Salem Inn, Inc. v. Frank

• Decision Date: 28 August 1975
• Docket Number: D,No. 965,965
• Citation: 522 F.2d 1045
• Court: U.S. Court of Appeals — Second Circuit
• Parties: SALEM INN, INC., and M & L Rest. Inc., Appellees, v. Louis J. FRANK, Individually and as Police Commissioner of Nassau County, et al., Appellants. ocket 75-7101.

Page 1045

522 F.2d 1045

SALEM INN, INC., and M & L Rest. Inc., Appellees, v. Louis J. FRANK, Individually and as Police Commissioner of Nassau County, et al., Appellants.

No. 965, Docket 75-7101.

United States Court of Appeals Second Circuit.

Argued June 9, 1975.

Decided Aug. 28, 1975.

Joseph H. Darago, New Hyde Park, N. Y. (Francis F. Doran, Town Atty. of Town of North Hempstead, Manhasset, N. Y., of counsel), for appellant.

Herbert S. Kassner, Kassner & Detsky, New York City, for appellee.

Before FEINBERG, OAKES and VAN GRAAFEILAND, Circuit Judges.

OAKES, Circuit Judge:

The Town of North Hempstead, New York, has had several problems in its efforts to suppress "topless" dancing. The Town originally adopted an ordinance banning such dancing in "any public place." A preliminary injunction issued to prevent enforcement of the ordinance, and the injunction was upheld both by our court, Salem Inn, Inc. v. Frank, 501 F.2d 18 (2d Cir. 1974), and by the Supreme Court in Doran v. Salem Inn, Inc., --- U.S. ---, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). A month after our court's decision North Hempstead abandoned its first ordinance in favor of a narrower regulation which has also been challenged and is here in issue. ¹

The Town appears to have, either as inhabitants or visitors, a substantial number of people who will patronize bars which provide "topless" entertainment but will not do so if the breasts of the female professional dancers furnishing that entertainment are covered even by bikini tops. ² The Town is not concerned in its efforts to regulate this situation with obscenity or lewdness, ³ the mere public or open display of nudity, ⁴ the morals of minors, ⁵ or topless or even bottomless displays of the anatomy in an opera house, theater, playhouse or concert hall, ballet or movie. ⁶ Rather, the concern of the local government is with the conduct of the owners and operators of places serving either food or alcoholic beverages and, indirectly but perhaps more accurately, with the morals ⁷ of their adult customers.

The ordinance now in issue was enacted in an effort to cure the unconstitutional overbreadth of North Hempstead's Local Law No. 1, found in Salem Inn, Inc. v. Frank, supra (affirmed in parts here relevant by Doran v. Salem Inn, Inc., supra ). By banning topless dancing only in every "cabaret, bar or lounge, dance hall, discotheque, restaurant or coffee shop within the Town of North Hempstead," the Town's aim was to narrow the broad reach of the ordinance sufficiently to meet constitutional muster. Judge John R. Bartels, of the United States District Court for the Eastern District of New York, held, first in issuing a temporary injunction and then in an order granting summary judgment and a permanent injunction, that the revised ordinance was still subject to the constitutional vice of First Amendment overbreadth since its sweep includes "communicative dancing and theatrical products," its thrust relating only to Nudity, not Obscenity. Judge Bartels also considered the ordinance to be in violation of the equal protection clause of the Fourteenth Amendment because, E. g., burlesque theaters might operate legally while a cabaret could not stage a production of "Hair." Judge Bartels found that the ordinance was not justified as an exercise of delegated Twenty-first Amendment state power, first because there is not involved the kind of conduct properly subject to regulation as a phase of liquor-licensing, See California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972) ("Bacchanalian revelries," sexual contact between entertainers and customers, prostitution), ⁸ and second because the instant ordinance applies to places Not serving alcoholic beverages such as coffee shops, restaurants, dance halls and discotheques. ⁹ We agree with Judge Bartels in all respects and accordingly affirm. ¹⁰

On the sweep of the ordinance, we recognize that there is only a modicum of expression involved in the conduct of appellees' dancers. But that modicum is one of constitutional significance, both to the dancers who earn a livelihood by providing their particular form of entertainment, and, perhaps more, to the customers of the appellees' establishments who for a variety of reasons, which may include the lack of economic means or mere differences in inclination, choose not to avail themselves of diversions deemed more tasteful or culturally rewarding by others. ¹¹ As we said in Salem Inn, Inc. v. Frank, 501 F.2d at 21, n.3:

(W)hile the entertainment afforded by a nude ballet at Lincoln Center to those who can pay the price may differ vastly in content (as viewed by judges) or in quality (as viewed by critics), it may not differ in substance from the dance viewed by the person who, having worked overtime for the necessary wherewithal, wants some "entertainment" with his beer or shot of rye.

