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Date: 10-23-2021
Case Style:
Baby Dolls Topless v. City of Dallas Texas
Case Number: 00-10651
Judge: RHESA HAWKINS BARKSDALE
Court: UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
Plaintiff's Attorney:
Defendant's Attorney: United States Attorney’s Office
Description:
New Orleans, LA - First Amendment rights lawyer represented Plaintiff-Appellant with arguing whether the City of Dallas violated certain establishments’ First Amendment rights claim.
In 1986, after studying other cities’ efforts in regulating
SOBs, the City enacted Chapter 41A of the Dallas City Code “to
promote the health, safety, morals, and general welfare of the
citizens of the city, and to establish reasonable and uniform
regulations to prevent the continued concentration of [SOBs] within
the city”. DALLAS, TEX., CODE § 41A-1 (1986). Among other things,
Chapter 41A subjected SOBs to certain zoning restrictions,
including the requirement that they be located at least 1,000 feet
from other SOBs, churches, schools, residential areas, and parks
(location provision). It defined a SOB as “an adult arcade, adult
3
bookstore or adult video store, adult cabaret, adult motel, adult
motion picture theater, adult theater, escort agency, nude model
studio, or sexual encounter center”. Id. § 41A-2(17). Chapter
41A-2 contained the following definitions:
(3) ADULT CABARET means a nightclub, bar,
restaurant, or similar commercial
establishment which regularly features:
(a) persons who appear in a state of
nudity; or
(b) live performances which are
characterized by the exposure of “specified
anatomical areas” or by “specified sexual
activities”; or
(c) films, motion pictures, video
cassettes, slides, or other photographic
reproductions which are characterized by the
depiction or description of “specified sexual
activities” or “specified anatomical areas.”
....
(13) NUDITY OR STATE OF NUDITY means the
appearance of a bare buttock, anus, male
genitals, female genitals, or female breast.
....
(18) SPECIFIED ANATOMICAL AREAS means human
genitals in a state of sexual arousal.
(Emphasis added.) These definitions, as well as the location
provision, were held constitutional. See Dumas v. City of Dallas,
648 F. Supp. 1061 (N.D. Tex. 1986), aff’d sub nom. FW/PBS, Inc. v.
City of Dallas, 837 F.2d 1298 (5th Cir. 1988), aff’d in part, rev’d
in part and vacated in part on other grounds, 493 U.S. 215 (1990).
4
In order to avoid SOB status and, as a result, inter alia,
having to relocate, some establishments (including most of
Plaintiffs’) changed their dancers’ attire to “simulate” nudity:
bikini bottoms and flesh-colored pasties over the areolae of the
female breast. Doing so enabled them to obtain “dance hall”
licenses under Dallas City Code Chapter 14. (As the district court
noted in this action, consistent with findings stated in the
Ordinance at issue, Chapter 14 “did not, and wasn’t designed to,
regulate [SOBs]”. Baby Dolls Topless Saloons, Inc. v. City of
Dallas, 114 F. Supp. 2d 531, 535 (N.D. Tex. 2000).)
In the face of this attempt, through Chapter 14, to avoid SOB
status, the City enacted Ordinance 21184 in 1992, amending Chapter
14 to create a new classification of dance halls: Class D.
Establishments receiving the new Class D classification were
subject to location provisions similar to those in Chapter 41A,
covering SOBs. In short, the new Class D status was equivalent to
being a SOB.
That ordinance contained, inter alia, the following
definitions:
CLASS D DANCE HALL means any place:
(A) where dancing is permitted one day a
week or more by a person in a state of seminudity or simulated nudity[.]
....
SEMI-NUDITY means a state of dress in which
clothing covers no more than the genitals,
5
pubic region, buttocks, and areolae of the
female breast....
SIMULATED NUDITY means a state of dress in
which a device or covering, exposed to view,
is worn that simulates any part of the
genitals, buttocks, pubic region, or areolae
of the female breast.
Dallas, Tex., Ordinance 21184 (emphasis added). The location
provisions and simulated nudity definition were upheld against
First Amendment challenges. See MD II Entm’t, Inc. v. City of
Dallas, No. 3:92-CV-1090-H, 1993 WL 227774 (N.D. Tex. 1993) (MD II
(1)), aff’d, 28 F.3d 492 (5th Cir. 1994).
