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HomeMy WebLinkAboutCourt Cases Supporting Documentation for Renton City Council's adoption of Ords. #4594 & #4595 - Effective 5/12/96 CASES CASES INDEX OF CASES INO INO,INC.v. CITY OF BELLEVUE: JUDGMENT. 4 foot separation is constitutional,minimum illumination is constitutional. 2. INO INO, INC.; DEJA-VU BELLEVUE, INC.; RONDA REMUS v. CITY OF BELLEVUE: AMENDED FINDINGS OF FACT AND CONCLUSIONS OF LAW. Findings 4 & 7- Bellevue's study reviewed police research from Detroit Cleveland, Kent and Bothell which showed increased crime in areas with adult entertainment uses including prostitution and other sexual misconduct, and heard testimony from a Seattle police lieutenant and a Bothell Deputy Chief concerning numerous arrests for prostitution, sexual misconduct and other crimes associated with adult entertainment uses. Finding 7 - Bellevue corporal visited several establishments and based on his experience and that of other jurisdictions concluded that prostitution, sexual misconduct and other crimes would likely occur. Finding 8 - Similar narrative report from Pierce County Police. Findingsl1 & 18 - Table, couch or taxi dances resulted in prostitution and sexual misconduct. Finding 19 - Undercover operations in 1991 and 1993 resulted in multiple arrests. Finding 25 - Stage dances allow entertainers to convey an erotic sensual message to patrons at a distance of 8 to 40 feet away. Finding 27 - The smell and `heat" emanating from dancers dancing close to patrons constitutes conduct,not speech. Findings 32-36 - The City has a substantial interest in licensing entertainers and owners. Conclusions 10, 19 & 34 - Even if required, the illumination, distance, separation and tipping regulations are reasonable time,place and manner restrictions. 3. DEJA VU-EVERETT-FEDERAL WAY, INC. v. CITY OF FEDERAL WAY:RULINGS ON MOTIONS FOR SUMMARY JUDGMENT. The Federal Way ordinance is constitutional on Federal grounds. The ordinance is the same as Bellevue's. There is collateral estoppel on state grounds. The ordinance is a reasonable time,place and manner restriction. 4. BSA,INC.v.KING COUNTY, 804 F.2d 1104 (9th Cir. 1986). The requirement that nude entertainment be performed a certain distance from patrons is a valid place and manner restriction. Ban on barroom topless dancing is unconstitutional. The distance requirement furthers a legitimate goal. 5. BOLSER v.LIQUOR CONTROL BOARD, 90 Wn.2d 223, 580 P.2d 629. The Liquor Board rule regulating topless dancing to raised stage at least six feet from nearest patron is not unconstitutional. 6. COUNTY OF KING v.KENT D. CHISMAN, 33 Wn. App. 809, 658 P.2d 1256. Even assuming First Amendment protection for topless dancing, the ordinance regulating such dancing is a reasonable time,place and manner restriction. 7. KITSAP COUNTY v.KEV,INC., 106 Wn.2d 135, 720 P.2d 818. The communication of a nude dancer is entitled to First Amendment protection, but nudity itself is conduct and subject to police power.regulation. 8. KEV,INC.v.KITSAP COUNTY, 793 F.2d 1053 (9th Cir. 1986). An ordinance which prohibits patrons and dancers from fondling or caressing one another and requiring all dancing at least ten feet from patrons on a raised stage and no tipping is constitutional. 9. KAREN M. O'DAY v.KING COUNTY, 109 Wn.2d 796, 749 P.2d 142. A raised stage provision was upheld. • 10. SEATTLE v.MARSHALL, 83 Wn.2d 665, 521 P.2d 693. This case from Washington applied obscenity law to indecent exposure by nude dancers. 11. JJR INC.v. SEATTLE, 126 Wn.2d 1. A stay of adult entertainment license revocation or suspension pending judicial review is required by Constitution. 12. ACORN INVESTMENTS,INC.v. CITY OF SEATTLE, et al., 887 F.2d 219. Proof of negative secondary effects necessary in order to regulate adult entertainment. 13. BERING v. SHARE, 106 Wn.2d 212, 721 P.2d 918. A speech restriction based on location is valid if content neutral, narrowly drawn and there are ample alternative channels of communication. Restricting future speech as a sanction for past similar speech which abused right of free speech is not invalid. 14. CURTIS v. SEATTLE, 97 Wn.2d 59, 639P.2d 1370. • Regulation of nudity and explicit sexual activity is constitutional as long as allowance is made for the expression of ideas under specified conditions. 15. SEATTLE v.BITTNER, 81 Wn.2d 747, 505 P.2d 126. Denial of right to speak based on prior abuse is unconstitutional. Restraint is permissible only if safeguards are present, including prompt judicial review. 16. ADULT ENTERTAINMENT v.PIERCE CY., 57 Wn.App. 435, 788 P.2d 1102. Open booths, license fees, and a 30-day waiting period for a license are valid for adult panoram machine business. 17. D.C.R. ENTERTAINMENT v. PIERCE COUNTY, 55 Wn. App. 505, 778 P.2d 1060. Nude dancing is protected expression. Licenses can't be denied based on character, the effect of the activity on general welfare, or past violations of the law. 18. WORLD WIDE VIDEO v. TUKWILA, 117 Wn.2d 382, 816 P.2d 18. The government must show that an ordinance regulating speech furthers a substantial governmental interest. Identity of all persons holding a significant interest in the business may be required. Reasonable times for issuing licenses must be stated with prompt judicial review of denial. 19. MILLER v. CIVIL CITY OF SOUTH BEND, 904 F.2d 1081 (7th Cir. 1990). Non-obscene nude barroom dancing is expression and cannot be banned. 20. SEATTLE v. BUCHANAN, 90 Wn.2d 584, 584 P.2d 918. Those not engaged in expressive or communicative activities have no constitutional rights to public nudity. Even if free speech is claimed, regulation of nudity is allowed if reasonable allowance is made for communication. 21. FW/PBS,INC.v. DALLAS, 493 U.S. A licensing scheme must have time limit within which to issue license. Expeditious judicial review is required, with the City bearing the burden in court. 22. EVERETT v. HEIM, 71 Wn. App. 392, 859 P.2d 55. The law regulating an employee touching a patron to arouse sexual desires, sitting on patron's lap or separating patron's legs regulates conduct only, and is reasonable. 23. UNITED STATES v. O'BRIEN, , 391 U.S. Draft card burning led to criminal prosecution. First Amendment regulation is justified if (1)it is within the power of government, (2)it furthers a substantial governmental interest, and(3)it is the least restrictive means available. 24. RENTON v.PLAYTIME THEATRES,INC., 475 U.S. Content neutral time,place and manner restrictions are acceptable as long as they further a substantial governmental interest and do not unreasonably limit alternative avenues of communication. A regulation is content neutral when its predominant concerns are negative secondary effects, not the content of the speech. Cities may rely on the experience of other governments. 25. RONALD L. FREEDMAN v. STATE OF MARYLAND, 85 S. Ct. 734 (1965). Illegal prior restraint of speech occurs when there is not prompt judicial review of a license denial or suspension, there is no stay during review, and the speaker assumes the burden of proof. 26. FRANK GENUSA v. CITY OF PEORIA, 619 F.2d 1203 (1980). Licensing scheme is invalid where the license won't be issued without building code inspection, special police investigation, and employee licensing before beginning employment. 27. TK'S VIDEO,INC.v. DENTON COUNTY, TEX., 24 F.3d 705 (5th Cir. 1994). 60 day license application review period was acceptable. Automatic stay pending appeal wasn't necessary where expeditious judicial review was available. 28. BARNES v. GLEN THEATRE,INC., 111 S.Ct. 2456 (1991). Requiring wearing of pasties and a G-string is constitutional. Although nude dancing is protected,it may be regulated. 29. SCHAD v. MOUNT EPHRAIM, 452,U.S. Nude dancing has some First Amendment protection. A prohibition of live entertainment prohibits protected activity. Sufficient government reasons were not stated to justify the regulation. A8.121:02. I• • 1 • 2 The Honorable Carol A. Schapira 3 , 4 : 5 6 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON • 8 IN AND FOR THE COUNTY OF KING 9 ) INO INO, INC., • 10 . ) • Plaintiff, ) No. 95-2-02025-9 11 : ) v. • ) 12 ) JUDGMENT CITY OF BELLEVUE, ) 13 ) Defendant. ) 14 ) 15 This matter was tried by the Court without a jury from March 13 to March"20, 1995, the 16 Honorable Carol Schapira presiding. Plaintifflno Ino,.Inc. appeared by its designated agents and was 17 " repesented by Gilbert H. Levy. Defendant City of Bellevue'appeared by its designated agents and 18 was represented by Stephen A. Smith and Robert B. Mitchell of Preston Gates &Ellis. 19 The Court received the evidence and testimony offered by the parties, considered the • • 20 pleadings filed in the action, and heard the oral argument of the parties' counsel. The Court made 21 written findings of fact and conclusions of law, which were entered on April 3, 1995. The Court has 22 this date entered amended findings of fact and conclusions of law. A copy of the amended findings 23 • and conclusions is attached as Exhibit A. Consistent with these findings of fact and conclusions of 24 law, the Court enters judgment as follows: 25 • 26 l l ' JUDGMENT-1 J:1RBM116176-OO.0221judgino.DOC PRESTON GATES&ELLIS 3000 COLUMBIA CENTER 701 FIFTH AVENUE SEATILE.WASHINGTON 98104-707S TELEPHONE(206)623-7580 • FACSIMILE:(206)623.7022 1 1. BCC § 5.08.070(A)(6) is interpreted to require that no employee or entertainer may 2 , perform any dance, performance or exhibition in or about the non-stage area of the adult cabaret 3 unless at a distance of no less than four feet from his or her customer. The four-foot distance is to be 4 measured from the torso of the dancer to the torso of the customer. So interpreted, the ordinance is E ' 5 constitutional. 6 , 2. The prohibition on the use of nude persons or images of nude persons outside adult 7 cabarets contained in BCC § 5.08.070(B)(2) is unconstitutional, because it is not limited to that which 8 ; .is obscene or harmful to minors, nor mentioned in BCC § 5.08.070(F). BCC § 5.08.070(B)(2) is 9 severed from the remainder of the ordinance. 10 3. The minimum illumination standard in BCC § 5.08.070(D)(2) for public areas of adult 11 ; cabarets is 30 lux horizontal, measured at 30 inches from the floor and on 10-foot centers. This 12 standard does not require 30 lux at all points within the public areas. • 13 4. Plaintiffs are denied a preliminary or permanent injunction. The temporary restraining 14 order entered by this Court on February 24, 1995, has been dissolved. 1.5 5. Plaintiffs claims for taking of property without justification, contained at paragraphs 16 . 5.4 and 6.2 of its Complaint for Injunction and Declaratory Relief and Damages, have not been • • IT. decided. - 1 8 6. All other claims asserted by the plaintiff in this action to date are dismissed with 19 prejudice and with costs. 20 7. . The Court finds that there is no just reason for delay in the entry of this judgment. In 21 enforcing its ordinance, defendant is entitled to rely upon a final adjudication as to the merits of ( 22 plaintiffs claims under the First Amendment and article 1, section 5 of the Washington Constitution. 23 In addition, plaintiff seeks monetary damages attendant to its constitutional claims. These alleged 24 damages will continue to accrue during the pendency of this action. The Court therefore directs 25 immediate entry of this judgment under Civil Rule 54(b). 26 JUDGMENT-2 J:1RBM118178-00.0221judgino.00C PRESTON GATES&Ft I TS 5000 COLUMBIA CENTER 70l FIFTH AVENUE SEATTLE,WASHINGTON 98104-7078 TELEPHONE:(206)623-7580 • FACSIMILE:(206)623.7022 r a h 1 DA1•hD this,/ day of April, 1995. 2 ,uLytt 4 ` THE HONORABLE CAROL A. SCHAPIRA 5 6 • Presented by: 7 PRESTON GATES& ELLIS 8 ° 9 ' By Step en A. Smith, wsaA#08039 10 Robert B. Mitchell wSBA#10874 Attorneys for Defendant City of Bellevue 11 . Copy received; approved as to form: • 12 13 • 14 ; Gilbert H. Levy, ws8A#04e05 • 15 ; Attorney for Plaintiff Ino Ino, Inc. 16 1.7 _ _ - .. . . . ---• 18 19 20 21 22 23 • 24 25 • 26 • JUDGMENT-3 J:1RBM118178-00.0221Judgino.DOC PRESTON GATES&ELLIS 5000 COLUMBIA CENTER. 701 FIFTH AVENUE SEATTLE,WASHING ON 981047078 TELEPHONE:(206)623-7580 FACSIMILE:(206)623-7022 1 • 2 The Honorable Carol A. Schapira 3 4 5 6 : • 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 8 IN AND FOR THE COUNTY OF KING 9 • DEJA VU-BELLEVUE, INC., a Washington • ) 1.0 corporation, ) 11 Plaintiff, ) No 94-2-22796-3 ) 12 v. ). ) JUDGMENT 13 CITY OF BELLEVUE, ) ) - 14 : Defendant. ) ) 15 ; 16 This matter was tried by the Court without a jury from March 13 to March 20, 1995, the TT .. 1.. /1 !� 1 1• 1 T 11 _Inc. its � A...l _ i7 Huu.jrable;Carol Schapiro piesiding. PlaintiffDeja-Ju Bellevue, Inc. appeared by designated 18 agents and was represented by Jack R. Burns of Burns &Hammerly. Defendant City of Bellevue 19 appeared by its designated agents and was represented by.Stephen A. Smith and Robert B. Mitchell 20 of Preston Gates&Ellis. • 21 The Court received the evidence and testimony offered by the parties, considered the 22 pleadings filed in the action, and heard the oral argument of the parties' counsel. Before it rested, 23 plaintiff voluntarily dismissed the claims set forth in paragraphs IV.2.W, X, Y, Z, and AA of its 24 Second Amended Complaint for Declaratory Judgment and Injunctive Relief. Accordingly, those 25 claims are no longer before the Court. 26 JUDGMENT- 1 J:VRBIM1617B-00.022yudgdeja:DOC • PRESTON GATES&ELLIS 5000 COLUMBIA CENTER 701 FIFTH AVENUE SEATTLE,WASHINGTON 98104-7078 TELEPHONE(206)623-7580 FACSIMILE:(206)623-7022 , 1 The Court made written findings of fact and conclusions of law, which were entered on April 2 3, 1995. The Court has this date entered amended findings of fact and conclusions of law. A copy of 3 the amended findings and conclusions is attached as Exhibit A. Consistent with these findings of fact 4 and conclusions of law, the Court enters judgment as follows: 5 1. BCC § 5.08.070(A)(6) is interpreted to require that no employee or entertainer may 6 perform any dance, performance or exhibition in or about the non-stage area of the adult cabaret 7 unless at a distance of no less than four feet from his or her customer. The four-foot distance is to be 8 ' measured from the torso of the dancer to the torso of the customer. So interpreted, the ordinance is 9 , constitutional. 10 2. The prohibition on the use of nude persons or images of nude persons outside adult 11 cabarets contained in BCC § 5.08.070(B)(2) is unconstitutional, because it is not limited to that which 12 , is obscene or harmful to minors, nor mentioned in BCC § 5.08.070(F).' BCC § 5.08.070(B)(2) is 13 severed from the remainder of the ordinance. 1.4 3. The minimum illumination standard in BCC § 5.08.070(D)(2) for public areas of adult 15 cabarets is 30 lux horizontal, measured at 30 inches from the floor and on 10-foot centers. This 16 standard does not require 30 lux at all points within the public areas. 17 4. Plaintiff it; denied:a preliminary or permanent injunction.` The-temporary-restraining- - 1 8 order entered by this Court on February 24, 1995, has been dissolved. 19 5. All claims asserted by the plaintiff in this action (apart from the one addressed in 20 paragraph 2 and those voluntarily dismissed, set forth above) are dismissed with prejudice and with 21 costs. 22 DATED this day of April, 1995. 23 24 25 THE LOCTIE O A. SCHAPIRA 26 JUDGMENT-2 J:1RBM116178-00.022judgdeja.DOC PRESTON GATES&ELLIS 5000 COLUMBIA CENTER 701 FIFTH AVENUE SEATTLE,WASHINGTON 98104-7078 TELEPHONE:(206)623-7580 FACSIMILE:(206)623-7022' • I _ l , Presented by: 2 : PRESTON GATES& ELLIS 3 : • 4 BY •%%� 01Z Step en A. Smith, WSBA#owls 5 , Robert B. Mitchell WSBA#10874 Attorneys for Defendant City of Bellevue 6 ' Copy received; approved as to form: 7 BURNS&HAIv M RLY 8 : 9 By 10 ' Jack R. Burns, WSBA#01580 Attorneys for Plaintiff Deja Vu-Bellevue, Inc. 11 12 13j 14 15 16 17 18 19 : 20 • 21 22 23 24 25 26 JUDGMENT-3 J:1RBM118178-00.022judedeja.DOC PRESTON GATES&ELLIS 5000 COLUMBIA CENTER 701 FIFTH AVENUE SEATILE,WASHINGTON 98104-7078 TELEPHONE(206)623.7580 FACSIMILE:(206)623-7022 • • 2 The Honorable Carol A. Schapira 3 4 5 • 6 • 7 IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON 8 IN AND FOR THE COUNTY OF KING 9 RONDA REMUS, et al., ) 10 [ ) Plaintiffs, ) No. 94-2-27797-9 11 • ) v. ) JUDGMENT 12 CITY OF BELLEVUE, ) 13 )Defendant. 14 ° ) • 15 This matter was tried by the Court without a jury from March 13 to March 20, 1995, the 16 Honorable Carol Schapira.presiding. Plaintiffs Ronda Remus, Esmeralda Silva and Victoria • .. i7y . McKnight appeared personally and were represented by Gilbert H. Levy. Defendant City of Bellevue 18 appeared by its designated agents and was represented by Stephen A. Smith and Robert B. Mitchell • 19 of Preston Gates&Ellis. • 20 . The Court received the evidence and testimony offered by the parties, considered the 21 pleadings filed in the action, and heard the oral argument of the parties' counsel. The Court made 22 . written findings of fact and conclusions of law, which were entered on April 3, 1995. The Court has 23 this date entered amended findings of fact and conclusions of law. A copy of the amended findings 24 and conclusions is attached as Exhibit A Consistent with these findings of fact and conclusions of 25 law, the Court enters judgment as follows: • 26 . JUDGMENT- 1 • J:1RBM116176-00.0221judprom.DOC PRESTON GATES&ELLIS 5000 COLUMBIA CENTER • 701 FIFTH AVENUE SEATILE,WASHINGTON 98104-7078 • TELEPHONE:(206)623-7580 FACSIMILE:(206)623-7022 A 1 1. BCC § 5.08.070(A)(6) is interpreted to require that no employee or entertainer may 2 perform any dance, performance or exhibition in or about the non-stage area of the adult cabaret 3 f• unless at a distance of no less than four feet from his or her customer. The four-foot distance is to be 4 : measured from the torso of the dancer to the torso of the customer. So interpreted, the ordinance is 5 ` constitutional. 6 ° 2. The prohibition on the use of nude persons or images of nude persons outside adult 7 cabarets contained in BCC § 5.08.070(B)(2) is unconstitutional, because it is not limited to that which 8 • is obscene or harmful to minors, nor mentioned in BCC § 5.08.070(F). BCC § 5.08.070(B)(2) is 9 severed from the remainder of the ordinance. 10 3. The minimum illumination standard in BCC § 5.08.070(D)(2) for public areas of adult 11 cabarets is 30 lux horizontal, measured at 30 inches from the floor and on 10-foot centers. This 12 standard does not require 30 lux at all points within the public areas. 13 ' 4. Plaintiffs are denied a preliminary or permanent injunction. The temporary restraining 14 order entered by this Court on February 24, 1995, has been dissolved. 15 ° 5. All claims asserted by the plaintiffs in this action are dismissed with prejudice and with 16 , costs. 17 DATED this' �11. of April, 1995: 1819 20 THE HONO LE AROL A. SCHAPIRA 21 Presented by: • 22 PRESTON GATES&ELLIS • 23 24 By .,7at ' Steph n A. Smith, wsBAaoeo o 25 Robert B. Mitchell wSBA#10874 Attorneys for Defendant City of Bellevue 26 JUDGMENT-2 J:1R8M118178-00.0221judgrem.DOC PRESTON GATES&ELLIS 5000 COLUMBIA CENTER 701 FIFTH AVENUE SEATTLE,WASHINGTON 98104-7078 TELEPHONE(206)623-7580 • • FACSIMILE:(206)623-7022 1 Copy received; approved as to form: 2 3 I 4 ; Gilbert H. Levy, WSBA#04805 • Attorney for Plaintiffs Ronda Remus, • 5 : Esmeralda Silva, and Victoria McKnight 6 : 7 8 9 10 • 11 ! 12 13 14 ! 15 16 • 17 _ 18 ' 19 20 • 21 22 23 • 24 25 26 JUDGMENT-3 J:1RBM118178-00.0224ud9rem.DOC PRESTON GATES&ELLIS 5000 COLUMBIA CENTER 701 FIFTH AVENUE SEATfLE.WASHINGTON 98104-7078 TELEPHONE:(206)673-7580 FACSIMILE:(206)623-7022 mile Honorable Carol A. Schapira IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON IN AND FOR KING COUNTY INO INO, INC., ) ) Plaintiff, ) NO. 95-2-02025-9 ) v ) ) CITY OF BELLEVUE, ) ) Defendant. ) ) DEJA-VU BELLEVUE, INC., a ) No. 94-2-22796-3 Washington corporation, ) ) Plaintiff, ) ) v. ) CWI'Y"OF BELLEVUE, ) ) Defendant. ) • ) RONDA REMUS, et al., ) No.. 94-2-27797-9 ) Plaintiffs, ) AMENDED FINDINGS OF FACT AND ) CONCLUSIONS OF LAW v. ) ) CITY OF BELLEVUE, ) • ) Defendant. ) ) • FINDINGS OF FACT AND CONCLUSIONS OF LAW - 1 A:uxi.DOC THIS MATTER came on for hearing before this Court on March 13-20, 1995, on plaintiffs' motions for preliminary injunction. The preliminary injunction hearing was consolidated with the trial on the merits under Civil Rule 65(a)(2). Plaintiffs Ino Ino, Inc., Remus, Silva, and McKnight were represented by Gilbert H. Levy. Plaintiff Deja Vu- Bellevue, Inc. was represented by Jack R. Burns of Burns & Hammerly. Defendant City of Bellevue was represented by Stephen A. Smith and Robert B. Mitchell of Preston Gates & Ellis. Having heard all of the testimony and reviewed all of the evidence, the Court now makes its findings of fact and enters its conclusions of law. FINDINGS OF FACT 1. Plaintiffs Remus, Silva and McKnight are entertainers licensed to perform in adult cabarets in the City of Bellevue. Plaintiff Ino Ino, Inc. operates an adult cabaret in Bellevue known as "Papagayo's." Plaintiff Deja Vu-Bellevue, Inc. plans to open one or more adult cabarets in Bellevue under the name "Deja Vu-Bellevue." Ino Ino, Inc. and Deja Vu-Bellevue are Washington corporations licensed in Bellevue. ._ . 2. Defendant City of Bellevue (the "City") is a municipality located in King • County, Washington, which licenses and regulates adult cabarets and the entertainers and managers of such cabarets. 3. Beginning in the 1984, the City began to study adult entertainment businesses, including adult cabarets. The City's Planning Commission held public hearings and reviewed various studies and other evidence regarding the regulation of such cabarets. The Planning FINDINGS OF FACT AND CONCLUSIONS OF LAW - 2 A:uua.DOC Commission included three persons (Lukens, Blacker, and Hague) who, by 1993, were members of the Bellevue City Council. [Lukens; Exhibits 32 and 33] 4. In September 1987 the Planning Commission wrote a study discussing the adverse secondary effects of adult entertainment establishments, including live cabarets. The Commission concluded that police research from Detroit, Cleveland, Kent and Bothell showed increased crime in areas with adult entertainment uses, including prostitution and other sexual misconduct. The Commission heard testimony on September 16, 1987, from Seattle Police Lt. Lee Bartley and Bothell Deputy Chief Rudy Plancich concerning adverse secondary effects associated with non-alcoholic adult entertainment clubs. That testimony cited numerous arrests for prostitution, various forms of sexual misconduct (e.g., illegal contact), and other crimes. Lt. Bartley proposed that the City adopt regulations that would limit the proximity of live dancers to patrons. The Planning Commission's study and conclusions were transmitted to the City Council on January 11, 1988. [Ex. 33, Vol. I, tab 2; Lukens] At_this oint'the:city had.no,negative effects from the three adult uses in. - - existence. 5. The city made no findings about adult entertainment clubs and focussed on the zoning of such businesses to avoid adverse effects on the surrounding community. 6. In November 1993 the City Council adopted the City's first adult cabaret ordinance, Ordinance 4602. That ordinance contained specific recitals that the City was committed to preserve "constitutionally protected forms of expression" and that the ordinance should not be construed to prohibit such expression. The ordinance was enacted, according • FINDINGS OF FACT.AND CONCLUSIONS OF LAW - 3 w:wa.DOC . I • to a recital, "because in the absence of such regulation, significant criminal activity has historically and regularly occurred." [Lukens; Ex. 3] 7. In the summer of 1994, the City undertook a study of adult cabarets in neighboring jurisdictions. Corporal Tony Dempsey of the Bellevue Police Department visited several area cabarets and discussed law enforcement problems with Detective J.P. Covey of King County Police and representatives of the Tukwila and Everett police departments. Based on his observations and the experience of the other jurisdictions, Corporal Dempsey concluded that adult cabarets were likely to produce prostitution, public sexual conduct and other crimes. He reported this to his superiors. [Dempsey, Covey; - Ex. 12] 8. Corporal Dempsey's findings were included in information provided to the ( City Council before its meeting.-on September 6, 1994. City staff and at least some City Council members also had access to a narrative report by Pierce County police alleging substantiaLillegal_conduct.(e.g.,-drug dealing,::prdstitution.and other sexual..conduct). at an - adult entertainment club. [Riordan; Blacker; Ex. 12, 14, 16 and 32] Council member Lukens had not seen the narrative while Council member Blacker was not sure if she saw it • before the ordinance was passed. 9. The City Council enacted Ordinance 4692 on September 6, 1994. That ordinance revised Ordinance 4602 by, among other things, establishing a minimum distance of eight feet for nude or partially nude performances; a minimum distance of four feet for FINDINGS OF FACT AND CONCLUSIONS OF LAW - 4 A:wu.DOC any dance performance or exhibition off-stage (e.g., table or couch dances); and a minimum lighting requirement of 30 lux. [Lukens, Blacker; Ex. 1, 5] 10. The City established an eight-foot minimum distance between nude stage dancers and patrons and required a 36" rail separating patrons from such dancers after conducting a test which showed that a "seven foot" police officer might be able to touch the dancer on stage. [Riordan, Lukens] 11. During undercover operations, police officers purchased individually compensated adult cabaret dances, whether termed table dances, couch dances, or taxi dances. Performed in close proximity in conditions of low light, there were many examples of improper exposure of genitals, sexual contact, and some acts .of prostitution. [Covey, Gillis, Dempsey,.Thibert, Kleinknecht; Exhibits 24, 32 and 33] There was no present or historical evidence in court (or to the City Council) of any improper touching on stage of nude dancers by patrons. 12. There was no evidence of unwanted or unexpected touching_of dancers as a - problem in any club. 13. The City established a four-foot minimum separation between entertainers performing non-stage dances and members of the public to place them just out of arm's reach and to permit visibility as to inappropriate sexual contact during dances. Consistent with this intent, the City interprets the four-foot standard as applying torso to torso. [Lukens, Riordan] FINDINGS OF FACT AND CONCLUSIONS OF LAW - 5 A A1U.DOC ` l 14. The City utilized Bellevue police officers and a lighting engineer to devise a lighting standard that would allow visibility to managers and law officers to adequately enforce ordinances in an adult cabaret. Based upon tests, they determined that a minimum of 30 lux on 10 foot centers would be appropriate. [J. D. Armstrong Declaration] 15. The City's predominate purpose in enacting its adult cabaret ordinances was to control the secondary effects associated with live adult entertainment. Before acting, the City received input from a variety of sources, including counsel for Deja Vu, an organization known as Washington Together Against Pornography, and citizens interested in the legislative process. The City has not attempted to put plaintiffs out of business or to prevent protected expression. [Blacker, Lukens] 16. The City found that the secondary effects associated with adult cabarets, including on-premises sexual contact, are not associated to the same degree with non-adult establishments. [Lukens, Riordan] Not all adult entertainment establishments have negative effects:.any greater than-other nightdme.establisbments. There was substantial testimony-that other establishments, particularly those which serve alcohol have greater negative effects than adult cabarets, especially as to assaults, car prowls, etc. 17. Papagayo's began operating as an adult cabaret in January 1995. A club called "Babes" (having at least some owners in common with Ino Ino, Inc.) opened in December 1994 providing female entertainers; it switched to male entertainers in 1995. Babes has operated as an unlicensed adult cabaret.. FINDINGS OF FACT AND • CONCLUSIONS OF LAW - 6 A AK1.DOC 18. After Babes and Papagayo's opened, numerous instances of improper sexual conduct were reported by Bellevue police officers. This included exposure of genitals and breasts by entertainers within four feet of a member of the public, and entertainers' fondling of customers' genitals. Some entertainers rubbed their buttocks into the groin areas of undercover officers. Several of the Bellevue officers stated that the lighting in the clubs was so low that they had difficulty seeing whether violations were occurring elsewhere in the club. The distance between performer and patron, when less than four feet, also inhibited their ability to detect ordinance violations or other illegal conduct unless they were very close to the violation. [Declarations of Hanna, Rasko, McIvor and Hoffman; testimony of Thibert and Kleinknecht] 19. King County police have conducted a variety of enforcement activities against adult entertainment clubs in King County. The clubs are owned by either the Deja Vu chain or persons associated with the Colacurcio family of Seattle. Following a six-week undercover investigation of one club in late 1991, Detective J.P. Covey.made approximately.: _ 20 arrests, including three or four for prostitution and 12 for illegal sexual contact. In an undercover operation by King County in 1993, 161 table dances were purchased. Of these, 160 contained either sexual contact or other violation. Nine prostitution cases were prepared as a result of this investigation, but when one defendant was murdered, only eight were presented for filing. The number of charges which could be brought for violations of adult entertainment ordinances in King County is limited only by the manpower available in law enforcement. [Covey, Gillis] There was virtually no evidence of convictions for any of FINDINGS OF FACT AND CONCLUSIONS OF LAW - 7 A:wu.DOC these alleged activities. Detective Covey indicated more prostitution arrests at the Red Lion in South King County than in his years of surveillance of the adult entertainment clubs in the same area. The 1991 and 1993 investigations by Detective Covey and King County did not involve the Deja Vu club located in Lake. City (now Lake Forest Park). 20. The 1993 King County investigation included the videotaping of activities at "Sugar's," Mr. Colacurcio's establishment in north King County. An unedited videotape shot on October 5, 1993, showed Detective Mike Gillis purchasing and receiving three $20 couch dances, which he termed "typical" $20 dances. The videotape showed the exposure of an entertainer's breasts and genitals, the placing of breasts into a detective's,face, and the rubbing of his genitals with an entertainer's hand, leg and buttocks. [Gillis; Ex. 24] 21. The lighting in the videotape was augmented by a neon sign above Det. Gillis's head, which has since been removed. The tape showed and the officers testified that it was difficult to determine whether contact occurred at couch dances involving other patrons, due.to.low lighting, the_angle of sight, and the proximity of patron and entertainer.. [Gillis, Covey; Ex. 24] 22. Entertainers in adult cabarets typically operate as independent contractors. They sign contracts with the adult cabaret or an associated talent agency requiring them to perform nude or semi-nude and to pay rent, which typically amounts to $65 or more per shift. [Bern, Ebert, McKnight] 23. As one entertainer performs on stage, typically nude, other entertainers who are partially clothed solicit and perform table dancers. There may be 50 or more entertainers • FINDINGS OF FACT AND CONCLUSIONS OF LAW - 8 A:tAKI.DOC performing simultaneously,.only one of whom is on the stage. One or two managers track who is performing couch dances. [Bern] 24. Entertainer rents are the largest source of revenue for adult cabaret operators. Operators do not compensate entertainers. They claim that, if they did so, they would lose money. [Bern, Ebert] The four foot distance will affect the revenue the dancer could expect to make. This is a disincentive to work at the club which affects the rents and revenue for the club as well. 25. During stage dances, entertainers perform for patrons from 8 to 40 or more feet away from the stage. The entertainers convey an erotic, sensual message that is - perceived by patrons at that distance. The eight-foot distance from the stage to the nearest. patron at Papagayo's has allowed entertainers to convey their erotic, sensual message to patrons sitting beyond that distance. [Silva, McKnight, Wheeler] The only difference between the 6 foot and 8 foot minimum is the loss of some seating. [Ebert] 26. 'Papagayo's has.not complied with the City's four-foot restriction on table and couch dances. Babes has not offered four-foot table dances, either. The table and couch dancing that has occurred at Babes and Papagayo's has been performed from four feet to less than one foot from the patron, and it has included exposure, touching, and sexual contact. It is difficult to determine the extent of contact because of the lighting and proximity of the entertainer and patron. [Ebert, Weisert, McKnight, Kleinknecht, Thibert and Wheeler] 27. Table dancing involves movement by the dancer and the use of space to create a sense of erotic intimacy. The smell and "heat" emanating from a dancer constitute FINDINGS OF FACT AND CONCLUSIONS OF LAW - 9 A:wu.DOC conduct; they may be involuntary. Sexual conduct does not constitute dance. A dancer's movements can be performed at a distance of four feet from the patron's torso and still convey an erotic, sensual message. 'If the dancer is farther away, the patron can see the dancer's entire body and expressive activity. [Daniels] The distance does have some effect on eye contact and language heard over the loud music. 28. Entertainers may sit or stand next to, converse with, and touch patrons without violating an ordinance. 29. Increasing the light in the non-stage areas of an adult cabaret allows patrons to see dancers performing table or couch dances more clearly. It also facilitates detection of improper conduct by managers and police officers. [Bern, Kleinknecht, Covey] 30. Deja Vu-Bellevue's lighting expert conceded that a minimum illumination level of 10-15 lux would be appropriate. Papagayo's has not met even that level, according to test reports compiled by the City using a grid of readings taken on ten-foot centers and testing on March 16, 1994. Papagayo's has chosen recently to employ almost entirely red lights. If some of those lights were interspersed with white light bulbs, the lux readings would be significantly higher. Candles on tables would also affect the reading. [Kildow, Monson; Ex. 41 and 42; Court's site view] 31. The City has a substantial interest in protecting minors that is served by the identification and registration provisions in the adult cabaret ordinance, as well as the City's prohibition of publicly visible nude performances and displays thereof. [Blacker] FINDINGS OF FACT AND CONCLUSIONS OF LAW - 10 w:wa.DOC • 32. The City has a substantial interest in assuring the correct identification of persons working in adult cabarets. It has found that aliases are especially common in that industry and identity cards are easily faked. The licensing requirements in the City's ordinance further its interest in assuring proper identification. [Blacker, Riordan, Hanson, Monson] 33. The City has a substantial interest in deploying its law enforcement resources in an effective manner. These resources are limited, particularly with respect to undercover investigations. Knowing criminal histories and prior license suspensions helps the City to focus its enforcement efforts where violations are more likely to occur. [Hanson, Covey, Riordan, Monson] 34. The City has a substantial interest in detecting and discouraging the. involvement of organized crime in the adult entertainment industry. Such involvement has occurred elsewhere in the country. Persons associated with adult cabarets in the Puget Sound area have operated behind fronts and been convicted of income tax evasion. [Lukens, Riordan, Whitehead, Colacurcio]. There was no evidence to indicate the involvement of organized crime in the plaintiff organizations. 35. The licensing requirements in the City's ordinance, including required disclosures from applicant control persons, further its interest in detecting the involvement of organized crime in adult cabarets. [Riordan] 36. The City has a substantial interest in avoiding the transmission of sexually transmitted diseases and otherwise discouraging public sexual contact. [Lukens] FINDINGS OF FACT AND CONCLUSIONS OF LAW - 11 A _DOC 37. The information that the City's ordinance requires of applicants for adult cabaret licenses, entertainer licenses, and manager licenses is not intimate information. Most of it is public. [Riordan, Monson; Ex. 36 and 37] 38. Since January 1, 1995, the City has issued licenses to 69 adult cabaret entertainers. The City has issued temporary-licenses immediately to these entertainers while their applications were being processed. No entertainer has been denied a license. [Monson] 39. It often takes 14 days to process an application for an entertainer or a manager's license. The City does not delay issuing any license, but rather does so as soon as it is processed or 14 days whichever is sooner. [Monson] 40. The City's license requirements have not deterred adult cabaret owners or entertainers from applying to be licensed. [Bern, Monson] 41. The City does not have discretion as to whether it will issue a license in response to a fully completed application, but must do so. [Riordan, Monson] 42. Neither Ino Ino, Inc. nor Deja Vu-Bellevue, Inc. has any plans to offer.male _ . . .. entertainment. Ino Ino, Inc. representatives had no objection to the City's prohibition of male entertainers or employees appearing in public with their genitals in a discernibly turgid state. [Bern, Ebert] 43. Neither Ino Ino, Inc. nor Deja Vu-Bellevue, Inc. has plans to place any representation or to present any performance that is visible outside their premises displaying the breasts below the top of the areola, the pubic hair, buttocks, genitals, or anus. [Ebert, Bern] FINDINGS OF FACT AND CONCLUSIONS OF LAW - 12 A:UKI.DOC 44. The closing hour mandated by the City's ordinance (2:00 a.m.) is the same as that required by Everett and Federal Way. The City adopted that time because 2:00 a.m. is the closing time for bars, and the City feared that allowing inebriated patrons to enter adult cabarets at that hour would lead to problems. [Bern, Blacker] 45. Although plaintiffs allege that the City's minimum distance and lighting requirements will prevent them from doing business, there is no evidence that they have attempted to conduct business under the requirements. [Ebert, Weisert] 46. There is a direct relationship between the revenue earned by the club and the number of dancers working. If dancers earn less revenue because of fewer patrons and less tips they will not work at that club. This effects the employability of other personnel at the clubs such as waitresses, security people, managers, etc., as well as the rents earned by the club. FINDINGS OF FACT AND CONCLUSIONS OF LAW 13 wMIa.DOC CONCLUSIONS OF LAW 1. Consolidation of the hearing on plaintiffs' application for a preliminary injunction with the trial on the merits of the claims presented is appropriate pursuant to CR 65(a)(2). 2. To the extent that the Court has been asked to resolve in this proceeding fewer than all of the claims raised by the plaintiffs, the Court finds that it is appropriate to enter final judgment with respect to those claims raised and resolved herein. There is no just reason for delay of entry of such judgment under CR 54(b), because.substantial issues in this case are resolved herein and the enforcement activities of the City as they affect plaintiffs require a prompt and final adjudication. The Court hereby directs entry of judgment on those claims. 3. Stage, table, and couch dances are entitled to protection under Article I, section 5 of the Washington State Constitution. JJR. Inc. v. City of Seattle, _ Wn.2d _ (March 23, 1995)__.. .. . 4. The City is entitled to rely on prior studies of other jurisdictions in determining the adverse effects of adult entertainment establishments. Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1985). Alternatively or additionally, the City may demonstrate its need for its ordinances with evidence presented at trial. BSA. Inc. v. King County, 804 F.2d 1104, 1111 (9th Cir. 1986). The City may reasonably rely upon such evidence as relevant to the problems such as sexual contact that the City is seeking to address, even though the evidence is anecdotal and unscientific. There was little evidence as to additional FINDINGS OF FACT AND CONCLUSIONS OF LAW - 14 secondary effects, such as degradation of the neighborhood, drop in property values, or unusual amount of other crime in the area. 5. Allegedly improper legislative motives are irrelevant to the issues presented in this case, because the City has a valid regulatory purpose and its regulations are justified without reference to the content of regulated speech. Renton, 475 U.S. at 48. The lobbying efforts by Washington Together Against Pornography were in no way improper. 6. Plaintiffs have not demonstrated entitlement to a preliminary injunction because there is no clear legal right to a finding that the City's adult cabaret ordinance is unconstitutional, nor a showing that an immediate invasion of protected rights will occur in the absence of injunctive relief. An injunction will not issue in 'a doubtful case. Federal Way Family Physicians, Inc. v. Tacoma Stands Up for Life, 106 Wn.2d 261, 265 (1986). 7. The City's requirement that unclothed dancers and dancers exposed as defined in BCC 5.08.070(A)(1) perform on stage elevated at least eighteen inches from the floor and separated from patrons by a railing and an eight-foot distance, BCC §§ 5.0.8.070(A)(1) & .070(D)(1), is constitutional. Key. Inc. v. Kitsap County, 793 F.2d 1053, 1061-62 (9th Cir. 1986) (upholding 10-foot distance requirement under similar challenge). Apart from a test involving a tall police officer, the City Council considered no evidence or study in implementing the change from 6 feet to 8 feet. 8. The City's requirement that no employee or entertainer perform any dance, performance or exhibition in or about the non-stage area of the adult cabaret unless at a distance of no less than four feet from his or her customer, BCC § 5.08.070(A)(6), is FINDINGS OF FACT AND CONCLUSIONS OF LAW - 15 A:1AKI.DOC constitutional. O'Day v. King Co., 109 Wn.2d 796 (1988) (6-foot distance requirement aimed at keeping entertainer and patron out of reach is constitutional). Neither dancer nor manager should have to worry about proximity as to persons who are not connected to the dance or exhibition. The Court finds no evidence to support a legislative finding that requires distance from other members of the public during a table dance. To preserve'the. constitutionality of this section, the ordinance should be interpreted as so limited. 9. These distance and separation requirements do not regulate expression but rather conduct. Entertainers may perform any non-obscene expressive activity at or beyond the minimum distance. 'Conduct is not protected under either the Washington Constitution, Article 1, section 5, or the First Amendment to the United States Constitution. O'Day, 109 Wn.2d at 809-10. The City has a substantial interest in prohibiting public sexual contact. Everett v. Heim, 71 Wn. App. 392, 396 (1993). Regulation of the proximity between entertainers and patrons in adult cabarets is a reasonable exercise of the City's authority. Id. However, the four.foot distance, if that were the legal standard, is not the least restrictive means as identified per the City Attorney of Bellevue. 10. Because these distance and separation requirements regulate pure conduct, there is no need to engage in an analysis considering the distance and separation requirements as time, place or manner restrictions. O'Day, 109 Wn.2d at 810. Even if such an analysis were undertaken, the City's distance and separation requirements would satisfy the analysis. The City's adult cabaret ordinances are designed to serve substantial governmental interests. City of Renton,. 475 U.S. at 50. The distance and separation requirements allow FINDINGS OF FACT AND CONCLUSIONS OF LAW - 16 A:1AKI.DOC communication at the prescribed distance and do not significantly impair the ability of dancers to engage in protected expression. Id.; Key, 793 F.2d at 1061-62. 11. The City's adult cabaret ordinance is not generally unconstitutionally overbroad. BCC ch. 5.08 permits the full gamut of potentially expressive conduct, subject only to the requirements (1) that the expression not be obscene, (2) that entertainers not commit specified sexual acts, and (3) that licensees comply with conduct regulations such as minimum distance and lighting requirements. The sexual acts of entertainers forbidden by the ordinance are pure, unprotected conduct. Chisman, 33 Wn. App. at 813; O'Day, 109 Wn.2d at 807. BCC 5.08.070A(5) must be construed to permit simulated sexual acts as long as they are not obscene. Because the City's ordinance does not regulate constitutionally protected speech or expressive conduct, this Court need not examine whether the ordinance prohibits a real and substantial amount of protected conduct in contrast to its plainly legitimate sweep. State v. Halstien, 122 Wn.2d 109, 122-23 (1993). 12. The,detnition:of "obscene.5 .the ord;.r.+ance,..BCC.§ 5.07.080(G), is not overbroad. The definition properly requires a determination that material or activity is "patently offensive" to be made according to "community standards." State v. Reece, 110 Wn.2d 766, 771-73 (1988). 13. The regulation of obscenity is within the City's powers and has not been preempted by the State of Washington. •Washington Constitution Art. 11, § 11; Tacoma v. Luvene, 118 Wn.2d 826, 833 (1992). FINDINGS OF FACT AND CONCLUSIONS OF LAW - 17 A:1AKI.DOC 14. The provisions of the City's adult cabaret ordinance are not unconstitutionally vague. Plaintiffs have not met their burden of proving beyond a reasonable doubt their allegations of vagueness. Halstien, 122 Wn.2d at 118. Specifically, plaintiffs have not demonstrated that any provision of the ordinance is framed in terms so vague that persons of common intelligence must necessarily guess at their meaning and differ as to their application. O'Day, 109 Wn.2d at 810. 15. BCC §§ 5.08.040(B)(1) and 5.08.010(D) are not unconstitutionally vague. "Applicant control person" must be construed in accordance with Washington law, as a person with a significant management interest similar to an owner or manager. World Wide Video v, Tukwila, 117 Wn.2d 382, 391-92 (1991). 16. BCC § 5.08.070(A)(5) is not unconstitutionally vague. The prohibition of the performance of "actual or simulated acts of sexual conduct" is subject to the exception for nonobscene expression, and therefore gives plaintiffs sufficient notice of what conduct is prohibited,- O'Day, .109.Wn.2d at-:811. - - - . 17. BCC § 5.08.070(A)(6) is not unconstitutionally vague. Persons of common intelligence do not need to guess at the meaning of "four feet." The four-foot distance requirement is measured torso to torso, from the dancer to the customer. 18. The City's minimum illumination requirement for adult cabarets is constitutional. The illumination requirement does not significantly affect expression. The illumination requirement regulates only conduct and is reasonably related to a legitimate City purpose. World Wide Video, 117 Wn.2d•at 392. The requirement is based upon a need for FINDINGS OF FACT AND CONCLUSIONS OF LAW - 18 A:UKI.DOC visibility in law enforcement which need not be proven absolutely. In devising a legislative solution, the City has broad latitude to regulate, and a court will not substitute its judgment for that of a legislative body. Adult Entertainment v. Pierce Co., 57 Wn. App. 435, 439 (1990). The ordinance does not require 30 lux at all points within the public areas. 19. The minimum illumination requirement is also constitutional even if analyzed as a time, place, or manner restriction. The illumination requirement is content neutral, narrowly tailored to serve a substantial state interest, and leaves open ample alternative channels of communication. Renton, 475 U.S. 41, 47. In terms of the analogous test established under United States v. O'Brien, 391 U.S. 367 (1968), the requirement is within the constitutional power of the government; it furthers an important governmental interest; that interest is unrelated to the suppression of free expression; and the incidental restriction on first amendment freedoms is no greater than is essential to the furtherance of that interest- -i.e., the requirement "promotes a substantial government interest that would be achieved less effectively absent the regulation." Key, 793 F..2d at 1059 n.3, quoting United States v. Albertini, 472 U.S. 675, 689 (1985). The plaintiffs have not met their burden in showing that the lighting requirement interferes with expression or that it is unrelated to a substantial governmental interest. 20. The City's licensing requirements, BCC §§ 5.08.020, .030, .040, .050 and .060, are valid. 21. The City's licensing requirements do not raise concerns under Washington Constitution article 1, § 5 or the First Amendment to the United States Constitution, because FINDINGS OF FACT AND CONCLUSIONS OF LAW - 19 A AXLDOC they do not inhibit the plaintiffs' ability.or inclination to engage in protected expression. Kev, 793 F.2d at 1060. 22. The 14-clay waiting period for an adult cabaret manager's license is neither unreasonable nor an impermissible prior restraint. Worldwide Video, 117 Wn.2d at 392-93. Managers are not engaged in protected expression activities. 23. There is no evidence that the licenses required to operate, manage, or perform in an adult cabaret are unduly difficult to obtain or that persons have been discouraged from seeking them. 24. The ordinance provides adequate standards to guide City officials in processing license applications. 25. The disclosure requirements of the ordinance directly relate to the City's substantial interest in protecting.public health, safety and welfare by deploying law enforcement forces to mitigate the secondary impacts associated with adult entertainment e tablis_hments-,---World Wide Video;.117 Wn.2d at 391-92; TK's .'ideo. Inc. v. Denton,, County, 24 F.3d 705, 709 (5th Cir. 1994). 26. The City is entitled to ask all license applicants about their criminal convictions in the past five years, and to ask all cabaret license applicants about their recent employment history. This information facilitates record checks, enables the City to deploy enforcement resources in the most effective manner, and advances the City's interest in preventing the infiltration of organized crime into adult cabarets. Bayside Enterprises. Inc. v. Carson, 470 F. Supp. 1140, 1148 (M.D. Fla..1979); Key, 793 F.2d at 1061. FINDINGS OF FACT AND CONCLUSIONS OF LAW - 20 A:\AKI.DOC 27. , The disclosure requirement in BCC § 5.08.040 do not violate plaintiffs' privacy rights. Disclosure of other licenses, business history, recent criminal convictions and employment history does not invade the realm of intimate personal information. Halstien, 122 Wn.2d at 125 n.8. Plaintiffs' privacy interest in confidentiality, to the extent such an interest exists at all, is not a fundamental right. O'Hartigan v. Dept. of Personnel, 118 Wn.2d 111, 117 (1991). The interests of the City are legitimate, and the City has demonstrated that its disclosure requirements are designed to achieve those interests. Id. at 118. The questions asked of licensees are no more intrusive than reasonably necessary to achieve the City's legitimate interests. 28. The plaintiffs have not challenged the City's license fees, found in BCC § 5.08.050. 29. BCC § 5.08.060 is not a prior restraint. The City may constitutionally require licensing of adult cabarets, adult cabaret managers, and adult cabaret entertainers, may constitutionally prohibit adult cabarets and adult cabaret managers from operating without a... license, whether or not judicial review is pending, and may constitutionally require disappointed applicants to be responsible for initiating judicial review of any denial of a license. Key, 793 F.2d at 1059; TK's Video, 24 F.3d at 708-09. The ordinance provides for prompt final judicial review. 30. The adult cabaret ordinances do not violate constitutional guarantees of equal protection. Plaintiffs' equal protection claim is based on the City's failure to impose the same limitations on entertainers in other,establishments that it imposes on entertainers in FINDINGS OF FACT AND CONCLUSIONS OF LAW - 21 A:wci.DOC adult cabarets. The City is not prevented by the First,or Fourteenth Amendments to the United States Constitution, or by Article 1 § 5 of the Washington Constitution, from classifying and regulating adult-oriented establishments differently from other places of entertainment. O'Day, 109 Wn.2d at 813-15; Heim, 71 Wn. App. at 399-400; Broadway Books. Inc. v. Roberts, 642 F. Supp. 486, 490 (E.D. Tenn. 1986). 31. The City's classification satisfies rational basis scrutiny. The ordinance applies to all entertainers and employees in adult cabarets. The City has demonstrated a reasonable basis for distinguishing adult cabarets from other places of public entertainment: the secondary effects associated with adult cabarets, including on premises sexual contact, are not associated with other entertainment establishments. The City's classification bears a rational relationship to the purpose of the ordinance in protecting the public health and safety of the City. Heim, 71 Wn. App. at 399-400; Young v. American Mini Theaters, 427 U.S. at 70-71. 32. The prohibition on the use of nude persons or images of nude persons outside adult cabarets, BCC § 5.08.070(B)(2), is unconstitutional because it'is not limited to that which is obscene or harmful to minors, nor mentioned in 5.08.070(F). 33. Section 5.08.070(F) is constitutional because it permits non-obscene expression including simulated acts. (Ordinance No. 4645.) 34. The tipping restrictions contained in BCC § 5.08.070(A)(7) are constitutional and are not unconstitutional time, place, and manner restrictions. Kev, 793 F.2d at 1061-62. FINDINGS OF FACT AND CONCLUSIONS OF LAW - 22 A:wa.DOC 35. The provision of the City's ordinance requiring that adult cabarets be closed between 2:00 a.m. and 10:00 a.m., BCC § 5.08.070(E), is not an unconstitutional time, place, and manner restriction. Mitchell v. Comm'n on Adult Entertainment Establishments, 10 F.3d 123, 131-39 (3d Cir. 1993). The closing hours requirement is a content-neutral restriction, and it promotes a substantial government interest that would be achieved less effectively absent the regulation. 36. Valid regulations may have an adverse economic impact on a business or occupation, but that does not limit a government's power to regulate. B(lser v. LiQuor Control Board, 90 Wn.2d 223, 230, (1978). None of the plaintiffs are excluded from a business or,occupation or prevented from charging a fee for services. 37. The availability of other civil, criminal, or licensing remedies does not affect the power of the city council to legislate in this area, or the constitutionality of this ordinance. 38. Plaintiffs are.denied a preliminary.or permanent injunction. BCC 5.08.150 contains a severability clause for the limited portion of the ordinance found to be unconstitutional. The temporary restraining order entered by this Court on February 24, 1995, is hereby dissolved. ENTERED this")-2Gday of April, 1995. Ec /. l ge Carol Schapira King County Superior Court FINDINGS OF FACT AND CONCLUSIONS OF LAW - 23 A:WCI.DOC FEB, 09 '96 . 1i:02AM PROS ATTY METRO SECT 296-04 J't . • 1 UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF WASHINGTON 3 AT SEATTLE 4 5 DEJA V'U-EV'ERETT-FEDERAL WAY, ) INC. , a Washington ) RECEIVED 6 corporation, et al. , ) n r� J 7 Plaintiffs, 1 "''' FEDERAL WAY Case C95--1272Z CITY ATTORNEY 9 CITY OF FEDERAL WAY., ) • 10 Defendant. ij ir4 11 12 13 RULING ON MOTIONS FOR SUMMARY JUDGMENT 14 on January 5, 1996, by the Honorable Thomas S. Zilly, United 15 States District Judge, at the United States Courthouse, Seattle, 16 Washington- 17 . 18 19 20 AppearaXces of Counsel: JACK BURNS On Behalf of Plaintiff 21 Attorney at Law On Behalf of Defendant: STEPHEN SMITH 22 Attorney at Law 23 24 Sue Palmerton 25 Official Court Reporter (206) 553-1899 • 1 QT rc•a 'a1 1 1 Hq4 'R rl 4 WH=:F,Gt 9f,, WE R-1 a FEB 29 '96 11:02AM PROS ATTY METRO SECT 296-0420 . P.3/16 2 • 1 • Seattle, Washington; Friday, January 5, 1996 2 THE COURT: Thank you. Well, as I indicated at the 3 beginning of the hearing, this matter comes before the Court on 4 cross motions for summary judgment. Docket number 55 is the 5 defendants motion for summary judgment and the plaintiffs' cross 6 motion for partial summary judgment is docket number 63. 7 An issue not briefed but appropriately raised by counsel is 8 whether or not this Court should stay this proceeding and await a 9. decision by the Washington Supreme Court or the court of appeals, 10 depending on where the Bellevue litigation ultimately is ' resolved 11 on the state grounds. 12 And Mr. Burns makes a strong argument that the legal issues 13 are essentially the same all before the State Supreme Court or 14 the court of appeals if the Supreme Court does not accept review. 15 They're likely dispositive and this Court should stay. Although 16 it's inviting, the Court declines to stay this action on those • 17 grounds. • 18 I do not intend today to decide the state law constitutional 19 issues. I believe those are appropriately decided in the state 20 court system. I also agree.with Mr. Burns that those state law 21 constitutional issues perhaps are broader than the cases having 22 been decided in the Ninth Circuit dealing.with some of these same 23 issues. • - 24 But I believe the parties have briefed these issues, the 25 motions have been presented. The Court has undertaken the 711 1 I-17C C K2 I -I I.II-ICC.CM Qa: hT CI7.1 , FEE,09 '96 11:02AM PROS RTTY METRO SECT 296-0420' P,4/1. 3 1 careful study of the record, including all of the cases that have 2 been' cited. And I believe that, based on the record before us, 3 the defendant Federal Way is entitled to have an answer as well 4 as the plaintiffs in connection with the issues that have been 5 presented on a federal basis. . 6 Having said that, I am going to deny the plaintiffs' motion 7 for partial summary judgment and I'm going to grant the city's 8 motion for summary judgment on two basis. First, on the merits. 9 Well, ' let me deal with the collateral ,estoppel issue first. 10 Collateral estoppel is a legal concept that promotes the policy 11 of ending disputes by preventing the relitigation of issues or 12 determinative facts after a party has had a fair and full 13 opportunity to litigate those. 14 Because this Court is essentially looking at the collateral 15 estoppel effect of certain litigation between Deja Vu, a sister 16 corporation, litigating against the City of Bellevue, this Court 17 must apply Washington law in determining whether and to what 16 extent there is collateral estoppel as a result of .that 19 litigation. • 20 That litigation involved approximately six days of trial, 21 extensive findings by the trial judge. Mr. Burns has admitted in 22 his statement before this Court quite candidly that the legal 23 issues are essentially the same. The issues there are •likely to 24 be dispositive. • 25 So, the question is do we have the necessary elements in. FEE 09 '96 11:02AM PROS ATTY METRO SECT 296-0420 P.5�16= 4 1 order to have collateral estoppel? Before we get to the law, 2 let' s take a look at the facts. 3 It is clear that there is a sufficient identity of interest 4 between Deja Vu-Bellevue and Deja Vu-Federal Way. Rhonda 5 McCormack is .the president of both corporations as well as the 6 sole officer and sole director of both entities. The daily 7 operations of both clubs includes bookkeeping, purchasing and 8 general operations handled by Consolidated Bookkeeping and 9 Management Services. Consolidated provides the umbrella under 10 which both corporations operate. 11 Both entities' decisions about whether to engage in 12 litigation are made by the same person: Rhonda McCormack. The ' 13 two entities have a common shareholder who owns 50 percent of 14 each corporation. Both entities have the same headquarters. 15 They both have the same registered agent, Mr_ Burns, and 16 obviously the same lawyer. 17 I am satisfied that those facts, which are undisputed,. • 118 satisfy the common entity and establish the privity necessary to 19 require that collateral estoppel be in effect. 20 One step removed from that is the• plaintiff Patterson. She • 21 is the manager of Deja Vu-Federal Way. She has been an employee 22 of Consolidated Bookkeeping the entire time. She receives a 23 salary from Consolidated, is paid by checks signed by Mr. Bern, 24 KERN. 25 Consolidated controls this litigation. She was not aware .ter ..,. i 71 I 1 u1C O )O J J 1.11-10(`.Gd QG 4eT Q7 J FER09 '96 11:03AM PROS ATTY METRO SECT 296-042b P.7/16 6 1 We have the .Thomas case which dealt with additional 2 defendants being named and whether or not that would impact or 3 affect or preclude collateral estoppel. And in both instances, 4 the Washington courts have said that collateral estoppel can 5 still be applied- 6 I'm satisfied "that under the Garcia v. Wilson case and the 7 Thomas case, all. of the factors necessary to establish collateral 8 estoppel are in effect and that the necessary privity does exist 9 between' each of the plaintiffs and Deja Vu-Bellevue litigation. 10 and Deja Vu-Bellevue, an entity, that collateral 'estoppel .should 11 be held to be in effect. 12 I want to also deal with the issues on merits. It is clear 13 that erotic dancing is a protected expression under the First 14 Amendment to the United States Constitution. That is really not 15 challenged by the city. That is the teaching of the rev, Inc. V. 16 Kitsap County case, 793 F.2d 1053 (9th Cir. 1986) . 17 But to say that something is protected does not guarantee the 18 right at all times and places or in any manner. That is also the 19 "teaching of the Key case. 2a where an ordinance does not ban the activity altogether but ' 21 merely places restrictions on the circumstances, the ordinance is 22 properly analyzed as a time, place and manner regulation. That 23 is the teaching of the Renton v. PLavtilqe Theatreqj Inc. case. _ 24 It' s interesting to note that most of the controlling law is 25 arising out of the Western District of Washington. I think the OT i J •J 71 I I I-17C C )Q J J I.INQC•GIa Q . i7T CM.1 ' FEB p9 '96 11=03AM PROS A1TY.METRO 'SECT 296-0420 P.Bi1Cr— ' • 7 1 Renton case was a Judge McGovern case. The Kev case and the BSA 2 case were Judge Rothstein cases. 3 But nevertheless, the Renton court teaches that a time, place 4 or manner. restriction must be justified without reference to the 5 content of the regulated speech, be narrowly tailored to serve a 6 significant or substantial governmental interest and preserve 7 ample alternative means of communications. In Renton, of course, B. the Supreme Court examined the ordinance that placed restrictions 9 on how close pornograhic movie theaters could be to residential' 10 neighborhoods. 11 Once the Court determines that a regulation is content 12 neutral, and I believe the ordinances here are content neutral, • 1.3 the appropriate inquiry is whether the ordinance is designed to • 14 serve a substantial governmental interest and allows for • 15 reasonable alternative avenues of communication. The city must 16 produce evidence, obviously, before an act or an ordinance that 17 that is the case:• 18 The stated purpose here of the Federal Way ordinances is to 19 alleviate undesirable social problems that they contend accompany 20 nude dancing or the dancing here at issue and avoid prohibited 21 sexual contact between dancers and customers. 22 At the public hearing on the proposed ordinance, evidence of 23 .criminal violations in and around the nude dancing establishments 24 was presented, along with testimony, that a greater distance 25 between dancer and customers were necessary. . oT ,o• I - _ 7'11 1 I-17C C f0 J J I II-IOC-CM OC F,T G7 J FEB 09 '96 11:03RM PROS RTTY METRO SECT 296-0420` P.9/16. 8 1 The Court concludes that the ordinance as a whole .is content 2 neutral because it is justified without reference to the content 3 of the regulated speech under the Renton decision. 4 Plaintiff challenges as unconstitutional two specific 5 requirements. One, the distance requirements and, second, the 6 disclosure requirements. There hasn't been much talk about the 7 disclosure requirements today during oral argument, but the 8 briefs have focused on both of those. 9 Now, with respect to the distance requirements, the plaintiff '30 contends that the ordinance is unconstitutional because the 11 ordinance essentially prohibits table. dancing and impermissibly 12 affects the expression by requiring the dances not occurring on 13 stage to be at least four feet from the customers and the stage 14 be at least eight feet from the customers and 18 inches high. 15 The city does not prohibit table dancing, it only regulates the 16 distance the dancer must be from the customer. 17 The purpose 'of the distance requirements is set •forth in the 18 ordinance and the proximity between entertainers and ,patrons 19 during adult entertainment performances can facilitate-sexual 20 contact, prostitution and related crimes. . 21 Further, these regulations, in my opinion, do not 22 significantly burden First Amendment rights. It is true that the 23 Ninth Circuit in Key said that while a dancer's erotic message _ _ 24 may be slightly less effective from ten feet, the ability to - . • 25 engage in protected expression is not significantly impaired. • "3"111d3S S '8 d A Wb9S:60 96, Pt Hai • FEB09 '96 11:03AM PROS ATTY METRO SECT 296-0420 — "P.10i1- 9 1 Counsel invites this Court to look at, which I have, the. 2 declarations that have been furnished and invites the Court to 3 conclude that there is at least a factual issue as to whether or 4 not these distances not only impair, but exclude or eliminate the 5 type of dancing here sought to be regulated. The Court declines 6 that invitation. 7 The evidence is that the erotic dancing or the table dancing, B all of these activities has continued. The plaintiff alleges, 9 and perhaps appropriately so, that there is less dancing, less. 10 income and the like, but the form of expression continues.. And 11 the Court believes that there is no material issue of fact there 12 that would preclude me from ruling on ,the merits on these 13 constitutional issues at this time. (I 14 • The Court concludes that the regulations ate under federal 15 law reasonable as to time, place and manner restrictions and that 16 they may burden the expression, but they do not eliminate it. 17 The licensing requirements require the owners, managers or 18 dancers to provide information as to part of the licensing 19 application. One of the sections requires a manager or 20 entertainer's license -- states 'it must be issued within 14 days 21 of application and an establishment license must be issued within 22 30 days_ 23 Now, I think it is important to note these are not ordinances 24 that say that the city does not have to issue its license within 25 14 days for the manager or entertainer. or 30 days. It only says PIT ,MT• 1 7'•1 I 1 1J7C C )O J J I.IIJ I C.CII. MC hT C7 J FEB 09 '9 1:0 AM PROS A Y METRO SECT 296-0420 P.11/16 10 • 1 that it must within that period issue these licenses. 2 Part of the government's police power is the licensing of 3 various activities involving conduct protected by First Amendment 4 'rights. The ET2 decision in the Ninth Circuit, which Mr. Burns 5 was one of the lawyers for, teaches us that. 6 In that case, the Kev court did, in fact, approve a five-day 7 Window for the operator's license. It held that the five-day 8 delay for the dancer's license was unconstitutional, but that is 9 not an issue here. 10 Other courts, notably the case out of the Fifth Circuit which 11 is Video. Inc. v. Benton Co. , 24 F.3d 705 at 709, recognized 12 and approved, x think, a 30-day window where the county in that 13 case was required to take certain action on these applications. 14 I am satisfied that under existing law in the Ninth Circuit, 15 particularly the Enz case, that the regulations are not so 16 burdensome •as to discourage the activities. There is no 17 suggestion by the plaintiffs the licenses would be so difficult 18 to obtain -that this would discourage participation. I am 19 satisfied that the time limitations that had been *incorporated .20 into the ordinance meet any federal constitutional challenge. 21 ,For the reasons stated, I am going to direct the clerk to 22 enter judgment dismissing this case on the merits, granting the 23 defendant's motion for summary judgment. And that judgment will 24 be entered based on my oral opinion stated here on the record. I 25 ,will not be issuing another formal written order because I hope • �r .•'r• I 1"'1 I I u1r r f� 1 _I I ILJ 1r.LrA Or' 4-.T Q7 J , FEE •09'96 11:04AM PROS ATTY METRO SECT 296-0420 P.12/16 11 1 that I have explained my reasoning here. 2 I want to thank the lawyers on both sides for the briefing. 3 The issues are before us and before the communities. I think 4 that, as the Ninth Circuit recently said in connection with 5 upholding my earlier ruling on preliminary injunction, I think 6 these issues under federal law are clear and ,not seriously to be 7 debated. 8 This Court does not make a ruling with respect to the state 9 court constitutional claims. As I indicated at the beginning, I 10 think those claims should appropriately be decided by the state 11 court. But I am dismissing the case and all of the issues' under 12 the state court because of the collateral estoppel ruling. 13 Questions? 14 MR. BURNS: Yes, Your Honor. 'I take it your order is 15 that the state claims are dismissed without prejudice? 16 THE COURT: State constitutional claims. I'm not going 17 to -- well, I think under the collateral estoppel, I can dismiss 18 them with prejudice. • But that is the sole basis for my ' 19 dismissing those. 20 I am not ruling on the merits, but ruling that the Bellevue 21 litigation is collateral estoppel as to these three. plaintiffs, 22 and that is a basis for a dismissal with prejudice of the state 23 claims- So, we will .attempt in the judgment to make that 24 distinction. Because I do think that -- well, that is my ruling. 25 MR. BURNS: Your Honor, perhaps, if I may, I'd like to oT i7T•J 'a11 IHNC C '9 4 4 WH)C.AM i7T. P7'l FEB 09 '96 11:04AM PROS A1`TY METRO SECT c96-042er P.13/16-77- 12 • 1 discuss this issue. I understand your ruling and I'm not 2 suggesting that it be •changed, just slightly modified. 3 It seems to me that you want to bring this litigation to an 4 end in •federal court with respect to the federal claims and what 5 happens may happen with respect to the state claims. The problem 6 that I foresee is that if you dismiss the state claims with 7 prejudice on the basis of the collateral estoppel, our only 8 remedy -- and when I say our, I mean Deja Vu-Everett and Federal 9 Way -- is to appeal your decision on the basis that collateral 10 estoppel would apply. And let's assume -- 11 THE COURT: Well, in the alternative, let me say that I 12 would not decide the state constitutional law issues in any 13 event. I would abstain and dismiss in the alternative because I 14 think; as I've said a couple of times, I think those issues 15 should be decided by the state court. 16 MR. BURNS: And what I want to be sure about is that 17 let's assume we don't appeal and we ultimately -- Bellevue 18 ultimately prevails in the state court. What I want to be sure 19 is that Deja Vu-Everett-Federal Way, based on a prevailing Deja 20 Vu-Bellevue would have the right to then assert a state claim and 21 not be precluded from asserting a state claim. Since I 22 understand that you are not deciding the state issues, I think 23 that would be appropriate. _ 24 THE COURT: Well, if I dismiss the state constitutional 25 law issues solely on the grounds that it' s collaterally estopped oT isT•J 71 I I I-mc c Kt .1 J mw,c-am QC.. +,T c•a 4 FEB• 09 '96 11:04AM PROS ATTY METRO SECT 296-0420- P.14/16. 13 1 and dismiss it with prejudice, I think the record is clear that 2 I 'm not ruling on the merits on the state constitutional law 3' issues, but I am dismissing this entire case. 4 Now, if you don't appeal or if it's affirmed on appeal and 5 you win in the Bellevue litigation, it seems to me you have, state 6 constitutional law issues that you're still entitled to litigate, 7 but you've got to do it in state court. 8 MR. BURNS: I appreciate that and I would do it in state 9 Court. But I just want to be clear. And I don't think your 10 intention is to preclude Deja Vu-Federal Way from asserting state 11 law claims if the Bellevue litigation is reversed, but I'm not 12 sure what the practical effect of your order would have if we do 13 not appeal. Because it seems to me that if we do not appeal and 14 you've collaterally estopped us, we're finished forever. And I 15 raise that as a concern. 16 THE COURT: I see what you mean. Mr. Smith? • 17 MR. SMITH: Well, Your Honor, I don't think that this is 18 an appropriate time or place to determine what may happen a year 19 or two down the road. If substantive law is that Mr. Burns is 20 out of luck, at that point then that is what the law is. If the 21 law is that he gets a chance to reraise the question, that is 22 fine. But that should not hamper the decision here today and I 23 don't think it should be the subject of negotiation at this point 24 either. 25 THE COURT: Well, just bear with me. It may save you an OT .4..T •J 77 I I MI7C C V4 _I J I.IF-IS]C•CG QC.. 4,T f77 J FEB. 09 '96 1,1:05AM PROS ATTY METRO SECT 296-0420 • P.15/16 ° 14 1 appeal, defending an appeal. What would be the effect of his not 2 appealing my order on the collateral estoppel? Would he be . 3 precluded, then, from litigating on behalf of his client Deja 4 Vu-Federal Way a claim under state constitutional law assuming 5 there were no -- well, would he-- 6 MR. SMITH: I think that's correct. And, Your Honor, 7 whether or not I avoid appeal is irrelevant. I can assure you • 8 that there will bean appeal and we're ready to meet that 9 appeal. There is always an appeal from Mr. Burns. And the fact 10 that he may or may not appeal is something I 'don't take any 11 notice of. 12 Whatever the substantive law is as to the legal effect of 13 your ruling, we are willing to live with that. And I think it's 14 appropriate to make the ruling and to move on. 15 THE COURT: All right. Well, I've made my ruling. I 16 think I've clearly indicated on the record what that is. We will 17 enter a judgment. And the parties can take whatever action they 19 deem appropriate as a result of my ruling. I want to thank the • 19 lawyers for the briefing and the argument today. •1t's-been 20 helpful and we'll be in recess. 21 (At 11.50, court was in recess. ) 22 23 24 25 _ ' t••T iP^T • 1 711 I L17C C )O J J I.11-IQC•'•CIA CC fiT Q7 J FEE 9 '96 11=05AM P.16/16 'PROS ATTY METRO SECT 296-0420 15 • 1 CERTIFICATE • 2 3 4 ' 5 I, Susan Palmerton, court reporter for the United States 6 District Court in the Western District of Washington at 7 Seattle, was present in court during the foregoing matter and 8 reported said proceedings stenographically. 9 10 I futher certify that thereafter, I, Susan Palmerton, have 11 caused said stenographic notes to be transcribed via computer, 12 and that the foregoing pages are a true and accurate 13 transcription to the best of my abillity. 14, 15 Dated this 19th ,day of January, 1996. - 16 • 17 18 Susan Palmerton 19 ' 20 21 22 23 24 25 or nor• "11I I H7R S nt ,-I 4 LiHRq:RG1 9F,, bt f{R a • f . I FOSTER PEPPER & SHEFELMAN A Law Partnership Including Professional Service Corporations 1111 Third Avenue, Suite 3400 Seattle, WA 98101 (2061 447-4400 FAX (206) 447-9700 FACSIMILE COVER SHEET February 14, 1996 VOICE CON- rn FAX# CONTACT FIRM Larry Warren 206-255-5474 206-255-8678 • From: Brian Holtzclaw Direct Dial #: 447-7890 Attachment(s): Ruling on Motions for S/J Message: Larry: Here is Judge Zilly's oral decision in the Federal Way litigation that we discussed last week. I am having the documents requested copied and sent to you. We are in the process of copying the videotapes and will send those shortly. Pages including this cover page: 17 Return To/Location: L.Odell /33-01 Hard Copy to Follow?: No User & Client/Matter #: 841/74136-4 IF YOU HAVE ANY QUESTIONS REGARDING THE TRANSMISSION OF THIS FAX,PLEASE CONTACT THE FAX DEPARTMENT AT: (206) 447-2903 THE INFORMATION CONTAINED IN THIS FACSIMILE COMMUNICATION IS PRIVILEGED AND/OR CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF EACH INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS COVER PAGE IS NOT AN INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION OR THE INFORMATION CONTAINED IN THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THIS FACSIMILE TO US AT THE ABOVE ADDRESS VIA THE U.S.POSTAL SERVICE. THANK YOU. enr .T• 711 11J7C C b J J 11We. .G( OC 4-3T a-J FOSTER PEPPER & SHEFELMAN A Law. Partnership Including Professional Service Corporations 1111 Third Avenue, Suite 3400 Seattle, WA 98101 (206) 447-4400 FAX (206) 447-9700 FACSIMILE COVER SHEET February 14, 1996 VOICE CON- Ti1 fAX# CONTACT FIRM Larry Warren 206-255-5474 206-255-8678 From: Brian Holtzclaw Direct Dial #: 447-7890 Attachment(s): Ruling on Motions for S/J Message: Larry: Here is Judge Zilly's oral decision in the Federal Way litigation that we discussed last week. I am having the documents requested copied and sent to you. We are in the process of copying the videotapes and will send those shortly. Pages including this cover page: 17 Return To/Location: L.0de11 /33-01 Hard Copy to Follow?: No User & Client/Matter #: 841/74136-4 IF YOU HAVE ANY QUESTIONS REGARDING THE TRANSMISSION OF THIS FAX,PLEASE CONTACT THE FAX DEPARTMENT AT: (206) 447-2903 THE INFORMATION CONTAINED IN THIS FACSIMILE COMMUNICATION IS PRIVILEGED AND/OR CONFIDENTIAL INFORMATION INTENDED ONLY FOR THE USE OF EACH INDIVIDUAL OR ENTITY NAMED ABOVE. IF THE READER OF THIS COVER PAGE IS NOT AN INTENDED RECIPIENT,YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION OR THE INFORMATION CONTAINED IN THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY TELEPHONE AND RETURN THIS FACSIMILE TO US AT THE ABOVE ADDRESS VIA THE U.S.POSTAL SERVICE. THANK YOU. oT i7•_J 711 I N7C C V .-I .1 I.11-ICC•zr Q Z. 47T G7.1 1104 804 FEDERAL REPORTER 2d SERIES U� BSA, iNC. v. KING COUNTY 1105 Ca.as 804 F2d 1 is(91h Clr.19as1 The Board's decision in Iron Workers E. Tanner, JJ., enjoined enforcement of ?? 4. Constitutional Law 4.'90.4(2) characterized as nonexpressive, as they Local 118 as to Butler is enforced; the portions of all three ordinances. On con- Prohibition of category of g ry protected would be personally threatened with prose petition for review in Knaeerna is granted solidated appeal, the Court of Appeals, expression,including that which is sexually cution should ordinance be upheld. U.S. and the matter remanded to the Board for Poole, Circuit J., held that: (1) even if explicit, can be upheld only where it fur- C.A.Const.Amend. 1. computation of back pay consistent with county had established substantial interest thers substantial governmental interest this opinion. in reducing burden on law enforcement that is unrelated to suppression of free 9. Constitutional Law 4e=48(4) through showing that topless dancing expression and where governmental inter- Affirmative defense to ordinances pro- w caused illegal activity, it had not shown est could not be served bymeans that is hibiting nudity or other public exposure o 110 N O NSYSTEM that interest could not be achieved byless less intrusive on First Amendment activity. was invalid; defense impermissibly shifted intrusive means; (2) interest in banning U.S.C.A. Const.Amend. 1. burden of proving that activity did not ap- nude performances that were morally of- 5. Constitutional Law 4.40(1) peal to prurient interests from county, fensive to some was not legitimate state Regulation which places substantial re- which had burden of proving that activity interest; (3) owners and operators had striction on free expression is subject to was obscene and could be prohibited. U.S. standing to raise overbreadth challenge, C.A. Const.Amend. 1. BSA, INC., a Washington corporation, and two of ordinances were substantially strict scrutiny. U.S.C.A. Const.Amend. 1. Plaintiff/Appellant, overbroad; (4) requirement of third ordi- 6. Constitutional Law 4=90.4(5) 10. Constitutional Law 4.40.4(5) v. nance that all nude entertainment be per- County ordinance imposing ban on Ordinances were substantially over- KING COUNTY, et al., formed certain distance from nearest pa- nude barroom dancing violated First broad,where they prohibited nude barroom Defendants/Appellees, tron was valid place or manner restriction; Amendment, notwithstanding assertion dancing but protected nude dancin(5)party who had not been able to obtain that "soda pop" topless dancing clubs g with Ronald CHASE, Plaintiff/Appellee, injunction against major provisions of one caused and encouraged illicit activities such substantial expression of story, theme, or ordinance was not "prevailing party" enti- as prostitution, narcotics, and violence; ideas and nudity connected with drama, • l V. science,education,or athletic locker rooms; PIERCE COUNTY, et al., tied attorneys fees; and (6)party who even if causation of illegal activity had had obtained injunction against enforce- been shown and substantial interest in re- restrictions imposed total ban on some • Defendants/Appellants, ment of three of eight sections of ordinance duced burden on law enforcement thereby types of dancing and left nude modeling it had expressly challenged was entitled to established,countyhad not shown that in- for artists and models in fashion shows SUGARS, INC., P Y g ro , andunprotected, there was no readily aP ed because district court might have award- were less intrusive on protected First parent construction that would allow ordi- v. ed fees for claims on which party did not Amendment activity, such as zoning, oper- nances to be applied in constitutional man- SNOHOMISH COUNTY, et al.. prevail. ating hour limits, licensing fees, and dis- ner. U.S.C.A. Const.Amend. 1. Defendants/Appellants/Grose-Appellees. Affirmed and remanded tance requirements. U.S.C.A. Const. 11. Constitutional Law 4a90.4(5) Nos. 83-3991, 83-3999 to 83-4001 Amend. 1. and 83-4310. 7. Constitutional Law 4=90.4(5) Ordinance imposing requirement that 1. Constitutional Law 4=90.4(5) all nude entertainment be performed on United States Court of Appeals, Barroom nude dancing can be expres- Ban on barroom topless dancing, pur- stage 18 inches high and six feet from Ninth Circuit sive activity entitled to First Amendment portedly enacted to discourage prostitution nearest patron did not violate First Amend- protection, and nudityalone is not suffi- and other illegal activity and to protect and Submitted June 5, 1984. P business and residential communities, vio- ment; even if distance requirement did bur- Arguedcient to make that dancing legally obscene. laced First Amendment; county's over- den protected expression,it was valid lace No. 83-4000 Resubmitted Sept. 3, 1984. p U.S.C.A. Const.Amend. 1. riding purpose in enactingordinance was to or manner regulation in that it furthered Decided Nov. 20, 1986. 2. Constitutional Law 4.90.4(5) exclude what some found to be morally significant state interest in curtailing pub- Ordinances which prohibited common offensive and was therefore directly relat- he sexual contact and illegal touching be barroom nude dancing and other nonex- suppressiontween performers and patrons by keeping Owners and operators of adult enter of free expression,coun- tainment businesses that featured live top pressive nudity without requiring that pro- ty had less restrictive means of serving nude entertainers just out of reach of near- lesa dancing and sold only nonalcoholic bev- erages hibited material be patently offensive ex- legitimate interest in improved law enforce eat patron. U.S.C.A. Const.Amend. 1. sought declaratory and injunctive tended beyond unprotected obscenity into ment. U.S.C.A. Const.Amend. 1. 12. Constitutional Law 4=90.4(2) relief from Washington countyordinances area of protected First Amendment activi- g� 4=42.1(6)8. Constitutional Law regulating or prohibiting barroom nude ty. U.S.C.A.Const.Amend. 1. Regulations of time, place or manner Owners and operators of establish- of protected speech will be upheld if neces- dancing and other exposure characterized 3. Constitutional Law 4r=90.2 ments offering nude entertainment had sary to further significant governmental as nonexpressive. The United States Dis- Even purely commercial speech is not standing to raise overbreadth challenge to interests, such as curtailing public sexual trict Court for the Western District of without First Amendment protections. county ordinances regulating or prohibiting contact and sexual criminal offenses. U.S. Washington,Barbara J.Rothstein and Jack U.S.C.A. Const Amend. 1. barroom nude dancing and other nudity C.A. Const.Amend. 1. 1106 804 FEDERAL REPORTER, 2d SERIES BSA, INC. v. KING COUNTY 1107 Cite at 804 F.2d 1104(9th Cir.1906) 13. Constitutional Law o=-90.4(3) Before ANDERSON, POOLE,and NEL- Both Counties provide affirmative de- Second, the Counties argue that even if s County had adequately justified ordi- SON,Circuit Judges. B fences to prosecution: the conduct is expressive, it is "obscene" Hance imposing valid distance requirement It is an affirmative defense to a prosecu- and therefore unprotected. But, nudity on nude public entertainment,even though POOLE, •Circuit Judge: tion for violation of[the ordinance] that alone is not sufficient to make material it considered no evidence regarding need The three cases before us were consol- the nudity or other public exposure, legally obscene. Jenkins v. Georgia, 418 for that ordinance before its adoption; ordi- idated on appeal. They involve constitu- when considered in the context in which U.S. 153, 161, 94 S.Ct. 2750, 2755, 41 nonce clearly furthered legitimate goal, tional challenges to ordinances from three presented,provided actual literary,artis- L.Ed.2d 642(1974); Chase v.Davelaar,645 was adopted to accomplish that end, and counties in the State of Washington. The tic, political or scientific value and was F.2d at 737. imposed at most very minimal restriction ordinances regulate or prohibit barroom not provided for commercial or sexual In Miller v. California, 413 U.S. 15, 93 on protected activity. U.S.C.A. Const nude dancing and other exposure charac- exploitation or with an emphasis on an S.Ct.2607,37 L.Ed.2d 419(1973),the Court Amend. 1. terized as non-expressive. The plaintiffs appeal to a prurient interest. adopted a three part test for identifying are owners and operators of adult enter- SCC 10.04.110; PCC§ 35.02.309. "obscene" speech not protected by the 14. Federal Courts 4=858 § tainment businesses that feature live top First Amendment. The Miller test asks Finding that party seeking permanent less dancing and sell only non-alcoholic bev- To summarize, the ordinances prohibit injunction against enforcement of entire or- erages. Each of the plaintiffs sued for nude exposure except that which is "ex_ whether the work taken as a whole (e- dinance was not"prevailing party"entitled declaratory and injunctive relief. No pros- with d e dance", or that nudity connected "appeals to the prurient interest," (2) de to attorneys'fees under civil rights statute with drama, science, education, or athletic Picts sexual conduct in a "patently offen- Yecutions have been brought under the ordi- was not clearly erroneous, where district nances. locker rooms. "Common barroom type top give way," and (3) "lacks serious literary, court enjoined enforcement of two of ordi- less dancing"is expressly prohibited. artistic, political, or scientific value." Id. nance's sections but upheld ordinance's ma- I. The Ordinances Banning Public Ex- at 24, 93 S.Ct.at 2614. for provisions against attack. 42 U.S.C.A. posure II. Ban on Barroom Nude Dancing [21 The ordinances challenged here omit § 1988. The Pierce County and Snohomish Coun- A. Protected Expression the Miller requirement that the material be 16. Civil Rights 6=13.17(13,20) ty ordinances prohibit public nudity,but do "patently offensive."t Thus, the prohibi- . The Counties contend that they can pro- tion extends beyond unprotected "obsceni- Federal Courts e=930 not apply to the following: hibit common barroom nude dancing and ty,"into the area of protected First Amend- Party obtaining injunction against en- A. "Expressive dance" means any dance other non-expressive nudity because it is ment activity. forcement of three of the eight sections of which, when considered in the context afforded no protection under the First ordinance banning public nude dancing of the entire performance, constitutes Amendment. The Counties raise three al- [3] Finally, the Counties argue that which had been expressly challenged was an expression of theme,story,or ideas, gusupport this conten- barroom nude dancingis totallyun rotect- P Y g ternative arguments to P "prevailing party" entitled to attorneys' but excluding any dance such as, but lion. ed because it is commercial speech. This fees under civil rights statute and award of not limited to, common barroom type argument was rejected in Chase v. Davel- $100 per hour for in-court work and$75 per topless dancing which, when con- [11 First, they assert that barroom car, where the court reasoned that topless hour for out-of-court work was not unrea- sidered in the context of the entire nude dancing is not First Amendment activ- dancing is not "related solely to the eco- sonable, but remand was warranted be- performance,is presented primarily as ity because it is non expressive and lacks nomic interests of the ... audience," nor cause district court had not clearly con- a means of displaying nudity as a sales any communicative element. This argu- does it propose a commercial transaction. sidered relationship between extent of suc device or for other commercial exploi- ment is controverted by Schad v.Borough Id.at 738. Moreover,even purely commer- cess and amount of award and might have Cation without substantial expression of Mount Ephraim, 452 U.S.61, 101 S.Ct cial speech is not without First Amendment awarded fees for claims on which party did of theme,story or ideas. 2176, 68 L.Ed.2d 671 (1981), where the Protections. Central Hudson Gas&Elec- not prevail. 42 U.S.C.A.§ 1988. B. Play,opera, musical or other dramatic Court acknowledged that"nude dancing is tric Corp. v. Public Service Comm n, 447 work; not without its First Amendment protec- U.S. 557, 561-63, 100 S.Ct. 2343, 2348-50, C. Class, seminar, or lecture, conducted lions from official regulation." Id at 66, 65 L.Ed.2d 341 (1980). Jack R. Burns, Burns & Meyer, P.S., for a scientific, medical or educational 101 S.Ct. at 2181 (emphasis supplied); ac- Bellevue,Wash., for plaintiff/appellant. Purpose; cord Doran v. Salem Inn, Inc., 422 U.S. B. Substantial Governmental Interest 922, 932, 95 S.Ct. 2561, 2568, 45 L.Ed.2d [41 Prohibition of a category of protect- D.L. Syferd, Seattle, Wash., Chris- similar facility used for changing tine Nudity within a locker room or other 648(1975); Grand Faloon Tavern, Inc. v. ed expression,including that which is sexu- Darrelltine Quinn-Brinthall, Tacoma, Wash.,John clothing in connection with athletic or Wicker, 670 F.2d 943,946(11th Cir.),cert. ally explicit, can be upheld only where it Dalton, Deputy Pros. Atty., Everett exercise activities denied, 459 U.S. 859, 103 S.Ct. 132, 74 furthers a substantial governmental inter- Wash.,for defendants/appellees. L.Ed.2d 113(1982); Chase v.Davelaar,645 eat unrelated to suppression of free expres- Snohomish County Code,("SCC"),§ 10.04.- F.2d 735,737 9th Cir.1981). Appeals from the United States District 040 A-D; Pierce County Code, ("PCC"), ( ) sion; and where the governmental interest Court for the Western District of Wash- § 36.02.308 A-D(substantially similar Ian- 1. Because the affirmative defense impermissibly nate the Miller requirement that the conduct ington a shifts the burden of proof to the defendant it appeal to prurient interest. See discussion infra Sig ) must fail. Therefore,the ordinances also elimi• at 1110. BSA, INC. v. KING COUNTY 1108 804 FEDERAL REPORTER, 2d SERIES Cite 804 F.2d 1104(9th co-.1986) 109 stantial interest in reducing the burden on drain on police resources; and testimony of could not be served by a means less intru- vention of the alleged harms." Ebel v. , sive on First Amendment activity. Schad, City of Corona, 698 F.2d at 393; Tovar V. , law enforcement, the County has not several individuals that topless dancing is 462 U.S. at 67,70, 101 S.Ct.at 2181, 2183; Billmeyer, 721 F.2d at 1266(citing Young, shown that its interest could not be immoral, lewd, and degrading to woman- achieved by a means less intrusive on pro- hood. There are numerous biblical refer- Young v. American Mini Theatres, 427 427 U.S.at 71,96 S.Ct. at 2453). In Kuzi- tected First Amendment activity. present- U.S.50,71,96 S.Ct.2440,2453,49 L.Ed.2d nich v. County of Santa Clara, 689 F.2d Y ences. No empirical evidence was 310(1976) (a municipality's "interest in at- 1345(9th Cir.1982),the court noted that the An alternative means of reducing any ed to the Council." (SCR-36). tempting to preserve the quality of urban government must show that the business additional burden on law enforcement life is one that must be accorded the high- has an impact"different"than other busi- caused by topless clubs seems available. [7) Snohomish County's overriding pur- est respect.") (plurality opinion); United nesses to justify the restriction was intend- The County tentatively approved another pose was exclude barroom topless - ordinance that set a yearly license fee of ing becausese some found it morally offffenen- States v. O'Brien, 391 U.S. 367, 377, 88 ed to accomplish its stated purposes. Id at $500 for dancing establishments. (PCR- sive. As such,the Count s interest in this S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); 1348. Y 30-18). There was discussion of scaling ban on nude performances is directly relat- Tovar v. Billmeyer, 721 F.2d 1260, 1264 (9th Cir.1983); Ebel v. City of Corona, 698 [6] The Pierce County Sheriff present- the fee to approximate law enforcement ed to the suppression of free expression. • F.2d 390, 392(9th Cir.1983). ed testimony and data to the County Conn- costs. The ordinance also requires public This is not a legitimate governmental inter- cil that were designed to show that the dancing places where food or drink is est, thus the restriction violates the First 1. Pierce County "soda pop" topless dancing clubs caused served to be closed from 2:00 a.m. to 6:00 Amendment. See Ebel v. City of Corona, a.m.(PCR-30-12-30). Pierce County asserts that its ban on and encouraged illicit activities such as 698 F.2d at 393(citing Kuzinich v. County nude dancing will reduce the burden on law prostitution, narcotics, and violence, and, Zoning, operating hour limits, licensing of Santa Clara, 689 F.2d 1345). nude enforcement resources. PCC-Pn on lac. therefore, such clubs had an added need fees, and distance requirements may well for law enforcement services. The sheriff be sufficient to curb any additional burden Snohomish County has available lesser The County contends that nude dancing restrictive means of serving its interest in causes or encourages unlawful activity. provided statistics on the number of police placed on law enforcement by these estab- g Y z lishments. improved law enforcement, see discussion The district court found that the Coun- calls to the topless clubs. supra at 1108-1109. The County has not ty's asserted justification was inadequate The data provided are not limited to calls In summary, Pierce County has not shown that these alternatives would not because there was no relationship between to particular clubs, but include "the imme- shown that the topless clubs present more adequately protect their interests. Hence, ofcrime and topless dancing and there was no diate vicinity." The record indicates that establishments,a law enforcement problem than other the ban on barroom nude performances evidence of prostitution or organized crime the areas where these clubs are located or that the prohibition on he must be invalidated. at topless establishments. The district may be conducive to criminal activity by nude dancing is necessary,or will abate the court also found that the County's interest the combination of liquor taverns, inex- problem. Furthermore,the County has not in effective law enforcement was adequate- pensive motels, and topless clubs.3 No carried its burden of showing that lesser C. Overbreadth ly served by the criminal laws. meaningful comparative statistics are pro- restrictive alternatives would be inade- The district court also found that the ban vided on hotels where prostitution occurs, quate. We, therefore, agree with the dis- on nude dancing was invalid because the [5) Where a regulation places a sub- trict court's finding that the ordinance vio- stantial restriction on free expression, as or the bars where alcohol is served. The ordinances were substantially overbroad. P lates the First Amendment. does this ban on nude dancing,it is subject data on police calls to two taverns is of to strict scrutiny. See Schatz 452 U.S. at little assistance given that there are fifty 2. Snohomish County [8) Initially, the Counties contest plain- 71, 101 S.Ct. at 2184; Harper v. Virginia to seventy-five in the County. .In sum,the tiffs' standing to raise the offs cannot Board of Elections, 383 U.S. 663, 679, 86 "County's proof does not show that topless The Snohomish County ordinance was en- challenge, arguing that plaintiffs cannot S.Ct. 1079, 1088, 16 L.Ed.2d 169 (1966). dancing is anymore a cause of lawlessness acted for the purpose of discouraging pros- assert the interests of absent third parties. than anyof the other businesses. titution and other illegal activity, and to This argument fails because plaintiffs do This may require the trial court to "make protect business and residential communi- not need vicarious standing. As owners factual findings on the validity of the ... Even if we found that the County had ties. SCC-Preamble. assertions of harm and then closely scruti- "shown that topless dancing caused.illegal and operators of establishments offering nize the ... ordinance's relationship to pre- activity and had thereby established a sub- Snohomish County has not shown a sub nude entertainment they are personally stantial governmental interest to justify threatened with prosecution should the or-- 2. The data provided by the Sheriff's office show traffic accident calls. (PCR-25). The Sheriff this ban on nude performances. Other dinance be upheld. See Warth v. Seldin, that twenty-five police calls were made to Night concluded,based on this evidence,that barroom than reports of several narcotics transact- 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204- Moves Tavern in 1982; two prostitution, four topless dancing inherently led to prostitution tions at one club, the evidence before the 05, 45 L.Ed.2d 343(1975). Here, "the par- fights, and the remainder were trouble with and lewd conduct. customer type calls. One hundred and five County Council consisted of letters and pe- ties challenging the statute are those who prostitution arrests were made at or in the"im- 3. Creek Water Dispensary is only several blocks titions from church groups and ministers desire to engage in protected speech that mediate area"of the New Players topless club in from Harolds on South Tacoma Way. (PCR— asserting that barroom nude dancing is cor- the overbroad statute purports to punish various complaints from child pornography to rupt and immoral; a sheriff's statement ' • Brockett v. Spokane Arcades, from Harold's. (PCR-28-9). Night Moves suspicious persons. The reported contacts with shares a parking lot with a bowling alley that that topless dancing is perceived as vice- Inc., 472 U.S.491, 105 S.Ct.2794, 2802,86 the clubs from January, 1983,are overwhelm- serves alcohol. ridden, it corrupts public morals and is a L.Ed.2d 394(1985). ingly investigative'contacts, house checks, and • •1110 804 FEDERAL REPORTER, 2d SERIES BSA, INC. v. KING COUNTY 1111 Cite as 804 F.2d 1104(9th Clr. 1956) The Supreme Court has invalidated stat- F.2d 135, 138(9th Cir.1980),aff d 454 U.S. County Ordinance No. 7216 § 8(A)(6)'; The six-foot/eighteen inch distance require- utes that are facially overbroad in that 1022, 102 S.Ct. 557, 70 L.Ed.2d 468(1981). SCC § 10.04.100. The purpose of the sec- ment furthers this interest by keeping ' they sweep in a broad range of First Here the Counties argue that the ordi- tion is to deter sexual contact and illegal nude entertainers just out of reach of the touching between performers and patrons. nearest patron. The district court there- Amendment protected expression. Inter- nances are not substantially overbroad be- state Circuit, Inc. v. City of Dallas, 390 cause they allow nude dancing in most The district court held that this was a fore properly found that the requirement U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 instances: expressive dance, (substantial reasonable time, place, or manner regula- constitutes a valid place or manner regula- (1968); Freedman v. Maryland, 380 U.S. story,theme,or ideas); drama,science and tion permissible under the First Amend- tion.6 51, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). educational classes, and in athletic locker ment.s We affirm. Where that expression is"conduct"and not rooms. We note at the outset that BSA and BSA,however,further raises a procedur- s speech,"the overbreadth of a statute must al challenge to the manner in which the Pe Chase have failed to explain how the dis- not onlybe real, but substantial as well, King County ordinance was adopted. The [10I Essentially,the Counties have War• tance requirement impinges upon their district court found that the King County judged in relation to the statute's plainly rowed the category of expression which is First Amendment rights. The requirement legitimate sweep." Broadrick v. Okla- afforded First Amendment protection. does not prohibit nude entertainment. It Council considered no evidence regarding home 413 U.S. 601, 615, 93 S.Ct. 2908, Only nude dancing with a substantial ex- also does not diminish the expressiveness the need for the distance requirement be- 2917,37 L.Ed.2d 830(1973)(emphasis add- pression of story,theme,or ideas,and Wadi- of nude entertainment. There is no allege- fo leasre adoption of the ordinance. Neverthe- ed); Chase v. Davelaar, 645 F.2d at 738. ty connected with drama, science, or edu-' lion that the distance between entertainer ,the district court concluded that King The legitimate application of the Pierce cation, or in athletic locker rooms is pro- and patron is an integral part of the ex- by adequately justified the ordinance and Snohomish ordinances is the prohibi- tected. The restriction is substantially pressive activity,or that"the viewing pub by introducing at trial affidavits from two tion on obscene nudity. The overbreadth overbroad. Barroom nude dancing is total- lic is [less able] to satisfy its appetite for Police officers. Both officers described challenge arises because the ordinances ly banned. Nude modeling for artists is sexually explicit fare." Young V. Ameri- their observations of sexual contact be- also prohibit non-obscene nude perform- unprotected,as is exposure by models in a can Mini Theatres, Inc., 427 U.S.at 62,96 tween patrons and dancers and concluded fashion h S.Ct. at 2448. that such incidents decreased after the pas- ances. Ultimately, only one prong of the sage of the distance requirement. sow. three part Miller "obscenity" test is pre- Before a statute which has not been en- [11,12] Even assuming, however, that BSA argues that the County's post facto served by these ordinances. forced or authoritatively interpreted can be the distance requirement does burden pro- invalidated by a facial challenge for over- tected expression, it is a valid place or justification was impermissible. It asserts [9] First, the ordinances do not require breadth,the court must determine whether manner regulation. Regulations of the that a "claim of governmental interest that the nudity be "patently offensive." there is a "readily apparent construction time, place,or manner of protected speech must be supported by empirical, factual Second, although the affirmative defense [by a state court] ... for rehabilitating the will be upheld if necessary to further sig- evidence actually considered at the time an has "appeal to prurient interest" require- statute[] in a single prosecution." Dom- nificant governmental interests. Ellwest ordinance is passed." Stero ment,it cannot be used because the affirm- browski v. Pfister, 380 U.S. 479, 491, 85 12ere Theatres, Inc. v. Wenner, 681 F.2d BSA's contention fails on three grounds. ative defense must fail. It impermissibly S.Ct. 1116, 1123, 14 L.Ed.2d 22(1965). (9th Cir.1982). Curtailing public First, it is sufficient that the County was sexual contact and sexual criminal offenses able to present some evidence at the time shifts to the defendant the burden of prov- The Counties assert that the affirmative ing the activity did not appeal to prurient defense would provide ample safeguards represents a significant state interest. Id. of trial. In Schad 452 U.S.at 72, 101 S.Ct. interests, and, therefore, is protected ex- this a 4. When cession. The Supreme Court held in Pat- for unintended defendants, but that de- § 0()()al as initiated the applicable of the two provisions that the height and dis P P KCC 6.08.05 A 6 provided: fense is invalid. There is no readily appar- tance requirements of both enactments are the terson v. New York, 432 U.S. 197,97 S.Ct. ent construction which would allow the or- No employee as described in subdivisions 1 same in the respects material to this case. Fur- 2319, 53 L.Ed.2d 281 (1977), that the Due and 2 of this subsection whose breasts and/or thermore,the identical issue is raised in Sugars, d Clause requires the prosecution to manner,nor has a to be nyed in a suggestedconstitutional the elsewhere in a pubre licplace to ew thanall perform Inc.v.Snohomish County. Accordingly the mo- Process y gg yupon a stage tion to dismiss as moot is denied. prove all the"elements included in the deft- at least eighteen inches above the immediate Counties. floor level and removed at least six feet from nita0n of the offense." Id at 210,97 S.Ct. thelo nearest patron. 5. We vacated submission in Sugar's v.Snohom- at 2327. Given that the County can only We find that these ordinances violate theish County, No.83-4000,and remanded to the On May 28, 1985, the King County Council prohibit conduct that is "obscene," it has First Amendment and cannot be given ef- passed CountyOrdinance Number 7216 which district court to allow a correction of the judg- ment as it a the burden of proving the activity falls feet. We need not reach the district amended former KCC§ 6.08.050(A)(6)to read appeared the district court had omit- amended further rulingthat the ordinances as follows: ted its denial of the challenge to the distance within that category. No employee or entertainer shall have their requirement. The case was resubmitted after Were unconstitutionally vague. breasts below the topof the areola or any the amended order denying the plaintiff's chal- Also, the Supreme Court has held that portion lenge was received bythis court. the burden of proving that the material is rtion of the pubic hair, vulva or genitals, HI. Distance Re uirements anus and/or buttocks exposed to view except unprotected "must rest on the censor." 4 upon a stage at least eighteen inches above 6. The Washington Court of Appeals upheld the Southeastern Promotions, Ltd v. Con- King County and Snohomish County re- the immediate floor level and removed at same distance requirement that is involved in rad 420 U.S.546,560,95 S.Ct. 1239, 1247, quire all nude entertainment to be per- least six feet from the nearest patron. this case as a reasonable time,place or manner Counsel for King County thereafter moved to regulation. County of King ex rel. Sowers v. 43 L.Ed.2d 448 (1975) (prior restraint); formed on a stage eighteen inches high and dismiss the appeal as moot because of the Chisman,33 Wash.App.809,814,658 P.2d 1256, Spokane Arcades, Inc. v. Brockett, 631 six feet from the nearest patron. King amendment. It is obvious from a mere reading 1260(1983). • 1112 804 FEDERAL REPORTER, 2d SERIES LaSALVIA v. UNITED DAIRYMEN OF ARIZONA 1113 Cite as 804 F.2d 1113(9th Clr. 1956) at 2184, the Supreme Court implied that The district court found that BSA was not and the amount of the fee award,"Hensley deal claim was barred by limitations, pre- the city could have justified its"substantial the prevailing party. We review this find- v. Eckerhart, 461 U.S.424, 103 S.Ct. 1993, eluding summary judgment; and(3) under t restriction of protected activity" by ing of fact under the clearly erroneous 76 L.Ed.2d 40 (1983), before awarding the continuing harm doctrine, operators' con- presenting evidence at trial. BSA provides standard. Gummi Indian Tribe v. Olt- entire amount of fees requested. certed refusal to deal claims were not no authority requiring that a legislative man, 720 F.2d 1124, 1125 (9th Cir.1983). barred by four-year limitations period body need function like a court of law (141 Here BSA sought a permanent in- V. Conclusion harm alleged continued into four- ear erif every time it considers legislation that may Y P junction against enforcement of the entire The district court correctly found that od preceding filing of complaint. implicate the First Amendment. King County ordinance. The district court the ban on nude dancingviolated the First Reversed and remanded. Second,the cases cited by BSA in which did enjoin enforcement of two of the ordi- Amendment. The court was also correct in courts have required a "factual basis" all nance's sections.? However, it upheld the ruling that the distance requirement was a involve ordinances that substantially re- major provisions against BSA's attack. proper place and manner restriction, and 1. Monopolies G=D28(1.6) strict protected speech. CLR Corp. v. Given BSA's limited success, the district that BSA was not a prevailing party enti- Operators of independent dairy farm Henline,702 F.2d 637(6th Cir.1983); Kuzi- court's finding was not clearly erroneous. tled to attorney's fees. We remand the were proper parties to challenge dairy nich v. County of Santa Clara, 689 F.2d attorney's fee award to Sugar's for recon- farmers' cooperative's allegedly anticom- 1345(9th Cir.1982); Basiardanes v. City of B. Sugar's sideration in light of Hensley v.Eckerhart. petitive behavior, where operators compet- Galveston, 682 F.2d 1203 (5th Cir.1982); Snohomish County challenges the district ed with cooperative and were allegedly Avalon Cinema Corp. v. Thompson, 667 court's award of $2,948.75 in attorney's w harmed bycooperative's F.2d 659(8th Cir.1981); Keego Harbor Co. o EttrMUMlfISYSIfM p ative's enforcement of V. City of Keego Harbor, 657 F.2d 94(6th fees to Sugar's. i "base plan" system for calculating its Cir.1981); Fantasy Book Shop,Inc.v. City [151 The County challenges the hourly members'monthly milk payments,payment of Boston, 652 F.2d 1115(1st Cir.1981). In rate set by the district court. Sugar's re- of rebates to handlers, and acquisition of this case the distance requirement imposes quested $125 per hour. The district court transport facilities. Fed.Rules , § 4(c. 18 at most a minimal restriction on First set the rate at $100 per hour for in-court Rule en16, ed U.S.C.A.; Clayton Act, § 4(a)in-courtAmendment activity. work and $75 per hour for out-of-court Jerome LaSALVIA and Peggy LaSalvia, as amended, 15 U.S.C.A. § 15(a). work. The Countycontends that the hour- husband and wife,Plaintiffs-Appellants, Third,there is no evidence indicating that 2. Monopolies�28(7.3) King County passed the distance require- ly rate should have been $65, but has not v. Evidence of dairy farmers' coopera- ment to suppress protected speech rather shown the prevailing market rates for sim- UNITED DAIRYMEN OF ARIZONA, an tive's allegedly anticompetitive behavior than to deter illegal sexual contact. Given ilar service(civil rights suits)by lawyers of Arizona marketing association; Robert could be considered in determining whether this,there is no reason to require a"facto reasonably comparable skill and reputation M. Girard; and Leonard F. Cheatham, operators of independent dairy farm were al basis" in support of the ordinance. Ac- would be $65 or that the fee set by the Defendants-Appellees. proper parties to bring antitrust action cordin 1 Su ar's challenge that Snohom- court was unreasonable. See Blum v. No. 85-1592. q P g Y g q Stepson, 465 U.S. 886, 104 S.Ct. 1541, 79 a ainst coo erative, despite operators' al- ish County's factual findings were made- leged failure to show damage from goes quate must also fail. L.Ed.2d 891 (1984). The district court did United States Court of Appeals, tioned practices. Fed.Rules Cr.Proc.Rule not abuse its discretion in setting the rate. Ninth Circuit. 16, 18 U.S.C.A.; Clayton Act, § 4(a), as [131 The requirement clearly furthers a Nor did the court err in finding that Sug- legitimate goal, is adapted to accomplish ar's was the prevailing party. Argued and Submitted Feb. 10, 1986. amended, 15 U.S.C.A. § 15(a). that end,and imposes at most a very mini- We remand, however,because it appears Decided Nov. 21, 1986. 3. Federal Civil Procedure e=2484 mal restriction on protected activity. that the district court mayhave awarded Evidence that dairyfarmers' coopera- Hence, we find no error. fees for claims on which Sugar's did not tive's refusal to handle independent dairy IV. Attorne s Fees prevail. Operators of independent dairy farm farm's excess production may not have y' brought antitrust action against dairy been final raised material issue of fact as A. BSA Sugar's sought a permanent injunctionto farmers' cooperative, its general manager, whether farm operators' unilateral re- against enforcement of the entire ordi- and its president. The United States Dis- fusel to deal claim was barred by limita- BSA appeals from the district eourt's nance,expressly challenging eight sections. trict Court for the District of Arizona,C.A. denial of its request for attorneys' fees The district court enjoined enforcement of Muecke,J.,granted defendants'motion for flops, precluding summary judgment. under 42 U.S.C. § 1988. We affirm. Clayton Act,§ 4B,as amended,15 U.S.C.A. three. Given this,the district court should summary judgment, and plaintiffs appeal- The party seeking attorneys' fees under have made"clear that it had considered the Appeals,The Court of A ale, Goodwin, Cir- § 15b; Fed.Rules Civ.Proc.Rule 56(c), 28 U.S.C.A. § 1988 must be the "prevailing party." relationship between the extent of success cuit Judge, held that: (1) operators were 7. The district court enjoined enforcement of the which prohibited convicted felons from obtain- proper parties to challenge cooperative's 4. Limitation of Actions 4b58(1) following two sections: (1) §6.08.050(D)(1) ing a license to operate an adult entertainment allegedly anticompetitive behavior; (2)evi- Under continuing-harm doctrine, con- which excluded 18 to 21 year olds from adult studio. dence raised material issue of fact as to certed refusal to deal claim of operators of • entertainment studios and (2) §6.08.050(F)(2) whether operators' unilateral refusal to independent dairy farm against dairy farm- 222 STRUNK v.STATE FARM AUTO INS. June 1978 June 1978 BOLSER v. LIQUOR CONTROL BOARD 223 90 Wn.2d 210,580 P.2d 622 90 Wn.2d 223,580 P.2d 629 injured persons without compensation. The insurance pol- I dissent. icy must therefore have implicitly recognized that no insur- ance would be available under that policy to some injured WRIGHT, C.J., and HAMILTON and UTTER, JJ., concur with persons with valid claims. The policy itself recognized that, HOROWITZ, J. as to some injured persons, the vehicle would indeed be uninsured because no insurance proceeds at all would be available. The majority also argues that the express provision in the statute for recovery against the uninsured motorist car- rier in the case of an insolvent liability policy carrier indi- [No. 44757. En Banc. June 22, 1978.] cates that there was no intention to cover the case of the CHARLOTTE BOLSER, ET AL, Appellants, underinsured motor vehicle causing the accident. As V. WASHINGTON pointed out above, this is not a case of an underinsured STATE LIQUOR CONTROL BOARD, Respondent. vehicle. Even if it were, the inference drawn by the major- [1] Administrative Law and Procedure — Administrative ity does not necessarily follow. It is unreasonable to argue, Rules — Validity — Standing To Challenge. Under RCW 34.04.070, which authorizes an action to determine the validity of an in effect, that the legislature intended, by enacting statutes administrative rule, a person has standing to challenge a rule if it to assure payment to the innocent victims of an accident, to reasonably appears that the rule may interfere with or impair his have its meaning construed in such a way as to diminish or rights or privileges. eliminate the protection thus afforded. If the legislature [2] Intoxicating Liquors — State Police Powers — Regulation had any intention beyond merely addressing the problem of of First Amendment Activities. U.S. Const. amend. 21, which the insolvent liability insurer, it is more reasonable to prohibits use of intoxicating liquors in violation of state laws, assume it intended to leave to the courts the task of carry- empowers the states to regulate certain First Amendment rights when expressed in conjunction with the consumption of alcoholic ing out the intent and purpose of the statutes as new prob bevera es. Any y infringement of First Amendment privileges is to be lems arise. balanced against legitimate state interests in regulating the use of I agree with Palisbo v. Hawaiian Ins. & Guar. Co., supra intoxicating liquors. at 13. [3] Intoxicating Liquors — Topless Dancing Regulation — Where the results of a literal application of certain Validity. Liquor Control Board regulations requiring topless danc- statutory terms would be plainly at variance with the ing to be performed at least 6 feet from the nearest patron and on a remedial purposes of the law, and obviously would be platform at least 18 inches high is not, on its face, an unconstitu- inconsistent with the legislative policy embodied within tional infringement on First Amendment rights. the statutory scheme, courts have followed the purpose, [4] Constitutional Law — Pursuit of Chosen Occupation — rather than the literal words of the statute. Regulation. A state may regulate a person's pursuit of his chosen We have adopted substantially the same rule in this state. occupation insofar as reasonably required by the public interest. Amburn v. Daly, supra; Touchette u. Northwestern Mut. [5] Civil Rights — Sex Discrimination — Administrative Ins. Co., supra. I would follow that rule here. Interpretation. An administrative regulation interpreted to apply 224 BOLSER v.LIQUOR CONTROL BOARD June 1978 - June 1978 BOLSER v.LIQUOR CONTROL BOARD 225 90 Wn.2d 223,580 P.2d 629 90 Wn.2d 223,580 P.2d 629 equally to persons of either sex does not violate the equal rights In their original complaint, plaintiffs prayed for a declar- amendment(Const. art. 31 (amendment 61)). atory judgment that WAC 314-16-125 was invalid and for ROSELLINI, J., WRIGHT, C.J., and BRACHTENBACH, J., dissent by separate injunctive relief against its future enforcement. They allege opinion. violation of their right to employment, their freedom of speech and expression, and the equal rights amendment. Nature of Action: Certain persons challenged a Liquor Control Board regulation restricting the conditions wherein Const. art. 31 (amendment 61). topless dancing is permitted in establishments serving The trial court treated plaintiffs' complaint as a petition intoxicating liquors. for a declaratory judgment under RCW 34.04.070, which provides,'in pertinent part: Superior Court: The Superior Court for Thurston (1) The validity of any rule may be determined upon County, No. 52808, Robert J. Doran, J., on November 5, petition for a declaratory judgment thereon addressed to 1975, dismissed the challenge finding a lack of standing and the superior court of Thurston county, when it appears also that the rule was valid on its face. that the rule, or its threatened application, interferes Supreme Court: Holding that the challengers had with or impairs or immediately threatens to interfere with or impair, the legal rights or privileges of the peti- standing, but that U.S. Const. amend. 21 empowered the i tioner. The agency shall be made a party to the proceed- state to impose the restrictions in question and that other ing. The declaratory judgment may be rendered whether specific constitutional provisions were not violated, the or not the petitioner has first requested the agency to court affirms the judgment. pass upon the validity of the rule in question. The trial court found the plaintiffs "interested in and Landon R. Estep and Lundin, Estep, Sindell & Haley, Inc., P.S., for appellants. . . . affected by the rule" but devoid of any rights or privi- leges affected thereunder. It concluded that "plaintiffs have Slade Gorton, Attorney General, and John G. Hennen, not met the requisite burden established by the Legislature Assistant, for respondent. for standing to challenge the rule adopted by the Board governing licensees of the Board." DOLLIVER, J.—Plaintiffs are dancers who perform in [1] The interpretation of RCW 34.04.070 urged by establishments licensed by defendant Washington State defendant and adopted by the trial court makes the ques- Liquor Control Board. In 1975, the Board adopted WAC tion of standing circular. Whether plaintiffs have standing, 314-16-125 which forbids a licensee (tavern owner) from depends on whether they have any legal rights or privileges permitting topless table dancing at floor level and within 6 'i which will be interfered with or impaired; but this question feet or less of a customer. The regulation applies only to is the final conclusion of the law suit. Thus, under this the licensee and does not expressly control the conduct of analysis, standing, a threshold inquiry, must await its reso- the dancers. WAC 314-16-125(6) provides: lution until a final determination of plaintiffs' case. Subject to paragraph (5') herein, [it is prohibited] to The approach in Blondheim v. State, 84 Wn.2d 874, 877, permit entertainers whose breast and/or buttocks are 529 P.2d 1096 (1975), on the question of standing is useful exposed to view to perform elsewhere on the licensed in resolving this problem. In Blondheim, we adopted the premises except upon a stage at least eighteen inches test set forth by the United States Supreme Court in Asso- above the immediate floor level and removed at least six feet from the nearest patron. ciation of Data Processing Serv. Orgns., Inc. v. Camp, 397 . 226 BOLSER v. LIQUOR CONTROL BOARD June 1978 June 1978 BOLSER v.LIQUOR CONTROL BOARD 227 90 Wn.2d 223,580 P.2d 629 90 Wn.2d 223,580 P.2d 629 U.S. 150, 153, 25 L. Ed. 2d 184, 90 S. Ct. 827 (1970). That Hostetter, 384 U.S. 35, 41-42, 16 L. Ed. 2d 336, 86 S. Ct. case held: 1254 (1966): The "legal interest" test goes to the merits. The ques- Consideration of any state law regulating intoxicating tion of standing is different. It concerns, apart from the beverages must begin with the Twenty-first Amendment, "case" or "controversy" test, the question whether the the second section of which provides that: "The trans- interest sought to be protected by the complainant is ! portation or importation into any State, Territory, or arguably within the zone of interests to be protected or possession of the United States for delivery or use regulated by the statute or constitutional guarantee in therein of intoxicating liquors, in violation of the laws question. thereof, is hereby prohibited." We interpret RCW 34.04.070(1) in accordance with the Enlarging upon this passage, the Supreme Court in approach adopted in Blondheim. When, as here, it reason- California v. LaRue, 409 U.S. 109, 114, 34 L. Ed. 2d 342, 93 ably appears the regulation in question or its threatened S. Ct. 390 (1972), stated: application may interfere with or impair or it immediately While the States, vested as they are with general police threatens to interfere with or impair the legal rights or power, require no specific grant of authority in the Fed- privileges of the plaintiffs, they then have requisite stand- eral Constitution to legislate with respect to matters tra- ing to challenge the rule under RCW 34.04.070(1). Kenneth ditionally within the scope of the police power, the broad Culp Davis, Standing, 1976, 72 Nw. U.L. Rev. 69, 80 (1977). sweep of the Twenty-first Amendment has been recog- nized as conferring something more than the normal We hold plaintiffs, even though not licensees, possess state authority over public health, welfare, and morals. standing to litigate the merits of the challenged infringe- In LaRue, the Supreme Court upheld regulations enacted ment of rights. by the California Department of Alcoholic Beverage Con- Although plaintiffs were dismissed for lack of standing, trol which forbade displaying of live or simulated acts of the trial court did rule on the merits of the alleged impair- sexual intercourse or showing of movies depicting the same, ment of rights and privileges. Because plaintiffs have chal- exposure of the genital area, and other sexually oriented lenged those findings and in the interests of judicial conduct in its licensed premises. While LaRue did not go so economy, we rule on the various contentions set forth. far as to hold that the Twenty-first Amendment grant of First, plaintiffs challenge the authority of the Liquor authority to the states supersedes all other provisions of Control Board to adopt the regulation in question. We the United States Constitution, it did hold that some pro- have, however, disposed of that issue in Anderson, Leech & tected speech could be proscribed: Morse, Inc. v. State Liquor Control Bd., 89 Wn.2d 688, 575 While we agree that at least some of the performances to P.2d 221 (1977), which was decided by the court subse- which these regulations address themselves are within quent to the hearing in this case. In Anderson, we specifi- the limits of the constitutional protection of freedom of cally upheld the authority of the Liquor Control Board to expression, the critical fact is that California has not for- promulgate WAC 314-16-125. bidden these performances across the board. It has [2] Plaintiffs next contend the regulation is overbroad merely proscribed such performances in establishments and may, in given situations, affect expression which is that it licenses to sell liquor by the drink. protected by the First Amendment. Initially, we note this California v. LaRue, supra at 118. controversy arises in the context of liquor control regula- In Richter v. Department of Alcoholic Beverage Control, tions and as set forth in Joseph E. Seagram & Sons, Inc. v. 559 F.2d 1168 (9th Cir. 1977), the United States Court of Appeals was called upon to review a specific application of 228 BOLSER v.LIQUOR CONTROL BOARD June 1978 June 1978 BOLSER v.LIQUOR CONTROL BOARD 229 90 Wn.2d 223,580 P.2d 629 90 Wn.2d 223,580 P.2d 629 the same liquor regulations challenged in LaRue. The The two cases brought to our attention by plaintiffs in court, at page 1172, held: which the Twenty-first Amendment was held insufficient to The goal of the regulation is not censorship of the justify a liquor control regulation are inapposite. In expression but the prevention of crime and disorderly Wisconsin v. Constantineau, 400 U.S. 433, 27 L. Ed. 2d conduct which is concomitant with the consumption of ; 515, 91 S. Ct. 507 (1971), the Supreme Court held uncon- liquor in such situations. In this case, it was shown at the stitutional a Wisconsin statute which allowed designated hearings held prior to the promulgation of the rules that persons to forbid the sale or gift of intoxicating liquors to a vast amount of various crimes (e.g., rape, prostitution, public indecency, assaults, etc.) was taking place on or one who "by excessive drinking would expose himself or near premises wherein the forms of entertainment delin- family to "want" or become "dangerous to the peace" of the eated in the rules occurred. The Department's regula- community. In striking down the legislation, the Supreme tions were a form of prophylactic action to prevent Court specifically found that the statute could cloak the victimizing by, or victimization of, intoxicated patrons of forbidden person with a "badge of infamy" without notice such establishments. The Supreme Court in LaRue found or opportunity to be heard. The court stated at page 437: the Department's efforts to be reasonable and this court is bound by that holding. Where a person's good name, reputation, honor, or Plaintiffs do not delineate what protected speech or integrity is at stake because of what the government is expression is infringed by the requirement that topless doing to him, notice and an opportunity to be heard are essential. dancing occur on an elevated platform at least 6 feet away Here, however, no "badge of infamy" or other form of per- from the patrons. If there is an infringement, we conclude it is at most minimal. Any minimal First Amendment sonal degradation attaches to the individual dancer by imposition of the 6-foot limitation; no due process viola- infringements caused by the 6-foot, elevated-platform restriction must be balanced against the underlying policies tions caused by lack of notice and opportunity to be heard which led to adoption of WAC 314-16-125. In its "concise are alleged. Wisconsin v. Constantineau, supra, is inappli- statement" (see RCW 34.04.025) issued .at the time of the cable to plaintiffs situation. adoption of the regulation, the Board listed the following as In Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. Ed. 2d one of its principal reasons for promulgation: 648, 95 S. Ct. 2561 (1975), a local ordinance in New York which forbade topless dancing in any public place was The number of cases wherein arrests have been made challenged as overbroad. There was no limitation to the and licensees have been cited for allowing disorderly per- interpretation of "any public place". The Supreme Court sons on licensed premises has increased many times over during the last few years. The majority of these viola- found the ordinance could apply to a theater, town hall, or tions of the Liquor Act involved topless table dancing. opera house, as well as a public marketplace, street, or any The rule, as adopted, will minimize the chances of place of assembly, indoors or outdoors. repeated violations of this nature. Even if we may assume that the State of New York has Thus, not only was the infringement minimal, but the reg- i delegated its authority under the Twenty-first Amend- ulation was reasonable and rationally related to the fur- ! ment to towns such as North Hempstead, and that the therance of legitimate state interests. See California v. ! ordinance would therefore be constitutionally valid under LaRue, supra; Richter v. Department of Alcoholic Bever- LaRue, supra, if limited to places dispensing alcoholic age Control, supra. beverages, the ordinance in this case is not so limited. (Italics ours.) Doran v. Salem Inn, Inc., supra at 933-34. 230 BOLSER v. LIQUOR CONTROL BOARD June 1978 June 1978 BOLSER v. LIQUOR CONTROL BOARD 231 90 Wn.2d 223,580 P.2d 629 90 Wn.2d 223,580 P.2d 629 [3] This case presents the factual corollary of LaRue dancers and thus their rights to employment have not been which was distinguished in Doran; that is, WAC 314-16- taken from them. As shown by the "concise statement", 125 applies only to conduct on the licensed premises. Cou- there is a significant and substantial public interest pled with the fact that topless dancing is not forbidden on involved in the promulgation of the rule. We affirm the trial licensed premises unless on floor level and within 6 feet of court's holding that WAC 314-16-125 does not violate patrons, we find Doran not controlling. The regulation here plaintiffs' rights to earn a living in their chosen occupation. is within the test announced by LaRue and applied in Since there is no violation of plaintiffs' rights to employ- Richter. We affirm the trial court's finding that WAC 314- ment, we need not reach the question of whether they are 16-125 is valid on its face and does not unconstitutionally employees or independent contractors. infringe plaintiffs' First Amendment rights. While there [5] Finally, plaintiffs claim the regulation constitutes may be situations where the application of WAC 314-16- sex-based discrimination in violation of the equal rights 125 would raise constitutional problems, no such circum- amendment, Const. art. 31 (amendment 61), and our hold- stance exists in this case. See California v. LaRue, supra at ing in Darrin v. Gould, 85 Wn.2d 859, 540 P.2d 882 (1975). 119 n.5. Our review of WAC 314-16-125 reveals the statute would [4] Plaintiffs' next contention is that, under the Four- apply equally to male and female dancers. Nothing in the teenth Amendment, WAC 314-16-125 unconstitutionally regulation itself distinguishes between the sexes. proscribes their "right to earn a living unfettered by unrea- Whether the regulation would be applied against male sonable or arbitrary limitations." In support of this propo- dancers has been the subject of an administrative hearing sition, they cite the cases of Schware v. Board of Bar and declaratory ruling by the Liquor Control Board involv- Examiners, 353 U.S. 232, 1 L. Ed. 2d 796, 77 S. Ct. 752 ing a licensee, and attached here as an exhibit to respon- (1957); Truax v. Raich, 239 U.S. 33, 60 L. Ed. 131, 36 S. Ct. dent's response to the petition. In the Matter of the 7 (1915); and Dent v. West Virginia, 129 U.S. 114, 32 L. Hearing of Mildred Dontos, License No. 352755, January Ed. 623, 9 S. Ct. 231 (1889). However, these cases deal only 27, 1976. In that declaratory ruling, the Liquor Control with whether a state can exclude a person from practicing a Board stated: certain occupation within that jurisdiction. They do not The portion of the requested Declaratory Ruling . . . address the issue of whether a state could regulate the that male entertainers need not have their chests covered occupation. when performing at floor level within six feet of patrons In Parrish v. West Coast Hotel Co., 185 Wash. 581, 55 must be denied for the following reasons. WAC 314-16- P.2d 1083 (1936), aff'd 300 U.S. 379, 81 L. Ed. 703, 57 S. 125 contains no language which would make it applicable to one sex and not the other. Further, if the Board were Ct. 578 (1937), we held that, when matters of public inter- to apply it to one sex and not the other there is a possi- est are concerned, the State may reasonably regulate cer- bility that this could constitute discrimination based on tain terms of the work relationship. There we allowed the sex. See Darrin v. Gould, 85 Wn.2d 859 (1975). The Board will issue violation tickets to and impose penalties establishment of minimum wage laws which did not uncon against any licensee allowing a male entertainer to engage stitutionally violate the right to employment. in conduct violative of WAC 314-16-125. The record before this court indicates plaintiffs are cur- There is no violation of the equal rights amendment by rently engaged in their chosen occupation as topless WAC 314-16-125. 232 - BOLSER v.LIQUOR CONTROL BOARD June 1978 June 1978 BOLSER v.LIQUOR CONTROL BOARD 233 90 Wn.2d 223,580 P.2d 629 90 Wn.2d 223,580 P.2d 629 We reverse the trial court on the question of standing, . Title liberally construed. This entire title shall be but uphold the validity of WAC 314-16-125 as it applies to deemed an exercise of the police power of the state, for plaintiffs. the protection of the welfare, health, peace, morals, and safety of the people of the state, and all its provisions HAMILTON, STAFFORD, UTTER, HOROWITZ, and HICKS, JJ., shall be liberally construed for the accomplishment of concur. that purpose. RCW 66.08.030 permits the board to make only such ROSELLINI, J. (dissenting in part)—I dissent only to that regulations as are consistent with the spirit of the title. part of the opinion approving WAC 314-16-125(6), which As I read these provisions, they authorize the board to permits entertainers whose breast and/or buttocks are make regulations to promote the public morals in places exposed to perform upon licensed premises. where liquor is sold and prohibits the board from making The majority relies on the case of Anderson, Leech & regulations which tend to encourage immoral and indecent Morse, Inc. v. State Liquor Control Bd., 89 Wn.2d 688, 575 conduct. P.2d 221 (1978). That case approved only WAC 314-16— Does the rule tend to promote the health, peace, morals, 125(1), which forbids a licensee: good order and the welfare of the people, or does it tend to (1) To employ or use any person in the sale or service correct some evil or promote some interest of the state? of alcoholic beverages in or upon the licensed premises ; Does the rule tend to accomplish the purposes set forth in while such person is unclothed or in such attire, costume the liquor control act? or clothing as to expose to view any portion of the breast I cannot conceive any state of facts to exist which justi- below the top of the areola or of any portion of the pubic lies a conclusion that to permit topless dancers to perform hair, anus, cleft of the buttocks, vulva or genitals. where li uor is sold The court in that case did not pass upon the validity of q promotes the welfare, peace, morals, WAC 314-16-125(6). and safety of the people of the state. The majority has not addressed this question or attempted to show such conduct In neither Anderson, Leech & Morse, Inc. v. State promotes the welfare and morals of the people. The con- Liquor Control Bd., supra, nor this case has either party verse is true. The demoralizing effect of sexually suggestive challenged the authority of the board to permit such con- entertainment on persons consuming alcohol in public duct on licensed premises. In Anderson, the board was establishments dedicated to that purpose was recognized by anxious to have section (1) of WAC 314-16-125 approved the United States Supreme Court in California v. LaRue, and the appellant did not desire to have section (6) 409 U.S. 109, 34 L. Ed. 2d 342, 93 S. Ct. 390 (1972). The invalidated. constitutionality of regulations forbidding indecent enter- The parties' agreement as to the pertinent issues at times tainment on licensed premises was upheld by the United leads courts into traps. The stipulated issues lead to one States Supreme Court in that case. conclusion, but the parties ignore issues which would result I would hold that the regulation which permits topless in a different conclusion. Thus the courts are lulled into dancing on stage on licensed premises is invalid because the error. legislature has not authorized the board to promulgate such Neither the appellant nor the liquor board argued or quoted RCW 66.08.010, which provides: I 1{ I . 234 GENERAL ELECTRIC CREDIT v.ISAACS June 1978 June 1978 GENERAL ELECTRIC CREDIT v.ISAACS 235 • 90 Wn.2d 234,581 P.2d 1032 90 Wn.2d 234,581 P.2d 1032 a rule. Rather its duty, under the statute, is to prohibit Superior Court: The Superior Court for King County, conduct of this kind. No. 787930, Francis E. Holman, J., on June 10, 1976, entered a summary judgment giving priority to tax liens of WRIGHT, C.J., and BRACHTENBACH, J., Concur with the United States. ROSELLINI, J. Supreme Court: Holding that the unperfection of a security interest at the expiration of the security period subordinates such interest to previously junior federal tax liens, the court affirms the judgment. M. Wayne Blair (of Montgomery, Purdue, Blankinship [No.44853. En Banc. June 22, 1978.] & Austin), for appellants. GENERAL ELECTRIC CREDIT CORPORATION, Respondent, v. Myron C. Baum, Acting Assistant Attorney General, DONALD W. ISAACS, ET AL, Defendants, ROBERT Gilbert E. Andrews, Crombie J. D. Garrett, and Wynette J. WELCOME, ET AL, Appellants, THE UNITED Hewett, Department of Justice (J. Ronald Sims, United States Attorney and Thomas B. Russell, Assistant United STATES OF AMERICA, Respondent. States Attorney, of counsel), for respondent. [1] Secured Transactions — Taxation—Tax Liens —Priority — Federal Taxes. The priority of a federal tax lien in relation to HAMILTON, J.—This appeal involves a question of federal a state-created security interest is determined in accordance with federal law. law. We are asked to decide whether a federal tax lien has priority over a state—created security interest which was [2] Secured Transactions — Taxation— Tax Liens —Priority perfected at the time notice of the tax lien was filed, but —Unperfection of State Security Interest. Under 26 U.S.C. § 6323(a) and (h)(1), which provide that a federal tax lien is subordi- which later became unperfected. General Electric Credit nate to state-created security interests that are perfected at the Corporation (GE) is a mere stakeholder; the real parties in time the federal lien is filed, a state-created security interest that' interest are the United States and Robert Welcome and his becomes unperfected because of expiration of the statutory period wife. The debtor, Donald W. Isaacs, has not appeared and loses its priority over, and becomes junior to, a federal tax lien claims no interest. The trial court, upon stipulated facts which had been subordinate during the period of perfection. and cross motions for summary judgment, gave priority to [3] Secured Transactions —Taxation— Tax Liens — Priority the tax liens of the United States. We affirm. — Knowledge of Unperfected Lien. 26 U.S.C. § 6323 describes The debtor, Isaacs, was engaged in the business of buying the only state-created security interest which can have priority over a federal tax lien and, by not making knowledge a material factor, and selling mobile homes. In order to finance his business, renders inapplicable the provisions of RCW 62A.9-301, which give he entered into an agreement with GE whereby GE pur- priority to an unperfected security interest over those with knowl- chased his installment sales contracts. As part of this edge of its existence. financing arrangement, a reserve fund was created as secu- Nature of Action: A financing agency brought this rity for losses on the installment contracts. When GE liqui- action to resolve competing claims to a reserve fund it held dated the account, the reserve fund contained $6,717. GE as part of a financing arrangement. subsequently received notices of competing claims to the fund from the United States and Welcome. The interest of the United States arose by reason of certain tax liens in the Oil' 808, STATE v.SHRINER Jan. 1983 Jan. 1983 COUNTY OF KING v.CHISMAN 809 t 33 Wn.App.800,658 P.2d 31 33 Wi. App.809,658 P.2d 1256 consequences of not heeding the demand. The statute also , ibility. The trial judge did not err in refusing the pro- f requires that time be given to permit compliance with the t ' posed instruction. demand for the return of the property. ' [5, 6] No objections were taken to the trial court's other In short, the special leasing and rental statute is designed ''y instructions to the jury, therefore, they constitute the law to help prevent misunderstandings arising over leased or of the case. State v. Robinson, 92 Wn.2d 357, 359, 597 P.2d rented property and to head off the possible filing of pre- 892 (1979); State v. Parker, 97 Wn.2d 737, 742, 649 P.2d cipitous and perhaps unwarranted criminal actions; and 637 (1982). Under the facts shown, together with reasonable that is precisely the opposite of the situation dealt with in inferences therefrom, and the trial court's instructions to Dan forth.4 the jury on the crim of theft in the first degree, the jury as We have reviewed the defendant's remaining assignments the rational trier of the fact could have found such ele- of error and conclude that they are not well taken. ments beyond a reasonable doubt. State v. Green, 94 [4] The trial court gave the Washington pattern Wn.2d 216, 221, 616 P.2d 628 (1980), citing Jackson v. Vir- instructions on reasonable doubt (WPIC 4.01) and credibil- ginia, 443 U.S. 307, 316-20, 61 L. Ed. 2d 560, 99 S. Ct. 2781 ity of witnesses (WPIC 6.01), see 11 Wash. Prac. 38, 79 (1979); State v. Gerber, 28 Wn. App. 214, 216, 622 P.2d 888 (1977). It did not give the identification instruction pro- (1981). posed by the defendant. As to the latter, we conclude here Affirmed. as we did in State v. Edwards, 23 Wn. App. 893, 896-97, 600 P.2d 566 (1979) wherein the trial court refused to give a WILLIAMS and CORBETT, JJ., concur. similar instruction: Reconsideration denied April 19, 1983. Witness credibility is more properly tested by examina- tion and cross—examination, and any weaknesses in eye- Review granted by Supreme Court June 17, 1983. witness identification may be exposed by counsel in argument to the jury. State v. Jordan, [17 Wn. App. 542, 564 P.2d 340 (1977)]. The general reasonable doubt instruction given by the trial judge enabled Edwards to argue his theory of the case and attack the victims' cred- [No. 11262-7-I. Division One. January 31, 1983.] 'Even though the issue of whether the defendant was properly charged and THE COUNTY OF KING, on the Relation of Leo M. was denied his right to equal protection under the law was not raised in the trial court, since it does involve a claimed violation of a constitutional right, we have Sowers, Respondent, V. KENT D. CHISMAN, deemed it appropriate to here consider it. See RAP 2.5(a)(3); Olsen v. Delmore, ET AL, Defendants, NORM RAY ADAMS, 48 Wn.2d 545,546,295 P.2d 324(1956). Appellant. We will not go further, however,and consider what the effect might be if the notice prescribed by the special leasing and rental statute, RCW 9A.56.095, was [1] Obscenity — Nudity — Regulation — Freedom of Speech. served on the defendant and if he was nevertheless charged under the more seri- Government ordinances as to the time, place, and manner of nude ous first degree theft statute, RCW 9A.56.020-.030.The defendant concedes that i conduct do not violate constitutional freedom of speech if they are "[tlhe record,in fact,is silent on the subject of whether notice was served." Reply reasonably related to the regulation of activity which is legitimately Brief of Appellant,at 5.The reason the record is silent is that the defendant did perceived as potentially disruptive of the social order, and if they not raise this issue at trial. Since the record is silent on that issue, we decline to provide protections for expressive activity involving nudity. speculate on it. State v. Wicke, 91 Wn.2d 638, 642-43, 591 P.2d 452 (1979). See also State v. Williams,30 Wn.App.558,563-66,636 P.2d 498(1981)and author- [2] Constitutional Law — Judicial Review — Action Based on .. ities therein discussed. Proper and Improper Grounds.A decision reached on constitu- ri 4 810 . COUNTY OF KING v.CHISMAN Jan. 1983 Jan. 1983 COUNTY OF KING v.CHISMAN 811 33 Wn.App.809,658 P.2d 1256 33 Wn.App.809,658 P.2d 1256 tionally valid grounds will be upheld even though other grounds finding him in contempt for violating a preliminary injunc- given for the action are constitutionally suspect. tion by continuing to operate a topless dancing establish- [3] Constitutional Law — Licenses — Protected Activity — In ment without a King County license. He also appeals the General. A constitutionally protected activity may be subject to a validity of the preliminary injunction. licensing requirement if the matters considered by the licensing authority are relevant to the particular activity. In September 1981, Adams began operating the Booby Trap, a soft-drink and topless dancing establishment in [4] Constitutional Law — Injunction — Overbreadth — Preju- dice — Necessity. A party may not challenge an injunction unincorporated King County. He started operations before restricting a constitutionally protected activity as being overly broad applying for a license as required by former King County unless he shows prejudice therefrom. Code 6.08. He then applied for a license, but was denied on [5] Injunction — Prior to Injury — Discretion of Court — four grounds: (1) he had been operating without a license; Review. The granting of a temporary injunction to prevent viola- (2) he had a prior conviction;' (3) he allowed "table danc- tion of law is discretionary with the trial court, and will be reversed ing," with dancers less than 6 feet away from the patrons;2 only upon a showing of abuse of discretion. The fact that a statute and (4) he had allowed people under 21 years of age into provides for preventative injunctions is indicative of a legislative the Booby Trap.3 He continued to operate even after the determination that statutory violation itself is an injury to the KingCountyBoard of Appeals affirmed the denial of his community. PP [6] Appeal and Error—Findings of Fact — Review — In Gen- license, and on December 8, 1981 the County moved in eral. A trial court's findings will not be reversed if supported by superior court for a preliminary injunction. This motion substantial evidence. was orally granted on December 18, 1981. Nature of Action: A county sought to prevent the 'King County Code 6.08.027(F)provides: defendant from operating a topless dancing establishment "No public amusement or entertainment license shall be issued to,maintained without a license and from violating other county ordi- or renewed by any person who has: "1.While unlicensed, committed or aided and abetted the commission of any nances. act for which a license is required under the provisions of this chapter;or "2.Committed any act resulting in conviction or bail forfeiture of a felony or a Superior Court: The Superior Court for King County, crime involving moral turpitude,including but not limited to prostitution;. . No. 81-2-17737-9, H. Joseph Coleman, J., entered a pre- liminary injunction and, on January 26, 1982, held the 'King County Code 6.08.027 provides: "Standards for public amusement/entertainment license issuance.A.No public defendant in contempt for violation of the injunction. amusement/entertainment license shall be issued . . .where an employee will not conform and abide by the following requirements for his or her conduct thereon:Court of Appeals: Holding that the ordinances and the injunction were constitutional, that the injunction was not "6. No employee . . . whose breasts and/or buttocks are exposed to view shall an abuse of discretion, and that the evidence supported the perform elsewhere in a public place than upon a stage at least eighteen inches finding of contempt, the court affirms the judgment. above the immediate floor level and removed at least six feet from the nearest patron." Victor V. Hoff, for appellant. 3King County Code 6.08.027(D)provides: Norm Maleng, Prosecuting Attorney, and C. Craig Par- "No public amusement/entertainment license shall be issued, maintained or ker, Deputy, for respondent. renewed as set forth in subsection A of this section where activity of any employee shall follow that authorized by subdivision 6 of subsection A of this section unless: iJURHAM, A.C.J.—Norm Ray Adams appeals an order "1.Admission to the public place is restricted to persons of the age of twenty— one years or more;. . . 812 . COUNTY OF KING v.CHISMAN Jan. 1983 Jan. 1983 COUNTY OF KING v. CHISMAN 813 33 Wn.App.809,658 P.2d 1256 33 Wn.App.809,658 P.2d 1256 ; ' ;i Later in December, Adams sold his interest in the busi- i� FREEDOM OF EXPRESSION , ness to Alexa Work, a dancer at the Booby Trap. In the 1+ Adams' arguments are grounded on the contention that ! sale agreement, the imminence of the injunction was spe- '-1 topless dancing is protected per se by the First Amendment °q cifically mentioned. The agreement gave Adams the option right of freedom of expression. It is true that dancing does i to repurchase the business in 1 year for $1,000. Work could ,I not lose its expressive quality simply because its perform- not sell to anyone else in the interim, and she agreed to, in ance involves nudity. Schad v.'Mount Ephraim, 452 U.S. effect, maintain Adams' business practices. The Booby 61, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981). Trap continued operating as before, although Adams did Nonetheless, while the communication of a nude dancer not himself actively participate in running it. may be entitled to First Amendment protection, the nudity On January 8, 1982 the court entered its order granting '! itself is not automatically protected. State v. Baysinger, preliminary relief. The order prohibited Adams from oper- 397 N.E.2d 580 (Ind. 1979), appeal dismissed sub nom. ' Clark v. Indiana, 446 U.S. 931, 64 L. Ed. 2d 783, 100 S. Ct. ating without a license, operating in violation of the topless dancing regulations of section 6.08.027(A), allowing the 2146 (1980). It becomes protected activity only on a show- premises to be used for any business in violation of chapter ing that it contains an expressive element.' See State v. 6.08, accepting any money from such a business, or aiding 'i Baysinger, supra; Gabriele v. Old Orchard Beach, 420 A.2d in any way another person's acting in a manner prohibited 252 (Me. 1980); Major Liquors, Inc. v. Omaha, 188 Neb. to Adams. The Booby Trap continued to operate as before. a 628, 198 N.W.2d 483 (1972). Nudity, in and of itself, is On January 15, the County moved that Adams and oth- I clearly conduct and has traditionally been subject to the ers not a party to this appeal be held in contempt. The police power of the State, particularly when used as sales court found Adams to be in contempt' and entered an promotion in bars and restaurants.' Portland v. Derring- enforcement order. Pursuant to this order, the Booby Trap 1 - — was closed on about January 29, 1982. The order provided `i• 5The record shows that the activities of the table dancers at the Booby Trap that Adams could purge the contempt by obtainin a li included conduct which would be extremely difficult to define as "dancing" and g 1 which was arguably obscene. Any protection that dancing might have is lost, of license and operating the Booby Trap in accord with all course, if the dancing is found to be obscene. Commonwealth v. Kocinski, 414 applicable law. i N.E.2d 378 (Mass. App.Ct. 1981);People v.Better,33 Ill.App.3d 58,337 N.E.2d 272(1975). PRELIMINARY INJUNCTION N 6This case does not involve the serving of liquor and is thus not resolved by Adams' challenges to the preliminary injunction fall into , �� the holding of California v. LaRue, 409 U.S. 109, 34 L. Ed. 2d 342, 93 S. Ct. 390 four categories: (1) The injunction violates the first amend- ;) (1972). The Court in LaRue held that under the Twenty-first Amendment the ment to the United States Constitution by abridging his j+a states have greater power to regulate in a way that impinges on arguably pro- freedom of expression, (2) the County's licensing require- 1� tected activity when the regulation is pursuant to their power to control the sale constitute a prior restraint of First Amendment J and distribution of liquor. LaRue does not address the question of whether top- mentsless dancing falls within the "arguably protected" category. LaRue, at 112 n.2. rights, (3) the injunction was overly broad, and (4) the Three states have found protection under their state constitutions for activities regulatable under LaRue. Bellanca v. New York State Liquor Auth., 54 N.Y.2d injunction was improper due to failure to prove actual and substantial injury. We shall discuss these in order. 228, 429 N.E.2d 765, 445 N.Y.S.2d 87 (1981), cert. denied, 456 U.S. 1006 (1982); .i Mickens v. Kodiak, 640 P.2d 818 (Alaska 1982); Commonwealth v. Sees, 374 'Adams had asked for discretionary review in the Court of Appeals of thepre- . , Mass.532,373 N.E.2d 1151 (1978).But even under such a broad protection, time/ pp d place/manner regulations are permissible. Bellanca v. New York State Liquor liminary injunction. On March 31, 1982 the commissioner granted discretionary = Auth.,supra. review of the contempt proceeding. R`' 1 AI' i y a 814 COUNTY OF KING v.CHISMAN Jan. 1983 Jan. 1983 COUNTY OF KING v. CHISMAN 815 • 33 Wn.App.809,658 P.2d 1256 33 Wn.App.809,658 P.2d 1256 i ton, 253 Or. 289, 451 P.2d 111, cert. denied, 396 U.S. 901 expressive activity. In Schad, the ordinance prohibited all ' (1969). See also Seattle v. Hinkley, 83 Wn.2d 205, 517 P.2d ' live entertainment within the borough. Section 6.08.027(A) 592 (1973). refers to any place of "public amusement/entertainment," a 1 In Crownover v. Musick, 9 Cal. 3d 405, 509 P.2d 497, 107 category broadly defined by section 6.08.005(A).7 Nonethe- Cal. Rptr. 681 (1973), cert. denied, 415 U.S. 931 (1974), the less, the requirements of section 6.08.027(A) clearly apply court considered the constitutionality of ordinances prohib- only to nude entertainment. In Doran, the ordinance iting topless and bottomless entertainment in restaurants. banned all nude entertainment whatever its expressive It ruled that there was no prima facie First Amendment protection for topless dancing. Recognizing that nude con- component. Section 6.08.027(A) does not ban topless danc- ing, but merely regulates the way in which it is presented. duct can be distinguished from protected communication, the court said: These restrictions do not apply to nudity when part of an "expressive" performance on a theater stage. Section It is clear that these provisions of the ordinances are 6.08.027(E).8 The scope of the activity covered by section directed at conduct—topless and bottomless exposure— 6.08.027 is, therefore, much narrower than that found pro- and not at speech or at conduct which is "in essence" speech or "closely akin to speech." A common sense con- tected in Schad and Doran. Thus, even assuming some struction . . . of the pertinent provisions is that they First Amendment right to present topless dancing, the proscribe nudity in specified public places. They do not requirements of section 6.08.027(A) are time, place, and prohibit entertainment but merely enjoin that if the manner restrictions which are reasonably related to the goal entertainer or performer offers it, he or she must have some clothes on. In a word the ordinances regulate cons, of regulating activity which is legitimately perceived as duct. I potentially disruptive of the social order, and which provide Crownover, at 425. The court concluded that nude conduct protections for expressive activity involving nudity. by entertainers in the establishments governed by the ordi- PRIOR RESTRAINT nances was not "symbolic in the constitutional sense" and Adams also challenges the constitutionality of licensing upheld the ordinances against a First Amendment chal- requirements for operating a topless establishment. He lenge. Crownover, at 425. [1] Although we find the conclusion in Crownover highly 'King County Code 6.08.005 provides: persuasive, we need not resolve the issue of prima facie "A. 'Public place of amusement,' 'public amusement/entertainment,'and'pub- lic entertainment' mean an amusement,diversion,entertainment,adult entertain- protection here. The ordinances before us are valid time, ment studio, show, performance, exhibition, display or like activities, for the use place, and manner restrictions of topless dancing, even i or benefit of a member or members of the public, or advertised for the use or assuming some degree of constitutional protection. •See fi, benefit of a member of the public, held, conducted,operated or maintained for a Young v. American Mini Theatres, Inc., 427 U.S. 50, 49 L. profit,direct or indirect." Ed. 2d 310, 96 S. Ct. 2440 (1976). 8King County Code 6.08.027(E)provides: These ordinances are unlike those overturned in Schad u. "This section does not apply to: Mount Ephraim, supra, and Doran u. Salem Inn, Inc., 422 "1.Taverns and premises maintaining liquor licenses;or "2.Any theater, concert hall, or similar establishment which is primarily U.S. 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975) upon devoted to theatrical performances whereupon there are seats arranged so that a which Adams mistakenly relies to find a per se protected body of spectators has an unobstructed view of the stage for performance of right to present topless dancing. The ordinances in both G artistic expression and where such performances are not incidental to the promo- Schad and Doran were overbroad, rohibitin Clearl 'u tion of the sale of food and drink and for which a county license is otherwise in p g y full force and effect." 4, , as 816 ' COUNTY OF KING v.CHISMAN Jan. 1983 c Jan. 1983 COUNTY OF KING v. CHISMAN 817 33 Wn.App.809,658 P.2d 1256 t'r 33 Wn.App.809,658 P.2d 1256 argues that, in general, it is shall be issued" to those who refuse to abide by their pro- license when protected activityps involved, and, specifically, a ` ?;; visions. Adams continued to be in violation of both sections that it is objectionable when the license is conditioned on 'I, while his license application was pending, while its denial "good moral character," section 6.08.020,9 or is automati- ;, was being appealed, and after the denial was affirmed. cally denied for past conduct, section 6.08.027(F). See Near k, Although denial solely on the grounds of past violations v. Minnesota.ex rel. Olson, 283 U.S. 697, 75 L. Ed. 1357, 51 might arguably be prior restraint under Near, this is not S. Ct. 625 (1931). the factual pattern presented here. Adams' activities, con- Adams claims that this case is controlled by Seattle v. tinuing throughout the licensing process, were violations of Bittner, 81 Wn.2d 747, 505 P.2d 126 (1973). In Bittner, the valid restrictions and provide constitutionally valid grounds court struck down a Seattle ordinance which prohibited the for denying his license.10 Where a decision is reached on issuance of licenses to exhibit motion pictures to anyone valid grounds, the fact that other reasons given for the who was not of "good moral character" or who had been decision are constitutionally suspect does not invalidate the convicted of a crime of moral turpitude. The court found • decision. See Mount Healthy City Sch. Dist. Bd. of Educ. that exhibition of motion pictures was well established as a v. Doyle, 429 U.S. 274, 50 L. Ed. 2d 471, 97 S. Ct. 568 a protected activity, that the ordinance was not restricted to (1977). the nonprotected activity of distributing obscene motion [3] Bittner does not stand for the proposition that there pictures, and that the license requirements were invalid can be no licensing requirement for protected activity. The since "the constitution does not permit a licensing agency . to deny to any citizen the right to exercise one of his fun- A4 101f sections 6.08.020 and .027(F) are constitutionally infirm, they can be sev- '1, damental freedoms on the ground that he has abused that , t ered from the ordinance and do not invalidate it as a whole. The test for sever- freedom in the past." Bittner, at 756. ;R} ability of a section of a statute is 'n whether the constitutional and unconstitutional provisions are so con- [2] Even if we were to assume, arguendo, that topless netted. that it could not be believed that the legislature would have dancing is entitled to the same level of protection as motion f passed one without the other; or where the part eliminated is so inti- mately connected with the balance of the act as to make it useless to picture distribution, we do not agree that Bittner is dispos- r.,,: accomplish the purposes of the legislature. itive. Adams' license was not denied solely because of his "` Hall v.Niemer,97 Wn.2d 574,582,649 P.2d 98 (1982),quoting State ex rel.King prior conviction under section 6.08.027(F). He was also in 'fu Cy. v. State Tax Comm'n, 174 Wash. 336, 339-40,24 P.2d 1094 (1933).The lace ordi- nance, read as a whole, shows a primary intent to regulate nude entertainment violation of section 6.08.027(A), a reasonable time, 1� { and only incidentally an intent to regulate the qualifications of those who present and manner regulation, by permitting "table dancing." He it.Chapter 6.08 contains a severability clause,section 6.08.047,which provides: was further in violation of section 6.08.027(D) by allowing ,.. Should any section,subsection,subdivision, paragraph, sentence, clause or 11, those under 21 into the Booby Trap. This section, too, is a '4' phrase of this chapter or application thereof to any person or circumstance,be reasonable regulation, not a ,g, declared unconstitutional or invalid for any reason, such decision shall not gprohibition of a protected r! affect the validity of the remaining portions of this chapter,or its application activity. Both sections specifically provide that "no license -:,j, to any other person or circumstance. Such clauses, while not controlling the issue of severability, are an aid to consid- 9King County Code 6.08.020 provides: y` eration of the issue.Hall,at 584. "Due date for license fees—Character requirement.All license fees are payable The court below held that Adams did not having standing to challenge section to the King comptroller at least weeks before the of '- 6.08.020 since his license was not denied under that section.Since we find that the tainment, and Countycn comptr receipt presentedttwo to the director openingfo approvalof enter-- t. denial was valid under other sections of chapter 6.08,and since section 6.08.020 is severable even if unconstitutional, the question of standing need not now be rejection. Licenses shall be issued by the director only to persons of good moral 4f., addressed. character." Y i,b Cl 818 ' - COUNTY OF KING v.CHISMAN Jan. 1983 Jan. 1983 COUNTY OF KING v.CHISMAN 819 • " 33 Wn.App.809,658 P.2d 1256 33 Wn.App.809,658 P.2d 1256 li court merely prohibited denials based on past activities. It provides for injunctions against violations of its provisions. .noted that when considering a governmental authority's Section 6.08.070.11 This indicates a decision by the legisla- I licensing power, "the authority to regulate varies, depend- tive body that the regulated behavior warrants enjoining, ing upon the type of activity or enterprise involved." Bitt- and that the violation itself is an injury to the community. ner, at 751. The test is if the matters considered by the It is not the court's role to interfere with this legislative licensing authority are relevant to the particular activity to decision. be licensed. Bittner, at 754. Continuing compliance with Adams here did more than operate without a license. His valid time, place, and manner regulations even of a fully activities were violations of specific regulations and could , protected activity is certainly a relevant factor in consider- have been enjoined even if he had first obtained a license. ing the issuance or denial of a license. The trial court did not abuse its discretion in issuing a OVERBREADTH ,1 temporary injunction where the ordinance itself provided [4] Adams' final constitutional argument is that the r for this relief. injunction was overbroad because it prevented him from i':4 operating any "public place of amusement/entertainment," ORDER OF CONTEMPT not just topless establishments. Although the '' [6] Finally, Adams assigns error to the order finding g injunction ^g him in contempt. He argues that he did not violate the may have been broadly worded, Adams presents no evi- injunction since he had sold the Booby Trap to Alexa Work dence that he has attempted to operate a different sort of 1 before the injunction was entered and was no longer an establishment or been denied a license to do so. Thus, he active participant in the operation of the business. The trial has not shown that he has been prejudiced by any potential a court found that Adams was in privity with Work, and overbreadth. f; careful examination of the record reveals substantial evi- No INJURY DEMONSTRATED `E dence to support this finding of fact. The finding will, [5] In addition to his constitutional objections, Adams therefore, not be disturbed on appeal. Thorndike v. Hes- argues that the preliminaryinjunction wasiunder ! perian Orchards, Inc., 54 Wn.2d 570, 343 P.2d 183 (1959). state law because the County failed to show r actual and Since the injunction explicitly forbade Adams to "encour- substantial injury. LeMaine v. Seals, 47 Wn.2d 259, 287 1,i age, solicit, aid, assist, direct or employ" anyone to do acts P.2d 305 (1955). Granting a temporary injunction is within ki that he could not, Work's continuing operation of the the sound discretion of the trial court. Marion Richards 1 ‘,l i Booby Trap in violation of the injunction resulted, by priv- Hair Design, Inc. v. Journeymen Barbers Local 195-A, 59 il, ity, in a violation by Adams.Adams' argument that the contempt order was improper Wn.2d 395, 367 P.2d 806 (1962). We will reverse that deci- , sion only if there is a strong showing of an abuse of discre- because the injunction was invalid fails, of course, under tion. State v. Ralph Williams' N.W. Chrysler Plymouth, ;r I our finding that the injunction was properly issued. Inc., 87 Wn.2d 298, 553 P.2d 423 (1976), appeal dismissed, 1. 1, ,r. 430 U.S. 952, 51 L. Ed. 2d 801, 97 S. Ct. 1594 1977 . j King County Code 6.08.070 provides: ( ) "Notwithstanding the existence or use of any other remedy, the director may Violation of a statute does not necessarily inflict injury 9'' seek legal or equitable relief to enjoin any acts or practices which constitute or ", will constitute a violation of any business license ordinance or other regulations sufficient to warrant an injunction. Motor Car Dealers' Ass'n v. Fred S. Haines Co., 128 Wash. 267, 222 P. 611, 36 1'_' herein adopted." A.L.R. 493 (1924). Here, however, the ordinance specifically if,: fl.'E ,f1;Hr"� a` . } 820 , - REED v.ELLER Jan. 1983 j'= Jan. 1983 REED v.ELLER 821 33 Wn.App.820,664 P.2d 515 Y '.; 33 Wn.App.820,664 P.2d 515 II The judgment is affirmed. 'i I' .r, nest money agreement sought specific performance of the ..{ Sa :,i. i': : 'i' agreement and to quiet title in himself after the sellers had • CALLOW and SCHOLFIELD, JJ., concur. declared a forfeiture and conveyed the land to a third 1„y Reconsideration denied March 1, 1983. i;' party. The purchaser's late payments under the earnest .1 money agreement had been accepted by the escrow agent. 1 Review detiied by Supreme Court May 27, 1983. l' Superior Court: The Superior Court for Lewis County, • I No. 36173, D. J. Cunningham, J., on October 1, 1980, !' entered a judgment in favor of the sellers upholding the • forfeiture. ,'I.> [No. 5037-4-II. Division Two. January 31, 1983.] A. Court of Appeals: Holding that the sellers had waived ±. SIDNEY REED, Appellant, V. CARSON F. ELLER, i their right to enforce the "time is of the essence" provision i4. ET AL, Respondents. 1'' of the agreement, the court reverses the judgment, rein- [1] Vendor and Purchaser —Forfeiture—Agreement Prelim- states the agreement, and divests the third party of any inary to Real Estate Contract. A preliminary agreement which interest in the land. y is to ripen into a real estate contract once sufficient payments are t Bryan Chushcoff, for appellant. '[? made to comprise a down payment is considered a real estate con- 3t'` , tract for purposes of applying the rules of forfeiture. Richard Brosey and.Geoffrey C. Cross, for respondents. ,i [2] Vendor and Purchaser — Forfeiture — In General. Forfei- tures are not favored and will not be permitted unless the right is so '1-? REED, J.—A real estate vendor repeatedly, but unwit- clear as to permit no denial. 'ill tingly, permitted his purchaser to make late payments on [3] Vendor and Purchaser — Time for Payment — Waiver — 11; an earnest money agreement. Can he enforce a "time is of !,r ea Effect.Following a failure to enforce a "time is of the essence" pro- i{` the essence" clause and declare a forfeiture? The trial court i i. :z; vision of a real estate contract, the seller is required to give the pur- answered in the affirmative. The vendee maintains that 1. chaser notice and a reasonable time to perform before declarin l forfeiture for untimel g a strict performance was waived or that the vendor is y payments. i; estopped from enforcing the "time is of the essence" provi- ii. [4] Vendor and Purchaser — Time for Payment — Waiver — if Collection by Third Party. When a third sion. We agree and reverse. party collects pay- In the spring of 1977, Sidney Reed was shown a small ments under a real estate contract on behalf of a vendor, the yen- '„ i,: parcel of Lewis County land by.Mr. Hayertz, an agent for , dor's lack of knowledge that the third party has accepted late payments does not prevent a finding that a "time is of the essence" ' Sundown Land Brokers, Inc. Reed decided to purchase the provision has been waived. property for $7,950 but lacked funds for a substantial down ' payment. Consequently, Mr. Hayertz drafted an offer in the t [5] Vendor and Purchaser — Bona Fide Purchaser — Pur- :i chase by Executory Contract. A purchaser under a real estate form of a "continuing earnest money agreement" to present contract is not a bona fide purchaser for value until legal title is to the owners, Carson and Linda Eller. The agreement was ' acquired by payment of the full contract price. IT dated March 18, 1977 and, after receipting for a cash down WORSWICK,J., concurs in the result only. payment of $200, called for monthly payments of $75 per ,., month, including principal and interest. Payments on the r' Nature of Action: A purchaser of land under an ear- iii i deferred balance were to commence April 14, 1977, and 134 JORDAN v. OAKVILLE June 1986 • 106 Wn.2d 122,720 P.2d 824 June 1986 KITSAI'COUNTY v. KEV,INC. 135 106 Wn.2d 135,720 P.2d 818 the police force to one full-time officer, for budgetary rea- sons, effectively eliminated plaintiff's temporary position on misled; the report of the arguments before the trial court demonstrates that all counsel treated the matter as a sum- the force. Since plaintiff's termination was inevitable, regardless of the mayor's wishes, plaintiff's First Amend- The judgment motion on behalf of all the defendants. ment claim fails. The trial court did not err when, after extensive argu- Plaintiff's remaining claims can be disposed of more suc- j ments and thorough consideration, it ruled that the plain- cinctly. tiff was not entitled to civil service protection, and that the The plaintiff also contends that the defendants violated defendants had not acted unlawfully in terminating the 42 U.S.C. § 1983 in terminating his employment. To prevail plaintiff's employment. on this claim, he must show that a person or persons, acting Affirmed. under color of state law, deprived him of a right secured by DOLLIVER, C.J., and UTTER, BRACHTENBACH, DORE, PEAR- the United States Constitution or by federal laws.18 Since ! SON, CALLOW, GOODLOE, and DURHAM, JJ., concur. the plaintiff has not shown that the defendants deprived him of either his due process or First Amendment rights and, since he does not allege that he has been deprived of any other federally guaranteed right, his § 1983 claim fails. 3oll Nv, Plaintiff's contention that the defendants acted arbitrar- ily and capriciously in terminating his employment is [No. 52185-9. En Banc. June 12, 1986.] essentially repetitive of his prior claims, and is disposed of by our resolution of those claims in favor of the defendants. KITSAP COUNTY, Respondent, V. KEv, INC., Finally, plaintiff argues that summary judgment should Appellant. not have been granted for all of the defendants because not , [1] Nuisance — Public Nuisance — What Constitutes. An activ- all of the defendants moved for summary judgment. This ity which is conducted in plain violation of state or local laws, or argument, however, is based on an overly technical reading which affects an entire neighborhood by violating the comfort, of the defense motions challenging the pleadings. A motion repose, health, or safety of others, is a public nuisance. to dismiss pursuant to CR 12(b)(6) was filed on behalf of [2] Constitutional Law — Injunction — Prior Restraint — "the defendants" and was directed at all of the claims made Existing Violation. An injunction may properly prohibit natural in the plaintiff's complaint. The parties in argument before and corporate persons from continuing or resuming activities deter- the trial court then proceeded to refer to matters in the mined to be violations of law or to be public nuisances, but may not prohibit such persons from engaging in other activities solely on the record other than the pleadings, such as depositions and basis that they may possibly involve breaches of the law. affidavits. Since none of this was objected to or excluded by the court, the trial court properly considered the motion as Nature of Action: A county sought a permanent a summary judgment motion.19 Furthermore, no one was injunction against the natural and corporate owners and operators of an erotic dance studio, seeking to prohibit the IRParratt u. Taylor, 451 U.S. 527, 535, 68 L. Ed. 2d 420, 101 S. Ct. 1908 existing activity and any similar activity in the future. (1981). 19 Superior Court: The Superior Court for Kitsap CR 12(h). County, No. 84-2-00144-7, Gary W. Velie, J., on June 11, 1984, granted the requested relief. 136 , KITSAP COUNTY v.KEV,INC. June 1986 June 1986 KITSAP COUNTY v.KEV,INC. 137 106 Wn.2d 135,720 P.2d 818 106 Wn.2d 135,720 P.2d 818 Supreme Court: Holding that the studio was properly would be in charge of hiring and firing and who was to determined to be a public nuisance and that the permanent assist in running the business properly. The next day, the injunction was proper but involved some improper prior detective learned from King County police that Schwartz restraint, the court affirms the judgment except as to the was really Norman Adams, a person known to be connected prohibition of future lawful activities of the defendants. with topless dancing and its attendant litigation in the James K. Sells and Jack Burns, for appellant. Seattle area.2 C. Danny Clem, Prosecuting Attorney, and Ronald A. When Fantasy's opened in June, an undercover officer Franz, Deputy, for respondent. was assigned to observe the business because the detective had been lied to by Adams and wanted to know what was ANDERSEN, J.— happening inside. The officer called himself "Woody" and FACTS OF CASE visited Fantasy's a total of 105 times. He observed "scores" The trial court enjoined Key, Inc., its officers and other of ordinance violations at Fantasy's. Examples included persons closely connected with an erotic dance studio from permitting alcohol and its consumption on the premises, hiring a minor as a waitress, violating dancing distance and operating any such studio in Kitsap County. We affirm the injunction as modified. touching regulations, allowing unlicensed dancers to per- On February 7, 1983, the Kitsap County Board of Com- form and allowing dancers to solicit tips. The officer also missioners passed ordinance 92 regulating erotic dance observed arrangements being made for, and actual drug sales, on the premises. The trial court further found that studios. A month later, ordinance 92 was amended by the use of controlled substances by those employed by the ordinance 92-A. The ordinances put time, place and man- ner restrictions on topless and erotic dancing in Kitsap club, including manager Fjerstad, was pervasive. In addi- County.' tion, some of the dancers made contacts for prostitution at Kev, Inc., obtained a license pursuant to these ordinances Fantasy's, the manager purchased sexual favors for associ- ates and sexual acts occurred on the dance studio premises. and in June 1983 opened an erotic dance studio called Fantasy's. The studio was located in the unincorporated The undercover officer ended his observations by arrest- ing the manager for delivery of a controlled substance (a town of Gorst in Kitsap County. The license application named Kevin Fjerstad as the sole officer, shareholder and pound of cocaine) in Fantasy's parking lot on February 13, director of Key, Inc. The trial court found, however, that 1984. On February 14, Kitsap County sought a permanent injunction against Fantasy's. A preliminary injunction was Norman Ray Adams controlled Fantasy's and was the true issued, and shortly thereafter BSA, Inc., acquired the assets owner and moving force behind the business. Adams' fail- ure to identify himself as Fantasy's owner violated section 4 of Key, Inc. While Russell Eggert is allegedly the sole offi- of ordinance 92. cer, shareholder and director of BSA, the court found that his stepbrother, Norman Adams, controls that corporation. Before Fantasy's opened, a Kitsap County detective vis- ited the studio and talked to those in charge. He testified The trial judge listened to 4 days of testimony before declaring Fantasy's a public nuisance. He concluded that that he talked to one Jim Schwartz, the "advisor" who the only practical remedy was abatement. He also perma- IA United States District Court judge deemed ordinance 92-A constitutional, except for its closing hour provision. Key, Inc. v. Kitsap County, No. C83-180ft 2See County of King ex rel. Sowers v. Oilman, 33 Wn. App. 809, 658 P.2d (W.D.Wash. 1984). 1256(1983). 1 I 188 KITSAP COUNTY v.KEV,INC. June 1986 106 Wn.2d 135,720 P.2d 818 June 1986 KITSAP COUNTY v.KEV,INC. 139 106 Wn.2d 135,720 P.2d 818 nently enjoined Key, Inc., Fjerstad, Eggert, Adams and regulating topless dancing provided for injunctions against BSA, Inc., from operating a business subject to ordinances 92 and 92—A in Kitsap County. The judge so held on the violations of its provisions. It continued: basis that Key, Fjerstad, Eggert, Adams, and BSA acted in This indicates a decision by the legislative body that the concert with respect to Fantasy's. regulated behavior warrants enjoining, and that the vio- Kev, Inc. appealed the trial court's ruling, and theCourt lation itself is an injury to the community. It is not the court's role to interfere with this legislative decision. of Appeals transferred the appeal to this court.3 (Italics ours.) Chisman, at 819. ISSUES The trial court echoed this statement in its memorandum ISSUE ONE. Did the trial court err when it concluded that opinion: "In the Ordinances under consideration, Section 11 Fantasy's was a public nuisance? states that violation is a nuisance and this is a legislative ISSUE Two. Did the trial court err in issuing a permanent decision, that violation of the Ordinance is in itself an injunction against Fantasy's and against those who oper- injury to the community." ated and controlled it? Entirely aside from section 11 and the ordinance viola- tions,DECISION the other illegal activities which were permitted to be ISSUE ONE. openly carried on at Fantasy's satisfied the statutory defi- nitions of a public nuisance. A nuisance is defined by RCW CONCLUSION. The Kitsap County Commissioners validly 7.48.120: provided that a studio in violation of ordinance 92 would be Nuisance consists in unlawfully doing an act, or omit- declared a public nuisance. Section 11 of that ordinance ting to perform a duty, which act or omission either provides that any "activity, act, or conduct contrary to the annoys, injures or endangers the comfort, repose, health provisions of this ordinance is hereby declared to be unlaw- or safety of others, offends decency, or unlawfully inter- ful and a public nuisance". Under the evidence and the feres with, obstructs or tends to obstruct, or render dan- trial court's findings of fact, Fantasy's was properly held to gerous for passage, any lake or navigable river, bay, be a public nuisance. stream, canal or basin, or any public park, square, street [1] An ordinance may not make a thing a nuisance, or highway; or in any way renders other persons insecure in life, or in the use of property. unless it is in fact a nuisance.' Engaging in any business or A public nuisance is a nuisance that affects equally the profession in defiance of a law regulating or prohibiting the rights of an entire community or neighborhood, although same, however, is a nuisance per se. This principle was the extent of the damage may be unequal.6 implicitly upheld in County of King ex rel. Sowers v. Chis- 33 Wn. App. 809, 658 P.2d 1256 (1983). There, the Almost daily violations of controlled substance and pros- man,Court of Appeals observed that a King County ordinance titution laws is activity that violates the comfort, repose, health, or safety of others, and can clearly affect an entire 3RAP 4.3. neighborhood or community. Fantasy's attracted drugs and drug dealers from Philadelphia, Alaska and Seattle into the 4Greenwood u. Olympic, Inc., 51 Wn.2d 18, 21, 315 P.2d 295 (1957); 6 E. town of Gorst. The drug pushers and users often outnum- McQuillin,Municipal Corporations§ 24.66,at 562(3d ed. 1980). bered the studio's regular patrons. Under either the lan- SState v. Boren,42 Wn.2d 155, 163,253 P.2d 939 (1953);State v. Gedarro, 19 guage of the Kitsap County ordinance or the nuisance Wn.App.826,832,579 P.2d 949(1978). 6RCW 7.48.130. 140 KITSAP COUNTY v. KEV, INC. June 1986 June 1986 KITSAP COUNTY v. KEV, INC. 141 106 Wn.2d 135,720 P.2d 818 106 Wn.2d 135,720 P.2d 818 statutes, the illegal activities at Fantasy's were so pervasive ' to tion. The United States Supreme Court has explained that the studio was a public nuisance. IssuE Two. that the reason prior restraints are presumed invalid is because "'a free society prefers to punish the few who abuse CONCLUSION. The trial court properly abated Fantasy's rights of speech after they break the law than to throttle because it was a public nuisance. The trial court erred them and all others beforehand."11 however, in permanently enjoining those who operated and [2] The permanent injunction issued here punishes only controlled Fantasy's from operating any other lawful dance a few, and only after they abused their First Amendment studios in Kitsap County. freedoms. It is not a prior restraint, at least to the extent Key bases its challenges to the permanent injunction on that it permanently abates the activities at Fantasy's. The the premise that nude dancing is constitutionally protected order was issued after Fantasy's opened, after the violations activity. It is true, as the United States Supreme Court has occurred, and after the trial court concluded that abate- held, that nude dancing is protected by the First Amend- ment was the only way to stop the illegal activities at Fan- ment.7 That protection, however, is not absolute.8 While tasy's. the communication of a nude dancer may be entitled to We thus hold that the trial court's order was correct First Amendment protection, the nudity itself is conduct insofar as it permanently enjoined Fantasy's from operating and subject to the police powers of the State.9 As this court in Kitsap County. That injunction, as it pertained to Fan- stated in that connection in Seattle v. Buchanan, 90 Wn.2d tasy's, also correctly included Key, Inc., Kevin Fjerstad, 584, 597, 584 P.2d 918 (1978): Norman Adams, BSA, Inc., and Russell Eggert. [United States Supreme Court cases] have either ex— In this connection we observe that the County sued Key, pressly or tacitly acknowledged that [nudity] is subject to Inc., rather than Fantasy's itself. An injunction issues reasonable regulation, even when it is done as an incident against persons, rather than against a business as such.12 to that expression which is protected by the First Amendment. Corporations as well as natural persons, however, may be Key does not challenge the time, place and manner enjoined from acting in violation of law." restrictions imposed by ordinances 92 and 92—A. Rather, Key, Inc., was properly named as a defendant and Key challenges the injunction itself by claiming that it is an 10State v. Coe, 101 Wn.2d 364, 372, 679 P.2d 353 (1984) (quoting with impermissible prior restraint on protected speech. Prior approval from Seattle v.Bittner, 81 Wn.2d 747,756,505 P.2d 126(1973) (quoting restraints are "'official restrictions imposed upon speech or Emerson, The Doctrine of Prior Restraint, 20 Law & Contemp. Probs. 648 other forms of expression in advance of actual publica- 1 Vance v. Universal Amusement Co., 445 U.S. 308, 316 n.13, 63 L. Ed. 2d (1955)). 7Schad v. Mount Ephraim, 452 U.S. 61, 65-66, 68 L. Ed. 2d 671, 101 S. Ct. 2176 a1). 413, 100 S. Ct. 1156,reh'g denied, 446 U.S. 947,64 L. Ed. 2d 804, 100 S. Ct. 2177 r (1980),quoting Southeastern Promotions,Ltd. v. Conrad,420 U.S.546,559,43 L. Ed.2d 448,95 S.Ct. 1239(1975). 8Doran v. Salem Inn,Inc., 422 U.S. 922,932,45 L. Ed. 2d 648,95 S.Ct. 2561 (1975). 1243 C.J.S. Injunctions § 39 (1978); Vermillion v. State ex rel. Carman, 210 Miss. 255, 263, 49 So. 2d 401 (1950); Fleckenstein Bros. Co. v. Fleckenstein, 66 9Chisman, at 813; see also Curtis v. Seattle, 97 Wn.2d 59, 63, 639 P.2d 1370 N.J. Eq.252,253,57 A. 1025(1904). (1982);Seattle v. Buchanan,90 Wn.2d 584,597,584 P.2d 918(1978). "See 10 W. Fletcher,Private Corporations § 4858 (rev. perm. ed. 1978);Sun- daco,Inc. v. State, 463 S.W.2d 528(Tex.Civ. App. 1970). 142 . KITSAP COUNTY v.KEV,INC. June 1986 { June 1986 KITSAP COUNTY v.KEV,INC. 143 • 106 Wn.2d 135,720 P.2d 818 106 Wn.2d 135,720 P.2d 818 included in the injunction because that corporation alleg- memorialized by any writing or promissory note, and edly owned and operated Fantasy's. The other parties were Eggert was totally ignorant of any of the normal business also properly included in the injunction because of their facts that would affect the purchase of a bona fide busi- ness . . . Eggert testified that he assumed all of the obli- gations of Key, Inc. without being aware of what those [W]henever an injunction, whatever its nature may be, is obligations were. , directed to a corporation, it also runs against the corpor- The court found Adams was the true owner of the Lucky ation's officers, agents, employees and servants, provided Lady and the moving force behind it and BSA, Inc., and they have notice of its issuance, even though they were not made parties defendant to the suit, were not served that Adams' control over the parties mentioned, including Eggert, warranted their inclusion in the injunction. It held: with notice of the application, and did not receive the same notice of the granting of the injunction as did the The application or scope of the relief granted herein corporation. should be ascertained by those actually shown to be the (Footnote omitted.) 10 W. Fletcher Private Corporations § real parties is [sic] interest. In this respect the Court has 4875, at 339 (rev. perm. ed. 1978); see also CR 65(d). in essence pierced Key, Inc.'s corporate veil. When this is done, Adams is shown to be the real owner and force Under this rule, Kevin Fjerstad (who was listed on Fantasy's license application as the sole officer, director and behind Key, Inc. and Fantasy's. Furthermore, with respect to Fantasy's, Key, Inc., Fjerstad, BSA, Inc., shareholder of Key, Inc.) clearly was properly enjoined Eggert and Adams have acted in concert with one from operating Fantasy's in Kitsap County. The trial court another. listed several additional facts that led it to include the We agree with the trial court's decision to enjoin all of other parties in the injunction order. It noted that Adams the aforesaid from operating Fantasy's in Kitsap County. found the site for Fantasy's, paid the rent for 5 months The rest of the injunctive order, however, cannot be while remodeling was in process and paid the rent after the upheld. The trial court permanently enjoined Fjerstad, studio was closed; that Adams hired Fjerstad to manage Eggert, BSA, Inc., and Adams from operating any erotic Fantasy's, provided the money for opening Fantasy's and dance studio in Kitsap County. Injunctions must be tai- promised to pay Fjerstad a salary; that Adams appeared at ! bored to remedy the specific harms shown rather than to Fantasy's on a weekly basis, and during those visits took enjoin all possible breaches of the law.14 To the extent that money from the business and "exercised complete control"; the order prevents the parties named from operating a law- and that Fantasy's succeeded financially only so long as ful business in Kitsap County, it can be viewed as an Adams fed money into it. invalid prior restraint.15 This is not to say, however, that The undercover officer testified that Russell Eggert came an appropriately drafted ordinance could not restrict or into Fantasy's several times to see if business was as bad as prevent the relicensing of these people and the corporation Fjerstad claimed. The trial court observed that Eggert, who because of their previous operations. managed a topless studio called the "Lucky Lady" in Fed- The analysis herein also disposes of the remaining issues eral Way, acquired Kev's assets after Fantasy's closed. The court described the transaction as being at less than arm's "See Davis v.Romney,490 F.2d 1360, 1370(3d Cir. 1974). length: 15See T. Spelling&J.Lewis,Injunctions § 290, at 583 (1926) (it is a univer- Eggert testified that the assets of Key, Inc. were taken sally accepted rule that when a proper case for injunctive relief is presented, the in consideration of forgiveness of a debt and that he injunctive coercion should be confined to unlawful acts or courses of conduct). intended to operate the business. The debt was not 1 144 - STATE v.STROUD June 1986 ` June 1986 STATE v.STROUD 145 • a 106 Wn.2d 144,720 P.2d 436 106 Wn.2d 144,720 P.2d 436 raised. In sum, the trial court's injunction is proper insofar } a revolver in the backseat of the defendants' vehicle. The as it permanently enjoined the operation of Fantasy's by I officer then searched the entire passenger compartment, Key, Inc., and its agents and officers, but is inappropriate including several unlocked containers and the unlocked to the extent that it goes beyond that. glove compartment. Affirmed as modified. Superior Court: The Superior Court for Lewis County, DOLLIVER, C.J., and UTTER, BRACHTENBACH, DORE, PEAR- No. CR 82-6654, David R. Draper, J., entered a judgment SON, CALLOW, GOODLOE, and DURHAM, JJ., concur. , of guilty on March 3 and June 6, 1983. 1 Supreme Court: Holding that the search of the vehicle did not violate the defendants' privacy rights under Const. art. 1, § 7, the court affirms the judgment. Teri M. Dettmer and Olson, Althauser & Dettmer, for appellants. James Miller, Prosecuting Attorney, and Nelson E. [No. 51501-8. En Banc. June 12, 1986.] Hunt, Deputy, for respondent. THE STATE OF WASHINGTON, Respondent, V. BILLY , GOODLOE, J.—Early in the morning of December 3, 1982, STEVEN STROUD, ET AL, Appellants. Deputies Withrow -and Mauermann of the Lewis County [1] Searches and Seizures — Warrantless Search — State Sheriff's office observed a parked vehicle next to a vending and Federal Protection. Const. art. 1, § 7 affords individuals machine in a closed Chevron gas station. The headlights greater protection against warrantless searches than does the Fourth Amendment. were on and the car's engine was running. One of the defendants, Billy Steven Stroud, was standing beside the [2] Searches and Seizures — Automobiles — Warrantless vending machine, while the other defendant, Herbert Lee Search — Incident to Arrest of Occupant — Scope. Immedi- ately after arresting an occupant of a vehicle and taking him into Caywood, stood in the swing of the open passenger door, a custody, the police may under Const. art. 1, § 7 conduct a warrant- less couple of feet away from Stroud. search of the passenger compartment of the vehicle. The police At the time the deputies arrived, the door of the vending must, however, obtain a warrant before searching a locked glove machine appeared to be open. When Stroud saw the depu- compartment or any locked container discovered during the search ties, he shut the door and grabbed a key which was in the of the passenger compartment. (State v. Ringer, 100 Wn.2d 686, is vending machine door lock. One of the deputies asked overruled insofar as it is inconsistent.) Stroud for the key, and Stroud complied, handing over a [Note: Only 4 Justices concur in all of the above statements.] homemade key apparently designed to open vending DOLLIVER, C.J., concurs in the result only; DURHAM, DORE, ANDERSEN, machine locks. The officers decided to frisk both defend- and CALLOW,JJ., concur by separate opinion. ants, and found a second homemade key on Stroud and found that Caywood's coat pocket contained several dollars Nature of Action: The defendants were charged with possession of controlled substances and with being felons in worth of change. The officer arrested the defendants for possession of a firearm. After arresting the defendants for theft, advised them of their rights, handcuffed them, and theft and placing them in the police car, a police officer saw placed them in the back of the patrol car. 1' lfib2 793 FEDERAL REPORTER, 2d SERIES jy V KEV, INC. V. KITSAP COUNTY 1053 legal value of the arguments advanced is v CIEs u 793 F2d 1053(9th Clr.19a6) III. of operator's challenge to county's exotic irrelevant to the subjective motivation be- hind those arguments. The courts below COSTS AND ATTORNEYS' FEES4\1\ KEV, INC., Plaintiff-Appellant, dancing regulations, where operator was applied the correct standard, finding "bad ON APPEALVC v reinstated as corporation following cure of faith." Because Eisenman has advanced 14,5J Mrs.Peoro seeks double costs and KITSAP COUNTY and the Honorable ��problems with state authorities,and cer- credible arguments that those findings attorneys' fees on appeal. We can award date to of reinstatement provided for back such relief only if the result is obvious or o issiol and John Horsley. County al., date of reinstatement to date of dissolu- nowere incorrect, we decline to overturn Y Commissioners of Kitsap, etc., et al., them. if the claims of error are wholly without Defendants-Appellees. lion. merit.'" Orange Belt District Council of Eisenman's fourth argument is that we Painters No. .48 v. Kashak, 774 F.2d 985, ) No. 84-4088. 2. Constitutional Law�258t o can impose fees "only in exceptional cases 991 (9th Cir.1985) (quoting Malhiot v. Fundamental requirement of due ro- j Southern Californiaited States Court of Appeals, P l and for dominatingreasons of justice.' Retail Clerks Un- Ninth Circuit. seas is that statute clearly delineate con- ,Opening Brief at 11 (quoting ion,735 F.2d 1133, 1137(9th Cir.1984)). If duct its proscribes. U.S.C.A. Const. United States v. Standard Oil Co., 603 Eisenman had challenged the invalidation Argued and Submitted Aug. 8, 1985. Amend. 14. • F.2d 100, 103 (9th Standard Cir.1979) (quoting 6 J. of his lien before us, his conduct would Decided July 7, 1986. Moore, W. Taggartclearly have met this standard. But he has 3. Constitutional Law story or) & J. Wicker, Moores finally ceased to contest the merits of this To avoid discriminatory arbitrary Federal Practice 1154.77[2], at 1709-11 dispute; before us, he challenged only the Operator of erotic dance facility chal- enforcement,due process requires that law (1972))) quotation marks omitted). assessment of fees for his multiplicative lenged constitutionality of countyordi- set forth reasonably But M)(internal treatise, and the cases Eisen- litigation precise standards for tactics. Nevertheless,we think it nance regulating nonalcoholic topless danc law enforcement officials and triers of fact man relies on, such as Alyeska Pipeline appropriate to assess double costs and at- ing establishments. The United States Dis- to follow. U.S.C.A.Const Amend. 14. Service Co.v. Wilderness Society,421 U.S. torneys' fees against Eisenman for this trict Court for the Western District of 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), appeal. He has presented only frivolous Washington, Barbara J. Rothstein, J., de- 4. Constitutional Law ea82(3) refer only to the equitable power of the arguments. We view this appeal as just nied operator's motion for injunctive and Where First Amendment freedoms are judiciary to assess fees. They have no another stage in his long abuse of the declaratory relief, and operator appealed. at stake, greater degree of specificity and place in this case, where the award of fees federal judicial system. Although we rec- The Court of Appeals, Pregerson, Circuit clarity of laws is required than would oth- rested on a specific statute, 28 U.S.C. ognizethe frustration Mr. Eisenman feelsJudge, held that: (1) provisions of ordi- 1, 14. be needed. U.S.C.A.Conat.Amends. ¢ 1927. The policy arguments that re attheinvalidation of hislien in bankruptcy, nance defining erotic dance and prohibiting 1' 14'strain a court from making fee awards in e- the fairness of the bankruptcy system, as dancers from fondlin and caressin an applied to him,is not at issue here. In our g g Y 5. Obscenity�2.5 its own discretion are simply inapplicable patron were not unconstitutionally vague;Congress has mandated awards, society many disputes are resolved by a stud reaslation wplac defined Bross !,1'' ; courts. One of the fundamental require- (2)county could license operators and danc- dance studio ze fixed place of business as when has the has manda es fee this case. era; (3)five-day delay4 ` ments of a judicial system is finality. Ei- Y Period between danc- which emphasized and sought,through one • i Finally,in the circumstances argues that his opposi- er's filing for application for license and senman has willfully chosen to ignore the grant of license unconstitutionallybur- tron'sr more dancers,ule ro ,arouse or excitepa- tto �'ti tion to the lien avoidance procedure and his final bankruptcy decision against him; he sexual desires, provided adequate ;filing of the notice of he pendens cannot be should pay the costs that willfulness has dened the dancer's First Amendment standard for enforcement and gave fair • a basis for a fee award because he acted in imposed on Mrs. Peoro. ughts; (4) requirements of ordinance that warning to business it targeted,and there- accordance with the prescribed procedural The appellees shall recover their taxable operatorsof erotic dance studios maintain exhibits erotic dancing with intent to rules. This is yet another frivolous claim. costs,which shall be doubled. In addition, dancers, for inspection Sanctions were not imposed because he they shall recover reasonable attorneys' leg by court, withstood arouse sexual desires of his patrons would filed an improper they fees against the appellant for the appeal. constitutional challenge; and(5)regulation know that his business fell within purview p per notice; were im- g PPe of manner in which dancingcould be exhib posed because it was improper to file a For purposes of this case, the amount of of ordinance. U.S.C.A. Const.Amends. 1, attorneys'fees shall be determined byaffi- ited imposed reasonable time, place, and 14 notice at all. 28 U.S.C. § 1927 provides manner restrictions and did not violate • for sanctions when proceedings are multi- davits of the appellees,which shall be filed within thirty days, and by any opposition First Amendment. 6. Obscenity e=2.5 j plied vexatiously. It is obviously irrelevant that Eisenman complied with the prose thereto, which may be filed by appellant Affirmed in part, reversed in part. Fact that under as place's definition of dures. In fact, his compliance within twenty days thereafter. erotic dance studio as of business P probably AFFIRMED. which emphasized and sought,through one his attempts to delay more success- Dissolution Federal Courts ea13 or more dancers, to arouse or excite pa- madeful. Dissolution as corporation of operator Iron's sexual desires, prosecutor alleging w In short, Eisenman has raised only friv- o S KEY RUMRERSYSLlM of live entertainment facility due to its violation of ordinance would be required•to olous arguments against the orders of the failure to comply with state corporate li- prove intent of operator of business, did courts below. We affirm those orders. censing regulations did not divest district not by itself render ordinance void for court of jurisdiction on ground of mootness vagueness. U.S.C.A.Const.Amends. 1, 14. • 1054• 793 FEDERAL REPORTER, 2d SERIES KEY, INC. v. KITSAP COUNTY 1055 Cite as 793 F2d 1033(9th Clr. 1966) 7. Obscenity 4=2.5 13. Constitutional Law 4=90(1) granting of license; delay unreasonably transfers or sexual favors on premises of Provision of county erotic dance regu- Regulation is content neutral for First prevented dancer from exercising First erotic dance studios, and thus, ordinance batons stating that no dancer shall fondle Amendment purposes if it is justified with- Amendment rights while application was was reasonable time, place, and manner or caress any patron and no patron shall out reference to content of regulated pending. U.S.C.A.Const.Amend. 1. restrictions allowable under First Amend- fondle or caress any dancer was not void speech. U.S.C.A. Const.Amend. 1. 20. Constitutional Law 4=90.4(3) ment. U.S.C.A. Const.Amend. 1. s for vagueness; provision was easily under- 14. Constitutional Law 4a90.4(3) Five-day delayin stood to prohibit sexual conduct between Y granting license to dancers and patrons whom dancers intend- County's erotic dance ordinance aimed operator of erotic dance studio did not bur- Jack R.Burns,Burns&Meyer,Bellevue, ed to arouse sexually while dancers were at alleviating undesirable social problems den operator's First Amendment rights; Wash., for plaintiff-appellant. acting in scope of their employment at erot- that accompany erotic dance studios, in- delay was justified on ground that topless is dance studio, and to find violation of eluding drug dealing and prostitution, was dancing establishments were likely to re- Ronald A. Franz, Deputy Pros. Atty., prohibition against caressing and fondling, "content neutral" for First Amendment quire significant reallocation of law en- Port Orchard,Wash.,for defendants-appel- j 1 prosecutors would be required to prove purposes. U.S.C.A.Const.Amend. 1. forcement resources. U.S.C.A. Const. lees. dancer or patron engaged in specified act, See publication Words and Phrases Amend. 1. An Appeal From United States District for other judicial constructions and fondling or caressing,with intent to sexual- definitions. 21. Counties�55 Court For the Western District of Wash- ly arouse or excite. U.S.C.A. Const. 15. Constitutional Law�90.1(4) Under Washington law, lack of sever- ington. .i Amends. 1, 14. 1 f Licensing requirement raises First ability clause in erotic dance ordinance of 8. Constitutional Law 40'90(1) Amendment concerns when it inhibits abili- county did not require that entire ordinance Before PREGERSON and WIGGINS, Degreetyor inclination to engagebe declared unconstitutional by virtue of Circuit Judges, and SCHNACKE, District . of protection First Amendment in protected unconstitutional provision establishing five- Jud e, affords speech does not vary with social expression. U.S.C.A. Const.Amend. 1. day delay between erotic dancer's filing of g value ascribed to that speech by courts. 16. Constitutional Law 4=90.1(4) application for license and county's grant- PREGERSON,Circuit Judge. U.S.C.A.ConstAmend. 1. To avoid violating First Amendment ing of license, where effectiveness of ordi- Key, Inc.challenges the constitutionality 0. Constitutional Law aw90.4(3) protections, licensing requirement must nance did not depend on five-day delay peri- of a Kitsap County ordinance regulating Topless dancing is protected expres- Provide narrow, objective, and definite od. non-alcoholic topless dancing establish- i Sion under First Amendment. U.S.C.A. standard to guide licensing authority. U.S. 22. Constitutional Law 0=90.4(3) ments and appeals from the district court's Const.Amend. 1. C.A. Const.Amend. 1. County ordinance requiring operators order denying its motion for injunctive and I 10. Constitutional Law 4=90.4(3) 17. Constitutional Law 4=90.4(3) of erotic dance studios to maintain business declaratory relief. We affirm in part and '. County could within ambits of First records and complete list of all dancers,for reverse in part. Although First Amendment coverage inspection by county, although imposing Amendment require operators of exotic extends to topless dancing, it does not dance studios and erotic dancers to obtain limited burden on operators of erotic dance BACKGROUND guarantee right to engage in protected ex- licenses. U.S.C.A.Const.Amend. 1. studios, withstood constitutional challenge; Appellant, Key, Inc., ("Key"), aWash- presaion at all times and places or in any burden on dance studios was significantly ington corporation, leased premises in Kit- manner that may be desired. U.S.C.A. 18. Constitutional Law 90.4(3) outweighed by advancement of county's in- sa Count Const.Amend. 1. County erotic dance licensing regula- P Y("the County")to operate a live ii.. � terest in preventing infiltration of orga- entertainment facility called "Fantasies," • 11. Constitutional Law 4=90(3) tion which required operators and dancers nized crime into studios. U.S.C.A. Const. which was to feature topless dancing and to supply county with various data,includ- Amend. 1.Governmental entity, when acting to ing name,address,phone number,and prin- sell non-alcoholic beverages to adults for further legitimate ends of community,may cipal occupation, aliases, past and present, 23. Constitutional Law e=90.4(3) consumption on the premises. In earlyPi ' , impose incidental burdens on free speech. of dancers,and business name and address County erotic dance ordinance which 1983,Key secured the appropriate business t. U.S.C.A. Const.Amend. 1. where dancer intended to dance, did not prohibited dancers and patrons from fon- licenses and began remodeling the premis- I ' 12. Constitutional Law 4=90(3) infringe upon any First Amendment rights; dling and caressing each other, required es to commence business operations. G" While regulations that restrain speech none of information required by county that all dancing take place at least ten feet On January 24, 1983, the Kitsap County on basis of content presumptively violate unreasonably diminished inclination to seek from patrons and on stage raised at least Board of Commissioners proposed Ordi- " license and county had no discretion in , two feet from floor,and prohibited patrons nance No. 92, entitled "An Ordinance Re- k'- , First Amendment content neutral time, issuinglicenses. U.S.C.A.ConstAmend.1. from tipping dancers did not significantly place, and manner regulations are accept- burden garding Erotic Dance Studios,"to regulate burden First Amendment rights, and did adult entertainment facilities. The stated able so long as they are designed to serve 19. Constitutional Law 4=90.4(3) advance purpose of preventing patrons and purpose of the proposed ordinance was to ` substantial governmental interest and do Although county could require exotic ! not unreasonably limit alternative avenues dancers to be licensed, county could not dancers from negotiating for narcotics regulate topless dancing to minimize per- of communication. U.S.C.A.Const.Amend. impose five-day delay period between clam- States Honorable Robert H. Schnacke, United fornia,sitting by designation. 1. er's filing of application and county's States District Judge,Northern District of Cali. 1 . 1056 793 FEDERAL REPORTER, 2d SERIES KEV, INC. v. KITSAP COUNTY 1057 • Cite as 793 Fad 1053(slh Ctr.1916) ceived side effects, such as illegal drug stances, Section 9g; fondling or caressing this reason,we find the County's motion to or more dancers, to arouse or excite the ' dealing, fights, and prostitution, which between dancers and patrons, Section 9k; dismiss for mootness itself to be moot. patron's sexual desires." The ordinance We,therefore,have jurisdiction to hear the classifies erotic dance studios according to would purportedly threaten the communi- and the payment or receipt of gratuities, ty's well-being. On February 7, 1983, the Sections 91 and m. present appeal. the manifest intent of the operator of the County held a public hearing on the pro- On June 9, 1983, Key opened the busi- II. Standard of Review studio. Thus,one who exhibits erotic danc posed ordinance. Law enforcement offi- ness to thepublic. On Januarying with an intent to arouse the sexual cials from Kitsap and surrounding counties 14, fail- This case presents questions of law, desires of his patrons would know that his testified that"soft drink, topless dancing" Key was administrativelyp dissolved for fail- which we review de novo. See United ure to comply with state corporate licens- States v. McConney, 728 F.2d 1195, 1202 business falls within the purview of the establishments in adjacent counties were ordinance. The fact that the' prosecutor ing regulations. But,after curing the defi- (9th Cir.) (en bane), cert. denied, - U.S. the sites of crime problems such as prosti- ciencies, Key was reinstated as a corpora- , -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). must prove the intent of the operator of tution and drug dealing. The Countythe business does not by itself render the tion on April 24, 1984. The certificate of III. Merits statute void for vagueness. See Boyce Mo- Board of Commissioners passed the pro- reinstatement was back-dated to and took A. Due Process for Lines, Inc. v. United States, 342 U.S. posed ordinance that same day. effect as of the January 14, 1984 dissolu- Key contends that ordinance section 2e 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367 i'' On February 14, 1983, Key filed suit, tion date. pursuant to 42 U.S.C.§ 1983,in the United (defining erotic dance studios)and section (1952)(statute requiring drivers transport- After shearing on Key's motion fora 9k(prohibiting dancers from"fondling"or in explosivesK States District Court for the Western Dis- preliminary injunction, the district court g' to avoid crowded thorough-h- t t Washington,seeking a preliminary "caressing"any patron)are unconstitution- fares, "so far as practicable," not void for held the closing hour provision of the ordi- ally vague and thus violate due process vagueness since statute requires a knowing and permanent injunction and a declaratory nance unconstitutional, but refused to en- judgment finding Ordinance No.92 uncon- requirements. We disagree. violation); United States v. Doyle, 786 join enforcement of other provisions of the F.2d 1440, 1443(9th Cir.1986)(presence of stitutional. Three weeks later,the County ordinance pending a hearing on the merits. [2-41 A fundamental requirement of Board of Commissioners passed Ordinance On July 19, 1984, following a hearing on due process is that a statute must clearly scienter requirement in statute prohibiting No. 92-A as an amendment to Ordinance delineate the conduct it proscribes. sale,transportation,or receiving of wildlife 1 No. 92. Key then filed an amended com- the merits,the district court found the ordi- Grayned v. City of Rockford,408 U.S.104, without a permit issued by the state en- plaint challenging, on constitutional name constitutionalled in its entirety.' Key 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 vagueness chat- timely appealed. ables law to withstand grounds, the provisions of Ordinance No. (1972). Vague laws are offensive because lenge). Thus, section 2e provides an ate- i; 92 as amended by Ordinance No. 92-A they may entrap the innocent by not giving quate standard for enforcement and gives i} DISCUSSION fair warning ("the ordinance"). Primarily, Key alleges ( fair warning of what conduct is prohibited. to the business it targets. that topless dancing is entitled to first I. Jurisdiction Id.; Papachristou v. City of Jacksonville, [71 Section 9k provides that: "No danc- j amendment protection and that the ordi- [11 The County contends that the dis- L.Ed.2d U.S. 156, 162, 92 S.Ct. 839, 843, 31 er shall fondle or caress any patron and no ij nance unduly restricts the exercise of that trict court did not have jurisdiction when it L.Ed.2d 110(1972). Further, to avoid dis- any �� protected right. patron shall fondle or caress dancer." entered judgment on July 19, 1984. The criminatory or arbitrary enforcement, due "Caressing" and "fondling" are ordinary, The ordinance defines an "erotic dance County argues that because Key was dis- process requires that laws set forth reason- commonly used terms. Both words de- j: studio"as"a fixed place of business which solved on January 14, 1984, there were no ably precise standards for law enforcement scribe forms of affectionate touching and emphasizes and seeks,through one or more adverse parties and, therefore, no case or officials and triers of fact to follow. are not limited in meaning to affectionate dancers, to arouse or excite the patrons' controversy when the district court entered j Smith v. Goguen, 415 U.S.566,572-73,94 touching that is sexual. See Webster's sexual desires." Sections 2c and 3a. The judgment on July 19, 1984. For the same S.Ct. 1242, 1246-47,39 L.Ed.2d 605(1974); Third New International Dictionary 339, ordinance regulates erotic dance studios in reasons,the County argues that this court 1 Grayned 408 U.S. at 108-09, 92 S.Ct. at 883(1971). However,in the context of the • various ways. It requires licensing of erot- does not have jurisdiction in the present 2298-99. Moreover, where first amend- other definitions provided in the ordinance, is dance studios and their dancers. Sec- appeal. We disagree. ment freedoms are at stake,an even great- e.g., 2c("[d]ancer-a y § person who dances lions 3-6. It also requires that dancers Although Key was "administratively dis- I er degree of specificity and clarity of laws or otherwise performs for an erotic dance II and patrons be at least eighteen years of solved"on January 14, 1984 for failure to is required. Grayned, 408 U.S.at 108-09, studio and who seeks to arouse or excite ; age; that dancing occur on a raised plat- comply with state corporate licensing regu- 92 S.Ct.at 2298-99; see also Erznoznik v. the patrons' sexual desires" (emphasis form at least ten feet from patrons; and lations, it was reinstated as a corporation• City of Jacksonville, 422 U.S. 205, 217- added)), section 9k is easily understood to l that all books and records of erotic dance on April 24,1984 after curing its problems 18, 95 S.Ct. 2268, 2276-77, 45 L.Ed.2d prohibit sexual conduct between dancers i 125 (1975); Goguen, 415 U.S. at 573, 94 and patrons whom the dancers intend to (! studios be open to official inspection. Sec- with the state authorities. The certificate bons 9d, e, i,j, and Section 10. The ordi- of reinstatement provided that Kev's rein- S.Ct. at 1247; Ashton v. Kentucky, 384 arouse sexually while the dancers are act- mance also proscribes the sale or possession statement dated back to and took effect as U.S. 195, 200, 86 S.Ct 1407, 1410, 16 ing in the scope of their employment at the of intoxicating liquor and controlled sub- of the January 14, 1984 dissolution. For L.Ed.2d 469(1966). erotic dance studio. 1. On March 21,1985,however,the district court provision of the ordinance,section 9f,was un- [5,61 Section 2e defines an erotic dance Further,to find a violation of the prohibi- ordered that its judgment be corrected to in- constitutional. The County does not challenge studio as as "a fixed place of business tion against "caressing" and "fondling,"' dude its earlier holding that the closing hour this holding on appeal. which emphasizes and seeks, through one prosecutors must prove that a dancer or • 1058 793 FEDERAL REPORTER, 2d SERIES KEV, INC. v. KITSAP COUNTY 1059 ate as 793 F.2d 1053(91h Cir. 1986) • patron engaged in a specified act, i.e., fon- that statement. The County fails to recog- speech." Id. at 929(emphasis in original) Key contends that the ordinance violates dling or caressing with the intention to nize that five other justices in Young con- (quoting Virginia Pharmacy Board v. the first amendment because: (a) it limits sexually arouse or excite. Section 9k thus eluded that the degree of protection the Virginia Citizens Consumer Council, the location where dancers may perform; provides an adequate standard for law en- first amendment affords speech does not ( Inc., 425 U.S.748,771,96 S.Ct. 1817, 1830, (b) it burdens a dancer's performance by forcement officers. Cf. Kolender v. Law- vary with the social value ascribed to that 48 L.Ed.2d 346(1976)).3 requiring a license, prohibiting the accept- ion,461 U.S.352,358,103 S.Ct.1855,1858, speech by the courts. Id. at 73 n. 1(Pow- ;75 L.Ed.2d 903(1983)(ordinance requiring ell,J., concurring), 84-85, 96 S.Ct. at 2453 114] The stated purpose of the County's arse fromo gratuities, restraining eroticme mdanct P Y ers exercising their first amendment persons who loiter or wander the streets to n. 1, 2459-60 (Stewart, J., dissenting, ordinance is to alleviate undesirable social rights until they are licensed,and prohibit- provide "credible and reliable" identifies- joined by Brennan, J., Marshall, J., and problems that accompany erotic dance stu- ing erotic dancers, in exercising their first tion and account for their presence held Blackmun J.). This view continues to goy- ! dios,not to curtail the protected expression amendment rights, from mingling with pa- unconstitutional for failing to provide ade- ern. Several circuits that have considered -namely, the dancing.' At a hearing on trons; and (c) it places a reporting and quate law enforcement standards and to this question have adopted the position as- the proposed ordinance, the County inspection burden upon a business based give fair warning of proscribed conduct). cribed to the five justices in Young. See presented evidence that drug dealing,pros- solely on its first amendment activities. Since sections 2e and 9k provide adequate United States v. Guarino, 729 F.2d 864, titution, and other social ills accompany law enforcement standards and give fair 868 n. 6 (1st Cir.1984) (en bane); Avalon topless dancing establishments. See Cali- a. License Requirements • warning of the proscribed conduct, the ap- Cinema Corporation v. Thompson, 667 fornia v.LaRue,409 U.S.109,111,93 S.Ct. The ordinance requires that all operators pellant's vagueness argument fails. • F.2d 659,663 n. 10(8th Cir.1981)(en bane); I 390, 393, 34 L.Ed.2d 342 (1972). Law en- of erotic dance studios and al]erotic dare- V Hart Bookstores, Inc. v. Edmisten, 612 forcement officials from Kitsap and neigh- ers obtain licenses from the County. To • B. First Amendment Violations F.2d 821, 826-28 (4th Cir.1979), cert. de- boring counties testified that these prob obtain a license, a prospective operator vied, 447 U.S. 929, 100 S.Ct. 3028, 65 lems had been associated with erotic dance Courts have considered topless dancing must supply the County with various data to be expression, subject to constitutional including: his or her name,address,phone L.Ed.2d 1124(1980). studios in other counties. The Supervisor protection within the free of the Vice Control Departmentnumber, and principalp speech and press [9-131 However, determining that top of Kings occupation; similar County testified that close contact between guarantees of the first 2 and fourteenth less dancing is protected expression does information for all partners in the venture; dancers and patrons facilitates prostitution. amendments. See Schad v. Borough of not end our inquiry. Although first and descriptions of the proposed establish- ! Mount Ephraim, 452 U.S.61,65,101 S.Ct. amendment coverage extends to topless The County has a legitimate and substan- ment,the nature of the proposed business, 2176, 2180, 68 L.Ed.2d 671 (1981); Doran dancing,it"does not guarantee the right to tial interest in preventing social problems and the magnitude thereof. A dancer ap- v.Salem Inn,Inc.,422 U.S.922,932-33,95 [engage in the protected expression]at all that accompany erotic dance studios and plying for a license must provide the Coun- S.Ct. 2561,2568-69,45 L.Ed.2d 648(1975); times and places or in any manner that • threaten the well-being of the community. ty: his or her name, address, phone num- Chase v. Davelaar, 645 F.2d 735, 737(9th may be desired." See Heffron v. Interna- See Ellwest Stereo Theatres, Inc. v. Wen- ber, birth date, "aliases (past and Cir.1981). tional Society for Krishna Consciousness, ner,681 F.2d 1243, 1246(9th Cir.1982)(up- Present)," and the business name and ad- G- Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, holding regulation requiring"open booths" dress where the dancer intends to dance. 