The Dallas Convention Center. Source: dallassports.org.

In October of this year, the Fifth Circuit Court of Appeals ruled that an operator of an adult entertainment convention called “Exxxotica” had standing to challenge the City of Dallas, Texas’s 2016 decision not to enter into a contract allowing the event. The appeals court’s decision reversed a prior ruling by the federal district court dismissing the case.

In 2015, Three Expo Events, L.L.C., held the Exxxotica event at the Dallas Convention Center. The event, which featured near-nudity and a variety of suggestive activities, caught the attention of community members who believed that the event was immoral. These protesters then asked Dallas’s mayor to prohibit a second annual convention, and the mayor obliged. In 2016, the city refused to renew the event’s contract, and the city council approved a resolution prohibiting the same. Three Expo Events then filed suit, alleging First Amendment violations.

Because the city council’s resolution only prohibited Three Expo Events, and not its subsidiary—which would have been the party to the convention center contract—the district court found that Three Expo Events lacked standing to challenge the city’s decision. Continue Reading Appeals Court Finds That Dallas Adult Convention Case Can Proceed

An adult business in Louisiana. Source: Facebook.

Last month, the federal Court of Appeals for the Fifth Circuit invalidated a Louisiana statute prohibiting nude erotic dancing by 18 to 21-year-old women, finding that the law was too vague and thus violated the First Amendment.  The law was passed by the Louisiana legislature in 2016, and applied to locations that serve alcoholic beverages in connection with nude dancing.  Erotic dancers were previously required to be at least 18 years of age, and state law—both before and after the 2016 law—did not permit total nudity.

The court addressed the law as a content neutral regulation of expressive conduct, in line with Fifth Circuit precedent requiring adult business regulations to be analyzed under intermediate scrutiny.  The court analyzed the law under the four-part standard for determining the constitutionality of regulations of expressive conduct under United States v. O’Brien.  The court reversed the district court’s conclusion that the law was not narrowly tailored, on the grounds that Louisiana state courts had limited the act’s application beyond its plainly legitimate sweep.  Thus, the law was tailored to the state’s interest in reducing negative secondary effects associated with adult entertainment establishments.  The court went on, however, to find that the law was unconstitutionally vague.  Specifically, the court found that the law in question, which prohibited exposure “to view” of the dancers’ breasts and buttocks, did not clearly prohibit specific conduct.  On these grounds, the court invalidated the statute.

While this case does not deal with local regulations (which are generally the subject of our blog), it provides further direction to local governments addressing adult entertainment businesses.  Specifically, local governments need to clearly identify the type of conduct that is permissible in adult entertainment establishments, and should not rely on state laws that might not be sufficiently specific in that regard.

Doe I v. Landry, 905 F.3d 290 (5th Cir. 2018).

The Gentleman’s Playground in Rocky Mount, North Carolina. Source: Yelp

This post was authored by Otten Johnson summer associate Lindsay Lyda.  Lindsay is a rising third-year law student at the University of Colorado Law School.

A few weeks ago, the Fourth Circuit Court of Appeals affirmed a district court’s summary judgment order upholding Rocky Mount, North Carolina’s sexually-oriented business regulations against a First Amendment challenge by an exotic dance club known as “The Gentlemen’s Playground.”  As this is a professional blog, we will refrain from further commentary on the combination of the parties’ names, but invite our readers to conjure up whatever creative taglines come to mind.

American Entertainers has operated the club in Rocky Mount since 2002.  The city requires that all sexually oriented businesses obtain a license.  After discovering that The Gentlemen’s Playground was not licensed, the city sought to enforce its ordinance against the owner.  In response, American Entertainers challenged the constitutionality of the ordinance under the First and Fourteenth Amendments.  The district court granted summary judgment for the city.  On appeal the Fourth Circuit affirmed in part and reversed in part.

American Entertainers asserted that the definition of “sexually oriented business” in the ordinance was overbroad, so as to encompass “conventional, mainstream arts and entertainment.”  The Fourth Circuit rejected the claim and found that the ordinance was adopted for a purpose unrelated to suppression of expression, i.e. to offset the deleterious consequences, like lower property values and increased rate of crime, that accompany exotic dance clubs.  The court further found that the licensing requirement materially advanced the city’s substantial interest.  According to the court, the licensing fee was an acceptable way for the city to counteract some of the administrative and enforcement burdens that exotic dance clubs bring to a city.  The court also found that the ordinance was narrowly tailored to this important interest, noting that American Entertainers offered no evidence that the license itself restricted free speech.

Additionally, American Entertainers challenged two of the license-denial provisions, including one that allowed the city’s police chief to deny a license if the business would not comply with “all applicable laws,” and another that prohibited any applicant under twenty one years old from obtaining a license to operate a sexually oriented business.  The appeals court held that the provision allowing denial for violation of applicable laws was an unconstitutional prior restraint.  It failed to limit the phrase “applicable laws” and was susceptible to the chief of police creating trivial reasons to deny a license.  Ultimately, the court remanded this issue to the district court to determine whether and to what extent this provision is severable from the rest of the ordinance.

