Opposition Brief — J.L. Spoons, Inc. v. Guzman (No. 08-1144)

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No. 08-1144 eo

Jn the Supreme Court of the Anited States

J.L. SPOONS, Inc.,

Petitioner,

Vv.

HENRY GUZMAN, DIRECTOR,

OHIO DEPARTMENT OF PUBLIC SAFETY, et al.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

RICHARD CORDRAY

Ohio Attorney General

BENJAMIN C. MIZER*

Solicitor General

*Counsel of Record

STEPHEN P. CARNEY

Deputy Solicitor

ELISE PORTER

Assistant Solicitor

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

benjamin.mizer

@ohioattorneygeneral.gov

Counsel for Respondents

QUESTION PRESENTED

Do Ohio Liquor Rule 52’s restrictions on nudity and

sexual contact at liquor-serving estabhshments

survive an overbreadth challenge because they do

not reach a substantial amount of protected speech

in relation to their plainly legitimate sweep?

TABLE OF CONTENTS

Page

QUESTION PRR rie a ree tee ksoedinvvecerssces i

TABLE OF COORG Tiare cette tees ed ssnecicsess ss 00-0. il

TABLE OF AU THIGH pit ckeccstssseseserenscson000000s... iv

INTRODU CTR xcs eens eeveseacsssss.s.. 1

STATEMENT OF THE CASE .....................ccceseeeeees 4

A. The Ohio Liquor Commission promulgated

Rule 52 to help control the secondary

effects of nudity and sexual activity in

liquor-serving establishments .....................005. 4

B. The district court invalidated Rule 52 as

unconstitutionally overbroad under the

First Amendment, but the Sixth Circuit

TOVOTBOG occiccnccis aie asias sakes senesses. ri

REASONS FOR DENYING THE WRIT ................. 8

A. No division of authority exists among or

within the circuits, because the alleged

conflict cases involve laws broader than

Ohio's narrowly focused Rule 52...................... 9

1. The alleged circuit split is illusory........ soe

2. The alleged intra-circuit dispute is also

illusory and would not warrant review if

At @mESCE CE oie dhe thn hpstin esses. 13

CONCLUSION

ill

Review is not needed to apply overbreadth

doctrine to laws upheld against different

challenges in Barnes and City of Erie ...........

The Court should not grant certiorari to

“revive” Spoons’s as-anplied challenge for

remand, because that challenge remains

alive—even if doomed by E£rie—in the

district court

COREE REE EEE HEHEHE EEE EHH HEHE HEHEHE HERE REE EES

SOR O ee EEEEEEHEHEHEHEHEHHEHEHHEHEEEEEHHREHH HH REE ETE EE DHE EES

TABLE OF AUTHORITIES

Cases Page(s)

Barnes v. Glen Theatre,

ee ye I eevee ci snsesvkeansecssciuexesasacs passim

Blau v. Fort Thomas Pub. Sch. Dist.,

BOL FG SB Cte Car. DOUG) on. cn ccnceccssvescorccscceceae 17

Brazos Valley Coal. for Life, Inc. v. City of Bryan

Texas,

BOT Fe OS CT CT BOD cence cats cevassnsccesecsssses 17

City of Erie v. Pap’s A.M.,

oo BU RR ga Bi St) ) passim

Conchatta v. Miller,

466 F.3d 268 (3d Cir. 2006) ........cccccccecccccecccs 11. 16

Connection Distrib. v. Holder,

SO? F.G Slk (GU Cit. FOOD) .occcicccccccccsccsscsss 17, 19

Faustin v. City and County of Denver,

O29 FOG LIGZ (IOC Cab, BOG vcccecericccsccvervesce 16

Fla. Ass’n of Prof Lobbyists Inc. v. Div. of

Legislative Info. Servs.,

526 F.3d 1073 (11th Cir. 2008)................000....00. 16

Gibson v. Mayor & Council of Wilmington,

Eee Hee 0 Ge SAE, DIED vive se vessacoesesssven serves 19

Giovani Carandola, Ltd. v. Bason,

303 F.3d 507 (4th Cir. 2002)

(Carandola I)