1. [e] The County erroneously asserts 2564,69 L.Ed.2d 298(1981). A governmen- in adult film arcades). Thus, we conclude [15,161 It is well established that the that even if topless dancing were protected tal entity,when acting to further legitimate that the ordinance is content-neutral be- government may, under its r by the first amendment,it is not entitled to ends of the community, may impose inci- cause it is justified without "reference to require licensing of various activities power a the same degree of protection afforded dental burdens on free speech. City of the content of the regulated speech." See volvingconduct speech clearly at the core of first amend- y protected a an firstn Renton v. Playtime Theatres, Inc., - Renton, 106 S.Ct. at 929; Virginia Phar- amendment. See, e.g., American Mini ment values. In support of its assertion, U.S.-, 106 S.Ct.925,928-29,89 L.Ed.2d macy,County relies on Justice Stevens's 29(1986). While regulations that restrain 425 U.S. at 771, 96 S.Ct. at 1830. Theatres, 427 U.S. at 62, 96 S.Ct at 2448; statement in the plurality opinion in Young3. See also United States v. 0 ,391 U.S.367, motes a substantial government interest that speech on the basis of content presumptive- 377,88 S.Ct. 1673, 1679,20 neutralL.Ed.2dregulation 672(1968) would be achieved less effectively absent the v.American Mini Theatres, Inc., 427 U.S. ly violate the first amendment, "'content- I'. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 1976, (holdingmps thato incidental contentburden that regulation." , ( ) neutral' time, place, and manner regale- imposes an on speech is suffi- that"society's interest in protecting[erotic tions are acceptable so long as they are ciently justified if: [I]it is within the consutu• 4. Section 1 of the ordinance states: t governmen- tional power of the government; [2]it furthers Purpose. The an important or substantial governmental inter- rpo purpose of this ordinance is expression] is of a wholly different, and designed to serve a substantial lesser, magnitude than the interest in un- tal interest and do not unreasonably limit est; [3] the governmental interest is unrelated to regulate erotic dance studios to the end that trammeled political debate...." 427 U.S. alternative avenues of communication." to the suppression of free expression; and [4] the many types of criminal activities frequent- at 70, 96 S.Ct. at 2452. However, only Id 106 S.Ct.at 928. A regulation is "con- the incidental restriction on first amendment ly engendered by such studios will be cur- three other justices (Chief Justice Bur freedoms is no greater than is essential to the tailed. However it is recognized that such . g , tent-neutral"If it is'justified without ref- furtherance of that interest). In United States v, regulation cannot de facto approach prohibi- er Justices White and Rehnquist)concurred in erence to the content of the regulated Albertini,-U.S.-,105 S.Ct.2897,2907,86 tion. Otherwise a protected form of expres- L.Ed.2d 536(1985),the Supreme Court clarified sion would vanish. This ordinance represents 2. The first amendment to the United States Con- made applicable to the states by the Due Process the fourth O'Brien factor,noting that"an inci- a balancing of competing interests: reduced stitution provides in relevant part: "Congress Clause of the Fourteenth Amendment. Ed- dental burden on speech is no greater than is criminal activity through the regulation of shall make no law...abridging the freedom of wards v.South Carolina, 372 U.S.229,235,83 -essential, and therefore is permissible under erotic dance studios versus the protected speech,or of the press...." This Amendment is S.Ct.680,683,9 L.Ed.2d 697(1963). OBrien, so long as the neutral regulation pro- rights of erotic dancers and their patrons. 1060 793 FEDERAL REPORTER, 2d SERIES KEV, INC. v. KITSAP COUNTY 1061 Cite 66793 F2d 1053(91h Clr.1906) • Shuttlesworth v. City of Birmingham,394 the information required bythe Count b. Business Records Requirementstage y on a sta a raised at least two feet from the r U.S. 147, 150-51, 89 S.Ct. 935, 938-39, 22 unreasonably diminishes the inclination to (221 Sections 9b and 9c of the ordinance floor; and (3) prohibits patrons from tip- L.Ed.2d 162 (1969); Tyson & Brother— seek a license.' Moreover,the County has require operators of erotic dance studios to ping dancers.' United Theatre Ticket Offices,Inc.v.Ban- no discretion in issuing the licenses. Sec- maintain business records and complete The alleged 273 U.S.418,430,47 S.Ct.426,428,71 P e purpose ofo thesen dancers r � bons 4 and 7 provide that both licenses lists of all dancers, for inspection by the ments is to prevent patrons and L.Ed. 718 (1927) ("The authority to regu- would be issued automatically by the Coun- County.' from negotiating for narcotics transfers late the conduct of a business or to require ty within five days. Although the business records require- and sexual favors on the premises of an a license,comes from a branch of the police power...."); see also Genusa v. City of (17,181 Further, both license require- ments may impose a limited burden on erotic dance studio. Separating dancers 619ments serve valid governmental purposes. operators of erotic dance studios, the bur- from patrons would reduce the opportunity Peoria, 1203, 1212-13 Mini Cir. By monitoring erotic dancers and erotic den is significantly outweighed by the ad- for prostitution and narcotics transae- 1980)(court relied on American The- tions.1e Similarly, prohibiting dancers and atria in upholding simple license require dance studios, the County can allocate law vancement of the County's interest in pre- enforcement resources to ensure com ll ventingthe infiltration of organized crime patrons from engaging in sexual fondling meat for operators of adult bookstores). A P . g and caressing in an erotic dance studio licensing requirement raises first amend- ance with the ordinance. Thus, we con- into erotic dance studios. The business mint concerns when it inhibits the ability• elude that the County may require opera- records requirements are no more burden- would probably deter of money prostitution." Pre tors of erotic dance studios and erotic danc- some than the requirements on a venting the exchange of money between or the inclination to engage in the protectedplaceddancers and patrons would also appear to expression. See Thomas v. Collins, 323 era to obtain licenses. i myriad of other businesses and substantial- reduce the likelihood of drug and sex trans- ly further the County's interest. Thus, U.S. 516,65 S.Ct. 315,89 L.Ed. 430(1945) (19-211 However, although the County actions occurring on regulated premises. (requirement that union organizers register may require dancers to be licensed, the these regulations do not violate the first with state unconstitutionally inhibits free County has failed to demonstrate a need amendment. Further,these regulations do not signifi • - expresaion). Further, a licensingrequire- c. Re Regulations Affecting Dancing candy burden first amendment rights. for section 7d's five-day delay period be- g g g While the dancer's erotic message may be ment must provide"narrow,objective,and tween the dancer's filing of an application (231 The ordinance also regulates the slightly less effective from ten feet, the ii definite standards to guide the licensing and the County'a granting of a license. manner in which dancing may be exhibited, ability to engage in the protected expres-authority." Shuttlesworth, 394 U.S. at The ordinance unreasonably prevents a The ordinance: (1) prohibits dancers and sion is not significantly impaired." Erotic f 150-51, 89 S.Ct.at 938-39. dancer from exercising first amendment patrons from fondling and caressing each dancers still have reasonable access to i. Here, there is no suggestion that the rights while an application is pending. Be- other; (2) requires that all dancing take their market. See Ellwest Stereo The- i. i licenses required either to operate, or to cause the County has not justified the five- place at least ten feet from the patrons and sires,681 F.2d at 1246(open booths regula- 1 perform in,a topless facility would be diffi- day delay permitted by the statute with p cult to obtain or would for some other respect to the dancer's license application, 8. Section 9b requires that: 11. As we construe section 9k to prohibit only it!` No later than March 1 of each year an sexual fondling and caressing occurring in an reason discourage either a prospective op- this provision is unconstitutional' Thus, erotic dance studio licensee shall file a veri- erotic dance studio, we reject Kev's argument crater from exhibiting dancing, or a pro- we hold section 7d of the ordinance uncon- fied report with the Auditor showing the li- that the ordinance is overbroad. Our holding , spective dancer from performing. None of 8titutional.7 censee's gross receipts and amounts paid to today does not address the dancers' and the dancers for the preceding calendar year. patrons'right of privacy to associate freely withil S. Kev argues that requiring the dancer to pro- The County contends that topless dancing es- An 9c provides: each other under other circumstances. We hold vide a list of"aliases(past and present)"unjusti- tablishments are likely to require a significant An erotic dance studio licensee shall main- simply that because of the County''legitimate y privacy. lain and retain for a period of two(2)years fiabl invades the dancer's rivac . In Genusa reallocation of law enforcement resources. As and substantial interest in preventing the dem- v. CIry of Plroria,619 F.2d 1203(7th Cir.1980), the district court concluded, "b the names,addresses,and ages of all persons [ r such employed as dancers by the licensee. onstrated likelihood of prostitution occurring in the Seventh Circuit invalidated a similar re- resources in Kitsap County are limited, five erotic dance studios, the County may prevent quirement for operators of adult book stores, days to adjust is reasonable. There is no reason 9. Section 9i provides: dancers and patrons from sexually touching noting that the "alias disclosure requirement for a new studio operator not to apply for a All dancing shall occur on a platform in- each other while the dancers are acting in the involves an invasion of privacy not justified by license one week before he plans to open his I tended for that purpose which is raised at scope of their employment. 1 the zoning interest and is not otherwise justi- facility." Thus,there seems to be an important least two feet(2')from the level of the floor. lied." Id.at 1216. justification for the five-day waiting period in Section 9j provides: 12. In International Society for Krishna Con- In the instant case, the alias disclosure re- licensing dance establishments. No dancing shall occur closer than ten feet sciousness,452 U.S.at 650-51,101 S.Ct.at 2565- i quirement for dancers is justified by the Coun- 7. In striking down section 7d,we note that the (10')to any patron. 66,the Supreme Court noted that"consideratibn ty's substantial interest in preventingSection 9k provides: of a forum'' prostitu- Kitsap ordinance contains a severability clause. No dancer shall fondle or caress any patron special attributes is relevant to the lion in erotic dance studios. The requirement Under Washington law, a statute is not to be constitutionality of a regulation since the signif- will enable the County to monitor more effec- declared unconstitutional in its entirety unless and no patron shall fondle or caress any icance of the governmental interest must be Lively dance studios employingknown P dancer. lutes prosti- the remainder of the act is incapable of achiev- Sections 91 and 9m provide: assessed in the light of the characteristic nature i ing the legislative purposes. Brockett V. Spo- No patron shall directly pay or give any and function of the particular forum involved." i kane Arcades,Inc.,—U.S.—,105 S.Ct.2794, gratuity to any dancer[and No dancer shall Given the characteristics of erotic dance studios; 6. Kev also asserts that the five-day delay in 2803,86 L.Ed.2d 394(1985). Because the effec- solicit any pay orgratuity from any patron." the ordinance does not impair the dancer's abili- ` granting the license to operate an erotic dance livens''of this ordinance does not depend on ty to display her art. studio burdens the operators first amendment the five-day period between the filing of an 10. The County presented testimony that close rights. We conclude,however,that the County application for a license and its mandatory contact between dancers and patrons facilitated presented a sufficiently compelling justification granting by the County, we need not strike these transactions. for this delay. down the ordinance in its entirety. i • 1062 793 FEDERAL REPORTER, 2d SERIES DASH v. N.L.R.B. _363 Cite as 793 F2d 1062(9111 Clr. 1966) tion did not affect access to adult films). law judge determined that employer had 4. Labor Relations 6=561 been filed in retaliation for discharged t Similarly,while the tipping prohibition may committed unfair laborpractice bydis- Evidence regarding salesman's salesman's exercise of 8 g prob- protected rights, deny the patron one means of expressing charging salesman and by appealing to lems with customers and with company where Board determined that appeal had , 1 pleasure with the dancer's performance, state court following award of unemploy- personnel was insufficient to support deter- reasonable basis in both fact and law,with- sufficient alternative methods of communi- ment compensation benefits, but the Na- mination by National Labor Relations out making express finding regarding em- cation exist for the patron to convey the tional Labor Relations Board reversed,and Board that employer would have terminat- ployer's motive. National Labor Relations same message. Thus, the regulations are salesman appealed. The Court of Appeals, ed salesman for his abusive behavior, de- Act, § 8(aX1, 3), as amended, 29 U.S.C.A. reasonable time,place,and manner restric- Pregerson, Circuit Judge, held that: (1) spite employee's union activities, where § 158(aX1,3). tions that only slightly burden speech. evidence did not support Board's finding problems with customers or with company IV. Conclusion that employer would have terminated em- personnel caused by employee's aggressive 7. Labor Relations e=598 nature were no different from those caused National Labor Relations Board will Except for the five-day delay between ployee for aggressive and abusive behav- neither set aside settlement a reement nor ior,despite employee's union activities,and by other members of sales force,there was g the dancer's filing of an application for a Pevidence that employer condoned aggres- find unfair labor practice based on preset • - license and the mandatory granting of the (2)remand to Board was required to deter- license by the County,Kitsap County's reg- mine whether requiring salesman to submit sive and abusive behavior by sales repre- tlement conduct, absent finding of either ulationa of erotic dance studios are reason- to psychiatric examination before returning sentatives, provided they were successful, failure to comply with settlement agree- and salesman was extraordinarily success- ment or postsettlement unfair labor prac- able time, place, and manner restrictions, from medical leave was presettlement un- , fair labor practice. ful and enjoyed great popularity among his tice. " justified without reference to the content ri customers, particularly where employer 8. Labor Relations 4=687 i of the protected expression. Thus,we RE- Reversed in part and remanded. took no steps to discipline salesman before i' VERSE as to the provision permitting the Remand to National Labor Relations Ii i` l J.Blaine Anderson,Circuit Judge,filed his termination. National Labor Relationsii five day delay in granting.the dancer's g ' Act,§8(aX1,3),as amended,29 U.S.C.A.§ Board was required to determine whether license and AFFIRM the other provisions. dissenting opinion. employer committed presettlement unfair 158(aX1,3). labor Each side to bear its own costs. practice by requiring employee to 5. Labor Relations 4;0518 submit psychiatric examination before re- ' w 1. Labor Relations 4=679 Instructions for telephone hearing in turning to work following medical leave, o;WV MINI SYSTEM Court of Appeals gives deference t0 j unemployment matter, directing employer upon determination by Court of Appeals National Labor Relations Board where { to immediately notify office manager if em- that employer committed postsettlement vi- Board and administrative law judge make ; ployer wished to "have witnesses present olation. National Labor Relations Act, contrary findings,although Court still con- ! at the hearing; (requires personal appear- § 8(aX1, 3), as amended, 29 U.S.C.A. eiders administrative law judge's findings ance hearing), be represented by attorney § 158(aX1,3). 1 and weighs them with other evidence op- or another person; (requires personal ap- Stanley A. DASH, Jr., Petitioner, posing Board's decision. pearance hearing),"presented material fact issue as to whether employer's failure to be Lawton & Cates, Bruce M. Davey, Mad- v. 2. Labor Relations'2=539 represented by counsel and to call witness- ison, Wis., for petitioner. NATIONAL LABOR RELATIONS General Counsel bears burden of prov- es at telephone hearing was result of mis- Ellen Boardman, N.L.R.B., Washington, BOARD. Respondent, understanding of instructions, and thus, D.C., for respondent.ing that employee's exercise of protected National Labor Relations Board properly D I Lawyers Co-operative Publishing Com- activity was motivating factor in employ- Eugenia D. Ulterino, Rochester, N.Y., ee's termination where discharged employ- refused to enjoin as unfair labor practice for intervenor-respondent.piny. Intervenor-Respondent. g P Y employer's appeal in unemployment mat- tl, ee alleges that discharge was unfair labor No. 85-7267. ter,alleging that refusal to grant employer On Petition to Review an Order of the ' l practice. National Labor Relations Act, adjournment to obtain counsel and witness- National Labor Relations Board. �t } United States Court of Appeals, § 8(aX1, 3), as amended, 29 U.S.C.A. es violated employer's due process rights. Ninth Circuit. § 158(aX1,3). U.S.C.A. Const.Amends.5, 14. Before ANDERSON and PREGERSON, : Argued Feb. 4, 1986. 3. Labor Relations 41=,560 6. Labor Relations's 687 Circuit Judges, and SOLOMON,* Senior Submitted April 7, 1986. Showing by preponderance of evidence Remand to National Labor Relations District Judge. Decided July 7, 1986. that employer would have terminated em- Board was required to determine,after resl'' - ployee despite employee's protected activi- olution of employer's state court appeal PREGERSON, Circuit Judge. tyis affirmative defense to charge that challenging award of unemployment com- A. Dash,Jr.appeals gStanley from a deci- 11 Salesman filed unfair labor practice employee's discharge was unfair labor pensation benefits, whether appeal had sion and order of the National Labor Rela- , against former employer, alleging employ- practice. National Labor Relations Act, *Honorable Gus J.Solomon,Senior United States Designation. er had discriminated against salesman for § 8(aX1, 3), as amended, 29 U.S.C.A. District Judge. District of Oregon, Sitting by his union activities. The administrative § 158(aX1,3). 796 • O'DAY v. KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 797 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 misconduct is serious. His former clients would likely have tion of speech than the first and fourteenth amendments to the failed in their malpractice claim had the fabrication of the United States Constitution and a determination of no infringe- letter not been discovered. ment under the state constitution necessitates a similar finding under the federal constitution. Fourth, though there was little evidence of mitigating factors, there was substantial evidence of aggravating fac- [4] Constitutional Law — Freedom of Speech — Nude Activ- ity — Overbreadth. Although nude expression is protected by tors. The hearing officer properly considered the serious ness of the misconduct and Allotta's blemished record. Const. art. 1, § 5, nude conduct is not protected. Regulation of [6] The hearing officer concluded, and the Board agreed, nude conduct is not overly broad if nude expression is excepted g from the regulation either by express language or by judicial con- that because the probability of future transgressions was struction. not insubstantial, Allotta "is not fit to practice law and [5] Statutes — Validity — Constitutional Rights — Construe- should be disbarred". Memorandum Opinion, at 15. The tion — Effect. A statute will be construed as constitutional if evidence supports this sanction. possible. Once so construed, the construction becomes a part of the Samuel J. Allotta is hereby disbarred. statute preventing application of the statute in an unconstitutional manner. PEARSON, C.J., BRACHTENBACH, DOLLIVER, CALLOW, GOOD- [6] Obscenity — Statutory Provisions — Definition — LOE, and DURHAM, JJ., and PETRIE, J. Pro Tem., COMM*. Patently Offensive. A legislative definition of "obscene" as DORE, J., concurs in the result. patently offensive will be construed to require offensiveness to be measured against community standards. [7] Constitutional Law — Freedom of Speech — Place Restriction — Stage Requirement. A requirement that an entertainer's exposure of certain body parts occur on a stage of at least 18 inches in height that is removed at least 6 feet from patrons is a regulation of conduct and not expression. [8] Criminal Law — Statutes — Vagueness — Test. A penal [No. 52573-1. En Banc. January 21, 1988.] statute is not void for vagueness if an ordinary person can under- stand what conduct is prohibited and, most importantly, it KAREN M. O'DAY, ET AL, Respondents, V. KING COUNTY, includes minimal guidelines to prevent arbitrary and discrimina ET AL, Petitioners. tory enforcement. [9] Constitutional Law — Equal Protection — Classifications [1] Certiorari — Review — Nature. Upon appeal from a superior — Minimal Scrutiny — Test. Legislation which does not affect court's exercise of its statutory certiorari power (RCW 7.16.030), a constitutional right or create an inherently suspect class need the appellate court makes a de novo review of the record submit- only withstand rational basis scrutiny, i.e., it must apply alike to ted to the superior court. all members in a class, there must be a reasonable basis for distin- [2] Constitutional Law — State and Federal Provisions — guishing between those within and those without the class, and the Consideration. Constitutional questions properly briefed and classification must have a rational relationship to the purpose of submitted to the court will be resolved in the light of state consti- the legislation. tutional provisions prior to consideration of the federal consti- [10] Statutes — Emergency Clause — Validity — Moot Issue. tution. - A party challenging an emergency clause must show prejudice [3] Constitutional Law — Freedom of Speech — State and resulting from the earlier effective date of the legislation. Federal Provisions. Const. art. 1, § 5 provides greater protec- [11] Criminal Law — Former Jeopardy — Punitive Nature — 798 O'DAY v. KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 799 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 License Revocation. For purposes of double jeopardy, a license overbroad under the state and federal free speech guaran- revocation is not punitive if the revocation has a rational connec- ties and invalidated other portions of KCC 6.08.050 for tion to some purpose other than retribution or deterrence and the denying respondents equal protection of the law. We sanction is not excessive under the circumstances. reverse. Nature of Action: Four persons charged in district BACKGROUND court with violating a nude dancing ordinance sought In 1976, King County enacted ordinance 2625, codified at extraordinary relief in superior court, alleging that the chapter 6.08 of the King County Code. The 1976 ordinance ordinance was unconstitutional. regulated adult entertainment establishments, but explic- Superior Court: The Superior Court for King County, itly excluded taverns and other establishments maintaining No. 85-2-20087-0, Warren Chan, J., on March 5, 1986, a liquor license. The ordinance included "standards of con- invalidated portions of the ordinance and dismissed the duct" governing the presentation of nude and semi—nude prosecutions. entertainment in nonalcohol—serving, adult entertainment Supreme Court: Holding that the ordinance does not establishments (soda pop clubs), and made the business infringe on the constitutional freedom of speech if a proper licensee responsible for any violations. limiting instruction is given in any prosecution thereunder, On May 28, 1985, the King County Council enacted ordi that the ordinance does not deny equal protection of the nonce 7216, which made substantial changes in KCC 6.08. law, that enforcement of the ordinance will not result in Among other things, the new ordinance accomplished the double jeopardy, and that the validity of an emergency following: (1) added a section of findings designed to sup- clause on the ordinance is moot, the court reverses the dis port the need for the regulations, KCC 6.08.005; (2) missals and remands to the district court for trial. required managers and entertainers working at any public place of amusement offering nude or semi—nude entertain- Norm Maleng, Prosecuting Attorney, and Kevin M. ment to obtain a license, KCC 6.08.024; and (3) made Raymond, Deputy, for petitioners. employees and entertainers working in soda pop clubs Jack R. Burns and Burns & Hammerly, P.S., for respon- responsible for violating the standards of conduct, sub- dents. jected violators to criminal penalties, KCC 6.08.120, and to license revocation or suspension, KCC 6.08.100. UTTER, J.—King County appeals 'a superior court order The "standards of conduct" remained virtually un- invalidating portions of county ordinance 7216, which regu- changed, continuing to prohibit employees and entertainers lates the presentation of nude and semi—nude entertain- from performing or simulating (a) certain sexual acts; (b) ment in public places of amusement. The superior court the touching of certain body parts; and from (c) displaying dismissed criminal complaints brought against respondents certain body parts. KCC 6.08.050(A)(5). The ordinance for allegedly violating the "standards of conduct" estab- provides several exceptions, including KCC 6.08.050(A)(6), lished by section 8 of the ordinance, and now codified at which allows display of certain body parts when the display King County Code (KCC) 6.08.050(A)(5)(a), (b), and (c).1 occurs on a stage 18 inches high and 6 feet from the nearest The court invalidated the standards as unconstitutionally patron (stage requirement); and KCC 6.08.050(D), which requires that the statute not be construed to prohibit a 'For purposes of clarity and consistency with the parties' briefs, we will refer variety of constitutionally protected expression, including to the various sections of the ordinance using King County Code citations. 800 O'DAY v.KING COUNTY Jan. 1988 Jan. 1988 O'DAY v.KING COUNTY 801 • 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 exhibitions or dances that are not obscene, KCC 6.08- plaints against the respondents with prejudice. The court .050(D)(3) (nonobscene dance exception). The 1985 ordi- concluded that the standards of conduct reached protected nance created a new section, KCC 6.08.050(G), which expression, and thus were unconstitutionally overbroad in removed the blanket exemption for taverns and establish- violation of the state and federal constitutional right to free ments holding liquor licenses, but continued to exempt speech. The court further held that the discriminatory them from the "standards of conduct and operation" provi- treatment afforded entertainers in soda pop establishments sion, KCC 6.08.050. Because of this exemption, only soda created a classification that violated the state and federal pop club entertainers are subject to criminal penalties and right to equal protection of the laws. The court rejected, license revocation/suspension for violating the "standards however, respondents' challenge to the validity of the 1985 of conduct." ordinance's emergency clause and their contention that The four respondents work as licensed entertainers at a imposition of both criminal penalties and license revoca- soda pop club located in King County. In late August and tion/suspension constitutes double jeopardy in violation of �, early September of 1985, respondents were charged in Fed- the Fifth Amendment and article 1, section 9 of the Wash- eral Way District Court with violating the "standards of ington Constitution. conduct."2 Respondents denied the allegations and also This court granted King County discretionary review. challenged the ordinance's constitutionality in a pretrial The County challenges the superior court's conclusions as motion to dismiss, which the district court denied. They to free speech and equal protection. Respondents renew then petitioned the King County Superior Court for review. additional free expression claims rejected by the superior During the petition's pendency, the King County Licensing court. They challenge the definition of obscenity contained Department suspended respondents' licenses to engage in in KCC 6.08.050(E) and argue that the stage requirement, topless dancing within King County. KCC 6.08.050(A)(6), cannot be sustained as a reasonable Upon issuing a writ of review, and after a hearing and time, place, and manner regulation. Respondents also argument, the superior court dismissed the criminal corn- renew their emergency clause challenge and their double 2Respondent claim. Respondent Sandra Robinson was charged with violating standards(A)(5)(a), [1] In considering the challenges to the conclusions (b),and (c) for allegedly performing "a table dance during which she exposed her breasts below the areola,rubbing the same against a customer's face,exposed her entered by the court below, we note that under RCW 7.16- pubic hair,touched the genital area of a customer,and performed an act simulat- .030 the "writ of review" filed with the superior court is a ing oral sex." Respondent Shelly Stallard was charged with violating standards(A)(5)(a)and writ of certiorari. Seattle u. Williams, 101 Wn.2d 445, 453- (b) for allegedly performing "a dance during which she sat on a customer's lap, 55, 680 P.2d 1051 (1984). Thus, the superior court acted in rubbed her buttocks up and down against the customer's genital area,simulating an appellate capacity, rather than as a trial court. See sexual intercourse,and rubbed her breasts against the customer's face." Thomsen u. King Cy., 39 Wn. App. 505, 514, 694 P.2d 40 Respondent Karen M. O'Day was charged with violating standards (A)(5)(a), (b), and (c) for allegedly performing "a table dance during which she rubbed her (1985). We therefore conduct a de novo review of the buttocks on a customer's legs,exposed her pubic hair and performed an act simu- court's conclusions. Smith v. Skagit Cy., 75 Wn.2d 715, 718, lating oral sex." 453 P.2d 832 (1969); Thomsen u. King Cy., 39 Wn. App. at Respondent Kimberly Belshaw was charged with violating standards(A)(5)(b) 515. and (c) for allegedly performing "a table dance during which she exposed her breasts below the areola, exposed her pubic hair and vaginal area, rubbed her breasts against a customer's hands and face, and rubbed her legs and chest FREE SPEECH CLAIMS against a customer's genital area." Findings of fact 2-5,Clerk's Papers,at 140. [2, 3] This court has a duty, where feasible, to resolve 1 802 O'DAY v. KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 803 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 constitutional questions first under the provisions of our American Mini Theatres, Inc., 427 U.S. 50, 73 n.1, 49 L. own state constitution before turning to federal law. State Ed. 2d 310, 96 S. Ct. 2440 (1976) (Powell, J., concurring); v. Coe, 101 Wn.2d 364, 373-74, 679 P.2d 353 (1984). Besides Key, Inc. u. Kitsap Cy., 793 F.2d 1053, 1058 (9th Cir. 1986); our responsibility to interpret Washington's Constitution, Kitsap Cy. v. Key, Inc., 106 Wn.2d 135, 140, 720 P.2d 818 we must furnish a rational basis "for counsel to predict the (1986). However, although the First Amendment protects future course of state decisional law." State v. Gunwall, 106 the communication and expression of a nude dancer, public Wn.2d 54, 60, 720 P.2d 808 (1986). This opinion proceeds nudity itself is conduct subject to regulation. Kitsap Cy. v. under a Washington Constitution analysis, noting the par- Key, Inc., 106 Wn.2d at 140; see also Key, Inc. v. Kitsap allels and differences between the state and federal consti- Cy., 793 F.2d at 1058. We now hold that article 1, section 5 tutions where relevant. Because article 1, section 5 provides similarly protects nude expression, but not nude conduct. greater protection of speech than the first and fourteenth See Seattle v. Buchanan, supra. amendments to the United States Constitution, our finding We agree with the superior court, which apparently con- that the ordinance is constitutional under article 1, section eluded that the "performances" respondents allegedly 5 necessitates a similar finding under the First Amendment. engaged in constitute pure conduct, unprotected by free State v. Coe, supra. speech guaranties. However, an overly broad statute that Here, the parties have not raised or argued the issue of sweeps within its proscriptions protected expression is whether article 1, section 5 provides more protection to unconstitutional under both the Washington and United obscene expression than does the First Amendment. Nor States Constitutions. Federal Way Family Physicians, Inc. does the record indicate the presence or absence of specific t'. Tacoma Stands Up for Life, 106 Wn.2d 261, 267-68, 721 harm arising from the obscene expression that is restricted P.2d 946 (1986); State u. Reyes, 104 Wn.2d 35, 43, 700 P.2d by KCC 6.08. Given this dearth of analysis and evidence on 1155 (1985). this issue, we choose not to reach in this case the issue of Because of the "sensitive nature of protected expression," whether article 1, section 5 protects obscene expression of and the need to prevent criminal sanctions from chilling this kind. Therefore, in this case we will proceed on a fed- constitutionally protected expression, both this court and eral analysis of the narrow issue of whether obscenity is the United States Supreme Court have fashioned a special protected speech. standing rule. New York v. Ferber, 458 U.S. 747, 768-69, 73 A L. Ed. 2d 1113, 102 S. Ct. 3348 (1982); see Reyes, at 43. If OVERBREADTH the County's regulations impermissibly burden protected expression, respondents have standing to challenge the reg- [4] Article 1, section 5 of the Washington Constitution ulations' overbreadth even though "their activity is within and the first and fourteenth amendments to the United States Constitution protect freedom of speech. Pure con- the permissible scope of the [ordinance] and even if such duct, on the other hand is not protected. E.g., Seattle v. constitutional overbreadth can be considered 'harmless Buchanan, 90 Wn.2d 584, 584 P.2d 918 (1978). Nude and error' as applied to them." State v. Regan, 97 Wn.2d 47, 52, semi-nude dancing come within the protection provided by 640 P.2d 725 (1982); see also Broadrick v. Oklahoma, 413 the first and fourteenth amendments to the United States U.S. 601, 611-12, 37 L. Ed. 2d 830, 93 S. Ct. 2908 (1973). Constitution. See, e.g., Schad v. Mount Ephraim, 452 U.S. Washington's free speech guaranty requires us to pay 61, 65, 68 L. Ed. 2d 671, 101 S. Ct. 2176 (1981); Young v. especially close attention to allegations of overbreadth. Article 1, section 5 establishes freedom of speech as a pre- 804 O'DAY v. KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 805 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 ferred right. Reyes, at 43; Coe, at 374. Unlike the First the immediate floor level and removed at least six feet Amendment, article 1, section 5 categorically rules out prior from the nearest patron. restraints on constitutionally protected speech under any KCC 6.08.050(A)(6). Section 6.08.050(D)(3), also referred to circumstances. Coe, at 374-75. Regulations that sweep too in standard (c) above, is part of an overall limitation, which broadly chill protected speech prior to publication, and provides: thus may rise to the level of a prior restraint. Coe, at 373. [Chapter 6.08] shall not be construed to prohibit: The United States Supreme Court, on the other hand, 1. Plays, operas, musicals, or other dramatic works considers the overbreadth doctrine "strong medicine", which are not obscene ["nonobscene dramatic works employing it only as a "last resort." New York v. Ferber, exception"]; 458 U.S. 747, 769, 73 L. Ed. 2d 1113, 102 S. Ct. 3348 (1982). 2. Classes, seminars and lectures held for serious scien tific or educational purposes ["scientific or educational Because KCC 6.08 regulates conduct, and not merely purposes exception"]; or speech, an overbreadth challenge under the First Amend- 3. Exhibitions or dances which are not obscene ["non- ment cannot succeed unless the overbreadth is both real obscene dance exception"]. and substantial in relation to the ordinance's plainly legiti- KCC 6.08.050(A)(5) contains three separate and distinct mate sweep. Ferber, at 770; Broadrick, at 615. Because the standards of conduct, each of which deals with entirely dif- Washington Constitution is less tolerant than the First ferent expressive activities. Only standard (c), which pro- Amendment of overly broad restrictions on speech, we must hibits the display of certain body parts, expressly refers to apply the standard of article 1, section 5 in considering the stage requirement and the nonobscene dance exception. whether KCC 6.08 is overbroad. The superior court found that standards (a) and (b) pro- f. Standards of Conduct hibit the simulation of certain acts, even if the entertainer Respondents challenge as facially overbroad the "stan- is clothed, and that simulation of the proscribed acts dards of conduct" of KCC 6.08.050(A)(5): "reaches into the realm" of constitutionally protected expression. Therefore, the court concluded that the stan- No employee or entertainer shall perform acts of or dards of conduct impermissibly regulated protected expres- acts which simulate: a. Sexual intercourse, masturbation, sodomy, besti- sign. ality, oral copulation, flagellation, or any sexual acts The County challenges the court's conclusion, and argues which are prohibited by law ["standard (a)"]; that the ordinance's express reference to the stage require- b. The touching, caressing or fondling of the breasts, ment modifies all three standards of conduct. The County buttocks or genitals ["standard (b)"]; or asserts that the standards permit expressive conduct of all c. The displaying of the pubic hair, anus, vulva or genitals ["standard (c)"]; except as provided for in sub- division subject only to the requirements that it (1) not be division 6 of this subsection and section 6.08.050 D.3 of obscene and (2) occur on a stage. We disagree. Under the this chapter. clear language of the ordinance, only standard (c) contains Subdivision 6, referred to in standard (c) above, contains a a reference to the stage requirement. Moreover, the County "stage requirement", which provides that undoubtedly intended the stage exception to modify only [n]o employee or entertainer shall have their breasts standard (c). Each time the County sought to proscribe below the top of the areola, or any portion of the pubic display of those body parts, it made the identical reference hair, vulva or genitals, anus and/or buttocks exposed to to the subsection (A)(6) stage requirement. See KCC 6.08- view except upon a stage at least eighteen inches above .050(A)(5)(c); KCC 6.08.050(A)(1). The plain language of 806 O'DAY v. KING COUNTY Jan. 1988 Jan. 1988 O'DAY v.KING COUNTY 807 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 standards (a) and (b) applies regardless of whether the t: (the court will not construe statutes in a forced, narrow, or entertainer is clothed or not and regardless of whether thk overly strict manner so as to defeat the obvious intent of entertainer is on stage. lature). By themselves, the standards of conduct are overly broad the lthough the and reach protected expression. However, the nonobscene Although the standard (c) prohibition against the display dramaticof certain body parts expressly refers only to the exception works exception, the scientific or educational pur- poses exception and the. nonobscene dance exception of for nonobscene exhibitions and dances, the other exceptions for nonobscene expression also apply by their own terms. KCC 6.08.050(D), read together with the standards of con- Consequently, standard (c)'s prohibition does not apply if duct, can limit chapter 6.08's application to pure conduct (1) the display "of the pubic hair, anus, vulva or genitals" and obscene expression. occurs as part of nonobscene expression, as set out in KCC [5] Where possible and appropriate, we will strive to 6.08.050(D), and (2) as long as the display of these body construe a statute to uphold its constitutionality. Reyes, at parts occurs on a stage situated pursuant to KCC 6.08- 41. "If the invalid reach of a law can be cured, there is no .050(A)(6). Construed in this manner, the standards of con- reason to proscribe the statute's application to unprotected duct, read together with the exceptions of 6.08.050(D), do speech." Reyes, at 41. Here, a simple limiting construction not restrict protected expression. cures the possible overbreadth infirmities of KCC 6.08.050. Once this court construes a statute or ordinance, that Unfortunately, KCC 6.08.050 is not precisely drafted. We construction becomes as much a part of the legislation as if have no doubt, however, that the County intended to pro- it were originally written into it. State v. Regan, supra at scribe only obscene nude or semi-nude conduct, devoid of any expressive qualities and unprotected by article 1, sec- tion This court has authoritatively construed the regula- tion so that it is no longer susceptible of application to tion 5. We therefore construe the ordinance to restrict only protected speech. Gooding v. Wilson, 405 U.S. 518, 520, 31 conduct and unprotected obscene expression. Standards (a) and (b) proscribe the actual performance L. Ed. 2d 408, 92 S. Ct. 1103 (1972); Ferber, at 769 n.24. 3 or simulation of the listed conduct except to the extent that The standards of conduct are therefore not overbroad. the conduct occurs as part of nonobscene expression as 2. Definition of Obscenity defined in KCC 6.08.050(D)(1), (2), and (3). Arguably, the Respondents contend that the definition of obscenity list of nonobscene expressions does not expressly cover all contained in KCC 6.08.050(E) is overly broad and renders possible examples of protected expression, such as a singing the entire 1985 ordinance unconstitutional. Although performance, a comedian's routine, or the various types of respondents raise this issue for the first time on appeal,.we political expression. Nonetheless, we find that nonobscene will consider their challenge because we uniformly review "exhibitions", specifically exempted by subsection (D)(3), such issues when they concern a constitutional right. State sweeps within its protective ambit both the comedian's and v. Regan, 97 Wn.2d 47, 50, 640 P.2d 725 (1982). the singer's performances. The County could not have [6] Respondents invoke State v. Regan, supra, and con- intended to prohibit nonobscene political performances and tend that the "patently offensive" prong of the obscenity presentations. We therefore construe KCC 6.08.050(D) as definition (KCC 6.08.050(E)(2)) is unconstitutionally over- excepting nonobscene political expression along with the broad because it fails to require the measurement of offen- expressly listed examples of nonobscene expression. See, e.g., State v. Clark, 96 Wn.2d 686, 690, 638 P.2d 572 (1982) 3As mentioned above, this opinion does not reach the issue of whether article 1,section 5 protects obscenity because that issue was not presented by the parties. 808 O'DAY v. KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 809 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 siveness against community standards. In Regan, however, if they (1) are content neutral, (2) are narrowly tailored to this court held an obscenity definition that failed expressly serve a compelling state interest, and (3) leave open ample to require a patently offensive determination to be uncon- alternative channels of communication. Bering v. Share, stitutionally overbroad under article 1, section 5. Regan, at 106 Wn.2d 212, 234, 721 P.2d 918 (1986), cert. dismissed, 52-54. By contrast, respondents concede that the County's 93 L. Ed. 2d 990 (1987). definition contains the patently offensive requirement, bas- [7] Before we consider whether the stage requirement is ing their challenge only on the definition's failure to a valid time, place, and manner restriction, we must deter- expressly require offensiveness to be measured by contem- mine whether it regulates protected expression or whether porary community standards. it regulates only conduct. Pure conduct does not enjoy the The trier of fact must use the proper measure of protections of either article 1, section 5 or the First "patently offensive" to determine whether expression is Amendment. Seattle v. Buchanan, 90 Wn.2d 584, 584 P.2d obscene. The lack of the measure or detailed definition in 918 (1978). the express language of the statute does not cause the stat- Unlike similar local regulatory regimes that have been ute to be unconstitutional where it is possible to give the invalidated, the stage requirement does not prohibit nude trier of fact the necessary guidance. Applying the guidelines entertainment. See, e.g., Doran v. Salem Inn, Inc., 422 U.S. of the United States Supreme Court, see Miller v. Califor- 922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975); BSA, Inc. v. nia, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973); King Cy., 804 F.2d 1104 (9th Cir. 1986) (invalidating a Smith v. United States, 431 U.S. 291, 300-01, 52 L. Ed. 2d Pierce County ban on nude dancing); Mickens v. Kodiak, 324, 97 S. Ct. 1756 (1976), we hereby construe KCC 6.08- 640 P.2d 818 (Alaska 1982). The stage requirement allows .050(E)(2) as requiring "patently offensive" to be measured any type of expression by nude entertainers as long as the against community standards. The definition of KCC 6.08- nude expression is made a minimal distance from patrons. .050(E)(2) taken together with our authoritative construc- Respondents have failed to demonstrate how the stage tion is not unconstitutionally overbroad. See State v. requirement infringes on their right to free expression Regan, supra at 51-52. Of course the court must properly rather than simply their conduct. Cf. BSA, Inc. v. King Cy., instruct the jury to reflect this construction at respondents' 804 F.2d at 1111. The requirement is aimed not at expres- trial. sion, but only public sexual contact between entertainers B and patrons by keeping nude entertainers out of reach of STAGE REQUIREMENT the nearest patron. See BSA, Inc. v. King Cy., 804 F.2d at Respondents contend that the requirement of KCC 6.08- 111.1; Key, Inc. v. Kitsap Cy., 793 F.2d at 1061. We con- .050(A)(6) that certain body parts may not be exposed to elude that the 18-inch stage requirement of KCC 6.08 view except upon a stage at least 18 inches above the .050(A)(6) regulates only conduct, and not expression immediate floor level and removed at least 6 feet from the protected by article 1, section 5. nearest patron is not a valid time, place, and manner Both this court and the Ninth Circuit Court of Appeals restriction under article 1, section 5 and the First Amend- have upheld similar stage or distance requirements in ment. recent years based on determinations that the stage Article 1, section 5 regulations on protected expression requirements are valid time, place, and manner restrictions. may impose time, place, and manner restrictions, but only BSA, Inc. v. King Cy., 804 F.2d 1104 (9th Cir. 1986); Key, Inc. v. Kitsap Cy., 793 F.2d 1053 (9th Cir. 1986); Bolser Y. 810 O'DAY v.KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 811 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 State Liquor Control Bd., 90 Wn.2d 223, 580 P.2d 629 we find that KCC 6.08.050 is not unconstitutionally vague. (1978). In each of those cases the reviewing court ques- Respondents contend that various subsections of KCC tioned whether the stage requirement implicates freedom of 6.08.050 contain unreconcilable differences that force them expression at all, but then makes a time, place, and manner to guess which sections apply to their dance presentation, analysis. "[The stage requirement] does not diminish the thereby making them proceed at their own risk to assert expressiveness of nude entertainment. . . . Even assuming, their First Amendment rights. Respondents, however, have however, that the distance requirement does burden pro- created differences where none exist. For example, respon- tected expression, it is a valid place or manner regulation." dents characterize KCC 6.08.050(A)(1) as creating a right to BSA, Inc., at 1111. "[T]he dancer's erotic message may be dance in any manner or place, entirely unclothed, so long as slightly less effective from ten feet . . ." (Italics ours.) Key, the dance is not obscene. This broad "right" therefore con- Inc. u. Kitsap Cy., supra at 1061. "If [the stage require- flicts with the stage requirement, under which all nudity ment] is an infringement [of protected expression], we con- must occur on a stage. In reality, however, no conflict exists elude it is at most minimal." Bolser, at 228. Because of the because subsection (A)(1) prohibits exposing certain body lack of any colorable claim that the regulation involves parts to public view except as provided for by the stage expression, we will not give respondents the benefit of an requirement and by the exception for nonobscene dances or analysis that would consider the stage requirement as a exhibitions. time, place, or manner restriction. We hold that it regulates Respondents next contend that the broad "right" con- only conduct, which is not protected under article 1, section tamed in subsection (A)(1) conflicts with KCC 6.08.050- 5 or the First Amendment. (A)(5)(a) and (b), which respondents contend absolutely VAGUENESS prohibit sexual acts or touching, actual or simulated, [8] Respondents argue that KCC 6.08.050 is unconstitu- whether obscene or not. As we pointed out earlier in dis tionally vague as applied to them. Because respondents cite cussing respondents' overbreadth claim, KCC 6.08 in its entirety, including the "standards of conduct", is limited by no state authority and no state constitutional provision, we consider their void for vagueness challenge as based solely KCC 6.08.050(D)(1), (2), and (3), which exempts nonob scene expressive activities, including exhibitions or dances. on the United States Constitution. Under the Fourteenth Amendment, a penal statute is void for vagueness if it is KCC 6.08 gives respondents sufficient notice of what con framed in terms so vague that persons of common intelli duct is prohibited. gence must necessarily guess at its meaning and differ as to Respondents also challenge KCC 6.08 as vague because it gives discretion to enforcers to determine what is protected its application. Connally u. General Constr. Co., 269 U.S. 385, 391, 70 L. Ed. 322, 46 S. Ct. 126 (1926); Papachristou expression. The Fourteenth Amendment void for vagueness v. Jacksonville, 405 U.S. 156, 162, 31 L. Ed. 2d 110, 92 S. doctrine requires legislative bodies to define criminal sane - v. clearly, so that "ordinary people can understand what Ct. 839 (1972). The Supreme Court has repeatedly empha- sized that where First Amendment freedoms are at stake a conduct is prohibited and in a manner that does not greater degree of specificity and clarity of purpose is essen encourage arbitrary and discriminatory enforcement." Kol- tial. See, e.g., Erznoznik v. Jacksonville, 422 U.S. 205, 217— ender u. Lawson, 461 U.S. 352, 357, 75 L. Ed. 2d 903, 103 S. Ct. 1855 (1983). Notice, however, is not the most important 18, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975); Key, Inc. u. Kitsap Cy., 793 F.2d 1053, 1057 (9th Cir. 1986). However, aspect. Rather, the vagueness doctrine is most concerned with whether a legislature established minimal guidelines to - 812 O'DAY v.KING COUNTY Jan. 1988 Jan, 1988 O'DAY v.KING COUNTY 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 813 govern enforcement. Kolender, at 358. The guidelines !}`I . P.2d 230 (1983).5 All other classifications need only with- established by the County in KCC 6.08.050 evolve out of its . stand minimal, rational basis scrutiny, except for classifica- definition of obscenity, KCC 6.08.050(E), which like that tions that trigger an intermediate level of scrutiny under used in RCW 7.48A.010, conforms with federal require- article 1, section 12. See State v. Phelan, 100 Wn.2d 508, ments. See Miller v. California, 413 U.S. 15, 24, 37 L. Ed. 513, 671 P.2d 1212 (1983); see also In re Mayner, 107 2d 419, 93 S. Ct. 2607 (1973). We reject respondents' Four- Wn.2d 512, 516-17, 730 P.2d 1321 (1986). Our determina- teenth Amendment vagueness challenge to KCC 6.08.050. tion of whether a class is inherently suspect in the state of EQUAL PROTECTION Washington or whether a fundamental right explicitly or The County argues that the superior court erred in implicitly guaranteed by the Washington Constitution has invalidating portions of KCC 6.08 as violative of respon- been affected may differ from Supreme Court conclusions.6 dents' right to equal protection of the law under article 1, . As a general rule, however, the requirements of Washing- section 12 of the Washington Constitution and the four- ton's privileges and immunities provision are at least as teenth amendment to the United States Constitution. We stringent as those of the federal equal protection clause. agree, and hold that KCC 6.08 does not deny equal protec- Cosro, Inc., at 759; Petersen, at 444. tion to respondents. Because KCC 6.08.050(G) exempted taverns and estab- Despite substantial differences in wording, past decisions lishments holding liquor licenses from the standards of where counsel have not presented the court with an analy- conduct, the superior court reasoned that the County had sis of the history of our constitution and cases from other created two classes of adult entertainers, only one of which states have observed that the Fourteenth Amendment's is subject to criminal penalties for standard of conduct vio- equal protection clause and the privileges and immunities lations. The County does not dispute the fact that it dis- provision (Const. art. 1, § 12) of the Washington Declara- 5At least one scholar has pointed out that "Jacksonian equality provisions", tion of Rights provide similar protections.4 See, e.g., Cosro, such as article 1,section 12,differ in text,origin,and focus from the federal equal Inc. v. Liquor Control Bd., 107 Wn.2d 754, 759, 733 P.2d protection provision.Williams,Equality Guarantees in State Constitutional Law, 539 (1987). Lacking a persuasive argument to apply a dif- 63 Tex. L.Rev. 1195, 1206-08(1985).In addition,the Oregon Supreme Court has reviewed the history of Or. Const.art. 1, § 20, upon which our own article 1,sec- ferent analysis under the Washington Constitution, we have tion 12 is based,and concluded that the federal level of scrutiny analysis is imp- followed the federal equal protection analysis, under which propriate. In re Williams, 294 Or. 33, 42, 653 P.2d 970, 975 (1982). Because we apply strict scrutiny to any governmental classification respondents,like other claimants under article 1,section 12,have not made a well researched and persuasive argument on why we should recognize a distinction that creates an inherently suspect class or affects a funda- between the state and federal provisions, we will not take it upon ourselves to mental right. Petersen v. State, 100 Wn.2d 421, 444, 671 scrutinize the older state pronouncements cited as the source of Washington's 4 equal protection doctrine.See,e.g.,State v.Pitney,79 Wash.608,610, 140 P.918 Under the United States Constitution, a state shall not "deny to any person (1914);Redford v.Spokane St.Ry., 15 Wash.419,421,46 P.650(1896). within its jurisdiction the equal protection of the laws." U.S. Const. amend. 14, § 1.The Washington Declaration of Rights provides: 6See, e.g., Seattle v. State, 103 Wn.2d 663,672-73,694 P.2d 641 (1985) (hold- "No law shall be passed granting to any citizen,class of citizens,or corporation ing that Const.art. 1, § 19 provides additional protection for voting rights);State other than municipal, privileges or immunities which upon the same terms shall v. Rice, 98 Wn.2d 384, 399-400, 655 P.2d 1145 (1982) (under Const. art. 1, § 12, not equally belong to all citizens,or corporations." Const.art. 1,§ 12. the freedom from physical restraint is a fundamental interest for the purpose of equal protection analysis); Hanson v. Hutt, 83 Wn.2d 195, 201, 517 P.2d 599 (1973) (holding that even prior to the passage of the state Equal Rights Amend- ment,a classification based on sex is inherently suspect). F:: 'i: 814 , O'DAY v.KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 815 109 Wn.2d 796,749 P.2d 142 109 Wn.2d 796,749 P.2d 142 criminates between adult entertainers according to the type `'+ A patron must be at least 21 years old to enter adult enter- ?, of establishment that employs them. Consequently, we tainment establishments that serve alcohol, while to focus first on whether the superior court applied the proper patronize soda pop clubs one need only be 18 years old. It level of scrutiny in determining that the County could not is reasonable to distinguish between the two classes of justify its discriminatory classification. See Convention entertainers based on the age of their clientele. Finally, in Ctr. Coalition v. Seattle, 107 Wn.2d 370, 378, 730 P.2d 636 applying the third element, we conclude that the imposi- (1986). tion of criminal and license sanctions solely on soda pop [9] Having found that the standards of conduct imper- club entertainers and employees has a rational connection missibly burdened the fundamental right of free speech, the to the County's need to protect the younger patrons.7 II superior court applied strict scrutiny, requiring the County Because the County's decision to exempt taverns and to justify its classification by establishing that it served a premises holding a liquor license from the standards of compelling governmental interest. Respondents' freedom of ? conduct has withstood rational basis scrutiny, the County speech, however, has not been affected by the imposition of has successfully justified the discriminatory aspects of KCC criminal sanctions. We have adopted a limiting construc- 6.08.050. We reverse the superior court's order, and hold tion and held the standards of conduct constitutional. By that KCC 6.08.050 does not deny respondents equal pro- providing for criminal sanctions when a soda pop club tection of the law under article 1, section 12 or the Four- employee violates the standards, the County does not teenth Amendment. infringe upon the violator's right to free expression. While s OTHER CONSTITUTIONAL CHALLENGES license suspension and revocation deprive respondents of Respondents renew two additional constitutionally based their livelihood and, thus, constitute a serious sanction, challenges previously rejected by the superior court. First, license requirements and sanctions have not been shown to respondents contend that the entire 1985 ordinance is void infringe on any fundamental interest for the purpose of because the emergency clause unconstitutionally eliminated equal protection analysis. See Darrin v. Gould, 85 Wn.2d the people's referendum power guaranteed by article 2, sec- 859, 540 P.2d 882 (1975). Because respondents offer no tion 1 of the Washington Constitution. This challenge is other grounds for heightened scrutiny, the County's classi- without merit. To make a proper challenge respondents fication need only withstand rational basis scrutiny. Con- must look to the King County Charter's referendum provi- vention Ctr. Coalition, at 378. sion, King County Charter § 230.40, rather than article 2, To withstand rational basis scrutiny the classification section 1, which does not apply to municipal governments must (1) apply alike to all members in the designated class, ` such as King County. Citizens for Financially Responsible (2) be based on some reasonable grounds for distinguishing Gov't v. Spokane, 99 Wn.2d 339, 348-49, 662 P.2d 845 between those within and those without the class; and (3) (1983). In any event, our recent decision in State v. Hayes, have a rational relationship to the purpose of the legisla- 108 Wn.2d 344, 738 P.2d 276 (1987) precludes respondents' tion. Convention Ctr. Coalition, at 378-79. Here the ordi- nance satisfies the first element. The classification includes 7Although the superior court concluded that the license requirement applied all employees and entertainers of soda pop establishments. only to soda pop clubs, we disagree. Taverns and liquor licensees are exempted As to the second element, the County has at least one valid only from the standards of conduct and operation. KCC 6.08.050(G). The licens- ing system is found in KCC 6.08.024, and applies to all managers or entertainers basis for making a reasonable distinction between alcohol- working at public places of amusement offering adult entertainment. serving and soda pop adult entertainment establishments. 816 = O'DAY v.KING COUNTY Jan. 1988 Jan. 1988 O'DAY v. KING COUNTY 817 ' 109 Wn.2d 796,749 P.2d 142 3'.3 �� 109 Wn.2d 796,749 P.2d 142 challenge. 0 ner, at 521. Double jeopardy does not apply "unless the [10] In Hayes, we rejected a challenge to a state stat- 4 sanction sought to be imposed in the second proceeding is ute's emergency clause. We held the challenge moot '` punitive in nature so that the g proceeding is essentially because, regardless of the emergency clause's validity, the criminal." Beckett v. Department of Social & Health statute became effective when the 90-day waiting period Servs., 87 Wn.2d 184, 188, 550 P.2d 529 (1976); see Emory prescribed by Const. art. 2, § 1 (amend. 72) elapsed without v. Texas Bd. of Med. Examiners, 748 F.2d 1023, 1026 (5th any person filing a referendum petition. Hayes, at 349. We Cir. 1984). apply the same rule to the King County Charter. Here, the Respondents invoke Seattle v. Bittner, 81 Wn.2d 747, King County Council enacted the challenged ordinance, 755, 505 P.2d 126 (1973) to argue that the plain language along with its emergency clause, on May 28, 1985. Pursuant demonstrates that the license revocation/suspension provi- to section 230.70 of the county charter, the ordinance sion is premised on deterrent, retributive, and punitive became effective 10 days after enactment if no proposed motivations. Respondents' reliance on Bittner for the prop- referendum petition was filed. If a petition was filed, but osition that a statute may not provide for both criminal the referendum failed to qualify for the ballot, the ordi- penalties and civil license revocation is ill founded. The nance became effective 45 days after enactment. Although Bittner court ruled that the city could not use the fact of a the record is silent on whether a filing occurred within 10 prior criminal conviction as the basis for denying a license days, no referendum ever took place. Therefore, the ordi- to operate a movie theater. By contrast, respondents' nance took effect no later than July 15. Even if the emer- licenses are subject to revocation not because of criminal gency clause were invalid, the challenged ordinance became citations, but rather because they violated the terms and effective_well before the respondents were cited for viola- conditions of their licenses. KCC 6.08.100(C). tions in late August/early September 1985. Consequently, [11] In respondents' cases, we conclude .that the deter- respondents' constitutional challenge to the emergency minative factors for resolving a double jeopardy claim are clause is moot. whether license revocation has a rational connection to Finally, respondents renew their contention that the some purpose other than retribution or deterrence, and revocation or suspension of their licenses, KCC 6.08.100(C), whether the sanction appears excessive in relation to the is punitive in nature, and added to the ordinance's criminal ' alternative purpose. See Kennedy v. Mendoza-Martinez, sanctions, KCC 6.08.120, places them in double jeopardy in 372 U.S. 144, 168-69, 9 L. Ed. 2d 644, 83 S. Ct. 554 (1963).8 violation of the fifth amendment to the United States Con- Revocation of a driver's license does not violate double stitution and article 1, section 9 of the Washington Consti- jeopardy, because rather than punishment, it is an exercise tution. Historically, whether under article 1, section 9 or of the police power for the protection of the users of the the Fifth Amendment, we have evaluated double jeopardy • challenges in an identical manner, and respondents have 8Factors identified by the Supreme Court to determine if a sanction is penal or regulatory include:(1)whether the sanction involves an affirmative disability or offered no reason why we should not continue to do so. The restraint; (2) whether it has historically as a been regarded punishment; (3) double jeopardy clause protects respondents "against mul- whether it comes into play only on a finding of scienter; (4)whether its operation tiple punishments for the same offense". In re Mayner, 107 will promote the traditional aims of punishment—retribution and deterrence; (5) Wn.2d 512, 520, 730 P.2d 1321 (1986). However, "[a] double whether the behavior to which it applied is already a crime; (6)whether an alter- native purpose to which it may rationally be connected is assignable to it;and (7) jeopardy violation does not occur simply because two whether it appears excessive in relation to the alternative purpose. Mendoza- adverse consequences stem from the same act." In re May- Martinez,372 U.S.at 168-69. si i 818 , O'DAY V.KING COUNTY Jan. 1988 Ej Jan. 1988 EVERETT CONCRETE v.LABOR&INDUS. 109 Wn.2d 796,749 P.2d 142 819 " 1 109 Wn.2d 819,748 P.2d 1112 highways. State v. Scheffel, 82 Wn.2d 872, 879, 514 P.2d ' i [No. 53879-4. En Banc. January 21, 1988.] 1052 (1973), appeal dismissed, 416 U.S. 964 (1974). We agree with the superior court, which analogized the license •, EVERETT CONCRETE PRODUCTS, INC., Appellant, V. THE sanction provision, KCC 6.08.100(C), to similar sanctions # DEPARTMENT OF LABOR AND INDUSTRIES, Respondent. imposed on drivers and professional licensees, and con- ;,, [1] Statutes — Construction — Ambiguity — Scope of Act. cluded that no double jeopardy violation existed. The When the scope of an enactment is ambiguous, the courts may County has a legitimate interest in protecting 18- to 21- resort to authority outside the language of the act to resolve the year-olds from illegal public sexual contact and from the question. other types of criminal activity historically linked to the 'j [2] Administrative Law — Judicial Review — Question of adult entertainment industry. ti Law — Standard of Review. Resolution of a question of law is We conclude that the County intended to impose sanc- • de novo by a reviewing court although it may accord substantial weight to the interpretation used by the agency charged with tions against a dancer's license as a remedial measure, administering the applicable statute. aimed at protecting the younger clientele that frequents soda pop clubs. In addition, we conclude that license sus- [3] Public Contracts — Master and Servant — Wages — Pre- vailing Wages — Public Works — Construction. The public pension or revocation for up to 1 year is not so punitive a works prevailing wage law (RCW 39.12) is remedial legislation and sanction as to negate that intention. See United States v. is to be liberally construed to effect its purpose. Ward, 448 U.S. 242, 248-49, 65 L. Ed. 2d 742, 100 S. Ct. [4] Statutes — Construction — Similar Federal Law — Pur- 2636 (1980); Beckett, at 188-90. We reject respondents' pose of Act. The function to be served by a state statute may be double jeopardy challenge under both federal and state law, determined by reviewing the purpose of similar federal legislation and affirm the trial court. upon which the state act is based. CONCLUSION [5] Statutes — Construction — Similar Federal Law — Absence of Specific Provision. The absence of a specific sub- Although we affirm the superior court's rejection of stantial federal provision from a similar state act relieves a court respondents' emergency clause and double jeopardy chal- construing the state statute from the necessity of adopting the con- o lenges, we find that the court erred in invalidating portions " struction given the federal act. of KCC 6.08. On the question of the regulations' over- [6] Statutes — Construction — Attorney General Opinion — breadth, we find it appropriate to cure any constitutional Effect. The interpretation of a statute in an Attorney General opinion is not binding upon the courts but is entitled to consider- infirmities by adopting a limiting instruction. On the equal protection question, we hold that respondents failed to able weight. identify a fundamental interest affected by the challenged [7] Public Contracts — Master and Servant — Wages — Pre- regulations, and that the County justified its discriminatory veiling Wages — Public Works — Off-Site Employers. The prevailing wage requirement of RCW 39.12 applies to an employer classification under the rational basis test. Because we who fabricates items specifically designed for a particular public reverse the dismissal of the charges filed against respon- works project regardless of where the fabrication occurs or of dents, we remand to the Federal Way District Court for whether the employer is considered a subcontractor or a material- trial. man. PEARSON, C.J., and BRACHTENBACH, DOLLIVER, DORE, Nature of Action: The off-site fabricator of items used ANDERSEN, CALLOW, GOODLOE, and DURHAM, JJ., concur. ;' in a public works project sought direct appellate review of an administrative determination that the fabricator's lij :�h 664 IN RE SMITH [Apr.1974 „ Apr.p34] 'AVf AR&HALL, 665 83 Wn.2d 659,521 P.2d 212 O 3 n.2d 65 '2a P,2 blatant breach of trust with respect to.the clients involved, ' ( [Nos.42650,42651. En Banc. April 25, 1974.] his attorney to whom the assignment of funds was directed, 1, ' THE CITY OF SEATTLE, Respondent, v. TERESA NATALE and the hearing panel project a misguided attitude which, #•T MARSHALL et al., Appellants. if uncorrected, can only result in ultimate and permanent disbarment. There is, however, some evidence in the record I. pi Obscenity—Determination—Test. Conduct is determined to be ob- �, scene when it depicts or exhibits, in a patently offensive way, indicating that Mr. Smith, though disorganized in the man- sexual conduct specifically defined by statute which, taken as a whole, lacks serious literary, artistic, political, or scientific value agement of his business affairs, is otherwise a capable at- and appeals to the prurient interest of the average person upon torney and a basically trustworthy individual. It is upon this latter score that we, upon the charges now application of contemporary community standards. [See Ann.5 A.L.R.3d 1158, 1175, 1179; 50 Am. Jur. 2d, Lewdness, before us, refrain from imposing disbarment as recom- Indecency,and Obscenity§§ 5, 7.] mended by the dissenting member of the Disciplinary [2] Obscenity—Determination—Obscenity Per Se—Expert Testimony. Board, and adopt the recommendation of suspension pre- When reasonable men could only conclude that specified conduct rented by the majority of the Disciplinary Board. incorporates the essential elements of obscenity and only communi- cates a prurient sexual interest to its observers, such conduct is Accordingly, Mr. Smith is, upon the filing of this opinion, obscene per se. There is no requirement that such a conclusion be immediately suspended from the practice of law in this state supported by any expert testimony. for a period of 120 days. The statement of costs filed by the " [3] Criminal Law—Indecent Exposure—Public View—Obscene Con- ' ';' duct. Obscene conduct openly and overtlydone in Bar Association is confirmed. p Y any place availa- ble to the public may constitute indecent exposure of a person to 11 HALE, C.J., and FINLEY, ROSELLINI, HUNTER, STAFFORD, public view. WRIGHT, UTTER, and BRACHTENBACH,JJ., concur. 1 [4] Obscenity—Determination—Effect. Conduct determined to be ob- scene is not entitled to any First Amendment protection. [5] Criminal Law—Aiding and Abetting—Municipal Ordinance. A per- son who directs and controls another's violation of a municipal •. ordinance thereby acquires the status of an aider and abettor and may be punished, under the terms of RCW 9.01.030, as a principal. [6] Obscenity—Determination—Lewd. Lewd behavior is synonymous with obscene conduct. It ,;y; FINLEY,WRIGHT,and UTTER,JJ.,dissent by separate opinion. ,•. ; Consolidated appeals from judgments of the Superior '.'i Court for King County, Nos. 59239, 61745, James W. Mifflin, i J., entered December 11, 1972. Affirmed. .,:�: Prosecutions for indecent exposure and for aiding and , ,. ?. `,!I abetting. The defendants appeal from convictions and sen- ! tences. Victor V. Hoff,for appellants. A. L. Newbould, Corporation Counsel, and Helen Wilson, '144{1;'I Assistant,for respondent. ` N, HUNTER, J.—This is a consolidation of appeals from two . , o 66fi SEATTLE v. MARSHALL [Apr. 1974 Apr. 1974] SEATTLE v. MARSHALL 667 83 Wn.2d 665,521 P.2d 693 83 Wn.2d 665,521 P.2d 693 separate convictions: (1) the appeal of Teresa Natale Mar- [1] The threshold question in this case is whether the shall for conviction of directly participating in the asserted above conduct on the stage of the New Paris Theater was violation of Seattle Code 12.11.220; and (2) the appeal of obscene. The United States Supreme Court, in Miller v. James Lee Verdon for the conviction of aiding and abetting California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607 Teresa Natale Marshall and others in the asserted violation (1973), defines obscenity as follows on page 24-25: of the ordinance. The appellants (defendants) were charged with violating 1 [C]onduct . . . [or] works which, taken as a whole, appeal to the prurient interest in sex, which portray the following ordinance: sexual conduct in a patently offensive way, and which, 12.11.220 Indecent exposure. It is unlawful for any taken as a whole, do not have serious literary, artistic, person to appear in a state of nudity, or in any indecent or political, or scientific value. lewd dress, or make any indecent exposure of his person, '` The basic guidelines for the trier of fact must be: (a) or to expose his private parts to public view, or be guilty whether "the average person, applying contemporary of any lewd act or behavior in any place exposed to community standards" would find that the work, taken as public view. (Ord. 16046 § 21; May 23, 1907). a whole, appeals to the prurient interest, Kois v. Wiscon- sin, supra, [408 U.S. 229 (1972)] at 230, quoting Roth v. (Italics ours.) $ United States, supra, [354 U.S. 476 (1957)] at 489; (b) The facts which are undisputed are as follows. On De- whether the work depicts or describes, in a patently of- cember 7, 1971, the defendant, Teresa Natale Marshall, fensive way, sexual conduct specifically defined by the while on the stage of the New Paris Theater, removed all of 4 1 applicable state law; and (c) whether the work, taken as her clothing and while she was naked, spread her legs a whole, lacks serious literary, artistic, political, or scien- tific value. We do not adopt as a constitutional standard toward an all male adult audience and exposed her private ,` the "utterly without redeeming social value" test of parts to that audience. In addition, she laid on her back and ;.f Memoirs v. Massachusetts, 383 U.S., at 419; then on her stomach and simulated a "bump and grind" sex1,1, act. On February 4, 11 and 12, 1972, and March 9, 1972, ? [2] One needs no expert testimony for it to be con- ' eluded that this conduct that took place in the New Paris women on the stage of the New Paris Theater stripped :, Theater comes squarely within the above definition, partic- until they were naked and while naked, simulated a sex act ularlywhen applying the basic either on the stage or on a large padded stool that was on guidelines enunciated. somersaulted and landed with their legs spread ,'`, There was no plot to this base conduct; there was no corn- thestage, g p 'i'.1 munication of ideas other than a prurient sex interest. It toward the audience, and exposed their private parts to an t all male adult audience while sitting on the edge of the ';� was a pure exhibition to portray an interest in sex conduct stage. 'r: : in an offensive way without any semblance of literary, 'n". artistic, political or scientific value. The conduct was ob- During the above times the defendant, James Lee Ver- ' ';s;' scene on its face. It is obscenity per se. In Morris v. United don, was the manager of the theater and was responsible ' [/ States, 259 A.2d 337, 341 (D.C. App. 1969), that court quoted for hiring and firing the above mentioned women, coun- :_ seled them about their performance, p and was responsible ,r g F the following language from the Court of Special Appeals :'',`''. of Maryland, defining obscenity per se: (At that time the for deciding, whether they would remove their G-strings 'o g ;;' element of no redeeming social value, and the requirement during the performance. The New Paris Theater in Seattle 4 i admits the general adult public to any of its performances b' of national community standards in the Roth and Memoirs {a k . definition were in effect. Roth v. United States, 354 U.S. upon payment of a monetary fee. {1 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957), and A Book �,. , ;,I 668 SEATTLE v. MARSHALL [Apr. 1974 Apr. 1974] SEATTLE v. MARSHALL 669 ' ' 83 Wn.2d 665,521 P.2d 693 83 Wn.2d 665,521 P.2d 693 Named "John Cleland's Memoirs of a Woman of Pleasure" Theatre I v. Slaton, supra; [413 U.S. 49, 37 L. Ed. 2d 446, v. Attorney General, 383 U.S. 413, 16 L. Ed. 2d 1, 86 S. Ct. f. 93 S. Ct. 2628 (1973)] . . . No amount of testimony 975 (1966).) by anthropologists, sociologists, psychiatrists, or psychol- ogists could have added anything to the trial court's abil- There is no desire to portray [it] in pseudo-scientific or ity to determine that the materials failed to comply with "arty" terms. It can be recognized by the insult it any contemporary community standards related to sexual offers, invariably, to sex and to the human spirit. It matters. goes substantially beyond customary limits of candor and deviates from society's standards of decency in the (Citations omitted.) The facts in this case do not constitute representation of the matters in which it deals. It has a 1 obscenity in the same degree as in State v. J-R Distribs., patent absence of any redeeming social value; it speaks Inc., supra, but the rule therein stated should nevertheless for itself and screams for all to hear that it is obscene. i be applicable. It is not designed to be a truthful description of the :' basic realities of life as the individual experiences That the performance in the New Paris Theater was them but its main purpose [is] to stimulate erotic re- t obscene is further supported by the case of Adams Theatre sponse. * * * No proof, other than the viewing of Co. v. Keenan, 12 N.J. 267, 275, 96 A.2d 519 (1953), wherein it, is required to determine if it is, in fact, obscene. Justice Brennan described a class of burlesque to be ob- (Footnotes omitted.) scene, which clearly encompasses the facts of the instant That court then said on page 341: case: It is clear to this court that where obscenity per se is 1 In contrast, that which has been termed "modern bur- involved, the prosecution is not required to offer any lesque"has been described as evidence (beyond the material or performance itself) ';!d "a plotless musical entertainment consisting of a series that it is pornographic or obscene or that it is below the .' of unrelated episodes and dances, all with the purpose of national community standards. . . . In other words, depicting or suggesting sexual subjects or objects. The if reasonable men could not differ and they could come to one outstanding characteristic of modern burlesque is but one conclusion, i.e., that the material or performance the fact that it is completely sex-centered. It has some is sexually morbid, grossly perverse, and bizarre, with- ip low comedy and occasionally some humor, but the prin- out any artistic or scientific purpose or justification, then ;j cipal subject of both is sex. * ^ * The piece de re- the Government,on its case-in-chief need not offer any 1 sistance is the girl who disrobes, partially or entirely, evidence of National community standards. and this act varies with the political season and the local- (Citations omitted.) ` ity. * '` * If burlesque of today is metropolitan, so also it is vice, and needs to be thought of in that light, as We hold that the conduct on the stage of the New Paris I an aspect of social pathology. If vice implies a sense of Theater on the occasion heretofore outlined was obscene j antagonism toward existing mores, a purveying of sex per se; that reasonable men could not differ that the ele- in a vicarious, professional and promiscuous fashion, ments essential to constitute obscenity existed in the con- '` then burlesque is just that. * * * Although the op- duct of the performers in this case, and that no opinion ' erator may not be willing to say so to an inquirer, usually evidence is necessary to support such a conclusion. In State adopting a sanctimonious air, he knows, and everything in his theatre indicates he knows, that he is giving a sex v. J-R Distribs., Inc., 82 Wn.2d 584, 623, 512 P.2d 1049 show, sans excuses, sans philosophy and above all, sans (1973), we stated: A" clothes. He is, in that sense a professional purveyor of "[H]ard core pornography" can and does speak for itself .,;':; sex." Dressler, Burlesque as a Cultural Phenomenon on the question of obscenity, according to Paris Adult � , (1937). 670 SEATTLE v. MARSHALL [Apr. 1974 Apr. 1974] SEATTLE v. MARSHALL 671 ' 83 Wn.2d 665,521 P.2d 693 ° 83 Wn.2d 665,521 P.2d 693 A burlesque show answering the latter description may Our own Court of Appeals held a sauna parlor, which is well be considered outrightly lewd and indecent. less public than a theater, to be a public place. In State v. (Italics ours.) , Jones, 9 Wn. App. 1, 8, 511 P.2d 74 (1973), that court [3] It is contended that the Seattle ordinance is a pub- stated: lic view ordinance that relates to public view of conduct in In any event, her conduct was open and overt because the streets, and that a theater is not a place intended to be the Rama Royale Sauna was open to the public. Anyone covered by the ordinance. We disagree. There is no lan- '° could enter and ask for any of the massages offered. Merely because the appellant's actions took place behind guage in the ordinance to support this limitation of its a closed door in a business establishment--open to the application. public does not make those acts any less public. They It is further contended that the Seattle ordinance has not were only more difficult to observe. been violated on the theory that the performance in the We adopt this reasoning. New Paris Theater was not a public place and thus the The cases cited in support of the contention that the New proscribed conduct was not exposed to public view. This Paris Theater was not a public place, are oriented to the was answered emphatically in the negative by the United 1.. peculiar language of the ordinance or statute, or to the States Supreme Court in Paris Adult Theatre I v. Slaton, f' i, proposition that live theatrical performances are protected 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973), involv- i by the First Amendment, and are more distant from the ing a case of consenting adults with paid admissions. The yr' audience than are performances in the cases of cabarets. court stated on page 68: '!° [4] The arguments of the defendants that their per- Finally, petitioners argue that conduct which directly forinances are protected by First Amendment rights need involves "consenting adults" only has, for that sole rea- -` not be considered if it is determined that they were ob- son, a special claim to constitutional protection. Our Con- +' scene. Obscenity is not protected by the First Amendment. stitution establishes a broad range of conditions on the `' ` Roth v. United States, supra, and reaffirmed in Miller v. exercise of power by the States, but for us to say that our Constitution incorporates the proposition that con- t' California, supra. See also State v. J-R Distribs., Inc., supra. duct involving consenting adults only is always beyond ' .- The defendants argue extensively, however, that a theat- state regulation, is a step we are unable to take. Commer- _; rical performance is protected by the First Amendment as cial exploitation of depictions, descriptions, or exhibitions '1 r-°' it is in verbal communication. This may be true in the of obscene conduct on commercial premises open to the ;:: philos- adult public falls within a State's broad power to regu- °: context of a performance communicating a purpose,late commerce and protect the public environment. The ,4; ;' ophy or idea (as long as it is not obscene), but there is no issue in this context goes beyond whether someone, or ;hi possible analogy of a theatrical performance to the conduct even the majority, considers the conduct depicted as 3, that occurred on the stage of the New Paris Theater that "wrong" or "sinful." The States have the power to make ;,: i;; �- was devoid of any plot, and had no purpose whatsoever a morally neutral judgment that public exhibition of ob- - . than to appeal to asex-oriented prurient interest of an scene material, or commerce in such material, has a tend- <,�' pp ency to injure the community as a whole, to endanger ? €'' adult male audience. the public safety, or to jeopardize, in Mr. Chief Justice s'f`,= [5] It is contended that there is no Seattle ordinance Warren's words, the States' "right . . . to maintain a defining the crime of aiding and abetting, and hence the decent society." „�.,i case must be dismissed against the defendants on that (Footnotes omitted. Italics ours.) ground. This contention cannot apply to the defendant, .4... i 672 SEATTLE v. MARSHALL [Apr. 1974 Apr. 1974] SEATTLE v. MARSHALL 673 83 Wn.2d 665,521 P.2d 693 83.Wn:2d 665,521 P.2d 693 • Teresa Natele Marshall, since she-was a direct participant engaged in by appellant Marshall would, in all probability, and was not charged with aiding and abetting. As to the ` offend the sensitivities of a majority of Seattle's citizenry. defendant, James Lee Verdon, the definition of aiding and iHowever, it is not a proper exercise of this court's author- abetting in the state statutes is sufficient to justify the ity to stretch the meaning and intendment of an inapplica- charge against him. The state statute, RCW 9.01.030, defines ble ordinance to reach behavior which citizens, or for that aiding and abetting as a status and it must therefore apply matter members of the court; privately or personally may to all cities and municipalities where a defendant has ac- feel should be proscribed. It may well be that the indicated tively and knowingly participated in the obscene conduct reprehensible societal behavior should be circumscribed, by his direction and control of the entire performance. ;, but that is the role of the legislative branch of local or state Moreover, Seattle Code 12.11.010 states: "The word 'per- government. son' wherever used in this chapter . . . means and in- r At the outset, to place this case in proper perspective, it eludes natural persons . . . whether acting by them- should be established what this case is and what it is not. selves or . . agent or employee . . ." This ordi- First, the case involves a charge of indecent exposure nance clearly encompasses the defendant Verdon by his !` brought under a Seattle city ordinance. Second, the defend- management, direction and control, and employment of I ants are not charged with the violation of an obscenity those directly participating in the obscene conduct. ordinance, cf. Seattle v. Hinkley, 83 Wn.2d 205, 517 P.2d [6] It is further argued that the ordinance is not suffi- 592 (1973), nor are they alleged to have violated the appli- ciently broad to encompass obscenity. This argument is cable state obscenity statute, RCW 9.68.010. The majority without merit. The ordinance sets forth acts of prohibited .1 opinion notwithstanding, the only problem involved in this conduct. These acts are specifically enumerated in the ordi- case is the interpretation of the indecent exposure ordi- nance—"state of nudity," "indecent or lewd dress," "inde- r nance as it applies to appellants, and no amount of emo- cent exposure of his person," "to expose his private parts tionalism can change the facts and the relevant legal issues. to public view," "any lewd act or behavior in any place ' The Seattle city ordinance which appellants are alleged exposed to public view." (Italics ours.) These specifics must to have violated provides as follows: be considered in context with the purpose of the ordinance, 12.11.220 Indecent exposure. It is unlawful for any per- and that "lewd" is a word interchangeable in use with ` ' son to appear in a state of nudity, or in any indecent or "obscene." Webster's Third New International Dictionary lewd dress, or make any indecent exposure of his person, ". . or to expose his privateparts to publicguilty (1961) defines "lewd" asdissolute, lascivious .a� p view, or be uilt of any lewd act or behavior in any place exposed to . . . indecent, obscene, salacious . . (Italics ours.) public view. (Ord. 16046 § 21; May 23, 1907). The judgment of the trial court is affirmed. ir The ordinance renders criminal the exposure of "private HALE, C.J., and ROSELLINI, HAMILTON, STAFFORD, and " parts to public view." To determine the applicability of this BRACHTENBACH,JJ., concur. ordinance, it must first be determined what constitutes FINLEY, J. (dissenting)—For the reasons stated herein- "public view." An identical question of interpretation was after, I cannot in good conscience agree with the majority ' presented to the Supreme Court of California in Barrows v. opinion. Municipal Court, 1 Cal. 3d 821, 464 P.2d 483, 83 Cal. Rptr. I would be the first to concede that the performance ` 819 (1970), In that case, several members of the cast of a play which involved the graphic simulation of oral inter- 674 SEATTLE v. MARSHALL [Apr. 1974 Apr. 1974 • a,; i P ] SEATTLE v. MARSHALL 675 v , 83 Wn.2d 665,521 P.2d 693 ;a(!',,F 83 Wn.2d 665,521 P.2d 693 course were charged with violation of a statute which pro- `4'``+t' the performance exposed to�, subjectp public view—it still hibited "lewd or dissolute conduct in any public place or in :s may not be viewed from the public domain.' any place open to the public or exposed to public view." If we are to take the majority at its word, it would be Barrows v. Municipal Court, supra at 823 n.1. The Califor- entirely nia court held that the statute before it had no application `:}t proper for a citizen of Seattle or the police to file a pp :. valid complaint against any theatrical performance which to theatrical performances, i.e:, performances in a commer- I offended their personal sense of morality.' cial theater. Cf. Crownover v. Musick, 9 Cal. 3d 405, 509 I; In conclusion, this court unanimously recently reiterated P.2d 497, 107 Cal. Rptr. 681 (1973). Likewise, a New York ;; the cardinal principal of statutory construction that crimi- court concluded that a statute forbidding "indecent expo- nal sanctions must be narrowly construed in a manner most sure" did not apply to performances in a theater. People v. .' favorable to the defendant, State v. Bell, 83 Wn.2d 383, 518 Conrad, 70 Misc. 2d 408, 334 N.Y.S.2d 180 (Buffalo City Ct. P.2d 696 (1974). It is apparent, therefore, that the activities 1972). In a similar decision, the Michigan Court of Appeals i held a Detroit "indecent exposure" ordinance inapplicable engaged in by appellants did not violate Seattle Code to "topless go-go dancing." Jads, Inc. v. Detroit, 41 Mich. i requirement that the offending conduct take place in a public place, App. 693, 200 N.W.2d 715 (1972). i and the Court of Appeals refused to impose one. I agree with its characterization in dictum that a massage parlor is a public place, but I I Does the term "public view" appertain to the exposure of cannot understand what the Jones case has to do with an ordinance private parts behind the closed doors of the New Paris which requires"public view"of the offending behavior. Theater? I think not. The Seattle ordinance, enacted in 'To stretch the majority's rationale one more step, it could be hy- 1907, apparently was drafted to protect the public from pothesized that since members of the public pay to enter the theater, beingaffronted in thepublicparks, onpublic thorough- the presence of these admittees would render the performances subject g I. to the requisite "public view." However, this stretches logic too far. fares, and in other unquestionably public places by those f,' Upon paying admission to the New Paris Theater, the admittee becomes, who exposed themselves to public view. Thus, the conduct 0 i in the eyes of the law, an invitee and is, ex hypothesi, no longer a engaged in by appellant Marshall would clearly have been member of the general public. ,, proscribed by the ordinance had it occurred upon the pub- { 'Theatrical performances which may fall in the minds of some ` within this class include: Ballets: the renowned lic streets, or if it could have been viewed from a public 4 performance of Ted Shawn in "Adonis" (performed in 1932); the Royal Danish Ballet thoroughfare. The consenting adults who had willingly paid l', in "The Triumph of Death"; and renditions of Nikolais' "The for the privilege of watching the performance here in- !; Relay" (performed for viewing on the BBC and New York's volved are not the class of unsuspecting citizens the ordi- , WNET/13), Harkarvy's "Squares", Smuin's "The Eternal Idol", Lich- nance was desi ned to rotect. f ine s "Cain and Abel", the Netherlands Dance Theater in "Mutations", g h ! and the "Bach Suite". Operas: the performances of sopranos Arlene The majority attempts to finesse the ordinance's explicit Saunders in Ginastera's "Beatrix Cenci" (performed at Kennedy Cen- ter) and Grace Bumbry in "Salome"; and production of Prokofiev's requirement of a "public view" of any exposure of private "The Fiery Angel". Plays: Zero Mostel's performance in "Ulysses in parts or lewd act by stating that the theater was a public Nighttown" and that of Sarah Stephenson as Desdemona in "Othello"; 1 : the Broadway play of "Grin and Bear It"; and the off-Broadway plays place.' Of course, it is! But, that, in itself, does not render of"Hair", "Oh Calcutta",and"Dark of the Moon". 'The majority bulwarks its "public place" assertion with the case of t State v. Jones, 9 Wn. App. 1, 511 P.2d 74 (1973), which involved the application of the state vagrancy statute, RCW 9.87.010(7) to activities 4F i,'. within the confines of a massage parlor. In that case, there was no 'II', . "'`S (l, r � i CASES DETERMINED IN THE SUPREME COURT OF a .:. 10 WASHINGTON [No. 61217-0. En Banc. March 23, 1995.] JJR INc., ET AL, Appellants, V. THE CITY OF SEATTLE, Respondent. [1] Statutes—Validity—Facial Challenge—Scope. In a facial challenge to a legislative enactment, a court considers only whether the language of the enactment violates the constitution. It does not consider whether the enactment is constitutional as • applied to the particular facts of the case. [2] Obscenity — Nudity — Nude Dancing — Constitutional Protection. Nude dancing is protected expression under both the First Amendment and Const. art. 1, § 5. [3] Constitutional Law — Freedom of Speech — Prior Re- ! straint — What Constitutes. A governmental restriction on a form of constitutionally protected expression in advance of actual publication constitutes a prior restraint. } [4] Constitutional Law — Freedom of Speech — Prior Re- straint — Revocation or Suspension of License. A govern- ment's attempt to control future constitutionally protected expression by means of license revocation or suspension consti- tutes prior restraint under Const. art. 1, § 5. li ,, I I 2 JJR INC. v. SEATTLE Mar. 1995 Mar. 1995 JJR INC. v. SEATTLE 3 126 Wn.2d 1 126 Wn.2d 1 [5] Obscenity — Nudity — Nude Dancing — Revocation or ment in favor of the plaintiffs, and remands the case for an 1 Suspension of License — Dancing Prohibition — Prior attorney fee award. Restraint. An administrative revocation or suspension of a Gilbert H. Levy, for appellants.license to dance nude that has the effect of prohibiting a business pp 1 ' from showing nude dancing performances, as well as prohibiting Mark H. Sidran, City Attorney, land Ada Ko and Shelley dancers from dancing, anywhere within the government's juris- J. Hickey, Assistants, for respondent. diction constitutes a prior restraint of constitutionally protected expression under.Const. art. 1, § 5. DURHAM, C.J. — JJR Inc., Autumn Willows, and Gina [6] Obscenity — Nudity — Nude Dancing — Revocation or Suspension of License—Stay Pending Appeal—Constitu- Ware challenge Seattle Municipal Code (SMC) 6.202.230, an tional Requirement. Const. art. 1, § 5 requires that an administrative licensing scheme governing adult entertain- administrative revocation or suspension of an adult entertain- • e ment license revocation and suspension. JJR is a Washing- ment license be stayed pending judicial review of the administra- ton corporation operating Rick's, a Seattle nightclub featur- tive action. ing nude dancing. Willows and Ware perform nude dancing [7] Statutes — Construction — Meaningful Interpretation. at Rick's. The City of Seattle (Seattle) requires that nude When interpreting a statute,a court must assume that the Legis- dancing establishments, and the performers who work there, lature did not engage in meaningless acts. obtain adult entertainment licenses. JJR,Willows and Ware' [8] Statutes — Validity — Invalidity — Partial Invalidity — contend that Seattle's administrative' licensing scheme is Effect — In General. When an unconstitutional portion of a facially unconstitutional because it fails to provide a stay of legislative enactment is severable from the remaining portions, a license revocation or suspension 'pending judicial review. court may invalidate the unconstitutional portion and allow the remaining portions to stay in effect. , They argue this violates the first amendment to the United States Constitution and article 1, section 5 of the Washing- ALEXANDER and TALMADGE, JJ., did not participate in the disposition ton State Constitution. of this case. Seattle argued to the King County Superior Court that the Nature of Action: The plaintiffs challenged a municipal statutory writ procedures under RCW 7.16 allow for the ces- ordinance governing licenses for adult entertainment busi- 0 sation of penalties pending judicial,review of adult entertain- nesses. Under the ordinance, an adult entertainment busi- ment license revocation and suspension. After cross motions { ness may not operate under an administratively revoked or �' for summary judgment and following a motion for reconsider- suspended•license •and a nude dancer with a revoked or ation,the Superior Court held that RCW 7.16 provided neces- suspended license may not dance anywhere in the city. sary procedural safeguards rendering Seattle's licensing Superior Court:.The Superior Court for King County, ordinance constitutional. We reverse, and hold a portion of No. 93-2-10483-9, R. Joseph Wesley, J., on January 6, 1994, Seattle's licensing ordinance unconstitutional because it entered a judgment upholding the ordinance. lacks the minimum procedural safeguards required by article 1, section 5 of the Washington State Constitution. Supreme Court: Holding that ordinance effected an un- [1] In facial challenges such as this, we consider only if constitutional prior, restraint of constitutionally protected the language of the ordinance violates the constitution. We expression and that the ordinance must provide for, a stay of administrative license revocations or•suspensions pending ; JJR,Willows, and Ware will be referred to collectively as JJR. judicial review, the court reverses the judgment,grants judg- z 4 JJR INC. v. SEATTLE Mar. 1995 Mar. 1995 JJR INC. v. SEATTLE 5 126 Wn.2d 1 126 Wn.2d j 1 i i do not contemplate whether the ordinance would be con- the Director provides the licensee with a written statement stitutional "as applied" to the facts of a particular case. that includes the basis for the decision and notice of the right Seattle v. Webster, 115 Wn.2d 635, 640 n.2, 802 P.2d 1333, 7 to an administrative hearing. SMC 6.202.260. A licensee can A.L.R.5th 1100 (1990), cert. denied, 500.U.S. 908 (1991). As contest the Director's decision by filing a notice of appeal with a result, the focus is not on how SMC 6.202.230 has been . the hearing examiner within 10 days.SMC 6.202.270(A).If an applied to Rick's and its performers. Instead, the language appeal is not pursued, the Director's decision becomes final. of the ordinance is examined to determine its constitutional SMC 6.202.270(C). The licensee generally may continue to validity. engage in the licensed activity hear- While not contested, Seattle's adult entertainment regula- pending a decision by the tions set forth in SMC 6.270 provide necessary background 0 ing examiner. SMC 6.202.280. t information. These regulations, enacted to promote public i . The hearing examiner is part of Seattle's administrative scheme for licensing appeals and may affirm or deny the health, safety, and general welfare, are numerous and exten- Director's determinations.SMC 6.202.300.The hearing exam- sive. SMC 6.270.010(A). For example, nude dancing may iner's function is quasi judicial,Francisco v.Board of Directors occur only on a stage set back from the audience. SMC of Bellevue Pub. Schs., Dist. 405, 85 Wn.2d 575, 579, 537 P.2d 6.270.100(A)(1). Adult entertainers, when nude or seminude, 789 (1975), and the Director's decisions are reviewed de novo. are prohibited from mingling with patrons. SMC 6.270.100- Strict rules of evidence do not apply at an administrative hear- (A)(3). Adult entertainers may not engage in sexual contact ing; instead the examiner "shall admit and give probative with patrons, nor with one another. SMC 6.270.100(A)(4)(b), effect to evidence which possesses probative value". SMC (c); SMC 6.270.100(A)(5). 3.02.090(J). The hearing examiner's decision is final when Violation of the adult entertainment regulations can re- mailed to the licensee.The Director has discretionary power to salt in license revocation or suspension proceedings under stay enforcement of the revocation or suspension pending judi- SMC 6.202.230.2 JJR argues that the administrative proce- '' cial consideration. SMC 6.202.310. While the licensing ordi- dures pursuant to SMC 6.202.230 act as a prior restraint on nance contains no provisions for judicial review following a protected expression and, therefore, must provide certain hearing examiner's decision, a licensee may file a writ of procedural safeguards such as a stay of adult entertainment , review in superior court under the general certiorari statute. license revocation and suspension pending judicial review. 0, ' i RCW 7.16.030;see Responsible Urban Growth Group v. Kent, i We turn now to those procedures. 123 Wn.2d 376, 384, 868 P.2d 861.(1994). Seattle authorizes police officers to conduct routine inspec- tions of adult entertainment establishments. SMC 6.202- PRIOR RESTRAINT .360(D). When a police officer finds a violation, a police inci- [2] An establishment featuring nude dancing may not dent report is filed. This sets into motion administrative operate under a revoked or suspended adult entertainment proceedings for license revocation or suspension. premise's license; similarly, an individual whose adult enter- The finance director of Seattle(Director)or a representative tainment license has been revoked or suspended may not reviews the police incident report and determines whether to perform nude dance anywhere in Seattle.3 Seattle argues revoke or suspend the license.Upon revocation or suspension, that license revocation or suspension operates merely as a ' subsequent punishment for nude conduct violating the adult 'SMC 6.202.230 provides, in part: "A license may be suspended, denied or , revoked for violation of any ordinance or law which regulates licensed activity , in order to further the public interest in public health, safety, and welfare." Performing under a revoked or suspended license can result in criminal tir prosecution. SMC 6.202.320. • " I - 6 JJR INC. v. SEATTLE Mar. 1995 Mar. 1995 JJR INC. v. SEATTLE 7 126 Wn.2d 1 126 Wn.2d 1 entertainment regulations. While it is true that nude con- O'Day, at 816-18. Although O'Day recognized that license duct has no constitutional protection, O'Day v. King Cy., 109 revocation differs from license denial because revocation Wn.2d 796, 749 P.2d 142 (1988), nude dancing is protected implies that the licensee violated the terms of the license, expression under both Const. art. 1, § 5 and the First ; O'Day, at 817, both license denial and license revocation lead Amendment.Barnes v. Glen Theatre, Inc., 501 U.S. 560, 565, to the future suppression of constitutionally protected speech 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991); O'Day, at 803. The and as a result constitute prior restraint. Seattle relies on the fact that license revocation or suspension prohibits individu- argument that license revocation and suspension differ from als from performing nude dance raises concerns that the • outright license denial because they occur "after the licensee government is engaging in a prior restraint of constitution- has violated the Ordinance,not prior to the licensee's dance." ally protected expression. Br. of Resp't Seattle, at 13. However, the relevant issue is [3, 4] Under Const. art. 1, § 5, we have held that prior • • whether license revocation and suspension prohibit future restraint of constitutionally protected expression is per se expression protected under Const. art. 1, § 5. unconstitutional. O'Day, at 804 (citing State v. Coe, 101 We are sensitive to the dangers of prior restraint and Wn.2d 364, 374-75, 679 P.2d 353 (1984)).' Prior restraints have invalidated legislation on this basis. For example, in are "official restrictions imposed upon speech or other forms Seattle v. Bittner, supra, we held that government officials of expression in advance of actual publication." Seattle v. engage in prior restraint when they attempt to limit obscen- Bittner, 81 Wn.2d 747, 756, 505 P.2d 126 (1973) (quoting ity by denying adult entertainment licenses to applicants Thomas I. Emerson, The Doctrine of Prior Restraint, 20 L. who previously engaged in illicit activities. Although license & Contemp. Probs. 648 (1955)). Licensing power operates as. denial acts as a punishment for unlawful activity, it never- a prior restraint when used as an "instrument of punish- theless constitutes a prior restraint because it suppresses ment". Bittner, at 755.5 Licensing of constitutionally pro- future, protected expression. Bittner, 81 Wn.2d at 755. tected expression places censorship power in the hands of Seattle argues that license revocation and suspension oper- government, and government officials who attempt to con- ate as a postpublication sanction similar to the one upheld in trol future expression through license revocation and sus- Bering v. Share, 106 Wn.2d 212, 721 P.2d 918 (1986), cert. pension engage in a prior restraint. This is inimical to dismissed, 479 U.S. 1050 (1987). Seattle maintains that like protection of free expression under Const. art. 1, § 5. 0 AO the antiabortion picketers in Bering,nude dancers who abuse [5] While we upheld a similar adult entertainment licens- their free speech rights can be deprived of them. However, ing scheme in O'Day, we based our ruling on double jeopardy Bering recognized that postpublication sanctions take only principles and did not engage in a prior restraint analysis. one of two forms: "(1)an award of damages in a tort action,or (2) an injunctive order prohibiting further dissemination of t speech." Bering, at 243. License revocation and suspension 'Under the First Amendment, a system of prior restraint is not presume- r p P Lively unconstitutional but comes before the court"bearing a heavy presumption fall outside this limited definition of postpublication sanc- against its constitutional validity".Bantam Books, Inc. v. Sullivan,372 U.S. 58, I tions. Moreover,the picketers in Bering were prohibited from 70, 9 L. Ed. 2d 584, 83 S. Ct. 631 (1963). • protesting directly in front of a medical clinic, but were still 'While in Soundgarden v. Eikenberry, 123 Wn.2d 750, 871 P.2d 1050 (1994) permitted to engage in demonstrations nearby. License revo- we described prior restraint as "prohibitlingl future speech, as opposed to cation, in comparison, amounts to the total suppression of punishing past speech",government licensing was not at issue. (Citations omit- rotected ted.)Soundgarden, at 764. p expression. 1 • 8 JJR INC. v. SEATTLE Mar. 1995 Mar. 1995 JJR INC. v. SEATTLE 9 126 Wn.2d 1 126 Wn.2d 1 Neither party disputes that a licensee may not engage in it remains far from the core of protected expression. While future performances of nude dance in Seattle with a revoked protection of political and other forms of speech is abso- or suspended license. Under Const. art. 1, § 5, when a lutely central to the meaning of Const. art. 1, § 5, nude municipality prevents individuals from performing protected dancing performed at an adults-only nightclub clings to the nude expression, and establishments from showcasing nude edge of protected expression. As such, we decline to categor- dance, this amounts to a prior restraint of protected expres- ically invalidate an administrative scheme that revokes or sion.6 suspends an adult entertainment license. [6] Nevertheless, the licensing of adult entertainment PROCEDURAL SAFEGUARDS This court previously has held that prior restraint of pro- carries with it the possibility of unwarranted censorship e 0 and, therefore, must contain sufficient procedural safe- tected expression is per se unconstitutional. ODay, v. King guards. Because we must be exacting in safeguarding pro- Cy., 109 Wn.2d 796, 804, 749 P.2d 142 (1988). Nude dancing tected expression, we find that a stay of adult entertain- has expressive value requiring constitutional protection, but ment license revocation and suspension pending judicial °Prior to the United States Supreme Court decision in Arcara v. Cloud Books, review is the minimum constitutionally permissible safe- Inc.,478 U.S.697,92 L.Ed.2d 568, 106 S.Ct.3172(1986),federal courts readily guard. invalidated licensing of protected expressive activity where licenses were The Court of Appeals in D.C.R. Entertainment, Inc. V. revoked or suspended upon finding businesses engaged in prohibited activity. Pierce Cy., 55 Wn. App. 505, 511-12, 778 P.2d 1060 (1989) License revocation or suspension was universally considered a prior restraint because it prevented theaters, clubs, and bookstores from engaging in any and struck down an adult entertainment licensing scheme in- all protected expression during the period of revocation.Paducah u. Investment volving the denial of licenses to nude dancing establish- Entertainment, Inc., 791 F.2d 463 (6th Cir. 1986); Cornflower Entertainment, ments, in part because the administrative procedures failed Inc. v. Salt Lake City Corp.,485 F. Supp. 777(D. Utah 1980); Gayety Theatres, to require a stay of the license revocation or suspension Inc. v.Miami,719 F.2d 1550(11th Cir. 1983);Entertainment Concepts,Inc.,III u. Maciejewski, 631 F.2d 497(7th Cir. 1980). pending judicial review. The suspension of a license offers In 1986, however, the United States Supreme Court in Arcara upheld the an even more pressing reason for requiring the main- closure of a bookstore for allowing prostitution to occur on the premises. The tenance of the status quo pending judicial review. A licen- closure was pursuant to a public health statute—not a licensing statute—and the Supreme Court held it did not constitute a prior restraint because the book- suspendedrelatively brief store was not prohibited from opening elsewhere.Arcara, at 705 n.2. Although Q see, whose license has been for a , period of time, has no incentive to seek judicial review if the Arcara did not concern the revocation or suspension of a business license, the period of suspension is completed before a judicial outcome. Tenth Circuit in O'Connor u. Denver, 894 F.2d 1210 (10th Cir. 1990) relied on Even if there were strong evidence that the license was Arcara to hold that revocation and suspension of amusement licenses do not constitute a prior restraint. Not all courts agree with O'Connor's interpretation suspended erroneously, the licensor's actions would be insu- of Arcara. For example, State v. Bauer, 159 Ariz. 443, 768 P.2d 175 (Ct. App. lated because the licensee would have no incentive to seek 1989), held that a system requiring businesses convicted of obscenity to relin- judicial review. Furthermore, any judicial outcome would be quish all operating licenses constituted a prior restraint, and Arcara "ha[d] no application". Bauer, at 455. moot if the period of license suspension had been completed. Conflict presently exists in the federal courts in interpreting the constitution- [7] Seattle argues that the writ of review under RCW 7.16 ality of revocation and suspension of entertainment licenses. However,it is well provides a stay of license revocation or suspension pending settled that article 1, section 5 of the Washington State Constitution provides broader free speech protection than the first amendment to the United States judicial review.As already stated,RCW 7.16 allows a licensee Constitution, O'Day v. King Cy., 109 Wn.2d 796, 802, 749 P.2d 142 (1988), and to seek review in superior court. Under RCW 7.16.070, once we reach today's decision solely on the basis of the Washington State Constitu- the writ of review is granted it must direct Seattle "to desist tion. • 10 JJR INC. v. SEATTLE Mar. 1995 Mara 1995 BECKER v. PIERCE COUNTY 11 126 Wn.2d 1. 126 Wn.2d 11 from further proceedings in the matter to be reviewed". ing judicial review. Freedom of expression is fundamental to Nonetheless, RCW 7.16.070 is followed immediately by RCW our scheme of government. Flawed procedural safeguards 7.16.080' which gives the court discretion to stay the revoca- potentially lead to unwarranted revocation or suspension of tion or suspension. Interpreting RCW 7.16.070 to mean licenses with the consequent suppression of protected ex- "automatic stay" disregards the court's discretionary power I pression. While today's decision creates a very narrow excep- provided in RCW 7.16.080. When interpreting statutes, the tion to the prohibition of prior restraint, we reaffirm our court must assume that the Legislature does not engage in steadfast commitment to preserving the broad scope of free meaningless acts.State v. McCullum,98 Wn.2d 484,493,656 speech protection under Const. art. 1, § 5. P.2d 1064 (1983). [8] Furthermore, the administrative licensing scheme ATTORNEY FEES specifically does not require a mandatory stay of the revoca- - JJR brought this action under 42 U.S.C. § 1983 and is tion and suspension pending judicial review. Under SMC awarded attorney fees on this basis. 42 U.S.C. § 1988. We 6.202.310, the hearing examiner's decision is final when remand to the Superior Court for a determination of the mailed, and a stay of license revocation or suspension is at total amount of fees and expenses, both at trial and on the discretion of the Director. Since SMC 6.202.230 expli- appeal, pursuant to RAP 18.1(i). citly precludes a mandatory stay, we strike this portion of the licensing ordinance as unconstitutional in the context of UTTER, DOLLIVER, SMITH, GUY, JOHNSON, and MADSEN, JJ., adult entertainment licenses.' The remaining portions of and ANDERSEN and BRACHTENBACH, JJ. Pro Tern., concur. the ordinance remain intact and constitutional. It is a well-recognized rule of constitutional law that, where the unconstitutional portion of an act is severable from the rest, the portion which is constitutional may stand, and that which is unconstitutional may be stricken out and rejected. (Citations omitted.) State v. Grabinski, 33 Wn.2d 603, 612, 206 P.2d 1022 (1949). Until Seattle enacts a mandatory o [No. 61553-5. En Banc. March 23, 1995.] stay, however, the ordinance is unconstitutional in the con- V i' NINA M. BECKER, Appellant, V. THE COUNTY OF PIERCE, text of nude dancing adult entertainments An administrative licensing scheme must provide a stay of ET AL, Respondents. • adult entertainment license revocation or suspension pond- [1] Elections—Public Policy—Legislative or Judicial Deter- urination. The Legislature rather than the Supreme Court is 'RCW 7.16.080 states: "If a stay of proceedings be not intended, the words primarily responsible for deciding public policies governing elec requiring the stay must be omitted from the writ.These words may be inserted or Lion procedures. omitted, in the sound discretion of the court, but if omitted the power of the [L] Statutes — Construction — Unambiguous Language — In inferior court or office is not suspended or the proceedings stayed." General. The meaning of unambiguous statutory language is 'It is unclear whether this administrative licensing scheme applies only to derived from the words of the statute alone. adult entertainment licenses. [3] Statutes—Construction—Superfluous Provisions.A court 'Seattle may enact emergency measures to further public health and safety. must give effect to all the language of a statute and avoid an Seattle City Charter art. 4, § 1(I). interpretation that renders statutory language meaningless. • • 11/02/95 18:21:19 West Publishing Co.-> rage HUG 7 A 887 F.2d 219 Page 1 C2A4 (Cite as:887 F.2d 219)• Art51' 0 ACORN INVESTMENTS, INC., Plaintiff- OBSCENITY k2.5 S'10 Appellant, 281k2.5 v. First Amendment was violated by city CITY OF SEATTLE; Walter Tank; ordinance that required panoram or Douglas Jewett, Defendants-Appellees. "peepshow" businesses to pay various license fees and to disclose names and addresses of No.88-3657. shareholders; interest advanced by city to justify licensing fees--requiring panoram United States Court of Appeals, operators to pay for harmful secondary effects Ninth Circuit. of criminal activity in their establishments-- was not supported by evidence, and city's Argued and Submitted June 5, 1989. interest in accountability in enforcement of ordinance, a management concern, was not Decided Oct. 5, 1989. served by identification of shareholders. U.S.C.A. Const.Amend. 1. Owner and operator of"panoram" machines at adult entertainment center in City of *220 Jack R. Burns, Burns and Hammerly, Seattle attacked constitutionality of city P.S.,Seattle,Wash.,for plaintiff-appellant. ordinance requiring "peepshows" to pay various license fees and to disclose names and R. James Pidduck, Asst. City Atty., Seattle, addresses of shareholders. The United States Wash.,for defendants-appellees. District Court for the Western District of Washington, Barbara J. Rothstein, Chief Appeal from the United States District Judge, awarded city summary judgment on Court for the Western District of Washington. shareholder disclosure issue and ruled in favor of city on license fee issue. On appeal, the Before GOODWIN, Chief Judge, and Court of Appeals, William A. Norris, Circuit WRIGHT and NORRIS, Circuit Judges. Judge, held that First Amendment was violated by license fees scheme and by WILLIAM A. NORRIS, Circuit Judge: shareholder disclosure requirements of ordinance. Acorn Investments, Inc. owns and operates panoram machines at four adult Reversed. entertainment centers in the City of Seattle. When a customer inserts one or more quarters Eugene A. Wright, Circuit Judge, specially into a panoram, the machine exhibits a video concurred and filed opinion. tape or motion picture on a screen for a few minutes. [FN1] A customer may also view CONSTITUTIONAL LAW k90.4(4) live entertainment through a panoram. Each 92k90.4(4) panoram is located in a booth that gives First Amendment was violated by city individual patrons some degree of privacy. ordinance that required panoram or "peepshow" businesses to pay various license FN1. The Seattle ordinance governing fees and to disclose names and addresses of panorams refers to them as "peepshows." shareholders; interest advanced by city to Seattle Municipal Code(SMC)6.42.010. justify licensing fees--requiring panoram operators to pay for harmful secondary effects In this action, Acorn attacks as violative of of criminal activity in their establishments-- the First Amendment city laws that require was not supported by evidence, and city's panoram businesses to pay various license fees interest in accountability in enforcement of. and to disclose the names and addresses of ordinance, a management concern, was not shareholders. The district court awarded the served by identification of shareholders. City summary judgment on the shareholder U.S.C.A. Const.Amend. 1. disclosure issue and, after a one-day bench Copr. m West 1995 No claim to orig. U.S. govt. works 11/0Z/95 1B:ZZ:Z5 West Publishing Co.-> rage 11113 887 F.2d 219 Page 2 (Cite as:887 F.2d 219, *220) trial, ruled in favor of the City on the license providing police surveillance at panoram fee issue. We reverse on both issues. establishments was approximately$65,068. I *221 Acorn filed this action in 1987, THE CITY'S PANORAM LICENSING claiming that the City discriminates against ORDINANCE the owners and operators of panoram machines in violation of the First Amendment The Seattle ordinance licensing panorams by taxing and licensing the machines dates back to 1955. [FN21 As originally differently from other coin-operated enacted, the ordinance required panoram amusements. [FN4] Acorn based its claim on businesses to obtain two separate licenses, a Minneapolis Star v. Minnesota Commissioner Panoram Location License and a Panoram of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 Operator License. The fee in 1955 for a L.Ed.2d 295 (1983), where the Supreme Court Panoram Location License was $25 per struck down a taxation scheme which treated panoram machine per annum, and the fee for the press differently from other businesses a Panoram Operator License was $300 per because the scheme was not necessary "to annum. In 1961, the City amended the achieve an overriding governmental interest." ordinance to require the following three Id. at 582, 103 S.Ct. at 1370. As the Court licenses and fees: Panoram Location License-- explained, "differential treatment [of the $5 per machine per annum; Panoram Sub- press], unless justified by some special License--$5 per machine per annum; Panoram characteristic of the press, suggests that the Operator License--$500 per annum plus 5% of goal of the regulation is not unrelated to the total gross income of all machines suppression of expression, and such a goal is operated. These three licenses have been presumptively unconstitutional." Id. at 585, required ever since; the current fee schedule 103 S.Ct. at 1372. is as follows: Panoram Location License--$30 per machine per annum; Panoram Sub- FN4. It is undisputed that at least some, License--$30 per machine per annum; if not all, of the video tapes and live Panoram Operator License--$650 per annum, entertainment viewed in Acorn's plus $25 per month per machine. Seattle panorams are protected by the First Municipal Code(SMC)6.42.030. [FN3] Amendment. FN2. Since 1955 panorams have also been The City, on the other hand, argued to the subject to zoning restrictions. Like adult district court that Minneapolis Star was theatres, panorams are prohibited "within inapposite because the license fees on three hundred feet of the grounds or panorams are in fact justified by a special building of any public or private characteristic of the panoram booths--their elementary and secondary schools." SMC privacy makes them convenient places for 6.42.120. criminals to plan or engage in illegal activity such as dealing drugs or fencing stolen FN3. The City increased the fees property. The City contended that the license periodically from the 1961 levels. These fees are used to offset the cost of increased increases occurred in 1968, 1980, and police surveillance required by the privacy again in 1987. and location of the panorams. Specifically, the City pointed to the cost of increased police In 1987, the City collected panoram license surveillance and inspection of panoram booths fees of $86,715 from Acorn and the seven located in a high crime area of downtown other businesses operating panorams in the Seattle between First, Second, Pike and Pine City during that year. The cost to the City of Streets, known as "the Block." The City did administering the panoram licensing program not argue that panorams located off "the for all panoram establishments in 1987 was Block" pose any special law enforcement approximately $2,040, while the cost of problems. [FN5] Copr. m West 1995 No claim to orig. U.S. govt. works 11/0Z/95 18:23:38 West Publishing Co.-> ?age 11114 887 F.2d 219 Page 3 (Cite as: 887 F.2d 219, *221) FN5. Five of the nine licensed panoram court found that panorams on "the Block" locations in the City are on "the Block." generate "adverse effects on the areas in Although the record does not indicate which they operate" because they contribute precisely how many of the City's to "the Block's" crime problem. E.R. at 8. individual panorams are located on "the The district court stated that "the Block" is Block," the record does show that in 1986, "the City's focal point for prostitution, drug panoram establishments located off "the sales, robberies, assaults and other street Block" paid 52.7% of the total panoram crime[sl" and while "panorams *222 are not license fees collected, and in 1987, these the sole cause of the criminal conduct, they "off Block" panorams accounted for 47.7% contribute substantially to it." E.R. at 31-34. of the license fee revenue. The district court found that the City had a substantial governmental interest in trying to In arguing its case, the City relied heavily prevent the secondary effects created by the upon City of Renton v. Playtime Theatres, 475 panorams. Thus, the district court concluded U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), that the City had satisfied the requirement of in which the Supreme Court upheld against Renton that the ordinance serve a substantial First Amendment challenge a municipality's governmental interest. The district court also attempt to zone adult theatres to keep them concluded, without elaboration, that the away from schools, churches, residences and licensing scheme satisfied the other parks. In Renton, the Court was faced with a requirement of Renton that the ordinance zoning ordinance which was "aimed not at the allow for adequate alternative avenues of content of the films shown at 'adult motion communication. picture theatres,' but rather at the secondary effects of such theatres on the surrounding Acorn argues on appeal, as it did below, that community." Id. at 47, 106 S.Ct. at 929 the City's licensing ordinance should be (emphasis omitted). The Court held that the analyzed not under the Renton standard but Renton ordinance was constitutional because rather under the Minneapolis Star "necessary Renton had proven that adult theatres to achieve an overriding governmental generate specific harmful "secondary effects" interest" test. Whether the more stringent on neighborhoods, and had selected a Minneapolis Star standard applies is a reasonable means for preventing these effects. question we need not reach, however, because Id. at 52, 106 S.Ct. at 931. we find persuasive Acorn's alternative argument that the license fee scheme cannot The district court rejected Acorn's reliance survive scrutiny even under the Renton test on Minneapolis Star and accepted the City's for content-neutral time, place or manner analogy to Renton. The court held that the regulations. City's panoram licensing scheme, like the zoning provision at issue in Renton, was an The City maintains that the licensing fees "attempt[ I to control the secondary effects of further a substantial governmental interest, panorams," and not an attempt "to regulate because they force panoram businesses to the content of the videos shown on the shoulder some of the police costs incurred by machines." Excerpts of Record ("E.R.") at 7. the City to combat the criminal activity The district court then ruled that the license taking place inside the panoram fee scheme was constitutional because it establishments. Acorn does not dispute the furthered a substantial government interest City's contention that requiring panoram and allowed for reasonable alternative businesses to pay for these costs would be a avenues of communication--the standard for substantial governmental interest if panorams content-neutral time, place and manner posed a special law enforcement problem. regulations the Supreme Court applied in Acorn argues, however, that the City has Renton. See 475 U.S. at 50, 106 S.Ct. at 930. completely failed to prove that panorams on "the Block" are currently conducive to In applying the Renton test, the district criminal transactions. Acorn points out that Copr. a West 1995 No claim to orig. U.S. govt. works 11/B2/95 18:24:59 West Publishing Co.-> rage um 887 F.2d 219 Page 4 (Cite as: 887 F.2d 219, *222) even under the Renton analysis, a city must first time the design and construction of the prove the existence of the "secondary effects" booths. it is seeking to prevent. See Renton, 475 U.S. at 50-51, 106 S.Ct. at 930-31. Prior to the 1986 amendment to the ordinance, the panoram booths were designed We assume, without deciding, that if to provide maximum privacy to the customer. panorams fostered criminal activity, the City The booths were large enough to accommodate would have a substantial interest in more than one person, and private enough to combatting this secondary effect through a conceal any criminal activity *223 engaged in licensing scheme imposed on the panorams. by the people occupying the booth. Because of We agree with Acorn, however, that the the configuration of the booth and the locking licensing scheme at issue here does not further doors, it was difficult, if not impossible, for any such interest because the City has failed anyone outside the booth to monitor what was to prove that panorams foster criminal going on inside. All this changed in 1986 activity on "the Block" or that they serve as when the City amended the panoram the site for more criminal activity than other ordinance to regulate the design of the booths business establishments on"the Block." themselves. The amended ordinance requires that the curtain or door at the entrance to the We recognize that the district court booth be cut off two feet from the bottom so explicitly found that the City's evidence that someone in the main aisle connecting the established that the panorams "foster criminal booths can determine the number of persons activity," E.R. at 33, and that "the location inside. If the booth contains a chair or any and physical configuration of panorams other place to sit, a large window has to be left distinguish them" from other businesses and in the door or curtain providing an pose a "clear potential for criminal use." E.R. unobstructed view of the interior of the booth. at 35. We must uphold these findings unless The booth must be sufficiently illuminated so "clearly erroneous." Fed.R.Civ.P. 52(a). We that someone outside can determine the are bound to them unless we are "left with the number of persons inside and the door to the definite and firm conviction that a mistake booth cannot be locked. Finally, a sign must has been committed." United States v. United be prominently displayed, inside as well as States Gypsum Co., 333 U.S. 364, 395, 68 outside the booth, informing customers that S.Ct. 525, 542, 92 L.Ed. 746 (1948). We are only one person can occupy the booth and that left with such a conviction in this case. The violators will be criminally prosecuted. SMC record yields no evidence to support the 6.42.110. district court's broad finding that panorams foster criminal activity on "the Block." In In sum, the panoram booths are now fact, the City focused its evidence at trial on configured in such a fashion that anyone on criminal activity occurring in the panorams, the outside can determine whether more than rather than the secondary effects of panorams one person is using the booth. It comes as no on crime on"the Block." surprise, then, that the booths are much less attractive now than they once were to those As to the district court's finding about the who would use them for illegal transactions. uniqueness of panorams, the evidence shows Common sense compels this conclusion, as that, while panorams on "the Block" may does the testimony of the police officers who have been used for crimes such as prostitution were called by the City to testify to the and drug dealing before 1986, the evidence amount of criminal activity currently taking fails to show that they continue to pose a place inside the panorams. special law enforcement problem. This change in the level of criminal activity taking place For example, the first officer who testified inside the panoram booths can be traced to the for the City, Sergeant Doman, concluded that City's adoption in 1986 of an amendment to because the 1986 regulations made the the panoram ordinance, regulating for the interiors of the booths visible to those outside, Copr. ©West 1995 No claim to orig. U.S. govt. works 11/82/95 18:26:28 West Publishing Co.-> rage Du b 887 F.2d 219 Page 5 (Cite as: 887 F.2d 219, *223) "people are not willing to use the booths for Officer Englin thought that panorams [criminal] types of activities." Reporter's would be conducive to criminal activity Transcript ("R.T.") at 26. Especially telling is "[beecause they're off the street and they the following exchange between the City's seem--I don't know the why or the counsel and Sergeant Doman: wherefore, I'm guessing because it's [sic] Q: [Currently, is your unit making any out of sight." R.T. at 93. Yet, since arrests in panoram businesses? implementation of the 1986 ordinance A: No,we are not. requiring reconfiguration of the panoram Q: Is it issuing much in the way of citations? booths, he had not made any arrests for A: No,we are not. "sexual misconduct inside a panoram Q: And is there something you attribute that location." R.T. at 98. Officer Rodriguez to? noticed "more known prostitutes that [he] A: [T]he new ordinance regulating the doors knows] that are going into the pan and the viewing ports in the doors. rooms," R.T. at 64, and yet, since 1986, he R.T. at 28. had made only one arrest for prostitution in a panoram booth. R.T. at 62. In these Sergeant Doman's testimony is fully and other instances, officers expressed corroborated by the statements of other unsubstantiated hunches. Such testimony officers responsible for panoram inspection. does not satisfy the City's burden of Officer Niemiec stated that "[law]enforcement showing that the panorams are conducive has lessened because of the door policy, which to a heightened level of criminal activity has changed under the new ordinances." R.T. that might justify imposing special license at 44. Similarly, Officer Wirth noted that the fees on panoram businesses. change in the door policy had "been a great help" because it "made the pan room much At oral argument, the City relied on a less attractive to a criminal conducting illegal statement Officer Niemiec made during trial activity." R.T. at 133. Another officer stated to the effect that criminal activity had that he could not "recall[ ]citing anyone inside increased as more panorams moved onto "the the panorams for violations" within the last Block." Officer Niemiec testified that it was "couple of years." R.T. at 118 (testimony of his observation that "criminal activity seems Officer Ash). Indeed, the district court to gravitate towards where the pan rooms are acknowledged "the fact that the officers located, for some reason." R.T. at 54. This themselves seem to recognize a difference due testimony by Officer Niemiec cannot carry the to the change in ordinance." R.T. at 72. [FN6] day for the City. As we read his testimony, In fact, not a single witness testified that Officer Niemiec did little more than note what criminal activity in panorams is currently appeared to him to be a correlation between great enough to warrant the costs of *224 criminal activity in a neighborhood and the heightened police inspection and surveillance. presence of panorams. The City, however, has Thus, although the panoram booths might never tried to justify the licensing scheme on have been conducive to criminal activity prior the grounds that panorams attract criminals to 1986 because of the privacy they afforded, to "the Block" and the surrounding the district court's finding that panorams on neighborhood generally. [FN7] Rather, the "the Block" currently foster criminal activity City justified the licensing scheme as because of their current configuration or necessary to cover law enforcement costs location lacks record support. stemming from crimes being committed on the premises of the panorams themselves. FN6. Although some officers believed that Nothing in Officer Niemiec's testimony there was some suspicious activity taking suggests that there is a correlation between place on the panoram premises or in the criminal activity in the panorams and booths, the activity rarely became criminal activity in the surrounding criminal activity for which citations could neighborhood. Thus, Niemiec's testimony be issued or arrests made. For example, provides no support for the district court's Copr. ©West 1995 No claim to orig. U.S. govt. works 11/02/95 1E1:27:41 West Publishing Co.-> rage DU( 887 F.2d 219 Page 6 (Cite as:887 F.2d 219, *224) finding that panorama foster criminal activity a substantial governmental interest. Indeed, in the general area. the governmental interest advanced by the City to justify the licensing fees--requiring FN7. Had the City attempted to make panoram operators to pay for the harmful this more general "secondary effects on secondary effects of criminal activity in the the community" argument, it would have panoram establishments--is not supported by had to explain why it does not impose the City's own evidence at trial. [FN8] We special taxes or fees on other businesses now turn to Acorn's challenges to the City's on "the Block" for their contribution to shareholder disclosure rule. the criminal activity taking place in the neighborhood. The City's witnesses at FN8. Moreover, even if the City had trial testified that other business provided such evidence,it would still have establishments on "the Block," in to show, as Judge Wright points out, see particular the Marketplace Tavern, were infra p. 227, why its licensing scheme was used for criminal transactions and added not overinclusive in that it was directed to to the general crime problem in the area. all panoram establishments,whether they Even under the Renton test, a regulatory were located on "the Block" or off "the scheme is unconstitutional if it is too Block," and the City never contends, and underinclusive. See Renton, 475 U.S. at the district court never finds, that 52, 106 S.Ct. at 931. In spite of the panorams located off "the Block" foster problems with such an argument, and the criminal activity, either on their own fact that the City did not raise it, the premises or in their surrounding area. district court, as we noted earlier, focused See Renton, 475 U.S. at 52, 106 S.Ct. at on the general impact panorams have on 931 (ordinance would need to be " "the Block." For example, the district 'narrowly tailored' to affect only that court identified as a relevant issue for category of [panorams] shown to produce trial "the nature and extent of the the unwanted secondary effects"). secondary effects created by panoram machines on the areas in which they U operate." E.R. at 8 (emphasis added). THE CITY'S SHAREHOLDER DISCLOSURE The district court went on to rule that the RULE City "may include as a cost of regulation, police enforcement of the panoram The Seattle panoram ordinance authorizes ordinance and other ordinances within the Director of Licenses to issue reasonable proximity of panoram administrative *225 rules to carry out and establishments." Id. at 10 (emphasis enforce the provisions of the ordinance. SMC added). This broader focus of the district 6.02.050. Pursuant to this authority, the court notwithstanding, it remains clear Director of Licenses promulgated Rule that the City's theory is a more narrow 6.42.040.1, which requires any corporation one relating to crime committed on the applying for a panoram license to provide premises of panorams. As the City itself [a] listing of all shareholder(s), including concedes, the evidence at trial was limited true names and residence addresses, of those to "costs of police enforcement ... incurred shareholders who voted to elect current upon panoram premises.... It did not members of the Board of Directors of the include ... any costs of police enforcement Corporation: Provided, if any such Director incurred off panoram premises." Brief of received the votes of more than 51% of the Appellee at 18. shares held by shareholders, then those shareholders who voted the largest number We thus conclude that the current panoram of shares in support of the Director shall be license fees violate the First Amendment disclosed until the total shares so disclosed under the Renton standard. The City has not - equals or exceeds 51%. established that the licensing scheme furthers Copr. West 1995 No claim to orig. U.S. govt. works 11/0Z/95 18:28:59 West Publishing Co.-> Page t11111 887 F.2d 219 Page 7 (Cite as: 887 F.2d 219, *225) * * * Kitsap County, 793 F.2d 1053, 1058 (9th Cir.1986). As the Supreme Court has If shares in the Corporation are held by recognized, forcing an association engaged in other than individuals, the ownership protected expression to disclose the names of entities must be disclosed to the level where its members may have a chilling effect on that individual owners are identified. expression. Cf. Talley v. California, 362 U.S. Id. [FN9] If a corporate applicant fails to 60, 64,80 S.Ct. 536, 538,4 L.Ed.2d 559 (1960) provide this information, the licensing agency (requiring handbills to display names of their may refuse to process the application. sponsors restricts freedom to distribute However, the rule expressly provides that no information); NAACP v. Alabama ex rel. applicant will be denied a license because of Patterson, 357 U.S. 449, 462, 78 S.Ct. 1163, the identity of any of its shareholders. 1172, 2 L.Ed.2d 1488 (1958) (compelled Rather, "[t]he information will be used solely disclosure of membership lists of political to identify and notify control persons of their advocacy group likely to have chilling effect responsibilities under[the licensing ordinance] on group's activities). This chilling effect and to hold such persons legally responsible exists even when it is not the government's should any provisions of [the ordinance] be intention to suppress particular expression. violated." Id. (emphasis added). NAACP v. Alabama, 357 U.S. at 461, 78 S.Ct. at 1171. For this reason, a compelled content- FN9. It is difficult to discern from the neutral disclosure rule is unconstitutional language of the rule exactly when unless it furthers a substantial governmental shareholder information must be disclosed interest. See Buckley v. Valeo, 424 U.S. 1,64, to the licensing agency. 96 S.Ct. 612, 656, 46 L.Ed.2d 659 (1975). Further, there must be "a 'relevant Acorn argued to the district court that forced correlation' or 'substantial relation' between disclosure of individual shareholders' the governmental interest and the information identities unconstitutionally chills the required to be disclosed." Id. (footnotes and exercise of their First Amendment rights. citations omitted). In the instant case, the [FN10] The district court summarily rejected City of Seattle has failed to identify a this argument, stating that it was "not substantial governmental interest that is persuaded ... that limited shareholder furthered by requiring disclosure of the disclosure chills or unreasonably restricts identity of shareholders of corporations protected speech." E.R. at 13. Moreover, to engaged in the panoram business. the extent any speech might be chilled, the court concluded that "accountability is a The City asserts that requiring corporate sufficiently compelling interest to justify applicants for panoram licenses to disclose the potential burdens on protected expression." names and addresses of their shareholders "is Id. We must disagree. intended to gain accountability, *226 in the least intrusive manner, from the actual FN10. Acorn also appeals the district owners and those responsible for the control of court's rejection of its claim that the a panoram business." Appellees' Brief at 26. Director of Licenses exceeded his In support of its claim, the City offers the authority under the ordinance in deposition testimony of the Director of promulgating the disclosure rule. We Licensing, describing the problems the City agree with the district court that this has historically encountered when trying to claim is without merit. enforce the panoram ordinance because corporate officers and managers were either The City does not dispute that the films and not properly listed on the license application live shows exhibited in panorams are forms of or could not be located. With the shareholder expression entitled to the "same degree of disclosure rule, the City argues, it has the protection afforded speech clearly at the core ability to go beyond the officers and directors of first amendment values." Key, Inc. v. to "identi[fly ... the real 'control persons' or Copr. ©West 1995 No claim to orig. U.S. govt. works 11/02/95 18:30:28 West Publishing Co.-> ruse uuJ 887 F.2d 219 Page 8 (Cite as:887 F.2d 219, *226) policy makers of panorams." Appellees' Brief information and the information required to at 36. be disclosed. The court determined that the disclosure requirement violated the First Because officers and directors, not Amendment because all the information that shareholders, are legally responsible for the the city of Peoria needed for the enforcement management of a corporation's business, we of its adult bookstore licensing ordinance fail to see how the City's interest in could be obtained from the corporation itself. accountability is served by notifying Accordingly, the court concluded that there shareholders that the doors of the panoram could be "no purpose other than harassment in booths be cut off two feet from the bottom or requiring the individual ... stockholders to file that booths be lighted. These are separate statements or applications." Id.; see management, not shareholder, concerns. If also Natco Theatres, Inc. v. Ratner, 463 panoram booths fail to comply with the F.Supp. 1124, 1132-33 (S.D.N.Y.1979). ordinance, the City is free to take appropriate Genusa, therefore, fully supports our enforcement action against the corporation conclusion that a shareholder disclosure and its officers and directors. The most statute that potentially chills protected obvious remedy available to the City is to put expression cannot stand if the information the corporation out of the panoram business sought is not reasonably related to the by revoking its city licenses. In the end, the furtherance of a legitimate and substantial shareholders will be held accountable in the governmental interest in regulating the only way they can be held accountable-- protected activity. through a diminution of the value of their stock. But that will happen automatically In conclusion, we hold that both the license whether or not their names are disclosed to fee scheme and the shareholder disclosure the City. In short, there is no logical requirements of the City's panoram ordinance connection between the City's legitimate violate the First Amendment. Accordingly, interest in compliance with the panoram the judgment of the district court is ordinance and the rule requiring disclosure of REVERSED. the names of shareholders. EUGENE A. WRIGHT, Circuit Judge, In rejecting Acorn's First Amendment Specially Concurring: challenge to the disclosure rule, the district court sought to distinguish the Seventh Although the majority and I agree that the Circuit decision in Genusa v. City of Peoria, panoram licensing ordinance fails to meet the 619 F.2d 1203 (7th Cir.1980), which struck test of City of Renton v. Playtime Theatres, down as unconstitutional a similar Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 shareholder disclosure provision in an adult (1986), I disagree with its conclusion that the bookstore licensing ordinance. Id. at 1217. district court clearly erred by finding that Genusa cannot be distinguished so easily, panorams foster criminal activity. See FW/ however. In that case, the city of Peoria PBS, Inc. v. City of Dallas, 837 F.2d 1298, required the officers, directors and 1304-05 (5th Cir. *227 1988) (Renton applied shareholders holding more than ten percent of to licensing scheme), cert. granted, --- U.S. ----, the corporation's stock to disclose extensive 109 S.Ct. 1309, 103 L.Ed.2d 578(1989). background information. Although the information sought under the provision was of The district court analogized the city's a more personal nature than that sought by panoram licensing ordinance to the zoning Seattle in this case, the Seventh Circuit's provision in Renton, holding that the city was analysis did not focus on the nature of the attempting to control the secondary effects of information to be disclosed. Rather, the court panorams on the areas in which they operated. questioned whether there was any relevant [FN11 It found specifically that panorams correlation between the asserted "foster criminal activity." governmental interest in obtaining the Copr. @ West 1995 No claim to orig. U.S. govt. works 11/0Z/95 18:31:59 West Publishing Co.-> Page H111 887 F.2d 219 Page 9 (Cite as:887 F.2d 219, *227) FN1. The City's evidence established that places for many different types of persons, panoram rooms foster criminal activity. including prostitutes who used them to Even if the panorams are not the sole attempt to solicit business. Although the cause of the criminal conduct, they sergeant admitted that his unit had not contribute substantially to it. Combatting made any prostitution arrests of this effort, preventing the use of customers in the booths,they had arrested panorams for illegal ends, is by all persons working in the panoram accounts an important and substantial establishments. Officer Niemiec had government interest. Thus, the court observed acts of prostitution, persons finds that the City met its burden of proof using narcotics, and others doing lewd on the first issue of fact: panorama create acts in panoram rooms. He stated that substantial secondary effects which the criminal activity seemed to be situated City has acted to prevent. Order at pages around where the pan rooms were located 4-5. and that a portion of the criminal activity "on the Block" used the panoram The majority acknowledges that it must premises. As the majority has noted, he uphold this finding unless "clearly erroneous" observed also that the criminal activity but concludes that: seemed to gravitate toward where the pan The record yields no evidence to support the rooms were located. Officer Rodriguez district court's broad finding that panorams had seen prostitutes working in the foster criminal activity on "the Block." panoram room and had personally made [FN2] one prostitution and one theft arrest. When asked about the type of FN2. I disagree also with the majority's enforcement activity expected in the characterization of the district court's panoram room, Lieutenant Hunt testified finding. It did not find that panorams that there was a potential for more fostered criminal activity "on the Block." criminal activity in the establishments. It found only that panorams fostered Officer Englin had observed narcotics criminal activity. I understand the transactions, the transfer of stolen goods, district court's finding to be that and occasional sexual misconduct in the panorama foster criminal activity at panoram establishments. He thought panoram establishments. That finding is they fostered such activity because they consistent with the city's theory that were off the street, out of sight, and were panorama foster criminal activity on the open late at night. Although he could not premises. It is also consistent with the remember any arrests that had been made evidence presented. The majority in the panoram establishments, he had acknowledges that the city "focused its observed what he believed was criminal evidence at trial on criminal activity activity. He spent approximately three occurring in the panorams, rather than quarters of his time in the panorams and the secondary effects of panorams on only one quarter at other locations. crime on 'the Block.' " Officer Ash had also observed narcotics activity in panoram rooms. When asked If our review was de novo, I might agree if his presence as a uniformed police with the majority's evaluation of the evidence. officer had any effect on persons in the But our review is for clear error, and plenty of panoram establishments, he stated: "I evidence supports the district court's finding believe our presence acts as a deterrent to that panorams foster criminal activity. [FN3] any type of crime in panorams or outside on the panoram sidewalks." Officer Wirth FN3. Sergeant Dorman testified that the also stated that his presence in the new ordinance for booths solved some of panorama acted as a deterrent. the problems at panorams, but that the rooms themselves were still gathering However, I would find the ordinance Copr. ©West 1995 No claim to orig. U.S. govt. works 11/82/95 18:33:1Z West Publishing l:o.-> rage nil 887 F.2d 219 Page 10 (Cite as: 887 F.2d 219, *227) unconstitutional on other grounds. Renton instructs us that an acceptable content-neutral time, place and manner regulation must be "designed to serve a substantial government interest and allow[ I for reasonable alternative avenues of communication." Tollis, Inc. v. San Bernardino County, 827 F.2d 1329, 1332 (9th Cir.1987) (citing Renton, 106 S.Ct. at 930). As part of this analysis, we look to see if the ordinance is narrowly tailored, asking if there is "a logical relationship between the evil feared and the method selected to combat it." Id. at 1332-33 (citing Young v. American Mini Theatres, Inc., 427 U.S. 50, 80, 96 S.Ct. 2440, 2457, 49 L.Ed.2d 310(1976)). Here, the city has presented no evidence that panorams off the Block have any *228 harmful secondary effects on the community. It has attempted to control the secondary effects in panoram establishments on one block in downtown Seattle, but the ordinance applies to panorams not on this block. These panorams contributed approximately 50% of all revenue raised from the licensing scheme. The ordinance is unconstitutional because the city has failed to show that it was sufficiently narrowly tailored to affect only that category of panorams shown to produce the unwanted secondary effects. See Tollis, 827 F.2d at 1333 (citing Renton, 106 S.Ct. at 931). END OF DOCUMENT Copr. ©West 1995 No claim to orig. U.S. govt. works 11/BZ/95 18:33:50 West Publishing Co.-> rage 111C CLIENT IDENTIFIER: 0050-OO1LJW DATE OF REQUEST: 11/02/95 THE CURRENT DATABASE IS CTA9 YOUR TERMS AND CONNECTORS QUERY: TI(KEV +5 KITSAP-COUNTY) LF: ,' . 212 • - BERING v.SHARE June 1986 June 1986: ! BERING v.'SHARE 2U 1 106 Wn.2d 212,721 P.2d 918 106 Wni2d 212,721 P.2d 918 i u; 361, 693 P.2d 81 (1985). Here, however, because of the trial ,, de novo unless the findings of the trial court were based solely on I written or graphic evidence. :; court's misapplication of Gates as the controlling case and g p because.of the dearth of information establishing criminal [3] Injunction Constitutional Law —Freedom of Speech— activity',was afoot, the trial court's probable cause determi- Place Restriction — Federal Constitution — Test. A nation•is reversed. The evidence presented by the State in restriction 'on-the location at which a particular form of speech may take place does not violate the First Amendment if it is neu- ` this case is excluded. State u: White, 97 Wn.2d 92, 640 P.2d tral as to the content or subject matter of speech, furthers a sig- ,; 1061'(1982); State v. Buckley, 145 Wash. 87, 258 P. 1030 • nificant state interest, is narrowly drawn, and permits ample .` (1927). . . alternative channels of communication. :The State argues the "good faith" exception should be [4] Medical Treatment—Access to Medical Facility—State ' applied pursuant to United States v. Leon, 468 U.S. 897, 82 Interest. The State has a compelling interest in maintaining the a3''1.Lt.'Ed. 2d 677, 104 S. Ct. 3405 (1984). We need not, how- ability of its citizens to enter and depart medical buildings so as to ever, reach the "good faith" issue. As the Court observed in • allow them unimpeded access to necessary medical care. t. Leon the magistrate must be provided with "a substantial [5] Abortion Mitigation of Harassment — State Interest. basis for' determining the existence .of probable cause." The State has a compelling interest in protecting a woman's ability . Leon, at 915 (citing Illinois v. Gates, 462 U.S. 213, 239, 76 to effectuate her constitutional right to have an abortion by miti- gating the coercive and harassing impact of antiabortion picketers. ', L:'Ed. 2d 527, 103 S. Ct. 2317 (1983)). Here, the affidavit in ; ` support of the probable cause was no more than a "bare '-'( [6] 'Injunction — Scope — Impact on Constitutional Rights. Injunctive relief must be fashioned so as-to promote the state's bones" affidavit and was invalid. Quality of information, significant interests while having the least possible impact on con not .quantity, is what establishes probable cause. The stitutionally protected activity. • defendant's conviction is reversed. `' L [7] Injunction—Constitutional Law —Freedom of Speech— '' ,'• Place Restriction—State Constitution—Test.The test for ;' ..::UTTER, BRACHTENBACH, DORE, PEARSON, ANDERSEN, CAL- LOW, and GOODLOE, JJ., concur. the validity of a restriction on the location at which a particular ''`'{`` form of speech may take place is the same under Const. art. 1, § 5 -.DURHAM, J.,.concurs in the result. _' 1 �� as under the First Amendment except that the restriction must • t further a Compelling state interest under the state constitution, 'F ' i..2° rather than a significant state interest asunder the federal consti- _. ;,.a; tution. i ---7.-:i' �( [8] Injunction—Constitutional Law —Freedom of Speech— No.51533-6. En Banc. June 19, 1986. ,;"`` [ ] ' Content 1 Restriction —-Federal Constitution — Test. A .; q::,! restriction or outright prohibition of a particular type.of_expres- STACIE C. BERING, ET AL, Respondents, V. SHARE, �F s;;;��;;'%' sion does not violate the First Amendment if it is drawn as nar- ET AL, Appellants. rowly as it Can be to accomplish a compelling state interest. 11 0 [1] `Appeal and Error — Findings of Fact — Review — Sub- °i'°` [9] Juveniles — Hearing Abusive Language —Prevention— i ,:._•�' stantial Evidence — What Constitutes. Findings of fact will N�: State Interest. The State has a compelling interest in prevent- 9 l - . '',• be upheld on review if they are supported by substantial evidence • ing children from being subjected to speech which causes physical in the record, i.e., evidence of sufficient quantity to persuade a ,, ?`• '`_' and psychological harm. • fair-minded,rational person of the truth of the contentions. `' }:' [10] Constitutional Law — Freedom of Speech — Prior ,, "'' '�` Restraint' — Post-Publication Sanction. Restricting future iJ [2] Appeal' and Error — Findings of Fact — Review — Par- ;;•;l.: tial Written Record. An appellate court may not find the facts speech as a sanction for •the past publication of similar speech u :.ti: ,, is 1- 214 BERING v.SHARE June 1986 •, i. June 1986 . BERING v.SHARE 215 106 Wn.2d 212,721 P.2d 918 `T`" 106 Wn.2d 212,721 P.2d 918 1, ':" which abused the right of free speech does not constitute prohib- P, €'=:. age are present at the picket site. ited prior restraint under Const.art. 1, § 5. r': 4 ;. 4: ` W. Russell Van' Camp and Kevin O'Shaughnessy, for _ [11j -Contempt —Injured Party —Recovery of Attorney Fees. appellants. Under RCW 7.20.100 a trial court has discretion to require a con- . -temnor who knowingly and intentionally violated a lawful order to Li' Patrick K. Stiley and Jeffry K. Finer, for respondents. pay the costs and attorney fees of a person harmed thereby. t'{,: :�,j.. Mark J. Hanley, Sara B. Derr, and Monica I. LaBeck, :,;f', DOLLIVER, C.J.,.concurs by separate opinion; ANDERSEN and GOODLOE, f: :'i- amici curiae for appellants. ' JJ., dissent in part by separate opinions; DORE, J., dissents by separate i,,_ .. - opinion;DURHAM,J.,did not participate in the disposition of this case. - - • Nancy Hawkins and Marilyn Endriss on behalf of -: Northwest Women's Law Center, amici curiae. • Nature of Action: The owner of.a medical building and s:.: physicians practicing within the building sought an injunc- . • Gary A. Preble on behalf of Women Exploited by Abor- tion preventing members of an antiabortion organization L;s11. tion, amicus curiae. from picketing in front of the building and harassing 3; John W. Phillips and James E. Lobsenz on behalf of the ir'. patients and staff when entering and leaving the building. : = American Civil Liberties Union, amici curiae. Superior Court The Superior Court for Spokane " r �.. Janet Varon, Franklin W. Shoichet, and Fred Diamond- -. Count No. 85-2-00796-9 Willard A. Zellmer, J., on : Y> :��':.T•:- " stone. on behalf of the National Lawyers Guild, amici March 22, 1985, granted apermanent injunction limiting :'`" j :; �:. curiae. ,: the location of the members' picketing to a sidewalk along a ',,` the side of the building and prohibiting the members from - t PEARSON, 'J.—No judicial task is more difficult than bal- engaging in aggressive and coercive behavior, obstructing '-',- ancing the constitutional rights and freedoms of citizens of access to the building, and uttering the words "kill" and ; this country against conflicting rights and freedoms of their "murder" and their derivatives in conjunction with persons ?; " - fellow citizens. In accepting this delicate task, we recognize 4 and activities within the building. On June 7, 1985, the is ? there can be few absolutes under the constitutions of a court entered civil contempt orders against six picketers for ;:y state and country boasting of such a diverse people. The violating the geographical limitation set forth in the magnificence of the documents under which we have con- injunction; two of the six were assessed attorney fees and r;4" sented to governance lies in their flexibility to accommo- costs. date the conflicting views and lifestyles of the governed. In Supreme Court Holding that the geographical limita7 our role as arbiter, we cherish such flexibility. tion on the location of picketing did not violate federal or L . This appeal presents two principal constitutional issues state free speech rights, that the prohibition against the requiring the accommodation of conflicting rights. First, oral use of the words "kill" and "murder"" was valid insofar •:. : whether a place, restriction in a permanent injunction, as it protected the welfare of children, and that the con- .? ordering antiabortion picketers to.refrain from picketing tempt orders and attorney fee awards :were proper, the a''; : directly in front of a medical clinic in which abortions are court affirms the contempt orders and the injunction, ;; performed, violates either state or federal free speech pro- except as to the,scopie of the verbal prohibition, and' tections? Second, whether a content restriction in a perma- remands• the case to narrow the injunction so that the ver- nent injunction, enjoining picketers' oral use of the words bal prohibition applies only when children under a certain "Murder", "kill", and their derivatives, violates either state 216%-i. BERING v.SHARE June 1986 June 1986 BERING v.SHARE sb 217 106 Wn.2d 212,721 P.2d 918 „. 106 Wn.2d 212,721 P.2d 918 :_ . " la '..pr federal free speech protections? Subject to one limited -' '''. . ............................................ 1-1:5::::::;::::-: L., .qualification which follows, we answer both questions in the , (7. ;.'• 2 ,i-,. -. s -4 , :negative,-holding that the permanent injunction does not iv ,• ... / / t• ,Violate picketers' free speech-rights under the state or fed- :r ' 0 ON P;1 era! COnstitutions.." .;- • Handicap Perking , g c-1 : - Respondent physicians Michael McCarthy, Pamela Sil- verstein, and Stacie Bering practice medicine in offices , . f:, 9- 9- ,, , 1 ra. •. , & located in the Sixth Avenue Medical Building at W. 508 • . . c ....................... r, CZ = :' Sixth Avenue, Spokane, Washington, situated at the corner , . ,,, --•-----'-'-'-'-'-'-'-'-'-'•'---*-----'--- . ..., .—c ,,, .............-.-.,-..........-.- , of Sixth and Stevens Avenues. See illustration. Respondent i'::: = :How.ard Johnson is a general partner/owner of the Medical c CD Pathway Building. The Medical Building is nine stories tall, with a • c single public entrance, a side door, .and a rear door. The side door is locked in winter, and its stairway blocks handi- capped visitors. : 1 ,,,, . . Over two dozen medical offices are located in the 11 build- ing, o ;:. ,.•.:,'''.,-, ,f..!)); - , • 1., .Y.. .:; T:::::::':.::::1::::::::::::::::::::ir:":.:.:.:.:.:.:.:.:.......::::.......X.:.: . . ---, ' ffering a wide range of services including family on - , ,,,. -.:-:f. -------------------:-:-:•:-----x-x-x-:•:•:-:-:-:-:-:-:-:•:-:-:-:- k . ' ':'' -: 0 2 ::::::::::11-. c.1::::::::::::::::-x-:-:-:-:-:-:-:-:-:•:•:-:-:-:-:-:-:-: ented health care, pediatrics, prenatal care, laboratory f ,,. re•—"---- L 1:-:-:-:-:-:-:-:-----:-:-:-:-:-:-:------•:-:-x-:-:-:-:- , procedures, geriatrics, internal medicine, outpatient sur- ,.r,,. ill gery, weight loss counseling, dentistry, psychological coun- seling, and elective abortions. ,f,-,'3,-, i,,. as, , 11.1 December 1984, members. of Share, an informal ",,,,,, P..g• ' • and organization opposed to abortion, began picketing . ,.lh';:Y-,_ ,'' '''. '''.- C2aCID 1 - . :..'sidewalk "counseling" in front of the Medical Building. At ,,,,,Y,,:,:., ‘.:11ttiE',,,.2, :',:\ ::': •; , - ' !E c .i:! A% times, other antiabortion picketers who were not members 1..g , .' .i2,,, of Share were present with placards at the Medical Build- 5 .!,,',,,,' 3P, ' sm.i F:71 ing2:Picketing occurred generally on Fridays, with a morn- !.,i.Oik', —v v• . , . . : ‘7:, , ,- _ :::ing group usually consisting of 2 or 3 picketers, and an ii-. .,..,:i-i . ,(7,-, ;71: ... : afternoon group of as many as 8 to 13. ,:;4:.i..!'•'.f:.: • , ; I . - : ' .... The respondent physicians became concerned for their %:0'iTs! , :•, t2.c . There was substantial conflict between the witnesses' patients' welfare following face—to—face encounters between '.?,,,; v• %,,.. --,v,v, testimony at the show cause hearing. Respondents' evi- picketers and patients. Respondents filed suit in Spokane ''':,?„4 ; dence included live eyewitness testimony, numerous affida- -145 County, in part requesting a temporary restraining order. .:,V..,i . .' . . . L3 vas from patients, nurses, and visitors to the Medical On March 7, 1985, the trial court issued a temporary •';,.::t ',,, . . 1 t ..2- ,,. Building; -and dozens of photographs of picketers at the L it - r:straining order, which was superseded on March 18,' 1985, 1.. : t., following a daylong show cause hearing. The court entered V P,:: ' 'Numerous • .tx., affidavits were filed at the show cause hearing on March 18 1985, a permanent injunction on March 22, 1985. ,::'-' ;3,!;, in accordance with RCW 7.40.060. These affidavits were held by the court until presentment, on March 22, 1985, at which time they were filed with the clerk's .3; A 1k4 218 BERING v.SHARE June 1986 :11June 1986' BERING v.SHARE 219 106 Wn.2d 214„721 P.2d 918 • 106 Wn.2d 212,721 P.2d 918 IN i selves on thepublic sidewalks alongSixth Avenue and at , .' picket site. The evidence detailed episodes of picketers (1) grabbing patients and staff, (2) patrolling the sidewalk in , the only walkway to the main entrance;'(3):picketers had ,r: groups, (3) blocking the sidewalk, (4) causing patients to obstructed the passage of visitors and staff at the Medical ?r,_, Buildin 4 icketin had caused the physicians arid p cut across the lawn—which at times was covered with ice g�` O picketing g ,,.,. and snow, (5) threateningor screamingatpatients who patients'emotional distress, created a substantial risk of 0 4,-, refused to take literature, (6) accusing patients or their •, ". physical and mental harm, and "counseling" had been il doctors of killing babies, (7) telling one patient that she forced upon.persons attempting to enter or leave the prem- ises (5) picketinghad been conducted in an aggressive, j gg would go to hell for seeing particular doctors, (8) interfering _' ; imp;• x;., disorderly; and coercive manner, and in instancesgave rise " with parents bringing young patients to see their respira- _ Y> p1, to a clear andpresent danger topatients; picketing n tory allergist, and (9) interfering with patients in advanced ` g (6) had stages of pregnancy. been conducted in a manner incompatible with the charac- Respondent physicians and a nurse testified that picket- _ -- ter and function of the Medical Building; and (7) picketers K ers interfered with ill patients, placing a pregnant woman had repeatedly referred to physicians practicing in the -'t. Medical Building as killers or murderers in the presence of possibly suffering from toxemia in acute medical danger, r and delaying a patient who was miscarrying a wanted preg- young children. • nancy and bleeding heavily. This last patient had to force . The resulting'injunction prohibits picketers from (1) her way through a group of picketers in order to reach her -_ ' picketing, demonstrating, or "counseling" at the Medical nurse and wheelchair. ;o` Building, except along the public sidewalk north of the bus A pediatric nurse asked picketers to please refrain from - stop on Stevens Avenue; (2) threatening, assaulting, intimi- bothering Dr. McCarthy's young patients because his office 1` F` dating or coercing anyone entering or leaving the Medical did not provide abortion—related services. The picketers e Building; (3) interfering with ingress or egress at the build- .told the nurse to "mo've out" of the building. In addition to <_ i.; ing or parking lots to the south or southeast of the prem- w9;" ises• (4) .tree assin on the remises• (5) engaging in any their sidewalk activity, the evidence showed that picketers trespassing P entered the Medical Building, and even physicians' offices, ]fit.-°: unlawful activity.directed at respondent physicians or their P Y . ,r,.;: . � to advocate their views on abortion. g=.,_ patients; (6) referring, in oral statements while at the ,'•` picket site, to physicians orpatients, staff, or clients as In issuing its order, - P Y e the trial court considered the live .'� �- . ,Y testimony from both parties, all the affidavits, diagrams, _ "`: "murdering" or "murderers", "killing" or "killers"; or to ... children or babies as being "killed" or "murdered" byan ` and numerous photographs depicting picketers arrayed in �P., Y- l groups along the sidewalk in front of the Medical Building. C;y, one in the Medical Building. {t Subsequent to, entryof thepermanent injunction, the Based on this evidence, the court issued its findings and the , g :=�4 q j � € �; . w. court found that picketing and counseling activities contin- �_;; permanent injunction. ; -:; t.: The court found that (1) it had jurisdiction over the :: ued at the Medical Building in violation of the court order. «: parties and subject matter; (2) picketers positioned them- On June 7, 1985, the court entered an order of contempt 1 ,.t _y;1.,;,:.', against icketers Steven Fuhrman, Richard Van Dyke,g P_ Y k'' A`. Daniel Scalf, and Alfred Derby. The findings regarding office and date stamped. Appellants' request to exclude evidence entered after :•? ,,. March 18,1985,cannot apply to the affidavits made available to counsel and the §:- contempt of court by these individuals specifically state ' court before the show cause hearing,notwithstanding their date stamp of March r;> Ps-. 22, 1985. The court specifically stated that it considered all the affidavits before '.,';,> that the contemnors violated paragraph 1 of the March 22, iv,: 1985 order. Paragraph 1 is a geographic limitation. '' reaching its decision. ' ,4 = 1 '6' ,' • ;'-220 BERINGv.SHARE June 1986 June 1986 i BERING v.SHARE 22.f. ii ti 106 Wn.2d 212,721 P.2d 918 106 Wn.2d 212,721 P.2d 918 'IP On June 7 1985, the court also assessed attorney fees of not apply, this court must affirm the trial court's findings if $7,000 and costs of $1,200 against.Grace Gerl and Teresa supported by substantial evidence. ' `•• R '' is which includes a full -Lindley- for their contempt of the permanent injunction. After reviewing the entire record, The court imposed the order regarding fees and costs as a � . day of live testimony, numerous affidavits, and approxi- ,,, result of repeated contempts by Grace Gerl and Teresa ,, mately:100 photographs, we,conclude substantial evidence I _Lindley. The trial court found that contemnors Gerl and ° ' exists to support the trial court's findings. Lindley had "knowingly and intentionally violated the Y' II : : [geographic restriction] of the permanent injunction" on at ;r;+ w' _ PLA• CE RESTRICTION ' „'3 :;;. .;`.least seven occasions between the orders issuance and the : '` `- `A. Federal Constitution `' ,=date :of•the original contempt proceeding. Based on these ., Share argues that the trial court violated picketers' First findings, the trial court issued its order to impose coercive „, , g p ', ': Amendment rights by issuing an injunction imposing a fines and confinement upon contemnors Gerl and Lindley. ':x.-- place restriction upon the picketers' activities. The injunc- We.granted appellants' request to join review of these tion limited picketing to the public sidewalk north of the orders with the appeal of the permanent injunction in order bus stop bench at the northwest corner of the intersection ;.: to dispose of the case in its entirety. ,` of Stevens and Sixth Avenues. See illustration. According • I ;=1 ; • to Share, this:restriction is not a reasonable place restric- EVIDENTIARY SUPPORT FOR INJUNCTION h; ' h.:: . tion, and thus violates the picketers' First Amendment free `.[1] Share assigns error to many of the trial court's find- speech rights. in• gs of fact and argues the permanent injunction lacks evi- '_ qr. The First Amendment provides that "Congress .shall , •: n dentiary support in the record. In Washington, findings of w:r=• make no law I.:. . abridging the freedom. of speech . . . fact supported by substantial evidence will not be disturbed a'l ,i The rights of free speech and peaceable assembly are fun- . ,:-on appeal. Thorndike v. Hesperian Orchards, Inc., 54 damental rights which are safeguarded against State inter- ,��� ��`y Wn.2d 570, 575, 343 P.2d 183 (1959). Substantial evidence ,:F-rh,::f ference by :the due process clause of the Fourteenth ' exists if the record contains evidence of sufficient quantity ,;t-i` Amendment. De Jonge v. Oregon, 299 U.S. 353, 364, 81 L. , to persuade a fair—minded, rational person of the truth of }�'� Ed. 278, 57 S. Ct. 255.(1937). The issuance of the perma- the declared premise. In re Snyder, 85 Wn.2d 182, 185-86, ' i nent injunction by the trial court constitutes State action. `: See Shelley v: Kraemer, 334 U.S. 1, 17, 92 L. Ed. 1161, 68 532 P.2d 278 (1975). n:Viz.; , [2] Share sharply disputes the trial court's findings, and ,., �:,, S. Ct. 836, 3 A.L.R.2d 441 (1948); American Fed n of Labor zz h', v. Swing, 312 :U.S. 321, 85 L. Ed. 855, 61 S. Ct. 568 (1941). J argues that this court should substitute its findings for t.,. i those of the trial court because the trial court based its ;::>:l( ;:• Thus, Share.is entitled to the protection afforded by the findings in part on affidavits and photographs. Although -. .. First Amendment. '; it this court is not necessarily hound by the trial court's find- }A> As a general matter, peaceful picketing and leafletting ings when based solely upon written or graphic evidence, ',.. are expressive "speech" activities protected by the First ! , State v. Rowe, 93 Wn.2d 277, 609 P.2d 1348 (1980), the :. Amendment. United States v. Grace, 461 U.S. 171, 176, 75 i µ' t' L. Ed. 2d 736, 103 S. Ct. 1702 (1983). Furthermore, places trial court in this case also considered considerable live tes- ::.".3: timony • during.a daylongshow cause hearing. Accordingly, - wv,. historically associated with the free exercise,of expressive g g g Y� .;:;,;w,,,. because the rule enunciated in State v. Rowe, supra, does : ei4 r activities, such as streets and sidewalks, are considered 1 ..•. - '. - i t 4,1 222 BERING v.SHARE June 1986 June 1986 BERING v.SHARE 223 ? -a 106 Wn.2d 212,721 P.2d 918 106 Wn.2d 212,721 P.2d 918 0 "public forums". Grace, at 177. In such places, the First . Based.Upon these findings, the court found further that Amendment sharply curtails the government's ability to the picketers' conduct had given rise to a clear and present G' permissibly restrict expressive conduct. danger to patients and.physicians, and the picketers' con- ko: [3] Nevertheless "the First Amendment does not guar- duct was incompatible with the character and function of antee the right to communicate one's views at all times and the Medical Building. These findings, which are supported :' places or m any manner that may be desired." Heffron v. by substantial'evidence in the record, clearly are not International Soc'y for Krishna Consciousness, Inc., 452 related to the content of picketers' speech, but rather to the U.S. 640, 647, 69 L. Ed. 2d 298, 101 S. Ct. 2559 (1981). A way in which they conducted themselves at the picket site. state may impose reasonable time, place and manner -Although only antiabortion picketers are bound by the restrictions upon all expression, whether written, oral or geographic restriction of picketing to Stevens Avenue, that symbolized by conduct. Clark v. Community for Creative in itself cannot be viewed as content regulation. The trial Non-Violence, 468 U.S. 288, 82 L. Ed. 2d 221,227, 104 S. court imposed the place restriction in order to regulate the Ct. 3065 .(1984). Such restrictions2 are valid if they "are '3 conduct of a particular group of persons before the court. A content—neutral, are narrowly tailored to serve a significant similarl restriction which enjoined all picketers of any per- government interest, and leave open ample alternative suasion, regardless of their conduct, would have been overly i channels of communication." Grace, at 177 (quoting Perry t broad. See Beckerman v. Tupelo, 664 F.2d 502, 507 (5th Educ. Ass'n v.'Perry Local Educators' Ass'n, 460 U.S. 37, i,n.. Cir. 1981) (citing Thornhill v. Alabama, 310 U.S. 88.97, 84 31 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983). .. L. Ed. 1093, 60 S. Ct. 736 (1940)). In short,'the geographic 1. Content Neutrality :.^I. '. restriction does not constitute content regulation pro- As stated in Heffron, "[a] major criterion for a valid time, _" 1.'.,, scribed by the First Amendment. • place, and manner restriction is that the restriction 'may j,: '2: Significant State Interest not�be based upon either the content or subject matter of :g A valid place restriction also must "serve a significant 'r, speech.'" Heffron, 452 U.S. at 648 (quoting Consolidated i :`:. Edison Co. v: Public Serv. Comm'n, 447 U.S. 530, 536, 65 L. ;'Y�'`;F: . governmental interest" (Citations omitted.) Heffron, 452 U.S. at 649. Here, the principal justifications for the trial Ed. 2d 319, 100 S. Ct. 2326 (1980)). The trial court justified 1..a i court's geographical restriction were (1) to facilitate actual : the;'place restriction on the factual grounds that (1) the ;. ', . ingress into and egress from the Medical Building, and (2) picketers had obstructed ingress into and egress from the ` : R g g '� ��,, to avoid the heightened coercive impact suffered by Medical Building by physically blocking the sidewalk and - patients, staff and visitors due to the conduct of the pick- pathway leading to the main entrance; and (2) the "aggres-. " "`: eters in close proximityto the onlypublic entrance to the -4. 1 . sive, disorderly, and coercive" nature of the picketing and' ;° Medical Building. "counseling" created a substantial risk of physical and '<_ A litany of Supreme Court cases recognize that the State mental harm to physicians, patients and visitors. ; ; . has a substantial interest in keeping community streets and `r.14, sidewalks open and available for movement of people and 2As discussed with respect to the second constitutional issue, "(aidditional `:<i '.;, j i „ property-See Hague v. Committee for Indus: Org. 307 U.S. restrictions such as an absolute prohibition on a particular type of expression will ' : be upheld only if narrowly drawn to accomplish a compelling governmental inter- • ill: 496, 515, 83 L. Ed. 1423, 59 S. Ct. 954 (1939)•� Schneider v. : i est." United States v. Grace,461 U.S. 171, 177,75 L.Ed.2d 736, 103 S.Ct. 1702 ; ' New Jersey, 308 U.S. 147, 160-61, 84 L. Ed. 155, 60 S:.Ct. 1{ (1983). 146 (1939); Lovell v. Griffin, 303 U.S. 444, 451, 82L: Ed. ; r. 4- . ( 'I 224 BERING v.SHA June 1986 June 1986 • 1 BERING v.SHARE 225 �!" RE 106 Wn.2d 212,721 P.2d 918 106 Wn.2d 212,721,P.2d 918 ,I 949, 58 S. Ct. 666 (1938); Cantwell v. Connecticut, 3'10 U.S. `,I ii .care to citizens. I' 296, 306-07, 84 L. Ed. 1213 60 S. Ct. 900 128 A.L.R. 1352 ,.4 " needed, and sometimes emergency, medical, `i" of the state. (1940); Cox v. New Hampshire, 312 U.S. 569, 574, 85 L. Ed. In Tinker v. Des Moines Indep. Comm'ty Sch. Dist., 393 li; 1049,- 61 S. Ct. 762, 133 A.L.R. 1396 (1941). In Cox v. U.S. 503, 21 L. Ed. 2d 731, 89 S. Ct. 733 (1969) the Louisiana, 379 U.S. 559, 564, 13 L. Ed. 2d 487, 85 S. Ct. 476 Supreme Court held the school district could not punish (1965), the Court indicated that because of the special ` .; students for wearing black armbands to school in protest of nature of the place, persons could be constitutionally pro- the. Vietnam war. In Grayned v. Rockford, 408 U.S.'.104, hibited from picketing in or near a courthouse with the 117-18, 33 L. Ed. 2d 222, 92 S. Ct. 2294 (1972), however, intent of interfering with, obstructing, or impeding the'Court dismissed the idea that Tinker." stood for the the administration of justice. Likewise, in Cameron v. Johnson, 390 U.S. 611, 616, 20 L. Ed. 2d 182 88 S. Ct. 1335 '' proposition that anyone had" "an absolute constitutional right,to use all parts.of a school building or its immediate (1968), the Supreme Court upheld a statute which prohib- environs for his unlimited expressive purposes." According' ited picketing "in such a manner as to obstruct or unrea- . to the Court, the "crucial question is whether the manner sonably interfere with free ingress or egress to and from" 'of expression is basically incompatible with the normal• 1 any courthouse. activity of a particular place at a particular time." Grayned, In Heffron v. International Soc'y for Krishna Conscious- at 116. : . ness, Inc., 452 U.S. 640, 649-50, 69 L. Ed. 2d 298, 101 S. Ct. [4] The trial court found that picketers blocked ingress 2559 (1981), the Court recognized a State's significant and egress.of patients visiting the Medical Building. This interest in maintaining "the orderly movement" of a crowd type of conduct clearly is incompatible with the normal at a large state fair. The Court began bynotingthat "a g activity of the Medical Building—the treatment of persons State's interest in protecting the 'safety and convenience' of requiring medical care. In Grayned, the Court recognized persons using a public forum is a valid governmental objec- that the city had a "compelling interest in having an undis- tive." Heffron, at 650. After recognizing that "consideration rupted school session conducive to .the students' learning of a forum's special attributes is relevant to the constitu- ." Grayned, at 119. Likewise, this State has an equally tionality of a regulation", the Court went on to distinguish substantial interest in ensuring its citizens unimpeded €` :.public streets from a public fairground, notingthat "anyr, access to necessary medical.care. In the trial court's opin- !` comparisons to public streets are necessarily inexact." ion, this interest could be served only by restricting picket- i : Heffron, at 650-51. E ; Admittedly, a public sidewalk differs markedly a from :} ing to Stevens Avenue, away from. the public entrance to f :. 4 the Medical Building. Even if'the State's interest might be la. large ;_�.. g public fairground. Nevertheless, an examination: of served.adequately by a' more narrowly tailored injunction, ,. the special attributes of the Sixth Avenue sidewalk and the . we believe the State has a compelling interest in geograph- facility it fronts convinces this court that there is a signifi- ically restricting the picketing:to.Stevens Avenue. "' cant"State interest in regulation. .As shown by numerous I As stated above, the second principal justification for the 1;; photographs, the sidewalk is relatively narrow; if two peo- place restriction'was to reduce the coercive impact of pick- le are walkingabreast, a third cannot pass. In the winter, (€' P etingu oii staff andpatients of the medical clinic. In He "` P �- �. when there is snow on the ground, the sidewalk only can ron v. International Soc'y for Krishna Consciousness, Inc., is accommodate persons walking single file. Most importantly, supra, the petitioners asserted the State's interest in pro- `. this narrow sidewalk fronts a medical clinic which provides tecting fairgoers from being harassed or otherwise bothered, 1 6". r:: '226 BERING v.SHARE June 1986 June 1986 j BERING v.SHARE 2 •; II 106 Wn.2d 212,721 P.2d'918 i, 106 Wn.2d 212,721 P.2d 918 1 o.. , likening fairgoers to the "captive audience" discussed in i In Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d 147, 93 S. C Lehman v. Shaker Heights, 418 U.S. 298, 41 L. Ed. 2d 770, `?' ` 705 (1973), the Supreme Court held that a constitution: 94 S.-Ct. 2714 (1974). The Court concluded, however, that ±' right,of privacy' protects a woman's decision whether a=:: it need not reach the constitutional sufficiency of that have an abortion.4 Roe v. :Wade, at 153..The right of pri- particular interest because of its holding that the regulation vacy in this context.involves different interests, including a was justified solely by the State's interest in crowd control. woman's freedom to make a decision to have an abortion _ Heffron, 452 U.S. at 650. Thus, the question remains and to be able to effectuate:that decision. See Whalen v. whether a State's interest in reducing the coercive impact . $, , Roe, 429 U.S. •589, 599-600, 51 L: Ed.,2d 64, 97 S. Ct. 869 of protected expressive activity is sufficiently significant to (1977);Family Life League v: Department of Pub. Aid, 132 warrant a reasonable place restriction. ITN ,;- Ill. App. 3d 929, 931-32, 478 N.E.2d 432, 434. (1985). The Speech does not lose its protected character simply :1� right of privacy dictates protection of the private relation- because it may'embarrass others or coerce them into action. �t ship between.a woman and her physician, Roe v. Wade, at NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910, 73 153, and the physician's right to freely practice medicine • L: Ed: 2d 1215, 102 S. Ct. 3409 (1982); Organization for a and perform !legal abortions without coercive outside Better Austin v. Keefe, 402 U.S. 415, 419, 29 L. Ed: 2d 1, restraints. See;Nyberg v. Virginia,,495 F.2d 1342, 1344 (8th 91 S. Ct. 1575 (1971). According to the Supreme Court, Cir.), cent. denied, 419 U.S. 891 (1974). '."[t]here is a 'profound national commitment' to the princi- The ability of a woman to,make and effectuate her deci- ple that 'debate on public issues .should be uninhibited, sion to obtain .an abortion depends upon relatively free robust, 'and wide-open.'" Claiborne, at 913 (quoting New access to the counseling and care of a licensed physician. 11 'York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. Ed. 2d 1 • Similarly, both the abortion decision and.the woman's abil- . 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964)). In the words of. ity to effectuate•that decision necessarily are dependent ;1 Justice Rutledge, "'Free trade in ideas' means free trade 1' upon and intertwined with the willingness and ability of li in the opportunity to persuade to action, not merely to i `. the physician to provide the care and counseling sought by -describe facts." Thomas v. Collins,_ 323 U.S. 516, 537, 89 L. t, t 3This constitutional right of privacyis "founded in the Fourteenth Amend-' Ed. 430, 65 S. Ct. 315 (1945). g f; ;, „ s{''`: ment's concept of personal liberty and restrictions upon state action: . ." Roe v. ,, [b] Notwithstanding our profound national commit- Wade,410 U.S. 113, 153,35 L.Ed.2d 147,93 S.Ct.705(1973).Thus,respondent f' ment" to free speech, the First Amendment admits of no 1'`' physicians could not successfully bring a constitutionally based privacy action 6; absolutes. The Supreme Court has "regularly rejected the against Share on behalf of their patients,even though they otherwise have stand- assertion that people who wish 'to propagandize protests or Zi 1 ing, Singleton v. Wulff, 428 U.S. 106, 113-18, 49 L. Ed. 2d 826, 96 S. Ct. 2868 r: (1976),because Share's activity does not constitute State action.Nevertheless,for { r"views have a constitutional right to do so Wheneve and the purpose of defining a State's interest in a reasonable place restriction, this however and wherever they please.'" (Citations omitted.) '` court recognizes the constitutional protection afforded the right to an abortion. i; ;2 United States v. Grace, 461 U.S. 171, 177-78, 75 L. Ed. 2d The State's interest in protecting this privacy right can be no less substantial than i. I: the interest in imposing a protective order in discovery to accommodate the pri- F' 736, 103 S. Ct. 1702 (1983). This flexibility in First Amend- vacy interests of litigants and third parties. See Rhinehart v. Seattle Times Co., {' ment doctrine is reflected by the principle that speech may 98 Wn.2d 226,654 P.2d 673 (1982),affd, 467 U.S. 20, 81 L.Ed. 2d 17, 104 S. Ct. be regulated in order to serve a substantial state interest. 2199(1984). �' `• Accordingly, itfollows that the State mayregulate even ' g 4Roe u. Wade,supra,recently was reaffirmed in Thornburgh v.American Col- , k "coercive speech if a sufficiently significant interest exists for lege of Ob.&Gyn.,:-U.S.-,90 L.Ed.2d 779,106 S.Ct.2169(1986). ' doing so. l% Ili,.:' G. i:3:; .:' :'(.; :.:i, is 228 BERING v.SHARE June 1986 June 1986 BERING v.SHARE 229 106 Wn.2d 212,721 P.2d 918 106 Wn.2d 212,721 P.2d 918 the patient. See Akron v. Akron Ctr. for Reproductive :;_. tional highs on both sides of the abortion issue, it can 'Health Inc. 462 U.S. 416, 76 L. Ed. 2d 687, 103.S. Ct. 2481 "'i'` hardly be denied that the insidious threat of harassment ' .�;, ;, and harm to physicians performing legal abortions and (1983): As stated by the Court in Akron, at 427, the full P Y P g g ' vindication of the. .1 the terrorism of abortion clinics by antiabortion vigilante woman's fundamental right necessarily requires that her physician be given 'the room he needs to :,1 groups are very real. f: ,. Family Life League, at 932. make his best medical judgment.'" (Citations omitted.) ''`' : _ In Washington, such harassment has "persuaded" physi- As the foregoing suggests, picketing in close proximity to 1't a 1 cians in numerous counties to stop performing abortions. a'clinic in which abortions are provided can be expected to < i' Antiabortionists "have proclaimed 21 counties 'abortion— impinge upon a woman's constitutional right of privacy in free zones' I and announced plans to put pressure on physi- •two ways. First, the very presence of antiabortion picketers :' : " directly in front of the clinic could have such a coercive cians in Washington s other 18 counties. Seattle Post— e. impact upon a woman that she forgoes the exercise of that , ``: Intelligences, Aug. 22, 1985, at Al, col. 2. Amici set forth ` ' the statistics :regarding clinic harassment and violence, right or seeks to exercise it elsewhere under the care of a including the arson attacks on clinics performing abortion licensed or unlicensed physician not of her first choosing. ; If a woman decides to visit the clinic anyway, picketers' t. «'" services in Bellingham and Everett. Although members . conduct actually might have a deleterious impact upon the of Share have not engaged in such violence, the trial court .i - : found their picketing was "aggressive, disorderly, and coer- procedure itself. As recently noted by a federal district (( cive", and that'therefore physicians had a well grounded court judge, :. fear for the continued viability of their lawful medical ' 'Women entering and leaving clinics have been verbally ' • 1 harassed; the effect of such harassment 'has been to ' .. � practice.�.,;} increase the level of anxiety a woman feels and to exac- . `, y conclude, ' - If this harassment continues, we can reasonably 1 '` that the respondent physicians eventuallymight refuse to erbate any emotional problems associated with the abor- P P Y g Y. tion decision and procedure which in turn may have an :Al," participate in a woman's abortion decision. On the other adverse effect on the medicalprocedure itself and on the . hand; if the respondent building owner perceives a serious patient's psychological well—being thereafter. impact upon his ability to fill tenancies in the Medical . American College of Ob. & Gyn. v. Thornburgh, 613 F. l, i',• Building due to such harassment, he might be unwilling to Supp. 656, 666 (E.D. Pa. 1985), affd, _ U.S. —, 90 L. Ed. ';:, execute or renew leases with physicians':who provide abor- , 2d 779, 106 S. Ct. 2169 1986 . These consequences are 1' ( ) q �"'`��'``` tions: Either way, the coercive presence of the picketers unacceptablegiven the constitutionalprotection afforded °' ` -:= directly in front of the Medical Building would severely P fl;:f,., the abortion decision byRoe v. Wade. •'. :, compromise the ability of a woman to' effectuate the abor- Second, continued harassment of physicians as they enter ; � " ' woman's tion decision, !in turn violating the woman s constitutional their lawful place of business may cause them to refuse to w „-. :. right of privacy under Roe v. Wade, supra. Given this erform le al abortions for women. Accordingly, ..ir. P g women ' coast's previous commitment to personal privacy, see, e.g., would be denied the opportunity to effectuate their consti- %' i :}' State v. Koome, 84 Wn.2d 901, 530 P.2d 260 (1975) tutional right to obtain an abortion within the ambit of Roe '''`� g �.'�:� ;��4;c: (minor's right Ito abortion); In re Colyer, 99 Wn.2d 114, 660 v. Wade. In the words of an Illinois appellate court, r P.2d 738 (1983) (patient's right to die); In re Rosier, 105 [r]ecognition of this reality is a significant consideration r, �j Wn.2d 606, 717 P.2d 1353 (1986) (privacy interest in per- here. In our present social climate of dangerous emo- - ;1;:', protection of that right, even from pri- a.,... sonal information), g . ,A . • • . • • , , ,., ::. t tl 230 ' BERING v.SHARE June 1986 June 1986 . •, BERING v.SHARE 23 i l' . , 106 Wn.2d 212,721 P.2d 918 1',' ? 106 Wn.2d 212,721 P.2d 918' 1 i i r, vate mvasion, constitutes a compelling state interest justi- tailored as narrowly as possible to serve the State's interesL. !. 1 ::. fying a reasonable place restriction on picketing. A i• 'With respect.'to the State's interest in maintaining i. r i ingress. and egress, the injunction arguably could be nu- , 3. Narrowly Drawn Injunction 1,. .., rowed without compromising that interest The injunction [6] A state clearly "may serve its legitimate interests, 'l ;:-!• :. but it must do so by narrowly drawn regulations designed could (1) limit the number of picketers, (2) require them to ',:ei remain•a certain distance from the walkway leading to the to serve those interests without unnecessarily interfering ,=•1 with First Amendment freedoms." (Citations omitted.) entrance, (3) require them to picket in single file, or (4) all • 1 : Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, .,of the aboVe.iBy narrowing the injunction, the State could ,637, 63 L. Ed. 2d 73, 100 S. Ct. 826 (1980). Thus, although :i: serve its significant interest in maintaining convenient ., an injunction barring all speech might constitute an uncon- 1 access to medical care without unduly limiting the picket-, 1.:,'; ititutional prior restraint, Near v. Minnesota ex rel. Olson, , -, ers' expressive activities ' 283 U.S. 697, 75 L. Ed. 1357, 51 S. Ct. 625 (1931), a rea- •ij . • ., • In Parkmed Co. v. Pro-Life Counselling, Inc., 110 Misc. q • ' . 2d 369, 442 N.Y.S.2d 396 (1981), a New York trial court sonable place restriction narrowly tailored to serve a signif- enjoined antiabortion picketers from demonstrating or icant state interest does not violate the First Amendment. picketing on the steps and plaza area of an abortion clinic. See Heffron v. International Soc'y for Krishna Conscious- ness, Inc., 452 U.S. 640, 654, 69 L. Ed. 2d 298, 101 S. Ct. 1 . On appeal, the New York Supreme Court, Appellate Divi- 2559 (1981). To determine whether the necessary nexus ,,.. ce, ,t,•; sion, struck„,down this portion of the injunction on the exists, the court must compare the identified state interest .; 2 ground that 1 it "was overly broad and unnecessarily i with the terms and effect of the injunctive relief. - , A ,: restricted peaceful picketing and demonstrating 'St , As set forth above, the State has a compelling interest in ,A Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551, some might argue 457 N.Y.S.2d 27 (1982). Likewise, ' I maintaining ingress and egress of its citizens into and out of 552,medical buildings to permit convenient access to medical 1 : that the injunction at issue in this case is broader than care. Likewise, the State has a compelling interest in pro- ,A necessary, thereby prohibiting peaceful, controlled picket- .i.i. , tecting a woman's ability to effectuate her constitutional ing that does not impede ingress or egress. right to obtain an abortion by mitigating the harassing , , -I Nonetheless, focusing upon the State's interest in pro- effect of antiabortion picketers The trial court's place 7,-,i ; - tecting a woman's constitutional right of privacy, we believe . , . s 1 restriction requires picketers to restrain their activities to i''' . the injunction is tailored as narrowly as possible to effectu- Stevens Avenue, away from the building's entrance and the 4 ate that interest An injunction which permitted any anti- sidewalk fronting the building. 'tt L;;--. abortion picketing on the Sixth Avenue sidewalk would not i -, 'A,.-., This place restriction clearly serves the State's interest. --4 1----F. , adequately serve the State's compelling interest in protect- Under the terms of the injunction, all interference with -,q1 ,. , ''44 i'':'' ing a womari's constitutional right of privacy from the ingress and egress has been eliminated. Furthermore, 3.1 Vi:,• coercive impact generated by the presence of the picketers 3 1 restriction of the picketing to Stevens Avenue can be ,:t in front of the Medical Building. In the absence of a place ''1$ ',:I expected to mitigate the severe emotional impact otherwise .:..;-t , , restriction, women visiting the clinic for abortion-related experienced by many patients, especially women who are services would be forced to walk a gauntlet of placard-car- . 1 •4 i:c. . visiting the Medical Building for abortion-related services. 1 ;f-- • rying antiabOrtionists Even if all picketers agreed to Thus, the only question is whether the injunctive relief was refrain from 'using "harassing language", it is difficult to -1 ''t ','' ascertain what constitutes "harassment" in the apprehen- • .:: '; i 1, •,,,;..z_z,„,:•.: , „ 1 : •,e.!'-, likt4,f,•••,1.-, : '-1147, '..d.Z.:,-5cu''':1,-; I I P 232 BERING v.SHARE June 1986 '`+'#r. June 1986 • ' BERING v.SHARE 233 k 106 Wn.2d 212,721 P.2d 918 ,;0:., : 106 Wn.2d 212,721 P.2d 918 {�; sive mind of a woman coming face-to-face with the picket- ''' sons entering the Medical Building. If anyone desires to ers.':By restraining picketing to Stevens Avenue, the court -',." engage them in conversation, it is a very short walk to the . can avoid conjecture on this point, knowing that the . end of the block where picketers are free to "counsel". g privacy p permis- Accordingly, the injunction provides an. alternative forum woman's right of rivac is rbtected to the extent • f . sible under the First Amendment. . t providing ample opportunity for communicative activity, ia' : 4. Ample Alternatives ,` , ; B. State Constitution •., .'For the injunction to be valid as a place restriction, "it . Share argues that the place restriction violates article 1 must also be sufficiently clear that alternative forums for 'section:5 of the Washington Constitution, which provides the expression of [appellants'] protected speech exist -' t that "[e]veryperson mayfreelyspeak, write andpublish on P [ PP ] P L P � despite the effects of the [injunction]." Hef iron, "at 654. :y all subjects,'being responsible for the abuse of that right." According to the Court in Heffron, "[t]he First Amendment Two questions must be resolved. First, whether the picket- protects the right of every citizen to 'reach the minds of ;} ing as described in the trial court's findings constitutes an willing listeners and to do so there must be opportunity to abuse of the right of free speech under article 1, section 5. win their attention,"' Heffron, at 655 (quoting Kovacs v. Second, the 'extent to which a Washington court may Cooper, 336 U.S. 77, 87, 93 L. Ed. 513, 69 S. Ct. 448 restrict the time,'place and manner of the exercise of free , :`,. (1949)). The trial court's place restriction does not fall afoul •k a;; . ' . speech rights when abuse is shown. of these principles, ~: $ :°' As stated previously, the trial court imposed a place t.:s :*i.First, the injunction does not prevent Share from picket- "4 <' restriction in the permanent injunction because (1) picket- : , ". ' ing anywhere in the city, except upon a limited stretch of A<`;,: ers were impeding ingress into and egress from the Medical ,, sidewalk fronting the Medical Building, Thus, the injunc- .,4"`` • Building, and (2) the aggressive, disorderly and coercive tion is not subject to the same attack raised in Near v. ;'' nature of the picketing and counseling created a substantial Minnesota ex rel. Olson, supra, or Organization for a Bet- :y- risk of harm to physicians; patients and visitors. Although ter Austin v. Keefe, 402 U.S. 415, 29 L. Ed. 2d 1, 91 S. Ct. . , _ Washington extends broad protections to speech under 1575 (1971). Second, the First Amendment does not afford A^f. article 1, section 5, State v. Coe, 101 Wn.2d 364, 679 P.2d Share the right to a captive audience, ., g p s but rather the Y, ,:,:, 353 (1984), reason dictates that Washington's constitutional opportunity to win the attention of passersby and engage ; `' protection does not extend to the picketing as described in z 4 :5 : . them in conversation if the latter so desire. The injunction ' ; the trial court's findings of fact. We believe Share picketers does not prevent Share from picketing at a point reason- r abused their speech rights. by blocking ingress and egress ably close to the Medical Building and the people Shire • ;,` , and by engaging in coercive and disorderly picketing 'in wishes to address.The signs carried by the picketers clearly , I'r:. front of a medical facility offering needed medical services are visible to anyone entering the building, Picketers "are :,. ;;,,; • to citizens of this state. Such picketing clearly impedes not secreted away in some nonaccessible location", Heffron, :::7 access to health care, and es eciall im in es . � '�'�::, P Y upon P g : 452 U.S. at 655 n.16, but are located in plain view of per- :, ' ;`:::,' women's constitutional right to make and effectuate the ;,s, abortion decision. 5As stated in Cox v. Louisiana, 379 U.S. 536,555, 13 L.Ed. 2d 471, 85 S.Ct. Because Share's picketing constitutes an abuse of the 453 (1965), "[a] group of demonstrators could not insist upon the right to cordon :. '• `• . off. . .[an]entrance to a public or private building,and allow no one to pass who -.;-,,tt`:,.!., right of free speech, we must determine the extent to which • did not agree to listen to their exhortations." 44 the trial court could impose reasonable time, place and ;sw; a 234 BERING v.SHARE June 1986 _=,. , June 1986 • BERING v.SHARE . 235 106 Wn.2d 212,721 P.2d 918 {+ 106 Wn.2d 212,721 P.2d 918 ,,Y !manner:. restrictions consistent with Const. art. 1, § 5. .. recently decided by the Supreme Court, we conclude tilt,.?, `.! 'As yet, the court has not enunciated a separate and inde- the doctrine of prior restraint is inapplicable to this case. pendent state doctrine for analyzing time, place and man- The Supreme Court first enunciated the doctrine of prior ner restrictions under Washington's constitution. In Alder- restraint in Near v. Minnesota ex rel. Olson, 283 U.S. 697, wood'Assocs. v. Washington Envtl. Coun., 96 Wn.2d 230,. : 75 L. Ed. 1357; 51 S. Ct. 625 (1931): In Near, the State 245, 635 P.2d 108 (1981), the court cited Supreme Court • ii successfully obtained a permanent injunction against an precedent for the proposition that "[n]o one has an abso- ;I allegedly malicious, scandalous and defamatory newspaper lute right to free speech. The time, manner, and place of . . for violation: of a state statute prohibiting such publica- the exercise of that right may be regulated." (Citations tions. The Court struck down the statute on the ground omitted.) , that it constituted an impermissible prior restraint, which [7] Although the free speech clauses of the state and the',Court characterized. as "the essence of censorship.". federal constitutions are different in wording and effect, our N z Near, at 713. The Court indicated the important distinction confidence in the general federal analysis prompts our between prior restraint and subsequent punishment, noting 1 ' adoption of much of this methodology for application in that libel laws were the appropriate means of regulating state constitutional cases. We do diverge, however, from the " ,, expression. Near, at 715. . Supreme Court on the State interest element of the time, A • In Organization for a Better Austin v. Keefe, 402 U.S. place and manner test, as we believe restrictions on speech 415, 29 L. Ed. 2d 1, 91 S. Ct. 1575 (1971), the Court struck can be imposed consistent with Const. art. 1, § 5 only upon down an injunction which prohibited publication "of any t showing a compelling State interest. kind" that criticized the business practices of a real estate ti Henceforth, time, place and manner restrictions may be broker. In Keefe, the Court'compared the injunction in.that imposed whenever the right of free speech under Const. art. " .'a' case'to the statute in Near, rioting that "[h]ere, as in that 1, § 5 has been abused, but only if the restrictions (1) are case, the injunction operates, not to redress alleged private 11, content neutral, (2) are narrowly tailored to serve a corn- ;: ••„- wrongs, but to suppress, on the basis of previous publica- ii ellin State interest, and (3) leave open ample alternative "` :' tions, distribution of literature 'of any kind' in a city of p gP P � channels of communication. In this case, our analysis of the r"' .,'" 18,000." Keefe, at 418-19. place restriction under federal law leads us to the same ' The injunction in this case differs from the injunction in conclusion under our constitution, and for the same rea- Keefe in two important respects. First, the respondents' sons. Accordingly, we hold the place restriction in the per- only purpose in seeking the injunction was to "redress I, manent injunction does not violate article 1, section 5 of the ',, ; ,: alleged private wrongs", both past and prospective, suffered Washington Constitution. • x. " by the respondents and their patients. Second, the injunc- w: .:., tion ultimately obtained did not suppress speech "of any III `` 'M� `'~="' kind", but rather particular words which the trial judge CONTENT RESTRICTION y,".1;t,t11l i;:;_;.,•, ::,,;, ,.�:;a ::-:,. feared would have an adverse impact on young children A. Federal Constitution ,' t,: .: ; . � � E. , visiting the clinic. In short, this is not the classic prior Share argues that the content restriction in the injunc- _ -,, i";-,v, .: "murder", "kill" 'i.:;!, 2•,w '•., restraint'described in Near or Keefe, and the doctrine of iE tion, prohibiting the use of the words murder , and ,.q:.. • ; . . 0 their derivatives constitutes an unconstitutional rior =T# prior restraint should not be applied to this case. ' p ''';n `' Regardless, several recent Supreme Court• cases indicate e restraint. After reviewing numerous First Amendment cases ' ;'=:'- : that a new form of analysis will be employed whenever a i 236 BERING v.SHARE June 1986 _ r June 1986 . BERING v.SHARE •237 106 Wn.2d 212,721 P.2d 918 ',7" 106 Wn.2d 212,721 P.2d 918': 1 ""•;;it's.:,=. estate regulates the content of speech. See Careyv. Brown Thus, contraryto what the'parties• argue, the issue befol;c il 447 U.S. 455, 465, 65 L. Ed. 2d 263, 100 S. Ct. 2286 (1980); 'k ,` us is not whether the content restriction constitutes a prior 3 Consolidated Edison Co. v. Public Serv. Comm'', 447 U.S. `�' restraint, but whether the restriction serves a compelling 6, 530, 540, 65 L. Ed. 2d 319, 100 S. Ct. 2326 (1980); Widmar �i1!''' State interest, and is narrowly drawn to serve that interest. i' v. Vincent, 454 U.S. 263, 270, 70 L. Ed. 2d 440, 102 S. Ct. '� 1 1. Compelling State Interest 269 (1981); Perry Educ. Ass'n v. Perry Local Educators' In issuing the permanent injunction, the trial court spe- Ass'n 460 U.S: 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 ._s ." > 4. n�:. cifically found that the picketers repeatedly used the words (1983); United States u. Grace, 461 U.S. 171, 177, 75 L. Ed. ''i `:i., - 'kill", "killing", "killer"," "murder",•"murderer" and "mur- 2d 736, 103 S. Ct. 1702 (1983); Members of City Coun. v.• <'M-�;'. dering" "in indiscriminate connection:with physicians and •`Taxpayers for Vincent, 466 U.S. 789,.80L. Ed. 2d 772, 786, ,;: " ►,;�.. in the presence of young children . . . Based upon medical -104 S. Ct. 2118 (1984). Several of these cases are classic 't,y testimony, the court found further that use. of such words prior restraint cases, yet the doctrine is unmentioned. 'py . ,<' In Police Dep't v. Mosley, 408 U.S. 92, 95, 33 L. Ed. 2d ...i p�.-:: had "inflictaendd tr. aum . a upon,their the childrenutterance over. . h. earingharm such references : by very ed the 212, 92 S. Ct. 2286 (1972), the Supreme Court stated that ., '.' doctor—patient relationship essential to the effective deliv- "above all else, the First Amendment means that govern- :;j ery of health care." ment has no power to.restrict expression because of its '3 :'',': . • Based upon these findings, which are supported by sub- messaa its ideas, its subject matter, or its content. (Ital- .. q,-, -. message, , .g stantial evidence in the record, the"trial court enjoined ics ours:) Eight years later, in Carey v. Brown, supra, the ;-,�J tr.' Sharepicketers from orallyreferring; at the picket • Court indicated its willingness to retreat from its absolute ,.61",` g s ` ':;z�� ;' , site, to physicians,. patients and staff- as "murdering", ban on content regulation. In Consolidated Edison Co. v. i• "murderers" "killing", "killers". Public Serv. Comm n 447 U.S. 530, 65 L. Ed. 2d 319, 100 S. `.1 i' "- " murderers , killing , or killers . Furthermore, the trial N' : court enjoined oral statements by picketers, while at the Ct. 2326 (1980), decided the same year as Carey, the Court °;-� picket site, to children or babies as being "killed" or "mur- 'affirmatively stated that "[w]here a government restricts • ,t dered" by anyone in or connected to the Medical Building. the speech of a private person, the state action may be sus- -;t,- -:' tamed onlyif thegovernment can show that the regulation ?, r The court, however, did not enjoin the printed use of these g '''i rr` words on the picket signs themselves, as it correctly is a precisely drawn means of serving a compelling state s;;;.>-. assumed such an injunction would violate state and federal interest" Consolidated Edison, at 540. constitutional protections. The question •is whether the [8] The litany of cases cited above all phrase the test :;:'?:i :',4^�, State has a compelling interest in protecting such children similarly: content regulation, including "an absolute prohi- ' i?' '- by limiting the oral expression of the proscribed words at bition on a particular type of expression[,] will be upheld } '`:", the picket site. only if narrowly drawn to accomplish a compelling govern- -`•• '''' mental interest." United States v. Grace, supra at 177 (cit- .` 'u�` `" Share relies heavily upon O.B.G.Y.N. Ass'ns v. Birthright 'i-,,'' of Brooklyn & Queens, Inc., 64 A.D.2d 894, 407 N.Y.S.2d . ing Perry Educ. Ass'n, at 46; Widmar v. Vincent, supra): =; ''f` ' ' '=� 903 (1978)" which held unconstitutional an injunction pro- .' c;: hibiting abortion picketers' use. of the words "murder", eIn Carey v. Brown, 447 U.S. 455, 465, 65 L. Ed. 2d 263, 100 S. Ct. 2286 •;�,;°� ;?. (1980) the Court stated that "we might agree that certain state interests may be .: "kill", and similar words on placards. Two observations so compelling that where no adequate alternatives exist a content—based distinc- s g g re ardin O.B.G.Y.N. are worth noting. First, O.B.G.Y.N. is tion—if narrowly drawn—would be a permissible way of furthering those objec- ,''r: " factually distinguishable from this case in that the trial tives. . ." f ,` • aljai o BERING v.SHARE ' 238 BERING v.SHARE June 1986 June 1986 239 s 106 Wn.2d 212,721 P.2d 918 {•, 106 Wn.2d 212,721 P.2d 918 court here did not enjoin the use of such words on the the. Court, parents and teachers, "who:have this -primary picketers' placards; it only enjoined the oral expression of . responsibility for children's well-being are entitled to the such words. Second, and more important, O.B.G.Y.N. was :`';3,,` support of laws designed to aid discharge of that responsi- decided 2 years prior to the decision in Consolidated Edi- bility." Ginsberg, at 639.. Likewise, parents of children vis- , ( son, in which the Supreme Court held that content regula- iting the Medical Building are entitled to explain the tion was permissible if it served a compelling state interest " concept of abortion to their children personally, and only • and was narrowly tailored to serve that interest. Consoli- when they believe the children are able to understand it. dated Edison, 447 U.S. at 540. The court in O.B.G.Y.N. 4k Furthermore, parents are entitled to the State's protection relied upon Police Dept v. Mosley, supra, and its absolute }j},'; of their children from -the potentially harmful effects - ban on content regulation, from which the Supreme Court i caused by the proscribed speech. "has since retreated. See Consolidated Edison. Accordingly, :`# , Second, the Court found that the State has an "indepen- O.B.G.Y.N. provides very limited guidance on whether the .` dent interest in the well-being of its youth." Ginsberg, at First Amendmentprotects the wordsproscribed in this - t ': 640. According to the Ginsberg Court, it "recognized that �:=. case. We believe the Supreme Court itself has provided the ? the State has an interest 'to protect the welfare of children' guidance we seek. and to see that they are 'safeguarded from abuses' which :For example, in Ginsberg v. New York, 390 U.S. 629, 20 ; 4,_ : might prevent their 'growth into free and independent L. Ed. 2d 195, 88 S. Ct. 1274 (1968), the Supreme Court ;, f. ' well-developed men and citizens.'" Ginsberg, at 640-41. reviewed an obscenity statute which prohibited the sale of • '`� '. The-Court concluded that exposure to the materials pro- •"girlie".magazines to children under 17. After noting that :, '?,: scribed constituted such an "abuse", and upheld the State such magazines were not obscene for adults, .Ginsberg, at ,43 1-, statute. Likewise, this state has an interest in preventing 634 (citing Redrup v. New York, 386 U.S. 767, 18 L. Ed. 2d a'. the "abuse" !suffered by young children hearing the pro- :,.1 515; 87 S. Ct. 1414 (1967)), the Court recognized the state's ;',.i:! : scribed words just before they visit their doctors. power to regulate dissemination of such material to minors. •y`• ?: In FCC u. Pacifica Found., 438 U.S: 726, 57 L: Ed. 2d Although the Court rejected the notion that the statute c 1073, 98 S. Ct. 3026 (1978), the Federal Communications invaded minors' constitutionally protected right to view _-':' . Commission 'issued an order indicating it might impose the material, the Court stated that "we have recognized '` __ later sanctions on a radio station that broadcast George that even where there is an invasion of protected freedoms /r ;.•:: Carlin's monologue, entitled "Filthy Words", which aired 'the power of the state to control the conduct of children :. ,;, during the early afternoon when children were listening. In reaches beyond theover adults. rs;� ',y:'.,. Y scopeauthority of its a plurality opinion, the Supreme Court upheld the Com Ginsberg, at 638 (quoting Prince v. Massachusetts, ::' , mission's order, reversing a Court of Appeals decision which g g -�<<- 321 U.S. 158, 170, 88.L. Ed. 645, 64 S. Ct. 438 (1944)). :� 1 . had reversed the Commission. ,; , ` r .. In his concurringopinion, Justice Powell conceded that The Court in Ginsberg offered two distinct justifications _ , for its conclusion that the "well-being of its children is . . . :' • ;;! the "Filthy Words" monologue was not "obscene" in the a subject within the State's constitutional power to regulate '.�'i'.`4a::_'< constitutional sense, nor did it constitute "fighting words" •. . ." Ginsberg, at 639. First, the Court asserted that under ;5'` within the meaning of Chaplinsky v. New Hampshire, 315 the federal constitution "the parents' claim to authority „ ;? �t:-: U.S. 568, 86 L. Ed. 1031, 62 S. Ct. 766 (1942). Justice Pow- . to direct the rearing of their children is basic in the '.:-, -3`K ell recognized that Carlin could not be punished, consistent structure of our society." Ginsberg, at 639. According to `` i with the First Amendment, for delivering the same mono- r: 240. BERING v.SHARE June 1986 '', .. June 1986 i BERING v.SHARE 24 106 Wn.2d 212,721 P.2d 918 I 106 Wn.2d 212,721 P.2d 918' Y'_-, 'logue to a live audience composed of adults. Likewise, he a shock treatment". Although the State has a lesser interer:• , assumed that an adult could not constitutionally be pro- x in regulating;such words when directed to::adults, there is a hibited from purchasing a recording or a transcript of the compelling state interest in preventing the harm perceived monologue and playing or.reading it in the privacy of his by the trial court when such words are heard by children. home:FCC v. Pacifica.Found., supra at 756-57 (Powell, J., Unlike the courtroom audience in Cohen v. California, 403 concurring). According to Justice Powell, however, the issue U.S. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780, reh'g denied, 404 • was whether the Commission could impose civil sanctions ',: U.S. 876 (1971),7 children entering the Medical Building on the radio station for broadcasting the monologue during - cannot avoid this harm by simply averting their gaze, but the early afternoon. Answering the question in the affirma- .`if i- rather are subject to it until safely out of earshot. Similarly, tive, Justice Powell found "strong support" for the Com- :s' : unlike the children in Pacifica Found., children visiting the !:l',..'.',, ,. mission's holding in its concern to prevent the language Medical Building cannot tune in to a different station or from reaching the ears of unsupervised children who were , :4;:. • tune out completely; they cannot avoid hearing the pro- likelyto be in the audience at that hour. Pacifica Found. .,,i,'Y scribed language while in the picketers' vicinity. Accord- fi � .r;, at 757. :-;:a ; ingly, the State in this case has a:compelling interest in Justice Powell stated that "[t]he Court has. recognized • 4q, avoiding subjection of children to the physical and psycho- _ society's right to 'adopt more stringent controls on commu- .`::'�A`r logical abuse!inflicted by the picketers' speech. Y g P g . _ nicative materials available to youths than on those avail- .r�: . able to adults.'" Pacifica Found., at 757 (quoting Erznoznik - t�.r. 2. Narrowly Drawn. I v:Jacksonville 422 U.S. 205 212 45 L. Ed. 2d 125 95 S. Ili As stated above, an injunction imposing an absolute pro- ' }�y;;:< ' ,- =�' hibition on. a particular type of expression must be. nar- Ct. 2268 (1975)). According to Justice Powell, [t]his recog- M :''. i nition stems in largepart from the fact that 'a child . . is "=sfi•.,. rowly drawn!to serve the State's interest. United States v. g :: Grace, 461 U.S. 171, 177, 75 L. Ed. 2d 736, 103 S. Ct. 1702 not possessed of that full capacity for individual choice ..k..-- Erznoznik v. Jacksonville, supra'at 213 which is the.presupposition of First Amendment guaran- .