Ben's Bar Inc v. Village of Somerset ( 2003 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 01-4351
BEN’S BAR, INC.,
Plaintiff-Appellant,
v.
VILLAGE OF SOMERSET,
Defendant-Appellee.
____________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 01 C 821—Barbara B. Crabb, Chief Judge.
____________
ARGUED MAY 30, 2002—DECIDED JANUARY 17, 2003
____________
Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.
and MANION, Circuit Judges.
MANION, Circuit Judge. Ben’s Bar, Inc. operates a tavern
in the Village of Somerset, Wisconsin, that formerly served
as a venue for nude and semi-nude dancing. After the
Village enacted an ordinance that, in part, prohibited the
sale, use, or consumption of alcohol on the premises of
“Sexually Oriented Businesses,” Ben’s Bar and two of its
dancers filed suit under 42 U.S.C. § 1983, seeking declara-
tory and injunctive relief against the enforcement of the
ordinance. The plaintiffs’ complaint alleged, among other
things, that the ordinance’s alcohol prohibition violated
2 No. 01-4351
their right to freedom of expression under the First and
Fourteenth Amendments to the United States Constitu-
tion. Shortly thereafter, plaintiffs filed a motion for a pre-
liminary injunction, which the district court denied. The
Village then filed a motion for summary judgment, which
the district court granted. Ben’s Bar appeals this decision.
Because we conclude that the record sufficiently supports
the Village’s claim that the liquor prohibition is a reason-
able attempt to reduce or eliminate the undesirable “sec-
ondary effects” associated with barroom adult entertain-
ment, rather than an attempt to regulate the expressive
content of nude dancing, we affirm the district court’s
judgment.
I.
On October 24, 2000, the Village of Somerset, a municipal
corporation located in St. Croix County, Wisconsin (“Vil-
lage”), enacted Ordinance A-472, entitled “Sexually Ori-
ented Business Ordinance” (“Ordinance”), for the purpose
of regulating “Sexually Oriented Businesses and related
activities to promote the health, safety, and general welfare
of the citizens of the Village of Somerset, and to establish
reasonable and uniform regulations to prevent the dele-
terious location and concentration of Sexually Oriented
Businesses within the Village of Somerset.” The Ordinance
regulates hours of operation, location, distance between
patrons and performers, and other aspects concerning the
operations of Sexually Oriented Businesses.
In the legislative findings section of the Ordinance, the
Village noted that:
Based on evidence concerning the adverse secondary
effects of Sexually Oriented Businesses on the com-
munity in reports made available to the Village Board,
No. 01-4351 3
and on the holdings and findings in [numerous Su-
preme Court, federal appellate, and state appellate
judicial decisions], as well as studies and summaries
of studies conducted in other cities . . . and findings
reported in the Regulation of Adult Entertainment
Establishments in St. Croix County, Wisconsin; and
the Report of the Attorney General’s Working Group
of Sexually Oriented Businesses . . . the Village Board
finds that:
(a) Crime statistics show that all types of crimes,
especially sex-related crimes, occur with more
frequency in neighborhoods where sexually
oriented businesses are located.
(b) Studies of the relationship between sexually
oriented businesses and neighborhood prop-
erty values have found a negative impact on
both residential and commercial property
values.
(c) Sexually oriented businesses may contribute
to an increased public health risk through the
spread of sexually transmitted diseases.
(d) There is an increase in the potential for infil-
tration by organized crime for the purpose
of unlawful conduct.
(e) The consumption of alcoholic beverages on the
premises of a Sexually Oriented Business exacer-
bates the deleterious secondary effects of such busi-
nesses on the community.
(Emphasis added.)
On February 2, 2001, two months before the Ordinance’s
effective date of April 1, 2001, Ben’s Bar, Inc. (“Ben’s Bar”),
4 No. 01-4351
a tavern in the Village featuring nude and semi-nude
1
barroom dance, and two of its dancers, Shannen Richards
and Jamie Sleight, filed a four-count complaint against
the Village, pursuant to 42 U.S.C. § 1983 and Wis. Stat.
§ 806.04 (the State’s “Uniform Declaratory Judgments Act”),
in the United States District Court for the Western District
of Wisconsin. The plaintiffs’ complaint alleged that por-
tions of the Ordinance were unconstitutional and pre-
empted by Wisconsin law, sought a declaratory judgment
resolving those issues, and requested permanent injunc-
tive relief. Specifically, the plaintiffs argued that the Ordi-
nance: (1) violated their right of free expression under
the First and Fourteenth Amendments to the United
States Constitution and Article I, § 3 of the Wisconsin
2
Constitution; (2) violated their right to equal protection
under the Fourteenth Amendment to the United States
Constitution and Article 1, § 1 of the Wisconsin Constitu-
3
tion; (3) was an illegal “policy or custom” of the Village
within the meaning of Monell v. New York City Dep’t of
Social Services, 436 U.S. 658 (1978), and Owen v. City of
Independence, Missouri, 445 U.S. 622 (1980); and (4) was
1
Ben’s Bar holds a liquor license issued by the Village.
2
Article 1, § 3 of the Wisconsin Constitution provides, inter alia,
that “[e]very person may freely speak, write and publish his
sentiments on all subjects, being responsible for the abuse of
that right, and no laws shall be passed to restrain or abridge
the liberty of speech or of the press.” Wis. Const., art. I, § 3.
3
Article 1, § 1 of the Wisconsin Constitution provides that
“[a]ll people are born equally free and independent, and have
certain inherent rights; among these are life, liberty and the
pursuit of happiness; to secure these rights, governments are
instituted, deriving their just powers from the consent of the
governed.” Wis. Const., art. I, § 1.
No. 01-4351 5
an ultra vires legislative act in violation of Wis. Stat.
4
§ 66.0107(3).
On March 19, 2001, the plaintiffs moved for a preliminary
injunction against the enforcement of Sections 5(a) and
(b) of the Ordinance. Section 5(a) provides that “[i]t shall
be a violation of this ordinance for any Person to know-
ingly and intentionally appear in a state of Nudity in a
5
Sexually Oriented Business.” Section 5(b) of the Ordi-
nance provides that “[t]he sale, use, or consumption of
alcoholic beverages on the Premises of a Sexually Oriented
Business is prohibited.” Plaintiffs argued that under
§ 66.0107(3) the Village was prohibited from enacting
these regulations of adult entertainment because such
conduct is already covered by the state’s obscenity stat-
ute—i.e., Wis. Stat. § 944.21. They also contended that,
notwithstanding § 66.0107, Sections 5(a) and (b) violated
their right to free expression under the First and Four-
teenth Amendments.
On April 17, 2001, the district court denied plaintiffs’
motion for preliminary injunctive relief, holding that they
did not have a reasonable chance of succeeding on the
merits of their complaint. The district court, utilizing the
test established by this circuit in Schultz v. City of Cumber-
4
Wis. Stat. § 66.0107(3) provides that “[t]he board or council of
a city, village or town may not, by ordinance, prohibit con-
duct which is the same as or similar to conduct prohibited by
§ 944.21 [i.e., the state’s obscenity statute].”
5
Under Section 3(o) of the Ordinance, “Nudity” or “state of
nudity” is defined as “the appearance of the human bare anus,
anal cleft or cleavage, pubic area, male genitals, female gen-
itals, or the nipple or areola of the female breast, with less than
a fully opaque covering; or showing of the covered male gen-
itals in a discernibly turgid state.”
6 No. 01-4351
land, 228 F.3d 831 (7th Cir. 2000), held that Section 5(a)’s
complete prohibition of full nudity in Sexually Oriented
Businesses was constitutional under the First Amendment
because “ ‘limiting erotic dancing to semi-nudity [i.e.,
pasties and G-strings] represents a de minimis restriction
that does not unconstitutionally abridge expression.’ ”
(quoting Schultz, 228 F.3d at 847). The district court also
concluded that Section 5(b) passed constitutional muster
under Schultz because it: (1) was justified without refer-
ence to the content of the regulated speech; (2) was nar-
rowly tailored to serve a significant government interest
in curbing adverse secondary effects; and (3) left open
ample alternative channels for communication. Finally,
the district court ruled that the Ordinance was not subject
to preemption under Wis. Stat. § 66.0107(3) because the
plaintiffs had conceded that: (1) the Ordinance only regu-
lates non-obscene conduct; and (2) they were seeking
only to provide non-obscene barroom dancing.
Following unsuccessful attempts at settlement, on Au-
gust 20, 2001, the Village moved for summary judgment
of plaintiffs’ complaint. On November 23, 2001, the dis-
trict court granted the Village’s motion, concluding that
the Ordinance was constitutional for the reasons ex-
pressed in its April 17, 2001 order. The court also ad-
dressed plaintiffs’ equal protection claim, noting that
they had waived the argument by failing to develop it in
their briefs. A judgment in conformity with that order
was entered on November 26, 2001. Ben’s Bar appeals the
6
district court’s decision granting summary judgment,
arguing that the court erred in concluding that Section
5(b) does not constitute an unconstitutional restriction
6
Plaintiffs Shannen Richards and Jamie Sleight did not appeal
the district court’s judgment.
No. 01-4351 7
on nude dancing under the First Amendment. See DiMa
Corp. v. Town of Hallie, 185 F.3d 823, 827 n.2 (7th Cir.
1999) (holding that corporations may assert First Amend-
ment challenges). We review the district court’s grant
of summary judgment de novo, construing all facts in favor
of Ben’s Bar, the non-moving party. Commercial Under-
writers Ins. Co. v. Aires Envtl. Services, Ltd., 259 F.3d 792,
795 (7th Cir. 2001).
II.
The First Amendment provides, in part, that “Congress
shall make no law . . . abridging the freedom of speech . . . .”
