J.L. Spoons, Inc. v. Dragani

• Decision Date: 15 August 2008
• Docket Number: No. 07-3178.,07-3178.
• Citation: 538 F.3d 379
• Parties: J.L. SPOONS, INC., Plaintiff-Appellee, v. Nancy J. DRAGANI, Acting-Director, Ohio Department of Safety, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

538 F.3d 379

J.L. SPOONS, INC., Plaintiff-Appellee, v. Nancy J. DRAGANI, Acting-Director, Ohio Department of Safety, et al., Defendants-Appellants.

No. 07-3178.

United States Court of Appeals, Sixth Circuit.

Argued: March 18, 2008.

Decided and Filed: August 15, 2008.

ARGUED: Robert J. Krummen, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. J. Michael Murray, Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellee. ON BRIEF; Robert J. Krummen, William P. Marshall, Charles E. Febus, Office of the Ohio Attorney General, Columbus, Ohio, for Appellants. J. Michael Murray, Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellee.

Before: RYAN, SILER, and COLE, Circuit Judges.

SILER, J., delivered the opinion of the court, in which RYAN, J., joined. COLE, J. (pp. ___ - ___), delivered a separate dissenting opinion.

OPINION

SILER, Circuit Judge.

Plaintiffs, a group of strip club owners in Ohio, challenged Ohio Liquor Control Commission Rule 52 on First Amendment grounds. Enacted in 2004, Rule 52 provided that an establishment holding a liquor permit may not knowingly or willfully allow nudity or sexual activity on its premises. The district court granted plaintiffs a temporary injunction against enforcement of Rule 52. Later, it declared that parts of Rule 52 were unconstitutionally overbroad and it permanently enjoined their enforcement anywhere in Ohio. Defendants now appeal, arguing that Rule 52 is constitutional. We hold that Rule 52 is not overbroad and we REVERSE.

BACKGROUND

The strip club owners challenge §§ (A)(2), (B)(2), and (B)(3) of revised Rule 52. The challenged sections read as follows:

(A) Definitions as used in this rule:

(2) "Nudity" means the showing of the human male or female genital, pubic area or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering of any part of the nipple and/or areola; the exposure of any device, costume, or covering which gives the appearance of or simulates the genitals, pubic hair, natal cleft, perineum, anal region, or pubic hair region; or the exposure of any device worn as a cover over the nipples and/or areola of the female breast, which device simulates and gives the realistic appearance of the nipples and/or areola.

(B) Prohibited activities: no permit holder, his agent, or employee shall knowingly or willfully allow in and upon his licensed permit premises any persons to:

(2) Appear in a state of nudity;

(3) Engage in sexual activity as said term is defined in ORC Chapter 2907.

Sexual activity means "sexual conduct or sexual contact, or both." ORC Chapter 2907. The Ohio Revised Code defines "sexual conduct" as:

vaginal intercourse between a male and female, anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal cavity of another. Penetration, however slight, is sufficient to complete vaginal or anal intercourse.

"Sexual contact" is defined as "any touching of an erogenous zone of another, including without limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the purpose of sexually arousing or gratifying either person." ORC Chapter 2907.

In July 2000, the district court permanently enjoined enforcement of several sections of old Rule 52¹, finding them invalid under the First and Fourteenth Amendments. As a result, the Ohio Liquor Control Commission ("the Commission") commenced proceedings for the enactment of a new version of Rule 52. In September 2003, the Commission received evidence and testimony regarding the validity of proposed new language for Rule 52. At this hearing, Mark Anderson, Executive Director of the Commission, testified that the earlier version of Rule 52 had been rescinded and that all of the filing requirements imposed by state law for the new version of Rule 52 had been met.

The Commission heard extensive testimony from Bruce Taylor, an attorney from Fairfax, Virginia. Throughout his career he prosecuted vice crimes, including obscenity, prostitution, and liquor violations. He spoke at length about his understanding of precedent in this area and the constitutionality of liquor regulations. He testified that "nude dancing does contribute to its own types of secondary effects and to a greater degree than other liquor bars that don't have nude dancing." Specifically, prostitution, drug trafficking, and fights occur more frequently in and around bars that allow nude dancing than those that do not permit nude dancing. Taylor expressed his opinion that the language under consideration for the new Rule 52 would be held constitutional by the courts.