Therefore, again to avoid SOB status and resulting relocation,
many establishments (including most of Plaintiffs’) once more
changed their dancers’ attire: to non-flesh-colored, opaque
pasties and bikini bottoms substantially covering the pubic region
and buttocks. Doing so enabled them to apply for, and operate
under, Class A dance hall licenses, instead of having Class D/SOB
status and being required to relocate.
As a result, in 1993, the City enacted Ordinances 21837 and
21838, amending Chapters 14 and 41A respectively, “because certain
businesses featuring adult entertainment [had] found a way to
circumvent the location restrictions set forth in [those]
Chapters”. Baby Dolls, 114 F. Supp. 2d at 536. The new ordinances
included the following definitions:
NUDITY or a STATE OF NUDITY means:
6
(A) the appearance of a human bare
buttock, anus, male genitals, female genitals,
or female breast; or
(B) a state of dress that fails to
opaquely cover a human buttock, anus, male
genitals, female genitals, or any part of the
female breast below the top of the areola.
....
SEMI-NUDITY means a state of dress in which
clothing covers no more than the genitals,
pubic region, buttocks, and any part of the
female breast below the top of the areolae....
....
SIMULATED NUDITY means a state of dress in
which any device or covering, exposed to view,
is worn that simulates any part of the
genitals, buttocks, pubic region, or any part
of the female breast below the top of the
areolae.
Dallas, Tex., Ordinances 21837, 21838 (emphasis added; 21837
(amending § 14) and 21838 (amending § 41A) were enacted the same
day.) The effect of the ordinances was to require dancers at
businesses such as Plaintiffs’ to, among other things, wear bikini
tops in order for the businesses to avoid SOB classification and
concomitant relocation.
The amendments to the terms “nudity”, “semi-nudity”, and
“simulated nudity” were held violative of the First Amendment. See
MD II Entm’t, Inc. v. City of Dallas, 935 F. Supp. 1394 (N.D. Tex.
1995) (MD II (2)), aff’d, 85 F.3d 624 (5th Cir. 1996) (per curiam;
table). Among other things, the district court held: “no evidence
indicate[d] that the drafters of the 1993 amendments relied upon
7
any studies indicating [the amendments’] necessity or
effectiveness”, id. at 1397; and “no evidence indicates that a
requirement that dancers wear bikini tops instead of pasties will
reduce deleterious secondary effects”, id. at 1398. In this light,
the district court concluded that the challenged amendments were
content-based and impermissible restrictions on protected
expression. Id. at 1399.
In a one paragraph opinion, our court affirmed. It agreed
with the district court’s finding “‘no evidence indicat[ing] that
a requirement that dancers wear bikini tops instead of pasties will
reduce deleterious secondary effects’”. No. 95-10322 (5th Cir. 30
Apr. 1996) (per curiam; unpublished).
In the light of MD II (2), the City consulted, and considered,
data and studies concerning the deleterious secondary effects of
SOBs, including: 1983, 1986, 1991, and 1997 studies by the City of
Houston (Houston studies); a summary of land use studies compiled
by the National Law Center for Children and Families; and 1994 and
1997 studies conducted, at the City’s request, by the Malin Group
(Malin studies).
The Malin Group reviewed studies completed by Austin, Los
Angeles, Indianapolis, Phoenix, and New York (which found SOBs to
have a variety of deleterious secondary effects, including
increased crime rates, lowered property values, and the
deterioration of community character and quality of life). In
8
addition, the Malin Group studied the secondary effects of SOBs in
Dallas.
The Dallas study compared a study area containing seven SOBs
to two control areas, the first containing no SOBs and the second
containing two SOBs located a half-mile apart but within 1000 feet
of residential uses. After gathering data on a number of
categories of crime, the study concluded that sex-related crime
rates in the study area were more than three times higher than the
city-wide average and five to ten times higher than in the control
areas. In addition, the study found that, inter alia, properties
in areas surrounding SOBs had lower values, were more difficult to
lease, and remained on the market longer than in other areas.
The Malin studies did not consider whether the contested
change in dancer attire (from pasties to bikini tops) would impact
these deleterious secondary effects. Likewise, as Malin testified
during a preliminary injunction hearing, the other studies his
group had reviewed did not consider that question.
Beyond the mentioned studies, the City Plan Commission and
City Council conducted four public hearings regarding SOBs and the
proposed amendments. The City Zoning Ordinance Advisory Committee
received public comment on the amendments. And, the City Council
held at least six town hall meetings regarding SOBs and the
proposed amendments.
