IDK, Inc. v. County of Clark

836 F.2d 1185

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 8, 1988
• Docket: No. 85-1877
• Status: Published

Opinions

BOOCHEVER, Circuit Judge:

IDK, Inc., and other escort services located in the County of Clark appeal the district court’s entry of summary judgment that the county’s regulation concerning licensing and control of escort services and their employees is constitutional on its face. They contend the regulation violates the first and fourteenth amendments to the Constitution and seek a declaration that the regulation is unconstitutional, a permanent injunction against its enforcement, compensatory and punitive damages, and attorneys’ fees. We affirm. The regulation is facially constitutional because it does not reach a substantial amount of constitutionally protected activity and is not vague in all possible applications.

FACTS

Escort services provide their clientele with companions for a fee. The county has tried several times to control their operation. It contends that most if not all escort services are little more than “modified brothels.” In a previous attempt, the county prohibited working as a paid social companion or escort or operating an escort bureau as a business. The Supreme Court of Nevada held that the definitions of “social companion” and “escort” were unconstitutionally vague. Eaves v. Board of Clark County Comm’rs, 96 Nev. 921, 620 P.2d 1248 (1980). The definitions of these terms did not provide fair notice of the activities prohibited by the statute: social secretaries, babysitters, and companions for the aged and infirm could only guess whether they were guilty of impermissible conduct. Id. at 924, 620 P.2d at 1250.

The county then enacted the regulation at issue here and has since amended it twice. On appeal, we review the regulation in its present form. Bradley v. School Bd., 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974); Thorpe v. Housing Auth., 393 U.S. 268, 281-82, 89 S.Ct. 518, 526, 21 L.Ed.2d 474 (1969). Subsections 40 and 50 of Chapter 8.32 in Title 8 of the Clark County Code (CCC) make it unlawful to operate an escort service or work as an escort without a license from the county. The regulation defines “escort” and “escort bureau” and distinguishes between “service oriented” and “sexually oriented” escorts and escort bureaus. CCC § 8.32.060(AHB).¹ Sexually oriented escort bureaus may not receive licenses and escort bureaus that operate in a sexually oriented manner may have their licenses revoked. CCC §§ 8.32.080(J), 8.32.140(d). Advertising that suggests escorts will provide “sexual stimulation” or “sexual gratification” is prohibited, CCC § 8.32.120; those terms are defined elsewhere in the regulation. CCC § 8.32.060(QMR).² Applicants must meet detailed criteria and comply with strict reporting requirements to qualify for a license. CCC § 38.32.080(B)-(F), (I)-(J). The plaintiffs were granted licenses under the first version of the challenged regulation.

In a previous action involving different plaintiffs, the Supreme Court of Nevada found that the regulation was not unconstitutionally overbroad or vague and refused to grant a preliminary injunction against its enforcement. Republic Entertainment, Inc. v. Clark County Liquor & Gambling Licensing Bd., 99 Nev. 811, 672 P.2d 634 (1983). The district court reached the same conclusion in this case and denied IDK’s request for a preliminary injunction, IDK Inc. v. County of Clark, 599 F.Supp. 1402 (D.Nev.1984), and later granted the county’s motion for summary judgment denying a permanent injunction.

ANALYSIS

I. Standard of Review

We review the grant or denial of a motion for summary judgment de novo, applying the same standard applied by a trial court under Rule 56(c) of the Federal Rules of Civil Procedure: is there a genuine issue as to any material fact and is the moving party entitled to a judgment as a matter of law? Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We view the evidence from the perspective most favorable to the party opposing the motion. Ashton v. Cory, 780 F.2d 816, 818 (9th Cir.1986).

Although IDK forcefully argues that genuine issues of material fact exist, it does not tell us what they are. Our examination of the record reveals none. Summary judgment in cases involving constitutional issues is often undesirable because a court benefits from a well-developed record when deciding complex and important questions. See Askew v. Hargrave, 401 U.S. 476, 91 S.Ct. 856, 28 L.Ed.2d 196 (1971). Facial challenges to statutes on first amendment grounds, however, may involve questions on which summary judgment is often appropriate. See, e.g., Heffron v. International Soc’y for Krishna Consciousness, 452 U.S. 640,101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). While summary judgment may be a suitable procedure for resolving facial challenges, such a questioning of a “legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, — U.S. -, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).

The challenge is to the statute itself, not its application to a specific event:

Procedures for testing the constitutionality of a statute “on its face” in the manner apparently contemplated by Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965) ], and for then enjoining all action to enforce the statute until the State can obtain court approval for a modified version, are fundamentally at odds with the function of the federal courts in our constitutional plan. The power and duty of the judiciary to declare laws unconstitutional is in the final analysis derived from its responsibility for resolving concrete disputes brought before the courts for deci-sion_ [T]he task of analyzing a proposed statute, pinpointing its deficiencies, and requiring correction of these deficiencies before the statute is put into effect, is rarely if ever an appropriate task for the judiciary. The combination of the relative remoteness of the controversy, the impact on the legislative process of the relief sought, and above all the speculative and amorphous nature of the required line-by-line analysis of detailed statutes ... ordinarily results in a kind of case that is wholly unsatisfactory for deciding constitutional questions, whichever way they might be decided.

