Sammy's of Mobile, Ltd. v. City of Mobile

justify- prima case established States facie LTD., relief, supra, MOBILE, Ala see Section an OF race-conscious SAMMY’S Partnership; Sammy’s n.13, can arguably exercise court bama I.C Limited Inc., cross-appeal. Company, Ala Management jurisdiction over appellate Corporation, Plaintiffs-Appel bama course, argues, the as the United States Of lants, may objectors’ be charac- cross-appeal Suau argu- properly as an alternative terized more appeal, main ment for affirmance Body MOBILE, Corporate OF CITY claim. review which case this Politic, Defendant-Appellee. made Swint Because the 1, INC., CLUB, # d.b.a. & BJ SOCIAL not readi- appeals should that a court of clear Store, Q. Candy Bodi Jennifer rulings ly jurisdiction over “related exercise ford; al., Plaintiffs-Appellants, et appealable,” themselves that are not I address the and because my cross-appeal in discus- substance of ALABAMA, MOBILE, OF CITY ap- of the United States’ the merits sion of Defendant-Appellee. n.13, I would supra, I.C peal, Section see No. 96-7073. authority to this court lacks hold district court’s con- independently the review Appeals, Court of States United established that the United States clusion Eleventh Circuit. prima case of discrimination. facie 8,May III. view, misapplied my majority has court’s refus- affirming the district

the law consent decree. approve proposed al to proposed decree I believe that Because provide for the vic- relief permissibly would the district and that tims of discrimination controlling law to a basis in court lacked decree, reverse approve the I would refuse to remand of the district court and the decision approve for the court with instructions proposed decree. respectfully from

Accordingly, I DISSENT majority opin- III.B and III.C Sections ion. Briskman, AL, Mobile,

Donald M. Luke Lirot, Dolan, FL, Charles Tampa, Lirot & Sammy’s Sammy’s of Mobile and Man- agement. Stout, Hall, Mobile, Perry

Roderick P. W. AL, Defendant-Appellee. BIRCH,

Before Judge, Circuit and HILL KRAVITCH, Judges. Senior Circuit

HILL, Judge: Senior Circuit City prohibits of Mobile liquor. establishments licensed to sell brought seeking injunction

Two clubs suit from enforcing its ordi- nance. The clubs claim the ordinance vio- rights lates their under the First Amend- ment the Constitution. The district court granted summary judgment City. For reasons, following we affirm. I. Mobile,

Ordinance 03-0031 provides: Alabama any It manager, shall be unlawful for offi- cer, agent, servant, employee, person or charge establishment within the City of police jurisdiction Mobile or the thereof, spirituous licensed sell or vi- liquors nous or malt or beverages brewed Alabama, under the laws of the State February 1. The ordinance was enacted on allow, exhibit, suffer, Sammy’s against City Ala- permit, filed suit

knowingly to in, in, declaratory connected participate seeking be bama state engage show, relief, with, picture, perfor- injunctive any motion and the removed mance, li- presentation or other to federal district court. The com- action which, in whole or premises, plaint alleges censed unen- nudity conducts or part, or sexual depicts equitable under the doctrine of es- forceable any simulation thereof. toppel speech and that free violates the Amendment, takings the clause of the First Any person, corporation firm or convicted Amendment, equal of Fifth the fined clause the violating ordinance shall be for clause, protection the and both substantive and sentenced more than $500.00 not procedural guarantees period exceeding process of the due not imprisonment for Amendment, and months, clause of the Fourteenth of the court six the discretion post the ex facto clause. trying the case.2 preamble provides: The to the ordinance Candy in federal dis- The Store filed suit WHEREAS, City of the Council the injunctive seeking dam- trict court relief and Mobile, Alabama, finds and declares ages, alleging that the ordinance violates the de- sexual and and conduct Amendment, Amendment, the First Fifth thereof, coupled piction with alcohol equal protection Four- and the clause of the be- public places, encourages undesirable and teenth Amendment that the ordinance the is not the interest of havior and judi- the unenforceable under doctrine res health, safety, and welfare. cata.3 WHEREAS, the Council chosen has all The two cases were consolidated and with mix- disturbances associated avoid the parties summary judgment. for The moved dancing by ing alcohol and nude means summary granted judgment to district court a reasonable restriction establish- all The court concluded claims. liquors spiritous which sell or vinous ments First that the ordinance does not offend the beverages. or malt brewed or four-part under test of Amendment Unit NOW, THEREFORE, adopts the Council O’Brien, 367, 391 U.S. 88 S.Ct. ed States v. powers un- pursuant to the this Ordinance (1968), plain and that Twenty-first Amendment der the Sammy’s remaining merit. tiffs’ claims lack delegat- of the United States Constitution Candy contending appeal, and Store The Alabama. to it the State of ed holding court erred district Id. offend the First Amend ordinance does not ordinance, enactment of the Prior process equal protection ment or the due and Mobile, Ltd., (Sammy’s), The Sammy’s of and fourteenth Amendment. We clauses to sell alcoholic Candy Store were licensed summary grant of the district court’s review consumption on-premises and beverages Cochran, v. judgment novo. Gordan de Sammy’s dancing. (11th Cir.1997). topless female 1438, 1439 offered pas- liquor surrendered license after ordinance, sage continues to offer of the II. nude, totally dancing. The topless, as aswell Supreme long The has Candy has surrendered its license Court Store dancing. nances such Mobile’s. provide topless and continues California LaRue, 109, 114, 93 S.Ct. yet 409 U.S. Although City has not enforced (1972), Store, approved, the Court Candy 34 L.Ed.2d against The ordinance police pow- general of the as a valid exercise an intent do expressed has so. surrounding nipple, "nudity” area of the darkened defines as: 2. The ordinance genitals in depiction covered male showing of the human male or female [T]he area, discernibly turgid state. pubic genitals, or buttocks with less than fully covering, showing opaque or the Sammy’s both fully opaque 3. district court denied with than a female breast less injunctive Candy relief. top Store's motions covering portion below the thereof er, dancing. 2462- S.Ct. at liquor where was sold. The Court found “conclusion, regulations, embodied these Recently, reaffirm performances that certain dis sexual precedential ed the value of LaRue and the pensing liquor by ought the drink not to Inc. Liquormart, Barnes-O’Brien test. premises occur at that have licenses was not Island, Rhode 517 U.S. an irrational one.” Id. at (1996). Although then, many 397. Since similar ordinances expressed long in a line disavowed idea approved, including have been several in this cases, LaRue, including Liquor circuit. See New York State Authori presumption Amendment lends an added Bellanca, ty v. validity favor of other (1981); City Newport 69 L.Ed.2d 357 v. of protected speech wise when ‍​​​​​​​‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​‌‌​‌​‌​​‌‌​‌​‌​​‌​​​‍it is at the site of 1047,

