National Amusements v. Town of Dedham
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National Amusements v. Town of Dedham, (1st Cir. 1995).
Opinion
USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1176
NATIONAL AMUSEMENTS, INC.,
Plaintiff, Appellant,
v.
TOWN OF DEDHAM,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
_________________________
Before
Selya, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_________________________
Theodore E. Dinsmoor, with whom Finnegan and Stanzler, P.C., ____________________ ___________________________
Philip Y. Brown, Grant Schwartz & Brown, Tad Jankowski, and Lori ________________ ______________________ _____________ ____
Wiechelt were on brief, for appellant. ________
Joyce Frank, with whom Kopelman and Paige, P.C. was on ____________ __________________________
brief, for appellee.
_________________________
January 4, 1995
_________________________
SELYA, Circuit Judge. This appeal presents a medley of SELYA, Circuit Judge. _____________
constitutional questions driven by the passage of a municipal by-
law that effectively prohibits the exhibition of motion pictures
at the town's only theater between the hours of 1:00 a.m. and
6:00 a.m. After careful consideration of appellant's
asseverational array, we affirm the district court's entry of
summary judgment in the municipality's favor.
I. BACKGROUND I. BACKGROUND
Plaintiff-appellant, National Amusements, Inc., owns
and operates Showcase Cinemas (Showcase), a complex containing 12
theaters located on Route 1 in Dedham, Massachusetts. In 1978,
appellant began exhibiting "midnight movies" on Friday and
Saturday nights. These performances started between 11:30 p.m.
and 12:30 a.m., and ended between 1:00 a.m. and 2:30 a.m.
On January 12, 1989, at a meeting of the Board of
Selectmen (Dedham's governing body), Selectman Kehoe raised the
issue of secondary effects, expressing particular concern over
purported traffic and security problems associated with
Showcase's operation of its business. At a selectmen's meeting
the following week, after another selectman reported that he had
received complaints about disruptions connected with appellant's
exhibition of midnight movies, the Board placed a proposed by-law
amendment on the warrant for the forthcoming annual Town
Meeting.1 The text of this proposal, denominated "Article 40,"
____________________
1The venerable institution of the town meeting is perhaps
more celebrated in New England than elsewhere. The colonial
government of Massachusetts first passed enabling legislation,
2
read in pertinent part:
To see if the Town will vote to amend Chapter
XIII of the Town By-Laws by adding the
following new section:
Section 42B- No holder of an entertainment
license for theatrical exhibition, public
show, public amusement, concert, dance or
exhibition . . . shall conduct business
between the hours of 12 midnight and 6:00
a.m.
The Board also sent a letter to William Towey, appellant's senior
vice-president, memorializing its "concern about the problems
generating from the Showcase Cinemas after the weekend late
shows," and indicating that the Board "would like to discuss this
situation . . . ." On February 2, Towey and approximately 30
interested residents met with the selectmen and discussed matters
related to the exhibition of midnight movies.
In response to the residents' articulated concerns,
Towey conferred with various townsfolk, including the police
chief. Thereafter, appellant agreed to undertake, at its
expense, a variety of measures designed to enhance security,
reduce noise levels, control traffic, and ameliorate the problem
of litter. Despite these concessions, the voters approved
____________________
entitled the "Town Act," in 1636. A 1647 version of the Town Act
gave municipalities the "power to make such laws and
Constitutions as may concern the welfare of their Town. Provided
they be not of a criminal but only of a prudential nature . . .
and not repugnant to the publick Laws." 1647 Mass. Town Act, The ___
Laws and Liberties of Massachusetts 50 (1648 & reprint 1929). _____________________________________
While Dedham's present-day Town Meeting operates under the aegis
of the Home Rule Amendment to the Massachusetts Constitution, see ___
Mass. Const. amend. art. 2, 1-9, amended by Mass. Const. __________
amend. art. 89; see also Bloom v. City of Worcester, 293 N.E.2d ___ ____ _____ _________________
268, 274-75 (Mass. 1973), it, too, possesses lawmaking capacity,
see Mass. Const. amend. art. 2, 6. ___
3
Article 40 at a Town Meeting held on April 10, 1989 (first
amending it to exempt ballroom dancing and to change the closing
time to 12:30 a.m.).
Under the Massachusetts scheme, municipal by-laws
cannot take effect without the imprimatur of the Attorney General
of the Commonwealth of Massachusetts. See Mass. Gen. L. ch.
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USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
_________________________
No. 94-1176
NATIONAL AMUSEMENTS, INC.,
Plaintiff, Appellant,
v.
TOWN OF DEDHAM,
Defendant, Appellee.
_________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge] ___________________
_________________________
Before
Selya, Circuit Judge, _____________
Bownes, Senior Circuit Judge, ____________________
and Stahl, Circuit Judge. _____________
_________________________
Theodore E. Dinsmoor, with whom Finnegan and Stanzler, P.C., ____________________ ___________________________
Philip Y. Brown, Grant Schwartz & Brown, Tad Jankowski, and Lori ________________ ______________________ _____________ ____
Wiechelt were on brief, for appellant. ________
Joyce Frank, with whom Kopelman and Paige, P.C. was on ____________ __________________________
brief, for appellee.
_________________________
January 4, 1995
_________________________
SELYA, Circuit Judge. This appeal presents a medley of SELYA, Circuit Judge. _____________
constitutional questions driven by the passage of a municipal by-
law that effectively prohibits the exhibition of motion pictures
at the town's only theater between the hours of 1:00 a.m. and
6:00 a.m. After careful consideration of appellant's
asseverational array, we affirm the district court's entry of
summary judgment in the municipality's favor.
I. BACKGROUND I. BACKGROUND
Plaintiff-appellant, National Amusements, Inc., owns
and operates Showcase Cinemas (Showcase), a complex containing 12
theaters located on Route 1 in Dedham, Massachusetts. In 1978,
appellant began exhibiting "midnight movies" on Friday and
Saturday nights. These performances started between 11:30 p.m.
and 12:30 a.m., and ended between 1:00 a.m. and 2:30 a.m.
On January 12, 1989, at a meeting of the Board of
Selectmen (Dedham's governing body), Selectman Kehoe raised the
issue of secondary effects, expressing particular concern over
purported traffic and security problems associated with
Showcase's operation of its business. At a selectmen's meeting
the following week, after another selectman reported that he had
received complaints about disruptions connected with appellant's
exhibition of midnight movies, the Board placed a proposed by-law
amendment on the warrant for the forthcoming annual Town
Meeting.1 The text of this proposal, denominated "Article 40,"
____________________
1The venerable institution of the town meeting is perhaps
more celebrated in New England than elsewhere. The colonial
government of Massachusetts first passed enabling legislation,
2
read in pertinent part:
To see if the Town will vote to amend Chapter
XIII of the Town By-Laws by adding the
following new section:
Section 42B- No holder of an entertainment
license for theatrical exhibition, public
show, public amusement, concert, dance or
exhibition . . . shall conduct business
between the hours of 12 midnight and 6:00
a.m.
The Board also sent a letter to William Towey, appellant's senior
vice-president, memorializing its "concern about the problems
generating from the Showcase Cinemas after the weekend late
shows," and indicating that the Board "would like to discuss this
situation . . . ." On February 2, Towey and approximately 30
interested residents met with the selectmen and discussed matters
related to the exhibition of midnight movies.
In response to the residents' articulated concerns,
Towey conferred with various townsfolk, including the police
chief. Thereafter, appellant agreed to undertake, at its
expense, a variety of measures designed to enhance security,
reduce noise levels, control traffic, and ameliorate the problem
of litter. Despite these concessions, the voters approved
____________________
entitled the "Town Act," in 1636. A 1647 version of the Town Act
gave municipalities the "power to make such laws and
Constitutions as may concern the welfare of their Town. Provided
they be not of a criminal but only of a prudential nature . . .
and not repugnant to the publick Laws." 1647 Mass. Town Act, The ___
Laws and Liberties of Massachusetts 50 (1648 & reprint 1929). _____________________________________
While Dedham's present-day Town Meeting operates under the aegis
of the Home Rule Amendment to the Massachusetts Constitution, see ___
Mass. Const. amend. art. 2, 1-9, amended by Mass. Const. __________
amend. art. 89; see also Bloom v. City of Worcester, 293 N.E.2d ___ ____ _____ _________________
268, 274-75 (Mass. 1973), it, too, possesses lawmaking capacity,
see Mass. Const. amend. art. 2, 6. ___
3
Article 40 at a Town Meeting held on April 10, 1989 (first
amending it to exempt ballroom dancing and to change the closing
time to 12:30 a.m.).