Younger v. Harris, 401 U.S. 37, 52-53, 91 S.Ct. 746, 754-55, 27 L.Ed.2d 669 (1971) (citations omitted). These lines of Justice Black not only illustrate the legalistic nature of a facial challenge to a statute but also suggest that, even with a full trial of such cases, courts should rarely grant relief.

There is an extensive record in this dispute. We have the benefit of two decisions from the Nevada Supreme Court and the district court’s detailed ruling on the preliminary injunction request. The district court held oral argument before denying that request and before granting the motion for summary judgment. The parties briefed the issues extensively both here and below. The county submitted numerous exhibits to the district court which gave the history of the regulation and the county’s reasons for enacting it.

Given the absence of a genuine issue of material fact and the presence of a well-developed record, we need review only the district court’s application of the law.

II. Facial Challenges under the First Amendment

In analyzing the constitutional issues raised by this appeal, it is important to recognize the nature of the challenge to the county’s regulations. IDK and the other escort services who brought this action were granted licenses by the county. No party has appealed from the denial of a license nor are we confronted with an appeal from a revocation of the licenses. The case was brought as a facial challenge only, and it is in that context that we undertake our review.

Courts permit facial challenges to statutes under the first amendment because its

freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity.

NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963) (citations omitted). Because of the chilling effect a statute might have on the freedoms of expression and association, an expedited determination of its constitutionality is preferable. “If the rule were otherwise, the contours of regulation would have to be hammered out case by case — and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation.” Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S.Ct. 1116, 1121, 14 L.Ed.2d 22 (1965). The very existence of the regulation threatens the less hardy, inhibiting their discussions and associations. Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 741, 84 L.Ed. 1093 (1940). Justice Marshall likened the threat to a sword of Damocles and noted that the value of such a sword “is that it hangs — not that it drops.” Arnett v. Kennedy, 416 U.S. 134, 231, 94 S.Ct. 1633, 1682, 40 L.Ed. 2d 15 (1974) (Marshall, J., dissenting).

Courts should not, however, countenance facial challenges in the ordinary course: “it can seldom be appropriate ... to exercise any such power of prior approval or veto over the legislative process.” Younger, 401 U.S. at 53, 91 S.Ct. at 755. Facial invalidation is often used, however, to protect political expression and association. See, e.g., Federal Election Comm’n v. National Conservative Political Action Comm., 470 U.S. 480, 490-96, 105 S.Ct. 1459, 1465-68, 84 L.Ed.2d 455 (1985); Anderson v. Celebrezze, 460 U.S. 780, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983); Consolidated Edison Co. v. Public Service Comm’n, 447 U.S. 530, 100 S.Ct. 2326, 65 L.Ed.2d 319 (1980); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 100 S.Ct. 826, 63 L.Ed. 2d 73 (1980); Kusper v. Pontikes, 414 U.S. 51, 94 S.Ct. 303, 38 L.Ed.2d 260 (1973); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Dombroski, 380 U.S. 479, 85 S.Ct. 1116; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960); Thornhill, 310 U.S. 88, 60 S.Ct. 736.

Courts also use facial challenges to protect religious expression and association or to strike down laws that violate the first amendment’s establishment clause. See, e.g., Edwards v. Aguillard, — U.S. -, 107 S.Ct. 2573, 96 L.Ed.2d 510 (1987); Board of Airport Comm’rs v. Jews for Jesus, Inc., — U.S. -, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982); McDaniel v. Paty, 435 U.S. 618, 98 S.Ct. 1322, 55 L.Ed.2d 593 (1978); Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct. 1680, 6 L.Ed.2d 982 (1961); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943). If the courts of a state could adopt a construction of its statute that eliminates the constitutional defects, federal courts should defer. Time, Inc. v. Hill, 385 U.S. 374, 397, 87 S.Ct. 534, 546, 17 L.Ed.2d 456 (1967); Harrison v. NAACP, 360 U.S. 167, 176-77, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152 (1959). Partial invalidation of a statute is preferred to its wholesale invalidation. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 502, 504, 105 S.Ct. 2794, 2801, 2802, 86 L.Ed.2d 394 (1985); Buckley v. Valeo, 424 U.S. 1, 108, 96 S.Ct. 612, 677, 46 L.Ed.2d 659 (1976). “It remains a ‘matter of no little difficulty’ to determine when a law may properly be held void on its face and when ‘such summary action’ is inappropriate.” Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917, 37 L.Ed.2d 830 (1973) (quoting Coates v. City of Cincinnati, 402 U.S. 611, 617, 91 S.Ct. 1686, 1690, 29 L.Ed.2d 214 (1971) (Black, J., concurring in part and dissenting in part)).

