MALL REAL ESTATE, L.L.C., an Iowa Limited Liability Company, Appellant, v. CITY OF HAMBURG, an Iowa Municipal Corporation, Appellee.
No. 10-0898.
Supreme Court of Iowa.
July 27, 2012.
818 N.W.2d 190
WIGGINS, Justice.
Raymond R. Aranza of Scheldrup Blades Schrock Smith Aranza, P.C., Cedar Rapids, for appellee.
WIGGINS, Justice.
The operator of an establishment offering nude and seminude dance performances sought an injunction restraining a city from enforcing its ordinance regulating nude and seminude dancing. The dis
I. Background Facts and Proceedings.
On December 8, 2008, the Hamburg city council passed chapter 48 of its city code. The ordinance, known as the “Sexually Oriented Business Ordinance,” contains provisions relating to licensing and zoning and imposes a range of regulations upon sexually oriented businesses. The stated purpose of the ordinance is to “regulate sexually oriented businesses in order to promote the health, safety, morals, and general welfare of the citizens of the City, and to establish reasonable and uniform regulations to prevent the deleterious secondary effects of sexually oriented businesses.” Hamburg, Iowa, Code § 48.010.01 (Dec. 8, 2008). The ordinance also states, “[I]t is neither the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the Constitution of the United States of America....” Id.
Businesses subject to the terms of the ordinance include adult cabarets, which the ordinance defines, among other things, as any “business or entity that is with the emphasis on observation or viewing of nude or semi-nude performances whether the performers receive compensation or not, that regularly features persons who appear nude or semi-nude.”1 Id. §§ 48.020.02, .030. The ordinance requires a sexually oriented business to have a valid sexually oriented business license and an employee of a sexually oriented business to have a valid sexually oriented business employee license. Id. § 48.040.01--.02. Further, the ordinance regulates many aspects and activities of sexually oriented businesses, including the consumption of alcohol on the premises, exterior portions of the businesses, signage, hours of operation, the exhibition of sexually explicit films, live nudity, and siting. See id. §§ 48.085-.087, .130–.150, .180, .200.
The City imputes violations of the ordinance to the sexually oriented business licensee. Id. § 48.190. If a sexually oriented business licensee violates the ordinance or knowingly allows an employee to violate the ordinance, then the City may suspend the license of the business and the employee. Id. § 48.090. The ordinance also provides for the revocation of a sexually oriented business license. For example, the City may revoke a sexually oriented business license for activity on the premises related to controlled substances, alcohol, prostitution, acts of specified sexual activity, conduct negatively affecting the health, safety, or welfare of the citizens of Hamburg, or conduct otherwise in violation of the ordinance. Id. § 48.100.
Clarence Judy and Terry Rutledge own Mall Real Estate. Mall Real Estate leases space located at 701 Main Street in Hamburg to the Hamburg Theatre for the Performing Arts, which has been open for nine years and is also known as Shotgun Geniez. Mall Real Estate operates the parking lots surrounding the Hamburg Theatre. Persons who wish to enter the
Judy testified the Hamburg Theatre does its best to ensure the customers and performers comply with the law. He further testified the Hamburg Theatre does its best to ensure minors do not enter. Hamburg Theatre employees have caught minors attempting to enter the club and turned them away. The Hamburg Theatre gives customers younger than twenty-one years old but older than eighteen years old a glow-in-the-dark wristband to signify they are not permitted to consume alcohol. Further, club employees keep watch to make sure no one with a wristband consumes alcohol. Performers must provide identification proving their age, but are otherwise free to perform in whatever manner they wish provided they comply with any applicable laws while in the Hamburg Theatre.
