National Amusements, Inc. v. Town of Dedham

Decision Date10 November 1994
Docket NumberNo. 94-1176,94-1176
Citation43 F.3d 731
PartiesNATIONAL AMUSEMENTS, INC., Plaintiff, Appellant, v. TOWN OF DEDHAM, Defendant, Appellee. . Heard
CourtU.S. Court of Appeals — First Circuit

Theodore E. Dinsmoor, with whom Finnegan and Stanzler, P.C., Philip Y. Brown, Grant Schwartz & Brown, Tad Jankowski, and Lori Wiechelt were on brief, for appellant.

Joyce Frank, with whom Kopelman and Paige, P.C., Boston, MA, was on brief, for appellee.

Before SELYA, Circuit Judge, BOWNES, Senior Circuit Judge, and STAHL, Circuit Judge.

SELYA, Circuit Judge.

This appeal presents a medley of constitutional questions driven by the passage of a municipal bylaw that effectively prohibits the exhibition of motion pictures at the town's only theater between the hours of 1:00 a.m and 6:00 a.m. After careful consideration of appellant's asseverational array, we affirm the district court's entry of summary judgment in the municipality's favor.


Plaintiff-appellant, National Amusements, Inc., owns and operates Showcase Cinemas (Showcase), a complex containing 12 theaters located on Route 1 in Dedham, Massachusetts. In 1978, appellant began exhibiting "midnight movies" on Friday and Saturday nights. These performances started between 11:30 p.m. and 12:30 a.m., and ended between 1:00 a.m. and 2:30 a.m.

On January 12, 1989, at a meeting of the Board of Selectmen (Dedham's governing body), Selectman Kehoe raised the issue of secondary effects, expressing particular concern over purported traffic and security problems associated with Showcase's operation of its business. At a selectmen's meeting the following week, after another selectman reported that he had received complaints about disruptions connected with appellant's exhibition of midnight movies, the Board placed a proposed by-law amendment on the warrant for the forthcoming annual Town Meeting. 1 The text of this proposal, denominated "Article 40," read in pertinent part:

To see if the Town will vote to amend Chapter XIII of the Town By-Laws by adding the following new section:

Section 42B--No holder of an entertainment license for theatrical exhibition, public show, public amusement, concert, dance or exhibition ... shall conduct business between the hours of 12 midnight and 6:00 a.m.

The Board also sent a letter to William Towey, appellant's senior vice-president, memorializing its "concern about the problems generating from the Showcase Cinemas after the weekend late shows," and indicating that the Board "would like to discuss this situation...." On February 2, Towey and approximately 30 interested residents met with the selectmen and discussed matters related to the exhibition of midnight movies.

In response to the residents' articulated concerns, Towey conferred with various townsfolk, including the police chief. Thereafter, appellant agreed to undertake, at its expense, a variety of measures designed to enhance security, reduce noise levels, control traffic, and ameliorate the problem of litter. Despite these concessions, the voters approved Article 40 at a Town Meeting held on April 10, 1989 (first amending it to exempt ballroom dancing and to change the closing time to 12:30 a.m.).

Under the Massachusetts scheme, municipal by-laws cannot take effect without the imprimatur of the Attorney General of the Commonwealth of Massachusetts. See Mass.Gen.L. ch. 40, Sec. 32. The Attorney General refused to sanction Article 40 on the ground that the proposed amendment, by distinguishing ballroom dancing from other forms of dance, was not content-neutral and was, therefore, unconstitutional.

Undaunted, the Board of Selectmen proposed a neoteric amendment, Article 4, for inclusion on the next Town Meeting warrant. Article 4 provided in pertinent part:

To see if the Town will vote to amend Chapter XIII of the Revised By-Laws of the Town of Dedham, entitled "Police Regulations" by adding a new section at the end thereof, as follows: Section 57.