�4=ry{�. ; (restri See, e.g., •J`+�. (restriction aimed at prohibiting youths from viewing films tees.'" (Citation omitted.) Pacifica Found., at 757. In char- ;;3,"4,.. acterizing repetition of the words used by Carlin as "verbal : ; involving nudity impermissibly broad because not all ;.. - shocktreatment" Justice Powell stated that � : nudity deemed�obscene,even� as to minors). The State's ' ;}:b .,_. interest in this case is to prevent the physical and psycho- children may not be able to protect themselves from pit;::. logical harm of young children caused by use of-the pro `speech which,'although shocking to most adults, gener- : .�" < �nF.: ;ally may be avoided by the unwilling through the exercise i y. scribed words . : of choice. At the same time, such speech may have a �, :! ' :l 7The importance of context in.free speech cases is illustrated by the case of deeper and more lasting negative effect on a child than i3O '•, p '. ` Cohen v. California, 403 U.S. 15, 29 L. Ed. 2d 284, 91 S.Ct. 1780,reh'g denied, on an adult. For these reasons, society may prevent the ,r.i;;.. 404 U.S.876(1971),which arose when Paul Cohen entered a courthouse wearing a general dissemination of such speech to children, leaving }:: jacket emblazoned with the words ^Fuck the Draft". In holding that criminal toparents the decision as to what speech of this kind : . . P t sanctions.against Cohen were unconstitutional; the Court rejected the argument their children shall hear and repeat . : . ` Although that his speech 'would offend unwilling listeners. Cohen, at 22. Althou h the Pacifica Found., at 757-58. t' ' .' - courthouse audience could avoid the offensive speech when simply printed on an i,"r:;. article of clothing,members of the Court have indicated a different result might [9] Justice Powell's concern for the welfare of children '; •' «; •�.:;# '"�; , ( obtain when similar words' are spoken orally in the presence' of children. See is particularly applicable to this case, in which the use of ' Rosenfeld v. New Jersey, 408 U.S. 901, 903, 33 L. Ed. 2d 321, 92 S. Ct. 2479 the proscribed words arguably was intended as "verbal 4 .i.,:; (1972) (Powell,J1,dissenting). 242 \I' BERING v.SHARE June 1986 - uF i BERING v.SHARE • _� �" June 1986 ' ( ' 243 106 Wn.2d 212,721 P.2d 918 ' `'''. , - ;r " 106 Wn.2d 212,721 P.2d 918 The injunction, however, applies to all use of such words, �-`�>I't: restraint, we will strictly interpret our•state constitution to regardless of whether children are present. Thus, it is "_:: .',' favor free speech' rights, even if such speech would not drawn more broadlythan necessaryto achieve the State's ' °' :`� be protected by the first amendment to the United States interest. As stated in Stanley v. Georgia, 394 U.S. 557, 564, -'_`• Constitution. = 22 L. Ed. 2d 542, 89 S. Ct. 1243 1969 the "right to receive 5''.}- ( )► g [10] The. content restriction in the permanent injunc- information and ideas, regardless of their social worth . . . :`l: ' tion in this case, however, is riot the classic prior restraint is fundamental to our free society." The injunction cannot w of which we spoke in Coe. In Seattle. v. Bittner, 81 Wn.2d water down speech to make it suitable for the sandbox. -`f'-' 747, 505 P.2d 126 (1973), this court defined prior restraints .Accordingly, the injunction must be narrowed. ;;;fir;;;_ as "official restrictions imposed upon speech or other forms •, ::The record in this case contains medical testimony by :r'' of expression in'advance of actual publication." Bittner, at ' one of the respondent Physicians sicians that the impact of such ; `•�`..�,.. P P Y P : - 7;,r,,' 756 (quoting Emerson,'The Doctrine of Prior Restraint, 20 language would be most severe on children under the age of . s ',`•; Law.& Contemp.'Probs. 648 (1955)). In this case, however, 12. Because we are remanding the case on this point, the ,A=,i-' the trial court imposed the content restriction after actual trial court maywish to take additional medical testimony ` L I' ; : publication and only to prevent further harm to young to determine the appropriate ro riate age limit. Furthermore, : 1:'i'.'' children who otherwise would be subject to the harmful because it may be difficult to ascertain whether a child is ayi_,.` effects of the proscribed words. Thus, unlike the order in , under the identified age, the trial court may wish to provide; Coe, the content restriction in this case does not "fit neatly additional guidelines for determining when picketers ' within the;definition of prior restraints . . ." Coe, at 372. should refrain from using the proscribed words. Regardless, -;: The injunction in this case is a post-publication sanction. the injunction must be narrowed to proscribe the offensive ,- Whether speech is regulated before or after publication is language when children of the chosen age arepresent : only g ��:,',:': ' crucial under our state's constitution. Under article 1, sec- at the picket site. ,:'.> tion 5 of the Washington Constitution, "[e]very person may - }- : is !`` ,f.; . :::;,;I:"` `'; freely speak . . . being responsible for. the abuse of that B. State Constitutionar } ` Share argues that the content restriction in the in'unc- �''- " ' right" Because the right to speak freely cannot be abused LJ ' tion constitutes a prior restraint, prohibited by Const. art. '<•: until exercised, before it is exercised there can be no 1, § 5. In State v. Coe, 101 Wn.2d 364, 374, 679 P.2d 353 : _ responsibility. Prepublication restraints prohibit exercise of (1984), the court stated that "the plain language of'Const. - , ';L the right before any abuse of the right can be shown, thus w!; imposing responsibility in contravention of the express lan- art. 1, § 5 seems to rule out prior restraints under,any cir- -5; }., ' guage of Const. art. 1; § 5. Post-publication restraints, cumstances, leaving the' State with only post-publication ^ :h`'` however, simply prohibit further exercise of the right after sanctions to punish abuse of free speech rights." According :$, ' to the court, this absolute approach comports with our , x a showing of abuse. Because an individual is responsible for : abuse of the right, a post-publication sanction can be recent ruling in Alderwood Assocs. v. Washington Envtl. ;'.,,y Coun. 96 Wn.2d 230, 635 P.2d 108 (1981), that under arti- imposed consistent with Const. art. 1, § 5. de 1, section 5,-free speech is a "preferred right' when bal- ,-, In the civil context, post-publication sanctions poten- anced against other constitutional rights." Coe, at 375. -,41: r' tially could take one of two basic forms: (1) an award of We do not now suggest a retreat from the prior restraint ` '' "` damages in a tort action, or (2) an injunctive order prohib- r,.,��., iting further dissemination of speech_. The latter sanction analysis set forth in Coe. When faced with a classic prior t'•~' ' arguably constitutes a prior restraint to the extent it pro- ,.,,,,„,,,, fel,fl .',7:,::'-,-t 4;., :: ::1,,,,i,,,,,:„.„,„, I ,, ,,. ; 244 ,I BERING v.SHARE June 1986 ;,'«I June 1986 BERING v.SHARE 245 1 106 Wn.2d 212,721 P.2d 918 ' 106 Wn.2d 212,721 P:2d 918il :• .hibits speech.in advance of further publication. Under this ; " �+{` other hand, a young child can be expected to suffer physi- EEE argument, even post-publication injunctions would violate :,:zw: i;3 cal, emotional; and psychological harm by being told that Const: art. 1, § 5 as interpreted by Coe. "your doctor murders babies", just before visiting his doc- If this view were accepted,the only remedy available to a tor. The effect of such statements upon. the child and person allegedly injured by another's speech would be an `g' his relationship with his doctor constitutes the type 'of award of damages in a civil suit for damages. However, as '' r g gabuse for which responsibility can' be imposed consistent we said in Rhinehart v Seattle Times Co., 98 Wn.2d 226, with Const. art. 1, § 5. 237, 654 P.2d 673 (1982), affd, 467 U.S. 20, 81 L. Ed. 2d 17, Second, we believe the State has a compelling interest in ,1984 104 S.-Ct. 2199 (1984), i preventing the above described abuse through the injunc- �; .:[a] tort action should not and does not constitute the tive process. The parents' right to direct the rearing of their sole protection which government affords to the privacy ,:y_`; children clearly is deserving of the State's protection. Out- 1, . interest of individuals. A threatened invasion of those '; I', • side the school setting, the State entrusts the education of a interests may not have all of the characteristics necessary ' child to members of the family unit and persons of their ii to warrant recovery of damages under existent tort ' ,a'^r..- ;; principles and yet be properly a subject of governmental . .' choosing. Here, at least, parents have a right to determine ; ;, sanction. ; ' .: the manner in'which delicate moral issues will be discussed ",". ";.. . with their youngchildren. Where a third person thrusts his Likewise, a tort action cannot constitute the'sole protection :.,:g y'r:. of our young citizens in this case. Accordingly, we construe -'':;. views upon a child against a parent's wishes, in a manner h Const. art. 1, § 5 to permit post-publication injunctive `:-, ''' and under circumstances which threaten harm to the child, r relief to a private individual if that relief serves a compel- the State has 'a compelling interest in intervening, even if l' ling state interest, and is narrowly drawn to serve that intervention limits the third person's right of free speech. interest. . ; The State also has a compelling interest, independent of -Applying ;'; the`.parents' interest, in the exercise of its police power to a' this analysis to the facts of this case, we cont. - -; dude that the permanent injunction does not violate Const. ,, '0., preserve the sanctity of the doctor-patient relationship and it '' art. 1, § 5, except to the extent it bars use of the proscribed .;- k.: the >r. general health of its young citizens. A child who arrives words even when children are notpresent at thepicket site: in his doctor's office upset and fearful of his doctor cannot 11 : First, we believe Share picketers abused their free speech be expected to respond in a manner which maximizes the rights under Const art. 1, § 5 by employing the proscribed 3 doctor's ability to provide needed health care. Where an '? 1 s; adult is concerned, such consequences arguably constitute ':,'words in the presence of young children in a manner calcu- << theprice we payfor free speech. Where a child is con- lated to inflict "verbal shock treatment". Although use Hof - P a such language ar arguably furthers the national debate on r..5 cerned, however, the cost is unacceptable. g Y 1-,= : ., Finally, we believe the trial court's content restriction is abortion when directed at adults, the same cannot be said r n_ when such language is directed at youngchildrens On the3: narrowly drawn to serve the State's interest, except to the ` i •:,., ,,,,..,, :.,p; extent that it bars use of the proscribed language even h 'BRecei t of this'information byyoung ,Ti'a.w. presentpicket1 p children is irrelevant to the extent it is when no children are at the site. None of the , provided to effect Shares goals. A child's understanding of the abortion issue is ''., #;:' not furthered by noneducational epithets of the type proscribed bythe injunction. above defined state interests are served by insulating adults Furthermore,children have very limited access to the political process and cannot :' be expected to further the aims of Share and other antiabortion groups. Finally, ;:',;i. for abortion—related services, and therefore cannot be viewed as requiring any few children of this age can reasonably be expected to visit the Medical Building _` ;+; antiabortion counseling,especially of the type proscribed. 1:1, 246 BERING v.SHARE June 1986 June 1986 BERING v.SHARE• 247 .''f: 106 Wn.2d 212,721 P.2d 918 ' '+• c' 106 Wn.2d 212,721 P.2d 918 s". including Ms Gerl and Ms. Lindley,'were based upon their from hearing the proscribed language. Accordingly, we • ,, g p ' 'remand'the case to the trial court to narrow the injunction :` `-> refusal to obey a content—neutral, geographic restriction. Consistent with this opinion. . Because the place restriction was valid, the contempts trig- . ` gered the statutory fees provision. Further, the court found IV the contemnors had knowingly and intentionally violated CONTEMPT ORDERS AND FEE ASSESSMENTS ', Contemnors in this case argue that the trial court erred : the geographic restriction Such violations are "willful" for r '° by issuing contempt orders for violation of the permanent the purposes o The trial court the Coffin rule. urt has discretion in determining the propri- injunction on the ground the injunction constituted an • ety of costs and fees under RCW 7.20.100. As we said in .unconstitutional prior restraint. The contemnors were not Coffin, "[i]n 'all.actions and proceedings other than those charged with violation of the content restriction, but rather mentioned in this chapter . . . where no provision is made with violation of the place restriction. Because the con- • for the recovery of costs, they may be allowed or not, and tempt.orders only relate to violation of the place restric- ;;, if allowed may be apportioned between the parties, in the tion, which we conclude was valid under both the First discretion of the court." Coffin, at 898 (quoting:. RCW Amendment and Const. art. 1, § 5, we affirm the trial ''. 4.84.190). We conclude the trial court did not abuse that court's findings of contempt. Furthermore, given the ^' discretion. Counsels' supporting affidavits from other.attor- heightened• emotional tension surrounding the abortion neys in Spokane establish that the hours and hourly rates issue, we approve of the trial court's use of civil contempt 'i` were reasonable. sanctions, recognizing the trial court may wish to resort to criminal sanctions in the appropriate case. Given the ;complexity of the issues, the extensive record [11] Appellants also contend the trial court erred by of Ms. Lindley's and Ms. Gerl's defiance to the lawful order ' `" of the trial court, and the reasonable •efforts by counsel to ' _; assessing attorney fees of$7,000 and costs of $1,200 against comply with; the court's request to document noncompli- _ contemnors Grace Gerl and Teresa Lindley. Statutory • ance with its order, the trial court's award of fees in the authority, however, provides that the aggrieved party in a contempt proceeding may receive judgment from the amount of $7,000 and costs in the amount of $1,200 was neither arbitrary nor capricious. Accordingly, we affirm the defendant to satisfy the costs and disbursements incurred _ ':) trial court's award of attorney fees against contemnors Gerl • as a result of the contempt. RCW 7.20.100.9 To recover '': fees,the contempt must be of a lawful order and have been . � and Lindley.: tkc Because Share did not substantially prevail on appeal, I committed willfully. State ex red. Lemon v. Coffin, 52 the request for attorney fees is denied. Wn.2d 894, 898, 327 P.2d 741, 332 P.2d 1096 (1958). ' :• 1 I The contempts adjudicated' against all the parties, -,1t;``;'' DOLLIVER,;C.J., UTTER, BRACHTENBACH, and CALLOW, JJ., ':?`'''i and CUNNINGHAM, J. Pro Tem., concur. 9RCW 7.20.100 provides: f j,... ( . v 1 "If any loss or injury to a party in an action,suit or proceeding prejudicial.to .t -; `' DOLLIVER, C.J. (concurring specially)—I concur with all his rights therein,have been caused by the contempt,the court or judicial.officer, 4.3 i,,', in addition to thepunishment imposed for the contempt maygive judgment '�M1 i{''p p , that ;;,c;;;?: aspects of the majority opinion except that portion discuss- -the party aggrieved recover of the defendant a sum of money sufficient to indem- ?'i;r ing the place restriction in the trial court's injunction. The reify him, and to satisfy his costs and disbursements, which judgment, and the majority has gone farther than necessary to uphold the acceptance of the amount thereof,is a bar to any action,suit or proceeding by the ''::`' aggrieved party for such loss or injury." + injunction by resorting to the States interest in protecting I. • . , ---. . • 248 ' ) BERING v.SHARE June 1986 , June 1986 BERING v.SHARE i 249 , • 106 Wn.2d 212,721 P.2d 918 q 4' 106 Wn.2d 212,721 P.2d 918 ':.'the right of privacy afforded women by the decision of the '. We start with certain indisputable propositions of consti- • Suprenie Court in Roe v. Wade, 410 U.S. 113, 35 L. Ed. 2d ;:a x-t tutional law The first of these is that public places, partic- .. _, 147, 93 S. Ct. 705 (1973). I believe the injunction is sup- ,,,,,, ularly streets and sidewalks, are the normal and natural , , ported simply by.the State'S interest in maintaining access ..-.t:i. locations for our citizens' exercise of their First Amendment ! to and from- a health care-facility. See Cox v. Louisiana, , ' :,, right of free Speech. 379 U.S. 559, 13 L. Ed. 2d 487, 85 S. Ct. 476 (1965); . Wherever 'the title of streets and parks may rest, they Cameron v. Johnson, 390 U.S. 611, 20 L. Ed. 2d 182, 88 S. .. , have immemorially been held in trust for the use of the Ct 1335 (1968); Pickens v. Okolona Mun. Separate Sch. ;i). public and, time out of mind, have been used for pur- . ': ::, pist., 594 F.2d 433 (5th Cir. 1979); Concerned Jewish poses of assembly, communicating thoughts between citi- Youth v. McGuire, 621 F.2d 471 (2d . :Cir. 1980). I would go i ! : zens, and 'discussing public questions. Such use of the streets and public places has, from ancient times, been a no further. i'.i •.4, . ' - part of the privileges, immunities, rights, and liberties of citizens. ; DORE, J. (dissenting)—I would hold that the place and Aft I:6,r 'Ad'':,i;. Hague v: Committee for Indus. Org., 307 U.S. 496, 515, 83 content restrictions in the permanent injunction, ordering f,,, ,A--:', '':"i' , L.7:Ed. 1423, 59 S.' Ct. 954' (1939); see also Lehman v. l, the picketers to refrain from picketing directly in front of Shaker Heights, 418 U.S: 298, 303, 41 L. Ed. 2d 770, 94 S. ';:l ..' the;medical clinic and enjoining oral use of the 'words ,,,,,,, i'e • Ct. 2714, 2717 (1974); Alderwood Assocs. v. Washington murder", "kill" and their derivatives, while young children ,,,,I:o: ., ,.;-.. - . Envtl. Coun.; 96 Wn.2d 230, 635 P.2d 108 (1981). ,, !f: •,: ' are present, violate federal free speech protections. I would , ::1;:;,;. While the State may reasonably regulate the time, place reverse the trial court and dismiss the contempt orders. and manner of the exercise of First Amendment rights as PLACE RESTRICTIONS ,i necessary to protection of other compelling public interests, _ In.my view the majority has engaged in,an unlawful . :,i -'.1 :p. Grayned v. Rockford, 408 U.S. 104, 33 L. Ed. 2d 222, 92 S. F.: abridgment of appellants' exercise of their First Amend- Ct. 2294 (1972); Police Dep't v. Mosley, 408 U.S. 92, 98, 33 4 L. Ed. 2d 212, 92 S. Ct. 2286 (1972); Adderley v. Florida, •ment right to picket and demonstrate in a peaceful and ': orderly manner. The place restrictions contained in the 385 U.S. 39, 17 L. Ed. 2d 149, 87 S. Ct. 242 (1966); Cox v. +1,: Louisiana, 379 U.S. 536, 554-55, 13 L. Ed. 2d.471, 85 S. Ct. injunction go far beyond measures that are justifiable as , ec, , r. reasonably necessary to maintaining access to and from a 453'(1965), ';'time and place" regulations can enormously health care facility or in protecting a woman's privacy right ' ,, •;' hinder the individual's ability to engage in effective advo- „. ,. . cacy. "Access to the 'streets, sidewalks, parks, and other The majority,.:instead of proscribing only activity posing a ' ..;,, serious threat to those desiring access to the health,c,care similar public places . .'''. for the purpose of exercising facility and searching for less restrictive alternatives, has [First Amendment rights] cannot constitutionally be denied chosen the easier course of riding roughshod over the dem- : :-i,,, • broadly. . . !'"' Grayned, at 117 (quoting Amalgamated onstrators' exercise of First Amendment rights in the very . , Food Employees Local 590 v. Logan Vly. Plaza, Inc., 391 U.S. 308, 315, 20 L. Ed. 2d 603, 88 S. Ct. 1601 (1968)). Even place where-they are entitled to the most protection—our ,i ;:,i;: public sidewalks. It is rather ironic and unfortunate that at when.regulation is justified, it must be "narrowly tailored a time when the abortion issue is at the forefront of public • ., to further the State's legitimate interest." Grayned, at 116— debate this court places a severe impediment upon those ; 17; Police Del*, at 98; Cox, at 575-76. Moreover, exercise . '--':: most desirous to have their opinions heard. of First Amendment rights, when logically related to a par- ;',- ::,,:L. • ' 1.:';:q .0 7 ; 1 • ■, .,.. 250 BERING v.SHARE June 1986 : :• June 1986 BERING V.SHARE 251 106 Wn.2d 212,721 P.2d 918 .:G .,,! 106 Wn.2d 212,721 P.2d 918 :' titular forum, is further protected from regulations which t ing anyone entering or leaving the Medical Building; (3) would preclude the use of that place. Brown v. Louisiana, '-.1, interfering with ingress or egress at the building or parking 383 U.S. 131, 15 L. Ed. 2d 637, 86 S. Ct. 719 (1966) (plural- lots to the south and southeast of the premises; (4) tres- ity opinion); Albany Welfare` Rights Org. v. Wyman, 493 passing on the premises; (5) engaging in any unlawful F.2d 1319, 1323-24 (2d Cir.), cert. denied, 419 U.S. 838 ' .'r r activity directed at respondent physicians or their patients; (1974). (6) referring, ..in oral statements while at the picket site, -=' In balancing the individual's right to demonstrate against while young children are present, to physicians or patients, the concern for the protection of others, the competing staff or clients' as "murdering" or "murderers", "killing" or interests must be assessed on an individual basis; blanket "killers", or .to children or babies as being "killed" or bans and absolute prohibitions against picketing in front of ' "murdered" by anyone in the Medical Building. or near a site have been universally condemned where a less :1- ;, The trial court's findings, which purportedly justify these restrictive and more clearly tailored alternative may be for- - restrictions, are that (1)' picketers have positioned them- mulated. As the United States Supreme Court stated in 5�';• selves,on the public sidewalks along Sixth Avenue and at r, • Police Dep't v. Mosley, supra at 100-01: = °•>. the only walkway to the main entrance; (2) picketers have t obstructed the passage of visitors and staff at the Medical • *Predictions about imminent disruption from picketing -R. ;; picketers have caused the physicians and involve judgments appropriately made on an individual- ,;,. . Building; (3) jp P Y ized basis, not by means of broad classifications, espe- ,'- ,;;" patients emotional distress, created a substantial risk of cially those based on subject matter. ` physical and mental harm, and forced "counseling" upon In short, although limited regulation is permitted, it must persons attempting to enter-or leave the premises; (4) pick- be carefully defined and sufficiently circumscribed to mini- eting has been conducted in an aggress• ive, disorderly and mize the opportunities for abuse of discretion, lest this �', coercive manner, and in instances has given rise to a clear • treasured constitutional right of free speech be subjected to u, and present danger to patients; (5) picketing has been con- -- excessive or unnecessary restraints. 'iy ducted in a manner incompatible with the character and :The proper discharge of this responsibility is difficult. function of the Medical Building; and (6) picketers have ;: The court's task would be easier if it had broad discretion ', �%. repeatedly referred to physicians practicing in the Medical to squelch free speech and assembly without the necessity ..,'',1 4s., Building as killers or murderers in the presence of young of tailoring any restraints to what is absolutely necessary in 3r children. j each .individual case. Unfortunately, such discretion has t'.'. t': Although these findings are supported by the record, the '.E vs . been exercised in the present instance. The result, unsur- ' .. record.also clearly demonstrates that such incidents.have prisingly, is an excessive restraint. The majority has placed l.,r: s, been isolated 'and infrequent in occurrence. Restrictions its concern for protection of one constitutional right above less onerous than complete removal of the picketers from another, and paid scant heed to basic time-honored princi- „:ti•f the 'public sidewalk fronting the health care facility are pies of free speech and expression. `-` '''' available to protect the State's interest of assuring access to r The resultinginjunction, as approved bythe majority, 'I '_: the facility. ` I PP , ;.::. prohibits picketers from (1) picketing, demonstrating, or ,,=F ;; In Parkmed Co. v. Pro-Life Counselling, Inc., 110 Misc. "counseling" at the Sixth Avenue Medical Building, except .yf': 2d 369, 442 N.Y.S.2d 396 (1981), a New York trial court along the public sidewalk north of the bus stop on Stevens :'2 :. enjoined antiabortion picketers "from demonstrating, pick- Avenue; (2) threatening, assaulting, intimidating or coerc- eting and in any way interfering . . . on the . . . plaza area 4(t,: tit I e : 252 . ; BERING v.SHARE June 1986 ',,'# - June 1986 BERING v.SHARE 253 106 Wn.2d 212,721 P.2d 918 j:.. 106 Wn.2d 212,721 P.2d 918 and its steps". On appeal, the New York Supreme Court, --_"}l" `_ si mply because it may embarrass others or coerce them into Appellate Division, struck down this portion of the injunc- `: action. NAACP v. Claiborne Hardware Co., 458 U.S. 886, tion on the ground that it "was overly broad and unneces- 910; 73 L. Ed.1 2d 1215, 102 S. Ct. 3409 (1982); Organization sarily restricted peaceful picketing and demonstrating . . .". for a Better Austin v. Keefe, 402 U.S. 415, 419, 29 L. Ed. Parkmed Co. v. Pro-Life Counselling, Inc., 91 A.D.2d 551, . x 2d 1, 91 S. Ct. 1575 (1971). According to the Supreme 552, 457 N.Y.S.2d 27, 29 (1982). Likewise the injunction at Court, "[t]here is a 'profound national commitment' to the issue.is broader than necessary, because it prohibits peace- principle that! 'debate on public issues should be uninhib- ful, controlled picketing that does not impede ingress or ited, robust, and wide-open.'" Claiborne, at 913 (quoting egress. The majority in effect concedes that the restrictions New York Times Co. v. Sullivan, 376 U.S. 254, 270, 11 L. are overly broad in regard to effectuating access to the Ed. 2d 686, 84 S. Ct. 710, 95 A.L.R.2d 1412 (1964)). In the medical facility. words of Justice Rutledge, "'Free trade in ideas' means free ;: , '•With respect to the State's interest in maintaining • trade in the opportunity to persuade to action, not merely :ingress and egress, the injunction arguably could be nar- <;' to describe facts." Thomas v. Collins, 323 U.S. 516, 537, 89 rowed without compromising that interest. The injunc- -' ', p g J L. Ed. 430, 65:S. Ct. 315 (1945). ' tion could (1) limit the number of picketers, (2) require 'them to remain a certain distance from the walkway :. The majority seemingly acknowledges the overzealous- : , 'leading to the entrance, (3) require them to picket in ;, <• . ness of its concern for a woman's privacy interest when it single file, or (4) all of the above. By narrowing the ;r, : • states that I s'.injunction, the State could serve its significant interest in •, ;' " g it is difficult to ascertain what constitutes. hazassment : maintaining .convenient access to medical care without in the apprehensive mind of a woman coming face-to- - ,unduly limiting the picketers' expressive activities. face,.with the.picketers. By restraining picketing to Ste- Majority opinion, at 231. yens Avenue, the court can avoid conjecture on this • '; i;The majority nonetheless condones this excessive point, knowing that the woman's right of privacy is pro- .restraint as necessary to mitigate the harassing effect of tected to the extent_permissible under the First Amend- ,:, I ',- antiabortion picketers. In so doing, the majority makes a Majority opinion, at 231-32. monumental error in its constitutional analysis. The major- r° ';t The:ultimate strength of our constitutional guaranties ity perceives that such picketing invades a woman's privacy j I rights in effectuating the abortion decision. The privacy 5 lies in their being unhesitatingly applied in time of contro- Con- interest espoused.in Roe v. Wade, 410 U.S. 113, 35 L. Ed. i versy and tranquility alike. "If the provisions of the Con- 2d 147, 93 S. Ct. 705 (1973), however, deals with a woman's , stitution be not upheld when they pinch-as well as when .r`' they comfort,;they may as well be abandoned." Home Bldg. a right to make a decision concerning abortion without gov- .'€: ernmental intrusion. See also Akron v. Akron Ctr. for ' ',.: & Loan Ass'n�v: Blaisdell, 290 U.S. 398, 483, 78 L. Ed. 413, Reproductive Health, Inc., 462 U.S. 416, 76 L. Ed. 2d 687, , . 54 S. Ct. 231; 256, 88 A.L.R. 1481 (1934) (Sutherland, J., i .1 dissenting). The majority here has affirmed an overly broad ? I 103 S. Ct. 2481 (1983). This does not mean that a woman is injunction which abridges the picketers' First.Amendment entitled to make a decision about abortion in a vacuum, M free from public comment including the views expressed by right of free speech. t` For these reasons I would remand this case to the trial ` picketers. This privacy interest does not extend to isolate a ;:- court with directions to narrow the injunction by eliminat- woman from public debate by silencing others. Moreover, speech does not lose its ing the place restrictions which prohibit picketers from p protected character 1 I ''t�0.. Kid : .4 254'. BERING v.SHARE June 1986 June 1986 BERING v.SHARE 255 106 Wn.2d 212,721 P.2d 918 106 Wn.2d 212,721 P.2d 918 '{ `picketing, demonstrating, or counseling on the sidewalk i. • security. See Near v. Minnesota ex rel. Olson, 283 U.S. 697, fronting the Medical Building. The remaining restrictions 716, 75 L. Ed 1357,'51 S. Ct. 625,(1931). The speech in-the injunction are sufficient to assure adequate access to restrained by the majority here does not fall within any of the facility. . ; these narrow categories. Because I would hold that the place restrictions are The only possible unprotected category under which the invalid, I would also reverse the contempt orders and fee -restrained words-in these actions might fall is the category awards and assessments. These penalties were levied of words identified in Chaplinsky v. New Hampshire, 315 against picketers who violated the place restrictions by ,_% ,- 'U.S. 568, 572, 86 L. Ed. 1031, 62 S. Ct. 766 (1942) as having • picketing along the sidewalk fronting the medical clinic. "no essential part of any exposition of ideas, . .. ." and There was no evidence that these picketers violated any ' _ : . whose "very utterance inflict injury or tend to incite an other restrictions in the injunction relating to interfering immediate breach of the peace." with ingress or egress to the clinic. • Contemporary applications of this doctrine prove that it s; = ''} is a very:narrow exception to the rule that prior restraints CONTENT RESTRICTIONS 1 It,is also my view that enjoining oral use of the words ;: are: presumptively unconstitutional.' In Tinker v. Des "murder", "kill" and their derivatives in the presence of ,• Moines Indep. Comm'ty Sch. Dist., 393 U.S. 503, 508, 21 L. children under an identified age violates First.Amendment ,`C. . Ed.:2d 731, 89 S. Ct. 733 (1969), the Court, overturning a rights of free speech. Because the injunction restricts the restriction on wearing of armbands in school as a political content of speech in advance of actual publication or protest, empha.§ized that "undifferentiated fear or' appre broadcast, it constitutes a prior restraint. The United hension of.disturbance is not enough to overcome the right States Supreme Court held in Keefe, 402 U.S. at 419 that ';!; to freedom of expression." Restraint of speech may not be " constitutionally justified from a "mere desire to avoid the [a]ny prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional valid- !! ` discomfort.and; unpleasantness that always accompany an ity," Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 556-59, . ! unpopular viewpoint." Tinker, at 509. See also NAACP v. 49 L. Ed. 2d 683, 96 S. Ct. 2791 (1976). The primary reason j Claiborne Hardware Co., 458 U.S. 886, 909-10, 73 L. Ed. 2d for this heavypresumption of invaliditywas articulated by1215, 102 S. Ct! 3409 (1982); Cohen v. California, 403 U.S. p p ';' .. 15, 29 L. Ed. 2d 284, 91 S. Ct. 1780 (1971). the.Court in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 559, 43 L. Ed. 2d 448, 95 S. Ct. 1239 (1975): _,E,f•. The evidence fails to demonstrate any incitement to vio- [A] free society prefers to punish the few who abuse • , lence• or other i significant harm to the listeners. Signifi- j ` rights of speech after they break the law than to throttle '"<. ±1'. cantly, the words proscribed-play an important role in the T - them and all others beforehand. It is always difficult to "exposition of ideas" in the abortion debate. The combina- know in advance what an individual will say, and the line tion of the absence of significant harm and.the importance between legitimate and illegitimate speech is often so of the restricted words to the abortion debate dictates that finely drawn that the risks of freewheeling censorship are T,. the prior restraint cannot :be constitutionally justified. `. formidable. The only basis upon which a prior restraint can be �' i While the majority finds that the doctor—patient relation- ship may-be harmed by the use of such words, and that upheld is if the communication restrained is constitution- i. they may have!some "physical and psychological" effect on ally unprotected. speech:such as obscenity, incitement to - i young children, none of the evidence demonstrates an. acts of violence, or speech that directly threatens military incitement to violence or'a harm that was any greater than • 1 256: BERING v.SHARE June 1986 ='_,, June 1986 BERING v.SHARE • 257 106 Wn.2d 212,721 P.2d 918 106 Wn.2d 212,721 P.2d 918 • 'the.kind of anger, agitation, embarrassment, and emotional of presumptive unconstitutionality for such restraints. turmoil that is the natural product of debate and the con- i ' flict of• ideas deemed permissible in the cases discussed CONCLUSION . I would hold ;that the place and content restrictions in abFurther, the majority's command 'that the trial court the permanent injunction are :violative of picketers' First I;" provide guidelines for ascertaining when a child of suscep- Amendment rights of free speech. The place restriction is tible age is present is an impossible task. I can conceive of overly broad and unnecessarily prohibits peaceful picketing no reasonable means of determining on casual meeting of a and demonstrating on the' publicsidewalk fronting the child on a sidewalk whether the child is 11 or 12 years of . medical clinic. 'The content. restriction is an unjustified prior restraint which Would prohibit use of words which are age:;A prior restraint cannot be justified on such evidence. an inevitable pat of debate concerning abortion. ' ',*The words "murder", "kill", and their derivatives play an :;--' •essential role in the debate concerning abortion. To those opposed to abortion, the logical conclusion of that moral ANDERSEN, J. (dissenting in part)—I disagree with the position is that abortions result in babies being killed or _`•• majority's decision to uphold.the place restriction in.the trial courts permanent injunction because it seems obvious murdered. If the court were to deprive picketers of the to me that it is an overbroad restraint of citizens' constitu- words which most clearly embody the moral position of •tional rights to publicly express their views. ::`. those picketers, it would eviscerate. completely the debate At issue in this case are the competing rights of those concerning abortion. Just as abortion proponents must be people having opposing views on abortion. On the one side able to articulate their belief that abortion is constitution- are women who;have the legal and constitutional right to ally,justified as an aspect of a woman's right to procreative obtain abortions, and doctors 'who have the right to per- freedom, see Bigelow v. Virginia, 421 U.S. 809, 44 L. Ed. 2d form them, so long as all concerned comply with this state's . 600• , 95 S. Ct. 2222 (1975), so must abortion opponents be abortion laws.10 On the other side are those who oppose : permitted to articulate their belief that abortion should not abortion and who have the legal and constitutional right to -be permitted because it involves the taking of.human life. express their views by peacefully picketing and distributing There is no question that the use of words such as "kill" - leaflets in public forums such as the streets and sidewalks „ .and "murder" caused some agitation and emotional tur- 11 - 1 s' moil.:Such responses are an inevitable part of debate that of our cities. lies:at the very heart of freedom of speech. Those words , On the one hand, the abortion proponents have the right embody and crystallize the position of antiabortion activ- to ignore the opponents signs and leaflets or to consider fists. Dep rived of such words, antiabortion activists wo�lld them, as�they. deem fit. On the other hand, the abortion opponents have the right to peacefully and publicly declare ; be deprived of the right to carry their argument fully to the their opinions on the subject. The law as we have stated it , public. The worth of such words can only be evaluated in with regard to labor picketing is equally applicable in the i `• the.commerce of ideas where they will be judged in relation , I f to opposing arguments and ultimately either accepted or 1°See Roe u. Wade, 410 U.S. 113, 153, 35 L. Ed. 2d 147,93 S. Ct. 705, reh'g �f- !ejected. ' denied,410 U.S.-959,35 L.Ed.2d 694,93 S.Ct. 1409(1973);RCW 9.02.060. f'i •'L,In sum, the restrictions on content in the injunction is an it "See United States u. Grace, 461 U.S.'171, 176, 75 L. Ed. 2d 736, 103 S.Ct. l' :' unconstitutional prior restraint, and the evidence presented 1702(1983). •, ; I - Ft in!<, in•th• is.case did not establish a narrow exception on the rule a' _' is ' j . ' :1 258 _- BERING v.SHARE June 1986 s June 1986 BERING v.SHARE -. 259 106 Wn.2d 212,721 P.2d 918 106 Wn.2d.212,721 P.2d 918 context of abortion picketing: `; (Italics miner The majority concedes that "the First k ,f ';o Amendment sharply curtails the government's ability to :' Peaceful picketing is an exercise of the right of free permissibly restrict expressive conduct" inpublic forums c . speech. Organized labor has the right to communicate its P y , P i views either by word of mouth or by the use of placards. j such as streets and sidewalks. Majority,,at 222. I believe f This is nothing more nor less than a method of persua- that the place restriction contained in the trial court's per- , sion. But when picketing ceases to be used for the pur- , manent'- injunction unconstitutionally abridges the pro- ?i -,,-pose of persuasion just the minute it steps over the line "1 tected right of; citizens to express their views on abortion, from persuasion to coercion—it loses the protection of ;'j; a -,;.the constitutional guaranty of free speech, and a person ;:. which is undeniably.a national issue that has aroused con- ` or persons injured by its acts may apply to a court of §iderable public,debate. . ., ..7 equity for relief. As .the majority also acknowledges, place restrictions on t constitutionally.protected expression are valid onlyif nar- . Swenson v. Seattle Cent. Labor Coun., 27 Wn.2d 193, 206, ;=�I P P 12 1'177 P:2d 873, 170 A.L.R. 1082 (1947), cited in Gazzam v. rowly tailored to serve a significant government interest. Building Seru. Employees Local 262, 29 Wn.2d 488, 498, The significant interests that the majority cites as justifica- • 188 P.2d 97, 11 A.L.R.2d 1330 (1947) and Audubon Homes, tion for the geographical restriction imposed on the picket- Inc. v. Spokane Bldg. & Constr. Trades Coun., 49 Wn.2d ers are (1) facilitating actual ingress into and access from 145, 151, 298 P.2d 1112 (1956), cert. denied, 354 U.S. 942, 1 %'. the Medical Building and (2) reducing the coercive impact L. Ed. 2d 1536, 77 S. Ct. 1392 (1957). H., .of picketing upon patients and staff of the Medical Build- The fact that the sidewalk picketing became "aggressive, ' ` ing. - disorderly, and coercive" (as the trial court described the ' # `' It is interesting to note that the permanent injunction picketers here) does not justify the court in then proceeding ordered by the; trial court does protect both of these inter- to so restrict the right to picket as to render it totally ests and does so independently of the place restriction it meaningless. As the United States Supreme Court held in A also imposes. In addition to restricting picketers to the Hague v. Committee for Indus. Org., 307 U.S. 496, 515-16, r i Stevens Avenue location, the injunction properly prohibits 83 L. Ed. 1423, 59 S. Ct. 954 (1939), the right of citizens to :7 the abortion picketers from "interfering with ingress or ,,4 publicly discuss their views on-important issues is one '- egress at the building or parking lots to the south or south- east of the premises", from "threatening, assaulting, intim- which our society holds dear: ;. '' =7, .'?,' idatingor coercin anyone enteringor leavingthe Medical ,' ' „Wherever the title of streets and parks may rest, they �s " g Y have immemorially been held in trust for the use of the Building", and from "engaging in any unlawful activity directed at respondent—physicians or their atients." Thus, public and . . . have been used for purposes of assembly, � P communicating thoughts between citizens, and discussing ',,I anyone who violates one of these three provisions of the public questions. Such use of the streets and public . _ injunction wilt be liable for contempt regardless of where ' places has, from ancient times, been a part of the privi- around the Medical Building he or she is picketing. That is leges, immunities, rights, and liberties of citizens. The r both appropriate and legal. privilege of a citizen of the United States to use the streets and parks for communication of views on national --'s The geographical restriction in the injunction, therefore, questions may be regulated in the interest of all; it is not is surplusage that unnecessarily restrains constitutionally absolute, but relative, and must be exercised in subordi- _,,,' nation to the general comfort and convenience, and in ;a 12see Grace, at 177; Perry Educ. Assn v. Perry Local Educators' Assn, 460 consonance with peace and good order; but it must not, i, U.S.37,45,74 L.Ed.2d 794,103 S.Ct.948(1983). r in the guise of regulation, be abridged or denied. ': .;' 260 BERING v.SHARE June 1986 June 1986 PHYSICIANS v,TACOMA STANDS UP FOR LI]'_ 261 {° 106 Wn,2d 212,721 P,2d 918 .y 106 Wn,2d 261,721 P.2d 946 :;; protected expression. If a place restriction on the antiabor- ,:�: [No. 61697-9. En Banc. June 19, 1986.] :tion picketers is needed (in the opinion of the trial court on _' 1 I FEDERAL WAY FAMILY PHYSICIANS INC., ET AL, remand), given the other restrictions contained in the Respondents, V. TACOMA STANDS UP injunction, it should be. narrowed from the unduly broad place restraint currently in effect. I agree with the majority FOR• LIFE, ET AL, Petitioners. at page 231 that the place restriction could be narrowed by ''• [1], Injunction; —. Temporary Injunction Elements. A trial ;' ' court should not exercise its discretion to grant a temporary injunc- • (1) limiting the 'numbers of picketers, (2) requiring them to ;;n . - , remain a certain distance away from the walkway leading to tion` under RCW 7.40.020 unless the complainant" has a well grounded -fear of immediate invasion of a' clear legal or equitable the entrance, (3) requiring them to picket in single file, or $ . `„ right and the conduct to be enjoined causes actual and substantial (4) all of the above..I depart from the majority because I ;;;z injury. 1 would hold that the remand to the trial court should :«a'' , r r [2] Injunction — Temporary Injunction - Existence of Clear include instructions to that court to narrow the injunction's : Right — Determination — Express Statement — Neces- lace restrictionplaced upon the antiabortion picketers. In := city. A trial court determines whether a complainant seeking a P P P ` temporary injunction has a clear legal or equitable right by evaluat- i . my view, when the trial court limited picketing to a location y' s. :.,Fi ing'the likelihood that he ultimately will prevail on the merits. The around the corner and down the block from the entrance to F.- the building, it left no alternative channel of communica- absence of a trial court statement that the complainant is likely to j . ; prevail on the merits is not, however, fatal to a temporary injunc- tion open to the picketers and, as a consequence, the place ilia b. .. • tion. • restriction was overly broad and unnecessarily restrictive!' ,`E,, 3 Appeal and Error — Findings of Fact — Review — Docu- The injunction could accord the sameprotections to the `' s::-'• [ ] g J mentary Evidence.Findings of fact derived solely from affidavits patrons of the clinic and their doctors without resorting to °.flu # '' are given less deference on appeal than findings of fact derived from that. - '_ 1.''" nondocumentary sources. ' =r For the foregoing reasons, I respectfully dissent from :�4 r_f [4] Injunction Constitutional Law — Freedom of Speech — only that part of the majority's'opinion which upholds the V.`, Temporary Injunction. A temporary injunction affecting the :, , ' constitutional right of free speech requires a higher level of eviden- • t place restrictions in the trial court's injunction, and from the contempt convictions based thereon. ''' :',r; , fiery support.. ;', s ., ,+_ <<'= [5] .Injunction= Constitutional Law — Freedom of Speech — ; GOODLOE, J. (dissenting)—I am in complete agreement '' ,>':_•=' • : Overbreadth.An injunction is overly broad if the scope of its pro- with•Justice Andersen s dissent. I write separately only to ?':,:..._ ' hibition exceeds.the permissible subject of control and encompasses note that if, on remand, a narrower place restriction is " constitution protected speech. :;zr imposed that such restriction should state specifically .; , ` DURHAM,J.,did not participate in the disposition of this case.. where the picketers may not be. Any injunction which ': ';. ` states only where the picketers shall be is necessarily too -.' Nature of Action: A medical clinic sought damages = 1 : from an antiabortion organization and to prevent its mem- broad and logically precludes them from being anyplace ;:_ hers from picketing and attempting to influence people in else. ,' ,:;:: the area surrounding the clinic, using the words "kill" and 13P rn arked Co. u. Pro-Life Counselling, Inc., 91 A.D.2d 551, 552, 457 _ ""` murder in connection with clinic employees and patients, N.Y.S.2d 27,29(1982). :. :V:;;. • and obstructing access to the building. Al . s:_ w .; ; -58 STATE v.REGAN Feb.1982 Feb.1982 CURTISv.SEATTLE , 59 ,97 Wn.2d 47,640 P.2d 725 " I' i 97 Wn.2d b9,639 P.2d 1370 , findinga work obscene. Smith, at 301. *i Ct:`1676 (1964) (Stewart, J., concurring),'.is apt here. I would submit that the task of regulating in this area : . , ; i will become less difficult if each branch in our system.of BRACHTENBACH, C.J., and DORE, J., concur with DIMMICK, , :. justice maintains its appropriate role. Our appropriate role J: j r. s'r in this area is to interpret the laws, not to legislate them. '' See Jepson v. Department of Labor & Indus., 89 Wn.2d 394, 405, 573 P.2d 10, 15 (1977). 1 • :, _- : Millers 3—prong test for obscenity regulation was .' , '"`•�`� '' � �[No. 46950-4.� En Banc. ,February ll, 1982.] i t,` intended as a guideline to the states and not as a substitute - i• for comprehensive legislation. Although RCW 9.68.010 is LEILONIi IRENE CURTIS,SET AL, Appellants, V. THE I; constitutional as presently construed, in the future I would 1 CITY OF SEATTLE, Respondent.' ' ';; not construe the statute if such saving construction would • conjecture about the kinds of sex- [1] Statutes_Validity—Wisdom —In General.The fact that a 4, , 'require Us to continue to statute may be bad or unwise does not render it invalid. ','J ual conduct the statute seeks to regulate under the second prong of the Miller test. "State legislation must still define [2].Obscenity,— Sexual Conduct — Regulation — In General. a P g g Conduct involving nude exposure or.explicit sexuality, even if not I , the kinds of conduct that will be regulated by the State." legally obscene,may be subject to regulation. `Smith v. United States, 431 U.S. 291, 302, 52 L: Ed. 2d [3] Constitutional Law — :Obscenity — Sexual Conduct — 14• 'A':- '324, 97 S. Ct. 1756 (1977). The Legislature is the proper Regulation Validity —.Freedom of Speech. Regulation of I, '`-=~ -, bodyto define the intended scope of its obscenitystatute. . � p nudity and explicit sexual activity does not violate the constitu y j; =; ' tional guaranty of free speech so long as reasonable allowance is s`.n ' DOLLIVER J. concurs with UTTER, J. g '.; '; , i made for the expression of ideas under specified conditions.' 1J•A r> . [4]. Appeal and Error— Review — Issues Not Raised in Trial l DIMMICK, J. (dissenting)—I agree that this court's ' '" .•"Court—In General.`A`contention not made in the trial court will . authoritative construction in State v. J—R Distribs., Inc., 82 not be considered on appeal.::` 1::,. Wn.2d 584, 512 P.2d 1049 (1973) may have been constitu- 1 ',1. . .•.t::. [5]'Criminal,Law'— Statutes — Overbreadth != Saving Con- •overbroad. I cannot agree, however, that petition- structiori• . A court May adopt a limitingconstruction to validate a Y P 11:V' ers' convictions must be vacated and the cause remanded •; statute which would be overbroad if applied literally. for a new trial. It is clear upon viewingthe films that a '` " P '>, DOLLIVER�J.�concurs in the result only; STAFFORD and DIMMICK,JJ., and i{ .• juror would not be misled bythe omission of the words UTTER J., dissents by ''ri t BRACHTENBACH, C.J., concur by separate opinions; "patently offensive" in one section of the instruction where separate opinion; PEARSON, J., did not participate in the disposition of TI they did appear in another part of that same in'truction. this case. :, ,, This technicality should not constitute reversible error in 'ID 1 Nature of Action: The operators of an establishment , t I the instant case. The oft-quoted statement of Justice Ste- I:. '•wart in defining pornography that "I know it when I see it;" wherein patrons could pay' money to view sexual activity rl.'• Jacobellis u. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 84 S. from private: booths sought review of their convictions in P q municipal court under local lewd conduct and body studio "? M it .� i'` •'N SA. .. - Ii ; n ' G. ' :,i;?,:;"'' 60 CURTIS v:SEATTLE Feb. 1982 Feb:1982 CURTIS v.SEATTLE. 61 I",.fir 97 Wn.2d 59,639 P.2d 1370 97 Wn.2d 59,639 P.2d 1370 1 16 . Nil. II'; tN ; ordinances. The defendants were notpermitted topresent4' two or more'adult nude people engage in a variety of sex , : G ,,, testimony that the sexual activity was communicative and acts ranging from' gentle',touching to sexual intercourse: not obscene. I' .`-z, Throughout this activity, a sound system "conveys by l' {, Superior Court The Superior Court for King County, music and voice the idea that open sexuality. is appropri- L: i�„ ate"::Ad acenti.to the booths is another room..with Church G, .< �";�':-�� NO: 80-2-01446-3, James A. Noe, J., on March 19, 1980, � ± '� philosophy displayed:'on the walls. - VA ry entered a judgment upholding the convictions. All appellants but J. H. Gearon were charged by respon- --'KV:;.,_: Supreme Court Holding that evidence regarding the dent City of Seattle (City) with lewd conduct under Seattle ; : communicative nature of the sexual conduct was properly t•:ai: : :, Criminal Code; 12A.10.070 (lewd conduct•ordinance) and [1; .7,; excluded and that the body studio ordinance was valid, the 1 1 T: court affirms firms the judgment. with.being employed on the premises of"a body studio in i.`f= violation of Seattle Criminal Code 12A.10.0802 (body,studio i Gilbert H. Levy and Doherty & Levy (Arthur Wells, of y i' ,aY ',`counsel), for appellants. 1Section 12A.10.070 provides: i�' <' • "A.As used in this section a'lewd act'is: +„ i `Douglas N. Jewett, City Attorney, and Sean Sheehan, "L An exposure of one's genitals or female breasts;or ; ,° Assistant, for respondent. "2.The touching, caressing or fondling of the genitals or female breasts; j or : l fix; .. ." 3.Sexual intercourse'as defined in Section 12A.06.070 A7;or F 1 >;,;,,y DORE, J.- -This case examines the constitutionality of the + ,•, :,,�y,"4:.Masturbation;or' ' . r..'t y ..;,. City of Seattle's lewd conduct ordinance and that city's " . . •,"s...urination or defecation in a place other than a-washroom or toilet 11 t'_ i.;.i:'-:.rvroom. r-,- body studio ordinance. We affirm appellants' convictions • <,-.:- " , ;;.:,�.;,, B.A person is guilty of lewd conduct if he intentionally performs any lewd I'� under these statutes and, in so doing, find no constitutional act in a public place or at a place and under circumstances where such act could `I infirmities. be observed by any member,of the public. i Appellants are members and employees of the Venusian . ' "i.'Public place'has the meaning defined in Section 12A:10.010 A3. 'i Church (Church). The philosophy of the Church centers on i "C.The owner, manager or operator of premises open to the public wherein t alcoholic beverages ire sold,served or consumed is guilty of permitting lewd con- i;' . an individual's acceptance Of his or her own sexuality, duct if he intentionally permits or causes any lewd act on the premises. thereby discarding the repressions upon sex imposed by our ' • :"D.This section'shall not be applied to artistic or dramatic performances in a . contemporary society. The Church conducts retreats and theater or a museum." li ' seminars and operates the Temple of Venus (Temple) 2 Section 12A.10.080 provides: .' located at 1414 First Avenue in Seattle. The walls of the ^A.As used in this section,a'body studio' is any premises,other than a mas- 111 _ , Temple foyer are covered with quotations and explanations sage parlor, reducing salon, or public-bathhouse as defined in the License Code li'I; of the philosophy of the Church. Past the foyer is another (Ordinance 48022) and licensed as such, upon which is furnished for a fee or ul chargé or other Like:consideration the opportunity to paint,massage,feel,'handle, room where slides, movies, and an accompanying narration . 1,, or touch the unclothed body or an unclothed portion of the body of another per11 - explain this. philosophy and Church activities. Beyond is son,or to be so painted,massaged,felt,handled or touched by another person,or 1i another room with booths for viewing films or slides. A fur- to observe, view or photograph any such activity, and shall include any such 1 premises which is advertised or represented in any manner whatsoever as a'body ;i - ther room contains a series of booths arranged on two sides painting studio,' 'model studio,' 'sensitivity awareness studio'or any other expres- of.a bed. Once admitted to a booth, a patron deposits a ; sion or characterization which conveys the same or similar meaning and which 111 Susan B. Anthony dollar into a coin box which raises a leads to the reasonable belief that there will be furnished on such premises for a u!: ill fee or charge or'other like consideration the opportunity to paint, massage, feel, . shade for "3 minutes revealing the performance area where 'c • handle, or touch the unclothed body or an unclothed portion of the body of 1 ice f+:_ _:i- f` S 1%1, A x1- t. ,',"" Feb.1982: ` CURTIS V:SEATTLE 63 ,,i ',,: CURTIS v.SEATTLE Feb. 1982 i 62 97 Wn.2d.59,639 P.2d 1370 I `;. ?',: ' 97 Wn.2d b9,639 P.2d 1370 '''`- m tion: Such an,argument:could only tend to. show that the - = ' :.: .ordinance). Gearon was charged with conducting a business ;, .::�; , : lewd conduct ordinance. is'a bad or an unwise law. Such �: ' on the premises of a body studio. Suffice it to say, without questions are inappropriate for a court to resolve. Seattle v. g further elaboration, that the activities in view from the 3- �I' ?„ Buchanan, 90'Wn.2d 584, 584 P.2d 918 (1978). , minute-per-dollar booths were activities clearly prohibited I 1 by the lewd conduct ordinance. By its own terms, however, [2] As to the contention that the behavior was commu- 1115, that ordinance does not apply to dramatic or artistic per- nicative, therefore not obscene and not subject to regula- j� ;c : tion, we -refer to' Buchanan where we upheld. the I! �� <, , formances which take place in a theater or museum. Sec- of this ordinance against an attack that it f �:�= '� t_ion 12A.10.070(D). �`` hr chilled First Amendment rights. Even,if we were to assume i� =''`, . The municipal court granted the City's motion in limine, that appellants' behavior, is. not obscene under the tests ;' preventing appellants' witnesses from testifying that the 1' 4,,`,- articulated in Miller'. v. California, 413 U.S. 15, 37 L. Ed. 2d ,, ,fib Y activities engaged in were "communicative". All appellants 419; 93 S. Ct. 2607 (1973) and Roth v. United States, 354 ,, were found guilty of the charges. Gearon was fined $500. . The other seven appellants were given 30-daydeferred U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304.(1957), we held in �I pp l Buchanan that conduct related,to expression may be regu- k.., - suspended sentences. This appeal followed. ,-.,:!1 .%, lated when nude exposure or explicit sexuality is involved. I We recognize that, in Buchanan no assertion had. been iI' i- � LEWD CONDUCT ORDINANCE f WOr • made that expression was involved, as the appellants before ,� • ,-).- rrf_, Di Appellants contend that the United States Constitu- us,. , argue: They distinguish Buchanan on this basis. ' .��-.tion gives them the right to prove that their activity was However, in Buchanan an overbreadth challenge was made ,4 communicative, thereby not obscene, and protected by the R and rejected liy this court. ;I .. ,:,First Amendment. The grant of the motion in limine was, [3] A statute may not be drafted with so broad a sweep ,ii';,i` r "ar ue appellants, reversible error. When freedoms of speech t„4� g ppas to include in its prohibitions activities which are pro- t and religion are affected, as appellants claim here, the State tected by the' First Amendment. United States v. Robel, :114x R. ,may,:.regulate only upon a showing of a compelling State 389 U.S..258, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967). If so 1 Ili,kg, ''r h},,i-nterest. United States v. O'Brien, 391 U.S. 367, 20 L. Ed. drawn, a statute will be void even if the conduct actually 1"c.;, ,. r.•y _ty,",t ,: - i 43 six .-.- i2dr,672� 88 S. Ct. 1673 (1968). They argue that their evi- regulated was not constitutionally protected. Kunz v. New ., i:Bence would have tended to negate the State's interest York, 340 U.S. 290, 95 L. Ed. 280, 71 S. Ct. 312 (1951). In 'iP^F., .r{; .,' ;'.3;{.;,:9. '.A: 'lei 's ::.ecause,,it'would have established that viewing their activi- Buchanan, when faced with this. challenge, we balanced the li w:; ,to'`'`` oiled by the lewd conduct ordinance (1) has no City's legitimate interest in maintaining public order and " ,,Y ' =ct,, (2),;�would;.not lead to violence;;or other decency against the constitutional protection afforded to ;i s ,. d;(3):'is.actually beneficial. The assertion, i . some nudity as a means of expression. We held that the ��1_ ` N; ;the activities were not harmful but were lewd conduct ordinance did not violate the constitution , ;'ers, has;no bearing on our determina- because it affirmatively provided for artistic or dramatic ili ii9? �.• .`fir. yn i;�:.._ t 1 ,:. .. performanceslas being exempt from its reach. 1�o •T�� :saged,felt,handled or touched by another ` II`:'- p Since the ordinance here in question is manifestly , "� I9�. ,; .. 6 h:any','such activity..; .,. ji-;: ' ''' _f�, • . `"ate,_conduct,`or_maintain a bodystu- directed at:conduct and does not purport to regulate the �,, (� 61Wau dated thereto:on the premises of a expression of ideas, and indeed expressly makes.,allow- I', refs d,ao „ # premises omitted.) ance for the prohibited conduct in a context of such ill S 7 o- " f r � } 2y '$ - S„s;ica '`"•W` i _ - ,6 il` :.64 CURTIS v.SEATTLE Feb.1982 Feb.1982 CURTIS v.SEATTLE 65 i',` 1`r 97 Wn.2d 59,639 P.2d 1370 97 Wn.2d b9,639 P.2d 1370 l,•� :. ~'; PI expression, and in the absence of any showing that II, anyperson has a right to present apublic theatricalpro- j!"'':' ;�, '' g BODY STUDIO ORDINANCE ,: :. ,u, `=,,- duction involving breast exposure outside a theatre or I. P -museum, we must reject the appellants' contentions that Appellants assert that the body studio ordinance pre- this ordinance prohibits constitutionally protected vents all nude touching and is, therefore, overbroad. When ! si, "tu speech these activities are performed as part of a legitimate �3.;,7y, , expression of ideas in a'.theater, they cannot be regulated. ti 4,, �` ,Buchanan, at 603. 1 [4] Appellants also contend that they should have been The body studio ordinance purports to do so, chilling First ;,, allowed to present their evidence that the activities were Amendment expression and rendering the ordinance void., ., "communicative" because, if so proven, the activities would - The City contends that the ordinance is only intended to i; ,,r have constituted an "artistic or dramatic" performance and apply to those:places where the principal activity provided, Il would have been exempt from the lewd conduct ordinance. in exchange for taking the fee, is the touching, handling, I[i This argument was not raised below and we shall not con- etc. Where the prohibited activity is only incidental to j,% sider it at this time. We note, however, that the pivotal other protected forms of expression, the ordinance does not apply. Legitimate artistic or dramatic performances are ,1 �. question as to the applicability of the exemption is whether , ' the performance takes place in a theater. If the place_ of thereby excluded from the reach of the statute. a:= ,' [6] The language of the body studio ordinance does not I performance is not a theater, the content of the behavior is . irrelevant. The record indicates that the municipal court ,limit its reach. Appellants, are correct:that, if literally had determined as a fact that the Temple was not a thea- applied, legitimate means of,expression would be controlled i. i a - 'ter. The court found that the performance area was a in violation of the First Amendment. However, a limiting a" ' "bed". Appellants point to our definition of theater in >,,> . construction by the courts will save a statute from an over- breadth challenge. Erznoznik v. Jacksonville, 422-U.S. 205, '`,. Buchanan at page 596—literally meaning "a place for see- � „ 45 L. Ed. MI 125, 95 S. Ct. 2268 (1975). The municipal l`.;.'R +c. ing —and argue that the Temple comes within that broad language. However, we limited that definition by specifying court'adopted;such a 'saving construction, as reflected in its is ' types of theaters as memorandum;opinion.' 'i `,, opera houses, motion picture theatres, drive— The essence of the offense is the business of touching/ I playhouses, p '' viewing for'a fee. .in theatres, ballet theatres, and puppet theatres, and p • n 'even open air theatres. 4 Does this ordinance sweep within its prohibitions pro- !r . tested first amendment activity'? As argued by defend- is Buchanan, at 596. Furthermore, we said that a "theatre" ants, the ordinance, literally read, could be said to apply f."-' was limited "to buildings which are customarily used for i', 'to a'dramatic production where two or more actors held :-artistic performances". Buchanan, at 600. The lowdr courts hands before a paying audience. This is not a reasonable !I • - ,: finding that the Temple is not a theater is supported byapplication; of its terms. No reasonable person reading., terms "body painting studio", "model studio", "sen- +IM , ' substantial evidence. In light of the record before us and sitivity awareness studio", and "paint, massage, feel, ii� 11 our holding in Buchanan, we hold it was not error for the handle, or touch the unclothed body" could conclude that ili trial court to exclude evidence which may have shown that it related to a dramatic production. Many plays and bal- +'.,- :the defendants' conduct was "communicative". let performances involve much touching but the drama m and the dance are central to the performance. The = f ' touching is incidental. "The statute must be given a ma-, sonable construction to avoid absurd consequences", , • 66 CURTIS v SEATTLE Feb1982 Feb 1982 CURTIS v.SEATTLE ,--- - 67 •. -.:- ' . ..T,I.)`., , • ` 97 Wn.2d 59,.639 P.2d 1370 97 Wn.2d 59,639 P.2d 1370 , , I• State v. Cann, 92 Wn.2d 193 (1979). tion if certain Conditions are met , i•.-. ,,,, ....., 1 •,,p, ,;s11; , • 4 • -' ' The\requisite conditions are set forth in United States v. -1-••!, ' :,, . The court finds that 12A.12.160 by its own terms does ' O'Brien,! suprai,at 377. First the governmental regulation • . pt. .not apply to any protected expression. ' must fall within the constitutional power of the govern- [J,‘ We adopt this limiting construction and, therefore, find ment. Second, it must further an important or substantial . ÷ no constitutionally overbroad language such that protected governmental interest Third, the governmental interest ps LA conduct or speech is regulated. must be unrelated to the suppression of:free expression. 1 ' •,.,.,. All convictions are affirmed. Fourth,,the restriction must be no greater than is essential Tit' T T to.the furtherance of that interest.The instant.ordinance ; 1•.,,.,0J ROSELLINI, WILLIAMS, and DIMMICK, deJ., COMM'. '''.1.-i:,'DOLLIVER, J., concurs in the result. meets these tests.,, , . • If 1 1 l'.'14 ` Cities.in our state have the power to regulate activity 114 ' Such such as' public nudity. ', . regulations ;are justified by STAFFORD, J. (concurring)—I concur with the result of the „ majority; however, I feel it is necessary to discuss more considerations of ., ,,,-: • ,public,morals and general welfare,"both ) '-,r,t• •/!‘t fully why Seattle's lewd conduct ordinance does not uncon- incident to the general ,"police power" of municipalities. See Seattle v. 'Hill, 72 Wn.2d 786, 797, 435 P.2c1 692 (1967); stitutionally infringe on First Amendment rights. i Tacoma v. Fok, 158 Wash. 325, 290 P. 1010 (1930); Const. , 1 ,-- .The United States Supreme Court has recognized the ,' i • art 11;' § 11. "[R]egulation‘ of indecent, exposure and of I ::::i'• ' - right of cities and states to regulate offensive conduct in 1 conduct inducing to breaches of the peace'are traditional ' -1::'public places even though it may involve expressive activity ,..,k,.. and proper subjects of the police power . . ." Kew v. i =Pr- or speech. See Seattle v. Buchanan, 90 Wn.2d 584, 599- `,..:.- 603, 584 P.2d 918 (1978), for a detailed discussion. As Jus- Senter, 416 F.1 Supp. 1101, 1105 (N.D. Tex. 1976). By pro- • moting public morals, the regulations also further an tice Douglas stated in Roth v. United States, 354 U.S. 476, int 1 substantial public interest. Crownover v. k • 1 . • ft 512-13, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 (1957): "No one mporta or would suggest that the First Amendment permits nudity in Musick, 9 Cal. 3d 405, 427, 509 P.2d 497, 107 Cal. Rptr. 681 , public places, adultery, and other phases of sexual miscon- (1973); Kew L. Senter, supra. See generally Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L. Ed. 2d 446, 93 S. Ct. •F •.0,,, duct. . . . Government should be concerned with antisocial , . conduct, not with utterances." See also Erznoznik v. Jack- 26.28 (1973). The courts below determined as much, the 1 municipal court stating that this ordinance concerned a ,,.•. sonville, 422 U.S. 205, 211 n.7, 45 L. Ed. 2d 125, 95 S. Ct. . ,"clear and important governmental interest in the welfare '''',.. • 2268 (1975). It is also clear that .. - and morals of the public and in maintaining peace and .• . • '''.,•-•--,- :;•; when "speech" and "nonspeech" elements are combined. ' good order in the city." • in the same course of conduct, a sufficiently important , , governmental interest in regulating the nonspeech ele- These regulations "reflect legitimate state interests in ment can justify incidental limitations on First Amend- . maintaining comprehensive controls over harmful, consti- . ...,. ..,, •_ ment freedoms. tutionally unprotected conduct." Broadrick v. Oklahoma, . ., : United States v. O'Brien, 391 U.S. 367, 376, 20 L. Ed. 2d • 413 U.S. 601,1615, 37 L. Ed.' 2d 830, 93 S. Ct. 2908 (1973). ,44, ., , .,,2 •. 672, 88 S. Ct. 1673 (1968). Thus, even conceding appellant's The conduct here is constitutionally unprotected; there is rf, ,.. , activity might have been communicative (as indeed we no right to appear nude in public. Rather, the constitution must, .given the motion in limine granted by the trial only requires that some nudity be tolerated as part of some ,••,. , . , court), it is not thereby shielded from governmental regula- • , larger form of expression meriting protection, when the .--' ,•,. . • . ,,,, , • , , ' Ifli•f'.. 68 CURTIS v.SEATTLE Feb. 1982 ' Feb.1982 CURTIS v.SEATTLE 69 i1 li :.,n' 97 Wn.2d 59 639 P.2d 1370 97:Wn.2d 59,639 P.2d 1370 fa' - _� ;_.< t^y¢:.� communication of ideas is involved. State v. Baysinger, _ 428: '-?;r.=: ,"'•:.. ,� :,. ':• �:__•, : '.;:." i i��, ,xl-, • Ind.. , 397 N.E.2d 580 (1979), appeal dismissed sub nom. The;ordinances do not.prohibit speech or expression or _ .!: Clark v. Indiana, 446 U.S. 931, 64 L. Ed. 2d 783, 100 S. Ct. entertainment; they merely direct.that the entertainer .; 2146 (1980).3 Seattle's ordinance makes ample allowance cannot appear with genitals .or breasts exposed. :The 11 ?„�4 for artistic nudity by its exemption of artistic or dramatic ordinances proscribe no more than is necessary to ban I I :• the nudity dity which has been deemed harmful to public 'di 4::-, welfare or morals. . ill .i The third factor in O'Brien is also met. As stated in ,,, <y .,' Crownover v. Musick, 9 Cal. 3d 405, 427, 509 P.2d 497, 512, It`is clear appellants conduct has been constitutionally =': 107 Cal. Rptr. 681 (1973): regulated. i ;!,1 .. : " The regulation is aimed at conduct, not speech; at "sepa- . BRACHTENBACH, C.J., concurs with STAFFORD, J. , I { rately identifiable conduct" (Cohen v. California, supra, .::? , _,,.403 U.S. 15, 18), not at an activity "entirely divorced DIMMICK, J. ;(concurring)—I concur in the result of the ,.; .<A 1, •, from actually or potentially disruptive conduct. . majority::I wish, however, to address the discussions of the I (Tinker v. Des Moines School Dist., supra, 393 U.S. 503, - .,y s.. 505.) majority. (at page 64) and the dissent (at.pages 73-79) III <s'" > See also Kew v. Senter, supra at 1105: "it is difficult to relating•to appellants' contentions that if:they were allowed to present evidence that,their activity was,communicative Ij. ''° FK>.!.:`-, i I III $,•;, ,_; conceive of ideas entitled to First Amendment protection such evidence would have established that their activities >. which can be solely—or even best—expressed by baring the anus or genitals in the circumstances forbidden by theI,I' ;; were exempt as "artistic or dramatic performances in a 1iI „ii'. statutes." theater or a museum." Seattle Criminal Code. 12A.10- ;I � , `?, .070(D) ;t '�r` awl As to the fourth element of O'Brien if the ordinance does ;' 4' `'``'• 5''_ " In the:Seattle•Municipal Court appellants moved to dis- yl 3-::_ -° impose some incidental restriction Ion First Amendment • freedom of speech and expression, it is certainly no greater miss.the charges-filed against them due to•a denial of their s V. . than is essential to the furtherance of the governmental constitutional lights under the first and fourteenth amend- _` interest involved. Quoting from Crownouer, 9 Cal. 3d at • ments to the United States .Constitution. ,The court ruled j' against their motions. Further, the. court granted a motion :'' 3 Gabriele v. in limine excluding all testimony that the behavior of .1' • Old Orchard Beach,420 A.2d 252,256(Me. 1980),noted that the ` • ,:'s "•appeal in'State v. Baysinger, _Ind. _, 397 N.E.2d'580 (1979), was dismissed i appellants was "communicative or expressive-•of ideas as li;1.r2: 3'R • by the Supreme Court for want of a substantial federal.question. It noted that bein •irrelevant to, the constitutional issues. U on their I'`, ~'f, p g f p �� , pursuant to Hicks v. Miranda, 422 U.S. 332, 45 L. Ed. 2d 223, 95 S. Ct. 2281 = conviction appellants filed a writ of certiorari with the King ! ' (1975),this disposition signifies that the Supreme Court sustained the decision on t I , the merits, with precedential force as to all courts except the Supreme Court 'i County Superior Court rather than seeking their remedy of a; (',,i.::.r-itself.Baysinger upheld a public indecency statute's application to topless danc- ; a de novo trial by that court Appellants again argued that I: ,: ing in any public place, providing that the dancing does not occur as part of an a artistic production. the ordinance 'violated their.constitutional rights. Superior :s t Court Judge.Noe dismissed the writ and affirmed all con- . `..,..„Appellants did not argue in the courts below that they were covered by the i V1CtlOri3:'eJudgB'.NOe?Spoke of the motion in limine in rela- �; .P, t ;F ',. dramatic performance exception to the ordinance.Having failed to raise it below; tion to the constitutional guaranty of freedom Of expression :?:. ' such argument is deemed waived. See Bradbury v. Aetna Cas. & Sur. Co., 91 agreeing that the'evidence as to. the communicative nature Wri.2d 504,512,589 P.2d 785(1979).This court should not have allowed the issue . on the merits.Thus, I do not agree with the majority's unnecessary discussion of Of the activlty was :irrelevant to the constitutional issues. li . the issue. Both Dore; J:,1 and.Stafford; J., discuss the constitutional ,Y IP, s. CURTIS v.SEATTLE Feb. 1982 'r Ir4 i?0 Feb.1982 CURTIS v.SEATTLE • 714;. 97 Wn.2d 59,639 P.2d 1370; _ 97 Wn.2d b9,639 P.2d 1370 •. ' III ;_ , I issue involved at great length and no additional discussion since.it was not ro err : reserved, havin been.waived at P P YP g 11 is here necessary.. thetrial level. . ," - . ''=`'. . ' Appellants'now contend that their conduct was within In any event there is substantial evidence.in the record ;'i1 ;�' the ordinance's exemption for artistic or dramatic perform- to support the judge's finding that the behavior' was pro- .I*;F,: `antes in theaters and the trial court should not have scribed by the 'ordinance. The photographs, affidavits,:and ' it :excluded the evidence as to the communicative nature of view of the scene gave him a peculiarly good grasp of the their conduct as it bore out their statutory argument. setting. The coin-booth arrangement itself was unlike any 11 Appellants, however, never raised this issue until they of the examples of theaters given in Seattle v. Buchanan, :w; reached this court. Accordingly, the argument is not timely 90.Wn.2d 584, 596, 584 P.2d 918 (1978); in its isolation of l = and we should not consider it. I am puzzled by the asser- the performers; and.its intermittent, 3-minutes-for-a-dol- V h' tion made by the dissent that appellants' constitutional lar viewingarran ement. =- • claims necessarily included a claim that the conduct was i g , w•' exempt from the ordinance. The constitutional and statu- UTTER, J. (dissenting)—To resolve this case we must ,i. ;„ i tory arguments are two separate contentions. inquire into the gray area between appropriate legislative ,,:Utter, J., in his dissent, contends that without the regulation of,mo ality arid unconstitutional encroachment :1 } '' ;e_' excluded evidence the prosecution did not prove all of the , on human liberty.While the history of modern government `�, essential elements of the crime and therefore we must con- has'reflected the struggle with the extent to which morality ij sider appellants' statutory argument. I fail to see the merit can' be legislated and subsequently enforced, J. Mill, Pre- 14,; :,of this argument. faces to Liberty 241 (1959); P. Devlin, The Enforcement of ; 'n;=� The majority recognizes that the pivotal question with Morals (1965),IH. Hart, Law, Liberty, and Morality (1963), 5_. ,regard to the applicability of the statutory exemption is it is the Legislature which must initially define the will of ,, 11.1 whether the place of performance is a theater or museum. : the public..The constitution is our only guide in passing on ;i� If it is not, the content of.the performances is irrelevant such legislation, and its insistence upon reasoned, consis- ' ' under the terms of the ordinance. The trial court never tent regulation frames our inquiry. i limited evidence as to whether the place of performance The majority opinion is incorrect inasmuch as it errone- i! was a theater. Rather the motion in limine excluded only ously upholds the trial court's refusal to permit appellants testimony as to the communicative or expressive nature of to demonstrate their activity was not obscene and therefore 4; the conduct. In addition, the municipal court judge had not proscribed by Seattle's lewd conduct ordinance. The ;'r, before him the police reports describing the behavior, majority also mistakenly imposes a narrowing construction G extensive photographs of the actual performances, affidavits on Seattle's body studio ordinance, which the ordinance I' f describing the setting and background of the show, and had does not contemplate. And finally, the narrowing construc- , i. personally gone to the scene and inspected the booths and tion imposed by the majority does not itself pass constitu- viewed the performance area. Following this extensive fact- tional muster:' ' ,. - - 1. 16 finding process he found that the performance area was a LEwn.CONDUCT ORDINANCE "bed". This necessarily excludes a theater or museum as , the court was required to find their absence in order to The-:majority opinion upholds the trial court's ruling on ;;=Ta respondent Cites motion in limine denying appellants the '!'' ;,r;. convict. The appellants first challenged this finding on appeal to this court. We should not consider the contention opportunity to submit' evidence that their activity was ?" s' 1 ii':7z 72 • CURTIS v.SEATTLE Feb. 1982 Feb:1982 CURTIS v.SEATTLE. 73 Ij +,,'. 97 Wn.2d 59,639 P.2d 1370 97 Wn.2d 59,639 P.2d 1370 communicative. Although appellants' contention may strain - 1 did.,not involve a claim that the proscribed activity was G `.:: credulity, the onlyissue is whether appellantsprotected by should be expression rotected the "First Amendment; this case „r given any opportunity to present evidence as to whether does involve 'such a claim. By holding in Buchanan that their conduct was protected by the First Amendment. We Seattle's lewd conduct ordinance- is not unconstitutionally 1' -, do not reach the issue of whether the conduct, if communi- overbroad, we stated only'that the ordinance did not by its j;? t3 cative, was protected by the First Amendment.' The only terms proscribe constitutionally 'protected activity. This ;;K,`: question is whether the trial court was correct in foreclosing holding:is irrelevant to a claim that a particular application ;; ;;, b .; inquiry into the entire area regardless of the merits of of the ordinance goes beyond its contemplated scope and :1'`;" appellants' i,''--- : : pp proffered evidence. unconstitutionally proscribes activity protected by the First 11 .5 Amendments Therefore, appellants' ability to present evi- 11 :: Appellants' reason forpresenting Bence that their,activity was communicative was crucial to I ;3 pp such evidence was to their claim that the ordinance was unconstitutionally ,; $� demonstrate that their activity was not obscene and thus ! ' ., not subject to proscription by the lewd conduct ordinance. applied to them. The trial, court's rulingrefusing admission ;;�t - Seattle Criminal Code (hereinafter SCC) 12A.10.070. i^/ of such evidence was thus reversible error. ,1 . - .• The majority cites Seattle u. Buchanan, 90 Wn.2d 584, I II 'f`,' ,Y, 584 P.2d 918 (1978), in which we held Seattle's lewd con- The'majority deals separately with appellants' claim that ri. • . if the `were allowed to' resent evidence' that their activity ^f duct 'ordinance not unconstitutionallyoverbroad, as Y pY 11! authority for dispensing with appellants' claim. In doing so, was communicative such evidence would have established ' the. majority. fundamentally misconceives the difference that appellants' activity was exempt under the ."artistic or (1` a between a claim that a statute is unconstitutionallyover- dramatic performance" exemption of the ordinance. SCC 1=-1 , broad and a claim that a statute is unconstitutional as 12A.10.070(D). The majority's analysis of this separate 1,, applied to a party. Here, appellants claim that Seattle's claim is flawed in two major respects. i :- i 1;;, •.ti I. r lewd conduct ordinance is unconstitutional as applied to i A I them. A ruling by this court that Seattle's lewd conduct The majority refuses to consider appellants' claim that It s ordinance is not unconstitutionally overbroad is irrelevant their activity was exempt under the ordinance because, it r r, to appellants' "as.applied" claim. All statutes that are not argues, appellants raised this claim for the first time on x= unconstitutionally overbroad are capable of unconstitu- ':' � appeal. In truth, appellants' claim that they are exempt is ;;:�3 tional application. L. Tribe, American Constitutional Law _,g'=_ 711 (1978). As the majority concedes, the Buchanan. case precisely the same as their claim raised:at trial that theirP 6See California a. LaRue, 409 U.S. 109, 119 n.5, *L. Ed. 2d 342, 93 S. Ct. ;, "; 6Appellants were prepared to present extensive evidence in its favor. A num- 390(1972),where;the Court stated: 1- ber of experts were prepared to testify that the purpose of appellants' organiza- " "Because of the posture of this case,we have necessarily dealt with the regu- qq tion was to accept one's sexuality. A prominent sexologist who helped design the lations on their face,and have found them to be-valid.The admonition contained i! show at the Temple of Venus was prepared to state the purpose of the live show in the Court's opinion in Seagram&Sons v.Hostetter,384 U.S.35,52(1966),is IA was to provide an example of a spontaneous warm and sensual experience. Pro- equally.in point here: 'Although it is possible that specific future applications of fessor Pepper Schwartz of the Universityof Washington's sociologydepartment g h g P [the statute].may;engender concrete problems of constitutional dimension,it will j1{:.., was prepared to testify that the Temple of Venus represented a group of people- be time enough to consider any such problems when they arise.We deal here only ,9�''-: I sincerely committed to human liberation through relaxation of sexual inhibitions with the statute on its face. And we hold that, so considered, the legislation is iii,' and taboos. constitutionally valid.'" t : ,`- CURTIS v.SEATTLE Feb. 1982 I:,' i''::� i CURTIS v.SEATTLE ; .: 74 � Feb.1982 75 n. r „• , ,, - 97 Wn.2d 59,639 P.2d 1370 97 Wn.2d 59,639 P.2d 1370 ':: activity was not obscene (discussed in part I, supra). In morals is anydifferent from the State's interest with regard Buchanan, we held that Seattle's lewd conduct ordinance to obscenity regulation.' '` " ' �n. was not overbroad because it provided for an exemption for The'majority and concurring opinions justify the lewd f; artistic and dramaticperformancesprotected under the I''''t conduct ordinance as protecting the State's interest in pub- ,I; First Amendment. Cf. loran v. Salem Inn, Inc., 422 U.S. • lic welfare and morals. No attempt is made in these opin- ,'`��' -922, 45 L. Ed. 2d 648, 95 S. Ct. 2561 (1975) (court found ` ions to'differentiate'that 'state interest from the State's fi,.'- ordinance overbroad because it lacked any exemption for interest`in regulating obscenity articulated by the United performances protected by the First Amendment). To ``='�` States Supreme Court in' Paris Adult Theatre-I v. Slaton, :. maintain a coherent and consistent jurisprudence in this 413 U.S. 49,E 58,'37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973) as I y„. area of regulation, the lewd conduct ordinance's exemption "the,interest of the public in the quality of life and the !I;; r must be viewed as coextensive with protection of expressive total community environment, the tone of commerce in the " •;_ activity that is. not obscene. For the reasons articulated � ',, great city centers,' and, possibly, the public safety itself. ~x below, the obscenity. standards adopted by our court in the overnment interest may vary in strength :;rya.,, State v. Regan, 97 Wn.2d 47, 640 P.2d 725 (1982), must be Although, g ' "* ' �' applied to the Seattle lewd conduct ordinance's exemption based on whether the.regulation is of conduct or depictions i b hd pp p or descriptions of conduct, the degree of strength will onl ':4%.'ii for artistic or dramaticperformances to integrate our hold- Y 1l g affect the balance and not the standards by which that bal- - ings in the obscenity area with the type of regulation con- ance:is'achieved.:We must.therefore construe the ordinan- 1 0 ;• tem lated bythe ordinance here. 1';:::�M. p ce's-exemption�as protecting nonobscene expression- that 11 L��,, ._,4.1 There can be no question that the State has the power to 'may not otherwise be proscribed by the State.$ ill 'k: r' regulate lewd. conduct and indecent exposure. Nevertheless, 1 such regulation must exclude expressive conduct within the 'It is true that when regulation is based on the police power attendant to I I',',A,': protective ambit of the First Amendment. Seattle's ordi- liquor licensing, the State is conferred with "something more than the normal i' y„ ''.',: ' ',state authority over public health, welfare, and morals." LaRue, at 114. In such I, :"s„ nance purports to exclude such protected expression .r. through its exemption for artistic or dramaticperform- circumstances, nonobscene activity may be regulated. Id.; Doran v. Salem Inn, 11..'' g p Inc.;422 U.S.922,145 L.Ed. 2d 648,95 S.Ct.2561 (1975);Seattle v.Hinkley, 83 II:`.� ' ances. Such performances are protected only if they are not .Wn.2d•205,517 P.2d 592(1973).At the same time LaRue:implies that unless the "II,,= , _obscene. The simple fact that they occur in theaters or Twenty-First Amendment is implicated,the State is limited to regulation of the III, `4 . . museums does not insulate from re ulation. obscene.See New York State Le'quor Auth.v.Bellanca,452 U.S.714,69 L.Ed.2d ii; performancesg 357,101 S.Ct.2599(1981).The States interest in liquor licensing is obviously not III t,,, ,, At the same time, a theater or museum is not the only present here. I - • , ._ 'l$''` place where conduct regulated by Seattle's ordinance may i'iv.' :.. ,, Where there is no claim that the.proscribed conduct is expressive, such con- ,, ;°,,; receive the protection of the First Amendment. Whether p thus lewd conduct.and ' r duct is outside thel ambit of First Amendment rotection; I_ ; u,;,, the activity is a movie or a live performance, the State's indecent exposure laws are generally valid.As the late Justice Douglas stated: g concern for public morality is the same. As to movies and ,.No one would,suggest that the:First Amendment permits nudity in public AA III ' q ' other depictions or descriptions of sexual conduct, we have places,adultery,and other phases of sexual misconduct. ,` adopted obscenity standards for ascertaining the permissi- Roth v. United states, 354r U.S.47 c 5concurrence 1r Ln tod. 2d 14as 77 S. Ca. the (1957) (quoted by Justice Stafford in his concurrence to this case). And as the United ,g f ble`scope of regulation. State v. Regan, 'supra. While the States Supreme.Court stated in Erznoznik v.Jacksonville, 422 U.S..205,211 n.7, `" "'" ordinance here regulates live conduct as opposed to "depic- - 45.L.,Ed.2d:125,95 S.;Ct.2268(1975): :;Rr; 's tions or descriptions" of that conduct, the City has intro- : • Scenes of nudity in a movie,like pictures of nude person sin a book,must ' be considered as a part of the whole work See Miller v. California, 413 U, S. ,? , : :',duced.no evidence that its purported interest in public • 15, 24 (1973);.Kois v. Wisconsin, 408 U. S. 229 (1972). In this respect/;It �` f'S%.,.....N , J 11/ me Kt I : Tit-';;.',_76 ) CURTIS v.SEATTLE Feb. 1982 Feb:1982 • CURTIS v.SEATTLE ' ?7 v;"`: 97 Wn.2d 59,639 P.2d 1370 i 97 Wn.2d 59,639 P.2d.1370 ti ' j';'J Since appellants claim that their activity is communica- in a theater or museum. See Seattle v. Buchanan, supra at ;„ s-, . tive and within the artistic or dramatic performance excep- 616 (Horowitz, J.;,dissenting). Our obscenity standards i:: ,tion to the lewd conduct ordinance, proscription of their (however difficult of application) have been established to activit maynot .be analyzed `sim 1 as- a regulation of ' provide a uniform methodology for determining if depic- 1``-' Y Y 'simply g ! conduct.9 We must provide the same scrutiny of appellants' tions or descriptions of sexual conduct are protected by the ; , activity that we provide for allegedly obscene materials. First Amendment. They are equally appropriate in anal z IA - Appellants' behavior may well be unprotected by the First ing regulation' of sexual conduct that is expressive, when !' Amendment and proscribable under this ordinance, but we the State has articulated no additional interests that might i cannot make judgments about such behavior by using facile -affect the balance. Thus,the proscribed conduct here "must devices.that refer only to whether the performances occur be considered; as 'a part of the whole work" Erznoznik v: -;,6 Jacksonville, 422 U.S. 205, 211 n.7, 45 L. Ed. 2d 125, 95 S. ',:, • nudity is.distinguishable from the kind of public nudity traditionally subject Ct, 2268 (1975), citing Miller v. California, 413 U.S..15, 37 :': to indecent-,exposure laws. `" L. Ed.'=2d 419, 93 S. Ct. 2607 (1973). Many courts have so F, Even where conduct regulated under such laws implicates the First Amend- a held. See Birkenshaw v.,Haley, 409 F. Supp. 13 (E.D. Mich. �:. ,`; ment; application of the obscenity standards will not dictate exemption under , 1! ; ". Seattle's lewd conduct ordinance. Furthermore,where the States interest focuses 1974); State v. .Walker; 568 P:2d 286 (Okla. Crim.• App. +; , on protecting minors,the'scope of regulation is broader than under the traditional �:� 1977); ,Dominguez v. Tulsa, 539 P.2d 758 (Okla. Crim. App. 1k' k,.,;; obscenity standards applicable to adults.Erznoznik v. Jacksonville,supra;Gins- I �r _i - berg v. New York, 390 U.S. 629, 20 L. Ed. 2d 195, 88 S. Ct. 1274 (1968). The 1975). See also Finer & Grant, Regulation and.Prohibition : r. invasion of privacy,see FCC v.Pacifica Found., 438 U.S. 726,57 L.Ed. 2d 1073, of Sensual Performances Under Nonobscenity Statutes, 10 i�ki 98 S. Ct. 3026 (1978), or the protection of privacy, see Stanley v. Georgia, 394 Crim: L.,Bull. 717 (1974). Cf: Southeastern Promotions, U.S. 557, 22 L. Ed. 2d 542, 89 S. Ct. 1243 (1969),may also inform the scope of Ltd,.-v: Conrad, 420 U.S. 546, 43 L. Ed. ;2d 95 S. Ct. I' _' proscription under the obscenity standards. None of these concerns has been 448, II n' r; articulated in this case,however. 1239.;(1975) (district court:found the play "Hair" obscene Iii .,, under state statutes, but Supreme Court did not reach issue i. a '' 9Although the analysis in the concurrence is appropriate to the overbreadth of in deciding:the case on prior restraint grounds). l • :the lewd conduct ordinance,it is not pertinent to appellants claim that the ordi- , 1 � • 'Mane was unconstitutionally applied to them. The concurrence is correct in its , In.�.sum, appellants claim that their;activity was not statement that conduct that is communicative "is not thereby shielded from goy- obscene and that their activity was within the ordinance's ernment regulation", concurrence at page 66, and Our obscenity standards reflect exemption are one and the same claims. It cannot fairly be ,1 e,, just such an approach. Depictions or descriptions of explicit sexual conduct may I :�; be proscribed if they lack serious literary,artistic,political or scientific value when said, as the majority contends, that appellants exemption "taken as a whole." They need not be utterly without redeeming communicative claim. was raised for the first time on appeal since that 'i' value.The analysis in the concurrence leads to the conclusion that Seattle's lewd . claim is the same as appellants' allegation at trial that their +, conduct ordinance is a valid regulation of conduct that is communicative since the l0 ' iii activity was not obscene. ordinance's exemption for artistic or dramatic performances saves froth regulation I II all constitutionally protected expressive conduct. Although this conclusion is cor- - ''sect, it defines only the beginning of the problem. No conclusion as to the ordi- 19While refusing to reach the question of the trial court's refusal to permit ' nance's general validity justifies the trial court's exclusion of evidence as to appellants to present evidence that their activity was communicative and within whether appellants'conduct was exempt under the ordinance.The citation in the the ordinance's exemption provision,the majority nevertheless comments in dicta ., concurrence to Bradbury v. Aetna Cas. & Sur. Co.,91 Wn.2d 504, 512, 589 P.2d that such a claim would at any rate be baseless since the trial court found that the -1 '785 (1979) as authority for appellants' waiver of this claim does not solve the performances did not take place in a theater. Neither the municipal nor the 11 problem.That case involved a nonconstitutional claim. This case involves consti- Superior Court made such a finding. Although each court stated the activity in I • 'tiitional claims that may be raised for the first time on appeal.See State v.Green, question occurred on-a bed, neither court found that the bed was not a theater. 94 Wn.2d 216,231,616 P.2d 628,637(1980),and discussion in part II B,infra. Such a finding is 4mere extrapolation by the majority.'Its statement that "The 8 I L' `' lower court's finding that the Temple is not a theater is supported by substantial k • `'gin.' • tl I i ".;.a°7 CURTIS v.SEATTLE Feb. 1982 ,�+• Feb.1982 I CURTIS'v:SEATTLE• �� . _ . 97 Wn.2d 69,639 P.2d 1370 97 Wn.2d 69,639 P.2d 1370 1 ' ' ° -"i 1" .+' - B cution had the burden of proving appellants' activity was f t; ' _'•f-t%Even if I were to ignore the above discussion and were to - not within the ordinance's exemption provision.:The.prose- agree with the majority that appellants raise their exemp- cution's-failure to so prove, and the trial court's failure to I tion claim for the first.time on appeal, the majority's deci- permit appellants to,go forward with evidence intended to I il sion not to consider appellants' claim is against the weight • prove appellants•were:within the ordinance's exemption, • of our decisions regarding claims•raised for the first time on appears to have denied appellants due process. appeal. '• ,Thus;.with'respect to the question of whether appellants I ::. . .''r Appellants. claim that the trial court's refusal of evidence . are•within the ordinance's exemption, appellants claim not ' 'as to the`communicative nature of their activity denied ' - only a loss of First Amendment rights but of due process them the. constitutional right to show their activity was rights Where a litigant raises a constitutional issue for , i protected by the First Amendment and within the ordinan- the first timeion•appeal, we have held that we will hear that il Y^ ce's,exemption for dramatic or artistic performances. constitutional claim. State v. Green, 94 Wn.2d 216, 231, 616 l t In addition, appellants argue that it was the prosecu- . P.2d 628.(1980). The majority's refusal to consider'appel- 1 • tion's.duty to prove beyond a reasonable doubt that appel- lents''claim' that their activity was within the ordinance's • lants' activity was not within the ordinance's exemption for exemption for artistic, or dramatic performances is thus `•' dramatic or artistic performances. Clearly, the prosecution baseless. . .y must prove every element of an offense beyond a reason- 1 v = 1 BODY STUDIO ORDINANCE ' ._able doubt. See Sandstrom v. Montana, 442 U.S. 510, 61 L. lii f`r� J' The majority holds that Seattle's body"studio ordinance, ;1i f •` Ed..2d 39, 99 S: Ct. 2450 (1979); Mullaney-v. Wilbur, 421 ��-� .: � SCC 12A.10080, is not unconstitutionally overbroad!' 5-,f�- U.S: 684, 44 L. Ed. 2d 508, 95 S. Ct. 1881 (1975); State v. i! _' Although the;majority concedes that Mlle language of the Hanton, 94 Wn.2d 129, 614 P.2d 1280 (1980). 'Section I • 12A.02.130(C) of the Seattle Criminal Code states "A body studio ordinance does not limit its, reach", it adopts the municipal court's saving construction of the ordinance, 11 defense is,affirmative, within the meaning of subsection B1 to the effect ! ' I' r; when it arises under a section of this subtitle which so ' ' " ?' Provides." (Italics mine.) .See Seattle v. Shepherd, 93 No reasonable person reading the terms body painting ,Wn.2d 861, 613 P.2d 1158 (1980). The Seattle lewd conduct • studio"; "model studio", "sensitivity awareness studio", '' and "paint, massage,feel,handle, or touch the unclothed 1•1:.;: ordinance, SCC 12A.10.070 does not state that its exemp- body" could conclude that it related to a-dramatic pro- i, • • tion provision is.an affirmative defense. As such, the prose: duction, Many' plays and ballet performances involve 1 much touching but the drama and the dance are central I i; evidence" is actuallya findingof fact bythe majorityitself. Not only ' to, theperformance The touchingis,incidental. "The ;,' is the statute must be, given a reasonabl construction to avoid majority not authorized to make such a finding, it lacked the evide7ice to do so. _ ;Since the trial court barred evidence on precisely this issue, a finding.of fact— absurd consequences", State v. Cann, 92 Wn., 2d 193 1 even if it had been made by the trial court—would be of no weight or consequence - (1979): I. !� .on review..Finally, and more fundamentally, the question of whether or not The majority's adoption of this narrowing construction iS I;, appellants' conduct took place in a theater should not be diapositive of an " 'Obscenity determination.A theater is neither the exclusive province of nonobscene misconceived.both as to the,appropriateness of a narrowing , ! , protected activity nor does it shield obscene conduct from legislative regulation. construction fin this case and as to the scope of that con- By dictating that the work must be judged "as a whole," the obscenity standards •i indicate that,the place where the performance occurs is only one of many factors 11The ordinance is set out in full on page 61,footnote 2 of the majority opin 1 it - that contribute to an obscenity determination. ion. i 1 rf ' _ - . °q 1 ei;: .` _ I i • :';z;:' 80 CURTIS v.SEATTLE Feb.1982 Feb.1982 CURTIS V.SEATTLE ) •81 "" 97 Wn.2d 59 • 639 P.2d 1370 97 Wn.2d 69,639 P.2d 1370 struction once made. • °`±:' touching of an unclothed portion of a person's body makes - I the premises where such events occur a "body studio." . ° As an initial matter, the majority cannot mean to adopt the municipal court's conclusion that "b is own terms" " While a'reasonable person might not assimilate the term i = p y 1 body studio 1 with a place for dramatic performances, the i j the ordinance "does not'apply to any protected expression." phrase 'is entirely a creature of the ordinance and gains !i ;,• Since the majority states the language of the ordinance definition solely from the terms of the ordinance. The ordi- j "does not limit its reach," the ordinance is unconstitution- nance defines I"body studio",'inter alia, as premises where ally overbroad "by its own terms." The majority must mean one can view for consideration the touching of an unclothed ' only that a reasonable inference from the terms of the -portion of.the body. The question the.majority does not 'i' ordinance will save it from unconstitutional overbreadth. • address is whether a reasonable person might assimilate l The question remains whether the limiting construction of that definition with a place for dramatic'performances. the terms of the ordinance is a reasonable inference from II its terms. v, - 1 .`r The majority's adopted construction attempts to narrow ;;" The majority's_adopted construction goes on, however, .r. the ordinance in two ways. First, the construction states and purports to narrow.the scope of the ordinance's broad that >,.s definition, discussed above. The construction focuses on the + t.,;. [n]o reasonable person reading the terms body .„ ' 'sensitivityistinction that in.a dramatic or artistic performance the i'! 4:„ paintingstudio', 'model studio', awareness stu-t;x . . dio', and 'paint, massage, feel, handle, or touch the drama or.art ";is central" while the "touching is incidental," and that the ordinance is not intended to regulate inciden- �`=�: unclothed body' could conclude that it related to a dra- tal touching. The ordinance makes no reference ,at all to �, : ' matic production." While that assertion may be true; the , ordinance makes clear that a body studio is "any premises this central/incidental distinction; we must assume the ,., . upon which is furnished for . . . consideration the majority is imposing this saving construction on the ordi- i opportunity to observe, view or nance's definition of "body studio" so to avoid the pro- !II 'photograph '.r. paint[ing]; massag[ing], feel[ing], handl[ing], or touch[ing] scription of constitutionally protected expression. But fromti the unclothed body or an unclothed portion of the body of whence does ;the distinction the majority embraces ema- . another person . . ." SCC 12A.10.080(A). The terms "body „ nate? By what authority does the central/incidental dis- '; studio", "modelstudio", "sensitivitytinction arise? Is it a workable standard? And above all,. is !s, painting and aware- :' +;i it constitutional? The majority answers none of these ques- .ness studio" are not, as the municipal court construction ' :'4 ; i:' '`. implies, requisite to the definition of a body studio.12 Since tions. : : '' the terms are unnecessary to the definition, they do not 'f' In Doran v.� Salem Inn, Inc:, 422 U.S.'922, 45 L. Ed. 2d help narrow the scope of the definition. Under the express • 648, 95 S. Ct.j 2561 (1975), the Court found unconstitution- 1 il ii terms of the ordinance, viewing for consideration the , ally overbroad a local ordinance banning:topless entertain- ment: In Seattle v. Buchanan, 90 Wn.2d 584, 598, 584 P.2d i?j 12In discussing these terms, the ordinance uses the conjunctive "and shall, .-,j, 918 (1978), .we cited Doran with seeming approval.in stat- I j !' ;. . include",which does not restrict but only adds to the scope of the ordinance. As ' :. in "The ordinance under consideration there made no f i • an example, "Temple of Venus" is not even similar to the titles enumerated in the l g:. . I. = ' ordinance, but the City argues here that the Temple is nevertheless within the , ; allowance at all for artistic performances. For this reason, i 11 '! intended reach of the ordinance because people could view for consideration the the Supreme I Court found it overbroad." Distinguishing "., touching of human bodies on the Temple's premises. _ Seattle's,lewd conduct-ordinance from the ordinance in i '� . k_t.'. :.: 8', 1 CURTIS v.SEATTLE Feb. 1982 } Feb.'1982 ;: BERTSCH v.BREWER . 83 i[; - 97 Wn.2d 59,639 P.2d 1370 • 97 Wn.2d 83,640 P:2d 711 I, is Doran, we went on to state: obscenity.'balance, it does not define that°balance. i< Since the ordinance here specifically makes allowance Thus, inot llonly is,.the majority's narrowing construction • for artistic performances in appropriate establishments, uncontemplated by the terms of the body studio ordinance, - it is not open to the criticism which caused the court to the scope of the construction is not narrow enough to pass !' strike down the ordinance in Doran v. Salem Inn, Inc., constitutional.muster. No regulation that by its own terms . supra. fi, Buchanan, at 600. controls expression protected by the First Amendment can ! ',, be,saved by the;central/incidental distinction the majority r; ,-',The majority s construction here attempts to remedy the proffeis`through its adoption of the municipal court's con- absence of a dramatic or artistic performance exemption in - struction. Without demonstrating a compelling interest dif- the E! body studio ordinance through its central/incidental ferent from the State's interest in regulating obscenity, the 111 distinction. Artistic or dramatic performances are exempted City of Seattle'may not regulate more: restrictively than 11; by the body studio ordinance, so the argument proceeds, would be permitted by application of the State's obscenity ' ik because the ordinance does not contemplate regulation of statute s ,where the conduct regulated is communicative and ,; �, premises where the "touching is incidental." Following the implicates the First Amendment. li majority's inventive narrowing construction, why could ii' have not the Court in Doran narrowly construed the ordi- ' - 'l l i;- , _ nance there to exclude topless performances where the top- :' h!'., ... lessness was "incidental" to the� '. performance? While the i i` United States Supreme Court certainly had the inherent [No. 47466-4. En Banc. February 11, 1982.] I':,'`- power to provide such a narrowing construction, it declined, MARTHA MARY BERTSCH, Petitioner, V. GAYLE i k:' •.to do so. I might conjecture the Doran Court declined to i F. BREWER, ET AL, Respondents. ' make such a narrowing construction perhaps because a ' al rewriting of the ordinance would be necessary to reach that [1] Evidence!—Hearsay —Medical Diagnosis —In General.A +I result." Erznoznik, at 216 n.15. patient's statement to his physician which is outside the physician's Even if I were to assume that a narrowing construction is diagnostic procedures and which is not in fact used by the physician ;i appropriate here, the central/incidental distinction which is in, making] a diagnosis does not fall within the exception to the ,i hearsay rule for statements made for purposes of medical diagnosis ' the basis:;for the majority's narrowing construction does not or treatment (ER 803(a)(4)). j narrow the scope of the ordinance in a constitutional man- [2].Appeal and Error -- Harmless Error — Evidence of Dam- ! ,,-:- ner. The majority's construction of the body studio ordi- ;ages Nonliability. Only errors which relate solely to the issue !i i ' nance provides an exemption for fewer activities than does , of damages are rendered harmless by a verdict of nonliability. 'iII the lewd conduct ordinance since the lewd conduct ordi- [3] Depositions — Unavailability of Witness — Discretion of ii - nance does not require that'the drama or art be central to .. ,Attorney:.As a matter of trial tactics, an attorney may use a wit- i the performance. Yet, just as the exception to Seattle's ness' deposition instead of producing the witness for live testimony i,I lewd conduct ordinance must be read in light of our if_the requirements of CR 32(a)(3)(B) regarding the witness' resi- ,it I . . obscenity standards (see discussion supra in part II A), so Bence and cause of his absence are met. . '' any judicially created exception to the body studio ordi- [4] Trial' Taking Case From Jury — Sufficiency of Evidence it nance must be read in light of those standards. While the — Directed Verdict. A directed verdict is not appropriate unless iIt central/incidental distinction may be a factor in the : the evidence presented and the reasonable inferences therefrom, :.1 when, viewed most favorably to the nonmoving party, would not I j!! x ::: - -4,- io • Pait , .4 yti +� lT a'i f=,R } qt ' 746 SEABOARD v. WILLIAMS' NW CHRYSLER [Jan l',L. ; 18331 SEATTLE v. BITTNER 747 ,,; ' '.: 81 Wn.2d 740,504 P.2d 1139 %t r ' ',` 81 Wn.2d 747 505 P.2d 126 ,.'f-, ,', lar• tions of unfair and deceptive acts and practices (whicki "'si tend with a judgment under which he will have to r incidentally might constitute "unfair; methods of r" uch dama es. It is not contended that the plaintiff, by ,,,P,41,`Y i �H¢ t s} petition"). Where these facts are shown, the court can` rd•_ ,.r o.ntract of insurance, undertook to defend the defend- :iv, •: ,. fig.; 1,. restitution without the necessity of 'hearing additik i•i aj,_agamst an injunction action, not involving a claim for r' evidence. If, in aparticular case, an order of resti' u.h,' upon ,,_ .- -` �. �ges�based one of the causes of action set forth in i' ` > could not be entered without the introduction of additi. ►! policy. -.. 11 : evidence so that the trial would be unduly lengthetie4 s? '} a'dealer suggests that the attorneys fees provided for ,'i5 a' r '.; the court unduly burdened, the court has discretia ,; ,s,� =W-'19.86.080 are in the nature of damages. Whether ;;< f+ • 5, refuse such an order.' ' ;;l6 •- .,uh ,a;.correct characterization we need not decide, inas- . '� • }!'. This case reveals the rationality of the manifest leg : ,.l; .as'-they clearly are not damages awarded the state for w !L';•., tive intent. Among the practices of the defendants of:y , u., =r+al alri competition." t: t ,.vot the Attorney General complains are these: Obtaining gr� i!e e conclude that the trial court was correct in holding } fs ''- session of a customer's automobile prior to or during i �i;r the'insurer is not obliged to defend this suit for in- � ' tiations and'then refusing to return it,if the negotiatjo;'i ,s�...otion, statutory penalties, and incidental relief, there ,x==, i were unsuccessful; failing to account to the original ba t. ,r l g no allegation in the complaint which brings it within i !!! for excess moneyreceived in resales of re ossessed;,r:`• s?��: overa a of the policy. -t tii i E p C g p Y• : 1ik I and failure to refund to customers unearned insurance ' ,, ''t" "' ?;.,_ e,ludgment is affirmed. ' • " i miums. In proving each of these allegations, the Attofiri:} • u4Lxr;. 4'$ , e MILTON, C.J., FINLEY, HUNTER,. HALE, STAFFORD, i,,,, Vito- !� ' General would be.expected to show specific instances�1 s;, , +�jal:1 such practices; the identity of the automobile:I,or ^,. ‘'�.L. Bri.and UTTER, JJ., concur. 1. 1 'I1" amount of moneyunlawfullywithheld would be Gusto -iit: '_ ;vr+t`- .o-,-, k�s,i;, . r.i. 4- r '!: } '�! ily shown as a part of that proof. No further proof .o !4 ,: �, 1; be necessary in order to justify the court in ordering.'e•`,+!• '' ;4`, ' • I' . i . J ,•'S'4 [No.42080. En Banc. January 11, 1973.] �`� x tution• :0,4, - . 3 fix E ss1.i` But if the Attorney General were to. attempt :WI-A,O',1 •{ ,i CITY OF SEATTLE,Appellant,V. HAROLD G. BITTNER et al., t=' :! that a competitor had been specifically damaged, he wo, 41 rj. i_i ,; Respondents. ;f , i,s4,,` have toprove the fact and the amount of lost rofits of� 'i;t, f I he` s'+, p �1 Theaters and Shows—Constitutional Law—Freedom of Speech— ,$ � ; Competitor, with the result that the trial would be.:.lxle' 'Motion Pictures—Restraints—Presumptions. Any restraint imposedJ. .;V' ,. tably complicated and prolonged. flr� pon,;motion pictures and plays, which are forms of expression - '�' k titled to the free speech and free press guarantees of the federal ;'a'; f,!'! :;. The Attorney General's responsibility in bringingscq -;; ,.:nd- state constitutions, bears a heavy presumption against its of this kind is toprotect thepublic from the kind,:01 constitutionality. " r alx._ 0,5,.. . il business practices which are prohibited by the statute;ri { unicipal Corporations—Business Regulation—Classifications— g, . ` ,, not to seek redress for private individuals. Where re11e'',6 • ffect.The authority to regulate various business enterprises gener- '4 ' ,"iE.t -'ally�,'depends upon the classification into which the business or 15 'ice i' provided forprivate inclividuals wayof restitution s :,- „� 'l ;,,,' by ..1i1,1 • '�i1Ceupation falls, with ordinary vocations pursued on private prop- , . only incidental to and in aid of the relief asked on behalf«i.( • � "` ,^: r"l�% by private means being the least subject.to regulation; busi- • F! .n'i` t• �.. :1 ;,,,, the public. '.�*�_��� +=.�eases:involving some social or economic evil, or those which may ' it+,�,, 4� gcome a nuisance or hazard although conducted privately and on ' ' ��`,p . Since the complaint of the Attorney General .does, �s � � ,, _I'- seek damages for unfair competition, ,the dealer `is- n0 3 •,I _, 1:.:•• "4"i ; ,=I I t kit.„,-. ,T *, - , is:. 1;;.r ,,.r +h" ;An 11873 SEATTLE V. BITTNER 749 #z;; ' 748 SEATTLE V. BITTNER [Janr 9.. ] • • 81 Wn.2d 747,505 P2d 126• • � �zs 81 Wn.2d 747,505 P2d.126 .;r °' ' i firr, " a' tern without licenses. In cases involving operation of - ,` ' private property being more regulatable; and those which�$u , . � g h °'� �' t,t public property for private purposes being the most suble0 P, 1iMecca Twin Theatre located at 711 Pike Street, the regulation. + "` r ,Z !C@nsee s application fora renewal of theater license had , # � +`� ? [3] Municipal Corporations—Licenses—Licenses—Qualifications—Charae x * 111 ' - ' ` A , 14 1-• •ril denied by the city council on the ground that•one of s4 _ i,,? Applicant=Relevancy. While in some limited instances a lice r,r xi , .a s Cl' • , ; }censee s officers had been convicted of exhibiting ob- a authority may establish certain character traits of the app$ r ;' i ,• i..N. rt i. ,rin valid qualifications fora business license, such traits mustAl v i giamotion pictures: In cases involving the operation of 4t1,,' , .,rational connection with the particular activity being licensedy + Adult Book Store theater, located at 1415-1st Avenue, , t' [4] Theaters and Shows—Constitutional Law—Freedom of 8p�e m - t, application of respondent Kravitz for an initial license ;,n `f i Motion •Pictures—Prior Restraints. The denial to a citizen r t•r'� d� I i f Vi Sif denied. upon the ground that the theater had been i 1 right to exercise one of his constitutionally guaranteed freedo pyl ry ' " the grounds that he has abused.that freedom before, e.g, ref�l'••.( f F'•.Sirated, without a license, the application having been �'' A �" "14nded pending the justice court prosecution of one of ,,i1,1: a license to operate a .motion picture theater duei,to 10:1 .1,:.,. : :• ,1N conviction for exhibiting obscene movies, is an impermissible • 7 'Pbookstore employees for sale of obscene material at the • z°'f restraint and is unconstitutional. " 4 ', '' , , rn -0 muses.. x . ! [See Ann. 5 A.L.R.3d 1214; 4 Am. Jur. 2d, Amusements and fi i - hibitions§21.] +xl . ' �'[iupon• appeal to the superior court, the convictions were • r [5] Constitutional Law—Freedom of Speech—Prior Restraint—BI 23' ersed, the court holding that the ordinance in question j. Censorship. The making of an obscene communication,lms ' ,. constitutional upon its face. The city has appealed. i 1 ,. 4 ' restrained only if certain safeguards are present, including pF ; r: ~• �`a sion for prompt judicial review of the censor's decision. The?p= •. ertinent portions of Seattle Ordinance 48022 § 11 as of refusal to license a motion picture theater may not be us t.(;;: is ended,are as follows I$E I` effect blanket censorship. 0;02:100 Licenses granted by council—Application .. ,p ' 6 Criminal Law—Statutes—Constitutionality—Effect. Failures to t' " `° ', roc'edure and information required The following li- r l7 l ply with an ordinance found to be unconstitutional is not a c,,,IL„, , $i a ises may be granted only by the city council: A ' Ill FINLEY and STAFFORD, JJ., concur by separate opinion;•HALE,.C„4 •, fi t h t , •r, t ta.i;•. jt. I�f' HUNTER, J., dissent by separate opinion; BRACHTENBACH, J., di• it,• r,(6) Theater licenses � •:' ';a„, participate in the disposition of this case. Yr `'•; 1f Appeal from a 'ud judgment of the Superior Court for s. ;7� dA lication for anyof the above shall be made in the. tti ; a,dt;•,. pp J g p } �::. pP , ��,�. ,,j County, No. 57020-31, Ross R. Rakow, J., entered Jul"t ? ' O'fce of the city comptroller on a form prepared by him •,� !, Asti : substantially as follows: ' 44.4' 1971.Affirmed. . I ' Prosecutions for, operating unlicensed motion;,• t'�'�i +r,:'Ft • . . The comptroller shall forward:all such license .. '1 " theaters. The .prosecution appeals from ud ents o . ,,applications to the city council which before acting upon J '.- a j p pp '�the,same shall request the chief of police to investigate - �' ` `- , ;; quittal. ,;' .!kirk.-b ,, the 'truth of the statements in the application and all , . , " A.L.Newbould and Arthur T.Lane,for appellant `k 'bother matters which might tend to aid the council in ,i t" determining whether to grant the license. The chief shall &'�� . `` Young &Hof and Victor V. Hoff,j',for respondents ak ' :fieport to the council as to reasons he may have for ob- t 9 •, it • j,gting to the granting or renewing of the license. If the Ai :r r RosELLINI, J.—These are consolidated Crlmirial�a [`= iuicil is satisfied that the statements in the application t.,- . ,,? originating in the Municipal Court of the City of'Se '� "' true,.that the applicant and all persons connected f� ;.. Ug wherein the respondents were charged and-convicted'` 'tli:the, business are of good character and that the t i' 1,1 'violating Seattle Ordinance 48022 § 22 as amended ( `" ' ' . mises in which the activity sought to be licensed will „„ w ,. .e:conducted.comply. with .the requirements,of•all ordi- %,, • =E�' - Code § 10.04.010), in that they operated motion plc c i i ,4 i � f+. rs. � r • ` 1a. • s ' 750 SEATTLE v. BITTNER • [Jangle, c ;1�73] SEATTLE v. BITTNER 751 `* . , �iji 81 Wn.2d 747,505 P.2d 126 jq is 81 Wn.2d 747,505 P.2d 126 4 i' V. J,; nances relating to buildings, fire, health and sariita'ti � o,r omes into court bearing a heavy presumption against , and that such premises are situated in a place where;�su,I c L.-constitutionality. `., L''E businesses are not prohibited by the Zoning Ordinaries + eordinance in question denies to certain classes of Ijs 1 {+ other law and that all other requirements and conditi�;r. �'' those who in the o mion of the citycouncil are �T .' /' t'}. of this chapter relatingto the business for which,,t },. p , !i.�,: p 1+0,-of good character, and those who have been convicted ��i; license is sought have been met, it shall by resolut�i�� •;, � 'qt d �ertain type of crime within a specified �' „ },}fir,: direct the city comptroller to issue such license,.,(AO period—the x'd ' ' ' t . wise it shall deny the same; Provided, however,+=•tha , # ',, ht,to engage in .the business of showing motion pictures. Y-ti`,the a licant if a cor oration of its officers x h: g y ,. #" " applicant (orp any ),,, l8eekin to 'ustif these restrictions, the appellants,.v " , � within ten years of the date of application been convic ". „� that they constitute a proper exercise of its licen- ;"• tom, of any felony or any misdemeanor involving morals` ' 1.-. ' 141 w�., t _empower. It cites the case of Tarver v. City Comm'n, 72 s +` • t i r ,, tude or intent to defraud, or has within ten years`of; ',11 ,, ' n � ?..,-,, 731 435 P.2d 531 1967 In that case we said of If date of application been released from a penal institutf! ( ) ;� ( ,'., or from active supervision on parole as a results"of; 1 f 1 ,:,Cgnsing power when used for regulatory purposes: Rs if such conviction, no such license shall be grantedsy y, `' ,I} e wisdom and propriety of a municipal ordinance ,N. 4 i<' , vided; further, however, that the city council may(W ..;),s•blishmg certain standards, regulations or controls for :` - ,• ' :'-: not to exceed five years of such period upon satlsfacto;/ articular business or occupation is not a question for '`F, . showingbythe applicant of rehabilitation. The city:co court to decide; rather, the scope of our review is _ �� • ,,x� `+� pp c1 ,ti'' cil may grant any license as a probationary licenses •.r tea to determining whether the ordinance is within � F?> ',; l<` .. such time and under such conditions as it maygd _t�h,e,scope of municipal power and whether the ordinance ��'}� F', necessary to insure continued adherence to this ors o ' ;d the actions taken pursuant thereto are arbitrary, ca- ' .. j ° : ordinances, but no probationary license shall be grad} t iY, cious'or unlawful. 4' `e. 1. to anyone not qualified for licensing under this.chap". tz !Y , ,4,.. 2A We examined prior cases in which we had consid- F gip.• It will be observed that this ordinance lodges in the. , restrictions placed upon various enterprises by munic- x '` council discretion to deny a license if it fails to find th�: ': 'thorites and concluded that the authority to regulate ` ''`' . i applicant and "all persons connected with the business;, ; '4. depending.upon the type of activity or enterprise • + of ood character. It alsoprovides that a license may, no ' 71f ' ; i, g Y w ,ITihrfsda We said that generally businesses and occupations #; 4r t,s s. granted to any person who has been convicted of a•0 �� _ tl too categories—those:S ,ione of three which arepursued ` !��, "involving moral turpitude or intent to.defraud",within ,•:i; ;y means uponprivate property; those which in- ' - f Iii. p p p Y, 14 years of the date of application. It is these provislonS?W Ch:. ,l r ;spine,social or economic evil, such as gambling or , 'I ! the, respondents contend and which the trial courtr;h ,i - 6� . , traffic, or which may, under certain circumstances, £, r,. -,'t'J t`a,nuisance or hazard to the public health and ;.t`': } ti constitute an improper use of the licensing power` to '. strain the exercise of rights guaranteed under the t , hdthose which involve the use of publicproperty ,' { a, t amendment to the United States Constitution and!,.i r streets or parks.' " ;, :, art. 1, § 5. ' ' +gin gil r v. City Comm'n, supra,. was an action in which l � ' [1] As we said in Fine Arts Guild, Inc. v. Seattleit` ,,� � e. 6p.., gab;;operator challenged the constitutionality of an F+ n•+ • `Fia. . Wn2d 503, 445.P.2d 602 (1968), it is now well settled' (1 , 1Fewhich bestowed upon the city commission dis- +p : EF a motion pictures and plays are a form of'expression erg �� {�, rare here concerned only with the power of municipalities to ,tO''' . "11[t` to the constitutional guarantees of free speech and, _ Ibsiriesses. Other considerations apply in the licensing of voca- ,F • „, t' °'t Also well settled is the proposition that; any restrain _�)ands professions such as teaching, and the practices of medicine x 1`' i posed upon a constitutionally-protected medium of e,,.•s ;, ,• 11w See 16 Am.Jur.2d Constitutional Law § 323 (1964). a ` i try , ''` _ 'yKcB f A ,Y'i� r r 4l 0 ,,,, i $r ' ,i!V i..'46: -, ,,, 4.4:- • tq t o 5, f• 1/ i. t 'e. 752 SEATTLE v. BITTNER ,[r fi',187s'." Janh1973] SEATTLE v. BITTNER 753 =, } ✓, o r E 81 Wn.2d 747,505 P.2d 126 r ' `. 81 Wn.2d 747,505 P.2d 126 ` fir'. cretion to deny a license to a person who was not found d• nks and candy on private property could not be denied a �s :T` ` l: be of good moral character and reputation. We; obser T•E • J sense at the discretion of the licensing authority. We said `„f. l r! ,; ' 'that case that an ordinance which authorizes the issuing c' that the character of a driver of a taxicab is a relevtl s x' : factor •in determining his qualifications for.a license;bec°a` , , i $,withholding of a license to engage in a business which `' '' ' `i• of the safety hazards involved as well as the tem tatio+' X' - y,,a thin itself is ordinarily perfectly lawful, and commits to `, fig engage in illegal activities such as liquor traffic, andjfurflter., : y`officer or set of officers the power to decide according �'-' ti is that the taxicab operator uses the public streets to�pur•§u-1- t• heir,notions in each particular case the question of the " • . I his business. For these reasons, we said, the' powers • opri•ety •of issuing or withholding a license therefor, and ' ..- ',4g regulate is broader than it would be in the case of ai `i 'V us�''to decide who may and who may not engage in such • mot f �d'' . ness carried on upon private property and involvg . Business, is authorizing the exercise of arbitrary power in ., = F `r' extraordinary hazards or risks of illegal activities.:; , , ,K'.' y olation of the fourteenth amendment to the United States '-• �,,, We held in that case that the discretion lodged in the i' Constitution, which provides that. "No state shall t,, •t•.F commission was not inappropriate to effect the legitth1 to t'e$yyto any person within its jurisdiction the equal pro- , siu{i; u oses of the licensin act, notin that the exereisr 'l , `��tian of the laws." ,' .!! + g g ill' that discretion would be subject to judicial review for'.`fir i1._'. a said further: • ;`" t. �t `:1 trariness, and that the factors considered must have aria ,4,41We do not in our present inquiry take note of decisions `'4..I '11, sonable relationship to the licensed occupation. , e.l3 ft Whlch have to do with the granting of licenses for the w J1 sale of intoxicating liquors the maintenance of pool • r,I.,,, Another`case in which we have recently sustamed th �� , �l;, ,` f . rooms, the practice of professions, or entering upon occu- i a r, { I„T right of a licensing authority to inquire into the charac Teri �<,pations more or less dangerous to others, looking to the ga'e ., '• 11i�}'�,r of an applicant is State ex rel. Pitkanen v. Zittel, 77 W42d • 'ersonal qualifications of the licensee. As-to such licenses ' Irk. • :0,k,.6 366, 462 P.2d 944 (1969). In that cases' the etitioner`!' ' `• there is necessaril involved some measure of discretion ; refused a license as a special policeman by the Taco'`: " to Abe exercised by the officer or body charged with the x1; i1 j ` ,.` r t duty of deciding who may. or may not engage in such z` .•;• chief of police, to whom the duty to pass upon the gifal i r �¢i t, . ,4- , businesses, professions, or occupations. Such cases do not ,�i;,. ', .,'i cations of applicants for such licenses_ had been delegated:,- 1/j.eal with constitutional rights so clearly ascertainable as •444,0 ,,,R by the city manager. The petitioner contended that;�s " u.', ,• those drawn in question in this case. • Gp,,;. Y'I, his services would be performed entirely on private'pro : E�,31-Wash. at 307. 'rt� 4 I ,.r `is `4rro �i; erty, the public had no legitimate interest which,required: . G ++ ,f Also; in Vincent v. Seattle, 115 Wash. 475, 197 P. 618 ' • �; the regulation of his vocation. However, we pointed4 :`{51921); we held unconstitutional an ordinance vesting un- ; f 'I'' that the badge of a special policeman indicates to'jthet, ` r. 2d;Qy. F, �t , b Idled discretion in the city council to revoke a license for .4b.� '�+4k.I i persons whom he serves that he has been approve:i by t x.-. . <y: i , : e�operation of certain amusement devices on private prop- a., i3 i, city police and can be trusted to guard the client s props `' ,�, and not•abuse his position. In sustaining the denial'ofi•; rty, We said that the operation of a place of public amuse- .f • t� , ent, on private property, involves nothing!which is neces- N,4`° • +I1:1 ;;, license, we also observed that any abuse of discretion ply ly• inherently evil, and the limit of legislative power • f :� the licensing authority was subject to judicial review `iLrit,., hereover is to regulate only. See also Seattle v. Gibson, 96 r< }? A ,! On the other hand, we held in State ex rel: Makris;v,. • ';ash:425, 165 P. 109 (1917). ,, , 'f}1�I • Superior Court 113 Wash._296 193 P.;845 12 A.L.R 14,2 = �s% _ [sj••' It will be seen, then, that the extent to which a u4 i!};, (1920), that one engaged in the business of selling sor.v. .$q.,;. r, . y .;'licensing authority may-exercise discretion in the granting iK_ "` .: q; , ;.. 754 SEATTLE v. BITTNER [Jan.= `. ' fl $,1973 - i0 • ,qti+-::,.',,c:, , v-i::::-;,; m. 81 Wn.2d 747,505 P.2d 126u 1 SEATTLE v. BITTNER 755 t ' ' 81 Wn.2d 747,505 P.2d 126 k• �, or withholding of a license'depends upon the type of,btzs ''' �� t= Oms—the freedom. of expression—which is protected '4 :4 ,�, ness or vocation which is involved. But even where;;.h under both the federal ..;"- p,t character of an applicant is subject to evaluations by;th ° a and state constitutions. �r; `: ,. Recognizing that this court has held, { •, licensing officer, the matters which he takes into iaccotp,b= `,; in Fine Arts Guild, j =7`Q7.v. Seattle 74 Wn.2 �,, must.be relevant to the particular activity which,is tot,,, " , d 503, 445 P.2d 602 (1968), that r ` t: r{ licensed. This rule is implicit, if not expressed, in;:all ; ,_ w'prior.restraint of the exhibition of motion pictures can bes,�• .- cases and was made abundantlyclear bythe United State- 'sorted to only under very limited circumstances the a m. 1 ` ,i; >;:,.r llant argues ' merely CI Supreme Court in Schware v. Board of Bar Examiners, that the ordinance provisions are s, Mtn, �` U.S. 239 1 L. Ed. 2d 796 77 S. Ct. 752 (1957). Speaki i punishm,ent forpast offenses involving showing of ob- '` ={.' � � the �.. 232, , , 4 Ogle movies. ,ti Yr t ; of the authority to license the practice of law, that co , , pp 1,. said: i•.,•: .e appellant does not advise us of the source of its AV. i ;.uthorit to use its licensing power as a vehicle for the 4.,a ;? A State can require high standards of ualification !su ,' ``"p, 1 G,' as good moral character or proficiencycirl its law,.befo A-4` • position of criminal penalties, much less to use that q'S7' �QVwer to punish an applicant for a second time forpast e, it admits an applicant to the bar, but any qualificati •�,. 4$E•{I must have a rational connection with the applicant's t+ • '; rases, Presumably an applicant who has been found °��a. 441! ness or capacity to practice law. i �., . y of showing an obscene motion picture has paid the I n i_ n crr:..�. I i' i in mind these \i-- �� halty provided by law for that offense. •is Having principles. we turn to Seattle f :: ! '' ordinance authorizing the city council to license the open . ;: -.. If;there is anything settled in the jurisprudence of 4 '�` ;` ngland and America J p k 'tion of motion picture theaters. The appellant does ,no,_ . _ it is that no man can be twice lawfully punished for the same offence. . =4 :,, ,z deny that a motion picture theater is a private busines :E 1 i carried on upon private property. There is no suggestion ; "v4„, 1,.G ,, [O]f what avail is the constitutional protection A° that the respondents use or claim any right in public prop ,1against more than one trial if there can be any tuber of '''lit erty for the conduct of their enterprises. , �&entences pronounced on the same verdict? f E, f: a1 ,, ,.� ,,,,, a There is also no contention that the.respondents' theaters;• `` '='` ' LW]e do not doubt that the Constitution was �t`r '' designed as much to prevent the criminal from bein j7i, ' €� are in violation of applicable zoning regulations. There`are ;twice punished for the same offence as from bein twice s r of course, possible health and safety hazards involded4 in tried for it. g 'f the operation of a theater, and the respondents do 'n0` '"'11 �`} '` ' question the right of the cityto regulate such estalil �h• ..i ,aparte Lange, 85 U.S. (18 Wall. 163, 168, 21 L. Ed. 872 Pt,xI, ' . g g ) 1' 0,,3)�. See also Davis v Catron, 22 Wash. 183, 60 P. 131 •. ';,;, meets in this regard: But the appellant does not sugg �' `; rrsoo) !;'.; that the character of the applicant is in anyres ect r l ' `: pp p ;,g,r* ; ra., �]a i But we need not consider the propriety of the use '�, vant'to the prevention of fire hazards or the maintenance!, �"' E ;the licensin p p Y ;, .'., sanitary conditions. It quite frankly concedes that the VA, ;e, g power as an instrument of Y.k '• punishment. ,the appellant labels "punishment" G' ° r pose of the provisions of the licensing ordinance;w-` ' is in fact an at- , , i, • r ,,1: pted prior restraint upon the exercise of a constitu- `' i i relate to the character of the applicant is to reduce'gth '• �rial freedom. i likelihood of obscene movies being shown. � d 5. ',.. „g he, appellant has apparently proceeded upon the as- 'l ` , Thus, the ordinance is designed:to place a restraint;upo,` &"` p ption that a person who has been convicted of the •t4,,, the conduct of a lawful business, upon private properi4 ,� `"z r_< ¢': which involves the exercise of one of the fundamerLtalf ffise of exhibiting an obscene movie, under RCW `° ;}; ; .�a 068 010, is more likely than not to com ' ';: . T, ,f:r. mit this offense t k` 0 ..,: :,„;;: -.,( ...i:: IIII �3'`6�{ Jan&I973, �Jani 1973 SEATTLE v. BITTNER� ✓'` '"=� 756 SEATTLE v. BITTNER L l757 :�, ;�. i=` 81 Wn.2d 747 4ri 81 Wn.2d 747,505 P.2d 126 ,505 P.2d 126 i , tagain. This must mean that, in its opinion, the im sition:',of; ,€ Near v. Minnesota, 283 U.S. 697, 713, 716, 75 L. 'Ed. 1357, 51,:; "° S Ct. 625 (1931): �R`�;'} penalties under the criminal law has neither a deterrent � nor a rehabilitative effect, and further that the penalties ,,rill4In determining the extent of the constitutional protec- ' prescribed are not adequate punishment for the offense ; µtscition, it has been generally, if not universally, considered t n .#. Whether or not this assumption has any validity, we Caret: f-c,that it is the chief purpose of the guaranty to prevent �. a ,•-• revious restraints upon publication. . r, I -[., �, convinced that the constitution does not permit a licensin ,. t. ,lp p p '11, agency to deny to any citizen the right to exercise onet'o + a wy'`.rrc,: ' That is undoubtedly true, the protection even : `�'- °" his fundamental freedoms on the ground that he'. :has:�'' i.?; ,��as.to previous restraint is not absolutely unlimited. But ::r; -{� a �cthe limitation has been recognized only in exceptional ` abused that freedom in the past. No case is cited which , , ' t � supports such a proposition and our research has revealed . , tc:cases: . . . ,; . ,, '' . '` The exceptional nature of its limitations places in a } t:`c :: none. , • . ; : strong light the general conception that liberty of the ', , g; ,press, historically considered and taken up by the Fed- ' In Adams v. Hinkle, 51 Wn.2d 763, 322 P.2d 844 (195,8)k, "„�A i Al this court had under consideration a statute, Laws of 1955 C}Tc ?�`'r ' All ; ,,eral Constitution, has meant, principally although not i ch. 282, which required a license of anyone selling or'po9 r'� ;exclusively, immunity from previous restraints or censor- x ` I�i,! gg ship. x4r-it'„ k sensing for sale any book, magazine, or pamphlet of a speei r L..ti ,,c..c# "}' ' fled type, and imposed punishment for sale of such material,,, the licensing act constituted an impermissible z; 1. ;.''! i • $ •- (prior restraint, and for other flaws in its composition, we �:. without a license. We said that this device which im o"sed' y 'E_>; punishment not for selling something which might ber con :• 3'held it unconstitutional. " `` , ti,,: i g;! sidered harmful (in that case, crime' comic books), but • :[5] As we observed in that case, not all prior restraint ,i,�, 7,i�.i. rather for failure to obtain a license, is prior restraint in ids%, ,.:f'free expression is forbidden. Distribution of obscene ma- ,: r• : '''Z •, ,`' terial or the showing of an obscene picture may be re- ., ;` }h��s most abhorrent form. h ' g ., .j & rained, but certain safeguards must be observed, includ- ! r; We quoted with approval the followin from an article ' '�y F i by Professor Thomas I. Emerson of the Yale Law School, •,� g provision for prompt judicial review of the censor's �3 1' • ,'El?, which appeared in 20 Law and Contemporary Problems,948 ,w- decision. Fine Arts Guild, Inc, v. Seattle, supra; Freedman �`i {E ., (1955): ,r1,� '.` ` v,;Maryland, 380 U.S. 51, 13 L. Ed. 2d 649, 85'S. Ct. 734 ' rs The concept of prior restraint, roughly speaking,-dea . .^,, 1re 965)'. The ordinance here in question. does not purport to 51.1a : p p p estrain only the showing of obscene motion pictures, ,4:. i,i, with official restrictions im osed u on s eech or oth1�T•, ^t forms of expression in advance of actual publicatio .r ` 'neither does it provide any of the procedural safeguards E `'', u Prior restraint is thus distinguished from suttee uep, which we have said must be observed if a particular motion i ' ,. ,,q punishment, which is a penalty. imposed after the,cdiri hi,;, ' munication has been made as a punishment for havingr , - p ture is sought to be suppressed. It is not a permissible ,P3[1 -.. ',�'0,:i made it. Again speaking generally, a system of .prior:. •' farm'of prior restraint. r .. ' '!„ The appellant acknowledges that a similar,licensing stat- , . ,. ,M; restraint would prevent communication from occ i l 'r f,�,:. . ,�i;,_ pp g k3;' .r at all• a system of subsequent punishment allows`sthe; id-recently has been declared unconstitutional by our sin- #`y`. i: ,t communication but imposes a penalty after the events `, er court in California, in Perrine v. Municipal Court, 5 '�,';,*•: course, the deterrent effect of a later penaltymayo erpili SI;: ate to prevent a communication from ever beingmade_-•f-f ..,:,Cal, 3d 656, 488 P.2d 648, 97 Cal. R tr. 320 1971. . However, MI • ' 't:`attem is to distinguish that case upon the ground that it �� �y We also quoted the following from the leading cas'egoi'• ,, �e�lt with the licensing of a bookstore, rather than a motion ;i , Ihi ` Tt f f ' r l I_ - r,, iiily, :'� r a: .:. s• i:; y ,-,1 ii C`',• • . 27_*:4...:: . .,.,..,!4,, :,..r11-.F. : --- .J -42,:-.:., • . ' 'ji,; , ��}� SEATTLE V. BITTNER Val,.' ' :,1873]i SEATTLE v. BITTNER 759 ' `# • • y.. :', lE` 758 +" ,�:: 81 Wn.2d 747,505 P.2d 126 , ,- f.q,1'• 81 Wn.2d 747,505 P.2d 126 a:"4+* h: picture theater. If any distinction has been made `( �� 'mid an applicant to operate a bookstore and any past J=, 'r ,� x O ' �, ., ;;;'}f fiction of any of the vast number of crimes listed in PI:, ,, ill''. oases between the quality of freedom guaranteed-:bY" . ,. . °a '. federal and state constitutions in communication +t''' i fi.Ftipn 329.4 he or any of his coparticipants may have t i`'.,,- e.g '• P). '• the medium of motion pictures and through the im-,, . k•° d t •i''F :.. ; , ticipants in the business of selling books require no •,' g, ., of books,the appellant has failed to bring it to our at�tent , Fie.-, 1a1'expertise. They are not like doctors or lawyers or ' ietr' The distinction which the appellant makes is that ""`- .4 1 7i}'.p , ,.- , .. ool`teachers whose past criminal convictions are often , , store is a far less "public" type of operation than,a`mb - eetly•related to their occupational qualifications and 1*P. x, il picture theater. Assuming without agreeing that this.* 1 i ;;#y;therefore be reasonably invoked to bar them from $, . _,4; :. � aiTicing their professions. [Citations omitted.]V 1R�4 we know of no historical or rational,basis for the 4pro009! ,:wis. contended however that at least as to crimes 1 '..+ tion that tYie wider the public which a commun,,, vowing obscenity, there is a reasonable relationship • . .; ;: ; reaches, the greater the power of the censor to rest'ri i; t iikri conviction of such crimes and the operation of a , 1. `cl-!? The notion that ideas should not be widely disseminated fl. 1�r�k`s'tore.-Accordingly, it is urged that the commission R zw ,(sr,'k ,f3 f iu�ee• 7. s k U ' krt . { (1F4,} probably acceptable in a totalitarian,society, but it;�Yia�•�'• ►r' • lly denied petitioners application for a license on : ., - , i"'; place in one which bases its system upon the belief;tl& '. tJ?asis of his conviction for violating Penal Code sec- ,► ',6,:`•1.!' li 0 f' 11;2. This contention cannot stand in the face of the `t' { • .,. informed and enlightened public is necessary if a just ., i . � , t ,<<,' , is4,�:t?iAmendment. . . . [S]ince a denial of a license r' �, responsive government is to be maintained. Af ► �, , ,' ?-` ld prohibit petitioner from engaging in an :activity 1 � In a veryable opinion written b Chief Justice.Wri';1, ,x•'_. ,,i •, .,A# •110,9 p .Y: ,,k - J otected by the First Amendment, it could only be justi- „x k L'`' the California court, in Perrine v. Municipal Court xsz4 c4 .'edfl;even under a narrowlydrawn ordinance if ermit- a i-,- - determined that the licensing act there under considers Z , i gca::person who had been convicted of a crime involv- , ; 4.0.a.. ,i;° obscenit to operate a bookstore constituted a clear , , v � , ,t���.: was void because it failed to provide objective starii� .�: ��:. Y p �€ t, t 3 E',-• present danger of a serious, substantive evil. [Cita- ,E;., i x G i'i for determining eligibility. The court went further arid,eo,R u._ ]. • s omitted.] No such clear and present danger ap- l [':£ f ' i;a,. sidered the question which is before us in this-;-, i s6We cannot assume that because petitioner was convicted of violating Penal Code' section ,311.2, he _ E, i$';; ; whether,a licensing authority may deny a license to exec•�, ? v ii•!1! ' a First Amendment freedom on the ground that the; p',i' �,'1 5,violate it again, or`that if he does so, criminal sanc- � ' 5s °�it1'' cant has previously been convicted of a crime.It said's Y ; tl nsWill not afford an adequate remedy. . rc;' R[A E,� aanterpret the ordinance in this case to permit denial fit A• { a Moreover, we believe that even if the ordinance 'e.11 license because of a past conviction of violating ;r,' ;1' 11. , � i ited its disqualification to applicants who had either.`• , * ro:• 1`Code section 311.2 would do more than create a toLt , convicted of one or more of the 'enumerated crime -C, • �, hard to protected freedoms it. would suppress them #*' ` p "' i to' ether. The enalt for violatin section 311.2 does . f„ , _'. , whose adequately defined coparticipants in the ro4• . ,i f „ 1i1(y • business had been so convicted it.would nevertheless l,: nclude a forfeiturep of First Amendment rights, and i".4-'t, � � ��;� .`, invalid: a.�rtifi,:` ., � 5� �. 4. ! .l t (*risk that criminal sanctions will be insufficient to • UI Even in the absence of First Amendment consid: r I-;r .� tions, an ordinance regulating the right to engaget�inf 42 r'=future violations of that section cannot justify the ; • lawful occupation or business must bear a rational ' ,-, lies attempted forfeiture of those ,rights on the X' p pry,that past violators are unfit to operate bookstores. k '' `1 tionship to a valid governmental purpose. [Cita i�+: u }j ' �` forexcluding p, p '•tn'ote omitted.) 5 Cal. 3d at 663. f.e, .,` � s. ��f' . omitted.] Accordingly, standards� ,,: er ���-� � i 1,", from engaging in such commercial activities mustkt,„ 5� ,ey'rationale of that opinion is in complete harmony '60. some reasonable relation to their qualifications to enga ,- < iR;; 7,1, ;,ourcases dealing with the licensing powers of munici- •41;1-° in those activities. [Citations omitted.] In the presen ,z : :y c;,.• �;,x i (: , • we perceive no reasonable relation between the qualify' +�, ties!and their powers of censorship: We adopt it here- �S$S f- Yu a c,i,11 i • 4;1, -.• - ,-':' • :„1., . r i'' SEATTLE v. BITTNER [Jan;197,9+ • 'f Jan:1973] SEATTLE v. BITTNER 761 ',r ! ', t0 1;4,- r. �;;.1I1; 760 :. gfr,," 81 Wn.2d 747,505 P.2d 126 '�` 81 Wn.2d 747,505 P.2d 126 '`,, ; .� with and hold, as did that court, that a municipality.may. z see:little relationship, however, between an ordinance li- 4• h� ; ; glicensing pictureJ t' ��-V,1 not use its power to license theaters as a tool of blanket,� 'censin bookstores and one a motion thea- • K:.4 censorship, as was done in this case. 'If'`':. ler: Thus, I find inapplicable the court's conclusion from ��sK; [6] The ordinance being unconstitutional upon its face. 1.7.Perrine v. Municipal Court, 5 Cal. 3d 656, 488 P.2d 648, 97 .' -.` .; C;• al. R tr. 320 1971 that, because it is unconstitutional to 4= the respondents committed no crime in operating their mo : ,; p ( ), t, .i;; picture license bookstores in California, it is likewise unconstitu- .fry �:; ., tion theaters without havingfirst obtained the li �� � '' ;.,;, : • • ,r censer required under its terms. 11,i •- 'Itional to license motion picture theaters in Washington. a s { it - tit r;, : ;;Unlike bookstores, theaters of one kind or another," " The judgments are affirmed. 41 ` ` : l Nether of the legitimate stage, vaudeville, variety, or cir- , r i HAMILTON, STAFFORD, WRIGHT, and UTTER, ,�,+,• ,l ,-, ..�1',� r , FINLEY, ,,���K • ' -,us;have been subject to regulation and licensing virtually S concur. ,' ��, • �sirice colonial times in this country. The distinctions be- �- ' of t'; ' „ .;i :, FINLEY, J. (concurring)—As I read the majority opinlom ..;,t�,Veen bookstores per se and motion picture theaters per se, is • • :_:' it clearly points out that the instant case does not invo1 eY and the business of operating either, are in law so clear and t � 'f"' efforts of the tit to roscribe or enforce appropriateyt :definitive that no court should have much difficulty in rec- fa,.,if fit„ any Y P 11, z.:';I fire, 7• ognizing them. And the distinction between an ordinance, 1'4•• ; licensing standards for theatres regarding sanitation ;14 iil, ;• structural or other hazards affecting the safety and health;=, such as the one 'which the court now voids, and one pur- ' ';;' of members of the public who patronize such places. Stan-ryt ',, porting to demand a license of an innocent bookseller • 'l ti,v�" dards of this genre are well within the ambit of municipal- should be equally clear when it comes to legislation enacted .' tit;:' police power. Unquestionably such standards have been"--; ,• under the police power to protect the public from danger ;,y„ „: : q ' and would be sustained and even encouraged by this court'7, l'„and obviate the hazards of fire, flood, contamination, strut- +,, #�K.,., as an exercise of the police power most appropriately in,the� �t�iiral collapse, air pollution, traffic congestion, crime and ,°�`��'• ` `i(,, public interest. The regulation in this case has a distinctly:F, r exposure to obscenity and pornography. Accordingly, I find i!i; # i ..1'sx different complexion, or purpose and object. Thus ;the': y Yiiacceptable the. court's syllogism derived from Perrine '1 i �i Yt, hat, because a city ordinance purporting to license book- �f. '* ;. alarms expressed by the dissent as, to health and safet y ; :{ a 1i,,.I v' � ; 4 A"., i standards and the citation of case and other authorities; " ',stores is unconstitutional as abridging freedom of speech, so, :It '4" 1� support of such standards all seem to be somewhat beside,, {oo is one licensing motion picture shows, massage parlors, ,-).. r.,. 7 w[ d' particulara . ,Cabarets, pool halls and other similar enterprises where �:{ •F•- i1144, the point to say the least. For these reasons Sill ' =.r 1,!1. therein, g . =`speech is singularly free and untrammelled. q.:1 :,i, for other reasons well stated, I have si• , 4i,-,d . .,,"`i ; .04' ('; fully concur in the majority opinion. , [�- q Theaters are but one of many kinds of businesses sub- i;hri' i�4 ' ' ; ected to this articular licensin measure; the ordinance ,,; .. " '` qI4, STAFFORD, J., cOriCUTS with FINLEY,J. p g :c`.13 . 1''1 '' 0.: .[q 1`.`'ludes massage parlors, bowling alleys drive-in theaters • :!' HALE, C.J. (di'ssenting)—Rarely has it been recorded ;�'oolrooms public public dance halls `'� ti ',-:,.' is, pcabarets, bathhouses, .,': ..; j, 1,,,.': that anyone mistook a bookstore for a movie house. That;is,`, Arid the like. 2 Seattle Code § 10.02.100. 'It is a licensing �Ht' __ �_.. not until now. Apparently in contemplating the torte x ,�� ; ? ; • measure having roots in the long-held legislative view that ''- ` ,1(14':. cultural scene where some bookstores are known to sell;.", ;''?. .=:a i owe houses, theaters, pool halls, cabarets, bowling alleys, ; ,•. • '� �4`, show both movies and books, the court reached what tome; ,.;";;,. assage parlors and similar callings of public invitation are ;� ;i;, is a curious conclusion that, if bookstores cannot constitu% • :�,n „; s ,���i earticularly susceptible to public hazard. 1,' : r fi J'�((v '- tionally be: licensed, neither can motion picture theaters ` :,r: t'I ti,i.r. 1 n L�.: r ,„ 4 t c'ti .,•!:4 � . t ,,,:.: III t„., , if r, �2 SEATTLE "d 'A, • F ,;' v. BITTNER �Jyn'�81a +Hn�1973] SEATTLE v. BITTNER 763 .�,r ' dd'7'f'' 81 Wn.2d 747,505 P.2d 126 �""r' 81 Wn.2d 747,505 P.2d 126 ''+"',ff'r !q. If a cityhas a reasonable basis to assume that:ithe ,ppli uig. Although the judiciary may not share these legis- , ;. enterprises may,y�;. rp ' es because of their peculiar nature, adversely •• 1 ve judgments, this presents no reason in law whatever �4fF. �' affect the public peace, health, safety, welfare and morals. I they are not within the legislative authority's comp- }AOiq' f think the constitutions allow it to. impose reasonable con.' ; ce,to make them. The legislative authorityhas reason- ::,;'. `I tions for the`'issuance of a theater or similar license`a4iY ' i ble;grounds to reach these conclusions and thus make the il.ry. make its issuance or continuance dependent on good;co •`licensing of theaters constitutional where, for example, the t ' 110- duct and good moral character. i r �L�,` ' -ewe reasons might not obtain for licensing bookstores, 444 ;. 1 A motion picturep beery stores, delicatessens and the like. Greenberg v. '; a;,4 , house does resent unusual haza•�• „ ; Y which warrant licensing; it is a business which from'tl' "estern Turf Ass'n, 148 Cal. 126, 82 P. 684 (1905), aff'd, 1,, ;' t• •, to time compresses large crowds into a comparatively`s 14,U.S. 359, 51 L. Ed. 520, 27 S. Ct. 384 1907 . �r ' ,i;,, space; it attracts large groups of people eri masse;to' : 'The right of the state or city to regulate, supervise and `'+ „4: central point, and frequently keeps them there at later , excise control over theaters and places of public amuse- `,';� unusual •hours in close proximity to the,theater's premiss, t 1t is universally recognized and until this case not ,)r'I `'y,:, It is a business operated for profit that necessarily exposj�; 1ubted. Greenberg v. Western Turf Ass'n, supra Holly- 4ia{ , gi iI . thepublic to aggravated �, r�: E.. g( i ,, risks from fire, explosion, st uq, • �oodTheatre Corp. v. Indianapolis, 218 Ind. 556, 34 N.E.2d ,Li tural defects, faulty wiring, ventilation and' plumbing f``�' 2 �1941); People v. Weller, 237 N.Y. 316, 143 N.E. 205, 38 ;i '4, ,kli? extraordinary traffic hazards—not to mention the action f�. (1924), aj 'd, 268 U.S. 319, 69 L. Ed. 978, 45 S. i � L.R. 613 ?,;,., criminals who seek out crowds. And, like cabarets, tave•- <' •,.� - 4 '' {._{; ii 56 (1925). See 4 Am. Jur. 2d Amusements and Exhibi- ;, , ,.,•.,&I and other places of public entertainment, it may, b .,Fein- § 12 (1962). Accordingly, the capacity to license and :,;� � 3s,;LL ploying sound amplification systems, become a .source.o egulate theaters and places of public amusement as a tom- r ? , �� .�,tnent.of thepolice o �:; noise and commotion at late and unusual hours. The le power is perhaps even more deeply :4a;,fir, 1d; ' n�4 is lative authority is justified in assuming, therefore th ' 'a rooted in our law than for many other types of businesses. jik, � � fib .�iri} k motion picture house requires more inspection services t. <The reasons, well annotated, are in part set forth in 4 Am. , 'i i {„ policingpublicsafety r 2d Amusements and Exhibitions § 12 ) „ olicin in the interest of and welfare;th: (1962 , as fol- q'1;:i �' does a bookstore grocery "��'' :'„ , , store, department store, rea. bWs: 1:1 T ' tate office and the like and in requiring that it be licensed;.• : t.,,4„While the business or occupation of conducting a thea- The ; Y;. Vta,y e: Vi iz,: power to regulate and prescribe licensing in,t e ? :,,ter or public amusement is not, in a strictlylegal sense, ,'z public interest thus rests on the traditional view that:its ' {'such a ublic utility or so charged with a public interest )! 4.11tt.; good for society to have businesses of this sort in the.hand ";:to deprive the owner or proprietor of his legal right to ,< <, V ' control and operate it as a private business, the right of u{ 4. �r of noncriminals and persons of reasonablygood moral ch: " ��`,, "':;the state either directly, or through a political subdivi- fr ., �,,141 acter; that procurers, pimps, racketeers and other cri a.iori usuallya municipal corporation, to regulate, control ;; t —reformed or active—are not apt to have sufficient de��.•-: f,;andHsupervise places of public amusement under the o- 04,-. y,�y , ',. tion to the public welfare and safetyin the o 'y "• ;'';'lice Dower of te state i universally recognized. Indeed, V.!'' ;kg.', Aeration pf .,'-F,.greater discretion is permissible in the regulation of pub-,` , motion picture theater; that good citizens more likely h 0 •. "�� Y 1 ,, • ''Ilic amusements. than in the case of ordinary or useful ;, '1' r) bad citizens and criminals will abide by the laws desig,,._. � �,� • "„;trades and occupations, both because they are liable to ;';'���•:for thepublic protection and spend part of their profits- . '";degenerate into nuisances and because they require more ,`,', , •,;: ks' public safety; that hip good citizens will not: leave the pub ;" police surveillance and police service. Further, these r {f, ry),;; safetyexclusivelydependent � • a?;.: , upon rigorous inspectioi .', tendencies may justify a greater degree of control in ,, }S "L ff „ ti r,,c Z• „2#4 • r ,. . ,, , " _ 44`F't 1 _: ,.,,, „ ,.,„, ,,,,.,..„..t -„y.,:,,;, •. ,,,,,,,,,, . . 14',' k. s j 764 SEATTLE v. BITTNER [Jan.19�3..t•, .6p;,1973] SEATTLE v. BITTNER 765 u , .T.3 1?;• ' 81 Wn.2d 747;505 P.2d 126 f; ,. 81 Wn.2d 747,505 P.2d 126 ,{ , °,tiV :�. :t.,V regulating certain particular public amusements and!ex 1ibvie being shown in particular or other subjects in gen- 31: 15'' placesp eral.: As a condition of his contract of admission to the " -,$ , hibitions than others; certain of public' amuse ,iiu#, ment, because of their tendency to promote idleness,did , �l�eater, the motion picture theater proprietor thus directly " ` .it,i,"r,, order, or immorality, or otherwise to subvert the public .i `V ,=�, welfare, are commonly regarded by-the courts as pecul» , imposes marked restrictions on his customers' freedom of ,;; a N iarly within the power of the state or its duly empower•• . 43eech. Talking during the show is ordinarily deemed not . 4,%i'iE subdivisions to suppress or prohibit.. : , ..only a nuisance to others but subjects the annoying patron .� k III ,1111. :t�'lawful eviction by the proprietor. r 1 t, (Italics mine.) �. :Pitt ei ��. ,�Tf 'movie patrons insist on exercising their freedom of ,"1; i' -On the question of free speech, it is` difficult .to disce ' , w ,a, _{Py. .eech•to thepoint where it denies otherpatrons of the k i,1 operating picture - }'?': r. �: ��til where o ratin a motion theater or a cabaret�'o � ,, , s '_r�', other theaters, for that matter, differs materiallyfrorri,t :''• ,!u.et enjoyment of the show, they may be evicted from the �;Mt ,n. r ' i :` Ifni . The operator of a movie house or other place of `s other licensed businesses where speech is the medium ox-; : .. ;= „ , �, public amusement is under a duty to maintain proper quiet z ' . f ,"; communication. Freedom of speech seems indigenous•t; 4 .1. ..,,. a � Y;'`' `s��4 rid"'good order (Edwards v. HollywoodCanteen, 27 Cal. 2d l nl;�,t most of these business operations, and a theater is but•o e „ g y ,9c'�: ' ki• of many forms of commerce or business subject to licei �, 62; 167 P.2d 729 (1946)), and may use reasonable force to '; '.i 1 ' ' ect one who refuses to leave and ersists in noise and ` '` i�. sing, regulation and inspection where speech is an essenti,� • Q.r� p y`;• ;i, ,isorder. Cummins v. St. Louis Amusement Co., 147 S.W.2d • t'rt ' : <, component of business procedure. Schine Chain Theatregh �. ti Y F' Inc. v. United States, 334 U.S. 110, 92 L. Ed. 1245, 68 Sr tc t I O-(Mo. App. 1941), Planchard v. Klaw & Erlanger New .F Q"leans Theatres Co., 166 La. 235, 117 So. 132, 60 A.L.R. . '"a'"' rF�'y, b`. 947 (1948); Binderup v. Pathe Exch., Inc., 263 U.S. 29�'.. x t�.';�•• Or G86 (1928). Anyone authorized by law to exercise such 68 L. Ed. 308, 44 S. Ct. 96 (1923). Accordingly, the emplo h', iI .' rers should, in the ublic interest, be subject to licen- fundamentala' i ,,;!3 ment of speech for the conveyance of ideas is no more; c�. pJ ,. + t : to operating a picture show business than its.: �g� , ; to innumerable other kinds of businesses. On that point; his court's opinion declaring void the licensing of thea- ,f 1 , �� I should be noted the City of Seattle does not in this.44', ),•.• sA.'-will directly curtail a reasonable and legitimate capac- 44 ,, • ; E1°' nance u ort to recensor an articular film nor impos,s i.for municipal self-government. The power of a state or ;," `';' any restriction on the communicating of any ideas. Th9 • S htinicipal subdivisions to supervise theaters and impose ,} Willi'. licensing ordinance purports no more than the exercise" . . •asonable conditions upon the right to engage in some ,t 1.t.ni .the city's constitutional.powers to require-applicants fore`. all}iigs, businesses or professions has since colonial times ;.; _�;. € till'' license to show that they are of reasonably good •mor: • eri an attribute of sovereignty and an indispensable in- ,i ,(L character and whatever criminal career they may have.had • redient of the general police power to provide for the r4,, Al_' is in the substantial past. , I. ,`ger}eral welfare and preserve and foster the public peace, 0-0- ; !. • ,ter. ;:. '`'° y""Pii i` In considering freedom of speech-as it applies to,'the: health, safety and morals. And none of the licensing provi- �5,i' , •�: ;iI operation of a theater, one has difficulty in finding where i, � o�s, if they are reasonably designed to attain a constitu- �' . 'r,, k • is anywhere more directlyabridged than b the o erator ; - hall ermissible end and do not exact rohibitive andiljli:' • of,motion icture theaters themselves'as a matter of roti onfiscatory fees, have been deemed a trespass on the free- . F f.a '��;;; tine business procedure. The audience is not only invite do of speech regardless of the quantum of free speech .�: Wt. :: not to'but actually.prohibited from audibly communicating a ployed in operating the licensed business. their ideas to one another.during the.show either aboutktli `, `{+Thus,•this court has upheld a statute which provides for " rr ,r. j1 ." ;fry "_tQ:n,: . ' ti il s'i', 0 !',-,4t ,::i::4,..,4 Ill . 1,-, ,,, , 0,,:,, ,,‘,._ . ,:<iie; , :IAN 766 SEATTLE v. BITTNER [Jarr.i38 '1973] SEATTLE v. BITTNER 767 ,, rp, , :, 81 Wn.2d 747,505 P.2d 126 j , r 81 Wn.2d 747,505 P.2d 126 c� ri '«1 'the licensing and regulation of barbers and barbersh9I protection, or of freedom of speech when it requires ;.flit i' (State v. Sharpless, 31 Wash. 191, 71 P. 737, 96 Am, " �' , t f rn to disclose whether they have ever been convicted of + 1°' Rep. 893 (1903)), and.one should assume it would stickkk`i k'`4'Yiolating any laws relating to intoxicating liquor, gam- ;4H, i.3. •. that ruling despite common knowledge that nowhere ori; ', , g;public.. morality, and decency or fraud, or (2) sale, ''" s'i face of the American scene is speech more freely excerikv..• t`ei:possession, or business concerning narcotic drugs. Nor w,�l . �. t than in such places. Again, a city ordinance require g y L:shthe city exceeded its police power in requiring the •.,, z E license for billiard and pool tables, and requiring an app) Op'li�c'ant for a license to state in, writing whether the ,�,,� cation for the license to be filed with the city comptro -s ,r i'`u €{r (,t "mises upon which the licensed business will be con- g, andpassed on bya license committee and the citycountr« . G oted complies with the buildingcode and the ordinances 'F Ar„is • P'''. was held good in State ex rel.Sayles v. Superior Court, 2Q 4s �R Court:; sting to health and sanitation, and to specify the size of �.i� �� l'' `, Wash. 183, 206 P. 966 (1922), Probably no greater bast} a'44premises and number of pool and billiard tables, thea- s ,,•+ . ti 1 1,' of free speech can be found in the countrythan ink • ''� k p 1 i seats and number of bowling alleys; nor to require r � nation's pool halls, yet pool hall licensing was sustaui;Iosure of the identity of each person sharing in the ,3 ° again in State ex rel. Reedhead v. Olympia, 122 Wash 12• . , l. s, tofi'ts.and who are citizens of the United States and those •;ii ;• lif '; 210 P. 371 (1922); and the same rule has been applied awifI� o are not citizens. These demands for information seem .1. ,I ! respect to the licensing of dance halls. Bungalow Amiss, 1"me'to ask no.more than the city has a right to. ask.in i,'f. 1, 11, . ;,!;i;1;' ment Co. v. Seattle, 148 Wash. 485, 269 P. 1043, 60 Al" t: ievin a legitimate legislative end byreasonable means. >'�':{•'. ei I:I: g g g 1, , : , 166 (1928). Plumbers are another example. A journey rn° } "a ' ,i E,°1. �. Ile legislative purpose of the licensing law thus becomes • • rji{. plumber in this country enjoys a reputation for frees•t:4 ; r r .te::clear in the provision requiring the chief of police to ' • i colorful speech but ordinances requiring him to take ex-"! I ,e g :;: sti ate the truth of the information set forth in the r 't i;; inations and demonstrate competency to obtain a lice ° �°`�:,; , �,i' ,-Oltcation and to give his reasons to the city council for ,,, � ;s; were upheld as being within the reasonable exercise"of= '0, T ,;<,'. .l I,.: ; wit". Z, atever objections he may have to the granting or re- ? :T . ii: ',fit, police power. Tacoma v. Fox, 158 Wash. 325, 290 P:; 19 ,4 awa1 of a license and in the provision that �1'1'F" (1930)• Lund v. Bruflat, 159 Wash. 89, 292 P. 112 (1934.:' ��'•�' a = ':;it: . 4:11•Yx , LIf the council is' satisfied that the statements in the appli- §ig ' ' l Accordingly, one can find no abrogation of freedoinrot ,cation are true, �r , , �,�� lea_, � that the applicant and all persons con- tkh r. gill,j speech whatever within the context of the First Ames;1, { ected with the business are of good character and that r fy n . *k !Ei ment in 2 Seattle Code § 10.02.100, which requires lice s.1 t'ihe-premises in which the activity sought to be licensed �_${;+ �' r'' ;' .ill be conducted comply with the requirements of all e E. for the operation of bowling alleys, drive-in theaters : Q s - :. : ,. pY q ii i'��''�; ters coffee houses, billiard and pool tables, cabaretsari ordinances relating to buildings, fire, health and sanita- ':,i< <ti, .; ,r I'd I, 'l r�= iron° and that such premises are situated in a place where '•,Y; >.' ,,.d-.,yi`!.'j1.. sage parlors, public bathhouses and public dance halls ! ,-'? i.�., h businesses are not prohibited by the Zoning Ordi- I'�� rice or other law and that all other requirements and other kinds of businesses enumerated in that section,,, .. , • =-. ?,; .7#red' 3`a,< ,' r,i,;zk speech is an indigenous concomitant of each of these sli , .,gnditions of this chapter relating to the business for , n"'°g ;i, nesses; it is as essential to one as it is to the other:`Thl ; Which the license is sought have been met; it shall by {� , >Anu4 ' r ;I ', these businesses flourish in Seattle demonstrates that i, resolution direct the city comptroller to issue such license ,Iu ,4"., ,1j it t ilk freedom of speech amendments yet reign there. r,, ` f, t ,.; l. Nor do.I think that the City of Seattle is depriving -tto far as licensing and due process in granting a license ,r iv; s� .�; applicants for a license either of due process of law,`on concerned, this court passed squarely-upon the issues of • ^, i r i�it4# • ` " III ,„ „.,. i fix, . t , SEATTLE v. BITTNER [Jan„d9 t' W [f3�rat, 768 973] SEATTLE V. BITTNER , ., s?aI`i . 81 Wn.2d 747,505 P.2d 126 ky-;; • 81 Wn.2d 747,505 P.2d 126 769 'y14' A'' the instant case in State ex rel. Pitkanen v. Zittel,.77W = ,` 1 '� •• life...And the same opportunity is available to every :!` 41: 366, 462 P.2d 944 1969 a unanimous en bane: de t ',,,,.,,.. l' ( )' ca t for.such a license whether the refusal has,been • • It..i denying a mandamus to compel the issuance. of a spec 1 11. , apt, • '' f •..on prior convictions or substantial evidence of crimi- ` Mk policeman's..license. We upheld the constitutionalityi Q!t a% yr t+,i ,': city ordinance remarkably similar to .the one here,-`'• • - etivity falling short of actual conviction. •"', r t ' •eclaring the freedom of speech as a basis for ro- t lil ;, tinned where the chief of police had refused to gr t`, p MU s ecial license because the chief had coney; ,, "�'i ,the licensing of motion picture theaters, the court • ,_?,,"it 91 p policeman's .r, ,,i; es' the mediurXm- for the message, ri'`+ 4f,,,;t that three arrests, without any conviction, indicated;a,o 4 �,,,;,w g , the hall for the 1'• e,I:the building and furnishings for the film. Plaintiffs ')' T��,f a: ofgood moral character. The court said, at page 367: 1��1,..,. ,,:; g . . , been convicted of publicly showing obscene movies for ' y�,,; He [the applicant] also urges that the ordinancep , • to� ;t r�" t�� viding for the issuance of licenses in the discretion of ,i '"M QY►tx under the city ordinance, this established .two 1 `;is city manager is unconstitutional because no Stan S, ;' (1) timely "'' ' dslfor denial of a license, conviction of an ! 'r.: P •ws i 1 rfl g ' are provided. Standards are provided, however, in set , =eanvolvin moral turpitude, and (2) that- within the 1r,f.t "'�,,,i 7.10.030 of the Tacoma City Ordinance, which req,, ,, g of the licensing law, they were of bad moral char- a;�� i,e .. 'v!'Li7�± � _ ` that the applicant must show good character; •co ;. .• j E s� ' tency, and integrity, must furnish character refereri - s!,,, ` ,constitution—particularly the First Amendment pro- 1'R- Li, y',i and a bond, and must list any previous policelr . r 11 { 1,AL Where the activity to be licensed is one in whiff Li iir.gftlor freedom of speech—does not prevent a state or : ., . / ?k,���° public •has a legitimate interest which requires its;re�. ► .�^, tyrfrom seeing to it that certain businesses and call- ' fl,,,i,;, 'Vi' .• ��,,�i tion, the vesting of discretion in an executive or a• ;ir ��:>�deemed by the legislative branch to be especially sen- ••�� 041 ;; • trative officer to determine whether qualifications=oi�' „r' �.�e_in;the area of public peace, health, safety and morals '..`,` �' ; �,,t; �: sort exist is within the police power. Tarver vj _� ,-) •t;operated by unrehabilitated felons or others of bad 1:i;C:• i`;'ii,,' Comm'n o f Bremerton, 72 Wn.2d, 726,. 435 P2'•' �' ;: :.p ,• character. Thus, publicpolicy, 1,;•,:: . �'"���'`I�'� ; (1967). If the officer makes an arbitrary or capri�,;,� ' �=�. it is sound olic as well as �,, , ':�' _(� I the Constitutions, I think for the cityto take all " f' , Ae'. decision, that decision is subject to review by the'co - ., . , ,;; 5:1 r;f in an action such as this. This contention of the appe ; : ;,,+;};able"steps available to see to it that theaters, pool r r�$ ", • is likewise without merit. _ }fowling alleys, cabarets, massage parlors, pawnshops, ?j 't- As in Pitkanen, the ordinance now before the�,.O i ', a,detective agencies, and the like, do not fall into the ; ` t''' "s e ;;; of pimps and prostitutes, thugs.and racketeers and -w!Ail:: makes ample provision for due process to challenge �, , ' a7:3i,` 9bilitated felons—and all of the other' diverse' anddenial of a license and; similarly, upon showingof, ;'�.: ;,f? ,=, Malefactors of a bigeit of whom it can be shown ' '4., ° ",'-' behavior, fora waiver of 5 of the 10.year interval fol, )_,; a 4 . y r _. r`i' ;}cf•bad moral character. Licensinglaws, while theydo •`'i• ' . . felony conviction. � . Grantee such a result, are, nevertheless, only one of a #i "xz,,,,, If the chief of police, for-example, recommends ag; �� • '�x j '`+``' ' the granting of a cabaret or massage parlor licens' 't�) 11 =gal avenues open to provide it. • `"- u i +,.,. �' 'V; Quid•therefore, reverse. t .:.l;r notorious pimp or prostitute, racketeer or other cr ' the applicant has ample opportunity under the ordinal G. ' r ER,J„ concurs with HALE, C.J. ' '3i challenge the recommendation of the chief of pollee,f , Jsl • 141 demonstrate that 'it is ill-founded, and to show tha 4,::: . iiR , applicant not onlyhas never been convicted of such L ,t'r •' ' offense but additionally has led an honest, upright;' . ' r '' r ' 1 ij 1. ,. . i 434 INGRICH v.UNIGARD SECURITY INS. Mar. 1990 ;,t Mar.1990 ADULT ENTERTAINMENT v.PIERCE CY. 435 57 Wn.App.424,788 P.2d 1096 57'Wn.App.435,788 P.2d 1102 ; ' . [No.!12336-3-II: Division.Two. March 29, 1990.] t:. . - - { based on the evidence available to it, in concluding its :?\,; i, insured had committed arson. ADULT ENTERTAINMENT CENTER, INC.) ET AL, Appellants, v. [7] Here, by contrast, the: dispute involved interpreta- ";: ; PIERCE COUNTY, ET AL, Respondents. tion of the language of the insurance policy. Interpretation ;' 1 of insurance policies is a matter of law. Transcontinental f [1] Constitutional Law —Freedom of Speech — Time, Place, . ;, and Manner Restrictions = Test. Time, place, and manner Ins. Co. v. Washington Pub. Utils. Dists.' Util. Sys., 111 restrictions'on speech activities are valid if they are content neu- Wn.2d 452, 456, 760 P.2d 337 (1988). As there was no gen- tral, narrowly tailored to serve a compelling state interest, and uine issue as to a material fact in this case, the court prop- 4 , • . ,leave ample alternative channels of communication.. erly granted summary judgment. CR 56(c); Wilson u. • [2] Constitutional Law -Freedom of Speech — Time, Place, . Steinbach, supra; Yakima Fruit & Cold Storage Co. v. , . and Manner Restrictions — State Interest — Relation- Central Heating & Plumbing Co. supra. ship. A governmental restriction of speech activities,must bear a Mr. Gingrich argues Unigard's denial of coverage was ,, reasonable relation to the achievement of a compelling,i.e., funda- ' s:: mental, state interest. The necessity for the restriction need not, , based on its conclusion the Gingriches had made a gift of :•! ? however,•be Iproved absolutely. the vehicle to Leslie III, a conclusion for which there was no t,; [3] Constitutional Law —Freedom of Speech—Time,Place, • factual support in the record or in Unigard's files. However, '>',.,,,, and Manner Restrictions'— State Interest — Public Unigard's position consistently has been that because Leslie , : Health and Safety. For purposes of determining the validity of III had title to the pickup, he was the owner for purposes of , >•'; a governmental restriction of speech activities, preservation of the ,r_',1,- III the policy exclusions. This was a legal dispute involving f, " public health and safety constitutes a fundamental purpose of interpretation of the policy language. The court properly ? local government. ; made its determination on summary judgment. [4]• Statutes - Validity — Motives of Legislators. The per- . ; The court's decision is fully justified. Unigard's position -"`' i, sonal motives of members of a legislative body do not provide a was not unreasonable, frivolous. or untenable. See Trans- ;, basis for invalidating an otherwise constitutional statute: continental Ins. Co., at 470-71 (citing Felice v. St. Paul [5] Constitutional Law — Right to Privacy — Interests Pro- Fire & Marine Ins. Co., 42 Wn._App. 352, 361, 711 P.2d ; ,,, tected —!Autonomy — Scope. Legislation intrudes on the 1066 (1985), review denied, 105 Wn2d 1014 (1986)). autonomyinterest protected bythe constitutional right to privacy ,; :a only if"it affects the individual's ability to make crucial decisions `'i is We affirm the decision of the trial court. ;° concerningmatters relatingto marriage, procreation, contrace ,;, ! g , P ,r, • , . . tion, family relations, and child rearing and education. The right GREEN, A.C.J., and SHIELDS, J., concur. ' �,:iv,;; • to view sexually explicit videotapes does not constitute such a pro- 1 :'c:''4 z tected right. ..:1 1.; i.,: x:� ;; [6] Constitutional Law — Right to Privacy — Interests Pro- . ., <:'•" .:k',4Sr'i, ._ Y`��;M ,,;,;,. tected —1 Confidentiality — Public Sexual Activity. The , 'n";:J^,^+:. confidentiality interest protected by the constitutional right to z *,,i 4,:,,,•;;; privacy does not include the right to engage in sexual activity in a ;:° :,4,f,r public,place. r;,r' ' •,r - i . . ' - 1 , ',.Y'•C::::' ' - L:.'k!,7'.;1-•.,'436 , 0 ADULT ENTERTAINMENT v.PIERCE CY. Mar. 1990 . Mar.1990 • ADULT ENTERTAINMENT v.PIERCE CY.III 437 57 Wn.App.435,788 P.2d 1102 i 57 Wn.App.435,788 P.2d 1102 [7] Licenses — Constitutionally Protected Activity — Pur- . plaintiffs were not entitled to an:attorney-fee award under pose —Amount Licensing fees for the commercial exhibition of , , 42 U.S.C. § 1988, the court affirms the judgment. f , protected free speech activities must be for the purpose of regula- tion ' .. „ . 1 tion and must be reasonably related to the cost of administering Jack R. Burns and Burns & Hammerly, P.S., for appel- and; • enforcing the regulatibn. - lants. ''•' " 31-;[8]I Judgment — Summary Judgment — Burden on Nonmov- • John W. Ladenburg,;,Prosecuting Attorney, and Chris :ing Party — Averment of Specific'Facts — Necessity. To W , ii', 3 avoid a summary judgment, the nonmoving party must present ntnall; Senior: Appellate Deputy, for. respon- , Quinn-Br specific facts demonstrating the existence of a genuine issue of fact . dents. :..7. for trial. ' ' , i— : , [9] Licenses — Constitutionally Protected Activity — Appli- -; PETRICH, JThis case represents a challenge to the con- - 1,; '1:-•,: :-., , cation — Timeliness of Decision. A license to engage in con- : stitutionality of a Pierce County ordinance requiring the :: • .ri,,,., stitutionally protected activity must be issued or denied within a . licensing of businesses that offer customers the opportunity period that is reasonably brief under the circumstances. to view selected videos via panoram machines. The appel- 1 001 Statutes — Validity — Standing To Challenge — Preju- , lants are Adult Entertainment Center, Inc.:(AEC), Eldoro ":,-. ,::,f•:.:d dice — Necessity. A court will not decide the constitutionality 1Distributing, Inc.,s and, Preview Books, Inc., corporations , .. ' '.;•:: 5 of a procedure that did not adversely affect the party claiming the , that operate'businesses dealing in various forms:of. . . 1 sex- procedure: is invalid. . , related entertainment, and ,Gerald Holt, president and 0.11 'Civil Rights — Deprivation — Attorney Fees — Prevail- 7 majority,shareholder of AEC. All of appellants' businesses ,, , ',=•'' --ing Party—What Constitutes.A plaintiff in an action seeking : provide panoram machines which, for a fee, play videotapes damages for a civil rights violation is not entitled to an attorney fee award under 42 U.S.C. § 1988 when the only claim on which exhibiting explicit,sexual activity. The machines are located ., .. .. ,, the plaintiff prevails is not significant in relation to other claims in booths furnished with full-length and sometimes lock- - .-' - ,,. made and does not achieve some of the benefits the plaintiff able doors. i , t sought in bringing the action. ' Effective;August 26, 1986, the Pierce County Council : 1 - 1., S' established licensing provisions for panorams, adding chap- Nature of Action: Action challenging the constitution- , ter 5.16 to the county code. This ordinance requires prem- s. ality of a county ordinance that required licenses for busi- , :- , , . 1 ises, owner's,land device licenses, and sets fees of $500 per nesses displaying sexually explicit videotapes on panoram ' year for the premises license, $800 per year for the owner's '7. machines. license, and:$30 per year for-each panoram device. In addi- - Superior Court The Superior Court for Pierce County, tion, it provides for inspections of the premises, establishes No. 86-2-07697-8, Robert H. Peterson, J., on October 14, : :. qualifications for.licensees, including criteria which permit ; 1988,' granted a summary judgment upholding the ordi- denial based on criminal records, arid requires that the nonce, except' for the prohibition against convicted felons • premises conform to certain specifications, concerning the obtaining a license. level of illumination and the visibility of panoram booth Court of Appeals: Holding that the open booth - i, . interiors: -'requirement does not violate the plaintiffs' free speech • -. AEC, Holt ' Eldoro ,and Preview initiated this suit on rights, that the license fees are reasonably related to the August 26, .1986, challenging the constitutionality of the . ... . cost of administering the ordinance, that the 30-day period entire ordinance and seeking a preliminary injunction The for deciding a license application is valid, and that the . trial court denied the motion for injunction and decided the •• 4- ,'' liPlls'` \'''''S..'• f' ,'eil',i?1,-;`i, - _ ' 438 DULT ENTERTAINMENT v.PIERCE CY. Mar. 1990 ,?« Mar.1990: ADULT ENTERTAINMENT v.PIERCE CY. 439 57 Wn.App.435,788 P.2d 1102 ;fit;`;;` 57 Wn.App.435,788 P.2d 1102 ''-' : ; involve!'no subject• matter restraint.- See•Bitts, Inc: v. I. 6 substantive issues via summary judgment. It found all pro- _:;,i_.;;; . . : visions of the code to be constitutional, except section 5.16- ''` '1':' Seattle;'.86 Wn.2d 395, 399, 544 P.2d 1242 (1976). To con- j • .090(A)(3), pertaining to the restrictions on. licenses for ;( t stitute a compelling•interest, the purpose must be a,funda- convicted felons: . • ;',- mental one and the legislation must bear a reasonable ';" relation ito the, achievement of the purpose. See Bates v. Holt and the three corporations appeal raising issues � ��"�<� p p pertaining to the constitutionality of the open booth 'i..ji{ Little Rock, 361 U.S. 516, 4 L. Ed. 2d 480, 486-87, 80 S. Ct. • i 412 (1960). However, the necessityfor the legislation need requirement, the reasonableness of the license fees, and the g adequacy of the ordinance's procedural safeguards. They not be proven absolutely. Governments have broad latitude also contend that the trial court should have awarded them in experimenting with possible solutions to problems of attorney's fees pursuant to 42 U.S.C.- § 1983 and § 1988 vital local concern. Whalen v. Roe, 429 U.S: 589, 51 L..Ed. because they were prevailing parties. We affirm the trial 2d 64, 72-73, 97 S. Ct. 869 (1977). See also Paris Adult �; court's decision and lift the temporary stay of enforcement Theatre:I v. Seaton, 413 U.S. 49, 37 L. Ed. 2d 446, 459, 93 '! 1 S. Ct. 2628'(1973), in which the court held that although li ! ''' previously granted by this court. g'' Appellants first contend that the open booth requirement '-,-!A1!;, there -was no (conclusive proof of a connection between �l j constitutes an impermissible burden on free speech because antisocial behavior and obscene material, the Legislature ;I 1 :' :the County has demonstrated no compelling governmental c`', . could quite reasonably determine that such a connection i 1 interest to be served by the regulation.' We disagree. 'does or might exist; and State v: Smith, 93 Wn.2d 329, 337, 'T.'[1; 2] .Article-1, section 5 of Washington's State Consti- . `• - 610 P.2d 869, ,cent. denied, 449 U.S. 873. (1980); holding • '` ' ` tution; guarantees that "every"person may freely speak, `, x- that the-court'may•not substitute its judgment for that of ;I write and publish on all subjects, being responsible for the the Legislature regarding the necessity of a law. • i; abuse of that right" However,-a government may impose Evidence Material to the County's purpose included afl'i- i reasonable time, place, and manner restrictions upon all • davits from two members of the Pierce County Sheriff's I expression; whether written, oral, or symbolized by con- Department,' stating that deposits of semen observed fre- 11 ' duct: Such restrictions are valid if they are (1) content quently:in the '.panoram,booths'indicated'that sexual.activ- 11 neutral,'(2) narrowly tailored to serve a compelling state ity occurred`•there on a regular basis;.and the deposition I interest, and (3) leave ample alternative channels of com- testimony of Lieutenant Gary Smith, head of the depart- ' munication. Bering v. Share, 106 Wn2d 212, 234, 721 P.2d - ment's special. investigative unit, that masturbation k 918 (1986), cert. dismissed, 479 U.S. 1050 (1987). Regula- occurred often!in the booths, and there was some homosex- tions which pertain only to the arrangement of the interior ual activity as well. Additionally, a number of private citi= • - of''panoram booths and the conditions of the premises zens,' among ''them.• members of the Pierce County . Pornography Task Force, spoke at the public hearing.They s� 'Section 5.16.120(A)of the Pierce County Code states: '' told the•council that there were semen stains on the walls, i 5; .'ft3a'Premises regulations. that floors arid' doorknobs in some booths-were sticky`-with "The Auditor shall not license any panoram premises which do not conform to I I the following requirements,and shall revoke or suspend the license of any pano- what they believed Was semen, that the.booths were some- • I ram premises, and the license of any operator thereof, which do not maintain times occupied by more than one person at a time, and that conformity with the following requirements: they believed some of these patrons were minors. One man .,i;!",A.The interior of every panoram station shall be visible from a continuous I reported that the had been approached twice by persons ;".. :main,,aisle and shall not be obscured by any curtain, door, wall, or other enclo- ' ,),sure:^:' outside the booths who wanted to accompany him inside. ' ;' Mar.1990 ADULT ENTERTAINMENT v.PIERCE CY. 't440 ;ULT ENTERTAINMENT v.PIERCE CY. Mar. 1990 441 57 Wn.App.435,788 P.2d 1102 , , i 57 Wn.App.435,788 P.2d 1102 a _kF ti , He said one man had a handful of quarters and offered to `;.; reasonable determination that it would prevent masturba- t: pay for the videos if he could perform sexual acts on the ` tion and its related unsanitary conditions and other activi- € witness, He also said that someone had tried to enter his c':;; ties offensive to decency that demonstrably accompany booth while he was watching the videos. • ;••" furtive- viewings oft sexually explicit materials); Ellwest Appellants did not dispute this evidence, but they pre- Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir. 1982) (similar ordinance upheld for the reasons expressed z stinted the deposition testimony of Jack Jourdan, Director of the Sexually Transmitted Disease Unit of the Tacoma in EWAP, Inc.' v. Los Angeles, infra); EWAP, Inc. v. Los Pierce County Health Department. Jourdan said that Angeles, 97 Cal. App. 3d 179, 158 Cal.. Rptr. 579 (1979) semen is a risk factor, especially for AIDS, and also for (similar ordinance justified by interest in preventing the ; kind of dangerous or unlawful conditions, as well as the v. other other kinds of viral infection, if it is directly contacted; i.e., s;. placed inside a rectum, a mouth, a vagina, or an open health and safety problems, which may be anticipated in a , p:,: wound, On environmental surfaces, it is not a risk factor for picture arcade where the booths are concealed or enclosed). • i" sexually transmitted diseases, he said, because the organ- [3] The preservation of the public health and safety is E' • isms do not survive outside the body for more than a few one of the chief objects of local government. State v. i [' seconds. ' - - Mountain Timber Co., 75 Wash. 581, 586 �;; -87, 135 P..645 ; (1913), aff'd 243 U.S. 219, 61 L. Ed. 685, 37 S. Ct. 260 ! '- :;Because this issue was resolved below by summary judg- 1 t; went, we must view all of this evidence in the light most (1916). It clearly constitutes a fundamental purpose. The favorable to appellants. Hontz v. State, 105 Wn.2d 302, 1 ordinance is also designed to deal with the problems iden- 311, 714 P.2d 1176 (1986). Nevertheless, undisputed evi- , tified. We agree with the'court in Wall Distribs., Inc. V. ;n Newport News,! Va., 782 F.2d at 1170, that the open booth dence showed that more than one person sometimes occu- ; i ; (,F pied"a booth at the same time, that sexual activity was ;; requirement is I the least burdensome means of controlling ,t solicited on the premises and did occur in the booths, and '' ' offensive, dangerous, and illegal activity within the pano- that:such activity created unsanitary conditions. From this ram booths. It does not affect the content of what is shown; u; •evidence, the council could properly infer that the opera- -'� it does not restrict the time of operation or the number of ` tion of the panoram machines presented a health hazard, at booths; .and it does not subject patrons to disruptive i ,, least in those instances in which there was 2—party sexual F: inspections. It does not affect the content of what is shown; activity in the booths, that the conditions of the booths was it does not restrict the time of operation or the number of ,, booths; and it does not subject patrons to disruptive '' offensive to decency, and that solicitation outside the >`. booths was a dangerous activity, possessing the potential `.. , • inspections. The partial doors suggested by appellants k. for violence. = ` would. not be as.effective in preventing sexual activity and 4.. i [ ,This is more than enough to justify the.County's inter- .' .. :,_f - other dangerous conduct. vention. See Wall Distribs., Inc. v. Newport News, Va., 782 'r, [4] We also reject the argument that the ordinance F.2d 1165 (4th Cir. 1986) (similar ordinance justified bythe '. ,_ i. ,; should be invalidated because of the personal motives of : R, certain council members. It is a familiar principle of consti- t ;2The only evidence offered which might rebut any of that cited above was the ' "; tutional law that the court will not strike down an other- statement by Smith that he knew of no illegal sexual activity in the booths '' ' wise constitutional statute on the basis of an alleged illicit f. (explained to mean nonconsensual activity), and the testimony by one of appel- O'Brien, i C;+ = lams'employees that he always checked the ages of potential patrons. legislative motive. United States v. 391 U.S. 367, ' 20 L. Ed. 2d 672, 683, 88 S. Ct. 1673 (1968). < .f`•, t;<: t I 'ter • .;442 IDULT ENTERTAINMENT v.PIERCE CY. Mar. 1990 Mar. 1990 ADULT ENTERTAINMENT v:PIERCE CY. 443 57 Wn.App.436,788 P.2d 1102 i 67 Wm App.436;788 P.2d 1102 P ! -.:'. ; Appellants next contend that the open booth require- ,!; traditionally been viewed in public theaters. There is no 'ment'constitutes an invasion of their customers' privacy reasonwhyi those who choose to view•it in other:public because it prevents them from watching the panoram ' ^ establishments should expect any greater degree of ano- videos with anonymity. This issue may not be raised by the ,;, nymity.4 1 •, i appellant corporations on behalf of their customers. One :{ Likewise without merit is the challenge to the validity of who attacks the constitutionality of an act must show that :'-: section 5.16.060(A) of the code, which sets the amounts of its enforcement operates as an infringement on his consti- the.-various.license fees.: Appellants contend that the fees tutional rights, Citizens Coun. Against Crime v. Bjork, 84 are. unconstitutional because they exceed the expenses of Wn.2d 891,.893, 529 P.2d 1072 (1975). However, inasmuch 4 - enforcing the ordinance..However, they did not produce •as Gerald Holt is named in the com laint, not on as pres- 1' Y P sufficient evidence on this issue to withstand the County's ident of AEC, but as a patron of its panoram booths, we ;;, motion for summary judgment will address the question. k, [7] ,The commercial exploitation of material protected ri, -•_ Amendment mayproperly be . to a . <;-. [5] �The privacy right encompasses interests in auton- ` :., by the-First P P Y subjectj 7'i ::: ` licensingfee.! However, the fee.must be a regulatory mea- oiny and confidentiality. Legislation intrudes on an indi- N v : .vidual's autonomy interest only if it affects his ability to ' ,'. sure reasonably,related to costs of administration and -•~ make crucial decisions concerning matters relating to mar- ,.�; �a,;�;, .enforcement of the statute. See Murdock v. Pennsylvania, :riage; procreation, contraception, family relations, and child , 1 319 U.S. 105,, 319.U.S. 166, 87 L. Ed. 1292, 1299, 87 L. Ed. rearin and education. Bedford v. Su Sugarman, 112 Wn.2d r:• ;i; 1330, 63 S. Ct:870, 63 S. Ct. 882, 63 S. Ct. 891, 146 A.L.R. g f g i:�. 500,'513-14, 772 P.2d 486 (1989). Clearly, the watching of ;-.1 ?. 81 (1943);'BSA, Inc. v. King:Cy., 804 F.2d 1104, 1109 (9th sexually explicit videos is not one of those fundamental 1':;'` Cir.•1986); Baldwin v..Redwood City, 540 F.2d 1360, 1371 S matters. r: trc. , (9th Cir. 197;6). As.those costs of regulation must be pre- [6] The interest in confidentiality includes the right not scribed in advance, they must of necessity be based upon to expose intimate parts of the body to public view. Bed- :' '1 `' estimates which it is the right and duty of the licensing ford v. Sugarman, 112 Wn.2d at 512.3 However, the inter- +',. " authorities to make. Seattle v. Barto, 31 Wash. 141,.146, 71 est does not include the right to engage in sexual activity in -1' P. 735 (1903). a public place. See Ellwest Stereo Theatres, Inc. v. Wen- `s" The County presented evidence compiled by a fiscal ana- ner,.681 F.2d at 1278. Neither is there any privacy claim i' ;' • lyst employed by the Council, that indicated that adminis- with respect to those aspects of personality, appearance, ;.$•,,.. trative and .enforcement costs would total $2,118.43 per and behavior that would ordinarily`be exposed in public. •year for each of the four establishments in the county. That Bedford u. Sugarman, supra. Sexually explicit material~has : :.'y';-. . was approximately $250 to $930 more than the fees charged ,,"' i• n each case: Appellants contend_that the estimated costs , 3Thus,Myrick v. Board of Pierce Cy. Comm'rs, 102 Wn.2d 698,677 P.2d 140, .' for the Fire and. Sheriff's Departments are exorbitant , 687 P.2d 1152 (1984), upon which appellants rely, is inapposite. That case !:; it..: : because the ;time involved has been greatly exaggerated. involved the requirement of viewing portals in internal doors of massage busi- • The contend that the amount of time required by the times.Massage can involve the exposure of parts of the body not ordinarily open ;< • " ':_.•' Y to public view. Additionally, the court held that massages(unlike the viewing of ', .. g:;4. Y appellantsprotectlargely y adult'movies) were traditionally carried on in private, and that the activity was • 4In fact,the cbnfidentialit seek to is lar el illusory, 7c!'=''encompassed by the interest in caring for one's health. The freedom to care for '. customers must expose themselves to public scrutiny as they enter and leave the >; its . _"one's health and person falls within the purview of the privacy right.In re Colyer, . . + '..' booths. 1 `?;99 Wn.2d 114,119-20,660 P.2d 738(1983). I • • a .t�:.l'y,i , I - . 444 ADULT ENTERTAINMENT v.PIERCE CY. Mar. 1990 Mar. 1990 ADULT ENTERTAINMENT v.PIERCE CY. 445 57 Wn.App. 435,788 P.2d 1102 = M+i' 57 Wn.App.435,788 P.2d 1102 4 Iµ. Sheriff's Department is 51/2hours per year, rather than the :'- '''"•` "';`° N.C., Inc., 487 U.S. 781, 101 L. Ed. 2d 669, 693, 108 S. Ct. 60 indicated by the County's analysis, and that the Fire ':t. ' =: t i; 2667 (1988). PCC 5.16.090(B) requires the auditor to make Department would need only 45 minutes as opposed to 4 4. :';;: 1 a decision with regard to,applications within 30 days. Given hours. They purport to base this speculation on the deposi- :-4',.' PZ;c,. the fact that five departments must review each applica- tion testimony of Lt. Smith and Assistant Fire Marshal -';_f`"'' `'' tion, that a substantial amount of information on the forms Robert Skaggs. That testim ony mon y does not provide any sup- ;J.4=� must be checked and evaluated, and that at least two on— port for their position. Smith said that the businesses -- i�;\i. site inspections must be made, we find that 30 days is not would be visited every week by undercover officers, in order " " v ��;" an unreasonable period of times to ensure that compliance with the ordinance existed on a • , Although they did not raise the issue below, appellants 24—hour basis, and less often byuniformed officers.' r, z. now claim that subsection 5.16.110(B) is constitutionally Assuming, as appellants do, that the uniformed officers will ''45.;!'.. ' •pp ,; r; infirm because it does not provide a limit to the amount of visit no more often than once a month, that means the •?;l'"' time permitted the hearing examiner in which to act on an Sheriff's Department will conduct a total of 64 visits a year, • ,,_1. '. �,,, appeal from the denial of a license. We note that the courts in addition to the initial inspection, and time will also be °';a ', have imposed a requirement of "prompt'judicial review" needed to process the multiple applications for each busi- <' where government action imposes a prior restraint on First ness and to write the required reports. Sixty hours is not •` ,,,' .,' ;' . Amendment rights. See Freedman v. Maryland, 380 U.S. , excessive'under the circumstances. As to the Fire Depart- • r: ' ` 51, 13 L. Ed. 2d.649, 655, 85 S. Ct. 734 (1965); Seattle v. ment's time, Skaggs said that each inspection would take :'t1' `�>. t• Bittner, 81 Wn.2d 747, 757, 505 P.2d 126 (1973). A licens- from 30 minutes to 1.76 hours. That time combined with ':: =,, ing requirement constitutes a prior restraint. Seattle v. the time needed for processing applications and writing a ',ir w ` Bittner, 81 Wn.2d at 755; D.C.R. Entertainment, Inc. v. report could reasonably be expected to amount to 4 hours. '..i r; .,441,+':'. Pierce Cy., 55 Wn. App. 505, 511-12, 778 P.2d 1060 (1989). [8] In order to withstand the motion for summary judg- -' "i`': [10] However, we decline to rule on the constitutional- ment, appellants had to present specific facts, showing. =1 '': ,''. ,,, ity of subsection 5.16.110(B) because the 'appellants have there was agenuine issue for trial. Seven Gables Corp. . ''�`°1'' ' not shown any prejudice stemming from that provision. P :=r ,:: MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 •:'::v.;z`'' : : They admit that their businesses were not in compliance (1986). They did not do so, and the trial court properly .r _`.' with the ordinance. There was, therefore, no basis upon decided the issue on the basis of the County's evidence. "::A .::,.:1,,,>: which the hearing examiner could require that licenses be [9] Appellants next contend that the time limits pro- :5 `. ,?:: .:• issued. Appellants' proper recourse was to the courts, where vided for decisions on'applications and appeals are inade- ',. '; they ultimately sought declaratory judgment. Enforcement quate. Licensing ordinances must provide that the licensor ":Y>�=j ,:: , .!;: : of the ordinance has been stayed pending resolution of the will, within a specified brief period, either issue a license or ;,,. . , go to court. See Riley v. National Fed n of the Blind of ,.;IP*;?" 6We find Key, Inc. v. Kitsap Cy., 793 F.2d 1053 (9th Cir. 1986), upon which :, 4y; y,;.• appellants rely, easily distinguishable. That court struck down a provision allow- . , SAppellants suggest that the undercover inspections are only for the purpose 'brtwv,' i'''-' ing 5 days between application and issuance of an exotic dancer's license. How- of enforcing the obscenity laws because the officers view the videos while they are ever, that ordinance'provided that the licenses would issue automatically. Since on the premises. However, Smith explained that monitoring the films was only :', -the requirement was merely a means of collecting information, and no discretion ' `'"�'' ' ' was involved, there was no need for the delay between the application and the part of the inspection. He said that the officers also tried to get "a flavor or taste : r. "' r" ' issuance of the license. of what's going on in the establishments" and to make sure that they were in .: -fit F;; . , compliance with the licensing ordinance. ti •,ki ;'.. .ii'. ,u!,. , ` ` '-` ;max 1:i1ri g',;': '` - 44( ADULT ENTERTAINMENT v.PIERCE CY. Mar. 1990 447 ,'. Apr. 1990 STATE v.BELL 57 Wn.App. 435,788 P.2d 1102 :''.'.,;. `'' 57 Wn,App,447,788 P.2d 1109 ,.;.,°�:: El 1] The trial court correctly concluded that the appel- matter, and appellants have been free to operate their bus- :':�.a. �; <,�, :.. •,' ' finesses without the requisite licenses. Courts cannot pass -''� lants were'not prevailing parties in this case. In order to on the question of the constitutionality of a statute •' r,.,,�. prevail under 42 U.S.C. § 1988, a party must succeed on a `: 's-.}'� ' significant- issue which achieves some_of the benefit the abstractly, but only as it applies and is sought to be „ +.,:A;.;;; . . 'enforced by the government in a particular case before the ; , pry:. - parties sought in bringing the suit. Hensley v. Eckerhart, court. Kitsa C v. Bremerton, 46 Wn.2d 362, 367, 281 `r -',` 461 U.S. 424, 76 L. Ed. 2d 40, 50, 103 S. Ct. 1933 (1983). P.2d 841 (1955). ,':,-,;1--:`:?.x'::='.;'- Appellants' success in this case was extremely limited. They Finally, appellants assign error to the denial of their i„. .`:: _originally challenged' the open booth requirement, the request for attorney's fees under 42 U.S.C. § 1983 and § -- ' `� license qualifications, the discretion permitted the auditor ''"� `:".'<=�;`.` .and the' appeal provisions, the amount of the fees, and the 1988. Section 1988 permits the court, in its discretion, to �p-,,;-r •_ -- , award attorneys fees to the party who prevails in a suit to ti:~,. validity of the entire ordinance under equal protection • I ` .i411„.- analysis. They succeeded only in eliminating the crime- ,,1 enforce § 1983.7 "; _. , related prohibitions. That is not enough to make them pre- •1 7We seriously doubt that the appellant corporations can bring an action under i;''_;, =.': wailing parties within the contemplation of the statute. See § 1983,which states: f-•' {e'.'_5:_; .: BSA, Inc. v. King Cy. 804 F.2d 1104, 1112 (9th Cir. 1986).8 Every person who, under color of any statute, ordinance, regulation, cus- 'i ''-' • The judgment is affirmed. j tom,or usage, of any State or Territory or the District of Columbia, subjects, ';%; =+it;-F-? •,' , or causes to be subjected, any citizen of the United States or other person 1: ..; • within the jurisdiction thereof to the deprivation of any rights, privileges, or --',1;:,' :2.�� ��`' _'�: ALEXANDER r C.J., and WORSWICK' J., Concur. 3 - immunities secured by the Constitution and laws, shall be liable to the party ;' < : - 1 injured in an action at law, suit in equity, or other proper proceeding for 'r:V:'t._= Review denied at 115 Wn.2d 1006 (1990). i redress. For the purposes of this section, any Act of Congress applicable rS F=.•.i,f exclusively to the District of Columbia shall be considered to be a statute of '`, ,;: ' , the District of Columbia. i -',;n` (Italics ours.) "''"' " •, ., is.-:i-.:" :,,,- . ( 1 • The Sixth Circuit has held that since corporations, both public and private, )-kg.t; _;,: , : . are not citizens within the meaning of the Fourteenth Amendment,they can never ::All ` assert the denial of privileges and immunities under 42 U.S.C. § 1983.See South ''''ll*4 ; ' Macomb Disposal Auth.v. Washington,790 F.2d 500,503-04 (6th Cir. 1986).The .-''y [No. 23444-7-I. Division One. April 2, 1990.] i support for this proposition is well established by a long line of cases in which the ••_3"t; .rs.r.-`: t Supreme Court has held that corporations cannot claim the protection of the ;`'-=;t'`'`,:,`3 THE STATE OF WASHINGTON Respondent, V. MARVIN BELL, privileges and immunities clause of the Fourteenth Amendment. See Western & v, Appellant. ;;� PP Southern Life Ins. Co. v. State Bd. of Equalization, 451 U.S. 648, 68 L. Ed. 2d ' '•Iii .;'w 514,522-23, 101 S.Ct. 2070(1981);Asbury Hosp. v. Cass Cy., 326 U.S. 207,90 L. ;• [1] Evidence - Opinion Evidence - Expert Testimony - Ed.6,66 S.Ct.61 (1945);Hague v. Committee for Indus.Org.,307 D.S.496,83 L. •.::,(; Review - Abuse of Discretion. A trial court's refusal to admit Ed. 1423, 1436, 59 S. Ct. 954 (1939);Selover Bates& Co. v. Walsh, 226 U.S. 112, ''` expert testimony is reviewed only for an abuse of discretion. 57 L.Ed. 146, 152,33 S.Ct.69(1912); Western Turf Ass'n v. Greenberg,204 U.S. , r'xr y ; 359, 51 L. Ed. 520, 522, 27 S. Ct. 384 (1907); Orient Ins. Co. v. Daggs, 172 U.S. =''`'` • r ''--; • [2] Evidence - Opinion Evidence - Expert Testimony - •:, ... . Test.The admissibilityof expert testimonyunder ER 702 depends 557, 43 L. Ed. 552, 554, 19 S. Ct. 281 (1899); Pembina Consol. Silver Mining & • 7•a�,.•a-,.,__ p p Milling Co. v.Pennsylvania, 125 U.S. 181,31 I,.Ed.650,653,8 S. Ct. 737 (1888). •` ?.:;,` Cf. NAACP v. Button, 371 U.S. 415, 9 I,. Ed. 2d 405, 415, 83 S. Ct. 328 (1963); ? '=`. . 8BSA challenged an ordinance regulating nude dancing. It succeeded only in Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293,6 L. Ed. 2d 301,304,81 S. '`",-'• having invalidated provisions excluding 18-to 21-year-olds from adult entertain- Ct. 1333(1961);Grosjean v.American Press Co.,297 U.S.233,80 L.Ed.660,666- ..-r'• ¢ ment studios and prohibiting the issuance of licenses to convicted'felons. The ,',1 Y 67, 56 S. Ct. 444 (1936), apparently basing the corporations' standing on the due : i court held that this limited success was not enough to require a finding that BSA process and equal protection clauses. : ` ''" -, " "r, '•;` was a prevailing party. AMIE ,, . j04 STATE v.DETRICK Aug. 19'_ i , ' -,',..'(s:... Sept. 1989 D.C.R.ENTERTAINMENT v.PIERCE COU_• 505 i)' • 65 Wn•App.501,778 P.2d 529 !X" -;H;.: 55 Wn.App.605,778 P.2d 1060 11 R„ as to the contents of a note she destroyed); 'see also x` ''• '_r14. landlord. If anything, the trial court erred b decidingthat11, ' Y � McDonald v United States, 89 F•2d 128 (8th Cir. 1937) the defendant was entitled to have instruction 12.submit- h ' 3 - (party to a lawsuit not prevented from offering evidence .4; -:,- ted to the jury. The legality of the Newharts' entry into the. regarding the contents of documents destroyed by a wit- ,, 'k ; Detricks' trailer had no relevance to'the burglary prosecu- i i. • ness). ;k:v: ,,:-tion: The last paragraph of instruction 12 did no more than :FIil Moreover, even if we were to consider the Newharts to be ' "'Z'' '.''correctly state the law. See Johnson, at 811. There was no the proponents of the letter, we.would find that the court , ,74,` `4: error. t : did not abuse its discretion in admitting the evidence. Both : ` .•:*;+ ,:! The judgment of the trial court is affirmed f ; of the Newharts testified that they destroyed the letter, not `�`• ;; ... (! �� investigating :!,` •':' ' SWANSON and SCHOLFIELD, JJ., it . ? to conceal its contents, but because the officer *` :>i-' concur. ' :1 =j11 ;I led them to believe it was inadmissible in court. They also ',:, E� : e! a '�� believed their : �'i p ii possession of it could lead them to trouble 't,`'4 !��; for stealing mail. Accordingly, there was a tenable basis '"i' , .El I II 1, c 111 is upon which the trial court could conclude that the letter a • ;+.�:, A y II ry; . i'' was not destroyed in bad faith. The trial court did not `: { - j 11,1 I III •:! '; ;;: abuse its discretion by admitting the Newharts' testimony •;4' '!t 13' '; '' regarding the destroyed letter. -' `'. :'1 `'1'e! [3] We next address appellants argument that the last < ; [No. 23175-8-I. Division One. September 11, 1989.] ' f: 1' 0. paragraph of instruction 12 constituted an impermissible ;'k.,,? ; ,,, �. p s'" D.C.R. ENTERTAINMENT, Respondent, V. PIERCE 1 INC., 1 i , !!; comment on the evidence. That paragraph provided: `F ' ,,`r : COUNTY, Appellant li. Bpi I , -It is no defense to the crime of burglary of a landlord's building =• o ill ;� !� by a tenant that the landlord had on a previous occasion . �,.[1].Municipal Corporations — Ordinances — Construction — i; entered the tenant's dwelling unit, either lawfully or unlaw- . f' Legislative Intent—Prior Acts and Constructions.A local '•!d' �! fully. t `' legislative body is presumed to be aware of existing enactments ;'� ',, ';, when it passes new legislation. ii The Washington Constitution forbids the court from corn- -::, ''' [2];'Licenses — Constitutionally <<,ili .! !!' menting on evidence. A comment conveys to the jury "a :.' ,.,, Protected Activity — iv a ,I; personal opinion of the trial judge regarding the credibility, ;•,; •' ' Grounds for Denial — Specific Grounds. A license to engage l j; • �a� !i 1!� , ,, .in constitutionally protected expression may not be denied based sV =j weight or sufficiency of some evidence introduced at the . ',_ :-_` }` ,!'�'�' --;tu3.;.: on the applicant's character, the effect of the activity on the gen- l rt. fI trial." State v Jacobsen, 78 Wn.2d 491, 495, 477 P.2d 1 - :_ " "r eral welfare,or a past violation of law. (1970). Whether a court's words or acts constitute a corn- ' ' ; ''' [3];Licenses ' wentdepends on the — ConstitutionallyProtected Activity — �� . ^� facts and circumstances of the case.;,.,;:;., r ,,; �.:-4 .Grounds for Denial — Absence — Effect. In the absence of 'Jacobsen, at 495• A.juryinstruction that "states the law;a �t •_ 5`l • w , ,,,, objective facts justifying the denial of a license to engage in con- correctly and concisely and is pertinent to the issues raised:: �,}.',:` stitutionally protected expression under an ordinance setting forth lti'. '': '' grounds for denying a license, the issuance of a license is in the case does not constitute a comment on the evidence.:,.: -::;``' is 1 the sole ' -4,5.'`;i,Y mandatory. P `: State v. Johnson, 29 Wn. App. 807, 811, 631 P.2d 413;i " ` ' ii ,! (1981). Instruction 12 did not comment on the evidence. `''4^ r • 41'iMandamus — Public Official or Body a " zL — Ministerial Act. .f ' ,. _ ;;..; u Mandamus is a proper remedy to compel a public entity to carry The bulk of instruction 12 was submitted by the defense;; S : �» and involved the rights and responsibilities of a tenant and ..; ;;:i e'.7 out a nondiscretionary,ministerial act. • ,'i' ,i06 D.C.R.ENTERTAINMENT v.PIERCE COUNTY Sept. 19 � .y;.::.-Sept.1989 D.C.R.ENTERTAINMENT v.PIERCE COU' 507 ;, ,, y;,' 55 Wn.A 505,778 P.2d 1060 .+, , bb Wn.App.505,778 P.2d 1060 li, '`I [5] Administrative Law — Judicial Review — Exhaustion of .r x`, '. ';':•-' Court of Appeals: Holding that the appeal is not moot, (i .•;1 �••'w Il.I I�, ' Administrative Remedies — Constitutionally Inadequate that the issuance of an adult entertainment license is not a 'i,, Remedy.An aggrieved party's failure to exhaust available admin- ', Y :: . discretionary act, and that the plaintiff did not have an ;i :I: istrative remedies does not prevent a court from granting an u;r T -- 'r' extraordinary writ if the administrative review procedures do not YF'. r;*r"i,"adequate remedy at law, but that there was insufficient ;I • ,.,' ; }; evidence to determine whether the license denial was the li satisfy minimum constitutional requirements. -,;, ` .; = ;ronly practical means of achieving the county's legitimate 3 [6] Obscenity — Nudity — Nude Dancing — Constitutional ,. ;: ii Protection. Nude dancing constitutes expression protected by ; ':, i objectives;. and that there was no basis for awarding the } laintiff attorneyfees the court affirms the writ of manda- ^' the First Amendment and Const.art. 1, § 5. - }P ffi i;; ;, ' ,4r=mus,reverses the attorney fee award, f.:� [7] Constitutional Law — Freedom of Speech — Prior ' , .,3R.I' dand remands the case i}i .11 Restraint — Test. Prior restraint of constitutionally protected ,' ,. 'y- :, .tos etermine whether the denial of a license is the only way ,, 0. .I wi expression is valid only if(1) the burden of initiating judicial pro- ' '; ',_ #sUto prevent illegality at the plaintiff's establishment. Ip a +drill :M, ` „ '=,. jiiut II qll ceedings, and of proving the validity of the restraint, is on the : ., ,c i:,..`- �� v1,.�� John W.: Ladenburg, Attorney, and Chris restrainingparty, (2) any restraint before judicial review must be g, Prosecuting y, mil II II. +` c�Q.; , NI `.'�1.����� ��Eli for a specified brief period and must maintain the status quo, and :':j iumn Brintnall, Senior Appellate Deputy, for appellant. q p uu (3)a prompt,final judicial determination must be assured. i'Ir-,� ` 'Jack R. Burns and Burns & Hammerly, P.S., for respon- 5; WIII 1ud �1 �,� . .. . �ymtl [8] Licenses — Constitutionally Protected Activity — ;' dent:. 0 "''I 'l II! Grounds for Denial — Nature. The denial of a license to "'-"' f [ ++I;; engage in constitutionally protected expression must be based on ga �, WEBSTER, J.—Pierce County appeals a writ of mandamus II! ;I I,, justification that li content-neutral, must directly advance a oi . • ?',., ,.A ' ' nificant or compelling governmental interest,and must be the only 'compelling its Auditor to grant an adult entertainment f Id ,;', . .,t,license and an order requiring it to pay attorney's fees inii `` II ,I II,1 practical means of achieving the governmental interest. 1. 'li '; ;; :�; ;'the.mandamus action. D.C.R. Entertainment, Inc. (DCR) `' I iJ )YiaIlabl i,p r'I' [9] Obscenity — Nudity — Nude Dancing — Excluding.,;,,, I , ;�f`'� Minors — Governmental Interest. The prevention of the ti: ',seeks' attorney's fees on this appeal pursuant to RAP 18.1, ii � i; J.�I" i employment of minors as nude dancers constitutes a compelling i,, #relying as it did below on RCW 64.40.020. I 1+ I it 0 ;1- j governmental interest. ,a"�'v'r. ,. �:! i' FACTS i'' •:: [16] Property — Permits —Administrative Error — Attorney .;• '`a':DCR operates a nude dancingestablishment. Initially, it !II Fees — Action for Damages — Necessity. To be eligible for;t;;,t. ��+>�:. y' ti IIgpI 11, conducted its business pursuant to a' topless dancing � � f" Iplpl II an attorney fee award under RCW 64.40.020(2), a party aggrieved ., , ! Iu1 li'II by a governmental body's action concerning a real property permits `sense. The County then passed an ordinance on August `" • ' 7 I'ipl n IPI fir;,, i ,! f application must have prevailed in an action for damages. �61987, which required all businesses offering nude danc= ii , I ,1;1; • a. ng'entertainment to obtain an adult entertainment license. ii. r t.i Nature of Action: The owner of a nude dancing estab- : � i 4le'rce County Code (PCC) 5.14.020. DCR applied for an� ' lishment sought to compel a county to issue it an adult:,, "+ 's`,,adult+'entertainment license on September 14, 1987, soon '::11:i :�4 entertainment license. `,';y_„ +tafterahenewordinancebecameeffective. ,.it � ' Su erior Court: The Su erior Court for Count # The new law re uired license a licants to ;i i p p King y, q PP pay a $500 i No. 87-2-17312-7, Jim Bates, J., on February 10, 1989,° • license fee and to wait 2 weeks. PCC 5.14.030. The ordi- i'i;,. .granted a writ of mandamus and awarded the plaintig,1: fiance:mandated denial of a license for any false statement i i 'or-information in connection with a license application or ! , i`i:' attorney fees. ,'-:. jI i :; • •:'<<, ;, "any..violation or permitted violation of its provisions. PCC I $ W t • 11' 1 T 50� D.C.R.ENTERTAINMENT v.PIERCE COUNTY Sept. 1989 . ;'Sept. 1989 D.G.R.ENTERTAINMENT v.PIERCE COUNT 509 ;` '`� 65 Wn.App. 505,778 P.2d 1060 ' 56 Wn.App. 505,778 P.2d 1060 ,1;i`OF '. 1 5.14.070. DCR interpreted these provisions to require the 4 either. The unrelated dance license does not authorize DCR iIR,,,t, '; County Auditor to issue a license within 2 weeks if there _i. '` w to offer nude dancing to its patrons. PCC 5.14.020. Nor was 'i,t b_DCR denied an adult entertainment license for more than a )I i were no grounds for denying a license. When 2 weeks F,!, �,1,1i , passed and the County told DCR that a license would not "t;i, year, because. the Superior Court ordered the County to ¢( .... y. is ,'M issue for several more weeks, DCR sought a write of man- 'i , is}}sue the license. Presumably, DCR still has that license. >i� 1''! damus. ` •J .;; • . AVAILABILITY OF MANDAMUS t � I Ten days later, the Pierce County Auditor provisionally •, • • -3 ..#�J. I ' , , , The County argues that issuance of an. adult entertain- �: ' !. denied DCR's applicationpursuant to a general licensing s ;, ._ ; 7i, 1 provision. This p provision the CountySheriff to z ` *3 went license is discretionary, and that no abuse of.discre- f� { ) �' p permits ;; .- tion is present. Further, the County contends, DCR waived . :1 j object to the issuance of a license by alleging facts tending , I F" „ ,4",,,: a plain, speedy, and adequate remedy at law by not pursu- r v 4. i{{Ili"' to show that the issuance of the license will harm the - �T., - ;mg an administrative appeal. Either claim, if valid, pre- , '. �;ipIII Public health, safety or morals, or will result in a violation '* ; eludes a statutory writ of mandamus. See RCW 7.16.160 I 0 ' }i ,u of the zoning or license code, or violation of other laws": r` , ' �'`�hoi RCW 7.16.070; Bock v. Board of Pilotage Commis, 91 t i PCC 50.01.040. At the time, a license revocation proceeding . ,.. N ��i Wn.2d 94, 98, 586 P.2d 1173 (1978). {( • I,,u� was scheduled to determine whether DCR's original topless ..'r • '`[1] We reject the County's argument that issuance of an 0 r, 1 I'•'s�'i',;:1i dancing license should be revoked. Also, criminal charges,, 'Y. .,adult entertainment license is discretionary. County's.;1- . ;111! were pending following an alleged raid on DCR's premises �,... Y Y � t aargument is premised on a reading of its general licensing �`, j',iV" The Superior Court for King County, having venue pur-,a.. t" <. . . . ., provisions in PCC 50.01 to supplement its adult entertain- 1,C,1 I M'' suant to RCW 36.01.050, initially ordered the Pierce ,% F 1 ;`i,. nt Auditor to make a final decision by November 2; , !gentchapter,PCC 5.14. Thispremise is flawed as amatter �t": !' Cou,� { L;. Y �; ;�ofstatutoryonstruction, becausethegenerallicensing � . I'; ';'111'!' 1987. The Auditor denied DCR's application on November. , :. r? 5, 1987, citingincomplete fingerprint information on DCR's" +p;ovisions apply by their terms only to licenses issued u.1 ' �!� �� p � _ .under title 50. The Pierce County Council is presumed to ,.'ll '' ',ii w!' application form and its alleged employment of underaget; ,, have;known this when it enacted the adult entertainment C 19 y i' , and unlicensed dancers. The Superior Court reversed the , 3s i. ] '`•' V; Auditor's decision and ordered the County to issue 8.;' ry f'1S•ee PCC 50.01.030 (identifying grounds for denial of licenses "issued pursu- tl hl r 4,3 Y g 't;TI! license. + flit to the provisions of this title");50.01.040 (allowing sheriff "while an applica- e. '1,1 1 I ;tion for,anylicenseprovided for under theprovisions of this title is pending" to !Tit , id!��' �'' MOOTNESS .�'-!�"• P g" I,,i '" 'petition for denial of the same);50.01.050,.070, .080, .090(respectively specifying li �: uN� ! !'ri, . DCR argues that the County's appeal is moot for two,, .- ?15year duration, requirements for renewal, mandatory display on premises, and r • ' reasons. First, the County issued an unrelated dance license ;rounds for suspension and revocation of licenses "issued pursuant to the provi- i'i on May 31 1988. Thus DCR maintains, the County waiver :-` elons,of this title"); 50.01.100-.110 (creating office of hearing examiner with ', ' ' '` authorit to den sus end or revoke an license "authorized »,t t Y y, P Y pursuant to this its objection under the general licensing provision. Second,, ,.., title", to handle "cases filed i ., pursuant to the provisions of this title"); 50.01.130 1 . establishing right,of appeal for "[a]ny aggrieved person having standing under t';}? 1 a;,` DCR notes that more than a year has passed since the,. 5 �i ,I Auditor's final decision. Under the new ordinance, ari; :'.o-titte^); 50.01.150 (limiting transfer of and reapplication for licenses "issued II k'i applicant may not be denied an adult entertainment licensee- pu uant to.this chapter"); 50.01.170 (requiring "applicant for any license under i;{;j . ' . this title" to carry liability insurance);50.01.180(conditioning "privilege of having II ill for more than a year. PCC 5.14.070. I -,iy license included in this title" on consent to inspection of licensed premises); i;; ? j Neither argument applies to the award of attorneys fees; 40:01:190=.200 (setting daily monetary penalty for engaging in any licensed activ- The propriety of the award is plainly not moot, since the!,:., ';tty�i"for which a license is'required pursuant to the provisions of this title"); 1! i. 60 01.210 (establishing misdemeanor penalty for "violating or failing to comply ii i County still has to pay it. The mandamus issue is not moon-; :; I; ; I?=111. ;1. (I'i i. .p• v ' ' ` D.C.R.ENTERTAINMENT v.PIERCE COUNTY Sept.1989 u Sep i 1989 D.C.R.ENTERTAINMENT v.PIERCE COUI. 511 i ';'� 510 r: i-t' 55 Wn.A 505 77 55 Wn.App.505,778 P,2d 1060 ,• ,,,Q,4; pp 8 P.2d 1060 N .,i' is ",,'-c',' 1;, 4 11 :'%312;` ,1 ordinance. See Baker v. Baker, 91 Wn.2d 482, 486, 588 P.2d'4:?,;';`: ' (1950); Saia v. New York, 334 U.S. 558, 559-60, 92 L. :: l Co. u. High Tech ' t•Ed,€1574; 68 S. Ct. 1148 (1947). The County Auditor has no 1164 (1979); Kingston Lumber Supp y ': .:.,: ;;'discretion to denyan adult entertainment license; thus, °' 864, 866,765 P.2d 27 (1988). i 3:� Deu. Inc., 52 Wn. App. � ;�,_., � [2] The Council presumably concluded, after having itsr_ at ,:.,issuance is 'a ministerial act which mandamus may compel ,,'"' .eee�State ex rel. Klappsa u. Enumclaw, 73 Wn.2d 451, 453, former law banning nude dancing struck down, that onl a ° - .,,, ;, ,, .2d 246 (1968); State ex rel. Craven v. Tacoma, 63 plain, clear, and concrete regulation of nude dancing would;, :.•• ,A_ pass constitutional challenge. See BSA, Inc. v. King Cy, ,r, ,, n 2d 23, 27, 385 P.2d 372 (1963); Teed v. King Cy., 36 i :' 804 F.2d 1104, 1106-09 (9th Cir. 1986) (striking down PCC ., Wn'pApp:-635, 643-44, 6773 P.2d 179 (1984). ! 35.02.308A-D on First Amendment grounds). The new )�7[6.] We next address the County s argument that DCR 1 hada plain; speedy, and adequate remedy at law. The gen- "''" ''' era1 rule is that a party who fails to exhaust administrative ordinance makes denial, suspension, or revocation of an" �` liii14u ;.w. it `f � adult entertainment license mandatory if objective, cony; ,. �I ;� � i 1�tnt� tent-neutral facts are established: false information in con:fi , . lremedies 'may not be heard to challenge them by way of mandamus. Bock, at 98 (interpreting RCW 7.16.170), �F �. i4�1 , application or anyviolation otr -" Le01elt v. Seattle, 32 Wn. App. 831;650 P.2d 240 (1982). i nection with a license ,, 1 i ` t,,,ki permitted violation of the ordinance. PCC 5.14.070. In con-,1,. l..ra provisions require "good moral" '�` 'i'i i i rule is not applicable because the County's adminis- ; i`�;!dt, "" trast, the general licensing ., 1{ . 0,1/4 " and permit the County ,to 4"ti'ative review procedures do not satisfy minimum constitu- r Ir. ivi, Character", PCC 50.01.030.(A), i i; f! deny licenses based on the public health, safety or morals ; 4nal'requirements. �a �' '�`°` or potential or past violations of any law. PCC 50.01.040 ;{ :.'".i;.;,,"-.;,:oirvoit-iftdt;',,,81.7:71nLeNnEudddm.e; dancing is protected expression under the : I' not be applied to adult entertain- ent, Schad v. Mount Ephraim, 452 U.S. 61, d rill rt? It, ,i'.r. ' These provisions may � �'� i� went licenses, because a license to engage in constitution=.:, � 2d 671, 101 S. Ct. 2176 (1981), and under, y ,' ; ;;, ally protected expression may not be denied based on the;• ar_ cle:1, section 5, of our State Constitution: "Every person , Ill'I t " "' Y' Y P publish on all subjects, being N ' � "character of the applicant or the "effects upon the gen-�• •1��„�Ak wfreel s eak write and '�t� y 355 U.S. 313, 314 n.1, 321,t° , t�;.esponsible for the abuse of that right." See O'Day v. King i{� :;i eral welfare". Staub v. Baxle , 109 i a:; :, f Fe Wn.2d 796, 802-03, 749 P.2d 142 (1988). The pre- i L. Ed. 2d 302, 78 S. Ct. 277 (1958). Denying an adui . g p ioi, �, entertainment license based on a past violation of law�is.x v81 in view under the First Amendment is that nude �, equally invalid. Seattle u. Bittner, 81 Wn.2d 747, 505 E.2u idai pmg is entitled to the same degree of protection as is <, "'"��t - n •ex Cession,at the core of the amendment. See Key, Inc. v. �'}' 1. .,��i.rd•o 126 (1973). r'� .. I? V n , i�",, � !_t sap Cy., '793 Fa. 1053, 1058 (9th Cir. 1986}. "The set- r �' ! [3, 4] The new ordinance sets forth the sole grounds.for', �F, 4 ' 1' �t.'• sic.' : denying an adult entertainment license, and those grounds'y i . d5rule is that a system of prior restraint "avoids consti- r1 13 are not discretionary. See PCC 5.14.070. The ordinance;; u oval infirmity only if it takes place under the ' { does not expressly make issuance of a license mandator rprocgdurapl safeguards designed to obviate the dangers of a ili :. 111 when grounds for denial are not present, but it must be sq: ,censw5,. system.'" Southeastern Promotions, Ltd. u. f,, i . : construed. Otherwise, there would be an unconstitutional Conrad, 420 U.S. 546, 559, 43 L. Ed. 2d 448, 95 S. Ct. 1239 ; 'j .�1815 ',(quoting Freedman v. Maryland, 380 U.S. 51, 58, 13 ' �'t`; absence of standards to guide licensing officials. See K!iiti`z. y Ec d z:•2d 649, 85 S. Ct. 734 (1965)). At least three safe- IC r1,!' v. New York, 340 U.S. 290, 293, 95 L. Ed. 2d 280, 71 S.,C `dssare. required: (1) the burden of instituting judicial a.VS 5iroceedings, andofproving the validity oftherestraint," with any of the provisions of this title");50.01.220(providing for seizure of license ' ," ":��` 3�,larest on the censor; (2) any restraint prior to judicial 41 when a violation of the title has been committed"). q4,-,, i', Y it I 4 i h p., L t l �l�sl j l.'; lp D.C.R.ENTERTAINMENT V.PIERCE COUNTY Sept 1989 Se)it a1989 D.C.R.ENTERTAINMENT v.PIERCE COUNT A'"_�' W:_ji 65 Wn.App.606 778 P.2d 1060 513 j ij 4 55 Wn.App.505,778 P.2d 1060 (9 tam Io , narrowlytailored means so that the restraint on e review must be for a specified brief period and must malri ,. P,.. Y final judicial determine-;; :pjotected expression is "no greater than is essential to the ;'.t 3 rain the status quo; (3) a prompt, ;furtherance of that interest" United States v O'Brien, 391•!` ' tion must be assured. Southeastern Promotions, 420 .U.$ f; ,UPS:`367 377, 20 L. Ed. 2d 672, 88 S. Ct.' 1673 (1968) (rule I I ', t ' ' 380 U.S. at 58-59. `r``' ` E l;l at 560; Freedman, f., i,_ �'. Passage of the new ordinance, coupled with the County; • applicable to conduct having expressive and non expressive G ° r �,_.'. elements• conviction for f6;s denial of an adult entertainment license, upset the status f public burning of draft card .( ' I" quo. The Auditor's decision acted as a prior restrain' pheld); cf. Erznoznik v. Jacksonville, 422 U.S. 205, 45 L. :iei;[ d'2d.:125 95 S. Ct. 2268 1975 (display i'` because, without a license, DCR could not engage in•pro ., x. . ( ) of nude films at 'r ; - drive=in theaterprotected, though films were visible from j�t� tested expression. PCC 5.14.020. The licensing requirement; adjacent streets and a nearby church parking lot).z 'i ' i. cannot be characterized as a time, place, or manner restric - aJ . e ' };Under the 3-part test, inaccurate and incomplete finger- t Ili � 44 tion, because it contains no temporal, geographic, or otheit _ ,� r prink Information cannot serve as a basis for refusing to itvi - limitation, other than its jurisdictional scope. See StatezU' P .,-1,„:... igio 't''r Coe, 101 Wn2d 364, 373, 679 P2d 353 (1984); PCC 5.14`, 1esuerarlicense to DCR, because the new ordinance does not "e uire. ,this information of businesses. See PCC 5.14.040. " '� �y .020. The administrative appeal procedures available,f;tcl, ,� q;y� "The.:'Count does not need information that it does not .A � �w DCR did not ensure prompt, final, judicial review within!:':' ,;,-`1 ef: Y ,� ,4$� • require,by ordinance. Accuracy aids law enforcement, which Fr , I i° ,;r,; specified brief period. They did not require the County institute immediate judicial proceedings to justify??the , a;significant interest, but it is- fully served when the era ount x has the information it needs. II ?" license denial. Instead, DCR had to safeguard its constitu ,K y • V ' 'tional right by mandamus. DCR did not have a constit" , r., Whether or not this is the controlling federal standard it is the proper one y.a toae'ply`under article 1, section 5 of our State Constitution. Cf. People ex rel. j It tionally adequate remedy in the ordinary course of law;so, , f ' n IPA' °►g /.