Wacko's Too, Inc., et al. v. City of Jacksonville, et al.Wacko's Too, Inc., et al. v. City of Jacksonville, et al.
In the
United States Court of Appeals
For the Eleventh Circuit
No. 23-10801
WACKO‘S TOO, INC.,
a Florida, corporation d.b.a. Wackos,
MHHS-SINSATIONS, LLC,
a Florida limited liability company d.b.a. Sinsations,
PATMILT, INC.,
a Florida corporation d.b.a. Passions,
BARE ASSETS, INC.,
a Florida corporation,
EMPERORS, INC.,
a Florida corporation d.b.a. Emperor‘s, et al.,
Plaintiffs-Appellants,
NEVA CLINKSCALE, et al.,
Plaintiffs,
versus
a Florida municipal corporation,
Defendant-Appellee.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:22-cv-00798-TJC-MCR
No. 23-11273
EMPERORS, INC.,
a Florida corporation,
d.b.a. Emperor‘s Gentleman‘s Club,
SES JAX, LLC,
a Florida limited liability company,
d.b.a. Flashdancers,
Plaintiffs-Appellants,
STEPHANIE MEDINA, et al.,
Plaintiffs,
versus
a Florida municipal corporation,
SHERIFF, DUVAL COUNTY,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:19-cv-01110-TJC-MCR
No. 23-11274
WACKO‘S TOO, INC.,
a Florida corporation,
d.b.a. Wacko‘s,
MHHS-SINSATIONS, LLC,
a Florida limited liability company,
d.b.a. Sinsations,
PATMILT, INC.,
a Florida corporation,
d.b.a. Passions,
BARE ASSETS, INC.,
a Florida corporation,
a Florida corporation,
d.b.a. Gold Rush,
et al.,
Plaintiffs-Appellants,
BIG B RANCH, INC.,
a Florida corporation,
d.b.a. Cocktails Showbar and Lounge,
et al.,
Plaintiffs,
versus
CITY OF JACKSONVILLE,
a Florida municipal corporation,
SHERIFF OF DUVAL COUNTY, FLORIDA,
N. O. ARCHBOLD,
in her individual capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 3:20-cv-00303-TJC-MCR
NEWSOM, Circuit Judge:
We must decide whether a Jacksonville ordinance that effectively prohibits erotic dancers under the age of 21 from performing in adult-entertainment establishments violates the First Amendment, and relatedly, whether the ordinance‘s licensing scheme applicable to older dancers imposes an unconstitutional prior restraint. After careful consideration, and with the benefit of oral argument, we hold (1) that the ordinance‘s age restriction must be treated as a content-neutral regulation of expressive activity and is thus subject to intermediate scrutiny, which it survives, and (2) that the ordinance‘s licensing scheme embodies sufficient procedural protections to save it from invalidation as a prior restraint. Accordingly, we affirm the district court‘s decision.
I
A
The appellants here—Wacko‘s Too, Sinsations, Bare Assets, Passions, Emperors, and Flashdancers, along with individual erotic dancers—own, operate, or perform in adult-entertainment establishments (i.e., strip clubs or bikini bars) in Jacksonville, Florida. At some point, each of the appellant businesses has employed one or more erotic dancers under the age of 21. So, unsurprisingly, the appellants were none too pleased when Jacksonville enacted an ordinance requiring erotic dancers to obtain Work Identification Cards—which, significantly, the measure makes unavailable to anyone who isn‘t yet 21. The upshot, then, is that the ordinance
Separately, for aspiring dancers who have turned 21, the ordinance prescribes a process for obtaining a license. First, a performer must submit to the sheriff an application form on which she provides details about her physical appearance, contact information, and work history, along with an attestation that she hasn‘t been convicted of certain crimes. See Jacksonville, Fla., Ordinance 2022-172-E at 3 (Apr. 26, 2022). The applicant must also complete a free sex-trafficking education program. See id. at 3–4. Once the sheriff receives a dancer‘s application, he has 14 days to verify her information and then either approve or deny her license request. See id. at 5. The ordinance permits the applicant to continue to dance while her application is with the sheriff, and if he fails to act within the prescribed 14-day window, “the application shall be deemed granted.” Id. at 5–6. If the sheriff denies a dancer‘s application, she “may request emergency injunctive relief” from a state court, but she may not dance while her petition for judicial review is pending. Id. at 7.
