Jane Doe I v. Juana Marine-Lombard, 905 F.3d 290

Louisiana’s Act No. 395 (2016) amended LA Rev. Stat. §§ 26:90(E) and 26:286(E) to require entertainers whose breasts or buttocks are exposed to be 21 or older at alcohol-licensed establishments; previously dancers could be 18+.
Plaintiffs: three erotic dancers aged 18–20 sued the ATC Commissioner under § 1983 claiming the Act is overbroad, vague, and violates federal and state constitutional provisions; they sought a preliminary injunction.
District court found plaintiffs likely to succeed on overbreadth and vagueness claims and issued a statewide preliminary injunction; State appealed.
Fifth Circuit applied intermediate scrutiny (content-neutral regulation of secondary effects) and evaluated the Act under O’Brien/time-place-manner principles and overbreadth doctrine.
Court rejected district court’s overbreadth/narrow-tailoring conclusion after crediting a limiting construction by the enforcing agency (excluding mainstream theaters/ballets), but held the statute unconstitutionally vague for failing to define what "breasts or buttocks are exposed to view" for 18–20-year-olds.
Because the vagueness finding supported a likelihood of success, irreparable harm, outweighing-of-harms, and public-interest factors, the Fifth Circuit affirmed the injunction.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Level of scrutiny	Act is content-based and should get strict scrutiny	Regulation is content-neutral alcohol/secondary-effects law; intermediate scrutiny applies	Intermediate scrutiny applies (content-neutral regulation of secondary effects)
Narrow tailoring / Overbreadth	Act burdens more protected expression than necessary and sweeps in mainstream performances	Act is narrowly tailored to secondary effects; limiting construction excludes theaters/ballets	District court erred: limiting construction is readily applicable; no substantial overbreadth
Vagueness (facial)	Statute fails to give fair notice what constitutes "exposed to view" for 18–20-year-olds, chilling speech; plaintiffs (two who stopped dancing) have standing	No plaintiff has standing; statute’s meaning (e.g., bikinis) is obvious; administrative construction resolves ambiguity	Plaintiffs (two younger dancers) have standing; statute is unconstitutionally vague for lacking fair notice about minimum coverage
Preliminary injunction factors	Vagueness chills First Amendment rights; injuries irreparable; public interest favors injunction	State’s interest in combating trafficking and secondary effects outweighs harm	Vagueness finding satisfies likelihood of success, irreparable harm, balance of harms, and public interest; injunction affirmed

Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (nude dancing has First Amendment protection)
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000) (nude dancing is expressive but falls on outer ambit of First Amendment; secondary-effects analysis)
United States v. O’Brien, 391 U.S. 367 (1968) (four-factor test for conduct regulation with incidental speech effects)
Rock Against Racism v. Ward, 491 U.S. 781 (1989) (narrow tailoring for time, place, manner restrictions; need not be least restrictive)
Broadrick v. Oklahoma, 413 U.S. 601 (1973) (overbreadth doctrine: substantial number of unconstitutional applications required)
New York v. Ferber, 458 U.S. 747 (1982) (limits of overbreadth doctrine and protection of children-related regulations)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (readily susceptible limiting constructions in vagueness/overbreadth analysis)
Illusions–Dallas Private Club, Inc. v. Steen, 482 F.3d 299 (5th Cir. 2007) (intermediate scrutiny applied to alcohol regulations aimed at secondary effects)
Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir. 2002) (alcohol regulation incidental to expressive conduct)
Village of Hoffman Estates v. The Flipside, 455 U.S. 489 (1982) (administrative interpretation relevant to vagueness challenges)