Iacobucci, 913, 479 107 S.Ct. U.S. 93 beverages, the sale of alcoholic the Court (1987); Lanier L.Ed.2d 862 v. New of “[entirely apart observed from the (11th ton, Cir.1988); 842 253 F.2d Int'l Eat Amendment, Twenty-first the State has am County, eries America v. 941 Broward of power ple prohibit of the sale alcoholic (11th 1157, Cir.1991); 1162 Fa Grand beverages in inappropriate 517 locations.” Tavern, Wicker, loon Inc. v. 670 F.2d 943 515, at power U.S. 116 at 1514. This S.Ct. is (11th Cir.1982); 207, Inc. St. Johns Cafe police power every located in the inherent of 641, County, (M.D.Fla.1994), F.Supp. 856 645 regulate promote public decency. state to curiam, (11th Cir.1995). per F.3d 272 66 aff'd Id. Although regulate such ordinances The Court also reaffirmed that conduct,4 expressive the Court has deter Bames-O’Brien intermediate level of review they mined that are content-neutral and applies to Id. such ordinances. Under this should be reviewed under the intermediate test, concluded, the Court even after Li- kk level articulated in United States LaRue, quormart, “would come out the same O’Brien, 367, 1673, U.S. 88 20 391 S.Ct. way.” by Id. We guidance are informed this (1968). Theatre, Barnes v. Glen agree and with the district court that Inc., 560, 570, U.S. 2462- applicable Bames-O’Brien test is to the Mo- (1991). test, 115 L.Ed.2d 504 Under this bile ordinance.5 (1) an ordinance is constitutional if: in is The district court terest served within the of the held that the Mo (2) government; regulation pаsses bile all ordinance these for a furthers tests (3) interest; is constitutional interest served unrelated con (4) expression; to free health, and is less public safety, thei’e no duct: the restrictive alternative. O’Brien at 88 and morals a valid and substantial state Barnes, (quoted interest; at in U.S. the Mobile ordinance’s statement of 2461). Barnes, purpose 111 S.Ct. findings problems the Court as and to the cre applied in upholding prohi by this test Indiana’s ated the combination of alcohol and nude public nudity bition on applied to nude support entertainment are sufficient Supreme recognized 4. The Liquormart Court has that nude the view that 44 is the death knell for dancing may have some content. prohibiting ordinances nude entertainment Theatre, Inc., Barnes v. Glen U.S. Twenty-first bars. The Court characterized 2456, 2460, (1991). 111 S.Ct. 115 L.Ed.2d 504 analysis merely Amendment of LaRue as a "but- tress” to the conclusion that the First Amend- rejects application 5. The dissent of LaRue prohibition ment did not invalidate California’s Barnes to Mobile ordinance grossly premises of certain sexual exhibitions Island, Liquormart, believes Inc. v. Rhode. beverages. licensed serve alcoholic 514-16, Although long- 116 S.Ct. at 1514. no (1996), "eviscerated” the rationale of LaRue. by presumption er buttressed the added despite This conclusion is reached fact Amendment, the Court careful was Supreme Liquormart specifically Court in 44 pro- to remind us that just such ordinances remain against By express- cautions us such a view. vitality long opinion tected the continued of a line its that LaRue come would out cases, way, including hoped approving same have to forestall LaRue and Barnes. test, i.e., city’s this this that the interest be unre- regulation further requirement interest; suppression message interest is unrelated lated to the Indeed, expression; rejects and the ordi- dancing. of free the dissent suppression perceived narrowly tailored nance is test applicability the Bames-O’Brien problem. itself because it finds the Mobile ordinance to regulation, subject to a be “content-based” agree. preamble to the We “searching” scrutiny.7 level sexually ex finds that ordinance plicit coupled with alcohol entertainment Characterizing Mobile’s as con- “encourages public places undesirable behav prior departure tent-based is a clear from health, public ior and the interеst holding that such are not eases ordinances Thus, safety, and welfare.” message dancing. aimed at the erotic of nude very type found aimed harm Barnes, example, For Court government interest create substantial held that Indiana’s interest LaRue, International Eateries was “unrelated to the Furthermore, Mobile host of other cases. suppression expression.” of free believing a “reasonable basis” rejected at 2463. govern substantial ordinance will serve this merely argument because nude Eateries, 941 F.2d interest. See Inti mental content, dancing may have some The located this rea 1162. district court dancing prohibiting must an ordinance such experience in of other cit sonable basis suppression be aimed at the of that content. cities, ies, recit in other easelaw studies done purpose The of Indiana’s statute was not to issue, as well as their own ing findings on the dancing, suppress message erotic of nude common sense. This is suffic wisdom and nudity. public of Id. but to address evil Supreme has itself noted ient.6 The Court concluded, The “[i]t Court was not danc- any form sense indicates that “[c]ommon that being ing prohibited, simply but its that was nudity coupled in a with аlcohol in the nude.” Id. also Buzzetti v. done See begets Bellan place undesirable behavior.” (2d Cir.1998) City, New York 140 F.3d 134 ca, 718, 101 Final at 2601. (ordinance barring from res- adult businesses partially ly, requirement that the dancers areas is a idential zones and certain other alcohol their breasts or cease serve cover curbing nega- and aimed at content-neutral possible certainly is the least restriction on surround- tive effects of adult businesses in city’s which would still further the interest seeking ing suppress areas rather than alco controlling the combustible mixture of expression). free nudity. hol and rejected that too have the idea dissent believes that the ordi We The nee- are requirement not third nances aimed nude entertainment nance does meet the (such Barnes, specific ondary factor is consti effects other It is clear that under there no city particular morality) enacting requirement protecting tutional that make in as order regarding findings law.”). the adverse effects of ized challenged nude entertainment. combination alcohol and findings nor Court noted that there were no The argument the Bames-O ‘Brien 7. Thedissent's any legislative history to thе Indiana attached inapposite statute test is because Indiana statute, purpose pro found the but "statute’s content-neutral, Mobile’s or there was whereas tecting morality is clear from societal order and content-based, ignores is the claim dinance history.” text and its statute, face, pro While Indiana’s on its Barnes. v. St. Johns at 2461. See also Inc. Cafe public nudity "expressive con rather than hibits (M.D.Fla.1994), County, F.Supp. duct,” was the claim in Barnes not curiam, (11th Cir.1995) ("It per 'd F.3d 272 aff invalid, facially un but that it was statute was by Supreme now as matter law is established dancing. applied to There as nude constitutional culminating jurisprudence [Barnes ] was the statute was no claim Barnes may proscribed be secondary conduct effects of prohibited because it unconstitutional evaluating by a into consideration taken was simpliciter. that the statute The claim was justifying impinge interests prohibited it nude when, unconstitutional rights speech as in free even ment against dancing. The same claim is made legislative history there is no demonstrat actually ing considered sec Mobile ordinance. that the lawmakers essarily holding content-based. In It all such content-neutral. is true that not danc- time, ing Mobile, prohibited only ordinance to be valid is nude danc- conduct, ing extent, place liquor manner we where is served. To that wrote: ordinance refers to “content” of the dissent, however, dancing. The seems only imposed The restriction the ... equate this to content with content place ordinance is terms of the where reference suppression. says, example, [i.e., dissent presented only nude dancing be “outright target- that the ordinance is an ban places serving type alcohol]. not This solely protected by ed at conduct the First recognized indepen- has been that, face, singles Amendment” and its “on it expressive or dent communicative ele- out nude entertainment and erotic thus the ments conduct other contexts. message conveyed by that conduct.”9 947(em- Tavern, Faloon Grand 670 F.2d at added).8 phasis Court, however, not does equate suppression reference content with Similarly, the Mobile ordinance not does applies of content. The Court the Bames- message conveyed to ban seek whatever O’Brien intermediate level of to or- dancing. by nude It does even seеk to distinguish dinances which between nude and dancing. nude ban danc- entertainment, clothed which sold, but are aimed liquor where the ordinance re- only at only place of nude enter- stricts or manner of nude effects Playtime tainment. The- Renton regulating any particular without atres, Inc., message might convey. party disputes No (1986) (ordinance “by completely which Sam- crime, designed prevent pro- [was] terms my’s, having license, liquor surrendered its city’s trade, presents property tect retail maintain val- legal now under the ordinance. ues, generally protect and preserve dancing appears every- Nude to be allowed city’s Mobile, quality of neighborhoods, in except where commer- where is alcohol districts, life”); quality cial of urban attempting only regu- served. Mobile is to Young Theatres, Inc., v. American of in Mini inappropriate late sale alcohol places n. 2453 n. and it has inap- determined that it is (“[i]t secondary propriately places [of in effect [the] sold where nude danc- crime Therefore, and urban deterioration] which these offered. the ordinance is zoning avoid, attempt ordinances to not the cоnstitutional under the Bames-O’Brien ”). speech’ of dissemination ‘offensive test. Furthermore, Eateries, ap- upheld Bames-O’Brien test In International we too a plies to strictly this ordinance if it city even is not regulating dancing ordinance nude aimed Although heavily 8. ary the dissent commingling relies on our sub- effects of of alcohol and Pensacola, sequent opinions Krueger City nudity because such ordinances are of "content- (11th Cir.1985) City F.2d 851 Leverett regulations based behavior.” For Park, (11th Cir.1985), Pinellas 775 F.2d 1536 example, the dissent that the states reason we premise neither undermines Grand Faloon's pro- of Pinellas Park's ordinance Mobil's ordinance content-neutral. cases Both hibiting nudity in the course food and drink only explicitly not do not hold that Park, service in Leverett v. Pinellas content-regulatory as such the one at bar are but (11th Cir.1985), F.2d 1536 was "because apply do appropriate also not the strict apply protected expression, nance did not such Instead, regulations. Krueger for content both added) dissent, (emphasis dancing." as To the require only and Leverett that cities demonstrate any regulation place "legiti- of the or that ordinances such as mate manner nude Mobile's advance dancing dancing interests” and struck down nude necessarily is also ordinances because the records cases those expression. pre- content of such This contention any did show that the ordinances furthered supposes dancing conveys that all nude same legitimate government unrelated to the interest when, fact, message, controversy rages both in suppression expression. Krueger, of free See society large academia and as to whether nude at-855-56; Leverett, 775 F.2d at 1540-41. films, dancing, and other such exhibitions ex- press messages of fact, liberation submission. We apparently rejects 9. the dissent the idea any regulation addressing might cannot assume that justified such ordinance ever be attempt regulation. as an to address the undesirable second- nude is content KRAVITCH, Judge, from quality urban life Senior Circuit “protecting dissenting: secondary businesses.” effects adult Applying Barnes-O’Brien F.2d at enacting generally applicable Instead scrutiny, we concluded nudity proscription general or a it a substantial valid because furthered was prohibition on li- establishments regulating these interest alcohol, censed to serve Mobile Buzzetti, secondary Id. See also effects. chose to “the combustible mixture of address 140 F.3d 134. nudity” singling alcohol and out tradition- as an defends Mobile also ally protected forms of for crimi- attempt combat the effects Although agree nal sanction. I with the atmosphere. performance in a bar Just majority right that there is no “constitutional Renton, Young, and Interna- as the cities dancing,” watching to drink while Eateries, seeks, geographically, tional right does confer a to be free Constitution separate entertainment establishments adult government prohibits from commercial establishments—in from other conduct the basis of content. case, order to minimize this bars—in I Because funda- believe secondary effects of that combination. mentally misapprehends the restrictions that rejects analogy. It be- The dissent upon govern- imposes the First Amendment inapposite because lieves these cases are regulate expression, I mental re- zoning regulations therein were “content- spectfully dissent. neutral,” opposed to the “content-based” zoning ordinances in ordinance. The Mobile I. Eateries, Renton, Young, and International however, They were not content-neutral. differently other A. theaters from

