Odle v. Decatur Cnty TN , 421 F.3d 386 ( 2005 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 05a0368p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
DOUGLAS; JENIFER COSIMANO; and JANE DOES I and -
HERBERT ODLE, d/b/a SPORTS CLUB, INC.; SHERILL
-
-
II,
Plaintiffs-Appellants, -
No. 03-6532
,
>
v. -
-
-
-
DECATUR COUNTY, TENNESSEE; the DECATUR
-
COUNTY COMMISSION; and the DECATUR COUNTY
Defendants-Appellees, -
ADULT-ORIENTED ESTABLISHMENT BOARD,
-
-
-
Intervenor-Defendant-Appellee. -
THE STATE OF TENNESSEE,
-
N
Appeal from the United States District Court
for the Western District of Tennessee at Jackson.
No. 02-01278—James D. Todd, Chief District Judge.
Argued: December 3, 2004
Decided and Filed: August 26, 2005
Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.*
_________________
COUNSEL
ARGUED: Lloyd R. Tatum, TATUM & TATUM, Henderson, Tennessee, for Appellants. Steven
A. Hart, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.
ON BRIEF: Lloyd R. Tatum, TATUM & TATUM, Henderson, Tennessee, for Appellants. Steven
A. Hart, OFFICE OF THE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees.
*
The Honorable William O. Bertelsman, United States District Judge for the Eastern District of Kentucky,
sitting by designation.
1
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 2
_________________
OPINION
_________________
CLAY, Circuit Judge. Herbert Odle and four dancers at his adult business (collectively
“Plaintiffs”) appeal the district court’s grant of summary judgment in favor of Defendants Decatur
County, Tennessee (the “county” or “Decatur County”), the Decatur County Commission (the
“Commission”), the Decatur County Adult-Oriented Establishment Board (the “Board”) and
Intervenor-Defendant the State of Tennessee.1 Plaintiffs assert that on its face Tennessee’s Adult-
Oriented Establishment Registration Act, Tenn. Code Ann. §§ 7-51-1101 et seq. (the “Act”),
amounts to an unconstitutional prior restraint on protected expression. They also assert that a related
county ordinance is overbroad and, even if not overbroad, includes substantive regulations that
violate the First Amendment. After hearing oral argument, we held the case in abeyance pending
the release of the en banc Court’s decision in Deja Vu of Cincinnati, L.L.C. v. The Union Township
Bd. of Trs., 411 F.3d 777 (6th Cir. June 21, 2005), a decision that bears on Plaintiffs’ prior restraint
claim. We now AFFIRM in part and REVERSE in part.
I. BACKGROUND
In April 2000, Plaintiff Herbert Odle began operating Sports Club, a business where nude
and semi-nude dancing is presented for entertainment and beer is sold. Sports Club is located in a
rural portion of Decatur County, Tennessee. Plaintiffs Jenifer Cosimano and Sherill Douglas are
dancers employed by Sports Club; as are Plaintiffs Jane Doe I and II.
On May 22, 2000, the Decatur County Commission adopted for local effect the Tennessee
Adult-Oriented Establishment Registration Act, Tenn. Code Ann. §§ 7-51-1101 et seq., and pursuant
to it, established the Decatur County Adult-Oriented Establishment Board. In addition, the
Commission passed an ordinance (the “ordinance”) prohibiting nudity and sexually suggestive
conduct at a wide range of public places where alcohol is sold, served, or consumed. The Act
requires all operators of “adult-oriented establishments,” which Sports Club is conceded to be, to
obtain licenses from the Board. The Act also regulates the entertainment offered at adult
establishments. Establishments in existence at the time the Act was adopted are afforded a 120-day
grace period during which to apply for a license and pursue judicial review should the license be
denied.
On July 11, 2002, the Board had its first meeting and determined that the 120-day grace
period for establishments already in existence would begin on that day. On July 19, 2002, the
Decatur County Attorney informed Odle by letter that the county would seek to enforce the licensing
provision against him if he had not obtained a license within 120 days of July 11, 2002, i.e., by
November 8, 2002. Odle did not and has not applied for a license from the Board. Instead, on
November 7, 2002, he and his co-plaintiffs filed a complaint in the Western District of Tennessee,
naming the county, the Commission, and the Board as defendants. The complaint alleged a number
of claims, only some of which are on appeal and at least one of which was deemed waived at the
summary judgment stage for failure to present a discernable argument. The claims on appeal are
as follows: that the Act’s licensing scheme amounts to an unconstitutional prior restraint on
protected expression; that unspecified substantive provisions of the Act would infringe on Plaintiffs’
freedom of expression; and that the ordinance is unconstitutionally overbroad or alternatively
includes substantive provisions that would violate the First Amendment if applied to adult-oriented
establishments. Plaintiffs sought a declaratory judgment to the effect that the Act and ordinance are
1
Because these defendants jointly filed one brief for this appeal, we refer to them throughout this opinion as
“Defendants,” even though certain of Plaintiffs’ claims may not implicate each defendant.
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 3
unconstitutional. The relief requested was a temporary restraining order barring enforcement of the
Act and the ordinance and, ultimately, permanent injunctive relief against enforcement of both.
On December 3, 2002, the district court issued a temporary restraining order, by mutual
consent of the parties, precluding enforcement of the Act and the ordinance for 90 days, or until the
court ruled on the motion for a preliminary injunction. On February 3, 2003, the court granted
Defendant State of Tennessee’s motion to intervene to defend the constitutionality of the Act.
