Petition for Writ of Certiorari — Pooh Bah Enterprises, Inc. v. City of Chicago (No. 06-1614)

“ee”

No. 06-___

IN THE

Supreme Court of the United States

POOH BAH ENTERPRISES, INC.., ef al..

Petitioners,

Vv.

CITY OF CHICAGO, ef al.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Illinois

PETITION FOR WRIT OF CERTIORARI

MICHAEL A. ABRAMSON ROBERT CORN-REVERE

ARNSTEIN & LEHR LLP Counsel of Record

120 South Riverside Plaza DAVIS WRIGHT TREMAINE LLP

Suite 1200 1919 Pennsylvania Avenue, N.W.

Chicago, Illinois 60606 Washington D.C. 20006

(312) 876-7155 (202) 973-4225

DAVID A. EPSTEIN

DAVID A. EPSTFIN, LTD.

30 North LaSalle Street

Suite 2900

Chicago Illinois 60602

(312) 553-1479

Counsel for Petitioners

ABELLA LAE SON ETAL OLEATE TTD LEI: LILLE A OSGI LE NRIOCD OLE.

WiLSON-EPES PRINTING CO .INC — (202) 789-0096 -— WasHINGTON.D C. 20002

QUESTIONS PRESENTED

1. Whether First Amendment strict scrutiny is required to

review the regulation of expressive conduct where the gov-

ernment has not demonstrated that the expression at issue

causes adverse secondary effects?

2. Whether a city ordinance regulating sexually-oriented

expression may be upheld where the trial court found that the

“record is devoid of the existence of even potentially harmful

secondary effects?”

3. Whether a reviewing court is required under the First

and Fourteenth Amendments to remand for further evidence

where it has reversed a mid-trial directed finding of uncon-

stitutionality, and the challenger has not completed its rebut-

tal of the government’s asserted justifications for regulation?

(1)

il

PARTIES TO THE PROCEEDINGS

The petitioners are Pooh Bah Enterprises, Inc., an Illinois

corporation; Ace Ent. Co., Inc., an Illinois corporation; Perry

Mandera, president of Pooh Bah Enterprises, Inc. and of

Ace Ent. Co., Inc.; Lisa D. Sims, Christine E. Hadsall, and

Suzanne Lienquist, entertainers and dancers; and Peter

Abruzzo, Sr.

The respondents are the City of Chicago, an Illinois mu-

nicipal corporation; the License Appeal Commission of the

City of Chicago; and William D. O’Donaghue, Albert D.

McCoy and Irving J. Koppel, Chairman and Commissioners

of the Chicago License Appeal Commission.

RULE 29.6 STATEMENT

Pooh Bah Enterprises, Inc., and Ace Ent. Co., Inc., are

privately held corporations. None of their shares is held by a

publicly traded company.

TABLE OF CONTENTS

Page

SETS TIRING PRESTO cons isccsscaccescsaccsssaccscnsonnstens i

PARTIES TO THE PROCEEDING ................c..scc0000. il

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RRNA A PRUE RII EAR isdn csekasicccanpnassascinancatesesvasnen Vv

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STATEMENT OF JURISDICTION . 0.0.2. eeeeeeeee 2

CONSTITUTIONAL AND STATUTORY

PAD YB EN BEG Ws © AED vccosnecsccsessnncestanpeenssonecionn 2

SLATEMENT OF THE CASE .........c.ccccccccccscssscocassonees

PE a A EE, SR OWS WW cab nsciacic atscenasnsesicnecienaxincennie

REASONS FOR GRANTING THE WRIT .................. 11

I. CERTIORARI SHOULD BE GRANTED TO

RESOLVE AN ISSUE OF NATIONAL

IMPORTANCE THAT HAS DIVIDED THE

CIRCUIT COURTS CONCERNING THE

APPROPRIATE LEVEL OF SCRUTINY IN

EVALUATING CONTENT-CORRELATED

REGULATION OF SEXUALLY-ORIENTED

EE FGe WII sid sins caiscccminsabvnibininicthmnsarintibaiean 11

II. CERTIORARI SHOULD BE GRANTED TO

REVIEW WHETHER REGULATION OF

EROTIC ENTERTAINMENT IS CONSTI-

TUTIONALLY PERMISSIBLE WHEN THE

“RECORD [S DEVOID OF THE EXIS-

TENCE OF EVEN POTENTIALLY HARM-

FUL SECONDARY EFFECTS” AND THE

CHALLENGER IS NOT GIVEN A FULL

OPPORTUNITY TO CHALLENGE THE

GOVERNMENT’S JUSTIFICATION FOR

TR BRE isms comasnniiaiaieieibinisakieneiniees 18

iV

TABLE OF CONTENTS—Continued

Page

A. Review Should Be Granted Where the

Trial Court Found That the Record is

Devoid of Evidence of Harmful Secondary

PN iia coikciccticgiscrnnsaiacgio ai eco iee 19

B. This Court Should Grant Review Where

Appellate Courts Cut Short Petitioners’

Ability to Present Evidence Challenging

the City’s Justifications for the Law............ 21

C. Lower Courts Are Divided on the Nature

and Extent of Proof Necessary to Support

Local Regulation of Sexually Oriented

BRIER iis ss acicscicannicinideianictinndueminaacioinninnke 23

Ie AES sania tists asariacncsiihbiendnininapenicdantaiiinapaellins 26

Vv

TABLE OF AUTHORITIES

CASES Page

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

No. CV 95-7771-DDP (C.D. Cal., May 28,

RIN ich eciastegicencan ach cenihcsmnsslaackeceassa lacuna shine 14

Arkansas Writers’ Project, Inc. v. Ragland, 481

Sak BAe EE sckcesaicicincvnebsantastnbonchanaissinieds 13

Ashcroft v. ACLU, 542 U.S. 656 (2004)................ 1]

Barnes v. Glen Theatre, Inc., 501 U.S. 560

SEE Beiischcinccisamuissdimiintccmninbaaseanccamaans 12, 16, 18, 21

Ben's Bar, Inc. v. Village of Somerset, 316 F.3d

FRR PAE PROD si sa ca cccsanavdnseivbciancblonssanceanis 16, 24-26

Boos v. Barry, 485 U.S. 312 (1988) ...........e eee 15

Cafe 207, Inc. v. St. Johns County, 856 F. Supp.

