Sammy's of Mobile v. City of Mobile ( 1998 )

PUBLISH
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-7073
D. C. Docket Nos. 96-0176-BH-M
& 96-0246-BH-S
SAMMY’S OF MOBILE, LTD., AN ALABAMA
LIMITED PARTNERSHIP; SAMMY’S MANAGEMENT
COMPANY, INC., AN ALABAMA CORPORATION,
Plaintiffs-Appellants,
versus
CITY OF MOBILE, A BODY CORPORATE AND
POLITIC,
Defendant-Appellee.
J & B SOCIAL CLUB, #1, INC., d.b.a.
The Candy Store, JENNIFER Q. BODIFORD;
et al.,
Plaintiffs-Appellants,
versus
THE CITY OF MOBILE, ALABAMA,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of Alabama
(May 8, 1998)
Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior Circuit
Judges.
HILL, Senior Circuit Judge:
The City of Mobile prohibits nude dancing in establishments licensed to sell
liquor. Two clubs brought suit seeking an injunction prohibiting the City from
enforcing its ordinance. The clubs claim the ordinance violates their rights under the
First Amendment to the Constitution. The district court granted summary judgment
to the City. For the following reasons, we affirm.
I.
Ordinance 03-0031 of the City of Mobile, Alabama provides:
It shall be unlawful for any manager, officer, agent, servant, employee,
or person in charge of any establishment within the City of Mobile or the
police jurisdiction thereof, licensed to sell spirituous or vinous liquors or
malt or brewed beverages under the laws of the State of Alabama,
knowingly to exhibit, suffer, allow, permit, engage in, participate in, or
be connected with, any motion picture, show, performance, or other
presentation upon the licensed premises, which, in whole or in part,
depicts nudity or sexual conducts or any simulation thereof.
Any person, firm or corporation convicted for violating this ordinance
shall be fined not more than $500.00 and sentenced to imprisonment for
a period not exceeding six months, at the discretion of the court trying
the case.2
1
The ordinance was enacted on February 6, 1996.
2
The ordinance defines “nudity” as:
[T]he showing of the human male or female genitals, pubic area,
2
The preamble to the ordinance provides:
WHEREAS, the City Council of the City of Mobile, Alabama, finds and
declares that nudity and sexual conduct and depiction thereof, coupled
with alcohol in public places, encourages undesirable behavior and is not
in the interest of the public health, safety, and welfare.
WHEREAS, the Council has chosen to avoid the disturbances associated
with mixing alcohol and nude dancing by means of a reasonable
restriction upon establishments which sell spiritous or vinous liquors or
malt or brewed beverages.
NOW, THEREFORE, the Council adopts this Ordinance pursuant to the
powers under the Twenty-first Amendment to the Constitution of the
United States delegated to it by the State of Alabama.
Id.
Prior to the enactment of the ordinance, Sammy’s of Mobile, Ltd., (Sammy’s),
and The Candy Store were licensed to sell alcoholic beverages for on-premises
consumption and offered topless female dancing. Sammy’s surrendered its liquor
license after the passage of the ordinance, and continues to offer topless, as well as
totally nude, dancing. The Candy Store has not surrendered its license and continues
to provide topless dancing. Although the City has not yet enforced the ordinance
against The Candy Store, the City has expressed an intent to do so.
or buttocks with less than a fully opaque covering, or the showing of the
female breast with less than a fully opaque covering of any portion
thereof below the top of the darkened area surrounding the nipple, or the
depiction of covered male genitals in a discernibly turgid state.
3
Sammy’s filed suit against the City in Alabama state court seeking declaratory
and injunctive relief, and the City removed the action to federal district court. The
complaint alleges that the ordinance is unenforceable under the doctrine of equitable
estoppel and that it violates the free speech clause of the First Amendment, the takings
clause of the Fifth Amendment, the equal protection clause, both the substantive and
procedural guarantees of the due process clause of the Fourteenth Amendment, and
the ex post facto clause.
The Candy Store filed suit in federal district court seeking injunctive relief and
damages, alleging that the ordinance violates the First Amendment, the Fifth
Amendment, and the equal protection clause of the Fourteenth Amendment and that
the ordinance is unenforceable under the doctrine of res judicata.3
The two cases were consolidated and all parties moved for summary judgment.
The district court granted summary judgment to the City on all claims. The court
concluded that the ordinance does not offend the First Amendment under the four-part
test of United States v. O’Brien, 391 U.S. 367 (1968), and that plaintiffs’ remaining
claims lack merit. Sammy’s and The Candy Store appeal, contending that the district
court erred in holding that the ordinance does not offend the First Amendment or the
3
The district court denied both Sammy’s and The Candy Store’s motions for
injunctive relief.
4
due process and equal protection clauses of the fourteenth Amendment. We review
the district court’s grant of summary judgment de novo. Gordon v. Cochran, 116 F.3d
1438, 1439 (11th Cir. 1997).
II.
The Supreme Court has long upheld ordinances such as Mobile’s. In California
v. LaRue, 409 U.S. 109, 114 (1972), the Court approved, as a valid exercise of the
general police power, an ordinance prohibiting nude dancing where liquor was sold.
The Court found the “conclusion, embodied in these regulations, that certain sexual
performances and the dispensing of liquor by the drink ought not to occur at premises
that have licenses was not an irrational one.” Id. at 118. Since then, many similar
ordinances have been approved, including several in this circuit. See New York State
Liquor Authority v. Bellanca, 452 U.S. 714 (1981); City of Newport v. Iacobucci, 479
U.S. 1047 (1986); Lanier v. City of Newton, 842 F.2d 253 (11th Cir. 1988); Int’l
Eateries of America v. Broward County, 941 F.2d 1157, 1162 (11th Cir. 1991); Grand
Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982); Café 207, Inc. v. St.
Johns County, 856 F. Supp. 641, 645 (M.D. Fla. 1994), aff’d per curiam, 66 F. 3d 272(11th Cir. 1995). .
5
Although such ordinances regulate expressive conduct,4 the Court has
determined that they are content-neutral and should be reviewed under the
intermediate level of scrutiny articulated in United States v. O’Brien, 391 U.S. 367(1968). Barnes v. Glen Theatres, Inc., 501 U.S. 560, 570 (1991). Under this test, an
ordinance is constitutional if: (1) the interest served is within the power of the
government; (2) the regulation furthers that interest; (3) the interest served is unrelated
to free expression; and (4) there is no less restrictive alternative. O’Brien at 377
(quoted in Barnes, 501 U.S. at 567). In Barnes, the Court applied this test in
upholding Indiana’s prohibition on public nudity as applied to nude dancing. 501
U.S. at 570.
Recently, the Supreme Court has reaffirmed the precedential value of LaRue
and the Barnes-O’Brien test. 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495(1996). Although the Court disavowed the idea expressed in a long line of cases,
including LaRue, that the Twenty-first Amendment lends an added presumption in
favor of the validity of regulation of otherwise protected speech when it is at the site
of the sale of alcoholic beverages, the Court observed that “[e]ntirely apart from the
Twenty-first Amendment, the State has ample power to prohibit the sale of alcoholic
4
The Supreme Court has recognized that nude dancing may have some
expressive content. Barnes v. Glen Theatres, Inc., 501 U.S. 560, 566 (1991).