Plaintiffs filed an amended complaint on June 17, 2003, raising claims that are not at issue in this
appeal.
During July and August 2003, the parties engaged in discovery. The parties then filed cross-
motions for summary judgment, with Plaintiffs renewing their request for permanent injunctions
against enforcement of the Act and ordinance. Another temporary restraining order issued on
September 2, 2003, by consent of the parties. On October 14, 2003, the court granted Defendants’
motion for summary judgment, finding each of Plaintiffs’ constitutional challenges to the Act and
ordinance unpersuasive; judgment was entered on October 20, 2003. Plaintiffs timely filed a notice
of appeal on November 13, 2003 and the next day the district court denied their motion for a stay
pending appeal. A motions panel of this Court denied Plaintiffs’ motion for a stay of enforcement
of the Act and ordinance on March 19, 2004. The Act and ordinance became enforceable on that
day, so we may assume Plaintiffs are not operating Sports Club, at least not as an adult-oriented
establishment.
II. STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo. Kalamazoo Acquisitions,
L.L.C. v. Westfield Insurance Co., Inc., 395 F.3d 338, 341 (6th Cir. 2005); Cockrel v. Shelby County
Sch. Dist., 270 F.3d 1036, 1048 (6th Cir. 2001). Summary judgment shall be granted when “the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law.” FED. R. CIV. P. 56(c). Because Plaintiffs present
facial challenges to the Act and a related ordinance, the resolution of this appeal does not depend
on the resolution of any factual disputes but rather on questions of statutory interpretation and First
Amendment jurisprudence, i.e., questions of law. Finally, because this case was before the district
court on cross motions for summary judgment, we accompany our holding in favor of Plaintiffs on
their overbreadth claim (see discussion infra) with the instruction that the district court enter
judgment in their favor on that claim, which in this case amounts to the issuance of an injunction
permanently enjoining enforcement of the ordinance. See Kalamazoo Acquisitions, 395 F.3d at 342,
345; Relford v. Lexington-Fayette Urban County Gov’t, 390 F.3d 452, 456-57 (6th Cir. 2004).
III. DISCUSSION
A. Prior Restraint Claim
Plaintiffs, not having applied for a license, present a facial challenge to the Act’s licensing
scheme.2 This is a colorable claim at least in theory because while it is not preferred, erotic
entertainment is firmly within the scope of expression protected under the First Amendment. City
of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality opinion); Barnes v. Glen Theatre, Inc.,
501 U.S. 560, 566 (1991) (plurality opinion); Sable Communications of Ca. v. FCC, 492 U.S. 115,
126 (1989). Under the Act, an “adult-oriented establishment” must first obtain a license in order to
2
Plaintiffs have standing to bring such a challenge. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24
(1990) (plurality opinion); Freedman v. Maryland, 380 U.S. 51, 56 (1965); Nightclubs, Inc. v. City of Paducah, 202 F.3d
884, 888-89 (6th Cir. 2000).
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 4
legally do business. Consequently, the Act’s licensing scheme constitutes a prior restraint on
protected expression. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990) (plurality opinion);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554 (1975); Deja Vu of Nashville, Inc. v.
Metropolitan Gov’t of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir. 2001). Because
prior restraints are not unconstitutional per se, the question is whether the prior restraint at issue in
this case passes constitutional muster. Southeastern Promotions, 420 U.S. at 558; Nightclubs, Inc.
v. City of Paducah, 202 F.3d 884, 889 (6th Cir. 2000).
The Supreme Court has long required prior restraint licensing schemes to guarantee
applicants a prompt final judicial decision on the merits of a license denial and preservation of the
status quo while an application or judicial review of a license denial is pending. Freedman v.
Maryland, 380 U.S. 51, 58 (1965); FW/PBS, Inc., 493 U.S. at 229-30; City of Littleton v. Z.J. Gifts
D-4, LLC, 541 U.S. 774, 779-80 (2004). In the seminal Freedman decision, the Supreme Court
suggested that a licensing scheme must place the burden of proof as to whether an applicant’s form
of expression is protected on the government. 380 U.S. at 58. However, it now appears that prompt
judicial review and preservation of the status quo are the only constitutionally indispensable
procedural safeguards. FW/PBS, Inc., 493 U.S. at 228; Deja Vu of Nashville, 274 F.3d at 400-401;
Nightclubs, 202 F.3d at 889-90.
Under the Act, all operators of “adult-oriented establishments” and entertainers employed
by such establishments must obtain licenses from the Board. See Tenn. Code Ann. §§ 7-51-1104,
1105. Applications are reviewed by the Board3according to “reasonably objective, nondiscretionary
criteria unrelated to [expressive] content,” in accordance with the Supreme Court’s latest
pronouncement on licensing. See Littleton, 541 U.S. at 783. In any event, Plaintiffs do not contest
the validity of the criteria for granting or denying license applications; rather, they assert that the Act
does not afford prompt judicial review of adverse licensing decisions. In addition, Plaintiffs
summarily assert that even to the extent judicial review is available, the Act does not preserve the
status quo while such review is pending. Plaintiffs’ arguments are not persuasive; on its face, the
Act provides for prompt judicial review and ensures preservation of the status quo until a final
judicial determination is made. We return to the status quo issue after discussing why the Act
ensures prompt judicial review of license denials.
