Petition for Writ of Certiorari — Colacurcio v. City of Kent

Suprone Court, U.S.

ae FILED

/ {98 205 8 WN 231998

OFFICE OF THE CLERK

In The

Supreme Court of the United States

*

Frank Colacurcio, Jr., David Ebert,

and Steve Fueston, d/b/a DDF&S Investment Co.,

Petitioners,

City of Kent,

Respondent.

S

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

*

PETITION FOR WRIT OF CERTIORARI

+

Of Counsel: Gitpert H. Levy*

Suite 200

P. CAMERON DeEVoRE Market Place Two

KraiGc BAKER

2001 Western Avenue

Davis WRIGHT TREMAINE LLP Seattle, WA 98121

2600 Century Square

1501 Fourth Avenue (206) 443-0670

Seattle, WA 98101 Counsel for Petitioners

Frank Colacurcio, Jr.,

David Ebert, and

Steve Fueston, d/b/a

DDF&S Investment Co.

*Counsel of Record

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 342-2831

20\ as

QUESTIONS PRESENTED

1. What is the appropriate level of First Amendment

protection for sexually explicit non-obscene speech, and what

is the standard for measuring regulations that abridge such

speech, assuming it is entitled to lower protection than other

forms of expression?

2. What are the evidentiary standards for determining a

government’s true “predominate purpose” when deciding

whether a regulation is content-based or content-neutral under

the First Amendment?

3. What is the meaning of the intermediate scrutiny

test’s “narrow tailoring” requirement in the context of regula-

tions of sexually explicit, non-obscene speech?

4. May a trial court grant summary judgment to a gov-

ernment in a First Amendment challenge in the face of uncon-

troverted evidence that the regulation forecloses an entire

unique medium of expression, as well as substantial evidence

that the regulation’s “predominate purpose” was the suppres-

sion of speech?

i

RULE 29.6 LISTING

DDF&S Investment Co. has no parent corporation, and

no publicly held company owns ten percent or more of the

corporation’s stock.

TABLE OF CONTENTS

QUESTIONS PRESENTED.................... teen’

SY I feos Ud oo ve ous iv ck ooo ok

CONSTITUTIONAL AND STATUTORY PROVISIONS

RSS at Da gence ee er

lL.

THIS COURT SHOULD GRANT CERTIORARI

TO ADDRESS THE IMPORTANT BUT UNSET-

TLED QUESTIONS OF “WHAT IS THE APPRO-

PRIATE LEVEL OF FIRST AMENDMENT

PROTECTION FOR SEXUALLY EXPLICIT

NON-OBSCENE SPEECH?” AND “WHAT IS

THE STANDARD FOR MEASURING REGULA-

TIONS THAT ABRIDGE SUCH SPEECH,

ASSUMING IT IS ENTITLED TO LOWER PRO-

TECTION THAN OTHER FORMS OF EXPRES-

eth carl niet audition ao...

A. The Ninth Circuit Recognized the Law’s

Lack of Clarity on This Question .........

B. The Several Opinions in This Court’s Deci-

sion in Barnes v. Glen Theatre, Inc., 501 U-S.

560 (1991), Have Resulted in Confusion in

ee ee ee

C. The Confusion Occasioned by Barnes Has

Caused Courts to Ignore Other Decisions of

in LE eli ree

iv

TABLE OF CONTENTS -— Continued

Page

Il. THIS COURT SHOULD GRANT CERTIORARI TO

ADDRESS THE IMPORTANT AND UNSETTLED

QUESTION OF WHAT THE EVIDENTIARY STAN-

DARDS ARE FOR DETERMINING THE GOVERN-

MENT’S TRUE “PREDOMINATE PURPOSE”

WHEN DECIDING WHETHER A REGULATION IS

CONTENT-BASED OR CONTENT-NEUTRAL

UNDER THE FIRST AMENDMENT............. 12

A. The Ninth Circuit Recognized the Law’s Lack

of Clarity on This Question............... 12

B. This Court’s Jurisprudence Leaves the

Answer to This Question Unsettled ........ 13

C. The Lower Federal Courts and State Courts of

Last Resort Have Articulated Different

Answers to This Question................. 17

Ill. THIS COURT SHOULD GRANT CERTIORARI

TO RESOLVE THE UNSETTLED QUESTION

OF THE MEANING OF THE INTERMEDIATE

SCRUTINY TEST’S “NARROW TAILORING”

REQUIREMENT IN THE CONTEXT OF REGU-

LATIONS OF SEXUALLY EXPLICIT NON-

oe Ee pra Fe ae 21

IV. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE NINTH CIRCUIT’S AFFIR-

MANCE OF THE DISTRICT COURT’S GRANT

OF SUMMARY JUDGMENT IN THE FACE OF

UNCONTROVERTED EVIDENCE THAT THE

REGULATION FORECLOSED AN ENTIRE

UNIQUE MEDIUM OF EXPRESSION, AS

WELL AS SUBSTANTIAL EVIDENCE THAT

THE PREDOMINATE PURPOSE OF THE REG-

ULATION WAS THE SUPPRESSION OF

SPEECH, CONFLICTS WITH DECISIONS OF

SE EE Pita g bn eo SK FaH RAE eee thas 24

CaN ee oben cdwvin avid ss ee ed oun awbw eds 30

TABLE OF AUTHO” “IES

Page

Feperat Cases

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484

CEU eas b Sean eunkbeases ids cho tes Leltee 22, 23

Ambassador Books & Video, Inc. y. City of Little

Rock, 20 F.3d 858 (8th Cir. 1994).................. 18

Avalon Cinema Corp. v. Thompson, 667 F.2d 659 (8th

i MONEE F434 obs Gecsteecest sane ote 18

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)

pHURRED PESO UPECAR CE e dba ots Fo Mae De 24 Oe ae

Board of Trustees v. Fox, 492 U.S. 469 CRUE <0 635s 11, 23

Chesapeake and Potomac Tel. Co. v. United States, 42

F.3d 181 (4th Cir. 1994), vacated on other grounds,

PO ees. GED CIOs ci a ove vacoree cides eee. 23

Church of the Lukumi Babalu Aye, Inc. vy. City of

Se, Fee Ue. SIO CIOGI is oo oo cee 16

City Council v. Taxpayers for Vincent, 466 U.S. 789

CWO i6k cesce seer et caG ce sue re se are a 16

City of Cincinnati v. Discovery Network, Inc., 507

ae ee GIN 6 irs 85 oh da 22, 23

City of Dallas v. Stanglin, 490 U.S. 19 (1989)......... 24

City of Ladue v. Gilleo, 512 U.S. 43 (1994)........ 26, 29

City of Las Vegas v. Foley, 747 F.2d 1294 (9th Cir.

ae Sad kc haha SpA NTS Le oat e ee 20

GEG aah 0 0e cc a, PAs Be oe Sea passim

Cleveland Area Bd. of Realtors v. City of Euclid, 88

Pome Gene SO FONE cd a, ck es oe 18

vi

TABLE OF AUTHORITIES — Continued

Page

Cohen v. California, 403 U.S. 15 (1971) ..........0065 30

DLS, Inc. v. City of Chattanooga, 107 F.3d 403 (6th

Se TEs 68s eens vheus eo ceeab ees Moor thee eared 18

Edwards v. Aguillard, 482 U.S. 578 (1987) ............ 16

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)..... 9

Faraone v. City of East Providence, 935 F. Supp. 82

3 3, | ner errr yerire sy were aye eae 10

Farkas v. Miller, 151 F.3d 900 (8th Cir. 1998)........ 7, 8

Florida Bar v. Went-for-It, Inc., 515 U.S. 618 (1995) .... 22

Fraternal Order of Police Hobart Lodge #121, Inc. v.

Hobart, 864 F.2d 551 (7th Cir. 1988) ............... 18

Frisby v. Schultz, 487 U.S. 474 (1988) ............008- 27

Goldberg v. Whitman, 743 F. Supp. 943 (D. Conn.

kg | ELECT ERE E oe ee ee aes 19

Grosjean v. American Press Co., 297 U.S. 233 (1936) .... 16

Grossbaum v. Indianapolis-Marion County Bldg.

Auth., 100 F.3d (287 (7th Civ. 1996)... 0c ccwesssess 15

Hart Bookstores v. Edmiston, 612 F.2d 821 (4th Cir.

SE ON cb REA 6 4-6 ree eae ee eo es 17

International Eateries of Am., Inc. v. Broward County,

ite Bite eek, BS Ae). y MMR MONET ul ee 7

J & B Entertainment, Inc. v. City of Jackson, 152 F.3d

I Ge Nees Cac Sota cc ee ( Pee > Se

J.L. Spoons, Inc. v. City of Brunswick, ___ F. Supp. 2d

__, No. 1:99CV0477, 1999 WL 322999 (N.D.

Se Ae SOE coi sb on cwkbes ehey aw kneeda oo ee 24

Jamison v. Texas, 318 U.S. 413 (1943)................ 26

oo

Vil

TABLE OF AUTHORITIES — Continued

Page

Lovell v. City of Griffin, 303 U.S. 444 (1938) ......... 26

MD II Entertainment, Inc. v. City of Dallas, 28 F.3d

re Ge eG ids Vd wih bon Choke neck vdueceu: 10

Marks v. United States, 430 U.S. 188 (1977).......... vs 9

Martin v. City of Struthers, 319 U.S. 141 (1943)....... 26

Metromedia, Inc. v. City of San Diego, 453 U.S. 490

ROE Bidicciite tae i niwen Na aN nied ee Ga wk os oo a 16

Miller v. Johnson, 515 U.S. 900 (1995) ............... 16

Minneapolis Star & Tribune Co. v. Minnesota Comm'r

af mavemied,: SEO Ui. 57S (AGES oso. cakes cdvncs cae 16

N.W. Enterprises, Inc. v. City of Houston, 27

wee. ae Fo O0.D. Tem. TSGB ok ioc vac cece 19

Nakatomi Invs. Inc. v. City of Schenectady, 949

Fy Se UE APE Ne UID i s cb enls odie bo vcacbyecens 7

National Endowment for the Arts v. Finley, 524 U.S.