9
In 1997, the ordinance at issue was enacted by the City:
Ordinance 23137 (the Ordinance), which again amended Chapters 14
and 41A. The district court found:
The enactment of [the] Ordinance ... was a
response to the City Council’s expressed
concern to better protect the public health,
safety, and welfare, and was intended to
address the deleterious secondary effects of
[SOBs], and to enhance land use protection for
residential areas and other surrounding areas.
Baby Dolls, 114 F. Supp. 2d at 539.
The Ordinance eliminates the Chapter 14 Class D (SOB) dance
hall classification and retains the definition of “sexually
oriented business”: “an adult arcade, adult bookstore or adult
video store, adult cabaret, adult motel, adult motion picture
theater, adult theater, escort agency, nude model studio, or sexual
encounter center”. But, it amends Chapter 41A-2 to read, in
pertinent part:
(3) ADULT BOOKSTORE or ADULT VIDEO STORE
means a commercial establishment that as one
of its principal business purposes offers for
sale or rental for any form of consideration
any one or more of the following:
(A) books, magazines, periodicals or
other printed matter, or photographs, films,
motion pictures, video cassettes or video
reproductions, slides, or other visual
representations that depict or describe ...
“specified anatomical areas”....
(4) ADULT CABARET means a commercial
establishment that regularly features the
offering to customers of live entertainment
that:
10
(A) is intended to provide sexual
stimulation or sexual gratification to such
customers; and
(B) is distinguished by or characterized
by an emphasis on matter depicting,
simulating, describing, or relating to
“specified anatomical areas”....
....
(6) ADULT MOTION PICTURE THEATER means a
commercial establishment where, for any form
of consideration, films, motion pictures,
video cassettes, slides, or similar
photographic reproductions are regularly shown
that are characterized by the depiction or
description of ... “specified anatomical
areas.”
....
(17) NUDITY or a STATE OF NUDITY means:
(A) the appearance of a human bare
buttock, anus, male genitals, female genitals,
or female breast; or
(B) a state of dress that fails to
completely and opaquely cover a human buttock,
anus, male genitals, female genitals, or any
part of the female breast or breasts that is
situated below a point immediately above the
top of the areola.
....
(24) SPECIFIED ANATOMICAL AREAS means:
(A) any of the following, or any
combination of the following, when less than
completely and opaquely covered:
(i) any human genitals, pubic region, or
pubic hair;
(ii) any buttock; or
11
(iii)any portion of the female
breast or breasts that is situated
below a point immediately above the
top of the areola....
(Emphasis added.) The amended definitions of “specified anatomical
areas” and “nudity or a state of nudity” contain substantially the
same language as had Ordinances 21837 and 21838 (1993), held in MD
II (2) violative of the Constitution.
These amended definitions operate to classify Plaintiffs as
SOBs (i.e., adult cabarets). Accordingly, Plaintiffs must either
comply with Chapter 41A’s SOB location and licensing provisions or
avoid SOB classification (and, therefore, remain at their current
locations) by requiring their dancers to, inter alia, wear bikini
tops.
In June 1997, Plaintiff Baby Dolls Topless Saloons, Inc.,
which had been denied a SOB license because of non-compliance with
Chapter 41A’s location provisions (the specific issue, discussed
infra, concerned zoning to streets’ center lines), brought this
action as an as-applied challenge to its license denial. The
district court permitted intervention by 11 other establishments
which challenged the Ordinance on a variety of First and Fourteenth
Amendment grounds and sought declaratory and injunctive relief. In
March 1998, the court preliminarily enjoined the City from, inter
alia, enforcing Chapter 41A against Plaintiffs through the amended
definition of “specified anatomical areas”.
12
Following a bench trial in September 1998, the district court
entered judgment for the City in May 2000. In extremely detailed
and comprehensive findings and conclusions, the court held: the
City was not precluded from litigating the Ordinance’s
constitutionality, 114 F. Supp. 2d at 542; the Ordinance was a
content-neutral time, place, or manner regulation and satisfied the
test for such regulations, id. at 544-49; the Ordinance is not
overbroad, id. at 543-44; a related “no-touch” provision of Chapter
41A-18.1 is constitutional, id. at 549; and zoning residential
districts to the center line of streets (which resulted in the
denial of Baby Dolls’ SOB license) was constitutional, id. at 542-
43.
