Entertainment Productions, Inc v. Shelby County, Tennessee

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 09a0406p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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Plaintiffs-Appellants, -

ENTERTAINMENT PRODUCTIONS, INC., et al.,

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No. 08-5494

v.

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Defendants-Appellees, -

SHELBY COUNTY, TENN., et al.,

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ROBERT E. COOPER, JR., Attorney General, -

Intervenor Defendant-Appellee. -

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Appeal from the United States District Court

for the Western District of Tennessee at Memphis.

No. 08-02047—Bernice B. Donald, District Judge.

Argued: April 20, 2009

Decided and Filed: November 25, 2009

Before: BOGGS, MOORE, and SUTTON, Circuit Judges.

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COUNSEL

ARGUED: J. Michael Murray, BERKMAN, GORDON, MURRAY & DeVAN, Cleveland,

Ohio, for Appellants. Robert B. Rolwing, ASSISTANT COUNTY ATTORNEY, SHELBY

COUNTY GOVERNMENT, Memphis, Tennessee, Steven A. Hart, OFFICE OF THE

TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, for Appellees. ON BRIEF:

J. Michael Murray, Raymond V. Vasvari, Jr., BERKMAN, GORDON, MURRAY &

DeVAN, Cleveland, Ohio, for Appellants. Robert B. Rolwing, ASSISTANT COUNTY

ATTORNEY, SHELBY COUNTY GOVERNMENT, Memphis, Tennessee, Steven A. Hart,

OFFICE OF THE TENNESSEE ATTORNEY GENERAL, Nashville, Tennessee, Thomas

Roane Waring III, CITY ATTORNEY’S OFFICE, Memphis, Tennessee, for Appellees.

BOGGS, J., delivered the opinion of the court, in which SUTTON, J., joined.

MOORE, J. (p. 32), delivered a separate opinion concurring only in the judgment.

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OPINION

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BOGGS, Circuit Judge. Plaintiffs-Appellants Entertainment Productions, Inc., et al.

filed suit to challenge the constitutionality of the Tennessee Adult-Oriented Establishment

Registration Act (“Act” or “Tennessee Act”) on First Amendment grounds. Plaintiffs appeal

from a district court’s denial of a preliminary injunction against the enforcement of the

Tennessee Act in Shelby County. Plaintiffs claim that the Tennessee Act is unconstitutional

on four grounds. First, Plaintiffs contend that the definitions of “adult cabaret,”

“adult-oriented establishment,” and “adult entertainment” render the Act unconstitutionally

overbroad, and second, that these definitions are vague. Third, Plaintiffs argue that

prohibitions on certain kind of physical contact on the premises of an adult-oriented

establishment are overbroad. Fourth, Plaintiffs claim that the Tennessee Act will

substantially diminish the availability of adult speech in Memphis, Shelby County. Plaintiffs

conclude that the district court erred in determining both that Plaintiffs did not demonstrate

a substantial likelihood of success on the merits of their claims and that the balancing of

equities disfavored a preliminary injunction. We affirm the district court’s denial of the

preliminary injunction.

I

This case presents a constitutional challenge to the Tennessee Adult-Oriented

Establishment Registration Act of 1998, Tenn. Code Ann. § 7-51-1101 et seq. The

Tennessee Act is a county-option state law, enacted to address the recognized negative

secondary effects associated with “adult” or sexually oriented businesses, including crime,

spread of sexually transmitted diseases, lowering of property values, and other related public

welfare and safety issues. The Act sets up a licensing scheme for sexually oriented

businesses, prohibits certain activities on the premises of such businesses, and regulates the

manner in which entertainment may be presented therein. The Act enters into effect in a

particular county after “a two-thirds (2/3) vote of the county legislative body adopting this

part.” Tenn. Code Ann. § 7-51-1120. On September 13, 2007, Shelby County’s Ordinance

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344 (“Ordinance”) adopted the Tennessee Act in Shelby County. The Ordinance relied on

Tennessee’s legislative findings of “deleterious secondary effects commonly associated with

adult-oriented establishments, including but not limited to an increase in crime, the spread

of sexually-transmitted diseases, the downgrading of property values, and other public

health, safety, and welfare issues.” Pursuant to the Ordinance, the Act entered into effect in

Shelby County on January 1, 2008, but provided a 120-day “grace period” to allow

businesses and employees to obtain licenses required by the Act.

The Act regulates all establishments that conform to a statutory definition of

“adult-oriented establishment” in two general ways. First, all businesses subject to the Act,

as well as their employees and entertainers, must obtain a license or a permit. Second, the

Act regulates the manner in which entertainment may be provided by adult-oriented

establishments: it prohibits nudity, certain sexual activities, certain kinds of physical contact,

and requires that all performances take place on a stage at least 18 inches above floor level

and that all performers stay at least six feet away from customers, employees and other

performers.

Plaintiffs operate a “substantial fraction” of the nightclubs in Memphis, Shelby

County. On January 25, 2008 – prior to the expiration of the 120-day grace period for

obtaining licenses – Plaintiffs filed suit in the United States District Court for the Western

District of Tennessee against Shelby County and the City of Memphis, seeking injunctive

relief and a declaratory judgment. Tennessee’s Attorney General, Robert E. Cooper, Jr., was

granted leave to intervene to defend the constitutionality of the Act (Shelby County, the City

of Memphis, and the Attorney General are collectively referred to as “Defendants”). After

a preliminary injunction hearing, the district court denied the requested injunction on the

basis that Plaintiffs did not demonstrate a substantial likelihood of success on the merits of

1

their claims. Plaintiffs now appeal from that decision.

1

However, the district court granted Plaintiffs’ subsequent motion for an injunction pending this

appeal.

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II

A

A district court’s denial of injunctive relief is normally reviewed for an abuse of

discretion. Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007).

The district court considers and balances four factors in making its decision:

“(1) whether the plaintiff has established a substantial likelihood or probability of

success on the merits; (2) whether there is a threat of irreparable harm to the plaintiff;

(3) whether issuance of the injunction would cause substantial harm to others; and

(4) whether the public interest would be served by granting injunctive relief.” Ibid.

(quoting City of Littleton v. Z. J. Gifts D-4, L.L.C., 541 U.S. 774, 784 (2004)). The first

factor is crucial in First Amendment cases because public interest and harm to the parties

largely depend on the constitutionality of the challenged law. The first factor presents

a “purely legal question of whether the district court improperly applied governing law

or used an erroneous legal standard,” which we review de novo. Ibid. (internal quotation

marks and citations omitted).

B

This court has repeatedly faced challenges to the constitutionality of state and

local regulations of sexually or adult-oriented establishments. We recognize that such

regulations tend to abridge the opportunities for the communication and reception of “at

least two protected categories of speech: first, sexually explicit but non-obscene speech,

such as adult publications and adult videos, and second, ‘symbolic speech’ or

‘expressive conduct,’ such as nude [or nearly nude] dancing.” Richland Bookmart, Inc.

v. Knox County, Tenn., 555 F.3d 512, 520 (6th Cir. 2009); see also Deja Vu of Nashville,

Inc. v. Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 396 (6th Cir. 2001).

Notwithstanding the protection accorded to erotic expression by the First Amendment,

the Supreme Court has held that governments may adopt measures intended to

ameliorate the adverse secondary effects of such expression, so long as the restrictions

placed on expression survive intermediate scrutiny as set forth in United States v.

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O’Brien, 391 U.S. 367, 377 (1968), and City of Renton v. Playtime Theatres, 475 U.S.

41, 47 (1986). Restrictions on sexually explicit expression are constitutionally

permissible if: they further a substantial governmental interest “unrelated to the

suppression of free expression,” O’Brien, 391 U.S. at 377 – specifically, the amelioration

of adverse secondary effects associated with adult establishments; they are narrowly

tailored; and they “do not unreasonably limit alternative avenues of communication,”

Renton, 475 U.S. at 47. See Richland Bookmart, 555 F.3d at 520-22.

