Foxxxy Ladyz Adult World Incop v. Village of Dix, Illinois

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-1642
FOXXXY LADYZ ADULT WORLD, INC.,
and DIRT CHEAP, INC.,
Plaintiffs-Appellants,
v.
VILLAGE OF DIX, ILLINOIS,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:13-cv-00482 — Michael J. Reagan, Chief Judge.
____________________
ARGUED DECEMBER 11, 2014 — DECIDED MARCH 10, 2015
____________________
Before WOOD, Chief Judge, and FLAUM and MANION, Cir-
cuit Judges.
FLAUM, Circuit Judge. Plaintiffs, owners of an adult enter-
tainment establishment that features nude dancing and
permits customers to bring their own alcoholic beverages
onto the premises, challenge the enactment of three local or-
dinances that ban public nudity, open containers of alcohol
in public, and the possession of liquor in public accommoda-
2 No. 14-1642
tions. Plaintiffs argue that the public nudity ban violates the
free speech protections of the First Amendment, and further
allege that the Village of Dix lacks statutory authority to pass
the challenged alcohol restrictions. Dix filed a motion to
dismiss the complaint for failure to state a claim, which the
district court granted as to both issues. Because we conclude
that, at this early stage of the litigation, Dix has not estab-
lished the necessary evidentiary basis for its assertion that
nude dancing causes adverse secondary effects to the health,
welfare, and safety of its citizens, we reverse the district
court’s judgment with respect to the public nudity ordi-
nance. However, we affirm the district court’s dismissal of
plaintiffs’ challenge to Dix’s alcohol regulations, the enact-
ment of which falls within the parameters of Illinois law and
is supported by a rational basis.
I. Background
The Village of Dix is a “dry” municipality of approxi-
mately 500 residents, located in Jefferson County, Illinois. In
October 2010, Dirt Cheap, Inc. purchased commercial real
estate in Dix and opened a nightclub offering erotic enter-
tainment. Two years later, Foxxxy Ladyz Adult World, Inc.
began to rent the property from Dirt Cheap. Now operated
by Foxxxy Ladyz, the nightclub features nude dancing and is
open to all members of the public age twenty-one and over.
Although Foxxxy Ladyz does not sell alcohol, it allows its
customers to bring their own alcoholic beverages (“BYOB”)
onto the premises. Foxxxy Ladyz is one of the few commer-
cial establishments in Dix, and is located across the interstate
highway from the Village’s other businesses, residences, and
grade school.
No. 14-1642 3
In December 2010, shortly after Dirt Cheap opened
Foxxxy Ladyz’s predecessor, Dix passed three ordinances,
each of which banned certain behavior throughout the Vil-
lage. First, Ordinance No. 2010-04 instituted a prohibition on
open containers of alcohol in public. The preamble to the or-
dinance explains that “the sale at retail of alcoholic liquor is
[already] prohibited by law” in Dix, and expresses a desire
to “preserve the ‘dry’ status of the Village of Dix to the full-
est extent permitted by law.” The preamble further asserts
that “the prohibition on the retail sale and public consump-
tion of alcoholic liquor within [Dix] is in the public interest
to maintain social order, health, welfare, and safety of citi-
zens.” The ordinance prohibits the possession of “any open
container of alcoholic liquor” in any “public place” within the
Village. The ordinance specifies that “public place” includes
any “privately owned [property], which is open to or held out
for use by the public or is otherwise available to the public.”
Dix next enacted Ordinance No. 2010-05, a public nudity
ban also aimed at preserving “social order, health, welfare,
and safety of citizens.” This ordinance replaced Ordinance
No. 9, Section 7, which had been in effect in Dix since 1930
and which provided, “No person shall appear in any public
place in a state of nudity, nor in a dress not belonging to his
or her sex, or any indecent or lewd dress, or make any inde-
cent exposure of his or her person, … nor shall commit any
indecent or lewd act.” 1 Expressing a “desire[] to continue the
prohibition on public nudity within the Village of Dix” and
1Plaintiffs allege that Dix’s prohibition on “indecent or lewd dress” is
unconstitutionally vague. The challenged language, however, has been
omitted from Dix’s revised public nudity ordinance. We therefore need
not address this argument.
4 No. 14-1642
to “update the [1930 ordinance] to use language which has
been approved by the Courts as consistent with the Illinois
and United States Constitution,” Ordinance No. 2010-05
reads:
No person shall knowingly or intentionally
appear nude or in a state of nudity in a public
place.
“Public place” means any location frequented
by the public or where the public is present or
likely to be present or any location where a
person may reasonably be expected to be ob-
served by members of the public or any place to
which the public has a right to go or is invited.
“Nude” or “State of Nudity” means the show-
ing of the human male or female genitals, pu-
bic area, vulva, anus, or anal cleft or cleavage
with less [than] a fully opaque covering, the
showing of the female breast with less than a
fully opaque covering of any part of the nipple
and areola, or the showing of the covered male
genitals in a discernibly turgid state.
An individual can comport with Ordinance No. 2010-05 by
wearing pasties and a G-string.
