152 F.3d 362 (5th Cir. 1998), 96-60865, J & B Entertainment, Inc. v. City of Jackson, Miss.

Docket Nº:96-60865.
Citation:152 F.3d 362
Party Name:J&B ENTERTAINMENT, INC., Plaintiff-Appellant, v. CITY OF JACKSON, MISSISSIPPI, Defendant-Appellee.
Case Date:August 21, 1998
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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152 F.3d 362 (5th Cir. 1998)

J&B ENTERTAINMENT, INC., Plaintiff-Appellant,



No. 96-60865.

United States Court of Appeals, Fifth Circuit

August 21, 1998

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[Copyrighted Material Omitted]

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Cynthia Ann Stewart, Royals & Associates, Jackson, MS, for Plaintiff-Appellant.

Hugh Wilton Tedder, Jr., William Alexander Gowan, Jr., Jackson, MS, for Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before WIENER, EMILIO M. GARZA and BENAVIDES, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

The City of Jackson ("the City" or "Jackson") enacted an ordinance banning public nudity, with certain exceptions ("the Ordinance"). J&B Entertainment, Inc. ("J&B"), 1

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the operator of a club featuring live female nude dancing, brought suit challenging the constitutionality of the Ordinance and seeking declaratory and injunctive relief. J&B filed a motion for summary judgment, which the district court denied, instead granting summary judgment in favor of the City. J&B appealed and, on the skeletal record now before us, we vacate the district court's grant of summary judgment in favor of the City on factual grounds and remand with instructions. We affirm the district court's denial of J&B's summary judgment motion as a matter of law.


In February 1995, J&B opened Legends Cabaret, a club featuring live female nude dancing. Jackson enacted the Ordinance the following month. The Ordinance prohibits persons physically present in public places from knowingly or intentionally: (1) engaging in sexual intercourse; (2) appearing in a state of nudity; or (3) fondling the genitals of himself, herself, or another person. 2 "Nudity" is defined as "the showing of the human genitals, anus, or the female nipple." Persons "engaged in expressing a matter of serious literary, artistic, scientific or political value," are excepted from the Ordinance's reach ("the exception"). Supervisors, managers, owners, and employers of a person who appears in a state of nudity may be guilty of a misdemeanor. Preambulatory clauses to the Ordinance provide that the City enacted the Ordinance because of its interests in protecting order and morality and in combating secondary effects associated with public nudity. The record before us, however, does not indicate whether the City considered any studies on secondary effects prior to enacting the Ordinance.

After J&B brought an action challenging the constitutionality of the Ordinance, the district court directed both parties to submit motions for summary judgment. Although J&B submitted a motion for summary judgment, the City did not. 3 Although no evidence in the record specified what specific secondary effects may have motivated the City to enact the Ordinance, the district court then issued an order denying J&B's summary judgment motion and granting summary judgment in favor of the City. 4 As applied to J&B, the court found the Ordinance constitutional under the Supreme Court's decision in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), and rejected J&B's as applied and facial vagueness and overbreadth arguments. The district court also rejected J&B's challenges to the Ordinance under state law. J&B's timely appeal followed.


We review the grant of summary judgment de novo, taking the facts in the light most favorable to the nonmovant below. See New York Life Ins. Co. v. Travelers Ins. Co., 92 F.3d 336, 338 (5th Cir.1996). District court determinations of state law are also reviewed de novo. See Salve Regina College v. Russell, 499 U.S. 225, 239, 111 S.Ct. 1217, 1221, 113 L.Ed.2d 190 (1991). Summary judgment is appropriate where the record discloses "that there is no genuine issue of material fact and that the moving party is

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entitled to a judgment as a matter of law." FED. R. C IV. P. 56(c).


We turn our attention first to the challenges that J & B brings against the Ordinance on overbreadth and vagueness grounds, both as applied and facially. "The overbreadth and vagueness doctrines are related yet distinct." American Booksellers v. Webb, 919 F.2d 1493, 1505 (11th Cir.1990). The vagueness doctrine protects individuals from laws lacking sufficient clarity of purpose or precision in drafting. See Erznoznik v. City of Jacksonville, 422 U.S. 205, 217-18, 95 S.Ct. 2268, 2276-77, 45 L.Ed.2d 125 (1975). "Overbroad legislation need not be vague, indeed it may be too clear; its constitutional infirmity is that it sweeps protected activity within its proscription." M.S. News Co. v. Casado, 721 F.2d 1281, 1287 (10th Cir.1983).