U.S. Const. amend. I. The First Amendment’s Free Speech
Clause has been held by the Supreme Court to apply to
the states through the Fourteenth Amendment’s due proc-
ess clause. Gitlow v. New York, 268 U.S. 652, 666 (1925);
DiMa Corp., 185 F.3d at 826 (acknowledging the applicabil-
ity of the Supreme Court’s “incorporation doctrine” in
the First Amendment context). The Supreme Court has
further held that “nude dancing . . . is expressive conduct
within the outer perimeters of the First Amendment, though
we view it as only marginally so.” Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 566 (1991) (plurality opinion) (emphasis
added). See also Blue Canary Corp. v. City of Milwaukee,
251 F.3d 1121, 1124 (7th Cir. 2001) (noting that “[t]he im-
pairment 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 . . . .”). Thus, while few
would argue “that erotic dancing . . . represents high artis-
tic expression,” Schultz v. City of Cumberland, 228 F.3d
831, 839 (7th Cir. 2000), the Supreme Court has, neverthe-
less, afforded such expression a diminished form of pro-
tection under the First Amendment. City of Erie v. Pap’s
8 No. 01-4351
A.M., 529 U.S. 277, 294 (2000) (plurality opinion) (holding
that “ ‘even though we recognize that the First Amend-
ment will not tolerate the total suppression of erotic ma-
terials that have some arguably artistic value, it is manifest
that society’s interest in protecting this type of expression is
of a wholly different, and lesser, magnitude than the interest
in untrammeled political debate . . . .’ ”) (citation omitted)
(emphasis added).
This case requires us to determine whether a munici-
pality may restrict the sale or consumption of alcohol on
the premises of businesses that serve as venues for adult
entertainment without violating the First Amendment.
On appeal, Ben’s Bar’s primary argument is that Section
5(b) is unconstitutional because the regulation has the
“effect” of requiring its dancers to wear more attire than
7
simply pasties and G-strings. This argument may be
summed up as follows: (1) Section 5(b) prohibits the
sale, use, or consumption of alcohol on the premises of
8
Sexually Oriented Businesses; (2) Ben’s Bar is an “Adult
cabaret,” a sub-category of a Sexually Oriented Business
9
under the Ordinance, if it features nude or semi-nude
7
The Supreme Court has, on two separate occasions, held that
requiring nude dancers to wear pasties and G-strings does not
violate the First Amendment. Pap’s A.M., 529 U.S. at 301 (plural-
ity opinion), id. at 307-10 (Scalia, J., concurring); Barnes, 501
U.S. at 571-72 (plurality opinion), id. at 582 (Souter, J., concur-
ring).
8
Section 3(w) of the Ordinance defines “Sexually Oriented
Business” as “an adult arcade, adult bookstore or adult video
store, adult cabaret, adult motel, adult motion picture theater,
adult theater, escort agency or sexual encounter center.”
9
Section 3(c) of the Ordinance is the definition for “Adult
cabaret,” which “means a nightclub, dance hall, bar, restaurant,
(continued...)
No. 01-4351 9
dancers; (3) Section 3(o) of the Ordinance defines “semi-
nude or semi-nudity” as “the exposure of a bare male or
female buttocks or the female breast below a horizontal
line across the top of the areola at its highest point with
less than a complete and opaque covering”; and (4) Ben’s
Bar’s dancers must wear more attire than that required
by the Ordinance’s definition of “semi-nude or semi-
nudity” in order for the tavern to be able to sell alcohol
during their performances and comply with Section 5(b)—
i.e., more than pasties and G-strings. Ben’s Bar contends
that Section 5(b) significantly impairs the conveyance of
10
an erotic message by the tavern’s dancers and is not
narrowly tailored to meet the Village’s stated goal of
reducing the adverse secondary effects associated with
11
adult entertainment.
9
(...continued)
or similar commercial establishment that regularly features:
(1) persons who appear in a state of Nudity or Semi-nudity; or
(2) live performances that are characterized by ‘specified sex-
ual activities’; or (3) films, motion pictures, video cassettes,
slides, or other photographic reproductions that are character-
ized by the depiction or description of ‘specified sexual activ-
ities’ or Nudity or ‘specified anatomical areas.’ ” (Emphasis
added.)
10
According to Ben’s Bar, Section 5(b) goes far beyond the
pasties and G-strings regulation upheld by the Supreme Court
in Barnes and Pap’s A.M., prohibiting “any display of the but-
tocks or of breast below the top of the areola”—i.e., “conserva-
tive two piece swimsuits, moderately low-cut blouses, short
shorts, sheer fabrics and many other types of clothing that
are regularly worn in the community and are in mainstream
fashion.”
11
It is not entirely clear whether Ben’s Bar is arguing that Sec-
tion 5(b) is facially unconstitutional or merely unconstitutional
(continued...)
10 No. 01-4351
The central fallacy in Ben’s Bar’s argument, however, is
that Section 5(b) restricts the sale and consumption of
alcoholic beverages in establishments that serve as venues
for adult entertainment, not the attire of nude dancers.
In the absence of alcohol, Ben’s Bar’s dancers are free to
express themselves all the way down to their pasties and
G-strings. The question then is not whether the Village
can require nude dancers to wear more attire than pasties
and G-strings, but whether it can prohibit Sexually Ori-
ented Businesses like Ben’s Bar from selling alcoholic
beverages in order to prevent the deleterious secondary
effects arising from the explosive combination of nude
dancing and alcohol consumption.
While the question presented is rather straightforward,
the issue is significantly complicated by a long series
of Supreme Court decisions involving the application of
the First Amendment in the adult entertainment context.
Because these decisions establish the analytical framework
under which we must operate, our analysis necessarily
begins with a comprehensive summary of the Supreme
Court’s jurisprudence in this area.
11
(...continued)
as applied. To the extent Ben’s Bar seeks to bring a facial chal-
lenge, it faces an uphill battle. Ben’s Bar does not argue that
the regulation is vague or overbroad, and therefore may only
prevail if it can demonstrate “that no set of circumstances ex-
ists under which the [regulation] would be valid.” United States
v. Salerno, 481 U.S. 739, 745 (1987). See also Horton v. City of
St. Augustine, Florida, 272 F.3d 1318, 1331 (11th Cir. 2001) (not-
ing exception to the Salerno rule; that, in the limited context of
the First Amendment, a plaintiff may also bring a facial chal-
lenge for overbreadth and/or vagueness).
No. 01-4351 11
A. California v. LaRue
Initially, we note that the Supreme Court addressed the
precise issue before us in California v. LaRue, 409 U.S. 109(1972), when it considered the constitutionality of regula-
tions promulgated by California’s Department of Alcoholic
Beverages (“Department”) that prohibited bars and night-
clubs from featuring varying degrees of adult entertain-
12
ment. The Department enacted the regulations, after
holding public hearings, because it concluded that the con-
sumption of alcohol in adult entertainment establishments
resulted in a number of adverse secondary effects—e.g., acts
of public indecency and sex-related crimes. As in this
case, adult entertainment businesses filed suit alleging
that the regulations violated the First Amendment. Id.
at 110.
12
The regulations at issue in LaRue prohibited:
(a) The performance of acts, or simulated acts, of sexual
intercourse, masturbation, sodomy, bestiality, oral copula-
tion, flagellation or any sexual acts which are prohibited
by law;
(b) The actual or simulated touching, caressing or fon-
dling on the breast, buttocks, anus or genitals;
(c) The actual or simulated displaying of the pubic hair,
anus, vulva or genitals;
(d) The permitting by a licensee of any person to remain
in or upon the licensed premises who exposes to public view
any portion of his or her genitals or anus; and, by a com-
panion section;
(e) The displaying of films or pictures depicting acts a live
performance of which was prohibited by the regulations
quoted above.
409 U.S. at 411-12.
12 No. 01-4351
The Supreme Court began its analysis in LaRue by stress-
ing that “[t]he state regulations here challenged come to
us, not in the context of a dramatic performance in a thea-
ter, but rather in a context of licensing bars and nightclubs
to sell liquor by the drink.” 409 U.S. at 114. For this rea-
son, the vast majority of the Court’s opinion addressed the
States’ power to regulate “intoxicating liquors” under the
13
Twenty-first Amendment. See generally id. at 115-19.
Specifically, the LaRue Court concluded that:
While the States, vested as they are with general police
power, require no specific grant of authority in the
Federal Constitution to legislate with respect to mat-
ters traditionally within the scope of the police power,
the broad sweep of the Twenty-first Amendment has
been recognized as conferring something more than
the normal state authority over public health, welfare,
and morals.
409 U.S. at 114.
In doing so, the LaRue Court rejected the plaintiffs’
contention that the state’s regulatory authority over “intox-
icating beverages” was limited, as applied to adult enter-
tainment establishments, to “either dealing with the prob-
lem it confronted within the limits of our decisions as to
obscenity [i.e., Roth v. United States, 354 U.S. 476 (1957) and
its progeny] or in accordance with the limits prescribed
for dealing with some forms of communicative conduct
in [United States v. O’Brien, 391 U.S. 367 (1968)],” 409 U.S.
13The second section of the Twenty-first Amendment pro-
vides that “[t]he transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof,
is hereby prohibited.” U.S. Const. amend. XXI, § 2.
No. 01-4351 13
at 116, reasoning “ ‘[w]e cannot accept the view that an
apparently limitless variety of conduct can be labeled
‘speech’ whenever the person engaging in the conduct
intends thereby to express an idea.’ ” Id. at 117-18 (citation
omitted). The Court found that “the substance of the reg-
ulations struck down prohibits licensed bars or night-
clubs from displaying, either in the form of movies or
live entertainment, ‘performances’ that partake more of
gross sexuality than of communication.” Id. at 118. The
Court also concluded that although “at least some of the
performances to which these regulations address them-
selves are within the limits of the constitutional protec-
tion of freedom of expression, the critical fact is that Cali-
fornia has not forbidden these performances across the
board . . . [but] has merely proscribed such performances
in establishments that it licenses to sell liquor by the
drink.” Id. The LaRue Court ended its analysis by noting
that “[t]he Department’s conclusion, embodied in these
regulations, that certain sexual performances and the
dispensation of liquor by the drink ought not to occur at
premises that have licenses was not an irrational one,” and
that “[g]iven the added presumption in favor of the validity
of the state regulation in this area that the Twenty-first
Amendment requires, we cannot hold that the regula-
tions on their face violate the Federal Constitution.” Id.
14
at 118-19.
14
See also City of Newport v. Iacobucci, 479 U.S. 92, 95 (1986)
(upholding the constitutionality of a city ordinance prohibiting
nude or nearly nude dancing in local establishments licensed
to sell liquor for consumption on the premises); New York
State Liquor Auth. v. Bellanca, 452 U.S. 714, 717 (1981) (holding
that “[t]he State’s power to ban the sale of alcoholic beverages
(continued...)