Giovani Carandola, Ltd. v. Fox,

470 F.3d 1074 (4th Cir. 2006)

Oe moo cane tasnntanecesoaaeen 12,13

Hamilton’s Bogarts v. Michigan,

BOE Fk CEG COED Cir, BOT) aswivcoicscciciccvenessnsssses 15

Initiative and Referendum Inst. v. United states

Postal Seruv.,

GIF © ee LR GE .. Cae, BO ins vnc csissnccs vaccines 17

J&B Entm', Inc. v. City of Jackson,

DGD Fe OO CORD CAF. FD vi vvcic cise creccessccemensees 13

J.L. Spoons, Inc. v. Morckel,

2007 U.S. Dist. Lexis 74 (N.D. Ohio 2007) .......... 7

J.L. Spoons, Inc. v. Morckel,

ee es Bee FN ois vais ccccantsinvsntranmrasautenenneeeecns 4

McConnell v. FEC,

SE et I ND ce. c, csc cxcevucd Uaca vaukeuctenseusteoundens 16

Odle v. Decatur County, Tenn.,

SIT Fe BOS CGE Ui. BRD anes ve vceiscsacveninys 14, 15

Phelps-Roper v. Strickland,

590 F.0d S56 (6th Cir. ZOOG) .........ccsciccccssosesescoes 17

Preminger v. Sec'y of Veterans’ Admin.,

517 F.3d 1299 (Ped. Cir. 2008) ......0......ccccccsccvene. 16

Schultz v. City of Cumberland,

DO Fe Ba CIO Ci, BOD ois cnvsvcdcccconscnscidcccases 13

Spoons, Inc. v. Dragant,

PR I ge a prccn oddsu'snesunxuavcuninsonpeasunesco erent

Triplett Grille v. City of Akron,

Pe Oe | 14

United States v. Calimlim,

538 F.3d 706 (7th Cir. 2008), cert. denied,

er soy svviiesosvanionsevsarsnarscoveres 16

United States v. Hammoud,

ee re CBRE CEE, ZOO) oaovccccccrccssorcccrsessceses 17

United States v. Nenninger,

BE te Oe COED GARE. BOG) veces ccavsessccccccveces seven 17

United States v. Scrales,

546 F.3d 965 (9th Cir. 2008), cert. denied.

ee | we A ee ye 16

United States v. Williams,

Oe Pe ee WEE CED vse ncosconcacsecsededsseceseesvevvceses 16

Virginia v. Hicks,

sb Oe CI) xancscacvesecdcsseeccévvevacsees 14, 16, 17

Wash. State Grange v. Wash. State Republican

Party,

tes” Oe CIID, og soins sae nacoVdacsnwsbcacneoeesdeceves 16

Ways v. City of Lincoln,

274 F.3d 614 (8th Cir. 2001)) ................0080. passim

W. Pac. R.R. Corp. v. W. Pac. R.R. Co.,

ee ccd nsc ess tnaversanacnyersuccvsedixesvedeess 13

Statutes and Rules

Ohio Administrative Code 4301:1-1-52......... passim

Vil

Ohio Admin. Code § 4301:1-1-52 (A)(2)(2004)......... 6

Ohio Admin. Code § 4301:1-1-52 (B)(2) & (3)

STRIPE ee se ele ae Sop tee Dey PAE AAAI Ct SPL aR OD 5

CaO TEOV. COG © BOOT UGA) iin ces scecsesccsseseesssavsssves 6

Ohio Rev. Code § 2007.O1(B)...........6:..cccceccoccoveeeseceoes 6

Ohio Rev. Code § 2907.01(C) (2006) ..........c ee. 6

Constitutional Provisions

First Amendment of the United States

EN NUD vn ce uvcsosccnsococeckasesss dare akenea ie eee

Fourteenth Amendment of the United States

a RE ee ea ey MNES et lh Sie aR AD 7

INTRODUCTION

At issue in this case is the type of reasonable

regulation of nude dancing that this Court and

others have repeatedly upheld. Ohio’s Liquor Rule

52 (“Rule 52”) restricts nudity and sexual activity in

hquor-serving establishments. The Sixth Circuit

properly found that Rule 52 is not unconstitutionally

overbroad, thus rejecting a challenge by a group of

strip-club owners led by Petitioner J.L. Spoons, Inc.

(“Spoons”). Spoons now insists that the decision

creates a circuit split and raises other issues worthy

of this Court’s review. Spoons is wrong, however, in

large part because it mischaracterizes the scope of

Rule 52.

Rule 52’s nudity definition tracks virtually

verbatim the anti-nudity provisions upheld in Barnes

uv. Glen Theatre, 501 U.S. 560, 569 (1991), and City of

Erie v. Pap’s A.M., 529 U.S. 277, 284 (2000). And its

definition of restricted sexual activity includes actual

sex as well as “sexual contact,” which includes

“touching of an erogenous zone of another .. . for the

purpose of sexually arousing or gratifying either

person.” Thus, Rule 52 does not prohibit any

touching between two people that might arouse a

third-party observer. Rule 52 restricts so-called “lap

dances” in which a nude dancer touches a customer

to gratify him—which is_ not. protected First

Amendment activity—but it does not restrict a ballet

performance in which one dancer lifts another by the

buttocks, because such “touching of an crogenous

zone” is not “for the purposes of sexually arousing”

either dancer.