}CO�d U.l Claud Books, Inc., 68 N.Y.2d b53, 503 N.E.2d 492, 510 N.Y.S.2d 844 I,1 mandamus was appropriate to provide that remedy:,. g¢. ;y, i i.r '•:.?l %:' �19�e)i On remand, after being reversed by the United States Supreme Court on '!' { 1 r i'.` RCW 7.16.170. e g and that the O'Brien draft card burnin case was ins d .I t'- , ginapposite Arcara v. .' ., t;; ORDER COMPELLING LICENSE `-', �'lo4 Books,Inc.,478 U.S.697,92 L.Ed.2d 568,106 S.Ct.3172(1986),the New 1 , .�,Court of Appeals nevertheless held, based on that state's constitution, thatd r,4 The Superior Court accepted the County's allegation tb �paure`oi`a bookstore sufficiently affected the owner's right of free expression, t.. .IIP DCR violated the new ordinance by providing incompley : t the State had to show that closure was "the only available means to abate the ; 1 , •' ,�� or false fingerprint information and by employing und��er::_ s, :Y.ce.°;;,People ex rel^ Arcara v. Cloud Books,Inc., 68 N.Y.2d at 555.Accord, Diu . fl " Pibap'Cy,'v.Key,Inc.,106 Wn.2d 135,141,720 P2d 818(1986)("abatement was n�'' 1'"I and unlicensed dancers. However, the court found, [} -o` lrly;way to atop the illegal activities et Fantasy's"). Emphasizing that mini- '11 w ° `" .i iY tlational safeguards established by the United States Supreme Court could •,:1e.. investigation which revealed these violations was I 's I £j_! 11'�; • flawed due to excessive delay." We are aware of no auth0` ie`conaidered diapositive in determining the scope of the state constitutional ;; I 1';, „ a eat of free ex highestanalyzed i h ity for an exclusionary rule in the current context. Tl1y� expression,New York's court closure as a prior tNttaiit68 N.Y.2d at 557-58, 510 N.Y.S.2d at 846-47. Significantly, the consti- 1 our only inquiry is whether the County's allegations;if t'_ ( •anerovisioninquestionmirroredarticle 1, section5, ofourConstitution. if1` ,, y },,b` ' =rCoast.art. 1 § 8: " verycitizenmayfreelyspeak,write and publish his :i( f�! are constitutionally sufficient to den an adult enter Ientimejanall subjects, beingresponsiblefortheabuseofthatright . . '1; I `�r meat license. quotedArcara 68 N.Y2d at 556,n.*.Unlike the First Amendment the quoted• is " [8] Denying an adult entertainment license has ;;T:" .: irtually bans prior restraints per se.State u. Coe, 101 Wn.2d 364, 374, 3;�. effect of proscribing protected expression. Thus, the jiffs.i8 G.: ;2d:363(1984).; ; cation should (1) be content neutral, (2) directly advan;e, >- r �`° ' ,,; s �,.i x. a {aP., i,,� significant or compelling governmental interest, an , ' . 7; i '" " �r 'q' I tl, i i 6 *1 $• 011 h� . '+4r :r 1..'rya';; :, it `�;'� f. ; l:. •14 D.C.R.ENTERTAINMENT v.PIERCE COUNTY Sept. ':. p 1989; TACOMA NEWS v.COUNTY HEALTH DEIII 515 );f 55 Wn.App.505,778 P.2d 1060 ,c,}r,. ^' dr 55 Wn,App.515,778 P.2d.1066 " [9] The County's interest in preventing the employm;llf -sl�i`8 es'under RCW 64.40.020. DCR did not even have an 11. of minors as nude dancers is compelling. New York.,v'4 Fe :etion .for damages, because the operation of its business ber, 458 U.S. 747, 73 L. Ed. 2d 1113, 102 S. Ct. 3348:;(198C , a not affected by the County. I ' j Requiring that all dancers be licensed directly serves t• : t s AVez'reverse the award of attorney's fees. because DCR ! : interest. Denying an adult entertainment license altogetlie 7-,could not,have satisfied the prerequisite for an award of i is perhaps more effective, but it is not narrowly tailor " '' aorney's fees under RCW 64.40.020(2). We affirm the writ ; unless it is the only way to ensure that minors will' dot be ,'.,o , nandamus. The County's denial of an adult entertain- ]I ' +' hired in the future. ':.4 g .,µ. • . 'n elnt, license imposed a prior restraint without affording �1 K w , The Superior Court did not permit the County toi.prov.., ,a gR';procedural safeguards to which it was constitutionally • that denying a license is the only way to achieve itsAlegi e'titled.;'However, we remand to permit the County to i is mate objectives. Thus, we must remand for this•tfact, I e''"' r determination. If the Countyproves that ordinance ,ylo : « rPr • e'' • allegations. If the County proves that denying a • 1: b .,, i ense:is the only way to prevent illegality at DCR's prem- II tions are so "pervasive" at DCR's premises that denying-: ' ' ' ;es l�CR's license for those premises may be revoked. . F. license is "the onlypractical remedy", the Count a* `t'"'' u rmed inpart, reversed in part, and remanded.Y 3''�:, �; 1 e,w deny the license. KitsapC v, Key, Inc. 106 Wn.2d=13.` '4' 1 • l�F 137 140-41 720 P.2d 818 (1986). However, "the constit_'' `•' WANSON and FORREST, JJ., COMM. ; tion does not permit a licensing agency to deny to ariy'i l '. bi s` ' zen the right to exercise one of his fundamental freedo a•' on'the ground that he has abused that freedom intlie - ,h; •, �' past." Seattle v, Bittner, 81 Wn.2d 747, 756, 505 P.2d 1 '�'1- %",, (1973). Thus, the maynot DCR a license'for'a •4'!`'a"``'' County deny ,� , ,,.�. , r Ii' lawful establishment elsewhere in the county. See Key,(11�}- ft •, .` ! Wn.2d at 143-44. ,,,,,4 `_ :: ' =1,-. `a,i'k.r1 r+•' ' [Nos. 12503-0-II; 12662-1-II. Division Two. September 12, 1989.] ATTORNEY'S FEES ., V z' i`1 ,et DCR relies on RCW 64.40.020 to defend the lower comet' - TACOMA NEWS, INC., Respondent, v. TACOMA—PIERCE „ � award of attorney's fees. The County contends that'RG'r COUNTY HEALTH DEPARTMENT, ET AL, Appellants. dr ti,F cif - r; 64.40.020 does not a 1 1:.« 1 ''Open Government — Public Disclosure — Exemptions — ' ) =' [10] An award of attorneys fees is proper only:if:lgp'- Investigative Records — Nature of Records. The exemption �t ' from public disclosure for" "specific investigative records" (RCW cifically authorized by statute, by agreement of the`p'0:0 . , . ;:r. r - .4;;42.17.310(1)(d)) applies to records that were compiled as a result of or upon recognized equitable grounds. Pennsylvania, t e i �_ a`specific investigation focusing with special intensity on a particu- IlrIns. Co. v. Department ofEmpl. Sec., 97 Wn.2d 412,418 ' P Pi E, lar party. 645 P.2d 693 (1982); Crane Towing, Inc. v. Gortorin9 ; (2J' Open Government — Public Disclosure — Exemptions — 1 I, Wn.2d 161, 176, 570 P.2d 428, 97 A.L.R.3d 482 ,(10,7.}` a4:.'-Investigative Records — Nature of Agency — Health 14 RCW 64.40.020 authorizes an award of attorney's fees,o is? `,` Department. When a local health department is enforcing health � � in favor of "the prevailing party" of an "action for d' - �. s atutes and rules pursuant to RCW 70.05.070(1), it is acting as an } 1'�, ages" brought under chapter 64.40. See RCW 64.40.020(v , ,investigative and law enforcement agency for purposes of RCW (2). Here DCR concedes that it did not bring an actionyf 3 ,..z.42.17.310(1)(d), which exempts from public disclosure investigative 1 It',ii; . ',',4 ttlf:01:';;- � ��� ri ,i'' ,e_`bit ,� '.• . ,; 382 WORLD WIDE VIDEO v. TUKWILA Sept. 1991 Sept., , ' Sept. 1991 WORLD WIDE VIDEO V. TUKWILA 383 117 Wn.2d 382, 816 P.2d 18 ` 1,- ':`: 117 Wn.2d 382, 816 P.2d 18 sequent demands for new counsel were validly denied for ::* ': _-:., ' valid under the First Amendment only if they serve a substantial the same reason as before trial. The right to waive coun- `4 governmental interest and do not unreasonably limit alternative °" " '' sel does not include a right to be immune from the conse- ' ' avenues of communication. r.,:' quences of self-representation. The removal of Mr. De- ,'ti' ,• [5] Zoning — Obscenity — Pornography — Adult Entertain- Weese from the courtroom was within the trial courts a',k; ;= ment Zoning Ordinance—External Evidence.When enact- :+ .y discretion in maintaining fair and orderly proceedings. ing an adult entertainment zoning ordinance, a local legislative ;. ,y .,,� , There is no. place in the courtroom for obnoxious or ,:• body may rely on evidence generated in another jurisdiction only obstructionist behavior. 'J' if that evidence is reasonably believed to be relevant to the ' problem that the ordinance is intended to address. Affirmed. _ •,[6] Constitutional Law — Construction — State and Federal '''' Provisions — Independent State Interpretation — Argu- DORE, C.J., and UTTER, BRACHTENBACH, DOLLIVER, ANDER- ,` '`..= ...'`' ment — Necessity. A court will decide an issue under federals+ SEN, DURHAM, SMITH, and JOHNSON, JJ., concur. "'. ,1 . " constitutional law when no argument is made pursuant to State • `.. v. Gunwall, 106 Wn.2d 54, that a different state constitutional ;_.''r., . s-,' standard should apply. ,�1.C•`.,.' "It' .. ',''; - ;;:{, ' ' ; [7] Licensee—Constitutionally Protected Activity—Amount — Test. License fees for the commercial exhibition of protected ;; ,rx ::: free speech activities must be reasonably related to the costs '? ' _ actually incurred by the government in administering the licens- [No. 56619-4. En Banc. September 19, 1991.] • ` r'.`' .',;•;,: . ing program. • .?;s : [8] Statutes — Construction — Constitutional Construction. WORLD WIDE VIDEO, INC., Appellant, V. THE CITY Whenever possible, a court will construe a statute so that it does OF TUKWILA, Respondent. '.. N;' not violate the constitution. [1] Appeal — Findings of Fact — Review — Substantial Evi- . `: to [9] Municipal Corporations — Ordinances — Construction — dence—What Constitutes. Findings of fact supported by sub- f' j:,` `3-f-;•al Applicable Rules. The same rules of statutory construction lc stantial evidence will be upheld on appeal. Substantial evidence ; � ;,t ,,r, "apply to local ordinances as apply to state statutes. is evidence sufficient topersuade a fair-minded, rational person . ', ` `" ''.':, P ;s_-�;-:_;,�.;,- [10] Licenses — Constitutionally Protected Activity — Owner- of'the truth of the declared premise. - '••`-•lk ''', ' ship Disclosure. A local ordinance requiring the licensing of a . ,,.' commercial exhibition of protected free speech activities may [2] Constitutional Law — Construction — State and Federal r- ...a.. Provisions — Independent State Interpretation — Apply- r, t yam; ".s�, • require the disclosure of the identity of all persons holding a P rP PP Y- ��;•• ing Federal Provision — Effect. By applying a federal con- • ,.tr significant interest in the business, with significance based on a rrI wig`' t:. stitutional provision that provides less protection than Is state ._.•.,?4':- `:; '; . responsibility for the management of the business. counterpart, a court does not adopt the federal standard as the ' rP P . , ll ' state standard. '•�:•;`�,>�; �" � asp, .. [ ] Licenses—Constitutionally Protected Activity—Applica- . . �•:r: cs°;;.''1. _.:y; tion—Timeliness of Decision.A local ordinance requiring the [3] Constitutional Law — Freedom of Speech — Nature of '`' ' - ' '' ' licensing of a commercial exhibition of protected free speech Speech—'Pure"Speech. Written and filmed materials consti- : .• ''_ .`; ,:..' activities must provide an effective and reasonable period within tute "pure" speech for purposes of the First Amendment. which a decision on a license application must be made. [4] Constitutional Law — Freedom of Speech — Time, Place, l .,• 112] Licenses—Constitutionally Protected Activity—Applies- and Manner Restrictions - Test. "Content-neutral" time, .:,:n.; . , y, ,; tion—Denial—Availability of Judicial Review.A licensing place, and manner regulations that affect free speech rights are "- k '};^cF �f;:- ordinance:affecting the commercial exhibition of protected free .fir 384 WORLD WIDE VIDEO v TUKWILA Sept. 1991 .''f. Sept. 1991;i ;WORLD v.:WIDE VIDEO .TUKWILA: ) :385 ' 117 Wn.2d 382, 816 P.2d 18 ', ;:117'_Wn.2d 382; 816 P.2d i18• ) - ':P i‘+;: speech activities must allow prompt judicial review of a denial of l':` W� %premises: WV'!is located 'in` a ;commer cial-,zone' and ' ri;,:a license. • a.::,;'.. . ^y., r directly;abuts. a residential zone. !,,i . •: ,; • DoRE, C.J., and DuRHAM, J., dissent in part by separate opinion. ,z..;,.iV A few months after, WWV began operations in Tukwila, Nature of Action: A' business which sold sexually i4 l{', the City began•a review, of its existing adult entertain- ':4 >'; ment legislation:Various materials were considered in the explicit. materials and operated peep show booths chal- . ','4 ,, course of;the review, including but not limited .to • lenged the validity of an adult entertainment zoningy�� , . ordinance and a peep show licensing ordinance. ,;;i:, Tukwila's existingadult motion picture ordinance, adult :::, ,use studies prepared• by the Cities of.Des Des Moines and s Superior Court: The Superior Court for King County, i,::A r, • KKent materials prepared by an antipornography grou , No. 88-2-15526-7, Mary Wicks Brucker, J., on October 26, ;= i '�.�,; ,.� certain.,applicable United States Supreme Court and 1989, entered a judgment invalidating the adult enter- ::4$1,r:.,• Washington .Supreme ' Court cases, and . information tainment zoning ordinance and upholding the peep show :a:.: provided by an iassistant police chief of the City of Renton. licensing ordinance. '"'P r:•; ;The results. of the review led to the consideration and r4. F-i ':'..' ado tion ',in June .1988, of Tukwila Ordinance 1465 Supreme Court: Holding that the'city had not demon- ; : P �. 4�F ,(amending Tukwila Municipal Code (TMC) 18.06.825). i; strated that the adult entertainment zoning ordinance g P `' Ordinance 1465 regulates adult motion picture theaters, •Furthered a substantial governmental interest but that- _;,;, ��:, . , -;' ;,;. adult bookstores, adult video stores, adult retail stores, the peep show licensing ordinance survived several con- .! .,. stitutional challenges, the court affirms the judgment. �'�` 63k. and other adult uses. Such adult uses are permitted in ''<•: Tukwila only within the M-2 heavy industrial zone. Within :. Gilbert H. Levy, for appellant. 41, i-;'. the M-2 zone,, adult entertainment establishments must ' LeSourd & Patten, PS., and Michael R. Kenyon, for ;'.-a :•F14;: meet various dispersion requirements. `The trial court =` ' ' '4 found similar combination concentration/dispersion zoning respo•ndent. :: • g,� :4,. : . . plans have been utilized in other communities in Washing- DOLLIVER, J. — An adult bookstore sued the City of j ' . ;`, ton. , Tukwila, alleging the City's new adult entertainment zon- ,,!,.'- 4 Tukwila Ordinance 1475 (TMC 5.52), passed later in ' - ;f. 1988 ing ordinance unduly restricted free speech. At trial, the , r .p ,tc ' , regulates panorams, or peep shows. It includes pro- 4.zonin ordinance was declared unconstitutional while the d`:A;: visions requiring `an applicant to acquire a panoram . . City's peep show licensing ordinance was upheld against _ ;,;f.�,,,,j,1y_t,;;, premises license ($100- annual license fee), panoram the same challenge. Both parties appealed and.direct ;= a , device licenses,for each peep show on the premises ($50 1 zy;_ • .annual license fee), and a panoram operator's license for review was granted. We affirm the trial court on both °.:;r°,LLB. �µ,,,,;, issues. ''' .: ' ;:_:, each operator ($725 annual license fee). Applicants for `r''. '5,"(f..''' such licenses'must provide certain information, including I , k l' ' ' ; •"[t]he name, address and telephone number of each•per- • Since late 1987, World Wide Video, Inc. (WWV) has ,ii:,,,,; ,ti, , t.. son holding an ownership, leasehold or .[some sections operated an adult entertainment establishment in the ";, . ,:;:..: ,7 include the word "other"] interest in the panoram . City of Tukwila (Tukwila). In addition to selling and rent- :', , a.1:;{ .::•- [premises or device]". See TMC 5.52.060(b)(1)(B), (2)(B), ing sexually explicit magazines, novelties, and videotapes, r . J :i E• WWV has eight panoram, or peep show, booths on the , (3)(B). The city clerk is required to issue the licenses, or -� ' ' C" ' the reasons for nonissuance, within 30 days after the date j, 3$6 WORLD WIDE VIDEO v. TUKWILA Sept. 1991 . "" Sept. 1991 WORLD WIDE VIDEO v. TUKWILA 387 117 Wn.2d 382, 816 P.2d 18 4 '¢'`". 117 Wn.2d'382, 816 P 2d 18 M .; °Z,-'' In Washington,•findings of fact supported by substantial evi- iof filing any application. The 30-day period is intended to _'•�;4�:';= provide time for various necessary investigations by the " '`'P,° dence will not be disturbed on appeal. Substantial evidence 'v :;:: exists if the record contains evidence of sufficient quantity to .police department, health department, etc. -,: ;.;,, . persuade a fair-minded,'rational person of the truth of the ` In addition to the foregoing,_ordinance 1475 includes ' declared premise. various requirements regarding the configuration of peep vV ,,,,,-, . (Citations omitted:) Bering v..Share, 106 Wn.2d 212, 220, show booths: Doors must be cut at least 42 inches from ..,,.. 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 (1987). the floor; there may be no openings in the partitions zir_p,',, . We believe the trial court did an excellent job of making between booths except close to the floor and the ceiling; :t. "' p -� -specific, well-supported findings of fact. The only finding the booths must not be locked; lighting must be equal =:' :'�;; ' of fact we find not to be supported by substantial evidence throughout the premises; and booths must not have any is finding of fact 45: seatingsurface if theyhave a door or curtain. WWV does ';. ,," The CityPolice De artine ould require approximately ;n : f P �f�' q �. _,:, two full days to investigate each '. . additional operators not comply with any of these requirements. ,-=,,..4,.,,.,., *'���� license. Tukwila does not deny the speech engaged in by WWV ,°;{ •: t T., is protected under the first amendment to the United iy! ;::,,. Because most of the information required in connection States Constitution and under article 1, section 5 of the ,.',ip'rE: with the operators license is based on the business rather Washington Constitution. Both the zoning ordinance and ^:;,;t...1 .:<: , ; than on the individual operator, investigations of addi- the panoram ordinance thus affect protected speech. ''' tional operator's licenses would likely take far less than 2 =' -_` days each.,We agree with `plaintiff'there is neither tes- WWV brought suit in superior court challenging the con- -'' ; t }g�'wx= timon nor reasonable inference from the to stitutionality of the new adult entertainment zoning :Y -: ,-•, Y. testimony ordinance, and seeking injunctive and declaratory relief. �•;;. ;;, support finding of fact 45. Our rejection of this finding of WWV alleged free speech, due process and equal protec- 3_: . `"~'; .:. fact, however, has no impact on the outcome of the case. tion violations under the United States Constitution and ' ,, �.- .s ''., III article 1, section 5 of the Washington Constitution. Tuk- .,,,*:'`F ,-= , [2] Although article 1, section 5 provides greater pro- wila answered and counterclaimed, seeking injunctive ,f tection for speech rights than does the United States Con- relief based on WWV's noncompliance with Tukwila's stitution, O'Day v. King Cy., 109 Wn.2d.796, 802, 749 P.2d j 142 (1988),.federal law operates as a floor for speech pro- .,'C���� �' panoram licensing ordinance. WWV answered the coun- terclaim by alleging that the panoram ordinance was also ,r . --,,=y tection, above which article 1, section 5 operates only • 'constitutionally defective. The hearing on the motions =r$ t tc; when appropriate. When we believe a statute to be clearly was consolidated with trial on the merits, and the case ;ik `_; in violation of the United States Constitution, as we do A'hwas tried to the court. The trial court found in favor of .':$ ,•`, w;_3 here with regard to ordinance 1465, the zoning statute, it WWV on the constitutionality of the zoning ordinance and ,:fr, ., ., ,..., ,;:, is,unnecessary to enunciate a state rule and we do not do in favor of Tukwila on the panoram licensing ordinance. :•r r r° 'so. We:,look,,therefore, to federal law to determine the Both parties appealed. 1.{,� ;,' minimum limits of protection in this area, while empha- `:x -.1 -', sizing .that our application of the federal standard does II '.,: £ _ not constitute its adoption as the Washington standard.. [1] Each party assigns error to several of the trial , .f f.,: r5 .,...., .. [3] In 1986, the United States Supreme Court ruled on court's findings of fact. ";,r9 `°xw a Renton ordinance that regulated the location of adult itit ; 388 WORLD WIDE VIDEO v. TUKWILA Sept. 1991 *,`,'; Sept. 1991 WORLD WIDE VIDEO v. TUKWILA • ` -389 117Wn• .2d382, 816P.2d18 117 Wn.2d 382, 816 P.2d 18 motion picture theaters. Renton v. Playtime Theatres, Inc., ;::4- 4-... ,, ' Renton, '475:: U.S.' at 52. In contrast,''Tukwila has not 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 (1986). ``t `•• :,, shown that adult businesses with predominantly "take- �',iii is:' Renton's status as the leading federal case regarding zon- , 4} <:` home" merchandise (which clearly are covered by the ing of adult businesses :was not altered by the recent .,,0� .. ordinance) have the same harmful secondary effects tra i- r -.,., Supreme Court decision in Barnes v. Glen Theatre, Inc., tionally associated with adult movie theaters and peep _ U.S. _, 115 L. Ed. 2d 504, 111 S. Ct. 2456 (1991) , t shows; thus:the "substantial governmental interest" por- Y z- tion of the test has not been met. Moreover, ordinance upholding a statute prohibiting public nudity against an >, ' attack by entities wishing to provide live nude dancing. .: 1465 includes in its definition of adult bookstore, retail ! .<.='' ' or video store anyestablishment in which: The Barnes plurality stated that nude dancing is expres- ,,. �-- store, sive conduct or "symbolic speech" which, under United -..„ 0_ , (A.) Ten percent or more of the "stock-in-trade" consists of ,,,k� ;- [merchandise] distinguished or characterized by,an emphasis • States v. O'Brien, 391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. , . li::,v - . ,;�„r:;..,= ' on . . . "specified sexual activities'' or "specified anatomical 1673 (1968), is not entitled to full First Amendmentpro- .;`;:;.'"`` r� `I f`-�`�;=,:, areas"; and/or _,, tection. See Barnes, 115 L. Ed. 2d at 512. In contrast, the s, �;, (B.) Any person is excluded by virtue of age from all or • • 1 part of thepremises generallyheld open to the public where written or filmed materials distributed by WWV are ., ` p'a=� - P �i:',1:ik.,; such [merchandise] is displayed or sold. ;_�,; - pure speech for the purposes of the First Amendment. :f;`:,n �;..„;x, __, TMC'18.06.825(a)(2)(A), (B); see TMC 18.06.825(a)(6), (8). ' By its own terms, the Barnes decision does not apply to �;h..r '_° �''"{�� PP Y � �.� ��is '' This definition would even include "mainstream" video "pure" speech; thus Renton remains the appropriate start- ^4 ; .. ,, ,,,, . ing point for cases of this type: :: ` , ' stores that have restricted adult,sections. Yet the trial [4] At the outset, the Renton Court stated: s'"�. court,, in an unchallenged finding of fact, specifically This Court has longheld that regulations enacted for the II' , found: purpose of restrainin speech on the basis of its content pre- ' ,f t ,Lr .'`.: ' None of the sources considered by Mr. Pace in conducting sumptively violate the First Amendment. On the other hand, +:,•<•w , his study indicate that businesses which have their stock in so-called "content-neutral" time, place, and manner regula- .:,. r,`; ' „,�,, , trade limited to ten and 'a half percent sexually explicit • tions are acceptable so long as they are designed to serve a I. ! s , material caused the same type of adverse secondary effect as substantial governmental interest and do not unreasonably rg" . ` {';": - businesses which have one hundredpercent sexuallyexplicit limit alternative avenues of communication. ' t s 7'' material. P .:..' (Citations omitted.) Renton,475 U.S. at 46-47. The "sub- �� 4. _, e_,�',;: i;:, Finding of fact 27. Again, no substantial governmental stantial governmental interest" shown in Renton was that 'r ` :x ,3_ =' „ .i� K: interest has been'demonstrated. Therefore, the Tukwila of combating the undesirable secondary effects of adult , *Y.;.P,„ _:.:. ordinance is not sufficiently "narrowly tailored" to meet theaters. In a statement crucial to this case, the?Renton , ,M , ,`31 ':>ti , the'federal standard. ' Court noted: ,`. ,1 r• it ,, ', ' [5] Tukwila argues it should be permitted "to rely on [T]he Renton ordinance is "narrowly tailored" to affect only °F n ".. a``, . -t the'experiences of Seattle and other cities . . . in enacting that category of theaters shown to produce the unwanted ;$ ,x. secondary effects, thus avoiding the flaw that proved fatal to $�.,' ';� q 4t its.adult`theater zoning ordinance";as the Supreme Court the regulations in Schad v. Mount Ephraim, 452 U. S. 61[, 68 a ; 1. W q .: 'held the City of Renton was entitled to do. Renton, 475 L. Ed. 2d 671, 101 S. Ct. 2176] (1981), and Erznoznik v. City J .' `'F.: -�" ",,, j , -:.�, U.S. at 51. However, that entitlement was qualified. The of Jacksonville, 422 U. S. 205[, 45 L. Ed. 2d 125, 95 S.,Ct. ;k � k ,,, ,, Supreme Court held a city could rely on evidence gener- 2268] (1975). ';�� y;i �. •.= , ated by.:others, '"so long as whatever evidence the city ;d:5 y;ti, fin, . v ,-t Sept. 1991 WORLDWIDE VIDEO v-TUKWILA ' 391 390 WORLD WIDE VIDEO v. TUKWILA Sept. 1991 �.3� r�.�; � 117 Wn.2d 382, 816 P.2d 18 " '� '' •;'r' '' 117 Wn.2d 382, 816 P.2d 18 ,:, relies upon is reasonably believed to be relevant to the . . ,. License Fees ,;. :.,: ....., - :a . _:;.,_ ci, problem that the city addresses." Renton, 475 U.S. at ':-y;,.- .,.<..-: ` [7];'WWV challenges the trial courts determination 51=52. The Tukwila ordinance does not pass this test; it t that the license'fee provisions of TMC 5.52.050(a) are strives to regulate forms of expressive activity different '';; , t' =: constitutional. Tukwila argues the fees are valid because ,r. , t.': from those studied in the materials upon which it relies. ,,. . . -' ' they are based on the estimated time and cost involved in Because Tukwila has shown no substantial governmental ,'; investigating license applications. Our rejection of finding interest that is served by regulating the numerous types ..-. ': -..i. of fact 45 is,not fatal to this argument because there are ,S likelyto be other costs associated with the license system of businesses covered by ordinance 1465, the ordinance is �7 ' A ;. lei ; ',};; : Which were not made evident at trial. The inspections by unconstitutional under the United States Constitution. ,s�, , .r 1, We need not, and therefore do not, reach the question ;' `. ",. entities other than the' police department, for example, e-r. ". 0, will not be ;without cost to the City. Thus, because the whether the ordinance "unreasonably limit[s] alternative ,;- ;,,r-t�r_•.,, z ' exact. costs ;to Tukwila of. the licensing procedure are avenues of communication". A a4. ,z: unclear from the evidence presented and it is not always We note also that the Ninth Circuit stated, subsequent c . possible to estimate with precision the costs of a new • to Renton, that v- licensing system, we are not prepared at.this time to hold five . justices in Young [v. American Mini Theatres, Inc., ,., t=: -_ '. . . , that the fees are excessive. If at a later date WWV could 1 427 U.S. 50, 49 L. Ed. 2d 310, 96 S. Ct. 2440 (1976)] con- * r` i ,eluded that the degree ofprotection the first amendment d, F# `-"I' }_�` , show the fees to be unreasonable in light of the actual affords speech does not vary ith the social value ascribed to - ' ::` costs to the City of administering the licensing program, that speech by the courts. This view continues to govern. ,.,, s,,-,,,. t i`'', as was done in Acorn, a successful challenge might then �. '{ �' be brought. (Citations omitted.)Key, Inc. v: Kitsap Cy., 793 F.2d 1053, r,, :1 ._,..f' 1058 (9th Cir. 1986). Thus.a decision that pornography, s'e Uy: f Disclosure Provisions though protected, should receive less protection than '�t ;.l. Next, WWV challenges the trial court's determination other types of speech would be constitutionally question- ,,` / ; ' �, _ - that the ,ownership disclosure provisions- of TMC 5.52- 7,r able at best, even under federal standards. .`,� . ,,! 1 w'; .060(b) are constitutional. Relying primarily on Acorn, IV ,, ,-v•` ,. ; }� ,. WWV argues the "or other interest" language in the. �.:;; .. ordinance is chilling because it arguably requires dis- [6] WWV argues the panoram licensing ordinance is ;,,� . : t _ �. Unconstitutional under Acorn Inns., Inc. v. Seattle, 887 ' ",,E `.t,i ,,,closure of too much information. The Seattle ordinance at 4.,.. f 1" `,3; issue in Acorn called for disclosure of the names of all F.2d 219 (9th Cir. 1989) and FW/PBS, Inc. v. Dallas, 493 ;,, . y,; U.S. 215, 107 L. Ed. 2d 603, 110 S. Ct. 596,(1990). ,4f shareholders. The Ninth Circuit held: Although we reach a different conclusion than 'the one s` . Because officers and directors, not shareholders, are ,,,. ; � legally responsible for the management of .a corporation s urged by WWV, these cases are indeed helpful in analyz � , :� -i business, there is no logical connection between the Cit s ing the Tukwila ordinance. As no argument was made -A-:� "'._. { •, legitimate interest in compliance with the panoram ordi- pursuant to State v. Gunwall, 106 Wn.2d 54, 720 P.2d 808, s - �` , nance and the rule requiring disclosure of the names of �, '` '" " 5" shareholders. 76 A.L.R.4th 517 (1986) for an application of Washington ;a. x'w„` .' 0't,,,,- PP M ,z:T law to this issue, our analysis is only under federal law. '" }'"` {? 'Acorn, 887 F.2d at 226. We make no statement regarding whether the Washington 'i.' . ,`-, -;{,.t.f;' [8-10] Tukwila's "other interest" requirement could be constitution might support a different standard for licens- •• ; ' •' construed to include persons with a relatively 'minor ing of this type. ::i s.,` `` ` interest in the business, such as shareholders, and if so 1 7.7 ti` '.` ;s,' 392 WORLD WIDE VIDEO v. TUKWILA Sept. 1991 Sept: 1991 WORLD WIDE VIDEO v. TUKWILA '393 117 Wn.2d 382, 816 P.2d 18 - ' ; -''A. 117 Wn.2d 382, 816 P.2d 18 construed the ordinance would be unconstitutional. How- '` ,,- ;.,� argument,' 30 days is not necessarily too long a period, ever, "[w]herever possible, it is the duty of this court to given the various inspections and investigations which construe a statute so as to uphold its constitutionality." `-.- ``' ' placelicensing. ,p y ,,, must take before In FW/PBS the United .pry '.i. .,,- State v. Browet, Inc., 103 Wn.2d 215, 219, 691 P.2d 571 , :. . States Supreme Court struck down a Dallas ordinance (1984). "The same rules of statutory construction apply to :s; Q:,. .' relating to regulation of "sexually oriented businesses" municipal ordinances as to state statutes." Spokane V. .r; `'. . (including panoram-type businesses) because it "[did] not Fischer, 110 Wn.2d 541, 542, 754 P.2d 1241 (1988). There- {: provide for an effective limitation on the time within fore, we construe the ownership disclosure provisions of -.?::-,::NI.: :1,. which the licensors decision must be made." FWIPBS, TMC 5.52.060(b) as requiring disclosure of all persons !„., i"':,;: 110 S. Ct. at 606. The Court stated the following require- who hold an interest similar to that of an owner or lease- '_ ',"�-9'``' ' ments: holder — an "other significant interest" with significance °`'1, .; 1 gn >.; [1 T]he licensor must make the decision whether to issue the being based on responsibility for management of the busi- A 0, ti license within a specified and reasonable time period during ness, as indicated in Acorn. This construction also satis- .�;y:o .,�_.' which the status quo is maintained and [2] there must be the , ,. possibility of prompt judicial review in the event that the fies WWV's vagueness concerns by eliminating any license is erroneously denied. inappropriate discretion that might have been vested in F'.*^•- . ., . % the licensing official. As so construed, the ordinance '2-,.c} ,-- <_ FW/PBS, 110 S. Ct. at 606. meets federal constitutional standards. ,,7 The Dallas ordinance, like the Tukwila ordinance, t •,, called,for.approval of license applications "within 30 days Configuration Requirements t11 - Y after.receipt of an application", FW/PBS, 110 S. Ct. at WWV further challenges the trial court's determination .° 1" ..;,'.. 605; see TMC 5.52.080. In Dallas, as in Tukwila, certain that the illumination requirement in TMC 5.52.110(4) '`-.''>-`4t health and 'safety inspections were required before a (referred to as 5.52.110(D) in ordinance 1475) is constitu- license might be approved. FW/PBS, 110 S. Ct. at 605; see tional. In Acorn, the court approved of theportion of the ` Y'''° ': PP TMC 5.52.060(a), .080(b)(1). The Court found the Dallas Seattle ordinance requiring that peep show booths "be :,;-.,;,7 ordinance unacceptable, not because of the 30-day time sufficiently illuminated so that someone outside can r 1tr ;3 period, but rather because it "provide[d] no means by determine the number of persons inside". Acorn, 887 F.2d § : '.''4: ,� which an applicant [might] ensure that the business [be] at 223. WWV argues the Tukwila ordinance goes too far in •441 = inspected within the 30-day time period within which the requiring equal lighting throughout thepremises rather ;;'_ '' _ � approved." q g q g g g , � - � 4�. license [was] purportedly to be �issued if than merely "sufficient" lighting. The trial court dis- f. - :''"i, ..,.-..,, FW/PBS 110 S. Ct. at 605. The Supreme Court did not agreed. We affirm. The minor difference from the ordi- r--.4t.,:i� ,rn A 4._:. find the 30-day period inherently problematic. Its disap- nance noted in Acorn is within the community's discretion . E * ;. : =: ; proval'of the Dallas ordinance was instead based on the and is not unconstitutional. :'.. k: ;_ , absence of any remedy if the City failed to issue a license Time Period for Issuance , {4 ' � �` within those 30 days. f{: . . [11, 12] Finally, WWV challenges the trial court's deter- i.;, ,-_ : There is thus one crucial difference between the Dallas mination that the 30-day maximum approval period in „,, , '• # ;.: and Tukwila ordinances: The Tukwila ordinance contains TMC 5.52.080(a) is constitutional. Contrary to WWV's ,,;;::' "•, ;: provisions for appeal if a license is denied. The Supreme Fi.J ti A - ,. SY.Rr 11..« 5� Y;' . yr •?'s` } ':` Sept. 1991 ; WORLD WIDE VIDEO v. TUKWILA 395 394 WORLD WIDE VIDEO v. TUKWILA Sept. 1991 vi; 117 Wn.2d 382, 816 P.2d 18 <,: .�,• 117 Wn.2d 382,816 P.2d 18 - - World Wide Video,.the challenger to the zoningordi- Court noted that the procedures described in the Dallas :,x r• .':,, g ordinance ;<p): nance in question, operates an adult bookstore and peep ''-`': :=i -' shows in a commercial zone bordering a'residential area [do] not place any limits on the time within which the city :;�;,�-�;. ;' ;; will inspect the business and thereby make the business eli- of Tukwila. World Wide Video argues that the zoning is an gible for the sexually Oriented business license. Thus, the 3i4 unconstitutional restriction on expression. Tukwila's ordi- city's regulatory scheme allows indefinite postponement of ;* the issuance of a license. ..-Ait.•-w•V..:.• nance segregates adult bookstores and peep shows to one "' '- `',' area, the M-2 heavy industrial zone, but does not prohibit I+'VP/PBS, 110 S. Ct. at 606. In contrast, TMC 5.52.100(a) ' ' their operation. This-ordinance resulted from a planning °'< t�'+;�� provides for review by "the city board of adjustment, or 1.i;'ro study that considered other cities' experiences in zoning . . . such other hearingbodyas mayhereafter be estab- "'"' ' -k .:` � ''a, ,.. adult businesses. Tukwila's method concentrated these lished by the city council for the hearing of such appeals". €,, ` 4=,,'- businesses in an area comprising about one-fifth of the The hearing must take place within 20 days after notice ,, _!, •- ,;: city. of appeal is timely filed, and "[t]he filing of such appeal " ' ' , :` The.majority concludes that Tukwila does not show the shall stay the action of the clerk, pending the decision 5t}: , ti governmentalPlaytime , ; substantial interest that.Renton v. Pla tame of the hearing body." TMC 5.52.100(b). The Tukwila ;, •• . '. Theatres, Inc:, 475 U.S. 41, 89 L. Ed. 2d 29, 106 S. Ct. 925 ordinance further provides that the decision of the hear- _..fs' ' ; ,, r:_ (1986) required. In Renton, the Court upheld as constitu- in body maybe appealed to the superior court. TMC t.;;4-.,, �' °":. g Y PP P =• ' tional the City's effort to establish 1,000-foot buffers 5.52.100(e). As long as these procedures for appeal are not -: F - between adult movie theaters and residential areas, used as a means of unreasonably delaying issuance of ; • churches, parks and schools.Renton established the City's licenses, they are sufficient to satisfy the FW/PBS test. ' 1 Y• :{ J .-- substantial governmental interest to be in furthering V ` I., m neighborhood quality by traditional zoning powers, which ' The decision of the trial court is affirmed. ''< . amounts to time, place or manner restrictions on expres- sion where the effect on speech_ content is neutral. 475 ! l.- -• r ,,, U.S. at 47. UTTER, BRACHTENBACH,ANDERSEN, SMITH, GUY, and JOHN- L !i , 11 th. £' In sum, we fmd that the Renton ordinance represents a SON, JJ., concur. ,',,'G°. 11 ' ' ti� i 1.; w,.-r,r :.. = valid governmental response to the' "admittedly serious } ,+ problems!' created by adult theaters. . . . Renton has not used DORE, C.J. (concurring in part, dissenting in part) — I <"t ;"'',_.; the power to zone as a pretext for suppressing expression," concur with the majority's decision upholding the peep "` `. _'"i . . .•but rather has sought to make some areas available for * - 1•' r . . adult theaters and their patrons, while at the same time show licensing ordinance, but I dissent from its holding ,;�;s� ,�4,=�,,��f�„`7;: .:. - ,,, , preserving the quality of life in the community at large by that the adult bookstore zoning ordinance is uncollstitu- ':F ' :i._.4•�•-<•,4 >,:, ,; "'preventing those theaters from locating in other areas. This, ; tional. Tukwila or any other municipality should be free :r:;•�: .,' ',, ; after all, is the essence of zoning. to manage commercial development by zoning procedures. ^".. ',- 54,,, ,,- ` '" 475 U.S. at 54. That means the city may determine where adult•book- ;; s ; ;; ;,,; , ry • ,t ; , Here the majority reasons that Tukwila improperly stores should be located, so long as this determination (1) r;,,r� s j Y I only affects protected speech slightly or neutrally and (2) ;r.} r,F ' , 1! ' �, ,' founded its adult bookstore and peep show ordinance on furthers the city's "great interest" in neighborhood qual- L j , , , ,T'� , : the experiences of other cities regulating adult theaters ity. Northend Cinema, Inc. v. Seattle, 90 Wn.2d 709, 718, ~ .-i•i, . ' _,,,-, , , :_, because Tukwila's zoning regulates a predominantly take- 585 R2d 1153, 1 A.L.R.4th 1284 (1978), cert. denied, 441 '''r,: :I• ,,;:j.,,`: , home :business, different in nature from adult movie U.S. 946 (1979). ', ; theaters. Majority, at 389-90. Moreover, the majority calls 396 WORLD WIDE VIDEO v. "�R TUKWILA Sept. 1991 ', 12, Sept. 1991 : WORLD WIDE VIDEO TUKWILA 397 117 Wn.2d 382, 816 P.2d 18 y;� 4R 117 Wn.2d 382, 816 P.2d 18 - Tukwila's definition of adult bookstores so broad' that it .y::• The Court rejected the argument that Renton improperly arguably includes "mainstream" video stores, thus corn- .- '; • enacted its. zoning'regulation because 'it did not conduct pounding the City's failure to show a "narrowly tailored" M:i;i3 studies specifically related to Renton'sproblems. 475 U.S. substantial governmental interest. Majority, at 389. ,• -. b P Y g at 50.'Then the Court stated: ,, Renton and its predecessor, Young v. American Mini ?,?. � <:" The First Amendment does not require a city, before enacting : Theatres, Inc. 427 U.S. 50, 49 L. Ed. 2d 310 96 S. Ct: �;���' ;.A,'. = :such an ordinance, to conduct new studies or produce evi- 2440 (1976), unmistakablyaddress the need for cities to. : ' g' ,-. ''. dence independent of that already generated by other cities, • 1 „ protect neighborhoods against the insidious effects of 'a?3 li.:, ` so long as whatever evidence the city relies upon is reason- protect „� � ,w",•: ably believed to be relevant to the problem that the city I adult entertainment —just as cities traditionally control :,, addresses. :_: other commercial development. We recognized the same • ;,`; r ;,:• (Italics mine.)475 U.S. at 51-52. The protected interest is value in Northend Cinema. % ak'.,; '`;', ;:a:',r ° 1 neighborhood quality, so the relevance the majority.finds Tukwila's need to control development and its effects is .:. • ';, 1 ,_. •; : lacking is the riddance of the same obnoxious effects the substantial governmental interest that Renton ; k ~ associated with an adult business clientele, whether at requires. Therefore, the City is restricted in exercising ', , s movie theaters or peep shows. See, e.g., Clerk's Papers, at that need 'only by assuring "reasonable alternative u .. a,,,...,•, ,rd 376 (deposition of World Wide Video manager, discussing avenues of communication." Renton, 475 U.S. at 50. The ` w'` _ ;' P l : '• s''r' i • evidence of masturbation in peep show stalls). City's interest in attempting to preserve the quality of ,fi,�� The majority also overlooks one critical distinction in urban life is one that must be accorded high respect. '', =-.'.;�_ ' ._kit.�;. ,t:. .; reaching its conclusions. Ordinances at issue in Renton Renton, at 50 (quoting Young, 427 U.S. at 71). Likewise, ` +. ' ,- • and Young each were broad enough to cover the type of our focus in Northend Cinema, as now, narrowed on the •. ., :a adult business World Wide Video operates in Tukwila. For City's determination to control unwanted secondary ' '" ' ,''' : ! ' example, Renton's zoning ordinance defined an adult effects of adult businesses in otherwise.serene neighbor- •• ',- r ..,_._ theater as hoods. ' i "[a]n enclosed building used for presenting motion picture The majority catches one phrase of the proper analysis. Yam, °. ; films, video cassettes, cable television, or any other such ' ,''` ';= `:'"t visual media, distinguished or characterized] by an empha- But it misses the point by finding Tukwila s ordinance is '`; 't, _ ':-!,17 sis on matter depicting, describing or relating to 'specified not. so narrowly tailored to meet Renton's substantial ,,: .0 4: .;: interest test. In Rentonplaintiffs objected h sexual activities' or 'specified anatomical areas. . . for obser- governmental ••`,t,•„`['I vation by patrons therein." to zoning that established certain buffers between adult *' Renton, 475 U.S. at 44. Thus, byits terms, the Renton 3 . movie houses and residential areas, churches and schools. ;' i w >> ordinance arguably includes peep shows. In Young the • :; plaintiffs challenged the constitutionality of a zoning 'Tukwila Ordinance 1465 defines "adult entertainment establishments' as : .,, '3-, , • ordinance regulating adult bookstores as well as adult including: 2. "Adult bookstore" is a retail establishment in which: . ''g movie.theaters. Young, 427 U.S. at 53 n.5. a. Ten percent or more of the "stock in trade" consists of books, maga- .:.4— ., _ �,..,:h. Recognizing that Renton built on Young gives sub- zines,posters, pictures, periodicals or other printed materials distinguished ; : r- or characterized byan emphasis on matter depicting, or relatings ' .; stance to broad language in those decisions emphasizing - Pr. 'y. describing to "specified sexual activities" or _ that the issue is zoning regulation and not speech restric- b. Any person is excluded by virtue of age from all or part of the premises '•, x{ a, -�-i . generally held open to the public where such material is displayed or sold. ?c'z. �<;.,; 2"In our view,the resolution of this case is largely dictated by our decision in Former TMC 18.06.825(A)(2)(a), (b). .�iE ; s Young v. American Mini Theatres, Inc.[l". 475 U.S. at 46. R ; •i a x JEti§i?( 3 • 'x;j'.1�• WORLD WIDE VIDEO v. TUKWILA 399 A?14' • 398 WORLD WIDE VIDEO v. TUKWILA Sept. 1991 >,5 Sept. 1991 117 Wn.2d 382, 816 P.2d 18 117 Wn.2d 382, 816 P.2d 18 tion: The nuisance is blight, not unpopular expression. , k;,. Louis,' 851 F.2d 199 (8th Cir. .1988) (adult bookstores,• Regulation of blight, of the unwanted secondary effects ; :�: theaters, peep shows, massage parlors); 7250 Corp. v. 1 associated with businesses that purvey explicit sexual =' " Count `Conim'rs; 799" P.2d 917 (Colo. 1990) (time.restric- ;R P Y y books, tapes, gags and peep shows, is proper commercial ): tions on nude dancing); County of Cook v. Renaissance ;illI zoning. The narrow tailoring that the majority complains �" 'n .. Arcade & Bookstore, 122 Ill. 2d 123, 522 .N.E2d 73is missing in Tukwila s ordinance I find easily discerned (1988) (bookstores, mini-theatres), dismissed,, 488. U.S. in the City's categorization of adult businesses that sell -;•-' 882 (1988); Montague v. Cedar Rapids, 449 N.W.2d 91 p,and show explicit materials, so designated to protect the � • _(Iowa Ct. App. 1989) (bookstores); Islip v. Caviglia, 73 , quality of city neighborhoods. Cf. Renton, 475 U.S. at 52 ;,�� ,;'..'. N.Y.2d- 544, 540 N.E2d 215, 542 N.Y.S2d 139. (1989) L I ("the Renton ordinance is 'narrowly tailored' to affect only ) .,, ("adult uses", including bookstores, cabarets). (I that category of theaters shown to produce the unwanted " � '; ,: Tukwila's ordinance is, in the end, reasonable zoning, secondary effects"). as the Court found the ordinance to be in Renton. 475 f In addition, the Court in Renton'appeared to disregard ,'r 0_�,'• '' : U.S. at 54; cf. Barnes v. Glen Theatre, Inc., _ U.S. _, the subtle difference between adult movie theaters, on ''"''';"` jj'Acs, 115 L.:Ed. 2d 504 111 S. Ct. 2456 (1991) (Souter, J., con- , one hand, and other adult businesses. Rejecting an argu- ;?$4 r f:`• i:. curring) (ban on nude public dancing furthers substantial s 4 • went that the Renton ordinance was underinclusive, `: •v,'• state interest in combating secondary effects of adult rr; . because it affected only adult theaters, the Court stated: •;: .• entertainment.establishments). , That Renton chose first to address the potential problems , ': The majority misses the singular reasoning in Renton, created by one particular kind of adult business in no way ,"` 4:` Young,'and Northend Cinema: A city can determine where suggests that the city has "singled out" adult theaters for :.;,,, ,,,,. adult bookstores`or peep shows or full-screen adult movie 1 discriminatory treatment. We simply have no basis on this _,':�A ° ,;., I &.: :t., theaters can be located 'on the basis of its substantial record for assuming that Renton will not, in the future, ,- ; ; amend its ordinance to include other kinds of adult busi- 'Y'.0': ,r.,,. " interest in neighborhood quality, •so long as it does not nesses that have been shown to produce the same kinds of sec ; `-,.=,: ondary effects as adult theaters. ==>>><-; ��.;.; prohibit these businesses altogether. Here, Tukwila has not employed the power to zone: as a: pretext for sup- 1 (Italics mine. Citation omitted.) 475 U.S. at 52-53. My . ,,;,; pressing,expression and seeks principally to preserve the added emphasis is noteworthy because the Court did :p y "quality of life in the community at large". 475.U.S.:at 54. not .say "other kinds of adult businesses that can be '.:A,'iiis : I would hold that the City properly zoned adult book- i shown. . . ." This emphasis bolsters my conclusion that ',!,,;. stores to one area and that the ordinance is not uncon- ! Tukwila reasonably believed other cities' studies on the . 4 , stitutional. • I would affirm the decision of the City of ii w .Y' " ' Tukwila and reverse the trial court. secondary effects of adult businesses were relevant"to its ;�, ..,, zoning consideration. Many courts that have considered . 4;'' adult business zoning restrictions have adapted Renton's ,_,�, �� ;,•; DURHAM, J. concurs with DORE C.J. reasoning easily to uses broader than adult movies. See, :` .., ;i=:: e.g:, Walker v. Kansas City, 911 F2d 80 (8th Cir. 1990) '�'=�-� ` r Reconsideration denied November 25, 1991. ,,' Y ,,. ;rx. (go-go dancing), cert. denied, _ U.S. _, 114 L. Ed. 2d *. ':: 476, 111 S. Ct. 2234 (1991); Thames Enters., Inc. v. St. z`;.i.'`'' _ Y : �,, t, 2d'SERIES • t .: 108I {', MILLER v:.CIS'CITY Oli SOUTH'BEND ;;;F'+,.. , t„? Cite as 904 F 2d 1081 (7th Clr. 1990) to determine. �::'r: r- United States v; "' w` , .. ••... :., Coffey,Circuit Judge, filed dissenting 395 - ',,1362, 1369 (11th Cir.19917:'f., St, w. Thomas, 870 F.2d . 'lease MILLER and JR's Kitty Kat opinion. ; : 17 ;`" ,� Trtounge, Inc., an Indiana Corporation; :` 'Easterbrook, Circuit Judge, filed dis- th C�r.ia$9). The court gaye,) :' ,. =°?:, the benefit of the doubt and "�" and Glen Theatre,Inc.,an Indiana Cor- senting opinion in which Manion and that the negotiated amount Co1l• {'L .• ,'''.•&poration, Gayle Sutro, and Carla John- Kanne, Circuit Judges,joined and in which Ences. This figure is supportr eArai, ��, , Vfrson, Plaintiffs-Appellants, ..',�j Coffey; Circuit Judge; joined in part.�� •' ord and is not clearly erroneo v "''" Manion, Circuit Judge, filed dissenting ,refore cannot accept Mr. Bu r;-' , 1I ggsi`: � ' ;'; ,iCNIL CITY OF SOUTH BEND, 'et al.;.- opinion in 'which Coffey and,Easterbrook; nt to the P ,..contrary. �'' Defendants-Appellees. Circuit.Judges, joined. 3. -,3a'44y '{, 'a Nos. 88-3006, 88-3244. °LL" 4 1. Constitutional Law c=90.4(3) y, even assuming that the distri,:"f, • = i`�"' United States Court of Appeals, -'f+ Nonobscene nude dancing performed •red in calculating the a licali a`'��"� _. '' `'. ;', ' Seventh Circuit. ' - as entertainment is expression and.as such ag range, the error would be h ;'7 'y,.'rc - '� `...��",.' Argued May 25, 1989. is entitled to limited protection under First ith regard to the June 16 sale .of ,;` ;. F t "_ Amendment; nudity and unappealing na- 1e difference between the negotiat= ' h ,;4" Reargued En Banc Jan. 31, 1990, unce and the actual sale weight i.'y.:Y 6 4 ''` Decided May 24, 1990. Te of dance involved does not serve to ms. Accepting Mr. Buggs' - i,v; '.. . remove partial protection afforded nude arg�i= �; ;•' ':' As Amended May 24, 1990. barroom dancing by First Amendment the district court should have`xf t"�'.��'c ' t U.S.C.A. Const.Amend. 1; IC 35-45-4-1 ed Officer Jones' testimony cony 3 ti` ; '.p•s,` he amount of cocaine Mr. Bu ';i' ' '' "r: .'i Establishments offering nude dancing (1988 Ed.). f on June' 16, eleven grams (the',- ; c,., ;.+ ., 'f�;;'as:entertainment and performers brought 2. Constitutional Law c790.4(5) nivalent of two ounces of cocaine_',2,�•'' '-;suit:., challenging constitutionality' ;. of Obscenity a2.5 removed from the sentenciri- "'Indiana's public .indecency statute. .';.The ' • Indiana.public indecency statute,which g"" "�ZTnited States District Court for the North; on. Accepting further the claim:`°��, on its`face provided for total ban on nudity Sharp, inpublic laces, was unconstitutional as vidence supports only three miner-�;;'• ' •, 'ern District of Indiana, Allen Chief P Dias attributable to the June'30,j '!r.' `judge, 726 F.Supp. 728, preliminarily en- applied to prohibit nonobscene nude (lape- ls, the difference -•1'4'': '�,.;. is one ounce or -' ;• .,,�;;joined enforcement of statute and subse- ;rig of barroom variety performed'as enter= ht g The total difference`', '' ,quently permanently enjoined enforcement. tainment. U.S.C.A. Const.Amend. 1;`IC ie cc'_,l.: and Mr. Buggs''final ; `�`he Court of Appeals, 802. F.2d 287,.;re- 35-45-4-1 (1988 Ed.). ns is 43 grams;' which yields T�fi �', versed permanent injunction and remanded. - -- • 101 grams for sentencing'puk,.'`•:: , ;4; .On.remand, the District Court, 695 F.Supp. is, even if we accepted all of Mr ;'t °,: • , found that nude dancingCharles A. Asher, South Bend, Ind. and 4viain question ' Lee J. Klein,=Durand, Mich., for plaintiffs- )•.,, a.;.,, ,. ins concerning the total amo'uii��;,,,° :; was not protected by; First Amendment. ; involved, that total would'sti1P:`'Y:,. ';,L,Opappeal, the Court of Appeals, 887-1+.2d appellants.' • . r ::.�a� . ,vel 26 offense (more thanf:i00':`,;;" +,826 reversed and remanded. 0 inion was `' William E. Daily, Asst. Atty. Gen.;`°Ar- an 400 ) P grams of heroin "and a t, `r ' ;vacated' and rehearing en bane 'granted: th.ur T. Perry, Wayne E.'Uh1,'Deputy At= • range of 92 to 115 months. ;;,; ''' :}'4 The'' Court of :Appeals, `Flaum, Circuit tys. Gen.,'Office of the Atty. Gen.,'India Conclusion `-5-`'- ;Judge, 'held that: (1) `rionnbscene nude n'apolis;- Ind. 'and-Robert-C:-Rosenfeld; -- r''. i ',t :;;dancing of barroom variety performed as South Bend, Ind., for defendants-appellees. evidence was adduced at trial;=': . '- entertainment was expression and thus'en- - ' the jury's .determinations.::`'�'f�•- " titled'to a protection under First Amend- :Before BAUER, Chief Judge, - .-. ,..-.1-, 1e district court's factual con-`.°wa .: : ,S. went, and (2) Indiana statute which on Its CUMMINGS, WOOD,.Jr., CUDAHY, :a..; e not clearly erroneous and the' ; % - : '': face. provided for total ban on.nudity in POSNER, COFFEY, FLAUM, . ?ntencing range.was properly si:'-. f;~s.public places was_unconstitutional as op- and RIPPLE, MANION The judgment of the district - - .''' plied to prohibit•such dancing. - and KANNE,.Circuit Judges. 'efore affirmed. e - -; • '' a,r, ' Reversed. FLAUM Judge,. y • }}(( �` � Circuit Jud e,joined.b - '�� ' Cudahy, Circuit Jude, filed concur- BAUER, Chief.Judge, CUMMINGS, ', ,fi: ring opinion. ;: HARLINGTON WOOD, Jr.,•CUDAHY, o S KEY NUMBER SYSTEM 1 ;1 }. "' •. i • POSNER and'RIPPLE, Circuit Judges. : r. Posner, Circuit, Judge, filed..opinion " ';4""; • "x=. concurring in opinion and judgment •of .In this case we are asked to reconsider - : •" . court. ,, . our unanimous decision in Miller v. Civil , t o ' L ;�, 4 �t V';:''"• v ''yr: ,(t t-- ` rr t; ' �c} i F.. r . -•i. ,, , r ��` '; _' � �sT ;?;w sti `'� �E ' ..6.,:=c.., i.t �, ' ` . •�a' � till! { � f. �:, r � r ,r *.''' -'�. r �. _. ..tea.+ ,., 'r 7.,,a-....�,.,_ ':e"`..Lr . . AT 4 ,q, ..", -/rt ririgi"i! tilliclgE 1 . 'ill: ...) „ ,, ---‘, ' • ',k IT ,• , 1082 904 FEDERAL REPORTER, 2d-SERIES .., , r . 3„ l• City of South Bend, 887 F.2d 826 (7th any part of the nipple, or the showhig:',?,-':' •;;•' o n , : Cir.1989) in which we held that Indiana's covered male genitals in a discernibly: :,,,,,',,14;.„•-,., Public Indecency statute, IND.CODE 35-45- ' gid state."' Obviously, the activity;i3h64,;: ,•4-1, was unconstitutional as applied be- plaintiffs seek to engage in falls within this ... • -.- •`, -Ifri ,•il ' Iir',,r1`.: 1 cause non-obscene barroom variety nude definition. _ '-- 11,,„1,,s,li , dancing performed as entertainment is ex- We stress from the outset the limrt4,1,.; • - ? lill,,i r !. pression and, as such, is entitled to limited scope of our inquiry today. This case_Clog,:.,..4,'-•:- ,:••: • i'll,f ft' i protection under the first amendment. , ttert; • not concern obscenity, as the State:11a- .,a ,.11 , / tThhisatcoouprtinioanndwwaes resuhebasredqueernatllyarguvacmaetendt- . , obscene. alsodoes notconcern w e et, these establishments are "public places"i,44,„1,,,. under the statute; the plaintiffs acknowl; '- edge that they are. See State v. 13aysin1::Y;?-.,:: -.1 y r• , conceded that the dancing involved is nii:•-' '•'`; 1'• [I , ebnaTs The based nocn on e extensives majorityubJanuarys substantive votet,i vibe9y9aont.hde judges procedural o f -, It h th •-:"' . , • , i• ,,i, , C111 itil: .r; • It.iI 19 • .Pr' ';'nFli114.• ; 111 01,/ i:' • ,'!I,1 • i i;P.f Pi I : '14'IZI liVr history of this case is adequately discussed in our vacated opinion and we need not repeat ourselves here. See Miller, '887 F.2d at 829. The underlying facts of this matter are uncontested. Plaintiff J.R.'s Kitty Kat Lounge is a drinking establish- ment located in the City of South Bend that . _ . • ' Lq:',. ri.• prior to the enactment of the ordinance in -• •4`iftl q er, 272 Ind. 236, 397 N.E.2d 580, 583(1980)1Y,:c- And we are not concerned with any alleged sfk,;i:`• • • ,, overbreadth problems; that issue has al•-•,),1„,:"'ready been resolved by this Court. ';§";iV•I'ci': *:'• Glen Theatre v.Pearson, 802 F.2d 287-...e7a, Cir11987). Rather, the issue presented foli:7,4,4,'; .• this Court is a narrow one: whether tig;•4,,, • .4..• ., obscene nude dancing of the barroom iai4e•;" --.•-0,q4 c.....1.,„4, question provided nude dancing as enter- their patrons Plaintiff . -• -•L-.,1•,•%_`, '' ty--, performed as entertainment, is exitesj-xf,•• tainment for .., ' sion and thus entitled to protection iniitet. t'-'114•4:R!. • Glen,.. Theatre, an establishment which does not ' the first amendment.2 Our analysis of the , ' • -,,,-••''.4 I serve alcoholic beverages, similarly provid first amendment, based •upon Su-pre/Ile-1 ed nude dancing as entertainment. Plain- - ._..... 4% ;•,. i I n, ,1„pi - • • -•• Court teachings and prior lower fedeta :".`:.• ' tiffs Darlene Miller, Gayle Sutro and Carla i •-•-v-',.... eil ' --„--,--,4 • • •p,., . • . court decisions, directs us.to the conclusiorif l Johnson are dancers who wish to engage in , • •' :1,•: .•••,- _ - such activity. The plaintiffs, in two'sepal pro that such expression is entitled to liiiiiii:4f: •`: • „ • protection and thus the' statute is uncoil:a*,, , . , rate actions that were consolidated-ori ap- •-• tutional aa applied. - ' •,•-siAT• ; peal, filed suits in the district court to --. , ‘,..,. 4, i:.-..,. ... f 1 1 enjoin the State of Indiana from enforcing ,..• . . -'-)., ,-'-';;,' .:1• •1 nude fitiso m publicpr es.e ..In addressing.the issue before us, i -.' .. ,--,"' 11. i indecency law sepinreiv,_nenudttli_beami; room dancing. The statute, IND.CODE-35 recognize that we are not writingT:1` t.'"r'Z'• 45-4-1, on its face provides for a total ban clean slate While yet to delineate 'aiei,,- on nudity in public places. .Violation of,the precise scope of the protection sagofaeit, ill ..,i 1• statute is a Class. A Misdemeanor. :it nude dancing, the Supreme Court, alqg , :4;• ' • I broadly defines nudity as "the showing of with several circuit and district courts;*;., :,: 2, the human male or female genitals, pubic repeatedly and consistently intimated that :j•-•(, 41 1., : • area, or buttocks with less than opaque nude dancing performed as entertainer 1 • covering, the showing of the female breast is protected activity under the first iiiteiig,,v•o•-,, , • :•1,.q 4 i • .71... — .?..... _ ill f:1 with less than a fully opaque covering of ment. The Court first addressed the issue ,' , -;4.• , • " 1. 1ND CODE 35-45-4-1 provides in full ... ..„,.. ' -(b) "Nudity" means the showing of theihu-...„;.,-1-411 i!lf Public Indecency man male or female genitals, pubic area, or Section 1. (a) A person who knowingly or buttocks with less than opaque covering,,Alitt':;,:, showing of the female breast with less than p,IN: •• intentionally, in a public place: ;,. 't,'..-', • , (1) engages in•sexual intercourse; - .- 1---1 , .. .. ple,fully opaque covering of any part of the nict••:: or the showing of the covered male geni.-,:- •04` .;., (2) engages in deviate sexual conduct; ',.',1 (3) appears in a state of nudity;,:or'...- ., • f , tals in a discernibly turgid state. --)' --':::',C.- :-,•- ,• f.,:,ftr.r;,,,,:•;:, . . (4) fondles the genitals of himself or anoth- 2. Throughout this opinion, we use the general,.: !..111 er person; '- ' . s'" term"nude dancing"to refer specifically,to non-, ., , ' commits public indecency,.a-Class A misde- obscene nude dancing of the bar-room-_variely, l ..- - /- i i meanor. -, ,.., , : .,, performed as entertainment. •Ii;Ct‘91,`- ',, ;-.1.•+,:' 3 "—I/ , I: , .1,,1* S ' 7k 1 ill „i ai .11, II "^. 41 , , •. .,I. .A., ..• -. .. ,, -, . .t., ..-4.,y..,; ! .. c, ' .:.. . .,:A-,-• ,. ' ..: r--' -'—. -- --- IX, z Nil. +y , 1 CRIES . �..- . . » MILLER v. CIVIL. CITY OF: SOUTH BEND 1083 Cite as 904 F.2d 1081 (7th Cir..1990) ;he i or the showin ' :- „;Laf;first amendment protections for adult Northhampton, New York, town ordinance g ° "N' 'a'-entertainment in California v. LaRue, 409 which prohibited topless dancing in "[a]ny. ger _„ in a discernibly. c . " ,:'enterta f Obviously, the activi -`u,s.. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 public place.". 422 U.S. 922,95 S.Ct. 2561, ty'the& 4972)' a' c to engage in falls within tbi$ w where local bar owners sought a 45 L.Ed.2d 648 (1974). The Court, per Jus- '`,declaratory judgment that regulations tice Rehnquist, declared that "[a]lthough -. r. : v ,>` mulgated by California's Department of the customary'barroom'type of nude danc- from the outset the limited'',; ;•. c Beverageregulatingingmayonly inquiry today. This case does`'' J-.' glcohol Control re latin the involve the barest minimum Y _.w obscenity, as the State. " "�'`" ,‘i. ype __of entertainment that could be of protected expression, we re.cognized [in ,has ''.- -z%presented in nightclubs or bars were un- LaRue] that this form of entertainment the dancing involved is no>i4,t ..' constitutional because they abridged the might be entitled to First and Fourteenth dso does not concern whether r :; "" freedom of expression guaranteed by the Amendment protection in some circum- Ltute; s are "public places" ems• `'Lifirst,and fourteenth amendments. The stances." Id. at 932,95 S.Ct.at 2568. The ante; the plaintiffs acknowl- `.v • • :u argulations in question "provided that li- Court upheld the grant of a preliminary y are. See State v. Baysing; ' _:` r, '`or-b the drink shall not be served in injunction on the grounds that, unlike the 36, 397 N.E.2d 580, 583(198,4 q 4 w ,I places where certain grossly sexual exhibi- ordinance in LaRue,. the ordinance was of concerned with any alleged: I '; `c-tions are performed." Id. at 119,.93 S.Ct. overbroad because it applied to all commer.- problems; that issue has al t.e "'''''` 397(Stewart,J. concurring).. Reviewing cial establishments and thus was not justi *solved by this Court. 'See g, at:",cthe'legislative history, the Court observed fiable under the twenty-first amendment. v. Pearson, 802 F.2d 287(7th}a ,2.• . tF. • that the regulations were aimed at "bac- The Court reached differing conclusions ether, the issue presented for :4•`'?ehanalian revelries" that went far beyond in LaRue and Doran concerning statutes a narrow one: whether non= :. -R./simple nude dancing and entered the realm regulating adult entertainment. In doing dancing of the barroom vane-4 -� `''`°' so, it drew a distinction between an estab- �,,, :� of'"obscenity. Overturning the district i as entertainment, is expres- �' } • ,tourt's grant of the declaratory judgment, so, it nt which serves alcohol and one entitled to protection under 4 's i'I. held that the State was empow- ''' which does not. The ordinance in LaRue idment.z Our analysis of the...' ;. `- -hied under the twenty-first amendment to • ,•. was upheld because it was within the con- Went, based •upon Supreme .,_., = regulate such entertainment in establish- ,'. , .� fines of the state's power under the twen- igs and prior lower federal. fir ' -; menu that serve liquor. In so holding;the ty-first amendment whereas the ordinance • s, di us.to the conclusion t, dart recognized that "some of the per- cress, 5-entitled to limited.i `= in Doran was not. These two cases can be r°formances to which these regulations:ad- I thus the statute is uncons >`;;.' ,; ^ ' ' reconciled only on the implicit assumption s-dtess-themselves are within the limits` of that the regulated activity, topless dancing; -i i lied. ):.::: ... ;c -H .r p g, P 77::it.; T.4. ,' '-ihe`constitutional protection of freedom of ,v:,, r was protected by the first amendment i f• ' expression .::" Id. at'118, 93 S.Ct. at 397. Otherwise, the 'state's police power would I. <`, ,` " E.;Tlie Court`was unanimous in agreement . i - be sufficient to"support the statutes in`botli �_ " re ardiri thisprinciple. The dissent ng the,issue before us;, v g g by cases. This-implicit assumption was made • l 1,4 Justice Brennan found that the regulation ,t we are not writing.1o� ;l .rexplicit in the Courts next encounter with zclearl applies to some speech rotected While yet to delineate 1 . y PPP nude dancing, Schad v. Mt. Ephraim, 452 :: ''° i' „lisp.'the First Amendment . '." Id. at.123 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 452 of_ the protection affor e t ; _i , the Supreme Court•-along.. .; R, `.,1r93=S.Ct:_at-399 (Brennan, J., dissenting). _ '= T__ P (1981). - - ircuit and district courts;,'lias : k '; In a-separate dissent, Justice Marshall not- ,,-,,,,i d consistentlyintimated that'e ' _. ` ed evidence that the regulations may have In Schad, the Court addressed a city j r _' been enacted for the "specific purpose of zoning ordinance- that prohibited all live. ; performed as entertairiinen }rY.' .. : y, "' evading"the standards imposed on obscene- entertainment The defendants, operators �tivity under the first amen ; .,L. Wirt first addressed the issue ' -, . ty'laws and that "the Government may of an adult bookstore, were convicted.of =y ,# '` ` ,‘,suppress expression treating with sex.only violating the ordinance by offering to its ' means the showing of the'��iiu _, 1 it.meets the three-pronged Roth—Mem- customers the opportunity to view a live )r female genitals, pubic ing. o,-r�,�, X ;` 'F :pig [obscenity] test." Id..at 139, 93 S.Ct. nude dancer. The Court overturned the th less than opaque covering,,die ' `.� :,= t;'4:,at408 (Marshall, J., dissenting). convictions finding that the ordinance, by the female breast with less than a f, r'° restrictingall forms of live entertainment covering of any part of the nip�� �x - ,.r xIn the next case before the Court involy- howing of the covered male,gene` ";r. .- ,}'fig nude dancing,the justices strengthened was overbroad and thus violative of`the ' >cernibly turgid state. <. first and fourteenth amendments • ant , their apparent recognition that the activity this opinion, we use the goneral> , ., . , ncing"to refer specifically to non ,ii, : '?•may be protected expression. In Doran v. The Court began its analysis by discuss dancing of the bar-room-variety_s, -Salem'Inn, owners of three topless bars ing the scope of.the broadly drafted city_ entertainment. 'I" moo�,. ' ,+•�.sought a'temporary injunction against a ordinance:. "Here the Borough totally_ex-. °;at: i. e, ,xti. g s !jr !k_ _ ,3}�d Via. «+ e..+-. 3,ii Mi'c.�8 ��-. „E?-' • o c:i'., -a : 1084 904 FEDERAL REPORTER, 2d SERIES - 1 ;. r,,. j • : � ' I eludes all live entertainment,including non- rani, recognized the Court's "repeated indi= :_ ' }tit-, 1"1. obscene nude dancingthat is otherwise pro- " cations that barroom. nude dancing is a` , ,a - 1 } tected bythe First Amendment." Id. at 68, type of expression that is protected' `' " i. p tected under y .'' 1+ � , f; 101 S.Ct.at 2182. From this starting point; the First Amendment"and urged an explic- .y 10: , the Court went on to discuss the protec- it holding regarding the scope..of that pro- .t` f ; k 1' tions afforded nude dancing under the first `i tection. In addition, in Massachusetts u. " 4 •# ,. ';1 amendment. It noted that [n]udity alone ' 3- 4 � 1�� Oakes, — U.S. —, 109 S.Ct. 2633, 2642, s f r`r r does not pIaCe otherwise protected material 105 L.Ed.2d 493(1989), Justice Brennan, in ;� 4 ' ` R outside the mantle of the first amend- ' Ai k ' a dissent joined by, Justices Marshall and .", F Y' *,+ t ment." Schad, 452 U.S. at 66, 101 S.Ct. at ; ` 2181 (citation omitted). The Court went on Stevens, declared that Schad affords nude '' 'J" dancing protection under the first amend- }'1'V.1- $..pi to state that "[n]or may an entertainment i a - ' ; 3; 14 be ment,and that modeling,like nude dancin ��iti .Ak s program prohibited solely because it d- r, 4w t; displays the nude human figure „ enjoys like shelter under the First Amend- y: 1 '' ment." See also Sable Communications i ��1f,,�E, Based on these principles the Court con- 4. 10, eluded "nude dancing is not without its V. FCC, —U.S.—, 109 S.Ct. 2829, 2836; ' � . ?I,' 1: First Amendment protections from off- 106 L.Ed.2d 93 (1989) ("[s]exual expression „ ti s i 'I 's'• cial regulations." Id. (citations omitted) which is indecent but not obscene is pro- §^ ti r f,,l ' i# (emphasis added). The Court, while find- tected by the First Amendment"); New ; t 4{ '. na ' ing it unnecessary to define precisely the York State Liquor Auth. v. Bellanca, 452 'r 4• : Y 'ai °° scope of the protection afforded the activi- U.S. 714, 719, 101 S.Ct. 2599, 2602, 69 ."``:v - `'; ''l,a ty, unmistakablyrecognizedL.Ed.2d 357 (1980) °;t 4 k «�r; that in some (Stevens, J., dissenting) !t r • ,'; j circumstances it falls within the ambit of (stating that in LaRue the Court recog- °`, , I- i=i, the first amendment. nized "the protected expression implicated j'' f The majority's position on nude dancingby nude dancing"). _Most recently, in '?` -�„ r' in Schad was accepted by the entire Court. FW/PBS, d/b/a Paris Adult Bookstore II M-, 1 Chief Justice Burger, joined.by,Justice a City of Dallas, -U.S. —, 110 S.Ct.; z V.-` , 596, 107 L.Ed.2d 603 (1990), the Court ad- r mk ;; Rehnquist, dissented on the overbreadth ,,<,.1 t issue but accepted:the majority's view on dressed a challenge to an ordinance enact- • ,. i } nude dancing. The Chief Justice concluded ed by.the City of Dallas regulating"sexual �F#�� VI 1 ti 211 that "the fact that a form of expression ly oriented businesses." through a scheme 4f ' " 't•4 ' incorporating zoning, licenses, and inspec-• a;r ; ' ?:;s ���> � [nude dancing] enjoys some constitutional i i protection does not mean that there are not tions. .,Various adult establishments,:an. g several * `'' #..',, � times and places inappropriate for its exec- eluding providing live nude danc- Y ` �' cise." Id. at 86, 101 S.Ct. at 2191(Burger, ing, sued for declaratory relief and a tern n _ C.J., dissenting)�__Justice Stevens, in a con- ping, as well as a-permanent injunction. .. , 1r,;; ;, , a 's ' ` ' earring opinion, recognized.that "the foli- Six justices agreed that the ordinance vio= , at 4 E 4 - 4,P age of the First Amendment may cast pro- by `V` ' ' lated the first amendment establishing a '�,�.; t i-.I " tective shadows over some forms of nude licensing scheme without adequate_proce- -4 -, dural safeguards � T# l d dancing :.." Id. at 80, 101 S.Ct. at 2188. as required by Freedman -F.', .1. . �. ,a�' 1 l As a result of the Court'3 agreement on v: Maryland, 380 U.S. 51,.85 S.Ct. 734,.13 .# 1 this issue, Schad has generally and contin- L.Ed.2d 649 (1965), but theysplit into two ':• .rid " ,K` i•y ually been recognized by, lower courts for camps as to what safeguards are required :ace r,4 ° .r n 'i -'. the proposition that nude dancing is pro- in this context. .Justice O'Connor, writing .;i, _'µ , ,;, } #.# _., tected expression. . . for the three-member plurality, began her ;;, , 7 : �, # In the Court's post-Schad decisions it has analysis by noting that ;;; rr' �{• a consistently re-affirmed itsposition '`in' ;. z '[a]lthough the ordinance applies to some :,,l � '}t, } Schad that nude dancing performed as eii- businesses that apparently are not pro- ;, i'i tertainment falls within the scope of the • tected by the First Amendment, e.g., es- - ` `! first amendment. In Young v. Arkansas, - cort agencies and sexual encounter cen- ::, ,;4 . t ,' ;�ri 474 U.S. 1070, 106 S.Ct.830, 88 L.Ed.2d 801 ters, it largely. targets businesses pur- .;s ''S.'„ 4 3; I. I r - (1985), Justice White, joined by Justice •veying sexually explicit speech which the : i , �. 4 it f � Brennan in dissenting from denial of certio= city concedes for purposes of these cases i M ;t¢¢¢' .e s. " ; - t[� tom ""�.'a `I yZ , ., t'' , !, 'V �'Fl try,.,. ' y _ 1. RIES MILLER v. CIVIL CITY OF SOUTH BEND 1085• - '`, . <4, Cite as 904 F.2d 1081 (7th Clr. 1990) d the Court's "repeated indi=n,>`'.-.• , ,' ,..r are protected by the First Amendment. history goes back at least as far as-fifth lam'.: nude dancingis:: ;''`..,'.,- i•'•-•�,,:_ , a �r,r ,, . -;,; :..Cf. Smith v. California, 361 U.S.,147, century classical Greece, where Euripides sion , is protected under'; "k‹' ', ; 2:150 [80 S.Ct. 215, 217, ,4.L.Ed.2d.205] described the frenzied fertility dance in his dment"and urged an explic) ='`'-r;:,; .<t �:-(1959) (bookstores); Southeastern Pro-' drama Bacchde. Dance also has biblical ring the scope of that pro= :"-' " ..24 motions, Ltd.. v. Conrad, supra [420 roots. See e.g., Psalms 149:3 ("let them dition, in Massachusetts ti`•=W '2'» , ,-G' ,,.---,U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 praise his name with dancing,making melo- • —, 109 S.Ct. 2633, 2642, *" ,,",,IV- ,;(1975)]_, (live theater performances); dy to. him with timbre and lire!"); Psalms 3 (1989), Justice Brennan, in ,,V,; ',:'-3: -.-Young.v. Mini Theaters, Inc., 427 U.S. 150:4 ("Praise him with timbrel and dance i by Justices Marshall and k .:" 'i-•'' =50 [96 S.Ct. 2440, 49 L.Ed.2d 310] (1976) ..."). In ancient Rome, dancing was an .xl that Schad affords nude :':: ;f•, ; ;(motion, picture 'theaters); Schad v. important part of the annual festivals of ion under the first amend- -^`,_t- ` �' Mount Ephraim, 452 U.S. 61 [101 S.Ct. Lupercalia and Saturnalia which featured. nodeling,like nude dancing, '- '•,'' '-h .__-2176, 68 L.Ed.2d 671] (1981) (nude danc- wild group dances that were the precursors !ter under the First Amend- ' ,1;'4- '' ;,.;f5 ing)• of the later European carnival. Eroticism .o Sable Communications' Y 4° 'y Paris Adult Book Stores II, 110 S.Ct. at in dancing also has ancient origins. The 109 S.Ct. 2829,2836 ;'a, ' '��' _ " . `� 604 (emphasis added). The plurality then modern-day belly dance, or baladi, can be it but ("[s]exual expression a„$,e ,''''- it but not obscene is pro- `-"' concluded that "the businesses challenging traced to the Egyptians of the fourth cen- '"r: i,, ,f, the scheme have a valid First Amendment tury, B.C. Buonaventura, W. Serpent of First Amendment"); New `;a :`;' ;../:% interest." This recognition that the first the Nile (1990). From these ancient roots ;or Auth. v. Bellanca, 452 T,;': ;s. �-•:ip-_ amendment affords nude dancing some one can trace the forms of dance native to 101 S.Ct. 2599, 2602, 69 -, ' �' ``4.. protection is implicit throughout the plural- America.-, Indeed dance pervades our cul- 0) (Stevens, J., dissenting) . : ".. r.',•;•,:r ity opinion. With the exception of Justice ture, from the American Ballet Theater to LaRue the Court recog- ••i '- ,• Scalia in dissent,no other justice took issue Broadway's A Chorus Line and West Side .ted expression implicated ".' with the plurality's position on nude danc- Story, from Hollywood's Astaire and Rog- g"). Most recently, in4 ' ing- _ , ers to the local discotheque. .cr Paris Adult Bookstore II Dance has been defined as "the art of U.S. —, 110 S.Ct`- ;;t- 1{.f` :- - , H. 7» w<;`.' °`` ' „" moving the body in a rhythmical way; 603 (1990), the Court ad- " t . ;�1] From this reading of Supreme usually to music, to express an emotion or ge t:, .-c'_,'Drdinance enact-',< y`' .''' s )alk " '• Court precedent, we are constrained to idea, to narrate a story, or simply to take ?sse ulating"sexual. :; ?: + ;.` hold today that,as a matter of law, non-ob- delight in the movement' itself." 16 The asses' ..sough a scheme `,; : -- scene nude dancingperformed as entertain- �•' New Encyclopedia Britannica 935 (1989): I' ing, licenses, and ins pec.�„r`� ,,,'- {,: ;�• Inherently, it is the communication of emo- Ldult .establishments m '`',. went is expression and as such is entitled .' �-'�s roviding live nude danc: ' '"E, ' to limited protection under the fast amend- tion or ideas: At the root of all "[t]heiratory relief,and a tem.i* . '; ment. In reaching this conclusion,,we,are varied manifestations of dancing ..:'='lies >, r.,. well aware that.the distinction between the common impulse to resort to movement a permanent injunction, ;F. , =` conduct,and expression is an elusive. `i`~ I that the ordinance via a.1 1'7-t P to externalise states which we cannot ex' ndment byestablishin a�� ."`• ,1 a clearly.not all conduct is expression, ternalise by rational means.• This is basic „. g wx` dance as entertainment is a form of con- �► ,`, without adequate _ dance. Martin,' J. Introduction to:the' tl proc'e r . ;'' .. s required by Freedman gti , F duct that is inherently expressive Dance (1939): Aristotle recognized in'Po'- U.S. 51, 85 S.Ct. 734 13 _'yt.F , ' We begin with a brief examination of the etics that the purpose of dance is"to repre- but they split into:two : `"1,: ' mode of expression involved. Dance'.'as sent men's character as well as what they safeguards are required a 'x afi' ' ' "` entertainment is one of the earliest forms do and suffer. The raw communicative istice O'Connor, writing �. . �''' of expression known to man.` Its written power of dance was noted by the French , ier plurality, began her. -` ; 1 " `- 3•`-In dissent,Judge Easterbrook charges us with 4. Judge Easterbrook's dissent argues that..we :;• that .r,-.; ;_;, • 5 t:.`-7S ti+» .takingthe position that the Supreme Court has should not attempt to discern the line between , , '-t • . >= y affirmativelydecided the issue resent- -conduct and speech because doing so draws us finance applies to some ,-,Jr.;- -already p PP °'� =', 'ed toda . We take no such position. To the into the province of the.legislature. Dissent at •, apparently are not pro-,•'i ri k '" contrary,we have simply analyzed the relevant 1129-30. It argues"that by adhering.to the ' :' broad categories of speech" and conduct"'we F' ;t Amendment, e.g.,'es="aY;g d<',.T=' ;• - Supreme Court and lower court pronounce- ,{;, ' ' ' ' ' -'ments in this difficult and sensitive area of the cati avoid this infringement. We respectfully ; sexual encounter ten ('' ;. I4„ z, ''s-''..' suggest that doing so begs the question as .. �rgets businesses put=.;�1?; s.,:' ,- law.`,As-an intermediate federal court, we are what is protected and what is not. .We there- _•,• - ?; obligated to interpret the present state.of the fore decline the invitation to abdicate or.avoid '. :plicit speech which the ':^:`- ':. } '.: our responsibility to interpret the Constitution P law as well as.envision what the Supreme Court )urposes of these cases-,,i,,,;,`-- , would- hold if directly,presented with the issue. r$; consonant with Supreme Court direction. !i �, u - .��� is r - 1Y' .,. ., S,,'` -' 1"i/. i ,. ' ;, 7 L.-' +k 1, '' ash, kg .s>� a q", 1* F. x r•t ;°'a Lc. ev' f4a `i`+. i.,, .,t - 1 S &- ::,- gsC e ,y, r ,'gat$` 1 , �4 t R.c,_`^_ ffi,v .-. ,,, d: —.5.;,, _,!, ,.. S>> r`r'w'K'"w.._"P14 2,a` .beet -_.wl. .,,40. , +P11;`n,,r:."A`.:4 _ ,t' .., ... .,,O. . H yl �i1 l E i � �' is r , 1086 904 FEDERAL=REPORTER, 2d SERIES k�"• a t 4 ° poet Stephane Mallarme who declared that 284,(1970):- "[W]e think it is largely:be- ,`1 ' ' s'l i '' the dancer "writingwith her bodyr "� ••• sug- cause governmental officials cannot make t � ,j t ! gests things which the written work could principled distinctions in this area that-the x ,°., ' 's(1, 4' express only in several paragraphs of dia- Constitution leaves matters of taste and x,./ �` logue or descriptive prose." style so largely to the individual." It is *" it= ' Any attempt to distinguish. "high" art irrelevant for the purposes of our inquiry3 iI' �4 ' ,I t r, , , from "low" entertainment based solely on that we may find the expression inherent in • `, r; St ; ,a the advancement of intellectual ideas nude dancing to be at odds with our partic 4� F= ,i` must necessarily fail. Judge"Easterbrook ular tastes; just last Term the Court re=af '+^: ' contends in dissent that music and ballet 1,;41 i x firmed its belief that "[i]f there is a bed- F' f i,l are protected because music appeals to the 1' , intellect and ballet tells stories, whereas rock principle underlying the first amend °f I,;1 ment, it is that the Government may not , ,h ,4. ;'":" rr ` nude dancing offers neither. Dissent at I. prohibit the expression of an idea simply �;.` � 1124. Not all ballet tells stories, however, ,, ;t til, because society finds the idea itself offen= :Je 1, } ,, and not all music appeals to the intellect. i 1+ 4 i,, sive or disagreeable." Texas v. Johnson, '; r • The art/entertainment distinction would re- � • j' ; 4' — U.S. —, 109 S.Ct. 2533, 2544, 105 `• ',move the shield of the first amendment 1+ l• i from many forms of nonverbal art because L.Ed.2d 342 (1989). As the Second Circuit -,r they fail to communicate a defined intellec- has stated: r , �A, I g E tual thought; this attempted demarcation [W]hile the entertainment afforded by a '1,,, ' , !, would leave them essentially unprotected. nude ballet at Lincoln Center..to those tr ., ' t�'' The State in effect advances the propos who can pay the price may differ vastly +4`„ �.-' `' tion that the dance involved losin content (as viewed by judges) or;,_41 =`'` ". es its ex J g ) + z': R pressive qualities as the dancers lose their' quality (as viewed by critics), it may not + w ( ' ti clothing. It is well established, however, differ in substance from the .dance ▪ F '' t ml, re 9 that "[n]udity alone does not place other viewed by the person [at the local pub] £ ,` wise protected material outside the:mantle Salem Inn,'Inc. v. Frank, 5221.2d 1045 ` 4 of the first.amendment." :Schad, 452 U.S. (2d Cir.1975) (quoting Salem Inn, Inc.`v `M I 'i at 66, 101 S.Ct. at 2181 (citation omitted). Frank, 501 F.2d 18, 21 n. 3 (2d Cir.1974), < i ;. # Nor does the fact that the dance is sexual of'd in part, Doran v. Salem Inn, Inc; ,,f"4 { i remove the mantle of protection: :`Sexual 422 U.S. 922, 95 S.Ct.;2561, 45 L.Ed.2d 648 s,�d*' expression which.is.indecent but not ,91?; ,. �;� (1975)). The State conceded as much at scene is protected by the First Amend- r i oral argument when it agreed that •the,'1‘. :; , 1 -- ment. Sable Communication_s v...FCC... - • .rFe:: .+�,-._ - - - — ' plaintiffs'precise dance routines would ter-a r >? 4 , U.S. —, 109 .S.Ct. 2829, •2836, 106 4; tainly be protected expression if they we're .,t; l L.Ed.2d 93.(1989). And it is immaterial for , t performing the same routines but choreo- constitutional purposes that nude dancing _., •; v < •, '' i, . 1; may•be performed for profit. See Joseph graphed as part of a graduate Ph.D.thesis. �i 4 r°'. Burstyn v. Wilson, 343 U.S. 495, 72 S.Ct. To determine whether this activity is suf # ° ' 'il f� t 777,96 L.Ed. 1098(1952). The State's posi- ficiently embodied with communicative ex 1; ' t j l . i` tion,.therefore, distills down to the asser- pression to warrant first amendment:pro- '--'°# tion that nude dancin ',x-t,. h{� g is distasteful and/or tection, we must ask whether "[a]n intent ,ry ,, .. morally repugnant. to convey a particularized message was t • f'- " While the ideas communicated by a par- present and [whether] the likelihood:was }r °''"�. 1 'i . j n titular dance may well vary according to great that the message would be under ;.,. t-11` r,1411the context in which it is performed, the stood by those who view it." Texas,S , r,, •{;;I communication of expression clearly'does Johnson, — U.S. —, 109; S.Ct. .2533, �� k,; t }l ; z; not. Attempts to distinguish between.ex- 2539, 105 L.Ed.2d 342 (quoting Spence v. :` .' ^ • 11 1' a, °4 .• pressive and nonexpressive dance are.mis- Washington, 418 U.S. 405, 410-I1, 94 S.Ct. ,. � t- - j,, R i conceived and bring to mind the words of 2727, 2730-31, 41 L.Ed.2d 842 (1974)). The %:i !;. •11 .. • Justice Harlan in Cohen v. California, 403 dominant theme communicated here by then , , i� U.S. 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d dancers is an emotional one; it is one"of `, f o {t„t .,it > �i , 1. � 5',^ �"% zip IS i,• q� ,:t1,�'�� �" " P ..,.a,r-. ��. '�h7-;�,,,'" ,.., .,-Ys.,:k: r .:�'ET.�"r.""'., ,�•r•":s'z---y,.-,:x-er_. ..... _. ., .. .... ... _ _ •. _.- CRIES -'x p MILLER v. CIVIL' CITY OF SOUTH BEND 1087 J ,PI, :� Cite as 904 F.2d 1081 (7th Cir. 1990) ' [W]• :Ilk it is largely be- " , ,•' :;,' eroticism and sensuality.' Though -this Fort Lauderdale, 794 F.2d 1520, 1525(11th , mental officials cannot make ;<•-' ' ,- ':,dance is clearly of inferior artistic and Cir.1986)(citing Schad to support the prop- inctions in this area that the !`'_' : ,,:'-' aesthetic quality as contrasted with a clas- osition that "we may take it for granted Keaves matters of taste and :-```, " ` { � �;�,;_ sic ballet such as the Dance of the Seven that nude,dancing is constitutionally pro- ply to the individual." It is l• - , • ; `:3' Veils in Strauss' Salome, the erotic mes- tected expression, at least if performed in- the purposes of our ry i in u '" .- f.-.>. q .w,' 4; x -• -t;• sage communicated to the viewers 'is doors before paying customers and not in a ind the expression inherent in !- „i; , _� i .xp �. present in' both ' performances.: That street or park before casual viewers"); L:« - ' Strauss' Salome'tells a compelling story Krueger v. City of Pensacola, 759 F.2d to be at odds with our partic- ~=W_-=`` ';, �'`r:, st last Term-the Court re-af- 'S,., , �J ,.;'s:, and the nude dancing at the. Kitty Kat 851, 854 (11th Cir.1985) (in addressing or di- -that "[i]f there is a bed- - . t• is=,. •,.=;-.• Lounge may not is not determinative; ex- nance barring topless dancing, the court underlying the first amend- }",` ' pression does not lose its protection. for noted that "we.are bound to treat topless L °'' lack of a scripted plot. And it is apparent dancing as a form of expression which is it the Government may riot >� �`' }` that those.who view the respective dances protected at least to some extent by the cpression of an idea simply "';1 . : > First Amendment"); Key, Inc. V. Kitsap '1: readily.comprehend the intended messages, y finds the ideax itself offens° ' :zv', +_,•. County, 793 F.2d 1053, 1058 (9th Cir.1986) aeable." Texas v. Johnson� �&F° ` " s~:��. . for they advance currency to. view them. 9-' ' ;"•C' The success of both the ballerina in an (relying on Schad and Doran for its deter- 109 S.Ct. 2533, 2544, 105 t°�• urination that "topless dancing [is] a res- ,,�,:�c��,;y��%', • erotic production and the nude dancer in a P xP B89). As the Second Circuit "lr barroom setting depend on the communica- sion, subject to constitutional protection ,i : .. within the free speech andpress aran- a_4s�`���',<:. ton of their sensual message. P � entertainment afforded.by a {`.-='' '' tees of the first and fourteenth amend- , <.�, As stated above,.dance as entertainment . ments"); BSA, Inc. V. King County, 804 at Lincoln Center to those .;:'r i - `,. • {;:, : r;-. inherently embodies the expression and F.2d 1104, 1107 (9th Cir.1986) (in holding the price may differ vastly )r° communication of ideas and emotions. 'The that nude dancing is protected activity, the s viewed by judges) or in :$. ' '=� State's reliance on the nudity and the unap- ., '' court found that the assertion that "bar- 'ce• by critics), it may not .' • . • a:: pealing nature of the dance involved;here ', u,r. P g room nude dancing is not First Amendment ei perece from the dance °_-:rgr• ,. ,g. do not serve to remove the partial cloak-of e pergnr, [at the local pub]. s„.,- ",,. activity because it is non-expressive and P ] r protection afforded by the first amend- lacks any communicative content"'is "con- ;. v.' ,sk, 522 F.2d 1045 ' • -•,• - Y ment. . Nude barroom dancing, .thoughJr troverted by Schad"); Kuzinich v. Coun- .,,- lacking in artistic value, and' expressing ty of Santa Clara, 689 F.2d 1345 (9th :uoting Salem Inn, Inc.-v: jns.,; �•,. ' d 18, 21 n. 3 (2d Cir.1974);: 4,`- ' :yss': ideas and emotions different from those;of Cir.1982). The district courts are in genet 9oran v. Salem Inn, Inc " <• E ,'.rII more mainstream dances, communicates al agreement as well. See, e.g., Walker v S.Ct. 2561, 45 L.Ed.2d 648 f , them, to some degree, nonetheless.,„--; :? City of Kansas City, Mo.; 691 E.Supp: tate conceded as much at t = Not onlydoes our holdingtodaycomport 1243, 1249 (W.D.Mo.1988 (citingSchad for when it agreed that the. • '' 1 •` _% . :`. with Supreme Court precedent, it also is in proposition that "since an 'entertainment e dance routines would eel.-.z`-7C-` : • #`. consonance with the holdings'of the'miner- program may not 'be prohibited solely*be- • bed expression if they were ;-~if`, _.1• ..,t,, ous federal courts that have addressed''the cause it displays the human nude figure;' same routines but chore.' ':;•'r'�'�;j..,. " '."-' ppe al -_nude dancingis rotected.expression under -- ,.... —issue The two Circuit Courts of-A e p of a graduate Ph.D.thesis. -'.,'-,* u,. that have'confronted the protections af- the First. Amendment"); Doe v. City of' 4 ` whether this activity is suf- %'' H' • forded nude dancing, the Ninth and the Minneapolis, 693 F.Supp. 774, 779 n. 12 ad with communicative ex- ` q-1p. r Y:. Eleventh, have held that it is"protected (D.Minn.1988) ("live 'nude dancing is also rant'first amendment'pro= , v 4; `'. n activity under the first amendment. _See protected expression under the First • International Food&Beverage System'v. Amendment").. 6 t ask whether "[a]n intent ' `0� s - - ' rticularized message was :.�.s, t•. 5. To the extent that the district court found piing,see: Stone et al.,.Constitutional Law 1167 tether] the likelihood was :`" ` •'. Y,';k' otherwise,we find that it was clearly erroneous. .(1986); Day, The Incidental Regulation Of Free r=, ' ' 1 ti .Contrary to the positions taken by Judges Cof- Speech, 42 U. Miami L.Rev. 491 (1988); Rice, message would be under-. :Y ''; r -• , , .,; ,,,,,,,, �,,,, ,,.;., fey (dissent at 1116-17) and Easterbrook (dis- . The Search For Valid Governmental Regulations: who view it." Texas,v. • ; i.F ,.; . sent at'1123-24) in dissent, the parties' charac- A Review Of The Judicial Response To Municipal .S. —,. 109 S.Ct. 2533, `"` :terizations(or the lack thereof)of their,artistic ,Policies.Regarding First Amendment Activities, • endeavours as expressive or nonexpressive, 63 Notre Dame L.Rev. 561 (1988); Giokaris, • ,d 342 (quoting Spence v. ttzl;z 'r': - , ' ` while possiblyrelevant,cannot be determinative ZoningAnd The First Amendment: A Municipal U.S. 405, 410-11, 94 S.Ct: `' `.k`;Yi. . , ' 'nor binding upon this Court for first amend- i s Power To Control Adult Use Establishments,- ' . L.Ed.2d 842 (1974)). .The .a='�'`",;;' -. ment purposes. -. 51UMKC L.Rev.263(1987); Note,,The Role Of f - Secondary Effects"In First Amendment Andy- .' communicated here bythe w r . ' 3 6. The commentators have agreed with this inter- sis: Renton v.Playtime Theatres,Inc.,22 U.S.F. iotional one; it is one'of .', • 1. p ) ppear .•,�!�1J; ., �._� pretation of Schad For a re resentative sam- 'L.Rev. 161 (1987; Poole,Architectural A :,l,,, a rn'( is.. ram' - p A,.. .j ti ic Fr, •• I.' is r.' I,; u F�, 1088 904 FEDERAL•REPORTER; 2d SERIES �� [2] Our inquiry cannot end here. Hav- strictly limits its.power." Erznozniksv- a 4.1 js•4r' ing concluded that the activity involved is. 1 'r � within the ambit of the first amendment, City of Jacksonville, 422 U.S. 205, 211,?95 we must the S.Ct. 2268,2273, 45 L.Ed.2d 125(1975).;;;dj8 y , =-. i statute is a next examine restriction whether thatIndiana we have recognized,. above all else,:the. ., N , ;') protect- First Amendment means that government' s i ed expression. Regrettably, Indiana does has no power to restrict expression ' I �i l'1 I: not record the legislative history of its stat- xA eesion because t �,. utes.; At oral argument the State asserted of its message or ideas ..." Americanw �I that the Booksellers Ass'n v. Hudnut, 771 F_.2d . , #i �`1 purpose of the public indecency 323, 328 (7th Cir.1985), aff d without o " 3• ' statute was the protection of public morali- pin;. Ey 'f ty generally, and the familystructure in ion, 475 U.S. 1001, 106 S.Ct. 1172,,' 8 ` L.Ed.2d 291 (1986) (Easterbrook, J. �� " • ' .�'�~ particular. The State possesses the broad �''` ' ' ) (quotes: , !r,;r powers to effectuate this legitimate and ing Police Department v. Mosley, 408 U.S ' f °; ;i significant interest throu h 92, 95, 92 S.Ct. 2286 2289 33 L.Ed.2d 212. E ' ,; .E g public edu- (1972)). To those who understandabl ,�„i cation and the appropriate exercise of its y find :. • x x ,i. {,' police powers. However, in advancing this objectionable the type of conduct sought to -kr `• rqH 1::. interest it must operate within the prescrip- be condemned by the State, we offer the ;= 1' 'i, �•, tions of the first amendment. prescription of Justice Brandeis in 'Whitney i, 5 It is a fundamental precept of the first v. California, to wit: "the remedy to=be'f7: .s ,,t r(,'{� amendment that all expression, whether.it applied is more speech, not enforced si �*• t "", 1'!.`<< is written, pictorial or by way of perform- lence." 274 U.S. 357, 377, 47 S.Ct. 641„''• - 1 ante, is presumptive) 649, 71 L.Ed. 1095(1927) (Brandeis J con ' •,4 , y protected against curring). +t F., •x , 1r ,; government interference and. restraint. h=E ' Doran v. Salem Inn, Inc., 422 U.S. 922, 95 • it o sx�"` • This is not to suggest that the State is;Z F` t 0 (1 S.Ct.2561,45 L.Ed.2d 648(1975). The first powerless to regulate the presentation-of - •• ` L - •,,,,;1 amendment does not discriminate amongdancing. nude On the contrary, the State _,,- ;;' ;, ideas. The messages conveyed by the.per_ retains a p great deal of control. A sower. t 6.,: ; l,, formances in question, no matter::how eign may establish reasonable time, lace '..•r;�: unappealing to one's personal value sys- and manner restrictions on protected e' tem, are protected nonetheless. Indiana's pression. 'I?enton v. Playtime Theatres;;=;-..• .- A. attempt to ban nude dancingin i "-•'`a'+�. pursuit of Inc.,.'475 U.S. 41, 46-47, 106 S.Ct. :92.5 ,�r',,;,. 2 its aforementioned interest is a forbidden 928-29, 89 L.Ed.2d 29 (1986). Such.le la;, -.„ interference and restraint because it seeks five power..,-un uestionabl "' -4 , l,11' q • Y permits ;the t J ik 1 to withdraw this non-obscene and protected state to bar the imposition of nude dancin : ='t . communication from the realm of public upon the public in settings such as streets q. discourse.'- :"When the government, actin parks and beaches. Similarly, it ma re ,. 4•! ? as censor,.undertakes selectively to shield late expressive conduct for reasons un1 0,-=•• . • _l I'llthe public from some kinds of[expression] related to the suppresion of s e��,. on the grounds that they are more offen- ed States u.0'Brien, 391 U.Sp367h88 S Ct s�R _asive than others, the First Amendment 1673, 20 r Wr° • t " 1 R r L.Ed.2d 672 1968. = ,. It may also .;„4. • t ante Review Regulations And The First Amend- i..�"`' 1 ment: The Good, The Bad; And The Consensus Speech—Regulation L.Rev.651(1985); Note,Freedom of � ,, ,'ii; ' Ugly, 19 Urb.Law.287(1987); Note, Trademark Speech—Regulation r Of Live Entertainmen; 96 ,_ , y[. Parody: A'Fair Use And First Amendment Analy- Harv.L.Rev. 231 (1981). .Lt • sis, 72 Va.L.Rev. 1079 (1986); Kellam.& Love- 7. In his dissent, Judge Easterbrook contends t 11 { s1 lace,To Bare Or Not To Bare The Constitution- that the statute is"unrelated to the su ression ? ^' a ality Of Local Ordinances Banning Nude Sun- of free expression." Dissent at 1120. The stated ('i)' bathing 20 U.Rich.L.Rev. 589 (1986); Rich & • �i 3;>; Brilliant, Defamation-In-Fiction:: The Limited purpose of the-statuteis the preservation of a' ,R'',+;.. q:'k #' particular set of views; those reflecting the'.=``,, ' { Viability of Alternative Causes of Action, 52 •Indiana legislature's view of"public morality.": ;a.,•is i. �; Brooklyn L.Rev. 1(1986); Simon,The Authority t! " y In meetingthis intended goal,the statute direct- '% 4;-,4, , 9]` Of The Framers Of The Constitution: Can Ori i- caseis yX • 'nalist Interpretation Be Justified?,73 Calif.L.Rev. precisely becausects activity xp esses context in the particular m_,_:,`'. Jl i 1482 (1985); Yen,Judicial Review Of The Zon- sage contra IA `;t; ing Of Adult Entertainment: A Search For The g contrary to the directlyl related prescribed vi-`. : ::.. t Purposeful Suppression Of Protected Speech,-12 ion. As such, it i to the"sup >;'^: '; P pression of free expression. r • c � •'%*. 4, hl4,-* 1- 4t,:6:at`'4`z`,V N ..xv. . .,.r71i' _ .•• • '2d SERIES - ;r. e „,: . .`�x •f Y MILLER:v.v. CIVIL CITY'OF SOUTH BEND 1089 limits its „ :*t« :, ..,r.' power. . E " . ?;'•, . Cite as 904 F.2d 1081 (7th Clr. 1990) °Ja4,'- :„ville, 422 U.S. 2057,• s.1 {e nude dancing under the power of the Amendment seem, in these circum • - :68,• %,45 L.Ed.2d 125.(1e,_ - "Wit-by the twenty-first amendment. stances, in some-danger of being lost.' 'e recognized, "above.ally ,r4i ' `ornia v:LaRue, 409 U.S. 109, 93 S.Ct. 'It seems to me beyond doubt that a"bar= mendment means that g•'-':„ - (1972); City•of New- room striptease is "expressive." Even -if ,,g¢°:L.Ed.2d 342 lower to restrict expression-._„; `•` `'�:,t Iacobucci,•479 U.S. 92, 107 S.Ct. relatively restrained, as are the videos in nessage or ideas ,»,A..',4• - -ti 9g;-L,Ed.2d 334 (1986). And it most evidence here, a striptease sends an una= lers Ass'n v. Hudnut,a?Zl# • . . „y may ban obscene nude dancing. domed message to a male audience. It is a (7th Cir.1985), affd writ It` , + ;.�t,(eCommunications, 109 S.Ct. at 2835. message of temptation and allurement con- 5' U.S. 1001, 106 S.Ct. - : ., ife`':"the State's laudable -concerns pled with coy dints at satisfaction. In a 291 (1986) (Easterbrook �,T"` ;',, ,_y,� , � �,,. ; apparently are the bases-of the real barroom, messages would probably ;e Department v. Mosl n I.-statute, ey,�0$�jrT • •-r,,: : statute, the total ban at issue here also flow in the opposite;direction, in the'.=��•' 2 S.Ct. 2286, 2289, 33 L. ,.,, , ;not fall within any of these constitu form of encouraging comments to the per- To those who understandab''' •` . ermiasible areas of legislation. If former from thepatrons.2 These respons- able the type of conduct soti,, . . Y P P "`�5tate'wishes to regulate non obscene es speak tuned by the State; we:tiif�"'•� •_ '�� J'` strongly to the fact that a •mes- •ssive activity or public nudity, it may sage is being sent and received. It is also on of Justice Brandeis' �' '-,- ,�.. "" clear that the message of the striptease is 1n. ••so;.but only in consonance with the first rnia, to wit: "the.renietipo b • ` -• `dinent.- not a subject that the Founding Fathers t more speech, not enfo'`'`'f ; ' :`' 1,-i `' had in mind in drafting the First Amend- :74 U.S. 357, 377 �,� � �'"�' `• 47 $. ; r ;ter.:+,. III. ment3 That fact is certainly not disposi- Ed. 1095(1927)(Brandeis r :� -6:.1- ' ' "1" five, nor perhaps even probative, but it "yu9 - " � .;statute is unconstitutional as ap- suggests a need for caution in makingthe "i'.iil"' ,.'3 "�'srd'ir� ':". 'aAccordingly, the judgment of the gg not to suggest that-the .: ;;-; r Amendment do service in.situations as im- to regulate the presen ,,,, i' -1'1.,,, =court is REVERSED and the State is probable as this one seems to me. ing. On the contra "' +1+,+ed'.from enforcing its public indecen- .. rY;Ytheli«, .;y h.i0atnte, IND,CODE 35-45-4-1, against pOSNER, Circuit Judge, concurring in, ;rent deal of control.`dT "' plaintiffs to prohibit non-obscene establish reasonable., .- -, -r re` - the opinion and judgment of the court. ..:_ •. 0dancing as entertainment. r•rE '�:,-ions on:-pro' --7. k s.^`1.-,:; • • Public performances of erotic dances ' Ren P. Playtime ,,F " r debuted in Western culture in the satyr J S :j 46-47 • V g AHY,..Circuit Judge, concurring:. ; lO6 S Eti• y •` '.I:c':.:�' , -- plays of the ancient Greeks, were-sup- . L.Ed.2d 29 (1986)-L-ISu',` ,'•-;- -''-- reoIIcyr in Judge Flaum's excellentopin-. pressed byChristianity,..ty,..and,,.with Chris- Unquestionably;,;p;,' .1{,•'R-; , 'Tithe-court. He has effectively mar- tianity'sgrip loosening, reappeared in.the the imposition o£nud�i -' < ''-tiedhe:Supreme Court and other.au- late nineteenth;and early twentieth centu= • blic in settings;suc �77-, n ., atpoints in the direction of consti- ries. The ::rea eared -in- a variety '1 'aches. Similarly;_it,ma • ,naI protection for nude dancing.qua forms: as the can can and the music-hail give conduct for.}inato ' •inment That authority.compels.a chorus line, from which the Folies Bergere e suppresion-of speed-`..1^" ` 'y.,.that is_•correct in this case. -•-r, and its tame American counterparts—the e` O Brien, 391 U.S.36a88 *-, r' , -';- _ 1 $o4lowever,fhave concerns that'Ishall Ziegfeld Follies, and more recently-the Ra _ Id.2d 672 (1968).;�tIt:ti t1.„,,; ' .41 note." Despite impressive displays dio City Music Hall Rockettes and the shoo- j ,.Rev.651(1985)i.Noie;? "=°- c olarly analysis and broad-ranging rus lines in Broadway and Hollywood musi; dation •`T:r'.. " ,, n %` =i C Of Live'En a- on on all sides the need to invoke cals=descend. -As the Dance of the Seven 231 (1981). --•_.- `�' ''ta -t'Arnendment here strikes me•die, Veils in Richard.Strauss's opera Salome :.q M1 Z- . ';�✓�vializin a .. ent, Judge Eas�terbrook =•.�•- �`, � Q;•,; , , g.and, perhaps,. unworthy: (1905),.from,which the fan�dancing of Sally to is"unrelated erbro`,":., - "r ''a$PPliCation of the Amendment to these Rand and the decorous striptease of Gypsy ;ion. Dissent ai I Ito Iiie` '' .7' -' -correct as a•matter of law:')'•:I Rose Lee, or of Gwen Verdon in the musi= ; ' e.statute is the resew •:•-c r ''" :Nye . P G,,,, _� egg� e of the majority are doing:Whit what cal comedy Damn Yankees, may be said to' of views; those.;c•efl�.,"�,•_ L •- "awecommands but the high purposes descend. Ballet was nothingnew in the • iture's view•of"pubhei++., ' '� ;,'r ...-' , g P rP s intended goal,theatatute;• i-,;, `.has en to add,however,that I'do not think it 2. E.g., "Take it.off; take it all off!" '".- ,t; tivity in the;context of-i �-' . f ,�PPtopriafe to make fine distinctions between •ise it expresses_a parti=�,;'• .? favored entertainments of"Joe'Si. ask"and to the legislatures' r�- •-'r 3. No doubt, however, such messages—sent ac- �,. P. c e "Mrs-Gotroc se, As the majority notes, •cording to the style of the day—were known to,' Y ' it is directly relatedf."tam,+ a•' :_.Free Speech Clause, byprotectingthe free- the Framers. . e expression. ;�';z-iak -' , domyof expression,necessarily leaves matters of • -, IF ;cession and style to the individual. _. _•i-� ' ..,.. _3'," .,lira,__ �. y. f 3 ..5 ""a�`' *''.'''''A'' x ie 7 i,x '04.45'•r, ';'-4^'y.,. '. y .,,,S,k .'„ .3'.-, ,*". .'? e-.,;.*r •.i=r. * n: 4- 't , .a +f ,7.`+y r� : Wry:, , .1. ;-... t 'r_. r. .:..._ ,�. •, -,if 'e :''r . ...,l .Pfi fi`7-1+e_. r• ..i`b ..d.0! lr-3_h ._,. +...,. . .t. .;- -,.. ,%F 5..,_.. t_ :..,,a`'. ._ a,:'.--. ., s .. .. .+ 4 ,Si i 'r; t #, ( 109,0 904 FEDERAL REPORTER,. 2d SERIES N • ''„ t,r'-1: nineteenth century; but as the costumes of normal operation of the statute is illus. ri •:`: f' : ballet dancers became scantier, the erotic ed by Elliott v. State, 435 'N.E.2d'ionp •'` a ` element in ballet became more pronounced, (Ind.App.1982), where the defendant w•-0 Li c reaching scandalous proportions in Diaghi- convicted of urinating in.public. Howeve_ 4`"I' lev's L'apres midi d'un faune (1912)..(an in State v. Baysinger,-•272 Ind.. 236, 397,,E ` i• example, and not an isolated one, of male c" S., pN.E.2d 580. (1979), appeal dismissed fo )kP 4 1 erotic.dancing) and becoming a staple of want of a substantial federal question {` '':' distinguished companies like the New York r'Y�'�;;�� der the name •Clark v. Indiana, 446 U•S�; {' a ;. City Ballet and the American Ballet The- 931,.100 S.Ct. 2146, 64 L.Ed.2d 783 (1980); • r } ! ateor. "Modern dance," a ballet offshoot the'Indiana Supreme Court interpreted the,:'` .:' ,- r r ioneered b amon others the erotic �s� ti , g statute to apply to nude entertainment . "�: - } ' Al.:,If dancer Isadora Duncan, has longbeen ar " A ' p; - theaters, nightclubs, and other. estabhsh�;` '• Mai ;i+; J tial to nudity. Examples of erotic dance in ments open to the public. The interpre��' x'ili i non-Western cultures include not only belly tion was not inevitable. State v. Brooms° r ,;,J i dancing but also the overtly erotic nude 275 Or. 171, 550 P.2d 440 (1976) com .v u -`. 1 ?; ;8,. dancing of Les Ballets Africains de Keita P t E'� ' '.4 ' 'i Fodeba, which,but for its exoticism, would City of Chattanooga v. McCoy, 645 S.W.2d"� 1• 400, 401 (Tenn.1983). But, having;bee Lk a.411 be considered shockingly explicit. For re- f ' '+ made, it induced the Indiana court in Bay ;.. ,. t :4; markable description of fertility dances see ; Sachs, singer, in an effort to save the constitution ':'7.j,, ' • World History of the Dance 85-104 , <',ii 4 (1937); on erotic and nude dancing general- ality of the statute, to carve out an excep<• r�•., i � ton for performances having an-expressive;:•._ 1 t ;� ly, see Cheshire, Eroticism in the Per- f `' character. That is how the issue of "ex,�',`'= i + 6 forming Arts, in Webb, The Erotic Arts 297-306(rev. ed. 1983); Sorell Dance in Its pression got into this case. If the stnp`�•F3�WK.• I s;s'1� Time 425-28 (1986). The ]aw's efforts to tease dances that the plaintiffs want to pui"•`, . i +`•� on for their customers are not expressive ;,,;._ • .n.:,, restrict such dancing are 'detailed in`'an then since at the end of the-dances the -.. Annotation, Topless or Bottomless Dane= '` = dancers are nude, the statute makes.tdie'�T-, ,'4 i ing or Similar Conduct as Offense, 49: ,. _ ;i.1 - A.L.R.3d 1084 (1973), 49 A.L.R.3d Supp..59 dances criminal. v e ; t f (1989): _ • Indiana 'is exceptional although-not.• 4- li C De gus-tibus non est disputandum;'but unique among •contemporary: ;American F•' i r_ y': whether one has a:taste or ardistaste for states in attempting, without recourse the Twenty-First Amendment, to im erotic dance in general or striptease dances tY- poser 4 t .,,Tap,, ;.''. in particular, to say as the':district judge state-wide ban on erotic dance perform,+ --.> -1 did in this case that a striptease dance.is. ances that are not obscene, merely because;:;•;•.. B.Y theeperformances involve nudi and ra=''`, not-"expressive activity, but "mere con= ty=-: -, i-'' ' ?`1 duct," Glen. Theatre, Inc.-v. Civil City:of bare breast is nudity within the meanmgo ; ;, # -� the Indiana statute. : The statute's reach ":# South Bend,. _695 F.Supp: 414, 419-.(N.D. 411 ; Ind.1988), is indefensible and a..threat;to may be an accident of interpretation zThe w`,'•,. r '1., artistic freedom. This is not to suggest. intended scope may well have been,narrow4 �•syft: that the State of Indiana has no power to er;. and a differently drafted statute cony 4_• 'k, i1 I _ regulate nude striptease dancing, it.'has as I.shall explain, achieve the state's:legi ; 1;,, I lis: ample power. But to try to us ' that imate goals without raising serious constt� *A jy < , power, as the district judge in this case tutional questions. So this case may )e s y,:. . ",. 10= tried, on.the ground that such dancing is something of a.freak but it is a fascma -��` . t )„r Y i fir not expression is misguided.. And, as the ing freak. . Y�4d ,i,, 1 • , { parties have framed the issues, no alterna- If the district judge had said that the F•„ ' �l.£ tive justification is possible in this case. dances in issue are not classy, he.would •, ;;ii The qualification is an important one, and I .• • , 4;; have been,on sound ground.. The record `' �, shall return to it. contains a videotape of the dances that the r• ;,7 An Indiana statute makespublic indecen- T '- ''= proprietor: of the, "Kitty Kat Lounge'; * 1 cy, including appearing nude in public, a would like to exhibit. The name:of:ttie , ; y i; crime. Ind.Code § 35-45-4-1(a)(3). The establishment.does not promise high cul' 1H p ' '�'� ti to r. ti -. . fi :' _ � .. , 17xL �4 • it- •4 S. a- �t ,4 + 41' Y S .%;fir 4 a . 1 BN � r :_..-'„• : � - r �•(4n5Fi r, ,y 1;7't "�'a+ s � ��_�6,_ _.,-. �-�x .:�ari�gar.�'�r��?a �x��z;:��r��;:,sa�5 �:r'ifi��rr:a'� �:��a ;5. _ ., "1 IES :-,7:',,ft,, .22 ,-,., MILLER v..CIVIL,CITY OF SOUTH BEND 1091 u Cite as 904 F.2d 1081 (7th Clr. 1990) i of the statute is illustrat. ' $ tore, nor the fact that it is a bar rather Kat Lounge. If this reasoning is correct, 7. State, 435 N.E.2d 302 . -`, '.,.',.';.,,''..';,,,;''t .than a theater,nor(a related point)that the the arts are in jeopardy. • -•,; where the defendant was °`t;'• „ 'compensation of the dancers depends on Dance, as Judge emphasizes with at in public. However '.` t pertinent references,Flaumis a medium of t ',�°��xf=•�, the number of drinks they induce apprecia •- singer, 272 hid. 236, 397 r�W �' r 34; five customers to buy after the dance. The pression, of communication: What it ex- 9), appeal dismissed for `': ':7`h lua' dancers are presentable although not strik- presses,what it communicates,is,like most • tntial federal question un- " `. „a „inn young women. They dance on a.stage; rt—particularly but not only nonverbal art • 'ark v. Indiana, 446 U.S. .`; ' • . �''-;"?"-with vigor but without..accomplishment, to emotion,or more precisely an ordering of 46, 64 L.Ed.2d 783 (1980) = ` ' ' ti the sound of a jukebox, and'while dancing • •§;�;•,p��� ,�,•-;��;�, sights and sounds that arouses emotion. eme Court interpreted the ,4 , " they remove articles of clothing(beginning, Ballet is "an exact and flexible language to ,:,: ', - . to nude entertainment in ."�`'�.�„`i.� {,���r#?;;�:` for example, with a glove) until nothing is ,. ,, communicate formal fantasy." Denby, ibs, and other establish- ; ;'Ls rz.1 `ti left. Thirty years ago a striptease that Dance Writings 507, 509 (1986). "Inyour ,e public. The interpreta- :$e ' '-, `,-•. _ ended in complete nudity would have been excitement as you watch the quick dancing, ritable. State v. Brooks ': ,. 7: ;� thought obscene. No more. It is worth ' it will often`evoke in passing an intensely P.2d 440 (1976); compare v *A,{ 1.. s,:-. pausing a moment to ask why. Nudity as poignant fantasy image of human rela- oga v. McCoy, 645 S.W.2d 'te 't rt . .titillation or outrage is relative rather than tions." Id. at 512. "Susceptibility to ballet • 983). But, having been . ,,•; ,, �, absolute. In a society in which women is a wayof being susceptible to animal the Indiana court in Bay- , `..y ,; i.,; `, customarily go about in public bare-breast- grace of movement" Id. at -530. Erotic' -t to save the constitution- °.n 1''-' ,' ed,there is no shock value in a bare breast, , dances express erotic emotions, such as :e, to carve out an excep= . 2 3 while in Victorian England, where decent 7 - sexual excitement and longing. Nudity.is ices having an expressive rt.;_ '•` ;• ,t;,,, *omen were expected to wear dresses that the usual state in which sexual intercourse is how the issue of "ex= ;=" "' -'' ; ,reached from the top of the neck to`the is conducted in our culture,and disrobing is " ' - � '.>=° floor—where even the legs of' furniture l this case. If the stripy.'p"',����'� � gpreliminary to nudity. But of course nudi- the iffs want to put _,J; , were sometimes clad for the sake of decen- ty and disrobing are not invariably assocr" " . ````,.''^ --t_ a bare ankle was a sensation. :Since mer. , not expressive; ;;;` ;, ;� ' y, c3'- ated with sex. The.-goal of the strip= - E end of the dances the `'tx4 `' ,-?,"then female dress has become progressive-''' ``` • r ;:1 J'.`less modest, and today many decent tease—a goal to which the dancing is"indis- the statute makes•the . .-..- ,. ; ,,sy : enable—is to enforce the association: to ; t"`.• w ;'.women appear in public"in states of: p = "%.7.1,• „?'`R;.•,dress (mini skirts; hot pants, slit skirts, make plain that the performer is not re= aeptionaI although 'not : ;: moving her clothes because she is about to -�r tt qr=body"stockings;'see-through blouses, decol- take a bath or change into another set of . �. :ontemthout . .American ,.` • + let' a becoming" outright to less 'evenin ,; a ,-1 " g gp g clothes or undergo a medical'examination; " ' ng, without recourse to n i wear) that would have been "considered m 4,t Amendment, to impose a"'-: .. " prostitutes, to insinuate that she is removing them be: . ,: a ,��-• � � nakedness,= or the garb of thir- i"- I erotic dance perform r :. t `•., cause she is preparing for, thinking about; • :.. tY years ago. A striptease that ended in a and desiring sex. The dance ends�wheli I obscene, merely because " , ,, ,STc _ degree of nudity no longer suggestive-of involve nudity—and a ., :: 7 preparations stripteasethe re 'rations are complete." The sequel ,� ; :: re arations for sex—a that left p li " R. within the meaning of a 'the stripper garbed as she-might be for an tyis left to the viewer's imagination. This is R. The statute's reach ',4 ._ �� " expedition to the supermarket—might lack the "tease" in ``striptease." s t of interpretation.-.;The retation..:The ,,�;,. a `1 Yf� • } ,"erotic punch today. " "" Because the dancers at the Kitty Kat l well have been tta-- - ,,;. r y}x LL In anyevent there is no contention that Lounge are not professional dancers, .be- ` ly drafted statute could, ,, ,_ achieve the state's-legit- ,1, ''y is ` fix;_-the stripteases of the "Kitty Kat" dancers cause three of the four dances were.not , ;,i , , -are obscene:. It would be difficult to make choreographed,because the music to which it raising serious consbe r`.,, 1 So this case may be ';,,��`'. ��4�1. such a contention with a straight face at a they dance is canned,and because the"danc- . r •; E: -:'- time when a career respectable in the eyes ers sell drinks to the customers afterward, `:. ak; but it is a fascinat- i' ' .; •. • . � ,-,,; of many people'can be founded on posing hi it is tempting to suppose that the "expres- }: „the nude for men's magazines:- Douglass sive" elements of their "performance"...are idge had said that the " ' ,� r, V. Hustler Magazine;'Inc.,:769 F.2d 1128 phony—that the dance and the music are e not classy, he would "` `5• ' ' '(7th Cir.1985). "The contention, rather, is figleaves to conceal the absence .of: fi.. id ground. The record . `' ` ,k :? that the dances are not expressive, so the gleaves. Probably the supposition is error , e of the dances that the ";°; .° 'i" First Amendment does not"protect them,so neous; certainly it is..not backed by ,evi,,, "K Kat Lounge" �, ` ;t,• "there is no obstacle to enforcing ..the dence. The striptease was not invented-in bit name of the _ j ;'' ;f;: Indiana" statute against the dancers and order to place a cultural patina on displays not. promise high cul § their accomplice,the proprietor of the Kitty of naked women. Of course, there would a ` ` Oro i .?• i R. lit 4 , •A'.��1 r J, 1092 904 FEDERAL'REPORTER, 2d SERIES. - ' �r by "; ; �; jr` ii: I' be no female stripteases without.a prurient . enormous range of communicative activity .?;, �`- t (q; 'a, •interest in the female body; but that is-just is within the scope of the First Amend .. t rt,' - 4 • to say th at there would be no erotic art ment. Social dancing is not. City of Dat- 4t,-4.- 4,A,:.,:, It f: is t �; , without Eros. Though there is no strip- las v.'Stanglin, — U.S. =,--109:S.Ct. .71 , •,, 44- tit ., tease without some,stripping-in today's 1591, 1595; 104 L.Ed.2d 18 (1989). Nor is °{ V '�# f ,1, moral climate,without a great deal of strip- casual chit-chat. Swank v. Smart,- •898 R �_ 1 ping—the dancing and the music are not F.2d 1247, •1250-51- (7th• Cir.1990). •' But i,� 4 ' s }'',I' distractions from the main theme, patched what is excluded is rot excluded because it . ,? r: ` )_ •'• + €',l+ - on to fool the censor; they are what make is not expression; it is expression. ,, .i ,^_: # , st, a given female body expressive of a specifi- f , 4 a ; ; ; Let me try to refine the distinction be= �''P _ s j;E: tally sexual emotion. ••The striptease is 'the Y ; • t tween the expressive and the protected ' • ' I , `• ensemble of the music, the dance;the dis= with the following unrefined examples: . •a ;rt 1;9! robing, and the nude end state; it is more videotape of a couple engaged in sexual c , . �` - ; erotic than any of its components; andt ; intercourse, filmed without their knowl- 'a f, ',,f , . what makes it more erotic'than the body ,=i • ,t ; 5. s.,. edge and exhibited to the patrons of the • k 4,;i` itself, or the disrobing itself, is, precisely, Kitty Kat Lounge; the same videotape, - t,` - <. that it is expressive of erotic emotion. The . 2t l',,r!i'+ p made.to be shown to psychologists special; .:P..... �, State of Indiana may be empowered toli 1 .4. �, ;! izing in the'treatment of sexual dysfunc ., ' i.•' _ x {��}$ regulate or even suppress it,but not on the I Ili ground that it is not expression. Lion; a videotape of a couple,also"engaged ,� ' wed • X.. ;. • •' •, • • in sexual'intercourse,but the man and the ' ; % i€p .The conclusion that striptease is an ex , '. . . . . woman are actors who endeavor by their G` li>9r pressive.medium.can be. resisted on,four ' movements and expressions to maximize;` •"' }• • xP 5 1` ,: 413* _ grounds: the conclusion leads to a reductio the emotional impact of their act on,the.. . i, ,;4- i; ' ad absurdum; the only expression protect- p . ed.b Y•the First Amendment is the:ex res- • viewer. The first videotape is not expres ti Y P sive,' but. is ...obscene (nude, sunbathing s,� • w ,; 3 sion of ideas and opinions; the amendment t does not protect_mere entertainment;"•the would also be nonexpressive,but would not 'r r a ;r 'l amendment protects speech, not~conduct: be • obscene)• • The second is neither. The t Z., �i 'id i, -, _ . ---: , •. �::: third is expressive and obscene. The third;: �',. s; ::1.:;It,is,tempting-to argue that a,strip- is not saved from condemnation.becauseit, # ' "� tease just can't be expressive because if it a ressive. Most orno a h •is a res ''' -_' •')1 1 xP. P b''r P.Y xP - Cif , is then ;everything is-including kicking sive, indeed expressive of the same emo- s `' ., :r, one's wastebasket in anger and.,putting tions that a striptease iptease expresses. The dif1 �,. ;- '' . t ,1 - geraniums in a window box., These exam- ference is that.the striptease is not obscene � • , �` pies are not the same however:, There is-a by Iiiodern.standards.. ;,•y3; '' ,i:' . sense in which everything we do conscious- ''' ly and much.of.what we do unconsciously If this analysis is wrong, our decision'in t., K , p : is expressive—is the.visible"counterpart to American Booksellers Ass n, Inc. v:Hud=` R �' nut, 771 F.2d 323(7th Cir.1985), aff'd with-` r • (or expression of) some "inner" mental r out opinion, 475 U.S. 10.01, 106 S.Ct. 1172 .... ` state, often an einotion such as anger or P ' ,,•,,l,t E fear or'joy. 'Kicking the'wastebasket'is 89 L.Ed.2d 291 (1986), is wrong. Indianap-ari: :, r , g „ �; ' }It,;fir expressive in this sense. But-the expres- ohs had enacted an ordinance forbidding; ;• 4+ sion that is relevant to freedom of speech; "pornography," defined•as "the graphic ;•X) r,,, T 4 and absent when • the wastebasket is'kicked sexually explicit subordination of women" a ` ,.- E1,6 in private, is'the expression of a' thought, through various'"means.including pictures' .-• , }' . ;;,p x9,; sensation,'or emotion to another person. of women.in. .postures or positions off e F 1' This is a narrower concept of expression display. The videotape of the Kitty Kat°�, J.,b { =e-; . • than the first but it is of course enormous- dancers is pornography within the meaning- ,, ,, ' Y��, ' , 1 ;1 3' , ly broad, encompassing not only the gera- of the ordinance. We held that the ordi-i . a`.-, mum example but the whole field of human nance violated the First Amendment•bel,,v , communication, verbal and nonverbal. "We cause it was.an effort to control the way„, x communicate with each other by dress, people think about women and sex. •:Nei- f ,�•, r a;k' ;1, e • grooming,, deportment, and gestures,.:as ther the ordinance,'nor our ground for:in:�,. , $ '" `' `�t fi' •t • •,x. well as by words. Not everything in this validating it, would have made sense .ifrii'N" ? of, ♦ 1I . E" '".r it i I. ... , t a rA< Y -- ...,........:.....-....a-.....n..o.'n.«..- v,-m�.ne+-.->.,_.•�s�-m,a s.aeu+t-r,2e'^.qw:-r,...n-t••++^y,^'••.. ^S" y°"C";!":•%'...4.•5'i��•.�y, I 1.'Vflh `IES MILLER v. CIVIL CITY OF SOUTH BEND 1093 " `, ' ' Clte as 904 F.2d 1081 (7th Clr. 1990) of communicative activitg''"`"� r: , - :'pornography were not expressive in a or military affairs. Music that imitates the. 4`x� :ope of the First Amendx;+:"'`. .. :'':'sense relevant-to the First Amendment twittering of birds does not convey an orni- ncing is not. City of Da6)Y��'• '., ;�.;�The doctrine that forbids restrictions on thological "message," and Gustav Holst's — U.S. —, 109:S.Ct-' :„•=r. - ;' ';:speech that are based on the viewpoint of The Planets is not a treatise on.astronomy. L.Ed.2d 18 (1989). -Nor ris--° .;, '. • .,the. speaker is a.doctrine of the First Some nonvocal musical works convey sim- z.,r ,. . ,•,., Swank v. Smart;`°•898 4'.y�•. ., ,,.Aiiiendment; its invocation presupposes pie narratives, for example the story of the D-51 (7th• Cir.1990). •;But;r''" -'F: - }-,that what is being restricted is speech. An cathedral that rises from and sinks back i is not excluded because`it iY 1 ordinance that forbade nude sunbathing into the sea, "told" in Debussy's La expression. „ ••r ?'4;'¢ould riot violate the First Amendment Cathedrale engloutie. But narratives are. m it is "-': Yt� ,, ,even if the purpose was to change people's not ideas, and anyway a striptease is' a ► refine the distinction be,' i=',•. '' • flunking about women and sex, because it narrative quite as elaborate as that found •essive and the protected r'�" *• < o "speech," in pantomimic ballets (such as Romeo and e'd,-;44. • , ,.,,would be prohibitings eech, however ng unrefined examples: ,ia ,r,.;3 '''•°R';.broadly defined. People v. Hollman, 68 Juliet) and more elaborate than the narra- couple engaged in sexual;� , dr.,N•Y 2d 202, 507 N.Y.S.2d 977, 500 N.E.2d tives in wordless music. Most nonvocal' ned without their know]- s". 297 (1986); South Florida Free Beaches, music has no verbal—paraphrasable—con- ited to the patrons of the. ,�'�"<. `1�+�,.`"'` tent whatsoever, and much of it does not -,:s.,�_��, i;:;Inc. v. City of Miami, 734 F.2d 608 (11th age; the same videotape;.;:t-;-;;F, • x pornography h even express a specific emotion. ,, ,Cir.1984). Unless nonobscene vn to psychologists specla.4'' ; -''4 a~category that includes nude striptease atment of.sexual dysfuno-;.b,,r,--, Admittedly, not all thought is verbal, es dancing) is speech, the Indianapolis ordi- e of a couple, also engag r,..;,�<• �' °-" " pecially if "language" is narrowly inter- .....-if "•,,Hance could not have violated the First curse, but the man and.th?;' �t A ' '-Iliiendment. preted to exclude mathematics and other {` ` �' - nonverbal s mbolic s stems. But even;if !rs who endeavor by their'.,` - • i -.�w ..: y Y > �,; ik. , • ,, s�,2...The second argument against ac- "thought," "concept," "idea," and "opin- expressions to maxima e � ,: ,. knowledging that striptease dancing is ex- mpa;-- L" their act on.*,,the'*,....,, -, s.,r.. ion" are broadly defined, these are 'not ,. . .-e ression is that it is not the type of expres- what most music conveys; and even if mu- st v :'ape is not exp=e =,i; .-- i slop that the First Amendment protects, sic is regarded as a language, it is not a lbscene (nude, sunbathing:-:':.' , .,.. ', -:,:,b:ecause it is not the expression of ideas or language for encodingideas and o anions: inexpressive,but would,not. .c:= yrt:_: p ° t opinions. Indeed it is not the expression'of Insofar as it is more than beautiful sound he second is neither.j,Tie:,•', ive and obscene:-;.The ' ideas,or opinions (nor have the appellants patterns, music, like striptease, organizes,' y ' ever contended otherwise). But if this conveys, and arouses emotion, though riot m,condemnation.because -: e • y.t• ,'. -'were decisive against the application'of the sexual emotion primarily, If thestriptease; Rost pornography is exp ;`. ',, first Amendment, as urged for example in ?ressive of the same 9:A .-, • ,: dancing at the Kitty, Kat Lounge is' no < t :Wright, A Rationale From J.S. Mill for , ptease expresses.,,The,'di,,,df' '., ,,, t;.,„ expression, Mozart's piano concertos and . ,.the-Free Speech Clause, 1985 S.Ct.Rev: he stri tease is_not obscene'•1 ,+ ;.••;> Balanchine s most famous:ballets,are not p :- xr49 164-69 it would thrust outside _the • ,a , expression.- This"is not to suggest that. ldards. . -r :4 • , , amendment's boundaries virtually all non- striptease dancing is indistinguishable from : ; is is wrong, our decisionri f" 1' :;.,verbal art—except the relatively small frac- ` ` these other forms of expression. But they csellers Ass'n, Inc. V.Hind=, ' % ;1aon'that is didactic—and much- literature .•r ,.. cannot be distinguished on the ground that :3 (7th Cir.1985), aff d'with,, „: :as well. The implications for nonvocal mu- i U.S. 1001; 106 S.Ct.-1172;`-, ; r1-'sic''are particularly arresting. By straining a piano concerto and a (nonpantomimic); .,c4k. - . „ .sr.... ballet express ideas and a striptease ex- (1986), is wrong. Indiana£,,,,4, ,3`,one can perhaps find "ideas" in a few tone presses emotion.. If the concerto and the ,d an ordinance forbidding •• .. #poems and other programmatic music. For ballet have meaning—and I do not doubt defined as "the grap1i ,.e -• , :'.�•, xample, the opening chords of Richard that there is a meaningful sense in which t subordination of women"'; - °',Sfrauss's`Ein Heldenleben(A Hero Life) they do— o has the striptease. i s means.including pictures.' �i u"'may be said to convey an idea of the heroic. , j- lostures or positions of: << ".n ;;,,But what is really being conveyed is not an Pictorial art is in some ways closer~to videotape of the KittycKat>``=- - .")?:'idea but a feeling, a feeling of grandeur striptease than music is, because so much • )graphy within the meaning'" :'--• • ;' that evokes or enhances the idea of the painting and sculpture are of naked worn :e. We held that the oid,- *. • •jlieroic, and in part the feeling is conveyed en. The distinguished collection of Titian- 't- the First Amendment.li ,,, ,, (or. m identified) by the title of the piece. _nudes in the National Gallery in Was g a effort :- to control the' ,., .,#•Beethoven's heavy use of march themes ton includes Venus With a Mirror, which • lout ' ' en and sex."',:Nef,' .. .6,:,lends,by association, a martial air to much depicts a voluptuous, coiffed and We- r ,- -of his music, yet it would be odd to de- welled, golden-haired woman—nude within ace, lur ground for:ii► , ,. ,% ,_;, , : vould have made sense ifs` .` ° •1 Scribe the music as being "about" political the meaning of Ind.Code § 35-45= a . f `ref,M1,qI •#'..—. a�'iA"A `� er{ • 1 4 1 I..:. l' a .: � ' • ' ` f 4'a 1_;' 1094 904 FEDERAL REPORTER, 2d SERIES • } ° .-•`: a a j , 4-1(b)—sitting on a couch and lookingat most of us obtain no enjoyment `"t g j yment.from.ark!,...• :> ' her face in a mirror held up by a cherub It requires an educated taste.to distinguish `t. , feet), ,'. "'� ;iS '. � � (Cupid—his quiver is at his. while Venus With a Mirror from a camp photo 4r. ; • , another cherub hovers beside her waiting of. a fat woman. Knowing that it is a ,a x # ;t., l • to crown her with a wreath.. .Walker,.The cultural monument we assume that its sig; - 1•C ° National.Gallery of Art 209 (1975)(p1. 259). nificance must be intellectual, since it js a > s + � The painting does not express an idea, a dead to most of us emotionally. But the z j .• thought,or an opinion. It is riot a sociolog- 1, g painting is not an intellectual statement i - ,' • li,:4 i k • ical account:of a sixteenth-centuryVe- there are no ideas in the painting. } 4 -_;' 4, t if netian woman's toilette, or_a treatise on kin if " 4 i,11�, classical m holo would be even clearer if one were speaking 1. },F I 1 i mythology. It uses that mytholo- of abstract rather than representational t•I 3 ;' ; :'° gy as a source of iconography, and to the ti- � r�� painting. . There is pattern, design, harmo-' ���°� .�, • 4,ir extent that by doing-so the painting evokes r L .,a t= ; ' the story of Venus it may be said to have ny, and color in abstract painting, and *„' , ti r, i these attributes evokepleasure and other • '• 1 f1 ,; narrative content; but so does a striptease.. , �` What the paintingprimarilyemotions in an appreciative viewer. But ,a,' ' • n;y` conveys to the �o' ilE- viewer is not a story, let alone an idea or there is no story, no articulable idea, 'no ,• '•'.. t Slr an opinion,but a complex of feelings—feel- worthy meaning. The notion that all'artF +.t �' 1� ings of voluptuousness, sensuality, beauty, worthy of the name has a "message �s4,`i il harmony, philistine, and leads to the weird conclusion` ` t I �;: sumptuousness,sexual allure we E know what Venus is the goddess of). ( ' that nonrepresentational art and nonpr o-� t ,, a� ' 1f1. , - grammatic, non-vocal music are entitled to,c ;=,,A ' , ' ; r We might try to close the gap.between •less protection under the First Amendment-J..-*=. " :p,�,'• the intellectual and the emotional bysaying • - 'c • i ,- . Yl g than striptease dancing because the latter, :: • a that the painting expresses a concept of has a more distinct, articulable message r 1s4 beauty, of opulence, of balance, and so I And likewise that Beethoven's string quay° forth. But.among the-"so forth" are femi= tets are entitled to lessprotection'than�' 4 r°� nine sexuality and desirability,-and if these t f" -.- are "concepts" in;,Venus With a Mirror Peter and the Wolf. ;fie , ;sib {{ II � they are "concepts"'in a striptease (or in a I said earlier that nudity is ,a relatie ' e Playboy pin-up) in just the same sense' concept. The bare breast of Venus in Ve ,� t4. ,. . P ' ., S,- F The-striptease version is coarse, unsubtle, nus With a Mirror is tame.stuff by, mods, a',,,; a' " "artless, even -degraded, but the',two ern standards and this tameness may lead ' " ,- works are "conceptual" to the same'de-. us to downplay or even overlook the eroti k # ,, � k1, l� ,x• ,L, gree. 'Feminists forcefully assert the Conti- element in_the painting.• If we consider` , ' 'a.. nuity of high and low culture:."Within the -:-instead the-nudes of a great modern mas, ..-, „n history .of art, the female nude is a ter, such,as Balthus (Balthasar Klossowrt4 e,. `'-':A14!': ; paradigm of Western high'culture with its ski), we cannot overlook the rimac of the �z:rh • P Y. . .. 1 , network of contingent values: civilization, erotic in nude painting. ,For examples,.,.see i'`•` ''' edification, and aesthetic pleasure. The fe- Alice, Nude With a Cat, and The Room,"14 male nude is'also a sign of those other; Rewald, Balthus 28, 117-19 (1984) (fi .�3.5 ,..' g t 4 more hidden properties of patriarchal cul- and '}I t(: pls. 31 and 32.. .Balthus's eroticism ; °,; ture, that is, possession power and subor= ) `'.• l=- . ` 11., i happens not to be of the innocent.;arid i�; dination." Nead, The Female Nude: Por- wholesome variety; it is sinister, creepp;4' , "2- '#L•. : nography, Art, and Sexuality, 15 Signs obsessed with the bodies of prepubescent r. 323, 326 (1990). The feminists have a girls (girls Lolita's age), "Freudian,"..;at' . r �;.. point, even if it is overstated; a.more neu- ,,, . ,� times sadistic: Balthus is a great•artis0, 1, - ,,. tral observer(criticized by Nead,id..at 332) whose artistic interest in the female body;is ' t a;• *i� , has called Titian's Venuses "highly erotic prurient. Strauss's Salome—whose Dance � :,t tea' .., ;„r •.!, and presumably highly effective pin-ups for of the Seven Veils is everyone's favorite,' �1•�`.• . i11;.,i,�t.I. the rich and powerful." Webb,supra, 131. example of constitutionally protected strip ,. ":{ ` " �` The reason we think that art is an intel- tease—is a classic of.fin de siecle:dee- , },1 ;., lectual medium and therefore has nothing adence; it is surpassed in unwholesome- �� . ? important in common with striptease is that ness only. by Oscar Wilde's play Salome, ar =� .. f( ,,IL�ji tlj '�tt Y3 N yj, '• 1:' 'ems u i. SERIES . MILLER v.. CIVIL•CITY OF SOUTH BEND 1095 e"'R- if ysa Cite as 904 F.2d 1081 (7th Clr. 1990) obtain no enjoyment,from a 0',_' which supplies the libretto for Salome,-and The emotional element predominates in in educated taste.to distinguish a ' `. .` °•'' YbyAubrey Beardsley's illustrations for Sa- much verbal art as well as in most nonver- a Mirror from a camp photo"' _, a;lome. The difference between Balthus' bal art. When T.S. Eliot wrote . Oman. Knowing that it is `. ' h resentation of the naked female body and x��,L...> ° ;P Highbury bore me. Richmond and Kew iument we assume that its sigA '' that, of the dancers at the .Kitty .Kat Undid me. By Richmond I raised my ist be intellectual, since it is Lounge is,that he is a great artist and they `knees t of us emotionally. But the`.l,:7_, `�;, ar'•e •undistinguished popular entertainers. Supine on the floor of a narrow canoe: not an'intellectual statemen i' •`;• •; It is-not a.difference in kind; it is not,a Myfeet are at Moor ate and myheart i ideas in the painting. Thy $ .difference between expressive and nonex- g n clearer if one were speakin' =, Pressive activity; it is not a difference be- Under my feet. After the event - g " ,F ,>•tween arty nudes and naked bodies. It is a He wept.. He promised 'a new start.' rather than representational sere is pattern, design, harmo- ',,' i' erence in aesthetic quality, and while .: I made no comment. What should I re- .. '' j.such differences can redeem obscene art, • . sent? Dr in abstract painting, and a� ' 'tiller v. California, 413 U.S. 15, 24, 93 tes evoke pleasure and other he°was not expressing an idea; he was an appreciative viewer: But , S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973), finding a form of words by which to convey ;tory, -a '" ,;;,, .''' ''' . ,'they cannot justify the suppression of the the emotion of sexual revulsion. There is no articulable idea, no- F� ' •nonobscene. ng. The notion that all' art'' ,';; L• an analogy to the distinction in copyright e name has a. `"message" is;: _-' .; - . -�,{Some paintings—Rembrandt's portraits, law.:between idea and expression. Eliot I leads to the weird conclusion - '',, .•°;, , for example—we are inclined to call "pro- could not.have obtained copyright protec- asentational art and non ro-r i " - Mound:"found:"• This usage is fine, provided we tien for any of the ideas that might be Dn vocal music are entitled to':•F.: :'"•: understand that the profundity in question extracted from The Waste Land by para.- i under the First Amendment `;: `,• '' is not intellectual but emotional. Here is a phrase: in the passage I have quoted, the t ; ;•;description of the self-portrait that, Rem- idea that sex is sordid and disgusting. He �e dancing because the latter �i .. .• . .f . . .. !� g• rr t'• ', hrandt painted in-1659 (Walker, supra,'.at •could obtain •copyright •protection only for lists' rticulable message r • that hoven's string quay';� .4; 271 (pl., 357)), three. years ;after he had the precise verbal form in which the idea led to less protection•.than T="' . •s� declared bankruptcy.` "He saw reflected was expressed. It is the expression that Wolf. ,- 4.ti`�,,~• , - ' [in:,the mirror from which he painted the gives the idea impact, just as it is the ;,fix ,, ,' • M .portrait]•a face lined with age.and misfor= dancing and the music and the stripping er that nudity is a. relative .1. 'tine. He•saw eyes which had searched a ' f�' �,.; .,. Y that-give'the nudity of the striptease danc= • bare breast of Venus in•.J.e •� - more profoundly into the human soul than er- impact: The idea in itself is nothing !irror is tame stuff by modAj • ', L those of any other artist` He saw a mouth banal, undeveloped, mostly false-just as and this tameness may lead< _;,: nd;chin weak,infirm of purpose;.manifest= - ? V or even overlook the erotic •`'''''*:'' '''.' `'� mg that flaw in.his character which had nudity in itself is nothing,'or very little, : • c - ": These are just the materials from which a painting. If we conside. - . ur:ruined his life.-"His hands are p� _ grasped •as des of a eat modern mas- - 1r -_ .._ - the great.writer or the popular entertainer--c.- - 1;7 ---o,,,_':., ` 'a though,in anguish at the spectacle of a makes the emotional brew that we call art c, 3althus (Balthasar Klossow- F ,: , ••, self ruined man."There exists•no painting or popular'entertainment. In either case overlook the primacy of the- - :. _more.pitiless in its analysis or more pitiful , , : ' •• ' tMi.. - the'artist s business is emotion, not ideas. painting. _For examples,,see 3� }. : in its implications." Id. at 270. "Analy- Of one literary artist Eliot said, "He had a ith a Cat, and The Room,-in -s,� ,-sis" is being used here in:a special sense. mind so fine that no idea could violate it." is 28, 117-19 (1984) (fig..35 "w.t,�*' ; F There is nothing discursive,verbal, intellec- . d 32). •.Baithus's eroticism,gf •• ".- Henry James,,`in Selected Prose of T.S. . :, teal in the portrait. It is not a commentary Eliot 151 (Kermode ed. 1975).; o be of the innocent and - -. on bankruptcy'law, human weakness,"4 or . -. . . . , . iety; it is sinister; creepy;: °m '� social injustice. It is the pictorial rendition One can argue from the text and back- the bodies of prepubescent .:w. ._• ; :t, of the emotions that a man in-whom great ground of the First Amendment that the lita's age), -"Freudian, at �':•;, •,', _"`' .. ;;talent-is mixed with great weakness might constitutional protection. of freedom._of Balthus is a great artist''�..,:."``'- • •;',4i:' feel. . The mood-is remote from' that of speech is limited to the discursive and the • iterest in the female body is . •'�. `'_-.Venus looking`in her mirror but the differ- didactic, that nondidactic art should be-to- iss's Salome—whose Dance.; x f �a,.•. • , `a_- ence has nothing to do with the epistemic tally excluded, or at the very least that reils is everyone's favorite'`%,T' ••' _.: character of thesepaintings.' The'differ- low-grade erotic entertainment should be= . ;titutionally protected strip= ?.;;- ,• ' ,,,:,• ence between the intellectual and the emo= -the.Founding Fathers would writhe in their' ssic ^4_5n de siecle .dec s`= j: ., ..,, `".f tonal is not the difference between heavy aves if they knew that the nude dancers urea in,unwholesome-=,, - and light. •There are solemn emotions, and of the Kitty- Kat Lounge could unwrap. ' �` x f: there are frivolous ideas: themselves with the First Amendment: scar `;.;;de's play Salome,.,,.,_., F.. ,. „�4-, , Y' a ` 1096 ,904 FEDERAL:REPORTER, 2d SERIES `r'� r u} : And one can reply that such arguments ed, the city's guidelines must meet the r} ."�; I r I • i• merely demonstrate the inadequacy of.orig- • demands of the First Amendment. :, x, �', p'' il..1 r`1 final understanding as a guide. to constitu= The rock music in question had lyrics. But 4r ": ' tional interpretation; that they would, if the Court's reference in,the second seiri- 1 u:'_ -% r i accepted change the Constitution from a tence to music's appeal to• the emotions; V{` ' i"•:5 � i.i �'•i° living document into a petrified reminder of and its citation (omitted from the quota-.e ' • f' ; a the limits of human foresight; that'a con ;. • +� f g � • tion)to an article about Soviet ambivalence � , "K; ? r ` ception of free speech which privileges the toward Stravinsky—a composer primarily -.; " :-• �- :,4P tburning of the American flag (Texas v. � of nonvocal music—make it implausible to 4 ,� % t '11' Johnson, —U.S:—, 109 S.Ct. 2533, 105 suppose that the Court thought it was h µ*j `�`" `�1°i : L.Ed.2d 342 (1989)) but permits govern- '4, spec king only of vocal music; and it did not 4 • z, r 11: ,. ment to ban performances of twelve-tone �t, t , �� say it was. In another decision the Court `, s-E, i,, music is more absurd than one that pro- has said that "entertainment, as well as ii a,t, ; � tects flagburning, twelve-tone music,.and + F• �k':z - t political and ideological speech, is protect tE ,"�'. �� : , ; striptease; and that if the purpose :and1- .w^ ,ilr=,C,A ed" by the First Amendment. Schad'v. - i t"< .scope of the First Amendment's speech and ti 4 , ,, .ivai Plitt P P Borough of Mount Ephraim, 452 U.S. 61; F . �. , s'1I} I; press clauses are.exhausted in the protec 65 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671. .;� ' • F' ,f+.`z; �I}g tion of political speech, because freedom of ' h7. .z-•.•"-; . . • ll i; (1981). This court has held that wordless +-,',-.i-.. ` p political speech is all that is.necessary to ▪ " `. Tie music is speech within_the meaning of the '° t• ',-;.--;,,i''', i. ,� .; preserve,our -democratic political-system, �, • P.K+I+,r+,i amendment: Reed v. Village of Shore- , ., , .r . this implies the exclusion from the amend- �, i wood; 704 F.2d 943,'950 (7th Cir.1983).•'-- ,,; III ment s protections not only of all art(other - .. . ; O R. :, I am less interested in particular 'deer- t ,. . en ��`" ,�,� than the political) but also of science."For , ar5'4ii; one can'have•democracy without science`; sions than in fundamental principle. If the '�a • '' n just as one-can can have•democracy without only expression that the First Amendment 7" ', ,4 ? N fi I - ._ - ;' ...' protects is'the expression of ideas and opui , t ; ;Y = • ,It � The debate _has been resolved-for ions, then most`music and visual art, and s s' tz much of literature are unprotected: This F ; s judges at our level anyway, and for pow . • ' - T rl+ . -• ' would be..a'shocking :contraction of the , t z, it anyway-by the decisions anatomized in l • - - T , . ' First"Amendment as it has `come to'`lie 2 , Judge.Flaum's opinion,.particularly the,Su- 7Ha ,x i preme Courts-decision last term •in Ward 'understood:""If the_ only•way to exclude r ; s; <.1 ' a' '' nude'dancing,from_the,protection of alie° . :, P. v. Rock Against'Racism,=t.S.=,.'109 s•n • amendment is to exclude all non olitical art 110i S.Ct: 2746,. 2753, 105 L.Ed.2d 661 (1989) P i ry ? •_ -• - and literature'as well, the price is too high -, n li (citations omitted): "A. - k :. , : ,9 l Music is one of the oldest forms`of • ,rule cannot be laid.-down'that would . s } �` human.expression. From.Plato's" die- excommunicate, the.'paintings of Degasy1 ,,,,, * . , �,i F • Bleistein" v. Donaldson `Lithographing "+N: ;r.a , course'in the Republic to'the totalitarian �, 7 +fir 1j - • Co., 188 U.S.239, 252, 23 S.Ct. 298, 301,'47 :' 4 t;` s state in our own times rulers -have _ - • _ "` L.Ed. 460 (1903). •- 1)i'*! known its capacity to appeal to the'intel- ._ , . • • `.: s. ?• a. `-A ' lect and to'the emotions, and have cen- "-3._ ,Maybe the price ,need not be. aid ' ? '''' '" ii `i sored musical compositions to 'serve the maybe "mere entertainment'',is not cons*. Y, w#f;•�; r needs of the state. The Constitution pro- tutionally protected after all The passage t .-` hibits any'like attempts in our own legal I,quoted from.,Schad cannot have,been v... ;-y„ r'` - order. Music, as a form of expression meant literally. -Anything that gives pleas { y,-... •;'+`% it, l and communication, is protected`under ure can be-.counted as entertainment,let,I-; , , - a; the First Amendment. In the case:be- .not everything.that gives•pleasure is ex r y e a,, '`} ''F. • fore us the performances apparently cori- pressive. I,might—find.a display of north 7 �' ', T-Tr y" }'l` sisted of remarks by speakers,•as well as ern lights .entertaining; ,this would :not .� , ;f '' r!`' rock music, but the case` has -_been make that display an• expressive activity F, '-t�, 6 '•-it ;l, presented as one in which the.constitu- However,. while. not all entertainment is ` '' °'' to ' 'l,, tional challenge is to the city's regulation expressive, some certainly is. Art is enter , ;nr *.fi>" ?,` p ! of the musical aspects of the concert; tainment. .Not only is much art created in :.- -' Pt x and, based on the principle we have stat- order to entertain—Shakespeare's plays, F T 'rt. t.. e r hu '''.:iirl'iii' II ,, . w..- ,,t� BEND RIE'a MILLER v. CIVIL CITY. OF SOUTH1097 a Cite as 904 F.2d 1081 (7th Clr. 1990) s guidelines must meet•the "'i",.a° ,. � for••example-but art that was religious or suppresses bullfights it is not suppressing the First Amendment. :s r - `„ " ' ., � � ;. ?��;pohtical in its origins is today valued large- mere "entertainment" that has little 'in in question had lyrics. But _1."Jyfor its entertainment value. The Homer- common with ballet. They have a great '',H;;. ference in the second sari r ._ �, � ' �,.pg epics and the religious art of the Renais- deal in common. The difference between 2's appeal to the emotions;-' ., ' •::sane are examples. For those who actual- bullfighting and ballet has nothing to do n (omitted from the quota'-�'� . ,=ay love art it is primarily as a superior form with expressiveness; they are equally ex- ;le about Soviet ambivalence'..�' ""•r• '-•.`•f• f entertainment and consolation that it is pressive, albeit of a different range of emo- Y Ai.i' ►sky—a composer primarily;i '�*� ,� :.�7,,lov-ed rather than as a source of insight or tions. The pertinent'difference is that bal- isic—make it implausible to" :" ' i _ e�ication,although it often is that as well. let does not entail the torture and killing of the Court thought it "was �r, ti, a.:��,, o_ as a classification for use in applying animals or a high risk of injury or death to g ,:. �- ';' •'''i ' the dancers, and bullfighting does. If vocal music; and it did not..,,v,,,,..-���.'._ �A ;:�!? First Amendment, entertainment .is ::; ,, :;,'both underinclusive and overinclusive. It another decision the Court . In calling bullfighting "expressive" I "entertainment, as well as f,f�"., •.'i+',.includes things that the First Amendment may seem to be implying, despite my dis- eological speech, is protect '.n� z' 3 cannot possibly be thought to include (such claimer, that bullfighting must be protect- rst Amendment. Schad'v. *. ' -".. _as the northern lights) and it excludes ed by the First Amendment from regula- )unt Ephraim, 452 U.S. 61' .•, ...`, k•-"t'=r things—namely most of art—that it is the tion or suppression; for does not the p Y" ':L• hole purpose of the classification to, in- amendment P :176, 2180, 68 L.Ed2d 671 a :t w P protect freedom of expression? Hirt has held that wordless?, k '�clude. I repeat that I do not believe that the First i within the meaning of the; .'.. ' '`,F, Still, can the First Amendment really be Amendment protects bullfighting. But I ?eed v.' Village of Shore`' h :';.:thought to cover all expressive entertain- insist that bullfighting is an expressive ac- 1 943, 950 (7th Cir.1983).• �y£ f ''Y:; merit? The example of bullfighting comes tivity. To deny this would be to-play the • 4 ,si mind. _Bullfighting is an expressive ac- terested in particular 'deei` r:Y'• °: g g P unedifying semantic game of persuasive •4ivity,and even has affinities to the dance. definition. Bullfighting is forbidden.not. , tha tal principle:' If the ':. 4!,ii,�`' because it is not expressive, but because in •��+��i s:• _ ,,;There• is music, pageantry,. elaborate cos- tha First Amendment�'� *f•- �` ;x ri. of ideas and o p an�'';k �' • 9 �v..,.ines,ike theste march with which '•• American society its harmfus thel consequences P P s,ti. ` M`2 : music and visual art, and; ;? i. ,r, :, P matadorare thought to outweigh its expressive val• 4, .r;,i incites and parries the bull, the picadors on ue. - -. .1. ure, are unprotected. This .„, r; ^rr, ' ` s 'their splendidly.caparisoned prancing hors- ' • - locking contraction of the; - ' . ',t , : es;:;"The whole is orchestrated and choreo- . I said earlier that casual chit-chat, a- ...:nt as it has come to.be' , % �',• � though .an ex•ressive.activity;is not o- ' the onlyway to 'exdlude`` ? „aphed for maximum emotional impact; g P tY. P .• - Y = ' w l mong the feelings conveyed are grace, tected by the First•Amendment. .A public 'rom the_protection of.;t a w,.�, � ..,. ,fw, a ' :courage, suffering, fear, beauty, cruelty, theater that ejects•a,patron for talking'to i exclude all nonpolitical art. .?!..'' ',. ,-•,, z splendor, and machismo. •:Hemingway, his neighbor during the performance;of;a . s well, the price is too highs:},ryr,., R Death in the Afternoon (1932). Bullfight- play does not commit a prima facie.viola • be laid down that would, • �:. ' —-- tion•of-"the' First-Amendment.----Perha s-- n ~: � �-r mg is more expressive;more artistic, cui P the paintings of- Degas:r',_ �. 'turally richer than the most popular like casual social conversation, the:strip- )onaldson `Lithogr'aphing,? 4` •. }can tease makes so little contribution to the „,;, sports.- Is it therefore protected by the 9, 252, 23 S.Ct. 298, 301;'47 f *x;_'; Ilp•:,-First Amendment? It.is not the First marketplace of ideas that.it can be sup- '' ;r` rig ' `;,Amendment no more forbids. the prohibi- pressed even though it is an. expressive e price need not be paid; ( ' ' ,';;• 4 tion of bullfighting'than it:does the prohibi- activity formally akin to the highest forms itertainment" is not tong,; Y tion of obscenity. There are many grounds of art But here we risk being misled by 1 ;ted after all. .The passage A .1,'4; ' for regulating and even prohibiting particu- metaphor.• "Marketplace of ideas," useful Schad cannot have been: •' 4.x`• lar forms of expressive activity. .'In the short-hand though it is for the domain of Anything that gives pleas`', '-u`'c' only • y, case of bullfighting, .the �grounds are: the First Amendment, leaves out not rated as entertainment,;ryet, t' -,, �s;,aversion to mutilating or killing animals for nude dancing but also the greater`part of • that gives pleasure is ex: '.,.,. 4'.sport and also aversion to sports that are art, as well as much of politics,of journal- . , 'ht find.a display of north`: 3 C highly dangerous to-the (human) partici- ism, of education, of philosophy,' of'law, Ttaiiiing; this would.-:not,';'''' '. =•-•,pants. The Constitution does not place and in short of nonscientific discourse gen- • ' lay an expressive activityw _ ''' '' -freedom of expression.above all other val- erally, for such discourse is heavily rhetori not all entertainment;ris 1 f;•' .i ues; it does not privilege gladiatorial con- cal,'emotive. To observe that ordinances a cer+?"-1„•is. Art is ente1; :°,`= ._ A-:tests any more than it.privileges. the em- forbidding nude dancing in bars "do.not . )nly Itch art created.in�';•--- _' Ployment of children to make pornographic prohibit an exchange of ideas which might ;ain— �.: respeare's plays, ' `,,,, . T• movies. Nevertheless when government tend to bring about political or social Ake S ' rFt a4 1t `• ', • inn ;.��, ti II., 4 YPo. 4 '-'41: f 2I:{ i 1098 904 FEDERAL REPORTER, 2d SERIES Il I ! change, .Yauch v. State, 109 Ariz. 576, this is carrying relativism and skeptics `'-a; ' , ; ; 579, 514 P.2d 709, 712 1973 'or that "it is ,t • •!�4111' ( )� too far. But aesthetic quality cannotf,>�;•��Gf- „k` ' t . difficult to conceive of ideas entitled to the.standard that judges use to dete :d. First Amendment protection which can be which erotic performances can be forbidden .'h, a �, solely—or even best—expressed by baring and which cannot be. There are no obje - • I ;1) the anus or genitals,".Kew v. Senter, 416 tive standards of aesthetic quality, 'an,'1 F.Supp. 1101, 1105 (N.D.Tex.1976), is,cor- while we allow obscene works to be "re.., ��'�` rect; it just misses the point.. Art and deemed" by "evidence" of aesthetic quasi#; ;. r 1,; popular entertainment are not awkward or ,. }, '! failed attempts to communicate ideas, and '' it hardly follows that we should aIIow ti� )4t4,y 1 ' protectionworks that are not obscene to be con,. 4."#. t 1.I; the of the First Amendment is demned on the basis of evidence su l,' I not limited to ideas. ggest � , ?,zi'i 1 " '' ing a lack of aesthetic quality. On the` ° {,, i' Once the relevant marketplace is under- contrary, the fact that the law protects' lF`'' -i' stood .to include expressive activitycon- -r.,.' ��v ����'•• P obscene art attests to a justified moderfi'��"� .. �,, G G cerned with the emotions as well as expres- anxiety about censorship. The practical of'..` ;a : ' p 't, 'F'[, sive activity concerned with ideas—to in- fect of lettingjudges playart critic and$ r" ,j,` �' elude narrative, imagery, rhetoric, and de- J g ,.� 'r. censor would be to enforce conventional , �'' s1 [[,i,; sign, as well as'discursive prose—it be- notions of "educated taste," and thus 2``" ' r ( ;[- comes evident that erotic performances are 'sue ,.i •.1:; allow highly educated people to consume,;r x,�° a major component of the First Amend- s , t erotica but forbid hoi polloi to do the a'w ,, ti "'9 ment marketplace, while social conversa- wy - ��,�° - same. The robust: paternalism and class �,*�� t tion,ballroom dancing, and 'other"audience a 6.1 �- �' of one" Communicative activities are`a mi consciousness that once permitted such;a., ., ��'�' distinction have lost their legitimacy.:The' c.t ' 1 1 ' nor_ component. Granted the su ression PP music held- constitutionally protected•:;n:,;:•,`� yy{, of one genre of erotic art, the striptease i t[' ' Reed v. 'Village of Shorewood.was rock '. r ' would not truncate the marketplace eat- and roll. The Constitution does not look ' ly. But lest its suppression turn out to'be ' down its nose at popular culture even if its��a the first step on the road back to•the insti- I reign alized` puritanism' of' .Cromwell 1perperform- - framers would have done so. Salem Inn, F, k• .i '` alinedwhich _ Inc. v. Frank, 522 F.2d 1045 (2d Cir.197 ) ' '• - i all theatrical perform �•t ., .t . . antes, -including performances of Shake- [T]he taste of any public is not to be , ,1 „� • speare's plays, were prohibited—we need a treated with 'contempt.. It is an ultimate;• i. 1r. s ; principled 'ground 'for-distinguishing-the fact for the moment, whatever may be 64 ` ' ; : , hopes for a change." ,.,p,; striptease (or some Subcategory. of strip- ge• Bleistein v. Donald,.. ni i O A. tease typified by the dances at the Kitty son Lithographing Co., supra, 188 U.S. at.' .; ,i i• 252, 23 S.Ct. at 301. As h �< rb�.:.r Kat Lounge) from other forms.of nonob applied by_tlie.' ,, district`court in this case 71 '-tL�� atiscene erotic. expression. None:has been , the Indiana§tat ' , ".::-7i suggested.' At argument, the' la ute with. its judge-ma «'} tf lawyer J ge-made exception _ ex k� �}fthe State of Indiana proposed to limit the pressive"•nudity discriminates between up�;t f '�f 1 J protected category to'"established" works per-class and lower-class nonobscene eroti- -,4i 1 ,f{•�; of art,z:This approach would have excluded ca. The First Amendment forbids this kind` d z'� 1: ; Manet's great work.Dejeuner sur l'herbe, of discrimination. "_ .. ,.. t�� i in which a naked woman is depicted pit- I have been assuming that the line be-::,-.,...:,,,,' . f;,?1' nicking .with two fully clothed men; ;far tween expressive(in the sense of communr . y [ t)'`j from :being an established work .of art cative) activity and nonexpressive activityfY. f` ip when it first burst on the,art scene in_1863 p P -1 is distinct. It is not.:-Wright, su ra at ?-4 t 11 ,�<< it caused a.scandal. • , 166-68. There are some clearlyexpressivef '_ .. .,: ,r.p ' ! Although much of today's high culture activities and some clearly nonexpressive i , . ( ": began as popular entertainment, the'likeli- ones .but'there is,also. a vast gray-area yam tH �i hood that the videotape of the KittyKat ;-;,.C' f {,s' �' P populated by street performers who swat �� ',},> �;,, stripteases will one day achieve the cultur- low swords or walk on glowing coals or'`; ',.:•v, �� ?! ,j; al renown of Dejeuner sur l'herbe is van- guess people's ages or weights, by people ; r T 1, ishingly close to zero. Anyone who doubts who wish to make a "statement" by dress- .,,'., . 6'f• 4 •. x 2d ---' LIES '`ire' ' ` r`. ` -: ' MILLER v. CIVIL CITY OF SOUTH BEND 1099 carrying relativism and ske ;9 _'V fi 1 Cite as 904 F.2d 1081 (7th Clr. 1990) But aesthetic quality Pticis>n<, _ ;"`i gg outlandishly, by creators of 'video acter and social consequences. The pitter- q ty cannot; y :' q ndard that judges use to de be ' fry: ' games, by contestants in dance marathons, patter of raindrops does not become ex= term Y«.= , �'� P rotic performances can be forbidd e'_'_`"x° , ' and so on without end. The government pressive activity by being recorded, and a ich cannot be. There are no gn has a greater scope for regulation in the recording of Beethoven's Ninth Symphony objee_: {, , ., , :r.grayarea. Maybe, indeed, that area could is not entitled to more cOnstitutiona potec indards of aesthetic quality; and, p. -. ,. regarded as outsidethe boundaries of e aIlow obscene works to be b*. <0 tion than the live performance from which ' by "evidence" of aesthetic "re. G,:1" . the First Amendment (de minimis non the recording was made. The government rdly follows that we should auow ,; r .' tution l rat ex), in which event constraints would the only he those il- could not shut down the theaters on the hat 'are not obscene to " ' very ground that what actors do is conduct, not be con-''h`': 'hI :1. loose ones that the due process clause speech, with the result that a production of on the basis of evidence suggest.`? , : .w � --places on harmless liberties not involving ck of aesthetic quality i.x, e.,^ g King Lear by the Royal Shakespeare Corn- t3'• On the ;':-:' M''•=4.:;.;..the exercise of freedom of expression. pang would be outside the scope of the. the fact that the law protect; i '5.,i Swank v. Smart, supra, 898 F.2d at 1251- zrt attests to a justified modern '. ;°1,, ;_14 • 52. In claimingthat expression is a contin- First Amendment but a nonobscene porno- bout censorship. ,,;,;; �.,r�' ;s` " p graphic movie within it. ' P The practical ef- ' # > ;uum I am not contending.that the bound- itting judges play art critic and ::,•' s,.. aries of the First Amendment must be left There are exceptions to the parity of the ould be to enforce conventional ,.; _''kF ' x=V'- utterly elastic. It is desirable to have some live and the canned performance. Amur P "educated taste," and thus'to ``, -?k i, 1 ' '` Firstder intended as a political demonstration is § Amendment rules and not leave fly educated people to consumer t;,,;;� , everything to be governed by standards illegal; a movie in which a murder is sim it forbid hoi polloi to do and sliding scales. Put more precisely, ulated is not. The reason is not that one is the'?r , ,e robust paternalism and class ;' `,'• - ws„standards and sliding scales can be used to conduct and one speech, but that the con- duct ess that once permitted such.a •, , 7 .4. ,P e iP involved in the.two;� reel itate out rules, and have been used inperformances is have lost their legitimacy. The'` V';=� r'' . this way. The rule that social dancing is different• In the first, a person is killed; i constitutionally ' illage of protected •m .,!,y , ' 'i. : not an activity protected by the First n.o one is killed or injured in the second. It illag Shorewood was rock t. .. ,'��.. ;` I' Amendment, and the rule that social con-The is on this theory that child pornography; titution does not look ,�, ; 1*�r; versation is not, are crystallizations of a even if not legally obscene, can constitu se a -,ular culture even if Its •'ifs ';;process of weighing the relevant policies tonally be suppressed. :New York a Fer uld have done so. Salem Inn, ' 1. , a and values to determine the amendment's ber, 458 U.S. 747, 102 S.Ct. 3348,_ 73 xk, 522 F.2d 1045 (2d Cir.1975):::" ' ' .appropriate scope. Another sensible First L.Ed.2d 1113 (1982); Osborne a Ohio, s of any public is not to=die••:',• 3'.11 • »' ' endment rule might be that government • U S — ---, 110 S.Ct. 1691,1695- 1 contempt. It is an ultimate' i`? `' t ;has carte blanche to regulate dangerous 98, 109 L.Ed.2d 98 (1990). Speech is sup moment whatever may be'our;"; �`s n: expressive con- pressed in order to get at the underlying. ,sports, irrespective of the ihange." Bleistein v Donald 1, *•. „'�' ` :tent of some of those sports, that would conduct, the employment of children to aphing Co., supra, 188 U,S.'at, ; " ' .ei take care of bullfighting. There may be make pornography. So might a state pro at 301. As applied by the • ,`F room for rules about public nudity as well. hibit photographs of sex acts performed by^ in this case, the Indiana stet- '6:;,;, : ,.. f,,., -at„is indefensible is to set up "entertain- persons paid to perform them; speech Fudge-made exception for "ex .',a` '••. "r ment as a category of activities, distinct would be suppressed to get at the underly- city discriminates between'u.• ', '' ' `,, , � :_ from "art," that government can regulate ing conduct,a variant of prostitution. Peo- lower-class nonobscene erotl :IF,'Al t t ',' '�,- without regard to the First Amendment ple v. Freeman, 46 Cal 3d 419, 250 Cal. Amendment forbids this kind •.;:`°�';1�""-;} Or to suppose—unless one is prepared to RPM• 598, 758 P.2d 1128 (1988); State:v. ;ion. ;;a��[w`s ; �,, ' deprive most art of constitutional protec- Kravitz, 14 Or.App. 243, 511 P.2d 844 :.<t '',, t tion—that there is a rational conception of (1973). The striptease dancers in our ease 1 assuming that the line be- t 4_` "expression" ive (in the sense of line be- -:;y 4 .+ ,.',-i, ression that places striptease dancing are not children and are not engaging in r and nonexpressive activity "`'f'`;r�" `a,f on the nonexpressive side of the divide. sex acts, and although it might be possible is not. �`. : ' 4. If the line between the expressiveto distin uish between live and canned Wright, supra, at Ask ` g • p Y -?iT and the nonexpressive is indistinct," the nude dancing on the ground that in the are some clearly expressive ;r-; '; ', ; "line" between speech and conduct, be- former the dancers are'accessible to the` • some clearly nonexpressive . is also a vast gray area " .5 }w'`' Veen live performances and performances audience, Indiana has disclaimed any suchT `'" distinction as a basis for upholding on paper, videotape, or compact disc, is a pholdin its stet treet performers who swal- jSµ; walk on glowing coals or • • y blur. (This case is a symphony of sterile ute. ages or weights, by people L „, dichotomies.) Normally, although not al- The true reason I think for-wanting to .ke a "" ,Cement" by dress- » g r•,t `'� encoded is irrelevant to`its expressive char- tion of the striptease Amendment is not any of 1 � u j 1 pp • 1100 904 FEDERAL REPORTER, rg ;I , ,�: 2d SERIES ' w?, tee " t1..; iKitJ.^' l d. " i f, the lawyers' classification games that I the display would not thrust itself on the ', R! r? Ht ; I, have been discussing, such as expression unwilling viewer. Indiana can forbid the ``1 }i -;a versus nonexpression, ideas versus emo- Kitty Kat Lounge to display .•.. t ` tions, art versus entertainment, or speech of its nude dancers on i P Y photographs "'` i is marquee. But it `'`'' t i`• versus conduct. It is a feeling that the cannot ban the dancingitself .�' yj;C �. .1 4'# , 1 proposition, "the First Amendment forbids formed indoors, and not visible from the ,a._` (when per 3.. �`' the State of Indiana to require striptease -° 1 14 l,F�{,,;; dancers to cover their nipples, r ptease street)without a stronger showingof 'usti- ,: .;,,�;': ; �� j , fication than it has attempted. Indeed, it 1�! ulous. It strikes judges as. ridiculous in p ` k , aF��i,,F �` has attempted none—which brings me to _ part because most of us are either middle- , ' `' it 1 aged or elderly men, in part because we the brief and argument of the State of `.• icy # �=l 1,f3 ti tend to be snooty about popular culture, in Indiana. �, "�i{ part because as public officials we have a The brief is four and one-half double- -Ye- .. #r`• ,1, natural tendency to think political expres- spaced pages in length, and is replete with • fix='::. 4ci'` grammatical and typographical • q;,;, sion more important than artistic expres- errors. It ;,_,,�,:_ ; qi ) if; sion, in part because we are Americans— contains no explanation of the evil at which _ ' � ,j'A; which means that we have been raised in a _ ��� x the statute is aimed, and its analysis of the t . f , 4., culture in which puritanism, philistinism, constitutional question is limited essentially sv,,1 ''a�"' and promiscuityare complexly and often to the following passage: "Entertainment r'it,9 incongruously interwoven—and in part be- which did not contain expressive content— : ,; -'F"d cause like all e r! lawyers we are formalists e.g., cockfighting or bear-baiting—could ,�., �. ;;i who believe deep down that the words in presumably be regulate [sic] or prohibited :.`' • statutes and the Constitutions mean what by the States. Entertainment per se is not f ;T.- '; _ .' i they.say, and' a striptease is not a•speech. protected; entertainment that is a form of � i. But the ;t .h:: rI element of the ridiculous is not all. expression is." It is not obvious, however, may' r',,3 on one side.• Censorship of erotica is pprettythat just because peo Ie can be forbidden y'ry. '' p . ,,_,,4.: Ck a ridiculous too." What kind of people make to-incite animals to kill each other, strip- "'.,, �: al; a career of checking to see whether the tease dancers can be forbidden to remove } ' .'" covering of a woman's` nipples is fully all their clothing. There is a missing link i � �1,44} ! opaque,`as the statute`requires? ;(These between blood sports and erotic dancing ,`';;,`(` ^} statutes are full of absurd locutions' 'such -` ` t'�' that the brief does not attempt to supply. 4-1• -a ', � as: "`Wholly•_or substantially"exposed to A psychiatrist might find the juxtaposition Public view,' as it pertains to breasts`shall fascinating. _ _;. t mean. Chattanooga Ord..:;No.•�1420, Asked at argument to explain the con-- :,. 4 s, � � § 25-28.2(b),,quoted in City of Chattanoo- cern behind the statute—a pertinent ques- . z(, ga v: McCoy, supra, 645 S.W.2d at 401.)- tion because there. is no legislative � . -.•.. `;;'-', -----Most of us'de notadmire.the Islamic clergy and the Indiana decisions interpreting the a„�,q £e•.; +�- ,! for their meticulous insistency on modesty statute do not explain its _ ; t, `+ in'female dress. Many of us do not admire vague referencesPurpose beyond - E ';' • It' �I •• busybodies who want to•bring the force Of state's la to public decency—the :� .Y !!! lawyer first suggested that the pur- `3 a a , law down an the heads'of adults whose pose might be the protection of marriage. ` '` • • i harmless private pleasures the,busybodies But recalling the divorce rate in this cowl- , i find revolting. The history of censorship'is• try he'1quickly added that that battle had Fj ,,. 6 :,I - a history-Of folly and cruelty. • ` already been lost and he switched his } I ai' ! • Some two-party transactions have effects ground {{{ RS to the prevention of adultery. This t r =.r > �, 1 �3 ili: on third parties, and these effects are a is far-fetched and was not elaborated. _ , 44 proper ob'ect �i f, j of public concern. Nonob= A related and more plausible concern ;zz„i ., *� + scene 'displays of nudity' lr can have 'such that may lurk behind the statute is fear - _•, it effects. Piarowski v. Illinois Community that striptease dancingin bars :;S , i'4J:-. stimulates College Dist. 515, 759 F.2d 625 (7th Cir. or facilitates prostitution. (Is the Kitty •r { Tt � 1985), held that a public college could move Kat Lounge in the red-light district ofN _ an offensive although not obscene artistic South Bend? Does South Bend have a it _t ' . display to a more discreet location where red-light district? The record is silent on r v " ` ; j . r d }, . II ,. ,�. !, _ar r 2d : tES -V . `="' MILLER v. CIVIL. CITY.OF SOUTH BEND , 1101 ay would not thrust itself on the . Y S ate as 904 F.2d 1081 (7th Cir. 1990) viewer. Indiana can forbid the r=' li',;i.these questions.) The association between may in any event have little practical sig- t Lounge to display photographs ` -t;.. erotic dancing and prostitution goes back nificance. For even if there were no Twen= gr phs '.%;=` '' ' to' Roman times; bump-and-grind dancing ty-First Amendment, government would it dancers on its marquee. But it r ` ~ an'the dancing itself (when er- `Y+h :. v':;::)'-'::;.-r .is said to have originated in the bordellos have greater scope for regulating.express 'doors, and not visible from the ) � of the Wild West; and in California v. La sive activity in bars than in theaters with= 'door a ndo showingof 'ut e. - '. •." t� Rue, 409 U.S. 109, 111,93 S.Ct.390,393,34 out violating the First Amendment. -•The stronger J - t L.Ed.2d 342 (1972), the Supreme Court, in audience is smaller, attentiveness is less; ian it has attempted. Indeed it'. :: . ' :5j.:.u holdin under.the Twenty-First Amend- pted none—which brings men "` ' �" •. p g �' the expressive element diluted, and in short g1 i�`4r'%'.inent a California statute restricting nude the social costs of restriction are lower.. and argument of the State of - r: =�::. ,.�-, -,� dancing, cited evidence that nude dancing There are indications that the Supreme a-7,. . ,-1 g p Court would be receptive to a ruled based ,z; ; -. . in California bars had encouraged rostitu- :f is four and one-half double- .. c`iar. ` " tion and other lewd conduct. See also on such distinctions, California v. La Rue, es in length, and is replete with. , 4. '� 'f' United States v. Muskovsky, 863-'F.2d supra, 409 U.S. at 118, 93 S.Ct. at 397; it and typographical errors. „'�`: It :��; ,*,: .' 1319, 1321 (7th Cir.1988); Grand. Faloon New York State Liquor Authority v. Bel- explanation of the evil at which ::, ; ''' Tavern, Inc. v. Wicker, 670 F.2d 943, 950- ,,P .�;,. ;,; lanca, supra, 452 U.S. at 722-23, 101 S.Ct.- is aimed, and its analysis of the ..pz.<. . ,y. 51 (11th Cir.1982). The State of Indiana at 2603-04 (Stevens,J., dissenting), despite al question is limited essentially `' ' 'r >. has never mentioned this evidence, im- winghow- "Entertainment Or; � ,,z,, ever, the social, cultural, and 'even political passage: . Y 4`1 ::, ever, let alone presented its own. Anyway portance of'cabaret entertainment. Segel; of contain expressive content= (1 y3 F. the Indiana statute is not confined to bars. Turn of-the-Century Cabaret `(1987). And ghting or bear-baiting-could , °;�` : -L: . Although thus far I have discussed only while in one sense the Indiana statute im- 'be regulate [sic] or prohibited '_'1'; " -'�`' ':the dancing at the Kitty Kat Lounge, be- poses Entertainment per se is not l" oses an outright ban on an ex ressive: cause that is the only dancing that was p g p ntertainment that is a form of i rs; activity rather than merely regulating it,in ' videotaped for this case, the other plaintiff; another sense the statute is a mere,-and • It is not obvious, however, . 1..;:,:,.41.Z. Glen Theatres, owns a theater rather than indeed modest (pun intended),`regulation: . • :ausi: pie can be forbidden '-IA' x a bar. The statute has been held to apply - - nals All each other, strip- } '' n=�:'to theaters as well. ' Erhardt V. State, 468 The statute does not ban striptease &he- can be forbidden to remove.'''' ; .;.4'.. N.E.2d 224 (Ind.1984), reversing'_1463 ing; .it bans only striptease 'dancing that+ ends in nudity, which is so narrowly de= ling. There is a missing link .,..',;y, , - ' ', N.E2d 1121(Ind.App.1984). If it were con: d sports and erotic dancingfined that a t woman wearing_Only tiny fined to establishments where liquor'is does not attempt to su 1 4 e' �. ;.,sold;'Indiana •could appeal.to the broad pasties and a Gstrs " is considered PP Y s clothed. .So:perhaps it is merely the mdn� might find the juxtaposition.., 6„` . ,. - :, regulatory powers that states enjoy by vir : t rue of `section 2 of the `Twenty-Firs£ ner of the st•riptease that is"being;reguIat� r } Amendment, which forbids the transports= ed, and regulations of the time, place,and: gument to explain the'r con j, `" .tio en alcoholic Beverages into any state in manner of expressive activity are,treated ie statute—a-pertinent ques �'-.r .'t.: ,. `';<;= •'' ' ' • ' . •more_lenientl than outri ht_bans.i:, ,z zere is no legislative •history, ABM ,'" '"• f ; violation of'the state s laws. Californi¢v. ... y g _ `� is decisions interpreting thed La'Rue, supra; New York State Liquor :But set to one side this question of which explain its ,.6.-; ;, Authority v. Bellanca, 452 U.S. 714, 101 pigeonhole to put the statute in; it is anotfi purpose beyond �, i x S.Ct. 2599, 69 L.Ed.2d.357 (1981) er cu- er example of the frequent sterilityof,ef- ces to public decency—the ' °i,; (p p q First suggested that the pur-N;vh: - .° yam); Reed v. Village of Shorewood,-sus forts.at legal classification.. :Cf. Commu the protection of mania e: ° r.,i' ;.: pia, '704 `F.2d at 950-51.' The Supreme nity for Creative Non-Violence v. ;Turn; ie divorce rate in this coon: i ' ', Court of North Dakota relied on that er, 893 F.2d. 1387, 1398-99 (D.C.Cir.1990) ,';- amendment in upholding an ordinance for= (concurring Opinion). ,:..Instead consider the: added that that battle had lost and he switched his >"'�°' f+ bidding all dancing in places where liquor issue in functional terms. The incremental r z ,, is served. Olson v. City of West Fargo, expression associated with the movement evention of adultery. This .,, e was not elaborated. 305 N.W.2d.821, 827 (N.Dak.1981).:, from practical nudity to.statutory' .nudity. `'�r '„ .*` Why the Twenty-First Amendment,"the may well be:slight, and the association.of: • d more plausible concern 4o y Behind the statute is fear ` . caw i'P'� , aim 'of •which was to repeal Prohibition nude barroom dancing with,prostitution lancilancing in bars stimulates "' _ `'t., without eliminating state authority over may be a good enough reason for.outlaw: ntion. (Is the Ki twf. `. the'sale'of liquor, should be thought to ing that:increment to tip the balance in' } ;1 curtail the scope of the First Amendment is favor of a rule prohibiting nude dancing.in the red-light district of `-`� �' -.,: - does ¢„ ,•-, _s an abiding mystery of constitutional inter- bars but not in theaters, where the peri h Bend have.a:�_ } Tl' :ord is silent on 'Yl ,,<< pretation. The question is foreclosed-!at formers do not mingle with the customers:; -� 4 1 our level of the judiciary, however, and But that is not the.approach of the Indiana , 904 F.2d-26 P ,r I.1- , 1 -, 4t 4` 4tx 1 l 1 '"1` !1 1102 904 FEDERAL.REPORTER, 2d-SERIES ..,;`, "` . „ is 1 '�`� ' statute. The statute does not distinguish statute forbidding nude dancing (and other`1` . '; ; }r •', '+ between bars and theaters, and this omis- nude performances) in bars only; such.•a,';,,/, ,e y. ki" sion, taken with the failure of the state in statute would be.constitutional by virtue of .•': -' !° its briefs or at argument �,��:� ;. gument to mention prosti- the Twenty-First Amendment as. it�.h "',�: 'I. ,� ; '.' tution,should make one skeptical that anxi- . r l # P been interpreted. I ety about prostitution,is what animates it.. a µ !} . .! Can the application of the statute_to. ' ;'- ' 3 i, Moreover, it is the striptease itself that,the �-, k` ' j dancing in theaters as well as in bars be .; f -;`; district judge found not to be expressive • IA,'+11; •'; activity,not just the final step of baring all. saved by reference to the "general effect";'= ?•.t ! ' I add that despite the appeal of.incremental of a regulation that restricts speech incit';h� it�g ' dentally? United States v. Albertini,472' xrrY ` h. .# 1, analysis in this as in other settings,, it • R would violate the First Amendment.to re- U.S. 675, 688-89, 105 S.Ct. 2897• , 2906-07; ,--,'" T ' '1.l l' 86 L.Ed.2d 536 (1985). In Clark v. Com r. " ." • i E 'I,< quire museums to place figleaves and w brassieres on their paintings and statues. munity for Creative Non-Violence, '468. ' _T '- ,L it ' U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 . ` 3 t Perhaps the Indiana statute effects a aral- ' rl; lel mutilation of striptease dancing. P. (1984), the issue was the legality of a regu= :, �t �`:;'i' V. ! lation of the National Park Service that • a 4:``' 1' . If we were dealing with a local ordi- + ii nance, or a.state statute authorizing.local forbade sleeping over in a number of the a�. �_ ',� -F, ordinances, the case for regulation would parks managed by the Service, including• ,, ' %; 51 i.•. be strengthened. Even if one accepts the Lafayette Park in Washington, D.C., oppo- h,« `,f. , q' P site the White House. No one questioned ;., ' ' {{Ao.+:L, • current view, that the Fourteenth Amend- the validity of the regulation as such,but ii' % 3-. �''' t E1 , ment makes the prohibitions of the First' ,y:; ,; ;art ,„ , • Wit Amendment fully applicable to the states was argued that the First Amendment fort ;, `• ; -. "4. 1i and its subdivisions,the geographical scope bade enforcing the regulation against„a f ,,: ..i , t of a restriction on expressive activity bears group that wanted to sleep over in Lafay� _ ,-�; 6: on-the reasonableness of. the restriction. ette Park in order to' make a symboli . -_,, x �' Prostitution is a local so the case• statement about the problem of homeless':;; �` ii ii .:.. problem, l•tea �_,,, for banning nude dancing in bars in order. people. The Supreme Court upheld the,4 . .• to'reduce the incidence of prostitution will enforcement of the regulation even though';; G '";' ,Y ` in the particular case the balance betwee • ` �'k i be stronger or weaker depending on Iocal ,, ,_;' "4',i :. , ._ conditions. Moreover, an ordinance is f less the values of, expressive "speech", and, ^ r ' ` restrictive than a statute.`'It'not only af- those of.cleanliness and order may, well:,;4 l l l ; fects fewer'people(on average-for'some have,inclined in favor of speech. The Park> x.L•-,., Service was not required `p I , cities are more populous than some states); to make an'excep;"�* 4� _�t it restricts them less. It is cheaper to tion for the Community for Creative Non- ;ice Violence�Id. at 296-97,-104-S.Ct. „� _,Y,) ___--_travel to a nearby town for erotic entertain- 4-S.Ct. at 30 ) ti,`.?;= " 71. By , F. ,' ,i �, ment than to another state. ;,: analogy it can be argued that the :: , i _ In'sum,'while a local ordinance forbid- State of Indiana is not required to make an, _ {i ! exception to its ban on public nudity merely� ',• • :or ding nude dancing and other nude perform- 1 i'�� ances in bars would be constitutionally un- because the persons clamoring for the•ex_„ , ;, '•u /11 A problematic'(nonexpressive public nudity in ception wish to employ nudity as an elegy 4 y t. ": .''' f ,i bars as in other places would fall under the ment of expressive activity. ._. .-.?;:._:'•t , ;Y, ;lea a,: legitimate ban of the state's statute).and Albertini and Clark make clear that per :x:; ', `.-3', w;;`. would take care of the only social problem sons engaged in expressive activity have no . :. ?,:'.. ;;,�; ! plausibly associated with' nude dancing, a constitutional entitlement to be exempted" • >, statewide ban on such dancing, applicable from laws of general applicability.. Au- : • ', :3;; ' to theaters as well as to bars, violates the thors•cannot claim an exemption from m • L. • 'I I,1 , First Amendment. It is not saved by an come tax or publishers an exemption from xis 0'`E. . exception for expressive dancing, when the the labor laws. This result is sound;-and ,t 11, �tr s • ;} '', i; exception excludes striptease dancing, while it may be in tension with.the principle;' ;,_-i.; i ,• h , z which is expressive whether or not one derived from the free-exercise clause of the .'; ,' << likes what is being expressed. The inter First Amendment that government must ',�,x µ` 11. - mediate regulation would be a statewide accommodate its laws of general applicabil.. • 4' ;. �'-, •4 1 6 f ' :P . i 1 A • SV . 4. ;,f•.: ERI_ : A ,, , MILLER v.:CIVIL.°CITY OF SOUTH BEND • 1103.: ;:4 w r a Cite as 904 F 2d 1081 (7th Clr. 1990) [ding nude dancing(and other :. ity:.to the special needs of religious minori- priety affirm a district court's decision "on: lances) in bars only; 'such'a "- F ties, Sherbert v. Verner, 374 U.S. 398, 83 any ground that the record fairly supports': byµ '''-- �S.Ct. 1790, 10 L.Ed.2d 965(1963); Hobbie.v. and the appellee has not waived,"Martinez be constitutional virtue off � '� First Amendment as. it has' �,„ r Y''Ilne••mployment Appeals Comm'n; 480 v. United Automobile Workers, 772 F.2d ted. •- ' •:;,�}� �•�w ;J`U.S. 136, 107 S.Ct. 1046, 94 L.Ed.2d 190 348, 353 (7th Cir.1985); LaSalle National. ' =r. )plication of the statute''}' ': - ' ,y(1987); Wisconsin v. Yoder, 406 U.S. 205, Bank v. General Mills Restaurant Group,.'. _- '. ( ) eaters as well as in bars be'.>;k � y�� `t;;,T�'.r;92;S.Ct. 1526, 32.L.Ed.2d 15 1972,. that Inc., 854 F.2d 1050,.1052(7th Cir.1988),but. rence to the "general effect" , ` ' , ?'- .principle is moribund after Employment the second condition is not satisfied here: )n that restricts speech inc rki`ti' ' ii. Dimon v. Smith, —U.S.—,-110 S.Ct. "A point.raised for the first time at oral ited States v. Albertini, 472_ ' *;;'1595; ,108 L.Ed.2d 876 (1990). But._.the argument, when the appellant is in no posi= -89, 105 S.Ct. 2897, 2906=o7 ,;'� '' ,...>`'teachings of Albertini and Clark are {nap- tion to reply, comes too late. We do not 6 (1985). In Clark v. Coin= w ' ;:nilicable here. The regulations involved in allow an appellant to raise new issues in. ;reative Non-Violence, '468 i those cases did not ban a particular form of the reply brief; perforce the appellee may r . ,expressive activity across the board .but not raise new issues at oral argument. S.Ct.wa they, a2 L.Ed.2d 22] ,,:ts''. y publicUnited States v. Rodriguez, 888 F.2d 519,; �e was the legality of a regn�,;�; �`<I,• ,•, . $�k`merel excluded it from certain • National Park Service:that, .' z •i , Property (military bases in Albertini, cer- 524 (7th Cir.1989) (citation omitted). 'Me- ng , . I _: :taro public parks in Clark). And the harm appellees here never raised the issue: ng over in a number of the K� r• • ;<, a= f`to the policies behind the regulations was Furthermore, whether or not re uired to, d by the Service, includin � ` q rg :,,`unaffected by the expressive character of do so by the First Amendment, Indiana has c in Washington, D.C.; oppo 's `'; ilia••activities affected by them. In Clark House. No one questioned :" ' j carved an exception to its public-decency. for exam le the damage to the parks was statute'for ex ressive activity. Byinter-' the regulation as such,but its y P P it the First Amendment for 4.. V. .:1 `` + .the same whether the'sleepers were camp- preting the exception narrowly and `thus �' ii' ,•;,,.• &mg;out for fun, were in fact homeless,.or the regulation a ainst a • , *}...• • the statute broadly,the district judge made' g tr, , ''• swished"by sleeping in'the park to make-a • rted to_sleep over in Lafay' { F ,• a j zr, ' ; the statute discriminate against a particu. symbolic statement on behalf of the home- orde:' make a s boli ' } , lar form of expressive activity—the low' .,.,• ' 4* `• Mesa ' 'In contrast, whatever .interest .. It ti_? r. ..iblem of homeless'•• "• ' ' . form represented by striptease dancing.. r . Indiana • is trying to safeguard by banning And this a state surely cannot do without a iupreme Court. upheld:'the` ' :' 4.` i-n- " • •rl public displays of nudity is not harmed-by; the regulation even.though;: 4 ,•_ a reason. }theatrical—perhaps not• even by night- r case the balance;between� }' w''� Thepoints about waiver and about the expressive "speech".*:an -:+,�••' • •; clul performances featuring nudity: The n - %•. } {harm done to public order by:a perform=•_` state's ,interpretation• of the statute are, mess and order, ma •weu u °,, ,,, ance'of Salome in which Salome ends the connected: We.are not the authoritative favor of speech. The-Park , ,,, as.' Dance of the Seven Veils clad only in':a interpreters of a state statute, the'state;r .„ required to make an exce ,,} ; , .''r-" The state su reme court.in Ba sin er, and ' . ., . r transparent body stocking and therefore" P. r y g nmunity for Creative Non 1. 1, •t 7 'i• the state,'s hi hest law enforcement off[ ' �,�fi, !nude under Indiana law—as •in a`perform.; g t 296-97;104 S.Ct. at 3070-.,,, r;; - Manta last fall at the Lyric Opera in Chita- cial,'in this case, concur in interpreting the- ,, fs�, f r it can be argued that the:. u_•. statute`not as a blanket prohibition of uli- z � e� ;•• go=is not of the same order of magnitude P •.,; is not required to make an:. i 5, lit nudity (an interpretation that the words ..: ,. ,.as the harm (in fright, disgust, or embar- rP oan on public nudity merely[, a a ' °'"rassment slight as it ma be caused by'a• of the statute would support), but as 'a, sons clamoring for the iex- 44. • .' person who runs down the middle of a bus prohibition of nonexpressive public nudity. employ nudity as an;el �, -` .' . `_. Y `�"i .,.';; ;;;`street stark naked or.urinates in.an"alley. That interpretation binds us, and ;demoni1 ;ive activity. ' ' ,;. a y .:.::�::,,, , , ri;',Only in the latter cases does the concept bf strates that what the state is doing is sin- Clark make clear that e „ y= ';•., i 1, s public decency supply a persuasive ratio- gling out a particular form of erotic but not expressive activity.have noy"�'�€ , :"nale for punishment. ' obscene nude. performance for,condemns ltitlement to be exem ted� 'ar.,,''"'° " Clark,*`' tion. We.,would be inconsistent in affirm2. P fihe bearing of Albertini and ;eneral applicability. '.'Au=•;y';` ,•• i•'. ; the present case is in any event academic. ins the district court's decision out of re-, "_ ' .;,..=_, spect for popular preferences and states im an exemption from In , , ,;= The defendants have not attempted to de- ushers an exemption from '- '.'-`fend the district court's decision on"the nghts while-disregarding the meaning un-, This result is sound ;and" ,,,; ,'_ ' -printed on the statute by the state's judges p, ,,T,, ground that all that is involved'here is a 1 tension with the rind le, •{' rr. and law enforcement officials.. : :;, , p p -` refusal by Indiana to make an exception to free-exercise clause of the; -.',1 ; , :s"?'',r; a general prohibition of public nudity;-they At oral argument the lawyer for;:the: ., te It tl; -".;overnment must-.=•.r •''' s'• `=;;,;..have'.not cited Albertini or,Clark;• they state said that the statute applies not only; laws. eneral applicabil-;'Y: t'i ,. ,`. have waived the point. We can with..pro- to live performances whether in theaters`or, _ i v ,, '�' ; r -, . 3,?t,<,1f• i. i p - a • t. t} ..,�, i 1104 904 FEDERAL.REPORTER, 2d SERIES , i, •;,y. �'4 in bars but also to movies with nude Id. at.316-17 4f, �_° But the state is free to act. =. . ' ; scenes, unless of course the movie is "ex- upon the moral preferences of the majority , '" F y.i'. pressive" in the sense in which "estab- only up to the limits set by 'b ' '` '4 I;a' lished" works of art are expressive. (Own- the federal.':`.. f£ ' , `4 `` P Constitution. Those limits are not the sky 3'� ', r' ' 1 ;•1:41;i 1 ers of movie theaters in Indiana, beware!) when the activity restricted b r� ,"•j' ��`' -i i He added that if the strippersY state legis=;i, 'g ' '-��. ( ended their lation is expressive activity in a sense that•,;. ' `t.) *'' ` dances in bathing suits rather than in the •r,• .) ,• $,1: I believe encompasses erotic dance per- ;::.• ,r': a ,i ,11., i; buff, this would not affect the First formances in general and the striptease in.,.?„, = '-i �` 11,0, a, Amendment issue, because the striptease P particular. The state can forbid nude danc = r ; ir l f would still be mere conduct. This statute ing in bars if it acts under the Twenty- =. ,� •; a j•�., ;; -. would not apply, because a woman in a y 9' "�tfi a'i;' bathing suit is not within the statute's i-a First Amendment, but if as here it wants to '''•:• +g�•'h;i. nition of nudity; but the statute could be restrict such activity in all public establish- ;`� , .3s ments, whether or not they serve liquor, it"'II"; 1-- ;I: amended to take her in without violating needs a reason. Krueger v. City of Pensa- ;a 'A,e H?13 i1,11 the First Amendment. (So we could have f 4r •` (,' moralspolicepatrolling cola, 759 F.2d 851, 855-56 (11th Cir.1985). *�the streets of It has offered none. Cf.Mickens v. City -a ;k;,: .. South Bend with knouts, like the Saudis.) 1} mKodiak, 640 P.2d 818 (Ala.1982). of ' ' Arl } #i�, }; s. Belly dancing, he added, could be banned, 11 `,, presumably on the same theo Indiana's law enforcement authorities . s CI ` { r3'- it is not 1 141 y,1,r'/, certified high art. He reassured us that have been backed into an untenable posi ;y� v N' `i, '�t the nude paintingslion bythe X w• Y:N .; p,!ill; that hang in museums glosses that the courts of ;` - �)l,i,�. are-safe, although he would acknowledge Indiana have placed on the statute, and are Uzi,., only a limited acquaintance with such mu signaling to us by carefree advocacy their E rt:, 2,,t, ,.,,,tif",.:‘ . �,;, tx seums. Recent events in a state bordering indifference to whether the statute sur tq on Indiana make one wonder how safe even vives or is struck down. (I think that is N., • ' el,r ,�`i ' museums will be if the spirit"of censorshipwhat they are doing, but I may be mistak >r. +rthe state after: . }li!a' is'allowed to flourish. en; , ,, li did, all, go to the bother •r r ,'{ • ' -- of asking the full court to rehear the case.) ' ,. � ,3s i,, I do not argue that legislation to be ='▪'� i valid, must have some empirical basis ;or In the America of 1990 the project of , ,,.. • ,•; '' riti I serve`some utilitarian end. The modern stamping out nude striptease dancing is 's;'• ,t ait'� quixotic. The power of government is rela "• ` �, state `is`not forbidden to interfere with .•` � . transactions' between consenting, compe- tive to the desires and values of its people. a`' t 4 ' hl l,� •-:tent-adults merely because it is unalile�to' The State of Indiana cannot take the erotic ,; ,' "''� edge off American culture. I doubt that its : i �fi show that.third parties are Harmed. `The is even dying to do so. But the sincerity,, ,'y ,,, state is free to embody in legislation' the -- : .y k,v moral opinions of its dominant groups, or --_of its concerns• is.easily.tested. -If the state 'T'r. '` 4� rh s for that matter of anyis seriously concerned with the social con- . c:.; . group influentialt ,, _14111i,,}; li with the legislature—is free, therefore','to sequences of. nude barroom dancing, and 'R "-5,::._ • make hostility to nonmarital sex, disgustdoes not trust its municipalities to deal F " .71 f+., j' at s::; 1,-' adequately with.the problem, :V.',,"'~ ' �;I -3f 1 public displays of nudity, revulsion at vul q yP , it will amend. } :•' ; 1 ; gar erotic entertainment, and embarrass• its Public-indecency statute to prohibit nude i,irk,. +> t�i ment at public displays of nudity premises dancing in.establishments that serve liquor `a`u} x° } jl of state action even though is difficult to ,4. r �' Such an amendment would be valid by vir • r ' 'rF g tue of the Twenty-First Amendment and f ground these moralistic emotions'in• prag- Y- r- 3' f tt` matic social concerns, Anxiety about nudi- would _moot the questions that divide this ir{ ""`a` • "l t` i a, a. i F`^.,sr ty has deep roots in Christian thought, court. - s • i Brown, The Body and Society: Men,'Wom- tr, -Z'1�, en and Sexual Renunciation in Early Chris- - COFFEY, Circuit Judge,. dissenting. � °l}:I --.tianity 249, 437-38 (1988), and the roots of a'. . I ; .•a The majority holds that the First Amend i #t� i yy;�; our culture are Christian. Hostility to pub- ment forbids the State of Indiana from-. ,,, e,E- �' • •t 1�� t ; lie nudity may even be connected with con- applying its prohibition on public nudity to;,;t-,; , ,; t -, ` "-� cepts of dignity and equality that are cen- nude dancing since "Indiana's attempt to- .f., ' tral to our political and social institutions. ban.nude dancing in pursuit of its [interest s • ' ash ;¢'1:''. ';;x ti -.t t•1t�.3gL411'i ff X'Y.y ''i+'n�l�-`Y$n�_ ••,,,' �.:,`iSC e!}i[f;'il OLyy� •yAp+S._*' y s X 1, s : s 8 , ., " c•r r',.4y,,'4+ �w+y''-- .+'err ,..,.c„- 'n•y - 1.7,4 ,,,,;..A.A. K- t,V,i , b isr fiir'�' a it j a ",,,,,_ •1..'• V. , _. 'Y a-.':' FR''''''..-r - ,fi-,. ..... r '�:.$k `"`.`;fit ,... .''.. i`;64 r ..�a= .,'ot�.:3:'tln t�i'il' ..�'" ' �a ., ,,: . ';'�'IE, �U= `'ES F 2d - S`' �t�; � MILLER.v..CIVIL'CITY OF SOUTH BEND 1105 6-1'I. _ Clte as 904 F.2d 1081 (7th Cir. 1990) tsut the state,is free to act t.1 public morality] is a forbidden interfer- branch. These developments certainly moral preferences of the ma'orit "` `°"`i ' P • to the limits set b J Y ''',C<`ence and restraint.because it seeks to with- have led to the progressive disruption of ion. Y. the federal a; " �w this non-obscene and protected com- the basic moral tenets that have'.held our.Those limits are not,the sky - ; ;_• unication from the realm of public dis- communities together for centuries. Un • - activity restricted by state legis=• ; :. ,`course." MajorityOpinion at 1088. :The:xpressive activityin �;�;x.`:L,: Psuccessful efforts at judicial expansion of. ` a sense that ;:, _ spiteconstitutional rights, such as the.failed at; encompasses erotic dance er-;�;� ; �,,majority reaches this result in of.the - P `k,, r-�>fact;that,the plaintiff dancers made a clear tempt to erect a constitutional right to ho- in general and the striptease in. � �_��'''��` 'unambiguous• The state can forbid nude danc- , t o ";n t statement thater they lar ere mosexual sodomy in Bowers v. Hardwick,. s if it acts under the Twee p g to convey g 478 U.S. 186, 106 S.Ct.2841,92 L.Ed.2d 140 idment, but if as here it wan . `f ,13 •,-political or ideological statement" and fur- (1986), testify to the persistent attempts to: t activity in all public establish-sto `'. 4 thermore the district court made a specific make use of the judiciary and the device of 'fir= ,finding that the dancers' conduct was "not a "livingconstitution" to create a moral they or not they serve liquor, it _` ' :..'; ,'• ressive activity." Further, as the ma- son. Krueger ,.. ';'•:.:";;�, � y�� structure at odds with our Judaeo-Chris • 9 City of Pensa-. ,ia 4s,y,A_ Jority admits,a state may"regulate expres- tian heritage. Indeed, an observer can dis-. '.2d 851, 855-56 (llth Cir.1985. ;?k ar -1{!, ,sive conduct for reasons unrelated to the cern from Justice Blackmun's dissent in ed none. Cf.Mickens v. City of ; .;, _y "suppression of.speech, • Majority.Opinion Hardwick an attempt to develop a that: D P.2d 818 (A1a.1982). ';;r�:+ ;;at. 1088, and "may establish reasonable ! , retical constitutional right "independently' law enforcement authorities ;, k ' pr.itlme,:place and manner restrictions on pro-. t Jacked.into an untenable osi= :" • ,._tested expression." Id. The Indiana pub- to define one's identity" that would have; P k' '''"' :a; =lic nudity statute's application to the plain- in essence, forbidden legislative action on .glosses that the courts of .;1 '1. ': - any moral issue that could loosely be char placed on the statute, and are "� .: ; <� s' nude dancing, like •its application to ' r f r 'any'-•other form of public nudity, imple- acterized as "victimless" (involving no us by carefree advocacy their, ( clearly established damage to persons oth • - to whether the statute sur ,:�' ,'�,, '4 rents the states interest in public morali- truck down. (I think that is rh= , yty:a.legitimate and praiseworthy goal un- er than those who engaged in the activity).; e doing, but I may be mistak r ;.;,relate As the Supreme Court properly observed in e •i_ _,- d .to speech and constitutes a valid did, all ,...; , , x,;•regulation of'the manner of any speech rejecting this type of expansive jurisprd--` go to the bother �.. r,_,{ ?° , full r• ' :;1that allegedly inheres in the plaintiffs' deuce in its majority opinion in Bowers:' to rehear the case) �, 4 .;: 1: ?ca of 1990 the project of ; ;• „<<' ,nude.. dancing. I dissent. _ .: "The Court is, most vulnerable and comes: '�. ' s-,+;Through the- analytical vehicle: of-.r.the nearest to illegitimacy when' it deals with , i':nude striptease dancing is r • power of government is rela= ,. t' '; ,,i .."hving constitution," the judiciary:has:all Judge-made constitutional..law having;little or-no cognizable roots in:the language or. ' fires and values of its people ' ' toa.•frequently permitted .the •favored ,.. - . idiana cannot take the •erotic ;,••. , ;;fir:r,- design of the Constitution." 478 U.S.:at :fill ,•.`-rights'.' of .particular::.individuals,•,and ican culture., I doubt that it:rt'='.` - -.'• � ",;`groups:,to override a legislative majority's: 194,' 106 S.Ct. at 2846. Obviously, the'4 -! r} . framers of the Constitution and of the post- 1,,'`s, to do so. But the •sinceri '' 414 `-•expression.of the common good. Ouraoci G s ty,,r •-, ';• '_'�,;, Civil War constitutional amendments never - ` is easily tested. If the state x`.,_ ' ',g;'' etk:has evolved from one espousing strict:. r icerned with the social-con �,�,':, _ '. .moral-.standards--to a-rather.uninhibited contemplated.the.type of "living" interpre- :fe ude barroom dancing, and .L ' ,; a cone.-.`:Under the flag of social and:.sexual, tation this,document has received,-includ- ,, 'thepresent ahem tea ieco nition of t;;,;,its municipalities to deal 6 ' ,•, ,;, dlvidual• freedom, advocates of. such ing P g ,•.: the problem, it •will amend 4; ; '° ,;._causes as the,sexual revolution have:nth, ; constitutional protection'for nude dancing. •' icy statute to prohibit nude . �` r " `Sty -hzedthe;judicial system to implement their These.individua_ls, who came from'eras`in GF lishments that serve liquor.` ' ' `' , Freudian vision of a society delivered from. which persons were fully clothed in public, • lent would be valid by :- 4 ahe legacy of repressedsexuality. -Alleged certainly never,:contemplated, much'less ~; vir-. s:_ itY-First Amendment and .;•3�z''' .,.•••':� :=`� st Amendment rights to the roduction, even dreamed:that the Constitution Might - g P g c;* a,;. and, dissemination of sexually oriented. someday be utilized.as an instrument to questions that divide },?--'; �j'!; this �, , i,;,' ';'.` tapes and books as well as. substantive due promote nude dancing. What they had in •; `µ z ' i%' ;process.rights in the area of abortion, one, mind when they left England for this coon- .;I; • lit Judge,.dissentin ' 'of the most politically divisive questions of; try was the protection of religious exercise, ij�j-, g k= :.pur,time, are a few of.the currently recog freedom of_ press and debate, not the.ex- '':, 4 ads that the First Amend °F.r r -__ `nized "constitutional", rights .that would. pension.of a so-called "living constitution" State of Indiana from.--' '_-'-' •x'•;`' •• 'have, .proven very., difficult to:obtain' to create a climate of moral permissive- j ;3:, bition on public nudity to .�# • ,; i through .the popularly.elected legislative ness. • :e "Indiana's attem t.,to. `<' 4,, .• ,: in L'; P ''•'•-r •• .''a I.`_Bowers,.478 U.S. at 205, 106 S.Ct. at 2851 United States Jaycees, 468 U.S. 609, 6I9; 104 :'P of its [interest::' ';, ,' =;(Blackmun, J;, dissenting), quoting.Robertr.v. :S.Ct. 3244, 3250;82 L.Ed.2d 462 (1984). - f:•F . � ,1. ,ram 11 Y. 'L • 3 I € i I. if. "' `:i 1106 904 FEDERAL REPORTER, 2d SERIES t' {' tt _ `;:� i Il I am not one of those who believes that it democratic process and that. which it c ', '1• , rx• is the role of the federal courts, through 'does not. We think we have done that c-? ';$ k: 1 • the creation of a"living constitution,"to,in today. The dissent's suggestion that leg } •' s" effect, establish a secular moral view that islative bodies, in a Nation`where more ,° 1 Xl';r 1 contributes to the piece-by-piece disman- than half of our population is women, a ,=' , , , E L tling of our historic Judaeo-Christian-prin- will treat our decision today as an invita = ', +; i ' .; ciples and heritage. Expansive constitu- tion to enact abortion regulation reminis .,.¢ 41t‘ r tional interpretation, centering upon the is- cent of the dark ages not only misreads ,rt;k Ij,:1." sue of expression in a case where the plain- our views but does scant justice to those `, it#,1 ;1, tiffs have disavowed any intention to corn- who serve in such bodies"and the people ;` f NN}}, municate a "larger political or ideological who elect them." `'iris Ill I1,1 statement" must not become a tool for a .. -_" ''ri;'' l.A,� (Citations omitted). ,- _-�' �,. federal court to substitute the moral views •`, }` I agree with the description j �> +ail, of a more vocal minority for those of'the g p on of the 'udi ,rria f�I. !i majority of .the people of.the State of ciary's proper role expressed in Chief Jus ,. '•, Indiana acting through their democratically tice Rehnquist's opinion. .In the context of c'° { ! elected•representatives. If at all possible, nude dancing, no less than in the contexts <' k 'a 1 the courts should give effect to the will of of abortion and other'important questions , p+'1,' the people, even when it means upholding of present concern, we are required to er- ," ` �'''. III �� P P P g: q P ��,� ,, ` laws that express moral,viewpoints that mit the people of each state to establish, '; 1 reflect a conception of the common good, through their democratically elected repre- r ' ' , ; that may not be shared by segments of.a sentatives, the moral climate in which they .3 n i` �, "r vocal so-called intellec al choose to live and raise their children: A s- "' • ,rl to minority. This • 5 ?P fact was most emphatically recognized in state might well prefer a lifestyle that to- :; . ;,, '`�,.' I Chief Justice Rehnquist's opinion in Web- lerates and perhaps even welcomes public °=4 , ' '• $ = ,�sl ster"v.,Reproductive Health.Services, " nudity such as the likes of Las Vegas, San '',,"a, '1,.;is U.S.=,.'109 S.Ct.3040,3058, 106 L.Ed.2d,- Francisco and others.-So be it. People ; r ., • „0,.0f 410 (1989), where the Supreme Court con- who seek this lifestyle are free to live in , • ,- i q` sidered the legitimacy of state legislation areas that cater_to this moral climate. .But ' . �' = 4 I pertinent to abortion, one of the significant many states, such as the State of Indiana, 'r` t j-; , '! '"P,f; issues of our day: -_... . " obviously wish a more wholesome lifestyle ;:E:?' �J n r ! "The dissent ... accuses us, inter 'cilia If it so chooses,that state,through its duly "1'' ,d,' of cowardice,and illegitimacy,in dealing, elected"representatives, should be'entitled _,,0 :, ; ,. r ---- with'the most politically--divisive-domes-. to-create a cultural,_ ethical-and-moral envi { : :j tic.legal issue of.our time.' There is no ronment above that.which panders to the - r doubt that "our holding,today will allow " basest sexual appetites of human beings" Yr ( some governmental regulation of abor= Their right_to select this type of environ t .'.„. •_ . ...:f.; 1 tion that would have been prohibited on- ment should.not be infringed upon, just"as der the language of cases such as Co ' we"would not infringe upon the right of a, ,•, t, _ 1: 1 ` lautti v: Franklin, 439 U.S.379,99 S Ct" other states to choose a more'"permissive` ' 1' i' 675,,58 L.Ed.2d 596 (1979), and Akron v. environment.:-Community standards are`a _ '( �'l�{{ Akron Centerfor Reproductive Health • recognized part of the`determination'of � �.t p r,a ` ; Inc., supra[462 U.S. 416, 103 S.Ct. 2481, whether.dance is considered obscene and ',."t ,ti i., k "76 L.Ed.2d 687 (1983)] But the,goal of unprotected under the First Amendment. •.; , " !''I I constitutional adjudication is surely not See Miller v. California, 413 U.S. 15,'24;_ , . ; ` .1 to remove inexorably 'politically divisive' 93 S.Ct. 2607, 2614, 37 L.Ed.2d 419 (1973) ;.,., ,,. ''Tq41 I li '` " issues from the ambit of the legislative' ("The guidelines for the trier of fact must --`. " ; r$ ` ` process,' whereby the people" throough be: (a)whether`the average person, apply ., t, ,,' , '( . ,}',+ their elected "representatives deaf with ing contemporary community standards' .1-'1. -:t',+' t; $fry; " matters of concern to them. The'goal of would find that the work, taken as a whole, i-' .`. - } i' r , constitutional adjudication is to hold true appeals to 'the ''prurient interest•..::")' 'j t ,.,, f* f the balance between that which the Con- They would seem no less relevant to the t.- -' ", , t' nia., ;, i f, stitution puts beyond the reach of the issue of the legitimacy of restrictions on .Y *�'4 -.. 13 ‘41,,,. ,I_Illi ,.. c., 1, i1.1,.... t,:., ;li,1 :,,,;41:Tit,,,,,f; ' :i.r..x.. 1 ,, • LIES - MILLER v. CIVIL'CITY OF SOUTH BEND 1107' Y zti' '` Cite as 904 F.2d 1081 (7th Clr. 1990) rocess and: that which iu-s_' •.. ,"' ' .;., conduct unrelated to speech (i.e., nudity). ner s concurrence complain of the-absence e.think we have done that-'" w ,:; Y, :='-y4: importantrecog- legislativehistoryaccompanying issent's suggestion that leg:. ' «' +.. Accordingly, it is that we of histo the ;, �`'•-:......'nize .that states and local communities passage of the statute. See Majority Opin-• a, in a Nation' where more° ';i '*:.�?1,•�• ; `''` ou h their legislative bodies are res on- ion at 1088 ("Regrettably, Indiana does not ,,;t , thr g P our population is women,"• qt''+ "" .c sible for the establishment of moral stun- record the legislative history of its stat- decision today as an invita- :r"`:: {�' \.lords that reflect their conception of the. utes"); Posner: concurrence at 1100 ibortion regulation reminis.. .; ':' ,:,;•;= ,i common good. It is not our role to elevate ("Asked at argument to explain the con- irk ages not only misreads' `; t, w ' the interests of a few individuals, thereby cern behind the statute—a pertinent ques- does scant to those? '''L'''r' ','r.=,;" r%stiflin the will of the ma'orit . For exam justice , << ,,m g majority. tion because there is no legislative histo- such bodies and the people =i,:, *,. •:r''ple, in Ward v. Rock Against Racism, — ry,;,."). But resort to legislative history' m" -: `'�A'� "il .-r •U.S. —, 109 S.Ct. 2746, 105 L.Ed.2d 661 to- determine a legislature's intent in enact- ad), '' < .""t:`.(1989), the Court recognized the need to • "� �:;:;:r_{:� �; '' �:`_ : ing a statute is unnecessary when the in-: t =-`.`; ;,, ,,;,',balance the interests of park users desiring tent is clear from the statute's terms. Ast the description of the judi= ^f` F; •sF,a highly amplified sound and park users who �z,x �,< „ we recently stated in Trustees of Iron" ale expressed in Chief Jus- '' '',it,i ,,.'°,3,. did not, rather than simply elevating the Workers Local 473, Pension Trust v.•Al- opinion. .In the context of .. '" '° `-° Y,'', `constitutional interests of the few over o less than in the contexts ;F '," "� ,moose of the ma orit statin "The Ci lied Products Corp.,872 F.2d 208, 213(7th other important questions: c=..•„=`'" '�' `, •�? Y, g �' Cir.1989): Y'. _•enjoys a substantial interest in ensuring «The resort to legislative history was rn, we are required to per- kt" � ;:; :the ability of its citizens to enjoy whatever if each state to establish; r 4. benefits the city parks may offer, .from unnecessary ... because the statute is: mocratically elected rep'r'e-' ; ,,"` ``, zk ;:amplified music to silent .meditation." clear.and unambiguous. See Blum..v: ioral climate in which the,,_ ' ;'� ` a,,.;;, Stenson,'465 U.S. 886, 896, 104 Mt., Y 3; Ward, 109 S.Ct. at 2757. Similarly, hi up- 1541, 1547, 79 L.Ed.2d 891 (1984) (where; id raise their children: A'- ';:x, .,,,::.holding the strong interest of the majority .prefer a lifestyle that to-.',;C. .:,' f°:�a of.the people of Ohio in eradicating child resolution of,a question of federal_law: ups welcomes public : . •pornography, the Supreme Court held that: turns air a- statute and the intention..o£ pie lil.._",f Las Vegas, San;:;::a `,f ` {.':"Given the gravity of the State's interests Congress, we look first to the statutory: j ' , � , r ,=`' •language and then to the legislative his-; thers.� So be it. ' 'Peopre''y��;�. ;.;;in_this..context; we find that Ohio may Y ., *, . `constitutionally• proscribe the possession' tory if the statutory. language is un festyle are free'to live'int�?��F� ,• ">t. ;, clear').... :[T]he clear language should; to this moral.climate. But ,... and'viewing 'of child pornography, ; Os- h be the. guide. to congressional. intent. ,h�as the State of Indiana � �. f':='`borne.v. Ohio, —.U.S. —,' —;=T10" more wholesome lifestyle. ,-�.', , "•'', :.S.Ct: 1691, 1697, 109 L.Ed2d 98_'(1990); :'Discarding the plain language.of,a,stat ;hat state,through its duly'°`.- ;a and.noted that this action was:distinguish- :•.ute in favor of committee reports or,oth- tatives, should be entitled . , _- '' �' able from its earlier decision in Stanley v.: el-legislative history ignores the realities • '.Geor is':394 U.S: 557, 89 S.Ct.. 1243 '22' of the legislative process. The crafting' !al, ethical and moral envi .,;-',:.' i hat which panders to-th:' `', :. L.Ed.2d�542_(1969) that recognized-a_right- ._of:specific_language often:reflects_ legis- _ �petites of human beings: `1 "- ' 6,,e.: privately possess. adult,. rather than lative compromise reached„after -_hard elect thistype of environ?:'`4 Z.-'' c , pornographyand obscene materials fou ht'battles over the means ,reach �.� � ,, ' '�.�`��,hill g . - 4 ,',3 ��;'` ' ,'�-'.:because Stanleyitself recognized-. that - • even common. -goals. •.Courts should be infringed upon,:jest as�_w� },«.� � fringe' upon'the right of 4T "..compelling reasons may exist for over-' only reluctantly turn.to.legislative his-'' ;hoose a more permissive .it` ,.% ;. riding the right of the individual to possess tory for fear of upsetting;the delicate Iminuni standards area':,;. °• ,; „%,[certain statutorily prohibited] materials.',,';, balance reflected in a finally worded of the determination"-of J 4 y . �`l Osborne,—.U.S.at—,110 S.Ct.at 1695_s piece of.legislation. In this case',,`the . i considered obscene `and` :a }P :.,� .", .=y` • (quoting Stanley, 394 U.S. at 568 n..•11,:89.. plain language' of the.statute 'is the 5,' s%, z best evidence ofits meaning.' Meredith it the First Amendments s - S.Ct. at 1249•n,.11). •, � lifornia, 413 U.S. 15, 24, :. R <;It is •self-evident that Indiana's`public [v. Bowen, 833 F.2d 650, 654 (7th Cir. 14, 37 L.Ed.2d 419 (1973) .__,44.'.:',C ; ;� _nudity statute is motivated by that state's 1987)]. , �,-�; for the trier of fact muse '': 41i:legitimate concern for'`public morality.- (Citations and footnote omitted, .emphasis he average person, apply' - ,xs Via;,_Both the majority opinion and Judge Pos . added). . .• - , -' • ., y community standards':'-'.' �`- '•,i,--,` '• -- a` 2: In- Osborne the Court believed this measure U.S. at—;110 S.Ct.at 1695. 'The Court also re work, taken as a whole, # ;••: ;- `'?'i:was necessary`because much of the child'por- noted that"[i]t is ,::surely:reasonable for the pru^pnt interest...:")• ,::-"- ;r•'- ;°;„ >4 nography market has been driven underground; State'to conclude that it will decrease the pro- I no relevant to the ,st ,Er^ L i*t'iF= as a result, it is difficult, if not impossible, to duction of child:pornography' if.it penalimc M>.ry ri solve the child pornography problem by only those who possess and view the product,there- tima�, restrictions on `,. „•: �: -. _ -_ t ;', - - attacking production and distribution:' by decreasing demand:' Id. r - i 1 w .f, 1108 904 FEDERAL' ft - R, 2d SERIES x : '' pi ; The"fact that public morality underlies some 25 states should be invalidated on •', ., h�>i Indiana's enactment of a public nudity stat- this basis." ::" ute-is abundantly clear from the ve lan - e ,; rY Bowers, 478 U.S. at 196, 106 S.Ct. at 284E i,f '► ; ; `AI '. guage of the statute. For thousands of (footnote omitted, emphasis-added). Si `#„ _:. ,i f ;' ` years people in Western cultures have con- m ; '` t, 1, ilarly, Chief Justice Burger, in his concur-s <•a Z �� n' ; sistently worn`clothing in public,even from �x ,44I•, •,t,tt lic= the time Adam and Eve wore the first:fi rence in Bowers emphasized the legitimacy ''g of traditional moral concepts as a basis for -•.•f �l3 leaves or loin cloths.• It should not come as state regulation: ) ' �, a shock that the sincerely traditional • ' t, held, • 1, a--y moral beliefs of the people, of Indiana, [T]he proscriptions against sodomy x �4, • `t (;3 ' " have very 'ancient roots.' Decisions of:''1 J; 1 would result in the enactment of: a•statu n } ,•_ h;f t 1; tory requirement providing that at least a individuals relating to homosexual con x r. ���° ic: minimal amount of_clothingbe.worn•in. duct have been subject to state interverf 1�, �i,Y. °. , ,Ili`'� '' ' tion throughout the history of Westernsa,,,: � i`. public. Indeed, no fewer than 37 states civilization. Condemnation' of those`,.p`.:, ' �. 1 a � have similar laws that prohibit indecent or practices iss. �;�' lewd exposure of firmly rooted in Judaeo- x�., ''` ?� P particular boa Ott i`; Y Party•. Christian moral' and ethical stan'y `i(4 ; ' Not only is the interest in public morality Bards.... To hold that the act of lio fi" .- , �:, the self-evident basis for Indiana's public mosexual sodomy is somehow protected .a*L. '1' $. y nudity statute, it is also an' interest the as a fundamental right would be tor, r, nT'Irr € 4„ Supreme Court has recognized:as a legit- cast aside millenia of moral teaching` G S, imate justification for state regulation of , This is essentially not a question o t*F ,r ..._ ., , , ,,, conduct. .For example,'in Bowers v. Hard #; t • 1 personal 'preferences'but rather o the ti ,„„ f..-<, �,�"� i wick, 478 U.S. 186, 196, 106 S.Ct. .2841, legislative authorityofthe State..;;; t j 2846, 92 L.Ed:2d 140 (1986), the Su reme , s ;, p find nothing in the- Constitution de }.,=� , t ;: 1., Court rejected" the notion. that.traditional 1priving a State of the power to enact _ t j•'M' i interests in public morality were" insuffi- the statute challenged here.... _,i, F ` 1'i• l ` cient to justify a state's prohibition of ho- ' t'=4.R' 1;1 t Bowers, 478 U.S. at 196, 197,.106 S.Ct�at� ' } i mosexual. sodomy. The Court observed: 2846, 2847 (Burger, C.J., concurring) , e .. [R]espondent`asserts'that there must 3• .. .(em;,'r' -�-�`'}i �, phasis added). . •-,��,�•r., ; r '�' ;li -sodom tional basis for the law[against As well as improperly failing to "rec g ` E y]and that"there is none in,phis . nine,the.legitimacy of.Indiana's interest S - { ty v 1t case other than the presumed"belie"ofa , •..' j .f public morality, the discussions of the.statet ,- majority of the electorate in` Georgia ' t 1 + g interest in "public`morality" found in,both " ` 1. �- ) :.: that homosexual sodomy is immoral_-the majority opinion and-Judge Posnea.t' = _ , t 1; and unacceptable. This is said to be an concurrence demonstrate an ina ro riatY i 'iti ; inadequate rationale to supportPP P l ,,`- ,. 'the ly limited conception of this. legitimate � )` ,1 -law.' The law, however, is" constantly state interest.- In belittling Indiana's inter; t', '` .' based on notions of morality, and if all est in "public morality" Judge •Posne e -0 '" 't'rl , ,1 laws representing essentially ' moral s ,5 a' states: "Many of us do not admire busyTl °. i'? - • choices are to be invalidated under the bodies who want to bring the force of IaW • air • •Due Process Clause, the courts will be "down on the heads of adults whose harni7e '-,,;, l�, very busy indeed. Even respondent less private pleasures the busybodies-find ,.,;: . •,'" ''I•` 4 makes no such claim, but insists P `" �...l f ` that revolting. Posner concurrence at=1100a , -.. 1 , ¢1I majority'sentiments about the morality Judge Posner's statement.merely reflects;. . :1.'of homosexuality should be declared in- differences in moral values amongthe. 0 - ' -- N adequate. We do not agree, and are. p` ` i�, . ulation. Conduct that.a more vocal minors' unpersuaded that the sodomy laws. of. 'ty considers•to be the work of "busybody s ', A t.F' 3. Hardwick severely undercuts the persuaside same court of appeals whose judgment was} f'.�: authority of.the Eleventh Circuit's decision in versed in Hardwick,and its rationale that tradi:'-�• Krueger% . �,City of Pensacola, 759 F.2d 851, 855- tional moral concepts cannot provide a legit_ ,,%; VOA, .56 (11th Cir.1985), cited in Judge Posner's con- imate.basis for state legislation is certainly ill-" C t f' -currence.. .-See Posner concurrence at .1104. consistent with the respect for such concepts t ie v" '' l. ?i r Krueger predated Hardwick, was decided by the - Supreme J P Court expressed in Hardwick. °a J. t61' c' r �,�.�� :fi '3 • `, ': t t V1t M r ;SCp! { .1 wF ! ;1 E�a,� F, 5", _ ..='1'•.,-."gin s�,'.�i':_ as a ..,' :"'. . � .. 'e • t'. SERIES ' MILLER v. CIVIL TCITle OF SOUTH BEND 1109: „.. ' ` '•'', ,,i Cite as 904 F.2d 1081 (7th Cir. 1990) • J_.as a , V, J -,.; fates should be invalidated onrk •', _ '':�nies"reflects the implementation of the less The clearest way in which nude dancing a,w ; r .,`vocal majority's deeply held concerns and harms the' performers; the audience and U.S. at 196, 106 S.Ct. at 2846•`';1 • fi :r should be respected...Personally, I. not society in general is through the degrada- titted, emphasis added). Sim i- ' '. ;mind being labeled a "busybody". or a tion of women that results from their treat- Justice Burger, in his concur- •.4 n j e.t „ prude" as I write to uphold the-moral ment solely as objects for lustful male sex- rers emphasized the.legitimacy ,,;' ' xy ethics, ideals and principles of the majority ual passion's.and appetites. When a worn- moral concepts as a basis for �:?-41 ..• ..;of the people of the State of Indiana speak- an is stripped of her clothing in the pres- ;ion: :' ?,;, l ••t•'! ;big through their legislative representa ence of a throng of observing males; we oscriptions against sodom f� Y •v: `'+tives.• In writing along these lines,.I would undeniably'underscore the notion' that a y•i- ` s " Y pa.-.. woman exists solely for the sexual satisfac- `ancient roots.' Decisions of'� #� � ';,�..4�_�':add`that neither others nor Myself are - relating to homosexual con- ?'; c v '�.ternalistic or.wish to force our moral be-' tion of a controlling group of males. In )een subject to state interven-j`�-;r • ` .' �•1',�r liefs'on society. We merely recognize'the' American Booksellers Ass'n, Inc. v. Hud- 1 , 1."f,':Yk'.::i;..t... shout the history of Western`�;�-'t 1 �.nght`of the people, and in this instance the nut, 771 F.2d 323, 328-29 (7th Cir.1985), ' "� � { '•"'Y 'populace, of the State of Indiana to imple-' affd 475 U.S. 1001, 106 S.Ct. 1172, 89 Condemnation of those; :-;':�'fi i,,��;_,5• , .,; s firmly rooted in Judaeo-�.:,.`��;��•,a�:`.,merit their beliefs and conceptions ofprop- L.Ed.2d 291 (1986),we noted the legitimacy moral' and ethical Stan- ::;;r . .,er moral principles through their legisla- of a city's concerns for the dignified treat- To hold that the act of ho--r:J- ' .. '''.1;:`,' 'e This right I believe must be respect- ment and respect for the female gender' y p �` !'-c. ' `ed• ' •. - --. " .. that motivated its adoption of anti-pornog= odour is somehow rotected fi` '�,'. . - rs° y. - 'mental right would be to ,, rr :k °�Fiirthermore, when..a state'bars public raphy legislation:'' millenia of moral teachings;= : ;m• • - ' iiudity, including nude'dancing, on the'ba-' " Indianapolis justifies the ordinance'on' isentially not a question of 4` 't 4sis-'of its concern for public morality;`-it the ground that pornography affects' references'but rather of laS4-- 4t;" :T.,,::{does not act as-a "busybody. Rather;'it thoughts. Men who see women de icted- authority of the State. `il "`''' 4 -`"`'sact's to eliminate the real harm that can a• g P �. �.-4as subordinate are more likely to treat; • kg i ? "Constitution de' ; ... ''result from permitting public nude dancing:: them so. Pornography is an aspect of- ;tate .-he power-to enact_s.•` '_ ' <The interest in public morality that Indiana -,;,� �� � dominance. It does not persuade people challenged here." "' relied upon to•enact its public nudity stat so much as change them. 'It works•by J.S.at 196, 197,. 106 S.Ct.•at?": `';"r • "' t �is'based on the simple truth that nudi socializing, by establishing the expected zrger, C.J., concurring).(em- ,:,�.'ty,-=while-appropriate and beautiful in some• ' `and .the permissible.::In this.view.-por "~i'•,!/.1 :` '-"contexts may also prove deeply offensive • i4i",;'••- . {• - . nography is not an idea; pornography is •• ' ,r.'{and'harmful in,other contexts. :cAn artist, the injury �'1: improperly failing to recog"4,;: •.,..,.oftentimes finds it necessary. J ry• - ',� •,L� ry in his or.her nacy of Indiana's interest in. 'i,,�- --- There is much to this perspective. Y Be- . ,,: profession.to make use of a nude model,. the discussions of the state ; : . - "•5 �i lefs-are also.facts. People often actin blic morality" found in botlik- `' .,�:i:Mnd nudity in that case is free:from mde-, P - -.'cent.connotations.: .Certainly,-any form of--_ accordance with the images and patterns opinion- and-Judge--Posner'ss =i.j • they find around them. People raised in nudity whose purpose and manifestation is monstrate an inappropriate "' a religion tend to accept the tenets,of Lception of this le timate. ,. .;:E the; arousal :of sexual fantasies among 4,w ,4 that religion,.,often without.independent . In belittling Indiana's inter- � F• a, groups or in public lacks any qualification: examination. People taught from birth morality" Posner. : : for_social acceptance. Public nudity clearly tY g that black.people are fit only for slavery ,? breaks•;down the acceptable social norms • of us do not admire busy-.. _.- " rarely rebelled against that creed;,_, be: g ;.gin , ;that have evolved from our Judaeo-Chris=` it to bring the force of law,-<'•�,:. ; '•.".._..,. , fiefs coupled with the self-interest of.the lads of:adults whose harm`{ '-}. ' ""• ;pan foundation: Most importantly, a_real 3;' ': ;'r:consequence of nude•dancing is the loss of masters established a social structure asures the busybodies fine_''1', • • ,:•.. ,;,t Y ;":,„` human-dignity for the,female performer that_ inflicted great harm while enduring sner concurrence at 1100:.s �r; ' • :'��'`<_.. �. and sometimes even those who observe the . for centuries: .Words and images act at statement merely reflects r J•=r: •-e the level of the subconscious before they • coral values among the,P9kRA a�„� ` ass as'arece. inal values Indiana s nrohibi- •„f•,- expressed � p persuade at the level of the conscious. bt that a more vocal,minors:. y= € -,,; ;`' Even the truth has little chance unless a be the work of "bus bod-l':;F, " F. ions-._of public nudity, :far from being_in- ..statement fits within. the framework of Y , ' ' struments of puritanical repression, are ' ,,, '' r' W. g completebeliefs that maynever have been subject ?peals whose judgment wastre-}N� "j '` ;r'w". Means for establishing: ,,and J ick, and its rationale that tradi- ?''• ,F1.=` — '�:`,1<_. Healthy integration of the human personals- to rational study. nceptF nnrnot provide a legit- a;—'''.:: "' state lion is certainly in :°"�, r ia: ,ty.and thus preserve the dignity of each Therefore, we accept the premises'of ne re;i, s u such concepts the i .:, ?i, ,, ;s: and every individual, the primary require- this legislation. Depictions of subordina expressed in Hardwick.- _ ;;-.:r- r' A' `i'- ment for wholesome social interaction. tion tend to perpetuate subordination. i`7 r f' , V z4Ya�4v. +4 �r tr Ft • y I ,, • -,« 1,,, ,a• :I - r ti ` 1. 1110 904 FEDERAL REPORTER, 2d SERIES - � �`"• ,-FI j 1f i, '' a, , �L- i :; The subordinate status of women in turn with others, or that depicts people. .r' , ' .41a ! , p p p en. s" 1 IF , leads to affront and lower pay at work, ..gaged in sexual practices that would,toy y ` r. s, N:: l i L f'• insult and injury at home, batteryand people �• Tad J rY most eo le be considered humiliating; '�F' !t " rape on the streets. In the language of "`'i_ t f Indeed, forms of degradation.represent: ' : a- i the legislature, `[p]oography is. central the largely predominant ' ' `. ` 'rr' ' g Y proportion-"of.�; ,� r� a •" '1' s}I in creating and maintaining.sex as a ba- commercially available pornography.":a3�r ` ' '4 k F �i,: sis of discrimination. Pornography is a 4 0=s w ' , t--�'4.• systematic practice of exploitation and In',the related area of child pornography• ,` } .r ..