14 No. 01-4351
B. 44 Liquormart, Inc. v. Rhode Island
After the Supreme Court’s decision in 44 Liquormart,
Inc. v. Rhode Island, 517 U.S. 484 (1996), however, the
precedential value of the reasoning anchoring the Court’s
holding in LaRue was severely diminished. In 44 Liquor-
mart, the Court held that Rhode Island’s statutory pro-
hibition against advertisements providing the public with
accurate information about retail prices of alcoholic bev-
erages was “an abridgement of speech protected by the
First Amendment and that is not shielded from constitu-
tional scrutiny by the Twenty-first Amendment.” Id. at
489. In reaching this conclusion, the Court noted:
Rhode Island argues, and the Court of Appeals agreed,
that in this case the Twenty-first Amendment tilts
the First Amendment analysis in the State’s favor [of
the advertising ban] . . . . [T]he Court of Appeals relied
on our decision in California v. LaRue . . . [where] five
Members of the Court relied on the Twenty-first
Amendment to buttress the conclusion that the First
Amendment did not invalidate California’s prohibi-
tion of certain grossly sexual exhibitions in premises
licensed to serve alcoholic beverages. Specifically, the
opinion stated that the Twenty-first Amendment re-
quired that the prohibition be given an added pre-
14
(...continued)
entirely includes the lesser power to ban the sale of liquor
on premises where topless dancing occurs”); Doran v. Salem Inn,
Inc., 422 U.S. 922, 932-33 (1975) (noting that under LaRue
states may ban nude dancing as part of their liquor licensing
programs); City of Kenosha v. Bruno, 412 U.S. 507, 515 (1973)
(noting that “regulations prohibiting the sale of liquor by the
drink on premises where there were nude but not necessarily
obscene performances [are] facially constitutional”).
No. 01-4351 15
sumption in favor of its validity. We are now persuaded
that the Court’s analysis in LaRue would have led to precise-
ly the same result if it had placed no reliance on the Twenty-
first Amendment. Entirely apart from the Twenty-first
Amendment, the State has ample power to prohibit the sale
of alcoholic beverages in inappropriate locations. More-
over, in subsequent cases, 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 bever-
ages are involved. . . . See, e.g., Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976); Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991). As we recently noted: “LaRue
did not involve commercial speech about alcohol, but
instead concerned the regulation of nude dancing
in places where alcohol was served.” Rubin v. Coors
Brewing Co., 514 U.S., at 483, n. 2. Without question-
ing the holding of LaRue, we now disavow its reason-
ing insofar as it relied on the Twenty-first Amendment.
Id. at 515-16 (emphasis added).
The foregoing makes clear that LaRue’s holding re-
mains valid after 44 Liquormart, but for a different reason.
The 44 Liquormart Court concluded 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,” 517 U.S. at 515, because “[e]ntirely apart
from the Twenty-first Amendment, the State has ample
power to prohibit the sale of alcoholic beverages in inap-
propriate locations.” Id. In making this assertion, the 44
Liquormart Court relied on the LaRue Court’s conclusion
that: “the States, vested as they are with general police
power, require no specific grant of authority in the Fed-
eral Constitution to legislate with respect to matters tradi-
tionally within the scope of the police power . . . [i.e.,] the
16 No. 01-4351
normal state authority over public health, welfare, and
morals.” 409 U.S. at 114. But in recent years, the Supreme
Court has held, on a number of occasions, that “non-
obscene” adult entertainment is entitled to a minimal
degree of protection under the First Amendment, even
in relation to laws enacted pursuant to a State’s general
police powers. City of Los Angeles v. Alameda Books, Inc., 122
S.Ct. 1728, 1739 (2002) (Kennedy, J., concurring) (noting
that “if a city can decrease the crime and blight associated
with [adult entertainment] speech by the traditional exer-
cise of its zoning power, and at the same time leave the
quantity and accessibility of speech substantially undim-
inished, there is no First Amendment objection”); Pap’s
A.M., 529 U.S. at 296 (plurality opinion) (holding that
city’s public indecency ordinance, enacted to “protect pub-
lic health and safety,” must be analyzed as a content-
neutral regulation of expressive conduct); id. at 310(Souter, J., concurring in part and dissenting in part).
Given the foregoing, it is difficult to ascertain exactly what
“analysis” the 44 Liquormart Court was referring to as
having persuaded it that the LaRue Court would have
reached the same result even without the “added pre-
sumption” of the Twenty-first Amendment. We find
noteworthy, however, the 44 Liquormart Court’s citation
of the post-LaRue decisions of Young v. American Mini
Theatres, Inc., 427 U.S. 50 (1976), and Barnes v. Glen Theatre,
Inc., 501 U.S. 560, 582 (1991), in support of its assertion
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, 517 U.S. at
515. In American Mini Theatres and Barnes, the Supreme
Court held that the adult entertainment regulations at is-
sue were subject to intermediate scrutiny for purposes of
determining their constitutionality under the First Amend-
No. 01-4351 17
ment. American Mini Theatres, 427 U.S. at 79 (Powell, J.,
concurring) (“it is appropriate to analyze the permissibil-
ity of Detroit’s action [zoning ordinance separating adult
theaters from residential neighborhoods and churches]
under the four-part test of United States v. O’Brien . . . .”);
Barnes, 501 U.S. at 582 (Souter, J., concurring) (“I also agree
with the plurality that the appropriate analysis to deter-
mine the actual protection required by the First Amend-
ment is the four-part enquiry described in United States
v. O’Brien . . . .”).
Like the Fourth and Eleventh Circuits, we conclude that
after 44 Liquormart state regulations prohibiting the sale
or consumption of alcohol on the premises of adult enter-
tainment establishments must be analyzed in light of Amer-
ican Mini Theatres and Barnes, as modified by their respec-
tive progeny. See Giovani Carandola Ltd. v. Bason, 303 F.3d
507, 513 n.2 & 519 (4th Cir. 2002) (noting the 44 Liquormart
Court’s reliance on American Mini Theatres and Barnes and
holding that “the result reached in LaRue remains sound
not because a state enjoys any special authority when it
burdens speech by restricting the sale of alcohol, but
rather because the regulation in LaRue complied with the
First Amendment”); Sammy’s of Mobile, Ltd. v. City of
Mobile, 140 F.3d 993, 996 (11th Cir. 1998) (holding that “the
Supreme Court [in 44 Liquormart] . . . reaffirmed the
precedential value of LaRue and the Barnes-O’Brien test . . . .
[and] reaffirmed that the Barnes-O’Brien intermediate level
of review applies to [adult entertainment liquor regula-
tions]”). But see BZAPS, Inc. v. City of Mankato, 268 F.3d 603,
608 (8th Cir. 2001) (upholding the constitutionality of an
adult entertainment liquor regulation solely on the basis
of LaRue’s holding).
We reach this conclusion notwithstanding the fact that
in LaRue the Supreme Court upheld the constitutionality
of the adult entertainment liquor regulations using the ra-
18 No. 01-4351
tional basis test, see 409 U.S. at 115-16, and explicitly refused
to subject the regulations to O’Brien’s intermediate scru-
tiny test. Id. at 116 (“We do not believe that the state regu-
latory authority in this case was limited to . . . dealing
with the problem it confronted . . . in accordance with the
limits prescribed for dealing with some forms of com-
municative conduct in [O’Brien]”). We do so because the 44
Liquormart Court’s reference to American Mini Theatres
and Barnes makes clear that the Court is of the opinion
that adult entertainment liquor regulations, like the ones
at issue in LaRue, will pass constitutional muster even
under the heightened intermediate scrutiny tests outlined
in those cases.
In making this determination, we are by no means
suggesting that the Supreme Court’s decisions in American
Mini Theatres and Barnes are of greater precedential value
than LaRue. On the contrary, as noted infra, our decision
in this case is largely dictated by LaRue’s holding. At the
time LaRue was decided, however, the Supreme Court
had not yet established a framework for analyzing the
constitutionality of adult entertainment regulations. This
changed with the Court’s subsequent decisions in Amer-
ican Mini Theatres and Barnes, cases that serve as a point
of origin for two distinct, yet overlapping, lines of juris-
prudence that address the degree of First Amendment
protection afforded to adult entertainment. Given the sig-
nificant development of the law in this area since LaRue,
as well as the Court’s refashioning of LaRue’s reasoning
in 44 Liquormart, we conclude that it is necessary to apply
LaRue’s holding in the context of this precedent.
C. The 44 Liquormart “road map”
The 44 Liquormart decision established a road map of
sorts for analyzing the constitutionality of adult entertain-
No. 01-4351 19
ment liquor regulations, i.e., the Supreme Court’s decisions
in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976),
and Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582 (1991),
15
providing two separate but similar routes. First, the
American Mini Theatres decision, as modified by the Court’s
subsequent decisions in City of Renton v. Playtime Theatres,
Inc., 475 U.S. 41 (1986), and City of Los Angeles v. Alameda
Books, Inc., 122 S.Ct. 1728 (2002), delineates the standards
for evaluating the constitutionality of adult entertainment
zoning ordinances. Second, the Barnes decision, as modified
by the Court’s recent decision in City of Erie v. Pap’s A.M.,
529 U.S. 277 (2000), provides guidelines for analyzing
the constitutionality of public indecency statutes.
The analytical frameworks utilized in both lines of
jurisprudence can be traced back to the four-part test
enunciated by the Supreme Court in United States v.
O’Brien, 391 U.S. 367 (1968), where the Court held that a
statute prohibiting the destruction or mutilation of draft
cards was a content-neutral regulation of expressive con-
duct. Id. at 376. See also American Mini Theatres, 427 U.S. at
79 (Powell, J., concurring) (applying O’Brien test); Barnes,
501 U.S. at 582 (Souter, J., concurring) (same). Under the
O’Brien test, a governmental regulation is sufficiently
justified, despite its incidental impact upon expressive
conduct protected by the First Amendment, if: (1) it is
within the constitutional power of the government; (2) it
furthers an important or substantial governmental inter-
est; (3) the governmental interest is unrelated to the sup-
pression of free speech; and (4) the incidental restriction on
15
See J & B Social Club No. 1, Inc. v. City of Mobile, 966 F. Supp.