Under the Act, the first review of a license application may be performed by the county
Sheriff’s department or the Board itself but in any event must be completed no later than 20 days
after the application is filed. Tenn. Code Ann. § 7-51-1106(4). The Board must notify the applicant
within 10 days thereafter whether the application is granted, denied, or held for further investigation.
§ 1105(c). If held for further investigation, such investigation may not exceed an additional 30 days.
Id. If an application is denied, the chair of the Board must notify the applicant of the reasons for the
denial. The applicant has 10 days from receipt of the notification to make a written request for a
public hearing before the Board, which hearing must occur within 15 days of receipt of the
applicant’s request and must conclude with a final Board decision. Tenn. Code Ann. § 7-51-
1110(b). At the hearing, the applicant may present evidence challenging the denial. Id. “If the
[B]oard affirms the denial of the application, the office of the county attorney for such county shall
institute suit for declaratory judgment in a court of record in such county, within five (5) days of the
date of any such denial seeking an immediate judicial determination of whether such application has
3
Under the Act, the application must include, among other things: (1) the applicant’s name and address;
(2) written proof that the applicant is at least 18-years old; (3) information regarding “[t]he business, occupation or
employment of the applicant in an adult-oriented establishment for five (5) years immediately preceding the date of the
application”; (4) information regarding the applicant’s prior license history, including whether any prior licenses have
been revoked or suspended; (5) disclosures of any prior convictions for various criminal acts. Tenn. Code Ann. § 7-51-
1005(b). As stated, Plaintiffs do not challenge the validity of these criteria; we note the Supreme Court and our Court
sitting en banc have approved similar criteria. See Littleton, 541 U.S. at 783; Deja Vu, 411 F.3d at 787-88.
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 5
been properly denied under the law.” Id. § 1110(c) (emphasis added). The Act further requires that
“the applicant shall be entitled to judicial determination of the issues within two (2) days after
joinder of issue, and a decision shall be rendered by the court within two (2) days of the conclusion
of the hearing.” Id. § 1110(d) (emphasis added). It is the Board’s burden at this stage to show that
the license denial was not arbitrary or capricious. Id. § 1110(e).
Thus the Act on its face requires prompt judicial review of an adverse decision by the Board.
Plaintiffs contend that the Act’s promise of judicial review is “illusory” because under the common
law of Tennessee, judges have wide discretion in declaratory judgment actions. Plaintiffs apparently
suggest that despite the Act’s explicit command for a decision within two days of the hearing, Tenn.
Code Ann. § 7-51-1110(d), a Tennessee judge nevertheless retains discretion to decline to hear a
declaratory judgment action brought pursuant to the Act or to rule promptly on the merits.
Defendants counter that the Act explicitly commands judges sitting in review of a Board decision
to determine whether the Board’s decision was proper under the law. We are persuaded that the Act
supercedes any common law discretion committed to judges insofar as declaratory actions under the
Act are concerned. Indeed, the Act specifically affirms that “[t]he provisions of this part mandating
judicial review shall control over general provisions for declaratory judgment actions in the event
of any conflict.” § 1110(f). Under the Supreme Court’s recent decision in City of Littleton on what
constitutes sufficiently prompt judicial review for purposes of a facial challenge to a licensing
scheme, we conclude that the Act’s provisions are more than adequate. City of Littleton, 541 U.S.
at 781-83 (for purposes of facial challenges to licensing schemes, even the mere ability to appeal
to a state court, absent “reason to doubt the willingness of [the state’s] judges to exercise [their]
powers wisely so as to avoid serious threats of delay-induced First Amendment harm,” is sufficient
to satisfy the prompt judicial review requirement); see also Deja Vu of Cincinnati, 411 F.3d at 787-
88.
Plaintiffs next contend the Act does not permit first-time applicants with extant businesses
to enjoy the status quo, i.e., continue to run their businesses as normal, while they await a final
judicial decision on their application. See Freedman, 380 U.S. at 58-59; FW/PBS, Inc., 493 U.S.
at 229-30. This claim is without merit since the Act permits a first-time applicant with a business
in existence at the time of the Act’s adoption to operate as normal for 120 days while it applies for
a license and, if the application is denied, to seek judicial review under the Act’s declaratory
judgment provision. Tenn. Code Ann. § 7-51-1104(e). Plaintiffs do not present any reason for us
to conclude that 120 days is too short a time for completion of an initial application review process,
an appeal to the Board, and a subsequent declaratory judgment action under § 1110(b).4 Indeed, so
far as we can discern, Plaintiffs do not even address the 120-day grace period. Their sole argument
appears to be that the only constitutionally acceptable way to maintain the status quo is by issuing
applicants temporary permits that expire upon a final judicial decision on the merits. But the cases
Plaintiffs cite do not stand for such a clear proposition; they hold only that providing temporary
permits is one constitutionally acceptable way to maintain the status quo, see Deja Vu of Nashville,
274 F.3d at 403; Deja Vu of Kentucky v. Lexington-Fayette Urban County Gov’t, 194 F. Supp. 2d
606, 616-17 (E.D. Ky. 2002), which is what the en banc Court recently reiterated. Deja Vu of
Cincinnati, 411 F.3d at 788 (“Temporary permits are one way to comply with Freedman’s
requirement that ‘[a]ny restraint imposed in advance of a final judicial determination on the merits
must . . . be limited to the preservation of the status quo.’”) (quoting Freedman, 380 U.S. at 59).
