Excalibur Group v. City of Minneapolis

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
_____________
No. 96-1098
_____________
Excalibur Group, Inc., a *
Minnesota Corporation, *
*
Plaintiff - Appellant, * Appeal from the United States
* District Court for the
v. * District of Minnesota.
*
City of Minneapolis, *
*
Defendant - Appellee. *
_____________
Submitted: November 20, 1996
Filed: June 24, 1997
_____________
Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.
_____________
HANSEN, Circuit Judge.
The Excalibur Group, Inc., (Excalibur) operates an adult bookstore,
Sex World, in downtown Minneapolis, Minnesota. Excalibur brought this
action, seeking declaratory and injunctive relief on the basis that certain
portions of Minneapolis Code
of Ordinances § 540.410, which regulates adults-only businesses, are
unconstitutional under the First and Fourteenth Amendments of the United
States Constitution. The district court1 granted summary judgment to the
City of Minneapolis, and we affirm.
I.
A. General Background of Section 540.410
Over twenty years ago, the City of Minneapolis (the city) enacted
Minneapolis Code of Ordinances § 540.410, a zoning ordinance regulating
adults-only businesses. In 1986, the city amended the ordinance for the
third time, adding the provisions challenged in this case. The creation
of section 540.410 and its amendments involved the sensitive balancing of
the adults-only businesses' interest in free speech with the city's
interest in minimizing the adverse secondary effects caused by those
businesses. In the process of enacting the 1986 amendment, the city held
several public hearings, giving citizens, business owners, civic leaders,
and community organizations an opportunity to voice their opinions about
the ordinance.
In addition to conducting the hearings, the city directed its
Planning Department Staff (the staff) to study various empirical studies
of other cities regarding the effects of adults-only businesses on their
surrounding areas.2 The Indianapolis study, the results of which were
similar to those in the other studies, found that adults-only businesses
adversely impacted the areas surrounding adults-only businesses in numerous
ways. The incidence of major crimes in surrounding areas was 23 percent
1
The Honorable Michael J. Davis, United States District Judge for the District
of Minnesota.
2
The staff looked at studies performed in Seattle, Washington; Chicago, Illinois;
Los Angeles, California; Indianapolis, Indiana; and Portland, Oregon. (Appellant's
App. at 85.)
2
higher than in other areas, and sex-related crimes occurred almost twice
as often. Housing values appreciated at only half the rate as values in
other areas of the city, and property turnover was substantially higher.
The evidence of these and other deleterious effects, as well as the
testimony received at the hearings, convinced the staff that the downtown
area in Minneapolis was best able to "buffer" the impact of adult
businesses on surrounding neighborhoods. The staff recommended enacting
the proposed amendment to "control the adverse impacts on residentially
zoned areas and the City's fragile strip and neighborhood commercial
areas." (Appellant's App. at 85.)
In addition to the restrictions on location, the staff proposed an
amendment regulating the signs identifying the adults-only businesses and
prohibiting the display of their merchandise in a manner that would be
visible from the sidewalk in front of the establishments. The staff felt
that controlling the appearance and image of the sexually oriented
businesses would make the locational restrictions more effective in
minimizing the blighting impact of adults-only businesses.
The staff's findings and recommendations were adopted by the
Minneapolis City Planning Commission, and the city ultimately enacted the
proposed amendments. Subsection (a) of the amended ordinance states the
city's objectives for the restrictions found therein:
In the development and execution of this section, it is
recognized that there are some uses which, because of their
very nature, are recognized as having serious objectionable
operational characteristics, particularly when several of them
are concentrated under certain circumstances thereby having a
deleterious effect upon the use and enjoyment of adjacent
areas. Special regulation of these uses is necessary to insure
that these adverse effects will not contribute to the blighting
or downgrading of the surrounding neighborhood. . . . The
primary control or regulation is for the purpose of preventing
a concentration of these uses in any one area.
3
Minneapolis, Minn., Code of Ordinances § 540.410(a).
It was not long before the locational restrictions in the ordinance
were challenged as unconstitutional abridgments on speech. We upheld those
restrictions, finding them to be permissible regulations on the time, place
and manner of the adults-only businesses' speech. Alexander v. City of
Minneapolis, 928 F.2d 278, 283-84 (8th Cir. 1991).