1131, 1136 (S.D. Ala. 1996) (Hand, J.).
20 No. 01-4351
alleged First Amendment freedoms is no greater than is
essential to the furtherance of that interest. Id. at 377.
While the O’Brien test is still utilized by the Supreme
Court in analyzing the constitutionality of public inde-
cency statutes, see Pap’s A.M., 529 U.S. at 289 (plurality
opinion); id. at 310 (Souter, J., concurring in part and
dissenting in part), the Court currently evaluates adult
entertainment zoning ordinances as time, place, and man-
ner regulations. Alameda Books, 122 S.Ct. at 1733 (plurality
opinion); id. at 1741 (Kennedy, J., concurring); Renton, 475
U.S. at 46-47. A time, place, and manner regulation of adult
entertainment will be upheld if it is “designed to serve
a substantial government interest and . . . reasonable alter-
native avenues of communication remain[ ] available.”
Alameda Books, 122 S.Ct. at 1734. Additionally, a time,
place, and manner regulation must be justified without
reference to the content of the regulated speech and nar-
rowly tailored to serve the government’s interest. Schultz,
16
228 F.3d at 845.
16
In Renton, the Supreme Court created some confusion as to
the appropriate test for analyzing time, place, and manner
regulations by asserting that “time, place, and manner regula-
tions are acceptable so long as they are designed to serve
a substantial governmental interest and do not unreasonably
limit alternative avenues of communication.” 475 U.S. at 47.
However, as we emphasized in City of Watseka v. Illinois Pub-
lic Action Council, 796 F.2d 1547 (7th Cir. 1986), “[t]he Supreme
Court does not always spell out the ‘narrowly tailored’ step as
part of its standard for evaluating time, place, and manner
restrictions.” Id. at 1553. Moreover, a close examination of
Renton reveals that the Court did consider whether the zoning
ordinance at issue was narrowly tailored. 475 U.S. at 52 (“[t]he
Renton ordinance is ‘narrowly tailored’ to affect only that
category of theaters shown to produce the unwanted secondary
(continued...)
No. 01-4351 21
In this case, however, we are not dealing with a zoning
ordinance or a public indecency statute. Instead, we are
called upon to evaluate the constitutionality of an adult
entertainment liquor regulation. Therefore, it is not en-
tirely clear whether Section 5(b) should be analyzed as a
time, place, and manner restriction or as a regulation of
expressive conduct under O’Brien’s four-part test; or for
that matter whether the tests are entirely interchangeable.
See LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 365
(5th Cir.), cert. denied, 123 S.Ct. 621 (2002) (noting uncer-
tainty as to which test courts should use in analyzing
the constitutionality of adult entertainment regulations:
“the test for time, place, or manner regulations, described
in Renton . . . or the four-part test for incidental limita-
tions on First Amendment freedoms, established in
O’Brien . . . .”). For all practical purposes, however, the
distinction is irrelevant because the Supreme Court has
held that the time, place, and manner test embodies
much of the same standards as those set forth in United
States v. O’Brien. Barnes, 501 U.S. at 566 (plurality opin-
ion) (relying on Clark v. Community for Creative Non-Vio-
lence, 468 U.S. 288, 298-99 (1984)); LLEH, 289 F.3d at 365-66
17
(same). Moreover, as explained infra, two of the Su-
16
(...continued)
effects . . . .”). In any event, both the Supreme Court and this
circuit have continued to apply the “narrowly tailored” step
to time, place, and manner regulations. See Ward v. Rock
Against Racism, 491 U.S. 781, 796 (1989); Frisby v. Schultz, 487 U.S.
474, 481 (1987); Pleasureland Museum, Inc. v. Beutter, 288 F.3d
988, 1000 (7th Cir. 2002).
17
But see Alameda Books, 122 S.Ct at 1745 n.2 (Souter, J., dis-
senting) (joined by Stevens, J. and Ginsburg, J.) (noting that
“[b]ecause Renton called its secondary-effects ordinance a mere,
(continued...)
22 No. 01-4351
preme Court’s post-44 Liquormart decisions—Pap’s A.M.
and Alameda Books—make it abundantly clear that the
analytical frameworks and standards utilized by the Court
in evaluating adult entertainment regulations, be they
zoning ordinances or public indecency statutes, are vir-
tually indistinguishable. We, therefore, conclude that it
is appropriate to analyze the constitutionality of Section
5(b) using the standards articulated by the Supreme Court
in the five decisions comprising the American Mini Thea-
tres and Barnes lines of jurisprudence. Thus, before pro-
ceeding to the merits of Ben’s Bar’s argument, we begin
our analysis by summarizing the reasoning and holdings
of these decisions.
(1) Young v. American Mini Theatres, Inc.
In Young v. American Mini Theatres, 427 U.S. 50 (1976), the
Supreme Court addressed, inter alia, whether a zoning
ordinance enacted by the City of Detroit violated the First
18
Amendment. Id. at 58. The “dispersal” ordinance at issue
prohibited the operation of any adult entertainment movie
17
(...continued)
time, place, or manner restriction and thereby glossed over the
role of content in secondary-effects zoning . . . I believe the
soft focus of its statement of the middle-tier test should be
rejected in favor of the . . . [O’Brien] formulation . . . a closer
relative of secondary effects zoning than mere time, place,
and manner regulations, as the Court . . . implicitly recognized
[in Pap’s A.M.].”).
18
The Court also concluded that the zoning ordinance did not
violate the Due Process and Equal Protection Clauses of the
Fourteenth Amendment, American Mini Theatres, 427 U.S. at 61,
72-73; see generally id. at 73-84 (Powell, J., concurring), issues
that are not before us on appeal.
No. 01-4351 23
theater within 1,000 feet of any two other “regulated uses”
(e.g., adult bookstores, bars, hotels, pawnshops), or with-
in 500 feet of a residential area. Id. at 52. A majority of
the Court upheld the constitutionality of the ordinance,
but in doing so did not agree on a single rationale for
the decision. Id. at 62-63 (plurality opinion); id. at 84(Powell, J. concurring). The plurality concluded that “apart
from the fact that the ordinance treats adult theaters dif-
ferently from other theaters and the fact that the classifica-
tion is predicated on the content of material shown in
respective theaters, the regulation of the place where such
films may be exhibited does not offend the First Amendment.”
Id. at 63 (emphasis added). In reaching this conclusion, the
plurality emphasized that “even though we recognize
that the First Amendment will not tolerate the total sup-
pression of erotic materials that have some arguably artis-
tic value, it is manifest that society’s interest in protect-
ing this type of expression is of a wholly different, and
lesser, magnitude than the interest in untrammeled polit-
ical debate.” Id. at 70. The plurality also found that the
city’s zoning ordinance was justified by its interest in “pre-
serving the character of its neighborhoods,” id. at 71, and
therefore “the city must be allowed a reasonable oppor-
tunity to experiment with solutions to admittedly serious
problems.” Id. The plurality concluded its analysis by not-
ing that “what is ultimately at stake is nothing more than
a limitation on the place where adult films may be exhi-
19
bited . . . .” Id.19
The American Mini Theatres plurality also noted, in a footnote,
that the city had enacted the zoning ordinance because of its
determination that “a concentration of ‘adult’ movie theaters
causes the area to deteriorate and become a focus of crime, ef-
fects which are not attributable to theaters showing other types
(continued...)
24 No. 01-4351
Justice Powell concurred in the judgment of the Court,
agreeing with the plurality that the zoning ordinance “is
addressed only to the places at which this type of expres-
sion may be presented, a restriction that does not inter-
fere with content.” Id. at 78-79. He disagreed, however,
with the plurality’s determination that “nonobscene,
erotic materials may be treated differently under First
Amendment principles from other forms of protected
expression.” Id. at 73 n.1. Instead, Justice Powell concluded
that it was appropriate to analyze and uphold the con-
stitutionality of the zoning ordinance under the four-part
test enunciated in United States v. O’Brien, 391 U.S. 36720
(1968). Id. at 79.
(2) City of Renton v. Playtime Theatres, Inc.
The Supreme Court’s decision in American Mini Theatres
laid the groundwork for the Court’s decision in City
21
of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In
19
(...continued)
of films,” 427 U.S. at 71 n.34 (emphasis added), noting “[i]t is
this secondary effect which these zoning ordinances attempt
to avoid, not the dissemination of ‘offensive’ speech.” Id. (em-
phasis added).
20
Under Marks v. United States, 430 U.S. 188, 193 (1977), Justice
Powell’s concurrence is the controlling opinion in American
Mini Theatres, as the most narrow opinion joining four other
Justices in the judgment of the Court. Entertainment Concepts,
Inc., III v. Maciejewski, 631 F.2d 497, 504 (7th Cir. 1980).
21
Falling in between American Mini Theatres and Renton is the
Supreme Court’s decision in Schad v. Borough Mount Ephraim,
452 U.S. 61 (1981), where the Court struck down, on First
(continued...)
No. 01-4351 25
Renton, the Court considered the validity of an adult en-
tertainment zoning ordinance virtually indistinguishable
from the one at issue in American Mini Theatres. Id. at 46.
Unlike the American Mini Theatres plurality, however, the
Renton Court outlined an analytical framework for evaluat-
ing the constitutionality of these ordinances. The Court’s
analysis proceeded in three steps. First, the Court found
that the ordinance did not ban adult theaters altogether,
but merely required that they be distanced from certain
sensitive locations. Id. Next, the Court considered whether
the ordinance was content-neutral or content-based. If an
ordinance is content-based, it is presumptively invalid
and subject to strict scrutiny. Id. at 46-47. On the other
hand, if an ordinance is aimed not at the content of the
films shown at adult theaters, but rather at combating the
secondary effects of such theaters on the surrounding com-
munity (e.g., increased crime rates, diminished property
values), it will be treated as a content-neutral regulation.