Se RC ino kde KK ike bdo a BES TE Chae hilccc<. 9

News Am. Publ’g., Inc. v. FCC, 844 F.2d 800 (D.C.

Cy Sachs dete cba esk +-enes abicm aan ae acral 16

Phillips v. Borough of Keyport, 107 F.3d 164 (3d Cir.

SP AeheksSawdatscaeicteac ds ci tous elue eo 10

Piece Meal Ltd. v. Village of Bellwood, No. 90 C 7131,

1991 WL 211292 (N.D. Ill. Oct. 10, 1991).......... 14, 18

Reno v. ACLU, 521 U.S. 844 (1997) ............ 9, 10, 28

Richland Bookmart, Inc. v. Nichols, 137 F.3d 435 (6th

Sh Sard vev a svideweny tie rele oa oe cence beret 10

San Francisco Arts & Athletics, Inc. v. United States

Olympic Comm., 483 U.S. 522 (1987)............... 23

Vili

TABLE OF AUTHORITIES — Continued

Page

Schad v. Mount Ephraim, 452 U.S. 61 (1981).......... 26

Schneider v. State (Town of Irvington), 308 U.S. 147

Sid 5.0.6 99000 D RARER CS Re Oe OER ee eee ee 26

Schultz v. City of Cumberland, 26 F. Supp. 2d 1128

AE, TU HS a SI RPA nla ware pia eee 8

Somers Realty Corp. v. Harding, 886 F. Supp. 386

eee ae Eh cb can erie eed cae das eres sebuedes 19

Suburban Video, Inc. v. City of Delafield, 694

ee ee eT rT 18

Texas v. Johnson, 491 U.S. 397 (1989)................. 8

Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th

ice irs ig cet Pear “es

Turner Broad. Sys. v. FCC, 512 U.S. 622 (1994)....... 17

Turner Broad. Sys. v. FCC, 520 U.S. 180 (1997)....21, 22

United States v. Eichman, 496 U.S. 310 (1990) ........ 17

United States v. Lovett, 328 U.S. 303 (1946)........... 16

United States v. O’Brien, 391 U.S. 367 (1968)..... passim

University Books & Video, Inc. v. Metropolitan Dade

County, 33 F. Supp. 2d 1364 (S.D. Fla. 1999)....... 10

Vandenplas v. City of Muskego, 753 F.2d 555 (7th Cir.

FUG vie cdc ceerececwhsneviw ne CCOCeVCLER keen oie 18

Ward v. Rock Against Racism, 491 U.S. 781

CP hie eeu dckh sade tesa aed eecaheudeeemnk 14, 21, 22

Stare CASES

Antonello v. City of San Diego, 93 Cal. Rptr. 820 (Cal.

le GG GUE EE Ads 08h 0 508 rennseesnekn ens cintesss 19

Connor v. Town of Hilton Head Is., 442 S.E.2d 608

OS i SRR RS ee re ehey Yip ee ey 1]

TABLE OF AUTHORITIES — Continued

Page

DCR, Inc. v. Pierce County, 964 P.2d 380 (Wash. App.

Se ih ob sirk waar Che od bd 0 eke a cds wales 22, 28

Discotheque, Inc. v. City Council of Augusta, 449

ee ee Cs COE os oo aoe ce to Veeveaerure cower 3 17

Georgia v. Cafe Erotica, Inc., 500 S.E.2d 574 (Ga.

hae a aie tne are kia a eee ae iN a a 10

Goldrush Il v. City of Marietta, 482 S.E.2d 347 (Ga.

SUE iso SU ay 6 Ceres bERA is ae e bsp dae beeen ds 11, 19

Hamilton Amusement Ctr. v. Verniero, 716 A.2d 1137

eo wah e ae uh ag ee anes ak Oia wee S sores 10, 12

Ino Ino v. City of Bellevue, 936 P.2d 154 (Wash. 1997) .... 28

Pap’s A.M. v. City of Erie, 719 A.2d 273 (Pa. 1998),

cert. granted 119 S. Ct. 1753 (U.S. May 17, 1999)

Se Eo Ns wb care Gove Tee eu re eer a

T & D Video, Inc. v. City of Revere, 670 N.E.2d 162

ek ac a dd GREK Go 6 Oo ee CA eae kas 12

Town of Islip v. Caviglia, 540 N.E.2d 215 (N.Y.

Ps 55 54.4: 4 BOSS 0 CER Ne HO a ee ide 306 Pan 89

STATUTES

ee ae i ecu ieaceniede sup weve l

Wash. Rev. Code § 9A.28.030 (1998) ................. 24

Wash. Rev. Code § 9A.44.010(2) (1998)............... 27

ee a I Oa 6's od tins dede sees cueves i..2

TABLE OF AUTHORITIES — Continued

Page

MIsCELLANEOUS

Alexander M. Bickel, The Least Dangerous Branch

COURIER <n ebie wes ccksucevaakienandssesereeeoes 17

Ashutosh Bhagwat, Purpose Scrutiny in Constitu-

tional Analysis, 85 Cal. L. Rev. 297 (1997) ......... 15

Elena Kagan, Private Speech, Public Purpose: The

Role of Governmental Motive in First Amendment

Doctrine, 63 U. Chi. L. Rev. 413 (1996).......... 6, 15

Erwin Chemerinsky, Constitutional Law (1997)....... 6, 13

Laurence Tribe, American Constitutional Law (2d ed.

Ee ey re Pr =) oe ne ee 6

Leon Friedman, Purpose, Intent and Motive in Consti-

tutional Litigation, 596 Prac. L. Inst./Litig. 713

(ODORS ks 0850 60S 5s cance Verh ies care ee eG bar ceeee 15

Richard H. Fallon, Jr., The Supreme Court, 1996 Term

~ Forward: Implementing the Constitution, 111

SEGTU. Ei. GW. Fee CU OeP hc wo dynneGsleswecveseaseces 14

Robert L. Stern et al., Supreme Court Practice (7th

OE... Fee & bowecha ads wetksescdeeenelaense ae 11

Robert Post, Recuperating First Amendment Doctrine,

Je eee Oe 8) eee rr ee 10

l

PETITION FOR WRIT OF CERTIORARI

Petitioners Frank Colacurcio, Jr., David Ebert, and Steve

Fueston, d/b/a DDF&S Investment Co. (collectively, “Col-

acurcio”) respectfully petition for a writ of certiorari to

review the judgment of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS AND ORDERS BELOW

The opinion of the court of appeas is reported at 163

F.3d 545 and can be found at Appendix A. The memorandum

order of the district court granting Respondent’s Motion for

Summary Judgment is reported at 944 F. Supp. 1470 and

appears at Appendix B. The Order of the court of appeals

denying the petition for rehearing is unpublished and appears

at Appendix C.

JURISDICTION

The United States Court of Appeals for the Ninth Circuit

entered its judgment on December 8, 1998. Petitioners timely

filed a Petition for Rehearing and Suggestion for Rehearing

En Banc, which was denied on March 26, 1999. This Petition

is timely filed within ninety days of that date as provided in

Supreme Court Rule 13.3. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

This case involves portions of the First Amendment to

the United States Constitution, which in pertinent part pro-

vides as follows:

Congress shall make no law . . . abridging the

freedom of speech... .

This case also involves the City of Kent’s Adult Enter-

tainment Ordinance, Kent City Code (“KCC”) Chapter 5.10,

which in pertinent part states, “No dancing or adult entertain-

ment by an entertainer shall occur closer than ten (10) feet to

any patron.” The entire ordinance appears at Appendix D.

2

STATEMENT OF THE CASE

Petitioners sought to open a non-alcoholic adult night-

club in the City of Kent, Washington, (the “City”) that was to

feature nude and semi-nude stage dancing and semi-nude

table dancing.' A table dance is an erotic dance commonly

performed in close proximity to the patron and is featured in

many adult nightclubs throughout the United States. At the

time, nude table dancing was prohibited, but table dancing

with a full bikini was permitted.

Petitioners found a site for their nightclub, but the City

refused to process the permit because the parcel had been

incorrectly zoned for adult entertainment. Petitioners then

challenged the constitutionality of the City’s adult entertain-

ment zoning ordinance in federal court. The district court

ruled that the zoning ordinance violated the First Amendment

because it permitted adult entertainment on only one site in

the entire City of Kent. The parties then entered into a

settlement agreement, which the district court approved on

August 25, 1994. The settlement agreement required the City

to treat Petitioners’ proposed business activity as a lawful

non-conforming use. See App. A at A-2 to A-4.

