MD II Entertainment, Inc. v. City of Dallas, Tex.
Decision Date | 11 August 1994 |
Docket Number | No. 93-1703,93-1703 |
Citation | 28 F.3d 492 |
Parties | MD II ENTERTAINMENT, INC., d/b/a The Fare West, Plaintiff-Appellee-Cross-Appellant, v. CITY OF DALLAS, TEXAS, et al., Defendants-Appellants-Cross-Appellees. |
Court | U.S. Court of Appeals — Fifth Circuit |
Sangeeta S. Kuruppillai, Asst. Co. Atty., Dallas, TX, for appellants.
Steven H. Swander, Ft. Worth, TX, for appellee.
Appeals from the United States District Court for the Northern District of Texas.
Before WISDOM and JONES, Circuit Judges, and COBB, * District Judge.
In this case we must decide whether the restrictions imposed by the defendant/appellant, the City of Dallas ("the City"), on the advertising of "Class D Dance Halls" are consistent with the First and Fourteenth Amendments. We conclude, as did the district court, that the restrictions imposed by the City are not allowable under the First Amendment, and accordingly, we AFFIRM the district court's summary judgment for the plaintiff. We also AFFIRM the district court's judgment on the plaintiff's cross-appeal.
On January 22, 1992, the City amended its Dance Halls Ordinance to create a new category of business called a "Class D Dance Hall". The ordinance defined a Class D Dance Hall as any place
(A) where dancing is permitted one day a week or more by a person in a state of semi-nudity or simulated nudity; or
(B) that is advertised either on or off the premises:
(i) as topless;
(ii) as a gentleman's club, bar, or saloon;
(iii) as adult entertainment;
(iv) as x-rated; or
(v) by any other term calculated to attract patrons with nudity, semi-nudity, or simulated nudity. 1
The ordinance defined "semi-nudity" as "a state of dress in which clothing covers no more than the genitals, pubic region, buttocks, and areolae of the female breast, as well as parts of the body covered by supporting straps or devices". 2 The ordinance defined "simulated nudity" as "a state of dress in which any device or covering, exposed to view, is worn that simulates any part of the genitals, buttocks, pubic region, or areolae of the female breast". 3
The amended Class D Dance Halls ordinance imposed zoning restrictions on Class D Dance Halls. Specifically, the ordinance provided that no Class D Dance Hall may operate within 1,000 feet of a church, school, residential area, park, or another Class D Dance Hall. 4 After the amendment to the ordinance, every single operating business in the City of Dallas that fitted the definition of a Class D Dance Hall was in violation of the zoning restrictions.
Plaintiff/appellee MD II Entertainment, Inc. ("MD II") owns and operates The Fare West, a club in Dallas that features topless dancing. By having its dancers dance in a state of "simulated nudity", 5 MD II avoided the strictures of the City's Sexually Oriented Business Ordinance. 6 MD II did, however, fall within the purview of the City's Class D Dance Halls ordinance. MD II has a Class D Dance Hall license, but The Fare West in its present location violates the zoning restrictions of Sec. 14-2.2 of the ordinance. Accordingly, the ordinance requires The Fare West, as a "nonconforming use", to cease operation as a Class D Dance Hall.
MD II challenged the ordinance in the district court. On cross-motions for summary judgment, the district court upheld most of the ordinance. 7 It upheld the zoning distance requirements of Sec. 14-2.2 and rejected the plaintiffs' vagueness and overbreadth challenges to the definition of "simulated nudity" in Sec. 14-1(15). The district court struck down two provisions: (1) section 14-1(5)(B), which imposes the zoning requirements of Sec. 14-2.2 on businesses only because of terms used in their advertising, and (2) section 14-3(a), which allows the Chief of Police to deny an application for a Class D Dance Hall license to applicants who are not of "good moral character" without providing any standards to protect against an arbitrary denial. The City has appealed to this court only the striking down of Sec. 14-1(5)(B). 8 The district court also ruled that MD II has no standing to assert a state-law sex discrimination challenge to the ordinance. MD II cross-appeals from this ruling. Finally, the district court also awarded MD II its attorneys' fees as a prevailing party, a ruling the City challenges on this appeal.