A facial attack against a law’s constitutionality may proceed along four axes: (1) the law may impermissibly burden the plaintiff’s rights, (2) it may impermissibly burden the rights of third parties, (3) it may fail to provide adequate notice of what conduct is prohibited, or (4) it may lack sufficient guidelines to prevent arbitrary and discriminatory enforcement. See Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495-98, 102 S.Ct. 1186, 1191-93, 71 L.Ed.2d 362 (1982). The first two assail the law as a prior restraint or an invalid time, place, or manner restriction. See Shuttlesworth, 394 U.S. 147, 151-55, 89 S.Ct. 935, 938-41, 22 L.Ed.2d 162; City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-53, 106 S.Ct. 925, 928-32, 89 L.Ed.2d 29 (1986). The second additionally is an attack for over-breadth, in which the plaintiff asserts the rights of third parties. See Broadrick v. Oklahoma, 413 U.S. at 611-14, 93 S.Ct. at 2915-17. The third and fourth are challenges for vagueness. Grayned v. City of Rockford, 408 U.S. 104, 108-09, 92 S.Ct. 2294, 2298-99, 33 L.Ed.2d 222 (1972). The escort services assert all four as grounds for invalidating the county’s regulation. Our first task is to determine whether the regulation impermissibly burdens the plaintiffs’ or third parties’ rights. Stated another way, does the regulation reach “a substantial amount of constitutionally protected conduct”? Flipside, 455 U.S. at 494, 102 S.Ct. at 1191.

III. Dating and the Freedom of Association

The conduct for which the escort services claim constitutional protection is dating. The county submitted much evidence that escorts were nothing more than call girls and that the escort bureaus operated as panderers. 599 F.Supp. at 1406-08 & n. 7. Although given ample opportunity by the district court to describe the activities that their employees and clients pursue, the escort services chose to rest their facial challenge on a broad claim of a constitutional right to date, which they also refer to as a right of “interpersonal association,” “silent association,” and “social association.”

The Constitution • protects associations because of their intrinsic value as well as their value as instrumentalities for achieving certain ends:

Our decisions have referred to constitutionally protected “freedom of association” in two distinct senses. In one line of decisions, the Court has concluded that choices to enter into and maintain certain intimate human relationships must be secured against undue intrusion by the State because of the role of such relationships in safeguarding the individual freedom that is central to our constitutional scheme. In this respect, freedom of association receives protection as a fundamental element of personal liberty. In another set of decisions, the Court has recognized a right to associate for the purpose of engaging in those activities protected by the First Amendment — speech, assembly, petition for the redress of grievances, and the exercise of religion. The Constitution guarantees freedom of association of this kind as an indispensable means of preserving other individual liberties.

The intrinsic and instrumental features of constitutionally protected association may, of course, coincide.

Roberts v. United States Jaycees, 468 U.S. 609, 617-18, 104 S.Ct. 3244, 3249-50, 82 L.Ed.2d 462 (1984); see Board of Directors of Rotary Int’l v. Rotary Club of Duarte, — U.S. -, 107 S.Ct. 1940, 95 L.Ed.2d 474 (1987). In protecting “certain kinds of highly personal relationships,” Roberts, 468 U.S. at 618, 104 S.Ct. at 3250, the Supreme Court has most often identified the source of the protection as the due process clause of the fourteenth amendment, not the first amendment’s freedom to assemble. See, e.g., Zablocki v. Redhail, 434 U.S. 374, 383-86, 98 S.Ct. 673, 679-81, 54 L.Ed.2d 618 (1978); Moore v. City of East Cleveland, 431 U.S. 494, 503-04, 97 S.Ct. 1932, 1937-38, 52 L.Ed.2d 531 (1977) (plurality opinion); Griswold v. Connecticut, 381 U.S. 479, 482-85, 85 S.Ct. 1678, 1680-82, 14 L.Ed.2d 510 (1965); see also Roberts, 468 U.S. at 619, 104 S.Ct. at 3250 (citing to other cases). The first amendment’s freedom of association protects groups whose activities are explicitly stated in the amendment: speaking, worshiping, and petitioning the government. Roberts, 468 U.S. at 622-23, 104 S.Ct. at 3252. The first amendment also gives us the freedom not to assemble with those whose goals we do not share. Chicago Teachers Union, Local No. 1 v. Hudson, 475 U.S. 292, 301, 106 S.Ct. 1066, 1073, 89 L.Ed.2d 232 (1986); Abood v. Detroit Bd. of Educ., 431 U.S. 209, 222, 97 S.Ct. 1782, 1792, 52 L.Ed.2d 261 (1977).

