended to reduce adverse sec- City removed, and parties cross-moved for summary ondary effects of proximity to adult entertainment fa- judgment. The United States District Court for the cility, was constitutional as applied to particular facil- District of Minnesota, Donovan W. Frank, J., 176 ity; city reasonably relied on studies from other com- F.Supp.2d 899 and 169 F.Supp.2d 1014, upheld the munities showing that proximity to sexually oriented ordinance, and entertainment facility appealed. The businesses results in adverse secondary effects. Court of Appeals, Loken, Circuit Judge, held that: (1) [5] Zoning and Planning 131 zoning ordinance was constitutional as applied to 414k131 Most Cited Cases adult entertainment facility; (2) Minnesota amortiza- A city need not conduct its own studies to demon- tion statute was not unconstitutional; (3) ordinance strate that a proposed ordinance will serve to reduce authorizing suspension of business license did not adverse secondary effects, so long as whatever evid- confer unbridled discretion on any government offi- ence city relies upon is reasonably believed to be rel- cial or agency; (4) adult entertainment facility lacked evant to problem that city addresses. standing to challenge provision denying license to persons convicted of sex offenses; and (5) licensing [6] Constitutional Law 90.4(1) restrictions were reasonable. 92k90.4(1) Most Cited Cases
Affirmed as modified. [6] Zoning and Planning 8 414k8 Most Cited Cases West Headnotes Minnesota statute permitting municipalities to use [1] Constitutional Law 90.4(3) amortization as a means of eliminating nonconform- 92k90.4(3) Most Cited Cases ing adult businesses did not violate First Amendment; Nude dancing is expressive conduct protected by the statute merely authorized municipalities to amortize First Amendment, though only marginally so. nonconforming sexually oriented businesses, and U.S.C.A. Const.Amend. 1. statute was valid under deferential rational-basis re- view. U.S.C.A. Const.Amend. 1; M.S.A. § 462.357, [2] Constitutional Law 90.4(3) subd. 1c. 92k90.4(3) Most Cited Cases
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[7] Constitutional Law 90.1(4) Adult entertainment facility failed to establish that 92k90.1(4) Most Cited Cases city ordinance which imposed a license fee of $2,500 In the area of free expression a licensing statute pla- was constitutionally unreasonable, in violation of cing unbridled discretion in the hands of a govern- First Amendment; no evidence showed that fee was ment official or agency constitutes a prior restraint so large or so discriminatory as to demonstrate that and may result in censorship, in violation of the First ordinance was not content neutral. U.S.C.A. Amendment. U.S.C.A. Const.Amend. 1. Const.Amend. 1.
[8] Constitutional Law 90.1(4) [12] Constitutional Law 90.4(3) 92k90.1(4) Most Cited Cases 92k90.4(3) Most Cited Cases
[8] Licenses 7(1) [12] Public Amusement and Entertainment 238k7(1) Most Cited Cases 9(2) City ordinance authorizing suspension or revocation 315Tk9(2) Most Cited Cases of a business license, if licensee was a menace to the (Formerly 376k3.50 Theaters and Shows) health, safety, or general welfare of the community, Restrictions in ordinance licensing adult entertain- did not confer unbridled discretion on a government ment facility, requiring that live exotic dancing be official or agency, as would constitute prior restraint conducted on a platform raised at least two feet above on free expression in violation of First Amendment; floor and located at least six feet from any patron, language referring to "menace to the health, safety, or and prohibiting gratuities for dancers, were reason- general welfare of the community" constituted a spe- able, content-neutral time, place, and manner restric- cific discretion-limiting standard. U.S.C.A. tions, and therefore did not violate First Amendment; Const.Amend. 1. restrictions reasonably furthered government interest in preventing crime, and facility, which was required [9] Constitutional Law 42.1(6) to relocate, would have reasonable opportunity to 92k42.1(6) Most Cited Cases open and operate. U.S.C.A. Const.Amend. 1. Adult entertainment facility lacked standing to con- [13] Licenses 7(1) test constitutionality of city ordinance providing that 238k7(1) Most Cited Cases business license could not issue to any person con- A court's inquiry into constitutionality of city's li- victed of sex offenses, obscenity offenses, or adult censing provisions for a business is not concerned uses in past five years; facility made no showing that with the economic impact of restrictions on a particu- restriction would disable its owners from obtaining a lar business, but with the economic effects of the or- license. dinance in the aggregate, rather than at the individual level. [10] Constitutional Law 90.1(4) *886 Randall D.B. Tigue, Minneapolis, MN, argued, 92k90.1(4) Most Cited Cases for Plaintiffs-Appellants. When core First Amendment freedoms are made sub- ject to licensing, only revenue-neutral licensing fees James J. Thompson, Minneapolis, MN, argued, for may be imposed so that government is not charging Defendant-Appellee. for privilege of exercising this constitutional right. U.S.C.A. Const.Amend. 1. Before LOKEN, LAY, and HEANEY, Circuit Judges. [11] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases LOKEN, Circuit Judge.
[11] Public Amusement and Entertainment Jake's Bar in Coates, Minnesota, has featured live 9(1) nude dancing since early 1992. Coates is a town of 315Tk9(1) Most Cited Cases 182 people located fifteen miles southeast of St. Paul. (Formerly 376k3 Theaters and Shows) The Coates City Council enacted a zoning ordinance
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in 1994 that strictly limited the location of sexually 858, 861-63 (8th Cir.) (adult bookstore), cert. denied, oriented businesses. Jake's sued, and the district 513 U.S. 867, 115 S.Ct. 186, 130 L.Ed.2d 120 court declared that the ordinance unconstitutionally (1994); Holmberg v. City of Ramsey, 12 F.3d 140, infringed the First Amendment protection afforded to 142 (8th Cir.1993) (adult bookstore and novelty nude dancing as a form of expressive conduct. The shop), cert denied, 513 U.S. 810, 115 S.Ct. 59, 130 City then enacted an amended zoning ordinance and L.Ed.2d 17 (1994); Alexander v. City of Minneapolis, a restrictive licensing ordinance. Jake's sued again. 928 F.2d 278, 283-84 (8th Cir.1991) (adult theater). Ruling on cross motions for summary judgment, the district judge upheld the current ordinances. Jake's The 1994 zoning ordinance provided that sexually appeals. We modify one portion of the judgment and oriented businesses must be located within an agri- affirm. cultural zone and must be at least 750 feet from spe- cified uses, including other sexually oriented busi- I. Background. nesses, single- or multi-family dwellings, churches, [1][2] Nude dancing is expressive conduct protected schools, bars, and public parks. The ordinance also by the First Amendment, "though ... only marginally required all nonconforming sexually oriented busi- so." Barnes v. Glen Theatre, Inc., 501 U.S. 560, nesses to cease operations by December 31, 1996. 565-66, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) This type of delayed prohibition is known as an (plurality opinion). The Supreme Court has held that amortization *887 provision because it justifies the state and local laws prohibiting public nudity may removal of a nonconforming use by giving the owner constitutionally be applied to businesses such as a period of time to recoup (amortize) its investment Jake's, despite the limited First Amendment protec- before it must relocate. Jake's present location did tion afforded totally nude dancing. See City of Erie v. not comply with the 1994 ordinance because it is not Pap's A.M., 529 U.S. 277, 296-302, 120 S.Ct. 1382, in an agricultural zone and is less than 750 feet from 146 L.Ed.2d 265 (2000) (plurality opinion); Barnes, a residence. Thus, the amortization provision if val- 501 U.S. at 567-72, 111 S.Ct. 2456 (plurality opin- id would force Jake's to relocate. ion). But the City of Coates elected to proceed dif- ferently. Rather than ban public nudity altogether, Jake's filed a lawsuit in state court challenging the its 1994 ordinance regulated the time, place, and 1994 ordinance in late 1996. After the City re- manner in which Jake's as a sexually oriented busi- moved, the district court declared the ordinance un- ness may present live nude dancing to its customers. constitutional because the requirement that a portion It is now well-established that this type of regulation of any new subdivision of agriculturally zoned land is permissible under the First Amendment provided be donated as parkland did not leave any site to the ordinance is justified without reference to the which Jake's could lawfully relocate (as the ordinance content of the regulated speech, is designed to pro- prohibited Jake's from locating near a public park). mote a substantial government interest, and allows However, Judge Richard H. Kyle's opinion further reasonable alternate avenues for communication. City stated: of Renton v. Playtime Theatres, Inc., 475 U.S. 41, [I]f Coates' requirement for land dedication for 48-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). We subdivision were altered either to allow some non- have applied this test in numerous cases in which discretionary alternative (equivalent fee in lieu of various adult entertainment businesses challenged the land dedication) or to limit the land dedication local zoning and licensing ordinances. See BZAPS, requirement to certain types of subdivision (i.e., Inc. v. City of Mankato, 268 F.3d 603, 605 (8th subdivisions over a certain size), much of the land Cir.2001) (nude dancing); ILQ Investments, Inc. v. in the four quadrants [containing possible reloca- City of Rochester, 25 F.3d 1413, 1416 (8th Cir.) tion sites] would be rendered available for a sexu- (adult bookstore), cert. denied, 513 U.S. 1017, 115 ally oriented business. The Court sees the discre- S.Ct. 578, 130 L.Ed.2d 493 (1994); Ambassador tionary aspect of the waiver of the land dedication Books & Video, Inc. v. City of Little Rock, 20 F.3d requirement to be the only obstacle to Coates' zon- ing ordinance passing constitutional muster.
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Rather than appeal Judge Kyle's decision, the City [3] Jake's argues that the Coates ordinance fails the amended its zoning ordinance to correct this constitu- City of Renton test because the City had an insuffi- tional deficiency by making the parkland dedication cient evidentiary basis to conclude that its zoning re- requirement nondiscretionary and permitting a de- strictions further a substantial government interest. veloper to make a "cash park dedication" in lieu of The ordinance is intended to reduce criminal activity, dedicating land. The City also enacted a licensing prevent the deterioration of residential neighbor- ordinance imposing numerous restrictions on sexu- hoods, and eliminate the "dehumanizing influence" ally oriented businesses. As relevant to this appeal, that sexually oriented businesses may have on the ordinance restricted persons with a criminal his- churchgoers, park users, and daycare clients. These tory for sex related offenses from obtaining a license, are commonly known as the adverse "secondary ef- imposed license and investigation fees, required that fects" of adult entertainment enterprises. It is well- dancers and patrons be at least six feet apart at all settled that a city's interest in preserving the quality times, and prohibited dancers from soliciting and cus- of urban life and the character of its neighborhoods tomers from offering gratuities. justifies zoning restrictions intended to minimize such effects. See Young v. American Mini Theatres, Jake's commenced this action in state court challen- Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 49 L.Ed.2d 310 ging the new zoning and licensing ordinances. The (1976) (plurality opinion). City again removed, and the case was assigned to Judge Donovan W. Frank. On cross-motions for [4] In making its secondary effects findings, the City summary judgment, Judge Frank upheld the chal- relied on previous studies by Phoenix, Seattle, Indi- lenged ordinances but stayed his order pending ap- anapolis, Rochester (Minnesota), St. Paul, and the peal, thereby permitting Jake's to remain Minnesota Attorney General. The City also relied open. Jake's, Ltd. v. City of Coates, 176 F.Supp.2d on a 1999 memorandum by the City Attorney review- 899, 905-11, and 169 F.Supp.2d 1014, 1017-19 ing these studies and reporting that 17 of 38 crimes (D.Minn.2001). Jake's appeals, renewing its chal- prosecuted by the City since December 1993 were lenges to the current zoning and licensing ordinances. "Jake's related." Jake's countered with an expert's study opining that the City Attorney erred in attribut- II. Zoning Issues. ing many of the 17 crimes to Jake's. Relying on this City of Renton requires that an ordinance restricting study, Jake's argues that the police activity due to adult entertainment be content-neutral, promote a Jake's is on a par with that at The House of Coates, a substantial government interest, and allow reasonable local bar that does not have nude dancing, and there- alternate avenues for communication. 475 U.S. at fore the City's crime statistics do not support regulat- 48-50, 106 S.Ct. 925. Two of those requirements are ing Jake's on the basis of this secondary effect. In not at issue in this case. Jake's concedes the ordin- addition, pointing to evidence that property values ances at issue are content neutral. See also ILQ, 25 near Jake's have increased in recent years, Jake's ar- F.3d at 1416 (even if an ordinance regulates only gues the City has no evidence that sexually oriented sexually oriented businesses, it is content-neutral "if businesses contribute to economic blight. Therefore, its purpose is to lessen undesirable secondary effects Jake's concludes, the City Council had no evidence attributable to those businesses"). And the final as- supporting its conclusion that the zoning ordinance pect of the City of Renton test--whether the zoning would reduce adverse secondary effects. We dis- ordinance allows reasonable alternative avenues for agree. communication--is no longer an issue because Judge Kyle's initial decision told the City how to amend the [5] Leaving aside whether the record is adequate to ordinance to cure a prior defect, the City amended show the adverse secondary effects of crime and eco- *888 the ordinance accordingly, and Jake's does not nomic blight, Jake's argument is flawed because it ig- argue it has no reasonable alternative site where it nores the City's reliance on studies showing that may now relocate. proximity to sexually oriented businesses results in adverse secondary effects on residential neighbor-
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hoods, churches, schools, and other land uses that nicipalities to use amortization as a means of elimin- would be lessened by an ordinance imposing distance ating nonconforming adult businesses is unconstitu- restrictions as great or greater than the 750 foot re- tional. See Minn.Stat. § 462.357, subd. lc. striction in the Coates ordinance. The appropriate (2000). This argument is without merit. We have location of various land users is a prime objective of repeatedly upheld amortization provisions requiring municipal zoning. And a city need not conduct its nonconforming adult entertainment businesses to re- own studies to demonstrate that a proposed ordinance locate as part of a municipality's valid time, place, will serve to reduce adverse secondary effects, "so and manner regulation of such businesses. See Am- long as whatever evidence the city relies upon is reas- bassador Books, 20 F.3d at 865; Holmberg, 12 F.3d onably believed to be relevant to the problem that the at 142, 144; Alexander, 928 F.2d at 283-84. Here, the city addresses." City of Renton, 475 U.S. at 51-52, state statute merely authorizes municipalities to 106 S.Ct. 925. See City of Erie, 529 U.S. at 297, 120 amortize nonconforming sexually oriented busi- S.Ct. 1382; Young, 427 U.S. at 55, 96 S.Ct. 2440. nesses. The relevant question is whether a municip- We have repeatedly upheld as reasonable the reliance ality's use of that authority complies with the City of on secondary effects studies from other communities Renton standards. The State of Minnesota was under to justify distance restrictions of this type. See ILQ, no constitutional obligation to study secondary ef- 25 F.3d at 1417-18; Ambassador Books, 20 F.3d at fects in the abstract before granting this authority to 860; Holmberg, 12 F.3d at 142. local governmental bodies.
Jake's argues that this case is like Flanigan's Enter., Jake's further argues that Coates may not invoke the Inc. of Ga. v. Fulton County, 242 F.3d 976 (11th statutory exception and impose amortization on Cir.2001), petition for cert. filed, 70 U.S.L.W. 3091 Jake's because it does not qualify as a "similar adults- (July 23, 2001) (No. 01-144), where the court re- only business" under state law. The argument is versed a grant of summary judgment because the contrary to the plain language of the statute, [FN1] County had not reasonably relied on studies from but Jake's attempts to avoid this issue of statutory other communities. *889 But Flanigan's is distin- construction by arguing there is no "constitutional guishable in two critical respects. First, it involved a basis" for classifying Jake's as similar to an adults- total ban on nude dancing in establishments that only business, and the statutory language is in any serve liquor, not a locational zoning restriction. 242 event unconstitutionally vague. At this point, the ar- F.3d at 974. Thus, the adverse secondary effects gument becomes a jumble of federal and state law from proximity to churches, schools, and other spe- concepts. The simple and complete answer is that cific land uses were not at issue. Second, in the Coates zoning ordinance as applied to Jake's Flanigan's, the County's own studies refuted the pres- passes muster under City of Renton, and the state stat- ence of the secondary effects on which it relied. 242 ute permitting amortization of "adults-only" busi- F.3d at 986. Here, though Jake's attacks the City's nesses is valid under deferential rational-basis re- secondary effects findings, the City contends they are view. Therefore, we affirm the district court's de- supported by the secondary effects evidence, includ- cision that the Coates zoning ordinances regulating ing the City Attorney's 1999 report. Like the district sexually oriented businesses (found in Coates Ordin- court, we conclude the City relied upon secondary ef- ances Nos. 40 and 41) are constitutional. fects evidence it "reasonably believed to be relevant to the problem" it addressed in the zoning ordin- FN1. After prohibiting municipalities from ance. City of Renton, 475 U.S. at 51-52, 106 S.Ct. using amortization to eliminate nonconform- 925. ing uses, Minn.Stat. § 462.537, subd. lc, provides that this restriction "does not apply [6] Having no viable challenge to the City's zoning to adults-only bookstores, adults-only theat- restrictions under City of Renton, Jake's attacks the ers, or similar adults-only businesses, as amortization provision in the zoning ordinance. defined by ordinance." The Coates zoning Jake's first argues that the state statute permitting mu- ordinance defines a sexually oriented busi-
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ness as "an adult book store, adult body Jake's further objects that the license renewal provi- painting studio, adult companionship estab- sion does not provide for a stay pending appeal if re- lishment, adult motion picture theater, adult newal is denied. Jake's did not raise this issue in the entertainment facility, adult modeling stu- district court, and we decline to consider it. dio, adult mini motion picture theater, or adult sauna" and includes definitions of each [9] B. Jake's next argues that Ordinance 36 unconsti- type of adult business. tutionally provides that a license may not issue to any person who "has had a conviction of a felony or a III. Licensing Issues. gross misdemeanor or misdemeanor relating to sex [7] A. Jake's first argues that the licensing provisions offenses, obscenity offenses, or adult uses in the past in Coates Ordinance No. 36 constitute an unconstitu- five (5) years." A similar restriction was upheld in tional prior restraint on free expression. "[I]n the DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 414 *890 area of free expression a licensing statute pla- (6th Cir.1997). However, Jake's lacks standing to cing unbridled discretion in the hands of a govern- raise the issue because it made no showing that the ment official or agency constitutes a prior restraint restriction will disable its owners from obtaining a li- and may result in censorship." City of Lakewood v. cense. Therefore, the district court lacked jurisdic- Plain Dealer Publ'g Co., 486 U.S. 750, 757, 108 tion to consider the issue, and we must vacate the S.Ct. 2138, 100 L.Ed.2d 771 (1988). Jake's does not grant of summary judgment upholding this provision challenge the provisions in Ordinance 36 governing in the ordinance. See FW/PBS, 493 U.S. at 234-35, issuance of an initial license, which impose time con- 110 S.Ct. 596. straints on the approval process, require the use of objectively verifiable criteria, and provide for prompt [10] C. Jake's next argues that Ordinance 36 imposes judicial review, the constitutional requirements enu- a $2,500 fee that is constitutionally unreasonable. merated in the various opinions in FW/PBS, Inc. v. When core First Amendment freedoms are made sub- City of Dallas, 493 U.S. 215, 224-27, 239, 246, 249, ject to licensing, only revenue-neutral licensing fees 110 S.Ct. 596, 107 L.Ed.2d 603 (1990). Instead, may be imposed so that government is not charging Jake's argues that Ordinance 36 confers unbridled for the privilege of exercising this constitutional discretion in authorizing the City to suspend licenses right. See Murdock v. Pennsylvania, 319 U.S. 105, if a sexually oriented business is conducted "in such a 115-16, 63 S.Ct. 870, 87 L.Ed. 1292 (1943); Cox v. manner as ... to constitute a menace to the health, New Hampshire, 312 U.S. 569, 576-77, 61 S.Ct. 762, safety, or general welfare of the community." 85 L.Ed. 1049 (1941). Jake's argues that this prin- ciple extends to the licensing of sexually oriented [8] Jake's cites no authority for the proposition that businesses, citing three district court decisions that the prior restraint standards of City of Lakewood and referred to such fees as implicating "fundamental" FW/PBS apply equally to license suspensions and re- rights. See AAK, Inc. v. City of Woonsocket, 830 vocations. The proposition is inherently suspect, be- F.Supp. 99, 105 (D.R.I.1993); Wendling v. City of cause license revocation is necessarily less of a prior Duluth, 495 F.Supp. 1380, 1384-85 (D.Minn.1980); restraint than the initial licensing process. But in any Bayside Enter., Inc. v. Carson, 450 F.Supp. 696, 704 event, we reject as frivolous the contention that an or- (M.D.Fla.1978). In our view, the analogy to Mur- dinance authorizing revocation if the licensee is "a dock and Cox *891 does not withstand close analysis menace to the health, safety, or general welfare of the in light of the Supreme Court's declaration that nude community" confers unbridled discretion. This is a dancing is "only marginally" protected by the First specific discretion-limiting standard not unlike the Amendment. definition of a public nuisance long known to the law. See, e.g., Minn.Stat. § 609.74(1) (defining pub- [11] We recognize that an adult entertainment license lic nuisance as a condition which "endangers the fee may be so large or so discriminatory as to demon- safety, health, morals, comfort, or repose of any con- strate that it is not content neutral. But in other con- siderable number of members of the public"). texts, the prospective licensee has the burden of es-
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tablishing that a license fee is unreasonable. See have a disastrous effect on its ability to operate be- LCM Enter., Inc. v. Town of Dartmouth, 14 F.3d 675, cause the six-foot requirement would eliminate two- 680 (1st Cir.1994). Jake's offered no evidence on thirds of the seating capacity of 120 patrons, elimin- this issue, instead simply arguing that the City had ate customer access to the women's restroom, and re- the burden to prove its fee is revenue neutral. On quire further capacity reductions to permit access to this record, we conclude the district court's grant of the men's restroom. Under the City of Renton stand- summary judgment was proper. ard, Ordinance 36 must afford Jake's a "reasonable opportunity to open and operate." 475 U.S. at 54, 106 [12] D. Finally, Jake's challenges the provisions in S.Ct. 925. The inquiry is not concerned with the Ordinance 36 requiring that live exotic dancing be economic impact of restrictions on a particular busi- conducted on a platform raised at least two feet from ness; instead, "we consider the economic effects of the floor and located no less than six feet from any the ordinance in the aggregate, not at the individual patron, and prohibiting the solicitation or offering of level." DLS, 107 F.3d at 413. Here, the Coates zon- gratuities for the dancers. Several circuits have up- ing ordinance is constitutional, so Jake's must relo- held similar requirements as reasonable, content-neut- cate. Jake's presented no evidence that it could not ral time, place, and manner restrictions. See Deja Vu design a viable new facility that would satisfy the six- of Nashville, Inc. v. Metro. Gov't of Nashville & Dav- foot requirement. It presented evidence that the no- idson County, 274 F.3d 377, 396-98 (6th Cir.2001) tipping restriction would reduce profits and adversely (three feet); DLS, 107 F.3d at 408-13 (six feet); affect the income of the dancers, but that evidence Colacurcio v. City of Kent, 163 F.3d 545, 553 (9th fell far short of establishing that Ordinance 36 does Cir.1998), cert. denied, 529 U.S. 1053, 120 S.Ct. not provide a reasonable*892 opportunity to open 1553, 146 L.Ed.2d 459 (2000) (ten feet); Kev, Inc. v. and operate. Thus, while the short-term financial Kitsap County, 793 F.2d 1053, 1061-62 (9th impact of these restrictions might affect implementa- Cir.1986) (ten feet and no tipping). tion of the zoning ordinance's amortization provision- -an issue we do not consider--it does not affect the Jake's argues that these restrictions are not needed to validity of Ordinance 36. combat adverse secondary effects in Coates, pointing to the lack of arrests for sex crimes at its establish- IV. Conclusion. ment. Jake's also contends that distance require- The judgment of the district court is affirmed except ments destroy "individual patron-focused dancing, a the portion that declared section 508.10(5) of Coates separate and distinct medium of communication," re- Ordinance No. 36 constitutional. We modify the lying on expert testimony it presented to that effect. judgment to provide that plaintiffs' challenge to sec- Like our sister circuits, we conclude these restrictions tion 508.10(5) is dismissed for lack of jurisdiction. reasonably further the government interest in pre- venting crime. As the Ninth Circuit observed in 284 F.3d 884 Kev, 793 F.2d at 1061: Separating dancers from patrons would reduce the Briefs and Other Related Documents (Back to top) opportunity for prostitution and narcotics transac- • 01-1869 (Docket) (Apr. 16, 2001) tions.... Preventing the exchange of money between dancers and patrons would also appear to reduce • 2001 WL 34108187 (Appellate Brief) Appellee's the likelihood of drug and sex transactions occur- Brief (2001)Original Image of this Document (PDF) ring on regulated premises.... While the dancer's erotic message may be slightly less effective from END OF DOCUMENT ten feet, the ability to engage in the protected ex- pression is not significantly impaired. (footnotes omitted)
[13] Jake's further argues these provisions would
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[1] Constitutional Law 90(1) 92k90(1) Most Cited Cases Motions, Pleadings and Filings Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First United States District Court, Amendment principles. U.S.C.A. Const.Amend. 1. S.D. California. [2] Constitutional Law 90.4(1) FANTASYLAND VIDEO, INC., Plaintiff, 92k90.4(1) Most Cited Cases v. Sexually-oriented speech enjoys some protection un- COUNTY OF SAN DIEGO, Defendant. der the free speech provisions of the First Amend- Tollis, Inc. and 1560 N. Magnolia Ave., LLC, ment. U.S.C.A. Const.Amend. 1. Plaintiffs, v. [3] Constitutional Law 90(1) County of San Diego, Defendant. 92k90(1) Most Cited Cases Nos. CIV. 02CV1909-LABRBB, CIV. 02CV2023-LABRBB. [3] Constitutional Law 90(3) 92k90(3) Most Cited Cases June 14, 2005. If a law is designed to have a direct impact by re- stricting sexually-oriented speech because of the con- Background: Operators of adult entertainment busi- tent of the speech and because of the effect the nesses brought action against county, alleging certain speech may have on its listeners, the law is referred amendments to county ordinances regulating adult to as a content-based restriction, and the government entertainment businesses violated their rights under bears an especially heavy burden to overcome a First the federal and California constitutions. Parties filed Amendment challenge; content-based speech restric- cross-motions for summary judgment. tion can survive a First Amendment challenge only if Holdings: The District Court, Burns, J., held that: it satisfies strict scrutiny, which requires the govern- (1) hours-of-operation restriction did not violate First ment not only to identify and establish a compelling Amendment; interest but also to explain why a less restrictive pro- (2) open-peep show booth requirement did not violate vision would not be as effective. U.S.C.A. First Amendment; Const.Amend. 1. (3) amended ordinance prohibiting live nude enter- [4] Constitutional Law 90.4(1) tainment, but which permitted semi-nude dancing 92k90.4(1) Most Cited Cases which required de minimis coverage, did not violate If a law is content-neutral, and its restrictions on free speech provisions of First Amendment or Cali- sexually-oriented speech are primarily justified, not fornia Constitution; by the concern for the effect of the subject matter on (4) zoning amendment requiring adult entertainment listeners, but by reducing negative secondary effects establishments to be located in industrial zones met associated with the intermediate scrutiny standard of First Amend- the speech, it is subject to the intermediate level of ment; and scrutiny under First Amendment, which is highly de- (5) permit application process for adult entertainment ferential to the government. U.S.C.A. Const.Amend. businesses was unconstitutional to the extent that it 1. failed to impose reasonable time limits on the de- cisionmaker to act on administrative permit applica- [5] Constitutional Law 90(3) tions. 92k90(3) Most Cited Cases Motions granted in part and denied in part. Content-neutral time, place, and manner restrictions are constitutional under First Amendment intermedi- West Headnotes
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ate scrutiny even if they restrain speech, so long as nia Constitution under intermediate level of scrutiny. they meet three requirements: restriction must (1) be West's Ann.Cal. Const. Art. 1, § 2. content-neutral, (2) be narrowly tailored to serve a substantial government interest, and (3) allow for [9] Constitutional Law 90.4(4) reasonable alternative avenues of communication. 92k90.4(4) Most Cited Cases U.S.C.A. Const.Amend. 1. [9] Public Amusement and Entertainment [6] Constitutional Law 90(3) 9(1) 92k90(3) Most Cited Cases 315Tk9(1) Most Cited Cases Under intermediate level of scrutiny, government is Open-peep show booth requirement in county ordin- not required to meet an unnecessarily rigid burden of ance regulating adult entertainment businesses was a proof to justify a restriction on speech under First valid restriction on speech under First Amendment; Amendment, and may rely on general experiences, restriction was imposed to prevent unlawful sexual findings, and studies completed by other local gov- activities between patrons and the resulting spread of ernments, including those reflected in judicial opin- sexually-transmitted diseases, was supported by the ions; party challenging restriction must effectively evidence relied on by county, and was narrowly controvert much, if not all, of government's evidence, tailored to further that legitimate governmental in- leaving less than "some evidence" on which the gov- terest. U.S.C.A. Const.Amend. 1. ernment could reasonably rely for the restriction. [10] Constitutional Law 90.4(1) U.S.C.A. Const.Amend. 1. 92k90.4(1) Most Cited Cases [7] Constitutional Law 90.4(3) As long as there is no absolute bar to the market, it is 92k90.4(3) Most Cited Cases irrelevant to First Amendment analysis whether a time, place, and manner restriction on speech will [7] Public Amusement and Entertainment result in lost profits, higher overhead costs, or even 9(1) prove to be commercially unfeasible for an adult 315Tk9(1) Most Cited Cases business. U.S.C.A. Const.Amend. 1. Hours-of-operation restriction in amendments to county ordinances regulating adult entertainment [11] Constitutional Law 90(3) businesses did not violate free speech provision of 92k90(3) Most Cited Cases First Amendment under intermediate level of scru- In seeking to uphold a restriction on speech under tiny; operators of adult entertainment businesses First Amendment intermediate level of scrutiny ana- failed to rebut more than just some of the categories lysis, government may rely on findings in relevant of permissible evidence relied upon by the county case law, as well as the experiences of other local with respect to targeted negative secondary effects governments, and is not required to conduct new associated with the speech. U.S.C.A. Const.Amend. studies or produce evidence independent of that 1. already generated by other cities, so long as whatever evidence it relies upon is reasonably believed to be [8] Constitutional Law 90.4(3) relevant to the problem it addresses. U.S.C.A. 92k90.4(3) Most Cited Cases Const.Amend. 1.