The ordinance‘s express purpose—as declared in its first section—is to “reduc[e the] criminal activities” occurring in and around adult-entertainment establishments:
The intent of this legislation is to enact a scheme of uniform and non-discriminatory time, place and manner regulations for performers at adult entertainment establishments and dancing entertainment establishments in the City. It is the Council‘s intent that
these regulations be interpreted and applied to not eliminate all forms of adult entertainment, but instead, to be narrowly tailored and limited to assist in reducing criminal activities occurring at these facilities.
Id. In support of its stated “intent,” the city council cited statistics linking strip clubs to sex trafficking, in particular—and, even more particularly, to the trafficking of minors. So, for instance, the ordinance‘s recitals emphasize that “victims of sex trafficking are frequently recruited to work as performers or employees in strip clubs,” that “persons under the age of twenty-one are more likely to [] remain within and dependent on the community in which they were raised,” and that “research studies have identified the average age of which a person in the United States enters the sex trade for the first time is age seventeen.” Jacksonville, Fla., Ordinance 2020-74-E at 3–4 (Feb. 25, 2020).
B
The appellants filed three lawsuits challenging two successive iterations of Jacksonville‘s ordinance—the original version, enacted in 2020, and an amended version, enacted in 2022. Happily, none of that procedural complexity is particularly important for present purposes.1 All that really matters here is that both versions
The district court upheld both the ordinance‘s age restriction and its licensing scheme. With respect to the former, the court concluded that the restriction is a content-neutral speech regulation, as it is aimed not at any particular message underlying the dancers’ expression but, rather, at attempting to “curtail the negative secondary effects of having vulnerable eighteen to twenty year-old performers exposed to human and sex trafficking.” Doc. 32 at 12. The court held that the age restriction survived intermediate scrutiny because it furthers the City‘s “substantial” interest in combatting human trafficking and is appropriately tailored to achieving that interest.2
Before us, the appellants contend that the district court was wrong on both counts: They insist (1) that the ordinance‘s age restriction is a content-based speech restriction that is subject to and fails strict scrutiny and (2) that the ordinance‘s licensing scheme imposes an unconstitutional prior restraint and lacks the necessary procedural protections. Both issues presented on appeal are questions of law, which we review de novo. Schultz v. Alabama, 42 F.4th 1298, 1311 (11th Cir. 2022); BellSouth Telecommunications, Inc. v. Town of Palm Beach, 252 F.3d 1169, 1176 (11th Cir. 2001).3
We‘ll begin by considering whether the ordinance‘s age restriction—which, again, effectively prohibits erotic dancers under the age of 21 from performing in adult-entertainment establishments—violates the First Amendment. We‘ll then explore whether the ordinance‘s licensing scheme imposes an unconstitutional prior restraint.4
The First Amendment, which applies to state and local governments by dint of the Fourteenth, prohibits the enactment of laws “abridging the freedom of speech.”
1
To assess the age restriction‘s constitutionality, we must first determine what level of constitutional scrutiny to apply. And to do that, we must determine whether the restriction is “content-based” or “content-neutral.” As the Supreme Court has recently explained, a law is content-based either (1) if it applies on its face “‘to particular speech because of the topic discussed or the idea or message expressed‘” or (2) if, though facially neutral, it “‘cannot be “justified without reference to the content of the regulated speech“’ or was ‘adopted by the government “because of disagreement with the message the speech conveys.“‘” TikTok Inc. v. Garland, 145 S. Ct. 57, 67 (2025) (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163–64 (2015)).