The third ordinance, No. 2010-06, prohibits the posses-
sion of liquor in public accommodations. The ordinance—
whose preamble largely restates the preamble to Ordinance
No. 2010-04—defines “public accommodation” as “a re-
freshment, entertainment or recreation facility of any kind
whose goods, services, facilities, privileges or advantages are
extended, offered, sold or otherwise made available to the
No. 14-1642 5
public.” In enacting these ordinances, Dix conducted no
studies, nor did it expressly cite other evidence suggesting
that the operation of Foxxxy Ladyz would lead to increased
crime or other undesirable “secondary effects” associated
with sexually oriented businesses.
An individual who violates any of these ordinances is
subject to a fine between $100.00 and $750.00 per violation,
and may also be enjoined from committing further offenses.
Given that Foxxxy Ladyz is a BYOB establishment that offers
fully nude dancing, it concededly operates in violation of all
three ordinances. In March 2013, the Dix Village Board sent
Foxxxy Ladyz a notice explaining that its actions constitute a
nuisance, and ordering Foxxxy Ladyz to immediately comply
with the applicable ordinances.
Shortly thereafter, plaintiffs filed suit in the United States
District Court for the Southern District of Illinois. They ar-
gue that Dix’s public nudity ban violates the free speech pro-
tections of the First Amendment (incorporated against the
states by the Fourteenth Amendment) and the Illinois Con-
stitution. 2 Plaintiffs also allege that Dix lacks authority to
pass the alcohol restrictions embodied in Ordinance Nos.
2010-04 and 2010-06 as a result of the limitations imposed
upon municipal regulation of alcohol by the Illinois Liquor
2 Although plaintiffs contend that the Illinois Constitution’s protection of
speech is broader than that found in the First Amendment of the United
States Constitution, this court has determined that “the Constitution of
the State of Illinois protects an individual’s right to free speech only to the
same extent that such speech is protected by the Constitution of the Unit-
ed States.” Trejo v. Shoben, 319 F.3d 878, 884 n.2 (7th Cir. 2003) (emphasis
added). Therefore, we need not independently address plaintiffs’ state
law claims.
6 No. 14-1642
Control Act, 235 Ill. Comp. Stat. 5. Dix moved to dismiss the
complaint pursuant to Federal Rule of Civil Procedure
12(b)(6), and the district court granted Dix’s motion as to
both claims. With respect to plaintiffs’ challenge to the pub-
lic nudity ban, the district court concluded first that Ordi-
nance No. 2010-05 is content neutral because it is targeted
not at the suppression of free expression but instead at re-
ducing the harmful secondary effects associated with nude
dancing; and second, that the ordinance survives the four-
prong test for content-neutral symbolic speech established
by the Supreme Court in United States v. O’Brien, 391 U.S.
367 (1968). The district court next concluded that Dix acted
within the parameters of Illinois law in enacting both of the
challenged alcohol restrictions. Determining that the open
container and BYOB regulations abridged no fundamental
right, the court applied a rational basis test and concluded
that both prohibitions withstand this deferential standard of
review. Plaintiffs appeal the district court’s ruling as to both
issues.
II. Discussion
We review de novo a district court’s grant of a motion to
dismiss for failure to state a claim, Alexander v. McKinney,
692 F.3d 553, 555 (7th Cir. 2012), “constru[ing] the complaint
in the light most favorable to the plaintiff, accepting as true
all well-pleaded facts alleged, and drawing all possible in-
ferences in [plaintiff’s] favor.” Hecker v. Deere & Co., 556 F.3d
575, 580 (7th Cir. 2009).
A. Public Nudity Ban
Although “[b]eing ‘in a state of nudity’ is not an inher-
ently expressive condition,” City of Erie v. Pap’s A.M., 529
No. 14-1642 7
U.S. 277, 289 (2000) (plurality opinion), “nude dancing … is
expressive conduct within the outer perimeters of the First
Amendment.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566
(1991) (plurality opinion). Dix contends that Ordinance No.
2010-05 is targeted not at nude dancing itself, but rather at
minimizing the deleterious “secondary effects”—such as
“the impacts on public health, safety, and welfare,” Pap’s
A.M., 529 U.S. at 291—caused by the presence of adult enter-
tainment establishments. When faced with such a legislative
justification, this court has “presume[d] that the government
did not intend to censor speech, even if the regulation inci-
dentally burdens particular instances of expressive con-
duct.” Schultz v. City of Cumberland, 228 F.3d 831, 841 (7th
Cir. 2000) (citing Pap’s A.M., 529 U.S. at 291). Nevertheless,
because Dix’s public nudity ban does entail an incidental
limitation on expressive activity, it must satisfy certain con-
stitutional standards. G.M. Enters., Inc. v. Town of St. Joseph,
Wis., 350 F.3d 631, 636 (7th Cir. 2003).
The U.S. Supreme Court has held that municipality-wide
regulations of public nudity, such as the ordinance at issue
here, are properly evaluated under the framework set forth
in United States v. O’Brien, 391 U.S. 367, for content-neutral
restrictions on symbolic speech. Pap’s A.M., 529 U.S. at 289;
see also G.M. Enters., 350 F.3d at 638 (“Regulations of public
nudity … are analyzed under the intermediate scrutiny test
of United States v. O’Brien.”). The Supreme Court first ap-
plied the O’Brien standard to a public nudity ordinance in its
fractured 1991 decision, Barnes v. Glen Theatre, Inc., 501 U.S.