[8] Public Amusement and Entertainment [12] Constitutional Law 90(3) 9(1) 92k90(3) Most Cited Cases 315Tk9(1) Most Cited Cases A time, place, and manner restriction is considered Hours-of-operation restriction in amendments to narrowly tailored for First Amendment purposes if county ordinances regulating adult entertainment the government shows its chosen means serves a sub- businesses, which met federal constitutional stand- stantial government interest, and affects only that cat- ards, did not violate free speech provision of Califor- egory of businesses shown to produce the unwanted
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secondary effects; under intermediate scrutiny, the county's interest in reducing the opportunity for pros- government is not required to establish the means it titution and narcotics transactions between entertain- has chosen is the least restrictive or the most effective ers and patrons was a legitimate justification for the for addressing a particular problem nor is the govern- ordinance, and requirements were reasonably linked ment required to show the chosen means will be ef- to the secondary effects that the county identified as fective in combating the negative secondary effects. its purpose in enacting the requirements. U.S.C.A. U.S.C.A. Const.Amend. 1. Const.Amend. 1.
[13] Constitutional Law 90.4(3) [16] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases 92k90.4(3) Most Cited Cases
[13] Public Amusement and Entertainment [16] Public Amusement and Entertainment 9(2) 9(2) 315Tk9(2) Most Cited Cases 315Tk9(2) Most Cited Cases Amended ordinance prohibiting live nude entertain- No-direct-tipping provision of amended adult enter- ment, but which permitted semi-nude dancing which tainment ordinance did not violate free speech provi- required de minimis coverage, did not violate free sion of First Amendment; county's interest in redu- speech provisions of First Amendment or California cing the opportunity for prostitution and narcotics Constitution; county relied on the legislative record transactions between entertainers and patrons was a including numerous studies from other jurisdictions, legitimate justification for the ordinance, and prohibi- experiences of other municipalities as reported in tion was reasonably linked to the secondary effects case law, and local public testimony regarding sec- that the county identified as its purpose in enacting ondary effects such as prostitution, public sexual the prohibition. U.S.C.A. Const.Amend. 1. activity, and narcotics trafficking, ordinance was nar- rowly tailored to further legitimate governmental in- [17] Constitutional Law 296(1) terests, and there was no evidence showing how 92k296(1) Most Cited Cases county's new requirement would affect the dancers' [17] Public Amusement and Entertainment erotic message. U.S.C.A. Const.Amend. 1; West's 9(2) Ann.Cal. Const. Art. 1, § 2. 315Tk9(2) Most Cited Cases [14] Constitutional Law 90.4(3) Phrase "regularly appears in a state of semi-nudity," 92k90.4(3) Most Cited Cases as used in no-direct-tipping provision of the amended Nude dancing is expressive conduct within the outer adult entertainment ordinance was not impermissibly perimeters of the First Amendment. U.S.C.A. vague in violation of Due Process Clause simply be- Const.Amend. 1. cause it did not specify the frequency required to es- tablish regularity. U.S.C.A. Const.Amend. 14. [15] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases [18] Constitutional Law 251.4 92k251.4 Most Cited Cases [15] Public Amusement and Entertainment A statute or ordinance is not unconstitutionally vague 9(2) in violation of due process simply because it includes 315Tk9(2) Most Cited Cases a flexible standard or provides some discretion for Proximity limit and staging requirement of amended enforcement officials. U.S.C.A. Const.Amend. 14. adult entertainment ordinance, which required semi- nude entertainers to perform at least six feet from the [19] Constitutional Law 82(1) nearest area occupied by patrons and on a stage elev- 92k82(1) Most Cited Cases ated at least eighteen inches from the floor, did not [19] Constitutional Law 252.5 violate free speech provision of First Amendment; 92k252.5 Most Cited Cases
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Where a particular Amendment provides an explicit ment licenses, the lack of evidence showing others textual source of constitutional protection against a wished to open an adult entertainment business in the particular sort of government behavior, that Amend- unincorporated area of county, the number of poten- ment, not the more generalized notion of substantive tially available sites and their acreage, and the total due process, must be the guide for analyzing those industrial and commercial acreage and population in claims. U.S.C.A. Const.Amend. 14. the unincorporated area, county showed that the num- ber of sites available to adult entertainment busi- [20] Constitutional Law 90.4(3) nesses under the amended zoning ordinance was suf- 92k90.4(3) Most Cited Cases ficient to provide reasonable alternative avenues of communication, as required by First Amendment. [20] Public Amusement and Entertainment U.S.C.A. Const.Amend. 1. 9(2) 315Tk9(2) Most Cited Cases [24] Constitutional Law 90.4(3) Provision of county's amended adult entertainment 92k90.4(3) Most Cited Cases ordinance prohibiting the touching of semi-nude per- For purposes of First Amendment challenge to zon- formers did not offend free speech provision of First ing ordinance governing adult entertainment use, Amendment; ordinance targeted conduct likely to factors for consideration in determining whether a lead to the unwanted secondary effects of prostitu- site is reasonably within the business real estate mar- tion, pandering and drug trafficking, and was nar- ket so as to constitute a reasonable alternative avenue rowly tailored. U.S.C.A. Const.Amend. 1. of communication are: (1) a relocation site is not part of the market if it is unreasonable to believe that it [21] Zoning and Planning 167.1 would ever become available to any commercial en- 414k167.1 Most Cited Cases terprise; (2) a relocation site in a manufacturing or in- Operator of adult entertainment business failed to dustrial zone that is reasonably accessible to the gen- show that zoning amendment requiring adult enter- eral public may also be part of the market; (3) a site tainment establishments to be located in industrial in a manufacturing zone that has proper infrastructure zones was inconsistent with the general plan. West's may be included in the market; (4) a site must be Ann.Cal.Gov.Code § 65860. reasonable for some generic commercial enterprise, [22] Constitutional Law 90.4(3) although not every particular enterprise, before it can 92k90.4(3) Most Cited Cases be considered part of the market; (5) a site that is commercially zoned is part of the relevant market; [22] Zoning and Planning 167.1 and (6) site must satisfy the conditions of the zoning 414k167.1 Most Cited Cases ordinance in question. U.S.C.A. Const.Amend. 1. Zoning amendment requiring adult entertainment es- tablishments to be located in industrial zones met the [25] Constitutional Law 90.4(3) intermediate scrutiny standard of First Amendment 92k90.4(3) Most Cited Cases because it was supported by evidence showing that it For purposes of First Amendment challenge to zon- would advance a substantial government interest in ing ordinance governing adult entertainment use, re- reducing negative secondary effects, was narrowly location sites in industrial zones are considered avail- tailored, and left open reasonable alternative means able so as to constitute a reasonable alternative aven- of communication. U.S.C.A. Const.Amend. 1. ue of communication, if they are reasonably access- ible to the public and have the appropriate infrastruc- [23] Constitutional Law 90.4(3) ture; whether the infrastructure provided is adequate 92k90.4(3) Most Cited Cases depends on whether it is reasonably necessary for any generic commercial enterprise, and as long as it is a [23] Zoning and Planning 167.1 part of an actual business real estate market for gen- 414k167.1 Most Cited Cases eric commercial enterprises, whether a site is eco- Given the history of scant demand for adult entertain- nomically or physically suited for adult entertainment
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use is irrelevant, as are current occupancy and re- 9(1) strictive lease terms prohibiting adult uses. U.S.C.A. 315Tk9(1) Most Cited Cases Const.Amend. 1. Permit application process for adult entertainment businesses, which gave county seventy days to make [26] Constitutional Law 90.4(3) the decision on a permit application plus sixty days to 92k90.4(3) Most Cited Cases consider an appeal, was unconstitutional to the extent that it failed to impose reasonable time limits on the [26] Zoning and Planning 76 decisionmaker to act on administrative permit applic- 414k76 Most Cited Cases ations; the only factor in the permit decision could be Mere presence of hazardous waste, without any evid- quickly verified by county's GIS system, which ence as to its extent or showing it is prohibitive to measured the distance between two points. any generic commercial enterprise, was insufficient to render a relocation site for adult entertainment use [30] Zoning and Planning 86 unavailable for purposes of reasonable alternative av- 414k86 Most Cited Cases enues of communication prong of First Amendment Unconstitutional permit application process for adult analysis under intermediate level of scrutiny. entertainment businesses was severable from remain- U.S.C.A. Const.Amend. 1. ing substantive zoning provisions since remaining provisions were sufficiently complete in themselves, [27] Constitutional Law 82(10) and county likely would have adopted the amended 92k82(10) Most Cited Cases zoning ordinance, even if it had foreseen some of its With respect to First Amendment analysis of zoning procedural provisions would be invalidated. ordinance, supply and demand should be only one of several factors that a court considers when determin- [31] Zoning and Planning 167.1 ing whether an adult business has a reasonable oppor- 414k167.1 Most Cited Cases tunity to open and operate in a particular city; court Although business had been affected disproportion- should also look to a variety of other factors includ- ately because it was the only adult entertainment ing, but not limited to, the percentage of available business which had to change its location as result of acreage theoretically available to adult businesses, zoning ordinance, business failed to establish its spot the number of sites potentially available in relation to zoning claim under California law; the only reason- the population, community needs, the incidence of able interpretation of ordinance was that county in- adult businesses in other comparable communities, tended the zoning ordinance as amended to apply to and the goals of the city plan. U.S.C.A. all adult entertainment businesses. U.S.C.A. Const.Amend. 1. Const.Amend. 14.
[28] Constitutional Law 90.4(3) [32] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases 92k90.4(3) Most Cited Cases
[28] Zoning and Planning 167.1 [32] Public Amusement and Entertainment 414k167.1 Most Cited Cases 9(1) In determining whether number of sites available to 315Tk9(1) Most Cited Cases adult entertainment businesses under the amended For First Amendment free speech purposes, licensing zoning ordinance was sufficient to provide reason- and registration requirements for adult entertainment able alternative avenues of communication for First establishments and their owners, managers, per- Amendment purposes, focus was on the actual busi- formers, and employees were narrowly tailored ex- ness real estate market where a generic commercial cept to the extent that they required each officer, dir- enterprise could potentially operate. U.S.C.A. ector, general partner, or other person who would Const.Amend. 1. manage or participate directly in the decisions relat- ing to management and control of the business to ap- [29] Public Amusement and Entertainment
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pear in person at the Sheriff's office to file the estab- San Diego, CA, for Tollis Inc, movant. lishment license application, and to the extent that it required the same category of individuals to also ap- ORDER GRANTING IN PART AND DENYING ply for an employee license, if they were employees IN PART PLAINTIFFS' JOINT MOTION FOR as the term was defined in the ordinance; remaining SUMMARY licensing requirements were narrowly tailored to JUDGMENT; ORDER GRANTING IN PART serve a substantial government interests in preventing AND DENYING IN PART DEFENDANT'S MO- minors and those who had recently been convicted of TION FOR certain crimes from working on the premises, facilit- SUMMARY JUDGMENT OR, IN THE AL- ating the identification of potential witnesses or sus- TERNATIVE, PARTIAL SUMMARY JUDG- pects, and curtailing the spread of sexually-trans- MENT; mitted diseases. U.S.C.A. Const.Amend. 1. INJUNCTION; and ORDER TO SHOW CAUSE BURNS, District Judge. [33] Constitutional Law 90.4(3) 92k90.4(3) Most Cited Cases In their respective complaints, plaintiffs allege certain amendments to San Diego County ordinances regu- [33] Public Amusement and Entertainment lating adult entertainment businesses violate their 9(1) rights under the federal and California constitutions. 315Tk9(1) Most Cited Cases Before the Court are plaintiffs' Joint Motion for Sum- Adult entertainment establishment licensing provi- mary Judgment and defendant's Motion for Summary sion requiring applicants to disclose information re- Judgment or, in the Alternative, Partial Summary garding their names, and business addresses, to the Judgment. The parties also filed opposing and reply county did not have a "chilling effect" on speech pro- papers, as well as a joint statement of undisputed tected by First Amendment. U.S.C.A. Const.Amend. facts, almost 2,000 pages of legislative record, and 1. over 700 pages of declarations and exhibits. Defend- ant also filed evidentiary objections. [FN1] Although [34] Public Amusement and Entertainment the parties requested oral argument, the Court finds 9(1) the issues in both motions appropriate for decision on 315Tk9(1) Most Cited Cases the papers and without oral argument pursuant to Licensing provisions applicable to adult entertain- Civil Local Rule 7.1(d)(1). For the reasons discussed ment establishments satisfied the required procedural below, plaintiffs' Joint Motion for Summary Judg- safeguards; provisions, which authorized denial ment is GRANTED IN PART AND DENIED IN based only on objective criteria, did not place un- PART, and defendant's Motion for Summary Judg- bridled discretion in the hands of a government offi- ment or, in the Alternative, Partial Summary Judg- cial or agency, licensor had to make the decision ment is GRANTED IN PART AND DENIED IN whether to issue the license within thirty days during PART. As specified more fully below, the Court which the status quo was maintained, and there was finds *1101 unconstitutional certain procedural pro- the possibility of immediate judicial review in the visions of the ordinance amendments pertaining to li- event that the license was erroneously denied. censing and zoning regulations. *1100 Clyde F De Witt, Weston Garrou and DeWitt, Los Angeles, CA, for Fantasyland Video, Inc., FN1. To the extent the objections are not ad- plaintiff. dressed below, they are overruled.
Thomas Dale Bunton, County of San Diego Office of Background County Counsel, San Diego, CA, for County of San In June 2002, the San Diego County Board of Super- Diego, defendant. visors passed Local Ordinance No. 9469, entitled "An Ordinance Amending the San Diego County Zoning A Dale Manicom, Law Office of A Dale Manicom, Ordinance Relating to Adult Entertainment Establish-
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ments;" and Local Ordinance No. 9479, entitled "An ground all amendments to the ordinances are consti- Ordinance Amending the San Diego County Code of tutional and enforceable against plaintiffs. Regulatory Ordinances Relating to the Licensing and Regulation of Adult Entertainment Establishments." Discussion (Legislative Record ("LR"), at 15-32, 139-75.) Both I. Summary Judgment Standards of these ordinances were effective in July 2002. Federal Rule of Civil Procedure 56(c) empowers the Plaintiffs filed two separate complaints against San court to enter summary judgment on factually unsup- Diego County ("County") which have been consolid- ported claims or defenses, and thereby "secure the ated. (Order filed Aug. 5, 2004, at 2, 5.) Plaintiff just, speedy and inexpensive determination of every Tollis, Inc. owns property at 1560 N. Magnolia Av- action." Celotex Corp. v. Catrett, 477 U.S. 317, 325, enue in the Pepper Drive/Bostonia area of San Diego 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Sum- County, which it leases to plaintiff 1560 N. Magnolia mary judgment is appropriate if the "pleadings, de- Ave., LLC. At this location, plaintiff 1560 N. Magno- positions, answers to interrogatories, and admissions lia Ave., LLC operates a business called Deja Vu, on file, together with the affidavits, if any, show that which sells sexually explicit books, magazines, and there is no genuine issue as to any material fact and novelties. Deja Vu also wants to offer live nude dan- that the moving party is entitled to judgment as a cing at this location. It acquired its present location matter of law." Fed.R.Civ.P. 56(c); see also Arpin v. before the amendments went into effect, after obtain- Santa Clara Valley Transp. Agency, 261 F.3d 912, ing the operating permit, and on the contingency it 919 (9th Cir.2001). *1102 The moving party bears could offer nude entertainment. Hereafter, these the initial burden of demonstrating the absence of a plaintiffs will be referred to collectively as Deja Vu. "genuine issue of material fact for trial." Anderson v. Plaintiff Fantasyland Video, Inc. ("Fantasyland") op- Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. erates a business at 1157 Sweetwater Road in the 2505, 91 L.Ed.2d 202 (1986). A fact is material if it Spring Valley area of San Diego County, which in- could affect the outcome of the suit under the govern- cludes an "Adult Arcade/Peep Show," an "Adult ing substantive law. Id. at 248, 106 S.Ct. 2505. A dis- Bookstore," an "Adult Novelty Store," and an "Adult pute about a material fact is genuine "if the evidence Video Store." (Jt. Stmnt of Facts, 4.) is such that a reasonable jury could return a verdict for the nonmoving party." Id. In their complaints, plaintiffs seek a declaration the amendments to local ordinances which affect either "When the party moving for summary judgment the location or the activities conducted by their busi- would bear the burden of proof at trial, it must come nesses violate their right to free speech provisions of forward with evidence which would entitle it to a dir- the First Amendment. In addition, they seek an in- ected verdict if the evidence went uncontroverted at junction prohibiting the enforcement of the amend- trial. In such a case, the moving party has the initial ments against them. Deja Vu also argues the amend- burden of establishing the absence of a genuine issue ments violate the California Constitution, and seeks of fact on each issue material to its case. Once the damages arising out of the County's threat to enforce moving party comes forward with sufficient evid- the amendments. ence, the burden then moves to the opposing party, who must present significant probative evidence Although they filed a Joint Motion for Summary tending to support its claim or defense." C.A.R. Judgment, each of the plaintiffs challenges only those Transp. Brokerage Co., Inc. v. Darden Restaurants, portions of the amendments affecting their particular Inc., 213 F.3d 474, 480 (9th Cir.2000) (citations businesses. Plaintiffs' Joint Motion seeks summary omitted). judgment "in the form of an order enjoining the County from enforcing" the ordinances as amended In contrast, when the nonmoving party bears the bur- because they are unconstitutional. The County's Mo- den of proving the claim or defense, the moving party tion seeks summary judgment in its favor on the can meet its burden by pointing out the absence of
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evidence from the nonmoving party. The moving 1132, 1136 (9th Cir.2001). party need not disprove the other party's case. See Celotex, 477 U.S. at 325, 106 S.Ct. 2548; see also When proper grounds for granting summary judg- Garneau v. City of Seattle, 147 F.3d 802, 807 (9th ment have not been established, "[s]ummary adjudic- Cir.1998). ation may be appropriate on clearly defined, distinct issues." *1103 FMC Corp. v. Vendo Co., 196 If the movant meets his burden, the burden shifts to F.Supp.2d 1023, 1029 (E.D.Cal.2002) (citing Robi v. the nonmovant to show summary adjudication is not Five Platters, Inc., 918 F.2d 1439 (9th Cir.1990)). appropriate. Celotex, 477 U.S. at 317, 324, 106 S.Ct. "An order under Rule 56(d) narrows the issues and 2548. The nonmovant does not meet this burden by enables the parties to recognize more fully their showing "some metaphysical doubt as to material rights, yet it permits the court to retain full power to facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Ra- completely adjudicate all aspects of the case when dio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 the proper time arrives." FMC Corp., 196 F.Supp.2d L.Ed.2d 538 (1986). The "mere scintilla of evidence at 1029-30 (citing 10B Wright & Miller, Federal in support of the nonmoving party's position is not Practice and Procedure (3d ed.1998), § 2737 at 316- sufficient." Anderson, 477 U.S. at 252, 106 S.Ct. 18). Specifically, Rule 56(d) empowers the court to 2505. Accordingly, the nonmoving party cannot op- "ascertain what material facts exist without substan- pose a properly supported summary adjudication mo- tial controversy and what material facts are actually tion by "rest[ing] on mere allegations or denials in his and in good faith controverted" and to "mak[e] an or- pleadings." Id. at 256, 106 S.Ct. 2505. The non- der specifying the facts that appear without substan- movant must go beyond the pleadings to designate tial controversy, and direct[ ] such further proceed- specific facts showing there are genuine factual is- ings in the action as are just." sues which "can be resolved only by a finder of fact because they may reasonably be resolved in favor of II. Summary of Applicable First Amendment Prin- either party." Id. at 250, 106 S.Ct. 2505. ciples and Burdens of Proof
In considering the motion, the nonmovant's evidence The parties dispute the legal standard and burdens of is to be believed and all justifiable inferences are to proof applicable to time, place, and manner restric- be drawn in his favor. Anderson, 477 U.S. at 255, 106 tions regulating adult entertainment businesses after S.Ct. 2505. Determinations regarding credibility, the City of Los Angeles v. Alameda Books, Inc., 535 U.S. weighing of evidence, and the drawing of legitimate 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). Since inferences are jury functions, and are not appropriate this standard applies to many issues raised by the for resolution by the court on a summary judgment cross-motions, the Court addresses it in detail below. motion. Id. [1][2] The general rule is "[l]aws designed or inten- In this case, the parties filed cross-motions regarding ded to suppress or restrict the expression of specific some of the same causes of action. As discussed be- speakers contradict basic First Amendment prin- low, the County bears the burden of proof at trial ciples." United States v. Playboy Entm't Group, 529 with respect to some issues raised by the cross- U.S. 803, 812, 120 S.Ct. 1878, 146 L.Ed.2d 865 motions; with respect to other issues, the burden is on (2000). "In general, where a plaintiff claims suppres- plaintiffs. The mere fact the parties filed cross-mo- sion of speech under the First Amendment, the tions "does not necessarily mean there are no dis- plaintiff bears the initial burden of proving that puted issues of material fact and does not necessarily speech was restricted by the governmental action in permit the judge to render judgment in favor of one question." Lim v. City of Long Beach, 217 F.3d 1050, side or the other." Starsky v. Williams, 512 F.2d 109, 1054 n. 4 (9th Cir.2000). It is beyond question sexu- 112 (9th Cir.1975). "[E]ach motion must be con- ally-oriented speech enjoys some protection under sidered on its own merits." Fair Hous. Council of the free speech provisions of the First Amendment. Riverside County, Inc. v. Riverside Two, 249 F.3d Playboy, 529 U.S. at 812-17, 120 S.Ct. 1878. Al-
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though neither party expressly discusses the issue content of the speech if the "predominate intent" be- whether the County's amendments restrict protected hind the restriction is not to suppress the speech but speech; the undisputed underlying premise of their to "serve a substantial government interest," such as motions is that they do. preventing crime or combating "the undesirable sec- ondary effects" of businesses which "purvey sexually "The burden then shifts to the defendant government- explicit materials." Renton, 475 U.S. at 48-49, 106 al entity to prove that the restriction in question is S.Ct. 925. If so justified, restrictions which specific- constitutional." Lim, 217 F.3d at 1054 n. 4. The gov- ally target or treat adult businesses differently from ernment cannot ban sexually-oriented speech alto- other types of businesses can be content-neural. Id. at gether but can place restrictions on it so long as the 47-48, 106 S.Ct. 925. restrictions satisfy one of two standards. The purpose or justification behind the law in question is the key Second, the restriction must be "narrowly tailored" to to determining which of the two standards applies. "serve a substantial government interest." Renton, 475 U.S. at 50-52, 106 S.Ct. 925. In Renton, for ex- [3] If the law is designed to have a direct impact by ample, a zoning ordinance, which required adult restricting speech because of the content of the movie theaters to be located at least 1,000 feet from speech and because of the effect the speech may have residential zones, churches, parks, and schools, was on its listeners, the law is referred to as a content- held narrowly tailored and constitutional. Id. at 43, based restriction, and the government bears an espe- 106 S.Ct. 925. The ordinance was considered "nar- cially heavy burden to overcome a First Amendment rowly tailored" because it did not apply to all theaters challenge. Playboy, 529 U.S. at 812-17, 120 S.Ct. but was designed "to affect only that category of 1878. A content-based speech restriction can survive theaters shown to produce the unwanted secondary a First Amendment challenge only if "it satisfies effects." Id. at 52, 106 S.Ct. 925. And this form of se- strict scrutiny," which requires the government not lectivity is constitutionally permissible; a time, place, only to identify and establish a compelling interest and manner restriction affecting protected speech can but also to explain why a less restrictive provision be "under-inclusive." Id. In other words, the govern- would not be as effective. Id. at 813, 817, 120 S.Ct. ment does not have to attempt to address all of its in- 1878. terests at one time. Id. at 52-53, 106 S.Ct. 925. The location restriction in Renton only applied to adult [4] On the other hand, if the law is content-neutral, theaters and not to other types of adult businesses. and its restrictions on sexually-oriented speech are This was and is permissible because the government primarily justified not by the concern for the effect of "must be allowed a reasonable opportunity to experi- the subject matter on listeners, but by reducing negat- ment with solutions" and can, for example, choose to ive secondary effects associated with the speech, it is single out and place limitations on "one particular subject to the intermediate level of scrutiny, which is kind of adult business." Id. (internal quotation marks highly deferential to the government. *1104City of and citation omitted). Furthermore, the government Renton v. Playtime Theatres, Inc., 475 U.S. 41, has broad discretion in selecting a method "to further 46-49, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The its substantial interests." Id. at 52, 106 S.Ct. 925. It parties in this case do not dispute the intermediate may, for example, "regulate adult theaters by dispers- scrutiny, rather than strict scrutiny, applies. ing them" or "by effectively concentrating them" in [5] Content-neutral time, place, and manner restric- the same area. Id. tions are constitutional under intermediate scrutiny Third, the restriction must allow "for reasonable al- even if they restrain speech, so long as they meet ternative avenues of communication." Renton, 475 three requirements. First, the restriction must be "con- U.S. at 50, 52, 106 S.Ct. 925. The "overriding con- tent-neutral." This means the restriction can be justi- cern is that a city cannot 'effectively deny adult busi- fied without reference to the content of the speech. A nesses a reasonable opportunity to open and operate restriction can be justified without reference to the within the city.' " Diamond v. City of Taft, 215 F.3d
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1052, 1056 (9th Cir.2000) (quoting Renton, 475 U.S. in Renton. at 54, 106 S.Ct. 925) (internal alterations omitted). An adult business is given a reasonable opportunity Plaintiffs' argument is based on a misreading of to relocate, if the potential relocation sites "may be Justice Kennedy's concurring opinion in Alameda considered part of an actual business real estate mar- Books. Although Justice Kennedy's concurrence ket," and if "there are an adequate number of poten- "may be regarded as the controlling opinion," be- tial relocation sites for already existing businesses." cause there was no majority opinion, it did not work a Topanga Press, Inc. v. City of Los Angeles, 989 F.2d fundamental shift in the Renton analysis. See Ctr. for 1524, 1530 (9th Cir.1993). "That respondents must Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, fend for themselves in the real estate market, on an 1161-62 (9th Cir.2003) (citing Marks v. United equal footing with other prospective purchasers and States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d lessees, does not give rise to a First Amendment viol- 260 (1977) ("When a fragmented Court decides a ation." Renton, 475 U.S. at 54, 106 S.Ct. 925. case and no single rationale explaining the result en- joys the assent of five Justices, the holding of the [6] Although the burden of proof with respect to Court may be viewed as that position taken by those these requirements is on the government, the burden Members who concurred in the judgment on the nar- is not difficult to meet. See, e.g., *1105World Wide rowest grounds.")). Justice Kennedy disavowed any Video, Inc. v. City of Spokane, 368 F.3d 1186, 1196 interpretation which would fundamentally change the (9th Cir.2004), 2004 U.S.App.Lexis 10443, 2005 WL Renton standard. Alameda Books, 535 U.S. at 448, 1429810, 2004 U.S.App. LEXIS 14381 and 2005 WL 122 S.Ct. 1728 (Kennedy, J., concurring) ("the cent- 1429810, 2004 U.S.App. LEXIS 18927 (referring to ral holding of Renton is sound"). He agreed with the the standard set forth in Renton and Alameda Books plurality laws "designed to decrease secondary ef- as "very little evidence standard"). The government is fects and not speech should be subject to intermediate not required to meet "an unnecessarily rigid burden rather than strict scrutiny." Id. The plurality con- of proof" to justify the restriction and may rely on sidered his opinion "simply a reformulation of the re- general experiences, findings, and studies completed quirement that an ordinance warrants intermediate by other local governments, including those reflected scrutiny only if it is a time, place, and manner regula- in judicial opinions: tion and not a ban." Id. at 443, 122 S.Ct. 1728. Ac- [The government] was entitled to rely on the exper- cordingly, Justice Kennedy's concurring opinion was iences of ... other cities, and in particular on the "de- not "meant to precipitate a sea change in this particu- tailed findings" summarized in [a judicial] opinion, lar comer of First Amendment law," as suggested by in enacting its adult theater zoning ordinance. The plaintiffs. See Ctr. for Fair Pub. Policy, 336 F.3d at First Amendment does not require a city, before 1162. enacting such an ordinance, to conduct new studies or produce evidence independent of that already In Alameda Books, the Supreme Court granted certi- generated by other cities, so long as whatever evid- orari to "clarify the standard for determining whether ence the city relies upon is reasonably believed to an ordinance serves a substantial government interest be relevant to the problem that the city addresses. under Renton." Alameda Books, 535 U.S. at 433, 122 Renton, 475 U.S. at 50, 51-52, 106 S.Ct. 925: see S.Ct. 1728. The plurality opinion noted the Renton also City of Erie v. Pap's A.M., 529 U.S. 277, 296-97, standard is not intended to mean a government "can 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (reliance on get away with shoddy data or reasoning." Id. at 438, judicial opinions discussing secondary effects of sim- 122 S.Ct. 1728. The focus of many of plaintiffs' argu- ilar activities or establishments is reasonable). ments in this case is the reference to "shoddy data"--they argue the reports and other evidence re- Plaintiffs believe the highly deferential standard set lied on by the County in amending its ordinances are forth in Renton was modified in their favor by "shoddy" and do not support the County's *1106 ra- Alameda Books. They argue the government is no tionale for the new restrictions on their businesses. In longer entitled to the "extreme deference" articulated addition, Alameda Books set forth a shifting burden
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of proof: County moves for summary judgment on plaintiffs' The [government's] evidence must fairly support hours-of-operation claim, and all plaintiffs cross- the [government's] rationale for its ordinance. If move for summary judgment on this claim. plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the [government's] It is undisputed intermediate scrutiny applies to the evidence does not support its rationale or by fur- hours-of-operation provision. Accordingly, nishing evidence that disputes the [government's] [t]he familiar three-part analytical framework es- factual findings, the [government] meets the stand- tablished in Renton applies. First, we must determ- ard set forth in Renton. If plaintiffs succeed in cast- ine whether the regulation is a complete ban on ing doubt on a [government's] rationale in either protected expression. Second, we must determine manner, the burden shifts back to the [government] whether the county's purpose in enacting the provi- to supplement the record with evidence renewing sion is the amelioration of secondary effects. If so, support for a theory that justifies its ordinance. it is subject to intermediate scrutiny, and we must Id. at 438-39, 122 S.Ct. 1728. In this regard, plaintiffs ask whether the provision is designed to serve a argue their evidence is at the very least sufficient to substantial government interest, and whether reas- "cast direct doubt" on the County's rationale for the onable alternative avenues of communication re- amendments, thereby shifting the burden to the main available. County to supplement the record. Dream Palace v. County of Maricopa, 384 F.3d 990, 1013 (9th Cir.2004) (internal citations omitted). Plaintiffs interpretation of Alameda Books as raising Plaintiffs do not dispute the hours-of-operation re- the government's evidentiary bar is unsupported by striction is content-neutral. Instead, they challenge its holding, and was expressly rejected by the plural- whether the concerns the County aims to address ity and Justice Kennedy's concurrence, which noted constitute a substantial government interest, and "very little evidence is required" for the government whether the restriction leaves open reasonable altern- to meet its burden. Alameda Books, 535 U.S. at 451, ative avenues of communication. Plaintiffs contend 122 S.Ct. 1728. Given the low level of evidence re- the County's evidence is insufficient to demonstrate a quired for the government to properly support a con- connection between the new provision and ameliora- tent-neutral ordinance, and the high level of defer- tion of negative secondary effects of adult entertain- ence it is afforded, the plaintiff's burden to "cast dir- ment businesses. ect doubt" on the government's rationale is very high. See World Wide Video, 368 F.3d at 1195-96; Ctr. for *1107 The County maintains the hours-of-operation Fair Pub. Policy, 336 F.3d at 1168. restriction was intended to reduce negative secondary effects of excessive noise, traffic, disorderly conduct III. Hours-of-Operation Restriction and crime during late night hours. In enacting the re- striction, the County relied on evidence including A. The First Amendment Claim twenty-eight studies from other jurisdictions regard- ing secondary effects of adult entertainment busi- [7] In their respective operative complaints, all nesses, such as prostitution, public sexual activity, plaintiffs challenge on First Amendment grounds the noise and unclean conditions (LR, at 443-1718, new hours-of-operation restriction, which states as 1752-1833); experiences of other municipalities as follows: reported in several judicial opinions (LR, at 6-17, It shall be unlawful for any owner, operator, man- 141-42, 1719-47); and local public testimony by fif- ager or employee of an adult entertainment estab- teen witnesses (LR, at 1906 et seq.). [FN2] This re- lishment to allow such establishment to remain cord "compares favorably to the record found to pass open for business between the hours of 2:00 a.m. muster" in Center for Fair Public Policy and Dream and 6:00 a.m. of any day excepting herefrom an Palace. See Dream Palace, 384 F.3d at 1015. The adult hotel/motel. type of evidence considered by the County has been (LR, at 154 [Ordinance No. 9479, § 21.1809].) The held "reasonable and relevant" in other cases. Id.