By contrast, a content-neutral restriction is one that is “justified without reference to the content of the regulated speech.” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (citation and quotation marks omitted). “Content-neutral laws . . . ‘are subject to an intermediate level of scrutiny because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue.‘” TikTok, 145 S. Ct. at 67 (quoting Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 641 (1994)). In broad brushstrokes, a court applying intermediate scrutiny “will sustain a content-neutral law ‘if it advances important governmental interests unrelated to the suppression of free speech and does not burden substantially more speech than necessary to further those interests.‘” Id. (quoting Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 189, (1997)).5
Having concluded that the age restriction is content-neutral, the district court applied intermediate scrutiny—specifically, the variation of that standard set out in United States v. O‘Brien, 391 U.S. 367 (1968). There, the Supreme Court held that a law will survive First Amendment scrutiny
[1] if it is within the constitutional power of the Government; [2] if it furthers an important or substantial
governmental interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.
Id. at 376–77. Applying O‘Brien, the district court reasoned that the ordinance‘s age restriction “furthers the City‘s substantial government interest in combatting human trafficking and is appropriately tailored” to achieving that interest. Doc. 32 at 30.
Before us, the appellants argue that the age restriction is content-based and therefore subject to strict scrutiny. And, they contend, the ordinance can‘t survive strict scrutiny because even though preventing human trafficking is unquestionably a compelling government interest, the age restriction isn‘t narrowly tailored. In particular, they say, it is fatally underinclusive in that it fails to protect 18-to-20-year-old non-dancer strip-club employees like servers and hostesses, who, according to the City‘s own evidence, are also at risk of being trafficked.
To be sure, the ordinance‘s age restriction feels content-based. Conspicuously, it doesn‘t apply to all 18-to-20-year-old performers, or even all dancers; rather, it applies only to those engaging in a particular type of expressive conduct—namely, “erotic” dance (as opposed to, say, jazz, ballet, or tap). But as the district court observed, we held in Zibtluda “that when the purpose of an adult entertainment ordinance is to ameliorate the secondary effects of adult businesses, intermediate scrutiny applies.” 411 F.3d at 1284. In so holding, we explained that “although these ordinances are not strictly content-neutral, they are simply treated as such.” Id. at 1285 (emphasis added). Indeed, we candidly acknowledged that restrictions of the sort at issue here are, in substance, content-based: “These regulations define the regulated conduct by its expressive content, and, to this extent, they are ‘content-based.‘” Id. (quoting Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1306 (11th Cir. 2003)). Even so, we explained that when a restriction‘s purpose is to combat the “secondary effects” associated with adult businesses, then “[a]lthough content-based, such a regulation will be treated as if it were content-neutral if it serves a substantial government purpose that is unrelated to the suppression of the expressive conduct.” Id. (emphasis added) (citation and quotation marks omitted); accord, e.g., Artistic Entertainment, Inc. v. City of Warner Robins, 223 F.3d 1306, 1308–09 (11th Cir. 2000) (“Limiting the ordinance‘s reach to those venues [i.e., adult-entertainment establishments] reasonably perceived to pose a risk of creating such side effects does not turn the ordinance into a content-based restriction.“).
Pointing to the Supreme Court‘s intervening decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015), the appellants contend that a court may not recategorize a facially content-based restriction as content-neutral simply because its underlying purpose—here, to combat secondary effects like human trafficking—is unrelated to the expression‘s message. In Reed, the Court explained that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government‘s benign motive,
The appellants have a point. Reed is indeed quite clear that good intentions can‘t magically transform a facially content-based speech restriction into a content-neutral one. But here‘s the rub: As the district court noted, in the pre-Reed years, we clearly and repeatedly held—and in cases specifically involving adult-entertainment establishments—that “regulations that target undesirable secondary effects of protected expression are deemed content-neutral, and courts review them with an intermediate level of scrutiny,” Artistic Entertainment, 223 F.3d at 1308–09, and that “when the purpose of an adult entertainment ordinance is to ameliorate secondary effects of adult businesses, intermediate scrutiny applies,” Zibtluda, 411 F.3d at 1284. And under our precedent about precedent, “a prior panel‘s holding is binding on all subsequent panels unless and until it is overruled or undermined to the point of abrogation by the Supreme Court or by this court sitting en banc.” United States v. Archer, 531 F.3d 1347, 1352 (11th Cir. 2008) (citation omitted). Needless to say, “an intervening decision of the Supreme Court can overrule the decision of a prior panel of our court“—but to do so, the Supreme Court‘s decision “must be clearly on point.” Id. (citation and quotation omitted).