560. Barnes addressed the constitutionality of an Indiana
public indecency statute nearly identical to Dix’s regulation,
which banned “nudity” in a “public place,” effectively re-
quiring exotic dancers to wear pasties and G-strings. Id. at
8 No. 14-1642
563, 569 n.2. The Court noted that Indiana, like Dix here,
“ha[d] not banned nude dancing as such, but ha[d] pro-
scribed public nudity across the board” in all public accom-
modations. Id. at 566. The Court 3 determined that the statute
was unrelated to the suppression of free expression—and
was therefore content neutral—concluding that “while the
dancing to which [the statute applies] ha[s] a communicative
element, it [i]s not the dancing that [i]s prohibited, but simp-
ly its being done in the nude.” Id. at 570–71. Because Ordi-
nance No. 2010-05 applies to all “public places” within Dix
and permits erotic dancing so long as pasties and G-strings
are worn, it merits the same constitutional analysis.
Under the O’Brien test, a regulation of public nudity will
be upheld if (1) the regulation is within the constitutional
power of the government; (2) the regulation furthers an im-
portant or substantial governmental interest; (3) the gov-
ernmental interest is unrelated to the suppression of free ex-
pression; and (4) the restriction on alleged First Amendment
freedoms is no greater than essential to further the govern-
ment’s interest. O’Brien, 391 U.S. at 377. Ordinance No. 2010-
05 easily satisfies three of these four prongs. With respect to
the first prong of the analysis, the Supreme Court estab-
lished in City of Erie v. Pap’s A.M. that the passage of a sub-
stantially similar public nudity ordinance to “protect public
health and safety [was] clearly within [a] city’s [constitution-
al] police powers.” 529 U.S. at 296. Dix’s proffered rationale
3 Justice Souter provided the necessary fifth vote in Barnes, and, as the
narrowest opinion in support of the judgment of the Court, under Marks
v. United States, 430 U.S. 188, 193 (1977), his concurrence is controlling.
He agreed with the plurality as to the question of content neutrality. See
Barnes, 501 U.S. at 586 (Souter, J., concurring in the judgment).
No. 14-1642 9
for Ordinance No. 2010-05—the maintenance of “social or-
der, health, welfare, and safety of citizens”—is essentially
the same as that advanced by the city of Erie. O’Brien’s third
prong, which inquires whether the governmental interest is
unrelated to the suppression of free expression, is identical
to the antecedent content neutrality inquiry, addressed
above. Finally, with regard to the fourth prong, which ex-
plores whether a challenged restraint on symbolic speech is
any more restrictive than necessary to further the govern-
ment’s interests, the Supreme Court has concluded that a
pasties and G-string requirement imposes only a de minimis
restriction on freedom of expression, and one that is “minor
when measured against the dancer’s remaining capacity and
opportunity to express the erotic message.” Barnes, 501 U.S.
at 587 (Souter, J., concurring in the judgment); see also G.M.
Enters., 350 F.3d at 636 (“The requirement that dancers wear
pasties and G-strings has only a ‘de minimis’ effect on the ex-
pression conveyed by nude dancing.”).
Dix’s public nudity ban fares less well, however, with re-
spect to the second prong of O’Brien, which demands that
Ordinance No. 2010-05 “further[] an important or substantial
governmental interest.” 391 U.S. at 377. As we have ex-
plained, Dix’s asserted justification for the ordinance’s en-
actment is the reduction of adverse secondary effects associ-
ated with establishments that offer erotic entertainment—an
interest whose validity the Barnes Court acknowledged. See
501 U.S. at 582 (crediting Indiana’s “substantial interest in
combating the secondary effects of adult entertainment es-
tablishments”). However, while the minimization of second-
ary effects may, in the abstract, satisfy O’Brien’s “substantial
governmental interest” requirement, Dix must nevertheless
offer some evidence that nude dancing in fact generates such
10 No. 14-1642
deleterious effects. See G.M. Enters., 350 F.3d at 638–39 (as-
sessing “what quality and quantum of evidence a regulating
body must consider in order to demonstrate that it has a rea-
sonable basis for believing that the regulated activity gener-
ates adverse secondary effects, the reduction of which is a
‘substantial government interest’ under the … O’Brien
test[]”). The outcome of this appeal ultimately turns on
whether, in enacting the challenged ordinance, Dix relied on
evidence sufficient to suggest that public nudity would give
rise to adverse secondary effects in the Village.
The parties dispute the evidentiary foundation that a
municipality must establish in order to invoke secondary ef-
fects as the justification for an ordinance burdening freedom
of expression. Plaintiffs contend that Dix must point to actu-
al data—be it from Dix itself or from a comparable munici-
pality—indicating a real harm that the Village’s public nudi-
ty ban would serve to mitigate. Dix counters that because
the language of Ordinance 2010-05 was intentionally mod-
eled after that of public nudity bans that have “been ap-
proved by the Courts as consistent with the Illinois and
United States Constitution,” prior judicial opinions address-
ing those bans provide all findings necessary to support Or-
dinance No. 2010-05’s enactment.