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(quoting Ctr. for Fair Public Policy, 336 F.3d at Dr. McCleary testified "late-night crime is independ- 1168). ent of adult entertainment businesses and rather de- rives from alcoholic beverage establishments and FN2. The County also indicated a willing- their patrons." (Pls.' Joint Reply, at 2.) Plaintiffs ar- ness to supply the Court with additional gue Dr. McCleary conceded there is no connection studies and expert declarations, if the Court between late night crime and adult entertainment finds plaintiffs cast direct doubt on the businesses or their patrons. (Id.) The Court has re- County's rationale. (Def.'s Opp'n, at 7.) viewed the entirety of Dr. McCleary's testimony sub- mitted by both sides (Bunton Reply Decl., Ex. 18; Furthermore, the County argues Center for Fair Pub- Manicom Opp'n Decl., Ex. 3), and finds it does not lic Policy bars plaintiffs' claim as a matter of law be- support plaintiffs' argument. Furthermore, in the con- cause it rejected a First Amendment challenge to a text of all the secondary effects the County sought to similar hours-of-operation restriction. Although Cen- address, plaintiffs' argument, even if believed, is in- ter for Fair Public Policy established a general pro- sufficient as a matter of law. position hours-of-operation restrictions may pass muster under the First Amendment, this does not re- *1108 Dr. McCleary testified there would still be an lieve the Court of the duty to put the County to its increase in crime "independent of any adult busi- proof in this case. See Dream Palace, 384 F.3d at nesses" and even if all businesses were closed from 1012. 2:00 a.m. to 6:00 a.m. because "[c]riminals often op- erate during late night, early morning hours when Plaintiffs do not contend the County failed to satisfy witnesses and police are less likely to be present." its initial burden of producing evidence which fairly (Bunton Reply Decl., Ex. 18, at 46-47.) However, he supports the amendments. Instead, they argue their also testified businesses open between 2:00 a.m. and contrary evidence "cast[s] ample doubt on the 6:00 a.m. are a "focus point for noise" because bar County's proffered justification for its legislation," patrons tend to look for another place to go after the shifts the burden to the County to supplement the re- bars close at 1:00 a.m., and bar patrons who have cord with further justification, and raises a genuine consumed alcoholic beverages have been known to issue of material fact sufficient to preclude summary congregate outside adult businesses, resulting in judgment for the County. (Pls.' Joint Mot., at 1-3.) By noise complaints. (Id. at 33-34.) He indicated the presenting their own evidence, plaintiffs attempt to hours restriction is justifiable because police re- distinguish this case from Center for Fair Public sources are very strained during these hours, which Policy. results in added risks to public safety. (Id. at 41 et Specifically, plaintiffs mount a two-pronged attack seq.) Furthermore, if fewer people are "out and on the County's evidence. First, they attempt to about" during the late night hours because businesses demonstrate the County's evidence does not support are closed, it will be more difficult for "predatory its rationale by pointing to the testimony of the criminals" to find victims, resulting in a reduction in County's own expert, Dr. Richard McCleary. See crime. (Id. at 46-47.) Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728 Even if the Court accepted plaintiffs' interpretation of (plurality opinion). Second, plaintiffs furnish evid- Dr. McCleary's testimony to suggest late night crime ence, a report and empirical studies of their expert is independent of adult entertainment businesses, it is Dr. Daniel Linz, which they contend disputes the insufficient to cast direct doubt on the County's evid- County's evidence. See id. As discussed below, ence. To raise a genuine issue of material fact on neither prong is sufficient as a matter of law to cast summary judgment, a fact is material if it could affect direct doubt on the County's evidence, raise a genuine the outcome of the suit under the governing substant- issue of material fact in opposition to the County's ive law. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. summary judgment motion, or meet plaintiffs' burden Under Ninth Circuit law interpreting and applying the as the moving parties on their own cross-motion. burden-shifting standard articulated in Alameda
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Books, plaintiffs must effectively controvert much, if Town of Vernon, 353 F.3d 171 (2nd Cir.2003); not all, of the County's evidence, leaving less than Hodgkins v. Peterson, 2004 U.S. Dist. LEXIS 16359 "some evidence" on which the County could reason- (S.D.Ind.); J.L. Spoons, Inc. v. Morckel, 314 ably rely for the ordinance. World Wide Video, 368 F.Supp.2d 746 (N.D.Ohio 2004). These cases, F.3d at 1195-96 (affirming order granting the govern- however, are distinguishable. Ramos and Hodgkins ment's motion for summary judgment). As in World did not involve adult entertainment businesses. They Wide Video, plaintiffs' argument here does not effect- addressed juvenile curfew ordinances, and were ana- ively controvert much of the County's evidence be- lyzed under a different legal standard. Ramos, 353 cause the County relied on a voluminous legislative F.3d at 176-84 (applying equal protection intermedi- record, including numerous studies conducted by oth- ate scrutiny to a curfew restriction on to minors' right er municipalities, judicial opinions discussing similar to intrastate travel); Hodgkins, 2004 U.S. Dist. LEX- secondary effects and public testimony, which IS 16359 (applying strict scrutiny to parental rights plaintiffs do not address. Furthermore, plaintiffs' ar- issue). Although J.L. Spoons involved an adult enter- gument is targeted only toward evidentiary support tainment ordinance, the plaintiffs presented a facial addressing late night crime, and does not address the overbreadth challenge, and the court did not apply other targeted secondary effects such as late night Alameda Books but Triplett Grille v. City of Akron, noise, traffic and disorderly conduct. The County 40 F.3d 129, 132 (6th Cir.1994). None of these cases only needs "some evidence" to support its ordinance. is therefore helpful in analyzing whether plaintiffs Id. Accordingly, plaintiffs' first argument fails as a cast direct doubt on the County's evidence following matter of law to cast direct doubt on the County's Alameda Books. evidence. On the other hand, Dr. Linz' approach was unsuccess- Plaintiffs' second argument is based on Dr. Linz' re- ful in pertinent cases. See Pap's, 529 U.S. at 300, 120 port. Dr. Linz opined the reports cited by the County S.Ct. 1382; Alameda Books, 535 U.S. at 439, 122 on the negative secondary effects of sexually-ori- S.Ct. 1728 (plurality opinion); Nite Moves Entm't. ented businesses are unreliable because their method- Inc. v. City of Boise, 153 F.Supp.2d 1198, 1208-09 ology and empirical assumptions are flawed. He par- (D.Idaho 2001). In Pap's, amicus curiae relied on Dr. ticipated in a number of other relevant studies, which Linz' study, and apparently suggested when second- he claims do not suffer from "methodological flaws," ary effects are amenable to empirical treatment, the and show sexually-oriented businesses are not caus- government's non-empirical evidence should be dis- ally related to crime. (Linz Decl., at 9.) In addition, counted, and an empirical analysis should be re- Dr. Linz conducted "an empirical study" which ex- quired. 529 U.S. at 314-15 n. 3, 120 S.Ct. 1382 amined "whether there is a greater incidence of crime (Souter, J., dissenting). The majority opinion rejected in the vicinity of peep show establishments than in this idea. Id. at 300, 120 S.Ct. 1382. As in this case, comparable control areas, and whether any secondary in Alameda Books, amicus curiae criticized the stud- crime effects of peep show establishments in San ies relied upon by the City of Los Angeles. 535 U.S. Diego are disproportionately greater between the at 453-54 n. 1, 122 S.Ct. 1728 (Souter, J., dissenting). hours of 2 a.m. and 6 a.m." (Id. at 11.) He also com- Again, the plurality rejected the idea and noted the pleted "an empirical study of criminal activity sur- governments have never been required to demon- rounding adult businesses in San Diego County." (Id. strate with empirical data their ordinances will suc- at 12.) Based on his own studies, Dr. Linz opined cessfully lower crime. Id. at 439, 122 S.Ct. 1728. there is "no evidence that the adult businesses ex- amined in the study are associated in any way with Plaintiffs' argument is similar to the one considered the clustering of crimes against persons...." (Id.) and rejected by the Seventh Circuit in G.M. Enter- prises v. Town of St. Joseph, 350 F.3d 631 (7th *1109 Plaintiffs point out Dr. Linz' approach was ac- Cir.2003). Along with other evidence contrary to the cepted by other courts in cases involving successful government's position, those challenging the ordin- challenges to municipal ordinances. See Ramos v. ance submitted a study and declaration by Dr. Linz
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that attacked the methodology employed in the stud- McCleary's testimony. It addresses only the reports ies relied upon by the government. Id. at 635-36. The from other municipalities, but does not address the Seventh Circuit concluded this was just "some evid- judicial opinions and public testimony which the ence that might arguably undermine the County also considered. In addition, it is directed [government's] inference of the correlation of adult only toward late night crime, and does not address entertainment and adverse secondary effects...." Id. at the remaining secondary effects the County targeted. 639. It concluded "some evidence" was not enough: Although this evidence shows that the As plaintiffs' evidence is insufficient as a matter of [government] might have reached a different and law to cast direct doubt on the County's evidence, equally reasonable conclusion regarding the rela- plaintiffs fall short of meeting their burden to raise a tionship between adverse secondary effects and genuine issue of material fact in opposition to the sexually oriented businesses, it is not sufficient to County's summary judgment motion with respect to vitiate the result reached in the [government's] le- the new hours-of-operation restriction. A fortiori, gislative process. [¶] Alameda Books does not re- plaintiffs also fail to meet their burden as the moving quire a court to re-weigh the evidence considered parties on their cross-motion. Therefore, the County's by a legislative body, nor does it empower a court motion for summary judgment of this issue is gran- to substitute its judgment in regards to whether a ted, and plaintiff's cross-motion is denied. regulation will best serve a community, so long as B. The California Constitution Claim the regulatory body has satisfied the Renton re- quirement that it consider evidence "reasonably be- [8] Plaintiffs move for summary judgment of their lieved to be relevant to the problem" addressed. hours-of-operation restriction claim to the extent it is Id. at 639-40 (quoting Renton, 475 U.S. at 51-52, 106 based on the California Constitution, and the County S.Ct. 925); see also Alameda Books, 535 U.S. at 440, counters on the same claim. Relying on the California 122 S.Ct. 1728 (plurality opinion) (acknowledging Supreme Court's decision in People v. Glaze, 27 the local *1110 legislative body "is in a better posi- Cal.3d 841, 166 Cal.Rptr. 859, 614 P.2d 291 (1980), tion than the Judiciary to gather and evaluate data on plaintiffs argue the new hours-of-operation restriction local problems"), 445 (Kennedy, J., concurring) ("as violates Article I, Section 2, of the California Consti- a general matter, courts should not be in the business tution. The County argues the pertinent portion of of second-guessing fact-bound empirical assessments Glaze is no longer good law, and the ordinance at is- of city planners.... [t]he [local legislative body] sue therein is distinguishable in several material re- knows the streets of [the city] better than we do"). spects. A review of the cases cited by the parties re- veals the County is correct. The Seventh Circuit's analysis in G.M. Enterprises is consistent with the Ninth Circuit's analysis in World In People v. Glaze, the California Supreme Court Wide Video. As discussed above, to successfully cast held invalid under the California Constitution an or- direct doubt on the County's evidence, plaintiffs bear dinance which required picture arcades to be closed a heavy burden of effectively rebutting more than just between 2:00 a.m. and 9:00 a.m. 27 Cal.3d at 843-44, some of the categories of permissible evidence relied 849, 166 Cal.Rptr. 859, 614 P.2d 291 (1980). The upon by the County with respect to each targeted sec- purpose of the hours-of-operation restriction was to ondary effects. See World Wide Video, 368 F.3d at "prevent masturbation during those hours when law 1195-96. So long as some evidence remains upon enforcement problems are greatest." Id. at 847, 166 which the County reasonably relied, plaintiffs fail to Cal.Rptr. 859, 614 P.2d 291. The court found: cast direct doubt. See id. Although Dr. Linz' study [C]rime in the streets could be reduced by prohibit- and opinion purport to contradict some of the ing all persons from going out in public. However, County's secondary effect evidence, plaintiffs' argu- when fundamental liberties are at stake, the test in ment in this regard suffers from some of the same a free society is whether there are "less drastic fatal infirmities as their first argument based on Dr. means" available to accomplish the government's
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purpose .... The government may deal directly with constitutional standards, plaintiffs' summary judg- masturbation in public picture arcades by persons ment motion as to the same claim under the Califor- who know or should know of the presence of oth- nia Constitution is denied, and the County's cross- ers who may be offended by such conduct by ar- motion is granted. resting and prosecuting *1111 them .... The record before this court fails to show either that criminal IV. Interior Configuration (Open-Booth) Require- activity is particularly acute at picture arcades or ment that it is prevalent between the hours of 2 a.m. and Plaintiff Fantasyland operates an "adult bookstore 9 a.m. and arcade." (Andrus Decl., at 2.) The rear portion of Id. at 847-48, 166 Cal.Rptr. 859, 614 P.2d 291. the store contains peep show booths (i.e., "small, The Glaze ordinance is distinguishable. First, pre- private viewing areas, each of which has a currency- venting masturbation was the only reason for the operated device that facilitates the viewing of adult hours-of-operation restriction, while here the County motion pictures"). (Id. at 3.) The peep show booths has different and multiple reasons for its restriction. are "designed to accommodate only one customer at a Second, the Glaze ordinance applied to all arcades time" and currently have "lockable doors on them." and not just to those where masturbation was likely to (Id. at 5.) be a problem, while the County's ordinance applies [9] Fantasyland's complaint challenges two specific only to adult entertainment businesses. Last, the requirements of the amended ordinance, which apply Glaze ordinance required arcades to be closed three to the peep show booths. In pertinent part, the amend- more hours per day than the County's ordinance. ment prohibits any "door, curtain, or obstruction of More importantly, however, Glaze is not controlling any kind [to] be installed within the entrance to a because it applied a higher standard than necessary: peep show booth." (LR, at 157 [Ordinance No. 9479, strict, rather than intermediate, scrutiny. Id. at § 21.1816(2) ].) Another challenged portion of the 848-49, 166 Cal.Rptr. 859, 614 P.2d 291. As already amendment states as follows: noted, the United States Supreme Court established No person shall operate a peep show unless a man- in Renton that intermediate level of scrutiny should ager is on duty to ensure its lawful operation and is be applied when analyzing restrictions on sexually- located at a manager's station which has an unob- oriented speech. 475 U.S. at 46-49, 106 S.Ct. 925. structed view of the entrance to each peep show Following Renton, the California Supreme Court held booth. the time, place, and manner test under the free speech (Id. at 158 [§ 21.1819].) The County moves for sum- provisions of the California Constitution are analyzed mary judgment on Fantasyland's First Amendment under federal constitutional standards: claim that these provisions, referred to jointly as [O]ur formulation of the time, place, and manner "open-booth *1112 requirement," violate the First test was fashioned from a long line of United States Amendment. Fantasyland cross-moves for summary Supreme Court cases, and ... analysis of speech judgment on the same claims. regulation under article I, section 2(a), employs Fantasyland acknowledges "regulations comparable time, place, and manner restrictions measured by to this one have been upheld in this circuit." (Pls.' federal constitutional standards. The high court Joint Mot., at 10.) However, it argues these decisions continues to employ the same formulation set out are not necessarily controlling because of the Su- above in its time, place, and manner inquiry. preme Court's more recent decision in Alameda Los Angeles Alliance for Survival v. City of Los Books. Based in large part on Alameda Books, Fanta- Angeles, 22 Cal.4th 352, 364 n. 7, 93 Cal.Rptr.2d 1, syland contends it is entitled to summary judgment in 993 P.2d 334 (2000) (internal quotation marks, cita- its favor on this issue for three main reasons. First, it tions and alterations omitted). Given these develop- argues the open-booth requirement unconstitutionally ments in California law, and the Court's finding the reduces the secondary effects by reducing or chilling County's hours-of-operation restriction meets federal
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protected speech. Second, it contends the County re- their operation at that time. Ctr. for Fair Pub. Policy, lied on "shoddy" evidence to support its rationale for 336 F.3d at 1162. The court disagreed because ac- the open-booth requirement, and Fantasyland's evid- cepting the plaintiff's argument "cannot be squared ence casts direct doubt on this rationale. Third, Fanta- with [Justice Kennedy's] insistence that the central syland claims the open-booth requirement is not nar- holding of Renton remains sound." Id. (internal quo- rowly tailored. tation marks and citations omitted).
