DiMa Corp. v. Town of Hallie

• Decision Date: 24 August 1999
• Docket Number: No. 98-3997,98-3997
• Citation: 185 F.3d 823
• Parties: (7th Cir. 1999) DiMa Corporation, Plaintiff-Appellant, v. Town of Hallie, Defendant-Appellee
• Court: U.S. Court of Appeals — Seventh Circuit

Page 823

185 F.3d 823 (7th Cir. 1999)

DiMa Corporation, Plaintiff-Appellant, v. Town of Hallie, Defendant-Appellee.

United States Court of Appeals, Seventh Circuit

No. 98-3997

Argued April 15, 1999

Decided July 26, 1999

Rehearing and Suggestion for rehearing En Banc Denied August 24, 1999

Appeal from the United States District Court for the Western District of Wisconsin. No. 98 C 240 C--Barbara B. Crabb, Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] Before Cudahy, Coffey, and Manion, Circuit Judges.

Manion, Circuit Judge.

In the Town of Hallie, Wisconsin, DiMa Corporation operates an adult bookstore, which is currently open 24 hours per day. After Hallie adopted an ordinance limiting the hours such bookstores may be open, DiMa filed this suit under 42 U.S.C. sec. 1983 seeking declaratory and injunctive relief against enforcing the ordinance, claiming that the ordinance violates DiMa's free speech rights under the First and Fourteenth Amendments. The district court granted summary judgment for Hallie. Because we conclude that the record sufficiently supports Hallie's claim that the ordinance is a reasonable attempt to control undesirable "secondary effects" rather than an attempt to regulate speech because of its objectionable content, we affirm the district court.

Background

Hallie is a small town in rural Wisconsin between Eau Claire and Chippewa Falls. DiMa operates the "Pure Pleasure" bookstore in Hallie. Pure Pleasure sells sexually explicit, non- obscene books and magazines, and it has private booths in which a patron can watch sexually explicit, non-obscene video tapes.¹ Since it opened, Pure Pleasure has operated 24 hours per day. In March 1998, Hallie adopted Ordinance No. 98-1, which regulates "adult-oriented establishments," including "adult bookstores." DiMa does not dispute that Pure Pleasure falls within the ordinance's definition of these terms. The ordinance regulates adult-oriented establishments in various ways but in this suit DiMa challenges only one of them: the hours of operation limits contained in Section 1.06. Under that section, an adult-oriented establishment may not be open between 2:00 a.m. and 8:00 a.m. Monday through Friday, between 3:00 a.m. and 8:00 a.m. on Saturday, and between 3:00 a.m. and noon on Sunday. The ordinance thus requires adult bookstores to be closed about one-quarter of the hours during a week. (These are the same hours of operation limits that Wisconsin has placed on establishments that serve alcohol. See Wisc. Stat. sec.sec. 125.32(3) & 125.68(4).) Section 1.06 has not yet been enforced: the parties stipulated to an injunction of it while the matter was pending in the district court, and the district court continued that injunction pending the outcome of this appeal.

Analysis

The First Amendment provides in part that "Congress shall make no law . . . abridging the freedom of speech, or of the press." Section One of the Fourteenth Amendment incorporated this provision and so it prohibits state government from abridging these freedoms as well. See, e.g., Gitlow v. New York, 268 U.S. 652, 666 (1925); 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 116 S.Ct. 1495, 1501 n.1 (1996).² Because the ordinance has not yet been applied to Pure Pleasure, we are confronted with a facial challenge to the statute, rather than a challenge to the way the statute has been applied to Pure Pleasure. The threshold question in a First Amendment free speech case is whether the challenged law is content-based, that is, whether the law regulates speech based on the ideas or messages it expresses. "Content-based regulations are presumptively invalid." R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992). On the other hand, government is given much more leeway when its content-neutral regulations happen to limit some speech. See United States v. Wilson, 154 F.3d 658, 663 (7th Cir. 1998) ("If a statute is content-based, it must survive strict scrutiny to be constitutional. If a statute is content- neutral, it is subject only to intermediate scrutiny."). Therefore, government may impose reasonable time, place, and manner restrictions if they are "justified without reference to the content of the regulated speech." Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (internal quotation marks omitted).