We now address a constitutional challenge to the sign requirements,
which are codified in subsection (g) of the ordinance:
(g) Sign requirements for all uses. All new regulated uses, and all
existing regulated uses by December 1, 1988, shall comply with the
following sign requirements:
(1) All signs shall be flat wall signs.
(2) The amount of allowable sign area shall be one square foot
of sign area per foot of lot frontage on a street.
(3) No merchandise or pictures of the products or
entertainment on the premises shall be displayed in window
areas or any area where they can be viewed from the sidewalk in
front of the building.
(4) Window areas shall not be covered or made opaque in any
way. No signs shall be placed in any window. A one-square-
foot sign may be placed on the door to state hours of operation
and admittance to adults only.
Minneapolis, Minn., Code of Ordinances § 540.410(g). Excalibur contends
that subsection (g)(3) is overbroad and subsection (g)(4) is
unconstitutional on its face and as applied to Excalibur.
4
B. Procedural Background
After receiving notification from the city zoning inspector that it
was in violation of subsections (g)(3) and (g)(4), Excalibur brought this
declaratory judgment action in federal court, arguing that subsection
(g)(4) of the above ordinance is facially unconstitutional and
unconstitutional as applied to Excalibur.3 Excalibur then filed a motion
seeking a temporary restraining order and a preliminary injunction. After
conducting a hearing, the district court denied Excalibur's motion,
concluding Excalibur was unlikely to succeed on the merits of its claims.
Subsequently, the city filed criminal charges against Dennis
Buchanan, who operates Sex World, and the owner of another adult bookstore
for violations of sections 541.410(g)(3) and (g)(4). The defendants were
found guilty as charged, and the Minnesota Court of Appeals affirmed the
convictions. See State v. Holmberg, 545 N.W.2d 65, 74 (Minn. Ct. App.
1996).
While the criminal case was still pending, however, the city brought
a motion for summary judgment on the merits of the declaratory judgment
action. In Excalibur's memorandum in opposition to the city's motion,
Excalibur argued the claims submitted in its original complaint, as well
as an additional claim that section 540.410(g)(3) is unconstitutionally
overbroad. The district court addressed all of Excalibur's claims, found
them lacking in merit, and granted the city's motion for summary judgment.
This appeal followed.
3
Excalibur also challenged the constitutionality of § 34.60(a)(1) of the
Minneapolis Code of Ordinances, which requires approval from the Heritage
Preservation Commission prior to the placement of signs on certain buildings. The
district court held that this ordinance is not applicable to window signs and that
Excalibur had no meritorious First Amendment claim against the ordinance. The
parties do not appeal that holding.
5
II.
We review the district court's grant of summary judgment de novo,
using the same standard under Federal Rule of Civil Procedure 56(c) as
applied by the district court. Toney v. WCCO Television, Midwest Cable &
Satellite, Inc., 85 F.3d 383, 386 (8th Cir. 1996). Under Rule 56(c),
summary judgment is warranted when "there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a
matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986).
The material facts in this case are undisputed. Further, the parties
agree that Sex World is an adults-only bookstore and therefore subject to
the regulations in section 540.541. See Minneapolis, Minn., Code of
Ordinances § 540.410(a), (b)(1). The parties also agree that Excalibur is
entitled to free-speech protections under the First and Fourteenth
Amendments. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65-66 (1981)
(recognizing First Amendment protection for sexually explicit speech that
is not "obscene"); 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495,
1515 (1996) (noting that the Fourteenth Amendment extends First Amendment
protection to state and local levels). Thus, we limit our inquiry to the
legal question of whether the challenged portions of the ordinance are
unconstitutional restrictions on free speech.
A. Section 540.410(g)(4)
Excalibur contends that section 540.410(g)(4) unconstitutionally
infringes on Excalibur's First Amendment rights. Because the ordinance
does not create an absolute ban on speech, it is "``properly analyzed as a
form of time, place, and manner regulation.'" ILQ Invs., Inc. v. City of
Rochester, 25 F.3d 1413, 1416 (8th Cir.) (quoting City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 46 (1986)), cert. denied, 513 U.S.
