Petition for Writ of Certiorari — Association of Club Executives of Dallas, Inc., et al., Petitioners v. City of Dallas, Texas

No. ________

IN THE

SUPREME COURT OF THE UNITED STATES

ASSOCIATION OF CLUB EXECUTIVES

OF DALLAS, INC., et al.,

v.

Petitioners,

CITY OF DALLAS, TEXAS,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROGER ALBRIGHT

T.CRAIG SHEILS

LATRICE ANDREWS

SHEILS WINNUBST

1701 N. Collins Blvd.

Suite 1100

Richardson, Texas 75080

(972) 644-8181

J. MICHAEL MURRAY

Counsel of Record

STEVEN D. SHAFRON

BERKMAN, GORDON,

MURRAY & DEVAN

55 Public Square

Suite 2200

Cleveland, Ohio 44113

(216) 781-5245

jmmurray@bgmdlaw.com

Counsel for Petitioners

QUESTIONS PRESENTED

1. The secondary effects doctrine of City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41 (1986), provides

that regulations adopted for the content-neutral

purpose of mitigating the claimed adverse secondary

effects associated with businesses offering sexually

oriented expression are subject to intermediate

scrutiny. Does that doctrine survive Reed v. Town of

Gilbert, 576 U.S. 155 (2015), and City of Austin v.

Reagan National Advertising of Austin, LLC, ___ U.S.

___, 142 S.Ct. 1464 (2022), which hold that facially

content-based laws are subject to strict scrutiny,

regardless of their content-neutral justifications?

2. City of Los Angeles v. Alameda Books, Inc., 535

U.S. 425 (2002), is a plurality decision addressing the

evidentiary burdens under the secondary effects

doctrine, which the lower courts have struggled to

apply. In this case, Petitioners presented extensive

evidence challenging the City’s rationale for an

ordinance requiring sexually oriented businesses to

close between 2:00 a.m. and 6:00 a.m. The district

court found that evidence to be compelling and granted

a preliminary injunction. The Fifth Circuit vacated the

injunction, holding that the district court held the City

to too high a standard. Thus, if the secondary effects

doctrine survives, the question presented is what

quantum of evidence is sufficient to cast doubt on a

municipality’s rationale for such an ordinance, under

the plurality opinion in Alameda Books?

3. Justice Kennedy provided the fifth vote for

reversal in Alameda Books, and the lower courts have

uniformly held his concurring opinion is controlling

under Marks v. United States, 430 U.S. 188 (1977).

i

Under his test, a city must show “that its regulation

has the purpose and effect of suppressing secondary

effects while leaving the quantity and accessibility of

speech substantially intact.” Id. at 449 (Kennedy, J.,

concurring). Here, the district court found that the

evidence established that the City’s Ordinance failed

that test as well, but the Fifth Circuit also rejected

that conclusion. Thus, the further question presented

is whether an ordinance requiring the closure of speech

businesses during certain hours, on a record showing

a substantial reduction of speech, violates Justice

Kennedy’s effect on speech test?

ii

PARTIES TO THE PROCEEDING

Petitioners Association of Club Executives of

Dallas, Incorporated, a Texas non-profit Corporation;

Nick’s Mainstage Inc.– Dallas PT’s, doing business as

PT’s Mens Club; Fine Dining Club, Incorporated, a

Texas Corporation, doing business as Silver City;

TMCD Corporation, a Texas Corporation, doing

business as The Men’s Club of Dallas; 11000 Reeder,

L.L.C., a Texas Limited Liability Company, doing

business as Bucks Wild; AVM-AUS, Limited, a Texas

limited partnership, doing business as New Fine Arts

Shiloh were the Plaintiffs in the district court and the

Appellees in the court of appeals.

Respondent is the City of Dallas, which was the

Defendant in the district court and the Appellant in

the court of appeals.

CORPORATE DISCLOSURE STATEMENT

Petitioner Fine Dining Club, Inc.’s parent

corporation is RCI Hospitality Holdings, Inc., a

publicly traded corporation that holds 10% or more of

Fine Dining Club, Inc.’s stock. None of the other

Petitioners have a parent company, and no publicly

traded company owns 10% or more of their stock.

iii

RELATED CASES

Association of Club Executives, Inc., et al. v. City

of Dallas, Texas, No. 3:22-cv-00177-M, U.S. District

Court for the Northern District of Texas. Preliminary

Injunction issued May 24, 2022.

Association of Club Executives, Inc., et al. v. City

of Dallas, Texas, No. 22-10556, U.S. Court of Appeals

for the Fifth Circuit. Judgment entered October 12,

2023. Petitions for rehearing and rehearing en banc

denied November 7, 2023.

iv

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING. . . . . . . . . . . . . iii

CORPORATE DISCLOSURE

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . iii

RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . iv

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . viii

PETITION FOR A WRIT

OF CERTIORARI . . . . . . . . . . . . . . . . . . . . . . . . 1

OPINIONS BELOW. . . . . . . . . . . . . . . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . 2

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

REASONS FOR GRANTING

THE WRIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

v

TABLE OF CONTENTS (cont’d)

Page

I.

THE SECONDARY EFFECTS DOCTRINE,

ON WHICH THE COURT OF APPEALS

BASED

ITS

DECISION,

IS

IRRECONCILABLE WITH THE COURT’S

DECISIONS IN REED V. TOWN OF

GILBERT, 576 U.S. 155 (2015), AND CITY OF

AU ST IN V. REAGAN N A T I O N A L

ADVERTISING OF AUSTIN, LLC, 142 S. CT.

1464 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

II. IMPORTANT QUESTIONS, ON WHICH

COURTS HAVE STRUGGLED, ARE

PRESENTED UNDER ALAMEDA BOOKS :

1) WHAT QUANTITY OF EVIDENCE MUST

A CHALLENGER SUBMIT TO CAST

DIRECT DOUBT ON A CITY’S RATIONALE

FOR A SECONDARY EFFECTS

ORDINANCE, UNDER THE PLURALITY

OPINION; AND, 2) DOES A CLOSING

HOURS ORDINANCE, ON A RECORD

SHOWING A SUBSTANTIAL REDUCTION

OF SPEECH, VIOLATE THE EFFECT ON

SPEECH TEST OF JUSTICE KENNEDY’S

CONTROLLING, CONCURRING OPINION . 22

Petitioners met Their Burden Under Both the

Plurality and Concurring

Opinions in

Alameda Books . . . . . . . . . . . . . . . . . . . . . . . . . 25

A. The Information Offered to Support the

Ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

vi

TABLE OF CONTENTS (cont’d)

Page

B. The Evidentiary Record About the

Ordinance . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Appendix

Opinion of the United States

Court of Appeals for the Fifth

Circuit (October 12, 2023) . . . . . . . . . . . . . App. 1

Memorandum of Opinion and Order

of the United States District Court

for the Northern District of Texas

(May 24, 2022) . . . . . . . . . . . . . . . . . . . . . App. 21

Order Granting Preliminary Injunction,

United States District Court for the

Northern District to Texas

(May 24, 2022) . . . . . . . . . . . . . . . . . . . . . App. 70

Order Denying Motion for Temporary

Restraining Order, United States District

Court for the Northern District

of Texas (January 28, 2022) . . . . . . . . . . App. 72

Order on Petition for Rehearing and

Rehearing en banc, United States

Court of Appeals for the Fifth Circuit

(November 7, 2023) . . . . . . . . . . . . . . . . . App. 73

vii

TABLE OF CONTENTS (cont’d)

