Entertainment Productions v. Shelby County, Tenn.

• Decision Date: 25 November 2009
• Docket Number: No. 08-5494.,08-5494.
• Parties: ENTERTAINMENT PRODUCTIONS, INC., et al., Plaintiffs-Appellants, v. SHELBY COUNTY, TENN., et al., Defendants-Appellees, Robert E. Cooper, Jr., Attorney General, Intervenor Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

588 F.3d 372

ENTERTAINMENT PRODUCTIONS, INC., et al., Plaintiffs-Appellants, v. SHELBY COUNTY, TENN., et al., Defendants-Appellees, Robert E. Cooper, Jr., Attorney General, Intervenor Defendant-Appellee.

No. 08-5494.

United States Court of Appeals, Sixth Circuit.

Argued: April 20, 2009.

Decided and Filed: November 25, 2009.

ARGUED: J. Michael Murray, Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellants. Robert B. Rolwing, Assistant County Attorney, Shelby County Government, Memphis, Tennessee, Steven A. Hart, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellees. ON BRIEF: J. Michael Murray, Raymond V. Vasvari, Jr., Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellants. Robert B. Rolwing, Assistant County Attorney, Shelby County Government, Memphis, Tennessee, Steven A. Hart, Office of the Tennessee Attorney General, Nashville, Tennessee, Thomas Roane Waring III, City Attorney's Office, Memphis, Tennessee, for Appellees.

Before: BOGGS, MOORE, and SUTTON, Circuit Judges.

BOGGS, J., delivered the opinion of the court, in which SUTTON, J., joined. MOORE, J. (p. 395-96), delivered a separate opinion concurring only in the judgment.

OPINION

BOGGS, Circuit Judge.

Plaintiffs-Appellants Entertainment Productions, Inc., et al. filed suit to challenge the constitutionality of the Tennessee Adult-Oriented Establishment Registration Act ("Act" or "Tennessee Act") on First Amendment grounds. Plaintiffs appeal from a district court's denial of a preliminary injunction against the enforcement of the Tennessee Act in Shelby County. Plaintiffs claim that the Tennessee Act is unconstitutional on four grounds. First, Plaintiffs contend that the definitions of "adult cabaret," "adult-oriented establishment," and "adult entertainment" render the Act unconstitutionally overbroad, and second, that these definitions are vague. Third, Plaintiffs argue that prohibitions on certain kind of physical contact on the premises of an adult-oriented establishment are overbroad. Fourth, Plaintiffs claim that the Tennessee Act will substantially diminish the availability of adult speech in Memphis, Shelby County. Plaintiffs conclude that the district court erred in determining both that Plaintiffs did not demonstrate a substantial likelihood of success on the merits of their claims and that the balancing of equities disfavored a preliminary injunction. We affirm the district court's denial of the preliminary injunction.

I

This case presents a constitutional challenge to the Tennessee Adult-Oriented Establishment Registration Act of 1998, Tenn.Code Ann. § 7-51-1101 et seq. The Tennessee Act is a county-option state law, enacted to address the recognized negative secondary effects associated with "adult" or sexually oriented businesses, including crime, spread of sexually transmitted diseases, lowering of property values, and other related public welfare and safety issues. The Act sets up a licensing scheme for sexually oriented businesses, prohibits certain activities on the premises of such businesses, and regulates the manner in which entertainment may be presented therein. The Act enters into effect in a particular county after "a two-thirds (2/3) vote of the county legislative body adopting this part." Tenn.Code Ann. § 7-51-1120. On September 13, 2007, Shelby County's Ordinance 344 ("Ordinance") adopted the Tennessee Act in Shelby County. The Ordinance relied on Tennessee's legislative findings of "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." Pursuant to the Ordinance, the Act entered into effect in Shelby County on January 1, 2008, but provided a 120-day "grace period" to allow businesses and employees to obtain licenses required by the Act.

The Act regulates all establishments that conform to a statutory definition of "adult-oriented establishment" in two general ways. First, all businesses subject to the Act, as well as their employees and entertainers, must obtain a license or a permit. Second, the Act regulates the manner in which entertainment may be provided by adult-oriented establishments: it prohibits nudity, certain sexual activities, certain kinds of physical contact, and requires that all performances take place on a stage at least 18 inches above floor level and that all performers stay at least six feet away from customers, employees and other performers.

