Lead Opinion
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 district court found that state law did not preempt the ordinance and that the ordinance was constitutional. On appeal, we find that state law preempts enforcement of the ordinance and that it is unenforceable against the establishment. Accordingly, we reverse the judgment of the district court and remand the case with instructions to the court to enter an order enjoining the city from enforcing its ordinance against the establishment.
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.”
For example, the ordinance prohibits the possession or consumption of alcoholic beverages by any person on the premises of a sexually oriented business. Id. § 48.085. The ordinance also prohibits any person from intentionally or knowingly appearing in a state of nudity or from intentionally or knowingly violating Iowa Code section 728.5.
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 The-atre 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 The-atre.
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 injunc-tive 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 Iowa Code section 728.5 (2009).
Because the issue of whether state law preempts the City’s ordinance is disposi-tive 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,
IV. Whether the Iowa Code Preempts the Hamburg Ordinance.
Mall Real Estate asserts the Hamburg ordinance conflicts with state law because section 728.5 contains a theater exception and the Hamburg ordinance does not. Mall Real Estate bases this argument on two other district court decisions that the district court distinguished as dealing with different statutes under different facts and circumstances. The City responds by arguing section 728.11 allows local governments to pass ordinances related to zoning and licensing of such businesses.
Section 728.5 exempts theaters from the statewide ban of public nudity. See Iowa Code § 728.5. Section 728.11 contains a uniform application provision. It provides:
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.,
The Iowa Constitution was amended in 1968 to provide municipal governments with limited powers of legislative home rule. Iowa Const, art. Ill, § 38A. The home rule amendment provides:
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.
*195 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,
Courts 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.” Iowa Code § 364.3(3); Sioux City Police Officers’ Ass’n v. City of Sioux City,
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,
We have previously construed section 728.11 to mean that chapter 728 expressly prohibits a municipality from enacting an ordinance regulating obscenity. In Chelsea Theater Corp. v. City of Burlington,
After looking at the legislative history of section 725.9, we determined section 725.9 was not limited to the dissemination of obscene materials to minors and instead restricted governmental subdivisions from enacting any local ordinances regulating conduct covered in chapter 725, now chapter 728. Id. at 374. The United States Supreme Court had come to the same conclusion when reviewing a conviction from the United States District Court for the Southern District of Iowa for a violation of a federal statute prohibiting the mailing of obscene materials. See Smith v. United States,
Thus, the scope of section 728.11 is broad. Since our decision in Chelsea Theater, the general assembly has kept section 728.11 intact. Section 728.11 continues to provide for the uniform application of the provisions of chapter 728 relating to materials covered by chapter 728. By its terms, section 728.11 prohibits local governments from regulating obscene material or the availability of obscene material. The parties did not argue nor do we find a reason to overrule our decision in Chelsea Theater. Moreover, the general assembly has chosen not to overrule Chelsea Theater. When an interpretation by the court is left undisturbed by the general assembly for a substantial period, we have to presume the general assembly agreed with the court’s interpretation. Chi. Cent. & Pac. R.R. v. Calhoun Cnty. Bd. of Supervisors,
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,
The inquiry now turns to whether the general assembly intended section 728.11 to apply to live nude dancing. The City does not argue in its brief that live nude dancing is outside the scope of section 728.11. Instead, the City’s sole argument is that section 728.11 allows the City to issue licenses and permits to persons engaged in activity otherwise covered by the statute. We disagree. The plain language of section 728.11 makes clear that section 728.11 prohibits municipalities, counties, or other governmental units from enacting laws, ordinances, or regulations concerning materials regulated under chapter 728. Section 728.11 goes further and states that all such laws, ordinances, or regulations are void or unenforceable and have no effect. The plain language of section 728.11 also creates an exception for a local government’s zoning authority, not for its licensing or permitting authority. Accordingly, unless a local ordinance is a zoning ordinance, it is preempted to the extent it regulates material regulated by chapter 728. See Estate of Ryan v. Heritage Trails Assocs., Inc.,
Even though the City does not argue that section 728.11 does not apply to live nude dancing, we must reach this issue because the outcome of this case hinges on the applicability of section 728.11 and its interaction with section 728.5. See Feld,
After our decision in Chelsea Theater and prior to the passage of the Hamburg ordinance, the general assembly passed three bills amending section 728.5. In 1978, the general assembly made the advertisement of any activity prohibited by the statute a serious misdemeanor. 1978 Iowa Acts ch. 1068, § 6 (codified at Iowa Code § 728.5(6) (1979)). In 1992, the general assembly amended the statute to criminalize live sex acts by minors. 1992 Iowa Acts ch. 1029, § 1 (codified at Iowa Code § 728.5(7) (1993)).
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 Iowa Code § 728.5 (Supp. 1997)). The amendment also stopped regulating the display of motion pictures depicting sex acts or nudity. Id. The amendment, however, maintained the exception for theaters. Id. Section 728.5 remained unchanged from this amendment to the time Hamburg passed its ordinance in 2008.
These amendments make three important facts clear. First, since section 728.5 first went into effect in 1977, a provision regulating nude dancing has always been part of the obscenity chapter of the Iowa Code. Second, the general assembly has amended the provision regulating nude dancing three times since its enactment and never removed it from the obscenity chapter of the Iowa Code. Third, in regulating nude dancing, the general assembly has continued to exempt theaters. The City does not contend that Mall Real Estate does not operate a theater.