Page

United States Const., amend. I . . . . . . . . . . . App. 75

United States Const., amend XIV . . . . . . . . . App. 76

Ordinance No. 32125 . . . . . . . . . . . . . . . . . . . App. 78

Dallas City Code Chapter 41A . . . . . . . . . . . App. 86

viii

TABLE OF AUTHORITIES

Page

CASES

Annex Books, Inc. v. City of Indianapolis, Ind.,

581 F.3d 460 (7th Cir. 2009),

appeal after remand, 624 F.3d 368

(7th Cir. 2010),740 F.3d 1136 (7th Cir.),

cert. denied, 574 U.S. 820 (2014) . . . . . . . . . . . 25

Annex Books, Inc. v. City of Indianapolis, Ind.,

740 F.3d 1136 (7th Cir.), cert. denied,

574 U.S. 820 (2014) . . . . . . . . . . . . . . . . 29, 35-36

BBL, Inc. v. City of Angola,

809 F.3d 317 (7th Cir. 2015) . . . . . . . . . . . . . . . 21

Cahaly v. Larosa, 796 F.3d 399 (4th Cir. 2015) . . . 13

Cent. Radio Co. Inc. v. City of Norfolk,

811 F.3d 625 (4th Cir. 2016) . . . . . . . . . . . . . . . 13

City of Austin v. Reagan National Advertising

of Austin, LLC, ___ U.S. ___,142 S.Ct. 1464

(2022). . . . . . . . . . . . . i-3, 5, 13, 14, 16-18, 20-22

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002) . . . . . . . . i, 3, 4, 17, 22-26, 35

City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) . . . . . . . . . . . . . i, 3, 17, 19, 21

ix

TABLE OF AUTHORITIES (cont’d)

Page

Flanigan's Enterprises, Inc. of Georgia v.

City of Sandy Springs, Georgia,

703 F. App'x 929 (11th Cir. 2017),

cert. denied, 138 S.Ct. 2623 (2018) . . . . . . . . . . 21

Free Speech Coalition, Inc. v.

Attorney General United States,

825 F.3d 149 (3rd Cir. 2016) . . . . . . . . . . . . 13, 21

Int'l Outdoor, Inc. v. City of Troy, Michigan ,

974 F.3d 690 (6th Cir. 2020) . . . . . . . . . . . . . . . 14

Lucero v. Early, 873 F.3d 466 (4th Cir. 2017) . . . . 13

Marks v. United States, 430 U.S. 188 (1977) . . . i, 23

Norton v. City of Springfield,

806 F.3d 411 (7th Cir. 2015) . . . . . . . . . . . . . 3, 14

Reagan National Advertising of Austin,

Incorporated v. City of Austin,

972 F.3d 696, 710 (5th Cir. 2020),

rev’d on other grounds sub nom.,

City of Austin v. Reagan National

Advertising of Austin, LLC,

__ U.S. ___, 142 S.Ct. 1464 (2022) . . . . . . . . . . 14

Reed v. Town of Gilbert,

576 U.S. 155 (2015) . . . . . . . . i-3, 5, 13, 14, 16-22

x

TABLE OF AUTHORITIES (cont’d)

Page

Wagner v. City of Garfield Heights,

577 F. App'x 488, 494 (6th Cir. 2014),

cert. granted, judgment vacated,

576 U.S. (2015) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Ward v. Rock Against Racism,

491 U.S. 781(1989) . . . . . . . . . . . . . . . . . . . . . . 19

Wollschlaeger v. Governor, Florida,

848 F.3d 1293 (11th Cir. 2017) . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISIONS

United States Const.,

amend. I . . . . . . . . . . . . . 1, 3-6, 13, 14, 16, 20, 35

United States Const., amend. XIV . . . . . . . . . . . . 1, 6

STATUTES, RULES AND REGULATIONS

28 U.S.C. § 1254(1). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

28 U.S.C. §1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Dallas Ord. 32125 . . . . . . . . . . . . . . . . . . . . . . . . . 1, 6

Dallas City Code, Chapter 41A . . . . . . . . . . . . . 2, 6, 9

xi

TABLE OF AUTHORITIES (cont’d)

Page

Dallas City Code, Section 41A-2(2) . . . . . . . . . . . . . 10

Dallas City Code, Section 41A-2(3) . . . . . . . . . . . . . 9

Dallas City Code, Section 41A-2(4) . . . . . . . . . . . . . 10

Dallas City Code, Section 41A-2(5) . . . . . . . . . . . . . 10

Dallas City Code, Section 41A-2(33) . . . . . . . . . . . . 11

Dallas City Code, Section 41A-2(34) . . . . . . . . . . . . 11

MISCELLANEOUS

Adam Liptak, Court’s Free-Speech Expansion Has

Far-Reaching Consequences, N.Y. TIMES

(Aug. 17, 2015) (quoting Floyd Abrams). . . . . . . 2

Anthony Lauriello, Panhandling Regulation

after Reed v. Town of Gilbert, 116 Colum.

L. Rev. 1105 . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Ashutosh Bhagwat, The Test That Ate

Everything: Intermediate Scrutiny

in First Amendment Jurisprudence,

2007 U.ILL.L. REV. 783 (2007) . . . . . . . . . . . . 20

Brian J. Connolly & Alan C. Weinstein, Sign

Regulation After Reed: Suggestions

for Coping with Legal Uncertainty,

47 URB. LAW. 569 (2015) . . . . . . . . . . . . . . . . . 20

xii

TABLE OF AUTHORITIES (cont’d)

Page

Genevieve Lakier, Reed v. Town of

Gilbert, Arizona, And the Rise

of the Anticlassificatory First

Amendment, 2016 Sup. Ct.

Rev. 233 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Geoffrey R. Stone, Content-Neutral Restrictions,

54 U. CHI. L. REV. 46 (1987) . . . . . . . . . . . . . . 19

Leslie Gielow Jacobs, Making Sense of

Secondary Effects Analysis After

Reed v. Town of Gilbert, 57 Santa

Clara L. Rev. 385 (2017) . . . . . . . . . . . . . . . . . . . 2

Ofer Raban, Content-Based, Secondary

Effects, and Expressive Conduct:

What in the World Do They Mean

(And What Do They Mean to the

United States Supreme Court)?,

30 SETON HALL L. REV. 551 (2000) . . . . . . . 19

xiii

PETITION FOR A WRIT OF CERTIORARI

Association of Club Executives of Dallas,

Incorporated, Nick’s Mainstage Inc.– Dallas PT’s, Fine

Dining Club, Incorporated, TMCD Corporation, 11000

Reeder, L.L.C., and AVM-AUS, Limited, petition the

Court for a writ of certiorari to review the decision of

the United States Court of Appeals for the Fifth Circuit

in this case.

OPINIONS BELOW

The decision of the Court of Appeals is published at

83 F.4th 958 (5th Cir. 2023), and is reproduced at App.

1-20. The order of the Fifth Circuit Court of Appeals

denying Petitioners’ separate petitions for panel

rehearing and rehearing en banc is set forth in the

Appendix at App. 73-74. The Memorandum and

Opinion of the District Court is published at 604 F.

Supp.3d 414 (N.D. Tex. 2022), and reproduced at App.

21-69. The district court’s order granting the

preliminary injunction is set forth at App.70-71. Its

order denying the motion for a temporary restraining

order is set forth at App. 72.

JURISDICTION

The Court of Appeals entered its judgment on

October 12, 2023. It denied Petitioners’ petitions for

rehearing and for rehearing en banc on November 7,

2023. This Court has jurisdiction under 28 U.S.C.

§ 1254(1).

CONSTITUTIONAL PROVISIONS AND

ORDINANCES INVOLVED

The First and Fourteenth Amendments to the

Constitution are reproduced at App.75-77. Dallas Ord.

2

32125 is reproduced at App. 78-85. Pertinent parts of

Chapter 41A, Dallas City Code, are reproduced at App.

86-94.

STATEMENT OF THE CASE

When this Court decided Reed v. Town of Gilbert,

576 U.S. 155 (2015), it was described as “a

blockbuster,”1 “a sea change,”2 and “a missile” shot

“into [the Court’s] own reasoning.”3 Reed held that

regulations of expression that, on their face, make

distinctions based on content, are subject to strict

scrutiny, regardless of a “benign motive [or] contentneutral justification.” Id. at 165. In City of Austin v.

Reagan National Advertising of Austin, LLC, ___ U.S.

