American Entertainers, L.L.C. v. City of Rocky Mount, NC

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 17-1577
AMERICAN ENTERTAINERS, L.L.C., a North Carolina limited liability
company, d/b/a Gentleman’s Playground,
Plaintiff – Appellant,
v.
CITY OF ROCKY MOUNT, NORTH CAROLINA,
Defendant – Appellee.
Appeal from the United States District Court for the Eastern District of North Carolina, at
Raleigh. James C. Dever III, Chief District Judge. (5:14-cv-00438-D)
Argued: January 24, 2018 Decided: April 27, 2018
Before AGEE, WYNN, and THACKER, Circuit Judges.
Affirmed in part and vacated and remanded in part by published opinion. Judge Wynn
wrote the opinion, in which Judge Agee joined. Judge Thacker wrote a concurring
opinion.
Gary Scott Edinger, BENJAMIN, AARONSON, EDINGER & PATANZO, PA,
Gainesville, Florida, for Appellant. James Nicholas Ellis, POYNER SPRUILL LLP,
Rocky Mount, North Carolina, for Appellee.
WYNN, Circuit Judge:
The City of Rocky Mount, North Carolina (“Rocky Mount”), regulates “sexually
oriented businesses” by requiring those businesses to obtain a license prior to operation.
Appellant American Entertainers, LLC (“American Entertainers”), an exotic dancing
venue, argues that the licensing regulation, in its entirety, violates the First Amendment
on overbreadth grounds because it potentially requires licensure of venues that display
“mainstream” performances such as ballets, concerts, and theatrical productions. In the
alternative, American Entertainers contends that one of the licensing regulation’s denial
provisions is an unconstitutional prior restraint because it vests “unbridled discretion” in
a governmental official to deny license applications and that another of the denial
provisions violates the Equal Protection Clause of the Fourteenth Amendment by barring
eighteen- to twenty-one-year-olds from owning “sexually oriented businesses.” The
district court rejected all three claims.
For the reasons that follow, we affirm the district court’s denial of American
Entertainers’ First Amendment overbreadth challenge and Equal Protection challenge.
We conclude, however, that the district court erred in rejecting American Entertainers’
prior restraint claim. By authorizing the police chief to deny a license if the chief
believes the applicant will fail to comply with “all applicable laws,” the challenged denial
provision is insufficiently “narrow, objective, and definite” to pass constitutional muster.
Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969). We therefore strike as
unconstitutional the relevant denial provision from the Ordinance and remand to the
2
district court to consider whether and to what extent the provision is severable from the
remainder of the Ordinance.
In sum, we affirm in part, vacate in part, and remand the case to the district court
for further proceedings consistent with this opinion.
I.
A.
Since 2002, American Entertainers has operated within Rocky Mount’s limits a
business known as “Gentleman’s Playground.” Gentleman’s Playground features exotic
dancers, whose scant attire has varied throughout its sixteen years of operation. Rocky
Mount and American Entertainers previously have had disputes regarding the revealing
nature of Gentleman’s Playground’s dancers’ attire, including a voluntarily dismissed
lawsuit back in 2003. Although years subsequently passed without incident, a 2014
police investigation regarding Gentleman’s Playground caused Rocky Mount to seek to
enforce against American Entertainers its sexually oriented business ordinance. Rocky
Mount, N.C., Code of Ordinances § 13-270 et seq. [hereinafter Ordinance].
The Ordinance constitutes Chapter 13, Article VII of Rocky Mount’s City Code,
and addresses “the regulatory licensing requirements for sexually oriented businesses
located within the city.” § 13-270(a). Rocky Mount enacted the Ordinance because
“[s]exually oriented businesses . . . are recognized as having serious objectionable
operational characteristics” and “[s]tudies and experiences in other municipalities have
shown that lower property values and increased crime rates tend to accompany and are
3
brought about by sexually oriented businesses.” Id. Accordingly, “[t]he city council
f[ou]nd[] that regulation . . . [wa]s necessary to insure that these adverse secondary
effects do not contribute to the blighting of surrounding neighborhoods and to regulate
acts, omissions or conditions detrimental to the health, safety or welfare and the peace
and dignity of the city.” Id. The Ordinance’s stated goal is to “balanc[e] . . . the
legitimate ends of the community,” and requires any sexually oriented business “to carry
its share of financing the administrative and enforcement activities.” § 13-270(b).
The Ordinance defines a sexually oriented business as, in pertinent part, “any . . .
adult cabaret . . . as defined in this article.” § 13-271 (emphasis added). An “adult
cabaret,” in turn, is defined as “any retail business or private club as defined in North
Carolina General Statutes § 18B-1000 which: (a) serves food or beverages, or permits the
consumption of food or beverages; and (b) regularly provides or has available for
viewing by its patrons or members adult live entertainment.” Id. (emphasis added). The
term “adult live entertainment” means “any performance of or involving the actual
presence of real people which exhibits specified sexual activities or specified anatomical
areas, as defined in this article.” Id. (emphasis added). The Ordinance defines “specified
sexual activities” as, in relevant part, the “[f]ondling or other erotic touching of human
genitals, pubic regions, buttocks or female breasts.” Id.
Additionally, the Ordinance contains six license-denial provisions. § 13-273(d).