In Coates v. City of Cincinnati, the Supreme Court struck down an ordinance that made it a criminal offense for three or more persons to gather on a sidewalk and “ ‘conduct themselves in a manner annoying to persons passing by.’ ” 402 U.S. 611, 611, 91 S.Ct. 1686, 1686-87, 29 L.Ed.2d 214 (1971). The ordinance was invalid on its face because it infringed on “the right of people to gather in public places for social or political purposes.” Id. at 615, 91 S.Ct. at 1689 (emphasis added). Several lower courts have held that the first amendment protects private and social associations regardless of whether they have an overtly expressive purpose. See, e.g., Sawyer v. Sandstrom, 615 F.2d 311 (5th Cir.1980) (court declared an ordinance prohibiting loitering with persons known to be using or in possession of narcotics unconstitutional on its face); McKenna v. Peekskill Housing Auth., 497 F.Supp. 1217, 1221-22 (S.D.N.Y.1980) (first amendment protects private and social associations, even those without a “hortatory purpose”), modified, 647 F.2d 332 (2d Cir.1981). The escort services rely heavily on Wilson v. Taylor, 733 F.2d 1539 (11th Cir.1984), in which the Eleventh Circuit found that the first amendment protected a policeman’s right to date the daughter of a convicted felon and reputed mobster. Sawyer, McKenna, and Wilson were decided before Roberts, and one court has suggested that the right asserted by officer Wilson was the freedom of intimate association under the fourteenth amendment. Trujillo v. Board of County Comm’rs, 768 F.2d 1186, 1188-89 (10th Cir.1985). We agree. Although Wilson and his companion alleged that they discussed philosophical and social issues, the Eleventh Circuit analyzed the constitutional issue on the assumption that they were “simply dating.” 733 F.2d at 1543 & n. 2.³

Of course, a single association may have intimate and expressive features and therefore be entitled to claim the protection of both the first and fourteenth amendments. Roberts, 468 U.S. at 618, 104 S.Ct. at 3249. If the activities of escorts and their clients qualify as intimate associations, the escort services may attack the regulation as intruding on the right of privacy. To the extent that the escort services or their employees are involved in expressive association, they may challenge the county’s regulation as an impermissible burden on their first amendment rights, as overly broad, and as excessively vague.⁴

A. Intimate Association

The relationships protected by the fourteenth amendment “are those that attend the creation and sustenance of a family” and similar “highly personal relationships.” Roberts, 468 U.S. at 618-19, 104 S.Ct. at 3250. The individuals are deeply attached and committed to each other as a result of their having shared each other’s thoughts, beliefs, and experiences. By the very nature of such relationships, one is involved in a relatively few intimate associations during his or her lifetime. Id. at 620, 104 S.Ct. at 3250. The factors relevant in determining whether a particular association can claim the protection of the due process clause are the group’s size, its congeniality, its duration, the purposes for which it was formed, and the selectivity in choosing participants.

As a couple, an escort and client are the smallest possible association. In other regards, however, the relationship between escort and client possesses few, if any, of the aspects of an intimate association. It lasts for a short period and only as long as the client is willing to pay the fee. Although a client may have some choice as to the person he or she wishes as a companion, the escort must accompany whomever the employer selects. Escorts and their clients do not claim to be involved in procreation, raising and educating children, cohabitation with relatives, or the other activities of family life. An escort may be involved with a large number of clients. While we may assume that the relationship between them is cordial and that they share conversation, companionship, and the other activities of leisure, we do not believe that a day, an evening, or even a weekend is sufficient time to develop deep attachments or commitments. In fact, the relationship between a client and his or her paid companion may well be the antithesis of the highly personal bonds protected by the fourteenth amendment. These are not the ties that “have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs.” 468 U.S. at 618-19, 104 S.Ct. at 3250.

We conclude that the county’s regulation does not reach such a substantial amount of conduct protected by the freedom of intimate association to permit a facial challenge, and to that extent the escort services’ reliance on Wilson is misplaced.⁵

B. Expressive Association

The freedom of expressive association permits groups to engage in the same activities that individuals may engage in under the first amendment.

An individual’s freedom to speak, to worship, and to petition the government for the redress of grievances could not be vigorously protected from interference by the State unless a correlative freedom to engage in group effort toward those ends were not also guaranteed. According protection to collective effort on behalf of shared goals is especially important in preserving political and cultural diversity and in shielding dissident expression from suppression by the majority. Consequently, we have long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others in pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.

Roberts, 468 U.S. at 622, 104 S.Ct. at 3252 (citations omitted). Dating and other social activities are worthy of some protection under the first amendment even though these activities may lack an overt political, religious, or educational purpose. We do not limit protection to words that are “strident, contentious, or divisive,” but extend it to “quiet persuasion, inculcation of traditional values, instruction of the young, and community service.” Id. at 636, 104 SCt. at 3259 (O’Connor, J., concurring in part and concurring in the judgment). “Our Constitution is designed to maximize individual freedoms within a framework of ordered liberty.” Kolender v. Lawson, 461 U.S. 352, 357,103 S.Ct. 1855, 1858, 75 L.Ed. 2d 903 (1983). We conclude that dating and other social associations to the extent that they are expressive are not excluded from the safeguards of the first amendment.