We begin by reviewing the district court's summary judgment holding that Sec. 14-1(5)(B) is unconstitutional. Our standard of review is de novo. There are no disputed issues of fact, so we need only decide whether the district court correctly ruled that MD II was entitled to judgment as a matter of law.
The city's first argument is that Sec. 14-1(5)(B) is merely a definition that does not regulate speech at all, and accordingly is beyond First Amendment scrutiny. This argument exalts form over substance. Under the ordinance, businesses which use certain terms in their advertising must close and relocate, while businesses which do not use those terms are unaffected. The connection is one of cause and effect: the City says MD II must close The Fare West because of the advertising it employs. Section 14-1(5)(B) plainly is a regulation of speech.
Section 14-1(5)(B) of the ordinance is a content-based restriction on commercial advertising. 9 The forbidden content is stated expressly in the terms of the ordinance. Accordingly, until very recently it would have been clear that the appropriate test was the four-part intermediate scrutiny analysis laid out by the Supreme Court in Central Hudson Gas & Electric Corp. v. Public Service Commission. 10 More recent cases, however, have questioned the continued vitality of Central Hudson as it applies to content-based restrictions on commercial speech. Our resolution of this case renders it unnecessary to decide which standard applies, but we note the existence of the debate to inform counsel and future panels.
In R.A.V. v. City of St. Paul, Minnesota, 11 the Supreme Court subjected a content-based restriction of "fighting words" to strict scrutiny. The strict scrutiny test requires a regulation of speech to be narrowly tailored to a compelling governmental interest. The Supreme Court in R.A.V. concluded that the municipal ordinance at issue failed the strict scrutiny test, and the Court struck the ordinance down. Because commercial speech traditionally has received greater First Amendment protection than "fighting words", 12 some district courts have concluded that the strict scrutiny standard must apply to content-based restrictions of commercial speech as well. 13 Of course, it is undisputed that Central Hudson continues to govern content-neutral regulations of commercial speech. 14
Because we conclude that, on the record before us, Sec. 14-1(5)(B) does not survive the intermediate scrutiny of Central Hudson, we need not consider whether that test, rather than the strict scrutiny of R.A.V., must guide our inquiry. 15
Central Hudson laid out a four-part test for evaluating a restriction of commercial speech:
At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest. 16
This issue is not contested. MD II's advertising is related to lawful activity and is not misleading.
This part of Central Hudson requires us to "identify with care the interests the [City] itself asserts" for the restriction on speech; we may not "supplant the precise interests put forward by the [City] with other suppositions". 17 7] The chief interest the City asserts to justify its regulation focuses on the deleterious effects topless bars have on the surrounding community. There is a correlation between the presence of topless dancing establishments, depressed property values, and increased crime. The City in formulating its ordinance relied on studies finding these correlations to exist. The district court relied on just these effects in upholding the location restrictions contained in Sec. 14-2.2 of the Class D Dance Halls ordinance. MD II gives us no cause to question the validity and importance of the governmental interest in preserving property values and deterring crime.
This is the most difficult part of the Central Hudson test for the City. The Supreme Court has repeatedly emphasized the substantial burden this requirement places on the proponent of a restriction on commercial speech. 18 The burden is on the City to show that its restrictions on MD II's advertising "will in fact alleviate ... to a material degree" 19 the harms identified above. "[T]he regulation may not be sustained if it provides only ineffective or remote support for the government's purpose". 20
The district court found that "the city has failed to show that its regulation of Plaintiff's use of the term 'gentleman's club' in any way furthers its stated interest" in preserving property values or reducing crime. "[T]he city has made no finding", the district court continued, "that advertising that employs the term 'gentleman's club' produces the deleterious effects which the city seeks to curb". The City has not on this appeal persuaded us that the district court's findings were incorrect. In formulating its ordinance, the city relied on no studies showing a link between advertising and property values or crime. 21 We have no doubt that the interests the city seeks to protect merit protection, but...
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