The new version of Rule 52 was finalized and filed on February 9, 2004. It was scheduled to take effect on February 20, 2004. On February 20, the strip club owners filed suit after learning of plans for enforcement agents to investigate strip clubs to determine compliance with Rule 52. They claimed that the Rule 52 provisions concerning "nudity" and "sexual activity" were broadly restrictive of protected expression. They sought a declaratory judgment that these sections were unconstitutional and a permanent injunction barring their enforcement. The district court granted the request for a temporary restraining order and scheduled a preliminary injunction hearing.

At the preliminary injunction hearing, the plaintiffs called Dr. Judith Hanna, Ph. D., a cultural anthropologist and sociologist who researches and writes about arts, dance, and society. She stated that exotic and erotic dance has artistic value and conveys a range of potential messages. She also discussed a variety of "mainstream" ballet, modern dance, and theater performances that allegedly involve types of nudity and sexual contact that could be prohibited by Rule 52. The club owners also presented testimony from Dr. Daniel Linz, Ph.D., a sociologist and psychologist, who stated that his research showed no positive correlation between the presence of liquor-serving establishments featuring nude or semi-nude dancing and the types of crimes cited by the Commission in support of its decision to adopt Rule 52. Dr. Linz stated that in some cases there was a negative correlation, meaning that nude dancing establishments actually decreased crime in the surrounding community.

The Commission then presented testimony from Scott Pohlman of the Ohio Department of Safety in support of Rule 52. He described numerous occasions where he personally observed illicit behavior in and around liquor-serving establishments that feature nude or semi-nude dancing. He stated that Rule 52 was needed to limit illicit behavior.

Following the hearing, the Commission agreed to refrain from enforcing Rule 52 until at least April 1, 2004, in order to grant the district court enough time to enter a ruling on the strip club owners' motion for a preliminary injunction. On April 1, the district court granted plaintiffs' motion for a preliminary injunction against the Commission. It enjoined the defendants from enforcing §§ (A)(2), (B)(2), and (B)(3) anywhere in Ohio. In January 2007, it granted plaintiffs a permanent injunction and declared §§ (A)(2), (B)(2), and (B)(3) unconstitutionally overbroad. The district court concluded that it could not sever the unconstitutional language from the regulation because §§ (A)(2), (B)(2), and (B)(3) were overbroad.

ANALYSIS

We review constitutional issues de novo. Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir.2005). We find that Rule 52 is a constitutional, content-neutral regulation of the undesirable secondary effects, including prostitution, drug trafficking, and assault, associated with nude dancing in an environment serving alcohol. It is not overbroad.

Pap's A.M.

Rule 52 is almost identical to the regulation upheld by the Supreme Court in City of Erie v. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). While Pap's A.M. involved a challenge on First Amendment freedom of expression grounds, not an overbreadth challenge, a discussion of Pap's A.M. is necessary. In Pap's A.M., the United States Supreme Court upheld a regulation making it "a summary offense to knowingly or intentionally appear in public in a `state of nudity.'" Id. at 283, 120 S.Ct. 1382. The regulation had wording and definitions very similar to Rule 52.

The Court began its analysis by stating that while being "in a state of nudity" is not an inherently expressive condition, nude dancing is expressive conduct and it falls within "the outer ambit" of the First Amendment's protection. Id. at 289, 120 S.Ct. 1382. To determine what level of scrutiny applies, a court must decide whether the state regulation is related to the suppression of expression. Id. If the governmental purpose is unrelated to suppression of expression, then the regulation must satisfy the less stringent standard from United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). Id. If, on the other hand, the government interest is related to the content of the expression, the regulation must be justified under a more demanding standard. Id.

The Court held that government restrictions on public nudity, such as the one passed by Erie, "should be evaluated under the framework set forth in O'Brien for content-neutral restrictions on symbolic speech." Id. If a law is a general prohibition on public nudity, then by its terms it regulates conduct alone, not speech. Id. at 289-90, 120 S.Ct. 1382. The ordinance at issue did not attempt to regulate the primary effects of expression, i.e., the effect of the audience watching nude dancing, but rather the secondary effects that impact the public health, safety and welfare. Id.

The regulation must pass muster under the O'Brien standard: (1) the regulation must be within...