Immediately after the settlement agreement, the City

Council declared a moratorium on adult business permits.

Though the settlement precluded the City from applying the

moratorium to Petitioners, the City Council simultaneously

began consideration of amendments to its existing adult enter-

tainment regulatory scheme. A mere six months after the

successful challenge to the zoning ordinance, the City

adopted amendments to the City Code that had the effect of

imposing a complete ban on table dancing, including table

dancing with a full bikini.

! Though laws around the country have a variety of different

definitions of “semi-nude,” Petitioners use the term in this Petition to mean

that female dancers would be wearing at least both halves of an opaque

bikini.

3

As amended, Kent City Code (“KCC”) § 5.10.110 A and

§ 5.10.120 A(2) require “[a]]! dancing and adult entertain-

ment [to] occur” on “a stage or platform at least twenty-four

(24) inches in elevation above the level of the patron seating

areas.” KCC § 5.10.120 A(3) provides as follows: “No danc-

ing or adult entertainment by an entertainer shall occur closer

than ten (10) feet to any patron.” App. D at D-26 to D-28.

Petitioners then filed a second action in the district court

arguing that the complete ban on table dancing — in particular,

the ten-foot distance requirement — violates the First Amend-

ment. At the end of discovery, the City moved for summary

judgment.

In opposition, Petitioners presented evidence demonstrat-

ing that the City’s predominate purpose in enacting the

amendments was to undermine the court-approved settlement

and to prevent all adult entertainment businesses. including

Petitioners’, from locating in Kent. In addition to the fact that

the amendments were passed soon after the settlement and in

conjunction with a temporary moratorium on all adult busi-

nesses, Petitioners provided direct evidence of the City’s true

purpose: minutes of the City Council and the City Council's

Planning Committee meetings showing that the Mayor and

City Council members did not want to comply with the

district court’s decision invalidating the zoning ordinance.

The official minutes of the City Council meeting on Decem-

ber 19, 1995, for example, state that “Mayor White . . . said

that . . . he does not personally support adult entertainment

businesses and does not want any in Kent” (emphasis added).

The minutes also reflect that the Council members and

the City Attorney knew (1) that table dancing is the primary

means by which adult nightclubs earn revenue, (2) that a ban

on table dancing would pose an insurmountable economic

obstacle to the opening of an adult nightclub, and (3) that the

amendments to the regulatory ordinance would serve as an

effective alternative to exclusionary zoning so as to bring

about a complete ban on adult entertainment. For example, in

one Planning Committee meeting, the City Attorney stated,

“Since we cannot zone these type of businesses out of the City,

the licensing was looked at that was in place for this type of

: 4

facility” (emphasis added). At his deposition, he then testified

that he knew that the proposed amendments would have an

adverse economic impact on the adult nightclubs. At a Plan-

ning Committee meeting on April 10, 1995, one of the Com-

mittee members stated, “Everybody's talking about this

business license practice Ordinance that [the City Attorney

has] written, and it’s a beaut. And if it holds up, nobody's

going to want to come to this City” (emphasis added). At the

same meeting, the Chairman of the Committee stated: “With

all the regulations we have adopted and stuff, I'm not too

concerned that someone's going to come and try to open

something up. Because we've made it a little bit difficult for

them to make money in the traditional way they make money”

(emphasis added). See generally App. E at 44 28-37.

Petitioners also presented uncontroverted expert evidence

that table dancing is a unique medium of expression distinct

from stage dancing, that it is performed throughout the United

States, and that distance between patron and entertainer ts an

expressive component of the dance. Dr. Judith Hanna, a

Semor Research Scholar at the University of Maryland, and

the author of four books and eighty scholarly articies on the

anthropology of dance, provided a declaration stating that

requiring the dancers to maintain a ten-foot distance “directly

and unmistakably affects the content of the erotic message

sought to be conveyed by the performer.” App. F at 4 23

(emphasis added). Petitioners also presented the declaration

of Dr. Edward I. Donnerstein, chairman of the Communica-

tions Department at the University of California at Santa

Barbara, and the lead social scientist called to give expert

testimony before the Meese Commission on Pornography,

who conducted an original study of the impact of entertainer-

patron separation on audience perception of erotic dance

performance. The study demonstrated that distance between

entertainer and performer constitutes an expressive compo-

nent of the dance. App. G.

Petitioners also presented evidence of their attempt to

open an adult nightclub in Bellevue, Washington, similar to

the one proposed for Kent. Bellevue had adopted an ordinance

requiring entertainers to perform four feet from the nearest

neem

nee

Sr Ted! ore

EAE. ie, et etd MY Ain th

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ee

5

patron. Petitioners attempted to comply with the Bellevue

Ordinance but were forced to close their business because,

without table dancing, the business could nol generate suffi-

cient revenue to cover expenses. Petitioners presented evi-

dence that the impact of the four-foot rule in Bellevue, and a

Similar restriction in the City of Federal Way, Washington,

was to reduce Substantially both the number of entertainers

willing to work in the nightclub and the number Of patrons

willing to attend the performances. Kent's ban on table danc-

ing, together with Petitioners’ experience in Bellevue and the

experience of another club in Federal Way, led them to decide

not to exercise their option to purchase the parcel in Kent. See

App. A at A-23.

The district court held that Petitioners’ submissions

failed to raise a genuine issue of material fact and granted the

City’s Motion for Summary Judgment, finding the Ordinance

to be content-neutral and valid under the intermediate scru-

tiny test. App. B.

A divided panel of the Ninth Circuit affirmed. App. A.

The court of appeals held that the ten-foot rule was content-

neutral because the ordinance’s purpose was to “ameliorate

secondary effects,” id. at A-| 1, and was therefore “justified

without reference to speech,” id. at A-13 to A-14. Applying

the intermediate Scrutiny test, the court held that “the ten-foot

distance requirement is narrowly tailored and leaves open

ample alternative avenues for communication of protected

expression.” Jd. at A-25. Judge Reinhardt dissented, conclud-

ing that Petitioners had raised a genuine issue of material fact

as to whether the regulation was content-neutral by providing

evidence that “stage dancers and table dancers communicate

different: expressive content in their respective messages”

and, therefore, that “proximity itself — the distance, or lack

thereof, between the dancer and the patron — is integral to the

message conveyed by table dancing.” Jd. at A-27 (Reinhardt,

Res dissenting). Petitioners then sought rehearing and rehear-

ing en banc, and both requests were denied. App. C.

SOc t(ts

6

REASONS THE WRIT SHOULD BE GRANTED

This Petition should be granted because the Ninth Cir-

cuit’s opinion conflicts with decisions of this Court and other

courts of appeals, and raises important and unsettled ques-

tions of First Amendment doctrine, both in general and as the

First Amendment relates to sexually explicit, non-obscene

expression.

I. THIS COURT SHOULD GRANT CERTIORARI TO

ADDRESS THE IMPORTANT BUT UNSETTLED

QUESTIONS OF “WHAT IS THE APPROPRIATE

LEVEL OF FIRST AMENDMENT PROTECTION

FOR SEXUALLY EXPLICIT NON-OBSCENE

SPEECH?” AND “WHAT IS THE STANDARD FOR

MEASURING REGULATIONS THAT ABRIDGE

SUCH SPEECH, ASSUMING IT IS ENTITLED TO

LOWER PROTECTION THAN OTHER FORMS OF

EXPRESSION?”

A. The Ninth Circuit Recognized the Law’s Lack of

Clarity on This Question.

The Ninth Circuit recognized, as have many courts in

recent years, that the standard of review applicable to govern-

ment restriction of sexually explicit, non-obscene expression

remains unclear: “The fragmented nature of Supreme Court

opinions dealing with nude dancing in particular and sexually

explicit but non-obscene conduct in general has resulted in a

lack of clear guidance on the level of First Amendment

protection afforded to this type of expression.” App. A at A-5;

see also Laurence Tribe, American Constitutional Law

§ 12-18, at 938 (2d ed. 1988) (“[NJo Court has yet squarely

held that offensive or sexually explicit but non-obscene

speech enjoys less than full first amendment protection.”); cf.

Erwin Chemerinsky, Constitutional Law § 11.3.4.4 (1997)

(referring to sexual speech as “protected, but low value”);

Elena Kagan, Private Speech, Public Purpose: The Role of

Governmental Motive in First Amendment Doctrine, 63 U.

Chi. L. Rev. 413, 473 n.162 (1996) (“[S]Jexually explicit

Ne eS TR Aer ne

ee

7

speech [other than obscenity and child pornography] is enti-

tled to less than a full measure of constitutional protection,

although the precise standard is uncertain.”)

B. The Several Opinions in This Court’s Decision in

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991),

Have Resulted in Confusion in the Lower Courts.

This Court’s 5-4 decision in Barnes v. Glen Theatre, Inc..,

501 U.S. 560 (1991), contains four separate Opinions. Under

the “narrowest grounds” rule for determining the holding of a

case with no majority opinion, see Marks y. United States,

430 U.S. 188, 193 (1977), different lower courts have gleaned

different holdings from Barnes. Other than concluding that

the statute at issue in Barnes is constitutional,2 there is little

else on which courts agree about the case’s holding. As one

court put it, “the Marks rule is less useful where, as [in

Barnes}, no Opinion, however narrowly construed, may be

said to embody a Position that enjoys the support of at least

five Justices who concurred in the judgment.” Triplett Grille,

Inc. v. City of Akron, 40 F.3d 129, 134 (6th Cir. 1994).