The two provisions at issue in this appeal permit Rocky Mount’s police chief to deny a
license if either (1) “the operation [of the sexually oriented business], as proposed by the
applicant, if permitted, would not comply with all applicable laws, including, but not
4
limited to, the city’s building, zoning, and health regulations;” or (2) any license
applicants or other specified business principals are “not over the age of twenty-one . . .
years.” § 13-273(d)(2), (d)(6).
B.
Rocky Mount sought to enforce the Ordinance against American Entertainers after
police investigators learned that dancers at Gentleman’s Playground were providing
“adult live entertainment” within the meaning of the Ordinance. In response, American
Entertainers filed a Complaint in the Eastern District of North Carolina challenging,
among other things, the application and constitutionality of the Ordinance under the First
Amendment and the Equal Protection Clause.
After the close of discovery, the parties filed cross-motions for summary
judgment. The district court granted in part and denied in part the motions, resolving in
Rocky Mount’s favor American Entertainers’ constitutional claims. American
Entertainers timely filed a motion for rehearing, which the district court denied.
American Entertainers timely appealed three constitutional determinations to this Court.
II.
American Entertainers asserts three arguments on appeal, that the Ordinance: (A)
is unconstitutionally overbroad; (B) imposes an unconstitutional prior restraint by
granting Rocky Mount’s police chief unfettered discretion to deny a permit; and (C)
violates the First Amendment and Equal Protection Clause by prohibiting from being
owners, officers, or directors of a sexually oriented business individuals between eighteen
5
and twenty-one years of age. Because this appeal arises from a district court’s grant of
summary judgment, we review each issue de novo. Askew v. HRFC, LLC, 810 F.3d 263,
266 (4th Cir. 2016).
A.
American Entertainers first argues that the Ordinance is unconstitutionally
overbroad under the First Amendment because the Ordinance defines “sexually oriented
business”—and “adult cabaret,” in particular—in terms “not limited to nude
entertainment . . . no[r] limited to alcoholic beverage establishments.” Appellant’s Br. 8.
Therefore, the specific conduct encompassed by the definition of “specified sexual
activities” “reach[es] conventional, mainstream arts and entertainment.” Id.
1.
Before considering these arguments, we first must address Rocky Mount’s two
threshold objections to American Entertainers’ overbreadth claim: that American
Entertainers lacks standing to assert a facial overbreadth challenge and that American
Entertainers’ overbreadth arguments are not properly before this Court.
Rocky Mount urges that American Entertainers lacks standing to assert a facial
overbreadth challenge because Gentleman’s Playground undisputedly falls within the
relevant Ordinance definitions. However, this conflates the law of vagueness challenges,
see, e.g., Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 59–61 (1976) (declining to
adjudicate vagueness challenge of “hypothetical . . . persons not before the Court”), with
the law regarding overbreadth challenges, see, e.g., Giovani Carandola, Ltd. v. Bason
(“Carandola I”), 303 F.3d 507, 512 (4th Cir. 2002) (“Pursuant to [the overbreadth
6
doctrine], an individual may ‘challenge a statute on its face because it also threatens
others not before the court.’” (quoting Bd. of Airport Comm’rs v. Jews for Jesus, Inc.,
482 U.S. 569, 574 (1987))). The overbreadth doctrine permits those whose “conduct . . .
is clearly unprotected and could be proscribed by a law drawn with the requisite
specificity” to nevertheless challenge the constitutionality of a law’s applicable scope.
E.g., New York v. Ferber, 458 U.S. 747, 769 (1982); Brockett v. Spokane Arcades, Inc.,
472 U.S. 491, 503–04 (1985). Such challenges are justified by the concern that “persons
whose expression is constitutionally protected may well refrain from exercising their
rights for fear of criminal sanctions by a statute susceptible of application to protected
expression.” Ferber, 458 U.S. at 768 (quoting Gooding v. Wilson, 405 U.S. 518, 521
(1972)). Accordingly, that Gentleman’s Playground likely falls within the Ordinance’s
constitutional scope does not bar American Entertainers’ overbreadth challenge.
Next, Rocky Mount argues that American Entertainers forfeited its right to
challenge several provisions of the Ordinance as overly broad because American
Entertainers’ Complaint only expressly challenged as overbroad the definition of
“specified sexual activities.” American Entertainers’ Complaint, however, alleged that
“all of [Rocky Mount]’s regulations governing sexually oriented businesses are
unconstitutional on their face,” J.A. 11 (emphasis added), described the interlocking
nature of the Ordinance definitions at issue in this appeal, and targeted the most-
specifically defined term: “specified sexual activities.” J.A. 42–43. Although this places
primary focus on the definition of “specified sexual activities,” it does so of necessity.
The definition of “specified sexual activities” provides required meaning to each
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Ordinance section here at issue and listed in the Complaint. Further, the definition does
not exist in a vacuum—it necessarily must be read within the surrounding context of the
Ordinance. See Parker v. Levy, 417 U.S. 733, 760 (1974) (“[F]acial invalidation is
inappropriate if the ‘remainder of the statute . . . covers a whole range of easily
identifiable and constitutionally proscribable . . . conduct.’” (alterations in original)
(emphasis added) (quoting U.S. Civil Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, 413
U.S. 548, 580–81 (1973))). And, at bottom, American Entertainers’ overarching claim is
that this most-specific term sweeps in too much protected expression given its
surrounding context. See, e.g., Broadrick v. Oklahoma, 413 U.S. 601, 611, 613 (1973)
(explaining that an overbreadth finding necessarily entails the determination that a statute
as a whole is not “narrowly drawn” and therefore renders “any enforcement of a statute
thus placed at issue . . . totally forbidden”).