4
The initial application review process, culminating in the Board’s first decision on the application, could last
at most 60 days. See Tenn. Code Ann. §§ 7-51-1105(d), -1106(4). A final Board decision on the applicant’s appeal
would usually issue no more than 15 days later, depending on how soon the applicant filed a request for a hearing, and
in no event more than 22 days later. See id. § 1110(b). Within five days of the Board’s final decision adjudicating the
applicant’s appeal, the county attorney would be required to institute an action under § 1110(c), and, within two days
after joinder of issue, the court would be required to hold a hearing to culminate, no later than two days thereafter, in
the issuance of a final decision on the merits. Id. § 1110(d).
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 6
The rule is simply that the status quo must be maintained in some fashion and, assessing the act only
on its face, as we must in this case, we cannot say the Act’s 120-day grace period is insufficient to
that task.
B. Overbreadth Claim
Plaintiffs
6
maintain that a county ordinance5 related to the Act is unconstitutionally
overbroad. The ordinance prohibits, among other things, nudity and the performance of a wide
range of arguably sexually suggestive acts in “public place[s] where intoxicating liquors [ ] are
offered for sale, served or consumed.” Ord. § 1(a). We reprint the ordinance’s complete definition
of “public place” in the margin, but suffice it to say here that the definition is so broad that it is
effectively all-encompassing, exempting only restrooms, showers, medical facilities, motel rooms
and the like, modeling classes at state-accredited schools, and state-licensed “family-oriented
clothing optional facilit[ies]” – places, one would imagine, where performances needing the
protection of the First Amendment do not often occur. 7 Ord. § 1(h). Plaintiffs argue that this
definition is overbroad because it would proscribe myriad performances that involve nudity or
sexually suggestive content but to which the alleged harmful secondary effects that purportedly
motivated the passage of the ordinance do not attend.
The overbreadth doctrine is an extraordinary but firmly-established means of enforcing First
Amendment rights. Traditional standing is not a requirement, i.e., a plaintiff may assert the interests
5
The ordinance lacks a citation (it appears at JA 36-39), so we refer to it only as “the ordinance.” The Decatur
County Commission adopted the ordinance pursuant to Tenn. Code Ann. § 57-5-105, which authorizes Tennessee’s
county legislatures to regulate beer-selling establishments so that the sale of beer does not “interfere with public health,
safety and morals . . . .” § 105(b)(1).
6
In their brief, Plaintiffs also present vague and general assertions to the effect that the Act includes substantive
provisions that violate their First Amendment right to freedom of expression. But Plaintiffs have not identified which
provisions of the Act they object to (there are many) and, in any event, to the extent they offer argument on the
constitutionality of the Act’s substantive provisions their argument is so vague and perfunctory that, like the district
court, we consider this claim waived. See United States v. Demjanjuk, 367 F.3d 623, 638 (6th Cir. 2004); United States
v. Crozier, 259 F.3d 503, 517 (6th Cir. 2001); McPherson v. Kelsey, 125 F.3d 989, 995-96 (6th Cir. 1997).
7
The ordinance defines “Public place” as:
[A]ny location frequented by the public, or where the public is present or likely to
be present, or where a person may reasonably be expected to be observed by members of the
public. “Public places” includes, but is not limited to, streets, sidewalks, parks, business and
commercial establishments (whether for profit or not-for-profit and whether open to the
public at large or where entrance is limited by a cover charge or membership requirement
and/or both), bottle clubs, hotels, motels, restaurants, night clubs, country clubs, cabarets and
meeting facilities utilized by any religious, social, fraternal or similar organizations.
Premises used solely as a private residence, whether permanent or temporary in nature are
not deemed to be a public place. “Public places” does not include enclosed single sex public
restrooms, enclosed single sex functional showers, locker and/or dressing room facilities,
enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations,
doctors’ offices, portions of hospitals and similar places in which nudity or exposure is
necessarily or customarily expected outside of the home and the sphere of privacy
constitutionally protected therein; nor does it include a person appearing in a state of nudity
in a modeling class operated by a proprietary school, licensed by the state of Tennessee, a
college, junior college, or university supported entirely or partly by taxation, or a private
college or university where such private college or university maintains and operates
educational programs in which credits are transferable to a college, junior college, or
university supported entirely or partly by taxation or an accredited private college. “Public
place” does not include a private facility which has been formed as a family-oriented clothing
optional facility, properly licensed by the state.
Ord. § 1(h).
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 7
of others not before the court even if it is only their protected expression, not the plaintiff’s, that the
challenged ordinance is said to infringe. Board of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S.
569, 574 (1987); City Council of Los Angeles v. Vincent, 466 U.S. 789, 801 (1984); Broadrick v.