641 (M.D. Fla. 1994), aff'd, 66 F.3d 272 (11th

Cir. 1995), cert. denied, 517 U.S. 1156 (1996)... 16

City of Erie v. Pap’s A.M., 529 U.S. 277 (2000)... passim

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

AD RR RAED itive sccceaccianvynninbcasanaieresbienntbovtent passim

City of Renton v. Playtime Theaters, Inc., 475

Re AUG A AD vtasnsdchcakeinectiniiovenitalepehwiiotntwiacend passim

DiMa Corp. v. Town of Hallie, 185 F.3d 823 (7th

Ce. RPMI ccscccsskiseuacevdsnssiapseniestouecaniabebecciamnsincks 17

Encore Videos, Inc. v. City of San Antonio, 330

ce RE CE As IF isctisicthdniacrineninasorcenseianns 24

Flanigan’s Enterprises, Inc. v. Fulton County,

Georgia, 242 F.3d 976 (11th Cir. 2001)............ 23-24

Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d

SE UU ES FIIEE Rds dsc bdesnccscshchbenitndnniapaicghonsnch 24

Heideman v. South Salt Lake City, 348 F.3d 1182

OP Noes EE Sracvcnnctsinaciantverdecsbesiccsnbastnaiins 25

Hudson v. Chicago Teachers Union Local No. 1,

TPA Ts EOD eikitaiicsrsniisstenintinacndeioinn 23

Illusions-Dallas Private Club, Inc. v. Steen, 482

Bed ee CIE, RIED ses isniciacakicoticsaniveseeine 16, 17, 24

vi

TABLE OF AUTHORITIES—Continued

Page

Joelner v. Village of Washington Park, 378 F.3d

EF Cas BED Shiai stich srvicnnanerbiicincasiosaiensas 12

Minneapolis Star v. Minnesota Comm’r of Rev-

ONE, DS TESTS CIF civics sncresesssseiarcessnsesss 13

Peek-a-Boo Lounge of Bradenton, Inc. v.

Manatee County, Fla., 337 F.3d 1251 (11th

Cir. 2003), cert. denied, 541 U.S. 988 (2004)... 17

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

Cir. 1997) (en banc), cert. denied, 522 U.S.

ST Bas ida aranaacth cio idctersies nncehictinaeissckekon te 17

R.V.S., L.L.C. v. City of Rockford, 361 F.3d 402

CFU RNEs NOTED Scisikisisiddesuicican sak capedsssacsovabckiniesians seus 13, 25

Ranch House, Inc. v. Amerson, 238 F.3d 1273

EF TI es Ie UD ia isis iicssstnnasonienvspaavncacdadiaeabccrsiess 15

RAV v. City of St. Paul, 505 U.S. 377 (1992)........ 11-13

Speiser v. Randall, 357 U.S. 513 (1958)............... 23

U.S. Sound & Service Inc. v. Township of Brick,

E26 BSG SOs CH CR. EGGT) cescsssciicsvsvcssssvecssccens 16

United States v. Playboy Entertainment Group,

ee Ne MEE sistant aniinenidayiieansonsceraios 11, 15

Virginia v. Black, 538 U.S 343 (2003) ............e00e 13

White River Amusement Pub, Inc. v. Town of

Hartford, 481 F.3d 163 (2d Cir. 2007).............. 17

Young v. American Mini Theatres, Inc., 427 U.S

ra taicas snsipcd plausapuccaaphadantonieneechalvencaaie 12, 16, 18

STATE CASES

G.Q. Gentlemen's Quarters, Inc. v. City of Lake

Ozark, 83 S.W.3d 98 (Mo. 2002) .............eee 15

Restaurant Ventures, LLC v. Lexington-Fayette

Urban County Government, 60 S.W.3d 572

ls IU aa loticdi sada kccboestioesphatincibcinccecscsunasedasenabeces 25

FEDERAL STATUTES

oti a 3: | REDO RSC aOR OO ete 2

Vii

TABLE OF AUTHORITIES—Continued

RULES Page

Municipal Code of Chicago, § 4-60-140(d) .......... passim

CONSTITUTIONAL PROVISIONS

ee I oie ii ccs cha cigisie passim

Fourteenth Amendment ...........................cceceee. 2, 4, 23, 26

SERRE MEE | 4,6

OTHER AUTHORITIES

G. Gunther, Cases and Materials on Constitu-

tional Law 1373 (10th ed. 1980)

IN THE

Supreme Court of the Gnited States

No. 06-___

POOH BAH ENTERPRISES, INC., et al.,

Petitioners,

V.

CITY OF CHICAGO, et al.,

Respondents.

On Petition for Writ of Certiorari to the

Supreme Court of Illinois

PETITION FOR WRIT OF CERTIORARI

OPINIONS BELOW

The opinion of the Supreme Court of Illinois (October 5,

2006), reported at 224 IIl.2d 390 (2006), is included in the

Appendix to this Petition, at 1 (hereafter “App.”). The unpub-

lished order of that Court denying rehearing (March 5, 2007)

is included at App. 64. The dissenting opinion of Justice

Freeman to the denial of rehearing, reported at 224 III. 2d 390

(March 5, 2007) is included at App. 65.

Tre unpublished Order of the Appellate Court of Illinois

(September 28, 2004) is included at App. 92.

The Memorandum Order and Opinion of the Circuit Court

of Cook County Iilinois (January 18, 2001) is included at

App. 133.

2

STATEMENT OF JURISDICTION

This Court has jurisdiction to review the decision of the

Supreme Court of Illinois pursuant to 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

United States Constitution, First Amendment:

“Congress shall make no law respecting an establish-

ment of religion, or prohibiting the free exercise thereof;

or abridging freedom of speech, or of the press; or the

right of the people to peaceably assemble, and to petition

the Government for a redress of grievances.”

United States Constitution, Fourteenth Amendment:

“No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person of

life, liberty, or property, without due process of law

* * *”»

Municipal Code of Chicago, § 4-60-140(d):

“No person licensed under this chapter shall permit

any employee, entertainer or patron in any live act,

demonstration, dance or exhibition on licensed premises

which exposes to public view:

(1) His or her genitals, pubic hair, buttocks, perimeum

and anal region or pubic hair region; or

(2) Any device, costume, or covering which gives the

appearance of or simulates the genitals, pubic hair,

buttocks, perineum, anal region or pubic hair re-

gion; or

(3) Any portion of the female breast at or below the

areola thereof.

For purposes of this section, any of the items described in

subsection (d)(1) through (d)(3) shall be considered exposed

3

' to public view if it is uncovered or less than completely and

opaquely covered.”

STATEMENT OF THE CASE

In 1993, Pooh Bah Enterprises, Inc. (“Pooh Bah”) opened a

gentlemen’s club (the “Club’”’) in an industrial area on the

north side of Chicago. Shortly thereafter, the City of Chicago

(the “City”). initiated administrative proceedings against it

to revoke all of its City licenses, including its retail liquor

license. The City charged that Pooh Bah had violated § 4-60-

140(d) of the Chicago Municipal Code (the “Coverage Ordi-

nance”) by permitting various female dancers at the Club to

expose portions of their buttocks and the sides of their breasts

to patrons’ view.