In accordance with O’Brien, Renton, and their progeny, we have declined to

uphold particular regulatory measures, for which no substantial governmental interest

unrelated to the suppression of speech was proffered, that burdened more speech than

necessary in a manner unconnected to the interest in controlling secondary effects,

and/or which unreasonably limited the avenues of communication for adult-oriented

speech. See, e.g., Hamilton’s Bogarts, Inc., 501 F.3d at 654; Exec. Arts Studio, Inc. v.

City of Grand Rapids, 391 F.3d 783, 798-99 (6th Cir. 2004); see also 729, Inc. v. Kenton

County Fiscal Court, 515 F.3d 485, 504 (6th Cir. 2008).

In the present case, Plaintiffs do not argue that the application of the Tennessee

Act to their establishments does not satisfy intermediate scrutiny under O’Brien and

Renton.2 Indeed, because the Act has not yet been enforced against Plaintiffs, they

challenge key provisions of the Act as overly broad and/or vague, and maintain that

nothing short of facial invalidation will remedy the chilling effect created by the threat

of its unconstitutional applications.

In the context of the First Amendment, the chief evil of overly broad laws

consists in the chilling effect they produce on protected expression. For this reason, the

2

Nor would such a claim be likely to meet with success, in light of the decision of the Tennessee

Court of Appeals in American Show Bar Series, Inc. v. Sullivan County, 30 S.W.3d 324 (Tenn. Ct. App.

2000), perm. app. denied, 2000 Tenn. LEXIS 543 (Tenn. Mar. 15, 2000), which held that the Act was

constitutional as applied to similarly situated plaintiffs. That court determined that the Act is a content-

neutral time, place, and manner regulation of adult-oriented establishments, id. at 334, and that a number

of challenged provisions survived intermediate scrutiny under O’Brien, including the provisions regarding

prohibited activities, to which present Plaintiffs now bring a facial challenge on overbreadth grounds. Id.

at 338-39.

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Supreme Court has relaxed the traditional rules of standing: plaintiffs are permitted “to

challenge a statute not because their own rights of free expression are violated, but

because of a judicial prediction or assumption that the statute’s very existence may cause

others not before the court to refrain from constitutionally protected speech or

expression.” Prime Media, Inc. v. City of Brentwood, 485 F.3d 343, 348 (6th Cir. 2007)

(internal quotation marks omitted) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612

(1973)). Thus, when a law “‘prohibits a substantial amount of protected speech’ both

‘in an absolute sense’ and ‘relative to the statute’s plainly legitimate sweep,’” the

overbreadth doctrine dictates wholesale invalidation. Connection Distrib. Co. v. Holder,

557 F.3d 321, 336 (6th Cir. 2009) (quoting United States v. Williams, 128 S. Ct. 1830,

1838 (2008)). In the context of adult-oriented business regulations, “the overbreadth

doctrine guards against the suppression of protected speech unconnected to the negative

secondary effects cited as legislative justification.” Schultz v. City of Cumberland, 228

F.3d 831, 849 (7th Cir. 2000) (citing Tunick v. Safir, 209 F.3d 67, 83 (2d Cir. 2000); see

also Triplett Grille, Inc. v. City of Akron, 40 F.3d 129, 135 (6th Cir. 1994)).

Facial invalidation of a law is, as the Supreme Court and this court repeatedly

noted, “strong medicine,” as “‘[s]ubstantial social costs’ are incurred by preventing the

‘application of a law to constitutionally unprotected speech, or especially to

constitutionally unprotected conduct.’” Richland Bookmart, Inc., 555 F.3d at 532

(quoting Virginia v. Hicks, 539 U.S. 113, 119 (2003)). Therefore, the Supreme Court

has “vigorously enforced the requirement that a statute’s overbreadth be substantial,”

Williams, 128 S. Ct. at 1838, and cautioned that invalidation for overbreadth be deployed

sparingly and “only as a last resort,” Broadrick, 413 U.S. at 613. Only if a plaintiff

demonstrates “from the text of [the statute] and from actual fact that a substantial

number of instances exist in which the law cannot be applied constitutionally,” is facial

invalidation on overbreadth grounds appropriate. Richland Bookmart, Inc., 555 F.3d at

532 (alteration in original) (quoting N.Y. State Club Ass’n v. City of New York, 487

U.S. 1, 14 (1988)).

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The void-for-vagueness doctrine and the overbreadth doctrine vindicate

overlapping values in First Amendment jurisprudence. In general, vague laws fail to

“give the person of ordinary intelligence a reasonable opportunity to know what is

prohibited,” risk “trapping the innocent,” and create a danger of “arbitrary and

discriminatory enforcement.” Grayned v. City of Rockford, 408 U.S. 104, 108 (1972).

When a law implicates First Amendment freedoms, vagueness poses the same risk as

overbreadth, as vague laws may chill citizens from exercising their protected rights.

Accordingly, the Supreme Court has indicated that “stricter standards of permissible

statutory vagueness may be applied to a statute having a potentially inhibiting effect on

speech.” Smith v. California, 361 U.S. 147, 151 (1959). “Although ordinarily ‘[a]

plaintiff who engages in some conduct that is clearly proscribed cannot complain of the

vagueness of the law as applied to the conduct of others,’ we have relaxed that

requirement in the First Amendment context, permitting plaintiffs to argue that a statute

is overbroad because it is unclear whether it regulates a substantial amount of protected

speech.” Williams, 128 S. Ct. at 1845 (quoting Hoffman Estates v. Flipside, Hoffman

Estates, Inc., 455 U.S. 489, 494–95 & nn.6 &7 (1982)).

This court has not shied away from invalidating a regulatory scheme in its

entirety when the threat of impermissible applications and the consequent chilling effect

unambiguously warranted this remedy. See Odle v. Decatur County, 371 F.3d 386, 395,

399 (6th Cir. 2005) (holding that a Decatur County ordinance, which prohibited, inter

alia, nudity and the performance of arguably sexually suggestive acts in any place where

liquor was sold, served or consumed, was overbroad because “it reache[d] a wide swath

of public places likely to present performances not usually attended by harmful

secondary effects”); Triplett Grille, 40 F.3d at 136 (holding that the Akron public

indecency ordinance was unconstitutionally overbroad because it prohibited nudity in

all public places, without excepting “live performances with serious literary, artistic, or

political value”). Our decisions are also in harmony with other circuits’ disposition of

similar challenges. See, e.g., Conchatta Inc. v. Miller, 458 F.3d 258, 266 (3d Cir. 2006)

(holding that a Pennsylvania regulation prohibiting “lewd” entertainment is

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unconstitutionally overbroad because it applied to all venues holding liquor licenses as

well as those “operat[ing] in connection” with the licensed premises, sweeping in “a

variety of performances that are entitled to the full protection of the First Amendment”);

Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 510, 516 (4th Cir. 2002) (holding that

plaintiffs are likely to succeed in their overbreadth challenge to a North Carolina

secondary-effects regulation because it applied to all establishments licensed to sell

alcohol, “sweep[ing] far beyond bars and nude dancing establishments” and reaching

“much other mainstream entertainment,” with no evidence offered to connect the

proscribed activities in mainstream venues to adverse secondary effects); Ways v. City

of Lincoln, 274 F.3d 514, 519 (8th Cir. 2001) (holding that an ordinance is

unconstitutionally overbroad because it reached beyond adult entertainment

establishments to regulate conduct in “any business or commercial establishment,”

including “theater performances, ballet performances, and many other forms of live

entertainment” not recognized to cause harmful secondary effects).

The facial attacks in Odle, Triplett Grille, Conchatta, Carandola, and Ways

succeeded because the challenged statutes purported to regulate public venues that stage

mainstream performances of artistic value, as well as venues that stage adult-oriented

performances. In these cases, the “strong medicine” of facial invalidation was warranted

because casting so wide a regulatory net would certainly chill protected artistic

expression that was not shown to produce the same adverse secondary effects associated

with adult entertainment. Moreover, the challenged statutes were not “readily

susceptible” either to a narrowing construction that would limit the regulatory scope to

adult-oriented establishments or to a limitation by severance of problematic provisions.

