Entertainment Productions, Inc. v. Shelby County

• Decision Date: 23 April 2008
• Docket Number: No. 08-2047.,08-2047.
• Citation: 545 F.Supp.2d 734
• Parties: ENTERTAINMENT PRODUCTIONS, INC., a Tennessee Corporation, d/b/a Christie's Cabaret, et al., Plaintiffs, v. SHELBY COUNTY, et al., Defendants.
• Court: U.S. District Court — Western District of Tennessee

545 F.Supp.2d 734

ENTERTAINMENT PRODUCTIONS, INC., a Tennessee Corporation, d/b/a Christie's Cabaret, et al., Plaintiffs, v. SHELBY COUNTY, et al., Defendants.

No. 08-2047.

United States District Court, W.D. Tennessee, Western Division.

April 23, 2008.

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Edward M. Bearman, Gary E. Veazey, Johnson Grusin Kee & Surprise, Rex L. Brasher, Jr., Brown Brasher & Smith, Memphis, TN, J. Michael Murray, Raymond V. Vasvari, Jr., Berkman Gordon Murray & Devan, Cleveland, OH, for Plaintiffs.

Thomas Anthony Pacello, Jr., Robert B. Rolwing, City Attorney's Office, Memphis, TN, for Defendants.

ORDER DENYING MOTION FOR PRELIMINARY INJUNCTION

BERNICE B. DONALD, District Judge.

Before the Court is Plaintiffs' Motion for Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure. At issue in this case is the local adoption of the Tennessee Adult-Oriented Establishment Registration Act ("Act"), Tenn.Code Ann. §§ 7-51-1101 et seq., in Shelby County, Tennessee. Plaintiffs allege that a preliminary injunction should issue for the following reasons: (1) the Act violates the First Amendment to the United States Constitution; (2) the Act is unconstitutionally overbroad on its face; (3) the Act is unconstitutionally vague; and (4) the Act is not applicable within the City of Memphis due to its present ordinances. The Court finds that Plaintiffs have riot demonstrated a substantial likelihood of success on the merits of these claims. Additionally, the Court finds that the remaining factors for injunctive relief do not weigh in Plaintiffs' favor. Accordingly, Plaintiffs' Motion for Preliminary Injunction is DENIED.

I. BACKGROUND

On September 10, 2007, Shelby County adopted the Act in order to provide "a method of regulating sexually-oriented businesses to address their deleterious secondary effects without regard to the content of speech." Shelby County, Tenn., Ord. 344. The Act was adopted following the review of several reports on the effects of such establishments in Shelby County and the City of Memphis. Id. Ordinance 344 relied upon the Tennessee legislative findings of "recognized deleterious secondary effects commonly associated with adult-oriented establishments, including but not limited to an increase in crime, the spread of sexually-transmitted diseases, the downgrading of property values, and other public health, safety, and welfare issues." Id.; see also 2006 Tenn. Pub. Acts, ch. 943. The Act became effective in Shelby County on January 1, 2008 and will be enforced following a one-hundred-twenty day grace period.

Plaintiffs in this action operate, within the City of Memphis and Shelby County, establishments at which "dance performances of a sexually candid nature are presented for the entertainment of patrons and guests."¹ PL's Mem. of Law in Support of Mot. for Prelim. Injunction, "Pl.'s Mem." at 3. Specifically, Plaintiffs allege that a preliminary injunction should issue for the following reasons: (1) the Act violates the First Amendment because Shelby County relied upon demonstrably "shoddy" evidence to support its enactment; (2) the Act violates the First Amendment because its application will substantially diminish the availability of adult speech in Memphis; (3) the Act's prohibition on exposure of "specified anatomical areas" violates the First Amendment; (4) the Act's no-touching provision violates the First Amendment; (5) the Act's definitions of "adult cabaret" and "adult entertainment" are unconstitutionally overbroad because they include a myriad of non-adult establishments with no connection to the secondary effects of sexually oriented businesses (6) the Act's definitions of "adult cabaret" and "adult entertainment" are unconstitutionally vague; and (7) the Act should not be applicable within the City of Memphis based upon its existing ordinances.

