EAST BROOKS BOOKS, INC., Plaintiff-Appellant, v. SHELBY COUNTY, TENN., et al., Defendants-Appellees, Robert E. Cooper, Jr., State of Tennessee Attorney General, Intervenor Defendant-Appellee.
No. 08-5958
United States Court of Appeals, Sixth Circuit
Argued: April 20, 2009. Decided and Filed: Nov. 25, 2009.
588 F.3d 360
For all of the reasons set forth above, I would vacate Petrus‘s sentence and remand for resentencing.
Before: BOGGS, MOORE, and SUTTON, Circuit Judges.
BOGGS, J., delivered the opinion of the court, in which SUTTON, J., joined. MOORE, J. (p. 371-72), delivered a separate opinion concurring only in the judgment.
OPINION
BOGGS, Circuit Judge.
This is the second of two related actions challenging Tennessee‘s Adult-Oriented Establishment Registration Act of 1998,
I
The Tennessee Act is described in detail in the related action challenging its constitutionality, Entertainment Prod., Inc. v. Shelby County, Tenn., No. 08-5494, 588 F.3d 372, 2009 WL 4061704 (6th Cir. 2009). This Plaintiff challenges the Tennessee Act on six grounds, some of which duplicate the substance of the claims made by the plaintiffs in Entertainment Productions. Here we address only those claims that were not resolved by our opinion in that case.
II
A
Plaintiff‘s first argument is that the definition of “adult bookstore” violates the Equal Protection Clause. The Tennessee Act regulates “adult-oriented establishments,” which include “adult bookstore[s]“:
“Adult bookstore” means a business that [1] offers, as its principal or predominate stock or trade, sexually oriented material, devices, or paraphernalia, whether determined by the total number of sexually oriented materials, devices or paraphernalia offered for sale or by the retail value of such materials, devices or paraphernalia, specified sexual activities, or any combination or form thereof, whether printed, filmed, recorded or live, and [2] that restricts or purports to restrict admission to adults or to any class of adults. The definition specifically includes items sexually oriented in nature, regardless of how labeled or sold, such as adult novelties, risqué gifts or marital aids;
Equal protection of the laws guaranteed by the
In this case, no “suspect class” is targeted. Nor does Plaintiff argue that a fundamental right associated with the freedom of expression is burdened.1 Plaintiff concedes that this classifiсation needs only a rational basis to survive constitutional scrutiny. Appellant‘s Br. at 21-22. “Under the rational basis standard, a classification ‘must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.‘” Richland Bookmart v. Nichols, 278 F.3d 570, 576 (6th Cir. 2002) (quoting Tuan Anh Nguyen v. INS, 533 U.S. 53, 77, 121 S.Ct. 2053, 150 L.Ed.2d 115 (2001)). “[A] law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous.” Romer, 517 U.S. at 632.
As an initial matter, we note that the bookstores allegedly advantaged by an exemрtion from the Act are probably few in number, if any such establishments exist at all. Tennessee law prohibits the display of adult material “anywhere minors are lawfully admitted.”
Even if the kinds of bookstores Plaintiff describes exist, or, as Plaintiff suggests, will come into existence as operators “scramble to establish a small front room of some minor amount of non-adult materials” into which minors are admitted, Appellant‘s Br. at 23, the “classification” does not lack a rational basis. “Th[e] [rational-basis] standard permits a court to hypothesize interests that might support legislative distinctions, whereas heightened scrutiny limits the realm of justification to demonstrable reality.” Nguyen, 533 U.S. at 77. We can readily hypothesize the state‘s interest in confining regulation to bookstores that meet both definitional criteria. As a matter of practice, sexually оriented businesses, including bookstores, commonly restrict admission to adults. Moreover, only those businesses that cater to adults would restrict access in this manner. Restricted access is thus a reliable indicator that the goods offered or displayed on the premises are of an adult or explicit nature. A prominent display advertising an establishment as an “adult store,” moreover, is a more objective indicator that the store is of the kind the Act aims to regulate, than the mere share of its stock or trade comprised of adult materials. Hence, it is not irrational for the legislature to use the access restriction as a means of identifying those bookstores that are likely to produce adverse secondary effects targeted by the Act.