In sum, our analysis must consider the regulatory context surrounding the
definition of “sexually oriented business,” see id. at 615 (“[T]he overbreadth of a statute
must . . . be . . . judged in relation to the statute’s plainly legitimate sweep.”), and
American Entertainers’ Complaint put Rocky Mount on notice of both American
Entertainers’ overbreadth claim and the relevant contextual statutory sections.
2.
Having rejected Rocky Mount’s threshold arguments, we now address the merits
of American Entertainers’ overbreadth claim. In addressing that claim, we must keep in
mind that “a law should not be invalidated for overbreadth unless it reaches a substantial
number of impermissible applications.” Ferber, 458 U.S. at 771. This is because “[i]f an
8
overbreadth challenge succeeds, ‘any enforcement’ of the regulation at issue is ‘totally
forbidden.’” Carandola I, 303 F.3d 507, 512 (4th Cir. 2002) (quoting Broadrick, 413
U.S. at 613). Accordingly, an overbreadth challenge may only succeed if the challenged
“regulation’s overbreadth is ‘not only . . . real, but substantial as well, judged in relation
to the [challenged regulation’s] plainly legitimate sweep,’ and also that no ‘limiting
construction’ or ‘partial invalidation’ could ‘remove the seeming threat or deterrence to
constitutionally protected expression.’” Id. (alterations in original) (quoting Broadrick,
413 U.S. at 613, 615). Declaring a statute unconstitutionally overbroad “is, manifestly,
strong medicine,” and should be “employed . . . sparingly and only as a last resort.”
Broadrick, 413 U.S. at 613.
“The level of First Amendment scrutiny a court applies to determine the ‘plainly
legitimate sweep’ of a regulation depends on the purpose for which the regulation was
adopted.” Carandola I, 303 F.3d at 512. “If . . . the regulation was adopted for a purpose
unrelated to the suppression of expression—e.g., to regulate conduct, or the time, place,
and manner in which expression may take place—a court must apply . . . intermediate
scrutiny.” Id. at 512–13.
American Entertainers does not dispute that Rocky Mount adopted the Ordinance
to regulate the deleterious secondary effects of adult entertainment and therefore enacted
the regulation for a purpose unrelated to the suppression of expression. Accordingly,
intermediate scrutiny applies. See, e.g., City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 48 (1986) (“The ordinance by its terms is designed to prevent crime, protect the
city’s retail trade, maintain property values, and generally ‘protec[t] and preserv[e] the
9
quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,’
not to suppress the expression of unpopular views.” (alterations in original)).
Under intermediate scrutiny, we will uphold a regulation that has the potential to
burden speech if “it furthers an important or substantial governmental interest; if the
governmental interest is unrelated to the suppression of free expression; and if the
incidental restriction on alleged First Amendment freedoms is no greater than is essential
to the furtherance of that interest.” Satellite Broad. & Commc’ns Ass’n v. F.C.C., 275
F.3d 337, 355 (4th Cir. 2001) (quoting United States v. O’Brien, 391 U.S. 367, 377
(1968)); see also Carandola I, 303 F.3d at 515 (applying intermediate scrutiny in
challenge to statute restricting exotic dancing in businesses licensed to serve alcohol). In
applying intermediate scrutiny, this Court engages in a two-part analysis. “First, we must
determine whether the regulation materially advances an important or substantial interest
by redressing past harms or preventing future ones.” Satellite Broad., 275 F.3d at 356.
Second, “[i]f the regulation materially advances some important or substantial interest,
we then . . . ask whether the regulation is narrowly tailored to serve that interest.” Id.
The district court concluded—and we agree—that Rocky Mount “has a substantial
interest in regulating exotic dancing because such entertainment has ‘a long history of
spawning deleterious effects.’” Am. Entertainers, L.L.C. v. City of Rocky Mount, No.
5:14-cv-438-D, 2016 WL 4728077, at *11 (E.D.N.C. Sept. 8, 2016) (quoting Steakhouse,
Inc. v. City of Raleigh, 166 F.3d 634, 637 (4th Cir. 1999)). The Ordinance expressly
references such deleterious effects, citing evidence from “other municipalities [that] ha[s]
shown that lower property values and increased crime rates tend to accompany and are
10
brought about by sexually oriented businesses.” § 13-270(a). Significantly, the Supreme
Court has accepted such evidence as justifying regulation of both adult motion picture
theaters, Renton, 475 U.S. at 51–52, and concentrations of “adult establishments” more
generally, City of L.A. v. Alameda Books, Inc., 535 U.S. 425, 430 (2002) (plurality op.);
see id. at 449–52 (Kennedy, J., concurring).
We further conclude that the licensing provisions materially advance that
substantial interest. In particular, the Ordinance subjects sexually oriented businesses to
a licensing fee to make such businesses “carry [their] share of financing the
administrative and enforcement activities” associated with minimizing and ameliorating
the deleterious secondary effects flowing from sexually oriented businesses. § 13-270(b).
