721 F.3d 729
6th Cir.2013Background
- Entertainment Productions, Inc. and others challenge Shelby County Ordinance 344 implementing the Tennessee Adult-Oriented Establishment Registration Act of 1998 as applied to adult venues in Memphis.
- Act regulates adult-oriented establishments by requiring licenses and governing four categories of entertainment restrictions (no nudity, prohibited sexual activities, no alcohol on premises, stage and distance requirements).
- Ordinance 344 reflects local adoption and enforcement of the Act; plaintiffs seek injunction and declaration that the regime violates the First Amendment.
- District court granted summary judgment on most First Amendment theories; a bench trial addressed the narrowly challenged provision governing patrons and briefly attired dancers.
- This court reviews de novo the district court’s grant of summary judgment and applies Renton intermediate-scrutiny framework to regulate erotic speech.
- Court previously recognized substantial governmental interest in controlling secondary effects and held evidence need only be reasonably believed relevant, not empirically conclusive.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Act satisfies intermediate scrutiny. | Entm't Prods. argues data are shoddy and regulation suppresses speech | State/County show substantial interest with reasonable, relevant evidence | The statute passes intermediate scrutiny; reasonable basis found |
| Whether data supporting the regulation are too flawed to sustain the regulation. | Linz critique shows studies are methodologically flawed and non-germane | Daubert thresholds not required; broad evidence supports regulation | No genuine dispute; evidence reasonably believed relevant sustains regulation |
| Whether the prohibition on alcohol and related provisions impermissibly reduce speech under Alameda Books. | Alcohol ban and economic choices erase erotic speech | Regulation reduces secondary effects without destroying speech availability | Not a prohibited reduction; proportionality satisfied and speech not extinguished |
| Whether the definitions of “adult-oriented establishments,” “adult cabaret,” and “adult entertainment” are overbroad or vague. | Terms too broad/unclear despite narrowing construction in Entm't Prods. I | Existing narrowing and law-of-the-case govern; Stevens does not require revisiting | No reversible overbreadth/vagueness; law-of-the-case preserved |
| Whether preemption in Section 7-51-1121(b) defeats Shelby County's ordinance. | Local schemes preempt state Act | Text permits local choice to opt into or out of the state regime | No preemption; ordinance valid where locality chose to adopt the Act |
Key Cases Cited
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (intermediate scrutiny for time/place/m manner regulations)
- Alameda Books, Inc. v. City of Los Angeles, 535 U.S. 425 (2002) (requirement that regulation preserves speech while addressing secondary effects)
- Richland Bookmart, Inc. v. Knox County, 555 F.3d 512 (6th Cir. 2009) (evidence need not be empirical; may rely on broad, relevant evidence)
- 729, Inc. v. Kenton County Fiscal Court, 515 F.3d 485 (6th Cir. 2008) (reasonableness of evidence supporting regulation; person bears burden to show unreasonableness)
- Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730 (6th Cir. 2000) (standard for reviewing a state statute's constitutionality)