Koppinger v. City of Fairmont

• Decision Date: 26 November 1976
• Docket Number: No. 46154,46154
• Citation: 311 Minn. 186,248 N.W.2d 708
• Parties: Matthew KOPPINGER, d.b.a. Safari Lounge, Appellant, v. CITY OF FAIRMONT, Respondent.
• Court: Minnesota Supreme Court

Page 708

248 N.W.2d 708

311 Minn. 186

Matthew KOPPINGER, d.b.a. Safari Lounge, Appellant, v. CITY OF FAIRMONT, Respondent.

No. 46154.

Supreme Court of Minnesota.

Nov. 26, 1976.

Syllabus by the Court

1. A state or municipality has a valid interest in prohibiting public nudity. An ordinance regulating public nudity must be narrowly drafted, however, for nudity in the proper context may be a form of expression protected by the First Amendment. The ordinance in question was not so narrowly drafted and therefore must be overturned.

2. Plaintiff has standing to raise this First Amendment objection, even though the challenged ordinance could constitutionally be applied to him, since the overbreadth of the ordinance is both real and substantial.

Chadwick & Johnson and John R. Bridell and Mark J. Condon, Minnesota Civil Liberties Union, and Stanley Nathanson, Law Student, Minneapolis, for appellant.

Johnson, Berens & Wilson, and Richard D. Berens, Fairmont, for respondent.

Heard and considered en banc.

KELLY, Justice.

Plaintiff, Matthew Koppinger, owner and operator of the Safari Lounge in the city of Fairmont, Minnesota, appeals from a judgment dismissing his attempt to have a certain ordinance of that city declared unconstitutional on its face. We reverse.

Plaintiff, who owns a 3.2 beer bar and adjoining bowling alley, employs male and female performers to dance to accompanying prerecorded music for the entertainment of customers in his 3.2 beer establishment. Female performers often dance topless or completely nude. Male performers on occasion have danced completely nude. The performers, when dancing in the nude, are clearly visible to patrons of the 3.2 beer establishment, but not to patrons of the bowling facility. Both the beer establishment and the bowling facility are licensed under Fairmont City Code, § 4.15 and §§ 4.30 to 4.33.

Plaintiff brought the instant action seeking a declaratory judgment that a city ordinance adopted after a special election on June 25, 1974, was unconstitutional and an injunction against the enforcement of that ordinance. The ordinance in pertinent part reads as follows:

'ORDINANCE NO. 29

'AN ORDINANCE ADDING A NEW SECTION 6.63 TO THE CITY CODE TO PROHIBIT NUDITY AND THE USE OF OBSCENE WORDS IN PUBLIC BUSINESS ESTABLISHMENTS.

'The City of Fairmont does ordain:

'Section 1. That a new section 6.63 be added to the Fairmont City Code which shall read as follows:

'Section 6.63 Publicly displaying nudity in public business establishments prohibited.

'Subd. 1. Definitions.

'As used in this section, the following terms shall mean as follows:

'(a) 'Nudity' means the showing of the post-pubertal human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or the showing of a post-pubertal female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.

'(b) 'Sado-masochistic abuse' means scenes involving a person or persons, any of whom are nude, clad in undergarments or in sexually revealing costumes, and who are engaged in activities involving the flagellation, torture, fettering, binding or other physical restraint of any such persons.

'(c) 'Sexual conduct' means acts of masturbation, homosexuality, sexual intercourse, or physical contact with a person's unclothed genitals, public area, buttocks or, if such a person be a female, her breast.

'(d) 'Sexual excitement' means the condition of the human male or female genitals or the breasts of the female when in a state of sexual stimulation or the sensual experience of humans engaging in or witnessing sexual conduct or nudity.

'(e) 'Exhibit publicly' means the exposing or exhibiting of any portion of a person's body in such a manner that it may be readily seen in any place frequented by the public governed by Chapter 4 of the City Code of the City of Fairmont or in any public place.

'Subd. 2. Violations.