Courts have recognized that “an ordinance requiring a person to pay a license or permit
fee before he can engage in a constitutionally protected activity does not violate the
Constitution so long as the purpose of charging the fee is limited to defraying expenses
incurred in furtherance of a legitimate state activity.” E.g., Deja Vu of Nashville, Inc. v.
Metro. Gov’t of Nashville & Davidson Cty., 274 F.3d 377, 395 (6th Cir. 2001) (quoting
Ne. Ohio Coal. for the Homeless v. City of Cleveland, 105 F.3d 1107, 1108 (6th Cir.
1997)); see also Kev, Inc. v. Kitsap Cty., 793 F.2d 1053, 1060 (9th Cir. 1986) (concluding
that municipal ordinance requiring licensure of “erotic dancers and erotic dance studios”
served valid governmental purpose because it allowed municipality to “allocate law
enforcement resources to ensure compliance with the ordinance”). The $100 fee per
sexually oriented business that the Ordinance imposes, § 13-278, helps to subsidize the
increased safety-enforcement costs that experience demonstrates sexually oriented
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businesses require. See Kev, Inc., 793 F.2d at 1059 (“[T]he County presented evidence
that drug dealing, prostitution, and other social ills accompany topless dancing
establishments.”); J.A. 291 (police report detailing alleged “assault [of a] female adult
entertainer” and corresponding “shooting with injury” due to argument regarding a
“private dance” for a customer at Gentleman’s Playground), 331–33 (police chief
explaining that nightclubs generally attract more crime, including “over-intoxication of
patrons” and “disturbance[-]type calls”).
Additionally, in view of these recognized deleterious secondary effects, the
Ordinance precludes the licensing of a sexually oriented business when individuals who
are intimately tied to that business “have been convicted” of various criminal offenses.
§ 13-273(d)(3). Such offenses include crimes of “force and violence [used] upon . . .
another,” of “sexual misconduct,” or “involving narcotics, dangerous drugs or dangerous
weapons that amount[] to a felony.” Id. Each of these offense categories implicates the
deleterious secondary effects the Ordinance seeks to deter through regulation. See, e.g.,
Renton, 475 U.S. at 48 (1986) (“The ordinance by its terms is designed to prevent crime
. . . and generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods,
commercial districts, and the quality of urban life.’” (second, third, and fourth alteration
in original)); Ordinance § 13-270(a) (“[R]egulation . . . is necessary to . . . [preserve] the
health, safety [and] welfare and the peace and dignity of the city.”). In sum, the licensing
requirement materially advances a substantial governmental interest.
We next must determine whether the Ordinance’s licensing provision is
sufficiently narrowly tailored to satisfy intermediate scrutiny. The narrow-tailoring
12
requirement “is met ‘so long as the regulation promotes a substantial government interest
that would be achieved less effectively absent the regulation.’” Satellite Broad., 275 F.3d
at 356 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)). Put
differently, a regulation satisfies the narrow-tailoring requirement if it does not “burden
substantially more speech than is necessary to further the government’s legitimate
interests.” Id. (quoting Ward, 491 U.S. at 799). Importantly, “[s]o long as the means
chosen are not substantially broader than necessary to achieve the government’s interest,
. . . the regulation will not be invalid simply because a court concludes that the
government’s interest could be adequately served by some less-speech-restrictive
alternative.” Ward, 491 U.S. at 799.
In assessing whether the licensing requirement “burden[s] substantially more
speech than is necessary,” Satellite Broad., 275 F.3d at 356 (internal quotation mark
omitted), we note at the outset that American Entertainers’ overbreadth challenge to
Rocky Mount’s sexually oriented business licensing requirement differs from run-of-the-
mill overbreadth challenges involving a sexually oriented business regulation. Typically,
such cases challenge a statute or ordinance—or an enforcement action under such a
statute or ordinance—that, (1) under the statute’s definitions, potentially sweeps in
“mainstream” performances, like ballets or plays, and (2) flatly bans or otherwise restricts
such speech. For example, many such cases involve regulations that bar a sexually
oriented business from operating in certain areas. See, e.g., Renton, 475 U.S. at 43
(addressing zoning provision that “prohibit[ed] adult motion picture theaters from
locating within 1,000 feet of [various] zone[s]”); Alameda Books, 535 U.S. at 429
13
(addressing challenge to zoning provisions that “prohibit[ed] the establishment or
maintenance of more than one adult entertainment business in the same building”
(internal quotation marks omitted)). Other cases involve statutes or ordinances that ban
nudity or sexual conduct or displays at certain kinds of businesses. Carandola I, 303
F.3d at 510–11 (addressing challenge to “state restrictions on nudity and other conduct,”
violations of which resulted in a penalty of “either a 30[-]day suspension of [alcoholic
beverage] permits or a 15-day suspension and a $3,000 fine”); Legend Night Club v.
Miller, 637 F.3d 291, 294–95 (4th Cir. 2011) (addressing alcoholic beverage legislation
that “limit[ed] the range of permissible conduct, attire, and entertainment at
establishments licensed to serve alcoholic beverages” that, “if enforced, would prohibit
[businesses] from providing both alcoholic beverages and adult entertainment”). By
prohibiting imprecise categories of speech, the regulations in such cases involve a
potentially substantial burden on non-sexual speech and therefore “burden substantially
more speech than is necessary to further the government’s legitimate interests” in
regulating the secondary effects of sexually oriented business. Satellite Broad., 275 F.3d
at 356 (quoting Ward, 491 U.S. at 799).
