Hеrbert ODLE, d/b/a Sports Club, Inc.; Sherill Douglas; Jenifer Cosimano; and Jane Does I and II, Plaintiffs-Appellants, v. DECATUR COUNTY, TENNESSEE; the Decatur County Commission; and the Decatur County Adult-Oriented Establishment Board, Defendants-Appellees, The State of Tennessee, Intervenor-Defendant-Appellee.
No. 03-6532.
United States Court of Appeals, Sixth Circuit.
Argued: Dec. 3, 2004. Decided and Filed: Aug. 26, 2005.
423 F.3d 386
Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.*
CLAY, Circuit Judge.
Herbert Odle and four dancers at his adult business (collectively “Plaintiffs“) appeal the district court‘s grant of summary judgment in favor of Defendants Decatur County, Tennessee (the “county” or “Decatur County“), the Decatur County Commission (the “Commission“), the Decаtur County Adult-Oriented Establishment Board (the “Board“) and Intervenor-Defendant the State of Tennessee.1 Plaintiffs assert that on its face Tennessee‘s Adult-Oriented Establishment Registration Act,
I. BACKGROUND
In April 2000, Plaintiff Herbert Odle began operating Sports Club, a business where nude and semi-nude dancing is presented for entertainment and beer is sold. Sports Club is located in a rural portion of Decatur County, Tennessee. Plaintiffs Jenifer Cosimano and Sherill Douglas are dancers employed by Sports Club; as are Plaintiffs Jane Doe I and II.
On July 11, 2002, the Board had its first meeting and determined that the 120-day grace period for establishments already in existence would begin on that day. On July 19, 2002, the Decatur County Attorney informed Odle by letter that the county would seek to enforce the licensing provision against him if he had not obtained a license within 120 days of July 11, 2002, i.e., by November 8, 2002. Odle did not and has not applied for a license from the Board. Instead, on November 7, 2002, he and his co-plaintiffs filed a complaint in the Western District of Tennessee, naming the county, the Commission, and the Board as defendants. The complaint alleged a number of claims, only some of which are on appeal and at least one of which was deemed waived at the summary judgment stage for failure to present a discernable argument. The claims on appeal are as follows: that the Act‘s licensing scheme amounts to an unconstitutional prior restraint on protected expression; that unspecified substantive provisions of the Act would infringe on Plaintiffs’ freedom of expression; and that the ordinance is unconstitutionally overbroad or alternatively includes substantive provisions that would violate the First Amendment if applied to adult-oriented establishments. Plaintiffs sought a declaratory judgment to the effect that the Act and ordinance are unconstitutional. The relief requested was a temporary restraining order barring enforcement of the Act and the ordinance and, ultimately, permanent injunctive relief against enforcement of both.
On December 3, 2002, the district cоurt issued a temporary restraining order, by mutual consent of the parties, precluding enforcement of the Act and the ordinance for 90 days, or until the court ruled on the motion for a preliminary injunction. On February 3, 2003, the court granted Defendant State of Tennessee‘s motion to intervene to defend the constitutionality of the Act. Plaintiffs filed an amended complaint on June 17, 2003, raising claims that are not at issue in this appeal.
During July and August 2003, the parties engaged in discovery. The parties then filed cross-motions for summary judgment, with Plaintiffs renewing their request for permanent injunctions against enforcement of the Act and ordinance. Another temporary restraining order issued on September 2, 2003, by consent of the parties. On October 14, 2003, the court granted Defendants’ motion for summary judgment, finding each of Plaintiffs’ constitutional challenges to the Act and ordinance unpersuasive; judgment was entered on October 20, 2003. Plaintiffs timely filed a notice of appeal on November 13, 2003 and the next day the district court denied their motion for a stay pending appeal. A motions panel of this Court denied Plaintiffs’ motion for a stay of enforcement of the Act and ordinance on March 19, 2004. The Act and ordinance became enforceable on that day, so we
II. STANDARD OF REVIEW
We review a district court‘s grant of summary judgment de novo. Kalamazoo Acquisitions, L.L.C. v. Westfield Insurance Co., Inc., 395 F.3d 338, 341 (6th Cir. 2005); Cockrel v. Shelby County Sch. Dist., 270 F.3d 1036, 1048 (6th Cir.2001). Summary judgment shall be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of lаw.”