treated adult They were content-based theaters. majori- Preliminarily, I take issue with the extent, exactly way, as and in the same same assumption that Ordi- ty’s apparent treats nude ordinance Mobile which nance 03-003 does not ban nude dancing.10 dancing differently from clothed outright, merely but rather conditions the attempting regulate the sec- Mobile is involving nu- right present entertainment alcohol ondary of the effects combination license, dity liquor the on the surrender of a dancing nude either. without significantly the does not burden Ordinance dancing. or nude It does not seek to ban bars rights. The of First Amendment exercise buy a Everyone can drink and watch still ignores majority’s reasoning the well-estab- cannot, They how- dancing in nude Mobile. proposition lished that ever, place. dissent do the same The both though no may rights government under obli- [e]ven to the believe this violate seems public, Mobile, gation provide person, a or the a are unaware to people of but we of the benefit, particular it not follow that right drink while does to constitutional may оf the benefit be conditioned watching dancing.11 Accordingly, the conferral nude right. on surrender of a constitutional court is AF- the judgment of the district Sindermann, 593[, Perry In 408 U.S. FIRMED. merely fact, g- speech ‍​​​​​​​‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​‌‌​‌​‌​​‌‌​‌​‌​​‌​​​‍Court reaf- required mercial involved. The the are few—a 10. In clothes truthful, may satisfy nonmis- string pasties that a state not ban will the statute. firmed Twenty-first speech, leading commercial the Liquormart proposi- The reference in 44 11. notwithstanding. Amendment may deny government a not benefit tion that dancing. In La- banned nude Mobile not infringes person a basis his constitution- that Rue, the fact is that "... critical the Court noted interests—especially ally protected his interest in perfor- not forbidden these that California has speech—does apply to this not case. freedom of merely pro- It has mances across the board. Liquormart, Island ordinance In 44 the Rhode ordinance, performances in establishments that such price advertising. scribed liquor The banned time, therefore, liquor the drink.” 409 U.S. it to sell regulate place, or licenses did the not manner, 397. totally suppressed com- but rather 1000