6
beverages in inappropriate locations.” 116 S. Ct. at 1514. This power is located in
the inherent police power of every state to regulate to promote public decency. Id.The Court also reaffirmed that the Barnes-O’Brien intermediate level of review
applies to such ordinances. Id. Under this test, the Court concluded, even after 44
Liquormart, LaRue, “would come out the same way.” Id. We are informed by this
guidance and agree with the district court that the Barnes-O’Brien test is applicable
to the Mobile ordinance. 5
The district court held that the Mobile ordinance passes all these tests for a
constitutional regulation of expressive conduct: the regulation of public health,
safety, and morals is a valid and substantial state interest; the Mobile ordinance’s
statement of purpose and findings as to the problems created by the combination of
5
The dissent rejects the application of LaRue and Barnes to the Mobile
ordinance because it believes 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495(1996), “eviscerated” the rationale of LaRue. This conclusion is reached despite the
fact that the Supreme Court in 44 Liquormart specifically cautions us against just such
a view. By expressing its opinion that LaRue would come out the same way, the
Court may have hoped to forestall the view that 44 Liquormart is the death knell for
ordinances prohibiting nude entertainment in bars. The Court characterized the
Twenty-first Amendment analysis of LaRue as merely a “buttress” to the conclusion
that the First Amendment did not invalidate California’s prohibition of certain grossly
sexual exhibitions in premises licensed to serve alcoholic beverages. 116 S. Ct. at
1514. Although no longer buttressed by the added presumption of the Twenty-first
Amendment, the Court was careful to remind us that such ordinances remain protected
by the continued vitality of a long line of approving cases, including LaRue and
Barnes.
7
alcohol and nude entertainment are sufficient to support the requirement that the
regulation further this interest; this interest is unrelated to the suppression of free
expression; and the ordinance is narrowly tailored to the perceived problem.
We agree. The preamble to the ordinance finds that nudity and sexually explicit
entertainment coupled with alcohol in public places “encourages undesirable behavior
and is not in the interest of public health, safety, and welfare.” Thus, the ordinance
is aimed at the very type of harm found to create a substantial government interest in
LaRue, Barnes, International Eateries and a host of other cases. Furthermore, Mobile
has a “reasonable basis” for believing that its ordinance will serve this substantial
governmental interest. See Int’l Eateries, 941 F.2d at 1162. The district court located
this reasonable basis in the experience of other cities, studies done in other cities,
caselaw reciting findings on the issue, as well as their own wisdom and common
sense. This is sufficient.6 The Supreme Court has itself noted that “[c]ommon sense
6
It is clear that under Barnes, there is no constitutional requirement that a city
make particularized findings regarding the adverse effects of the combination of
alcohol and nude entertainment. The Court noted that there were no findings nor any
legislative history attached to the Indiana statute, but found the “statute’s purpose of
protecting societal order and morality is clear from its text and history.” 501 U.S. at
568. See also Café 207, Inc. v. St. Johns County, 856 F. Supp. 641, 645 (M.D. Fla.
1994), aff’d per curiam, 66 F. 3d 272 (11th Cir. 1995) (“It is now established as a
matter of law by Supreme Court jurisprudence culminating in [Barnes] that secondary
effects of proscribed conduct may be taken into consideration by a court evaluating
the governmental interests justifying impingement upon free speech rights even when,
as in Barnes, there is no legislative history demonstrating that the lawmakers actually
8
indicates that any form of nudity coupled with alcohol in a public place begets
undesirable behavior.” Bellanca, 452 U.S. at 718. Finally, the requirement that the
dancers partially cover their breasts or cease to serve alcohol is certainly the least
restriction possible which would still further the city’s interest in controlling the
combustible mixture of alcohol and nudity.
The dissent believes that the ordinance does not meet the third requirement of
this test, i.e., that the city’s interest be unrelated to the suppression of the message of
nude dancing. Indeed, the dissent rejects the applicability of the Barnes-O’Brien test
itself because it finds the Mobile ordinance to be a “content-based” regulation, subject
to a “searching” level of scrutiny.7
Characterizing Mobile’s ordinance as content-based is a clear departure from
prior cases holding that such ordinances are not aimed at the erotic message of nude
considered secondary effects or any other specific factor (such as protecting order and
morality) in enacting the challenged law.”).
7
The dissent’s argument that the Barnes-O’Brien test is inapposite because the
Indiana statute there was content-neutral, whereas Mobile’s ordinance is content-
based, ignores the claim in Barnes. While Indiana’s statute, on its face, prohibits
public nudity rather than “expressive conduct,” the claim in Barnes was not that the
statute was facially invalid, but that it was unconstitutional as applied to nude
dancing. There was no claim in Barnes that the statute was unconstitutional because
it prohibited nudity simpliciter. The claim was that the statute was unconstitutional
because it prohibited nude dancing. The same claim is made against the Mobile
ordinance.
9
dancing. For example, in Barnes, the Supreme Court held that Indiana’s interest in
prohibiting public nude dancing was “unrelated to the suppression of free expression.”
501 U.S. at 571. The Court rejected the argument that merely because nude dancing
may have some expressive content, an ordinance prohibiting such dancing must be
aimed at the suppression of that content. The purpose of Indiana’s statute was not to
suppress the erotic message of nude dancing, but to address the evil of public nudity.
Id. The Court concluded, “[i]t was not the dancing that was prohibited, but simply its
being done in the nude.” Id. See also Buzzetti v. New York City, No. 97-7585, (2d
Cir. March 20, 1998) (ordinance barring adult businesses from residential zones and
certain other areas is a content-neutral and aimed at curbing negative effects of adult
businesses on surrounding areas rather than seeking to suppress free expression).
We too have rejected the idea that ordinances aimed at nude entertainment are
necessarily content-based. In holding such an ordinance to be a valid regulation of the
time, place and manner of expressive conduct, we wrote:
The only restriction imposed by the . . . ordinance is in terms of the place
where nude dancing may be presented [i.e., only in places not serving
alcohol]. This type of regulation has been recognized as independent of
expressive or communicative elements of conduct in other contexts.
Grand Faloon Tavern, 670 F.2d at 947(emphasis added).8
8
Although the dissent relies heavily on our subsequent opinions in Krueger v.
City of Pensacola, 759 F.2d 851 (11th Cir. 1985) and Leverett v. City of Pinellas Par,,
10
Similarly, the Mobile ordinance does not seek to ban whatever message is
conveyed by nude dancing. It does not even seek to ban nude dancing. In prohibiting
nude dancing where liquor is sold, the ordinance restricts only the place or manner of
nude dancing without regulating any particular message it might convey. No party
disputes that the completely nude dancing which Sammy’s, having surrendered its
liquor license, now presents is legal under the ordinance. Nude dancing appears to be
allowed everywhere in Mobile, except where alcohol is served. Mobile is attempting
only to regulate the sale of alcohol in inappropriate places and it has determined that
it is inappropriately sold in places where nude dancing is offered. Therefore, the
ordinance is constitutional under the Barnes-O’Brien test.
