Wil-Kar, Inc. v. Village of Germantown
| Decision Date | 13 August 2001 |
| Docket Number | No. 01-C-0266.,01-C-0266. |
| Citation | 153 F.Supp.2d 982 |
| Parties | WIL-KAR, INC., d/b/a Video Update, Inc., Plaintiff, v. VILLAGE OF GERMANTOWN, Defendant. |
| Court | U.S. District Court — Eastern District of Wisconsin |
John L DeStefanis, Fuchs Snow DeStefanis, Milwaukee, WI, for Village of Germantown, defendants.
DECISION AND ORDER
Plaintiff Video Update, a business that rents and sells videotapes, brings this action under 42 U.S.C. § 1983 challenging the constitutionality of a Village of Germantown ordinance requiring "adult-oriented establishments" to obtain a license in order to operate. Germantown, Wis., Ord. § 12:24 (1992) [hereinafter "Ord."]. Plaintiff rents and sells videos of general distribution to all audiences and devotes about five percent of its square footage to adult material. About two percent of plaintiff's 30,000 videos are in the adult category, and it derives about seven percent of its average weekly revenue of about $8,000 from renting and selling such videos. Plaintiff has always displayed its adult videos in a separate section from which minors are excluded. Plaintiff has been in business since 1991, and the ordinance was enacted in 1992.
In January 2001 a Germantown police officer inspected the store and ordered the adult section closed because plaintiff did not have an adult-oriented establishment license as required under the ordinance. Immediately thereafter plaintiff applied for a license, submitting an application, a $250 fee, and other required material including its owners' fingerprints and employment histories. In February 2001, over objections from the village attorney and police chief, the village board granted plaintiff a license subject to the conditions that its adult videos remain segregated and that no advertising of such videos be visible from the building's exterior.
Plaintiff argues that the licensing ordinance violates the First Amendment both on its face and as applied. Plaintiff contends that the ordinance is overbroad, a prior restraint, and unconstitutional in other respects. Plaintiff now moves for a preliminary injunction.1
To obtain a preliminary injunction, plaintiff must show (1) a reasonable likelihood of success on the merits; (2) that it has no adequate remedy at law; (3) that it will suffer irreparable harm if an injunction does not issue; (4) that the threatened injury it faces outweighs the injury defendant will suffer if the injunction is granted; and (5) that an injunction is in the public interest. JAK Prods., Inc. v. Wiza, 986 F.2d 1080, 1084 (7th Cir.1993). Although in theory these elements are distinct, in the First Amendment context they essentially reduce to the question of whether plaintiff is likely to succeed on the merits. Tanford v. Brand, 883 F.Supp. 1231, 1237 (S.D.Ind.1995). This is because the loss of First Amendment freedoms is presumed to constitute irreparable harm, and irreparable injury establishes that there is no adequate remedy at law. Further, because governmental compliance with the First Amendment always serves the common good, the public interest also turns on the merits. Id.
The First Amendment, as made applicable to the states through the Fourteenth Amendment, provides that, "Congress shall make no law ... abridging the freedom of speech." U.S. Const. amend I. The Germantown ordinance is a licensing regulation that requires adult-oriented establishments to obtain "adult-oriented establishment licenses" from the village board. Ord. § 12.24(3). The First Amendment standard that applies to a licensing ordinance depends on whether the ordinance targets the content of the licensed speech. Blue Canary Corp. v. City of Milwaukee, 251 F.3d 1121, 1123 (7th Cir.2001). Content-based regulations are defined as those that distinguish favored from disfavored speech based on the ideas expressed. Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 643, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). By contrast, content-neutral regulations treat all speech similarly in an effort to advance significant government interests unrelated to content. Schultz v. City of Cumberland, 228 F.3d 831, 840 (7th Cir.2000). For example, a general ban on speech in the vicinity of a school is content-neutral, Grayned v. City of Rockford, 408 U.S. 104, 119-20, 92 S.Ct. 2294, 33 L.Ed.2d 222 (1972), whereas an analogous ban on speech with an exemption for speech related to labor disputes is content-based, Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972).