Measured by a proper understanding of Rule

a ¢

52’s scope, then, Spoons’s claims of conflict do not

hold up. For example, Spoons claims that the Sixth

Circuit’s decision below conflicts with an Eighth

Circuit decision invalidating a law that prohibited

certain contact “when such contact can reasonably be

construed as being for the purpose of the sexual

arousal or gratification of either party or any

observer.” Ways v. City of Lincoln, 274 F.3d 514, 516

(8th Cir. 2001) (emphasis added). The Eighth

Circuit specifically found the “observer” language to

be the problem “because constitutionally protected

artistic expression may legitimately intend to

titillate or arouse members of the audience.” Jd. at

520. That difference distinguishes this case not only

from Ways, but also from every other case to which

Spoons points. Nor is any purported conflict within

the Sixth Circuit a cause for review.

The Sixth Circuit’s overbreadth analysis here is

fully consistent with this Court’s First Amendment

jurisprudence. As the appeals court correctly held,

the “sexual contact” provision is not overbroad,

because Ohioans may continue to enjoy ballet, ice

skating, and performances of “high culture” works

with sexual content, even in venues that sell

alcoholic beverages. Further, Rule 52 does not affect

full nudity or sexual contact at venues that do not

serve liquor. Thus, the potential for affecting any

protected expression is small, and it comes nowhere

near a substantial amount, measured against the

law’s legitimate sweep—namely, restricting the

nudity and sexual contact that occurs at strip clubs,

not at the ballet.

Moreover, while the Sixth Circuit's general

overbreadth approach is consistent with this Court’s,

the decision below is apparently the only one to

consider overbreadth in the specific context of a law

with Rule 52’s narrow focus. So even if there might

be a need someday to consider how overbreadth

applies to such laws, consideration should await

further percolation in the lower courts.

Finally, Spoons mistakenly insists that review

is needed so that Spoons can obtain, on remand,

review of its as-applied claim. But such review on

remand is already available, because the district

court never reached that issue (nor, consequently,

did the Sixth Circuit).

The Court accordingly should deny the Petition.

STATEMENT OF THE CASE AND FACTS

A. The Ohio Liquor Commission promulgated

Rule 52 to help control the secondary

effects of nudity and sexual activity in

liquor-serving establishments.

The Ohio Liquor Commission promulgated the

latest version of Ohio Administrative Code 4301:1-1-

52, known as “Rule 52,” to combat the undesirable

secondary effects resulting from nudity and sexual

activity at liquor’ establishments. Before

promulgating the current version of the rule, the

Commission first conducted a detatled review and

analysis of studies and cases regarding nudity and

se>.ual activity in places with a liquor license. They

also considered testimonials from individuals with

expertise in the area and experience in strip clubs

and similar businesses. The Commission concluded

that establishments with a liquor permit that also

allow nudity and sexual activity are susceptible to

undesirable secondary effects.

The Commission also conducted a_ public

hearing on the subject of secondary effects as part of

the rule-promulgation process under Ohio law. At

this hearing, the Commissioners heard additional

evidence regarding potentially undesirable secondary

effects of nudity and sexual activity in liquor

establishments. For example, among those testifying

was Bruce A. Taylor, an attorney from Fairfax,

Virginia, with experience in prosecuting vice crimes,

including obscenity, prostitution, and _ liquor

violations. J.L. Spoons, Inc. v. Morckel, 314 F. Supp.

2d 746, 749. Taylor stated that “nude dancing does

contribute to its own type of secondary effects and to

a greater degree than other liquor bars that don’t

have nude dancing.” /d.

Rule 52 generally provides that an

establishment holding a liquor permit may not

knowingly or willfully allow “nudity” or “sexual

activity” on the premises:

no permit holder, his agent, or employee

shall knowingly or willfully allow in and

upon his licensed permit premises any

persons to...

(2) Appear in a state of nudity;

(3) Engage tn sexual activity, as said term

is defined in Chapter 2907 of the Revised

Code.

Ohio Admin. Code § 4301:1-1-52 (B)(2) & (3) (2004).

“Nudity” is defined in section (A)(2), in language

virtually identical to that analyzed by the Court in

Barnes v. Glen Theatre, 501 U.S. 560, 569 (1991),

and City of Erie v. Pap’s A.M., 529 U.S. 277, 284

(2000). In full, the section defines nudity as:

The showing of the human male or female

genital, pubic area or buttocks with less

than a fully opaque covering; the showing

of the female breast with less than a fully

opaque covering of any part of the nipple

an@or areola; the exposure of any device,

costume, or covering which gives the

appearance of or simulates the genitals,

pubic hair, natal cleft, perineum anal

region or pubic hair region; or the exposure

of any device worn as a cover over the

nipples and/or areola of the female breast,

which device simulates and gives the

realistic appearance of the nipples and/or

areola.