Furthermore, the Barnes-OBrien test applies to this ordinance even if it is not
strictly content-neutral. It is true that not all dancing is prohibited in Mobile, only
nude dancing where liquor is served. To that extent, the ordinance refers to the
“content” of the dancing. The dissent, however, seems to equate this reference to
775 F.2d 1536 (11th Cir. 1985), neither undermines Grand Faloon’s premise that
Mobil’s ordinance is content-neutral. Both cases not only do not explicitly hold that
regulations such as the one at bar are content-regulatory but also do not apply the
strict scrutiny appropriate for content regulations. Instead, both Krueger and Leverett
require only that cities demonstrate that ordinances such as Mobile’s advance
“legitimate interests” and struck down nude dancing ordinances because the records
in those cases did not show that the ordinances furthered any legitimate government
interest unrelated to the suppression of free expression. See Krueger, 759 F.2d at 855-
56; Leverett, 775 F.2d at 1540-41.
11
content with content suppression. The dissent says, for example, that the ordinance
is an “outright ban targeted solely at conduct protected by the First Amendment” and
that, “on its face, it singles out nude entertainment and thus the erotic message
conveyed by that conduct.”9
The Supreme Court, however, does not equate reference to content with
suppression of content. The Court applies the Barnes-O’Brien intermediate level of
scrutiny to ordinances which distinguish between nude and clothed entertainment, but
which are aimed only at the secondary effects of nude entertainment. City of Renton
v. Playtime Theatres, Inc., 475 U.S. 41, 48 (1986) (ordinance “by its terms [was]
designed to prevent crime, protect city’s retail trade, maintain property values, and
generally protect and preserve the quality of the city’s neighborhoods, commercial
9
In fact, the dissent apparently rejects the idea that any such ordinance might
ever be justified as an attempt to address the undesirable secondary effects of the
commingling of alcohol and nudity because such ordinances are “content-based
regulations of expressive behavior.” For example, the dissent states that the reason
we upheld the City of Pinellas Park’s ordinance prohibiting nudity in the course of
food and drink service in Leverett v. City of Pinellas Park, 775 F.2d 1536 (11th Cir.
1985), was “because the ordinance did not apply to protected expression, such as
dancing.” (emphasis added) To the dissent, any regulation of the place or manner of
nude dancing is also necessarily a regulation of the content of such expression. This
contention presupposes that all nude dancing conveys the same message, when, in
fact, controversy rages both in academia and society at large as to whether nude
dancing, films, and other such exhibitions express messages of liberation or
submission. We cannot assume that any regulation addressing nude dancing is a
content regulation.
12
districts, and the quality of urban life”); Young v. American Mini Theaters, Inc., 427
U.S. 50, 71 n. 34 (“[i]t is [the] secondary effect [of crime and urban deterioration]
which these zoning ordinances attempt to avoid, not the dissemination of ‘offensive
speech’ ”).
In International Eateries, we too upheld a city ordinance regulating nude
dancing aimed at “protecting the quality of urban life from the secondary effects of
adult businesses.” 941 F.2d at 1162. Applying Barnes-O’Brien scrutiny, we
concluded that the ordinance was valid because it furthered a substantial governmental
interest in regulating these secondary effects. Id. See also Buzzetti, at 7-8.
Mobile also defends its ordinance as an attempt to combat the secondary effects
of nude performance in a bar atmosphere. Just as the cities in Renton, Young, and
International Eateries, it seeks, geographically, to separate adult entertainment
establishments from other commercial establishments -- in this case, bars -- in order
to minimize the secondary effects of that combination.
The dissent rejects this analogy. It believes these cases are inapposite because
the zoning regulations therein were “content-neutral,” as opposed to the “content-
based” Mobile ordinance. The zoning ordinances in Renton, Young, and International
Eateries, however, were not content-neutral. They treated adult theaters differently
from other theaters. They were content-based to the same extent, and in exactly the
13
same way, as the ordinance in Mobile which treats nude dancing differently from
clothed dancing.10
Mobile is attempting to regulate the secondary effects of the combination of
alcohol and nude dancing without prohibiting either. It does not seek to ban bars or
nude dancing. Everyone can still buy a drink and watch nude dancing in Mobile.
They cannot, however, do both in the same place. The dissent seems to believe this
may violate the rights of the people of Mobile, but we are unaware of any
constitutional right to drink while watching nude dancing.11 Accordingly, the
judgment of the district court is AFFIRMED.
10
In fact, the clothes required are few–a g-string and pasties will satisfy the
statute.
11
The reference in 44 Liquormart to the proposition that government may not
deny a benefit to a person on a basis that infringes his constitutionally protected
interests -- especially his interest in freedom of speech -- does not apply to this case.
In 44 Liquormart, the Rhode Island ordinance banned liquor price advertising. The
ordinance, therefore, did not regulate the time, place, or manner, but rather totally
suppressed the commercial speech involved. The Court merely reaffirmed that a state
may not ban truthful, nonmisleading commercial speech, the Twenty-first Amendment
notwithstanding.
Mobile has not banned nude dancing. In LaRue, the Court noted that “. . . the
critical fact is that California has not forbidden these performances across the board.
It has merely proscribed such performances in establishments that it licenses to sell
liquor by the drink.” 409 U.S. at 118.
14
KRAVITCH, Senior Circuit Judge, dissenting:
Instead of a generally applicable proscription on public nudity or a general
prohibition on nudity in establishments licensed to serve alcohol, the City of Mobile
chose to address “the combustible mixture of alcohol and nudity” by singling out
traditionally protected forms of expression for criminal sanction. Although I agree with
the majority that there is no “constitutional right to drink while watching nude dancing,”
the Constitution does confer a right to be free from government regulation that prohibits
expressive conduct on the basis of content. Because I believe that the majority
fundamentally misapprehends the restrictions that the First Amendment imposes upon
governmental power to regulate expression, I respectfully dissent.
I.
A.
Preliminarily, I take issue with the majority’s apparent assumption that because
Ordinance 03-003 does not ban nude dancing outright, but rather merely conditions the
right to present entertainment involving nudity on the surrender of a liquor license, the
Ordinance does not significantly burden the exercise of First Amendment rights. The
majority’s reasoning ignores the well-established proposition that
[e]ven though government is under no obligation to provide a person, or the
public, a particular benefit, it does not follow that conferral of the benefit may
be conditioned on the surrender of a constitutional right. In Perry v.
Sindermann, 408 U.S. 593[, 597], 92 S. Ct. 2694[, 2697] (1972), relying on a
host of cases applying that principle during the preceding quarter-century, the
Court explained that government “may not deny a benefit to a person on a basis
that infringes his constitutionally protected interests -- especially his interest in
freedom of speech.”
44 Liquormart, Inc. v. Rhode Island, 517 U.S. ___, 116 S. Ct. 1495, 1513 (1996)
(internal citation omitted). Although the City may regulate the sale or service of
alcohol, it may not condition the conferral of a liquor license -- to which appellants
concede they are not constitutionally entitled -- on the forfeiture of the right to engage
16
in expressive behavior.1 Because the City authorizes the punishment, by fine or
imprisonment, of licensees who “exhibit, suffer, allow, permit, engage in, participate in,
or [are] connected with” one form of expressive behavior, the challenged ordinance
imposes a significant burden upon First Amendment freedoms.2
B.