Most courts treat Justice Souter’s concurring opinion in

Barnes, in which he upholds Indiana’s public indecency stat-

ute as a valid regulation of secondary effects, as controlling

authority. See, €.g..J3 &B8B Entertainment, Inc. y. City of

Jackson, 152 F.3d 362, 370 (Sth Cir. 1998): Farkas vy. Miller,

151 F.3d 900, 904 (8th Cir. 1998); Triplett Grille, 40 F.3d at

134-35; International Eateries of Am., Inc. v. Broward

County, 941 F.3d 1157, 1160-61 (11th Cir 1991). Some

courts, however, have adopted the Principal opinion authored

by the Chief Justice as controlling. See Nakatomi Invs., Inc. v.

City of Schenectady, 949 F. Supp. 988, 998 (N.D.N.Y. 1997).

At least one court has even found the Barnes decision to be so

fractured that it followed the dissent. See Pap’s A.M. v. City of

2 Indeed, one court has even questioned this. See Pap’s A.M. v. City of

Erie, 719 A.2d 273, 278-79 (Pa. 1998), cert. granted, 119 S. Ct. 1753 (U.S.

May 17, 1999) (No. 98-1161).

8

Erie, 719 A.2d 273, 279-80 (Pa. 1998), cert. granted, 119

S. Ct. 1753 (U.S. May 17, 1999) (No. 98-1161).

lt appears that a number of courts have followed Justice

Souter’s opinion in part because they have misread Justice

Scalia’s concurrence in Barnes. Courts have assumed that the

fact that Justice Scalia was unwilling to subject Indiana's

public indecency statute to any First Amendment scrutiny at

all means that he believed that nude dancing was not entitled

to First Amendment protection. See Farkas, 151 F.3d at 904

(referring to the “major premise” of Justice Scalia’s opinion

as being “that nude dancing is not an expressive activity that

warrants constitutional protection”); Triplett Grille, 40 F.3d at

133 (“Justice Scalia . . . concluded that nude dancing ts not

inherently expressive activity entitled to First Amendment

protection.”). This is a misreading of his opinion. See Schultz

v. City of Cumberland, 26 F. Supp. 2d 1128, 1140-41 (W.D.

Wis. 1998). Justice Scalia’s opinion in Barnes explicitly left

open the question whether nude dancing was sufficiently

expressive to warrant First Amendment protection. See

Barnes, 501 U.S. at 577 n.4 (Scalia, J., concurring in the

judgment). Moreover, his opinion clearly rested solely on the

fact that the law in question was a law of general appli-

cability, not one aimed at expression. Indeed, he made emi-

nently clear that “[w]Jhere the government prohibits conduct

precisely because of its communicative attributes,” the Court

should hold, and consistently has held, the regulation to be

unconstitutional.* /d. at 577. These quotations are in keeping

with his view that even the most objectionable expressive

conduct is entitled to First Amendment protection. See Texas

v. Johnson, 491 U.S. 397 (1989) (Justice Scalia joining major-

ity). Indeed, the fact that Justice Scalia concurred in the

* In fact, he even stated that a law of general applicability could be

subjected to First Amendment scrutiny if the facts were to warrant: “Were

it the case that Indiana in practice targeted only expressive nudity, while

turning a blind eye to nude beaches and unclothed purveyors of hot dogs

and machine tools . . . , it might be said that what posed as a regulation of

conduct in general was in reality a regulation of only communicative

conduct.” /d. at 574.

a

ae ee a eee

9

majority opinion in Reno y. ACLU, 521 U.S. 844 (1997),

Suggests that he is not inclined to characterize non-obscene

speech as “low-value” simply because it is sexually explicit.

See also FW/PBS, Inc. y. City of Dallas, 493 U.S. 215, 253

(1990) (Scalia, J., concurring in part and dissenting in part)

(“It is necessary, to be sure of protecting valuable speech, that

we compel all communities to tolerate individual works that

have only marginal communicative content beyond raw sexual

appeal.”). But see id. (expressing view that adult business

licensing scheme not Subject to First Amendment scrutiny).

In any event, even assuming Justice Souter’s concurrence

in Barnes to be law under Marks, such a view still leaves

uncertain the level of protection afforded sexually explicit

speech where, as here, the law is directly aimed at a particular

mode of expression and is thus content-based. In these cir-

cumstances, Justice Souter has consistently adhered to the

view that such restrictions be subjected to the strictest scru-

tiny, even where sexually explicit speech is at issue. See

National Endowment for the Arts y. Finley, 524 U.S. 569, pene

118 S. Ct. 2168, 2185-96 (1998) (Souter, J., dissenting); Reno

v. ACLU, 521 U.S. 844 (1997) (Justice Souter joining major-

ity). Where a regulation, such as the ten-foot distance rule in

question here, is directly aimed at a particular mode of

expression, Barnes is less instructive on this fundamental

preliminary question. No matter how one reads Barnes, there-

fore, the law regarding the level of Protection to be afforded

sexually explicit non-obscene expression remains unclear.

C. The Confusion Occasioned by Barnes Has Caused

Courts to Ignore Other Decisions of This Court.

As a result of the lack of clear guidance on the level of

protection afforded such speech, some courts have concluded

that laws aimed at adult entertainment are automatically con-

sidered content-neutral even if content-based on their face

and in their effects. Most courts have relied for this proposi-

tion on Justice Souter’s opinion in Barnes and this Court's

decision in City of Renton v. Playtime Theatres, Inc., 475 U.S.

41 (1986). Yet, Renton requires courts to make findings of

10

secondary effects before concluding that a regulation aimed

specifically at adult entertainment is “content-neutral.” More-

over, this Court's more recent decision in Reno v. ACLU, 521

U.S. 844, ___ , 117 S. Ct. 2329, 2342-43 (1997), makes clear

that restrictions on sexually explicit non-obscene speech can

be content-based. Yet, because of the confusion occa ioned by

the fractured nature of Barnes, some courts have in effect

read Renton to mean that regulations on the adult entertain-

ment business are automatically “content-neutral.” See, e.g.,

University Books & Video, Inc. v. Metropolitan Dade County,

33 F. Supp. 2d 1364, 1369 (S.D. Fla. 1999) (citing Renton for

proposition that zoning regulations that distinguish between

uses that are sexually explicit and those that are not are

content-neutral); Hamilton Amusement Ctr. v. Verniero, 716

A.2d 1137, 1143 (N.J. 1998) (concluding that statute restrict-

ing advertising by sexually oriented businesses was content-

neutral without any evidence of secondary effects)*, petition

for cert. filed, 67 U.S.L.W. 3459 (Jan. 5, 1999) (No.

98-1089); see also Richland Bookmart, Inc. v. Nichols, 137

F.3d 435, 440 (6th Cir. 1998) (listing cases); cf. id. (“a kind of

legal fiction has been created that calls regulation of such

literature ‘content neutral’ when what is meant is only that the

regulation is constitutionally valid”); Robert Post, Recuperat-

ing First Amendment Doctrine, 47 Stan. L. Rev. 1249,

1265-67 (1995).

In contrast, other courts have held that Renton does not

eliminate a court’s duty to inquire into whether the govern-

ment has made the findings necessary to establish that its law

really was aimed at secondary effects: Phillips v. Borough of

Keyport, 107 F.3d 164, 175 (3d Cir. 1997) (en banc); MD Il

Entertainment, Inc. v. City of Dallas, 28 F.3d 492, 494 (Sth

Cir. 1994); Faraone v. City of East Providence, 935 F. Supp.

82, 88 (D.R.I. 1996); Georgia v. Cafe Erotica, Inc., 500

4 See id. at 1152-53 (Stein, J., dissenting) (noting the majority's

“wink[ing] at the complete lack of legislative findings supporting” the

ordinance); id. at 1157 (Stein, J., dissenting).

S.E.2d 574, 575-76 (Ga. 1998); Goldrush II y. City of Mar-

ietta, 482 S.E.2d 347, 355 n.9 (Ga. 1997); Pap’s A.M. y. City

of Erie, 719 A.2d 273, 279-80 (Pa. 1998); Connor v. Town of

Hilton Head Is., 442 §..24 608, 609-10 (S.C. 1994).

In this case, the Ninth Circuit implied that sexually

explicit live entertainment is “low value” speech and thus

entitled to less protection, see App. A at A-26 (Reinhardt, J.,

dissenting), but left open the question of which Barnes Opin-

ion is controlling. It is clear from the Opinion, however, that

the fact that the message involved erotic expression affected

the court's analysis.

Even if the Ninth Circuit panel is correct that non-

obscene, sexually explicit speech is entitled to a lower level

of protection than other expression, this Court should grant

certiorari to decide what standards apply. For example, is the

standard for judging regulations that abridge sexually ori-

ented expression the one announced in United States y.

O'Brien, 391 U.S. 367, 377 (1968), or that stated in Renton?

Are the O'Brien and Renton Standards the same, or do they

differ in the amount of protection they provide? Finally, is the

standard for sexually oriented non-obscene expression identi-

cal to or different from the one for regulations that abridge

commercial speech? See Board of Trustees v. Fox, 492 U.S

469, 477 (1989) (“commercial speech” test is “substantially

similar” to test for time, place, and manner restrictions). The

lack of uniformity has caused the lower courts to apply a host

of different standards and has made it difficult if not impossi-

ble for local governments and adult entertainment businesses

to determine the extent of First Amendment protection.

