Entertainment Productions, Inc. v. Shelby County

721 F.3d 729, 2013 WL 3388295, 2013 U.S. App. LEXIS 13801
CourtCourt of Appeals for the Sixth Circuit
DecidedJuly 9, 2013
Docket11-6396
StatusPublished
Cited by18 cases

This text of 721 F.3d 729 (Entertainment Productions, Inc. v. Shelby County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Entertainment Productions, Inc. v. Shelby County, 721 F.3d 729, 2013 WL 3388295, 2013 U.S. App. LEXIS 13801 (6th Cir. 2013).

Opinions

BOGGS, J., delivered the opinion of the court, in which SUTTON, J., joined, and MOORE, J., joined in the result. MOORE, J. (pp. 744-46), delivered a separate opinion concurring in the judgment.

OPINION

BOGGS, Circuit Judge.

In this second chapter of the litigation over Shelby County Ordinance 344, Entertainment Productions, Inc., et al, seek to resuscitate their case against Shelby County and the State of Tennessee after a final judgment against them in the district court below. The appellants, a group of business entities that collectively own a substantial fraction of the adult nightclubs in Memphis, seek to enjoin and invalidate the Tennessee Adult-Oriented Establishment Registration Act of 1998, as locally enforced by Ordinance 344. They assert that the Act violates the First Amendment under a variety of theories. We disagree. For the reasons set out below, we affirm the district court.

I

We have chronicled the facts of this case in detail elsewhere. Entm’t Prods., Inc. v. Shelby Cnty. (Entm’t Prods. I), 588 F.3d 372, 376-77 (6th Cir.2009). The Act at issue is a county-option state law, enacted to address the deleterious secondary effects associated with adult-oriented businesses, including crime, the spread of venereal disease, decreased property values, and other public-welfare and safety issues. The Act applies to all businesses falling within the statutory definition of “adult-oriented establishment.” These establishments are regulated in two principal ways. First, all businesses subject to the Act, as well as their employees, must obtain a license. Second, the Act regulates the manner in which entertainment may be provided by these establishments in four major ways: (1) it prohibits nudity; (2) it prohibits certain sexual activities, touching [733]*733of certain anatomical areas, and all physical contact during performances; (3) it prohibits the sale or consumption of alcohol on the premises; and (4) it requires that all performances take place on a stage at least 18 inches above floor level and that all performers stay at least six feet away from customers and other performers.

Shelby County adopted the Act in September 2007. The appellants filed suit against the county in January 2008 in the United States District Court for the Western District of Tennessee. Claiming that the Act violated the First Amendment, they sought declaratory relief and preliminary and permanent injunctions. The Tennessee Attorney General moved to intervene, which the district court permitted in March 2008. The court subsequently denied the appellants’ request for a preliminary injunction the following month. We affirmed this decision. Entm’t Prods. I, 588 F.3d at 395.

Proceeding on remand, the appellants based their First Amendment argument on three different theories: (1) facial invalidity under intermediate scrutiny, (2) over-breadth, and (3) vagueness. The district court granted summary judgment for the appellees as to all claims except the claim of facial invalidity attacking the reasonableness of the Ordinance’s coverage of establishments featuring “briefly attired” dancers. After a bench trial, the district court upheld the regulation as to this final challenge.

II

We review the district court’s grant of summary judgment de novo. Trs. of the Mich. Laborers’ Health Care Fund v. Gibbons, 209 F.3d 587, 590 (6th Cir.2000). The decision below may be affirmed only if the pleadings, affidavits, and other submissions show “that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). In determining whether a genuine issue of material fact exists, we draw all reasonable inferences in favor of the nonmoving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

We also review de novo the sole claim that proceeded to trial, as it challenges the constitutionality of a state statute. Associated Gen. Contractors of Ohio, Inc. v. Drabik, 214 F.3d 730, 734 (6th Cir.2000).

Ill

The appellants’ first argument does not focus on any single provision of the Act, but rather attacks the statute as a whole. The appellants claim that the Act fails intermediate scrutiny because the data used to justify the regulations are “shoddy.” They criticize the methodology employed by the myriad studies cited by the state,1 and offer their own statistical data showing no correlation between the existence of adult-oriented businesses and a number of the secondary effects that the appellees seek to eliminate. The appellants further charge that, regardless of the reliability of the data used, the Act impermis-sibly regulates the secondary effects of adult-oriented speech by eliminating the speech itself. Specifically, they claim that the regulations reduce the accessibility of erotic entertainment to a point that the nightclubs would rather leave the market than be regulated.

A

The Act regulates the exhibition of erotic dance, a form of symbolic speech or [734]*734expressive conduct. Richland Bookmart, Inc. v. Knox Cnty., Tenn. (Richland Bookmart II), 555 F.3d 512, 520 (6th Cir.2009). Though protected by the First Amendment, “ ‘nude dancing of the type at issue here is expressive conduct,’ which falls ‘within the outer ambit of the First Amendment’s protection.’ ” Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cnty., 274 F.3d 377, 391 (6th Cir.2001) (quoting City of Erie v. Pap’s A.M., 529 U.S. 277, 289, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (plurality opinion)). Such speech receives protection, “ ‘of a wholly different, and lesser magnitude.’ ” Richland Bookmart, Inc. v. Nichols [Richland Bookmart I ], 137 F.3d 435, 439 (6th Cir.1998) (quoting Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976)).

We assess the constitutionally of regulations that purport to ameliorate the deleterious secondary effects of sexually oriented establishments under the intermediate-scrutiny standard announced in City of Renton v. Playtime Theatres, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Richland Bookmart II, 555 F.3d at 523-24. According to Renton, content-neutral regulations of the time, place, or manner of protected expression are valid “so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.” Renton, 475 U.S. at 47, 106 S.Ct. 925.

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721 F.3d 729, 2013 WL 3388295, 2013 U.S. App. LEXIS 13801, Counsel Stack Legal Research, https://law.counselstack.com/opinion/entertainment-productions-inc-v-shelby-county-ca6-2013.