___, 142 S. Ct. 1464 (2022), the Court reaffirmed that

core holding of Reed, while concluding that the

ordinance before it was facially content neutral and,

therefore, subject only to intermediate scrutiny.

While “injecting some much-needed clarity into

Adam Liptak, Court’s Free-Speech Expansion

Has Far-Reaching Consequences, N.Y. TIMES (Aug.

1

17, 2015) (quoting Floyd Abrams)

2

Wollschlaeger v. Governor, Florida, 848 F.3d

1293, 1332-33 (11th Cir. 2017) (en banc) (Tjoflat, J.,

dissenting)

Leslie Gielow Jacobs, Making Sense of

Secondary Effects Analysis After Reed v. Town of

Gilbert, 57 Santa Clara L. Rev. 385, 413 (2017).

3

3

First Amendment jurisprudence,” 4 Reed and City of

Austin have left a number knotty questions in their

wake. This case presents one of them: Does the

secondary effects doctrine of Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986), survive Reed and

City of Austin? That doctrine holds that content-based

regulations, enacted for the content-neutral purpose of

mitigating the adverse secondary effects claimed to be

associated with businesses offering sexually oriented

expression, are to be reviewed under intermediate,

rather than strict, scrutiny.

If this Court determines that the secondary effects

doctrine does survive Reed and City of Austin, then

this case raises two other important questions on

which courts have struggled since the Court decided

City of Los Angeles v. Alameda Books, Inc, 535 U.S.

425 (2002), over two decades ago: What quantum of

evidence offered by a challenger suffices to cast doubt

on a city’s rationale for a secondary effects ordinance,

under Justice O’Connor’s plurality opinion, and how

does an ordinance pass or fail the test set forth in

Justice Kennedy’s controlling, concurring opinion that

it have the “purpose and effect of suppressing

secondary effects, while leaving the quantity and

accessability of speech substantially intact.” Id. at 449

(Kennedy, J., concurring).

Norton v. City of Springfield, 806 F.3d 411, 413

(7th Cir. 2015) (Mannion, J., concurring); See also

Genevieve Lakier, Reed v. Town of Gilbert, Arizona,

And the Rise of the Anticlassificatory First

Amendment, 2016 Sup. Ct. Rev. 233, 234.

4

4

Introduction

Dallas is a late night city and has a vibrant latehours entertainment and art presence. This includes

adult entertainment at late night clubs and twentyfour hour adult bookstores, which are extremely

popular and well patronized by citizens who choose

that type of constitutionally protected expression.

These adult businesses, their employees, entertainers

and others depend upon those late-night hours for their

success and livelihoods.

Dallas passed an Ordinance closing, during the

hours of 2:00 a.m. to 6:00 a.m., not all entertainment

venues or retail outlets or restaurants, gas stations,

drug stores, grocery stores or other late night

enterprises, but only businesses offering erotic dance

performances protected by the First Amendment and

retail outlets offering constitutionally protected books,

magazines, DVDs, movies and videos with a sexually

oriented content. Petitioners challenged the Ordinance.

They argued it was a content-based ordinance that was

subject to, but could not satisfy, strict scrutiny.

They argued the Ordinance failed intermediate

scrutiny as well, under both the framework of the

plurality opinion in City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425 (2002), and Justice Kennedy’s

controlling concurring opinion in that case. They built

a record, under the burden shifting approach in Justice

O’Connor’s plurality opinion. That opinion requires a

city’s evidence to fairly support its rationale, which in

this case was that crime around the adult businesses

was substantial and problematic during the late night

hours, and that closing these businesses during those

5

hours would further a substantial government interest

in reducing crime and conserving police resources. The

plurality opinion allows a plaintiff to cast direct doubt

on that rationale by demonstrating that the city’s

evidence does not fairly support its rationale or by

offering evidence disputing the municipality’s findings.

Petitioners presented an extensive evidentiary

record, found by the district court to make a compelling

case that the City’s evidence did not fairly support its

rationale for the Ordinance. In addition, they offered

evidence and argument, also credited by the district

court, that the Ordinance failed Justice Kennedy’s test

that a law of this kind must have the purpose and

effect of reducing secondary effects while leaving the

quantity and accessibility of speech substantially

intact.

The district court issued a factually intensive

opinion, leading to its conclusion that Petitioners had

demonstrated a likelihood of success on the merits of

their First Amendment claim, regardless of whether

the Ordinance was tested under strict or intermediate

scrutiny. It, therefore, entered a preliminary injunction

against the enforcement of the ordinance.

On the City’s appeal, the Fifth Circuit vacated that

decision. It concluded that the Ordinance should be

analyzed as a content neutral law under intermediate,

rather than strict, scrutiny, holding “it would be a

mistake to interpret [Reed and City of Austin] as

silently spelling” the demise of the secondary effects

doctrine. App. 9. It added:

More to the point, whether to overrule or

modify Renton is the High Court’s business,

6

not ours. ‘Our job, as an inferior court, is to

adhere strictly to Supreme Court precedent,

whether or not we think a precedent’s best

days are behind it.’” United States v Vargas,

74 F.4th 673, 683 (5th Cir. 2023)(en

banc)(citing Mallory v. Norfolk S. Ry. Co., 143

S. Ct 2028, 2038 (2023).

App. 9.

It then faulted the district court’s application of

intermediate scrutiny. While it did not state that any

of the district court’s factual findings were clearly

erroneous, it determined that the district court had

“held the City’s evidence to a standard of exactitude

not required by the Supreme Court’s precedents.” App.

10. Concluding that Petitioners did not have a

likelihood of success on the merits of their First

Amendment claims, it vacated the district court’s

preliminary injunction.

Procedural History

On January 26, 2022, the Dallas City Council

adopted Ord. 32125 (“the Ordinance”), which amended

Chapter 41A of the Dallas Codified Ordinances

governing sexually oriented businesses. The Ordinance

requires sexually oriented businesses to close between

the hours of 2:00 a.m. and 6:00 a.m. The justification

advanced for the Ordinance was that it would reduce

crime and preserve police resources.

That same day, the Petitioners filed a verified

complaint and motion for a temporary restraining

order and preliminary injunction challenging the

Ordinance under the First and Fourteenth

7

Amendments, invoking the district court’s federal

question jurisdiction under 28 U.S.C. §1331, and

bringing suit pursuant to 42 U.S.C. §1983.

The district court denied the motion for a

temporary restraining order based on the

understanding the ordinance would not be enforced

before the preliminary injunction hearing. App. 72. The

City later agreed to withhold enforcement until the

district court ruled on the preliminary injunction

motion. ROA. 9919.5

The district court issued its opinion and order

granting a preliminary injunction on May 24, 2022.

The City appealed and the Fifth Circuit vacated its

decision on October 12, 2023. On November 7, 2023, it

denied Petitioners’ petitions for rehearing and

rehearing en banc.

Statement of Facts

Petitioners, Association of Club Executives of

Dallas, Inc., (“ACE”), a trade association whose

members include adult cabarets and adult

bookstores/arcades located in the City of Dallas, and

individual members of ACE that operate licensed

sexually oriented businesses in the City of Dallas,

have, for many years, as a part of the city’s energetic

late night culture, offered constitutionally protected

sexually oriented expression during the late night

hours to their patrons. Indeed, Petitioners’ businesses

are extremely popular and well patronized by citizens

5

“ROA” refers to the pagination of the record on

appeal in the Fifth Circuit.

8

who, for many years, have chosen to view that type of

constitutionally protected expression.

Petitioner 11000 Reeder, LLC, dba Bucks Wild, is

a 15,000 square foot adult cabaret that does not sell or

serve alcohol, but allows customers to bring in their

own alcoholic beverages until 2:00 a.m. (BYOB). Before

the enforcement of the Ordinance, it was open until

4:00 a.m. Sunday through Thursdays, 5:00 a.m. on

Fridays and 6:00 a.m. on Saturdays. ROA. 9480, 9483.