Oklahoma, 413 U.S. 601, 613 (1973); NAACP v. Button, 371 U.S. 415, 433 (1963); Deja Vu of
Nashville, 274 F.3d at 387; Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135 (6th Cir. 1994);
Giovani Carandola, LTD. v. Bason, 303 F.3d 507, 512 (4th Cir. 2002). Thus the fact that Sports
Club is unlikely to offer performances of Shakespeare’s plays is immaterial. See Carandola, 303
F.3d at 512; Deja Vu of Nashville, 274 F.3d at 387; see also Taxpayers for Vincent, 466 U.S. at 801-
802. And because, as we discuss in greater detail below, the purpose of the overbreadth doctrine
is “to prevent the chilling of future protected expression,” Staley v. Jones, 239 F.3d 769, 779 (6th
Cir. 2001), it is likewise immaterial that, as the district court found, Decatur County presently lacks
venues where “serious literary or theatrical productions are reasonably likely to occur.”
We have held that “[a] law is overbroad under the First Amendment if it ‘reaches a
substantial number of impermissible applications’ relative to [its] legitimate sweep.” Deja Vu of
Nashville, 274 F.3d at 387 (quoting New York v. Ferber, 458 U.S. 747, 771 (1982)); see also
Broadrick, 413 U.S. at 613. If an ordinance is held to be overbroad, the result is dramatic: “any
enforcement of [the ordinance] is totally forbidden until and unless a limiting construction or partial
invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected
expression.” Broadrick, 413 U.S. at 613. Consequently, the invalidation of an ordinance on
overbreadth grounds is “strong medicine” to be used “sparingly and only as a last resort.” Id.
We note at the outset that Plaintiffs do not contend we must apply strict scrutiny to determine
whether the ordinance is overbroad. Instead, both parties phrase their overbreadth arguments in the
language of intermediate scrutiny8 and because we find the ordinance overbroad under that standard,
we leave for another day the question whether strict scrutiny ought to apply to an ordinance that
prohibits not only nudity but also sexually suggestive acts performed while clothed.9 As it has been
applied in the overbreadth context, intermediate scrutiny requires (at least) proof that most
establishments to which the challenged ordinance or statute applies are likely to spawn harmful
secondary effects if permitted to hold performances involving nudity and/or content that could
reasonably be viewed as sexually suggestive. See Triplett Grille, 40 F.3d at 135-36; Carandola,
303 F.3d at 513-15; Schultz v. City of Cumberland, 228 F.3d 831, 847-50 (7th Cir. 2000); see also
Deja Vu of Nashville, 274 F.3d at 387. This is a corollary of the principle that an ordinance or
statute is overbroad if it “‘reaches a substantial number of impermissible applications’ relative to
[its] legitimate sweep.” Deja Vu of Nashville, 274 F.3d at 387 (quoting Ferber, 458 U.S. at 771).
Citing our decision in Triplett Grille, 40 F.3d 129 (6th Cir. 1994) and the Fourth Circuit’s
decision in Carandola, 303 F.3d 507 (4th Cir. 2002), Plaintiffs submit that the ordinance at issue
here reaches a substantial amount of expression not usually attended by the harmful secondary
effects – “criminal activity, moral degradation[,] disturbances of the peace and good order of the
community, [and threats] to the public’s health, safety, and morals, and the economic development
of Decatur County” – the ordinance was enacted to prevent. See Ord. Preamble. Section 1(a) of the
ordinance makes it unlawful for the proprietor at a public place where intoxicating liquors are sold,
served, or consumed: to “suffer or permit any female person . . . to expose . . . that area of the human
8
We address infra Defendants’ alternative argument that the ordinance need only withstand rational basis
review under California v. LaRue, 409 U.S. 109 (1972).
9
See Schultz v. City of Cumberland, 228 F.3d 831, 847-50 (7th Cir. 2000) (applying strict scrutiny to review
an as-applied challenge to an ordinance similar to the one at issue here but intermediate scrutiny to review an overbreadth
challenge to the same ordinance); Giovani Carandola, LTD. v. Bason, 303 F.3d 507, 513-15 (4th Cir. 2002) (applying
intermediate scrutiny to review an overbreadth challenge to a statute and regulations similar to the ordinance at issue
here).
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 8
breast at or below the top of the areola”; to permit any female person to employ a device intended
to simulate the appearance of a nude human breast; to “suffer or permit any person . . . to expose . . .
his or her genitals, pubic area, buttocks, anus or anal cleft or cleavage, or to show the covered male
genitals in a discernably turgid state”; or to permit any person to employ a device intended to “give
the appearance of or simulate the” parts of the body listed just above. Ord. § 1(a) (1)-(4). In
addition to the liability section 1(a) imposes on proprietors, sections 1(b) and 1(c) make the person
doing the exposing or employing the simulation device individually liable. Finally, section 1(d)
makes it unlawful
[t]o allow any entertainment on [liquor-] licensed premises by any owner, licensee,
agent of licensee, guest of licensee, employee, independent contractor of licensee,
patron, or guest, which shall contain the performance of acts or simulated acts of
sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or
any sexual acts which are prohibited by law included [sic] but not limited to table
dancing, lap dancing, couch dancing, or including the actual or simulated touching,
caressing, or fondling of the breasts, buttocks, anus, or genitals, or the actual or
simulated displaying of the pubic hair, anus, vulva, or genitals; or the nipples of a
female.
Ord. § 1(d).
