American Bush v. City of South Salt Lake

Decision Date28 July 2006
Docket NumberNo. 20020117.,20020117.
Citation2006 UT 40,140 P.3d 1235
PartiesAMERICAN BUSH, a Utah corporation; Jerry Phelps, dba Paradise Modeling; Brent E. Reid, dba All for Love; Gayle Petersen, dba Leather and Lace, Plaintiffs and Appellants, v. CITY OF SOUTH SALT LAKE, a municipal corporation, Defendant and Appellee.
CourtUtah Supreme Court

W. Andrew McCullough, Trenton K. Ricks, Midvale, for plaintiffs.

Janice L. Frost, David M. Carlson, South Salt Lake, and Scott D. Bergthold, Chattanooga, Tennessee, for defendant.

PARRISH, Justice:

¶ 1 Plaintiffs American Bush, Jerry Phelps,1 Brent E. Reid, and Gayle Petersen (collectively, the "Businesses") appeal the district court's denial of their motion for summary judgment and grant of summary judgment to the City of South Salt Lake ("South Salt Lake" or the "City") on the Businesses' claim that the Utah Constitution protects nude dancing. We hold that the provisions of the Utah Constitution that guarantee Utah citizens' rights to "communicate freely their thoughts and opinions" do not extend protection to nude dancing in sexually oriented businesses. We accordingly affirm.


¶ 2 Plaintiffs American Bush, Jerry Phelps, dba Paradise Modeling, and Gayle Petersen, dba Leather and Lace, operate nude dancing establishments located in South Salt Lake. Plaintiff Brent E. Reid owns a lingerie and novelty store, also situated in South Salt Lake. In May 2001, the South Salt Lake City Council adopted a new sexually oriented business ordinance that repealed and replaced all previous ordinances of this type. Section 5.56.310(G) of the new ordinance specifically prohibits any sexually oriented business employee from "[a]ppear[ing] in a state of nudity before a patron on the premises of a sexually oriented business." This language, which had not appeared in previous versions of the City's sexually oriented business ordinance, effectively eliminates the former subcategory of "nude dancing establishments" and requires three of the four businesses—American Bush, Paradise Modeling, and Leather and Lace—to either reapply for business licenses as semi-nude dancing establishments or face civil and criminal sanctions for violation of the new ordinance.

¶ 3 Originally, the Businesses filed an action in district court, claiming, among other things, that article I, section 15 of the Utah Constitution confers greater protection on expression than does the United States Constitution, rendering the City's ordinance prohibiting nude dancing a violation of state free speech rights. The City responded by removing the suit to federal district court, and the Businesses countered by amending their complaint before the City filed its answer, to delete all federal constitutional claims from the suit. The federal district court then dismissed all federal claims with prejudice but allowed the Businesses to refile their state constitutional challenges in state court.

¶ 4 After refiling in state court, the Businesses twice moved for temporary injunctions restraining the City from enforcing the ordinance. The motions were denied. The Businesses then moved for summary judgment, and the City responded with its own summary judgment motion. The district court denied the Businesses' motion and granted South Salt Lake's. The Businesses now appeal.


¶ 5 The Businesses present us with a question of Utah constitutional interpretation. Each of the businesses is, or has an interest in, a business offering nude dancing as part of an adult, sexually oriented business located in South Salt Lake City. The City has enacted various business license and zoning restrictions on sexually oriented businesses. The Businesses see these enactments as restrictions on their right of free expression through nude dancing and believe the restrictions are, or should be, prohibited under the Utah Constitution.

¶ 6 Specifically, the Businesses claim that article I, sections 1 and 15 of the Utah Constitution confer greater protection to expression through nude dancing than the United States Constitution.2 As such, they claim that the city ordinance prohibiting nude dancing in South Salt Lake violates the free speech rights of the Businesses under the Utah Constitution. As subsidiary issues, the Businesses also claim that the institution of a new city ordinance banning nude dancing in sexually oriented businesses constitutes a "taking" in violation of article I, section 7 of the Utah Constitution, that the City is without legal authority to enact such an ordinance, and that as to plaintiff Brent Reid, the summary judgment entered in the City's favor by the district court was improper. In reviewing the judgment of the district court, we will analyze each of these claims in turn.