-tte , `. subordination based on sex which differ- the Supreme Court has recently observed 4 n l= f r; entially bigotry n that "`The legislativejudgment, s1°' 3 harms women. The bi of andg as well . st ' contempt it produces, with the. acts of as the judgment found in the relevant liter, ,°, • F'7 + aggression it fosters, harm women's op- ature, is that.the use of children as sub l: ,.1; x`1; 4-• 'i �4r i ? portunities for equality and rights [of all jects of pornographic materials is harmful _. v ;1 1' • kinds].' IND.CODE § 16-1(a)(2)." . - to.the physiological, emotional, and mental L's';4'` • , s.,;. 1 (Footnotes omitted).. Although we invali- health of the child. That judgment,•wet' .. t sl, "3,:tk , L i,1' i•'' , l`,. think easily ` ;• `+,�+ s• dated the Indianapolis legislation involved ,. passes muster under the First,. � � ;,,• �- 1` Amendment. Osborne v. Ohio, ,a F ri- k ! E`}(( in Hudnut on the basis of viewpoint dis- '" —U.S. - ' `F k il?•; ,a « ;,ham pit F; 'h :: crimination, 771 F.2d at 325, there,was a —, —, 110 S.Ct. 1691, 1695, 1093;,, , .; w,,• r try I ;.y clear recognition that the government's L.Ed.2d 98. (1990) (quoting New York.;v.'t�,*'k` e o t ,4• I'r i+l concern for the degrading effects pornog- Ferber, 458 U.S. 747, 758, 102 S.Ct. 3348,'t '`+ N,t raphy•has upon•women was a`Iegitimate 3355,73 L.Ed.2d 1113(1982)(footnote omit - ,'•-r, -.-"!'c C i i and 'proper basis for legislative •"action. ted)). •In light of the harm.nude dancing,''` �t, • ,r �� F. This recognition was corroborated in the causes.to the female gender, including t• hey-^Y,� ''k 4 i , i Final Report of the Attorney"'General's psychological damage to performers.that.is , - '' l� l 3+ . Commission on Pornography:p ' .''" = ' ` • ! +- r •;: • : : so frequently a byproduct, I see no reasons :-, ^''• • d t } , • i • An enormous`amount of the most sex- why the will of the,people,expressed-m t•hef'�� ,44 1 it wally explicit material'available, as well legislative branch, should not be permitted;; _. at::n t fh • t; as much of the material that is somewhat to:prohibit this activity and overcomeaanS;' ,i ' •-} .D I`E f I less sexually:explicit, is material:that we alleged First Amendment right. that Asa �( 1 -r' 'f would characterize as `degrading,' the based on a foundation of•quicksand i hr'c-,•:-. ,, ( -k,;4. term we use to encompass the undenia- . . -: • •- �' I`' II' bly linked characteristics of degradation; ,rn my view the state's interest in"protec ., #, y�� yII' domination •'subordination " and humilia= ing the welfare of its populace, includin`I'` . ,-t # } P , g 'y �s - �'li'jt • lion: The degradation' we refer--to-;is but not limited'to the female entertainers, • , r} '; ' • ---- degradation of people,-most often uiom= through_a_-ban._on nude dancing is=both1 U : }4 en, and here we are referring to inateri- analogous to,and more significant.than•tie :-� '. 'u-` I gels., 4 al that, although not violent d icts state's interest in animal welfare(nrevere ziti•. a g , eA .(P., ven I. people, usually women,•as existing sole- tion of the"torture and killing of animals' ,,;`" `i •{• i+( . ly for the sexual satisfaction of others, that Judge Posner would hold sufficient ford,- • Tc 1 ', usually men, or that depicts people, the government to ban. the allegedly ee ii "• 'a , ,F. ,�s; „ • -,usually women, in •decidedly subor- pressive activity.of_bullfighting. .Judger . 1� i r"` •dinate •roles in their sexual relations Posner notes that: Y �,,, 1 F, 4. Attorney General's Commission on Pornogra- materials not commonly taken to be'sexually`� ` i JI phy, U.S. Department of Justice, Final Report explicit enough to be.pornographic. ::ButyasTyy ' x's ='r 331-32 (1986) (emphasis added). The Attorney with sexuallyviolent materials, the extent-o£'' t � �- d;� r r :-fl General's Commission went on to note.that the effect of these degrading materials niay, �Y r ri i t "Although the category of the degrading-is not turn substantially on the amount of sexnals'`-,• ._. '`l # one that has only recently,been isolated'in explicitness once a threshold of undeniable r a some research,in the literature generally,and sexual content is surpassed. The category'. t Kti "' z in public discussion'of the issue, it is not'a therefore includes a great deal of what wouldt;j,!,; •'`'' %. :II', ?.� small category. If anything, it constitutes • not be considered to be pornographic,..andi- • i;.• r", ti-`•.'.▪_ i '� '`�: • . somewhere between the predominant and the includes a great deal of what would now:be ; :a y: i €,1 overwhelming proportion of what is currently • held to be legally obscene,but includes much',;,} ,' . ( i„ J : i;. 'standard fare heterosexual pornography, and •more than that." • . . -','l'.a+, •• `' !,�,: �a� j is a significant theme in a broader range of Id. at 334-35. - ';1.3Jn'., ;• t+ IA "%-"u r -• :'F:*, n.. 'S.:lc 'f^:a''... _ ""t� ,"T ,,",?•';a=�cn,f1-.-aaz:4 Sw�-t•!Ks:"`•* .. F.-s r _ < <..r i 1 ,' .. ".�efr • • "',�' ram. . • :IES 4$ MILLER'v. CIVIL'-'CITY.OF SOUTH BEND 1111 -- r '' ., Clte as 904 Fad 1081 (7th Cir. 1990) • )r that depicts people en s ,, eir•`-"In calling bullfighting `expressive,' I judicial notice that in no•fewer than three - I al practices that would,to•{`k*4` .` , may seem to be implying; despite.:my of our decisions in the past two years pro! '- j e:considered humiliating; ,. '' ., V disclaimer,that.bullfighting.must be pro- titution.operations have been based in nude of degradation represents i nitected by the First Amendment from reg- dancing -establishments. See United redominant proportion ` '!•% s`ulation..or suppression; .for,does not.the States v. Marren, 890 F.2d 924,-926 (7th • available pornography."S•O V '-: 4$4Kamendment protect' freedom 'of expres- Cir.1989) ("Michael's Magic Touch served rea of child pornography;`'; .5 ,' •• ' ,:: n.•s•ion? I repeat that I do not believe.that • alcoholic beverages and entertained :pa= urt has recently observed; "",- • sethe First.Amendment protects.bullfight- trons with nude female dancers who;when :.3.; : . �'. , ,- g, :But I insist that bullfighting is an not performing on stage," -solicited the'dative judgment, as well ,i ' ~ ,` F ;�= * xcexpressive activity.. To deny this-would club's patrons to engage in sexual activities found in the relevant liter;_ fi.' �•. e use of children as siih- 'e-,k` t� ,?�be to play the unedifying semantic game in rooms located above the club"); United b-1 77, „4,;,called.persuasive definition. • Bullfight- States v.•Doerr, 886 F,2d 944, 949 (7th - tphic materials is harmfulY".t . ` - in is forbidden not because it is:.not , x ,. • tea.- g.. Cir.1989) ("The prostitution activities .. al, emotional, and mentahr;!„y, s - .- ti3 _ill e.:expressive,but because in American soci- were concentrated in three businesses that • tild. That judgment,-we,,,S,';h A 'ety its harmful consequences• are were nude dancing establish- es muster under the.First,.r, `jj ` r g g p ' ti., N a ,•thou ht_to outwei h its ex ressive Val- ments...."); United States v. Muskovsky, )sborne v. Ohio, U S ,-', x i 3 `r ,,, ]Fue.., • 863 F.2d 1319, 1322(7th Cir.1988)(Prostitn- S.Ct. 1691, 1695, 1091}'' ,y.w .Posner:concurrence- at 1097 (emphasis in tion operation based in nude dancing estab- (quoting New York v ''.' ' •''$,,4; y lishment where customers were enticed to £original). In the same wa , I.believethat 747, 758, 102 S.Ct. 3348`.+ ; ::E;the•degradation of.women involved in nude purchase "very expensive drinks ... in-ex- .113(1982)(footnote omit : .dancing constitutes, -.a. "harmful-.•conse- change•for sexual favors"). See also.)-J. • ' the harm.nude dancing n quence" of this activity that "outweigh[,] ' Weinstein and M. Berger, Weinstein s Evi- ,,_. ale gender, including the,`4i-•`4F:. •.i;�:its'zexpressive value and would allow,.the dence 11200[03],and 200[04] (Setting forth •i• .:!o. age tf,-^,'rformers:that i :° • i state in its legislative wisdom..-tto act,:`,to requirements•for taking judicial notice of ' rproa :I see no:reasonz; .. '.•tv destroy a market for:the exploitative use „ 5,1 "legislative facts"): •Furthermore;in Cali ;, ).pe6inc,.expressed,in•theL ; ,o f i,' women:. .• : a: ,.,:i fornid v. LaRue;'409 U.S.109, 111,93 S.Ct. i,J should not be permitted, `, . • ' nNot:only does nude dancing in and:of 390, 393, 34 L.Ed.2d 342 (1972), now Chief ::!ill 3tivity and overcome°rain itself degrade woinen,its•elimination is:par- Justice Rehnquist,described 'the prostitti- t;,r iendment right that .is _ '' •�•.'44ticularly important because of its•close as- • ' , : g P Lion and other sexual activities accompany (± fi+.:�• ttion of quicksand ± ku` ''- ,. j`_ :sociation with a:more devastating example in' nude'dancin that motivated a ba'iij`on ' ti{3��;t > • .'.ram 4 •`r , `of�sexual exploitation of..women, pr•ostitu- nude dancing'in California: :itYP-• V4tftt tate's interest in piotec x R ` its o'u ,„• ,, t . '4:' :,'ion.1 The link between nude dancing,pros- ,.«• .- „-.; . .. n,:r;;., _'s p p lace,•includ ng` <w: -: xh .: " Customers were found engaging in oral 4d,.•li. 1s : , htution-and other.:sexual•.crimes••is•.well the female entertainers ,•,., ra+:: copulation with women entertainers;•cus- j iW o max:• : established. '•It'is.:common knowledge that is r. nude dancing is,bot - � tourers.engaged in public-masturbation; 1 lore significant than'''''?e �; ` prostitution is:a likely result in.a situation •• n . 71i., ':dahere live .performers'.sexually.stimulate 7. d`customers placed rolled currency ei- 9}fix animal,welfare-(prevent•r r 4 k` n'.audience and there often exists :the they directly into the vagina of a female ; , .i and killingof animals' 4 '� 7,:.4 entertainer, or on the bar'in order that l; .,},G Or• , .. probability of audience access to these.per- - - ,-.,:. .+���,: would hold sufficient for• .. � ;x = she Mightpick it upherself:' Numerous d a r .,,formers for the performance of sexual.ac g ! „ t ban the allegedly- ex ��t`', « other forms. of contact between •the 4 • • o,, � }3 ; 7..tiv,ities. As Judge,Posner•notes: The;as- - -- t‘ ;,1s' 1f..bullfighting, :.'Judge ,o�,,. :t?-,: mouths of male customers and tfie wag ; i n,,{ , oclation between erotic-dancing and prosti- t. "' •- -. '• -•,.�s.,00 t :�'' • ,',3�"tution, goes back to, Roman:times- [•and] •`-nal areas of female performers were re-. : ,]N�7 monly taken to be sexually`I k l'-'' bump=and-grind .dancing is said to have .portedd-to have occurred. . be:pornographic.-;But as F'" _, originated in. .the bordellos.of the.Wild Prostitution occurred in and around;suds, t'I' :nt materials, the extent o£ `; • 1; West,..." Posner concurrence at 1,101. licensed premises, and involved some of ' ~ .,: degrading , &n1z n •- ' materials-may `We.need go no further than our own cases the female dancers. Indecent exposure _ 0<<.k Ily on the amount of sexuaP i t • a threshold of undeniable'�?,-4 ' -. to.discover•that nude dancing and prostitu- to,young girls, attempted rape, 'rape it- it)Ir surpassed. The category 4 li .1 , tiion are partners coupled not only logically self, and assaults on police officers,took great deal of what would ' :' " .- :,and historically but also in empirical, place on or immediately to'such' '"i;'a adjacentI;f' to be pornographic,-and-77, '`",F`''present day reality. 'We can properly take premises."'s "',` :al of what would now be i i bscer, includes•much l ',. >:•, "" ":> ,5:,;Osborne v. Ohio, U.S.=,—, 110 S.9. 6. In addition, the prostitution activity that so - 01691, 1695, 109 L.Ed.2d 98 (1990 t often accompanies nude dancing most assuredly, �� '{{ - - :�1ofLi� ��;•��� h,•� . -- provides a basis for the infiltration of organized i`{,�f L J ;V rce;n. q 3 ;R , , ., 1., • ,--t .„. •rimilr '1,!; ,,c-.' . - •, .• 1,.., t tl,of, . . . • . ''','.::R. ' : ', !.ii.- • 1112 ••904 FEDERAU-REPORTER,"2d SERIES . . ,?ii pr, 0. t 1 i' ,? , F • •Thus, I agree with the observations rif-Jus ' "[O]n the basis of all the evidence 17ie !,1 i h.,if 4 f 1 i.‘:;., tice Scalia that businesses,: such as thoSe have considered,from all sources, and.-onti',„ ,s, ;'..•.;. -;. 1‘;1,•4 ':;,)i. f-11'.;. that exhibit public nudity, are engaged in the basis of our own insights and experg.,'..c,l, . ...•• .,. '.the sordid business of pandering,'..'!, ences,. we believe we are justified,:ii? e,-t-,.‘ .... FW/PBS, Inc. v. City of Dallas, --I.T.S. drawing the following conclusion:•Over a';'...4,-5. . !, —, 110 S.Ct. ,596, 622, 10T L.Ed.2d 603 large enough sample a population thaagt-t; -:',..-,• -1- . i,,,i,.1., .:, i 1.4 t'gic ., • (1990)(Scalia,J., dissenting)(quoting Ginz- ' believes that many -women like to'be:;,7... .r .1`,T i burg v.. United States,,383 U.S. 463, .467,-; ' raped, that believes that sexual violence4,-. .86 S.Ct. 942, 945, 16 L.Ed.2d 31(1966)); and- ' or sexual coercion is often desired or-'7,,,t`.!*,.., :'::-...`„1.• ..: t • - ,;,iatil,i li..- • that "Mlle Constitution does not require a appropriate, and.that believes that sei(i'.;;, ,. .-_-','•,;', '1,. / State or municipality.to permit a business - offenders are less.responsible for'their.: .',41,,./,•1•i.i:r• ,, that intentionally specializes in,,and_holds acts, "will commit'more acts of sexuali., . itself forth to the public as specializing.in, 'violence- or sexual coercion than would a."i';'/*4:-.'''',:'-`: • ..-2',.4:1:'L, .!*. ?, ;It?' ^.1' ... live human nudity." Id. Although population holding these beliefs to a less- , Judge Posner does not believe that the - er extent. • -.,--.1 f,.zic:,-:., -4 -,'•-,^. ii tayl1.!i., l a t Indiana statute follows this approach, even . •' We should make clear what-we have t-4-• 4•• he notes that:. .• ... • - - -.--i.--! i.:,.,.. concluded here. We are not saying thatf.TV• - '1. '' 4`411C •-;,•'- . , "The incremental expression associated. - everyone exposed to material of this type W4 Aii,..„„, .. .:' with the movement from practical nudity has his attitude about sexual violence -'401,j/41. it!: • to statutory nudity may well be slight, , - changed. ,4We are saying- only that the f and the association of nude barroom' • evidence supports the conclusion that •,,i.,:-. -,..- }.1,iii:' dancing with prostitution may be a,good -substantial exposure to degrading matei>Y1.•,:ii-. enough reason for outlawing that Mere- : 'irial. increases the likelihood for an 4indi- c,4'.:-.."., . ...., 4 . -A.. '''',541 ''i.'-- •.--- ,ment to tip the balance in.favor of..a rule -'•'-iiidual and the incidence over a! large;t ri . .. prohibiting nude dancing-in.bars l-iatinpi ': population that these attitudinal changes ' -- ...4 , :;! .,...,..,...,.:,_::... —7- ,. ' in theaters,.where the performerSdonrit will occur. And we are not saying OW, ..,,rc ; mingle the customers" •• -.:,:-''X-'' everyone with.these attitudes will-ciia20','":',. .-.,,t r. with ;[•i.-.: :, - .- ' . ..-.,' Posner concurrence,at 1101. ,:In any eyent, ., •mit,an act of'sexual.violence or.sexuali.,;.; it.is..quite clear, even inthe;concurring .".,.,coercion. ' We are saying that-such.latti,...,:-1::,y,";.:,... ., tudes will increase the likelihood for an -,...., . . judge's opinion, that a limitation on.public• ..1 '14'li,., :-.• , . nudity, applicable to nude rdancing,..)could serye a legitimate,and proper:interealin public niOrality through its .siippes'airiii'rif ,1 i..•-: : - . prriStitution. . individual and the incidence for a popi.ili,';'",, ...-ti9n that acts.of sexual violence,•SeXig,,;':. • . '!ffeoereion, or unwanted sexual aggreg.O.o*::::'";,-•' - ', "---;',' -,'-,,.,.4-:";:.'41-'''.;-: •will occur. ilThus, we•conclude thatiiirr, b- -7stantial exposure to Material of this typv,,,„.:..._:,.., Nude dancing-can-also raise darigeilfOr—c '71 .4 - . ::•-.7 f d ' •• • innoCent,persons, particularly women,:who often.find themselves viciimiiedbY i4se who .have: Witnessed such -Perforniiii-COS. •- , ..j 1.=t Certainly there is:a powerful'state"interest - I ' 'el-of.-.bears some causal relationship to the-Ir,,.':,. „.it.,: •• ' sexual violence, sexual,coercion,-:V,T: .'• ., . unwanted- sexual aggression in Ihe..pritx,i'..,.;- lation so..exposed.".;,:-- :• .--. - . ...: '4-1,."-;.,. ....":„. i.., , • i. ,.1. P":1: ' in preventing sexual assault, Nudedanc- :Attorney General's-Commission on Pornog , '.. • .: F ,,,41;:,pil,, ,-; .ing, through its exeitation Of;male.`,S-exual raphy, U.S.:Department'of-Justice, Faicii1:,),,,,',,,,-: . .• .! passions, might very logically result;in',a Report.333 .34•••(1986). • - •., -1C•i"310.44gr sexual assault The Attorney General's ' Although rape arid other Unwanted sexik.,.1 , - -,. , ,'.. ,,'..).', ''r, - -',' • - Commission on- Pornography,'specifically al attentions.'are''the-inrist direct manner,,,,...„!...!. i .,. II • ••.-• . noted 'a relationship between exposure rto which uninvolved W.Onlen may find tlikin--.-,1' it* •''41.1t.;,f'',_ti . exhibitions or material that.degraded worn- selves harmed from-'exhibitions of nude . ,-4,`,.',',i•. - en and rape and other forms of unwanted dancing, the vicious and deprecating atiPf.,..-P-. ., ,...,14 1,!.,i• . . ---i,tY--, - _ sexual-aigression: - : - '' ' -' : -"-''; tide's toward women that areas -develoPed' ,,•,.: ... , , - . „. .- , _.:g._ . .-. - . .. • . • • • . - . :,.: i.,..-M-,,,, ,., crime into a community. For example,the.At- ' family,controlled a'strip joint'where numernk:;, torney General's Commission on Pornography persons have been arrested for,prostitution-re-;*s:1,,l' '",•471.`".` •._ ,..15,1 '4 t 1,, • . ' • ••noted: "Michael Joseph Glitta, one of the two' .flated offenses." -Attorney General's Commission , . i''''ir i ,' . major pornography distributors in Chicago,and on Pornography, U.S.'Department of Justice,y:,'1.' .:-: • . ( -,:,' 1, ,!,- l',.\... 4, l' , 14' a lieutenant in the Accardo'organized crime Final Report'1059 (1986).- ..,4:4 •,... .".,`..;•,"; ''..o,' ' ' '--.,f .ke.:, ,i .'.,;..11,,, • ,,f, ,-,AApiC,14:, j • "N“''-'10,0",'--i,`.•-.. i!il •,:r.'irzy:-.34,rt.' T17.;NiA kik*,• - gt ' ',,.`t,,..t.. .7C-, ,,-,,t-,',tt"'i;t1'#:: , 44, .;`1'4," I 4'.1"W'''''ail'''.'k:,:'91:'ig-51. 4.61, X,74.1:eii,,i A?417K.M.;‘a v,44,,,t,t;.;,„,•.v.,4, , .,.. ,; ..,.,.--. . d `'-',:, ES . '" ` .^ ' MILLER.:v. CIVII::CITY'OF SOUTH BEND -1113 r, the basis. of all the evidence- ::�� Cite as 904 F.2d roar (7th Or. 1990) +',t We " , • , a+result of nude dancing have the effect of largely detrimental to the neighborhoods nsidered, from all sources,and onr.' ,_perpetuating many forms of improper dis- in which they are located..:.. [S]uch is of our own insights and e • cri tnation against women. As the Attor- establishments are likely to exist in close xPen-'.7' • ;,,:neY.General's Commission on Pornography proximity to areas in which prostitution we believe we are justified: `w''' " the following conclusion: Over a ';c• r - noted: : . exists, and in close proximity to estab- iough sample a population .that _4' "We need mention as well that our lishments such as bars featuring live sex- that many -t;,' ': -iti=; 'women like to:.be� <G� .,�-; �cufocus on these more violent or more coer- ually oriented entertainment. Asa•re- hat believes that sexual violence + ' cive forms of actual subordination of sult, most people would consider such al coercion is often desired. or''yN•';F • ;°,..• `{,`"`, women should not diminish what we take establishments environmentally "detri- ate, and that believes that'sex4`= ''''E` ~� 'to be a necessarily incorporated'conclu mental, and there is some evidence indi s are less.responsible for'the ir"Y,' ` , ' , nh,!:-Sion: Substantial exposure to materials eating correlation between crime rates `' • •a•.�''.of this type bears some causal relation- and the particular neighborhoods in commit•more acts •of sexual',-�;":r ,' 3r sexual coercion than would a;{ , ';¢'9ship to the incidents of various non-via which such establishments exist." n holding these beliefs to a less- '�`‘. "* °lent forms of discrimination against or - • ' ,- .'s+' ;: ' -•. 3;1`iSsubordination of women in'our -society. Attorney General's Commission on Pornog '''" ''` '- raphy, U.S. Department of Justice, Final ►uld make clear what we"have; '•� " r To the extent that these materials create here. We are not saying -•'z" aft or reinforce the view that women's func Report 385-86 (1986). Indeed, the Su- P g fat:' '��" 931tion is disproportionately to satisfy the Preme Court has explicitly permitted zon- ex exposed.to material of this type.p ;,. . „ , �, ing regulations impinging upon adult ori- ,ttitude about. sexual violence?;•,, ' ' 'sexual needs of men; then the material We are saying 4`. ` ,�wt11 have pervasive effects on the treat- ented establishments because of this type' ymg' only that-the a, of undesirable effect upon the nei hbor- supports the conclusion:a.th ;'` r , , ' ,E'',;_�,.ment of women in society far beyond the P g I exposure to degrading mate?` ,• `3 .z incidence of identifiable.acts of rape-or hoods ,in which they exist, holding that ses the likelihood for an.'indi=-'' '' ; ;Bother sexual violence..... [W]e-feel con- , such an "ordinance represents a valid gov- -'' '"`fident in concluding that the,.view of ernmental response to the `admittedly se* f the -'^,�idence over a= larg:,_A *" ousproblems' created byadult theaters;" that e attitudinal chart ' ' . women as available for sexual domina- g� 'motion is one cause of that discrimination City of Renton v. Playtime Theaters, Inc., An,: W� are not saying tha .,l ' ' 4 475 U.S. 41, 54, 106 S.Ct. 925, 932, 89 • rith these attitudes will-cowaI ' A mg that degradingd we 1den materials ell in bears a caus= ( ). Furthermore, in an era of-sexual violence or;seiL.Ed.2d 29 1986 Ve.are saying,that such,a ; f41 "' alg relationship to the view that women: where sexually transmitted diseases such _ought to subordinate their own.:desires as -Acquired Immunity- Deficiency,,Syn- , ncrease the likelihood.for;it§ , . . ', =---:=.g ' nd the incidence for a. o ula rf`: -.:: and •beings to the sexual satisfaction of chrome (AIDS) are prevalent, it.would.seem P P ,, .,, men. • apparent that nude. dancing establishments;_ , is of sexual violence, sexual,;. '' - 'r;! -si's t ,i • unwanted sexual aggression;•;''.'''. �.''`,`,Attorney,General's Commission,on Pornog- and their common side effects of prostitu= Thus, we conclude that sub•% • ' '',- phY,; U.S. Department of Justice,'=Final tion• and other sexually related crimes, sure to material of this z • •%Report.-834 (1986). - would offend •public morality and�ublie • 'ausal relationship to the',lev-'--,, — ' "'-+1 While public nudity, including nude da• re health through their effect upon the inci-. a•,. ,-_.,sang, dence of "fatal and near fatal sexually violence, sexual coercion;`oir,'• offends public morality in each of. :the ` mal aggression in the pope 'slays,previously enumerated, it also can transmitted disease. �1•,:..: Posed.", ZA.. `'` . :?`� . •+::+;,.;result'in other significant harm to. public '' In his concurrence Judge Posner.essen- �al's Commission on Porno'g''.- '.• '. 4.. ' P g Ytially arguesrely up morality In addition to s awnin Sexually that Indiana cannot on partment.of Justice, Fina�';r=:'•� :"..,Nlated.crime„nude dancing;establishments the, broad conception'_of public morality (1986). r : ''are frequently magnets for crime in gener- that' I have just considered, because 'it -,,:,1 .. ,+ ,•,;.;,; al: The> Attorney General's.Commission on failed to verbalize.all of these interests - and other,unwanted sexu•14'- `1-"': .-- , porno•graphy has noted: '-' t; •its,briefs and oral arguments-in the current the most •direct manner'in:. 4m-.--':,:, ± ,+, �:�. '1 r;; ' y� j,- . _$ - _ , For many people the harms caused,.by litigation. I disagree. ' As .we have just d women may find their " :"_'-`' from exhibitions of nude w sti pornography relate in part to the effects developed, a state's interest in publiccimo-, ious and deprecating'.atriy ,' c. _ on communities and neighborhoods of" rality is a many faceted interest designed men that are'develo ed as x• 4- �;ithe establishments in which.such materi- to protect the citizenry from the-psycholog- p • t� •- als are commonly sold.' Whether it be a ical and physical harm that can result from s'•':'peepY pornographic y, g.' a'strip joint'where numerous '' ,, ,. ee show, an `adults only! public nudity, includingnude dancing:. As. n arrested.for prostitution-re: ,;`: ' •"�` "..'.. 'theater or a so-called 'adult bookstore' we have also a le islature's`in- nor = " io developed, g ieral's commission '"'� ,� 1 •there seems widespread agreement that tent to rely upon this multi-faceted interest US. 7tment of Justice * e4 (198 ,. '- • 9' s '."-'virtually- all such establishments are is obvious in the verypassage of a statute s, t P g y t; «.t _r IP • � y i 1114 ' 904 FEDERAL REPORTER, 2d SERIES „��' • �� barring public nudity. In particular,.the self-evident reason why it is desirablezto ` '- + " i ' relationship between nude dancing .and have the populace.wear clothingin o "`:e`` {r' ' ' E L rder.;;,�Rr.prostitution is so common knowledge that for it to implement its interest.in public 4k. - 1' it.is unnecessary for the legislature.to spe-P morality through a prohibition on'publice *1, , 4,;1 cifically mention this concern and the al- ,_ ,,, • ' }1 j • leged.lack.of legislative history is hardly- nudity applicable to nude dancing. ::;aFou . "i i., worthy of comment. There. is no doubt I respectfully disagree with the inajori . ' * 'i f :: - ,. .that Indiana's attorneys would have little ty's reply that the State's interest in public; :42, .' I -'problem in spelling out the state's interest morality is insufficient to permit the,appli ",�`, f4,{ r. in public`•mor to th• e` < ' . •1 j „ this.court, a situation we frequently'over- plaintiffs'nude dancing because the State's<1,' , ii look under the guise of judicial economy. advancement of its interest in public moral=: : ' } " This same comment might very well be ity "must operate within the•proscriptions` a -, ' made concerning many advocates who ap- of the First Amendment,"Majority Opinion .•-•'?i, -,-A , ,Pi pear before us. However, I am-'uncon- at 1088, and "Indiana's attempt to ,ban?': ,: ,�, vinced that their failure to explain in min- nude dancing in pursuit of[this] interest is•'4'••, ute detail everyaspect of the broad con- a forbidden interference and restraint,be-r` x' - 'ii;i P iE','; cern for public morality that legitimately cause it seeks to withdraw this non-obscene '?0,:-'- }, ,S' motivates a ban on public nudity,applicable and protected communication . ., 4, ,o. to nude dancin from the„, ' ��' dancing;'should require a holding realm of public discourse." Id..(Footnote A`'"'*'' #�: that Indiana did not, in fact, rely upon such omitted).. . ; , 1 ,:iZ ill. Ei a broad conception of '` ,�efii < ( P public morality. .„ ,t f; • i.' a, ' These concerns'should be self-evident to an We are'concerned with an Indiana public ,:— i. i 1 ':i educated man or woman unless we are nudity statute that has'been declared''valid':f z., , ' Intent on creating a'red herring. In this on its face. State v. Baysinger, 272 ind • •. : ,2- 236 3.97 N,.E.2d 580 1 'is ":``f ( I regard, I' would note that the' a. ( 979), appeal des-:;F j'K,; �l ' '1,t upon detailed legislative expression of'ev- missed for want of a substantial federa e, •� cry reason for Indiana's public nu• dity;stat question, 446 U.S. 931,'100 S.Ct..'2146, 64',,., ute.is•distinctly at odds with the.use of the L":Ed.2d 783 (1980). .In a previous,opinion r,••" - �a s. concept-:of a• "living constitution" ,:that we,recognized the B.aysinger holding as ' , 6 1-' ` clearly: departs from:the intention of:.the 'authoritative for purposes of•this litigation_.1':-,.. r,l'e i ; Founding Fathers.• Certainly..the Founders Glen.'Theatre, Inca v. Pearson ".802 ]!2d y'`"-; ' '�� '`'s"' ' lived in a' societywhere people y 287, 2 (7th Cir.1986). Thus, this,is an a T • " 1;, p p generall88-90 `n " ' 1 s� .remained fully.clothed in public and.would "as applied" challenge wliere"we are'conk . cerned only .application +, to the efo_.. tional :right to freedom of. expression-,in- ,plaintiffs' activities-" Therefore;we ,+t- �: h !` chided-a..freedom.to dance. unclothed.;in must"limit our analysis of the constitution + # ( public. Yet, while there is a clear.willing- ality'of the [statute] to the concrete cad y- I 'n,,. r fi ness to utilize the concept of a "livingbefore us Member's o the Cit Council '; P ; .. 3if `t' constitution" to�permit any form of argil- v. Taxpayers for Vincent, 466 Itk'-18g,:: ''s;�, r' l�il, . - . % rA ably expressive conduct to obtain First 803, 104 S.Ct. 2118, 2127,'80 L.Ed:2d�'Z72 L F" Amendment protection, there'is a contrast- (1984),and speculation concerning"`whether w ,' ,'fit t h' . ing outright reluctance to give, the same or not the'state might.enforce this sfatu"te ''° n _ •: i latitude'to the'interpretation`of'the legsla- if the routines were''"chor`eographed as: ' : -.. tare's interest in public'morality. Because part of a graduate Ph.D. thesis,"'Major' ": it is so obvious that clothing is. normally Opinion at 1086,7 if the nudity was in ,.: ` 4',r'"� " ,,':• required in'a•modern• society, a state must "movie," Posner concurrence at 1104,•'or m `" �„� ,, not be required to undergo the time-past`- "belly dancing,"Id.,is simply irrelevant I ' ` 1 ' `tell .(' ing effort of explaining each and 'iVey also'am at a loss to 'understand the'Krele-,,,, ,. ' ,liv ql pli + eli 1 ; ` I i z i:. 7. Obviously if a dance was part of a graduate Sion).. The expression involved in that situation z ' , , .i:` Li Ph.D. thesis, it would be accompanied by writ- contrasts sharply with our case where.the danc , ' j . ten argument (reasoning) explaining the ideas ers'have, in my opinion;neither'exhibited`�tto t k s ' ,t+' 'the dance conveyed, thus coming within'the • contended'that their activities were intended`to r; " parameters of.the First Amendment (expres- express any idea at all. See 1116,,.•:mIr .e 'f =a s i i p' ', •cxi+ti ' i +1' s „ r •.. 1,, 1RJ� . V • • a' ES `" .- MILLER v. CIVIL'CITY OF SOUTH-BEND • 1115 •% = x% -, }` _ Cite as 904 F.2d 1081 (7th Cir. 1990) ,n why it is desirable to .A", , 4:1-J z' =vane in' these proceedings of Judge Pos- public.nudity statute, which implements e wear clothing in order ,`t t ,; .. ,uer's•complaints-that a statute violates the. Indiana's legitimate interest in public mo- . ;nt its interest_in public _ 1; .a:„, Fa •Constitution when it impermissibly discrim- rality, is a valid regulation of the dancer's a prohibition on public r;,%.r. ;1: ....:`mates against'"a particular form of erotic conduct and of the manner of expression to nude dancing. - ri ',is r ��; `tN 'but not'obscene nude performance." ••Pos- allegedly inherent in this activity.9 •- _�r,'1[k . u' 'ner concurrence at 1103. While all Of these Indiana's public nudity statute is a 're- iisagree with the majori-:�,;;;��';��l''rq''�'•�t�`;s-• • concerns might have been relevant to the striction on the manner in which persons State's interest iepublic ';`e,: :;i ,K , earlier-facial challenges to the public nudi- appear in- public in the State of Indiana, icient to permit the apph •4, x p �a ; statute, at this juncture of the litigation applicable in public parks, streets and )lictnc nudity statute to the ,•, ,mt w..r ,4`,.;;• when we consider a challenge to the'appy- buildings, whether or not the involved indi s because the State's ';=_ "`[1",, 4 :-v s interest in public moral 4� ` . ,�k,� cation`of the statute to the conduct of these viduals are engaged in allegedly expressive P 7 - •'dancers we are 'concerned only with the activity. The statute is similar to an inde- x within the proscriptions ':a`. '' •�;: Statute's ti' statutes actual enforcement history. _ It is cent exposure prohibition and its very lan- id is n's Mattempt Opto ban �•� '' y great t'o' engage in academic speculation guage makes clear that it is neither aimed ndiana's attempt to .ban _7F...fa; ,, .fix. and theorizing about hypothetically possi- toward nor limited to nude dancing, but • tursuit of[this] interest is r'�;„ ble applications of the public nudity statute rather prohibits nude dancing among other Terence and restraint be- }' ti "s ' _,,;that might or might not improperly restrict forms of indecent exposure such as "moon- withdraw this non-Obscene';;; �;,b, +` ..a'- :' �.a .� -. r � protected expression, but such speculation ing," topless sunbathing,bottomless poetry :ommunication. ;from ,the, i,r• ; `is•inappropriate at this juncture of the lit- recitation and any other activity,expressive iiscourse." Id. (Footnote j'. �s '.., 2.:-. ;' jet *i. ,, gation. Where, as here, the only concrete or non-expressive, that results in public �'°'=•�� � 1 's�,,;�` example of enforcement of the statute con- nudity. -As even Judge Posner observes in ied with an Indiana public "' r, r , tamed in the record involves the'conduct'of his concurrence: • ' at has been declared valid)»:x.:,',;,•-,,,,�.;°the plaintiffs, we.are limited solely to con- �•"The[public nudity]statute does not ban to v linger, 272-Ind., - -`.' sideration of whether their activities are striptease dancing; it bans only, strip- 58( 9), appeal ass r ` `constitutionally protected from the prohibi- : tease dancing that ends in nudity, which ofa.suostantial ederal ' , `s''fo ofpublic nudit contained in Indiana's is so 'narrowly defined that a woman' ry : 3. 931,-100 S.Ct. 2146, 64, ° :-, „,,,,,facially 'valid statute. See •.Vincent;:466 wearing only tiny pasties and a G-string 0). .•In'a previous'opinion�� *i, ,� • US.;at 803, 104 S.Ct. at 2127.8 • ?` : - :is considered .clothed. So perhaps-:it is :.� t� merel the manner of the stri tease that he Baysinger holding asp "' • I a ee with Jud e.Easterbrook s.diss_ent y p purposes of this litigatio' x; • _ g is being regulated,and regulations.of the Section.I wherein he considers;.how the �- Pic. v.•Pearson,'802 F 2d .4', �s= lication of Indiana spublic nuditylaw to time, place, and manner of expressive q Cir.1986). Thus,this"is.an 'u` ` : " activity are..treated more leniently-.than the:nude dancing present in this case-!ean= w ..:-.... Menge where we are con } . .:outright bans.".... . . . ,' ,, r� .o ,�,_statutes- a permissible ,regulation of alleg- �' t the statute's application ,,#s edl ' " _ v y :expressive_conduct,-for"reasons:,un- Posner concurrence at 1101' (emphasis:iii,. . activities:' Therefore, we related to _speech__and properly,concludes original). =The Supreme Court has-iitade' ' nalysis of the constitution-.�� € that"laws against public nudity apply even clear that' = '"`: } ;ute] to the concrete-case',•. ' •` ,, -= "- if someone,wishes to use nudity as an input even in a public forum the government ;bers.of the City Council'7,fi 5'^' _ "-into,an expressive,performance.",;Easter may-impose-reasonable restrictions oil ✓ Vincent, 466' iT S.'�78g,#" a )rook dissent at 1123. •As,explained here- .the time,'place, or manner of protected 118, 2127,'80 L.Ed.2d 772 -, r.,... r, rOer,'I .also amconvinced that_Indiana's - speech, provided the restrictions `are.jus .lation concerning whether ,. ` :'7' [night enforce this Statute "(i r; .- g:. Applying "as applied analysis;-•it'wouldap- 'ever, because the Indiana public nudity statute ,, tc �c." , pear arguable that J.R.'s Kitty Kat Lounge•and can legitimately ban the nude dancing of all of 4 were choreographed as err • `L . " r ` i ' t `,° q thonal claim because theirc�onduct was constitu= the plaintiffs.' t ,te Ph.D. thesis, Ma,ontq w'c, ~:; ::.: _: - . .L r_-;il.^�-:, :. 'r a'.. a s"`. tionally ;unprotected.since they 'attempted'to 9. This result is not surprising in light of the if the nudity was in �, - concurrence at 1104,or m „� ti`- t" conduct their nude dancing in a'state-licensed ;Supreme Court's recognition that the "standard ,1' tlbar servin alcoholic bevera es in which nude •of United States v.O'Brien,391 U.S.367,88S.Ct_ Id., is simply irrelevant^t`I : t ;,; iN+ ,6dancing could be completely banned under the ' ;. 1673, 20 L.Ed.2d 672 (1968); for validating-i. >s to understand the rele- K ,':b twenty-first amendment. See Ciry of Newport u , regulation of expressive conduct, ..::in the atinglast t facobucci,479 U.S.92,95, 107 S.Ct.383,385;93 ,,.ti analysis is little, if any,different from,the Stan; ssion involved in-that situation .� L.Ed.2d 334(1986) (per curiam) (State."re la - �� `�'° . toryauthority Twenty-Firstdard applied to time, place, or.manner. 'restric- with our case where the danc .,.�� [under the Amend- tions." ,Clark v. Community for Creative Non- , opini• —,.ither exhibited-nor„,., ��;�>"ment] includes the power to ban nude dancing Violence. U.S.288,298, 104 S.Ct.3065 3071 t .37 ieir a� .es were intended to ,. v � as part of a liquor license control program".):�It i at an. See p. 1116, infra. , ,,.t{.:.,t+ is unnecessary to consider this possibility;how- 82 L.Ed.2d 221 (1984). . -.r min' •'.77 7 v 'rc`+,,'7t`3taw ; till "i t i4x z •, c , * ' y E 1, !',.,,,.!, ;i,j ' 1116 904 FEDERAL REPORTER, 2d SERIES- .:.'3 3 I d* I �. ` ' ' Sustain di b '�`. tified without reference to the content of not one of the plaintiffs has ever asserted s;' Less deal - 1,; a t 4'i 3 -�`..I ess Pal 31y the regulated speech, that they are nar- that her conduct was intended to convey 4 ,'- �,, =''„r,lcourt's ac . te„ f'F'-1i?'i rowly tailored to serve a significant gov- any message,much less a message in oppo- M ernmental interest, and that they leave sition to the State of Indiana s vision;of j.;1', ; in.light o { ! 1! open ample alternative channels for coin public morality. Section II-A of Judge �, ` ,Ethe tour Easterbrook's dissent effectively deinon- #t sty n even .the .^= ;=i '� .!y and v. Rock of the information.'" strates that the district court determined x r S — U.S. .._ Sitting a !' Ward v. Against Racism, that one dancer's true purpose was not,to : w,.si 2753, 105 L.Ed.2d 661 } t , ..weighed t#' ' —, 109 S.Ct. 2746, ex ress an idea but"to try to get custom- 4. 1. , ., . I ` P Y l'rA , t,,i • (1989) (quoting Clark v. Community for ers to like her so that they will buy more U S e56 Creative Non-Violence, .E U.S. 288, 293, drinks later," while one other dancer fea 4 - x �., , • " * z84 L.E( i �'' (e S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984) tured an act with "no choreography,". and • , ' ''i' (emphasis added)). E 3° ;;there a . � 1111' ( p ,. was paid based upon the number of drinks , ' '` In applyingthe legal test applicable to a purchased." , Easterbrook dissent at 1123 �4-t, ' a ';deuce, 1s ,4 1 ``ur.Ili . time, place or manner regulation, we begin _cannot _ � ;,�: As the counsel for one of the dancers stat • 3 kt'ilf. ;; with the question of whether the State's ed at oral argument, and as Judge Easter ° }4. t `�:10a riti a, i..., application of its public nudity statute:to brook notes in his dissent: t ; rf, P -; ;k l '; the plaintiffs is content neutral. The Su- "[TJhere is not a larger political'.or a :''`'; r, they t politic +, preme Court has stated: ideological statement being made. Ida `~" xty .0 . "t+ `'t in determining trial c t d The principal inquiry not contend for a second that this zs t, s;3duet` 1 `!i� • 'i1, r 1,, content neutrality,in,speech cases gener- true. I do not contend that thereF2s , w * { _' ly. or manner cases ' '', lit e, ally and in time, place, some idea being expressed. We have 3, �, elect' _ ' said that in keeping with the language t w ,� f' ` � in particular, is whether the government p 9 - � , 1,�;,; �;i=3umbt • ' i has adopted a regulation of speech be- of the United States Supreme Courtszn ,o ts3 /'`'` ,r �ii; • cause of disa reement with the message Schad that entertainment as_well as r € '.. 9aside g :b* n it conveys. The government's purpose is political and ideological speech en3oys }` �revie tiffs . , i� II � First Amendment protection 7ha ,j { 7 ffs� � ..the controlling consideration. Are la- ; �_ ' u oses .unrelated: to all we have ever said." r gE ,�� P i' $ i; • then that serves p rp 1 q ,,,' r.Wand osE ij the content of expression is deemed neu Easterbrook dissent at 1123 (emphasis l'Tadd , J Am `i tral, even if it has an incidental effect:on ed). Indeed, the questionable nature of T£ .6' ' g i some speakers or messages but not oth- . any constitutional protection for any.form �„ t, ' " gr' I' " ' ers. Government regulation of expres- of nude dancing was emphasized, iri'the' ;' *4 axna 1 t 1 }il sive activity is content-neutral so-long as sixth Circuit's recent opinion in Wal=JuiceY r G�' .X' i �-i! it is `justified without reference to.the Bar;' Inc: v. Elliott, 899 F.2d 1502'(6th *x�, *°ric a -- Cir.1990) where the court observed chats 4 n 'ayl content_forof the regulated speech.' ..Coin- R' .*"� j.�'F�l�. iY-:4'�1 to • dthe outright ban of nude dancing perml._,_~: .� ,3�so �� h, munity Creative Non-Violence,su- ,� -�i i,�, pra, 468 U.S. at 293, 104 S.Ct...at 3069 tea under [City of Newport v. Iacobuccz, 3 "'� �t ', ` nc ,,, 4! “A (emphasis added)." , , 479 U.S. 92; 107 S.Ct. 383, 93 L.Ed:2d 334 ' e'` is ,',cam i I Ward, 109 S.Ct. at 2754 (citations omitted). (1986) (per curiam)] and [New York State a � s I .1'` 's`i K`r i �ir,;1 The majority asserts that Indiana's apph Liquor Authority v69BLlla c , 452 357 (1981j_1`r= ri( 1 r i cation of its public nudity statute in'fur- 714, 101 S.Ct. 2599ather„plainly indicates , #i'; ' c �, therance of its goal of promoting 'public (per curiam)], ' i • •,,,..4- q -,,P. `,,xi ; morality is not content neutral because: that.:nude dancing .is not a. fundamenta,. .,.: "i '= "In meetin this intended goal [public mo- right entitled to heightened scrutiny'under , ! , 1�{ Z C"'�' kf'A i� t5�v rality] the statute directly restricts activity the due process clause:' Wal-Juice Bar, `: A � '� *;.!a in the context of this case precisely because 899 F2d at 1507. ..This is a -vie herein.;:. h k f �.y «r , it expresses a particular message contraiy contrasts with that of the majority x ys7,`ti �`E ';s s +? ."' to the le islature's prescribed vision." Ma The district court'found_that the dancers, ,,r gand ;" � �c z° , a; t ' " on Opinion at 1088,n.7. The majority's conduct was not expressive activity," , , ,r� {,; 't u j tY P , ��, ;+�_ ��y��; statement •is factually inaccurate because as I understand the law, we are bound ;� ` - in ., � ,, a v f; .�.•S iY'1. ' --. t ^.- F'..' 2. ��• i 1' 10. Both lacobucci and Bellanca were cases in broad. state power to control nude dancing _ � r�^ + ``*�irxR"; which the Supreme Court recognized under the :establishments that served alcohol. . ' -a" " g ;; h ' Twenty—First Amendment to the Constitution a ,' "t . ;, C'� tc�s 14— z f ixi t,yti:. ,_�,f'' ,,p.y 4 • '{ it. A:# .;,,,,,. `fit 4,"�.ct £ t 'n 3 n �N'� .- - ,. - 'rtlK :,R 'E '' �`�` V:- • ER a,`:; , MILLER v.CIVIL' CITY OF SOUTH BEND _ 1117 +'= `l Cite as 904 F.2d 1081 (7th Clr. 1990) e plaintiffs has ever asserted- ,- , . „;=sustain district court findings of fact un- vision of public morality.` All Indiana re- iuct was intended to cone 3 Y {`:less clearlyerroneous.- Federal Rule_ of much less a message in o q'='x''°�;, , ,,.Y quires is that in expressing any message AAoo-., ",ICivil 'Procedure 52(a). "If the district they desire to convey, the plaintiffs abide State of Indiana's vision;:of,# .: ' 'h w.':3court's account of the evidence is plausible by a requirement of wearing a minimal ty Section II-A of Jud 41 c, '`` ge�� � ,• � '�� .in•light of the record viewed in its entirety, amount- of clothing and covering that must dissent effectively. demon-V t, • '; •` ",1fthe court of appeals may not reverse it be obeyed by both those who express opin- he district court determined '' =; even though. convinced that had it been ions favoring and those who express opin- sr's true purpose was-not;to.r ,; ,,'�1: ;,..;sitting as the trier of fact, it would have ions opposing the State's interest in public ea but to try to get custom • " '-_weighed the evidence differently." morality.'' The Supreme Court has recent so that they will buy morej3l 4 Nf` �. ,. -+:i 1rAnderson u.•City of Bessemer City, 470 ly decided that the First Amendment does while one other dancer,fea- Si--.,; Y` z c U,S. 564, 573-74, 105 S.Ct. 1504, 1511-12, not compel an exemption from generally rich no choreography,"and ;s<<`, -' •'-M,84 L.Ed.2d 518 (1985). Similarly, "[w]hen applicable criminal laws (drug laws) that upon "the number of drinks F '`` �.,.., y 1.:.thereare two permissible views of the evi- incidentally affect the exercise of a liberty 3asterbrook dissent at 1123. x , ; x gene,the factfinder's choice between them (free exercise of religion)for one of the dancers stat z �r._. - protected under ' . ,-cannot be clearly erroneous. Id. at 574, the First Amendment. Employment Divi- iment, and as Judge Easter- , t�' +�"� £� ' Re- his dissent: = �" ;:: 'i is t105 S.Ct. at 1512 Thus, in light of the sion, Oregon Department of Human Re- �,": ; 1 .* plaintiffs counsel's clear statement .that sources v Smith, — U.S. — 110 S.Ct. not a larger political•.or~ � •` � ' !atement being made:"Ido`}` ._'`, ,. ,Daley were not communicating "a larger 1595, 108 L.Ed.2d 876(1990). As the Court fi :political or ideological statement," and the noted, its "decisions have consistently held fora second that this is,-� t,, ztrial court's finding that the dancers' con- that the right of free exercise does.not o not contend that there'y ua;- ' ., lduct"was not expressive activity," I am at relieve an individual of the obligation•to eing expressed. We have :» , ; '?a loss'to understand how the majority Can, comply with a `valid and neutral law .of keeping with the language i ` fi, ;elect'to come under the ever expanding States Supreme Court:in'`; ;•-, P g general applicability on the ground that the vi wxa.... • `"~, umbrella of-the "living constitution,"•cast law proscribes (or prescribes) conduct that entertainment as,well`as E 9aside'the "clearl 'erroneous" standard of ides ?cal speech enjoy I ;t;•_.. y his religion prescribes (or proscribes).';'' • 'meet otection. . Thiifs•,e' °' , ';review, reach the conclusion that the plain- Smith, — U.S. at—, 110 S.Ct. at 1599 ,ver said." ' •'' i' x;. :•.,.:-- ', .•R�tiffs sought to convey a message that op- (quoting United.States v. Lee, 455 U.S. • :•.- ' v hosed Indiana's concept-of public morality 252, 263 n. 3, 102 S.Ct. 1051, ,_71,ent at 1123.(emphasis add; i`. 1058 n..3 Wand`create another new and glorious First L.Ed.2d 127 (1982) (Stevens,.J.,'concurring ie 'questionable natures of i � { Y�. :_Amendment protection.' ~:•0': in judgment)). I'am at a loss to be able.to -; -' 11 protection for any form ` .' ' n9i'--' , was emphasized` in the, ;' In the final analysis,however,it does not -comprehend how the First Amendment pro•;• ,�ilatter whether or not the plaintiffs sought :,vides a dancer's alleged exercise of a First -3 :cent opinion in Wal=Juicei, L !iott, 899 F.2d 1502,(6"'-'1`r''''',,• �K'�tt convey a message of opposition' to -'Amendment .right any greater freedom '' the court observed that rr r 'diana's' concepts: 'of public morality. from 'generally applicable criminal _laws 1-of-nude nude dancing permi t i ' ;._ ''diana'_s,public nudity-statute is Intended --than-is enjoyed by an individual-attempting - '' of Newport v. Iacobuctn, ,4 `• ,,-•soleli. y"to ensure that neither expressive nor -to practice a First Amendment right.to free , S.Ct. 383,'93 L•Ed.2d 334•.Y • ' .. non expressive'conduct violates public ilio- exercise of religion. "`"It rarely has been •n)] and [New York State `,'* '` • F•4•ality, an interest wholly unrelated to the suggested that the constitutional'freedom y v. 'Bellanca, 452 U.Sy 5R •.•h suppression 'of speech. The State `of for speech and press extends its immunity-,` i '4& 'Indiana does not seek to muzzle the" mes- to speech or writing used as an integral ,. )9, 69 L.Ed•2d 357 (190 W-• ••• , .3 ,9,., rather plainly indicates t',,,. 1. sage'of disagreement with its moral vision. part of conduct in violation of a valid crimi #` 'he plaintiffs ' g is not a fundamental �, remain free'to express opin- nal Osborne v. Ohio, US. eightened scrutiny under`'4 '''' ' `°' ions or to perform dance Movements that —, —, 110 S.Ct.`'1691; 1695,• =109 y �, _- would reflect their o osition to Indiana's L.Ed.2d 98 (1990) (quoting,New York v_ lause. Wal=Juice Bar, -' • --•a, . PP z�o This is a 'view that n 1! P •" 1r 911. In Clark v Community for Creative Non-Vio- sive and part of the message delivered by the •t of the majority herein ?,. ,r:-:,, "•lence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d demonstration does•not make the ban[on over- i< •f t " '-•221 1984,the Supreme Court rejected a ou g camping] y ,r•found that the dancers :r.;,. ( ) P ] �' P ' ni ht cam in an '•'less•a limitation on the P positiongovernmental " manner'of demonstrating, for reasonable-time, expressive activity" and ." - -� �� 7 of" ro4esters' that a �' � �:.�? , iw � 'camping'ban'violated the-First Amendment be- place,or manner regulations normally have the -g`ie law, we are bound to lti} cause it interfered with the expression that the s;; purpose and direct effect of limiting expression � • ,:' • ,,,„ protesters contended was present in their over- but are nevertheless valid." Clark v. Communi- to control nude dancing m tt.'„ . ="night residence in a symbolic tent city. The �` 294, servaA-'i^ohol. .'` „4,.,.. Supreme Court observed: "That sleeping, like ty for Creative Non-Violence, 468 U.S.288, 84). ,a;; �t ` ' r •< 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984). ::Ni ,µ, f : the symbolic tents themselves, may be expres- •. • _. • • 0':.^:� l Iz �.`4 ). At - '•� ix• ;..a•4•'i�- +- �ii;'ittitxt:2i':� - S:'%F c • '3 tt { . ? ,�/y. ' r i1' 1118 . •904 FEDERAL REPORTER, 2d SERIES " r< s� Ferber, 458 U.S. 747, 761-62, 102 S.Ct. Similarly, when the majority's view of con , .}':-- 5 `;, • 3348, 3356-57,73 L.Ed.2d 1113 (1982):that tent neutrality is applied to Frisb P; - ' - • '� a, s i "I quoted, in turn,. Giboney v. Empire Stor- Schultz, 487 U.S. 474, 108 S.Ct. 2495, 101▪-` -i r `.sW ▪ R k_4'*tk : 'f ++ k '1 I • age & Ice Co., 336 U.S. 490, 498, 69 S.Ct. L.Ed.2d 420 (1988), a case where the Court:: � ,. ' y� r • '�` '' 684, 688, 93 L.Ed. 834 1949 Althoughgovernment's ( )) g held that the interest in resi- :::',NA i'V i ' � Indiana's public nudity regulation may dential privacy justified a ban of targeted x`= 4`= ' ` have "an incidental effect" upon persons , it _ . I' r i,'l, P residential picketing, the governments in- r ,* who attempt to incorporate nudityinto ex- ' $• -t+ z 5)'_' f 1 P terest would again be considered directlyi �s, pressive conduct, an effect not felt byoth- , �' • 4° related to the suppression of speech be �`�1� t+ �" s 1 ers who fail to incorporate nudity into theirn ;i r ' fcause the picketers' expressive activity"in':• ,.-, x 4 �,, ,AT I; expression,..this "incidental effect" is clear- .. the residential neighborhood expresses a Y - Y' , � li ly justified by Indiana's proper and admira- *;;fix *; F ' message reflecting their opposition to this , ; 4-, 17 h i ble, concern,for the promotion of. public governmental interest. The Supreme ' a , ,t' morality in contrast to the State of Wiscon- P .�.• c• • Courts validation of the restrictions "in • } r:r'=., ` • t ail sin.12 This is a legitimate interest un k: ; i( =a z t' '" both cases underscores the fallacious na- t�," `r`r S-1' '' i • 0 related. to the suppression of speech.tl ture of the majority's interpretation of the j yl • If the majority's view of the legal theory concept of content neutrality. ° t, 1 '5 1 c,: of"content neutrality was controlling law a t•s ,i •. �I M.g,i state could never regulate the time, place Indiana's public nudity statute . also'{ =j,,w' , or manner of speech to further an interest "leave[s] open ample alternative channels '� �"'i `' 11:. unrelated to the suppression of speech be of communication." Ward, 109 S.Ct..at!,,-4,;,•,,,:..:.„:;,:;,,, :T:,, ,t r— v! ; . t � :� cause any attempt to enforce°such a re- 2753. . The plaintiffs must only remain.at-;':; w `" tired in the barest minimum of clothinj • ;r t< �.j striction would constitute the suppression g - __ ,tits � , - 3 .1Y.tiui i of a `:`particular:message contrary to the during their dances, a requirement thatt; ' -le slature'shardl tin edes the communication of the Yl> "•; xi legislature's prescribed vision." ;,:This be- themes P ., ' N ; comes especially clear when-the majority's themes "of eroticism and sensuality"13l ° '/13 y# interpretation of content neutrality,is'ap- that the majority believes are found in the.a tit.' ., ;; : r ..,y"i plied to the facts of two recent cases:in plaintiffs' conduct. Complete nudity is not 6y �`- ° ' lk i;l .which the Supreme Court upheld "govern- indispensable to ,the plaintiffs' supposed; a : a � . -• +' 1 mental time, place.or manner:regulations. message of "eroticism and sensuality,".be= :'1 alb! ' -When the.majority's.interpretation.of.:con- cause there are myriad ways in which j,i 't * ' 4, �r tt,1 tent,neutrality is..applied to the facts-in plaintiffs could communicate their "erotic .- • Ward v.."Rock Against Racism, —„U.S. and"sensual theme while clad in the mini - y,- + :. --, 109 . S.Ct. 2746, .105 L.Ed.2d;_.661 mal attire the State of Indiana requires.,y ,.4 s•(k` + "4',. (1989),a-case:where.the Court held that the under its public nudity statute. Indeed, ,- -` -,..v*{° -' ' f ;: -government's interest in a quiet park justi- strippers wearing proper coverings have • r s ` ` z fled governmental"restrictions on.-the. .vol- long conveyed the alleged message :Of .x `* 7''. ;' ij t ume;of music"performed in the park,.the "eroticism and sensuality,"that the majors-' • . . ' ; .j t �`, governments interest would be considered ty has divined in the plaintiffs' conduct k`, �` , te f-' ,I iy .directly ..related.,to.-the suppression, :of Thus,."ample alternative channels" remain <.- ;,. speech:_because,.the musicians' loud music for the communication of any message the %; . • ; il ,{, would express a.message reflecting their plaintiffs arguablyconvey, .;4,: a ,,t �� „ guabl wish to al-;,,:` , j opposition to this governmental interest though I would againpoint out that the s%' ` g g rSi?,.,' 3 4„4k 'r : It "12.' As`Judge Posner stated in Kucharek v.Hana- perceived criminal gravity, and apparently in-: '' s li way, 902 F.2d 513, 520 (7th Cir.1990): Wisconsin obscenity is of not much more ,��p , E.,'' f r {, a; -, .-"No doubt it rather depreciates Wisconsin's •than zero degree. But Wisconsin can make-,r'- ` °;t'3 �} F. .•.fie V. 3 ,„ 1 }, commitment to extirpating obscenity to create its own judgment about the seriousness of *. r : ,f;;° - an exemption of this sort; for imagine the obscenityas a social problem responsive to -' tF 11�*�' £;� Vt 1;, hue and cry if Wisconsin exempted officials criminal punishment without encountering .4d'\ ,.,. ; J=, and employees of schools and public libraries .problems under the equal protection clause, ,4;;^, i?P,1 t�1,,. rape. criminal liability for prostitution or and it ill becomes pornographers to complain .mf, �„ tt ., ,. p . But this is,a state that got along for . about the leniency, of an obscenity statute ' • s f" + eight years with no obscenity statute at all: },,,, - r r ,x - a' the American Denmark. There are degrees of 13. Majority Opinion at 1086. ▪ t - i • .RII' 4X '; MILLER v. CIVIL-'CITY OF SOUTH BEND 1119 ' n the majority's view of.con, :°' Cite as 904 F 2d 1081 (7th Or. 1990) y is applied to Frisb 3 �F- `Jplaintiffs have clearly stated that.they have -447 U.S. 455, 478, 100 S.Ct. 2286, 2299; y'•`�? ,i • U.S. 474, 108 S.Ct. 2495 10 4',.,h0'' ' ' ;' ' no: intention of conveying Or expressing 65 L.Ed.2d 263 (1980)] (REHNQUIST,;.J. ,, - any political.or ideological message. •;,- dissenting), is `created by the medium of- 988), a case where the Court,, ,�:,,•:` ;,P..x;.,;,`Y - expression itself.' See Taxpayers for w ` j- _-It remains necessary to determine wheth- ;overnment sinterest in eted. ,, :t F s,. e=:Indiana's application of its public nudity Vincent, 466 U.S. at 810,-•104 S.Ct. at r justified a ban of targeted v r statute to the plaintiffs' conduct is "nar_ 2131. Accordingly, the Brookfield ordi. keting, the government's=i1%, f'," ' S ' ''- nance's complete ban of that particular again be considered directly :',r ,v rowly tailored to serve a significant-goy- p ,,, ernmental interest." Community for medium of expression is narrowlytai suppression of speech-be w•, v,'. Creative Non-Violence, 468 U.S. at 293, bored." . .. ... :eters expressive activity'in ' ' i , i,,i„,, ,. , 104 S:Ct. at 3069. In Frisby V. Schultz, Frisby, 487 U.S. at 487-88, 108 S.Ct.,at i neighborhood expresses'. ;, ; - ; .,487 U.S. 474, 485-86, 108 S.Ct. 2495,.2502- 2504. Similarly, in our. case the relevant ding their opposition to this ,, a rlit • 04Y '03, 101 L.Ed.2d. 420 (1988), the Supreme substantive evil, the damage to public mo- `interest. The Supreme 4 `, r a " ` Court' made clear that 'this constitutional rality resulting from the violation .of. tion of the restrictions'in ' t� ::' requirement does not turn upon whether a Indiana's well drafted statute barring pub-, derscores the fallacious na- _ statute "bans" or merely'"regulates" par- lie nudity, is not"merely a possible byprod- jority's interpretation of the t. ` 't a" ticular expressive activity: :. . uct" of the plaintiff's nude dancing, but is itent neutrality. i•'=';`•,:_ ^: �,` . „: statute is narrowly tailored if it tar "created by the medium of expression x ublic nudity statute ,.also • 'w i" '• °igets and eliminates no more than•:the [nude dancing] itself." See Taxpayers for . . :-'. , "' .,r,;=. :. Vincent, 466 U.S. at 810, 104 S.Ct..at 2131., ample alternative channels-��_,•. ��; ``;exact source of the'evil'it seeks to reme- Thus, in applying its nuditystatute. :ion." Ward, 109 S.Ct..,at' a :'" • 4.w,; .dy: City Council of Los Angeles v."Tax- public a -- n toproscribe the plaintiffs' public nudi the intiffs must only remain.a��'�>_�,� �, �°�` ,- payers for Vincent, 466 U.S. 789;�808- . ..t3'.:: .,� • "'810, 104 S.Ct. 2118, 2130-2132, 'r,80 State has "target[ed] and eliminate[d]:no crest minimum of clothing , :: s e :_ `L Ed.2d 772 (1984).': A complete ban can more than the exact source of the 'evil.'_it lances, a requirement ;than tho • - �imunication of..the" '`.•` 'k 1f:::itt e'narrowly tailored, but•Only-if.._each [sought] to remedy," Frisby, 487; .U.S._..at ; -`"" activity within the proscription's scope-is 485,-108 S.Ct. at 2502, and has thus:regu: rotic.- 'and sensuali .�w-«�,.���.� .�;� ; , ty believes are found,in:the.;';=f, ''';' K `.:,an:-appropriately targeted evil. For ex- lated in a manner "narrowly ;tailoredwto. ain le,•in Taxpayers Vincent.we u serve a significant governmental interest�'L uct. Complete nudity is not;< ``°•' .,a r' - PforP o the plaintiffs' supposed � �}. .. held an ordinance that banned all signs Community for Creative`Non-Violencel .oticism and sensuality,"".be'., :-k,, ,• t=P='.'icon public property because the interest 468.U.S. at 298, 104 S.Ct. at 3069. ;,.�s; 0 •t,K s supporting the;regulation, an esthetic.in. The application of the Indiana public nu,_;. . re Myriad ways in which.. <, �-- �� -�= ' y Y _ � ,._ terest in.-.avoidingvisual clutter,.; and di statute to theplaintiffs' nude dancin ' l communicate their erotic' -'= . g - •:_i'''' blt hi-rendered each sign an evil._Com- activities, as well as to numerous other. eme while clad in 'the mini ' Wiz..• g , ' - ., g . } : . .. ._,.-,. iel i t =g�plete prohibition was necessary because nude activities, is nothing more than a pert State of Indiana �requires'� _,.,�• „,,, l,a,.., - -'- � - �-' - ic nudity statute. Indee , 5 z <.,, :.....,:the substantive evil—visual bh ht. missible regulation of the..manner. of an r: ;• .,.,[was]not merely a possible.by-product of expression-that is .arguably.-contained''in s ing proper coverings .have: ' >"'= the.activi but was , created b the the alleged message;ofti�, ' a c� t'' [ ] „ ,.... ;Y r- this conduct. Expression,is,hardly.impel- ry t medium of expression itself. Id. at.810, ed where the plaintiffs have stated emphat-- • 3ensuality,"that the'ma orb ; ''- " - • • . '« ' �.. s;£,'j�;104 S.Ct..at.2131. ,sue.;,,:- ically that.they were not conveying a ,larg- in the plaintiffs..conduct.: u 4u.,. t.rc;;Whether Indiana's public nudity statute_.is er political or ideological statement";anc lternative channels" remain '..• `".viewed as an."attempt to ban nude danc- were merely attempting to entice custom-, . ' • tication of any message.ther .'„., ; �` '"� ablywish, to, conve , of , y�, -` # g;°:,Majority .Opinion at 1088, or a mere ers to purchase drinks. ., [N]ude dancing is Y attempt to regulate the nudity found in this not a fundamental right entitled.to,height-. I again point.out that the 4, 71 "`. alleged particular expressive activity, the ened scrutiny...."_ Wal-Juice Bar, 899 ' controllin question remains whether"each F.2d `at 1507.._ .Under no, stretch ,of,the. ''' ninal gravity,and appareiitfy°in' ; • t ., g scenity is of not.much more; _.' , •' •!•r . activity within the proscriptions scope.;is •imagination can the United Constitn; . ree. But Wisconsin can make k an appropriately targeted evil." Frisby, tion be considered to require an,exemption nent about the seriousness ofrr ,.,- A i social problem responsive to ;;.';.'F 487 U.S. at 485, 108 S.Ct. at 2502.,-.In to be carved from this statute-to permit ishment without encountering ::`;' . •1'':`;:`i Frisby the Supreme Court concluded that dancers in bars to flout the same pro• '' . er the equal protection clause. - r? '; "the `evil' of targeted residential'picket- tions on public nudity that bind all others mes pornographers to complain Syr . ':.` , „ r,R ;: ing, the very presence of an unwelcome within the State of Indiana. I dissent and iency of an obscenity statute.i. ,;$,, j:. 'N • visitor at the home,'_,Carey- [v. Brown,, join Judge Manion's dissent as well as Sec,_ lion �_ '16. ;<.•,i'Lr t !" f. .. .. ,- ., 14. See generally Posner concurrence at .1101. { 1' . i -- } ,[ '.'l �.`, , ?.' , I d • .'''''" dr.)f'':s ?. _ ` , �� 1120 904 FEDERAL'REPORTER, 2d SERIES --'•';',;'-.? . ' ti j'1,0}F t I; .. .. . : , f'�J ) ill � tions I and III of Judge Easterbrook's dis- message: about homelessness. None- ��, "•` l l ' • • ;.; sent. theless,. the Court held, the Park Service :ix,Nz { � • k` i I 1 • _ may apply its regulation forbidding camp.•' ., , `?' , i EASTERBROOK, Circuit Judge, with ing. Regulation of conduct is acceptable if ' I. ! ;' whom MANION and KANNE, Circuit it furthers an important interest• that is ''. � 6 ' ill ;;' Judges, join, and with whom COFFEY, "unrelated to. the suppression of free ex- .'•"'-`.-:."., ''' Circuit Judge, joins with respect to Parts pression". United.States v. O'Brien, 391 . _-`, . i' i•f I and III, dissenting. U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 • • 'f' II Our court brands as unconstitutional a L.Ed.2d 672 (1968). See also, e.g., FTC v. 4.,$•,> ' x'ei I 1 I • • state law forbidding anyone to "[a]ppear[] Superior Court Trial Lawyers Ass'n, — ';'! •' 16 eh';: f 4 f in a state of nudity" in a "public place". U.S. —, 110• S.Ct. 768, 778-79, 107, t `a,l!' Ind.Code § 35-46-4-1(a)(3). The Supreme L.Ed.2d 851(1990); United States v.Alber- ;s ' ' 1,0i 1� : tini, i 7 ,. Court has sustained the application ofthis472 U.S. 675, 105 S.Ct. 2897, 86 .,.,,,,:..,,:-• ' •. '' ' statute to bars. State v. Baysinger, 272 L.Ed.2d 536 (1985). Burning a draft.card . ` _ in O'Brien, sleeping in ,' f; Ind. 236; 397 N.E.2d 580 (1979); appeal P g CCNV, entering a ;.;4 •. 4,tU i r dismissed for want of a substantial federal military reservation in Albertini, boycott- _ •.4. ,.` '1,w 2. j ;, ' tzestion, 446 U.S. 931,•100 S.Ct. 2146, 64 mg criminal defense work in Superior • q,,t "+r'" I L.Ed.2d 783 (1980): The last time the case Court Trial Lawyers, all were done .to !' A !•tI was here, we observed that Baysinger did send a political message; although olitics• . t ' g P r, �+d' !1 not• present a contention that barroom are the heart of the-First Amendment,-all Ar r,t J' f i' ,,' dancing'is protected "expression", and we of these messages were held subject to" , 4 p'}4 i•41 remanded so that the district judge could viewpoint-neutral regulation of the cony: %?,' ,, t; .,. 413 determine whether the dancers express duct. Cf. University of Pennsylvania v ^� a I r; j something. 802 F.2d 287 (7th:Cir:1986). EEOC,—U.S.—,.110 S.Ct. 577,,587,88, ri '. .0 F i. _ He found that they ,do not. 695 F.Supp. • 107 ,L.Ed.2d 571 (1990) (EEOC may have: =:r;;=;, ; `' •";,; . __ ! ',;; jn I 414'(N.D.Ind.1988): Today`the court holds access ••to university's tenure.files.under_ : sr� y, zi n : that expression is unnecessary;` that`all rules of general application notwithstand a ,'p,,._ i4 h dance'as entertainment is protected unless ing'possible burden on speech). -,:„,r4 - `` ' L obscener - - •• '-`'-, Indiana's reasons prohibiting public_ s • t • Ir nudity are""unrelated to the suppression of '`.'r ;`1?,,. < �i • •-'� free.expression . Its interest in attire is at,;;'y�• t i, . +" + Ik: ;Indiana: does not regulate dancing'..',1„It ' Ieast as great as the Park Service's interest., .;•v; hp' regulates public nudity.- The difference is': in' regulating' catnaps, the subject` ofa x' � . � t dispositive'for'constitutional purposeseven CCNV Indiana, need not prove that its s;t�,a,,-• t`•, z�,•_ `' ,-1) -- if one 'accepts the-majority's conclusion --interest in clothing-is-vital`to welfare'or,, -";_.•.• . .",,,•.:=. ' Y S I �{ that dancing is speech (the subject of Part disprove the plaintiffs' assertion that'an• _ :_`' y}_er,'`•.:'t . .� ► i,I r II below). `'Nudity is conduct. Laws regu- exemption for barroom dancing would be ; 4.: • t. t, ! lating,conduct 'may apply to expression harmless: "The First Amendment does not ^f '_ ;s,`,rj ki;,•�,l�rs ��, without violating the First Amendment bar application of a neutral regulation that � �,, �� �. ,,' [1)1 -. Almost the entire domain of Indiana's stat- incidentally burdens speech merely because: ;, ,I f ti f t • ' ute•is unrelated to expression, unless iwe a party contends that allowing an exception, w0. , !A R l'.. p ` C] view nude beaches `and topless hot' dog in the particular case will not threaten'iin=• -y"- `,, *'3`' . ,1. vendors as speech. Unclothed dancing is a portant governmental interests. Alberti`- �� t ,1,;.. K l,' tiny fraction'of the ambit of the rule, and ni;'472 U.S. at 688,'105 S.Ct: at 2906• . The Tc`' rr (_ �_ ' = what plaintiffs need is ail exemption from a state's burden is especially light becau>a . - ;,it 1 i well justified norm. '� the plaintiffs do not seek to transmit any=..•: s: - r� message. - . .- to ,. , : : . ..Conduct,that plays a role in expression is • •;. {; not exempt from neutral regulation. Per- ..If Indiana forbade nudity only when em- ,a , k r ,. 111 r>;{ sons sought to sleep in the park, see Clark ployed in dance, then it would have a tough ,, t,.• ,� •1'1'4-;i 1-Pii� v. Communityor •Creative Non-Vio- row to hoe. A dance-Onlylaw would be a `'• �-,<.. •N ; lence, 468 U.S. 288, 104 S.Ct. 3065, 82 regulation of expression if, as my 'col-...,•;,:-.;:- a }L , �t' ITA L.Ed.2d 221 (1984) (CCNV), to convey a leagues believe, dance is speech.. Regula ' . ' �i � e, k,.ti {�•tG.� 'Fi",�. i ? h 7F",,,e-�+.7.''r np e.-^rrr,77,,^:73, ',":3,,,,,, ,- -,.-.."'.7.„7'17++ra '' -z•,. ','' _ ...?z.'.•^- .,,.,.,� y - .r' r 't ,IEB -,.. 3 ` 1.1. 1 MILLER v. CIVIL CITY OF SOUTH.BEND 1121 Cite as 904 F2d 1081 (7th Cir. 1990) t homelessness. :.None Y •r,a.'• ' ,x�.•lion of expression faces high hurdles.'.The ing"). Government does not forfeit its en-, trt held, the Park Service';; `. i '; ,i'. concurring opinion has things backwards in titlement to enforce laws. regulating con- ' " suggesting, concurring op. 1102, that a lo- duct by attempting to facilitate the expres- of forbidding'camp=�'_Yr=::`�_.: ;=,;�',`� `,: of conduct is acceptable if _ it l - cal law drawing.a bead on nude dancing is sion of ideas. ,. • important ,interest that .is.,, ;r , easier to sustain than a state-wide ban on Cases often say that regulation of con- `''-` public nudity. If Indiana had targeted g le suppression of free ex="` = -' ', duct will be sustained when the overn- ed.States v. O'Brien, 391 ,. ,:;. -,•f• dancing, as.the majority supposes, majority mental interest is sufficiently "important". 88 S.Ct. 1673 1679 :'20 •"i',r oP. 1088 n. 7, I would be more sympathetic , ,.-. - •, Members of the majority say that Indiana's to its conclusion—although even then the i8). See also, e.g., FTC:v,_'• �"'s ,•, interest in clothing is tissue-thin. No case Trial Lawyers Ass'n, 5 . • , ., ._ state might have the power. :States may in the Supreme Court turns on a conclusion S.Ct.. 768, 778-79, 107-.;• -f, ` prevent corporations from'supporting can- , that the governments interest is Made- I); United States v.Alber;..,`'00'; ., didates for public office, Austin V. Michi can- that ate. Whether judges should 'conduct 675, 105 S.Ct. 2897' 86 -M =r .Y ' ''-�:, 9¢n Chamber of Commerce, —U.S.=, qsuch an inquiry at all when a neutral stat .„* ' 1:10 .S.Ct.-1391,. 108 L.Ed.2d 652 (1990). „ '5). Burning a draft card:_y ;'. -r. - - ute affects expression rather than pin in CCNV, enterin` a '''-1a ,, :... Can it be that nude dancing at the corpora- " „ . tion's tavern has greater constitutional pro speech is a question yet to be resolved. ;ion in Albertini, boycott;-:' '',r .faction than the firm's political speech? Judge Scalia's opinion in CCNV, which,the fense work in Superior.^x rt Court cited•approvingly in Texas v.:John ,wyers, all were done,tor; ::`• -, >: ;-'`But Indiana didn't try. to clamp down on son, — U.S. —, 109 S.Ct. 2533, 2540, nessage; although politics 'r _dancing because of what- it expresses. 105 L.Ed.2d 342 (1989), answers this ques- the-First Amendment all • ' > Erotic dance occurs at plaintiffs''establish- „ . .,3 tion no , and his assessment is_.per- ;es were held•subjectao`.-` '1";r` ' ments`' daily, without ' hindrance from suasive. ~.;:,:;Indiana. The state bans public nudity and regulation of the .con-'t: r I start from the premise that when the ." no. more. Streakers, flashers, mooners, „ rsity of Pennsylv¢nia v. , Constitution said , "speech" it meant t''' " " s''n hs who want all-over tans,and models P —,.110 S.Ct.577,,587-$8;: , • -,,`''• ^; > -n3'i11Pspeech and not all forms of ex ression. (19,` ` �EEOC may have ;"` ,w 7`'wearing see-through blouses 'at trade P p sityy,- ,;nure-.files-.:under,a, F'° t:•shows to attract attention to machine tools ` Otherwise, it would.have been unneces- a application notwithstand-x��-'�`'••,•; - ':' '-'are'subject to the same rules. The law has - sary.to address "freedom of the press" PP '' ``X.- :•separately.-or,- for that matter,,"free- Len on.speech). . :' °;;mod, 1,., -,- :-nothing to do' With the expression or view- dom of.assembly," was obviously : ms for'prohibiting pr ion of,�'•-'s_; '' ; -.supposition.that nude dancing is "speech", directed._at facilitating expression. :The ated to the' suppreire is'of•';. 'u» effect of the speech and ress.,gu--- - * -this is disp°sitive.. Under CCNV,Superior P p aran Its interest in attire 1s at Court.Trial:.Lawyers, and like cases F the tees is to provide special . protection ;he Park Service's iectk1str ,rr• , <yy,;,Mis,.state need ,not justify failure to -exclude - :against all laws that impinge upon spo- need , the se that oft • ' v nude dancing from its general law directed ken or written communication (which I need not prove that Its , :, " ZM .to public nudity .- vc', will, for.the sake of simplicity, refer to ig is vital to welfare;n' i�-1 � The concurring opinion.. maintains, op. generically as "speech") even if they do intiffs' assertion that an-';',-..- ; •" �n' ' so, for.purposes that have nothing to do �r(rt``;° 'J1103, that Indiana's law-is not neutral be- groom dancing woulebe.;,:.u'.. ,� :� .- -- with communication,such as the suppres- 'irst Amendment'does'not_;:: ", � , -';cause the'Supreme Court.of Indiana held in c _Ba sin er that the_statute does not a l� sion of noise or the elimination of litter. . a neutral regulation'tlia '`-,,#! y g PP ir - But to-,extend equivalent..protection n . = Y` to°speech. This approach *Mild'do away Q ns speech Merely because ,.,. ' ' a ainst laws that affect actions which P y ae `'-'-with'the entire line of-cases•following g hat allowing an exceiiiit ^s_;- " 3,�T'=' • • happen to be conducted-for,the_purpose 0 Brien. `A decision saying that a statute pP : :ase will not threateniin- • +� of ."making a point" is to stretch- the ,e_It ,, `does not apply to protected expression rec- nta1.interests. Alberta-..',. ,.f.„ 't , '. ognizes the supremacy of the Constitution Constitution not.only beyond.its meaning 8, 105'S.Ct. at 2906:' Thy': ; • -, but beyond reason, and a and the ca ' «;2 .r. .,,...,:. oiler'state law-,'to acknowledge a limit the y y. especially light becaa§e 3 ':: Constitution imposes'on legislation is not to 1 pacity of any legal system to accommo- -Ira:-f.r�. rot seek to'transmit an �':i t ' " tA,, ` abandon-the generality of the law. The 'date. ,,' 'rules concerning use of the parks at issue- The.cases-.find within the First Amend- ode nudityonl when em' ':. , "-' in CCNV had exceptions 'too;' the Park . ment some protection for T"expressive ten it would have a tough ', Service•.did its best to accommodate,expres- conduct" apart from spoken arid written Inca-only law would be a."+ "`;�. ,:;, . sion, allowing the erection of-symbolic'tent ,,thought;'The nature.and effect of-that gyres.•; if,' as my col ,, .� `cities, but drew the line at sleeping(which . protection,..however, is .quite different . anti, peach._- Regula t`''r• '' S'?=:'"triggered the'regulation forbidding"camp- from the guarantee of freedom of speech • ;P"1 1. e . C - r ii. I 904 FEDERAL REPORTER, 2d SERIES ,�;: 1122 s 11.1narrowly speaking. It involves a signifi- Although the Court has not considered #. s..ii }. . cantly different balancing of private Judge Scalia's proposal for speech cases,it •.,,.• > ml _ r :'r 6 .I i` - rights and public interests, and does not has adopted these views with respect.to'-}'°. `y ,`_ • ''-I , alwa s call for the detailed "First 'if Y another part of the First Amendment, the ' '''' y`''' .11 :: f. Amendment analysis" characteristic of Free Exercise Clause. 'Employment Divi- .�; .;''� ` CI ! • the speech cases.... Specifically, what '' ' ' 4 �,''` p sion v. Smith, — U.S. —, 110 S.Ct. ; ��r`�t�� U! 1' t , might be termed the more generalized rt,<:• 11. 1595, 108 L.Ed.2d 876 (1990), holds that "..' .� ,ig:C _ es i• 4;' ;: guarantee of freedom of expression courts may not."balance" the public inter-.' >;;': ° 4-' th i : makes the communicative nature of con- , lr �#? i '; est in the application of a statute neutral , 1 • �'' a€ { duct an inadequate basis for singling out d � , ' r ( with respect to belief against the private '':_` 47)T, :•• tb + that conduct for proscription. A law di- r . ` ` " f'`I'' rested at the communicative nature of Party s interest in engaging in the forbid ,r g7 l':-V ; ,',. conduct must, like a law directed at den activities. It wrote that the "govern- r s o� l ment's abilityto enforce generallya lica s t 4',a-Y,-'.§ +4T II` speech itself, be justified by the substan PP s s ru ' :#,: ble prohibitions of socially harmful con- - `.1('• ; ;'�yi,`fil' <: "tial showing of need that the First :! l is,, I= Amendment requires. But a law pro- duct, like its ability to carry out other.as '�,y• s. q I q pects ofpublic policy, `cannot depend on S� '. ,, + scribing conduct for a reason having P � �' 4' measuringthe effects of agovernmental �` _ z,IS nothing to do with its communicative :.,.a(u ,rii:�```` v m it !i:' character need only meet the ordinary action on a religious objector's spiritual , '(Ir.;,,.` tP. 411j<f 3 -minimal requirements of the equal pro- development.'" Id. at —, 110 S.Ct.`at �,, •- r •` °l' .j. 'tection clause. "In other words, the only 1603, quoting from Lyng v. Northwest-In- -, ",* r j r,,"` `i I "First Amendment analysis" applicable dian Cemetery Protective Ass'n, 485 U S w-r4 €.. ji • ���,`l� i i to laws that do not directly or indirectly 439, 451, 108 S.Ct. 1319, 1326, 99 L.Ed 2d �'�;, �F • . s ' 4 I, impede speech is the threshold inquiry of 534 (1988). Because the statute at hand• : = l I i ? .'-+s 9 whether the purpose of the law is to forbade use of peyote without regard to ,�, '+, ,;n ' I -suppress communication. If not, that is smoker's motive, the Court held that there '';'`. F :`t .. the end of the matter so far as First was no need even to consider how impor- ';'• ;,"cer '"1 1 41 11' Amendment guarantees are concerned; tant the practice was to religion. Neutrals _,,: ; _,, ,1 ,.; ,.•, } ° if so, the court then proceeds to-deter- ty may not be a necessary,condition,of ,';�} ''I �'... " - mine whether there is a substantial justi- constitutionality, but'it is a sufficient one. ,I .4- ; "''� ?' -"(cation 'for the ust`-as it ;a .a•".. .. ' °`" i!I .! Proscription,. just .So here. If we ask.whether "the pur-„ Tt .., � 1 "does in free-speech'ca es. ,=34• �;i,. 3 I pose of [Indiana's anti-nudity] law is to, „ 4 : •?> s, • . r 3 ,I ' Thus, the First Amendments protec- t ..:';.-. , }} • .„4 e, • . tion of frees speech invalidates laws that suppress communication", we must answer :i , . •''g,, -,i p no. Ind.Code § 35-45-4-1(a)(3) has noth �r,'.- . .*,} 41 happen to inhibit speech even though hi! ing to do with speech, with expression, or• ;� :•b,,t} ' - • r they are directed at some other activity- P ,;, ''1` (sound amplification, campaign contribu- with dancing—ballet, ballroom, or barroom ,, ; ,f;"''i§ i varieties. It is indifferent to whether there`; t tions, littering). The more limited guar �,N ,, t(i :,; antee of freedom of expression, bycon is a message, or to the viewpoint expressed =-- a wi 'i tract, does not apply to accidentalntru- by any message. It prohibits public_nude y_ "� '' ,{ ,, Sion upon expressiveness but only to pur- ty, leaving speakers ample methods to con +,,: ' :• _;` e i - poseful restraint of expression. it would v.ey thoughts of all kinds. Laws prevent x R • not invalidate a law generally prohibiting mg prostitution (sex for money) apply even :r1,._}'v;prY ,, +,, +°-: the extension of limbs from the windows if.someone wants to film the act and use it -„ .,. ,'. ,,! .. of moving vehicles; it would invalidate a in, protected expression, as laws against x : • i3 i ' ,I,.! law_prohibiting only the extension of bank robbery and murder mean that pro• - r 'r :< ' +,r , clenched fists. .. - ducers of Bonnie and Clyde had to-fake X, Frid`A''';; 4,� i s Community for Creative Non-Violence v. robberies and deaths rather than shoot real.:n ; , t ;I' 94 - .�yN 14<}•4;, Watt, 703 F.2d 586, 622-23 (D.C.Cir.1983) ones. See American Booksellers Assn v• k;_ f ,.° (en bane) (Scalia, J., dissenting) (emphasis Hudnut, 771 F.2d 323, 330, 332 (7th Cir. -# :`H _"' 'SI �:. in original, footnotes omitted), reversed, 1985), affirmed, 475 U.S. 1001, -106 S.Q . ,r�„*,• rF . j�,•a 468 U.S.288, 104 S.Ct. 3065, 82 L.Ed.2d 221 1172, 89 L.Ed.2d 291 (1986). In the same r„ (j } `'i1 1 1 (1984). - . .. fashion, laws against public nudity apply •. s >r,;r- { , .;„--.41C,:',.1'; til:' ,,,,--•t;, " -4‘t 4 .,,,,,,.,,,.,,,,,v.„,„,,,,, At11' - � r tr '1i ` l. - , �} ' "x 07: tu'a t;c r'r t' ?- . ,. ', -.` l'1- 0$ .- - -- Y _ -, , •',g. ,- 4; c , • ' 4 , , F t � Yft � gW : a !ES g•, ; -<; MILLER v. CIVIL CITY OF SOUTH BEND 1123 '` '*-.` , ` `'` Cite as 904 F.2d 1081 (7th Cir. 1990) Court has not Considered y-;` even if someone wishes to use nudity as an •dances. Ms. Jacobs believes she enter- I roposal for speech cases:rt}_ h` 3 `'"-p �..m ut into an expressive performance.' •��. tains the patrons in the establishment: ' : 7- �`* ' the come in to see her, they applaud; !se views with respect.to _u"M :'=;'The concurring opinion observes, op. y -:''44'' t#°:;';--. they buy her-drinks in appreciation of - the First Amendment, the: ;F:, ` ;.1103,.that Indiana did not rely on 0 Brien, her performance. Her pay depends upon cause. `Employment Divi= - •"CCNV, Albertini, and similar cases. the number of drinks purchased, and she — U.S. —;' 110 S.Ct '„ r Usuallythat means waiver. The state los- :, � :�,. - must sell a certain number of drinks to 2d 876 (1990), holds-that:;;; . -- ,, 1r'.es'its battle with Darlene Miller but retains be paid. "balance" the public inter-'_,- qk," •; ' _� -'the right to make its best arguments , ,� )• ::,iaL Although 'characterization. in First ration of a statute _neutral ,: � - � a ' against other hoofers tomorrow. Yet nei- g belief against the' private v: Wit, a `thee' 'the majority nor the concurrence Amendment cases is open to reexamination gP 4 reject on appeal, Bose Corp. v. Consumers Un- in engaging in the forbid- .; - ` • ,-''grants the state this quarter. Both re ect pp a wrote that the "govern-" ..c• i #i on the merits any possibility that Ind.Code ion, 466 U.S.485, 499, 104 S.Ct. 1949, 1958, n ;.7 " . = ,-.,;.',&,_.: 80 L.Ed.2d 502 (1984); Rosenbloom v. Me- enforce generally applica-r,: ...- 35-45-4-1(a)(3) is a neutral regulation of of sociallyharmful con= `,: ` ,, conduct. If we are to decide the O'Brien tromedia, Inc., 403 U.S. 29, 54, 91 S.Ct ; . ' 1811, 1825, 29 L.Ed.2d 296 (1971) (plurality lity to carry out other as-.rfa -Y -.., .question rather than deem it waived, We opinion); American Jewish Congress v: policy, 'cannot depend‘on'w��z •,+; :. should recognize that this line of cases• Chicago,. 827 F.2d 120, 129-30 (7th Cir. effects of a governmental :;_ = . ;vindicates Indiana's statute.' 1987) (dissenting opinion), findings 'of his- igious objector's 'spiritual-: ` ; '.• .;-' torical fact must be respected. Especially Id at —, 110 S.Ct.`,,,,; - ;_ , s"�'r::, II. when the parties.agree that they are cor- )m Lyng v. Northwest'In=">; k,�,. :`� 'a,. The majority writes for the most part as rect. Millers lawyer conceded at oral ar- Protective Assn, 485.U:$.` •M; ' 1` - �,.+ • «�.jf Indiana had a law that zeroed in on.the gument that she was not trying to express Jt. 1319, 1326, 99 L.Ed.2d a` ;' . ' "'i � ' ause the statute: at hand54' . - � `salacious aspects ,of nude dancing. . Even anything. Counsel stated: -such,a statute,;however,.would.be within -[T]here is not a larger political or ide. peyo, ''thout rega•rd..16 r``�t{ r.is constitutional_ powers,for dancing is not ological statement being made. I do'not ti. the '._ . held that the a fl "s eech contend for a second that that is true.::'; �n to consider how impoa- `f,,p. . . '. .,.~ _ o not contend that there is some idea ;Neutrah r „„ ,,� �.;.,.. ., being expressed. We have said that'in- :j was to religion. I - , .: 'i`::..' - A :.:rr:�: a necessary condition,,of �.'^,, " -`° • ' keeping with the language of the United •' • :,><,,,,The.court concludes that "non=obscene States Supreme Court in Schad, that eny ;j but it is a sufficient ones e.� 'Well ;nude 'dancing performed,as entertainment -' tertainment as well as olitical and`ide-.. i 3b � _ p I Te ask whether the pnr fir;, . ,s:expression"and •as 'such is 'entitled:to `.,, „l. P ological speech enjoys First Amendment �t 1's anti-nudity] law is,',to` r ,' 4 , t, , , • .limited protection under .the first amend- protection. That's all Fi have eeer `said. nication", we must'answer?`'� *'merit" ma'ori o . 1085. 'This dis enses - .t>- M ] ' ..P P The court does not re-characterize the facts• • 355-4-1(a)(3) has noth f ' • .'with expression as an ingredient of speech; peech, P ,: .kt y, so--much--as--say they are innnateriaL i —. with ex ression, or• • -4;for the.district `ud a found that there is no g cause dance is inherently- expressive" diet, ballroom,'or barroom r i .expression in'these dances."-With respect. (mai op. 1085). To the extent this means.,. `� different to whether there ;:M .;;� . ;;-:;;Z:. o laintiff Miller,who dances at JR's Kitty ry .w� ,• P that professional choreography and staging ` to the viewpoint expressed ..l•'4. • " Kat`Lounge, the judge concluded:. , h are not essential; I agree. To the-exteri�' Itprohibitspublic nudi ' - ' •'',-•`" ' ._ t • Y-,,,When she dances,`'Ms. Miller perceives we ask what something is' "inherently'-'; ers ample'methods to con ;r° herself as "just entertaining; just`danc- rather than whether real people are- trying • all kinds. ' Laws preventf ..;, %-�,.ulg The avowed purpose of her`dance to communicate, I part company-with the sex for money) apply even is to'try to'get customers to like her so court because it effectively holds that all Suit N, ., ;. -„ to film the act and use{t; �w" ; that 'they will buy more--drinks 'later. purposive conduct is speech. "Although it (ression, as laws against{µ-, r r Judge Sharp also adopted Judge Millers is common to .place the burden'upon_the:< ; , , , d murder.mean that pro- findings'concerning. a similar"'act In the Government to justify impingements on`= e and..Clyde had to fake4 4 ;_..neighboring;Ace-Hi Lounge: First Amendment interests, it is•.the--obll_ 4:, Lths rather than-shoot real = . Ms. Jacobs dances for fifteen to twenty gation of the-person desiring to engage m ican Booksellers Ass.'nrv:` '- ., minutes as a juke box plays four songs. assertedly expressive conduct to demon- k `- ;`=She buys outfits to wear 'when she strate that the First Amendment even-ap- d 323, 330, 332,(7th gr f j :`�' 475 TT-c,, 1001, -106 S Ct. fj 7'. 4: ''dances, butler act consists of removing plies. To hold otherwise would be to create . 291 I' i). .In the,same�1t. . �i "l 'the outfits.` Her act features no-'choreog- a rule that all conduct is presumptively ainst't,..,,,lic nudity apply, -,41 ; '"'raphy; she''simply'takes the stage and expressive.... [W]e• decline, to :deviate ;.f k ^,5 a .r 1 „ • ' .. • • ' ': I I:. ?, -•,.:.;r4:;• . +- %It:r.1 .!i. I t,,,:ti ,:li!,. • ,::::.4 . ,.,.1-1 1124 904 FEDERAL REPORTER, 2d SERIES ..--, •• =,,--,=.• - : ,".-:,. 11-51,' i 1 I i',',,:-.,.',„;_. ',.... •••",4 ..:I'iti6i 'I'!'t from the general rule. that one seeking branch. Part I showed that Indiana's rule7,'''- -, .. .,t....., .-,,•,- •,; ,, 't2:,•'-n :'a- relief bears the burden of demonstrating does not depend on viewpoint. Much closer.t,t .•,,,, , a 1?- „r-,.,:ri ! ' t I' 'r 'g:'il,'r • that he is entitled to it." CCNV, 468 U.S. is the question whether the plaintiffs' at 293 n. 5, .104 S.Ct. at 3069 n. .5. •. .:-' dances express something, to which I turn. '', .,.. -•• V .' -.1 i! ; ,- . ./ •. . -. B. . , . ' . The First Amendment protects "the free- ' • C • .1-...-1.,,,-,;,! • .p.11'i,t..,,'”:.:','„?.;7:',',.i.-1.,;;',,:-•:,.,.. • , •-. :;,-4- '... ,t.....,--..7`,%,. '..1 111 .•. dom of speech". Go-go dancing is not Communication is a subset of the un 1 ' • -- ..:-..,,, , ,,,•,.k-,Iva...,,z ,4,, 1 II? •, "speech". James Madison,would have guf- verse of human behavior. "The protection ' erai.:01, .;'• - - ,P;.------,,,r•,..t,g. ..-:. fawed had anyone suggested public nudity given speech and press was fashioned to as an example of "freedom of speech"—or assure unfettered interchange of ideas for k•.; , . , i. 1 •of anything that could be derived from the the bringing about of political and social '.:•;..A''::,: .`.--,4•.,,,.1 ; .1,;:, t I. l• Framers' conception by a series of plau- changes desired by the people." Roth, 354 • ff..,. . i 1•,., .sible interpretations„ Parading in a state U.S. at 484, 77 S.Ct. at 1308. "Speech" , r,t,-11, , of undress is.conduct, not speech. Even cannot be synonymous with purposive con- 7.4','";:,w..- ` .,.'-:....-i. I li Justices Black and Douglas, who thought duct, the First Amendment means that i Justices 4.• the First Amendment absolute, rendering "Congress shall make no law ... abridging all efforts to curtail obscene speech uncon- the freedom of .conduct"—or, for short,''',..;$'??.*Fv.7.1.•'-:,...-7 ,.+,'1h ill stitutional, drew the line here. Dissenting ..,..-,;'," '-. ;;"•F• '.';k..: , "Congress shall make no law". ., .t.,:,y...'4'.:f;• .." ,,lilt: - .11,'`,.!:•'''4.'111 ' in Roth v. United States, 354 U.S.476, 512, ..!.......„ ,:kf,',. •: gintrooki:,alins:IA`IPE:',. ''... :1`'''''-1•1 cuMssyingcowlleoarkgus colleagues taart,epaietuwrroesn • '-pa 1 77 S.Ct. 1304,1323, 1 L.Ed.2d 1498 (1957), .1.1 i Justice Douglas (joined by Justice Black) . . _ „..,.., '' i''-', '•",'''''';' .'=.1-C. rernarked: "I assume there is nothing in other forms of communication.- These are 1. the Constitutionwhich forbids Congress not "conduct". Although the Frniner-#.:41:,„...1, :._-„e_y.,•7!::, /- . .x..,-.„ r,•,;,.. from using its power to topiOscribe con drafted drafted a rule to governpolitical speech, , ..._ flit-ct on the grounds of good morals No see Leonard•W. Levy, Emergence ..Ofic.: one would suggest that the First Amend- Free Press (1985); Alexander Meikeljohn;"1,r,W1 1 -;.,..•? . V ',0,'.' '• went permits_nudityin PUblie,Plices,Aul- Free Speech and its Relation to Self *' •- 1- -, c , . tery,. and.other.phases of s.einal Miecon- Government (1948), for a•long time (and.;, ,. duct" (Emphasis in, .original):Whatthese -1,4, LL - - absolutists gave ass, r edu ciio ildc,t6iir.. .for good reasons)judges have,equated•poji:.-.4„.„...,.,..„ litical and frivolous books, paintings, mu sic, and other works of the mind,that bav,9,..,;„.4„:(. dum,: the. court iodaY :hOiditile"1,First .., li ....• Amendment cOmmandi. :• . been committed to parchment (or canni,;.:t,..,4: ,*-1,,, ..,:-.L ? , k. ... . , or celluloid,:or vinyl, or.today pitted:a.lur,y,.v- '.!,•3..., "Speech" is,of.eourse ,one.form of con- . minum on plastic). _Rock music,Penthouse et.:,1,4-, • t4:1). 1.- ------ duct,the creation.and dissemination of.oral - -,-T ii.(-4 t0-.:0: -.` • • magazine, and "slasher" movies•.:, are ,..% i' -71111 '- -/ 1 and written symbols,:Other forms.of.con- speech; we'needn't ask whether they p:re.,,:i.t'",: duct also convey ideas. So there is no 1 ' -• ' - conduct plus..expression. „One need ne.,t, ' ik:'1- ''''.. 'i, • bright-line between .conduct and ,speech, divine the message,of a painting tO.sepi-.:_..i.9': 0.:1, '.',!".17:' and laws.regulating ,conduct,may,lippede •ti 1. communication What to do? rate the conduct from the speech; there l*':', "•,.:, '..., _The...,stan- i• 1 , , • .genuine speech from the censor, theidetintt:,,.. , •,,;.. no "conduct" in in it.. In order to .protect ...,A,.. - dard response-is that "conduct".is treated 1.Plit'k.,!'';'''' as "speech":when it conveys a message, V ,. and regulation of this conduct fails when tion of "obscenity" allows. little room 7for'''''''.'"ii.' :-"-4. • . .. . v;,• PH ni •,.., . . ' regulation. Conduct may be regulated al-,._.„ ,••,• .,, , i 14.,it ---•• though not obscene. Our problem involv.,--- „,.. •`..`;' t•-iiI31-5 ..1.'. •- ,f' F..et.,3'.'1!;-.., 01'1 conduct, and to know whether to treat con- 41:1 i,ii . 1 E its.g.;Johnson;application, dependsTin kerv..ppnesthmaotinmeessisnadgee.: " • pendent Community School District, 393 ' - - U.S. -,.503,'89 S.Ct. 733, 21.1..L.Ed.2d..731* duet as speech we must ask •Whether.4 ,,, +,1 ; (1969) -,These are separate inquiries first shares the communicative aspect that led `:--•,:: , . .s.„,, 4 1,1t r', . : ,. ttite..•:'i i l'-' the. conduct.must be designed to express to the protection of real speech. . . -.,-;. ,,,.: .-.• :, something, •and. second the law's effect "In deciding whether particular conduct :-,,,q:777' must turn on the viewpoint expressed. .Ap- possesses sufficient communicative ele-• ,..:..•,,.: . .,., .p,..; • • -,q,.i,,AY t vil - 1-• .-t.• plying a law.banning nudity to striptease ments to bring the First Amendment into _.......,. ..,-. • nr, dancing does not create problems on either play, we have asked whether'Din intent to ,::,,.:','"i :: A'• ';''''''-- '''''':'"*A4,•:14:-VR'-', -,t,' -': . ' ;41,NX.,';‘,'... •-, ,t'',' ''.• -..;-,'1 ,,,i..IL!_. '.21....6'' .'f'.`'..;;.),,,'J' 'i;;"1 ,. ;!:1;) -- -,c,,1-..' •. ‘ . :',',-;'• . t.14."1:!.. • .4-4'-'.. , --- MILLER v. CIVIL-CITY OF.SOUTH BEND 1125 ?art I Indiana's rule - ,. ' .4- Cite as 904 F.2d 1081 (7th Cir. 1990) art Id showedon vie thatt.Indiana's slo de convey- a.,particularized' message ,,was pression" in the first place. :The Constitu, epe %,present,.and [whether] the likelihood,was tion does not protect"the freedom of enter- iestion ,.whether the -plaintiffs'i:. '' great that the message would be under- tainment". "Speech"—by cress something, to which I turn. =, � ��; ,,{ , g P y implication ex= rr; stood by those who viewed it.'" Johnson, pression" of thoughts through conduct is 3 i's'• . 109 S.Ct..at 2539, quoting from Spence,v, the foundation for its application. .. ;,.: C • X , Washington.418 U.S. 405, 410-11.94 S.Ct. J ' " } ' Music is communicative or descriptive; �Nn 2727, 2730-31, 41 L.Ed.2d 842 (1974). .The and"as a form of expression and commu ication is a subset of the um. `a;: ` . district court found that the dancers are" �� `� � ' nication, is protected under the First iman behavior. "The protection . not-trying to express an idea; the dancers Amendment." Ward v. Rock Against Rae: ch and press was fashioned to r.,,i� , 4` - t. agree.' Our court does not say otherwise; ism, — U.S. —, 109 S.Ct. 2746, 2753;ettered interchange of ideas for °Y 41: .;¢ it holds'instead that a message is not nec- 105 L.Ed.2d 661 1989 ig about of political and social :y `-- essary to expression because "eroticism ( ) (emphasis.hoen's Pas- sired by the people." Roth, 354 ';:; ''� � Bach s Mass in B Minor, Beethoven's x, ,,,„ and sensuality"(maj. op. 1086)automatical- toral'(Sixth) Symphony, Wagner's Parsi 1, 77 S.Ct. at 1308. `,`Speech" ;L ', ,.ly qualify as speech. Can other emotions , *l. fal, Mahler's Resurrection (Second) Sym- ynonymous with purposive con- - , �" be'far behind? Despite the court's claim phony, the Beatles' Sergeant Pepper's le First Amendment means that ;i' , .( that its holding covers only "dance as en- Lonely Hearts Club Band, like,other vo- ;hall make no law ... abridging '1•i tertainment", the majority does not iden- n of conduct"—or, for short, .;'--,'i :y„,tify any kind of entertainment that con- •cal, religious, and program music, tell sto- shall make no law". nes—sometimes•sexually explicit ones, as , ,x •, . tains neither ideas nor emotions. Its ratio- in Orff's Carmina Burana, which, if it gues take a wrong turn in dis '', `.' Hale applies_ to entertainment en bloc. were not sung in Latin, could not be put on ks of art,pictures in books and 1;-:''',.,': ' ,-> ',3.Pervading this opinion is. a belief;that the airwaves. FCC v. Pacifica:Founda-` of communication. These are li', i at states may draw no•lines where art is coif- tion, 438 U.S. 726, 98 S.Ct: 3026, `57. ct . Although the Framers ', t- -,-s ce rned• Sophisticates go to the museum L.Ed.2d 1073 (1978). People may fairly Ile to govern political speech; ''S . and`see Renoir's Olympia or to the opera dispute'whether absolute music, such-as I R " Tvy, Emergence'• o r° and,see a soprano strip during the Dance LaMonte Young's Well-,Tuned Piano;coin:= 9 f a �.y , (19b Alexander Meikeljohn;" s' - of the Seven Veils in Strauss' Salome. .If municates thoughts, but surely it embodies `i and its Relation to 'Self.; , `flip First Amendment protects•these.ex= he, .,. E, . them (the right place for the major third,. (1948), for a long time (and. " -. ,. ii.gpressions, the.argument goes, Joe'Sixpack etc.); all that we call music is the product sons) judges have.equated:po-:k '- ' is entitled'tosee naked women. gyrate,...� ' r - L ,.. of rational human thought and appeals at ivolous.books, paintings, mu , y the pub.' Maj. op. 1086,quoting'from:Sdr least in part to the same faculties•in others: r works of the mind that have ,t , x� lem Inn, Inc. v.Frank, 501 F2d 18,21 n 3 It has the "capacity to appeal to the inte ted to parchment (or canvas, ' ,t,�, (2d Cir.1974). Why does this'follow? 'That " or vinyl, or today pitted,alu{ .`l14 a`dance in Salome expresses something lect Ward' 109 S.Ct. at 2753, is not con; duct", and is closer to speech (even ,an Lstic). Rock music Penthouse, :does not imply that.a dance in JR's Kitty: emotional harangue, is, 's eech than'to, did "slasher" movies rx<' Kat;`Lounge expresses. something xan P• ) • .Y smashing a:Ming vase-orldeking a cat,two T— ieedn't ask whether the are more than the fact that Tolstoy's Anna other ways,to express emotion: . expression. .. One need not ;Karenina was a stinging attack •on`'the � issage of a painting to sepa ',t,' x Like mimes, ballets tell stories, often- w Russian social order implies that theJt) act from the speech; there is . - =!_ scratching of an illiterate is likely to under- erotic stories, and clothing (or lack of it). in it. In order to protect ), 'x mine the Tsar. Rembrandt applied paint to the seas the tale ge in . .No one can miss h from the censor, the defini-t' -- - :'''-i canvas, a bucket of paint hurled at a:'tan- the sensual message in:Sthefaky's Le Sa enity" allows little room,for... ' '4.,-, vas also deposits •paint.` A conclusion:that cre ikoduvsk intemps or the fairy tale,.in onduct may be regulated'al' r z' f"I'';:Rembrandt's paintings are speech would Tchaapproaches s Nutcracker Ballet raiely, scene. Our problem involves ,' :.•- °,' riot imply that all paint is expressive., Ju- approaches absolute' music in abstraction_ • i` -vemle delinquents who deface subwa cars Even B. ,.,vine's.choreography:to._S 3 • o know whether to treat con $ •, q Y j 1;'0_,,:i with spray paint may be "expressing•them= vmsky'sAg n, a model of spare movement, !h 'we .must ask whether it mmunicative aspect that''led .• selves" in.a colloquial sense, but they.-are does not suppress the,contest to which the P I-Kt': ' - title refers. -People ob objected to-Ni•ms L ion of real speech. ' ' • not communicating'ideas.beyond their disJ ] k3' ,.`• is;,,,, dain for the sensibilities of others. The and Isadora Duncan because.of the mes. whether particular conduct .� k-,, ., -`i First. Amendment does not let a govern sage rather than the medium. =: ,,, 'ficient communicative ele- � ,' .`''ci ,,; ... ment draw lines based'on the viewpoint the. One could try reductionism, but it would' the First Amendment into_„� ',`� �, `�'r�,v., 7. -• ;„. performer ,expresses; it does inquire. fail. All music is rhythmic pressure on the iske' ,.:ther`[a]n intent to`;.,: .,Ci''', „ • quartets,- a„;. whether particular -entertainment •is _ex- .eardrum. .Mozart s string jack- • L A ', ; iT F. 2 }fijy F F'�S,,' Tt-WE, • 4 i 1.p k1.R 11,i 1'j • .. ", ., r`., , ! ; 1126 904 FEDERAL'REPORTER, 2d SERIES rW3 ,`' x ; a p ; I' hammers, and humpback whales all pro- . things other than dance, or entertainment,.: " �.' , ,r P = 1 ! duce rhythmic.compressions.. Yet Mozart's or dance-as-entertainment, express "emo . ',` •th --.A. 1 ,'it'¢ I! I music is profound, jackhammers•are the tion". Quarterbacks who throw touchdown:,t�t t ". . !. r; 1 sound of progress.but express nothing be- passes exude emotion. Consistefit applica• - -,, ' si 1' yond what they do, and whale song, for all tion of the majority's approach prevents it ::` Nt - : ` e. 117't its haunting beauty, has only the message from limiting constitutional protection do' -the listener supplies. Laws'mufflingjack- "dance as entertainment". •�.;>: .• •rr�77 • f ,'X )t' - :,,„., -,..7.7. �Ad r '. t hammers, or. allowingthe huntingof g ". :. .. a. 1, 1 What of flashers, whose messy a ``x t , ' whales, do not violate the First Amend- ) � scarcely differs from nude dancers,?-I ' .: -, ,, ment. x,� :.••.: 1 i ' ' Imagine an organized flasher, shucking his s ,,;• ' ," "•S, 44 t` if ii` . To say that the line between barroom coat in a booth next to the hot dog vendor - ;.• ; a;!i t; dancing and ballet is indistinct is not to.say and adding a boom box and hip motions." -,, '', ; '' `',' ,, r�! ;,{i that no state may recognize the difference: This is "dance" as my colleagues use that :� , ;,;E°i;!' [W]e would poorly serve both the inter word: If dance is "inherently" expressive '_£ , •4{€ Iii (; t.ests for .which the State may validly seek then the flasher's act is speech; it can't 'y ,,F • ,x 2_ vindication and the interests ` �,t�a; protectedby matter that the display takes place..out; 2;: ,,' 'f•. l', the First and Fourteenth Amendments doors, or that the customersgawk for free "', ;; 111 ;i, were we to insist that the sort of bacchana- *' ,;; Flashers affront an unwilling audience,.yet ? .•` lian revelries [nude barroom dancing!] that !; t speech is protected even when listeners are 'R pit: „« °'a 1: the Department sought to prevent by these =� t s revolted, Cohen v. California,403 U.S..15, ',' a , , t#{ ''; I liquor,regulations were the constitutional ' ,r �, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 r w - x.,-. `41 I equivalent of a performance by a scantily (1971). Courts holding that nude'dance is,"` `4 ` '" ' "� 1F'� clad ballet troupe.in a theater." Cali or- :" ........ � 4-,. - �;• v t 4 - P f protected speech when the dancers are.,in- ; M... . .,.-, ,--- , . _ nia v. LaRue, 409 U.S. 109, 118,,93 S,Ct. x. ( ) doors, and the customers pay'to watch, but ; • „` 390, 397,.34 L.Ed.2d-342 1973. The line - • not"otherwise e.g. International Food &, t #' separating photos that are obscene .from Beverage Systems V. Ft. Lauderda•le, 794 -�',; *' , 41, �� : those the:Constitution protects.depends'in F..2d 1520, 1525 (11th Cir.1986) (which the e„,.< ,. '. part on whether:the work, .taken as a 1t y lacks serious liters majority quotes approvingly at"1087),"offer #_ whole, literary artlStlC, polltl- rr „ N+ Ft' �i cal or scientific value",.Miller v. Califor- no •principle by which expression turns 4 �j 1 nia, 413 U.S..15 24,93 S.Ct. 2614.37 on,the existence of walls, or the solvency`, t; , ' 2607,: or approval of the audience. See Erznoz ; .� •` . ,r ‘, 1` L.Ed.2d 419 (1973). So the Court believes that the Constitution allows states'to des- nik v. Jacksonville, 4.22 U.S. 405, 95 S.Ct 4=, ,, ' � "r1�rr.:': - __-tinguish.seriousart:from swill._.Nude-bar- .- 2362,`45 L.Ed.2d 280 (1975) (drive-in movie r�'. isprotected s eech despite. _ r t 'f* i room dancinglacks "serious liters P . fact that unwell 't, ry,.antis- }' "„ (14 Al tic, political or scientific value". If it were ing people see,.and drivers may be distracts,,r i j; `' real speech it would not be obscene (it is ed by, the images). : ,. - n = 4• ., z '�. too mild to'satisfy the rest of the Miller ,.Barroom displays are to ballet as white, ,_. -.. , f, r ,' test), but the lack.of "serious :.:`•artistic noise is to music. We know that sexualY F: =`' +L1111 -:'.'value" assures us, that Indiana is riot congress is. not protected. by the First ,�.,i,., squelchin•g 6 , •.-1,•.•,,,,v.-„ -,?-4.,, ' itlIa4.-I Squelching-important aspects of culture: Amendment, whether offered to. the public is , k, l'` ' -Why is it-important that the plaintiffs as entertainment,Paris Adult Theatre I v.• "" �:'� a, r�f ��: F , dance? The court uses a definition of Slaton, 413 U.S.49, 67,93 S.Ct. 2628,2640; ; - w•z t y • dancing ("moving the body in a rhythmical 37, L.Ed.2d 446 (1973), or'sold in a spots"" r way, usually to'music", maj.`op:•at 1085) market, Arcara"v. Cloud Books, Inc., 478 3+ ?� ^T'y: ' :i. « 'ifs broad enough to'cover most physical activi U.S...697,,�105, .106,S.Ct. "3172, 3176,::92,Y t ty. Swimmers, roller skaters, ice skaters, L.Ed.2d 568'(1986). Sex my be entertain-, . ` ); 1?.: walkers, skateboarders, matadors, and con: ing and is at least as expressive as nude �' • ;f d,x 1,, struction workers using jackhammers move go-go dancing. Because the patrons•-do not 4, ,, ;; rhythmically, often to music. The majority fondle the dancers, our case is not 4rcara, , +,. / .- x' : believes, that "the'communication of emo- but this distinction is unrelated to expres a�,'. _' . . f tion or 'ideas" (ibid., emphasis'added) ''is sion. Indeed 'on the majority's view "la !-',,,I protected by the First Amendment. Many dancing", a form of fondling, also might be' ', - ;.,,: 't l - r �` 1f { ,r�t. 4y i ",. • I SFr., ',1:, ' ,r"}j DY }. `<u1'': .• li' MILLER v. CIVIL::CITY"OF-SOUTH BEND 1127 er tl ,. „ante, or ante ,' Cite as 904 F.2d 1081 (7th Clr. 1990) rtainment r; • s-entertainment, express ." ;a� protected •speech, because it too expresses D P emo�A"` - . , ''the'joy`of sex and involves "moving the Lrterbacks who throw touchdo' '' '� We are told that however wide the gulf de emotion. •Consistent a` , • ��' .!" .,":jldy;in�a rhythmical way, usually to mu- between striptease dancing and the Feder majority's approachpreventslira to `' 5'f- Sic"') alist Papers, the Rubicon was crossed in ❑g constitutional protection }' w • i :,,.r_r ;If the First Amendment covers entertain- Schad.v. Mt. Ephraim, 452 U.S. 61,_101 )ntertainment". ..-.;;;":7<`l; ': • t'-ment,liow ought we treat bullfighting, un- S.Ct. 2176, 68 L.Ed.2d 671 (1981). It flashers, whose "messy e" . • s' ' ;" llawful throughout this nation but popular wasn't. Schad dealt with a zoning ordi ffers from nude g, '� t � :m many others? The matador"entertains" nance that forbade all live entertainment. A ,, .ow, , )rganized flasher, shucking his`' .:�~{% ' lM1ino less than the stripper and "expresses" This barred the town gates to Dylan Thom- )th next to the hot dog vendor s:`° ; " ;r'-w •more. :Bullfighting is a form of dance, as's Under Milkwood as well as to plays a boom box and hip motions. f' w `'""with elaborate choreography and messages and other forms of speech. The Court held ,e„ as my collea :;•. :s.,, : ', gues use that 4'e.,: :, ' st,2; -clearly perceived by the "spectators. it overbroad. By dismissing the appeal.in ice is "inherently" expressive?c ,• :,'.'`It Indiana does not offer even a time, place, Baysinger, the Court has already held that iher's act is speech; it.can't f :' `• , and manner for the.sport. If it were.to Indiana's public nudity statute is not over- the display takes place- out *:' ,' Ladd baseball or checkers to the list of for- broad. the customers gawk for.free..•�,yc ,�''''p`�,,��y�' ,,__. ,„...' � � , bidden pleasures, or if Congress-were to Although the laws have nothing in com- �nt an unwilling audience,yet•4 ' ', '`'",t,black.out.telecasts of football games when . : :�.- mon, Schad contains language that has acted even when listeners are_y;': ": ; .f,..§the stadiums do not sell out (it has),,objec- been taken to resolve the question before 'n v. California, 403 U.S. lb,` n, ;; • lions.„could not be based on the, First 'us. 29 L.Ed.2d 284 ' '' F.-.Amendment. - s holding that nude dance is , ,�y.. `'','' ` By excluding live entertainment through- " "E ': .,,a8No one can escape the bullfighting prob- out'the Borough, the Mount'Ephraim ch when the dancers areF in s _. -` , r;'l em. by customers pay to watch, but`?-:t„`,4 ."..r, animals_saying ch tstate, lawshat it l forbid.ves cruelty to ordinance prohibits a wide n'range'of ex- ;,, g:, pression that has long been held' to lie e.g., International Food'&. _; :`f. 3�;; ?%l ad:Code 35-46-3-12 a 1 . That is not • sins § ( )( ) within the protections of the First jand Lauderdale, 794X.. �0.~'- ,,'y '.the'only reason we forbid such spectacles. • Fourteenth '`'Amendments.' - Entertain- • i (11' -r:1986) (which the` r'' • ,, : `-Bearbaiting and cockfighting are'prohibit- meet; as well'as political and ideological approvingly at'1087),offer!,,":` - . '1P°,n,"ed T only'in part out of compassion:for'the ' speech, :is: ,protected;' 'motion pictures, which expression" turns 'i '," ,._ <suffering animals; the main reason;they programs 'broadcast by 'radio 'and tele- of walls, or the solvencx}� -:`-''' "- he audience. See Erznoz`s_r`{"' ';' 'were abolished was because it was felt.that vision, and'live-'entertainment, such :as tile, 422 U.S. 405, 95 S;c';' =Ethey..debased and brutalized the citizenry ., musical and dramatic':works,'fall':within 280 (1975) (drive-in,movie ;� ,�, : ';:;,who flocked to.witness such spectacles:' ,.the _First'Amendment`guarantee:; "Nor ch despite fact that unwill-:.,F "" ' ' t Irving,I{ristol, On the Democratic Idea.in may,an entertainment program be:pro- . lr id drivers may be distract :: ;g; ' America 33(1972). One may say the same _,:. hibited _solely because«it displays "the • o> stri tease dancin An a" the ues - — . s _.._ q nude-human -figure.--,[N•]udity alone"-- '''',''' ' ',4 '�•cation is whether the matador is speaking._ does not place otherwise protected mate- ,ys are to ballet as white: 3 ,whether the First,.Amendment applies— rial. outside the mantle of the -First We know. that sexual::'};; ,.` . • `'"not,whether the states claim to re late Amendment_ Furthermore, as the state protected b " t , :.. . Y the First >' ,4, a:' ;her offered to the ubhc Y ti. h.• ; ' surmounts that hurdle.. ,Despite.its.refrain courts in this case recognized,nude dine- protected the opinion is limited to dance.as enter- ing is not without its First Amendment Paris Adult Theatre I v 'i ,tainment, the court's approach means that protections from official,yregulation.�- 9, 67,.93 S.Ct.2628,2640;' "�' ",; ,j " r:; . �„ �,_bullfighting is speech. If so, it is hard ' • • Whatever First Amendment protection 973), or sold in a spot -F!:7.,?�-`�Y' _ - ' Cloud Books, Inc.,, ,'•. , see on what ground..a state may, forbid .:.should be extended to nude dancing, live• 6 S-Ct. 3172, In3176, 98 =bullfighting. Speech is.. protected, even `-or on film, however, the Mount,Ephraim v` .' :when•it produces risks-to people,.as in • ordinance prohibits all live entertainment•Sex may be entertain `F ff. ,a' } ;, , ' -. .Brandenburg.v..:Ohio, 395.U.S. 444, 89 in the Borough;.'-no property in the Bor- as expressive.as nude - k~ "- -S:Ct.1827 23 L.Ed.2d 430 1969 and�Hud- ough maybe pause the patrons do not y� �r� ( )' � g principally:used 'for ahe a '•,"�, ;_ •nut, 771 F.2d at 328-30. I cannot accept a . • commercial production of plays, concerts, • our case is not Arcara," .,;- ` :rationale implying that a state-may muffle ,.musicals,dance,or any other form'of live.. is unrelated to ex res- • ° i. "'.'` ' ' ie majority's view "la " ` speech to promote the welfare of bulls.but , entertainment. Because. �. appellants:,_,_ fond, - also might be a z;;_,-"•.•. "":• ''not to promote the welfare of..blacks claims are,.rooted in the First ;Amend`': • , '; '.:r; (Brandenburg) or'women (Hudnut)." i ment, theyare entitled to relyon the -..is •..,.g,: • IN • r z •,. • ;;' " ' 1128 904 FEDERAL.REPORTER, 2d SERIES . '*•. 1 ^ k? I ' ' { P y k' ,n impact of the ordinance on the expressive fered live nude dancing to his patrons. -If " i.� `• i it i' activities of others as well as their own. nude dancing is expression, or if all enter- 4,1 x 452 U.S. at 65-66, 101 S.Ct. at 2180-2181 tainment is protected speech, it would have .;1E' ;-i- r N'''i (citations and footnote omitted). Culling been simple to say: "Schad offers enter- _1?q F:- : ' ':,r, 't .` this passage and adding ellipsis can pro- tainment, which the borough forbids; ;`;-;"`- ,'"' duce phrases' such as "nude dancing ... therefore the law is unconstitutional." In- ':::. ,, 'i'°,4 ' [is] rooted in the First Amendment", but stead the Court said that"[w]hatever First ' .f:.. h s: "; ! this is not the Court's point. It tells us Amendmentprotection should be extended '�I• '~= -r _ -p, ° 'd -' that a "wide range of expression" is pro- to nude dancing", Schad's "claims"(not the ', ' ,�s: � F i'" ' tected, and that "`[n]udity alone''does not nudity)were sufficiently rooted in the First v J" •,4;.•, } t t i II place otherwise protected material outside Amendment that he could contest the appli ;, -. J 'i' ;. the mantle of the First Amendment". Con- i ' k 4}r;� ,, cation of the ordinance to "the expressive ,:�is ,- ir n ;r,',;, duct gets to be "otherwise protected", how- activities of others". Only three weeks ,a',.. .� z,- i + ' ever, by having an element of expres later Justice Stevens remarked that al ': �''' • x i Lit!!! ' sion". So nudity at the end of Hair does though the Court has "written several opin- :;'.a/" . ,',,-it;"- *. ;'t.., ,. • ' rlj,�I '- 4.• not withdraw the protection for the politi ions implying that nude or partially nude '.."' .., �,:° cal expression that dominates that la r= i•. i; P play, dancing is a form of expressive activity •. , , }r'' C Southeastern Promotions, Ltd. v. Con ?. ^ ,,; protected by the"First Amendment, the , , 34 t.l i,r rad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d �i i , x: lit' Court has never directlyconfronted the 4,;,,p 4{=': ;: 4 1t t 448 (1975). Nudity in a ballet expressing P g question". New York State Liquor Au < �; `�''=�' 1, R ideas would not remove it from the realm q 9 r '',,' `fir thorny v. Bellanca, 452 U.S. 714, 718-19, ,¢:��` r 8 u of speech. These principles do not aid the ' �?��k 101 S.Ct. 2599, 2602, 60 L.Ed.2d 357 (1981) h plaintiffs today,however, for they have notL -' ` 7 � � . (dissenting opinion). Justice White, the au ;._` ,.3.,z: - ,in established that they are engaged in '"ex- 1 F �'i I; pression'.': thor of Schad, concluded four years ago ;�� '' �s'', ,; _ „ ki that the status of nude dancing remains Al- c * :, r Cases such as Doran v. Salem.Inn, .' ' �' � � Inc., unsettled. : Young v: Arkansas, 474 U.S s,��F.,�i�. 422 U.S: 922, 932,.95 S.Ct, 2561, 2568,,45 'f '' '',; , , i 1070, 1072, 106 S.Ct. 830, 832, 88 L.Ed.2d , <.ii, L.Ed.2d 648 (1975), are no more.;helpful: -801.(1986) (dissenting from,the_,denial of S ''\"-' ,l, "[a]lthough the customary `barroom',type certiorari):. Nothing since then changes <`. ` „r .ra,t , , of nude dancing"may involve only the:bar- ', •- ;.,'i I. .that.assessment. ., , d =4r f➢e I est minimum of,protected expression, :... , ,, _� t" i ,ty# this form of entertainment might.be'enti- Dallas V. Stanglin, U.S. , 109. y r k'; '`- tled to First and Fourteenth Amendment S.Ct."1591, 1595, 104 L.Ed,2d "18 (1989), r'• i•t-; gtf� r i ,I„ protection: -.tinder some.circumstances." comes'closest to our problem. It holds that ,F.1••,N ,y r ••;] �,t (Citation omitted, emphasis added) 'Under 'social dancing'is not "expressive activity �, ? �, what circumstances? When it coinmuni- ^. protected by the First Amendment. , . "'r 1r 1 i cates something,I should think, FW%PBS, How is nude 'barroom dancing different ' :',�r =1... ,„ 4�A Inc: v.`Dallas, =U.S,=;110 S.Ct.'596, from social ballroom dancing? The court r . ; ' 107 L.Ed,2d 603 (1990), is even less"aid to does not say; it does not mention Stanglin. -. ,,,Jf • ! 11i 'it the plaintiffs,•for there the city conceded The concurring opinion suggests (op. 1092) 1 *tip. ',rw'"" ' } f} :that nude dancing is speech, and "[i]t is that the difference-lies in performance: so- ,ic. .•, s , ' ,r r,;r, • ,.•ti . Ili,{` [the] Court's practice to decline to review cial dancing is like "casual chit-chat", not .,,i, , 'r - „ ;14;I6`f` those issues neither pressed nor passed the kind of "statement" that the First r r.-' 'l I ,'' upon in.the court of appeals. Id, at'604, Amendment protects,•`rThe majority does ,� t}:;� ;; ,;� i ;1.4 To the extent Schad and Doran offer not embrace this, for good reason. ' The �a ?^ zit.., 1 ". .guidance,the Courts resort to overt readth sole case on which the concurring-opinion, ;*: c ► , '''}' - analysis implies that nude dancing is.not relies arises out-of public; employment. •'7: •,,K Y r ; 4. ' 41 ;i : • always clothed with expression. : ..Over- Employees who go to work for the govern- •4'"•f.:;F.r.,,..�. • 14,, ii. `'" breadth is a special doctrine entitling some ment surrender rights to speak to the ex- s�w" �' , 1"141 e '' one whose words or deeds could be regulat- tent necessary to allow the government-to y , i" -` , ,>;,r r,lij ed or even proscribed to prevail.on the function. . E.g., CSC .v. Letter Carriers, r� s �;i ,� .;,: ground that as applied to someone.elseahe 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 R a( • t-.4,4.'i s j"i!;i:.,' law prohibits protected speech, Schad of- (1973); Snepp v. United States, 444 U.S. ' ,'�,',s^F`, �, t . - r _..y y r * '0 1111 4�L t't „., 111 .: h .,w 'd}'... ' - i. � 'il,� .c r+.`.�.5.'r ,e .�s -, • SEl- `•5 MILLER v:-CIVIL CITY OF SOUTH BEND F, , 1129 4a Clte as 904 F.2d 1081 (7th Cir. 1990) ade dancing to his patrons. 'If« '' ;r•,�,' ' g is expression, or if all enter-a-, ;�&��,'`;',507, 100 S.Ct. 763,"62 L.Ed.2d 704 (1980). the speeding laws, or comments on the a ..•, • ,Even in the public employee cases an audi- dominance of man over machine, or de-' ?rotected speech, it would have , : :,_ !,''ence"is'not essential to constitutional pro- claims the low value of children's lives, or to say: "Schad offers enter- ..c:r :'' tection.- Rankin v. McPherson, 483 U.S. advertises the capabilities.of the car. So vhich the borough forbids r;»; ::�,',.LK . law is unconstitutional." Ills; 'R `' *• 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987). too we attribute to nude dancing a belief in" . r, '',. See also; e.g:, Norwell v. Cincinnati, 414 the value of Eros, or a retelling of the art said that"[w]hatever First .1;.... U.S. 14; 94 S.Ct. 187, 38 L.Ed.2d 170 (1973) Genesis story, or a burst of lustful emo- protection should be extended ` ' �' '` „ ,,,. • ��. (insulting language to a police Officer's tion. If that strains credulity we may con- ing , Schad's "claims"(not the �"'i :.. tip= '`' sleep in ( ;>�;�.;;•face): Congress"could not imprison anyone suit the books. Persons wanted to sufficiently rooted in the First + °F,. �;i 1: ,.'. on account of words of endearment *his- the national parks in.CCNV to show that r„,r� y e that he could contest the appli- ;L''''-i,':`1:4,,, ,:tt, ,�=`j' pered in the ear of a loved one. If privacy the high price of housing bred homeless: ordinance to "the expressive ofspeech 'does not blot out the First ness; strippers protest the high cost of others". Only three weeks ?" rt•:-'' 'Aiiiendment "then the difference between clothing. :- Stevens remarked that al- ,'::;M�>.; Pk '',;.,- 'Iie'brazen display of barroom dancing and This is clever invention, too clever for )urt has "written several opin- 'Y:"1 ; < .1�`?'" the subdued display of ballroom dancing constitutional adjudication. Neither the that nude or partially nude r-4,: i`. ;' c 9 dancers nor their lawyers came up with a �,� ,,}:, cannot.recopcile this case with Stan lin.form of expressive activity ;?._; Perhaps,then,the concurring view depends message'in' five years of litigation. That the First Amendment, the `:;G';;`),'• : _ on.the principle that "low value" speech of well-read judges can tease out of dancqr', Ter directly confronted the : r ` ,.• .� _` all kinds is unprotected. Yet what keeps acts thoughts the dancers never had, and rew York State Liquor Au=-�`z "'" nude r dancing out of' that catego- . divine in a rule requiring opaque covering 'lama, 452 U.S. 714, 718-19, =, ,:.w'' ; y? barroom'; r. of the nipples a threat to--the display-Of , 2602, 60 L.Ed.2d 357 (1981) '� o,,:,�.. nion). Justice White, the au s a A line that distinguishes'barroom danc- Aubrey Beardsley's prints, shows the im=- i, k 1 r7.;: ing (protected)from ballroom dancing (un- portance of drawing lines rather than the concluded four years ago i l a , : ,protected)has.little virtue other than avoid need to obliterate them. "It is:possible to s of a dancing remains t'' _: ing`inconvenientprecedent such'as Stan find some kernel of expression in almost' ung lrkansas, 474 U.S:_K.-1° i" ' 9 eve activityaperson undertakes ... but .:; • • - , ;IT.'"'If t'he•"expression" in barroom danc- ry P ; S.Gt.830, 832, 88 L.Ed.2d ; '?'¢r mg-1 es, as my'colleagues believe,'maj op: such a kernel is not sufficient to bring the, senting from;the--,denial:of-' F,M :,_ `r•-1086-87"in a celebration of sex, cone ng activity within the protection of the First .r- yl..g othing since then _chan es,:`it "�, �9 g . r'tlie pleasure''dancers take'in"sensuality; Amendment" Stanglin, 109 S.Ct. at1595-' if• ' :r:'L -'fit;.social dancing is the more expressive Bar- Transmogrifying conduct .:into speech anglin,f—=U.S. , "e: %ioom `'dancers feigpemotion ballroom thrusts courts into the business of substan i)5,_:104"L.Ed.2d 18'(1989)`- >'; ; ?dancers.'express :the. real thing. ., So`if five due process. For if entertainment is" )our problem. It holds that...,, %- °,, precedent.is what drives our court today, speech, then,it is subject only to "reason-: is not "expressive activity • ..'p the'most• p • case is Stan lin-which ' r;; powerful9 able time, place, and;manner restrictions,,. by the First Amendmen ? , -t --- barroom s4 undermines=the;majority's conclusion -� "Reasonable" -is-the key word. "Legisla' *: , �: . g that the barroom dancing different fit,-, ." }':- ra :; tures bear the burden of showing 'room dancin ? . - ' . -, .... ;' ,-.- doesThe'court a,•a `E ,• regulation is reasonable.. What is "reason-- does not mention Stanglin.,," • a 8sSpeech `versus conduct.is not only the able", except what is wise? Assessing the opinion suggests (op. 1092) ' _;. •First Amend'ment's-line but also a dist%nc- wisdom of legislation is the program.of-. ice lies in performance: so- k.4::: Lochner.:, It failed when applied to wages-:. ,,,. ''i,� 'tion. essential' to�democratic-governance. . .- ,, ,� like "casual chit-chat",-`•not;4'''e''';..• people act_for reasons: Acts therefore im- and hours laws and is no more suited;to,::,:: ,tatement" that the-•First._ x +t `- nude dancing. "Reasonableness" is not a p , , ply'the virtue or import of these reasons. Itects. -The majority does a ,' . 8 ..,-:., .:Arid if come` eo le such'as'the dancers in standard, not law at all. John Hart Ely, is; for' good reason: ''The 1 ''"' '' ' P P Democra and Distrust 111-.16 1980•„T.,. lifts Kitty Kat Lounge, believe that-their ✓ )��... ich the concurringopinion ,`�. ''' ' . ,, �. autonomic nervous s stems•are in char e, Alexander Aleinikoff, Constitutional Law P Lt .of public:employment.,; '` • ,t-7, SO-that they have" no message, 'Sigmund, in an Age of Balancing, 96 Yale L.J..943, • ;o_to:work for the overn :- 966-68,'.,976-79, • 984-95 (1987). When" g Freud-will • correct'them. Even in a quan- rights to speak to the ex- ' `' courts assess the "reasonableness" of leg- - ;- ;;,, turn-mechanical universe there are reasons, allow the government to ?" 5' -: ,, , ' ' islation,theyand not.the elected legislators - ,,- , r ;,., and clever observers can infer messages CSC .v. Letter Carriers, :"- ,.s ' are the real policy-makers. -makers. 9QQn z_.r ;; ..having nothing to do with the id and the P y , S.Ct. - , 37 L.Ed.2d 796 ,,>_':''^ , ' ,, f 6. superego. =A driver doing 90.-in a school Preserving the spheres of judicial and Un States, 444 U.S.' zone makes an implicit proposal to change political decision is not "to abdicate:or �I, v,11 1 . .. r..lic ....: /4 •, .-f.'iiii - . . .4 ----, .11-' 1 1 130 904 FEDERAL REPORTER, 2d.SERIES :" ..,j .,.:;.. i ' ,,.... avoid [judicial] responsibility" maj. op, Judges avoid this by insisting on categor± ,A ' ,: ,t/ 1085 n. 4. You can't "abdicate" a power ical rules. -"Conduct"and"speech"are the • .' c . l you do not possess. When deciding wheth- principal categories, and observing that - dis' er judicial power exists a court must recog- tinction is essential if we wish to maintain II , nize the importance of preserving distinc- the boundary between legislative and judi; tive political and judicial roles. If.nude cial roles in a democratic society. Any II dancing-1s "speech" it is so by the barest sentient being knoWs that categories are -; 1 "1- margin; someone standing at the center of imperfect Lawyers are trained to dispar7; -,% ,.1-!! the First Amendment (political speech) age line drawing by showing that no mat '':,:.9' ' ., . I would need binoculars to see this far into ter where the line goes you can frame I the periphery. Judges should not establish essentially indistinguishable cases on either :,:g ii Ili •• ,i.7.:0,. rules that "disserve[] principles of demo- side. Such a line is nonsensical!, comes the. I I[ 11 cratic self governance", Garcia v. San An- coupe de grace. The exercise is child's I -' "". :I 11, , tonio Metropolitan Transit Authority, play in the domain of art and entertainT 469 U.S" 528, 547, 105 S.Ct 1005, 1015, 83 ment,for"what is art?"is a questionunani--,) L.Ed.2d 1016 (1985), "Values that are.pro- swered for centuries. Albrecht Duver and rn tected against govemental interference &vandal wielding a can of spray paint have ft!: I - ci4 0 through enshrinement in the Bill of Rights some things (paint, surfaces, emotions) are not thereby banished from the political common. Yet the extremes are distinctive, . process", Employment Division v. Smith, and the difference permits a line even 'U e .S. at --; 110 S.Ct. at 1606, and though other cases are much closer. ',0.-1.:;‘,A ,l jndgeust respect the boundary between United States v. Powell, 423 U.S. 87,93, 9-6.:1 ;' "1 ;-'11 11 ; that process and the domain of law. -09n- S.Ct. 316, 320, 46 L.Ed.2cI,228 (1975). • ,-,-,;aS* 1 • ,,.§...,t,.,--,. • • -1,,, cern about the limits of judicial power, ; Political society depends on stable.1inesAr,:, about the authority for an official.with life to govern a world of continuums.::-:44 -,, tenure to countermand a decision of the thing else transfers.the locus of tiOwsk4.,:N elected legislature, must be at the fore- Judges who see the many facets of a sub- front in:eyery constitutional case. Article jeet, who know that just as a line canngt'i...'r•-..;::, -i•,, 4 ' 1 III does not.commit to fedeial,coortg.. the bisect.a sphere so no one-d_hnensional rule.,"'..,i .. • resolution •of all questions about the can partition a multi-dimensional-WoriCi', 1 i ''; - .-.. 1:' ''''':•.* ' wisdom of rules. Allen 'V... 'Wright,'468 also must understand the role lines"Piariit" IT.8. 137; 750-53, 104 S.CC 3315,-3324:-* governance and the allocation offunctiOig-SI,,,,:: 82 L.Ed.2d 556(1984); Chevron USA Inc Complex reality mocks rules, yet we mustf,-: ., v. Natural Resources Defense Council, deny ourselves the comfort of requnkihel.V• ; •-4,,,rk':. :$:-.;', inc:; 467 .f.T.S. 837, 865-66, 104 S.Ct.'2778, law to match the universe. 'Holmes inicig,;_;;47,1,, i I' 1'-ff-- .14'' ' ,' -,- -2788-93; 81-LEd.2d 694 (1984); Vance : stood this. Klein V. Board of Tax Siplg:;:,..Y ili i t _ Bradley, 440 V.S. 93, 110-11, 99 S.Ct. 939, visors, 282 U.S. 19, 23, 51 S.Ct. 15, 15-1(14 •1- - - 949-50;59 L,Ed:2c1 171 (1979); TVA V.:Hi4l, 75 L.Ed. 140 (1930); Hudson County Wa:_,,,,,,- ,4 1 r...4. 4 " • --. 437 U.S. 153, 195, 98 S.Ct. 2279, 2302;1.157 ter Co v. McCarter, 209 U.S. 349, 355, 28 twillr4r1i.: . : L.Ed..2c1 117 (1978). Yet it is exactly that S.Ct.529, 531, 52 L.Ed. 828 (1908). ,An:eq,:,:,1;,:i'' a• '!ilii power we claim in first treating conduct as of balancing has.obscured this messaee,,,i,74-'.: i : ...,.,...:-. "speech" and then Saying that:only'"red-- but It is no less important today. -5Se..elt,s,,.',:. . • ionable" regulation is allowed. The First Employment Division v. Smith, -7 U.A,:M;5•''''.:4 1 ..,.`,Y:•:,. 14., ., ,.:H Amendment is designed to get government at.----.n. 5, 110 S.Ct. at 1606 n..5:. it-4s . .,i,,,,,, - out of the business of regulating speech "horrible to contemplate that i federal Z, While preserving to legislators'freedonito judgeS,will regularly balance against the 1 , -fp act with respect to.,other' human affairs..-.importance of general laws the signifiean01:,7•,;:,.:, 1 U.:• 7 1,:: ,I- r The court's:tWo-st6p; .by contrast, treats of religious practice"-or, I should think,. I if. .conduct as speech yet asserts a broad pow- the significance of nudity to a dance. -7;3--,:14:,,-_-:•,„4 er to' regulate speech ("reasonably"; of . • . : . -- mri-?,,k';.,,,.,,.. .i 'f f• course) and means that fundamental deali III ,• •: .-:-.0i,;?.:,-' 1 sions about legislation of all kinds vest in If go-go dancing were "expression", and, ....- : the judiciary.:, . ; : - : • if dancers regularly undressed during the , • 4: ii. 1 , 1'14 ii, ` L!f :44Vg.j; c i !,•.;t!' 4.1 • • 1/1 • k'' tIE; F :'` • • MILLER v. CIVIL CITY OF SOUTH BEND - 1131 ;'.,,IV,:.' .,,IV, "° "�' � ' Cite as 904 F2d 1081 (7th Clr. 1990) _ this by insisting on categor ;g kx 5;;.- ,., `bacchanal in the third act of Saint-Satins' Darlene Miller wants.to impress the.barf- tduct"and"speech"are the `4; `:+ • r ^ > 'Samson et Dalila without objection from lies so they will ply her with drinks. She ties, and observing that dis- a °'..%.:° ;.•• :Indiana,we would have an interesting ease. believes that the impression made by her itial if we wish to maintain s ' " ' So far as this record reveals, however, act varies inversely with the amount of ' tween legislative and judi- _ ' "there'is neither expression nor unequal en- clothing she wears. She is the best judge democratic society. Any -forcement according to viewpoint. An offi- of her self-:interest but this has nothing to knows that categories are ` r'�h7, «;. =cer told the judge that he had never arrest- do with the First Amendment. We,may yers are trained to dis par- : '"1# • ;,ti„^ t3', g doubt the, wisdom of requiring women to P " e . ': ••ed a ballet dancer for nudi but nothin by showing that no mat- i ' wear more clothingin the bars of South -in the record suggests that ballet dancers line goes you can frame 11w t • pirouette without tutus in his jurisdiction. Bend than in the Folies Bergere or on.the inguishable cases on either �� : . z.'. `fr;, .;-•':-' • beaches of Rio-de Janeiro without conclud- r i° i i '+ may expressing that Indiana has exceeded its powers is nonsensical!, comes the Ky i q , ,, -•,.Statutes moral views about • The exercise is child's ";`'• 13`` ``7;-. ,how the community should live. See Bow- under the Constitution. lain of art and entertain: ``%:',`'' :� ' ers v. Hardwick, 478 U.S. 186, 196, 106 . - is art?"is a question unan- T;` ?.- -: - �' S.Ct.. 2841, 2846, 92 L.Ed.2d. 140 (1986); MANION, Circuit Judge, with whom • tries. Albrecht Duver and ';�.. •t44 ti,; `_Paris Adult Theatre I, 413 .U.S. at 57-63, COFFEY and EASTERBROOK, Circuit �. , a can of spray paint have R,, r,, a. -93 S.Ct.. at 2635-38, Dronenburg v. Zech, Judges, join,..dissenting.. int, surfaces, emotions in 't' ' 741 F.2d 1388,. 1397.(D.C.Cir.1984) (Bork, Today this court holds that "freedom of Xy - e extremes are distinctive •;P .,1 J.). Much law is based on nothingother .;, y •,''. speech" protects public, nonverbal, nude rice permits a line" ev•en ,' w r .. than moral views. Sometimes.,morality dancing`that communicates no ideas and is yes are much closer. Cf. •r , • . combines •with •instrumental concerns. _We considered harmful. Not surprisingly, in Powell, 423 U.S. 87, 93,96 t", 5- a _ -accepted as adequate to support legislation • •their briefs and at oral argument the par- 6 L.Ed.2d 228 (1975). .. '•: ,, .the belief that dis la women in a.sexu- P.. Ymg . ties never discussed the text of the First y depends on stable lines'•Fay ;:.;:,'=` 'fi -,.,. pally submissive way shapes social,patterns Amendment: • Perhaps this is -because •ld c'depends. Any' F ,' _ � ; ato,women's detriment. Hudnut,.771 '.2d everyone knows that"Congress shall make ` fers ' locus of power P ��'} ' ,ix ,at:328-30. This court held Indianapolis's no law . abridging the freedom 'of ` ;he many'facets of a sub- �� , - 1 �^. �.ordinance unconstitutional.only.because.it speech"; more likely; it is because refer- hat'just as a line Cannot et&F r}":�""•° "``'..,distinguished on account of the speaker's ence to the text is a stark reminder of how o no one dimensional rule : , ,_ wp y j far First :Amendment jurisprudence;._has• rns. vie •oint. Man of the ustifications;ad- multi=dimensional'world k • vaned for the Indianapolis ordinance could 'gone.astray. land the role lines play m ,Rr ,,'. • ,be,;offered for restrictions on displays•;in - Miller should not o z y.� ,' prevail for two reasons. he allocation'of,functions..'ti `: pubs. Cf. Renton V. Playtime Theatres, t" First,the district court found that the nude pocks rules, yet we.must ,,„�f r� � ,; w. 475 U.S..41' 106 S.Ct. 925 89 L•Ed 2d ,� •• , ., �. r : , ,• • ••••• . ' dancing at issue.contained no expressive comfort of requiring the '. `• `..f' • p r:. 29 (1986). Because-the public nudity`law ' universe.. Holmes"under f r' Y does not discriminate on account of view= -activity?' At oral argument Miller'a attor- ney admitted that this dancing communicat- v. Board of Tax Super ' oint it does not have the defect that lead ; 9, 23, 51 S.Ct. 15, 15-16, ;.` `= ' ▪�' a , , ed no idea or message. '_The district courts , s` ,,,to •invalidity •in Hudnut. ,.."" •finding was not clearly erroneous,'and we )); Hudson County Wa - , " " "`' Ma be all of this is rationalization•Of•a should affirm;on that basis' s,.; , er, 209 U.S. 349, 355,28 .;sae,,•. , Y L.Ed. 828 (1908).: An era �'; `:f ° •,,. law that has no effects beyond"depriving Second, assuming for the sake of argu- , obscured this message, ] ,%choi polloi of a harmless pastime. Maybe ment that striptease contains an expressive •, important today. ,See : .:not: "Ours is not the"decision..."States may element, this statute is valid because the ision v. Smith, — U.S. .+:l# r,'1 .4%-4.,,,., 'offer different social"climates from which state interest in preventing public nudity-, S.Ct. at 1606 n. 5:" It is f �. -the"people.may select. .".,Indiana •has,gone,, an interest unrelated to'the•suppression of i that 4 rZ, - ttemplatefederal 1), E .Illinois another. Society is the richer when speech�utweighs whatever expressive el- '' Lrly balance against the 9 ~choices increase.. ." �---=_ ements are contained in a striptease.-...::The u.al.laws..the-significance ,ix x." , • �`•M1,at,:_.-`:; :.:_ ?.. .•: -:,_ ," ...._;:;: - ' . ::; `• s " -1 This is not'at odds with Suprt.me Court piece- S.Ct.~390, 396-97, 34 L Ed.2d 342 (1972),the tie"—or, I should think, e,y'`' f'�dent. •:The Supreme Court s ecificall has de- Court made clear that conduct such as nude ' nudity to a dance. f el; ' 1 '14 'r dined to rule on the scope of First Amendment dancing is protected by the First.Amendment y.,y-•., 1. protection to be afforded,nude dancing. -See •only when there is a"communicative element," III i"p-'.. = Young v.-Arkansas, 474 U.S. 1070, 1072, 106 citing U.S. v. O'Brien, 391 U.S. 367, 88 S.Ct. • .'._ , ,- , -', .� ,4•S.Ct.830,832,.88 L.Ed.2d 801(1986)(White,J., 1673, 20 L.Ed.2d 672 (1968). See dissenting wer pression",:atid,... `' • ;, 7 rr-dissenting from the denial of certiorari).;,•In opinion 'of Judge Easterbrook at 1127-29..?''z :; y ur. ••'ed during the, ��''''5:,:A +.: ' is California v. LaRue, 409 U.S. 109, 117-18, 93 - :) L. 1 ,x 1 PI' s p' ti N 3 i1 • ' 1 1132 904 FEDERAL:REPORTER, 2d• SERIES - :' i'i i j • �'� e' ,, ; a j ; majority, by its emphasis on dance,'dis- guide to constitutional interpretation" ' (,-.0, ..=:s •;,•1\, ';: ,• regards the fact that the challenged statute : changes. the. Constitution from.a "living .,. 1• ``• '- ; -a: ' i ' is not directed at dance but at public inde- document"into a"petrified reminder of the �' fyj t • cency, including "appearfing] in a state of limits of human foresight." "Concurring 'f, iI I i 1, , nudity" in a public place. Public nudity is op. at 1095. :Fortunately, with great fore- i 4 -• } i . conduct, and is prohibited in every state. sight the framers of the Constitution enact- "X a; Striptease dancers who remove all- their ed Article V, which allows adequate life , �4 . • i i clothing become nude in public, and their- support"'through the amendment.process. `liM { l . ,;1 conduct violates"the -statute.2- The Su- It takes little foresight to realize that s °' ' v'+ preme Court has upheld other content-neu- three-fourths of state legislatures would 4f '' 'c f tral regulations even though the speech in not ratify a Twenty-seventh Amendment �t ' those cases was-much closer to the core of that stated "the.-right of citizens of the ' _' 1 :i1 g ,� First Amendment protected activity than United States to entertain by dancing nude ,f 5,- • ,t 'j 1'; nude dancing. See U.S. v. O'Brien, 391 in public shall not be denied or abridged by ;) 'i 3 , ;i[ U.S. 367, 88 S.Ct. 1673, 20 L:Ed.2d .672 the United States or by any state." It is a A ,} '. j, �; s,(1968) (political protest to the military much simpler process for a handful of ` K, ,t , draft); Clark v. Community for Creative judges to protect,nude dancing as enter- ; r I Non—Violence, 468 U.S. 288, 104:..S.Ct. tainment by'calling it speech. = %4' A ii' a g ,; • �; 3065, 82 L.Ed.2d 221 (1984) (political pro Nothing in the Constitution prohibits ,` `i`z 0.'{ test relating to.homelessness). •:Here sthe public nudity. Modern legislatures make .`,i'' `; tt "t''; ` ' '`• , • state's valid interest in preserving .publicthose decisions in response to the desires of 't" .frt E moralit ustifies this statute des itev.its `a ,,,.`Y ] P the people. The Constitution grants broad" ;-_„, •^-`.'.1,; incidental impact on the "limited" .First power to legislatures in part because they V, , ...,1 :,I Amendment interests.the majority believes are best able to respond to changing times _ - P.,i 6:,- areinherent in nude dancing: Majority op. • :and social mores. Legislatures are always at 1085. ,; ,,,,V free'to create new liberties byrepealing -''''" ;` 3 • � . h ;, k i '-,,The majority finds expression that'"not outdated legislation or passing new laws ' '$ 'A•. , -,,.44 even Millers counsel much less the district and the Constitution has nothing to say. `>t.Ff:i'':';.° .. ' 1 S court"could find. Majority •op. at.'11087: about it: .. . - - •• " • -`-4 �.'"'` ., . t,_I _'. Although we must not ignore':original • .r :? ; ( Judge'"Posner observes 'that in 1990 w ''.$4 r . meaning when applying constitutional pro ''America "the project of stamping out nude '•X :: 1' `: •1 visions, we nevertheless cannot turn back w , � �, striptease dancing is quixotic. The power -� •-' . ", .the-,evolutionary, clock, powered by case- •of government is relative to the desires and � . k law, that has enlarged the circle of protec values'of its people.`-.The State of Indiana ' Via, 1. t,,, l 17,; tion:of the First Amendment. But we still cannot take the erotic edge off American �' , ,# : should consider original meaning if we`are culture. I doubt that it is'eventrying to-do ��,; ,1 ,. �'Y It -' It i to avoid enlarging. this circle even.more. so." Concurring op:at 1104. It should'be `;z, n. t ` j i .In his concurrence, Judge Posner:Sag- a arent.that the elected representative's .`.t.. ' ",, X-- g PP. - P • 1 .; 1 q' gests that "original understanding ,as a of the,people of Indiana are much better ,- r �•.... 2. Public nuditystatutes-"indecent`-ex osure' 683 F.Supp. 289 (D.Mass.1988) (women who ,� � 4" t:�' P �, ,��. ,;. • laws—of the type challenged here are-widely , bared breasts in a political protest of alleged I.- -accepted and usually upheld, even when.the unequal treatment and exploitation of women challenge is grounded in the First Amendment. not protected by First Amendment_); Chapin_y, `F 411,„ , ! L • See'South Florida Free Beaches v. City. of Miami, -• Town of Southampton,-457 F.Supp. 1170(E.D.N. r } ,, ?, .: 734 F.2d 608 (11th Cir.1984) (nude sunbathers' •Y.1978) (no First Amendment protection for . . ,._.,Y t'..,, •,i '•, f,ti • •argument that state law and city ordinances nude sunbathers who sought to communicate ~i .,`., t• ,.it. : + si prohibiting public nudity violated.their First..- •:ideas); Alexander v. Severson, 408 N.W.2d 195 - , , :. t t t. , " 'Amendment right to'demonstrate that "the hu- • ..(Minn.App.1987)(owner of adult bookstore fea- f. ;•; 1:r ; man body is wholesome and that nudity is not turing"exotic dancers"not entitled to injunction =�,, 9 = ,_ • i s i indecent"rejected because the First Amendment to prevent City of Minneapolis from enforcing ' ,; ''' ' .does not protect nudity unless combined•with its indecent conduct ordinance against dancers. w 1 ` �pia r.�"v. ,L .1 bU-.-". .some "mode of expression" entitled to•;First because no testimony"suggested an attempt to 3"-,,..,, ii• r..` if '-+ ,, Amendment protection); Williams- v. Kleppe, .convey ideas"in the dancing); State v. Turner, •' t j `,,r. 539 F.2d 803 (1st Cir.1976)(nude sunbathing in -' 382 N.W.2d 252 (Minn.App.1986) (nude. sun- ,, .`• i' '';F , 4 i I a national park not protected); Craft v. Hodel, bathing). •' $, Of : vr f`#g,ttt •rsx+k i f ,. ?=i. Rig, "` ti; ,'+'s • MILLER v...CIVIL CITY OF SOUTH BEND 1133 ` Cite as 904 F2d 1081 (7th CIr. 1990) tstitutional interpretation'.'_.. ; g • .� ,� ,suited to determinin "the desires and 2d 1031 (1942), when discussing the use of onstitution from-a "living "•4 I" •ues" of their people than those of us who "fighting words,"the Court held that some a"petrified reminder of the ° " '- �, :::1:-',.1;:;:'x -sit on this court.. We must assume that if "utterances are no essential part.of any to foresight." Concurring �:`r `, ` _Indiana did not believe nude•dancing was a exposition of ideas, and are of such slight rrtunately, with great fore.. rt, .• .,:4 -._ roblem, its•public nudity statute would be social value as a step to truth that any. . rs'of the Constitution enact- 4 V ' 's repealed, or at least not used against nude -benefit that may be derived from them is rhich allows adequate "life._A,.••r - i �i�:'•.barroom dancing: • : : •clearly outweighed by the social interest in ;h the amendment process..:,v. „• . ,aa ;.This court's decision stands only for the order and morality." In the obscenity con- • foresight to realize that . `,,x,`, �, proposition that we know better. than the text, Chief Justice Warren wrote of "the F state legislatures would , , = °Y .;people of Indiana. Nude dancing,ought to right of the Nation and of the States to venty seventh Amendment .' ;, : $ ..- ;be legal, therefore it must be protected.by maintain a decent society ..:" versus "the e right of citizens of the ht .. :.the Constitution. At.least Judge Posner's right of individuals to express themselves entertain by dancing nude K .4 concurrence is straightforward: .. freely." Jacobellis v. Ohio, 378 U.S. 184, )t be denied or abridged by ,'.. ., 4 • .; ";:Censorship of erotica is pretty ridiculous 199, 84 S.Ct. 1676,•1684, 12 L.Ed.2d 793 '': " (1964) (Warren, Ch.J., dissenting); Justice • s or by any state." It is a .s s �, too, What kind of people make a career trocess for a handful of. : h.; 1 g`:;' •' •of checking to see whether the covering Brennan in Roth v. United States, 354 U.S. a nude dancing as enter- -:k}t.'x'_ -,_ ::•of a.woman's nipples is fully opaque,,as 476,'484, 77 S.Ct. 1304, 1308, 1 L.Ed.24 ing it speech. ,;.' .,. x;. ? . y , ',„'„,,the-the statute requires? ... Many of us do 1498' (1957) and Chief Justice Burger in ''-''''not admire busybodies who want to'bring Paris Adult Theatre v. Slaton, 413 U.S. ie Constitution prohibits +' r�E` 49, 61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 �rt .;It' Modern legislatures make'r' ,, +F* ,,7= the force of law down on the heads of • 1 response to the desires of_Y'a +•� ` �,4 ;...'"-adults whose harmless private pleasures (1973), "implicitly-accepted that a legisla- t :211the busy bodies find revolting. `- -'._ ture could legitimately act ....to.,.protect Constitution grants broad' :a '`t Y g -. `the-social •interest•in order and morality.'"' uses in part because-the ';. Concurring op.at 1100. While that may be Y rz #,,. ,ci,. , Paris Adult Theatre, id.; citing Chaplin- . espond to changing times;;; t ,;s..••true, legislative busybodies can be tossed Le, '-' u �' a�•� ' .'ai.$t :sky.. The.'Paris.Court went on.:to. cite.";a ' Lures are always , 4-:;,out:;of,office at the next election:: 'We stment of Justice Holmes, made in-'a • ew 1, yes by repealing �' �x ' -. Judges'have lifetime insulation..from such • •ion or p •assing new laws '` harsh realities':'_But`since.the question is different context: ; ;; ' Y a,,..> . '' he ro er course is to recognize that=a tion has nothing to say.,T ,w,� y .1sed;_what power'does"a'State':have'to Lq7 P P - ;i 7.. re late public`morals: •what motivates state I:egislature can do whatever it sees . z ' �, ' Y �sthese `.`busybodies"?` 'Perhaps we 'should ~fit to do unless it is restrained by some :, ; ctob of tampes in on ude s'E , `j)e-gain-where}Judge Posner;left'`off '"'the 'I,`express prohibition in the Constitution'of . ject of stamping out nude a ,'� -;;-+eg , o.i .,, is uixotic. The ower �1,:"-�w,.'. - 1 power,of•government is'relative'to'the:de- ' ``the'United States or of the State,"and r q P � ' ' sires and values'of its people. Concurring . that-Courts:should be careful-not to:eir'- relative to the desires and ""As t ,.• - '..-;'." -:11-'" tend such prohibitions beyond their obvi- �,�5 2 op. at 1104. ..- r1 le.' The.State of`Ind)ana .`. ', `a':.s°P.:r... ' •�:., • ` '' = ous'meaning by reading'into them'con- { � --Even when. First -Amendment interests rotic'edge off Amertcan•M1,, y • f S7 =`: Y ceptions of public policy that the particu= are resent the Su reme Court alwa s:has P hat it is even trying to bedo- eco 'ized"the• a thori ,'of the state'to 1'ar'Court may happen"to entertain: >e s: • )p: at 1104. It should be ' ) • a.. . • ._ .,�'"'legislate'in•'the interest of protecting•coin- 413 U.S. at 61,n. 11,93 S.Ct.at 2637.,'n • :`11, elected representatives `: ., ,, „ : " *` Triunity morals. :And . as the mode'of ex- '-'-quoting Tyson'& Brother v. -Banton; '273 . Indiana are much better ;;;,-.1;; 14 '':, ' ' pression moves from the printed'page' to U.S. 418;47'S.Ct..426, 71 L.Ed. 718 (1927) ;D.Mass.1988) (women who; ,z,..-, . ' - .:-th publicY g ;: il�:nis-:,e ;... . a commission of .acts- that�:ma ,(Holmes, J.,'.dissentin . :. • political protest of alleged ` '' L:- . �. --- themselves.violate Valid.penal statutes;`the 'Even if`interest in public morality=con • - and exploitation of women , • •,,,,-....,-... , .. 0. _:° - - • gii -- ... g tern for the moral welfare of dancers'and first Amendment); Chapin v , r scope of permissible state•re lations si - • 'on,457 F.Supp.1170(E.D N r ' - . •:i ificantly.increases.",--:California .u,.La- patrons-were' the".only 'reason`-for; this Amendment protection for°r. x s,` Ut , ,�.``f,. �, _ Rue,409 U.S. 109,117,93 S.Ct.390,396;34 -statute to be applied to nude dancing,.ghat • ho sought to communicate h ,,_ . "L.Ed.2d 342 (1972). - would be sufficient 3 .• Certainly' legisla- , Severson, 408 N.W.2d 195 - .., '" ':. =c•: _• , owner of adult bookstore fea ,.„ _:-;t,an Chaplinsky:v. New Hampsh2xe,_315 -�tures and,prosecutors are entitled torcon tiro :� ,COB.,...., not entitled to injlnction ;�; ;,j., x , ,U.S. 568,,572, 62 S.Ct. 766, 769, 86 L.Ed. -sider the'effect viewingstriptease dances '' Minneapolis from enforcing ; 5; , :14; ;. • • - . • t ordinance against dancers ;, `` 3. We agree with and join Judge Easterbrook's statute to nude dancing, and that application , )y "suggested an attempt to K'', ,' ''J,',, ,.•discussion-of the majority's attempt to portray bothers the majority,,we shall examine.reasons . dancing); State v. Turner, ;`.,;t ', s•, Minn.,= ' `�.�86 k, -.cthis statute as one aimed.at nude dancing,rath- - states and subdivisions of states desire to;regu. (nude, sun= ry` ,• ''fi ;�1 �;I:er than as a content-neutral public-.nudity stat- late or prohibit nude entertainment..We,do this .. a"'<f i` , ~' ute. Nevertheless,because Indiana applies this to emphasize .that-even.if this statute.,were �; kxr 4 3 1 • } • R' 14 • i, a s i fat' '{6 1134 904 FEDERAL.REPORTER; 2d SERIES • might have on the moral.behavior of pa- tourers-engaged in public masturbation` L . + '.: trons,4 including the potential for lama - on;:-,,,,to„,, g and customers rolled currency'eithel dl i §l t 'r !I • ink marriages and breaking up families.by . • rectly into the vagina of a female enter-'''' • ., , .j.• fueling the desire for adultery. In Bowers tainer, or on the bar,in•order that she 1' w v. Hardwick, 478 U.S. 186, 196, 106•S.Ct. `1 A ; t} i _ f 2841, 2846, 92 L.Ed:2d•140(1986), the plain- might pick it up hersel£�--Numerous otlre. �, tiff challenged Georgia's prohibition of sod- , er forms'of contact between the mouths r ' j omy in part because there.was no basis for • of male customers and the vaginal areas",F` the law of female performers-were reported to �`' ` have-occurred. i. m , (, • other than the presumed belief of a"ma- t, el ,t .^ jority•of the electorate in•Georgia::that Prostitution occurred in and around i h , homosexual sodomy is immoral and:unac- such licensed premises, and involved" � i •, F ; 9, • ceptable. This is said to be an•inade some of the female dancers. Indec•ent w -y ll ' ;'' 't IT quate rationale to support the law. The exposure to young girls, attempted'rape,, �, f. law, however, is constantly based on no- rape itself, and assaults on police officers '• Y , `',� 0, • , tions of•morality, and if all laws•repre took place•on or immediately adjacent to , .• _ ria senting essentially.moral choices are to such premises. ` ' .y � . be invalidated under the Due Process 409 U.S. at 111, 93 S.Ct. at 393. Although ,x., < 145141. Clause, the courts will be very busy: ', deed. • • ,in.. Indiana does not compile a legislative histto ' ..• ry, it is entitled to rely on the-experiences - C. ' 1 • But there is more here`•than a concern of.other communities that have dealt:with , � .,, for the morals of patrons who merely view the problems associated with nude dancin ,1� nude dancing.' In California v. 'LaRue, See Renton v. Playtime Theatres, Inc.,-4 5 > r x :a , ;: 409,U.S. 109, 93 S.Ct. 390, 34.L:Ed2d 342 .U.S. 41, 50-52, 106 S.Ct. '925, 930-931, 89 `„� � " } (1972), the Supreme Court upheld d on.ibi- L.Ed.2d 29 (1986) (city of Renton was entl , , =�, ; , � }, tion on nude dancing : , the w�* A s, in bars based on.the tied • to .consider the evidence from other regulatory powers granted states by�'the .communities of the harmful effects of'ses=' ';;'*`",'- = twenty-first Amendment-s Here in.Miller, uall oriented businesses,when enacting it`s " ,:the district court reviewed:a. videotape;of .own zoning ordinance).` Most communities ,'�_ ' Darlene Miller dancing'nude—no custom- ;.and states•that enact.nude dancing tf, a� f )- ��ers were"present, no one was regiila��� being;`.`enter- tions.report••problems similar,'to those der . 1i ' ii 1 1 7ifig'; tained.',:LaRue takes us out of the ali- scribed in California v •LaRue,:alongwith It L , k stract and into the:real world where.•valid other' problems such ,as 'nei ghborhood :^ ' t{ - -1 F ..reasons.for restricting certain.conduct-be blighting and decreased property •values tt + t come obvious: Chief.Justice Rehnquist,de- See AttorneyGeneral s..Commzssion.on -�? - . scribed in rather graphic � • . ', - 1 ,E _ _- , gra hic fashionthe state-s -==Pornography'Final--Report,-Vol:''I:, at.',. l : its , reason •for prohibiting nude dancing in ,385-389 (1986) (discussingthe ` "' r bars: ' . pioblemsas r; r r ;- , sociated-with sexually oriented businesses, ±4r Customers were found...engaging.m oral including .bars with live nude dancing aft .ii 1' fit.." => .copulation-.with women,entertaine'rs, •cus- Judge,Posner wonders whether the bar at• " {' aimed specifically at nude'dancing, the tale'§ sumers of pornography,along with the.connec-„ ;- •,...,. b, valid interest in reservin li preserving public morality,justi- tion between. orno a h .., II r !�;�- :. •? .: fies the statute. �•-- - — P gr p y,prostitution,.and es-y Ff ,., 1.14 k .-..,,,, tablishments offering nude dancing). a•.--`, Y 1, 4. The majori•ty notes that"[d]ance also has bibli- ��R art r f, ' 1 _ cal roots.",,Majority op. at 1085. While the 6• This court's opinion should be unanimous`at l "is 'biblical dancing cited was. clearly'not''of-the least with respect to apt!:llatit 14fillei' ''. ' �''. at J.R.'s Kitt s dancing ,,. q. t nude variety,we should.point.out that the Bible y Kat Loge. •The mea orit ac 1 condemned_as immoral the.behavior Indiana knowledges that the Indiana statute is�not over-,.,,- 7' ' z sought to limit here: See "Matthew 5:27-28. "_broad; this 'case only •involves the'specific't,+, t °} 'H ts{ Fon unately we need only interpret the Constitu- dances of each 'appellant. Indiana"without s., question can ban nude dancing in establish " ri` '' '-:ments that serve alcohol.. Majority op.at.1083 o,, D. t 5. See generally Attorney'General's Commission - Therefore,this.statute.as applied to ban Millers ,_ �k i•, `-••on Pornography Final Rep.ort,Vol:I,at 767-1036 dancing in a bar that sells alcohol is not uncon- " �'` r t c ' (1986) (discussing the'impact of'public sexual stitutional. See dissenting opinion of Jude;.,` `" ;' > x) r' ' 'behavior on pornographic-"models'.and con- Coffey:at 1115, n. 8.. g ' :i t tea:, , >* ffi ,¢;+t t w ix ,dq,Y r nrE e, n�?..xi,T•r y_s..._ .'1, • :, •} r a 1 •' .' '` '• TATALOVICH.v:-CITY`OF.SUPERIOR 1135 . �� " F i- Cite as 904 F.2d 1135 (7th Cir. 1990) iC in public masturbation .r r• %: . '.4:''- issue .in. this case is.in South Bend's red wold v. Connecticut, 381 U.S: 479, 481-82, • :' flied currency either:di�" a :4)..,�1 light district,and whether South Bend even 85 S.Ct. 1678,.•1679-80, 14 L-Ed-2d 510 i .gina of a female enter- ,ti ^ '• • ` --'''`; has a red light district. Concurring op. at (1965). • bar in-order that.she Y• '-'` ,_,, 1 +`° • e'•: 100. The answer to both questions seems To summarize, the majority's decision is Herself. Numerous'oth- •`'a t��.-, •���'`' � not compelled by any holding or--dicta of 3_ ���. to-:be yes, but the record is not conclusive. ct between the mouths h +'` ' The record does:indicate that several estab- the Supreme Court. Neither is it corn- g publicpelled_by any reasonable irate retation of s and the vaginal areas ",.. ' ' lishments that challenged the nudity rp . f'.�;.,.-• on the First Amendment. Indiana's prohibi- ;.; Hers were reported to :;ti. , ,` } 7:: statute are clustered in the same,area er �� 7 ., South Michigan Street. A cursory finger- tion of public nudity can apply to nude ! .,' ; ` walk through the Yellow Pages (not in the dancing that contains no expressive activi- ••-I;',;€s Burred in and around :T.;.; ,,. ;.F f -emises, and involved „ r. record) .would probablydisclose similar The district court found and counsel" r `µ . �, g "t ,r ty: f '' rya ale dancers. Indecent ``•. Places alon with adult bookstores and for plaintiffs admitted that the dancing at ` a '., .'^ video parlors. Perhaps a more detailed - .;N:,:., issue does not express anything. Even if , girls, attempted rape, +I.'Ik vaults on police officers i ;. record (such as contained in LaRue or the nude dancing is considered inherently ex- ' ,i;.i, r ; ,; � Attorney General's report) would empha- pressive, Indiana may regulate the nude { nmediately adjacent to , ' �`:t -/size to us what the local people already ▪ `' know.• But it should not matter. South conduct through its content-neutral statute, '4;;1 i 1:.f �'' f.-' ,*•4= because the governmental interest in pre- ,�, i.Ct. at 393. Although • "�': i. ,Bend's experience cannot be unique; :.the indecencyimmorality " ,{ ventingpublic and Tile a legislative - 4e '''° .'sheer -volume of• legislation in this fieldi . ely on the-experiences ,-.. ,,'. .`.'''f :.'makes that clear-' • Indiana's decision•to substantially outweighs whatever limited ( 1:; i,:: r . . First Amendment rights are implicated by .a.�, s that have dealt'with r; ` , • ,„ use its public nudity statute to prohibit 'll,`� tad with nude dancing yy '4 '�" public nude dancing in bars is justified. a simple striptease performed for money.•in • u, me Theatres Inc.,,'475 •' The state has made a moral ud ment bars. The judgment of the district court „4,��rx wow• • j g 1E„3 . c should be •affirmed. t S.Ct :Q? , 930-931, '8�9 •„ x',r about.public nudity, and consistent with 'L'" 'VT :y o ,ton was'ehtl - t' f "that'decision seeks to apply that judgment • e e l� ,i REY NUMBER SYSTEM E{q th 1 a The state has also ig' ev_'�,,::i:! from otfier':j�; , �, :'='�o'public nude'dancing:- _ ,.. -. ._ T _ _i� try ��� .armful effects of sex ''� • " `"made'moral judgments'about bullfighting, . .. . - _ •i ,,o ' jl'1 .= sses when enacting:its ,, , ., ' `dogfighting, gambling and any number of : -... s Most communities ", f t 'other activities that probably involve`some - le Lenore A.TATALOVICH, �'� is • ) ; ti res- _ ' ,�qE , nude,dancing regula , - , nception`of en e t es aret d rotected '`''Plaintiff-Appellant; ' n G 7y� s similar'to'those de- , �f f r,_•..t1on. If all of thesP = ;j v. TE?iY u•LaRue,;along;with,,f ,;"-_` x 'to':a'limited extent by the'First'Amend- ,_;,: -,,,;.; . ;, :i. :h as neighborhood ' - , nnent,8. this court's' only'justification':for The CITY OF SUPERIOR,a municipal - li i ;: .sed property values ,•i .-, , . suppressing one•and allowing the'others corporation under the laws of the State l'''',:al's Commission.'on ` • �'. ,. ust be .that -we=-agree -with_.the_state's of.Wisconsin,.and Employers Insurance _ ' Report, 'Vol. I:,``at = • "'.,. decision to ban bullfighting, dogfighting t of Wausau, a Mutual Company,Deferi- i� "' :and (some) gambling, but.cannot under- `.dBnts-Appellees. N;ti;;. j•i § sing the problems as J . "'� ` -stand.why the state would want to prevent No. 89-1510. Y�nc_ 15' i oriented busine"sses, ••,. _ -•- "1 live nude dancin ,,:•,.:_;.':nude.dancing. •Nude dancing is:.not:pro- - • • t' ' 4°`-'. ''"`'`'`` -tectedby a stated constitutional provision United States Court of Appeals, 1i'si s whether the ba'r at 5` Seventh Circuit. i}i. r' - -• ' ,a ?' that a majority of people have subverted-at .�.. .. .. e along with the connec=`� '`}'' "'.the:_expense of a minority, requirin goad Oct: 24, 1989. M.. �' � rig, the 'r'-•: Op S shy,prostitution,And es- '' x� • petitionedDecided June 7, 1990. :•'':, itf:ti court to intervene. Rather, this .. rude dancing). y ,`` w-Tra - • �r is,a valid law which fulfills a perceived . should be unanimous at f. z . need. Determining 'the wisdom, need, or 104 mpellant Millers dancing ,:;,-. • r, ,,,, ,; r0 rie of laws'is the role of an elected Plaintiff brought ,negligence case Inge. The majorityer le p a against city and its insurer alleging act% -n . • - a• '• Ie lature not the federal judiciary,. Gras- g _ _ 4 , ihiti liana statute is not over- ,. •' .,,_. •-; ' • :� . 2 io r involves the specific :--;x,:,.• g 0 : ;J•..,t; 7: Indeed, this court need only examine its own . 8. Judge Posner .admits. that .btillfi tin t••'al- lant. Indiana without ';y; ::' prior decisions to discover connections between though completely banned in every state, is as ,1?'. e dancing in establish- _ .''much"ex ressive entertainment"as nude daitc- i ; 1- Majority op.at•1083.:,; µ,•. ,� --nude dancing establishments and crime, espe- p a ., , '' cially prostitution:' See United States v.Marren, ing'. "Bullfighting is forbidden not because-it is iiiii5.--,-' s all ban Miller's . •;':; ,- '890 F.2d.924 (7th Cir,1989); UnitedStates v '_'not expressive,.but because in American society Rs alr is not uncori- ' its harmful consequences are thought to out- x Doerr,886 F.2d 944(7th Cir.1989); 9�nited States weigh its expressive value.".Concurring_op:at , ting �n of Judge --=r.'"'t, -:v.•Muskovsky, 863 F.2d 1319 (7th Cir.1988). i " ^a; ' .,;: .1097. ;;'' r ...�F',•f, sue+, l 'P 4.-r.• :• ---. _.._M.,.,-•,..,..f.. . . l_ 584 SEATTLE v. BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v. BUCHANAN 585 90 Wn.2d 584,584 P.2d 918 90 Wn.2d 584,584 P.2d 918 because they are in fact inimical to the welfare of the peo- { the procreative function without offending the equal protection ple of this state, I would reverse the court below and dis- clauses of the state and federal constitutions. miss the action. [6] Statutes — Validity — Criminal Statute — Hypothetical Situation. The hypothesizing of an exceptional situation wherein HAMILTON and HICKS, JJ., concur with ROSELLINI, J. a challenged criminal statute might be of doubtful application does not render the statute vague or affect the validity of the statute when the general area of proscribed conduct is certain. ,r C [7] Constitutional Law — Freedom of Speech — Nudity — i - . Restrictions — Validity. Regulation of nudity or semi-nudity, j ii even when such exposure is done as an incident to protected free speech, is permissible when reasonable allowance is made for pro- [No. 44199. En Banc. September 28, 1978.] tected expression and exposure under specified conditions. THE CITY OF SEATTLE, Respondent, V. KELLY ANN [8] Constitutional Law — Freedom of Speech — Conduct — ry ' BUCHANAN, ET AL, Appellants. Regulation. The prohibition of certain conduct may be permissi- pp ble although such conduct, in a particular context, may be so con- [1] Civil Rights — Sex Discrimination — Police Power — nected with the expression of ideas as to constitute protected free Legislation. Enactments under the police power may discrimi- speech. nate on the basis of sex when such discrimination is based on [9] Criminal Law — Statutes — Construction — Meaning of actual differences between the sexes and when the control of acts Words — Statutory Definition. The legislature, in enacting a which are based on such differences is reasonably related to the statute, may define a term and, in so doing, give it a broader preservation of public peace, order, and morals. meaning that applied to it or that found in the [2] Statutes — Validity — Wisdom — In General. The courts common law. than If the termordinar definesily a criminal offense,such definition are not permitted to address the wisdom or necessity of statutes. also supersedes any common-law definition. [3] Statutes — Validity — Public Policy — Changes. There is [10] Constitutional Law — Due Process — Proscribed Con- no requirement that legislation be altered to reflect changes in duct — Statutory Definition. Due process requirements for social standards. criminal enactments are satisfied when specific proscribed conduct [4] Civil Rights — Sex Discrimination — Exposure of Pro- is described with sufficient clarity to give fair warning of what activity is forbidden within the context of a statutorily defined creative Organs — Equal Rights Amendment. Enactments crime and such activity is logically and reasonably categorized which require that both sexes cover those parts of their bodies within the definition. which are intimately associated with the procreative function do not offend the equal rights amendment (Const. art. 31 (amend- [11] Criminal Law — Crimes — Descriptive Terms — Valid- 1, ment 61)) although the organs required to be covered are different ity. A criminal statute is not invalidated by the fact that in defin- q. for each sex. Requiring that female breasts be covered while not ing an offense the legislature has used a term which is frequently I it' requiring the covering of male breasts is a distinction reasonably used to describe more serious and antisocial conduct. related to the preservation of public order and decency and does WRIGHT, C.J., and HICKS, J., concur by separate opinion; UTTER, HoRo- Pi not affect the substantial rights of females. I Es WITZ, BRACHTENBACH, and DOLLIVER,JJ.,dissent by separate opinions. [5] Constitutional Law — Equal Protection — Exposure of ;• ' Procreative Organs — Female Breasts. The sexual connote- Nature of Action: Five women were prosecuted for tions associated with female breasts are related to public decency sunbathing and swimming in public with their breasts and order and permit the legislature to require that female breasts exposed in violation of a city ordinance restricting such be covered as well as other male and female organs associated with exposure. , i i.. i. 586 SEATTLE v.BUCHANAN Sept. 1978 ' vSept.1978 SEATTLE v.BUCHANAN b87 i '" 90 Wn.2d 584,684 P.2d 918 v.<< 90 Wn.2d 684,684 P.2d 918 II.i ::: -', s:°' Superior Court: Upon appeal of their municipal court responsibility under the law shall not be denied.or abridged ,convictions, the Superior Court for King County, No. on account or sex." • , :,k ' i'' • . . .. ,.r . '; . , • :� '73488, W. R. Cole, J., on.April 2, 1976, entered judgments Thus far, we I have had only one occasion to examine this provision.' In Darrin u. Gould, 85 Wn.2d 859, 540 P.2d 882 against all of the defendants. '', 1`; two"young women challenged "a;refusal to allow ' .,,,,,.Supreme Court: Holding that constitutional protec- `,- I ' Lions were not offended by distinguishing between male and them` to play football"on .the'high school team, which refusal'was grounded upon a rule promulgated by a state- ix female breasts, or by the terms of the ordinance the court h affirms the judgments. wide association' of secondary schools. The plaintiffs''evi- - - !dence showed that the young, women"were' physically 11 ri John R. Muenster and Sarah Lytle of Seattle—King s capable of playingson the team; met the team requirements, ii ;'t.i: :County Public Defender and Dan Wershow, for appellants. '. and had the permission'of the school district. Against the 11 j; John P. Harris, Corporation Counsel, and Richard S. .argument that the rule was. justified because most girls are Ei i Oettinger, Assistant, for respondent. •,, . incapable' of meeting such requirements,'this court,'held Crj that it was unconstitutional as applied to the plaintiffs. The -'"'ROSELLINI,' J.—The five ' appellants "'`were convicted in r giseor the holdingaof the''case was 'that eligibility must be Municipal Court of violations of Seattle ordinance No. ' determined'on.;individualized characteristics, at'least where '102843, section 12A.12.150, defining as "lewd conduct" and . equal'access to sports'programs is not made available to making unlawful the public exposure of one's genitals or 'c both sexes, andiin the absence of a showing that the rule in female breasts. They were each fined $100. The unchal- ' - question serves!a rational purpose based upon actual'dif- 1{ lenged findings show that the appellants were arrested in ferences which are present in every member of the particu- , '; the Seattle Arboretum, where they were swimming and �� ' ' ' I lar sex. - �� . � ,. .sunbathing with their breasts completely exposed. Two of T ' : [1] 'The appellants do not deny the right of a municipal ,, them stood and tossed a "Frisbee" at some time during the' ' legislative body,to enact laws for the protection of the pub- period of exposure. The ap pellants were not engaged in any lic peace; order and morals. They concede that a legislative , expressive or communicative activity. According to the evi- body may enact laws which apply only to the members of i. dence introduced on appealone sex, provided that theyare'based on actual differences �; to the Superior Court, the , arrests had been made in response to several citizen between the sexes. They give' as an example the role of ;, complaints. `-'`' childbearing, and state that the legislature could constitu- a, :Rejecting contentions that the ordinance in question vio- tionally pay a bonus to a woman who, during a given period lates. Const. art. 31 (amendment 61) (the equal rights ' of time, gave birth to (or refrained from giving birth to) a ;' amendment), as well as federal and state due process, equal child. However,!they contend that a law which provided a ' protection, and freedom of expression and speech provi- bonus to women for childrearing, and did not provide it to sions, the Superior Court affirmed the convictions. These `'`- 1 contentions are renewed on this appeal. 'The provision hag been considered by the Court of Appeals in the following „ ° ; cases,none of which was concerned with an issue similar to that presented in this '' Const. art. 31, 1, provides: "Equality of rights and : ' § p q Y g , :: case:In re Hauser,lb;Wn.App.231,548 P.2d 333(1976).(Division One);Smith v. ajj; Smith,13 Wn.App.381,534 P.2d 1033(1975) (Division One);Singer v.Hare 11 1 :,;,Y,;:: •Wn.App.,247,,522 P.2d 1187(1974).(Division One). i `'1: 1.:'W all.? ` �, ' ` ' SEATTLE v.BUCHANAN Sept.1978 Sept.1978_ SEATTLE v,;BUCHANAN 589 -s•,, 588 90 Wn;2d b84,b84 P.2d 918 • 90 Wn.2d 684,584 P.2d 918 • s.;, lien, would be invalid,` because men are equally capable of manifest from:a reading of the section,as a:whole3 that the `:.. ;. -,• feeding." Ili rearing children "beyond the short period of breast- City_ Council was 'concerned with those -:body parts ,and g functions,which, according, to society's .common sense of ,' Their. contention here is that there is no difference in decency, should be kept private. These include the elimina- ``.' : • appearance between the breasts of men and women suffi- , tive functions and the procreative functions. With'respect J : cient to justify a law forbidding the exposure of the breasts : ' to the latter,' it was found:to be in the public interest to {l of one and not the other, their assumption being that it is order concealed, in addition to the genitals, the female ', ,only the size or shape of women's breasts which inspired breasts, which, unlike male. breasts, constitute an erogenous the ordinance in question. Zone,.and are 'commonly associated with•• sexual arousal.4 •At the trial, the appellants offered testimony of a physi- The lawmakers no.doubt'took account of the fact that the cian, Dr. Charles Cowan, who said that there is no differ- breasts can be kept covered in public without inconve- ,4 ence in the composition of the flesh of male and female nience, since they perform no function which 1 necessitates "- •breasts; that the breasts do not form a primary sex charac- exposed �j • •teristic but a secondary one, and that the degree of devel- their being to public view.3"Section 12A.12.1b0 LEWD CONDUCT fj 1r�r opment of the breasts does not'determine sex. He said, in " (1) As used in:this section a lewd act'is: clarification of this latter testimony, that some men have "(a) an exposure of one's genitals or female breasts; - breasts as large as those of some small—breasted women '= "(b) the• touching, caressing or fondling of the genitals or female 1T breasts;or . • The doctor was notasked and did not say whether there • 1 . "(c) sexual intercourse as defined in Section 12A.04.140(1)(c);or. is any difference .in function between the male and female (d) masturbation;or . ,: , breasts; and we see that the appellants agree that there is • . °(e),urination or defecation in.a place other than a washroom or toilet F,`,- - room ' `-:` ' , ' such a difference. They give it no weight, however, evi- �<..,,>,,' "(2) A person is guilty of lewd conduct if he intentionally performs any lewd dently because, as they view the legislative intent, furiCtlOri act in a public place:or at a place4md under circumstances where such act could is not an element which the legislative body had in mind - be observed by any member of the public. ' II when it forbade the public exposure of female breasts. "(a) 'Public place'has the meaning defined in section 12A.12.020(1)(a). "(3) The owner,manager or operator of premises open to the public wherein i' We are unable to agree that the legislative body could alcoholic beverages are sold,served or consumed is guilty of permitting lewd con li - ;.; s• , ' '':only have been interested in the size or shape of female duct ir he intentionally permits or causes any lewd act on said premises. breasts when it included them among the parts of the "(4)' This section shall not be applied to artistic or dramatic performances in I i I I1 a theatre or a museum." Seattle ordinance No.102843. - human body which should not be exposed in public. It is 1 4To illustrate the viability of the association of female breasts with sexual arousal;'despite changing tastes and mores,we note the following which appeared - Dr. Cowan's testimony is fortified in the appellants' brief by a letter ap- in the Seattle-Poet Intelligencer, August 9, 1977, § B, at 1, written by Emmett 'l4 ' 'pended thereto from another physician, Dr. Bruce Steir, which the respondent • Watson: justifiably asks us to strike.The letter adds nothing of substance to the testimony The Big eyeballing attraction during the hydro races—which even diverted. of Dr.Cowan,the correctness of which we have no reason to doubt.We note with some attention'from the Blue Angels—was a dinghy carrying four topless interest that Dr. Steir, in elaborating upon the phenomena that the breasts of girls—propelled mostly,it seemed,by the hot breath of male onlookers: some men develop to a size at which they are comparable to those of women with and from Seattle-Post Intelligencer, §B,at b: small breasts,explains that such development is usually the result of some endoc- An thelSeat e-P st Inordi ells requirescer,August shops 10,1977,draw their blinds when the �� sine or other disorder.Since the doctors'evidence tells only part of the story,and cloth[e]s lao female window dummies are being changed. Understand it was 'v a part which we do not find determinative of the issue before us, we need not passed as a result of a few traffic accidents. consider the legal impact of a similarity which results only from some physical malfunction in one of the sexes. 590 SEATTLE v. BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v.BUCHANAN 591 90 Wn.2d 684,584 P.2d 918 90 Wn.2d 584,584 P.2d 918 When the legislative intent is viewed in light of the obvi-g gwomen, to enact laws which tend to preserve the public ; I� ous purpose of the ordinance—to protect the public morals ; If, peace and decorum (without at the same time interfering ; 1i and its concern for the privacy of intimate functions— with the exercise of protected liberties) would be seriously common knowledge tells us,;as it undoubtedly told the trial curtailed were we to hold that the equal rights amendment judge, that there is a real difference between the sexes with forbids laws such as the ordinance we have before us. To do respect to breasts, which is reasonably related to the pres- e. ervation of public decorum and morals. Governmental bod- so would lend validity to the objections voiced by oppo- nents of the amendment, and weaken public confidence in ies have a right to enact laws to maintain a decent society. its beneficence. Paris Adult Theatre I v. Slaton, 413 U.S. 49, 37 L. Ed. 2d [4] The leading law review article pertaining to the pro- 446, 93 S. Ct. 2628 (1973); Seattle v. Marshall, 83 Wn.2d posed federal amendment recognizes that it is not intended 665, 670, 521 P.2d 693 (1974). or designed to strike down laws which are based upon [2] We are told that concepts of morality and propriety actual differences in the sexes. See Brown, Emerson, Falk are changing, and that public exposure of the female & Freedman, The Equal Rights Amendment: A Constitu- breasts is becoming increasingly less offensive. This may be tional Basis for Equal Rights for Women, 80 Yale L.J. 871, the case, even though we are given no evidence to support 893 (1971). Records of the United States House of Repre- k the assertion, and it is obvious that in this instance, some k persons were offended. If it is true, then it can reasonably . sentatives and the Washington State' Senate reveal the same understanding. See House of Representatives Report be expected that public demand will soon make it impera- No. 92-359, 92nd Cong., 1st Sess. (1971), and Senate Jour- tive 4, tive that this portion of the ordinance be repealed. Suffice nal, 42d Legislature (1972), at 345-46. The Yale Law it to say that the argument attacks the wisdom and neces- Review writers also make clear their understanding that the sity of the ordinance, matters which the courts lack the provision is designed to protect the substantial rights of constitutional authority to decide. women. We share that understanding of its purpose and see [3] The Supreme Court of the United States in no good reason to subvert it by using article 31 as a vehicle Goesaert v. Cleary, 335 U.S. 464, 466, 93 L. Ed. 163, 69 S. to thwart the public will on matters which the people deem Ct. 198 (1948), said: to be in their best interest and which require only inconse- ,; The Constitution does not require legislatures to reflect quential sacrifices from the individual, where there is an sociological insight, or shifting social standards, any more actual,difference between the sexes, to which the law rea- than it requires them to keep abreast of the latest scien- tific standards. sonably relates. We cannot perceive that the privilege sought here is one There being such a difference between the breasts of males and females (however undiscernible to the naked eye is which involves any serious interest of the appellants. It of some), and that difference having a reasonable relation- , does not fall within their rights of expression, religion, petition, political action, or association, or their right to ship to the legitimate legislative purpose which it serves, E the ordinance does not deny equality of rights or impose privacy, or within any marital, familial, educational (as in ( Darrin v. Gould, supra), occupational, property, economic unequal responsibilities on women. It applies alike to men i and women, requiring both to cover those parts of their E. or social interest of theirs. It is not shown that the right is bodies which are intimately associated with the procreationli` one which women generally demand or even wish to.enjoy. 'k On the other hand, the right of the public, including function. We find that the ordinance in question does not Ir violate Const. art. 31. C . A 592 SEATTLE v. BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v. BUCHANAN 90 Wn.2d 584,584 P.2d 918 593 90 Wn.2d 584;584 P.2d 918 The theory is advanced that this ordinance denies the L�`:,;r .v, c x, cited in support of this theory. In Cleveland Bd. of Educ. v. equal protection of the laws to the appellants. We have ��� LaFleur and Cohen v. Chesterfield County School Bd., 414 already shown that the law does not classify or discriminate ,�U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974), the United "' on the basis of sex. States Supreme Court struck down school board regulations In Hanson v. Hutt, 83 Wn.2d 195, 517 13.2d 599 (1973), which dictated mandatory maternity leave several months we held that a statute which denied unemployment benefits ,:« before the end of a teacher's pregnancy. Citing its prece- to pregnant women constituted a discriminatory classifica- dents which had held that freedom of personal choice in tion based on sex and not on actual difference between the matters of marriage and family life is one of the liberties sexes. We found the classification to be suspect and there- protected by the due process clause of the Fourteenth I '` fore subject to the strict scrutiny test. Applying that test, Amendment, the court found that the rule, which was we found that the purpose of the law in question—which applied regardless of an individual teacher's physical ability was to provide benefits only to those able and willing to to continue teaching after the termination date, unneces- work—did not require denial of benefits to pregnant sarily dampened the exercise of that liberty by discouraging women, since pregnant women are generally not disabled. decisions to bear children. Since no compelling state interest was served by this classi- In Gooding v. Wilson, 405 U.S. 518, 31 L. Ed. 2d 408, 92 fication, it was invalid under the equal protection clauses of S. Ct. 1103 (1972), the remaining case relied upon, a statute it the federal and state constitutions. forbidding certain kinds of speech described therein, was [5] That decision was based on the finding that the sex- struck down because it could be applied to constitutionally ual difference involved (the ability to become pregnant) protected speech. The defendant was allowed to challenge bore no substantial relationship to the state interest to be the constitutionality of the statute, even though his own served (the denial of unemployment benefits to persons ,.. speech was characterized as "fighting words," for which he unable to work). Here, the sexual differences (the sexual could not claim First and Fourteenth Amendment protec- arousal commonly associated with the female—but not the tion. male—breasts) bear a direct relationship to the legislative It will be seen that the first of these cases involved the purpose—the preservation of public decency and order. plaintiffs' personal choice in familymatters, a Furthermore, unlike the statute involved in Hanson V. protectedga : , liberty. The second was concerned with a law regulating ';�_= Hutt, supra, the ordinance here does not prevent exposure speech, likewise a protected liberty. by one sex only. It is true that it requires the draping of No protected liberty or right of the appellants is asserted more parts of the female body than of the male, but only in this case, and the law does not purport to regulate such a because there are more parts of the female body intimately liberty or right. The trial court's finding that the appellants associated with the procreative function. The fact that the were not engaged in any expressive or communicative ordinance takes account of this fact does not render it dis- activity has not been questioned. They were admittedly criminatory. The slight difference in clothing requirements sunbathing and swimming in a public park. The right to imposed upon the two,sexes is necessary if the legislative expose the body to the sun in public has not yet been rec- purpose is to be served. ognized as a right so fundamental that the people must It is next suggested that the ordinance offends the due have meant to protect it when they adopted their constitu- �' process clause of the fourteenth amendment to the United -,'1 tions. The legislative body took care to exempt from its States Constitution because it is overbroad. Two cases are provisions those artistic and theatrical performances which II ' 594 SEATTLE v.BUCHANAN Sept. 1978 , Sept.1978; SEATTLE v:BUCHANAN- 595 90 Wn.2d 584,584 P.2d 918 i 90 Wn.2d 584,584 P.2d 918 i,4-.i 1 : P might conceivably involve the exercise of constitutional' freedoms. Pursuing their, theory of•overbreadth further, the appel= s ° lants urge that this ordinance could be .applied to deny i -r.'-. , [6] The appellants propose five hypothetical,situations, • ,•;:;(rf constitutionally protected liberties. They hypothesize a sit- , in some of which the ordinance might be of doubtful j,; uation in which female breasts are exposed in some kind of application It is not claimed that any of these involves theatrical production in the•arboretum, and declare'that ` V. the exercise of a constitutional right. A criminal law is•not ;;', .. the ordinance is so broad that such exposure would be for- rendered unconstitutional by the fact that its application '-6V. bidden.'In"such a situation, they say, the ordinance would may be uncertain in exceptional cases, as long as the gen- infringe upon a constitutionally protected right of free :' eral area of conduct against which it is directed is made . -;;;, , expression, and 'because that possibility exists, it must be plain. Hygrade Provision Co., Inca v. Sherman, 266 U.S. struck down. .. 497, 69 L. Ed. 402, 45 S. Ct. 141 (1925); 21 Am. Jur. 2d �:. There'is cited' no authority to support the appellants' a.r "•,:;f,. claim of a'ri ht-topresent a theatricalproduction in the 'Criminal Law § 17, at 100 (1965). -,�s g � � N ,, Should a court be called upon to apply the law in one of '' , arboretum. The;`'arboretum, which belongs in part 'to the . 1 the hypothesized situations, it would be guided by princi- t,. City of Seattle and in part to'the University of Washington, . ples of statutory construction which should enable it to :,` ', is maintained,by agreement between those two bodies as an correctly whether theparticular exposure falls :: i' . arboretum and c botanical" ardent to which' the decidepy g" public is '• within the prohibition of the ordinance. Two examples are: freely admitted.,for the purpose of enjoying the display of (1) Courts are obliged to read a statute in the "animating .;•.=, y trees and plants_ which are grown there.- By statute,.that • ; - context of well-defined usage". State v. Dixon, 78 Wn.2d ' - ? portion of the arboretum which belongs to the university is 796, 805, 479 P.2d 931 (1971), quoting from Beauharnais v. 1 to be used for•`arboretum and botanical garden- purposes ,r, 'Illinois, 343 U.S. 250, 253, 96 L. Ed. 919, 72 S. Ct. 725 ,' •:f: only. RCW 28B:20.350. If:there is any provision, by city ' r ,; (1952). (2) Criminal statutes should be strictly construed in ' t, ordinance,-regulation, agreement, or otherwise, which per- ' favor of the defendant. State v. Bell, 83 Wn.2d 383, 518 ;rt. ' mits the presentation of theatrical productions in this very P.2d 696 (1974). These two alone should resolve any ambi- i':' specialized'park,it has not been called-to our attention and .guity in the word "exposure" and "female breasts" should a , `44: • have been unable to uncover it. doubtful case arise. ' • The only other; public place suggested by the appellants ``` p;. - (not coming within the ordinary definition of a "theatre" or ;'. .5"(1)A woman publicly nurses her baby; ::; , museum ) in which they 'might have a right to expose ,= ^(2)A 10-year-old girl runs through the park wearing only cut-offs; :.,:-.4', their breasts in an expressive'or communicative perfor- "(3)A woman strolls in a supermarket wearing a very scant bikini, which does,however,cover her nipples; Frit. mance :is the public street.'The authority which they cite ° •, "(4)A woman goes to the theatre in a very fashionable dress which is con- .r„ ;k:', for the assertion of this right is Schacht u: United States, 3 structed of tranapeiant material in the bodice and cut in such a way that from a;,r! , 398 U.S.'58, 26 Li"Ed. 2d 44, 90 S. Ct. 1555 (1970). In that k:_ some angles one can see her breasts entirely;and Y'`''; g a;,, _. • case, the petitioner had worn parts of a United States mili- 1 ±" "(5)A woman removes her bathing suit on a public beach, waves at passing .lz , i ` - boats,slowly applies suntan lotion to the frontal portions of her body, and sun- r ;'` tary uniform while performing`in' a skit, featured in an bathes with her knees 12 to 18 inches apart.Held: No 'lewd conduct.' People v. :..; _ ', anti-war demonstration and designed to create in the audi- ' N.; Gilbert, 72 Misc. 2d 795, 339 N.Y.S.2d 743 (N.Y. City Crim:Ct. 1973)." Appel- ..„'4 ence an understanding of and opposition to United States ail lasts'brief,at 21. participation in the Vietnam war. The issue in,the case was i kl ;.,: » : Al r,4 , ,f. 1¢� • i 596 SEATTLE v.BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v.BUCHANAN { 90 Wn.2d 584,584 P.2d 918 597 90 Wn.2d 584,584 P.2d 918 whether the petitioner had violated a federal statute mak- ing it an offense to wear a military uniform without [7] Those cases in which the United States Supreme uthorit . The Su reme Court found that the skit in which Court has given its opinion upon the right to expose the a y p female breasts as an incident to the constitutionally pro the petitioner performed. Was a "theatrical production" tected expression of ideas have not gone so far as to coun- within the meaning of a statute which permitted the wear tenance the notion that such exposure may be made in any ing of the uniform in such productions if the portrayal did not discredit the armed forces. While the court took public place which a defendant chooses. Rather they have account of the fact that theatrical productions need not either expressly or tacitly acknowledged that such exposure is subject to reasonable regulation, even when it is done as always be performed in buildings or even on a defined area an incident to that expression which is protected by the such as a conventional stage, it did not have before it the First Amendment. question whether the demonstrators had a constitutional In California v. LaRue, 409 U.S. 109, 117-18, 34 L.. Ed. right to stage a theatrical production in the street. It was 2d 342, 93 S. Ct. 390 (1972), the United States Supreme not suggested in the case that the demonstration was Court sustained California liquor regulations which forbade unlawful or that the demonstrators did not have a right to explicitly sexual entertainment in places where intoxicating perform the skit as a part of it. beverages. were sold. Mr. Justice Rehnquist, speaking for • That case, turning as it does on a question of statutory the majority of the court, after recognizing the principle interpretation, hardly stands for the proposition that top- that an actor in a theatrical production is entitled to the less theatrical or terpsichorean performances can be pre- constitutional right of freedom of speech, said: sented in the street, as a matter of constitutional right. Not only_have the appellants failed to establish that they But as the mode of expression moves from the printed ___ _ P__ _ ____—___—__ page to the commission of public acts that may them- have a right to expose their ireire breasts in the arboretum or in selves violate valid penal statutes, the scope of permissi- the streets in a theatrical production, but they have offered ble state regulations significantly increases. States may no authority for the proposition that they have a right to sometimes proscribe expression that is directed to the ' accomplishment of an end that the State has declared to engage in such activities in public places other than those accom p be illegal when such expression consists, in part, of "con- expressly exempted under the act. The word "theatre" is duct" or "action," [citing cases]. In [United States v.] not one of narrow meaning. See Webster's Third Interna- O'Brien, supra [391 U.S. 367, 20 L. Ed. 2d 672, 88 S. Ct. tional Dictionary 2369 (1968); 4 Am. Jur. 2d Amusements 1673 (1968)], the Court suggested that the extent to and Exhibitions § 2 (1962). The encyclopedia states that which "conduct" was protected by the First Amendment the word, from the Greek, means literally "a place for see- depended on the presence of a "communicative element," .* and stated: ing." Theatres are of various kinds. There are playho"uses, "We cannot accept the view that an apparently lim opera houses, motion picture theatres, drive—in theatres, itless variety of conduct can be labeled 'speech' when- ballet theatres, and puppet theatres, and even open air ever the person engaging in the conduct intends theatres. We may take judicial notice that Seattle's Wood- thereby to express an idea." 391 U.S., at 376. land Park has such a theatre. Thus the ordinance makes This court applied this principle in Seattle v. Hinkley, 8 ample allowance for nude expression in appropriate places. Wn.2d 205, 517 P.2d 592 (1973), where we upheld an ordi1. - We are not shown that it was required to permit such nance regulating the dress of female employees in bars, in expression in its streets, parks, or other public places. the face of a contention that the ordinance curtailed th women's right of free speech. k E 598 SEATTLE v.BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v. BUCHANAN 599 90 Wn.2d 584,584 P.2d 918 F 90 Wn.2d 584,584 P.2d 918 ",The opinion in California v. LaRue, supra, was written • It is hardly conceivable that the court meant to suggest, by Mr. Justice Rehnquist. Dictum from that case was used in Doran v. Salem Inn, Inc., supra at 933, that such per- by the same justice in writing the opinion in a subsequent formances may be given as a matter of right in all of the case to support a conclusion that an ordinance prohibiting public places which the district court had noted were cov- any female from appearing in any public place with uncov- ered by the ordinance, in a paragraph quoted in the ered breasts was vulnerable to a claim of unconstitutional Supreme Court's opinion. The district court had said: overbreadth. Doran v. Salem Inn, Inc., 422 U.S. 922, 45 L. "The local ordinance here attacked not only prohibits Ed. 2d 648, 95 S. Ct. 2561 (1975). This case, while relevant, _topless dancing in bars but also prohibits any female was not cited by the parties. from appearing in 'any public place' with uncovered The ordinance.under consideration there made no_allow- breasts. There is no limit to the interpretation of the term 'any public place.' It could include the theater, town ___ _ance at all for artistic_performances. For this reason, the hall, opera house, as well as a public market place, street Supreme Court found it overbroad. The court did not find or any place of assembly, indoors or outdoors. Thus, this it necessary to define the circumstances or to designate the ordinance would prohibit the performance of the "Ballet places in which breast exposure would be entitled to con- Africains' and a number of other works of unquestionable stitutional protection, deeming it sufficient to adopt the artistic and socially redeeming significance." 364 F. . federal district court's suggestion that a performance of the • Supp.,'at 483. "Ballet Africains" (presumably in a theatre) would come By its own precedents, the Supreme Court had often rec- within its ambit. ognized the right of cities and states to regulate offensive • The opinion's brief discussion of the issue of overbreadth conduct in public places, even though it involves expressive does, however, throw some light on the question. Its con- activity or speech. clusion is based upon the dictum in California v. LaRue, In Grayned v. Rockford, 408 U.S: 104, 33 L. Ed. 2d 222, supra, where the same author noted that the court had 92 S. Ct. 2294 (1972), the high court upheld an anti-noise ordinance, as against a contention that its terms were broad held that both motion pictures and theatrical productions are within the protection of the First and Fourteenth enough to prohibit constitutionally protected speech, noting that the only speech which it would prohibit was that which Amendments. The writer contrasted the bar room perform- ances validly forbidden under the California statute with a was disruptive. Citing Tinker v. Des Moines Independent performance by a scantily clad ballet troupe in a theatre. Community School Dist., 393 U.S. 503, 21 L. Ed. 2d 731, 89 And when he came to distinguish the ordinance in Doran u. S. Ct. 733 (1969), the court said that the public sidewalk Salem Inn, Inc., supra, he did so on the ground that it adjacent to a schoolhouse may not be declared off limits for applied "not merely to places which serve liquor, but to expressive activity; but in each case expressive activity may many other establishments as well." If the two cases are be prohibited if it materially disrupts classwork or involves read together, along with the cases cited in California v. substantial disorder or invasion of the rights of others. LaRue, supra, the conclusion is inescapable that when the In Police Dept v. Mosley, 408 U.S. 92, 33 L. Ed. 2d 212, court has spoken of constitutional protection for nudity or 92 S. Ct. 2286 (1972), the Supreme Court, while holding semi-nudity as a means of expression, it has had reference that the particular picketing ordinance involved made impermissible distinctions between peaceful labor picketing to artistic performances in a theatre of some kind. and other picketing, said that the court had continually 600 SEATTLE v. BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v.BUCHANAN 601 90 Wn.2d 584,584 P.2d 918 90 Wn.2d 584,584 P.2d 918 recognized that reasonable "time, place and manner" regu- against movies solely on the bhsis of content, as a result of lations of picketing may be necessary to further significant which drive-in theatres were discouraged from showing governmental interests. And in Grayned the court said that movies containing any nudity, however innocent or even the nature of a place and the pattern of its normal activi- educational. The footnote to that holding makes it plain ties, dictate the kinds of regulations of time, place, and that the court did not intend its ruling to apply to ordi- manner that are reasonable. nances prohibiting public nudity. The court said, at page If speech and picketing can be prohibited in certain 211 n.7: places because of their nature and because they do not fit . Scenes of nudity in a movie, like pictures of nude per- into the pattern of the normal activities of those places, all sons in a book, must be considered as a part of the whole the more so can nudity as a means of expression be con- work. See Miller v. California, 413 U. S. 15, 24 [37 L. Ed. fined to places which are appropriate for such exhibitions. 2d 419, 93 S. Ct. 2607] (1973); Kois v. Wisconsin, 408 U. Exposure of the body as a means of artistic or dramatic S 229 [33 L. Ed. 2d 312, 92 S. Ct. 2245] (1972). In this respect such nudity is distinguishable from the kind of expression is the only constitutionally protected exposure public nudity traditionally subject to indecent-exposure which has been suggested to us. Balancing this right of laws. See Roth v. United States, 354 U. 'S. 476, 512 [1 L. expression against the City's right to maintain public order Ed. 2d 1498, 77 S. Ct. 1304] (1957) (Douglas, J., dissent- and decency, it strikes us as not unreasonable that expres- ing) ("No one would suggest that the First Amendment sion by way of body exposure in public should be restricted permits nudity in public places"). Cf. United States v. to buildings which are customarily used for artistic per- O'Brien, 391 U. S. 367 [20 L. Ed. 2d 672, 88 S. Ct. 1673] (1968). formances and where only consenting audiences attend. We do not think the Supreme Court meant to suggest in Doran Not only did the court expressly distinguish indecent that the constitution will not permit a city to prohibit nude exposure laws, but the case dealt with a restriction on the performances in its streets, parks, and public places other showing of motion pictures, a medium of First Amendment expression, in a theatre. Like Doran,v. Salem Inn, Inc., than theatres. supra, it does not support Since the ordinance here specifically makes allowance for p the contention that the ordi- Since performances in appropriate establishments, it is nance here is overbroad. not open to the criticism which caused the court to strike The appellants cite many cases which have held that a down the ordinance in Doran v. Salem Inn, Inc., supra. statute or ordinance which chills the exercise of a constitu- Another case relied upon, Erznoznik v. Jacksonville, 422 tional right, or can be applied to a constitutionally pro- U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975), infact tected activity, is invalid. All of the cited cases involved statutes or ordinances supports the validity of the ordinance here. In that case, a which regulated activities which enjoy First or Fourteenth city ordinance prohibiting the showing of any motion pic- Amendment protection.6 In most of these cases the person ture film depicting nudity in a drive-in theatre was challenging the constitutionality of the enactment was one declared invalid. It was conceded by the city that the pro- hibition was broad enough to include constitutionally pro- 6Speech: Terminiello v. Chicago, 337 U.S. 1, 93 L. Ed. 1131, 69 S. Ct. 894 tected films. It was nevertheless argued that any film (1949);Joseph Burstyn,Inc.u. Wilson,343 U.S.495,96 L.Ed. 1098,72 S.Ct.777 containing nudity, which could be viewed from a public (1952); Roth v. United States, 354 U.S. 476, 1 L. Ed. 2d 1498, 77 S. Ct. 1304 was suppressible as a nuisance. The court denied this (1957); Cox v. Louisiana, 379 U.S. 536, 13 L. Ed. 2d 471, 85 S. Ct. 453 (1965); place, pP Redrup v. New York, 386 U.S. 767, 18 L. Ed. 2d 515, 87 S. Ct. 1414 (1967); contention, holding that the ordinance discriminated Bachellar u. Maryland, 397 U.S. 564, 25 L. Ed. 2d 570, 90 S. Ct. 1312 (1970); • 602 SEATTLE v.BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v.BUCHANAN 603 90 Wn.2d 584,584 P.2d 918 90 Wn.2d 584,584 P.2d 918 who was himself claiming that his constitutional right was [8] The Seattle ordinance does not purport to regulate infringed. However, in Gooding v. Wilson, 405 U.S. 518, 31 speech, but rather regulates conduct. That such conduct L. Ed. 2d 408, 92 S. Ct. 1103 (1972), in Lewis v. New might, in a given context, be found to be so connected with Orleans, 415 U.S. 130,' 39 L. Ed. 2d 214, 94 S. Ct. 970 the expression of ideas as to be included within the consti- (1974), and in Plummer v. Columbus, 414 U.S. 2, 38 L. Ed. tutional protection, does not convert the ordinance from 2d 3, 94 S. Ct. 17 (1973), the United States Supreme Court one regulating conduct to one regulating speech. None of held that laws prohibiting certain speech could be chal- the authorities cited by the appellants go so far as they lenged by the defendants, even though their own conduct - would have the court go in this case. The Supreme Court was not protected, because the language of the laws in expressly recognizes that there is a difference between stat- question covered constitutionally protected speech as well utes regulating conduct and those regulating speech and as speech which could, properly, be punished. It is at once has said, in United States v. O'Brien, 391 U.S. 367, 376, 20 apparent that the court in these cases was concerned with L. Ed. 2d 672, 88 S. Ct. 1673 (1968), that not every form of laws which directly pertained to speech, an expressly pro- conduct must be treated as protected speech, for tected activity. See also Grayned v. Rockford, supra; cf. [w]hen "speech" and "nonspeech" elements are combined Doran u. Salem Inn, Inc., supra. in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech ele- Schacht u. United States, 398 U.S. 58, 26 L. Ed. 2d 44, 90 S. Ct. 1655 (1970); ment can justify incidental limitations on First Amend- Gooding u. Wilson,405 U.S.518,31 L.Ed.2d 408,92 S.Ct. 1103(1972);Miller u. ment freedoms. California, 413 U.S. 15, 37 L. Ed. 2d 419,93 S. Ct.2607 (1973);Hess v. Indiana, 414 U.S. 105,38 L.Ed.2d 303,94 S.Ct.326(1973);Cohen v. Chesterfield County Since the ordinance here in question is manifestly School Bd., 414 U.S. 632, 39 L. Ed. 2d 52, 94 S. Ct. 791 (1974); Lewis v. New directed at conduct and does not purport to regulate the Orleans,415 U.S. 130,39 L. Ed. 2d 214,94 S.Ct.970(1974);Jenkins v. Georgia, expression of ideas, and indeed expressly makes allowance 418 U.S. 153,41 L. Ed. 2d 642, 94 S. Ct. 2750 (1974);Erznoznik u. Jacksonville, 422 U.S. 205, 45 L. Ed. 2d 125, 95 S. Ct. 2268 (1975); Political Expression and for the prohibited conduct in a context of such expression, Association: NAACP v. Button, 371 U.S. 415, 9 L. Ed. 2d 405, 83 S. Ct. 328 and in the absence of any showing that any person has a (1963);Dombrowski u.Pfister,380 U.S.479,14 L.Ed. 2d 22,85 S.Ct. 1116(1965); right to present a public theatrical production involving Assembly: Coates v. Cincinnati, 402 U.S. 611, 29 L. Ed. 2d 214, 91 S. Ct. 1686 (1971); Cox v. Louisiana, supra;Speech and Association:Baggett v. Bullitt, 377 breast exposure outside a threatre or museum, we must U.S.360, 12 L. Ed. 2d 377,84 S.Ct. 1316(1964). reject the appellants' contentions that this ordinance pro- The Supreme Court went beyond its prior holdings in Doran u. Salem Inn, hibits constitutionally protected speech. Inc.,422 U.S.922,45 L.Ed.2d 648,95 S.Ct.2561(1975),in granting standing to The appellants next argue that the conduct prohibited parties whose constitutional rights were not involved,since the ordinance did not purport to regulate speech, or any other First Amendment rights. The only case here was not obscene, as that word has been defined by the which the Court cited in support of its grant of standing was Grayned u. United States Supreme Court, and cite a number of cases Rockford,408 U.S. 104,33 L.Ed.2d 222,92 S.Ct.2294(1972).That case involved which have held that the expression of ideas cannot be for- an anti-noise ordinance which prohibited a person on grounds adjacent to a school building from willfully making a noise or diversion that disturbed or bidden on the ground that the material is offensive, unless tended to disturb the peace or good order of the school session. The ordinance, it is in fact obscene. Since there is no contention here that although it regulated speech,was upheld. the appellants were engaged in any kind of communicative Unfortunately,the Court in Doran u.Salem Inn,Inc.,supra,did not take note of the fact that the ordinance did not purport to regulate speech or other pro- or expressive activity, these cases have no application. tected conduct,and that those cases which had previously allowed a challenge by [9] The appellants further argue that their conduct was a person whose own conduct was not protected involved regulations of that not lewd, within the common-law meaning of that word. nature. From a reading of the opinion, one cannot ascertain whether the depar- The legislative body included the "intentional exposure of Lure from the normal practice was intentional or inadvertent. Sept. 1978 SEATTLE v. BUCHANAN 605 6G-1 SEATTLE v. BUCHANAN Sept. 1978 90 Wn.2d 684,684 P.2d 918 90 Wn.2d 684,684 P.2d 918 P.2d 521 (1975), we found an ordinance which failed to female breasts" within its definition of "lewd conduct." The define "loitering" void for vagueness. We said there that general rule is that the legislature may define a word, giving the due process clause requires that citizens be given fair it a broader meaning than its ordinary meaning. lA C. notice of what is forbidden. Sands, Statutes and Statutory Construction § 20.08 (4th It is not suggested that section 12A.12.150 falls short of ed. 1972); 73 Am. Jur. 2d Statutes § 224 (1974). that requirement. Rather the contention is that the cover- We have recognized this rule many times. Among the age of the statute is so broad that it includes conduct which cases are Publishers Forest Prods. Co. v. State, 81 Wn.2d does not come within the common—law meaning of the word 814, 505 P.2d 453 (1973); Garrison u. State Nursing Bd., 87 "lewd." In other words, the appellants would have the court Wn.2d 195, 550 P.2d 7 (1976); and State v. Roadhs, 71 require the legislative body to define its terms, when enact- Wn.2d 705, 430 P.2d 586 (1967). ing a law but at the same time restrict the definition to that The validity of legislative definitions is a question which which the court would adopt, were it to enact the statute. usually arises in the context of statutory interpretation. See No authority is cited for such a proposition, and we think it 1A. C. Sands, Statutes and Statutory Construction §§ contrary to the fundamental principle that the power to 20.08, 27.02 (4th ed. rev. 1972), and 2A C. Sands, Statutes define criminal offenses resides in the legislative branch. 22 and Statutory Construction § 47.07 (4th ed. rev. 1973). C.J.S. Criminal Law §§ 11, 15 (1961); 21 Am. Jur. 2d There is no ambiguity in the law before us, nor is it con- . Criminal Law § 14 (1965). Where the legislature has tended that any such exists. Looking at the ordinance as a defined an offense, its definition supersedes the common whole, it is evident that one of the purposes of the adoption law. State v. Benson, 144 Wash. 170, 257 P. 236 (1927). of section 12A.12.150 was to correct the ambiguity which [10, 11] The fact that the legislative body may conceiv- characterized its predecessor, which read: ably have been somewhat harsh in characterizing the con- ` . It is unlawful for any person to appear in a state of duct which it saw fit to proscribe as lewd rather than '' nudity, or in any indecent or lewd dress, or make any merely indecent, does not erase the fact that the conduct indecent exposure of his person, or to expose his private itself is described with sufficient clarity to give fair warning parts to public view, or be guilty of any lewd act or behavior in any place exposed to public view. (Ord. 16046 of what is forbidden. That is the description which due § 21; May 23, 1907) [§ 12.11.220.] process requires. State v. Galbreath, 69 Wn.2d 664, 419 It will be seen that the prior law, having no statutory P.2d 800 (1966). definition of the words "nudity," "lewd," "indecent," and Of course, a legislative definition may be so arbitrary that "lewd acts or behavior," was open to a charge of vagueness. it operates to deny constitutional rights or otherwise run Obviously it was not distinguished by the definiteness afoul of constitutional prohibitions. As the Supreme Court which the United States Supreme Court has said is neces- WHEREAS, it is necessary to provide a modern, fair, understandable, compre- sary in a criminal law.' United States v. Sullivan, 332 U.S. hensive and effective criminal code;and 689, 92 L. Ed. 297, 68 S. Ct. 331 (1948). We have adhered I WHEREAS, it is desirable to remove certain regulatory measures from the field to that principle. In State v. Martinez, 85 Wn.2d 671, 538 of municipal criminal law and to distinguish between crimes and non—criminal violations of municipal law;and 7It is of interest that the ordinance in which this section appears was adopted WHEREAS,the Seattle—King County Bar Association has,pursuant to an agree- ' for the express purpose,among others,of clarifying the law pertaining to criminal went with the City of Seattle authorized in Ordinance 99482, completed a conduct.The preamble to ordinance of reads: revision of the criminal code and the Seattle City Council has considered said WHEREAS,existing criminal ordinances of The City of Seattle are in part obso- revision and being fully advised. . . lete, duplicative, incomplete and inconsistent with modern sociological needs; and 606 SEATTLE v.BUCHANAN Sept. 1978 Sept. 1978 SEATTLE v.BUCHANAN 90 Wn.2d 584,584 P.2d 918 90 Wn.2d 584,584 P.2d 918 607 of Errors of Connecticut said in United Interchange, Inc. v. In another case, People v. Smith, 246 Mich. 393, 224 Spellacy, 144 Conn. 647, 136 A.2d 801 (1957), the rule does N.W. 402 (1929), the legislature had passed an act which, not prevent a court, when the constitutionality of a statute according to its title, was designed to define and punish the is attacked, from examining the act to see whether it logi- crime of pandering. A challenge to the statute was waged cally and fairly describes that which it purports to define. upon the ground that the title was too narrow to include all There the legislative body included, within the definition of of the conduct proscribed in the act. The court found that "real estate business," the business of publishing a paper the word pandering was one of narrow meaning, within the which specialized in real estate advertising, in order to sub- common understanding. Therefore, it held, the title was not ject it to requirements which were legitimately imposed sufficient to meet the constitutional requirement that the upon real estate brokers and salesmen but bore no reason- subject matter of a bill be embraced within it. able relation to the publishing business. The court held The principle involved in that case has no application that the attempt to impose such onerous and irrational here. Const. art. 2, § 19, applies only to the legislature, and burdens upon a legitimate business violated the constitu- it is not contended otherwise. tional requirements of due process and equal protection of In any event, the conduct described in the Seattle ordi- the laws. nance is within the ordinary meaning of the word "lewd." In Central Television Serv., Inc. v. Isaacs, 27 Ill. 2d 420, . The word necessarily invites subjective evaluation. What to 189 N.E.2d 333 (1963), a legislative classification of televi- one person may be lewd may be to another entirely inno- sion repairmen as "retailers of parts," for the purpose of cent. That appears to be the reason that the legislative imposing a retail sales tax upon their activities, which tax body here did not see fit to leave to judicial definition the was not imposed upon repairmen generally, was held conduct forbidden. unconstitutional as violative of the requirement that taxes Webster's Third New International Dictionary 1301 be uniform as to the class upon which it operates. (1966) gives the following definition: It will be seen that in these cases, the courts struck down a : sexually unchaste or licentious: DISSOLUTE, LASCIVIOUS legislative definitions which resulted in the imposition of b : suggestive of or tending to moral looseness : inciting burdens which could not have been imposed had the activi- to sensual desire or imagination : INDECENT, OBSCENE, ties in question been correctly defined. We have, by dictum, SALACIOUS (moralists looked upon it as a lewd distrac- taken note of the principle involved, in State v. Zornes, 78 tion—Lewis Mumford) (loud, lewd dissonances from the Wn.2d 9, 20, 475 P.2d 109 (1970), where we said: orchestra in the p1t—TIME) (the hawk stood . with his lewd purple tongue lolling from his open beak— It is doubtful whether a legislative declaration contrary Liam O'Flaherty) to all the evidence can be sustained as constitutional, if " its effect is to deny to a defendant equal treatment under Among the definitions are suggestive of or tending to the law. moral looseness—inciting to sensual desire or imagination." There is no suggestion here that the City was without The appellants' conduct can be fitted into these descrip- power to punish the conduct of which the appellants were tions, even though many persons, including some judges, found guilty, or that, by defining it as lewd, the council might find their conduct neither suggestive nor inciting. It attempted to impose upon it a punishment which could not is enough to say that the legislative body of the City of otherwise have been prescribed. Seattle determined that a sufficient number of citizens would find the exposure of female breasts to be lewd, { -' ' 608' , SEATTLE v:BUCHANAN Sept. 1978 Sept.1978` ' SEATTLE v.BUCHANAN 609 r`' 90 Wn.2d 584,584 P.2d 918 90 Wn.2d 584,584 P.2d 918 t .; :.i`., within the broad definition of the word, to warrant its pro- breasts: As=.the court'construed these'two`laws, they for- '" T"hibition for the preservation of the public morals, peace bade the mere exposure of female breasts, but did not for- and.good order. bid exposure of!the genitals of either male:or female unless We are not faced with'the necessity of construing the the exposure was accompanied by lewd gestures or move- `; intent of the legislative body when it used the word "lewd." ments. Recognizing the anomalous result of his interpreta- It has defined the word for us. Accordingly, cases cited by tion, the judge suggested that the legislature might see fit the appellants, in which courts have been called upon to to correct it. j _-` interpret the legislative intent with respect to the word The New York court also held that the 'law forbidding where no statutory definition is provided, are not determi- "exposure of the female"',was constitutional, against con- ' -, native. In such cases, the courts naturally give the law in tentions that it denied due process and equal.protection. `,, question a strict construction in favor of the accused, in It suggested that since the exposure of female breasts is compliance with the established doctrine. • not so'serious an offense as others prohibited in this sec- Cases which the appellants cite interpreting statutes tion, the: council acted arbitrarily when it classed these '.•which use the word "lewd" without defining it are therefore offenses '.together.: In view' of the fact that RCW . not in point. In re Smith, 7 Cal. 3d 362, 497 P.2d 807, 102 35.22.280(36), authorizing the city to make all regulations Cal. Rptr. 335 (1972), Wainwright v. Procunier, 446 F.2d , necessary for 'the preservation of public morality, health, 757'.(9th Cir. 1971), and In re Giannini, 69 Cal. 2d 563, 446 peace, and good order within its limits, provides the same P.2d 535, 72 Cal. Rptr. 655 (1968), all involved the inter- punishment for'all-violations of such regulations, we cannot pretation of California Penal Code § 314, which punished see merit in this theory. Pursuant to this statute, the City "wilful and lewd exposure." People v. Gilbert, 72 Misc. 2d of Seattle, in section 12A.01.090 of the ordinance, which 75, `338 N.Y.S.2d 457 (N.Y. City Crim. Ct. 1972), also covers all criminal conduct, as well as other violations, has il • 'involved a statute punishing any person who "wilfully and provided that offenses of a criminal nature shall be pun- lewdly exposes his person . . ." Unlike those statutes, the . ished by a fine of not more than $500 and/or imprisonment Seattle ordinance under consideration here does not make in the city jail for not more .than 6 months. Thus all such -- _ lewdness a separate element of the offense. Rather, it offenses .are of 'the same class, though they range in seri- ` defines as lewd the intentional exposure of one's female ousness from disorderly conduct to assault.. ':,: .breasts in public. • The seriousness of the offense is considered by the trial Of greater relevance here is the fact that in the sequel to J judge in imposing sentence within the confines of the legis- ,the New York case, People v. Gilbert, 72 Misc. 2d 79.5, 339 lative prescription. The imposition of fines of only $100 N.Y.S.2d 743 (N.Y. City Crim. Ct. 1973), the same.'judge xeflects the lower court's proper exercise of discretion in held that the offense of- "exposure of the female" was an evaluating the seriousness of the offenses charged here. offense included within the greater offense of "public lewd- Finding no constitutional flaw in the ordinance, and the ness" and sustained the defendant's conviction upon this •1 violations being'admitted, we affirm the judgment. count. The defendant in that case had exposed her entire WRIGHT,- C.J. and HAMILTON, STAFFORD, and HICKS, JJ., body on a public beach but had not made any lewd gestures or movements. "Exposure of the female" as defined by the concur. • New York law was the intentional exposure of female il A "u` ' ..;: 610 SEATTLE v.BUCHANAN Sept 1978 Sept.1978 ' SEATTLE v.BUCHANAN ,' 611. ;.. 90 Wn.2d 584,584 P.2d 918 90 Wn.2d 584,584'P.2d 918 is'-::,`">':'' WRIGHT, C.J. (concurring)—I concur in the majority It.must exercise its`power, however, through an.ordinance `'` ' opinion and have signed the same. I do, however, wish to which''does' not discriminate or arbitrarily exaggerate the comment on one aspect of this matter. Mr. Justice Utter in severity of the crime: It is not the definition found in the i his,dissent referred to ,the use of the word "lewd". I fully. - dictionary of "lewdness" which controls in this case, but agree with him that this word is unfortunate in that it will ' rather the City's act'of equating public exposure of breasts, brand these young women with an ill deserved stigma. Cer- • without requiring an intent to excite a sexual response in g tainly the use of that word will bring to the minds of per- the beholder or conduct'which would naturally appeal. to sons learning of the conviction visions of something far , ' the viewer's prurient interests, with such other subsections different from what actually happened. of the ordinance which forbid: public' fondling of the. geni- +: The legislative body had clear authority to forbid the < tals,,masturbation, and sexual intercourse.'': ' ,, .ry,- ;conduct involved in this litigation. The legislative body had ' If the convictions of these students are allowed to stand, clear authority to define the words used in its enactment these young women will carry with them throughout their John H. Sellen Constr. Co. v. Department of Revenue, 87 lives a':record of conviction for lewd conduct, yet, everyone '-.,Wn.2d 878,'558 P.2d 1342 (1976); concerned concedes that, but for the arbitrary definition of .i.,, ;While„the use of the word "lewd" is unfortunate, that that crime.which seems to have been adopted by the City of ` relates to the wisdom of a legislative enactment. It is snot a Seattle, the appellants neither acted nor intended to act in judicial function to pass,,upon the wisdom of legislative a lewd ,manner`as that term is used in reference to the 1 enactments. State v. Carey, 4 Wash. 424 (1892); Treffry v. other acts specified. Such a criminal record, and the impli- Taylor, 67, Wn.2d 487, 408 P.2d 269 (1965); State ex rel. cation of a disposition to commit acts of extreme vulgarity -Wolfe v..Parmenter, 50 Wash.'164, 96 P. 1047 (1908). which necessarily accompanies it, may do these appellants Another problem. seems involved in ordinance No: • incalculable harm in future years. , /-, 12A.12.150. In this 'case there is no question the Seattle ;The majority's use of the cases of United Interchange, '-Arboretum is a public place. The ordinance, however, does ' . Inc. v. Spellacy, 144 Conn. 647,' 136 A.2d 801 (1957) and "-'..:contain the language "in a public place.or at a place and Central-Television Serv.,'Inc.'v. Isaacs, 27'.Ill. 2d 420, 189 .'under circumstances where such act could be observed by • N.E.2d 333 (1963), to' support its position is particularly any member of the public." It is not difficult to predict that inappropriate. It suggests'these cases support the proposi- ` ` _ at some future time the quoted language may come under tion that courts may strike 'down legislative definitions question by a party with standing to challenge the same. which result.in the imposition of burdens:which could not --, '. have been imposed by-the legislative body.had the activities ;;':.'s;.,, HICKS, J., Concurs with WRIGHT, C.J. - '-in'question.'been'correctly. defined. The conduct of'appel- ;<_: ; :3' =.,. lants`'in';this':case-could have been':prohibited if' correctly ,' .UTTER, J. (dissenting)—I cannot agree with the majority. categorized and•the Central Television case is directly in ;''' ' ''It applies general rules which have no application in the support of that proposition. In Central Television, the leg- '.: - context of the facts in this.case and misconstrues the cases islature had defined the occupation of "retailer" to include ,' it cites as supporting its conclusions. The facts presented television servicemen. A tax was levied upon all persons ' do not constitute a crime under any reasonable interpreta- - engaging in the occupation of "retailer." Television service- tion of the ordinance in question. The City of Seattle has men challenged the law classifying them as persons engaged the power to enact an ordinance prohibiting public nudity. , ; . `., f`,,--,-,.'',-.612 SEATTLE v.BUCHANAN Sept.1978 hh ::'., :...-;. . Sept.1978 �I , SEATTLE v:BUCHANAN 613 !'= b': : 90 Wn.2d 584,584 P.2d 918 t ti;: ..:,..:; , 90 Wn.2d 584,584 P.2d 918 _`, in the occupation. of retailer. Everyone conceded that tele-' '''`"',�`-I°; �vision servicemen could be subjected to an occupational the defendant was convicted of the offense of. exposure of a female", a separate crime not in any•way a part of the tax, but the servicemen contended that because they were . statute on lewdness. The court held that exposure of a not retailers they could not be subjected to that occupa- female is a lesser included offense of public lewdness. It so tional tax. As the court stated, "The State contends plain- held because to prove exposure of a female the state had to tiffs are engaged in a taxable occupation—and plaintiffs prove every element of public lewdness except the central concede their occupation to be taxable—but not under an and fundamental requirement of the lewdness statute, act taxing the business of engaging in retail sales." Central .which was that the conduct must be lewd. The defendant Television Serv., Inc. v. Isaacs, supra at 427. had been acquitted of public lewdness in the first case The court held that the television servicemen could not because the prosecution had failed to prove the defendant's ' .r_: • :be taxed under the "Retailers' Occupation Tax" because exposure had been lewd. the definition of "retailer" was arbitrary and capricious in At least two courts have held that mere public nudity, : . its inclusion of the servicemen. The court also stated that it without more; cannot provide the basis for a lewd conduct is impermissible for the legislature to attempt to convert an conviction. In re Smith, 7 Cal. 3d 362, 497 P.2d 807, 102 activity into something it is not by adopting a definition which • Cal. R.�tr: 335 (1972), expressly holds that'a defendant who is unreasonable. Just as the occupation of television simply sunbathed in the nude, in the absence of additional serviceman could be taxed in that case in an amount iden- . conduct intentionally directing attention to his genitals for • tical to that applied to retailers, women exposing their .. breasts in public may be convicted equally if that act is sexual purposes, did not lewdly expose himself. Similarly, it was held in McKinley v. State, 33 Okla. Crim. 434, 436, 244 properly defined. However, television servicemen under the P. 208 (1926), that an elderly man who wandered about his Central Television case could not be taxed as retailers home naked, in full view of his neighbors, was not guilty of because the definition including servicemen within that lewdly exposing his person, the court holding that lewd classification was found to be arbitrary and unreasonable. exposure imports more than a negligent disregard of the Similarly, women exposing their breasts in public cannot be decent proprieties and consideration due to others." While convicted of lewd conduct because the definition including in both theses instances the defendants could constitution- exposure of breasts within the classification of lewd conduct ally have been said to have violated a more narrowly drawn is an arbitrary definition and an unreasonable classification. ordinance, each was held to be not guilty of lewd conduct. I The case cited by the majority is in fact direct support for would apply similar principles here. the position I take: Similarly, in the United Interchange The ordinance at issue declares any person to be guilty of case the court indicates some regulation of the activity for- "lewd conduct" who "intentionally performs any lewd act bidden could have been undertaken and that the primary in'a public place" and defines "lewd act" as including, vice was the method of definition rather than the attempt among other things, "an exposure of one's genitals or to regulate. That case as well supports the position of the female breasts . ." Both the legal and lay definitions of dissent, not the majority. T ':lewd conduct" consistently require more than the expo- The majority's use of People v. Gilbert, 72 Misc. 2d 75,� sure of`the Body. This court has recently held the word 338 N.Y.S.2d 457 (N.Y. City Crim. Ct. 1972) and People v. "lewd". is interchangeable with "obscene" and noted that Gilbert, 72 Misc. 2d 795, 339 N.Y.S.2d 743 (N.Y. City Crim. the dictionary definition of the term includes such other Ct. 1973), is particularly inappropriate. In the second case, terms as "lascivious" "dissolute", or "salacious", Seattle v. • '" !'''' 