In denying appellants’ respective motions for preliminary injunctive relief, the
district court relied upon “a long line of [Twenty-first Amendment] cases upholding the
states’ authority to prohibit nude dancing in clubs licensed to sell alcohol.”3 After the
1
The majority concedes that it is well-established that “nude dancing . . . is
expressive conduct within the outer perimeters of the First Amendment . . . .” Barnes
v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S. Ct. 2456, 2460 (1991).
2
I disagree with the majority’s conclusion that the “reference in 44 Liquormart
to the proposition that government may not deny a benefit to a person on a basis that
infringes his constitutionally protected interests . . . does not apply to this case.” The
applicability of the unconstitutional conditions doctrine does not turn on whether
conferral of the discretionary benefit is conditioned upon completely foregoing the
right to engage in expression or instead upon foregoing the right to engage in that
expression in certain places or manners or at certain times. Rather, the doctrine
applies as long as the governmental actor demands some sacrifice of a constitutional
right in exchange for an otherwise discretionary benefit. See FCC v. League of
Women Voters, 468 U.S. 364, 104 S. Ct. 3106 (1984) (invalidating provision of
Public Broadcasting Act that prohibited noncommercial educational television stations
that received public funds from endorsing candidates or editorializing); Pickering v.
Bd. Of Educ., 391 U.S. 563, 88 S. Ct. 1731 (1968) (holding that constitutionally
protected speech is impermissible ground for discharge from public employment).
3
Summary Judgment Order (“Order”) at 6.
17
district court entered the preliminary orders, but before the court ruled on the parties’
motions for summary judgment, the Supreme Court decided 44 Liquormart, Inc. v.
Rhode Island, 517 U.S. ___, 116 S. Ct. 1495 (1996), which dispelled definitively the
notion that the Twenty-first Amendment “qualif[ies] the constitutional prohibition
against laws abridging the freedom of speech embodied in the First Amendment.” Id.
at 1515. The district court recognized that 44 Liquormart foreclosed the argument that
the Twenty-first Amendment “provides an added presumption in favor of validity of
state regulation in the area of topless dancing,”4 but nevertheless concluded that the case
“provided us with the roadmap for upholding” such state regulation.5 In 44 Liquormart,
the Court cited Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456 (1991), for
the proposition that states enjoy the power “to restrict . . . ‘bacchanalian revelries’ . . .
regardless of whether alcoholic beverages are involved.” 44 Liquormart, 116 S. Ct. at1514 (citing Barnes and quoting California v. LaRue, 409 U.S. 109, 118, 93 S. Ct. 390,
397 (1972)). The district court interpreted this reference in 44 Liquormart to mean that
Barnes controls all First Amendment challenges to ordinances regulating nudity.
Following the district court’s lead, the majority, although conceding that 44
Liquormart requires application of First Amendment scrutiny to the ordinance in
4
Order at 8 (internal quotations omitted).
5
Id.18
question, suggests that 44 Liquormart confirms the City’s power to regulate nude
dancing in establishments licensed to sell alcohol. The majority concludes that the
Court’s treatment in 44 Liquormart of earlier First Amendment cases involving state
regulation of alcohol and nude dancing provides support for the conclusion that
Ordinance 03-003 does not offend the First Amendment. In California v. LaRue, 409
U.S. 109, 93 S. Ct. 390 (1972), one of those earlier cases, the Court upheld a regulation
of nude dancing in establishments serving alcohol on the basis of the authority
conferred upon states by the Twenty-first Amendment. In 44 Liquormart, the Court,
“[w]ithout questioning the holding in LaRue, . . . disavow[ed] its reasoning insofar as
it relied on the Twenty-first Amendment.” 116 S. Ct. at 1514. Because the Court in 44
Liquormart stated in dicta that LaRue would have been resolved the same way had the
Court not relied erroneously upon the Twenty-first Amendment, see 44 Liquormart, 116
S. Ct. at 1514 (“We are now persuaded that the Court’s analysis in LaRue would have
led to precisely the same result if it had placed no reliance on the Twenty-first
Amendment.”), the majority concludes that Ordinance 03-003 likewise should survive
First Amendment scrutiny.
This case presents this circuit’s first occasion to address the impact of 44
Liquormart on state power to regulate nude dancing and the continued vitality of LaRue.
In LaRue, the Court addressed the constitutionality of California Department of
19
Alcoholic Beverage Control regulations that prohibited various forms of sexual conduct
in licensed establishments. The Court, noting that “[t]he state regulations here
challenged come to us, not in the context of censoring a dramatic performance in a
theater, but rather in a context of licensing bars and nightclubs to sell liquor by the
drink,” LaRue, 409 U.S. at 114, 93 S. Ct. at 395, reviewed the regulations under a
standard considerably more deferential than it ordinarily reviews prohibitions targeted
at protected expressive behavior. In light of what the Court believed to be “the added
presumption in favor of the validity of the state regulation in this area that the Twenty-
first Amendment requires,” id. at 118-19, 93 S. Ct. at 397, the Court decided that the
Department’s regulations were not “irrational” or “unreasonable,” id. at 116, 93 S. Ct.
at 396. The Court’s discussion of the state’s authority to regulate conduct with a
communicative element, however, is hard to square with later decisions. The Court in
LaRue stated:
While we agree that at least some of the performances to which these regulations
address themselves are within the limits of the constitutional protection of
freedom of expression, the critical fact is that California has not forbidden these
performances across the board. It has merely proscribed such performances in
establishments that it licenses to sell liquor by the drink.
20
Id. at 118, 93 S. Ct. at 397. Precedent now makes clear that a state cannot condition a
benefit on a forfeiture of First Amendment rights, see 44 Liquormart, 116 S. Ct. at 1513,
or regulate the time, place, or manner of protected expression with content-based
prohibitions, see Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746,
2753 (1989) (“[T]he government may impose reasonable restrictions on the time, place,
or manner of protected speech, provided the restrictions ‘are justified without reference
to the content of the regulated speech . . . .’” (quoting Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 3069 (1984)). Although the 44
Liquormart Court, in dicta, did not disturb the holding of LaRue, the Court eviscerated
the basis for that decision. The 44 Liquormart Court squarely addressed whether the
Twenty-first Amendment “qualif[ies] the constitutional prohibition against laws
abridging the freedom of speech embodied in the First Amendment,” 116 S. Ct. at 1515,
but it did not have before it, as did the Court in LaRue and as does our court now, a
regulation prohibiting nude dancing in establishments with liquor licenses. The Court
therefore had no occasion to evaluate closely the constitutionality of such an ordinance.6
6
N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S. Ct. 2599 (1981),
and Newport v. Iacobucci, 479 U.S. 92, 107 S. Ct. 383 (1986), cited by the majority,
likewise cannot provide support for the regulatory authority the City seeks to exercise.