597], 2694[, 2697], (1996), dispelled definitively 92 S.Ct. which notion (1972), on a relying applying host of eases Twenty-first “qualif[ies] Amendment principle during preceding quar- that prohibition against constitutional laws ter-century, explained gov- that abridging speech the freedom of embodied in “may deny ernment a benefit Amendment.” Id. at 116 First S.Ct. infringes person on a that basis his consti- recognized district tutionally protected interests—especially Liquormart argument foreclosed the kb speech.” his interest freedom of “provides Amendment Island, Liquormart, Inc. v. presumption validity Rhode 517 added in favor of 44 484, 513, 1495, 1513, U.S. 134 topless state in the area of danci (1996) (internal 711 L.Ed.2d citation omit ng,”4 but nevertheless concluded that ted). Although City may regulate “provided roadmap up case for us with the alcohol, sale or service of not condition regulation.5 holding” such In state Li bb liquor the conferral of a license—to which quormart, cited Court Barnes Glen they appellants concede are not constitution Theatre, Inc., 501 111 S.Ct. ally right entitled—on the forfeiture (1991), proposition L.Ed.2d 504 for the engage behavior.1 Because the enjoy ... states “to restrict punishment, by authorizes the fine or ... regardless ‘bacchanalian revelries’ imprisonment, “exhibit, of licensees who suf beverages whether alcoholic are involved.” allow, fer, in, рermit, engage in, participate Liquormart, at at 1514 with” expres [are] connected one form of (citing quoting Barnes v. La California behavior, challenged sive ordinance im Rue, poses significant upon burden First (1972)). in L.Ed.2d district court Amendment freedoms.2 terpreted this Liquormart reference bb mean that Barnes controls all First Amend B. challenges ment regulating to ordinances nu denying appellants’ respective motions dity. relief, injunctive preliminary the district lead, Following the long “a district court’s the ma [Twenty-first court relied line of jority, although conceding Liquor- upholding Amendment] cases the states’ au bb requires application mart thority prohibit Amend First clubs question, ment to sell to the ordinance in licensed alcohol.”3 After the district orders, suggests preliminary Liquormart court entered confirms the but City’s power parties’ regulate before court ruled motions summary judgment, establishments to sell licensed alcohol. The Island, Liquormart, majority decided Inc. v. Rhode concludes that Court’s treat 484, 116 1495, 134 Liquormart ment of earlier First 1. The applies long concedes that it is well estab doctrine as the dancing lished "nude ... is actor con demands some sacrifice of a constitutional right exchange perimeters discretionary duct within the outer for an otherwise First Voters, Theatre, Inc., League benefit. See FCC v. Amendment....” Barnes v. Women 468 Glen of 3106, 364, 560, 2456, (1984) 566, 2460, U.S. 104 82 S.Ct. L.Ed.2d 278 111 S.Ct. 115 (invalidating provision (1991). Broadcasting of Public prohibited Act that noncommercial educational television stations received funds disagree majority's 2. I with the conclusion that endorsing editorializing); from candidates or Liquormart proposi- "reference the in 44 Educ., 563, Pickering v. Bd. 391 88 U.S. S.Ct. government may deny tion that not a benefit to a 1731, (1968) (holding 20 L.Ed.2d 811 that consti- person infringes a basis that his constitution- tutionally protected speech impermissible ally protected apply interests ... does not to this ground discharge public employment). from applicability case.” The of the unconstitutional conditions does doctrine not turn on whether ("Order") 3. SummaryJudgment at 6. Order discretionary conferral of the benefit condi- upon completely foregoing right tioned the to (internal omitted). quotations 4. 8 Order at engage expression upon foregoing or instead right engage expression to in that in certain Rather, places or or manners at certain times. 5. Id.

1001 Department’s regulations not “irration involving were cases state Amendment “unreasonable,” 116, provides support al” or id. at 93 at alcohol and nude S.Ct. that Ordinance 03-003 The for the conclusion Court’s discussion the state’s In authority Amendment. regulate not offend the First conduct with does a commu LaRue, 109, however, element, U.S. 93 square 409 S.Ct. hard nicative California (1972), 390, one of those 34 L.Ed.2d 342 later with decisions. Court in LaRue cases, upheld a earlier stated: serving dancing in establishments of nude agree that at least some of While we authority on the basis of the con alcohol performances regulations to which these Twenty-first upon by the ferred states are limits of address themselves within the Court, Liquormart, In Amendment. 44 protection the constitutional of freedom of LaRue, questioning holding in “[w]ithout expression, the critical fact is that Califor- reasoning insofar as it disavow[ed] ... performances nia has not forbidden these Twenty-first relied on the Amendment.” 517 merely pro- It across the board. 516, at 1514. Because the U.S. at 116 S.Ct. performances in scribed such establish- Liquormart in dicta that Court in stated Ub liquor by it ments that licenses sell would have been resolved same LaRue drink. erroneously

way relied had Court not Amendment, Twenty-first see at 93 S.Ct. at 397. now Id. Precedent 44 (“We Liquormart, at 1514 at makes clear that a state cannot condition a analysis persuaded are that the Court’s now on a forfeiture First Amendment benefit precisely 512-14, would have led to LaRue rights, Liquormart, see 116 placed time, if no reliance on the same result it had regulate place, or S.Ct. Amendment.”), protected with content- manner 03-003 concludes that Ordinance likewise Against prohibitions, Ward v. Rock based see scrutiny. Racism, should survive First Amendment 781, 791, U.S. (1989) (“[T]he govern presents first This case this circuit’s occa impose reasonable restrictions ment impact Liquormart sion to address the time, place, protected or manner of regulate on state justi provided speech, the restrictions ‘are LaRue, vitality LaRue. In the continued content of the fied without reference constitutionality of addressed the Court ____’” regulated speech (quoting Clark Department Beverage Alcoholic California Non-Violence, Community Creative regulations prohibited various Control 288, 293, 3065, 3069, 82 U.S. conduct in licensed establish

forms of sexual (1984))). Although Li L.Ed.2d Court, noting “[t]he ments. The state Court, dicta, quormart did not disturb the us, regulations challenged come to here LaRue, holding of the Court evisceratеd the perfor censoring in the a dramatic context Liquormart for that basis decision. theater, mance in a but rather in a context of U squarely Twen addressed whether the nightclubs liquor licensing bars and sell ty-first “qualif[ies] the Amendment constitu LaRue, drink,” abridging prohibition against laws tional under a reviewed speech embodied the First freedom of considerably more deferential than standard Amendment,” 517 ordinarily prohibitions targeted at reviews it, did the but it did not have before light protected behavior. now, a and as does our court to be “the Court LaRue the Court believed added what dancing nude in estab validity regulation prohibiting presumption in favor of the Twenty- liquor licenses. The in this lishments with state area 118-19, closely no occasion to evaluate requires,” id. at 93 therefore had first Amendment 397, constitutionality of such ordinance.6 decided that at the Court S.Ct. Bellanca, regulato- provide support for the Liquor likewise cannot v. 452 U.S. 6. N.Y. State Auth. 714, 2599, (1981), authority In Bel- ry seeks to exercise. S.Ct. 69 L.Ed.2d 357 101 lanca, 92, Iacobucci, 383, a statute Newport S.Ct. the Court 479 U.S. 107 (1986), by dancing licensed to sell majority, in establishments cited nude 1002 judice accordingly majority,