Pooh Bah unsuccessfully attempted to enjoin the admin-

istrative proceeding in the circuit court of Cook County based

on its state constitutional attack on the ordinance (the “1993

Case”). The denial of a temporary restraining order was

affirmed by the [Illinois Appellate Court, but the 1993 Case

remained pending during the administrative revocation pro-

ceedings before the City’s Local Liquor Control Commission

(“LLCC”).

The Commissioner ultimately entered an order revoking

Pooh Bah’s Chicago liquor, business and entertainment

licenses based on his finding that the company had violated

§ 4-60-140(d). Pooh Bah appealed to the Chicago License

Appeal Commission, which affirmed.

Pooh Bah sought judicial review of the administrative

findings and revocations in the circuit court of Cook County,

in “re still-pending 1993 Case. Pooh Bah later amended its

complaint to raise First Amendment and other federal law

attacks on the Coverage Ordinance in addition to its state

law claims.

4

The City then promptly removed the 1993 Case to the

United States District Court, which remanded the state law

issues to the Illinois courts, while retaining the federal

constitutional issues. A second removal by the City in 1998

was similarly remanded in 1999. The District Court sub-

sequently dismissed the federal court case.

Shortly thereafter, the City brought a second lawsuit

against Pooh Bah (the “1999 Case), in which the City sought

to enjoin the Club’s business as a “nuisance” under Chicago’s

general nuisance ordinance. (App. 133.) The Illinois Su-

preme Court defines a public nuisance as a “public exhibition

of any kind that tends to the corruption of morals, to a

disturbance of the peace or of the general good order and

welfare of society.” (App. 136.)

The nuisance claim in the 1999 Case was predicated on

renewed allegations of the same violations of § 4-60-140(d)

as were alleged in the 1993 Case, i.e., exposure of prohibited

portions of dancers’ buttocks and breasts. In addition, the

City alleged in the 1999 Case that a dancer had solicited

prostitution at the Club. In defense, Pooh Bah again chal-

lenged the constitutionality of § 4-60-140(d), facially and

as applied to it, under the Illinois and United States

Constitutions.

The 1999 Case went to trial quickly on the City’s pre-

liminary injunction request. After the City rested its case and

Pooh Bah began to present its evidence, the circuit court

granted Pooh Bah’s motion for a directed finding. (App. 127,

139.) The circuit court held that the Coverage Ordinance

contravened the First and Fourteenth amendments to the

United States Constitution and article I, section 4, of the

[Illinois Constitution of 1970 and therefore § 4-60-140(d)

could not serve as a required predicate for a finding that Pooh

Bah’s Club was a public nuisance (under the City nuisance

ordinance). Finding that the City had failed to establish that

operation of the Club created a public nuisance in any way,

5

the circuit court denied the City’s motion for a preliminary

injunction. (App. 136-42, 153.)

The City then rested its entire case in chief in the 1999

Case, including its defense of the Coverage Ordinance. The

parties and the trial court agreed in formal orders: (1) to

consolidate the 1993 and 1999 Cases and their evidentiary

records, (2) to convert the preliminary injunction directed

finding into a final order in both cases, and (3) to stipulate

that both parties would retain the right to complete their

evidence on remand if the directed finding of unconsti-

tutionality of § 4-60-140(d) were later reversed on appeal.

(App. 130) (Consolidation Order); (App. 125) (Partial Judg-

ment Order).

Accordingly, on May 3, 2001, the circuit court entered

judgment in favor of Pooh Bah and against the City on the

public nuisance claims; reversed the order of the Liquor

Appeal Commission affirming the revocation of Pooh Bah’s

Chicago licenses; vacated the revocation of those licenses;

reserved for future consideration various related and sub-

sidiary issues; and made an express finding that there was

no just reason for delaying enforcement or appeal. (App.

125-29.)

The City appealed to the Illinois Appellate Court, which

held that § 4-60-140(d) of the Municipal Code of Chicago

does not violate either the federal or the [llinois Constitution,

and reversed the circuit court’s constitutional rulings. (App.

92-124.) The court of appeals did not reach the merits of

LLCC’s decision to revoke Pooh Bah’s liquor license. (App.

123-24.) The appellate court remanded for further proceed-

ings on remaining undecided issues.

Pooh Bah then sought and was granted review in the

Supreme Court of Illinois. On October 5, 2006, the Supreme

Court of Illinois affirmed the decision of the Appellate Court

as to the constitutionality of § 4-60-140(d) under the IIli-

6

nois Constitution and under the United States Constitution.

(App. 1.) Pooh Bah then sought rehearing, which was denied

on March 5, 2007, over the objection of Justice Freeman.

(App. 64-91.) This petition follows.

STATEMENT OF FACTS

Since 1993, Pooh Bah Enterprises, Inc. (“Pooh Bah’’), has

operated a gentlemen’s club in an industrial area adjacent to a

rail spur and the Chicago River on the north side of Chicago

(the “Club”). The Club presents non-obscene erotic dancing

as entertainment.

From the outset of this litigation, Petitioners raised the

issue whether Pooh Bah and its dancers have a First

Amendment right to present erotic dance performance even

though the dancers’ buttocks and the sides of their breasts are

more scantily clad than the City of Chicago regulations (in

§ 4-60-140(d)) mandate in establishments licensed to sell

alcoholic drinks—or, conversely, whether the City can

regulate the body coverage of sexually-oriented live dance

performers in City-licensed establishments. In particular,

Pooh Bah raised the question whether the City’s regulations

are content-based or content-neutral, and whether the City

had met its burden to show that the regulations were

necessary and effective to combat adverse secondary effects.

The Coverage Ordinance was adopted by the City in 1978

without legislative findings, but with the stated purpose to

“control[{] the form of entertainment” in venues that serve

alcohol. (App. 157.)

In 1992, before adopting the gentlemen’s club entertain-

ment format, Pooh Bah met with the City Zoning Admin-

istrator, the Director of the LLCC, the Director of the Illinois

Liquor Control Commission, and the district police com-

mander, seeking guidance as to what was permissible. Pooh

Bah sought to explain its business plan and to ascertain and

resolve any regulatory issues. The LLCC Director was asked

7

for an opinion concerning the requirements for coverage.

The LLCC declined to give an opinion as to what was

permissible.

At all times, Pooh Bah has maintained all necessary

licenses, including a City liquor license, a City late-hour

license, and a City music and dance license. It also has

obtained two City amusement licenses that permit Pooh Bah

to present stage dancing to its patrons. Because Pooh Bah has

a City tavern license, a person under age 21 cannot enter

unless accompanied by a parent or legal guardian. (RA.

C00407.) The Club occupies a two-level industrial building.

The first floor contains a bar, the main stage and two side

stages, with tables for patrons. (SR. 00165.) The second

floor consists of a large dressing room for the dancers.