Ohio Admin. Code § 4301:1-1-52 (A)(2)(2004). ‘This

nudity definition is identical to the one upheld in

City of Erie, except that it adds the words “and/or

areola.” Thus, Rule 52 bans, in liquor permit

premises, nudity under the definition in Barnes and

City of Erie.

Ohio law defines “sexual activity” as “sexual

conduct or sexual contact, or both.” Ohio Rev. Code

§ 2907.01(C) (2006). “Sexual conduct” is defined as

intercourse or other actual sex acts. Ohio Rev. Code

§ 2907.01(A).

“Sexual contact” is defined as touching certain

body parts for the purpose of sexual arousal or

gratification of one of the individuals engaged in the

touching:

any touching of an erogenous zone of

another, including without limitation the

thigh, genitals, buttock, pubic region, or, if

the person is a female, a breast, for the

purpose of sexually arousing or gratifying

either person.

Ohio Rev. Code § 2907.01(B). Thus, Rule 52 bans, on

liquor permit premises. touching for the purpose of

arousing or gratifying a party to the activity, but

does not prohibit touching for the purpose of the

arousal or gratification of an observer, or for any

other purpose.

[If a permit holder violates Rule 52, possible

penalties include a fine apainst the hquor permit

holder or a_ revocation of the liquor’ permit.

Violations of Rule 52 do not trigger any criminal

penalties.

B. The district court invalidated Rule 52 as

unconstitutionally overbroad under the

First Amendment, but the Sixth Circuit

reversed.

Three days before Rule 52 was:-scheduled to go

into effect, Petitioners J.L. Spoons, Ine., et al.,

owners of “adult” clubs that feature nude or nearly

nude dancers, sought declaratory and injunctive

relief against the rule. Spoons argued that Rule 52

significantly burdens rights under the First and

Fourteenth Amendments of the United States

Constitution, both facially (as impermissibly

overbroad) and as applied to its establishment.

At the hearings before the district court for the

preliminary and permanent injunctions, Ohio offered

testimony about its knowledge and_ experience

dealing with the undesirable secondary effects

associated with nudity and sexual activity at liquor

establishments and _ supporting its’ basis for

promulgating Rule 52.

The District Court granted Spoons’s motion tor

preliminary and permanent injunctions of the nudity

and sexual activity sections of Rule 52 and declared

them unconstitutionally overbroad. See J.L. Spoons,

Inc. v. Morckel, 2007 U.S. Dist. Lexis 74, *2 (N.D.

Ohio 2007). The District Court did not rule on

Spoons’s as-applied challenge.

On appeal, the Sixth Circuit reversed, holding

that Rule 52 is not overbroad. Pet. App. 2. The

Sixth Circuit declined Spoons'’s petition for rehearing

and suggestion of rehearing en banc. Pet. App. at

720.

REASONS FOR DENYING THE WRIT

Spoons presents no issue worthy of review.

Spoons’s claims, both as to the need for review and

the underlying merits of its claims, are based on

misperception of both the Court’s overbreadth

jurisprudence and the narrow focus of Ohio’s Liquor

Rule 52.

First, the asserted conflicts between the circuits

and within the Sixth Circuit do not exist, because the

laws analyzed in the other cases all involve much

broader prohibitions on nudity or sexual activity. As

the Sixth Circuit recognized below, these other laws

are a far cry from the closely-focused Rule 52.

Second, the Sixth Circuit’s overbreadth analysis

tracks the Court’s teachings and does not call for

review. While the Court may not have analyzed the

nudity provisions in Cily of Erie and Barnes under

the overbreadth doctrine, the Court’s’ general

overbreadth jurisprudence provides the courts—

including the Sixth Circuit here— with ample

guidance to evaluate Rule 52 and similar laws.

Moreover, because only the Sixth Circuit has

reviewed a law as narrow as Rule 52, the Court

should await percolation of the issue in similar cases

to see if review is ever warranted.

Finally, Spoons’s request for certiorari to ensure

consideration of its as-applied challenge is

unnecessary. The district court did not resolve the

as-applied challenge, and nothing in the Sixth

Circuit's opinion eliminated it. Vhe challenge

accordingly appears to remain live in the district

court.

A. No division of authority exists among or

within the circuits, because the alleged

conflict cases involve laws broader than

Ohio’s narrowly focused Rule 52.

Spoons asserts that the Sixth Circuit’s decision

here conflicts both with cases from other circuit

courts of appeals and with its own cases. But Spoons

is wrong on both counts.