The Supreme Court‘s post-Reed decision in City of Austin v. Reagan National Advertising, 596 U.S. 61 (2022), likewise counsels caution. There, the Court rejected as too broad the suggestion that Reed means that “any classification that considers [the speech‘s] function or purpose is always content based.” Id. at 74. In fact, in City of Austin—which, like Reed, also considered a sign ordinance outside the adult-entertainment context—the Court emphasized that such an interpretation “would contravene numerous
In declining to revisit our existing secondary-effects precedents in light of Reed, we are in good company. Several of our sister circuits have rejected similar entreaties. See BBL, Inc. v. City of Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015) (“We don‘t think Reed upends established doctrine for evaluating regulation of businesses that offer sexually explicit entertainment, a category the [Supreme] Court has said occupies the outer fringes of First Amendment protection.“); Free Speech Coal., Inc. v. U.S. Att‘y Gen., 825 F.3d 149, 161 n.8 (3d Cir. 2016) (“[I]t is doubtful that Reed has overturned the Renton secondary effects doctrine.“); Association of Club Executives of Dallas, Inc. v. City of Dallas, Texas, 83 F.4th 958, 964-65, 970 (5th Cir. 2023) (“Both Reed and City of Austin concerned physical signs and said nothing about [sexually-oriented businesses] or the secondary effects doctrine. The Court ‘does not normally overturn . . . earlier authority sub silentio.’ So, it would be a mistake to interpret those decisions as silently spelling Renton‘s demise. To the contrary, City of Austin cautioned inferior courts against doing exactly that. More to the point, whether to overrule or modify Renton is the High Court‘s business, not ours. . . . To sum up, we hold that Renton remains good law and thus apply intermediate scrutiny to the Ordinance.” (citations and footnote omitted)).6
2
So, content-based though it may be, we are bound to “treat” the ordinance‘s age restriction “as if” it were content-neutral, Zibtluda, 411 F.3d at 1284, and apply intermediate scrutiny pursuant to the standard established in O‘Brien. See Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231, 1244 (11th Cir. 2022) (explaining that “[t]he O‘Brien test is used to evaluate regulations of expressive conduct” (citation and quotation marks omitted)).
To repeat, in O‘Brien, the Supreme Court held that a speech regulation is “sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction
The government‘s interest here—i.e., combatting human trafficking—clearly constitutes a “substantial governmental interest.” We recognized as much in Club Madonna, see id. at 1247, and the appellants don‘t contend otherwise. See Br. of Appellants at 45. The appellants do, though, contend (1) that the ordinance fails to “further[]” that important interest, O‘Brien, 391 U.S. at 377, and (2) that, in any event, it is “broader than necessary” to advance that interest, Club Madonna, 42 F.4th at 1242.
