Sammy's of Mobile, Ltd. v. City of Mobile , 140 F.3d 993 ( 1998 )

United States Court of Appeals,
Eleventh Circuit.
No. 96-7073.
SAMMY'S OF MOBILE, LTD., an Alabama Limited Partnership; Sammy's Management
Company, Inc., an Alabama Corporation, Plaintiffs-Appellants,
v.
CITY OF MOBILE, a Body Corporate and Politic, Defendant-Appellee.
J & B SOCIAL CLUB, # 1, INC., d.b.a. The Candy Store, Jennifer Q. Bodiford; et al.,
Plaintiffs-Appellants,
v.
The CITY OF MOBILE, ALABAMA, Defendant-Appellee.
May 8, 1998.
Appeal from the United States District Court for the Southern District of Alabama. (Nos. 96-0176-
BH-M, 96-0246-BH-SL), W.b. Hand, Judge.
Before BIRCH, Circuit Judge, and HILL and KRAVITCH, Senior Circuit Judges.
HILL, Senior Circuit Judge:
The City of Mobile prohibits nude dancing in establishments licensed to sell liquor. Two
clubs brought suit seeking an injunction prohibiting the City from enforcing its ordinance. The clubs
claim the ordinance violates their rights under the First Amendment to the Constitution. The district
court granted summary judgment to the City. For the following reasons, we affirm.
I.
Ordinance 03-0031 of the City of Mobile, Alabama provides:
It shall be unlawful for any manager, officer, agent, servant, employee, or person in charge
of any establishment within the City of Mobile or the police jurisdiction thereof, licensed to
1
The ordinance was enacted on February 6, 1996.
sell spirituous or vinous liquors or malt or brewed beverages under the laws of the State of
Alabama, knowingly to exhibit, suffer, allow, permit, engage in, participate in, or be
connected with, any motion picture, show, performance, or other presentation upon the
licensed premises, which, in whole or in part, depicts nudity or sexual conducts or any
simulation thereof.
Any person, firm or corporation convicted for violating this ordinance shall be fined not
more than $500.00 and sentenced to imprisonment for a period not exceeding six months,
at the discretion of the court trying the case.2
The preamble to the ordinance provides:
WHEREAS, the City Council of the City of Mobile, Alabama, finds and declares that nudity
and sexual conduct and depiction thereof, coupled with alcohol in public places, encourages
undesirable behavior and is not in the interest of the public health, safety, and welfare.
WHEREAS, the Council has chosen to avoid the disturbances associated with mixing
alcohol and nude dancing by means of a reasonable restriction upon establishments which
sell spiritous or vinous liquors or malt or brewed beverages.
NOW, THEREFORE, the Council adopts this Ordinance pursuant to the powers under the
Twenty-first Amendment to the Constitution of the United States delegated to it by the State
of Alabama.
Id.
Prior to the enactment of the ordinance, Sammy's of Mobile, Ltd., (Sammy's), and The Candy
Store were licensed to sell alcoholic beverages for on-premises consumption and offered topless
female dancing. Sammy's surrendered its liquor license after the passage of the ordinance, and
continues to offer topless, as well as totally nude, dancing. The Candy Store has not surrendered
its license and continues to provide topless dancing. Although the City has not yet enforced the
ordinance against The Candy Store, the City has expressed an intent to do so.
2
The ordinance defines "nudity" as:
[T]he showing of the human male or female genitals, pubic area, or
buttocks with less than a fully opaque covering, or the showing of the female
breast with less than a fully opaque covering of any portion thereof below the top
of the darkened area surrounding the nipple, or the depiction of covered male
genitals in a discernibly turgid state.
Sammy's filed suit against the City in Alabama state court seeking declaratory and injunctive
relief, and the City removed the action to federal district court. The complaint alleges that the
ordinance is unenforceable under the doctrine of equitable estoppel and that it violates the free
speech clause of the First Amendment, the takings clause of the Fifth Amendment, the equal
protection clause, both the substantive and procedural guarantees of the due process clause of the
Fourteenth Amendment, and the ex post facto clause.
The Candy Store filed suit in federal district court seeking injunctive relief and damages,
alleging that the ordinance violates the First Amendment, the Fifth Amendment, and the equal
protection clause of the Fourteenth Amendment and that the ordinance is unenforceable under the
doctrine of res judicata.3
The two cases were consolidated and all parties moved for summary judgment. The district
court granted summary judgment to the City on all claims. The court concluded that the ordinance
does not offend the First Amendment under the four-part test of United States v. O'Brien, 391 U.S.
367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and that plaintiffs' remaining claims lack merit.
Sammy's and The Candy Store appeal, contending that the district court erred in holding that the
ordinance does not offend the First Amendment or the due process and equal protection clauses of
the fourteenth Amendment. We review the district court's grant of summary judgment de novo.
Gordan v. Cochran, 116 F.3d 1438, 1439 (11th Cir.1997).
II.
The Supreme Court has long upheld ordinances such as Mobile's. In California v. LaRue,
409 U.S. 109, 114, 93 S.Ct. 390, 395, 34 L.Ed.2d 342 (1972), the Court approved, as a valid exercise
of the general police power, an ordinance prohibiting nude dancing where liquor was sold. The
3
The district court denied both Sammy's and The Candy Store's motions for injunctive relief.
Court found the "conclusion, embodied in these regulations, that certain sexual performances and
the dispensing of liquor by the drink ought not to occur at premises that have licenses was not an
irrational one." Id. at 118, 93 S.Ct. at 397. Since then, many similar ordinances have been
approved, including several in this circuit. See New York State Liquor Authority v. Bellanca, 452
U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981); City of Newport v. Iacobucci, 479 U.S. 1047, 107
S.Ct. 913, 93 L.Ed.2d 862 (1987); Lanier v. City of Newton, 842 F.2d 253 (11th Cir.1988); Int'l
Eateries of America v. Broward County, 941 F.2d 1157, 1162 (11th Cir.1991); Grand Faloon
Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982); Cafe 207, Inc. v. St. Johns County, 856
F.Supp. 641, 645 (M.D.Fla.1994), aff'd per curiam, 66 F.3d 272 (11th Cir.1995).
Although such ordinances regulate expressive conduct,4 the Court has determined that they
are content-neutral and should be reviewed under the intermediate level of scrutiny articulated in
United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 570, 111 S.Ct. 2456, 2462-63, 115 L.Ed.2d 504 (1991). Under this test,
an ordinance is constitutional if: (1) the interest served is within the power of the government; (2)
the regulation furthers that interest; (3) the interest served is unrelated to free expression; and (4)
there is no less restrictive alternative. O'Brien at 377, 88 S.Ct. at 1679 (quoted in Barnes, 501 U.S.
at 567, 111 S.Ct. at 2461). In Barnes, the Court applied this test in upholding Indiana's prohibition
on public nudity as applied to nude dancing. 501 U.S. at 570, 111 S.Ct. at 2462-63.
Recently, the Supreme Court has reaffirmed the precedential value of LaRue and the Barnes-
O'Brien test. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711(1996). Although the Court disavowed the idea expressed in a long line of cases, including LaRue,
4
The Supreme Court has recognized that nude dancing may have some expressive content.
Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991).
that the Twenty-first Amendment lends an added presumption in favor of the validity of regulation
of otherwise protected speech when it is at the site of the sale of alcoholic beverages, the Court
observed that "[e]ntirely apart from the Twenty-first Amendment, the State has ample power to
prohibit the sale of alcoholic beverages in inappropriate locations." 517 U.S. at 515, 116 S.Ct. at
1514. This power is located in the inherent police power of every state to regulate to promote public
decency. Id.The Court also reaffirmed that the Barnes-O'Brien intermediate level of review applies to
such ordinances. Id. Under this test, the Court concluded, even after 44 Liquormart, LaRue, "would
come out the same way." Id. We are informed by this guidance and agree with the district court that
the Barnes-O'Brien test is applicable to the Mobile ordinance.5
The district court held that the Mobile ordinance passes all these tests for a constitutional
regulation of expressive conduct: the regulation of public health, safety, and morals is a valid and
substantial state interest; the Mobile ordinance's statement of purpose and findings as to the
problems created by the combination of alcohol and nude entertainment are sufficient to support the
requirement that the regulation further this interest; this interest is unrelated to the suppression of
free expression; and the ordinance is narrowly tailored to the perceived problem.
5
The dissent rejects the application of LaRue and Barnes to the Mobile ordinance because it
believes 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134 L.Ed.2d 711(1996), "eviscerated" the rationale of LaRue. This conclusion is reached despite the fact that the
Supreme Court in 44 Liquormart specifically cautions us against just such a view. By
expressing its opinion that LaRue would come out the same way, the Court may have hoped to
forestall the view that 44 Liquormart is the death knell for ordinances prohibiting nude
entertainment in bars. The Court characterized the Twenty-first Amendment analysis of LaRue
as merely a "buttress" to the conclusion that the First Amendment did not invalidate California's
prohibition of certain grossly sexual exhibitions in premises licensed to serve alcoholic
beverages. 517 U.S. at 514-16, 116 S.Ct. at 1514. Although no longer buttressed by the added
presumption of the Twenty-first Amendment, the Court was careful to remind us that such
ordinances remain protected by the continued vitality of a long line of approving cases, including
LaRue and Barnes.
We agree. The preamble to the ordinance finds that nudity and sexually explicit
entertainment coupled with alcohol in public places "encourages undesirable behavior and is not in
the interest of public health, safety, and welfare." Thus, the ordinance is aimed at the very type of
harm found to create a substantial government interest in LaRue, Barnes, International Eateries and
a host of other cases. Furthermore, Mobile has a "reasonable basis" for believing that its ordinance
will serve this substantial governmental interest. See Int'l Eateries, 941 F.2d at 1162. The district
court located this reasonable basis in the experience of other cities, studies done in other cities,
caselaw reciting findings on the issue, as well as their own wisdom and common sense. This is
sufficient.6 The Supreme Court has itself noted that "[c]ommon sense indicates that any form of
nudity coupled with alcohol in a public place begets undesirable behavior." Bellanca, 452 U.S. at
718, 101 S.Ct. at 2601. Finally, the requirement that the dancers partially cover their breasts or
cease to serve alcohol is certainly the least restriction possible which would still further the city's
interest in controlling the combustible mixture of alcohol and nudity.
The dissent believes that the ordinance does not meet the third requirement of this test, i.e.,
that the city's interest be unrelated to the suppression of the message of nude dancing. Indeed, the
dissent rejects the applicability of the Barnes-O'Brien test itself because it finds the Mobile
6
It is clear that under Barnes, there is no constitutional requirement that a city make
particularized findings regarding the adverse effects of the combination of alcohol and nude
entertainment. The Court noted that there were no findings nor any legislative history attached
to the Indiana statute, but found the "statute's purpose of protecting societal order and morality is
clear from its text and history." 501 U.S. at 568, 111 S.Ct. at 2461. See also Cafe 207, Inc. v. St.
Johns County, 856 F.Supp. 641, 645 (M.D.Fla.1994), aff'd per curiam, 66 F.3d 272 (11th
Cir.1995) ("It is now established as a matter of law by Supreme Court jurisprudence culminating
in [Barnes ] that secondary effects of proscribed conduct may be taken into consideration by a
court evaluating the governmental interests justifying impingement upon free speech rights even
when, as in Barnes, there is no legislative history demonstrating that the lawmakers actually
considered secondary effects or any other specific factor (such as protecting order and morality)
in enacting the challenged law.").
ordinance to be a "content-based" regulation, subject to a "searching" level of scrutiny.7
Characterizing Mobile's ordinance as content-based is a clear departure from prior cases
holding that such ordinances are not aimed at the erotic message of nude dancing. For example, in
Barnes, the Supreme Court held that Indiana's interest in prohibiting public nude dancing was
"unrelated to the suppression of free expression." 501 U.S. at 570, 111 S.Ct. at 2463. The Court
rejected the argument that merely because nude dancing may have some expressive content, an
ordinance prohibiting such dancing must be aimed at the suppression of that content. The purpose
of Indiana's statute was not to suppress the erotic message of nude dancing, but to address the evil
of public nudity. Id. The Court concluded, "[i]t was not the dancing that was prohibited, but simply
its being done in the nude." Id. See also Buzzetti v. New York City, No. 97-7585, --- F.3d ---- (2d
Cir. March 20, 1998) (ordinance barring adult businesses from residential zones and certain other
areas is a content-neutral and aimed at curbing negative effects of adult businesses on surrounding
areas rather than seeking to suppress free expression).
We too have rejected the idea that ordinances aimed at nude entertainment are necessarily
content-based. In holding such an ordinance to be a valid regulation of the time, place and manner
of expressive conduct, we wrote:
The only restriction imposed by the ... ordinance is in terms of the place where nude dancing
may be presented [i.e., only in places not serving alcohol]. This type of regulation has been
recognized as independent of expressive or communicative elements of conduct in other
contexts.
7
The dissent's argument that the Barnes-O'Brien test is inapposite because the Indiana statute
there was content-neutral, whereas Mobile's ordinance is content-based, ignores the claim in
Barnes. While Indiana's statute, on its face, prohibits public nudity rather than "expressive
conduct," the claim in Barnes was not that the statute was facially invalid, but that it was
unconstitutional as applied to nude dancing. There was no claim in Barnes that the statute was
unconstitutional because it prohibited nudity simpliciter. The claim was that the statute was
unconstitutional because it prohibited nude dancing. The same claim is made against the Mobile
ordinance.
Grand Faloon Tavern, 670 F.2d at 947(emphasis added).8
Similarly, the Mobile ordinance does not seek to ban whatever message is conveyed by nude
dancing. It does not even seek to ban nude dancing. In prohibiting nude dancing where liquor is
sold, the ordinance restricts only the place or manner of nude dancing without regulating any
particular message it might convey. No party disputes that the completely nude dancing which
Sammy's, having surrendered its liquor license, now presents is legal under the ordinance. Nude
dancing appears to be allowed everywhere in Mobile, except where alcohol is served. Mobile is
attempting only to regulate the sale of alcohol in inappropriate places and it has determined that it
is inappropriately sold in places where nude dancing is offered. Therefore, the ordinance is
constitutional under the Barnes-O'Brien test.