Under the Massachusetts scheme, municipal by-laws
cannot take effect without the imprimatur of the Attorney General
of the Commonwealth of Massachusetts. See Mass. Gen. L. ch. 40, ___
32. The Attorney General refused to sanction Article 40 on the
ground that the proposed amendment, by distinguishing ballroom
dancing from other forms of dance, was not content-neutral and
was, therefore, unconstitutional.
Undaunted, the Board of Selectmen proposed a neoteric
amendment, Article 4, for inclusion on the next Town Meeting
warrant. Article 4 provided in pertinent part:
To see if the Town will vote to amend Chapter
XIII of the Revised By-Laws of the Town of
Dedham, entitled "Police Regulations" by
adding a new section at the end thereof, as
follows: Section 57. __
Unless otherwise restricted, no holder of a
license issued by the Town of Dedham,
pursuant to Massachusetts General Laws,
Chapter 140, Sections 177A, 181 and 183A,
shall permit any activity licensed thereunder
to be conducted between the hours of 1:00
a.m. and 6:00 a.m.2
The voters adopted Article 4 at a special Town Meeting
held on November 6, 1989. The Attorney General approved it on
February 8, 1990. On the day that Article 4 took effect,
____________________
2The state laws cited in Article 4 authorize municipalities,
in general, to grant and revoke licenses for amusement devices,
concerts, dances, exhibitions, and public shows for which an
admission fee is charged.
4
appellant sued, charging that the by-law violated its rights
under both the federal and state constitutions.3 Following
pretrial discovery, Dedham successfully moved for summary
judgment. See National Amusements, Inc. v. Town of Dedham, 846 ___ __________________________ _______________
F. Supp. 1023 (D. Mass. 1994). This appeal ensued.
II. THE SUMMARY JUDGMENT STANDARD II. THE SUMMARY JUDGMENT STANDARD
A federal court may grant summary judgment in a civil
action "if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed. R. Civ. P. 56(c). The Supreme Court
fleshed out this rule in a trilogy of cases decided in the 1985-
86 term. See Celotex Corp. v. Catrett, 477 U.S. 317 (1986); ___ _____________ _______
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita ________ ___________________ __________
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). In ________________ __________________
general, these cases require that a party seeking summary
judgment make a preliminary showing that no genuine issue of
material fact exists. Once the movant has made this showing, the
nonmovant must contradict the showing by pointing to specific
facts demonstrating that there is, indeed, a trialworthy issue.
See Celotex, 477 U.S. at 324. ___ _______
To satisfy the criterion of trialworthiness, and
thereby forestall summary judgment, an issue must be "genuine,"
____________________
3Dedham agreed not to enforce the by-law against Showcase
pendente lite. This stipulation remains in effect. ________ ____
5
that is, the evidence relevant to the issue, viewed in the light
most flattering to the party opposing the motion, see Mack v. ___ ____
Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir. 1989), ___________________________
must be sufficiently open-ended to permit a rational factfinder
to resolve the issue in favor of either side. See Liberty Lobby, ___ _____________
477 U.S. at 250; Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir. ____ _______
1975), cert. denied, 425 U.S. 904 (1976). Trialworthiness _____ ______
necessitates "more than simply show[ing] that there is some
metaphysical doubt as to the material facts." Matsushita, 475 __________
U.S. at 586. As we have stated, "[t]he evidence illustrating the
factual controversy cannot be conjectural or problematic; it must
have substance in the sense that it limns differing versions of
the truth which a factfinder must resolve . . . ." Mack, 871 ____
F.2d at 181.
Trialworthiness requires not only a "genuine" issue but
also an issue that involves a "material" fact. See Liberty ___ _______
Lobby, 477 U.S. at 248. In this context, the term "material" _____
means that a fact has the capacity to sway the outcome of the
litigation under the applicable law. See id.; see also United ___ ___ ___ ____ ______
States v. One Parcel of Real Property, Etc. (Great Harbor Neck, ______ __________________________________ ___________________
New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir. 1992). If the __________________
facts on which the nonmovant relies are not material, or if its
evidence "is not significantly probative," Liberty Lobby, 477 _____________
U.S. at 249-50 (citations omitted), brevis disposition becomes ______
appropriate.
An order granting summary judgment engenders plenary
6
review. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir. 1993). ___ ______ _____
In conducting such review, we examine the summary judgment record
in the light most friendly to the summary judgment loser, and we
indulge all reasonable inferences in that party's favor. See id. ___ ___
Withal, we need not credit purely conclusory allegations, indulge
in rank speculation, or draw improbable inferences. See Medina- ___ _______
Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8(1st Cir. 1990). _____ _________________________
III. THE FIRST AMENDMENT CLAIM III. THE FIRST AMENDMENT CLAIM
The heart of appellant's case is its multifaceted claim
that the municipal by-law violates the First Amendment. We turn
directly to that claim (relegating appellant's related
overbreadth challenge to Part IV(C), infra). _____
A. Putting First Things First. A. Putting First Things First. __________________________
In the context of First Amendment challenges to
government regulations that burden speech, the Supreme Court has
identified two differing modes of analysis, or levels of
scrutiny, that may come into play. Since entertainment
constitutes a form of speech, fully protected by the First
Amendment, see Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 ___ _____ ______________________
(1981), our initial task is to determine the appropriate level of
judicial scrutiny that attaches to an analysis of Article 4. We
begin this endeavor by mapping the choices and putting them into
workable perspective.
Freedom of speech is among the most precious of our
constitutional rights. Thus, courts have long recognized that,
when governmental action places speech in special jeopardy,
7
special protections must apply. For this reason, a court
embarking on an inquiry into the constitutionality of
governmental action will devote "the most exacting scrutiny to
regulations that suppress, disadvantage, or impose differential
burdens on speech because of its content." Turner Broadcasting ____________________
Sys., Inc. v. FCC, 114 S. Ct. 2445, 2459 (1994); accord Simon & __________ ___ ______ _______
Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 112 S. ______________ _______________________________________
Ct. 501, 508 (1991); Widmar v. Vincent, 454 U.S. 263, 276 (1981). ______ _______
Strict scrutiny is desirable in these circumstances because such
laws "pose the inherent risk that the Government seeks not to
advance a legitimate regulatory goal, but to suppress unpopular
ideas or information or manipulate the public debate through
coercion rather than persuasion." Turner Broadcasting, 114 S. ___________________
Ct. at 2458. Courts therefore treat content-based regulations as
"presumptively invalid" under the First Amendment. R.A.V. v. ______
City of St. Paul, 112 S. Ct. 2538, 2542 (1992). ________________
In contrast, regulations that burden speech, but that
are unrelated to the speaker's viewpoint or to the content of the
proscribed speech, are subject to a less taxing (but nonetheless
meaningful) level of judicial scrutiny. This disparate treatment
is justified because, on the whole, non-content-based regulations
pose "a less substantial risk of excising certain ideas or
viewpoints from the public dialogue." Turner Broadcasting, 114 ___________________
S. Ct. at 2459. Phrased another way, since regulations that are
not content-based portend less jeopardy for freedom of speech,
the special prophylaxis that strict scrutiny ensures is less
8
necessary.
