190 F.R.D. 433 | N.D. Ohio | 1999
MEMORANDUM AND ORDER
The plaintiffs bring this action to challenge the constitutionality of the current version of Ohio Administrative Code 4301:1-1-52 (“Rule 52”). After a hearing, this Court issued a temporary restraining order (“TRO”) prohibiting the defendants from enforcing Rule 52 against the plaintiffs. The TRO was extended for an additional ten days; thereafter, the defendants agreed not to enforce Rule 52 against the plaintiffs until this Court ruled on the plaintiffs’ motion for a preliminary injunction. A preliminary injunction hearing was held on April 15, 1999. Between April and July of 1999, the parties gathered and submitted evidence pertinent to the preliminary injunction motion. The defendants also filed a motion to disqualify the plaintiffs’ expert witness or, in the alternative, to strike the witness’ testimony. For the reasons that follow, this Court denies the defendants’ motion to strike (doc. #38), grants the plaintiffs’ motion for a preliminary injunction (doc. #5), and preliminarily enjoins the defendants from enforcing the following portions of Rule 52 against the plaintiffs: §§ (A)(1), (A) (3), (B)(1) (in part), (B)(2), (B)(3), and (B) (7).
I. Facts and Procedural History
This action comes on the heels of a prior case in which this Court invalidated an old version of Rule 52 on overbreadth grounds. See J.L. Spoons, Inc., v. City of Brunswick, 181 F.R.D. 354 (N.D.Ohio 1998). After this Court concluded that the old Rule 52 violated the First Amendment, the Ohio Liquor Control Commission (OLCC) rescinded that version of the law and promulgated a new Rule 52.
4301:1-1-52 ENTERTAINMENT-PROHIBITION AGAINST IMPROPER CONDUCT
(A) DEFINITIONS AS USED IN THIS RULE:
(1) “LEWD ACTIVITIES” ARE THOSE ACTIVITIES (INCLUDING THOSE WHICH ARE ELECTRONICALLY REPRODUCED) THAT CONTAIN LUSTFUL, LASCIVIOUS OR LECHEROUS BEHAVIOR AND INCLUDES, BUT IS NOT LIMITED TO ACTS OF, OR ACTS THAT SIMULATE, SEXUAL INTERCOURSE, MASTURBATION, SODOMY, BESTIALITY, OR ORAL COPULATION.
(3) “NUDITY” IS THE SHOWING (INCLUDING ELECTRONICALLY SHOWING) OF THE HUMAN MALE OR FEMALE GENITALS, PUBIC AREA OR BUTTOCKS (OR ANUS) WITH LESS THAN A FULLY OPAQUE COVERING, THE SHOWING OF THE FEMALE BREAST WITH LESS THAN A FULLY OPAQUE COVERING OF ANY PART OF THE-NIPPLE AND/OR AREOLA, OR THE SHOWING OF THE COVERED MALE GENITALS IN A DISCERNIBLY TURGID STATE.
(B) PROHIBITED ACTIVITIES: NO PERMIT HOLDER, HIS AGENT, OR EMPLOYEE SHALL KNOWINGLY OR WILLFULLY ALLOW IN AND UPON HIS LICENSED PERMIT PREMISES ANY PERSONS TO:
(1) ENGAGE IN ANY LEWD ... ACTIVITIES;
(2) APPEAR IN A STATE OF NUDITY;
(3) TOUCH, FONDLE, OR CARESS THE GENITALS, PUBIC AREA, BUTTOCKS, OR FEMALE BREASTS OF ANY PERSON;
(7) COMMIT IMPROPER CONDUCT OF ANY KIND, TYPE, OR CHARACTER THAT WOULD OFFEND THE PUBLIC’S SENSE OF DECENCY, SOBRIETY OR GOOD ORDER.
Ohio Admin.Code § 4301:1-1-52 (1998) (capitalization in original).
The cabaret operators argue that Rule 52 is a content-based restriction upon their freedom of expression, and, moreover, that Rule 52 is unconstitutionally overbroad and vague on its face. O’Connor and ODPS dispute these allegations and argue that Rule 52 validly regulates conduct rather than speech. After issuing the TRO and considering briefs filed on behalf of the parties, this Court ordered the defendants to show cause as to why the challenged portions of Rule 52 should not be preliminarily enjoined. The defendants submitted a memorandum and evidentiary material in response, and asked that a hearing be conducted on the plaintiffs’ motion for a preliminary injunction. At the time a hearing was scheduled, the defendants moved for additional time in which to file a response to the complaint. This Court granted that request, and, subsequently, the defendants filed a motion to dismiss the case. Because this Court concluded that the case presents a justiciable controversy, and that the complaint states a claim against appropriate parties upon which relief can be granted, this Court denied the defendants’ motion to dismiss.