1017 (1994). Time, place, and manner regulations are constitutional under
First Amendment jurisprudence if (1) they "are justified without reference
to the
6
content of the regulated speech," (2) "they are narrowly tailored to serve
a significant governmental interest," and (3) "they leave open ample
alternative channels for communication of the information." Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (internal quotations omitted).
We first consider whether section 540.410(g)(4) is content-neutral.
A regulation is content-neutral if it is "justified without reference to
the content of the regulated speech." Id. (emphasis and internal
quotations omitted). Such a regulation is neutral "even if it has an
incidental effect on some speakers or messages but not others." Id.
(citing Renton, 475 U.S. at 47-48). Thus, at this point in the analysis,
we focus on the city's purpose for enacting the ordinance. Id.; ILQ Invs.,
Inc., 25 F.3d at 1416.
The purpose statement in section 540.410(a) indicates that the city
enacted the ordinance to minimize the adverse impacts of the sexually
oriented businesses on the surrounding areas. Specifically, the city
recognized that "serious objectionable operational characteristics [of
sexually oriented businesses have] a deleterious effect upon the use and
enjoyment of adjacent areas" and enacted section 540.410 "to ensure that
these adverse effects will not contribute to the blighting or downgrading
of the surrounding neighborhood." Minneapolis, Minn., Code of Ordinances
§ 540.541(a). This purpose of eliminating "secondary effects" that are
unrelated to the content of the restricted speech renders section 540.410
a content-neutral ordinance. See Renton, 475 U.S. at 47-48. Cf.
Alexander, 928 F.2d at 282-83 (assuming section 540.410 was content-neutral
and noting that the plaintiff was not appealing the district court's
decision reaching this conclusion).
Excalibur argues that the secondary-effects justification for section
540.410 applies only to the locational restrictions in the ordinance, not
to the sign requirements in subsection (g)(4) of the ordinance. We reject
this argument, because the purpose statement in subsection (a) is clearly
intended to explain the basis for all of the provisions in the ordinance.
While the purpose statement specifically notes that the
7
ordinance seeks to prevent a concentration of adults-only businesses in any
one area, the concern about the adverse impacts of the adults-only
businesses and the intent to minimize those impacts applies to all of the
substantive provisions of section 540.410.
Excalibur also contends the legislative history of the ordinance does
not support the city's claim that the purpose of the sign restrictions was
to minimize secondary effects. Relying on a report made by the staff of
the City Planning Commission and adopted by the Commission, Excalibur
argues the city was merely trying to further aesthetic objectives by
creating the sign restrictions. See Ward, 491 U.S. at 793 (noting that
regulation to further purely aesthetic goals would "raise serious First
Amendment concerns"). The report reads: "The Downtown is best able to
``buffer' the impact of adult uses on surrounding properties. This would
be even more effective if design controls were included to control the
appearance and image of adult businesses." (Appellee's App. at A21.)
While this report indicates that the city aimed the sign requirements at
the outward appearance of the adults-only businesses, this regulation was
a legitimate means to serve the city's overall secondary-effects objective
-- minimizing the adverse effects these businesses have on surrounding
areas. The city's secondary-effects justification is unrelated to the
content of any signs, and the sign regulation has no content restrictions.
Section 540.410(g)(4) is therefore a content-neutral regulation.
We next consider whether subsection (g)(4) was "narrowly tailored to
serve a significant governmental interest." Ward, 491 U.S. at 791; see
also Renton, 475 U.S. at 47 (stating that the regulation must be "designed
to serve a substantial governmental interest"). The question of whether
the ordinance serves a significant governmental interest is easily
resolved, because, as a matter of settled law, regulations aimed at
minimizing the secondary effects of sexually oriented businesses serve a
significant and substantial governmental interest. See, e.g., Renton, 475
U.S. at 50; ILQ Invs., Inc., 25 F.3d at 1416; Holmberg v. City of Ramsey,
12 F.3d 140, 143 (8th Cir. 1993), cert. denied, 513 U.S. 810 (1994); see
also Young v. American Mini Theatres, Inc., 427
8
U.S. 50, 71 (1976) (plurality opinion) ("[T]he city's interest in
attempting to preserve the quality of life is one that must be accorded
high respect."). Furthermore, this record, which includes studies of
several cities and evidence obtained at the hearings held by the City of
Minneapolis, indicates that the city had substantial evidence on which to
base its conclusions about the secondary effects of adults-only businesses.