See Virginia v. American Booksellers Ass’n, 484 U.S. 383, 397 (1988). To demonstrate

a substantial likelihood of success on the merits of the present claims, therefore, the

Plaintiffs must establish that the allegedly unconstitutional provisions of the Tennessee

Act result in a real and substantial number of impermissible applications that chill

protected expression, that the statutory language is not readily susceptible to a limiting

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construction, and that any problematic provisions may not be severed because they are

“an integral part of the [Act] viewed in its entirety,” Schultz, 228 F.3d at 853.

C

In their first argument, Plaintiffs assert unconstitutional overbreadth on the basis

of the three definitions that identify the set of establishments to which the Act applies.

The licensing and other regulations contained in the Act apply to “adult-oriented

establishments,” which include “adult cabarets.” Moreover, Plaintiffs claim that the

category of “adult-oriented establishments” also includes any establishment that is open

to the public and presents “adult entertainment” for profit. The three definitions –

“adult-oriented establishment,” “adult cabaret,” and “adult entertainment” – render the

Act overbroad, according to Plaintiffs, because they serve to prohibit and regulate

expression “not only within adult establishments, but also in a wide variety of venues

with neither an actual nor an alleged link to the adverse secondary effects attributed to

adult expression.” Appellants’ Br. at 13.

Our “first step in overbreadth analysis is to construe the challenged statute; it is

impossible to determine whether a statute reaches too far without first knowing what the

statute covers.” Williams, 128 S. Ct. at 1838. We proceed, therefore, to construe each

term challenged by Plaintiffs.

“Adult Cabaret”

An “adult cabaret” is an “adult-oriented establishment” subject to licensing and

regulation under the Act, and is separately defined as follows:

“Adult cabaret” means an establishment that features as a principal use

of its business, entertainers, waiters, or bartenders who expose to public

view of the patrons within such establishment, at any time, the bare

female breast below a point immediately above the top of the areola,

human genitals, pubic region, or buttocks, even if partially covered by

opaque material or completely covered by translucent material, including

swim suits, lingerie, or latex covering. “Adult cabaret” includes a

commercial establishment that features entertainment of an erotic nature,

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including exotic dancers, strippers, male or female impersonators, or

similar entertainers;

Tenn. Code Ann. § 7-51-1102(2). Plaintiffs identify three reasons why the set of

establishments swept into the Act’s regulatory scheme by this definition results in

overbreadth.

First, Plaintiffs argue that the statutory reference to “a principal use,” rather than

“the principal use,” expands the Act’s regulatory reach to multi-use and mainstream

establishments. Appellants’ Br. at 34. “Adult cabarets,” on Plaintiffs’ reading, include

cabarets that have several uses, of which presentation of semi-nude entertainment is just

one, as well as mainstream dramatic or artistic venues. The latter venues will fall within

the definition of “adult cabaret,” Plaintiffs insist, because “substantial runs of a drama,

music or dance program . . . – which contain nudity and thus can make the venue in

which they are performed into an adult cabaret – go on for long periods, turning that

performance into a substantial, and thus a principal use of the venue.” Appellants’ Br.

at 35.

While article choice ought not be ignored in statutory interpretation, the chosen

article is not the only or overriding signal of a statute’s meaning. In this case, the

common definition of the succeeding term (“principal”) diminishes the significance of

the indeterminate article. As the district court noted, “principal” means “most important,

consequential, or influential.” (quoting Webster’s Third New International Dictionary

1802 (3d ed. 1993) (emphasis added)).3 In light of this definition, the substantive import

of the alleged distinction between “the most important” and “a most important” use of

a business is negligible.

Even if this provision is read to include establishments with several “principal

uses” of equal importance, we are not persuaded that entertainers’ exposure of specified

3

Unlike a number of other statutes we have encountered, the Tennessee Act does not define

“principal use,” which leaves its interpretation to the common definition of the term. Cf. Richland

Bookmart, Inc. v. Knox County, Tenn., 555 F.3d 512, 519 (6th Cir. 2009) (scrutinizing an ordinance that

defined “principal business purpose” to mean, inter alia, 35% or more of displayed merchandise or its

value, revenues, or interior business space).

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anatomical areas in the course of a performance would ever plausibly describe “a

principal use” of theatrical, musical or similar mainstream artistic venues. A “run” of

a performance, however long, that contains nudity, does not transform such a venue into

an adult cabaret because no specific play, opera or ballet is commonly deemed to be “a

principal use” of a venue.4 With regard to establishments that are devoted to multiple

uses of equal importance, one of which is admittedly adult entertainment, their inclusion

under the Act’s regulatory scheme would not violate the First Amendment. Neither this

court nor the Supreme Court has required that regulatory efforts to address secondary

effects of sexually oriented businesses must be confined to establishments that accord

unequivocal priority to adult entertainment over all other business uses. The crucial

inquiry in determining the permissible reach of such regulations is whether the

government relied on evidence reasonably believed to be relevant in identifying the set

of businesses that generate adverse secondary effects. Given the documented evidence

of such effects examined by Tennessee, Shelby County, as well as other jurisdictions,

it is not unreasonable to conclude that an establishment with more than one principal use

– for instance, semi-nude dancing and food service – is as liable to produce negative

externalities as an establishment wholly devoted to presenting semi-nude dancing.5

Second, Plaintiffs argue that “the sorts of entertainment listed in the second

sentence of § 7-51-1102(2) are intended to augment, and not exemplify, the first,” which

sweeps in mainstream establishments without requiring that “entertainment of an erotic

nature” be their principal use. Appellants’ Rep. Br. at 6-7, 35. We disagree. The

second sentence merely lists examples of the kind of entertainment that may fit the

definition set forth in the first sentence. Plaintiffs object that the list of entertainers in

the second sentence “may or may not exemplify the first”: “There is no requirement,

4

It would be odd to say that a presentation of Salomé, rather than operatic performances generally,

is a principal use of an opera house.

5

We have previously upheld various regulations applicable to similarly defined establishments,

even if we did not confront an identical challenge to the definition. In DLS, Inc. v. City of Chattanooga,

for instance, this court upheld a similar licensing and regulation scheme that applied to “establishment[s]

which feature[] as a principle [sic] use of its business” entertainers or employees who expose the same

anatomical areas specified in the provision at bar. 107 F.3d 403, 406 (6th Cir. 1997).

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rule or practice which says that a female impersonator will appear, for example, in

lingerie or with bare breasts, or that a bared buttock[] is a necessary element of

entertainment ‘of an erotic nature’.” Appellants’ Rep. Br. at 7.

It is probably true that some performances by the entertainers listed in the second

sentence bear no relation to the secondary effects the Act seeks to control. This,

however, presents no difficulties of interpretation of the kind Plaintiffs evoke. Read

naturally, a “commercial establishment that features entertainment of an erotic nature”

by any of the listed performers is an “adult cabaret” under the Act only if entertainment

by these performers is a principal use of the business and if their attire exposes the

anatomical areas specified in the first sentence. Read in this manner, the Act does not

burden a substantial amount of protected expression unrelated to secondary effects.6

Third, Plaintiffs claim that the Act impermissibly regulates erotic dance

performances by “clothed” dancers, which are unconnected to the adverse secondary

effects the Act purports to address. Id. at 39. By “clothed,” Plaintiffs mean entertainers

who are distinctly not nude, but are clad in “bikinis, swimsuits, and other materials

which, while opaque, do not completely cover the entire buttocks, or all portions of the

breast below the topmost portion of the areola.” Id. at 40. The theory that underlies this

claim – that burdening performances put on by entertainers so attired constitutes an

unconstitutional application of a secondary-effects regulation – was addressed and

rejected by this court in Richland Bookmart. 555 F.3d at 529-30.