Id. In Renton, the Court held that the zoning ordinance
was a “content neutral” regulation of speech because while
21
(...continued)
Amendment grounds, a zoning ordinance that did not—like
the ordinance in American Mini Theatres—require the dispersal
of adult theaters, but instead prohibited them altogether. Id. at
71-72 (plurality opinion); id. at 77 (Blackmun, J., concurring);
id. at 79 (Powell, J., concurring). The only significance of Schad,
for purpose of our analysis, is that the holding of that case
serves as the basis for the first step in the Renton framework—i.e.,
does the ordinance completely prohibit the expressive conduct
at issue? See Alameda Books, 122 S.Ct. at 1733 (noting that the
first step in the Renton framework was the Court’s determina-
tion that “the ordinance did not ban adult theaters altogether,
but merely required that they be distanced from certain sensi-
tive locations”); Renton, 475 U.S. at 46.
26 No. 01-4351
“the ordinance treats theaters that specialize in adult
films differently from other kinds of theaters . . . . [it] is
aimed not at the content of the films shown . . . but rather
at the secondary effects of such theaters on the surround-
ing community.” 475 U.S. at 47. Finally, given this finding,
the Renton Court found that the zoning ordinance would
be upheld as a valid time, place and manner regulation,
id. at 46, if it “was designed to serve a substantial govern-
mental interest and [did] not unreasonably limit alterna-
tive avenues of communication.” Id. at 47. The Court
concluded that the zoning ordinance met this test, noting
that a “ ‘city’s interest in attempting to preserve the quality
of urban life is one that must be accorded high respect.’ ”
22
id. at 50 (quoting American Mini Theatres, 427 U.S. at 71),
and that the ordinance allowed for reasonable alterna-
tive avenues of communication because there was “ample,
accessible real estate” open for use as adult theater sites.
Id. at 53.
The Supreme Court’s decision in Renton is also nota-
ble because in addition to upholding the constitutionality of
the zoning ordinance, the Court also held that the
First Amendment did not require municipalities, before
enacting such ordinances, to conduct new studies or pro-
duce evidence independent of that already generated by
other cities (whether summarized in judicial decisions or
not), Renton, 475 U.S. at 51-52, so long as “whatever evi-
dence [a] city relies upon is reasonably believed to be
relevant to the problem that the city addresses.” Id.22
See also American Mini Theatres, 427 U.S. at 80 (Powell, J.,
concurring) (“Nor is there doubt that the interests furthered
by this ordinance are both important and substantial”).
No. 01-4351 27
(3) Barnes v. Glen Theatre, Inc.
In Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the
Supreme Court was called upon to address the constitution-
ality of Indiana’s public indecency statute. In a splintered
decision, a narrow majority of the Court held that the
statute—which prohibited nudity in public places—could
be enforced against establishments featuring nude danc-
ing, i.e., by requiring dancers to wear pasties and G-strings
during their performances, without violating the First
Amendment’s right of free expression. Id. at 565 (plurality
opinion); id. at 572 (Scalia, J. concurring); id. at 582, 585(Souter, J. concurring). Of that majority, however, only three
Justices agreed on a single rationale.
The plurality—Chief Justice Rehnquist and Justices
O’Connor and Kennedy—began its analysis by emphasiz-
ing that while “nude dancing . . . is expressive conduct
within the outer perimeters of the First Amendment . . . .
[w]e must [still] determine the level of protection to be
afforded to the expressive conduct at issue, and . . . whether
the Indiana statute is an impermissible infringement of
that protected activity.” Barnes, 501 U.S. at 566. The plural-
ity noted that the public indecency statute did not “ban[ ]
nude dancing, as such, but . . . proscribed public nudity
across the board,” id., and that “the Supreme Court of
Indiana has construed the Indiana statute to preclude
nudity in what are essentially places of public accom-
modation.” Id. Next, the plurality concluded that the pub-
lic indecency statute should be analyzed under O’Brien’s
four-part test for evaluating regulations of expressive
23
conduct protected by the First Amendment. Applying this
23
In doing so, the Barnes plurality noted that the O’Brien test
and the time, place, and manner test utilized by the Court
(continued...)
28 No. 01-4351
test, the plurality found “that Indiana’s public indecency
statute [was] justified despite its incidental limitations
on some expressive activity,” id. at 567, because: (1) the
statute was “clearly within the constitutional power of the
State and furthers substantial governmental interests [i.e.,
protecting societal order and morality],” id. at 568; (2) the
state’s interest in protecting societal order and morality
by enforcing the statute to prohibit nude dancing was
“unrelated to the suppression of free expression” because
“the requirement that the dancers don pasties and G-strings
does not deprive the dance of whatever erotic message
it conveys; it simply makes the message slightly less graph-
ic [and] [t]he perceived evil that Indiana seeks to address
is not erotic dancing, but public nudity,” id. at 570-71; (3)
the incidental restriction on First Amendment freedom
placed on nude dancing by the statute was no greater than
essential to the furtherance of the governmental interest
because “[t]he statutory prohibition is not a means to
some greater end, but an end in itself,” id. at 571-72; and
(4) the public indecency statute was narrowly tailored
because “Indiana’s requirement that the dancers wear
pasties and G-strings is modest, and the bare minimum
necessary to achieve the State’s purpose.” Id. at 572 (emphasis
added).
Justice Scalia concurred in the judgment of the Court, but
in doing so expressed his opinion that “the challenged
regulation must be upheld not because it survives some
lower level of First Amendment scrutiny, but because, as
a general law regulating conduct and not specifically di-
rected at expression, it is not subject to First Amendment
23
(...continued)
in Renton have “been interpreted to embody much the same
standards . . . .” 501 U.S. at 566.
No. 01-4351 29
scrutiny at all.” Id. at 572. Justice Souter also concurred
in the judgment of the Court, agreeing with the plurality
that “the appropriate analysis to determine the actual
protection required by the First Amendment is the four-
part inquiry described in United States v. O’Brien.” Id. at
582. He wrote separately, however, to rest his concurrence
in the judgment, “not on the possible sufficiency of society’s
moral views to justify the limitations at issue, but on the
State’s substantial interest in combating the secondary
effects of adult entertainment establishments . . . .”
24
Id. In doing so, Justice Souter relied heavily on the
Court’s decision in Renton. Id. at 583-87.
(4) City of Erie v. Pap’s A.M.
The Supreme Court revisited the Barnes holding in City
of Erie v. Pap’s A.M., 529 U.S. 277 (2000), where a majority
of the Court upheld the constitutionality of a public inde-
cency ordinance “strikingly similar” to the one at issue in
Barnes. Id. at 283. Unlike Barnes, however, in Pap’s A.M.
five justices agreed that the proper framework for analyz-
ing public indecency statutes was O’Brien’s four-part test.
Id. at 289 (plurality opinion) (“We now clarify that gov-
ernment restrictions on public nudity . . . should be evalu-
ated under the framework set forth in O’Brien for content-
neutral restrictions on symbolic speech”); id. at 310(Souter, J., concurring in part and dissenting in part)
(agreeing with the “analytical approach that the plurality
employs in deciding this case [i.e., the O’Brien test]”). See
24
Under Marks, 430 U.S. at 193, Justice Souter’s concurrence is
the controlling opinion in Barnes, as the most narrow opinion
joining the judgment of the Court. Schultz, 228 F.3d at 842 n.2;
DiMa Corp., 185 F.3d at 830.
30 No. 01-4351
also Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1278 (11th
Cir. 2001) (holding that “[a]lthough no opinion in [Pap’s
A.M.] was joined by more than four Justices, a majority of
the Court basically agreed on how these kinds of statutes
should be analyzed [i.e., O’Brien’s four-part test]”). A
majority of the Justices also agreed that combating the
adverse secondary effects of nude dancing was within
the city’s constitutional powers and unrelated to the sup-
pression of free expression, Pap’s A.M., 529 U.S. at 296,
301 (plurality opinion) (“Erie’s efforts to protect public
health and safety are clearly within the city’s police pow-
ers . . . . [and] [t]he ordinance is unrelated to the suppres-
sion of free expression . . . .”); id. at 310 (Souter, J., concur-
ring in part and dissenting in part) (“Erie’s stated interest
in combating the secondary effects associated with nude
dancing establishments is an interest unrelated to the
suppression of expression . . . .”), thus satisfying the first
and third prongs of the O’Brien test.
A majority of the Justices in Pap’s A.M. could not, how-
ever, agree on whether the public indecency statute fur-
thered an important or substantial interest of the city
(second prong of O’Brien), and if so whether the incidental
restriction on nude dancing was no greater than that
essential to the furtherance of this interest (fourth prong).
The plurality—Chief Justice Rehnquist and Justices O’Con-
nor, Kennedy, and Breyer—concluded that Erie’s public
indecency ordinance furthered an important or substan-
tial government interest under O’Brien because “[t]he
asserted interests of regulating conduct through a pub-
lic nudity ban and of combating the harmful secondary
effects associated with nude dancing [e.g., the increased
crime generated by such establishments] are undeniably
No. 01-4351 31
25
important.” Pap’s A.M., 529 U.S. at 296. The Pap’s A.M.
plurality also found that Erie’s public indecency statute
was no greater than that essential to furthering the city’s
interest in combating the harmful secondary effects of
nude dancing because:
The ordinance regulates conduct, and any incidental
impact on the expressive element of nude dancing is
de minimis. The requirement that dancers wear pasties
and G-strings is a minimal restriction in furtherance
of the asserted government interests, and the restric-
tion leaves ample capacity to convey the dancer’s
erotic message.
529 U.S. at 301.
Justice Scalia, joined by Justice Thomas, agreed with the
plurality that the ordinance should be upheld, but wrote
separately to emphasize that “ ‘as a general law regulating
conduct and not specifically directed at expression, [the
city’s public indecency ordinance] is not subject to First
Amendment scrutiny at all,’ ” Pap’s A.M., 529 U.S. at 307-08(quoting Barnes, 501 U.S. at 572 (Scalia, J., concurring)), and
that “[t]he traditional power of government to foster
good morals (bonos mores), and the acceptability of the
traditional judgment (if Erie wishes to endorse it) that nude
public dancing itself is immoral, have not been repealed
by the First Amendment.” Id. at 310. Justice Souter con-
25
The Pap’s A.M. plurality’s reliance on Renton’s secondary ef-
fects doctrine is significant because it marks a departure from
the Barnes plurality’s determination that a public indecency
ordinance may be justified by a State’s interest in protecting
societal order and morality, Barnes, 501 U.S. at 568, and an
adoption of the approach advocated by Justice Souter in his
concurrence in that case. Id. at 582.