Our analysis cannot stop here, for we must decide the extent to which the activities of the escort services are entitled to these protections. While the first amendment fully protects expression about philosophical, social, artistic, economic, literary, ethical, and other topics, Abood, 431 U.S. at 231, 97 S.Ct. at 1797, it does not protect every communication or every association that touches these topics. The escort services contend that their escorts and clientele associate for social, economic, and cultural ends, but have never disclosed the type of expression that they fear may be chilled. Legislatures, in regulating commercial activity, have severely limited the freedoms of speech and association:

Moreover, “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 [69 S.Ct. 684, 691, 93 L.Ed. 834] (1949). Numerous examples could be cited of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, SEC v. Texas Gulf Sulphur Co., 401 F.2d 833 (CA2 1968), cert. denied, 394 U.S. 976 [89 S.Ct. 1454, 22 L.Ed.2d 756] (1969), corporate proxy statements, Mills v. Electric Auto-Lite Co., 396 U.S. 375 [90 S.Ct. 616, 24 L.Ed.2d 593] (1970), the exchange of price and production information among competitors, American Column & Lumber Co. v. United States, 257 U.S. 377 [42 S.Ct. 114, 66 L.Ed. 284] (1921), and employers’ threats of retaliation for the labor activities of employees, NLRB v. Gissel Packing Co., 395 U.S. 575, 618 [89 S.Ct. 1918, 1942, 23 L.Ed.2d 547] (1969). See Pans Adult Theatre I v. Slaton, 413 U.S. 49, 61-62 [93 S.Ct. 2628, 2637, 37 L.Ed.2d 446] (1973). Each of these examples illustrates that the State does not lose its power to regulate commercial activity deemed harmful to the public whenever speech is a component of that activity.

Ohralik v. Ohio State Bar Ass ’n, 436 U.S. 447, 456-57, 98 S.Ct. 1912, 1918-19, 56 L.Ed.2d 444 (1978). The county argues that the escort services are not involved in protected expression and may be regulated to the same extent as any purely commercial activity. The escort services vigorously contest the assertion that their first amendment rights are less worthy of protection because their activities are commercial. They compare themselves with publishers and purveyors of books and newspapers, concert promoters, cable television franchisers, and owners of topless bars. Those organizations’ claim on the first amendment is not diminished by their sale of expression. See First Nat’l Bank of Boston v. Bellotti, 435 U.S. 765, 787, 98 S.Ct. 1407, 1421, 55 L.Ed.2d 707 (1978); Pittsburgh Press Co. v. Pittsburgh Comm’n on Human Relations, 413 U.S. 376, 386, 93 S.Ct. 2553, 2559, 37 L.Ed.2d 669 (1973); Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 64 & n. 6, 83 S.Ct. 631, 636 & n. 6, 9 L.Ed.2d 584 (1963); Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058-60 (9th Cir.1986); Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396, 1410 n. 10 (9th Cir.1985); Gannett Satellite Information Network, Inc. v. Metropolitan Transp. Auth., 745 F.2d 767, 772 (2d Cir.1984); Cinevision Corp. v. City of Burbank, 745 F.2d 560, 567 (9th Cir.1984), cert. denied, 471 U.S. 1054, 105 S.Ct. 2115, 85 L.Ed.2d 480 (1985). The escort services urge that they are entitled to the same protection in the sale of companionship.

We readily concede that distinguishing between associations that are primarily expressive and those that are primarily commercial will not always be easy. Justice O’Connor, writing separately in Roberts, suggested that the courts can make this distinction by examining an association’s activities and purposes:

Many associations cannot readily be described as purely expressive or purely commercial. No association is likely ever to be exclusively engaged in expressive activities, if only because it will collect dues from its members or purchase printing materials or rent lecture halls or serve coffee and cakes at its meetings. And innumerable commercial associations also engage in some incidental protected speech or advocacy. The standard for deciding just how much of an association’s involvement in commercial activity is enough to suspend the association’s First Amendment right to control its membership cannot, therefore, be articulated with simple precision....

In my view, an association should be characterized as commercial, and therefore subject to rationally related state regulation of its membership and other associational activities, when, and only when, the association’s activities are not predominantly of the type protected by the First Amendment.

Roberts, 468 U.S. at 635, 104 S.Ct. at 3259 (O’Connor, J., concurring in part and concurring in the judgment).

Under any test it is clear that the escort services are primarily commercial enterprises, and their activities are not predominantly of the type protected by the first amendment. Despite its superficial appeal, the escort services’ attempt to analogize themselves to newspaper publishers does not withstand scrutiny. First, both speech and the press are explicitly mentioned in the first amendment; escort services and dating are not. Second, books and newspapers are, without doubt, expression; dating is conduct that is protected to the extent that it involves expressive activities. See Roberts, 468 U.S. at 622, 104 S.Ct. at 3252; see also United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968) (“when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms”). A couple out on the town is not an overtly expressive association when compared to political parties, civil rights organizations, publishers, churches, lobbyists, labor unions, and other special interest groups.