The district court shared Dix’s view. The court rejected
plaintiffs’ argument that Dix “needed a ‘predicate’—some
study, factual finding, or other evidence—in order to justify
that its nudity ban would combat the secondary effects of
nude dancing.” Foxxxy Ladyz Adult World, Inc. v. Vill. of Dix,
Ill., No. 13-482, slip op. at 10 n.5 (S.D. Ill. Mar. 12, 2014). Ac-
cording to the court, “The Pap’s A.M. plurality made clear
that relying on the evidentiary foundation of harmful sec-
No. 14-1642 11
ondary effects set forth in previous caselaw provides an ad-
equate rationale for passing a nudity ban.” Id. (citing Pap’s
A.M., 529 U.S. at 296–97). This conclusion was in error.
While Pap’s A.M. may have suggested that reliance on prior
case law was sufficient to justify the imposition of a ban on
public nudity, 4 the Supreme Court, in its subsequent deci-
sion, City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425
(2002) (plurality opinion), clarified that the evidentiary
standard a municipality must satisfy in order to constitu-
tionally impose a restriction on adult entertainment venues
is not so lenient.
The Court first addressed this standard in its 1986 opin-
ion, City of Renton v. Playtime Theatres, Inc., 475 U.S. 41.
There, the city of Renton, Washington (population 32,000)
enacted a zoning ordinance prohibiting the operation of any
“adult motion picture theater” within 1,000 feet of any resi-
dential zone, church, park, or school. Id. at 44. Prior to enact-
ing the ordinance, which “was aimed at preventing the sec-
ondary effects caused by the presence of even one such thea-
ter in a given neighborhood,” the city held public hearings,
4 To be sure, the district court’s conclusion is not without support from
the plurality opinion in Pap’s A.M. Evaluating a public nudity ban akin
to that at issue in Barnes and in the instant case, the plurality concluded,
“Because the nude dancing at [plaintiff’s establishment] is of the same
character as the adult entertainment at issue in [prior Supreme Court
cases], it was reasonable for Erie to conclude that such nude dancing was
likely to produce the same secondary effects.” 529 U.S. at 296–97 (citing
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. Am.
Mini Theatres, Inc., 427 U.S. 50 (1976) (plurality opinion); and California v.
LaRue, 409 U.S. 109 (1972)). However, as we discuss in greater detail be-
low, subsequent case law from the Supreme Court and from our own
circuit establishes more stringent evidentiary requirements.
12 No. 14-1642
considered studies produced by nearby Seattle, and re-
viewed a report from the City Attorney’s Office detailing
similar developments in other cities. Id. at 44, 50. In evaluat-
ing whether Renton had sufficiently demonstrated the exist-
ence of adverse secondary effects when it relied heavily on
data from other cities rather than on legislative findings spe-
cific to Renton, the Court endorsed Renton’s reliance on “the
experiences of Seattle and other cities, and in particular on
the ‘detailed findings’ summarized in the Washington Su-
preme Court’s Northend Cinema opinion.” Id. at 51 (citing
Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153 (Wash.
1978)). “The First Amendment does not require a city, before
enacting such an ordinance, to conduct new studies or pro-
duce 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.” Id. at 51–52. This language, which led the
Court to uphold Renton’s ordinance as a valid governmental
response to the “admittedly serious problems” created by
adult theatres, id. at 54, has provided the baseline for all sub-
sequent Supreme Court decisions addressing a municipali-
ty’s evidentiary burden in imposing restrictions on adult en-
tertainment establishments.
Renton was followed by Barnes and Pap’s A.M.—both plu-
rality opinions in which the Court upheld public nudity
bans over First Amendment challenge, invoking Renton’s ev-
identiary standard and endorsing reliance on prior case law
to meet that standard. See Barnes, 501 U.S. at 584 (noting that
because the type of entertainment the government sought to
regulate was “plainly of the same character as that at issue in
Renton, …. [i]t is therefore no leap to say that live nude danc-
ing of the sort at issue here is likely to produce the same
No. 14-1642 13
pernicious secondary effects”); see also Pap’s A.M., 529 U.S. at
296–97. Recognizing that the divided opinions in Pap’s A.M.
and Barnes may have muddied the waters regarding the na-
ture and extent of the evidence a governmental body must
evaluate in order to conclude that a regulated activity pro-
duces adverse secondary effects, the Court granted certiorari
in City of Los Angeles v. Alameda Books, Inc., “to clarify the
standard for determining whether an ordinance serves a sub-
stantial government interest under Renton.” 535 U.S. at 433.
In Alameda Books, plaintiff operators of an adult bookstore
and adult video arcade challenged a 1983 Los Angeles ordi-
nance prohibiting the operation of multiple adult businesses
in the same building. Id. at 431–32. In enacting the ordinance,
Los Angeles looked to a 1977 study it had conducted, which
focused not on the effects of multiple adult entertainment
businesses within a single complex, but rather on the effects
of a concentration of separate adult establishments within
close geographic proximity. Id. at 430. Although Los Angeles
did not consider evidence bearing directly on the alleged
link between multiple-use adult establishments and negative
secondary effects, the Supreme Court determined that Los
Angeles permissibly relied on the 1977 study. See id. at 436
(“[I]t is rational for the city to infer that reducing the concen-
tration of adult operations in a neighborhood, whether with-
in separate establishments or in one large establishment, will
reduce crime rates.”).