III. DISCUSSION
A. Prior Restraint Claim
Plaintiffs, not having applied for a license, present a facial challenge to the Act‘s licensing scheme.2 This is a colorable claim at least in theory because while it is not preferred, erotic entertainment is firmly within the scope of expression protected under the First Amendment. City of Erie v. Pap‘s A.M., 529 U.S. 277, 289 (2000) (plurality opinion); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991) (plurality opinion); Sable Communications of Cal. v. FCC, 492 U.S. 115, 126 (1989). Under the Act, an “adult-oriented establishment” must first obtain a license in order to legally do business. Consequently, the Act‘s licensing scheme constitutes a prior restraint on protected expression. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990) (plurality opinion); Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 554 (1975); Deja Vu of Nashville, Inc. v. Metropolitan Gov‘t of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir.2001). Because prior restraints are not unconstitutional per se, the question is whether the prior restraint at issue in this case passes constitutional muster. Southeastern Promotions, 420 U.S. at 558; Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir.2000).
The Supreme Court has long required prior restraint licensing schemes to guarantee applicants a prompt final judicial decision on the merits of a license denial and preservation of the status quo while an application or judicial review of a license denial is pending. Freedman v. Maryland, 380 U.S. 51, 58 (1965);
Under the Act, all operators of “adult-oriented establishments” and entertainers employed by such establishments must obtain licenses from the Board. See
Under the Act, the first review of a license application may be performed by the county Sheriff‘s department or the Board itself but in any event must be completed no later than 20 days after the application is filed.
Thus the Act on its face requires prompt judicial review of an adverse decision by the Board. Plaintiffs contend that the Act‘s promise of judicial review is “illusory” because under the common law of Tennessee, judges have wide discretion in declaratory judgment actions. Plaintiffs apparently suggest that despite the Act‘s explicit command for a decision within two days of the hearing,
Plaintiffs next contend the Act does not permit first-time applicants with extant businesses to enjoy the status quo, i.e., continue to run their businesses as normal, while they await a final judicial decision on their application. See Freedman, 380 U.S. at 58-59; FW/PBS, Inc., 493 U.S. at 229-30. This claim is without merit since the Act permits a first-time applicant with a business in existence at the time of the Act‘s adoption to operate as normal for 120 days while it applies for a license and, if the application is denied, to seek judicial review under the Act‘s declaratory judgment provision.
B. Overbreadth Claim
Plaintiffs maintain that a county ordinance5 related to the Act is unconstitutionally overbroad.6 The ordinance prohibits, among other things, nudity and the performance of a wide range of arguably sexually suggestive acts in “public place[s] where intoxicating liquors [] are offered for sale, served or consumed.” Ord. § 1(a). We reprint the ordinance‘s complete definition of “publiс place” in the margin, but suffice it to say here that the definition is so broad that it is effectively all-encompassing, exempting only restrooms, showers, medical facilities, motel rooms and the like, modeling classes at state-accredited schools, and state-licensed “family-oriented clothing optional facil it[ies]“—places, one would imagine, where performances needing the protection of the First Amendment do not often occur.7
Ord. § 1(h). Plaintiffs argue that this definition is overbroad because it would proscribe myriad performances that involve nudity or sexually suggestive content but to which the alleged harmful secondary effects that purportedly motivated the passage of the ordinance do not attend.
The overbreadth doctrine is an extraordinary but firmly-established means of enforcing First Amendment rights. Traditional standing is not a requirement, i.e., a plaintiff may assert the interests of others not before the court even if it is only their protected expression, not the plaintiffs‘, that the challenged ordinance is said to infringe. Board of Airport Comm‘rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987); City Council of Los Angeles v. Vincent, 466 U.S. 789, 801 (1984); Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973); NAACP v. Button, 371 U.S. 415, 433 (1963); Deja Vu of Nashville, 274 F.3d at 387; Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135 (6th Cir.1994); Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 512 (4th Cir.2002). Thus the fact that Sports Club is unlikely to offer performances of Shakespeare‘s plays is immaterial. See Carandola, 303 F.3d at 512; Deja Vu of Nashville, 274 F.3d at 387; see also Taxpayers for Vincent, 466 U.S. at 801-802. And because, as we discuss in greater detail below, the purpose of the overbreadth doctrine is “to prevent the chilling of future protected expression,” Staley v. Jones, 239 F.3d 769, 779 (6th Cir.2001), it is likewise immaterial that, as the district court found, Decatur County presently lacks venues where “serious literary or theatrical productions are reasonably likely to occur.”