614 SEATTLE v.BUCHANAN Sept. 1978 Sept:1978 SEATTLE v.BUCHANAN 615 :•.' : 90 Wn.2d 684,684 P.2d 918 90 Wn.2d 684,684 P.2d 918 Marshall, 83 Wn.2d 665, 521 P.2d 693 (1974). Each of these ' . The':majority asserts that cases such i as In re Smith, ' :``,,, terms is intended, given its ordinary meaning, to describe supra, and McKinley v.:State, supra, are distinguishable in conduct calculated to arouse sexual desire or excite prurient that they involve statutes utilizing the word "lewd" without interests. Courts of other`jurisdictions have adopted similar further definition, while the ordinance here at issue pur- definitions, the one most frequently set forth being that the portedly makes simple public nudity lewd in and of itself. >;. term "lewd" means "given to unlawful indulgence of lust, The opinion relies, in making this distinction, upon a pas- eager for sexual indulgence . . ." State v. Jones, 2 Conn. sage from'Sands' treatise on statutory construction which Cir. Ct. 698, 700, 205 A.2d 507 (1964); Martin v. State, 534 states a legislative definition is binding upon the courts. P.2d 685 (Okla. Crim. App. 1975); Chesebrough v. State, The majority, however, fails to take note of the sentence 255 So. 2d 675 (Fla. 1971). See generally 25 Words and immediately following the quoted passage upon which it Phrases, "Lewd" (1961). The uncontroverted facts of this relies. That sentence states: case, which are set forth at length in the majority and dis- Ifs however,, the definitions are arbitrary and result in senting opinions, clearly establish that the appellants are unreasonable' classifications or are uncertain, then the not guilty of lewd conduct under any of these definitions. It court is not bound by-the definition. is equally clear that their actions were not as serious as' lA C. Sands,Statutes and Statutory Construction § 20.08 - , those set forth by other subsections of the ordinance such (4th'ed.-1972)1 It is'this principle of construction which is as fondling.of the genitals, masturbation or public acts of - - applicable .here. If the "exposure of:the female breasts" sexual intercourse. • provision is not read as requiring that the exposure take As the majority recognizes, courts are required to read a place.in a.lewd manner, it is both an arbitrary definition statute in the "'animating context of.well—defined usage"'. and `an.; unreasonable classification in light of the other '' State v. Dixon, '78 Wn.2d 796, 805, 479 P.2d 931 (1971). types of conduct enumerated in the ordinance and need not Criminal statutes must be narrowly construed in favor of -' be considered conclusive by this court. • the defendant. State v. Bell, 83 Wn.2d 383, 518 P.2d 696 If ,read literally, the• ordinance clearly prohibits many (1974). Further, where the overall meaning of a criminal types of conduct•which cannot logically be said to have statute indicates a particular association of offenses, the act been within. the City's interest to prohibit. See majority - should be construed against the inclusion of an offense out- opinion footnote 5. Reading the statute as requiring a lewd ''. side the scope of the overall meaning of the act. State v. exposure eliminates all of these difficulties. { Chase, 50 Del. 383, 131 A.2d 178 (1957). _ I:agree with'the majority's assertion that the City has the = Given these definitions and rules of statutory construc- power to regulate the type of conduct engaged in by these ton •I conclude it was the intent of the city council, in ;; defendants. 'However, it must do so in the context of an enacting this ordinance, to prohibit the exposure of the ordinance which is both constitutional and places the crime • female breasts only when such an act was done in a lewd in a logical classification. The power of the-City to attach manner, that is, in a manner intended to excite a sexual - any;label it wishes -to 'conduct which it has the power to response in the beholder or which naturally would appeal regulate must be exercised within the bounds of proper • to the viewer's prurient interests. The conduct of the , classification. I dissent. appellants is therefore not prohibited by the ordinance 1 under which they were charged. ' BRACHTENBACH and DOLLIVER, JJ., concur with UTTER, J. `Kj: " "616 , SEATTLE v.BUCHANAN Sept. 1978 Sept.•.1978, SEATTLE v.BUCHANAN ;617 90 Wn.2d 584,584 P.2d 918 90,Wn.2d 584,684 P.2d 918 'HOROWITZ, J. (dissenting)—I agree with Utter, J., that sperm :would restrict only men. Legislation of:this-kind _P .• :.the lewd conduct ordinance section 12A.12.150(1)(a), (2), does not, however, deny equal rights to the other sex. So t4 long as the law deals only with a characteristic found in (4), which characterizes as lewd the exposure of female i breasts in a public place,for at a place and under circum- . all (or some);women but no men, or in all (or some) men but no women, it does not ignore individual characteris- le stances where such act could be observed by any member of tics found in' both-sexes in favor of an average based on the public, in law is arbitrary, capricious and violative of one sex. Hence such legislation does not, without more, s' • equal protection, rendering the dismissal of the charge violate the basic principle of the Equal Rights Amend- , mandatory. I also believe the ordinance is unconstitution- ment. I ' ally overbroad, in violation of the First Amendment, for the " This exception was noted in Darrin.v. Gould, 85 Wn.2d ,•: .reasons discussed herein. I agree with the majority, how- 859, 872 n.8, 540 P.2d•882 (1975), but was not applicable. In , ever, that it is not invalid under the state's equal rights that case we held a regulation prohibiting girls from playing 1 '' ' : amendment. Const. art. 31 (amendment 61). interscholastic 'Contact.football on boys' teams violated the ; :-, '' ' To be violative of equal rights a statute or ordinance equal rights amendment.:The regulation. was defective must address some matter or conduct which is substantially because it discriminated solely on the basis of gender. Since -• -: :identical in both sexes. A regulation or proscription applied boys, and girls, in that case were found capable of equal ' only to members of one sex, then, would be unlawful dis- , performance in!football, to exclude only girls from play was • crimination based on sex. held clearly to discriminate on the basis of,sex. The Seattle ` 1 When, however, the matter .regulated or prohibited ordinance,in g�lestion here, however, regulates not on the ; =:; relates to a physical characteristic peculiar to one sex, and T basis of genders but on the basis of possession of a physical E ,' : . not common to both, the discrimination may be valid. See , ' characteristic, one which is unique to women, i.e., female General Elec. Co. v. Gilbert, 429 U.S. 125, 50 L. Ed. 2d 343, breasts. `' 4` It is .contended that female breasts are not unique to <; 97 S. Ct. 401, 409 (1976). Geduldig v. Aiello, 417 U.S. 484, 496 n.20, 41 L. Ed. 2d 256, 94 S. Ct. 2485 (1974). See also females; that some men have breasts. For purposes of this I N Brown, Emerson, Falk & Freedman, The Equal Rights dissent, we may assume this is true. However, the number k of such men in societyis on the whole very, verysmall. I' Amendment: A Constitutional Basis for Equal Rights for ; I. =Women; 80 Yale L.J. 871, 893 (1971), which states the mat- In popular understanding, female breasts are a characteris- ! p''; • •.ter well as follows: tic of the female, not of the male. In interpreting the reach j { The fundamental legal principle underlying the Equal of.the equal rights amendment,. we should interpret that - 4 Rights Amendment, then, is that the law must deal with amendment in a manner that meets a .common under- , ` ';:, particular attributes of individuals, not with a cla'ssifica- standing. The 'understanding of an elite group of profes- �,J . ...tion based on the broad and impermissible attribute of sionals that a small group of men,have such breasts is not sex. This principle, however, does not preclude legislation the common understanding of the characteristic, and ' r1 (or other official action) which regulates, takes into de `�� account, or otherwise deals with a physical characteristic should not guide our application of the amendment. , ;a; unique to one sex. In this situation it might be said that, While the ordinance prohibiting exposure of female ;• ; in a certain sense, the individual obtains a benefit or is breasts in public does not violate the equal rights amend- • ' . subject to a restriction because he or she belongs to one . ment, it does violate the First Amendment. The language of or the other sex.' Thus a law relatingto wet nurses would •r; the ordinance is so broad that it prohibits conduct which is ' • cover only women, and a law regulating the donation of t: ,'j v,'<'fi18; ,, SEATTLE v.BUCHANAN Sept. 1978 1 Sept.1978 SEATTLE v.BUCHANAN F ':619 90 fl Wn.2d 584,584 P.2d 918 90 Wn.2d 684;584 P.2d 9,18 " ''a:` :_,`,symbolic speech clearly protected by the First Amendment. allowed to challenge the:validity,of an ordinance.or statute ?'.=• 'It is-therefore unconstitutionally overbroad and void. on the basis of overbreadth,,to ensure that the, defective An ordinance or legislative act is overbroad if its reach law will not continue to suppress free speech. The rule was € et. extends beyond speech prl conduct legitimately subject to stated in Doran; v: Salem Inn, Inc., 422 U:S. 922, 933, 45 L. r. :regulation and prohibits or suppresses constitutionally pro- . i , Ed. 2d 648, 95 S. Ct. 2561 (1975) (hereinafter referred to as ' tected speech or conduct. United States v. Robel, 389 U.S.. Doran), a,case cited and discussed by the majority. 258, 266, 19 L. Ed. 2d 508, 88 S. Ct. 419 (1967). The Seattle We have previously held that even though a statute or „•,4 ordinance suppresses protected speech by. prohibiting ordinance may be constitutionally applied to the activi- 'r ties of aparticular defendant, that defendant maychal- '` . .. ..•nudity in dramatic performances taking place in any public place other than a theater or museum. City of Seattle ordi- lenge it on the basis of overbreadth if it is so drawn as to Hance No. 12A.12.150. Indeed, the ordinance reaches even sweep =snbected speech or expression ofer ot before the Court. As we said in • ;.,further to prohibit these performances in any private place Grayned v. City of Rockford, 408 U.S. 104, 114 (1972): 4 "which might be within the view of a member of the public. "Because overbroad laws, like vague ones, deter privi- City of Seattle ordinance No. 12A.12.150(2). Nudity in • •leged .activity, our cases firmly establish appellant's . some dramatic performances is protected First Amendment standing to raise an overbreadth challenge." :.: 'symbolic speech, as the majority concedes. By limiting _ Although the majority opinion appears somewhat critical of severely the places,in which such productions may be per- this rule, it is nonetheless binding on this court under the _ formed, the ordinance on its face suppresses constitution- supremacy clause. U.S. Const. art. 6. The defendants here ally protected speech. Such overbreadth is fatal to the may therefore. (challenge the Seattle ordinance for over- 'validity of the ordinance. breadth. • I . . It is true that the defendants before us here do not claim •.-:The result is not inconsistent with our own holdings. • to have been engaged in a dramatic production or other Discussing the problem of an ordinance which was uncon- ' First Amendment expressive conduct. They do not claim . ' stitutionally vague, this court said: that First Amendment requirements prevent the City from [T]he city contends that good intentions and self- prohibiting their conduct. Nor do they argue the City did " restraint of law enforcement officers will not result in ; not intend to prohibit such conduct. With regard to the unjust prosecution. This assurance, however, does not ' .'validity of the ordinance under which they are charged; -save the ordinance because .well-intentioned prosecutors do not neutralize the vice of a vague 'law.' Baggett v. however, it is irrelevant whether the defendants were ' Bullitt, 377 U.S. 360, 373; 12 L. Ed. 2d 377, 84 Sup. Ct. _, engaged in protected speech or not. The First Amendment 1316 (1964). The law should be so drawn as to make it '`,' question is whether the ordinance under which the defend- inapplicable to cases which obviously are not intended to ' rants are charged is valid. If it is overbroad—and it clearly be.included within,its terms. Ei', 'is—it is invalid, and may not be used to punish any con- • ' ' Seattle v. Drew, 70 Wn.2d 405, 409-10, 423 P.2d 522 duct whatsoever. The charges against the defendants must ' , ' (1967). This.rea6oning is equally applicable to an ordinance . then be dismissed. _ which is overbroad. Where constitutionally protected rights "The reason for such an outcome is compelling. The very of free speech and expression are concerned, it is vital that existence of overbroad laws is an intolerable burden on "a regulation be precisely and narrowly drawn if a challenge 'cherished freedoms of speech and expression. Thus, even• on the basis of overbreadth is to be avoided. See NAACP v. 1 those whose conduct may constitutionally be punished are t >'•i,4:: -`-� ' • SEATTLE v.BUCHANAN Sept i' ,,,,r,..�;;_ , : :. 6 , _ pt. 1978 _ • SeptSept.1978 • SEATTLEv.BUCHANAN _ - 621 ,::r: • 90 Wn.2d 684,684 P.2d 918 90 Wn.2d 684,684 P.2d 918 !: i :E Button, 371 U.S. 415, 433, 9 L. Ed. 2d 405, 83 S. Ct. 328 an open public park in the definition of a theater; for .• (1963). example; would contravene the prohibition against-nudity ' - The Seattle ordinance is defective because it affects con- at a place where a member of the public could observe it. _ . stitutionally protected dramatic performances by discrimi- Furthermore, the pairing of museums and theaters in the i - nating on the basis of their content, i.e., nudity, and exception clause suggests an intent to except buildings, not l• suppressing those performances which contain nudity. places, where dramatic productions or cultural events are •,_ ; Those performances, under the ordinance, may take place most commonly held. A consistent and proper construction only in theaters and museums. It is contended that'this _of, the ordinance, then, is that it prohibits dramatic per- ' 'provision for expressive performances is adequate protec- .formances containing nudity in any place outside a museum • tion for First Amendment freedoms. I disagree. It may be, or structure of:a type commonly understood to be a theater. as the majority argues, that the City of Seattle has taken The majority believes such a restriction is proper. There care to "exempt from [the ordinance's] provisions those is no showing; they argue, that First Amendment expres- artistic and theatrical performances which might conceiv- sion containing nudity must be permitted in parks or other ably involve the exercise of constitutional freedoms." Even public places.; They appear to ignore the fact that First so, the city council had failed in this ordinance because it is Amendment'jurisprudence is replete with United States not sufficiently narrowly drawn. • Supreme Court decisions guaranteeing freedom of speech in It has been argued that the word "theatres" is broad such public places, and denying governments the right to E: enough to include any place where.a dramatic production of restrict'or prohibit such speech on the basis of its content. a type protected by the First Amendment would take place: The majority I does not contend this ordinance prohibits 1 Such a definition is inconsistent with the structure of the only.obscenity' or pornography, which are not protected by l ordinance, and goes beyond the common meaning of the the First Amendment. See Miller v. California, 413 U.S. 15, word. A common definition which is appropriate for use in 23, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973); Paris Adult : construing this ordinance is found in Black's Law Dictio- Theatre I v. Slaton, 413 U.S: 49, 54, 37 L. Ed. 2d 446, 93 S. nary.1647'(4th ed. 1968): Ct. 2628 (1973). They do not deny that protected First Theater. Any edifice used for the purpose of dramatic or Amendment e' pression .is regulated by the ordinance. We ,.,,, ,.;;,.:,. operatic or other representations, plays, or performances, need only quote, then,.a passage from Hudgens v. NLRB, for admission to which entrance-money is received, not ' 424 U.S. 507, 520, 47 L. Ed. 2d 196, 96 S. Ct. 1029 (1975): . including halls rented or used occasionally for concerts or theatrical representations. For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the _, ,:` See also 2 Bouvier's Law Dictionary 3265 (8tli ed. 1914). use of its',streets and sidewalks for First Amendment This common meaning, the meaning understood by the purposes, see Cox v. New Hampshire, 312 U.S. 569; ordinary citizen, must control our interpretation of the Paulos v. New Hampshire, 345 U.S. 395, and may even ordinance. New York Life Ins. Co. v. Jones, 86 Wn.2d 44, forbid altogether such use of some of its facilities, see 47, 541 P.2d 989 (1975). The'broad meaning suggested by Adderley u Florida, 385 U.S. 39; what a municipality may not do under the First and Fourteenth Amendments the majority, on the other hand, eradicates the distinction is to discriminate in the regulation of expression on the between a theater and a theatrical performance. This is not basis of'the!content of that expression. Erznoznik v. City the common understanding of the word "theater." It is also of Jacksonville, 422 U.S. 205. "[A]bove all else, the First inconsistent with the structure of the ordinance. To include Amendment means that government has no power to. i iv,i, II 622 SEATTLE v.BUCHANAN Sept.1978 Sept. 1978 SEATTLE'v.BUCHANAN 623 ' 90 Wn.2d 584,584 P.2d 918 90 Wn.2d 684,684 P.2d 918 • `: :;;,_restrict expression because of its message,. its ideas, its or.viewer..Rather th • . e burden normally falls upon the ' � ', ;!subject matter, or its content" Police Dept. of Chicago v. viewer to "avoid further bombardment of [his] sensibili- ,Mosley, 408 U.S. 92, 95. ties simply by.averting [his] eyes." Cohen v. California 'i r'`' „.The majority would discriminate in the regulation of [403 U.S. 15]„at,21. j Y g 1 ;• expression in artistic performances on the basis of its con- Erznoznik v., Jacksonville, supra at 210-11. Thus, because �.: tent, i.e., nudity, by .confining it to only a few of many an unwilling viewer of nudity in, films may avert his eyes, ': available public fora. That discrimination is impermissible. nude performances may not be banished. from public parks. .i . ' 'Inthis regard the majority opinion misconstrues the signif- The majority argues, however, that Erznoznik supports i, • .icance of Erznoznik v. Jacksonville, 422 U.S. 205, 45 L. Ed. its view because it distinguishes "public nudity tradition- g, •2d,.125, 95 S. Ct. 2268 (1975) (hereinafter referred to as ally subject to !indecent exposure laws" from protected �r ,°'`', ', ,.'Erznoznik). , expression. Erznoznik. v. Jacksonville,. supra at 211 n.7. 1 ;,"`�;• ;,:In.Erznoznik the court held unconstitutional on its face Nudity as indecent exposure is one .thing but nudity as a ' •an,ordinance prohibiting the showing of films containing : form;.of artistic expression is another. The language of the nudity by . a drive—in theater where. the screen is visible ordinance prohibits more..than indecent exposure. It pro- from a public street or other public place.8 The City of • hibits:nudity as la form of artistic expression, which is con- x Jacksonville's argument that it may protect its citizens stitutionally. protected. For this reason the ordinance is 11' from unwilling exposure to material which may be offensive defective: Indecent exposure may of course.be prohibited I' was flatly rejected. A municipality may protect individual by carefully written laws. This ordinance, however, is not privacy by reasonable regulations which are applicable to . narrow enough;It sweeps within its bounds much that may �' all;speech regardless of content. Erznoznik v. Jacksonville, not lawfully be prohibited. It is overbroad: '' supra at 209. The power of a municipality to selectively The majority concedes that nudity in dramatic perform- prohibit certain kinds of speech in public areas on the antes is a form of expression protected by the First a' :'grounds they are more offensive than others, however, is Amendment. This is the inescapable conclusion to: be fi1 strictly limited drawn' from the holdings•of:the United States Supreme i „, - Such selective restrictions have been upheld only when Court in Doran V. Salem Inn, Inc., supra and Erznoznik v. ::.the:speaker intrudes on the privacy of the home, see .Jacksonville,'sukra. . '.; ` Rowan v. Post Office Dept., 397 U. S. 728 (1970), or the �. f fi p In Doran the!court held that a First' Amendment ,chal- , degree of ca tivit makes it impractical for the unwilling �'' g p Y P g lenge. to 'an ordinance'prohibiting nude dancing in any ,',viewer or auditor to avoid exposure. See Lehman v. City • ublic'place was likelyto succeed on the merits. This form 1i I of Shaker Heights, [418 U.S. 298 (1974)]. p i1, of entertainment, it'was noted, may be entitled to First (Footnotes omitted.) Erznoznik v. Jacksonville, supra at Amendment protection under some circumstances. Doran u. { 209. The court explained further:. i k,; • Salem'Irin, Inc.',' supra at'932. The court quoted with i3 ?,[T]he Constitution does not permit government to decide approval a'passage from the lower court opinion,'which i .vhich types of otherwise protected speech are sufficiently , .offensivepto require protction for the unwilling listener cited a particular instance of protected artistic expression ' containing-nudity: li 0i •.s'The similarity between the reach of the Jacksonville ordinance,to nudity vie- "[T]his'ordinance would prohibit the performance of the ible from a public place,and that of the Seattle ordinance,to nudity visible at any . •'Ballet .Africains' 'and a 'number of other works of public place (except a theater or museum) and by any member of the public, is ;',, ; • t • striking. a. ``:.:4 624 . SEATTLE v.BUCHANAN" Sept. 1978 r Sept. 1978 . SEATTLE v.BUCHANAN 4 '`Y5 P; 90 Wn 2d b84,b84 P.2d 918 625 ;r= 'crl 11 ; 90 Wn.2d 584,b$4 P.2d 918 . ;' •_,:''unquestionable artistic and socially redeeming signifi- be:indecent exposure, or it may be an expression of ideas `_', "' PP• which is akin to' speech. The latter may not be prohibited, r ,7.,cance. 364 F. Su 478, at 483. _ Doran v. Salem Inn, Inc., supra at 933. First Amendment nor confinedto"a few places, because of its content. ' protection of nudity in expressive performances, was . Freedom of expression would not truly exist if the right emphasized in Erznoznik. In that case the court sustained a could be exercised only in an area that a benevolent gov- First Amendment challenge to an ordinance prohibiting the eminent has provided as a safe haven for crackpots. screening of films containing nudity in outdoor theaters on Tinker" v. Des Moines School Dist., supra at 513. the grounds that protected speech was suppressed. Erznoz- We emphasize once again that it is irrelevant whether the "nik v. Jacksonville, supra at 211 n.8. It is clear from these defendants before us here were engaged in protected speech 'cases"that nudity as a part of expressive performances is or'not. It may\be true that the conduct in question here u:' symbolic speech protected by the First Amendment. may be prohibited by the City'of.Seattle. The question we ?`. The District Court observed, we believe correctly: •.; must face, however, is whether the ordinance under which "``' _' = "The local ordinance here attacked not onlyprohibits __ the defendants are charged is valid. Because it contravenes topless dancing in bars but also prohibits any female the requirements of the First Amendment, it is not valid. from appearing in 'any public place' with uncovered The defendants may.not be punished for violation of an breasts. There is no limit to the interpretation"of the invalid ordinance. term 'any public place.' It could include the theater, town hall, opera house, as well as a public market In summary, then, the Seattle ordinance is unconstitu- place, street or any place of assembly, indoors or out- tionally overbroad on its face because it prohibits symbolic doors. Thus, this ordinance would prohibit the perfor- speech protected by the First Amendment—an objection mance of the 'Ballet Africains' and a number of other defendants may raise here. It also violates the due process works of unquestionable artistic and socially redeeming significance. 364 F. Supp., at 483. and equal protection clauses in its arbitrary and capricious Doran v. Salem Inn, Inc., supra at 933. characterization of the exposure of female breasts as lewd. +- _ ' :The majority nonetheless argues that, regarding the For any onel of these reasons the ordinance may not be appearance in public of women with naked breasts, a dis- applied to defendants and the charges should be dismissed. Unction must be made between ordinances regulating pure • UTTER, J., concurs with HOROWITz, J. .. 'speech and those regulating conduct. The Seattle ordinance ';.regulates conduct and thus, it is claimed,'is not subject to • , :,,,, the same First Amendment objections as is one regulating ,' speech. This argument is patently inconsistent with the ji 'maorty s recognition that dancing may be expression, and s. ,: fails to recognize the basic First Amendment notion that •'` conduct which is expression can be "akin to 'pure speech.'" , l`• Tinker v. Des Moines School Dist., 393 U.S. 503, 508, 21 L. , r��'• '''" Ed. 2d 731, 89 S. Ct. 733 (1969). In other words, ideas and thoughts may be conveyed by nonspeech symbols as well as - c': - words, and those symbolic expressions are fully protected , by the First Amendment. Baring of breasts in public may ti.4 v '"e fit_' 1, 214 OCTOBER TERM, 1989 ;• - FW/PPS, INC. v. DALLAS - 215 Opinion of the Court 493 U. S. . ,� ` Syllabus = 2 it at issue here are less plausibly regarded as income than lease F `' , , deposits would be. The typical lease deposit secures the ;t,':,-t4 ;< • FW/PBS, INC., DBA PARIS ADULT BOOKSTORE II, s. tenant's,fulfillment of a contractual obligation to pay a speci- :'-.,?,-1, tt. ET.AL. V. CITY OF DALLAS ET AL. x fled rent throughout the term of the lease. The utility -;, 4, k customer, however, makes no commitment to purchase any ,, •- f CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR If services at all at the time he tenders the deposit. ,.r ; THE FIFTH CIRCUIT s. We recognize that IPL derives an economic benefit from ": : No. 87-2012. Argued October 4, 1989—Decided January 9, 1990* '11 1,T„ rl these deposits. But a taxpayer does not realize taxable in- x,<, -v}-. ,:tF:, 4,:i;;,;1,. Respondent city of Dallas adopted a comprehensive ordinance regulating come from every event that improves his economic condition. °>.,,. 7��,. "adult"_.,tea "sexually oriented businesses, which are defined to include adult ar- I�� A customer who makes this deposit reflects no commitment ` ; • ' '' ;4t, "4 ,:1 cades, bookstores, video stores, cabarets, motels, and theaters, as well I I ':,,, .E' a':'• as escort agencies, nude model studios, and sexual encounter centers. to purchase services, and IPL's right to retain the money is �;.,�;.,-_;. ;,, g ' •: ^h s" Amongother thins the ordinance requires that such businesses be li- contingent upon events outside its control. We hold that 4:a• things,: q :,:� c :A;: censed and includes civil disability provisions prohibiting certain individ- o such dominion as IPL has over these customer deposits is in- E-,=�. ;` .1 ;,1�, uals from obtaining licenses. . Three groups of individuals and busi- sufficient for the deposits to qualify as taxable income at the ,r".1 'j b; ";' :I u.i.• nesses involved in the adult entertainment industry filed separate suits ,I time they are made. lwi,a *challenging the ordinance on numerous grounds and seeking injunctive 11, The judgment of the Court of Appeals is affirmed. , ' 4. t_;. and declaratory relief.. The District Court upheld the bulk of the ordi- ;f $`•``,c 3 nance but struck down several subsections, and the city subsequently ;0: It is so ordered. - •;, ' amended the ordinance in conformity with the court's judgment. The :,'.•.;s.-,r7. a• Court'of Appeals affirmed, holding, inter alia, that the ordinance's li- 1 a • �.?4;„I N censing scheme did not violate the First Amendment despite its failure : i, <, "' ,` ,; to'provide the procedural safeguards set forth in Freedman v. Mary- 11 - .. I` ; • land, 380 U. S. 51, and that its civil disability provisions and its provi- .:',:',,,,1 r"" sion requiring licensing for"adult motel owners"renting rooms for fewer :`'` - t: than 10 hours were constitutional. '1 �'ti` i,5' ;y.' "`;. Held: The judgment is affirmed in part, reversed in part, and vacated in n " t�'.. part, and the cases are remanded. 1a,' * r.:, , i y r.z` 837 F. 2d 1298, affirmed in'part, reversed in part, vacated in part, and .:." ; remanded. :?"•.,:• ' :' JUSTICE O'CONNOR delivered the opinion of the Court with respect to ,,k . - .4.:-" : Parts III and IV, concluding.that: ;t, . 1. No petitioner has shown standing to challenge (1) the ordinance's ! ' .- . {= ?,,,, ' provision which prohibits the licensing of an applicant who has resided ' t;7 "y•• with an individual whose license application has been denied or revoked, • C , :': or (2) the civil disability provisions, which disable for specified periods ' those who have been convicted of certain enumerated crimes, as well as i 143 F. 2d 912 (CA2), cert. denied, 323 U. S. 750 (1944); Mantell v. Corn- ,`. - ' those whose-spouses have been so convicted. The record does not re- missioner, 17 T. C. 1143 (1952); Gilken Corp. v. Commissioner, 10 T. C. ,';;. ;r -' ' 445 (1948), aff'd, 176 F. 2d 141 (CA6 1949). These cases all distinguish 3 .. "ii .;i':'" *Together with No. 87-2051, M. J. R., Inc., et al. v. CityofDallas, w between advance payments and security deposits, not between deposits +:- :"-i and No. 88-49,Be et al. v. CityofDallas et al.,also on certiorari to the that do and do not secure income-producing covenants. ,:•;a• -":4..: p g .` `�:X Y.a�: same court. {r+ ->Y 4 • • ' 216' OCTOBER TERM, 1989 s., .}' FW/PBS, INC. v. DALLAS • 217 `X +4%n f; Syllabus 493 U. S. ''' ' 215 Syllabus veal that any petitioner was living with an individual whose application `''`it. will not consider the motel owners'privacy and commercial speech chal- was denied or whose license was revoked. Moreover, although the rec- `' lenges, since those issues were not pressed or passed upon below. 'v:.Cs.yf 'ord reveals one individual who potentially could be disabled under the ' .arf Pp. 236-238. spousal conviction provision,thdt person is not herself a license applicant JUSTICE O'CONNOR, joined by JUSTICE STEVENS and JUSTICE KEN- or a party to this action. Even if she did have standing, however, ,; x + NEDY,concluded in Part II that the ordinance's licensing scheme violates her claim would now be moot, since the city council deleted from the ;• x" the First Amendment, since it constitutes a prior restraint upon pro- list the crimes of which her husband was convicted after the District `:- * r'.. tected expression that fails to provide adequate procedural safeguards as Court ruled that the inclusion of such convictions was unconstitutional. :;:'`'°rI(? required by Freedman, supra. Pp. 223-230. Furthermore, although one party stated in an affidavit that he had been r• ;:i 3:.:. •(a) Petitioners may raise a facial challenge to the licensing scheme. convicted of three enumerated misdemeanors, he lacked standing, since ., ' Such challenges are permitted in the'First Amendment context where he failed to state when he had been convicted of the last misdemeanor or ` ,f.+" the scheme vests unbridled discretion in the decisionmaker and where : :',:i ,`,, the regulation is challenged as overbroad. Petitioners argue' that the the date of his release from confinement and, therefore, has not shown t'`,i `S'" licensing scheme fails to set a time limit within which the licensing au that he is still within the ordinance's disability period. This Court cannot f _'Y' rely on the city's representations at oral argument that one or two of the • . rely `' '' ' thority must act. Since Freedman, supra, at 56-57, held that such a petitioners had been denied licenses based on convictions, since the nee- ,',+`,'i.`,;.;•,: failure is a species of unbridled discretion, every application of the ordi- essary factual predicate must be gleaned from the recor below. Simi- ,, ,,t'' nance creates an impermissible risk of suppression of ideas. Moreover, larly, the city's affidavit indicating that two licenses were revoked for `'''~1 ` ?: the businesses challenging the licensing scheme have a valid First convictions is unavailing, since the affidavit was first introduced in this :'::' ti' s;: Amendment interest. Although the ordinance applies to some busi- Court and is not part of the record,and,in any event,fails to identify the .., r. nesses that apparently are not protected by the First Amendment— individuals whose licenses were revoked. Because the courts below ' .f'4 z'. e. g., escort agencies and sexual encounter centers—it largely targets lacked jurisdiction to adjudicate "'= -, i_ ; businesses purveying sexually explicit speech which the city concedes for petitioners' claims, the Court of Ap- };. =5:�r peals'judgment with respect to the disabilitya-`,: -, ,...• P provisions is vacated and ";ate _ .{ ' k,, purposes of this litigation are protected by the First Amendment. the court is directed to dismiss that portion of the suit. Pp. 230-236. . .• ., 4' While the city has asserted that it requires every business—regardless k. III tic_: 2. The ordinance's provision requiring licensing for motels that rent tk ''t{""' of whether it engages in First Amendment protected speech—to obtain rooms for fewer than 10 hours is not unconstitutional. The motel owner :, ' 'T•,tal•;..,t3' a certificate of occupancy when it moves into a new location or the use of " ' • ""'t the structure changes, the challenged ordinance nevertheless is more petitioners'contention that the city has violated the Due Process Clause by failing to produce adequate support for its supposition `t, T" ' �` q PP that renting •,,,..*' *;„. �„, onerous with•respect to sexually oriented businesses,which are required rooms for fewer than 10 hours results in increased crime or other sec- r.e, :�`_ to submit to inspections—for example,when their ownership changes or ondary effects is rejected. As the Court of Appeals recognized, it was • ; when they apply for,the annual renewal of their permits—whether or not } 4 they have moved or the use of their structures has changed. Pp. 223-225. reasonable to believe that shorter rental time periods indicate that the, �•' �;' �',�.� ,:;,: "*.�;''`.+` ' .;x,' (b) Freedman, supra, at 58-60, determined that the followingroce- motels foster prostitution, and that this type of criminal activity is what � '� � �'�;rt;:,� Fy+' � the ordinance seeks to suppress. The reasonableness of the legislative s.'f '.' l ` dural safeguards were necessaryexpeditious P g PP � � . to ensure decisionmaking judgment, along with the Los Angeles study of the effect of adult motels : '' 1}-`-• r1' •-=":•:; by a motion picture censorship board: (1) any restraint prior to judicial on surroundingneighborhoods that was before the citycouncil when it • , •• r,,Y ;e:: review can be imposed only for a specified brief period during which the g passed the ordinance, provided sufficient support for the limitation. sh`� I' ='- status quo must be,maintained; (2) expeditious judicial review of that Also rejected is the assertion that the 10-hour limitationplaces an y decision must be available; and (3) the censor must bear the burden of .r':'{ '';'fit=',`.•'•• goingto court to suppress the speech and must bear the burden of roof unconstitutional burden on the right to freedom of association recognized •{•y •_'; ., PP P P { in Roberts v. United States Jaycees,468 U. S. 609,.618. Even assuming f;'r: ,..1.-., .; once in court. Like a censorship system, a licensing scheme creates the that the motel owners have standing to assert the associational rights of cr =-` •y -1`- possibility that constitutionally protected speech will be suppressed motel patrons, limiting rentals to 10 hours will not have any discernible "Y • • f`',,_'' ` where there are inadequate procedural safeguards to ensure prompt effect on the sorts of traditional personal bonds considered in Roberts: '' ,,?"�:: ' ' issuance of the license. Thus, the license for a First Amendment- those that play a critical role in the Nation's culture and traditions •• ,: ••' ,, . protected business must be issued in a reasonable period of time, and, by cultivating and transmitting shared ideals and beliefs. This Court; ', .*P.' *,;. , ?` ; accordingly,the first two Freedman safeguards are essential. Here,al- • r ' t sr. a :, t+f, _'� of s <,. • :•; 1s. ,.. ',,..+..c _ _ ;218 OCTOBER TERM, 1989 -` L FW/PBS, INC. v. DALLAS 219 j; Syllabus 493 U. S. lK+ `. 215 Syllabus is ' though the Dallas ordinance requires the chief of police to approve the Ala ,., dining to require the third Freedman safeguard—that the Dallas scheme 11: "'' does not requireengage presumptively i • ,' issuance of a license within 30 days after receipt of an application,it also rg. an administrator to en a e in theInvalid �,••1 task of passingjudgment on whether the content ofparticular speech is 15 conditions such issuance upon,aliproval by other municipal inspection r ;: j gin P ,, agencies without setting forth time limits within which those inspections ;:.. ;i.;; protected, and that it licenses entire businesses, not just individual must occur. Since the ordinance therefore fails to provide an effective 'ei.i films, so that applicants will not be inclined to abandon their interests— time limitation on the licensing decision, and since it also fails to provide - ''. do not distinguish the present litigation from Riley, where the licensor an avenue for prompt judicial review so as to minimize suppression of7= was not required to distinguish between protected and unprotected 31 speech in the event of a license denial, its,licensingrequirement is un- ::: speech, and where the fundraisers had their entire livelihoods at stake. �. constitutional insofar as it is enforced against those businesses engaged = Of: Moreover, the danger posed by a license that prevents a speaker from in First Amendment activity, as determined by the court on remand. ; ,; speaking at all is not derived from the basis on which the license was However, since the licensing scheme at issue is significantly different •' ' :., purportedly denied, but is the unlawful stiffing of speech that results. 1 C�'-.,i Thus,there are no relevant differences between the fundraisers in from the censorship system examined in Freedman, it does not present �,._ ,.. Riley fi+ri;' and theprotecting speech,grave dangers of such a system, and the First Amendment does not - =;:��1 petitioner's here, and in the interest of rotectin s eech the require that it contain the third Freedman safeguard. Unlike the • ,. burdens of initiating judicial proceedings and of proof must be borne by Freedman censor,Dallas does not engage in presumptively invalid direct 4 ,, the city. Pp. 239-242. censorship of particular expressive material, but simply performs the ':. ` i• O'CoNNo#I, J., announced the judgment of the Court and delivered the ministerial action of reviewing the general qualifications of each license :4N•:_ ;;,,,, •opinion of the Court with respect to Parts I and IV, in which REHNQuisT, applicant. •It therefore need not be required to carry the burden of .;r€r.;',; :1! ' C. J. and WHITE, STEVENS"SCALIA and KENNEDY,JJ.,joined,the o in going to court or of there justifying a decision to suppress speech. ,°_ ` Ar;,~ p Moreover, unlike the motion picture distributors considered in Freed- .'., '''',' ion of the Court with respect to Part III,in which REHNQUIST, C. J. and '`" " WHITE SCALIA,and KENNEDY,JJ., Dined and an opinion with respect to man—who were likely to be deterred from challenging the decision to L j R.,,. Part II, in which STEVENS and KENNEDY, JJ., joined. BRENNAN, J. suppress a particular movie if the burdens of going to court and of proof :' :.s ` • were notplaced on the censor—the license applicants under the Dallas '`p'' • `.'' filed an opinion concurring in the judgment, in which MARSHALL and i pp :: y BLACKMUN,JJ.,joined,post, p. 238. WHITE,J., filed an opinion concur- scheme have every, incentive to pursue a license denial through court, :'»?":`; ' ; �,..�;,r ring in part and dissenting in part, in which REHNQUIST, C. J., joined, since the license is the key to their obtaining and maintaining a business. ,t1 ,F 'f, ;;- post,p. 244. STEVENS,J.,post,p. 249,and SCALIA,J.,post,p. 250,filed !i Riley v. National Federation of Blind of N. C., Inc., 487 U. S. 781, is }]a, *' i opinions concurring in part and dissenting in part. ` not dispositive of this litigation, since, although it struck down a licens k1 , -e ing scheme for failing to provide adequate procedural safeguards, it did : , x,• ' t.: John H. Weston argued the cause for petitioners in all k :t p.Ns‘'a-p I I not address the proper scope of procedural safeguards with respect to x 4 p cases. With him on the briefs for petitioners in No. 87-2051 1 such a scheme. Since the Dallas ordinance summarily states that its 1: ,�;, were G. Randall Garrou, Cathy E. Crosson, and Richard L. terms and provisions are severable, the Court of Appeals must, on re- "'Y'" pp -' - t r,;: •,,'•,• Wilson. Arthur M. Schwartz filed briefs for petitioners in mand, determine to what extent the licensing requirement is severable. .,,(;., -'g:''' ,} '"' , No. 87-2012. Frank P. Hernandez filed a brief for petition- { Pp. 225-230. ps ,fi :..: I!{ JUSTICE BRENNAN, joined by JUSTICE MARSHALL and JUSTICE ,�� h,i 4l r, .,'.. ers in No. 88-49. , . ` ' Analeslie Muncyargued the cause for respondents in all BLACKMUN, although agreeing that the ordinance's licensing scheme is :, �l,,k�,'-.41-, p invalid as to any First Amendment-protected business under the Freed i, ';I cases. With her on the brief were Kenneth C. Dippel and j man doctrine, concluded that Riley mandates application of all three of .,_r-F •, • i:' 1 r,• Thomas P. Brandt.t the Freedman procedural safeguards, not•just two of them. Riley v. :• `�'w''','' National Federation of Blind of N. C., Inc., 487 U. S. 781, 802, applied r•,- 4-1 , -, tBriefs of amid curiae urging reversal were filed for the American • Freedman to invalidate a professional licensingscheme with respect to '. 2:• ''' ''°'' 3 ''' Booksellers Association, Inc., et al. by Michael A. Bamberger; and for charity fundraisers who were engaged in First Amendment-protected *• ,;,.:••; - PHE, Inc. byBruce J. Ennis, Jr. and Mark D. Schneider. i '1 activity,ruling that the scheme must require that the licensor—i. e.,the g . S > Briefs of amici curiae urging affirmance were filed for the American Fam- i State, not the would-be fundraiser—either issue a license within a speci- sip : i .ily Association,Inc.,by Peggy M. Coleman;for the Children's Legal Foun- 1 fled brief period or go to court. The principal opinion's grounds for de- : ,,, r" y , dation by Alan E.Sears;for the National Institute of Municipal Law Officers i t .� u t T 4 •'A.•.L a f i 220 OCTOBER TERM, 1989 FW/PBS, INC. v.DALLAS - f 221 `= fir;; 0 inion of the Court 493 U. S. `';�,.4' .y 215 ' ; Opinion of the Court -, JUSTICE O'CONNOR announced the judgment of the Court ` , . ., tensing, and inspections; The ordinance also includes a civil - and delivered the opinion of.the Court with respect to Parts '?, if,,p' p - ��A. disability provision, which prohibits individuals convicted of I, III, and IV, and an opinion with respect to Part II, in % ;' certain crimes from obtaining a license to operate a sexually which JUSTICE STEVENS and JUSTICE KENNEDY join. - , oriented business for a specified period of years. These cases call upon us to decide whether a licensing ;,,. ,,l Three separate suits were filed challenging the ordinance scheme in a comprehensive city ordinance regulating sexually ,, ` ;. on numerous grounds •and seeking preliminary and perma- oriented businesses is a prior restraint that fails to provide ;;.,:a nnt injunctive relief as well as declaratory relief. Suits adequateprocedural safeguards as required b Freedman v. `'"w - . q q Y were brought by the following groups of individuals and busi- Ma land 380 U. S. 51 (1965). We must also decide , ,-4 : , 11 nesses: those involved in selling, exhibiting, or distributing whether anypetitioner.has standingto address the ordi- ', '-i: �,.: ' a`; publications or video or motion picture films; adult cabarets nance's civil disability provisions, whether the city has suffi- >,. r;.;, . ..,,-. or establishments providing live nude dancing or films, mo- cientlyjustified its requirement that motels rentingrooms ' ; = q 14 '; tion pictures, videocassettes, slides, or other photographic Y'y`. for fewer than 10 hours be covered by the ordinance, and ::`rh 1 x:� : , reproductions depicting sexual activities and anatomy speci- whether the ordinance impermissibly infringes on the right to fled in the ordinance;and adult motel owners. Following ex- freedom of association. As this litigation comes to us, no 1'<<: pedited discovery, petitioners' constitutional claims were re- issue is presented with respect to whether the books, videos, ..t t :;. solved through cross-motions for summary judgment. After materials, or entertainment available through sexually ori- r. .t :: ented businesses are obscene pornographic materials. ,_`''.5f .+,`. a hearing, the District Court upheld the bulk of the .ordi- <:x, ;; ; . I . � R( ',- � nance, striking only four subsections. See Dumas v. Dallas, • �"..; t` .j... 648 F. Supp. 1061 (ND Tex. 1986). The District Court On June 18, 1986, the city council of the city of Dallas unan- ':t",V-i 1, -° }- struck two subsections, §§41A-5(a)(8) and 41A-5(c), on the imouslyadopted Ordinance No. 19196 regulating sexually '.• .r� "` p g ; ;, ,,• .. '; .;, ' ground that they vested overbroad discretion in the chief of oriented businesses, which was aimed at eradicating the sec- _; � police, contrary,to our holding in Shuttlesworth v. Binning- ondary ondary effects of crime and urban blight. The ordinance, as ,, `. �' ..F;: ham, 394 U. S. 147 150-151 (1969). See 648 F. Supp., at amended, defines a "sexuallyoriented business" as "an adult 44 � .w" ' x i, 4 1072-1073. The District Court also struck the provision that arcade, adult bookstore or adult video store, adult cabaret, ::k} `' ;;;-.0. f�4.:. imposed a civil disability merely on the basis of an indictment adult motel, adult motionpicture theater, adult theater, es-, .4 , =. " „ ' ° or information, reasoning that there were less restrictive al- cort agency, nude model studio, or sexual encounter center." ,.;;a.` ; �,; ; • ternatives to achieve the city's goals. See id., at 1075 (citing Dallas CityCode, ch. 41A, SexuallyOriented Businesses t ` r ` 7 1''il: United States v O'Brien, 391 U. S. 367(1968)). Finally, the §41A-2(19) (1986). The ordinance regulates sexually ori- • • _ - District Court held that five enumerated crimes from the list ented businesses through a scheme incorporating zoning, li- , - °, .. ;4., „t, .t°' ,;•`=4''; ;,,;,�. hof�those creating civil disability were unconstitutional be- by William I. Thornton, Jr., Frank B. Gummey III, and William H. , ` .::, ,= ,cause they were not sufficiently related to the purpose of the Taube;and for the U. S. Conference of Mayors et al. by Benna Ruth Solo- - ;- #-- - n..:: " ;•_ ,, * ''ordinance. See 648 F. Supp., at 1074 (striking bribery,mon and Peter Buscemi. � f 4 rob- Bruce A. Taylor filed a brief for Citizens for Decency Through Law, ,, ; ": : berg,kidnaping, organized criminal activity, and violations of Inc., as amicus curiae. "Ftr. w ;controlled substances Acts). The city of Dallas subsequently `4tt_' Y ) y ,: 1 HY6,.% OCTOBER TERM, 1989 �:;: FWIPB i. ` ,? S, INC. v. DALLAS 223 Opinion of the Court 493 U. S. 4 `fi`'? � r` ;-,o�'f - 215 Opinion of O'CorrNox,J. amended the ordinance in conformity with the District Court's j r ?: judgment. �� .. . 1042 (1988), and granted certiorari, 489 U. S. 1051 (1989). •i, • ,,. _ ' We now reverse:in part and affirm in part. ' The Court of Appeals '` ¢` ' for the Fifth Circuit affirmed. 837 ;. l *;,s=;` r ' `I •sky*r:,.'. y, F. 2d 1298 (1988). Viewing the ordinance as a content- .'-- „ �T14''°'.:.. ' II neutral time, place, and manner regulation under Renton v. 'r: `t 7` " ``'V• Playtime Theatres, Inc., 475 U. S. 41 (1986) the Court of `�`_ s ,`,:" We granted certiorari on the issue whether the licensing €kr�Y.• scheme is an unconstitutional prior restraint that fails to pro- Appeals upheld the ordinance against petitioners' facial at- "�° ' tack on the ground that it is "`designed to serve a substantial ra; ; �[ Y Y,Y vide'adequate procedural safeguards as required by Freed- �'; government interest" and allowed for "`reasonable alterna- V x- man v. Maryland, 380 U. S. 51 (1965). Petitioners involved tive avenues of communication."' 837 F. 2d, at 1303 • k [ :; in the adult entertainment industry and adult cabarets argue (quot- ; , '„` that the licensing scheme fails to set a time limit within which 1 ing Renton, supra, at 47). The Court of Appeals further 4 441 74k concluded that the licensing scheme's failure to provide the ' '" the licensing authority must issue a license and, therefore, creates the likelihood of arbitrary denials and the concomi- procedural safeguards set forth in Freedman v Maryland, , • - tant suppression of speech. Because we conclude that the f supra, withstood constitutional challenge, because such ro- } , cedures are less important when regulating "the conduct of ;�.. , ;,( a;: city s licensing scheme lacks adequate procedural safeguards, .; `,+ . we do not reach the issue decided by the Court of Appeals an ongoing commercial enterprise. 837 F. 2d, at 1303. r, �• , whether the ordinance is properly viewed as a content- Additionally, the Court of Appeals upheld the provision of ii .,-.r ..�:, .,:, �• :;, .��;:-: neutral time, place, and manner restriction aimed at second- the ordinance providing that motel owners renting rooms for .':;;` # , 5',{} ary effects arising out of the sexually oriented businesses. ;'' fewer than 10 hours were "adult motel owners" and as such ,ff; r were required to obtain a license under the ordinance. See .,` ; ' ` * �r Cf. Southeastern Promotions, Ltd. v. Conrad, 420 U. S. 546, „ `� , ". a . 562 (1975). §§41A-2(4), 41A-18. The motel owners attacked the prove �' '�•x'r ; � � ° � '' sion on the ground that the city had made no finding that . • -h'r . A is } .:r>. adult motels engendered the evils the city was attempting to fF,,;. � We note at the outset that,r•- }r, _i,,.. petitioners raise a facial chal- adult :;;= lenge to the licensing scheme. Although facial challenges to redress. The Court of Appeals concluded that the 10-hour ,:' �, H ; A�, : , was based on the reasonable supposition that short '�3 "' '`' " legislation are generally disfavored, they have been permit- limitationpp `� ' a r rental periods facilitate prostitution, one of the secondary 2` ° d ted'in the First 'Amendment context where the licensing' effects the city was attempting to remedy. See 837 F. 2d, at .p�'. -a" :.:,` •_ : '' ; scheme vests unbridled discretion in the decisionmaker and 1304. s ,4 ;t, �-:,,t= , .where the regulation is challenged as overbroad. See City Finally, the' Court of Appeals upheld the civil disability `J ,,,,if r` { Council of Los Angeles v Taxpayers for Vincent, 466 U. S. "`i5 mo provisions, as modified by the District Court, on the ground . r G , 7§9, 798, and n. 15 (1984). In Freedman, we held that the. that the relationship between "the offense and the evil to be . ;; %«";� -hs si' ,, %:,failure to place limitations on the time within which a cen- 1 regulated is direct and substantial." Id., at 1305. , x' : # `usorship board decisionmaker must make a determination of Freed- We granted petitioners' application for a stay of the man- _ ; K obscenity is a species of unbridled discretion. See date except for the holding that the provisions of the .4., ' ' 4"#'�`'-," n, supra, at 56-57 (failure to confine time within which ordinance regulating the location of sexually oriented busi- F r `• „5 censor must make'decision "contains the same vice as a stat- r F-r. I• nesses do not violate the Federal Constitution, 485 U. S. : 's �, :;.#,M ute delegating excessive administrative discretion"). Thus, • ,- ti where a scheme creates a "[r]isk of delay," 380 U. S., at 55, �' 224 - OCTOBER TERM, 1989 FW/PBS,•INC. v. DALLAS 225 w' ' + . 215 Opinion of O'CONNOR,J. 493 • U. S. •,,_, Opinion of O'CONNOR,J. ;"ilsi °.> ';: The city asserted at oral argument that it requires every ,;; such that"every application of the statute create[s] an imper- ,, - missible risk of suppression of ideas," Taxpayers for Vincent, , ="" ' `"_., business—without,regard to whether it engages in Firstf, • ,'`?,* , Amendment-protected speech—to obtain a certificate of oc- 'if supra, at 798, n. 15, we have permitted parties to bring facial ;: ;.. , Gib; .„.• r ;; cupancy when it moves into a new'location or the use of the ., ,,, challenges. MA: . , �: ;. >4 " .t., structure changes.' Tr. of Oral Arg. 49; see also App. 42, ,,,,,, The businesses regulated by the city s licensing scheme f .: .�;:a Dallas CityCode §51-1.104 (1988) (certificate of occupancy i;., include adult arcades (defined as places in which motion pie- N IJt- t, ,,f,,zs': p ,3 •.,,- . . v,..:. . required where there is new construction or before occu- tures 3� are shown to five or fewer individuals at a time, see `.q ,; pancy if there is a change in use). Under the challenged or- ' §41A-2(1)), adult bookstores or adult video stores, adult cab- • fi: a':: i`; arets, adult motels, adult motion picture theaters, adult the- ,, 4,,i-;X x• rV, dinance, however, inspections are required for sexually ori- ' . ented businesses whether or not the business has moved into aters, escort agencies, nude model studios, and sexual en- :,,-,;t,, , s ,>'.. -r; ; a new structure and whether or not the use of the structure ;;f ;;,: counter centers, §§41A-2(19) and 41A-3. Although the '`""y 4, �' `� gassuming `;x' g : ;;;,T: sx;:' _ has changed. Therefore, even the correctness ofJ. ordinance applies to some businesses that apparently are not ;;[c'f?" .' the city's representation of its "general" inspection scheme, protected by the First Amendment, e. g., escort agencies and kt -:.,,,- the scheme involved here is more onerous with respect to sexual encounter centers, it largely targets businesses pur- ? ,,. 1. 'A . sexually oriented businesses than with respect to the vast }a veying sexually explicit speech which the city concedes for `y ��"`}',' j y p p ;-1., •.,.ii:i'i ma orit of other businesses. For exam le ins ections are s purposes of these cases are protected by the First Amend- , -,:'`:, ,required whenever ownership of a sexually oriented business ment. Cf. Smith v. California, 361 U. S. 147, 150 (1959) _ X 1 changes, and when the business applies for the annual re- (bookstores); Southeastern Promotions, Ltd. v. Conrad, :':r:",?'•'' "�41-,- -�:: -.: newal of its permit- We, therefore, hold, as a threshold mat- -1 supra (live theater performances); Youngv. American Mini .,Vz 'x,` ,/ ';",' ter, that petitioners may, raise a facial challenge to the 11 p p '' S=ti> licensin scheme, and that as the suit comes to us, the busi- ; . Theatres, Inc., 427 U. S. 50 (1976) (motion picture theaters); ,, ;+, if,;^, g ,, _, Schad v. Mount Ephraim, 452 U. S. .61 (1981) (nude danc- ,:-F ;;•:"- �-�: ' ' nesses challenging the scheme have a valid First Amendment r:. iri As JUSTICE SCALIA acknowledges, post, at 262, the F '' ;- `` interest. �' g)• g , f. city does not argue that the businesses targeted are engaged :' ti "°; "', ;- B ; r in purveying obscenit which is unprotected bythe First '"' P Yi g Y p '; Y - ,,,? 5 C i,`-'•',While "[p]rior restraints are not unconstitutional per se u Amendment. See Brief for Respondents 19, 20, and n. 8 ' " '`!` °' ', a n s stem of rior restraint . . . comes to this Court 1 fr4 ( [T]he city is not arguing that the ordinance does not raise J Til,..,- ;bearing a heavy presumption against its constitutional va- :,; First Amendment concerns . . . . [T]he right to sell this ma- , "' 4 "' . -- lidity." Southeastern Promotions, Ltd- v. Conrad, supra, i 1 ` terial is a constitutionallyprotected right . . ." See also _as' '[ - `' ,tat'558. See, e. Lovell v. Griffin, 303 U. S. 444, 451-452 1 '-';: Miller v. California, 413 U. S. 15, 23-24.(1973). Nor does ..`i..,r'.> ', x ' , ,..;.(1938); Cantwell v. Connecticut, 310 U. S. 296, 306-307 ;a the city rely upon Ginzburg v. United States, 383 U. S. 463 ,-h •'K :4, .. ,. ;(1940); 'Cox v. New Hampshire,. 312 U. S. 569, 574-575 °i (1966), or contend that those businesses governed by the or- •* ' (1941); Shuttlesworth v. Birmingham, 394 U. S., at 150-151. dinance are engaged in pandering. It is this Court's practice ;' '''' . , .§ - ,,. ,Qur.:cases addressing prior restraints have identified two ' ;.`t.' :,. 4 "`evils-that will not; be tolerated in such schemes. First, a I" P. to decline to review those issues neither pressed nor passed _ ;1 , ,-.-4 f-,;.1.4' . upon below. See Youakim v. Miller, 425 U. S. 231, 234 `' .-' �; ;;scheme that places "unbridled discretion in the hands of a ... (1976) (per curiam). :,,,,, ;" , ,,fi: �;�.� .« • ; ., �,�. ,_,_;,government official or agency constitutes a prior restraint a �., :.rj. ` tlb ram,. _ 4 h."" 226 OCTOBER TERM, 1989 ` ` •` FWIPBS, INC. v. DALLAS 227 Opinion of O'CONNOR, J. 493 U. S. q,' ,--.="';. 215 Opinion of O'CONNOR, J. :^ ,Tiff • and may result in censorship." Lakewood v. Plain Dealer - ;� �‘..: ing excessive administrative discretion," Freedman, supra, Publishing Co., 486 U. S. 750, 757 (1988). See Saia v. New :.t�,-.,..Y at 56-57. Where the licensor has unlimited time within York, 334 U. S. 558 (1948);Niemotko v. Maryland, 340 U. S. M'.; which to issue a license, the risk of arbitrary suppression is as 268 (1951); Kunz v. New York,-340 U. S. 290 (1951); Staub v. ,:---;, - ,,,; great as the provision of unbridled discretion. A scheme that City of Baxley, 355 U. S. 313 (1958); Freedman v. Mary- :y: 1 ' „ • fails to set reasonable time limits on the decisionmaker cre- land, 380 U. S. 51 (1965); Cox v. Louisiana, 379 U. S. 536 " -, ° ,`, ates the risk of indefinitely suppressing permissible speech. (1965); Shuttlesworth v. Birmingham, supra; Secretary of A:)' ,:1 ,.. Although the ordinance states that the"chief of police shall State of Maryland v. Joseph H. Munson Co. 467 U. S. 947 approve the issuance of a license by the assessor and collector (1984). "`It is settled by a long line of recent decisions of this ', , ,.c.,; of taxes to an applicant within 30 days after receipt of an Court that an ordinance which . . . makes the peaceful enjoy- .,''ot ;'; application," the license may not issue if the "premises to be ment of freedoms which the Constitution guarantees contin- - -'>, y+ �' used for the sexuallyoriented business have not been ap- gent upon the uncontrolled will of an official—as by requiring >;B t: j:;.�: proved by the health department, fire department, and the a permit or license which may be granted or withheld in the " ,/ '`a..` building official as being in compliance with applicable laws discretion of such official—is an unconstitutional censorship _ .i ;- .., and ordinances.": §41A-5(a)(6). Moreover, the ordinance �• or prior restraint upon the enjoyment of those freedoms." :;:;•;�ry I �.;f;a' does not set a time limit within which the inspections must ,' Shuttlesworth, supra, at 151 (quoting Staub, supra, at 322). x''5' ';• ~ .,..;: occur. The ordinance provides no means by which an appli- Second, a prior restraint that fails to place limits on the ";,.' ' ;• :`1*,i,:_ cant may ensure that the business is inspected within the 30- time within which the decisionmaker must issue the license is u cs , i• day time period within which the license is purportedly to be impermissible. , Freedman, supra, at 59; Vance v. Universal :: -!•• '"1 • .y.''. : issued if approved. The city asserted at oral argument that Amusement Co., 445 U. S. 308, 316 (1980) (striking statute k .7 - ',k when applicants apply for licenses, they are given the tele- on ground that it restrained speech for an "indefinite dura- '1.: „;. ' : phone numbers of the various inspection agencies so that tion"). In Freedman, we addressed a motion picture censor- : ` `'.• r=' :>, : . : they may contact them. . Tr. of Oral Arg. 48. That meas- ship system that failed to provide for adequate procedural :.;: 'i ;';•''. ,':s .: ure, obviously, does not place any limits on the time within ;1 safeguards to ensure against unlimited suppression of con- ,4 -1;', :;,. ,';u'-; '._ ' 'which the city will inspect the business and thereby make the stitutionally protected speech. 380 U. S., at 57. Like a .' :F;' {x business eligible for the sexually oriented business license. censorship system, a licensing scheme creates the possibility ,'' ,'-' , .Thus, the city's ',regulatory scheme allows indefinite post- that constitutionally protected speech will be suppressed ' ; " . ` ponement of the issuance of a license. where there are inadequate procedural safeguards to ensure 4.4. - ' '': In Freedman, we determined that the following three pro- prompt issuance of the license. In Riley v. National Fed- k";: *, , cedural safeguards were necessary to ensure expeditious de- eration of Blind of N. C., Inc., 487 U. S. 781 (1988), this �;Y., ;•. ,�`,' ,.4,7,,;;,.:=cisionmaking by the motion picture censorship board: (1) any Court held that a licensing scheme failing to provide for defi- ..',.,', 1:!..‘:'' , ".,:'; ,.restraint prior to judicial review can be imposed only for a Hite limitations on the time within which the licensor must ,ta'e•, -r;,� s W 'specified brief period during which the status quo must be issue the license was constitutionally unsound, because the =':,. -_ 4 -F';.:_;- maintained; (2) expeditious judicial review of that decision "delay compel[led] the speaker's silence." Id., at 802. The } ? " • ;a' -'must'be available; and (3) the censor must bear the burden failure to confine the time within which the licensor must . '5 Y h 'of going to court to suppress the speech and must bear the make a decision "contains the same vice as a statute delegat- -_ :; ` 4;• ';€4' :p r' ,,,:burden of proof •once in court. Freedman, supra, at 58-60. . av: ,54 228 • OCTOBER TERM, 1989 `s-�• , , I III !'� Y, . FW/PBS, INC. v. DALLAS 229 I '' Opinion of O'CONNOR,J. 493 U. S. ''» ;• {' 215 Opinion of O'CONNOR,J. fF :4,.:''' Although we struck the licensingprovision in Riley . Na- = l �:'. g ;,; , �1;;, Moreover; a censorship system creates special concerns for tional Federation of Blind of N. C., Inc., supra, on the , .,� the protection of speech, because "the risks of freewheeling I. ground that it did not adequateproceduralr `''' provide safe- ';;;'y,��`a:'' censorship are formidable." Southeastern Promotions, 420 guards, we did not address the proper scope of procedural w" P p p .` !. U. S. at 559. ' safeguards with respect to a licensing scheme. Because the ',-t. As discussed supra, the Dallas scheme does not provide for , licensing scheme at issue in these cases does not present the ;;." :!:; an effective limitation on the time within which the licensor's I grave "dangers of a censorship system," Freedman, supra, decision must be made. It also fails to provide an avenue for i at 58, we conclude that the fullproceduralprotections set _ '..'_ prompt judicial review so as to minimize suppression of the forth in Freedman are not required. • r . ;r :: speech in the event a license denial. We therefore hold The core policy underlying Freedman is that the license for ';:•.• that the failure to provide these essential safeguards renders ' a First Amendment-protected business must be issued within ' C:I the ordinance's licensingrequirement unconstitutional inso- q a reasonableperiod of time, because undue delayresults in '•,. 1 r: far as it is enforced against those businesses engaged in First 1 the unconstitutional suppression of protected speech. Thus, A' ' Amendment activity, as determined by the court on remand. f; the first two safeguards are essential: the licensor must make ?'+'• :-F<< The Court also required in Freedman that the censor bear I, the decision whether to issue the license within a specified `':-�p -: ,-,e, ' the burden of going to court in order to suppress the speech and reasonable time period during which the status quo is <•.{:; ` ' and the burden of proof once in court. The licensing scheme 4 r. maintained, and there must be the possibilityof prompt 'udi- . '; ; p p � � •, we examine todayis significantly different from the cen- cial review in the event that the license is erroneously de- `-•"I -:•.` Y Hied. See Freedman, at 51. See also Shuttlesworth, ' '�'= sorship scheme examined in Freedman. In Freedman, the I supra, H:1: ,4=,: censor engaged in direct censorship of particular expressive f' supra, at 155, n. 4 (content-neutral time, place, and manner ;;,;%:,_t.V ' - material. Under our First Amendment jurisprudence, such regulation must provide for "expeditious judicial review"); '" ; `;°•- Ji "�"" s, '`� regulation of speech is presumptively invalid and therefore, National Socialist Party of America v Skokie, 432 U. S. 43 -- ,I f,t,;-,,, . the censor in Freedman was required to carry the burden of 1:F (1977). -, ��4 : goingto court if the speech was to be suppressed and of'usti- ' ' The Court in Freedman also required the censor to go to - if ° p pp f ..h ` ;: lying its decision once in court. Under the Dallas ordinance, court and to bear the burden in court of justifying the denial. • 4t-- . j '!'' 't` >;:,_ ' the city does not exercise discretion by passing judgment on gumay provea' ,:..' , the content of any protected speech. Rather, the cityre- "Without these safeguards, it too burden- .' •=t'Y,1�;;,=',.-; some to seek review of the censor's determination. Par- r,,,*I6$: views the general qualifications of each license applicant, a ticularly the case of motionpictures, it maytake_ve ' `i`n .f in ry , `�'''s,��Y,-,: ministerial action that is not presumptively invalid. The little to deter exhibition in a given locality. The exhibi- �' ,�-,;>'' . ': Court in Freedman also placed the burdens on the censor, be- tor's stake in any one picture may be insufficient to war- }' 11,`r`r2, ° . `` ' cause otherwise the motion picture distributor was likely to F rant a protracted and onerous course of litigation. The ;3i ?'- -, be deterred from challenging the decision to' suppress the distributor, on the other hand, may be equally unwilling .. t' 'ii:� ' speech and, therefore, the censor's decision to suppress was to accept the burdens and delays of litigation in a par- i5.,; ,� "•lit;s • ".0. tantamount to complete suppression of the speech. The li- I titular area when, without such difficulties, he can freely r *,.; tf cense applicants under the Dallas scheme have much more at ;, exhibit his film in most of the rest of the country . . . ." .,. ";. :a `.stake than did the motion picture distributor considered in iz' 380 U. S. at 59. . 1.` _f.� i;,: Freedman, where only one film was censored. Because the ir+ar ' •,,, t Aw`Jy 'o- i.ti • �elip .-;rM1a - -R� :.C1: ' _ s.r."` -'., .� ill • I a',' a.; IFW/PBS, INC. v. DALLAS 1111 231 230 OCTOBER TERM, 1989 I Opinion of the Court 493 U. S. .; �` 215 Opinion of the Court , i P ;r i;' s!i license is the key to the applicant's obtaining and maintaining {`:;,r :. us. The federal courts are under an independent obligation i, a business, there is every incentive for the applicant to pur- -''' .;u; to examine their own jurisdiction, and standing "is perhaps sue a license denial through court. Because of these differ- ,. 4;I';I''!.'', the the most important of[the jurisdictional] doctrines." Allen ences, we conclude that the First Amendment does not re- a ',_,.`;;; ;;,�: x,w; v. Wright, 468 U. S. 737, 750 (1984). quire that the city bear the burden of going to court to effect x, F' i • the denial of a license application or that it bear the burden of ,:; ;( , "[E]very federal appellate court has a special obligation proof once in court. Limitation on the time within which the '_' ; to `satisfy itself not only of its own jurisdiction, but also ; -f • " . ' licensor must issue the license as well as the availability of that of the lower courts in a cause under review,' even ` prompt judicial review satisfy the "principle that the free- a Yy though the parties are prepared to concede it. Mitchell doms of expression must be ringed about with adequate bul- ,j _ '1,. v. Maurer, 293 U. S. 237, 244 (1934). See Juidice v. •: "�,:.;.! Vail, 430 U. S. 327, 331-332 (1977) (standing). `And if warks." Bantam Books, Inc. v. Sullivan 372 U. S. 58 66 r: ` '�'.�s- (1963). 1.-,t ; the record discloses that the lower court was without ; : Finally, we note that §5 of Ordinance No. 19196 summarily ''° .;,1,;;.: jurisdiction this court will notice the defect, although states that "[t]he terms and provisions of this ordinance are t the parties make no contention concerning it." Bender severable, and are governed by Section 1-4 of CHAPTER 1 ..;=;;t`- fi `. v. Williamsport Area School Dist., 475 U. S. 534, 541 of the Dallas City Code, as amended." We therefore remand : '_' ; ".'� ' (1986). to the Court of Appeals for further determination whether ¢ 1- �.F:.. I 1 .,. -:c. It is a long-settled principle that standing cannot beand to what extent the licensing scheme is severable. Cf. +:;�; ,: -�`_'�, ; ferred argumentatively from averments in the pleadings," "in- Lakewood v. Plain Dealer Publishing Co., 486 U. S., at 772 '1, . -.,, ' Ff `• a-i` Grace v. American Central Ins. Co., 109 U. S. 278, 284 (remanding for determination of severability). ,,• ,;,,,., ,.., , ., ° .,: (1883), but rather "must affirmatively appear in the record." III a '', >; Mansfield C. & L. M. R. Co. v. Swan, 111 U. S. 379, 382, We do not reach the merits of the adult entertainment and "`° (1884). See King Bridge Co. v. Otoe County, 120 U. S. 225, r 226 (18.87) (facts supporting Article III jurisdiction must"ap- adult cabaret .petitioners' challenges to the civil disability r .pea[r] affirmatively from the record"). And it is the burden provision, §41A-5(a)(10), and the provision disabling individ= z , of the "party who seeks the exercise of jurisdiction in his uals residing with those whose licenses have been denied or -'� •`.:�• ^-z = Y ` favor " McNutt v. General Motors Acceptance Corp., 298 revoked, §41A-5(a)(5), because petitioners have failed to `i`' •° "clearly show theyhave standingto challenge them. See Brief for '..=-' -1''''' ` ''. -: U. S. 178, 189 (1936), to allege facts demonstrating pp. „� 41 - • ., ,• that he is a.proper party to invoke judicial resolution of the Petitioners in No. 87-2051, 22-40, 44; Brief for Petition- -�,�,,:;- ers in No. 87-2012 12-20. Neither the District Court ; '•'"-'y =` dispute." Warth v. Seldin, 422 U. S. 490, 518(1975). Thus, eaI- { f.: . ' . ;'.i ;petitioners in this case must "allege . . . facts essential to nor the Court of Appeals determined whether petitioners had, :-•� „ - standing to challenge any particular provision of the. ordi- 'ss''• show jurisdiction.'' If[they]fai[1]to make the necessary alle- nance. Although neither side raises the issue here, we are - • gations, [they have] no standing." McNutt, supra, at 189. required to address the issue even if the courts below have,. ,,. .` y. The ordinance challenged here prohibits the issuance of a not passed on it,. see Jenkins v. McKeithen, 395 U. S. 411;,�;� 1 : ; •,1 , license to. an applicant who has resided with an individual 11 421 (1969), and even if the parties fail to raise the issue before fw:,:.;•' - ;t`i` �';whose.license application has been denied or revoked within 3 �.ti l' 11 232 OCTOBER TERM, 1989 FW/PBS, INC. v. DALLAS 233 ; Opinion of the Court 493 U. S. , 4 3 ,,. 215 Opinion of the Court the preceding 12 months.' The ordinance also has a civil y,,. ability period has elapsed, the applicant may not be denied a disability provision, which disables those who have been con- • ;;` t�_ license on the ground of a former conviction.. victed. of certain enumerated crimes as well as those whose : ,'r. Examination of the record here reveals that no party has spouses have been convicted of the same enumerated crimes. ' F, .:;a, standing to challenge the provision involving those residing This civil disability lasts for two years in the case of misde- ''''.x , ,1,.. with individuals whose licenses were denied or revoked. meanor convictions and five years in the case of conviction of t'` ` Nor does anypartyhave standingto challenge the civil r' ;'ti: ,:' g a felonyor of more than two misdemeanors within a 24-month ',. : disabilityprovision disablingapplicants who were either �, ..;� .,; Pp • period.2 Thus, under the amended ordinance, once the dis- - ,- convicted of the specified offenses or whose spouses were a . convicted. I i 'Section 41A-5(a)(5) provides as follows: "The chief of police shall ap- '' .,-:;.,.f,. First, the record does not reveal that any party before us !, prove the issuance of a license. . . unless he finds[that] . . . [a]n applicant ? ;'' ' } pp •f -,•:� was living with an individual whose license application was j is residing with a person who has been denied a license bythe cityto oper- •-e-4'=•' y • ' p „ .,`s' denied or whose license was revoked. Therefore, no party . ate a sexually oriented business within the preceding 12 months, or ss has 1-- • has standing with respect to §41A-5(a)(5). Second, §41A— ing with a person whose license to operate a sexually oriented business has ', L t 5(a)(10) applies to applicants whose spouses have been con- 9 been revoked within the-preceding 12 months." a ,�i,. ; ; rii 2 Sections 41A-5(a)(10), (b), and (c), as amended, provide as follows: a ,',�'•,,, victed of any of the enumerated crimes, but the record re- ! "The chief of police shall approve the issuance of a license . . . unless he •° ',., weals only one individual who could be disabled under this finds [that] . . . t . . provision. An individual, who had been convicted under the "(10) An applicant or an applicant's spouse has been convicted of a crime: r s}.. ' 't,,�: Texas Controlled Substances Act, asserts that his wife was "(A) involving: u = `, interested in opening a sexually oriented business. But the "(i) any of the following offenses as described in Chapter 43 of the Texas . h , Penal Code: ,. t ,. wife, although an officer of petitioner Bi-Ti Enterprises, Inc., "(aa) prostitution; s.: " „1-;,'V, I ! "(bb) promotion of prostitution; .F ti,.,,.- "(B) for which: ;• "(cc) aggravated promotion of prostitution; .. 4• v,!! .,,,, "(i) less than two years have elapsed since the date of conviction or the "(dd) compelling.prostitution; ;; ;- ;, =' ;<: date of release from confinement imposed for the conviction, whichever is "(ee) obscenity; `. ` , It -'aw' the later date, if the conviction is of a misdemeanor offense; r�"" ' ;, "' "(ii) less than five years have elapsed since the date of conviction or the "(ff) sale, distribution, or display of harmful material to minor; :-„..,,'. "(gg) sexual performance by a child; „'--'-.:.,t` • '. ,� `,- date of release from confinement for the conviction, whichever is the later "(hh) possession of child pornography; ''',-'4s�; • `':..:V V ; date, if the conviction is of a felony offense; or "(ii) any of the following offenses as described in Chapter 21 of the Texas t "(iii) less than five years have elapsed since the date of the last convic- Penal Code: r�3` ,•;, ton or the date of release from confinement for the last conviction, which- "(aa) public lewdness; •_.,,� #1,�•,'';V ever is the later date,•if the convictions are of two or more misdemeanor "(bb) indecent exposure; .`.,'; .t<,.,4 7-','` offenses or combination of misdemeanor offenses occurring within any 24- "(cc) indecency with a child; ems, k: month period. "(iii) sexual assault or aggravated sexual assault as described in Chapter r.-"",, ' "(b) The fact that a conviction is being appealed shall have no effect on 22 of the Texas Penal Code; • -`.;;,"> �+ the, disqualification of the applicant or applicant's spouse. "(iv) incest, solicitation of a child, or harboring a runaway child as de- ` • : ;' ` ''`-`"(c) An applicant who has been convicted or whose spouse has been con- scribed in Chapter 25 of the Texas Penal Code; or . ;victed of an offense listed in Subsection (a)(10)may qualify for a sexually • "(v) criminal attempt, conspiracy, or solicitation to commit any of the . ,-,, 1;.';,:,,_,'oriented business license only when the time period required by Section foregoing offenses; , - ,':41A-5(a)(10)(B)has elapsed." .4 ; r 1 234 , OCTOBER TERM, 1989 °'`:� FW/PBS, INC. v. DALLAS 235 Opinion of the Court 493 U. S. '_' ;„,1 215 Opinion of the Court is not an applicant for a license or a party to this action. See ` <. `.; party" to challenge the civil disability provisions. No other 12 Record, Evert Affidavit 3-6. Cf. Bender, 475 U. S., at ';' '- petitioner has alleged facts to establish standing, and the Dis- ' trict Court made no factual findings that could support stand- Even 548, and n. 9. ���'��: �.;;: if the wife did .helve standing, her claim would now ;.h„ r, ing. Accordingly, we conclude that the petitioners lack bes moot. Her husband's convictions under the Texas Con- r. 4 -- standing to challenge the provisions. See Warth, 422 I.J. S., trolled Substances Act would not now disable her from ob- t�:' € -"= at 518. g operatesexually ','•+. . ` At oral argument, city's a license to a oriented business, .',,,A�= .� �,: the city s attorney responded as follows because the city council, following the District Court's deci- : r' i when asked whether there.was standing to challenge the civil sion, deleted the provision disabling those with convictions 'V< 'Y' ` `f a' disability provisions: "I believe that there are one or two of AS: under the Texas Controlled Substances Act or Dangerous «<,;;; ;1 the Petitioners that have had their licenses denied based on Drugs Act. App. H. to Pet. for Cert. in No. 87-2012, p. 107. ';;:„,, t.,`": criminal conviction." Tr. of Oral Arg. 32. See also Foster See Hall v. Beals, 396 U. S. 45, 48 (1969). ,.,.•.: Affidavit 1 (affidavit filed by the city in its Response to Peti- Finally, the record does not reveal any party who has . - , . `� tioner's Application for Recall and Stay of the Mandate stat- . standing to challenge the provision disabling an applicant '= c ; :' ,--: ing that two licenses were revoked on the grounds of a prior who was convicted of any of the enumerated crimes. To es- `'.4 :'''' ;. conviction since the ordinance went into effect but failing to tablish standing to challenge that provision the individual `j ;;:--,:':;f<< identify the licensees). We do not rely on the city's repre- must show both (1) a conviction of one or more of the enumer- ,:' ,, ,; sentations at argument as "the necessary factual predicate ated crimes, and (2) that the conviction or release from con- .:,',;-,;7:,-,, 'z';` may not be gleaned.from the briefs and arguments them- finement occurred recently enough to disable the applicant .,', -;-"•-' '" i selves,"Bender, supra, at 547. And we may not rely on the under the ordinance. See §§41A-5(a)(10)(A), (B). If the " ':. i• 3' city's affidavit, because it is evidence first introduced to this disability period has elapsed, the applicant is not deprived of I: ',: Court and "is not in the record of the proceedings below," : Adickes v. S. H. Kress & Co. 157, the possibility of obtaining a license and therefore, cannot be ;: .",: . �: 398 U. S. 144, n. 16 injured by the provision. f' ,° v '' (1970). Even if we could take into account the facts as al- The only party who could plausibly claim to have standing 1;;;,,„• ..,-, : leged in the city's affidavit, it fails to identify the individuals to challenge this provision is Bill Staten, who stated in an .. ° ';,•; . •'`'"P:... whose licenses were revoked and, therefore, falls short of affidavit that he had been "convicted of three misdemeanor .': ' F..` ,,4«='` establishing that any petitioner before this Court has had a obscenity violations within a twenty-four month period." 7 Jri... .,. a ;:. license revoked under the civil disability provisions. Record, Staten Affidavit 2. That clearly satisfies the first `� '- Because we conclude that no petitioner has shown standing requirement. Under the ordinance, any person convicted of :'7„ • , '".;Y to challenge either the civil disability provisions or the provi- 1 two or more misdemeanors "within any 24-month period," . :' ti sions involving those who live with individuals whose licenses must wait five years following the last conviction or release .�?Q' :'. ."`=" a„ have been denied or revoked, we conclude that the courts from confinement, whichever is later, before a license may {:a,"-: . ::•,J,,. :: below lacked jurisdiction to adjudicate petitioners' claims be issued. See §41A-5(a)(10)(B)(iii). But Staten failed to ; = •` ;` • with respect to those provisions. We accordingly vacate the i j state when he had been convicted of the last misdemeanor or A`. 4 ems!; judgment of the Court of Appeals with respect to those provi- 1 the date of release from confinement and, thus, has failed ":'�. , -• :- ",v sions with directions to dismiss that portion of the action. ,. "clearly to allege facts demonstrating that he is a proper A -,,, , •; See Bender, supra, at 549 (vacating judgment below on I y`r ' 236 OCTOBER TERM, 1989 ',, FW/PBS, INC. v. DALLAS 237 r:- ^: 215 Opinion of the Court Opinion of the Court 493 U. S. ., ' ground of lack of standing); McNutt, 298 U. S., at 190 °'::'. `';' The motel owners also assert that the 10-hour limitation on :' .-"4 :', the rental of motel rooms places an unconstitutional burden ,.z„•,,:A,:;; on the right to lfreedom of association recognized in Roberts ... v. United States The motel owner petitioners challenge two aspects of the k:; Jaycees, 468 U. S. 609, 618 (1984) ("Bill ofI •:�r; Rights . : . must afford the formation and preservation of ordinance's requirement that motels that rent rooms for , : g • -,it';''' certain kinds of highly personal relationships"). The city fewer than 10 hours are sexually oriented businesses and are, -4 t;,,, g Y . p l ' '1,,. therefore, regulated under the ordinance. See §41A-18(a). E' does not challenge the motel owners' standing to raise the First, they contend that the city had an insufficient factual •: . �, ,:• issue whether the associational rights of their motel patrons basis on which to conclude that rental of motel rooms for , ,,!.,A >, have been violated. There can be little question that the mo- fewer than 10 hours produced adverse impacts. Second, �.[{r tel owners have alive controversy against enforcement of they contend that the ordinance violates privacy rights, espe- z.-� ;,, the statute"and therefore, that theyhave Art. III standing. F . � . cially the right to intimate association. Craig v. Boren, 429 U. S. 190, 192 (1976). It is not clear, With respect to the first contention, the motel owners as- <~; .-u:, L' ;;,, however, whether they have prudential,jus tertii standing to sert that the city has violated the Due Process Clause by `_ ;rt, 3, 4 : . challenge the ordinance on the ground that the ordinance in- failing to' produce adequate support for its supposition that { • � •°; - ..:,•4,:,` fringes the associational rights of their motel patrons. Id., : ,.1 renting rooms for fewer than 10 hours results in increased ; .y • Gi'° . ,,•;=;,t. at 193. But even if the motel owners have such standing, we crime or other secondary effects. They contend that the f' do not believe that limiting motel room rentals to 10 hours council had before it only a 1977 study by the city of Los r Ys ,, r_ Angeles that considered cursorily the effect of adult motels ::, a will have any discernible effect on the sorts of traditional per- on surrounding neighborhoods. See Defendant's Motion for ,;F , ., `' a+� ,: sonal bonds to which we referred in Roberts. Any"personal Summary Judgment, Vol. 2, Exh. 11. The Court of Appeals , „ °` bonds" that are formed from the use of a motel room for ' . r:..,';•, .f "played thought it reasonable to believe that shorter rental time peri- ,„-i•,. :a -.-._.^ ewer than 10 hours are not those that have la ed a critical ods indicate that the motels foster prostitution and that this ,7.5 . •'`,,, . ,role in the culture and traditions of the Nation by cultivating type of criminal activity is what the ordinance seeks to sup- 4 ' , ' ,, r ;and transmitting shared ideals and beliefs." 468 U. S•, at press. See 837 F. 2d, at 1304. Therefore, no more exten- +>K .� •,, , _,61$-619. We therefore reject the motel owners'challenge to sive studies were required than those already available. We 1• F. _, ' `the.ordinance. • agree with the Court of Appeals that the reasonableness of ,, , . • "--. Finally, the motel owners challenge the regulations on the the legislative judgment, combined with the Los Angeles _ ,' ,'ground,that they violate the constitutional right "to be let study, is adequate to support the city's determination that , 4:' i": =F�'alone " Olmstead v. United States, 277 U. S. 438, 478 (1928) motels permitting room rentals for fewer than 10 hours should x: `(Brandeis, J., dissenting), and that the ordinance infringes be included within the licensing scheme. ,„. -, J.- d‘.<... �;�`° the'motel owners' commercial speech rights. Because these 'Petitioners also raise a variety of other First Amendment challenges: ,,._.. ;„ - =t:;.y dues were not pressed or passed upon below, we decline to to the ordinance's licensing scheme. In light of our conclusion that the �,' i consider,.them.' See, e. g•, Rogers v. Lodge, 458 U. S• 613, licensing requirement is unconstitutional because it lacks essential proce- * .,, - «�:;628,`n. 10 (1982); FTC v. Grolier Inc , 462 U. S. 19, 23, n. 6 dural safeguards and that no petitioner has standing to challenge the resi-f •3 '. dency or civil disability provisions, we do not reach those questions. : ., , (1983). max: 1 { ` L CRC • 238 • OCTOBER TERM, 1989 :t Kx_4 FW/PBS, INC. v. DALLAS 239 I BRENNAN, J., concurring in judgment 493 U. S. f „' 215. BRENNAN,J., concurring in judgment Accordingly, the judgment below is affirmed inpart, , '"-'`' �re- ::-_,...,�;,, eration of Blind of N. C., Inc., 487 U. S. 781 (1988), man- versed in part, and vacated in part, and the cases are re- °at: r: dates application of all three of the procedural safeguards ` manded for further proceedings consistent with this opinion. _., !:`` ' -�• specified in Freedman v. Maryland, 380 U. S. 51 (1965), not It is so ordered. ' f '.' just two of them, and also to point out that Part III of Jus- ^j`;4 L ;``( TICE O'CONNOR's opinion reaches a question not necessary to JUSTICE BRENNAN, with whom JUSTICE MARSHALL and =a`;t,.'-t+*6. the decision. JUSTICE BLACKMUN join, concurring in the judgment. ,I#= 1 I I concur in the,judgment invalidatingthe Dallas licensing : •.;: .i'y In Freedman'v. Maryland, supra, as JUSTICE O'CONNOR J � provisions, as applied to any First Amendment-protected "'d&'•°{!; :°s . notes, we held that threeprocedural safeguards are needed business, because I agree that the licensingscheme does not ='' '_1'''°' " 1"! '., -' to "obviate the dangers of a censorship system": (1) any prior provide the procedural safeguards required under our previ- "=, �ji ; �. restraint in advance of a final judicial determination on the ous cases.' I also concur in the judgment . " t ;I upholding the pro- .•'•x,.,;•1",: :• merits must be no longer than that necessary to preserve the 1 visions applicable to adult motels, because I agree that the ,rr.. ., '� -, status quo pending judicial resolution; (2) a prompt judicial II motel owners'claims are meritless. I agree further that it is :;E'q'.',ti :`` determination must be available; and (3) the would-be censor iii i,4`,. not necessary to reach petitioners' other First Amendment r • must bear both the burden of going to court and the burden ii challenges. I write separately, however, because I believe ; _ t , le `'• of proof in court. 380 U. S., at 58-59. Freedman struck 1 that our decision two Terms ago in. Riley v. National Fed- ^F ` - down a statute that required motion picture houses to submit tf <'.',, films for prior approval, without providing any of these pro- 'JUSTICE SCALIA'S opinion concurring in part and dissenting in part, ...0 1: tections. Similar cases followed, e. g., Teitel Film Corp. v. purportedly "` ,.,grounded in my opinion in Ginsburg v United States, 383 f" Cusack 390 U. S. 139 1968 U. S. 463 (1966), does not persuade me otherwise. In Ginsburg, this r t c.';,y., ( ) (invalidating another motion Court held merely that, in determining whether a given publication was '#t R picture censorship ordinance for failure to provide adequate obscene, a court could consider as relevant evidence not only the material ,;; �* °•t,:•n;;:' Freedman procedures); Blount v Rizzi, 400 U. S. 410 (1971) itself but also evidence showing the circumstances of its production, sale, ' • (invalidating postal rules permitting restrictions on the use of and advertising. 'Id,,at 465-466. The opinion concluded:"It is important 44 v '''', t ,. the mails for allegedly obscene materials because the rules to stress that this analysis simply elaborates the test by which the obscen- •` ; ity vel non of the material must be judged." Id., at 475. As JUSTICE •;, A'' . '•,, h, lacked Freedman safeguards);Southeastern Promotions;,Ltd. O'CoNNOR's opinion makes clear, ante at 220, there is no "obscenity vel :'': x'Er", T ;4 . v Conrad, 420 U. S. 546 (1975) (finding unconstitutional a nun"question in this:case. ;=,b city's refusal to rent municipal facilities for a musical because What Ginzburg did not do, and what this Court has never done, despite 4.6/_. ,,4' ,,2 of its content, absent Freedman procedures). JUSTICE SCALIA S claims, is to abrogate First Amendment protection for ,Tr''''': . .% '',I:We have never suggested that our insistence on Freedman t an entire category of speech-related businesses. We said in Ginsburg that ;, ,,;N:;; '''�- °� we perceived "no threat to First Amendment guarantees in thus holding , + ',� ,,_procedures might vary with the particular facts of the prior s restraint before us. To the contra this Court has contin- that in close cases evidence of pandering may be probative with respect to ' ' ,' '� the nature of the material in question." 383 U. S.,at 474. History has '>�.` •,, -'.•'a,.ued to require Freedman procedures�in a wide variety of con- proved us right, I think, that the decision itself left First Amendment «,r : , '' ;texts. In National Socialist Party of America v Skokie, .t guarantees secure. JUSTICE SCALIA'S transmogrification of Ginsburg, q: -,.432 U. S. 43(1977), we held that even a court-ordered injunc- however, is far from innocuous. y • ' e.y ton must be stayed if appellate review is not expedited. ; t • r r t, , 1. --, fit: .. - 240 OCTOBER TERM, 1989 ,s.e ?';, 1 FW/PBS, INC. v. DALLAS 241 BRENNAN, J., concurring in judgment 493 U. S. ''"'`,.5z 215 BRENNAN, J., concurring in judgment Id. at 44. And in Vance v. Universal Amusement Co., 445 :..;� , content is presumptively invalid. She finds the second sig- U. S. 308 (1980), we held that ageneral public nuisance stat- nificant because it anticipates that applicants with an entire ;.. ute could not be applied to enjoin a motion picture theater's ;;'', `�. business at stake will pursue their interests in court rather future exhibition of films for a year, based on a presumption Sa # >' . than abandon them. that such films would be obscene merely because prior films .,,{,h. ,. While JUSTICE O'CONNOR is certainly correct that these had been, when such a determination could be constitution- `;,.,ea,;,)• , aspects distinguish the facts before us from those in Freed- ally made only in accordance with Freedman procedures. ,.'1, •?.:_,-`, man, neither ground distinguishes these cases from Riley. " :`-`','"' ;.::.. The licensor in Riley was not required to distinguish between 445 U. S., at 317. �� ..s:: ,. protected and unprotected speech. .He was reviewingappli- a Terms ago, in Riley, this Court applied Freedman to :, ;•,r,.,� • p p pp a professional licensing scheme because the professionals in- '„lc." , cations to practice a particular profession, just as the city of volved, charity fundraisers, were engaged in First Amend- ..�° Dallas is acting on applications to operate particular busi- fs A, ...: . nesses. Similarly, the fundraisers in Riley had their entire ment-protected activity. We held that, even if North Caroli- „1v , Y, 7 na's interest in licensing fundraisers was sufficient to justify ,; :': livelihoods at stake, just as the bookstores and others subject <= - : to the Dallas ordinance. Nonetheless, this Court'placed the such a regulation, it "must provide that the licensor `will, K ,,'`t ' 487 U. S., at 802. within a specified brief period, either issue a license or go to �.Y,y`•� -. . • .-, ' • burden of going to court on the State, not the applicant.2 - : • court."' 487 U. S., at 802, quoting and applying Freedman, _'i? ,,• •�=r,.,". Moreover I believe Rileyas rightly decided for the same supra, at 59. The North Carolina statute did not so provide, , ,;$'. yf a:: g y .,,, reasons that the limitation set forth in JUSTICE O'CONNOR's and we struck it down. 487 U. S., at 802. -.: opinion is wrong. The danger posed by a license that pre- In his Court, to be sure, discussed the failure of the ;`tra'°, ' Riley,y �_ . ' , •,',, vents a speaker from speaking at all is not derived from the North Carolina statute to set a time limit for actions on li- ._.,,..,.r. . cense applications, but it also held that the licensor must be .; r'. '' ,;;--_ basis on which that license was purportedly denied. The required to go to court, not the would-be fundraiser. Be- { �A T danger posed is the unlawful stifling of speech that results. As we said in Freedman, it is "the transcendent value of cause I see no relevant difference between the fundraisers in ,``- ,"' ;-,, .G 4^ L ,: Riley and the bookstores and motion picture theaters in ;� :: . r ,-y,, speech" that places the burden of persuasion on the State. : heavy p P against cases, I would hold that the city of Dallas must :����}`� bear the ' _ ;� �;:: :-380 U. S., at 58. The resum tion a ainst prior re- burden of going to court and proving its case before it may ;` straints requires no less. JUSTICE O'CONNOR does not, nor permissibly deny licenses to First.Amendment-protected 7 4?, , y :could she, contend that those administering this ordinance businesses. , . k . - „'',will always act according to their own law. Mistakes are JUSTICE O'CONNOR bases her disinclination to require the - _F 4 -,` ;'..inevitable; abuse is possible. In distributing the burdens s ;of.initiating judicial proceedings and proof, we are obliged third Freedman procedure on two grounds: the Dallas licens- °�, ;:ii. . ' 1 ing scheme does not involve an administrator's passing judg r ;:.,_ - _ ,j;;# .--ha`• -- t' PVance v. Universal Amusement Co., 445 U. S. 308' (1980), also in- ment on whether the content of particular speech is protected , F - evolved censorship that threatened proprietors' entire businesses, rather or not; and the Dallas scheme licenses entire businesses, not.; *. t^ :. f , • ,, than single films. This Court, notwithstanding, affirmed the Court of just individual films. JUSTICE O'CONNOR finds the first dis.; , ,r z A p eals which had held that the statute was unconstitutional because it :i . � , PP � tinction significant on the theory that our jurisprudence holds :_ ,lacked the procedural safeguards required under Freedman. 445 U. S.,at I only that suppression of speech on the ostensible ground of l y, `, 314, 317. f ,,. k . fra . .4-.;,, Y.. 1110, - III i 242 ' OCTOBER TERM, 1989 ^; ,;• FW/PBS, INC. v. DALLAS 24311 i BRENNAN,J., concurring in judgment 493 U. S. ' BRENNAN,J., concurring in judgment to place them such that we err, if we must, on the side of ;` =. .ti t; that these provisions "impose an impermissible prior re- speech, not on the side of silence. ,'.',; , 4•,',: . straint upon protected expression." Brief for Petitioners FW/PBS et al. 12. Because the challenge is based II Inc., `` 'P '.,,„_ solely on the First Amendment, a victory on the merits In Part III of the opinion, JUSTICE O'CoNNOR considers p ,,s ' , w. would benefit only those otherwise regulated businesses at some length whether petitioners have made an adequate A , , ;- ` which are protected by the First Amendment. �;l showing of standing to bring their claims against the cohabi- ry . . But since the Court invalidates the application of the entire tation and civil disability provisions of the licensing scheme. ,° -„,,,, Dallas licensing scheme to any First Amendment-protected h, Were it of some precedential value, I would question this s;v•: ; business under the Freedman doctrine, it is unnecessary to N; Court's reversal of the findings of both the District Court and .•i,,. ;t. ` .4-. •decide whether some or all of the same provisions are also the Court of Appeals' thatpetitioners had standingto bring °°s -' pp � ; . invalid, as �to First Amendment-protected businesses, on their claims, where the basis for reversal is an affidavit that 2, ; ;•�;;. ',,, other grounds. JUSTICE O'CONNOR recognizes this and 1' is at worst merelyambiguous. But because the discussion is i' gu rf �.- f, #,, wisely declines to reach petitioners' challenge to various re- wholly extraneous to the actual holding in this case, I write ;r`,,E :. , ,; quirements under the licensing scheme, other than the civil only to clarify that Part III is unnecessary to the decision and 4 ,4° y f•, .a ^: disability and cohabitation provisions, on the First Amend- 1 is pure dictum. ,,,. <• : ,. ment ground that the ordinance impermissibly singles out 1 The first claim for which the Court fails to find a petitioner _ ,3' persons and businesses engaged in First Amendment- 1, with standing—an unspecified objection to the provision de- ' ' . -,•. :- protected activities for regulation.6 is p` nying a license to any applicant residing with someone whose ' -,'. ," For reasons unexplained and inexplicable, the opinion sep- own application has been denied or revoked within the past :.,` - 7,4,f' arates the prior restraint and singling out claims and accords year—is not directly presented by the parties, was not , , . . ; :,: • them •different treatment. Perhaps, if the inquiry had :f reached by the court below, and is not among the questions g Sys; • reached.the merits of the prior restraint claim, one could , on which certiorari was granted. The second claim for which xi =, ",`;- •infer a motive to take the opportunity to offer guidance in an the Court fails to find a petitioner with standing—petitioners' �,� ; �`' area of the law badly in need of it. But because the inquiry II objection to the ordinance's civil disability provisions—is -, ;•',' v,.,: : proceeds no further than jurisdiction, no such explanation is • clearly before this Court, but consideration of this claim : r available. Whatever the reason for including Part III, it is ,1_ is rendered redundant by JUSTICE O'CONNOR'S holding in -,. •w _;; superfluous. Part II. 0' ,;5 .. li The civil disability claim is an objection to that part of the L:s"44" ... 'Petitioners M. J. R., -Inc., et al. phrase the same objection slightly '1 : ,' '''','': = different) Theycharacterize license denial or revocation based on cer- F1' licensing scheme which provides for denial or revocation of a , , y r,• tain listed prior speech offenses as a"classic prior restraint of the type pro- license because of prior criminal convictions, on the ground z, tin a: hibited as facially unconstitutional under the rule of Near v.Minnesota[ex ' rel. Olson], 283 U. S..697(1931)," and they characterize license denial or ii 'Both the District Court and the Fifth Circuit, after finding that plain- :�' r„ ,• 4',•c' A. revocation based on other listed prior offenses as "prior restraints which tiffs had standing to challenge the ordinance, reached the civil disability ,r: ,,,_;•'' ; ',�:`",,:, cannot withstand strict scrutiny and are therefore invalid under the first I question. See 837 F. 2d 1298, 1301, 1304-1305 (1988); Dumas v. Dallas, t ,,` amendment" See Brief for Petitioners M. J. R., Inc., et al. 22, 33. ,i. 648 F. Supp. 1061 (ND Tex. 1986). ., , 'See Brief for Petitioners FW/PBS, Inc., et al. 21-24. ii —_' •tin,. ' ' •.C 1 'e-4 0 ` 244 III OCTOBERTERM, 1989 ,•,'„ ' DALLAS 245 4 - ` FW/PBS, INC. v. Opinion of WHITE,J. 493 U. S. ' ,' ` 215 Opinion of WHITE, J. JUSTICE WHITE . With whom THE CHIEF JUSTICE joins, tx ' j ` , r JUSTICE O'CONNOR does not suggest that the businesses concurring in part and dissenting in part. ;r;; r, : involved here are immune from the kind of regulation sus- ; � �-�,�s�'. �.;_,'.. tained in Young and Renton. Neither is it suggested that I join Parts I, III, and IV of the Court's opinion but do not :XL.,..,, -: the prerequisites for obtaining a license, such as certificates agree with the conclusion in Part II that the Dallas ordinance -', r.`` `°,; ;:. 4 ;i ,;::, of occupancy and inspections, do not serve the same kind of a must include two of the procedural safeguards set forth in :.`; fi;:, ,�,�,t4>*:,, substantial governmental interest dealt with in those cases Freedman v. Maryland, 380 U. S. 51 (1965), in order to de- a`-'-' a nor that the licensing system fails the test of content neutral- feat a facial challenge. I would affirm the Fifth Circuit's ': ' ;.a,. : "`;.; ity. The ordinance in no way is aimed at regulating what holding that Freedman is inapplicable to the Dallas scheme. _=,:;°,�1 'i? Court has often held that when speech and nonspeech „� .. --- The may be sold or offered in the covered businesses. With a li- p p ', :-- cense, operators can sell anything but obscene publications. elements "are combined in the same course of conduct, a suf- ' *. . ',' Without .one—without satisfying the licensing require ficiently important governmental interest in regulating the '_.� i�.•--,,-- ments—they can sell nothing because the city is justified in nonspeech element can justify incidental limitations on First `,, -,- 4 '-n" .'•:.. n;.;" `;;: enforcing the ordinance to avoid the likely unfavorable conse- Amendment freedoms." United States v. O'Brien, 391 U. S. ;'':< quences attending unregulated sexually oriented businesses. 367, 376 (1968). See also Clark v. Community for Creative :'+ "*j' * ; , • JUSTICE O'CONNOR nevertheless invalidates the licensing Non-Violence, 468 U. S. 288, 298-299 (1984); Cox v. Louisi- '._;�. �' • n '- �,� � - � _ provisions for failure to provide some of the procedural re- am, 379 U. S. 559, 562-564 (1965); Adderley v. Florida, 385 . " J.:.r`_, quirements that'Freedman v. Maryland, supra, imposed in U. S. 39, 48, n. 7 (1966). Our cases upholding time, place, ` `4 .. ., . connection with a Maryland law forbidding the exhibition of and manner restrictions on sexually oriented expressive ac- �'f any film without the approval of a board of censors. There, tivity are to the same effect. See Renton v. Playtime The- '' _ :. the board was approving or disapproving every film based on atres, Inc., 475 U. S. 41 (1986); Young v. American Mini `� fi:.: its view of the' film's content and its suitability for public Theatres, Inc., 427 U. S. 50 (1976). Time, place, and man- :,,-_ .• , =AFT.. viewing. Absent procedural safeguards, the law imposed an ner restrictions are not subject to strict scrutinyand are sus- -` _• „'y-' `,'r J s � unconstitutional prior restraint on exhibitors. As I have tamable if they are content neutral, are designed to serve a ,, , said, however, nothing like that is involved here; the predi- substantial governmental interest, and do not unreasonably �' cate identified in Freedman for imposing its procedural re- limit alternative means of communication. Renton,•supra, "e` a „ quirements is absent in these cases. at 47. See also Heffron v. International Society for Krishna :;k; 4.,: •. Nor is there any other good reason for invoking Freedman. Consciousness, Inc., 452 U. S. 640, 647-648 (1981); Virginia !` . ,' The Dallas ordinance is in many respects analogous to re la- Pharmacy Board v. Virginia Citizens Consumer Council, - :13 x,,.. t.ions requiring parade or demonstration permits and impos- Inc., 425 U. S. 748, 771 (1976). Renton and Young also ;.' f- • ` - - '.',ing conditions on such permits. Such regulations have gen- make clear that there is a substantial governmental interest `' * ,-; , • -'' 4.1 erally been treated as time, place, and manner restrictions in regulating sexually oriented businesses because of their =,w ;+ ,s::,z : .: I and have been upheld if they are content neutral, serve a sub- likely deleterious effect on the areas surrounding them and ' '''i4 , ." astantial governmental interest, and leave open alternative that such regulation, although focusing on a limited class of ';`, 'k:t ' -: t:avenues of communication. Cox v. New Hampshire, 312 businesses involved in expressive activity, is to be treated as '':.•• fi'',' ' 1 ;U S. 569, 574-576 (1941); Clark v. Community for Creative content neutral. == " �- , '1'Non-Violence supra, at 293-298. The Dallas scheme regu- , `' . , .,7:- .r '. c ,e)t.;.,, ' - sir.;,} s, 1 • 246 OCTOBER TERM, 1989 ..r; . .7. 'f. I FW/PBS,.INC. v. DALLAS 247 Opinion of WHITE,J. 493 U. S. x , 215 i Opinion of WHITE,J. `' • 4 i lates who may operate sexually oriented businesses, includ- • • ing prior to obtaining a license, but which permitted non- ing those who sell materials entitled to First Amendment r': , 2 professionals to solicit while their license applications were protection; but the ordinance does not regulate content and . `rf- 4: pending. We there held that a professional fundraiser was • i thus it is unlike the content-based prior restraints that this :;;.r s s; a speaker entitled to First Amendment protection and that Court has typically scrutinized very closely. See, e. g., Near • • because "the States asserted power to license professional v. Minnesota ex rel. Olson, 283 U. S. 697 (1931); National ;_ `•, - '- fundraisers carries with it (unless properly constrained) the Socialist Party of America v. Skokie, 432 U. S. 43 (1977); 4 l" .y� power directly and substantially to affect the speech they Vance v. Universal Amusement Co., 445 U. S. 308 (1980); h ;;F; utter," id.; at 801, the requirement was subject to First Freedman v. Maryland, supra. ,&w .,:1 Amendment scrutiny to make sure that the licensors discre- 11 Licensing schemes subject to First Amendment scrutiny, `'4w,.• ; tion was suitably confined. Riley thus appears to be a however, even though purporting to be time, place, and man- ,, 'straightforward application of the "undue-discretion" line of a g p P g � .. ,' ner restrictions, have been invalidated when undue discre- )p'. , , :- . cases. The Court went on to say, however, that even as- tion has been vested in the licensor. Unbridled discretion ' • 0 sunning, as North;Carolina urged, that the licensing require- f with respect to the criteria used in deciding whether or not to . ment was a time, place, and manner restriction, Freedman v. grant a license is deemed to convert an otherwise valid law Maryland, 380 U. S. 51 (1965), required that there be,provi- into an unconstitutional prior restraint. Shuttlesworth v ` ''+;' sion for either acting,on the license application or going.to '' Birmingham, 394 U. S. 147, 150-152 (1969); Lakewood v. ,,,, i. • _: . . -`. court within a specified brief period of time.. z Plain Dealer Publishing Co., 486 U. S. 750, 757 (1988); '�_i•�: • ' ;' Contrary to the ordinance in. these cases, the Riley licens- Staub v. City of Baxley, 355 U. S. 313 (1958); Niemotko v „r°�=``'. :,::pi,*,,,_,"` ing requirement was aimed directly at speech. The discre- Maryland, 340 U. S. 268 (1951); Kunz v. New York, 340 .f :. 4r Lion given the licensors in Riley empowered them to affect U. S. 290 (1951); Saia v. New- York, 334 U. S. 558 (1948). , "' ,7,,..the content of the fundraiser's speech, unless that discretion "1 That rule reflects settled law with respect to licensing in the ` • - 1 �`.��-�"= ,� -.was suitably restrained.- In that context, the Court invoked 67i� First Amendment context. But here there is no basis for in- ,,:, :-. . 4' ,;' 'Freedman. That basis for applying Freedman is not present tii yoking Freedman procedures to protect against arbitrary use s - - ._ . . ;here, for, as I have said, the licensor is not vested with undue of the.discretion conferred by the ordinance before us. Here, .: a" ;;:discretion. ' c t � .Ya;4 the Court of Appeals specifically held that the ordinance did 4 .; ::7,,a;Neither is there any basis for holding that businesses deal- not vest undue discretion in the licensor because the ordi- .i'-';':::: :... µ ing in expressive materials have been singled out; all sexually '.j nanceprovides sufficiently standards for the chief of ;,`.`. " r g+`` ` '' 1 objective ,�. .<_,orlented businesses-including those not involved in expres- ��, Y.: police to apply. 837 F. 2d 1298, 1305-1306(CA5 1988). JUB- „-.,.Y sive activity such as escort agencies—are covered, and all 01 TICE O'CONNOR's opinion does not disturb this aspect of•the :F ,,.:_ other,businesses must live up to the building codes, as well as 1 ' i`z fire'and'health regulations. Furthermore, the Court should. ill Court of Appeals' decision, and because it does not, one argu-,:. gu ably tenable reason for invoking Freedman disappears. ' -i' " ' ` not:assume that'the licensing process will be unduly pro- Additionally, petitioners' reliance on Riley v. National e, Tk a,longed or that inspections will be arbitrarily delayed. There 1 Federation of Blind of N. C., Inc., 487 U. S. 781 (1988), .is #F 7;� F :,q 8{no`'evidence that this has been the case, or that inspections ilI misplaced. Riley invalidated a licensing requirement' for'£. . Y -i1%other contexts have been delayed Or neglected. Between 111 professional fundraisers which prevented them from solicit'-� �, ' ,the 4:time of the District Court's judgment and that of the ,t!": rE 3Y� ;,i • .:1 III 248 • OCTOBER TERM, 1989 : ' FW/PBS, INC. v. DALLAS 249 Opinion of WHITE,J. 493 U. S. _" ', 215 Opinion of STEVENS,J. Fifth Circuit, Dallas granted some 147 out of 165 license re- 't;c;:lc" . For the foregoing reasons, I respectfully dissent from Part quests, and none of the petitioners in making this facial chal- '.'r,r' ,• II of JUSTICE O'CONNOR'S opinion. lenge to the ordinance asserts that its license application was ?t'. ,°' :',1 :` not promptly dealt with, that it was unable to obtain the re- 'y';'' • JUSTICE STEVENS, concurring in part and dissenting in quired inspections promptly, or that it was unable to secure '"'`'= .r ' `• ' part. reasonably prompt review of a denial. Clearly the licensing m,• y-: . 1 As the Court explains in Part III of its opinion, it is not scheme neither imposes nor results in a ban of any type of _'`• '. - • ':�;� ,:,• ,; certain that any petitioner has standing to challenge the pro- adult business. ,:- `'' .. '', visions of the licensing scheme that disqualify applicants who I see no basis for invalidating this ordinance because it fails p: -V° , ,_" : are themselves unqualified or who reside with, or are mar- to include someprophylactic measures that will and against �s1-:' ,, g • ried to, unqualified persons. Given the breadth of those pro- highly speculative injuries. As JUSTICE O'CONNOR notes in :Y{;""'•• ` . '_ ; .. •visions, the assertions in the Staten and Foster affidavits, the course of refusing to apply one of the Freedman proce- y:,,.::. ,•A t-;;a. and the District Court's understanding of the relevant facts, dural mandates, the licensingin these cases is required of ::V•Vi q ;:.. :"•E,- however, I cannot join the decision to direct dismissal of this sexually oriented businesses, enterprises that will have ,' rzw. , %;` ..portion of the litigation. See ante, at 235. I would remand everyincentive topursue the license applications vigorously. •',.` `` �A ` ' pp � •:., . for an evidentiary hearing on the standing issues. Ante, at 229-230. The ordinance requires that an applies- ,��;,.fFzrt nr,,' •.';", :,'k I join Parts I, II, and IV of JUSTICE O'CONNOR'S opinion. tion be acted on within 30 days. Licensing decisions sus-`-:psi E` '''`'% ` With respect to JUSTICE SCALIA'S proposed resurrection of pending or revoking a license are immediately appealable to a XI:, Ginzburg v United States, 383 U. S. 463 (1966), I have this permit and license appeal board and are stayed pending that,.� 'r`,• comment. As I explained in my dissenting opinion in Splawn appeal. In addition, no one suggests that licensingdecisions .x.• ';:v.` California, 431 U. S. 595, 602 (1977), Ginzburg was ppgg ,,-cfi are not subject to immediate appeal to the courts. As I see,.,'-. _. 't"'s decided before the Court extended First Amendment protec- it, there is no realistic prospect that the requirement of,a ,I ','- tion to commercial speech and cannot withstand our decision license will have anything more than an incidental effect on,.l`y :: ..-)•Ain Virginia Pharmacy Bd. v Virginia Citizens Consumer the sale of protected materials. •;!, _ •, ..:',c.,Council, Inc., 425 U. S. 748 (1976). If conduct or communi- Perhaps JUSTICE O'CoNNOR is saying that those who deal t;,. : ". 4cation is protected by the First Amendment, it cannot lose its in expressive materials are entitled to special procedures;in F = flirotected status by being advertised in a truthful and inoffen- the course of complyingwith otherwise valid neutral;re la'.: .. . .„save manner. Any other result would be perverse: •, ,r d,,.: n tions generally applicable to all businesses. I doubt, howl ; ": l"Signs which identify the `adult' character of a motion ever, that bookstores or radio or television stations must;be..:",a: ';#'y_'', 'r;;4 €i;picture theater or of a bookstore convey the message given special breaks in the enforcement of general healthy=, '' :', `'ls;.that sexually provocative entertainment is to be found building, and fire regulations. If they must, why would not , `-s•� k4i` t within . .,'. .; Such signs . . . provide a warning to those a variety of other kinds of businesses, like supermarkets.and '; ;vvho find erotic materials offensive that they should convenience stores that sell books and magazines, also be,sp„ ,:, ;„ ,,shop elsewhere for.other kinds of books, magazines, or entitled? I question that there is authority to be found in -4 . F41entertainment. Under any sensible regulatory scheme, our cases for such a special privilege. . ,, .A� '' '.` ,``' ," descriptionsubjectpleasing, ti,i, .,z...;truthful of matter that is 'leasin to • 260 OCTOBER TERM, 1989 rt '` ! FWIPBS, INC. v. DALLAS 251 � Opinion of SCALIA, J. 493 U. S. �V .. ` 215 Opinion of SCALIA, J. "f ..ti , "Thebe: a basic for the trier of fact must ( ) some and offensive to others ought to be encouraged, not ', ; ;� guidelines punished." 431 U. S„ at 604. • .' .' whether the average person, applying contemporary : -', f, community'standards' would find that the work, taken JUSTICE SCALIA concurringinpart and dissentinginpart. "�° ;U,r': ,'; ,*, :,-:, as a whole, appeals to the prurient interest . . . ;.(b) I join Part I of the Court's opinion, Part III holdingthat `°' '-M ,. ,;-,;;) �,, whether the work depicts or describes, in a patently of- thee is no standing to challenge certain portions of the Dal- � 6-.,'k,; fensive way, sexual conduct specifically defined by the las ordinance, and Part IV, sustaining on the merits certain :,- .,. • - . applicable state law; and (c) whether the work, taken as other portions. I dissent from the judgment, however, be- ‘,",:•, �;.;; a whole, lacks serious literary, artistic, political, or sci- cause I would affirm the Fifth Circuit's holding that the ordi- ';Y w' entific value." ' nance is constitutional in all respects before us. -;-,';,^. 1; ti. These standards' immediate purpose and effect—which, it is I -,a,$ c', ' fair to say, have met with general public acceptance—have Since this Court first had occasion to apply the First '-,-- ' { been to guarantee the access of all adults to such works of lit- Amendment — erature, once banned or sought to be banned, as Dreiser's An Amendment to materials treating of sex, some three decades ;�; ,,•a� _ ~• � g z °_' American Tragedy,' Lawrence's Lady Chatterley's Lover, ago, we have been guided by the principle that "sex and ob- -a,�;�'. ,<<a���'-, scenity are not synonymous," Roth v. United States, 354 fx .,.:; , • Miller's Tropic of Cancer and Tropic of Capricorn,3 and U. S. 476, 487 (1957). The former, we have said, the Con- n . 11' ` Joyce's Ulysses,4 and to many stage and motion picture•-3 =•�: pro- stitution permits to be described and discussed. The latter .,,,,,,,_•--,',, . ductions of genuine dramatic or entertainment value that is entirely unprotected, and may be allowed or disallowed by ., °=. . :-°;-•�:>`:`.'. contain some sexually explicit or even erotic material. States or communities, as the democratic majority desires. .,,° `;�1`1 Application of these standards(or, I should say,�;�=' ;. • y� .; misapplica- Distinguishing the one from the other has been the ''' ': , `;':• ,- . tion of them) has had another effect as well—unintended and prob- ` {" ; most certainlynot generallyapproved. The Dallas ordinance lem. Obscenity, in common understanding, is material that *,• - pp "treat[s] sex in a manner appealing to prurient interest," id., ':,q ; , , + at issue in these cases is not an isolated phenomenon. It at 488. But for constitutional purposes we have added other r.'.�='°F :` `::; ;:is one example of an increasing number of attempts through- conditions to that definition, out of an abundance of concern , 4 out the country, by various means, not to withhold from the that "the standards for judging obscenitysafeguard the ro- :' ;.',: : _ :`F;*;1;public any particular book or performance, but to prevent the g p ' ,A. ��.'' .;erosion ofpublic moralitybythe increasingly general appear- ,tection of freedom of speech and press for material which Y .- g Y '...1,--``ance of what the Dallas ordinance delicately calls "sexually does not treat sex in a manner appealing to prurient inter '.�x ,-" ' est." Ibid. To begin with, we rejected the approach previ-`,- ,.;Held obscene in Commonwealth v. Friede, 271 Mass. 318, 171 N. E. ously adopted by some courts, which would permit the ban " ; , . 472'(1930). ! ping of an entire literary work on the basis of one or several,;; ," -s c l,r,'V Held obscene in:People v. Dial Press, Inc., 182 Misc. 416, 48 N. Y. S. passages that in isolation could be considered obscene. In-,,:,''.,, � +. - , f'; `-r-2d;480(I1. Y. Magis. Ct. 1944). stead, we said, "the dominant theme of the material taken as:' f;., . ,z,:, ,3,4 0 Held'obscene in United States v. Two Obscene Books, 99 F. Supp. 760 a whole" must appeal to prurient interest. Id., at 489 (em -F '� ( DjCal. 1951),aff'd sub nom. Besig v. United States,208 F. 2d 142(CA9 •phasis added). We have gone on to add other conditions;`� a. „,_'Unsuccessfully challenged as obscene in United States v. One Book which are reflected in the three-part test pronounced in - ' • „* Called "Ulysses,"5 F. Supp. 182(SDNY 1933), aff'd, 72 F. 2d 705 (CA2 Miller v. California, 413 U. S. 15, 24 (1973): _ t 71934). ice. .• ',;•, ' 252 OCTOBER TERM, 1989 ;fib:" FWIPBS, INC. v. DALLAS 253 � Opinion of SCALIA, J. 493 U. S. 4,4 ,.( }-' 215 Opinion of SCALIA,J. ' ,; i 4,_ _ oriented businesses." Such businesses flourish throughout z:.%�;Ft° perceived evil at which they are directed (viz., the very exist- the country as they never did before, not only in New York's `< .t$, ence of sexually oriented businesses anywhere in the commu- Times Square, but in much smaller communities from coast °:,.• r nity that does not want them), but they perversely render i`'" less effective our 'efforts through a restrictive definition of s, g to coast. Indeed, as a case we heard last Term demon- „ r,. r',„„ y, strates, they reach even the smallest of communities via tele- ,•••i obscenity, to prevent the "chilling" of socially valuable "dial-a- orn." Sable Communications of Calif ornia, - • € speech. State RICO penalties for obscenity, for example, phonicp Y . intimidate not just the porn-shopowner, but also the general I' Inc. v. FCC, 492 U. S. 115 (1989). • �• F; .. While many communities do not object to such businesses, 'Y,`�' �'``' bookseller who has been the traditional seller of new books others do, and have sought to eliminate them. Attempts to "' '•`:, such as Ulysses. , • ..-..-. :•• - It does not seem to me desirable to perpetuate such a re- do so by focusing upon the individual books, motion pictures, ,. .-: .: or performances that these businesses market are doomed to .. ,A, I,0.:,,, gime of prohibition by indirection. I think the means of ren- failure by reason of the very stringency of our obscenity test, 4:, $ dering it unnecessary is available under our precedents and i designed to avoid any risk of suppressing socially valuable ,' -3-. a .. , should be applied in the present cases. That means consists expression. Communities cannot close down "porn-shops" ,-','. k .,i, of recognizing that a business devoted to the sale of highly by banning pornography (which, so long as it does not cross ;::. , e,:,-,;. explicit sexual material can be found to be engaged in the the distant line of obscenity, is protected), just as Congress • .-':' marketing of obscenity, even though each book or film it sells cannot`eliminate specialized "dial-a-porn" telephone services ' , _ ,. ,, might, in isolation, be considered merely pornographic and by prohibiting individual messages that are "indecent" but _ '_=.. ' , " not obscene. It is necessary, to be sure of protecting valu- not able speech, that we compel all communities to tolerate indi- not quite obscene. Id., at 131. Consequently, communi- , `�:���,;��� "°:���.;,,• ties have resorted to a number of other means, including ., ;,• •.4:Ar• ;• vidual works that have only marginal communicative content 4 r .. beyond raw sexual appeal; it is not necessarythat we compel stringent zoning laws, see e. g., Young v. American Mini :; -�,�-�::�,. : . y pp p Theatres, Inc. 427 U. S. 50 (1976) (ordinance adopting un- ,..1 i- . them to tolerate businesses that hold themselves forth as usual zoning technique of requiring sexually oriented busi- .' , ; specializing in such material. Because I think that Dallas I� nesses to be dispersed rather than concentrated); Renton v. -;,,,, r ,' ~,could constitutionally have proscribed the commercial activi- Playtime Theatres, Inc., 475 U. S. 41 (1986) (ordinance re- ;.;,;-';r..;. ."4!,feties that it chose instead to license, I do not think the details 'I stricting theaters that show "adult" films to locations corn- ; -" ` ' ; ;''of its licensing scheme had to comply with First Amendment prising about 5% of the community's land area, where the ' :`` p gfi standards. Court of Appeals had found no "commercially viable" sites +`•. - ``-'! '' II were available), Draconian sanctions for obscenity which ...`r; `; . ,,:',:',Zr? 1 - r.:The Dallas ordinance applies to any sexually oriented busi- make it unwise to flirt with the sale of pornography, see Fort << , Ems.:;; Wayne Books, Inc. v. Indiana, 489 U. S. 46 (1989) (state �;r. 4•-. ,.. iz.rtess,,which is defined as "an adult arcade, adult bookstore or ,, Racketeer Influenced and Corrupt Organizations (RICO) .. • - W'-adult..video store, adult cabaret, adult motel, adult motion { 'picture theater adult escort agency, nude model statute), and the ordinance we have before us today, a license �`�'. ` , ,,,,I, , theater, ing scheme purportedly designed to assure that porn-shops - , .studio, or sexual encounter center." Dallas City Code are run bya better class of person. Not only are these 7 !§' - §41A-2(19) (1986). Operators of escort agencies and sexual r• ! encounter centers are not before us. 1 oblique methods less than entirely effective in eliminating the`'`',1,:- ��; . . 7,,�.,, ,. ,i ,1 •per:-. 254 OCTOBER TERM, 1989 FW/PBS, INC. v. DALLAS 255 il 1 • Opinion of ScALIA,J. 493 U. S. "' . ,, 215 Opinion of SCALIA,J. 1' "Adult bookstore or adult video store"is defined, inter alia, `,t = .s- "(A) the fondling or other erotic touching of human il as a "commercial establishment which as one of its principal • . genitals, pubic region, buttocks, anus, or female breasts; ', business purposes offers for sale or rental" books or other s; •� .,.. , "(B) sex acts, normal or perverted, actual or simu- printed matter, or films or other visual representations, F >", ..: lated, including intercourse, oral copulation, or sodomy; !, "which depict or describe`specified sexual activities' or`spec- *. ,_, "(C) masturbation, actual or simulated; or 11 ified anatomical areas.'" §41A-2(2)(A) (emphasis added).'. .w.; '..'= "(D) excretory functions as part of or in connection �� "Adult motion picture theater" is defined as a commercial ,,-..`.•i .' - with any of the activities set forth in (A) through (C) LI establishment where films "are regularly shown" that depict 'c` .?' above." §41A-2(21). 9 y P : :: ,: it specifiedp sexual activities or specified anatomical areas. '. �" `� '' ,. . areas" p • k,� Finally, "specified anatomical means "human genitals ii. §41A-2(5) (emphasis added).' Other sexually oriented busi- -, .. ° • '_ t -, �P ,..; in a state of sexual arousal." §41A-2(20). 1,. nesses are similarly defined as establishments that "regu- :_...', j, #` - "(6) Adult Theater means a theater, concert hall, auditorium, or similar !. larly" depict or describe specified sexual activities or speci- ,;;,5,„.• ,,�,.. '� v ,r.t`• y _ commercial establishment which regularly features persons who appear in fled anatomical areas. "Specified sexual activities" means z •, I ,� _. a state of nudity or live performances which are characterized by the expo ,I '4` . , ''' . sure of`specified anatomical areas' or by`specified sexual activities.' � ' Bookstore or Adult Video Store means a commercial establish- ,`,-.` :"�;,;, • • 11 ment which as one of its principal business purposes offers for sale or rental •• -. ~-,r: "(12) Nude Model Studio means any place where a person who appears in for any form of consideration any one or more of the following: .','I wry . a state of nudity or displays `specified anatomical areas' is provided to be �' Y', drawn, sculptured,photographed, y "(A) books, magazines, periodicals or other printed matter, or photo- ,-. .; observed,sketched, painted,scul taredor similarl graphs, films, motion pictures, video cassettes or video reproductions, ;.�r, -.;depicted by other persons who pay money or any form of consideration. :' •slides, or other visual representations which depict or describe `specified i>' a'� • "(13) Nudity or a State of Nudity means: �;`' sexual activities' or`specified anatomical areas';or r '`'y r ' .. `,s; ' "(A) the appearance of a human bare buttock, anus, male genitals, fe- (B) instruments, devices, or paraphernalia which are designed for use . .; r•r 4.;,•.,male genitals, or female breast; or h -" in connection with`specified sexual activities."' Dallas City Code§§41A— � •rt,t �; ;._,:, (B) a state of dress which fails to opaquely cover a human buttock,anus, i!! r f- ','" male genitals, female genitals, or areola of the female breast." §41A-2. P:Ii The regulation of businesses that sell the items described in subsection ''' ._' • s'=' °.As to nude model studios,the ordinance further provides as a defense to g'; (B)raises no First Amendment question. a x, prosecution that "Adult Motion Picture Theater means a commercial establishment. ,.,. ,, , ,;''f;;,a,person appearing in a state of nudity did so in a modeling class ,•'' where, for any form of consideration, films, motion pictures, video cas ;w ',;:' Y=,operated: settes, slides, or similar photographic reproductions are regularly shown 3 .. `�_+:"(1) by a proprietary school licensed by the state of Texas;a college,ju- 1 i which are characterized by the depiction or description of specif ed sexual f ;� nior,college, or university supported entirely or partly by taxation; �,1 activities'or`specified anatomical areas.'" §41A-2(5). '' ,,,y (2) by a private college or university which maintains and operates edu- °"(3) Adult Cabaret means a nightclub, bar,restaurant, or similar corn=,-,,,, „, . ; ;.rcational programs in which credits are transferrable to a college,junior col- 1 mercial establishment which regularly features: L lege,'or university supported entirely or partly by taxation; or I1 I "(A) persons who appear in a state of nudity; or ,',ate- ;F a<i(3) in a structure: Ili i "(B) live performances which are characterized by the exposure of`spec ,4',--: *,1,(A):which has no sign visible from the exterior of the structure and no ki ified anatomical areas'or by`specified sexual activities'; or >;rCi •-x, ; .. Qther.advertising that indicates a nude person is available for viewing;and "(C) films, motion pictures, video cassettes, slides, or other photon 8"` • i7;4 "(B):where in order to participate in a class a student must enroll at 11 graphic reproductions which are characterized by the depiction or descrip-..,,* - �t least'three days in advance of the class; and ii tion of`specified sexual activities'or`specified anatomical areas.'" d r "(C),where no more than one nude model is on the premises at any one . i19', 'tune°;'. §41A-21(d). ) ,fir y 1 r'?, , r ' ' ' a' ,,,. ail • Y4 256 OCTOBER TERM, 1989 `"h '` FW/PBS, INC. v. DALLAS 257 ¢y Opinion of SCALIA,J. 493 U. S. =;,,,e A y 215 Opinion of SCALIA, J. 4 ' As I shall discuss in greater detail presently, this ordi- - ' _ ' circumstances, pretense or reality—whether it was the nance is unusual in that it does not apply"work by work." It basis upon which it was traded in the marketplace or a s =':,:•; can reasonably be interpreted to restrict not sales of(or busi- ;\;��, ,;};,._z,,.; spurious claim for litigation purposes. Where the pur- nesses that sell) any particular book, film, or entertainment, y;.:, ,,;; ;�, veyor's sole emphasis is on the sexually provocative as- Ii but only businesses that specialize in books, films, or enter- '±;, .;, , pects of his publications, that fact may be decisive in the tainment of a particular type. That places the obscenity in- 11 ;;_ -'-; ,;fi. determination of obscenity. Certainly in a prosecution quiry in a'different, and broader, context. Our jurispru- -?-•=',,•; j' ri•;; , • which, as here, does not necessarily imply suppression of dence supports the proposition that even though a particular u ': the materials involved, the fact that they originate or are " work of pornography is not obscene under Miller, a merchant <.4=: ;r •;:.. used as a subject of pandering is relevant to the applica- who concentrates upon the sale of such works is engaged in -,`.;' ' ,., .%4_ tion of the Roth test." Id., at 470-471. ` the business of obscenity, which may be entirely prohibited .,-�. =',' •v, _, ,:.. We held one of the three publications in question to be, in the 4 and hence (a fortiori) licensed as required here. c ' - '; ' circumstances of its sale, obscene, despite the trial court's ,, The dispositive case is Ginzburg v. United States, 383 ; r::. ,ding that only 4 of the 15 articles it contained "predomi- 1 U. S. 463 (1966). There the defendant was convicted.of vi- ''' �-.'. ::;nantly appealed to prurient interest and substantially ex- {I olating the federal obscenity statute,. 18 U. S. C. §1461, by , ,.�<,.�' candor," ' t , ;�; ,,1; ,.: ,•ceeded community standards of id., at 471; and an- mailing three publications which our opinion assumed, see �, , ' _:• ;: other to be obscene despite the fact that it previously had • ;; 383 U. S. at 465-466, were in and of themselves not obscene. ' i.,' ; a.. ,,.' : been sold by its author to numerous psychiatrists, some of lI We nonetheless upheld the conviction, because the evidence Tway.-, ` ' whom testified that theyfound it useful in theirprofessional : , . t+ showed "that each of the accused publications was originated *t ,,:V_.practice. We upheld the convictions because the petitioners ,I or sold as stock in trade of the sordid business of pandering— ;:..: "�'=-; :, s had "deliberately emphasized the sexually provocative as- `1 the business of purveying textual or graphic matter openly : ; _<<�ns'pects of the work, in order to catch the salaciously disposed." a advertised to appeal to the erotic interest of their custom- _,, sf� ', Id., at 472. ers."' Id., at 467 (quoting Roth v. United States, 354 U. S., ;k j, k :In Memoirs v. AttorneyGeneral ofMassachusetts, 383 il at 495-496 (Warren, C. J., concurring)). JUSTICE BREN- r�';5 • ,�„ <::,*U:;.S. 413 (1966), decided the same day as Ginzburg, we over- NAN's opinion for the Court concluded that the advertising, ;, �-,, ' turned the judgment that a particular book was obscene, but, for the publications, which "stressed the[ir] sexual candor," , ' ,: ,citing Ginzburg, made clear that this did not mean that all il 383 U. S., at 468, "resolve[d] all ambiguity and doubt" as :.,;.,f - _ `',,',';Y" 'circumstances of.its distribution would be constitutionally i. ' to the unprotected status of the defendants' activities. Id. ' =�5' x .v protected• We said: at 470. .�' ;: r• :••« }' '.4.. On the premise, which we have no occasion to assess, II "The deliberate representation,of petitioners' publica- i ' -:that Memoirs has the requisite prurient appeal and is pa- ti' tions as eroticallyarousing, for example, stimulated the .., `" -m .t.rtentl offensive, but has onlya minimum of social value, ' g, A *, Y reader to accept them as prurient;he looks for titillation, ,•,4; ,., , 4, :the circumstances of production, sale, and publicity are I not for saving intellectual content. . . . And the circum- =f'';' .- .; •bi ;relevant in determining whether or not the publication stances of presentation and dissemination of material are a; ; , - ,➢ts .or distribution of the book is constitutionally protected. equally relevant to determining whether social impor ;r ` „ 4.,4 .-....:-..::. In this proceeding, however, the courts were asked tance claimed for material in the courtroom was, in the ,: "•"�" ` to judge the obscenity of Memoirs in the abstract, and J FW/PBS, INC. v. DALLAS 259 OCTOBER TERM, 1989 R` '`"': 258 f,t'. . -:'` u .et' Opinion of SCALIA, J. 493 U. S. J O .,'• 4i. 215 Opinion of SCALIA,J. III the declaration of obscenity was neither aided nor lim- : . ;'Y,:`,j_ ;:r: tI ited by a specific set of circumstances of production, sale, ,, ,,, ,, In evaluating the Dallas ordinance under the principles I and publicity. All possible uses of the book must there- Div :• "• have described, we must of course give it the benefit of any fore be considered, and the mere risk that the book might .:4 4 ,• t1=; «Ming construction [that] has been or could be placed" on I panderers because it so pervasively = r f, its text Broadrick v. Oklahoma, 413 U. S. 601, 613 (1973). s be exploited by _;;.;, � ,.,,::.: treats sexual matters cannot alter the fact . . . that the •, ,.;;.i Moreover, we cannot sustain the present facial attack unless i,, :` '`` 5 s=`.'' the ordinance is "substantially overbroad," id., at 615 (em- 11 book will have redeeming social importance in the hands f .�y.,;; of those who publish or distribute it on the basis of that ff,= :;phasic added), that is, "unless it reaches a substantial num- ra ; ; ber of impermissible applications," New York v. Ferber, 458 value." 383 U. S., at 420-421 (footnote omitted). - ." ry 4,1 ;U. S. 747, 771 (1982), "judged in relation to the statute's ill of • z.; - .-:,: „plainly legitimate sweep," Broadrick, supra, at 615. 'p Ginzburg was decided before our landmark Miller decision, ;` .. , "; but we have consistently applied its holding post-Miller. . $a; : ,Favorably construed,:the Dallas ordinance regulates only See Hamlin' v. United States, 418 U. S. 87, 130 (1974); 1.. $� ;the business of pandering, as I have defined it above. It 1;. Splawn v. California, 431 U. S. 595, 597-599 (1977); Pinkus ux dF sh•ould be•noted,;to begin with, that the depictions, descrip- e v. United States, 436 U. S. 293, 303-304 (1978). Although Fr: ,•r tibns, and displays that cause any of the businesses before us �, ' ,,.qualify as a "sexually oriented business"must be sexually ti.� Ginzburg narrowly involved the question whether particular i5,-: .,,i'6';" r,, the foundation for its holding is ;explicit in more than a minor degree. What is at issue here t; publications were obscene, ` �n a that "the sordid business of pandering," Ginzburg, supra, at . ,..:; is.,notlthe sort of nude photograph that might commonly ap- i ' ��E=pear�on a so-called "pin-up calendar" or "men's magazine." f� 467,is constitutionally unprotected—that the sale of material `rk`:;' Tlie mere portrayal of the naked human body does not qualify "solely to produce sexual arousal . . . does not escape regula-,; ,_,; ;u ; ..t. aw,":�. , ;,��unless`(in the definition of adult cabaret, adult theater, and �,� tion because[the material]has been dressed up as speech, or �.. .. "fade model studio) it is featured live. Qualifying depictions in other contexts might be recognized as speech." 383° r; . ' :';*�=ds};descriptions do not' include human genitals, but only U. S., at 474, n. 17. But just as Miller established some ob-;-.;:�_: = ;,i� jective criteria concerning what particular publications cari:'e'��„�,� . ,'��h"1i�tan'genitals in a state of sexual arousal, the fondling of ogfehous zones, and normal or perverted sexual acts. Iia be regarded as "appealing to the prurient interest," pit, - fiLaddition, in order to qualify for regulation under the or- , impliedly established some objective criteria as to whatss :., . ihce the business that provides such live nudity or such r stock-in-trade.can be the raw material (so to speak). of pant;> • :eaally.explicit depictions or descriptions must do so"as one 9 dering. Giving this limitation full scope, it seems to me that;4. -. . - •o 1t principal business purposes" (in the case of adult.book- "i Ginzburg, read together with Miller, establishes at least the;,-. 'a a pandxadult!video stores) or "regularly" .,(in the case of 11 q c 141 n Otion picture theaters, adult cabarets, and adult the- !f I following: The Constitution does not require a State .or`' '' �; ' ' ' municipality to permit a business that intentionally special,.t' ' feVigfiriAti Tra�'a:The adverb "regularly" can mean "constantly, con- f izes in, and holds itself forth to the public as specializing ih , ually'3steadily,.sustaiiiedly," Roget's International The- performance or portrayal of sex acts, sexual organs in a state:, :- : j us' ,§135.7, P. 77 (4th ed. 1977), and also "in a 1 of arousal, or live human_nudity. In my view that suffices;to .-, f.;ethOdical wa Webster's Third New International Dic- ' . 19„13(1981). I think it can reasonablybe interpreted a Dallas ordinance. ' p ;' sustain the ,�.'�•� ;�s��,':,t. � , . �. £� fs; :, FWIPBS, INC. v. DALLAS 261 OCTOBER TERM, 1989 ,1 T pt h i 260 493 U. S. n' y ,q„' 215 Opinion of ScALIA,J. Opinion of SCALIA,J. ",,r= .•,.. t IT',. is!,'; yAk.9�.. , it '.i,�E 't: Q� in the present context to mean ae continuous objectivesation of 'of the '3 i w_" likely—especially if that should betained in all excerth ught ne a sary to sus �i, the' sexual material as rone of the very s commercial enterprise. Similarly, the phrase "as one of its .y , ,,, tain the constitutionality of the measure—that the Dallas or- ;Ill dinance in all its challenged applications would be interpreted principal business purposes" can connote that the materialti a,,.;,. to apply onlyto businesses that not only1 offer live nudity containing the specified :°','' ti: _'� ;,: depictions and descriptions does 3 � pp Y ,�<�.r �� ,,„:�;. , or hardcore sexual material, (2) as a constant and intentional that _� = �`,� -. objective of their business, but also (3) seek to promote it as not merely account for a substantial proportion of sales vol- i yam. ume but is also intentionally marketed as material of • ,,,• ;. ,' such. It seems to me that anybusiness that meets•these re- character. therefore, share the i i,4g,.4 quirements can properly be described as engaged in"the sor- ;i All of the establishments at issue, did business of pandering," and is not protected'by the First : '.ass.,: .,:' :'. II characteristics that they offer(1)live nudity or hardcore sex- ;� .�. ';' �r;,.;- ual material, (2) the single exception `' '4 .'...,,1:::-would suffice to sustain the ordinance, since it is most implau- as a constant, intentional objectiveg of their F� •� � ��.••:.: Amendment. Indeed, even the first two requirements alone , ; business. But there is still more. With :^. L(.:a ,,.'',._., Y p11 of"adult motion picture theater," the descriptions of all lie ;, }} t`_ sible that an enter rise which has as its constant intentional ,,I that suggests �' objective the sale'of such material does not advertise or pro- I. establishments at issue contain some language , . a requirement that the business hold itself forth to the public }Y' •al failure should exist they wouldreerta my not be umer- I I precisely as a place where sexual stimulation of the described =_ '''' pus enough to render the ordinance substantially overbroad. it would be permissible to in- = ;.- , �y , sort can be obtained. Surely purposes" ' .. ' '- The. Dallas ordinance's narrow focus distinguishes these f1 terpret the phrase"as one of its principal oraadultiv'deo ness ore" to '.,;` r . ,,", . 'cases from Schad v. Mount Ephraim, 452 U. S. 61 (1981), in !�I in the definition of "adult boo 7 which we held unconstitutional a municipal ordinance that t I require such holding forth.. A business can hardly have as a :, [ 1 pro- i A. rohibited all businesses offering live entertainment includ- 1.1 urpose a linert on of the definitions of"adult of commerce it does not even abs' . t ing but not limited to nude dancing. That ordinance was principal p the portion _� li3 mote. Likewise, regularly w, ;,,substantially overbroad because, on its face, it prohibited "a �! aret" and "adult theater" which requires that they that it ,i i- _ f ` '4 ,vinde range of expression that has long been held to be within sq "feature" the described sexual material suggests or marketed as �4Ahe.protections of the First and Fourteenth Amendments." ,i, o�• not merely be there but must be p `f:;1Id:;'�at 65. The Dallas ordinance, however, targets only j such. The definition of nude model studio, while which coast mg - • . 2 i1� no such requirement, is subject to a defense the studio is. ', �, Even if it were possible unprotected o conceive of a business that could ,� as one of its elements that the structure ains r ', z !• located"has no sign visible from the exterior of the structure 0. ` �;_meet--the above-described qualifications and yet be engaged i na- and no other advertising that indicates a nude person is avail- ;,; _in First Amendment activities rather than pandering, we do }r able for viewing." Dallas City Code§41A—of 3)(A)(1986) ... , v, :�t on1alonedatWe haute always held th t we will onot applyes as overbroad on the basis of gthat III ir Even the definitions of the two categories of enterprises not'-' -34 ' at issue in this case, escort agencies" and "sexual encounter :, 'eub tanmad�cinBroadrick ve" unless e supra t at 613, 615. ;1 11 11 that arguably requires a "holding ' Oklahoma, 1 centers," contain languagerequirement). Given . - -4.'=I think:we must sustain the current ordinance just as we sus- '� forth" (a "primary business purpose 4i ' 11 importance of "holding forth" con-`t " ' tamed?.the statute at issue in New York v. Ferber, supra, 4 these indications of the ' - �4 , II g ;/, r rt Y „ '_'�= , `' FW/PBS INC. v. DALLAS • 263 262 OCTOBER TERM, 1989 ::1,° �; s,: i Opinion of SCALIA, J. 493 U. S. ', ,. r'`'::: 215 Opinion of SCALIA, J. which forbade the distribution of materials depicting minors ;;t.,r .>- sure, specifically argue Ginzburg, or suggest the complete in a "sexual performance." The state court had applied ;- - ,. ..;,-i proscribability of these businesses as a basis for sustaining i overbreadth analysis because of its "understandabl[e] con C Ft, -their manner of;licensing them. But we have often sus- cer[n] that some protected expression, ranging from medical ;..—,,., ,;:,z.Y;{• tamed judgments on grounds not argued—particularly in the ;• textbooks to pictorials in the National Geographic would fall k.yy, 7`."area of obscenity law, where our jurisprudence has been, let ,,,,`r-".us say; not entirely predictable. In itself for ex- prey to the statute." Id., at 773. "We said: �,.,., � a�;;,_, Y, p Ginzburg �,;;�.ample, the United States did not argue that the convictions ; "[W]e seriously doubt, and it has not been suggested, ,.• , _ "could be upheld on the pandering theory the Court adopted, ,j that these arguably impermissible applications of the :; `,*s ; _;_ � h but only that.the materials sold were obscene under Roth. I,� statute amount to more than a tiny fraction of the ma- y Brief for United States in Ginzburgv. United States, 0. T. III terials within the statute's reach. Nor will we assume . :;F , • 3965 No. 42, 18. In Mishkin v. New York, 383 U. S. 502 that the New York courts will widen the possiblyinvalid ;:;; �°".1- '' -: ;`��(1966), one of the companion cases to Ginzburg, the State of ;i reach of the statute by giving an expansive construction Fti`.:4 New York defended the convictions under Roth and explicitly to the proscription on 'lewd exhibition[s] of the genitals , '�; �; ;disagreed with those commentators who would determine ob- I, Under these circumstances, §263.15 is 'not substantially y.1. . ;. , jpeenity by looking to the "intent of the disseminator," rather ,J overbroad and whatever overbreadth may exist 1,-Mth'an:"character of the material." Brief for Appellee in Mish- ;� should be cured through a case-by-case analysis of the `a`- '. :.,.; '" ~,:;;-kinw New York; O. T. 1965, No. 49, p. 45, and n. See also fact situations to which its sanctions, assertedly, may not a _ ,$ ,'Brief for Appellee in Memoirs v. Attorney General of Massa- be applied.' Broadrick v. Oklahoma, 413 U. S., at 615— ,; _ chusetts, 0. T. 1965, No. 368, p. 17 (defending convictions ,;;; 616." Id., at 773-774. ay, ' F.. •.'.;°under Roth and Manual Enterprises, Inc. v. Day, 370 U. S. {1 '` = `,4781(1962)). Likewise in Roth, where we held that the test 1,1 The legitimate reach of the Dallas ordinance"dwarfs its argu �4 :,J; + „ .1! ably impermissible applications." Id., at 773. . 's_; , = ;for,obscenity was appeal to prurient interest, 354 U. S., at id To reject the present facial attack upon the ordinance is ,,..;. _ 489; the United States had argued that obscenity was estab- 11 not, of course, to deprive someone who is not engaged in pan s :E ;ilhshed if the material "constitutes a present threat to the 1; dering and who is somehow caught within its provisions (if + ; , morals of the average person in the community." Brief for that could possibly occur) from asserting his First Amend.,; p - M,.aU,iuted;States in;Roth v. United States, 0. T. 1956, No. 582, ; ment rights. But that eventuality is so improbable, it seems "_ ri :r,p:100, And no one .argued that the Miller Court should to me, that no substantial quantity of First Amendment ac ' - abandon the "utterly without redeeming social value" test of tivity is anticipatorily "chilled." The Constitution is ade- -* 7,he;:Memoirs plurality, but the Court did so nevertheless. .I'. quately safeguarded by conducting further review of this rea- , ' ,Compare 413 U. S., at 24-25, with Brief for Appellee in tiler.v: California, 0. T. 1972, No. 70-73, pp. 26-27. ¢h sonable ordinance as it is applied. • ,;,;; ,: ill JUSTICE O'CONNOR's opinion correctly notes that respond,*:,:-;., ` ;,.,, •1,, :. ents conceded that the materials sold are protected by they "',The mode of analysis I have suggested is different from the 11 First Amendment. Ante, at 224. But they did not concede („ .-rigid,test for obscenity that we apply to the determination ' that the activity of pandering at which the Dallas ordinance is4'';} '',wkiether..a particular book, film, or performance can be directed is constitutionally protected. They did not, to be ., ,tinned, ' The regulation here is not directed to particular I t'rs _' ,. a ' _ . . . , . . ill �. 111265g, 1989 ;'` ,:+ ' ` SPALLONE V. UNITED STATES ' ` 'I;`,- 264 OCTOBER TERM, � �s" il'^' 493 U. S. Syllabus ''' Opinion of SCALIA,J. ., r. , +. •works or performance, but to their concentration and the. ':. • ,;` .:..E_. '` '�' SPALLONE v. UNITED STATES ET AL. constitutional analysis should be adjusted accordingly. ' �. ,'•:•.�: ; What JUSTICE STEVENS'wrote for the plurality in American "h- c`• . ';;,;, '- 1. s-+CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR Mini Theatres is applicable here as well: " e learned long , s; ;'5; ';'" THE SECOND CIRCUIT ',' ago that broad statements of principle, no matter how correct .,�i:;+.. •,•,'a,.<,,-;$1_ - • :: t. '>4-. - T :A!,i:No. 88-854. Argued October 2, 1989—Decided January 10, 1990* in the context in which they are made, are sometimes quali--,>.: , ,, .•., lied by contrary decisions before the absolute limit of the,;' 'E': , g, '`' ;��.�In;1985;in a suit brought by the United States, the city of Yonkers and its �f=• stated principle is reached." 427 U. S., at 65. The prohi= Y' r jycommunity development agency were held liable' for intentionally en- bition of concentrated pornography'here is analogous to the,';; ,: , . r. ;:1, hancing segregation in housing in violation of Title VIII of the Civil 1 4� ; • ,,. Rights Act of 1968 and the Equal Protection Clause of the Fourteenth s prohibition we sustained in American Mini Theatres. There• k; • ; , . P,, .,.Amendment. In early 1986, the District Court entered its remedial' we upheld ordinances that prohibited the concentration of: : 4 x° 'oorder,.which enjoined the two named defendants and their officers, :, sexually oriented businesses, each of which (we assumed) '�'" '' agents, and others acting in concert with them from discriminating and t ft� purveyed material that was not constitutionally proscribable:t q�; required the city to take extensive affirmative steps to disperse public l; Dousing throughout Yonkers. Pending appeal of the liability and reme- ;,I': Here I would uphold an ordinance that regulates the con-;�;;:�� �,., ;,�;,, ;. ,!tlial"orders, the city'failed and refused to take various of the required ,! centration of sexually oriented material in a single busineaa� `. • steps.,:,: Shortly after the Court of Appeals affirmed the District Court's °a The basis of decision I have described seems to me the E rjudgment in all res ects the parties agreed to a consent decree settin :;st proper means, in Chief Justice Warren's words, "to reconcile;; `.: , forth;certain actions which the city would take to implement the reme- } the right of the Nation and of the States to maintain a decent}r. , ,{='dial•`order, including adoption, within 90 days, of a legislative pack- , • I. ,tNR,). • ';''1-A society and, on the other hand, the right of individuals to ex k�;: '', .Fe;known as the Affordable Housing Ordinance. The decree was ap- ,,,,, roved in a 5-to-2 vote by the city council—which is vested with all of the ,'; press themselves freely in accordance with the guaranteea.of: . ` u. ..a ,_5 w•- "K%dty�s;legislative powers—and entered by the District Court as a consent i ii�� the First and Fourteenth Amendments." Jacobellis v Ohio;• *gym ;;, -.judgment in January:1988. . When the city again delayed action,the Dis- '; 6 378 U. S. 184,.199 (1964) (dissenting opinion . It entails no,7'.! ' ' V . iiet Court entered an order on July 26, 1988,requiring the city to enact 'i' ����- , �,.,�_ "jib risk of suppressing ressin even a single work of science, literature,. A.:f,1ie`ordinance and providing that failure to do so would result in con- , ,�., PP g g •,: — or art—or, for that matter, even a single work of pornograi,,_ . .',tempt,citations, escalating daily fines for the city, and daily fines and ;;( is prisonment for recalcitrant individual councilmembers.• After a reso- :I SA phy. Indeed;I-fully believe-that-in-the-long-run-itwill-expand �:' : 1 tlori`of intent to adopt the ordinance was defeated by a 4-to-3 council i,� rather than constrict the scope of permitted expression,;bed•;, - vo e, etitioner individual councilmembers constituting the majority,the '; "'j cause it will eliminate the incentive to use, as a means ofpre,-`,.'.. " '" .,. -t t,vlet'�Court held the city and petitioners in contempt and imposed the ;''t: venting commercial activity patently objectionable-to large ci4tionssset forth in the July 26order. The Court of Appeals affumed, iiiPi, �� �"i eetii'`inter alias petitioners' argument that the District Court had 'I' segments of our society, methods that constrict unobjectiori y g7,.,. ': ; edits discretion in sanctioning them, After this Court stayed the ;+{Iw able activityas well. : :•=' •' F'r'�' `" fi ;��ition,of sanctions against the individual petitioners,but denied the ;,,; ., For the reasons stated, I respectfully dissent. Aft:'': the' .:ili'1 tyyg;,request for a stay, the city council enacted the ordinance on Sep- .! f. •.`:�` :., t �r, I liit6,9,.,,1988, in the face of daily fines approaching$1 million. l I ��I�S � NO % ..ether,with No. 88-856, Chema v. United States et al., and No. 88- ii, g. '_ .,. ` '; !o�'etal. v United States et al., also on certiorari to the same :, :?�< :j�Ilp II "•"t ' 92 EVERETT v. HEIM Sept. 19E, • .'''' 'Sept: 1993 EVERETT v. HEIM • 393 , $�' 71 Wn. App. 392, 859 P.2d 55 ,,; - 71 Wn.App. 392, 859 P.2d 55 k , • 't+`` ,M .[4]` Obscenity—Sexual Conduct—Regulation—Touching by , We conclude that Bellevue's obligation to notify Molloy of,, ;, �`r'it;�.•; r; 4 i! �, Adult Entertainer—Validity—Overbreadth.A legislative act L , ham;_:- other employment ended when Molloy expressed his`intent ,�. ' ;; : , 4i i . t prohibiting an employee of a licensed place-of adult entertainment to move to California. If Molloy was indeed interested m . '�� from touching a patron for•the purpose of arousing the patron's ,; i' other employment"to ent"with the Cit he had a dutyto somehow ` '` ,- c.� :, f l p ym y, ,� ,;,- sexual desires, sitting on a patron's lap, or separating a patron's r �utv � put Bellevue on notice of this interest. Because he failed to:.i` .. .0} ; , legs is not unconstitutionally overbroad. • ,, t' Il :. , do so, he cannot now claim that Bellevue's failure to notify ^„.• .1', [5]' Criminal Law—Statutes—Vagueness—Test.A legislative Q -, (£; him of other job openings constituted a failure to accommo; ' -_t�.>i,;_~ act is not unconstitutionally vague unless it forbids conduct in a.j x , � "` terms so vague that persons of common intelligence would neces •,',11: date his handicap. Therefore, we hold that no genuine issue . ., i�r i .;, _ sarily have to guess at its meaning and would differ as to its I,,� • of fact was raised regarding Bellevue s failure to accommo f �� ` I, ;, 1 re ;. application. k ` date Molloy with nonpolice employment, and we reverse ` ,, ' "i` • Obsceni Sexual Conduct—Re lation—Touching by Q". ,: this portion of the trial courts order. — , ' •`' ,'^+.;;�:'�,.^tNa:,Adult Entertainer—Validity Vagueness.A legislative act ';w, ' 0 , . The order of the trial court is affirmed inpart and reversed • •,;;b i; ,• p g employee p ; { >,l `, rohibitin an em to ee of a licensed lace of adult entertain . i`' u1 part. `,'•'Y" ment from touching a patron for the purpose of arousing the I�" „`-." d . 'patron s sexual desires, sitting on a patron's lap, or separating a d i }'l; 1, GROSSE and BAKER, JJ., concur. `"R' ` ' .a k Gii K•,-patron's legs is not unconstitutionally vague. re l%"w,i Reconsideration denied October 4 1993. ')''[7]..Constitutional Law — Equal'Protection — Classifications j L s;�,; ' t.'. - "'•., .; — Minimal Scrutiny — Test. A legislative classification that g Review denied at 123 Wn.2d 1024 1994 . ; ��,"` '�', ''¶'' ''"" ) does not create an inherently suspect class or affect a fundamen- r.'��,, : � • • , , 8t , I4" ;�tal right satisfies the minimal scrutiny, rational basis test if(1) ,;, 1 ' r'' u , t ,r 4it1', the classification applies alike to all members of the class;•(2) ' '{?' 5 , there are reasonable grounds for distinguishing between those 11' :,: ; Y!;;''within.and those outside the class; and (3) the classification has , 1 ' �': [No. 29316 8 I. Division One. September 13, 1993.] is r" � ,;•:,) a rational relationship to the purpose of the legislation. pi <; [8]"Obscenity—Sexual Conduct—Regulation—Touching by r u], ,i . , ". t r''';, Adult Entertainer—ValidityEqual Protection.A le sla- %P` j THE CITY OF EVERETT Res Respondent, V. TRACI A. r,4ta• — q '{ l ;z [f, P if, r- ,.,tive act prohibiting employees-of a licensed place of adult enter- %I d ,, 1 j HEIM, Petitioner , 1,z3i'tainment from touching a patron for the purpose of arousing the [1] Constitutional Law — Freedom of Speech — Speech V � 4 ,1J• "(^.patron's sexual desires, sitting on a patron's lap, or separating a I?tt 4 3SP patron's legs does not violate the employees right to equal pro- t' 1` What Constitutes — Conduct. Pure conduct is not protected .. Y,b;�- ;i` • 1, 0; by Const. art. 1, § 5 or the First Amendment. 't;� tection of the laws. • • li t i. [2] Obscenity—Sexual Conduct—Regulation—Touching by t . W..,';Nature of Action: A dancer was charged with violating t '. I Adult Entertainer—Validity—Reasonableness.A legislative"<;. ..;',aom»nicipal ordinance that prohibits touching a patron for "1' c, act prohibiting an employee of a licensed place of adult entertain7ft e., the°purpose of arousing the patron's sexual desires. ;;� Llai' ment from touching a patron for the purpose of arousing.the,, �� T` i patron's sexual desires, sitting on a patron's lap, or separating ass °�' ,MIJniClpal Court: The Everett Municipal Court, No. 90- a of patron's legs regulates conduct only and is reasonable. !} f^ ;i 3490,David C.Mitchell,J. on May 13, 1991,entered a judg- ,r�i fir,. 3 ,t > *, ... :- [3] Criminal Law — Statutes — Overbreadth — Amount of.• ,k1_ k',`'i ent.on a verdict of guilty i! a Constitutionally Protected Conduct. A legislative'act that: '` s"^ '` 'ii regulates conduct only,and not speech,is unconstitutionallyover-�'„. ;Superior Court:The Superior Court for Snohomish County, , • ? l' y' p a ml�o:.91-1-00605-3, Larry E. McKeeman, J., on September 25, ,s ik broad only if it sweeps within its proscriptions a real and substan 1,i• ,; a it,f tial amount of constitutionally protected free speech activities '. , •1991, affirmed the judgment. t`i •Id . } • it it ,l.Iit7777tt' ,1Y,�• � J' ' I:Iryb 4 1' 94 EVERETT v. HEIM Sept. 199 ! It to t 1993 EVERETT v. HEIM 3a� v I 71 Wn. App. 392, 859 P.2d 55 ' .• 71 Wn. App. 392, 859 P.2d 55 Court of Appeals: Holding that the ordinance regulates conduct only, is not overbroad, is not unconstitutionally r ' refused to give this instruction, and gave an instruction that made no mention of obscenity. Heim was found guilty. f; vague, and does not violate the dancer's right to equal protec- �: Heim appealed to the Snohomish County Superior Court tion of the laws, the court affirms the decision of the Superior . . , t pursuant to RALJ 2.2. She unsuccessfully challenged the . ..c Court and the judgment. ' refusal of the trial court to give an instruction which included i f1 Jack R. Burns and Burns & Hammerly, for petitioner obscenity as an element of the crime. We granted discretion- . 1: • Michael E. Weight, City Attorney, for respondent. ary review pursuant to RAP 2.3(d)(1) to determine whether ,. "the decisions of the courts below conflict with the decision of „• BAKER, J. —Traci Heim seeks review of her conviction for .,the Supreme Court in O'Day v. King Cy., 109 Wn.2d 796, 749 violating an Everett city ordinance which sets a standard of P.2d 142 (1988). ` conduct for adult entertainers. She alleges the trial court I ',a erred by not using her proposed jury instruction, and that . The first issue involves the interpretation of EMC 5.120- the ordinance is unconstitutional. We find the ordinance to , 190(C), which provides that chapter 5.120 shall not be con- be constitutional and affirm. " rued to prohibit exhibitions or dances which are not ob- . 6.•ne.Heim argues that the conduct which led to her arrest FACTS Traci Heim was charged with violating Everett Municipal as a dance performance protected by the First Amend- Code (EMC) 5.120.070(C), which states: "No employee or,•_ ! ent and article 1, section 5 of the Washington State Con- stitution. Therefore, any incidental touching of a patron entertainer shall touch, fondle or caress any patron for the , cotild only be prohibited if the dance was, as a whole, ob- purpose of arousing or exciting the patron's sexual desires; scene. She therefore requested a "to convict" jury instruc- sit on a patron's lap or separate a patron's legs.' A'' tion that required a finding that her conduct was obscene. Heim was working as an employee at a licensed public �-• ;`The Washington Supreme Court construed a similar icing place of adult entertainment. "Adult entertainment" is .. : County ordinance under similar facts in O'Day v. King Cy., defined as supra. King County Code 6.08 contained standards of con- any exhibition or dance of any type conducted in premises where r IF.,,.; such exhibition or dance involves the exposure to view of any 'uct,for entertainers in adult clubs, and exceptions to those I, portion of the breast below the top of the areola or any portion of 8 0: dards. The exceptions included a provision that the the pubic hair, anus, buttocks, vulva and/or genitals. i rN'na•nce not be construed to prohibit a variety of constitu- R. .� EMC 5.120.020(A). The violation took place during a couch ,` 'inally protected expressions, including nonobscene dances. dance. Petitioner claims, and respondent does not deny, that, _k.a court found: ,' she was fully clothed during the dance. g ' By themselves,the standards of conduct are overly broad and 0 EMC 5.120.090(C) states: "This chapter shall not be con-i i each protected expression. However, the [exceptions] of KCC .6.08.050(D), read together with the standards of conduct, can 1, strued to prohibit . . . [e]xhibitions or dances which are not' , 1 imit chapter 6.08's application to pure conduct and obscene obscene."Heim asked the Everett Municipal Court to instruct expression. ° the jury that a required element of the offense charged was (• 0 ay, 109 Wn.2d at 806. Thus, the court held that the ordi- that her dance performance was obscene. The trial court ; : ,ce did not unconstitutionally infringe on freedom of i.i +4 396 EVERETT v. HEIM Sept. : Sept. 1993 EVERETT v. HEIM 397 71 Wn. App. 392, 859 P.2d 55 71 Wn. App. 392, 859 P.2d 55 speech if a proper limiting construction was placed on the ordinance is to regulate public sexual contact. Although the ordinance. O'Day, 109 Wn.2d at 818. ordinance may incidentally impact the entertainer's artistic ''. Li] The O'Day court found that the King County ordi- " choice by forbidding lap sitting or separation of a patron's nance regulated conduct, and not merely speech.' O'Day,'4, ' <<, .legs, that impact is not real and substantial. Such prohibi- ; 109 Wn.2d at 804. Pure conduct does not enjoy the protect ''''',I tions on an entertainer's conduct do not infringe upon free- .1 1tion of either article 1, section 5 of the Washington Consti- ; , ' '' dom of expression in any meaningful way, and the ordi- , i" tution or the First Amendment. Seattle v. Buchanan, 90 •:-, • ,, nance is not overbroad. .• Wn.2d 584, 584 P.2d 918 (1978); O'Day, 109 Wn.2d at 803. a"4 Although we hold that the ordinance regulates pure con- [2] The Everett ordinance likewise is a constitutionallyrt - duct we would uphold it even if it were interpreted to apply t! s x P , permissible regulation of conduct, not of artistic expression to protected speech. [if!or any other form of protected speech. The standards of:`; ' . ' The constitution allows regulation of protected speech in , conduct regulate the distance that an entertainer must `" certain circumstances. Seattle v. Huff, 111 Wn.2d 923, 926, ,,, ,.; maintain from a patron in an adult entertainment estab- '767 P.2d 572 (1989) (citing Bering v. Share, 106 Wn.2d 212, lishment. Given the City's interest in prohibiting public sex--<. 221-22, 721 P.2d 918 (1986), cert. dismissed, 479 U.S. 1050 • ual contact, regulation of the proximity between an enter! (1987)). The constitutional standard to be applied depends tainer and a patron in an adult club is a reasonable exerciserr. on whether the forum is public or nonpublic. Yakima v. of the City's authority. Irwin, 70 Wn. App. 1, 7, 851 P.2d 724 (1993). Speech in pub- II ' lic forums is subject to valid time, place, and manner re- strictions which are narrowly tailored to serve a significant Heim claims that the portions of the Everett ordinance },�� 2. which prohibit sitting on a patron's lapor separating '1-"government interest, and leave open ample alternative chan- yaj p g a eels of communication. Huff, 111 Wn.2d at 926. Speech in i patron's legs entire sectionC 5. void.0(C)) are overbroad, thus ren ,onpublic forums may be restricted if the distinctions drawn l ;+ dering the sare reasonable in light of the purpose served by the forum 4 [3] A law is overbroad if it sweeps within its proscriptions, a are viewpoint neutral. Huff, 111 Wn.2d at 926 (citing i,yP constitutionally protected free speech activities. Seattle o.r Seattle v. Eze, 111 Wn.2d 22, 32, 759 P.2d 366, 78 A.L.R.4th .r ., Webster, ]15 Wn.2d 635, 641, 802 P2d 1333, 7 A.L.R.5th (1988)). } 1100 (1990), cert. denied, 500 U.S. 908, 114 L. Ed. 2d 85, 111} 115 . 1 (19c forums are (1) those places which "by long tradition S. Ct. 1690 (1991). An ordinance which regulates behavior and not pure speech, will not be overturned unless the ove ,.or by government fiat have been devoted to assembly and debate",Perry Educ.Assn u. Perry Local Educators'Ass n, 460 # , breadth is both real and substantial in relation to the or, U.S. 37, 45, 74 L. Ed. 2d 794, 103 S. Ct. 948 (1983), or (2) ''' nance's plainly legitimate sweep. Tacoma v. Luvene, '11: channels of communication used by the public at large for T Wn.2d 826, 839-40, 827 P.2d 1374 (1992). I assembly and speech, used by certain speakers, or the discus- ',Won of certain topics. Cornelius( v. NAACP Legal Defense & li [4] As discussed above, the Everett standards of condo F `Educ. Fund, Inc., 473 U.S. 788], at 802 [87 L. Ed. 2d 567, 105 regulate behavior, not speech. The legitimate sweep of[,h: S. Ct. 3439 (1985)]. . , , 'In O'Day the entertainers were charged with violating the standards 'i Hu f j�, 1.11 Wn.2d at 927.Under this definition, an adult enter- 4, conduct during dances where they sat on a customer's lap, simulated sex, :'`. .tainment establishment is not a traditional public forum, so rubbed against the customers' legs. O'Day, 109 Wn.2d at 800. The trial co' -if• eh restrictions may be valid if the distinctions are'} rea- found that those "performances"were pure conduct, unprotected by free spe: .: ,nable and viewpoint neutral. •,i guaranties, and the Supreme Court agreed. O'Day, 109 Wn.2d at 803. ' . Sept 1993 • ' EVERETT v HEIM• • 399- •98 - EVERETT v HEIM Sept. 199, "�''°' u 71 Wn.App. 392, 859.P.2d 55 't 71 Wn.App. 392, 859 P.2d 55 ' g'• The challenged ordinance prescribes sitting on a patron s3 ' ;, III "' a�'' yHeim argues the ordinance unconstitutionally distin- jr ;_t, lap' or separating a patron's legs for any purpose, not just 4• , T.i grtushes entertainers who perform in places of adult entertain- I , { for the purpose of sexual arousal. EMC 5.120.070(C). Such Hment from other entertainers.Entertainers in adult clubs are 1 . '0- d' a activities may be protected under the First Amendment if ;' ,4, ' subject to criminal sanctions for violating the standards of con- y {� they are within the context of a dance. Dancing, even nude` ' ' ' 1 P I. 4 r} duct,while those in other performance places are not. There- '' 1 and seminude dancing, is protected expression under the. �' �' � ,` , #: • �,�More,argues Heim,entertainers in adult clubs are denied equal � " First Amendment and the Washington Constitution. Seed y i `;, '� protection of the law. '`` d • 1 �tq' e.g., Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65, 6& 3. • ,',;[7] Equalprotection analysis requires the application of @: L. Ed. 2d 671, 101 S. Ct. 2176 (1981); Seattle v. Buchanan . , Y q PP ' r supra; O'Da v. KingC supra. ; , G, strict scrutiny to any governmental classification that cre- Qr: "ur•. P y y P '-',';',..;•: w 14 Here the purpose of the ordinance is to ates.an inherently suspect class or affects a fundamental yf 7(t prohibit pubh" 14 V t ,right:.0'Day, 109 Wn.2d at 812 (citing Petersen v. State, 100 "". ,r r Al „ sexual contact. Lap sitting and separation of a patron's legs • • {' •: n:2d 421, 444, 671 P.2d 230 (1983)). Other classifications . :, • ' 'r, , while arguably innocent of any sexual connotation in some I- - • Q . need.only withstand minimal rational basis scrutiny. O Day circumstances, are hi hl likelyto carry ,1,„ g y that connotation • ; ' 109'Wn.2d at 813. Our holding that the Everett ordinance , ' '-1' an adult entertainment establishment. thosA=_� i" � 4'°':�I�t! Restricting ., _;,does;•not infringe on protected speech means that only a ,,nA1 • , activities, even if they are protected expression, is thus ;i„ i;, .,. rational basis review is necessary. , i, reasonable in light of the forum and the purpose of;the.. .,�� ;, - '!b withstand rational basis scrutiny the classification Y'' _ '� i. ordinance. Furthermore, the restrictions are viewpoint net"' N� t:; •c }, P *must,�(1) apply:alike to all members in the designated class, i ,, i ,1 tral, as they apply to all such activities within an ad �' F 2) be:based on some reasonable grounds for distinguishing , •i !; entertainment establishment. Thus, even if the prohibited:f:' u tween those within and those without the class, and (3) activities fall within the realm of protected expression, th "" G • have •a rational relationship to the purpose of the legisla- , 4.tii, li� restrictions are valid and constitutional. - tion O'Da•1t lk n7, y, 109 Wn2d at 814 (quoting Convention Ctr. Coa lii }j ! Heim further argues that the prohibitions against sitt',: .. litiont v..•Seattle, 107 Wn2d 370, 378, 730 P.2d 636 (1986)). c i, on a patron's lapor separating a patron's legs are va •,e`•'- • `i ;: ' !:, ' + i P P g P g �.R [8] Both parties agree that the ordinance meets the first { f i thus rendering the entire section void. She claims that e f " 4 , , part'ofthe test,as it applies to all entertainers and employees .PE i I prohibitions have no standards to guide police, prosecutors'': '. ' m paces of adult entertainment.As to the second, the poten- , i - a!i or juries. . ,,fir, , • t ' t rt, tlal`for public sexual contact or prostitution is•much greater in [5, 6] An ordinance is unconstitutional when it forbi.: , ' Iifl�;i� z .dace of adult entertainment than in otherplaces, such as IJ �! conduct in terms so vague that persons of common mtell ,`s`'` >11`, F .-, ifee;or,taverns, where the proscribed acts are allowed. That 'N 'E gence must necessarilyguess at its meaningand differ as:i, ' �° � potential presents a reasonable basis to distinguish employ- its application. Spokane v. Douglass, 115 Wn2d 171 ,17J` " `e''i PP P g ,z,�k- eegof t`adult entertainment clubs from employees of other � + ''1PI i 795�P.2d 693 (1990). Here, the terms sitting on a patron 8 stablishments:As to the third part,the City asserts that the 'r lap and separating a patron s legs are clear and not s i -' purpose of the ordinance is to discourage public sexual contact i'•. �"1! ceptible to differing interpretations. Enforcement of the,e; `d„`prostitution. Limitingphysical contact between em- `{ "3 ! Al } . prohibitions requires no discretion on the part of law enfor'-w t - #1oyees and patrons of adult entertainment facilities is ration- k ' ment officials. Therefore, the ordinance is not void for va u ` all f related to that1,t 1 fig ,•, � - y�,, purpose.Therefore,the ordinance does not �t, '�;-Iy ness. '"y: rt, �2,g„ r • - r, I Ili:1'1 • ` . ELLIS "OeE� _ [a 1993 STATE v ELLIS • 401 • i d.1; r,, 71�C� - V .S.9 PIA../3 .M Y F } I 71 Wn.App'400, 859 P.2d 632 • III ti.' i `•s 3 • -r t . : fir_ i ;t „, . ;f deny equal protection of the law to employees and ,,i perior Court: The Superior Court for Cowlitz County, I ,a; p • era in adult clubs. ,, . '- 1,,00375-8, Don L. McCulloch, J., on January :17, , 111 P' " i . The ordinance is constitutional, and Heim s'couvi�:,�; • ='r' s}entered a judgment on a verdict of guilty t itt' affirmed. - ` ,,"' • ,r .', • ;,,; ,. I. ., of Appeals: Holding that the jury was adequately s.: COL1 AN and GROSSE, JJ., concur. ,a r r.r =d the.court affirms-the judgment. �'' `-F 1,i-:`• �' Review denied at 123 Wn2d 1018 (1994). , '� 'hri AiHayes for appellant(appointed counsel for appeal). II �11I f w :il p.. {�� cs.'•La,�; .,,rtdgewater, Prosecuting Attorney, ,and James J. I,� :i g �� X�eputy, for respondent. ,0 4�� Itii•Wi ,Jerry Bruce Ellis appeals convictions for var- um ei-'3116-ea, „ei 16 ' 41 j°`' . - ' ' _„..,.,,-..A,,,,... ,e volvin the sexual abuse of.a child: We affirm. '• E'F ,Ai': e. t ( rgt ' ` [No. 15695 4-II. Division Two. October 8, 1998i ' i i 99 . the State charged Ellis with two counts of first y 1 1„ ' t„�i' . ' +1•',C ` e ild'inolestation and two counts of first degree child "a'1`a ` Mt rt ' a 1,p` ti.y 1 THE STATE OF WASHINGTON, Respondent, v JEER H'��:° "' 1,I e'alleged victim on each count was C.R.;born May M' ., •t lI�it ELLIS, Appellant. . „, i - - ' ,: ' Ili i :.r T 'I lf?p leaded not guilty and the case proceeded to jury ,! ;)i 9?:j [1] Criminal Law — Review — Issues Not'RaieetrE,-. '++• i .'�, m Pe r -�,, ��tt�al,�<the State called C.R., who testified to being � r4 ,;; Court — Instruction — Constitutional IssueB' 01' ! ,�*1:•...V" I' • Ali •1t .. ,, ,' i)k bused on a number of occasions. On the earliest •,,,I± 1L!r, ;i' instructional error touching on-the right to a jury<tn: f•s = a-.m..=-'f n ! 1 e` ; ,_ - ilia,'rubbed his penis against her buttocks. On .double jeopardy protection are of constitutional yma• , 1sC + L may be raised for the first time on review `•, ' 's'ts'OCeaslori,Ellis put his hand up her shirt. On as many °FR 1 i s ti, .�:4i' ;�,:,...•1 {itfi, 1;I,. [2] Criminal Law—Evidence—Multi le Ille i iAc d_• ..f lions, Ellis put his finger or fingers in her vagina. ,,,,, p g - u",L a times",'Ellis put his penis in her vagina. On ,•.. ' ' ' tion—Instruction—Sufficient A criminal inst ` 1, °I F'# f„,- r`,,i 4i` not violate the right to jury unanimity if,when read as an`F'1, .% ; ion'oshe and Ellis were in Ellis s apartment, on the , ig i +, _ juror would read it,the instruction communicates the tl% i• , ,' eri •de-a-Bed, or on Ellis's bed. The first incident 'IffL 4 {�?'.:, ., before a criminal defendant can be convicted of a charge:f,: �.• '" € , r. cl l.e.f el a was 7 years old, and the last was about 2 years q •.i.i` evidence of multiple illegal acts has been admitted,;each:��;�a y1r ;•.;, �f + :rr s ' �„ agree that the same act occurred. ' tk ( � '• f %te�also;called a doctor with specialized training in t' 3 Criminal Law — Evidence — Multiple Illeg ‘N'T L ! [ ] r` • ' 'iabuse:•He testified that he had examined C.R. ,;tF :, ta. I Instruction — Identification of Criminal Act ]!._.' „; stela } .?; 8h8°.Could have been the victim of penile and digi- % Is- '' '_. �j"Is` Jeopardy.Instructions are sufficient to protect a crimitl:l _ r Ti ' 4 ant from double jeopardy if an ordinary juror would h,, ,I , atom. ��a i ). .. them to mean that when more than one count charges?%: • y Jr 11.# with the Longview Police Department testi- ;•I' 1-i, r I • type of crime,each count requires proof of a different s`, l 1 at.'ati"interview with Ellis. He stated that Ellis j�i r'A, Ale,: more than one count charge similar crimes, each co IE;;•, • :� I , ,, 'di, ,'!•!, • ?, ; bbmg his erect penis against C.R.s buttocks on j q 3 proof of a different act. r " "i4 "•! L !' gg ' �► ; , - ?four occasions but denied other sexual contact. �' " ,, Nature of Action: Prosecution for two count8 C3 '• • '? ' �,. �u structed the jury without objection from either • ' t. �r degree child molestation and two counts of first,;de + 1 ttitistruction 9,the court said that to convict on count j'I :r i ' ;„ti :4 ,..i} died'`to find, beyond a reasonable doubt, that ! �� i tf, ii rape. .f,. t Jr IIi "?'Z �' Y'eyd i,I}� .x tr i {'?� �i(' I.Ii2 • 366 OCTOBER TERM, 1967. ` UNITED STATES v. O'BRIEN. 367 May 20, 1968. 391 U.S. 1 Syllabus. I 1 BROOKLYN UNION GAS CO. ET AL. V. STANDARD •'' UNITED STATES v. O'BRIEN. • • OIL CO.'OF TEXAS ET AL. • CERTIORARI TOITHE UNITED STATES COURT OF APPEALS FOR ' THE FIRST CIRCUIT. Y.ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED No, 232. Argued January 24, 1968.—Decided May 27, 1968.* STATES COURT OF APPEALS FOR THE TENTH CIRCUIT. " !i '• i O'Brien burned his Selective Service registration'certificate before a No. 503. _ Decided May 20, 1968. ;, sizable crowd in order to influence others to adopt his antiwar '.' beliefs. He wits',indicted, tried,• and convicted for violating 50 Certiorari granted; 376 F. 2d 578, reversed. ''3"` • U. S. C. App. §462 (b), a part of the Universal Military Training "`;-:3 , and Service Act, subdivision (3) of which applies to any person "Edwin F.;Russell and Barbara M.Suchow for Brooklyn ,, ; ' "who forges, alters, knowingly knowin l mutilates, or .:.,,,,:- gn9y .destroys, 9y Union Gas Co., Bertram D. Moll and Morton L. Simons in any manner changes any such certificate . . . ," the words • for Long Island Lighting Co., and Kent H. Brown for "i italicized herein having been added by amendment in 1965. The District Court'.rejected O'Brien's argument that the amendment Public Service Commission of the State of New York, was unconstitutional because it was enacted to abridge free speech petitioners.., ;''.' ' • ,.f;., and served no legitimate legislative purpose. The Court of Appeals Martin N. Erck and Frank S. Troidl for respondent held the 1965 Amendment unconstitutional under the First Amend- Humble Oil & Refining Co.; Thomas G. Crouch, Rob- . .` ': ment as singling out for special treatment persons engaged in pro- :';:*1 ' tests, on the ground that conduct under the 1965 Amendment was ert W. Henderson, and Donald K. Young for respondent ;,,:-a :. • s already punishable since a Selective Service System regulation re- Hunt; Sherman S. Poland for respondent Coates; Rob- 7. quired registrants to keeptheir registration certificates in their ert V. Smith for respondent Patchin-Wilmoth Industries, g g p ���'��� "personal possession at all times," 32 CFR §1617.1, and wilful . Inc.; J. Evans Attwell and W. H. Drushel, Jr., for re- violation of regulations promulgated under the Act was made spondent Clark Fuel Producing Co.; William K. Tell, Jr., - criminal by 501 U. S. C. App. §462 (b)(6). The court, however, William R. Slye, and James D. Annett for respondent .. upheld O'Brien's conviction under §462 (b)(6), which in its view "'`,' :;- made violation of the non possession regulation a lesser included Texaco Inc.; Phillip D. Endom, Robert E. May, and :'�?;; y f., offense of the crime defined by the 1965 Amendment. Held: Francis H. Caskin for respondent Sun Oil Co.; Homer E. ':�`,-, ` :,,-t; ^'�,. 1. The 1965 Amendment; to 50 U. S. C. App. §462 (b)(3) is McEwen,Jr., for respondent Sunray DX Oil Co.; Richard '., ; ' =,-, constitutional as applied in this case. _Pp. 375, 376-382. . F. Remmers for respondent Sohio.Petroleum Co.; and '•''� .',, P , • (a) The 1965 Amendment plainly does not abridge free speech Kiel Boone for respondent Cox. `'={ • on its face. P. 375. ;.V:'* 1 V.. (b) When!"speech" and "nonspeech" elements are combined -;,•xip PER CURIAM. in the same course of conduct, a sufficiently important govern- ;=;��'r. . The petition for a writ of certiorari is granted and the mental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. P. 376. judgment is reversed. Federal Power Commission v. °; O g - -4 .,, -A governmental regulation is sufficiently justified if it is Sunray DX:Oil Co.,ante,p.9. '-':'i,'41: ' within the constitutional power of the Government and furthers MR.,JUSTICE MARSHALL took no part in the considers- - *Together with No. 233, O'Brien v. United States, also on cer- . } t»' tion or decision of this case. _•:F t,-0 tiorari to the same court., ,¢Zi, 368 OCTOBER TERM, 1967. UNITED STATES v.•O'BRIEN. t.,'69 ,- Syllabus. 391 U.S. '' 'l 367'• I 1 'Opinion of the Court. • an important or substantial governmental interest unrelated to _ -`` Solicitor General Griswold argued.the cause for the the suppression of free expression, and if the incidental restriction United States. ' With him on the brief were Assistant on alleged First Amendment freedom is no greater than is essential - Attorney General Vinson, Francis X. Beytagh,_Jr., Bea- to that interest. The 1965 Amendment meets all these require- ,: trice Rosenberg, and Jerome M. Feit. menu. P. 377. - ` Marvin M. Kar atkin argued the cause for respondent (d) The,1965 Amendment came within Congress'-"broad and 1� g P sweeping" power to raise and:•support armies and make all laws =: in No. 232 and petitioner in No. 233. With him on the . • necessary to that end. P. 377. .;,-.14,, ' brief_ were Howard S. Whiteside, Melvin.L. Wulf, and (e) The registration certificate serves,purposes in addition Rhoda H. Karpatkin. ' ' to initial notification, e. g., it proves that the described individual -'.` `: • has registered for the draft; facilitates communication between ' MR. CHIEF JUSTICE WARREN delivered the opinion of registrants and local boards; and provides a reminder that the the Court. .registrant must notify 'his local board of changes in address or . • status. The regulatory, scheme involving the certificates includes On the morning of March 31, 1966, David Paul O'Brien clearly valid prohibitions against'alteration, forgery, or similar ;,<: ; and three companions burned their Selective Service reg- deceptive misuse. Pp. 378-380. J. . istratioh certificates on the steps of the South Boston • (f) The pre-existence of the nonpossession regulation does ;i Courthouse. A sizable crowd, including several agents of not negate Congress' clear interest in providing alternative statu- 1 tory avenues of prosecution to assure its interest in preventing the Federal Bureau of Investigation,witnessed the event. destruction of the Selective Service certificates. P. 380. Immediately after the burning, members of the crowd . • (g) The governmental interests protected by the 1965 Amend- •''i began attacking O'Brien and his companions. An FBI went and the nonpossession regulation, though overlapping, are "?• agent ushered i O'Brien to safety inside the courthouse. not identical. Pp. 380-381. _ >-` i , After he was advised of his right to counsel and to silence, (h) The 1965 Amendment is a narrow and precisely drawn •-;:.f, }. ' O'Brien stated to FBI agents that he had burned his 'provision which specifically protects the Government's substantial - ``' r registration certificate because of his beliefs, knowing interest in an efficient and easily administered system for raising i, �;;� . that he was violating federal law. He produced the armies. Pp. 381-382. `''. ;; charred remains of the certificate, which, with his con- (i) O'Brien was convicted only for the wilful ,frustration of =- j ":; • 's ;, sent, were photographed. that governmental interest. The noncommunicative impact of his '0 t;_ '' '-4 , For'this O'Brien was conduct for'which he was convicted makes his case readily dis- �•:>; ,.•, act, indicted, tried, convicted, tinguishable from Stromberg v. California, 283 U. S. 359 (1931). <"t, ; ';'_• and sentenced in the United States District Court for the P. 382. r` 4 District of Massachusetts.' He did not contest the fact 2.The 1965 Amendment is constitutional as enacted. Pp.382-385. :`:.•4 s.. (a) Congress' purpose in enacting the law affords no basis _•°-`1 1 At the time of the burning, the agents knew only that O'Brien for declaring an otherwise constitutional statute invalid. McCray _'aY ;•�, and his three companions had burned small white cards. They v. United States, 195 U. S. 27 (1904). Pp. 383-384. % later discovered that the card O'Brien burned was his registration (b) Grosjean v. American Press Co., 297 U. S. 233 (1936) .'', 'i. certificate, and the undisputed assumption is that the same is true ' and Gomillion v. Lightfoot, 364 U. S. 339 (1960), distinguished. ::; ,; of his companions. Pp. 384-385. t'�' 2 He was sentenced under the Youth Corrections Act, 18 U. S. C. 376 F. 2d 538, vacated; judgment and sentence of District Court ;_ ;. §5010 (b), to the custody of the Attorney General for a maximum ,TIreinstated. <t.'; ¢`, . period of six years for supervision and treatment. 37(, OCTOBER TERM, 1967. - UNITED STATES v."O BRIEN. 371 Opinion of the Court. 391 U.S. 367: :: I Opinion of the Court: . . - that he had burned the certificate. He stated in argu- Amendment was a reasonable exercise of the power of ment to the jury that Ile burned the certificate publicly " ' Congress to raise armies. ' , • . to influence Others to adopt his antiwar beliefs, as he put On appeal, the Court of Appeals for the First Circuit . , it, "so that other people would reevaluate their positions held the -1965 Amendment unconstitutional as a law ' with Selective Service, with the armed forces, and re- abridging freedorri of speech 4 'At the time the Amend- evaluate their place in the culture of today, to hopefully ment was.enacted, a'regulation of the•Selective Service • consider my position." . : •' . - System' required registrants' to keep their registration ' The indictment upon which he was tried charged that certificates in `their "personal possession at all times." he "willfully and knowingly did mutilate, destroy,. and 32 CFR § 1617.1 (1962).6 Wilful violations of regula- change by burning [his] Registration Certificate tions,promulgated pursuant to the Universal Military (Selective Service System Form No. 2); in violation of Training and Service Act were made criminal by statute. • Title 50• , App., United States Code, Section 462 (b)." Section 462 (b) is part of the.Universal Military Train- 50 U. S.,C. rApp: § 462 (b)(6). The Court of Appeals, ing and Service Act of 1948. Section 462 (b)(3), one therefore, .was of the opinion that conduct punishable • of six numbered subdivisions of § 462 (b), was amended under .the 1965 Amendment was already .punishable by Congress in 1965, 79 Stat. 586 (adding the words i:iunder _the nonpossession regulation, and consequently;� that the Amendment served no valid purpose; further, italicized'"below), so that at the time O'Brien burned his 1 certificate.an offense was commited by any person, ;. 't. ' that in light of the prior regulation, •the Amendment .., must have been "directed at public as distinguished from "who forges, alters, knowingly destroys, knowingly „ ' : -,' private destruction. On this basis, the court concluded . mutilates, or in any manner changes any such cer- 4• that the 1965 Amendment ran afbul of the First Amend- tificate . . ." (Italics supplied.) ' ,• ment, by singling. out .persons engaged ;in protests for In the District Court, O'Brien argued that the 1965 `;` special treatment. The court ruled, however, that Amendment prohibiting the knowing destruction or muti- O'Brien's conviction should be affirmed under the statu- lation of certificates was unconstitutional because it was ''" rovision 50 U. S. C. App. § 462 b 6 which in '' tory p ( )( ), enacted to abridge free speech, and because it served no :;=,:; its view made violation of the nonpossession regulation • legitimate `legislative .purpose.' The District Court re- _'``"r. a crime, because it regarded such violation to be a lesser jected these arguments, holding`that the statute on its ~1i? a`: included ' offense of the crime defined by the 1965 face did not abridge First Amendment rights, that the {_ , ,, Amendment.1e. court was not competent to inquire into the motives of €; ,` ' Congress in enacting the 1965 Amendment, and that the `'-°i ' .4 O'Brien v.: United States, 376 F. 2d 538 (C. A. 1st Cir. 1967). `;{ `'':'': 6 The portion of 32 CFR relevant to the instant case was revised 3 The issue of the constitutionality of the 1965 Amendment was as of January i 1, 1967. Citations in this opinion are to the 1962 raised by counsel representing O'Brien in a pretrial motion to dis- . < :,'. ', edition which was in effect when O'Brien committed the crime, and miss the indictment. At trial and upon sentencing, O'Brien chose ,::, when Congress enacted the 1965 Amendment. ° r!_., s to represent himself. He was represented by counsel on his appeal ,- The Court of Appeals nevertheless remanded the case to the to the Court of Appeals. ---, ''� -. District Court'to vacate the sentence and resentence O'Brien. In 6I`:: *y', ���� � 299-002 0-69-27 ^:-i'':''i.: j, • 4• -t'; 1 b 372 OCTOBER TERM, 1967. :;' : ', UNITED STATES v. O'BRIEN. , ,373 Opinion of the Court. 391 U.S. '•.; ' ` 367.. :. Opinion of the Court. The Government petitioned for certiorari in No. 232, ;:, registration certificate (SSS Form No. 2).11 Subse- • arguing that the Court of Appeals erred in holding the =1 quently, and based on a questionnaire completed by the statute unconstitutional, and that its decision conflicted ;;;t registrant,12i he is assigned a classification denoting his with decisions by the Courts of Appeals for the Second' '') eligibility for induction,13 and "[a]s soon as practicable" and Eighth Circuits 8 upholding the 1965 Amendment . r, thereafter he is .issued a Notice of Classification (SSS against identical constitutional challenges. O'Brien cross- ,,. . Form No. 1�10).14 This initial classification is not neces- petitioned for certiorari in No. 233, arguing 'that the 4 - . sarily permanent,16 and if in-the interim before induction Court of Appeals erred in sustaining his conviction on ,.�a•, the registrant's status changes in some relevant way, he the basis of a crime of which he was neither charged nor 11 may be reclassified.l8 After such a reclassification, the tried. We granted the Government's petition to resolve s .`. , local board 1"as soon as practicable" issues to the regis- the conflict in the circuits, and we also granted O'Brien's >` • trant•a new Notice of Classification.' cross-petition. We hold that the 1965 Amendment is ,, . Both the;registration and classification certificates are constitutional both as enacted and as applied. We there- `w small white cards, approximately 2 by 3 inches. The , fore vacate the judgment of the Court of Appeals and :' registration; certificate specifies the name of the regis- reinstate the judgment and sentence of the District Court :'.' trant, the date of registration, and the number and without reaching the issue raised by O'Brien in No. 233. :4;-` address of the local board with which he is registered. ,': i, Also' inscribed upon it are the date and place of the • I. `';:::; • registrant's birth, his.residence at registration, his phys- •`•When a male reaches the age of 18, he is required by ti:4 ical description, his signature, and his Selective Service the Universal Military Training and Service Act to reg- `;, ;' number. The Selective Service number itself indicates ister with a local draft board He is assigned a Selective ,f ' " his State of registration, his local board, his year of birth, Service number;' and within five days he is issued a and his chronological position in the local board's classi- fication record."S the court's view, the district judge might have considered the viola- 4'•:•. The classification certificate shows the registrant's tion of the 1965 Amendment as an aggravating circumstance in ':' ' name, Selective Service number, signature, and eligibility imposing sentence. The Court of Appeals subsequently denied ;:-.i: ; classification. It specifies whether he was so classified O'Brien's petition for a rehearing, in which he argued that he had . a byhis local board, an appeal board, or the President. It not been charged, tried, or convicted. for,nonpossession, and Nhat t ' • I ' nonpossession was not a lesser included offense of mutilation or „' I destruction. O'Brien v. United States, 376 F. 2d 538, 542 (C. A. 1132 CFR §4613.43a (1962). 1st Cir. 1967). -'- 12 32 CFR §§1621.9, 1623.1 (1962). T:United States v. Miller, 367 F. 2d 72 (C..A. 2d Cir. 1966), cert. -'s y 1832.CFR,§§1623.1, 1623.2.(1962). '-`'fili • 14 32 CFR §;1623.4 (1962). denied, 386 U. (S. 911 (1967). .re" 1 f`''' 15 32.CFR 1625.1 1962 . e Smith v. United States, 368 F. 2d 529 (C. A. 8th Cir. 1966). § ( ) °See 62 Stat. 605, as amended, 65 Stat.76,50 U. S. C.App. §453; - b 16 (1962). -. ,,i; 32 CFR §1613.1 (1962). 'f r ' 32 CFR §§1625.1, 1625.2, 1625.3, 1625.4, and 1625.11 1132 CFR §1625.12 (1962). • 10 32 CFR §1621.2 (1962). • 18 32 CFR §1621.2 (1962). ; ..',,,, >,: yl• 374 > OCTOBER TERM, 1967. UNITED STATES'v. 'O'BRIEN. 375 Opinion of the Court. 391 U.S. i 367` ; ' Opinion of the Court.. contains the address of his local board and the date the (1962) (Classification Certificates).20 And § 12 (b)(6) certificate was mailed. {' of the Act, 62 Stat. 622, made knowing violation of any Both the registration and classification certificates bear ;'1 . provision of the Act or rules and regulations promulgated notices that the registrant must notify his local board - • pursuant'thereto a felony. in writing of every change in address, physical condition, . By"the 1965 Amendment, Congress added to § 12(b)(3) and occupational, marital, family, dependency, and mili- • of the 19481 Act the provision here at issue, subjecting to : tary status, and of any other fact which might change -' ' - ' criminal liability not only one who "forges, alters, or A s : his classification.' Both also contain a notice that the •4,: in any manner changes" but also one who "knowingly • registrant's Selective Service number should appear on • destroys, [or] 'knowingly mutilates" a certificate. We all communications to his local board. " :_;I note at the outset that the 1965 Amendment plainly does Congress demonstrated its concern that certificates • , not abridge free speech on its face, and we do not under- issued by the Selective Service System might be abused `'': stand O'Brien to argue otherwise. Amended § 12 (b)(3) well before the 1965 Amendment here challenged. The •;-;:F.` on its face deals with conduct having no connection with 1948 Act, 62 Stat. 604, itself prohibited many different , it'' speech. It; prohibits the knowing destruction of cer- abuses involving "any registration certificate, . . . or - ,f-;',•. - tificates issued by the Selective Service System, and ' any other certificate issued pursuant to or prescribed 14:a._• there is nothing necessarily expressive about such con- by the provisions of this title, or rules or regulations .,,.. '`.' " duct. The I Amendment does not' distinguish between ,w,' promulgated hereunder . . . ." 62 Stat. 622. Under ," ,-. public and private destruction, and it does not punish §§ 12 (b)(1)—(5) of the 1948 Act, it was unlawful (1) to .,,,-. only destruction engaged in for the purpose of expressing ' transfer a certificate to aid a erson in makin false '! °`: p g views. Compare Stromberg v. California, 283 U. S. 359 identification (2) to possess a certificate not duly issued :,•. (1931).21 A law prohibiting destruction of Selective with the intent of using it for false identification; (3) to :., :- Service certificates no more abridges free speech on its forge', alter, "or in,any manner" change a certificate or '?, ': • ; - face than a motor vehicle law prohibiting the destruction any notation validly inscribed thereon; (4) to photo- `' �; ''-::'_ of drivers' licenses, or a tax law prohibiting the destruc- graph or make an imitation of a certificate for the ••?:' <<: tion of books and records. • purpose of a se identification; and (5) to possess a '' r• � _ i ` counterfeited or altered certificate., . 62 Stat. 622. In ,'..4;`4:1 : - prepared by his local board which has not been altered and on addition, as previously mentioned, regulations of 'the which no notation duly and validly inscribed thereon has been Selective Service System required registrants to keep A''r' changed in any manner after its preparation by the local board. c ;;;'fly,'.c The failure of any person to have his Registration Certificate (SSS both their registration and classification certificates in ='f , Form No. 2) in his personal possession shall be prima facie evidence their personal possession at all times. 32 CFR § 1617.1 :�r"ar1• `' „ -,Y4, t: of his failure to register. (1962) (Registration Certificates); 19 32 CFR § 1623.5 20 32 CFR §,1623.5 (1962), provides, in relevant part: 'yi``'!: ' "Every person who has been classified by a local board must have 19 32 CFR §1617.1 (1962), provides, in relevant part: , '; in his personal possession at all times, in addition to his Registration "Every person required,to present himself for and submit to :-:°. ':ry'.J Certificate (SSS Form No. 2), a valid Notice of Classification (SSS registration must, after he,is registered, have in his personal pos- ; 1..-, :'.r ... Form No. 110) issued to him showing his current classification." session at all times his Registration Certificate (SSS Form No. 2) =. :' 21 See text, infra, at 382. 4n l 1 L • 376 OCTOBER TERM, 1967. UNITED STATES v. O'BRI1'JN. 377 i Opinion of the Court. 391 U.S. 367 1 Opinion of the Court. ; :'t," O'Brien nonetheless argues that the 1965 Amendment 24 25 26 nating, paramount; cogent; strong.27 Whatever is unconstitutional in its application to him, and is un- :! ` imprecision inheres in these terms we think it clear that Pp '7 P , constitutional as enacted because what he calls the "pur- `M :t a government regulation is sufficiently.justified if it is ,'i, pose" of Congress was "to suppress freedom of speech." ,;,; within the constitutional power of the Government; if it ,iiWe consider these arguments separately. • -; l furthers an important or substantial governmental in- II Kr `., .; . terest; if the;governmental interest is unrelated to the suppression of free expression; and if the incidental O'Brien first argues that the 1965 Amendment is4.4 restriction on alleged First Amendment freedoms is no unconstitutional as applied to him because his act of ' r , greater than is essential to the furtherance of that in- burning his registration certificate was protected "sym- ,;; s. r terest. . We- find that the 1965 Amendment to § 12 bolic speech" within the First Amendment. His argu- ` '' (b)(3) of the Universal Military Training and Service ment is that the freedom of expression which the First e$ ''` 1 ?;`' " Act meets all of these requirements, and consequently Amendment guarantees includes all modes of "coin- . that O'Brien 'can be constitutionally convicted for vio- munication of ideas by conduct," and that his conduct ` ',,._ is within this definition because he did it in "demonstra- `«}'=` lating it. tion against the war and against the draft." ' ,r .` The constitutional power of Congress to raise and Sup- A ;s.: port armies and to make all laws necessaryand proper (We cannot accept the view that an apparently limit- p p less varietyof conduct can be labeled "speech" when- =;:} .,.; to that end is broad and sweeping. Lichter v. United p ..;� •ever the engagingin the conduct intends thereb ` ''`°" States 334 U. S. 755-758 (1948) Selective Draft person Y ;. 742, ; _�,i z Law Cases,245 U. S. 366 (1918) p to express an idea. However, even on the assumption ; see also Ex arte Quinn,i �' `l.'• 317 U. S. 1 25-26 (1942). The power of Congress to that the alleged communicative element in O'Brien's "' '>:,‘: conduct is sufficient to bring into play the First Amend- = .,: ,- classify and conscript manpower for military service is inent, it does not necessarily follow that the destruction 'a"' "beyond question." Lichter v. United States, supra, at ``' ``4 4 756; Selective Drat Law Cases, supra. Pursuant to this of a registration certificate is constitutionally protected �:=_' 1:�-;; " � f activity.5This Court has held that when "speech" and ;A+ . , ', power, Congress may establish a system of registration "nonspeech" elements are combined in the same course • :na for individuals liable for training and service, and may ' ,'-- ' a;': require such individuals within reason to of conduct, a sufficiently important governmental interest ,;. .. q cooperate in '. �` �_= ' the re istration s stem. The issuance of certificates indi- in regulating the nonspeech element can justify incidental 'q:; g Y ''`s ,fw."Z. eating the registration and eligibility classification of limitations on First Amendment freedoms.) To •charac- ,_: :, ;: " terize the quality of the governmental interest which ;'' u: individuals'is a legitimate and substantial administrative:: g must appear, the Court has employed a variety of de- s aid in the functioning of this system. And legislation scriptive terms: compelling; 22 substantial; 23 subordi- "_.: . I °:,, q;:,;,.. 24 Bates v:Little Rock, 361 U. S. 516, 524 (1960). 22 NAACP v. Button, 371 U. S. 415,438 (1963); see also Sherbert 25 Thomas v. Collins, 323 U. S. 516, 530 (1945); see also Sherbert v. Verner, 374 U. S. 398, 403 .(1963). : . 11,—i, v. Verner, 374 U. S. 398, 406 (1963). 23 NAACP v. Button, 371 U. S. 415, 444 (1963); NAACP v. 28 Bates v.Little Rock, 361 U. S. 516, 524 (1960). Alabama ex rel. Patterson, 357 U. S. 449, 464 (1958). ,I.. `''"• 27 Sherbert v. ,Verner, 374 U. S. 398, 408 (1963). 378 OCTOBER TERM, 1967. 'A`=`'� UNITED STATES v. O'BRIEN. 379 Opinion of the Court. 391 U.S. ;,• 367 Opinion of the Court. g' to insure the continuing availability of issued certificates , . IA. trant has done what the law requires, it is in the interest ' serves a legitimate and substantial purpose in the`sys- ;,: • ' of the just and efficient administration of the system that g P PY :. ; tem's administration. :: .;'.;' they be continually:available, in the event, for example, O'Brien's argument to the contrary is necessarily prem- ;,. of a mix-up in the registrant's file.. Additionally, in a ised upon his unrealistic characterization of Selective ' ' time: of"national crisis, reasonable availability to each i.'I. •Service certificates. He essentially adopts the position ;;s registrant of the two ,small 1 cards assures a rapid and '` 'uncomplicated means for. determininghis fitness for that such certificates are so many pieces of paper designed P to notify registrants of their registration or classification, ' ,,- immediate induction no matter how distant in our ,;;' ,1:', mobile society he may be from his local board. to be retained or tossed in the wastebasket according to ;; .,4; ''"" ;''' 2.i The information supplied .', . on the certificates facili- the convenience or taste of the registrant. Once the r-•7`: registrants and local boards` tates communication between registrant has received notification, according to this -. ,' . • view, there is no reason for him to retain the certificates. %';2 -, simplifying the system and benefiting all concerned. To O'Brien notes that most of the information on a registra- ` a begin with, each certificate bears the address of the reg- tion certificate serves no notification purpose at all; the istrant's local board, an item unlikely to be committed registrant hardly needs to be told his address and phys- :;. .-:;.,` to memory. Further, each card bears the registrant's ;;;.;;'. registrant characteristics. We agree that the registration cer- ,.,:� '; : Selective Service number, and a g istrant who has his '} number readilyavailable so that he can communicate it tificate contains much information of which the registrant ; needs no notification. This`circumstance, however, does e to his local board when he supplies or requests informa- , not lead to the conclusion that the certificate serves no tion can make simpler the board's task in locating his purpose, but that, like the classification certificate, it `!r '' file. Finally, ',a registrant's inquiry, particularly through :,,-: a local board other than his own, concerninghis eligibility serves purposes in addition to initial notification. Many g Y : ''''r status is fre uentl answerable simply on the basis of of these purposes would be defeated by the certificates' : l F7:. frequently p Y destruction or mutilation. Among these are: :" e3 <f', his classification certificate; whereas, if the certificate 1. The registration certificate serves as proof that the :;T,;;;•,. were not reasonably available and the registrant were individual described thereon has registered for the draft. 's.' _ .:., uncertain of his classification, the task of answering his '•'j -'� questions would be considerablycomplicated. The classification certificate shows the eligibility classifi- •,•� ` �� • • p ' `? 3. Both certificates carrycontinual reminders that the cation of a named but undescribed individual. Volun- `' tardy displaying the two certificates is an easy and pain- ; , registrant must notify his local board of any change of •s'° 1,;_. address, and other specified changes in his status. The less way for a young man to dispel a question as to •.a,. •. whether he might be delinquent in his Selective Service ;;:L4 smooth functioning of the system requires that local obligations. Correspondingly, the availability of the cer- # boards be continually aware of the status and where t's' ,'"' abouts of registrants, and the destruction of certificates tificates for such display relieves the Selective Service ;rF��.�i'�� `"` the system of a potentiallyuseful notice device. System of the administrative burden it would otherwise - =-. ��- deprivesY have in verifying the registration and classification of all > :'F;,: 4. The regulatory scheme involving Selective Service suspected delinquents. Further, since both certificates 3 a certificates includes clearly valid prohibitions against the are in the nature of "receipts" attestingthat the re is- F{`' ` :;:;` alteration, forgery, or similar deceptive misuse of certifi- P g 'yi. f0, at- , .r• ;^ wt" y• Fr i . 380 . OCTOBER TERM, 1967. • UNITED STATES v. O'BRIEN. 381 Opinion of the Court. 391 U.S. " 367 • . Opinion of the Court. • ! cater. The • destruction or mutilation of certificates ' ,. sonal possession at all times, as required by the regula- obviously increases the difficulty of detecting and tracing u" tions, is of no particular concern under the 1965 Amend- abuses such as these. Further, a mutilated certificate r ment, as long as they do not mutilate or destroy the might itself be used for deceptive purposes. certificates so as to render them unavailable. Although • The many functions performed by Selective Service • as we note below we are not concerned here with the • certificates establish beyond doubt that Congress has a . nonpossession regulations, it is not inappropriate to ob- legitimate and substantial interest in preventing their ",' i; " serve that the essential elements of nonpossession are wanton and unrestrained destruction and assuring their ",:' , not identical with those of mutilation' or destruction. •_ continuing availability by punishing people who know- ,:`' ?a• Finally, the 1965"Amendment, like § 12 (b) which it ingly and wilfully destroy or mutilate them`. And we ''.:..$ lf,. ;:_'i,,, amended, is concerned with abuses involving any issued are unpersuaded that the pre-existence of the nonposses- = 5 ; Selective Service certificates, not only with the regis- sion regulations in any way negates this interest. ;` =f;:, trant's own certificates. The knowing destruction or -,•N :;.• In the absence of a question as to multiple punish- :‘ ; . • ment it has never been suggested : l mutilation of someone else s certificates would therefore that there is anything i•, violate the statute but not the nonpossession regulations. improper in Congress' providing alternative statutory _•: : avenues of prosecution to assure the effective protection . � ,,,, We think it apparent that the continuing availability ; ,;.,- to each registrant of his Selective Service certificates sub- of one and the same interest. Compare the•majority - and dissenting opinions in Gore v. United States, 357 :4 ;> stantially furthers the smooth and proper functioning of U. S. 386 (1958).28 Here, the pre-existing avenue of ',,,, the system that Congress has established to raise armies. '`' • We think it, also apparent that the Nation has a vital prosecution was not even statutory. Regulations may :-1<.,s interest in having a system for raising armies that func- . be modified or revoked from time to time by administra- ;., : ''''` `'`` - tions with maximum efficiencyand is capable of tive discretion. Certainly, the Congress may change or .; p easily H =' '' and quickly•res ondin to continua changing. circum- supplement a regulation. _ ;.4 t_ , --._ p g y g g a.. Equally important, a comparison of the regulations 'h f '.;;_.,• stances. For these reasons,. the Government has a sub- with the 1965 Amendment indicates that they protect ''`'`., t_-'''•..- stantial interest in assuring the' continuing availability overlapping but not identical governmental interests, and "4 ': '" of issued Selective Service certificates. . that they reach somewhat different classes of wrong- It is equally clear that•the 1965 Amendment specifi- g .•: tally protects this substantial governmental interest. doers." The gravamen of the offense defined by tle `'. statute is the deliberate renderingof certificates unavail- able - :'s' We perceive;no alternative means that would more pre- _ fti �w. able for the;various purposes which. they may serve. =`°; cisely and narrowly assure the continuing availability of • s, .; , issued Selective Service certificates than a law which Whether registrants keep their certificates in their per- � - .-. .. � • :•�. - ' prohibits their wilful mutilation or destruction. Corn- 3=S 28 Cf. Milanovich v. United States, 365 U. S. 551 (1961) Heflin .''..� ,z,.- . pare Sherbert v. Verner, 374 U. S. 398, 407-408 (1963), v. United States, 358 U. S. 415 (1959); Prince v. United States, :: 'N;.:; . and the cases cited therein. The 1965 Amendment pro- 352 U. S. 322 (1957). ' ,}••,,-„ 29 .-. 'conduct and does nothing more. In other Cf. Milanovich v. United States, 365 U. S. 551 (1961); Heflin -`�• 1 hibits such�'`�`� • words, both;thegovernmental interest and the operation v. United States, 358 U. S. 415 (1959); Prince v. United States, _ `� :__:::'.'.' p 352 U. S. 322 (1957). '•'`'' `;h.. �'���,,��; of the 1965 Amendment are limited to the noncommuni- '.,,,, el✓ 382 OCTOBER TERM, 1967: :;j;; `'• UNITED STATES v. .O'BRIEN. 383 4 `` ! Opinion of• the Court. Opinion of the Court. 391 U.S. ,Rx`' 367 P cative aspect of O'Brien's conduct. The governmental ..,, speech." We reject this argument because under set- • interest and the scope of the 1965 Amendment are lim- ;;,x,:6 tled principles the purpose of Congress,-as O'Brien uses ited to preventing harm to the smooth and efficient ,',.i..' ,^ that term, is not a basis for declaring this legislation V� functioning of the Selective Service System. When ,;; '.>}; unconstitutional. •. °' ``•;'• It is a familiar principle of constitutional law that this O'Brien deliberately rendered unavailable his registra- tion certificate, he wilfully frustrated this governmental "p ;" Court will not strike down an otherwise constitutional interest. For this noncommunicative impact of his con- : ) :` statute on the basis of an alleged illicit legislative motive. .. duct, and for nothing else, he was convicted. •; '•"�'_ As the Court long ago stated: The case at bar is therefore unlike one where the -:�y;,• T.;:-- ' "The decisions of this court from the beginning . alleged governmental interest in regulating conduct arises '1 a l ;.-:.?=' a i:r;�,, _. lend no support whatever to the assumption that the in some measure because the communication allegedly n '`"' :' g y � a judiciary may restrain the exercise of lawful power integral to the conduct is itself thought to be harmful. '''' ` , ',I.W on the assumption that a wrongful purpose or motive In Stromberg v. California, 283 U. S. 359 (1931), for ;',,, 4:ii'_*: has caused the power to be exerted." McCray v. exam le this Court struck down a statutoryphrase which '"'`'4i:,,t::::. • United States, 195 U. S. 27, 56 (1904).P ,:,g•1i .;,: punished people who expressed their "opposition to . organized �$ �;;,- • This fundamental principle of constitutional adjudication g government" by displaying "any flag, badge, :+ ';Y. • was reaffirmed and the many cases were collected by banner, or device." Since the statute there was aimed "' ':`;'.A'� at suppressing communication it could not be sustained Mr. Justice Brandeis for the Court in Arizona v. Cali- ''`' ` 283 U. S. 423, 455 (1931). • as a regulation of noncommunicative conduct. See also, ;a:=•1;],-:::' Inquiries into congressional motives or purposes are a NLRB v. Fruit & Vegetable Packers Union, 377 U. S. 58, •' "``M s:,,' •'' , ,- hazardous matter. When the issue is simply the inter- ( ) (concurring opinion). t; :, . .;. pretatiori of legislation, the Court will look to statements ' In conclusion, we find that_because of the Govern- r=`.,1','1:" by legislators'for guidance as to the purpose of the legisla- ment's substantial interest in assuring the continuing ,;: ''"'°' '' ' .= 5s'? `. ture,3° because the benefit to sound decision-making in availability of issued Selective Service certificates, be- . 1;, ,;::, , ' 1 cause amended § 462 (b) is an appropriately narrow 30 The Court'may make the same assumption in a very limited means of protecting this interest and condemns only the and well-defined class of cases where the very nature of the consti- =„: tutional question requires an inquiry into legislative purpose. The independent noncommunicative impact of conduct within r-. . ,•GU y,="' ; principal class of cases is readily apparent—those in which statutes its reach, and because the noncommunicative`impact of �, '.:2i =' have been challenged as bills of attainder. This Court's decisions O'Brien's act of burning his registration certificate frus- • '=' `'": ,. a ikP:f..:__ have defined a bill of attainder as a legislative Act which inflicts . trated the Government's interest, a'sufficientgovern- ,;, 41't . .�,< punishment on named individuals or members of an easily ascertain- mental interest has been shown to justify O'Brien's ••, '' '1-r,; able groupwithout ajudicial trial. In determiningwhether a � q ,1--- -'.. conviction. particular statute is a bill of attainder, the analysis necessarily III. -:•,-`:-,.-•, requires an inquiry into whether the three definitional fl y Y:*. : elements— specificity in identification, punishment, and lack of a judicial trial— O'Brien finally argues that the 1965 Amendment is ;.:F; ' ' are contained in the statute. The inquiry into whether the chal- unconstitutional as enacted because what he calls the lenged statute contains the necessary element of punishment has "purpose" of Congress was "to suppress freedom of i "` i!^:i . , on occasion led the Court to examine the legislative motive in 384 OCTOBER TERM, 1967. ti UNITED STATES :v. O BRIEN. 385 P Opinion of the Court. 391 U.S. nr += 367 •< Opinion of the Court. ' . this circumstance is thought sufficient to risk the possi- just such a, tax. . Similarly, in Gomillion, the Court sus- . • bility of misreading Congress' purpose. It is entirely a tanned a complaint which, if true, established that the different matter when we are asked to void a statute that ' '`;' "inevitable! effect," 364 U. S., at'341, of the redrawing is, under well-settled criteria, constitutional on its face, '.' ' of municipal boundaries was to deprive the petitioners on the basis of what fewer than a handful of Congressmen ;q_; of their right to vote for no reason other than that they said about it. What motivates one legislator to make a ';'' <' were Negro. In these cases, the purpose of the legisla- speech about a statute is not necessarily what motivates '`•` ',' - • tion was irrelevant, because the inevitable effect—the scores of others to enact it, and the stakes are sufficiently "- - "necessary I scope, and operation," McCray v. United high for us_to eschew guesswork. We decline to void es- `'. . States, 195; U.S. 27, 59 (1904)—abridged constitutional sentially on the ground that it is unwise legislation which '-i': rights.. The statute attacked in the instant case has no Congress had the undoubted power to enact and which such inevitable unconstitutional effect, since the destruc- . could be reenacted in its exact form if the same or another ,":' tion of Selective Service certificates is in no respect in- legislator made a "wiser" speech about it. ,;z evitably or necessarily expressive. Accordingly, the O'Brien's position, and to some extent that of the court ;:4', rs statute itself is constitutional. below, .rest upon a misunderstanding of Grosjean v. _'": We think it not amiss, in passing, to comment upon American Press Co., 297 U. S. 233 (1936), and Gonzil- i r`' O'Brien's legislative-purpose argument. There was little lion v. Lightfoot, 364 U. S. 339 (1960). These cases g Only ,`"�'� floor debate on this legislation in either House. stand, not for the proposition that legislative motive is a -- t::'..: ' Senator Thurmond commented on its substantive fea- proper basis for declaring a statute unconstitutional, but • .;:4 tures in the Senate. 111 Cong.Rec. 19746, 20433. After that the inevitable effect of a statute on its face may '`".. his brief statement, and without any additional substan- • . render it unconstitutional. Thus, in Grosjean the Court, ;_:;f;a;;:..: tive comments, the bill, H. R. 10306, passed the Senate. •having concluded that the right of publications to be '$L'y 111 Cori Rec. 20434. In the House debate only two free from certain kinds of taxes was a freedom of the •,:.4 ''`` ;`','' ' Congressmen addressed themselves to the Amendment— press ; ;';' protected by the First Amendment, struck down a .104 Congressmen Rivers and Bray. 111 Cong. Rec. 19871, statute which on its face did nothing other than impose • 19872. The bill was passed after their statements with , ';: 1 out any further debate by a vote of 393 to 1. It is prin- enacting the statute. See, e. g., United States v. Lovett, 328 U. S. -''`*; :`., • cipally on; the basis of 'the statements bythese three • 303 (1946). Two other decisions not involving a bill of attainder o Y « anal sis contain an inquiry into legislative ', `�n., Congressmen that O'Brien makes his congressional- pur- Y q y g purpose or motive of ;;t�H:..=•„/- the type that O'Brien suggests we engage in in this case. Kennedy ?:::;' pose" argument. We note that if we were to examine v. Mendoza-Martinez, 372 U. S. 144, 169-184 (1963); Trop v. ; ' .• ; legislative purpose in the instant case, we would be Dulles, 356 U. S. 86, 95-97 (1958). The inquiry into legislative '',by°;`:�'_.` obliged to I consider not only these statements but also• ,,.a the.more authoritative reports of the Senate and House purpose or motive in Kennedy and Trop, however, was for the r.q��:..--; same limited purpose as in the bill of attainder decisions—i. e. to �` ' �: `li`-`;��,� Armed Services Committees. . The portions of those determine whether the statutes under review were punitive in nature. P;.:::_ reports explaining the purpose of the Amendment are We face no such inquiry in this case. The 1965 Amendment to ' ,§462 (b) was clearly penal in nature, designed to impose criminal ',Y, reproduced in the Appendix in their entirety. While punishment for designated acts. : :` :; both reports make clear a concern with the "defiant" 4'. ,5%x y-%n. 386 OCTOBER TERM, 1967. ~-'i .'' UNITED STATES v. O'BRIEN. 387 'Appendix to opinion of the Court. 391 U.S. ; ;• 367 1 Appendix to'opinion of the Court. 1 destruction of so-called "draft cards" and with "open" ; � a draft registration certificate is subject to a fine, of not encouragement to others to destroy their cards, both more than I$10,000 or imprisonment of not more than reports also indicate that this concern stemmed from an ,'' 'r•-- 5 years, or.both. ' There is no explicit prohibition in d` 1 ; apprehension that unrestrained destruction of cards �z.,, pp ,,�..,: this section against the knowing destruction or mutila- would disrupt the smooth functioning of the Selective rry,,r,' tion of such cards. Service System. ''R "''` "The committee has taken notice of the defiant de- IV. struction and mutilation of draft cards by dissident Since the1965 Amendment to §.12 (b)(3) of the Uni- :`` persons who disapprove of national policy. If allowed ' versal Military Training and Service Act is constitutional ,-) to continue unchecked this contumacious conduct repre- as enacted and as applied, the Court of Appeals should :;. Y. Bents a potential threat to the exercise of the power to have affirmed the judgment of conviction entered by the '' raise and support armies. District Court. Accordingly, we vacate the judgment of ,.:$9.,': "For a person to be subject to fine or imprisonment • the Court of Appeals, and reinstate the judgment and =`:t " the destruction or mutilation of the draft card must be '' '' ` • `knowin 1 'i done.. Thisqualification is intended to r sentence of the District Court. This disposition makes ";g;.. gY, pro- ,consideration of O'Brien's claim that the tect persons .who lose or mutilate draft cards acciden- Court of Appeals erred in affirming his conviction on the "' �: tally." S. Rep. No. 589, 89th Cong., 1st Sess. (1965). basis of the nonpossession regulation 31 ' : And the House Report explained: It is so ordered. _ ,u- "Section ;12 (b)(3) of the Universal Military Training MR. JUSTICE MARSHALL took no part in the considers- and Service Act of 1951, as amended, provides that a tion or decision of these cases. -' person who forges, alters, or in ';r. ,:: gany manner changes his '=�,' draft registration card, or any notation duly and validly `,,, inscribed thereon, will be subject to a fine of $10,000 or APPENDIX TO OPINION OF THE COURT. i„ , imprisonment of not more than 5 years. H. R. 10306 ;- f' `" would amend this provision to make it apply also to PORTIONS OF THE REPORTS OF THE COMMITTEES ON :,ii „:;;• ARMED SERVICES OF THE SENATE AND HOUSE ,: ~:,":, those persons who knowingly destroy or knowingly muti- EXPLAINING THE 1965 AMENDMENT. ','' ':.; ;:"': late a draft registration card. s,.; , ,,, "The House Committee on Armed Services is fully The "Explanation of the Bill" in the Senate Report '-.�� . ,p :.:- aware of, and shares in, the deep concern expressed is as follows: `p ``.`` throughout!the Nation over the increasing incidences in "Section."12 (b)(3) of the Universal Military Training :'.'-etai,!'-- which individuals and large groups of individuals openly and Service Act of 1951, as amended, provides, among ;;;.r, defy and encourage others to defy the authority of their other things, that a person who forges, alters, or changes •..,:o i ik,; , : Government by destroying or mutilating their draft ' ,4. cards. 31 The other issues briefed by O'Brien were not raised in the peti- ': "' "While While the present provisions of the Criminal Code tion for certiorari in No. 232 or in the cross-petition in No. 233. ,:�`-�� ��� Accordingly, those issues are not before the Court. with respect to the destruction of Government property ;',k.