In Bellanca, the Court upheld a statute prohibiting nude dancing in establishments
licensed to sell liquor. The sole basis of the Court’s holding, however, was the power
that it believed the Twenty-first Amendment conferred upon states to regulate alcohol.
The Court concluded that “[j]udged by the standards announced in LaRue and Doran
21
Unlike the majority, I do not believe that the dicta in 44 Liquormart compels us to
uphold the ordinance challenged here.
C.
The majority reads 44 Liquormart to require this court to review the challenged
ordinance under the intermediate scrutiny applied in United States v. O’Brien, 391 U.S.
367, 88 S. Ct. 1673 (1968). O’Brien scrutiny is appropriate when a generally applicable
[v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561 (1975), which followed LaRue], the
statute at issue here is not unconstitutional.” 452 U.S. at 717, 101 S. Ct. at 2601.
Relying upon a greater-includes-the-lesser rationale that has since been discredited, see
44 Liquormart, 116 S. Ct. at 1512; infra Section I.C, at note 7, the Court reasoned that
the “State’s power to ban the sale of alcoholic beverages entirely includes the lesser
power to ban the sale of liquor on premises where topless dancing occurs,” Bellanca,
452 U.S. at 7187, 101 S. Ct. at 2601, and that “[w]hatever artistic or communicative
value may attach to topless dancing is overcome by the State’s exercise of its broad
powers arising under the Twenty-first Amendment,” id. at 718, 101 S. Ct. at 2602.
Bellanca thus rests upon a jurisprudential underpinning no longer followed by the Court.
Likewise, the Court in Iacobucci, following LaRue and Bellanca, upheld an
ordinance prohibiting “performing nude or nearly nude” in establishments licensed to
sell liquor. 479 U.S. at 93 n.1, 107 S. Ct. at 384 n.1. The sole rationale advanced by the
Court in upholding the regulation was the power that the Court believed the Twenty-
first Amendment conferred upon states to regulate alcohol. See id. at 97, 107 S. Ct. at
386 (“‘Given the added presumption in favor of the validity of the . . . regulation in this
area that the Twenty-first Amendment requires,’ it is plain that, as in Bellanca, the
interest in maintaining order outweighs the interest in free expression by dancing
nude.”) (quoting LaRue, 409 U.S. at 118-19, 93 S. Ct. at 397). After 44 Liquormart,
Bellanca and Iacobucci appear to lack precedential value.
22
regulation not directed at the communicative elements of conduct nevertheless infringes
rights of free expression. See O’Brien, 391 U.S. at 376-77, 88 S. Ct. at 1678-79.
O’Brien scrutiny involves the application of a four-part test:
[A] government regulation is sufficiently justified if it is within the constitutional
power of the Government; if it furthers an important or substantial government
interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment
freedoms is no greater than is essential to the furtherance of that interest.
Id. at 377, 88 S. Ct. at 1679. The majority concludes that the Supreme Court’s decision
in Barnes v. Glen Theatres, Inc., 501 U.S. 560, 111 S. Ct. 2456 (1991), which reviewed
under O’Brien scrutiny a challenge to Indiana’s prohibition on public nudity as applied
to nude dancing, controls the case sub judice and accordingly that this court should
apply the O’Brien four-part test.
In Barnes, the Court addressed the constitutionality of Indiana’s “prohibition
against complete nudity in public places,” 501 U.S. at 564, 111 S. Ct. at 2459, as
applied to establishments that provide totally nude dancing as entertainment. The
Court, although
23
recognizing that nude dancing “is expressive conduct within the outer perimeters of the
First Amendment, though . . . only marginally so,” id. at 566, 111 S. Ct. at 2460,
concluded that the law was valid because it was supported by a state interest in
protecting order and morality, was not targeted at “the erotic message conveyed by the
dancers,” and imposed requirements no greater than those necessary to serve the state
interest, id. at 567-572, 111 S. Ct. at 2461-63.
Barnes, however, does not control the case sub judice. The statute challenged in
Barnes, although using the identical definition of “nudity” as the ordinance challenged
here, did not single out one form of expression for disfavored treatment. The Indiana
statute provided:
A person who knowingly or intentionally, in a public place: (1) engages in sexual
intercourse; (2) engages in deviate sexual conduct; (3) appears in a state of
nudity; or (4) fondles the genitals of himself or another person; commits public
indecency, a Class A misdemeanor.
Ind. Code § 35-45-4-1 (1988), quoted in Barnes, 501 U.S. at 569 n.2, 111 S. Ct. at 2462
n.2. In contrast, the ordinance challenged here makes it unlawful “knowingly to exhibit,
suffer, allow, permit, engage in , participate in, or be connected with, any motion
picture, show, performance, or other presentation upon the licensed premises, which,
24
in whole or in part, depicts nudity or sexual conduct or any simulation thereof.” City
of Mobile Ord. 03-003 (emphasis added). Unlike the statute upheld in Barnes, which
focused on nudity simpliciter and not on forms of expressive conduct or the messages
they convey, the City of Mobile ordinance applies only to forms of conduct that are
inherently -- and traditionally -- communicative: motion pictures, shows, performances,
and “other presentation[s].” Cf. Int’l Eateries of Am. v. Broward County, 941 F.2d
1157, 1161 (11th Cir. 1991) (noting distinction between generally applicable, content-
neutral regulations and those prohibiting conduct “precisely because of its
communicative attributes”)(quoting Barnes, 501 U.S. at 577, 111 S. Ct. at 2466 (Scalia,
J., concurring in the judgment) (emphasis omitted)), cert. denied, 503 U.S. 920, 112 S.
Ct. 1294 (1992). A regulation that by its terms prohibits only traditional forms of
expression cannot be said to be unrelated “to the suppression of free expression within
the meaning of O’Brien . . . [and thus is] outside of O’Brien’s test altogether.” Texas
v. Johnson, 491 U.S. 397, 410, 109 S. Ct. 2533, 2543 (1989).7
7
En route to concluding that O’Brien intermediate scrutiny controls the case
before us, the majority argues that the as-applied challenge in Barnes was simply a
claim that the Indiana statute “was unconstitutional because it prohibited nude
dancing” and thus that the claim in Barnes was the “same claim [that] is made against
the Mobile ordinance.” With all due respect, I believe that the majority
misapprehends the difference between an as-applied challenge to a content-neutral
regulation and a facial challenge to a content-based regulation.
The statute challenged in Barnes did not by its terms specifically proscribe nude
dancing, but rather prohibited all public nudity -- and thereby incidentally prohibited
25
This court often has distinguished regulations proscribing nudity per se, including
general proscriptions on nudity in particular fora, from regulations targeted at expressive
conduct. In Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir. 1982), we
upheld a city ordinance banning nudity on premises where alcohol was served. The
ordinance, unlike the one before us now, did not single out nudity in “any motion
picture, show, performance, or other presentation,” but rather simply banned all nudity
some otherwise lawful expression. That the claim raised by the respondents in that
case sounded in the First Amendment does not mean that their claim was identical to
the one made by appellants in the case before us. Courts long have distinguished
between content-based regulations targeted at expression, on the one hand, and
generally applicable, content-neutral regulations that incidentally burden expressive
freedoms, on the other. See generally L. Tribe, American Constitutional Law §§ 12-2,
12-3 (1988). Simply because it is within governmental power to accomplish a
particular end, such as a categorical ban on nudity that a fortiori includes a more
specific ban on nude dancing, does not mean that any means chosen will satisfy the
requirements of the First Amendment. Rather, the First Amendment often requires
courts to invalidate regulations that accomplish ends that lawfully could be achieved
by different means. Compare Texas v. Johnson, 491 U.S. 397, 406-410, 109 S. Ct.
