Jameson v. Commonwealth, No. 2003-CA-000967-DG (KY 8/6/2004)
| Decision Date | 06 August 2004 |
| Docket Number | No. 2003-CA-000967-DG.,2003-CA-000967-DG. |
| Parties | Edward Green JAMESON, Appellant v. COMMONWEALTH of Kentucky, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Emily Ward Roark, Paducah, Kentucky, Briefs and Oral argument for Appellant.
Daniel Y. Boaz, McCracken County Attorney, Christopher Shea Nickell, Asst. County Attorney, Paducah, Kentucky, Brief for Appellee.
Christopher Shea Nickell, Asst. County Attorney, Paducah, Kentucky, Oral argument for Appellee.
Before: BUCKINGHAM, JOHNSON and KNOPF, Judges.
Edward Green Jameson has petitioned for review from an order of the McCracken Circuit Court entered on April 10, 2003, which affirmed an order of the McCracken District Court denying Jameson's motion to declare McCracken County Ordinance No. 2000-4 unconstitutional and to dismiss the criminal complaint against him.1 Having concluded that recent case law from the Supreme Court of the United States requires that this matter be remanded for further fact-finding, but that the McCracken District Court did not otherwise err by denying Jameson's motion, we affirm in part, vacate in part and remand for further proceedings.
McCracken County Ordinance No. 2000-4 became effective on April 26, 2000.2 The ordinance provided for the "regulation of sexually oriented businesses and their employees." Among other things, the ordinance classified certain establishments as falling within the definition of what was termed an "Adult Cabaret."3 The ordinance restricted the times during which an adult cabaret could remain open for business,4 and provided for the regulation of any "live performances" that might take place within the establishment. According to the terms of the ordinance, it was aimed at controlling the alleged negative, secondary effects associated with sexually-oriented businesses, e.g., increased crime rates and decreased property values in and around the areas where such businesses are located.
In August 2000 Jameson was employed as a manager of Regina's II5 in Paducah, McCracken County, Kentucky. There is no dispute that Regina's II, which featured live exotic dancing, was an "Adult Cabaret" as defined by Ordinance No. 2000-4. On August 19, 2000, Jameson was criminally charged by a member of the McCracken County Sheriff's Department for various violations of Ordinance No. 2000-4. Specifically, Jameson was cited for operating past the 1:00 a.m. mandatory closing time, for permitting the dancers to appear totally nude while performing, and for allowing physical contact between the dancers and the patrons.
On October 31, 2000, Jameson filed a motion with the McCracken District Court, asking the court to declare Ordinance No. 2000-4 unconstitutional on its face and as applied to him, and to dismiss the criminal complaint against him. Jameson argued that Ordinance No. 2000-4 violated several provisions of the United States Constitution and the Kentucky Constitution. Jameson argued, inter alia, that Ordinance No. 2000-4 as applied to him imposed an impermissible burden on his right to freedom of expression as guaranteed by the First Amendment to the United States Constitution and Section 1 of the Kentucky Constitution.
Approximately one year later, on October 18, 2001, an evidentiary hearing on the matter was held before the district court. During this hearing, Jameson introduced evidence in an attempt to show that the alleged negative, secondary effects associated with sexually-oriented businesses were not present in and around the area of Regina's II. Jameson argued that this evidence supported his claim that Ordinance No. 2000-4 was not enacted to combat these secondary effects, but that it was instead enacted specifically to prohibit nude dancing and related forms of expression.
On May 31, 2002, the district court entered an order denying Jameson's motion to declare Ordinance No. 2000-4 unconstitutional and to dismiss the criminal complaint against him. On July 2, 2002, Jameson entered a conditional plea of guilty to the various charges against him, while preserving his right to appeal the denial of his motion to declare the ordinance unconstitutional. Jameson was sentenced to 90 days in jail, which was probated for a period of two years, and fined $500.00.
Jameson appealed to the McCracken Circuit Court and once again argued that Ordinance No. 2000-4 as applied to him was an unconstitutional restraint on his freedom of expression. On April 10, 2003, the circuit court entered an order affirming the district court's denial of Jameson's motion to declare Ordinance No. 2000-4 unconstitutional. Jameson subsequently filed a motion seeking discretionary review with this Court, which was granted on October 14, 2003.