¶ 7 Plaintiffs have produced little direct authority for the proposition that the Utah Constitution protects nude dancing. However, this is due primarily to the poverty of both Utah case law and scholarly analysis of the history and meaning of the freedom of speech provisions of the Utah Constitution. In light of this court's support of the primacy model, which analyzes issues under the state constitution before resorting to the federal constitution, West v. Thomson Newspapers, 872 P.2d 999, 1004-07 (Utah 1994), we take this opportunity to elucidate the constitutional underpinnings of our holding that the Utah Constitution does not protect nude dancing from the reach of the South Salt Lake City ordinance at issue here. The issue was fairly raised by plaintiffs, and our attention to this matter may serve to clarify the state of the law in this area.

¶ 8 The question before us is whether a South Salt Lake ordinance banning nude dancing in sexually oriented businesses violates the Utah Constitution. The first step in our analysis must be to determine whether nude dancing is a protected right under the freedom of speech clauses of the Utah Constitution. If it is a protected right, we then must determine whether the ordinance impermissibly abridges or restrains this right. As this court has not yet addressed these questions, this case is one of first impression.

A. Interpretative Framework

¶ 9 Although this court has not addressed whether the Utah Constitution protects nude dancing, prior cases provide guidance on how the freedom of speech provisions of the Utah Constitution should be interpreted. The scope of Utah's constitutional protections "may be broader or narrower than" those offered by the First Amendment, "depending on [our] state constitution's language, history, and interpretation." West, 872 P.2d at 1004 n. 4.

¶ 10 The interpretation of the protections afforded by the Utah Constitution appropriately commences with a review of the constitutional text. Grand County v. Emery County, 2002 UT 57, ¶ 29, 52 P.3d 1148 (explaining that "our starting point in interpreting a constitutional provision is the textual language itself"). While we first look to the text's plain meaning, State v. Willis, 2004 UT 93, ¶ 4, 100 P.3d 1218, we recognize that constitutional "language . . . is to be read not as barren words found in a dictionary but as symbols of historic experience illumined by the presuppositions of those who employed them." Dennis v. United States, 341 U.S. 494, 523, 71 S.Ct. 857, 95 L.Ed. 1137 (1951) (Frankfurter, J., concurring). We thus inform our textual interpretation with historical evidence of the framers' intent. State v. Betensen, 14 Utah 2d 121, 378 P.2d 669, 669-70 (1963) ("[I]t is proper to look not only to the [constitution] itself, but to the background out of which it arose and its practical application in order to determine the [framers'] intent."); see also Univ. of Utah v. Bd. of Exam'rs, 4 Utah 2d 408, 295 P.2d 348, 361-62 (1956) ("[I]f the words are ambiguous or their meaning not clear, then it is proper to look outside the instrument itself to ascertain what the framers meant by the language used.").

¶ 11 In reviewing the history of Utah constitutional provisions protecting the freedom of speech, "we [have] look[ed] for guidance to the common law, our state's particular . . . traditions, and the intent of our constitution's drafters." West, 872 P.2d at 1013. We also have looked to court decisions made contemporaneously to the framing of Utah's constitution in sister states with similar free speech constitutional provisions. KUTV, Inc. v. Conder, 668 P.2d 513, 518-21 (Utah 1983). In light of the fact that the Utah Constitution was "adopted . . . against the background of over a century of experience under the United States Constitution," an understanding of the First Amendment contemporary to its adoption is also instructive. Id. at 521.

¶ 12 In summary, in interpreting the Utah Constitution, prior case law guides us to analyze its text, historical evidence of the state of the law when it was drafted, and Utah's particular traditions at the time of drafting.3 The goal of this analysis is to discern the intent and purpose of both the drafters of our constitution and, more importantly, the citizens who voted it into effect.4 It is from this latter class of individuals that the Utah Constitution derives its power and effect, and it is to them we must look for its proper interpretation.

¶ 13 The framers of Utah's constitution saw the will of the people as the source of constitutional limitations upon our state government. On the floor of the Utah constitutional convention, Charles Varian quoted from a treatise written by Thomas Cooley, the preeminent authority of the late nineteenth century on state constitutional matters, which reads as follows:

In considering State constitutions we must not commit the mistake of supposing that, because individual rights are guarded and protected by them, they must also be considered as owing their origin to them. These instruments measure the powers of the rulers, but they do not measure the rights of the governed....

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