32 No. 01-4351
curred in part and dissented in part, stressing his belief
that “the current record [does not] allow us to say that
the city has made a sufficient evidentiary showing to
sustain its regulation . . . .” Id. at 310-11. Justice Stevens,
joined by Justice Ginsburg, dissented, asserting that the
ordinance was a “patently invalid” content-based ban on
nude dancing that censored protected speech. Id. at 331-32.
Because the plurality’s decision offers the narrowest
ground for the Supreme Court’s holding in Pap’s A.M., we
find the reasoning of that opinion to be controlling. Marks,
430 U.S. at 193.
(5) City of Los Angeles v. Alameda Books, Inc.
This past term in City of Los Angeles v. Alameda Books, Inc.,
122 S.Ct. 1728 (2002), the Supreme Court upheld, at the
summary judgment stage, an ordinance prohibiting multi-
ple adult entertainment businesses from operating in the
same building. Id. at 1733. The Court reached this con-
clusion despite the fact that the city had not, prior to the
enactment of the ordinance, conducted or relied upon
studies (or other evidence) specifically demonstrating
that forbidding multiple adult entertainment businesses
from operating under one roof reduces secondary effects.
Id. at 1736 (plurality opinion); id. at 1744 (Kennedy, J.,
concurring). Once again, however, a majority of the Court
could not agree on a single rationale for this decision.
The primary issue in Alameda Books was the appropriate
standard “for determining whether an ordinance serves
a substantial government interest under Renton.” 122
S.Ct. at 1733. The plurality—written by Justice O’Connor
and joined by Chief Justice Rehnquist and Justices Scalia
and Thomas—concluded that whether a municipal ordi-
nance is “ ‘designed to serve a substantial government
No. 01-4351 33
interest and does not unreasonably limit alternative avenues
of communication’ . . . requires [courts to] . . . ask[ ] whether
the municipality can demonstrate a connection between
the speech regulated by the ordinance and the secondary
effects that motivated the adoption of the ordinance.” Id.
at 1737. According to the plurality, this requirement is met
if the evidence upon which the municipality enacted the
regulation “ ‘is reasonably believed to be relevant’ for dem-
onstrating a connection between [secondary effects produc-
ing] speech and a substantial, independent government
interest.” Id. at 1736. The plurality stressed that once a
municipality presents a rational basis for addressing the
secondary effects of adult entertainment through evidence
that “fairly support[s] the municipality’s rationale for its
ordinance,” id., the plaintiff challenging the constitutional-
ity of the ordinance must “cast direct doubt on this ration-
ale, either by demonstrating that the municipality’s evi-
dence does not support its rationale or by furnishing
evidence that disputes the municipality’s factual findings.”
Id. If a plaintiff fails to cast doubt on the municipality’s
rationale, the inquiry is over and “the municipality meets
the standard set forth in Renton.” Id. If, however, a plain-
tiff succeeds “in casting doubt on a municipality’s rationale
in either manner, the burden shifts back to the munici-
pality to supplement the record with evidence renewing
support for a theory that justifies its ordinance.” Id. Because
the plurality concluded that the city, for purposes of sum-
mary judgment, had complied with the evidentiary require-
ment outlined in Renton, id., it remanded the case for fur-
ther proceedings. Id. at 1738.
Justice Scalia, in addition to joining the plurality opinion,
wrote separately to emphasize that while the plurality’s
opinion “represents a correct application of our jurispru-
dence concerning the regulation of the ‘secondary effects’
of pornographic speech . . . . our First Amendment tradi-
34 No. 01-4351
tions make ‘secondary effects’ analysis quite unnecessary.
The Constitution does not prevent those communities
that wish to do so from regulating, or indeed entirely sup-
pressing, the business of pandering sex.” Alameda Books,
122 S.Ct. at 1738-39.
Justice Kennedy concurred in the judgment of the
Court, but writing separately because he concluded,
inter alia, that “the plurality’s application of Renton might
constitute a subtle expansion, with which I do not con-
cur.” Id. at 1739. He began, however, by expressing his
agreement with the plurality that the secondary effects
resulting from “high concentrations of adult businesses
can damage the value and integrity of a neighborhood,”
id., stressing “[t]he damage is measurable; it is all too real.”
Id. He also agreed with the plurality that “[t]he law does
not require a city to ignore these consequences if it uses
its zoning power in a reasonable way to ameliorate them
without suppressing speech,” id., emphasizing that “[a]
city’s ‘interest in attempting to preserve the quality of
urban life is one that must be accorded high respect.’ ” Id.(quoting American Mini Theatres, 427 U.S. at 71). In Justice
Kennedy’s opinion, if a municipality ameliorates the sec-
ondary effects of adult entertainment through “the tradi-
tional exercise of its zoning power, and at the same
time leaves the quantity and accessibility of the speech
substantially undiminished, there is no First Amendment
objection . . . . even if the measure identifies the problem
outside by reference to the speech inside—that is, even if
26
the measure is in that sense content based.” Id. Like
26
The plurality in Alameda Books characterized the second step
of the Renton framework as follows: “[w]e next consider[ ]
whether the ordinance [is] content neutral or content based.” 122
(continued...)
No. 01-4351 35
the plurality, he concluded that “[a] zoning law need not
be blind to the secondary effects of adult speech, so long
as the purpose of the law is not to suppress it.” Id. at 1740.
He also expressed his belief that zoning regulations “do
not automatically raise the specter of impermissible con-
tent discrimination, even if they are content based, be-
cause they have a prima facie legitimate purpose: to limit
the negative externalities of land use . . . [and that] [t]he
zoning context provides a built-in legitimate rationale,
which rebuts the usual presumption that content-based
restrictions are unconstitutional.” Id. at 1741.
Based on the foregoing principles, Justice Kennedy
believes that two questions must be asked by a court
seeking to determine whether a zoning ordinance regulat-
ing adult entertainment is designed to meet a substantial
26
(...continued)
S.Ct. at 1734. In his concurrence, Justice Kennedy joined the
four dissenters, id. at 1744-45, in jettisoning the “content neu-
tral” label, noting that the “fiction” of adult entertainment zon-
ing ordinances being “content neutral . . . is perhaps more
confusing than helpful . . . . These ordinances are content based
and we should call them so.” Id. at 1741. In reaching this con-
clusion, Justice Kennedy emphasized that “whether a statute
is content neutral or content based is something that can be
determined on the face of it; if the statute describes speech
by content then it is content based.” Id. Justice Kennedy con-
cluded, however, that an adult entertainment zoning ordinance
is not subject to strict scrutiny simply because it “identifies
the problem outside by reference to the speech inside,” id. at
1740, and, as such, “the central holding of Renton is sound: A
zoning restriction that is designed to decrease secondary effects
and not speech should be subject to intermediate rather than
strict scrutiny.” Id. at 1741. Thus, while the label has changed,
the substance of Renton’s second step remains the same.
36 No. 01-4351
government interest: (1) “what proposition does a city need
to advance in order to sustain a secondary-effects ordi-
nance?”, Alameda Books, 122 S.Ct at 1741; and (2) “how
much evidence is required to support the proposition?”
Id. According to Justice Kennedy, the plurality skipped
the second question, giving the correct answer, but ne-
glected to give sufficient “attention” to the first question,
id., i.e., “the claim a city must make to justify a content-
based ordinance.” Id. at 1742. In his view, “a city must
advance some basis to show that its regulation has the
purpose and effect of suppressing secondary effects,
while leaving the quantity and accessibility of speech
substantially intact,” id., and “[t]he rationale of the ordi-
nance must be that it will suppress secondary effects . . .
not . . . speech.” Id. Justice Kennedy’s primary area of
disagreement with the plurality’s analysis was that, in his
opinion, it failed to “address how speech [would] fare
under the city’s ordinance.” Id.
The differences between Justice Kennedy’s concur-
rence and the plurality’s opinion are, however, quite sub-
tle. Justice Kennedy’s position is not that a municipality
must prove the efficacy of its rationale for reducing sec-
ondary effects prior to implementation, as Justice Souter
and the other dissenters would require, see generally
Alameda Books, 122 S.Ct at 1744-51; but that a municipality’s
rationale must be premised on the theory that it “may reduce
the costs of secondary effects without substantially reduc-
ing speech.” Id. at 1742 (emphasis added). Significantly,
while Justice Kennedy believed that the plurality did not
adequately address this aspect of the city’s rationale, he
agreed with the plurality’s overall conclusion that a mu-
nicipality’s initial burden of demonstrating a substantial
government interest in regulating the adverse secondary
effects associated with adult entertainment is slight, noting:
No. 01-4351 37
As to this, we have consistently held that a city must
have latitude to experiment, at least at the outset, and
that very little evidence is required . . . . As a general
matter, courts should not be in the business of second-
guessing fact-bound empirical assessments of city
planners. The Los Angeles City Council knows the
streets of Los Angeles better than we do. It is entitled
to rely on that knowledge; and if its inferences appear
reasonable, we should not say there is no basis for its
conclusion.
Id. at 1742-43 (emphasis added).
The dissenting opinion of Justice Souter, joined by Jus-
tices Stevens and Ginsburg in full and by Justice Breyer
with respect to part II, asserted that the Court should
have struck down the ordinance. Alameda Books, 122 S.Ct.
at 1747 (Souter, J., dissenting).
Because Justice Kennedy’s concurrence is the narrowest
opinion joining the judgment of the Court in Alameda
Books, we conclude that it is the controlling opinion. Marks,
430 U.S. at 193.
D. Does Section 5(b)’s prohibition of alcohol on the
premises of Sexually Oriented Businesses violate
the First Amendment?
Based on the road map provided by the Supreme Court
in 44 Liquormart, as described supra, we conclude that a
liquor regulation prohibiting the sale or consumption of
alcohol on the premises of adult entertainment establish-
ments is constitutional if: (1) the State is regulating pursu-
ant to a legitimate governmental power, O’Brien, 391 U.S.
at 377; (2) the regulation does not completely prohibit
adult entertainment, Renton, 475 U.S. at 46; (3) the regula-
38 No. 01-4351
tion is aimed not at the suppression of expression, but
rather at combating the negative secondary effects caused
by adult entertainment establishments, Pap’s A.M., 529 U.S.