Thereafter, on April 15, 1999, a preliminary injunction hearing was conducted. The
The defendants presented testimony from the Deputy Director of ODPS as well as an enforcement agent for ODPS. The Deputy Director testified that there are between 24,-000 and 26,000 liquor permit holders in Ohio. He further stated that although ODPS agents receive training on how to enforce Rule 52, they have some discretion in deciding whether it is appropriate to cite an establishment for a violation of the rule. Agent Torrens testified that he recently had visited a number of “gentlemen’s clubs” in southwestern Ohio to determine whether they were in violation of the law. The dancers in those establishments had performed both stage and table dances, removing articles of clothing and receiving tips as they danced. Torrens admitted that the dancers had conveyed an “erotic message.” Although Torrens did not issue any citations in the course of this undercover investigation, he averred that the activities he had witnessed constitute violations of §§ (B)(1), (B)(2), and (B)(3) of Rule 52. He further stated that he did not know whether those activities violated § (B)(7).
The defendants filed a motion to disqualify Hanna as an expert witness or, in the alternative, to strike her testimony. The plaintiffs opposed that motion. In addition, the parties have informed the Court that they have submitted all materials pertinent to the preliminary injunction motion.
II. Motion to Strike
O’Connor and ODPS move to strike Hanna’s expert testimony on the grounds that it lacks foundation and is unreliable under Federal Rule of Evidence 702 and Supreme Court case law. The cabaret operators, on the other hand, argue that Hanna’s credentials in the field of dance are undisputed, and that this Court accepted her testimony in the previous lawsuit.
This Court agrees with the plaintiffs. Hanna possesses a doctorate in anthropology from Columbia University and has been studying the cultural underpinnings of dance for almost twenty years. Hanna Depo., at 5-6. She has authored approximately eighty-seven peer-reviewed articles and six books on the subject of dance. Id. at 6. As a social scientist, Hanna has visited the plaintiffs’ cabarets on a number of occasions, and has observed the activities in at least fifty-two cabarets across the country. Id. at 43. Contrary to the defendants’ assertions, Hanna has not limited her observations to “upscale” cabarets; rather, she has visited a range of erotic dance clubs. Id. at 45. The fact that she has focused on gentlemen’s clubs, and has visited only a handful of places in Ohio,
III. Motion for Preliminary Injunction
In deciding whether to grant a preliminary injunction, a district court must consider and balance four factors: (1) whether
A. Substantial Likelihood of Success on the Merits
The cabaret operators argue that Rule 52 is unconstitutional both on its face and as applied. Each of these arguments will be discussed in turn.
1. Application of Rule 52 to plaintiffs
The plaintiffs, through their dancers and patrons, enjoy ■ “a degree of First Amendment protection” in presenting non-obscene, erotic dancing at their cabarets. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Souter, J., concurring). Although the First Amendment protects erotic dance that is enhanced by nudity, such expressive activity falls “within the outer perimeters of the First Amendment,” id. at 566, 111 S.Ct. 2456, and is generally afforded less protection than, for example, pure political speech.
The plaintiffs argue that Rule 52 constitutes a content-based restriction upon their right to present a non-obscene, artistic message. They point to use of the word “entertainment” in the rule’s title to substantiate their claim that Rule 52 is directed at the content of expression. The state, on the other hand, argues that the rule is a content-neutral mechanism for regulating the harmful effects of certain conduct in combination with alcohol consumption. Viewing the language of Rule 52 as a whole, the regulation cannot be properly described as a content-based restriction upon speech.
