Blue Canary Corp v. City of Milwaukee ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-3543
Blue Canary Corporation,
Plaintiff-Appellant,
v.
City of Milwaukee,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99 C 891--John W. Reynolds, Judge.
Argued March 30, 2001--Decided May 29, 2001
Before Flaum, Chief Judge, and Posner and
Evans, Circuit Judges.
Posner, Circuit Judge. The plaintiff,
appealing from the grant of summary
judgment in favor of the defendant, the
City of Milwaukee, argues that the City’s
refusal to renew the plaintiff’s liquor
license violated the free speech clause
of the First Amendment. The plaintiff had
bought a tavern in Milwaukee that
entertained its patrons with polkas. It
obtained a liquor license and shortly
afterward changed the name of the tavern
from Blue Canary to Runway 94 and applied
for and received a "cabaret license,"
which permits a tavern to provide
entertainment in the form of dancing by
performers. On the application form the
plaintiff’s manager checked "floor shows"
rather than "exotic dancers/male and/or
female strippers," and at a hearing on
the application she explained that she
wanted to put on "Las Vegas style"
nightclub acts. But instead, after
receiving the cabaret license, the tavern
put on shows in which the performers
danced in only pasties and bikini
bottoms, which the licensing authority
believed constituted "exotic dancing"
rather than "Las Vegas style" dancing
even though the dancers did not strip on
stage but merely appeared, as it were,
fully unclothed down to the pasties and
bikini bottoms. The plaintiff reluctantly
applied for a supplementary license to
permit "exotic dancing." This was denied,
but the tavern continued to exhibit
"exotic dancing" in the form described,
with some weird touches, such as dancers
who sucked on their breasts while hanging
upside down. The erotic character of the
entertainment was not concealed. One
dancer allowed a customer to slip money
between her breasts. Another acknowledged
that she tried to "turn guys on" in order
to get tips. Others simulated
intercourse.
When the tavern’s liquor license came up
for renewal at the end of its one-year
term, a hearing was held at which
residents of the immediate neighborhood
opposed renewal on grounds of noise,
traffic, and litter, but also moral
disapproval of the entertainment. One
neighbor complained that a person had
come out of the tavern and urinated in
his mailbox. The license was not renewed,
and this suit ensued.
The plaintiff complains primarily about
the vagueness of the ordinance governing
grants and renewals of liquor licenses--
which so far as bears on this case
requires merely a determination of
"whether or not the applicant’s proposed
operations are basically compatible with
the normal activity of the neighborhood
in which the licensed premises is to be
located," Milwaukee Code of Ordinances
sec. 90-35-1-e--and of the category in
the application form "exotic dancers/male
and/or female strippers." The vagueness
of the category is relevant, however,
only if the City violated the plaintiff’s
rights by refusing to renew its liquor
license. If it did, the next question
would be whether the City committed a
further violation by refusing to grant an
"exotic dancers" supplement to the
plaintiff’s cabaret license. But if the
City was entitled to conclude that
thenature of the entertainment in the
plaintiff’s tavern, whatever one calls
it, was so inappropriate to the
neighborhood as to justify not renewing
the liquor license (since the plaintiff
was uninterested in switching to a form
of entertainment that the neighbors would
not have objected to), it is irrelevant
whether the entertainment was or was not
"exotic dancing."
The plaintiff repeats its complaint
about vagueness under the rubric of
"prior restraint." The term refers to
requiring governmental permission to
engage in specified expressive activity,
in contrast to punishing the activity
after it has taken place. Alexander v.
United States, 509 U.S. 544, 550 (1993);
Freedman v. Maryland, 380 U.S. 51, 57
(1965); Bantam Books, Inc. v. Sullivan,
372 U.S. 58 (1963). In the England of
Shakespeare’s day and indeed for
centuries afterwards, a play could not be
exhibited in a theater without a license
from the Lord Chamberlain. That was a
classic prior restraint. Blackstone
defined freedom of speech and the press
as freedom from prior restraints, 4
William Blackstone, Commentaries on the
Laws of England 151-53 (1769); see Pitts
burgh Press Co. v. Pittsburgh Commission
on Human Relations, 413 U.S. 376, 389-90
(1973); MacDonald v. City of Chicago, 243
F.3d 1021, 1031 (7th Cir. 2001); Thomas
v. Chicago Park District, 227 F.3d 921,
923-24 (7th Cir. 2000); Hudson v. Chicago
Teachers Union, 743 F.2d 1187, 1192 (7th
Cir. 1984); City of Paducah v. Investment
Entertainment Inc., 791 F.2d 463, 466
(6th Cir. 1986), and while the First
Amendment has not been interpreted to be
limited so, the idea that prior
restraints are particularly harmful to
expressive freedoms has lingered. Besides
the cases that we have cited already, see
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546, 558-59 (1975); Near v.
Minnesota, 283 U.S. 697, 713-16 (1931);
Stokes v. City of Madison, 930 F.2d 1163,
1168 (7th Cir. 1991); Auburn Police Union
v. Carpenter, 8 F.3d 886, 903 (1st Cir.
1993).
But the rationale for condemning prior
restraints limits the scope of the
concept. By "prior restraint" Blackstone
and modern courts alike mean censorship--
an effort by administrative methods to
prevent the dissemination of ideas or
opinions thought dangerous or offensive.