See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994)
(explaining that legislative predictive judgments are entitled to deference
in the First Amendment context of content-neutral regulation as long as the
conclusions are "reasonable inferences based on substantial evidence");
Renton, 475 U.S. at 51-52 ("The First Amendment does not require a city,
before enacting such an 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."). The issue thus narrows
to whether the sign restrictions in subsection (g)(4) are themselves
narrowly tailored to serve the city's significant interest.
To be "narrowly tailored" in this context, the regulation need not
be the least restrictive means of serving the city's content-neutral
interest. Ward, 491 U.S. at 797; Van Bergen v. Minnesota, 59 F.3d 1541,
1555 n.13 (8th Cir. 1995). "[T]he requirement of narrow tailoring is
satisfied so long as the regulation promotes a substantial interest that
would be achieved less effectively absent the regulation" and the means
chosen does not "burden substantially more speech than is necessary to
further" the city's content-neutral interest. Ward, 491 U.S. at 799
(internal quotations omitted); see also Turner Broad., Inc. v. FCC, 117 S.
Ct. 1174, 1186 (1997) (citing United States v. O'Brien, 391 U.S. 367, 377
(1968)). "[T]he validity of the regulation depends on the relation it
bears to the overall problem the [city] seeks to correct, not on the extent
to which it furthers the [city's] interests in an individual case." Ward,
491 U.S. at 801. We will not strike down a time, place, or manner
regulation merely because we can envision a less-restrictive or more
effective means of furthering the city's content-neutral objectives. Ward,
491 U.S. at 800.
9
The city sought to minimize the blighting caused by adult-only
businesses in two ways. First, the city required the adults-only
businesses to operate within a specifically zoned area in downtown
Minneapolis, the area "best able to ``buffer' the impact of adult uses on
surrounding properties." (Appellee's App. at A21.) Second, the city
attempted to minimize the visual impact of the businesses on the
neighborhood by regulating the signs on the businesses' premises. This
second remedy stemmed from a belief that the locational limitations would
"be even more effective if design controls were included to control the
appearance and image of adult businesses." (Id.)
The design controls that Excalibur challenges impose some modest
restrictions on the external appearance of adults-only businesses. See
Minneapolis, Minn., Code of Ordinances § 540.410(g)(4). Window areas may
not be covered or made opaque, nor are signs permitted in the windows. Id.
A one square-foot sign is allowed on the door, however. Id. Subsection
(g)(4) works in conjunction with subsection (g)(1), which provides that all
exterior signs must be flat wall signs, and subsection (g)(2), which allows
one square foot of sign area per foot of lot frontage on a street.
Together, these provisions control the outward appearance of adults-only
businesses.
We hold that the restrictions in subsection (g)(4) are narrowly
tailored to further the city's significant interest in alleviating the
adverse impact of sexually oriented businesses on their neighborhoods.
Having before it substantial evidence of the urban blight caused by the
mere presence of these businesses, the city could reasonably conclude that
controlling their outward appearance would lessen the effect they would
have on surrounding commercial and residential neighborhoods. The city
could also reasonably conclude that sign and window regulations would be
an appropriate means by which to achieve this purpose. See Young, 427 U.S.
at 71 (noting that a "city must be allowed a reasonable opportunity to
experiment with solutions to admittedly serious problems"). The sign and
window restrictions do not reach substantially more speech than necessary,
for they are directed only at the signs and window coverings that would
affect the outward appearance of the businesses and impact the surrounding
10
neighborhoods. See Ward, 491 U.S. at 799 n.7 (explaining that a regulation
is narrowly tailored when its focus on the evils sought to be eliminated
does not "restrict[] a substantial quantity of speech that does not create
the same evils").