Furthermore, the Barnes-O'Brien test applies to this ordinance even if it is not strictly
content-neutral. It is true that not all dancing is prohibited in Mobile, only nude dancing where
liquor is served. To that extent, the ordinance refers to the "content" of the dancing. The dissent,
however, seems to equate this reference to content with content suppression. The dissent says, for
example, that the ordinance is an "outright ban targeted solely at conduct protected by the First
Amendment" and that, "on its face, it singles out nude entertainment and thus the erotic message
8
Although the dissent relies heavily on our subsequent opinions in Krueger v. City of
Pensacola, 759 F.2d 851 (11th Cir.1985) and Leverett v. City of Pinellas Park, 775 F.2d 1536(11th Cir.1985), neither undermines Grand Faloon's premise that Mobil's ordinance is
content-neutral. Both cases not only do not explicitly hold that regulations such as the one at bar
are content-regulatory but also do not apply the strict scrutiny appropriate for content
regulations. Instead, both Krueger and Leverett require only that cities demonstrate that
ordinances such as Mobile's advance "legitimate interests" and struck down nude dancing
ordinances because the records in those cases did not show that the ordinances furthered any
legitimate government interest unrelated to the suppression of free expression. See Krueger, 759
F.2d at 855-56; Leverett, 775 F.2d at 1540-41.
conveyed by that conduct."9
The Supreme Court, however, does not equate reference to content with suppression of
content. The Court applies the Barnes-O'Brien intermediate level of scrutiny to ordinances which
distinguish between nude and clothed entertainment, but which are aimed only at the secondary
effects of nude entertainment. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct.
925, 929, 89 L.Ed.2d 29 (1986) (ordinance "by its terms [was] designed to prevent crime, protect
city's retail trade, maintain property values, and generally protect and preserve the quality of the
city's neighborhoods, commercial districts, and the quality of urban life"); Young v. American Mini
Theatres, Inc., 427 U.S. 50, 71 n. 34, 96 S.Ct. 2440, 2453 n. 34, 49 L.Ed.2d 310 ("[i]t is [the]
secondary effect [of crime and urban deterioration] which these zoning ordinances attempt to avoid,
not the dissemination of "offensive speech' ").
In International Eateries, we too upheld a city ordinance regulating nude dancing aimed at
"protecting the quality of urban life from the secondary effects of adult businesses." 941 F.2d at
1162. Applying Barnes-O'Brien scrutiny, we concluded that the ordinance was valid because it
furthered a substantial governmental interest in regulating these secondary effects. Id. See also
Buzzetti,____ F.3d ____.
9
In fact, the dissent apparently rejects the idea that any such ordinance might ever be justified
as an attempt to address the undesirable secondary effects of the commingling of alcohol and
nudity because such ordinances are "content-based regulations of expressive behavior." For
example, the dissent states that the reason we upheld the City of Pinellas Park's ordinance
prohibiting nudity in the course of food and drink service in Leverett v. City of Pinellas Park,
775 F.2d 1536 (11th Cir.1985), was "because the ordinance did not apply to protected
expression, such as dancing." (emphasis added) To the dissent, any regulation of the place or
manner of nude dancing is also necessarily a regulation of the content of such expression. This
contention presupposes that all nude dancing conveys the same message, when, in fact,
controversy rages both in academia and society at large as to whether nude dancing, films, and
other such exhibitions express messages of liberation or submission. We cannot assume that any
regulation addressing nude dancing is a content regulation.
Mobile also defends its ordinance as an attempt to combat the secondary effects of nude
performance in a bar atmosphere. Just as the cities in Renton, Young, and International Eateries,
it seeks, geographically, to separate adult entertainment establishments from other commercial
establishments—in this case, bars—in order to minimize the secondary effects of that combination.
The dissent rejects this analogy. It believes these cases are inapposite because the zoning
regulations therein were "content-neutral," as opposed to the "content-based" Mobile ordinance.
The zoning ordinances in Renton, Young, and International Eateries, however, were not
content-neutral. They treated adult theaters differently from other theaters. They were
content-based to the same extent, and in exactly the same way, as the ordinance in Mobile which
treats nude dancing differently from clothed dancing.10
Mobile is attempting to regulate the secondary effects of the combination of alcohol and
nude dancing without prohibiting either. It does not seek to ban bars or nude dancing. Everyone
can still buy a drink and watch nude dancing in Mobile. They cannot, however, do both in the same
place. The dissent seems to believe this may violate the rights of the people of Mobile, but we are
unaware of any constitutional right to drink while watching nude dancing.11 Accordingly, the
10
In fact, the clothes required are few—a g-string and pasties will satisfy the statute.
11
The reference in 44 Liquormart to the proposition that government may not deny a benefit
to a person on a basis that infringes his constitutionally protected interests—especially his
interest in freedom of speech—does not apply to this case. In 44 Liquormart, the Rhode Island
ordinance banned liquor price advertising. The ordinance, therefore, did not regulate the time,
place, or manner, but rather totally suppressed the commercial speech involved. The Court
merely reaffirmed that a state may not ban truthful, nonmisleading commercial speech, the
Twenty-first Amendment notwithstanding.
Mobile has not banned nude dancing. In LaRue, the Court noted that "... the
critical fact is that California has not forbidden these performances across the board. It
has merely proscribed such performances in establishments that it licenses to sell liquor
by the drink." 409 U.S. at 118, 93 S.Ct. at 397.
judgment of the district court is AFFIRMED.
KRAVITCH, Senior Circuit Judge, dissenting:
Instead of a generally applicable proscription on public nudity or a general prohibition on
nudity in establishments licensed to serve alcohol, the City of Mobile chose to address "the
combustible mixture of alcohol and nudity" by singling out traditionally protected forms of
expression for criminal sanction. Although I agree with the majority that there is no "constitutional
right to drink while watching nude dancing," the Constitution does confer a right to be free from
government regulation that prohibits expressive conduct on the basis of content. Because I believe
that the majority fundamentally misapprehends the restrictions that the First Amendment imposes
upon governmental power to regulate expression, I respectfully dissent.
I.
A.
Preliminarily, I take issue with the majority's apparent assumption that because Ordinance
03-003 does not ban nude dancing outright, but rather merely conditions the right to present
entertainment involving nudity on the surrender of a liquor license, the Ordinance does not
significantly burden the exercise of First Amendment rights. The majority's reasoning ignores the
well-established proposition that
[e]ven though government is under no obligation to provide a person, or the public, a
particular benefit, it does not follow that conferral of the benefit may be conditioned on the
surrender of a constitutional right. In Perry v. Sindermann, 408 U.S. 593[, 597], 92 S.Ct.
2694[, 2697], 33 L.Ed.2d 570 (1972), relying on a host of cases applying that principle
during the preceding quarter-century, the Court explained that government "may not deny
a benefit to a person on a basis that infringes his constitutionally protected
interests—especially his interest in freedom of speech."
