Friends of George's, Inc. v. Mulroy

108 F.4th 431

FRIENDS OF GEORGE'S, INC., Plaintiff - Appellee, v. Steven J. MULROY, in his official and individual capacities as theDistrict Attorney General of Shelby County, Tennessee, Defendant-Appellant,Blount Pride, Inc.; Matthew Lovegood, Intervenors.

No. 23-5611

United States Court of Appeals, Sixth Circuit

Argued: February 1, 2024

Decided and Filed: July 18, 2024

Appeal from the United States District Court for the Western District of Tennessee at Memphis. No. 2:23-cv-02163—Thomas L. Parker, District Judge.

ARGUED: J. Matthew Rice, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Melissa J. Stewart, Brice M. Timmons, DONATI LAW, PLLC, Memphis, Tennessee, for Appellee. ON BRIEF: J. Matthew Rice, James R. Newsom III, Robert W. Wilson, OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellant. Melissa J. Stewart, Brice M. Timmons, Craig A. Edington, DONATI LAW, PLLC, Memphis, Tennessee, for Appellee. Daniel A. Horwitz, HORWITZ LAW, PLLC, Nashville, Tennessee, for Intervenors. Thomas T. Hydrick, OFFICE OF THE ATTORNEY GENERAL OF SOUTH CAROLINA, Columbia, South Carolina, Gene P. Hamilton, AMERICA FIRST LEGAL FOUNDATION, Jonathan F. Mitchell, MITCHELL LAW PLLC, Austin, Texas, Christina A. Jump, CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA, Richardson, Texas, Bruce E.H. Johnson, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, for Amici Curiae.

Before: SILER, NALBANDIAN, and MATHIS, Circuit Judges.

NALBANDIAN, J., delivered the opinion of the court in which SILER, J., joined. MATHIS, J. (pp. 441-58), delivered a separate dissenting opinion.

OPINION

NALBANDIAN, Circuit Judge.

Tennessee's Adult Entertainment Act (AEA) makes it an offense to perform adult cabaret entertainment in public or in the potential presence of minors. Friends of George's (FOG), a theater organization that performs drag shows, challenged the AEA as facially unconstitutional. The district court agreed, declaring the AEA unconstitutional in its entirety and permanently enjoining District Attorney General Steven Mulroy from enforcing it anywhere within his jurisdiction (Shelby County, Tennessee). Mulroy now appeals, challenging both FOG's Article III standing and the merits of the injunction. FOG did not meet its burden to show standing, so we REVERSE and REMAND with instructions to DISMISS.

I.

In 2023, the Tennessee General Assembly passed the Adult Entertainment Act (AEA), which makes it an offense "to perform adult cabaret entertainment: (A) On public property; or (B) In a location where the adult cabaret entertainment could be viewed by a person who is not an adult." Tenn. Code Ann. § 7-51-1407(c)(1) (2023). Although the term "adult cabaret entertainment" is new to Tennessee law, the legislature defined that statutory phrase by reference to existing Tennessee law.

"Adult cabaret entertainment" is defined as "adult-oriented performances that are harmful to minors, as that term is defined in § 39-17-901, and that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers." Tenn. Code Ann. § 7-51-1401(3)(A) (2023). By its explicit reference to § 39-17-901, the text incorporates the following definition of "harmful to minors":

that quality of any description or representation, in whatever form, of nudity, sexual excitement, sexual conduct, excess violence or sadomasochistic abuse when the matter or performance:

(A) Would be found by the average person applying contemporary community standards to appeal predominantly to the prurient, shameful or morbid interests of minors;

(B) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable for minors; and (C) Taken as whole lacks serious literary, artistic, political or scientific values for minors.

Tenn. Code Ann. § 39-17-901(6) (2023). So the new law prevents children from viewing adult performances.

This definition has existed in the Tennessee Code for decades, see, e.g., 1990 Tenn. Pub. Acts 938 (including an identical definition), and the Supreme Court of Tennessee has interpreted it to refer "only to those materials which lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor." Davis-Kidd Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 522-23, 528 (Tenn. 1993) (emphasis added) (interpreting identical language from Tenn. Code Ann. § 39-17-901(6) (1991)). Additionally, the second component to "adult cabaret entertainment" copies verbatim from a longstanding definition of "[a]dult cabaret." See 1987 Tenn. Pub. Acts 842 (" 'Adult cabaret' means a cabaret which features topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers." (emphasis added)).