Such content-neutral restrictions are analyzed under the four-part test enunciated in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Under this test, the regulation must (1) be within the government’s constitutional power; (2) further an important or substantial governmental interest; (3) be justified by an interest unrelated to the suppression of free expression; and (4) ensure that the incidental restriction on First Amendment freedoms is no greater than is essential to the furtherance of that interest. Id. at 376-77, 88 S.Ct. 1673; Barnes, 501 U.S. at 567, 111 S.Ct. 2456. Moreover, application of a law like Rule 52 to cabarets that provide erotic danc
Applying this analysis to the case at bar, there is no dispute that promulgation of Rule 52 is within the State of Ohio’s police powers. See Barnes, 501 U.S. at 567, 111 S.Ct. 2456. States have inherent power to regulate harmful conduct; moreover, that power is neither dependent on nor augmented by the Twenty-First Amendment. The Supreme Court specifically “has recognized that the States’ inherent police powers provide ample authority to restrict the kind of ‘bacchanalian revelries’ described in the LaRue opinion regardless of whether alcoholic beverages are involved.” Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 515, 116 S.Ct. 1495, 134 L.Ed.2d 711 (1996) (emphasis added) (disavowing the reasoning in California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), that the Twenty-First Amendment conferred a presumption of validity upon such regulations). Further, this Court rejects the defendants’ argument that because “the selling of liquor within the State of Ohio is a privilege and not a right,” the State “may therefore place restrictions on ... conduct in a place where liquor is sold.” The Supreme Court has made abundantly clear that state benefits may not be “conditioned on the surrender of a constitutional right.” 44 Liquor-mart, 517 U.S. at 513,116 S.Ct. 1495.
With respect to the second and third prongs of the O’Brien test, O’Connor and ODPS claim that Ohio is concerned with the “harmful secondary effects of sexually oriented or adult businesses.” Although the defendants have not defined those effects, they submitted the transcript of a public hearing on the promulgation of Rule 52 showing that OLCC commissioners at least considered such things as increased crime rates in areas surrounding sexually-oriented businesses. There is no evidence of increased crime in the locations of the plaintiffs’ businesses,
The fourth O’Brien condition, that the incidental restriction upon freedom of expression be no greater than essential, is satisfied so long as the regulation is “narrowly tailored.” Id. at 572, 111 S.Ct. 2456. That is, Rule 52 must promote Ohio’s interest in curbing harmful secondary effects, and may not result in a burden on speech that is substantially broader than necessary to achieve the State’s goal. See Threesome Entertainment v. Strittmather, 4 F.Supp.2d 710, 720-21 (N.D.Ohio 1998) (O’Malley, J.).
The plaintiffs fail to demonstrate a substantial likelihood of success on the fourth prong of O’Brien except for the prohibitions
Similarly, §§ (A)(3) and (B)(2) work together to prohibit the cabaret owners from allowing their performers to appear without wearing what are commonly known as pasties and G-strings. As the Supreme Court has reasoned, “[dropping the final stitch is prohibited, but the limitation is minor when measured against the dancer’s remaining capacity and opportunity to express the erotic message.” Barnes, 501 U.S. at 587, 111 S.Ct. 2456 (Souter, J., concurring). In addition, as with § (A)(1), there is no evidence that the plaintiffs present anything on their televisions other than the kind of expression that they offer live. Thus, the parenthetical language in (A)(3) regarding the “electronic showing” of nudity has not been demonstrated to be unconstitutional as applied to these plaintiffs. Under the fourth O’Brien factor, the plaintiffs have failed to demonstrate that §§ (A)(3) and (B)(2) are not narrowly tailored to the State’s interests.
Section (B)(3) presents a closer question, as it prevents permit holders from allowing dancers to touch, fondle, or caress specified areas “of any person” — including, technically, their own persons. Although prohibiting such intentional contact between dancers and patrons is narrowly tailored to the State’s interest, preventing dancers from touching their own breasts or buttocks impinges more directly on their ability to convey their message. However, in light of the fact that § (B)(3) is designed to prohibit intentional, overtly sexual contact, this Court is not convinced that the plaintiffs are likely to succeed on their as-applied challenge to § (B)(3). As with the prohibition on simulating sex acts in §§ (A)(1) and (B)(1), the record is devoid of credible evidence that the defendants will use § (B)(3) to ban the type of dancing that occurs at the plaintiffs’ cabarets. Accordingly, the plaintiffs have not demonstrated that § (B)(3) fails the fourth requirement of O’Brien.
