Sob, Inc. v. County of Benton

Page 856

317 F.3d 856

SOB, INC., et al., Plaintiffs-Appellants/Cross Appellees, v. COUNTY OF BENTON, Defendant-Appellee/Cross Appellant.

No. 01-3928.

No. 01-4022.

United States Court of Appeals, Eighth Circuit.

Submitted: October 10, 2002.

Filed: January 24, 2003.

Rehearing and Rehearing En Banc Denied: February 27, 2003.

COPYRIGHT MATERIAL OMITTED

Randall D.B. Tigue, argued, Minneapolis, MN, for appellant/cross-appellee.

Scott T. Anderson, argued, Minneapolis, MN (Amy E. Mace, on the brief), for appellee/cross-appellant.

Before LOKEN, BEAM, and MELLOY, Circuit Judges.

LOKEN, Circuit Judge.

The primary issue in this case is whether Benton County, Minnesota, violated the First Amendment by enacting an ordinance prohibiting live nude dancing entertainment when there was evidence presented to the County Commissioners suggesting that existing adult entertainment establishments had not adversely affected nearby property values or crime rates. The issue is surprisingly complex because it lies at the intersection of two related but distinct lines of Supreme Court First Amendment decisions.

After SOB, Inc. opened Sugar Daddy's, an alcohol-free cabaret featuring live nude dancing, the Benton County Board of Commissioners enacted Ordinance 332 ("the Ordinance") generally prohibiting "public indecency":

Public Indecency Prohibited. A person, who knowingly or intentionally in a public setting or place:

A. appears in a state of nudity;

B. fondles the genitals of himself or herself, or

C. fondles the genitals of another person;

commits public indecency and is guilty of a misdemeanor under Minnesota law and upon conviction thereof, shall be punished by a fine of up to $1,000 or by imprisonment for up to 90 days, or both.

The Ordinance compelled Sugar Daddy's female dancers to cover their breasts and genitals with pasties and G-strings while performing. SOB, Inc. and three dancers (collectively, "Sugar Daddy's") commenced this action to declare the Ordinance overbroad and contrary to their protected First Amendment interests in live nude dancing and to enjoin its enforcement. Sugar Daddy's manager, Mark Van Gelder, and his wife joined as plaintiffs and asserted a claim that another aspect of the Ordinance violates their due process, equal protection, and privacy rights.

After consolidating plaintiffs' motion for a preliminary injunction with the trial on the merits, the district court held that the Ordinance is constitutional, but the court enjoined the County from enforcing it "by means of custodial arrest." S.O.B., Inc. v. County of Benton, 171 F.Supp.2d 978 (D.Minn.2001). Both sides appeal this final order. We affirm the district court's decision except we vacate the injunction against custodial arrest.

I. The Public Nudity Prohibition.

Non-obscene erotic and sexually explicit speech are entitled to some First Amendment protection. But businesses that market sexually explicit speech and expressive conduct may be regulated to the extent their activities are perceived as having adverse social and economic effects on society. For example, a law prohibiting the sale of sexually oriented materials to minors was upheld against a First Amendment challenge in Ginsberg v. New York, 390 U.S. 629, 634, 640-42, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). More recently, the Supreme Court has considered First Amendment challenges to two different kinds of regulatory action taken by local governments to attack the perceived negative effects of non-obscene adult entertainment: the use of traditional urban zoning strategies to restrict the time, place, and manner in which adult entertainment may be marketed, and the use of traditional public indecency statutes to prohibit certain types of sexually expressive conduct. These recent decisions govern our resolution of this appeal.

Zoning issues reached the Supreme Court first. It is now well-established that sexually oriented businesses may be subjected to reasonable time, place, and manner restrictions based upon the nature of the products or services they sell, even though those products and services include an expressive content protected by the First Amendment. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theatres, Inc., 427 U.S. 50, 62-63, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Under Renton, state and local governments may use diverse zoning strategies (for example, either dispersal or concentration) to regulate adverse secondary effects of such businesses such as crime, prostitution, and economic blight. The regulation must be "content neutral" to avoid strict First Amendment scrutiny. But content-neutral in this context means simply that the regulation is justified by the legitimate government purpose of reducing or eliminating adverse secondary effects. 475 U.S. at 47-50, 106 S.Ct. 925. If a zoning regulation is content-neutral in this sense, it will withstand First Amendment scrutiny "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses" and the regulation allows for reasonable alternative avenues for communication. Id. at 51-52, 106 S.Ct. 925.

This case involves the second type of regulation, use of a public indecency ordinance to totally prohibit live nude dancing. Public indecency, including nudity, was a crime at common law, and public indecency statutes are clearly within the police power of state and local governments. A First Amendment challenge to this type of regulation first reached the Supreme Court in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). The Court upheld the application of Indiana's long-standing public indecency statute to prohibit live nude dancing as entertainment, but no five Justices agreed on a single rationale for that conclusion. Noting that nude dancing is expressive conduct, not pure speech, four Justices applied the four-part test in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), for judging government action restricting conduct that includes both speech and non-speech elements:

[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Applying this test, the Chief Justice, Justice O'Connor, and Justice Kennedy considered Indiana's prohibition of live nude dancing sufficiently justified by the traditional police power to protect morals and public order. Barnes, 501 U.S. at 569, 111 S.Ct. 2456. Justice Souter, on the other hand, applied the O'Brien test but looked to Renton for relevant precedent and concluded that the prohibition was justified by "the State's substantial interest in combating the secondary effects of adult entertainment establishments." Id. at 582, 111 S.Ct. 2456. (Justice Scalia, the fifth member of the Barnes majority, concluded that live nude dancing is conduct unprotected by the First Amendment. The four dissenters concluded that the prohibition was the suppression of protected erotic dancing and could not survive First Amendment strict scrutiny.)

The Court again took up this issue in City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). A larger majority again upheld application of an ordinance generally prohibiting public nudity to ban live nude dancing. A four-Justice plurality (Justice O'Connor, joined by the Chief Justice, Justice Kennedy, and Justice Breyer), now agreeing with Justice Souter that the adverse secondary effects analysis of Renton was the proper analytical framework, concluded that the government had a sufficient interest in regulating this sexually explicit conduct because:

there is nothing objectionable about a city passing a general ordinance to ban public nudity (even though such a ban may place incidental burdens on some protected speech) and at the same time recognizing that one specific occurrence of public nudity — nude erotic dancing — is particularly problematic because it produces harmful secondary effects.

529 U.S. at 295, 120 S.Ct. 1382. The plurality then concluded that the City of Erie ordinance passed muster under the four-part O'Brien test because:

[t]he ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message.

Id. at 301, 120 S.Ct. 1382. Justice Souter dissented in part, agreeing with the plurality's analytical approach but voting to remand because the City of Erie had not made an evidentiary record supporting its claim of adverse secondary effects. (Justice Scalia, joined by Justice Thomas, concurred, adhering to his approach in Barnes: "The traditional power of government to foster good morals[,] ... and the acceptability of the traditional judgment (if Erie wishes to endorse it) that nude public dancing itself is immoral, have not been repealed by the First Amendment." 529 U.S. at 310, 120 S.Ct. 1382. Justice Stevens and Justice Ginsburg dissented, adhering to the position of the dissenters in Barnes and criticizing the majority for extending Renton's adverse secondary effects analysis to the absolute prohibition of live nude dancing.)

The final relevant Supreme Court precedent is another zoning case, the Court's very recent decision in City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). Alameda Books probed the evidentiary parameters of the Renton test, considering...