Jane Doe v. Landry

• Decision Date: 16 November 2018
• Docket Number: No. 17-30292,17-30292
• Citation: 909 F.3d 99
• Parties: Jane DOE I; Jane Doe II; Jane Doe III, Plaintiffs - Appellees v. Jeff LANDRY, Attorney General for the State of Louisiana, Intervenor - Appellant Juana Marine-Lombard, in Her Official Capacity as Commissioner, Louisiana Office of Alcohol and Tobacco Control, Defendant - Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

909 F.3d 99

Jane DOE I; Jane Doe II; Jane Doe III, Plaintiffs - Appellees
v.
Jeff LANDRY, Attorney General for the State of Louisiana, Intervenor - Appellant

Juana Marine-Lombard, in Her Official Capacity as Commissioner, Louisiana Office of Alcohol and Tobacco Control, Defendant - Appellant

No. 17-30292

United States Court of Appeals, Fifth Circuit.

FILED November 16, 2018

Harry A. Rosenberg, Esq., Senior Attorney, Lindsay J. Calhoun, Jeremy Thomas Grabill, Phelps Dunbar, L.L.P., New Orleans, LA, for Plaintiffs-Appellees.

Renee G. Culotta, Esq., Elizabeth Harper Emmett, Max L. Schellenberg, Esq., Frilot, L.L.C., New Orleans, LA, for Defendant-Appellant.

Before STEWART, Chief Judge, CLEMENT, and SOUTHWICK, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

No member of the panel nor judge in regular active service requested that the court be polled on rehearing en banc. The petition for rehearing en banc is therefore DENIED. See FED . R. APP . P. and 5th Cir. R. 35. Treating the petition for rehearing en banc as a petition for panel rehearing, the petition is GRANTED. We withdraw our prior opinion, 905 F.3d 290, and substitute the following.

In 2016, Louisiana amended two statutes to require that entertainers on premises licensed to serve alcohol and whose breasts or buttocks are exposed to view be 21 years of age or older. Three erotic dancers who at the time were aged 18, 19, and 20 filed a complaint against the state official responsible for the Act’s enforcement, claiming the Act violated various provisions of the United States and Louisiana Constitutions. The district court concluded that the plaintiffs were likely to succeed on the merits of their claims that the Act is unconstitutionally overbroad and vague. It left other issues for later resolution but issued a preliminary statewide injunction barring enforcement of the Act. The State brought this interlocutory appeal. We conclude that on this facial challenge, the Act is neither unconstitutionally overbroad nor

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vague. Consequently, we VACATE the injunction. We REMAND for further proceedings consistent with our ruling.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit involves Act No. 395 from the 2016 regular session of the Louisiana legislature. The Act identically amended two Louisiana statutes that regulate activities on premises licensed to serve alcohol, adding a requirement that certain performers be at least 21 years old:

Subject to the provisions of Subsection D of this Section, entertainers whose breasts or buttocks are exposed to view shall perform only upon a stage at least eighteen inches above the immediate floor level and removed at least three feet from the nearest patron and shall be twenty-one years of age or older .

LA. REV. STAT. §§ 26:90(E), 26:286(E) (2016) (emphasis added). The only significant difference between the two statutes is that Section 26:90 regulates those who sell or serve typical alcoholic beverages, while Section 26:286 regulates those who sell or serve beverages of low-alcoholic content. Compare § 26:90(A)(1)(a), with § 26:286(A)(1)(a). Even though the pre-2016 version of Subsection E did not refer to age at all, the parties agree that erotic dancers previously had to be at least 18 years old. See §§ 26:90(E), 26:286(E) (2010).

We will give more detail later, but for now we simply point out that neither before nor after the Act became effective were erotic dancers permitted to be completely nude. That is because another statutory provision limits what may be "exposed to view;" a dancer must at least be wearing, to use the terms of this particular art, G-strings and pasties. See §§ 26:90(D)(3) ; 26:286(D)(3). One of the issues in the case is how much covering is needed beyond that minimum for performers who are under age 21.

The Act became effective August 1, 2016. The Louisiana Office of Alcohol and Tobacco Control ("ATC") soon began enforcing the Act’s age requirement throughout Louisiana, except in New Orleans. It planned to begin enforcing the age requirement there on October 1, 2016.