The same cannot be said for § (B)(7), which goes well beyond what is necessary to further Ohio’s interest in combating the secondary effects of sexually-oriented businesses. This broad, open-ended prohibition on “improper conduct” could easily be used to curtail the plaintiffs’ constitutionally protected activities. There is nothing in Rule 52 to prevent State agents from selectively deciding that dancers, whose activities violate no other section of the rule, nonetheless “offend the public’s sense of decency, sobriety, or good order.” Indeed, even Agent Torrens
In sum, the cabaret operators have shown a substantial likelihood of success on their claim that § (B)(7) is unconstitutional as applied to them. They have not, however, demonstrated that the remaining sections of Rule 52 are unconstitutional as applied.
2. Facial Challenge
The plaintiffs’ facial challenge is a very different matter. In their facial attack, the cabaret operators argue that Rule 52 is im-permissibly overbroad and vague. This Court finds it probable that the plaintiffs will prevail on their argument that the challenged sections are overbroad, and that § (B)(7) is vague as well as overbroad.
A government regulation is facially overbroad when there exists “a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the court.” City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). To be unconstitutionally overbroad, a regulation’s overbreadth “must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
The plaintiffs’ overbreadth challenge is controlled by the Sixth Circuit’s decision in Triplett Grille. In that ease, the Sixth Circuit invalidated on overbreadth grounds an Akron ordinance that prohibited public displays of nudity and sexual conduct. See Triplett Grille, 40 F.3d at 135-36. The court reasoned as follows:
The Akron public indecency ordinance at issue here prohibits all public nudity, including live performances with serious literary, artistic, or political value. The ordinance makes no attempt to regulate only those expressive activities associated with harmful secondary effects and includes no limiting provisions. Instead, Akron’s wide ban on public nudity sweeps within its ambit expressive conduct not generally associated with prostitution, sexual assault, or other crimes.
Id. at 136. The Sixth Circuit noted that in Barnes, when indicating that there was no overbreadth claim before the Supreme Court, Justice Souter had observed that “[i]t is difficult to see ... how the enforcement of Indiana’s statute against nudity in a production of ‘Hair’ and ‘Equus’ somewhere other than an ‘adult’ theater would further the State’s interest in avoiding harmful secondary effects....” Barnes, 501 U.S. at 585, n. 2, 111 S.Ct. 2456 (Souter, J., concurring); Triplett Grille, 40 F.3d at 136. Because the Akron ordinance in Triplett Grille covered artistic performances as well as adult entertainment, the Sixth Circuit found the ordinance to be overbroad in violation of the First Amendment. Triplett Grille, 40 F.3d at 135-36.
While the current Rule 52 is considerably more tailored than its predecessor version, the regulation still sweeps in a substantial amount of protected expression. With respect to §§ (A)(1) and (B)(1), the most glaring problem is that these sections prohibit the showing of “electronically reproduced” images containing actual or simulated sexual activities. The plaintiffs contend, and the defendants do not dispute, that the prohibition on electronic displays includes televisions, movie theaters, and computers. Thus, §§ (A)(1) and (B)(1) prohibit an Internet café with a liquor license from allowing its customers to view “lustful, lascivious or lecherous behavior” via computers — even though it is now established that use of the Internet enjoys full protection under the First Amendment. See Reno v. American Civil Liberties Union, 521 U.S. 844, 117 S.Ct. 2329, 2344, 138 L.Ed.2d 874 (1997) (no basis for qualifying the level of scrutiny applied to the Internet). Moreover, any bar that has a television set risks violating §§ (A)(1) and (B)(1) if it chooses to air Home Box Office or late night television on the monitor.
Although O’Connor and ODPS assert that the performance areas and the liquor permit areas are often separate in such venues, the cabaret operators have submitted compelling evidence to the contrary. Christy Wright, an employee of Entertainment U.S.A. of Cleveland, Inc., contacted many of the major entertainment venues in Cleveland and learned that they permit audience members to consume alcohol while viewing performances. See Plaintiffs Exh. 3. Moreover, because of the prohibition on “electronically reproduced” activities, a movie theater with a liquor license may violate §§ (A)(1) and (B)(1) every time it shows a “Rated R” film. Based on the foregoing, the plaintiffs have demonstrated a strong likelihood of success on their claim that the ban on lewd activities in § (B)(1), in conjunction with § (A)(1), imper-missibly curtails a substantial amount of protected speech. See Triplett Grille, 40 F.3d at 135-36; Farkas v. Miller, 151 F.3d 900, 905 (8th Cir.1998) (statute’s explicit exception for theaters, concert halls and the like “saves it from being overbroad”).