II.
Bench trial findings of fact are reviewed for clear error;
conclusions of law, de novo. E.g., Joslyn Mfg. Co. v. Koppers Co.,
Inc., 40 F.3d 750, 753 (5th Cir. 1994). Although numerous
conclusions of law are challenged in this appeal, no findings of
fact are. Our standard of review is further discussed with respect
to each issue.
A.
Plaintiffs contend that, in the light of MD II (2), the City
is collaterally estopped from litigating the Ordinance’s
constitutionality. Collateral estoppel vel non is a question of
law reviewed de novo. E.g., United States v. Brackett, 113 F.3d
13
1396, 1398 (5th Cir.), cert. denied, 522 U.S. 934 (1997). In
considering collateral estoppel, we decide whether
(1) the issue under consideration is identical
to that litigated in the prior action; (2) the
issue was fully and vigorously litigated in
the prior action; (3) the issue was necessary
to support the judgment in the prior case; and
(4) there is no special circumstance that
would make it unfair to apply the doctrine.
Winters v. Diamond Shamrock Chem. Co., 149 F.3d 387, 391 (5th Cir.
1998) (emphasis added; quoting Copeland v. Merrill Lynch & Co., 47
F.3d 1415, 1422 (5th Cir. 1995)), cert. denied, 526 U.S. 1034
(1999). Here, the first and fourth prongs are of primary concern.
As noted, MD II (2) concerned the constitutionality of 1993
amendments to the definitions of nudity, semi-nudity, and simulated
nudity to include “any part of the female breast below the top of
the areola”. The district court then held: as quoted earlier,
“[n]o evidence indicates that the drafters of the 1993 amendments
relied upon any studies indicating their necessity or
effectiveness”, 935 F. Supp. at 1397; “[n]o evidence indicates
that the city conducted public meetings to consider any information
regarding semi-nude dancing, deleterious secondary effects, or the
relationship of the two”, id. at 1398; and, as also quoted earlier,
“no evidence indicates that a requirement that dancers wear bikini
tops instead of pasties will reduce deleterious secondary effects”,
id. Accordingly, it held: the City had “failed to show that a
substantial governmental interest was the predominant factor
14
motivating it in enacting the amendments”, id. at 1397 (emphasis
added); and “the 1993 amendments [were] content-based restrictions
on protected expression”, id. at 1399. Accordingly, it awarded
plaintiffs summary judgment. As stated, our court affirmed. 85
F.3d 624 (5th Cir. 1996) (per curiam; table).
For this action, in holding the City not estopped from
litigating the constitutionality of the Ordinance (enacted in
1997), the district court concluded:
The issue in this case is not “identical” [to
that] in MD II (2) because this case presents
the constitutionality of a[] different
ordinance, which uses the same language as the
unconstitutional ordinance in MD II (2), that
was enacted by the City after considerable
study and fact-finding, which were lacking in
MD II (2).
Baby Dolls, 114 F. Supp. 2d at 542. It also held that, per the
fourth collateral estoppel prong, “the enactment of [the] Ordinance
... after the City’s fact-finding is a ‘special circumstance’ that
makes the application of issue preclusion unfair”. Id.
Plaintiffs maintain the merits-issue here is identical to that
in MD II (2). They characterize it as “whether the regulation of
dancer attire through requiring the bottom half of a dancer’s
breasts to be covered is an impermissible content-based
restriction”. (Emphasis added.) Content-neutrality vel non is an
issue in both cases, but only in a general sense. The contentneutrality vel non of a given ordinance is, as discussed below, a
15
function of a city’s predominant concern in enacting that
ordinance, and the ordinance at issue here is not the same as was
at issue in MD II (2).
“[C]hanges in facts essential to a judgment will render
collateral estoppel inapplicable in a subsequent action raising the
same issues”. Montana v. United States, 440 U.S. 147, 159 (1979).
As discussed, between MD II (2) and enactment of the Ordinance, the
City conducted and reviewed studies, held public hearings, and took
public comment on the proposed amendments and the SOBs’ secondary
effects. Plaintiffs may not agree that those activities are
reasonably believed to be related to deleterious secondary effects
of their establishments. But, that is a separate issue on the
merits, to be answered in the light of the evidence that the City
gathered and considered in enacting the Ordinance.
B.