Petitioner TCMD Corp., dba The Men’s Club of

Dallas, is an upscale, 19,000 square foot adult cabaret

that has operated for 30 years. It holds a liquor license

from the Texas Alcohol Beverage Commission

(“TABC”), and is open until 2:00 a.m. Sunday through

Thursday, and was open until 4:00 a.m. on Friday and

Saturday before the enforcement of the Ordinance.

ROA. 9508, 9509.

Petitioner AVM-AUS, Ltd., dba New Fine Arts

Shiloh, is an adult bookstore/arcade that has been in

business since the 1960s. ROA. 1093. It was open

twenty-four hours a day before the Ordinance was

enforced. ROA. 1095.

Petitioner Nick’s Mainstage, Inc.-Dallas PT’s, dba

PT’s Mens Club (“PT’s”), is a BYOB adult cabaret that

has operated for the past 40 years. It is open from

11:00 a.m. until 2:00 a.m. on Monday through

Wednesday, and on Thursdays through Sundays, it

was open until 4:00 a.m. before enforcement of the

Ordinance. ROA. 1092, 1094.

Petitioner Fine Dining Club, Inc., dba Silver City

is an adult cabaret that holds a license from the TABC.

9

It operates from 11:00 a.m. to 2:00 a.m., on Sunday

through Thursday, and stayed open until 4:00 a.m. on

Friday and Saturday until the Ordinance was enforced.

ROA. 1092, 1094.

Petitioner Association of Club Executives of Dallas,

Inc., is a trade association comprised of adult cabarets

and adult bookstores/arcades that hold sexually

oriented business licenses from the City of Dallas.

ROA. 9524, 9527. The adult cabaret members licensed

by the TABC present topless dance performances to

their patrons, while the BYOB adult cabaret members,

who do not hold liquor licenses, present nude dance

performances to their patrons. ROA. 9467, 9476, 9482,

9495, 9529, 9950.

Like New Fine Arts Shiloh, the adult

bookstore/arcade members of the Association have a

business model and brand under which they operated

twenty-four hours a day, seven days a week. ROA.

9528.

Chapter 41A of the Dallas City Code governs

sexually oriented businesses such as Petitioners, and

defines those businesses by the content of the

expression that they present or disseminate to patrons.

App. 87. Section 41A-2(3) defines an “Adult Bookstore

or Adult Video Store,” in pertinent part, as

a commercial establishment that as one of its

principal business purposes offers for sale or

rental for any form of consideration any one or

more of the following: (A) books, magazines,

periodicals or other printed matter, or

photographs, films, motion pictures, DVD’s,

video cassettes or video reproductions, slides,

10

or other visual representations, that depict or

describe “specified sexual activities” or

“specified anatomical areas.”

App. 86.

Section 41A-2(4) defines an “adult cabaret” as a

“commercial establishment that regularly features the

offering to customers of adult cabaret entertainment.”

App. 86-87.

“Adult cabaret entertainment” in turn, is defined

in Section 41A-2(5) as “live entertainment that: (A) is

intended to provide sexual stimulation or sexual

gratification; and (B) is distinguished by or

characterized by an emphasis on matter depicting,

simulating, describing, or relating to “specified

anatomical areas” or “specified sexual activities.” App.

87.

Section 41A-2(2) defines an “Adult Arcade” as

any place to which the public is permitted or

invited wherein coin- operated or

slug-operated or electronically, electrically, or

mechanically controlled still or motion picture

machines, projectors, or other image-producing

devices are maintained to show images to five

or fewer persons per machine at any one time,

and where the images so displayed are

distinguished or characterized by the depicting

or describing of “specified sexual activities” or

“specified anatomical areas.

App. 86.

11

“Specified anatomical areas,” and “specified sexual

activities” are also terms of art. “Specified anatomical

areas,” is defined in Section 41A-2(33) as

(A) any of the following, or any combination of

the following, when less than completely and

opaquely covered: (i) any human genitals,

pubic region, or pubic hair;(ii) any buttock; or

(iii) any portion of the female breast or breasts

that is situated below a point immediately

above the top of the areola; or (B) human male

genitals in a discernibly erect state, even if

completely and opaquely covered.

App. 92.

“Specified sexual activities” is defined in Section

41A-2(34) as including:

any of the following: (A) the fondling or other

erotic touching of human genitals, pubic

region, buttocks, anus, or female breasts; (B)

sex acts, normal or perverted, actual or

simulated, including intercourse, oral

copulation, or sodomy; (C) masturbation,

actual or simulated; or (D) excretory functions

as part of or in connection with any of the

activities set forth in Paragraphs (A) through

(C) of this subsection.

App. 92-93.

The Ordinance threatens the livelihoods of the

more than 1,000 employees and independent contractor

performers who work at Dallas’ sexually oriented

businesses during the late night hours, and the

12

continued viability of the businesses themselves. ROA.

9530-32. During the course of the evidentiary hearing,

an exotic dance performer at Bucks Wild testified that

her ability to work during the late night hours four

days a week allows her to care for her disabled father,

a veteran, during the day, and to stay home with her

two year old son and put him to bed at night. ROA.

9466, 9468, 9470. Were she unable to continue to work

during the late night hours, she testified that she

would probably have to find another job, and move in

with other family members. ROA. 9469. Other

entertainers at Bucks Wild, she explained, choose to

perform during those late night hours for similar

reasons. ROA. 9470.

The owner of Buck’s Wild testified that

enforcement of the Ordinance would cause the club to

lose approximately 45% of its employees and

independent contractor performers, and suffer a

similar loss of its revenues. ROA 9489. The operator of

The Men’s Club of Dallas testified that club would be

forced to cut approximately 25% of its staff if the

Ordinance were to be enforced. ROA. 9516.

The vice-president of the Association gave an

overall view of the effect of the law on its members and

testified that losses resulting from the enforcement of

the Ordinance could not only force some of the

businesses to close, but that the business’ employees

and the independent contractor performers would also

suffer. The BYOB adult cabarets would be particularly

hard hit, he testified, because their business model is

built on being open after hours. ROA. 9531.

13

REASONS FOR GRANTING THE WRIT

I.

THE SECONDARY EFFECTS DOCTRINE, ON

WHICH THE COURT OF APPEALS BASED ITS

DECISION, IS IRRECONCILABLE WITH THE

COURT’S DECISIONS IN REED V. TOWN OF

GILBERT, 576 U.S. 155 (2015), AND CITY OF

AUSTIN V. REAGAN NATIONAL ADVERTISING

OF AUSTIN, LLC, 142 S. CT. 1464 (2022).

Reed v. Town of Gilbert, 576 U.S. 155 (2015),

fundamentally refocused the analysis in determining

whether a regulation of speech is content based, and

therefore, subject to strict scrutiny, or content neutral

and subject to intermediate scrutiny. Reed held that

the Town’s facially content-based sign code was subject

to strict scrutiny– notwithstanding its content-neutral

justification. Id. at 2224, 2228, 2231.

Reed’s impact was swiftly noted by the courts of

appeals. Free Speech Coalition, Inc. v. Attorney

General United States, 825 F.3d 149, 160 n.7 (3rd Cir.

2016)(“Reed represents a drastic change in First

Amendment jurisprudence”).

The Fourth Circuit Court of Appeals concluded

that Reed had abrogated its First Amendment

precedent holding that content-based regulations

justified by a content-neutral purpose were subject to

intermediate scrutiny. Cahaly v. Larosa, 796 F.3d 399

(4th Cir. 2015); Cent. Radio Co. Inc. v. City of Norfolk,

811 F.3d 625, 632 (4th Cir. 2016); Lucero v. Early, 873

F.3d 466, 471 (4th Cir. 2017).

The Sixth Circuit similarly recognized that

Reed required a different mode of analysis than it had

14

previously used to assess content neutrality: “The

Supreme Court has flatly confirmed the requirement to

apply Reed’s strict-scrutiny standard, after this court

had applied intermediate scrutiny by using a less

stringent “‘practical’ test for assessing content

neutrality. . . .” Int'l Outdoor, Inc. v. City of Troy,

Michigan, 974 F.3d 690, 706 (6th Cir. 2020), quoting

Wagner v. City of Garfield Heights, 577 F. App'x 488,

494 (6th Cir. 2014), cert. granted, judgment vacated,

576 U.S. (2015).

The Seventh Circuit likewise recognized that

“Reed understands content discrimination differently.”