Pooh Bah’s Club is located in a leased building in a C3-2

commercial-manufacturing zone that permits a nightclub that

sells alcohol and features entertainment. The Club also

complies with Chicago’s 1993 adult use (dispersal) zoning

ordinance.” (SR. C00410.) The Club is in a non-residential

zone. (R. 02848, 02875.) On the west side of Kingsbury

Street, across from the Club, the zoning classification was

M3-4 (heavy manufacturing) and that propertyadjacent to

' (SR. 00417-18.) “SR.” denotes the Petitioner’s citations to six vol-

umes of Supplemental Record submitted to the Appellate Court of Illinois

by agreement of the parties. “R.” denotes the Petitioner’s citations to the

record of proceedings from the Circuit Court of Cook County, Illinois.

“RA” denotes citations to the Record on Appeal submitted by the City

to the Appellate Court of Illinois. Record citations that include a “C”

prefix refer to filings.

? The City’s “adult use” zoning regulations adopted in 1993 are not at

issue in this case. At all times, Pooh Bah has been in compliance with all

City zoning regulations. In 2004, Chicago adopted a new comprehensive

zoning ordinance that altered the designations of its zoning districts.

However, this did not change the zoning treatment of the area where Pooh

Bah is located. For the sake of clarity, where this petition refers to zoning

designations it uses the ones that were in effect from 1955-2004.

8

the Chicago River, was improved with a zinc factory. (/d.)

Adjacent to the Club on the north, south, and east are

manufacturing and commercial uses. To the north are

primarily drink and entertainment venues. (SR. 00406-07; R.

02853, 02875-77.)

Pooh Bah’s entertainment format features several female

entertainers dressed in gowns, dresses or pant suits perform-

ing a dance show to a set of three songs on the main stage.

(R. 158-59.) During the first two songs, the dancers typically

remove some of their clothing so that during the third song

each is wearing a thong covering below the waist and latex

rubber covering portions. of their breasts. (/d.) After the

group stage dances, the dancers are available tor dances that

are performed adjacent to a patron’s table for a tip, usually

$20 per dance. (R. 00160, 00166.)

Pooh Bah’s Club does not present nude entertainment and

has never sought to present total nudity. This litigation has

focused entirely on the City’s claim that the dancers’ buttocks

and the sides of their breasts were not sufficiently covered.

The tnal court found that there was no violation of the

requirements for breast coverage, App. 136-39, but the

Illinois Supreme Court adopted a more expansive construc-

tion of the Coverage Ordinance. (App. 121-23.)

As noted above, this case has a long procedural history.

The appeals that are before this Court stem from two separate

City efforts to enforce the body coverage requirements of § 4-

60-140(d) by shutting down Pooh Bah or by enjoining Pooh

Bah’s business: (1) the 1993 license revocation admin-

istrative action and (2) the 1999 injunction action.

The City has also abandoned several factual claims and

legal theories along the way. The City had initially included

an “obscenity” claim under the Illinois statute, which it

dropped early in the 1993 Case. (R. C1163.) During the tnal

in 1999-2000, the City made strenuous efforts to show that

9

Pooh Bah’s dancers’ breasts were not covered “opaquely” but

that charge was explicitly abandoned mid-trial. In addition,

the City originally alleged that the presence of the Club

depressed property values in the area, but subsequently

dropped this claim.

The 1999 (nuisance) Case went to trial on the City’s pre-

liminary injunction motion. During the incomplete trial, the

trial court heard 15 witnesses for the City before it rested, and

13 witnesses for Pooh Bah, which did not finish presenting its

case when a directed finding was entered that the Coverage

Ordinance is unconstitutional. In a written decision, App.

133, 147, the tnal court concluded, inter alia:

[T]he City has not even come close to demonstrating the

existence of or even the possibility of the existence of

these effects. The Court finds the record devoid of

any proof of the existence of even potentially harmful

secondary effects.

The 1999 trial covered two main issues: (1) the con-

stitutionality of the City’s Coverage Ordinance and (2) the

City’s charge that a Club dancer had solicited two undercover

police officers for prostitution. (R. C00003.) After hearing

testimony from, among others, the officers and the accused

dancer (a computer-studies masters degree candidate at

DePaul University), the trial judge rejected the City’s

solicitation claim, and concluded that “undercover police

officers . . . tried to entrap the dancers in attempt to show

prostitution and solicitation. According to the clear evidence

presented . . ., the dancers were not interested. The police

tried using video cameras in their neckties—James Bond

style—to show violations. That failed too.” (App. 142.) The

City did not appeal this issue.

The City appealed the constitutional rulings and the Illinois

Appellate Court reversed the trial court. The appellate panel

held that intermediate scrutiny was the appropriate First

Amendment standard of review. (App. 109-11.) The Appel-

10

late Court found it “entirely reasonable and rational for the

City to conclude that combining alcohol with nudity produces

adverse secondary effects . . . even in the absence of specific

studies on the matter.” (App. 112-14.) Nevertheless, it

remanded the matter for further determinations by the tnal

court. (App. 122-24.)

The Illinois Supreme Court affirmed, and rejected Pooh

Bah’s claim that it should be permitted to introduce additional

evidence on remand on the secondary effects issues. Instead,

the Court held that “the constitutionality of the ordinance is

no longer subject to dispute.” (App. 63.) Applying inter-

mediate scrutiny review, the court stated “that liquor and sex

are an explosive combination is a proposition so frequently

confirmed by human experience that it can scarcely be

questioned.” (App. 37) (citations omitted) Notwithstanding

the findings of the trial court, the Illinois Supreme Court

concluded “that the evidentiary record . . . supported the

proffered rationale for the ordinance.” (App. 27.)

Justice Freeman dissented from the court’s denial of

rehearing. In contrast to his earlier vote to affirm the

appellate court, Justice Freeman wrote that the City had not

shown that the Coverage Ordinance has a content-neutral

purpose, and that the appellate courts had upheld the law

based solely on anecdotal evidence of supposed primary

effects of the combination of alcohol and live erotic enter-

tainment. (App. 65-66, 68.) Additionally, he disagreed with

the majority because the court failed to give weight to the

circuit court’s finding that the record was devoid of proof of

adverse secondary effects, and had cut off Pooh Bah’s right to

present evidence challenging the City’s justifications. (App.

71-77.)