“Whether ... free speech rights have been infringed is a mixed
question of law and fact [and t]he appropriate standard of review
is de novo”. Int’l Soc’y for Krishna Consciousness of New Orleans,
Inc. v. Baton Rouge, 876 F.2d 494, 496 (5th Cir. 1989) (citing
Dunagin v. City of Oxford, 718 F.2d 738, 748 n.8 (5th Cir. 1983),
cert. denied, 467 U.S. 1259 (1984)).
Plaintiffs maintain that, in reviewing their First Amendment
challenge to the amended definition of “specified anatomical areas”
(SAAs), the district court erred by applying the test for content-
16
neutral time, place, or manner regulations set out in City of
Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). They
assert: the Ordinance is not content-neutral because it “targets
the essential expressive nature of the featured entertainment of
the Cabarets’ business”; and its “justification ... was not shown
to be related to the ‘secondary effects’ focus of the Ordinance”.
Under Renton, “zoning ordinances designed to combat the
undesirable secondary effects of [SOBs] are to be reviewed under
the standards applicable to ‘content-neutral’ time, place, and
manner regulations”. 475 U.S. at 49 (emphasis added). And,
“findings of the [City] as to the secondary effects of sexually
oriented businesses [can] satisfy us ... that [its] predominant
concern was with secondary effects and not the content of
expression itself”. SDJ, Inc. v. City of Houston, 837 F.2d 1268,
1273 (5th Cir. 1988), cert. denied, 489 U.S. 1052 (1989). SDJ,
Inc., involved a similar zoning scheme that imposed location
restrictions on establishments “characterized by an emphasis on
matter depicting, describing or relating to ... specified
anatomical areas”, defined as “[l]ess than completely and opaquely
covered ... [f]emale breast[s] ... below a point immediately above
the top of the areola”. Id. at 1278 n.36 (emphasis added).
As noted, for the ordinance at issue here, the City
commissioned studies and engaged in a series of public hearings,
comment-taking, and town hall meetings regarding SOBs’ deleterious
17
effects. The City’s concerns are adequately expressed in the
Ordinance’s preambulary language:
WHEREAS, the provisions of Chapter 14
governing Class A dance halls are intended to
regulate businesses where clothed patrons
dance and not businesses where unclothed or
scantily clad dancers perform to provide
sexual stimulation and gratification to
patrons; and
WHEREAS, the city council finds that such
[latter] businesses operating as Class A dance
halls under Chapter 14[, thereby avoiding
Class D status and the concomitant location
provision,] are, in effect, [SOBs] and have
the same harmful secondary effects on the
surrounding community as the [SOBs] currently
regulated under Chapter 41A; ...
....
WHEREAS, the city council finds that a
concentration of [SOBs] continue[s] to
contribute to a decline in the value of
surrounding properties, to an increase in
criminal activities in the surrounding
community, and to urban blight and a downgrade
in the quality of life in the surrounding
community; ...
....
WHEREAS, the city council believes that,
to better protect the public health, safety,
and welfare, it is necessary to adopt
additional amendments to Chapter 41A that
would enhance land use protection to
residential areas and other surrounding areas;
... restrict the location of [SOBs] near
child-care facilities to protect the children
that attend those facilities; and establish
rules of conduct for certain [SOB] employees
and customers....
Dallas, Tex., Ordinance No. 23137 at 2-5 (emphasis added).
18
Plaintiffs maintain, however, that the evidence the City
relied upon is irrelevant to the Ordinance. They reiterate one of
the several earlier-quoted concerns of MD II (2): “No evidence
indicates that a requirement that all dancers wear bikini tops
instead of pasties will reduce deleterious secondary effects”. 935
F. Supp. 1398-99. In this regard, Plaintiffs emphasize two of the
district court’s findings in the action at hand: “the Malin
studies did not study whether a change in a dancer’s attire from
pasties to bikini tops would affect secondary effects”; and “Malin
... testified that his studies indicated that the change in attire
would not have an impact on secondary effects”. Baby Dolls, 114 F.
Supp. 2d at 540. According to Plaintiffs, there must be specific
evidence linking bikini tops to reducing secondary effects.
Renton, however, does not require a “city to demonstrate[,]
... with empirical data, that its ordinance will successfully lower
crime”, at least “not without actual and convincing evidence from
plaintiffs to the contrary”. City of Los Angeles v. Alameda Books,
Inc., 122 S. Ct. 1728, 2002 WL 970712, at *9 (U.S. 13 May 2002)
(plurality). “Such a requirement would go too far in undermining
[the] settled position that municipalities must be given a
reasonable opportunity to experiment with solutions to address the
secondary effects of protected speech”. Id. (internal citations
and quotation marks omitted).