We invalidated a similar “public place” ordinance in Triplett Grille on the ground that it was
overbroad. The ordinance there employed a similar definition of nudity but tread more lightly on
expression, proscribing only sexual intercourse, “deviant sexual conduct,” and the fondling of one’s
genitals or those of another. 40 F.3d at 131 n.2 (quoting the City of Akron’s (Ohio) ordinance). The
ordinance in Triplett defined “public place” more broadly than the ordinance at issue in this case,
however, because it did not apply only to public places where intoxicating liquors were sold, served,
or consumed. We explain later why Triplett is relevant despite this distinction. The other
differences between the two ordinances are minimal and we think immaterial because, like the
Triplett ordinance, the county’s ordinance reaches a wide swath of public places likely to present
performances not usually attended by harmful secondary effects. Compare id. (defining “public
place” as “any street, sidewalk, right of way and any public or private building or place where the
general public is invited”) with Ord. § 1(a) (defining “public place” in a similar manner but
exempting homes, rest rooms, medical facilities, modeling classes, etc.). We held that the ordinance
in Triplett was unconstitutionally overbroad because the city of Akron did not “demonstrate a link
between nudity in non-adult entertainment and secondary effects,” 40 F.3d at 135, and because the
ordinance did not include limiting provisions such that it could be modified to apply only in contexts
where harmful secondary effects were likely to exist. Id.
The statute in Carandola proscribed, in any establishment licensed to sell beer, wine, or
liquor, nudity, “[a]ny entertainment that includes or simulates sexual intercourse or any sexual act,”
and a variety of other sexual10or sexually suggestive acts similar or identical to those proscribed by
the ordinance at issue here. 303 F.3d at 510. The Fourth Circuit observed that the state liquor
commission had produced no evidence that liquor-licensed establishments in general, as opposed
to those particular establishments that regularly present nude or semi-nude dancing, cause harmful
secondary effects. Id. at 515-16. This omission was crucial, for as the Fourth Circuit explained:
The restrictions challenged here . . . sweep far beyond bars and nude dancing
establishments. They reach a great deal of expression in the heartland of the [First
10
Such as: actual or simulated sexual intercourse, sodomy, bestiality, oral copulation, flagellation and “the
touching, caressing or foundling of the breasts, buttocks, anus, vulva, or genitals.” Carandola, 303 F.3d at 510 (quoting
a North Carolina statute and rule adopted pursuant to it).
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 9
Amendment’s] protection. As the Commission has conceded, the plain language of
the restrictions prohibits on licensed premises any entertainment that ‘simulate[s]’
sexual behavior, even if performers are fully clothed or covered, and even if the
conduct is integral to the production – for example, a political satire, a Shakespeare
play depicting young love, or a drama depicting the horrors of rape. The
Commission has further conceded that the restrictions have the same prohibitory
effect on much non-erotic dance – such as a ballet in which one dancer touches
another’s buttock during a lift – and all nudity or simulated nudity, however brief,
in productions with clear artistic merit – such as the Pulitzer Prize winning play, Wit.
. . . The Commission has offered nothing . . . to suggest that these mainstream
entertainments, to which it has conceded the restrictions apply, produce the kind of
adverse secondary effects that the state seeks to prevent. Indeed, it is difficult to
believe that such evidence exists. One simply does not associate these performances
with disorderly behavior – whether or not alcohol is served.
Carandola, 303 F.3d at 516 (citation omitted).
Defendants do not argue that the ordinance at issue here is supported by proof that, as a rule,
harmful secondary effects usually follow when any public places where alcohol is available are
permitted to host performances involving nudity, incidental touching, or even sexually suggestive
acts, so Triplett and Carandola are not distinguishable on that basis. Nor do Defendants suggest that
the ordinance can be construed to except “mainstream” artistic or entertainment venues, see
Carandola, 303 F.3d at 516 – i.e., venues unlikely to spawn harmful secondary effects – from its
coverage. Instead Defendants urge us to adopt the district court’s conclusion that because “[t]here
are no theatrical, performance, or entertainment venues [in Decatur County] where serious literary
or theatrical [performances] are reasonably likely to occur,” the ordinance cannot be overbroad. JA
55 (Dist. Ct. Op.). Defendants also suggest that because the ordinance at issue here targets only
public places where alcohol is sold, served or consumed, our analysis should be controlled by
California v. LaRue, 409 U.S. 109 (1972), where the Supreme Court reviewed a similar California
liquor law under the highly deferential rational basis standard. We address each argument in turn.
It is true that we must adopt a limiting construction to save the ordinance from invalidation
if it is “readily susceptible” to such a construction. Virginia v. American Booksellers Ass’n, 484
U.S. 397 (1988); Erznoznik v. City of Jacksonville, 422 U.S. 205, 214-16 (1975); Broadrick, 413
U.S. at 613; Triplett, 40 F.3d at 136. But we do not think the fact that Decatur County purportedly
lacks, at the present time, venues likely to hold performances of literary or artistic value should
affect our construction of the ordinance’s plain language. We are aware of only one case in which
a court saved an ordinance of the sort at issue in this case because the jurisdiction in which the
ordinance controlled lacked venues likely to offer protected expression but unlikely to spawn
harmful secondary effects. See SOB, Inc. v. County of Benton, 317 F.3d 856, 864-65 (8th Cir. 2003).
We think this aspect of SOB stands in contrast to the great weight of the pertinent case law; and, in
any event, the case is distinguishable on multiple grounds.
A number of courts have considered overbreadth challenges to statutes or ordinances banning
nudity and/or sexually suggestive conduct in an ostensibly wide range of public places. In cases
where an ordinance or statute survived review it was because an express exception in the law’s text
or other specific language made the law “readily susceptible” to a limiting construction. Schultz v.