Unlike the I do not believe that the sub this court Liquormart compels uphold apply four-part dicta in should us to O’Brien test. UU challenged here. Barnes, addressed the Court the consti-

tutionality “prohibition against of Indiana’s C. complete nudity public places,” 501 U.S. at 564, 2459, applied 111 as S.Ct. at to establish- majority Liquormart reads to re 44 totally provide dancing ments that as quire this challenged to review the Court, although recog- entertainment. The scrutiny ordinance under the intermediate nizing dancing “is that nude con- O’Brien, applied in United States 391 U.S. perimeters duct within the outer of the First 367, (1968). 1673, 88 20 672 S.Ct. L.Ed.2d Amendment, so,” though only marginally ... scrutiny appropriate gen O’Brien is when a 566, 2460, id. at 111 at S.Ct. concluded ‍​​​​​​​‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​‌‌​‌​‌​​‌‌​‌​‌​​‌​​​‍that erally applicable regulation not directed at supported the law was valid it was communicative elements conduct nev by protecting a state interest order and rights infringes expression. ertheless of free morality, targeted was not at “the erotic O’Brien, 376-77, See at 88 S.Ct. dancers,” message by conveyed and im- scrutiny 1678-79. ap O’Brien involves the posed requirements greater no than those plication four-part of a test: interest, necessary serve state id. at government regulation 567-572, sufficiently [A] 111 S.Ct. at 2461-63. justified if within it is the constitutional Barnes, however, does control the case power Government; if it furthers an judice. sub challenged The statute important government or substantial inter- Barnes, although using the identical defini- est; if interest is unre- “nudity” tion of challenged as suppression expression; lated to the of free here, single expres- did not out one form of and if alleged the incidental restriction on sion for treatment. disfavored The Indiana greater First Amendment freedoms is no provided: statute than is essential to the furtherance of that person knowingly A intentionally, who or interest. (1) public place: engages in a in sexual (2) intercourse; engages in deviate sexual 377, Id. at 1679. The (3) conduct; appears in nudity; a state of concludes that the Court’s decision (4) genitals or fondles the of himself or Theatre, Inc., 560, in Barnes v. Glen person; public indecency, another commits 2456, 115 (1991), which a Class A misdemeanor. reviewed challenge under O’Brien prohibition public nudity (1988), § Indiana’s quoted Ind.Code 35-45-4-1 in- applied dancing, 2, to nude controls the 569 n. case 501 U.S. at 111 S.Ct. at Amendment,” liquor. holding, The sole of the basis Court’s id. at 101 S.Ct. at 2602. Bel- however, power upon jurisprudential underpin- was the it believed the lanca thus rests Twenty-first ning by upon longer Amendment conferred no followed the Court. states to regulate alcohol. The Court concluded that Likewise, Iacobucci, following La- "[¡judged by the standards announced in LaRue Bellanca, upheld prohibit- Rue and an ordinance Inn, Inc., [v. and Doran Salem ing "performing nearly nude" in estab- (1975), L.Ed.2d which fol- liquor. lishments licensed to sell 479 U.S. at 93 LaRue], lowed at issue the statute here is not n. n. S.Ct. at 384 1. The sole rationale U.S. at unconstitutional.” 101 S.Ct. at by upholding regula- advanced the Court in greater-includes-the-lesser Relying upon power tion was the that the Court believed the discredited, rationale that been has since see 44 Twenty-first conferred Amendment states to 510-12, 1512; Liquormart, 116 S.Ct. at regulate alcohol. See id. at 107 S.Ct. at 386 infra I.C, (“ Section note Court reasoned that presumption ‘Given the added in favor of the power the "State’s to ban the sale alcoholic validity ... this area that the beverages entirely includes lesser requires,’ plain Amendment liquor premises that, Bellanca, topless ban the sale of where maintaining as in the interest occurs,” Bellanca, outweighs U.S. at by order in free the interest "[wjhatever nude.’’) LaRue, (quoting artistic or 118-19, 397). topless Liquormart, communicative value attach to danc- After 44 aрpear prece- overcome State’s exercise of its Bellanca and Iacobucci lack powers arising

broad under the dential value.