In that case, we explained that in view of the evidence of secondary effects relied

on by Knox County, as well as numerous other local and state governments

promulgating similar regulations, “‘it was reasonable for the City to conclude that

establishments featuring performers in attire more revealing than bikini tops pose the

same types of problems associated with other [sexually oriented businesses]’.” 555 F.3d

6

Because we find that the second sentence does not augment the complete definition of “adult

cabaret” contained in the first sentence, we find it unnecessary to address Plaintiffs’ further arguments

about the inadequacy of the word “feature” as an alternative source of a limiting construction. See

Appellants’ Rep. Br. at 8.

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at 529 (quoting Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 482

(5th Cir. 2002)) (alteration in original). We held that the regulation of adult cabarets

featuring “semi-nude” performers7 survived intermediate scrutiny because it did not

impose a “substantial portion of the regulatory burden on protected speech without

advancing the goals of the Ordinance.” Id. at 530. Thus, imposing comparable burdens

on a substantially overlapping set of cabarets cannot form a basis for a successful facial

challenge. We are persuaded that the term “adult cabaret” does not render the Act overly

broad.

“Adult-oriented establishment” and “Adult entertainment”

Next, Plaintiffs argue that the definitions of “adult entertainment” and

“adult-oriented establishment” jointly render the Act unconstitutionally overbroad in its

scope. “Adult-oriented establishment” is given a long, tri-partite definition:

“Adult-oriented establishment” includes, but is not limited to, an adult

bookstore, adult motion picture theater, adult mini-motion picture

establishment, adult cabaret, escort agency, sexual encounter center,

massage parlor, rap parlor, sauna;

further, “adult-oriented establishment” means any premises to which the

public patrons or members are invited or admitted and that are so

physically arranged as to provide booths, cubicles, rooms, compartments

or stalls separate from the common areas of the premises for the purpose

of viewing adult-oriented motion pictures, or wherein an entertainer

provides adult entertainment to a member of the public, a patron or a

member, when such adult entertainment is held, conducted, operated or

maintained for a profit, direct or indirect.

“Adult-oriented establishment” further includes, without being limited

to, any adult entertainment studio or any premises that is physically

arranged and used as such, whether advertised or represented as an adult

entertainment studio, rap studio, exotic dance studio, encounter studio,

7

The Knox County Ordinance applied to establishments that “regularly feature[] persons who

appear semi-nude,” where “semi-nudity” meant “the showing of the female breast below a horizontal line

across the top of the areola and extending across the width of the breast at that point, or the showing of the

male or female buttocks. This definition shall include the lower portion of the human female breast, but

shall not include any portion of the cleavage of the human female breasts exhibited by a bikini, dress,

blouse, shirt, leotard, or similar wearing apparel provided the areola is not exposed in whole or in part.”

Richland Bookmart, 555 F.3d at 519.

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sensitivity studio, model studio, escort service, escort or any other term

of like import;

§ 7-51-1102(6) (line breaks added). An establishment that conforms to the terms of any

one of the three parts is subject to the Act’s provisions.

Plaintiffs’ complaint centers on the second part of this definition. Plaintiffs

contend that a grammatically correct reading requires treating the clause beginning with

“or wherein” as a modifier for “any premises to which the public patrons or members are

invited or admitted.” Appellants’ Rep. Br. at 16. This reading breaks up the provision

as follows:

Further, “adult-oriented establishment” means [1] any premises to which

the public patrons or members are invited or admitted and

[2A] that are so physically arranged as to provide booths, cubicles,

rooms, compartments or stalls separate from the common areas of the

premises for the purpose of viewing adult-oriented motion pictures,

or [2B] wherein an entertainer provides adult entertainment to a member

of the public, a patron or a member, when such adult entertainment is

held, conducted, operated or maintained for a profit, direct or indirect.

So construed, either [1] & [2A] or [1] & [2B] suffice to make an establishment an

adult-oriented one. That means that “[a]ny place which presents adult entertainment is,

by virtue of that fact an adult-oriented establishment and subject to the full force of the

act . . . .” Appellants’ Br. at 36.

Under this interpretation, the definition of “adult entertainment” becomes crucial

to determining the scope of the Act. Broken up into its logical components, that

definition reads:

“Adult entertainment” means [1] any exhibition of any adult-oriented

motion picture, live performance, display or dance of any type,

[A] that has as a principal or predominant theme, emphasis, or portion of

such performance,

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[i] any actual or simulated performance of specified sexual

activities8 or

[ii] exhibition and viewing of specified anatomical areas,9

[iii] removal of articles of clothing or appearing unclothed,

[iv] pantomime,

[v] modeling, or

[vi] any other personal service offered customers;

§ 7-51-1102(3) (line breaks, numeration, and emphasis added). Plaintiffs point to two

problems within this definition that, they claim, render the Act unconstitutionally

overbroad when combined with the definition of “adult-oriented establishment.”

First, there is no explicit requirement that adult entertainment be regularly

presented by or constitute a principal use of an establishment, in order for an

establishment to be subject to the Act under the second part of the “adult-oriented

establishment” definition. An establishment is subject to the Act if it “invites or admits”

“public patrons or members” onto its premises, “wherein an entertainer provides adult

entertainment,” § 7-51-1102(6), defined as “any exhibition of any adult-oriented motion

picture, live performance, display or dance of any type, that has as a principal or

predominant theme” any one of the six listed activities [i] – [vi], § 7-51-1102(3). On

Plaintiffs’ reading, an establishment that offers “any” single performance, whose

principal theme involves, for instance, the exhibition of specified anatomical areas,

would be subject to the Act’s requirements.

8

“Specified sexual activities” are further defined to mean:

(A) Human genitals in a state of sexual stimulation or arousal;

(B) Acts of human masturbation, sexual intercourse or sodomy; or

(C) Fondling or erotic touching of human genitals, pubic region, buttocks or female breasts.

Tenn. Code Ann. § 7-51-1102(27).

9

“Specified anatomical areas” are further defined to mean:

(A) Less than completely and opaquely covered:

(i) Human genitals;

(ii) Pubic region;

(iii) Buttocks; and

(iv) Female breasts below a point immediately above the top of the areola; and

(B) Human male genitals in a discernibly turgid state, even if completely opaquely covered;

Tenn. Code Ann. § 7-51-1102(24).

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Second, Plaintiffs point out that a wide range of expressive conduct suffices to

bring a performance or display within the scope of “adult entertainment.” Appellants’

Br. at 39. The themes that bring a performance under the umbrella of “adult

entertainment,” Plaintiffs insist, include those that do not describe erotic adult

entertainment exclusively but are also characteristic of mainstream artistic expression.

At the preliminary injunction hearing, Plaintiffs presented the testimony of Dr. Judith

Hanna, a cultural anthropologist at the University of Maryland, who testified that there

are “unlimited numbers” of “recognized performances” outside the adult-entertainment

setting, whose predominant themes include nudity, simulated sex, and erotic touching

between performers, and therefore, fit the definition of “adult entertainment.”10

Plaintiffs further submit that each of the expressive activities listed – including

“pantomime,” “modeling,” or “any other personal services offered customers” – suffices

on its own to classify a performance as adult entertainment, so long as that activity

constitutes a principal or predominant theme of the performance. Entertainment would

be “adult,” they argue, even if the removal of some articles of clothing, pantomime act,

or modeling at issue did not involve “specified sexual activities” or the exhibition of

“specified anatomical areas.”

In sum, Plaintiffs argue that the content of an individual performance determines

whether or not the Act is applicable to an establishment staging that performance. As

a consequence, numerous mainstream artistic venues that contemplate including in their

program even a single film, opera, ballet, or dance performance that fits the letter of the

“adult entertainment” definition, are likely to be chilled from engaging in protected

expression.

10

Dr. Hanna offered numerous examples of ballet, dance, dramatic, and operatic performances,

whose predominant themes conform to the principal or predominant themes listed in the definition of

“adult entertainment,” such as nudity, simulated sex, and touching between performers. In addition to

performances frequently cited in similar law suits such as Oh, Calcutta!, Salomé, and Hair, Dr. Hanna

identified and described, inter alia, the following: George Balanchine’s Prodigal Son ballet, which

culminates in “an erotic encounter . . . that’s portrayed on stage,” involving “touching of the body”;

Balanchine’s Bugak[u], whose main theme is erotic, and which culminates in a consummation of marriage;

a ballet, Mutations, and dance performances, Map Me and Untitled, that are performed in the nude; as well

as a number of others.