Finally, this unsettled question is important as evidenced

not only by the number of different courts that have addressed

it, but also by the fact that this Court has already granted

certiorari to decide a related question in Pap's A.M. vy. City of

Erie, 719 A.2d 273 (Pa. 1998), cert. granted, 119 §. Ct. 1753

(U.S. May 17, 1999) (No. 98-] 161). See Robert L. Stern et

al., Supreme Court Practice § 4.16. at 192-93 (7th ed. 1993).

ree C—C te

ee

1?

~

il. THIS COURT SHOULD GRANT CERTIORARI TO

ADDRESS THE IMPORTANT AND UNSETTLED

QUESTION OF WHAT THE EVIDENTIARY STAN-

DARDS ARE FOR DETERMINING THE GOVERN.

MENT’S TRUE “PREDOMINATE PURPOSE”

WHEN DECIDING WHETHER A REGULATION IS

CONTENT-BASED OR CONTENT-NEUTRAL

UNDER THE FIRST AMENDMENTS

A. The Ninth Circuit Recognized the Law’s Lack of

Clarity on This Question.

Once again, on an important and determinative question

of federal constitutional law, the Ninth Circuit recognized that

* This question necessarily encompasses two analytically distinct, but

related, questions: (1) how much evidence of secondary effects does the

government need to produce to meet its initial burden to justify its

regulation of speech as content-neutral, and (2) assuming the government

has submitted sufficient evidence to meet its initial burden, how much

evidence must the plaintiff introduce to raise a genuine issue of material

fact as to the government's true predominate purpose. Although Petitioners

focus on the second of these two questions, this case implicates the first as

well. The federal courts of appeals and the state courts of last resort have

used different standards in determining whether the government has

introduced enough evidence to meet its initial burden to show its

predominant purpose is non-speech related. Compare, e.g., Town of Islip v.

Caviglia, 540 N.E.2d 215, 218-20 (N.Y. 1989) (secondary effects shown by

study even though no direct proof), and Hamilton Amusement Ctr. v.

Verniero, 716 A.2d 1137, 1143 (NJ. 1998) (concluding that statute

restricting advertising by sexually oriented businesses was content-neutral

without any evidence of secondary effects), petition for cert. filed, 67

U.S.L.W. 3459 (U.S. Jan. 5, 1999) (No. 98-1089), with, e.g., T & D Video,

Inc. v. City of Revere, 670 N.E.2d 162, 165-66 (Mass. 1996) (evidence

relevant only if actually considered by legislators in enacting the

ordinance; post hoc rationalizations during litigation not permitted), and J '

& B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 374 (Sth Cir.

1998) (language in preamble along with studies from the passage of a

previous ordinance three years carlicr insufficient to meet government

burden).

ee es

13

it could have benefited from this Court's guidance: “The case

law has not clarified when secondary effects warrant restriction

of speech and how much proof there must be of these effects.

Precedent provides no Standards for determining when an illicit

but inconsequential ‘motivating factor’ might develop into an

illicit and controlling ‘predominant Purpose.’ ” App. A at A-10

(citing Erwin Chemerinsky, Constitutional Law § 11.3.4.4, at

840 (1997)): see also Town of Islip v. Caviglia, 540 N.E.2d

215, 219 n.2 (N.Y. 1989) ‘noting that “there is a constitu-

tionally significant distinction between an improper motivating

factor and an unconstitutional predominant Purpose” without

explaining how one distinguishes between the two).

B. This Court’s Jurisprudence Leaves the Answer to

This Question Unsettled.¢

It is considered black-letter law that “this Court will not

Strike down an otherwise constitutional statute on the basis of

The Fifth Circuit's unanimous opinion in J & RB Entertainment

Provides a perfect example of a direct conflict with the divided Ninth

Circuit decision below, In J & B Entertainment, the Fifth Circuit addressed

the constitutionality of a 1994 ordinance banning public nudity under the

“secondary effects” approach announced by Justice Souter in Barnes. In so

doing, the court refused to accept as relevant a study done by the city prior

to a 1991 zoning ordinance even though there had been no change in the

make-up of the City Council in the intervening period Here, in contrast,

not only did the Ninth Circuit consider a study to be relevant when that

Study contained no evidence of a link between the 10-foot rule and the

secondary effects, but it also ignored the fact that the Study on which the

City of Kent purportedly relied was conducted in 1982, prior to the

promulgation of an earlier regulatory scheme and 13 years before the

passage of the challenged legislation.

® It should be made clear that the facts Petitioners introduced in

Opposition to the summary judgment motion constituted not only evidence

of the intent of individual legislators based on what they said, but also

objective facts Surrounding the Passage of the Ordinance and its actual

effect. Thus, the open question here is “when do objective indicators that

eee ————__

14

an alleged illicit legislative motive.” United States v. O'Brien,

391 U.S. 367, 383 (1968). The clear import of O'Brien is that

with respect to the First Amendment's Free Speech Clause the

“purpose of . . . legislation [is] irrelevant.” /d. at 385. This

general principle, however, is open to much fine-tuning. As

put by one court, “Despite the resoluteness with which this

‘familiar principal of constitutional law’ is typically invoked,

courts remain unclear in the strict application of the principle,

particularly in the context of First Amendment cases.” Piece

Meal Ltd. v. Village of Bellwood, No. 90 C 7131, 1991 WL

211292, at *7-8 (N.D. Ill. Oct. 10, 1991) (quoting O’Brien,

391 U.S. at 383).

The confusion has become more pronounced in recent

years because City of Renton v. Playtime Theatres, Inc., 475

U.S. 41 (1986), necessarily modified the general rule to some

extent by permitting content-neutral analysis of an ordinance

that on its face “treat{ed] theaters that specialize in [one type

of speech] differently from other kinds of theaters,” id. at 47,

as long as the law was “justified without reference to the

content of the regulated speech,” id. at 48 (citation and

internal quotations omitted) (emphasis in Renton). See also

Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (“The

principal inquiry in determining content neutrality . . . is

whether the government has adopted a regulation of speech

because of disagreement with the message it conveys. .. . The

government’s purpose is controlling.”). In determining

whether a regulation is content-neutral or content-based,

Renton and Ward thus ask courts to inquire as to the govern-

ment’s “predominate intent.”’ Renton, 475 U.S. at 47. There

suggest that the government's true purpose is different from the purpose it

articulated, combined with evidence that legislators subjectively sought a

different purpose, give rise to a factual dispute about the government's true

purpose?”

7 For purposes of the present Petition, Petitioners make no distinction

between “purpose,” “motive,” and “intent.” See Richard H. Fallon, Jr., The

Supreme Court, 1996 Term — Forward: Implementing the Constitution, 111

Harv. L. Rev. 56, 71 (1997) (“In ... the simplest and most familiar usage,

|

15

can thus be no question that. under Renton, government pur-

Pose is the central inquiry in determining whether a law is

content-based or content-neutral. See Town of Islip v. Cav-

iglia, 540 N.E.2d 215, 219 n.2 (N.Y. 1989) (holding that

“Renton requires an examination of a municipality's motive in

enacting the ordinance before examining whether the ordi-

nance is .. . valid”); Ashutosh Bhagwat, Purpose Scrutiny in

Constitutional Analysis, 85 Cal. L. Rev. 297, 316 (1997)

(“The Court’s recent free speech jurisprudence .. . contains

an increased . . . attention to government purpose

- especially . . . in the Court's ‘content’ jurisprudence.”).

This raises the question of how to square Renton’s insis-

tence that the central focus be the government’s predominate

Purpose with O'’Brien’s categorical statement that the “pur-

pose of .. . legislation [is] irrelevant.” Most courts, including

the Ninth Circuit below, assume that in spite of O'Brien’s

language, Renton requires cwurts to determine the legisla-

ture’s predominant intent. In other words, the broader princi-

ple embodied in O’Brien, that the Purpose of legislation is

irrelevant, is “hyperbole.” See Grossbaum y. Indianapolis-

Marion County Bldg. Auth., 100 F.3d 1287, 1292 (7th Cir.

1996).

In the inquiry about the government's predominant

intent, one thing is clear: When First Amendment free speech

this Court has used the terms interchangeably in First Amendment

jurisprudence and elsewhere and citing U'Brien as one example of this

Court treating the terms “motive” and “purpose” as synonymous). This, of

course, does not preclude distinctions between these words in other

16

rights are at stake,® courts must look beyond the government’s

articulated justification when determining whether a law ts

“content-neutral.” See City Council v. Taxpayers for Vincent,

466 U.S. 789, 804 (1984) (asking whether a law “was

designed to suppress certain ideas that the City finds distaste-

ful”) (emphasis added); Minneapolis Star & Tribune Co. v.

Minnesota Comm'r of Revenue, 460 U.S. 575, 579-80 (1983)

(interpreting Grosjean v. American Press Co., 297 U.S. 233

(1936), as permitting inquiry into motive of legislature); Met-

romedia, Inc. v. City of San Diego, 453 U.S. 490, 510 (1981)

(plurality opinion) (“Such esthetic judgments are necessarily

subjective, defying objective evaluation, and for that reason

must be carefully scrutinized to determine if they are only a

public rationalization of an impermissible purpose.”)

