15 F.4th 1362
11th Cir.2021Background
- Cheshire Bridge Holdings and Cheshire Visuals operate an adult novelty/video store (Tokyo Valentino) in Atlanta and challenged several definitions in the Atlanta City Code as facially overbroad under the First Amendment.
- The challenged definitions: “adult bookstore,” “adult motion picture theater,” “adult mini-motion picture theater,” “adult cabaret,” and “adult entertainment establishment.”
- Atlanta’s zoning scheme bars adult businesses from many residential and lower-commercial districts, imposes 500–1000 foot spacing and buffer rules, and permits adult businesses in certain commercial/industrial districts. The Code’s definitions feed these zoning restrictions.
- The district court granted summary judgment for the City after applying narrowing constructions (e.g., reading “patrons” to connote commercial customers and treating regulations as aimed at principal/regular uses, not isolated events) and concluding any overbreadth was not substantial.
- On appeal the Eleventh Circuit affirmed: the district court’s narrowing constructions were permissible and any conceivable overbreadth was not substantial relative to the provisions’ legitimate sweep.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court improperly rewrote Code terms (e.g., “patron,” “principal uses”) | District court exceeded its role and substantially altered text; Georgia courts have not interpreted these terms | Federal court may apply reasonable narrowing constructions to avoid constitutional problems (Frisby); the constructions here are reasonable | Court: narrowing constructions were permissible and reasonable; did not rewrite the law unlawfully |
| Whether definitions for adult motion picture theaters and mini-theaters are facially overbroad (reach protected expression, noncommercial or isolated uses) | Provisions sweep broadly to cover R-rated/noncommercial/occasional presentations and lack a “safe harbor” | Zoning regulates time/place/manner and targets secondary effects; terms are like Renton and susceptible to limiting constructions; provisions target principal, not isolated, uses | Court: even if some marginal protected speech could be implicated, any overbreadth is not substantial; provisions upheld |
| Whether the “adult bookstore” definition is facially overbroad | Definition covers materials that merely “relate to” specified anatomical areas and could capture protected works | Plaintiffs failed to litigate this claim at summary judgment; City defended the provision | Court: claim was not litigated below and therefore was abandoned; appellate court declined to decide |
| Whether “adult entertainment establishment” (including lingerie/modeling language) is overbroad and captures mainstream, protected venues | Language (e.g., modeling lingerie) can cover protected, non-nude expression like fashion shows or mainstream performances | Provision can be read narrowly; overall zoning context and ability to construe limit scope; any overbreadth is marginal relative to legitimate scope | Court: the lingerie/modeling subpart can be overbroad in isolation, but the overbreadth is not substantial in relation to the provisions’ legitimate applications; upheld as applied/constructed |
Key Cases Cited
- City of Renton v. Playtime Theatres, 475 U.S. 41 (1986) (upholding zoning of adult theaters as permissible time, place, and manner regulation aimed at secondary effects)
- Young v. American Mini Theatres, 427 U.S. 50 (1976) (rejecting facial overbreadth/vagueness attack on similar adult-use zoning; emphasizing narrowing construction and case-by-case handling)
- Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth is strong medicine and must be used sparingly; limiting constructions avoid constitutional problems)
- Frisby v. Schultz, 487 U.S. 474 (1988) (federal courts may adopt narrowing constructions to avoid constitutional invalidation of local ordinances)
- Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (federal courts may not rewrite statutes to conform them to constitutional requirements)
- United States v. Williams, 553 U.S. 285 (2008) (overbreadth requires a substantial amount of protected conduct relative to legitimate applications)
- Schad v. Borough of Mt. Ephraim, 452 U.S. 61 (1981) (struck down zoning that broadly prohibited live entertainment, including protected nude dancing)
- Purple Onion, Inc. v. Jackson, 511 F. Supp. 1207 (N.D. Ga. 1981) (earlier district-court ruling that prior Atlanta adult-business regulations were overbroad)
- Gravely v. Bacon, 429 S.E.2d 663 (Ga. 1993) (Georgia Supreme Court applied a narrowing construction to limit an ordinance to businesses shown to produce undesirable secondary effects)
- United States v. Stevens, 559 U.S. 460 (2010) (first step in overbreadth analysis is construing the challenged law to determine its reach)