Nonetheless, an argument can be made that the general assembly did not intend section 728.11 to apply to live nude dancing because of the definition of “material” in chapter 728. Section 728.1(3) defines “material” as the following:
[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,
In order to go outside of the plain language of section 728.1(3), we must find an ambiguity in the statute. See Estate of Ryan,
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,
On its face, section 728.1(3)’s definition is recursive. A defining term of “material” is “or any other ... materials.” A recognized definition of “material” is “a performer’s repertoire.” Merriam-Webster’s Collegiate Dictionary 765 (11th ed. 2005). This definition would include live performances, including nude and semi-nude dancing. However, one could also reasonably conclude “material” refers to inanimate objects, such as a table or book. Thus, reasonable minds could differ as to the meaning of “materials” when it is used to define the term “material.” Ordinarily, we would apply the “canon of construction noscitur a sociis, which summarizes the rule of both language and law that the meanings of particular words may be indicated or controlled by associated words.” Peak v. Adams,
First, application of the canon would lead to an absurd result that would thwart the legislative intent. See Harden v. State,
Second, “or other ... materials” must necessarily mean something unique from the rest of the defining terms. The list of items contained in section 728.1(3) is all-inclusive. It covers all conceivable inanimate objects that could constitute “material” for the purposes of the obscenity chapter. If the legislature did not give “or other ... materials” a meaning other than an inanimate object, the word would become surplusage. See Iowa Auto Dealers Ass’n v. Iowa Dep’t of Revenue & Fin.,
Third, the uniformity provision in section 728.11 is a strong indication of the general assembly’s desire to establish statewide regulation of obscenity. The
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 section 728.1(8) in a fashion to avoid constitutional issues. See Simmons v. State Pub. Defender,
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 section 728.11 in Chelsea Theater, we must find that section 728.11 preempts the City from enacting any ordinance regulating nude dancing in a theater. Until the general assembly amends section 728.11, the City is without authority to regulate nude dancing.
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.
Notes
. The ordinance also classifies adult bookstores, adult novelty stores, adult video stores, adult motels, adult motion pictures theaters, and seminude model studios as sexually oriented businesses. Hamburg, Iowa, Code § 48.030 (Dec. 8, 2008). Further, the ordinance defines "nudity or a state of nudity” as:
*192 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.
. Iowa Code section 728.5 prohibits total nudity in places of business required to obtain a sales tax permit. Iowa Code § 728.5 (2009). The Eighth Circuit Court of Appeals held section 728.5 does not violate the First Amendment to the United States Constitution. See Farkas v. Miller,
. The ordinance’s definition of "employee" includes performers. Hamburg, Iowa, Code § 48.020.11.
. All references to the Iowa Code are to the 2009 Code unless otherwise noted.
. In 2010, the general assembly amended the statute again. See 2010 Iowa Acts ch. 1078, § 2 (codified at Iowa Code § 728.5 (2011)). This amendment renumbered the subsections of section 728.5 and made the theater exception inapplicable to certain portions of the statute. See id.
. Although we conclude the general assembly intended nude and seminude dancing to be within the scope of section 728.11, we do not express any opinion as to the constitutionality of any provision in chapter 728 because it is beyond the scope of this appeal.
Dissenting Opinion
(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 Iowa Code § 728.11 (2009) (“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.... ”). To accomplish this regulation, the legislature enacted chapter 728 and defined both “obscene material” and “material.” See Iowa Code § 728.1(3), (5). We are ordinarily bound to follow legislative definitions. Inter-State Nurseries, Inc. v. Iowa Dep’t of Revenue,
The legislature defined the term “material” by listing five categories of material containing twenty-one or more specific items:
1. “[A]ny book, magazine, newspaper or other printed or written material”;
2. “[A]ny picture, drawing, photograph, motion picture, or other pictorial representation”;
3. “[A]ny statue or other figure”;
4. “[A]ny recording, transcription, or mechanical, chemical, or electrical reproduction”;
5. “[A]ny other articles, equipment, machines or materials.”
See id. § 728.1(3). The question of statutory interpretation in this ease is whether this definition includes the act of nude erotic dancing by a live performer. The majority concludes the legislature intended for nude dancing to be included within the meaning of the word “materials.” In other words, in the judgment of the majority, “materials” means a dancer to our legislature. This conclusion not only defies common sense, it defies our accepted rules of construction.
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,
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 section 728.1(3), all five categories and every descriptive word within each category describe various mediums that can be used to depict or display inanimate obscene pornography. The mediums listed have been used to create a multibillion-dollar commercial industry that distributes pornographic material worldwide. When the word “materials” is then added back into the definition in section 728.1(3), its meaning is logically derived from its associated words. Our legislature, like people in general, would not construct a list of twenty ways to distribute inanimate obscene material and then add a new topic of animate displays of obscenity to the definition by adding the word “materials” at the end of the list. Clearly, the application of the doctrine of associated words would exclude live performing arts from the definition of “material.” Under the noscitur a sociis doctrine, the word “materials” would mean any mediums used to display inanimate obscene pornography not specifically listed.
The second intrinsic aid, ejusdem gener-is, 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,
Second, the list of items in section 728.1(3) may be fairly comprehensive, but hardly all inclusive, so as to render the meaning of the term “other ... material” as surplusage, as asserted by the majority.
Third, words in a statute are to be given their common meaning. Severs v. Abrahamson,
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 section 728.1(3) is not open to two reasonable constructions in the context of the statute.
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,
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
Dissenting Opinion
(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 Iowa Code section 728.1(2), (5) (2009) in which the legislature prescribed.a list of inanimate objects like photos, movies, and magazines that are removed from local regulation by the preemption provision in section 728.11 that is expressly limited to obscene materials.
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.,
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.,
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.,
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 AM.,
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 81 Video/Newsstand, Inc. v. Sartini, 455 Fed.
For these reasons, I would affirm the district court ruling upholding the City of Hamburg ordinance.
. The Knox Court this summer summarized the core First Amendment values as follows:
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*206 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) (Brandéis, 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).
Knox, - U.S. at -,