°* 3§e>_:,!-:; . 0-28 tip;^ a�_-. , ` 7 388 OCTOBER TERM, 1967. ,, . UNITED STATES 'v `O'BRIEN. 389 •n$, HARLAN, J. concurring. 391 U.S. '` 3671 •DOUGLAS,•J. dissenting. g '' g may appear broad enough to cover all acts having to do • Ni`; from reaching a significant audience with whom he could with the mistreatment of draft cards in the possession -it: not otherwise lawfully communicate. This is not such a of individuals, the committee feels that in the present ° '-` case,' since!' O'Brien manifestly could have conveyed his critical situation of the country, the acts of destroying :: ;., message in many ways other than by burning his draft or mutilating these cards are offenses which pose such a ,4'� • <«�: card. grave threat to the security of the Nation that no ques- .0 ;r`;: - . :I.MR. :JUSTICE DoUGLas, dissenting.,. tion whatsoever should be left as to the intention of the ;,7:. ; . The Court states that the constitutional power of Con ress that such wanton and irres onsible acts should t !: bepunished. �,,;,,,,. Congress to 'raise and support armies is "broad and s'° ,.:�t ',,: ;,::. ' sweeping" and that Congress' power "to .classify and "To this end, H. R. 10306 makes specific that know- :,�;t:� s ;, . ingly mutilating or knowingly destroying a draft card ' ``=" conscri t 'manpower for militaryservice is. 'beyond :.,• ., :. P I P Y , rx,5.` question.' " -This ,is undoubtedlytrue in:times when, constitutes a violation of the Universal Military Training q I and Service Act and ispunishable and that . ,' '' by declaration of Congress, the Nation is in a state of thereunder; i' i35r;` '4 ;`;, ,r, war. Thel underlying and basicproblem in this case, a person who does so destroy or mutilate a draft card ;_; si N)::,u . I Y g iA,< however,,_•,:; : , Is whether conscription• is permissible in the will be subject to a fine of not more'than $10,000 or {;.�- -1= absence of a declaration of war.' That question has not imprisonment of not more than 5 years.» H. R. Rep. '4,. rl ;= been briefed nor was itpresented in oral argument; but No. 747, 89th Cong., 1st Sess. (1965). : 1 ' g,.,j, ;, it is,'I submit, a question upon which the litigants arid MR. JUSTICE HARLAN, concurring: °' ` .:: the country are entitled to a ruling. I have. discussed The crux of the Court's_ opinion, which I join, is of F s' . -,- in Holmes v._United States, post,..p. 936, the nature of course its general statement, ante, at 377, that: ?t ; `= :r , the legal issue and it will be seen from my dissenting "a government regulation is sufficiently justified ifril'•,; r.';,,:_::: opinion in, that case that this Court has never ruled on it is within the constitutional power of the Govern- ,,, ,,x;,�; 1 Neither of the decisions cited by the majority for the propo- ment if it furthers an important or substantialgov- ;"` ! ..-',1,,,,', F' sition that Congress'power to conscript men into the armed services P .,i ernmental interest; if the governmental interest is :.., dr... "' ,t-,•,,•,, is "beyond;question concerns peacetime conscription. As I have unrelated to the suppression of:free expression; and '; • t:* shown in my dissenting opinion in Holmes v. United States, post, `^"'y:)'., p. 936, the Selective Draft Law Cases, 245 U. S. 366, decided in if the incidental restriction on alleged First Amend- " `'� ` " `., �,;;,, 1918, upheld the constitutionality of a conscription act passed by ment freedoms is no greater than is essential to the ; r;";,* _;'.' Congress more than a month after war had been declared on the furtherance of that interest." ' - •: ``..,i -:'� .. . German Empire and which was then being enforced in time of :- war. Lichter v. United States, 334 U. S. 742, concerned the con- I wish to make explicit myunderstandingthat this ;- . P x;( �y_;t•i-r„ stitutionality'; of the Renegotiation Act, another wartime measure, passage does not foreclose consideration of First Amend- ;; a)..L enacted by Congress over the period of 1942-1945 (id., at 745, .9 ;i* ment claims in those rare instances when an "incidental" '-?;. f::,-,,•,;,:, n. 1) and applied in that case to excessive war profits made in restriction upon expression, imposed byaregulation r=`` v, " 1942-1943 (id., at 753). War had been declared, of course, in 1941, +�1==�- (55 Stat. 795). The Court referred to Congress'which furthers an "important or substantial" govern- -- �;:��=�. power to raise - =3t "ei';F° " ' armies in discussing the "background" (334 U. S., at 753) of the mental interest and satisfies the Court's other criteria, in : ' i „ "speaker" ;- ' Renegotiation Act, which it upheld as a valid exercise of the War practice has the effect of entirelypreventinga s eaker -.si. 1 c,, P '`' Power. <> ri: 1 ` . 390 OCTOBER TERM 1967. ` " •,;' .N;,;;,; UNITED STATES v: O'BRIEN.. 391 DOUGLAS, J., dissenting. 391 U.S. "'k'x''''' 367 DOUGLAS, J.`dissenting. the question. It is time that we made a ruling. This :l .. according to both:;parties, was whether the record con- case should be put down';for reargument and heard with _; X tained sufficient evidence of fraud to uphold an order of Holmes v. United States and with Hart v. United States, �1kx:,.. the Postmaster General. R.eargument was ordered on post, p. 956, in which the Court today denies certiorari. k :. the constitutional;issue of abridgment of First Amend The rule that this Court will not consider issues not. : ,,: ;: ment freedoms. .;;'333 U. S., at 181-182; Journal, October raised by the parties is not inflexible and yields in "excep- ;,j,ff Term, 1947 p..70. Finally, in Musser.v. Utah, 333 U. S. ' tional cases" (Duignan v. United States, 274 U. S. 195, :`:1,,,:*:=a - ' 95, 96, reargument was ordered on the question of uncon- iAy_' .200) to the need correctly to decide the case before stitutional vagueness of a criminal statute, an issue not - the court. E. Erie R. Co. v. Tompkins, 304 U. S. ..;-;:v A: _ g., p 64; _- ,,_ raised.by the parties but suggested at oral argument by „t;°,? Terminiello v. Chicago, 337 U. S. 1. >�. Justice Jackson. Journal, October Term, 1947, p. 87. ' In such a case it is not unusual to ask for reargument "A = These recedents demonstrate the appropriateness of 'a-;fe-Q1::. P (Sherman v. United States, 356 U. S. 369,379,n.2,Frank- '.r ,:;;:• restoring the instant case to the calendar for reargument furter, J., concurring) even on a constitutional question ,�,,� ,, on the question of the constitutionality of a peacetime not raised by the-parties. In Abel v. United States, _,� .' draft and having it heard with Holmes v. United States 362 U. S. 217, the petitioner had conceded that an admin- :,:1-::'-f and Hart v; United States. ;•,_ istrative deportation arrest warrant would be valid for ;, ,. ._: • its limited purpose even though not supported by ., -.t'': . • ' a sworn affidavit statingprobable cause; but the Court :y'':,'..•: ' i ordered reargument on the question whether the warrant ""� ` • had been validly issued in petitioner's case. 362 U. S., ,: y ,7.' " at 219, n., par. 1; 359 U. S. 940. In Lustig v. United ly;;:.; States, 338 U. S. 74, the petitioner argued that an exclu- -;, .;,,,!-„.1:,,!:,,r, sionary rule should apply to the fruit of an unreasonable n� ri„L" ,. search by state officials solely because they acted in con- y` 0,,1;�'.' cert with federal officers (see Weeks v. United States, 232 = U. S. 383; Byars v. United States, 273 U. S. 28). The i,6-.. ,::.:, . Court ordered reargument on the question raised in a then • .. ^,t, :. pending case, Wolf v. Colorado,338 U. S.25: applicability ;, '4•�r ' . of.the Fourth Amendment to the States. • U. S. Sup. Ct. - `'`•_`* °` r Journal, October Term, 1947, p. 298. In Donaldson v. •;+• _ Read Magazine, 333 U. S. 178, the only issue presented, ,,_,:Y*; t. ,, , . 2 Today the Court also denies stays in Shill'man v.Selective Service - 4. ;•a„ in Board No. 5, and Zigmond v. Selective Service Board No. 16, post, _., _: i p. 930, where punitive delinquency regulations are invoked against `' -. v,; registrants, decisions that present a related question. :i:r.. r ",'i: �i' . :40 OCTOBER TERM, 1985 •ti�,t • RENT.ON v. PLAYTIME THEATRES INC. 41 " 475 U. S. ' Syllabus r STEVENS,J., dissenting; a>'r• i' ;under the First Amendment, and yet—although the analogy :•Vj zi i4 • ; is,far from perfect—it performs the same function as the - t CITY OF RENTON ET AL. v: PLAYTIME THEATRES, {{ Commission's rule by making accessible the relevant audi- oil'k. -INC.; ET AL. I ence, whether it be shareholders investing in the corporation :is „4, : ' or consumers served by the utility, to individuals or groups i APPEAL FROM THE UNITED STATES COURT OF APPEALS FOR 4 p ?.. :.-f'. ! THE NINTH CIRCUIT with demonstrable interests in reaching that audience for w,,, _ ti certain limited and approved purposes.` « No. 84-1360. Argued November 12, 1985—Decided February 25, 1986ig i,If: the California Public Utilities Commission had taken .!4", Respondents purchased two theaters in Renton, Washington,with the in- } A^ tention of exhibiting adult films and, at about the same time,filed•suit in over company buildings and vehicles for propaganda pur- ,,.._$. ,,,,.1 .,- .- Federal District Court, seeking injunctive relief and a declaratory judg- poses, or even engaged in viewpoint discrimination among •:-.,:,;; ,c .: ment that the First and Fourteenth Amendments were violated by a city speakers desirous of sending messages via the billing enve- w t',:': 4::,: ordinance that prohibits adult motion picture theaters from locating lope, I would be concerned. But nothing in this case ',i.zf 1,'; :x:-s�s;c;� within 1,000 feet of any residential zone,single-or multiple-family dwell- presents problems even remotelyresemblingor portending :�.4 :: r5 p g i•,fi `, ing, church, park,' or school. The District Court ultimately entered the ones just mentioned. Although the plurality's holding !,-'�"'r,.:: g p y ,a• ,,: • summary judgment in the city's favor,holding that the ordinance did not may wisely forestall serious constitutional problems that are r violate the First Amendment. The Court of Appeals reversed,holding likely to arise in the future, I am not convinced that the order '-'' that the ordinance constituted a substantial restriction on First Amend- under review today has crossed the threshold of unconstitu- _` ' ment interests,and remanded the case for reconsideration as to whether '''' the city had substantial governmental interests to support the ordinance. tionality: Accordingly, I respectfully dissent. '` - 4 McY.: Held: The ordinance is a valid governmental response to the serious prob- ., • k lems created by adult theaters and satisfies the dictates of the First s..-. Amendment. Cf.,Young v. American Mini Theatres, Inc., 427 U. S. '. l=i-' 50. Pp. 46-55. '= (a) Since the ordinance does not ban adult theaters altogether, it is 3t,--4„' properly analyzed as a form of time, place, and manner regulation. -i r„,,n,y:, "Content-neutral"time,place, and manner regulations are acceptable so .1i. ..v long as they are designed to serve a substantial governmental interest' r.i `r . ._, - !, .,, and do not unreasonably limit alternative avenues of cornnaunication. ..'1., Pp. 46-47: 1 _•Ad f;; • (b)�The District Court found that the Renton City Council's"predomi- :`''MFw1 '�„. nate concerns were with the secondary effects of adult theaters on the • z r=s' ''. surrounding community, not with the content of adult films themselves. ,' ,,,. ' • This finding is more than adequate to establish that the city's pursuit of _ .•; •.`. _ its zoning interests was unrelated to the suppression of free expres- : i;• ii! , sion, and thus the ordinance is a "content-neutral" speech regulation. :;_'1'.: F,: :.'-'. Pp. 47-50. '`, ' _,F,,:t_. (c) The Renton ordinance is designed to serve a substantial govern- mental interest while allowing for reasonable alternative avenues of corn- ;,''; I'4' i` munication. A city's interest in attempting to preserve the quality of r'`1' •'.• urban life, as here, must be accorded high respect. Although the ordi- ,::-' nance was enacted without the benefit of studies specifically relating to ri. ,k' YfY`,'; • . ,4- w I-I ;;Fs FI�;i'# RENTON v. PLAYTIME THEATRES, INC. 43 42 OCTOBER TERM, 1985 '^-l' v f:T:. l 41 Opinion of the Court Syllabus 475 U. S. ,"`,_t; 1 4''!C . Renton'sparticularproblems, Renton was entitled to relyon the ex eri- , •_ '::'-4 ,' JUSTICE REHNQUIST delivered the opinion of the Court. ,i P „��`, I:� ences of, and studiesproduced b. ,the nearbycityof Seattle and other Y'` This case involves a constitutional challenge to a zoning Y , ,-. • ; g g cities. - Nor was there any constitutional defect in the method chosen by ° =� ,r ordinance, enacted by appellant city of Renton, Washington, k it Renton to further its substantial interests. Cities may regulate adult ''"•%. s+. } 'r: ,, that prohibits adult motion picture theaters from locating theaters by dispersing them, or by effectively concentrating them, as in .,. , Renton. Moreover, the ordinance is not"underinclusive" for failing to r;:;'f:'# ' ;'• within.1,000 feet of any residential zone, single- or multiple- ,, "-:�'=, .4 family dwelling, church, park, or school. Appellees, Play- regulate other kinds of adult businesses, since there was no evidence - ., ."-y that, at the time the ordinance was enacted, any other adult business ;';".~n•1'f ;„__ time Theatres, Inc., and Sea-First Properties, Inc., filed an i t was located in, or was contemplating moving into, Renton. Pp. 50-53• .vim , , +,,, action in the United States District Court for the Western (d) As required by the First Amendment, the ordinance allows for a, K . District of Washington seeking a declaratory judgment that 11 reasonable alternative avenues of communication. Although respond- ; .,-.;" F'.r, �, ^ : the .Renton ordinance violated the First and Fourteenth ents argue that in general there are no"commercially viable"adult the- > .� , �; v,:. 11 5,. .r Amendments and apermanent injunction against its enforce- A; ater sites within the limited area of land left open for such theaters by ,. ,n: _.:..: g „ , {' the ordinance,the fact that respondents must fend for themselves in the - S t �.;" ment. The District Court ruled in favor of Renton andde- al; Y s; real estate market, on an equal footing with other prospective purchas- s. ,--0,-o, nied the permanent injunction, but the Court of Appeals for pl, ers and lessees,does not give rise to a violation of the First Amendment, �� the Ninth Circuit reversed and remanded for reconsidera- i' 1 which does not compel the Government to ensure that adult theaters, orII ". ' r �': tion• 748 F. 2d 527 (1984). We noted probable jurisdiction, ; yy„1; e i any other kinds of speech-related businesses, will be able to obtain sites ';;Y:: f j ,,. at bargain prices. Pp. 53-54. t„Fg,- :•„, y 471 U. S. 1013 (1985), and-now reverse the judgment of the 1 : 748 F. 2d 527, reversed. `', t `;,, Ninth Circuit.' P pit, s F REHNQUIST, J., delivered the opinion of the Court, in which BURGER, ' Ruth Solomon, Joyce Holmes Benjamin, Beate Bloch, and Lawrence R. 11 C. J., and WHITE POWELL, STEVENS, and O'CONNOR JJ., joined. . ` ' > ,. Velvet• BLACKMUN, J., concurred in the result. BRENNAN,J., filed a dissenting �• z` Briefs of amici curiae urging affirmance were filed for the American opinion, in which MARSHALL, J.,joined, post, p. 55. b �, ,- ' Civil Liberties Union et al• by David Utevsky, Jack D. Novik, and Burt E. Barrett Prettyman, Jr., argued the. cause for ap- y;�. %:•: r«, _: Neuborne; and for the American Booksellers Association, Inc., et al. by pellants. With him on the briefs were David W. Burgett, .a '; t Michael A. Bamberyer. _ "` `�'Eric M. Rubin and Walter E. Diercks filed.a brief for the Outdoor Ad- Lawrence J. Warren, Daniel Kellogg, Mark E. Barber, and ' '`�� ` ''�',4='` ;F� �•,�;,° ;y s-r:.{� -•vertising Association of America, Inc., et al• as amici curiae. Zanetta L. Fontes. G_ j F -,.,t , .:: 'This appeal was taken under 28 U. S. C. §1254(2), which provides this Jack R. Burns argued the cause for appellees. With him ',( ':t,z :' ;';..4z;` .Court with appellate,jurisdiction at the behest of a party relying on a state on the briefs was Robert E. Smith.* i Y • ,, ,. :statute or local ordinance held unconstitutional by a court of appeals. As : .'-4,- - - .Y k..-•. -. .we have previously'noted, there is some question whether jurisdiction "= under§1254(2)is available to review a nonfinal judgment. See South Car- *Briefs of amici curiae urging reversal were filed for Jackson County, -w• f" _° ': .�-,, 1 A-T olina Electric & Gas Co. v Flemming, 351 U. S. 901 (1956); Slaker v. Missouri,by Russell D. Jacobson;for the Freedom Council Foundation by :z; %�. x.q,,; ?„ I 1 • '- ;c• " r : ,o Connor, 278 U. S.!188(1929). But see Chicago v. Atchison, T. &S. F. j Wendell R. Bird and Robert K. Skolrood; for the National Institute of ``;,; .;.k _.; F�. ..,t _: R. Co., 357 U. S. 77, 82-83 (1958). Municipal Law Officers by George Agnost, Roy D. Bates, Benjamin L. k"_•-` „ ,,..haw ,;,, Brown, J. Lamar Shelley, John W. Witt, Roger F. Cutler, Robert J. ?:, :€ . :4 {a „ :The,present appeal seeks review of a judgment remanding the case to Alfton, James K. Baker, Barbara Mather, James D. Montgomery, Clif- _; • `,,;, ,, :, 'tithe"District Court. We need not resolve whether this appeal is proper ford D. Pierce, Jr., William H. Taube, William I. Thornton, Jr., and ,'£ ti ' ,:'under'§1254(2), however, because in any event we have certiorari juris- Charles S. Rhyne; and for the National League of Cities et al. by Benna ..�diction under' 28 U. S. C. §2103. As we have previously done in equiva- Fx s` •^ e .. f.- a t. .'a is . I 1 t'7 ,., 44 OCTOBER TERM, 1985 -:`: .'. • ' RENTON v. PLAYTIME THEATRES, INC. 45 {; Opinion of the Court 475 U. S. 41 Opinion of the Court y'4 .r' ',' `' f' In early1982, respondents acquired two existingtheaters I In May 1980, the Mayor of Renton, a city of approximately � .{:, P q • 32,000 people located just south of Seattle, suggested to the `- y •;;;; in downtown Renton, with the intention of using them to ex- Renton-City Council that it consider the advisability of enact- � hibit feature-length adult films. The theaters were located 1 ing zoning legislation dealing with adult entertainment uses. .• jt within the area proscribed by Ordinance No. 3526. At about the same time respondents filed the previouslymentioned No such uses existed in the city at that time. Upon the ; ,': p "" lawsuit challenging the ordinance on First and Fourteenth if Mayor's suggestion, the City Council referred the matter to �'�"� �'�°' ''''``' Anieridment grounds, and seeking declaratory and injunctive the city's Planning and Development Committee. The Corn- , • • ` relief. While the federal action was pending, the City Coun- mittee held public hearings, reviewed. the experiences of -: : 4: Seattle and other cities, and received a report from the City ' ' `'' cil amended the ordinance in several respects, adding a state- :,-, l'':r ment of reasons for its enactment and reducing the minimum Attorney s Office advising as to developments in other cities. •` _ " :4wu',f��`:+' distance from any, school to 1,000 feet. The City Council, meanwhile, adopted Resolution No. 2368, ' .' • In November 1982, the Federal Magistrate to whom re- which imposed a moratorium on the licensing of "any busi- '. C4. spondents' action had been referred recommended the entry ness . . . which . . . has as its primary purpose the selling, ` ;ill':: of a preliminary injunction against enforcement of the Renton renting or showing of sexually explicit materials." App. A ` ; ,'.: ordinance and the denial of Renton's motions to dismiss and 43. The resolution contained a clause explaining that such ,µ`r<l` . ti:. for summary judgment. The District Court adopted the ``•'' • ```"�` "``' Magistrate's recommendations and entered the preliminary businesses "would have a severe impact upon surrounding :- •. ,>.; gi businesses and residences." Id., at 42. _"' _� 3 ;" injunction, and respondents began showing adult films at In April 1981, acting on the basis of the Planning and ''• ` :. their two theaters in Renton. Shortly thereafter, the par- Development Committee's recommendation,the City Council 1:-.. ` J.'"�''- ties agreed to submit the case for a final decision on whether enacted Ordinance No. 3526. The ordinance prohibited any •` '•t•, +'> .:' a permanent injunction should issue on the basis of the record "adult motion picture theater"from locating within 1,000 feet •s G ; , ,',... as already developed. of any residential zone, single- or multiple-family dwelling, - 1 rt , : ", The District Court then vacated the preliminary injunc- -a` ` ' 3 ; ton, denied respondents' requested permanent injunction, church, or park, and within one mile of any school. App. to ;:,:, " ,'`,` lt: •., Juris. Statement 79a. The term "adult motion picture the- x: c f.''- `i and entered summary judgment in favor of Renton. The , N:7, , ,ss ;;<,;. court found that the Renton ordinance did not substantially ater"was defined as "[a]n enclosed building used for present- " r-� F : 4,, restrict First Amendment interests, that Renton was not re- ing motion picture films, video cassettes, cable television; or ,';• , -... =g,;: - ,,.714; 1‘, quired to show specific adverse impact on Renton from the any other such visual media, distinguished or characteri[zed] :.::,;, `; k.1, ram. . ,i,s h ,.f „_.< operation of adult theaters but could rely on the experiences by an emphasis on matter depicting, describing or relating to :_':k . : ,," ;�. . 1 �, �� ,of other cities, that the purposes of the ordinance were unre- 'specified sexual activities' or'specified anatomical areas' . . . t * �� P p 5 �M.r �,dated to the suppression of speech, and that the restrictions for observation by patrons therein." Id., at 78a. Lr},4', , `f 3it 'on speech imposed by the ordinance,,were no greater than ;'1 •. 'necessary to further the governmental interests involved. lent situations, see El Paso v. Simmons, 379 U. S. 497, 502-503 (1965); i ..e ,ly;�,), s'.Relying on Young v. American Mini Theatres, Inc., 427 Doran v.Salem Inn,Inc.,422 U. S. 922,927(1975),we dismiss the appeal 41 4 ,.rU." S. 50 (1976), and United States v. O'Brien, 391 U. S. 367 and, treating the papers as a petition for certiorari, grant the writ of cer- V: . ,.µs ' r`(1968) the court held that the Renton ordinance did not vio- "respondents."Henceforth, we shall refer to the parties as "petitioners" and ;t�,�;•, - - �;�.•,,��; � "respondents." _ ; ,late the First Amendment. is - Zi_ `•1.:, RENTON v. PLAYTIME THEATRES, INC. - 47 46 OCTOBER TERM, 1985 <<:Am;,, n.. '•`• 475 U. S. `ir,i, 41 I Opinion of the Court Opinion of the Court 'r• - The Court of Appeals for the Ninth Circuit reversed. The • �• purpose of restraining speech on the basis of its content :M1 _ Court' of Appeals first concluded, contrary to the finding ,1-,, presumptively violate the First Amendment. See Carey v. ,H Brown, 447 U. S. 455, 462-463, and n. 7 (1980); Police Dept. of the District Court, that the Renton ordinance constituted D,��:' : a substantial restriction on First Amendment interests. .:, ,j, of Chicago v. Mosley, 408 U. S. 92,' 95, 98-99 (1972). On Then, using the standards set forth in United States v. -:1.v: the other hand, so-called "content-neutral" time, place, and O'Brien, supra, the Court of Appeals held that Renton had :;t''' . manner regulations are acceptable so long as they are de- improperly relied on the experiences of other cities in lieu signed to serve a substantial governmental interest and do• P, •` not unreasonably limit alternative avenues of communication. of evidence about the effects of adult theaters on Renton, ,l r`;, See Clark v. Community for Creative Non-Violence, 468 that Renton had thus failed to establish adequately the ex- 3=t: f - • istence of a substantial governmental interest in support of • hz.:,' U. S. 288, 293 (1984); City Council of Los Angeles v. Tax- , c �;- payers for Vincent, 466 U. S. 789, 807 (1984); Heffron v. its ordinance, and that in any event Renton's asserted in- s`-: International Society for Krishna Consciousness, Inc. 452 terests had not been shown to be unrelated to the suppres- 'a}= U. S. 640'` ;, 647-648 (1981). sion of expression. The Court of Appeals remanded the case '':'f ;a" At first lance the Renton like the ordinance in to the District Court for reconsideration of Renton's asserted ,;r; '.' glance', ordinance, ., � F�;; _ American Mini Theatres, does not appear to fit neatly into interests. '° In our view, the resolution of this case is largely dictated either the "content-based" or the "content-neutral" category. :! bs To be sure, the, ordinance treats theaters that specialize in by our decision in Young v. American Mini Theatres, Inc., r.'E ,- adult films differently from other kinds of theaters. Never- supra. There, although five Members of the Court did not ;=:_ theless, as the District Court concluded, the Renton ordi- :R�q . N. agree on a single rationale for the decision, we held that the y;: :;: nance is aimed not at the content of the films shown at "adult cityof Detroit's zoningordinance, whichprohibited locating ,, ; :•. theatres," „ r,,-', motion picture but rather at the secondary effects an adult theater within 1,000 feet of any two other"regulated f , of such theaters on the surrounding community. The Dis- uses" or within 500 feet of any residential zone, did not vio- ,;, , ... trict Court found that the City Council's "predominate con- late the First and Fourteenth Amendments. Id., at 72-73 7, til ,` terns"were with the secondary effects of adult theaters, and (plurality opinion of STEVENS, J., joined by BURGER, C. J., • 1, ' ;r":!`T not with the content of adult films themselves. App. to and WHITE and REHNQUIST, JJ.); id., at 84 (PowELL, J., .<N 1(;��4 "; ,�,':;` . Juris. Statement 31a (emphasis added). But the Court of concurring). The Renton ordinance, like the one in Ameri- `<:. t",: ;;. ...; Appeals, relying on its decision in Tovar v. Billmeyer, 721 F. can Mini Theatres, does not ban adult theaters altogether, : a -q =. • . 2d 1260, 1266 (CA9 1983), held,that this was not enough to but merely provides that such theaters may not be located . ; ; 1,;' w t Yp`'-' sustain the ordinance. According to the Court of Appeals, if within 1,000 feet of any residential zone, single- or multiple- .F r),;. "a motivating factor" in enacting the ordinance was to re- famil dwelling, church, park, or school. The ordinance is :'Y 1#a strict respondents' exercise of First Amendment rights the Y g> s - ,t , therefore properly analyzed as a form of time, place, and 3 4&-, - '-. ordinance would be invalid, apparently no matter how small a manner regulation. Id., at 63, and n. 18; id., at 78-79 (Pow- .` 1, . : •-s;w;_ part this motivating factor may have played in the City Coun- ELL, J., concurring). t '-',s`'a� cil's decision. 748 F. 2d, at 537(emphasis in original). This Describing the ordinance as a time, place, and manner ' ,% '• s- ,'=view of the law was rejected in United States v. O'Brien, 391 regulation is, of course, only the first step in our inquiry. r ,'tik• `J _,•: •U. S., at 382-386, the very case that the Court of Appeals This Court has long held that regulations enacted for the ",iv' y,� r w , '; said it was applying: ' Y ). ", RENTON v. PLAYTIME THEATRES, INC. 49 �48 OCTOBER TERM, 1985 yr, � Fa Opinion of the Court 475 U. S. 41 ' ! Opinion of the Court; a. .r.` less favored or more controversial.views. Mosley, supra, r,; ��• •.•It is a familiar principle of constitutional law that '•� �•f, • this Court will not strike down an otherwise constitu- a a'.` at 95-96. I ` , tional statute on the basis of an alleged illicit legislative ` Y';1 It was with this understanding in mind that, in American t motive. . . . ,0 s• . Mini Theatres, a Majority of this Court decided that, at least .. . ., -.< '.. with respect to businesses that purvey, sexually explicit ma- . What motivates one legislator to make a speech 4 terials,2zoning ordinances designed to combat the uncle- ,.about a statute is not necessarily what motivates scores • suable secondary effects of such businesses are to be re- of others to enact it, and the stakes are sufficiently high f: : viewed under the standards applicable to "content-neutral" for us to eschew guesswork." Id:, at 383-384. ,i' :. time, place, and,manner regulations. JUSTICE STEVENS, "predominate" i :k f= writing for the plurality, concluded that the city of Detroit The District Courts finding as to predominate intent, �'` i-;:: ' t%;p was entitled to draw a distinction between 'adult theaters left undisturbed by the Court of Appeals, is more than ade- 1:' ;y;, and other kinds of theaters "without violating the govern- quate to establish that the city s pursuit of its zoning :y,. ;; ment's paramount obligation of neutrality in its regulation interests here was unrelated to the suppression of free ex- ,£-,,;. of protected communication," 427 U. S., at 70, noting that ,,, pression. The ordinance by its terms is designed to prevent -• ►s j� crime, protect the cit 's retail trade, maintain property [i]t is th[e] secondary effect which these zoning ordinances yp p y •t"�f: attempt to avoid, not the dissemination of `offensive' values, and generally "protec[t] and preserv[e] the quality s. '' of [the city's] neighborhoods, commercial districts, and the speech,"id., at 71, n. 34. JUSTICE POWELL, in concurrence, quality of urban life," not to suppress the expression of un- elaborated: , q Y pP p -- •7 : "[The]views. See App. to Juris. Statement 90a. As ° ;;.,.:: dissent misconceives the issue in this case by JUSTICE POWELL observed in American Mini Theatres, "[i]f ••;; ' ,4Y insisting that it involves an impermissible time, place, [the city] had been concerned with restricting the message : ' :},,,,. .' and manner restriction based on the content of expres- purveyed by adult theaters, it would have tried to close them ;,� '4.,, ,; sion. It involves nothing of the kind. We have here I or restrict their number rather than circumscribe their choice k; merely a decision by the city to treat certain movie the- :,-,n q;it as to location." 427 U. S., at 82, n. 4. :' _ _. aters differently because they have markedly different In short, the Renton ordinance is completely consistent �?n1,•a 4,,,, ,.,: effects upon their surroundings. . . . Moreover, even with.our definition of"content-neutral" speech regulations as "" ` ''�r'-_, ;.:: if this were a case involving a special governmental those that "are justified without reference to the content of - x` ;,aka�:' ' ,. 1, : response to the content of one type of movie, it is pos- the regulated speech." Virginia Pharmacy Board v" Vir- ' ' - sible that the result would be supported by a line of cases ginia Citizens Consumer Council, Inc. 425 U. S. 748, 771 " `t " = ' :;Z .,.' ., 4_ ,:.e_:., recognizing that the government can tailor its reaction (1976) (emphasis added); Community for Creative Non- ,,is:;.,'`; '...°;,,,�r _ to different types of speech according to the degree to Violence, supra, at 293; International Society for Krishna pt:. .n ;; which its special and overriding interests are implicated. E Consciousness, supra, at 648. The ordinance does not con- 4,, •r R, travene the fundamental principle that underlies our concern : •n ". • . =`- A « �� , .•a K�1-. E See American Mini Theatres, 427 U. S., at 70(pluralityopinion)( [I]t • about content-based speech regulations: that "government r , f fi 'is manifest that society's interest in protecting this type of expression is of may not grant the use of a forum to people whose views it ''Z ymagnitude*�� =,a;�wholl different, and lesser,ma tude than the interest in untrammeled finds acceptable, but deny use to those wishing to express '.. •', -'; `,,political debate . . ."). 9 ,. h /1' •2^n'1� 't: e4"}•a",.c;'. ``~t bbb I 1.1:1 ., ,: I ,, 50 OCTOBER TERM,.1985 ,`` r, ,: RENTON v. PLAYTIME THEATRES, INC. 51 1 475 U. S. A. '4`-k' 41 1 Opinion of the Court Opinion of the Court , , 1. r;';r See, e. g., Tinker v. Des Moines School Dist., 393 U. S. ; fr'03 was before the Renton City Council when it enacted the ordi- `''= " nance in question here, described Seattle's experience as t 503, 509-511 (1969); Procunier v. Martinez, 416 U. S. , r- _,. 396, 413-414 (1974); Greer v. Spock, 424 U. S. 828, si -;;_e follows: a 842-844 (1976) (PowELL, J., concurring); cf. CSC V. ,; t.f "The amendments to the City's zoning code which are Letter Carriers, 413 U. S. 548 (1973)." Id., at 82, ::t = },:,. t -:- at issue here are the culmination of a long period of n. 6. ` 4 #`.>;. study and discussion of the problems of adult movie the- "` titers in residential areas of the City. . . . [T]he City's The appropriate inquiry in this case, then, is whether the �;� '.•� Department Communit Development made a stud Renton ordinance is designed to serve a substantial govern- p y p y avenues ,$ `r 'a;.-i. of the need for zoning controls of adult theaters . . . . mental interest and allows for reasonable alternative '�� �� ,_' The study analyzed the City's zoning scheme, compre- of communication. See Community for Creative Non- Y .. hensive plan, and land uses around existing adult mo- =� ,,i,„, Violence, 468 U. S., at 293; International Society for ,.,,�,, ." Krishna Consciousness, 452 U. S., at 649, 654. It is clear tion picture!theaters. Id., at 711, 585 P. 2d, I ,3,.,4.:,4 at 1155. 1 that the ordinance meets such a standard. As a majority ofH;.. k a 4 ' "[T]he [trial] court heard extensive testimony regard- this Court recognized in American Mini Theatres, a city's :,.,A,,,. in the historyand purpose of these ordinances. It "interest in attempting to preserve the quality of urban life i , g p p - heard testimony on the adverse effects of the is one that must be accorded high respect." 427 U. S., at , ;ti experty presence of adult motion picture theaters on neighbor- 71 (plurality opinion); see id., at 80 (PowELL, J., con- �� '" � : hood children and communityimprovement efforts. :.; earring) ("Nor is there doubt that the interests furthered ;:,1'•.,`:,:',:' p {�� 'P,,. .,.. The court's detailed findings, which include a finding by this ordinance are both important and substantial"). Ex- :�,;_ 1 r " r:: that the location of adult theaters has a harmful effect on actly the same vital governmental interests are. at stake ;;t rr.'�3 the area and contribute to neighborhood blight, are sup- here. r.. .'• ported bysubstantial evidence in the record.". Id., at The Court of Appeals ruled,..however, that because the ;; , •. ,,:,, Renton ordinance was enacted without the benefit of studies 713, 585 P. 2d, at 1156. i.�.:-. "The record is replete with testimonyregarding the specifically relating to "the particular problems or needs of =,.- p g g o, Renton," the city's justifications for the ordinance were "con- �. t effects of adult movie theater locations on residential clusory and speculative." 748 F. 2d, at 537. We think the t;' ;'o.a :�; , . , . neighborhoods." Id., at 719, 585 P. 2d, at 1159. Court of Appeals imposed on the city an unnecessarily rigid -�>: We hold that.Renton was entitled to rely on the experi- burden of proof. The record in this case reveals that Renton ,, ,r ,. y ,>.ences of Seattle'and other cities, and in particular on the relied heavilyon the experience of, and studies produced by, s1;;:r'', ,:;::;'_"detailed findings" summarized in the Washington Supreme p the city of Seattle. In Seattle, as'in Renton, the adult the- K W� 1 :;:; -; , 'Court's Northend Cinema opinion, in enacting its adult ater zoning ordinance was aimed at preventing the secondary . , ! -, theater zoning ordinance. The First Amendment does not effects caused by the presence of even one such theater in a ..,.., " ' ,,,,,.:.,;',require a city, before enacting such an ordinance, to conduct f' given neighborhood. See Northend Cinema, Inc. v. Seattle, ;.1 .;' >*' ;`new studies or produce evidence independent of that already 90 Wash. 2d 709, 585 P. 2d 1153 (1978). The opinion of the : -1 , .4 . ;;,:;generated by other cities, so long as whatever evidence the ' ;city relies upon is reasonably believed to be relevant to the Supreme Court of Washington in Northend Cinema, which .L±� .��k , .. t, .:, 'tip 'r,ti_r v:, 1 RENTON v. PLAYTIME THEATRES ' 52 OCTOBER TERM, 1985 f �t - I INC. 68 'E Opinion of the Court 475 U. S. ,a ;,;:T.,•- 41 1 Opinion of the Court "' F. ;. by one particular kind of adult business in no way suggests problem that the city addresses. That was the case here. • Nor is our holding affected by the fact that Seattle ultimately ' that the city has "singled out" adult theaters for discrimina- -`� ..,:, for chose a different method of adult:theater zoning than that 44 .,._ y treatment. ! We simply have no basis on this record for chosen by Renton, since Seattle's choice of a different rem- r;,:-, assuming that Renton will not, in the future, amend its ordi- 1 edy to combat the secondary effects of adult theaters does , =4.,: nance to include other kinds of adult businesses that have not call into question either Seattle's identification of those 1; *, .::: been shown to produce the same kinds of secondary effects secondary effects or the relevance of Seattle's experience to ' . It u as adult theaters. See Williamson v. Lee Optical Co., 348 1 I' lip`}.: U. S. 483, 488-489 (1955). 11 Renton. `'' 'r= Finally, turning We also find no constitutional defect in the method chosen ,' ,,t: to the question whether the Renton ordi- b Renton to further its substantial interests. Cities may ) tw;: nance allows for reasonable alternative avenues of communi- Y ��=''. regulate adult theaters by dispersing them, as in Detroit, or ,1,,- •.. cation, we note that the ordinance leaves some 520 acres, or by effectively concentrating them, as in Renton. "It is not +_ :; more than five percent of the entire land area of Renton, I our function to appraise the wisdom of[the city's] decision to '=k+`` open to use as adult theater sites. The District Court found require adult theaters to be separated rather than concen- „•;; , ,, and the Court of Appeals did not dispute the finding, that the trated in the same areas. . . . [T]he city must be allowed 5; yr',;': 520 acres of land'consists of"[a]mple, accessible real estate," a reasonable opportunity to experiment with solutions to ad- , V , including "acreage in all stages of development from raw nuttedly serious problems." American Mini Theatres, 427 ;f; land to developed, industrial, warehouse, office, and shop- U. S., at 71 (plurality opinion). Moreover, the Renton ordi- ;+s1 ping space that is criss-crossed by freeways, highways, and nance is "narrowly tailored" to affect only that category of roads." App. to;Juris. Statement 28a. ' theaters shown to produce the unwanted secondary effects, ,,a, . ' Respondents argue, however, that some of the land in iy thus avoiding the flaw that proved fatal to the regula- j; question is already occupied by existing businesses, that tions in Schad v. Mount .Ephraim, 452 U. S. 61 (1981), and <t,h , practically none" of the undeveloped land is currently for Erznoznik v. City of Jacksonville, 422 U. S. 205 (1975). A1,.`! sale or lease, and:that in general there are no "commercially Respondents contend that the Renton ordinance is "under- `'< p ;. viable adult theater sites within the 520 acres left open .� inclusive,"in that it fails to regulate other kinds of adult busi- ..A 1:i::,., by the Renton ordinance. Brief for Appellees 34-37. The , nesses that are likely to produce secondary effects similar to .=,i k ;';; Court of Appeals accepted these arguments,' concluded that those produced by adult theaters. On this record the con- .:' , f. tention must fail. There is,no evidence that, at the time the __:' .. '2+ ; a The Court of Appeals'rejection of the District Court's findings on this Renton ordinance was enacted, any other adult business was :4,._ ,, i, issue may have stemmed in part from the belief expressed elsewhere in located in, or was contemplating moving into, Renton. In a . the Court of Appeals'opinion,that,under Bose Corp.v Consumers Union _ 1 ,., ,.,L,,,, ., ofUnited States,Inc.,`466 U. S.485(1984),appellate courts have a duty to 1 fact, Resolution No. 2368, enacted in October 1980, states review de novo all mixed findings of law and fact relevant to the application 1: that "the City of Renton does not, at the present time, have g of First Amendment principles+ See 748 F. 2d 527, 535(1984). pWe need any business whose primary purpose is the sale, rental, or <-. not review the correctness of the Court of Appeals'interpretation of Bose ! 'i showing of sexually explicit materials." App. 42. That .:` Corp.,since we determine that,under any standard of review, the District ? i; '' ,."1,' Court's findings should not have been disturbed. Renton chose first to address the potential problems created ,: .;,,, ., 4 ( .}', ,me .K-t :y; '<::, RENTON v. PLAYTIME THEATRES, INC. 55 1 54 OCTOBER TERM, 1985 -., ,. t 475 U. S. ``" ip:i: 41 1 BRENNAN, J., dissenting Opinion of the Court °�>�;�;;�� • the 520 acres was not truly "available" land, and therefore a*; ,` First Amendment." The judgment of the Court of Appeals nance "would result in a substantial ; ',:• is therefore held that the Renton ordi Ti ,,„ = Reversed. restriction" on speech. 748 F. 2d, at 534. t s JUSTICE BLACKMUN concurs in the result.' 1 :,�We disagree with both the reasoning and the conclusion ._,i' ,- of the Court of Appeals: That respondents must fend for g ;.. ,,, I themselves in the real estate market', on an equal footing =N ,,: with other prospective purchasers and lessees, does not give f dissenting:If: JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, . . . R .N.;i-o' Renton's zoning ordinance selectively imposes limitations ti rise to a First Amendment violation. And although we have k' i'`: on the location of a movie theater based exclusively on the 1 cautioned against the enactment of zoning regulations that ,. ..3;' r, ' content of the films shown there. The constitutionality of have "the effect of suppressing, or greatly restricting access g- a'3'' the ordinance is therefore not correctly analyzed under to, lawful speech," American Mini Theatres, 427 U. S., at m"_,•f_ . standards applied to content-neutral time, place, and manner . . ,,.,;.. 71, n. 35 (plurality opinion), we have never suggested that . ..,; restrictions. But even assuming that the ordinance may the First Amendment compels the Government to ensure �: �� �k": : ' fairlybe characterized as content neutral, it is plainly uncon- j �: 4 stitutional under the standards established by the decisions that adult theaters, or any other kinds of speech-related busi- nesses for that matter, will be able to obtain sites at bargain •# c- of this Court. Although the Court's analysis is limited to Concurring) ("The in- �s.:;r prices. See id., at 78 (POWELL, J., g Y Y .;f.. h ,. :`'_-..' : 'Respondents argue, as an"alternative basis"for affirmingthe decision . quirt' for First Amendment purposes is not concerned with cNt, ri •. of the Court of Appeals, that the Renton ordinance violates their rights € economic impact"). In our view, the First Amendment re- ,: ,� • under the Equal Protection Clause of the Fourteenth Amendment. As quires only that Renton refrain from effectively denying ti �:':r should be apparent from our preceding discussion,respondents can fare no r,•, ,, better under the Equal Protection Clause than under the First Amend- respondents a reasonable opportunity to open and operate ,i 4 an adult theater within the city, and the ordinance before us ', • ; ment itself. See Young v. American Mini Theatres, Inc., 427 U. S., at easily meets this requirement. o „,.,„,„. ; 63-73. ; '`. ' Respondents also argue that the Renton ordinance is unconstitutionally In sum, we find that the Renton ordinance represents a _1� w•�,i �,,`.i•, vague. More particularly, respondents challenge the ordinance's applica- �, valid governmental response to the"admittedly serious prob- : 1� r tion to buildings "used" for presenting sexually explicit films, where the , lems" created by adult theaters. See id., at 71 (plurality a. 1Y r term"used"describes"a continuing course of conduct of exhibiting[sexu- all explicit films]in a manner which appeals to a prurient interest." App. opinion). Renton has not used "the power to zone as a pre- :� ,F���� to Juris. Statement'96a. We reject respondents' "vagueness" argument text for suppressing expression,"id., at 84(pOWELL J:` con- ;`''a -�,_-_;,.., for the same reasons that led us to reject a similar challenge in American tarring), but rather has sought to make some areas available z `, ' i Mini Theatres, supra. There, the Detroit ordinance applied to theaters for adult theaters and their patrons, while at the same time _ ...,-.,,c.<.- "used to present material distinguished or characterized by an emphasis on li } , _ ;. [sexually explicit matter]." Id., at 53. We held that"even if there may preserving the quality of life in the community at large by 1) `;� �•'t � be some uncertainty about the effect of the ordinances on other litigants, preventing those theaters from locating in other areas. '�'�.aA}�,,�, . they are unquestionably applicable to these respondents." Id., at 58-59. This, after all, is the essence of zoning. Here, as in Ameri- k,•i ., r We also held that the Detroit ordinance created no "significant deterrent can Mini Theatres, the city has enacted a zoning ordinance ;; , .. '. effect" that might justify invocation of the First Amendment "over- that meets these goals while also satisfying the dictates of the '••' f��F,!.-;: breadth"doctrine. Id., at 59-61. all ... Eti t Y :::' ' I 56 OCTOBER TERM, 1985 ==s" ;T '''` RENTON v. PLAYTIME THEATRES, INC. 57 I is g{`' 475 U. S. c.•. BRENNAN, J., dissenting BRENNAN, J., dissenting ,4,-. 3 ;>d.; 41 , r R .;:. cases- involving "businesses that purvey sexually explicit • ,.,';s : Because the ordinance imposes special restrictions on certain Materials,"ante, at 49, and ri. 2, and thus does not affect our .�; - kinds of speech on the basis of content, I cannot simply ac- ,11 holdings in cases involvingstate regulation of other kinds of '`• `"'' f; cept, as the Court does, Renton's claim that the ordinance : t .: ' '} >: speech, I dissent. ;� F:,;, -:;s; ;<. was not designed to suppress the content of adult movies. 'i I ;,.;•; ;,;;,;; "[VT]hen regulation is based on the content of speech, govern- „ as; • rk} :a "[A]constitutionally permissible time, place, or manner re- a , w ti, mental action must be scrutinized more carefully to ensure , striction may not be based upon either the content or subject 1 1f --:A that communication has not been prohibited 'merely because matter of speech." Consolidated Edison Co. v. Public Serv- 3' `' A'` -� public officials disapprove the speaker's views." Consoli- ' _': > =. :: Co.,dated Edison Co. supra at 536 (quotin Niemotko v. Mary- iii ice Comm'n of N. Y. 447 U. S. 530, 536 (1980). The Court . •;.• �-, ;;., •�. , g "aimed • l}'-:4--, ., F:, land, 340 U. S. 268, 282 (1951) (Frankfurter, J. concurring I asserts that the ordinance is not at the content of the �':',r.4 .�" • it films shown at `adult motion picture theatres,' but rather at 'Y' ,*,,. r4' . - : in result)). "[B]efore deferring to[Renton's]judgment, [we] ; the secondaryeffects of such theaters on the surrounding ;6' ! _� must be convinced that the city is seriously and comprehen- f and thus is >,�t�••>� .'<_, : sively addressing" secondary land-use effects associated with community, ante, at 47 (emphasis in original), ,f,, .f,•4,� 4."., _ IL simply a time, place, and manner regulation.' This analysis ;. 'k •• adult movie theaters. Metromedia, Inc. v. San Diego, 453 •'. F ; : U. S. 490, 531: (1981) (BRENNAN, J•, concurring in judg- is misguided. ,:,.• i; ;;: :::: lit The fact that adult movie theaters may cause harmful"sec- ta;:N` t , ment). In this,case, both the language of the ordinance and ; ondary" land-use effects may arguably give Renton a corn- ;,, _: - t!:'::. its dubious legislative history belie the Court's conclusion 11 pelling reason to regulate such establishments; it does not ;,,, • that "the city's:pursuit of its zoning interests here was un- 1 E I mean, however,- that such regulations are content neutral. ;.:,. ,;.;• :.,, related to the suppression of free expression." Ante, at 48. ! 1; 'The Court apparently finds comfort in the fact that the ordinance does ;, '` ' ' ' A not "deny use to those wishing to express less favored or more contro- ,s. ;,; ;;; ;.'.,.'' The ordinance discriminates on its face against certain 5 versial views." Ante, at 48-49. However, content-based discrimination ``•" • " 1. 1 is not rendered "any less odious" because it distinguishes "among entire 1 �.,., forms of speech based on content. Movie theaters special- 1 1, 1 classes of ideas, rather than amongpoints of view within a particular ' p'! '. 's izing in "adult motion pictures" may not be located within �l class." Lehman v. City of Shaker Heights, 418 U. S. 298, 316 (1974) ' "' .. 1,000 feet of any residential zone, single- or multiple-family (BRENNAN, J., dissenting); see also Consolidated Edison v. Public Co. dwelling, church, park, or school. Other motion picture the- p;; Service Comm'n of N. Y•, 447 U. S. 530, 537 (1980) ("The First Amend- Ifil 0- •?; ment's hostility to content-based regulation extends not onlyto rest!ictions `••-y*5L f; aters, and other forms of "adult entertainment," such as ;. bars, massage parlors, and adult bookstores, are not subject j ▪ � x # i 'on particular viewpoints, but also to prohibition of public discussion of an �_ 1 *." .; entire topic"). Moreover, the Court's conclusion that the restrictions im- ,'.. 1 to the same restrictions. This selective treatment strongly posed here were viewpoint neutral is patently flawed. "As a practical suggests that Renton was interested not in controlling the matter,the speech suppressed by restrictions such as those involved[here] x.�:::. ` "secondary effects" associated with adult businesses, but in ;! will almost invariably carry an implicit,if not explicit, message in favor of , , discriminating against adult theaters based on the content of more relaxed sexual mores. Such restrictions,in other words,have a po- i', ' . : = .'' the films they exhibit. The Court ignores this discrimina- 1, tent viewpoint differential impact. . ,To treat such restrictions as :;?; s, ,,.., , ' "r;:;,,. declaringthat Renton is free "to address the viewpoint neutral seems simply to ignore reality. Stone, Restrictions of ``:'; torytreatment, i Speech Because of its Content: The Peculiar Case of Subject-Matter Re- t :.4 s#.' .,potential problems created by one particular kind of adultli strictions, 46 U. Chi. L. Rev. 81, 111-112(1978). F ; 4 .. _AF;.r business," ante, at 52-53, and to amend the ordinance in the `i 68 OCTOBER TERM, 1985 - -fr';c -RENTON v. PLAYTIME THEATRES, INC. 59 -i:itfg ;i s 6, 41 BRENNAN,J., dissenting BRENNAN, J., dissenting 475 U. S. a, k i :s° ,; • use planning." App. to Juris. Statement 81a. The amended future to include other adult enterprises. Ante, at 53 (cit- ••$M1' ; ordinance also lists certain conclusory "findings" concerning ing Williamson`v. Lee Optical Co., 348 U. S. 483, 488-489 ,. ' ', r adult entertainment land uses that the Council purportedly (1955)).2 However, because of the First Amendment inter- _;. r, relied upon in adopting the ordinance. Id., at 81a-86a. The ests at stake here, this one-step-at-a-time analysis is wholly 4", inappropriate. s city points'to these provisions as evidence that the ordinance i ,` ,, was designed to control the secondary effects associated with d "This Court frequently has upheld underinclusive classi- ., ,�:� adult movie theaters, rather than to suppress the content of fications on the sound theory that a legislature may deal , *, the films they exhibit. However; the "legislative history" of with onepart of aproblem without addressingall of it. _ ; ':. k ,,'1: the ordinance strongly suggests otherwise. `t: See e. g., Williamson v. Lee Optical Co., 348 U. S. 483, ] y:, Prior to the amendment, there was no indication that the t 488-489 (1955). This presumption of statutoryvalidity, ''',`' P p ;, however, has less force when a classification turns on y`. ,'` ordinance was designed to address any "secondary effects" a >F�i ,'''' single adult theater might create. In addition to the suspi- g the subject matter of expression. [A]bove all else, the ' ' 'w:� ciouslycoincidental timingof the amendment, many of the First Amendment means that government has no power , tjJ, to restrict expression because of its message, its ideas l'i . .'City Council's "findings" do not relate to legitimate land-use 1 its subject matter, or its content' Police Dept. of Chi- 11- concerns. As the Court of Appeals observed, "[b]oth the < cago v. Mosley, 408 U. S.; at 95." Erznoznik v. City of 1,,:. magistrate and the district court recognized that many of the i. Jacksonville, 422 U. S. 205, 215 (1975). h dF`,, stated reasons for the ordinance were no more than expres- ,' j, ,,,o sions of dislike for the subject matter." 748 F. 2d 527, 537 In this case, the city has not justified treating adult movie v i :r (CA9 1984).3 That some residents may be offended by the theaters differently from other adult entertainment busi- '' f.• *?- content of the films shown at adult movie theaters cannot nesses. The ordinance's underinclusiveness is cogent evi- + dence that it was aimed at the content of the films shown in ,y '., form the basis for state regulation of speech. See Termi- �:', niello v Chicago, 337 U. S. 1 (1949). adult movie theaters. ;I, ', ';` "findings"„ B , •4'_ Some of the findings added by the City Council do relate ' k' ``' to supposed "secondary effects" associated with adult movie Shortly after this lawsuit commenced, the Renton City ;!Y''' 4'';`` Council amended the ordinance, adding a provision explain- : ; . : -.;-'. <;,;r°k 8For example, "finding" number 2 states that ing that its intention in adopting the ordinance had been ' < �.�.; "to promote the City of Renton's great interest in protesting ;.•'l'`' '`'., "[l]ocation of adult entertainment land uses on the main commercial thor- r_ f, a oughfares of the City gives an impression of legitimacy to,and causes a loss and preserving the quality of its neighborhoods, commercial °;'�`. of sensitivity to the adverse effect of pornography upon children, estab- %'y',,iaa'r: ' districts, and the quality of urban life through effective land f.:: ,:4:. fished family relations,respect for marital relationship and for the sanctity ^' •.4C_�_ .. of marriage relations of others, and the concept of non-aggressive, consen- PThe Court also explains that "[t]here is no evidence that, at the time '',t k; ':'`. s',,- sual sexual relations." _App. to Juris. Statement 86a. the Renton ordinance was enacted,any other adult business was located in, ,A•,. ��t�i _ '''r:F".y "Finding"number 6 states that or was contemplating moving into, Renton." Ante, at 52. However, at 41,;x','.^" "[lineation of adult land uses in close proximity to residential uses, the time the ordinance was enacted, there was no evidence that any adult -•`, ,1": >: churches, parks, and other public facilities, and schools, will cause a deg- movie theaters were located in, or considering moving to, Renton. Thus, :;,e., ,, ,- .. 'ili •• radation of the community standard of morality. Pornographic material there was no legitimate reason for the city to treat adult movie theaters :.«r; j,,r.,; has a degrading effect upon the relationship between spouses. Ibid. differently from other adult businesses. ".' 'r'" x .,, 60 OCTOBER TERM, 1985 'y: • ,' RENTON v. PLAYTIME THEATRES, INC. 61 ' 1 BRENNAN, J., dissenting 475 U. S. {'.;--0 41 BRENNAN,J., dissenting theaters.' However, the Court cannot, as it does, merely :i vif: dens the ordinance imposed upon constitutionally protected accept these post hoc statements at face value. [T]he pre- h^ •, expression. sumption of validity that traditionally attends a local govern- ,-•i • ;` The Court holds that Renton was entitled to rely on the ment's exercise of its zoning powers carries little, if any, 4t• ;,r experiences of cities like Detroit and Seattle, which had en- weight where the zoning regulation trenches on rights of .x: ;t <, acted special zoning regulations for adult entertainment expression protected under the First Amendment." Schad `4:i. :A•:. businesses after studying the adverse effects caused by such v. Mount Ephraim, 452 U. S. 61, 77 (1981) (BLACKMUN, J., ; 4 X establishments. However, even assuming that Renton was concurring). As the Court of Appeals concluded, [t]he ,' y concerned with the same problems as Seattle and Detroit, record presented by Renton to support its asserted interest �' ' it never actually reviewed any of the studies conducted by in enacting the zoning ordinance is very thin." 748 F. 2d, " f"xx,..,: those cities. Renton had no basis for determining if any of ,'� at 536, 's 5 the "findings"made by these cities were relevant to Renton's The amended ordinance states that its "findings" summa- ,,F.x ;., : problems or needs.' Moreover, since Renton ultimately , rize testimony received by the City Council at certain public '.'it?,,; adopted zoning regulations different from either Detroit or hearings. While none of this testimony was ever recorded .,i1 � ';.' Seattle, these "studies" provide no basis for assessing the or preserved, a city official reported that residents had .« effectiveness of the particular restrictions adopted under the objected to having adult movie theaters located in their corn- 'I; , ` ordinance.' Renton cannot merely rely on the general ex- munity. However, the official was unable to recount any .' ' . J testimony as to how adult movie theaters would specifically }'' 'As part of the amendment passed after this lawsuit commenced, the "protected" 7ii.� • CityCouncil added a statement that it had intended to rely on the Wash- affect the schools, churches, parks, or residences -� o `: ' a ington Supreme Court's opinion in Northend Cinema, Inc. v. Seattle, 90 by the ordinance. See App. 190-192. The City Council con- " 4:,,i' .' Wash. 2d 709, 585 P: 2d 1153(1978), cert. denied sub nom. Apple Theatre, ducted no studies, and heard no expert testimony, on how ., 1,: •? � f�,�}. Inc. v. Seattle, 441 U. S. 946(1979), which upheld Seattle's zoning regula- the protected uses would be affected bythepresence of an *?• 1 tions against constitutional attack. Again, despite the suspicious coinci- adult movie theater, and never considered whether residents' ,,,:q> ' , dental timing of the amendment,the Court holds that"Renton was entitled { concerns could be met by "restrictions that are less intru- ';' ?"u:�,' to rely . . . on the;`detailed findings' summarized in the . . . Northend „ r.� , Cinema opinion." Ante, at 51. In Northend Cinema, the court noted sive on protected forms of expression. Schad, supra, at 74. ;:; hit „ ;-r•;.,.�<„ ..,. that [t]he record is replete with testimony regarding the effects of adult As a result, any "findings" regarding "secondary effects r t �, movie theater locations on residential neighborhoods." 90 Wash. 2d, at caused by adult movie theaters, or the need to adopt specific 0 • '. ; 719, 585 P. 2d, at 1159. The opinion however, does not explain the evi- •; • locational requirements to combat such effects, were; not ' ?-._'r '` o ' '' x1�• �, , r,; dence it purports to summarize, and provides no basis for determining � "findings" at all, but purely speculative conclusions. Such :. -3tit., ' : whether Seattle's experience is relevant to Renton's. « t :!:, .' 'As the Court of Appeals observed: }.' findings�� were not such as are required to justify the bur- 11j• ;.e .,.. "Although the Renton ordinance purports to copy Detroit's and Seat- n(" i.;:,:1 :''- tle's,it does not solve the same problem in the same manner. The Detroit 'For exdmple, "finding"number 12 states that , 4, , :w.�':4,=,;:, ordinance was intended to disperse adult theaters throughout the city so q "[1]ocation of adult entertainment land uses in proximity to residential `�`.4ryi}4;F ; that no one district would deteriorate due to a concentration of such uses, churches, parks and other public facilities, and schools, may lead to --:tJ_.;:.;. theaters. The Seattle ordinance,by contrast,was intended to concentrate 1, increased levels of criminal activities, including prostitution, rape, incest :'4a. , t ,- ,' the theaters in one place so that the whole city would not bear the effects - � of them. The Renton Ordinance is allegedly aimed at protecting certain and assaults in the vicinityof such adult entertainment land uses." Id. r a. �- ;"4' " ':: uses—schools, parks, churches and residential areas—from the perceived " 62 OCTOBER TERM, 1985 a>• ,' RENT0N v. PLAYTIME THEATRES, INC. 63 BRENNAN, J., dissenting 475 U. S. t `' 41 BRENNAN,J., dissenting s.. k }t Applying this standard to the facts of this'case, the ordi- periences of Seattle or Detroit, for it must "justifyits ordi- `f � ,,,,;. nance in the context of Renton's problems—not Seattle's or ,,, .:'1, nance is patently unconstitutional. Renton has not shown 3' S Detroit's problems." 748 F. 2d, at 536(emphasis in original). ',�Y • ,,_ that locating adult movie theaters in proximity to its churches, the circumstances here strongly suggest that the :� .'. .." schools, parks, and residences will necessarily result in unde- In sum, .,;r; ' ` = sirable "secondary effects," or that these problems could not ': ordinance was designed to suppress expression, even that -a#1f....h ;. constitutionally protected, and thus was not to be analyzed as ..,�f ���' be effectively addressed by Iess intrusive restrictions. a content-neutral time, place, and manner restriction. The .tii ' : , II `' 1,, Court allows Renton to conceal its illicit motives, however, -.. r-._ Even assuming that the ordinance should be treated like a by reliance on the fact that other communities adopted simi- , �; content-neutral time, place, and manner restriction, I would lar restrictions. The Court's approach largely immunizes _,:: : `.t�.; still find it unconstitutional. "[R]estrictions of this kind are 11 to. .,�..�:.... such measures from judicial scrutiny, since a municipality can ,f;,; -.: readily find other municipal ordinances to rely upon, thus 4�. valid provided . . . that they are narrowly tailored to serve a P �,, : significant governmental interest, and that they leave open always retrospectively justifying special zoning regulations ` ,. for adult theaters.' Rather than speculate about Renton's ,;:,,,A N :..: •ample alternative channels for communication of the informs- : I f+�� tion." Clark v. Community for Creative Non-Violence, 468 4 motives for adopting such measures, our cases require the °n}"y" U. S. 288, 293 (1984); Heffron v. International Society for ti conclusion that the ordinance, like any other content-based :a *'•' t: Krishna Consciousness, Inc., 452 U. S. 640, 648 (1981). In ; restriction on speech, is constitutional "only if the [city] can ,: r r applying this standard, the Court "fails to subject the alleged 11 show that[it]is a precisely drawn means of serving a compel- 3;.4.;''' interests of the [city]to the degree of scrutiny required to en- k ling [governmental] interest." Consolidated Edison Co. v. { Hob. r - sure that ex ressive rotected bythe First Amend- 41 s p activityp Public Service Comm'n of N."Y., 447 U. S., at 540; see also .r`>r 5 y ,;' ment remains free of unnecessary limitations." Community ; ,i Police �'" ` ^� Carey v. Brown, 447 U. S. 455, 461-462 (1980); ,:iG -' for Creative Non-Violence, 468 U. S., at 301 (MARSHALL, J., Department of Chicago v. Mosley, 408 U. S. 92, 99 (1972). , ,'` ,, dissenting). The Court "evidently [and wrongly] assumes ; „i Only this strict approach can insure that cities will not use 5 that the balance struck by [Renton] officials is deserving ps their zoning powers as a pretext for suppressing constitu- ,,t. 1i�:.>,:;;,.,;, of deference so long as it does not appear to be tainted by tionally protected expression. '" mY: content discrimination." Id., at 315. Under a proper ap- d ,,,,;,..„,A.-:� placation of the relevant standards, the ordinance is clearly ;.: unconstitutional. ` unfavorable effects of an adult theater." 748 F. 2d, at 536 (emphasis in "'` •,,..'.,! ; 'i rr, ; y=.:; A +9l original). _ 1; ",='`.`e; i ,;I 'As one commentator has noted: ''Y:;,. • The Court finds that the ordinance was designed to further "[A]nyone with any knowledge of human nature should naturally assume ,Y' -� , : ;� ' ; that the decision to adopt almost any content-based restriction might have r .;,`ems , Renton's substantial interest in "preserv[ing] the quality of 'i' been affected by an antipathy on the part of at least some legislators to the ;�' <ti'Y.,.;.` urban life." Ante, at 50. As explained above, the record I I gi p • 1r`t . here is simply insufficient to support this assertion. The city ;1:1 ideas or information being suppressed. The logical but, r assumption, in other words, is not that there is not improper motivation but, rather, because " & made no showing as to how uses "protected"by the ordinance legislators are only human, that there is a substantial risk that an im 7 f,l; .; , 1 permissible consideration has in fact colored the deliberative process." would be affected by the presence of an adult movie theater. I 5 il.. Stone, supra n. 1, at 106. :Thus, the Renton ordinance is clearly distinguishable from a 4R sr51 N Y:. J F OCTOBER TERM, 1986 '°'?°`" RENTON v. PLAYTIME THEATRES, IN.,. 65 f. 475 U. S. y t�'' �- ' > 41 BRENNAN, J., dissenting BRENNAN, J., dissenting t ;•,; ` 1. � := by restricting them to "`the most unattractive, inaccessible, the Detroit zoning ordinance upheld in Young v. American !--,-.:,};! and inconvenient areas of a city"'); Purple Onion, Inc. v. Mini Theatres, Inc., 427 U. S. 50 (1976). The Detroit ;.�-, �. ordinance, which was designed to disperse adult theaters � , �� , ' ,_ Jackson, 511 F. Supp. 1207, 1217 (ND Ga. 1981) (proposed , ''i , '.' sites for adult entertainment uses were either unavailable, throughout the city, was supported by the testimony of 9: i,,.. unusable, or so inaccessible to the public that . . they urban planners and real estate experts regarding the adverse I ,,,., . .n, r �,, amount to no locations"). effects of locating several such businesses in the same neigh- , } ,,p • Despite the evidence in the record, the Court reasons that borhood. Id., at 55; see also Northend Cinema, Inc. v. .,;-- ,; 4; - . •R. F the fact "[t]hat respondents must fend for themselves in the Seattle, 90 Wash. 2d 709, 711, 585 P. 2d 1153, 1154-1155 -4 .,' real estate market, on an equal footingwith other ros ec jq P P (1978), cert. denied sub nom. Apple Theatre, Inc. v. Seattle, ,7,..i.*' tive purchasers and lessees, does not give rise to a First 441 U. S. 946 (1979) (Seattle zoning ordinance was the ,1(c ;,mix -, Amendment'violation." Ante, at 54. However, respond- "culmination of a long period of study and discussion"). ~; �;: ents are not on equal footing with other prospective pur- Here, the Renton Council was aware only that some resi- . ' ri.:;, .. chasers and lessees, but must conduct business under severe ! : restrictions not imposed upon other establishments. The dents had complained about adult movie theaters, and that , = other localities had adopted special zoning restrictions for - ,'t '4 ''' Court also argues that the First Amendment does not compel such establishments. These are not "facts" sufficient to jus- ,, « tify the burdens the ordinance imposed upon constitutionally *a= & 3;,: the gkinds overnment to ensure that adult theaters, or any other of speech-related businesses for that matter, will be protected expression. u . b ;_ able to obtain sites at bargain prices." Ibid. However, re- ' ; • , , -, ;: spondents do not ask Renton to guarantee low-price sites for ' ° x their businesses, but seek only a reasonable opportunity to Finally;the ordinance is invalid because it does not provide , 4 for reasonable alternative-avenues of communication. The , > operate adult theaters in the city. By denying them this District Court found that the ordinance left 520 acres in Ren- ,• ri opportunity,' Renton can effectively ban a form of protected ton available for adult theater sites, an area comprising about h,- ._ '�„ ; _ speech from its borders. The ordinance "greatly restrict[s] five percent of the city. However, the Court of Appeals ., access to . lawful speech," American Mini Theatres, 4:2 supra, at 71, n. 35 (plurality opinion), and is plainly 1: found that because much of this land was already occupied, �' �•^ f, "[1]imiting adult theater uses to these areas is a substantial •i4 _ _•unconstitutional. i;, restriction on speech." 748 F. 2d, at 534. Many available ; sites are also largely unsuited for use by movie,;theaters. FNr ;-' , 3�., f','3 1 •See App.,.231, 241. Again, these facts serve to distinguish 4 .r •°„ - ,` �, � this case from American Mini Theatres, where there was no f��.. ;=�-MV,.:>>`,. indication that the Detroit zoning ordinance seriously limited „ , the locations available for adult businesses. See American ro 4t.,, {,. Mini Theatres, supra, at 71, n. 35 (plurality opinion) ( The tF�:. situation would be quite different if the ordinance had thej' ``5 ,t,,t greatly restricting access to . . lawful speech")• ,.1: effect of. `' r" see also Basiardanes v. City of Galveston, 682 F. 2d 1203, : Ta y~ , ,-!-,= f=' 1214 (CA5 1982) (ordinance effectively banned adult theaters .,"5 g, ,r.• ~ F: 1 1. '- . ^,,, } ,' 734 85 SUPR• COURT REPORTER 380 'U.S. 51 380 U.S. 52 FREEDMAN v.STATE OF MARYLAND 735 '.-1-- Cite as 85 S.Ct.734(1965) .,` tili 380 U.S. 51 is recognize ause of danger of tolera- effectively to bar all,� .'rings of unpro- 14. Constitutional Law �274 , - Ronald L. FREEDMAN, Appellant, ting, in area-w. First Amendment free- tected films, requirement cannot be ad- Theaters and Shows C=F2 v. doms, existence of penal statutes suscep- ministered in manner which will lend Procedural scheme of Maryland mo- STATE Y STATE OF MARYLAND• tible of sweeping and improper applica- effect of finality to censor's determine- tion picture censorship statute failed to i tion. tion as to whether film constitutes pro- provide adequate safeguards against un- - No. 69. tected expression. due inhibition of protected expression Argued Nov. 19, 1964. 4. Constitutional Law C=90 • `, • A where.(1) if censor disapproved film ex- Decided March 1, 1965. Apparatus of censorship is always 10. Constitutional Law C=90' hibitor was required to assume burden fraught with danger and is viewed with Only judicial determination in ad- of instituting judicial proceedings and suspicion. II.S.C.A.Const: Amends. 1, proceeding insures necessarypersuading protected,,; versarycourt that film was 1-.. Defendant was convicted, in the 14. i,., sensitivity to freedom of expression and, expression, (2) once board had acted rr Criminal Court of Baltimore of publicly 5. Constitutional Law€.042 therefore, onlyaagainst film, exhibition'thereof was ro- 'Fw'` exhibiting a film not submitted to board Even though defendant's refusal to proceduren requiringmP . ,' judicial determination suffices to impose hibited pending judicial review, however • on a- ' of censors. The Court of Appeals af- submit film to board was violation of only valid final restraint freedom-of ex- .F, protracted, and (3) statute provided no firmed, 197 A.2d 232, 233 Md. 498, and one section of censorship statute, he had pression. assurance of prompt judicial determina- < ' defendant appealed. The Supreme Court, standing to challenge other provisions tion. U.S.C.A.Const. Amends. 1, 14. '' ` ,' Mr.Justice Brennan,held that procedural where, in substance, his argument was f 11. Constitutional Law C�90 scheme of Maryland motion picture cen- that, because censorship apparatus op- 15. Constitutional Law C�274 sorship statute failed to provide adequate crated in statutory context in which For noncriminal process which re- How,or whdether, staute.wass teo gincor- i n quires prior submission of film to censor safeguards against undue inhibition of judicial review could be too little and too to avoid constitutional infirmity, exhibi- into statutuireschemeed racensors cards- �; protected expression since (1) if censor late, statute lacked sufficient.safeguards iik- disapproved film, exhibitor was required for confining censor's action to judicially for must be assured, by statute or au- motion pictures was for state to decide. thoritative judicial construction to assume burden of instituting judicial determined constitutional limits and, that censor will within specified brief proceedings and persuading court that therefore, contained same vice as statute ' period, 16. Criminal Law C '804(2) film was protected expression, (2). once delegating excessive administration dis- either issue license or go to court to re- It is common knowledge that films I strain showingof film. U.S.C.A.Const. are scheduled well before actual exhibi- . 3 :. board had acted against film, exhibition cretion: Amends.1,14 's` thereof was prohibited pending judicial - tion: = A=s 6. Constitutional Law C�90 I . review,however protracted,and(3) stet- 12. Constitutional Law C�90 It is true of motion pictures,as well "r ute provided no assurance of prompt as other forms of expression, that any For noncriminal process which re- judicial determination. Felix J. Bilgrey, New York City, for A"` 1 system of prior restraint comes to court . quires prior submission of film to censor appellant. --; Reversed. bearing heavy presumption against its to avoid constitutional infirmity, any re- ' " sa . , constitutional validity. U.S.C.A.Const. straint imposed in advance of judicial Thomas B. Finan, Baltimore, Md., for Amends. 1, 14. determination on merits must be limited 1 - - ;' a ' '` _ 1. Constitutional Law C=90 to preservation of status quo for shortest appellee. 7. Constitutional Law C�90 - ;>,��, � Prior restraint is not necessarily un- fixed period compatible withsound judi- - A noncriminal process which re- Mr. Justice BRENNAN delivered the. k constitutional under all circumstances. cial resolution. U.S.C.A.Const. Amends. U.S.C.A.Const. Amends. 1, 14. quires prior submission of film to censor 1, 14. opinion of the Court. , y avoids constitutional infirmity only if it x; 2. Constitutional Law C�42 takes place under procedural safeguards 13. Constitutional Law c�90 Appellant sought to challenge the con-._. One has standing to challenge stet- designed to obviate dangers of censor- stitutionalityof the Maryland motion lc- `=y ry pie- ,,,,-,:),- ute, on ground that it delegates overly ship system For noncriminal process which re- ture censorship statute, Md.Ann.Code, #i`; broad licensing discretion to administra- quires prior submission of film to censor 1957, Art. 66A, and exhibited the film i s "Revenge �4 =t; tive office in area of freedom of expres- 8. Constitutional Law C�90 to avoid constitutional infirmity, proce- at Daybreak" at his Baltimore .. " . ,'I'' sion, whether or not challengers conduct For noncriminal process which re- dure must assure prompt final judicial theatre without first submitting the pie- • could be proscribed by properly drawn quires prior submission of film to censor decision, to minimize deterrent effect of ture to the State Board of Censors as re- . statute and whether or not he has applied to avoid constitutional infirmity, burden interim and possibly erroneous denial of quired by § 2 thereof? The State for license. of proving that film is unprotected ex- license. =k`'' pre_sion must rest on censor. U.S.C.A. concedes that the picture does not violate =• -F.e3, 3. Constitutional Law C '42 Const.Amends.1,14. I. Md.Ana.Code, 1957 Art. 66A, 2: � Standing of one who might have had � § witted by the exchange, owner or lessee ` =' license for asking to call into question 9. Constitutional Law C=274 "It shall be unlawful to sell, lease of the film or view and duly approved whole scheme of licensing when he is State mayrequire advance submis- lend,ore viewt or use any of Marylandy picture and licensed by the Maryland State Board q film in the State un- of Censors, hereinafter in this article prosecuted for failure to procure license sion of all films, but in order to proceed less the said film or view has been sub called the Board." 60 .,., ....._ ••- ...,...._ ...._.._._._.. ..,, ti .. ,,.... .,,, s.a.b.L.UMELN V.STATE OF MARYLAND 737 Cite as 85 S.Ct.734(1965) the statutory standards 2 and cumsbsnces." ",antam Books, Inc. v. "[i]t is that ques, alone which we the time and manner provided for 53 would have Sullivan, 371 =1. 58, 70, n. 10, decide," 365 U.S., a..., 81 S.Ct., at 393, taking appeal to the Court of Ap- s4 and it would therefore be inaccurate to peals." 83 S.Ct. received a license if properly submitted, say that Times Film upheld the specific but the appellant was convicted of a § 2 631, 639, .9 L.Ed.2d 584 (emphasis in features of the Chicago censorship ordi- Thus there is no statutory provision lviolation despite his contention that the original). -Theexhibitor'sargumentthat nance. for judicial participation in the proce- -- =,mA statute in its entirety unconstitutionally the requirement of submission without dure which bars a film, nor even assur- 432 impaired freedom of expression. The more amounted to a constitutionally pro- Unlike the petitioner in Times Film, ante of prompt judicial review. Risk of`' Court of Appeals of Maryland affirmed, hibited prior restraint was interpreted appellant does not argue that § 2 is un- delay is built into the Maryland pro- k_ constitutional simply because it ma 233 Md.498, 197 A.2d 232, and we noted by the Court in Times Film as a conten- Y pre- in the, as is borne out by experience; probable jurisdiction, 377 U.S. 987, 84 tion that the "constitutional protection vent even the first showing of a film in the only reported case indicating the S.Ct. 1919,12 L.Ed.2d 1042. We reverse. includes complete and absolute freedom whose exhibition may legitimately be the length of time required to complete an <'' to exhibit, at least once, any and every subject of an obscenity prosecution. He appeal, the initial judicial determination 7 ''7.'=. I. kind of motion picture. * * * even if presents a question quite distinct from has taken four months and final vindica- <,'' that passed on in Times Film; accepting tion of the film on appellate review, this film contains the basest type of por- 4 [1] In Times Film Corp. v. City of the rule in Times Film, he argues that six months. United Artists Corp. v. TI nography, or incitement to riot, or force- g § Chicago,.365 U.S. 43, 81 S.Ct. 391, 5 ful overthrow of orderly government 2 constitutes an invalid prior restraint Maryland. State Board of Censors, 210 L.Ed.2d 403, we considered and upheld * * * „ 47, 81 S.Ct., I because, in the context of the remainder Md.586, 124 A.2d 292. 365 U.S., at 46, a requirement of submission of motion at 393. • The Court held that on this of the statute, it presents a danger of !;Y pictures in advance of exhibition. The "narrow"question, id., at 46,81 S.Ct.,at unduly suppressing protected expression. [�] In the light of the• difference • Court of Appeals held, on the authority I He focuses particularly on the procedure between the issues presented here and in r393, the argument stated the principle bycensorship Appeals erred of that decision, that"the Maryland ten- for an initial decision the Times Film the Court of -< , against prior restraints too broadly; , sorship lawmust be held to be not void on. citing a number of our decisions, the board,which,without any judicial partic- in saying that,since appellant's refusal to its face as violative of the freedoms pro- ipation, effectively bars exhibition of submit the film-to the Board was a via Court quoted the statement from Near v. tected against State action by the First any disapproved film,unless and until the lation only of 2,, "he has restricted State of Minnesota,283 U.S. 697,716, 51 § ' and Fourteenth Amendments." 233 Md., S.Ct.625,631,75 L.Ed.1357,that"[t]he exhibitor undertakes a time-consuming himself to an attack on that section <._. at 505, 197 A.2d, at 235. This relianceappeal to the Maryland courts and suc- se i, _ rotection even as to previous restraint ii. , on Times Film was misplaced. The only P ceeds in having the Board's decision alone, i A,1'1- question tendered for decision in that is not absolutely unlimited." In rejecting 55 and lacks standing to challenge any of the case was "whether a prior restraint was the proffered proposition in Times Film - re- other provisions (or alleged short- necessarily unconstitutional under all cir- the Court emphasized, however, that versed. Under the statute, the exhibitor comings) of the statute." 233 Md., at is required to submit the film to the 505, 197 A.2d, at 236.. Appellant has not ' 2. 11Sd.Ann.Code,1957,Art.66A, §6: "(c) What films tend to debase or cor- Board for examination,but no time limit challenged the submissionrequirement in "(a) Board to examine, approve or rupt moralzt-For the purposes of this • is imposed for completion of Board ac- a vacuum but in a concrete statutory disapprove films.-The Board shall ex- article, a motion picture film or view amine or supervise the examination of all shall be considered to be of such a char- tion, § 17. If the film is disapproved, or context. His contention is that § 2 ef- films or views to be exhibited or used in acter that its exhibition would tend to any elimination ordered, § 19 provides fects an invalid prior restraint because ' debase or corrupt morals if its dominant that the structure of the other provisions of • the State of Maryland and shall approve P purpose or effect is erotic or porno-and license such films or views which are moral and proper, and shall disapprove graphic; or if it portays acts of sexual "the person submitting such film or the statute contributes to the infirmity of 9 _ such as are obscene, or such as tend, in . immorality, lust or lewdness, or if it ex- view for examination will receive im- § 2; he does not assert that the other ^` the judgment of the Board, to debase or pregsly or i®pliealy presents such acts mediate notice of such elimination or Provisions are independently invalid. .. ;i' corrupt morals or incite to crimes. All as desirable. acceptable or proper pat- • disapproval, and if appealed from, In the area of freedom of ex t.• ,,f films exclusively portraying current terms of behavior. such film or view will be expression events or pictorial news of the day, corn- "(d) What films tend to incite to promptly re- is well established that one has standing examined, in the presence of such to challenge a statute on the ground that monly called news reels,may be exhibited trine.-For the purposes of this article, without examination and no license or a motion picture film or view shall be person, by two or more members of it delegates overly broad licensing dis- fees shall be required therefor. considered of such a character that its the Board, and the same finally ap- . cretion to an administrative office,wheth- "(b) What films considered obscene.- ex1 bition -would tend to incite to crime proved or disapproved promptly aft- er or not his conduct could be proscribed if the theme or the manner of its presen-For the purposes of this article,a motioner such re-examination, with the by a properly drawn statute,and•whether picture film or view shall be considered taton presents the commission of crim- right of appeal from the decision of or not he applied for a license. "One who s to be obscene if, when considered as a in acts or contempt for law as consti- r PP the Board to the Baltimore City might have had a license for the asking whole, its calculated purpose or domi- Mtnpro£rable, desirable, acceptable, Court of Baltimore City. There may '* * * call into question the whole Want effect is substantially to arouse sex- respectable or commonly accepted be- nal desires, and if the probability of this harior, or if it advocates or teaches the shall be a further right of appeal scheme of licensing when he is prose- effect is so great as to outweigh what- use of, or the methods of use of, oar- from the decision of the Baltimore cuted for failure to procure it." Thorn- • ever other merits the film may possess. cotes or habit-forming drugs." City Court to the Court of Appeals hill V. State of Alabama, 310 U.S. 88, 97, _ _ of Maryland, subject generally to 60 S.Ct, 736, 742, 84 L.Ed. 1093; see II V V - -- -- ---- ------ ------- arse u.a. bU FREEDMAN v.STATE or MARYLAND Cite as Sa S.Ct.734(1965) 739 - Staub v. City of Baxley, 355 U.S. 313, II. process which re% ' the prior sub- over, we are well aware that, even after 319, 78 S.Ct. 277, 280-281, 2 L.Ed.2d mission of a film tt __nsor avoids con- expiration of a temporary restraint, an 302; Saia v. Peopleaof of State of New [6] Altho the Court has said that motionpictures are not"necessaril sub- stitutional infirmity only if it takes place administrative refusal to license,signify- York, 334 U.S. 558, 68 S.Ct. 1148, 92 y under procedural safeguards designed to -. L.Ed. 1574; Thomas v. Collins, 323 U.S. ject to the precise rules governing any ing the censor's view that the film is un- otherparticular method of " obviate the dangers of a censorship sys- protected,may have a discouraging effect. 516, 65 S.Ct. 315, 89 L.Ed. 430; Hague expression, tem. First, the burden of proving that on the exhibitor. See Bantam Books,Inc- �^ v. CIO, 307 U.S. 496, 59 S.Ct: 954, 83 Joseph Burstyn, Inc. v. Wilson, 343 U.S. the film is unprotected expression must v. Sullivan, supra. Therefore, the proce- 495, 503, 72 S.Ct. 777, 781, 96 L.Ed. L.Ed. 1423; Lovell v. City of Griffin, rest on the censor. As we said in 1098,it is as true here as of other forms Speiser dure must also assure a prompt final 303 U.S. 444, 452-453, 58 S.Ct. 666, 669, of expression that"[a]ny system of prior _ v. Randall, 357 U.S. 513, 526, 78 S.Ct. judicial decision, to minimize the'.deter-82 L.Ed. 949: Standing Standi is recognized i* restraints of expression comes to this 1332, 1342, 2 L.Ed.2d 1460, "Where the rent effect of an interim and possibly p: such cases because of the ng a heavy presumption transcendent value of speech is involved, erroneous denial of a license. Court bearing danger of tolerating, in•the area of FirstP due process certainly requires * * * Without these safeguards,it may prove against its constitutional validity." Ban- too • Amendment freedoms, the existence of a tam Books, Inc. v. Sullivan, supra, 372 that the State bear the burden of per- burdensome to seek review of the penal statute susceptible of sweeping and U.S. at 70, 83 S.Ct. at 639. "# * suasion to show that the appellants en- ` . gaged in criminal speech." Second,while centhesense of emotion pictureson. Particularly iti ulama ltake improper application." NAACP v. But- Minder the Fourteenth Amendment, a ton, 371 U.S. 415, 433, 83 S.Ct. 328,338, State is not free to adopt whateverpro- the State may require advance submis- P sion of all films,in order to proceedvery little to deter exhibition in a given :: 9 L.Ed.2d 405; see also Amsterdam, cedures it pleases for dealing with ob- effec- tively to bar all showings of unprotectedff locality. The exhibitor's stake in any one Note, The Void for-Vagueness Doctrine scenity * * * without regard to the y in the Supreme Court, 109 U.Pa.L.Rev. possible consequences for constitution- films, the requirement cannot be admin- picture may be insufficient to warrant istered in a manner which would lend an a protracted and onerous course of liti- ' 67, 75-76, 80-81, 96-104 (1960). Al- hand,protected speech." Marcus v.Search effect of finality to the censor's determi- gation. The distributor, on the other N •s . Warrant,367 U.S.717,731,81 S.Ct.1708, y hand, may be equally unwilling to accept though we have no occasion to decide nation whether a film constitutes protect- `; 1716, 6 L.Ed.2d 1127. The administra- the burdens and delays of litigation in a whether the vice of overbroadness infects ed expression. The teaching of our cases particular area--when, without such diffi- culties,{ ) r f 3 tion of a censorship system for motion the Maryland statute, we think that ap- pictures presents peculiar dangers to is that,because only a judicial determine- he can freelyexhibit his film in • � pellant's assertion of a similar constitutionally protected speech. Unlike tion in an adversary proceeding ensures by the necessary sensitivity to freedom of most of the rest of the country; for we a prosecution for obscenity, a censorship only procedure re are told that onl four States and a hand- , danger in expression a y t the Maryland apparatus of censorship- pose puts the initial burden on therequiring ful of municipalities have active censor- exhibitor or distributor. Because the a judicial determination suffices to im- ship laws one always fraught with danger and pose a valid final restraint. See Bantam ; censor's business is to censor, there in- Books Inc. v. Sullivan supra• A [14] It is readilyapparent .: viewed with suspicion-gives him stand- heres the darn ger that he may well be P Quan- he that the ing to make that challenge. In substance less responsive than a court-part of an tity of Books v. State of Kansas, 378 Maryland procedural scheme does not U.S. 205, 84 S.Ct. 1723, 12 L.Ed.2d 809; satisfy these criteria. First, once the 7,4 his argument is that,because the appara- independent branch of government-to p censor disapproves u-, _ tus operates in a statutory context in the Marcus v. Search Warrant, supra Man- the film, the exhibitor f` which judicial review may be too little ' ss ual Enterprises,Inc.v.Day,370 U.S.478, must assume r= and too late, the Maryland statute lacksconstitutionally p 518-519, 82 S.Ct. 1432 1453-1454, 8 80 protected interests in �`.• _ sufficient safeguards for confining the free expression4 And if it is made un- L.Ed.2d 639. To this end, the exhibitor the burden of instituting duly onerous,by reason of delay or other- must be assured, by - •judicial proceedings and of persuading- _ - :a censor's action to judicially determined s9 the courts that the film is ,G;-,t wise,to.seek judicial review,the censor's protected constitutional limits, and therefore con- statute or authorita- expression. Second, once the Board has determination may in practice be final. five acted thins the same vice as a statute dele- judicial construction,that the censor against a film, exhibition is pro- •J.,, gating excessive administrative discre- [7-13] Applying the settled rule of will,within a specified brief period,either, hibited pending judicial review, however ,, '` issue a license or protracted. Under the statute tion. our cases, we hold that a noncriminal go to court to restrain , appellant showing the film. Any restraint imposed could have been convicted if he had shown 3. Appellant also challenges the eonstita- �t See Emerson.. The Doctrine of Prior in advance of a final judicial determine- the film after unsuccessfully seeking a tionality of § 6, establishing standards, Restraint, 20 Law&Contemp.Prob.648, tion on the merits must similarly be lim- license, even though no court had ever as invalid for vagueness under the Due 656-659 (19W). This is well illustrated ited to preservation of the statusquo ruled on the obscenity of the film. Third, Process Clause; § 11, imposing fees for by the fact that the Maryland Court of it is abundantly clear that the Maryland for the shortest the inspection and licensing of a elm, Appeals has reversed the Board's disap- test fixed period compatible statute provides no assurance of prompt as constituting an invalid tax upon the profs) in every reported case. United with sound judicial resolution. More- judicial determination. We hold there- exercise of freedom of speech; and § 23, Artists Corp.'v.Maryland State Board of , allowing exemptions to various classes of Censors, supra; Maryland State Board 5. An appendix to the brief¢mici curie of exhibitors, as denying him the equal pro- of Censors v_'Times Film Corp.,212 Md. the American Civil Liberties Union and statute, and the cities of Chicago, De- tection of the laws. In view of our re- 454, 129 A2ti 833; Fanfare Films, Inc. its Maryland Branch lists New York De- troit, Fort Worth and Providence as salt, we express no views upon these v.Motion Picture Censor Board,234 Md. Virginia and Kansas as the three States having similar ordinances. Twenty-eight °f the remaining 39 municipal ordinances claims. 10,197 A 2di9. _ having statutes similar to the Maryland y and codes are listed as "inactive." "" "•p• ou 380 U.S. 102 UNITED STATES v.VENTRESCA fore, that appellant's conviction must be knowledge fiL>` films are scheduled well741 . Cite as 8a S.Ct.741(1965) reversed. The Maryland scheme fails to before actu:: ibition,and the require- sons there stated, I �t Court, Mr. Justice Goldberg, held that I. provide adequate safeguards against un- ment of adv a,- submission in §2 recog- sa affidavit for_warrantto search house for "£l due inhibition of believe any protected expression, nizes this. One possible scheme would form of censorship—noillegal distillery showed probable cause and this renders the § 2 requirement of be to allow the exhibitor or distributor speedy or prolonge it may be—is per- prior submission of films to the Board anfor issuance r warrant, where affidavit to submit his film early enough to ensure missible. As I see it, a pictorial takenallege that large amounts it sugar were '% invalid previous restraint. an orderly final disposition of the case tation occupies as presen- taken"to house by automobile on several P preferred a position occasions, and that five-gallon cars were III. before the scheduled exhibition date— as any other form of expression. If lseen being taken from automobile to -' far enough in advance so that the ex-s [15] How or whether Maryland is to hibitor could safely advertise the open- and businesscensors ,f ome athed pulpit,from m the h publishing ublic house, and that Investigators of Alcohol incorporate the requiredprocedural safe- on a normal basis. Failing such a P p• ' P and Tobacco Division of Internal fermenting • q ing platform—as they are—they should beReve- guards in the statutory scheme is, of scheme or sufficiently early submission banned from the theatre. I would not ad- nue Service smelled odor of course, for the State to decide. But a under such a scheme, the statute would mit the censor even for the limited role mash nn two occasions when they walked model is not lacking: In Kingsley Books, have to require adjudication considerably accorded him in Kingsley Books, Inc. v. in front of house. Inc. v. Brown, 354 U.S. 436, 77 S.Ct. more,. prompt than has been the case Brown, 354 U.S. 436, 77 S.Ct. 1325, 1 Judgment reversed. • _ 1325 1 L.Ed.2d 1469, we upheld a New under the Maryland statute. Otherwise, .' ' York 1L.E injunctive L.Ed.2d 1469. I adhere to my dissent in Mr. Justice Douglas and Mr. Chief procedure designed to litigation might be unduly expensive prevent the sale of obscene books. That protracted, or the victorious exh exhibitor 113330-.331.at case. I Any tauthor authority to obtain as Justice Warren dissented. _ procedure postpones any restraint might find the oust ro itious o P P pportun- temporary injunction gives the State"the against sale until a judicial determina- ity for exhibition past. We do not mean tion of obscenity following notice and an to lay down rigid time limits or proce- 446a177 S.Cyzing t., at 1330.wer of a censor."The regime of 1. Courts State) t- adversary hearing. The statute provides dures, but to suggest considerations in _ - Kingsley Books "substitutes punishment United i tooes considerde Court dgsany 4 for a hearing one day after joinder of drafting legislation to accord with local by contempt for ed certiorari standards by • the judge must hand down his exhibitionpunishment by jury t ? , issue, pi actices, and in doingwhich reviewin decision within two days after terming- avoid the potentially chilling effect of the would put an endat ?to all forms and tl es g court should approach `§' 77 interpretation of affidavits supporting = tion of the hearing. The New York pro- Maryland statute ontypes search warrants duly issued by examin- `_ _cedars operates without prior submission sion. protected expres- of censorship and give full literal mean- ing to the command of the First Amend- 4 g magistrates. U S.C.A.Const.Amend. sggi to a censor, but the chilling effect of a Reversed: `- censorship order,even one which requires went. judicial action for its enforcement, sug- of 2• Searches and Seizures a7(5) gents all the more reason for expeditious Mr' Justice DOUGLAS, whom Mr: Evaluation of constitutionality rule P Justice BLACK joins; concurring. search warrant should begin with determination of the question whether a °Srn,�Mn that informed and deliberate determina- a particular film is constitutionally protect-. On several occasions I have indicated T • ed. my view that movies are entitled to the tions of magistrates.empowered to issue - ~ warrants are to be same degree and kind of protection under preferred over happen [16] The requirement of prior sub- the First Amendment as other forms of ried.action ar of officers who may mission to a censor sustained in Times expression. Superiorto make arrests. .U.S.C.A.Conse Amend. 34 Films 8 Depart- :4; Fed:Rules Crim.Proc. rule 41, 18 Film is consistent with our recognition went of Education, 346 U.S. 587, 588, 74UNI - 380 MS.TE 1� 61 S.Ct. 286, 98 Lid. 329; Kingsley In- • T� STATES, Petitioner, . U•S.C..� t that films differ from other forms of ex- ternational Pictures Corp. v. Regents, v 3. Searches and Seizures«3(1) pression. Similarly, we think that the 360 U.S. 684, 697, 79 S.Ct. 1362, 1369, Giacomo VENTRESCA. In doubtful or more marginal '! nature of the motion picture industry 3 L.Ed.2d 1512; Times Film case a x . may suggest different time limits for a City of Chicago, 365 U.S.43, 78, 81 Corp.S.Ct. No. 28. search under. warrant may be sustain- Argued Jan. 18 and 19, 1965. able where one without it will fall. U.S. !; judicial determination. It is common 391, 410, 5 I:.Ea2d 403* Proc.rule Amend. 4; Fed.Rules Crim.For the rea- Decided March 1, 1965. C.A.Co 41, 18 U.S.C.A. • * The Court today holds that a system of 4 y diciai determination of obscenity must be 4. movie censorship must contain at least Defendant was convicted of possess- Searches and Seizures a3(1)three assured. Thus a Chicago censorship Search of motor vehicle can be made procedural safeguards if it is not system, upheld bT the narrowest of mar- ing and operating an illegal distiller to run afoul of the First Amendment: Y• without search warrant where it is not (1) the censor must have the burden of gins in Times F,•,,, Corp. v. City of Chi- The United States District Court for instituting judicial c o,3 U S.4;. 81 S.Ct.391, could not practicable to secure warrant because proceedings; (2) any survive ceder trnday's standards, for it Massachusetts entered judgment,and the vehicle can be quickly moved out of local- restraint prior to judicial review can be defendant a x imposed only briefly in order to reserve provided not one of these safeguards, as f ppealed. -The Court of Ap- ity or jurisdiction in which warrant must the status p the dissenters mere expressly pointed i peals, 324 F.2d 864, reversed the convic- be • r quo; and (3) a prompt ju- out id, at 73-.�, 81 S.Ct. at 407�08. tion, and the United States brought cer- Fed.Ru es U.S.C.A.Const 41,m18d. 4; tiorari. The United States Supreme C.A. U.S. �----_ j_ um rtinc leu.n 4.s.roitration Associa- The Tamaris argue, 3`4' = dicial review of an arbitration award other leged unconstitutionality of adult use ordi=_tion. In•addition, correspondence of record agreement second, that ,the ,F., gr provided for submission to''a `;'�'.>:-: than as provided by the terms of the,par- nance. The United States District Court indicates that Bache offered the Tamaris a "quorum" of the committee, that CBOT { ..... ties' agreement. The appeal that was here for the Southern District of Illinois,J. Wal- third option, submitting to arbitration be- rules define a "quorum" as five members, accorded was in compliance with the.par- do Ackerman, J., 475 F.Supp. 1199, entered fore the Board of Governors of the New and that the fact that seven members heard - ties' agreement and the CBOT rules and an order declaring portions of the ordinance tion to proceed before the CBOT gives a = was not unfair to the Tamaris. Their con- unconstitutional but upholding other por- the case renders' the award invalid. A =_ • hollow ring to their argument of inherent "quorum" is "[s]uch a number of the offi- • tention is-therefore without merit tions and owners and employees appealed bias or the appearance thereof in•CBOTany body as is, when- --`' and city cross-appealed. The Court of Ap- cers or members of VI. peals, Tone, Circuit Judge, held that: (1) arbitrators.12 duly assembled, legally competent to trans- •act business" Webster's New Internation - °'a [8] Finally,' the Tamaris argue that the portion of zoning provisions of adult use Finally, if it were necessary to go fur- ;r ordinance requiring that adult uses be sepa- thee, we would find no indication in the al Dictionary 2046 (2d ed. 1937). Plainly,' n•.I district court erred in failing to accord them discovery with respect to the Klopfenstein- rated from one another by distance of at record of the arbitration proceeding of ac- the agreement meant only that the dispute > " least 500 feet was constitutional; (2) adult tual bias on the part of the arbitrators; must be resolved by at least the minimum' y. Fivian episode and the hiring of the CBOT _F'„ Secretary by Bache. We have held that the use ordinance's requirement that an adult their decision that the Tamaris voluntarily number necessary to make up a quorum,. bookstore obtain a license was constitution-. agreed to arbitrate is reasonable in view of not that a number in excess of the mini- district court acted correctly in dismissing the Tamaris' complaint as to these matters, al in that it provided both a method for the record. Even if it were assumed that mum was unacceptable. authorities to enforce scatter zoning and a. the Tamaris signed the original agreement and it follows from that ruling that no facts Third, the Tamaris argue that because that the Tamaris could discover would ren- means of assuring those seeking to open a to arbitrate under duress, because they CBOT rules require an arbitrator to contin- - ' �'. der their claim sufficient. Moreover, with new adult use of legality of proposed site; could not otherwise obtain a commodity (3) adult use ordinance's requirement that customer account with Bache, theydid not ue to hear a case if his term on the arbitra- y respe• ct to the Klopfenstein-Fivian matter, make a timely assertion of agreement.un- tion committee expires during the pendency n the Tamaris had a full opportunity to ex- .before an adult bookstore license may issue of an arbitration and his ` . proposed premises must be inspected to as- er duress when a dispute over the contractpresence on the- ;_; plore the circumstances in the arbitration arose. _Instead they,again agreed to arbi- . panel is necessary topreserve a uorum 'the_ .-4 certain whether they are in compliance with Y g gTq hearings. • tration by selecting, the CBOT forum, by failure of panel members whose terms ex= 3_ • - � --.. all applicable provisions of city code was executing a submission to arbitration with pired duringthe := The judgment of the district court is af- invalid prior restraint on speech, having as pendency of the instant , firmed: its operative distinction contents of books Bache, and by actually proceeding .to liti= arbitration to step down when their res :3``, • gate the case before"the arbitration-corn- ence was not-necessary to preserve,a quo' ,rya.ii AFFIRMED.: _ .- sold, where requirement was imposed on mittee. The committee could_reasonably rum voids the award. The rule does not _ adult bookstores and all other adult uses have determined that-four a eements-to P ;<clr� b4krX but not on ordinary bookstores; (4) adult . . speak to the'-situation in which resence is ' ! -,r=- .. ' w arbitrate were sufficient -to demonstrate • : o S KernuMeeRsrsreM use ordinance's requirement that police de- not necessary_to preserve a quoivm:.,.The :I T voluntariness on the "part of the Tamaris: holdover panel,members were not,.there- - ___ �s , •: __ partment make special investigation 'into' . fore, in violation of CBOT rules, and the. _ . - background of those_'who apply for adult ' • IV. .,, bookstore license was unconstitutional; and , award is unaffected. ;L.,-: [6] The Tamaris next argue that the - r (5) adult use ordinance's requirement that arbitration panel was not properly consti- gut , , .• - u r before being employed in an adult. book tuted'under CBOT rules and the;terms`of j Frank �al.,`Plaintiff-Appel- ••• GENUSA et store a.person must. an. employee;-: the •submission'agreement. -.They argue The '` 'Lrii. ;'., _ lants,'Cross-Appellees; permit was unconstitutional. _first :that the_submission agreement`'=r_e= [7] Tamaris next_ argue that. the ._ ._ .-._--=" _ = `l quired that the dispute be submitted to award must be set aside because the ap- r^, v.. 1 ,-Affirmedin part,-reversed in part, and procedureas by ' CITY OF 'PEORIA:et al., Defendant-Ap-' vacated in part. - • :_ .s . • "-`present" members of the'arbitration com- pealsprovided the CBOT was : . ,_�.::-, - - _ meaningless Theybase the argument •pellees,:Cross-Appellants. • mittee,-and that most of the members'who g . on heard the dispute were not members-of the the fact that the_ appeals committee did not - _ ' •- Nos. 79-1716,..79-1717. : .-,�y.;- -> 1. Federal Courts �614, 712 committee when the Tamaris and Bache P ;-:, .., • acce t written briefs or oral argument in United States Court of Appeals; 9 executed the submission a eement. -:`The considering the a S �' ppeal. The Tamaris-had _ � ;; _ Allegations of complaint that purpose • - --•° eventh Circuit. '- -•�=°•a �'- of adult use`ordinance -was to elimina agreement also provided, however, for sub- the opportunity to communicate •with:the - ' _ adult .bookstores.:because of contents of mission:of the dispute'to "substitutes" for: appeals committee and present-any argu- _ Argued Jan. 17, 1980..- _ books sold would not be treated as admitted the"present'.',,members. We find no merit. ment they wished by letter. They chose not .• Decided April 25; 1980. ,r�: .'- _ on appeal, despite fact that no answer had • in-this argument: :_- `' :'_ to do so. We know of no right to a non-ju- (' been filed and thus allegations were techni-- . • 12. :The Tamaris also argue that all arbitrators " a, - '-' cally admitted,where they were not treated �' .They thus conclude that their choice of forum i Ow`rs.'and employees„of.adult book- as admitted .by -parties either h'- �'istrict. who could have heard their dispute with Bathe ;c � would have been biased because.they all would f no consequence. This'argument is friv- -, store" ' action against city seeking.de- court or on briefs on appeal a' strict have had ties to the commodities business. �a�„In�Tamari 1t is also 1565uded by this F.d at 1201-02. s deci- /� Clara:,.;'.tnd injunctive relief,;based on ., court did not treat them as admi�,Cu.._ := : • 12U4 619 FEDERAL:REPORTER, 2d SERIES f° GENUSA v, CITY OF PEORIA 1205 Cite e9 818 F 2d 1203 (1980) 2. Municipal Corporations 0=121. ... -:: 7. Zoning and Planning 0=76 • ; '>i`:. ?- investigation into background of those who such lease or contract were prohibited by - Owners and employees of adult book- Adult use ordinance's requirement that ,` I apply for. an adult bookstore license was First and Fourteenth Amendments,•since stores did not have standing to attack den- an adult bookstore• obtain a license was . unconstitutional, since no justification.for they invaded privacy •without legitimate 11 nition of "adult bookstore" in adult use constitutional in that it provided a method such investigation other than furtherance justification. U.S.C.A.Const.Amends. 1,14. ordinance on ground that it was vague and for authorities to enforce scatter zoning and - of an unconstitutional end was offered and . overbroad, where they acknowledged that the means of assuring those who sought to since such investigation would thus invade 17. Municipal Corporations-�121 their bookstores were within scope of defi- open a new adult use of legality of proposed _ privacy for no legitimate purpose. U:S.C.A. Owners and employees of adult book- nition, nor did they have standing to assert site. U.S.C.A.Const. Amends. 1, 14. Const. Amends. 1, 14. stores did not have standing to challenge vicariously First Amendment interests of : a,� adult use ordinance's requirement that in- 13. Municipal Corporations 1=121 - others, where definition was readily subject 8. Municipal Corporations 0-121 ' 3 • formation of the same kind required of an Owners and employees of adult book- to narrowing construction. U.S.C.A.Const. Owners of adult bookstores had stand- applicant for an adult bookstore license also stores had standing to attack constitutional Amends. 1, 14. - - • ing to challenge adult use ordinance's.re- ' be provided by any partner or limited part- validity of adult use ordinances disclosure 3. Zoningand Planning �571 quirement that, before an adult bookstore -'''1 ner of partnership applicant,where they did requirements for application for adult use Owners and employees of adult book- license may issue, proposed premises must =`' licenses. not allege facts that would place them in stores had standing to challenge zoning pro- be inspected to ascertain whether they are " • category of partners, limited partners or ground in compliance with applicable --'-'' • 14. Zoning and Planning 76 any visions of adult use ordinance on P pp cable provisions of li other person having an interest in adult that such ordinance constituted an invalid city code,since owners were directly affect- + Adult use ordinance's requirements of bookstore. an applicant for an adult use license disclose prior restraint on speech, even though they ed by the inspection requirement.. ..--- s PP were not subject to.such provisions under :3- his name and address,exact nature of adult 18. Municipal Corporations �-121 grandfather clause of ordinance, where 9. Constitutional Law �90.1(4) • rt, use to be conducted in proposed place of - • Corporate adult bookstore owner and the had standing to contest ordinance's Adult use ordinance's requirement that, • :3'^{ business, and a_statement of familiarity corporate officer had standing to challenge Y g before an adult bookstore license mayissue - with provisions of ordinance and compliance adult use.ordinance's requirement that in,' licensing requirement and validity oflicens- �; • ' ; formation of the same kind required of an ing requirement turned on validity of`zon_ proposed premises must be inspected,to.as- with them were legitimately related .to - q applicant for an adult bookstore license also ing provisions. U.S.C.A.Const.. Amends..1, certain whether they are in compliance with state interest underlying zoning provisions PP 14. applicable provisions of city code was an forcing a separation of adult uses and were be provided by -any officer or director of _:.,:. " p corporate applicant" _ • •'?= `'". invalid prior restraint on speech, having"as - ;~. '' therefore constitutionally valid U.S:C.A: 1P - 4..Zoning and Planning �76 . ._ �;;;�• its operative distinction content�`of books Const.•Amends: 1, 14. 19. Constitutional Law �82(7), 90.1(4) . ;,Portion of,zoning provisions of"adult sold, where requirement was imposed 'on 15. Constitutional Law'1=82(7) ...,.'':' ' a . Adult use ordinance's_ re uirement"that • use ordinance, requiring that adult-uses be--, _ =. q ..- q g adult bookstores and other adult uses but ' `Adult use ordinance's'requirement'that information of the same.kind required of an separated from one another by a distance,of not on ordinary bookstores. U.S.C.A.Const. - :,' an applicant for an adult use 'ordinance applicant for an adult bookstore license also - at least 500 feet,was constitutionaU.S.C.• Amends. 1;•14. _'2'w _. disclose aliases involved an invasion of ri- be Provided by "an officer or director of • A.Const. Amends:1;14. - . P P.• -•: y - ' • vacy not justified by zoning provisions'of the corporate"applicant"`wasari unjustified 5. Zoning and Planning �571 :•- •-•-- 10. Constitutional Law �90.1(1) . _-, _.,�.r ,_,;,. ,-- ,~ - ;_1,: ordinance forcing a separation of adult uses prior restraint and-an invasion•of privacy . Where-validit of adult use ordinances Adult bookstores may not be singled and was not otherwise justified and there- and .thus was invalid. U.S.C.A.Const: -validity'Of y out for s ecial regulation unless it can be requirement that adult uses be separated by P . :•. : ''..:,y _ fore was constitutional] - : .� ..; = •• <• Y invalid: .U.S.C.'A. Amends. 1;14. + :.;.:-: _: :: :.: :_ _ .. �_ demonstrated -that such re lation is net-- `` -ti"'" _----_ 500 feet 'was enough--to=support-licensing _. _, -,•. �. .,_ �::,.:T_,�,�, --- --Const.-.-Amends.-1-14 -- • ,--.7 - --------_------- -- - " -- -_-- -- devised to further a substantial and e" 20. Munici al Cor orations 121 ..provisions of ordinance and' thus''it "was rowly ;;.:.t, P P . <> : 16. Constitutional Law �-82(7) unnecessary for purposes'of-Considering va- legitimate state interest unrelated to cen- .i^ : ; : Owners and employees of adult book- • Adult use ordinance's •re quirements lidity .of licensing provisions'• to -.decide sorship or,suppression of protected.expreS. . = _;-. q stores had standing to challenge validity o -whether other zoning restrictions were Val- lion. . U.S.C.A.Const. Amends.-1,14. •- { hat an applicant for an adult use license adult use ordinance's ,,,provision: ;that .:a t ce --:-i - -' disclose: all residential addresses for past license for-an._adult-bookstore shall issue • id,owners and employes of adult bookstores :-- 'he. ,._,� 11. Municipal Corporations �121 • ,= Y;E= ;: - , three years, ight, `weight, 'color`of'eyes unless "the applicant-is a •erson who is not • lacked•standing to challenge such other re- _.,,, t; , pp' p strictions. U.S.C.A.Const..,Amends.. .l 14. Owners of adult bookstores:were sub- _'``„;a E - ' and hair; business, occupation or employ- of good moral character and reputation in - . --' ject to and had standingto challengeprovi- °-'n= - 0- ment for threeyears immediate) preceding the community in which he or she resides:'' g ,,f4,� - ,_ immediately g 6. Municipal Corporations 121 -- : ; sion of adult use ordinance requiring police ;i` ., 4 t:: date of application; adult use or similar ,. _ Owners of adult bookstores had stand' department to make a special investigation - ':r ;1 business license history; all criminal or city 21.. Constitutional Laws 90.1(4) . ing to..challenge license:.requirement- :of into background of those who apply for_an 11 ' ;::: ordinance violation -convictions; finger- Adult use ordinance's provision that,a adult use ordinance on ground that re uire- - ;, • zx ?na=�'-.*. q It bookstore license. <., .�.„.,�.:. prints and photograph; names and address- license for_an adult bookstore 0,d11 Niue to. ment of a-license was an invalid prior re- _ : :' :; es a persons holding any-beneficial in- an applicant unless "the•applies a;per straint under First Amendment, since -- Constitutional Law �82 7 - - r ? N, tere__....:eal estate upon which adult use is son who is not of good moral ch...a„er.and license requirement applicable' to them. Provision of adult-use ordinance re uir=' fr> N u `- ' to be operated and,if premises are leased or reputation in the community in which he or --� . qq ,. _,. . iirvv ... ..........�.--.-.� ..-.--.-., �.. ..�-.- .- .- .. v.... ..� .,...... ....... 1NV Mess 819 F.2d 1203 (1980) • authorities an overbroad -discretion to im- more difficult for owners to sell their inter- 32. Municipal Corporations a-621 38. Constitutional Law 0-90.1(4) -;r: pose a prior restraint on protected speech. ests in their adult bookstores and would "y1. - Provision of adult use ordinance allow- - Adult use ordinance provision requiring •U.S.C.A.Const. Amends.1, 14. _ . present a continuing threat of loss •of • 11 ing revocation of an adult bookstore license permanent display of adult use license.had 22.Municipal Corporations 121 - license in the event of future conviction'of if licensee has violated other provisions-:of no discernible impact on protective free"; one of the specified offenses. ;k; the ordinance was constitutional to extent doms and was. not totally irrational and • Owners and employees of adult book- . . that other provisions of the ordinance were therefore was . constitutional... U.S.C.A: stores were subject to.and had standing to 27. Municipal Corporations 4-121 a constitutional. U.S.C.A.Const. Amends: 1, Const. Amends. 1, 14. attack adult use ordinance provisions that a Owners and employees of adult book- :;-0 . • . • license for an adult bookstore shall issue-to stores had standing to assert interests of ?` 14. 39. Municipal Corporations.4-621 an. applicant unless applicant, at time of persons not before the court in their attack 33. Municipal Corporations c8; 121 Adult use ordinance provision requiring application for renewal, would not be eligi- on validity of adult use ordinance provisions .;..K . Owners,and employees of adult book that licensee insure that his employees have ble for such a license upon the first applica that an adult bookstore license shall issue to '' stores had standing to contest validity of obtained- an adult bookstore employnient tion and operation as proposed by applicant, an applicant unless applicant has been con- provision of adult use ordinance.allowing permit was invalid. U.S.C.A.Const if permitted, would not have complied with victed of certain offenses or has held 'a revocation of an adult bookstore license if Amends. 1, 14. all applicable laws. massage parlor or liquor license which-has :6 1 applicant furnishes or permits to be,.fur • - 23. Municipal Corporations �621 been revoked for cause, inasmuch as `such nished any false information on a license 40. Municipal Corporations �621 - Adult use ordinance provision that an Provisions presented a real.and substantial °=Yf application or an employee permit form. Adult use ordinance provision requiring threat of chilling protected speech by per- '='` police to inspect each licensed business not adult bookstore,license. shall issue to .an : <. �•. 34. Municipal Corporations 0=621 sons convicted of past crimes or wrongs. 'n less than twice a year to determine compli- applicant unless applicant, at time of appli- 4"_ Adult use ordinance provision allowing ante with ordinance amounted to an im er U.S.C.A.Const. Amends. 1 14. P . cation for renewal,would not be eligible forP:= revocation of an adult bookstore license if such license upon a first application ,was 28, Constitutional Law �90.1(1) _. .t s missible singling out of adult bookstores for P PP applicant furnishes or permits to be fur- special regulation. U.S.C.A.Const.Amends. constitutional to the extent that,licensing Freedom to operate a bookstore is pro- nished any false information on a license 1, 14. ._ provisions of ordinance were found to be so. tected by First Amendment, inasmuch as application form or an employee permit U.S.C.A.Const. Amends. 1, 14.. preservation of freedom of expression- re- form was constitutional.. U.S.C.A.Const: 24. Municipal Corporations �621 s=. quires'protection of means of disseminating Amends. 1, 14. Adam gBourgeois, Chicago, Ill. for lain- expression. U.S.C.A.Const. Amend: 1:-'4. '"-; =- Adult use ordinance provision that an - :- .. -. ..?;t::._- - ..: : -- - 35. Municipal Corporations �121 tiffs-appellants, cross-appellees. : ,._ _ P adult bookstore license shall issue"to'an 29. Constitutional Law 90.1(4),.., -j.J y r' :'j 'Employees of adult bookstores.,,had Eric Margolis, Legal Dept, City.of;Peo- applicant unless the operation`as proposed ., - Adult,use ordinance provisions that an ;: 'y -'- standing to contest validity_of adult„use ria, Peoria, Ill., 'for defendants-appellees_; by applicant, permitted, would:not.:coin--adult bookstore.•.license•.shall issue""to• an ' ".:Y.:a licant if ice ; ,; ordinance -provision requiring that.-before cross-appellants. • s rt ply with all applicable laws was:unconstitu- applicant.unless the applicant has been con- _'ems ' .: being employed in an adult bookstore per- tional.inas much as'.only'adultbookstores victed. of. certain offenses or has held a -°•-�� -;�,-=`-`. son must obtain.an employee __�.", Before TONE, WOOD and"CUDAHY :. ,• - - -"=�:' ��._ _ permit _tea-'. were subject to such'licensing re uirement: massageparlor or li uor licensee whit -Vas ' ="_ `-'`..-"`�:' .':'- : ;,-, >:rz:�. Circuit.Judes. ' -=-- 3 :-' . - q g q h ._., =.' f.Tw 36.+Constitutional Law �90.1(1) Y5. p,:;I g f,R . .. U.S.C:A.Const. Amends. 1, 14. been revoked for cause were invalid as un-. • '°' - constitutional ,prior;,restraints_ ,on-,speech. : :;;;M; "- Adult use ordinance provision•requiring TONE, Circuit Judge. 25. Municipal Corporations �595, 597, - -. �_ ' that before beingemployed in 'an''adult �'� 601.1 - U.S.C.A.Const. Amends. 1,_14:. 3.4'' „ ,y _ - The question in this case is .whether'a • _ _ bookstore person must obtain an employee __ City was required to•enforce"its build- 30. Municipal Corporations .e-121. ,•-, it'llrecently enacted',"adult use":ordinance,of . e- permit was unconstitutional in that it was a the City,of Peoria, Illinois,' places restric- ;_° ';•ing, health,'safety, and'fire'codes in even- -Owners and employees of adult book- ~-�� prior restraint on speech unrelated to'an .."' P Y •tons on the operation of adult bookstores handed'manner' and eoiild'''iiot' selectively stores had Standing-to-contest constitution= • = :; ,• '.'': • legitimate interest asserted by city. U:S.C. y _ - that cannot, be .squared with the First enforce them.a inst`'a bookstore`'because alit of adult use ordinance Provisions' ov-: as:-- i -' A.Const. Amends. 1, 14. - - .Y P g 1 Fx'` r s L Amendment as• made' .applicable to:the of the'content of the books.that:it'sold. erning suspension or revocation of an adult '�°=�>_>•.-1;-� " ' - U.S:C.A.Const.`Amends:1, 14. '•": bookstore license.` : :1 I',' .- 37. Constitutional Law 0'90.1(1) f:_-,- states by the Fourteenth Amendment.-The•.. .- r .' r • ' Adult use ordinance provision requiring Peoria ordinance,.which is modeled in part 26.-Munici al Corporations 121 `: 31:Constitutional Law �90.1(4) .> _.P � . ..... ,"=.; - a''':::-: :_ availability during business hours of em- on ordinance of the City of Detroit.that Owners and employees of adult book- •Adult use ordinance provisions govern- . _ ;.rr ployee permits`and_employee identification was held constitutional in Young v.:Ameri- _"' stores had standing to attack adult use ordi- ing suspension or revocation of an adult. -.• cards was unconstitutional.':U.S.C.A.Const. can Mini Theatres Inc.,427 U.S.50'96 S:Ct. mince'provisions that "an'-adult bookstore bookstore license upon finding that licensee ;`-'a ' �;4.;-'- , Amends. 1, 14. ' - 2440, 49 L.Ed2d 310 (1976), places•numer- _ license shall issue to•an applicant 'Unless has committed any of various offenses"or ' -.5'=-`` ='' -- ' :: �;; • ; ,+ 1: Pe( -llinois Ord. No. 10318.[hereinafter application forms Peoria has devise_ :nple- applicant has been convicted "of`~certain 1: olated provisions of city code regulat= syl 'gJ;: cited Peoria Ord.]. The ordinance was ment it are reproduced as an-appei i:.the.' crimes'Or-has held a massage parlor or i assage parlors or liquor were uncon- - '--- 1 ,._, •.adop t March 22, 1978, and was amended opinion of the district court. See 4 ._ 3upp. liquor licenses which have been revoked-for stitutional as prior restraints-on speech' ` '-:'. to its present form on January 16, 197s.:':The 1199, 1209-21. ::s cause..-9171Cp annh nwn..;mnna mnnlrl malrn'1+ TT Q!, A 1-,,,,,..1. A.......A� •1 1 A• ' ,•.,.€._ - W;r. .- .e PntirP nrAinanra anti the lirPnen anri nnrmif- . A biro U aA v !AL I ur rruitiA . 14UU : . 1208 619 FEDERAL REPORTER, 2d SERIES ,_ •I ;;;a • Cite as 619 F.26 1203 (1980) • ' ous zoning, licensing, and employee permit in the proceedings before the district court adult motion picture theaters, because of standing to sue -must be evaluated with their very nature, are recognized as hav- respect to each specific challenge. Accord- restrictions on the operation of adult book- or in the briefs filed before us. The district R ing serious, objectional [sic], operational ingly, standing is addressed in the discus- i stores and other adult entertainment estab- court did not treat them as admitted. Un- - lishments in Peoria? Plaintiffs, who are der these circumstances, neither do we. characteristics, particularly when several Sion of each challenged provision. owners of and employees in what are con- The court entered an order declaring por- of them are concentrated in certain areas IV. Definitional Provisions ceded to be-"adult bookstores" within the tions of the ordinance dealingwith adult thereby having a deleterious effect upon [2] Plaintiffs first attack the definition adjacent areas; and- is meaning of the ordinance, challenge the bookstore licensing and employee permit re- of"adult bookstore"in the ordinance on the ordinance onlyinsofar as it seeks to quirements unconstitutional but upholding - WHEREAS, it is necessary that these 7 regu- P g . ground that it is vague and overbroad: late the operation of adult bookstores.3 ,Ac- the validity of-the zoning provisions in the businesses be regulated in such a manner Under Young v. American Mini Theatres, cordingly, no issue is presented concerning ordinance. 475 F.Supp. 1199 (C.D.I11.1979). - -ii as to prevent this concentration and the Inc., supra, 427 U.S. at 58-61, 96 heS.Ct.. at the constitutionality of the ordinance as it A final judgment was entered enjoining ':` continued erosion of the character of the Inc.,2446, 2447, plaintiffs have no standing to applies to other types of adult use establish- enforcement of the offendingparts of the affected neighborhoods; and__ PP YP _:>;, litigate this issue. : ments. - ordinance. Plaintiffs have appealed from '! WHEREAS, the City of Peoria desires ` =Orr As we earlier noted, plaintiffs acknowl-- I. Procedural History the judgment insofar as.it upholds portions 1, to protect the youth of its community of the ordinance; defendants have cross-ap- ''- from objectional [sic] operational charac- edged that their bookstores are within the Shortly after the filing of plaintiffs' veri- - scope of the definition of"adult bookstore" lied complaint attacking the constitutionali- pealed from the judgment insofar as it in- • :•: teristics of such businesses by restricting found in the ordinance. The definition is i validates portions of the ordinance. their close proximity to places of worship, ty of the ordstrainnce,_the court issued a enforce-- _ `f schools and residential areas; • thus sufficiently precise to leave plaintiffs `; pOrary restraining order against II. Facts - ment of the ordinance and set plaintiffs' NOW, THEREFORE, BE IT- OR- in no doubt about whether their actions are k The facts of record are as follows: There ?�__ covered. Because of the importance of motion for preliminary injunction for early are at least three adult bookstores in Peo- - €K` DAINED . . ..5 p hearing. Both sides filed briefs and ar edFirst Amendment rights, however,litigants i ria, all of which were in operation at their - seeking to assert such rights are sometimes orally at the hearing, but no evidence was present locations at the time the ordinance „ - III. Standing to Suetii • , g granted standing to challenge vague or offered on either side. During the hearing' was ado ted° One is across the street from •. t P Because plaintiffs attack a number of overbroad laws even though they them: • the parties agreed that no facts were in the federal courthouse. Two are on-the0' s 1. dispute.„.., The court thereforeproceeded, diverse provisions of the ordinance their selves are not in doubt as to whether their other side of town. There is no evidence as _ j•:::r •' without objection from the parties, to'de- to the proximity of these bookstores to one •a. _ 5. Peoria Ord., supra note 1, Preamble.::The G: Specified Sexual Activities: are any of ,i } " 1preamble adopts virtuallyverbatim some of the the followingconditions: 4' tide the case on the merits. •" "` • another, whether Peoria contains other __n. - s _ p n"�,, more general language from the preamble to 1. Human genitals in a state of sexual` 11 1] 'in their verified�com laint laintiffs _adult use entertainment establishments, or, the Detroit ordinance that was at. issue'in stimulatiori or arousal; `j IF alle• ge that the purpose of` the ordinance- if so, where they are: Some plaintiffshave ,.: _r.: 7 Young v. American Mini Theatres, Inc.;.,427 2. Acts or representations of acts of'hu r• '`'` ,' _:,=' -.U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). ..'man masturbation,sexual intercourse or sod- • *` was to eliminate the stores'of theowner sought and obtained either-licenses or per- :_,,,„---• .. .v _ The Peoriapreamble is different from the-one •-= om bestiality, oral co ulation or flagella- ;f� plaintiffs and other adult bookstores inPeo- mits under the ordinance, but at least one ,, ''°-:-:_ y, y. P g - ..mA.' :involved in.Young,however,.in.that it.recites a tion; `; .r. .:..• 1' ria because of the content of the books they owner=plaintiff`'ha§ `not sought`a license; .,,z_ state interest in protectingminors frorii'the "i = ' and at least ;Several ,,employee-plaintiffs r 3: Fondling or erotic touching 'of human- sold and that the ordinance is haviii the '_ objectionable characteristics of adult uses.: See �' g :_. J •�`genitals, pubic region; buttock or female .,1, have not sought.em to employee permits. Finally, id. at 54 n.6,96 S.Ct. at 2444 n.6. _ breast; --• "`.. It, desired effect" Given that the books-inP Y P �.=�::;..defense counsel,conceded.in oral argument -= °:_=I `= 4. Excretory functions as part of or in.;_ - ^ ii before this court that Peoria does not re- question have never been held obscene and '; ___ 6.- The Peoria Ordinance contains a severability connection with any activities set-forth,. (1)= ---— are therefore entitled to First Amendment clause, § 4-61. Respect for the clause makes. • protection, admittingthese alle ations Quire that bookstores other than adult book- i , is necessary a particularized consideration of through (3) above. g H. Specified Anatomical Areas are any'of stores be licensed. ?a,i '� - each individual provision at issue. ., - _ - .. would- amount to :confessing judgment. , .; �,", •_ -', the following conditions: 'w =?�`: , =__:.` - --::,` 1. Less than completely and Opaquely_ Yet the defendants filed no answer and The ordinance contains the following P y . . i; '--• 7. Peoria Ord., supra note 1, § 4-43A�reads, thus left the allegations technical) admit- preamble: -- - =-: covered: (a)human genitals,pubic region,or. g Y P <.., v_'•n.; Adult Book Stores: An establishment pubic hair (b) buttock and (c) female breast - 1 ted. The=allegations have not been treated WHEREAS, adult book stores, caba- _.:�_ • -_� ing as a substantial portion of its stock below a point immediately above the top of by the parties as admitted,-however, either rets, body shops, massage parlors and trade, books magazines, films for sale..or .• • :;Y� the areola; and r -- • viewing on premises by use of motion picture 2. Human male genitals in a discernibly 2. In addition to adult bookstores,the ordinance ment, however, that the only relief sought by' `'= =�-- devices or any other coin-operated means, "��:;:;;`:�.;;::.. turgid state,even if completely opaquely cov- ,, regulates adult motion picture theater's, adult plaintiffs involves the constitutionality of the . s, --= - and other periodicals which are distinguished turgid k `'`'{ r: or characterized by their emphasis on matter r:, `mini motion picture theaters, 'adult entertain ordinance as applied to adult bookstores. We _=::a ', , Id. §4-43G &H. The definitions are virtually ment cabarets, body shops or model studios, accept this narrowing of plaintiffs' pleaded re- '' „;;4> .`�; depicting,describing or relating to"Specified g quest for relief. ```"''_ ' Sexual Activities," or Pi and massage establishments_ The ordinance -. .•.� -•«..-, <<`::. "Specified Anatomical that todefinitionsssueinexcept for subsece identicalDetroit 'subjects all of these "adult uses" to the same • "' '`i Areas" or an establishment with a segment was at Young P r,e. j' set of restrictions. • e ;-;.:AV-:";_ ;': f �,7•:=-_:- display tion G.4,which does not appear in tt� roit • 4 intiffs' counsel has informed us that there ., ors .devoted to the sale or dis la of ti • si`s.: dtr , ordinance. See 427 U.S. at 53 nn.9 96 our adult bookstores in Peoria. Defense ?y --:k._- sucl rial. 3. Plaintiffs'complaint sought a declaration that The terms "specified sexual activities" and S.Ct. at 2444 nn.4 &5. ; -the ordinance is counsel has told us that there were four, but =-Z 'w;` __ P unconstitutional on its face = „}: "specified anatomical :areas" are defined.in . that nnr hag rerPntly onne nut of business. - - 1210 619 FEDERAL REPORTER, 2d SERIES •;;,•;: "r111 "67" 7., 'd J. va `""""a. - C1te as 619 F2d 1203 (1980) ". - . conduct is covered and are not engaged in struction." See Young v. American Mini , in a straight line,without regard to inter- of them in order to.decide whether-the veningstructures or objects, from, the licensingrequirement has been imposed in conduct that-could not properly be made the Theatres, Inc., supra, 427 U.S. at 61, 96 J q object of the restriction the law seeks to S.Ct. at 2447.9 The issue of"whether' the -,- property line of the adult.use, to the accordance with a valid zoning scheme. impose.' This doctrine of standing to assert definition may have a "real and substan- nearest property line of another adult The portion of the zoning provisions that vicariously the First Amendment interests tial" impact on the exercise of protected use, school, place of worship or district requires that adult uses be separated from of others is not, however, without limits. rights of expression was also settled by zoned for residential use.12 -• -; one another by a distance_.of at least 500" 71 As in every case, plaintiffs must have a Young, in which similar definitions were , 'r_J feet is constitutional under the reasoning direct stake in the outcome in order to to. -�. [3] We first address the issue of plain- held to pose no such threat. Under advanced in Young v."American Mini Thea= satisfyArticle III case or controversyre- `,'1 tiffs' standing to attack these provisions. is Young, plaintiffs lack standing to attack :aj 2 tres Inc., supra. Even though here, un-; quirements. In addition, Young makes the definition on either vagueness or over- �i As an initial matter, plaintiffs are not sub- like in Young,ls the city has not demon- plain that the doctrine of vicarious standing breadth grounds. '':... ject to these restrictions,because, under the strated apast historyof congregated adult will not apply if the provision challenged is V. grandfather clause of the ordinance,13 the V. Zoning Provisions " n,,?_R uses causing neighborhood deterioration,we. "readily subject to a narrowing construction ==� bookstores which they own or in which they by the state courts" and is not so vague,or Plaintiffs next attack the zoning provi- are employed may continue in their current agree with the district court that a city overbroad that there exists a "real and sub- sions in the ordinance on the ground that locations so long as they are not converted need not await deterioration in order to act. stantial" possibility that its "very existence they constitute an invalid prior restraint on '"f.i into some other type of adult use. Plaintiff A legislative body is entitled to rely on the, may cause persons not before the speech. •The provisions in question require owners do not allege that they desire to experience and findings of other legislative Court to refrain from engaging in constitu- that an adult use, including an adult book- ,. bodies as a basis for action.. There is no. move the location of their bookstores, to tionally protected speech or expression." store,shall not be located within 500 feet of `<` reason to believe that the effect of congre- ^, open new bookstores, or to convert their Young v. American Mini Theatres, Inc., su- an existing adult use; within 700 feet of : .;;. gated adult uses in Peoria is likely to be. bookstores into some other form of adult pra,427 U.S. at 60-61,96 S.Ct. at 2447;. see any district zoned for low, medium, or high different than the effect of such eongrega- use. The inapplicability of the zoning pro- Erznoznik v. City_of Jacksonville, 422 U.S. density residential use;, within 500 feet of .I tions in Detroit. The Peoria City Council visions to plaintiffs' bookstores does not, 205, 216, 95 S.Ct. 2268,2276,45 L.Ed.2d"125 any pre-existing school or place of worship; found, in the preamble to the,brdinatce, EtZ1975 ; Broadrick v. Oklahoma, 413 U.S. or in a buildingcontainingan establishment -. however, deprive plaintiffs of any personal ( ) : that congregated adult uses cause"deleteri, 601 615, 93 S.Ct. 2908,2917, 37 L.Ed.2d 830 that in anymanner sells or dispenses,alto= -.,'�N stake in the outcome of a challenge to their P i ous effects, and the Supreme Court in • • (1973). We believe the.definition'in ques- holic beverages.11 Distances are to be ; - validity. As is discussed in Part VI-A of this opinion, infra, plaintiff owners also Young found that such effects were suffi tion is "readily subject to a narrowing con- measured, u :_r P zoning requirement than / contest, and have standing to contest, the cient to justify a t-�.. / . 8.. See, e.g., Young v:American Mini Theatres, 10. See Young v. American Mini Theatres, Inc., x g adult uses not be located-in close proximity: � validity of the ordinance's licensing require- to one another.17 That ruling is controlling Inc., 427 U.S. 50, 58-61, 96 S.Ct. 2440, 2446; 427 U.S. 50, 53 nn. 4 &5, 96 S.Ct. 2440,2444 � ment.14 As we conclude in Part VI—A; the 2447,49 L.Ed.2d 310(1976); Grayned v..City of -am.4&5,49 L.Ed.2d 310 id.at 58-61,96 S.Ct. Rockford, 408 U.S. 104, 108--09, 114-15;-92 •at 2446-2447 It is true that-Young rifled-Oh ,-. validity of the license requirement turns on here. ., S.Ct. 2294, 2298-99, 2302,. 33,L Ed.2d.:222 he overbreadth of the adult movie definition - - `.4: '� r: - the validity of the zoning provisions. -If the ' "' 1972, Ke shun v. Board of Repents,;,385 ,and not the•adult bookstore definition..;5<th' [5] The validity of the requirement that :'U.S.589,603--04,608-10,87 S.Ct.675,683284, •movie theater definition, however, ,contained A„--' T licensing requirement is valid, the owners adult `uses be separated by°500 feet"is 686-87, 17 L.Ed.2d 629(1967); NAACP v.But -,•.the"characterized"by an"emphasis"language `-.;" are required to obtain a license, for which - • "ton, 371 U.S. 415, 433, 83 S.Ct. 328, 338,:9 • and incorporated the same definitions of s eci- • _ r' '•`'.-. ,.. enough to support the lieensiilg provisions rP P -_ they must pay a $100 license fee. -They L.Ed.2d 405 (1963). See also Gooding v. Wil- fled sexual activities and specified anatomical sustained in Part.VI-A,"infra. It is.thus - a ' therefore have the requisite personal stake son, 405 U.S. 518, 521,92 S;Ct. 1103, 1105,31__"__areas-that applied to bookstores,,whichdefini' ___ " _=��-`-': . _ unnecessary;for-purposes_of considering the`_-__-_ L.Ed.2d 408(1972). See generally Amsterdam, . tions, as noted above, are substantially'the rr` in the outcome Of-a,challenge-to the zoning The Void for Vagueness Doctrine in the Su- same as those in the Peoria ordinance. More- provisions to meet standing requirements validity of the licensing provisions,to decide preme Court, 109 U.Pa.L.Rev. 67(1960); Note, over,the movie theater definition addressed in whether other zoning restrictions are valid. y`I - under Article III.- The First Amendment Overbreadth Doctrine, Young encompassed all theaters "used for :;?f( : We hold that plaintiffs lack -standing'to 83 Har_v.L.R_ev. 844(1970).' presenting"the defined materials. That defini; - __ tion was, we believe, at least as broad in this A? _ [4] Although plaintiffs urge that the. challenge these other restrictions. The part 9. The city has informed us that it presently -respect as is the adult bookstore definition; • ..-., i zoning provisions are unconstitutional as a of the district court's judgment that sus: interprets the ' l ,- -plaintiffs"provisions of the definition that which is limited to bookstores with a"substan- µdi,.:_ ''• _ . whole, we need not reach the validity•of all tams them is vacated,'and plaintiffs clam refer to"a substantial portion"of a bookstore's - tial portion" or a"segment or section"of their -_ •7- .`` stock in trade and to "a segment or section stock in trade devoted to defined materials. 12. Peoria Ord., supra note 1, § 46. Rehnquist, JJ.); id at 73-84 (Powell; J:, Con- devoted to"the type of materials defined in the We therefore consider Young controlling. ~: g': - curring). • ordinance as meaning that a bookstore is cov- ":. " •--• •- •. • ''"'`'�., 7F" 13. Id §4-45(D). • ered only if more than half its stock consists of 11. Peoria Ord, supra note 1;•§ 4-45. As the. 'C''.< ' 16. See id at 54-55 & nn. 6 & 8, 96 S.Ct; • adult materials. The city has not told us how it idistrict court rioted, the Twenty-First Amend- _ ;; €_', • 14. Unlike the zoning provisions, the license re- 2444-2445 &nn. 6,&8 (opinion of the Court); determines whether materials are"characteriz- ment may be relevant to the provision dealing quirement applies to adult uses in existence ed"byan"emphasis"on the specified acts anc with buildings in which alcohol is:dispensed. =" '' `- the ordinance.waspassed as well as to P P g P 17. See'id.;""id. at 71 & ti.34, 1 ;t. 2452 �;:, a .: idult uses. Id. §4-52. n.34 (plurality opinion); id at i, 80-81"&" anatomical areas,but Young held that language See California v. LaRue,409 U.S: 109, 93 S.Ct. :_ :F to be subject to narrowing in the context or 390, 34 L.Ed.2d 342 (1972). We do not under- =:::�r$ zr.t=- "•�7 15. 427 U.S. at 63-73, .96 S.Ct. at 2448-2453 n. 4, 96 S.Ct. 2454, 2457 & n. 4 (Powell,";J.,. adult films,and we believe that holding applies stand plaintiffs to contest the validity of this • ' •`'? °if, ,c.e.,e. t ;,,;.,P.; h., uI;roPr r T white & concurrine). • vrA1vUnA Y: l:l"1'Y Ulr' YEURIA 1213 with respect to these restrictions is" dis- 62--63, 96 S.Ct. at 2448, the requirement'of' g Cite as 61a F 2d 1203 (1s80>xT missed.tetensing of a bookstore is inherently more tern as to the issue in dispute. We there-- a license is also constitutional. It is ration- ` ;- . suspect than is the licensing. of a movie fore find that the license requirement is not ." ally related to the goal of "inverse,"• or - �� �' • VI. Licensing Provisions scatter aoning of adgot noes; itr theater. The reasoning that underlies rendered unconstitutional by its coverage of y:. providesYoung, however, is that cities mayuse zon- A. The Simple License Requirement both a method for authorities to enforce bookstores as_well' as movie theaters and • ing to break up congregations of adult uses: other adult uses. Accordingly, scatter zoning and a means of assuring that would otherwise cause urban bli ht g Y. we affirm [6] The Peoria ordinance makes it un- those who seek to open a new adult use of 1°" Young-acknowledges that the zoning power the judgment of'the district court that the lawful for anyone to operate an adult book- the legality of the proposed site. The pro- < . cannot be used as a tool to suppress or store in Peoria without first obtainingarequirement that an adult bookstore obtain cedural delay that the licensing provision restrict speech, but nothing in the opinions a license is valid. license.19 To obtain a license, the applicant occasions is limited by the terms of the must pay a$100 fee and satisfymanyother in Young indicates that the zoning of book- conditions as well. Plaintiffs contend,first, ordinance and is not argued to be excessive " stores should be viewed as more restrictive B. The $100 License Fee Requirement ••. that the requirement.oi a license is in itself in relation to its end 20 than the zoning of movie theaters. More- The Peoria ordinance requires that an an invalid prior restraint under the First Plaintiffs argue, however, that Young .F` over,nothing in the record of this case or in applicant for an adult bookstore license pay Amendment, and, second, that various con- dealt only with a requirement of a license =':r 17, common experience would warrant this a $100 fee.25 If, as we have held, the ditions imposed are invalid. Because the for adult-movie theaters; they contend - rt---: court in concluding that adult bookstores license requirement is valid, a fee in somelicense requirement is applicable to thethat, while a license may sometimes ro er- contribute less than other forms of adult amount is permissible to cover the cost of adult bookstores of the owner plaintiffs, p p ;`s use to the.injurious neighborhood effects regulation. Plaintiffs have not argued: ly be required of a movie theater, book- that may stem from a congregation of adult that standing requirements are satisfied.• stores may never be subjected to such a -.� , assuming the validity of the licensing requirement. Some support uses. The decline in property values and requirement, the fee is excessive. Accord can be found the general deterioration of a neighborhood [7] We have held in Part V of this spin- in opinions of the Supreme Court for the g ingly, we do not rule on whether it is. c=« ion, supra, that the zoning provisions that proposition that, under the First Amend- • - p=, that flows.from such a congregation would relate to separation of adult uses are consti- ment, state regulation of movie theaters �+ r„_, seem to follow equally from congregations C. Inspection Requirements Therefore,under Young v.Amer- mayY3,, that contain adult bookstores, adult movie - - tutional.an Mini Theatres,Inc., supra, 427 U.S. at bookstores?furtherIt may be,an stateth rethatlation'lif I. theaters, or other adult uses that bear little [8] The Peoria ordinance requires that. or no relationship to First Amendment con- before an adult bookstore license may issue, • 18. The effect of our Tulin is to deny .- -` •- '"g plaintiffs, opinion); id.at 84(Powell,J.,concurring);f see terns. Given this, and given also the fact the Fire, City Planning, and Inspections as a discretionary matter, standing to litigafe United states v. O'Brien,391 U.S.367,388-89; that the-distinction between print and film Departments must inspect the 'proposed- the constitutionality:of the` zoning provisions 88 S.Ct. 1673; 1685,20 Preclusive 672(1968)(Hat f+4 - media is,; for First Amendment purposes, premises to ascertain whether they are`in other than those relating the separation`'of yY, adult uses from one another."hee consider this. lan' J., .concurring). Preclusive effect is.'not _,�; not large, we think bookstores are subject. compliance with all applicable provisions of denial appropriate for -two reasons. •First, established by this record,however,and bailie absence of such an effect plaintiffs should not " to the same rule that governs movie thea- the:city code of Peoria?s- -The owner plain- plaintiffs-have,not demonstrated that they will be directly affected by the zoningdtbe accorded standing to contest the facial valid=provisions ity of the zoning �•-. -a 1p:' n.4;83 Sy Internat.i. 44 n.4(Harlan,J.,dissenting);'cf. 225ple 72968);.W. Douglas, The Right of the Peo-<.themselves, and we`think the 'challenging;of provisions as a whole.- ","=7,*- _:x,_. . _ Kingsley g g'•. . these provisions is best left to a ''* ' r;=: • r-: party;;who :" •: U Y. Pictures.Co v_ Re eats, ple 72-(1958). _ -:a _� would be directly affected and would therefor 19. _Peoria Ord., supra,note 1,,§.:.:47•J, '�'� -i• Ct.•1 62,1365-66;3 . a. e ._ The re-. :,, _ L Ed.2d 1512.6959).� But see authorities'cited have a greatei incentive to`litigate the quTrement of a license applies t plaintiff own ._:a �` :Without in any=way impu in "the -. .. - rs: Id. §4-52. •. :-.. ...:. -, ,,_y-:, • 4 infra. Sn g good faith .;; _of plaintiffs their.P or of a .,, .. rc c..•:. :.: . ._I,..� . .. u counsel,.we note that b -p'' iiT note 2 _ _ 25. Peoria Ord. supra note.l,�§4-4`7. . a• y "' ' K:�A 22. Young' Theatre's, 26. Id. The provisions relative to these inspec=fi==•° v.American Mini Inc.,`427 lions, as well as the investigation requirement,- reason,of the,.grandfather clause, the zoning 20-,.:The ordinanc•e provides for.a-maximum_ �n,`: ` '_,ly�' r.`, •' U.S: at 54-55 &nn. 6& 8, 96 S.Ct.at 244.4- provisions, if'valid,'could give plaintiff owners od_of_seventy-five-days before a license appli, 2445&:---n.fi&8(opinion of the Court);'id:at discussed in-Part VI=D of this opinion, rnfia,.a competitive advantage over prospective adult cant is informed of a final decision on. his 71 & n.34, 96 S.Ct. at 2452 & n.34 (plurality are as.follows: ' bookstore owners. Second,.to,allow plaintiffs license application. It further provides that•the - opinion); id.at 74-75, 80-81 &n.4,96 S.Ct.at The City Manager shall within five(5)days standing to assert the interests of prospective applicant be notified of the reasons for a delay S 2454,2457-2458&n.4 Powell,J., concurring); refer the copies of such application to the adult bookstore o ( g); Aerators or other affected rt- per that extends beyond forty-five.days. .Peoria a see id.. at 87, 96 S.Ct. at 2460 (Stewart, J., • Department of Inspections, the Fire the City sons who are not now before the court would Ord., supra note 1, § 4 47; see note 26 infra.. '} joined by Brennan, Marshall & Blackmun, JJ., • ment, the Police Department and City . be warranted only if the zoningThese time }provisions periods were presumablyfixed ,to • dissenting). Planning Department. - These departments , presented a real p and substantial threat to'"ro- . ` allow time for the inspection and investi 'ation '' =' • shall within. y ;inspect. the tected First AmendmentP g "' - - -- thirty- (30) da s freedoms. The record procedures we hold impermissible in Parts 23. 427 U.S..at 71 n.35,96 S.Ct. at 2453 at 2ri.35 premises proposed to be operated as.an adult is barren, however, of any facts indicating VI-C and VI-D of this opinion,infra. .Plaintiffs ~,~ h • (plurality opinion); id. at 84, 96 S.Ct. 2459 business establishment or in case of the Po- whether or not the distance requirements in'the have not directly challenged these time periods • -• (Powell,J., concurring). lice Department,conduct background depart- • zoning provisions might, when taken .,as a on the _ whole, have the effect of ecluding a_new' see no grounded t that theye thatae issue c ini this,adase �" meats shallof the applicant and all suchm depart- ...„ '' 24. See,e.g., Times Film Corp. v.City of Chita- meats make written recommendations `adult bookstore from opening in Peoria in any .=r' "' •go,365 U.S.43,51,81 S.Ct.391,395,5 L.Ed.2d to the City Manager concerning the premises' viable location. Serious constitutional-ques- 21. E.g., Times Film 3 (1961) (Warren, C. J:,`joined by Black, and the applicant's compliance: he mat-such , :lions would be posed if the effect of the rovi= CorprP• v. City 3 Chicago, ••: • Di• -• & Brennan, JJ.,•dissenting); Joseph ters coming within the jurisdi, of such "'lions were to p U.S. 43, 49-50, 81 S.Ct. 391, 394-395; 5 B� Inc. v. Wilson, 343 U.S. 495, 501, 72 departments. preclude new adult,bookstores. `•1.2d 403 (1961); see also Bantam Books, "_ Young American Mini Theatres, Inc.,,427 S._:_ __7, 780, 96 L.Ed. 1098'(1952); see also Within ten (10) days of receiving the rec- U.S.at 71 n.35, 96 1, 6 Sullivan,3. U.S. 84 n.10, 83d. S.Ct.9 Interstate Circuit, Inc. v. City of Dallas,-390 .ommendation of the aforesaid departments, S.Ct.at 2453 Theatres, (plurality 631, 639 n.10, 9 L.Ed.2d 584 (1963); id of 79 is?' <_ .' ,. - - -TT'c Rva zoo 0o cr.".o..,, ...•... -_ _ ___ _ _ - y 1214 619 FEDERAL REPORTER, 2d SERIES • • GENUSA v. CITY OF PEORIA 1215 Cite as 619 F 2d 1203 (1980) • tiffs have Standing to sue because they are was to insure that urban blight is retarded with no such justification for the inspection • (a) Name and address,including all alias- directly affected by the inspection require- by requiring that adult bookstores, at least, procedures, and they are consequently in- es. ment. They contend that the requirement, comply with city law: He further argued. .`='.' valid. = - • - (b) Written proof that the individual is at • •is an unconstitutional prior restraint on. that among the "deleterious effects" .on least eighteen (18) years of age. speech and an impermissible discrimination neighborhoods referred to in the preamble � D. -Investigation Requirement • against speech on the basis of its content. to the ordinance were those that might [11,12] The ordinance also requires that (c) All residential addresses for the past ,c'; the Police Department make a special in- three (3) years. • [9] As we earlier noted, defendants con- result from building code violations such as P P • ceded that Peoria imposes. no licensing re faulty light switches. Aside from:=our vestigation into the background of those (d) The applicant's height, weight; color P g • - whoa 1 for an adult bookstore`license.21 of eyes quirement on any bookstore except an adult doubt that the preamble is subject to such >`ci apply y s and hair. bookstore. Similarly,this special inspection an interpretation, there is nothing in the Plaintiff owners are subject to and have (e) The business, occupation•or employ- standing to challenge this provision. The requirement is imposed only on adult book- record to indicate that adult bookstores, as purpose of this special investigation, the ment of the applicant for three (3) stores and other adult uses; no ordinary a class, contain more faulty light switches city informs us, is to assure that those with• years immediately preceding the date bookstore is subject to it. Defense counsel or other violations than regular bookstores, ^_r, past records of certain types of misconduct • of the application, told us in oral argument that Peoria has as a class. We can hardly take judicial The adult use or similar business K,. are discovered and forbidden to operate (f) general building permit and inspec- notice that such is the case. • ?; adult bookstores3° The investigation is license history of the applicant; ton requirements that apply to all business [10] Peoria has, thus, failed to demon- • ;:. 4.. therefore simply a device to further provi- whether such person,in previously op- establishments, but Ft fat an ordinary book- strafe that the special inspection provisions '.:' sions of the ordinance that we find uncoil- erating in this or any other city or store that seeks to-open or to continue in further a legitimate interest "unrelated to .: stitutional in Part VI-F of this opinion, • state under license, has had such existence in Peoria need not under city law the suppression of free expression.":21 w. infra. Because the city has offered no jus- license revoked or suspended, the rea- be either inspected or licensed first. The .Adult bookstores are of course subject to tification-for the investigation other than son therefore [sic], and the business inspection requirements are, therefore, pri- the same lawful health and safety regula- the furtherance of an unconstitutional end; activity or occupation subject_to•such or restraints on speech that have as their tions of the city code that are applicable.to and because the investigation would thus action of suspension or revocation: operative distinction the content of .,the other business establishments in,,Peoria.' invade plaintiffs',privacy for.,no legitimate (g) All criminal or city ordinance viola= books sold in the bookstore. Bookstores Adult bookstores may not, however, be sin 4;.:: purpose, the investigation requirement via with one type of books must be inspected ` ` • fates the First and Fourteenth'_Amend= [ion convictions, forfeiture of bond YP P Bled out for special regulation unless the ---- and pleadings of nolo contendere•on • . before a license issues; bookstores with an- citycan demonstrate that such ,action _is - ments. , - _- �, - •- - all charges, except,minor traffic wio= other type of books need not be licensed or narrowly devised to further_a 'substantial' . . _ _`; 1: lations. ''' inspected. ; "�. �� ' E. • Application Information Disclosure Re`• - -.,•, - P . -. -.,,-. and legitimate state interest unrelated 'to . '`. ' - >.,:,{t.nt -3 F uirements i___. _ - q- (h) Fingerprints and photograph of the Defense'counsel argued'that the purpose censorship or the suppression of protected ;: :.y >s: . zs `-`"_• :'" 1. :.A plicant Disclosure Requirements:, applicant: ;:,- . of these special adult bookstore inspections expression.. The city,has come.forward _°_ 1;;;.- :- .Applicant _ ;" te« that his application is granted,denied or field city codes. and laws, § 4-49(0, prohibit any [13] The ordinance requires that^an,._ . (i) The exact nature of. the.adult use to :# _.1a plicant for an adult.-use license provide the be conducted_and.,the proposed place --.' for further investigation. Such additional in- licensee from.permitting anything to occur on ;;�• <?7:.-. followinginformation under oath: •;,; _. a - ,of business and facilities thereto..; ::4. • vestigation shall not-.exceed" an, additional licensed premises that is In vioIatiotf"of;Iaw; :• � Vz,�-_;". .. _ .... .. , :.ct.. thereto,• �`" thirty(30)days unless otherwise agreed to by § 4-59, and require that licensees submit'toa t q ;, =.. '; ',.-, Theatres, Inc.,427_U.S._-at 63-73,.96_S.Ct.__af___'_opinion encompasses`_the requirement of§`4•47 _ -the applicant. Upon the Conclusion-o€-such---- -police inspections "from time to time and at. h 2448-2453 (pluralityopinion); FCC v. Pacifica -that a license applicantgive-"relevant mfor= additional investigation,' the City Manager least twice a year" to determine compliance' .. :;, _ P PP ,_ - shall advise the applicant.in writing whether with the ordinance, § 4-60. . We address the F'J`' Foundation, 438 U.S. 726, 742-48, 98 S:Ct. mation and submit to "reasonable"-;examina_ ' - 3026, 3036-40, 57 L.Ed.2d 1073 (1978) (Ste- -lion under oath to further the task of the in- the application is granted or denied. '.--- constitutionality of these provisions in`]?arts- ""x " °Y t - - Whenever an application is denied.or"held VI-F and VIII, infra. . ;j". .yens, J.,joined by Burger, C. J., & Rehnquist; spectors and investigators. As the ends are for further investigation, the City Manager ji _a � J.); Farber, Content Regulation and the First _unconstitutional,the means are equally so. ' . shall advise the applicant in writing'-of'the 27. See United States v. O'Brien, 391 U.S.`367, YY`_ .;,; +.- Amendment: A Revisionist View, 68 Geo:L:J. _ reasons for such action. - _ 377,88 S.Ct. 1673, 1679,20 L.Ed.2d 672(1968);. _,. , _- 727 (1980). But cf., e. g.; Young v. American 30. The ordinance provides that:persons con-. _ Failure or refusal of the applicant to"give 'cf. Young v.American Mini Theatres, Inc.;427 -_'.v=_a,._,"; .Mini Theatres, Inc,427 U.S.at 73 n.1,96 S:Ct ,victed of certain crimes or found guilty of-of- any information relevant to the investi ation ..�-..g•.-ft 1'.. at 2453 n.1 (Powell,J., concurring); id.at 84- . -;-fenses that resulted in the revocation of other" g U.S.at 79-80,96 S.Ct.at 2456-2457(Powell,J., r i - of the application or his or her refusal or concurring). Like Justice Powell, we believe = _':;1"7. . 88,96 S.Ct.at 2459-2461(Stewart,J.,joined by types of business licenses may.not obtain an -failure to appear at any reasonable time and the O'Brien test is applicable in this context. -_7 ;;:(,. . Brennan,Marshall,&Blackmun,JJ.); Grayned adult bookstore license. ;.Peoria We-address Ord.,.supra .. • place for examination under oath regarding '.`F^ '-: v. City of Rockford,408-U.S.-104, 107, 115,-92 • ";. ;: i- : note 1,§4-49(c)&(d). the valid; said'application or his or her refusal to sub- _ S.Ct,,2294, 2298, 2302, 33-L.Ed.2d 222 (19721: 28. United States v. O'Brien, supra, 391 U.S. at "ty of these provisions in Part VI-F;"infra. The mit to or cooperate with any inspection or x. Police Dept. of Chicago v.Mosley,408 U.S.92, 377,88 S.Ct. at 1679. ,z ,.r.., :"ordinance also requires that the applicant for . investigation required by this chapter"shall 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Stone, an adult bookstore license reveal i atioti - • ,ause Peoria has offered no substantial ---. ,' •-constitute an admission by the applicant that Rest ;s of Speech Because of its Content: ' ' he or she is ineligible for such permit and ication for this content-based discrimina- y !.. :t-: . The ,iar Case of Subject-Matter Restric- that would aid authorities in c fining we need not address the issue of.whether = ;,_, whether the applicant has been ci__. _ d of shall be grounds for denial thereof by the -„ }.,,;$..T•; lions,Yo J.Chi.L.Rev. 81, 111-12 (1978). ;j_,:. any such offenses. Id: 4-48. The validi yo'f City Manager. the discrimination would have been permissible ' ' . • - - .. :'. tY - _.__ _ _ . . _ _ .. .. .. 1...,a ne,.....,s.ee.,oh,.«,.....,,..e th.*o c.,hc«o.,raoi ':=:_,.14.: • =•. 29. Peoria Ord.,supra note 1,§4 47. •The rele- the disclosure reauirements is addressed in 141U Inv r wr n v, Kr.rUKTKK, La SEKIES : 4,'; GENUSA v:"CITY OF PEORIA 1217 ,., (j) The names and addresses of all per- they invade plaintiffs' privacy without any cite as 619 F za 1203 (1980) sons holding any beneficial interest in legitimate justification, they are prohibited change, so we believe the corporate plain- (2) Prostitution, soliciting for a pros- • the real estate upon which such adult by the First and Fourteenth Amendments. tiff at least has a sufficient personal stake titute, pandering, keeping a place of use is to be operated, including but in the outcome of a challenge to the validity prostitution, patronizing a prostitute,: not limited to, contract purchasers or 2. Disclosure Requirements for Others of these disclosure requirements to support pimping,obscenity, selling harmful ma- • standing. sellers, beneficiaries of land trust or Who Have an Interest in an Adult '1 terial or having a tie' in the sale of lessees subletting to applicant. Bookstore [19] The limited information that will obscene publications to distributors,un (k) If the premises are leased or being The ordinance requires that information be pertinent to enforcement of the scatter der the laws of this state or equivalent • purchased under contract, a copy of of the same kind required of an'applicant zoning provisions will be provided to the.-- laws or ordinances of the United States: - such lease or contract.shall accompa- for an adult bookstore license must also be -g city by the application of the corporation or any other state or city, or any other ny the application. provided by"any partner or limited partner itself. There would seem to be no purpose crime or misdemeanor opposed to-de- other than harassment in requiring the indi- cency and morality. (I) A statement by the.applicant that he of the partnership applicant," "any officer "any - or she is familiar with the provisions of or director of the corporate applicant," vidual officers, directors, and stockholders (d) The applicant has held an interest in this Article and is in compliance with stockholder holding more than ten (10) per= to file separate statements or applications a license either under this Article,.Arti- them 31 cent of the stock of a corporate applicant," under oath. Requiring them to do so is an cle X of Chapter 16 of the Code of the At least one plaintiff will be directly affect- and "any other person who is interested unjustified priorrestraint and an invasion "City of Peoria, which regulates mas- of privacy. Accordingly,the disclosure re- sage establishments, or Chapter 3 of ed by a 4.71ling on the validity of these directly in the ownership or operation of the 4•• quirements as to officers, directors and disclosure requireiaents, and standing to at- business."32 Plaintiffs argue that these re- ' the Code o the City of Peoria which stockholders of corporate applicants are in- regulates alcoholic liquor and [said tack them is therefore present. quirements are invalid as prior restraints valid. and invasions of the First Amendment right license] has been revoked for cause: [14,15] Plaintiffs contend •that these provisions .are unconstitutional prior re_ of associational privacy. : ; F. Standards for License Issuance (e) The applicant, at the time of applies- straints on speech and invasions of privacy.. [17] We must first addressplaintiffs' The Peoria ordinance tion for renewal of any license issued " provides that"-a under this Article,would not be eligible They fall into two groups.: In the _first standing: There are no plaintiffs who`al- license shall issue to an applicant unless: group are those contained in subsections(a), lege facts,:that would place them in 'the (a) [T]he applicant is under [the] age of for such license upon a first application.: O " �'' (f) The operation as proposed by the have (b), (i), and 1 . "We do not. understand categories of partners, limited partners,'`or eighteen (18) years'or under any legal hcant if plaintiffs to contest the validity of sulisec- "any other person" who has an inters"stin = disability. _ P• permitted, would nott-have tion (b). The others, except_for the re- an adult bookstore. We are, therefore;` (b) The-applicant is a Person who is^not complied with all applicable laws,i'ia= eluding-but not limited to building, quired disclosure of all aliasea.in (a):are without jurisdiction to entertain challenges _ ;_ • -of good moral character and reputation - legitimately "related to the state-interest to these provisions. Portions of the_d_istrict ; I in the communityin which-'he or she ; health, planning, housing; zoning`and that underlies the zoningprovisions that courts judgment - - • -, fire codes of the City of Peoria.34 • :- ••-° =upholding or invalidating resides. ._ . . 4-1 1�; force a separation- of adult uses and are these provisions are vacated;and the allega- = •• (c) The applicant has been convicted::of , 20 21 We[ ]. do not understand plaintiffs . "'"= therefore valid under our decision'in Part V tions"as to these provisions are dismissed / any of the following offenses, unless to challenge the validity of subsection: �a %__'v-'- ( )of this opinion, supra -The-alias''disclosure for want of a justiciable case or controver-' - -- upon investigation the City .Manager Plaintiffs have standing to contest thet-:va� requirement involves an invasion of rivac s _. , --.P .,ri Y Y - finds that such convictions occurred at lidity of subsection(b). Counsel for defend=`-. not justified by_the.zoning. interest and:is '' . least four(4)years prior to the date of =ants virtually conceded in oral argument • not otherwise justified. It is therefore•-in- . [18] There- are, however, a corporate— the application, that the applicant has before:this court that this subsection is_in- : valid. • : ; plaintiff and a corporate officer.plaintiff _ who have:standing to challenge the disclo- • had no subsequent convictions and has valid, and we hold it to be so because-it :;;::` [16]_ The second'group of' disclosure'"re- sure requirements that apply to officers, shown evidence.of rehabilitation suf_fi- gives city authorities an overbroad"discre=_ , quirements includes subsections (c) through directors,-and stockholders of a corporate cient to warrant the public trust:_. _.,r tion to impose a prior restraint on protected ` (h), (j), and (k). 'The city has argued:that applicant. We have not been advised - v, (1) A felony under federal laws;or this regard The district court's judgment.in these provisions, like the investigation pro- whether the plaintiff owner that has sought :::,:-,,,-"..f ` the otherthis is affirmed. laws of. this or any state, -: - vision,are directed toward the goal of keep- and obtained a license is the corporate 33. Cf. NAACP v. Alabama, 357 U.S. 449,'78 (1958); Joseph Burstyn, Inc. v. Wilson,_. 343 ing anyone convicted of certain past wrongs plaintiff. If it is,its officers,directors, and S.Ct.1163,2 L.Ed.2d 1488(1958); Bates v.City U.S. 495, 72 s.Ct 777, 96 LEd. 1098 (1952); from operating or having any interest inan stockholders holding over ten percent of its - of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 - Kunz v.New York,340 U.S.290, 71 S.Ct.31Z, L6 80 (1960); Talley v. California, 0).62 95 L.Ed.280-(1951); Winters v.New 0York,(198) adult use. ..For the reasons stated in Part stock have already disclosed the informs- � U.S.u . so, 80 S.Ct. 536, 4 L.Ed.2d' 559 1960. VI—F of this opinion, infra, these provisions tion required under the ordinance. Never- (_ ThU.Sornhill hill ss-S.Ct. ss5, 92 L.Ed. 840 (.-736;_ 34. - `a Ord., supra note 1, §4-49. Thornhill v.Alabama,310 U:S.88: Ct:736, cannot be sustained as furthering the state ' ,eless, the license will have to be renewed, 18 84 L.Ed. 1093(1940); Schneider Jersey,_ • interest shown by'this record. Because �d the owners, directors, and officers may 35. e.g., Gooding v. Wilson,405 U.S. 518,. 308 U.S. 147,so S.Ct. 146,84 L.E,.. .;i(1939). 92 S.Ct. 1103,31 L.Ed.2d 408(1972); Coates v. - 31. Peoria Ord., supra note 1, §4-48. .. ;,._-` 32.:Id. . .--- •City of Cincinnati,402 U.S. 611,91 s.Ct. 1686, - - .. - • ..-.-- -.---... ..--.. ..- --.-..---- i/ri./, e . Clte as 619 F.2d 1203 (1980) • [22-25] Plaintiffs are subject to and by persons convicted of certain past crimes when adult uses are congregated The sel's contentions would legitimize the broad have standing to attack subsections (e) and or wrongs. Accordingly, 7 . ' g g y, plaintiffs may as- provisions in-.question have,nothing to do prior restraint on First Amendment free-. (f). Subsection.(e) is constitutional to the sert the interests of persons not now before -` =, - with the scatter zoning purpose of-the ordi- doms that'the ordinance seeks to impose,49' extent that the-licensings provisions of the . the court in their attack on the validity of ,,. nance and cannot be supported by reference defendants have failed. to produce such ordinance are found to be so, because it these provisions." 3 to that purpose. •. merely states that a license. shall be re- '''° P proof. The city is required, at the very '` Counsel for Peoria has argued that one of least, to demonstrate the existence of•a • The provisions in question may be sum- : e: newed according to the same standards un- t: marized as follows: anyone convicted dur- •: the deleterious effects caused by adult uses substantial and legitimate state interest der which a license may be issued. Subsec- ing the preceding four years of any felony, is an increase in crime,that those.who have that is unrelated to the suppression of free- tion (f), we think, is_ subject to the same any prostitution-related offense, any ob- committed past crimes or offenses are.more expression and that cannot be effectuated objection as the special inspection-require- scenity-related offense, or any offense "op - ` likely to commit them again, and that the by means '-that"impact less drastically on ments we held invalid in Part VI-C of this posed to decency and morality" cannot op- . prohibitions of the ordinance will, by keep- protected freedoms.d1 No element of the.. 1,1 opinion, supra. Only adult bookstores are erate an adult bookstore in Peoria; anyone ':, ing the past offender and the adult use required showing has been made. We of-. _ subject to the licensing requirement,so oth- who has ever possessed a Peoria massage a' separate, cause a decrease in crime-and firm the judgment of the district court er bookstores are not subject to this prior g ordinance violations. Nothingin : the J parlor or liquor license that has been re- =� holding subsections (c) and (d) invalid as restraint on their operations. Peoria must yoked for cause is also forbidden to,operate preamble or elsewhere in the slender record unconstitutional prior restraints on speech. enforce its building, health, safety, and fire " supports these contentions,and they are not Y� an adult bookstore in Peoria. The provi- codes in an evenhanded manner and cannot sions thus totally prohibit certain classes of '' the sort of which we may take judicial selectively enforce them against a bookstore `'' . License Revocation Provisions - Y g persons from selling in Peoria books that 4.• notice. We find nothing in Young v.Amer-Amer- because of the�colitent of the books that it are protected by the First Amendment. ican Mini Theatres, Inc., supra, to support [30-34] The provisions governing sus- .For the reasons stated in Part VI- y_` counsel's argument.39 Thus, even if we pension or revocation of an adult bookstore C [28] The freedom to operate a bookstore '' were to assume that proper proof of coun- license are reproduced in the margin.42 Be- supra, we hold the compliance require- • '.-it' meat unconstitutional insofar as it relates is unquestionably protected by the First �: • Amendment. Preservation of freedom of 38. See text at note 5 supra. v. City of St Paul,303 Minn. 201,227 N.W-2d to matters other than compliance with the ' 370(1975); Seattle v.Bittner,81 Wash.2d 747, expression requires protection of the means ''7'", • 39. Section 5-2-3 of the Detroit ordinance:that zoning provisions of the adult use ordi-" sal P.2d 126em( t CoSee also Vance-1 Univer • nance. ' -- - of disseminating expression. Lovell v. City sssr' was before the Court in Young provided as amusement Co., — U.S. —, 100 S.Ct of_Griffin, 303.U.S. .444, 58 S.Ct. 666, 82 follows: 1156; 63 L.Ed.2d 413 (1980); United States v The Mayor may refuse to issue a license for O'Brien, 391 U.S. 367, 388-89, 88 S.Ct. 1673; [26] Plaintiff owners are sufficiently-af- L.Ed.949 (1938); see Bantam Books,Inc. v. 8 •:: -, the operation of any business regulated by 1685,20 L.Ed.2d 672(1968)(Harlan,J:,concur-fected by subsections (c) and (d) to have a Sullivan, 372 U.S. 58, 64-65 n.6, 83 S.Ct: - -this article, and may revoke any license al- ring); Near v.Minnesota,283 U.S.697,51 S.Ct:r. personal-stake in the outcome of an attack 631, 636 n.6, 9 L.Ed.2d 584 (1963); .see also ready issued upon proof submitted to him of .625,7.5.L.Ed. 1357(1931):. • - - on their._validity, -even`'absent,.allegations,_Times Film Corp.•v. City.of Chicago, • =3 the violation by an applicant,or licensee;"his y go, 365 7 L.,R-.. _ •_ =agent or employee;within the preceding two -• - that licenses would"be denied`to an -'lain- U.S. 43, 56 n.3, 81 S.Ct. 391. 398 n.6 5 - ='".years,of any criminal statute of the State„or 41. united states v O'Brien, 391 U.S. 367, 377 Y P ' ' (1968); see note 27 supra. tiff ...owner : of anyordinance of this cit re Latin 'con • - because ,of the, provisions. L.Ed.3d.403 (1961) (Warren, C. J., dissent, - '-?_,*=%-i-: ' '_ ` Y g: Among other things,subsections,(c) and•(d) ing); of.Abrams v. United States, 250.U.S. 1w - trolling or in any way relating to the con- • - - - : - :p:i " •'� " 42. Peoria Ord., supra noted, § 4-50provides would make it more•difficult for.the owners 616, 630, ,40 S.Ct. 17, 22, 63 L.Ed. "1173 % ' struction;use or operation of any of es- P .._a t J tablishments included in:this article:;which .: •Any license issued for an adult use may be to sell their interests in their. adult book- (1919) (Holmes, J., joined by Brandeis, J., t _ evidences a flagrant disregard for the safety . revoked or suspended.by the City Manager if stores, would present.a continuing threat.of dissenting). We do"not understand the cit - ='•'•�-,- •- •-. or welfare of either the patrons,.employees, -. the City Manager shall find•,_-t_;�n -:;:••_;-.� loss of license in the event of.future convic- . to contend otherwise Y T"' or persons residing ordoing business nearby. (a) That the license[e]has violated any of the tion of one of the specified offenses,_and - -See Young v:American Mini Theatres,Inc„427 provisions of this Article regulating aadult [29] As previously noted, the only rec- _ .' *"- „ . U.S. at 91, 96 S.Ct. at 2462 (Blackmun; J., -:uses. . would subject the owners to.the investiga- _.• dissenting). The provision was not, apparent- y Ord support for the cit 's Position that-.it -. offenses The licensee in Sectiona committed4- 9 c)of any, . tive and information disclosure -require- Y P ly, at issue in Young, and majority in that listed 4�9(c) this Arti meats:earlier:discussed in Parts VI-D,and has a substantial and legitimate interest in :.'ins ;:case did not rule on its validity. Even if we cle. VI-E-1 of. this opinion, supra. Plaintiffs denying those convicted of the specified __3�.", . were to assume it valid,its.wording was impre- (c) The licensee hal.knowingly .furnished ; cise and readily subject to a narrowing;con- • .. false or-misleading information or:withheld therefore have Article III standing. - crimes or offenses the freedom to operate A' * L: struction. The Peoria provisions are.detailed g•" - - relevant information on any application for.' • an adult bookstore is found in the preamble" and precise;..they are not readily.subject to any license or permit required by.this"Aiticle ` . narrowin We think that the Detroit r [27] •We also believe that, as a discre- to the ordinance. That document recites.an - -: -;i-=. g• P ovi- or knowingly caused or suffered another_ to tionary matter, plaintiffs have standing to interest in protecting minors and city ` sion is ofno todefendants - help here. • furnish or withhold such information On his attack the provisions in subsections (c),'and neighborhoods from:the "deleterious ef-' :�'y- �• We know of no doctrine that permits.the or her behalf. • (d). The.provisions.present a.real and•sub- fects" of adult bookstores and other adult state to deny to a person First Amendment (d) The licensee has violated Article.X Of • • _ '" liberties other than the right to vote solely Chapter 16 of the Code of the City of Peoria stantial threat of chilling protected speech uses, which are said to result particularly because that person was once convicted of a ',=: regulating massage establishments or Chap- • 36. See note 28 supra, and accom an n text. -crit • ther offense. Defendants have cited ter 3 of the Code of the'City of ,tegu- p P yi g ,,v. Oklahoma, 413"U.S. 601, 611-14;93 ; : no' ity to this effect:=:•Cf. Perrine v. Mu- • lating alcoholic liquor. 37. See Young v-American'Mini Theatres, Inc., 2908, 2915-17, 37 L.Ed.2d 830 (1973). 1 -:nic... ..Jurt, 5 Ca1.3d 656, 97 Cal.Rptr. 320, The licensee shall be responsiuie cor the 427 U.S.at 59-60,96 S.Ct.at 2446-2447; Broa= 488 P.2d 648(1971),cert.denied,404 U.S. 1038, •s-=acts of his agents;'servants and employees . . -... '- •• eo c ram. ern �n r ra o.i ooe nnan�. w r---_-�_- -�--' 1 s'' Cite as 619 F.2d 1203 (1980) arty — , supra, with our holdings in Parts VI—E, supra;:and = y> _ elsewhere in this opinion, have standing to assumption that Peoria does not mean by .,_==we hold that plaintiffs have standing. to VII, infra, concerning information 'disclo- �_ -a contest subsections (b) and and further �•',•Y contest their validity. The district court this provision to enlarge the licensee's vice-, cold them bothiunconstitutionaland (d) afu sure and employee permit requirements. -i'-`.•: held the permit provisions unconstitutional rious criminal liability beyond traditional .priorThe parties have not specifically addressed in their entirety. We affirm that holding bounds, we see no problem with the provi- restraints on speech. Subsection (a), which allows ts speech. revocation ifh thelicensee h vi which the remaining provisions, and we see'no '' on the ground that they are prior.restraints sion. As we construe it, it is merely a legal • ed other provisions of the ordinance, is con- problem with them if they are enforced in ` •", on speech that are unrelated to any legiti- redundancy. . stitutional to the extent that other provi- conformity with this opinion. :� mate interest asserted by the city and sup- - `•sions of the ordinance are constitutional. ' "�• ported by the record. The applicable princi- The ordinance provides that the po- Subsection (c), which allows revocation if VII.• Employee Permit Requirement .- Y'. ples are stated in Part VI—E-1 and Part lice shall inspect each licensed business not the applicant furnishes or permits to .be ] VI—F of this opinion, supra. less than twice a year to determine compli- furnished any false information on a license fore being mployednn an adult bookstore a• ance requires that.be- 1.t' ance with the ordinance" Licensees are application form or an employee permit person must obtain an employee 5' VIII. Miscellaneous Provisions required to submit to these inspections. form is directly applicable to plaintiffs. Provisions governing the permit r quire- Standing to contest its validityis [37,38] The ordinance requires the For the reasons stated in Parts VI—C and present. ment are reproduced in the margin -The prominent display of an adult use license VI—F of this opinion, we hold this singling We find the provision constitutional, but we employee plaintiffs are directly affected_by q; note that it must be enforced in conformity . these provisions and, under principles stated '' and the availability during business hours out of adult bookstores for special equire- '; of employee permits and employee i by t he tion to be impermissible. The record shows offense by a licensee where the conduct was ,'' cation cards that are to be issued by the no basis for this special inspection require- solely that of employee, the penalty shall an adult use license under the terms of Sec- '. tion 4-49 of this Article. s"> t-. Peoria police department." For the tea- ment. not exceed afsan em ion of thirty(30)days if sons given in Part VII of this opinion, su- the City Manager shall find that the licensee Eves adult use employee had no actual constructive thelacknowledge of permit issued pursuant to this Article will terminate at the ' pra, the provisions relating to employee per- such violation and could not by the exercise expiration of one(1)year from the date of its 4' IX. Conclusion - mats and identification cards are unconsti- of due diligence have had such actual-or issuance, unless sooner revoked. °= For convenient reference, we include in constructive knowledge. Sec. 4-54. Revocation Or Suspension Of tutional. The license display requirement the margin a listing by section•number of The City Manager before revoking or'sus- Adult Use Employee Permit. = = = has no discernible impact on protected free- pending any license shall give the licensee at '°`ny adult use employee . doms and is not totally irrational.. We up- our rulings on the constitutionality of the least ten (10) days Permit may.be Yr various provisions It is our under- Y written notice of the revoked or suspended by the City Manager if `,;t hold it.charges against him or her and the o the City Manager shall find: standing that the parties do not dispute the . PPortu (a) That the ;N nity_for a public hearing before the City•Man= permittee has violated any of the [se The ordinance requires that the l e validity of provisions'in-the ordinance not ager at which time the licensee may present provisions of this Article regulating adult i censee must-ensure that his employees have directly addressed in this opinion. It is to evidence bearing upon the question: In such • uses- , -- cases, the charges shall.be specific and Present obtained an adult bookstore em to (b) The.permittee has knowingly furnished p yment bes againnoted that this opinion deals with writing. false or misleading information or '` permit". .In accordance with our holding in the constitutionality.of.the ordinance as it • fi:.�� withheld relevant information on any application.for • Part VII of this opinion, supra, we hold this applies to adult`bookstores. We have be 43. Peoria Ord., supra note I, §§ 4-53 & 4-54 any license or permit required by this Article provide: • r provision invalid. fore us no issue as`concer be the validity of: - Sec::4=53- Adult Use Employee Permit: -.. furnish or knowingly ithhold such information on Ili - a_$ -The ordinance requires that no licensee or the ordinance as it may er applied to other Any'peison,including a licensee,who actu- • or her behalf. �r :_, 1 ally engages in the providinglicperson associated with a licensee shall per- adult uses. - • _ services to the public in connection,goods or Any adult use employee permit.shall be -), = . n with the revoked by the City Manager.if the City Man-. __ mit anything to occur on licensed premises Affirmed In Part, Reversed In Part,And: adult use shall file an application for.an adult - ager shall find that the permittee has coin- • use employee permit with the City Manager_ - _matted-any of the offenses listed.in Section l,� On — upon a form c — _ that is in any manner unlawful46 the Vacated In Part.- Provided by the City Manager 4-49(c) of this Article. `.' 44. Peoria Ord., supra note 1, § 4-55. and shall pay a nonrefundable filing fee of The City Manager in revoking or suspend: _§ e as it relates to employee permits and' twenty-five dollars ($25.00) ,=4 identification cards; §4-57; and § 4-60. - for an original ing an adult use employee permit shall give 45. Id. §4-57. • application and ten"dollars ($10.00) for a re- the - ` The following provisions we hold cons require; tu= - . newal application to the City Treasurer who the permit holder written notice specifying - 46. Id. §4-59. a lice: § 4 115A; §payment as it applies to shall issue a receipt which shall be attached may withgrouin teds therefore(10 days of such revocation §4--45A; the provisions of§4 47 that require - to the application filed with the City Mana- or suspension file a written request with the 47.-_Id §4• -60• a license and the of a fee; § 4-48(a) get.. • except as it involves aliases, (b), (i), and(1)as i The application for �' City Manager for a public hearing before the those subsections apply to disclosure by appli an adult use employee City Manager at which time the 48. The following provisions we hold unconsti- • permit shall contain substantially the same maypermittee ee tutional:- the portions of § 4-47 dealing with cants; §4-49(a), (e), and the parts of(f)relat- information as the present evidence bearing upon the ques inspections, investigations, applicant coopera- king to compliance with§ § of lice and application for adult use tion- _ license, except for the names and addresses lion„and applicant interrogation; § 4(g), (h), as (c)and the provisions following subsection(d); of the owners of the real estate and anyThe City Manager may in his discretion § 4-55 as it relates to the display of licenses; leases or contracts concerning the real estate. conduct such hearing concurrently with a it relates aso aliases,e relate(c o applicant), (e), dis (os Ge; and f they tosdisclosureclreuby and §4 59.The City may issue an use hearing pursuant to Section 4-50 for the all of - 4 48 as it relates to by We hold plaintiffs without standing`--"ask • ::employeehCi permit Managerwithmin adult(21)daysus .:adult use license, unless it shall appear that corpoi facers, directors, and stockholders; following provisions: 4�13A, ( or' the application,unless twenty-one finds that -.• a joint hearing would prejudice thethe -_ followingoe applicant te would not have been eligiblefndsfor • v of the licensee or the § 4�i )0 (d),and (f)except as subsection 4 45B and C; and portions of§4�81 ate permittee in- to disclosure b p oived. (f) relates to compliance with the zoning provi- Y Partners, limited artners,'or sions; § 4 50(b) and (d): 6 4 ss• s A. other interPsrPri .,arenne - ---. ..,z Le* 1`L`LLntu. n�rVxT1,K 3d SERIES ' ,t: a ;'- W"; • TK'S VIDEO, INC v. DENTON COUNTY, TEX. 705 •�'` Cite as 24 F.3d 705 (5th Clr. 1994) ry an'- for the chemical ingredients and The affidavit accompanying the .. ,r'" 'i the g Ere. The denial of a downward plication provided a substantial;b.:; .n[ay have been negligence, but it did 1. Constitutional Law .4(3, 4, 6) _' • adjustuieni was not clearly erroneous.19 magistrate's idfindingofprobablea '-,.;'jstitute deliberate deception Or reek- Erotic nonobscene printed matter,films, - t �' "LThe application for the warrant and live entertainment are sheltered byFirst with the corrections sought by the;y'. - . ' �:_= 4., Refusal to allow withdrawal of guilty dants zz ;„uently'supports its issuance. " Amendment but enjoyless protection than . plea. ''.:a.,„. rr:: The affidavit reflected that Bella zest -,,'the foregoing reasons, we VACATE some other forms of speech such as political [7] Billa moved unsuccessfully to with- told a reliable confidential informer ;r:ti -- - sentences.imposed on Bills and Bellazeri- speech. U.S.C.A. Const.Amend. 1. draw his guilty plea on the ground that it and Billa would manufacture me'; `, `;le`REMAND for resentencing. was induced by the governments promise to amine at a laboratory behind Bi11a's}i { ; 2• Constitutional Law a90(3) drop the allegedly .groundless charges soon as they received additional _;;"' :•: _ w "Content-neutral time, place, or manner against his wife. On the day that Billa from Sun Scientific, Inc. To,.convin ^T�j ' o• s KEY NUMBER SYSTEM restriction" must be justified without refer- pleaded guilty his wife was dismissed from informer to invest in his operation, I., `.- T .. ence tow content of regulated speech, must be the indictment. The government responds us showed him a formula that a -e''ji Id- narrowly tailored to serve significant or sub- the .,- y=--::.. '-� that Bills has presented no evidence of a rate. In exchange for "'' r E . . stantial governmental interest,and must pre- . $800, B I";_• Plaintiff-Appellant, serve ample alternative means of community. quid pro quo but does not expressly den• y it. promised to deliver two pound's"of`n'�'�; ;_ .►: -:VIDEO, INC. phetamine. `' U.S.0 A Const Amend..,.[8] We have declined to hold plea bar- ''} '- ' The defendants complain that they;^� See publication Words and Phrases gains induced by the promise of leniency P ••€�DENTON COUNTY, TEXAS, : for other judicial constructions and def- omitted the fact that Bellazerius also';,' - - � '' toward a third person per se unconstitutional. - :.At -c, Defendant-Appellee. • .. the informer a list ofpurchased"cli= initions. L� Nonetheless,we recognize that they"pose a a„ - ,*r greater danger of coercion than purely bilat- that did not match the formula; the_f� ,: �; VIDEO, INC:, Plaintiff-Appellee,. 3. Constitutional Law a90,1(4) .• eral plea bargaining, and that, accordingly, was for one manufacturing.method`r'n :_'.x: Licenses a7(1) chemicals for another. We do not .,1::. County's 60-day license application.re special care must be taken to ascertain the voluntariness of that the inclusion of that informati'� l; ENTON COUNTY, TEXAS; guilty pleas entered in such ,,.• ._ view period for adult entertainment business circumstances."2° Where, however, the de- the existence of probable:cause to', .n :;:Defendant-Appellant. that evidence of methamphetaminei;;1„ zi. did not unduly burden First Amendment fendant previously affirmed the voluntariness ;ate'•Nos..93-1631, 93-5234. rights tofo adult businesses; regulation was of his plea and his factual guilt at a Rule 11 turing would be found. at the:, :tea,:44r:.:- -::.., ;-'. Equally meritless .is the• defendari not content based, and licensing entailed re= allocution, as here, we will allow vacatur of . -' " united States Court of Appeals, plaint that the affidavit failed,to;s1i , ^ --Iv,- ' viewing applications,performing background - -his plea only if he establishes that the gov- _ Fifth Circuit checks date on which authorities,obtaine "�? -'' - , making identification cards, and po- eminent did not observe a high standard.of good faith based upon probable cause to.be- criminal history.. In this context the%;.a- -1,-es.' - . June'20, 1994. • - , licing design, layout, and zoning arrange irrelevant. _ . " ments. U.S.0 A. Const Amend. 1. '" lieve that the third party had committed-a !"'u Denying Rehearing July 26, 1994: crime 21 :Despite the opportunity to do so,at Finally, 'the affidavit relates si4 . ''� �:. :r »--•_ 4. Licenses a22 from a. United Parcel Service:,,,' a b _a;=. ; •.a hearing on his motion,to withdraw.his;plea, delivered a package from Sun Sci ,ar' e , g,ht "., : ,County was required to maintain.status Billa made no such showing. Accordingly, P g ,,. ,- I:tilt book and video store brought_ac- g the day after the informer's.visit"-;, ". cIiallen ' county'squo while_reviewing license application:of • we reject this assignment of error: -d- ,.,... g licensing require- adult business which existed:when. county • „r agents that she previously had`iie a ;.;,. for'adult'businesses. The United "�5.• False affidavit to 15 such packages.over a 90- ia�y 'District Court for the Eastern-District adopted regulation requiring licensing _of The defendants maintain that this:" ; "• suchbusinesses. - _. - ;[9] The'defendants eontend that 11' 1CaI - - -- that ... - ,-.Paul N.Brown,J.,830-F•Su ;-335,_.-_- :'-- :----_----__-_-- :-_--. --- _._-- exas .PP P ys tion was inaccurate and ineomple: tiT' 'a,-some parts of challenged regulations 5- Licenses a7(1) evidence found on the Billa premises should had lived on the premises for onIy'• '+r .;r^• ded-store attorney fees,.'and appeals - - • -" Y have been suppressed because the undercov- only2 to 3 packages from Sun Sciea u. '`� County regulation requiring licensing of P i; „E --',taken..-..The Court of Appeals, Patrick adult businesses was not-deficient in failing er.agents deliberately or recklessly misled been delivered, and one package`••'s.'"'- is gginbotham J. held that: (1), county the magistrate in their application for a returned. -That the`agents failed]. ':'' ' o to include automatic stay penning appeal of g bile.processing s maintenance _ status administrative 'decision denying application search warrant. • We are not persuaded. the additional information from.'Lf1i t i!'x while application for, license f�- -r,- for license, where time provided for review 19. See.Havens (defendant's claim that his sole 22. See Franks v.Delaware,438 U.S:I54;Yl , ,ess existing when county adopted its role was to.store the precursor chemicals did not '98 S.Ct.2674,2684-85,57 L.Ed.2d 66T 1' .. - , on,but(2)remaining parts of district ing application was'not unduly restrictive and entitle him to a downward adjustment for minor arrairt is valid if; "when material ' lS r` " gorder expeditious judicial review was available; role in the offense). • -1,. �;1,, , were correct. On Petition for -subject of the alleged falsity or reckless. ,-• -,.• availability of expeditious judicial review ob= is set to one side,there remains sufficien-F.--l • 'g the Court of Appeals furthermissi- 20: United Stares v. Nuckols, 606 F.2d 566, 569 fits- • viated need for automatic stay.' • •(5th Cir.1979)•(internal quotation and citation - in the warrant affidavit to support a"..r^' -Original holding did not imprmissi- omitted).'•.- . -, probable cause...."). . .• .-,-sr t}rite county order,t0 meet constitu- 6.. Constitutional Law d+90.1(4) " re 21. Id.; accord, United States a Whalen, 976 F.2d - - :.i uirements. .�; `.: :�,;-?,-����=:_• Licenses «7(1)•:.. �=' 1346(loth Cir.1992); Marlin v.Kemp, 760 F.2d '=�'"t lied in part; vacated and remanded •• County could constitutionally require 1244, 1248 (11th Cir:1985). "` ' ;::c ad1 r:,.; disclosure by owners and employees of adult • :T : - Cite as 24 Fad 705 (5th Cir. 1994) entertainin usinesses of age,recent infrac- ment so longas.procedures could:."'•'---',-.- -• - ;¢easing decision, constitutionally regu- regulation fails to assure • tenance of the g , tions of usiness regulations, and re- lively measured and rested on ade� • :binder order by altering status quo of status quo while process application for • cent convic ns for some sexual offenses; tual bases either obvious by their' ,_- y • ;psiness license applicant who was_in a license by a business frog when the on effective date of order; implicit County adopted its regulation. disclosure requirement related to substantial ascertainable by reference to others _ :;a ess; government interest of•curtailing pernicious of law. U.S.C.A. ConstAmend. 1.;:;:. -.- ,;,g was rejection of contention that I side effects of adult entertainment business- • .;� ;. on in order rendered it facially invalid. [1] Erotic nonobscene printed matter, es. U.S.CA Const.Amend. 1. 12. Federal Civil Procedure a273T s films, and live entertainment are sheltered District court did not abuse.its ,.,': - _ ederel Civil Procedure 4 2743.1 ?. Constitutional Law a90.1(4) prevailedby the First Amendment, Mitchell v. Corn- tion by awarding attorney fees to adyi"_' ...Operator of adult peabusl orpurposes on ,, ,giant issue -on appeal for purpo of mission on Adult Entertainment Establish- Licenses a22- . . .tertainment business which successfully,:'i-.1 -,:: -,^,'"•••g entitlement to attorney fees, menus, 10 F.3d 123,-130 (3rd Cir.1993), but - County could constitutionally require op- lenged portions of county's licensure: :, ;. Court of Appeals concluded that coun- enjoy less protection than some other forms. plicants for license for adult entertainment ments. U.S.CA Const.Amend. 1..' F- - !d-not,prior to final licensing decision; of speech such aspolitical speech. Youngu P P 3; --'�tntioaally regulate adult businesses by American Mini Theatres, Inc., 427 U.S. 50, business to post sign on business premises 13. Federal Civil Procedure a2737, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 disclosingrequest for license and to disclose • .: ;{ - ..,.::7,g'status quo of license applicant in q To receive attorney fees, plaintiff&;,,-: ;,; •on effective date of county order. (1976). There is no contention that TK's request by advertising in local newspaper; be "prevailing party," that is; must.sal::: ".,;;_;;,.. • sells obscene pornographic material. Rath- notice requirements were not onerous and - er, TK's is regulated as an adult book and were not disguised censorship, but, rather, on significant issue that achieves some:o ., . _a benefit sought in bringing suit; p is ;8 Reich, Arthur M. Schwartz, Michael video store. they were typical of notices routinely re- revaffrl� `t l';,Gross; Denver, CO, for appellant in No. [2] We distinguish between regulating party must effect change in legal relatio ! l •g �__ quired in zoning regulations. •• U.S.CA •. -s12, 1.' wont Amend. 1. between the plaintiff and defendant:V".1=; • the content and regulating the consequence x �;..-rice S. Welch, Jimmy Edward of protected activity. City of Renton v. See publication Words and Phrases 8..Constitutional Law a82(3) for other judicial constructions and del ,e- ,ueh,Wham C. Arnold, Pamela A.Wells, Playtime Theatres, Inc., 475 U.S. 41, 46-48, initions. - ..•;:GaI..• +., ,nCounty Crim.Dist.Atty.,Dallas,TX, 106 S.Ct. 925, 928-29, 89 L.Ed.2d 29 (1986). Government cannot tax First Amend- �»`� p ' A content-neutral time, place, or manner re- r appellee in No. 93�1631. went rights, but it can exact narrowly tai- 14. Federal Civil Procedure a2737., i : striction must (1) be justified without refer- errence S.. Welch,.William C. Arnold, 1- ence to the content of the regulated speech; bored fees to defray administrative cost of Fact that adult entertainment Imamate diamilton,Koch&Knox,Dallas,TX,for (2)be narrowly tailored to serve a significant regulation. U.S.CA Const.Amend. 1. :.. , had not applied for license did not.p`:..''7 "S ��: :'`'t'in No. 93-5234. _ ,..- or substantial governmental interest; and(3) -:. ,. finding that it was `prevailing party-"( g°:' `. 9. Constitutional Law c=90.1(4) • d Reich, Arthur M. Schwartz, Michael preserve ample alternative means of commu- • purposes of awarding it attorney f _: T.. Licenses c>,7(9) tarred challenging county's licens 11- �, � Denver,.CO, Malcolm Dade, Dal- nication. Id for appellee in No. 9375234. ,,;: ', -Under the first City of Renton factor, the County's application`fees of $500 for quirements, where adult entertainme i_ ,, is '" Denton Countyorder mustjustifyits restric- each business seeking license for adult enter- ness was required to apply for;.li •'.•-l- = .from the United States District ��'�or the Eastern District of Texas. bons byreference to effects attendingthe order to continue operating. U.S.0 A: . . regulated speech. by tainment business and'$50 for each individual ;, ,tt, gal p ' ...The order, its awn Amend. 1. - . . ., Aity >. requesting license were tied to cost of rove•s- t 1:efore:GOLDBERG, HIGGINBOTHAM, combats pernicious side neffects.•,of disease, �"-• '`- adult businesses such as prostitution,disease, ` tigating applicants"and processing licenses 15. Federal Civil •Procedure'c'2737 rY 1 I MILIO M. GARZA, Circuit. Judges. P and, thus; were-hot a-tax on First Aniend= .. - _- , " street crime, and urban blight.. It doesnot meat rights.' U.S.CA Coast Amend:'1:%'= •District court did not abuse itsl.. 8 A'RI CK E. HIGGINBOTHAM, Circuit censor, prevent.entrepreneurs from market- T..,::7 tion by awarding to adult entertainment Pr- ',`f`:e:''. 'z"'-: ing,.or impede customers from obtaining _ --- -10. Constitutional-Law-«90:4(4) ness-$7,500 of $22,487.50 in-attorney -,, • : s•VIdeo' Inc. an adult book and video communicative material. The County's sego a"+ requested for successful challenge taps ,.;~ a'•"hued Denton County,-Texas, contend- lotion does not on its face regulate content:. Obscenity a2.5 - ty, c -,: ; = •,:.: i.;: of county's licensure requirements fo:,,:.,:', _its,_licensing requirements for-"adult" Rather,the regulation is aimed at the impact • County's regulations .concerning design businesses,even though business ass ,,- esses violate.the First and Fourteenth on the surrounding community. But there and layout of adult film and video theaters " constitutional challenges'and revail•'-• 4 `'t-, are also procedural limits to regulating even g P endments.l The. district court held sever at this lesser level of protection. were narrowly tailored to.substantial govern- only five of them.''U.S.CA Const.Am:.,'i.; 0-'-'ceasing requirements unconstitutional, . meat interest in preventing illegal and un- _ .. :9ai "` ^ In 215 PBS, Inc. v. City of Dallas, 493 sanitary activityin adult theaters and �eii:ttlem,upheld the others, and award- U.S. 215, 110 S.Ct. 596, 107 L.Ed2d 603 thus, did •sexual iolate •First Amendment. -�ON PETITION FOR REHEAR a .*' orney's fees,-830 F.Supp. 335. •,,Both (1990),Justice O'Connor,writing for Justices U.S.CA ConstAmend. 1. • 16. Constitutional Law a70.1(7.1)'.A.:, sand Denton County appealed_:We re- Stevens and Kennedy, and joined in the ' r a ' :contentions that the County's licensing judgment by Justices Brennan,"Marshall,and l+- 11. Constitutional.Law a90.1(4) Court of Appeals' prior holding. '�' -use•was.impermissibly broad and failed Blackmun, stated that content-neutral regu= . `• '' impermissibly rewrite county order 'r�'^ z '.rovide adequate procedural protection, lotionscontain adequate procedural safe- Procedures for issuing, suspending, or constitutional requirements, but, ratli�z. ' airig judicial review.. We.affirm except guards when (1) any prior restraint before revoking licenses to conduct adult entertain- •such rewriting to county authorities l ne.particular. We.find that the County judicial review of the licensing process is for - - ment businesses did not violate First Amend- merely held that county could not, per( ' S5'Th s Order of Denton County is attached as Appendix A. 11 ,- .�� rn VIDEO, INC. v. 1)P:N'1'VN COUNTY, TEX. 709 a specified brief f - •r - .�--^.^ Cite as 24 F.3d 705 (5th Cir. 1994) p period during which the lion. The County points out that it,_r. -`- status gtmaintained; and (2) there is attempted to close TK's; that be j ! Y '-w' ,"to commence operation without a •must be licensed is sibly broad. ��:•' during judicial review. Here we Denton County require cerise from nu- prompt j review after denial of a.li- regulation is content-neutral,it is not;oi`i: "'`''' .- tense. `'. the district court that a valid time merous ed.to.refrain from re ation d �' �` • t' •� persons associated with adult busi- urinel - <• _.within which the County can act car- nesses. The district court, however, struck tensing period. The district court re i. V '�''" II. TK's contention concluding that in 1 .•l e-,Implicit rejection of such required down licensing requirements for stockhold- • [3] TK's 'first charges that the Denton ' '.` ' gn„ licensing. Nor is this unduly restric- ers, limited partners, equity holders and ulation is implicit in a valid period for:' ' County order, which provides that a coon 4 r '" en the availability of expeditious judi- their employees, and property owners and -- tY a license. This is true as far as it •-'''•�v , official shall issue an operating license within t '''i.,t ' =g eew. A rejected license applicant has equity holders associated with adult busi- nesses qualified by the further limit t a ".` 60 days after receiving the application unless �,t�sithe 4r . •;durty.days to seek judicial relief before the nesses from the regulation. This exclusion is he discovers one of several disqualifying County must maintain the status quo:`}1�t ,,;'1of:the Director of Public Works be- not at issue and the regulation now extends agree that an applicant for a license'F- ,"p,. t+om al. National Socialist Party v. Vilonly employees facts, fails to provide adequate procedural PP to owners, clerks, and em to ees of safeguards? TK's argues that the county business when the Order was-adopted•�is'-„. ; ,." - of..Skokie, 432 U.S.43,44, 97 S.Ct.2205, adult businesses, corporations or directors of must have a deadline shorter than 60 days free to operate while its license is o-..,?',r ,- -,,,,-+,_,-- •, ' �,i�"53-L.Ed.2d 96 (1977). adult businesses and their employees, and Maintainingthe status ,, ' '• �- •'C.-do_es not answer the further question partners in adult businesses and their•err- and that it must not interfere with normal quo means ":,; ployees.' business operation during the application view that the County cannot re• `'l " • r'"^`` ' �.• ;,bf muc pleo the totallicensings i process Under the licensingprovision the County process. existing business duringthe licensin"" ° ; -_ a'tom late within the specified brief gg�. Under FW/PBS, the County must ensure cess. It is no answer that the Coun •`` •,, ifd'specifically whether the brief period Director of Public Works must approve a that any restraint before judicial review is not elected to do so. The absence,ot`- •' • iud'es completion of judicial review. De- license unless he finds an enumerated din straint internal to the regulation °'A,L`4 " `,,-•^' qualifying factor such as a prior adult busi- limited to a specified brief period. In Teitel gul tion is no mom r, --,,, ;-contrary suggestions in Justice Bren- q g ly than open ended licensing. "�'" " 4 , ;; i'• ness regulatory violation or a conviction for a "Film Co v. Cusack, 390 U.S. 139, 141, 88 P Businesses:- ., ' .�nstr opmion in FW/PBS, Inc. and some ' S.Ct.754, 755-56, 19 L.Ed.2d 966(1967) (per gaged in activity protected by:tlie :, •° , ."certainty in the language of Justice O'Con- certain sexual offense. curiam),the Supreme Court found that 50 to Amendment are entitled to more' tliaa�` • `.` 1.. &.opinion in the same case, we read the Licensing clerks and employees ensures 57 days is not a specified brief.period. .It is grace of the State. ':'" only persons who satisfybasic legal and k "-\„ me.Court to insist that the state must that g true that Denton County's orderplaced a 60- regulating `,��e 'i` ` a`fair opportunity to complete the ad- dayhygienic standards work in adult businesses. The order does not ad the...; limit on licensing • • '``` "�`"`jI The Count requires g procedures after re- problem. The order maintains�ttie � ��"'-� • ve process and access the courts y also re ulges that all adult bus ceipt of an application. •But the regulation.in quo pending judicial review for licensees - a it- 1'brief period. A"brief period"with- ness employees wear an identification card at Teitel was•content-based. The-ordinance in gsuspensionppGiaat P'" work. The Countysays that this-require- Mg or revocation., An-a - "., cli all'judicial avenues are exhausted Y q -Teitel also required administrators to review denied a license has a right to-de noikr64•'-" { i`' d'•be'an oxymoron. '- --- - ment permits it to monitor the work force of films before they could be shown,a relatively - - •' - ' • adult businesses and to ensure that only duly by the state district court and, by;the fzrn "' s objects that the order does not pro- easy task compared to licensing adult.busi- r= - authorized adults work in these enterprises. of the Order, filing an appeal stays 1, �i.,• automatic and.prompt,judicial review,or - nesses and the people who run them.-.-..Li- -- - While co orations reasonablymaybe tannin . entails reviewinga lications Sion of the Director of Public Works"""_,, automatic stay of an order -denying'a corporations g pp , per- f i_"• 44.1Ms "As we explained,the Orderprovides obliged to submit detailed business informa- forming background checks, making identifi- pending or revoking a license until fiiiai!:deo-' xp , sion by the state district court. =?;Bnr '. ' ,filing a notice of appeal to the state tion to obtain a license, the requirement that cation cards, and policing design,layout, and -• • - - - -, . . • f.,'siinf• owners and employees•disclose personal:in- TK's zoning arrangements. •We are persuaded was in business when the'Ord" wa tti:.,+,ct court of Denton County stays.:an adopted, its free speech activi „T ',', 'trative decision revoking or suspend- formation to County officials is more burden • that Denton County's order creates less sofa P P -_•; g I? some. The Denton County order requires • danger to free speech and requires a more suppressed pending review of_ its lice;':,, ' - ;. use. So the focus of TIt's conten- ". _ owners and employees to disclose only their time-consuming inquiry than screening mov- Plication by the County. ` -n Y y:,_„ ;'.is on the absence of a stay of an order ies. - We conclude that here- 60 da s°for ',;'Ymg a license. FW/PBS requires only a .age, recent infractions of certain adult busi- Y -[5] -TK's also-contends that=th ,a ` - " kph ness regulations, and recent convictions for actingon license applications imposes no un- t judicial hearing, a standard that the ' PP P deficient in failing.to provide.an•auto, :3c , � �... -.._ certain sexual offenses. The County says due burden. ,.- t.; meets by giving an unsuccessful license stay pending appeal of an administra^ : - - - that their information assists in making back- - [4] TK's also urges that the regulationcision denyingk� `: ^-isliccant 30 days to appeal to a district' g is an application for a-3i • ) 'ton County,, atrial de novo basis:' ground checks and'preparing identification invalid for a related reason. It urges that This argument is in essence a-twin;:,!€ - :--••°.. ••• • cards. ,'..., - availability of expeditious judicial review - Denton County fails to assure maintenance of contention that the status quo mustJie "' = ? :rfs Compelled content-neutral disclosure ..of •s.the'need for an automatic stay:'Na: - p . the status quo. The contention is that the tamed. We have concluded that,the 1 f '�`Socialist Part v. Vil e o Skokie, owner and•employee information•.can chill County cannot constitutionally shut down an cannot alter the status quo during ttie.!," ''• - :�� .U•S. 43 44 97 S.Ct. 05 2206 •53 protected expression. :See Talley v. Califor- existing business while its application for a lag-process. There is then nothings to:'t' _' • .•-��i�"mod 96 (1977' nia, 362 U.S. 60, 64, 80 S.Ct. 536, 538-39,.4 license is pending and that TK's was operat- except a denial of a.license, Stated�ano;'= • =-t'-=:. •• L.Ed.2d 559 (1960);:.NAACP v. Alabama ex • ing when Denton County adopted its regula- way;the issue is whether a business'm `' `•. _.- . - III• rel •Patterson, 357.U.S.449, 461-62, 78 S.Ct ~ tar - - - - 1163, 1171-72, 2 L.Ed2d 1488 (1958). This 2. The Order provides that 1411 decisions'of the denial of license to the district court o1 Detail, •-' countydirector of *tes A.public works become final County. We read this language as setting'a"':, j:��� •�", - --. - •: - _;f.:- chill could occur even•if suppressing partite-. within thirty (30) days." No one contends that within which an appeal must be lodged_' - .1sj''Tics urges that the County's list.of lar expression is unintended. NAACP, 357 this provision prevents an immediate appeal of a ' . :-U:;;�;rs ' • -.,ins associated with -its-business who U.S. at 461, 78 S.Ct. at 1171. We insist that • TK'5.VIDEO, INC. v: DENTON COUNTY, TEL711 countervailing state interests must further a five. In more le ,-a.: } Cite av 24 F 3d 705 (Sth Clr. 1994) sub al government interest. Buckley v. ends and means tic .,;,, �,� Pal U.S. 1, 64, 96 S.Ct 612, 656, 46 me ';ei:Lcontains specifications ue operation. After th�court's and this L.Ed.2d 659 (1975) (per curiam). This pro- Insisting on this fit of ends"-;''--'-''?,'-4 • previous upheld. Com- (ewercourt s judgment, however, Tg's must meet assures a level of sera ' ~= and`poorly lit viewing booths fewer requirements. TK s lawsuit.has al- tective skirt requires a"relevant correlation" or'."substantial relation" between the infor- �y a," ~� i • ' protected character.:of; ;;:_.�,and'unsanitary sexual activ- tered the relevant legal regime. ` `" T; See.FW/PBS, 837 F2d In Rhodes v. Steward 488 U.S.1, 109 S.Ct oration required and the government inter_ sluices regulation awayti z • .fro"m_,. g` and layout regulations ' est. Id ing it on business offak.ri �,• ��: Y 202, 102 L.Ed.2d 1 (1988) (per curiam), the :411 •.1 --• - govern- Court reversed an attorneys fees award af-. • �,,, nd:;to:a.substantialWe are persuaded that requiring owners 8 ` .•._.... ter a successful lawsuit to modify prison poli- and employees to supply about ''�'� `' - cies because one plaintiff had died and the their age and certainprior information [7] An applicant •r•', „."-. ;c a xt t': regulatory infrac- must post a sign E'• other had been released. It found that a lions and sexual offenses substantially relates disclosing his request.: -.- �'_, '-� "' ZAer,k requirements n the victory`.`could not have in any way benefited to the substantial government interest of cur- also disclose his re _ °` p g' p ' `"oiler,for issuing,suspending, either laintiff" Id. at.4 109 S.Ct. at 203- tailing pernicious side effects of adult busi- local newspapers. The e ` �4 resemble those in the 04. Similarly,in Texas State Teachers Assn nesses. The Denton County order does not these disclosure re air _distils. d y r demand disclosure of person- q emgnts� f See 2d at 05-06co These 109 S.Ct 486a 103 L.Ed Dust., �866 (1 89),7the ald information,comprehensive only informationsc person- down a requirement re • - ti - ` - ability to function responsibly notify property owners.w " "-• '_; `those.m FW/PBS, can be Court invalidated as vague a school regula- • P Yin the adultproposed • _SL'u';.-',...and business setting. thus of the ro osed en • ;. z_ •and rest their adequate lion requiring that meetings during non- • ' either,obvious by terms or school hours be conducted only with priorin . notice provisions that surviv:',i-, reference to other sources approval of the principal. 'The court suggest- �� The Seventh and Ninth Circuits have in- the district court ensure that,';-l,t,_ • i' � ` ed that this finding alone would not support validated disclosure requirements. In Genu- hors know about the,im'e�, ;:; x'..,_..� 1306• prevailing party status without "evidence sa a City of.Peoria, F.2d 1203 (7th adult.businesses.. Notice, to P� t Cir.1980), the court invalidated the required ing zoningregulation .o ' that the plaintiffs were ever refused permisl disclosure of past aliases is sappy, +�' 33;;;County„argues that the sion to use school premises during nonschool criminal convic- stantial state interest„s; hours." -Id. at 792, 109 S.Ct. at .e chance, lions, and ordinance violations as unrelated role of allowing effected;peiso,';__ ,-�° '•its discretion by finding to the•city's stated goal of preventing_adult nityto '',a+ni3tled: to attorneys fees: In Rhodes, the plaintiffs stood little chance, examine the ref iesa ;s'- - y, ti'-; -v Mississi 921 F.2d of benefiting from the changed policy. They businesses from congregating in onelocation, accuracy. These notice re;-il :,,”,•:, - y^-��"•�•' 'Id at 1215-19. . • rH ;�,r( r�991). ::To receive attor- would do so only if they returned to prison. onerous. Nor are they;dis' :=r- beThat chance was too speculative for the cad In Acorn Investments, Inc. v. City of Se: Rather, they are typical'of:no"`r-.c: ipla..moat,must a prevailing vivin plaintiff and nonexistent for.the,dead attle, 887 F2d 219,224-26(9th Cir.1989);the required in zoningre r' '`" thesplamtiff succeed.on.a g P • court • F.2dted a..shareholder disclosure suaded that the notice re o� 'ij- V' ' �' t'achieves some of the one. As a result,the lawsuit did not materi- • ally alter the legal relationship between the. rule. The city�wanted to'use the information ficiently tailored to the.re:. ,s.:� t"„"' sought in bringing'.suit: ' �'^ parties. A similar rationale explains Texas to-notify shareholders.of ordinance require- a- •::% _y L. ,; U.S. —,_=" 113., • •a'•i - -I,Ed2d_494 (1992).:-+A State Teachers, in-which the plaintiffs faded meets.and..to hold them legally responsible C:=.' ~- to show that the principal had ever withheld` for violations,although officers and directors " ''ester' +._ -, ;„' t•-effect:change in .the: [8,9] Government canno %'`= ermission for a free iii :'-As thes • __ _ not shareholders,. have legalg �Nc* . ._{- '" ' between plaintiff and de p.= g Plaintiffs_ .responsibility Amendment ri hts-but i;can" '' I.'" �1113 S.Ct. -at'572-73. may have been free to meet regardless'of,: ' for-businesses. The court found no logical tailored fees to defray a,„ , :Wit- '' -: their suit, it was uncertain whether success . connection between the shareholder disclo- re : Y_`•`'{t l: —.:- :significant issues on the merits would alter any legal relation= sure rule- and the. stated-_ gelation. Cox v.New-_:1 purpose_for.the 569 576-77.61 S:Ct.-762 ' •�' _ =_ ' Iegal relationshi to,the -sale_---- ------ -- --- --.------„•--- •,- • p information. Id. at 226.- - .. .�Ji,- .,,,. ` -�"":x�'.. "couut•invalidated licen- 1049 (1941). •Denton• ''Couny ti.�+_• `:"�a; 'for'stockholder5; limited In contrast to the plaintiffs in Rhodes and Genuses and Acorn are not apposite+ The business and individual'ie�� Texas State Teachers,TK's faces certain eet Denton County order outlines the ambitious to pay annual fees of 0sii, : ` ' ' �ldeis, and property own- , -• _ -- is co tion. First, TK s must seek a license to. agenda of curtailing negative side effects not lively. . The district$count ' J _. ,with;adult-businesses,• As continue operation. The original order, par= simply of clusters of adult businesses,:but of amounts tied to,the cost of'in � s invalidated the notice require tally invalidated by the district court,would each adult•business. Disclosure of owner plicants and processing licenses+ '_• �'_,, Property owners in close have required TK'suteri to seek equity h of and employee personal history might not-be - "� '` `Y•�" n, ',•'Po adult.businesses., ;We stockholders; limited'partners,'equity•hold tailored to locating adult businesses but it -� =D. ,.• .- '"Y�;�! on.a status quo provi- ers, and certain property owners, and to' ${z-�j - , . •... olden does monitor persons with a historyof re h: .....b's materially alter the notify certain neighbors at its business loca- gu- [10] We have upheld.-d• r' `w i` +j: s to thety. : lion. Unlike the plaintiffs in Rhodes, Tics- - latory violations or sexual 'misconduct who regulations3;.,; coon for adult film au d i? -..• would manage or work in them. These histo- See FW/PBS, Inc v. City ofD •� ' ';CO�tY urges that alid has. would have been subject to these unconstitu� ries are plainly correlated with the side!ef= 1298; 1304 (5th Cir.1988),•of ed, a• ''•r`ae; so the invalidation tional requirements with virtual certainty: fects that can attend these.businesses, the in part, vacated in pdTt, 49$ Ifi >" ' ' 4hed order has not altered any Second, the requirements that TK's.seek• _. regulation of which was the legislative objec- S.Ct.596, 107 L.Ed2d 603(1990y ? -= ,r•1, ' - sa_.-• ^_:This'ignores the reality licenses for certain persons and notify certain . ''' 'apply fora license to eontin- neighbors were not vague or optional,'but TK'S VIDEO,INC. v. DENTON COUNTY, TEX. 711 countervailing state interests must further a five. In more legalistic and abstract CI 24 Faa cos ismcu. 1994) :';County order contains specifications ue operation. After t al court's and this substan ivernment interest. Buckley v. ends and means are substantially Valeo, 9 S. 1, 64, 96 S.Ct. 612, 656, 46 Insisting on this fit of ends and m z z '.,tical to those.previously upheld. Corn- court's judgment, how „.., TK's must meet 659 (1975) (per curiam). This pro- assures a level of scrutiny appropriate S '•':'Y private and poorly lit viewing booths fewer requirements. TK's lawsuit.has al- tective skirt requires a"relevant correlation" �e , urgge illegal and unsanitary sexual activ- tered the relevant legal regime. protected character of the activities? rl ' • or "substantial'relation" between the infor- sluices regulation away from contenttJ/,'',adult theatres. See FW/PBS, 837 F2d _ In Rhodes v.Stewart, 488 U.S. 1,109 S.Ct. mation required and the government inter- ing it on business offal. '-.;�'. C 1304.. The design and layout regulations 202, 102 L.Ed.2d 1 (1988) (per s ), the ' �,:,, �wly respond to a substantial govern- Court reversed an attorney's fees award af-. We are persuaded that requiring owners B. :} ,.,�fal interest. ter a successful lawsuit to modify prison poli- We employees to supply information about [7] An applicant requesting a._hie -1:ci E E.and because one plaintiff had died and the their age and certain prior regulatory infrac- must post a sign' oh the business p - -` , other had been released. It found that a rep lions and sexual offenses substantially relates disclosing his request. An applicant•-:,;;;`., l The remaining requirements in the victory"could not have in any way benefited to the substantial government interest of cur- also disclose his request by adve • f '_In County order for issuing,suspending, either plaintiff." Id at.4, 109 S.Ct. at 203- oking licenses resemble those in the 04. Similarly,in Texas State Teachers Assn tailing pernicious side effects of adult busi- local newspapers. The district court uph s' ^''' nesses. The Denton County order does not these disclosure requirements,while s L j";'BS ordinance,which survived constit a v. Garland Indep. Sch Dist, 489 U.S. 782, demand comprehensive disclosure of person- down a requirement requiring applicanti i.i,a,allenge. See id. at 1305-06. These 109 S.Ct. 1486, 103 Lague 866.(1989), the information, but only information reflect- t. r ,ores, like those in FW/PBS, can be Court invalidated as vague a school regula- al property owners within a specified." ing ability to function responsibly in the adult dim of the proposed enterprise, The,;tavo y measured and rest on adequate tion requiring that meetings during non- business setting. notice provisions that survived challen .'`;; f'• " bases either obvious by their terms or school hours be conducted only with prior aV.',.ble by reference to other sources approval of the principal. The court suggest- L__ The Seventh and Ninth Circuits have in- the district court ensure that potential .:,'; - `:.• See id at 1306. ed that this finding alone would not support validated disclosure requirements. In Genu- hors know about the impending arrival-Lr `'o • prevailing party status without "evidence sa v. City of.Peoria, 619 F.2d .1203 (7th adult businesses. Notice.to others of. .ii7,; ` .' , IV. that the plaintiffs were ever refused permnschoo- Cir.1980), the court invalidated the required ing zoning regulation is supported by a'�. " sion to use school premises during nonschool -•l213]•. Denton County, argues that the disclosure of past aliases, criminal convic- stantial state interest, serving the,p s c r, 'et.court abused its discretion by finding hours." Id. at 792, 109 S.Ct. at 1493-94_ tions, and. ordinance violations as unrelated role of allowing effected persons an op..7• .,'As.'s was entitled to attorney's fees: In Rhodes, the plaintiffs stood little chance to the city's stated goal of preventing.adult nity to examine the request and • • :; .f nited States v. Mississippi, 921 F.2d benefiting from the changed policy. They businesses from congregatingY of in one location. accuracy. These notice re uirements are,. s •�i?", would do so onlyif theyreturned to prison. Id at 1215-19. q 609 (5th,Cir.1991). To receive attor- onerous. Nor are they disguised censor. --z;feeS, a plaintiff must be a prevailing That chance was too speculative for the sur-. . In Acorn Investments, Inc v. City of'Se- Rather, they are typical of notices rou•.,�,-/ it, that is,the plaintiff must succeed on.a one Plaintiff and stent.forthe dead, attle, 887 F2d 219,224-26(9th Cir.1989),the required in'zoning regulations. We'are. ,.