11

REASONS FOR GRANTING THE WRIT

I. CERTIORARI SHOULD BE GRANTED TO

RESOLVE AN ISSUE OF NATIONAL IMPOR-

TANCE THAT HAS DIVIDED THE CIRCUIT

COURTS CONCERNING THE APPROPRIATE

LEVEL OF SCRUTINY IN EVALUATING

CONTENT-CORRELATED REGULATION OF

SEXUALLY-ORIENTED EXPRESSION

This Court has held consistently that when government

regulation of sexually-oriented speech is predicated on the

content of expression, it must be subjected to strict First

Amendment scrutiny. United States v. Playboy Entertain-

ment Group, 529 U.S. 803, 811, 814-815 (2000) (Where

“[t]he overriding justification for the regulation is concern for

the effect of the subject matter on . . . viewers, [a regulation]

is not ‘justified without reference to the content of the

regulated speech’” and must satisfy. strict scrutiny.); Ashcroft

v. ACLU, 542 U.S. 656, 660 (2004) (“the Constitution

demands that content-based restrictions on speech be pre-

sumed invalid”’).

The basic constitutional principle applies equally to efforts

to regulate expressive conduct, RAV v. City of St. Paul,

505 U.S. 377, 382 (1992), including adult entertainment and

erotic dancing, where the regulation is content-based. See,

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

425, 434 (2002) (“If the regulation were content-based, it

would be considered presumptively invalid and subject to

strict scrutiny.”); City of Erie v. Pap’s A.M., 529 U.S. 277,

289 (2000) (“If the government’s interest is related to the

content of expression . . . then the regulation falls outside the

scope of the O’Brien test and must be justified under a more

demanding standard.”); City of Renton v. Playtime Theaters,

Inc., 475 U.S. 41, 46-47 (1986) (“regulations enacted for the

purpose of restraining speech on the basis of its content pre-

sumptively violate the First Amendment”).

12

As a “specific exception” to this bedrock rule, this Court

has subjected regulations of expressive conduct only to

intermediate constitutional scrutiny where they were adopted

not to restrict speech but to combat content-neutral “secon-

dary effects” of expression. RAV v. St. Paul, 505 U.S. at 394.

This exception has been articulated most frequently in the

context of adult entertainment regulations and zoning re-

strictions. See, e.g., Young v. American Mini Theatres, Inc.,

427 U.S 50 (1976); City of Renton, 475 U.S. at 47; Alameda

Books, Inc., 535 U.S. at 434; Pap’s A.M., 529 U.S. at 289;

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

While the “secondary effects” exception is well estab-

lished, it is neither well understood nor consistently applied.

As this Court observed in Renton, ordinances that treat

“theatres that specialize in adult films differently from other

kinds of theatres” do not “fit neatly into either the ‘content-

based’ or the ‘content-neutral’ category.” Renton, 475 U.S.

at 47. More recently, several Justices have begun to question

the shorthand designation of such ordinances as “content-

neutral.” Alameda Books, 535 U.S. at 448 (Kennedy, J.,

concurring) (“The Court appears to recognize that the

designation was something of a fiction” that “is perhaps more

confusing than helpful.”); id. at 457 (Souter, J., dissenting)

(“It would in fact make sense to give this kind of zoning

regulation a First Amendment label of its own” such as

“content correlated.”). See Joelner v. Village of Washington

Park, 378 F.3d 613, 621 (7th Cir. 2004) (“‘content neutrality’

is a concept easily and oft confused”).

Because of this doctrinal ambiguity, it often is difficult to

determipe when a “content correlated” restriction on expres-

sive speech may be subject only to intermediate scrutiny as

opposed to strict scrutiny. In cases involving such laws, the

First Amendment does not permit the government to presume

that expressive conduct falls into a “proscribable category.”

13

RAV y. St. Paul, 505 U.S. at 394; Virginia v. Black, 538 U.S

343, 365-366 (2003). To the contrary, the presumption runs

the other way. The First Amendment requires reviewing

courts to be skeptical of any attempts to discriminate between

speakers or messages based on content. See Minneapolis Star

v. Minnesota Comm'r of Revenue, 460 U.S. 575, 592-593

(1980); Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

221, 230 (1987). This Court has held emphatically that the

government bears the burden of proof, regardless of the level

of scrutiny. Black, 538 U.S. at 367 (presumption that cross

burning 1s “intended to intimidate” is “unconstitutional on its

face” because “[t]he First Amendment does not permit such a

short cut.”’).

Specifically with regard to adult entertainment, this Court

has held that the government “bears the burden of proving

evidence that supports a link between . . . such operations and

asserted secondary effects.” Alameda Books, 535 U.S. at 437

(plurality op.); id. at 449 (Kennedy, J., concurring) (“a city

must advance some basis to show that its regulation has the

purpose and effect of suppressing secondary effects, while

leaving the quantity and accessibility of speech substantially

intact”) (emphasis added). See also R.V.S., L.L.C. v. City of

Rockford, 361 F.3d 402, 408 (7th Cir. 2004) (“cnly after

confirming that a zoning ordinances’s purpose is to combat

the secondary effects of speech do we employ Renton’s

intermediate scrutiny test’).

This Court has not yet clarified when a government that

has failed to meet its burden of proof with respect to sec-

ondary effects necessarily must satisfy strict scrutiny to sup-

port a content-based regulation of speech. For example, the

district court in Alameda Books subjected the Los Angeles

ordinance at issue there to strict scrutiny after the city failed

to substantiate its “content-neutral” justifiations, but the court

of appeals affirmed on different grounds, and the issue was

not presented to this Court. Alameda Books, 535 U.S. at 433.

14

See Alameda Books, Inc. v. City of Los Angeles, No. CV 95-

7771-DDP (C.D. Cal., May 28, 1998) (“the City’s failure to

demonstrate a genuine issue of fact as to the content-neutral

justification . . . requires analysis of the ordinance as a

presumptively invalid prior restraint’). As a consequence,

lower courts lack meaningful guidance for when they must

apply strict scrutiny in cases involving sexually-oriented

expressive conduct.

In this case, for example, the Illinois Supreme Court

upheld the Chicago ordinance under intermediate scrutiny.

(App. 25-30, 36.) It did so despite the fact that the city

council offered no contemporaneous legislative findings for

the Coverage Ordinance to support the 1999 claim that it was

intended to combat secondary effects, and notwithstanding

legislative history that suggested that the purpose underlying

the ordinance was content-based. See Journal of the Chicago

City Council, January 17, 1978, at 722 (Report of the Com-

mittee on Police, Fire and Personnel, recommending the

approval of the coverage ordinance because it “controls the

form of entertainment” in liquor venues). (App. 157.) The

Illinois Supreme Court cited the preamble to the later-enacted

1993 zoning ordinance as a statement of legislative purpose,

App. 35, 36, but as Justice Freeman observed, “[t]he findings

on which this court’s opinion relies focus on the City’s

justification for enacting the [1993] zoning restrictions, rather

than for the earlier-enacted coverage ordinance.” (App. 79)

(Freeman, J. dissenting) (emphasis in original).