2. The alleged circuit split is illusory.

Spoons cites a handful of circuit cases that

allegedly show that other circuits invalidate laws

similar to Ohio’s Rule 52. See Pet. at 17-21. But

each of those cases involved much broader laws that

restricted wide swaths of conduct protected by the

First Amendment. Ohio’s Rule 52, by contrast,

narrowly restricts only conduct that gives rise to

adverse secondary effects. The rule therefore has

minimal, if any, effect on legitimate expression, and

the Sixth Circuit’s decision upholding the narrow

provision is consistent with decisions invalidating

much broader laws.

Perhaps the best example of the illusory nature

of the claimed split is Spoons’s reliance on Ways uv.

City of Lincoln, 274 F.3d 514 (8th Cir. 2001), as the

broader nature of the law at issue there—and the

court’s reliance on the language distinguishing it

from Rule 52—are indisputable. See Pet. at 21. Rule

52 defines sexual contact as “touching of an

erogenous zone of another ... for,the purpose of

sexually arousing or gratifying either person.”

(emphasis added.) The ordinance in Ways, by

contrast, defined sexual contact to include both

kissing and touching of various body parts “whether

covered or not... when such contact can reasonably

be construed as being for the purpose of the sexual

arousal or gratification of either party or any

observer.” Id. at 516 (emphasis added).

That last clause, barring contact that gratifies

an observer even where neither touching party is so

gratified, was the source of the problem for the

Eighth Circuit. That court noted, “constitutionally

protected artistic expression may legitimately intend

to titillate or arouse members of the audience.” Jd.

at 520. The court reasoned that audience members

might find all sorts of performance gratifying, such

that the law could reach ballet and ice skating

performances. The law at issue was overbroad

because it reached those forms of communication.

Rule 52’s “sexual contact” definitions, by contrast,

cannot possibly reach such ballet performances,

because the touching that occurs in_ those

performances is not for the “purpose of the sexual

arousal or gratification of either party.” The rule

therefore leaves intact any _ protected artistic

expression intended to titillate or arouse members of

the audience.

The Eighth Circuit in Ways also found

problematic a provision that barred “simulated sex,”

and Ohio’s Rule 52 has no analogous provision. The

Eighth Circuit found that this provision “could have

been enforced to prohibit the type of simulated sex to

be found in productions of Hair” or in any artistic

expression that involves “simulated sex.” In sum,

Ways does not conflict with Spoons.

Nor does the decision below conflict with the

Third Circuit’s decision in Conchatta v. Miller, which

addressed a law banning “lewd, immoral, or

improper entertainment.” 458 F.3d 258, 261 (3d Cir.

2006); see Pet. at 18-19. That law, too, was far

broader than Rule 52. As the Conchatta Court

stated, the Pennsylvania law “has not been limited to

proscribe only entertainment” that involves a narrow

range of non-protected exposure or touching. Jd. at

266. Thus, Conchatta cannot be considered “in

conflict” with this case, because Rule 52 has been

limited to proscribe only nudity as defined in City of

Erie and Barnes and only activity that involves an

actual sex act or sexual touching that gratifies one of

the parties to the contact.

Spoons is equally mistaken in asserting a

conflict between the decision below and the Fourth

Circuit’s decision in Glovani Carandola, Ltd. v.

Bason, 303 F.3d 507 (4th Cir. 2002) (Carandola J).

See Pet. at 19-20. The North Carolina law at issue

there was not only broader than Rule 52, but was

even broader in its sweep than the laws in Conchatta

and Ways. The Carandola I law prohibited, without

limitation, “any entertainment that includes or

simulates sexual intercourse or any other sexual

act,’ and “the touching, caressing or fondling of

[various body parts].” Jd. at 510. The court found

that the broad limits on “touching” certain body

parts, with no definitional restriction to touching for

the gratification of anyone, performer or observer,

left vulnerable “a ballet in which one dancer touches

another’s buttock during a lift.” /d. at 516. The law

in Carandola I also barred both “simulated sex” and

“simulated nudity” under definitions that easily

covered wide ranges of legitimate artistic endeavor.

Notably, North Carolina later amended the law

invalidated in Carandola I, and the updated law was

upheld by the Fourth Circuit, showing agreement

between the Fourth and Sixth Circuits that a

properly focused law in this area is not overbroad.

See Giovani Carandola, Ltd. v. Fox; 470 F.3d 1074

(4th Cir. 2006) (Carandola IJ). In Carandola IT, the

Fourth Circuit noted that the “sexual contact”

definition no longer covered “touching, caressing, or

fondling,” but was limited to “fondling,” which the

court read to “only bar[] a performer from actually

manipulating specified erogenous zones.” Id. at 1083

(internal quotation omitted). The court also noted

that the amended law exempted performances in

specified venues, such as “theaters, concert halls, art

centers, museums, or similar establishments,” when

the performances presented in such venues are

“expressing matters of serious literary, artistic,

scientific, or political value.” /d. at 1084.

