Herbert 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: December 3, 2004. Decided and Filed: August 26, 2005.
421 F.3d 386
Before: SILER and CLAY, Circuit Judges; BERTELSMAN, District Judge.
ARGUED: Lloyd R. Tatum, Tatum & Tatum, Henderson, Tennessee, for Appellants. Steven A. Hart, Office of the Attorney General, Nashville, Tennessee, for Appellees. ON BRIEF: Lloyd R. Tatum, Tatum & Tatum, Henderson, Tennessee, for Appellants. Steven A. Hart, Office of the Attorney General, Nashville, Tennessee, for Appellees.
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 Decatur 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 May 22, 2000, the Decatur County Commission adopted for local effect the Tennessee Adult-Oriented Establishment Registration Act,
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.
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 may assume Plaintiffs are not operating Sports Club, at least not as an adult-oriented establishment.
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 law.”
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).
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,
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 “public 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 facilit[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.
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.” Id.
We note at the outset that Plaintiffs do not contend we must apply strict scrutiny to determine whether the ordinance is overbroad. Instead, both parties phrase their overbreadth arguments in the language of intermediate scrutiny8 and because we find the ordinance overbroad under that standard, we leave for another day the question whether strict scrutiny ought to apply to an ordinance that prohibits not only nudity but also sexually suggestive acts performed while clothed.9 As it has been applied in the overbreadth context, intermediate scrutiny requires (at least) proof that most establishments to which the challenged ordinance or statute applies are likely to spawn harmful secondary effects if permitted to hold performances involving nudity and/or content that could reasonably be viewed as sexually suggestive. See Triplett Grille, 40 F.3d at 135-36; Carandola, 303 F.3d at 513-15; Schultz v. City of Cumberland, 228 F.3d 831, 847-50 (7th Cir.2000); see also Deja Vu of Nashville, 274 F.3d at 387. This is a corollary of the principle that an ordinance or statute is overbroad if it “‘reaches a substantial number of impermissible applications’ relative to [its] legitimate sweep.” Deja Vu of Nashville, 274 F.3d at 387 (quoting Ferber, 458 U.S. at 771).
[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 id. (defining “public place” as “any street, sidewalk, right of way and any public or private building or place where the general public is invited“) with Ord. § 1(a) (defining “public place” in a similar manner but exempting homes, rest rooms, medical facilities, modeling classes, etc.). We held that the ordinance in Triplett was unconstitutionally overbroad because the city of Akron did not “demonstrate a link between nudity in non-adult entertainment and secondary effects,” 40 F.3d at 135, and because the ordinance did not include limiting provisions such that it could be modified to apply only in contexts where harmful secondary effects were likely to exist. Id.
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. Id. at 515-16. This omission was crucial, for as the Fourth Circuit explained:
The restrictions 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 simulated 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 (1972), where the Supreme Court reviewed a similar California liquor law under the highly deferential rational basis standard. We address each argument in turn.
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 feature [ ]” nudity); Farkas v. Miller, 151 F.3d 900, 901-903, 905 (8th Cir.1998) (statute expressly excepted any “theater, concert hall, art center, museum, or similar establishment which is primarily devoted to the arts or theatrical performances“) (citation omitted); J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 366 (5th Cir.1998) (ordinance expressly excepted persons “engaged in expressing a matter of serious literary, artistic, scientific or political value“).11 Similarly, the Supreme Court sustained a state statute proscribing the possession of child pornography against an overbreadth challenge because it had been authoritatively construed by the state‘s supreme court to avoid “penalizing persons for viewing or possessing innocuous photographs of naked children.” Osborne v. Ohio, 495 U.S. 103, 113-14 (1990).
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 theater 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. Id. Given the express exception to the nudity ban, we think the SOB court‘s decision to read into the ordinance an analogous exception to the genital-fondling ban is a construction of an entirely different character than the one proposed by Defendants in this case, in which we confront an ordinance that lacks exceptions of any kind. SOB is also distinguishable because the prosecutor in that case affirmatively represented that prosecutions would not be brought under the genital-fondling provision against theaters that fell within the exception to the nudity ban. While we have said that such a promise is not in any sense a “construction” of the ordinance, it is more than what Defendants have produced on this record — namely, a representation that Decatur County‘s admittedly overbroad ordinance, if permitted to stand, would have no present unconstitutional effect.
LaRue‘s rationale is no longer good law. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), the Court “disavow[ed] [LaRue‘s] reasoning insofar as it relied on the Twenty-First Amendment.” Id. at 516. The Court held “that the Twenty-first Amendment does not qualify the constitutional prohibition against laws abridging the freedom of speech embodied in the First Amendment.” Id. LaRue‘s holding survived Liquormart because, as the Court noted: “in ... cases [subsequent to LaRue], the Court 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.” Id. at 515. The Court cited Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976) and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) (plurality opinion) for this proposition — two cases in which it had applied intermediate scrutiny to laws designed to remedy harmful secondary effects. A number of courts have interpreted Liquormart‘s reaffirmation of LaRue‘s holding to mean that the LaRue regulations would have survived intermediate scrutiny12 — and, moreover, that they would have had to survive such scrutiny to comport with the First Amendment. Carandola, 303 F.3d at 513 n. 2, 519-20; Dream Palace v. County of Maricopa, 384 F.3d 990, 1018-19 (9th Cir.2004); Sammy‘s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 996 (11th Cir.1998); Ben‘s Bar, Inc. v. Village of Somerset, 316 F.3d 702, 710-11 (7th Cir.2003). But see Carandola, 303 F.3d at 521-23 (Niemeyer, J., dissenting); BZAPS, Inc. v. City of Mankato, 268 F.3d 603, 608 (8th Cir.2001) (following LaRue without applying intermediate scrutiny in a case that did not involve an overbreadth claim).
We agree with this reading of LaRue and 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; Broadrick, 413 U.S. at 613. Accordingly, we hold that the ordinance is overbroad. Because this means “any enforcement [of the ordinance as it is now written] is totally forbidden,” Broadrick, 413 U.S. at 613, we need not and should not consider Plaintiffs’ alternative claim that certain of the ordinance‘s provisions are unconstitutional as applied to nude-dancing establishments. See Carandola, 303 F.3d at 520.
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 the overbreadth claim and issue an injunction permanently enjoining enforcement of the ordinance.