(emphasis added); see also News Am. Publ’g., Inc. v. FCC,

844 F.2d 800, 809-10 (D.C. Cir. 1984) (citing Minneapolis

Star & Tribune for the proposition that “[t}he Supreme Court

has recently hinted at a readiness to infer censorial intent

8 Determining the government’s purpose in passing legislation is

important not only in free speech cases, but also in other contexts. See

Miller v. Johnson, 515 U.S. 900, 916 (1995) (voting district violates Equal

Protection Clause if race is “the predominant factor motivating the

legislature's decision to place a significant number of voters within or

without” the district); Edwards v. Aguillard, 482 U.S. 578, 585 (1987)

(Establishment Clause violation where legislature's “actual purpose” is to

promote religion); Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 540-42 (1993) (opinion of Kennedy, J., joined by

Stevens, J.) (inquiry into subjective intent of legislators permitted in

Establishment Clause challenge); United States v. Lovett, 328 U.S. 303,

313-14 (1946) (law violates Bill of Attainder Clause if its “purpose” was to

punish particular individuals).

Though the general question may be the same, different concerns may

be implicated by different constitutional provisions. While Petitioners

restrict their analysis in this Petition to challenges to government

regulations pursuant to the Free Speech Clause, Petitioners do not thereby

mean to imply that jurisprudence on the question of government purpose in

other contexts ts irrelevant.

17

from legislative history and to invalidate laws so motivated”);

Discotheque, Inc. vy. City Council of Augusta, 449 S§_E.2d 608,

609 (Ga. 1994) (referring to ordinance’s preamble as “merely

self-serving conclusory hearsay” insufficient to Sustain the

government’s burden). This principle applies even if the stat-

ule is Content-neutral on its face. See Turner Broad. Sys. v.

FCC, 512 U.S. 622, 645-46 (1994) (“[E]ven a regulation

neutral on its face may be content based if its manifest

purpose is to regulate speech because of the message it

conveys.) (citing United States y. Eichman, 496 U.S. 310,

315 (1990)).

C. The Lower Federal Courts and State Courts of

Last Resort Have Articulated Different Answers

to This Question.

Lower courts have answered this question in different

ways because this Court has never articulated a standard by

which to judge how to determine the government's predomi-

nate purpose when a statute’s challenger raises substantial

evidence suggesting that the government’s alleged predomi-

nant purpose is not its true predominant purpose.

The Fourth Circuit has read O’Brien in the way most

deferential to the government, deferring to the government as

long as a content-neutral governmental interest can be “iden-

tifi[ed].” See Hart Bookstores vy. Edmiston, 612 F.2d 821. 829

(4th Cir. 1979) (“The relevant question under O'Brien is not

whether the perceived ‘legislative motive’ for legislation is

unrelated to the suppression of free expression, but whether

an identifiable ‘governmental interest’ is SO unrelated.”): see

also Alexander M. Bickel, The Least Dangerous Branch 209

(1962) (“[A] determination of ‘purpose’ . . . is either the name

given to the Court’s objective assessment of the effect of a

statute or a conclusionary term denoting the Court’s indepen-

dent judgment of the constitutionally allowable end that the

legislature could have had in view.”). The Sixth, Seventh. and

Eighth Circuits all permit a more contextual inquiry into

governmental purpose than the Fourth, but each of these three

18

courts arguably has internal conflicts on this question. Com-

pare Cleveland Area Bd. of Realtors v. City of Euclid, 88 F.3d

382, 386-88 (6th Cir. 1996) (since content-neutral rationale

was “voiced in the record and appears in the legislation

itself,” law is content-neutral), with DLS, Inc. v. City of

Chattanooga, 107 F.3d 403, 413 (6th Cir. 1997) (“if the

ordinance was intended to destroy the market for adult caba-

rets, it might run afoul of the First Amendment”); compare

Fraternal Order of Police Hobart Lodge #121, Inc. v. Hobart,

864 F.2d 551, 554 (7th Cir. 1988) (Posner, J.) (noting that

| O’Brien principle “survives undiminished in cases . . . where

the statute or ordinance does not single out particular individ-

uals or groups for benefits or burdens and is not challenged as

discriminating on invidious grounds such as race, religion,

and sex”), with Vandenplas v. City of Muskego, 753 F.2d 555,

560 (7th Cir. 1985) (“In a case where facts implicating the

First Amendment were properly alleged, the motives of the

members of the town council . . . would presumably be

relevant.”);? compare Ambassador Books & Video, Inc. v. City

of Little Rock, 20 F.3d 858, 861, 863-64 (8th Cir. 1994)

(zoning restrictions on adult businesses upheld despite evi-

dence of improper motive and despite the fact that trial judge

found “that the city’s predominant intent was to hinder or

alleviate the operation of . . . adult businesses because of their

content”), with Avalon Cinema Corp. v. Thompson, 667 F.2d

9 Though neither of these Seventh Circuit cases involved a

determination of whether a law is content-neutral, both involved

allegations that a statute violated the Free Speech Clause because of

improper motives on the part of the legislature. In directly addressing the

question whether a law is content-neutral, district courts in the Seventh

Circuit have rendered arguably conflicting decisions. Compare Piece Meal

Ltd. v. Village of Bellwood, No. 90 C 7131, 1991 WL 211292, at *8 (N.D.

Ili. Oct. 10, 1991) (denying government motion for summary judgment on

constitutionality of zoning ordinance partly on basis of evidence that city

officials campaigned for two years to prevent plaintiffs from opening adult

bookstore), with Suburban Video, Inc. v. City of Delafield, 694 F. Supp.

585, 589 (E.D. Wis. 1988) (no inquiry into city council members’ real

purpose as long as ordinance stated a valid purpose on its face).

ee ,

19

659, 662-63 (8th Cir. 1981) (invalidating adult business zon-

ing ordinance partly because it was Passed with the goal of

preventing the opening of an adult movie theater and book-

store).

Though Petitioners have not found any Second Circuit

cases directly addressing the issue, trial courts in the Second

Circuit have interpreted O'Brien as permitting “objective evi-

dence of intent.” See Goldberg v. Whitman, 743 F. Supp. 943,

954 (D. Conn. 1990): see also Somers Realty Corp. v. Hard-

ing, 886 F. Supp. 386, 390-92 (S.D.N.Y. 1995) (while “not

go[ing] so far as to hold that no plaintiff could ever establish

a First Amendment violation by demonstrating illicit legisla-

tive intent,” finding insufficient evidence in that case).

Though the Fifth Circuit appears likewise not to have

addressed this issue directly, a federal district court in Texas

has held a regulation of adult businesses to be content-based

on the basis of improper motives, Striking the law down as a

result. See N.W. Enterprises, Inc. y. City of Houston, 27

F. Supp. 2d 754, 809-12 (S.D. Tex. 1998) (invalidating

requirement that distance between adult businesses and pro-

tected uses, such as churches and schools, be at least 1500

feet partly on basis of evidence that city council members

made statements during council meetings expressing their

desire to close down sexually oriented businesses and that

they knew that the distance requirement would effectively

accomplish that goal). This decision obviously directly con-

flicts with those courts that preclude all inquiry into legisla-

tive motive or those that limit the inquiry to “objective

evidence of intent.”

State courts have likewise been faced with this question

and have answered it in a variety of ways. See Goldrush I] v.

City of Marietta, 482 S.E.2d 347, 356 (Ga. 1997) (evidence

that mayor and several council members sought to eliminate

nude dancing establishments altogether was insufficient as a

matter of law to establish improper intent); Town of Islip v.

Caviglia, 540 N.E.2d 215, 219 n.2 (N.Y. 1989) (holding that

“Renton requires an examination of a municipality’s motive in

enacting the ordinance before €xamining whether the ordi-

nance is . . . valid”); Antonello vy. City of San Diego, 93 Cal.

20

Rptr. 820, 822 (Cal. Ct. App. 1971) (“Where the purpose of a

Statute is relevant to a determination of its constitutional

validity a court, to ascertain such purpose, may examine its

immediate objective and ultimate effect as well as events

leading up to its passage.’’).

With respect to the case below, the Ninth Circuit relied

on an earlier Ninth Circuit decision, City of Las Vegas v.

Foley, 747 F.2d 1294 (9th Cir. 1984), in determining the

standards to be applied. In Foley, the Ninth Circuit stated,

“The relevant governmental interest is determined by objec-

tive indicators as taken from the face of the statute, the effect

of the statute, comparison to prior law, facts surrounding

enactment of the statute, the stated purpose, and the record of

proceedings.” /d. at 1297. In the case below, however, the

Ninth Circuit interpreted Foley as permitting inquiry only as

to whether the procedural handling of the Ordinance’s pro-

mulgation was unusual. It then concluded that, because “the

record does not indicate unusual procedural maneuvering on

the part of the . . . City governing bodies[,] . . . [o]bjective

indicators of illicit purpose are not present here.” See App. A

at A-12.

In so concluding, however, the court effectively ignored

the many objective indicators plaintiffs introduced to demon-

strate that the government's alleged purpose was in fact a

sham: (1) the fact that the City’s consideration of the regula-

tory amendments resulting in the ten-foot rule began imme-

diately after the district court’s decision that the City’s zoning

ordinance was unconstitutional; (2) the fact that the City

simultaneously imposed a complete moratorium on all other

adult business uses; (3) evidence that City officials sought

ways to circumvent the district court’s decision; and (4)

evidence that City officials knew that table dancing was the

primary means by which adult nightclubs earn revenue and

that a complete ban would pose an insurmountable economic

obstacle to the opening of an adult nightclub.