By contrast, American Entertainers’ overbreadth challenge focuses on a licensing
requirement, not a ban on speech. 1 To be sure, a licensing requirement could have the
1
Below, American Entertainers challenged several other aspects of the
Ordinance—a prohibition on touching between “adult entertainers” and patrons and a
prohibition on providing “adult live entertainment” to only one customer—as well as an
aspect of Rocky Mount’s zoning ordinance that required 500 feet of space between
(Continued)
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effect of impermissibly chilling protected First Amendment activity. For example, if a
state or municipality’s licensing regime swept in mainstream performances and imposed
a substantial fee on licensees, required a substantial waiting period before an applicant
could obtain a license, or lacked a meaningful mechanism for an applicant to challenge
an adverse licensing decision, the licensing requirement could unduly burden protected
speech. See, e.g., FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226–28 (1990) (opinion
of O’Connor, J.) (explaining that licensing schemes constitutionally must provide
“[]adequate procedural safeguards”); Freedman v. Maryland, 380 U.S. 51, 57 (1965)
(explaining same, and specifically discussing judicial review).
But American Entertainers’ overbreadth challenge does not focus on any particular
burden attributable to Rocky Mount’s licensing requirement for sexually oriented
businesses. American Entertainers does not assert, for example, that the licensing
requirement imposes an unconstitutional burden on the speech rights of “sexually
oriented businesses” because the fee is too high, because obtaining the license is too
administratively onerous, because it takes too long to obtain a license, or because there is
no adequate judicial mechanism for timely reviewing a denial of an application for a
license.
Rather, American Entertainers’ overbreadth challenge appears to rest solely on the
claim that subjecting some businesses to a licensing requirement—but not others—
discrete adult establishments. In this Court, American Entertainers challenges only the
licensing requirement.
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violates the First Amendment, at least when some of the businesses subject to the
licensing requirement might provide a venue for performances that are not “specifically
sexual in nature” or involve “traditional theater and other artistic presentations which
may incorporate an erotic component.” Appellant’s Br. 17; see Oral Argument: Am.
Entertainers, L.L.C. v. City of Rocky Mount, NC, 10:09–25 (Jan. 24, 2018) (“Q: So then
are we only concerned just about the burden that’s imposed by requiring this operational
license? A: Yes, with a little explanation: My client is most concerned about the
licensing features and the regulations on conduct.”),
http://coop.ca4.uscourts.gov/OAarchive/mp3/17-1577-20180124.mp3. To that end,
American Entertainers asks this Court to closely parse the text of the Ordinance to
determine whether venues that put on ballets, concerts, or theatrical productions—
performances that might involve “fondling or other erotic touching”—would be subjected
to the licensing requirement. Appellant’s Br. 12–17. We decline that invitation.
American Entertainers’ myopic focus on the Ordinance’s definition of “sexually
oriented business” misses the dispositive question: does the Ordinance’s licensure
requirement impose any substantial burden on First Amendment interests, such that the
licensure is not narrowly tailored to serve the government’s substantial interest in
regulating the deleterious secondary effects of sexually oriented businesses? Answering
that question, we conclude that regardless of whether the language of the Ordinance in
fact sweeps in venues that display mainstream performances, the licensing requirement
does not significantly burden the speech of either exotic-dancing establishments—like
American Entertainers’—or venues that display mainstream performances that may
16
involve “erotic touching”—like ballets, concerts, or theatrical productions—and therefore
does not run afoul of the First Amendment.
“It is well established that the government may, under its police power, require
licensing of various activities involving conduct protected by the [F]irst [A]mendment.”
Kev, Inc., 793 F.2d at 1059 (collecting cases); see also Niemotko v. Maryland, 340 U.S.
268, 280 (1951) (Frankfurter, J., concurring) (“[I]t [is] clear that the United States
Constitution does not deny localities the power to devise a licensing system if the
exercise of discretion by the licensing officials is appropriately confined.”); New York ex
rel. Lieberman v. Van De Carr, 199 U.S. 552, 560 (1905) (“That this court will not
interfere because the states have seen fit to give administrative discretion to local boards
to grant or withhold licenses or permits to carry on trades or occupations, or perform acts
which are properly the subject of regulation in the exercise of the reserved power of the
states to protect the health and safety of its people, there can be no doubt.”). In light of
the states’ and municipalities’ longstanding authority to license activities within their
borders, a licensing requirement must further impede First Amendment interests in order
to raise expression-related constitutional concerns, such as when the “licensing
requirement . . . inhibits the ability or the inclination to engage in . . . protected
expression.” Kev, Inc., 793 F.2d at 1060.
