Doe v. City of Minneapolis, 88-5498

• Decision Date: 12 March 1990
• Docket Number: No. 88-5498,88-5498
• Citation: 898 F.2d 612
• Parties: John DOE, Timothy Campbell, and Ferris J. Alexander, Appellants, v. CITY OF MINNEAPOLIS, a municipal corporation, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 612

898 F.2d 612

John DOE, Timothy Campbell, and Ferris J. Alexander, Appellants, v. CITY OF MINNEAPOLIS, a municipal corporation, Appellee.

No. 88-5498.

United States Court of Appeals Eighth Circuit.

Submitted June 14, 1989.

Decided March 12, 1990.

Randall D.B. Tigue, Minneapolis, Minn., for appellants.

C. Lynne Fundingsland, Minneapolis, Minn., for appellee.

Before JOHN R. GIBSON and WOLLMAN, Circuit Judges, and BROWN, ^* Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

John Doe, ¹ Timothy Campbell, and Ferris Alexander appeal from a district court ² order upholding the constitutionality of a City of Minneapolis, Minnesota ordinance which: (1) prohibited the construction, use, design, or operation of a commercial building for the purpose of engaging in, or permitting persons to engage in, sexual activities which include high risk sexual conduct; ³ (2) specifically prohibited partitions between subdivisions with apertures designed or constructed to facilitate sexual activities between persons on either side of the partition; and (3) provided that booths or stalls have at least one side open so that the area inside is visible to persons in the adjacent public room if the booth is used to view motion pictures or other forms of entertainment. Alexander owns and operates six adult bookstores in Minneapolis, and Doe and Campbell are customers of those establishments. Before the district court, Doe, Campbell, and Alexander unsuccessfully sought declaratory and injunctive relief against the City under 42 U.S.C. Sec. 1983 (1982). On appeal, they contend that the ordinance is both facially unconstitutional and unconstitutional as applied under the first and fourteenth amendments of the Constitution. We affirm the order of the district court.

On April 7, 1988, the City of Minneapolis enacted an ordinance ⁴ requiring that doors be removed from viewing booths in adult bookstores. The city council promulgated the ordinance to diminish the proliferation of contagious diseases spread by high risk sexual conduct that was shown to take place in these booths. In enacting the ordinance the council was particularly concerned with the spread of the Acquired Immune Deficiency Syndrome (AIDS) virus. ⁵

Alexander owns and operates six of the eight adult bookstores operating within the city limits of Minneapolis. Each of these establishments have coin-operated booths offering a choice of either video entertainment or a live dance performance. There are 125 such booths in Alexander's stores. ⁶ All but six of the booths are designated single-person booths, ⁷ which measure between three feet square and four feet square. (Motion Hearing on Preliminary Injunction Tr. 151). Each booth has an opaque, full-length door which closes and locks.

Doe is a regular patron of the adult bookstores operated by Alexander, and has frequented the coin-operated video booths in these establishments. He prefers viewing videos in private, and claims that if the doors were removed, he would be intimidated from continuing to use the booths. (Jt.App. at A.17).

Campbell is also a customer of Alexander's adult bookstore viewing booths. He has patronized these booths since 1973. (Motion Hearing on Preliminary Injunction Tr. 45). Campbell is also the editor of the G.L.C. Voice, a local gay and lesbian newspaper, and a well-known gay activist. (Motion Hearing on Preliminary Injunction Tr 60). He also contends that removal of the doors would restrict his use of the video booths. (Jt.App. at A.21).

Shortly after the ordinance was enacted, appellants obtained a temporary restraining order preventing the City from enforcing the ordinance. Appellants also sought a preliminary injunction and their action for such relief was consolidated with a trial on the merits. The district court, in a detailed order, denied appellants' prayer for a declaratory judgment that the ordinances were unconstitutional, dissolved its temporary restraining order, and denied appellants' motion for a preliminary and permanent injunction against enforcement of the ordinance. Doe v. City of Minneapolis, 693 F.Supp. 774, 785 (D.Minn.1988).