The prohibition on appearing in a state of nudity contained in §§ (A)(3) and (B)(2) is unconstitutionally overbroad for similar reasons. A variety of artistic performances, including the oft-cited “Hair” and “Equus” as well as smaller productions like Karen Finley’s one-woman shows, are constitutionally protected and involve nudity. Yet Rule 52 makes no exception for such artistic performances. When a regulation sweeps in performances that fall outside the rubric of adult entertainment, the regulation is vulnerable to an overbreadth attack. See Farkas, 151 F.3d at 905; Triplett Grille, 40 F.3d at 135-36. In fact, the only difference between Rule 52’s ban on nudity and the ordinance declared to be overbroad in Triplett Grille is that Rule 52 is limited to venues with liquor licenses. While Rule 52 does not amount to a total ban on public nudity, a ban does not need to be total to be substantially over-broad. The relevant question is whether the regulation “reaches a substantial amount of constitutionally protected conduct,” such that the regulation threatens to chill the exercise of protected expressive activity. City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987); see also United Food & Commercial Workers Union, Local 1099 v. Southwest Ohio Reg'l Transit Auth., 163 F.3d 341, 361 (6th Cir.1998). The plaintiffs in this case have demonstrated that §§ (A)(3) and (B)(2) reach a substantial amount of protected conduct.
This conclusion is especially apparent when one considers that, like § (A)(1), § (A)(3) prohibits “electronically showing” nudity. That is, § (A)(3) prevents a cinema with a liquor license from showing films containing nudity, and prevents a bar with a
The cabaret operators have also shown a probability of success on their claim that § (B)(3) is overbroad. While it does not appear that this section’s ban on fondling or caressing certain anatomical areas reaches a substantial amount of protected expression, the section’s ban on touching does sweep in a variety of expressive activity. First, § (B)(3) covers ballet and modern dance performances in which dancers frequently are required, for example, to “touch” the clothed buttocks of other dancers. Second, the defendants admit that, because the ban on touching includes not touching oneself, § (B)(3) would prevent Michael Jackson from engaging in his famous groin-grabbing dance move.
Section (B)(7) requires little discussion. Its prohibition on committing “improper conduct of any kind ... that would offend the public’s sense of decency” is broad, amorphous, and suffers from the same infirmities as the old version of Rule 52. See J.L. Spoons, Inc. v. City of Brunswick, 181 F.R.D. 354 (N.D.Ohio 1998). The testimony from Agent Torrens reveals that there are no standards to guide the defendants’ discretion in enforcing § (B)(7). Accordingly, the plaintiffs have shown that § (B)(7) is likely to sweep in a substantial amount of protected expression.
Finally, the cabaret operators argue that the challenged sections of Rule 52 are unconstitutionally vague on their face. “It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined” such that a person of ordinary intelligence cannot readily identify whether the enactment proscribes particular conduct. Grayned v. City of Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972). Vague laws are offensive because they lend themselves to “arbitrary and discriminatory enforcement” and, in the First Amendment context, operate to inhibit the exercise of free speech. Id. at 108-09, 92 S.Ct. 2294. “The absence of clear standards guiding the discretion of the public official vested with the authority to enforce the enactment invites abuse by enabling the official to administer the policy on the basis of impermissible factors.” Southwest Ohio Reg’l Transit Auth., 163 F.3d at 359 (citation omitted).
Based on the foregoing standard, the plaintiffs are substantially likely to prevail on the merits of their claim that § (B)(7) is
The other challenged sections of Rule 52 are not so vague that persons of ordinary intelligence cannot readily identify whether their conduct falls within the rule’s proscriptions. The meaning of “lewd activities,” “nudity,” and “touch, fondle, or caress” are sufficiently clear. Although the meaning of “simulate” in § (A)(1) is somewhat open to debate, the word is not so amorphous as to render the section unconstitutionally vague. Moreover, while ODPS trains its agents regarding the applicability of §§ (A)(1), (A)(3), (B)(1), (B)(2), and (B)(3), ODPS agents do not have defined standards for enforcing § (B)(7). Regulatory language need not be mathematically precise; it need only be sufficiently clear that ordinary persons can discern the standard for inclusion and exclusion. Id. at 110, 92 S.Ct. 2294; Southwest Ohio Reg’l Transit Auth., 163 F.3d at 359.
In sum, the cabaret operators have demonstrated a strong likelihood of success on their claim that the challenged sections of Rule 52 are facially overbroad. With respect to their facial vagueness challenge, they have demonstrated a substantial likelihood that only § (B)(7) is unconstitutionally vague.
B. Threat of Irreparable Harm to the Plaintiff
As explained above, the plaintiffs are substantially likely to prevail on their over-breadth challenge, and on their claims that § (B)(7) is unconstitutional both as applied and under the vagueness doctrine. The denial of constitutional rights has been held by numerous federal courts, including the Supreme Court, to constitute irreparable harm. Specifically, “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). It follows, as a matter of law, that the plaintiffs will suffer irreparable harm if O’Connor and ODPS are not enjoined from enforcing the challenged sections of Rule 52.
C. Threat of Substantial Harm to the Defendants
This Court does not find that the defendants will suffer any appreciable amount of harm if they are enjoined from enforcing the pertinent sections of Rule 52 against the plaintiffs. Therefore, the third factor considered regarding the issuance of a preliminary injunction favors the plaintiffs.
D. Whether Injunctive Relief would Serve the Public Interest
Finally, it is in the public interest to prevent the enforcement of unconstitutional laws, and thereby uphold constitutional rights. Therefore, the fourth factor this Court must balance supports the issuance of a preliminary injunction.
E. Scope of Preliminary Injunction
This Court finds that it is not possible to sever the language that the plaintiffs have demonstrated to likely be unconstitutional from the sections in which the language is contained. See Women’s Med. Prof'l Corp. v. Voinovich, 130 F.3d 187, 202 (6th Cir.1997), cert, denied, 523 U.S. 1036, 118 S.Ct. 1347, 140 L.Ed.2d 496 (1998) (under Ohio law, severance may not fundamentally disrupt the statutory scheme or require the insertion of additional words). For example, this Court may not remove the “simulate” language in § (A)(1) without altering the intentions of the rule’s drafters. However, it is appropriate to limit the injunction on enforcing § (B)(1) to that section’s ban on “lewd” activities without encompassing the section’s ban on “disorderly activities.” Sections (A) (1) and (A)(2), respectively, define “lewd activities” and “disorderly activities” separately. In addition, although the language within a particular section may not be sever-able from the section itself, the entire section may be severable from the remainder of the regulation. See id. (consider whether unconstitutional portions stand by themselves). Thus, this Court may enjoin §§ (A)(1), (A)(3), (B) (1) (as it pertains to lewd activities), (B)(2), (B)(3), and (B)(7) without altering the
IV. Conclusion
For the foregoing reasons, this Court denies the defendants’ motion to strike, grants the plaintiffs’ motion for a preliminary injunction, and enjoins the defendants from enforcing §§ (A)(1), (A)(3), (B)(1) (as it pertains to lewd activities), (B)(2), (B)(3), and (B)(7) of Rule 52 against the plaintiffs in this lawsuit and their officers, agents, and employees.
A status call is scheduled on January 31, 2000 at 3:00 p.m., in Chambers, 3402 Key Tower, for the purpose of determining whether any additional proceedings are necessary to reach a final decision on the merits.
IT IS SO ORDERED.
. Because the parties did not indicate that it was appropriate to consolidate the preliminary injunction hearing with the trial on the merits, this Court did not order the trial to be advanced and consolidated in accordance with Federal Rule of Civil Procedure 65(a)(2). Further, as discussed below with respect to § (B)(1) of Rule 52, this Court preliminarily enjoins enforcement of § (B)(1) only to the extent it prohibits "lewd activities.” This Court neither addresses nor enjoins the prohibition of "disorderly activities” in that section.
. Although state agents had considered revising Rule 52 prior to this Court’s invalidation of it, promulgation of the new rule was prompted in large part by this Court's June 15, 1998 ruling. See Defendants’ Response to Show Cause Order, Exh. B, at 3 (hearing on new rule "comes about as a result of [this Court’s] decision on June 15th of 1998 declaring the [old] Rule 52 ... to be unconstitutional”). The prior case and the instant action are related, and this Court takes note of the record in the previous case to the extent that it is relevant to the issues presented here.
. At the time the plaintiffs filed this lawsuit, Mitchell Brown was the director of ODPS. In April of 1999, this Court granted the defendants’ request to substitute Maureen O'Connor, the new ODPS director, as the named party defendant.