A. Rationale for the Amendment This is apparent from the example Justice Kennedy offered to clarify his point: Fantasyland argues the open-booth requirement will If two adult businesses are under the same roof, address the secondary effects targeted by the and ordinance requiring them to separate will have County's amendment by significantly and impermiss- one of two results: One business will either move ibly reducing or chilling speech because most cus- elsewhere or close. The city's premise cannot be tomers will not want to view adult movies inside the the latter. It is true that cutting adult speech in half booths when they no longer offer privacy. (Andrus would probably reduce secondary effects propor- Decl., at 5.) Fantasyland relies on Justice Kennedy's tionally. But ... a promised proportional reduction comment in his concurring opinion in Alameda does not suffice.... [¶] The premise ... must be that Books: "Though the inference may be inexorable that businesses ... will for the *1113 most part disperse a city could reduce secondary effects by reducing rather than shut down. speech, this is not a permissible strategy." 535 U.S. at Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728. Ac- 445, 122 S.Ct. 1728. cordingly, the proportionality inquiry goes to the government's premise or rationale for the ordinance, Justice Kennedy concurred in the judgment but filed which cannot be to reduce secondary effects by redu- a separate opinion in pertinent part because "the plur- cing speech. Id. at 449, 122 S.Ct. 1728 ("what pro- ality's application of Renton [to the facts of Alameda position does a city need to advance in order to sus- Books ] might constitute a subtle expansion, with tain a secondary-effects ordinance"), 451 ("[o]nly which [he did] not concur." Id. (Kennedy, J., concur- after identifying the proposition to be proved can we ring). He was concerned the analysis did not suffi- ask the second part of the question presented: is there ciently take into account the effect of the challenged sufficient evidence to support the proposition?"). ordinance on speech, i.e., the proportionality. At the Whether there is sufficient evidence to support the ra- outset, the government should advance some ra- tionale is a separate inquiry. Id. at 451, 122 S.Ct. tionale or basis for a belief "that its regulation has the 1728. purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech In the amended ordinance, the County stated its pur- substantially intact." Id. at 449, 122 S.Ct. 1728. pose as: It is the purpose of this ordinance to regulate adult As discussed above, to the extent Fantasyland inter- entertainment establishments in order to promote prets the concurring opinion as working a fundament- health, safety and general welfare of the citizens of al shift in the Renton analysis, it is mistaken. See the County, and to establish reasonable and uni- Alameda Books, 535 U.S. at 448, 122 S.Ct. 1728 form regulations to prevent the deleterious effects (Kennedy, J., concurring); Ctr. for Fair Pub. Policy, of adult entertainment establishments within the 336 F.3d at 1162. In Center for Fair Public Policy, County. The provisions of this ordinance have the Ninth Circuit rejected an argument similar to the neither the purpose nor effect of imposing a limita- one Fantasyland makes here. The plaintiffs argued an tion or restriction on the content or reasonable ac- hours-of-operation restriction reduced the secondary cess to any communicative materials, including effects simply by reducing speech because the pat- sexually oriented materials. rons prefer to frequent adult entertainment businesses (LR, at 140-41 [Ordinance No. 9479, § 21.1801(A) during late night hours, and the ordinance prohibited ].) With the open-booth requirement specifically, the
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County sought to prevent unlawful sexual activities "absolute bar to the *1114 market ..., it is irrelevant between patrons and the resulting spread of sexually- whether '[a regulation] will result in lost profits, high- transmitted diseases. (LR, at 499-503, 1277-78, 1310, er overhead costs, or even prove to be commercially 1313, 1316-17, 1541.) Nothing in the record, includ- unfeasible for an adult business.' " Id. at 666 ing Fantasyland's evidence, suggests the premise was (alteration in the original) (quoting Walnut Properties to preclude patrons from viewing peep shows. v. City of Whittier, 861 F.2d 1102, 1109 (9th Cir.1988)); see also Matney, 86 F.3d at 700. Accord- Fantasyland relies on the declaration of William H. ingly, Mr. Andrus' declaration is insufficient to raise Andrus, Vice President of Fantasyland and its parent a material issue of fact. See Anderson, 477 U.S. at company, who has been closely involved with the de- 248, 106 S.Ct. 2505. Based on the foregoing, Fanta- velopment and operation of at least fifty similar busi- syland's argument is unsupported by relevant evid- nesses in the United States. Mr. Andrus offered his ence and fails as a matter of law. observations based on extensive experience that a change from private to open viewing areas causes an B. Evidentiary Support for the Amendment immediate drop in the amount of viewing "typically to roughly 40% of what it was prior to the change," Fantasyland next argues the County lacks sufficient because "most customers disfavor viewing sexually evidence in support of its open-booth requirement. oriented motion pictures in an open setting." (Andrus The main purpose for the requirement is to prevent Decl., at 5.) Fantasyland argues Mr. Andrus' declara- unlawful sexual activities between patrons on the tion proves the open-booth requirement will signific- premises of adult arcades, and to prevent the resulting antly reduce speech. As discussed above, this is not spread of sexually-transmitted diseases. To support the relevant inquiry. The relevant inquiry is whether its rationale for the open-booth requirement, the reducing speech was the premise for the open-booth County cites to a number of studies and reports in the requirement. Mr. Andrus' declaration does not speak Legislative Record demonstrating the prevalence of to this inquiry. unlawful sexual activities between patrons inside the closed booths and "glory holes" [FN3] between the In any event, an open-booth requirement does not re- booths. (LR, at 499-503, 1277- 78, 1310, 1313, duce speech because it does not limit what movies 1316-17, 1541.) According to the County, these stud- can be shown, and does not preclude anyone from us- ies show unprotected sex is common in adult enter- ing the booths as a means for viewing movies- tainment establishments, which promotes the spread -patrons can continue to watch whatever movies they of sexually-transmitted diseases. (Def.'s Mot., at 22 n. want in the open booths. Ellwest Stereo Theatres. Inc. 15.) Fantasyland argues the County's evidence is v. Wenner, 681 F.2d 1243, 1247 (9th Cir.1982). Oth- shoddy because the proposition sexually-transmitted er circuits have also found open-booth requirements diseases could be transmitted by the semen left in the to be constitutional time, place, and manner restric- booths is not scientifically supported, and the County tions which do not substantially reduce speech. See, cited to no evidence criminal activity actually takes e.g., Pleasureland Museum, Inc. v. Beutter, 288 F.3d place in Fantasyland's booths. 988, (7th Cir.2002); Matney v. County of Kenosha, 86 F.3d 692, (7th Cir.1996); Bamon Corp. v. City of FN3. A "glory hole" is a hole between two Dayton, 923 F.2d 470, 473 (6th Cir.1991); Doe v. adjoining booths used to promote anonym- City of Minneapolis, 898 F.2d 612, 617 (8th ous sex. (LR, at 1310.) Cir.1990). Fantasyland believes the County's rationale for the [10] To the extent Fantasyland's argument is based on open-booth requirement is "the transmission of dis- the economic effect the open-booth requirement will ease with respect to residue from masturbation." (Pls.' have on its business, it is not constitutionally cogniz- Joint Mot., at 10.) Dr. John M. Goldenring, Fantasy- able. See Spokane Arcade, Inc. v. City of Spokane, 75 land's expert in public health and the transmission of F.3d 663, 665 (9th Cir.1996). As long as there is no diseases, including sexually-transmitted diseases, re-
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viewed the relevant portions of the Legislative Re- ent of that already generated by other cities, so long cord, and was not able "to find any support for the as whatever evidence [it] relies upon is reasonably proposition that any sexually transmitted disease believed to be relevant to the problem [it] addresses." could be transmitted absent sexual contact." See Renton, 475 U.S. at 51-52, 106 S.Ct. 925. In oth- (Goldenring Decl., at 7- 8.) According to Dr. Golden- er words, the County was and is entitled to rely on ring, absent direct sexual contact between the genitals the studies and reports of others which are included of one person and the genitals, anus or mouth of an- in the record before the Court, as well as on judicial other, "the likelihood of a [sexually transmitted dis- opinions, such as Spokane Arcade and Ellwest Ste- ease] being transmitted by bodily fluids, such as se- reo. Spokane Arcade and Ellwest Stereo reference men, urine or saliva existing on surfaces is minute, and rely upon evidence collected by other local gov- nearly zero." (Id. at 5.) "Other contagious diseases, ernments on the secondary effects associated with such as influenza, the common cold, and other vir- closed peep show or arcade booths. See, e.g., uses and bacterial infections are transmitted through Spokane Arcade, 75 F.3d at 664-65 (drug usage and saliva, but not semen or urine." (Id.) sexual conduct between patrons in the video booths, concluding open booths "would reduce the potential Dr. Goldenring's declaration is insufficient as a mat- for crime"); Ellwest Stereo, 681 F.2d at 1245 n. 1 ter of law to show the County relied on shoddy evid- ("[sex-related criminal activity] occurs with great fre- ence. See World Wide Video, 368 F.3d at 1195- 96. quency in arcades where movies are exhibited in en- Contrary to Fantasyland's assumption, the record in- closed booths"). The type of evidence considered by dicates the open-booth requirement is not intended to the County in enacting the open-booth requirement prevent the transmission of communicable diseases has been held "reasonable and relevant" in other through bodily fluids, such as semen, which could be cases. See, e.g., Dream Palace, 384 F.3d at 1015. In left by patrons on surfaces inside the booths. Rather, sum, Fantasyland's evidence is insufficient as a mat- the rationale is based on the finding "[s]exual acts, in- ter of law to cast direct doubt on the evidence sup- cluding masturbation and oral and anal sex, occur at porting the County's rationale for the open-booth re- unregulated adult entertainment establishments, espe- quirement. cially those which provide private or semi-private booths or cubicles for *1115 viewing films or videos C. Narrowly Tailored or live striptease and sex shows." (LR, at 142 [Ordinance No. 9479, § 21.1801(B)(3) ].) Further- Last, Fantasyland argues the open-booth requirement more, the open-booth requirement was intended to "re- is not narrowly tailored because there are more ef- duce criminal activity, including illegal public sexual fective and less drastic means to accomplish the activity and prostitution/pandering" as well as "the County's purported objectives. Fantasyland relies on spread of sexually transmitted diseases and other Mr. Andrus' declaration, which outlines a number of communicable diseases" which result from illegal ways to "combat sexual contacts between customers sexual contact. (DeWitt Decl., Ex. B, at 3; LR, at in the viewing areas." (Andrus Decl., at 5.) For ex- 142-43.) Fantasyland's first argument is therefore ample, Mr. Andrus suggests it would be effective to based on an erroneous premise. reduce the size of viewing areas so that only one per- son could fit in a booth and to modify the doors so [11] In addition, Fantasyland claims the County has that they do not reach the floor. He also opined open not cited any direct or specific evidence in the Legis- booths have "considerable drawbacks from the stand- lative Record to substantiate its assumption criminal point of avoiding sexual contact between customers" activity is actually taking place at Fantasyland or as a because open booths result of Fantasyland's business. However, the encourage[ ] interaction amongst customers who County is not required to do so. It may rely on find- are viewing motion pictures. When viewing areas ings in relevant case law, as well as the experiences are enclosed, customers are insulated from each of other local governments, and is not required "to other. When the viewing areas are open, the com- conduct new studies or produce evidence independ- bination of sexually explicit motion pictures and an
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open atmosphere can create a phenomenon, some- permit from the County, when it acquired its present times known as "cruising," where homosexual premises. Subsequently, the County amended the males meet, culminating in relatively anonymous adult entertainment ordinance to prohibit live nude sexual encounters after they leave the business. entertainment. (LR, at 155 [Ordinance No. 9479, § That results in sexual activity in the neighborhood 21.1812(a) ("It shall be a violation of this chapter for surrounding the business over which the business a patron, employee or any other person in an adult has no control. entertainment establishment, to knowingly or inten- (Andrus Decl., at 6.) tionally appear in a state of nudity regardless of whether such public nudity is expressive in nature.") [12] Fantasyland's argument--the County's chosen ].) The amended ordinance does not prohibit live means is not the best--is *1116 to no avail, however. semi-nude entertainment under conditions specified Under intermediate scrutiny, the government is not therein. (Id. [§ 21.1812(b) ].) Deja Vu claims prior to required to establish the means it has chosen is the the amendment, female performers did not have to least restrictive or the most effective for addressing a wear anything more than "pasties and a G-string." particular problem. A time, place, and manner restric- (Pls.' Joint Mot., at 12.) After the amendment, they tion is considered narrowly tailored if the government must wear more opaque clothing while performing, shows its chosen means "serve[s] a substantial gov- which Deja Vu refers to as "pasties and a G-string ernment interest," and affects only that category of plus." (Id.) businesses shown to produce the unwanted secondary effects. Renton, 475 U.S. at 50-52, 106 S.Ct. 925. 1. The First Amendment Claim Nor is the County required to show the open-booth requirement will be effective in combating the negat- [13] Deja Vu alleges the ordinance as amended viol- ive secondary effects. Local governments "must be ates the First Amendment because it is unjustified allowed a reasonable opportunity to experiment with based on the factual record and relevant Supreme solutions to admittedly serious problems." Id. at 52, Court case law. The County moves for summary 106 S.Ct. 925. judgment on Deja Vu's First Amendment claim re- garding the nudity ban, and Deja Vu cross-moves on The uncontradicted evidence in this case shows the the same claim. Specifically, Deja Vu contends the open-booth requirement is aimed at reducing unlaw- County lacked sufficient evidence in support of this ful sexual activities and in preventing the resulting amendment, and the amendment is not narrowly spread of sexually transmitted diseases. Fantasyland tailored. does not dispute these are substantial government in- terests. Furthermore, the County's regulation directly a. Evidentiary Support for the Amendment targets only that part of adult entertainment business Deja Vu argues the evidence the County relied on in which is known to "produce the unwanted secondary amending the ordinance is insufficient because no effects." See Renton, 475 U.S. at 52, 106 S.Ct. 925. evidence in the record addresses "secondary effects Fantasyland does not dispute this. Although Mr. An- attributable to non-nude dancing" (i.e., the secondary drus' declaration suggests the County could have effects associated with pasties and a G-string plus, chosen to address its substantial interests through oth- rather than just pasties and a G-string). (Pls.' Opp'n, er means, this is not material under the controlling at 14.) The County relied on the Legislative Record law. described above, which includes numerous studies V. Performance Restrictions from other jurisdictions, experiences of other muni- cipalities as reported in *1117 case law, and local A. Nudity Ban public testimony regarding secondary effects such as prostitution, public sexual activity, and narcotics traf- In its complaint, Deja Vu alleges it had planned to of- ficking. (See, e.g., LR, at 499-500, 1278, 1310, 1312, fer nude dancing, and had obtained the appropriate 1488-531, 1634-40.) Furthermore, the ordinance it-
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self cites relevant Supreme Court and Ninth Circuit U.S. at 289, 120 S.Ct. 1382. "[G]overnment restric- cases which discuss the secondary effects associated tions on public nudity ... should be evaluated under with nude dancing. (See LR, at 141 [Ordinance No. the framework set forth in O'Brien for content-neutral 9479, § 21.1801].) restrictions on symbolic speech." Pap's, 529 U.S. at 289, 120 S.Ct. 1382 (plurality opinion). The Renton Deja Vu does not offer any evidence of its own to factors applicable to time, place, and manner restric- cast direct doubt on the County's evidence, but relies tions and the O'Brien framework are "similar or exclusively on Dr. Linz' observation "[n]o study spe- identical." Colacurcio v. City of Kent, 163 F.3d 545, cifically deals with adverse secondary effects related 551 (9th Cir.1998) (citing Ward v. Rock Against Ra- to the presence of pasties and G-string establish- cism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d ments." (Linz Decl., at 5.) Essentially, Deja Vu ar- 661 (1989)). United States v. O'Brien held: gues the absence of this evidence in the record is suf- [A] government regulation is sufficiently justified ficient to show the County's evidence is shoddy. Deja if it is within the constitutional power of the gov- Vu's argument was rejected in Gammoh v. City of La ernment; if it furthers an important or substantial Habra, where the plaintiffs argued the government's governmental interest; if the governmental interest evidence was irrelevant to the ordinance imposing a is unrelated to the suppression of free expression; minimal distance between patrons and erotic dancers and if the incidental restriction on alleged First because "it does not measure the secondary effects of Amendment freedoms is no greater than is essential clothed performances." 395 F.3d 1114, 1127 (9th to the furtherance of that interest. Cir.2005). "No precedent requires the [government] 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 to obtain research targeting the exact activity that it (1968). Deja Vu argues the ordinance at issue is un- wishes to regulate: the [government] is only required constitutional because it does not satisfy the narrow to rely on evidence 'reasonably believed to be relev- tailoring requirement of the O'Brien framework. ant' to the problem being addressed." Id. (quoting Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728.) Contrary to Deja Vu's argument, case law finding The type of evidence considered by the County has pasties and a G-string to satisfy *1118 narrow tailor- been held "reasonable and relevant" in other cases. ing does not suggest any additional coverage require- See Dream Palace, 384 F.3d at 1015. Dr. Linz' obser- ment, no matter how slim, would be unconstitutional: vation is therefore insufficient as a matter of law to [T]he requirement that the dancers don pasties and cast doubt on the County's evidence or raise a genu- G-strings does not deprive the dance of whatever ine issue of material fact in opposition to the County's erotic message it conveys; it simply makes the motion. message slightly less graphic. ... [¶] ... [T]he gov- ernmental interest served by the text of the prohibi- b. Narrowly Tailored tion is societal disapproval of nudity in public places and among strangers. The statutory prohibi- Deja Vu next argues the amendment goes too far be- tion is not a means to some greater end, but an end cause under the Supreme Court precedent, pasties in itself. It is without cavil that the public inde- and a G-string is the maximum amount of clothing a cency statute is "narrowly tailored"; Indiana's re- government can require exotic dancers to wear quirement that the dancers wear at least pasties and "without running afoul of the federal right to freedom G-strings is modest, and the bare minimum neces- of expression." (Pls.' Joint Mot., at 13.) However, the sary to achieve the State's purpose. Court does not interpret the pertinent case law as Barnes, 501 U.S. at 571-72, 111 S.Ct. 2456. Simil- Deja Vu does. arly, the holding in Pap's does not support Deja Vu's [14] Nude dancing is "expressive conduct within the argument: outer perimeters of the First Amendment." Barnes v. The ordinance regulates conduct, and any incident- Glen Theatre, Inc., 501 U.S. 560, 565-66, 111 S.Ct. al impact on the expressive element of nude dan- 2456, 115 L.Ed.2d 504 (1991); see also Pap's, 529 cing is de minimis. The requirement that dancers
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wear pasties and G-strings is a minimal restriction covering less than one-third of the buttocks or one- in furtherance of the asserted government interests, fourth of the female breast," and expressly prohibited and the restriction leaves ample capacity to convey "the wearing of G-string, T-backs, dental floss, and the dancer's erotic message. thongs." Id. at 1273; see also id. at 1254 n. 2. Before Pap's, 529 U.S. at 301, 120 S.Ct. 1382. remanding for consideration whether this definition proscribes too much expression, the court found "it The relevant Supreme Court cases do not stand for difficult to conclude ... that preventing erotic dancers the proposition pasties and a G-string is the maxim- from wearing G-strings, thongs, pasties and the like um amount of clothing a government can require has only a 'de minimis' effect on the expressive com- exotic dancers to wear without offending the First ponent of erotic dancing." Id. at 1274. Since Peek- Amendment. Rather, these cases establish the gov- A-Boo involved a much more restrictive definition of ernment has a legitimate interest in placing restric- nudity than the definition at issue in this case, it is not tions on public nudity (i.e., the conduct element of helpful in answering the question whether the nude dancing), so long as those restrictions have only County's new definition is still an incidental or "min- a de minimis or minimal effect on a dancer's erotic imal restriction," which "leaves ample capacity to message. In sum, under Barnes and Pap's, the issue is convey the dancer's erotic message." whether the County's new requirement is still an in- cidental or "minimal restriction," which "leaves FN4. Since it does not appear Deja Vu in- ample capacity to convey the dancer's erotic mes- tends to offer alcohol in addition to nude en- sage." See Pap's, 529 U.S. at 301, 120 S.Ct. 1382 tertainment, the Court excludes from consid- (plurality opinion). eration the circuit court decisions cited by the County which are based on the combina- Deja Vu contends the amended ordinance imposes tion of nudity and alcohol. See, e.g., Ben's more than a minimal restriction on speech because it Bar, Inc. v. Village of Somerset, 316 F.3d requires entertainers to wear in addition to pasties 702, 706 n. 5, 727-28 (7th Cir.2003) ( also "a swimsuit bottom or shorts to opaquely cover "[p]rohibiting alcohol on the premises of her 'anal cleft or cleavage.' " (Pls.' Joint Opp'n, at 13.) adult entertainment establishments will un- Although this attire would not violate the amended questionably reduce the enhanced secondary ordinance, it is not required by it. Specifically, the effects resulting from the explosive combin- amended ordinance prohibits nudity, which is defined ation of alcohol consumption and nude or as semi-nude dancing"); Geaneas v. Willets, showing of the human male or female genitals, pu- 911 F.2d 579, 582-83 (11th Cir.1990) bic area, vulva, penis, anal cleft or cleavage with (district court did not err in analyzing a nud- less than a fully opaque covering or the showing of ity ban "in establishments dealing in alco- the female breast with less than a fully opaque cov- hol" under the Twenty-First Amendment, ering of any part of the nipple. which gives the states the broad authority to (LR, at 147 [Ordinance No. 9479, § 21.1802(G) ].) regulate alcohol sales, rather than the First Amendment, because of Supreme Court pre- The Ninth Circuit has not addressed whether this reg- cedent that the states' powers under the ulation falls short of O'Brien; however, other circuits Twenty-First Amendment "outweigh any have considered similar regulations. [FN4] Deja Vu first amendment interest in nude dancing"); relies *1119 on Peek-A-Boo Lounge of Bradenton, Grand Faloon Tavern, Inc. v. Wicker, 670 Inc. v. Manatee County, 337 F.3d 1251 (11th F.2d 943, 944, 946-51 (11th Cir.1982) Cir.2003), where the Court of Appeals reversed and (affirming the connection between nude and remanded an order granting the government's sum- semi-nude entertainment, alcohol consump- mary judgment motion. The ordinance at issue pro- tion, and criminal activity "justified the in- hibited nudity, which was defined more expansively cidental burdens on First Amendment rights than in Pap's "to encompass wearing any clothing
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created by the regulation of nude entertain- nudity ban, Deja Vu also contends it violates Article ment"). I, Section 2 of the California Constitution. While Deja *1120 Vu seeks summary adjudication of this Heideman v. South Salt Lake City, 348 F.3d 1182 issue in its favor, which the County opposes, the (10th Cir.2003), evaluated the constitutionality of a County does not raise this issue in its own cross- nudity ban similar to the one at issue here. Id. at 1186 motion for summary judgment. n. 4, 1199-1200. The ordinance in Heideman prohib- ited "showing of the human male or female genitals, Deja Vu contends totally nude dancing is protected pubic area, vulva, anus, or anal cleft with less than a under California Constitution, except in establish- fully opaque covering, or the showing of the female ments serving alcohol. However, Deja Vu's authority, breast with less than a fully opaque covering of any Morris v. Municipal Court, 32 Cal.3d 553, 186 part of the nipple." Id. at 1186 n. 4. Heideman found Cal.Rptr. 494, 652 P.2d 51 (1982), is distinguishable this nudity ban was indistinguishable from that up- and no longer supports this proposition. held by the Supreme Court in Pap's. 348 F.3d at 1185, 1200. Specifically, Heideman found the provi- Morris held a county ordinance was unconstitution- sion was narrowly tailored: ally overboard, and issued a writ of prohibition in fa- [T]he district court did not abuse its discretion in vor of a nude dancer who was "arrested for having concluding that the Ordinance satisfies the fourth exposed her buttocks during a performance" in viola- and final O'Brien factor-that the restriction is no tion of the ordinance. Id. at 556, 569, 186 Cal.Rptr. greater than is essential to the furtherance of the 494, 652 P.2d 51. The ordinance was ultimately government interest-for the same reason that factor found unconstitutional because the only government was satisfied in Pap's: the requirement that dancers interest it was intended to serve was the "promotion wear "g-strings" and "pasties" has a "de minimis " of public morals," which the court found constitution- effect on their ability to communicate their mes- ally insufficient. Id. at 566-69, 186 Cal.Rptr. 494, sage. 652 P.2d 51. As discussed above, unlike in Morris, Id. at 1200. the County's aim here is otherwise.
The Court finds the definition of nudity in Heideman More importantly, Morris is no longer good law. The is not distinguishable in a constitutionally-meaningful majority's analysis relied extensively on United way from the County's new definition. Although States Supreme Court authority for the holding. Id., Heideman referred to the "G-strings and pasties" passim. Since Morris predates Barnes and Pap's, it is rather than "G-strings and pasties plus," the actual no longer valid to the extent it prohibited restrictions language of the ordinance, which requires opaque on nudity which were later approved in Barnes. See covering of the anal cleft, parallels the County's lan- Tily B., Inc. v. City of Newport Beach, 69 guage here, which requires opaque covering of the Cal.App.4th 1, 18, 81 Cal.Rptr.2d 6 (1998) ("Morris anal cleft or cleavage. was a state court interpretation of federal constitu- tional law since foreclosed by Barnes."). Further- Based on the foregoing, and in the absence of any more, the decision in Morris is in part based on the evidence how the County's new requirement would proposition the O'Brien test does not apply to the reg- affect the dancers' erotic message, the Court finds ulation of nudity. Morris, 32 Cal.3d at 559, 186 Deja Vu has failed to raise a genuine issue of materi- Cal.Rptr. 494, 652 P.2d 51. This proposition was al fact in opposition to the County's summary judg- negated in Pap's. See 529 U.S. at 289, 120 S.Ct. ment motion. A fortiori, it has failed to meet its bur- 1382. den as the moving party on its cross-motion. Deja Vu also argues the nudity ban is unconstitution- 2. The California Constitution Claim al under California law because the free speech pro- visions of the California Constitution are "more In addition to the First Amendment challenge to the definitive and inclusive than the First Amendment."
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See Spiritual Psychic Sci. Church v. City of Azusa, 39 for Survival, 22 Cal.4th at 365, 367-78, 93 Cal.3d 501, 519, 217 Cal.Rptr. 225, 703 P.2d 1119 Cal.Rptr.2d 1, 993 P.2d 334, Deja Vu does (1985), overruled in part by Kasky v. Nike, Inc., 27 not contend the nudity ban is content-based, Cal.4th 939, 968, 119 Cal.Rptr.2d 296, 45 P.3d 243 and does not challenge the applicability of (2002) (quoting Wilson v. Sup.Ct., 13 Cal.3d 652, the intermediate scrutiny standard. 658, 119 Cal.Rptr. 468, 532 P.2d 116 (1975)). Deja Vu likens this case to Pap's on remand to Based on the foregoing, Deja Vu has not established Pennsylvania Supreme Court, which concluded a the County's new nudity ban violates the California similar anti-nudity ordinance violated the Constitution. Accordingly, Deja Vu's summary judg- Pennsylvania Constitution, although the United ment motion as to the nudity ban claim under Califor- States Supreme Court concluded it did not violate the nia Constitution is denied for the same reasons its First Amendment. Pap's A.M. v. City of Erie, 571 Pa. motion with respect to the nudity ban under the First 375, 812 A.2d 591, 593 (2002). It is beyond question Amendment was denied. the California Constitution is an independent docu- B. Proximity Limit and Staging Requirement ment and its constitutional protections are separate from and not dependent upon the federal Constitu- [15] Deja Vu's complaint challenges on First Amend- tion, even when the language of the two charters is ment grounds the proximity limit and staging require- the same. (Cal. Const., art. I, § 24.) In this instance, ment of the amended ordinance, which requires semi- the language of the relevant California constitu- nude entertainers to perform "at least six (6) feet from tional provision differs from, and in some respects the nearest area occupied by patrons and on a stage is broader than, the federal Constitution. elevated at least eighteen (18) inches from the floor." Los Angeles Alliance for Survival, 22 Cal.4th at 365, (LR, at 155 [Ordinance No. 9479, § 21.1812(b) ].) 93 Cal.Rptr.2d 1, 993 P.2d 334. The County moves for summary judgment on this claim, and Deja Vu cross-moves on the same claim. Nevertheless, current California law does not support Deja Vu contends that when considered together with Deja Vu's argument the California Constitution man- the nudity ban, the County lacks sufficient evidence dates a different result than the First Amendment in in support of the new distance and staging require- this instance. Without reference to Morris, sub- ments, and these requirements are not narrowly sequent California Supreme Court opinions have ap- tailored when considered together with the nudity plied the time, place, and manner test "fashioned ban. from a long line of United States Supreme Court cases." Id. at 367 n. 7, 93 Cal.Rptr.2d 1, 993 P.2d The purpose of the proximity limit and staging re- 334; see also *1121Raven v. Deukmejian, 52 Cal.3d quirement is to reduce the opportunity for prostitution 336, 353, 276 Cal.Rptr. 326, 801 P.2d 1077 (1990) and narcotics transactions between entertainers and ("cogent reasons must exist before a state court in patrons. To support these new requirements, the construing a provision of the state Constitution will County relied on the Legislative Record, which, as depart from the construction placed by the Supreme discussed above, compares favorably to the evidence Court of the United States on a similar provision in relied on in other cases to support similar regulations, the federal Constitution."). Accordingly, the same in- and which has been found to be "reasonable and rel- termediate scrutiny of reasonable time, place, and evant" in other cases. manner restrictions, applied above to Deja Vu's First Amendment argument, applies to its California Con- As with the nudity ban, for its argument the County stitution argument. [FN5] had insufficient evidentiary support, Deja Vu offers no evidence of its own, but relies on Dr. Linz' obser- FN5. Although California courts rely vation, "[n]o study specifically deals with adverse primarily on California--rather than federal- secondary effects related to the presence of pasties -law to analyze the issue whether a regula- and G-string establishments." (Linz Decl., at 5.) As tion is content-based, Los Angeles Alliance
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discussed above, this is insufficient as a matter of law lieve that minimal clothing obviates the need for to cast doubt on the County's evidence or raise a these measures when the atmosphere is equally genuine issue of material fact in opposition to the charged-money exchanges and touching are no County's motion. more difficult if the dancer is wearing minimal clothing than if she is partially or fully nude. Deja Vu also argues the staging requirement and Id. at 1127. The proximity and no-touching restric- proximity limit are not narrowly tailored when tions were found to be constitutional time, place, and viewed in combination with the nudity ban. Specific- manner restrictions even when considered in combin- ally, it contends "nude dance entertainment is totally ation with the clothing requirement. Id. at 1128. precluded" or "totally forbidden" and "[d]ancers clothed under the County's [new restriction on nud- Similar staging and distance requirements in combin- ity] no longer pose the risk of purported adverse sec- ation with other regulations were upheld as constitu- ondary effects relied on to justify the elevated stage tional. Colacurcio v. City of Kent held constitutional and proximity limit." (Pls.' Joint Opp'n, at 16-17.) an ordinance requiring dancers perform on a platform This is an overstatement. As discussed above, in con- at least twenty-four inches high and ten feet from the junction with the proximity and staging restrictions, patrons in combination with minimum-lighting and the amended ordinance permits semi-nude dancing no-tipping provisions. 163 F.3d at 548-49. The which requires de minimis coverage. plaintiffs had previously offered table dancing, which was prohibited by the new staging and distance re- *1122 In addition, Deja Vu's unsupported premise- quirements, and offered "declarations of a cultural -that semi-nude entertainers who perform in close anthropologist and a communications expert attesting proximity to patrons no longer pose any risk of enga- to the uniqueness of table dancing and the detriment- ging in prostitution, pandering, or drug trafficking- al effect of the ten-foot rule on the dancer's message." -has been rejected by the Ninth Circuit. Gammoh v. Id. at 555. Regardless, the Ninth Circuit concluded City of La Habra considered the constitutionality of "table dancing in private nightclubs, with docu- an ordinance prohibiting contact between patrons and mented links to prostitution and drug dealing, is a dancers, and requiring dancers to perform at least two highly unlikely candidate for special protection under feet away from patrons. 395 F.3d at 1118-19. The the First Amendment." Id. at 556. Accordingly, the court found the "two-foot rule and the no-touching distance requirement was upheld as a matter of law. rule are reasonably linked to the secondary effects Id. at 556-57 (the staging requirement was not chal- that the [government] identifies as its purpose in en- lenged). acting the Ordinance"--combating "secondary effects, such as solicitation of prostitution and drug transac- Kev, Inc. v. Kitsap County upheld an ordinance which tions." Id. at 1125-26. The opinion rejects the argu- required "dancing occur on a raised platform at least ment there is no legitimate justification for the dis- ten feet from patrons" in combination with a prohibi- tance requirement in conjunction with the minimal tion of certain touching between patrons and dancers, clothing requirement: and the prohibition of direct payment or receipt of The presence or absence of minimal clothing is not gratuities, among other things. 793 F.2d 1053, 1056 relevant to whether separation requirements fulfill (9th Cir.1986). The court reasoned: the stated purpose of the Ordinance. This circuit re- Separating dancers from patrons would reduce the cognizes that municipalities may reasonably find opportunity for prostitution and narcotics transac- that separation requirements serve the interest of tions. Similarly, prohibiting dancers and patrons reducing the secondary effects of adult establish- from engaging in sexual fondling and caressing in ments. "Buffers" between patrons and performers an erotic dance studio would probably deter prosti- prevent the exchange of money for prostitution or tution. Preventing the exchange of money between drug transactions and allow enforcement of "no dancers and patrons would also appear to reduce touching" provisions, which would otherwise be the likelihood of drug and sex transactions occur- virtually unenforceable.... There is no reason to be- ring on regulated premises.