Third, and most important, the escort services make no claim that expression is a significant or necessary component of their activities. The services’ advertisements included in the record do not tout their employees’ skills in conversation, advocacy, teaching, or community service, and thus we assume that clients select their companions on the basis of other criteria.⁶ Unlike publishers, concert promoters, and cable television franchisers, the escort services do not control the content of expression or ensure that any expression occurs. They exercise no editorial judgment over the messages their employees convey and do not insist that they convey any. See Preferred Communications, 754 F.2d at 1410 n. 10 (selection of which views to present is a component of expression protected by the first amendment). If a client does not care to engage in expressive activities while dating, we must assume that neither the escort services nor the escort compel the client to do so. The escort services simply do not care what the couples talk about or whether they talk at all. The escort services cannot claim that expression constitutes anything but an incidental aspect of their commercial activity.

IY. The Escort Services’ Facial Challenge

We conclude that the Constitution may afford some protection to dating and other social groups because of their value as intimate and expressive associations. The escort services, however, have little claim on the protections afforded intimate associations because the relationship between an escort and client possesses almost none of the constitutional aspects of intimate associations. They also lack a substantial claim to the protections given expressive associations because the escort services’ activities and purposes are primarily commercial rather than communicative. As the county’s regulation does not reach a substantial amount of constitutionally protected conduct, the escort services’ facial challenge alleging an impermissible burden on their rights cannot succeed.

A. Prior Restraint and Overbreadth

The requirement of obtaining a license does not operate as a prior restraint on expression. As the activities of the escort services and their employees do not implicate substantial first amendment rights, the county may exercise some discretion in granting licenses. If the county revokes or denies licenses for arbitrary or constitutionally suspect reasons, the aggrieved party may challenge the application of the regulation in that specific context.⁷ We note that the county granted these plaintiffs licenses and therefore they may lack standing to challenge the licensing requirements as it applies to them. In any event, the fact that they have licenses militates against facial invalidation of the regulation. The regulation’s time, place, and manner restrictions on the operation of escort services are valid.⁸

The plaintiffs’ attack for over-breadth also fails. The regulation’s bounds are sufficiently clear that there is no substantial instrusion on noncommercial social associations. Flipside, 455 U.S. at 494-96, 102 S.Ct. at 1191-92; Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917.⁹ To the extent that the escort services’ challenge for over-breadth asserts the rights of other business associations involved in significant amounts of expressive activities, it fails because such a challenge cannot be made in a commercial context. See Bates v. State Bar of Arizona, 433 U.S. 350, 380-81, 97 S.Ct. 2691, 2707-08, 53 L.Ed.2d 810 (1977). The justification for this limitation on attacks for overbreadth is not based on the assumption that all expression emanating from commercial associations is commercial speech: such an assumption is incorrect. See Virginia Pharmacy, 425 U.S. at 761-62, 96 S.Ct. at 1825-26. Instead, it is justified because commercial entities are less likely to require an outsider to champion their first amendment rights. Bates, 433 U.S. at 380-81, 97 S.Ct. at 2707-08; Virginia Pharmacy, 425 U.S. at 771-72 & n. 24, 96 S.Ct. at 1830-31 & n. 24. Accordingly, the escort services may not assert the rights of other commercial associations.¹⁰

B. Vagueness

Our conclusion that the escort services’ activities are not protected by the first amendment is not fatal to all claims that the county’s regulation is void for vagueness. See Flipside, 455 U.S. at 495 n. 7, 102 S.Ct. at 1191 n. 7. Regardless of whether a statute impinges on other constitutional rights, due process requires it to give adequate notice of what conduct is prohibited and sufficient guidelines to prevent arbitrary and discriminatory enforcement. See Grayned, 408 U.S. at 108-09, 92 S.Ct. at 2298-99. The absence of a significant first amendment interest is, however, fatal to a facial challenge of a business regulation for vagueness unless the regulation is vague in all possible applications. Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8; Flipside, 455 U.S. at 497, 102 S.Ct. at 1193. A statute that imposes criminal penalties must be more precise than one that regulates business behavior. Kolender, 461 U.S. at 358 n. 8, 103 S.Ct. at 1859 n. 8. The regulation’s only criminal penalty is for operation of an escort service without a license. Nev.Rev.Stat. § 244.345(7) (1985); see Republic Entertainment, 99 Nev. at 817, 672 P.2d at 638. All the plaintiffs applied for and received licenses: they cannot not now claim that the regulation is so vague that it provides inadequate notice to them of their need for licenses.

The regulation prohibits escort services from operating in a “sexually oriented” manner or advertising in a manner that suggests to a “reasonable, prudent person that sexual stimulation or sexual gratification” will be provided. CCC §§ 8.32.080(1), 8.32.120, 8.32.140. The escort services argue that the terms “sexually oriented,” “sexual stimulation,” and “sexual gratification” are so vague that the regulation invites arbitrary and discriminatory enforcement. These terms are narrowly defined in the regulation. See supra notes 1-2. The only possible exception is the inclusion of the phrase “to excite or arouse the prurient interest” in the definition of sexual stimulation. The Supreme Court made it clear in Spokane Arcades, 472 U.S. at 504-06, 105 S.Ct. at 2802-03, that use of such terms as “lust” or “prurient” does not justify facial invalidation of an entire statute: the terms can be defined so as to pass “constitutional muster” and courts should assume they will be so defined absent clear evidence to the contrary. Id. at 504-07 & n. 13, 105 S.Ct. at 2802-04 & n. 13; see Polykoff v. Collins, 816 F.2d 1326, 1334-37 (9th Cir.1987).