Friends of George's (FOG) is an organization that aims to "provide a space outside of bars and clubs where people can enjoy drag shows." Friends of Georges, Inc. v. Mulroy, 675 F. Supp. 3d 831, 843 (W.D. Tenn. 2023) (internal quotation marks omitted). It tries "to stick around the PG-13 area in writing," rather than get "too risqué." R. 81, Trial Tr., p. 30, PageID 1071. And FOG describes its drag shows as an "art form," id. at 23, PageID 1064, an art form it likened to "William Shakespeare's plays" and "Ancient Greek theatrical productions," R. 35, FOG Trial Br., p. 3, PageID 489. Even though FOG has never performed "a script play" or any of its "pre-scripted productions" on public property, R. 81, p. 69, PageID 1110, it sells tickets to its shows without distinguishing between adults or minors. FOG says that although its shows do not contain sexual acts, they contain descriptions and representations of sexual conduct that law enforcement might think violates the AEA.

So on March 27, 2023, FOG sought an injunction to prohibit enforcement of the AEA, arguing that the statute violates its First Amendment rights.¹ The district court granted FOG a temporary restraining order on March 31, the day before the AEA was scheduled to take effect. Declining to apply Davis-Kidd's narrowing construction because it would "rewrite the AEA," the district court held that (1) FOG had standing and (2) the AEA violates the First Amendment and is unconstitutionally vague, permanently enjoining Mulroy from enforcing the statute anywhere within his jurisdiction (Shelby County, Tennessee). Friends of Georges, 675 F. Supp. 3d at 878-79.

Mulroy now appeals, arguing that (1) FOG lacks Article III standing, (2) the AEA is constitutional, and (3) even if the AEA were unconstitutional, the district court's injunction was overbroad.

II.

We review standing and legal conclusions de novo. Sullivan v. Benningfield, 920 F.3d 401, 407 (6th Cir. 2019); Atkins v. Parker, 972 F.3d 734, 739 (6th Cir. 2020). To establish Article III standing, a "plaintiff must show (1) an injury in fact, (2) fairly traceable to the challenged conduct of the defendant, (3) that is likely to be redressed by the requested relief." FEC v. Cruz, 596 U.S. 289, 296, 142 S.Ct. 1638, 212 L.Ed.2d 654 (2022) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992)).

Typically "an injury" in this context requires that the government enforce the allegedly unconstitutional law against the challenging party before it has standing to sue. But we have recognized that in some circumstances, standing "can derive from an imminent, rather than an actual, injury, but only when 'the threatened injury is real, immediate, and direct.' " Crawford v. U.S. Dep't of the Treasury, 868 F.3d 438, 454 (6th Cir. 2017) (quoting Davis v. FEC, 554 U.S. 724, 734, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008)). Thus, we have permitted pre-enforcement review, but only when the plaintiff (1) "alleges 'an intention to engage in a course of conduct arguably affected with a constitutional interest,' " (2) that the challenged statute proscribes, Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159, 134 S.Ct. 2334, 189 L.Ed.2d 246 (2014) (quoting Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)), and (3) the plaintiff's intention generates a "certainly impending" threat of prosecution, Crawford, 868 F.3d at 454 (quoting Clapper v. Amnesty Int'l USA, 568 U.S. 398, 409, 133 S.Ct. 1138, 185 L.Ed.2d 264 (2013)).

A.

To determine whether FOG intends to engage in a course of conduct that the AEA arguably proscribes, Susan B. Anthony List, 573 U.S. at 159, 134 S.Ct. 2334, we must first figure out what the AEA proscribes, id. at 162, 134 S.Ct. 2334 (discussing the broad sweep of the Ohio law at issue). Once we account for the history of the relevant provisions as well as the relevant caselaw, that task is relatively straightforward.

The AEA makes it an offense to perform "adult cabaret entertainment" on public property or anywhere it could be viewed by a minor. § 7-51-1407(c)(1). This targets "adult-oriented performances that are harmful to minors . . . that feature topless dancers, go-go dancers, exotic dancers, strippers, male or female impersonators, or similar entertainers." § 7-51-1401(3)(A). And "harmful to minors" expressly incorporates a longstanding definition under Tennessee law, which focuses on whether a performance has "serious literary, artistic, political or scientific values for minors." § 39-17-901(6) (emphasis added).

As we noted above, the Supreme Court of Tennessee has interpreted "harmful to minors" before, limiting it "only to those materials which lack serious literary, artistic, political, or scientific value for a reasonable 17-year-old minor." Davis-Kidd, 866 S.W.2d at 522-23, 528 (emphasis added) (interpreting identical language from Tenn. Code Ann. § 39-17-901(6) (1991)).

The district court, however, declined to apply Davis-Kidd's interpretation of "harmful to minors" to the AEA, calling it "an atextual construction" and reading the standard to require value "for children as young as four or five."...