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Were Plaintiffs’ performance-based interpretation of the Act’s scope the only

plausible reading, the Act would be overly broad on its face. If “adult entertainment”

sweeps in mainstream artistic performances and if the presentation of a single

performance suffices to subject an establishment to the Tennessee Act, then the Act

applies to precisely the set of establishments that doomed the statutes noted earlier,

which were invalidated by this and other circuit courts. See Odle, 371 F.3d at 399;

Triplett Grille, 40 F.3d at 136; Conchatta Inc., 458 F.3d at 266; Carandola, Ltd., 303

F.3d at 516; Ways, 274 F.3d at 519.11

Facial invalidation is still inappropriate, however, if the statute is “readily subject

to a narrowing construction by the state courts,” Erznoznik v. Jacksonville, 422 U.S. 205,

216 (1975). “The key to application of th[e] [narrowing construction] principle is that

the statute must be ‘readily susceptible’ to the limitation; we will not rewrite a state law

to conform it to constitutional requirements.” American Booksellers Ass’n, 484 U.S. at

397. While we will not rewrite a state or local law, neither will we “assume that state

courts would broaden the reach of a statute by giving it an ‘expansive construction.’”

Richland Bookmart v. Nichols, 137 F.3d 435, 441 (6th Cir. 1998). And, as we noted in

the context of a related Tennessee statute, the presumption that state courts will favor the

narrower of two plausible constructions “is consistent with Tennessee law that provides

that such regulation of speech should be construed narrowly.” Ibid. (citing Davis-Kidd

Booksellers, Inc. v. McWherter, 866 S.W.2d 520, 526 (Tenn. 1993)).

Defendants put forth an alternative construction of the challenged provisions and

reject Plaintiffs’ claim that the Act sets up a performance-based standard for regulating

adult-oriented businesses. The second part of the “adult-oriented establishment”

11

As noted supra at 8–9 and as we explained in Odle, a law is overbroad because it fails to

“except ‘mainstream’ artistic or entertainment venues,” where protected expression that is “unlikely to

spawn harmful secondary effects” is presented – not because it fails to except other public places where

no protected expression is featured. 421 F.3d at 396; see also Giovani Carandola, Ltd. v. Bason, 303 F.3d

507, 516 (4th Cir. 2002) (explaining that a North Carolina statute was overbroad not because it applied to

many sites “far beyond bars and nude dancing establishments,” but because it applied specifically to sites

where mainstream artistic expression commonly takes place). Thus, the fact that the Act now before us

purports to apply only to public venues that provide “adult entertainment” – and not to all public places

or all venues that sell liquor – does not mean that this Act threatens fewer potentially impermissible

applications than did the statutes in Odle or Carandola.

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definition, Defendants argue, should not be read to mean that an isolated presentation

of “adult entertainment” suffices to subject a business to the Act’s regulation. Instead,

the last clause, beginning with “or wherein” should be read as modifying “booths,

cubicles, rooms, compartments or stalls,” rather than “premises.” Appellees’ Br. at 28-9.

Shelby County would read the provision as follows:

Further, “adult-oriented establishment” means [1] any premises to which

the public patrons or members are invited or admitted and that are so

physically arranged as to provide booths, cubicles, rooms, compartments

or stalls separate from the common areas of the premises

[2A] for the purpose of viewing adult-oriented motion pictures,

or [2B] wherein an entertainer provides adult entertainment to a member

of the public, a patron or a member, when such adult entertainment is

held, conducted, operated or maintained for a profit, direct or indirect.

That is, providing “adult entertainment” [2B] will only make an establishment

“adult-oriented” if entertainment is conducted in some kind of compartments separated

from the common area [1]. This reading considerably reduces, if not completely

eliminates, the alleged regulatory burden on mainstream artistic performances, since

such are not commonly conducted on premises with the specified interior arrangement.

We have noted that a limiting or narrowing construction of statutory language

is sustainable when “an express exception in the law’s text or other specific language

made the law ‘readily susceptible’” to such a construction. Odle, 421 F.3d at 396-97

(emphasis added). This Act does not have an “express exception” for performances that

have serious artistic value or establishments devoted principally to offering such

performances. Cf. Farkas v. Miller, 151 F.3d 900, 902 (8th Cir. 1998). However, the

Act does contain “specific language” that lends itself to two meanings. We agree with

Plaintiffs that Defendants’ narrowing construction is the less grammatical of the two

plausible interpretations of the language. We disagree, however, with the proposition

that grammatical inelegance makes an interpretation unfair or unsustainable. Nor does

the proposed narrowing construction require this court to trample on the principles of

federalism by “rewriting” a state law. On the contrary, principles of federalism lead us

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to take seriously the declaration of Tennessee courts that regulations of speech are to be

construed narrowly. See Richland Bookmart, 137 F.3d at 441(citing Davis-Kidd

Booksellers, Inc., 866 S.W.2d at 526). We have explained that it would “be improper

for this Court to supply limiting language . . . in order to preserve [a law’s]

constitutionality.” Triplett Grille, 40 F.3d at 136 (emphasis added). The Tennessee Act

does not compel us to “supply” limiting language. At most, it requires that we treat the

comma between “pictures” and “or wherein” as a drafting oversight, of the kind that

would normally be remedied by enclosing it in brackets and denoting it with “sic.”12

Absent any other textual signals that the comma was intended to broaden the reach of

the Act, there is no rule of law that compels us to assert the strictest tenets of English

grammar over the demonstrable intent of the legislators.13

The central inquiry in overbreadth analysis is whether protected expression will

be burdened by the actual enforcement of the Act or chilled by virtue of its sheer

presence on the books. With regard to the former, we are persuaded that the risk of

actual enforcement of the Act against mainstream artistic establishments is quite low:

unlike the lawmakers of Akron in Triplett Grille, 40 F.3d at 131, and Decatur County

in Odle, 421 F.3d at 396, who conceded that their regulatory schemes applied to

mainstream artistic performances, Tennessee and Shelby County disavow such a broad

reading of this Act, see Appellees’ Br. at 38–39.14 With regard to the latter risk, we

seriously doubt that operators of any mainstream artistic venue are likely to scrutinize

the provisions of a regulatory scheme aimed at “adult-oriented businesses,” conclude

12

As we do with statutory language routinely. See, e.g., DLS, Inc. v. City of Chattanooga, 107

F.3d 403, 406 (6th Cir. 1997); Cobb v. Contract Transp., Inc., 452 F.3d 543, 558 (6th Cir. 2006).

13

Indeed, established principles of statutory construction counsel that “the strict language” of a

statute yields to “the intention of the drafters,” should that intention be “demonstrably at odds” with the

results obtained by strict interpretation. United States v. Ron Pair Enters., 489 U.S. 235, 242 (1989)

(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).

14

Cases of overzealous enforcement against mainstream artistic venues, moreover, would and

should invite litigation by the affected parties on an as-applied basis. New York v. Ferber, 458 U.S. 747,

773–74 (1982) (stating that when overbreadth is not substantial, “whatever overbreadth may exist should

be cured through case-by-case analysis of the fact situations to which [a law’s] sanctions, assertedly, may

not be applied”) (quoting Broadrick v. Oklahoma, 413 U.S. 601 (1973)); see also N.Y. State Club Ass’n

v. City of New York, 487 U.S. 1, 14 (1988).

No. 08-5494 Entertainment Prod., et al. v. Shelby County, Page 20

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that the scheme will require their venues to obtain a license if certain performances are

offered, and be thereby deterred from staging Salomé, Prodigal Son, or Bugaku – on the

basis of a single comma.

