Plаintiffs Adele Buzzetti, doing business under the name of her cabaret, Cozy Cabin, which features topless female dancers, and Vanessa Doe, a topless dancer (using a fictitious name for the purposes of this suit), appeal from the dismissal of their complaint in the United States District Court for the Southern District of New York (John S. Martin, J.) seeking declaratory and injunctive relief against the enforcement of a New York City zoning ordinance. The ordinance regulates the permissible locations of commercial establishments featuring various forms of adult entertainment. The plaintiffs argue that because the ordinance applies to female topless entertainment, but not to male topless entertainment, it violates both the First Amendment’s Free Speech Clause and the Fourteenth Amendment’s Equal Protection Clause. We affirm.
BACKGROUND
Prior to November 1994, New York City’s zoning law did not distinguish between adult entertainment and other commercial establishments. In late 1993, the Department of City Planning (the “DCP”) undertook an “Adult Entertainment Study” (the “DCP study”) to help the City Planning Commission (the “CPC” or the “Planning Commission”) determine whether, like many other
Based on these sources, the DCP study concluded that adult entertainment constituted a serious and growing problem in New York City. It noted that studies from other cities had documented numerous “negative secondary impacts” of such establishments, including “increased crime rates, depreciation of property values, deterioration of community character and the quality of urban life.” DCP Study at 67. These effects were consistent with the experience of those areas of New York City marked by high concentrations of adult entertainment establishmеnts, the study concluded. Even in areas where adult establishments were not heavily concentrated, residents, businesses, and community leaders feared the consequences of possible future proliferation. The DCP study found that there had been a sharp increase in the overall number of adult entertainment establishments in New York City in the previous 10 years, including a 26 percent increase in topless/nude bars. The DCP therefore recommended special zoning restrictions on adult entertainment.
In November 1994, the New York City Council approved a one-year interim zoning moratorium on the opening or enlargement of adult establishments. In March 1995, the DCP and the New York City Council Land Usе Committee filed a joint land use review application to amend the city’s zoning law to establish permanent zoning regulations applicable to adult establishments. After receiving comments from the city’s five borough boards and 39 community boards, and after holding its own public hearings, the CPC approved the proposed permanent regulations on September 18, 1995. Based on the DCP study, other reports, and public testimony, the Planning Commission concluded that there were “substantial adverse secondary effects stemming from the location and concentration of adult uses” in New York, including “the negative impact adult establishments have on economic developmеnt and revitalization; their tendency to decrease property value, thereby limiting tax revenue; [thej impediment [created] to economic activity; their tendency to encourage criminal activity, particularly when the establishments are located in concentration; the proliferation of illegal sex-related businesses; their damaging impact on neighborhood character and residents including children; and the costs associated with maintaining and patrolling areas.” Following additional public hearings, on October 25, 1995, the City Council approved the permanent restrictions, effective immediately. It is- this set of permanent zoning restrictions (“the Zоning Amendment” or “the Amendment”) that are at issue in this case.
The Zoning Amendment does not forbid the operation of any category of business. Instead, it restricts the areas in which certain sexually-oriented businesses may operate. The Zoning Amendment’s regulatory scheme applies to all “adult establishment[s]>” which is defined to mean a commercial establishment, a “substantial portion” of which is used as: an “adult book store,” an “adult theater,” an “adult eating or drinking establishment,” or some “other adult commercial establishment” (or some combination
An adult eating or drinking establishment is an eating or drinking establishment which regularly features any one or more of the following:
(1) live performances which are characterized by an emphasis on “specified anatomical areas” or “specified sexual activities”; or
(3) employees who, as part of their employment, regularly expose to patrons “specified anatomical areas.” and
which is not customarily open to the general public during such features because it excludеs minors by reason of age.
Id. And:
An adult theater is a theater which regularly features one or more of the following:
(2) live performances characterized by an emphasis on “specified anatomical areas” or “specified sexual activities”, and
which is not customarily open to the general public during such features because it excludes minors by reason of age.
Id.
For purposes of this appeal, the following two definitions are pivotal:
“specified sexual activities” are: (i) human genitals in a state of sexual stimulation or arousal; (ii) actual or simulated acts of human masturbation, sexual intercourse or sodomy; or (in) fondling or other erоtic touching of human genitals, pubic region, buttock, anus or female breast.
“Specified anatomical areas” are: (i) less than completely and opaquely concealed: (a) human genitals, pubic region, (b) human buttock, anus, or (c) female breast below a point immediately above the top of the areola; or (ii) human male genitals in a discernibly turgid state, even if completely and opaquely concealed.
Id. (emphasis added).