1003 contrast, chal be to be sup- 2. In cannot said unrelated “to the 2462 n. “knowingly lenged expression it unlawful to pression here makes of free within the mean- suffer, allow, in, exhibit, par permit, engage ... [and of O’Brien thus outside of is] with, in, any ticipate or be connected motion altogether.” test O’Brien’s Texas v. John- show, performance, presen or other picture, son, 2533, 2543, 491 U.S. 109 S.Ct. which, premises, the licensed in tation (1989).7 nudity part, depicts in or sexual whole or distinguished regula- This often any conduct or simulation thereof.” se, proscribing nudity per including tions added). (emphasis 08-003 Un Mobile Ord. nudity general proscriptions particular on in Barnes, upheld like in which fo the statute fora, regulations targeted expressive from at nudity simpliciter and not on forms cused on Tavern, In conduct. Faloon Inc. v. Grand messages they conduct the Wicker, (11th Cir.1982), 943 670 F.2d we applies convey, Mobile ordinance the upheld city nudity banning a on only that inherent to forms of conduct are premises where alcohol was served. The traditionally—communicative: ly—and mo ordinance, nоw, the unlike one before us did shows, “oth pictures, performances, and tion single nudity “any picture, out in motion presentation^].” er Int'l Eateries Am. Cf. show, performance, presentation,” or other County, v. Broward 941 F.2d 1161 simply nudity but all rather banned estab- Cir.1991) (11th (noting distinction between offering alcohol for at lishments sale. See id. regula applicable, generally content-neutral regulation 944 n. 2. Because the was not thus “precise those conduct tions and behavior, targeted traditionally expressive at ly its communicative attrib because utes”) applied scrutiny we O’Brien U.S. at 111 (quoting Pensacola, (Scalia, Krueger J., ban. concurring in the at 2466 S.Ct. (11th however, Cir.1985), omitted)), denied, (emphasis we invali- judgment) cert. 920, 112 1294, 117 a ban almost identical to that Grand dated (1992). because, by pro Faloon unlike the ban Grand A that terms Faloon, by legitimate only supported which a traditional forms was hibits concluding specific dancing, ban nude does not mean 7. En route to that O’Brien intermedi- us, require- satisfy that means chosen will ate controls the case before the ma- Rather, of the First Amendment. ments challenge jority argues as-applied that requires Amendment often courts to invali- First simply a stat- Barnes was claim that Indiana regulations accomplish that that law- date ends prohibited unconstitutional because it ute "was by fully achieved different means. could be dancing” and thus that claim Barnes Johnson, Compare 410, Texas v. 406- against was "same claim is made [that] 2533, 2540-2543, 105 L.Ed.2d respect, I With all due be- Mobile ordinance.” (1989) (invalidating prohibit- state law that majority misapprehends the differ- lieve that object[s],” ed "desecration of venerated as-applied challenge a ence con- between by singling symbolic objects protection, for out challenge to a tent-neutral and a facial only implicated was asserted interest state's regulation. content-based flag person’s "a treatment of the commu- when challenged by Barnes did not The statute O’Brien, message”), some with nicates specifically proscribe dancing, its terms (upholding conviction prohibited public nudity—and but rather all burning pro- that card under draft statute incidentally prohibited thereby some otherwise "knowingly "knowingly destroying]” or scribed mutilating]” certificate). expression. lawful respondents That the claim raised Registration a Selective Service Indeed, case sounded in First the First Amendmеnt claim Amendment does not mean that their was great- part proposition stands in by appellants case, in the regulate identical to one made authority power—in er long distinguished pow- case us. Courts have always before nudily—does not include the lesser targeted regulations case, solely content-based authority between ban ex- er—in this hand, generally expression, ap- nudity. one pressive involving 44 Li- See conduct plicable, (rejecting inci- quormart, content-neutral freedoms, dentally on the greater-includes-the-lesser reading burden the First Tribe, generally stating L. Consti- "[t]he See American text other. Amendment and 12-2, (1988). Simply §§ be- Constitu- Law 12-3 makes clear that the tutional First Amendment speech regulate presumes attempts is within ac- cause it tion end, attempts regulate categorical dangerous complish particular than such are more conduct”). a more ban on includes fortiori government regu- consistently and substantial interest in have reviewed such content- lating likely activities to lead to breaches of scrutiny based restrictions with a level of peace, the record demonstrated that the searching scrutiny, more than O’Brien which city’s expression. motive towas restrict applied generally applicable, we have eon- F.2d at regu- 855-56. Both cases addressed regulations, majority tent-neutral is in- facially nudity lations that banned all in es- conclude, correct simply because the alcohol, tablishments licensed to serve rather claim before the court challenge is a to a solely nudity than in the course of tradition- ordinance, that Barnes’s O’Brien ally expressive forms of Krueg- conduct. See scrutiny appropriate in this case.9 er, 3; Faloon, 759 F.2d at 853-54 n. Grand 670 F.2d at 944 n. 2. D. singles