Finally, the plaintiff argued that the age restriction infringed upon equal protection and the First Amendment right to freedom of expression.  However, because the equal protection clause of the Fourteenth Amendment does not recognize age as a suspect class, the age restriction needs only to be rationally related to the city’s interest.  The court had no difficulty reasoning that because alcohol is typically served at exotic dance venues, the age restriction was rationally related to the city’s interest in ensuring the business owners of sexually oriented businesses are of legal drinking age.  Therefore, the court affirmed the district court’s denial of the Equal Protection challenge.

American Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707 (4th Cir. 2018).

A Hustler Hollywood store in Fresno, California. Source: KSFN.

Last month, the Seventh Circuit Court of Appeals affirmed a district court’s denial of an adult business’s motion for preliminary injunction against Indianapolis.  The appeals court found that the business, Hustler Hollywood (HH), was unlikely to prevail on the merits of its as-applied First Amendment claim against the city.

In the case, HH entered into a ten-year lease on a property located in the city’s C-3 commercial zoning district.  It had a problem, though:  the C-3 district prohibits adult entertainment businesses, except with a variance.  When the plaintiff applied for sign and building permits with the city’s Department of Business and Neighborhood Services, it was flagged as potentially disallowed by the zoning code.  While HH submitted various materials to try to convince city staff that it was not an adult entertainment business as defined by the code, staff determined that the use was not permitted in the C-3 district.  The plaintiff appealed to the city’s zoning appeals board, which voted 5-0 to affirm staff’s determination.

Instead of appealing the board’s decision to the Indiana state courts as provided by state statute, HH filed a federal First Amendment claim.  It sought preliminary injunctive relief, but the district court denied the motion.

On appeal, the Seventh Circuit found that the city’s zoning scheme was constitutional under the secondary effects doctrine.  The court held that the city’s regulation of sexually-oriented businesses, which allowed adult entertainment businesses in other zone districts (just not in the C-3 district), was properly aimed at preventing negative secondary effects of such establishments.  The court further found that HH had several alternative avenues for communication, including in several other zoning districts around the city—including the zoning district directly across the street from Hustler Hollywood’s property.  To the extent HH believed that city staff erred in classifying its business as an adult entertainment business, the Seventh Circuit advised that HH should have brought a state court appeal, as the classification of the business is not of First Amendment concern.

The Seventh Circuit’s decision in the case is yet another indicator that the secondary effects doctrine remains alive and well following Supreme Court cases that have walked back a more liberal content neutrality standard.

HH-Indianapolis, LLC v. Consolidated City of Indianapolis and Cnty. of Marion, 889 F.3d 432 (7th Cir. 2018).

This weekend (May 6th-9th, 2017) brings us to the American Planning American’s National Conference in New York City.  Along with colleagues from around the country, we’ll be talking about everything land use and the First Amendment, from signs to adult businesses, religious land uses, and the public forum doctrine.  If you’re planning to be at the conference, please join us for the following panel presentations:

  • On Monday, May 8 at 4:15 p.m. ET, Brian Connolly will join Evan Seeman of Robinson & Cole and Noel Sterrett of Mauck & Baker in a presentation entitled “Planning and Zoning for First Amendment-Protected Land Uses,” which focus on sign regulation, regulation of religious land uses, and adult business regulation, among other interesting topics.  The speakers recently co-wrote an article that appeared in the newsletter of the American Planning Association’s Planning & Law Division on these topics, which can be found here.
  • On Tuesday, May 9 at 7:45 a.m. ET, Brian Connolly and Alan Weinstein, professor of planning and law at Cleveland State University, will present on “Planners and the Public Realm: Legal Rights and Planning Issues,” which will dive more deeply into the public forum doctrine and the opportunities and constitutional limitations associated with planning for public spaces.

We look forward to seeing many of our friends and readers in New York!

Last week, a federal district court in Massachusetts accepted a nude dancing establishment’s argument that the City of Chelsea violated the First Amendment in denying a building permit for renovations to the business’s premises.  In so doing, the court struck down the city’s adult business zoning regulations and directed the city to treat the establishment under other use classifications contained in the code.

Chelsea’s zoning code provides for several zoning districts, including industrial, highway business, shopping center, and retail commercial business districts.  The code allows for an “art use”, defined as “the creation, manufacture or assemblage of visual art, including two or three dimensional works of fine art or craft, or other fine art objects created, manufactured or assembled for the purpose of sale, display, commission, consignment or trade by artists or artisans; or classes held for art instruction,” in the industrial district, and by special permit in the retail business and highway business districts.  The code also allows for theater uses in the retail and shopping center districts, and adult entertainment uses in the highway commercial and shopping center districts.  Adult entertainment uses and theater uses are not allowed in the industrial district. Continue Reading Massachusetts Court Strikes Down Local Adult Business Regulations

The Taboo adult novelty store in Columbia, South Carolina. Source: thestate.com.