This dichotomy has important practical ramifications
for constitutional analysis as the applicable indices of
constitutionality vary according to the level of scrutiny that
attaches. Strict judicial scrutiny makes it less likely that any
given regulation will clear the constitutional hurdle for, in its
domain, the operative test is whether a regulation "is necessary
to serve a compelling state interest and is narrowly drawn to
achieve that end." Arkansas Writers' Project, Inc. v. Ragland, ________________________________ _______
481 U.S. 221, 231 (1987). Under ordinary First Amendment
scrutiny sometimes called "intermediate" scrutiny in
recognition of the fact that all First Amendment scrutiny is more ___
demanding than the "rational basis" standard that is often used
to gauge the constitutionality of economic regulations, see ___
Turner Broadcasting, 114 S. Ct. at 2458; see also Madsen v. ____________________ ___ ____ ______
Women's Health Ctr., Inc., 114 S. Ct. 2516, 2537 (1994) (Scalia, __________________________
J., concurring in part and dissenting in part) the test is
less exacting in both the "ends" and "means" segments of the
equation. Thus, where intermediate scrutiny pertains,
restrictions on the time, place, or manner of protected
expression "are valid provided that they are justified without
reference to the content of the regulated speech, that they are
narrowly tailored to serve a significant governmental interest,
and that they leave open ample alternative channels for
communication of the information." Clark v. Community for _____ ______________
Creative Non-Violence, 468 U.S. 288, 293 (1984). _____________________
9
B. Identifying the Level of Scrutiny. B. Identifying the Level of Scrutiny. _________________________________
In light of these differing analytic modalities, it is
unsurprising that many First Amendment battles over the
constitutionality of government regulations start with a debate
about what level of scrutiny is appropriate. The instant case is
no exception. Here, appellant advances two main theses in
support of its exhortation that Dedham's by-law must be subjected
to strict scrutiny. First, it maintains that Article 4 is
content-based. Second, it maintains that Article 4 impermissibly
singles out, and thus targets, Showcase's exhibition of midnight
movies. Neither thesis merits a passing grade.
1. Relationship to Content. Appellant's flagship 1. Relationship to Content. _________________________
claim portrays Article 4 as a content-based regulation. If
sustainable, this characterization would require us to employ the
most exacting scrutiny in evaluating the by-law's
constitutionality. See, e.g., Simon & Schuster, 112 S. Ct. at ___ ____ _________________
508. Be that as it may, we do not think that the
characterization is apt.
The concept of what constitutes a content-based as
opposed to a content-neutral regulation has proven protean in
practice. The Court's cases teach that the "principal inquiry in
determining content neutrality, in speech cases generally and in
time, place, or manner cases in particular, is whether the
government has adopted a regulation of speech because of
disagreement with the message it conveys." Ward v. Rock Against ____ ____________
Racism, 491 U.S. 781, 791 (1989) (citation omitted). Even a ______
10
regulation that does not choose sides or otherwise convey
disapproval of a particular message can run afoul of this dictate
because the "First Amendment's hostility to content-based
regulation extends . . . to prohibition of public discussion of
an entire topic." Consolidated Edison Co. v. Public Serv. ________________________ ____________
Comm'n, 447 U.S. 530, 537 (1980); accord Simon & Schuster, 112 S. ______ ______ ________________
Ct. at 509. This does not mean, however, that the sovereign must
steer away from content at all costs, or else risk strict
scrutiny. "A regulation that serves purposes unrelated to the
content of expression is deemed neutral, even if it has an
incidental effect on some speakers or messages but not others."
Ward, 491 U.S. at 791; see also City of Renton v. Playtime ____ ___ ____ ________________ ________
Theatres, Inc., 475 U.S. 41, 47-48 (1986). ______________
The subject of our inquiry here seems at first blush to
be the very model of a content-neutral regulation. Article 4, by
its terms, does not demand reference to the content of the
affected speech in order to determine if the ordinance applies;
the only requisite reference is to an external characteristic:
whether the activity is licensed under one of several particular
sections of state law. Furthermore, nothing in the record
suggests that Article 4 arose out of an effort to suppress some
particular message communicated through Showcase's selection of
motion pictures. In all events, any such forensic fizgig would
be easily defused, because the midnight movies comprise exactly
the same fare that appellant displays during the hours when the
theater's operation is totally unaffected by Article 4.
11
Faced with so formidable a set of barriers, appellant
hems and haws. In the end, it theorizes that Article 4 is
content-based because, while banning licensed activity in the
early morning hours, the by-law leaves untouched other forms of
expression, say, unlicensed entertainment, street demonstrations,
public speeches, and candlelight vigils. In appellant's view,
this distinction is driven by a value judgment the town's
conscious decision to place less worth on licensed entertainment
than on unlicensed entertainment and thus constitutes
"irrational discrimination between the secondary effects of
prohibited and permitted forms of expression based solely on the
charge of an admission fee." Appellant's Brief at 26.
As authority for this bold proposition, appellant cites
City of Cincinnati v. Discovery Network, Inc., 113 S. Ct. 1505 ___________________ ________________________
(1993). We do not believe that the case can carry the cargo that
appellant piles upon it. In Discovery Network, a city, motivated _________________
by interests in both safety and aesthetics, imposed a categorical
ban on the distribution, via newsrack, of "commercial handbills,"
but allowed the continued distribution of "newspapers"
(containing primarily noncommercial speech). Id. at 1507-09. ___
This policy clearly favored noncommercial speech over commercial
speech, and, under it, "whether any particular newsrack falls
within the ban is determined by the content of the publication
resting inside that newsrack." Id. at 1516. On that ___
understanding, the Court found the ban to be content-based. See ___
id. at 1516-17. In so holding, the Justices, though ___
12
acknowledging that the city had a legitimate interest in limiting
the number of newsracks, gave short shrift to Cincinnati's
suggestion that the regulation was content-neutral because it was
born of a desire to combat certain distasteful secondary effects
associated with newsracks. The Court contrasted the case with
Renton, explaining that Cincinnati had failed to identify any ______
"secondary effects attributable to respondent publishers'
newsracks that distinguish them from the newsracks Cincinnati
permits to remain on its sidewalks." Id. at 1517. ___
Appellant's reliance on Discovery Network is mislaid. _________________
Whether Cincinnati's regulation applied to a particular newsrack
was determined by necessary reference to the subject matter of
the specific publications contained therein a telltale
harbinger of content-based regulation. Dedham's regulation is
not of this ilk; Article 4 applies without reference to either
the content of the entertainment or the communicative impact of
any speech. Unlike in Discovery Network, the applicability __________________
determination is based solely on an external, content-neutral
characteristic the existence of an admission fee.
To rub salt in an open wound, appellant not only
misapprehends the import of Discovery Network, but also overreads _________________
the Court's opinion. The case does not stand for the sweeping
proposition that any differential treatment of speakers renders a ___
regulation content-based. Instead, the Court's holding pivots on
the conclusion that, though the city's underlying purpose in
enacting the ordinance was proper, the differential treatment of
13
speakers had no relationship to that underlying purpose.4 See ___
id. at 1517. Thus, Discovery Network establishes a much narrower ___ _________________
proposition: that, even when a municipality passes an ordinance
aimed solely at the secondary effects of protected speech (rather
than at speech per se), the ordinance may nevertheless be deemed ___ __
content-based if the municipality differentiates between speakers
for reasons unrelated to the legitimate interests that prompted _________________________________________________________________
the regulation. Cf. Carey v. Brown, 447 U.S. 455, 465 (1980) ______________ ___ _____ _____
(sustaining challenge to statute permitting labor, but not
nonlabor, picketing, because "nothing in the content-based labor-
nonlabor distinction ha[d] any bearing" on the state's legitimate
interest in privacy).
Here, Dedham's stated interest in enacting Article 4
is, and has been, to reduce the number of sources of potential
noise and disturbance.5 Such an objective is plainly within the
office of municipal government. Accordingly, the relevant
question reduces to whether Dedham has offered a neutral
justification for the differential treatment that Article 4
accords to purveyors of licensed entertainment, on the one hand,
and purveyors of unlicensed entertainment, on the other hand. On
the facts of this case, the question requires us to ascertain
whether there are any secondary effects attributable to licensed
____________________
4In this regard, it is interesting that, as applied, the
regulation outlawed only 62 newsracks while permitting over 1,500
others to remain in service. See Discovery Network, 113 S. Ct. ___ _________________
at 1510.
5We discuss appellant's claim that Dedham's stated interest
is illusory and-or pretextual in Part III(C)(1), infra. _____
14
(commercial) amusements that distinguish them from the unlicensed
(noncommercial) amusements that Dedham has left unregulated. See ___
Discovery Network, 113 S. Ct. at 1517. _________________
We answered the same question in a slightly different
setting in Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d _______________________ ______________
1115 (1st Cir. 1981). There, several adult bookstores challenged
the constitutionality of a municipal licensing ordinance (enacted
pursuant to Mass. Gen. L. ch. 140, 181, a statute referenced in
Dedham's amended by-law) on the ground, inter alia, that the _____ ____
ordinance treated commercial and noncommercial amusements
differently. In response, we rejected
appellant's argument that the statute and the
ordinance are facially underinclusive by
reason of their failure to subject non-
commercial amusements to the same licensing
requirements. We think a legislature could
reasonably conclude that non-commercial
amusements present sufficiently less
likelihood of the harms sought to be
prevented to justify their differential
treatment.