Ordinance 03-003 on its face out nude entertainment and thus the “erotic Because I applies believe that the message conveyed” by that conduct. wrong scrutiny, level of I address the Barnes, 111 S.Ct. at 2463. City’s time, argument place, that and manner by Ordinance 03-003 would not its terms scrutiny—another form of intermediate scru apply, example, to a nude waitress serv- tiny—is applicable view, my in this ease. ing drinks at a licensed establishment or to determining appropriate level of scru patron nude, entering such a club whereas tiny, this court should look to the character apply production it would to a of “Hair” or regulаtion. of the regulation If the is con “Equus”—or any production other artistic singles tent-based—because it out one form nudity, that includes however minor or inci- for disfavored treatment—then dental—at a club licensed to sell alcohol. searching scrutiny appropriate. See Boos Barnes, 501 U.S. at 585 n. Cf. Barry, 485 U.S. (Souter, J., n. 2 concurring judg- (1988). If, 99 L.Ed.2d 333 on the other ment) (“It is difficult to see ... how the hand, is content-neutral—be enforcement of against Indiana’s statute nu- justified cause it is not “reference to the dity production in a ‘Equus’ of ‘Hair’ or content regulated speech,” Va. State somewhere other than an ‘adult’ theater Pharmacy Bd. v. Va. would Citizens Consumer further the State’s interest avoid- Council, Inc., effects....”). 748, 771, harmful In- 1817, 1830, se, (1976), targeting nudity per stead of 48 L.Ed.2d 346 which but rather clear- ly permissible “secondary to the municipal speech, exercise of effects” see olthat authority, Theatres, supra, Playtime Inc., state see Renton v. the Mo- targets 41, 47, bile only 925, 929, ordinance conduct with (1986)—then communicative elements.8 time, Because courts less-searching place, and majority suggests 8. The suggest "[w]e cannot as- that Barnes's O’Brien should any regulation addressing sume that ing nude danc- apply involving regulating all cases ordinances regulation," ais content because "controver- Instead, nudity. merely cited Barnes rages sy society large” both in academia and support the statement that "the Court has precise message over what con- recognized police pow- that the States’ inherent however, veys. thought, I would have that an provide ample authority ers to restrict the kind of targeted ordinance at communicative activities 'bacchanalian revelries’ described in the LaRue as, express multiple messages is as invidious opinion regardless beverag- of whether alcoholic than, if not targets more so an ordinance that Liquormart, es are involved.” 44 merely message. only one One need consider a Court, S.Ct. at 1514. I doubt in an- simple example to see how subversive of basic nouncing a decision that restricted majority’s reasoning First Amendment values regulate speech, suggest meant banning sup- is: all would regula- courts now should evaluate content-based press array messages a wide that could be tions under the more-deferential O’Brien stan- conveyed by dancing, yet, according to the ma- Instead, dard of review. the Court's citation to jority, permissible would be be- merely Barnes confirms that states and munici- targets any cause "we cannot assume” that it one palities presumptively may regulate nudity with particular message. generally applicable, content-neutral Moreover, contrary majority's wholly unsup- passed by nances—ordinances unlike that assertion, ported Liquormart the Court in 44 did in this case. scrutiny [of id. effect crime and urban may appropriate, deterioration] be see manner 46,106 zoning attempt which these ordinances to at 928. at S.Ct. avoid, not the dissemination of ‘offensive’ contends, and the The speech”). promul agrees, the was not Ordinance Eateries, ap- In International disagreement the gated of a with because uphold zoning a local plied Renton to ordi- conveyed by message dancing, nude but restricting permissible nance the locations attempt regulate to the sec rather was presenting clubs non-obscene danc- dancing. ondary of nude effects time, ing. Applying and place, manner scru- Renton, majority rely upon supra, and the tiny, challenged this court concluded that the Theatres, Inс., Young 427 Mini v. American (1) gov- ordinance: furthered a substantial (1976), 2440, 50, U.S. “protecting quality the ernmental interest Am. v. Broward Coun and Int’l Eateries of secondary urban effects life from the (11th 1157, Cir.1991), ty, 941 F.2d 1161 cert. (2) 1162; businesses,” at adult 941 F.2d was denied, 1294, 112 117 U.S. S.Ct. 503 narrowly tailored to further that interest be- (1992). Young, In and 517 Renton ‍​​​​​​​‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​‌‌​‌​‌​​‌‌​‌​‌​​‌​​​‍L.Ed.2d only cause it focused those businesses zoning upheld the Court ordinances restrict effects, 1163; likely secondary to at cause id. ing for adult the permissible the locations (3) and allowed reasonable alternative ave- dancing. Al presented aters there nues communication because were though regulations challenged in those locations” where “sufficient alternative specialize in theaters that “treat[ed] cases lawfully operate, at theaters could id. 1165.10 differently from other adult films kinds theaters,” Renton, significant difference between the or- 475 U.S. at challenged dinance International Eateries at and thus at first blush seemed to be here, however, content-based, challenged the one is that the Court in each case con and ordinance, justified zoning the former was whereas cluded that were regu ease is a the content of the the one before us direсt without reference to they Closely conduct.11 speech were “aimed not lated because read, Renton, ..., Young, and International Eat- of the films but rather at at content apply only zoning secondary eries to ordinances. See of such theaters on effects Renton, surrounding community,” (emphasis in 106 S.Ct. at 929-30 id. designed (“[Zfoning to original); Young, 427 at 71 n. ordinances combat accord U.S. Renton, secondary effects of such 2453 n. 34. exam the undesirable reviewed under the ple, upheld district businesses are be court’s “city’s pursuit applicable to ‘content-neutral’ its zon standards conclusion (em- time, regulations.”) place, sup and manner ing here was unrelated interests added); phasis 427 at 96 expression” Young, pression of free because (“[W]hat ultimately at “by at stake its S.Ct. Court believed that place crime, nothing prevent more than designed pro terms limitation [was] trade, exhibited----”); may property adult films be city’s retail maintain where tect the (“[T]he Eateries, values, preserve at 1159 Su- generally protect and Int’l some cir- city’s preme that under quality neighborhoods, com held zoning districts, may cumstances cities enact quality mercial urban 929; require movie theatres to ac nances that adult life.” 475 U.S. at S.Ct. areas, only provided that the in certain Young, 427 n. locate cord (noting secondary is to control the purpose n. “[i]t [the] 2453 34 Contrary majority’s suggestion, secondary-effects Ordi- applied anal- 11. 10. We the Renton “geographically [] does seek ysis was nance 03-003 in International Eateries because issue zoning separate establishments validity adult entertainment ordinance similar to (Em- Young. commercial establishments.” See 941 F.2d from other considered in Renton added). Instead, seeks cat- Distinguishing phasis the Ordinance we concluded at 1161. egorically in establish- ban nude inappropriate was that O’Brien they be located—that regulation “single[d] ments—wherever out nude rather broadly prohibiting public nudity." all Id. serve alcohol. than businesses.”) (em effects of these right.” Liquormart, at added) (internal phasis omitted); quotation Although Court and this York, see also Buzzetti v. New that, zoning regulations circuit have (2d Cir.1998) (upholding city’s F.3d 134 “Zon policy, dissipated as measures of social have Amendment,” which “does not forbid the theaters, segregated the effects of adult operation any category of business has, [but relying neither without on a now-dis ijnsteаd ... restricts the areas which cer credited view of the Amend sexually-oriented may oper tain businesses ment, upheld outright targeted solely an ban ate”). Indeed, zoning regulations are amena protected by at conduct the First Amendm time, place, scrutiny ble to and manner ent.12 Because I conclude that the second because, part although they least in restrict ary-effects exception inapplicable in this use, given they locations available for a case, analyze I believe that this court should generally open leave some areas for the dis Ordinance 03-003 as a content-based restric Renton, 54, 106 favored use. See tion. (“[The City sought has] to make some areas available for adult theaters and E. patrons,