Unless otherwise restricted, no holder of a license issued by the Town of Dedham, pursuant to Massachusetts General Laws, Chapter 140, Sections 177A, 181 and 183A, shall permit any activity licensed thereunder to be conducted between the hours of 1:00 a.m. and 6:00 a.m. 2

The voters adopted Article 4 at a special Town Meeting held on November 6, 1989. The Attorney General approved it on February 8, 1990. On the day that Article 4 took effect, appellant sued, charging that the by-law violated its rights under both the federal and state constitutions. 3 Following pretrial discovery, Dedham successfully moved for summary judgment. See National Amusements, Inc. v. Town of Dedham, 846 F.Supp. 1023 (D.Mass.1994). This appeal ensued.


A federal court may grant summary judgment in a civil action "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Supreme Court fleshed out this rule in a trilogy of cases decided in the 1985-86 term. See Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). In general, these cases require that a party seeking summary judgment make a preliminary showing that no genuine issue of material fact exists. Once the movant has made this showing, the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue. See Celotex, 477 U.S. at 324, 106 S.Ct. at 2553.

To satisfy the criterion of trialworthiness, and thereby forestall summary judgment, an issue must be "genuine," that is, the evidence relevant to the issue, viewed in the light most flattering to the party opposing the motion, see Mack v. Great Atl. & Pac. Tea Co., 871 F.2d 179, 181 (1st Cir.1989), must be sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side. See Liberty Lobby, 477 U.S. at 250, 106 S.Ct. at 2511; Hahn v. Sargent, 523 F.2d 461, 464 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976). Trialworthiness necessitates "more than simply show[ing] that there is some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586, 106 S.Ct. at 1356. As we have stated, "[t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve...." Mack, 871 F.2d at 181.

Trialworthiness requires not only a "genuine" issue but also an issue that involves a "material" fact. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. In this context, the term "material" means that a fact has the capacity to sway the outcome of the litigation under the applicable law. See id.; see also United States v. One Parcel of Real Property, Etc. (Great Harbor Neck, New Shoreham, R.I.), 960 F.2d 200, 204 (1st Cir.1992). If the facts on which the nonmovant relies are not material, or if its evidence "is not significantly probative," Liberty Lobby, 477 U.S. at 249-50, 106 S.Ct. at 2511 (citations omitted), brevis disposition becomes appropriate.

An order granting summary judgment engenders plenary review. See Pagano v. Frank, 983 F.2d 343, 347 (1st Cir.1993). In conducting such review, we examine the summary judgment record in the light most friendly to the summary judgment loser, and we indulge all reasonable inferences in that party's favor. See id. Withal, we need not credit purely conclusory allegations, indulge in rank speculation, or draw improbable inferences. See Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990).


The heart of appellant's case is its multifaceted claim that the municipal by-law violates the First Amendment. We turn directly to that claim (relegating appellant's related overbreadth challenge to Part IV(C), infra ).

A. Putting First Things First.

In the context of First Amendment challenges to government regulations that burden speech, the Supreme Court has identified two differing modes of analysis, or levels of scrutiny, that may come into play. Since entertainment constitutes a form of speech, fully protected by the First Amendment, see Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65, 101 S.Ct. 2176, 2180, 68 L.Ed.2d 671 (1981), our initial task is to determine the appropriate level of judicial scrutiny that attaches to an analysis of Article 4. We begin this endeavor by mapping the choices and putting them into workable perspective.

Freedom of speech is among the most precious of our constitutional rights. Thus, courts have long recognized that, when governmental action places speech in special jeopardy, special protections must apply. For this reason, a court embarking on an inquiry into the constitutionality of governmental action will devote "the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens on speech because of its content." Turner Broadcasting Sys., Inc. v. FCC, --- U.S. ----, ----, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994); accord Simon & Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 502 U.S. 105, ----, 112 S.Ct. 501, 508, 116 L.Ed.2d 476 (1991); Widmar v. Vincent, 454 U.S. 263, 276, 102 S.Ct. 269, 277, 70 L.Ed.2d 440 (1981). Strict scrutiny is desirable in these circumstances because such laws "pose the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion." Turner Broadcasting, --- U.S....

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