We have held that “[a] law is overbroad under the First Amendment if it ‘reaches a substantial number of impermissible applications’ relative to [its] legitimate sweep.” Deja Vu of Nashville, 274 F.3d at 387 (quoting New York v. Ferber, 458 U.S. 747, 771 (1982)); see also Broadrick, 413 U.S. at 613. If an ordinance is held to be overbroad, the result is dramatic: “any enforcement of [the ordinance] is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.” Broadrick, 413 U.S. at 613. Consequently, the invalidation of an ordinance on overbreadth grounds is “strong medicine” to be used “sparingly and only as a last resort.”
We note at the outset that Plaintiffs do not contend we must apply strict
Citing our decision in Triplett Grille, 40 F.3d 129 (6th Cir.1994) and the Fourth Circuit‘s decision in Carandola, 303 F.3d 507 (4th Cir.2002), Plaintiffs submit that the ordinance at issue here reaches a substantial amount of expression not usually attended by the harmful secondary effects—“criminal activity, moral degradation[,] disturbances of the peace and good order of the community, [and threats] to the public‘s health, safety, and morals, and the economic development of Decatur County“—the ordinance was enacted to prevent. See Ord. Preamble. Section 1(a) of the ordinance makes it unlawful for the proprietor at a public place where intoxicating liquors are sold, served, or consumed: to “suffer or permit any female person ... to expose ... that area of the human breast at or below the top of the areola“; to permit any female person to employ a device intended to simulate the appearance of a nude human breast; to “suffer or permit any person ... to expose ... his or her genitals, pubic area, buttocks, аnus or anal cleft or cleavage, or to show the covered male genitals in a discernably turgid state“; or to permit any person to employ a device intended to “give the appearance of or simulate the” parts of the body listed just above. Ord. § 1(a)(1)-(4). In addition to the liability section 1(a) imposes on proprietors, sections 1(b) and 1(c) make the person doing the exposing or employing the simulation device individually liable. Finally, section 1(d) makes it unlawful
[t]o allow any entertainment on [liquor-]licensed premises by any owner, licensee, agent of licensee, guest of licensee, employee, independent contractor of licensee, patron, or guest, which shall contain the performance of acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation, or any sexual acts which are prohibited by law included
[sic] but not limited to table dancing, lap dancing, couch dancing, or including the actual or simulated touching, caressing, or fondling of the breasts, buttocks, anus, or genitals, or the actual or simulated displaying of the pubic hair, anus, vulva, or genitals; or the nipples of a female.
Ord. § 1(d).
We invalidated a similar “public place” ordinance in Triplett Grille on the ground that it was overbroad. The ordinance there employed a similar definition of nudity but tread more lightly on expression, proscribing only sexual intercourse, “deviant sexual conduct,” and the fondling of one‘s genitals or those of another. 40 F.3d at 131 n. 2 (quoting the City of Akron‘s (Ohio) ordinance). The ordinance in Triplett defined “public place” more broadly than the ordinance at issue in this case, however, because it did not apply only to public places where intoxicating liquors were sold, served, or consumed. We explain later why Triplett is relevant despite this distinction. The other differences between the two ordinances are minimal and we think immaterial because, like the Triplett ordinance, the county‘s ordinance reaches a wide swath of public places likely to present performances not usually attended by harmful secondary effects. Compare
The statute in Carandola proscribed, in any establishment licensed to sell beer, wine, or liquor, nudity, “[a]ny entertainment that includes or simulates sexual intercourse or any sexual act,” and a variety of other sexual or sexually suggestive acts similar or identical to those proscribed by the ordinance at issue here.10 303 F.3d at 510. The Fourth Circuit observed that the state liquor commission had produced no evidence that liquor-licensed establishments in general, as opposed to those particular establishments that regularly present nude or semi-nude dancing, cause harmful secondary effects.