In September 2016, three female erotic dancers who were at least 18 years old but not yet 21 filed a complaint in the United States District Court for the Eastern District of Louisiana against Juana Marine-Lombard in her official capacity as Commissioner of the ATC. The plaintiffs sought injunctive and declaratory relief under 42 U.S.C. §§ 1983 and 1988, claiming that the Act facially violated the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 3, and 7 of the Louisiana Constitution.

Plaintiff Jane Doe I was 20 years old when the complaint was filed. She is a resident of New Orleans and is employed as an erotic dancer in that city. Jane Doe I alleged she began dancing at age 18, "highly values the scheduling control her vocation allows her, and ... enjoys expressing herself through dancing." In addition, she contended that as an erotic dancer, she earns enough money to meet her financial obligations and to save for her retirement, which she was unable to do prior to working as an erotic dancer. Jane Doe I asserted that in October 2016, when the Act was to be enforced in New Orleans, she would no longer be permitted to be employed as an erotic dancer.

Jane Doe II was 18 years old when the complaint was filed. She is a resident of Baton Rouge and a student at Louisiana State University. She claimed to be entirely

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independent, as both of her parents died of cancer. Jane Doe II began working as an erotic dancer in June 2016 "in order to finance her college education and living expenses." She desired "to save enough money over the summer through her work as a dancer so that at the start of the school semester, she could concentrate fully on her studies."

Jane Doe II stopped performing as an erotic dancer as of the Act’s effective date. She began working as a "shot girl," who is a server that circulates throughout the establishment and offers patrons shots of alcohol for purchase. She contended that her income decreased by more than 50 percent when she stopped being a dancer and began working as a shot girl. Jane Doe II also argued that because of the Act she lost the ability to express herself through erotic dance.

Jane Doe III was 19 years old when the complaint was filed. She is a resident of New Orleans and began working as an erotic dancer in September 2015. She was employed as an erotic dancer in Baton Rouge from January 2016 until the Act went into effect. Jane Doe III contended that on the date the Act became effective in Louisiana, she was forced to stop working as an erotic dancer and began working as a shot girl at the club where she formerly danced. Her income also allegedly dropped by more than half.

The plaintiffs moved for a preliminary injunction, requesting that the district court enjoin Commissioner Marine-Lombard from enforcing the Act. On September 30, 2016, the district court entered a temporary restraining order prohibiting Commissioner Marine-Lombard from enforcing the Act anywhere within the state of Louisiana.

On November 3, 2016, Jeff Landry intervened in the lawsuit in his official capacity as Attorney General for the state of Louisiana. Commissioner Marine-Lombard and Attorney General Landry (collectively, "the State") then filed separate responses to the plaintiffs’ motion for preliminary injunction. The district court treated the separate responses as a single opposition because they addressed separate arguments that the plaintiffs had asserted in their motion.

The district court determined that Act 395 was overbroad and vague under the federal Constitution. The remainder of the plaintiffs’ claims were left for later resolution. The court enjoined the enforcement of the Act. The State timely brought an interlocutory appeal, citing 28 U.S.C. § 1292(a)(1), which allows appeals from the grant of injunctions. The district court later instructed its clerk to stay and administratively close the case pending a resolution of the appeal.

DISCUSSION

We review a district court’s decision to grant a preliminary injunction for abuse of discretion, but we review its findings of fact for clear error and its conclusions of law de novo . Jefferson Cmty. Health Care Ctrs, Inc. v. Jefferson Par. Gov’t , 849 F.3d 615, 624 (5th Cir. 2017). Plaintiffs are entitled to a preliminary injunction if they show (1) a substantial likelihood that they will prevail on the merits of their claims, (2) a substantial threat that they will suffer an irreparable injury if the injunction is not granted, (3) their threatened injury outweighs the threatened harm to the State, and (4) the public interest will not be disserved if the preliminary injunction is granted. Lake Charles Diesel, Inc. v. Gen. Motors Corp. , 328 F.3d 192, 195–96 (5th Cir. 2003).

This case comes to us with a few uncontested premises. The parties do not dispute that "nude dancing is not without

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its First Amendment protections from official regulation." Schad v. Borough of Mount Ephraim , 452 U.S. 61, 66, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981). "[N]ude dancing of the type at issue here is expressive conduct, although ... it falls...