27at 289-91; and (4) the regulation is designed to serve a
substantial government interest, narrowly tailored, and
reasonable alternative avenues of communication remain
available, see Alameda Books, 122 S.Ct. at 1734 (plurality
opinion); id. at 1739-44 (Kennedy, J. concurring); or, al-
ternatively, the regulation furthers an important or sub-
stantial government interest and the restriction on expres-
sive conduct is no greater than is essential in furtherance
of that interest. Pap’s A.M., 529 U.S. at 296, 301 (plurality
opinion); id. at 310 (Souter, J., concurring in part and
dissenting in part).
Applying the foregoing analytical framework here, we
conclude that Section 5(b) does not violate the First Amend-
ment. To begin with, the Village’s regulation of alcohol
sales and consumption in “inappropriate locations” is clear-
ly within its general police powers. 44 Liquormart, 517 U.S.
at 515; LaRue, 409 U.S. at 114. As such, the Village en-
acted Section 5(b) “within the constitutional power of the
Government.” Pap’s A.M., 529 U.S. at 296 (holding that
a municipality’s efforts to protect the public’s health and
safety through its general police powers satisfies this
requirement); O’Brien, 391 U.S. at 377 (same).
The next two prongs of our test concern the level of
constitutional scrutiny that must be applied to Section 5(b).
27
This prong is, for all practical purposes, identical to the
Alameda Books plurality’s inquiry into whether the zoning
ordinance “was content neutral or content based.” 122 S.Ct. at
1733-34. Although a majority of the Justices no longer employ
the content neutral label when evaluating the constitutionality
of a “secondary effects” ordinance, the ultimate inquiry remains
the same. See supra n.26.
No. 01-4351 39
The level of First Amendment scrutiny a court uses to
determine whether a regulation of adult entertainment is
constitutional depends on the purpose for which the
regulation was adopted. If the regulation was enacted to
restrict certain viewpoints or modes of expression, it is
presumptively invalid and subject to strict scrutiny. Texas
v. Johnson, 491 U.S. 397, 403, 411-12 (1989); Renton, 475
U.S. at 46-47. If, on the other hand, the regulation was
adopted for a purpose unrelated to the suppression of
expression—e.g., to regulate nonexpressive conduct or the
time, place, and manner of expressive conduct—a court
must apply a less demanding intermediate scrutiny. 491
U.S. at 406-07; Pap’s A.M., 529 U.S. at 289 (plurality opin-
ion); id. at 310 (Souter, J., concurring in part and dissent-
ing in part).
The Supreme Court has held that regulations of adult
entertainment receive intermediate scrutiny if they are
designed not to suppress the “content” of erotic expres-
sion, but rather to address the negative secondary effects
caused by such expression. Alameda Books, 122 S.Ct. at 1733-
34 (plurality opinion), id. at 1741 (Kennedy, J., concurring);
Renton, 475 U.S. at 48. Here, Section 5(b), like the liquor
regulations at issue in LaRue, 409 U.S. at 118, does not
completely prohibit Ben’s Bar’s dancers from conveying
an erotic message; it merely prohibits alcohol from be-
ing sold or consumed on the premises of adult entertain-
ment establishments. See, e.g., Wise Enterprises, Inc. v.
Unified Gov’t of Athens-Clarke County, Georgia, 217 F.3d
1360, 1365 (11th Cir. 2000) (holding that “[t]he ordinance
does not prohibit all nude dancing, but only restricts
nude dancing in those locations where the unwanted
secondary effects arise”); Sammy’s of Mobile, Ltd. v. City
of Mobile, 140 F.3d 993, 998 (11th Cir. 1998) (holding that
ordinance prohibiting alcohol on the premises of adult
entertainment establishments did not ban nude dancing,
but merely restricted “the place or manner of nude danc-
40 No. 01-4351
ing without regulating any particular message it might
convey”). Moreover, it is clear that the “predominant con-
cerns” motivating the Village’s enactment of Section 5(b)
“ ‘were with the secondary effects of adult [speech], and
not with the content of adult [speech].’ ”Alameda Books,
122 S.Ct. at 1737 (plurality opinion) (quoting Renton, 475
28
U.S. at 47); id. at 1739-41 (Kennedy, J., concurring). The
Village enacted the Ordinance because it believed “there
is convincing documented evidence that Sexually Ori-
ented Businesses have a deleterious effect on both exist-
ing businesses around them and the surrounding resi-
dential areas adjacent to them, causing increased crime and
the downgrading of property values.” Specifically, the
Village concluded that “the consumption of alcoholic bev-
erages on the premises of a Sexually Oriented Business
exacerbates the deleterious secondary effects of such
businesses on the community.” Additionally, in passing
the Ordinance, the Village emphasized (in the text of
the Ordinance) that its intention was not “to suppress
any speech activities protected by the First Amendment,
but to enact a[n] . . . ordinance which addresses the sec-
ondary effects of Sexually Oriented Businesses,” and
that it was not attempting to “restrict or deny access by
adults to sexually oriented-materials protected by the First
Amendment . . . .”
For all of the foregoing reasons, Section 5(b) is properly
analyzed as a content-based time, place, and manner
28
Federal courts evaluating the “predominant concerns” behind
the enactment of a statute, ordinance, regulation, or the like,
may do so by examining a wide variety of materials including,
but not limited to, the text of the regulation or ordinance,
any preamble or express legislative findings associated with
it, and studies and information of which legislators were clear-
ly aware. Ranch House, 238 F.3d at 1280.
No. 01-4351 41
restriction, or as a content-based regulation of expressive
conduct, and therefore is subject only to intermediate
scrutiny. Alameda Books, 122 S.Ct. at 1733-36 (plurality
opinion), id. at 1741 (Kennedy, J. concurring); Pap’s A.M.,
529 U.S. at 294-96 (plurality opinion), id. at 310 (Souter,
29
J., concurring in part and dissenting in part). See also
Artistic Entm’t, Inc. v. City of Warner Robins, 223 F.3d 1306,
1308-09 (11th Cir. 2000) (holding that “a prohibition on
the sale of alcohol at adult entertainment venues . . . [is]
content-neutral and subject to the O’Brien test”); Wise
Enterprises, 217 F.3d at 1364 (holding that “[i]t is clear from
these [legislative] statements the County’s ordinance is
aimed at the secondary effects of nude dancing combined
with the consumption of alcoholic beverages, not at the
message conveyed by nude dancing . . . . [T]he district court
was [therefore] correct in [applying] . . . intermediate
scrutiny . . . .”). Regulations that prohibit nude dancing
where alcohol is served or consumed are independent
of expressive or communicative elements of conduct, and
therefore are treated as if they were content-neutral. Wise
Enterprises, 217 F.3d at 1363.
This brings us to the heart of our analysis: whether Sec-
tion 5(b) is designed to serve a substantial government
interest, narrowly tailored, and does not unreasonably li-
mit alternative avenues of communication, or, alterna-
29
Compare G.Q. Gentlemen’s Quarters, Inc. v. City of Lake Ozark,
Missouri, 83 S.W.3d 98, 103 (Mo. Ct. App. 2002) (holding that
because the city presented no evidence that its purpose in
enacting an ordinance restricting nudity in establishments
where alcoholic beverages are sold “was to prevent the nega-
tive secondary effects associated with erotic dancing establish-
ments, and, thus, that the ordinance was unrelated to the
suppression of expression, the City had the heavy burden of
justifying the ordinance under the strict scrutiny standard”).
42 No. 01-4351
tively, furthers an important or substantial government
interest and the restriction on expressive conduct is no
greater than is essential in furtherance of that interest. As
previously noted, it is not entirely clear whether an adult
entertainment liquor regulation is to be treated as a time,
place, and manner regulation, or instead as a regulation
of expressive conduct under O’Brien. See, e.g., LLEH, Inc.,
289 F.3d at 365. But in either case, we are required to ask
“whether the municipality can demonstrate a connection
between the speech regulated by the ordinance and the
secondary effects that motivated the adoption of the ordi-
nance.” Alameda Books, 122 S.Ct. at 1737 (plurality opinion).
At this stage, courts must “examine evidence concerning
regulated speech and secondary effects.” Id. In conduct-
ing this inquiry, we are required, as previously noted, to
answer two questions: (1) “what proposition does a city
need to advance in order to sustain a secondary-effects
ordinance?”; and (2) “how much evidence is required to
support the proposition?” Id. at 1741 (Kennedy, J. concur-
30
ring).
At the outset, we note that in order to justify a content-
based time, place, and manner restriction or a content-based
regulation of expressive conduct, a municipality “must
advance some basis to show that its regulation has the
purpose and effect of suppressing secondary effects [i.e.,
is designed to serve, or furthers, a substantial or impor-
tant governmental interest], while leaving the quantity
and accessibility of speech substantially intact [i.e., that
the regulation is narrowly tailored and does not unrea-
30
As noted supra, under Marks v. United States, 430 U.S. 188(1977), Justice Kennedy’s concurrence is the controlling opin-
ion, as the most narrow opinion joining the judgment of the
Court.
No. 01-4351 43
sonably limit alternative avenues of communication, or,
alternatively, that the restriction on expressive conduct
is no greater than is essential in furtherance of that in-
31
terest].” Alameda Books, 122 S.Ct at 1741 (Kennedy, J. con-
curring). The regulation may identify the speech based on
content, “but only as a shorthand for identifying the
secondary effects outside.” Id. A municipality “may not
assert that it will reduce secondary effects by reducing
speech in the same proportion.” Id. Thus, the rationale
behind the enactment of Section 5(b) must be that it will
suppress secondary effects, not speech. Id.The Village’s rationale in support of Section 5(b) is that
the liquor prohibition will significantly reduce the sec-
ondary effects that naturally result from combining adult
entertainment with the consumption of alcoholic bev-
erages without substantially diminishing the availability
of adult entertainment, in this case nude and semi-nude
dancing. In enacting the Ordinance, the Village Board
relied on numerous judicial decisions, studies from 11
different cities, and “findings reported in the Regulation
of Adult Entertainment Establishments of St. Croix, Wis-
consin; and the Report of the Attorney General’s Work-
ing Group of Sexually Oriented Businesses (June 6, 1989,
State of Minnesota),” to support its conclusion that adult
entertainment produces adverse secondary effects.