. The defendants are incorrect to the extent they claim Hanna "declined an invitation” to study a fourth cabaret in Ohio. Hanna's deposition reveals that she declined an invitation to testify on behalf of the City of Cincinnati because she could not support Cincinnati's argument in the particular case at issue. While the defendants describe Hanna as biased, it is evident that Hanna’s anal-yses would not support the arguments of a city seeking to curtail erotic dancing.
. This Court already has decided that the plaintiffs have standing to challenge Rule 52 both as applied and on overbreadth grounds. See Order Denying Motion to Dismiss, Doc. # 24, at 5-7.
. The defendants fail to recognize that the performances presented at the plaintiffs’ clubs are constitutionally protected expression. Although such expression is of a "lesser magnitude than the interest in untrammeled political debate,” it is still protected by the First Amendment. Barnes, 501 U.S. at 584, 111 S.Ct. 2456 (Souter, J., concurring) (quotation and citation omitted). Moreover, while Rule 52 is primarily concerned with "conduct,” the regulation nonetheless directly impacts the plaintiffs' rights to freedom of speech.
. Although the plaintiffs do not attack the sections in Rule 52 pertaining to "disorderly activities,” drug use, stolen property, or the transfer of food stamps and other benefits, the existence of those sections supports a finding that Rule 52 is a content-neutral regulation.
. The United States Supreme Court may be reassessing the Barnes framework this term in City of Erie v. Pap’s A.M., No. 98-1161, a Supremacy Clause case implicating the applicability of Barnes. At the current time, this Court is bound by the Sixth Circuit’s determination that Justice Souter's concurrence in Barnes constitutes the controlling opinion in that case.
. Indeed, there is no reliable evidence that harmful secondary effects are associated with any businesses in Ohio similar to the plaintiffs’ establishments. Although the defendants’ failure to proffer such evidence gives this Court pause, the binding opinion in Barnes makes clear that the State is not required to affirmatively produce this evidence. Barnes, 501 U.S. at 584-85, 111 S.Ct. 2456 (Souter, J., concurring); see also Triplett Grille, 40 F.3d at 135 (no burden on governmental entity to produce such evidence). And, while the State’s authority to regulate alcohol does not underlie the State’s substantial interest in curbing negative secondary effects, it is not wholly unreasonable for Ohio to conclude that such effects are more likely to occur where alcohol is served.
. This Court attaches little weight to the portion of Hanna’s testimony in which she opined that the prohibition on "simulation” of sex acts would obliterate the erotic dance industry. Hanna based this conclusion on the assumption that ODPS would interpret virtually all erotic dancing as involving the "simulation” of "lewd activities.” This assumption is not supported by the record. Unquestionably, the First Amendment prohibits the defendants from applying Rule 52 in a way that would eradicate erotic dancing. For example, this Court viewed the videotapes the defendants submitted, and appreciates that most, if not all, of the activities depicted therein are constitutionally protected. Absent evidence that O’Connor and ODPS cite cabarets under §§ (A)(1) and (B)(1) for such activities, the plaintiffs cannot prevail on their as-applied challenge.
. Considering the prevalence of liquor permits, and the dearth of evidence that harmful secondary effects are associated with anything other than adult entertainment businesses, there is no reason to force theaters, comedy clubs, and similar establishments to choose between possessing liquor permits or presenting performances that might fall within the proscriptions of Rule 52. The fact that "Hair” may be presented at a venue without a liquor permit is of limited significance when the plaintiffs have shown that, in fact, many major entertainment venues possess liquor permits that include performance areas.
. Rule 52’s prohibition on "electronic” images is one important way in which this case differs from California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972). In addition, the record in LaRue was far different from the record in this case, including the absence of evidence that the LaRue regulation applied to theaters and venues outside the realm of adult entertainment. See id. at 114, 93 S.Ct. 390.
. At the preliminary injunction hearing, this Court noted that professional baseball players violate § (B)(3) — and, arguably, § (B)(1) — every time they readjust their jockstraps. The plaintiffs further noted that hotels are licensed permit premises under Rule 52, and, therefore, that Rule 52 applies to the activities that occur in hotel rooms. While such conduct typically does not involve speech for purposes of the First Amendment, these examples highlight the wide scope of Rule 52.