In an attempt to crystalize the evidentiary standard set
forth in Renton, the Alameda Books plurality explained,
In Renton, we …. held that a municipality may
rely on any evidence that is “reasonably be-
lieved to be relevant” for demonstrating a con-
14 No. 14-1642
nection between speech and a substantial, in-
dependent government interest. This is not to
say that a municipality can get away with shoddy
data or reasoning. The municipality’s evidence
must fairly support the municipality's rationale for
its ordinance. 5
Id. at 438 (emphasis added) (citations omitted) (quoting Ren-
ton, 475 U.S. at 51). Concluding that Los Angeles, “at th[at]
stage of the litigation, ha[d] complied with the evidentiary
requirement in Renton,” id. at 439, the Court reversed the
Ninth Circuit’s grant of summary judgment in plaintiffs’ fa-
vor, and remanded the case for an evidentiary hearing to de-
termine whether Los Angeles’s secondary effects evidence
was strong enough to justify the challenged ordinance. The
Court declined, however, to conclusively hold that the ordi-
nance complied with the dictates of the First Amendment.
See id. at 453 (Kennedy, J., concurring in the judgment) (“If
[Los Angeles’s evidentiary basis] can be proved unsound at
trial, then the ordinance might not withstand intermediate
scrutiny.”).
In the wake of Alameda Books, our court has been con-
sistent in requiring that a regulating body produce some
specific, tangible evidence establishing a link between the
regulated activity and harmful secondary effects. Our deci-
sion in Annex Books, Inc. v. City of Indianapolis, Ind., 581 F.3d
5 Justice Kennedy, who provided the necessary fifth vote in Alameda
Books, agreed with the evidentiary standard set forth by the plurality. In
analyzing “how much evidence is required to support the proposition”
that a particular establishment may create negative secondary effects, he
concluded that “[t]he plurality … gives the correct answer.” 535 U.S. at
449 (Kennedy, J., concurring in the judgment).
No. 14-1642 15
460 (7th Cir. 2009), is particularly instructive. In Annex Books,
Indianapolis revised its ordinances relating to adult busi-
nesses, expanding the definition of “adult entertainment
business” and prohibiting the operation of such businesses
after midnight or on Sundays. Id. at 461. 6 The city attempted
to justify the restrictions on the ground that they would “re-
duce crime and other secondary effects associated with adult
businesses.” Id. at 462. In setting forth the applicable eviden-
tiary standard, we interpreted Alameda Books to require a
demonstration that a regulation is “‘likely to cause a signifi-
cant decrease in secondary effects and a trivial decrease in
the quantity of speech.’ ‘[In other words, a] city must ad-
vance some basis to show that its regulation has the purpose
and effect of suppressing secondary effects … .’” Id. at 465
(quoting Alameda Books, 535 U.S. at 445, 449).
In revising the challenged ordinances, Indianapolis relied
on a 1984 study that found higher crime rates near adult
businesses. However, we rejected the study’s probative val-
ue, concluding that it was relevant only to a restriction on
the high concentration of adult businesses in a particular ge-
ographic area, which Indianapolis’s ordinances did not seek
6 Although the regulations at issue in Annex Books were more extensive
than those at issue in the instant case, it is clear that intermediate scruti-
ny applies to both sets of regulations. See Annex Books, 581 F.3d at 462
(“[Indianapolis] concedes that its laws are subject to ‘intermediate’ scru-
tiny … .”); Schultz, 228 F.3d at 841 (“[A] general prohibition on all public
nudity receives intermediate scrutiny … when the government offers as
its legislative justification the suppression of public nudity’s negative
secondary effects.”). Therefore, the district court was incorrect to con-
clude that Annex Books is not relevant because it involved ordinances
specifically targeted at adult businesses while Dix’s ordinance is a gen-
eral village-wide ban on nudity.
16 No. 14-1642
to regulate. Id. at 462. We also objected to the fact that most
of the plaintiffs were book and video outlets, which did not
offer live entertainment, but that the studies that Indianapo-
lis cited dealt exclusively with live entertainment venues. Id
at 463. In summarizing the flaws in Indianapolis’s research,
we explained,
Indianapolis has approached this case by as-
suming that any empirical study of morals of-
fenses near any kind of adult establishment in
any city justifies every possible kind of legal
restriction in every city. … But because books
(even of the “adult” variety) have a constitu-
tional status different from granola and wine,
… the public benefits of the restrictions must be
established by evidence, and not just asserted.
The evidence need not be local; Indianapolis is
entitled to rely on findings from Milwaukee or
Memphis (provided that a suitable effort is
made to control for other variables). But there
must be evidence; lawyers’ talk is insufficient.