There are some categorical exceptions to this general analysis, however; government has more freedom to regulate certain kinds of speech, even though it does so based on the content of the speech. Within constitutional limits, government may proscribe obscenity, see Miller v. California, 413 U.S. 15, 23 (1973); child pornography, see Osborne v. Ohio, 495 U.S. 103, 111 (1990); defamation, see New York Times Co. v. Sullivan, 376 U.S. 254, 268 (1964); and so-called "fighting words," see Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942).³ The Supreme Court applies yet a different kind of analysis to the category of speech at issue here: sexually explicit, non-obscene materials. Because this speech is not obscene, government may not simply proscribe it. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 66 (1981) ("[A]n entertainment program [may not] be prohibited solely because it displays the nude human figure."). But because these materials border on the obscene, they are entitled to less First Amendment protection than non-sexually-explicit materials. See Young v. American Mini Theatres, Inc., 427 U.S. 50, 70-71 (1976) (plurality) ("Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures."). So in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 49 (1986), the Court held that "at least with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses are to be reviewed under the standards applicable to 'content-neutral' time, place, and manner regulations." (Footnote omitted.)

As the Sixth Circuit recently noted, the Court's analysis has caused some confusion among courts and litigants, and that confusion is evident in this case. See Richland Bookmart, Inc. v. Nichols, 137 F.3d 435, 440 (6th Cir. 1998). The Court held that regulation of sexually explicit material would be treated like content-neutral time, place, and manner regulations, not that it was content-neutral. Thus when courts and litigants fall into the shorthand of simply referring to regulations like the one here as "content-neutral," they can find themselves arguing about irrelevancies. Here, DiMa, with ample citation to cases, argues that the ordinance is not content-neutral, while Hallie argues that it is. DiMa is obviously correct: the ordinance singles out adult-oriented establishments for different treatment based on the content of the materials they sell or display. Richland Bookmart, Inc., 137 F.3d at 438-39. But because that content is sexually explicit materials, DiMa's conclusion that strict scrutiny applies here does not follow. Rather, Hallie's ordinance is constitutional so long as it satisfies the requirements of a reasonable time, place, and manner restriction.

Time, place, and manner restrictions are "reasonable," that is, do not violate the First Amendment, if they: (1) are justified without reference to the content of the regulated speech; (2) are narrowly tailored to serve a significant government interest; and (3) leave open ample alternative channels for communication of the information. Ward, 491 U.S. at 791; see also United States v. O'Brien, 391 U.S. 367, 377 (1968) (stating test with slightly different language). Hallie asserts that the third prong is satisfied because the ordinance permits Pure Pleasure to be open for significant periods of time, about three-quarters of the hours during a week, and DiMa does not challenge this assertion. DiMa also does not contend that the second prong is not satisfied: it neither challenges Hallie's proffered interests as being not significant nor does it claim that it should be required to close for some fewer number of hours. Our analysis, then, focuses only on the first prong. DiMa levels a number of attacks at the ordinance, arguing that it is not justified as anything other than a regulation of sexually explicit material of which the Hallie city officials disapprove.

We can reject DiMa's first argument rather easily. DiMa claims that at least some of the Hallie Township Board members had an improper motive when they voted for the ordinance: rather than acting to combat crime, deter sexually transmitted diseases, and the other "legitimate" goals that the ordinance's preamble asserts, at least some of the Board members voted for the ordinance because of local opposition to the "vice" of sexually explicit materials. The record shows that DiMa is correct. Some members of the Board desired to close down Pure Pleasure altogether because of numerous complaints from Hallie residents who objected to having an adult bookstore in their town. Recognizing that the Constitution did not permit proscribing sexually explicit materials, at least some of the Board members seemed willing to enact the ordinance because it was the most that they could do consistent with the Constitution. But attacking the ordinance because it was enacted by persons with "impure hearts" gets DiMa nowhere. The actual motives of those who enacted the ordinance are irrelevant to our First Amendment analysis. "It is a familiar principle of constitutional law that this Court will not strike down an otherwise constitutional statute on the basis of an alleged illicit legislative motive." O'Brien, 391 U.S. at 383; Renton, 475 U.S. at 47-48 (quoting O'Brien). Similarly, in a case applying the First Amendment's free-exercise clause, Justice Scalia, joined by the Chief...