We have said that the “further[ance]” requirement entails a “modest standard” and that the government‘s burden in satisfying it is “not . . . rigorous.” Zibtluda, 411 F.3d at 1286 (citations and internal quotation marks omitted). In particular, we have held, the government “need only have a ‘reasonable basis’ . . . for believing that its policy will indeed further a legitimate interest,” and that its “basis can consist of the experience of other cities, studies done in other cities, caselaw reciting findings on the issue, as well as the officials’ own wisdom and common sense.” Id. (citations and quotation marks omitted) (alteration in original). The lone prerequisite is that “the enacting body must cite to some meaningful indication—in the language of the code or in the record of legislative
The ordinance here satisfies that standard. It includes more than a dozen “whereas” clauses reciting data, statistics, and research demonstrating, for instance, (1) that Florida is a hotbed of sex-trafficking activity, (2) that strip clubs play a significant role in sex-trafficking networks, (3) that “victims of sex trafficking are frequently recruited to work as performers or employees in strip clubs,” (4) that those under the age of 21 are at increased risk of becoming trafficking victims, and (5) that “sex trade at strip clubs is a common occurrence in Jacksonville.” Jacksonville, Fla., Ordinance 2020-74-E at 3–4 (Feb. 25, 2020). And in the district court, the city attached documentation supporting its recitals, along with an affidavit from a city council member stating that she had personally relied on the empirical evidence in supporting the ordinance’s enactment. Docs. 30-2, 30-1. Particularly because the “further[ance]” requirement is “not rigorous,” the city’s evidence is more than sufficient to constitute a “reasonable basis” for concluding that the ordinance will advance its interest in combatting sex trafficking. Zibtluda, 411 F.3d at 1286 (citations and quotation marks omitted).
Next up, tailoring: Under O’Brien, a content-neutral speech regulation can be “no greater than is essential to the furtherance of [the government’s] interest.” 391 U.S. at 377. The appellants
But the appellants are wrong as a matter of law. Even when applying strict scrutiny, the Supreme Court has said that while underinclusiveness may “raise[] a red flag,” the First Amendment “imposes no freestanding ‘underinclusiveness limitation.’” Williams-Yulee v. Fla. Bar, 575 U.S. 433, 449 (2015) (quoting R.A.V. v. St. Paul, 505 U.S. 377, 387 (1992)). And that is doubly true with respect to laws, like the ordinance here, that are subject to O’Brien’s more lenient intermediate-scrutiny standard. By its terms, O’Brien requires only that restrictions be “no greater than is essential,” 391 U.S. at 377 (emphasis added), or, as we have described O’Brien’s tailoring requirement, “no broader than necessary,” Club Madonna, 42 F.4th at 1242 (emphasis added). Intermediate scrutiny, the Supreme Court recently reaffirmed, operates to identify and invalidate laws that “burden substantially more speech than necessary”—not less.
The ordinance’s age restriction here may well be underinclusive, but it isn’t overinclusive in the way that O’Brien-style intermediate scrutiny forbids.
* * *
In sum, bound as we are to “treat” the ordinance’s facially content-based age restriction “as if” it were content-neutral and apply intermediate scrutiny, we hold that the restriction satisfies the standard articulated in O’Brien. Accordingly, we affirm the district court’s decision that the age restriction does not violate the First Amendment.
B
The appellants separately argue that the licensing scheme applicable to older erotic dancers imposes an unconstitutional prior restraint and fails to satisfy either of two necessary ameliorating conditions: (1) It doesn’t require the sheriff to render his decision concerning an aspiring dancer’s license application within a reasonable time, and (2) it fails to preserve the status quo pending judicial
The Supreme Court’s decision in FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), establishes the ground rules applicable here. There, the Court held that a prior restraint arising out of a licensing regime is not unconstitutional provided that two procedural safeguards are observed: (1) “[T]he licensor must make the decision whether to issue the license within a specified and reasonable time period during which the status quo is maintained”; and (2) “there must be the possibility of prompt judicial review in the event that the license is erroneously denied.” Id. at 228 (plurality opinion) (citing Freedman v. State of Md., 380 U.S. 51, 59 (1965)). The appellants here primarily emphasize the first safeguard.
1
The appellants first contend that the ordinance gives the sheriff too long to decide whether to approve or deny an aspiring dancer’s application. The ordinance requires the sheriff to render his decision within 14 days of receiving an application—after that, “the application shall be deemed granted.” It is undisputed that the ordinance “maintain[s]” the “status quo” while the sheriff considers an application—meaning that the applicant can continue to dance during that period—so the sole question is whether 14 days constitutes a “reasonable time period.” Id. We hold that it does.