In an unpublished decision issued in late January, the Fourth Circuit Court of Appeals held that a Columbia, South Carolina regulation limiting the locations of adult businesses was a valid, content neutral regulation, applying what is commonly known as the “secondary effects” doctrine.  That doctrine allows local governments to specially regulate adult businesses in a content neutral manner on the grounds that such regulations counter the secondary effects—such as crime, prostitution, and neighborhood blight—of such businesses.

In December 2011, an adult business—“Taboo”—opened the only adult business establishment in Columbia, a book and novelty store.  That same month, Columbia enacted restrictions on adult businesses, including a 700-foot dispersal requirement from “sensitive” uses such as religious institutions, schools, parks, and residential uses, as well as a 1,000-foot dispersal requirement from other adult uses.  The regulations allowed a two-year amortization period in which an adult business in one of the restricted areas could operate before being shut down.  Taboo was located in one of the restricted areas, and continued to operate for the amortization period.  At the end of the amortization period, Taboo sued the city under the First Amendment. Continue Reading Secondary Effects Doctrine Lives On in Fourth Circuit Decision

Earlier this month, the 11th Circuit considered the constitutionality of an ordinance enacted in Sandy Springs, Georgia, which criminalizes the distribution of sexual devices.  Although not a First Amendment case, we’re including a post on the case because the decision relates to a First Amendment-protected land use—adult businesses—and introduces an alternative constitutional theory for challenging regulation of adult businesses.

Appellants in the case claimed that the Sandy Springs ordinance violated their substantive due process right to privacy.  Appellants included an adult bookstore that sells sexually explicit materials and items, including sexual devices, and a woman suffering from multiple sclerosis who uses sexual devices with her husband to facilitate intimacy.  Although expressing sympathy with appellants’ claims, the court held that it could not break from a 2004 11th Circuit decision that held that privacy-based rights, including the right to buy, sell and use sexual devices, were not fundamental rights under the Constitution, and affirmed the district court’s dismissal of the case.

Appellants encouraged the court to reconsider its analysis of privacy-based rights based on the Supreme Court’s recent decisions in United States v. Windsor, 133 S. Ct. 2675, 570 U.S. 12 (2013) and Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S. ___ (2015).  Appellants contended that these decisions clarified the existence of a fundamental right to engage in acts of private, consensual sexual intimacy.  However, even though the court characterized its 2004 decision as “wrong,” the court found it could not overrule its prior holding absent the Supreme Court’s express recognition of privacy as a fundamental right.

Although circuit precedent prevented the 11th Circuit from recognizing adult businesses as having protection under the due process clause, due process protection of privacy exists in other circuits and may not be far off in the 11th Circuit (the court actually encouraged the appellants to have their decision reviewed en banc).  If privacy rights are afforded fundamental rights status under the Due Process Clause, land use and zoning restrictions related to adult businesses may be challenged based on more than First Amendment claims.  Whereas local governments may defeat First Amendment challenges using the “secondary effects doctrine,” which permits some burden on speech when the regulation targets the negative effects of speech and not the speech itself, claims that land use and zoning restrictions violate the Due Process Clause will require a heightened standard of review that could prove difficult for some local governments to withstand.

Flanigan’s Enterprises, Inc. v. City of Sandy Springs, No. 14-15499, 2016 WL 4088731 (11th Cir., Aug. 2, 2016).

In an opinion issued last month, a federal district court in Texas denied an event promoter’s request for a preliminary injunction to compel the City of Dallas to contract with the promoter for use of the Dallas Convention Center in connection with a three-day adult entertainment expo called “Exxxotica.”

The promoter contracted with the City to hold Exxxotica at the Convention Center in 2015.  Prior to that event, the promoter had promised the City that no one under eighteen would be admitted to the event, sexual activities would be prohibited and no obscenity or public lewdness would be permitted.  However, despite the promoter’s promises, the City had evidence, including video footage, of likely underage attendees and lewd conduct at the event. Continue Reading Court Denies Adult Expo’s Motion for Preliminary Injunction; City’s Convention Center is a Limited Public Forum

Pictured above is Silk, a club owned by one of the plaintiffs in the case. Source: onmilwaukee.com

Before 2012, the City of Milwaukee, Wisconsin required strip clubs to obtain one of three business licenses: if the club included both alcohol and nudity, the club would require both a liquor license and a “tavern-amusement license”; a dry strip club required either a “theater license” or a “public-entertainment club license.” Continue Reading $435,000 Damage Award to Milwaukee Strip Club Upheld