Evaluating the City’s proffer of post-enactment evidence of

secondary effects, the trial court below held that the record

was “devoid of any proof of the existence of even potentially

harmful secondary effects.” (App. 76.) Nevertheless, the

appellate courts disregarded this finding, concluding instead

that “it can scarcely be questioned” that “liquor and sex are

an explosive combination.” (App. at 37.) (citations omitted)

15

Justice Freeman examined this rationale and reasoned that

the majority’s conclusion should have triggered analysis “of

whether strict scrutiny review is applicable in this case”

because the decision rested on “anecdotal evidence of the

supposed primary effects of the combination of alcohol and

live seminaked dancing on its viewers.” (App. 68) (Freeman,

J. dissenting) (emphasis in original). Compare Playboy

Entertainment Group, 529 U.S. at 811 (“The overriding jus-

tification for the regulation is concern for the effect of the

subject matter on young viewers. . . . This is the essence of

content-based regulation.”); Pap’s A.M., 529 U.S. at 291

(Erie did not “attempt to regulate the primary effects . . ., i.e.,

the effect on the audience of watching nude dancing in its

ordinance”); Boos v. Barry, 485 U.S. 312, 321 (1988) (“[t]he

emotive impact of speech on is audience is not a ‘secondary

effect’”). However, the Illinois Supreme Court majority dis-

missed this argument regarding the appropriate level of

scrutiny in a cursory footnote. (App. 26)

The decision below in this case illustrates how a general

lack of guidance has spawned a conflict among lower courts,

including the federal circuit courts, about how to analyze the

appropriate level of scrutiny and the nature of the evidence

courts should examine. For example, unlike the Illinois

Supreme Court in this case, the Eleventh Circuit rejected the

argument that reviewing courts “should simply assume that

the legislature’s purpose was to combat the negative impact

on health, safety, and welfare allegedly caused by venues that

provide nude dancing.” Ranch House, Inc. v. Amerson, 238

F.3d 1273, 1282-83 (11th Cir. 2001). See also G.Q. Gen-

tlemen’s Quarters, Inc. v. City of Lake Ozark, 83 S.W.3d 98,

102-103 (Mo. 2002) (court was unwilling “to presume that

the City enacted [a regulation of erotic dancing where liquor

1s served] to prevent negative secondary effects,” and

therefore concluded that “the City had the heavy burden of

justifying the ordinance under strict scrutiny”). Similarly, the

Third Circuit rejected the application of Renton to a content-

16

based adult use zoning restriction and applied strict scrutiny

after finding that “a regulation that singles out non-obscene

sexually explicit material because of its impact on minors is

not content-neutral.” U.S. Sound & Service Inc. v. Township

of Brick, 126 F.3d 555, 559 (3d Cir. 1997) (“[t]he impact

of protected speech on minors is a direct, rather than a

secondary, effect”).

By contrast, other circuits have adopted intermediate

scrutiny as the presumptive standard of review for otherwise

content-based regulations of erotic expression. In ///usions-

Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 309 (Sth Cir.

2007), the Fifth Circuit held such a regulation content neutral

even though the regulation itself “references content” and

“even without a legislative record to suggest a purpose

unrelated to speech.” It used intermediate scrutiny to review

an ordinance that prohibited sexually oriented businesses

from obtaining or renewing licenses to serve alcohol, even

though the court also found that “there simply is no evidence”

to support a link “between the combination of alcohol service

and erotic dancing and negative secondary effects.” Jd. at

310, 313 (emphasis in original). Similarly, in a case cited by

the Illinois Supreme Court below as its principal authority,

the Seventh Circuit found that “state regulations prohibiting

the sale or consumption of alcohol on the premises of adult

entertainment establishments must be analyzed in light of

American Mini Theatres and Barnes, as modified by their

respective progeny.” Ben's Bar, Inc. v. Village of Somerset,

316 F.3d 702, 712 (7th Cir 2003) (emphasis added). See also

Cafe 207, Inc. v. St. Johns County, 856 F. Supp. 641, 644 n.3

(M.D. Fla. 1994), aff'd, 66 F.3d 272, 273 (11th Cir. 1995)

(per curiam), cert. denied, 517 U.S. 1156 (1996) (inter-

mediate scrutiny applies to ordinance limiting adult enter-

tainment even if it is “specifically aimed” at the expressive

activity of a particular individual).

17

The circuit courts also are divided on the related question

of whether a municipality can use post-enactment evidence

alone to satisfy Renton’s burden to show the predominant

purpose of a “content correlated” ordinance is to combat

secondary effects. See, e.g., White River Amusement Pub,

Inc. v. Town of Hartford, 481 F.3d 163, 171 (2d Cir. 2007)

(requiring “pre-enactment evidence” and collecting circuit

cases discussing this requirement); Peek-a-Boo Lounge of

Bradenton, Inc. v. Manatee County, Fla., 337 F.3d 1251,

1268 (11th Cir. 2003) (“this Court has consistently inter-

preted Renton to require pre-enactment evidence”), cert.

denied, 541 U.S. 988 (2004). But see Illusions-Dallas

Private Club, Inc., 482 F.3d at 310 (no pre-enactment record

is required for “content-neutral” treatment); Phillips v.

Borough of Keyport, 107 F.3d 164, 178-179 (3d Cir. 1997)

(en banc) (“[W]e believe that insistence on the creation of a

legislative record is an unwarranted intrusion into the internal

affairs of the legislative branch of governments.”), cert.

denied, 522 U.S. 932 (1997); DiMa Corp. v. Town of Hallie,

185 F.3d 823, 829-30 (7th Cir. 1999) (“[A] municipality may

make a record for summary judgment or at trial with evidence

that it may not have had when it enacted its ordinance.”), cert.

denied, 529 U.S. 1067 (2000).

In sum, this Court’s guidance is sorely needed on a

question that goes to the heart of the First Amendment’s

prohibition of content-based regulation of protected expres-

sion. This is a critical issue, both because of the significant

number of cases in federal and state courts involving the

regulation of adult entertainment, and because content-based

regulations with assertedly neutral purposes may be used as

“a covert attack on speech” unless there are adequate

safeguards. Alameda Books, 535 U.S. at 447 (Kennedy, J.,

concurring). Accordingly, this Court should grant review.

