Foxxxy Ladyz Adult World Incop v. Village of Dix, Illinois
779 F.3d 706
7th Cir.2015Background
- Village of Dix (pop. ~500) is a dry municipality; Foxxxy Ladyz operates a BYOB nightclub offering fully nude dancing on commercial property in Dix.
- In 2010 Dix enacted three ordinances: (1) ban on open containers in public, (2) ban on public nudity (permits pasties and G-strings), and (3) ban on possession of liquor in public accommodations.
- Dix enacted the ordinances without local studies or evidentiary findings tying nude dancing or BYOB to adverse secondary effects; it cited general interests in public health, safety, welfare, and preserving dry status.
- Foxxxy Ladyz sued, alleging the nudity ban violates the First Amendment and that the alcohol ordinances exceed Dix’s authority under Illinois law; district court dismissed both claims on a Rule 12(b)(6) motion.
- Seventh Circuit reviews de novo and reverses dismissal of the First Amendment challenge to the nudity ordinance (insufficient secondary-effects evidence at motion-to-dismiss stage), but affirms dismissal of the challenge to the alcohol ordinances (within Illinois statutory authority and rational-basis constitutional scrutiny).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Validity of public nudity ban under First Amendment (secondary-effects justification) | Nudity ban burdens expressive conduct; Dix must produce evidence showing nude dancing causes adverse secondary effects in Dix or comparable localities | Ordinance mirrors prior courts-upheld nudity bans; reliance on precedent suffices without local studies | Reversed dismissal: at motion-to-dismiss stage Dix lacked concrete evidence of secondary effects; must present evidence or face further proceedings |
| Authority to enact open-container and public-accommodation alcohol bans and constitutional validity | Dix lacks statutory authority under Illinois Liquor Control Act; if authorized, plaintiffs argue First Amendment requires secondary-effects evidence | Ordinances are authorized by Illinois Municipal Code and ILCA context; apply rational-basis review since bans are general and do not single out expressive venues | Affirmed dismissal: Dix acted within Illinois law; regulations pass rational-basis review and need not show secondary-effects evidence |
Key Cases Cited
- United States v. O’Brien, 391 U.S. 367 (1968) (intermediate scrutiny test for content-neutral regulation of symbolic speech)
- Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (plurality) (nude dancing is expressive but public nudity bans can be content neutral)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (plurality) (upholding public nudity ordinance under O’Brien framework)
- City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986) (municipality may rely on evidence reasonably believed relevant to secondary effects)
- City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425 (2002) (clarifies Renton evidentiary standard; evidence must fairly support municipality’s rationale)
- Annex Books, Inc. v. City of Indianapolis, 581 F.3d 460 (7th Cir. 2009) (municipality must produce tangible evidence linking activity to secondary effects; deficiencies require evidentiary hearing)
- G.M. Enters., Inc. v. Town of St. Joseph, Wis., 350 F.3d 631 (7th Cir. 2003) (analysis of public nudity regulations under O’Brien)
- Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (7th Cir. 2003) (First Amendment does not require availability of alcohol during nude/semi-nude performances)