44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 513, 116 S.Ct. 1495, 1513, 134 L.Ed.2d 711(1996) (internal citation omitted). Although the City may regulate the sale or service of alcohol, it
may not condition the conferral of a liquor license—to which appellants concede they are not
constitutionally entitled—on the forfeiture of the right to engage in expressive behavior.1 Because
the City authorizes the punishment, by fine or imprisonment, of licensees who "exhibit, suffer,
allow, permit, engage in, participate in, or [are] connected with" one form of expressive behavior,
the challenged ordinance imposes a significant burden upon First Amendment freedoms.2
B.
In denying appellants' respective motions for preliminary injunctive relief, the district court
relied upon "a long line of [Twenty- first Amendment] cases upholding the states' authority to
prohibit nude dancing in clubs licensed to sell alcohol."3 After the district court entered the
preliminary orders, but before the court ruled on the parties' motions for summary judgment, the
Supreme Court decided 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 134
L.Ed.2d 711 (1996), which dispelled definitively the notion that the Twenty-first Amendment
"qualif[ies] the constitutional prohibition against laws abridging the freedom of speech embodied
1
The majority concedes that it is well-established that "nude dancing ... is expressive conduct
within the outer perimeters of the First Amendment...." Barnes v. Glen Theatre, Inc., 501 U.S.
560, 566, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991).
2
I disagree with the majority's conclusion that the "reference in 44 Liquormart to the
proposition that government may not deny a benefit to a person on a basis that infringes his
constitutionally protected interests ... does not apply to this case." The applicability of the
unconstitutional conditions doctrine does not turn on whether conferral of the discretionary
benefit is conditioned upon completely foregoing the right to engage in expression or instead
upon foregoing the right to engage in that expression in certain places or manners or at certain
times. Rather, the doctrine applies as long as the governmental actor demands some sacrifice of
a constitutional right in exchange for an otherwise discretionary benefit. See FCC v. League of
Women Voters, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984) (invalidating provision of
Public Broadcasting Act that prohibited noncommercial educational television stations that
received public funds from endorsing candidates or editorializing); Pickering v. Bd. Of Educ.,
391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (holding that constitutionally protected
speech is impermissible ground for discharge from public employment).
3
Summary Judgment Order ("Order") at 6.
in the First Amendment." Id. at 516, 116 S.Ct. at 1515. The district court recognized that 44
Liquormart foreclosed the argument that the Twenty-first Amendment "provides an added
presumption in favor of validity of state regulation in the area of topless dancing,"4 but nevertheless
concluded that the case "provided us with the roadmap for upholding" such state regulation.5 In 44
Liquormart, the Court cited Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d
504 (1991), for the proposition that states enjoy the power "to restrict ... "bacchanalian revelries' ...
regardless of whether alcoholic beverages are involved." 44 Liquormart, at 515, 116 S.Ct. at 1514
(citing Barnes and quoting California v. LaRue, 409 U.S. 109, 118, 93 S.Ct. 390, 397, 34 L.Ed.2d
342 (1972)). The district court interpreted this reference in 44 Liquormart to mean that Barnes
controls all First Amendment challenges to ordinances regulating nudity.
Following the district court's lead, the majority, although conceding that 44 Liquormart
requires application of First Amendment scrutiny to the ordinance in question, suggests that 44
Liquormart confirms the City's power to regulate nude dancing in establishments licensed to sell
alcohol. The majority concludes that the Court's treatment in 44 Liquormart of earlier First
Amendment cases involving state regulation of alcohol and nude dancing provides support for the
conclusion that Ordinance 03-003 does not offend the First Amendment. In California v. LaRue,
409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972), one of those earlier cases, the Court upheld a
regulation of nude dancing in establishments serving alcohol on the basis of the authority conferred
upon states by the Twenty-first Amendment. In 44 Liquormart, the Court, "[w]ithout questioning
the holding in LaRue, ... disavow[ed] its reasoning insofar as it relied on the Twenty-first
Amendment." 517 U.S. at 516, 116 S.Ct. at 1514. Because the Court in 44 Liquormart stated in
4
Order at 8 (internal quotations omitted).
5
Id.dicta that LaRue would have been resolved the same way had the Court not relied erroneously upon
the Twenty-first Amendment, see 44 Liquormart, at 515, 116 S.Ct. at 1514 ("We are now persuaded
that the Court's analysis in LaRue would have led to precisely the same result if it had placed no
reliance on the Twenty-first Amendment."), the majority concludes that Ordinance 03-003 likewise
should survive First Amendment scrutiny.
This case presents this circuit's first occasion to address the impact of 44 Liquormart on state
power to regulate nude dancing and the continued vitality of LaRue. In LaRue, the Court addressed
the constitutionality of California Department of Alcoholic Beverage Control regulations that
prohibited various forms of sexual conduct in licensed establishments. The Court, noting that "[t]he
state regulations here challenged come to us, not in the context of censoring a dramatic performance
in a theater, but rather in a context of licensing bars and nightclubs to sell liquor by the drink,"
LaRue, 409 U.S. at 114, 93 S.Ct. at 395, reviewed the regulations under a standard considerably
more deferential than it ordinarily reviews prohibitions targeted at protected expressive behavior.
In light of what the Court believed to be "the added presumption in favor of the validity of the state
regulation in this area that the Twenty-first Amendment requires," id. at 118-19, 93 S.Ct. at 397, the
Court decided that the Department's regulations were not "irrational" or "unreasonable," id. at 116,
93 S.Ct. at 396. The Court's discussion of the state's authority to regulate conduct with a
communicative element, however, is hard to square with later decisions. The Court in LaRue stated:
While we agree that at least some of the performances to which these regulations address
themselves are within the limits of the constitutional protection of freedom of expression,
the critical fact is that California has not forbidden these performances across the board. It
has merely proscribed such performances in establishments that it licenses to sell liquor by
the drink.
Id. at 118, 93 S.Ct. at 397. Precedent now makes clear that a state cannot condition a benefit on a
forfeiture of First Amendment rights, see 44 Liquormart, at 512-14, 116 S.Ct. at 1513, or regulate
the time, place, or manner of protected expression with content-based prohibitions, see Ward v. Rock
Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989) ("[T]he
government may impose reasonable restrictions on the time, place, or manner of protected speech,
provided the restrictions "are justified without reference to the content of the regulated speech ....'
" (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069,
82 L.Ed.2d 221 (1984))). Although the 44 Liquormart Court, in dicta, did not disturb the holding
of LaRue, the Court eviscerated the basis for that decision. The 44 Liquormart Court squarely
addressed whether the Twenty-first Amendment "qualif[ies] the constitutional prohibition against
laws abridging the freedom of speech embodied in the First Amendment," 517 U.S. at 516, 116 S.Ct.
at 1515, but it did not have before it, as did the Court in LaRue and as does our court now, a
regulation prohibiting nude dancing in establishments with liquor licenses. The Court therefore had
no occasion to evaluate closely the constitutionality of such an ordinance.6 Unlike the majority, I
6
N.Y. State Liquor Auth. v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, 69 L.Ed.2d 357 (1981),
and Newport v. Iacobucci, 479 U.S. 92, 107 S.Ct. 383, 93 L.Ed.2d 334 (1986), cited by the
majority, likewise cannot provide support for the regulatory authority the City seeks to exercise.