Here, American Entertainers makes no allegation that the license “would be
difficult to obtain or would for some other reason discourage . . . a prospective operator
from exhibiting dancing.” Id. at 1060. Because there is no evidence that the licensing
requirement, by itself, imposes any significant burden on speech, we certainly cannot
17
conclude that the Ordinance “burden[s] substantially more speech than is necessary to
further the government’s legitimate interests.” Satellite Broad., 275 F.3d at 356 (quoting
Ward, 491 U.S. at 799). Accordingly, it is within Rocky Mount’s police powers to
require licensure of “sexually oriented businesses,” however it chooses to define that
term. That Rocky Mount may have been able to define “sexually oriented businesses” in
a manner that more clearly excludes mainstream performances like ballets, concerts, and
theatrical productions does not impact this conclusion: the narrow-tailoring requirement
does not demand the government choose the most closely tailored regulation, see Ward,
491 U.S. at 799, particularly when, as here, the challenged statute or ordinance does not
meaningfully burden speech.
Given that (1) the licensing requirement materially advances a substantial
governmental interest and (2) American Entertainers identifies no burden imposed by the
licensing requirement, we conclude that the licensing requirement is narrowly tailored to
serve Rocky Mount’s legitimate interest and therefore reject American Entertainers’
overbreadth challenge. 2
2
Viewed within the appropriate constitutional framework, American Entertainers’
argument perhaps best sounds as a vagueness challenge—that the Ordinance’s definition
of “adult cabaret” fails to give businesses “fair notice” as to what conduct triggers the
licensing requirement. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972).
But, as American Entertainers recognizes, it may not bring such a challenge as a third-
party who clearly falls within the Ordinance’s ambit. See Young, 427 U.S. at 60–61.
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B.
American Entertainers next argues that one of the Ordinance’s six license-denial
provisions, subsection (2)—which allows Rocky Mount’s police chief to deny a permit if
he determines that the proposed business would not comply with “all applicable laws,”
§ 13-273(d)(2)—is an unconstitutional prior restraint because it “fail[s] to constrain . . .
review to building codes or other health and safety laws [and therefore] allows a permit
to be denied for trivial or invented reasons at the discretion of the official.” Appellant’s
Br. 8. Although mindful that Rocky Mount has a valid interest in ensuring compliance
with all laws, we agree with American Entertainers that the denial provision vests
impermissible discretion in the police chief to choose on a case-by-case basis which laws
apply in reviewing a particular application and thus is too broad to survive constitutional
scrutiny.
Licensing schemes preclude expression until certain requirements are met, and
therefore are prior restraints. See FW/PBS, Inc., 493 U.S. at 223 (opinion of O’Connor,
J., joined by Stevens & Kennedy, JJ.) (“We granted certiorari on the issue whether the
[sexually oriented business] licensing scheme is an unconstitutional prior restraint that
fails to provide adequate procedural safeguards as required.”); id. at 240 (Brennan, J.,
concurring, joined by Marshall & Blackmun, JJ.) (impliedly conducting prior restraint
analysis and therefore arguing that the government should “bear the burden of going to
court and proving its case before it may permissibly deny licenses to First Amendment-
protected businesses” (emphasis added)); Se. Promotions, Ltd. v. Conrad, 420 U.S. 546,
19
553 (1975) (explaining that prior restraints “g[i]ve public officials the power to deny use
of a forum in advance of actual expression”).
There are “two evils that will not be tolerated in [licensing] schemes[:]” either (1)
placing “‘unbridled discretion in the hands of a government official or agency,” thus
potentially “result[ing] in censorship,’” or (2) “fail[ing] to place limits on the time within
which the decisionmaker must issue the license.” FW/PBS, Inc., 493 U.S. at 225–26
(opinion of O’Connor, J.) (quoting City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 750, 757 (1988)). The present case implicates only the former concern. A licensing
scheme confers too much discretion on a governmental decisionmaker when it allows the
decisionmaker to deny an application based solely on the decisionmaker’s “own ideas of
‘public welfare, peace, safety, health, decency, good order, morals or convenience.’”
Shuttlesworth, 394 U.S. at 150 (quoting relevant ordinance). By contrast, a licensing
scheme is valid when “concrete standards . . . guide the decision-maker’s discretion,”
such as limits placed “by textual incorporation, binding judicial or administrative
construction, or well-established practice.” City of Lakewood, 486 U.S. at 770–71. To
survive constitutional scrutiny, a licensing regulation must therefore provide “narrow,
objective, and definite standards to guide the licensing authority.” Shuttlesworth, 394
U.S. at 151.
In the present case, Rocky Mount argues that the police chief’s licensing
determinations are objective ones, drawn exclusively from an applicant’s business
proposal and the letter of the law. However, this overlooks the plain language of the
license-denial provision at issue, which by its terms extends the police chief’s inquiry to
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the entire body of municipal, state, federal, and common law. 3 The denial-provision
exemplars—Rocky Mount’s “building, zoning, and health regulations”—provide
meaningful reference points. Ordinance § 13-273(d)(2). The police chief can easily and
objectively determine whether an applicant’s “[s]ervice equipment [will be] . . . located in
any attic, clothes closet, kitchen storage cabinet, bathroom, toilet room, bedroom, coal or
trash bin.” § 5-109(b)(1). Or whether an applicant’s proposed business location
complies with Rocky Mount’s zoning restrictions. See generally Ordinance app. A
(“Land Development Code”). But many other laws that may apply to sexually oriented
businesses do not have such straightforward analyses. For example, each applicant must
include in her application “[t]he name of the sexually oriented business.” § 13-273(a)(2).