'It is unlawful for any person to knowingly:

'(a) Exhibit publicly or permit to be exhibited publicly any portion of the human body in such a manner as to constitute nudity as described herein or in such a manner as would depict Sado-masochistic abuse, sexual conduct or sexual excitement.

'(b) Permit any exhibition described in this section on premises owned, rented or operated by him.

'Section 2. That this ordinance shall be in force and take effect thirty (30) days from and after its passage and publication or posting in accordance with Section 3.08 of the Charter of the City of Fairmont.'

Chapter 4 of the Fairmont City Code, referred to in § 6.63, subd. 1(e), above, is a business regulation section governing licensing and prohibiting certain practices in pool halls, bowling alleys, public dancing places, places selling tobacco, and on- and off-sale beer and liquor establishments. Plaintiff assailed § 6.63, subds. 1(a, e) and 2(a, b), as violative of several provisions of the United States and Minnesota Constitutions, most notably those provisions dealing with freedom of speech. ¹ The district court denied relief, and plaintiff appealed to this court. Subsequently, the city council adopted Ordinance No. 47, amending Ordinance No. 29 by deleting from § 6.63, subd. 1(e), the words 'or in any public place.' While this change narrows the scope of the ordinance considerably, it does not eliminate plaintiff's constitutional objections.

1. One issue is dispositive of this appeal: Is the ordinance unconstitutional on its face as an overbroad intrusion into freedom of expression?

Plaintiff's central attack on the Fairmont ordinance is based on alleged overbroad intrusion by the ordinance into freedom of expression. ² The thrust of that attack is that nudity may be an integral part of protected forms of expression, e.g., dance performances, theatrical performances, etc. Therefore, plaintiff argues, an ordinance may not sweep broadly over these protected forms of expression under the guise of prohibiting certain conduct or forms of expression which might not be protected.

The response to plaintiff's argument is that nudity is not protected expression, but conduct, which the city has a substantial interest in regulating via its police power. See, State v. Ray, 292 Minn. 104, 193 N.W.2d 315 (1971). Nudity was a traditional common-law crime, an act malum in se. Le Roy v. Sidley, 82 Eng.Reprint 1036 (1663); Truet v. State, 3 Ala.App. 114, 57 So. 512 (1912). The state has a valid interest in prohibiting public nudity. As the Arizona Supreme Court put it:

'* * * The evil sought to be suppressed is not only the infliction of nudity upon a beholder's moral sensibilities, but also the public degradation and debasement of the individual exposed.' Yauch v. State, 109 Ariz. 576, 578, 514 P.2d 709, 711 (1973).

In addition to these moral interests, the city may have further valid interests in preventing public commercial exploitation of sex and acts of rape, prostitution, and other disruptive and disorderly conduct attendant thereto. See, California v. LaRue, 409 U.S. 109, 93 S.Ct. 390, 34 L.Ed.2d 342 (1972).

Unquestionably, both the foregoing arguments have merit, and the decision in any case must follow from a sensitive balancing of the interests in regulation and in freedom of expression. An appropriate starting point for such a balancing is the framework created for viewing conduct/speech issues in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). In O'Brien the Supreme Court upheld the conviction of a war protester for burning his Selective Service registration certificate on the steps of the South Boston courthouse. He had been convicted under a Federal statute that provided that an offense was committed by any person 'who forge(d), alter(ed), knowingly destroy(ed), knowingly mutilate(d), or in any manner change(d)' the certificate. O'Brien had argued that his act of burning his draft card constituted 'symbolic speech' and was entitled to First Amendment protection. The court emphatically rejected that argument in the following terms (391 U.S. 376, 88 S.Ct. 1678, 20 L.Ed.2d 679):

'We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms. To characterize the quality of the governmental interest which must appear, the Court has employed a variety of descriptive terms: compelling; substantial; subordinating; paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find that the 1965 Amendment to § 12(b)(3) of the Universal Military Training and Service Act meets all of these requirements, and consequently that O'Brien can be constitutionally convicted for violating it.' (Italics supplied.)

It is clear from the court's holding and language that hybrids of speech and action are subject to state regulation when important state interests justify regultion of the action component and such regulation may be...