In Bellanca, the Court upheld a statute prohibiting nude dancing in establishments licensed to
sell liquor. The sole basis of the Court's holding, however, was the power that it believed the
Twenty-first Amendment conferred upon states to regulate alcohol. The Court concluded that
"[j]udged by the standards announced in LaRue and Doran [v. Salem Inn, Inc., 422 U.S. 922, 95
S.Ct. 2561, 45 L.Ed.2d 648 (1975), which followed LaRue ], the statute at issue here is not
unconstitutional." 452 U.S. at 717, 101 S.Ct. at 2601. Relying upon a
greater-includes-the-lesser rationale that has since been discredited, see 44 Liquormart, at 510-
12, 116 S.Ct. at 1512; infra Section I.C, at note 7, the Court reasoned that the "State's power to
ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on
premises where topless dancing occurs," Bellanca, 452 U.S. at 717, 101 S.Ct. at 2601, and that
"[w]hatever artistic or communicative value may attach to topless dancing is overcome by the
State's exercise of its broad powers arising under the Twenty-first Amendment," id. at 718, 101
S.Ct. at 2602. Bellanca thus rests upon a jurisprudential underpinning no longer followed by the
Court.
Likewise, the Court in Iacobucci, following LaRue and Bellanca, upheld an
ordinance prohibiting "performing nude or nearly nude" in establishments licensed to sell
liquor. 479 U.S. at 93 n. 1, 107 S.Ct. at 384 n. 1. The sole rationale advanced by the
do not believe that the dicta in 44 Liquormart compels us to uphold the ordinance challenged here.
C.
The majority reads 44 Liquormart to require this court to review the challenged ordinance
under the intermediate scrutiny applied in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20
L.Ed.2d 672 (1968). O'Brien scrutiny is appropriate when a generally applicable regulation not
directed at the communicative elements of conduct nevertheless infringes rights of free expression.
See O'Brien, 391 U.S. at 376-77, 88 S.Ct. at 1678-79. O'Brien scrutiny involves the application of
a four-part test:
[A] government regulation is sufficiently justified if it is within the constitutional power of
the Government; if it furthers an important or substantial government interest; if the
governmental interest is unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedoms is no greater than is essential to the
furtherance of that interest.
Id. at 377, 88 S.Ct. at 1679. The majority concludes that the Supreme Court's decision in Barnes
v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), which reviewed under
O'Brien scrutiny a challenge to Indiana's prohibition on public nudity as applied to nude dancing,
controls the case sub judice and accordingly that this court should apply the O'Brien four-part test.
In Barnes, the Court addressed the constitutionality of Indiana's "prohibition against
complete nudity in public places," 501 U.S. at 564, 111 S.Ct. at 2459, as applied to establishments
that provide totally nude dancing as entertainment. The Court, although recognizing that nude
dancing "is expressive conduct within the outer perimeters of the First Amendment, though ... only
Court in upholding the regulation was the power that the Court believed the Twenty-first
Amendment conferred upon states to regulate alcohol. See id. at 97, 107 S.Ct. at 386 ("
"Given the added presumption in favor of the validity of the ... regulation in this area that
the Twenty-first Amendment requires,' it is plain that, as in Bellanca, the interest in
maintaining order outweighs the interest in free expression by dancing nude.") (quoting
LaRue, 409 U.S. at 118-19, 93 S.Ct. at 397). After 44 Liquormart, Bellanca and
Iacobucci appear to lack precedential value.
marginally so," id. at 566, 111 S.Ct. at 2460, concluded that the law was valid because it was
supported by a state interest in protecting order and morality, was not targeted at "the erotic message
conveyed by the dancers," and imposed requirements no greater than those necessary to serve the
state interest, id. at 567-572, 111 S.Ct. at 2461-63.
Barnes, however, does not control the case sub judice. The statute challenged in Barnes,
although using the identical definition of "nudity" as the ordinance challenged here, did not single
out one form of expression for disfavored treatment. The Indiana statute provided:
A person who knowingly or intentionally, in a public place: (1) engages in sexual
intercourse; (2) engages in deviate sexual conduct; (3) appears in a state of nudity; or (4)
fondles the genitals of himself or another person; commits public indecency, a Class A
misdemeanor.
Ind.Code § 35-45-4-1 (1988), quoted in Barnes, 501 U.S. at 569 n. 2, 111 S.Ct. at 2462 n. 2. In
contrast, the ordinance challenged here makes it unlawful "knowingly to exhibit, suffer, allow,
permit, engage in, participate in, or be connected with, any motion picture, show, performance, or
other presentation upon the licensed premises, which, in whole or in part, depicts nudity or sexual
conduct or any simulation thereof." City of Mobile Ord. 03-003 (emphasis added). Unlike the
statute upheld in Barnes, which focused on nudity simpliciter and not on forms of expressive
conduct or the messages they convey, the City of Mobile ordinance applies only to forms of conduct
that are inherently—and traditionally—communicative: motion pictures, shows, performances, and
"other presentation[s]." Cf. Int'l Eateries of Am. v. Broward County, 941 F.2d 1157, 1161 (11th
Cir.1991) (noting distinction between generally applicable, content-neutral regulations and those
prohibiting conduct "precisely because of its communicative attributes")(quoting Barnes, 501 U.S.
at 577, 111 S.Ct. at 2466 (Scalia, J., concurring in the judgment) (emphasis omitted)), cert. denied,
503 U.S. 920, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). A regulation that by its terms prohibits only
traditional forms of expression cannot be said to be unrelated "to the suppression of free expression
within the meaning of O'Brien ... [and thus is] outside of O'Brien 's test altogether." Texas v.
Johnson, 491 U.S. 397, 410, 109 S.Ct. 2533, 2543, 105 L.Ed.2d 342 (1989).7
This court often has distinguished regulations proscribing nudity per se, including general
proscriptions on nudity in particular fora, from regulations targeted at expressive conduct. In Grand
Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (11th Cir.1982), we upheld a city ordinance banning
nudity on premises where alcohol was served. The ordinance, unlike the one before us now, did not
7
En route to concluding that O'Brien intermediate scrutiny controls the case before us, the
majority argues that the as-applied challenge in Barnes was simply a claim that the Indiana
statute "was unconstitutional because it prohibited nude dancing" and thus that the claim in
Barnes was the "same claim [that] is made against the Mobile ordinance." With all due respect, I
believe that the majority misapprehends the difference between an as-applied challenge to a
content-neutral regulation and a facial challenge to a content-based regulation.