Rather than grapple with whether this evidence rises to

the level necessary to undermine the government’s alleged

21

ae

predominant purpose, the Court below concluded that because

“Kent's ordinance was based on a comprehensive study of

adult entertainment businesses and their secondary impacts,”

and because “[t}he record also includes affidavits . . . docum-

enting the connection between table dancing and illegal sex-

ual activity,” Petitioners’ evidence was irrelevant. In effect,

the Ninth Circuit read Renton to mean that as long as the

government can point to a study about secondary effects and a

supporting affidavit — that is, as long as it can come up with

some evidence of a content-neutral justification — a challenger

can never rebut the government's claim, no matter how much

evidence the challenger provides. While Petitioners recognize

the lack of clarity in the law. the Ninth Circuit's decision in

the case below is manifestly mistaken. By insulating legisla-

tures completely when they simply point to minimal evidence,

this holding will threaten the basic principles embodied in

this Court's First Amendment jurisprudence, that a govern-

ment may not adopt a regulation of speech “because of dis-

agreement with the message it conveys.”

lll. THIS COURT SHOULD GRANT CERTIORARI TO

RESOLVE THE UNSETTLED QUESTION OF THE

MEANING OF THE INTERMEDIATE SCRUTINY

TEST’S “NARROW TAILORING” REQUIRE-

MENT IN THE CONTEXT OF REGULATIONS OF

SEXUALLY EXPLICIT NON-OBSCENE SPEECH

Assuming the City’s ten-foot rule Should be subjected to

the intermediate scrutiny test as a content-neutral time, place,

and manner regulation, the City had the burden to show that

the rule was “narrowly tailored to serve the government's

legitimate, content-neutral interests.” Ward v. Rock Against

Racism, 491 U.S. 781, 798 (1989). “Under intermediate scru-

tiny, the Government may employ the means of its choosing

so long as the... regulation promotes a substantial govern-

mental interest that would be achieved less effectively absent

the regulation, and does not burden substantially more speech

than is necessary to further that interest.” Turner Broad. Sys.

22

v. FCC, 520 U.S. 180, 213-14 (1997).!° While laws subject to

intermediate scrutiny “are not invalid simply because there is

some imaginable alternative that might be less burdensome on

speech,” id. at 217 (citation and internal quotation marks

omitted), the fact that the words “narrow tailoring” are used

necessarily implies that courts must consider less speech-

restrictive alternatives when determining whether the test is

satisfied. See id. at 218-23 (considering less restrictive alter-

natives). Indeed, the test as articulated in O’Brien makes it

perfectly clear that less speech-restrictive alternatives are

relevant. See O’Brien, 391 U.S. at 377 (government must

show “the incidental restriction on alleged First Amendment

freedoms is no greater than is essential to the furtherance of

that interest”) (emphasis added).

This Court’s “commercial speech” cases have a similar

“narrow tailoring” test, placing on the government the “bur-

den to establish a ‘reasonable fit’ between its legitimate

interest . . . [and] the means chosen to serve those interests.”

City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410,

416 (1993); see also Florida Bar v. Went-for-It, Inc., 515 U.S.

618, 632 (1995). The “regulation must indicate a ‘carefu[l]

calculat[ion of] the costs and benefits associated with the

burden on speech imposed by its prohibition.’ The availability

of less burdensome alternatives to reach the stated goal sig-

nals that the fit between the legislature’s ends and the means

chosen to accomplish those ends may be too imprecise to

withstand First Amendment scrutiny.” 44 Liquormart, Inc. v.

Rhode Island, 517 U.S. 484, 529 (1996) (O’Connor, J., con-

curring in the judgment) (quoting Discovery Network, 507

U.S. at 417) (alteration in 44 Liquormart); see id. at 524

10 Because of the way in which this principle is stated in Ward, courts

often ignore the second half of the test and consider a law to be “narrowly

tailored” when the law merely “promotes a substantial government interest

that would be achieved less effectively absent the ordinance.” DCR, Inc. v.

Pierce County, 964 P.2d 380, 391 (Wash. App. 1998) (citing Ward, 491

U.S. at 799). Of course, that part of the “narrow tailoring” prong is little

more than a reformulation of the “furthering the government interest”

prong.

|

23

(Thomas, J., concurring in the judgment) (describing the

principal and concurring opinions, which together were joined

by seven Justices, as “commit[ing] courts to Striking down

restrictions whenever a direct regulation (i.e. a regulation

involving no restriction on speech regarding lawful activity at

all) would be an equally effective method” of achieving the

government’s goal).

The question thus arises as to whether the standards

articulated in Discovery Network and 44 Liquormart apply

when the intermediate scrutiny test is used in the context of

non-obscene, sexually explicit speech. At least one court has

held that the “reasonable fit” commercial speech standard

applies with equal force to the intermediate scrutiny test. See

} Chesapeake and Potomac Tel. Co. y. United States, 42 F.3d

181, 199 n.29 (4th Cir. 1994), vacated on other grounds, 516

; U.S. 415 (1996). Given that “commercial speech receives less

First Amendment Protection than does non-commercial

speech,” id. (citing Board of Trustees v. Fox, 492 U.S. 469,

3 478 (1989)), the “narrow tailoring” requirement of commer-

‘ cial speech cases should Properly apply. Though this Court

i has explicitly stated that “the application of the [commercial

' speech] test [is] ‘substantially similar’ to the application of

d the test for validity of time, place, and manner restrictions

| upon protected speech,” Board of Trustees y. Fox, 492 U.S.

; 469, 477 (1989) (quoting San Francisco Arts & Athletics, Inc.

v. United States Olympic Comm., 483 U.S. 522, 537 n.16

; (1987)), it has never applied the “reasonable fit” test to a

“content-neutral” regulation under the O’Brien test. Lower

j courts are thus unsure about the standards to apply and, in the

case of sexually explicit speech, have universally ignored the

Discovery Network/44 Liquormart language.

In the case below, the Ninth Circuit refused to consider

seriously the most obvious “less burdensome alternative[ ] to

reach the [government’s] stated goal,” 44 Liguormart, Inc.,

517 U.S. at 529 (1996) (O’Connor, J., concurring in the

judgment), a “no touch” rule. Such a rule would prohibit

physical contact between the dancers and patrons and would

thus be a “direct regulation,” 44 Liquormart, 517 U.S. at 524

(Thomas, J., concurring), for achieving the City’s goal. See

So Cae “hee dt:

24

also J.L. Spoons, Inc. v. City of Brunswick, ___ F. Supp. 2d

__, __, No. 1:99CV0477, 1999 WL 322999, at *9-10 (N.D.

Ohio May 20, 1999). Indeed, the way in which the Ninth

Circuit casually dismissed Petitioners’ argument is instruc-

tive, as it provides further evidence of the City’s true goal: to

prevent communication. The “no touch” rule, the Ninth Cir-

cuit concluded, was not a reasonable alternative to a complete

ban on table dancing because it “would permit verbal commu-

nication between dancers and patrons, thereby failing to

curtail propositions for drugs or sex.” App. A at A-17

(emphasis added). While certainly a government can, and

many do, prohibit criminal solicitation, see, e.g., Wash. Rev.

Code § 9A.28.030 (1998), requiring persons who wish to

converse with each other to remain ten feet apart because they

might engage in solicitation raises serious First Amendment

overbreadth problems independent of the questions this Peti-

tion raises as to the Ordinance’s complete ban on table danc-

ing.

IV. THIS COURT SHOULD GRANT CERTIORARI

BECAUSE THE NINTH CIRCUIT’S AFFIRMANCE

OF THE DISTRICT COURT’S GRANT OF SUM-

MARY JUDGMENT IN THE FACE OF UNCON-

TROVERTED EVIDENCE THAT THE

REGULATION FORECLOSED AN ENTIRE

UNIQUE MEDIUM OF EXPRESSION, AS WELL

AS SUBSTANTIAL EVIDENCE THAT THE PRE-

DOMINATE PURPOSE OF THE REGULATION

WAS THE SUPPRESSION OF SPEECH, CON-

FLICTS WITH DECISIONS OF THIS COURT

It is settled law that dance is protected First Amendment

activity.'' So too are nude and semi-nude dancing. See Barnes

v. Glen Theatre, Inc., 501 U.S. 560 (1991). Presumably,

'! Some forms of dance, however, lack the necessary communicative

attributes to merit First Amendment protection. See City of Dallas v.

Stanglin, 490 U.S. 19, 24-25 (1989) (social dancing not “expressive

association” protected by the First Amendment).

PR A TO BN BE i

a a

25

ballet, tap, jazz, and modern dance would likewise each be

entitled to First Amendment protection, such that a law com-

pletely banning, for example, tap dancing while leaving other

forms of dance unaffected would be treated as content-based.

Similarly, a law that, rather than explicitly prohibiting tap

dancing, instead banned dancing with shoes that have metal

soles could also be treated as content-based, because such a

law would have the effect of imposing a complete ban on tap

while leaving ballet, jazz, and most other types of dance

unaffected. !2

The question Petitioners sought answered below was

whether table dancing likewise merits separate protection,

just as do ballet and tap. The government introduced no

evidence on the question. Petitioners, in contrast, introduced

two expert affidavits, as well as a detailed scientific study.