While Ohio’s Rule 52 does not express its limits

in the same venue-based and artistic-value way that

North Carolina uses, Ohio’s restriction of the sexual-

contact definition to touching “for the sexual arousal

or gratification of either person” serves much the

same function. After all, a ballet dancer does not

seek to sexually arouse the other dancers he or she

lifts, and so on. Thus, the Sixth Circuit’s upholding

of Rule 52 is consistent with the Fourth Cuircuit’s

invalidation of the broader law in Carandola I, and

with its later validation of the narrower law in

Carandola I].

Finally, Spoons is mistaken in claiming that the

decision below “cannot be harmonized” with cases

that upheld similar ordinances against overbreadth

challenges on the ground that those ordinances

“confined [their] reach to adult entertainment

establishments.” See Pet. at 21, n. 8 (citing Schultz

v. City of Cumberland, 228 F.3d 831 (7th Cir. 2000);

J&B Entm't, Inc. v. City of Jackson, 152 F.3d 362

(5th Cir. 1998); Carandola JI, 470 F.3d at 1079).

‘True, those cases said that such limits prevented

overbreadth problems, but those cases never said

that such a lhmit was the only way to prevent

overbreadth. ‘Therefore no conflict arises. And as

noted above, the other limits in Rule 52 essentially

serve the same function, so Rule 52 does not restrict

ballets or other performances based on contact

between performers that does not sexually arouse or

gratify the performers.

In sum, Spoons fails to show a real conflict

between the decision below and any decision from

another circuit.

2. The alleged intra-circuit dispute is

also illusory and would not warrant

review if it existed.

Spoons also argues that review is needed to

correct conflicts within the Sixth Cuircuit’s own

precedent, but that claim lacks merit for several

reasons. First, this Court has never indicated that

conflict within a circuit justifies a grant of certiorari.

Rather, resolution of conflict within a circuit “is the

dominant concern” of the en banc process. W. Pac.

R.R. Corp. v. W. Pac. R.R. Co., 345 U.S. 247, 270

(1953) (Frankfurter, J., concurring). Spoons sought

en banc review, but the Sixth Circuit declined. This

Court need not second-guess the Circuit's

assessment of the alleged intra-circuit conflict.

Second, even if an intra-circuit split were

worthy of this Court’s attention, the alleged split

here is illusory. As with the alleged circuit split, the

cited Sixth Circuit cases deal with laws that broadly

prohibited nudity and sexual conduct, in contrast to

Rule 52’s narrowly focused regulations.

For example, in Triplett Grille v. City of Akron,

40 F.8d 129 (6th Cir. 1994), the ordinance at issue

prohibited all nudity “in a public place,” not just at

liquor-serving establishments. Id. at 131 n.2.

Equally important, the 7Jriplett Grille court found

that the ordinance at issue made “no attempt to

regulate only those expressive activities associated

with harmful secondary effects and includes no

limiting provisions.” /d. at 136. Indeed, the

ordinance was admittedly enacted because of moral

outrage, rather than to control secondary effects.

Furthermore, Triplett Grille, like Ways and

Carandola I, is analytically distinct because the

panel there addressed overbreadth before Virginia uv.

Hicks, 539 U.S. 113 (2003). The court below also

distinguished Triplett Grille based on its reliance on

the concurrence by Justice Souter in Barnes, since

placed in question by City of #rie. Spoons, 538 F.3d

at 385-86.

The other cited Sixth Circuit cases are similarly

distinguishable. The law at issue in Odle v. Decatur

County, Tenn., 421 F.3d 386 (6th Cir. 2005)

prohibited not only nudity, but also “the performance

of a wide range of arguably sexually suggestive acts,”

421 F.3d at 392, including “simulated acts of sexual

intercourse, masturbation, sodomy, bestiality, oral

copulation, flagellation, or [other] sexual acts,” id. at

394 (emphasis added). By contrast, Rule 52 does not

prohibit simulated acts. And Hamilton’s Bogarts v.

Michigan, 501 F.3d 644 (6th Cir. 2007), like Odle,

addressed a law banning simulated sexual acts.

Spoons, 538 F.3d at 386; Hamilton’s Bogarts, 501

F.3d at 648-49. Hamilton’s Bogarts offered only dicta

on overbreadth, indicating that the overbreadth

claim “appear[ed] to” be strong. /d. at 654.