Fantasy Book Shop, 652 F.2d at 1121 n.6 (offering examples). _________________
In the case at bar, we think it self-evident that a
legislative body might reasonably conclude that the frequency and
regularity of activity inherent in an ongoing commercial venture
heighten the probability of late-night disruptions and boost the
number of likely participants. The profit motive itself, which
encourages marketing and promotion aimed at increased
consumption, is the surest indicator that, where commercial
amusements operate, crowds will probably gather. Hence, the
distinction drawn by Dedham between licensed and unlicensed
15
entertainment bears a rational relationship to the specific
interests cited by it in enacting Article 4. It follows
inexorably that, notwithstanding the differential treatment that
the by-law gives to unlicensed as opposed to licensed
entertainment, it cannot successfully be condemned as content-
based.
2. Targeting. Warbling from a different perch, 2. Targeting. _________
appellant asseverates that Article 4 should be strictly
scrutinized because it singles out, and in that sense targets,
Showcase's midnight movies. This asseveration rests on the
notion that strict scrutiny is always justified when a ______
municipality enacts an ordinance that, in practical effect,
regulates the First Amendment rights of a select group. We
consider the notion misguided.
In mounting its "targeting" offensive, appellant relies
primarily on Minneapolis Star & Tribune Co. v. Minnesota Comm'r _______________________________ ________________
of Revenue, 460 U.S. 575 (1983). In Minneapolis Star, the Court __________ _________________
struck down a state use tax on newsprint and ink, ruling that the
tax violated the First Amendment both because it "singled out the
press for special treatment" by taxing newspapers in a manner
"without parallel in the State's tax scheme," id. at 582, and ___
because it impermissibly "target[ed] a small group of newspapers"
within the press as a whole, id. at 591.6 In reaching this ___
result, the Court consigned the Minnesota statute to strict
____________________
6Because the Minnesota tax exempted the first $100,000 worth
of newsprint and ink used annually by each publisher, its burden
fell almost exclusively on large newspapers.
16
scrutiny, reasoning:
When the State singles out the press, . . .
the political constraints that prevent a
legislature from passing crippling taxes of
general applicability are weakened, and the
threat of burdensome taxes becomes acute.
That threat can operate as effectively as a
censor to check critical comment by the press
. . . .
Id. at 585. The Court added that "differential treatment, unless ___
justified by some special characteristic of the press, suggests
that the goal of the regulation is not unrelated to suppression
of expression, and such a goal is presumptively
unconstitutional." Id. ___
Before attempting to transplant the teachings of
Minneapolis Star, it is important to recall that, in a later _________________
case, the Court revisited the matter of differential taxation.
See Leathers v. Medlock, 499 U.S. 439 (1991). There, the Court ___ ________ _______
ruled that Arkansas could extend its generally applicable sales
tax to cable television and satellite services, while exempting
print media, without offending the First Amendment. The Court
refined the analysis it had crafted in Minneapolis Star, _________________
explaining that targeting engenders strict scrutiny only when
regulations (1) single out the press, (2) take aim at a small
group of speakers, or (3) discriminate on the basis of the
content of protected speech. Id. at 447. Because the Arkansas ___
tax measure avoided these pitfalls for example, there was "no
indication" that Arkansas "targeted cable television in a
purposeful attempt to interfere with . . . First Amendment
activities," id. at 448 the Court concluded that the statute ___
17
did not warrant strict scrutiny.
It is incumbent upon us to inspect this case through
the precedential prism of Minneapolis Star and Leathers. Reduced ________________ ________
to bare essence, appellant's argument for strict scrutiny based
on targeting necessarily rises or falls on the second of the
three criteria identified by the Leathers Court. We believe it ________
falls, for Article 4 does not target Showcase either as a speaker
or as a business.
By its terms, Article 4's proscription on activity
between 1:00 a.m. and 6:00 a.m. applies to a myriad of other
First Amendment speakers, such as persons who from time to time
may hold licenses for concerts, dances, or plays. And, moreover,
First Amendment speakers are not the only businesses prohibited
from late-night operation in Dedham; there is substantial
evidence in the record to support the town's contention that the
disputed by-law is simply the latest in a progression of by-laws
designed to ensure that commercial activities do not impinge
unduly on private, residential life.7 In this respect, Article
4 is more akin to the tax in Leathers an impost that the Court ________
upheld because it was an extension of a generally applicable tax,
499 U.S. at 447 than to the tax in Minneapolis Star an impost ________________
____________________
7For example, section 42 of the town's revised by-laws, as
amended in 1976, prohibits individuals from selling food at
retail between 12:00 midnight and 6:00 a.m. Section 42A, added
to the by-laws in 1976 and thereafter revised slightly in 1979,
proscribes the sale of virtually all retail commodities except
fuel products between 12:00 midnight and 6:00 a.m. Dedham also
has adopted a by-law forbidding the illumination of signs for
retail establishments during the same six-hour interval.
18
that the Court struck down because it was "without parallel in
the State's tax scheme," 460 U.S. at 582.
To cinch matters, appellant's targeting argument also
flies in the teeth of the secondary effects doctrine. Under
appellant's formulation, any regulation that has an effect on
fewer than all First Amendment speakers or messages could be
deemed to be a form of targeting and thus subjected to strict
scrutiny. Yet the Supreme Court has recognized that a
municipality lawfully may enact a regulation that "serves
purposes unrelated to the content of expression . . . even if it
has an incidental effect on some speakers or messages but not
others." Ward, 491 U.S. at 791. ____
Even appellant's most vaunted precedent does not
support its targeting argument. In Minneapolis Star, the Court ________________
did not condemn all regulations that single out First Amendment
speakers for differential treatment; rather, the Court
acknowledged that certain forms of differential treatment may be
"justified by some special characteristic" of the regulated
speaker. 460 U.S. at 585. Secondary effects can comprise a
special characteristic of a particular speaker or group of
speakers. Accordingly, the language we have quoted from
Minneapolis Star comfortably accommodates an exception to the _________________
prohibition on differential treatment for regulations aimed at
secondary effects, so long as the disparity is reasonably related
19
to a legitimate governmental interest.8
In sum, appellant's targeting argument, like its
argument about content quality, fails to furnish a cognizable
basis for invoking strict scrutiny. We, therefore, apply an
intermediate level of scrutiny in considering the
constitutionality of
Article 4.
C. Applying Intermediate Scrutiny. C. Applying Intermediate Scrutiny. ______________________________
Strict scrutiny aside, restrictions on the time, place,
and manner of protected expression and Article 4 plainly
qualifies as such a restriction should be upheld so long as
they are content neutral, closely tailored to serve a significant
governmental interest, and allow for reasonable alternative
channels of communication. See Renton, 475 U.S. at 50; Clark, ___ ______ _____
468 U.S. at 293. Appellant says that Article 4 fails to satisfy
any of these three criteria. We do not agree.
1. Governmental Interest. Dedham maintains that the 1. Governmental Interest. _____________________
voters enacted Article 4 to "preserve peace and tranquility for
Town citizens during the late evening hours." Such an interest,
in the abstract, suffices to justify a content-neutral
____________________
8Appellant's continued insistence that Article 4 unlawfully
targets Showcase because it was conceived in response to
complaints about disruptions incident to the midnight movies
reflects a distorted view both of the secondary effects doctrine
and of how a representative democracy functions. An ordinance is
not called into constitutional question because its enactment is
prompted by non-speech-related concerns (e.g., crime, traffic, ____
noise) stemming from the activity of a specific entity. So here:
it works no constitutional insult that the community's concerns
about the midnight movies acted as a catalyst that spurred the
passage of a generally applicable regulation.
20
restriction on protected speech (so long as other requirements
are met). No less an authority than the Supreme Court has
observed that government's "interest in protecting the well-
being, tranquility, and privacy of the home is certainly of the
highest order in a free and civilized society." Carey, 447 U.S. _____
at 471.