19
Renton teaches us that the government must
produce some evidence of adverse secondary
effects produced by ... adult entertainment in
order to justify a challenged enactment using
the secondary effects doctrine.... Renton also
instructs us that a government must present
sufficient evidence to demonstrate “a link
between the regulation and the asserted
governmental interest,” under a “reasonable
belief” standard....
J&B Entm’t, Inc. v. City of Jackson, 152 F.3d 362, 371-72 (5th Cir.
1998) (emphasis added; quoting Renton, 475 U.S. at 51-52).
Accordingly, we must determine whether, under this reasonable
belief standard, the City’s evidence demonstrates a link between
its interest in combating secondary effects and the Ordinance.
That standard is satisfied. The Ordinance was enacted, in
part, because the City had found that, through Chapter 14, entities
that were, in effect, SOBs were avoiding that classification; and
that concentrated SOBs “continue to contribute to ... an increase
in criminal activities in the surrounding community”. Dallas,
Tex., Ordinance 23137 (preamble). Among other relied-upon data,
the 1997 Malin Study supports that increased-criminal-activities
finding. From January 1993 through March 1997, there were 396
arrests for sex crimes (“Rape, Prostitution/Commercial Vice[,] and
other Sex Offenses”) in the study area (which included a
concentration of seven SOBs), as compared to 133 such arrests in
one control area (containing two SOBs located approximately a half-
20
mile apart) and 77 such arrests in another control area (containing
no SOBs).
In short, sex crime arrests were three to five times more
frequent in the study area. While the Malin Study is careful not
to attribute this disparity entirely to SOBs, it did find a
correlation between SOBs — specifically, their “hours of operation
and the type of people which SOBs attract” — and higher crime
rates.
These findings are “reasonably believed to be relevant to the
problem that the [C]ity addresses”. Renton, 475 U.S. at 51-52
(emphasis added). The City relied upon specific evidence showing,
inter alia, higher crime rates in the vicinity of SOBs. The City’s
attempts to deal with that reality had been continuously frustrated
in the past, most recently by “exploitation of a ‘loophole’ in the
City Code that permitted such businesses to avoid the location
restrictions by obtaining dance hall licenses pursuant to Chapter
14, which was not originally designed to regulate such businesses”.
Baby Dolls, 114 F. Supp. 2d at 547 (emphasis added).
“[T]he Ordinance is a comprehensive amendment to Chapters 14
and 41A to carry out the City’s original intent in combating
secondary effects associated with [SOBs]”. Id. (emphasis added).
“[T]he evidence does not connect the wearing of bikini tops to the
reduction of secondary effects”, id.; but, in the light of the data
considered by the City and other steps taken by it prior to
21
enacting the Ordinance, it was not necessary to make that
connection. Instead, it was reasonable for the City to conclude
that establishments featuring performers in attire more revealing
than bikini tops pose the same types of problems associated with
other SOBs.
C.
Plaintiffs next contend that the amended definition of SAAs is
overbroad because it will operate to classify a number of
“mainstream” businesses (movie theaters, video stores, and live
theaters) as SOBs (adult motion picture theaters, adult video
stores, and adult theaters). The City, however, recently amended
Chapter 41A-2 to remove adult theaters (theaters, auditoriums,
concert halls, etc., featuring live entertainment) from the
definition of SOBs. Dallas, Tex., Ordinance 24699 (22 Aug. 2001).
As a result, we limit our overbreadth inquiry to whether the SAAs
amended definition operates to classify “mainstream” movie theaters
and video stores as “adult” motion picture theaters and video
stores.
Facial overbreadth claims, being constitutional challenges,
are reviewed de novo. E.g., United States v. Stansell, 847 F.2d
609, 612 (9th Cir. 1988). “[F]acial overbreadth adjudication is an
exception to ... traditional rules of practice”. Broadrick v.
Oklahoma, 413 U.S. 601, 615 (1973). It should be employed
“sparingly, and only as a last resort”. Id. at 613. “[W]here
22
conduct and not merely speech is involved, ... the overbreadth of
a statute must not only be real, but substantial as well, judged in
relation to the statute’s plainly legitimate sweep”. Id. at 615.