City of Cumberland, 228 F.3d 831, 849-50 (7th Cir. 2000) (because the ordinance’s stated scope of
application, theaters that “regularly feature[ ]” nudity, was overbroad, the court construed the text
to mean theaters that “always feature[ ]” nudity); Farkas v. Miller, 151 F.3d 900, 901-903, 905 (8th
Cir. 1998) (statute expressly excepted any “theater, concert hall, art center, museum, or similar
establishment which is primarily devoted to the arts or theatrical performances”) (citation omitted);
J&B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 366 (5th Cir. 1998) (ordinance expressly
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 10
excepted11persons “engaged in expressing a matter of serious literary, artistic, scientific or political
value”). Similarly, the Supreme Court sustained a state statute proscribing the possession of child
pornography against an overbreadth challenge because it had been authoritatively construed by the
state’s supreme court to avoid “penalizing persons for viewing or possessing innocuous photographs
of naked children.” Osborne v. Ohio, 495 U.S. 103, 113-14 (1990).
These results distinguish the cases just cited from the case at hand, for if the question is
whether a challenged ordinance can be “readily” construed in a way that avoids potential
unconstitutional applications, surely the answer must depend more on the language the drafters
employed than on the post hoc representations of the local officials charged with enforcing the
ordinance. This is why the Supreme Court has struck a delicate balance between, on the one hand,
accepting a state or local government’s plausible saving construction when an ordinance or statute
is “readily susceptible” to it, American Booksellers, 484 U.S. at 397, and, on the other hand,
declining to accept a construction where to do so would amount to rewriting state or local law – an
enterprise the federal courts are not empowered to undertake. Id.; Erznoznik, 422 U.S. at 215;
Gooding v. Wilson, 405 U.S. 518, 520 (1972); United States v. Thirty-Seven Photographs, 402 U.S.
363, 369 (1971); cf. Ward v. Rock Against Racism, 491 U.S. 781, 795-96 (1989). There is an
important distinction for First Amendment purposes between offering a narrowing construction to
which an ordinance is readily susceptible and producing evidence that the admittedly overbroad
ordinance presently has no unconstitutional effect. The first is an attempt to articulate what the
ordinance ought to mean in order that it complies with constitutional demands, while the second
concedes the deficiency but effectively asks the court to adopt a “no harm, no foul” rule; it is rather
like saying we should not care about the tree falling in the forest because no one was there to hear
it fall. Such an interpretation of the overbreadth doctrine is not consonant with its purpose, which
is “to prevent the chilling of future protected expression.” Staley, 239 F.3d at 779 (citing Ferber,
458 U.S. at 768). In sum, neither proof that an ordinance as currently applied has no
unconstitutional effect, nor assurances offered by the relevant local authorities that the ordinance
will not be put to such an effect in the future, constitute “constructions” of the ordinance, as that
term is ordinarily understood. See, e.g., Osborne, 495 U.S. at 113-14; Schultz, 228 F.3d at 849-50.
Cf. Carandola, 303 F.3d at 517-18 (observing that express exceptions are the surest indications of
legislative intent regarding the scope of an ordinance or statute); Ways v. City of Lincoln, 274 F.3d
514, 519-20 (8th Cir. 2001) (observing same and, faced with a nudity and suggestive conduct
ordinance that lacked exceptions, declining to accept the city’s representation that it was not
intended to apply to “artistic venues”).
For these reasons, we think the Eighth Circuit may have crossed the line in SOB insofar as
its decision to uphold a similar ordinance rested on proof that there were no artistic or literary
venues in the relevant county and on the local prosecutor’s promise not to enforce the statute against
the proprietors of such venues. 317 F.3d at 865. In any event, SOB is distinguishable in two
significant respects. First, and most critically, the ordinance in SOB included an exception for “any
theatrical production performed in a theater by a professional or amateur theatrical or musical
company which has serious artistic merit.” Id. at 864-65 (quoting ordinance). The Eighth Circuit
lamented that this exception was “inexplicably limited to the ordinance’s public-nudity prohibition,
so it does not appear to limit the public-genital-fondling prohibition,” id., the latter of which
appeared to prohibit even simulated caressing or incidental touching while clothed. It was against
this peculiar backdrop that the SOB court considered the County Attorney’s affidavit representing
that there were no theaters in the county and that no prosecutions would be brought against theaters
if any emerged. Id. Given the express exception to the nudity ban, we think the SOB court’s
11
Whether an exception as subjectively phrased as the ones in these cases might render an ordinance or statute
void for vagueness is a separate question, one that should be addressed only in the context of a vagueness challenge.
See, e.g., J&B Entertainment, 152 F.3d at 367-68.
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 11
decision to read into the ordinance an analogous exception to the genital-fondling ban is a
construction of an entirely different character than the one proposed by Defendants in this case, in
which we confront an ordinance that lacks exceptions of any kind. SOB is also distinguishable
because the prosecutor in that case affirmatively represented that prosecutions would not be brought
under the genital-fondling provision against theaters that fell within the exception to the nudity ban.
While we have said that such a promise is not in any sense a “construction” of the ordinance, it is
more than what Defendants have produced on this record – namely, a representation that Decatur
County’s admittedly overbroad ordinance, if permitted to stand, would have no present
unconstitutional effect.