This uncontroverted evidence established that table dancing is

in fact a unique medium of expression, distinct from stage

dancing. According to Dr. Hanna’s declaration, “the table

dancer focuses on an individual audience member . . . to send

a personal message not manifestly intended for the audience

as a whole.” App. F. at ¥ 16 (emphasis in original). Such a

message makes the individual customer feel “special” and

“important.” /d. In contrast, “[s]tage dances .. . are dances

performed on stage for the audience as a whole.” /d. at q 18.

The message conveyed is one of “coldness and impersonality”

because “[o]n-stage the dancer is viewed on a pedestal and

[is] inaccessible.” /d.

'2 Naturally, it may be that the government's interest in the law

underlying a complete ban on table dancing is different from its interest in

a law underlying a complete ban on tap dancing. The relevance of the

analogy Petitioners make nonetheless remains valid: a restriction on a

“manner” of dance, such as dancing with metal-soled shoes or dancing

within ten feet of one’s audience can in effect work a complete ban on a

type of dance. If table dancing is a unique form of expression, as

presumably tap is, a complete ban on table dancing effected by a seemingly

neutral statute must be treated just as would a complete ban on tap effected

by a seemingly neutral statute.

26

If Petitioners are correct, a complete ban on table danc-

ing would be content-based. As the dissenting judge below

pointed out, “To the extent that a reasonable trier of fact

might conclude that table dancing and stage dancing are

qualitatively distinct forms of expression, the ordinance is

itself facially content-based.” App. A at A-29 (Reinhardt, J.,

dissenting). Of course, as noted above, see supra Part II, there

was also a genuine issue of material fact as to the City’s

predominate purpose, an issue that should have precluded a

grant of summary judgment to the City on the issue of

whether the regulation was content-neutral.

Moreover, even if the law were treated as content-neu-

tral, the ten-foot rule would fail the intermediate scrutiny test

because a law that completely bans a unique medium of

expression fails, as a matter of simple logic, to leave open

adequate alternative avenues for that protected expression.

See City of Ladue v. Gilleo, 512 U.S. 43, 55 (1994) (striking

down ban on residential signs because there was no adequate

substitute and listing cases in which this Court has invalidated

ordinances that completely “foreclose an entire medium of

expression”: Lovell v. City of Griffin, 303 U.S. 444, 451-52

(1938) (“distribution of pamphlets”); Jamison v. Texas, 318

U.S. 413, 416 (1943) (“handbills on the public streets”);

Martin v. City of Struthers, 319 U.S. 141, 145-49 (1943)

(“door-to-door distribution of literature”); Schneider v. State

(Town of Irvington), 308 U.S. 147, 164-65 (1939) (same); and

Schad v. Mount Ephraim, 452 U.S. 61, 75-76 (1981) (“live

entertainment”)). One could draw an analogy to a law requir-

ing politicians to remain at least ten feet from those at a

political rally (enacted, say, for the compelling governmental

interest in maintaining the safety of political candidates). If

hand shaking or baby holding or simply speaking face-to-face

with a potential constituent could be considered a unique

form of communicating, such a law would likewise leave no

alternative forms of communication. The analogy goes even

further since a candidate’s face-to-face contact — as with the

table dancer’s — might be considered unique because it would

give the individual voter the feeling that she or he is “special”

and “important,” in contrast to the feeling of “coldness and

2 EE AS OR ES RR ES SE eee

27

impersonality” one feels when a political candidate addresses

a group from a stage. Cf. Frisby v. Schultz, 487 U.S. 474, 486,

(1988) (picketing focused upon individual residence is “fun-

damentally different from more generally directed means of

communication”).

In spite of Petitioners’ uncontroverted evidence, the

Ninth Circuit affirmed the district .court’s grant of summary

judgment for the City. The Ninth Circuit concluded that, even

assuming table dancing to be a unique medium of expression,

Petitioners could not prevail: “[U]niqueness, alone, is insuffi-

cient to trigger separate First Amendment protection” because

table dancing is, according to the Ninth Circuit, not “so

‘uniquely valuable or important [a] mode of communication’

as to be without effective substitute.” App. A, at A-20 (inter-

nal citations omitted). The court based its conclusion on a

reductio ad absurdum argument, noting that Petitioners’ con-

clusion would imply that “ ‘lap dancing’ . . . in which the

nude or semi-nude dancer performs in the patron’s lap” would

likewise constitute protected expression. Jd. at A-22.

The court’s analogy is instructive, as it suggests that the

court's underlying goal was in fact to eliminate table dancing

as a form of communication.'3 It is clear from the court’s

definition of lap dancing that lap dancing is itself improper

sexual contact, see Wash. Rev. Code § 9A.44.010(2) (1998) -

that is, it is malum per se and therefore proscribable indepen-

dent of any secondary effects with which it may be associ-

ated. Cf. Barnes, 501 U.S. at 572 (principal opinion of

Rehnquist, C.J.) (since “governmental interest served by [a

public indecency statute] is societal disapproval of nudity in

public places . . . [t]he statutory prohibition is not a means to

some greater end, but an end in itself”). Table dancing, in

contrast, or so we are told by the City and the court below, is

being prohibited not simply because it is itself wrongful, but

rather because of the secondary effects associated with it. The

reductio ad absurdum argument made by the Ninth Circuit

fails, therefore, for the simple reason that a prohibition on the

'3 See also infra Part Ill.

28

“absurdum” is permissible even if lap dancing is a unique

form of expression. There is thus no “absurdum” to which

Petitioners’ argument leads since Petitioners accept that gov-

ernment can regulate explicit sexual contact even if such

contact is expressive. Implicit in the court’s analogy, then, is

the assumption that table dancing, like lap dancing, is itself

improper sexually oriented conduct and is therefore proscrib-

able independent of any secondary effects with which it may

be linked. Such a holding, if made explicit, would effectively

eviscerate the “secondary effects” doctrine, since it would

necessarily imply that expressive conduct is independently

proscribable because of its sexual content. This would

directly contradict a long line of this Court’s cases holding

that non-obscene sexually explicit speech is entitled to First

Amendment protection. See, e.g., Reno v. ACLU, 521 US.

844 (1997).

Ultimately, Petitioners’ argument, based on their uncon-

troverted evidence, is that table dancing is a unique medium

of expression. At the very least, however, Petitioners’ evi-

dence raised a genuine issue of material fact that should have

precluded a grant of summary judgment to the City on the

question whether the statute is content-neutral and the ques-

tion whether the ordinance leaves ample alternative avenues

of communication. As the dissenting judge below noted,

“Appellants, by producing these declarations, have created a

material question of fact regarding whether table dancing is,

as . . . the majority conclude[s], merely stage dancing at a

‘louder volume,’ or whether it is an altogether different form

of expression that depends upon proximity, and communicates

a different and particular content.” App. A at A-29 (Rein-

hardt, J., dissenting); see also DCR, Inc. v. Pierce County,

964 P.2d 380, 396 (Wash. App. 1998) (Armstrong, J., dissent-

ing) (criticizing court’s holding that “as a matter of law

. the ‘proximity’ of the dance is not an element of the

‘content’ of the dance”); cf. Ino Ino v. City of Bellevue, 936

P.2d 154, 161 (Wash. 1997) (treating the issue as one of fact).

29

Moreover, this case squarely raises the important issue of

whether a court may grant summary judgment for the govern-

ment in a First Amendment challenge to legislation when the

challenger provides uncontroverted evidence that the regula-

tion is in effect “foreclos[ing] an entire medium of expres-

sion,” Ladue, 512 U.S. at 55, as well as substantial evidence

that the predominant purpose for which the regulation was

enacted was the suppression of protected expression, Renton,

475 U.S. at 47. The Ninth Circuit’s decision below thus

conflicts with a long string of this Court’s decisions and, if

left to stand, will create law in nine states that undermines

fundamental principles from which this Court has never

wavered.

30

CONCLUSION

As the Ninth Circuit explicitly recognized, the law as it

currently stands leaves many questions unsettled regarding

the application of First Amendment doctrine to non-obscene,

sexually explicit expression; the lower courts thus remain

confused and in disarray. Where confusion reigns in the First

Amendment, expression as unpopular — and, arguably, offen-

Sive - as erotic dancing is inevitably suppressed. As Justice

Harlan explained, however, “one man’s vulgarity is another

man’s lyric[, and] it is largely because governmental officials

cannot make principled distinctions in this area that the Con-

stitution leaves matters of taste and style so largely to the

individual.” Cohen v. California, 403 U.S. 15, 25 (1971).

Petitioners respectfully request that this Court grant the Writ

so as to clarify these doctrinal questions, and to do so in favor

of protection for a unique medium of expression.

Respectfully submitted,

Of Counsel: Gicpert H. Levy*

Suite 200

Market Place Two

2001 Western Avenue

P. CAMERON DeVorE

KRAIG BAKER

Davis WriGHT TREMAINE LLP Seattle, WA 98121

2600 Centry Square (206) 443-0670

1501 Fourth Avenue

Seattle, WA 98101 Counsel for Petitioners

Frank Colacurcio, Jr.,

David Ebert, and

Steve Fueston, d/b/a

DDF&S Investment Co.

*Counsel of Record