In short, Spoons has not shown a genuine

conflict among the circuits or within the Sixth

Circuit with respect to a narrowly focused law

similar to Rule 52. ‘The Court should not grant

certiorari on the grounds of inter- or intra-circuit

conflict.

B. Review is not needed to apply overbreadth

doctrine to laws upheld against different

challenges in Barnes and City of Erie.

All agree that Rule 52 copied, nearly verbatim,

the nudity definitions from the ordinances upheld

against as-applied challenges in Barnes and City of

Erie. And all agree that those as-applied decisions

do not preclude Spoons or any other party from

attacking Rule 52 or similar nudity restrictions

under the alternate theory of an overbreadth claim.

Spoons accordingly urges the Court to grant its

Petition to complement Barnes and City of Erie by

applying overbreadth to such laws. But no such

complementary assessment is needed— not because

Barnes and City of Erie have answered the question

(they did not), but because the Court’s general

overbreadth law provides ample guidance. And even

if it did not, this case does not justify a new look.

This Court recently clarified when a law’s

overbreadth is substantial enough to warrant facial

invalidity. In Virginia v. Hicks, 539 U.S. 113, 122

(2003), the Court reiterated that the overbreadth

claimant bears the burden of demonstrating that the

law, taken as a whole, is substantially overbroad,

judged in relation to its plainly legitimate sweep.

Other recent cases provide guidance for applying the

same overbreadth rule in various contexts. United

States v. Williams, 128 S. Ct. 1830 (2008) (statute

criminalizing sale of child pornography not

overbroad); Wash. State Grange v. Wash. State

Republican Party, 128 S. Ct. 1184, 1195 (2008)

(ballot language law not overbroad); McConnell v.

FEC, 540 U.S. 93, 206 (2003) (campaign finance law

not facially overbroad).

The circuits have recognized the importance of

Hicks and other recent cases and have, for the most

part, correctly navigated the overbreadth doctrine in

analyzing a wide range of laws and fact situations.

See, e.g., United States v. Schales, 546 F.3d 965 (9th

Cir. 2008) (federal laws regarding child exploitation

and pornography not overbroad), cert. denied, 129 S.

Ct. 1397 (Feb. 23, 2009); United States v. Calimlim,

538 F.3d 706, 713 (7th Cir. 2008) (forced labor law

not overbroad), cert. denied, 129 S. Ct. 935 (2009);

Fla. Ass’n of Profil Lobbyists Inc. v. Div. of Legislative

Info. Serus., 525 F.3d 1073, 1079 (11th Cir. 2008)

(lorida lobbying law not overbroad); Preminger uv.

Sec’y of Veterans’ Admin., 517 F.8d 1299, 1318 (Fed.

Cir. 2008) (law prohibiting demonstrations on VA

property not overbroad); Conchatta, 458 F.3d 258 (3d

Cir.); austin v. City and County of Denver, 423 F.3d

1192 (10th Cir, 2005) (Denver ordinance prohibiting

signs on highway overpasses not overbroad); Brazos

Valley Coal. for Life, Inc. v. City of Bryan Texas, 421

F.3d 314 (5th Cir. 2005) (Texas city sign ordinance

not overbroad); /nitiative and Referendum Inst. v.

United States Postal Serv., 417 F.3d 1299 (D.C. Cir.

2005) (regulation preventing speech activities

outside post office overbroad); United States ov.

Hammoud, 381 F.3d 316 (4th Cir. 2004) (federal law

prohibiting material support to terrorists not

overbroad); United States v. Nenninger, 351 F.3d 340

(Sth Cir. 2003) (National Forest Service permit

requirement not overbroad),

For its part, the Sixth Circuit has faithfully and

properly applied the overbreadth doctrine in several

recent decisions, including the decision helow. See,

e.g., Connection Distrib. v. Holder, 557 F.3d 321 (6th

Cir. 2009) (en banc) (Child Protection and Obscenity

Enforcement Act is not overbroad), petition for cert.

pending, No. 08-1449 (filed May 20, 2009); Phelps-

Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008)

(Ohio funeral-procession law not overbroad, citing

Hicks); Blau v. Fort Thomas Pub. Sch. Dist., 401

F.3d 381, 393 (6th Cir. 2005) (Kentucky school dress

code not overbroad, citing Hicks). In this case, the

Sixth Circuit specifically analyzed both the anti-

nudity and the sexual conduct provisions of Rule 52

under Hicks. The court correctly recognized that the

sexual conduct provision of Rule 52 is not overbroad

because it has no application in “high culture”

venues, as the prohibited touching “does not apply to

contact done in furtherance of legitimate works of art

for the purpose of conveying artistic meaning.” Pet.

App. at 10. And the court further found that the

hypothetical “high culture” applications of Rule 52’s

anti-nudity provision do not constitute substantial

overbreadth. dd.