First, as a matter of law, we have previously deemed lengthier periods reasonable. See, e.g., Cafe Erotica of Fla., Inc. v. St. Johns Cnty., 360 F.3d 1274, 1282–83 (11th Cir. 2004) (upholding a 30-day
In short, we hold that 14 days is not an unreasonable length of time to render a decision on a dancer’s license application and thus does not independently present any constitutional concerns.
2
We must separately decide whether the licensing scheme complies with FW/PBS’s mandate that the “status quo” be “maintained” while a would-be speaker’s application is under consideration. The focus of the parties’ dispute is the period as to which the status-quo-maintenance requirement attaches. The city contends that FW/PBS’s status-quo requirement applies only during the initial period in which the sheriff is deciding whether to grant the license. See Br. of Appellee at 38. The appellants, on the other hand, insist that the status-quo requirement extends further, to include “the gap period between the denial of an Identification Card by the Sheriff and the eventual ruling by a judge once the applicant files an appeal.” Br. of Appellants at 52. As already explained, the ordinance here permits a performer to continue to dance while the
It’s a tricky question, in no small part because FW/PBS isn’t exactly a model of clarity. In seeking to understand the rule emanating from that decision, we think it makes sense to rewind the tape and first examine its predecessor, Freedman v. Maryland, 380 U.S. 51 (1965). There, the Supreme Court considered a state statutory scheme that required film exhibitors to submit their movies to a state censorship board for preapproval. Id. at 54–55. The Court held that the First Amendment required the state to observe three “procedural safeguards.” Id. at 58. “First, the burden of proving that the film is unprotected expression must rest on the censor.” Id. “Second, while the State may require advance submission of all films, . . . the requirement cannot be administered in a manner which would lend an effect of finality to the censor’s determination whether a film constitutes protected expression.” Id. Importantly for our purposes, in connection with this second requirement, the Court held that “the exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film”—and, therefore, that “[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest
First, once the censor disapproves the film, the exhibitor must assume the burden of instituting judicial proceedings and of persuading the courts that the film is protected expression. Second, once the [censor] has acted against a film, exhibition is prohibited pending judicial review, however protracted. . . . Third, it is abundantly clear that the [] statute provides no assurance of prompt judicial determination.
Fast-forward to FW/PBS, in which a fractured Court considered Freedman’s procedural requirements in relation to a city ordinance that, like the one here, established a licensing scheme that applied to “sexually oriented businesses.” 493 U.S. at 220. Three Justices thought that Freedman applied only to true censorship schemes and was completely inapposite to content-neutral licensing regimes. Id. at 244 (White, J., joined by Rehnquist, C.J., dissenting in part); id. at 250 (Scalia, J., dissenting in part). Three others would have applied Freedman in its entirety to the city’s licensing regime. Id. at 238 (Brennan, J., joined by Marshall & Blackmun, JJ., concurring in the judgment).