Norton v City of Springfield, 806 F.3d. 411, 412 (7th

Cir. 2015).

The Fifth Circuit’s decision reviewed by this Court

in City of Austin v. Reagan National Advertising of

Austin, LLC, __ U.S. ___, 142 S. Ct. 1464 (2022),

agreed that Reed represented a “sea change” in First

Amendment law because now, at the first step of the

analysis of deciding whether a law is content based or

content neutral, the government’s justification or

purpose in enacting the law is irrelevant. Reagan

National Advertising of Austin, Incorporated v. City of

Austin, 972 F.3d 696, 710 (5th Cir. 2020), rev’d on

other grounds sub nom., City of Austin v. Reagan

National Advertising of Austin, LLC, __ U.S. ___, 142

S.Ct. 1464 (2022)(“Reagan I”).

In that decision, the Fifth Circuit considered the

effect of Reed on its prior cases and concluded that it

was wrong to have applied intermediate scrutiny to

content based laws enacted in furtherance of a contentneutral purpose:

15

This circuit has yet to take inventory of our

pre-Reed cases. We do so now. We had

previously held that “[a] statute that appears

content-based on its face may still be deemed

content-neutral if it is justified without regard

to the content of the speech .... Contentneutrality has continued to be defined by the

justification of the law or regulation, and this

court has consistently employed that test.”

Asgeirsson v. Abbott, 696 F.3d 454, 459–60

(5th Cir. 2012) (citing Ward v. Rock Against

Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105

L.Ed.2d 661 (1989) (“The principal inquiry in

determining content neutrality, in speech

cases generally and in time, place, or manner

cases in particular, is whether the government

has adopted a regulation of speech because of

disagreement with the message it conveys.

The government's purpose is the controlling

consideration.” (citation omitted))). The

Asgeirsson case predates Reed and cites to

Ward, which the Supreme Court addressed in

Reed.

Id. at 703.

As a consequence it held:

In the wake of Reed, our Asgeirsson precedent

must be revisited. Like the Ninth Circuit, our

pre-Reed case law ascribed to an incorrect

understanding of the test for

content-neutrality given in Ward. See

Asgeirsson, 696 F.3d at 459–60. Therefore,

Asgeirsson and any portion of a case that

relies on Asgeirsson's content-neutrality

16

analysis must be abrogated.

Id. In a footnote, it gave as examples nine of its

previous cases that had to be abrogated. Id. n.3. Four

of those decisions involved sexually oriented business

regulations that had been justified as being aimed at

ameliorating secondary effects and evaluated under

intermediate scrutiny. Id.

In this case, Petitioners urged the court below to

follow the panel opinion in Reagan I, because City of

Austin had reaffirmed the core holding of Reed. The

panel below however, retreated from the position set

out in Reagan I and concluded otherwise, reasoning

that “Any shadow cast on the secondary effects

doctrine by our Reagan I opinion has been dispelled by

City of Austin.” App. 8.

To the contrary, this Court’s decision in City of

Austin reaffirmed Reed’s central holding that “[a]

regulation of speech is facially content based under the

First Amendment if it ‘target[s] speech based on its

communicative content’– that is, if it ‘applies to

particular speech because of the topic discussed or the

idea or message expressed.’” Id. at 1471, quoting Reed,

576 U.S. at 163. A law that defines “regulated speech

by particular subject matter” is content based and

subject to strict scrutiny. Id. at 1474, quoting Reed at

576 U.S. at 163.

In concluding that the distinction between off

premise and on premise signs in the Austin ordinance

at issue was not such a law, the Court explained:

Unlike the regulations at issue in Reed, the

City’s off-premises distinction requires an

17

examination of speech only in service of

drawing neutral, location-based lines. It is

agnostic as to content.

Id. at 1471 (emphasis added).

The Court made the same point later in its opinion:

“Unlike the sign code at issue in Reed, however, the

City’s provisions at issue here do not single out any

topic or subject matter for differential treatment.” Id.

at 1472 (emphasis added). Accordingly, it reversed and

remanded the case for a determination whether the

Austin ordinance survives intermediate scrutiny.

Dallas’s Ordinance here does precisely what the

Court in City of Austin stated a content based law

does– it applies to expression based on its topic and

subject matter and singles it out for differential

treatment.

A look at the secondary effects doctrine bears out

its irreconcilability with both Reed and City of Austin.

The doctrine had its genesis in Renton v. Playtime

Theatres, Inc., 475 U.S. 41 (1986), and was reaffirmed

in Alameda Books. In each case, the Court held that,

because the zoning ordinance at issue had been

adopted to address adverse secondary effects claimed

to be associated with the presence of sexually oriented

businesses, the Court treated the laws as content

neutral and subjected them to intermediate, rather

than strict, scrutiny, because they were “justified

without reference to the content of the regulated

speech.” Renton, 475 U.S. at 48. (citations omitted).

See also Alameda Books, 535 U.S. at 448 (Kennedy, J.,

concurring).

18

Reed and City of Austin, however, rejected that

approach. The Court in Reed explained, in determining

whether a regulation is content based or content

neutral, a court must first look at “whether a

regulation of speech ‘on its face’ draws distinctions

based on the message a speaker conveys”; if it does,

that ends the inquiry. Id. at 163 (citation omitted).

Turning to the ordinance before it, the Court

found:

On its face, the Sign Code is a content-based

regulation of speech. We thus have no need to

consider the government's justifications or

purposes for enacting the Code to determine

whether it is subject to strict scrutiny.

Id. at 164-65.

The court of appeals in Reed had reasoned,

however, that Gilbert’s ordinance was content neutral

because of its content-neutral justifications and the

town’s lack of hostility toward the regulated

speech–the very particulars on which the secondary

effects doctrine is also premised. Id. at 162. The Court

rejected that approach:

But this analysis skips the crucial first step in

the content-neutrality analysis: determining

whether the law is content neutral on its face.

A law that is content based on its face is

subject to strict scrutiny regardless of the

government's benign motive, content-neutral

justification, or lack of “animus toward the

ideas contained” in the regulated speech.

19

Id. at 165 (citation omitted)(emphasis added).

The Court found the lower court’s reliance on Ward

v. Rock Against Racism, 491 U.S. 781(1989), to justify

its use of intermediate scrutiny, was misplaced:

The Court of Appeals and the United States

misunderstand our decision in Ward as

suggesting that a government's purpose is

relevant even when a law is content based on

its face. That is incorrect. Ward had nothing to

say about facially content-based restrictions

because it involved a facially content-neutral

ban....But Ward’s framework “applies only if a

statute is content neutral.”...Its rules thus

operate to “protect speech,” not “to restrict it.”

Reed, 576 U.S. at 166-67 (emphasis original) (citations

omitted).

Criticism of the inconsistency between the

secondary effects doctrine and the central premise

recognized in Reed, that facially content-based

regulations are to be reviewed under strict scrutiny,

regardless of their content-neutral justifications, is not

new. See Geoffrey R. Stone, Content-Neutral

Restrictions, 54 U. CHI. L. REV. 46, 115 (1987)

(describing Renton as “disturbing, incoherent, and

unsettling” and “threaten[ing] to undermine the very

foundation of the content-based/content-neutral

distinction”); Ofer Raban, Content-Based, Secondary

Effects, and Expressive Conduct: What in the World Do

They Mean (And What Do They Mean to the United

States Supreme Court)?, 30 SETON HALL L. REV.