If that name creates a likelihood of confusion with another entity’s valid and protectable
trademark, then the applicant violates the Lanham Act’s provisions regarding trademark
infringement. George & Co. LLC v. Imagination Entm’t Ltd., 575 F.3d 383, 393 (4th Cir.
2009); see 15 U.S.C. § 1114(1). However, such an infringement determination can only
be made after performing sophisticated analysis of a nine-factor test, the prongs of which
almost all turn on evidence not contained within a licensing application. Imagination
Entm’t, 575 F.3d at 393 (articulating factors such as “the similarity of advertising used by
the markholders” and “the strength or distinctiveness of the plaintiff’s mark as actually
3
At oral argument, Rocky Mount confirmed that the Ordinance means “all laws”
in the broadest sense possible. Rocky Mount explained that “[a]s soon as we start
enumerating laws, what’s going to happen? We’re going to leave out one.” Oral
Argument: Am. Entertainers, L.L.C. v. City of Rocky Mount, NC, 29:13–18 (Jan. 24,
2018), http://coop.ca4.uscourts.gov/OAarchive/mp3/17-1577-20180124.mp3.
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used in the marketplace,” and conducting eleven paragraphs of analysis regarding the
latter).
Further, it is unrealistic to expect the police chief to consider the entire body of
multiple jurisdictions’ law within the Ordinance’s fifteen-day time limit. Ordinance §
13-273(e). This subverts the core of Shuttleworth’s command that licensing standards be
“narrow, objective, and definite,” 394 U.S. at 151, in order to guard against “decision[s]
to issue or refuse” licenses turning on “appraisal of facts, the exercise of judgment, and
the formation of an opinion.” Se. Promotions, Ltd., 420 U.S. at 554. Of necessity, the
police chief must narrow the scope of his legal inquiry in order to comply with the
fifteen-day deadline. But there is no statutory guarantee that the police chief will
uniformly narrow the scope of his legal inquiry across all applications. “Accompanying
such discretion is the opportunity to discriminate against a licensee on the basis of what
the licensee intends to say, which . . . raises the spectre of prior restraint.” Miami Herald
Publ’g Co. v. City of Hallandale, 734 F.2d 666, 675 (11th Cir. 1984); Lady J. Lingerie,
Inc. v. City of Jacksonville, 176 F.3d 1358, 1362 (11th Cir. 1999) (“[T]he cases show that
virtually any amount of discretion beyond the merely ministerial is suspect.”).
In sum, the relevant license-denial provision sweeps too broadly by requiring the
police chief to choose on a case-by-case basis which particular laws to consider in
evaluating applications. And even if the police chief somehow each time considered
every law across all relevant jurisdictions, the sophisticated analysis inherent in various
laws’ application would require the police chief to exercise a constitutionally
impermissible amount of discretion in evaluating applications. The provision therefore
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violates each of Shuttleworth’s commands by rendering the police chief’s evaluation
neither “narrow, [nor] objective, [nor] definite,” 394 U.S. at 151, and cannot overcome
the “heavy presumption against its constitutional validity.” FW/PBS, Inc., 493 U.S. at
225 (opinion of O’Connor, J.).
Given our conclusion that the license-denial provision is an unconstitutional prior
restraint, American further urges that the Ordinance as a whole must fall because the
provision is not severable from the remainder of the Ordinance. However, the district
court did not have an opportunity to address this issue in the first instance, and we
therefore decline to do so now. See Chesapeake B & M, Inc. v. Harford Cty., Md., 58
F.3d 1005, 1012 (4th Cir. 1995) (“Because the Licensing Law contains a severability
clause, we remand to the district court to determine whether and to what extent the
licensing scheme is severable from the remainder of the Licensing Law.”); Whittle v.
Timesavers, Inc., 749 F.2d 1103, 1106 (4th Cir. 1984) (“[B]ecause the district court’s
opinion did not . . . discuss this issue, we . . . remand the case for further proceedings.”).
Accordingly, we strike as unconstitutional section 13-273(d)(2) of the Ordinance
and remand to the district court to determine whether and to what extent section 13-
273(d)(2) is severable from the remainder of the Ordinance.
C.
American Entertainers’ final argument is that subsection (6) of the Ordinance’s
permit-denial provisions—which applies when any business applicants or other specified
business principals are under twenty-one years old—“infringes upon equal protection and
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the First Amendment rights of adult citizens to free expression.” Appellant’s Br. 44;
Ordinance § 13-273(d)(6). We disagree.
As American Entertainers recognizes, “age is not a suspect classification under the
Equal Protection Clause.” Gregory v. Ashcroft, 501 U.S. 452, 470 (1991). Accordingly,
rational-basis review applies unless the First Amendment dictates a higher standard. Id.
American Entertainers admits “there is a dearth of published cases considering the exact
question of whether adults over the age of eighteen but younger than twenty-one have a
First Amendment right to apply for a [Sexually Oriented Business] license.” Appellant’s
Br. 55. Nonetheless, American Entertainers urges that “there appears to be no principled
reason why the First Amendment would not extend” to the purported right of those under
twenty-one years old “to own, manage and operate an adult business.” Id. at 59.