Excalibur challenges the reasonableness of the restrictions contained
in subsection (g)(4) on several grounds. Excalibur claims that it is
unreasonable to prohibit window signs in favor of signs on a wall.
Further, Excalibur claims that subsection(g)(4)'s prohibition of covered
or opaque windows is inconsistent with subsection (g)(3)'s requirements
that displays of merchandise or entertainment not be visible from the
sidewalk.
We disagree that the sign and window restrictions are unreasonable.
The city could reasonably have concluded that leaving the windows free of
signs and coverings would enhance the outward appearance of, and therefore
minimize the adverse effects caused by, sexually oriented businesses.
Further, the city's regulations are not inconsistent, because Excalibur
could avoid the visibility of its merchandise through unobstructed windows
by turning its display stands so the merchandise does not face the
windows.4 More importantly and to the point, we believe Excalibur invites
us to strike down the city's means of furthering its objectives simply
because the means may be imperfect. We decline this invitation. Although
reasonable people might quibble about the extent to which the regulations
serve the city's significant interests or about whether a better solution
might be available, section 540.410(g)(4) is reasonably related to the
city's significant objectives, and therefore "narrowly tailored" as that
term of art
4
At oral argument, the city explained that Excalibur (operated by Dennis
Buchanan) could comply with both the display regulations in subsection (g)(3) and the
requirement to leave windows unobstructed by signs or covers by placing the backside
of a bookshelf against a window. Dennis Buchanan, who operated Excalibur, was
aware of this means of compliance, because he was present when the city inspector
mentioned this to Buchanan's brother, who also operated an adults-only bookstore in
Minneapolis. Holmberg, 545 N.W.2d at 73.
11
is used in this context. Ward, 491 U.S. at 800.
We have reviewed the cases Excalibur cites to support its claim and
find them to be inapposite, because the regulations in them limit or ban
speech based upon its content. See, e.g., Boos v. Barry, 485 U.S. 312, 329
(1988) (invalidating, as an impermissible content-based regulation, an
ordinance prohibiting speech that was critical of certain foreign
governments); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 515
(1981) (invalidating a sign ordinance banning certain signs by reference
to their noncommercial content, but allowing signs expressing other
noncommercial and commercial speech); Linmark Assocs., Inc. v. Township of
Willingboro, 431 U.S. 85, 93-97 (1977) (invalidating a prohibition on "for
sale" signs as a content-based regulation, because the purpose of the
prohibition was to prevent people acting upon its content); Gilleo v. City
of Ladue, 986 F.2d 1180, 1182-83 (8th Cir. 1993), (invalidating a sign
regulation that disfavored certain types of noncommercial speech and
rejecting a secondary-effects argument because the city made no showing
that the prohibited signs caused any more problems than the permitted
signs) aff'd, 512 U.S. 43 (1994); Goward v. City of Minneapolis, 456 N.W.2d
460, 465-66 (Minn. Ct. App. 1990) (invalidating an ordinance that banned
signs expressing political views but allowed "for rent" signs, "for sale"
signs, and campaign-related signs). Here, however, we are looking at a
content-neutral governmental interest in limiting adverse secondary
effects. The sign and window requirements are reasonably related to the
city's significant governmental interest in minimizing urban blight. Cf.
SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988) (holding that
controls on the outward appearance of adults-only bookstores were content-
neutral regulations narrowly tailored to serve significant governmental
interests), cert. denied, M.E.F. Enters., Inc. v. City of Houston, 489 U.S.
1052 (1989).
Finally, we believe section 540.410 leaves open ample alternative
avenues of communication. Excalibur is free to communicate information on
signs outside of its building, within the modest restrictions imposed under
subsection (g). The regulation
12
provides for a sign on the door and allows flat signs on the wall of the
building, with only some reasonable limitations on their size. These
alternative avenues of communication provide ample opportunity for
Excalibur to express itself. In addition, Excalibur may communicate
information inside the store, limited only in that merchandise may not be
visible from the sidewalk on the street.
