AMERICAN ENTERTAINERS, L.L.C. v. CITY OF ROCKY MOUNT, NORTH CAROLINA
US Court of Appeals for the Fourth Circuit, Wynn, April 27, 2018,
1st Amendment – Prior Restraint – A licensing regulation is an unconstitutional prior restraint where it depends on a chief of police determining whether a sexually-oriented businesses will comply with “all applicable laws” without specifying what it means.
(Concur – Thacker – “erotic touching,” like “fondling,” has a sexual connotation that is plainly not present in mainstream artistic performances.)
Facts:
Rocky Mount, North Carolina requires that “sexually oriented businesses” obtain a license prior to operation. This license requires certification by the Police Commissioner that the “sexually oriented business” will follow “all applicable laws,” but does not explain what those “applicable laws” are.
An “exotic dancing venue” in Rocky Mount, American Entertainers (AE), challenged the law. AE argued that the law was unconstitutional in that it gave “unbridled discretion” to a government official to deny license applications. AE also argued that it was unconstitutional under the 1st Amendment in that it was overly broad and that it violated free speech by not allowing 18-21 year-olds to own strip clubs.
The district court rejected these arguments and AE appealed.
Held: The Fourth Circuit found that the statute was unconstitutional in failing to give the police commissioner guidelines with regard to when to grant or deny a license. It refused, however, to find a 1st Amendment right for an 18-year-old to own a strip club.
1st Amendment- Overbreadth – A statute implicates the 1st Amendment when it is drawn so broadly that it deters otherwise protected free speech
1st Amendment – Overbreadth – A statute is only invalidated for being overly broad when it would reach a “substantial number of impermissible applications.” Otherwise, it is just limited.
1st Amendment – Overbreadth – In deciding whether a statute is “overly” broad, the court will look at why it was adopted. If it was adopted for a purpose other than suppressing free expression, then the court will look at the statute with an intermediate level of scrutiny.
1st Amdendment – Overbreadth – A statute will be upheld even if it has the potential to burden speech if “it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.”
From the Case: Rocky Mount “has a substantial interest in regulating exotic dancing because such entertainment has a long history of spawning deleterious effects” such as evidence considered by the city that “lower property values and increased crime rates” are brought about by sexually oriented businesses. Moreover, this was only a licensing regulation and does not completely outlaw the conduct. “In particular, the Ordinance subjects sexually oriented businesses to a licensing fee to make such businesses carry their share of financing the administrative and enforcement activities associated with minimizing and ameliorating the deleterious secondary effects flowing from sexually oriented businesses.”
From the Case: Given that (1) the licensing requirement materially advances a substantial governmental interest and (2) American Entertainers identifies no burden imposed by the licensing requirement, we conclude that the licensing requirement is narrowly tailored to
serve Rocky Mount’s legitimate interest and therefore reject American Entertainers’ overbreadth challenge
1st Amendment – Prior Restraint – Licensing schemes that preclude 1st Amendment expression until certain requirements are met are prior restraints
1st Amendment – Licensing – There are “two evils that will not be tolerated” in licensing schemes: (1) placing “unbridled discretion in the hands of a government official or agency,” thus potentially resulting in censorship, and (2) failing to place limits on the time within which the decision maker must issue the license.
1st Amendment – Licensing – A licensing scheme confers too much discretion on a governmental decisionmaker when it allows the decisionmaker to deny an application based solely on the decisionmaker’s “own ideas of ‘public welfare, peace, safety, health, decency, good order, morals or convenience.’”
From the Case: Rocky Mount argues that the police chief’s licensing determinations are objective ones, drawn exclusively from an applicant’s business proposal and the letter of the law. However, this overlooks the plain language of the license-denial provision at issue, which by its terms extends the police chief’s inquiry to the entire body of municipal, state, federal, and common law.”
From the Case: “The relevant license-denial provision sweeps too broadly by requiring the police chief to choose on a case-by-case basis which particular laws to consider in evaluating applications. And even if the police chief somehow each time considered every law across all relevant jurisdictions, the sophisticated analysis inherent in various laws’ application would require the police chief to exercise a constitutionally impermissible amount of discretion in evaluating applications.” The provision therefore violates the constitution by rendering the police chief’s evaluation neither “narrow, nor objective, nor definite,” and cannot overcome the “heavy presumption against its constitutional validity.”
1st Amendment – Laws that infringe on someone’s right to free expression will generally be subject to strict scrutiny by the courts requiring compelling government interests and narrowly tailored laws.
1st Amendment – There is no “expressive” first-amendment protection in owning a strip club. Compare this with “seeking to display, perform, or patronize a particular art performance or piece” where there is an expressive element.
From the Case: “We decline to recognize a First Amendment right for eighteen- to twenty-one year olds to own an adult business. Instead, the Ordinance’s age-restriction provision warrants rational-basis review. Applying that standard, we conclude that the Ordinance’s age restriction is rationally related to Rocky Mount’s interest in ensuring that sexually-oriented-business owners are of legal drinking age, given alcohol’s availability at most such venues.”