551, 553 (2000) (“[T]he doctrine of secondary effects

obliterates the content-based doctrine, the doctrine to

20

which the doctrine of secondary effects was meant to be

a mere exception.”); Ashutosh Bhagwat, The Test That

Ate Everything: Intermediate Scrutiny in First

Amendment Jurisprudence, 2007 U.ILL.L. REV. 783,

797 (2007) (“The secondary effects doctrine is an

extremely odd one, as it seems clearly inconsistent

with the Court’s approach to content neutrality

elsewhere in its First Amendment jurisprudence....”).

And following the decision in Reed, scholars have

noted the irreconcilability of the secondary effects

doctrine with it. Brian J. Connolly & Alan C.

Weinstein, Sign Regulation After Reed: Suggestions for

Coping with Legal Uncertainty, 47 URB. LAW. 569,

598-99 (2015)(“The secondary effects doctrine is at odds

with both the Reed majority's ‘on its face’ rule and the

concerns about limiting disfavored messages

underlying that rule. . . .Moreover, the secondary

effects doctrine contradicts the Reed majority's

rationale underlying the ‘on its face” rule.’”); Anthony

Lauriello, Panhandling Regulation after Reed v. Town

of Gilbert, 116 Colum. L. Rev. 1105, 1140-41 (“[A]fter

Reed, it is still an open question if the secondaryeffects doctrine remains relevant in determining

content-based speech regulations.”)

While Reed and City of Austin provided clarity in

holding that “[a] law that is content based on its face is

subject to strict scrutiny regardless of the government’s

benign motive, content-neutral justification, or lack of

‘animus toward the ideas contained’ in the regulated

speech,” Reed, 576 U.S. at 165, the Court did not

address how that holding affects the status of the

secondary effects doctrine.

Indeed, the court below stated that, since neither

21

Reed nor City of Austin said anything about the

secondary effects doctrine, the doctrine has not been

abrogated, and continues to exist, and in doing so,

rejected the conclusion of the Fifth Circuit panel in

Reagan I that strict scrutiny applies to laws regulating

sexually oriented businesses. App.7-10.

Other courts, too, have recognized the disconnect

between the secondary effects doctrine and Reed’s

methodology, but have concluded that the doctrine still

exists. See, e.g., Flanigan's Enterprises, Inc. of Georgia

v. City of Sandy Springs, Georgia, 703 F. App'x 929,

935 (11th Cir. 2017), cert. denied, 138 S.Ct. 2623

(2018) (“There is no question that Reed has called into

question the reasoning undergirding the

secondary-effects doctrine.”); BBL, Inc. v. City of

Angola, 809 F.3d 317, 326 n.1 (7th Cir. 2015)

(recognizing that Reed “clarified the concept of

‘content-based’ laws but noting that it did not “think

Reed upends established doctrine for evaluating

regulation of businesses that offer sexually explicit

entertainment.” ); Free Speech Coalition, 825 F.3d 149,

161 n.8 (“Although we do not reach the issue, we agree

with the dissent that it is doubtful that Reed has

overturned the Renton secondary effects doctrine.”); id.

at 174 (“The secondary effects doctrine thus seems

logically irreconcilable with Reed.”)(Rendell, J.,

dissenting).

But if the core holding of Reed, approved in City of

Austin, stands, that a content based regulation of

speech that defines its applicability by specific subject

matter and topic (which is what a regulation of

sexually oriented businesses does) is subject to strict

scrutiny, then the secondary effects doctrine cannot

stand.

22

Otherwise, the central holding of Reed, as

reaffirmed in City of Austin, that strict scrutiny

applies to a facially content based regulation of speech

regardless of a content neutral purpose and lack of

hostility to the speech, will be subject to broad

exceptions which will swallow the rule enunciated in

that case.

This case squarely presents the opportunity to

resolve the fundamental inconsistency between Reed

and City of Austin on the one hand, and the secondary

effects doctrine on the other.

II. IMPORTANT

QUESTIONS,

ON WHICH

COURTS HAVE STRUGGLED, ARE

PRESENTED UNDER ALAMEDA BOOKS : 1)

WHAT QUANTITY OF EVIDENCE MUST A

CHALLENGER SUBMIT TO CAST DIRECT

DOUBT ON A CITY’S RATIONALE FOR A

SECONDARY EFFECTS ORDINANCE, UNDER

THE PLURALITY OPINION; AND, 2) DOES A

CLOSING HOURS ORDINANCE, ON A RECORD

SHOWING A SUBSTANTIAL REDUCTION OF

SPEECH, VIOLATE THE EFFECT ON SPEECH

TEST

OF

JUSTICE

KENNEDY’S

CONTROLLING, CONCURRING OPINION.

Justice O’Connor’s plurality opinion in Alameda

Books set out a burden-shifting framework in

considering a challenge to a law aimed at curbing the

secondary effects claimed to be associated with

sexually oriented businesses. She explained:

[A] municipality may rely on any evidence that

is ‘reasonably believed to be relevant’ for

23

demonstrating a connection between speech

and a substantial, independent government

interest. This is not to say that a municipality

can get away with shoddy data or reasoning.

The municipality's evidence must fairly

support the municipality's rationale for its

ordinance. If plaintiffs fail to cast direct doubt

on this rationale, either by demonstrating that

the municipality's evidence does not support

its rationale or by furnishing evidence that

disputes the municipality's factual findings,

the municipality meets the standard set forth

in [City of] Renton [v. Playtime Theatres, Inc.,

475 U.S. 41 (1986)]. If plaintiffs succeed in

casting doubt on a municipality's rationale in

either manner, the burden shifts back to the

municipality to supplement the record with

evidence renewing support for a theory that

justifies its ordinance.

Id. at 438 (internal citations omitted).

Justice Kennedy provided the fifth vote for reversal

in Alameda Books and the lower courts, including the

Fifth Circuit in this case, have uniformly held that his

concurring opinion represents the controlling one

under the rule of Marks v. United States, 430 U.S. 188

(1977). Justice Kennedy explained that government

cannot address the adverse secondary effects claimed

to attend adult speech by reducing the speech itself

and cautioned:

[A] city may not regulate the secondary effects

of speech by suppressing the speech itself....

[A] city must advance some basis to show that

its regulation has the purpose and effect of

24

suppressing secondary effects, while leaving

the quantity and accessibility of speech

substantially intact.... The rationale of the

ordinance must be that it will suppress

secondary effects and not by suppressing

speech.

Id. at 445, 449-50. He went on:

It is no trick to reduce secondary effects by

reducing speech or its audience; but a city may

not attack secondary effects indirectly by

attacking speech.

Id. at 450.

It has been 22 years since Alameda Books was

decided. As the Seventh Circuit observed in one of its

three opinions that ultimately struck down an

ordinance restricting the hours of operation of adult

bookstores, the decision in Alameda Books has

provided little guidance to lower courts:

The parties have pressed on us dozens of

precedents, from this circuit and elsewhere,

that do more to show the problems of

interpretation and application created by the

fractured decision in Alameda Books than to

establish any concrete legal rule. Few of these

decisions offer much guidance, either to us or

to the district court on remand, because few

deal with hours-of-operation rules applicable

to businesses that do not offer on-site viewing.

It is accordingly unnecessary for us to canvass

the dozens of appellate decisions that have

struggled to understand and apply Alameda

25

Books. For example, Center for Fair Public

Policy v. Maricopa County, 336 F.3d 1153 (9th

Cir.2003), and Richland Bookmart, Inc. v.

Knox County, 555 F.3d 512 (6th Cir.2009),

both sustained regulations applicable to book

and video stores, but only after concluding

that the plaintiffs had not undermined the

justifications for the laws. We refrain from a

survey, which would lengthen this opinion

without edifying the reader.

Annex Books, Inc. v. City of Indianapolis, Ind., 581

F.3d 460, 466 (7th Cir. 2009), appeal after remand, 624

F.3d 368 (7th Cir. 2010),740 F.3d 1136 (7th Cir.), cert.

denied, 574 U.S. 820 (2014).

This case presents the perfect vehicle to clarify

both the burden shifting approach of the plurality and

the effect on speech test of the concurrence.

Petitioners met Their Burden Under Both the

Plurality and Concurring

Opinions in

Alameda Books.