Judy estimates in excess of 112,000 customers have been to the Hamburg Theatre during the past nine years. The Hamburg Theatre has never been cited by police for unsightly litter, and no one in the club has been cited for engaging in sex acts on the premises or for purchasing or selling drugs. However, on one occasion the police cited a minor as a minor in possession of alcohol at the club. In addition, a seventeen-year-old once danced on stage, but the Hamburg Theatre was acquitted of any wrongdoing. There was also one case of alleged prostitution, which was dismissed. Seven or eight incidents involving the club have resulted in police reports. In defense of the Hamburg Theatre, Judy constructed a list of all calls to police that had been made within 1000 feet of the business since 2002, noting that only a few actually pertained to the Hamburg Theatre.
Shortly after the City adopted the ordinance, Mall Real Estate filed a petition seeking a declaratory judgment declaring that the City‘s ordinance does not affect or apply to the Hamburg Theatre and that the ordinance is unconstitutional. Mall Real Estate further requested a temporary injunction restraining Hamburg from enforcing the ordinance against the Hamburg Theatre.
The district court denied Mall Real Estate‘s request for declaratory and injunctive relief, holding the ordinance affected and applied to the Hamburg Theatre and was constitutional. Mall Real Estate filed a notice of appeal. The district court stayed enforcement of the ordinance pending the outcome of this appeal. On appeal, Mall Real Estate argues the ordinance does not apply to the Hamburg Theatre, conflicts with state law, and violates the Iowa Constitution. Mall Real Estate bases its preemption argument on its assertion that the Hamburg Theatre is a theater for the purposes of
Because the issue of whether state law preempts the City‘s ordinance is dispositive of this appeal, we need not reach the constitutional issues raised.
III. Scope of Review.
We review whether state law preempts a municipal ordinance for correction of errors of law because it is a question of statutory construction. Hensler v. City of Davenport, 790 N.W.2d 569, 578 (Iowa 2010).
IV. Whether the Iowa Code Preempts the Hamburg Ordinance.
Mall Real Estate asserts the Hamburg ordinance conflicts with state law because
In order to provide for the uniform application of the provisions of this chapter relating to obscene material applicable to minors within this state, it is intended that the sole and only regulation of obscene material shall be under the provisions of this chapter, and no municipality, county or other governmental unit within this state shall make any law, ordinance or regulation relating to the availability of obscene materials. All such laws, ordinances or regulations shall be or become void, unenforceable and of no effect on January 1, 1978. Nothing in this section shall restrict the zoning authority of cities and counties.
Id. § 728.11 .
In construing statutes, our goal is to ascertain legislative intent. Auen v. Alcoholic Beverages Div., 679 N.W.2d 586, 590 (Iowa 2004). In doing so, we consider the language the general assembly used in the statute, the object the general assembly sought to accomplish, and the wrong the general assembly sought to remedy. Swainston v. Am. Family Mut. Ins. Co., 774 N.W.2d 478, 482 (Iowa 2009). When the general assembly places preemption language in more than one relevant section of the chapter, we must consider both sections together in order to ascertain the general assembly‘s intent. See Feld v. Borkowski, 790 N.W.2d 72, 83-85 (Iowa 2010) (Appel, J., concurring in part and dissenting in part) (explaining that we may examine an issue that is inextricably intertwined with another issue). Here, the general assembly has placed preemption language in
The Iowa Constitution was amended in 1968 to provide municipal governments with limited powers of legislative home rule.
Municipal corporations are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly.
The rule or proposition of law that a municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state. Id. “The purpose of the home rule amendment was to give local government the power to pass legislation over its local affairs subject to the superior authority of the legislature.” Hensler, 790 N.W.2d at 584. Thus, “[u]nder legislative home rule, the legislature retains the unfettered power to prohibit a municipality from exercis
Courve have developed the doctrine of preemption to determine whether the legislature permits or prohibits municipal action. Id. Under the doctrine, municipalities generally cannot act if the legislature has directed otherwise. Id. A municipality, however, may set standards “more stringent than those imposed by state law, unless a state law provides otherwise.”