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*1123 Id. at 1061. It further concluded the staging cient for the County to meet its initial burden of pro- and distance requirements did not unduly burden pro- ducing relevant evidence which fairly supports the tected speech: no-direct-tipping provision. As to the direct-tipping [T]hese regulations do not significantly burden first prohibition, Deja Vu does not contend to the con- amendment rights. While the dancer's erotic mes- trary. sage may be slightly less effective from ten feet, the ability to engage in the protected expression is Deja Vu recognizes the Ninth Circuit previously re- not significantly impaired. Erotic dancers still have jected a First Amendment challenge to a prohibition reasonable access to their market. on direct tipping. See Kev, 793 F.2d 1053. It attempts Id. Based on the foregoing case law, and in the ab- to distinguish the County's amendment by arguing the sence of any evidence, Deja Vu's opposition to the provision is "overly broad" and chilling of protected County's summary judgment motion with respect to expression. the staging requirement and proximity limit fails as a A First Amendment challenge to a no-direct-tipping matter of law, as does Deja Vu's cross-motion on the regulation was rejected in Kev. 793 F.2d at 1061-62. same claim. Similarly to the County's amendment in this case, the C. No Direct Tipping ordinance in Kev provided: "No patron shall directly pay or give any gratuity to any dancer [and] no dan- Deja Vu's complaint challenges on First Amendment cer shall solicit any pay or gratuity from any patron." grounds the provision prohibiting direct tipping. The Id. at 1061. In finding the provision a constitutional amended ordinance provides: time, place, and manner restriction, the court It shall be a violation of this chapter for an employ- reasoned "[p]reventing the exchange of money ee, who regularly appears in a state of semi-nudity between dancers and patrons would ... appear to re- in the adult entertainment establishment, to know- duce the likelihood of drug and sex transactions oc- ingly or intentionally receive any pay or gratuity curring on regulated premises." Id. directly from any patron, or for any patron to knowingly or intentionally pay or give any gratuity Deja Vu attempts to distinguish Kev by arguing its directly to any employee who appears in a state of direct-tipping prohibition was more precise because it semi-nudity in the adult entertainment establish- applied only to dancers, whereas the County's provi- ment. sion is overly broad [FN6] because it applies to every (LR, at 155 [Ordinance No. 9479, § 21.1812(c) ].) *1124 employee who "regularly appears in a state of The County moves for summary judgment on Deja semi-nudity," and is not limited to "during a perform- Vu's First Amendment claim, and Deja Vu cross- ance" or to "while in a state of semi-nudity." (Pls.' moves on the same claim. In addition, Deja Vu Joint Mot., at 18.) As discussed above, under inter- moves for summary judgment on the theory the no- mediate scrutiny, the County is not required to estab- direct-tipping provision violates the Due Process lish the means it has chosen is the least restrictive for Clause of the Fourteenth Amendment. addressing a particular problem. A time, place, and manner restriction is considered narrowly tailored if 1. The First Amendment Claim the government shows its chosen means "serve a sub- stantial government interest," and affects only that [16] The no-direct-tipping provision is intended to category of businesses shown to produce the un- work in conjunction with the staging requirement and wanted secondary effects. Renton, 475 U.S. at 50-52, proximity limit to reduce the opportunity for dancers 106 S.Ct. 925. Moreover, if the County were to im- and patrons to engage in prostitution, pandering, and plement Deja Vu's suggestions, the amendment narcotics transactions. The evidentiary record sup- would no longer serve the purpose of reducing the porting this provision is the same as that referred to opportunity for dancers and patrons to engage in above in support of other performance regulations. prostitution, pandering, and narcotics transactions, as For the reasons outlined above, this record is suffi- "drug and sex transactions between employees and
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patrons would merely be delayed until after the per- tential adverse economic impact. Fantasyland made formance, but would still take place on the premises. the same economic argument to challenge the open- The same is true if an employee could solicit and ac- booth requirement. Deja Vu's economic argument cept tips by merely putting on additional clothes im- lacks merit for the same reasons Fantasyland's does. mediately following the completion of a perform- As discussed above, as long as there is no "absolute ance." (Def.'s Opp'n, at 18.) bar to the market ..., it is irrelevant whether '[a regu- lation] will result in lost profits, higher overhead FN6. Although Deja Vu states the direct tip- costs, or even prove to be commercially unfeasible ping prohibition is "overbroad" (Pls.' Joint for an adult business.' " Spokane Arcade, 75 F.3d at Mot., at 18; Pls.' Joint Opp'n, at 19), it does 666 (alteration in the original) (quoting Walnut Prop- not argue the First Amendment overbreadth erties, 861 F.2d at 1109); see also Matney, 86 F.3d at doctrine. Overbreadth is an "exception to the 698 *1125 ("an incidental financial effect on adult prudential limits on standing." Young v. City entertainment speakers" is of no constitutional signi- of Simi Valley, 216 F.3d 807, 815 (9th ficance). Deja Vu presented no evidence from which Cir.2000). Specifically, "[u]nder the over- the trier of fact could infer the County's direct-tipping breadth doctrine, a plaintiff may challenge prohibition represents a complete bar to the market. government action by showing that it may Furthermore, Deja Vu's argument overstates the im- inhibit the First Amendment rights of parties plication of the provision. The County's amended or- not before the court[, and] is based on the dinance does not prohibit all tipping, and does not idea that the very existence of some broadly preclude entertainers from receiving tips indirectly written laws has the potential to chill the ex- through the use of a "tip jar." (See Def.'s Opp'n, at pressive activity of others not before the 18.) court." Dream Palace, 384 F.3d at 999 (internal citations and quotations omitted). FN7. In opposition to Deja Vu's summary However, Deja Vu does not cite to any au- judgment motion, the County assumes Deja thority addressing the overbreadth doctrine. Vu's reference to California Labor Code Furthermore, standing is not an issue be- Section 351 is an attempt by Deja Vu to cause Deja Vu is an existing adult entertain- raise a separate claim under California law ment business directly affected by the for a violation of section 351, and argues the amendment. See id. The Court therefore Court should deny any such claim. To the construes Deja Vu's references to over- extent Deja Vu intended to allege this claim, breadth as an argument the direct-tipping it is not included in its operative complaint, prohibition is not narrowly tailored. To the and Deja Vu does not seek to amend it. The extent Deja Vu intended to assert the First claim is therefore not included in this action. Amendment rights of its performers, the Furthermore, a review of Deja Vu's briefing substantive First Amendment analysis of the on cross-motions for summary judgment in- direct-tipping prohibition is the same. dicates the references to section 351 are made to support the argument tipping de- Deja Vu next argues the direct-tipping prohibition vi- serves special protection under the First olates the First Amendment because it imposes a fin- Amendment rather than in an attempt to ancial disincentive which discourages participation in raise a new claim. protected speech. It contends tips are "an important source of income for many service employees," and Based on the foregoing, as a matter of law, none of claims California legislature has determined tipping Deja Vu's arguments in support of its First Amend- "warrants special statutory protection." (Pls.' Joint ment challenge to the direct-tipping prohibition is Mot., at 19 [citing Cal. Lab Code § 351]. [FN7]) In sufficient to successfully oppose the County's sum- essence, Deja Vu is arguing the direct-tipping prohib- mary judgment motion, or to prevail on Deja Vu's ition violates the First Amendment because of its po- cross-motion.
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2. The Due Process Claim the ordinance was found sufficiently specific because it "clearly delineate[d] its reach in words of common Deja Vu also claims the direct-tipping prohibition vi- understanding." Id. at 112, 92 S.Ct. 2294 (internal olates due process because it is impermissible vague, quotations omitted); see also Kev, 793 F.2d at 1057- and because it violates the liberty interest in working 58 (" 'Caressing' and 'fondling' are ordinary, com- for a living in the common occupations of the com- monly used terms," easily understood when read in munity, and the provision "interferes with occupa- the context of other ordinance provisions). "[W]here tional liberty interests." (Pls.' Joint Mot., at 20.) first amendment freedoms are at stake, an even great- Neither argument is sufficient to find the direct-tip- er degree of specificity and clarity of laws is re- ping prohibition unconstitutional. quired." Kev, 793 F.2d at 1057.
[17] First, Deja Vu argues the phrase "regularly ap- Likewise, "regularly" is a word of common under- pears in a state of semi-nudity" is impermissibly standing and of sufficient definiteness that ordinary vague because "regularly" is not defined, and it is un- people can understand. *1126 The dictionary defini- clear whether it means semiannually, daily, monthly, tion of "regular" is "recurring, attending, or function- throughout a shift, or "only a couple of times per ing at fixed or uniform intervals." Merriam-Webster's night." (Pls.' Joint Mot., at 18.) "A fundamental re- Collegiate Dictionary, 986 (10th Ed.1998). Deja Vu quirement of due process is that a statute must clearly argues the term is vague because there is nothing to delineate the conduct it proscribes." Kev, 793 F.2d at indicate precisely how many times an employee must 1057 (citing Grayned v. City of Rockford, 408 U.S. appear in a state of semi-nudity to have "regularly" 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972)). done so. For example, could penalties be imposed "[T]he void-for-vagueness doctrine requires a penal against an employee hired as a waitress who collects statute define the criminal offense with sufficient def- tips during her shift and then occasionally appears as initeness that ordinary people can understand what a dancer in a state of a semi-nudity? The answer is conduct is prohibited and in a manner that does not yes, based on the dictionary definition and common encourage arbitrary and discriminatory enforcement." sense meaning of the word. "[E]ven a low frequency Kolender v. Lawson, 461 U.S. 352, 357, 103 S.Ct. of occurrence can establish regularity," and the term 1855, 75 L.Ed.2d 903 (1983). For example, a statute "regularly" is not vague simply because it does not which required people on the street "to provide a specify the frequency. City of Cleveland v. Daher, 'credible and reliable' identification" to a police of- No. 98-CVH-12396, 2000 WL 1844739, **4-6, 2000 ficer when requested to do so was held unconstitu- Ohio App. LEXIS 5937, at *15-17 (Ohio tionally vague because it contained "no standard for Ct.App.2000). "[S]ome imprecision is unavoidable." determining what a suspect has to do to satisfy the re- Id.; see also Grayned, 408 U.S. at 110, 92 S.Ct. 2294 quirement," and thus vested "virtually complete dis- ("we can never expect mathematical certainty from cretion in the hands of the police to determine wheth- our language"). er the suspect [had] satisfied the statute." Id. at 353-54, 358, 103 S.Ct. 1855. Although a constitutional vagueness challenge to the use of the word "regular" or "regularly" in the context [18] However, a statute or ordinance is not unconsti- of an adult entertainment ordinance has not been con- tutionally vague simply because it includes a flexible sidered by the Ninth Circuit, similar challenges have standard or provides some discretion for enforcement been rejected by other courts based on the reasons officials. For example, an ordinance prohibiting "the discussed above. See 511 Detroit St., Inc. v. Kelley, making of any noise or diversion which disturbs or 807 F.2d 1293, 1295-97 (6th Cir.1986) tends to disturb the peace or good order" is not un- (anti-obscenity law imposing criminal penalties for constitutionally vague. Grayned, 408 U.S. at 107-08, dissemination of obscene materials as a "predominant 92 S.Ct. 2294. This language is marked by "flexibil- and regular part" of a business found not unconstitu- ity and reasonable breadth, rather than meticulous tionally vague, reasoning a statute is not unconstitu- specificity." Id. at 110, 92 S.Ct. 2294. Nevertheless, tional just because "there are cases near the margin
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where it is difficult to draw the line"); Britt v. State of [20] Deja Vu's complaint challenges on the First Florida, 775 So.2d 415, 416-17 (Fla.Ct.App.2001) Amendment grounds the no-touching provision of the (parole condition forbidding those convicted of sexu- County's amended ordinance, which provides in per- al crimes against children from working, volunteer- tinent part: ing, or living near any "school, daycare center, park, It shall be a violation of this chapter for an employ- playground, or other place where children regularly ee who regularly appears in a state of semi-nudity congregate" was "sufficiently precise," and not un- in an adult entertainment establishment, to know- constitutionally vague); Haviland Hotels, Inc. v. Ore- ingly or intentionally touch a customer or the cloth- gon Liquor Control Comm'n, 20 Or.App. 115, 530 ing of a customer while on the premises of the es- P.2d 1261, 1262-63 (1975) (local regulation requiring tablishment. certain businesses to provide "regular meals during (LR, at 155 [Ordinance No. 9479, § 21.1812(d) ].) the usual hours when such meals are regularly The County moves for summary judgment on this served" not void for vagueness because "regular claim, and Deja Vu cross-moves on the same claim. meals" has "a clear, grassroots connotation"); Daher, 2000 WL 1844739, * 4, **4-6, 2000 Ohio App. The no-touching provision is intended to work in LEXIS 5937, at *13, 15-17 (zoning law restricting conjunction with the other performance restrictions location of adult cabarets which "regularly" feature discussed above to reduce the opportunity for dancers topless dancers held not unconstitutionally vague be- and patrons to engage in prostitution, pandering, and cause the term "regularly" was not so imprecise that narcotics transactions. The legislative record support- it could not be understood by ordinary persons ing the no-touching provision is the same as that dis- without a statement by the government setting forth cussed above, and is sufficient to meet the County's "a distinct frequency below which topless entertain- initial burden of producing relevant evidence which ment is not subject to the zoning ordinance"). Ac- fairly supports the no-touching provision. cordingly, the Court finds the term "regularly" as A First Amendment challenge to a no-touching provi- used in the no-direct-tipping provision of the sion has been rejected by the Ninth Circuit. Kev, 793 amended ordinance is not impermissibly vague. F.2d at 1061-62. As with the direct-tipping prohibi- [19] In its second due process argument, that the dir- tion, Deja Vu attempts to distinguish the County's ect-tipping prohibition interferes with occupational amendment by arguing it is not narrowly tailored liberty interests, Deja Vu restates its First Amend- [FN8] because it is not limited to "sexual touching," ment claim as a substantive due process claim. it is redundant when considered together with the sta- However, "[w]here a particular Amendment 'provides ging requirement and proximity limitation, interferes an explicit textual source of constitutional protection' with an individual's right to associate, and because it against a particular sort of government behavior, 'that is directed only to the employees and not the patrons. Amendment, not the more generalized notion of "sub- (Pls.' Joint Mot., at 21; Pls' Joint Reply, at 12.) stantive due process," must be the guide for analyzing FN8. Although Deja Vu again refers to these claims.' " Albright v. Oliver, 510 U.S. 266, 273, terms such as "overly broad," it does not ar- 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (quoting Gra- gue the overbreadth doctrine. ham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). The County's amendment differs from the ordinance in Kev because is not limited to sexual touching, and *1127 Based on the foregoing, Deja Vu's summary it focuses on employee--rather than patron-- conduct. judgment motion is denied with respect to the due Deja Vu argues a patron could grope or grab an "em- process challenges to the direct-tipping prohibition. ployee who regularly appears in a state of semi- Furthermore, since this challenge fails as a matter of nudity" but the employee would not be free to push law, the due process claim is dismissed. the patron away. These distinctions, however, are D. No Touching without a difference. As discussed above, a time,
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place, and manner restriction is considered narrowly (Pls.' Joint Mot., at 21.) Deja Vu's argument is an tailored if the government shows its chosen means overstatement; employees who regularly appear in "serve a substantial government interest," and affects the state of semi-nudity on the business premises are only that category of businesses shown to produce free to associate with whomever they choose when the unwanted secondary effects. Renton, 475 U.S. at not on the premises. 50-52, 106 S.Ct. 925. Intermediate scrutiny does not require the government to establish the means it has Based on the foregoing, Deja Vu's arguments are in- chosen to address the secondary effects is the least re- sufficient as a matter or law to successfully oppose strictive. Id. Furthermore, the chosen means may dis- the County's summary judgment motion. A fortiori, criminate or be under-inclusive without offending the they are insufficient to entitle Deja Vu to summary First Amendment, because the government does not judgment on its cross-motion. have to attempt to address all of its interests at one VI. Zoning Restrictions time. In Renton, for example, the location restriction only applied to adult theaters and not to other types In its complaint Deja Vu challenges the amended of adult businesses. This is permissible because the zoning ordinance. [FN9] Prior to amendment, the or- government "must be allowed a reasonable opportun- dinance permitted adult entertainment businesses to ity to experiment with solutions" and may choose to be located in commercial zones, provided they were single out and place limitations on "one particular at least 500 feet from residential zones, 600 feet from kind of adult business." Id. at 52-53, 106 S.Ct. 925. any church, school, public playground, park or recre- In addition, the government has broad discretion in ational area, and 1,000 feet from any other adult en- selecting a method "to further its substantial in- tertainment business. While the amendment retains terests." Id. *1128 at 52, 106 S.Ct. 925. It is therefore the distance and separation requirements, it requires of no constitutional significance that the County dir- adult entertainment businesses to locate in industrial, ected the no-touching provision to the employees' rather than commercial, zones. (See LR, at 25 conduct, not the patrons.' [Ordinance No. 9469, § 6930(b)(2) ].) Businesses such as Deja Vu, which had obtained a permit to op- Deja Vu further argues the no-touching provision is erate in a commercial zone prior to the amendment, not narrowly tailored because the proximity limit and must relocate to an industrial zone within three years. the staging requirement already make touching between patrons and performers "impossible." (Pls.' FN9. As discussed below, as a practical mat- Joint Mot., at 21.) Deja Vu is mistaken in light of the ter, this provision affects only Deja Vu. express language of the performance restrictions. The proximity limit and staging requirement do not make The zoning ordinance was amended to reduce the touching impossible because they only apply while negative secondary effects, specifically the blight, the employee is "in a state of semi-nudity." (LR, at noise, traffic, and crimes such as robbery, property 155 [Ordinance No. 9479, § 21.1812(b) ].) In con- theft, assault and battery, which affect neighboring trast, the no-touching provision applies at all times businesses and their patrons in commercially zoned "while on the premises of the establishment" to em- areas. In addition, the amendment was intended to ployees who regularly appear in a state of semi- ameliorate decreased property values in commer- nudity. The provisions are therefore not redundant cially zoned areas. but complementary. Furthermore, they target conduct likely to lead to the unwanted secondary effects of Deja Vu alleges the zoning amendment violates "the prostitution, pandering and drug trafficking. adult public's right to freedom of speech, press and expression protected by the First and Fourteenth Last, Deja Vu contends the touching ban is not nar- Amendments to the United States Constitution, and rowly tailored because it "runs from shaking the hand Article 1, § 2 of the California Constitution." (First of a regular customer to hugging a relative or close Am. Compl., at 20; see also id. at 14 & 23.) The friend, even when the entertainer is fully clothed." County moves for summary adjudication on Deja
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Vu's claim, and Deja Vu cross-moves on the same Vu does not seek to amend it, its motion for summary claim. The County contends the amended zoning or- judgment is denied to the extent it is based on this dinance meets the First Amendment intermediate claim. scrutiny. Deja *1129 Vu does not dispute intermedi- ate scrutiny applies to the zoning amendment, [21] In the alternative, Deja Vu's motion as to the however, it contends the amendment fails to meet its General Plan claim is denied because it has failed to requirements. In addition, Deja Vu argues the proced- show the zoning amendment is inconsistent with the ural safeguards of the zoning amendment are not con- General Plan. "Once [a municipality] has adopted a stitutionally sufficient, the amendment is void be- general plan, all zoning ordinances must be consist- cause it violates the County's General Plan, and con- ent with that plan, and to be consistent must be 'com- stitutes unlawful spot zoning. patible with the objectives, policies, general land uses, and programs specified in such a plan.' " Lesher A. The General Plan Communications, Inc. v. City of Walnut Creek, 52 Cal.3d 531, 536, 277 Cal.Rptr. 1, 802 P.2d 317 Deja Vu contends the zoning ordinance amendment (1990) (quoting Cal. Gov't Code § 65860(a)(ii)). [A] is invalid because it is inconsistent with the County's finding of consistency requires only that the proposed General Plan. [FN10] See Cal. Gov't Code § 65860. It project be compatible with the objectives, policies, seeks a finding that the amendment is unlawful on general land uses, and programs specified in the ap- this basis, or in the alternative, contends the County's plicable plan. The courts have interpreted this provi- motion for summary adjudication of the constitution- sion as requiring that a project be in agreement or ality of the amendment be denied on this basis. harmony with the terms of the applicable plan, not in rigid conformity with every detail thereof. San Fran- FN10. California Government Code Section ciscans Upholding the Downtown Plan v. City & 65860(a) states in part: "County or city zon- County of San Francisco, 102 Cal.App.4th 656, 678, ing ordinances shall be consistent with the 125 Cal.Rptr.2d 745 (2002) (internal quotation marks general plan of the county or city...." Section and citations omitted). "A zoning ordinance incon- 65860(b) states in part: "Any resident or sistent with the general plan at the time of its enact- property owner within a city or a county, as ment is invalid when passed." deBottari v. City Coun- the case may be, may bring an action or pro- cil of the City of Norco, 171 Cal.App.3d 1204, 1212, ceeding in the superior court to enforce 217 Cal.Rptr. 790 (1985) (internal quotation marks compliance with subdivision (a). Any such and citations omitted). action or proceeding shall be governed by Chapter 2 (commencing with Section 1084) Deja Vu relies on the declaration of R. Bruce of Title 1 of Part 3 of the Code of Civil Pro- McLaughlin, its land use planning and development cedure. No action or proceeding shall be expert. (McLaughlin Decl., at 18-25 & Ex. A.) Mr. maintained pursuant to this section by any McLaughlin opined the General Plan permits com- person unless the action or proceeding is mercial uses in industrial zones so long as those com- commenced and service is made on the le- mercial uses provide essential support services to gislative body within 90 days of the enact- manufacturing plants and their personnel. Deja Vu ment of any new zoning ordinance or the submits adult entertainment is not an essential sup- amendment of any existing zoning ordin- port service to manufacturing plants and their person- ance." nel.
The General Plan claim is not raised in Deja Vu's op- *1130 On the other hand, the County offers the opin- erative complaint, and Deja Vu does not explain how ion of David Hulse, the Land Use Chief for the its General Plan argument relates to the freedom of County, in support of its argument that the amend- speech claims raised in the complaint. As the General ment is consistent with the General Plan. (Hulse Sup- Plan claim is not alleged in the complaint, and Deja plemental Decl., at 1.) Mr. Hulse was "primarily re-
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sponsible for drafting the amendment to the County's reasonable trier of fact could find other than in Deja zoning ordinance that requires adult entertainment es- Vu's favor. Accordingly, even if Deja Vu had tablishments to be located in industrial zones." (Id. at amended its complaint to include the General Plan 1-2.) The General Plan states: "The Industrial Desig- claim, its summary judgment motion would be nations provide locations for manufacturing, industri- denied for failure to rebut the County's evidence. al, wholesaling, and warehousing uses based on the potential nuisance characteristics or impacts of use." Furthermore, since the General Plan argument is not According to Mr. Hulse, the County's Department of responsive to the constitutional issues raised in the Planning and Land Use "determined that the zoning County's summary adjudication motion, issues of fact ordinance amendment is consistent with the County's pertaining to the General Plan argument are not ma- General Plan .... Specifically, the Department con- terial. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505 cluded adult entertainment establishments exhibit (a fact is material if it could affect the outcome of the greater 'nuisance characteristics or impacts' than do suit under the governing substantive law). To the ex- most typical commercial establishments. Because the tent Deja Vu relies on the General Plan argument to nuisance characteristics or impacts associated with oppose the County's summary judgment motion, it is adult entertainment establishments are closer to those legally insufficient. exhibited by most industrial uses, the County determ- B. Reasonable Time, Place, and Manner Regulation ined it was more appropriate to require adult busi- nesses to be located in industrial zones, where they [22] Deja Vu contends the zoning amendment does will be more compatible with neighboring uses." (Id. not meet the intermediate scrutiny standard because at 2.) Deja Vu does not oppose or in any way address is not supported by evidence showing it would ad- the County's evidence or argument that the amend- vance a substantial government interest, is not nar- ment is consistent with the General Plan. rowly tailored, and does not leave *1131 open reas- onable alternative means of communication. Since Deja Vu would bear the burden of proof at trial as to its General Plan claim, it has a higher burden on 1. Rationale for the Amendment summary judgment. "When the party moving for summary judgment would bear the burden of proof at Deja Vu argues the amendment is unconstitutional trial, it must come forward with evidence ... estab- because it is aimed at reducing secondary effects by lishing the absence of a genuine issue of fact on each reducing speech. "[T]he necessary rationale for ap- issue material to its case." C.A.R. Transp. Brokerage, plying intermediate scrutiny is the promise that zon- 213 F.3d at 480 (internal quotation marks and cita- ing ordinances like this one may reduce the costs of tions omitted). In other words, it "must make a 'show- secondary effects without substantially reducing ing sufficient for the court to hold that no reasonable speech. For this reason, it does not suffice to say that trier of fact could find other than for the moving inconvenience will reduce demand and fewer patrons party,' " and "must establish beyond peradventure all will lead to fewer secondary effects." Alameda of the essential elements of the claim or defense to Books, 535 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., warrant judgment in [its] favor." Pecarovich v. All- concurring). state Ins. Co., 272 F.Supp.2d 981, 985 (C.D.Cal.2003) (internal citations omitted) (citing Deja Vu first argues the distance and dispersal provi- Calderone v. United States, 799 F.2d 254, 259 (6th sions of the zoning ordinance before amendment Cir.1986) and quoting Schwarzer, Summary Judg- achieved the same purpose of reducing secondary ef- ment Under the Federal Rules: Defining Genuine Is- fects as after amendment, but without burdening the sues of Material Fact, 99 F.R.D. 465, 487-88 (1984)). speech as much. This argument is unsupported by any evidence, and is therefore insufficient to raise a Based on the language of the General Plan and expert genuine issue of material fact. See Anderson, 477 opinions offered by each side, the Court cannot con- U.S. at 249, 106 S.Ct. 2505 ("there is no issue for tri- clude Deja Vu made a showing sufficient to hold no al unless there is sufficient evidence favoring the
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nonmoving party for a jury to return a verdict for that gument is based entirely on the last two sentences of party"). the response, ignoring the preceding text.