The restriсtions challenged here ... sweep far beyond bars and nude dancing establishments. They reach a great deal of expression in the heartland of the [First Amendment‘s] protection. As the Commission has conceded, the plain language of the restrictions prohibits on licensed premises any entertainment that ‘simulate[s]’ sexual behavior, even if performers are fully clothed or covered, and even if the conduct is integral to the production—for example, a political satire, a Shakespeare play depicting young love, or a drama depicting the horrors of rape. The Commission has further conceded that the restrictions have the same prohibitory effect on much non-erotic dance—such as a ballet in which
one dancer touches another‘s buttock during a lift—and all nudity or simulаted nudity, however brief, in productions with clear artistic merit—such as the Pulitzer Prize winning play, Wit.... The Commission has offered nothing ... to suggest that these mainstream entertainments, to which it has conceded the restrictions apply, produce the kind of adverse secondary effects that the state seeks to prevent. Indeed, it is difficult to believe that such evidence exists. One simply does not associate these performances with disorderly behavior—whether or not alcohol is served.
Carandola, 303 F.3d at 516 (citation omitted).
Defendants do not argue that the ordinance at issue here is supported by proof that, as a rule, harmful secondary effects usually follow when any public places where alcohol is available are permitted to host performances involving nudity, incidental touching, or even sexually suggestive acts, so Triplett and Carandola are not distinguishable on that basis. Nor do Defendants suggest that the ordinance can be construed to except “mainstream” artistic or entertainment venues, see Carandola, 303 F.3d at 516—i.e., venues unlikely to spawn harmful secondary effects—from its coverage. Instead Defendants urge us to adopt the district court‘s conclusion that because “[t]here are no theatrical, performance, or entertainment venues [in Decatur County] where serious literary or theatrical [performances] are reasonably likely to occur,” the ordinance cannot be overbroad. JA 55 (Dist.Ct.Op.). Defendants also suggest that because the ordinance at issue here targets only public places where alcohol is sold, served or consumed, our analysis should be controlled by California v. LaRue, 409 U.S. 109,
It is true that we must adopt a limiting construction to save the ordinance from invalidation if it is “readily susceptible” to such a construction. Virginia v. American Booksellers Ass‘n, 484 U.S. 383, 397 (1988); Erznoznik v. City of Jacksonville, 422 U.S. 205, 214-16 (1975); Broadrick, 413 U.S. at 613; Triplett, 40 F.3d at 136. But we do not think the fact that Decatur County purportedly lacks, at the present time, venues likely to hold performances of literary or artistic value should affect our construction of the ordinance‘s plain language. We are aware of only one case in which a court saved an ordinance of the sort at issue in this case because the jurisdiction in which the ordinance controlled lacked venues likely to offer protected expression but unlikely to spawn harmful secondary effects. See SOB, Inc. v. County of Benton, 317 F.3d 856, 864-65 (8th Cir.2003). We think this aspect of SOB stands in contrast to the great weight of the pertinent case law; and, in any event, the case is distinguishable on multiple grounds.
A number of courts have considered overbreadth challenges to statutes or ordinances banning nudity and/or sexually suggestive conduct in an ostensibly wide range of public places. In cases where an ordinance or statute survived review it was because an express exception in the law‘s text or other specific language made the law “readily susceptible” to a limiting construction. Schultz v. City of Cumberland, 228 F.3d 831, 849-50 (7th Cir.2000) (because the ordinance‘s stated scope of application, theaters that “regularly feature[ ]” nudity, was overbroad, the court construed the text to mean theaters that “always
These results distinguish the cases just cited from the case at hand, for if the question is whether a challenged ordinance can be “readily” construed in a way that avoids potential unconstitutional applications, surely the answer must depend more on the language the drafters employed than on the post hoc representations of the local officials charged with enforcing the ordinance. This is why the Supreme Court has struck a delicate balance between, on the one hand, accepting a state or local government‘s plausible saving construction when an ordinance or statute is “readily susceptible” to it, American Booksellers, 484 U.S. at 397, and, on the other hand, declining to accept a construction where to do so would amount to rewriting state or local law—an enterprise the federal courts are not empowered to undertake.
