909 F.3d 99
5th Cir.2018Background
- Louisiana Act No. 395 (2016) amended two alcohol-license statutes to require entertainers whose breasts or buttocks are exposed to be at least 21 years old; prior law allowed 18–20-year-olds to perform semi-nude.
- Plaintiffs: three female erotic dancers aged 18–20 sued the ATC Commissioner under 42 U.S.C. §§ 1983 and 1988, seeking injunctive and declaratory relief claiming First and Fourteenth Amendment and state-constitutional violations.
- The district court preliminarily enjoined statewide enforcement, finding the statute likely unconstitutionally overbroad and vague; the State appealed the injunction.
- The State defended the law as a content-neutral regulation aimed at combating secondary effects (human trafficking, prostitution, assaults, substance abuse) in alcohol-licensed venues.
- The Fifth Circuit applied intermediate scrutiny (content-neutral time/place/manner framework), considered administrative limiting constructions, and evaluated both overbreadth (narrow tailoring) and vagueness (standing and fair notice).
- Holding: the court concluded the Act is neither unconstitutionally overbroad nor facially vague and vacated the preliminary injunction; remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Level of scrutiny | Act is content-based and should trigger strict scrutiny | Act regulates secondary effects of adult entertainment and is content-neutral; apply intermediate scrutiny | Intermediate scrutiny applies (content-neutral/time-place-manner variant) |
| Overbreadth / Narrow tailoring (O'Brien factor 4) | Statute sweeps in "mainstream" expressive nudity (theater/ballet) and burdens more speech than necessary | Statute targets secondary effects in alcohol-licensed erotic venues; limiting construction excludes mainstream arts; narrowly tailored | Not overbroad; limiting construction by enforcement agency is permissible; statute is narrowly tailored enough under O'Brien |
| Vagueness — standing | Plaintiffs contended the phrase "breasts or buttocks are exposed" is undefined and chills performance; all three have standing to raise facial vagueness | State argued some plaintiffs lack standing and that ordinary understanding suffices; any ambiguities are for as-applied challenges | Two plaintiffs (who ceased dancing) have standing; statute gives sufficient fair notice to survive a facial vagueness challenge; as-applied claims remain available |
| Scope / availability of relief | Plaintiffs sought statewide preliminary injunction | State sought reversal of injunction and remand | Preliminary statewide injunction vacated; case remanded for further proceedings |
Key Cases Cited
- Schad v. Borough of Mount Ephraim, 452 U.S. 61 (expressive conduct of nude dancing has First Amendment protection)
- City of Erie v. Pap’s A.M., 529 U.S. 277 (plurality) (nude dancing is expressive but may be regulated for secondary effects)
- Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299 (5th Cir.) (alcohol-related regulations of sexually oriented businesses treated as content-neutral)
- Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471 (5th Cir.) (intermediate scrutiny for similar adult-entertainment regulations)
- United States v. O’Brien, 391 U.S. 367 (time/place/manner test for conduct regulation that incidentally affects speech)
- Ward v. Rock Against Racism, 491 U.S. 781 (narrow tailoring requirement for time, place, manner restrictions does not demand least-restrictive means)
- Broadrick v. Oklahoma, 413 U.S. 601 (overbreadth doctrine requires that unconstitutional applications be substantial relative to legitimate sweep)