Our court has adjudicated an analogous challenge to a restriction of business hours, which applied to adult establishments offering live entertainment but excepted those offering “nonlive entertainment.” Deja Vu of Cincinnati, L.L.C. v. Union Twp. Bd. of Trs., 411 F.3d 777, 792 (6th Cir. 2005). We explained that so long as a regulation “furthers a substantial government interest ... and there is no evidence of an impermissible motive on the part of” the legislature, such an exception “is not a cause for concern under rational-basis review because а government may implement its program of reform by gradually adopting regulations that only partially ameliorate a perceived evil.” Ibid. (internal quotation marks and citations omitted); see also Richland Bookmart, 278 F.3d at 577-78 (holding that exempting live cabarets from operating-hour restrictions applicable to adult bookstores was
Thus, we hold that the district court did not err in determining that Plaintiff has not shown a substantial likelihood of succeeding on the merits of the challenge to the “adult bookstore” definition.
B
Plaintiff further claims that the prohibition on the sale, use, or consumption of alcoholic beverages is overbroad and/or not narrowly tailored, and violates the Due Process Clause. While alcohol is not explicitly prohibited in the “Prohibited activities” section of the Act, its salе or use is a specified ground for a revocation, suspension or annulment of a license:
(a) The board shall revoke, suspend or annul a license or permit for any of the following reasons:
...
(5) Any intoxicating liquor or malt beverage is served or consumed on the premises of the adult-oriented establishment, when an operator, employee, entertainer, or escort knew, or should have known, of the violation and authorized, approved, or, in the exercise of due diligence, failed to take reasonable efforts to prevent the violation;
A challenge to this provision on the basis of overbreadth is without merit. “A law is overbroad under the First Amendment if it ‘reaches a substantial number of impermissible aрplications’ relative to the law‘s legitimate sweep.” Deja Vu of Nashville, Inc. v. Metro. Gov‘t of Nashville & Davidson County, 274 F.3d 377, 387 (6th Cir. 2001) (citations omitted). Overbroad laws warrant invalidation “to prevent the chilling of future protected expression,” and thus, “any law imposing restrictions so broad that it chills speech outside the purview of its legitimate regulatory purpose will be struck down.” Ibid. A proscription on alcohol is not in itself a prohibition on any protected expression. Thus, to be persuaded by the claim that prohibiting alcohol in adult bookstores “reaches a substantial number of impermissible applications,” we need to believe that the threat of license suspension fоr alcohol use will deter bookstore owners from offering adult fare in their establishments, or that the prohibition on the consumption of alcohol will keep out customers wishing to exercise their protected right to peruse adult-oriented materials offered by the bookstores. Neither prospect is probable, in view of the likely fact that the primary purpose of adult bookstores is to sell adult materials, and the primary purpose of an average customer in such an establishment is to purchase or view said materials. Plaintiff makes no effort to show that extending the prohibition on alcohol tо adult bookstores actually
While the traditional requirements of standing are relaxed in the context of a facial challenge on overbreadth grounds, Plaintiff must show that it suffered an injury that is “fairly traceable” to the allegedly unconstitutional statute for the purposes of its claim that the alcohol prohibition is not narrowly tailored as applied to Plaintiff. Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348-49 (6th Cir. 2007) (citations omitted). Since no provision of the Tennessee Act has been enforced against Plaintiff‘s bookstores at this time, no injury to Plaintiff is apparent. Plaintiff has not even established that it has or intends to seek a liquor license, or given this court any other reаson to suppose that Plaintiff is likely to lose an adult-establishment license on account of its employees’ or customers’ consumption of alcoholic beverages on the bookstores’ premises. Even assuming, arguendo, that standing requirements do not bar the claim that the Act is not narrowly tailored, Plaintiff did not demonstrate a substantial likelihood of success on the merits.
In the context of content-neutral time, place, or manner regulations, narrow tailoring does not require that the chosen measures be “the least speech-restrictive means of advancing the Government‘s interests.” Turner Broad. Sys. v. FCC, 512 U.S. 622, 662, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). This requirement is satisfied if the regulаtion “promotes a substantial government interest that would be achieved less effectively absent the regulation.” Ibid. (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989)). It requires, “in other words, that the means chosen do not burden substantially more speech than is necessary to further the government‘s legitimate interests.” Ibid. (internal quotation marks omitted). Moreover, in selecting the means to advance the legitimate interest in controlling adverse secondary effects of adult entertainment, governments are entitled to rely on evidence “reasonably believed to be relevant to the problem.” 729, Inc. v. Kenton County Fiscal Court, 515 F.3d 485, 491 (6th Cir. 2008) (citing Renton v. Playtime Theatres, 475 U.S. 41, 51-52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); City of L.A. v. Alameda Books, 535 U.S. 425, 438-39, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002) (plurality); id. at 449, 122 S.Ct. 1728 (Kennedy, J., concurring in the judgment)).
