Showtime Entertainment, LLC v. Town of Mendon
769 F.3d 61
| 1st Cir. | 2014Background
- Showtime challenged Mendon's bylaw restrictions on adult-entertainment size, height, and operating hours as applied to its license application for live nude dancing.
- Mendon created an Adult-Entertainment Overlay District restricting adult-entertainment businesses to four parcels along Milford Street, aiming to address secondary effects.
- Mendon also enacted bylaws prohibiting alcohol sale/consumption at adult-entertainment establishments within the Overlay District and adopted licensing regulations for adult-entertainment venues.
- Showtime's initial license request was denied; on reapplication, it proposed a smaller building, fewer patrons, and no liquor license, and it relied on a traffic study to show negligible impact.
- The district court granted summary judgment for Mendon on all claims related to the bylaws; Showtime appealed challenging First Amendment and Massachusetts Article 16 protections.
- The First Circuit reverses with respect to size/high/hours restrictions, certifies Article 16 questions to the Massachusetts Supreme Judicial Court, and remands for entry of summary judgment in Showtime’s favor on those challenged bylaws.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Facial vs as-applied challenge | Showtime: challenge reaches beyond its license to affect all applications. | Mendon: restraint is facial because applicable only in Overlay District; Showtime lacks as-applied scope. | Facial challenge with limited reach; relief granted for at least some bylaws. |
| Level of scrutiny for zoning bylaws | Bylaws are content-neutral and should be subjected to intermediate scrutiny. | Bylaws are tailored to secondary effects and should survive intermediate scrutiny. | Bylaws fail under intermediate scrutiny; underinclusive and not substantially tied to the asserted interests. |
| Alcohol ban under Article 16 | Article 16 provides broader protection than the First Amendment for adult-entertainment with alcohol. | Alcohol ban consistent with state interests and narrowly tailored under Article 16. | Certification of Article 16 questions to Massachusetts Supreme Judicial Court warranted; unresolved here. |
Key Cases Cited
- Reed v. John Doe No. 1, 561 U.S. 186 (U.S. 2010) (facial and as-applied challenge considerations depend on relief sought)
- Wash. State Grange v. Wash. State Republican Party, 552 U.S. 449 (U.S. 2008) (plainly legitimate sweep requirement for facial challenges)
- McCullen v. Coakley, 571 F.3d 167 (1st Cir. 2009) (plainly legitimate sweep concept for facial challenges (refinement of Salerno))
- Renton v. Playtime Theatres, Inc., 475 U.S. 41 (U.S. 1986) (adult-arena zoning treated as content-neutral when addressing secondary effects)
- National Amusements, Inc. v. Town of Dedham, 43 F.3d 731 (1st Cir. 1995) (underinclusiveness and tailoring in content-neutral regulation)