Jameson raises several arguments on appeal. He first claims that Section VII(b) of the ordinance, which is among those provisions regulating live performances, is" a content-based regulation of speech," and must therefore be subjected to strict judicial scrutiny. Section VII(b) of the ordinance states in full as follows:
No person shall appear nude or in a state of nudity while engaged in any live performance on the premises of any sexually oriented business.6
"Nude" or "state of nudity" is further defined in Section II (15) as:
[T]he showing of the human male or female genitals, pubic area, vulva, anus, anal cleft or cleavage 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, or the showing of the covered male genitals in a discern[i]bly turgid state.
Jameson claims that Section VII(b)'s purpose "is specifically and solely to ban nude dancing in sexually oriented businesses; a specific type of speech at a specific type of establishment." Hence, Jameson argues that this provision represents a regulation of the particular message involved and that it must therefore be subjected to strict judicial scrutiny.7 Thus, Jameson contends that the district court erred by not analyzing Section VII(b) pursuant to a strict scrutiny standard. While we agree that Section VII(b) is a content-based regulation of speech, we do not agree that strict scrutiny is the correct standard to be used to determine the constitutionality of this provision.
As an initial matter, we note that exotic dancing is generally considered to be a form of expression which enjoys at least some protection under the First Amendment. In Barnes v. Glen Theatre, Inc.,8 Chief Justice Rehnquist in writing for the plurality stated that "nude dancing of the kind sought to be performed here is expressive conduct within the outer perimeters of the First Amendment, though we view it as only marginally so." In the case sub judice, the Commonwealth has conceded that, from a factual standpoint, the type of exotic dancing featured at Regina's II fell within this particular realm of protected speech.
Thus, since the First Amendment is in fact implicated, we turn to determining whether strict scrutiny analysis is required. The Supreme Court of the United States has provided lower courts with two somewhat differing, yet overlapping standards by which to determine the constitutionality of regulations specifically targeting sexually-oriented businesses. Due to the complexity of these standards, a review of the development of the Supreme Court's jurisprudence in this area is in order.
We first turn to the Supreme Court's treatment of zoning ordinances which specifically target sexually-oriented businesses. In Young v. American Mini Theatres, Inc.,9 the Supreme Court considered a First Amendment challenge to a portion of the City of Detroit's zoning ordinance which required that "adult" theaters "not be located within 1,000 feet of any two other `regulated uses' or within 500 feet of a residential area" [footnote omitted].10 Although a majority of the justices could not agree on a single rationale, a majority of the Court did recognize that even though the adult theaters were singled out under the zoning laws because of the content of the films that were shown in those establishments, the city could constitutionally regulate the businesses in that manner since the purpose was to control the negative, secondary effects associated with such establishments.11
Approximately ten years later, the Supreme Court upheld a similar zoning ordinance in City of Renton v. Playtime Theatres, Inc.12 The Court invoked a three-step analysis in upholding the city's zoning ordinance. First, since the ordinance did "not ban adult theaters altogether," but merely regulated where the theaters could be located, "[t]he ordinance [could be] properly analyzed as a form of time, place, and manner regulation."13 The Court next asked whether the ordinance was content-based or content-neutral. If the Court determined that the ordinance was content-neutral, it would be upheld "so long as [it was] designed to serve a substantial governmental interest and [did] not unreasonably limit alternative avenues of communication."14
In determining whether the ordinance was content-based or content-neutral, the Court noted that the ordinance did "not appear to fit neatly into either the `content-based' or the `content-neutral' category."15 However, in keeping with its prior decision in American Mini Theatres, the Court held that even though "the ordinance treats theaters that specialize in adult films differently from other kinds of theaters[,]" the ordinance was nonetheless "completely consistent with our definition of `content-neutral' speech regulations[.]"16 Therefore, the Court held that the ordinance, which was aimed at combating the negative, secondary effects associated with sexually-oriented businesses, would be subjected to review under the standards reserved for "content-neutral" time, place and manner regulations.17 Finally, in the third...
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