We believe the Iowa Code expressly preempts the City from fully enforcing its ordinance. “Express preemption applies when the legislature has explicitly prohibited local action in a given area.” Id. Express preemption is consistent with the notion that “[l]imitations on a municipality‘s power over local affairs are not implied; they must be imposed by the legislature.” Seymour, 755 N.W.2d at 538 (quoting City of Des Moines v. Gruen, 457 N.W.2d 340, 343 (Iowa 1990)).
We have previously construed
After looking at the legislative history of
Thus, the scope of
The Hamburg ordinance does not hide its intent to regulate obscene material. It states, “[I]t is neither the intent nor effect of this ordinance to restrict or deny access by adults to sexually oriented materials protected by the First Amendment to the Constitution of the United States of America.” Hamburg, Iowa, Code § 48.010.01. Because the ordinance does not seek to regulate materials protected by the First Amendment, it must necessarily regulate unprotected material. The category of unprotected speech involved here is obscenity. See Miller v. California, 413 U.S. 15, 23, 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419, 430 (1973) (“This much has been categorically settled by the Court, that obscene material is unprotected by the First Amendment.“).
The inquiry now turns to whether the general assembly intended
Even though the City does not argue that
After our decision in Chelsea Theater and prior to the passage of the Hamburg ordinance, the general assembly passed three bills amending
In 1997, the general assembly expanded the scope of persons who could be found guilty of a serious misdemeanor from an owner, manager, or person who exercises direct control over a business holding a liquor license or beer permit to an owner, manager, or person who exercises direct control over a business requiring a sales tax permit. 1997 Iowa Acts ch. 125, § 3 (codified at
These amendments make three important facts clear. First, since
Nonetheless, an argument can be made that the general assembly did not intend
[A]ny book, magazine, newspaper or other printed or written material or any picture, drawing, photograph, motion picture, or other pictorial representation or any statue or other figure, or any recording, transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines or materials.
It is not unusual for an obscenity statute to explicitly include live performances within the scope of the term “material” or “materials.” See, e.g., Waterman v. Farmer, 84 F.Supp.2d 579, 580-81 (D.N.J. 2000) (interpreting a New Jersey statute that included live performances in the definition of “sexually oriented material“); State v. Sorabella, 277 Conn. 155, 891 A.2d 897, 930 (2006) (interpreting a statute defining “child pornography” as “any material involving a live performance or photographic or other visual reproduction of a live performance which depicts a minor in a prohibited sexual act“); Ferrari v. Commonwealth, 448 Mass. 163, 859 N.E.2d 808, 810 & n. 6 (2007) (noting the definition of “matter” includes live performances for the purposes of a criminal statute prohibiting the dissemination of certain material to minors); State v. Foglia, 182 N.J.Super. 12, 440 A.2d 16, 16 (N.J.Super.Ct.App.Div.1981) (interpreting a statute criminalizing the sale of obscene material to minors where the definition of “obscene material” included “live performance“); State v. Bahl, 164 Wash.2d 739, 193 P.3d 678, 689 n. 8 (2008) (en banc) (noting the statutory definition of “erotic materials” includes live performances). Although
In order to go outside of the plain language of
A statute is ambiguous if reasonable minds could differ or be uncertain as to the meaning of the statute. Ambiguity may arise from specific language used in a statute or when the provision at issue is considered in the context of the entire statute or related statutes.
Sherwin-Williams Co. v. Iowa Dep‘t of Revenue, 789 N.W.2d 417, 424-25 (Iowa 2010) (citations and internal quotation marks omitted). We also interpret statutes in such a way that portions of it do not become redundant or irrelevant. State v. Gonzalez, 718 N.W.2d 304, 308 (Iowa 2006). Additionally, we do not place undue importance on any single or isolated portion, but instead consider all parts of an enactment together. Swainston, 774 N.W.2d at 482. The general assembly did not enact
On its face,
First, application of the canon would lead to an absurd result that would thwart the legislative intent. See Harden v. State, 434 N.W.2d 881, 884 (Iowa 1989) (“We seek a reasonable interpretation that will best effect the purpose of the statute and avoid an absurd result.“). In chapter 728, the general assembly prohibited any person from disseminating obscene material to minors. See
Second, “or other ... materials” must necessarily mean something unique from the rest of the defining terms. The list of items contained in
Third, the uniformity provision in
Finally, the underlying issues in this case involve delicate issues of free speech under the Iowa Constitution. The doctrine of constitutional avoidance counsels us to construe
Accordingly, we find the general assembly intended to include live performances in the definition of “material” for the purposes of chapter 728. Therefore, to be consistent with our construction of