The statute challenged in Barnes did not by its terms specifically proscribe nude
dancing, but rather prohibited all public nudity—and thereby incidentally prohibited
some otherwise lawful expression. That the claim raised by the respondents in that case
sounded in the First Amendment does not mean that their claim was identical to the one
made by appellants in the case before us. Courts long have distinguished between
content-based regulations targeted at expression, on the one hand, and generally
applicable, content-neutral regulations that incidentally burden expressive freedoms, on
the other. See generally L. Tribe, American Constitutional Law §§ 12-2, 12-3 (1988).
Simply because it is within governmental power to accomplish a particular end, such as a
categorical ban on nudity that a fortiori includes a more specific ban on nude dancing,
does not mean that any means chosen will satisfy the requirements of the First
Amendment. Rather, the First Amendment often requires courts to invalidate regulations
that accomplish ends that lawfully could be achieved by different means. Compare
Texas v. Johnson, 491 U.S. 397, 406-410, 109 S.Ct. 2533, 2540-2543, 105 L.Ed.2d 342(1989) (invalidating state law that prohibited "desecration of venerated object[s],"
because by singling out symbolic objects for protection, the state's asserted interest was
implicated only when "a person's treatment of the flag communicates some message"),
with O'Brien, 391 U.S. at 370, 88 S.Ct. at 1675 (upholding conviction for burning draft
card under statute that proscribed "knowingly destroy[ing]" or "knowingly mutilat[ing]"
a Selective Service Registration certificate). Indeed, the First Amendment stands in part
for the proposition that the greater power—in this case, the authority to regulate
nudity—does not always include the lesser power—in this case, the authority to ban
solely expressive conduct involving nudity. See 44 Liquormart, at 512, 116 S.Ct. at 1512(rejecting greater-includes-the-lesser reading of the First Amendment and stating that
"[t]he text of the First Amendment makes clear that the Constitution presumes that
attempts to regulate speech are more dangerous than attempts to regulate conduct").
single out nudity in "any motion picture, show, performance, or other presentation," but rather
simply banned all nudity in establishments offering alcohol for sale. Id. at 944 n. 2. Because the
regulation thus was not targeted at traditionally expressive behavior, we applied O'Brien scrutiny
and upheld the ban. In Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir.1985), however, we
invalidated a ban almost identical to that in Grand Faloon because, unlike the ban in Grand Faloon,
which was supported by a legitimate and substantial government interest in regulating activities
likely to lead to breaches of the peace, the record demonstrated that the city's motive was to restrict
expression. 759 F.2d at 855-56. Both cases addressed regulations that facially banned all nudity
in establishments licensed to serve alcohol, rather than solely nudity in the course of traditionally
expressive forms of conduct. See Krueger, 759 F.2d at 853-54 n. 3; Grand Faloon, 670 F.2d at 944
n. 2.
Ordinance 03-003 on its face singles out nude entertainment and thus the "erotic message
conveyed" by that conduct. Barnes, 501 U.S. at 570, 111 S.Ct. at 2463. Ordinance 03-003 would
not by its terms apply, for example, to a nude waitress serving drinks at a licensed establishment or
to a patron entering such a club nude, whereas it would apply to a production of "Hair" or
"Equus"—or any other artistic production that includes nudity, however minor or incidental—at a
club licensed to sell alcohol. Cf. Barnes, 501 U.S. at 585 n. 2, 111 S.Ct. at 2470 n. 2 (Souter, J.,
concurring in the judgment) ("It is difficult to see ... how the enforcement of Indiana's statute against
nudity in a production of "Hair' or "Equus' somewhere other than an "adult' theater would further
the State's interest in avoiding harmful secondary effects...."). Instead of targeting nudity per se,
which clearly is a permissible exercise of municipal or state authority, see Barnes, supra, the Mobile
ordinance targets only conduct with communicative elements.8 Because courts consistently have
reviewed such contentbased restrictions with a level of scrutiny more searching than O'Brien
scrutiny, which we have applied to generally applicable, content-neutral regulations, the majority
is incorrect to conclude, simply because the claim before the court is a challenge to a nudity
ordinance, that Barnes 's O'Brien scrutiny is appropriate in this case.9
D.
Because I believe that the majority applies the wrong level of scrutiny, I address the City's
argument that time, place, and manner scrutiny—another form of intermediate scrutiny—is
applicable in this case. In my view, in determining the appropriate level of scrutiny, this court
should look to the character of the regulation. If the regulation is content-based—because it singles
out one form of expression for disfavored treatment—then searching scrutiny is appropriate. See
Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1164, 99 L.Ed.2d 333 (1988). If, on the other
8
The majority suggests that "[w]e cannot assume that any regulation addressing nude dancing
is a content regulation," because "controversy rages both in academia and society at large" over
what precise message nude dancing conveys. I would have thought, however, that an ordinance
targeted at communicative activities that express multiple messages is as invidious as, if not
more so than, an ordinance that targets merely one message. One need only consider a simple
example to see how subversive of basic First Amendment values the majority's reasoning is: an
ordinance banning all dancing would suppress a wide array of messages that could be conveyed
by dancing, yet, according to the majority, that regulation would be permissible because "we
cannot assume" that it targets any one particular message.
9
Moreover, contrary to the majority's unsupported assertion, the Court in 44 Liquormart did
not suggest that Barnes 's O'Brien scrutiny should apply in all cases involving ordinances
regulating nudity. Instead, the Court merely cited Barnes to support the statement that "the
Court has recognized that the States' inherent police powers provide ample authority to restrict
the kind of "bacchanalian revelries' described in the LaRue opinion regardless of whether
alcoholic beverages are involved." 44 Liquormart, at 515, 116 S.Ct. at 1514. I doubt that the
Court, in announcing a decision that restricted governmental power to regulate speech, meant to
suggest that courts now should evaluate content-based regulations under the more-deferential
O'Brien standard of review. Instead, the Court's citation to Barnes merely confirms that states
and municipalities presumptively may regulate nudity with generally applicable, content-neutral
ordinances—ordinances wholly unlike that passed by the City in this case.
hand, the regulation is content-neutral—because it is justified not by "reference to the content of the
regulated speech," Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748,
771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976), but rather to the "secondary effects" of that
speech, see Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47, 106 S.Ct. 925, 929, 89 L.Ed.2d 29(1986)—then less searching time, place, and manner scrutiny may be appropriate, see id. at 46, 106
S.Ct. at 928.
The City contends, and the majority agrees, that the Ordinance was not promulgated because
of a disagreement with the message conveyed by nude dancing, but rather was an attempt to regulate
the secondary effects of nude dancing. The City and the majority rely upon Renton, supra, Young
v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), and Int'l
Eateries of Am. v. Broward County, 941 F.2d 1157, 1161 (11th Cir.1991), cert. denied, 503 U.S.
920, 112 S.Ct. 1294, 117 L.Ed.2d 517 (1992). In Renton and Young, the Court upheld zoning
ordinances restricting the permissible locations for adult theaters that presented nude dancing.
Although the regulations challenged in those cases "treat[ed] theaters that specialize in adult films
differently from other kinds of theaters," Renton, 475 U.S. at 47, 106 S.Ct. at 929, and thus at first
blush seemed to be content-based, the Court in each case concluded that the regulations were
justified without reference to the content of the regulated speech because they were "aimed not at
the content of the films ..., but rather at the secondary effects of such theaters on the surrounding
community," id. (emphasis in original); accord Young, 427 U.S. at 71 n. 34, 96 S.Ct. at 2453 n. 34.