Both Tennessee and Shelby County relied оn numerous reports, studies and judicial decisions with regard to the deleterious secondary effects of adult-oriented establishments. In the Ordinance that adopts the Act in the county, Shelby County notes that the County reviewed, among other evidentiary materials, “a report regarding the adverse health effects of activity commonly occurring in adult bookstores.” Ibid. In view of this evidence, which Plaintiff does not call into doubt, Shelby County may “reasonably believe” that the availability of alcohol on the premises of any adult-oriented establishment—not just those that offer live or nude dancing—would magnify the adverse effects. As this cоurt held in Richland Bookmart, “[i]n finding that sexually oriented businesses as a category are associated with numerous adverse secondary effects, the County reasonably relied on a number of prior judicial decisions finding sufficient evidence to support the connection between adverse effects and adult entertainment when combined with alcohol consumption.” Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 532 (6th Cir. 2009) (emphasis added).
Moreover, this prohibition does not burden substantially more speech than neces-
The rеgulation has no impact whatsoever on the tavern‘s ability to offer nude or semi-nude dancing to its patrons; it seeks to regulate alcohol and nude or semi-nude dancing without prohibiting either. The citizens ... may still buy a drink and watch nude or semi-nude dancing. They are not, however, constitutionally entitled to do both at the same time and in the same place. The deprivation of alcohol does not prevent the observer from witnessing nude or semi-nude dancing, or the dancer from conveying an erotic message.
Ben‘s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 728 (7th Cir. 2003) (citation omitted). Likewise, the deprivation of alcohol does not prevent a bookstore emрloyee from offering sexually explicit materials for sale, nor does it prevent customers from enjoying all the merchandise such businesses have to offer.
Plaintiff claims that the prohibition is unconstitutional for yet another reason: it violates the Due Process Clause because it allegedly imposes strict liability on the owner for any violations by employees or customers. The Act states that a license or permit will be revoked “when an operator, employee, entertainer, or escort knew, or should have known, of the violation and authorized, approved, or, in the exercise of due diligеnce, failed to take reasonable efforts to prevent the violation.” Plaintiff asserts that an establishment‘s license will be revoked if an employee “whose knowledge cannot be imputed to the business itself” fails to take a reasonable effort to prevent alcohol use on the premises. Appellant‘s Br. at 52 (quoting Wal Juice Bar, Inc. v. City of Oak Grove, Kentucky, No. 5:02CV-252-R, 2008 WL 1730293, at *10 (W.D. Ky. 2008)). While the district court did not address this argument, its interpretive premise is without merit. As Shelby County explains, “[a] violation by an employee imperils that employee‘s permit,” but “does not imperil the operator‘s license, unless [the operator] ‘knew, or should have known of the violation and аuthorized, approved, or, in the exercise of due diligence, failed to take reasonable efforts to prevent the violation.‘” Appellees’ Br. at 38-39 (citations omitted; emphasis in original). We agree, as this interpretation of the challenged provision is also compelled by the general standard for revocation of operator‘s licenses and employees’ permits. The Act provides for a revocation or suspension of an operator‘s license on the basis of an employee‘s actions only if an operator “has a duty to supervise conduct on the prеmises,” and “knew, or should have known, of the violation and authorized, approved, or, in the exercise of due diligence, failed to take reasonable efforts to prevent the violation.”
C
Finally, Plaintiff challenges the Act‘s provision on “[p]enalties for violation of part,” which states:
(a) (1) A violation of this part shall, for a first offense, be a Class B misdemeanor, punishable by a fine only of five hundred dollаrs ($500), and shall result in the
suspension or revocation of any license. (2) A second or subsequent violation of this part is a Class A misdemeanor, and shall result in the suspension or revocation of any license.
(b) Each violation of this part shall be considered a separate offense, and any violation continuing more than one (1) hour of time shall be considered a separate offense for each hour of violation.
The district court declined to consider this claim on the merits because it determined that Plaintiff, who has not applied for a license nor had a license revoked, lacked standing to challenge the penalty provision. Plaintiff protests that it need not wait for a license revocation to bring a facial challenge on overbreadth grounds. Appellant‘s Br. at 54-55. “[I]t is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative officе, whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license.” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir. 2000) (quoting Freedman v. Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)); see also Odle v. Decatur County, 421 F.3d 386, 389 n. 2 (6th Cir. 2005). Plaintiff does not exactly articulate a challenge on the grounds of overly broad or unbridled discretion. However, the essence of Plaintiff‘s claim is that the allegedly unconstitutional applications of this provision are substantial relative to legitimate applications because punitive revocation suppresses future protected speech “unconnected to the negative secondary effects cited as legislative justification,” Schultz v. City of Cumberland, 228 F.3d 831, 849 (7th Cir. 2000). Treating Plaintiff‘s arguments charitably, we hold that Plaintiff does have standing to bring this facial challenge to the Act on the basis of its penalty provision.
