83 F.4th 958
5th Cir.2023Background
- Dallas enacted Ordinance No. 32125 (2022) requiring licensed sexually oriented businesses (SOBs) to close from 2:00 a.m. to 6:00 a.m., citing late-night shootings, higher violent crime, and increased 911 calls near SOBs.
- The Dallas Police Department formed a task force (2021) that logged numerous arrests, citations, weapon/drug seizures, and presented 2019–2021 crime data showing a disproportionate share of violent crime and Priority 1 calls between 2:00–6:00 a.m. near SOBs.
- The City presented academic studies and reports from other Texas cities as further support; the city council unanimously adopted the ordinance to reduce crime and conserve public-safety resources.
- Plaintiffs (SOB operators and a trade association) sued, alleging the ordinance is a content-based First Amendment restriction lacking valid empirical support; the district court preliminarily enjoined the ordinance.
- The Fifth Circuit reversed: it held Renton’s secondary‑effects framework remains controlling, found the City’s evidence sufficient under Alameda Books/Renton, determined the time restriction left reasonable alternative avenues for speech, vacated the preliminary injunction, and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Governing First Amendment standard for SOB regulations | Reed requires strict scrutiny for regulations that evaluate speech; Renton is obsolete | Renton/secondary‑effects doctrine governs and permits intermediate scrutiny | Court: Renton remains good law; apply intermediate scrutiny (time/place/manner with secondary‑effects analysis) |
| Reliability/sufficiency of City’s evidence linking SOBs’ late‑night hours to secondary effects | City’s crime data is flawed, inflated, and not time‑specific; academic studies not tailored | City reasonably relied on task‑force experience, 2019–21 data, studies, and other cities’ reports; Renton requires only a reasonable belief | Court: City’s evidence meets the low/deferential Renton/Alameda Books standard; not "shoddy" |
| Whether the 2:00–6:00 a.m. closure leaves reasonable alternative avenues for communication | Closure imposes significant revenue loss and deprives patrons/dancers of protected speech during curtailed hours | Ordinance leaves SOBs open ~20 hours/day; burden is not substantial or business‑destroying | Court: Time restriction leaves ample opportunity; satisfies Renton’s alternatives requirement |
| Entitlement to preliminary injunction | Plaintiffs likely to succeed on merits because ordinance is content‑based and inadequately supported | Plaintiffs cannot show likelihood of success because Renton applies and City carried its evidentiary burden | Court: Plaintiffs did not show likelihood of success; preliminary injunction vacated |
Key Cases Cited
- City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) (establishes secondary‑effects framework for regulating SOBs under intermediate scrutiny)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (explains evidentiary standard—municipality may rely on evidence reasonably believed to be relevant; Kennedy concurrence controls)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (addresses content‑based regulation of signs; relevant to scope of Reed but not dispositive for secondary‑effects doctrine)
- City of Austin v. Reagan Nat’l Advert. of Austin, 142 S. Ct. 1464 (2022) (clarifies limits of Reed and rejects an overly broad reading that would displace longstanding content‑neutral precedents)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (applies Renton approach to adult entertainment regulations)
- Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002) (Fifth Circuit application of Renton’s reasonable‑belief standard)
- N.W. Enterprises, Inc. v. City of Houston, 352 F.3d 162 (5th Cir. 2003) (discusses deference to legislative judgments and evidentiary burden under Renton)