their pre while at the same time serving quality community life My conclusion that Ordinance 03-003 is a large by preventing those theaters from protected content-based restriction on ex- This, locating all, in other areas. after is the pression that must be evaluated under zoning.”); Young, essence of 427 U.S. at 71 judicial searching strong sup- finds n. 96 S.Ct. at 2453 n. 35. port in ease law. This court has distin- guished regulations nudity between zoning Unlike ordinances (and permissibly incidentally) pro- burden Renton, Young, Eateries, and International tected imper- preserved which for adult entertainment missibly target protected expression for estate,” Renton, “ample, accessible real sanction. In City Leverett v. Pinellas U.S. at City Park, (11th Cir.1985), 775 F.2d 1536 this regulation prohibits Mobile’s establishments upheld against court a First Amendment present that wish to serve alcohol and challenge an ordinance nudity in operating anywhere. from Of course, the course of City food and drink service majority point as the and the out, appellants apply protected ordinance did not provide are free to nude danc- expression, long dancing. their current such as they locations as as See id. at 1540. willing forego companion are The court privilege struck down a serving stated, however, already prohibited alcohol. As nance that “nude or see su- semi-nude I.A, pra argument Section ignores entertainment commercial establish- ment,” proposition government added), well-established (emphasis id. at 1537 howev- er, because, not condition the “conferral of [a] bene- as a direct of conduct fit ... on the protected by Amendment, surrender оf a constitutional the First the court Barnes, Likewise, argued 12. In Justice Souter County, his con- Inc. v. St. Johns Cafe justify application currence that Indiana could (11th Cir.1995), aff'g F.Supp. 66 F.3d 272 generally applicable proscription a dity nu- (M.D.Fla.1994), this court affirmed the dis to nude because the state has a governmental- trict court’s conclusion that the legitimate government and substantial interest in prong interest of the O’Brien test was satisfied combatting secondary effects of adult enter- because, alia, inter combatted concurrence, however, simply tainment. His sought secondary effects of in adult entertain justify the burden on First Amendment F.Supp. ment. 856 at 644. Like the statute in imposed by application freedoms of a content- challenged 207 was Cafe neutral statute to behavior—a result content-based, generally applicable, and not a contemplated by suggest O'Brien—and did not prohibition public nudity. majority's reli prohibition, zoning regula- that a tion, other than a misplaced. ance on 207 thus is targeted behavior could be Cafe justified by reference to the effects of targeted behavior. 03-003, well, under typical- Ordinance “the strict- standard subjected it “the stricter typically in- er standard used review an infringement pro- review ly used to an fringement protected liberty on a interest justified solely liberty under interest tected justified solely government’s police under the power,” id. at 1540 government’s police Leverett, power.” Pensacola, 775 F.2d at 1540. Krueger (citing (11th Cir.1985)). The noted F.2d 851 regu- justify in order to a content-based F. city had protected expression, the lation with than obligation to “come forth more view, my satisfied this in- legitimate simply an articulation of some stricter standard. To survive Amend- First justify city could have had to terest that must, minimum, at a scrutiny, ment Leverett, at 1540 prohibition.” its in regulating interest demonstrate omitted).13 (internal Although the quotations case on the conduct at issue this “is based eonclusory language contained in the something other a desire to the than censor exploi- “competitive commercial community’s nances that communication because of the nudity public Krueger, is adverse the at tation of of its content.” 759 F.2d dislike order, health, good City and it peace, argues morals and 854. The that acted to ad- public secondary interest of the dress the adverse effects of it is the best [that] consumption combined alcohol health, safety restrict with and convenience to preamble ...,” 1539, to Ordinance 03-003 nudity at was sufficient id. such City targeting that makes clear was not generally proscribing justify the ordinance conduct, message expressive but food service because nudity in the course of secondary combatting the effects rather was govern its did not “on face that ordinance interests of that behavior.14 The stated Amendment,” by First activity protected preamble—discouraging “un- the Ordinance’s language could not save the id. avoiding “distur- desirable behavior” and prohibiting nude entertainment. bances”—are, course, legitimate govern- Leverett, The ordinance invalidated Leverett, however, mental interests. As targeted solely expressive con which was showing City has no as to the “the made duct, indistinguishable from the one chal for its articulated concerns factual basis BSA, King lenged here. also Inc. v. See ordinance] passage [the motivation (9th County, 804 1107-08 Cir. F.2d in the ordi- beyond the conclusions stated 1986) (enjoining explicit operation statute itself,” showing a nance type topless ly banning “common barroom “justify infringement that is insufficient “[prohibition catе dancing” because the of a expression,” majority id. The protected on including protected expression, that gory of City permissibly relied concludes sexually only explicit, can be which is comming- findings that the upon other cities’ governmental it furthers a substantial where produces undesir- ling of alcohol and suppression free ex interest unrelated to Although is cor- able effects. ... where pression First Amendment does “[t]he rect by city, enacting zoning less ] could not be served a means require [a interest a before ordinance, activity”). produce I to conduct new studies or intrusive on First Amendment independent already gener- of that court review evidence am convinced that this should Indeed, Leverett, ("When City argument by the it was at 1540 a fun 13. See 775 F.2d adult about effects of entertainment worried alone, freedom damental interest such as Renton, city was the regulated, City must also show that than the effects of S.Ct. at rather legitimate 'more than concern it articulates has consump- with alcohol entertainment combined grounds, merely speculative factual and that tion, unconvincing because the would be actually motivating factor in the was Sammy's dancing; been permits nude has still p alcohol) (without presenting nude since a s began, yet Ordi- litigation has not violated this 03-003. nance cities, by long ated other so as whatever II. city reasonably evidence the relies gener This court does not have before it a problem believed to be relevant to the ally applicable public proscription nudity, addresses,” Renton, city see, e.g., 501 U.S. at 569 n. added),15 (emphasis 106 S.Ct. at 931 general prohibition at 2462 n. or a consistently required significantly nudity in establishments licensed to serve stronger justify showing to content-based solely alcohol that is not limited behavior outside of conduct, see, Tavern, e.g., Faloon Inc. Grand context, see, Leverett, zoning e.g., (11th Wicker, 670 F.2d 944 n. 2 Cir. assertion, unsup- F.2d at 1540. The mere 1982). Presumably, ap either of those

ported by any legislative findings, city that a proaches accomplished City’s would have seeks address the undesirable goals avowed and survived First Amendment activity effects of a disfavored is insufficient Instead, scrutiny.16 of Mobile chose justify by pro- its terms problems to address the associated with “nu only protected by hibits conduct that is conduct[,] dity, depiction sexual and [the] First Amendment. coupled thereof[ ] with alcohol 03-003, places,” City of Mobile Ord. sub findings, Even if the had made more- jecting only activity to criminal sanction over, City’s I have serious doubts that the clearly recognized protection to be within the discouraging interest in undesirable behavior of the First Amendment. I Because believe avoiding disturbances would be sufficient prohibits City that the First Amendment justify Ordinance 03-003’s content-based enacting of Mobile from such a Furthermore, given restriction. the avail- misapplied long- and that ability regulatory of alternative means that principles, established First Amendment I City’s accomplish goals could avowed respectfully DISSENT. singling protected expression without out

sanction, II, my see Section view infra satisfy Ordinance 03-003 could not the means

scrutiny requires. that the First Amendment

I therefore would hold that the district court granting summary judgment erred in fa- appellants’ vor of the First Amend- claim ment and that the ‍​​​​​​​‌​‌‌‌​‌‌​​​‌​‌​​​‌​​​‌‌​‌​‌​​‌‌​‌​‌​​‌​​​‍district court should granted summary judgment have in favor of appellants challenge on their facial to Ordi- nance 03-003. Eateries, (hold-

15. Accord Int'l 941 F.2d at 1162 district court that the Akron ordinance must be city that a "need not conduct its own stud- facially struck down as unconstitutional under ies” in order to "have a reasonable basis for its doctrine"; the First Amendment overbreadth protected against [by belief that the harm to be stating attempt “[t]he ordinance makes no Likewise, exists”). zoning in fact ordinance] regulate only those activities associat- proof requirements that are secondary ed with harmful effects and includes targeted expression may be relaxed. See limiting provisions”). Contrary majori- no 584-85, 111 S.Ct. at 2470 however, ty’s suggestion this court never has (Souter, J., concurring judgment) ("[L]eg- in the municipality allowed a state or to enact a con- seeking secondary islation to combat the effects tent-based restriction on based of adult entertainment need not await localized showing mere that other have localities identified proof of those effects.... I do not believe that an evil to be addressed. required affirmatively State is to undertake to case.”). litigate repeatedly every this issue course, approaches Grille, Akron, Of these could fail First Triplett But Inc. v. cf. they merely (6th Cir.1994) Amendment if were intend- (holding F.3d 135-36 suppress ed to mask a motive to "because the has failed to demonstrate a protected expression. sacola, Krueger City link between in non-adult entertainment See Pen- effects, (11th Cir.1985). agree we do with the

Case Details

Case Name: Sammy's of Mobile, Ltd. v. City of Mobile

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: May 8, 1998

Citation: 140 F.3d 993

Docket Number: 96-7073

Court Abbreviation: 11th Cir.