Id. (citations omitted). We ultimately held that the “short-
comings” of the secondary effects evidence cited by Indian-
apolis “call[ed] the City’s justifications into question and re-
quire[d] an evidentiary hearing at which the City must sup-
port its ordinance under the intermediate standard of Alame-
da Books.” Id. at 465.
We reaffirmed this evidentiary standard in New Albany
DVD, LLC v. City of New Albany, Ind., 581 F.3d 556 (7th Cir.
2009). There, the city of New Albany enacted a prohibition
on the operation of any sexually oriented business within
1,000 feet of any church, which prevented plaintiff adult
No. 14-1642 17
book and video outlet from operating in its current location.
Id. at 558. The district court granted plaintiff’s motion for a
preliminary injunction, which the city appealed. Although
we found fault with the district court’s conclusion that New
Albany’s ordinance was not narrowly tailored, id. at 558–59,
we nonetheless agreed that the city—at least at that point in
the litigation—had not demonstrated that the plaintiff’s es-
tablishment, or other comparable businesses, generated any
adverse secondary effects. Id. at 559. With respect to New
Albany’s first proffered injurious secondary effect—
increased theft—we concluded that the city had not offered
evidence that “fairly support[ed]” the contention that adult
bookstores located near churches attracted thieves. Id. at 560.
We also found that the city had produced insufficient ev-
identiary support for the ordinance’s alternative justifica-
tion—an increase in pornographic litter. We determined
that, in order to salvage the anti-litter rationale on remand,
New Albany would be required to present evidence estab-
lishing “(a) how much sex-oriented litter an adult bookstore
generates; (b) who is likely to see that litter in the parts of
New Albany where adult bookstores are allowed to operate;
and (c) how much adult litter will remain in New Albany’s
central business area … if plaintiff is exiled.” Id. at 561. In
sum, both Annex Books and New Albany require that a munic-
ipality enacting an ordinance that burdens freedom of ex-
pression demonstrate a reasonable connection between the
cited evidentiary basis for its regulation and the specific facts
and circumstances on the ground.
Applying this precedent to Ordinance No. 2010-05, we
reverse the district court’s grant of Dix’s motion to dismiss.
To pass constitutional muster, Dix must provide some con-
18 No. 14-1642
crete evidence indicating that public nudity generates ad-
verse secondary effects. Dix has produced no such evi-
dence—either within the Village itself or in an analogous
municipality. All Dix has offered is the generic maxim that it
“is in the public interest to maintain social order, health,
welfare, and safety of citizens.” As we observed in Annex
Books, if public nudity is “associated with significant crime
or disorderly conduct, it should be easy for [the municipali-
ty] to show it.” 581 F.3d at 463. But, like Indianapolis there,
Dix here “has not offered an iota of evidence to that effect.”
Id.
As for the “quality and quantum of evidence” Dix must
produce, G.M. Enters., 350 F.3d at 638, the Village retains
considerable flexibility in identifying evidentiary support.
As we explained in Annex Books, Dix is not required to con-
duct independent studies regarding undesirable secondary
effects, but rather may rely on evidence from other munici-
palities—“provided that a suitable effort is made to control
for other variables.” 581 F.3d at 463. There is also no need for
the relied-upon evidence to meet the demanding require-
ments of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579 (1993), the governing standard for the admissibility of
expert testimony at trial. See G.M. Enters., 350 F.3d at 640 (re-
jecting as “completely unfounded” the contention that a
municipality cannot establish a reasonable basis for believ-
ing its regulations will reduce adverse secondary effects
“unless the studies it relied upon are of sufficient methodo-
logical rigor to be admissible under Daubert”). We recognize
that Dix is entitled to a “reasonable opportunity to experi-
ment with solutions to address the secondary effects of pro-
tected speech.” Alameda Books, 535 U.S. at 439 (plurality opin-
ion) (citation and internal quotation marks omitted). But this
No. 14-1642 19
leeway does not diminish the importance of the evidentiary
requirement: to establish the constitutionality of Ordinance
No. 2010-05, Dix must offer evidence sufficient to “demon-
strate a reasonable belief in a causal relationship between
[public nudity] and secondary effects.” G.M. Enters., 350 F.3d
at 640.
Finally, we emphasize that this dispute is only at the mo-
tion-to-dismiss stage. In reversing the district court, we con-
clude only that Dix—at this early phase of the litigation—has
not pointed to sufficient secondary effects evidence to permit
disposing of plaintiffs’ claim altogether. If, on remand, Dix
produces concrete evidentiary support, and “[i]f plaintiffs
fail to cast direct doubt on [its proffered] rationale, either by
demonstrating that [Dix]’s evidence does not support its ra-
tionale or by furnishing evidence that disputes [Dix]’s factu-
al findings,” Ordinance No. 2010-05 should be upheld. Ala-
meda Books, 535 U.S. at 438–39. By contrast, “[i]f plaintiffs
succeed in casting doubt on [Dix]’s rationale in either man-
ner, the burden shifts back to [Dix] to supplement the record
with evidence renewing support for a theory that justifies its
ordinance.” Id. at 439. To dismiss plaintiffs’ claim now, when
Dix has not yet made any affirmative showing of adverse
secondary effects and plaintiffs have therefore not received a
full and fair opportunity to challenge Dix’s findings, 7 would
be premature.