J&B posits that the Ordinance is facially overbroad because it infringes upon protected First Amendment conduct. In the district court, J&B conceded that the City removed much, though not all, of the possible overbreadth through the exception's exemption of persons "engaged in expressing a matter of serious literary, artistic, scientific or political value."

Persons to whom a statute may be constitutionally applied normally lack standing to argue that a statute is unconstitutional if applied to persons or situations not before the court. See Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S.Ct. 2908, 2915, 37 L.Ed.2d 830 (1973). Standing requirements in the First Amendment context, however, are relaxed "because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Id. at 612, 93 S.Ct. at 2916; see also Board of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S.Ct. 2568, 2572, 96 L.Ed.2d 500 (1987). Standing to bring a facial overbreadth claim, however, is extremely limited:

[T]he plain import of our cases is, at the very least, that facial overbreadth adjudication is an exception to our traditional rules of practice and that its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conduct--even if expressive--falls within the scope of otherwise valid criminal laws that reflect legitimate state interests in maintaining comprehensive controls over harmful, constitutionally unprotected conduct ... where conduct and not merely speech is involved, we believe that the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.

Broadrick, 413 U.S. at 615, 93 S.Ct. at 2917-18.

After carefully considering the arguments that J&B advances, we find that the Ordinance's alleged overbreadth, when compared to its plainly legitimate sweep, is neither real nor substantial. J&B hypothesizes that the Ordinance may be overbroad because it infringes upon many forms of expression protected by the First Amendment: "the New Stage Theatre in Jackson perform[ing] a production of Hair," "nude infant babies in public," "a woman breast feed[ing] in the park," "a nude political debate in the streets of Jackson," and "John Grisham read[ing] one of his books in the nude." Nude infants and women breast feeding in a park are not protected by the First Amendment because they are not engaged in expressing any idea. 5 Cf. Barnes, 501 U.S. at 571, 111 S.Ct. at 2463 (explaining that the First Amendment does not protect nude sunbathers); City of Dallas v. Stanglin, 490 U.S. 19, 25, 109 S.Ct. 1591, 1595, 104 L.Ed.2d 18 (1989) ("It is possible to find some kernel of expression in almost every activity a person undertakes--for example, walking down the

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street or meeting one's friends at a shopping mall--but such a kernel is not sufficient to bring the activity within the protection of the First Amendment."); Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th Cir.1995)(rejecting overbreadth argument because topless bar patrons do not have a protected First Amendment right to touch nude dancers). If John Grisham reads one of his novels in the nude or the New Stage Theatre stages a production of "Hair," courts can evaluate whether these activities fall within the scope of the exception. See Broadrick, 413 U.S. at 615-16, 93 S.Ct. at 2918 ("[W]hatever overbreadth may exist should be cured through case-by-case analysis of the fact situations to which its sanctions, assertedly, may not be applied."); Miller v. California, 413 U.S. 15, 25, 93 S.Ct. 2607, 2615, 37 L.Ed.2d 419 (1973) ("[T]he First Amendment values applicable to the States through the Fourteenth Amendment are adequately protected by the ultimate power of appellate courts to conduct an independent review of constitutional claims when necessary."). Therefore, although hypothetical examples in which the Ordinance may be overbroad can be imagined, these examples, in comparison to its legitimate sweep, are not substantial. See Broadrick, 413 U.S. at 615, 93 S.Ct. at 2918.

Other considerations strengthen our conclusion that the Ordinance is not substantially overbroad. The Supreme Court has rejected a facial overbreadth challenge to an Ohio statute criminalizing the possession of child pornography containing an exception similar to that found in the Ordinance because the exception in that statute removed any substantial overbreadth. See Osborne v. Ohio, 495 U.S. 103, 112 n. 9, 110 S.Ct. 1691, 1698 n. 9, 109 L.Ed.2d 98 (1990). Moreover, "[a]pplication of the overbreadth doctrine ... is, manifestly, strong medicine. It has been employed only by the Court sparingly and only as a last resort." Broadrick, 413 U.S. at 613, 93 S.Ct. at 2916. Because the Ordinance is not substantially overbroad, any remaining ambiguities can be clarified in future cases. See Young v...

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