Matney v. County of Kenosha

• Decision Date: 13 June 1996
• Docket Number: No. 95-2590,95-2590
• Citation: 86 F.3d 692
• Parties: Phil MATNEY and Satellite News and Video, Inc., Plaintiffs-Appellants, v. COUNTY OF KENOSHA, Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 692

86 F.3d 692

Phil MATNEY and Satellite News and Video, Inc., Plaintiffs-Appellants, v. COUNTY OF KENOSHA, Defendant-Appellee.

No. 95-2590.

United States Court of Appeals Seventh Circuit.

Argued Feb. 14, 1996.

Decided June 13, 1996.

Michael Null, Reed Lee, Deidre Baumann (argued), Null & Associates, Chicago, IL, for plaintiffs-appellants.

Raymond J. Pollen (argued), Michele M. Ford, Crivello, Carlson, Mentkowski & Steeves, Milwaukee, WI, for defendant-appellee.

Before COFFEY, FLAUM, and RIPPLE, Circuit Judges.

FLAUM, Circuit Judge.

Plaintiffs Satellite News and Video, Inc. ("Satellite") and Phil Matney brought suit in district court, seeking to have a Kenosha County, Wisconsin "open-booth" ordinance declared unconstitutional and to obtain an injunction prohibiting its enforcement. The ordinance requires that movie-viewing booths at "adult entertainment" establishments, such as the one owned by Satellite and patronized by Matney, be totally accessible from a public area and have at least one side totally open to a lighted public aisle. The district court granted summary judgment in favor of Kenosha County ("County") and the plaintiffs appeal. We affirm.

I.

Satellite owns and operates an "adult entertainment" business in Kenosha County, Wisconsin, which displays sexually explicit but non-obscene films and videotapes in small, single-person viewing booths. Each booth is equipped with a monitor connected to several videotape players. By depositing a token in a device located within each booth, patrons of Satellite can activate the monitors and choose one of the several videotapes or films offered. The video booths are specifically designed and built so that persons standing outside the booths cannot determine the content or the specific nature of the film being viewed. Phil Matney is a resident of Kenosha County and a patron of Satellite. Matney does not wish to have the content of the videos he views and listens to revealed to persons passing by the booths.

In 1992, the Kenosha County Board of Health issued regulation HD-1.01-1, which establishes standards for the construction and maintenance of booths, rooms, or cubicles available for the private viewing of "adult entertainment" at "adult-oriented" establishments. The stated purpose of the regulation is to preserve health, prevent the spread of AIDS and other communicable or sexually transmitted diseases, and prevent unsanitary, unsafe and unhealthy conditions. Specifically, the regulation states:

(1) PURPOSE. It is a lawful purpose of the Kenosha County Board of Health to enact rules and regulations as are necessary for the preservation of health and to prevent the spread of AIDS and other communicable or sexually transmitted diseases in Kenosha County. It has been found by localities throughout the State of Wisconsin, particularly Milwaukee, Racine, Waukesha, Delafield, and Kenosha, as well as communities around the country, that many adult-oriented establishments install movie viewing booths with doors in which patrons view adult-oriented videotapes, movies, films and other forms of adult entertainment, and that such booths have been and are being used by patrons to engage in sexual acts resulting in unsanitary, unhealthy and unsafe conditions in said booths and establishments. This regulation establishes standards for booth construction and maintenance in order to prevent the spread of AIDS and other communicable or sexually transmitted diseases.

The Board considered evidence from the sheriff's departments in Kenosha County and other communities in reaching its conclusion that activity occurring in booths at adult oriented establishments leads to unhealthy and unsanitary conditions and to the transmission of AIDS and other sexually transmitted and communicable diseases.

Under the regulation, adult entertainment viewing booths must be "totally accessible to and from aisles and public areas ... and shall be unobstructed by any door, lock, curtain, blind, or other control-type devices." HD-1.10-1(3)(a). Further, each booth "shall be separated from adjacent booths ... by a wall" and "shall have at least one side totally open to a public lighted aisle so that there is an unobstructed view at all times of anyone occupying the same." HD-1.10-1(3)(b). The regulation also speaks to the lighting in and around the booths as well as to the color, texture, and material of booth walls and floors. In addition, the regulation provides that only one individual occupy a booth at any time and that no occupant shall "engage in any type of sexual activity, cause any bodily discharge or litter while in the booth." HD-1.10-1(3)(c). The regulation does not attempt to restrict or control in any way the content of the adult videos shown.