We think that the definition of “adult-oriented establishment” is “readily

susceptible” to the narrowing construction that Defendants advocate. We recognize that

this does not automatically address the second problem with the definition of “adult

entertainment” – the apparent self-sufficiency of a predominant emphasis on

“pantomime,” “modeling,” or “any other personal service offered customers” to

transform a performance or exhibition into “adult entertainment.” “[T]he risk that this

definition might chill a range of protected speech” may have led us “to find it

unconstitutionally overbroad if it stood alone.” Deja Vu of Nashville, Inc., 274 F.3d at

388 (emphasis added). If we read “adult entertainment” in conjunction with the

narrowly construed definition of “adult-oriented establishment,” the hypothesized

unconstitutional applications dwindle in number, if not disappear. One cannot readily

imagine a non-adult modeling session or non-erotic pantomime performance taking

place in individualized booths anymore than one can imagine Balanchine’s ballets

screened routinely in such a setting.

The domain of expressive activities triggering the “adult entertainment” label

may be limited in yet another manner. In two decisions analyzing the Tennessee Act,

a federal district court found that the definition of “adult entertainment” is not overbroad

when the clause “any other personal service offered customers” is read in context. “The

phrase read in context of the entire definition clearly pertains and is limited to that

entertainment ‘which has a significant or substantial portion of such performance, any

actual or simulated performance of specified sexual activities or exhibition and viewing

of specified anatomical areas.” Belew, et al. v. Giles County Adult-Oriented

Establishment Board, et al., No. 1-01-0139, slip op. at *66 (M.D. Tenn. Sept. 30, 2005)

(emphasis added); Friedman, et al. v. Giles County Adult-Oriented Establishment Board,

et al., No. 1-00-0065 (M.D. Tenn. Sept. 29, 2005). We find that this is a sensible way

to interpret all of the expressive activities contained in the “adult entertainment”

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definition, which may appear devoid of sexually explicit content in isolation (i.e.,

removal of indeterminate articles of clothing, pantomime, modeling, or other personal

services). Following “the commonsense canon of noscitur a sociis – which counsels that

a word is given more precise content by the neighboring words with which it is

associated,” Williams, 128 S. Ct. at 1839, these activities constitute “adult

entertainment” only when they implicate “specified sexual activities” or “specified

anatomical areas.”15

We find that the Tennessee Act is readily susceptible to a narrowing construction

that would clearly except mainstream artistic venues from the licensing and regulatory

scheme. Because we find it improbable that any performances of serious artistic value

qualifying as “adult entertainment” would be staged in individualized booths, the

number of ostensibly impermissible applications of the Act is negligible and does not

rise to the level of real and substantial overbreadth. The district court did not err,

therefore, in denying the preliminary injunction on the basis that Plaintiffs did not

demonstrate a substantial likelihood of success in their challenges to the definitions of

“adult cabaret,” “adult-oriented establishment,” and “adult entertainment.”

D

Plaintiffs’ second challenge is to some of the activities prohibited by the Act.

The Act contains the following prohibitions:

(a) No operator, entertainer or employee of an adult-oriented

establishment, either on the premises or in relation to the person’s role

as an operator, entertainer, or employee of an adult-oriented

establishment, shall permit to be performed, offer to perform, perform,

15

The same “commonsense canon” serves to make more precise the meaning of “rooms” in the

challenged portion of the “adult-oriented establishment” definition. At oral argument, Plaintiffs attempted

to argue that even if Defendants’ narrowing construction is accepted, the Act is still overbroad because it

applies to establishments “so physically arranged as to provide . . . rooms . . . separate from the common

areas of the premises,” wherein adult entertainment is presented. Plaintiffs argued that the several separate

auditoria in mainstream movie theaters, for example, are such “rooms.” We disagree, and find that

“rooms” must be interpreted by reference to the neighboring terms (i.e., booths, cubicles, compartments,

and stalls). See Williams, 128 S. Ct. at 1839 (narrowing the meaning of “promotes” and “presents” to

activities with a “transactional connotation,” by reference to the other verbs in the series – “advertises,

“distributes,” and “solicits”).

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or allow patrons to perform sexual intercourse or oral or anal copulation

or other contact stimulation of the genitalia.

(b) No operator, entertainer or employee of an adult-oriented

establishment shall encourage or permit any person upon the premises to

touch, caress or fondle the breasts, buttocks, anus or genitals of any

operator, entertainer or employee.

(c) No entertainer, employee, or customer shall be permitted to have any

physical contact with any other on the premises during any performance

and all performances shall only occur upon a stage at least eighteen

inches (18") above the immediate floor level and removed at least six feet

(6') from the nearest entertainer, employee, or customer.

(d) (1) No employee or entertainer, while on the premises of an

adult-oriented establishment, may:

(A) Engage in sexual intercourse;

(B) Engage in deviant sexual conduct;

(C) Appear in a state of nudity; or

(D) Fondle such person’s own genitals or those of another.

(2) For the purpose of this section, “nudity” means the showing of the

human male or female genitals or pubic area with less than a fully opaque

covering, the showing of the female breast with less than a fully opaque

covering of any part of the nipple, or the showing of the covered male

genitals in a discernibly turgid state.

Tenn. Code Ann. § 7-51-1114. Plaintiffs contend that the prohibitions contained in § 7-

51-1114(b) and § 7-51-1114(c) are overbroad, especially in the context of the other

prohibitions in § 7-51-1114. The prohibitions are allegedly overbroad because they

apply to mainstream performances of artistic value – on Plaintiffs’ reading of the Act’s

“adult-oriented establishment” definition – and would effectively prohibit all the

performances about which Dr. Hanna testified. Since we determine that the Act is

susceptible to a narrowing construction that excepts mainstream artistic venues from its

reach, this line of argument is unavailing.

Further, Plaintiffs claim that the prohibitions are overbroad even if applied only

to adult-oriented venues such as their own adult cabarets because the breadth of physical

contact prohibited goes beyond what is necessary to address secondary effects and

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“impermissibly limits the expressive palette available to [erotic] performers.”

Appellants’ Rep. Br. at 14. In particular, § 7-51-1114(b) is allegedly overbroad because

it prohibits a performer’s “touching” or “caressing” herself or himself in the course of

her or his performance. Such restrictions, Plaintiffs assert, “directly circumscribe[] the

potential message” inherent in erotic dancing: Dr. Hanna testified that, for example, a

prohibition on “plac[ing] hands on the person’s hip [or] buttocks . . . would be silencing

part of their artistic expression,” as would a prohibition on “calling attention to [one’s]

body parts . . . [by] plac[ing] hands down the sides of [one’s] breasts or cup[ping] them.”

Appellants’ Br. at 24. Similarly, the prohibition on any contact, no matter how innocent,

between performers during a performance contained in § 7-51-1114(c), (“[n]o entertainer

. . . shall be permitted to have any physical contact with any other on the premises during

any performance”), is alleged to be overbroad for the same reasons. The impact of these

measures is claimed to be all the more burdensome because “[n]othing in the Act limits

the application of these restrictions to only those occasions when performers are scantily

clad”: a performer “may not touch a fellow dancer in a beekeeper’s suit.” Appellants’

Rep. Br. at 12. So burdening the expressive elements of erotic dance, Plaintiffs urge, is

unrelated to the Act’s stated purposes and needlessly suppresses protected erotic

expression.

We have consistently recognized that “nude or nearly nude dancing conveys an

endorsement of erotic experience, and is a protected form of expression[,] in the absence

of some contrary clue.” Richland Bookmart, Inc., 555 F.3d at 528 (quoting DLS, Inc.,

107 F.3d at 409) (internal quotation marks omitted). Nonetheless, a content-neutral

time, place, or manner regulation may burden this form of expression so long as the

burden is no greater than necessary to advance a legitimate government objective,

O’Brien, 391 U.S. at 377, and does not unreasonably limit alternative avenues of

communication, Renton, 475 U.S. at 47. Since the challenge to these provisions is

brought on the grounds of overbreadth, we must also determine whether the

impermissible applications – i.e., those that are unnecessary to advance the interests at

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hand and/or that excessively limit alternative avenues – are substantial in number,

absolutely and relative to permissible applications.

