American Entertainers, L.L.C. v. City of Rocky Mount, NC
888 F.3d 707
4th Cir.2018Background
- American Entertainers, LLC operates "Gentleman's Playground," an exotic-dancing venue in Rocky Mount, NC; Rocky Mount enforced a 2014 "sexually oriented business" licensing ordinance against it.
- The Ordinance requires a license for "sexually oriented businesses" (defined via "adult cabaret" and "adult live entertainment") and imposes a $100 fee and various denial grounds.
- Two denial provisions challenged: (1) police chief may deny if operation would not comply with "all applicable laws" (§13-273(d)(2)); (2) denial if applicants/principals are under 21 (§13-273(d)(6)).
- American Entertainers asserted: (A) facial overbreadth under the First Amendment (Ordinance could sweep in mainstream performances); (B) unconstitutional prior restraint/unbridled discretion in §13-273(d)(2); (C) Equal Protection/First Amendment violation re: the 18–20 age bar (§13-273(d)(6)).
- District court rejected all claims; the Fourth Circuit affirms the overbreadth and age-challenge rejections but vacates the denial-provision (§13-273(d)(2)) as an unconstitutional prior restraint and remands severability.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Overbreadth: Does licensing ordinance facially chill protected expression by potentially covering mainstream performances? | American Entertainers: Definitions (e.g., "fondling," "erotic touching") sweep into ballet, theater, concerts so statute is overbroad. | Rocky Mount: Ordinance targets secondary effects of adult entertainment; licensing is permissible police-power regulation. | Rejected. Licensing furthers substantial government interest and does not materially burden speech; overbreadth claim fails. |
| 2. Prior restraint/unbridled discretion: Does §13-273(d)(2) unlawfully vest discretion in police chief to deny licenses for failure to comply with "all applicable laws"? | American Entertainers: Provision allows arbitrary, ad hoc determinations of which laws apply and thus vests unbridled discretion. | Rocky Mount: Determinations are objective and drawn from applicants' proposals and existing laws; examples (building, zoning, health) guide chief. | Granted for Plaintiff in part. §13-273(d)(2) is an unconstitutional prior restraint because it lacks "narrow, objective, and definite" standards; provision struck; severability remanded. |
| 3. Age restriction/Equal Protection & 1st Amendment: Does denying licenses to persons under 21 violate rights of 18–20 year olds? | American Entertainers: No principled reason First Amendment wouldn’t protect the right to own/operate; age bar infringes expressive-related rights. | Rocky Mount: Age is non-suspect; restriction rationally relates to legitimate interest (ensuring owners are of drinking age given alcohol at venues). | Rejected. No fundamental right recognized for 18–20 year olds to own such businesses; rational-basis review applies and the age restriction is rationally related to government interest. |
| 4. Severability of invalid provision: Must entire Ordinance fall? | American Entertainers: The unconstitutional denial provision may be inseverable, so remainder should fall. | Rocky Mount: Ordinance contains severability clause; district court should address severability. | Remanded. Court struck §13-273(d)(2) but remanded to district court to decide severability and any further relief. |
Key Cases Cited
- Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969) (licensing schemes must provide narrow, objective, and definite standards to avoid unbridled discretion)
- FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) (licensing of expressive activity implicates prior-restraint safeguards)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (regulation of secondary effects of adult entertainment may survive intermediate scrutiny)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (plurality endorsing secondary-effects justification for regulating adult establishments)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine is disfavored and used sparingly; must be substantial in relation to legitimate sweep)
- United States v. O’Brien, 391 U.S. 367 (1968) (intermediate scrutiny test for regulations burdening speech: important interest, unrelated to suppression, narrowly tailored)
- City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (valid licensing must constrain discretion via standards, judicial/administrative construction, or practice)