Satellite received several citations for violating HD-1.10-1 and the County has threatened to continue enforcing the regulation, thereby prompting the instant litigation. Satellite and Matney's complaint alleged that the open booth regulation violates their First Amendment rights because it 1) impermissibly chills their "expressive privacy rights" by revealing the content of the protected expression they wish to disseminate and receive and 2) because it imposes a content-based financial burden on Satellite's protected expression. The plaintiffs also alleged that the regulation is not reasonably related to a legitimate government interest. The County moved for summary judgment and the district court granted its motion, finding that the proper question was whether the ordinance was a valid time, place, and manner restriction, which the court answered in the affirmative. The court also concluded that there is no "expressive privacy right" to view adult entertainment at public establishments in seclusion and anonymity and, additionally, that the regulation did not impose a constitutionally impermissible financial burden on Satellite.

II.

Satellite and Matney contend on appeal that the district court erred in granting the County summary judgment on their First Amendment claims. ¹ We review a district court's grant of summary judgment de novo. Hedberg v. Indiana Bell Telephone Co., Inc., 47 F.3d 928, 931 (7th Cir.1995). Summary judgment should be granted when the pleadings and supplemental materials present no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Although we draw all reasonable inferences in favor of the party opposing a motion for summary judgment, this party may not simply rest on its pleadings or on mere conclusory allegations to avoid summary judgment; rather the non-moving party must come forward with evidence to show the existence of each element of its case on which it will bear the burden at trial. Hedberg, 47 F.3d at 931; Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1317 (7th Cir.1995). If no reasonable jury could find in favor of the party opposing the motion, it must be granted. Hedberg, 47 F.3d at 931.

A.

The district court was correct in noting that the proper constitutional measure of an "open-booth" regulation is whether the regulation constitutes a valid time, place, or manner restriction. See Berg v. Health and Hosp. Corp. of Marion County, Ind., 865 F.2d 797 (7th Cir.1989). In Berg, we confronted similar challenges to an ordinance analogous to the Kenosha County regulation at issue here and concluded that the ordinance was a constitutional manner restriction. Id. at 802-03. In fact, courts around the nation have consistently upheld open booth regulations and ordinances in the face of First Amendment challenges, finding them to be valid time, place, and manner restrictions. See Wall Distributors, Inc. v. City of Newport News, 782 F.2d 1165 (4th Cir.1986); Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243 (9th Cir.1982); Doe v. City of Minneapolis, 898 F.2d 612 (8th Cir.1990); Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir.1991); Suburban Video, Inc. v. City of Delafield, 694 F.Supp. 585 (E.D.Wis.1988); Broadway Books, Inc. v. Roberts, 642 F.Supp. 486 (E.D.Tenn.1986); Libra Books, Inc. v. City of Milwaukee, 818 F.Supp. 263 (E.D.Wis.1993). Today we add another case to this already long line of authority.

In Ward v. Rock Against Racism, 491 U.S. 781, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), the Supreme Court set forth the appropriate standard for reviewing limitations on the time, place, or manner of speech. It held that the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: 1) are justified without reference to the content of the regulated speech; 2) are narrowly tailored to serve a significant governmental interest, and 3) leave open ample alternative channels for communication of the information. Id. at 791, 109 S.Ct. at 2753-54 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984)); see also Bamon, 923 F.2d at 473; Doe, 898 F.2d at 616-17. Thus, we analyze the Kenosha ordinance using the Ward factors.

The plaintiffs concede, with good reason, that the Kenosha County open booth regulation is content neutral. As the Ward Court explained, "[t]he principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791, 109 S.Ct. at 2754 (emphasis added). The controlling consideration is the government's purpose in enacting the regulation. Id. "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Id.

In this case, the plain language of the regulation makes clear that it was passed for the...