In the alternative, based on the County's responses to The response, when considered in its entirety, does interrogatories, Deja Vu argues the zoning ordinance not support the conclusion the County amended the was amended to relocate adult entertainment busi- ordinance to reduce the number of customers by nesses to industrial zones because this would reduce making it more inconvenient to patronize adult *1132 the number of adult entertainment patrons. If this entertainment businesses. Instead, the focus was on were the County's reasoning for the amendment, it the patrons of the neighboring businesses. Further- may well be impermissible; however, when the more, many industrial businesses are closed at night County's response to interrogatories is considered in when adult entertainment businesses are busiest. The context, Deja Vu's argument is not based on a fair neighboring industrial businesses and their patrons reading of the County's rationale. The pertinent por- would therefore not be as affected by secondary ef- tion of the County's response was: fects such as noise, traffic and crime, as are commer- The County believes that requiring adult entertain- cial businesses, which are often open at night. The ment establishments to be located in the industrial reference in the response to reducing the number of zones will reduce the negative secondary effects potential crime victims therefore referred to the pat- associated with adult entertainment establishments. rons of the neighboring businesses, rather than to Particularly, the County believes that blight, noise, adult entertainment patrons. Based on the foregoing, traffic, and certain crimes including robbery, prop- Deja Vu's argument regarding the rationale for the erty theft, assault and battery will be reduced. The amendment is not supported by evidence from which industrial zones are generally located further from a rational trier of fact could infer the County's aim residential areas than are the industrial [sic] zones. was to reduce the number of adult entertainment pat- Thus, requiring adult entertainment establishments rons rather than to reduce the secondary effects. to be located in industrial areas will reduce noise, traffic, and crime that effect [sic] residential prop- 2. Evidentiary Support for Amendment erty owners. In addition, decreased residential Deja Vu next argues the zoning amendment was en- property values will be ameliorated by requiring acted without evidentiary support. As outlined more adult entertainment establishments to be located in fully above, Deja Vu relies on the declaration of Dr. industrial zones. Further, most commercial estab- Linz, who concluded the studies relied on by the lishments rely on customers to visit their premises. County in enacting the amendments are unreliable. Many industrial facilities ship their products to However, for the reasons discussed above, Dr. Linz' middlemen and therefore fewer customers tend to declaration is insufficient as a matter of law to cast visit their premises. Thus, requiring adult entertain- direct doubt on the County's evidence, because it ad- ment establishments to be located in industrial dresses only the studies and not other categories of areas will reduce noise, traffic, and crime that ef- evidence on which the County relied, and because it fect [sic] commercial property owners and their targets only some of the numerous secondary effects patrons. In addition, decreased commercial prop- the amendment was intended to ameliorate. See erty values will be ameliorated by requiring adult World Wide Video, 368 F.3d at 1195-96. Dr. Linz' de- entertainment establishments to be located in in- claration is therefore insufficient to support Deja Vu's dustrial zones. Finally, fewer citizens tend to fre- summary judgment motion, or to raise a genuine is- quent industrial zones as compared to commercial sue of material fact in opposition to the County's zones, particularly at night. Thus, the zoning cross-motion. change should reduce crimes such as assault, bat- tery, robbery, and property theft by reducing the 3. Alternative Avenues of Communication number of potential victims. (Manicom Opp'n Decl., Ex. 1, at 5-6.) Deja Vu's ar- Zoning restrictions on adult entertainment businesses
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must allow "for reasonable alternative avenues of relevant real estate market, located in industrial zones communication." Renton, 475 U.S. at 50, 52, 106 and within the distance and separation requirements S.Ct. 925. "[T]he First Amendment requires only that of the amended ordinance. (Hulse Decl., at 2.) These [the government] refrain from effectively denying re- sites are located in eight different areas: Borrego spondents a reasonable opportunity to open and oper- Springs, Ramona, San Dieguito/Rancho Bemardo, ate an adult theater within the [municipality]." Id. at Lakeside, Alpine, Pepper Drive-Bostonia, El Cajon, 54, 106 S.Ct. 925. The "reasonable alternative aven- and Spring Valley. (Id. at 2; see also Nevin Decl.) In ues of communication" inquiry consists of two steps. addition, the County used its Geographic Information "[W]e first have to determine how many alternative System ("GIS"), which measures the distance sites are available, and then determine whether that between two points, and determined "that twelve number is sufficient to afford adult establishments a adult entertainment establishments could operate sim- reasonable opportunity to locate." Isbell v. City of ultaneously on the 76 sites identified by the County San Diego, 258 F.3d 1108, 1112 (9th Cir.2001) and still comply with the 1,000 feet separation re- (internal citation omitted). quirement between adult entertainment establish- ments." (Hulse Decl., at 2.) [23] In its motion for summary judgment, the County contends the zoning amendment leaves 76 sites avail- [24] "For sites to be available, they must be in the 'ac- able for Deja Vu's relocation. In its cross-motion and tual business real estate market.' " Isbell, 258 F.3d at in opposition to the County's motion, Deja Vu argues 1112-13 (quoting Lim, 217 F.3d at 1055). The fol- many of the sites identified by the County are not lowing factors are relevant to the consideration "available" as that term is defined for purposes of in- whether a site is reasonably within the business real termediate scrutiny, and the remaining sites are too estate market: few to constitute reasonable alternative avenues of (1) a relocation site is not part of the market if it is communication. unreasonable to believe that it would ever become available to any commercial enterprise; (2) a relo- a. Availability of Alternative Sites cation site in a manufacturing or industrial zone that is reasonably accessible to the general public The burden of persuasion is on the County to demon- may also be part of the market; (3) a site in a man- strate its amendment provides reasonable alternative ufacturing zone that has proper infrastructure may avenues of communication. See Isbell, 258 F.3d at be included in the market; (4) a site must be reas- 1112. The County "cannot merely point to a random onable for some generic commercial enterprise, al- assortment of properties and simply assert that they though not every particular enterprise, before it can are reasonably available to adult businesses." See be considered part of the market; and (5) a site that Lim, 217 F.3d at 1055. If the County provides "a is commercially zoned is part of the relevant mar- good faith and reasonable list of potentially available ket.... In addition, a site must obviously satisfy the properties," the burden shifts to Deja Vu "to show conditions of the zoning ordinance in question. that certain *1133 sites would not reasonably become Id. at 1113 n. 3 (quoting Lim, 217 F.3d at 1055). available." See Isbell, 258 F.3d at 1113 n. 5 (internal quotation marks and citation omitted). On the other Deja Vu contends "there are no sites available any- hand, if Deja Vu can show the County's attempt "is where in unincorporated San Diego County for Adult not in fact in good faith or reasonable, by, for ex- Use," because all of the sites identified by the County ample, showing that a representative sample of prop- are located in industrial zones which are not suitable erties are on their face unavailable, then the [County] for generic commercial land uses. (McLaughlin De- will be required to put forth more detailed evidence." cl., at 7.) Deja Vu claims this unsuitability is evid- See Lim, 217 F.3d at 1055. enced by "the absence of existing commercial uses" in these industrial zones, as well as the fact the only The County contends it has met its burden by identi- commercial uses permitted in industrial zones are fying a total of 76 potentially available sites in the adult entertainment establishments and essential or
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compatible support services to manufacturing plants As long as it is a part of an actual business real estate and their personnel. (Id. at 9, 16.) Specifically, Deja market for generic commercial enterprises, whether a Vu points out several sites do not have sidewalks and site is economically or physically suited for adult en- lighting. tertainment use is irrelevant. Isbell, 258 F.3d at 1113; see also Topanga Press, 989 F.2d. at 1531 ("[I]t is [25] The mere fact a site is located in an industrial constitutionally irrelevant whether relocation sites zone does not make it unavailable. Relocation sites in located in industrial or manufacturing zones suit the industrial zones are considered available, if they are particular needs of an adult business."). "[T]he pos- reasonably accessible to the public and have the ap- sible economic impact upon a business is not a factor propriate infrastructure. Topanga Press, 989 F.2d at to be considered by the courts when determining 1531. Whether the infrastructure provided is adequate whether a [municipality] has provided a business depends on whether it is reasonably necessary for any with a reasonable alternate location." Topanga Press, generic commercial enterprise. Diamond, 215 F.3d at 989 F.2d at 1529. If it is a part of an actual real estate 1056. Roads, lighting and sidewalks are not required market for generic commercial enterprises, "it is not for every industrially-zoned site, "rather these are ex- relevant whether a relocation site will result in lost amples of what may constitute proper infrastructure." profits, higher overhead costs, or even prove to be Id. Sites located along highways or main commercially infeasible for an adult business." Id. at driving*1134 thoroughfares where it is unlikely 1531. Furthermore, current occupancy and restrictive people would walk along a sidewalk to reach the lease terms prohibiting adult uses are irrelevant. Lim, business, might not need sidewalks and street light- 217 F.3d at 1055 (restrictive leases banning adult en- ing, especially if the sites have other examples of in- tertainment and current occupancy); Diamond, 215 frastructure which may support a commercial enter- F.3d at 1056 (current occupancy); Renton, 475 U.S. prise, such as power, water, and access to a main at 53-54, 106 S.Ct. 925 (current occupancy). road. Id. The County concedes three of the 76 sites are occu- The County's unrefuted evidence shows the sites pied by single-use buildings such as warehouses and lacking sidewalks and street lighting are located near factories, which are over 65,000 square feet. (Nevin major highways or major secondary roads. (Nevin Decl., at 3.) This type of large single-use buildings Decl., at 3.) Based on Diamond, sidewalks and street "may arguably be outside [the] commercial real estate lighting are unnecessary because the patrons would market." See Lim, 217 F.3d at 1055. Accordingly, the drive and not walk to the business. All the sites have Court will not consider these sites in the analysis. access to power, are served by piped water or wells, [FN11] or could be served by wells, and either have access to telephone service or could require the telephone com- FN11. The County does not identify the pany to install lines. (Id.) Deja Vu's argument that the three sites. Based on a detailed review of the sites are unavailable because they are located in in- exhibits attached to Mr. Nevin's declaration, dustrial zones and lack streetlights and sidewalks the Court excludes sites no. 8 and 11 in Area fails as a matter of law. 4 (parcels no. 326-050-12 and 326-060-18) and site no. 12 in Area 7 (parcel no. In addition, Deja Vu argues many of the sites are un- 483-071-11). available because they are not suitable for an adult entertainment business due to low traffic, lack of vis- Excluding the three large single-use sites, the Court ibility, current occupancy, unwillingness to lease to finds the County met its burden to come forward with adult entertainment businesses, or unsuitability of ex- a good faith and reasonable list of potentially avail- isting premises for an adult entertainment use. able sites. The County provided pertinent, specific (Luster Opp'n Decl.) This argument, which raises and detailed information about each site. See Lim, business and economic factors, is irrelevant under the 217 F.3d at 1055. Sites such as swamps, sewage governing law. treatment plants, airstrips for airports, sports stadi-
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ums, and land under the ocean are generally *1135 Dyke Veterans Park is not a public park as defined in considered unavailable. Topanga Press, 989 F.2d at one of the zoning code sections, which defines "Pub- 1531, 1532. The County's list does not contain prop- lic Active Park/Playground/Recreational Area" as: erties which on their face appear to be unavailable. "An outdoor area, along with its incidental buildings See Lim, 217 F.3d at 1055- 56. The burden therefore and structures, owned and/or operated by a public shifts to Deja Vu to show certain sites would not agency or a non-profit organization, which is de- reasonably become available. Id. signed, developed and intended to provide one or more recreational opportunities to the general pub- (i) Separation and Distance Requirements lic." (Def.'s Ex. 9 [San Diego County Zoning Ordin- ance § 1110].) A supporting declaration by the Deja Vu challenges specific sites based on the argu- County's Land Use Chief states as follows: ment they do not meet the distance and separation re- 4. In September 2004, I visited the VFW facility quirements of the amended ordinance. To be avail- located in the Alpine area. The facility has a sign able, the site must meet the requirements of the zon- stating "Tom C. Dyke Veterans Park." There is no ing ordinance in question. Isbell, 258 F.3d at 1113 n. indication that this site is being used as a park. 3 (quoting Lim, 217 F.3d at 1055). The burden is on There are no recreational facilities of any type Deja Vu to show certain sites would not reasonably (picnic tables, trails, play equipment, etc.) on this become available. See id. at 1113 n. 5. site. In fact, the site is located on a fairly steep Based on the opinion of its expert, Bruce R. slope. There is no indication that the site is open to McLaughlin, Deja Vu argues three sites in Area 7 the public and I saw no members of the public at may not meet the segregation requirements, because the site during my visit. Attached to the County of it appears several parcels may have been merged into San Diego's Exhibits In Support Of Its Opposition one. (McLaughlin Decl., at 12.) In his subsequent de- To Plaintiffs' Motion For Summary Judgment as position, however, Mr. McLaughlin withdrew this Exhibit 10 are true and correct copies of the photo- opinion. Deja Vu's argument therefore remains graphs that I took during my visit to the VFW fa- without evidentiary support. In the absence of any cility. evidence, Deja Vu failed to make a sufficient show- 5. The County has determined that the "Tom C. ing in support of its summary judgment motion, or Dyke Veterans Park" is not a park within the mean- raise a genuine issue of material fact in opposition to ing of section *1136 6930(b)(2) of the County's the County's motion, on the issue whether the sites in zoning ordinance, and is committed to that determ- Area 7 are unavailable due to the separation require- ination. ments. (Supplemental Hulse Decl., at 2.)
Deja Vu next argues the two sites in Area 5 are not It is undisputed a park is located within 600 feet of available because they violate the distance require- two of the proposed sites. The parties disagree wheth- ment of the amended ordinance. The ordinance pro- er the park fits the meaning of the undefined term as hibits adult entertainment establishments from being used in the amended ordinance. The County does not located "within 600 feet of any ... public playground provide any argument why section 1110, as opposed or park." (LR, at 25 [Ordinance No. 9469, § to some other definition of the term "park" in the zon- 6930(b)(2) ].) Deja Vu contends the Veterans of For- ing ordinance applies to interpret the amendment. As- eign Wars Facility, which includes the Tom C. Dyke suming section 1110 controls, the Court finds the Veterans Park, is located within 600 feet of two sites. County's evidence is insufficient to show the park (McLaughlin Decl., at 12.) does not meet the definition of that section. While neither side presented sufficient evidence to prevail The term "park" is not defined in the amended ordin- on their respective cross-motions, the Court finds ance, although other portions of the zoning code con- each side presented sufficient evidence to success- tain definitions. The County contends the Tom C. fully oppose the other's summary judgment motion.
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Accordingly, a disputed issue of fact remains whether respective cross-motions, the Court finds each side the two sites comprising Area 5 are unavailable for presented sufficient evidence to successfully oppose failure to meet the distance requirement. the other's summary judgment motion. Accordingly, a disputed issue of fact remains whether one site in (ii) Long-Term Leases Area 2 (parcel no. 281-182- 14) could be developed.
Deja Vu contends some of the sites are unavailable Deja Vu next contends "Area 4 has one parcel because they are occupied by tenants with long-term (326-050-11) located on a steep hillside, which could leases. "[A] long-term lease may exclude a site from not be developed, and many of the parcels have steep the commercial market." Isbell, 258 F.3d at 1113. slopes which are often an impediment to urban devel- Deja Vu's evidence consists of Mr. Luster's declara- opment." (McLaughlin Decl., at 14.) The County ar- tion regarding sites in Areas 3 and 6. (Luster Opp'n gues the site is available because of its large size Decl., at 4.) The County objected to these portions of (53.34 acres) and an existing business on it. the declaration on the grounds of lack of personal However, the *1137 County's argument does not ad- knowledge, lack of foundation and hearsay. The dress the parcel identified by Mr. McLaughlin. While Court agrees the pertinent statements are not admiss- Mr. McLaughlin was referring to parcel no. ible evidence. Only admissible evidence may be con- 326-050-11, the County was referring to parcel no. sidered in deciding a motion for summary judgment. 326-050-19. (Cf. McLaughlin Decl., at 14 and Def.'s Fed.R.Civ.P. 56(e); Beyene v. Coleman Sec. Serv., Opp'n, at 31.) The exhibit to Mr. Nevin's declaration Inc., 854 F.2d 1179, 1181-82 (9th Cir.1988). Deja pertaining to parcel no. 326-050-11 shows the size of Vu's argument based on long-term leases therefore the parcel is 7.53 acres, states it has no buildings, lacks evidentiary support. Accordingly, Deja Vu notes "very steep lot," and contains a photograph of a failed to meet its burden on its summary judgment steep undeveloped slope without even a billboard. motion, or to raise a genuine issue of material fact in (Nevin Decl., Ex. A, at 4-4.) opposition to the County's motion, on the issue whether any sites in Areas 3 and 6 are unavailable The Court therefore finds the County failed to raise a due to long-term leases. genuine issue of material fact in opposition to Deja Vu's summary judgment motion, and failed to meet (iii) Physical Impediments to Use the burden as the moving party on its motion with re- spect to parcel no. 326-050-11. Accordingly, the Deja Vu next contends "[o]ne parcel in Area 2 is va- Court finds parcel no. 326-050-11 in Area 4 is un- cant land located in a river bed." (McLaughlin Decl., available. As to the remaining unidentified steep sites at 14.) The County maintains the parcel is almost mentioned by Mr. McLaughlin, the Court finds Deja three acres and at least a portion of it "would be suit- Vu failed to raise a genuine issue of material fact in able for construction of structures" even if part of it is opposition to the County's summary judgment mo- located within a floodway. (Def.'s Opp'n, at 31-32.) tion, and failed to meet the burden as the moving The County's argument is weakened by Mr. Nevin's party on its own summary judgment motion. declaration, however, which asserts the site is "mostly located in the river bed." (Nevin Decl., Ex. (iv) Toxic Waste A, Tab 2 (emphasis added).) On the other hand, Deja Vu's expert, Mr. McLaughlin, does not categorically [26] Deja Vu argues portions of some of the areas are state the site is in a floodway or on a flood plain, or unavailable because of toxic waste. The only evid- could not be developed for some other reason. ence offered in support of this argument is Mr. McLaughlin's declaration: It is undisputed the site is mostly located in the river- It appears that hazardous wastes may be present on bed. The parties disagree whether it can be developed or around the sites in Areas 4 and 6, and Area 4 has for a generic commercial enterprise. While neither warning signs posted that there are carcinogens side presented sufficient evidence to prevail on their present in the area. Hazardous wastes are also
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likely to be present in Areas 2, 3 and 7. These sites for purposes of reasonable alternative avenues of must be considered unavailable as alternative aven- communication. David Vincent, Inc. v. Broward ues of communication for Adult Use. County, 200 F.3d 1325, 1334-35 (11th Cir.2000) (McLaughlin Decl., at 15.) (hazardous waste generated by a car repair business). As in David Vincent, there is not enough evidence in However, the County points to Mr. McLaughlin's de- this case to support an inference the hazardous waste position testimony, arguing his opinion about un- would be a prohibitive obstacle to relocation. See id. availability due to the presence of hazardous wastes at 1335. This conclusion is reinforced by Mr. lacks foundation and proper basis. With respect to McLaughlin's own testimony, indicating hazardous Areas 3 and 7, Mr. McLaughlin testified he did not waste contamination issues pervade the commercial observe anything or take any pictures indicating haz- real estate market, and environmental assessments are ardous waste was present. (Def.'s Ex. 12 a normal part of commercial real estate transactions: [McLaughlin Depo., at 107].) The Court therefore Q. Isn't it fair to say, Mr. McLaughlin, that with re- finds Deja Vu's argument lacks evidentiary support spect to--if you are going to buy land these days, with respect to hazardous waste on any sites in Areas you're going to do--before you do that--a little due 3 and 7. However, as to Areas 4 and 6, Mr. diligence on the environmental nature of the land? McLaughlin testified he observed barrels and storage A. One would hope so. of derelict vehicles, which in his experience often Q. Make sure there hasn't been--there isn't a haz- generate hazardous waste. (Id. at 97-103, 105- 07.) ardous waste problem? As to Area 2, he testified he based his opinion on the A. One would hope so. observation one site in Area 2 was used as a service (Def.'s Ex. 12 [McLaughlin Depo., at 107-08; see station. (Id. at 107.) The Court notes exhibits to Mr. also id. at 105].) Since hazardous waste is essentially Nevin's declaration show several sites in Areas 2, 4 an economic issue inherent in the commercial real es- and 6 are occupied by various automotive businesses tate market, it cannot be considered for purposes of and junk yards. Mr. McLaughlin further testified he reasonable alternative avenues of communication. observed carcinogen signs on one site in Area 4. (Id. See Topanga Press, 989 F.2d at 1530. The mere pres- at 97-99.) The Court finds Mr. McLaughlin's depos- ence of hazardous waste, without any evidence as to ition testimony provided sufficient basis for his opin- its extent or showing it is prohibitive to any generic ions. This evidence is therefore admissible. The commercial enterprise, is insufficient as a matter of Court further finds it is sufficient to raise a genuine law to render a site unavailable. Deja Vu therefore issue of fact regarding contamination of some of the has failed to present sufficient evidence to raise a sites in Areas 2, 4 and 6. genuine issue of material fact in opposition to the County's summary judgment motion or to prevail on This issue of fact, however, is not material because, its own summary judgment motion as to this issue. without any information regarding the extent of con- tamination, hazardous waste mitigation is generally a (v) Accessibility matter of the expense of developing a relocation site. The Ninth Circuit has not yet addressed the issue Deja Vu contends a number of sites are not suffi- whether contamination could render a site unavail- ciently accessible because they are landlocked, not able; however, other courts have. See, e.g., Center- accessible by roads serving commercial traffic, or fold Club. Inc. v. City of St. Petersburg, 969 F.Supp. lack public transportation. Although the Ninth Circuit 1288, 1302 (M.D.Fla.1997) (irrelevant whether envir- has not yet considered whether a site with any of onmental contamination would make property more these characteristics is available, it has established a expensive to purchase, lease, or develop). Specific- site must be reasonably accessible to the general pub- ally, the Eleventh Circuit, following Renton and lic. See Isbell, 258 F.3d at 1113; Lim, 217 F.3d at *1138 relying in part on Topanga Press, held having 1055. to clean up hazardous waste generally is not an im- pediment to relocation of "constitutional magnitude" Deja Vu contends a number of sites in Areas 1, 7 and
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8 are landlocked. A truly landlocked site is presum- Area 5 shows them abutting Tavern Road. (Id. Tab ably not available because it would not be accessible 5.) Deja Vu does not attempt to rebut the County's to the general public. On the map, all the sites identi- evidence or explain why these areas are not access- fied by Deja Vu appear landlocked. However, the ible to the public in general, or commercial traffic in County's evidence suggests the sites are accessible. particular. As the burden is on Deja Vu to show a site As to sites in Area 1 (parcels no. 141-210-23 and would not reasonably become available, the Court 141-210-09), its photographs show they are access- finds it failed to present sufficient evidence to prevail ible by a dirt road. (Nevin Decl., at 2 & Ex. A, Tab on its summary judgment motion or to raise a genu- 1.) As to sites in Area 7 (parcels no. 483-022-35, ine issue of material fact in opposition to the County's 483-071-05, 483-071- 09), the photographs show motion with respect to accessibility of the sites in cars, existing businesses and structures. (Id. Tab 7.) Areas 3 and 5. Although the County's evidence is circumstantial, it is more substantial than a mere "scintilla of evidence" Deja Vu next contends Areas 3, 6, and 7, or portions raising "some metaphysical doubt as to material thereof, are unsuitable for commercial use because facts." See Anderson, 477 U.S. at 252, 106 S.Ct. adequate parking is not available. (McLaughlin Decl., 2505; Matsushita, 475 U.S. at 586, 106 S.Ct. 1348. at 13.) A site must comply with the zoning ordinance Reasonable inferences which can be drawn from it in question to be available. Isbell, 258 F.3d at 1113 n. support the County's claim the sites are not land- 3; Lim, 217 F.3d at 1055. Deja Vu's argument is un- locked. Deja Vu does not address this evidence. As dercut by its expert's deposition testimony. Mr. the burden is on Deja Vu to show a site would not McLaughlin admitted, at least as to some of the sites, reasonably become available, the Court finds it failed parking garages could be built above the surface to present sufficient evidence to prevail on its sum- parking lots, underground parking structures could be mary judgment motion or to raise a genuine issue of built below the buildings, or a commercial business material fact in opposition to the County's motion could use a nearby parcel to provide parking for the with respect to sites in Areas 1 and 7. site. (Def.'s Opp'n, at 34 (citing Ex. 12, at 51-52, 55, 57-60; Ex. 13 [Zoning Ordinance § 6785(a) ] ).) With As to the sole site in Area 8, the County makes no ar- respect to these sites, the parking issue does not go to gument and points to no evidence suggesting it is ac- the availability of the site, but to the economic impact cessible. The *1139 photograph of the site does not of relocation on the site, an issue which cannot be show the presence of any road, vehicle or functional considered in this analysis. Topanga Press, 989 F.2d structure, and it is not clear from the map of the area at 1529. Deja Vu does not address Mr. McLaughlin's whether the site abuts a road. (Nevin Decl., Ex. A, testimony in its papers. Furthermore, the photographs Tab 8). Neither side presented any evidence regard- of many of the sites in these areas show vacant sur- ing the existence of easements, which may render an face parking. (Def.'s Opp'n, at 34 (citing Nevin Decl., apparently landlocked parcel accessible or inaccess- Ex. A, Tabs 3, 6 & 7).) Deja Vu does not address this ible. With respect to the sole site in Area 8, the Court evidence. As the burden is on Deja Vu to show a site therefore finds neither side presented sufficient evid- would not reasonably become available, the Court ence in support of its respective summary judgment finds it failed to present sufficient evidence to prevail motion. on its summary judgment motion or to raise a genu- ine issue of material fact in opposition to the County's Deja Vu next contends Areas 3 and 5 are only access- motion with respect to parking for the sites in Areas ible by roads which do not serve commercial traffic. 3, 6 and 7. (McLaughlin Decl., at 15.) Deja Vu does not contend these areas are not accessible by a road. The County's Last, Mr. McLaughlin makes a cryptic remark in his evidence shows Area 3 as a developed office park declaration that "[n]o public transit is apparent in any near Rancho Bernardo. The photographs show roads, of the Areas." (McLaughlin Decl., at 15.) Deja Vu parking lots and cars. (Nevin Decl., Ex. A, Tab 3.) does not elaborate on this in its points and authorities, The aerial photograph of the two sites comprising and offers no case law to suggest public transporta-
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tion is necessary before a site is considered access- thirteen existing businesses were presented with a ible. The Court's own research has revealed no au- "small handful" of available sites which could oper- thority necessitating access by public transportation. ate simultaneously in light of the 1,000-foot separa- Since Deja Vu does not argue public transit is neces- tion requirement. 861 F.2d at 1103, 1108. The court sary, this issue is waived for purposes of this motion. held this did not allow for reasonable alternative av- See Indep. Towers of Wash. v. Washington, 350 F.3d enues of communication. Id. at 1110. Similarly in To- 925, 929 (9th Cir.2003). panga Press, at least 102 adult entertainment busi- nesses were competing for approximately 120 avail- (vi) Other able sites, which could not operate simultaneously due to the 1,000-foot separation requirement. 989 Mr. McLaughlin also opined one site in Area 7 is not F.2d at 1533. The court again found this was not suf- available because the building *1140 on the site ficient. Id. straddles parcel lines "in a way that disqualifies most of the structure and a portion, if not all, of the one On the other hand, in Young v. City of Simi Valley storefront that might otherwise qualify as an Adult and Diamond, the court was faced with a situation Use site." (McLaughlin Decl., at 13-14.) This is an- where the first adult entertainment applicant sought a other point Deja Vu does not elaborate on in its permit under a new zoning ordinance. In Young, four points and authorities. Since Deja Vu does not available sites, which could operate simultaneously, present any argument or legal authority to show why were held sufficient as a matter of law for the loca- this site is unavailable, this issue is waived for pur- tion of the sole applicant in the absence of any evid- poses of this motion. See Indep. Towers of Wash., ence the ordinance otherwise had a chilling effect. 350 F.3d at 929. 216 F.3d 807, 811, 818 n. 10, 822-23 (9th Cir.2000). In Diamond, the court held the separation require- Based on the foregoing, three of the thirteen sites in ment was irrelevant in determining the number of Area 4 (parcels no. 326-050-11, 326-050-12 and sites because there was only one applicant, and held a 326-060-18) and one of the fourteen sites in Area 7 total of seven available sites was constitutionally suf- (parcel no. 483-071-11) have been disqualified. In ficient. 215 F.3d at 1056-57. addition, issues of fact exist as to one of the eighteen sites in Area 2 (parcel no. 281-182-14), both sites It is undisputed only Deja Vu is in need of a reloca- comprising Area 5, and the sole site in Area 8. tion site. Three adult entertainment businesses have ever operated in the unincorporated San Diego b. Sufficiency of the Available Sites County: Fantasyland, Deja Vu, and Innspot East, "Once the areas that are not part of the market are ex- which was annexed into the City of Lemon Grove in cluded, the question becomes whether the remaining 1981. All three businesses are still in existence. There acreage provides the Adult Businesses with a reason- have never been any other adult entertainment busi- able opportunity to relocate." Topanga Press, 989 nesses in the unincorporated San Diego County. Only F.2d at 1532. "There is no constitutional requirement Innspot East and Deja Vu applied for an adult enter- that [the government] make available a certain num- tainment license in the last 25 years. Fantasyland was ber of sites." Diamond, 215 F.3d at 1056. exempt from this requirement pursuant to a settle- ment with the County. (See Pelowitz Decl., at 1-2.) The parties disagree as to the method the Court At the time the ordinance was amended, only Fanta- should apply to address this issue. The four Ninth syland and Deja Vu were operating in the unincor- Circuit decisions applying the Renton standard have porated San *1141 Diego County. (Joint Stmnt of addressed two types of cases. In Walnut. Properties Undisputed Facts, at 5.) It is undisputed Fantasyland and Topanga Press, the Ninth Circuit addressed the is exempt from the requirements of the amended zon- situation where numerous adult entertainment busi- ing ordinance pursuant to the settlement, which nesses were competing for a relatively small number leaves only Deja Vu in need of a relocation site. (See of available relocation sites. In Walnut Properties, Pls.' Joint Opp'n, at 26 n. 24.)
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Neither side presented any evidence of additional shows only up to two could operate simultaneously. businesses or individuals interested in operating an (Cf. Supplemental Hulse Decl., at 2; Def.'s Ex. 14 adult entertainment business in the unincorporated and McLaughlin Decl. at 15.) As to Area 7, the area of the San Diego County. Given the small num- County's evidence shows it could support up to two ber of businesses ever to apply for an adult entertain- businesses simultaneously, while Deja Vu's evidence ment license, the Court finds the fact Deja Vu is not shows it could support only one. (Cf. Supplemental the first business ever to apply, but is the sole busi- Hulse Decl., at 2; Def.'s Ex. 15 and McLaughlin De- ness required to relocate after the amendment, is a cl., at 15.) Accordingly, if Deja Vu's evidence is be- distinction without a difference. Accordingly, the in- lieved, at most eight adult entertainment businesses stant case is factually more akin to Young and Dia- can operate simultaneously on the total 68 sites. Deja mond than to Topanga Press and Walnut Properties. Vu does not contend Fantasyland's present location [FN12] further diminishes the number of sites which can op- erate simultaneously. If the County's evidence is be- FN12. Diamond and Young each approached lieved, the largest possible number of simultaneously differently the issue which number of sites is occupied sites is ten. Since only Deja Vu seeks a re- relevant when only one business seeks a loc- location site, it can choose among all the available ation. In Diamond, the court applied the sites. No matter which party's evidence is believed, total number of available sites, and in Young the number of sites which could be simultaneously it applied the number which can operate occupied by adult entertainment businesses in this simultaneously under the separation require- case is greater than the number found sufficient in ments of the zoning ordinance. Although the Diamond and Young. two approaches result in a vastly different number of sites in this case, the Court finds [27] However, "[d]ata regarding the number of sites the difference is not relevant. For purposes available for adult use is meaningless without a con- of this analysis, the Court will follow the ap- textual basis for determining whether that number is proach taken in Young, as the more recent of sufficient for that particular locale." Young, 216 F.3d the two cases. at 822. Supply and demand, therefore "should be only one of several factors that a court considers when de- After the four excluded sites are accounted for, 72 of termining *1142 whether an adult business has a the 76 sites remain available. If the four additional 'reasonable opportunity to open and operate' in a par- sites as to which there is an issue of fact are also ex- ticular city." Id. (quoting Topanga Press, 989 F.2d at cluded for purposes of the analysis, 68 sites remain 1529). "A court should also look to a variety of other available in six areas: 1, 2, 3, 4, 6 and 7. It is undis- factors including, but not limited to, the percentage of puted due to the 1,000-foot separation requirement available acreage theoretically available to adult busi- between adult entertainment businesses, Areas 1, 3 nesses, the number of sites potentially available in re- and 6 can simultaneously support only one adult en- lation to the population, community needs, the incid- tertainment business each. (McLaughlin Decl., at 15; ence of [adult businesses] in other comparable com- Hulse Decl., at 3.) It is also undisputed Area 4 is munities, [and] the goals of the city plan." Young, large enough for two businesses to operate simultan- 216 F.3d at 822 (internal quotations omitted). eously, provided they are located at opposite ends of the area. (Id.) However, if an adult entertainment [28] The parties presented evidence of the percentage business were to locate in the center of Area 4, then of the available acreage and the number of potentially only one business could operate in that area. available sites in relation to the population in the un- (McLaughlin Decl., at 15.) The parties disagree on incorporated San Diego County. The parties agree the how many adult entertainment businesses could oper- unincorporated area encompasses 2,286,059 acres, ate simultaneously in Areas 2 and 7. The County's with 2,318.66 acres zoned for industrial use. In addi- evidence shows up to three businesses could operate tion, the County offers, and Deja Vu does not dis- simultaneously in Area 3, while Deja Vu's evidence pute, 2,764.86 acres are zoned for commercial use.