In this case, over the course of a three day hearing,

Petitioners offered abundant evidence to cast doubt on

the rationale for the Ordinance and to demonstrate

that the data on which the law was adopted was

“shoddy.” They also demonstrated that the Ordinance

would have the effect of reducing and suppressing

speech. The district court considered that evidence, and

made detailed factual findings, consuming twenty-one

pages of its thirty-nine page opinion, explaining how,

on this record, Petitioners had met their burden under

the plurality opinion in Alameda Books, as well as

under Justice Kennedy’s controlling concurring opinion

26

in that case.

The Fifth Circuit vacated that decision, however,

without any meaningful discussion of those factual

findings, or concluding that any of them were clearly

erroneous. Without exhaustively reciting all of the

evidence Petitioners mustered, some examples of the

evidence they offered to meet their burden follow, and

demonstrate that this case is a perfect vehicle for

elucidation of the tests set forth in Alameda Books that

courts have struggled to apply.

A. The Information Offered to Support the

Ordinance

The Ordinance was adopted at the request of the

Dallas Police Department (“Department”) following

presentations it made to two City Council committees

in December 2021, and presentations to the entire City

Council on January 5 and January 14, 2022.

Lieutenant Stephen Bishopp, one of the City’s Rule

30(b)(6) deposition witnesses, holds a Ph.D. in

Criminology and is trained in statistical analysis and

research design. ROA. 9344. He is the commander in

charge of the data collection process for crime statistics

and information for the City of Dallas. ROA. 9776. He

collected data of crime incidents, arrests, and calls for

service between the hours of 10:00 p.m. to 6:00 a.m.

within a 500 foot radius of 35 locations where there

were sexually oriented business licenses in place over

the three year period 2019-2021.6 The 35 locations

6

Although the data actually covered 34 1/2

months, both the presentations to Council and the

27

consisted of:

9 adult bookstores/arcades

10 alcohol licensed topless adult cabarets

9 BYOB nude adult cabarets

7 not operating sexually oriented business.

He then put that information into various slides and

bar graphs that were presented to Council comparing

crime data between the hours of 10:00 p.m. and 2:00

a.m., and the hours of 2:00 a.m. to 6:00 a.m. to support

the Ordinance requiring closure during those latter

hours. ROA. 9345, 9352, 9942-75, 9976-9987.

B. The Evidentiary

Ordinance

Record

About

the

He readily acknowledged there were limitations to

his presentation. It was not a crime study, nor was it

an academic study of the kind he was familiar with in

connection with his doctoral training. Indeed, he was

not asked to do such a study. Rather, the information

he presented was simply a report, an exploratory look

at the crime data. ROA. 9770-01.

Lieutenant Bishopp acknowledged there were

many other late night businesses open between the

hours of 2:00 a.m. and 6:00 a.m. in Dallas, including

convenience stores, gas stations, drugstores, retail

parties referred to it as a three year period. ROA. 9708,

9725.

28

shops, grocery stores, hotels and motels, non-adult

nightclubs, and restaurants. But, no data about crime

within 500 feet of those businesses during the late

night hours was collected. ROA. 9361-63.

Thus, the data he presented did not compare crime

around the adult businesses to crime around

appropriate control sites, even though he agreed he

could have selected proper control sites with which to

make that comparison. ROA. 9365. See also ROA.

9770-01, 9428, 9432. Indeed, he admitted that he did

not apply any sort of methodological research design in

evaluating the crime data he collected, and did not

perform a multi-variate regression analysis of the data

to control for variables. ROA. 9770-01.

Consequently, Lt. Bishopp admitted that he had no

way of knowing whether crime within 500 feet of the

sexually oriented businesses was less, more or the

same as crime within a 500 foot radius of other late

night enterprises. ROA. 9365, 9428, 9432. In fact, in

answer to a question by the court, he acknowledged

that “it’s possible that those same statistics apply to

crime generally in Dallas during those hours.” ROA.

9711.

Similar shortcomings led the Seventh Circuit to

hold that an Indianapolis ordinance requiring adult

bookstores to close between midnight and 10 a.m., and

all day on Sunday was unconstitutional:

The current justification is weak as a

statistical matter. The City did not use a

multivariate regression to control for other

potentially important variables, such as the

presence of late-night taverns. The change in

29

the number of armed robberies is small; the

difference is not statistically significant. The

data do not show that robberies are more

likely at adult bookstores than at other latenight retail outlets, such as liquor stores,

pharmacies, and convenient stores, that are

not subject to the closing hours imposed on

bookstores. . . .

Annex Books, Inc. v. City of Indianapolis, Ind., 740

F.3d 1136, 1138 (7th Cir.), cert. denied, 574 U.S. 820

(2014).

Petitioners showed there were other problems with

the Dallas’s crime data as well, not the least of which

was that of the 35 addresses used to compile the crime

data, according to Lt. Bishopp, seven of them – fully

20%– did not have an operating sexually oriented

business on it. ROA. 9353. By including locations

without an operating adult business, Dallas’s crime

data were suspect ab initio. App. 52. See also ROA.

9355, 9360, 9977.7 What is more, violent crime actually

increased, from 7 incidents to 13 incidents, within 500

feet of those seven vacant locations between the hours

of 2:00 a.m. and 6:00 a.m., compared to the hours of

10:00 p.m. to 2:00 a.m., undermining the rationale for

the Ordinance that shutting the adult businesses

during those hours would reduce crime. ROA. 9397.

7

Dallas acknowledged that three of the seven

locations were non-operational during the entire three

year period. It suggested, however, that some of the

other locations had an operating adult business on it

during part of the three year period. ROA. 9616-19.

30

The City’s data showed that when property crime

and violent crime data within 500 feet of the 35

locations were examined across 2019, 2020 and 2021,

there were fewer combined property crimes and violent

crimes within 500 feet of the sexually oriented

business locations between the hours of 2:00 a.m. and

6:00 a.m., the hours the Ordinance closes the

businesses, than between the hours of 10:00 p.m. and

2:00 a.m.

Petitioners also established that the number of

arrests for violent crime within 500 feet of the sexually

oriented businesses during the hours of 2:00 a.m. to

6:00 a.m., were low. There were just 11 violent crime

incidents, between 2:00 a.m. and 6:00 a.m.,within 500

feet of the nine adult bookstores over the course of the

three years, an average of one incident every three

months within 500 feet of one of the nine retail outlets,

while none occurred during that same period at the

other eight. ROA. 9780-81.

The 66 violent crime incidents reported over three

years within 500 feet of the nine BYOB nude adult

cabarets averages to a single incident around one

cabaret every 16.5 days, and none at the remaining

eight. And the 45 reported violent crime incidents

within 500 feet of the ten topless cabarets with liquor

licenses over the course of three years means that, on

average, just one incident occurred every 24 days

within 500 feet of one of those locations, and none at

the others. ROA. 9395-96.

Petitioners also showed that arrests for violent

crimes within 500 feet of the sexually oriented

businesses between 2:00 a.m. and 6:00 a.m. were

exceedingly rare from 2019-2021: two near the adult

31

bookstores, eleven near the BYOB adult cabarets and

just seven within 500 feet of the topless cabarets.

Viewed more broadly, the crime incidents within

500 feet of the adult businesses represented a

minuscule portion of crime in Dallas. Petitioners

catalogued all crimes in Dallas for the years 2020 and

2021, and the City acknowledged that the data were

similar for 2019. ROA. 9830-32, 9834-35, Exhibits 9,

10, 13 and 14.

From 2019-2021, there were more than 316,000

crimes reported in the City of Dallas. ROA. 10602. The

399 total crime incidents within 500 feet of the 35

sexually oriented business locations between 2:00 a.m.

and 6:00 a.m., during that same time frame however,

represents just 0.0012623– 12/100 of 1%– of the crime

in Dallas. ROA. 10602. Violent crimes reported within

500 feet of the sexually oriented businesses, when

compared to the number of violent crimes throughout

the City, were an equally tiny percentage, 38/100 of

1%. ROA. 9837, 10604.