CONCLUSION

The county’s regulation governing the licensing and operation of escort services neither reaches a substantial amount of activity protected by the freedom of expressive association nor appears vague in all possible applications. Therefore, the escort service’s facial challenge fails. We emphasize that our holding does not mean that the regulation is incapable of unconstitutional application in particular situations and does not immunize the regulation from challenges to its application. Facial invalidation is “strong medicine” which should be used “sparingly and only as a last resort.” Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916. We conclude that this regulation does not reach a sufficient amount of the activities protected by the Constitution to justify a dose of that medicine.

AFFIRMED.

1 . (A) An "escort” is a person who is held out to the public to be available for hire and who for monetary consideration in the form of a fee, commission, salary, to consort with, or accompanies or who offers, for monetary consideration, to consort, or accompany, another or others to or about social affairs, entertainments or places of amusement or within any place of public resort or within any private quarters.

(1) A "service oriented escort" is an escort which:

(a) Operates from an open office; and

(b) Does not employ or use an escort runner; and

(c) Does not advertise that sexual conduct will be provided to the patron or work for an escort bureau which so advertises; and

(d) Does not offer or provide sexual conduct.

(2) A “sexually oriented escort" is an escort which:

(a) Employs as an employee, agent or independent contractor an escort bureau runner; or

(b) Works for, as an agent, employee, contractor, or is referred to a patron by a sexually oriented escort bureau; or

(c) Advertises, that sexual conduct will be provided, or works for, as an employee, agent or independent contractor or is referred to a patron by an escort bureau which so advertises; or

(d) Solicits, offers to provide or does provide acts of sexual conduct to an escort patron, or accepts an offer or solicitation to provide acts of sexual conduct for a fee in addition to the fee charged by the escort bureau; or

(e) Works as an escort without having a current work identification card issued for the referring escort bureau in his or her possession at all times while working as an escort; or

(f) Accepts a fee from a patron who has not first been delivered a contract.

(B) An "escort bureau” is a person, as defined herein, which for a fee, commission, profit, payment or other monetary consideration, furnishes, refers or offers to furnish or refer escorts, or provides or offers to introduce patrons to escorts.

(1) A "service oriented escort bureau” is an escort bureau which:

(a) Maintains an open office at an established place of business; and

(b) Employs or provides only escorts which possess work identification cards; and

(c) Does not use an escort bureau runner; and

(d)Does not advertise that sexual conduct will be provided to a patron.

(2) A "sexually oriented escort bureau” is an escort bureau which:

(a) Operates in any of the manners described in Section 8.32.010(C)(a), (b), (e), (k), (o); or

(b) Does not maintain an open office; or

(c) Employs as an employee, agent or independent contractor, uses an escort bureau runner; or

(d) Advertises, that sexual conduct will be provided, or that escorts which provide such sexual conduct will be provided, referred, or introduced to a patron; or

(e) Solicits, offers to provide or does provide acts of sexual conduct to an escort patron; or

(f) Employs, contracts with or provides or refers escorts who do not possess work identification cards as required herein and in Chapter 8.24 of the Clark County Code; or

(g) Does not deliver contracts to every patron or customer; or

(h) Employs, contracts with a sexually oriented escort or refers or provides to a patron, a sexually oriented escort.

CCC § 8.32.060(A)-(B).

2 . (Q) "Sexual stimulation” means to excite or arouse the prurient interest or to offer or solicit acts of sexual conduct as defined under "offer to provide acts of sexual conduct” in subsection (G) of this section.

(R) "Sexual gratification” means sexual conduct as defined in subsection (J) of this section.

CCC § 8.32.060(Q)-(R). The regulation defines "offer to provide acts of sexual conduct" in CCC § 8.32.060(G):

(G) An "offer to provide acts of sexual conduct" means to offer, propose or to solicit to provide sexual conduct to a patron. Such definition includes all conversations, advertisements and acts which would lead a reasonably prudent person to conclude that such acts were to be provided.

Subsection 8.32.060(J) defines "sexual conduct”:

(J) "Sexual conduct” means the engaging in or the commission of an act of sexual intercourse, oral-genital contact, or the touching of the sexual organs, pubic region, buttock or female breast of a person for the purpose of arousing or gratifying the sexual desire of another person.

3 . A district court, faced with almost identical facts, held that the police officer had no constitutional right under the first or fourteenth amendment to date someone against his department’s orders. Baron v. Meloni, 602 F.Supp. 614 (W.D.N.Y.1985), aff’d without opinion, 779 F.2d 36 (2d Cir.), cert. denied, 474 U.S. 1058, 106 S.Ct. 798, 88 L.Ed.2d 775 (1986).