V. Disposition.
Having found that state law preempts the City of Hamburg‘s ordinance because the ordinance attempts to regulate nude dancing, we reverse the judgment of the district court and remand the case to the district court with instructions to enter an order enjoining the City of Hamburg from enforcing its ordinance against Mall Real Estate.
REVERSED AND REMANDED WITH INSTRUCTIONS.
All justices concur except CADY, C.J., and WATERMAN, J., who dissent separately and MANSFIELD, J., who takes no part.
CADY, Chief Justice (dissenting).
I respectfully dissent from the decision by the majority.
Our legislature intended to regulate obscenity by regulating “obscene material,” and it sought to do so exclusively through express preemption. See
The legislature defined the term “material” by listing five categories of material containing twenty-one or more specific items:
- “[A]ny book, magazine, newspaper or other printed or written material“;
- “[A]ny picture, drawing, photograph, motion picture, or other pictorial representation“;
- “[A]ny statue or other figure“;
- “[A]ny recording, transcription, or mechanical, chemical, or electrical reproduction“;
- “[A]ny other articles, equipment, machines or materials.”
See id.
Two intrinsic aids are commonly used to find the legislative intent of statutes that define a particular concept by using a list of descriptive words. The first aid is the noscitur a sociis doctrine, which provides that the meaning of ambiguous words is determined by reference to their relationship with associated words and phrases. Peak v. Adams, 799 N.W.2d 535, 547-48 (Iowa 2011) (describing noscitur a sociis as a canon of construction that “summarizes the rule of both language and law that the meanings of particular words may be indicated or controlled by associated
The noscitur a sociis doctrine is accepted in the law to discern legislative intent because it reflects the accepted way people write and speak about a particular topic. Good communication is built by weaving a set of words together to create what linguists call semantic fields, words that share a common meaning and allow the topic to be understood as a connected text rather than a disconnected thought. Just as good writing seeks to eliminate unrelated words because they confuse the message, good interpretation seeks to construe ambiguous words as connected, not unrelated.
If, for the moment, the disputed word in this case—materials—is removed from the twenty-one-word list of
The second intrinsic aid, ejusdem generis, is a variation of the first and describes a common drafting technique that allows lawmakers to capture all of the intended applications of the statute. See 2A Singer § 47:17, at 357, 370-73. This doctrine attempts to reconcile the incompatibility between specific and general words so that all parts of a statute are construed together, and no words are rendered superfluous. Id. at 375-76. This maxim treats specific words as expressing a class or topic and a general word within the same group as a means of extending the statute to include everything within the class, though not specifically listed. Id. § 47:18, at 378. The doctrine is not just semantics and formal logic. Id. at 382. Instead,
[i]t rests on practical insights about everyday language usage. When people list a number of particulars and add a general reference like “and so forth,” they mean to include by use of the general reference not everything else but only others of the like kind.
Id.
Like the first doctrine, this maxim also reveals our legislature did not intend to include the act of dancing within the definition of material. The definition lists only inanimate mediums and concludes with a catchall category of “any other arti
I acknowledge that neither of these intrinsic aids should be followed by courts when there is a clear, contrary legislative intent. Yet, there is nothing about the statute in question or any other rules of construction that manifest an intent to regulate the subject of obscenity in the live performing arts. The contrary conclusion by the majority is, in its best light, unpersuasive.