•,.meant issue'that achieves some of.the one. As a result,the lawsuit did not materi-i court invalidated a. shareholder disclosure suaded that the notice re uu ements•'``area plaintiffsought . ally alter the legal relationship between the, q LL efit==the in bringingsuit: rule.. The city wanted to'use the information ficiently tailored to the regulator"ob •-- 'v., 'r,v. Hobby, — U.S. —, .-113•, parties. A Similar rationale explains Texas to.notify shareholders of ordinance require- _ - menu.and to hold them-legally responsible C. _- ri 566;`..572, 121 L.Ed2d.494 (1992): A State Teachers,-in which the plaier w faded. =�': • g party must effect change in the to show that the principal had'ever withheld` for violations,although officers and directors, [8,9] Government cannot tax `i" L� elationship between plaintiff and de-- permission for a meeting: As" the plaintiffs' g not shareholders, have legal 'responsibility Amendment rights,but it can exact .. '.• C, ": -it.' Id at —, 113 S.Ct. at 57243. may have been free"to meet regardless'-of for businesses:. The court_found no logical tailored fees to defrayadministrative � `' � "'y' - , their suit, it was uncertain whether success'. connection between the shareholder disclo- re +-y i, .8;1 s succeeded on significant issues on the merits would alter any legal relation- . gelation. Cox a New Hampshire,312_ v,.' altered its legal relationship to,the- -ship. _ - sure rule. and the__stated_purpose for the 569, 576-77, 61 S.Ct. 762, 765=66, 85 s, ;, = information. Id. at 226. The district court invalidated licen- : ; == 1049 (1941). Denton County requires�• Y In contrast to the plaintiffs ins Rhodes and- Genuses and Acorn are not apposite. The business and individual requesting a li�� quirements for stockholders, limited Texas State Teachers TK's faces certain re - • D to � g ,,,�. �''' ^!ers, equity holders, and property own- ' Denton County order outlines the ambitious pay annual fees of$500 and $50 - -F',b r: elation. First, TK's must seek a license to .;^ -L sociated with adult businesses. As continue operation. The originalorder,p agenda of curtailing negative side effects not lively. The district court found .these 144":,'' prtar- simply of clusters of adult businesses,.but of amounts tied to the cost of investi atin ythe court invalidated the notice require- have invalidated by the district court,would g .. _.• in regard to property owners in close have required TK's to seek licensure of each adult business. Disclosure of owner plicants and processing licenses. We :a,.•• - ,' ��'ty to proposed adult businesses. We and employee personal history might not be • ,; stockholders; limited partners, 'equity hold:. ' t --+; m turn, insisted on a status quo provi- ers and certain property tailored to locating adult businesses,•but-it -D. ' _ p p rty owners; and to I. :n=;��These holdings materially alter the notify certain neighbors at its business loca-: does monitor persons with a history of regu- [10] We have upheld design and,la.,'� `?4.11'nship of TK's to the coup ' - : latory violations or sexual misconduct who regulations for adult film and video th• �.- �' lion. Unlike the plaintiffs in Rhodes, TKs. would manage or work in them.:These histo- See FW/PBS, Inc v. CityofDallas, Er''Denton County urges that TK's.has would have been subject to these unconstitu-; 837 =-+a ' tonal requirements with virtual certain ries are plainly correlated with the side'ef-- 1298, 1304 (5th Cir.1988);aff'd in Part,., '•(' , =applied for a license, so the invalidation_ tY ; 5; l Part of the order has not altered any Second, the requirements that TK's seek fects that can attend these.businesses,:the in part, vacated in part, 493 U.S. 21 regulation of which was the Iegislative objec- S.Ct.596, 107 L.Ed2d 603(1990). .The:o:ter: �tiOmP T ignores the reality licenses for certain persons and notify certain ''-`TK's.must apply for a license to contin neighbors were not vague or optional, but 712 24 FEDERAL.REPORTER, 3d SERIES ,crf� _ , ;4 TK'S VIDEO, INC. v. DENTON COUNTY, TEX. 713 -`• Cite as 24 F.3d 705 (Sth Clr. 1994) • were prere es for operation. These'in- APPENDIX A APPENDIX A—Continued the secondary effect sexually oriented validated regulations did not resemble the ^i ,-.. U businesses; and STATE OF TEXAS . f` ' school rule in Texas State Teachers because, :, ; '-..�"`, WHEREAS,the Commissioner's_C,ourt de- WHEREAS, it is not the intent of the • unlike the principal's unstructured decision COMMISSIONER'S COURT FOR ; •3E: '}v'sS tO minimize and control these adverse Commissioner's Court to condone or legiti= DENTON COUNTY . �ii-.4 ° :.'effects and thereby protect the health, safe- mize the promotion of obscene material, and making process, they were neither indefinite � f� by their terms- nor discretionaryin their " `� 4 -y and welfare of the citizenry; protect the the Commissioner's Court recognizes that SEXUALLY ORIENTED BUSINESSES. r( '` '' application. TK's must meet these require- ORDER -' s= '' ,. -`*:atizens from increased crime, preserve the state law prohibits the promotion of obscene -.fvilii, ,7` =`guility of life;.preserve the property values materials, and expects and encourages state. ments to remain open. AN ORDER PROVIDING FOR L.7.0 i; .% -..'and character of surrounding neighborhoods enforcement officials to enforce state obscen- DentonCENSING AND REGULATION OF SErs.`t , „ i statutes against an such ill al activities County cites LaGrange•Trading UALLY ORIENTED BUSINESSES -.i° •..and^deter the spread of urban and rural tY g Y g Co. v. Broussard, No• 90-2306, 1993 WL UNINCORPORATED AREAS OF DEN .t` ;Ilhg7it; and • in Denton County. 188672, 1993 U.S.Dist. LEXIS 7281 (E.D.La. i. s• - Pursuant to the authoritygranted bythe TON COUNTY, TEXAS. • =_��,F G� � � �' • .y , "' .{_ HEREAS, it is not the intent of this Constitution and 243.001 et seq. Local Gov- May 25, 1993), in which an adult bookstore WHEREAS, there are sexually oriented:`,• challenged a zoning ordinance to remain at businesses in the unincorporated area:.of:- , - order to suppress any •speech activities pro- ernment Code of the State of Texas, BE IT its present location. The court upheld most Denton County and there is the potentialf_t: • " -tict d by the First.Amendment,but to enact ENACTED BY THE COMMISSIONER'S - • •llucontent-neutral ordinance which addresses COURT OF DENTON COUNTY, TEXAS: of the ordinance,- but t invalidated a special future businesses that require special super. rl•; . P requirementvision from thepublic safetyagencies of-the'• '." . ' SEXUALLY ORIENTED BUSINESSES ORDER ermit From this partial victo- g , _,�; `. - - s �,,,v L__.ry, the plaintiff sought attorneys fees. The county in order to protect and preserve the • - 7„ `Y_ _ .- health, safety, and welfare of the patrons--'' , INDEX TO ORDER court denied the request because the remai•n- 'I';on Title Page ing provisions would require the business to such businesses as well as the citizens of: •;.;• • County; and g move anyway. Id., 1993 WL 188672 at *4-5, •'�'=- -, Alf.- Purpose and Intent • 714 WHEREAS, the Commissioner's Coma '.- ` ;:-2 - Definitions 714 1993 U.S.Dist. LEXIS 7281 at *16. Unlike finds that sexually oriented businesses��are '13_" Classification • - -. 716 the plaintiff in that case, TK's benefits from frequently used for unlawful sexual activities; ;:. "a'. "• :t., License Required 716 its lawsuit. • . • ., -• including prostitution and sexual liaisons_nff:: 1K ': Issuance of License 718 :-' ,. ,.- -`tr:. �,::.. Fees _ 719 casual nature; and. :;. - s -t Tk.=7: Inspection. - -- 719 [15] The district court entertained a re- WHEREAS, the concern over s• .1-.; y'` - •- Expiration of License- ' 719 quest by Michael' Gross for $22,487.50 in transmitted diseases is a legitimate:health,: -9' G Suspension - 720 attorney's fees,but reduced the actual award- concern of the County. .which demands''.:-;'`.. Ii1 -` - • __- :�, ,, .,��_0•-.:�_.:.:Revocation �:,. . 720 3 -=.11• Appeal...:, . - ,-:- ::.720 to $7,500. Denton County argues •that •the` sonable regulation of sexually oriented... _ �, _. Transfer of License e nesses in order.toprotect the health��`. -`. ri-- - - 721 $7,500 is'unreaeonably high:given the degree N13•' ' 'Location of Sexually Oriented Business `: - -'-• - -- '721 of TK's success. In''p'articular, the County well being of the citizens; and s.,t I;:4 • Exemption:from'•Location Restrictions•`, •••�':' "- •'a'-'•i •722 notes that TK's asserted 72 constitutional WHEREAS, licensing is'a legitimate... #". 5«-x_. Additional Regulations for Escort Agencies •.,.::. --1 :•�•. _. _ ,_ •.::u,•-• __.. .:,722 reasonable means of accountability to e' ii:v.�, - •3,•316:: Additional Regulations for Nude Model Studios : --=, =.< • -;.::,:- 722 challenges to the order,but prevailed one only ;-„ + 17._ Additional Regulations for:Adult Theaters and Adult:Motion Picture 1 that o erators of sexuall oriented basin: gala 5 of them,.a 7%success rate, which might P Y T -4.-P-:' ti -' - - - - . - �� es comply-with reasonable regulations and 1 Theaters ... 723 suggest that$7,500 of the$22,487.50, or 33% ensure that operators do not knowingly'.K �� :3 �18 Additional. Regulations for'Adult Motels . • - :-. 723 of the requested fees, is too generous. TK's --�19 : Regulations Pertainingto Exhibition of SexuallyExplicit Films or - then• establishments to be used as places w, -v. Videos : • — 723 counsel was able and the Comity's counting illegal sexual activity or solicitation;p'an' s{ --s t�0 , Display of Sexually Explicit Material to-:Minors - - 724 fails to capture the suc•cess of this suit- We WHEREAS,there is convincing documa,' .`y.•, '= 21 Defenses - _ - = _ 724 do not think so, but even if_the award,is ed evidence that sexually oriented business v!-'-: '• . Enforcement 725 generous, it is not an abuse of discretion. es, because of their verynature have a'c.; 23 Severability " 725 ': ' '1 Time of Effect 725 - terious effect on both the existing Businesses lee_ - We affirm the district .court's carefully around them and the surrounding residenn, "--, . ,,_ crafted decree in virtually all respects. We - • .- f ' _ .,1_ . ....._ . _ -_ ...- ., areas adjacent to them, causinginci•: 1- ''' remand to the district court with instruction crime and the downgrading of prope r` "' .-•.' • - to enter judgment with the additional decla- ems, and • • "l'.t'�•�. '''• , •,'=tQRDER OF THE COMMISSIONERS . to-prevent the concentration of sexually ori: '1si..'- :COURT eeted. businesses within•the.county: The ration that until the order of the Director of x •_ _, WHEREAS, it is recognized that s- � - Public Works becomes final, an applicant for oriented businesses,due to their nature;ha4:- ` 'SECi.IA-1. PURPOSE AND INTENT.- provisions of this order have neither the pur-; a license in business on the effective date of serious objectionable operational charac�_`:5; pose nor. effect of im osing a limitation or. a)'It is the purpose of this order to rags- P g the Order cannot otherwise be regulated bytics, particularlywhen theyare locate•." '. f..:'' restriction on the content of anycommunica : . gul T sexually oriented businessesto promote the Order. ... close proximity to each other, thereby = $ie•1ealth safety, morals, and general wel- live materials, including sexually oriented - tributin to urban and rural blight and d,"'" ' s gu6 .of the citizens of the county, and to materials. Similarly,it is not the Intent-nor AFFIRMED in part,VACATED and RE- grading the quality of life in the adj'� ' `;" - '.blish reasonable and uniform regulations effect of this order to restrict or deny access 714 24 FEDERAL REPORTER, 3d SERIES •- , TK'S VIDEO, INC:-v-DENTON COUNTY, TEX. 715 - e•. Cite as 24 Fad 705 (5th Cir. 1994) r. ( `i,: \t r:to APPENDIX A- Continued (B) a state of dress ails to opaquely •APP IX A—Continued cal areas" or by "specified sexual a't, rl,+.,;intended primarily for purposes con- cover a human buttoc anus, male geni- by adults to sexually oriented materials pro- ties"; or • == ;i:- ,with faith,or for propagating a partic- tals,female genitals,pubic region or areola tected by the First Amendment, or to deny (C) films, motion pictures, video case..^-- liar'form of belief. of the female breast. • access by the distributors.and.exhibitors of slides,or other photographic reproduction " ' `"` . �0)`COUNTY DIRECTOR OF PUBLIC (17) PERSON means an individual, pro- sexually oriented entertainment to their in- which are characterized by the depictioiiiii • WORKS means the Denton County director Prietorship,partnership,corporation,associa- tended market. The promotion of obscene description of."specified sexual activiti' ,ublic works or his designated agent. tion, or other legal entity. -- material (not protected by the first Amend- or "specified anatomical areas." -r,__�_ -, :`:. • (18) PUBLIC PARK means a tract of land ment) is enforceable through separate crimi- - (11) ESCORT' means a person who, for (4) ADULT MOTEL means a hotel;iod,-:.. , :=deration, agrees or offers to act as a maintained by the federal, state, or a local nal sanctions under the penal code: or similar commercial establishment wlui •- -r.r:• government for the recreation and enjoy-, • companion,guide,or date for another person, (b) It is the intent of the Commissioners (A) offers accommodations to the pub' who:agrees or offers to,privately model ment of the general public. Court that the locational regulations of this for any form of consideration; provides " are promulgated pursuant to 243.001 et. seq. _ . patrons with closed-circuit television trans 1,,::;e or to privately perform a striptease (19) RESIDENTIAL DISTRICT means a • Local Government Code, as they apply to missions, film, motion pictures, video ig`- s,�t another •person. single family, duplex, townhouse, multiple. family or mobile home district. - •- sexually oriented business: • settes,slides, or other photographic rep . ),.ESCORT AGENCY means a business . SEC. 1A-2. DEFINITIONS. ductions .which are characterized by;,tli-'- - • ; ',;.tion who furnishes, offers to furnish, (20) RESIDENTIAL USE means a single depiction or.description of"specified ses `.'. ociadvertises to furnish escorts as one of its family, duplex, multiple family, or "mobile In this order: al activities" or "specified anatomical :'.."- ',,..:business purposes, for a fee, tip, or home park, mobile home subdivision, and c (1) ADULT ARCADE means any place to• eas"; and has a sign visible from the public ,,,er consideration. campground" use as a residence. which the public is permitted or invited right of waywhich advertises the avails, • ';� g •.`•3)'ESTABLISHMENT means and*in- (21) SEMI-NUDE means a state of dress wherein coin-operated or slug operated or ity of this adult type of photographic s� in which clothing covers no more than the electronically, or mechanically controlled stillproductions; ,'f�+des'any of the following. Y or r["s- m:•_, genitals, pubic region, and areola of the fe-' or motion picture machines, projectors, or (B) offers a sleeping room for rent.foz:' 1~-� the opening or commencement of any male breast, as well as portions of the body other image-producing devices are main- period of time that is less than 10 ho'a: y oriented business as a-new busi- is s.- covered by supporting straps or devices. tamed to show images to five or fewer per- or 4.;;�a:• -.'ess- + ': (22) SEXUAL ENCOUNTER CENTER sons per machine at any one time,and where (C) allows a tenant or occupant of a sl- ,� . • the conversion of an existing business, means a business or commercial enterprise; the images so displayed are distinguished or ing room to subrent the room for a_pl.,r� ether:or not a sexually oriented busi- o-�� • - that,as one of its primary business purposes, . characterized by the depicting or describing of time that is less than 10 hours.:; 1;;,.to any sexually:oriented business;- -of "specified sexual activities" or "specified (5) ADULT MOTION PICTURE'' lit,-s the:Addition-of any sexually oriented offers for any form of consideration: . ,.� anatomical areas," . '''e (A) physical contact in the form of mores ATER means. a commercial•establishm .f� � ,+�e§s.to any other existing sexually ori- nTrr: fling or tumbling between persons of the (2) ADULT BOOKSTORE or' ADULT .where for anyform of consideration` nr' - -1itgd business• •,I,-•• , UL , ,. . _..,_ opposite sex; or VIDEO STORE means a commercial estab motion pictures,.,video„cassettes, slides'"•: 1I �•the relocation of any sexually oriented "'' : : scaz. (B) activities between male and':.female,. lishinent which as one of its principal busi- :.similar photographic reproductions are - .',•.,,ess,' or •` . r.R'`" persons and/orpersons of the same sex, ;=; ness purposes offers for sale or rental.for' larly shown and are characterized byi r+ fit'fit`loca i `'' ..-• • any form of consideration any one or more_.of depiction or description of "specified- a location and place of business. =:.," ._= when one or more of the persons is.in-.a_ • is`'T,ICENSEE means a person in whose state of nudity or semi-nude. .--,.,- - the following: . activities" or "specified anatomical areas::Y, n „ • - 'o , • _. ++•-a,license to operate a sexually oriented (23) SEXUALLY ORIENTED BUSI-: (A) books, magazines, periodicals or other , . (6) ADULT THEATER means athe• •c +uss has been issued, as well as the NESS means an adult arcade, adult book printed_matter, or photographs, films, mo--- concert hall, auditorium; or similar coI..,v -. ;- ,-..— i f - ,:a,dual listed as an applicant on-the appli- store or adult video store, adult cabaret,. lion pictures, video cassettes or video re- 1 cial establishment which regularly Tea . .productions, slides, or other visual repre- persons who appear in a state of nudi =+ �oaF,for a license, on a person licensed adult motel, adult motion picture theater; ---'. - this act. • : ••.-• ;---•- adult theater escort a en nude model sentations which depict or describe "speed- live performances which are characterize! :.•. g �'� fled sexual activities"or"specified anatom- the exposure of"specified anatomical`., .: f{.S E MODEL STUDIO means any studio, or sexual encounter center.' = '_s.-: - ical areas"; or or by "specified sexual activities." =7where a`person who appears in a state (24) SHERIFF means the Sheriff of Den-' r (B) instruments, devices, or paraphernalia -- (7) APPLICANT means a person" :J -nudity.or displays "specified anatomical ton County or his designated agent. • --'_ . which are designed for use in connection must apply for a license bythis act. ''t" :�,Is provided to be'observed, sketched; (25) SPECIFIED ANATOMICAL AR ..-,.- "�����PPY t with `.`specified sexual activities." ;:.-.._:: (ti1�l;HILD CARE FACILITY means 't painted, sculptured,photographed,or EAS means human genitals in a state of. z- Ty depicted by other persons who pay sexual arousal, (3) ADULT CABARET means a night building used as a day nursery, children' ,`. `•or any form of consideration.: - • ' club, bar,'restaurant, or similar commercial boarding home,child placing agency or.otls ..•, •o:_ • . . :. (26) SPECIFIED SEXUAL ACTIVI- establishment which regularly features: =.'_r place for the care•or custody of,ey ,:- - ))NUDITY or a STATE,OF NUDITY. TIES means and includes any of the follow- .• • • (A) persons whoa ear in a state of nudi- under fifteen years of age.._ . °. - <': • 1-i in : '` -ty; :or - - .. --,_7 (9) CHURCH{:or PLACE OF;`;R-_--I ' )'the appearance of a human bare but- •<(A) the fondling or other erotic touching of - (B) live performances which are character- GIOUS WORSHIP means a buildin' -'-1:- -anus, male genitals, female'genitals, human genitals, pubic region, buttocks,• • 'f•+ +.,_bic•re on or female breasts; or ''•- '-.'' anus, or female breasts; }ir- ized by the exposure of specified anatomi- which persons regularly assemble for:.•'"` gi 716 24 FEDERAL.REPORTER, 3d SERIES ''':e `• a• .P.° ;;-w._. •lIt'b VIDEO, thu..v. DLN•1'uLv UuuNTX, 1.r:A. •I II �• • •;':3" �,�•:: ''`O'��,.', Clteav24F.3d705 (SthClr. 1994) • NDIX A—Continued • (2) All corporations, stockholders orb ``''du*aAPPENDIX A—Continued after the filing of pplication for the • (B) sex , normal or perverted, actual rectors of any sexually oriented business`„ t' 'Plie applicant for a sexually oriented sexually oriented bus license and remain or simulated, including intercourse, oral their employees. .,,Y a:},.�`} • ,ess license must be qualified according erected until the application has been ap- copulation, or sodomy; (3) All artners and limited artn 4,�" ° ' :' 'vibe provision of this order. proved by the county director of public any sexually oriented business and their.` ' : - '`: _" works. • (C) masturbation actual or simulated or a r-•(f)`If a person who wishes to operate a ployees.• '"- : " '�`° Everyapplicant for a sexuallyoriented. (D) excretory functions as part of or in- : :-•-•s;• ;-t ; = eijnially oriented business is an individual,he Cl) PP connection with any of the activities set (4) All equity holders of any sexually a`:, -•••''•,,--,,,_-_,sign the application for a license as business license shall give•notice of the appli- forth in (A) through (C) above. : ented business and their employees. ,,f.„ '-- ,int., If a person who wishes to operate cation by publication at his own expense in • '� :, oriented business is other than an two consecutive issues of a newspaper of (27) SUBSTANTIAL ENLARGEMENT (5) All real property owners, stockholdgrs.,:4- • •,,-,'t,•„ y eneral circulation published in Denton executive officers, corporation's, parts' --,,,1 •dual, each individual who has an inter- g of a sexually oriented business means the -'s = inter- County, Texas. The notice shall be rimed: limited partners or equity holders anelle ;;=est° the business must sign the application t3', P Hess b increase moin re than 25 or area ocerpent as ied by tthe floor hhe busi- olders and their employees which are-- ; - - • a license as applicant and shall be consid- in 10-point boldface type and shall includes Y P ciated with any sexually oriented bus a licensee if a license is granted. (1) the fact that a sexually oriented business area exists on February 5, '1990. F• ° u`' `- license has been applied for; (2) the exact requiring a license under this order. ° . The fact that a person possesses any (28) TRANSFER OF OWNERSHIP OR- e'-• '• '"' location of the place of business for which the (b) No person may work for:any s ,F y.-•:other valid license required by law does not a :.:., permit is sought; -(3) the names of each CONTROL of a sexually oriented business oriented business without having on his-=; ••-' . exempt him from the requirement of obtain- means and includes any of the following: her person at all times while at workr K' ` - asexually oriented business license. A owner of the business and, if the business is operated under an assumed name, the trade (A) the sale, lease, or sublease of the busi- appropriate identification card showing 8... *" .. : "erson who operates a sexually oriented busi-• name together with the names of all owners; L_ ness; • he or she is currently licensed. Such id- t:-` '';nessand possesses another business license fication shall be available at all times"f� "'.) -com 1 with the requirements and pro- names(4) if the applicant is a corporation, the (B) the transfer of securities which consti- 1 PY q P names and titles of all officers. Such notice ..tute a controlling interest in the business, inspection and shall be worn on the left a4,, . ,,vislgns of this order as well as the require- shall be printed not less than fourteen (14) whether by sale, exchange, or similar breast of said employee during working ;,'. • •- ents and provisions of the laws concerning ods.. r ' days after the application is filed with the •.e_arth& license. means; or ''��='_.• �.: .,- public works department. (C) the establishment of a trust gift, • (c) All potential employees and/or clerks a:r.•:" 53! S):.Each applicant shall attach two copies or • ^ t t•+ _- (k) Written notice of the application for a other similar legal device which transfers sexually oriented businesses must comply:? !it•recent photo to his or her application with Sec.1A-4(a),(b), (g), (h), 1A 6(b);1A;8;;-•• - Z• ''' sexually oriented business license shall be • the' ownership or control of the business; 4 - f{-` sent to all. owners of real roe 1 1A-9 -1A-10 `1A-15 1A-16 1A-17"1.A.48, property' lying except"for transfer by bequest or other _ t •. .f•;(i Each applicant for a b_usiness licensewithin one thousand (1000) feet of property . and not be in violation of Sec. 1A,5(a)(1;-(3), operation of the law upon the death of the •` -sbhll;aupon the filing of the application and person possessing the ownership or con- (4), (6), (8); or (10) before being issiieii'. �• :-- on which the license is requested. Such T- ent of the filing fee,place signs(at least trol. identification card to work at the business'; 1mcii.-x 36 •inches •in.size) which provide notice shall be sent not less than fourteen - Application forms will be provided by<fid•le; v>:,.:. (14) days after the application is filed with county director of.public works and the-d•: ,�•• •'''?°'cation and information specifically stat- the county 'director of public works. The SEC: lA-3. CLASSIFICATION. . :'�'•- reil• EXUALLY ORIENTED BUSINESS - ' - terminations of_compliance must be made1by.•;; , • notice of the application fora sexually orient- `" 'CENSE.APPLICATION PENDING and Sexually oriented'businesses are classified him within sixty(60)days from time of app r-,•. �.,. ed business license described herein shall be r": ..'' • - =w r date'on which the application=was filed. ' as'follows: cation• . : ::a _ _ given by posting such notice properly ad= - (1) adult arcades; .. ' • "" .v (d) An application for a sexually oriented fi; . • lettering'on the signs must be at least 1 dressed and postage paid to each taxpayer as ?%. -- :.,- ,t i 26..inches x 2 inches in size for each -';(2)'adult bookstores or adult video stores; business license must be made on-a=f ,,�.4 - - A. the ownership appears on the last approved _ (3) adult cabarets;__ _: - - provided by thecounty directorof:public on the •sign. The si s must be of county tax roll. .Each property.owner shall. Y ,. • s..- s: tigiwent--quantities to be placed-upon-the have fourteen (14) days from the mailing of(4) adult motels; -. • works. The application must be accop ,-..; . • vied by a sketch or diagram showing; .; P-I?e2�3';so as to identify it as being subject the notice to advise'the county director of (5). adult motion,picture.theaters• - '- d�proposed sexually oriented license. .:.It _ • - configuration of the premises, including,,r.,., �= . _- public works of a locational restriction under (6) adult- theaters; • -, be the duty of each applicant as to each Sec. 1A-13(a) or (b) of this order. `It is the • statement of total floor space occupied a}•- - (7) escort agencies; business.. The.sketch or diagram need nOt,y:•:• :.,o,R) calar application to erect said signs responsibility of the applicant for a license to • (8) nude model studios; and _ be professionally prepared but must,be ,,,,=;. ....„. t ug� the property's public road or high- send this notice. ; ;i;-,. • (9) sexual encounter centers. - - - drawn to a designated scale or dra•wn ;•t ;.- :fro la so as to be clearly visible from • public road or hi hwa If aproperty (l) An applicant for a renewal permit or marked dimensions'of the interior of:1:.,' highway. t . , ,• an existing business at the time of the pas-: re es to an accuracyofplus or minus,L4E -= _oes-not have a public road or highway front- SEC. lA-4. LICENSE REQUIRED AND P h sage of this •order is •not required •to publish DUTIES OF APPLICANT inches. Applicants Who must comply_w .tom••` Y, .." , then signs shall be placed'upon the Section IA=19 of this order shall subinit�s't - OBest •available right of way and upon the • • notice or meet the posting requirements.of (a) The following are required to be li- L�_; �oPe (i), (i) and (k) above. _. tensed: ._ - gr�meeting the requirements of Se Nit. „ .3. Y• One signshall be erected for each •'Din 1A-19. All locational requirements must,'F:•;' ' -''-''e hundred-foot increment of each public SEC. IAA. ISSUANCE OF LICENSE •:.(1) All owners,clerks, and employees,of a approved by the county director of pub'•..• ,'.l or:highway frontage on said property (a)-The_county director of public works sexually oriented business are required to be works within sixty (60) days from the tiine.`y '-Ming or any part thereof. Said signs shall shall approve the issuance of a license to an licensed to operate or work in said business. the application is filed. , u�,1'-. =•,:... "erected not less than fourteen (14) days applicant within sixty (60) days after receipt 718 24 FEDERAL REPORTER, 3d SERIES _`_ ': ? TK'S VIDEO, INC. it. DENTON COUNTY, TEX. 719 Clte as 24 Fad 705 (5th Cir. 1994) AP IX A—Continued (9) An applicant or the proposed establish_' \ 'jai APPENDIX A—Continued : only by making appli as provided in • of an applica ess he finds one or-more ment is in violation of or is not in complia ee•C j _.. ses or combination of misdemeanor of- Section 1A-4. AppiWn for renewal of the following to be true: with Section 1A-7, 1A-12, 1A-13, 1A-15,1A _` . • .'occurring within any 24-month period. should be made at least 60 days before the (1) An applicant is under 18 years of age. 16, 1A-17, 1A-18, 1A-19, or 1A-20. :,;`; : _ 'The fact that a conviction is being ap- expiration date, and when made less than 60 • (2) An applicant or an applicant's spouse is (10) An applicant or an applicant's spouse',-". ed shall have no effect on the tiisqualifi- days before the expiration date, the expira- overdue in his payment to the county of has been convicted of a crime: • 1_:, ' . • - won of the applicant or applicant's spouse. lion of the license will not be affected. taxes, fees, fines, or penalties assessed (A) involving: = s :to-A11 applicant who has been convicted or (b) When the county director of public ' ,, works denies renewal of a license, the a h against him or imposed upon him in relation (i) any of the following offenses as'`deb' vghose spouse has been convicted of an of- PP - to a sexually oriented business. The county scribed in Chapter 43 of the Texas Penat t • 12fence listed in Subsection(a)(10)may qualify cant shall not be issued a license for one year tax assessor shall make this determination code: :,fora sexually oriented business license only from the date of denial.. If, subsequent to and report his findings to the county director (aa) prostitution; - " c - 4-when the time period required by Section denial, the county director of public works of public works within sixty (60) days from (bb) promotion of prostitution; ''�'_� :-5(a)(10)(B) has elapsed. finds that the basis for denial of the renewal the time the application is filed. '•`'• •.- (d)"The license, if granted, shall state on license has been corrected or abated, the (cc) aggravated promotion of prostitution;?y~: �., personpersonsapplicant maybe granted a license if at least (3) An applicant has failed to provide in- (dd) compelling prostitution; its face'the name of the or to PP formation reasonably necessary for issuance (ee) obscenity; ` whorl►it is granted, the expiration date, and 90 days have elapsed since the date denial- of the license or has falsely answered a ques- ' '-,tile address of the sexually oriented business. became final. _ (ff) sale, distribution, or display of harmful-w ' lion or request for information on the appli- 1--;:'. The license shall be posted in a conspicuous SEC. 1A-9. SUSPENSION. • q PP material to minor; 2:%ve.';•! ' are at or.near the entrance to the sexually cation form. (gg) sexual performance.by a child "; - -. I,,< • The county director of public works shall (4)An applicant or an applicant's spouse (hh) possession of child pornography; ,-r, 3 2.; e• nted business so that it may be easily suspend a license for a period not to exceed has been convicted of a violation of a provi- read at any'time. 30 days if he determines that a licensee has: (ii) any of the following offenses as'de: '- sion of this order, other than the offense of _ ,f(e) It shall be the duty of the sheriff to (1) violated or is not in compliance with scribed in Chapter 21 of the Texas Penal : } , . repoitthe findings under Section 1A-5(a)(10) any portion of this order; • operating a sexually oriented business with- Code; • •. it- =' ` out a license, within two years immediately ;r,-;-, and?1A-5(c)above to the county director-of (2) engaged in excessive use of alcoholic preceding the application. The fact that a (aa) public lewdness; :.., lic works within sixty (60) days from the ;, beverages while on the sexually oriented (bb) indecent exposure; •- , ��, ' • ��..e-the application is filed. conviction is being appealed shall have no - sl•..�'.: business premises; effect. The sheriff of Denton County shall (cc) indecency with ., child; =="M -,~ - sic FEES. - -, (iii) sexual assault or aggravated sexual:s`•• `3``` • (3) refused to allow an inspection of the make this determination and report his find-- ggc �(a) The annual fee for a sexually oriented ings to the county director of public works assault as described in Chapter 22 of:flip.- Business license is $500.00. ' . -. - sexual oriented business premises as autho- within six (60) days from_ the time-the Texas Penal Code; - -"_=>i;• ~ rized by this order, ty y • -1e(b) Each individual applicant shall'pay a .. application is filed. '+. -: v ., - (iv) incest, solicitation of a child, or�`.x ' (4) knowingly permitted gambling by any _Q0:fee.with each application. boringa runawa child as described in CO`r ' = person on the sexual oriented business prem- (5) The premises to be used_for the sexual- Y y C:'iA-7. INSPECTION. >:. .?:; 1 oriented business have not been approved ter 25 of the Texas`Penal Code;' " Y x` '` ices; Y , _1: -- ....' . :• - 4�(a),A:n applicant or licensee shall .permit by the county director of public works as (v) criminal.attempt, conspiracy,.or soli.,; presentatives of the sheriffs department (5) demonstrated inability to operate or being in compliance with this order. Reports tation to commit any of the foregoing:og.'.•` i d,county public works department.to in- manage a sexually oriented business in a of compliance or: non-compliance with,this tenses; 4 ,'iivect the premises of a sexually_oriented peaceful and law-abiding manner thus neces- order must be completed b y the countydi �'�• - sitating action by law enforcement-officers: P Y .., (B) for which: ` _. - ,, . :_business for the purpose.,of insuring compli- -- rector-of public works within sixty (60)'days _ s ; --dice.with the law, at anytime it is occupied SEC. 1A-10.• REVOCATION •. (1) less than two years have elapsed since. ,. _„ P from the time the application is filed. the date of conviction or the date of release 63:;open for business. (a) The county director of public works 4- - shall revoke a license if a cause of suspension - (6) The license fee required by this order from confinement imposed for the conviction, �, (li) A person who operates a sexually ori- has not_been paid.. . _- _- whichever is the later date, if the conviction'`r.' • ented_ business or his agent or employee corn- in Section 1A-9. occurs and the license has :`� _ rbeen suspended within the preceding12 (7) An applicant has failed to comply with is of a misdemeanor offense; hits an offense if he refuses to permit a p , y lawful ins ection of thepremises bya re re- months. the requirements of Sec. 1A11(i), (j) or •(k) (ii) less than five years have elapsed sing P P •. •,: sentative of the sheriff's department at anyy pr. unless exempt under 1A-4(1).. :: -.' the-date of conviction or the date of release'• 1. p (b) The count director of public.works P from nfinement for the conviction,wlnchev= J • " • "'e-it is occupied or open for business. shall revoke a license if he determines that: (8) An applicant has been employed in a sexually oriented business in a managerial er1 he later date,if the conviction is of�a. - - t(c) The provisions of this section do not (1) a licensee gave false or misleading in- capacity 'within- the preceding twelve-'(12) felony offense; or - . . . 'r3 „ :.,'ply to areas of an adult motel which are formation:in•the material submitted to the • months and has demonstrated that he is (iii) less than five years have elapsed since :• gently being rented by a customer for use county director of public works during the unable to operate or manage a sexually ori- the date of the last conviction or the date of._, a permanent or temporary habitation. -application process; ented business premises in a peaceful and release from confinement for the last conic :SEC. IA-8. .EXPIRATION OF LICENSE. •(2) a licensee or an employee has knowing- law-abiding manner,thus necessitating action lion, whichever is the later date, if the con-. . 11'(a) Each license shall expire one year from ly allowed possession, use, or sale of con- by law enforcement officers. - victions are of two or more misdemeanor*, , • :;,the date of issuance and may be renewed trolled substances on the premises; -- 720 h4 rlal.M.L. . nr.rvnr.c,n, au or.nir.o .—y - r " Cite as 24 F.3d 705 (5th Cir. 1994) NDIX A—Continued effective. If the license was revoked inf. -a'.w, ;''APPENDIX A—Continued - sexually oriented • 'ness license, of a Subsection (b)(5), an applicant may not ' r` church or place of ;ious worship,.public (3) a li �or an employee has knowing- �••-(c)'''A person commits an offense "if he or private elemen.,._, Jr secondary school, ly allowed prostitution on the premises; granted another license until the appropriate • mouses or permits the operation, establish- Public park,residential district,or residential number of years required under Section 1A., ' �''' or maintenance of more than one sexu- (4) a .licensee or an employee knowingly ;, m�t, lot within 1,000 feet of the sexually oriented • operated the sexually oriented business dur- 5(a)(10)(B) has elapsed. �;s oriented business in the same buildin , °! •; ;y1y g business. This provision applies only to.the • SEC. 1A-11. APPEAL. ' renewal of a valid license, and does not apply ing a period of time when the licensees •.:i;L' cture, or portion thereof, or the increase pp y license was suspended; • If the county director of public works de-='•' ' - •af floor area of any sexually oriented busi- when an application fora license is submitted vies the issuance of a license, or suspends.- -. f`" building, portionexpired (5) a licensee has been convicted of an fix t:n?ssm any structure, or after a license has a ued or has been re- offense listed in Section 1A-5(a)(10)(A) for revokes a license, he shall send to the appli<= "tbereof•containing another sexually oriented yoked. which the time period required in Section cant, or licensee, by certified mail, return. • btdsuiess: (h) All locational requirements of this sec- receipt requested,written notice of his action. J tion must be approved by the county director 1A-5(a)(10)(B) has not elapsed; . -(d).For the purposes of Subsection (a), (6) on two or more occasions within a 12- and the right to an appeal. The aggrieved'•,-° , ,measurement shall be made in a straight the tune the application filedof public works within sixty ) days from party may appeal the decision of the county:... :`' o;without regard to intervening structures month period,a person or persons committed director of public works to a district court in.: - "= SEC. 1A-14. EXEMPTION FROM LOCA- .or-objects, from the nearest portion of the an offense occurring in or on the licensed TION RESTRICTIONS. this county on a trial de novo basis. Filings :: 1>��g or structure used as a part of the • premises of a crime listed in Section A- an appeal in a.district court stays the county`> - ._. • (a) If the county director of public works 5(a)(10)(A), for which a conviction has been premises where a sexually oriented business denies the issuance of a license to an appli- director of public works in suspending-or:: .,, - obtained, and the person or persons were • •.1s:conducted, to the nearest property line of cant because the location of the sexually ori- revoking a license until the district court '.`:.; 3;„. • employees of the sexuallyoriented business . :-.the premises of a church or place of religious ented business establishment is in violation L_ makes a final decision. All decisions of theI" • °worship or public or private elementary or St the time the offenses were committed; of Section 1A-13 of this order, then the county director of public works become final!. . - . ;secondary school, or to the nearest boundary applicant may, not later than 10 calendar (7) a licensee or an employee has knowing- within thirty (30) days. 1, PP ly allowed any act of sexual intercourse,sod- Y i"f-• '` fan affected public park,residential district, days after receivingnotice of the denial, file SEC. 1A-12. TRANSFER OF LICENSE','•_. `or y or residential lot. with the county judge a written request for omy, oral copulation, masturbation, or sexual amo (a) A licensee shall not transfer his license a For purposes of Subsection (b) of this an exemption from the locational restrictions contact to occur in or on the licensed premis- -h(e) to another, nor shall a licensee operate'- of Section 1A-13. es. The term``sexual contact"shall have the section,the distance between any two sexual- • sexually oriented business under the authori- oriented businesses shall be measured in a (b) If the written request is filed with the same meaning as it is defined in Section .1i., ty of a license at any place other than-tIie, county judge within the 10-day limit, a per- address designated in the application. --A`-'. straihght line, without regard to intervening 'structures or objects,from the closest exteri- mit and license appeal board shall consider (8) a licensee is delinquent inpayment to SEC. 1A-13. LOCATION-OF SEXUALLY-, „ the request. The county judge shall set a drwall of the structure in which each busi- date for the hearing within 60 days from-the the county for hotel occupancy taxes,ad valo- _ •- ORIENTED BUSINESSES. -' -"less is located. rem taxes, or sales taxes related_to the sexu- ' -: date the written request is received: •`A all oriented business. . .--• (a) A person commits an offense if he::•o _. r y _ =: (f).Any sexually oriented business lawfully board shall consist of five residents of Den- (c) The fact that a conviction is being ap- erates or causes to be.operated a sexnall�' ton Coun one from each of the commis operating that is in.violation of Subsections tY� oriented business within 1,000 feet of: , ` sinnersprecincts as appointed bythe' re-. pealed shall have no effect on the revocation a:(4,(b), or (c) of this section shall be deemed PPP -- of the license. ",�;._ •.(1) a church or place of religious worship.cr.._ °a nonconforming use. _Such use will be per- cinct commissioners and one appointed by (d) Subsection (b)(7) does not apply V to •-(2) a public or private elementary or sec` initted to continue for a period not to exceed the county judge. Each board member will :,: serve a one (1)year term,with the chairper.- • adult motels as a ground for revoking,the ondary school; " -- - ,-,R.`:r #one year, unless sooner terminated for any ,rrid �- �� �:•- of the board being appointed by a major- license unless the licensee or employee know- (3) a child care facili ?reason or voluntarily discontinued for a tY; sonity vote of the five (5) member board.,j�. in 1 allowed the act of sexual intercourse, `='` "f ►' 4:-.;,Pe`iod of 30 days or more: =Such noncon- g y (4) a boundary of residential district as. -;;,::i (c) A hearing by the board may proceed if- sodom oral copulation, masturbation.-or ., -( forming uses shall not be increased, en- at least three of the board members are sexual contact to occur in a public place-or -- • .. larged, extended or altered except that the (5) apublic ark; ,�, present. The board shall hear and consider. P - -•�:,: . .- , '-'�ri'se may be changed to a conforming use. -If within public view." : - evidence_.offered by any interested person. (e) When the county director of public (6) the property line of a lot devoted to a- * two or more sexually oriented business''are The formal rules of evidence do not apply:_ works revokes a license, the revocation shall residential use as defined in this order; or-.. .i h- :<•,,wltuin 1,000 feet of one another and other- - (7) another sexuallyoriented business., ;_wise•in a permissible location, the sexually (d) The permit and license appeal board _- ma in its discretion ant an exam`tion, continue for'one year and the licensee shallY grant P - not be'issued a sexually oriented-business which does not have a common entrance with _ :; oriented business which was first established from the locational restrictions of Section. - ; 2* :_and continually operating at a particular loca- 1A-13 if it makes the following findings: ` license for one year from the date revocation ;;, became effective. If, subsequent to revoca- (b) A person commits an offense if he': , -tion is-the conforming use and the later- established business es)as nonconforming. (1) that the location of the proposed sera- tion,the county director of public•works finds causes or permits the operation, establisfi-. - ( ally oriented business will not have a detri •that the basis for-the revocation has been- ment, substantial enlargement, or transfer of' f, •- '• (g) A sexually oriented business lawfully mental effect on nearby properties or 'he corrected or abated, the applicant may.be ownership or control of a sexually oriented •1 operating as a conforming use is not ren- contrary to'the public safety or welfare;:'2': '-'• granted a license if at least 90 days.have business within 1,000 feet of another sexually •';dered a nonconforming use by the location, (2) that the granting of the exemption will elapsed since the date the revocation became oriented business. - .. :. ' subsequent to the grant or renewal of the not violate the spirit and intent of this order; IZIL La rr.LnnH,• nr.ruiti.K, sa i..tc.u:6 ,• - ,hy - i110 v1.u.nu, ii . v. ua...ivi, vvv..+i, - --• • t ',.,;, Cite as 24 F.3d 705 (5th Cir. 1994) DIX A—Continued • (b) A person under the age of 18 - ` ' t• `` APPENDIX A—Continued (4) It is the duty of�owners'and opera (3) that ocation of the'proposed sexu- commits an offense if he appears in a state''o ' t is,or..subrents the same sleeping room tor of the premises sure that at least r ally oriented business will not downgrade the nudity in or on the premises of a nude modem',,- ' one employee is on duty and situated in each property values or quality of life in the adja- studio. It is a defense to prosecution under,-, , s j For purposes of Subsection (b) of this manager's station at all times that any pa- cent tron is present inside the premises. areas or encourage the development of this subsection if the person under 18 yew 3_ n t : ciaon,the termsand"subrent"mean urban blight; was in a restroom not open to public view of ` ' permitting a room to be occu ied (5) The interior of the premises shall be �-q '' `°�.fie•"act of P (4) that the location of an additional sexu- ._ persons of the opposite sex. ` ` -for-any form of consideration. configured in such a manner that there is an ally oriented business in the area will not be ``' :-, 't. : 1A-19. REGULATIONS PERTAIN unobstructed view from a managers station (c) A person commits an offense if he .`, -. ..- SEC: PERTAIN- contrary to any program of neighborhood pearsnudity knowingly 1VG TO EXHIBITION 'OF SEXUALLY of every area of the premises to which any conservation nor will it interfere with any in a state of or knowin 1 allows v' ,s• ..---- another to appear in a state of nudityEXPLICIT FILMS OR VIDEOS. patron is permitted access for any purpose efforts of renewal or restoration; and PP in a>r • x • excluding restrooms. Restrooms may not area of a nude model studio premises which,''' 3 A''''(a) A person who operates or causes to be g (5) that all other applicable provisions of ;z�,.� contain video reproduction equipment. If this order will be observed. can be viewed from.the public right of way .,. :,operated a sexually oriented business, other '4}-. }ian an adult motel, which exhibits on the the premises has two or more manager's (e) The board shall grant or deny the ex- (d) A nude model studio shall not place off,.-,;:. •• w,,:: , stations designated, then the interior of the permit a bed sofa or mattress in anyroom4'` •.-:; 'Pre m' es in a viewing room of less than 150 premises aemption by a m joritty vo eajority vote. Failure shall result in denialo reachof the on the premises, except that a sofa may-ii ;cti `square feet of floor space, a film;video cas- ner that th ebise canun unobstructed view ed in such a aof t3-' ` - "'"Isette,.or other video reproduction which de- exemption. Disputes of fact shall be decided placed in a reception room open to the public.- 's= r each area of the premises to which any pa- '-.- i—.,f .icts specified sexual activities or specified tron is permitted access for anypurpose on the basis of a preponderance of the evi- SEC. 1A-17. ADDITIONAL REGULA=k<; ,;anatomical areas, shall comply with the fol- dence:.'Decisions of the permit and license TIONS FOR ADULT THEATERS ANDS; ��• from at least one of the manager's stations. -- are wmg requirements: The view required in this subsection must be court of this county.o nty. Appeals from the per- ADULT :YIOTION PICTURE THEATERS . -7�-4`(1)jUpon application for a sexually orient- lthe of sight from the manager's mit and license appeal board,must be made (a) A person commits an offense •if hem 4`e business license, the application shall be station. tViewing booths must be separated in writing to a district court of this 'county knowingly allows a person under the age of_r ` a accompanied by a diagram of the premises within thirty (30) days from the date of the 18 years to appear in a state of nudity`in or Tom: , . z wog a plan thereof specifying the location at least twelve (12) inches from the exterior on thepremises of an adult theater or adults'=" ':' walls of any other viewing booths by open fmal decision of the appeal board. After .;ofl'one or more manager's stations and the _ thirty (30) days, all decisions of the permit motion picture theater. ::' . 1itl,u, location of all overhead lighting fixtures and space. and appeal board become final. (b).A "person under the age of 18 years '; , d signating;any portion of the premises'in "(6) It shall be the duty of the owners and P P operator, and it shall also be the duty of any (f) If the board grants the exemption, the commits an offense if he knowingly appeals.1 _ wh cti atrons will not be permitted. A=man= exemption is valid for one year from the date in a state of nudityin or on the remises'of ''' -- agefsstation may not exceed 32 square feet agents and employees present in the premis- of the board's action. Upon the expiration of an adult theater or adult motion picture"thy ``' '"o•floor,area. The diagram shall also desig- es to ensure that the area specified in Sub- P ,£ .,e+, y -'a ..:.h section''(5) remains unobstructed 'by any an exemption, the sexually_oriented business ater. • -'�-` < '�• �s� .��nate•the place at which the permit will bedisplay-racks or is in violation of the locational restrictions_,of doors, walls merchandise, (c) It is a defense to rosecution•-unda '" conspicuously posted, if granted. A profes- p •_`_' other materials at all times that any patron is Section 1A-13 until the applicant applies for • 'z.- '- :,onally prepared diagram in the nature of an and received another exemption. Subsections (a) and (b) of this section`if;the r.: . present in the premises and to ensure that P person under 18 years was in a restroonm not '£ ;engineer's or architect's blueprint shall-not nopatron is permitted access to any area'of (g) If the board denies the exemption, the - t tielfequired; however each diagram should' open to public view or persons of the opp! •,;�:_. • the premises which has been designated,as applicant may not re-apply for an exemption � ,__; _ �,,etoriented to the north or,to some designat- = `' an area in which patrons will not be permit: site sex. >• ,.... .. ,-,., ,=�. until at least 12 months have elapsed since 4 l w=t Setrstreet or object and should be drawn to:a the date of the board's action. •-• - SEC. 1A-18. ADDITIONAL" REGULA,,.; - =designated scale or •with marked •dimensions ted in,the application filed pursuant to Sub TIONS FOR ADULT MOTELS. section of_this section. • -:• (h) TlieJ grant-of an''exemption does not -, ,�A, ",sufficient to show the various internal dimen- - exempt the applicant from any other provi- :.(a) Evidence that a sleeping room:ins ,-,', 5'=-, sions of all areas of the interior of the prem- (7) The premises shall be equipped with sions of' this'order other than the locational hotel,motel or similar commercial establish-'•* ;. ~•; Ises -to an accuracy of plus or' minus-six overhead lighting fixtures of sufficient inten restrictions of Section 1A-13. = -"•"' ''4 ` ;`inches. The countydirector ofpublic works to illuminate everyplace to which.pa- SEC. has been rented and vacated twor•or::., ' sity. , P SEC. 1A-15. "ADDITIONAL ` REGULA- more times in a period of time that is less -I;' 'ray waive the foregoing diagram for renewal trons are permitted access-at an illumination TIONS FOR ESCORT AGENCIES. than10 hours creates a rebuttable presum! - -. ,application if the applicant adopts a diagram of not less than one (1.0) footcandle as mea] (a) An escort agency shall not employ any tion that the establishment is an adult motel• ,,- "tha$was 'previously submitted and certifies sured at the floor.level :- : ..'; • person under the age of 18 years. - ' and -that term is defined in this order_ t.�-•,p, -.that the configuration of the premises has (8), It shall be the duty of the owners and ) $� ot'been'altered since it wasprepared. (b) A person commits an offense if he acts �{t� A person commits an offense if, as the;'` fr_.;,- operator and it shall also be the duty of auy as an escort or agrees to act as an escort for person in control of a sleeping room .a x - ,.s" :(2) The application shall be sworn to be agents and employees present in the premis- any person under the age of 18 years. : hotel,motel, or"similar commercial estabhs f 411Q and correct by the applicant.' es to. ensure that the illumination described • SEC. 1A-16. ADDITIONAL REGULA- ment..that does not have a sexually oriented > :: (3) No alteration in the configurat•ion or above, is maintained at all times :that any_ TIONS FOR NUDE MODEL STUDIOS. business license he-rents or subrents : ` '/ '-;location of a manager's station may be made patron is present in the premises 1 (a) A nude model studio shall not employ sleeping room to a person and, within 10 7., `,;i 1 =.iwithout the prior approval of the sheriff_or (b) A person having a duty under Subsec- any person under the age of 18 years. hours from the time the room is rented, he his designee. tions (1) through (8) of Subsection (a) above •rz -- —------ --�—...--aa.a�, vu vaaavau.,, •;A: • .. 11.L.fl.JJ. V. 1Y11:V(ll�i a.,_ aaa�a.av, era.v. I LIU AP NDIX A—Continued _• • :.fir.;f. Cite 24 F.aa 725 (5th cam. 1994) (3) in a structure: injunctive • •�e: : :ER;CURIAM:- . terms if the other sites of . commits nse if he knowingly fails to r,:�. • :,,. ,_„ relief are shown....TAMP!TK's could obtain fulfill that (A) which has no sign visible from'.,,,,. r � `1` Video, Inc. challenged on First exterior of the :s„. g protection should it need to do so—from any structure and no other ._ - • I u. (c) All locational requirements of this'sec- tising that indicates a nude person is(";"," `•' • /.',"• ent grounds a Denton County order threat to enforce before the final licensing tion must be approved bythe countydirector ` • ,;, •tmg adult businesses. The district decision,provided TK's has made application PP able for viewing; and ���"<=L •; _ PP of public works within sixty (60) days from. - - , • , found-certain provisions unconstitution- for a license. Implicit in our ruling•is a the time the application is filed. • •: • (B) where in order to participate in a; cc" �; vexed them, and upheld the rest. We PP e„•_ P rejection-of any contention that this omission a student must enroll at least three der r- __ }"^" SEC. 1A-20. DISPLAY OF SEXUALLY �.��, ,. .�IIId only one remaining constitutional infix- in the statute renders it facially invalid. To advance of the class; and `f `�See TK's Video, Inc. v. Denton Coun- the contrary,the omission appears to present EXPLICIT MATERIAL TO MINORS." _ -.,, . pp (C) where no more than one nude mod -C`;y r. F:3d 705(5th Cir.1994). We concluded risk onlytoy TK's. (a) A person commits an offense'if; in'a � sexually oriented business establishment on the premises at any one time. _.n'_ �- ' -; the county's order did-not guarantee to - - - <`. I'duit:business operating on the effective • [171 TK's also notes that although,we open to persons under the age of 17 years,he (b) It is a defense to prosecutron•.uade� .: :;Of:the ordinance that the status quo found that the Denton County order was displays a book,pamphlet,newspaper,maga= Section IA-4(a) or.Section 1A-13 that . :-.,',' �''�-d be maintained prior to a final licensing constitutionally deficient in one respect, we �.,. • zine, film, or video cassette, the cover of item of descriptive; printed, film, or;_ ' ' • +.*` erasion, as required by FW/PBS Inc. v., did not award.attorney's fees for work done which depicts, in' a manner calculated to material offered for.sale or rental,takeaas`aY,", ••- _:'`�of Dallas, 493 U.S. 215, 227-00, 110 on the appeal.---We agree that TK's has arouse sexual lust or passion for commercial whole, contains serious literary, artistic,;:`;,` _„: _-r_ne„. _, gain or to exploit sexual lust or perversion litical or scientific value. .i--,`` et.. 596, 605-07, 107 L.Ed.2d 603 (1990). prevailed on a significant constitutional issue for commercial gain, any of the following: •`-r �fremanded the case to the district court on appeal, but leave to the district court the SEC. 1A-22. ENFORCEMENT. '�' "=�;• '?`°°'_• ,.�= .. . (1) human sexual intercourse, masturba- -:.-, - :the.instruction to enter judgment de- determination of the proper amount of attor- (a) As stated in Chapter 243 of the )J I 4 -1w'.,;g-that until the Director of Public ney's fees. troir, or sodomy; r-`_ F_ Government Code of Texas, the countyII. ., sr iI ., • or1s makes a final licensing decision;' a (2) fondling or.other erotic touching of sue in district court for an injunction. a,��nnse ap•plicant in business on the effective The petition for rehearing is denied. ._ human genitals,. pubic,region, buttocks, or, prohibit the violation of a re • .- -'` of`the order cannot be regulated by the • " female breasts; ... gelation o :.4 - order. -. .�,..- - 4m rrf,:w. W Ier.' (3) less than completely and opaquely coy-. '- a-I'` ,. ,e:aorl::. O SKEY NUMBER SYSTEM ered human genitals, buttocks, or that por- (b) stated in Chapter 243 of the.t �* • ..:., .- T Government Code of Texas,an offense. I IyG , ^Y ,:6J, ,TK's petitions for rehearings alleg- tion of the female breast below the top-of the = _r:... _ • -: this-subsection is a Class A misdemeanu:-': =...-that we directed the district court to ,'; r 'r• " en. ",this procedural .safeguard directly -,.(4)-human male.genitals,in a discernibly SEC. 1A�3. SEVERABILITY ,:a-, =_r•; • l;,..... "` . ,.I • the Denton County order'in violation`of turgid state,;whether covered-or uncovered. The terms; provisions, and condi.--,:Arkon-•.,)°'- - - •• - this order are severable. - `''" `4-. lniyer.sal Amuse iient Co. 'v.: Trance,'587 -_-,-(b) In this erection,?display" means t. ,la- . . .,,, :'�%I'r., ) 2$1.159,.172 (5th Cir.1978) (en bane);>e c NATIONAL,LABOR RELATIONS cate an item.in..such a manner that,without SEC. lB-1. TIME OF EFFECT. ;' , F` T S,308 100 S.Ct. 1156, 63 L.Ed.2d 413 s. BOARD, Petitioner, obtaining assistance from an employee:of the . ` e `°•% I' - - -,,,,T,,.... ,-,,,,.:. . businessThis'order-takes"effect at 12:00 ,p.in:;� �;'k�)i instead:.of striking_down the-order. _ ,. - - v. ;.. �'' establishment: - -_ :.o "+Y. . • -. •tu day following.its adoption. .. . -;;p ;_ •together.: ,The objection focuses :on-Ian- .• • '=: r .. ``McCARTY FARMS, INC., Respondent;; -.(1) it is available to the general public,for .PASSED and APPROVED this the`t5;,'= g1R0.-ln=Universal Arausement.,Co.,stating ..- - • i_ P: .-_.;,c:. -. - handling and inspection;-or ,,:-.., :' .,G.,`,. ^: day of February, 1990. "'�=,,,sc"-;: that Tederal•courts cannot rewrite Texas stet- r n` -•'(2) the cover or outside' ackagi oil the s - ,. -• - ?yY to-to :the•kind of procedural .--,. _f:; ._:,•- . - • P g /s/Vic Burgess -.. .. 1 5,_',. :.r : ..•-_.: ,. item is visible to members of the eneral-- • • v_a K rY• sate ards mentioned in.,FW/PBS.-•TK s al- l4;,j-;-; United_.States.Court'of,.Appeals, , . g Judge Vic Burgess = public. . ;• -- ; •.. • ,r " es:that our instruction to-the district court . Fifth Circuit. ,;,---.; Is/ Buddy Cole - amounts,to a rewritingof the Denton County SEC. 1A-21. .:DEFENSES. . ,:. .-=c-s•.,. t=3 _ h4 .• - - Commissioner Buddy Cole -` June 20, 1994.__. . y , :X;,er :` order at odds with the original legislative (a) tills a defense to prosecution under `„ . ;' intent behind the order. • - '' • •P.a /s/ SandyJacobs Section 1A11(a),'IA-13, or' 1'A-16(d) tlat'a ;_.._� --,-,.�- .. _ _ .-.-- _ .- ,-- person appearing in a state of nudity did'so Commissioner Sandy Jacobs ... : _^ils • A o' • • • : '<: ,:a 4 �I r ,TK's.is mistaken. We held that the county ..- .Employer who claimed that union certi- .__ in a modeling class operated: ,, -• /s/ Lee'Walker' '' :;'- '•• - �; 2nnot of i J f Y:J (1) byaproprietary ;F-?c', prior to•a final licensing decision con- fication election was tainted sought review, ,. school licensed'by the Commissioner Lee Walker ;'_:.' } ,titutionally regulate under the order by al- National, Labor- Relations. Board's finding state of Texas; a'college, or universi su ' :`' 1-.'",.. ''`" tY' P /s/- Hill _"-- iii the status quo of a license applicant in that employer engaged in unfair labor prat= ported entirely or partly by taxation; Commissioner Don Hill . . '• 5►usiness on the effective date of the order: tice by refusing to bargain-with union. . . - (2) by a private college or university Whicli r}. '-.!y•rewriting of the Denton County orderto Board petitioned for-enforcement:,of its or-'---•. • ON PETITION FOR.REHEARING E maintains and o erates educational programs -- ,< htii6a,constitutional re uirements.has been der.;;,The Court of Appeals, E..Grad Joll ' • in which credits are transferrable to a col- - . July 26, 1994 +:'._ ' to the Denton,County authorities.-..:Our Circuit Judge, held that:• (1)_,prounion em,: _. lege, junior college, or university•supported ' :Before GOLDBERG,•HIGGINBOT • • ,, .'grant of declaratory relief will support,ari ployee's cursing and threatening of antiunion entirely-or partly by taxation; or' '• and EMILIO M. GARZA, Circuit Judg• ,.�_. p !'unction by the district court to enforce its employee in voting line-was prima facie e'i- 2456'' i 111 SUPREME COURT REPORTER 501 U S. 558''," }501 U.S. 561 BARNES v. GLEN THEATRE, INC. 2457 i Cite as III S.Ct. 2456 (1991) We are not, rued here with a State public indecency statute which requires ;";:.-greater than is essential to furtherance of Held: T] figment is reversed. that reaped an unconstitutional windfall from dancers to wear pasties and a G-string, ; ' ' - g, as .`_- that interest. (Per Chief Justice Rehnquist, 904 • F.2d 1081 (CA9 1990), reversed. its taxpayers. .Georgia collected in good setting that statute violated the First •4`.'y ';;-'with two Justices concurring, and two Jus- The Chief Justice, joined by Justice faith what was at the time a constitutional Amendment.. The United States District:*<< `:?tices •concurring in the judgment) U.S.C.A O'CONNOR and Justice KENNEDY, con- • tax. The Court now subjects the State to Court for the Northern District of India potentially devastating liability without fair 726 F.Su 728, a, :Coast Amend. 1. eluded that the enforcement of Indiana's pp. permanently enjoined en- t,:=� . : warning. This burden will fall not on some forcemeat. The Court of Appeals for the `.-_ F*3• Constitutional Law a90.4(3) public indecency law to prevent totally nude dancingdoes not violate the First Amend- corrupt state government, but ultimately on Seventh Circuit, 802 F.2d 287, reversed and :,z • , a;,;.Obscenity 42.5 the blameless and unexpecting citizens of remanded. On remand, the District Court;;'4_' } ;:-a i�;.. Enforcement of Indiana's public indecen- ppn2460-463tee of freedom of expression. Georgia in the form of higher taxes and 695 F.Supp. 414, found that nude dancing-in , ,-;li 1 cy law to require nude dancers in adult en- reduced benefits. Nothing in our jurispru- question was not protected by the First `, tertainment establishments to wear pasties (a) Nude dancing of the kind sought to dence.compels that result; our traditional Amendment. On appeal, the Court of Ap= `,4.47-, ' '.• ':f and any G-string did not violate the First be performed here is expressive conduct analysis of retroactivity dictates against it. peals, 887 F.2d 826, reversed and remanded. :'.• .^ Amendment's guarantee of freedom of ex- within the outer perimeters of the First ...1159A fair application of the Chevron Oil Opinion was vacated and rehearing en bane :a• ' .; ' pp :,pression; statute was clearly within states Amendment, although only marginally so. analysis requires that Bacchus not be applied Wanted. The Court of Appeals, 904 F.2d .• r -- '.q'constitutional power, it furthered substantial See, e.g., Doran v. Salem Inn, Inc., 422 U.S. - retroactively. It should not have been op- 1081, reversed. After granting certiorari, -'• • - x`<;,governmental interest in protecting societal 922, 932, 95 S.Ct.2561,2568,45 L.Ed.2d 648. plied (even—to—the parties in that case. That the Supreme Court, Chief Justice Rehnquist; r: order and morality, governmental interest P. 2460. mistake was made. The Court todaycoin- held that enforcement of public indecency • �: '- was unrelated to suppression of free expres-, PP xP (b) Applying the four-part test of Unit- pounds the problem by imposing widespread statute to require that dancers at adult en- _1 ;; ,',. 6'`.•,.`:Sion, and incidental restriction on First ed States v. O'Brien, 391 U.S. 367, 376-377, liability on parties having no reason to expect tertamment establishments wear pasties and ` :','.'=i ::'Amendment freedom was no greater than 88 S.Ct. 1673, 1678-1679, 20 L.Ed.2d 672— it. This decision is made in the name of a G-string did not violate the First Amend-33;:'•",. .''-'-was essential to furtherance of the govern- which rejected the contention that symbolic ,� meat. =•s:,:.: ;,.J,, - equality' and stare deeisis. By refusing - = _mental interest. (Per Chief Justice Rehn- speech is entitled to full First Amendment to take into account the settled expectations Reversed. ,-" .Yx t•�,guist, with two Justices concurring, and two protection—the statute is justified despite its of.those who relied on this Court's estab- - •• Justices Scalia and Souter filed •o uuons'7.• `', :: i !slices -concurring in the judgment.) incidental.limitations on some expressive ac- lished precedents, the Court's decision per- concurring in the judgment. P L°.:, : ; ;;west's A.I.C. 35-45�1; U.S.C.A. Cbnst. tivity The law is clearly within the State's verts the meaning of both those terms.- I ;.,.i ;: )f Amend 1. . . - constitutional power. And it furthers a sub- respectfully dissent. • .., Justice White filed dissenting opinion;in • '='- - '' ;,;�';; which Justices Marshall, Blackmun, and Ste'% s;`" stantial governmental interest in protecting • vens joined. • •: :r ,. - Syllabus*. societal order and morality. Public indecen- E • . . ::.,= i - •• Respondents, two Indiana -establish- cy statutes reflect moral disapproval of peo- •-- -• O • 5KCYNUMBERSYSTEM - ---';��(:+� j " '..:;meats wishingtoprovide totallynude'danc- ple appearing in,the nude amongstrangers T . __y'= . PP. g . . 1. Constitutional Law a90.4(3, 5) _ : ing as entertainment and individual dancers in public places, and this particular law fol- . fi -.-•Vm to ed at those establishments, brou ht lows a line of.state laws, datingback to 1831, • .. Totally nude dancing as sought to aie•��T;, •,• •�.ti.P Y _ g . .. . , ,:_ - - 501 U.S. 560, 115•L.Ed.2d 504 performed in lounge presenting"go-go daney..:: ;A ', suit• .in the District Court to enjoin.enforce- banning public nudity. The States'tradition- , -- - - ,-`;,; „ ` u ' ';Y` ' ent-.of the. statepublic.,indecent law— al policepower is defined as the authorit •to mg, and in adult bookstore, was express�'°•_�.- .-., ° y - y __'•J oMichael_BARNES_.Prosecutin ..-=- - sive conduct within the-outer erimeters_9 .;•. - `- ..:.'',..;',F.,. 4ich.requires respondent dancers_ to wear provide for the public health, safety,:and- ----- Attorney Attorney of St. Joseph County, - P `� _'.- asties and G-strings—asserting assertin that:the morals,and,such a basis for le lation ssllias the First Amendment, although only margin �' p �— g Indiana, et al. :: ' >]aw's-prohibition against•total nudity in pub- ' been upheld. See, e.g., Paris Adult Theatre ally so. (Per Chief Justice Rehnquist, with; , v, ==- two Justices concurring, and two Justices g` t . _ '` .'lies;places .violates the First Amendment. I v. Slaton, 413 U.S. 49, 61, 93 S.Ct. 2628, GLEN THEATRE, et al. concurring in the judgment.) U.S.CA ` *r. f The court held that the nude dancing in- 2637, 37 L.Ed.2d 446. This governmental •. INC.,I ConstAmend. 1. `'.,volved here was not expressive conduct.: The interest is unrelated to the suppression-of • . -No. 90-26. - . -- -t. ''•.Court of Appeals reversed, ruling that no- free expression,since public nudity is the evil 2. Constitutional Law a90(3) =' Argued Jana 8, 1991. '•'T`- -•'r . ,-•,' mobscene nude dancing performed for enter- the State seeks to prevent, whether or not it _ Government regulation of expressive _ _ r`tamment isprotected a ression and is combined with expressive activity-. The • xP xP ty .Decided June 21• , 1991. -• -• conduct is sufficiently justified if it is within. .--" ;the statute was an improper•infringement of law does not proscribe nudity in these estab- - the constitutional power of the government, µ.:' that activity because its purpose was to,pre- lishments because the dancers are conveying . if it furthers an important or substantial_'.:'`.,- "-z- :=5"went the message of eroticism and sexuality an erotic message. To the contrary, an erot- Establishments wishingtoprovide total- `'= .. governmental interest, if the governmental "' ' conveyed by the dancers. is performance may be presented without ly-nude dancing as entertainment and indi- interest is unrelated to suppression of free_'-;s " . r•r: vidual dancers employed at establishments expression, and if the incidental restriction - - The syllabus constitutes no part of the opinion of See United States v.Detroit Lumber Co:,200 U.S. • °' '•`the Court but has been prepared by the Reporter - 321, 337, 26 S.Ct.'282, 287, 50 L.Ed. 499. brought suit to enjoin enforcement of Indiana on alleged First Amendment freedoms is not'(.' : '`.'-'of Decicionc for the convenience of the reader_ __ _.,.� �,. dui u.3. Div; ,i 'e :501 U.S. 565 BARNES v: GLEN THEATRE, INC. Chem 111 S.Ct. 245 1 2459 any interference, so long as the per- merely associated with nude clan estab- v; _; ies" and "G-strings" when they dance. The I3 'dents sued in the United States ie ex form year a scant amount of clothing. lishments and are not the result o ' Finally, :�.:,fr • ,•w- dancers are not paid an hourly wage, but District Court for the Northern District of the incidental restriction on First pression inherent in nude dancing. Id., at ''�;< •' Amendment freedom is no greater than is 48, 106 act., at 929. Finally, the restriction �_�� ,��:,"•�-work on commission. They receive a 100 Indiana to enjoin the enforcement of the essential to the furtherance of the govern- is no greater than is essential to further the }.- }Y_<i percent commission on the first $60 in drink Indiana public indecency statute, Ind.Code mental interest. Since the statutory prohibi- governmental interest, since pasties and a G- , sales during their performances. Darlene § 35-45-4- (1988), asserting that its pro- _,. ;--}`. ✓ Miller, one of the respondents in the action, hibition against complete lion is not a means to some greater end, but string moderate expression to a minor de- ;;,' g s nudity in public an end itself, it is without cavil that the gree when measured against the dancer's ',E ' _ had worked at the Kitty Kat for about two places violated the First Amendment, -The statute is narrowly tailored. .Pp, 2460-2463. remaining capacity and opportunity to ex- _' Years at the time this action was brought. District Court originally granted respon- Miller wishes to dance nude because she dents' prayer for an injunction, finding that press an erotic message. Pp. 2468-24,71, - _"=- Justice SCALIA concluded that the staff =1' y's believes she would make more money doing the statute was facially overbroad. .The ute—as a general law regulating conduct and • _zzREHNQUIST, C.J-, announced the'_ =-_, ''-`:-;'-:`so. a.• .:r Court of Appeals for the Seventh Circuit - not specifically directed at expression, either judgment of the Court and delivered an ;;;} x= .' reversed, deciding that opinion, in which O'CONNOR and "' Respondent Glen Theatre Inc.,. is an g previous litigation in practice or on its face—is not subject to �-. corporation with respect to the statute in the Supreme KENNEDY, JJ., joined. SCALIA, J., post; =;n�s._. rA ation with a place of business normal First Amendment scrutiny and p 2463, and SOUTER, J.,post, p. 2468, filed ';{ y -in.South Bend. Its rim business is sup- Court of Indiana and this Court precluded re- should be upheld on the P P the possibility of such a challenge,'t and p ground that moral opinions concurrin - ` ' lying so-called adult •entertainment through ' opposition to nudity supplies a rational basis P g the judgment. ,44,.Y ..p g manded to the District Court in order for the WHITE, J., filed a dissenting opinion, in r,-- .,,_;.;_written and printed materials, movie show- plaintiffs to pursue their claim that the stat- L-fog its prohibition. Cf. Employment Div., which MARSHALL BLACKMUN and `•__ ; ings, and live entertainment at an enclosed Dept. of Human Resources of Ore. v- Smith, STEVENS, JJ., joined, post; p, 2471. `'t ;. ,:ifbookstore." The live entertainment at the to their dad the Firstl Amendment as applied 494 U.S. 872, 110 S.Ct. 1595, 108 L.Ed.2d -�' to dancing. Glen Theatre, Inc v. Pear- : ;_ Y,`.9"bookstore consists of nude and seminude son, 802 F.2d 287, 288-290 (1986). On re- .There is no intermediate level of scruff- -performances and showings of the female ny requiring that an incidental restriction'on • ;�:. '• - ;,�� g mand, the District Court concluded that Wayne P } : y..through glass panels. Customers sit in «the type of dancing these plaintiffs wish expression, such as that involved here;, be Wa a E. Uhl, Indianapolis, Ind., for peti- _ •a:booth and insert coins into a timing mecha-justified by an important or substantial gov- tioners. to perform is not expressive activity protect- :_• : _ .; nism that permits them to observe the live ed by the Constitution of the United States,'' ernmental interest. Pp. 2463-2467. `` ? EII, Bruce J. Ennis, Jr., Washington, D.C., for , ) .• A-- ude and seminude dancers for a period of and rendered judgment ' Justice SOUTER, agreeing that the respondents. ,.,. i '.:.-time One of Glen Theatre's dancers Gayle in favor of the City o r',.' •.{;'Ann Marie Sutra h ' .South Glen Theatre, Inc. v. Civil of : ' nude dancing at issue here is subject to, a -r_f s,- as danced, modeled, and South Bents 695 F.Supp. 414, 419 (1988j: degree of First•Amend h ent'protecti Subject tond -acted professionally for more than 15 years, The case was` `'`�'`' again appealed to the Seventh Chief Justice REHNQUIST delivered the'"",`.':':"--. and in addition to her performances at the Circuit, and a panel of that court reversed that the test of United States v: 0'B ' -::- ien, 391 opinion of the Court. "''` w;GIen U.S. 367, 88 S.Ct. 1673, is the a ro riate - ' •; ; -J:> Theatre, can be seen in a pornographic the District Court, holdingthat the nu analysis to determine the'actual protection Respondents•are •two establishments':in;.;_? -'ymovie at a nearby theater. App, to Pet for dancing involved here was expressive con- Cert'131-133.required; concluded that the Skate's interest South Bend, Indiana, that wish to provide` '-.,' _ •''zssIFT �• • duct protected by the First Amendment: . in preventing the secondary effects of adult totally nude dancing as entertainment, and`x';. Tx v:The Indiana Supreme Court ap peared ppeared to give : •• '• 'r; the "Miss Erotica of Fort Wayne" contest. Er- .i entertainment establishments prostitution individual dancers who are em to ed at these`4 the Public indecency p y t .9i. statute a limitingconsttvc- _- � _ -� � .tihardy v State 468 NE 2d 224 v d cT (Ind.1984). The assaults, and other•cnmmaTactivi _ sssestablishments: The maim that the Firsts, - - save it from a facial overbreadth attack: a. o- t3' ..L Y ,,;-_:�� Indiana Supreme Court did not discuss the con- issufficient under O'Brien to justify the law's Amendment's guarantee`of freedom of eS; :1;•E , f,;,ss'There is no right to 'appear nude in public. the ion issues beyond a cursory comment that ression ievents the State of Indiana frotn;` .•i s " 'ether, it may be constitutionallyrequiredthe statute had been upheld against constitution-, enforcement against nude dancing. The. re- P P :z to g g P T _- ,,�+k:tolerate or to allow some nudity as a part of aI attack in Baysinger,and Erhardt's conduct fell enfor a of such effects clearly falls within the enforcing its public indecency law to prevent'+r:; = some larger,_ F� ..- form of expression meriting protec- within the statutory prohibition. Justice Hunter State's constitutional power. In addition,the this form of dancing, We reject their claim. -.''i `•"-• - eon, when the communication of ideas is in- P �,, valved." State v. Baysinger, 272 Ind. 236, 247, dissented, arguing that"a public indecency slat- asserted interest is plainly substantial, and "`) ;� 3 ate which prohibits nudity in ' tL 97 N.E.2d 580, 587 (1979) any publicasplace is ,,.The facts appear from the pleadings and- f . F (emphasis added), unconstitutionally overbroad. My reasons for so" the State could have, concluded that it iS appeals dism'd sub nom. Clark v. Indiana, 446 concludinghave already been articulated in State findings of the District Court and are uncon- -R= furthered by a prohibition on nude dancing, 'S• 931, 100 S.Ct. 2146, 64 L.Ed.2d 783, and v. Ba stnger, (1979) 272 Ind. 236, 397 N.E.2d g, tested here. The. Kitty Kat Lounge, InC^ 14 V� '''''L ed v. Indiana, 449 U.S. 806, 101 S.Ct. 52, 66 580 (Hunter and DeBruler, JJ., dissen'ting).'' even without localived proof of the harmful (Kitty Kat), is located in the.city of South r±.�L•Ed•2d to (1980). . c „ Five • 468 E.2d at 225-226. Justice DeBruler ex- effects. See Renton v.' Playtime Theatres, Bend._ It sells alcoholic beverages and yes- r? Years after Baysinger, however, the pressed similar views in his dissent in upreErharde - Inc., 475 U.S. 41, 50 51, 106 S.Ct. 925, 930, �� „ g P •^ :: � ';Indiana Supreme Court reversed a decision of Id., at 226. Therefore, the Indiana Supreme ents go-go dancing. Its proprietor desires;-. the Indiana Court of Appeals holdingthat the Court did not affirmatively limit the reach of the 930, 89 L.Ed.2d 29. Moreover, the interest topresent `.`totall nude dancing," but an. s Y g� •---i-f tatute did "not apply to activity such as the statute in Baysinger, but mere) said is unrelated to the suppression of free. ex- applicable Indiana statute regulating public:;:•: appearancesY that to the theatrical bitedinvolved herein, which extent the First Amendment would require•it,the pression, since the pernicious effects are nudityK..: • ^``. x_~p'ay not be prohibited absent a finding requires that the dancers wear ast-:;•• s , 1 i of obscein • statute might be unconstitutional arse s applied to P ry."•in a case involving a partially nude dance in some arr;v;r;P. 2460 111 SUPREME COURT REPORTER 501.U3;. :,-1U.s. 568 BARNES v: GLEN THEATRE, INC. 2461 ' Clte as 111 S.Ct.2456 (1991). Miller v. City of South Bend, 887 F.2d forded to the expressive conduct at ism ' •- •of violating a statute that prohibited islators had, mind when they enacted 826 (1989). 'rile Court of Appeals then heard must determine whether the Indiana-: ,;,,- ',., J imowing destruction or mutilation of.such this statute, for Indiana does not record the case en bane, and-the court rendered a is an impermissible infringement of that`" • , prd: He claimed that his conviction was legislative history, and the State's highest series of comprehensive and thoughtful opin- tected activity. , 6ry to the First Amendment because court has not shed additional light on the ions. :The majority concluded that nonob- , x . �, ;act.was "symbolic speech"-expressive statute's purpose. Nonetheless,.the statute's scene nude dancing performed for entertain- Indiana, of course, has not banned.`_ - .,mutt, The Court rejected his contention purpose of protecting societal order and mo- dancingas such, but has pub ment is expression protected by the First proscribed public - „;t symbolic speech is entitled to full First rality is clear from its text and history. Pub- Amendment, and that the public indecency nudity across the board. The Supremo: , endrnent protection, saying: . lie indecency statutes of this sort are of statute was an improper infringement of that Court of Indiana has construed the Ind> " '- ' expressive activity because its purpose was statute to preclude nudity in what are..:, :_ . IE]ven on the assumption that the alleged ancient origin and presently exist in at least to prevent the message of eroticism and sex- tially places of public accommodation such' pmmunicative element in O'Brien's. con- 47 States. Public indecency, including nudi- uality conveyed by the dancers. Miller v. the Glen Theatre and the Kitty Kat Lo` :duct is sufficient to bring into play the ty, was a criminal offense at common law, '' '-'E9rst Amendment, it does not necessarily and this Court recognized the common-law - Civil City of South Bend, 904 F.2d 1081 In such places,respondents point out;lriiri,r -;follow that the destruction of a registration roots of the offense of"gross and open hide- (1990). We granted certiorari, 498 U.S. 807, are excluded and there are no nonconseti tu1g: 111 S.Ct. 38, 1.12 L.Ed.2d 15 (1990), and now viewers. Respondents contend that'• ni' .`certificate is constitutionally protected ac- cency"in Winters v. New York 333 U.S.507,• wh17e -, ty: >,{ ,iThis Court has held that when 515, 68 S.Ct. 665, 670, 92 L.Ed, 840 (1948). hold that the Indiana statutory requirement the State may license establishments such : . `nonspeech' fhat_the dancers in the establishments in- the ones involved here, and limit thelg ;speech and nonspeech elements are com- Public nudity was considered an act ma/um e, ,med in the same course of conduct, a . in se. Le Roy v- .Sidley, 1 Sid. 168, 82 volved in this case must wear pasties and G- graphical area in which they do burin `'`sufficiently important governmental inter- Eng.Rep. 1036 (K.B.1664). Public indecency strings- does not violate the First Amend- may not in any way limit the performance ,1' ryf.•. ment. •• t'm.,regulating the nonspeech element statutes such as the one before us reflect the dances within them without violating, .• "' :;:,... can,justify incidental-limitations on,First First Amendment. Thepetitioners con moral disapproval of people appearing in the endment freedoms. . To characterize [1] -Several of our cases contain language on the other hand, that Indiana's reatilctt„ . - v:rv,. nude among strangers in public places. . I : .,k:quality of the governmental interest • suggesting that nude dancing of the kind on nude dancing is a valid "time, place; '?-.' cli :must appear, the Court has em- This public indecency statute follows a involved'here is-expressive conduct protected manner" restriction under cases`"suchroyed a variety of descriptive terms: corn- long line of earlier Indiana statutes banning by the First Amendment. In.Doran v. Sa- Clark v- Community for Creative Ndrm9!. • ' g, substantial; subordinating;.. para- all public nudity. The history of Indiana's lem Inn, Inc.,'422 U.S. 922, 932, 95 S.Ct. fence, 468 U.S. 288, 104 S.Ct.-30653k .,mount• cogent;. strong. Whatever impre- 2561; 2568, 45 L.Ed.2d 648 (1975), we'said: L.Ed.2d 221 (1984).' �" • -' g g' P public indecency statute shows that it pre- = T k_rz's asion.inheres in these terms, we think it "[A]lthough the customary-'barroom' type-of `' .;��'+ _:�° dates barroom nude dancing and was enacted The tune lace or manner" test was=, - uear_that a government regulation is suffi- as ageneral prohibition. At least as earlyas nude•'dancing•may involve only the barest P PwY, aentl justified if it is within the constitu- veloped for evaluating restrictions on;}:,_ �;- a yy- -- 1831, Indiana had a statute punishing "o-en minimum'of protected expression, we'recog- P hued iii California v. LaRue,1409 U.S.A 109, Sion,taking place on public tibial power of the Government;.:if it fur- p property `�" and notorious lewdness, or ... any grossly 118;'93 S.Ct.390, 397,34 L.Ed.2d 342 (1972), had been dedicated as a "public fo,'_ -.: ';thers:an important or substantial govern- scandalous and public indecency." Rev.Laws • that this form of entertainment might:.be Ward v- Rock Against Racism, 491 U:S 7$►1 - 1 ntid interest; if the governmental'.inter- of Ind.,ch.26, § 60(1831); Ind.Rev.Stat.,ch. • 791, 109 S.Ct. 2746 :is unrelated to the suppression of free entitled to First and Fourteenth Amendment 2753, 105 L.Ed2d--• t_; ' :,. 53,. § 81 (1834). A gap -during which„no ._ ,_T :session•and if_the_incidental_restric-__ -- - protection--under-some circumstances:"-In (1989),-although-we -have on at-1 yeas O1: statute was in-effect was filled by the rndlana tion`on alleged First Amendment-freedoms Schad-v'Mount Ephraim, 452 U.S. 61,'66, occasion applied it to conduct occurring;on: `?no greater than is essential to the fur- Supreme Court in Ardery v- State,.56 Ind. - 101.S.Ct._2176, 2181, 68 L.Ed.2d 671 (1981), private property. See Renton v. Pla' - ,e`rance of that interest." .Id, at 376�77, 328 (1877), which held that the court could we'Said. that "[f]urthermore, as the;state Theatres, Inc-, 475.U.S. 41, 106 S.Ct.;9 89. -- sustain a conviction for exhibition of ' ii Courts in this case'reco ed, nude dancing (1986). In Clark we 'observed' - S.Ct.,.at 1678-1679 (footnotes omitted). L.Ed.2d 29 � „ that this test has been interpreted �'"''''''"` vates in the presence of others. The court is not without its First Amendment,protec- to em'." ;[3]-.,Applying the four-part O'Brien-test traced the offense to the Bible story of Adam tions from official regulation" (citations omit- much the same standards as those setj'! '' ciated above,we find that Indiana's pub- and Eve.. Id., at 329-330. In 1881,a statute - ted). These-statements support the conclu- in United States v O'Brien, 391 U:S.,`3,.;88 -i indecency statute is justified despite its was enacted that would remain essentially pp S66that nude (1968), ,,4- Sion of.the Court of'.A Appeals S.Ct. 1673, 20 L.Ed.2d 672 antis dental limitations on some expressive ac- unchanged for nearly a century: dancing of the kind sought'to be performed tom, therefore, to the rule •enuncia •1 :m ; The public indecency statute is'clear- • ' here-is expressive conduct within the outer O'Brien. g s: ' => r 1W1 `'Whoever, beingover fourteen • thin the constitutional power of the years of perimeters of the First Amendment, though ,i.:f - -•Mate and furthers substantial governmental age, makes an -indecent exposure of his _ we view it as onlymarginally ' '.•� "so. This,'of [2] •O'Brien0 Brien.burned his draft card;oir F ,;f pests. It is impossible to discern, other person in a public place, or in any place course, does not end our inquiry- .We must steps of the South Boston Courthouse iiin. : - ';; from the text of the statute; exactly where there are other persons to be of- . determine the level of protection to be af- presence of a sizable crowd, and 1 fis7was:,.'' -,_ 10.1,1at governmental interest the Indiana leg- fended or annoyed thereby, ... is guilty of • 2462 111 SUPREME COURT REPORTER "' 501 �, )'::J;S• 572 "BARNES v GLEN THEATRE; i •2463 • ,t, ;' ClteasIll S.Ct.2456 (1991) public indecency.... • • y...." 1881 Ind.ticts,•ch. limitless types of conduct—including •;:-; , �f= f 37, § 90. g a governmental interest must be unrelated element, it.was not the dancing that was • ing in the nude in public—are "expr: ., ".,e':suppression of free expression. prohibited, but simply its being done in the JsThe language quoted above remained un- and in one sense of the word this is','," '1';1'_a; -nude. - -. changed until it was simultaneously repealed People who go about in the nude in 1, t we do not think that when .Indiana - and replaced with the present statute in may be expressing something about:. ;:�`„ , ._,,,,I es:its statute to the nude dancing in The fourth part of the O Brien test re- selves byso doing. �"" nightclubs it is'proscribing nudity be- quires that the incidental restriction on First 1976.• 1976 IndActs, Pub.L. 148,Art. 45, ch. But the court reject Amendment freedom be no greater than is 4, § 1? this expansive notion of"expressive con.),, • of the erotic message conveyed by the in O'Brien, saying:. • r: ,cars•;�nPresumably numerous other essential-to the furtherance of the govern- This and other public indecencystatutes Ymg• :n•f�' presented at these mental interest As indicated in the discus- This • 1 _ itio,'performances are were designed to protect morals and public "We cannot accept the view that an--ap, -• ilishments and similar clubs without any sion above, the J governmental interest order. The traditional police power of the ently limitless variety of conduct *,- erence from the State, so long as the served by the text of the prohibition is socie- States is defined as the authority to provide labeled `speech' whenever'the'pers .ormers wear a scant amount of clothing. tat disapproval of nudity in public places and for the public health, safety, and morals, and gaging in the conduct intends there- ,".. ,I.ewise, the requirement that the dancers among strangers. The statutory prohibition we have upheld such a basis for legislation. express an idea." 391 U.S., at 376; $g - `pasties and G-strings does not-deprive is not a means to some greater end, but an In Paris Adult Theatre I v. Slaton, 413 U.S. S.Ct., at 1678. `:'dance of whatever erotic message it con- end in itself. It is without cavil that the 4.9,-61, 93 S.Ct. 2628, 2637, 37 L.Ed.2d 446 - t`k;R .' 'it simply makes the message slightly public indecency statute is "narrowly tal- (1973), -e said: . . And in Dallas v. Stanglin, 490 U.S.19 oe: ~;,graphic. The perceived evil that Indiana bored"; Indiana's requirement that the danc- • S.Ct. 1591, 104 L.Ed.2d 18 (1989),we 4M• - Z.to-•address is not erotic dancing; but ers wear at least. pasties and G-strings is In deciding Roth [v United States, 354 bserved: -'"* •o U.S. 476 [77 S.Ct. 1304, 1 L.Ed.2d 1498] - ►',- . 'a nudity. The appearance of people of modest, and the bare minimum necessary to (1957)], this Court implicitly accepted that ' "It is possible to find some kernel o-.`�`'b- "';shapes, sizes and ages in the nude at a achieve the State's purpose. = ...a.y - ,�':' •.,.for example,would convey little if any pp a legislature-could legitimately act on such pression in almost every activity a person The judgment of the Court of Appeals 'x —I_y";message, yet the State still seeks to accordingly is : ": a conclusion to protect the social interest ' undertakes—for example, walking°#,• 11 • '••ent-it. Public nudity is the evil the State • Reversed in order and morality.'. [Id.], at 485 [77 the street or meeting one's.friends F - •4 l 'VI.'•.' _ �L: - .;•1t cto:prevent, whether or not it is com- -• S.Ct-; at 1309]." (Emphasis omitted:)- shopping mall—but such a kernel is'.,•i ;,:, with expressive activity.- .s- sufficient to bring the activi Y • • '•- :"' r And in Bowers v, Hardwick, -478 U.S. 186, g ' t; ; ,•. • . Justice SCALIA, concurring in the_ _. . 196, 106 S.Ct-.2841,. 2846, 92 L.Ed.2d' 140 Protection of the First Amendmen ` "'-r % "`conclusion is buttressed by a refer- judgment. (1986), we.said: -�-, • think the-activity of these 'dance .I •`•L-,.� to.the facts of O'Brien 'An Act of • • I agree that the'judgment of the Court of " • • trons coming together to engage`iii,recee- egress provided that anyone who.know :".-The law,.however, is constantly based on _r i''' - A eals must be.reversed. 'In myview how- - - ational' dancing—is not protected zb�.�.t �_• '>,c�estroyed a Selective Service'registra- ..PP i notions of morality, and if all laws_repre- First Amendment" Id, at 25, 109" }"�1- •,..4••'certificate -..committed • 'an' offense. ngregulation,,:. p-- . :- u """ ever, the challen ed must be=u . sentin essentiallymoral choices are to-be -`=en ' `r i.' g at 1595. ;;_, &A t. i -err burned his certificate on the a steps df .held,not because it survives some lower level invalidated under the Due Process Clause 4, r n�, -: - _ , S'outh _Boston Courthouse_to•influence of First.Amendment scrutiny;but because, - the courts will be'very busy indeed."- `:- •Respondents contend that even_h;th!'; t!•' ` • • c.: . i� to"adopt his antiwar beliefs -Tills Si a general law regulating conduct and'aot - rohibitin Wadi • prohibiting nudity._in public :gene .e t; �_ • =upheld his conviction,-reasoning'that--specifically_directed. at-expression,it_is5no. • ' -Thus,.the public indecency-statute.fur' d's - ,.....,,it- ,„s,-1..;.: not be related to suppressing expressio -,,,; ,•-conianued availability of issued certifi- subject to First Amendment scrutiny at:all. a•substantial government interest in.protect- .-_a,,;,:•., • prohibiting-theperformance of nude,,.,- • ing order-and morality -, .:: _ , -_• .a legitimate and substantial par- • `:;ice;..__• -: �- • is related to expression because_the:1S�_%_k• •in the-administration of the Selective --,;tics; - �oThis interest is unrelated. to the sup- seeks to prevent its erotic message.:s.ibere- •-- • ce"System. O'Brien's deliberate -de- Indiana's public indecency 'statute pro- pression of free expression. Some may view fore, they reason that the application:ofr••3 i ction of his certificate frustrated-this - • - vides: restricting nudity on moral grounds as neces- Indiana statute to the nude dancing m-;_s'"•` ';;is 7. s_se..,and "[f]or this noncommunicative '" sarily related to expression. 'We•disagree. case violates the First Amendment,`b�'r[' ' ` '-'.,�' L.-of his conduct, and for nothing else, "(a) A person who knowingly or intention- +:ft• It can be argued, of course,'that almost it fails the-third part of the O'Brien to ,: ' ) ' 'i•� convicted." 391 U.S.,at 382,88 S.Ct:, ally, in a,public_place: _• :` _: 2. Indiana Code§ 35-45-4-1 1988) " 1682- 'It was assumed that O'Brien's-act •••"(1) engages in sexual intercourse; ( provides commits public indecency, a Class^A .- 'Ul un the certificate had a eommuniea- « •.."Public indecency; indecent exposure meanor. «i-'w -,'„up ..g ,(2) engages in deviate sexual eondUct;. i1' "Sec. 1.. (a)A person who knowingly or inten- - "(b) 'Nudity'means the showing of the'ht hYe';element in it sufficient to bring into play • "(3) appears in a state of nudity; •or tionally, in a public place: . _ 'male or female genitals, pubic area, or'b`'111�. ''':,First Amendment,id, at 376,88.S.Ct:, at ;.. "(1) engages in sexual intercourse; with less than a fully opaque covering,.thes-r,•- J 1 ��'; but it was for the noneommunieative "-(4) fondles:the genitals of himself or "(2) engages in deviate sexual conduct • ing of the female breast with less than a- 'k •r%- "(3) appears in a state of Wadi 1. ant that he was prosecuted. `So here another person; PP nudity; or opaque covering of any part of the nipple,��oyt',"- 4iie , _ "(4) fondles the genitals of himself or another shnwinv of 4,..,-n.,e..oa.....i,.---..-1..::.�.'��r1L-:- 'I I.tha Tnrlia,, eta+„+n• nrhilc +hu•..i'ann;nn• nnmrni+e roil-din inticno,i v. a ('.race A ,,;;e- -. ,.-• 2464 • 111 SUPREME COURT REPORTER 501 U.S``v .w ,�'1.U.S. 576 BARNES v: GLEN-THEATRE,'-INC. 2465 • Cite as 111 S.Ct.2456 (1991) • "(b) 'Nu( means the showing' of the not., Criminal offense predicated on inde_,,..,, ":: . T••, '- he 'dissent confidently asserts, post,.- at electorate in , -jurisdiction] that homosex- human male or female genitals,pubic area, exposure, 93 A.L.R. 996, 997-998 (193j. "` t - 0I73;-that the purpose of restricting nudity in ual sodomy is immoral and unacceptable"). or buttocks with less than a fully opaque Winters v. New York, 333 U.S. 507, 515,.138-1_' .4, ," '„'blie places in general is to protect noncon- See also Paris Adult Theatre I v. Slaton, 413 covering, the showing of the female breast S.Ct. 665, 670, 92 L.Ed. 840 (1948) ;;> '` Ming parties from offense; and argues U.S. 49, 68, n. 15, 93 S.Ct. 2628, 2641, n. 15, • with less than a fully opaque covering of Indiana's first public nudity statute,"Rev := ;.$ " `jat since only consenting, admission-paying 37 L.Ed.2d•446 (1973); Dronenliiirg V. Zech, anypart of the nipple, or the showingof Laws of Ind., ch.26, § 60(1831),predated:by'*; - , _' ' ; "lions see respondents dance, that purpose 239 U.S.App.D.C.229,238,and n.6,741 F.2d PP + P many years the appearance of nude barroom:-' ) ` `} applyand the onlyremainingpurpose 1388, 1397, and n. 6 (1984) (opinion of Bork, covered male genitals in a discernibly tur- niiot gid state." Ind.Code § 35-45� 1 (1988). dancing. It was general in scope, directed.at : 'Air • 1 t relate to the communicative elements of allpublic '. ,- ,..t - -- J.). The purpose of the Indiana statute, as nudity, and not just at public-nude r•z$4:, -. eFperformance. Perhaps the dissenters be- ' both its text and the manner of its enforce- On its face,this law is not directed ate res- expression; and all succeedingstate -,.,'t :,, ,--•:jivement demonstrate, is to enforce the tradi- xPeee that"offense to others" ought to be the sion in particular. As Judge Easterbrook down to�74the present one, have been.the•.1 $:1 6y'-reason for restricting nudity in public put it in his dissent below: "Ind na573 does same. Were it the case that Indiana::ia<r; • ,;'es generally, but there is no�75basis tional moral belief that people should not not regulate dancing. It regulates public practice targeted only expressive nudity;, ;,,,:thinking that our society has ever expose their private parts indiscriminately, while turning •a blind eye to nude beaches "' t " "youmay- regardless of whether those who see them nudity.... Almost the entire domain of c stared• that Thoreauvian - do- g Indiana's statute is unrelated tentire expression, and unclothed purveyors of hot dogs: and ' ; machine tools, see Miller, 904 F.2d at 1120 5 i''' • 't*"'You-like so-long as-it-does-not- are disedified. Since that is so, the dissent unless we view nude beaches and topless hotmightposed -:' �. %injure-someone-else beau ideal-much less has no basis for positing that, where only P 1121, it be said that what as,a%_. '' '=' dog-venders as speech" . Miller v. Civil Cityregulation -' ' ,;, ;;•far thinking that it was written into the thoroughly edified adults are present, the " of conduct in general was inreah -, • 4 onstitution. The purpose of Indiana s nudi- purpose must be repression of communica- of South Bend 904 F.2d 1081, 1120 (CA7 ty a regulation of only communicative:,con .• _ ' '{.,;law'would •be violated, I think, if 60,000 lions _ 1990). The intent to convey. a "message of duct.. Respondents have adduced: no,?evi_: ,. `• ', „'may consenting adults crowded into the Hoo- eroticism (or any other message) is not a dence of that. Indiana officials have brought ' :� manypublic indecencyr - • Dome to display their genitals to one necessary element of the statutory offense of prosecutions for active r another, even if there were not an offended76II public indecency; nor does one commit that• ities having no communicative element.=�See< ,,,, ''.- ;• ;�; Bond v. State, 515 N.E.2d 856 857'(In.-`'r" = ` . ``'jIIIIocent in the crowd. Our society prohibits, Since the Indiana regulation is a general statutory offense by conveying the most ex- z •CPr .7d e . ',; •;all human societies,have prohibited,.cer- law not specifically targeted at expressive 1987)• In re Levinson, 444 N.E.2d 1175'lj7 :34?-" : r<•• plicit "message of eroticism," so long as he ,,.•,,. .R: f lsain�,activities not because they harm others • (Ind.1983); Preston v. State, 259 Ind- • 1::. conduct, its'application'to such conduct doe's- . does not commit any of the four specified ' '=� r '+because they are considered,in the tradi- •� w " 354�55,287 N.E.2d 347,348(1972); Thairias < : „ . not in my view implicate the First Amefa- acts in the process.' -"'� ';'. -, anal phrase;.-contra bonos mores; i.e:;'im- _, , v. State, 238 Ind 658, 659-660, 154,N.E2d; =3,4 _ � ment. Indiana's statute•is in the line of a-long 503, 504-505 (1958). Blanton v..,State• „ 533';Xi.- Indiana's `In American society, such prohibi- -- :-.;;_; . _ __ c:::; N.E.2d 190 191 (Ind.A 1989); ney;, -••ins-have included, for example, sadomaso- The First Amendment explicitly protects tradition of laws,against public nudity,which PP S7cee v have.never been..thought ,to.run afoul"of State, 486, N.E.2d 651• , 652 (Ind.App.198# « 4 s,,,,,cockfighting, bestiality, suicide, drug "the freedom'of speech [and] of the press"-` Thompson_v. State, 482 N.E2d 1372, 13 " - ' xprostitution, and sodomy. While there __ - traditional understanding of"the freedom of = ,_ oral and 'written -speech=not expressive :•. 1374 (Ind.App.1985); Adims v. State,.t,.; Y e great diversity of view on whether conduct"_ ':When any law restricts speech, speech" ,Public indecency-including public N.E.2d 740, 741-7.42 (Ind App.1984);Estate u • '.-sous of.these prohibitions.-should:"exist . • n. r .• R • • even for a purpose that has nothing to do • nudity-has long been,an offense at common Elliott,. 435 N.E.2d 302, 304 (Ind.App 1982) •i. gh I have'found few ready to abandon, with the,suppression• :of communication (for jaw.._:See-50 Am.Jur.2d Lewdness Indecen- Lasko v. State, 409.N.E.2d1124 '1126'Ind: % principle all of them),_there-is-_no_.doubt _ - ce noise see Sala v New -r instance to redu , cy, and Obscenity 449, 472-474 (1970), An- App.1980)2 2• ' • • '1 at,=absent specific constitutional protection - • - --Rs=1* 4., " :' i, York, 334_:U.S.,558,.561, 68 S.Ct,1148, 1150, •.1, ..�-,_. -inr=the conduct involved, the Constitution . --_ I. Respondents assert that the statute cannot be to contradict the first(though I think it does'not)'y=•".°-' - .; _' es ( g f :. 92 L.Ed. 1574 .0.948), to%regulate selection '. characterized as a general regulation of conduct, but it certainlydoes not waive or abandon:iLwId"i''1•_.. • �'es:=riot prohibit them simply because:whey s `' '�'�ate. "'morality." -See Bowers v. Hard- campaigns, see.Buckley v. Valeo, 424 U"S.1, unrelated to suppression of expression; because - any case, the clear purpose shown by bothethe ..•.-•. "- y' 16 96 S.Ct. 612 633, 46 L.Ed.2d 659 (1976)one defense put forward in oral argument below text and historical use of the statute cannot"be•_••°:�- ' ' " it 478 U.S. 186, 196, 106 S.Ct. 2841, 2846, + .. by the attorney general referred to.the"message refuted by a litigating statement in a single cash ?'I;Ed.2d 140 (1986) (upholding prohibition or to prevent littering,see Schneider v. State of eroticism"conveyed by respondents. But that • - 'IC �` `*" P g argument seemed to • +ofiii'ivate homosexual sodomyenacted solely (Town ofIrvington), 308 U.S. 147, 163, 60 ` gu go to the statute '- ?.. ' 41i'V. g �� 2. Respondents'also contend that the statute-.' ...-�r: +, «i resumed belief of a ma or1 -of the S.Ct. 146 84 L:Ed. 155(1939)) we insist that ' could constitutionally be applied to the present interpreted, is not content neutral in the express''*".Y •_'`r; .P J Y :,_ . . , , . performances, rather than to what was the pur- sive conduct to which it applies,since it allegedly ,77a-�• '' ' 'The pose of the legislation.' Moreover, the State's does not apply to nudity in theatrical"pi'oduc.;- e, ; +fie .dissent, post, at 2472-2473, 2475-2476, surprising, since the common-law offense, and ar ment below was in the alternative: (1) that dons. 'See State v.Ba sin er, 272 Ind.236;.24„' " ?' 4 misunderstands what is meant by the term `the traditional'moral prohibition, runs against ' Y g j >general law.". I do' not mean that the" law' public nudi not against all midi E. the statute does not implicate the First Amend- '397 N.E.2d 580, 587 (1979). I am riot•sure.that"' `restricts the targeted conduct in allplaces'at'aIl p Le g ty. g.nity __ g Am.Jur.2d, Lewdness, Indecency, and Obscenity, ment because it is a neutral rule not directed at theater versus nontheater represents a distinctiyo_ far ' 'y, times: A law is "general" for the present pur- § 17, pp.'472-474 (1970).) But that confirms, expression, and (2) that the statute in any event based on content rather than format, but:assum r,'• . oses'if it regulates conduct without regard to rather than refutes,the general nature of the law: survives First Amendment scrutiny because of ing that it does, the argument nonetheless'f? - : ,- • Whether that conduct is expressive. Concededly, One may not go nude in public;whether or not the State's interest in suppressing nude barroom for the reason the plurality describes,anted ,4i- . . -.Indiana bans nudity in public places, but not one intends therebyto conveya mesa a and dancing. The second argument can be claimed 2459, n. 1.' : ." ifi°.r o' ?x`'``r' , V.i,:?:Within the-privacy of the home. (That is not - g ' : . '" - �'s:- -' Cite as 111 S.Ct. 2456 (1991) it meet:the high; First-Amendment standard sign 383 U.S. 1 86 S.Ct.31, i4;' ''' 719,.15 , ... -;- g1 gout that conduct for proscription.". (1940) (Frank` :, J.) ("Conscientious scri>-of justiY '-',In. But virtually every law re- .637 (1966)• (participating in silent', ic, , • stricts i- . - •,ct, and virtually anCalifornia, - :'rv';U.S:, at 406, 109 S.Ct., at 2540-2541 pies have no-, _ =� the course of the long y y'prohibited Strombergv. 283 U.S.•359; " tsrnal quotation marks and citations struggle for religious toleration, relieved the conduct can,be performed for an expressive S.Ct. 532, 75 L.Ed. 1117 (1931) (flying -y -. tted; emphasis in original). individual from obedience to a general law purpose-if only expressive of the fact that flag).4 In each of the foregoing cases4' , ` "' not aimed at the promotion or restriction of the• actor disagrees with the prohibition. explicitly found that suppressing gomm ' ' . PP g our holdings (though admittedly not religious beliefs"). •There is even greater See,e.g., Florida Free Beaches, Inc. v. Mia- ton was the object of the regulation of;'7;f : ' '.'of our discussion) support-the conclu- mi, 734:F.2d 608, 609 (CAll 1984). (nude duct. Where that has not been the'``'' ', :that `.`the only First Amendment analy- reason to apply this approach to the regula- sunbathers 'challenging indecencylion of expressive conduct. Relatively few gi g public law however-where.suppression of conun _, •-applicable to laws that do not directly or claimed their "message" was that nudity is five use of the conduct was merely the:i>i¢ =; ��' y impede speech is the threshold in- can plausibly assert that their illegal conduct not indecent). It cannot reasonably be de- dental effect of forbidding the conduct=' " pure is being engaged in for religious reasons; but -1 of whether the ose o the law is to mended, therefore, that every restriction of other reasons-we have allowed the re 1",,, xess communication. If not, that is the almost anyone can violate almost any-law as expression incidentally produced by.a gener- tion to stand. O'Brien, supra, - P, a means of expression. In the one case,as in n, pra, 391.U S"., of the matter so far as First Amendment P -al law regulating conduct pass normal First 377 88 S.Ct., at 1679 (law bannin des „`= �, tees are concerned; if so, the court the other, if the law is not directed against • - Amendment scrutiny, or even-as some of lion of draft card upheld in a lica :'•' •a, roceeds to determine whether there is protected (religion or expression) p ppP. the value (reli 'on . our cases have suggested, see, e.g., United against card burning to pr st57s war); : "•'�1 :`.i tial'justification for the proscription." the law must be obeyed. ` States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. v. Superior Court Trial Lawyers Assn.;.- s'`y y� :` '� tnicnit for Creative No�Violenee::v. 1673, 1679,20 L.Ed.2d 672 (1968)-that it be U.S. 411, 110 S.Ct. 768, 107 L.Ed.2d_L8� i",• pp. C. 19, , • c stifed by an "important or su tenti�1� • u ,227 U.S.A D. 55-56 703 F.2d • III �++577 (1990) (Sherman Act upheld in application= ,:�.622-623 (1983) (en bane) (Scalia, J., dis • - government interest. Nor do our holdings . against restraint of trade to protest low a =,twig),-.(footnote omitted; emphasis omit- While I:do not think the plurality's conclu- - require such justification: We have never 'cf. United States v. Albertini, 472 U.S:6 . .F r, ,� rev'd sub nom. Clark v. Community for sions differ greatly from my own, I cannot invalidated the application of a general law 687-688, 105 S.Ct. 2897, .2905-2906 i `;: ve,Non-Violence, 468 .U.S. 288, 104 entirely endorse its reasoning. The plurality simply.because the conduct that it reached L.Ed.2d 536 (1985).(rule barring responi ent,`•_ % 3065, 82 L.Ed.2d. 221 (1984). Such apurports to apply to.this general law,insofar.was being engaged .in for..expressive, pur- from military base upheld in a lica'ou "6 .., government does not a regulates spthis allegedly expressive con- poses and the government could not demon- g PP ' -a'+'e.ensures.that the gu g y p a ainst:entrance on base to protests;' ;' '- . `to suppress communication, without re- duct, an intermediate level of First Amend- strate a sufficiently important state interest. Clark v. Community ``'' for Creative N.:9,a' -. ,;,,•+ -that all conduct-restricting regulation ment scrutiny: The government interest in This is not to say that the First Amend- fence, 468 U.S. 288, 104 .S.Ct...3065;. 1 'which•"means in effect all''regulation).sur-. the regulation must be "`important-or,.sub- ment affords no protection to expressive eon- L.Ed.2d 221 (1984).(rule barrin sled in 1, • i,` an enhanced level of scrutiny ` - . `' g P stantial,"' ante,.at 2461,_quoting .O'Brien;duct..,:Where the government prohibits,.Con- •parks.upheld in application against,pees�" - :'.---.: ' .'` ' .:--" duct precisely because its;communicative engaging in such conduct to dramatize x � r�'Cneve.explicitly adopted such.a regime s 391 U.S.,.at 377,88 S.Ct:,at 1679.:.As P I have in ated, .I do•not.believe such a attributes, we hold the regulation unconstitu- of homeless). As we clearlya ressed ,G 'angtfier:First Amendment context:,,that,of d tional.. See e. xP z a` �hei htened.:.standard.•exists. I think:!we g., United States'a Eich?nan, point in Johnson: _ n erase. In Employment Diu,Dept: of g - _ `' It. f uman Resources of Ore. u.Smith,.49.4 U.S. =should avoid wherever`possible,.moreover;;a 496 U.S.310,110-S.Ct.2404, 110-L.Ed 2d 287 "The government enerall has aF _ t e. ' (1990) (burniri fla Texas'v Johnsrestricting g y ;�-110 S.Ct. 1595, 108 L.Ed.2d 876.;(1990), method of analysis that requires judicial-as- g• g), on,:491 Band in expressive conductthan= _ ': u �- sessment of the `Im ortance •of government U.S. 397,:109 S:Ct. 2533, 105 L.Ed.2d 342 it has in.restricting the written.'oT''''' •=, ;,eld'that general laws not specifically P g ernment (1989) (same); Spence v. Washington;' ¢18 word. .It may not;:however,proscribe " .•ted at religious practices did not require terests-and especially of government°-iri= U.S. 405,` 94 S.Ct. 2727,_41;L.Ed.2d'.842.- .--titular conduct because it has expressly ned First Amendment•scrutiny'even . .terests in various. aspects`of morality.=,a: _ (1974) (defacing flag);` Tinker'v. Des Moines •elements. - What might be..termedo ' "` {;''" h they diminished some people's ability Neither of'the cases that the plurality"cites Independent Community School Dist.,J393 more generalized • e,their religion. The government s • g guarantee.:of freedo . - to support the "importance'.' of the Staters US.503,89eS.Ct. 733,21 L.Ed2d 731 (1969) - expression makes the communicative, 74.1',� to enforce generally applicable prohi- ,ns of sociall harmful conduct, like its interest here, see ante,. at 2462, is in point. • (wearing black arm bands);' Brown v. Lout- tore of conduct an inadequate`_b¢ssT"; .•�: y- -• - to carry out other•aspects.of. .public Paris Adult.Theatre I v. Slaton, 413 U.S.,:at smularl one mayp rp- ca tt • rn 'cannot 61, 93 S.Ct.,:at 2637 and.Bowers v. Hard= • Y go nude. in private, again engaged in for the u ose of communica+�:; 1__,•, , depend on measuring the of whether or not that nudity is expressive. '= idea,or perhaps an emotion,to someone e� - �_. of a governmental action on a red gioiis wick,.478 U.S.;.at 196, 106 S. .. , at 2846,,did am not sure whether dancing fits that d=s.i;w : -, ,� `'y ,,, uphold laws- : rohibitin private -conduct. 4. It is easy to conclude that conduct has been .tion,see Dallas v,Stanglin, 490 U:S. I9,-,24=1''- - Zpeetor's spiritual development. .Id.,-at ..PP g _c . _ _ forbidden because of its communicative attrib- S.Ct. 1591,-1595, 104 L.Ed.2d 18.(1989)_e �I''- • t: ' [110 S.Ct., at 1603], quoting'Lyn`q w. based on concerns.of decency and morality; utes when the conduct in question is what the dance group ''do[es] not involve the so '' tth`w but neither.o.opinion held that.those concerns Court has called "inherentlyex ressive,"'and . • mt)iwest Indian Cemetery ' Protective P P pressive.association that the First Amen, 4'. `'485'U.S.439 451 108 S.Ct.1319,1326, were: articular) "im ortant" or "substan- what'I would prefer to call "conventionally ex- has been held to protect").. .But.even if it;, ' -particularly P pressive"=such as flying a red flag. I mean'by 'this law is directed against nudity, "- see also Minersville tial" or.amounted to anything more than a g ty, not dancui&' : `Ed.2d 534 (1988) "that phrase (as I assume the Court•means by �=�'�' "inherently expressive")conduct that is normally Nudity is not normally engaged in for,tI e' .. lio0l District v. Gobitis, 310 U.S. 586, 594- rational basis for regulation. .Slaton in pose of communicating an idea or an emotion' .`''?_,60:S.Ct. 1010 1012-1013, 84 L.Ed.,1375 volved an exhibition-which, since it was'.ob- - '''',,,41.-; • • '; 111 SUPREME COURT REPORTER O1 U 5s4 BARNES v: GLEN THEATRE, 2469 =ix �'wl Cite as 111 S.Ct.2456 (1991) scene and at least to some extent public,.was tion or feeling, and where the dancer is ,'ent establishments of the sort typ- the State's enforcement of the statute against - un unprotected bythe First Amendment, see or nearlyso the feeling expressed, ';• ""; p g P , in" ,{by respondents' establishments. the type of adult entertainment at issue here. Roth v. United States; 354 U.S. 476, 77 S.Ct. absence of some contrary clue, is erotica =w--',=t is,,: .. ' 1304; 1 L.Ed.2d 1498 (1957); the State's pro- carrying an endorsement of erotic ''`; >'. of course, true that this justification At the outset,.it is clear that the preven- • hibition could therefore be invalidated only if ence. Such is the expressive content of:'4 tic:',.:not-been articulated by Indiana's Legis- tion of such evils falls within the constitution- it had no rational basis. We found that the ;•_,;�"`or by its courts. As the plurality al power of the State,which satisfies the first dances described in the record. State's "right ... to maintain a decent soci- '"- Wives,"Indiana does not record legislative O'Brien criterion. See 391 U.S., at 377, 88 ety"provided a"legitimate"basis for re la- Although suchperformance dancin.1 `j „i. 'and the State's highest court has not S.Ct., at 1679. The second O'Brien prong � � g g ' a ..�..�'� . "furthers as to obscene material viewed by herently expressive, nudity per se is nod" 4 •9 additional light on the statute's pur- asks whether the regulation an im- consenting adults. 413 U.S., at 59-60, 93 is a condition, not an activity, and the''r4 pase,"saute, at 2461. While it is certainly portant or substantial governmental inter- S.Ct., at 2636-2637. In Bowers, we held that tary assumption of that condition, wi I`�in such circumstances to infer general est." Ibid. The asserted state interest is since homosexual behavior is not a funds- -.. I``i; ,Ages "of protecting societal order and plainly a substantial one; the only question is more, apparently expresses nothing be. : t ', .,. -_ mental right, a Georgia law prohibiting pri- the view that the condition is somehow - . from [the statute's] text and whether prohibiting nude dancing of the sort vate homosexual intercourse needed only a `..�µ 1 r-" ibid., I think that we need not so at issue here "furthers" that interest. I be- rational basis in order to comply with the propriate to the circumstances. But .:_ p Y voluntary act implies some such idea,and�` �'•�r°elves in identifying the justification lieve that our cases have addressed this L Due Process Clause. Moral opposition to d.-. p .,fie legislation at issue here,. and may •question •sufficiently to establish that it does. implication is thus so common and �•. homosexuality,we said, provided that ration- p ., 4' that calling all voluntary activity expr ' Lately consider petitioners' assertiont In Renton v. Playtime Theatres, Inc., 475 al basis. 478 U.S., at 196, 106 S.Ct., at 2846. r_ `.tlie.statute is applied to nude dancing I would uphold the Indiana statute on pre- would reduce the concept of expressio> ;# " U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986), us�esuch dancing encourag[es] prostitu- cisely the same ground: Moral opposition to the point of the meaningless. A search:', ii j'c we upheld a city's zoning ordinance designed 5 k mcreas[es] sexual assaults, and at- ar to prevent the occurrence of harmful second- nudity supplies a rational basis for its prohi- some expression beyond the minimal.ink. sT`other criminal activity." Brief for bition, and since the First Amendment-has choice to go nude will often yield not •`� i z ,. •oners 37. ary effects, including the crime associated rio application to this case no more than that person may.choose nudity, for example; ;,•_'7,•' . �,.'.- . .• with adult entertainment, by protecting ap- is3' t' asserted ustification for the statute proximately 95%.of the city's area from the needed. .... maximum sunbathing. But when nudity*; - 1 . r"- ` not bebecause it isplacement of motion picture theaters empha- .. -* * * `" combined with expressive activity,'its s��,�. ...,. �n_, ignored merely -_ : »:: a ' • •"=` extent this.purpose motivat- sizing"`matter depicting,describing or relat- _ �"" lative and.attractive value cent ' c,->> �:J,�;to what '. Indiana'may_.constitutionally enforce-its hance the force of expression, and a d `', __ Indiana L-egislature'in,enacting the ing to."specified sexual activities or .speci- prohibition "of public "nudity• even against ' ' p ' atnte0ur appropriate.focus is: not. an fled anatomical areas" ... for observation by acts m going from clothed to nude,. as`m• - -:.z,:,., . _ _ • _ those who choose to use public nudity as a - _�'=•` , ��mi cal,enquiry into the actual intent.of the patrons therein.'7 Id.,- at 44, 106 S.Ct.,.at striptease;`are integrated into the dance ial)il means of communication. The State is regu- its e. ressive function: 'Thus.•I•a ,---',1-•tlr r ;,g legislature, but rather the existence 927. Of particular importance to the,present lating conduct,not expression,and those_who gT . ,fac.not-of a current governmental interest:in enquiry,we held that the city of Renton was choose to employ co�uct si as-a:means' of the:plurality and the dissent that an interest ,_rT - a rvice of which the"challenged ap• . not compelled to justify its restrictions,by r in freely'engaging in the nude dancin s- :x t1.,'° expression must;make sure that the conduct g i g g :4.,....rof_the statute may be constitutional. Cf. studies specifically relating to the problems :.x y issue here is subject to' a degree `of•, ...- i an`v. Maryland, 366.U.S. 420,'81 - that would be caused by_adult theaters in __they_select_is__not_generall forbidden:_::For __ = _ these. reasons,.I agree that. the judgment. Amendment protection. 4 •-„SCt..`1101,6 L:Ed.2d 3933 (1961) At'least that city. Rather, "Renton was entitledto _ should be reversed.,• ,, ,:, ;- thepluralitythat I Wthe`r• egulation of expressive conduct,i rely on the'experiences of Seattle and other ,,-; _ �,2I also agree with , � a• r1edecline to void[a statute] essentially`on cities," id., at 51, 106 S.Ct:,.at 931,.which Justice SOUTER, concurring in the judg- appropriate analysis to determine the;ad :- - a'ound that it is unwise legislation which demonstrated the harmful secondary effects ment. protection required by the First Amen!!.:., .;R. „ } is the four-part enquiry described in U i' , y legislature] had the undoubted power to correlated with the presence of even one Not all dancing is entitled to First Amend- r, ;';Viand which could be reenacted in its [adult] theater in a given neighborhood." _ Amend- .. protection as expressive activity. 'This States v. O'Brien, 391 U.S.367,88 S.Ct :1 °. ; =!;;' ':form if the same or another legislator Id., at 50, 106 S.Ct., at 930; cf. Young. v Court has previously categorized ballroom 20 L.Ed.2d 672 (1968), for judging the e a 'wiser' speech about it" O'Brien, American Mini Theatres,.Inc., 427 U.S.-50, - - dancing as beyond the Amendment's protec- of appropriate state action burdening s_stlit, 391 U.S., at 384,88 S.Ct., at 1683. In 71, n. 34ii 96 S.Ct. 2440, 2453, n. 34, 49 -- tion, Dallas v."Stanglin, 490 U.S. 19, 24-25, _ sive acts as distinct from pure spee• ntg�ew,.the interest asserted by petitioners L.Ed.2d 310 (1976) (legislative finding that"a 109 S.Ct. 1591, 1594-1595,"104 L.Ed.2d 18 representation. I nonetheless write: preventing prostitution,sexual assault,and concentration of`adult'movie theaters causes (1989),and dancingas aerobic•exercise would rately to rest my concurrence in the ;; , her:criminal activity, although presumably the area to deteriorate and become a focus of ' likewise be outside the First--Amendment's ment, not on the possible sufficiency of sod _f:4n0t a justification for all applications of the crime"); California v. LaRue, 409 U.S.:109, concern. But dancing as a performance di- ety's moral views to justify the limitations 't e,.is sufficient under O'Brien to justify 111, 93 S.Ct. 390, 393, 34 L.Ed.2d 342 (1972) +oA tn an'artnal nr hvnnthatiral anrlianra issue. but e_ but on the State's substantial lri . . -__ _._ -_ —_•., 111 ,ournhlvlj COURT REPORTER = 501`:• - BARNES- °v GLEN THEATRE, INC. 2471 (a1! itrative findings of criminal activity suppression of free expression, �1F� yK Cite as ill S.Ct.2456(1991) as: ed with adult entertainment). xP ' = `, 'use the State's interest.in' banning little discus Pasties and_a G-string 377, 88 S.Ct.,••at 1679, and, on its.f Y`., _ ; '-:_fi The 'type of-entertainment respondents governmental interest in combating _ ctng results from a simple correla- moderate the expression to some degree,.;to seek to provide is plainly of the same charac- _ �' lion and other criminal activity P ;': such dancing with other evils,rather be sure,but only to a degree.- Dropping the is no •' final stitch is rohibited, but the limitation.is ter as that at issue in Renton, American inherently related to expression.• z,from a relationship between the other P • The., ja the expressive component of the minor when measured against the dancer's Mini Theatres, and LaRue. It therefore is sent contends,however, that Indiana's-::., �'(-' remaining capacity and opportunity to ex- no leap to say that live nude dancing of the regulate nude dancing as its means of u'g;,1e interest is unrelated to the sup- . on`of free expression. Renton is again press the erotic message. Nor, so far as we sort at issue here is likely to produce the bating such.secondary effects "becan e; are told,is the dancer or her employer limit- same pernicious secondary effects as the creating or emphasizing V ;. �� n'e in support of this conclusion. In ed by anything short of obscenity laws from adult films displayingP g [the] though{ ; ;� ';- we held that an ordinance that sego= "specified anatomical ideas [expressed by nude dancin " ` "'.,id-i'": expressing an erotic message by articulate areas" at issue in Renton. Other reported minds of the spectators may lead.:ytA`' _'':adult theaters because the presence of speech or representational means; a porno- cases from the Circuit in which this litigation . creased prostitution," '{�ieaters was correlated with secondary graphic movie featuring one of respondents, arose confirm the conclusion. See,e.g., Unit regulation of expressive onduct7beca .;�� +' sZthat the local government had an for example,was playing nearby without any ed States v. Marren, 890 F.2d 924, 926 (CA7 the fear that the expression will prove,` - ' in regulating was content neutral (a interference from the authorities at-the time 1989) (prostitution associated with nude suasive is inherently related to the su r ~•• .,��,,� -•,.a �� ation similar to the "unrelated to these cases arose. dancing establishment); United States a PPS { `sc�Y Sion of free expression. Ibid. ,"a�"°,;� =ar ,'�suppression of free expression" determi- �Doerr, 886 F.2d 944, 949 (CA7 1989) (same). ' Accordingly, I find O'Brien satisfied and There, see Clark v. Community for In light of Renton's reco lion that legisla- major premise of the a dissent's, • '.�vconcur in the judgment.g gal gi The '' a NoViolenee, 468 U.S. 288, 298 - tion seeking to combat the secondary effects_ mg may be correct but its mino•r ' 1: 8, 104 S.Ct. 3065, 3071, and n. 8, 82 of adult entertainment need not await local- describing the causal theory of Indiana``" _ d 221 (1984)) because it was justified ' Justice WHITE, with whom Justice ized proof of those effects, the- State "of ulatory justification is not. To sa tlia;.;,.,, u yreference to the content of the rev :- • MARSHALL, Justice BLACKMUN, and • Indiana could reasonablyconclude that for- vicious secondarycia • '` t speech." 475 U.S., at 48, 106 S.Ct.,_,at Justice STEVENS join, dissenting. ' effects are associa ' t - .. ..; ' bidding nude entertainment of.the,type of- nude dancing establishments is not ne • `, emphasis in original). We reached this The first question presented to us in--this fered at the Kitty Kat Lounge and the Glen ly to say that such effects result gic-n- ;"1on:;:without need to decide whether- - f,� • Theatre's bookstore furthers its interest in u sir' case is whether nonobscene nude dancing « n persuasive effect of.the expressioririili '"x = ' =e of,the correlation might have been preventing prostitution, sexual assault and performed.as entertainment is expressive in nude dancing. It is to sayrath ,; i'a uasive effect of the adult films that conduct protected by.the First Amendment associated crimes. Given•'our recognition that the effects are correlated with 4- rein re ated. .,Similarl here, e ; '• that"society's interest-in protecting this a g' y The.0 oust of Appeals held that it is, obsery • - of expression is of,.a,.wholl tence of establishments •offering su `� y different, and ch r dary effects"'justification means;that that our prior decisions permit no other lesser, m• agnitude than 'the`interest u 'un- fig'without decidingwhat the reds W`{3. - 't'ti,,•ment of the Indiana statute a ainst • p _ g conclusion.: Not.surprisingly,.then„the,plu •"`" of the correlatiosactually •are It :..'` „ ncin without trammeled political debate,"American Mini P g is ."justified wi out reference rality now concedes::that "nude dancing of '``` Theatres supra, ble,forexam le that the higher inci� �1 "content •of the regulated [expression]," the kind-sought ,to be performed here;;is 427 US., at 70, 96 S.Ct., at . 2452, I do not believe that a State is required prostitution and sexual assault in the' ,r z- Jh Y • feniphasis omitted), which is.sufficient, expressive conduct within the outer perime- affirmativel to undertake to litigate this is ?�. �;y t= •the context- of sexually .explicit ters of the First Amendment...:" -Ante,:at - '`. y of adult entertainment locations results;.= sue repeatedly in ever' the concentration of.crowds of:men p =. " slori,3 to satisfy the third prong of the 2460.—T-his-is.no-more than recognizing,,as case.'-me _ . as applied to nudity of the sort at issue here posed to such activities, or from-the=+ - 1 • •test.. - is• the Seventh Circuit:observed,-that dancing.' therefore "satisfies the 'second ron of viewing of nude bodies regardless of , '= dies an ancient art form and"inherently embodies OBreen.z p- g - those bodies are engaged in e •= 'a =A t "e;fourth O'Brien condition, that the the expression and communication of ideas s ;- coon.:be no eater than essential to and emotions." Miller v. Civil Cityo South not. In neither case would the f .= • The third O'Brien condition is that the causation run through the r. the governmental.,interest;requires Bend,.904 F.2d 1081, 1087 (1990) (en banc)1 per governmental interest be "unrelated to the of the expressive co ponent of nude.?= ., �~ ch this conclusion again mindful, as'was the better view: "Dance has been defined as'the . • ?. Because there is no•overbreadth challenge be- ' o in Renton, that the protection of sexu- art of moving the body in a rhythmical way, us, g 106 S.Ct. 925, 89 L.Ed.2d 29 1986.HItts••'' �exp t expression may be of lesser societal usually to music, to express an emotion or•idea, • fore p is are not called upon to decide whether P ( )-_-:-, srr•-.... the application of the statute would be valid in cult to see, for exam le,how the enfor - "��'',ttattce than the protection of other forms of •to narrate a story,or simply`to take delight in the other contexts.-.It is enough,then,to say that the Indiana's statute against nudity'in'a p Z` •.• rN` esston. See Renton, supra, at 49, and n.2, movement itself.'• 16 The New Encyclopedia Bri- secondary effects rationale on which I rely here • of"Hair"or"Equus"'somewhere others•r'+' '` �Ct 'at '929, and n. 2,'citing'Young v. tannica 935(1989). 'Inherently,it is the comma- `would be open to question if the State were'to "adult"theater would further the State'sc. "`".'- ' t"'an' aii Mini Theatres,Inc.,427 U.S.50,70,96 nication of"emotion.or ideas: At the root,of`all ' seek to enforce the statute-by barring expressive in avoiding harmful secondary' effec :"; C}02440 `2452, 49 L.Ed.2d 310 (1976).. '[t]he varied manifestations of dancing.....:.:lies ` nudity in classes of productions that could not absence of evidence that expressive'n` '':'•_ rc' I' P readily be analogized to the adult films at issue the common impulse to resort to movement to side the context of Renton-type adult y ' ` Abe_•-'SCALIA suggests that performance externalise states which we cannot externalise by in'Renton v.Playtime Theatres,Inc.,475 U.S.41, " ment was correlated with such second'ai}5"- ciiig is not inherently expressive activity,`see rational means. ''This is basic•dance. Martin,T. s✓. -t1 ,3at 24/,A ., t 1,,,t tha rnn,-t ne A,,,,,.,1,}Inc • T tmA,,rtinn to tiw fl,,nr (19391_ Aristntl, rec.- 2472 111 SUPREME COURT REPORTER 501 U. ,--; - 'ii W. 592 BARNES v. GLEN THEATRE, INC. Z4`/3 • Cite as 111 S.Ct.2456 (1991) J Ha' rrived at the conclusion that The plurality's analysis is erroneous "'" told by the attorney general of the purpose.o, venting nude dancing in nude di i r , performed as. entertainment eral respects. Both the plurality and J'::: that, in State v. Baysinger, 272 Ind. theaters and barrooms since the viewers are enjoys First Amendment protection, the plu- SCALIA in his opinion concurring '''- N.E.2d 580 (1979), the Indiana Su- exclusively consenting adults who pay money. rality states that it must"determine the level judgment im.� ,'397 overlook a fundamental and: '� ��;e Court held that the statute at issue to see these dances. The purpose of the of protection to be afforded to the expressive aspect of our cases upholding the..cnttp� prohibitnudity proscription in these contexts is'to protect P p g g :`,_ "-,`z• cannot and does not as a conduct at issue, and must determine wheth- exercise of their police powers. None,o` ,` • -'"'f some larger form of expression merit- the viewers from what the State believes is er the Indiana statute is. an impermissible cases they. relyupon, including0'B • ', " '` tection. when the communication: of the harmful message that nude dancing corn- infringement of that. protected activity." Bowers v. Hardwick, 478 U.S. 86, 10 ` involved. Brief for Petitioners 25, municates. This is why Clark v.-Community . Ante, at 2460.. For guidance, the plurality 2841, 92 L.Ed.2d 140 (1986), involved'- - :- ,` "•Reply Brief for Petitioners 9-11. .Pe- for Creative Non-Violence, 468 U.S.288, 104 turns to United States v. O'Brien, 391. U.S. less than �' � V., ors also state that the-evils sought to be S.Ct. 3065, 82 L.Ed.2d 221 (1984), is of no thing truly general proscriptions np• applying the statute in this case 367, 88 S.Ct.-.1673, 20 L.Ed.2d 672 (1968), individual conduct. In O'Brien, for exam ' r'-led by help to the State: "In Clark ... the damage •,- • ".d not obtain in the case of theatrical which held that expressive conduct.could be individuals were prohibited from destroym�;� .� :, to the parks was the same whether the sleep- narrowly'regulated or forbidden in pursuit of their draft cards at any time and in' ,coons, such as "Salome" or "Hair" ers were camping out for fun, were in fact an important or substantial governmental in- place, even in completely private places ?t=at`11-12. Neither is there any evidence homeless, or wished by sleeping in the park forest that is unrelated to the content of the as the home. Likewise,in Bowers, the a State has attempted to apply the to make a symbolic statement on behalf of expression. The plurality finds that the prohibited sodomy, regardless of who`rer• '� `to nudity in performances such-as the homeless." 904 F.2d,at 1103(Posner,J., diana statute satisfies the O'Brien test in conduct might occur, including the home ' t �''; 'ballets,.or operas. "No arrests have concurring). That cannot be said •in•this all respects. - . - a been made for nudity as part of a play case: The perceived damage to the public -was true in that case. The same is truea :et."" App. 19(affidavit of Sgt.Timothy The plurality acknowledges that it is.im- cases like Employment Div., Dept, of,,:e'%'- ,,__ =' interest caused by appearing nude on the man Resources ofOre. v. Smit ,, `.ti) streets or in the parks, as I have said,is not possible,to discern the. exact state interests 4U'' which the Indiana Legislature had in.mind 872, 110 S.Ct. 1595, 108 L.Ed.2d 876;t1' I -. -4r'us,,the Indiana.statute is not a general what the State seeks to avoid in preventing when it enacted the Indiana statute, but the which, though not applicable here beca€34.1s' --` ,ition. of the type we have upheld in nude dancing in theaters and taverns. There - n5t,, plurality•nonetheless concludes that dt is did not involve any claim that"the`pe'.!'s•- ,a,'' cases. Asa result, the plurality and the perceived harm is the communicative as- users were engaged' in e r ' {' ' .:.ce;SCALIA'.s simple references;to the pect of the erotic dance. As_the State now clear from'the statute's text and history thatxp essive'a ' the law's purpose is to protect"societal order recognized that'the State's interest`i �: "'`-'s general interest in promoting societal tells-us, and as Justice SOUTER agrees,the and morality."•'Ante, at 2461. The plurality venting the use of illegal drugs extends`i"; � and morality are,not sufficient justifl- State's goal in applying what it describes,as i#` r ,- ,,`forr a statute which concededly reaches its "content neutral" statute to the nude goes on to yconclude that Indiana's statute_ into the home. •By contrast;"in this?�w , •4`f - "was enacted as ageneral. ohibiti " -"'� ..••u'•'cant.amount of.protected expressive -dancing in:this case is "deterrence of prosti- pr on;• `ante,. Indiana does'not 'suggest that RAI? , �,1 ;� :�. , Instead, in applying the O'Brien tution, sexual assaults, criminal activity, deg= -. - at 2461(emphasis added), on people appear- applies to, or could be applied'to "i;t% -'rm‘.,� .. ing in the nude among strangers in public wherever it occurs, including the home L ._ are obligated to carefully px mine radation of women, and other activities whieh - . ons the State has chosen to regulate •break down family structure." Reply Brief z':- places.' The plurality then points to eases in do not`understand the plurality oiVadioe- 4= x. expressive conduct in a less than general ' ' .. . ,. . for Petitioners 11. The attainment of these which`we upheld legislation based on the SCALIA to be suggesting that Indiana couldx,_. ,i-i-;:. .In 'ether words, when the State •- State's•:police power, and ultimately con_ constitutionally enact such an intrusive.p -. --- 1 goals, however,'depends on preventingan u :a aw which draws a line between :. ;+:;u • eludes`that the Indiana statute "fiirthers`=a _- bition,-nor do .we_think such_a_Suggasttan. • expressive activity. slue •.conduct which is regulated and - --- - ----- - --- -•-- -- y�_ — substantial government interest in protecting would be tenable in light of our decisio's f "r f 'a Iressive: conduct• of the same.ttype :.The plurality nevertheless holds that the Order. and morality." 'Ante, at'2462.-`'The Stanley v. Georgia, 394 U.S. 557, 89.E iF -_-_: T=` placesthird requirement of the O'Brien test, thate� ` .his not regulated,. O.Brien :the _ Court also holds that the basis for"banning 1243,22 L.Ed.2d 542(1969),in which'wertield•,,. ;-, on the State to justify the distinctions the governmental interest. be unrelated'_to nude dancing is unrelated to free expression that States could not-punish the mom • s inade.. Closer inquiry as to the pur- the suppression of free expression, is sans= and that it is narrowly drawn to serve the possession of obscenity in the privacy fr- �<' F,of,,the statute. is surely appropriate. fled because in applying the statute to nude T , State's interest. :i -` one's own home. . • :Y': � '�_t�- dancing, the State is not" roscribin nudi :.,,rt lators do not just randomly>.select p g ognized in Poetics that the purpose of dance is'to L.Ed.2d 18 (1989), but that decision'dealc,:i,�.'' . • because of the erotic message conveyed.by L -- •' 'conduct for proscription; they have .• represent.men's character,as well as what they social dancing, not performance dancitig.- _.,.=ns for doing so''and those reasoii5 lllu- the dancers." Ante, at 2463. The plurality -do and suffer.', ,The raw communicative power the submission in that case, which we lei—'-,' F+- " ' su ests that this is so because the State - of dance was noted by the French poet Stephane was not that social dancingwas an.e •the purpose of the law that is passed. gg :s:, xP--'- r-::,z.- gactivityp a law may have multiple purposes. does not ban dancing that sends an erotic- Mallarme who declared that the dancer'writin but that laiittiffs associatiotzal c „,-•-, with her:•body .,.-suggests things which'the were violated byrestrictingadmission ta-'•'~.' 'p pose off forbidding people to'ap- message, it is onl nude erotic dancin that - written work could express only in several Para- halls on the basis of age. The Justice also.•,r`,`•• F'_.:- • of dialoguedescriptivep a. ,• '�' nude in parks,-beaches,'hot deg Stands, is forbidden. The perceived evil is not erotic • graphs or rose:7 904 that even if dancing is inherently expres0ii; " i f.;- y b ,G like public places, is to protect others dancing but pub�ic592 nudity,.which may be • F.2d,at 1085-1086. Justice SCALIA cites Dallas dity is not. The statement may be true;;. '' v. Stanglin, 490 U.S. 19, 109 S.Ct. 1591,..104 tells us nothing about dancing in the nitde` , '.offense. But that could not possibly be prohibited despite,any incidental impact:on 2474 111 SUPREME COURT REPORTER 501 Ti• ?'' BARNES v. GLEN THEATRE, INC. 2475 [Ig. 595 Cite as 111 S.Ct.2456 (1991) expri activity. This analysis. is trans- ity, apparently on the assumptiondetermining parer__; rroneous. ing or emphasizing such thoughts and ,yd not be the factor in de- establishmc. is the most worrisome prob- „g this case. In the words of Justice lem, the State could invoke its Twenty-first In arrivingat its conclusion the luralit in the minds of the spectators may:[�-,:- n , ,"[I]t is largely because governrrren- Amendment powers and impose appropriate plurality increased prostitution and the degradatio>t officials cannot make principled regulation. New York State Liquor Authori- concedes that nude dancing conveys an erotic women. But generating thoughts,ideas, `,, t'o213594 in this area that the Constitution ty v. Bellanca, 452 U.S. 714, 101 S.Ct. 2599, message and concedes that the message emotions is the essence of comet, indea�' stylelargely 69 L.Ed.2d 357 (1981) (per curiam); Cali or- -••es matters of taste and so lar el to f would be muted if the dancers wore pasties The nudity element of nude dancing; , individual." Cohen v. California, 403. nia v. LaRue, supra.. and G-strings. Indeed, the emotional or - erotic impact of the dance is intensified by mantes ca ,t$r lota93 be neatly pigeonholed A- 15, 25, 91 S.Ct. 1780, 1788, 29 L.Ed.2d q the_nudity of the performers. As Judge mere "conduct" independent of any •: +'_ "(1971). "[W]hile the entertainment af- j As I see it, our cases require us to '-1 sive component of the dance.z �r i , ,ed by a nude ballet at Lincoln Center to affirm absent a compelling state interest sup- Posner argued in his thoughtful concurring :;•?,*; ,;; `:`who can pay the price may differ vastly porting the statute. Neither the plurality opinion in the Court of Appeals,the nudity of That fact dictates the level of ,=o itent(as viewed by judges) or in quality nor the State suggest that the statute could • the dancer is an integral part of the emotions Amendment protection to be accorded=. :viewed'by critics), it may not differ in withstand scrutiny under that standard. and thoughts that a nude dancing perfor- performances at issue here. In T m.: by p exact �,: .ice from the dance viewed the er- Justice SCALIA's views are similar to mance evokes. 904 F.2d at 1090-1098. The Johnson, 491 U.S. 397, 411-412 109:.j�4 ,•l who. ... wants some`entertainment'with sight of a fully clothed, or even a partially 2533, 2543-2544, 105 L.Ed.2d 342�(1989):. 9"`beer or shot of rye." Salem Inn, Inc. v. those of the plurality and suffer from the clothed, dancer generally will have a far dif- Court observed: "Whether Johnson's ;�y, t 7nk'501 F2d 18,21, n.3 (CA2 1974), aff'd• same defects. The Justice asserts that•a Brent-impact on a spectator than that'of a ment of the flag violated Texas lav .fit :_.part sub nom., Doran v. Salem Inn, Inc, general law barring specified conduct does nude dancer, even if the same dance is per- depended on the likely communicative,imparct ��;ZT,S..922, 95 S.Ct. 2561, 45 L.Ed.2d 648 not implicate the First Amendment unless formed. The nudity is itself an expressive of his expressive conduct.... We=°',„:> '' ..,:,..S.. Vic.: the purpose of the law is to suppress the component of the dance, not merely inciden- therefore subject the States asserted.'T,:- s•e plurality and Justice SOUTER do not expressive quality of the forbidden conduct, tar conduct. We have previously •ur and that, absent such purpose, First Amend= " pointed est in preservingthe special s bolic, ,�� L yet .-beyond saying that the state interests out that"`[n]udity alone' does not place'oth- ter of the flag to the most exacting s w�"•„k" ? -.�'a. •d here are important and substantial. meet protections"are not•triggered" simply erwise protected material outside the mantle Boos v. Barry, rev compellingbecause the incidental effect of the law is to 485 U.S. [312], 32Y;�108;5'�� seven if there were tom ellin interests, proscribe conduct that is unquestionably ex- '..•- of the- First Amendment" Schad v. Mt. 1157, 1164; 99 L.Ed.2d 333] [(1988)] :2r, • ��-••a statute is not narrowly drawn. �r Ephraim,, 452 U.S. 61, 66, 101 S.Ct. 2176, tent based restrictions "will be u held', r + t> le;-•State is genuinely concerned with pressive. Cf. Community for Creative Now P `tlition and associated evils, as Justice Violence v. Watt, 227 U.S.App.D.C. 19, 703. 2181, 68 L.Ed.2d 671 (1981). "- narrowly drawn to accomplish'a•tom,••i, . -',' governmental interest?' United S.,0,:L ?A , ,' seems to think, or the type._of F.2d.,586, 622�23 (1983) (Scalia, J.,�dissent- = -.:This being the case, cannot be that-theCaliforniahe a hcation of the Justices ro o- brace, 461 U.S.'171; 177, 103 -S:Ct: - ;,l ue that was occurringin v. ing)• PP P P statutory prohibition is unrelated to expres- 1707, 75 L.Ed2d 736 (1983); Sable Ci_ • , •ue,' 409 U.S. 109, 93 S.Ct. 390,;;-34 sition to this case is simple to state: The . ;_ sive-,conduct. - Since the State permits.the .�, -.V d2d 342 (1972), it can adopt restrictions statute at issue is a general law banning , dancers to, erform if they • • nications of Cal., Inc. v. FCC,492 US'•a 1.;• p P wear pasties;aiid '•° .;.,1,do not interfere with the expressiveness nude appearances in public places,.including Gstrin but forbids,nude dancing, 126, 109 S.Ct. 2829, 2836, 106 h �'. , .w, gs it,is pre- (1989). -Nothing could be clearer'fipm: ,orobscene nude dancing performances. barrooms and theaters.. There is no showing .. ,tisY••_l i 1.1� �i- ' cisely,because of the distinctive, expressive , _ .-.•.=, 17-instance,the State could perhaps require that the purpose of this general law was.t0 content of the nude dancing performances• ;at cases. ;;a .,Y.. ; u°z " •lwhile performing, nude performers`re- regulate expressive conduct hence,the First _-_ _ issue in this case that the State seeks'to .'That,the performances in die-S_i •� ,,r at-all times a certain minimum distance Amendment is irrelevant-and nude dancing- • - - `- apply the statutory prohibition.' -It is-only. Lounge may not be high'art,to say the '., , }1 "spectators that nude entertainment be in theaters and barrooms may be forbidden, - _ because nude.--dancing performances _may and may not appeal to the Court,iss •y-,i' •:.:,�'•t1 to certain hours, or-even that estab- irrespective of the expressiveness of the -e• ,:;-' ',IW tints providingsuch.entertainment be dancing. 1t generate emotions and feelings of.eroticism excuse for distorting and ignoring' ,�... g - and sensuality among the spectators that the doctrine. The Court's assessment of--the ed throughout the city.,.Cf.Renton v.State seeks to regulate such expressive activ- tistic merits of nude dancingerfo`+- •-' `t i .Theatres, Inc., 475. U.S. 41,, 106 As I have pointed out, however,the preen- P 7Gt'r925, 89 L.Ed.2d 29 (1986). Likewise, ice for the Justice's position-that the statute 2. Justice SOUTER agrees with the plurality that the State desires to regulate the State'd; ' •-` is ageneral law of the type our cases con: - �" - ' -'EState clearly has the authority to erimi- , the third requirement of the O'Brien test is satis- have even a rational basis for its absolute€ `l��='__prostitution and obscene behavior. template-is nonexistent in this case. Refer- fied,.but-only because he is not certain that there bition on nude dancing that is admittedly-';--: , is a causal connection between the message con- sive: Furthermore, if the real probleiii -''1-' 'g an entire category of expressive ac- ence-to Justice SCALIA s own hypothetical ve ed b nude dancingand the evils which the "concentration of crowds of men predis• .*=' till' Wit' ',tilweove.r,:erneegruiralleymdeonets not satisfy the y y Lmakes this clear. We agree with Justice • State is seeking to prevent. 'See ante, at 2470. the designated evils,ante,at 2470,then th y'""'= g" ax ;,, of strict First SCALIA that the Indiana statute would not Justice SOUTER's analysis is at least as Flawed as Amendment requires that the State address";r! �•�,iendment scrutiny. See Frisby v. Schultz, permit 60,000 consenting Hoosiers to expose that of the plurality. If Justice SOUTER is tor- problem in a fashion that does not-inchik " y,11.S. 474, 485, 108 S.Ct. 2495, 2503, 101 themselves to each other' in the Hoosier rect that there is no causal connection between ping an'entire category of expressive"ac'„, ; C: the message conveyed by the nude dancing'•at See Renton v. Playtime Theatres, Inc.,"475` d.2d 420 (1988). Furthermore, if nude Dome. No one Can doubt, however, that •"11c1• .the here and the negative secondary effects that -: 41; 106 S.Ct. 925, 89•L.Ed.2d 29 (1986):'{,; ' "'lIC1Ilg in barrooms.as compared with other those same 60,000 Hoosiers would be perfect- —_- _ !�r=C_ .i _ YY1 AJiloart rUDLLV uILA:i%•..+". ....a.. -�..a... rzU I- v' -%' _ _ - Clte as 111 S.Ct.2476 (1991) q',:. - I` a to drive to their respective homes all - =a-:. Indiana and• , once there, to parade 501 U.S. 597, 115 L. • E•.• t y Congress touches field in.which 6. Agricula9.12(2) • ,: around, cavort, and revel in the nude for �s7WISCONSIN PUBLIC '_z. .7 - i'niterest is so dominant that federal Municipa Corporations a53 -----:—.be assumed to preclude enforce- • hours in front of relatives and friends. 'It is et al., Petitioners 4 ,l' - No conflict existed between the Federal • difficult to see why the State's interest in Y. .;3state laws on same subject, or if Insecticide, Fungicide, and Rodenticide Act morality is any less in that situation, espe- v. '` �2 gut:to be obtained and:obligations (FIFRA) and local ordinance establishing • ` -rpurpose topreclude state au- cially if, as-Justice SCALIA seems to sug- k` • reveal permit scheme for actual use of pesticides; Ralph MORTIER et`at: - S.0 A.•Const.'Art. 6, el 2.. Act implied regulatory partnership between . gest, nudity is inherently evil,but clearly the ;,- ::� .:.;,, P• gu rY statute does)snot reach such activity. As No. 89-1905. 'r;: 4*• �'-'�''•�`• • - federal, state and local governments and • c�18.5 we pointed out earlier, the State's failure to R:° ��• there was_no indication in Act that Congress enact a truly general proscription requires Argued April 24, -1991a+: t - ' '.:`when Congress has not chosen to felt local ordinances rested on insufficient closer scrutiny of the reasons for the distinc- -. .w %'tpreemption mayoc- expertise and burdened commerce. Federal lions. the State has drawn: See supra, Decided June 21, 199 '.'-.:,- - _ ,, cular field, p a,.at 1 nt that state and federal law actu- Insecticide, Fungicide, and Rodenticide Act, •• 2473.- '`�=_• { 24 a as amended 7 U.S.C.A. § 136v(a). r �i ct ' U.S.0 A Const. Art. 6 cl. 2: § O� •• As explained previously, the purpose of '`'; '' `' Yj Property owner who had applied-. applying the law to the nude dancing perfor- 'culture a9.12(1) Syllabus • mantes in respondents' establishments is to ant from town for aerial spraying". ,_� . .(-------prevent their customers from being exposed tides on portion of his land brought :•'-r'-± -. .,;eipal Corporations a53 The Federal Insecticide, Fungicide, and t ~a Rodenticide Act (FIFRA or Act), 7 U.S.C. to the distinctive communicative aspects of tory Judgment action claimin tha r' `, _ -`-- g e Federal Insecticide, Fungicide, and § 136 et seq., was primarily a pesticide li- ` nude dancing. That beingthe case, Justice nance regulating use of pesticii f Qde'Act (FIFRA) did note ressl ,i: Y tensing and labeling law until 1972, when it SCALIA's observation is fully applicable Preempted by state and federal .�' " •_" _ ;••:'-; local regulation of use of'pesti= 1,iCircuit Court.Washburn Coun fs 9 ,0.= was transformed by Congress into a compre- here: "Where the government prohibits con- a: Tess authorization to States to hensive regulatory statute. Among other Bailey, J., held ordinance invaliH;and,- :- duct precisely because of its communicative /• pesticides could more plausibly be things, the 1972 amendments significantly. • was taken. The Wisconsin SuPrei • >-. `. <s: • • attributes, we hold the regulation unconstitu- P -• '.r:-authorizing allocation of regulatory strengthened the pre-existing registration Heffernan C.J., 154 Wis.2d-18„_452t,., "' and labeling standards,specified that FIFRA VI tional." Ante, at 2466.- •- tii.absolute -discretion of states [ `_,LL__= `°' `• ' 555, affirmed.... On grant of:;certii, �._ , "•rx� specificregulates p•esticide use as well as sales and ,La •-'-'. -. -`The O'Brien•deci_sion does not helpJustice_- • s,=including options of 're-: . !its- t;, Supreme Court, Justice White + `_• ;;;, iA=ar' leaving local regulation-- labeling, and granted increased enforcement 4i+-.. ::ry:, SCALIA. Indeed, his position; like the plu- Federal Insecticide, Fungicide;fan `;, '' r _- -'`' rality's,'would eviscerate the O'Brien.test. . o mealauthorities under existing state authority to the Environmental Protection 4.;-"; ":RC tide Act(FIFRA) did not preemptz� •!_ . Vi i' ` -Employment Div.;-De f Human' Re- .,:. Agency (EPA). Regarding state and local �•:..�� -._�- •.ederal"•Insecticide; -Fun •tide;^and g !;, r .-'- p of ernmental regulation of pesticide. '� - sources of Ore. v. Smith, 494 U.S. 872,'110 -;rii« ,t -wde: .Act, § 24(a), as amended, -7. authorities, FIFRA, as amended, includes. _. S.Ct. 1595, 108 L.Ed.2d.876.(1990), is,like- Reversed and remanded `--- ="- ,• § 136v(a). •- - provisions requiring pesticide manufacturers k . wise not on point: The Indiana law; as:.ap= -- `h:` i- .5- `:'°r•: .- ...- - , r�,.1%.- �;�_. �: .t ••�� , - r.:-_, _ � I. to produce records for inspection"upon"upon-re:, l,z_ - Justice Scalia filed opinion-con '. r,:.- tore a9.12(1) quest of anyofficer or employee ... of any 11i _ .. plied to nude dancing; targets the expressive judgment. "` ``s•,; ,•; t activity itself;, in Indiana nudity in a dancing : >-., ti {` r ;m al Co orations a53 State or political subdivision," § 136f(b); "di-: P'hi , `' performance is a crime because of the mes- :,,A,;1;•. " ' -.�'' �p - - ' °-``' recting the EPA to cooperate with "any ap-. x,9-'`.?'.;�;;Vic=:: .. . ._, ._ ; - :'- -.--7--.-- =-"`•' - ' ,••�Eederal Insecticide,.Furi •tide,and' - ----- ;, ---sage such dancing communicates: -In Smith, - -- . • _, t --_mod propriate agency of,any State or any political: , , �a e Act (FIFRA).provided no clear subdivision thereof ... in securinguniformi; ; the use of drugs was not criminal because 1. States a18.11 ,• ;: - '�` - - - tit est indication that Congress sou ht #:•••'•= :-: the use was part of or occurred within the Congress' intent-to supplant s!." g ty of regulations," § 136t(b); and specifying i- w`., ��`6 ' -2.i ••it.local authority over pesticide,reg- that "[a] State" may regulate'pesticide sale ,, .�- ,�� ;:. --: course• of an otherwise protected religious thority in particular field liiay'tiE'•-;��• = .,�,�•;• -.••. iedl although amendments ,ii„..,- ;. ceremony, but because a general law made it terms of statute. U.S.0 •A, Co:i a r <p y' g- or use so long as such regulation does not' c -_ so and was supported by the same interests cI. 2. - - • ' ='`: ,:'- '-.A ?to comprehensive regulatory permit a sale or use prohibited by the-Act;'- ._ i . ytr r; in the'religious context as in'others. : ''' :.4-..•. -• -i .;.'substantial portions of field were still • § 136v(a). Pursuant to its statutory police - Accordin 1 I would affirm the judgment 2. States a18.3 to . - .t� including issue of local, govern= power, petitioner town adopted an ordinance_ ;,, Accordingly, J gment :_/5:sg _tt. -.1 'ermit-scheme'for actual use of pesti that, inter alia, requires a permit for certain ;,;: of the Court of Appeals, and dissent from Absent explicit preemptive .' "'" - "• - this Court's judgment. _ ti _, +Federal Insecticide, Fungicide, and applications of pesticides to private lands. • Congress intent to supersede state.,:, A.�cide-Act; § 24(a), 'as amended; .7 After the town issued a decision unfavorable given area .may nonetheless-:be;'lm~i.' ` ' ''''.p,`§-136v(a). '- `"`7 respondent w _,� .,_. '; to Monier on his application for a nu ' -' O S KEY NUMBER SYSTEM . scheme of federal regulation is So 3 - --' " t• ri, --: _ • •-.1 _ .•. - ,. ... . ' • T as to make.reasonable inference. .. ��;f" '�'.�•'llabus constitutes no•part of the opinion of See United States v.Detroit Lumber Co.,200 U.S., - < _Picot but has been prepared by the Reporter 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499.' ' • - gress left no room for states to;supp -0;-.....- =,.•,�,- • ctsTons for the•convenience of the reader: �- I OCTOBER TERM, 1980 1 : ,a:,., `--,, Yj:. SCHAD v. MOUNT EPHRAIM 61 I STEVENS, J., dissenting 452 U.S. <;; •-. :- Syllabus • +:fit 5r't y titles the defendant in a criminal case to representation by !. P � =_- il counsel apply with equal force to a case of this kind. The ;: ' ; SCHAD ET AL. V. BOROUGH OF MOUNT EPHRAIM issue is one of fundamental fairness, not of weighing the r;i; pecuniarycostsAccordingly, . y." ,against the societal benefits. '. ' %3.��`'_::, APPEAL FROM THE SUPERIOR COURT OF NEW JERSEY APPELLATE j even if the costs.to the State were not relativelyinsignificant . _ y`_'_ DIVISION but rather were just as great as the costs of providing pros- ,. " No. 79-1640. Argued February 25, 1981—Decided June 1, 1981 i , ecutors, judges, and defense counsel to ensure the fairness-of ` " R'j=-- =1 y 7 criminal proceedings, I would reach the same result in this �£ Appellants operate an adult bookstore in the com__ mercial zone of appellee Category of cases. For the value ofprotectingour libertyborough, and the store contains licensed coin-operated devices that dis- „,, -4,, play adult films. When appellants added a coin-operated mechanism from deprivation by the State without due process of law is , ,,d permitting a customer to watch a usually nude live dancer, complaints priceless. -; were filed against them charging that the exhibition of live dancing lea=•--- =`` violated an ordinance that restricted uses permitted in a commercial .- ` �' zone, and they were convicted. Rejecting appellants' defense based on = •`-':`..':• the First and Fourteenth Amendments,the trial court,while recognizing t . . that live nude dancing is protected by the First Amendment, held that , • ., 41a ; First Amendment guarantees were not involved, since the case involved . . ,_ solely a zoning ordinance under which live entertainment, whether a ' :_:. j. • " ` - nude dance or some other form of live presentation,was not a permitted { , :`: use in any establishment in the borough. The Appellate Division of `:' - `'; : s wN the New Jersey Superior Court affirmed, and the New Jersey Supreme - -„µ. :: Court denied further review. 'x = '' Appellants' convictions are invalid under the First and Fourteenth Held: P P °<< k, .. Amendments for appellee failed to justify the exclusion of live enter- t 1 tainment from the•broad rangepermitted=: of commercial usesin the � : : is ' - . - - . borough. Pp. 65-77. ,; `';- a-- x (a) The ordinance in question, as construed by the New Jersey 'i,' ,- ; , .. . courts to exclude live entertainment includin nude dancin ,throe hout 4 the borough, prohibits a wide range of expression that has long been / ,," `yand Fourteenth Amend - - -}:`- held -to be within the protection of the First 1; .. . - -'��-' �- .:;;;���„`'��� ments. An entertainment program may not be rohibited solely be- � ' p -�; ,_ - cause it displays a nude human figure, and nude dancing is'not without - :i''''s= '• its First.Amendment protection from official regulation. Pp. 65-66. - :`5 (b) The First Amendment requires sufficient justification for the I? g :-x,,,,.,, exclusion of a broad category of protected expression from the per- nutted commercial uses, and none of appellee's asserted justifications withstands scrutiny. Its asserted justification that permitting live -. ti" entertainment would conflict with its plan to create a commercial area {' -_: catering only to the residents' "immediate needs,"is patently insufficient. i As to its asserted justification that live entertainment may be selectively 1_ excluded from the permitted commercial uses to avoid problems asso- ciated with live entertainment, such as parking,trash, police protection, `T NI RS uD �i SCHAD v. MOUNT EPgRAIM 63 I , 62 OCTOBER TERM, 1980 -4 ' t \ '• F ' 4 iOpinion of the Court i F , Opinion of the Court - char g 452 U.S. ;a} ;;;t: 61 ellants gin that laints were soon filed against appellants § 99-15B and medical facilities, appellee has presented no evidence that live enter- - * - ,,, Comp , i '' tainment poses problems of this nature more significant than those : + the bookstores exhibition of live dancinghich described.the '' - .- . hraim's zoning ordinance, ;} i :•"� associated with various permitted uses, or that its interests could not be :� r of Mount Ep r in which the store was : , , met by restrictions that are less intrusive on protected forms of ex- .aA -�'e� , :_. permitted uses in a commercial zone, y I pression. And as to the claimed justification that the ordinance in _ as follows �� located, and in buildings• question is a reasonable "time, place, and manner" restriction, appellee ,A--,t, ,,.-- , . e ermitted uses on the land l ;, B• Principal P restaurants and , does not identify its interests making it reasonable to exclude all live a• ; , , banks' taverns; Offices and with no ,, entertainment but to allow a variety of other commercial uses, and has r " "(1) dinners only and presented no evidence that live entertainment is incompatible with the 7.,. a luncheonettes. for sit-down s retail stores, such as , permitted uses. Pp. 67-77. /. drive-in facilities; automobile ales; f ab- 1, a aril, millinery, Reversed and remanded '$ _ M`Y ' a er ap_ l- . ;= r-.:;.>... but not limited to food wearing Paint, wallp p 1 r I. _. �'' hardware lumber, jewelry, P Wnrrn, J., delivered the opinion of the Court, in which BRENNAN, _ tics, harmacy, li'- if is books, stationery, p : pliances, flowers, g repair shops �+ ;i STEwART, MARSHALL, BLACHMIIN, and POWELL, JJ., joined. .$LACSMUN, .J ,•x hobbies and toys; P , • �r �. � novelties, J., filed a concurring opinion, post, p. 77. PownLL, J., filed a concur- ,r'f uors cleaners, barbershops and j • , ring opinion, in which STEWART J. joined, post,p. 79. STEVENS, J. filed r for shoes, jewels, clothes and appliances; pet stores; and i. > > �-�� �-' `>�• `° and laundries; an opinion concurring in the judgment, post, p. 79. BURGER, C. J., filed :to =��LL- salons' cleaners to a �' beautyermitted s ddition, be p a dissenting opinion, in which REHNQUIST, J., joined, post, p. 85. Qglces may, m a ark- t; nurseries. group of four (4) stores or more without additional alert I. t Robert E. Levy argued the cause for appellants. With him ; ' -;-,jam: , rovided the offices do not exceed the eq { , -`''`cgross floor area on the brief was Lewis A. Robertson. � e ing' p (20%) of the of the G of twenty percent t i r t Arnold N. Fishman argued the cause and filed a brief for :1 r stores. our Ephraim Code §99-15B (1)� i ) Motels." M t appellee.* JIISTICE Wm'r delivered the opinion of the Court. ' d ,>r (2) (1979) a "R 1" es of zones. The anadult bookstore in ' - .._,._;:. _The zoning ordinance establishes t ee t dwellings. The "R-2" rise In 1973, appellants began operating s le-family s townhouses, and g the commercial zone in the Borough of Mount Ephraim in residential district is zoned for single-familyar • -"'''-'�� #� .£�Itif-� dential district is zoned for sing dwelling , ecified .. ti Camden County, N. J. The store sold adult books; 'maga-' den apartments. The"C" district is zoned,for commercial useh aim Code tines, and films. Amusement licenses shortly issued permit- 1,!::: Mount Ephraim Code. See Mount EP 11 � :#.,._,,x•=r,,- in §99-15 of the f= — ting the- store_to_install_coin-o erated devices_b - virtue of _ w ., , p y §g9_7 _(1979)._ ___. u ose of-the commercial_zone: '= .:. ` which a customer could sit in a booth,insert a coin, and watch :_ z Section 99-15A states the p purpose rovide areas foe local— •����r=.=`= purpose of this district is to p an adult film. In 1976, the store introduced an additional ';;; ;,- � s::. "A. Purpose. The Ppattern recognizes '•-_ �'--�.::: s Highway and the .,.-,, and regional commerciaatternawlh eh exists The talon d1King P coin-operated mechanism permitting the customer to watch a g • ¢; the strip commercial p k .,- Pike. It is intended however, to encourage os hie nimng live dancer, usually nude, performing behind a glass panel. _:,-.. • R,. Black Horse P' went to improve upon a develop' -_'•r uses and any new uses or redevelop n shopping-c ter-typ *Bruce J. Ennis filed a brief for the America n Civil Liberties Union K r depth by encouraging and.site districts of greater dip landscaping et al. as amici curiae urging reversal. = controlled ingress and egress, i mint with buildings related to each oher parking, design, • Anthony H. Atlas filed a brief for Morality in Media, Inc., as amicus } - planning and by requiring off-street curiae urging affirmance. - #� 3' - : -. #. i • • 64 OCT ,l'' ;i OBER TERM, 1980 .A M SCHAD v. MOUNT EPHRAIM i 65 h'isam= Y •1 LFF Opinion of the Court 452 U.S. V + Opinion of the Court J " 3s 61 Section 99-4 of the Borough's codeprovided that '`` note g "[a]ll uses -� s,:- xpressly permitted in this chapter areprohibited." _^' ;: ;. subject to zoning and other licensing requirements is not The Appellants were found guilty in the Municipal Court anda 't Y sufficient reason for invalidating these ordinances." fines were imposed. Appeal '--'; P was taken to the Camden " is Appellate Division of the Superior Court of New Jersey af- " :. firmed appellants' convictions in a per curiam opinion "es- I( County Court, where a trial de novo was held on the record = '' made in the Municipal Court and appellants ,: ':•' <; sentially for the reasons" given by the County Court. App. ,i were again found :-.. guilty. The Count Court first rejected appellants' - =.5: r,; - to Juris. Statement 14a. The Supreme Court of New Jersey. { Y jimpropclaim = w,y denied further review. Id., at 17a, 18a. that the ordinance was being selectively and improperly en- '+ ,,,�,. " .. Appellants appealed to this Court. Their principal claim forced against them because other establishments offering live ;,,::.i entertainment were permitted in the commercial zones.' is that the imposition of criminal penalties under an ordi- form establishments, the court held, were permitted, noncon- ` •�'� ,- nance prohibiting all live entertainment, including nonob- i forming uses that had existed prior to the passage of the `' ' scene, nude dancing, violated their rights of free expression i ordinance. In response. to appellants' defense based on the ▪ ''y guaranteed by the First and Fourteenth Amendments of the First and Fourteenth Amendments, the court recognized that %;= ` -.;' United States Constitution. We noted probable jurisdic� �, "live nude dancing -4W "_. 'g is protected by the First Amendment but ..-•. ;__ tion, 449 U. S. 897 (1980), and now set aside. appellants was of the view that "First Amendment '�' '•:� ., ����:�-- convictions. . guarantees are not :� I involved" since the case "involves solely a zoning ordinance". . : - - .. under which "[1]ive entertainment is simply not a permitted tiro As the Mount Ephraim Code has been construed by the • i use in any establishment" whether the entertainment is a :a`jM ` , • New Jersey courts—a construction that is binding upon us— nude dance or some other form of live presentation. App. to r '._ "live entertainment," including nude dancing, is "not a per- . - _ Juris. Statement 8a, 12a. Reliance was placed on the state- ":z f 3:-�;• ' mitted use in any establishment" in the Borough of Mount '" - ,- < m62 (1 n Young v. American Mini Theatres, Inc.;427 U. S. 50, `#_ Ephraim. App. to Juris. Statement 12a. By excluding live 62 (1976), that "[t]he mere fact that the commercial ex- I, ploitation of materialprotected byther fig} ' entertainment throughout the Borough, the Mount Ephraim First Amendment is ;; L£, " ordinance prohibits,a:wide range of expression that has long eater buildingsetbacks, buffer areas along ;���rK -" , been held to be within the protections of the First and Four- f Property lines x adjacent to '' , �-:j-f.s �.'^:R;. ,. teenth Amendments. Entertainment; as well as political and residential uses, and a concentration of commercial uses into fewer loca- tionsto eliminate the strip pattern." "'q �- ideological speech, is protected; motion pictures, programs -- - 3 --- _:,� , d television, and live ..entertainment__. _ r The building inspector, who is responsible for enforcing the zoning broadcast by radio an ordinance, testified that three establishments located in commercial zones :_, '•Y• such as musical and dramatic ,works, fall within the First of the Borough offered live music. However, he stated that they were ` _ =-r' :: Amendment guarantee. Joseph Burstyn, Inc. v. Wilson, 343 1 i permitted to do so only because this use of the remises --C: , l. . . P Preceded the :,_;._. enactment of the zoning ordinance and thus qualified as a "nonconform- •-:''i:, 1 4 g ordinance as a plied to them, 1' ing"use under the ordinance. Munic. Ct. Tr.21 25 35-36 55-59. Appellants also contend that the zonin P g i« n violates due process and equal protection, since the Borough has acted The Police Chief also testified. He stated that he knew of no live r_. in prohibitingbooths in which customers can ``I e`,` arbitrarily and irrationally i entertainment in the commercial zones other than that offered b a el- t P lams and by the three establishments mentioned bythe building y pp _; view live nude dancing while permitting coin-operated movie booths. lan at d g�ptor• ','• ' '.. : Since we sustain appellants' First Amendment challenge to the ordinance, '`'' :- we do not address these additional claims. Y1 : t ti;i I. OCTOBER TERM, 1980 II ; ;- r; SCHAD v. MOUNT EPHRAIM 67 y Opinion of the * '` - }, Court 452 U.S. r r , ' 61 Opinion of the Court '.', { U. •S. 495 1952 - 1 t `i II • I!. ( ); Schacht v. United States, 398 U. S. 1.::.;; : . • (1970), Jenkins v. Georgia, 418 U. S. 153 (1974); Southeast- a i i'i ern Promotions, Ltd, v. Conrad, 420 U. S. 546 1975 :• '"111 The First Amendment requires that there be sufficient justi- I ,: Erznoznik v. City of Jacksonville,422 U. S. 205 (1975)(Doran ,� fication for the exclusion of a broad category of protected 1 v. Salem Inn,-Inc. 422 U. S. 922 (1975). See also California ": :." a' ,,, expression as one of the permitted commercial uses in the 1( 1� v. LaRue, 409, U. S. 109, 118 (1972) YoungY tM; Borough. The justification does not appear on the face of the '. I; Theatres; Inc., supra, at 61, (1 Nor m an entertainment '' ordinance since the ordinance itself is ambiguous with respect }'1'I Program be prohibited solely because it displays the nude "t_. to whether live entertainment is permitted: § 99-15B purports to specify only the "principal" permitted uses in commercial :I:17 human figure. "[N]udity alone" does not place otherwise 5`- `; ` 'n protected material outside the mantle of the First Amend- establishments; and its listing of permitted retail s establish- , ments is expressly nonexclusive; yet, § 99-4 declares that all {, ment. Jenkins v. Georgia, supra, at 161; Southeastern Pro- : ',7,, ) , motions, Ltd. v. Conrad, supra; Erznoznik v. CityofJackson- �r , ';t i.} • A. `x9;.4 uses not expressly permitted are forbidden.' The state courts �; ;: vile, supra, at 211-212, 213. Furthermore, as the state t9� ^;= at least partially resolved the ambiguity by declaring live ? courts in this case recognized, nude dancing is not without its 2 -_,;_�,,,. ;_ entertainment to be an impermissible commercial use. In `+ : First Amendment protections from official regulation. Doran ## doing so, the County Court, whose opinion was adopted by the :f$;,F Appellate Division of the_Superior Court, sought to avoid or t ' v. Salem Inn, Inc., supra; Southeastern Promotions, Ltd. v. _ _ . p �`` s Service stations are not listed as principal permitted uses in §99-15B. ' !i0 _ Whatever First Amendment protection should be extended �� However, both §99-15E ("Area and yard requirements") and §99-15F ' ' to nude dancing, live or on film, however the Mount - ( Minimum off-street parking ) specifically refer a service stations, and d<,; ' Ephraim ordinance prohibits all live . Borough: no property entertainment in the ,.:;a:.-. . § :;::� ,. ' > 9J 15J limits the construction or expansion of service stations in a P P Y the Borough may be principally `'-"� rFdesi ated area of the commercial district. Service stations would t us - ,'{.; I' . • .. appear to be permitted uses even though not expressly listed in §99-15B. , � I used for the commercial production of plays, concerts, musi- -- call, dance, or any other form of live entertainments Be- t-,`. ` �;' �Y;. Various official views have been expressed as to what extent entertain- :1I' cause appellants' claims are rooted in the First Amendment �3` men is excluded from the commercial zone. At the initial evident they are entitled to rely on the' impact of the ordinance on e-•m r.N;`'i' hearing, the prosecutor suggested that the ordinance only banned "live a '`r ` :t entertainment" in commercial establishments. Munk. Ct. Tr. 49 (em- the expressive activities of others as well as their own. Be_ �__ ' « :sz >' phasis added). By contrast, the building inspector for the Borough stated 1 ! cause overbroad laws, like vague ones, deter .privileged ac- ,,• * = that there was no basis for distinguishing between live entertainment . I , tivit[ies] our cases • ;" firmly establish appellants standingto - and other entertainment under the ordinance. Id., at 20, 50. Before this raise anes overbreadth challenge." Grayned v. City of Rock- `' Court, the Borough asserted in its brief that the ordinance "doesp of pro- �il ford, 408 U. S. 104, 114 (1972). -'r hibit all entertainment,but only live entertainment Brief for Appellee 21, ^' < = = yet counsel for the Borough stated during oral argument that the ordinance !1 : 1' ! d The Borough's counsel asserted at oral ar , I � 4,.;, - prohibits commercial establishments from offering any entertainment. gument that the ordinance ,= ;,x; :• Tr, of Oral Arg. 40. The County Court ruled that "live entertainment- i!! would not prohibit. noncommercial live entertainment such as singingG `{ : is not apermitted use under §99-15B,,but it did not consider whether ' Christmas carols at an office party. Tr. of Oral Ar 33. A FI, g• pparently nonlive entertainment might be a permitted use. At oral argument, coup- i ,; a high school could play j; perform a la if it did not charge admission. How- V '~Tbut ts referred to a movie theater*in the Borough, Tr..of Oral ,i; ever, the ordinance prohibits the production of plays in commercial t • set fora '11;� theaters. Id, at 34. y": Arg. 9, but counsel for the Borough explained that it is-:permitted_onl X ` •:, 'ail c-. i,; a. because it is a nonconforming use. Id, at 28, 38=40. ! • 9F'*r i 1'1 68 OCTOBER TERM, 1980 a SCHAD v. MOUNT EPHRAIM _ -• •'' Opinion of the Court Opinion of the Court 61 452U.S. Y A,' ; rI to meet the First Amendment issue only by declaring that the •., .=f ample, Court recognized its obligation to assess t e su - restriction on the use of a , >, mple.a the of the justification offered for a regulation that appellants' property was contained I. in a zoning ordinance that excluded all live entertainment ;t s significantly impinged on freedom of speech: from the Borough, including live nude dancing. = "Mere legislative preferences or beliefs respecting mat- The power of local governments to zone and control land -,.;,;-,„, •,.' ..7,_;: ters of public convenience may well support regulation use is undoubtedly broad satisfactorya its proper exercise is an essen- ; ,g x; , directed at other personal activities, but be insufficient , tial aspect of achieving a quality of life in both J„ ' to justify such as diminishes the exercise of rights so urban and rural communities. But '~ "the zoning power is not vital to the maintenance of democratic institutions. infinite and unchallengeable; it "must be exercised within con- ,.y.- -,. ';� stitutional limits." Moore v. East Cleveland, 431 U. S. 494 - "family" (no more than two unrelated ersons) did not burden any funda- P 514 1977 (STEVENS, ry ° ;',`: uaranteed b the Constitution. Id, at 7. Thus, it merely . Ill ( VENs J. concurring in judgment). Accord- mental neht g y the it is subject to judicial review, and as is most often g . , s,: Irli-rhad to bear a rational relationship to a permissible state objective. I .,the case, the standard of review is determined by the nature = z. at 8.fundamental personal rights dissented, asserting that the ordinance impinged of the right assertedlythreatened or violated rather than bx� on nThu it can withstand constitutional scrutin onl u on a clear show- y zs _: ':r`t= , [ ] Y Y P the power being exercised or the specific limitation imposed. c , Rt ;i Thomas v. Collins 323 U. -- �, ing that the burden imposed is necessary to protect a compelling and sub- , . S. 516, 529-530 (1945). ,: . stantial governmental interest . . . . [T]he onus of demonstrating that no Where property interests are adversely affected b zoning, less intrusive means will adequately protect the compelling state interest the courts generally have emphasized the breadth of muni ,`T''- -'. and that the challenged statute is sufficiently narrowly drawn, is upon the ipal power to control land use and have sustained the re u- "'#`,<: party seeking to justify the burden." Id., at 18 (citation omitted). I and lation ifit is -rationally related to legitimate sta g }` Moore v.East Cleveland, 431 U.S.494 (1977),like Belle Terre,involved and does not deprive the own concerns `"`j__ };;_ an ordinance that limited the occupancy of each dwelling to a single owner of economically viable use of 'Y family. Unlike the ordinance challenged in Belle Terre, however, this his property.. Agins v. City of Tiburon 447 - .." I ` vr+ 1980 U. S. 255, 260 _- �' ordinance defined "family" in a manner that prevented certain relatives ( ), Village o f Belle Terre v. Boraas 416 U. S. 1 (1974 ,, ~ ".. �'�`� from living together. J4STICE POwELL, joined, by three other Justices, Euclid v. Ambler Realty Co., 272 U. S. 365 395 • '-f . d: i <3; concluded that the ordinance impermissibly imp�g� upon protected an ordinance may fail even under that (19an). But ``> ="5=`'•r ' 8: liberty interests. 431 U. S. at 499. JUSTICE STEVENS concluded that the - _ limited standard of `'_"�"' ordinance did not even survive the Euclid test. 431 U. S. at 520-521. review. Moore v. East Cleveland, supra, at 520 (STEVENs, J., concurring in judgment); 1V The dissenting opinions did not contend-that zoning ordinances must ), ectow v. Cambridge,:277 U. S. 183 "' 'n. be deferentially reviewed. Rather, the dissenting Justices who ; -:. always u on (1928),_ _ '•`<" ssed-the_issue rejected the view that the ordinance impinged p ,1 ..rt..._, addre.. Beyond that, as is true of other ordinances, when a zoning �� ! interests that required heightened protection underthe Due Proc id, at 549 law infringes upon a protected liberty, •it must be narrowlg "_". • Id. at 537 (STEWART, J., joined by B H QIIIST, J, dissenting), '\ drawn and must further a sufficiently substantial governme t ,.'.::',,;,-1 (Wtirra, J., dissenting). '` Even where a challenged regulation restricts freedom of expression only interest.' In Schneider v. State, 308 U. S. 147 (1939), for ex- . Fr.. I , ° `"`' incidentally or only in a small number of cases, we have scrutinized the f -it governmental interest furthered by the regulation and have stated that the 'In Village of Belle Terre v, Boraas, the U. S. 1 (1974), the Court intrusion on" I� regulation must be narrowly drawn to avoid unnecessary 391 U. S. 367,.376- wellinupheld a zoning ordinance that restricted the use of land to "one-family" freedom of expression. See United States v. O'Brien, dwellings. The Court concluded that the municipality's definition of a 377 (1968). 'I - j' 1 It 1 • ,i i 70 OCTOBER TERM 1980 h EPHRAIM 71 I. ' SCHAD v. MOUNT is }i ,' Opinion of the Court II t �I 452 U.S x Opinion of the Court r»ra i�61 And so, as cases arise, the delicate and difficult t e I,I r; falls upon the courts to weigh the circumstances and two • .'"• ' SusTI� POLL said much the same thing in addressing the appraise the substantiality of the reasons advanced ` i� ,. ` validity •of a zoning ordinance in Moore v. East Cleveland, support of the regulation of the free enjoyment in " ,, !t31 U. S., at 499: when the government intrudes se one of I" I; Amendment] rights." Id., at fre yment of [First r i, ; he liberties protected by the Due Process Clause of the i'' t i ' SimilarlysL`• - ,;;Fourteenth Amendment, "this Court must examine caref y i ` ' , in Village o f Schaumburg v. Citizens for a Better , • `` • .- ,x''the ;nnportance of the governmental interests advanced and �, 1 , Environment 444 U. S. 620, 637 (1980), it was emphasized �' ti i; that the Court must not only assess the substantiality of the •_; • » y�the extent to which they are served by the challenged regu a- } ' Ilil ton. Because the ordinance challenged in this case gsh, w- ;^s s:3, governmental interests asserted but also determine whether ...' 4F ". "� �' those interests could be served by means that would be less ti. .;, scrutinize both the interests advanced rbye the Borough t.; candy limits communicative activity. within the Borough, we „t, Fri tfl intrusive on activity protected by the First Amendment: must scrutuu to justify this limitation on protected expression and the I,: "The Village .may serve its legitimate interests but it -▪_ y • 1' "4 must do sonarrowly drawn regulations designed 1;°; by v, `. " ,means chosen to further those interests. 1 toff 7 r • As an initial matter, this case is not controlled by Young ., i serve those interests without unnecessarily interferin(F with First Amendment freedoms. Hynes v. Mayor of v. American Mini Theatres, Inc., the decision relied upon by !, Oradell, 425 U. S., at 620; First National Bank of Boston the Camden County Court. Although the Court there stated v.OraBeldell, 435 U. S. 765, 786 (1978).. `Broad prophy- �.* • hat •a zoning •ordinance is not invalid merely because it regu- s'� lactic rules in the area of free expression are suspect. _ -' ' .1 late.activity protected under the First Amendment, it em- Precision of regulation must be the touchstone. ;. , . ;�has�zed that the challenged restriction on the location of NAACP v. Button, 371 U. S. 415, 438-(1963touch . p „ �< x adult •movie theaters imposed a minimal burden on protected ; u r - `=� ` eh. 427 U. S. at 62. The restriction did not affect the 9 Several municipalities argued ' Yr ���'•Spee I ordinances were d m sir antileaflettin Schneider that th ' number of adult movie theaters that could operate in the I designed to prevent littering of the streets. The Court ' " a ` '-�'$ci = it merelydispersed them. The `Court did not imply J. did not deny that the ordinances g p j eluded that the cities' would further that purpose but it con k '`'- •; � I ' • that a munici alit could ban all adult theaters—much less ,.I in preventing littering .,, -Municipality $j strong to justify the limitation interest on Firevst g was not sufficiently ,,a ;i ,, j :+ pointede out that the cities were free to Amendment rights. The Court .`' x < _live entertainment or all nude dancing—from its comm ing Aulsue other methods of prevent- ` _ : ' • �� tricts citywide YO Moreover it was emphasized in thatit littering, such as punishing those who actually threw papers ,r_ .,. Streets. 308 II. S.,'at 1punishing on the`?cam � v 9 Village- of Schaumburg invalidated on First Amendment o - - ti ` .. ^3 •a; 1O JIISTICE STEVENS' relied on the District- Court's finding that_com_- �� t�. "' tecor impose a slight burden 1 municipal ordinance prohibiting_ the solicitation of contributions bya 'ti . . ci xonFirst Amendments ghts since there were myriad locations" within >� ,i charitable organizations that did not use at least 75% of their recei is _ for "charitable ` p -` =#`the city where new adult movie theaters could be located in compliance purposes:" Although recognizing that the Village had `_�" . s ' ' substantial interests "`es x _ with the ordinances. 427 U. S, at 71, n. 35. undue anno ance"' protecting the public from fraud, crime and 'a" • ` �`'=`' y JUSTICE PowEr z's concurring opinion stressed that the effect i Y U. S., at 636 we found •these interests were 0t ` of the,challen d ordinance on First Amendment interests was "incidental I_ peripherally promoted by the 75-percent r "onlye _ ` R ciently served by measures less destructive ofelust Amendment inters _ L • 2 Ibzd• could and minimal" Id, at 78. He did not suggest that a municipality could '�i » • .1, 'I ;,validly exclude theaters from its commercial zones if it had included other ; '4lbusmesses presenting similar problems. Although he regarded the bur-_ ` .. _ r • t ,•� - Ti.. ` _: i i.i 72 OCTOBER TERM, 1980 SCHAD v. MOUNT EPHRAIM 73 1 11i ',' Opinion of the Court i i1 . Opinion of the Court 452 U.S. ' = 61 .,k e 3 case that the evidence presented to the Detroit Common ,ah... range of permitted uses goes far beyond providing for the F, , Council indicated that the concentration of adult movie the- >Q ,1: "immediate needs" of the residents. Motels, hardware stores, aters in limited areas led to deterioration of surrounding neigh- ,74,: lumber stores, banks, offices, and car showrooms are per- i1tIImuted in commercial zones. The list of permitted "retail . { borhoods,ll-and it was concluded that the city had justified the incidental burden on First Amendment interests resulting Y ;''_`y ;: stores" is nonexclusive, and it includes such services as from merely dispersing, but not excluding, adult theaters. 'I ;; • beauty salons, barbershops, cleaners, and restaurants. Vir- ii ;f In this case, however, Mount Ephraim has not adequately '' tually the only item or service that may not be sold in a com- justified its substantial restriction of protected activity. r 0'i; 12 t`. r, = mercial zone is entertainment, or at least live entertainment 14 I; ii None of the justifications asserted in this Court was articulated `` The Borough's first justification is patently insufficient. Ii ,; by the state courts and none of them withstands scrutiny. __; N; Second, Mount Ephraim contends that it may selectively First, the Borough contends that permitting live entertainment a '' =`- exclude commercial live entertainment from the broad range i :, would conflict with its plan to create a commercial area that i.. ,•. f�' �,x_�:'. of commercial uses permitted in the Borough or reasons nor- ; ,R :. caters only to the "immediate needs" of its residents and that - `:` many associated with zoning in commercial districts, that is, , I would enable them to purchase at local stores the few items z to avoid the problems that may be associated with live en- , }y, they occasionally forgot to buy outside the Borou h.13 No ':��_,'. _ tertainment, such as parking, trash, police protection, and i' evidence was introduced below to support this assertion,g and - .� medical facilities. The Borough has presented.no evidence, it is difficult to reconcile this characterization of the Borough's =" and it is not immediately apparent as a matter of experience, g "`• ``' ' that live entertainment poses problems of this nature more 1 zones with the provisions of the ordinance. Sec- `�_ m ' tion commercial expressly states that the purpose of creating significant than those associated with various permitted uses; : nor does it appear that the Borough's zoning authority has commercial zones was to provide areas for "local and re- ▪,_'7.: Tonal commercial operations. (Emphasis r f • :,_ arrived at a defensible conclusion that unusual problems are (Em hasis added. The ''' - ,,,,A.,:: presented by live entertainment. Cf. Young v. American rz: „ den imposed by the ordinance as minimal JUSTICE POWELL examined the ' ' #7',= Mini Theatres; Inc., 427 U. S., at 54-55, and n. 615 We 1, L , 1: city'sjustification for the restriction before he concluded that the ordi- ==:e '`. . nance was valid. Id, at 82, and n. 5. Emphasizing that the restriction �.r;. ; " L" •_ 14 At present, this effect is somewhat lessened by the presence of at least was tailored to the particular problem identified by the city council he -. ;� °• ; "' acknowledged that "rt]he ;z�• three establishments that are permitted to offer live entertainment as a g case would have presented] a different situ- �' ��.;�:�.�.:. nonconforming use. See n. 3, supra. These uses apparently may con- ation had Detroit brought within the ordinance types : � '•_ time indefinite) since the Mount Ephraim Code does not require nSee had not been shown to contribute to the deterioration orionooftheater ndhat Y, - _,...,�.,� ram-,,.. r -"" '��`=""' conformin uses_to be-terminated within a_s ecified eriod of time. See ', --areas. Id, at 82: — — :'.: ' g g == Mount Ephraim Code §99-24 (1979). The Borough's decision to permit 1 e Id., at 71,and n.34 (opinion of STEVENS,J.); id., at 82,n. 5 (PowELL -'7k' ram.,E- live entertainment as a nonconforming use only undermines the Borough's t; J., concurring). -' %-. i' 12 .�, �,Y.,:, : contention that live entertainment poses.inherent problems that justify its ; If the New Jerseycourts had expressly • exclusion.! xP y interpreted this ordinance as , all entertainment, we would the same result. _' The Borough also speculates that it may have concluded that live '. w .., ,e. 15 , banning13 Mount Ephraim's counsel stated reachin this Court that these stores were rv~ -' i▪ -, . available " ' ,;;_`4;"' ' nude dancing is undesirable. Brief for Appellee 20. It is noted that in I� [i]f you come home at night and you forgot to buy your bread, California v. LaRue, 409 U. S. 109 (1972), this Court identified a number - your milk, gift."iyour ft. Tr. of Oral Arg. 40. - `-•- of problems that California sought to eliminate by prohibiting certain l l .W£T._ C - • • T i• ti 74 OCTOBER TERM, 1980 SCHAD v. MOUNT EPHRAIM 75 I; Opinion of the Court I' Opinion of the Court 452 U.S. '..: :'.°. 61 ' do not find it self-evident that a theater, for example, ' `.f`.' � : commercial uses in the Borough' In Grayned v. City of , would create greater parking problems than would a restau- ' Rockford, 408 U. S. 104 (1972), we stated: _. , , ,:-.,-: --,,Is.':..,.: ,I rant.16 Even less apparent is what unique problems would •i ,,_,, ' "The nature of a place, 'the pattern of its normal ac- 1l be posed by exhibiting live nude dancing in connection with tivities, dictate the kinds of regulations of time, place, IE the sale of adult books and films, particularly since the book- „ ;:w°; and manner that are reasonable.' . The crucial ques- ; store is licensed to exhibit nude dancing on films. It may'be tion is whether the manner of expression is basically i, that some forms of live entertainment would create problems -'? `s'` incompatible with the normal activity of a particular .; ,l that are not associated with the commercial uses presently place at a particular time. Our cases make clear that permitted in Mount Ephraim. Yet this ordinance is not nar- -'-`A''c ; in assessing the reasonableness of a regulation, we must ,li ' ' _. . rowly drawn to respond to what might be the distinctive �`•. ` weigh heavily the fact that communication is involved; f; ; .' the regulation must be narrowly tailored to further the ; problems arising from certain types of live entertainment, _- .- State's legitimate interest." Id., at 116-117 (footnotes and it is not clear that a more selective approach would fail -r;.;_.: , to address those unique problems if any there are. The `, ' ,na- omitted). Borough has not established that its interests could not be ,,,,,.:,,-ii-,..ii Thus, the initial question in determining the validity of the lace and manner restriction is whether 1' met by restrictions that are less intrusive on protected forms _> - �-,° exclusion as a time, -place,I of expression. _ ' : 3 `' _ live entertainment is "basically incompatible with the normal. : l i The Borough also suggests that § 99-15B is a reasonable > -As discussed above, no g ggactivity [in the commercial zones].""time, place, and manner" restriction; yet it does not identify ,.r ' ,, evidence has been presented to establish that live entertain- the municipal interests making it reasonable to exclude all' ment is incompatible with the uses presently permitted by the commercial live entertainment but to allow a varietyof other -a````` ',..'-`-''=, Borough. Mount Ephraim asserts that it could have chosen J . ::: -` ^=z>.- to eliminate all commercial uses within its boundaries: Yet explicitly sexual entertainment in bars and in nightclubs licensed to serve = << we must assess the exclusion of live entertainment in light of " -.:ter"�:..: liquor. This speculation lends no support to the challenged ordinance the commercial uses Mount Ephraim allows, not in light of .I First, §99-15B excludes all live entertainment, not just live nude.dancing. `' .._., `:e ; 4_,, what the Borough might have done 18il Even if Mount Ephraim might validly place restrictions on certain forms >,..;:,, . ,: :: :;," To be reasonable,•time, place, and manner restrictions not of live nude dancing under a narrowly drawn ordinance, this would not O>..•:., . justify the exclusion of all live entertainment or, insofar as this. record f !: ; only must serve significant state interests but also must It reveals even the nude dancing involved in this case. Second the regula- '~ r tion challenged in California v. LaRue was adopted only after the Depart- - ---u 17 Mount E hraim argued in its brief that nonlive entertainment is an i• �, s ,,,.: IIee 20=21. r� ;; - ,t, ii ment of Alcoholic Beverage Control had determined that significant adequate substitute for live entertainment. Brief for Appe i' I problems were linked to the activity that was later regulated. Third, in F='_1 '.; This contention was apparently abandoned at oral argument, since the ; Borough's counsel stated that the ordinance bans all commercial enter j i California v. LaRue the Court relied heavily on the State's power under $ .[��-��..=:; g , 1 ' 1 ; the Twenty-first Amendment. Cf.Doran v.Salem Inn,Inc., 422 U.S.922 tainment. At any rate, the argument is an inadequate response to the II 1 (1975). -- fact that live entertainment, which the ordinance bans, is protected by II i 16 Mount Ephraim has responded to the parking problems presented by 'Rh '`b the First Amendment. {I :" 16 Thus, our decision today does not establish that every unit of local 1 the uses that are permitted in commercial zones by requiring that each ; ;. =- type of commercial establishment provide a specified amount of parking. government entrusted with zoning responsibilities must provide a com- mercial 1 See Mount Ephraim Code §§99-15F (1979). ". 'r zone in which live entertainment is permitted. _ • lil _ , . --1 t 76 ' • OCTOBER TERM, f i 1980 'c = .„ SCHAD v. MOUNT EPHRAIM 77 Rti. Opinion of the Court -- '° • .1 al BznCT UN, J., concurring '� 452 U.S. ,.-. . ,:mw:: ;,,: -leave open adequate alternative channels of communication. ,A Grayned v. Cityof '`" places-abridged on the plea that it may be exercised in some Rockford, supra, at 116, 118; Kovacs v. r: Cooper, 336 U. S. 77, 85-87 (1949); see also Consolidated °they place." Schneider v. State, 308 U. S., at 163. ` Accordingly, the convictions of these appellants"are in. Edison Co. v. Public Service Comm'n of New York, 447 U. S. " judgment of the A P :s'Cli! ':: and the ppellate Division of the Su erior 530, 535 (1980); Virginia Pharmacy Board v. Virginia Citizens --`.: r t, ;::. g Court of New Jersey is reversed and the case is remanded for ; : ! Consumer Council, 425 U. S. 748, 771 (1976). Here, the Bor- - -,;-; ::::' . further proceedings not inconsistent with this opinion. ough totally excludes all live entertainment, including non-` obscene nude dancing that is otherwise protected b the Fir So ordered. i Amendment. As we have observed, Young v. American Mini_! Theatres, Inc., supra, did not !' '_, JUSTICE BLAcEMUN, concurring. purport to approve the total �� ‘1,�F. exclusion from the cityof theaters showing adult, but not ;_ ,. _ I join the Court's opinion, but write separately to address ' j obscene, materials. It was carefully noted in that case that two points that I believe are sources of some ambiguity in ' the number of regulated establishments was not limited and - <•' that "[t]he situation would be quite different if thes • °;w";` this still emerging area of the law. had the effect of suppressing, or ordinance :. : First, I would emphasize that the presumption of validity greatly restricting access to ° =?Z.:2i, that traditionally attends a local government's exercise of its , k lawful speech." 427 U. S., at 71, n. 35. "'t" ;i I The Borough nevertheless contends that live entertainment _ zoning powers carries little, if any, weight where the zoning I �. in general and nude dancing in particular are amply available �. ' s_-__: regulation trenches on rights of expression protectedunder '' the First Amendment. In order.for a reviewing court to in close-by areas outside the limits of the Borough. Its posi- tion •`'' determine whether a zoning restriction that impinges on free l Lion suggests .1:. the argument that if there were countywide ''_ speech is "narrowly drawn [to] further a sufficiently substan- 3'wi -='L:1 zoning, it would be quite legal to allow live entertainment in tial governmental interest," ante, at 68, the zoning authority r only selected _. areas of the count and to exclude it from n ` `,f, must be prepared to articulate, and support, a reasoned and �. _ it Y _ .�, .�._: 'y 6 mar residential communities such as the Borough of f significant basis for its decision. This burden is by no means Mount ,Ephraim. This may veryg Y well be true, but the Bor- "'""__ -�,_:;- insurmountable, but neither should it be viewed as de mini- i 1 ough cannot avail itself of that argument in this case. There ""z t"a - MIS. In this _case, Mount Ephraim evidently assumed that J is no countywide zoning in Camden County, and Mount -'„jA ' ., Y ?� ;tip,3` because the challenged ordinance was intended as a land-use u Ephraim is fr-ee under state law to impose its own zonin re- regulation, it need survive only the minimal scrutiny of a g :r= _:1! strictions, within constitutional limits.h Furthermore there is .::. rational relationship test, and that once rationality was es- no evidence in this record to support "=-w t "` the proposition that the — _ —--tablished, appellants then carried the burden of proving the--__ i kind of entertainment appellants wish to provide is available ,��`.-._ regulation invalid on First Amendment a',,_ grounds. Brief for 4l in reasonably nearby areas. The courts below made no such t- Appellee 11-1.. After today's decision, it should be clear .1 - : findings; and at least in their absence, the ordinance exclud- `` "4"- that where protected First Amendment interests are at stake, ing •live entertainment from the commercial zone cannot con- zoning regulations "talismanicimmunity stitutionally be applied to a ` " _= have no such from appellants so as to criminalize the -, constitutional challenge." Young v. American Mini Thea- 'r activities for which they have been fined. .. "[O]ne is not to tres, Inc., 427 U. S. 50, 75 (1976) (concurring opinion). have the exercise of his liberty of expression in appropriate My other observation concerns the suggestion that a local I . F1 OCTOBER TERM, 1980 '4' , , ;. '' SCHAD v. MOUNT EPHRAIM 79 1 I , BLACKMUN, J., concurring 452 U.S. ' �*§ 61 STEVENS, J., concurring In judgment community should be free to'eliminate aparticular form of `, t s: expression so long as that form is available .' ' will doubtless be resolved on a case-by-case basis. For now, llable in areas reason- ;, ' `:. it is sufficient to observe that in attempting to accommodate ably nearby. In Mini Theatres the Court dealt with loca- ':- >':�. a locality's concern to protect the character of its community 1` tional restrictions imposed by a political subdivision, the city ," ' ., � :�� ,���.ri;F�... life; the Court must remain attentive to the guarantees of the of Detroit, that preserved reasonable access to the regulated <x First Amendment, and in particular to the protection they form of expression within the boundaries of that same sub- 1 l qd ti' afford to minorities against the "standardization ofideas . . . '' by dominant political or community groups." Termi- division. It would be a substantial step beyond Mini Thea- ` -., ,, tres to conclude that a town or county may legislatively pre- r niello v. Chicago, 337 U. S. 1, 4-5 (1949). `i vent its citizens from engaging in or having access to forms 7., , a ofprotected expressionr':'�''-, JUSTICE POWELL, with whom JUSTICE STEWART joins, ,: 'r that are incompatible with its major- _.?:' ity's conception of the "decent life" solely because these ac- ''` concurring. '`"``"' I join the Court's opinion as I agree that Mount Ephraim aj tivities are sufficiently available in other locales. I do not = ' ; , r read the Court's opinion to reach, nor -, :. has failed altogether to justify its broad restriction of pro- il I would I endorse that however, that some a; ' conclusion.* = - tected expresslon. This is not to say, !! were I a resident of Mount Ephraim, I would not expect w y ,.- communities are not free—by a more carefully drawn ordi- ' .'l my right to attend the theater or to purchase a novel to be s" ' '$ nance—to regulate or ban all commercial public entertain- pro ri- contingent upon the availability of such opportunities ' `V!:; ment. In my opinion, such an ordinance could be a p p in _s`'- "-` t,j - "nearby" Philadelphia, a community in whose decisions I , �,�,,.�rt�,. -__ ate and valid in a residential community where all commercial il 4', would have no political voice. .Cf. Southeastern Promotions = _ activity is excluded. Similarly, a residential community ij Ltd. v. Conrad, 420 U. S. 546, 556 (1975) should be able to limit commercial establishments to essential ri I ("Wine is not to _ ..- . % r: ; have the exercise of his liberty of expression in appropriate -.-"" '`j`"~ neighborhood services permitted in a narrowly zoned area. places abridged on the plea that it may be exercised in some - t-: But the Borough of Mount Ephraim failed to follow these 5 �. . . . eg.;' paths. The ordinance before us was not carefully drawn and, * j.' place," quoting Schneider v. State, 308 U. S..147, 163 ': 's:' other _ as the Court points out, it is suiiabou y ene overinclusive and ( ))._ Similarl I would not ex pect xpect the citizens of Phila- ';� 'w:. 1 ' delphia to be under anyobligation provide _-��-� '- underinclusive that any argument about the need to main- li ation to me with access '"`F "1' ' tain the residential nature of this community fails as a ,,; to theaters and bookstores simply because Mount Ephraim P I :;: . <;.y..,::V' justification.' previously had acted to ban these forDI ms of "entertainment." This case does not require articulation of a rule for evaluat- °" `v: JUSTICE STEVENS, concurring in the judgment. , '1i ing the.meaning of "reasonable access" in different contexts. The scope of relevant zoning authority varies widelyacross "_': The record in this case leaves so ymajny relevant questions- ly ,11 = - unanswered that the outcome, iri my judgment, depends on our country, as do geographic configurations and types of « . 'i commerce among neighboringcommunities, the allocation of the burden of persuasion. If the case is. and this issue *`s ' - _ viewed as a simple attempt by a small residential community *I need not address here the weight to be f ` g given other ar _ to exclude the commercial exploitation of nude dancing from f yoked by local communities as a basis for restricting protected fent s in- _ _ - a "setting of tranquility," post, at 85 (BURGER, C. J., dissent- expression. mg), it would seem reasonable to require appellants to over- I "" OCTOBER T `; • : TERM, 1980 •� SCHAD v. MOUNT EPHRAIM 81 z• ,. S VENS, J. concurring in judgment 452 U.S > ',--a-,-,'.. q S. F ,I- .. :61 STEVENS, J., concurring in judgme. ; come the usual presumption that a municipality's zoning ,` , ~� ` : as well.' - But the record indicates that what actually hap- i!', + enactments are constitutionally valid. To prevail in this - ,x " ' :' pens in this commercial zone may bear little resemblance to I, i case, appellants at least would be required to show that the -4 5 ''• ' ''- what is..described in the text of the zoningordinance. 1 � , exclusion was applied selectively, or perhaps that comparable ` . ; ;> The commercial zone in which appellants' adult bookstore t expressive activity is not "amply available in close-byareas ''' is located is situated alongthe Black Horse Pike, a north- ; outside the limits of the Borou h." 5 v 4,� • " � g Ante, at 76 (opinion of w, south artery on the eastern fringe of the Borough.' The the Court). On the other hand, if one starts, as the Court r s� does, from the premise that "appellants claims are rooted { ' s:.: parties seem to agree that this commercial zone is relatively ` ' in the First Amendment," ante, at 66, it would seem reason- " � presumably, therefore, it contains only a handful of , . ` able to require the Borough to overcome j' � r �� cx' commercial establishments. Among these establishments are ;I. invalidity. The Borough could carry this burden b sh ='" a presumption of =r M :> -� >'' Al-Jo s, also known as the Club Al-Jo, My Dads, and Capri- Y oedotti's, all of which offer live entertainment 4 In addition, � ing that its ordinances were narrowly drawn and furthered :, "a sufficiently substantial government interest." Ante at 68 F. (opinion of the Court) (footnote omitted). U :1:041:: F Neither of these characterizations provides me ,�� � z Section 99-15B of the Mount Ephraim Code, quoted ante,-at 63,.,.. p g > �_ ;. (opinion of the Court), lists the land uses ermitted in the Borou hs isfactory with asat- �.'f:;- commercial zones. No form of entertainment is' included in this list. approach to this case. For appellants' business is ; located in a commercial zone riC�, Section994ofthe Code provides that "[a]ll uses not expressly permittedPa '= in this chapter areprohibited."�� is not une ui � and the character of that zone :�w��' _°��= ,';,? ' unequivocally identified either by the text of the Bor- ough's `" "�" a At oral argument in this Court, counsel for the appellants asserted that I �� Angdh s zoning ordinance or by the evidence in the record. the commercial zone extends for 250 feet on either side of the Black even though the foliage of the First Amendment may g --" Horse Pike, and that the remainder of the Borough is zoned for residential cast r f'i p otective shadows over some forms of nude dentin - see Tr. of Oral Arg. 5. Tim CIF JUSTICE, in dissent, apparently r its roots were germinated by1 relies upon counsel's description of Mount Ephraim's zoning pattern in `.: more serious concerns that are 'not necessarily implicated b support of his contention that Mount Ephraim is a quiet, "`bedroom' ' y acontent-neutral zoning .or di- ..tif _ community" into which appellants have thrust the disruptive influence of r nance banning •commercial •exploitation of live entertainment. ': • ,IT:'--'' nude dancing. See post, at 85. However, counsel's assertion is unsup- i Cf. Young v. American Mini Theatres Inc. ported by the record in this case, and indeed is inconsistent with the i 60-61. 427 U. S. 50 .... >-_s.,: r: 5 ' .=':� . Borough's zoning ordinance. The Zoning Map of the Borough of Mount ,; One of the puzzling features of this case is that the character -""= ``1 =7; Mount Ephraim in fact contains four commercial zones. Section 99-8 of of the prohibition the Borough seeks to enforce is so hard to v~~'ascertain. Because the written zoning ordinance purports the Mount Ephraim Code states that the boundaries of the zoning districts _ :;•.a R_:�.�-. created by99-7 of the Code "are herebyestablished as shown on e P ports to - , sn a;;_r:1 ban all commercial uses except those that are specifically _` > ;' �P entitled 'ZoningMap of the Borough of Mount E hraim'-which ;: : listed—and because no form of entertainment is listed—liter- g P Y . '-a _ accompanies and is hereb made a art.of this chapter. The record• oes, ally it prohibits the commercial exploitation not only of live _A_"�'` -•-= the three additional commercial zones =� Pr. not reveal to what extent, if any, entertainment, but of m , �`""t have been commercially developed, but it is apparent from the Borough's otion •pictures and •inanimate formsa ,. r=it':-:= Cade that Mount Ephraim either has accepted or is prepared to accept a ;. iry : <' f-;,,; greater degree of commercial development than that presently found in oSee, e. , Doran v. Salem Inn Inc. 422, T.J. S. 922, 932• Southeastern = t5-•:: the vicinity of appellants' bookstore.Promotions, Ltd. v. Conrad, 420 U. S. 546, 557-558; California v. LaRue, ,+' "s` See Munic. Ct. Tr. 21-22, 35-37, 55,-58-59, 67. My Dads, which is 409 U. S. 109, 118. :,:,, s„._v. 4 `�' located directly across the street from appellants' bookstore, features a i - 82 OCTOBER TERM, 1980 yti_ • ? ' ' SCHAD v. MOUNT EPHRAIM 83 STEVENS, J., concurring in judgment 452 Uii .S. - `" 61 STEVENS, J., concurring in judgment f j. the zone contains the Mount Ephraim Democratic Club, the rL. Without more information about this commercial enclave i ;! P - ter;; 1 ;I Spread Eagle Inn, and Guiseppi's.5 The record also con- `v=" -: ' on Black Horse Pike, one cannot know whether the change ;i,i6 tains isolated references to establishments known as the Villa :=a `- in appellants' business in 1976 introduced cacopho al reel a ;�;'d Picasso and Millie's.' Although not mentioned in the rec- "'' "µ= tranquil setting or merely a new refrain in a local replica ord, Mount Ephraim apparently4 : Ili palso supports ` °`''=a commercial `�,•���'a�;r>.._ of Place Pigalle. If I were convinced that the former is the ,�i!�� motionpicture theater.? Y "'wc:',.: F correct appraisal of this commercial zone I would have no il `: The record reveals very little about the character of most - "'_' =. k. g hesitation in agreein with T��. CaIEF JUSTICE that even ifpl of these establishments, and it reveals nothingat all about �`"``` the live nude dancing is a form of expressive activity pro- ;I,;1 w, ems._ 'i =, rahibit • the motion picture theater. The one fact that does appear �;L ,,,3 pp tected by the First Amendment the Borough may p ,i with clarity from the present record is that, in 1973, appel- _ ` _ it 9 But when the record is opaque, as this record is, I be- ;n:. lants were issued an amusement license that authorized them �'-'>''yy; lieve the Borough must shoulder the burden of nmenstrat- ; to exhibit adult motion pictures which their patrons viewed x in that appellants' introduction of live entertainment had in private booths in their adult bookstore. Borough officials °w _ >' an identifiable adverse impact on the neighborhood or on the , _z Borough as a whole. It might be appropriate to presume ' ; apparently regarded this business as lawful under the zoning . 5vs ordinance and compatible with the immediate neighborhood ',W that such an adverse im act would occur if the zoning plan 1: i until July1976 when appellantsg - !^y g } repainted their exterior signwk= :_ .. itself were narrowly drawn to create Cate ories of commer- and modified their interior exhibition.' `=` unambiguously differentiated this entertain- :> , cial uses that i ; r. . ` ment from permitted uses. However, this open-ended ordi- IA musical combo that plays music from a stage; a vocalist also performs ' Y;' Hance affords no basis for any such presumption. 1, ti there on occasion. Id., at 25, 35-36. Capriotti's, a. dinner club/dis- ~` ,t.,µ The difficultyin this case is that we are left to speculate cotheque, and Al-Jo's also feature live performances by musical groups. "z ;V Id, at 22, 36, 55, 58-59. The Borough permits live entertainment in • z'- as to the Borough's reasons for proceeding against appellants' 1 1 these establishments as a prior nonconforming use. , pp. 4 1 S See id., at 19-20. Appellants' counsel, in his examination of the Y,,,��,; which appellants ultimately won in the state courts. See A to Juris. Borough's:building inspector at the Municipal Court trial, attempted to ' _ =` $' Statement 5a-6a. , ,/ establish that some or all of these establishments had been issued amuse_ ' F.!,'- 9 T Cgs JUSTICE states: . ment licenses by the Borough. The building £ ' "It is clear that,in passing the ordinance challenged here,the citizens of the inspector, whose duties did Borough of Mount Ephraim meant only to preserve the basic character �s i not include the issuance or supervision of amusement licenses, was unable =,=.-,z*Fl=`:' g to answer counsel's questions. See ibid. : s of their community. It is just as clear that, by thrusting their live nude 6 M1 YV See id. at 21 38. dancing shows on this community, the appellants alter and damage that 'Counsel for both-parties informed the Court at oral argument that a f"`z" objections!' Post, at 6. roblem with T$E CiHIEF JUSTicEs8analys]s; in my judgment,�s __ ___ _. communityover its o _ i motion picture theater is in operation in Mount Ephraim. See Tr, of ,,ri The p Oral Arg. 6, 9, 37-39. The theater apparently is located near and to the ` '. " that "the basic character of [the] community" is not at all clear on the east of appellants' bookstore. See id., at 9. According to counsel for the a basis of the present record. Although Mount Ephraim apparently is pri- Borough, the theater is permitted as a prior nonconforming use. See id., - warily a residential community,it is also a community that in 1973 deemed. • at 37-39; see also ante, at 67, n. 6 (opinion of the Court). r '' an adult bookstore that exhibited adult motion pictures, or peep , 8 The Borough objected to both the exterior and the interior changes. -.4:4::. :'••i ,-,`- not inconsistent with its basic character. I simply cannot say with con- A substantial part of the proceedings in the Municipal Court and the fidence that the addition of a live nude dancer to this commercial zone Camden County Court concerned the repainting p P g of the si gn, a dis ute in 1976 produced a dramatic change in the community's character. • a4:. ' OCTOBER TERM, 1980 {• SCHAD v. MOUNT EPHRAIM 85 T? , I .+"'4 7 STEVENS, J., concurring in BURGER, C. J., dissenting : g judgment 452 U.S. ,q , x s 61 p ` 1 and without endorsing the overbreadth analysis business, and as to the justification for the distinction the : u . t ::cording y, li:i' ! Borough has drawn between live and other forms of enter- " t employed by the Court, I concur in its judgment. { x--,,, tainment. While a municipality need not persuade a federal . -� r .._I,,:;_. . r z �4 G`SIEF JIISTICE BURGER, with whom JUSTICE I�EHNQIIIST court that its zoning decisions are correct as a matter of '�7� t + 1 policy, when First Amendment interests are implicated it .. , Dins, dissenting. i. �' must at--least be able to demonstrate that a uniform y ,-:. ' ' ,� policy 3 The Borough of Mount Ephraim is a small boroughIn _ � � Camden County, N. J. It is located on the Black Horse ¢' in fact exists and is applied in a content-neutral fashion. ;G> with two • Presumably, municipalities may regulate expressive activ- _= 1 Turnpike, the main artery connecting Atlantic City �,-`z__:- : '; ity--even protected activity—pursuant— ' or cities, Camden and Philadelphia. Mount Ephraim is I I'F y pursuant to narrowly drawn ' :' ' `- maj content-neutral standards; however, theymaynot regulate =__ r': about 17 miles from the city of Camden and about the same ' ais �~`'' •distance from the river that separates New Jersey from the ;i. protected activity when the only standard provided the '=;' ,,,--i,. - State of Pennsylvania. ` unbridled discretion of a municipal official. Compare Sazca - tar'p '= + - .: The Black Horse Turnpike cuts through the center of „,. v. New York, 334 U. S. 558, with Kovacs v. Cooper, 336 U. S. " =Fa. ;' '''' _ ,A• Mount Ephraim. For 250 feet on either side of the turn- 77. Because neither the text of the zoning ordinance nor �.=r ' - ' the evidence in the record indicates that a -,. pike, the Borough has established a commercial zone. The Mount Ephraim _ =a_ . :��:�4.-_- rest of the community is zoned for residential use, with eit er applied narrowly drawn content-neutral standards to the a x y units ermined. Most of theninhabit- p- tit'-� single- or multi-family p ;6= 3V., i' � pellants' business, for me this case involves a criminal pros- i'.114?'''' :» ,;�_' antsofMountEphricommute to either Camden or Phila- 'T' i !i ecution of appellants simply because one of their em 1 :,: i ,-[,.-,_ - has en e p oyees. del- hia for work. i �; : -, gag d in expressive activity that has been assumed, `* The residents of this small enclave chose to maintain their F T i arquendo, to be protected by the First Amendment 11 Ac '- rti_ " Y 1, f 4 town as a placid, `bedroom community of a few thousan '' ``;:-i' 1� 'fi people. To that end, they passed an admittedly broad regcl.- 1I.+F; .+r The open-ended character of the prohibition in the Mount Ephraim `-'' = - ulation prohibiting certain forms of entertainment. Because +:;,,, , ;. Code, see n. 2 supra le are—within limits p a, presents an opportunity for the exercis e se of just such #' I believe that a community of t, I , + , unbridled discretion. The Borough has, at different stages of this litiga- ;4L r:•- .-.„? _, �,. - _ belies of their own environment, I would hold that, as aps f j : : i tion, advanced two different interpretations of that prohibition. Accord- `_ _ I'' "- - =" '`` lied the ordinance is valid. i i � .:...::� ing to one, all commercial entertainment is y�"` ¢=`-' � - I ! prohibited within the bound- :•�a ;l�:. ;.�::_=v... .. , cries of Mount Ephraim; to the other only commercial live according At issue here is the right of a small community to ban an i `, • entertainment is prohibited. See ante, at 67, n. 6 (o(opinion of the Court . 1,- 'Y �z '4`_ activityincom incompatible with a quiet, residential atmosphere. p ) 1,4 ' ' . Appellants have suggested yet a third possible interpretation. They main_ E` - phq i e did nothing more tha_n___ i :,1 ; - fain that the prohibition is applied only against live nude dancing. The Borough "of Mount' EP provide a setting Of [{p police over to p - -1, .-7A employ traditional P 11 Like JUSTICE POWELL, ante; at 79 (concurring opinion), I have no •,',- 3'? tranquility. This Court has often upheld the power of'a ' doubt that some residential communities may, y; pursuant to a carefull "i i "`"�`= c� drawn ordinance, regulate or ban commercial public entertainment within i_.; >'_,:. community to determine that the community should be their boundaries. Surely, a municipality zoned entirely for residential user`s; - beautiful as well as healthy, spacious as well as clean, well- need not create a •special commercial zone solely to accommodate purveyors`' t of entertainment. Cf. Valley View Village v. Pro eft 221 F. 2d 412, _f ___ 417-418 (CA6 1955) (Stewart, J. 9i f: ` > = for residential use is not per se invalid). Mount Ephraim,however,is not -.+ __w such a municipality. (zoning ordinance that provides only - • I I .:r5 a r { r.•.' 1ua' =x X : GULF OIL CO. v. BERNARD 89 B17RGER, C. J di ,tq. - ' ,. must scenting 452 U Syllabus first enable the government to control the P ; erned; and ' in the gov-'�'� � �=z next place oblige it to control `" This expresses the itself." t ' a`:. GULF OIL CO. ET AL. V. BERNAR,D ET AL. balancin � n '�'"'i and the Bill of Ri g indispensable in all governing, ` t . - " ; a Rights is one of the checks to control over-.. _M.'''.. % CERTIORARI TO THE UNITED STATES COURT OF APPEAALS FOR THE reaching by government. _• s= FIFTH CIRCUIT p But it is a check to be exercised „i.,,,,:,:.;„:"?',--!-- "s aringly by federal authorit • y ' ''= '' g g yoverlocalexpressionsofchoice _:F}* ��"yNo. 80-441. Argued March 30, 1981—Decided June 1, 1981 3, going to essentially local concerns. »- I am constrained r' '=;to note that some of the cone • . ,. . Petitioner Gulf Oil Co. and the Equal Employment Opportunity Commis- ( exhibit an understandable g views .J `'' -�5;scion entered into a conciliation agreement involving alleged discrimina- 1 • ing this small residential enclave he powere idea of deny- �,, 'lion against black and female employees at one of Gulf's refineries. of show business from its very to keep this ki•nd .Under this agreement, Gulf undertook to offer backpay to alleged vic- Mount E doorste s. tuns of discrimination and began to send notices to employees eligible Ephraim has not sp The Borough of c.�` ::::c-1-;;;;;;::ftullorattem ted to su r Yy, gview of an p pp ess the bac a statin the amountavailableinreturn for execution of a yone or to sti$e Pointof release of all discrimination claims. Respondents then filed a class that there is a First any category of ideas. To sa -°', "�,,,-' .t ;;action in Federal District Court against Gulf andpetitioner labor union, Amendment right to ' y�' g f' �;' of expression on everyg impose every form t' r A 3 ;�behalf of all black present and former employees and rejected appli- co pression" involved here, is sheer nonsense. To the kind of "ex- w;� j � '"cants for employment, alleging racial discrimination in employment and a notion in the Constitution ignoresTo enshrine such eeIrs•ng injunctive, declaratory, and monetary relief. Gulf then filed a y' the fundamental _motion seeking an order limiting communications from the named • Constitution ought values ��`• -`• �• ��° `al !! = g t to protect. To invoke the Fhat yr: n ,,plaintiffs (respondents) and their counsel to class members. Ultimately, Amendment to If protect the activit First ' ";« �'• , over respondents': objections, the District Court issued an order, based I trivializes and demeansY involved in this case on the form of order in the Manual for Complex Litigation, imposing a I that great Amendlrient. W :`complete ban on all communications concerning the class action between `• ` k A t parties or their counsel and any actual or potential class member who wash not a formal party, without the court's prior approval. The order ff` i• t::• :' • sue- F"stated that if any party or counsel asserted a constitutional right to kf `eammunicate without.prior restraint and did so communicate, he must �r file a copy of the communication with the court. The court made no t a M1 ,, t., findings of fact and did not write an explanatory opinion. The Court + ' s- 7 ;> 4 s 'of-Appeals .reversed, holding that the order limiting communications ! `' ;an unconstitutional prior restraint on expression accorded First i�' _ - - s ginendment protection. •- I1 i ,. - - rHe1dThe' District Court in imposing the order in question abused its" I'' f�, ---- , , *_ retion-under the Federal Rules of Civil Procedure: Pp. 99-104. `- #= ` 4(a) :The order is inconsistent with the general policies embodied in ' ; :§ yFederal Rule of Civil Procedure 23, which governs class actions in :•;; .1 °federal district courts. It interfered with respondents' efforts to inform j,- p , # ' • - potential:class members of the existence of•the lawsuit, and may have, - ` r. ' • been particularly injurious—not only to respondents but to the class as i a-whole—because employees at that time were being pressed to'decide t - ' ''`4 whether' to accept Gulf's backpay offers. In addition, the order made • Yw • .=z . • • i is Y .." - - • af., ,