Plaintiffs operate a "substantial fraction" of the nightclubs in Memphis, Shelby County. On January 25, 2008—prior to the expiration of the 120-day grace period for obtaining licenses—Plaintiffs filed suit in the United States District Court for the Western District of Tennessee against Shelby County and the City of Memphis, seeking injunctive relief and a declaratory judgment. Tennessee's Attorney General, Robert E. Cooper, Jr., was granted leave to intervene to defend the constitutionality of the Act (Shelby County, the City of Memphis, and the Attorney General are collectively referred to as "Defendants"). After a preliminary injunction hearing, the district court denied the requested injunction on the basis that Plaintiffs did not demonstrate a substantial likelihood of success on the merits of their claims.¹ Plaintiffs now appeal from that decision.

II

A

A district court's denial of injunctive relief is normally reviewed for an abuse of discretion. Hamilton's Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir.2007). The district court considers and balances four factors in making its decision: "(1) whether the plaintiff has established a substantial likelihood or probability of success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff; (3) whether issuance of the injunction would cause substantial harm to others; and (4) whether the public interest would be served by granting injunctive relief." Ibid. (quoting City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 784, 124 S.Ct. 2219, 159 L.Ed.2d 84 (2004)). The first factor is crucial in First Amendment cases because public interest and harm to the parties largely depend on the constitutionality of the challenged law. The first factor presents a "purely legal question of whether the district court improperly applied governing law or used an erroneous legal standard," which we review de novo. Ibid. (internal quotation marks and citations omitted).

B

This court has repeatedly faced challenges to the constitutionality of state and local regulations of sexually or adult-oriented establishments. We recognize that such regulations tend to abridge the opportunities for the communication and reception of "at least two protected categories of speech: first, sexually explicit but non-obscene speech, such as adult publications and adult videos, and second, `symbolic speech' or `expressive conduct,' such as nude [or nearly nude] dancing." Richland Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 520 (6th Cir.2009); see also Deja Vu of Nashville, Inc. v. Metro. Gov't of Nashville & Davidson County, 274 F.3d 377, 396 (6th Cir.2001). Notwithstanding the protection accorded to erotic expression by the First Amendment, the Supreme Court has held that governments may adopt measures intended to ameliorate the adverse secondary effects of such expression, so long as the restrictions placed on expression survive intermediate scrutiny as set forth in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), and City of Renton v. Playtime Theatres, 475 U.S. 41, 47, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Restrictions on sexually explicit expression are constitutionally permissible if: they further a substantial governmental interest "unrelated to the suppression of free expression," O'Brien, 391 U.S. at 377, 88 S.Ct. 1673—specifically, the amelioration of adverse secondary effects associated with adult establishments; they are narrowly tailored; and they "do not unreasonably limit alternative avenues of communication," Renton, 475 U.S. at 47, 106 S.Ct. 925. See Richland Bookmart, 555 F.3d at 520-22.

In accordance with O'Brien, Renton, and their progeny, we have declined to uphold particular regulatory measures, for which no substantial governmental interest unrelated to the suppression of speech was proffered, that burdened more speech than necessary in a manner unconnected to the interest in controlling secondary effects, and/or which unreasonably limited the avenues of communication for adult-oriented speech. See, e.g., Hamilton's Bogarts, Inc., 501 F.3d at 654; Exec. Arts Studio, Inc. v. City of Grand Rapids, 391 F.3d 783, 798-99 (6th Cir.2004); see also 729, Inc. v. Kenton County Fiscal Court, 515 F.3d 485, 504 (6th Cir.2008).

In the present case, Plaintiffs do not argue that the application of the Tennessee Act to their establishments does not satisfy intermediate scrutiny under O'Brien and Renton.² Indeed, because the Act has not yet been enforced against Plaintiffs, they challenge key provisions of the Act as overly broad and/or vague, and maintain that nothing short of facial invalidation will remedy the chilling effect created by the threat of its unconstitutional applications.

In the context of the First Amendment, the chief evil of overly broad laws consists in the chilling effect they produce on protected expression. For this reason, the Supreme Court has relaxed the traditional rules of standing: plaintiffs are permitted "to challenge a statute not because their own rights of free expression are violated, but 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." Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir.2007) (internal...