2533, 2540-2543 (1989) (invalidating state law that prohibited “desecration of
venerated object[s],” because by singling out symbolic objects for protection, the
state’s asserted interest was implicated only when “a person’s treatment of the flag
communicates some message”), with O’Brien, 391 U.S. at 370, 88 S. Ct. at 1675
(upholding conviction for burning draft card under statute that proscribed “knowingly
destroy[ing]” or “knowingly mutilat[ing]” a Selective Service Registration certificate).
Indeed, the First Amendment stands in part for the proposition that the greater power
–- in this case, the authority to regulate nudity -- does not always include the lesser
power -- in this case, the authority to ban solely expressive conduct involving nudity.
See 44 Liquormart, 116 S. Ct. at 1512 (rejecting greater-includes-the-lesser reading
of the First Amendment and stating that “[t]he text of the First Amendment makes
clear that the Constitution presumes that attempts to regulate speech are more
dangerous than attempts to regulate conduct”).
26
in establishments offering alcohol for sale. Id. at 944 n.2. Because the regulation thus
was not targeted at traditionally expressive behavior, we applied O’Brien scrutiny and
upheld the ban. In Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985),
however, we invalidated a ban almost identical to that in Grand Faloon because, unlike
the ban in Grand Faloon, which was supported by a legitimate and substantial
government interest in regulating activities likely to lead to breaches of the peace, the
record demonstrated that the city’s motive was to restrict expression. 759 F.2d at 855-
56. Both cases addressed regulations that facially banned all nudity in establishments
licensed to serve alcohol, rather than solely nudity in the course of traditionally
expressive forms of conduct. See Krueger, 759 F.2d at 853-54 n.3; Grand Faloon, 670
F.2d at 944 n.2.
Ordinance 03-003 on its face singles out nude entertainment and thus the “erotic
message conveyed” by that conduct. Barnes, 501 U.S. at 570, 111 S. Ct. at 2463.
Ordinance 03-003 would not by its terms apply, for example, to a nude waitress serving
drinks at a licensed establishment or to a patron entering such a club nude, whereas it
would apply to a production of “Hair” or “Equus” -- or any other artistic production that
includes nudity, however minor or incidental – at a club licensed to sell alcohol. Cf.
Barnes, 501 U.S. at 585 n.2, 111 S. Ct. at 2470 n.2 (Souter, J., concurring in the
judgment) (“It is difficult to see . . . how the enforcement of Indiana’s statute against
27
nudity in a production of ‘Hair’ or ‘Equus’ somewhere other than an ‘adult’ theater
would further the State’s interest in avoiding harmful secondary effects . . . .”). Instead
of targeting nudity per se, which clearly is a permissible exercise of municipal or state
authority, see Barnes, supra, the Mobile ordinance targets only conduct with
communicative elements.8 Because courts consistently have reviewed such content-
based restrictions with a level of scrutiny more searching than O’Brien scrutiny, which
we have applied to generally applicable, content-neutral regulations, the majority is
incorrect to conclude, simply because the claim before the court is a challenge to a nudity
ordinance, that Barnes’s O’Brien scrutiny is appropriate in this case.9
8
The majority suggests that “[w]e cannot assume that any regulation
addressing nude dancing is a content regulation,” because “controversy rages both in
academia and society at large” over what precise message nude dancing conveys. I
would have thought, however, that an ordinance targeted at communicative activities
that express multiple messages is as invidious as, if not more so than, an ordinance
that targets merely one message. One need only consider a simple example to see how
subversive of basic First Amendment values the majority’s reasoning is: an ordinance
banning all dancing would suppress a wide array of messages that could be conveyed
by dancing, yet, according to the majority, that regulation would be permissible
because “we cannot assume” that it targets any one particular message.
9
Moreover, contrary to the majority’s unsupported assertion, the Court in 44
Liquormart did not suggest that Barnes’s O’Brien scrutiny should apply in all cases
involving ordinances regulating nudity. Instead, the Court merely cited Barnes to
support the statement that “the Court has recognized that the States’ inherent police
powers provide ample authority to restrict the kind of ‘bacchanalian revelries’
described in the LaRue opinion regardless of whether alcoholic beverages are
involved.” 44 Liquormart, 116 S. Ct. at 1514. I doubt that the Court, in announcing
a decision that restricted governmental power to regulate speech, meant to suggest that
28
D.
Because I believe that the majority applies the wrong level of scrutiny, I address
the City’s argument that time, place, and manner scrutiny -- another form of intermediate
scrutiny -- is applicable in this case. In my view, in determining the appropriate level of
scrutiny, this court should look to the character of the regulation. If the regulation is
content-based -- because it singles out one form of expression for disfavored treatment --
then searching scrutiny is appropriate. See Boos v. Barry, 485 U.S. 312, 321, 108 S. Ct.
1157, 1164 (1988). If, on the other hand, the regulation is content-neutral -- because it
is justified not by “reference to the content of the regulated speech,” Va. Pharmacy Bd.
v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S. Ct. 1817, 1830 (1976),
but rather to the “secondary effects” of that speech, see Renton v. Playtime Theaters,
Inc., 475 U.S. 41, 47, 106 S. Ct. 925, 929 (1986) -- then less-searching time, place, and
manner scrutiny may be appropriate, see id. at 46, 106 S. Ct. at 928.
The City contends, and the majority agrees, that the Ordinance was not
promulgated because of a disagreement with the message conveyed by nude dancing,
but rather was an attempt to regulate the secondary effects of nude dancing. The City
courts now should evaluate content-based regulations under the more-deferential
O’Brien standard of review. Instead, the Court’s citation to Barnes merely confirms
that states and municipalities presumptively may regulate nudity with generally
applicable, content-neutral ordinances -- ordinances wholly unlike that passed by the
City in this case.
29
and the majority rely upon Renton, supra, Young v. Am. Mini Theaters, Inc., 427 U.S.