4 . Without relying on the doctrine of over-breadth, the escort services may assert the first amendment rights of their employees and clients as well as their own. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 756-57, 96 S.Ct. 1817, 1822-23, 48 L.Ed.2d 346 (1976); see Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1059 (9th Cir.1986). A claim of overbreadth may give the plaintiffs standing to assert the rights of others with absolutely no connection to the escort services. Flipside, 455 U.S. at 495-96, 102 S.Ct. at 1191-92.

5 . The Wilson case was not a facial attack on an ordinance but a suit under 42 U.S.C. § 1983 alleging that the police department fired officer Wilson for exercising his right of association. 733 F.2d at 1540. We are uncertain whether one can facially challenge a statute on the grounds that it violates the right of intimate association. None of the decisions cited in Roberts as establishing this right, 468 U.S. at 619, 104 S.Ct. at 3250, involved such a challenge.

6 . In determining that the Jaycees and the Rota-rians engaged in significant amounts of expressive activities, the Supreme Court examined, inter alia, the publications of these organizations. See Roberts, 468 U.S. at 612-14,104 S.Ct. at 3246-48; Rotary Club, 107 S.Ct. at 1947. It is therefore appropriate for us to consider the advertisements and other publications of the escort services in determining whether they engage in protected expression. Our review of the advertisements of escort services included in the record indicates that clients select their escorts based on the escort’s appearance, nationality, expertise in domination, 24-hour availability, and willingness to meet the client at his or her door.

7 . In addition to requiring detailed disclosure of financing and organization, the regulation gives the licensing board substantial discretion to grant or deny licenses:

(I)The licensing board shall not grant the license unless it is satisfied that the applicant is suitable in all respects. The applicant must be:

(1) A person of good character, honesty and integrity;

(2) A person whose prior activities, criminal record, if any, reputation, habits and associations do not pose a threat to the public interest of the county or to the effective regulation and control of prostitution, or create or enhance the dangers of unsuitable, unfair or illegal practices, methods and activities in the conduct of an escort bureau or the carrying on of the business and financial arrangements incidental thereto; and

(3) In all other respects qualified to be licensed or found suitable consistently with the declared policy of this chapter.

(J) The license board has full power to deny any application:

(1) If the applicant has not satisfied the licensing board that the proposed financing of the entire operation is from a suitable source; any lender or other source of money or credit which the licensing board finds does not meet the standards set forth in subsection (I) of this section may be deemed unsuitable; or (2) If the license application is incomplete so as to not contain all information required by this chapter; or

(3) If all license and investigation fees are not paid; or

(4) If the applicant or any of its principals has been convicted of a crime listed in subsection (B)(2) of this section or has been enjoined in an adjudicated civil action from engaging in fraudulent advertising or sales or trade practices; or

(5) If the applicant, based upon his activities since the enactment of these regulations, has or has an associate who has operated a sexually oriented escort bureau; or

(6) If the applicant, based upon the content of his application, intends to operate an escort bureau in a sexually oriented manner; or

(7) If the applicant or partner, stockholder, officer, director or associate has had an escort license previously revoked or denied for any ground contained in this section or in Section 8.32.140; or

(8) If the applicant, its partners, officers or directors do not qualify for or have not obtained work identification cards as required in Section 8.32.070; or

(9) If the applicant's financial statement, business activities, background or associates disclose that unsuitable persons are or will be involved in the management or conduct of the day-to-day business affairs of the escort bureau; or

(10) If the applicant's financial statements, business activities, background or associates disclose that unlicensed or unsuitable persons have or will have an interest in the ownership of or have an equitable or beneficial right to the profits of the escort bureau; or

(11) For any cause deemed reasonable.

CCC § 8.32.080(I)-(J). These are also grounds for license revocation. CCC § 8.32.140. The Nevada legislature has declared that escort bureaus, like casinos, are "privileged occupations.” Nev.Rev.Stat. § 244.345 (1981); Nev.Rev.Stat. § 463.0129 1f2 (1983); CCC § 8.32.Q80. This circuit has found that wide discretion in the issuance of gaming licenses does not violate due process. Jacobsen v. Hannifin, 627 F.2d 177 (9th Cir.1980). The county implies that because an escort bureau license is a privilege under state law, it may deny licenses for any reason whatsoever. This discretion, no matter how broad, does not permit the county to discriminate among applicants arbitrarily, capriciously, or on the basis of constitutionally suspect classifications: denying licenses on the basis of race or gender is impermissible, regardless of how Nevada categorizes occupations.

8 .Escort services must; among other things, provide patrons with written contracts and receipts, operate from an office open to the public, and keep copies of all published advertisements. CCC § 8.32.110.

9 . [T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct — even if expressive — falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct.

Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917.

10 . The regulation exempts many businesses from its requirements:

All professions, employments and businesses which are licensed by the state of Nevada or county of Clark pursuant to a specific statute or ordinance, and all employees employed by a business so licensed, and which perform an escort or escort bureau function as a service merely incidental to the primary function of such profession, employment or business and which do not hold themselves out to the public as an escort or escort bureau, are exempt from licensing pursuant to this chapter. Any employment agency, licensed by the state, which provides escorts as defined herein, must, however, obtain a license as required by this chapter.

CCC § 8.32.150.