7 Plaintiffs claim that Dix “adopted [Ordinance No. 2010-05] solely for
the purpose of interfering with Plaintiffs’ business and suppressing the
entertainment offered to willing customers.” While the Supreme Court
has repeatedly held that it “will not strike down an otherwise constitu-
tional statute on the basis of an alleged illicit legislative motive,” O’Brien,
391 U.S. at 383, plaintiffs are nevertheless entitled an opportunity to dis-
20 No. 14-1642
B. Alcohol Regulations
Plaintiffs also argue that, under Illinois law, Dix lacked
authority to pass the open container ban (Ordinance No.
2010-04) and the prohibition on the possession of alcohol in
public accommodations (Ordinance No. 2010-06). They fur-
ther contend that, even if Dix acted within the parameters of
Illinois law in enacting the challenged regulations, the bans
nevertheless violate the First Amendment because Dix has
produced no evidence demonstrating that the possession of
liquor by patrons of a business offering erotic entertainment
generates adverse secondary effects.
The Illinois Liquor Control Act (“ILCA”), 235 Ill. Comp.
Stat. 5, is the primary statute governing the ability of Illinois
municipalities to regulate the sale and distribution of alco-
hol, and “prescribes the limits beyond which a municipality
may not act.” Cheetah Enters., Inc. v. Cnty. of Lake, 317 N.E.2d
129, 132 (Ill. App. Ct. 1974). The ILCA instructs that its pro-
visions “shall be liberally construed, to the end that the
health, safety and welfare of the People of the State of Illi-
nois shall be protected and temperance in the consumption
of alcoholic liquors shall be fostered and promoted.” 235 Ill.
Comp. Stat. 5/1-2.
Plaintiffs contend that the challenged ordinances violate
§ 2-1 of the ILCA, which states, “nothing herein contained
shall prevent the possession and transportation of alcoholic
liquor by the possessor for the personal use of the possessor,
his family and guests.” 235 Ill. Comp. Stat. 5/2-1. But Dix has
not prohibited the possession or transportation of alcohol for
pute the evidence offered in support of Dix’s secondary effects rationale.
Alameda Books, 535 U.S. at 438–39.
No. 14-1642 21
“personal use”; it has simply regulated the possession and
consumption of alcohol in public. 8
Dix argues that its authority to enact the challenged alco-
hol restrictions derives directly from § 4-1 of the ILCA,
which permits municipalities to “establish such further regu-
lations and restrictions upon the issuance of and operations
under local licenses not inconsistent with law as the public
good and convenience may require.” 235 Ill. Comp. Stat. 5/4-
1. However, § 4-1 applies specifically to the regulation of
those establishments that have been granted municipal li-
censes to sell liquor. As Dix is a dry municipality, 9 neither
Foxxxy Ladyz nor any other commercial establishment with-
in the Village has received such a license, and therefore § 4-1
does not control. Yet § 4-1 is nonetheless instructive. Given
that our court has interpreted this provision as a grant of
8 It is worth noting that the State of Illinois has enacted a statewide ban
on the transportation of open containers of alcohol in vehicles, so § 2-1 of
the ILCA cannot fairly be read to guarantee individuals an uninhibited
right to possess and transport alcohol, no matter the circumstances. See
625 Ill. Comp. Stat. 5/11-502 (“[N]o driver [or passenger] may transport,
carry, possess or have any alcoholic liquor within the passenger area of
any motor vehicle upon a highway in this State except in the original
container and with the seal unbroken.”).
9 Pursuant to 235 Ill. Comp. Stat. 5/9-2, a municipality that currently
permits the sale of alcohol may not prohibit it without obtaining authori-
zation via a general referendum. Once a municipality has attained “dry”
status, however, the municipality may remain dry until a general refer-
endum is passed requiring it to again permit the sale of alcohol. 235 Ill.
Comp. Stat. 5/9-10. According to plaintiffs, § 9-2 implies that Dix could
not ban the consumption of alcohol in public without conducting a simi-
lar referendum. But § 9-2 applies only to prohibitions on the sale of alco-
hol—not its public consumption. Put simply, the ILCA’s referendum
requirement is inapplicable to the restrictions at issue here.
22 No. 14-1642
“broad discretionary authority” to aid municipalities in their
regulation of liquor licensees, Frey Corp. v. City of Peoria, Ill.,
735 F.3d 505, 510 (7th Cir. 2013), it makes little sense to con-
clude that, where a municipality has properly banned liquor
licenses altogether, it lacks implicit authority to impose addi-
tional restrictions that advance its long-held “dry” status—
particularly where such restrictions further the ILCA’s pub-
lic safety goals.