First, reasonable people would agree that our legislature could logically choose to regulate the distribution of inanimate obscene materials without also regulating obscenity in the live performing arts. The legislature could, of course, preempt both areas, but the two are not so compatible that a court interpreting a preemption statute could conclude it would be absurd to only preempt local regulation of inanimate obscene materials and not obscene live dancing. In fact, it makes perfect sense for our legislature to regulate the obscene pornography industry statewide but permit local government to participate in the regulation of live nude dancing in their communities. Live nude dancing raises problems quite different from traffic in inanimate obscene pornography. Additionally, it would make perfect sense for our legislature to regulate the distribution of obscene pornography to minors in the form of film shown by movie theaters and to leave it to local government to regulate access by minors to places that provide live adult entertainment. Contrary to the claim of the majority, such an approach would not mean our legislature would have intended to permit minors to view live obscene sex acts by excluding live dancing from the subject in the preemption. Preemption is a doctrine of legislative authority to exclusively regulate an area. It does not express a legislative intent to permit conduct that falls outside of the preempted area. For example, our legislature did not intend to countenance overtime parking in society by failing to include state provisions governing overtime parking within its laws governing the operation of motor vehicles.
Thus, for the majority to conclude it would be absurd for our legislature to have left nude dancing out of its preemption scheme is itself absurd. Additionally, the absurd-results doctrine followed by the majority must only be utilized sparingly due to the risk of displacing legislative policy with judicial policy based on speculation. Kolzow v. State, 813 N.W.2d 731, 739 (Iowa 2012) (“We use the absurd results doctrine sparingly because of the risk of displacing legislative policy.“); 2A Singer § 45:12, at 105-07. When there is no basis to claim an absurd result, there is no claim to use the doctrine.
Second, the list of items in
Third, words in a statute are to be given their common meaning. Severs v. Abrahamson, 255 Iowa 979, 981, 124 N.W.2d 150, 152 (1963). There is no legal principle that allows the secondary meaning of a word to change the topic of a statutory definition, especially when the secondary meaning has little, if any, connection to the new topic sought to be introduced. In this case, the word “materials” may have a secondary meaning relating to the repertoire of a performer, but the meaning of “repertoire” is itself a torturous way to express an intent to include live nude dancing. Nevertheless, the legislature would not use a word with a primary meaning consistent with the other associated words in a statutory definition to create a new topic in the definition derived from a secondary meaning of the word. In other words, provisions of chapter 728, the legislature expressly criminalizes public indecent exposure by persons.
Fourth, courts must attempt to construe statutes in a way that does not render them unconstitutional. 2A Singer § 45:11, at 80-81. This approach means courts are to interpret a statute in a way that supports its constitutionality when the statute is open to two reasonable constructions. See id. In this case, the word “materials” in
Fifth, it is of no value to string together cases from other jurisdictions where legislatures have specifically defined obscenity to include live performances. As previously indicated, it would be a reasonable approach for a state to regulate both inanimate obscene material and live nude dancing. Nevertheless, it would be just as reasonable to regulate obscenity using a combination of state and local government regulations. The question for us in this case is to determine the approach taken in Iowa, not the approach taken in other states. Any reference to a string of authorities from other states appears facially impressive, but is totally irrelevant.
Finally, in Dingman v. City of Council Bluffs, 249 Iowa 1121, 1127, 90 N.W.2d 742, 746-47 (1958), we said the plain, obvious, and rational meaning of a statute is always preferred over any curious, narrow, hidden sense that is only uncovered by ingenuity and intellect. 249 Iowa at 1127, 90 N.W.2d at 746-47. The majority has failed to heed this admonition. Our legislature did not intend for the word “materials” to mean nude, erotic dancing. A square peg simply will not fit into a round hole.
Therefore, I would conclude state law did not preempt Hamburg‘s ordinance. The Iowa legislature did not deprive local governments of the ability to regulate live nude dancing. Therefore, we should ad
WATERMAN, Justice (dissenting).