31
In this case, it is unnecessary to conclusively resolve which
of these two standards is applicable. As explained infra, Sec-
tion 5(b)’s alcohol prohibition is, as a practical matter, the
least restrictive means of furthering the Village’s interest in
combating the secondary effects resulting from the combina-
tion of adult entertainment and alcohol consumption, and
therefore satisfies either standard.
44 No. 01-4351
Ben’s Bar argues that the Village may not rely on prior
judicial decisions or the experiences of other municipal-
ities, but must instead conduct its own studies, at the
local level, to determine whether adverse secondary effects
result when liquor is served on the premises of adult
entertainment establishments. This view, however, has
been expressly (and repeatedly) rejected by the Supreme
Court. Alameda Books, 122 S.Ct. at 1743 (Kennedy, J. con-
curring) (holding that “ ‘[t]he First Amendment does not
require a city, before enacting . . . an [adult entertainment
secondary effects] ordinance to conduct new studies or
produce evidence independent of that 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.’ ”) (quoting Renton, 475 U.S. at 51-
52); Barnes, 501 U.S. at 584 (Souter, J. concurring) (same).
Ben’s Bar also contends that the Village failed to meet
its burden of demonstrating the constitutionality of Sec-
tion 5(b) because “the Village’s evidentiary record did
not include any written reports relating specifically to the
effects of serving alcohol in establishments offering nude
and semi-nude dancing.” In LaRue, however, the Supreme
Court explicitly held that a State’s conclusion that “certain
sexual performances and the dispensation of liquor by
the drink ought not to occur at premises that have li-
censes was not an irrational one.” 409 U.S. at 118. Because
the adult entertainment at issue in this case is of the
same character as that at issue in LaRue, it was entirely
reasonable for the Village to conclude that barroom nude
dancing was likely to produce adverse secondary effects
at the local level, even in the absence of specific studies
on the matter. Alameda Books, 122 S.Ct. at 1736-37 (plural-
ity opinion) (adopting view of plurality in Pap’s A.M. as
to the evidentiary requirement for adult entertainment
cases), id. at 1741 (Kennedy, J., concurring) (agreeing with
No. 01-4351 45
the plurality on this point, as a fifth vote); Pap’s A.M., 529
U.S. at 296-97 (plurality opinion) (same); Giovani, 303 F.3d
at 516 (same). In fact, the Supreme Court has gone so far
as to assert that “[c]ommon sense indicates that any form
of nudity coupled with alcohol in a public place begets
undesirable behavior.” Bellanca, 452 U.S. at 718. See also
Blue Canary, 251 F.3d at 1124 (noting that “[l]iquor and
sex are an explosive combination”); Department of Alco-
holic Beverage Control v. Alcoholic Beverage Control Appeals
Bd. of California, 121 Cal. Rptr. 2d 729, 737 (Cal. Ct. App.
2002) (same). For these reasons, we conclude that the
evidentiary record fairly supports the Village’s proffered
rationale for Section 5(b), and that Ben’s Bar has failed “to
cast direct doubt on this rationale either by demonstrat-
ing the [Village’s] evidence does not support its rationale
or by furnishing evidence that disputes the [Village’s]
factual findings . . . .” Alameda Books, 122 S.Ct. at 1736.
Ben’s Bar also contends that Section 5(b) is not nar-
rowly tailored because the Village offered no evidence
that “the incidental restrictions placed on Ben’s [Bar],
over and above the pasties and G-strings requirement,
ameliorate any purported negative secondary effects.”
This argument, however, is problematic for several reasons,
two of which we will address briefly.
First, as previously noted, Section 5(b) does not im-
pose any restrictions whatsoever on a dancer’s ability to
convey an erotic message. Instead, the regulation prohi-
bits Sexually Oriented Businesses like Ben’s Bar from
serving alcoholic beverages to its patrons during a danc-
er’s performance. This is not a restriction on erotic ex-
pression, but a prohibition of nonexpressive conduct (i.e.,
serving and consuming alcohol) during the presentation
of expressive conduct. The First Amendment does not
entitle Ben’s Bar, its dancers, or its patrons, to have alco-
46 No. 01-4351
hol available during a “presentation” of nude or semi-nude
dancing. See Gary v. City of Warner Robins, Georgia, 311
F.3d 1334, 1340 (11th Cir. 2002) (holding that ordinance
prohibiting persons under the age of 21 from entering or
working at “any establishment . . . which sells alcohol by the
drink for consumption on premises” did not violate an
underage nude dancer’s First Amendment right to free
expression because she “remains free to observe and en-
gage in nude dancing, but she simply cannot do so . . . in
establishments that primarily derive their sales from alco-
holic beverages consumed on the premises”); Sammy’s of
Mobile, 140 F.3d at 999 (holding that while nude dancing
is entitled to a degree of protection under the Supreme
Court’s First Amendment jurisprudence, “we are unaware
of any constitutional right to drink while watching nude
dancing”); Dept. of Alcoholic Beverage Control, 121 Cal. Rptr.
2d at 895 (noting that “[t]he State . . . has not prohibited
dancers from performing with the utmost level of erotic
expression. They are simply forbidden to do so in estab-
lishments which serve alcohol, and the Constitution is
thereby not offended”). What the First Amendment does
require is that establishments like Ben’s Bar be given “a
‘reasonable opportunity’ to disseminate the speech at issue.”
North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445
(7th Cir. 1996). A “reasonable opportunity,” however, does
not include a concern for economic considerations. Renton,
32
475 U.S. at 54.
32
In an affidavit filed with the district court, Barry Breault, part-
owner of Ben’s Bar, stated that:
The bulk of Ben’s Bar’s revenues are derived from beverage
sales and associated food sales. Revenues from adult enter-
tainment . . . account for only about one-third of Ben’s
(continued...)
No. 01-4351 47
Second, Section 5(b)’s alcohol prohibition, like the one
in LaRue, is limited to adult entertainment establishments,
and does not apply to:
[T]heaters, performing arts centers, civic centers, and
dinner theaters where live dance, ballet, music, and
dramatic performances of serious artistic merit are
offered on a regular basis; and in which the predomi-
nant business or attraction is not the offering of enter-
tainment which is intended for the sexual interests
or titillation of customers; and where the establish-
ment is not distinguished by an emphasis on or the
advertising or promotion of nude or semi-nude per-
33
formances.
Ordinance A-472(6). Compare Giovani, 303 F.3d at 515 (not-
ing that lack of evidentiary support for adult entertain-
ment liquor regulations “might not pose a problem if the
challenged restrictions applied only to bars and clubs
that present nude or topless dancing”).
Finally, we note that Section 5(b)’s liquor prohibition is
no greater than is essential to further the Village’s substan-
tial interest in combating the secondary effects resulting
from the combination of nude and semi-nude dancing
32
(...continued)
revenues. Ben’s Bar cannot operate at a profit without the reve-
nue from the sale of alcoholic beverages, and the business such
sales bring in.
(Emphasis added.)
33
This section of the Ordinance also emphasizes that “[w]hile
expressive live nudity may occur within these establishments
[those noted in section (6)], this ordinance seeks only to mini-
mize and prevent the secondary effects of Sexually Oriented
Businesses on the community. Negative secondary effects
have not been associated with these establishments.”
48 No. 01-4351
and alcohol consumption because, as a practical matter,
a complete ban of alcohol on the premises of adult enter-
tainment establishments is the only way the Village can
advance that interest. As the Supreme Court recognized
in LaRue,
Nothing in the record before us or in common experi-
ence compels the conclusion that either self-discipline
on the part of the customer or self-regulation on the
part of the bartender could have been relied upon by
the Department to secure compliance with . . . [the]
regulation[s]. The Department’s choice of a prophy-
lactic solution instead of one that would have re-
quired its own personnel to judge individual instances
of inebriation cannot, therefore, be deemed an unrea-
sonable one . . . .
409 U.S. at 116. See also Wise Enterprises, Inc. v. Unified
Government of Athens-Clarke County, Georgia, 217 F.3d
1360, 1364-65 (11th Cir. 2000) (holding that ordinance
prohibiting alcohol on the premises of adult entertain-
ment establishments satisfied O’Brien’s requirement that
restriction on First Amendment rights be no greater than
necessary to the furtherance of the government’s interest
because “[t]here is no less restrictive alternative”). Indeed,
unlike the zoning ordinance at issue in Alameda Books,
there is no need to speculate as to whether Section 5(b) will
achieve its stated purpose. Prohibiting alcohol on the
premises of adult entertainment establishments will unques-
tionably reduce the enhanced secondary effects resulting
from the explosive combination of alcohol consumption
and nude or semi-nude dancing.
Given the foregoing, we conclude that Section 5(b) does
not violate the First Amendment. The regulation has no
impact whatsoever on the tavern’s ability to offer nude
or semi-nude dancing to its patrons; it seeks to regulate
No. 01-4351 49
alcohol and nude or semi-nude dancing without prohibit-
ing either. The citizens of the Village of Somerset may still
buy a drink and watch nude or semi-nude dancing. They
are not, however, constitutionally entitled to do both at
the same time and in the same place. Gary, 311 F.3d at
1338 (holding that there is no generalized right to associ-
ate with other adults in alcohol-purveying establishments
with other adults). The deprivation of alcohol does not
prevent the observer from witnessing nude or semi-nude
dancing, or the dancer from conveying an erotic message.
Perhaps a sober patron will find the performance less
tantalizing, and the dancer might therefore feel less appreci-
ated (not necessarily from the reduction in ogling and cat
calls, but certainly from any decrease in the amount of tips
she might otherwise receive). And we do not doubt Ben’s
Bar’s assertion that its profit margin will suffer if it is unable
to serve alcohol to its patrons. But the First Amendment
rights of each are not offended when the show goes on
without liquor.
III.
For the reasons expressed in this opinion, Section 5(b)’s
prohibition of alcohol on the premises of adult entertain-
ment establishments does not violate the First Amend-
ment. We, therefore, affirm the district court’s decision
granting the Village’s motion for summary judgment.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-17-03