Appellant concedes the theoretical validity of the
town's interest in preserving peace and tranquility, but insists
that the record evinces a genuine question as to whether Dedham's
articulated concerns, such as noise, crime, and litter, are
founded in fact. Going a step further, appellant also contends
that Dedham's asserted interest is pretextual, and that a race-
based animus, instead of a desire to promote serenity, motivated
the adoption of the by-law. The record fails to bear out either
of these claims.
a. a. __
As an initial matter, appellant asserts that Dedham's
professed governmental interest is not substantial because
exhibiting midnight movies did not adversely affect the
peacefulness of the community, and, therefore, the secondary
effects at which Article 4 is aimed are illusory. We agree with
appellant's premise: a governmental interest woven exclusively
out of the gossamer threads of speculation and surmise cannot be
termed substantial. However, we disavow appellant's conclusion:
the record before us consists of sturdier stuff and tells a story
that strongly supports Dedham's stated purpose. We canvass
21
certain key pieces of evidence.
Before Article 4 was more than a gleam in its sponsors'
eyes, numerous citizens had complained about vandalism,
trespassing, noise, and late-night traffic through residential
neighborhoods (with accompanying disruption from headlight
glare). On January 19, 1989, Selectman Hoell emphasized at a
selectmen's meeting "his concern and the concern of the neighbors
in the area of the Cinema regarding incidents at the Cinema
during and after the late showings on weekends." At the same
meeting, Selectman Kehoe noted that she had "received calls from
residents" complaining about "many incidents" at the site, and
the police chief, Dennis Teehan, reported to the selectmen that
"[t]here have been numerous incidents happening in the area . . .
after the midnight shows let out." At the February 2 selectmen's
meeting, several residents, including John Birda, Bob Zieman, and
John Howard, complained that appellant's late-night operations
resulted in disruptions, such as noise in the vicinity of a
nearby bus stop. Additionally, appellant acknowledged in the
district court that, between February 2 and April 6, its
representatives "met with . . . Dedham residents on five separate
occasions," and that, during these meetings, it "proposed and
developed plans to alleviate any articulated concerns pertaining
to traffic, noise and security at or around the Showcase Cinemas
complex." Appellant's Complaint, 10. Appellant then put these
plans (including, for example, a beefed-up police presence, added
patrols, and a litter-removal program) into effect at its expense
22
thus lending a patina of plausibility to the complaints.
Robert Cedrone, chairman of the Poor Farm Committee, a
neighborhood alliance, capsulized the situation, describing it in
the following terms at the April 24 Town Meeting:
[There are] more people coming out of the
late show cutting through the neighborhood,
cutting through back yards. The elderly
people still can't get used to that, even
with the extra police protection . . . . The
people in this neighborhood got to go to
sleep . . . . They're sleeping on eggs out
there.
Appellant attempts to brush aside these remonstrances.
Based on information developed through an in-depth investigation
conducted in the course of litigation (and, therefore, well after
the fact), it argues that the residents' complaints proved to be
phantoms, and that, therefore, Dedham failed to carry its burden
of establishing that Article 4 actually serves a substantial
governmental interest. In advancing this proposition, appellant
in effect argues that a municipality cannot credit complaints and
other evidence related to past problems with a particular
activity or enterprise unless and until it conducts an
independent investigation and corroborates each incident. We do
not believe that local legislatures are so constrained.
A legislative body can act without first acquiring
irrefutable proof. In other words, lawmakers need not bury each
piece of described trash before acting to combat litter, or
confirm each honking horn before acting to abate noise levels.
Instead, a legislative body, acting in furtherance of the public
interest, is entitled to rely on whatever evidence it "reasonably
23
believe[s] to be relevant to the problem" at hand. Renton, 475 ______
U.S. 51-52.9 Here, it seems pellucid that, in addressing
problems of crime, litter, and noise posed by late-night
commercial entertainment activities, Dedham had ample reason to
assume that the collocation of factors on display at the Town
Meeting recurrent, wide-ranging complaints lodged by residents,
constabulary concern with a pattern of incidents reasonably
believed to have occurred in connection with the exhibition of
midnight movies, and a commonsense realization that the placidity
of a residential community will be jeopardized by an activity
that regularly draws hundreds of late-night patrons, most in
automobiles, who must then depart in the early morning hours
____________________
9Appellant reads Renton with an astigmatism bred of self- ______
interest. To be sure, as appellant suggests, the Ninth Circuit
initially found the city's stated justifications for the
ordinance to be speculative because the city enacted it without
the benefit of any studies relating to the city's "particular
problems or needs." Renton, 475 U.S. at 50 (citation omitted). ______
But the Supreme Court determined that the Ninth Circuit had
"imposed on the city an unnecessarily rigid burden of proof,"
id., reasoning that "[t]he First Amendment does not require a ___
city, before enacting such an ordinance, to conduct new studies
or produce evidence independent of that already generated by
other cities, so long as whatever evidence the city relies upon
is reasonably believed to be relevant to the problem that the
city addresses," id. at 51-52. To the extent it is relevant ___
here, Renton stands for the proposition that a municipality may ______
rely upon the experience of other communities in assessing, and
then addressing, particular problems. It neither holds nor
suggests that a city is debarred from using its own experiences ____________________
for the same purpose. See Ward, 491 U.S. at 800 (holding that a ___ ____
city's substantial interest in limiting sound volume was
satisfactorily "evidenced by the complaints about excessive
volume generated by respondent's past concerts").
24
were relevant to, and probative of, its assessment of the
problem.10 Consequently, we reject appellant's contention that
Dedham's asserted governmental interest is a phantom.
b. b. __
In addition to attacking the credibility of the town's
anecdotal evidence, appellant asserts that Article 4's "ulterior
purpose is to keep African Americans out of Dedham . . . ."
Appellant's Brief at 39. This is a serious charge and we treat
it as such. Having scoured the record, we agree with the
district court that the allegation stands unproven.
In support of the accusation, appellant relies
principally upon a survey purporting to demonstrate that the
audience composition for Showcase's midnight movies is
approximately 80% African-American as contrasted with an audience
composition of approximately 30% African-American for other
screenings. Appellant buttressed the survey results with the
affidavit of the theater manager, Anthony Pungitore, to the
effect that midnight movie audiences have been "predominantly"
African-American, at least since 1986. The district court
articulated an abiding concern about the relevance and validity
____________________
10In respect to governmental interest, the material fact is
whether Dedham had adequate reason to act upon its stated
concerns, not, as appellant would have it, whether Dedham's
concerns were well-founded. As to the former, the evidence is
overwhelming. Hence, the lower court appropriately granted
summary judgment on this issue.
25
of the survey evidence,11 but eventually accepted it arguendo ________
for summary judgment purposes as probative of "the racial mix of
Showcase audiences." National Amusements, 846 F. Supp. at 1028. ___________________
Nevertheless, the district court found the record "devoid of
evidence that race played a role in the decision to adopt the By-
law." Id. We reach the same conclusion. ___
Even accepting appellant's assertion as to the racial
composition of the midnight movie audiences, appellant has not
linked that fact to the municipal decisionmaking process. That
is to say, appellant cites no evidence that any person involved
in the passage of Article 4 was aware at that time of the racial ____________
composition of Showcase's audiences. This omission is fatal to a
claim of intentional racial discrimination. See Washington v. ___ __________
Davis, 426 U.S. 229, 240 (1976) (elucidating "the basic equal _____
protection principle that the invidious quality of a law claimed
to be racially discriminatory must ultimately be traced to a
racially discriminatory purpose"); Village of Arlington Heights _____________________________
v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265 (1977) ________________________________
(similar; rejecting claim that municipality's zoning decision was
racially discriminatory); cf. Personnel Adm'r v. Feeney, 442 U.S. ___ _______________ ______
256, 279 (1979) (explaining that the requirement of
discriminatory purpose "implies that the decisionmaker . . .
____________________
11The survey results were tabulated by a market research
firm that appellant engaged for several weeks in the summer of
1993 (three years after the Town Meeting enacted Article 4). The
surveyors noted theatergoers' races, and asked a representative
sampling of midnight movie patrons, of all races, why each
individual chose to attend the late show.
26
selected or reaffirmed a particular course of action at least in
part `because of,' not merely `in spite of,' its adverse effects
upon on an identifiable group").