I respectfully dissent from the majority opinion. I join in the preemption analysis of Chief Justice Cady‘s dissent, but would reach the merits and conclude the City of Hamburg‘s ordinance restricting conduct at defendant‘s strip club, Shotgun Geniez, is constitutional under well-settled precedent. The majority erroneously deprives local governments of the ability to regulate such establishments in our state and unfairly blames the legislature for this outcome. As Chief Justice Cady explains, live nude dancing simply does not fall within the definition of “obscene materials” in
The strip club challenges the ordinance under article I, section 7 of the Iowa Constitution, but offers no persuasive reason to diverge from settled federal precedent in applying the Iowa constitutional protections for speech and expressive conduct. I believe the protection for the expressive conduct at issue is the same under the Iowa and Federal Constitutions. See In re Adoption of S.J.D., 641 N.W.2d 794, 802 (Iowa 2002) (“The Iowa Constitution also protects free speech and imposes the ‘same restrictions on the regulation of speech as does the Federal Constitution.‘” (quoting State v. Milner, 571 N.W.2d 7, 12 (Iowa 1997))); Des Moines Register & Tribune Co. v. Osmundson, 248 N.W.2d 493, 498 (Iowa 1976) (“We believe the federal and state constitutional provisions, which contain almost identical language, impose the same limitation on abridgement of freedom of the press.“).
Although federal precedent makes clear nude dancing is protected expressive conduct, it is “within the outer perimeters of the First Amendment” and only “marginally so.” Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504, 511 (1991) (plurality); accord City of Erie v. Pap‘s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 1391, 146 L.Ed.2d 265, 278 (2000) (plurality) (stating nude dancing “falls only within the outer ambit of the First Amendment‘s protection“). The expressive conduct at issue in this case, including pole dancing, is a far cry from the heart of the First Amendment—protection for political speech and debate to better inform the citizenry for self-government. See Knox v. Serv. Emps. Int‘l Union, Local 1000, 567 U.S. 298, 132 S.Ct. 2277, 2288, 183 L.Ed.2d 281, 296 (2012).7
The Supreme Court has twice upheld state laws requiring nude dancers to wear “G-strings” and “pasties,” concluding the restrictions imposed de minimis infringement on marginally protected speech while legitimately targeting undesirable secondary effects associated with sexually oriented business. See Pap‘s A.M., 529 U.S. at 294, 120 S.Ct. at 1393, 146 L.Ed.2d at 281 (reasoning a ban on total nudity arguably “has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch is dropped,” but “[a]ny effect on the overall expression is de minimis“); Glen Theatre, Inc., 501 U.S. at 571, 111 S.Ct. at 2463, 115 L.Ed.2d at 514 (reasoning the G-string and pasties requirement “does not deprive the dance of whatever erotic message it conveys“).
I believe Iowa local governments may enact restrictions designed to limit undesirable secondary effects such as prostitution, assault, and drug distribution associated with strip clubs in their own communities, unless the restrictions “so interfere[] with the message that it essentially bans the message.” Pap‘s A.M., 529 U.S. at 293, 120 S.Ct. at 1393, 146 L.Ed.2d at 280. The City of Hamburg‘s ordinance restricts total nudity in a manner upheld by the Supreme Court. Id. The ordinance also prevents the strip club from selling alcohol, which is unrelated to the erotic message. The ordinance further requires sexually oriented business to close by 2 a.m., restricts consumption of alcohol brought in by patrons, requires dancers to perform on a stage at least six feet from customers, and limits how customers can properly tip dancers. In my view, all these restrictions pass constitutional muster.
The strip club complains the City‘s six-foot distance requirement “kills the business model.” No doubt a customer‘s sensory appreciation of the dancer‘s artistic message is enhanced by the grinding physical contact of a vigorous lap dance. But, I see no constitutional right to give a paying customer a lap dance. If it is the “artistic expression” that is constitutionally protected, the City may impose reasonable time, place, and manner restrictions to curb undesirable secondary effects. A six-foot minimum distance requirement still allows a customer a full view of the dancing without the heightened risk of secondary effects encouraged by physical contact.