It requires some squinting, but as we understand it, FW/PBS sets out two slightly different standards, which apply in different circumstances, depending on whether a prior-restraint scheme risks “the grave ‘dangers of a censorship system.’” Id. (quoting Freedman, 380 U.S. at 58). The first, more extensive version, which
First, Freedman and FW/PBS indicate that the more robust prior-to-judicial-review standard is logically and logistically paired
FW/PBS is different. The plurality’s description there of the “essential” safeguards that apply to non-censorious licensing regimes clearly omits any requirement that the government bring suit to enforce its restriction. See FW/PBS, 493 U.S. at 228; see also Dream Palace v. County of Maricopa, 384 F.3d 990, 1009–10 (9th Cir. 2004) (noting that the requirement to place “the burden of instituting proceedings on the state does not apply to [non-censorious] licensing schemes” governing adult-entertainment establishments (quoting Baby Tam & Co., Inc. v. City of Las Vegas, 247 F.3d 1003, 1008 (9th Cir. 2001))); Big Dipper Ent., L.L.C. v. City of Warren, 641 F.3d 715, 721 (6th Cir. 2011) (rejecting the argument that it was the government’s “burden . . . to file a lawsuit with respect to the denied application” of an adult-entertainment business). In the absence of any requirement that the government sue, it is thus
Second, the Supreme Court’s subsequent decision in City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004), is instructive. There, the Court upheld an adult-business licensing ordinance against a First Amendment challenge. Id. at 776. The issue was the required promptness of judicial review. The city first contended that while Freedman required “prompt final judicial decision” of challenges to censorship decisions, FW/PBS spoke only of the “possibility of prompt judicial review” of licensing decisions—meaning, the city said, only “speedy access to the courts, not . . . a speedy court decision.” Id. at 780 (emphasis in original) (citations omitted). The Court rejected this argument as making “too much of too little”: FW/PBS didn’t mean to allow courts to put licensing-decision appeals on their dockets rapidly but let them linger there indefinitely. Id. at 780–81.
Littleton is informative because it confirms what the plurality seemingly tried to make clear in FW/PBS—namely, that licensing laws that don’t pose “dangers of a censorship system” aren’t subject to all the requirements set out in Freedman. FW/PBS, 493 U.S. at 228 (quoting Freedman, 380 U.S. at 58). More particularly, Littleton indicates that an argument similar to the one the appellants make here—i.e., that FW/PBS mechanically applies two of Freedman’s three requirements—oversimplifies things. FW/PBS’s requirements are both (1) obviously, fewer in number that Freedman’s and (2) less obviously, but just as surely, less restrictive in scope. In short, Freedman’s requirements apply to censorship regimes that are highly discretionary and pose a greater risk of content discrimination, while FW/PBS applies more lenient requirements to relatively objective licensing schemes like the one at issue in this case. And the ordinance here satisfies FW/PBS’s more modest test because, among other reasons, it allows aspiring dancers to continue to dance while the sheriff considers their applications.
We similarly invalidated an ordinance in Lady J. Lingerie, Inc. v. City of Jacksonville because it “fail[ed] to put any real time limits on the zoning board” to decide whether to permit an adult business in a desired location. 176 F.3d 1358, 1363 (11th Cir. 1999). We held that this rendered the ordinance unconstitutional despite its provision allowing “an applicant to begin operating its business 45 days after applying” if the zoning board had not decided otherwise. Id. It was little use for a business to be allowed to “operate in limbo, not knowing whether the City will shut it down the next day.” Id. (emphasis added).
Accordingly, because the City’s ordinance maintains the status quo—in the sense that it allows an aspiring performer to continue to dance—while the sheriff decides whether to issue a license, we conclude that it satisfies FW/PBS’s standard applicable to licensing schemes and therefore avoids any constitutional concerns.
* * *
In sum, we hold that the ordinance’s 14-day period for making licensing determinations is reasonable and that the ordinance maintains the status quo during the relevant time period as required by FW/PBS. We therefore affirm the district court’s conclusion that the ordinance’s licensing scheme embodies sufficient procedural safeguards to save it from invalidation as a prior restraint.
III
For the foregoing reasons, we hold (1) that the ordinance’s age limitation must be treated as a content-neutral restriction on speech of would-be erotic dancers younger than 21, and that it survives intermediate scrutiny, and (2) that the licensing regime
AFFIRMED.