Subject to an exception discussed below, content-based regulations are presumptively invalid under the First Amendment and are subject to strict scrutiny. R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992). Strict scrutiny applies to regulations of this type because their purpose is typically to suppress free expression, contrary to the First Amendment imperative that the government is not to discriminate against speech based upon its viewpoint or subject matter. Schultz v. City of Cumberland, 228 F.3d 831, 840 (7th Cir.2000).
Content-neutral regulations, on the other hand, are not subject to strict scrutiny but to a more forgiving, intermediate scrutiny. Schultz, 228 F.3d at 845. Under intermediate scrutiny, regulations on speech are constitutional if (1) they further an important or substantial governmental interest; (2) the governmental interest is unrelated to the suppression of free expression; and (3) the incidental restriction on expression is no greater than essential to the governmental interest. United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968).
I thus assess whether the Germantown ordinance is content-based or content-neutral. The ordinance imposes licensing requirements upon "adult entertainment stores," which it defines as establishments whose stock in trade includes materials "which have as their dominant theme or are distinguished or characterized by their emphasis on matters depicting, describing or relating to `specific sexual activities' or `specified anatomical areas.'" Ord. § 12:24(2)(b).2 The ordinance thus on its face targets expression based upon its content. Because it treats erotic expression differently than other expression, it is content-based. Schultz, 228 F.3d at 843.
Nevertheless, as earlier mentioned, there is an exception to the general rule that strict scrutiny applies to content-based regulations. Id.; DiMa Corp. v. Town of Hallie, 185 F.3d 823, 828 (7th Cir.1999). Specifically, content-based regulations are subject only to intermediate scrutiny if they "are justified without reference to the content of the regulated speech." City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). Such a justification is present if the regulation's predominate concern is with the "secondary effects" of the regulated speech, rather than with the content of that speech. Id. at 47, 106 S.Ct. 925. Adverse secondary effects sometimes alleged to stem from adult entertainment include increased crime, decreased property values, urban blight, and the spread of sexually transmitted diseases. Id. at 48, 106 S.Ct. 925; Schultz, 228 F.3d at 847.
Content-based regulations can be upheld as if they were content-neutral so long as they (1) are justified without reference to the content of the regulated speech; (2) are narrowly tailored to serve a significant government interest in curbing adverse secondary effects; and (3) still leave open ample alternative channels for communication. Schultz, 228 F.3d at 845; City of Renton, 475 U.S. at 47, 106 S.Ct. 925. The Supreme Court upheld content-based zoning regulations in City of Renton and in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), based upon this test, and in Schultz and DiMa, the Seventh Circuit upheld limits on the hours of sexually-oriented businesses based on secondary effects justifications.
There is no information in the record before me to suggest that the Germantown ordinance's predominant concern is with the secondary effects of the speech that it licenses. To the contrary, the ordinance states that its intent is "primarily to combat the obscenity industry." Ord § 12.24(1). Moreover, Germantown did not respond to plaintiff's requests for admissions, and thereby conceded that the ordinance "is designed to deter and discourage the dissemination of obscenity in Germantown." (R. 17 Ex. A at 3; Fed. R.Civ.P. 36(a).) Further, Germantown has presented no evidence either that its village board enacted the ordinance because of its concern about secondary effects, or that the ordinance actually combats secondary effects.
In response to a First Amendment challenge, a municipality bears the burden of justifying a regulation based on a secondary effects rationale and of presenting evidence supporting the proffered justification. DiMa Corp., 185 F.3d at 829. Germantown asserts that the ordinance's statement of intent should be disregarded because "when read as a whole, the ordinance is cast in terms similar to many others which are intended to regulate adult oriented business in order to combat the secondary effects associated with such businesses." (Def.'s Br. at 6.) Germantown does not explain the similarities that it sees between its ordinance and ordinances that other municipalities enacted to target secondary effects. But even assuming that there are such similarities, it would remain defendant's burden to show that it enacted the ordinance in order to combat the unwanted secondary effects of adult businesses, rather than because it disapproved of such businesses. In the absence of any evidence in the record about what led the Germantown village board to enact...
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