Considering the constitutionality of nudity bans in adult establishments, we have

invoked the Supreme Court’s determination that “nudity itself is not essential to the

eroticism that brings dancing under the protection of the First Amendment.” Richland

Bookmart, Inc., 555 F.3d at 530. Therefore, a ban on nudity does not effect a “complete

ban on expression,” but “merely,” and not unreasonably, “limits one particular means

of expressing the kind of erotic message being disseminated.” Ibid. (internal quotation

marks and citation omitted); see also City of Erie v. Pap’s A.M., 529 U.S. 277, 292-93

(2000).

The district court, relying on the Tennessee Court of Appeals’ decision in

American Show Bar Series, Inc. v. Sullivan County, 30 S.W.3d 324 (Tenn. Ct. App.

2000), suggested that both nudity and the prohibited touching are “beyond the

‘expressive scope of dancing itself’ and . . . not protected by the First Amendment.”

(citing Hang On, Inc. v. City of Arlington, 65 F.3d 1248, 1253 (5th Cir. 1995)). In other

words, the district court and the Tennessee Court of Appeals deemed these restrictions

to be constitutional because the expressive elements in the prohibited physical contact

are so minor as to be negligible, and do not interfere with a performer’s communication

of eroticism to its audience. Whatever modicum of expressive conduct is proscribed,

“nothing in constitutional jurisprudence . . . suggest[s] that patrons are entitled under the

First Amendment to the maximum erotic experience possible.” American Show Bar, 30

S.W.3d at 340 (quoting Threesome Entertainment v. Strittmather, 4 F. Supp. 2d 710, 724

(N.D. Ohio 1998)).

Plaintiffs contest this characterization of the prohibited activities and invoke the

Seventh Circuit’s reasoning in Schultz. 228 F.3d 831. In that case, the Seventh Circuit

determined that a prohibition on the “depiction of specified sexual activities”16 burdened

16

Defined to include “‘the fondling or other erotic touching of human genitals, pubic region,

buttocks, anus, or female breasts,’ sex acts, normal or perverted, actual or simulated, including intercourse,

oral copulation, masturbation, or sodomy[,] and excretory functions in connection with sexual activity.”

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the protected elements of erotic expression much more than a minimal-attire requirement

imposed by a nudity ban. Schultz, 228 F.3d at 847-48 (emphasis added). While

requiring dancers to wear pasties and G-strings “is a minimal restriction in furtherance

of the asserted government interests, and the restriction leaves ample capacity to convey

the dancer’s erotic message,” “restricting the particular movements and gestures of the

erotic dancer . . . unconstitutionally burdens protected expression[,]” because it

“deprives the performer of a repertoire of expressive elements with which to craft an

erotic, sensual performance and thereby interferes substantially with the dancer’s ability

to communicate her erotic message.” Schultz, 228 F.3d at 847.

Before we determine whether and to what extent the challenged prohibitions

interfere with the communication of an erotic message, however, we need to identify

with greater care what exactly is prohibited. See Williams, 128 S. Ct. at 1838 (“[I]t is

impossible to determine whether a statute reaches too far without first knowing what the

statute covers.”). Reading § 7-51-1114 as a whole, we are not persuaded that § 7-51-

1114(b) must be interpreted in the manner Plaintiffs proffer. The provision prohibits an

“operator, entertainer or employee” from “encourag[ing] or permit[ting] any person

upon the premises to touch, caress or fondle” the listed anatomical areas of “any

operator, entertainer or employee.” (emphasis added). If the drafters intended to prohibit

self-touching, the chosen construction is ill-fitted to the task: to forbid an entertainer

from touching herself, one would not commonly direct her not to “encourage or permit”

herself “to touch or fondle” herself. A straight-forward way to formulate such a

prohibition is to mandate, for example, that “no employee or entertainer . . . may[]

[f]ondle such person’s own genitals” or other anatomical areas — as the drafters of the

Act did in § 7-51-1114(d). The latter section illustrates that the drafters knew how to

formulate an unambiguous prohibition on touching or fondling oneself and others.

Moreover, there is no good reason to suppose that the direct and unambiguous

prohibitions in § 7-51-1114(d) are not exhaustive.

228 F.3d at 836-37.

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We read the challenged section 1114(b) as an enactment of vicarious liability for

operators or employees who encourage or permit patrons or entertainers to touch other

entertainers, perhaps without the latter’s explicit consent. All the provisions in section

1114 that concern touching or physical contact are intended to further one goal: the

elimination of the kind of sexual contact that is typically attended by adverse secondary

effects, such as disease or prostitution. The Act advances that goal in more than one

way: first, it explicitly prohibits employees and entertainers from certain kind of

touching of self and others, § 7-51-1114(d)(1)(D) (no “fondling” of one’s “own genitals

or those of another”), § 7-51-1114(d)(1)(B) (no engaging in “deviant sexual conduct”),

§ 7-51-1114(a) (no performing “sexual intercourse or oral or anal copulation or other

contact stimulation of the genitalia”). Second, the Act also includes prophylactic

measures that diminish the opportunities for the occurrence of prohibited sexual contact.

The six-foot buffer zone is one such measure: it obviously makes it difficult for any

contact to occur between persons separated by that distance, but does not in itself

prohibit contact. See DLS, Inc., 107 F.3d at 411.

The prohibition on “encouraging or permitting” physical contact is another such

measure: it makes it difficult for operators and employees to circumvent the ban on

sexual contact by encouraging patrons to initiate sexual contact with entertainers or other

employees without the latter’s explicit complicity. Section 7-51-1114(b) does not effect

any additional prohibitions on physical contact beyond what is already prohibited in

other sections. It merely spells out that an employee will be in violation of the Act for

encouraging prohibited conduct even if the employee did not engage in it himself,

mirroring the general statement of responsibility for violations of the Act. See § 7-51-

1113(d) (making an operator responsible for failure to “exercise due diligence in taking

reasonable efforts to prevent acts or omissions of any entertainers or employees

constituting a violation” of the Act).

That the prohibition on encouraging or permitting contact applies to more

anatomical areas than the direct prohibitions on contact in other sections is not

problematic: it is no different from “the addition of a buffer zone to the ban on contact”

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we addressed in DLS, Inc., 107 F.3d at 411 (emphasis added). Both prophylactic

measures are reasonably believed to be “necessary to achieve” the goal of preventing

prohibited contact, “given the repeated violations of the no-contact rule,” and the

“difficult[y] [of] determin[ing] . . . who was responsible” for the violations. Ibid. It is

not unreasonable to require that an operator refrain from encouraging a patron to touch

a performer’s breast, for example, because that action is likely to lead to the kinds of

sexual contact that is explicitly prohibited.17 Because we do not interpret this provision

as creating any additional constraints on a performer’s own movements, we do not think

it “regulat[es] nude dancing with such stringent restrictions that the dance no longer

conveys eroticism nor resembles adult entertainment,” Schultz, 228 F.3d at 847, and is

thus distinguishable from the provision considered in Schultz.

The second prohibition Plaintiffs challenge also warrants more careful

construction: “No entertainer, employee, or customer shall be permitted to have any

physical contact with any other on the premises during any performance,” and to that

effect, “all performances shall only occur . . . removed at least six feet (6') from the

nearest entertainer, employee, or customer.” § 7-51-1114(c). This provision should be

read in the same manner as we read a similarly-worded provision in Deja Vu of

Nashville18 that concerned entertainer-customer contact:

17

It is also possible – although not necessary – to read the provision as directing third parties

(i.e., operators or non-performing employees) not to encourage or permit an entertainer to touch herself

in the course of her performance, even in a manner that the entertainer herself is not directly prohibited

from doing. We think that common sense counsels against such an interpretation. Here too, however, any

possible unreasonable enforcement of the provision should invite litigation by the affected parties on an

as-applied basis. “[W]hatever overbreadth may exist should be cured through case-by-case analysis of the

fact situations to which [a law’s] sanctions, assertedly, may not be applied.” Ferber, 458 U.S. at 773-74

(citation omitted).