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After the four disqualified sites are accounted for, the population of 446,080 based on the 2000 census, and 72 remaining sites amount to a total of 235.16 acres a population of 674,440 under the heading of "April available for adult entertainment use. If the additional 2004 Working Copy." (Def.'s Ex. 17.) The County four sites as to which there are questions of fact are explains this heading refers to "the maximum popula- also excluded, the remaining acreage is 227.03. The tion (674,440) the unincorporated area of the County parties disagree whether the relevant comparison is will be able to accommodate if the Proposed General between the available sites and the total acreage of Plan is enacted by the Board of Supervisors." the unincorporated area, or the total acreage which (Supplemental Hulse Decl., at 3.) Deja Vu does not could potentially be available to adult entertainment address the County's explanation, and does not offer businesses if it were not for the amended zoning or- any explanation why it chose this population number. dinance. While Young states the pertinent factor is It is plain the pertinent population number is the ex- "the percentage of available acreage theoretically isting *1143 population, most recently estimated at available to adult businesses," 216 F.3d at 822, it 470,000. Based on the actual population, the 227.03 does not expressly answer this issue. Furthermore, in acres of potentially available sites amounts to approx- Walnut Properties, the court relied on the acreage of imately 4.83 acres per 10,000 persons. [FN13] the entire municipality. See 861 F.2d at 1108; see also Renton, 475 U.S. at 53, 106 S.Ct. 925. The issue FN13. Deja Vu's calculation, based on a presented here, however, was not addressed in either population of 674,440 and available adult case, and the choice was made without discussion. entertainment acreage of 233.4 acres, ap- The purpose of the comparison ultimately is to de- pears to be in error, even if the Court were termine whether an adult business has a "reasonable to accept its underlying premises. Deja Vu opportunity to locate," and the focus is on the "actual contends these numbers yield 0.35 acres per business real estate market" where a generic commer- 10,000 persons. (Pls.' Joint Mot., at 30.) The cial enterprise could potentially operate. See Isbell, correct calculation is: 233.4 acres divided by 258 F.3d at 1112-13. The Court therefore finds the 674,440 persons, multiplied by 10,000 per- areas which would not be available to a generic busi- sons, which yields 3.46 acres per 10,000 ness should be excluded. In this case, the relevant persons. comparison is therefore made between the acreage of In its opposition to the County's motion, Deja Vu of- the available sites and the total industrially- and com- fers a comparison chart comparing the acreage and mercially-zoned acreage in the unincorporated area, population statistics of this case to those of Walnut which totals 5,083.52 acres. Based on this comparis- Properties and Renton. The comparison, however, is on, Deja Vu will be able to consider sites located on irrelevant as a matter of law because each case must 4.46% of the total industrially and commercially be examined on its own facts. See Young, 216 F.3d at zoned acreage. 821, 822 ("Renton requires a case by case analysis;" In comparing the acreage available to adult entertain- the inquiry is "whether that number is sufficient for ment businesses to the population, the parties dis- that particular locale"). Furthermore, neither in agree about the population of the unincorporated Renton nor in Walnut Properties were the circum- area. Deja Vu bases its comparison on 674,440 stances analogous to the unincorporated County. In people, taken from a population summary chart on Walnut Properties thirteen businesses were vying for the County's website. (See McLaughlin Decl., at 5.) "a small handful" of sites, with supply apparently not The County, relying on the estimate of the California meeting the demand. 861 F.2d at 1104, 1108. On the Department of Finance, contends the population is other hand, in Renton the supply was far greater than 470,000 as of January 1, 2004. (Def.'s Opp'n, at 36 the demand. 475 U.S. at 52-53, 106 S.Ct. 925. For all (citing Manicom Decl., at 3 & Ex. 1; Def.'s Ex. 16).) of the above reasons, the statistics which can be de- However, when the population summary chart on the rived from these two cases cannot be viewed as de- County's website is examined, it shows an existing fining the scope of what constitutes reasonable altern- ative avenues of communication in this case.
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Given the evidence presented by the parties, includ- entertainment businesses. 493 U.S. 215, 220, 110 ing the history of scant demand for adult entertain- S.Ct. 596, 107 L.Ed.2d 603 (1990). "A scheme that ment licenses, the lack of evidence showing others fails to set reasonable time limits on the decision- wish to open an adult entertainment business in the maker creates the risk of indefinitely suppressing per- unincorporated County, the number of potentially missible speech." Id. at 227, 110 S.Ct. 596. Two es- available sites and their acreage, the total industrial sential procedural safeguards are required for a valid and commercial acreage and population in the unin- licensing scheme. Id. First, "the licensor must make corporated area, the Court finds the County met its the decision whether to issue the license within a spe- burden in opposition to Deja Vu's summary judgment cified and reasonable time period during which the motion and in support of its own summary judgment status quo is maintained." Id. at 228, 110 S.Ct. 596. motion to show the number of sites available to adult Second, "there must be the possibility of prompt judi- entertainment businesses under the amended ordin- cial review in the event that the license is erroneously ance is sufficient to provide reasonable alternative denied." Id.; see also City of Littleton v. Z.J. Gifts D- avenues of communication. [FN14] 4. L.L.C., 541 U.S. 774, 781-82, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004). FN14. For purposes of reaching this conclu- sion, the Court assumed Deja Vu could dis- Under the licensing scheme in FW/PBS, licenses qualify at trial the four sites as to which it were to be issued within thirty days following the re- raised an issue of fact. Accordingly, the fac- ceipt of an application, and after the premises were tual issues pertaining to those sites are not inspected and approved by the health, fire, and build- material, because they could not affect the ing officials. There was no time limit for completing outcome of this case. See Anderson, 477 the inspections, and applicants had no way to ensure U.S. at 248, 106 S.Ct. 2505. the inspections would occur within the thirty-day period. FW/PBS, 493 U.S. at 227, 110 S.Ct. 596. As a C. Procedural Safeguards result, a license could be postponed indefinitely. Id. at 229, 110 S.Ct. 596. The ordinance was found un- [29] The amended ordinance requires an administrat- constitutional because it did not "provide for an ef- ive permit to establish, operate, enlarge, or transfer fective limitation on the time within which the li- ownership or control of an adult entertainment estab- censor's decision must be made," and because it lishment. A permit application must be approved if failed "to provide an avenue for prompt judicial re- the adult entertainment business location meets the view so as to minimize suppression of the speech in distance and separation requirements of the amended the event of a license denial." Id. ordinance. Deja Vu challenges the provision of the amended ordinance, which outlines the applicable ad- The principles discussed in FW/PBS were applied by ministrative permit procedure, claiming it fails to the Ninth Circuit in Kev, Inc. v. Kitsap County. The provide for a "timely decision" on an application and ordinance in Kev required erotic dancers and operat- precludes prompt access to the courts. (Pls.' Joint ors of erotic dance studios to obtain licenses, but Mot., at 26.) The County maintains the ordinance re- there was a five-day waiting period to obtain licenses quires it to act on a permit application within a reas- after filing applications. 793 F.2d at 1060. Because onable time, and the time allowed for the County to the government "failed to demonstrate a need" for consider an appeal is also reasonable. The County curtailing the dancers' First Amendment rights for moves for summary judgment and a finding the per- five days while an application was pending, the court mit application process of the amended ordinance is declared the five-day waiting period for dancers un- constitutional. Deja Vu cross-moves for a finding it is constitutional. Id. The five-day waiting period for the an unconstitutional prior restraint on speech. operators was found constitutional because the gov- ernment "presented a sufficiently compelling justific- *1144 In FW/PBS, Inc. v. City of Dallas, the ation." Id. at 1060 n. 6. The government anticipated plaintiffs challenged a licensing ordinance for adult topless dancing establishments were likely to require
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a "significant reallocation of law enforcement re- The time limit for the County to act on a sources," and five days was a reasonable time for the permit application begins to run when the government to make adjustments given its limited re- application is "accepted as complete." Ni sources. Id. The court also noted there was "no reason Orsi v. City Council of the City of Salinas, for a new studio operator not to apply for a license 219 Cal.App.3d 1576, 1585, 268 Cal.Rptr. one week before he plans to open his facility." Id. 912 (1990). Accordingly, Kev places the burden on the govern- Although the Director can act sooner, he or ment to explain the time period it needs to decide she can wait thirty days until the permit ap- whether to grant or deny a license application. Kev, plication is deemed complete by operation 793 F.2d at 1060. of law. At that time, the forty days in which the Director must hold a public hearing be- In this case, the parties do not agree what period of gins to run. Assuming the Director holds the time is allowed under the amended ordinance to hearing on the fortieth day, the Director make a licensing decision. Deja Vu contends the must make a ruling within ten days follow- County has eighty days to act on an application plus ing the hearing. Thus, the County can take another sixty days to consider an appeal, for a total of as many as eighty days (i.e., 30 + 40 + 10) 140 days. The County maintains it has seventy days to make a decision on a permit application. to make the decision on a permit application plus If an administrative permit is denied, the sixty days to consider an appeal, for a total of 130 County then has another sixty days to make days. This factual dispute is not material. Even if the a determination on an appeal, which means Court assumes the County is correct, and the applic- an applicant could potentially be unable to able period is 130 days, [FN15] the County presented seek judicial review for 140 days (i.e., 30 + no *1145 evidence to show why it needs so much 40 + 10 + 60). The County's interpretation time and why this period is reasonable. of these two sections results in a maximum 130-day period because the County contends FN15. The parties' respective calculations of the ten-day period for issuing a decision "is the time period are as follows: The amended not tacked on to the earlier 40-day period." zoning ordinance states in pertinent part, a (Def.'s Opp'n, at 24.) permit application "shall be acted upon by the Director following a public hearing with- Because permit issuance is conditioned solely on a in forty (40) days following receipt of the finding of compliance with nondiscretionary distance complete application pursuant to Section criteria, i.e., the distance and separation from spe- 65943 of the Government Code .... The dir- cified land uses, Deja Vu argues the time to rule on ector shall make his ruling within ten (10) the permit application "exceeds the brief, reasonable days following the hearing." (LR, at 24 period contemplated by FW/PBS for a permit de- [Ordinance No. 9469, § 6930(b)(1) ].) In cision." (Pls.' Joint Mot., at 26.) On the other hand, pertinent part, California Government Code the County contends thirty days to determine whether Section 65943(a) states: a permit application is complete is not "subject to the Not later than 30 calendar days after any FW/PBS time limitation," and the forty days to make public agency has received an application a decision meets the reasonableness standard based for a development project, the agency shall on subsequent case law, which found longer time determine in writing whether the application periods constitutional. The County cites no relevant is complete and shall immediately transmit authority to support its argument the thirty days to the determination to the applicant for the de- determine whether an application is complete should velopment project. If the written determina- not be counted for purposes of the reasonableness in- tion is not made within 30 days after receipt quiry under FW/PBS. The standard set forth in FW/ of the application, ... the application shall be PBS requires the procedure "provide for an effective deemed complete ....
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limitation on the time within which the licensor's de- performing background checks, making identification cision must be made" and "provide for prompt judi- cards, and policing design, layout, and zoning ar- cial review," which suggests it would be relevant to rangements." Id. This case is distinguishable because consider all applicable time periods from the submis- the County's application review entails only the de- sion of the application until judicial review becomes termination if the distance and separation require- available to the applicant. 493 U.S. at 229, 110 S.Ct. ments are met, and does not include the kind of 596. checks which justified a longer time frame in TK's Video. The County also cites three cases to support its argu- ment: Redner v. Dean, 29 F.3d 1495 (11th Cir.1994); In Wolff, the operator of an adult video store chal- TK's Video v. Denton County, Tex., 24 F.3d 705 (5th lenged an ordinance which allowed the government Cir.1994); Wolff v. City of Monticello, 803 F.Supp. ninety days to grant or deny a license. 803 F.Supp. at 1568 (D.Minn.1992). None of these cases supports 1570, 1574. The district court noted "[t]he ninety-day the County's position. time period prescribed in the ordinance does not ap- pear to be unreasonable per se." Id. at 1574. The ordinance at issue in Redner placed a 45-day However, it nevertheless found the ordinance uncon- time limit on the government's decision to grant or stitutional because it made "no provision for the con- deny an application, which was found constitution- tinued operation of an existing adult use pending the ally reasonable. [FN16] 29 F.3d at 1497-98, 1501. In completion of the application process." Id. at 1575. the 45 days, the government was to determine wheth- er the adult entertainment business *1146 complies The County's cases do not reach the heart of the issue with the building, fire, health and zoning regulations. raised by Deja Vu: the reasonableness of the delay to Id. at 1497. The Redner ordinance is distinguishable issue permits under the circumstances of this case. because all the County has to do before deciding Compliance with the distance and separation require- whether to issue a permit in this case, is to determine ments, the only factor in the permit decision, can be whether the business meets the distance and separa- quickly verified through the County's GIS system, tion requirements of the zoning ordinance. (See LR, which measures the distance between two points. at 25 [Ordinance No. 9469, § 6930(b)(2) ].) (See, e.g., Supplemental Hulse Decl., at 2.) In addi- tion, Deja Vu submitted a copy of a Final Decision of FN16. The court found the ordinance uncon- the Zoning Administrator dated August 9, 2001, stitutional because of two other provisions which indicates on one occasion the Director made a which created the risk expressive activity final determination on an administrative permit ap- could be suppressed for an indefinite period plication only nine days after it was received for pro- of time: the ordinance only provided the ap- cessing. (Manicom Reply Decl., Ex. 5.) Deja Vu also plicant "may be permitted" to begin operat- points to the San Diego Municipal Code Section ing if the government did not make a de- 123.0306, which requires the City Manager to ap- cision within 45 days, and the ordinance prove or deny an application for a Zoning Use Certi- only provided for an appeal to be heard "as ficate for an adult entertainment establishment in soon as the Board's calendar will allow." Id. only fifteen business days after receipt. at 1501. On the other hand, the County has offered no evid- TK's Video is distinguishable for the same reasons as ence to show why it needs 130 days for the entire Redner. The licensing ordinance in TK's Video process. The only explanation it presented for the provided the government sixty days following receipt lengthy time frame is the unsupported statement the of an application to issue an operating license, unless sixty days allowed to consider an appeal is reason- certain disqualifying factors were found. 24 F.3d at able "given the fact an appeal to the County's elected 708. This did not place an undue burden on speech Board is involved." because "[l]icensing entails reviewing applications,
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The Court therefore finds the County presented no The motion is based on comments made by legislat- evidence to show the time period for issuing a permit ors before enacting the amendment, and on the fact pursuant to the amended ordinance is reasonable, an Deja Vu is the only adult entertainment business issue as to which it bears the burden at trial. Due to which must relocate as a result of the amendment. the lack of evidence on this point, the County failed Deja Vu acknowledges courts will not generally look to meet its burden as the moving party on summary to the motives of legislators in enacting an ordinance, judgment, and has also failed to raise a genuine issue but argues an exception applies "in cases involving of material fact in opposition to Deja Vu's cross- spot zoning or discrimination against an individual or motion. The Court finds Ordinance No. 9469, Sec- a particular land parcel." (Id.) In opposition, the tions 6930(b)(1) and 7064, unconstitutional, to the County points to Deja Vu's evidence to argue the extent it fails to impose reasonable time limits on the County did not have any particular adult entertain- decisionmaker to act on administrative permit applic- ment business in mind when it enacted the amend- ations, as required by FW/PBS. ment. The County presented no evidence of its own.
[30] Neither party addresses whether invalidating the Deja Vu relies on California law, which recognizes a time periods specified in sections 6930(b) and 7064 claim for discrimination against a particular parcel of results in striking the entire ordinance or severing the property. See, e.g., G & D Holland Constr. Co. v. *1147 unconstitutional provisions. The Legislative City of Marysville, 12 Cal.App.3d 989, 994, 91 Record provided by the County does not include a Cal.Rptr. 227 (1970) ( "The principle limiting judi- severability clause applicable to Ordinance No. 9469. cial inquiry into the legislative body's police power However, its absence does not automatically preclude objectives does not bar scrutiny of a quite different severance. See Barlow v. Davis, 72 Cal.App.4th issue, that of discrimination against a particular par- 1258, 1264, 85 Cal.Rptr.2d 752 (1999). The severab- cel of property" and "the courts will give weight to ility "determination depends on whether the re- evidence disclosing a purpose other than that appear- mainder is complete in itself and would have been ing upon the face of the regulation" "where 'spot zon- adopted by the legislative body had the latter fore- ing' or other restriction upon a particular property seen the partial invalidity of the statute." Id. (internal evinces a discriminatory design against the property quotation marks, citations and alterations omitted). user"). However, Deja Vu does not allege a Califor- Based on the Legislative Record, and review of the nia spot zoning claim in its complaint. Instead, it al- affected ordinance, the Court finds the unconstitu- leges the amendment violates the freedom of speech tional procedural provisions severable. Specifically, provisions of the federal and California constitution. the remainder of the ordinance (the substantive zon- (First Am. Compl., at 20-21, 23.) As the spot zoning ing provisions) is sufficiently complete in itself, and under California common law is not alleged in the the County likely would have adopted the amended complaint, and Deja Vu does not seek to amend it, its zoning ordinance, even if it had foreseen some of its motion for summary judgment is denied to the extent procedural provisions would be invalidated. it is based on this claim.
D. Spot Zoning [31] In the alternative, even if Deja Vu alleged a spot zoning claim under California law, the evidence it Deja Vu alleges the County enacted the zoning presented is insufficient to meet its burden as the amendments "solely for the illegitimate purpose of moving party on summary judgment. Since Deja Vu forcing Plaintiffs to cease their authorized use of the would bear the burden of proof at trial as to its spot Property, rather than for any legitimate governmental zoning claim, it "must make a showing sufficient for purpose." (First Am. Compl., at 15.) Deja Vu moves the Court to hold that no reasonable trier of fact could for summary adjudication of this claim, and argues find other than for the moving party," and "must es- the County's zoning ordinance amendments are a tablish beyond peradventure all of the essential ele- clear case of "invalid spot zoning," which should be ments of the claim ... to *1148 warrant judgment in enjoined from enforcement. (Pls.' Joint Mot., at 31.) its favor." Pecarovich, 272 F.Supp.2d at 985 (internal
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quotation marks, alterations and citations omitted); critical that our regulations stay within the bound- see also C.A.R. Transp. Brokerage, 213 F.3d at 480. aries of the law. They must be defensible. Other- wise the County is not able to enforce and to, bot- Deja Vu relies on two pieces of evidence in support tom line, to protect our children and our communit- of its spot zoning claim. First, it relies on a memor- ies. This will, I think, within the constitutional andum to the Board of Supervisors from two mem- rights that are guaranteed by the courts, will protect bers wishing to add an item to an agenda "Getting our communities as much as possible. I think that Tough on Adult Entertainment Establishments." the next most important thing is ... to have aggress- (Manicom Decl., Ex. 2, at 1.) The memorandum ex- ive enforcement.... presses dissatisfaction with the "current process" for (LR, at 1931-38.) "the citing of Adult Entertainment Establishments" because there is no provision for "public input and Contrary to Deja Vu's assertion, these statements are notification." (Id. at 2.) The last paragraph states: not susceptible to an interpretation that would yield a The County must protect its citizens by creating the scintilla of evidence or a reasonable inference the most restrictive ordinance possible within the County was discriminating against it. See Anderson, boundaries of the law. While the Major Use Permit 477 U.S. at 252, 106 S.Ct. 2505. To the contrary, the will allow for public input, the County must do only reasonable interpretation is the County intended everything within its authority to minimize the ad- the zoning ordinance as amended to apply to all adult verse impacts caused by Adult Entertainment Es- entertainment businesses. Although it appears Deja tablishments. Rewriting the current ordinance will Vu has been affected disproportionately because it is further protect unincorporated citizens. the only business which must change its location, all (Id.) Deja Vu also cites comments by Supervisor Jac- adult entertainment businesses are subject to the same ob during a meeting of the County Board of Super- restrictions, and there is nothing to suggest Deja Vu visors on June 12, 2002: was singled out. Consequently, Deja Vu has failed to A few months ago it came to our attention that we meet its burden as the moving party on summary had a defective ordinance in regards to adult enter- judgment with respect to a spot zoning claim under tainment establishments and that's why in March, California law. the Board of Supervisors unanimously directed our staff and our legal counsel to come back with the *1149 To the extent Deja Vu intended to base its mo- toughest, the strictest ordinance and regulations for tion consistently with its complaint on a spot zoning adult entertainment businesses that we could pos- claim under the free speech provision of the First sibly have that would be upheld if challenged in a Amendment, Renton rejected a similar argument. The court of law.... Supreme Court reversed a Ninth Circuit finding that the predominate concern with secondary effects of ****** adult entertainment businesses was not enough to These establishments, first of all, are not wanted in sustain the ordinance: any of the communities and I think that is a fore- According to the Court of Appeals, if "a motivating gone conclusion. But the courts have ruled that we factor " in enacting the ordinance was to restrict re- must allow them in certain areas and we do know spondents' exercise of First Amendment rights the that we had a zoning ordinance that was invalid ordinance would be invalid, apparently no matter and therefore what that created is that every piece how small a part this motivating factor may have of property in every zone, whether it be residential, played in the City Council's decision. This view of commercial, industrial, was fair game for the estab- the law was rejected in United States v. O'Brien, lishment of an adult entertainment business. So, the very case that the Court of Appeals said it was with what we have before us, in my view does applying: meet the test of being the toughest, the most re- "It is a familiar principle of constitutional law that strictive ordinance and regulations that we can this Court will not strike down an otherwise consti- have that have been court tested. I think that it is tutional statute on the basis of an alleged illicit le-
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gislative motive...." ment] is considered a prior restraint because the en- joyment of protected expression is contingent upon ..... the approval of government officials. While prior "... What motivates one legislator to make a speech restraints are not unconstitutional per se, any sys- about a statute is not necessarily what motivates tem of prior restraint comes to the courts bearing a scores of others to enact it, and the stakes are suffi- heavy presumption against its constitutional valid- ciently high for us to eschew guesswork." ity. Like other regulations upon [adult entertain- Renton, 475 U.S. at 47-48, 106 S.Ct. 925 (internal ment], prior restraints can be imposed only if they citations omitted) (quoting O'Brien, 391 U.S. at are reasonable time, place and manner restrictions. 383-84, 88 S.Ct. 1673). For the foregoing reasons, In addition, an adult entertainment licensing *1150 Deja Vu's motion for summary judgment on the spot scheme must contain at least two procedural safe- zoning claim is denied. guards. First, a decision to issue or deny a license must be made within a brief, specified and reason- VII. Licensing and Registration Requirements ably prompt period of time. Second, there must be In their respective operative complaints, all plaintiffs prompt judicial review in the event a license is challenge on its face the constitutionality of those denied. sections of the amended ordinance, which require all Clark v. City of Lakewood, 259 F.3d 996, 1005 (9th adult entertainment establishments and their owners, Cir.2001) (internal citations omitted). The instant managers, performers, and employees to obtain a li- cross-motions raise three issues pertaining to the li- cense, and which additionally require each entertainer censing requirements: (1) whether plaintiffs have and each manager to complete a registration form be- standing to challenge some of the provisions; (2) fore starting work. [FN17] Plaintiffs contend these whether the licensing requirements constitute reason- requirements constitute an unconstitutional restriction able time, place, and manner restrictions; and (3) on the time, place, and manner of protected speech, whether they provide sufficient procedural safe- and fail to provide for constitutionally-required pro- guards. cedural safeguards under the freedom of speech, A. Standing press and expression provisions of the federal and California constitutions. The County moves for sum- The County contends all plaintiffs lack standing to mary judgment of plaintiffs' challenges, and all the extent they challenge the licensing provisions, plaintiffs cross-move for summary judgment of this which prohibit issuing a license to any minor or to claim. any "officer, director, general partner or other person who will manage or participate directly in the de- FN17. According to plaintiffs, a "stay of en- cisions relating to management and control of the forcement" has been in effect as to the li- business" and who has been convicted of specified censing requirements since the outset of this crimes. Any plaintiff challenging the licensing provi- litigation. As a result, the licensing require- sions on these grounds would have to show he or she ments have not actually been applied to was either a minor or convicted of a specified crime. them. Plaintiffs reserve the right to bring "as See FW/PBS, 493 U.S. at 233-34, 110 S.Ct. 596. applied" challenges should a controversy None of the plaintiffs made a showing along these arise in the future. (Pls.' Joint Mot., at 7 n. lines. However, upon review of plaintiffs' papers, it is 4.) apparent they do not challenge the licensing provi- Licensing requirements, such as the licensing provi- sions on these grounds. The County's standing argu- sions of the amended ordinance in this case, are con- ment is therefore inapplicable in this case. sidered prior restraints on speech, and are pre- B. Reasonable Time, Place, and Manner Restriction sumptively unconstitutional: A licensing scheme regulating [adult entertain- Plaintiffs contend the licensing provisions are uncon-
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stitutional for three reasons: (1) they are unnecessar- ance: ily burdensome and redundant; (2) they require dis- (F) ... If a person who wishes to operate an adult closure of personal information which could poten- entertainment establishment is other than an indi- tially be made publicly available under California vidual, each officer, director, general partner or law; and (3) obtaining and maintaining a license de- other person who will manage or participate dir- pends on compliance with the hours-of-operation, in- ectly in the decisions relating to management and terior configuration and zoning provisions, which control of the business shall sign the application for plaintiffs maintain are unconstitutional. As to the last a license as applicant. Each applicant must be qual- argument, the Court has determined above the hours- ified under Section 21.1804 and each applicant of-operation, interior configuration and substantive shall be considered a licensee if a license is gran- zoning provisions are constitutional, and therefore re- ted. jects plaintiffs' challenge to the licensing and registra- (LR, at 149, 151 [Ordinance No. 9479, § 21.1803].) tion requirements to the extent it is based on those The definition of the term "licensee" includes "the in- provisions. dividual or individuals listed as an applicant on the application for a[n] adult entertainment establishment 1. Narrowly Tailored--Burdensome and Redundant license." (Id. at 147 [§ 21.1802(F) ].) These provi- sions, read together, clearly indicate each officer, dir- [32] Plaintiffs argue the licensing requirements are ector, general partner or manager is an "applicant." broader and more onerous than justified by the signi- Under subsection (C), each applicant must file the ap- ficant governmental interests the County intended to plication in person: address. The dispute is therefore focused on the issue An applicant for an adult entertainment establish- whether the County's licensing requirements are "nar- ment license ... shall file in person at the office of rowly tailored" to "serve a substantial government in- the County Sheriff a completed application made terest" under Renton, 475 U.S. at 50-52, 106 S.Ct. on a form provided by the County Sheriff. The ap- 925. plication shall be signed by the applicant. The purpose of the amended licensing provisions in (Id. at 149 [§ 21.1803(C) ].) large part is to ensure no minors or individuals con- The Ninth Circuit has not yet addressed the issue victed of certain crimes, such as drug dealing, prosti- whether the requirement for each officer, director, tution, rape, or pandering, work in adult entertain- general partner or manager to appear in person is un- ment establishments, to facilitate identification of constitutionally burdensome. Plaintiffs rely on two witnesses and suspects connected to criminal activity Seventh Circuit decisions, neither of which directly found to be associated with adult entertainment busi- addresses the issue at hand. Schultz v. City of Cum- nesses, and to curtail the spread of sexually-trans- berland invalidated certain portions of adult enter- mitted diseases. (See LR, at 142-45 [Ordinance No. tainment licensing provisions pertaining to employee 9479, § 21.1801(B)(1)-(25) ].) and owner disclosures, because the court found them Plaintiffs first contend the requirements are unduly "redundant and unnecessary for Cumberland's stated burdensome because each corporate officer, director, purposes." 228 F.3d 831, 852 (7th Cir.2000). In addi- general partner or other person involved in manage- tion, Genusa v. City of Peoria invalidated a licensing ment directly participating in management decisions provision which required each person with an owner- or control of the business must personally *1151 ap- ship interest in an adult entertainment business to file pear at the Sheriff's office to file the establishment li- a separate license application. 619 F.2d 1203, cense application. The County's opposing argument is 1216-17 (7th Cir.1980). The court found the purpose although these individuals must each sign the applic- of the ordinance, enforcement of zoning provisions, ation, only one must personally appear at the Sheriff's did not support this requirement, and the purpose office. While this would be a sensible approach, it could be accomplished by one application filed on does not find support in the language of the ordin- behalf of the business entity. Id. In this case, the or-