NEWSOM, Circuit Judge, concurring:
Needless to say, I agree with the majority opinion’s conclusion that this Court’s decision in Zibtluda, LLC v. Gwinnett County requires us to “treat[]” the Jacksonville ordinance’s facially content-based age restriction—which applies only to erotic dancers in adult-entertainment establishments—“as if” it were content-neutral, on the ground that the restriction’s “purpose” is “to combat the negative secondary effects of adult businesses.” 411 F.3d 1278, 1285 (11th Cir. 2005) (citation and quotation marks omitted). I also agree that the Supreme Court’s intervening decision in Reed v. Town of Gilbert, 576 U.S. 155 (2015), isn’t quite sufficiently on point to warrant casting Zibtluda aside. To be sure, the Court there held, in no uncertain terms, that “[a] law that is content based on its face is subject to strict scrutiny regardless of the government’s benign motive.” Id. at 165. But it did so in connection with a sign ordinance, not a strip club—and that’s enough to dissuade me from walking away from existing circuit precedent.
That said, I’m skeptical. So long as the Supreme Court deems erotic dancing a form of expression protected by the First Amendment, it seems to me that Reed’s logic applies foursquare and casts serious doubt on the continuing vitality of the “secondary effects” doctrine traditionally associated with City of Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986).
* * *
On its face, the age restriction here is indisputably content-based. After all, the ordinance effectively prohibits those under the
Why, then, should we blink reality and “treat” this self-evidently content-based restriction “as if” it were content-neutral? Because a quirk of First Amendment jurisprudence requires us to do so. In Renton, the Supreme Court upheld a local zoning ordinance that limited the locations in which adult movie theaters could operate. See 475 U.S. at 43. Though the law was most certainly content-based in that it applied only to cinemas screening a particular type of film—i.e., adult pictures—the Court reasoned that the restriction should be regarded as content-neutral because the government’s primary interest wasn’t to censor the movies’ messages but, rather, “to combat the undesirable secondary effects of such businesses.” Id. at 49.
The problem, as I see it, is that the government’s subjective motivation for imposing a speech restriction—whether virtuous, wicked, or somewhere in between—has nothing to do with the threshold question whether the restriction is, objectively, content-based or content-neutral. That’s a determination to be made on the face of the restriction, not on the government’s underlying purpose or intent. The Supreme Court said so expressly in Reed.
That seems exactly right to me. A speech regulation is either content-based or it isn’t—and its categorization as such is a function of its text, not its supposed subtextual purpose. That’s not to say that a government’s objective is irrelevant. Of course not. To the contrary, the worthiness and weight of the government’s justification plays an important role—but only downstream of the initial decision whether the restriction is content-based or content-neutral. In particular, it enters the show in act two, when the court
But the secondary-effects inquiry shouldn’t be allowed to jump the queue. A restriction’s justification should be considered not when determining which level of scrutiny to apply, but rather, in applying that scrutiny once determined. By permitting a secondary-effects justification to transform what was clearly a content-based law into one that is content-neutral, the Renton Court improperly conflated the level of scrutiny and its ensuing application.
What’s the big deal, one might reasonably ask? Why should we care whether the secondary-effects inquiry is conducted ex ante or ex post? Well, sometimes it matters—and in this case I think it
Had we been free to evaluate the ordinance as the content-based restriction it truly is, we would have applied strict scrutiny. Under that standard—to repeat—a law “may be justified only if the government proves that [it is] narrowly tailored to serve compelling state interests.” TikTok, 145 S. Ct. at 67 (quoting Reed, 576 U.S. at 163). And strict scrutiny’s narrow-tailoring component generally requires that a law be neither overinclusive nor (at least substantially) underinclusive. Cf. Williams-Yulee v. Florida Bar, 575 U.S. 433, 448–49 (2015) (stating that while “the First Amendment imposes no freestanding ‘underinclusiveness limitation,’” a “law’s underinclusivity raises a red flag,” for instance by sowing “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint” (citations and quotation marks omitted)). And while Jacksonville’s ordinance
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My takeaway: So long as the Supreme Court continues to hold that erotic dancing and the like are protected by the First Amendment, there will be a fatal disconnect between the logic of Renton and Reed. And as between the two, Reed—pursuant to which a law’s characterization as content-based or -neutral results from an examination of its terms, not its underlying purpose—seems to be on much firmer footing.