The Ordinance is not facially overbroad.
With respect to movie theaters, Chapter 41A defines an adult
motion picture theater as
a commercial establishment where, for any form
of consideration, films, motion pictures,
video cassettes, slides, or similar
photographic reproductions are regularly shown
that are characterized by the depiction or
description of ... “[SAAs].”
DALLAS, TEX., CODE § 41A-2(6) (emphasis added). “Characterize” means
“to describe the essential character or quality of”. WEBSTER’S THIRD
NEW INTERNATIONAL DICTIONARY 376 (1986) (emphasis added) (hereinafter
WEBSTER’S). The chance that “mainstream” movie theaters will show
films with depictions of SAAs as their essential quality, and will
do so regularly, is highly improbable, as is the chance that they
will be classified as “adult” motion picture theaters (and thus
SOBs).
With respect to video stores, an adult video store is defined
as
a commercial establishment that as one of its
principal business purposes offers for sale or
rental for any form of consideration any one
or more of the following ... films, motion
pictures, video cassettes or video
reproductions, slides, or other visual
23
representations that depict or describe ...
“[SAAs]”.
DALLAS, TEX., CODE § 41A-2(3) (emphasis added). “Principal” is
defined as “most important, consequential, or influential:
relegating comparable matters [or] items ... to secondary rank”.
WEBSTER’S 1802. The likelihood of a “mainstream” video store’s
falling within the definition of an “adult” video store, and thus
of a SOB, is, as with movie theaters, highly improbable.
At any rate, if there is any real overbreadth in Chapter 41A,
it is certainly not “substantial [when] judged in relation to [its]
plainly legitimate sweep”. Broadrick, 413 U.S. at 615. This
understanding of the plain language of Chapter 41A-2, as amended,
is confirmed by the limiting construction by the City Attorney
post-enactment of the Ordinance and filing of this action. That
limiting construction provides that businesses “which feature adult
magazines, NC-17 or R-rated video tapes, and NC-17 or R-rated
motion pictures”, shall not be classified as SOBs by virtue of
their featuring such products. Memorandum from City Attorney to
Chief of Police 2-3 (5 June 1998). The City’s Police Chief
testified that his department relies on the limiting construction,
and the City has an established history of not classifying
mainstream businesses as SOBs.
“Administrative interpretation and implementation of a
regulation are, of course, highly relevant to our analysis, for
‘[i]n evaluating a facial challenge to a state law, a federal court
24
must ... consider any limiting construction that a state court or
enforcement agency has proffered.’” Ward v. Rock Against Racism,
491 U.S. 781, 795-96 (1989) (quoting Village of Hoffman Estates v.
The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494, n.5
(1982)). The district court characterized the limiting
construction as “preclud[ing] the classification of mainstream
businesses as [SOBs] even if such businesses feature an article or
activity that display[s] a [SAA]”. Baby Dolls, 114 F. Supp. 2d at
543-44.
Plaintiffs maintain that City of Lakewood v. Plain Dealer
Publishing Co., 486 U.S. 750 (1988), requires that “the limits the
city claims are in its law be made explicit by textual
incorporation, binding judicial or administrative construction, or
well-established practice”. Id. at 770 (emphasis added). That
case concerned a city ordinance vesting the mayor with unfettered
discretion to grant or deny applications from publishers for
permits to place newsracks on public property. The Court noted
that, in the area of free expression, a licensing scheme placing
unbridled discretion with a public official amounts to a prior
restraint, id. at 757, and held: “[T]he doctrine forbidding
unbridled discretion ... requires that the limits that the city
claims are implicit in its law be made explicit”, id. at 770
(emphasis added).
25
The Ordinance does not vest unbridled discretion in the City
or in any City official. It is not a prior restraint. As the
Court noted in Plain Dealer Publishing, it would “presume any
narrowing construction or practice to which the law is ‘fairly
susceptible’”. Id. at 770 n.11; see also Broadrick, 413 U.S. at
613 (“Facial overbreadth has not been invoked when a limiting
construction has been or could be placed on the challenged
statute.” (Emphasis added.)).
D.
Plaintiffs next contend the district court erred in holding
that, as applied, the following “no touch” provision is not an
unconstitutional, content-based restriction on speech. The
provision provides:
(a) An employee of an adult cabaret,
while exposing any [SAAs], commits an offense
if the employee touches a customer or the
clothing of a customer.