50, 96 S. Ct. 2440 (1976), and Int’l Eateries of Am. v. Broward County, 941 F.2d 1157,
1161 (11th Cir. 1991), cert. denied, 503 U.S. 920, 112 S. Ct. 1294 (1992). In Renton and
Young, the Court upheld zoning ordinances restricting the permissible locations for
adult theaters that presented nude dancing. Although the regulations challenged in
those cases “treat[ed] theaters that specialize in adult films differently from other kinds
of theaters,” Renton, 475 U.S. at 47, 106 S. Ct. at 929, and thus at first blush seemed to
be content-based, the Court in each case concluded that the regulations were justified
without reference to the content of the regulated speech because they were “aimed not
at the content of the films . . ., but rather at the secondary effects of such theaters on the
surrounding community,” id. (emphasis in original); accord Young, 427 U.S. at 71 n.34,
96 S. Ct. at 2453 n.34. In Renton, for example, the Court upheld the district court’s
conclusion that the “city’s pursuit of its zoning interests here was unrelated to the
suppression of free expression” because the Court believed that the ordinance “by its
terms [was] designed to prevent crime, protect the city’s retail trade, maintain property
values, and generally protect and preserve the quality of the city’s neighborhoods,
commercial districts, and the quality of urban life.” Id. at 48, 106 S. Ct. at 929; accord
Young, 427 U.S. at 71 n.34, 96 S. Ct. at 2453 n.34 (noting that “[i]t is [the] secondary
30
effect [of crime and urban deterioration] which these zoning ordinances attempt to
avoid, not the dissemination of ‘offensive’ speech”).
In International Eateries, this court applied Renton to uphold a local zoning
ordinance restricting the permissible locations for clubs presenting non-obscene nude
dancing. Applying time, place, and manner scrutiny, this concluded that the challenged
ordinance: (1) furthered a substantial governmental interest in “protecting the quality
of urban life from the secondary effects of adult businesses,” 941 F.2d at 1162; (2) was
narrowly tailored to further that interest because it focused only on those businesses
likely to cause secondary effects, id. at 1163; and (3) allowed reasonable alternative
avenues of communication because there were “sufficient alternative locations” where
the theaters could lawfully operate, id. at 1165.10
The significant difference between the ordinance challenged in International
Eateries and the one challenged here, however, is that the former was a zoning
ordinance, whereas the one in the case before us is a direct regulation of expressive
10
We applied the Renton secondary-effects analysis in
International Eateries because at issue was the validity of a
zoning ordinance similar to that considered in Renton and Young.
See 941 F.2d at 1161. Distinguishing Barnes, we concluded that
O’Brien scrutiny was inappropriate because the regulation
“single[d] out nude dancing rather than broadly prohibiting all
public nudity.” Id.31
conduct.11 Closely read, Renton, Young, and International Eateries apply only to zoning
ordinances. See Renton, 475 U.S. at 49, 106 S. Ct. at 929-30 (“[Z]oning ordinances
designed to combat the undesirable secondary effects of such businesses are to be
reviewed under the standards applicable to ‘content-neutral’ time, place, and manner
regulations.”) (emphasis added); Young, 427 U.S. at 71, 96 S. Ct. at 2453 (“[W]hat is
ultimately at stake is nothing more than a limitation on the place where adult films may
be exhibited . . . .”); Int’l Eateries, 941 F.2d at 1159 (“[T]he Supreme Court has held
that under some circumstances cities may enact zoning ordinances that require adult
movie theatres to locate only in certain areas, provided that the purpose of the regulation
is to control the secondary effects of these businesses.”) (emphasis added) (internal
quotation omitted); see also Buzetti v. City of New York, __ F.3d __, No. 97-7585, (2d
Cir. March 20, 1998) (upholding city’s “Zoning Amendment,” which “does not forbid
the operation of any category of business [but i]nstead . . . restricts the areas in which
certain sexually-oriented businesses may operate”). Indeed, zoning regulations are
amenable to time, place, and manner scrutiny at least in part because, although they
restrict the locations available for a given use, they generally leave some areas open for
11
Contrary to the majority’s suggestion, Ordinance 03-003 does not seek
“geographically[] to separate adult entertainment establishments from other
commercial establishments.” (Emphasis added). Instead, the Ordinance seeks
categorically to ban nude dancing in establishments -- wherever they may be located --
that serve alcohol.
32
the disfavored use. See Renton, 475 U.S. at 54, 106 S. Ct. at 932 (“[The City has]
sought to make some areas available for adult theaters and their patrons, while at the
same time preserving the quality of life in the community at large by preventing those
theaters from locating in other areas. This, after all, is the essence of zoning.”); Young,
427 U.S. at 71 n.35, 96 S. Ct. at 2453 n. 35.
Unlike the zoning ordinances upheld in Young, Renton, and International
Eateries, which preserved for adult entertainment “ample, accessible real estate,”
Renton, 475 U.S. at 53, 106 S. Ct. at 932, the City of Mobile’s regulation prohibits
establishments that wish to serve alcohol and present nude dancing from operating
anywhere. Of course, as the City and the majority point out, appellants are free to
provide nude dancing at their current locations as long as they are willing to forego the
privilege of serving alcohol. As already stated, however, see supra Section I.A, this
argument ignores the well-established proposition that government may not condition
the “conferral of [a] benefit . . . on the surrender of a constitutional right.” 44
Liquormart, 116 S. Ct. at 1513. Although the Supreme Court and this circuit have
upheld zoning regulations that, as measures of social policy, have dissipated or
segregated the effects of adult theaters, neither has, without relying on a now-discredited
view of the Twenty-first Amendment, upheld an outright ban targeted solely at conduct
33
protected by the First Amendment.12 Because I conclude that the secondary-effects
exception is inapplicable in this case, I believe that this court should analyze Ordinance
03-003 as a content-based restriction.
E.
My conclusion that Ordinance 03-003 is a content-based restriction on protected
expression that must be evaluated under searching judicial scrutiny finds strong support
in case law. This court has distinguished between regulations of nudity that permissibly
(and incidentally) burden protected expression and regulations that impermissibly target
protected expression for sanction. In Leverett v. City of Pinellas Park, 775 F.2d 153612
In Barnes, Justice Souter argued in his concurrence that Indiana could justify
application of a generally applicable proscription of public nudity to nude dancing
because the state has a legitimate and substantial government interest in combatting
the secondary effects of adult entertainment. His concurrence, however, simply
sought to justify the burden on First Amendment freedoms imposed by application of
a content-neutral statute to expressive behavior -- a result contemplated by O’Brien --
and did not suggest that a prohibition, other than a zoning regulation, targeted at
expressive behavior could be justified by reference to the secondary effects of the
targeted behavior.
Likewise, in Café 207, Inc. v. St. Johns County, 66 F.3d 272 (11th Cir. 1995),
aff’g 856 F. Supp. 641 (M.D.Fla. 1994), this court affirmed the district court’s
conclusion that the governmental-interest prong of the O’Brien test was satisfied
because, inter alia, the regulation combatted the secondary effects of nudity in adult
entertainment. 856 F. Supp. at 644. Like the statute in Barnes, the ordinance
challenged in Café 207 was a generally applicable, and not a content-based,
prohibition on public nudity. The majority’s reliance on Café 207 thus is misplaced.
34
(11th Cir. 1985), this court upheld against a First Amendment challenge an ordinance
prohibiting nudity in the course of food and drink service because the ordinance did not
apply to protected expression, such as dancing. See id. at 1540. The court struck down
a companion ordinance that prohibited “nude or semi-nude entertainment in any
commercial establishment,” id. at 1537 (emphasis added), however, because, as a direct
regulation of conduct protected by the First Amendment, the court subjected it to “the
stricter standard typically used to review an infringement on a protected liberty interest
justified solely under the government’s police power,” id. at 1540 (citing Krueger v.
City of Pensacola, 759 F.2d 851 (11th Cir. 1985)). The court noted that in order to
justify a content-based regulation of protected expression, the city had an obligation to
“come forth with more than simply an articulation of some legitimate interest that the
city could have had to justify its prohibition.” Leverett, 775 F.2d at 1540 (internal
quotations omitted).13 Although the conclusory language contained in the ordinances
that “competitive commercial exploitation of nudity is adverse to the public health,
peace, morals and good order, and [that] it is in the best interest of the public health,
safety and convenience to restrict such nudity . . . ,” id. at 1539, was sufficient to justify
13
See Leverett, 775 F.2d at 1540 (“When a fundamental interest such as
freedom of expression is regulated, the City must also show that the legitimate
concern it articulates has ‘more than merely speculative factual grounds, and that it
was actually a motivating factor in the passage of the legislation.’”) (quoting Krueger
v. City of Pensacola, 759 F.2d 851, 855 (11th Cir. 1985)).
35
the ordinance generally proscribing nudity in the course of food service because that
ordinance did not “on its face govern activity protected by the First Amendment,” id.
at 1540, the language could not save the ordinance prohibiting nude entertainment.
The ordinance invalidated in Leverett, which was targeted solely at expressive
conduct, is indistinguishable from the one challenged here. See also BSA, Inc. v. King
County, 804 F.2d 1104, 1107-08 (9th Cir. 1986) (enjoining operation of statute explicitly
banning “common barroom type topless dancing” because the “[p]rohibition of a
category of protected expression, including that which is sexually explicit, can be
upheld only where it furthers a substantial governmental interest unrelated to
suppression of free expression . . . and where the governmental interest could not be
served by a means less intrusive on First Amendment activity”). I am convinced that
this court should review Ordinance 03-003, as well, under “the stricter standard
typically used to review an infringement on a protected liberty interest justified solely
under the government’s police power.” Leverett, 775 F.2d at 1540.
F.
In my view, the City has not satisfied this stricter standard. To survive First
Amendment scrutiny, the City must, at a minimum, demonstrate that its interest in
regulating the conduct at issue in this case “is based on something other than a desire
36
to censor the communication because of the community’s dislike of its content.”
Krueger, 759 F.2d at 854. The City argues that it acted to address the adverse
secondary effects of nude dancing combined with alcohol consumption and that the
preamble to Ordinance 03-003 makes clear that the City was not targeting the message
of the expressive conduct, but rather was combatting the secondary effects of that
behavior.14 The interests stated in the Ordinance’s preamble -- discouraging
“undesirable behavior” and avoiding “disturbances” -- are, of course, legitimate
governmental interests. As in Leverett, however, “the City has made no showing as to
the factual basis for its articulated concerns and the motivation for passage of [the
ordinance] beyond the conclusions stated in the ordinance itself,” 775 F.2d at 1540, a
showing that is insufficient to “justify its infringement on protected expression,” id.The majority concludes that the City permissibly relied upon other cities’ findings that
the commingling of alcohol and nudity produces undesirable effects. Although the
majority is correct that “[t]he First Amendment does not require a city, before enacting
[a zoning] ordinance, to conduct new studies or produce evidence independent of that
14
Indeed, an argument by the City that it was worried about the effects of adult
entertainment alone, as was the city in Renton, 475 U.S. at 50, 106 S. Ct. at 930, rather
than the effects of the entertainment combined with alcohol consumption, would be
unconvincing because the City still permits nude dancing; Sammy’s has been
presenting nude dancing (without alcohol) since this litigation began, yet has not
violated Ordinance 03-003.
37
already generated by other cities, so long as whatever evidence the city relies upon is
reasonably believed to be relevant to the problem that the city addresses,” Renton, 475
U.S. at 51, 106 S. Ct. at 931 (emphasis added),15 this court consistently has required a
significantly stronger showing to justify content-based regulations of expressive
behavior outside of the zoning context, see, e.g., Leverett, 775 F.2d at 1540. The mere
assertion, unsupported by any legislative findings, that a city seeks to address the
undesirable secondary effects of a disfavored activity is insufficient to justify a
regulation that by its terms prohibits only conduct that is protected by the First
Amendment.
15
Accord Int’l Eateries, 941 F.2d at 1162 (holding that a city “need not conduct
its own studies” in order to “have a reasonable basis for its belief that the harm to be
protected against [by the zoning ordinance] in fact exists”). Likewise, the proof
requirements for regulations that are not targeted at expression may be relaxed. See
Barnes, 501 U.S. at 584-85, 111 S. Ct. at 2470 (Souter, J., concurring in the judgment)
(“[L]egislation seeking to combat the secondary effects of adult entertainment need not
await localized proof of those effects . . . . I do not believe that a State is required
affirmatively to undertake to litigate this issue repeatedly in every case.”). But cf.
Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135-36 (6th Cir. 1994) (holding that
“because the City has failed to demonstrate a link between nudity in non-adult
entertainment and secondary effects, we do agree with the district court that the Akron
ordinance must be struck down as facially unconstitutional under the First Amendment
overbreadth doctrine”; stating that “[t]he ordinance makes no attempt to regulate only
those expressive activities associated with harmful secondary effects and includes no
limiting provisions”). Contrary to the majority’s suggestion however, this court
never has allowed a state or municipality to enact a content-based restriction on
expression based upon a mere showing that other localities have identified an evil to be
addressed.
38
Even if the City had made findings, moreover, I have serious doubts that the
City’s interest in discouraging undesirable behavior and avoiding disturbances would
be sufficient to justify Ordinance 03-003's content-based restriction. Furthermore,
given the availability of alternative regulatory means that could accomplish the City’s
avowed goals without singling out protected expression for sanction, see infra Section
II, in my view Ordinance 03-003 could not satisfy the means scrutiny that the First
Amendment requires. I therefore would hold that the district court erred in granting
summary judgment in favor of the City on appellants’ First Amendment claim and that
the district court should have granted summary judgment in favor of appellants on their
facial challenge to Ordinance 03-003.
II.
This court does not have before it a generally applicable proscription on public
nudity, see, e.g., Barnes, 501 U.S. at 569 n.2, 111 S. Ct. at 2462 n.2, or a general
prohibition on nudity in establishments licensed to serve alcohol that is not limited
solely to expressive conduct, see, e.g., Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d
943, 944 n.2 (11th Cir. 1982). Presumably, either of those approaches would have
39
accomplished the City’s avowed goals and survived First Amendment scrutiny.16
Instead, the City of Mobile chose to address the problems associated with “nudity,
sexual conduct[,] and [the] depiction thereof[] coupled with alcohol in public places,”
City of Mobile Ord. 03-003, by subjecting to criminal sanction only activity clearly
recognized to be within the protection of the First Amendment. Because I believe that
the First Amendment prohibits the City of Mobile from enacting such a regulation and
that the majority has misapplied long-established First Amendment principles, I
respectfully DISSENT.
16
Of course, these approaches could fail First Amendment scrutiny if they were
merely intended to mask a governmental motive to suppress protected expression. See
Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir. 1985).
40