Numerous federal appellate courts have held restrictions like Hamburg‘s permissibly impose incidental and minimal burdens on the expressive message of nude dancing and constitute a legitimate effort to control the negative secondary effects associated with sexually oriented businesses. See 84 Video/Newsstand, Inc. v. Sartini, 455 Fed. Appx. 541, 561-62 (6th Cir.2011), cert. denied, 566 U.S. —, 132 S.Ct. 1637, 182 L.Ed.2d 234 (2012) (upholding no-touch and hours restrictions against First Amendment challenge); Fantasy Ranch Inc. v. City of Arlington, 459 F.3d 546, 562 (5th Cir.2006) (“[W]e hold that the effect on the overall expression is de minimis, as the City of Arlington has muted only that portion of the expression that occurs when the six-foot line is crossed, while leaving the erotic message largely intact.“); G.M. Enters., Inc. v. Town of St. Joseph, 350 F.3d 631, 638 (7th Cir.2003) (upholding a no-touching requirement because “a minimal physical buffer between patrons and dancers does not reduce the availability of nude dance entertainment“); Wise Enters., Inc. v. Unified Gov‘t of Athens-Clarke Cnty., 217 F.3d 1360, 1363-65 (11th Cir.2000) (upholding ordinance preventing sale of alcohol in sexually oriented business); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1364-65 (11th Cir.1999) (upholding an hours-of-operation and square-foot limitation because the restrictions “do not directly regulate[] the expressive conduct that is the basis of the plaintiffs’ First Amendment challenges: nude dancing“); Farkas v. Miller, 151 F.3d 900, 905 (8th Cir.1998) (rejecting First Amendment challenge to Iowa statute requiring pasties and G-strings). These authorities are persuasive and should be followed when applying our Iowa constitutional protections to this case.
For these reasons, I would affirm the district court ruling upholding the City of Hamburg ordinance.
DAVID WIGGINS
JUSTICE OF THE SUPREME COURT OF IOWA
Notes
The showing of the human male or female genitals, pubic area, vulva, anus, anal cleft, or cleavage with less than a fully opaque covering, or the showing of the female breast with less than a fully opaque covering of any part of the nipple and areola. Id. § 48.020.14. Finally, the ordinance defines “semi-nude or state of semi-nudity” as: A state of dress in which opaque clothing covers no more than the genitals, anus, anal cleft, cleavage, pubic area, vulva, as well as the nipple and areola of the female breast, as well as portions of the body covered by supporting straps or devices. This definition shall not include any portion of the cleavage of the human female breast exhibited by a dress, blouse, skirt, leotard, bathing suit, or other wearing apparel provided that the areola and nipple are not exposed in whole or in part. Id. § 48.020.18.
Our cases have often noted the close connection between our Nation‘s commitment to self-government and the rights protected by the First Amendment. See, e.g., Brown v. Hartlage, 456 U.S. 45, 52, 102 S.Ct. 1523, 1528, 71 L.Ed.2d 732, 740 (1982) (“At the core of the First Amendment are certain basic conceptions about the manner in which political discussion in a representative democracy should proceed[.]“); Buckley v. Valeo, 424 U.S. 1, 93, n. 127, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam) (“[T]he central purpose of the Speech and Press Clauses was to assure a society in which ‘uninhibited, robust, and wide-open’ public debate concerning matters of public interest would thrive, for only in such a society can a healthy representative democracy flourish[.]“); Cox v. Louisiana, 379 U.S. 536, 552, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965) (“Maintenance of the opportunity for free political discussion is a basic tenet of our constitutional democracy[.]“); Whitney v. California, 274 U.S. 357, 375, 47 S.Ct. 641, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); Patterson v. Colorado ex rel. Attorney General of Colo., 205 U.S. 454, 465, 27 S.Ct. 556, 51 L.Ed. 879 (1907) (Harlan, J., dissenting).