The censor’s concern is with the content
of speech, and the ordinary judicial
safeguards are lacking. "Prior
restraints" that do not have this
character are reviewed under the much
more permissive standard applicable to
restrictions merely on the time, place,
or manner of expression. See, e.g.,
MacDonald v. City of Chicago, supra;
Thomas v. Chicago Park District, supra.
Permit requirements are routinely imposed
on the use of public parks and other
public spaces for expressive uses,
including entertainment and political
demonstrations; and the sale of liquor is
unexceptionably a licensed activity even
when the licensed restaurant or tavern
provides entertainment for its customers,
and even though the Twenty-First
Amendment is no longer deemed a
limitation on First Amendment rights. 44
Liquormart, Inc. v. Rhode Island, 517
U.S. 484, 515-16 (1996). The prior-
restraint issue that the plaintiff
attempts to raise is thus a red herring.
There was nothing amiss in the City’s
requiring the plaintiff to seek a renewal
of its liquor license annually.
Nor was there anything amiss in the
City’s taking into account, in deciding
whether to renew the license, the
character of the entertainment that the
plaintiff served with its drinks. It is
true that the "exotic dancing" was not,
or at least is not contended to have
been, obscene (despite the breast
sucking--which was not nursing), and
therefore illegal. Nor did it violate any
state or city law--if there is one in
Wisconsin or Milwaukee--against public
nudity, compare City of Erie v. Pap’s
A.M., 529 U.S. 277 (2000); Barnes v. Glen
Theatre, Inc., 501 U.S. 560 (1991),
because the dancers were scantily clad,
rather than nude. But this is not a case
about banning exotic (or erotic) dance
performances on the ground of their being
obscene or violating the nudity laws. The
City does not ban the kind of
entertainment that Runway 94 offered. We
are told without contradiction that there
are 22 such establishments in Milwaukee.
All the City is trying to do is to zone
them out of areas in which neighbors
object to the presence of a strip joint.
The plaintiff is emphatic (this is the
core of its objection to the "exotic
dancers" category) that Runway 94 was not
a strip joint, because the dancers
stripped down to their pasties and bikini
bottoms before appearing on stage, but
the difference between stripping and
having already stripped strikes us as
minute, and so for want of a better term
we’ll call Runway 94 a strip joint.
Countless cases allow municipalities to
zone strip joints, adult book stores, and
like erotic sites out of residential and
the classier commercial areas of the city
or town. City of Renton v. Playtime
Theaters, Inc., 475 U.S. 41, 49-52
(1986); Young v. American Mini Theatres,
Inc., 427 U.S. 50 (1976) (plurality
opinion); Schultz v. City of Cumberland,
228 F.3d 831, 845-46 (7th Cir. 2000);
North Avenue Novelties, Inc. v. City of
Chicago, 88 F.3d 441 (7th Cir. 1996);
Boss Capital, Inc. v. City of
Casselberry, 187 F.3d 1251, 1253 (11th
Cir. 1999); Richland Bookmart, Inc. v.
Nichols, 137 F.3d 435 (6th Cir. 1998);
Walker v. City of Kansas City, 911 F.2d
80, 90 n. 13 (8th Cir. 1990).
Establishments that purvey erotica, live
or pictorial, tend to be tawdry, to be
offensive to many people, and to attract
a dubious, sometimes a disorderly,
clientele. Liquor and sex are an
explosive combination, so strip joints
that sell liquor are particularly
unwelcome in respectable neighborhoods.
The impairment of First Amendment values
is slight to the point of being risible,
since the expressive activity involved in
the kind of striptease entertainment
provided in a bar has at best a modest
social value and is anyway not suppressed
but merely shoved off to another part of
town, where it remains easily accessible
to anyone who wants to patronize that
kind of establishment.
Because the standard in the ordinance is
compatibility with the "normal" activity
of the neighborhood and the City relies
heavily on testimony by neighbors to
determine what that activity is, the
plaintiff asks us to consider the
possibility that a straitlaced community
might exclude all erotic cultural
expression on the ground that any public
recognition of sex was abnormal activity
in that community--and so Salome’s "Dance
of the Seven Veils" (in Wilde’s play or
Strauss’s opera), the Afternoon of a
Faun, and countless Balanchine ballets
could not be performed. But we are
dealing in this case with the ordinance
not of a small town but of a major city,
which is neither homogeneous nor entirely
residential, and so the ordinance has not
resulted in the exclusion of the erotic
even from bars, but merely in the
segregation of bars that present erotic
entertainment from other land uses in the
city. The ordinance is limited, moreover,
to bars (and to restaurants that serve
liquor). It is not a regulation of
theaters or concert halls, but only of
places where liquor is served. And the
City has not delegated the zoning
decision to the neighbors, but merely re
lies upon them to inform the City
concerning the normal activity of their
neighborhoods. The plaintiff was entitled
to a hearing on its application to renew
its license, Milwaukee Code of Ordinances
sec. 90-11, and received one--at which
much evidence was presented of the
profoundincompatibility of a strip joint
with the normal activity of the immediate
neighborhood, a residential neighborhood
whose normal activity is raising kids in
a tranquil environment rather than
fending off the drunken patrons of a
noisy strip joint. So far as appears, the
plaintiff could have reopened Runway 94 a
few blocks away. The First Amendment
would not have been damaged by such a
move.
Affirmed.