Appellant labors valiantly to fill this void, citing
statements from various selectmen and town meeting members that
are, to appellant's way of thinking, code words demonstrating
"institutional racism." Appellant's Brief at 41. Typical of
these comments are Selectman Kehoe's reference to "these young
kids, who don't even live in Dedham," and Selectman Hoell's
references to "nice little out-of-towners" and "the undesirable
element that's attracted by [Showcase's] activity." But these
statements, if viewed in the most cynical light, are at worst
ambiguous. Standing alone, they are insufficient to raise an
inference of racial animus. The record chronicles the lengthy
series of events incident to the town's consideration of Article
4, and does not contain the slightest indication that the race of
theatergoers was an issue. To the contrary, all the evidence
supports Dedham's assertion that Article 4 was aimed principally
at curbing late-night disruptions. Against this backdrop, the
snippets that appellant has extracted from the record with near-
surgical precision simply do not support an inference of racism
on the part of the legislative body.
While the summary judgment mantra requires us to draw
every reasonable inference in favor of the nonmoving party,
inferences, to qualify, must flow rationally from the underlying
facts; that is, a suggested inference must ascend to what common
27
sense and human experience indicates is an acceptable level of
probability. Cf. Dartmouth Review v. Dartmouth Coll., 889 F.2d ___ ________________ ________________
13, 16 (1st Cir. 1989). This means, of course, that a court
pondering a Rule 56 motion need not embrace inferences that are
wildly improbable or that rely on "tenuous insinuation." Mesnick _______
v. General Elec. Co., 950 F.2d 816, 826 (1st Cir. 1991), cert. __________________ _____
denied, 112 S. Ct. 2965 (1992). ______
This principle is dispositive of appellant's claim of
racial discrimination. While ambiguous remarks may, under some
circumstances, help to illuminate the summary judgment record,
such remarks rarely will suffice to conceive an issue of material
fact when none otherwise exists.12 As we stated in Mesnick, a _______
court is not under an obligation "to draw unreasonably
speculative inferences in mulling whether the plaintiff fulfilled
his burden of adducing `specific facts showing that there is a
genuine issue for trial.'" Id. (quoting Liberty Lobby, 477 U.S. ___ _____________
____________________
12On this point, case law in the age discrimination context
is instructive. In that milieu, courts frequently have ruled
that ambiguous remarks, without more, are not enough to raise an
inference of an employer's discriminatory intent. See, e.g., ___ ____
Thomure v. Phillips Furniture Co., 30 F.3d 1020, 1025 (8th Cir. _______ _______________________
1994) (employer's suggestion to employee that he "might want to
consider retirement" rather than accept a pay cut found not
probative of age discrimination); Vega v. Kodak Caribbean, Ltd., ____ _____________________
3 F.3d 476, 481 (1st Cir. 1993) (supervisor's statement that
company sheltered "no sacred cows" insufficient to raise
inference of age discrimination); Mesnick, 950 F.2d at 826 _______
(supervisor's comment that he was "sad to lose the youth of the
work force" did not, by itself, raise an inference of bias
against older employees); Merrick v. Farmers Ins. Group, 892 F.2d _______ __________________
1434, 1438-39 (9th Cir. 1990) (affirming summary judgment for
employer despite supervisor's comment that he chose plaintiff's
replacement because the latter was "a bright, intelligent,
knowledgeable young man").
28
at 256). It follows that, "[e]ven in cases where elusive
concepts such as motive or intent are at issue, summary judgment
may be appropriate if the nonmoving party rests merely upon
conclusory allegations, improbable inferences, and unsupported
speculation." Medina-Munoz, 896 F.2d at 8; see also Manego v. ____________ ___ ____ ______
Cape Cod Five Cents Sav. Bank, 692 F.2d 174, 177 (1st Cir. 1982) _____________________________
(recognizing that, at the summary judgment stage, "smoke alone is
not enough to force the defendants to a trial to prove that their
actions were not [racially] discriminatory"; a plaintiff must at
least identify "some glowing embers"). So here: asking a court
to infer, based on nothing more than the uncommunicated existence
of a predominantly African-American theater audience and a
handful of arguably ambiguous statements, that a deliberative
body of several hundred members acted out of a race-based animus
in passing a facially neutral law is simply too much of a
stretch.
Because courts occupy a special place in our democracy,
they must be especially careful not to succumb to the merchants
of conjecture. Consequently, they must deal in facts as opposed
to suspicions, and in plausible inferences as opposed to
speculative suppositions. Fidelity to this ideal constrains us
to rebuff appellant's postulatory claim that racial animosity
paved the way for Article 4's passage. The record reflects no
trialworthy dispute on this issue.
2. Narrow Tailoring. Appellant complains that Article 2. Narrow Tailoring. ________________
4 is not narrowly tailored because it affects all licensed ___
29
entertainment, irrespective of any individualized impact on
crime, noise, traffic, or trash. The irony of this position is
not lost upon us: appellant seemingly demands in this breath
that Article 4 be limited to Showcase Cinemas because the
relevant secondary effects have been linked predominantly to that
entity, yet in an earlier breath denounced such a focus as
impermissible targeting, see supra Part III(B)(2). We reject ___ _____
this anfractuous effort to trap Dedham between the Scylla of
narrow tailoring and the Charybdis of targeting.
In Ward, the Court explained that the narrow tailoring ____
requirement does not mandate a least restrictive means analysis;
"[r]ather, the requirement of narrow tailoring is satisfied so
long as the . . . regulation promotes a substantial government
interest that would be achieved less effectively absent the
regulation." Ward, 491 U.S. at 799 (internal quotation omitted). ____
Article 4 meets that test: it promotes the substantial
government interest of preserving tranquility an interest that,
as Dedham's past experience demonstrates, would not be achieved
as effectively absent the regulation. Nor is the regulation
rendered infirm by its general applicability to all licensed
entertainment. It is within a legislature's legitimate purview
to conclude that such secondary effects as late-night noise and
traffic are likely to adhere to all commercial entertainment. ___
Indeed, the very existence of a licensing scheme, with its built-
in emphasis on commercial amusements, supports Dedham's decision
to enact a generally applicable regulation. See, e.g., Fantasy ___ ____ _______
30
Book Shop, 652 F.2d at 1121 n.6 (explaining that a legislature __________
may regulate licensed entertainment based on a reasonable
likelihood that patrons would create "excessive noise" or engage
in "disruptive or illegal conduct").
3. Alternate Avenues of Communication. Appellant's 3. Alternate Avenues of Communication. ___________________________________
contention that Article 4 is invalid because it does not allow
for "ample alternative channels for communication of the
information," Clark, 468 U.S. at 293, need not detain us. The _____
record conclusively demonstrates that adequate alternatives exist
allowing appellant to communicate, and audiences to receive, the
message contained in the midnight movies. The ban on licensed
entertainment affects only five hours out of each 24-hour day,
leaving appellant 19 hours (or roughly 80% of each day) in which
to communicate its cinematic message. Indeed, the very same
films that can no longer be exhibited between 1:00 a.m. and 6:00
a.m. will still be shown an average of six times a day on Fridays
and Saturdays, and will be exhibited for roughly 13 hours a day
on the other five days of the week.
Appellant readily acknowledges the frequency of its
exhibitions, but nonetheless argues that the ban on midnight
movies forecloses the opportunity to communicate its message to a
distinct segment of the movie-going public. To bolster this
argument, it again retreats to its survey. The survey results
indicate that, out of a random sampling of midnight moviegoers,
14% said that they attended late shows because they "had to work
late, and could only come to a late show," and 11% "felt that the
31
midnight show was the only entertainment option open to him/her."
From these somewhat inscrutable results, appellant's market
research firm concluded that:
The late [midnight] show is the only
opportunity that the Theater has to exhibit
films in order to communicate with a distinct
portion of its patrons. Showing films
earlier in the day is not a viable means of
communication with this segment, because, as
indicated by the survey results, these
patrons are extremely unlikely and/or unable
to attend earlier shows.
There are a slew of problems with appellant's analysis.
First, the survey is not particularly informative because it
focuses on the patrons' options on one particular night.13 __________________________
Thus, patrons who identified the midnight movies as their "only
entertainment option" or who said they "could only come to a late
show" may well have been confining their answers to one specific
evening. Questions of more general applicability were
conspicuously lacking. Hence, the wording of the survey defeats
appellant's attempted reliance on it.
Second, it is reasonable to assume that midnight movies
are commercially successful because some people prefer to attend ______
them. Yet, thwarting such an idiosyncratic preference cannot be
equated with a denial of adequate avenues of communication.
Although Article 4 diminishes the total quantity of appellant's
speech in some measure, and simultaneously curtails its
____________________
13For example, Question No. 2 asked: "Why did you come to
the `Midnight Show' tonight?" (emphasis supplied). Similarly, _______
Question No. 3 asked: "If you couldn't get into the movies
tonight, what other entertainment options would you have?" _______
(emphasis supplied).