18

The provision in question read:

No customer shall be permitted to have any physical contact with any entertainer on the

licensed premises while the entertainer is engaged in a performance of live sexually

oriented entertainment. All performances of live sexually oriented entertainment shall

only occur upon a stage at least eighteen inches above the immediate floor level and

removed at least three feet from the nearest customer.

Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson County, 274 F.3d 377, 396 (6th Cir.

2001).

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Rather than reading the provision as enacting two separate requirements,

we read it as a single mandate, with the “no touch” portion setting forth

a broad policy statement that no contact between dancers and customers

shall occur during performances, and the “buffer zone” rule showing the

specific way to implement that policy by prohibiting clubs from allowing

customers within three feet of the stage during dances. Therefore, the

provision places a duty not on the entertainer to avoid touching

customers, but on the owners and operators of clubs to protect

entertainers from being touched by customers by requiring customers to

stay three feet away from the stage. . . . It would simply be nonsensical

for [the government] to put the onus of customer control on the

entertainer who is already removed at least three feet from the customer,

is engaged in live entertainment, and is, by definition, incapable of

preventing an approaching customer from touching her without engaging

in the prohibited touching herself.

Deja Vu of Nashville, Inc., 274 F.3d at 397-98 (emphasis added). Likewise, the

provision before us requires only that a six-foot distance between an entertainer and any

other entertainer, employee, or customer be assured during performances, and that

performances take place on an eighteen-inch stage. These spatial requirements ensure

that no contact occurs between a performer and any other person during a

performance.19 Analogous to § 7-51-1114(b), the six-foot buffer-zone and eighteen-inch

elevation rules spell out what “due diligence” requires of operators to prevent violations

of the explicit prohibitions of the Act. Because the first clause does not impose

additional prohibitions or duties beyond the buffer and height requirements contained

in the second clause, this provision is identical to the one we upheld in the context of an

as-applied challenge in DLS, Inc. 107 F.3d at 413.

Plaintiffs’ efforts to distinguish our decision in DLS, Inc. on the basis that we did

not adjudicate an overbreadth challenge, Appellants’ Rep. Br. at 15, are unpersuasive.

In that case, we found that Chattanooga’s six-foot buffer requirement survived

19

We do not think the provision intends to prohibit all contact among customers or non-

performing employees beyond what is explicitly prohibited in other sections, as an exceedingly literal

reading may suggest. In any case, neither Plaintiffs nor Defendants address the possibility that the County

may penalize adult establishments for casual contact among their customers or non-performing employees

during a performance. Accordingly, we do not consider this hypothetical possibility sufficiently “actual”

to weigh in our overbreadth analysis, and leave any contentious applications of this provision to as-applied

adjudication.

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intermediate scrutiny under O’Brien and Renton: it furthered important content-neutral

state interests of crime- and disease-prevention, the evidence relied on by Chattanooga

made it “reasonable to conclude that the six-foot rule would further the state interests,”

and it was “sufficiently narrowly tailored to be [a] valid regulation under the First

Amendment.” DLS, Inc., 107 F.3d at 410-3. Since Chattanooga’s buffer-zone

requirement did not impermissibly burden expression in adult cabarets similar to

Plaintiffs’, such a requirement cannot form a basis for a successful overbreadth attack

– at least not without a demonstration of a “substantial number” of unconstitutional

applications beyond those considered in DLS, Inc. See Richland Bookmart, Inc., 555

F.3d at 532; see also 729, Inc., 515 F.3d at 492 (holding that a requirement “that an

entertainer stay at least five feet away from areas being occupied by customers for at

least one hour after the entertainer performs semi-nude on stage” survives intermediate

scrutiny); Deja Vu of Nashville, Inc., 274 F.3d at 396 (holding that a prohibition on

customer-entertainer contact during performances and a three-foot buffer zone survives

intermediate scrutiny).

Plaintiffs do not bring to our attention any other allegedly unconstitutional

applications beyond those deemed insufficient to prevail on an as-applied challenge in

DLS, Inc. Therefore, the district court did not err in finding that Plaintiffs did not

establish a substantial likelihood of prevailing on the merits of their overbreadth

challenge to § 7-51-1114(b) and § 7-51-1114(c).

E

Next, Plaintiffs claim that the definitions of “adult cabaret” and “adult

entertainment” render the Act unconstitutionally vague. Plaintiffs complain that they

cannot “ascertain[] where the outer boundaries of the Act lie,” such that they may

“shape their conduct so as to avoid them.” Appellants’ Br. at 48. The complaints of

vagueness are coterminous with Plaintiffs’ complaints of overbreadth. The definition

of “adult cabaret” is vague, Plaintiffs allege, because there is nothing in the Act “to

explain[] or cabin the phrase ‘entertainment of an erotic nature.’” Appellants’ Br. at 50.

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Because we found that the definition of “adult cabaret” is not overbroad, we can readily

supply the explanatory or “cabining” language that Plaintiffs assert is wanting.

Establishments that “feature entertainment of an erotic nature, including exotic dancers,

strippers,” and so on, are merely examples, and do not augment the reasonably clear

meaning of “adult cabaret” offered in the first sentence of that definition. It is therefore

unnecessary to ask the questions to which Plaintiffs intimate there are no answers (e.g.,

“What is an exotic dancer?”). Ibid.

The definition of “adult entertainment” is the next target of a vagueness charge.

Recalling that this term means “any exhibition . . . that has as a principal or predominant

theme . . . any actual or simulated performance of specified sexual activities[,] . . .

removal of articles of clothing or appearing unclothed,” Plaintiffs intend to demonstrate

vagueness by posing questions based on that definition: “Would an adult nightclub be

subject to the Act if dancers there began their performances in street clothes or evening

gowns and stripped to bikini bathing suits?”; “Is it adult entertainment . . . [t]o remove

one’s coat and hat on stage? To shed an outer garment?” Appellants’ Br. at 51.

Under the narrowing construction to which the Act is readily susceptible, all

these questions are readily answered. If the “stripping to bikini bathing suits” is taking

place in “booths, cubicles, rooms, compartments or stalls separate from the common

areas of the premises” and is staged for profit “direct or indirect,” then the establishment

is subject to the Act. In sum, a narrowing construction sufficiently clarifies the parts of

this Act allegedly contaminated by vagueness. Thus, the district court did not err in

holding that a vagueness challenge is not likely to succeed on the merits.

F

Plaintiffs’ last claim – that the Act’s requirements will result in a drastic

reduction in the “quantity and accessibility of speech,” Appellants’ Br. at 53 – is also

predicated on the acceptance of Plaintiffs’ overbreadth and vagueness claims. Since we

do not accept Plaintiffs’ overly literal and expansive reading of the Act’s terms, we are

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equally unpersuaded that the Act’s provisions are “so onerous” as to cause the majority

of Memphis’s nightclubs to “cease presenting adult entertainment entirely.”

Finally, Plaintiffs contend that the district court erred in its determination that the

balance of equities disfavored a temporary injunction in their favor. Because the district

court correctly determined that Plaintiffs have not demonstrated a likelihood of success

on the merits of their claim, the issue of balancing equities is moot. See Hamilton’s

Bogarts, Inc., 501 F.3d at 649 (“[I]n a First Amendment case, the crucial inquiry is

usually whether the plaintiff has demonstrated a likelihood of success on the merits.

This is so because, as in this case, the issues of the public interest and harm to the

respective parties [i.e. balancing equities] largely depend on the constitutionality of the

statute” (internal quotation marks and citation omitted)).

III

For the foregoing reasons, we AFFIRM the district court’s denial of a

preliminary injunction.

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___________________________________________

CONCURRING ONLY IN THE JUDGMENT

___________________________________________

KAREN NELSON MOORE, Circuit Judge, concurring only in the judgment.

I believe that the district court did not abuse its discretion by denying the plaintiffs’

motion for a preliminary injunction. I do not join the majority’s opinion, and I concur

solely in the judgment affirming the district court’s judgment that the plaintiffs have not

satisfied the requirements for a preliminary injunction of the challenged provisions,

Tennessee Code Annotated § 7-51-1114(b) & (c).