Judge Bartels correctly divined our meaning by this that, however much topless dancing may be regarded by some to be in the teeth of good taste, it is, on the record here, a harmless form of diversion or entertainment, by way of communication from one human being to others. That interchange of communication is subject to constitutional protection so long as some legitimate interest of the State (or community) or others is not infringed upon. ¹²

The ordinance here is really directed at the display of the partially nude female form in a place which no minor can enter (under the undisputed allegations below) and no adult who is offended by the sight, or the thought, of commercial exploitation of the human body need enter (since advertising outside the establishment indicates what the entertainment will be). Here more readily even than in Erznoznik v. City of Jacksonville, --- U.S. ---, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (public traveling past outdoor drive-in theater), the adult who would be offended may "avoid further bombardment of (his) sensibilities simply by averting (his) eyes." Cohen v. California, 403 U.S. 15, 21, 91 S.Ct. 1780, 1786, 29 L.Ed.2d 284 (1971), Quoted in Erznoznik v. City of Jacksonville, --- U.S. at ---, 95 S.Ct. at 2273. Appellees, like the movie theater proprietors in Erznoznik, operate a commercial enterprise ¹³ and while "(m)uch that we encounter offends our esthetic, if not our political and moral, sensibilities," Id., "when the government, acting as censor, undertakes selectively to shield the public from some kinds of (expression) on the ground that they are more offensive than others, the First Amendment strictly limits its power." Id. We reemphasize that the ordinance here is directed not at lewdness or obscenity but at nudity which, the Court has reminded us, is not per se "obscene even as to minors." Id. at ---, 95 S.Ct. at 2275.

On the equal protection point the Town urges that the rational relationship test of Reed v. Reed, 404 U.S. 71, 92 S.Ct. 251, 30 L.Ed.2d 225 (1971), is applicable, Cf. Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), because the ordinance was directed at nudity, not at the right of expression. Even if this argument were correct the ordinance would fall because the Town has failed to show any legitimate underlying municipal interest to which its discrimination among various commercial establishments can be rationally related. See Doran v. Salem Inn, Inc., --- U.S. at ---, 95 S.Ct. 2561. Accordingly, even under the limited scrutiny of Reed the ordinance cannot be upheld. We agree with Judge Bartels, however, that the modicum of expression involved in topless dancing puts this case into the other "tier" of equal protection, where "strict scrutiny" of the ordinance must be made. Since the Town has shown no compelling justification for differentiating between one interest in expression (topless dancing in a bar) and another (topless dancing in the "legitimate" theater), the burden on the interests of expression implicit in the commercial distinctions in this ordinance makes the Town's scheme constitutionally impermissible. Shapiro v. Thompson, 394 U.S. 618, 89 S.Ct. 1322, 22 L.Ed.2d 600 (1968). If the Town is between the Scylla of overbreadth and the Charybdis of unequal protection, this is because it is attempting to regulate matters which the First Amendment leaves to personal choice.

Finally, to the extent that the ordinance in its preamble ¹⁴ or the Town in its brief relies upon the suggestion in Doran v. Salem Inn, Inc.,supra, that the Twenty-first Amendment may validate the ordinance, See note 9 Supra, we agree with Judge Bartels that the ordinance was not adequately limited in its impact. The Twenty-first Amendment does not justify regulatory control over places that serve only food or which provide entertainment but not alcoholic beverages.

Judgment affirmed.

1 We will not comment on the subject of mootness before the Supreme Court in Doran v. Salem Inn, Inc., --- U.S. ---, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975).

Chapter 11 of the Code of the Town of North Hempstead §§ 3.1 and 3.2 now provides as follows:

3.1 It shall be unlawful for any person maintaining, owning or operating a cabaret, bar or lounge, dance hall, discotheque, restaurant or coffee shop within the Town of North Hempstead:

a. to suffer or permit any waitress, barmaid, female entertainer or other female person in the employ thereof who appears before or deals with the public in attendance therein to appear in such manner that the portion of her breast below the top of the areola is not covered with a fully opaque cover or that one or both breasts are wholly exposed to view.

b. to suffer or permit any person in the employ thereof who appears before or deals with the public in attendance therein to appear in such manner as to actually display or simulate the display of the pubic hair, anus, vulva or genitals.

3.2a It shall be unlawful for any female person to appear in any cabaret, bar or lounge, dance hall, discotheque, restaurant or coffee shop within the Town...