Based upon these definitions, the Zoning Amendment regulates the locations at which adult establishments may operate. In addition to the general ban on commercial establishments in residentially-zoned areas of New York City, the Amendment completely forbids adult establishments from operating in certain other specified areas of the city. See Zoning Amendment, §§ 32-01, 42-01. Moreover, in those areas where adult establishments are permitted to locate, the establishments, subject to certain exceptions, may not be located within 500 feet of any school, day care center, or house of worship, nor within 500 feet of the edge of most residential areas. See id. In addition, to prevent concentration of adult establishments, the Zoning Amendment generally provides that no adult establishments may be located within 500 feet of any other adult establishment. See id. A one-year transition period (with the possibility of additional extensions of time) is prоvided for non-conforming adult establishments existing at the time of enactment of the Zoning Amendment.
On October 10, 1996, the plaintiffs-appellants filed a complaint alleging that the Zoning Amendment violated the Equal Protection Clause and the First Amendment, and sought injunctive and declaratory relief on that basis. The complaint alleged that Buzzetti’s cabaret, Cozy Cabin, which regularly features barechested female dancers, would be economically unable to relocate as required by the Zoning Amendment and therefore would be forced to close. In addition, the complaint alleged that plaintiff Doe is a topless dancer, and that the Zoning Amendment will restrict her ability tо earn a livelihood, as well as her ability to express herself through her dancing.
The district court denied plaintiffs’ motion for a preliminary injunction, finding that they had not demonstrated a likelihood of success on the merits of their constitutional claims. See Buzzetti v. City of New York, 96 Civ. 7764,
Having denied the plaintiffs a preliminary injunction, the district court, pursuant to the parties’ joint stipulation, entered final judgment denying plaintiffs’ claims for declaratory and injunctive relief and dismissing plaintiffs’ complaint. Plaintiffs brought this appeal contending that the Zoning Amendment violates the First Amendment because its regulation of female topless dancing, but not male topless dancing, constitutes a viewpoint-based restriction on expression supprеssing the viewpoint of “female eroticism.” In addition, they argue, the Zoning Amendment’s differential treatment of male and female topless dancers constitutes a gender-based classification that cannot survive equal protection scrutiny.
DISCUSSION
I. First Amendment Claim
The district court correctly relied on Young and Renton. Both cases involved ordinances substantially similar to New York City’s Zoning Amendment; each ordinance regulated adult business establishments based upon essentially the same definitions of “Specified Sexual Activities” and “Specified Anatomical Areas” as the New York Zoning Amendment, including the differential treatment of male and female toplessness. See Young,
Thus, the Young Court held, “[e]ven though the First Amendment protects communication in this area from total suppression ... the State may legitimately use the content of these materials as the basis for placing them in a different classification from
Renton built directly upon the Young framework. The dissent in Renton argued that the adult zoning ordinance at issue “diseriminate[d] on its face against certain forms of speech based on content” because its restrictions applied only to theaters showing a certain kind of material—i.e., sexually explicit films. See Renton,
In reaching this conclusion, the Supreme Court looked to the overall purpose of the ordinance. Whereas the district court had found the Renton City Council’s “ ‘predominate concerns’ [in enacting the ordinance] were with the secondary effects of adult theaters, and not with the content of adult films themselves,” the court of appeals had applied a more stringent test, under which “if ‘a motivating factor ’ in enacting the ordinance was to restrict respondents’ exercise of First Amendment rights the ordinance would be invalid, apparently no matter how small a part this motivating factor may have played in the City Council’s decision.” Id. (citations omitted). According to the Supreme Court, the court of appeals had erred in not looking to the overall purpose of the ordinance:
The District Court’s finding as to “predominate” intent, ... is more than adequate to establish that the city’s pursuit of its zoning interests here was unrelated to the suppression of free expression. The ordinance by its terms is designed to prevent crime, protеct the city’s retail trade, maintain property values, and generally “protect] and preserv[e] the quality of [the city’s] neighborhoods, commercial districts, and the quality of urban life,” not to suppress the expression of unpopular views.
Id. at 48,
the Renton ordinance is completely consistent with our definition of “content-neutral” speech regulations as those that “are justified -without reference to the content of the regulated speech.” ... The appropriate inquiry in this case, then, is whether the Renton ordinance is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication.
Id. at 48, 50,
The appellants argue that Young and Renton arе distinguishable because neither addressed the issue whether the differential treatment of male and female toplessness constituted an impermissible viewpoint restriction. In considering this argument, we need not decide whether appellants have accurately characterized female topless dancing as conveying, for First Amendment purposes, the “viewpoint” of “female eroticism.” For even assuming the correctness of plaintiffs contention, we do not think that the Zoning Amendment represents an attempt by New York City to disfavor the viewpoint of female eroticism.