32
opportunity to communicate with some patrons, those are necessary
side effects of almost any restriction on speech. As long as
restrictions are content-neutral, some diminution in the overall
quantity of speech will be tolerated. See, e.g., City Council of ___ ____ _______________
Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 803, 812 ____________ ______________________
(1984) (finding ample alternative avenues of communication
despite assumption that the ordinance "diminishe[d] the total
quantity" of appellees' speech).
In short, the lens of inquiry must focus not on whether
a degree of curtailment exists, but on whether the remaining
communicative avenues are adequate. As the Court phrased it:
"That the city's limitations on volume may reduce to some degree
the potential audience for respondent's speech is of no
consequence, for there has been no showing that the remaining
avenues of communication are inadequate." Ward, 491 U.S. at 802. ____
Given 19 hours a day within which to exhibit movies, with no
special limitations on content, appellant's evidence does not
call into legitimate question the adequacy of the alternate
routes for communication.
D. Recapitulation. D. Recapitulation. ______________
To recapitulate, Dedham has demonstrated, in conformity
with the protocol of Rule 56, that Article 4 escapes strict
scrutiny. Dedham has also demonstrated that Article 4 survives
the lesser degree of scrutiny that obtains here. The municipal
by-law is designed to serve a substantial governmental interest,
it is narrowly tailored in the service of that interest, and it
33
leaves open ample avenues of communication. Therefore, the
district court did not err in granting brevis disposition on ______
appellant's ingenious collection of First Amendment initiatives.
IV. MISCELLANEOUS CLAIMS IV. MISCELLANEOUS CLAIMS
Appellant makes several additional claims, one under
the Due Process Clause of the United States Constitution, one
intimating, albeit somewhat obliquely, that Article 4 places an
unconstitutional condition on appellant's entertainment license,
one involving overbreadth, and the last under Article 16 of the
Declaration of Rights contained in the Massachusetts
Constitution. These claims lack force.14
A. The Due Process Claim. A. The Due Process Claim. _____________________
Appellant maintains that Dedham did not afford it
procedural due process in adopting Article 4. Its rhetoric rings
hollow.
As an initial matter, we doubt that the concept of
procedural due process is applicable in respect to the
legislative enactment of a generally applicable statute or
ordinance. After all, procedural due process is a doctrine most
closely associated with assuring fairness in regard to the
____________________
14Appellant also hints at a claim under the Takings Clause,
presumably on the theory that Dedham took its "valuable interests
in exhibiting midnight movies" without just compensation.
Appellant's Brief at 45. We do not probe the point for
appellant, by devoting a mere two sentences to the possibility in
its briefs, waived any such claim. See, e.g., Ryan v. Royal Ins. ___ ____ ____ __________
Co., 916 F.2d 731, 734 (1st Cir. 1990) ("It is settled in this ___
circuit that issues adverted to on appeal in a perfunctory
manner, unaccompanied by some developed argumentation, are deemed
to have been abandoned.").
34
enforcement of laws or the administration of programs. In
general, then, the doctrine bears no relation to the initial
enactment of a law. See Laurence H. Tribe, American ___ ________
Constitutional Law 664 (2d ed. 1988). Indeed, the prospect of a ___________________
legislative body being required to afford a panoply of
protections for all persons who might arguably be affected by a
forthcoming statute or ordinance would seem to be a prescription
for parliamentary paralysis.
In reaching this conclusion, we follow guideposts
erected by the Supreme Court. We find particularly instructive
the Court's opinion in Bi-Metallic Inv. Co. v. State Bd. of _____________________ _____________
Equalization, 239 U.S. 441 (1915), a case that arose after the ____________
Colorado Board of Equalization promulgated a county-wide increase
in property valuations for tax purposes. The petitioner there
adopted much the same position that appellant advocates here.
Thus, the Court had to decide "whether all individuals have a
constitutional right to be heard before a matter can be decided
in which all are equally concerned." Id. at 445. Justice ___
Holmes, writing for a unanimous Court, after noting that it was
"hard to believe that the proposition was seriously made," id., ___
rejected the due process requirement hawked by the petitioner:
Where a rule of conduct applies to more than
a few people it is impracticable that
everyone should have a direct voice in its
adoption. . . . General statutes within the
state power are passed that affect the person
or property of individuals, sometimes to the
point of ruin, without giving them a chance
to be heard. Their rights are protected in
the only way that they can be in a complex
society, by their power, immediate or remote,
35
over those who make the rule.
Id. In language that we find appropriate to our case, Justice ___
Holmes concluded: "There must be a limit to individual argument
in such matters if government is to go on." Id. ___
Appellant simply ignores this line of authority. It
concentrates instead on the fact that the by-law curtailed its
licensed exhibition of films, and tries to argue that the
curtailment entitled it to the same due process guarantees as
would have obtained had Dedham revoked its entertainment license
altogether. This is an exercise in sophism that fails for at
least two reasons. In the first place, the by-law did not
constitute a revocation of the license. In the second place, the
record makes manifest that the town afforded appellant both
notice and an opportunity to be heard.
Appellant cites Derby Refining Co. v. Board of ____________________ _________
Aldermen, 555 N.E.2d 584 (Mass. 1990), for the proposition that ________
Dedham could not lawfully enact Article 4 without first according
it a full-scale adjudicatory hearing. Appellant misreads the
opinion. In Derby Refining, the state court held that certain ______________
types of licenses, once issued, "become[] a vested property right
of the licensee, and may be revoked only when due process
protections are complied with." Id. at 722. Assuming for the ___
sake of argument that appellant has a cognizable property
interest in its license to exhibit motion pictures, but cf. ___ ___
Roslindale Motor Sales, Inc. v. Police Comm'r, 538 N.E.2d 312, _____________________________ ______________
314-15 (Mass. 1989) (holding that motor vehicle dealer did not
36
have a property interest in license to deal in used cars), Derby _____
Refining is nonetheless inapposite because the enactment of ________
Article 4 cannot be considered a revocation of that license. __________
Unlike the revocation of a license which results in the total
cessation of previously authorized activities Article 4 does
not snatch away appellant's right to conduct the authorized
activities, but merely cuts back the hours during which those
activities may be undertaken. The entertainment license remains
intact.
Appellant's argument also founders because, in this
instance, the town afforded process equivalent to that which
would have been due at a revocation hearing. The Town Meeting
originally passed Article 40, Article 4's progenitor, in the
spring of 1989. Before putting Article 40 to a vote, town
officials contacted appellant to discuss the residents' concerns.
Various meetings were held. On April 10, Pungitore, the theater
manager, attended the Town Meeting and was given an opportunity
to speak. The desirability of the ban was reconsidered by the
Town Meeting on April 24 for the express purpose of "hear[ing]
the proponents and opponents of [the by-law]," and to "give a
fair chance to the businessmen of the community to put their side
of the story forward." During the ensuing debate, Towey, a
senior officer of National Amusements, spoke at considerable
length against the proposal. Later, after the Attorney General
sidetracked Article 40, appellant received much the same sort of
process in respect to Article 4. For example, Towey attended the
37
November 6, 1989 Town Meeting at which Article 4 was put to a
vote, participated fully in the discourse, and delivered a
lengthy speech urging rejection of Article 4. No more is
exigible.15
B. The "Unconstitutional Condition" Claim. B. The "Unconstitutional Condition" Claim. ______________________________________
To the extent appellant suggests that Article 4 places
an unconstitutional condition on its entertainment license, the
suggestion is without merit. The doctrine of unconstitutional
conditions bars government from arbitrarily conditioning the
grant of a benefit on the surrender of a constitutional right,
regardless of the fact that the government appropriately might
have refused to grant the benefit at all. See generally Kathleen ___ _________
M. Sullivan, Unconstitutional Conditions, 103 Harv. L. Rev. 1413, ___________________________
1415 (1989).