In Renton, for example, the Court upheld the district court's conclusion that the "city's pursuit of its
zoning interests here was unrelated to the suppression of free expression" because the Court believed
that the ordinance "by its terms [was] designed to prevent crime, protect the city's retail trade,
maintain property values, and generally protect and preserve the quality of the city's neighborhoods,
commercial districts, and the quality of urban life." Id. at 48, 106 S.Ct. at 929; accord Young, 427
U.S. at 71 n. 34, 96 S.Ct. at 2453 n. 34 (noting that "[i]t is [the] secondary effect [of crime and urban
deterioration] which these zoning ordinances attempt to avoid, not the dissemination of "offensive'
speech").
In International Eateries, this court applied Renton to uphold a local zoning ordinance
restricting the permissible locations for clubs presenting non-obscene nude dancing. Applying time,
place, and manner scrutiny, this concluded that the challenged ordinance: (1) furthered a substantial
governmental interest in "protecting the quality of urban life from the secondary effects of adult
businesses," 941 F.2d at 1162; (2) was narrowly tailored to further that interest because it focused
only on those businesses likely to cause secondary effects, id. at 1163; and (3) allowed reasonable
alternative avenues of communication because there were "sufficient alternative locations" where
the theaters could lawfully operate, id. at 1165.10
The significant difference between the ordinance challenged in International Eateries and
the one challenged here, however, is that the former was a zoning ordinance, whereas the one in the
case before us is a direct regulation of expressive conduct.11 Closely read, Renton, Young, and
International Eateries apply only to zoning ordinances. See Renton, 475 U.S. at 49, 106 S.Ct. at
929-30 ("[Z]oning ordinances designed to combat the undesirable secondary effects of such
10
We applied the Renton secondary-effects analysis in International Eateries because at issue
was the validity of a zoning ordinance similar to that considered in Renton and Young. See 941
F.2d at 1161. Distinguishing Barnes, we concluded that O'Brien scrutiny was inappropriate
because the regulation "single[d] out nude dancing rather than broadly prohibiting all public
nudity." Id.
11
Contrary to the majority's suggestion, Ordinance 03-003 does not seek "geographically [ ] to
separate adult entertainment establishments from other commercial establishments." (Emphasis
added). Instead, the Ordinance seeks categorically to ban nude dancing in
establishments—wherever they may be located—that serve alcohol.
businesses are to be reviewed under the standards applicable to "content-neutral' time, place, and
manner regulations.") (emphasis added); Young, 427 U.S. at 71, 96 S.Ct. at 2453 ("[W]hat is
ultimately at stake is nothing more than a limitation on the place where adult films may be
exhibited...."); Int'l Eateries, 941 F.2d at 1159 ("[T]he Supreme Court has held that under some
circumstances cities may enact zoning ordinances that require adult movie theatres to locate only
in certain areas, provided that the purpose of the regulation is to control the secondary effects of
these businesses.") (emphasis added) (internal quotation omitted); see also Buzzetti v. City of New
York, --- F.3d ----, No. 97-7585 (2d Cir. March 20, 1998) (upholding city's "Zoning Amendment,"
which "does not forbid the operation of any category of business [but i]nstead ... restricts the areas
in which certain sexually-oriented businesses may operate"). Indeed, zoning regulations are
amenable to time, place, and manner scrutiny at least in part because, although they restrict the
locations available for a given use, they generally leave some areas open for the disfavored use. See
Renton, 475 U.S. at 54, 106 S.Ct. at 932 ("[The City has] sought to make some areas available for
adult theaters and their patrons, while at the same time preserving the quality of life in the
community at large by preventing those theaters from locating in other areas. This, after all, is the
essence of zoning."); Young, 427 U.S. at 71 n. 35, 96 S.Ct. at 2453 n. 35.
Unlike the zoning ordinances upheld in Young, Renton, and International Eateries, which
preserved for adult entertainment "ample, accessible real estate," Renton, 475 U.S. at 53, 106 S.Ct.
at 932, the City of Mobile's regulation prohibits establishments that wish to serve alcohol and
present nude dancing from operating anywhere. Of course, as the City and the majority point out,
appellants are free to provide nude dancing at their current locations as long as they are willing to
forego the privilege of serving alcohol. As already stated, however, see supra Section I.A, this
argument ignores the well-established proposition that government may not condition the "conferral
of [a] benefit ... on the surrender of a constitutional right." 44 Liquormart, at 513, 116 S.Ct. at 1513.
Although the Supreme Court and this circuit have upheld zoning regulations that, as measures of
social policy, have dissipated or segregated the effects of adult theaters, neither has, without relying
on a now-discredited view of the Twenty-first Amendment, upheld an outright ban targeted solely
at conduct protected by the First Amendment.12 Because I conclude that the secondary-effects
exception is inapplicable in this case, I believe that this court should analyze Ordinance 03-003 as
a content-based restriction.
E.
My conclusion that Ordinance 03-003 is a content-based restriction on protected expression
that must be evaluated under searching judicial scrutiny finds strong support in case law. This court
has distinguished between regulations of nudity that permissibly (and incidentally) burden protected
expression and regulations that impermissibly target protected expression for sanction. In Leverett
v. City of Pinellas Park, 775 F.2d 1536 (11th Cir.1985), this court upheld against a First Amendment
challenge an ordinance prohibiting nudity in the course of food and drink service because the
12
In Barnes, Justice Souter argued in his concurrence that Indiana could justify application of
a generally applicable proscription of public nudity to nude dancing because the state has a
legitimate and substantial government interest in combatting the secondary effects of adult
entertainment. His concurrence, however, simply sought to justify the burden on First
Amendment freedoms imposed by application of a content-neutral statute to expressive
behavior—a result contemplated by O'Brien—and did not suggest that a prohibition, other than a
zoning regulation, targeted at expressive behavior could be justified by reference to the
secondary effects of the targeted behavior.
Likewise, in Cafe 207, Inc. v. St. Johns County, 66 F.3d 272 (11th Cir.1995), aff'g
856 F.Supp. 641 (M.D.Fla.1994), this court affirmed the district court's conclusion that
the governmental-interest prong of the O'Brien test was satisfied because, inter alia, the
regulation combatted the secondary effects of nudity in adult entertainment. 856 F.Supp.
at 644. Like the statute in Barnes, the ordinance challenged in Cafe 207 was a generally
applicable, and not a content-based, prohibition on public nudity. The majority's reliance
on Cafe 207 thus is misplaced.
ordinance did not apply to protected expression, such as dancing. See id. at 1540. The court struck
down a companion ordinance that prohibited "nude or semi-nude entertainment in any commercial
establishment," id. at 1537 (emphasis added), however, because, as a direct regulation of conduct
protected by the First Amendment, the court subjected it to "the stricter standard typically used to
review an infringement on a protected liberty interest justified solely under the government's police
power," id. at 1540 (citing Krueger v. City of Pensacola, 759 F.2d 851 (11th Cir.1985)). The court
noted that in order to justify a content-based regulation of protected expression, the city had an
obligation to "come forth with more than simply an articulation of some legitimate interest that the
city could have had to justify its prohibition." Leverett, 775 F.2d at 1540 (internal quotations
omitted).13 Although the conclusory language contained in the ordinances that "competitive
commercial exploitation of nudity is adverse to the public health, peace, morals and good order, and
[that] it is in the best interest of the public health, safety and convenience to restrict such nudity ...,"
id. at 1539, was sufficient to justify the ordinance generally proscribing nudity in the course of food
service because that ordinance did not "on its face govern activity protected by the First
Amendment," id. at 1540, the language could not save the ordinance prohibiting nude entertainment.
