Blue Canary Corp. v. City of Milwaukee

• Decision Date: 29 May 2001
• Docket Number: No. 00-3543,00-3543
• Citation: 251 F.3d 1121
• Parties: (7th Cir. 2001) Blue Canary Corporation, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1121

251 F.3d 1121 (7th Cir. 2001)

Blue Canary Corporation, Plaintiff-Appellant, v. City of Milwaukee, Defendant-Appellee.

No. 00-3543

In the United States Court of Appeals For the Seventh Circuit

Argued March 30, 2001

Decided May 29, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99 C 891--John W. Reynolds, Judge.

Before Flaum, Chief Judge, and Posner and Evans, Circuit Judges.

Posner, Circuit Judge.

The plaintiff, appealing from the grant of summary judgment in favor of the defendant, the City of Milwaukee, argues that the City's refusal to renew the plaintiff's liquor license violated the free speech clause of the First Amendment. The plaintiff had bought a tavern in Milwaukee that entertained its patrons with polkas. It obtained a liquor license and shortly afterward changed the name of the tavern from Blue Canary to Runway 94 and applied for and received a "cabaret license," which permits a tavern to provide entertainment in the form of dancing by performers. On the application form the plaintiff's manager checked "floor shows" rather than "exotic dancers/male and/or female strippers," and at a hearing on the application she explained that she wanted to put on "Las Vegas style" nightclub acts. But instead, after receiving the cabaret license, the tavern put on shows in which the performers danced in only pasties and bikini bottoms, which the licensing authority believed constituted "exotic dancing" rather than "Las Vegas style" dancing even though the dancers did not strip on stage but merely appeared, as it were, fully unclothed down to the pasties and bikini bottoms. The plaintiff reluctantly applied for a supplementary license to permit "exotic dancing." This was denied, but the tavern continued to exhibit "exotic dancing" in the form described, with some weird touches, such as dancers who sucked on their breasts while hanging upside down. The erotic character of the entertainment was not concealed. One dancer allowed a customer to slip money between her breasts. Another acknowledged that she tried to "turn guys on" in order to get tips. Others simulated intercourse.

When the tavern's liquor license came up for renewal at the end of its one-year term, a hearing was held at which residents of the immediate neighborhood opposed renewal on grounds of noise, traffic, and litter, but also moral disapproval of the entertainment. One neighbor complained that a person had come out of the tavern and urinated in his mailbox. The license was not renewed, and this suit ensued.

The plaintiff complains primarily about the vagueness of the ordinance governing grants and renewals of liquor licenses-- which so far as bears on this case requires merely a determination of "whether or not the applicant's proposed operations are basically compatible with the normal activity of the neighborhood in which the licensed premises is to be located," Milwaukee Code of Ordinances sec. 90-35-1-e--and of the category in the application form "exotic dancers/male and/or female strippers." The vagueness of the category is relevant, however, only if the City violated the plaintiff's rights by refusing to renew its liquor license. If it did, the next question would be whether the City committed a further violation by refusing to grant an "exotic dancers" supplement to the plaintiff's cabaret license. But if the City was entitled to conclude that the nature of the entertainment in the plaintiff's tavern, whatever one calls it, was so inappropriate to the neighborhood as to justify not renewing the liquor license (since the plaintiff was uninterested in switching to a form of entertainment that the neighbors would not have objected to), it is irrelevant whether the entertainment was or was not "exotic dancing."

The plaintiff repeats its complaint about vagueness under the rubric of "prior restraint." The term refers to requiring governmental permission to engage in specified expressive activity, in contrast to punishing the activity after it has taken place. Alexander v. United States, 509 U.S. 544, 550 (1993); Freedman v. Maryland, 380 U.S. 51, 57 (1965); Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963). In the England of Shakespeare's day and indeed for centuries afterwards, a play could not be exhibited in a theater without a license from the Lord Chamberlain. That was a classic prior restraint. Blackstone defined freedom of speech and the press as freedom from prior restraints, 4 William Blackstone, Commentaries on the Laws of England 151-53 (1769); see Pitts burgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 389-90 (1973); MacDonald v. City of Chicago, 243 F.3d 1021, 1031 (7th Cir. 2001); Thomas v. Chicago Park District, 227 F.3d 921, 923-24 (7th Cir. 2000); Hudson v. Chicago Teachers Union, 743 F.2d 1187, 1192 (7th Cir. 1984); City of Paducah v. Investment Entertainment Inc., 791 F.2d 463, 466 (6th Cir. 1986), and while the First Amendment has not been interpreted to be limited so, the idea that prior restraints are particularly harmful to expressive freedoms has lingered. Besides the cases that we have cited already, see Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-59 (1975); Near v. Minnesota, 283 U.S. 697, 713-16 (1931); Stokes v. City of Madison, 930 F.2d 1163, 1168 (7th Cir. 1991); Auburn Police Union v. Carpenter, 8 F.3d 886, 903 (1st Cir. 1993).

But the rationale for condemning prior restraints limits the scope of the concept. By "prior restraint" Blackstone and modern courts alike mean censorship-- an effort by administrative methods to prevent the dissemination of ideas or opinions thought dangerous or offensive. The censor's concern is with the content of speech, and the ordinary judicial safeguards are lacking. "Prior restraints" that do not have this character are reviewed under the much more permissive standard applicable to restrictions merely on the time, place, or manner of expression. See, e.g., MacDonald v. City of Chicago, supra; Thomas v. Chicago Park District, supra. Permit requirements are routinely imposed on the use of public parks and other public spaces for expressive uses, including entertainment and political demonstrations; and the...