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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0479%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2000
- **Citation:** 529 U.S. 1053

## Text

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

eee ane

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_0479%3A1. Public record. Not legal advice.