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dinance does not require business owners to file sep- the County failed to present sufficient evidence to arate applications, unless they also fall within the meet its burden in opposition to plaintiffs' summary definition of "employee." It expressly provides for judgment motion or in support of its own cross-mo- filing of one establishment application signed by all tion with respect to this issue. the owners. The issue is whether it is constitutionally permissible to require all the owners to appear in per- As to each officer, director, general partner or man- son at the Sheriff's office to file the establishment ap- ager who falls under the definition of "employee," plication. plaintiffs also contend it is unduly burdensome and redundant to require each to apply for an employee li- As with any time, place, and manner restriction, it cense, as well as collectively for an establishment li- must be narrowly tailored to serve a substantial gov- cense. The County contends plaintiffs' interpretation ernment interest. Renton, 475 U.S. at 50-52, 106 of the ordinance is not supported by a fair reading of S.Ct. 925; see also Kev, 793 F.2d at 1060 (finding the the ordinance because the eligibility requirements for license requirements served valid governmental pur- the two licenses are identical, and each officer, dir- poses). In addition to the governmental interests the ector, general partner or manager listed on the estab- County intended to address, preventing minors and lishment license application is considered a "li- those who have recently been convicted of certain censee." crimes from working on the premises, facilitating the identification of potential witnesses or suspects, and While the employee license application does not call curtailing the spread of sexually-transmitted diseases for any additional type of information than the estab- (see LR, 142-45 [Ordinance No. 9479, § lishment license application (see LR, at 144 21.1801(B)(1)-(25) ] ), the County also stated the [Ordinance No. 9479, § 21.1803(D) ] ), the amended purpose for the licensing provision itself: ordinance clearly requires all persons falling within *1152 Adult Entertainment Establishments have the definition of "employee" to obtain an employee operational characteristics that should be reason- license: ably regulated in order to protect ... substantial It shall be unlawful for any person to be an em- governmental concerns, A reasonable licensing ployee as defined in this Chapter, [sic ] of an adult procedure is an appropriate mechanism to place the entertainment establishment in the County of San burden of that reasonable regulation on the owners Diego without a valid adult entertainment estab- and the operators of the adult entertainment estab- lishment employee license. lishments. Further, such a licensing procedure will (Id. at 149 [§ 21.1803(B) ].) The fact an officer, dir- give an incentive on [sic ] the operators to see that ector, general partner or manager is considered a "li- the adult entertainment establishment is run in a censee" when an establishment license is issued to manner consistent with the health, safety and wel- the business entity provides no relief, because the fare of its patrons and employees, as well as the cit- definition of "licensee" distinguishes between estab- izens of the County. It is appropriate to require lishment and employee licensees: reasonable assurances that the licensee is the actual "Licensee" shall mean ... the individual or indi- operator of the adult entertainment establishment, viduals listed as an applicant on the application for in ultimate possession and control if the premises a[n] adult entertainment establishment license. In and activities occurring therein. case of an "employee," it shall mean the person in (Id. at 144 [§ 21.1801(B)(17) & (18) ].) whose name the adult entertainment establishment employee license has been issued. It is not clear how the requirement that each officer, (Id. at 147 [§ 21.1802(F) ] (emphasis added).) director, general partner or manager appear in person to file the application advances the stated substantial Based on the express language of the ordinance, government interests. The County offered no explan- when the adult entertainment establishment is a busi- ation. Since prior restraints are presumptively uncon- ness entity, each of its officers, directors, general stitutional, Clark, 259 F.3d at 1005, the Court finds partners or managers who falls within the definition
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of "employee" is required to sign the establishment beginning work. (LR, at 170-71 [Ordinance No. application and submit a separate employee applica- 9479, §§ 21.284.9, 21.285.1, 21.285.3].) According tion. Since an employee license application calls for to plaintiffs, as a part of the registration process, the less information than an establishment license applic- employees also provide their photographs and finger- ation (*1153 see LR, at 150 [Ordinance No. 9479, § prints. Requiring fingerprints and photographs is 21.1803(D) ] ), the requirement to file an employee reasonably related to the substantial governmental in- application is redundant. In addition, it provides an- terest of preventing crime. See Deja Vu of Nashville other avenue to require each officer, director, general v. Metro. Gov't of Nashville, 274 F.3d 377, 393-95 partner or manager who is an employee to appear in (6th Cir.2001). This is one of the stated purposes of person at the Sheriff's office. (Id. at 149 [§ the amended ordinance. (LR, at 142 [Ordinance No. 21.1803(C) ].) As discussed above, the stated pur- 9479, § 21.1802(B)(5), (21)-(24) ].) Furthermore, the poses for the licensing provisions do not support this County made specific findings pertaining to per- requirement. formers and on-site managers which support the re- gistration requirement: Plaintiffs next contend the amended ordinance is not Certain employees of unregulated adult entertain- narrowly tailored because it "indiscriminately" re- ment establishments defined in this ordinance as quires every employee, whether they be a bartender, adult cabarets engage in higher incidence of certain waitress, door host, parking valet, janitor or account- types of illicit sexual behavior than employees of ing clerk, to be licensed. The ordinance, however, is other establishments. not "indiscriminate." It exempts from the licensing requirement persons who do not perform services on ****** the premises and "person[s] exclusively on the The disclosure of certain information by those per- premises for repair or maintenance of the premises or sons ultimately responsible for day-to-day opera- for the delivery of goods to the premises." (LR, at tion and maintenance of the adult entertainment es- 146 [Ordinance No. 9479, § 21.1802(C) ].) Requiring tablishment, where such information is substan- the remaining employees, who "perform [ ] any ser- tially related to the significant governmental in- vice on the premises of an adult entertainment estab- terest in the operation of such uses, will aid in pre- lishment" (id.), to obtain a license is substantially re- venting the spread of sexually transmitted [sic ] lated to the governmental interests the County inten- diseases and will prevent the further secondary ef- ded to address. (See LR, at 142-45 [Ordinance No. fects of crime, blight, and dissemination of illegal 9479, § 21.1801(B)(1)-(25) ].) Furthermore, the obscenity, child pornography, and to minors, ma- County is not required to establish the means it has terials harmful to them. chosen to address the secondary effects is the least re- (Id. at 145 [§ 21.1801(B)(2) & (21) ].) The registra- strictive or the most effective. A time, place, and tion requirement is therefore permissible *1154 on its manner regulation is considered narrowly tailored if face. As to the burden of filing a registration and an the government shows it "serve[s] a substantial gov- employee license application, nothing precludes the ernment interest," and affects that category of busi- performers and on-site managers from filing both at nesses which produce the secondary effects. Renton, the same time. (See id. at 149, 170-71 [§§ 21.1803, 475 U.S. at 50-52, 106 S.Ct. 925. Based on the fore- 21.284.9, 21.285.1].) Since the requirement is nar- going, plaintiffs' argument fails as a matter of law be- rowly tailored to advance a substantial government cause it is contradicted by the plain language of the interest, and the burden is de minimis, the Court finds ordinance. the requirement of filing a license application and re- gistration would not make it more difficult to obtain a Last, plaintiffs argue the licensing provisions are un- license so as to unreasonably diminish the inclination duly burdensome because, in addition to the employ- to apply. See Kev, 793 F.2d at 1060. The Court there- ee license, the amended ordinance requires each man- fore finds plaintiffs failed to meet their burden as the ager working on the premises and each performer to moving party for summary judgment and in opposi- file a registration form with the Sheriff's office before
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tion to the County's cross-motion with respect to this 2. Current business address or another mailing ad- issue. dress of the applicant. 3. Written proof of age, in the form of a birth certi- In sum, the Court finds the licensing and registration ficate or driver's license or other picture identifica- requirements are narrowly tailored with the following tion document issued by a governmental agency. two exceptions: (1) subsection (C) and (F) of section 4. If the application is for an adult entertainment 21.1803 are not narrowly tailored to the extent they establishment license, the establishment name, loc- require each "officer, director, general partner, or oth- ation, legal description, mailing address and tele- er person who will manage or participate directly in phone number (if one currently exists) of the pro- the decisions relating to management and control of posed adult entertainment establishment. the business" to appear in person at the Sheriff's of- 5. If the application is for an adult entertainment fice to file the establishment license application; and establishment license, the name and address of the (2) subsection (B) of section 21.1803 is not narrowly statutory agent or other agent authorized to receive tailored to the extent it requires the same category of service of process. individuals to also apply for an employee license, if 6. A statement whether the applicant has been con- they are employees as the term is defined in the or- victed or has pled guilty or nolo contendere to a dinance. specified *1155 criminal activity as defined in this ordinance, and, if so, the specified criminal activity None of the parties addresses severability of the of- involved, the date, place, and jurisdiction of each. fending provisions. Ordinance No. 9479 contains a (LR, at 150 [Ordinance No. 9479, § 21.1803(D) ].) severability clause. (LR, at 165 [§ 21.1826].) In addi- tion, based on the Legislative Record and review of Plaintiffs' "assertion that requiring disclosure of in- the affected ordinance, the Court finds the remainder formation regarding names, addresses, and telephone of the ordinance, including the extensive substantive numbers to the county violates the First Amendment provisions and the non-offending licensing and regis- is essentially foreclosed by [the] decision in Kev." tration provisions, is sufficiently complete in itself, See Dream Palace, 384 F.3d at 1010. Kev upheld a li- and the County likely would have adopted the censing provision requiring entertainers to provide amended ordinance, even if it had foreseen some of their name, address, phone number, birth date, and its license application provisions would be invalid- aliases, past and present, and business name and ad- ated. See Barlow, 72 Cal.App.4th at 1264, 85 dress where they intended to perform. 793 F.2d at Cal.Rptr.2d 752; see also Kev, 793 F.2d at 1060 n. 7. 1059. The court found the required disclosures would The Court therefore finds the unconstitutional por- not "discourage ... a prospective dancer from per- tions of the licensing provision are severable, and forming" and did not "inhibit [ ] the ability or the in- therefore does not strike the ordinance in its entirety. clination to engage in the protected expression." Id. at 1060; see also Dream Palace, 384 F.3d at 1010 2. Narrowly Tailored--Disclosure of Personal In- (upholding licensing provision requiring disclosure of formation full true name, stage names, current residential ad- [33] In addition, plaintiffs argue the County's new li- dress, and telephone number). [FN18] censing requirements are unconstitutional because FN18. Plaintiffs rely largely on Schultz, they require applicants to reveal certain personal in- where the Seventh Circuit invalidated that formation which may potentially be available to the portion of licensing requirements which public under California law, and therefore have a called for disclosure of a residential address, "chilling effect" on protected speech. The ordinance recent color photograph, Social Security requires license applicants to disclose the following: number, fingerprints, tax-identification num- 1. The applicant's full true name and any other ber and driver's license information. 228 names or aliases used in the preceding five (5) F.3d at 852. The Ninth Circuit, however, years. does not follow Schultz in this regard. In
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finding a similar licensing provision consti- during which the status quo is maintained," and tutional, Dream Palace acknowledged the "there must be the possibility of prompt judicial re- Seventh Circuit's decision in Schultz was to view in the event that the license is erroneously the contrary. See 384 F.3d at 1010 n. 14. denied." Id. at *1156 225, 228, 110 S.Ct. 596. Al- The Court therefore declines plaintiffs' invit- though plaintiffs acknowledge this standard in their ation to follow Schultz. opposition to the County's motion and in support of their cross-motion, they do not contend the licensing However, Dream Palace granted the plaintiff's re- provisions fail to satisfy it. [FN19] quest for an injunction prohibiting the government from disclosing to the public pursuant to the state FN19. To the extent plaintiffs intended this public record laws personal information such as res- motion to challenge the procedural safe- idential addresses and telephone numbers because guards in their papers, they have waived this such information could be used by "aggressive suitors issue by failing to discuss it. See Indep. and overzealous opponents" to trace entertainers to Towers, 350 F.3d at 929. their homes, causing them to choose not to apply for a permit or to engage in protected speech out of con- Under the County's licensing scheme, a license ap- cern for their personal safety. 384 F.3d at 1012. The plication may be denied based only on objective cri- Ninth Circuit noted "[t]he chilling effect on those teria: if an applicant is less than eighteen years of wishing to engage in First Amendment activity is ob- age, fails to provide certain information or falsely an- vious." Id. swers a question, has not paid the fee, was convicted of certain specified crimes, or the adult entertainment The instant case, however, differs in a significant re- premises fail to meet interior configuration or zoning spect from Dream Palace. Nothing in the ordinance requirements of the ordinance. (LR, at 151-52 requires applicants to disclose their home address or [Ordinance 9479, § 21.1804(A)(1)-(5) ].) These re- telephone number, thus precluding the risk of ag- quirements do not provide much discretion for denial gressive suitors or overzealous opponents tracing of the license. Upon receipt of the application, a tem- them to their homes. Plaintiffs point to no other risk porary license is immediately issued until the applica- which could dissuade individuals from applying for a tion is granted or denied. (Id. at 151.) This ensures license. the status quo remains pending the decision. The de- cision must be made within thirty days, at which time With respect to the required disclosure of certain per- the applicant can immediately seek judicial review or sonal information to obtain a license, the Court finds appeal the decision to the County Hearing Officer. plaintiffs failed to meet their burden in opposition to (Id. at 152, 163 [§§ 21.1804(B), 21.1824].) While re- the County's summary judgment or in support of their view is pending, the applicant may continue to oper- cross-motion. Based on the foregoing, the Court does ate with a provisional license. (Id. at 164 [§ not reach the issue whether licensing information is 21.1824].) Based on the review of the pertinent li- available to the public under California law. censing provisions and lack of opposition from plaintiffs, the Court finds the County met its burden C. Procedural Safeguards as the moving party for summary judgment with re- [34] In its summary judgment motion the County spect to this issue. contends the licensing provisions of the amended or- Conclusion dinance provide the procedural safeguards required Based on the foregoing, plaintiffs' Joint Motion for by FW/PBS. To be constitutional, licensing provi- Summary Judgement is GRANTED IN PART AND sions may not place "unbridled discretion in the DENIED IN PART, and defendant's Motion for hands of a government official or agency," "the li- Summary Judgment or, in the Alternative, Partial censor must make the decision whether to issue the Summary Judgment is GRANTED IN PART AND license within a specified and reasonable time period DENIED IN PART as specified below.
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As to Fantasyland Video, Inc. v. County of San 9479 (as amended) is DENIED, and the County's Diego, case no. 02cv1909 LAB (RBB): summary judgment motion on the same claim is GRANTED. 1. Fantasyland's motion for summary judgment with respect to its First Claim for Relief for declaratory 3. Fantasyland's motion for summary judgment with and injunctive relief to prevent enforcement of the respect to its Third Claim for Relief for declaratory "Licensing Requirement" of Ordinance No. 9479 (as and injunctive relief to prevent enforcement of the "In- amended) is GRANTED to the extent the Court finds terior Configuration Regulations" of the Ordinance unconstitutional certain licensing and registration No. 9479 (as amended) is DENIED, and the County's provisions of section 21.1803(B), (C) and (F). summary judgment motion on the same claim is GRANTED. Specifically, the Court finds: (1) subsections (C) and (F) are not narrowly tailored to the extent they re- 4. Judgment has been entered on December 6, 2002 quire each "officer, director, general partner, or other as to all remaining claims in this case. Clerk of Court person who will manage or participate directly in the is therefore directed to ENTER FINAL JUDG- decisions relating to management and control of the MENT in case no. 02cv1909 LAB (RBB). business" to appear in person at the Sheriff's office to file an adult entertainment establishment license ap- As to Tollis, Inc. et al. v. County of San Diego, case plication; and (2) subsection (B) is not narrowly no. 02cv2023 LAB (RBB) tailored to the extent it requires the same category of 1. Deja Vu's motion for summary judgment with re- individuals to also apply for an adult entertainment spect to its First Claim for Relief for declaratory and establishment employee license, if they are employ- injunctive relief to prevent enforcement of the "Li- ees as the term is defined in the ordinance. The Court cense Requirements" of Ordinance No. 9479 (as further finds these provisions severable from the re- amended) is GRANTED to the extent the Court finds mainder of the ordinance. unconstitutional certain licensing and registration Accordingly, the County is ENJOINED from requir- provisions of section 21.1803(B), (C) and (F). ing each "officer, director, general partner, or other Specifically, the Court finds: (1) subsections (C) and person who will manage or participate directly in the (F) are not narrowly tailored to the extent they re- decisions relating to management and control of the quire each "officer, director, general partner, or other business" to appear in person at the Sheriff's office to person who will manage or participate directly in the file an adult entertainment establishment license ap- decisions relating to management and control of the plication. The County is further ENJOINED from business" to appear in person at the Sheriff's office to requiring the same category of individuals *1157 to file an adult entertainment establishment license ap- also apply for an adult entertainment establishment plication; and (2) subsection (B) is not narrowly employee license, if they are employees as the term is tailored to the extent it requires the same category of defined in the ordinance. individuals to also apply for an adult entertainment In all other respects, Fantasyland's summary judg- establishment employee license, if they are employ- ment motion with respect to its First Claim for Relief ees as the term is defined in the ordinance. The Court is DENIED, and the County's summary judgment further finds these provisions severable from the re- motion with respect to the same claim is mainder of the ordinance. GRANTED. Accordingly, the County is ENJOINED from requir- 2. Fantasyland's motion for summary judgment with ing each "officer, director, general partner, or other respect to its Second Claim for Relief for declaratory person who will manage or participate directly in the and injunctive relief to prevent enforcement of the decisions relating to management and control of the "Hours of Operation Requirement" of Ordinance No. business" to appear in person at the Sheriff's office to file an adult entertainment establishment license ap-
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plication. The County is further ENJOINED from "Zoning Amendment" Deja Vu alleges Ordinance requiring the same category of individuals to also ap- No. 9469 (as amended) constitutes regulatory taking ply for an adult entertainment establishment employ- on the grounds it does not substantially advance legit- ee license, if they are employees as the term is imate state interests. Deja Vu is hereby ORDERED defined in the ordinance. TO SHOW CAUSE why its Fifth Claim Alternative Relief should not be adjudicated in the same manner In all other respects, Deja Vu's summary judgment as its Fourth Claim for Relief. No later than July 5, motion with respect to its First Claim for Relief is 2005, Deja Vu shall file a memorandum of points and DENIED, and the County's summary judgment mo- authorities not to exceed five pages in length and sup- tion with respect to the same claim is GRANTED. porting evidence, if any, in response to this order to show cause. The County shall file a responsive 2. Deja Vu's motion for summary judgment with re- memorandum of points and authorities no more than spect to its Second Claim for Relief for declaratory five pages in length and any supporting evidence no and injunctive relief to prevent enforcement of the later than July 18, 2005. Upon filing of the foregoing, "Hours of Operation Requirement" of Ordinance No. the parties shall await further order of the Court. 9479 (as amended) is DENIED, and the County's summary judgment motion on the same claim is IT IS SO ORDERED. GRANTED. 373 F.Supp.2d 1094 3. Deja Vu's motion for summary judgment with re- spect to its Third Claim for Relief for declaratory and Motions, Pleadings and Filings (Back to top) injunctive relief to prevent enforcement of the "Per- formance Restrictions" of Ordinance No. 9479 *1158 • 2004 WL 3590393 (Trial Motion, Memorandum (as amended) is DENIED, and the County's summary and Affidavit) Declaration of thomas D. Bunton in judgment motion on the same claim is. Support of the County of San Diego's Motion for Summary Judgment or, in the Alternative, Partial 4. Deja Vu's motion for summary judgment with re- Summary Judgment (Oct. 15, 2004)Original Image of spect to its Fourth Claim for Relief for declaratory this Document (PDF) and injunctive relief to prevent enforcement of the "Zoning Amendment" of Ordinance No. 9469 (as • 2004 WL 3607138 (Partial Expert Testimony) amended) is GRANTED to the extent the Court finds (Partial Testimony) (Oct. 13, 2004)Original Image of unconstitutional certain procedural provisions of sec- this Document (PDF) tions 6930(b)(1) and 7064. • 2004 WL 3607139 (Partial Expert Testimony) Specifically, the Court finds sections 6930(b)(1) and (Partial Testimony) (Oct. 13, 2004)Original Image of 7064 fail to provide for procedural safeguards re- this Document (PDF) quired by the First Amendment to the extent they al- • 2004 WL 3607211 (Expert Report and Affidavit) low for excessive time to make a decision whether to (Report or Affidavit of John M. Goldenring, MD, grant an administrative permit application. The Court MPH) (Oct. 12, 2004)Original Image of this Docu- further finds these provisions severable from the re- ment (PDF) mainder of the ordinance. • 2004 WL 3607134 (Expert Report and Affidavit) In all other respects, Deja Vu's summary judgment (Report or Affidavit of R. Bruce McLaughlin) (Oct. motion with respect to its Fourth Claim for Relief is 11, 2004)Original Image of this Document (PDF) DENIED, and the County's summary judgment mo- tion with respect to the same claim is GRANTED. • 2004 WL 3607135 (Expert Report and Affidavit) (Report or Affidavit of Daniel Linz, Ph.D) (Oct. 8, 5. In its Fifth Claim Alternative Relief for declaratory 2004)Original Image of this Document (PDF) and injunctive relief to prevent enforcement of the
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• 2004 WL 3607137 (Partial Expert Testimony) • 2004 WL 2338313 (Trial Motion, Memorandum (Partial Testimony) (Oct. 6, 2004)Original Image of and Affidavit) Defendant's Memorandum of Points this Document (PDF) and Authorities in Response to the Court's Order to Show Cause Re Consolidation (Jul. 12, • 2004 WL 3607136 (Partial Expert Testimony) 2004)Original Image of this Document (PDF) (Partial Testimony) (Sep. 30, 2004)Original Image of this Document (PDF) • 2004 WL 2338337 (Trial Motion, Memorandum and Affidavit) Defendant's Memorandum of Points • 2004 WL 3609562 (Expert Deposition) Deposition and Authorities in Response to the Court's Order to of R. Bruce McLaughlin (Sep. 30, 2004)Original Im- Show Cause Re Consolidation (Jul. 12, age of this Document (PDF) 2004)Original Image of this Document (PDF)
• 2004 WL 3607133 (Expert Report and Affidavit) • 2004 WL 2338336 (Trial Pleading) Defendant (Report or Affidavit of Daniel G. Linz, Ph.D) (Aug. County of San Diego's Answer to Plaintiffs' First 31, 2004)Original Image of this Document (PDF) Amended Complaint (May 5, 2004)Original Image of this Document (PDF) • 2004 WL 2338318 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Reply to Defendant's Op- • 2004 WL 2338334 (Trial Pleading) First Amended position to Ex Parte Application for Modification of Complaint for Declaratory Relief, Injunctive Relief Deadlines for Submission of Expert Reports (Aug. and Demand for Jury 42 U.S.C. section 1983 (Apr. 30, 2004)Original Image of this Document (PDF) 16, 2004)Original Image of this Document (PDF)
• 2004 WL 2338317 (Trial Motion, Memorandum • 2004 WL 2338309 (Trial Motion, Memorandum and Affidavit) Defendant's Memorandum of Points and Affidavit) Defendant's Reply Memorandum of and Authorities in Opposition to Plaintiffs' Ex Parte Points and Authorities in Support of its Federal Rule Application for Modification of Deadlines for Sub- of Civil Procedure 12(c) Motion for Judgment on the mission of Expert Reports (Aug. 27, 2004)Original Pleadings (Mar. 1, 2004)Original Image of this Docu- Image of this Document (PDF) ment (PDF)
• 2004 WL 2338316 (Trial Motion, Memorandum • 2004 WL 2338332 (Trial Motion, Memorandum and Affidavit) Defendant's Memorandum of Points and Affidavit) Defendant's Reply Memorandum of and Authorities in Opposition to Plaintiffs' Ex Parte Points and Authorities in Support of its Federal Rule Application for Order Modifying Pretrial Conference of Civil Procedure 12(c) Motion for Judgment on the Scheduling (Jul. 16, 2004)Original Image of this Pleadings (Mar. 1, 2004)Original Image of this Docu- Document (PDF) ment (PDF)
• 2004 WL 2338341 (Trial Motion, Memorandum • 2004 WL 2338330 (Trial Motion, Memorandum and Affidavit) Defendant's Memorandum of Points and Affidavit) Plaintiffs' Brief in Opposition to De- and Authorities in Opposition to Plaintiffs' Ex Parte fendant's Motion for Judgment on the Pleadings (Feb. Application for Order Modifying Pretrial Conference 17, 2004)Original Image of this Document (PDF) Scheduling (Jul. 16, 2004)Original Image of this Document (PDF) • 2004 WL 2338305 (Trial Motion, Memorandum and Affidavit) Defendant's Memorandum of Points • 2004 WL 2338312 (Trial Motion, Memorandum and Authorities in Support of its Federal Rule of and Affidavit) Plaintiff's Response to the Court's Or- Civil Procedure 12(c) Motion for Judgment on the der to Show Cause Filed July 6, 2004 and Concern- Pleadings (Jan. 20, 2004)Original Image of this Doc- ing Consolidation (Jul. 12, 2004)Original Image of ument (PDF) this Document (PDF) • 2004 WL 2338329 (Trial Motion, Memorandum
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and Affidavit) Defendant's Memorandum of Points • 2002 WL 32701104 (Trial Pleading) Original Com- and Authorities in Support of its Federal Rule of plaint by Plaintiff Fantasyland Video, Inc. for Declar- Civil Procedure 12(c) Motion for Judgment on the atory and Injunctive Relief (Sep. 24, 2002)Original Pleadings (Jan. 20, 2004)Original Image of this Doc- Image of this Document with Appendix (PDF) ument (PDF) • 3:02CV01909 (Docket) (Sep. 24, 2002) • 2003 WL 23838873 (Trial Motion, Memorandum and Affidavit) Memorandum of Points and Authorit- END OF DOCUMENT ies in Support of Motion to Consolidate Related Cases (Feb. 27, 2003)Original Image of this Docu- ment (PDF)
• 2003 WL 23838883 (Trial Motion, Memorandum and Affidavit) Memorandum of Points and Authorit- ies in Support of Motion to Stay Proceedings Pending Ninth Circuit Decisions; Declaration of G. Randall Garrou, Esq. (Feb. 27, 2003)Original Image of this Document with Appendix (PDF)
• 2003 WL 23838968 (Trial Motion, Memorandum and Affidavit) Memorandum of Points and Authorit- ies in Support of Motion to Consolidate Related Cases (Feb. 27, 2003)Original Image of this Docu- ment (PDF)
• 2003 WL 23838860 (Trial Motion, Memorandum and Affidavit) Defendant's Memorandum of Points and Authorities in Support of its Federal Rule of Civil Procedure 12(c) Motion for Judgment on the Pleadings (Feb. 14, 2003)Original Image of this Doc- ument (PDF)
• 2003 WL 23838952 (Trial Pleading) Defendant County of San Diego's Answer to Plaintiffs' Com- plaint (Jan. 31, 2003)Original Image of this Docu- ment (PDF)
• 2002 WL 32701106 (Trial Pleading) Defendant County of San Diego's Answer to Plaintiff's Com- plaint (Nov. 14, 2002)Original Image of this Docu- ment (PDF)
• 2002 WL 32701133 (Trial Pleading) Complaint for Declaratory Relief, Injunctive Relief and Damages and Demand for Jury 42 U.S.C. section 1983 (Oct. 11, 2002)Original Image of this Document with Ap- pendix (PDF)
• 3:02CV02023 (Docket) (Oct. 11, 2002)
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