The ordinance invalidated in Leverett, which was targeted solely at expressive conduct, is
indistinguishable from the one challenged here. See also BSA, Inc. v. King County, 804 F.2d 1104,
1107-08 (9th Cir.1986) (enjoining operation of statute explicitly banning "common barroom type
topless dancing" because the "[p]rohibition of a category of protected expression, including that
which is sexually explicit, can be upheld only where it furthers a substantial governmental interest
13
See Leverett, 775 F.2d at 1540 ("When a fundamental interest such as freedom of expression
is regulated, the City must also show that the legitimate concern it articulates has "more than
merely speculative factual grounds, and that it was actually a motivating factor in the passage of
the legislation.' ") (quoting Krueger v. City of Pensacola, 759 F.2d 851, 855 (11th Cir.1985)).
unrelated to suppression of free expression ... and where the governmental interest could not be
served by a means less intrusive on First Amendment activity"). I am convinced that this court
should review Ordinance 03-003, as well, under "the stricter standard typically used to review an
infringement on a protected liberty interest justified solely under the government's police power."
Leverett, 775 F.2d at 1540.
F.
In my view, the City has not satisfied this stricter standard. To survive First Amendment
scrutiny, the City must, at a minimum, demonstrate that its interest in regulating the conduct at issue
in this case "is based on something other than a desire to censor the communication because of the
community's dislike of its content." Krueger, 759 F.2d at 854. The City argues that it acted to
address the adverse secondary effects of nude dancing combined with alcohol consumption and that
the preamble to Ordinance 03-003 makes clear that the City was not targeting the message of the
expressive conduct, but rather was combatting the secondary effects of that behavior.14 The interests
stated in the Ordinance's preamble—discouraging "undesirable behavior" and avoiding
"disturbances"—are, of course, legitimate governmental interests. As in Leverett, however, "the
City has made no showing as to the factual basis for its articulated concerns and the motivation for
passage of [the ordinance] beyond the conclusions stated in the ordinance itself," 775 F.2d at 1540,
a showing that is insufficient to "justify its infringement on protected expression," id. The majority
concludes that the City permissibly relied upon other cities' findings that the commingling of alcohol
and nudity produces undesirable effects. Although the majority is correct that "[t]he First
14
Indeed, an argument by the City that it was worried about the effects of adult entertainment
alone, as was the city in Renton, 475 U.S. at 50, 106 S.Ct. at 930, rather than the effects of the
entertainment combined with alcohol consumption, would be unconvincing because the City still
permits nude dancing; Sammy's has been presenting nude dancing (without alcohol) since this
litigation began, yet has not violated Ordinance 03-003.
Amendment does not require a city, before enacting [a zoning ] ordinance, to conduct new studies
or produce evidence independent of that already generated by other cities, so long as whatever
evidence the city relies upon is reasonably believed to be relevant to the problem that the city
addresses," Renton, 475 U.S. at 51, 106 S.Ct. at 931 (emphasis added),15 this court consistently has
required a significantly stronger showing to justify content-based regulations of expressive behavior
outside of the zoning context, see, e.g., Leverett, 775 F.2d at 1540. The mere assertion, unsupported
by any legislative findings, that a city seeks to address the undesirable secondary effects of a
disfavored activity is insufficient to justify a regulation that by its terms prohibits only conduct that
is protected by the First Amendment.
Even if the City had made findings, moreover, I have serious doubts that the City's interest
in discouraging undesirable behavior and avoiding disturbances would be sufficient to justify
Ordinance 03-003's content-based restriction. Furthermore, given the availability of alternative
regulatory means that could accomplish the City's avowed goals without singling out protected
expression for sanction, see infra Section II, in my view Ordinance 03-003 could not satisfy the
15
Accord Int'l Eateries, 941 F.2d at 1162 (holding that a city "need not conduct its own
studies" in order to "have a reasonable basis for its belief that the harm to be protected against
[by the zoning ordinance] in fact exists"). Likewise, the proof requirements for regulations that
are not targeted at expression may be relaxed. See Barnes, 501 U.S. at 584-85, 111 S.Ct. at 2470(Souter, J., concurring in the judgment) ("[L]egislation seeking to combat the secondary effects
of adult entertainment need not await localized proof of those effects.... I do not believe that a
State is required affirmatively to undertake to litigate this issue repeatedly in every case."). But
cf. Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135-36 (6th Cir.1994) (holding that
"because the City has failed to demonstrate a link between nudity in non-adult entertainment and
secondary effects, we do agree with the district court that the Akron ordinance must be struck
down as facially unconstitutional under the First Amendment overbreadth doctrine"; stating that
"[t]he ordinance makes no attempt to regulate only those expressive activities associated with
harmful secondary effects and includes no limiting provisions"). Contrary to the majority's
suggestion however, this court never has allowed a state or municipality to enact a content-based
restriction on expression based upon a mere showing that other localities have identified an evil
to be addressed.
means scrutiny that the First Amendment requires. I therefore would hold that the district court
erred in granting summary judgment in favor of the City on appellants' First Amendment claim and
that the district court should have granted summary judgment in favor of appellants on their facial
challenge to Ordinance 03-003.
II.
This court does not have before it a generally applicable proscription on public nudity, see,
e.g., Barnes, 501 U.S. at 569 n. 2, 111 S.Ct. at 2462 n. 2, or a general prohibition on nudity in
establishments licensed to serve alcohol that is not limited solely to expressive conduct, see, e.g.,
Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943, 944 n. 2 (11th Cir.1982). Presumably, either
of those approaches would have accomplished the City's avowed goals and survived First
Amendment scrutiny.16 Instead, the City of Mobile chose to address the problems associated with
"nudity, sexual conduct[,] and [the] depiction thereof[ ] coupled with alcohol in public places," City
of Mobile Ord. 03-003, by subjecting to criminal sanction only activity clearly recognized to be
within the protection of the First Amendment. Because I believe that the First Amendment prohibits
the City of Mobile from enacting such a regulation and that the majority has misapplied
long-established First Amendment principles, I respectfully DISSENT.
16
Of course, these approaches could fail First Amendment scrutiny if they were merely
intended to mask a governmental motive to suppress protected expression. See Krueger v. City
of Pensacola, 759 F.2d 851 (11th Cir.1985).