We recognize that “[viewpoint discrimination is ... an egregious form of content
We think it clear, however, that the viewpoint of “female eroticism” did not constitute New York City’s “rationale for the restriction[s]” in the Zoning Amendment. As the district court found, “the record does not indicate that the city was aiming to suppress free expression or to disadvantage women who want to perform bareehested, as opposed to similarly situated men. Rather, after careful study the city decided to regulate the zоning rights of adult establishments in an effort to address the negative impact such establishments have on the surrounding community.” Buzzetti,
We therefore uphold the New York ordinance. With respect to the first requirement for upholding content-neutral regulations, the Supreme Court has made clear that concerns similar to those advanced by New York City, such as preventing crime, maintaining property values, and preserving the quality of urban life and the character of city neighborhoods, constitute “substantial governmental interest[s].” See Renton,
The city has adequately documented the evidence supporting its decision to enact a zoning regulation to help counter the negative secondary effects it believed were caused by adult establishments throughout New York City____ Such impacts include increased crime, reduced property value, and a perceived decline in the community character. The negative secondary effects associated with adult establishments and relied on as the impetus for the Zoning Amendment were extensively studied and documented before the Ordinance was adopted____ Defendants’ interest in preventing crime, maintaining property values, and preserving the quality of the city’s neighborhoods is both important and substantial.
Buzzetti,
Finally, there can be no doubt on this record that the Zoning Amendment allows for “reasonable alternative avenues of communication.” The Renton Court noted that because the Renton ordinance left “some 520 acres, or more than five percent of the entire land area of Renton, open to use as adult theater sites,” even though little or none of it
We therefore agree with the district court, under the authority of Young and Renton, that the New York City Zoning Amendment is a content-neutral time, place, and manner regulation, is justified by substantial government interests and allows for reasonable alternative avenues of communication, and, accordingly, does not violate the First Amendment.
II. Equal Protection Claim
Appellants also argue that the Zoning Amendment’s differential regulation of male and female topless dancing constitutes an invidious gender distinction, in violation of the Equal Protection Clause. The Supreme Court has recently “summarize[d] the Court’s current directions for eases of official classification based on gender” as follows:
Fоcusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the preferred justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on over-broad generalizations about the different talents, capacities, or preferences of males and females.
United States v. Virginia,
“It is clear that ‘[g]ender has never been rejected as an impermissible classification in all instances.’” Rostker v. Goldberg,
Thus, the Court has noted that “because the Equal Protection Clause does not demand that a statute necessarily apply equally to all persons оr require things which are different in fact ... to be treated in law as though they were the same, this Court has consistently upheld statutes where the gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated in certain circumstances.” Michael M. v. Superior Court of Sonoma County,
Applying these principles to the Zoning Amendment, we conclude that, for the reasons stated in our discussion of appellants’ First Amendment claim, New York City’s objectives of preventing crime, maintaining property values, and preserving the quality of urban life, are important. We also believe that the Zoning Amendment’s regulation of female, but not male, topless dancing, in the context of its overall regulation of sexually explicit commercial establishments, is substantially related to the achievement of New York City’s objectives.
In this lаtter connection, we note first that under the Supreme Court’s tests for gender classifications, “[t]he relevant inquiry ... is not whether the statute is drawn as precisely as it might have been, but whether the line chosen by the [legislature] is within constitutional limitations.” Liberia,
In short, New York City carefully studied the contours of the problem it was seeking to address and legislated in accordance with its findings. “We simply have no basis on this record for assuming that [New York] will not, in the future, amend its ordinance to include other kinds of adult businesses that [are] shown to produce the same kinds of secondary effects.” Renton,
Moreover, as the district court pointed out in support of its conclusion that the Zoning Amendment was not gender-biased, numerous courts have recognized that the societal impacts associated with female toplessness are legitimate bases for regulation. See, e.g., United States v. Biocic,
Given New York City’s objective, which is not to opрress either gender’s sexuality but to control effects that flow from public reaction to the conduct involved, we must recognize that the public reactions to the exhibition of the female breast and the male breast are highly different. The male chest is routinely exposed on beaches, in public sporting events and the ballet, and in general consumption magazine photography without involving any sexual suggestion. In contrast, public exposure of the female breast is rare under the conventions of our society, and almost invariably conveys sexual overtones. It is therefore permissible for New York City, in its effort to achieve the objectives of the Zоning Ordinance, to classify female toplessness differently from the exhibition of the naked male chest. This does not constitute a denial of equal protection.
Finally, although we need not rest our decision on this basis, we note that, given the city’s findings, regulating both male and female topless entertainment might have burdened more expressive activity than necessary, thus creating potential First Amendment problems. For example, in Schad v. Borough of Mount Ephraim,
Referring to these precedents, the Court pointed out in Renton that “the Renton ordinance is ‘narrowly tailored’ to affect only that category of theaters shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad ... and Erznoznik----” Renton,
In any event, we conclude that appellants have shown no equal protection violation. The Zoning Amendment is substantially related to the City’s important objectives in controlling the secondary effects of adult entertainment, and the City has provided the “exceedingly persuasive” justification for its differential regulation of male and female topless performances required under Virginia. “ ‘[T]he gender classification is not invidious, but rather realistically reflects the fact that the sexes are not similarly situated’ in this case.” Rostker,
CONCLUSION
The judgment of the district court is affirmed.