Finally, we consider Defendants’ argument that under LaRue, 409 U.S. 109 (1972), the
ordinance is not overbroad. In LaRue, the Court considered a challenge to California regulations
substantially similar to the ordinance at issue here. Id. at 111-12. The regulations were adopted
pursuant to the state’s power to regulate the sale of liquor and they applied only to establishments
holding liquor licenses. Id. The plaintiffs, proprietors of and dancers at liquor-licensed nude-
dancing establishments, did not challenge the regulations under the overbreadth doctrine but rather
on the theory that the regulations were facially violative of the First Amendment to the extent they
would be applied to establishments like those operated by the plaintiffs. The Supreme Court
rejected this claim, noting that the record in the case was “sordid” and filled with instances of
“bacchanalian revelries” (e.g., oral copulation, masturbation, and other sexual contact) occurring
at liquor-serving nude-dancing establishments. Id. at 111, 118. In addition to states’ inherent police
powers, the Court held, the Twenty-First Amendment required an “added presumption in favor of
the validity of state regulation in this area.” Id. at 118. Applying these principles, the Court upheld
the regulations because they were not irrational. Id. at 116-18.
LaRue’s rationale is no longer good law. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S.
484 (1996), the Court “disavow[ed] [LaRue’s] reasoning insofar as it relied on the Twenty-First
Amendment.” Id. at 516. The Court held “that the Twenty-first Amendment does not qualify the
constitutional prohibition against laws abridging the freedom of speech embodied in the First
Amendment.” Id. LaRue’s holding survived Liquormart because, as the Court noted: “in . . . cases
[subsequent to LaRue], 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.” Id. at 515. The Court cited Young v.
American Mini Theatres, Inc., 427 U.S. 50 (1976) and Barnes v. Glen Theatre, Inc., 501 U.S. 560
(1991) (plurality opinion) for this proposition – two cases in which it had applied intermediate
scrutiny to laws designed to remedy harmful secondary effects. A number of courts have interpreted
Liquormart’s reaffirmation of12LaRue’s holding to mean that the LaRue regulations would have
survived intermediate scrutiny – and, moreover, that they would have had to survive such scrutiny
to comport with the First Amendment. Carandola, 303 F.3d at 513 n.2, 519-20; Dream Palace v.
County of Maricopa, 384 F.3d 990, 1018-19 (9th Cir. 2004); Sammy’s of Mobile, LTD v. City of
Mobile, 140 F.3d 993, 996 (11th Cir. 1998); Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702,
710-11 (7th Cir. 2003). But see Carandola, 303 F.3d at 521-23 (Niemeyer, J., dissenting); BZAPS,
Inc. v. City of Mankato, 268 F.3d 603, 608 (8th Cir. 2001) (following LaRue without applying
intermediate scrutiny in a case that did not involve an overbreadth claim).
We agree with this reading of LaRue and Liquormart and therefore decline to accept
Defendants’ suggestion that they need not furnish the type of evidence necessary to support the
breadth of the Decatur County ordinance – i.e., evidence tending to show that all, or even most,
12
This makes sense because LaRue did not involve an overbreadth claim, but rather a claim that the challenged
regulations were facially unconstitutional as applied to nude-dancing establishments, a subset of all liquor-licensed
businesses. See LaRue, 409 U.S. at 111-14; Carandola, 303 F.3d at 519-20; Dream Palace v. County of Maricopa, 384
F.3d 990, 1018-19 (9th Cir. 2004).
No. 03-6532 Odle, et al. v. Decatur County, Tenn., et al. Page 12
public places where alcohol is sold, served or consumed, are likely to spawn negative secondary
effects if such places are permitted to host performances involving nudity or acts that could
reasonably be viewed as sexually suggestive. See Triplett, 40 F.3d at 135-36; Carandola, 303 F.3d
at 515-17; see also Deja Vu of Nashville, 274 F.3d at 387; Ways, 274 F.3d at 518-19; Farkas, 151
F.3d at 904. Like the statute in Carandola and the ordinance in Triplett, the ordinance at issue here
“makes no attempt to regulate only those expressive activities associated with harmful secondary
effects and includes no limiting provisions. Instead, [it] sweeps within its ambit expressive conduct
not generally associated with” the kinds of harmful secondary effects it was designed to prevent.
Triplett, 40 F.3d at 129; see also Carandola, 303 F.3d at 516; Ways, 274 F.3d at 518-19. Therefore,
the ordinance “reaches a substantial number of impermissible applications.” Ferber, 458 U.S. at
771; Broadrick, 413 U.S. at 613. Accordingly, we hold that the ordinance is overbroad. Because
this means “any enforcement [of the ordinance as it is now written] is totally forbidden,” Broadrick,
413 U.S. at 613, we need not and should not consider Plaintiffs’ alternative claim that certain of the
ordinance’s provisions are unconstitutional as applied to nude-dancing establishments. See
Carandola, 303 F.3d at 520.
IV. CONCLUSION
The grant of summary judgment to Defendants on the prior restraint claim is AFFIRMED
and the grant of summary judgment to Defendants on the overbreadth claim is REVERSED. The
matter is REMANDED so that the district court may enter judgment in favor of Plaintiffs on the
overbreadth claim and issue an injunction permanently enjoining enforcement of the ordinance.