Moreover, while the ILCA is silent as to both public con-
sumption and BYOB, Dix finds authorization for the enact-
ment of Ordinance Nos. 2010-04 and 2010-06 in the Illinois
Municipal Code, 65 Ill. Comp. Stat. 5. The Code expressly
endorses Ordinance No. 2010-06, Dix’s prohibition on the
possession of alcohol in public accommodations, by permit-
ting municipalities to “regulate businesses operating as a
public accommodation that permit the consumption of alco-
holic liquor on the business premises and that are not li-
censed under the [ILCA].” 65 Ill. Comp. Stat. 5/11-42-10.1. As
an “entertainment” facility that permits any individual over
age twenty-one to enter and consume alcohol, Foxxxy Ladyz
constitutes a “public accommodation” within the meaning of
the Code, and Dix therefore acted within its express statuto-
ry authority in restricting the possession of alcohol therein.
See id. (“‘[P]ublic accommodation’ means a refreshment, en-
tertainment, or recreation facility of any kind, whether li-
censed or not, whose goods, services, facilities, privileges, or
advantages are extended, offered, sold, or otherwise made
available to the public.”).
With regard to Ordinance No. 2010-04—Dix’s open con-
tainer ban—the Municipal Code makes no express reference
to open containers of alcohol in public; however, it empow-
No. 14-1642 23
ers all Illinois municipalities to “prevent intoxication … and
all other disorderly conduct.” 65 Ill. Comp. Stat. 5/11-5-3.
Countless municipalities in the State of Illinois have elected
to prohibit public consumption of alcohol as one method of
combating intoxication. See, e.g., Chi., Ill., Mun. Code § 8-4-
030 (“It shall be unlawful for any person to drink any alco-
holic liquor as defined by law on any public way … .”). Read
in conjunction with the permissive language of the ILCA, the
Municipal Code confirms the Illinois legislature’s intent to
confer on municipalities broad discretion to regulate alcohol
consumption in order to promote public health and safety,
including via the imposition of a prohibition on open con-
tainers of alcohol in public. We therefore conclude that Dix’s
enactment of Ordinance Nos. 2010-04 and 2010-06 falls with-
in the parameters of Illinois law.
Turning to whether the challenged alcohol regulations
comport with constitutional requirements, that inquiry is a
simple one. We have unequivocally held that the First
Amendment does not entitle a bar, its dancers or its patrons,
“to have alcohol available during a ‘presentation’ of nude or
semi-nude dancing.” Ben’s Bar, Inc. v. Vill. of Somerset, 316
F.3d 702, 726 (7th Cir. 2003). In Ben’s Bar, Inc. v. Village of
Somerset, we upheld a municipal ordinance prohibiting the
sale, use, or consumption of alcohol on the premises of
“Sexually Oriented Businesses.” Id. at 704, 728. Concluding
that the regulation at issue was “not a restriction on erotic
expression, but a prohibition of nonexpressive conduct (i.e.,
serving and consuming alcohol) during the presentation of
expressive conduct,” we subjected the challenged regulation
to intermediate scrutiny. Id. at 724, 726. However, in contrast
to the regulation at issue in Ben’s Bar, the challenged ordi-
nances here do not single out “sexually oriented businesses,”
24 No. 14-1642
which are subject to some limited amount of First Amend-
ment protection; rather, Ordinance Nos. 2010-04 and 2010-06
apply broadly to all public accommodations and do not, on
their face, target establishments where protected expressive
conduct is likely to occur. Therefore, the district court cor-
rectly concluded that Dix’s alcohol ordinances burden no
fundamental rights, and that the ordinances need only with-
stand rational basis review.
A regulation satisfies rational basis so long as it is ration-
ally related to some legitimate government interest. Wis.
Educ. Ass’n Council v. Walker, 705 F.3d 640, 653 (7th Cir.
2013). Such a regulation “bear[s] a strong presumption of
validity” and the challenging party bears the burden of ne-
gating “every conceivable basis which might support it.”
FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314–15 (1993). Fur-
ther, under rational basis review, “it is entirely irrelevant …
whether the conceived reason for the challenged [regulation]
actually motivated the legislature.” Id. at 315. “[A] legislative
choice is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or
empirical data.” Id.
Based on this deferential standard of review, plaintiffs’
challenge fails. Dix’s asserted interests in enacting the alco-
hol restrictions—maintaining “social order, health, welfare,
and safety” and “preserv[ing] the ‘dry’ status of the Village
of Dix to the fullest extent permitted by law”—are undoubt-
edly legitimate and bear a reasonable relation to the open
container and public accommodations bans. Although plain-
tiffs allege that the true motivation behind the alcohol re-
strictions was to interfere with the successful operation of
Foxxxy Ladyz, this allegation is insufficient to render a regu-
No. 14-1642 25
lation invalid under rational basis review so long as some
hypothetical legitimate government interest exists to support
the challenged regulation. See id. Finally, because regulations
survive rational basis review even if they are “speculation[s]
unsupported by evidence,” id., Dix was under no obligation
to demonstrate concrete evidence of adverse secondary ef-
fects prior to enacting the contested ordinances. The district
court was therefore correct to dismiss plaintiffs’ challenge to
Ordinance Nos. 2010-04 and 2010-06.
III. Conclusion
We REVERSE the district court’s dismissal of plaintiffs’
challenge to Dix’s public nudity ban but AFFIRM its dismissal
of plaintiffs’ challenge to Dix’s alcohol regulations, and
REMAND for further proceedings consistent with this opin-
ion.