II. STANDARD OF REVIEW

A preliminary injunction is an extraordinary remedy requiring the party seeking such relief to demonstrate a clear entitlement to the injunction under the given circumstances. Overstreet v. Lexington-Fayette Urban Cty. Gov't, 305 F.3d 566, 573 (6th Cir.2002). The purpose of a preliminary injunction is to preserve the status quo until the district court can hold a trial on the merits. United States v. Edward Rose & Sons, 384 F.3d 258, 261 (6th Cir.2004). In determining whether a party is entitled to a preliminary injunction, the Court must consider the following four factors: (1) whether the movant has demonstrated a substantial likelihood of success on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not issued; (3) whether the issuance of the injunction will cause substantial harm to others if issued; and (4) whether the public interest is served by issuance of the injunction. Nightclubs, Inc. v. City of Paducah, 202 F.3d 884 (6th Cir.2000). "These factors are not prerequisites, but are factors that are to be balanced against each other." Edward Rose, 384 F.3d at 261. The inquiry into whether the movant has demonstrated a likelihood of success on the merits is often determinative of whether the injunction should issue in cases that substantially implicate First Amendment concerns. Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville, 274 F.3d 377, 400 (6th Cir.2001). Thus, the Court will focus its analysis on Plaintiffs' likelihood of success on the merits. The Court will then briefly discuss the remaining factors to determine if injunctive relief is appropriate.

III. ANALYSIS

A. FIRST AMENDMENT

1. Constitutionality

Initially, the Court will consider whether Plaintiffs have a substantial likelihood of success on their claims that the Act's provisions violate the First Amendment. Specifically, Plaintiffs allege that (1) the evidence relied upon to link adult businesses to adverse secondary effects is "demonstrably shoddy," (2) the Act will virtually eliminate live adult entertainment in Memphis (3) the prohibition on exposing "specified anatomical areas" is unconstitutional, and (4) the no-touching restriction is unconstitutional.

It is well-settled that the expressive conduct of erotic dancing lies "within the outer perimeters of the First Amendment, though we view it as only marginally so." Barnes v. Glen Theatre, Inc., 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (plurality opinion). As such, erotic dancing is guaranteed "only the barest minimum of protected expression." Doran v. Salem Inn, Inc., 422 U.S. 922, 932, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975). Even when First Amendment rights are involved, the expression involved in these challenges "is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate." Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976).

Generally, regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment. City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 46-47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). However, content-neutral time, place, and manner restrictions are acceptable under the First Amendment so long as they are "designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication." Id. Although laws restricting sexually oriented "porn-type speech" are content based, see Richland Bookmart, Inc. v. Nichols, 137 F.3d 435, 439 (6th Cir.1998), such speech should be "treated as if it were content-neutral because ... it is less than fully protected," id. (emphasis in original); see also American Mini Theatres, 427 U.S. at 70-71, 96 S.Ct. 2440. The Supreme Court's rationale for this distinction is that a court may seek to regulate the secondary effects of speech rather than the speech itself "without violating the government's paramount obligation of neutrality in its regulation of protected communication." Renton, 475 U.S. at 49, 106 S.Ct. 925 (quoting American Mini Theatres, 427 U.S. at 70, 96 S.Ct. 2440).

In order for a regulation on such adult expression to pass constitutional muster, it must survive the following fourprong test: (1) the law must be passed within the constitutional power of the government; (2) the law must further an important or substantial government interest; (3) the governmental interest must be unrelated to the suppression of free expression; and (4) the incidental restriction on the First Amendment freedoms must be no greater than is essential to the furtherance of that interest. United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).

The Court initially notes that the Tennessee Court of Appeals has already meticulously analyzed the Act under each step of the O'Brien test. See American Show Bar Series, Inc. v. Sullivan Cty., 30 S.W.3d 324 (Tenn.Ct.App.2000), perm. app. denied, (Tenn. Mar. 15, 2000). As to the first prong, the Court found that the "protection of public health, safety, and welfare falls squarely within the constitutional police powers of the local government." Id. at 335 (citation omitted). Next, the court found that the second prong of O'Brien was satisfied because courts have "consistently found that the prevention of crime and disease" is an important or substantial government interest. Id. at 336; see also DLS, Inc. v. City of Chattanooga, 107 F.3d 403, 410 (6th Cir.1997). Additionally, the "combating of secondary effects of adultoriented establishments is an interest that is not directly related to the suppression of protected speech" and thus satisfies the third prong. Id. (citing Barnes, 501 U.S. at 585, 111 S.Ct. 2456 ("on its face, the governmental interest in combating prostitution and other criminal activity is not at all related to expression.")). Finally, the Court analyzed each challenged provision of the Act to determine whether it was...