The Minneapolis City Council is empowered by law to "take such measures as [it] may in good faith declare the public safety and health to demand in case of pestilential or epidemic diseases or all danger from anticipated or impending pestilences or diseases or in case the sanitary conditions of the city shall be of such a character to warrant it." Minneapolis City Charter, ch. 14, Sec. 3(c). ⁸ In an effort to combat the spread of contagious diseases caused by high risk sexual conduct, especially AIDS, the city council held public hearings, and compiled a record of live testimony, affidavits, and medical evidence concerning AIDS. ⁹

The record before the council included: (1) affidavits by Minneapolis law enforcement officers stating that they had observed mutual masturbation, oral sex, and anal sex in adult bookstore viewing booths (Jt.App. at A.117, A.122-23); (2) support for the proposed ordinance from the Minnesota State Epidemiologist, the Director of Disease Prevention and Control for the Minnesota Department of Health, and the Minnesota Commissioner of Health, (Jt.App. at A.125); (3) scientific articles on the spread of the AIDS virus (Jt.App. at A.131-38, A.163-65); and (4) affidavits submitted by officials from Marion County, Indiana, (Jt.App. at A.155-62). ¹⁰

From this record, the council concluded that the design of certain buildings was conducive to the spread of communicable diseases, and that these buildings presented a danger to the persons frequenting such buildings and "to the public health, safety and welfare of the community," infra Sec. 219.500, in general. In so doing, the council took special note of AIDS, due to its irreversible and uniformly fatal nature, and found that it was associated with high risk sexual conduct and of particular danger to persons in the community. To combat the threat posed by such high risk conduct the council enacted the ordinance challenged in this case.

I.

Appellants first argue that the ordinance is unconstitutional as applied to Doe and Campbell. They contend that the ordinance will have the effect of substantially limiting the availability of sexually explicit adult entertainment in violation of the first and fourteenth amendments to the Constitution. ¹¹

The City does not contend that the video entertainment or live dancing involved in this matter are obscene and, accordingly, as did the district court, we presume that materials in question are afforded first amendment protection. See Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 756, 96 S.Ct. 1817, 1822, 48 L.Ed.2d 346 (1976). Therefore, we assume that Doe and Campbell have a protectable first amendment right to view this entertainment. ¹²

This ordinance does, by removing doors, place a manner restriction on how protected speech is received by Doe and Campbell. Although restrictions on protected speech are presumed to be unconstitutional if their purpose is to restrict speech because of its content, City of Renton v. Playtime Theatres, 475 U.S. 41, 46-47, 106 S.Ct. 925, 928, 89 L.Ed.2d 29 (1986), protected speech can be subject to time, place, and manner restrictions. Ward v. Rock Against Racism, --- U.S. ----, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3068, 82 L.Ed.2d 221 (1984); United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).

In its detailed opinion, the district court carefully considered the claims raised by Doe, Campbell, and Alexander, and we find this analysis to be persuasive. The court considered the ordinance under the factors set forth in City of Watseka v. Illinois Pub. Action Council, 796 F.2d 1547, 1552 (7th Cir.1986), affirmed, 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972 (1987). We believe, however, in light of the Supreme Court's decision in Ward v. Rock Against Racism, 109 S.Ct. at 2753, decided after the district court's decision in this case, that the Ward analysis should govern our review. ¹³ As the district court in this case rejected a first amendment claim, we review de novo. See Bose Corp. v. Consumers Union of United States, 466 U.S. 485, 498-511, 104 S.Ct. 1949, 1958-65, 80 L.Ed.2d 502 (1984). ¹⁴

In Ward, the Court set out the appropriate standard for reviewing restrictions on the time, place, or manner of speech: [T]he government may impose reasonable restrictions on the time, place, or manner of protected speech, provided restrictions "are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alterative channels for communication of the information.

Id. 109 S.Ct. at 2753 (quoting Community for Creative Non-Violence, 468 U.S. at 293, 104 S.Ct. at 3069); see Frisby v. Shultz, 487 U.S. 474, 108 S.Ct. 2495, 2499, 101 L.Ed.2d 420 (1988); Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460 U.S. 37, 44, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983); Virginia Pharmacy, 425 U.S. at 771, 96 S.Ct. at 1830. Since we see the ordinance as a restriction on protected speech, we now review it under the Ward analysis.

A.

"The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 109 S.Ct. at 2754. In this inquiry the controlling consideration is the government's purpose. Id. "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id. As long as the governmental regulation of expression can be "justified without reference to the...