Constitutional invalidity of prior restraints may result from one or both of “two evils...:(1) the risk of censorship associated with the vesting of unbridled discretion in government officials; and (2) ‘the risk of indefinitely suppressing permissible speech’ when a licensing law fails to provide for the prompt issuance of a license.” Nightclubs, Inc., 202 F.3d at 889 (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 225-27, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990)). The Tennessee Act‘s licensing scheme is a prior restraint on protected expression. Odle, 421 F.3d at 389; see also Belew, et al. v. Giles County Adult-Oriented Establishment Board, et al., No. 1-01-0139, 2005 WL 6369661 (M.D. Tenn. Sept. 30, 2005). Prior restraints are not unconstitutional per se. Richland Bookmart, Inc., 555 F.3d at 533 (citing Odle, 421 F.3d at 389). Where license issuancе is based on explicit and objective criteria, a licensing scheme passes constitutional muster when it “guarantee[s] applicants a prompt final judicial decision on the merits of a license denial and preservation of the status quo while an application or judicial review of a license denial is pending.” Odle, 421 F.3d at 389 (citing Freedman, 380 U.S. at 58; FW/PBS, Inc., 493 U.S. at 229-30; City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 779-80, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004)). Logically, the same procedural guarantees required for license denials are required for license revocations. Furthermore, “[s]ystems of prior restraint ... [must] also pass[] the appropriate level of scrutiny.” Deja Vu of Nashville, Inc., 274 F.3d at 391 (citing Freedman, 380 U.S. at 58-59).
In Odle, we held that the provisions regarding license denial of this very Act are not unconstitutional because they comply with the procedural requirements of prompt judicial review and maintenance of status quo. 421 F.3d at 390-91. Punitive revocation of a license under
Plaintiff asserts that it is not challenging the constitutionality of the licensing scheme on the grounds of inadequate procedural protections for license revocation. See Appellant‘s Rep. Br. at 19, 21-22. At the same time, Plaintiff does not appear to attack the substantive grounds for revocation: Plaintiff does not argue, for example, that the criteria for revocation are insufficiently objective and delegate unbridled authority to officials, or that the criteria for revocation are too numerous to be narrowly tailored to the state interest at stake. Instead, Plaintiff argues in general and opaque terms that the Act is unconstitutional because it employs punitive revocation to control protected future expression rather than to punish violators “in the ordinary sense.” Appellant‘s Rep. Br. at 22.
Insofar as we are able to discern a legal theory behind Plaintiff‘s constitutional attack on the penalty provision, it rests on a misinterpretation of the Tennessee Act. Plaintiff appears to think that the procedural safeguards applicаble to license revocations generally, which are set forth in
We are unable to glean any alternative logic to support Plaintiff‘s claim that the Act is an unconstitutional prior rеstraint because it is not “punishment in the ordinary sense.” Thus, we hold that the district court did not err in finding that Plaintiff did not show a substantial likelihood of success on the merits of this claim.
D
Plaintiff raises other grounds for its facial attack on the Act, all of which are waived and/or addressed by our opinion in the companion case. Plaintiff‘s claim that the definition of “adult cabaret,”
III
For the foregoing reasons, we affirm the district court‘s denial of the preliminary injunction.
KAREN NELSON MOORE, Circuit Judge, concurring only in the judgment.
I believe that the district court did not abuse its discretion by denying the plаintiffs’ motion for a preliminary injunction. I do not join the majority‘s opinion, and I concur solely in the judgment affirming the district court‘s judgment that the plaintiffs have not satisfied the require-
It is important to emphasize that plaintiff waived any challenge at this time to
Notes
Although in some cases the First Amendment is violated because “the underinclusiveness of a law—i.e., the failure of the government to regulate other, similar activity—may give rise to a conclusion that the government has in fact made an impermissible distinction on the basis of the content of the regulated speech,” such a conclusion is not possible where the content of the differently regulated speech is “virtually identical.”
Richland Bookmart v. Nichols, 278 F.3d 570, 575 (6th Cir. 2002) (quoting DLS v. City of Chattanooga, 107 F.3d 403, 412 n. 7 (6th Cir. 1997)). Since Plaintiff‘s claim is predicated on the assumption that the regulated and the unregulated “speech“—i.e., adult merchandise—is “virtually identicаl,” there can be no risk of government‘s invidious discrimination against particular content of speech.