For these reasons, we think the Eighth Circuit may have crossed the line in SOB insofar as its decision to uphold a similar ordinance rested on proof that there were no artistic or literary venues in the relevant county and on the local prosecutor‘s promise not to enforce the statute against the proprietors of such venues. 317 F.3d at 865. In any event, SOB is distinguishable in two significant respects. First, and most critically, the ordinance in SOB included an exception for “any theatrical production performed in a thеater by a professional or amateur theatrical or musical company which has serious artistic merit.” Id. at 864-65 (quoting ordinance). The Eighth Circuit lamented that this exception was “inexplicably limited to the ordinance‘s public-nudity prohibition, so it does not appear to limit the public-genital-fondling prohibition,” id., the latter of which appeared to prohibit even simulated caressing or incidental touching while clothed. It was against this peculiar backdrop that the SOB court considered the County Attorney‘s affidavit representing that there were no theaters in the county and that no prosecutions would be brought against theaters if any emerged.
Finally, we consider Defendants’ argument that under LaRue, 409 U.S. 109,
LaRue‘s rationale is no longer good law. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484,
We agree with this reading of LaRue and 44 Liquormart and therefore decline to accept Defendants’ suggestion that they need not furnish the type of evidence necessary to support the breadth of the Decatur County ordinance—i.e., evidence tending to show that all, or even most, public places where alcohol is sold, served or consumed, are likely to spawn negative secondary effects if such places are permitted to host performances involving nudity or acts that could reasonably be viewed as sexually suggestive. See Triplett, 40 F.3d at 135-36; Carandola, 303 F.3d at 515-17; see also Deja Vu of Nashville, 274 F.3d at 387; Ways, 274 F.3d at 518-19; Farkas, 151 F.3d at 904. Like the statute in Carandola and the ordinance in Triplett, the ordinance at issue here “makes no attempt to regulate only those expressive activities associated with harmful secondary effects and includes no limiting provisions. Instead, [it] sweeps within its ambit expressive conduct not generally associated with” the kinds of harmful secondary effects it was designed to prevent. Triplett, 40 F.3d at 129; see also Carandola, 303 F.3d at 516; Ways, 274 F.3d at 518-19. Therefore, the ordinance “reaches a substantial number of impermissible applications.” Ferber, 458 U.S. at 771,
IV. CONCLUSION
The grant of summary judgment to Defendants on the prior restraint claim is AFFIRMED and the grant of summary judgment to Defendants on the overbreadth claim is REVERSED. The matter is REMANDED so that the district court may enter judgment in favor of Plaintiffs on thе overbreadth claim and issue an injunction permanently enjoining enforcement of the ordinance.
Notes
Ord. § 1(h).[A]ny location frequented by the public, or where the public is present or likely to be present, or where a person may reasonably be expected to be observed by members of the public. “Public places” includes, but is not limited to, streets, sidewalks, parks, business and commercial establishments (whether for profit or not-for-profit and whether open to the public at large or where entrance is limited by a cover charge or membership requirement and/or both), bottle clubs, hotels, motels, restaurants, night clubs, country clubs, cabarets and meeting facilities utilized by any religious, social, fraternal or similar organizations. Premises used solely as a
private rеsidence, whether permanent or temporary in nature are not deemed to be a public place. “Public places” does not include enclosed single sex public restrooms, enclosed single sex functional showers, locker and/or dressing room facilities, enclosed motel rooms and hotel rooms designed and intended for sleeping accommodations, doctors’ offices, portions of hospitals and similar places in which nudity or exposure is necessarily or customarily expected outside of the home and the sphere of privacy constitutionally protected therein; nor does it include a person appearing in a state of nudity in a modeling class operated by a proprietary school, licensed by the state of Tennessee, a college, junior college, or university supported entirely or partly by taxation, or a private college or university where such private college or university maintains and operates educational programs in which credits are transferable to a college, junior college, or university supported entirely or partly by taxation or an accredited private college. “Public place” does not include a private facility which has been formed as a family-oriented clothing optional facility, properly licensed by the state.