In attempting to ratchet up the level of constitutional review, American
Entertainers analogizes to cases involving either the direct “disseminator” of a specific
First-Amendment-protected communication, such as a movie theater or promoter seeking
to present a theatrical production at a municipal facility, e.g., Se. Promotions, Ltd., 420
U.S. at 554 (“The board was empowered to determine whether the [promoter] should be
granted permission—in effect, a license or permit—on the basis of its review of the
content of the proposed production.”), or a “patron” of or “performer” at an adult
business, e.g., Essence, Inc. v. City of Fed. Heights, 285 F.3d 1272, 1283 (10th Cir. 2002)
(striking down law prohibiting “anyone under the age of twenty-one from being on the
premises of a business offering live nude dancing,” including both patrons and dancers).
However, seeking to display, perform, or patronize a particular art performance or piece
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is not equivalent to owning a business that offers for consumption some expressive
activity. The constitutional principles implicated by general business licensing schemes
are instead those involving pure economic regulation and states’ inherent police powers,
areas in which government enjoys great regulatory latitude. See, e.g., Lochner v. New
York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting) (“It is settled by various decisions
of this court that state constitutions and state laws may regulate life in many ways which
we as legislators might think as injudicious, or if you like as tyrannical, as this, and
which, equally with this, interfere with the liberty to contract.”), abrogated by W. Coast
Hotel Co. v. Parrish, 300 U.S. 379 (1937); Nebbia v. New York, 291 U.S. 502, 527–28
(1934) (“The Constitution does not guarantee the unrestricted privilege to engage in a
business or to conduct it as one pleases.”); Powers v. Harris, 379 F.3d 1208, 1211, 1215
(10th Cir. 2004) (explaining that state regulation “limit[ing] the sale of caskets to licensed
funeral directors” warranted rational-basis review “[a]s a state economic regulation that
does not affect a fundamental right and categorizes people on the basis of a non-suspect
classification”).
Accordingly, we decline to recognize a First Amendment right for eighteen- to
twenty-one year olds to own an adult business. Instead, the Ordinance’s age-restriction
provision warrants rational-basis review. Applying that standard, we conclude that the
Ordinance’s age restriction is rationally related to Rocky Mount’s interest in ensuring that
sexually-oriented-business owners are of legal drinking age, given alcohol’s availability
at most such venues. Cf. Williamson v. Lee Optical of Okla. Inc., 348 U.S. 483, 488
(1955) (“The day is gone when this Court uses the Due Process Clause of the Fourteenth
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Amendment to strike down state laws, regulatory of business . . . conditions, because they
may be unwise, improvident, or out of harmony with a particular school of thought.”).
We therefore reject American Entertainers’ challenges to Ordinance section 13-273(d)(6).
III.
In sum, we affirm the district court’s award of judgment in favor of Rocky Mount
regarding American Entertainers’ overbreadth and age-restriction challenges. However,
we vacate and remand for entry of judgment in favor of American Entertainers as to the
district court’s determination that section 13-273(d)(2) of the Ordinance does not
constitute an unconstitutional prior restraint. On remand, the district court should further
consider whether and to what extent section 13-273(d)(2) is severable from the remainder
of the Ordinance. Accordingly, the judgment of the district court is
AFFIRMED IN PART AND VACATED AND REMANDED IN PART.
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THACKER, Circuit Judge, concurring:
I concur in Judge Wynn’s opinion in this case. However, I write separately to
address my colleagues’ perplexing suggestion that the Ordinance’s use of the phrase
“fondling or erotic touching” may render the Ordinance applicable to nonsexual touching
in mainstream artistic performances. See ante at 16–18.
We have previously held that the word “fondling,” as used in a North Carolina
statute prohibiting “fondling of the breasts, buttocks, anus, vulva, or genitals,” has a
particular meaning in the context of a law regulating sexually oriented businesses:
“manipulation of specified erogenous zones.” Giovani Carandola, Ltd. v. Fox, 470 F.3d
1074, 1080–81, 1084 (4th Cir. 2006). That construction applies with equal force to the
Ordinance here, since its purpose is also to regulate adult entertainment.
Further, in arguing that the word “touching” is overbroad, American Entertainers
reads the word “erotic” out of the Ordinance entirely. The word “erotic” amplifies the
meaning of the word “touching” in the Ordinance. Mere “touching” and “erotic
touching” are not the same thing. “Erotic” means something. Specifically, it means “of,
devoted to, or tending to arouse sexual love or desire.” Erotic, Webster’s Third New
International Dictionary (2002). An action is “erotic” if it “tend[s] to incite sexual
pleasure or desire” or is “directed toward sexual gratification.” Id. “Erotic touching”
might also be described as touching that is “lascivious,” “lustful,” “prurient,” or “vulgar”
-- the opposite of touching that is “decent,” “polite,” or “innocuous.” See Erotic,
Merriam-Webster, http://www.merriam-webster.com/thesaurus/erotic (last visited Apr. 4,
2018).
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Quite simply, “erotic touching,” like “fondling,” has a sexual connotation that is
plainly not present in mainstream artistic performances. Dancers performing a lift during
a ballet surely do not intend for their touching to incite sexual arousal in the manner
contemplated by the Ordinance. The same is true for athletic endeavors such as
wrestling, where participants often come into contact with intimate body parts. Indeed, if
“erotic touching” includes as broad a description as American Entertainers ascribes to it,
the sports world is in trouble. Given such an extensive reading, a sports arena may well
be considered a sexually oriented business, considering, for example, players’ frequent
celebratory slaps on the buttocks.
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