Not all conditions are prohibited, however; if a
condition is germane that is, if the condition is sufficiently
related to the benefit then it may validly be imposed. In the
final analysis, "the legitimacy of a government proposal depends
on the degree of relatedness between the condition on a benefit
and the reasons why government may withhold the benefit
altogether." Id. at 1457 (footnote omitted); see also Posadas de ___ ___ ____ __________
____________________
15Appellant bemoans the lack of particular forensic devices,
such as cross-examination. But even in license revocation
proceedings proper, such accouterments are not constitutionally
required. See, e.g., Chongris v. Board of Appeals, 811 F.2d 36, ___ ____ ________ ________________
41-42 (1st Cir.) (holding that revocation of building permit
without affording applicants an opportunity to cross-question
witnesses is not a denial of procedural due process), cert. _____
denied, 483 U.S. 1021 (1987). ______
38
P.R. Assoc. v. Tourism Co., 478 U.S. 328, 345-46 (1986) ____________ ____________
(upholding Puerto Rico's ban on advertising casino gambling to
Puerto Rico residents because "the greater power to completely
ban casino gambling necessarily includes the lesser power" to
discourage gambling through the prohibition on advertising).
"The more germane a condition to a benefit, the more deferential
the review; nongermane conditions, in contrast, are suspect."
Sullivan, supra, at 1457. _____
In this instance, Article 4 easily satisfies the
requirement of germaneness. Dedham's power to license
entertainment as a means of protecting public health and welfare
is closely related to the core purpose of Article 4, which, as we
have said, is to preserve the nighttime tranquility of the
community. Thus, while the ban on licensed entertainment between
1:00 a.m. and 6:00 a.m. may constitute a condition on appellant's
license, it is germane and, therefore, not an unconstitutional
condition.
C. The Overbreadth Claim. C. The Overbreadth Claim. _____________________
Appellant attempts to recast its "narrow tailoring"
argument, see supra Part III(C)(2), as an overbreadth attack. It ___ _____
charges that Article 4 is overbroad because it curtails all ___
licensed entertainment, including entertainment that does not
produce unwelcome secondary effects. The challenge is baseless.
To be sure, appellant attempts to assert the rights of
others, but neither standing nor principles of jus tertii pose an ___ ______
insuperable obstacle. First Amendment overbreadth doctrine
39
permits "an individual whose own speech or conduct may be
prohibited . . . to challenge a statute on its face because it
also threatens others not before the court those who desire to
engage in legally protected expression but who may refrain from
doing so rather than risk prosecution or undertake to have the
law declared partially invalid." Board of Airport Comm'rs v. _________________________
Jews for Jesus, Inc., 482 U.S. 569, 574 (1987) (internal _______________________
quotation omitted). The Supreme Court has limited the sweep of
the overbreadth doctrine by imposing "[t]he requirement that the
overbreadth be substantial." Id.; see also Broadrick v. ___ ___ ____ _________
Oklahoma, 413 U.S. 601, 615 (1973). Consequently, a "facial" ________
overbreadth challenge will not succeed unless "there [is] a
realistic danger that the statute itself will significantly
compromise recognized First Amendment protections of parties not
before the Court . . . ." Taxpayers for Vincent, 466 U.S. at ______________________
801.
Here, appellant has failed to demonstrate that Article
4 is overbroad, let alone substantially so. Dedham's
preoccupation with licensed entertainment bears a rational
relationship to its stated interests, see supra Part III(B)(1), ___ _____
and appellant has cited no examples of other licensees who have
been harmed by the by-law despite the absence of secondary
effects. That ends the matter. Although Dedham likely would
have created overbreadth concerns had it attempted to ban all ___
First Amendment activity between 1:00 a.m. and 6:00 a.m., cf. ___
Jews For Jesus, 482 U.S. at 570-71, it did not take so bold a _______________
40
step. Rather, Dedham chose a safer path by focusing on those
activities commercial entertainment most likely to result in
late-night disruptions. The claim of invalidity must, therefore,
perish.
D. The State Constitutional Claim. D. The State Constitutional Claim. ______________________________
Appellant's complaint contained a claim that Dedham's
by-law violated the Massachusetts Constitution. In granting
summary judgment, the district court finessed the merits of the
state constitutional claim. The court noted that, in presenting
its arguments, appellant had not drawn any distinction between
the federal and state constitutional claims,16 and ruled,
therefore, that appellant had forfeited any chance to argue that
the Massachusetts Declaration of Rights offers broader freedom-
of-speech protection than the cognate provisions of the First
Amendment. See National Amusements, 846 F. Supp. at 1032 n.12. ___ ___________________
On appeal, appellant concedes that it treated the two
constitutional provisions identically in the court below, and
tells us that it did so in the belief that the federal and state
constitutional protections for freedom of speech were coextensive
as applied to the exhibition of motion pictures. Having had
second thoughts in light of the district court's holding that the
by-law does not offend the First Amendment, appellant invites us
____________________
16Despite the fact that Dedham moved for summary judgment on
all claims, appellant relied almost entirely on federal
precedents in opposing the motion. Indeed, appellant only
mentioned Article 16 once in its memorandum in opposition to
summary judgment, citing it for the uncontroversial point that
movies are a form of protected expression.
41
to consider the omitted argument. We decline the invitation.
The short of it is that appellant's change of heart
comes too late. "It is hornbook law that theories not raised
squarely in the district court cannot be surfaced for the first
time on appeal." McCoy v. Massachusetts Inst. of Technology, 950 _____ _________________________________
F.2d 13, 22 (1st Cir. 1991) (collecting cases), cert. denied, 112 _____ ______
S. Ct. 1939 (1992). We see no reason to depart from this
prudential rule in the circumstances at bar. Given the way in
which appellant elected to present its case below, Judge Young
acted appropriately in assuming, for purposes of his decision,
that the freedom-of-speech protections found in the two
constitutions were coterminous. Hence, the disputed ruling must
be upheld. See Mesnick, 950 F.2d at 829 n.11 (holding that a ___ _______
plaintiff whose complaint contained parallel claims under federal
and state antidiscrimination statutes, but who relied exclusively
on federal precedent in unsuccessfully opposing summary judgment,
could not argue on appeal that state law was more favorably
disposed to his claims).
V. CONCLUSION V. CONCLUSION
We need go no further.17 For the reasons discussed
above, we hold that Dedham's by-law, prohibiting the exhibition
of motion pictures at the town's only theater between the hours
of 1:00 a.m. and 6:00 a.m., passes First Amendment muster. In
the bargain, it also survives appellant's other challenges.
____________________
17To the extent appellant has raised or alluded to other
grounds for appeal, we reject them by this reference. None
requires comment.
42
Accordingly, the order of the district court granting summary
judgment in the town's favor must be
Affirmed. ________
43
Related
Bi-Metallic Investment Co. v. State Board of Equalization
239 U.S. 441 (Supreme Court, 1915)
Broadrick v. Oklahoma
413 U.S. 601 (Supreme Court, 1973)
Washington v. Davis
426 U.S. 229 (Supreme Court, 1976)
Village of Arlington Heights v. Metropolitan Housing Development Corp.
429 U.S. 252 (Supreme Court, 1977)
Carey v. Brown
447 U.S. 455 (Supreme Court, 1980)
Consolidated Edison Co. of New York v. Public Service Commission
447 U.S. 530 (Supreme Court, 1980)
Schad v. Borough of Mount Ephraim
452 U.S. 61 (Supreme Court, 1981)
Widmar v. Vincent
454 U.S. 263 (Supreme Court, 1981)
Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue
460 U.S. 575 (Supreme Court, 1983)
Members of the City Council of Los Angeles v. Taxpayers for Vincent
466 U.S. 789 (Supreme Court, 1984)
Clark v. Community for Creative Non-Violence
468 U.S. 288 (Supreme Court, 1984)
City of Renton v. Playtime Theatres, Inc.
475 U.S. 41 (Supreme Court, 1986)
Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corporation
475 U.S. 574 (Supreme Court, 1986)
Anderson v. Liberty Lobby, Inc.
477 U.S. 242 (Supreme Court, 1986)
Celotex Corp. v. Catrett, Administratrix of the Estate of Catrett
477 U.S. 317 (Supreme Court, 1986)
Posadas De Puerto Rico Associates v. Tourism Co. of Puerto Rico
478 U.S. 328 (Supreme Court, 1986)
Arkansas Writers' Project, Inc. v. Ragland
481 U.S. 221 (Supreme Court, 1987)
Board of Airport Comm'rs of Los Angeles v. Jews for Jesus, Inc.
482 U.S. 569 (Supreme Court, 1987)
Ward v. Rock Against Racism
491 U.S. 781 (Supreme Court, 1989)
Leathers v. Medlock
499 U.S. 439 (Supreme Court, 1991)
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