Having found that Minneapolis Code of Ordinances § 540.410(g)(4) is
content-neutral, narrowly tailored to further a significant governmental
interest, but also permissive enough to leave open alternative channels of
communication, we hold that the ordinance is a constitutional regulation
of the time, place, and manner of speech.
B. Section 540.410(g)(3)
Excalibur mounts a facial challenge to Minneapolis Code of Ordinances
§ 540.410(g)(3), which prohibits the display of merchandise or pictures in
window areas or any other area that is visible from the sidewalk in front
of the adults-only businesses. Excalibur claims this provision is
5
unconstitutionally overbroad.
The overbreadth doctrine applies in the narrow context of facial
challenges to legislation based upon free-speech rights. This doctrine
represents a departure from
5
The city claims that Excalibur's overbreadth challenge to section 5410.410(g)(3)
is not properly before this court. Excalibur did not include its claim regarding
subsection (g)(3) in its complaint and first briefed the issue in opposition to the city's
motion for summary judgment. We believe the issue is properly before us, however,
because the district court, apparently believing that the parties had impliedly consented
to include it, addressed the issue on the merits. See Fed. R. Civ. P. 15(b) ("When
issues not raised by the pleadings are tried by express or implied consent of the parties,
they shall be treated in all respects as if they had been raised in the pleadings."). This
belief on the part of the district court was reasonable because the city did not raise any
procedural objections to Excalibur's overbreadth argument. Accordingly, the
overbreadth issue has been preserved for appeal.
13
traditional standing rules, see Lujan v. Defenders of Wildlife, 504 U.S.
555, 560-61 (1992) (articulating the standing requirements), and allows a
party like Excalibur to challenge an ordinance on the ground that the
ordinance might be applied unconstitutionally to third parties whose actual
circumstances are not before the court. Bates v. State Bar of Ariz., 433
U.S. 350, 380 (1977). The doctrine developed out of a recognition that
an overly broad statute may chill protected speech and the conclusion that
"the possible harm to society from allowing unprotected speech to go
unpunished is outweighed by the possibility that protected speech will be
muted." Id. Because the overbreadth doctrine has far-reaching
ramifications, however, it is "``strong medicine' that should be employed
only ``with hesitation,' and then ``only as a last resort.'" Upper Midwest
Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389, 1391 (8th Cir.
1985) (quoting New York v. Ferber, 458 U.S. 747, 769 (1982)). To be
facially invalidated under this doctrine, the overbreadth of an ordinance
affecting both conduct and pure speech must be both "real" and
"substantial" in relation to its "plainly legitimate sweep." Ferber, 458
U.S. at 769-70; Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). There is
real and substantial overbreadth when there is "a realistic danger that the
ordinance itself will significantly compromise recognized First Amendment
protections of parties not before the [c]ourt." Members of City Council
v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). We will not strike
down a ordinance for overbreadth if its legitimate reach "dwarfs its
arguably impermissible applications." Ferber, 458 U.S. at 773.
Excalibur claims section 540.410(g)(3) is unconstitutionally
overbroad. Excalibur notes that some businesses classified as adults-only
bookstores may have merchandise for sale that is not pornographic or
sexually oriented. See Minneapolis, Minn., Code of Ordinances § 540.410(b)
(defining an "adults-only bookstore" as "[a]n establishment having as a
substantial or significant portion of its stock in [materials] which are
distinguished or characterized by their principal emphasis on [sexually
oriented matters], or an establishment with a segment or section devoted
to the sale or display of such material . . . ."). Excalibur further
points out that subsection (g)(3)
14
prohibits the display of any merchandise or pictures in a manner that would
be visible from the sidewalk in front of the business. Thus, Excalibur
maintains, subsection (g)(3) is overbroad in that it conceivably prohibits
the display of merchandise such as a Walt Disney video or the Holy Bible.
Excalibur asks us to strike down this provision for the sake of third
parties whose constitutionally protected speech may be chilled by
subsection (g)(3).
Based upon a narrow construction of the ordinance, the district court
found that § 540.410(g)(3) is not overbroad. "It has long been a
fundamental tenet of First Amendment law that in determining a facial
challenge to a statute, if it be ``readily susceptible' to a narrowing
construction that would make it constitutional, it will be upheld."
Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397 (1988). Here,
the district court upheld subsection (g)(3) on the basis that the ordinance
would prohibit the visibility only of sexually oriented materials.
Excalibur contends the district court's construction is untenable, however,
because the Minnesota Court of Appeals has considered an overbreadth
challenge to this provision and did not construe section 540.410(g)(3)
narrowly. See State v. Holmberg, 545 N.W.2d 65, 70 (Minn. Ct. App. 1996).
We reject Excalibur's contention that the Minnesota Court of Appeals
made no effort to construe the ordinance narrowly. In Holmberg, the court
addressed Excalibur's overbreadth argument in the context of a criminal
appeal arising from the same facts as this action. The court described the
speech at issue as commercial and adult (sexually oriented) speech. Noting
the Supreme Court's statements that these categories of speech are entitled
to only limited First Amendment protection, the Minnesota Court of Appeals
held that subsection (g)(3) was not overbroad. Id. at 70. While the court
did not explicitly state it was construing subsection (g)(3) narrowly, the
reasoning in its opinion rests on the assumption that subsection (g)(3)
applies to only commercial and sexually oriented speech. The court's
opinion certainly did not anticipate the ordinance prohibiting displays of
materials outside the scope of these two
15
narrow categories of speech. Accordingly, we will likewise construe the
provision as applying only to displays of commercial speech and sexually
oriented speech.
To the extent that subsection (g)(3) prohibits the display of
commercial speech, that is, speech that "does no more than propose a
commercial transaction," Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (internal
quotations omitted), the ordinance withstands Excalibur's overbreadth
challenge. Commercial speech, as "the offspring of economic self-interest,
is a hardy breed of expression that is not particularly susceptible to
being crushed by overbroad regulation." Central Hudson Gas & Elec. Corp.
v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 564 n.6 (1980). "[B]ecause
the profit motive is thought to be sufficiently compelling to enable such
speech to withstand the chilling effect of an overbroad statute," we have
noted that the overbreadth doctrine does not apply to commercial speech.
Garner v. White, 726 F.2d 1274, 1277 (8th Cir. 1984); see also Waters v.
Churchill, 511 U.S. 661, 670 (1994) (noting that the Supreme Court has not
extended the overbreadth doctrine to the commercial context); Ohralik v.
Ohio State Bar Ass'n, 436 U.S. 447, 462 n.20 (1978) (stating that because
it is not as likely to be deterred as noncommercial speech, commercial
speech does not require the protection of the overbreadth doctrine); Bates,
433 U.S. at 380-81 (explaining that "the justification for the application
of overbreadth analysis applies weakly, if at all, in the ordinary
commercial context"); Van Bergen, 59 F.3d at 1549-50 (rejecting an
overbreadth argument because the affected third-party commercial entities
were capable of bringing the constitutional claim themselves and because
the statute would not likely chill their speech). Likewise, in this case,
we decline to apply the "strong medicine" of the overbreadth doctrine to
strike down subsection (g)(3) for the sake of third parties' commercial
speech. Ferber, 458 U.S. at 769.
What remains then is subsection (g)(3)'s restriction on the display
of sexually oriented materials. As we already explained above in
addressing Excalibur's challenge to the sign and window restrictions in
subsection (g)(4) of the ordinance, section
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540.410 is a content-neutral regulation, enacted to further the city's
significant interest in limiting the urban blight caused by adults-only
businesses. The restriction in subsection (g)(3) prohibiting the
visibility of sexually oriented speech through the windows of these
establishments falls within the legitimate sweep of the ordinance. Thus,
there is nothing overbroad about subsection (g)(3)'s regulation of displays
of sexually oriented speech.
Because commercial speech does not warrant the protection of the
overbreadth doctrine and sexually oriented speech is legitimately regulated
by the ordinance, we will not strike down section 540.410(g)(3) as
unconstitutionally overbroad. Cf. Upper Midwest Booksellers Ass'n, 780
F.2d at 1391-94 (rejecting overbreadth challenge to an ordinance creating
restrictions on displays of any material that is "harmful to minors").
III.
For the above reasons, we affirm the judgment of the district court.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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