18

Il. CERTIORARI SHOULD BE GRANTED TO

REVIEW WHETHER REGULATION OF

EROTIC ENTERTAINMENT IS CONSTITU-

TIONALLY PERMISSIBLE WHEN THE

“RECORD IS DEVOID OF THE EXISTENCE

OF EVEN POTENTIALLY HARMFUL SEC-

ONDARY EFFECTS” AND THE CHALLENGER

IS NOT GIVEN A FULL OPPORTUNITY TO

CHALLENGE THE GOVERNMENT’S JUSTI-

FICATION FOR THE LAW

This Court has upheld the constitutionality of local

ordinances regulating adult entertainment in a number of

cases, e.g., Alameda Books, Inc., 535 U.S. 425 (zoning, anti-

concentration); Pap’s A.M., 529 U.S. 277 (nudity); Barnes,

501 U.S. 560 (nudity); Renton, 475 U.S. 41 (zoning); Young,

427 U.S. 50 (zoning), but these decisions have not produced a

clear body of law. But while Renton produced a majority

opinion, subsequent cases that have attempted to apply its

teachings have resulted in sharply conflicting pluralities. See,

e.g., Barnes, 501 U.S. at 562 (three Justice plurality); Pap’s

A.M., 529 U.S. at 282 (four Justice plurality). See also

Young, 427 U.S. at 52 (four Justice plurality). The cases have

focused on the legislative justifications proffered and the

evidence presented to support the conclusion that the reg-

ulation was necessary and effective to combat adverse

secondary effects.

Most recently, this Court has sought to clarify that when a

challenger succeeds in casting doubt upon a city’s justi-

fication for such an ordinance, the burden of proof shifts back

to the government. Alameda Books, 535 U.S. at 439. Se id.

at 453 (Kennedy, J., concurring) (“If these assumptions can

be proved unsound at trial, then the ordinance might not

withstand intermediate scrutiny.”). However, it has not yet

explained the point at which there is sufficient “doubt” about

the government’s asserted rationale to require it to present

19

additional evidence, or whether a reviewing court may cut

short a challenger’s ability to present evidence questioning

the proffered reasons for the law. Because there is significant

disagreement among the lower courts on these issues, this

Court should grant review in this case.

A. Review Should Be Granted Where the Trial

Court Found That the Record is Devoid of

Evidence of Harmful Secondary Effects

It is the City’s burden to demonstrate that a proposed

regulation of expressive conduct is intended to combat ad-

verse secondary effects. Typically, local governments are

permitted to point to a wide variety of materials to support

such a claim, including the text of the ordinance, legislative

findings or preamble, or any studies or findings about which

the legislators were aware. Alameda Books, 535 U.S. at 438.

However, local governments are not permitted to get away

with “shoddy data” to support such laws, and where a

challenger succeeds in casting doubt about the justifications

for the law, the government must provide credible evidence to

support the law. /d. at 439.

This case presents the issue of whether a City regulation of

expression may be upheld when a trial court finds that there is

no evidence of harmful secondary effects emanating from the

regulated expressive activity (after the government rested its

case). (App. 147.) There was no statement of purpose for the

1978 Coverage Ordinance—apart from the description that it

was designed to control the “form of entertainment” where

alcohol is sold—and no legislative findings. Instead, the

[llinois Supreme Court pointed to legislation adopted 15 years

later, i.e., the preamble of “a package of ordinances and

ordinance amendments adopted in 1993 to establish ‘adult

uses’ within various zoning districts in the City” as support-

ing the existence of secondary effects. (App. 32.) But see

App. 77 (Freeman, J., dissenting) (1993 zoning ordinance

20

“adopted location and dispersion regulations for adult uses in

the city”).

None of this Court’s prior cases directly address this situ-

ation. For example, in City of Erie v. Pap’s A.M., the plur-

ality opinion accepted the city’s rationale that the regulation

of nude dancing was necessary to prevent adverse secondary

effects, but acknowledged that “Kandyland has never

challenged the city council’s findings or cast any specific

doubt on the validity of those findings.” Pap’s A.M., 529

U.S. at 284. Likewise, in Alameda Books, the plurality

opinion focused on a study done by the city as a basis for

justifying a zoning restriction on the location of adult en-

tertainment establishments. However, according to the plur-

ality neither the challenger nor the dissenting opinions offered

data or competing theories to undermine the study upon

which the city relied. Alameda Books, 535 U.S. at 437. Still,

the case was remanded for further evidence on these fact-

ual issues.

This case thus poses the threshold question of whether a

city ordinance may be upheld where the trial court has held

that the record is “devoid of any proof of the existence of

even potentially harmful secondary effects.” (App. 76.) In

addition, both Illinois reviewing courts below upheld the

ordinance without requiring any evidence that the additional

covering of the buttocks (or sides of breasts) required by the

Chicago ordinance would have the slightest effect on sec-

ondary effects or that there had been any adverse secondary

effects in the many years that the Club operated.

In this case, the government’s justifications unraveled

throughout the course of the litigation. The City initially

claimed lower property values and community deterioration

as adverse secondary effects to be targeted by the Coverage

Ordinance, but later abandoned any claim that such effects

were at all “associated” with the gentlemen’s club. No evi-

dence was presented to support the City’s claims regarding

21

lower property values. It also argued that the ordinance was

necessary to combat crime—prostitution in particular—but

the City could not show an increase in such activity in the

vicinity of the Club. The City also failed in its attempt to use

undercover police to entrap the dancers. (App. 142.) Given

the City’s evidentiary failures and shifting rationales, this

case places in bold relief the question left open in Alameda

Books: What must a challenger do to “cast doubt” upon a

city’s assertions that a law is needed to combat adverse

secondary effects?

The absence of the targeted secondary effects presents

fundamental questions of First Amendment jurisprudence that

the Court has not clearly addressed, and on which it has not

provided guidance to the lower courts. Clarification of the

government’s burden, and of the effect of rebutting evidence

on these threshold points by a challenger would provide

valuable guidance to the lower courts as well as to local

governments and the erotic entertainment industry. This is an

especially pervasive issue throughout the country in light of

the decades of local regulation of adult enterprises, especially

the “adult zoning” ordinances adopted following Renton and

the regulation of erotic dancing after Barnes.

B. This Court Should Grant Review Where

Appellate Courts Cut Short Petitioners’ Ability

to Present Evidence Challenging the City’s

Justifications for the Law

This case also presents an important procedural question of

First Amendment litigation: whether reviewing courts can

rule in favor of the government—and “finally” uphold a law

regulating expression—without allowing completion of the

trial. This issue is acute in a case like this, where the IIlinois

reviewing courts refused to allow the challenger to complete

its evidentiary attack on the government’s prima facie

justification (taking those courts’ rulings to be, in effect, a

22

finding that the City made out a prima facie case for the

ordinance).

The trial court in this case granted Pooh Bah’s motion for a

directed finding before Pooh Bah completed presenting its

case. The directed finding order was “subject to reservations

by all parties of their respective rights to present additional

evidence if these motions are not finally dispositive.” (App.

126.) Reversing the trial court’s conclusion on an incomplete

record, the Illinois reviewing courts upheld the constitu-

tionality of the challenged ordinance without allowing Pooh

Bah a full opportunity to rebut the City’s evidence. (App.

63.) At the very least, Pooh Bah should have been able to

finish presenting its evidence before the fact-related issues

were “finally” decided against it.