(b) A customer at an adult cabaret
commits an offense if he touches an employee
who is exposing any [SAAs] or touches the
clothing of the employee.
DALLAS, TEX., CODE § 41A-18.1 (emphasis added). Again, free speech
claims present a mixed question of law and fact, reviewed de novo.
26
E.g., Int’l Soc’y for Krishna Consciousness, 876 F.2d at 496.
As the district court noted, see Baby Dolls, 114 F. Supp. 2d
at 549, our court held in Hang On, Inc. v. City of Arlington, 65
F.3d 1248, 1253 (5th Cir. 1995) (first emphasis added):
[I]ntentional contact between a nude dancer
and a ... patron is conduct beyond the
expressive scope of the dancing itself. The
conduct at that point has overwhelmed any
expressive strains it may contain. That the
physical contact occurs while in the course of
protected activity does not bring it within
the scope of the First Amendment....
Similarly, patrons have no First
Amendment right to touch a nude dancer.
Hang On concerned a facial challenge to a provision almost
identical to the one at issue here. See id. at 1251.
Plaintiffs point to the fact that the SOB in Hang On did not
offer evidence of the expressive nature of touch in the course of
a “table” or “lap dance” (“which involves contact between the
dancer, while exposing [SAAs], and the customer”, Baby Dolls, 114
F. Supp. 2d at 541). Plaintiffs, on the other hand, did provide
the following testimony by one of their witnesses (a cultural
anthropologist) that innocuous touch between a dancer and patron
communicates a distinct message: “concern, affection, caring and
... eliminat[ion of] the sense of distance and coldness[;] the
message that the dancers really want to get across ... is the man
is king for the moment, as it were”. They contend: “Touch is an
essential element of ‘private dance’ expression”.
27
Hang On did not hold that such innocuous touch may contain
unique, expressive elements. Instead, as emphasized in the abovequoted passage, it held: “The conduct at that point [intentional
contact] has overwhelmed any expressive strains it may contain”.
Id. at 1253 (emphasis added). Restated, that holding did not turn
on evidence vel non presented by an SOB. It controls here.
E.
Finally, Plaintiff Baby Dolls appeals the denial of its SOB
permit (and, previously, one for Class D) because its proposed
location was within 1000 feet of a freeway, which is zoned a
residential district. The district court noted: a zoning
regulation is ordinarily constitutional so long as there is “any
possible rational basis” for it, SDJ, Inc., 837 F.2d at 1273
(quoting Shelton v. City of College Station, 780 F.2d 475, 479 (5th
Cir. 1986) (en banc)); the zoning of the freeway as a residential
district was consistent with the City’s Development Code and
historical zoning practices; and, most importantly, the zoning
classification “predates the existence of [SOBs] and was not
motivated to restrict any form of expression”. Baby Dolls, 114 F.
Supp. 2d at 543 (emphasis added). Accordingly, and citing
Employment Division, Department of Human Resources of Oregon v.
Smith, 494 U.S. 872, 882 (1990), the district court held: “[T]he
classification is a content-neutral, generally applicable law that
does not violate the First Amendment even if it incidentally
28
burdens [Baby Dolls’] protected expression”. Baby Dolls, 114 F.
Supp. 2d at 543.
Baby Dolls maintains the district court “misconstrued the
First Amendment claim as being a challenge to the City’s policy of
zoning to the middle of the street”. “What is properly to be
evaluated”, according to Baby Dolls, “is the application of [the]
one thousand (1000) foot distance restriction from residentially
zoned property when that property is a freeway and there is no
likelihood of residential use”. In that light, Baby Dolls urges us
to apply the four-part test for incidental limitations on
expressive conduct set out in United States v. O’Brien, 391 U.S.
367 (1968).
Even if we accept Baby Dolls’ framing of the appropriate
inquiry and review its claim de novo, its contention fails.
“Regulations that burden speech incidentally or control the time,
place, and manner of expression must be evaluated in terms of their
general effect.” United States v. Albertini, 472 U.S. 675, 688-89
(1985) (emphasis added; citation omitted). “The First Amendment
does not bar application of a neutral regulation that incidentally
burdens speech merely because a party contends that allowing an
exception in the particular case will not threaten important
government interests.” Id. at 688 (emphasis added; citing Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 296-297 (1984)).
Outcome: For the foregoing reasons, the judgment is AFFIRMED
Plaintiff's Experts:
Defendant's Experts:
Comments: