Hodges v. Fitle
| Decision Date | 27 September 1971 |
| Docket Number | Civ. No. 71-O-326. |
| Citation | 332 F. Supp. 504 |
| Parties | Rita HODGES et al., Plaintiffs, v. Herbert FITLE, in his capacity as City Attorney for the City of Omaha, et al., Defendants. |
| Court | U.S. District Court — District of Nebraska |
Thomas D. Carey, Omaha, Neb., for plaintiffs.
Edward M. Stein and Gary P. Bucchino, Omaha, Neb., for defendants.
This matter comes before the Court on the hearing for the issuance of a temporary injunction. The Court, on its own motion has raised the issue of subject-matter jurisdiction based upon the fact that this case involves no substantial federal question. Dismissal for lack of a substantial federal question is entirely proper. Williams v. Miller, 48 F. Supp. 277 N.D.Cal.1942, affirmed, 317 U.S. 599, 63 S.Ct. 258, 87 L.Ed. 489. See Money v. Swank, 432 F.2d 1140 7th Cir. 1970.
The jurisdictional problem here presented necessarily involves a discussion of the legal merits of the constitutional claims, since there is no other way to determine their substantiality without doing so. However, no determination of the factual merits will be made, for the determination that no substantial federal question presents itself here requires that, under full proof of the factual allegations of plaintiffs, no such question is presented. Williams v. Miller, supra.
The Court, by order from the bench, dissolved the temporary restraining order which had been previously issued as improvident and did not request arguments on the legal points hereafter presented.
Plaintiffs attack the constitutionality of Municipal Ordinance No. 25989 of the City of Omaha. That ordinance was duly passed as amendatory to Section 18.04.070 of the Omaha Municipal Code. That section of the Omaha Municipal Code sets forth those grounds upon which, after notice and hearing, a retail license to sell alcoholic liquors subject to the jurisdiction of the Omaha City Council may be suspended or revoked.
Ordinance No. 25989 reads, in part, as follows:
Plaintiffs are purported to be "exotic dancers" and allege that this Ordinance has resulted in the following impairments of their federal constitutional rights:
(1) equal protection of the laws;
(2) impairment of the obligations of contracts between plaintiffs and their employer;
(3) impairment of plaintiffs' First Amendment rights as assured to them against state impairment via the Fourteenth Amendment;
(4) a taking of property without due process of law; and
(5) apparently, although it is not clear, a denial of due process in that the ordinance is vague and ambiguous.
The remaining claims are either claims under state law which it is not proper for this Court to decide, pursuant to its findings later expressed, or claims clearly not framed under any alleged federal constitutional protection. Each distinct issue above will be hereafter discussed.
Plaintiffs' claims in the equal protection area under the Fourteenth Amendment seem to rest upon two assertions. The first is that plaintiffs cannot now dress as "people in other public places or on the street or as customers in the place of their employment do." The second assertion presumably falling under this constitutional provision is that the ordinance "denies plaintiffs the right to appear in a manner which might lawfully be shown in moving pictures or still photos or as might be done in any other place in Nebraska or in the United States." In light of this Court's determination of the First Amendment issue later in this opinion, the purported rights asserted here are not "fundamental rights" which require the state to have a compelling interest for creating this specific classification. The Court perceives, as fully discussed hereafter, that a reasonable basis exists for this classification, which is all that is required of such legislation. See, e. g., Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L. Ed. 369 1911.
Assuming plaintiffs were required under their contracts with their employer, H. and W. Enterprises, to dance "topless", as opposed to there merely being a higher rate of compensation if they did so, plaintiffs cannot complain that a valid exercise of the city's police power has impaired the obligation of their contracts. It should be noted that no one has a vested interest or right to require continuance of the law in the same vein as the time they enter into a contract. Implied into the contract at its inception is the provision that, should the law change to prohibit the activity set out therein, the contract will yield to the law, if it is a valid exercise of the state's police power. See, e. g., Veix v. Sixth Ward Building and Loan Association, 310 U.S. 32, 60 S.Ct. 792, 84 L.Ed. 1061 1940.
This Court does not understand how any activity or conduct could not be classified as "expression" or "speech" if the dancing here controlled by the Ordinance was so classified. The case most often asserted as authority for the speech via conduct argument is Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 1969. The conduct involved in that case was the wearing of a black armband by several high school students in protest of the war in Vietnam and mourning the death of American soldiers in that war. The United States Supreme Court majority recognized that the conduct there involved was expression in the true sense of the word and "closely akin to `pure speech' * * *." That conduct was intended to, and did, convey an opinion on a matter of grave public concern.
However, the Court can conceive of no expression of opinion or communication of information involved in topless dancing. The Court recognizes the recent decision of Schacht v. United States, 398 U.S. 58, 90 S.Ct. 1555, 26 L.Ed.2d 44 1970, which recognized that an anti-war theatrical presentation was within the protection of the First Amendment. There, once again, the conduct involved the expression of an opinion upon a topic of vital public concern. The statute attacked aimed directly at the expression involved. The Schacht case is distinguishable, as is Tinker, supra, for those reasons.
The Court went on to assume, for the purposes of the remainder of the decision, that O'Brien's burning of his draft card contained sufficient communicative elements of expression to bring it within the protection of the First Amendment. The present case is peculiarly devoid of communicative elements and this Court is not willing to expand the definition of speech far beyond that evidenced in the decisions heretofore rendered by the United States Supreme Court. The warning against such expansion amply manifested itself in the above-quoted language of the O'Brien case.
But, even should this Court assume, as was done in O'Brien, that there was sufficient elements of expression within the conduct of topless dancing, the application of the stringent First Amendment test enunciated in O'Brien would not be applicable.
In the 1966 decision of Ginzburg v. United States, 383 U.S. 463, 474, 86 S. Ct. 942, 949, 16 L.Ed.2d 31, 40 the United States Supreme Court majority, writing through Mr. Justice Brennan, stated "that commercial activity, in itself, is no justification for narrowing the protection of expression secured by the First Amendment."
In 1942, the decision of Valentine v. Chrestensen, 316 U.S. 52, 62 S.Ct. 920, 86 L.Ed. 1262, held as follows:
This court has unequivocally held that the streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that, though the states and municipalities may appropriately regulate the privilege in the public interest, they may not unduly burden or proscribe its employment in these public thoroughfares. We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising. (Emphasis added)
At first blush, Chrestensen appears to have fallen by the wayside, considering the language of Ginzburg. But that impression is defective, largely based upon the confusion of two separate concepts which strike the mind as being the same thing.
The theory disclosed in Ginzburg, supra, has its genesis in cases such as New York Times Co. v. Sullivan, 376 U. S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 1964. The Times case is, of course, the sire of a now broadly-expanded doctrine relating to the law of defamation and its collision with the First Amendment, but it clearly delineates the distinction between the "commerical activity" theory of cases such as Ginzburg and the "purely commercial advertisement" theory derived from Chrestensen.
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