The Sixth Circuit’s overbreadth analysis was

also correct—and Spoons and the dissent below are

wrong—in assessing the number of non-“adult” Ohio

venues that Rule 52 could affect. The dissenting

judge and Spoons” speculate, without concrete

evidence, that 12,000-12,300 non-adult venues in

Ohio would be “subject to” or “affected by” Rule 52.

Pet. App. at 16-17 (Cole, J., dissenting); Pet. at 2,

10-11. Including in this estimated number, however,

are countless venues—Progressive Field (née Jacobs

Field). the Beachland Ballroom, and the Great Lakes

Science Center, to name just three—that are

unlikely, to say the least, to present live

performances featuring nudity. See Pet. at 10-11;

Pet. App. at 17. Instead, the real number of “high

culture” venues in Ohio that might present live

performances involving nudity is likely a_ tiny

fraction of Spoons’s asserted number. !

More to the point, Spoons and the dissent

consider the wrong variable in the overbreadth

analysis. Under the substantiality requirement, the

relevant consideration is the universe of the law's

applications, not of venues. In other words, courts

must “compar[e] the number of valid applications to

the likelihood and frequency of impermissible

applications,” Gibson v. Mayor & Council of

Wilmington, 355 F.3d 215, 228 (3d Cir. 2004). As the

Sixth Circuit itself recently noted, “{s]ubstantial

overbreadth involves not just an inquiry into the

! Spoons also exaggerates, without support, the application of a

prior version of Rule 52 to high culture. The Commission's

executive director testified that he “underst{ood] that there was

a citation against the production O! Calcutta back in the 1980s

sometime,” Pet. at 11, but he apparently had no _ personal

knowledge of this citation.

legitimate and illegitimate sweep of a statute; it also

involves an inquiry into the ‘absolute’ nature of a

law’s suppression of speech.” Connection Distrib.

Co., 557 F.3d at 340. In other words, a court should

not look to venues where a certain type of speech

might occur, but to the absolute amount of speech

that is in danger of being suppressed.

Here, the permissible applications of Rule 52’s

anti-nudity provision overwhelm any _ arguably

impermissible applications. The denominator here is

large: Adult establishments feature nude

performances on virtually every night of the year.

The numerator, by contrast, is small: High-culture

venues might host performances that contain

nudity—such as the play Equus—for a week or two

every five or ten years. These hypothetically

impermissible applications of Rule 52 are too few and

far between to constitute substantial overbreadth.

Any “high culture” disputes under Rule 52, if they

ever arise, should be resolved through concrete, as-

apphed challenges.

In short, the Sixth Circuit correctly analyzed

both of Rule 52’s provisions under the Court’s

jurisprudence, and the circuits have sufficient

guidance from the Court on overbreadth analysis in

a wide variety of contexts. The Court need not take

this case simply because it did not analyze the anti-

nudity laws in City of Erie and Barnes under the

overbreadth doctrine.

Moreover, the Court should refrain from review

of Rule 52’s sexual conduct provision under the

overbreadth doctrine until the lower courts have had

more time to analyze similar laws. No other law

analyzed by any of the circuits has the same limiting

provisions as Rule 52, that is, a law that prohibits

sexual contact only when conducted for’ the

gratification of parties to the contact, as opposed to

an observer. The uniqueness of Rule 52’s sexual

conduct provision would make this a case of first

impression, and the Court should therefore refrain

from review at this time.

C. The Court should not grant certiorari to

“revive” Spoons’s as-applied challenge for

remand, because that challenge remains

alive—even if doomed by Erie—in the

district court.

Spoons curiously insists that the Court needs to

grant review so that it may revive its alternate as-

applied challenge, whether in this Court or on

remand in the district court. But that challenge

seems to be alive and well, and Spoons points to no

evidence that the Sixth Circuit cut it off.

Although the Sixth Circuit did not expressly

include remand language noting the issue, no such

express reservation was required. The district court

enjoined Rule 52 based solely on the overbreadth

challenge. Pet. App. at 53. As a result, the Sixth

Circuit had before it only the overbreadth claim, on

which it reversed. Such an unadorned reversal, with

no comment either way as to the remaining,

unadjudicated claims, by its nature returns the case

to the district court to resume where it left off. Put

another way. the Sixth Circuit did not instruct the

district court to enter judgment for Ohio; it simply

reversed an injunction.

Consequently, the as-applied claim is alive, if

Spoons wishes to revive it. ‘To be sure, it may be

uphill sledding, in light of City of Erie and Ohio’s use

of near-identical language. But procedurally, Spoons

is free to try, and that is enough to rule this item out

as a basis for this Court’s review.