Petitioners also established that from 2019 to

2021, custodial arrests within 500 feet of the adult

businesses were lower between the hours of 2:00 a.m.

and 6:00 a.m., the hours the Ordinance requires the

businesses to close, as compared with the hours of

10:00 p.m. to 2:00 a.m.

Dallas’s reliance on the calls for service data to

support the law was undermined and cast doubt on the

Ordinance’s rationale when Petitioners showed that

the calls did not have to come from the sexually

oriented business itself, or relate to the business; if a

call for service came from a convenience store that

32

happened to be within 500 feet of one of the 35 sexually

oriented business locations used by the City, that

particular call for service would be included in the data

reported. ROA. 9800. No analysis was done to

determine how many of the Priority 1 calls, the most

serious calls, actually emanated from an event that

took place at the sexually oriented businesses, as

opposed to some location within 500 feet of one of

them. ROA. 9800.

More significantly, as Lt. Bishopp acknowledged,

the theory of the Ordinance is that closing the

businesses between 2:00 a.m. and 6:00 a.m. will reduce

calls for service and conserve police resources by

reducing crime. Under that rationale, he agreed that

he would expect the alcohol licensed cabarets, which

were closed between 2:00 a.m. and 6:00 a.m., five days

a week, to have fewer Priority 1 calls for service than

the BYOB cabarets, which were open after 2:00 a.m.

most days of the week, and the adult bookstores,

which were open twenty-four hours. But the data

showed that the topless clubs, which were closed

beteen 2 am and 6 am five days a week, had more

Priority 1 calls for service than the BYOB cabarets and

the adult bookstores during those hours. ROA 9800-02.

Petitioners also cast doubt on the City’s crime data

generated by a police task force that stepped up

enforcement for a period of time in the Northwest

police district, an area of Dallas where a number of

adult businesses are located. App. 55-56; ROA. 9345,

9352, 9942-75, 9976-9987. More specifically, the police

department formed the Northwest Task Force after six

homicides took place in 2020 and 2021 in the

Northwest police district, an area of Dallas where a

33

number of sexually oriented businesses are located.

Two of the six homicides had no connection to the

sexually oriented businesses, while three or four had

some nexus to an adult nightclub. ROA. 9566, 9992-94.

Those three or four homicides represent a tiny fraction

of Dallas’s homicides in 2020 and 2021– citywide there

were a total of 530 homicides in that two year period.

ROA. 10538.

The vast majority of the citations and arrests made

by the Northwest Task Force– which added an

additional 8 officers to patrol the area during the late

night hours– were the result of routine traffic stops for

going through a red light, turning right on red without

stopping, expired license plates, and similar offenses,

and were not the result of incidents at the City’s

sexually oriented businesses. ROA. 9411.

Those traffic stops, in turn, led to arrests for

individuals with outstanding warrants for offenses that

had taken place in the past or, if probable cause to

search a stopped vehicle was present, an arrest for

contraband in the vehicle. ROA. 9411. And of those

arrests and the citations the Task Force issued, there

was no evidence, other than proximity, of a nexus

between those events and any of the sexually oriented

businesses in the area. ROA. 9953, 9416-18, 9385.

Indeed, as the City admitted, adding eight additional

officers to step up enforcement would lead to increased

stops and arrests that otherwise would not have taken

place, regardless of where in the City and the time of

day the stepped up enforcement occurred. App. 55-56;

ROA. 9412.

In addition, contrary to the City’s claim, the City’s

34

own crime statistics showed that the Northwest

District, where many of the sexually oriented

businesses are located, is not a high crime area in the

city. It ranked sixth lowest of the seven police districts

in homicides in 2021, and fifth lowest in 2020. ROA.

10601. It was sixth in the number of crimes against

persons both in 2020 and in 2021. ROA. 10598. And, it

ranked sixth when robberies were combined with

crimes against persons during those two years. ROA.

10599.

When homicides, aggravated assaults, sexual

assaults and robberies were combined, the Northwest

District ranked fifth out of the seven in both 2020 and

2021. ROA. 10600. See also ROA. 9833-34.

Moreover, there were fewer arrests around the

adult bookstores during the hours that the City wants

them to close than between the hours of 10:00 p.m. and

2:00 a.m. The number of violent crime arrests within

500 feet of the nine bookstores was low to begin with,

but dropped to just two arrests between the hours of

2:00 a.m. and 6:00 a.m., over a three year period when

compared to the five arrests that occurred between

10:00 p.m. to 2:00 a.m. ROA. 9979.

The five hundred 911 calls within 500 feet of the

nine bookstore locations between 2:00 a.m. and 6:00

a.m., cited by the Fifth Circuit, represents just 17 more

calls than between 10:00 p.m. and 2:00 a.m. over the

course of three years, or less than a single additional

call every two months within 500 feet of one store and

none around the other eight.

Finally, Lt. Bishopp, the City’s representative,

35

acknowledged that none of the three academic studies

cited in the slide presentations addressed an hours of

operation law, and that he would not use them as a

basis to support the hours of operation regulation that

the City adopted. ROA. 9812-13.

This case presents the perfect vehicle to clarify the

burden shifting approach, as Petitioners offered

abundant evidence over a three day evidentiary

hearing casting doubt on the Dallas’s rationale for its

law, which the district court found as a factual matter

sufficient to have met that burden.

It is also an appropriate vehicle for the Court to

address the application of Justice Kennedy’s

controlling, concurring opinion in Alameda Books.

The district court found, as fact, that a substantial

number of patrons visit the sexually oriented

businesses after 2:00 a.m.; that clubs earn a significant

portion of their revenue after that time; and, that

many of the dancers employed by Petitioners work

other jobs or have child care obligations, which means

they can only perform during the late night hours,

including after 2:00 a.m. As a result, the quantity and

accessibility of speech was not left substantially intact.

App. 66. The Fifth Circuit concluded, however, that

the Ordinance had to force Petitioners out of business

to violate the First Amendment. So long as they have

a reasonable opportunity to operate their businesses,

the Ordinance withstood Justice Kennedy’s

proportionality test. App. 19.

Its reasoning on that score again conflicts with the

Seventh Circuit’s final decision in Annex Books, which

held Indianapolis’s closing law unconstitutional under

36

Justice Kennedy’s opinion:

That the City's regulation takes the form of

closure is the nub of the problem. Justice

Kennedy, whose vote was essential to the

disposition of Alameda Books, remarked that

“a city may not regulate the secondary effects

of speech by suppressing the speech itself.” 535

U.S. at 445, 122 S.Ct. 1728 (opinion

concurring in the judgment). Yet that's what

Indianapolis has done. The benefits come from

closure: shuttered shops can't be robbed at

gunpoint, and they lack customers who could

be mugged. If that sort of benefit were enough

to justify closure, then a city could forbid adult

bookstores altogether.

740 F.3d at 1138.

It rejected Indianapolis’s argument– the position

taken by the Fifth Circuit— that speech was not

reduced because “customers are free to patronize stores

during the hours they are allowed to be open.” Id.

This case presents an ideal vehicle to clarify what

it means for a law to have “the purpose and effect of

suppressing secondary effects, while leaving the

quantity and accessibility of speech substantially

intact,” and what a challenger must show under that

test.

37

CONCLUSION

For the foregoing reasons, Petitioners request that

the Court grant their petition for a writ of certiorari.

Respectfully submitted,

ROGER ALBRIGHT

T.CRAIG SHEILS

LATRICE ANDREWS

SHEILS WINNUBST

1701 N. Collins Blvd.

Suite 1100

Richardson, Texas 75080

(972) 644-8181

J. MICHAEL MURRAY

Counsel of Record

STEVEN D. SHAFRON

BERKMAN, GORDON,

MURRAY & DEVAN

55 Public Square

Suite 2200

Cleveland, Ohio 44113

(216) 781-5245

jmmurray@bgmdlaw.com

Counsel for Petitioners