In Alameda Books, the Court remanded the case for a tnal

for the City to prove the adverse secondary effects that it

asserted. Justice Kennedy, concurring in the judgment,

concluded by noting that if the City’s “assumptions can be

proved unsound at trial, then the ordinance might not with-

stand intermediate scrutiny.” 535 U.S. at 453. Here, how-

ever, thescourt below cut off petitioner’s right to present

additional evidence and simply decreed that “the constitu-

tionality of the ordinance is no longer subject to dispute.”

(App. 63.)

Given its unfinished evidentiary record, this case presents a

far more onerous judicial treatment of First Amendment

rights than this Court has previously confronted in dealing —

with issues concerning adult entertainment. May an appellate

court uphold a regulation of the amount of covering worn by

dancers when a trial court finds that there is no evidence

whatsoever of any harms and without remanding for com-

pletion of the trial? Im Alameda Books, the plurality opinion

stressed that the secondary effects doctrine does not mean

“that a municipality can get away with shoddy data or

reasoning. The municipality’s evidence must fairly support

23

the municipality’s rationale for its ordinance.” Jd. at 438-39.

But if challengers cannot present their rebuttal of a munic-

ipality’s evidence, then municipal regulation will win by

default even if its justification is shoddy or presumptive.

In addition to the First Amendment problem set forth in

Alameda Books, the denial of Pooh Bah’s right to present its

remaining evidence on the secondary effects issues raises a

serious due process question under the Fourteenth Amend-

ment. As this Court has made clear, such due process

questions raised in First Amendment cases “assume an impor-

tance fully as great as the validity of the substantive rule of

law to be applied.” Speiser v. Randall, 357 U.S. 513, 520

(1958). See Hudson v. Chicago Teachers Union Local No. 1,

475 U.S. 292, 303 n.12 (1986) (“[P]rocedural safeguards

often have a special bite in the First Amendment context.”)

(quoting G. Gunther, CASES AND MATERIALS ON CONSTITU-

TIONAL LAW 1373 (10th ed. 1980)). Accordingly, this Court

should grant review of this important question.

C. Lower Courts Are Divided on the Nature and

Extent of Proof Necessary to Support Local

Regulation of Sexualiy Oriented Businesses

This case presents an issue of national importance because

cities across the country have laws regulating adult enter-

tainment establishments. As a consequence, review would

provide essential guidance and clarification as to the type of

regulations that are permissible and the amount of evidence

required to sustain them. Such guidance is needed because a

significant split in the lower courts has developed on exactly

these issues.

Some lower courts have invalidated adult entertainment

regulations when there is no evidence to support them. For

instance in Flanigan’s Enterprises, Inc. v. Fulton County,

Georgia, 242 F.3d 976, 985 (11th Cir. 2001), the court noted

that there must be “some factual basis for the claim that

24

[adult] entertainment in establishments serving alcoholic

beverages results in increased criminal activity.” (quoting

Grand Faloon Tavern, Inc. v. Wicker, 670 F.2d 943 (1 1th Cir.

1982)). The court invalidated the local ordinance and con-

cluded: “Defendants may not ban nude dancing in establish-

ments licensed to sell liquor without any factual basis to

support the claim that these establishments are connected

with negative secondary effects.” 242 F.3d at 987.

The Eleventh Circuit’s approach as articulated in Flani-

gan’s Enterprises is directly in conflict with that of the

Seventh Circuit in Ben’s Bar, which was the principal

authority upon which the Supreme Court of Illinois relied.

(App. 22-48.) See Ben’s Bar, 316 F.3d at 726. The Eleventh

Circuit struck down a regulation of nudity in an adult

entertainment establishment because of the lack of evidence

of harmful secondary effects, Flanigan’s Enterprises, Inc.,

242 F.3d at 985-87, while the Seventh Circuit upheld such a

regulation despite the absence of any evidence of harmful

secondary effects emanating from erotic dancing. Ben’s Bar,

316 F.3d at 726. The Illinois Supreme Court wholly em-

braced the Seventh Circuit’s analysis. (App. 30.)

Contrary to the decision below, other courts have invali-

dated ordinances because of the lack of proof of harmful

secondary effects. The Fifth Circuit recently overturned a

district court’s ruling upholding a regulation of alcohol

service at an erotic dancing club and stressed that “there

simply is no evidence, and the State has not met the minimal

evidentiary burden placed upon it.” ///usions-Dallas Private

Club, Inc. v. Steen, 482 F.3d at 313 (emphasis in original). In

another case, the Fifth Circuit similarly invalidated a zoning

ordinance regulating adult entertainment and concluded

“[b]ecause there is no such evidence in the record, we must

strike down the zoning provision of the Ordinance.” Encore

Videos, Inc. v. City of San Antonio, 330 F.3d 288, 295 (Sth

Cir. 2003).

25

In sharp contrast, other courts, like the Seventh Circuit in

Ben’s Bar and Illinois appellate courts in this case, have

upheld ordinances regulating adult entertainment without

requiring proof of harmful secondary effects. See, e.g.,

Heideman v. South Salt Lake City, 348 F.3d 1182 (10th Cir.

2003); Restaurant Ventures, LLC v. Lexington-Fayette Urban

County Government, 60 S.W.3d 572 (Ky. 2001).

Even within some reviewing courts, there have been

marked inconsistencies between panels as to the required

evidentiary burdens. The Seventh Circuit, which guided the

Illinois courts’ decision below, is a prime example. In R.V.S.,

L.L.C. v City of Rockford, 361 F.3d 402 the court invalidated

Rockford’s adult zoning ordinance for lack of justifying

evidence and noted that the regulation of exotic dancers

“targets speech itself.” Jd. at 414. In contrast, in Ben’s Bar,

316 F.3d 702, the Seventh Circuit upheld an hours of

operation ordinance on the bare presumption that there would

be adverse secondary effects where exotic dancing and

alcohol are combined. Jd. at 725-726. The starkly in-

consistent treatment of the evidentiary burdens in such

cases, even within the same circuit, cries out for this Court’s

guidance.

26

CONCLUSION

This Court should grant review to clarify these First and

Fourteenth Amendment issues that constantly recur through-

out the country and that have produced significant splits of

judicial opinion. For the foregoing reasons, Petitioners

respectfully request that this Court grant review of this case.

Respectfully submitted,

MICHAEL A. ABRAMSON ROBERT CORN-REVERE

ARNSTEIN & LEHR LLP Counsel of Record

120 South Riverside Plaza DAVIS WRIGHT TREMAINE LLP

Suite 1200 1919 Pennsylvania Avenue, N.W.

Chicago, Illinois 60606 Washington D.C. 20006

(312) 876-7155 (202) 973-4225

sy DAVID A. EPSTEIN

DAVID A. EPSTEIN, LTD.

30 North LaSalle Street

Suite 2900

Chicago Illinois 60602

(312) 553-1479

Counsel for Petitioners