In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-4126 & 98-4209
Joseph Schultz, doing business as Island Bar,
and Tonya Norwood,
Plaintiffs-Appellees/Cross-Appellants,
v.
City of Cumberland,
Defendant-Appellant/Cross-Appellee.
Appeals from the United States District Court
for the Western District of Wisconsin.
No. 98 C 107--Barbara B. Crabb, Judge.
Argued September 9, 1999--Decided September 26, 2000
Before Coffey, Kanne and Evans, Circuit Judges.
Kanne, Circuit Judge. The City of Cumberland had
sought for years to close the Island Bar, a strip
club within the small Wisconsin town, when it
enacted a municipal ordinance regulating
"sexually oriented businesses." The ordinance
imposed comprehensive regulations on the
operation of adult-entertainment establishments
in Cumberland. In response, Joseph Schultz, the
Island Bar's owner, and Tonya Norwood, an Island
Bar exotic dancer, sued in district court
challenging the ordinance's constitutionality
under the First Amendment. We uphold the portions
of the ordinance that serve as reasonable time,
place or manner restrictions and strike the
portions of the ordinance that ban sexually
explicit dance movements and disqualify certain
persons from holding adult-entertainment
licenses.
I. History
In Cumberland, Wisconsin, the Island Bar is the
lone sexually oriented business located in the
small town of 2,200 residents. The Island Bar
opened in 1993 and quickly attracted notoriety
when Schultz converted the bar into a strip club
featuring nude female dancers, including co-
plaintiff Norwood. After assiduous undercover
investigation by Barron County law enforcement,
Cumberland authorities discovered prostitution
and sexual contact between nude dancers and bar
patrons, and revoked the Island Bar's liquor
license on October 12, 1994. The Island Bar later
reopened as a non-alcoholic bar, still featuring
nude female dancing, but two convictions of
Island Bar patrons for prostitution in March 1997
led to its closing for one year under Wis. Stat.
sec. 823.13 as a public nuisance. See State v.
Schultz, 582 N.W.2d 113 (Wis. Ct. App. 1998).
Unsatisfied with the one-year closure, the
Cumberland city council established a municipal
planning subcommittee dedicated to exploring more
restrictive methods of regulating nude dancing.
Happy to offer assistance were conservative
interest groups devoted to fighting "sexually
oriented businesses" (wittily abbreviated as
"SOBs"). For example, the National Family Legal
Foundation ("NFLF") provided a comprehensive
handbook entitled Protecting Communities From
Sexually Oriented Businesses. The handbook
explains that it "is not meant to be a neutral
overview of current methods of regulating 'adult'
businesses. This is a 'how-to' manual for those
who are serious about protecting their
communities and doing battle with the incredibly
powerful and profitable sex club industry."
Copying virtually verbatim the NFLF's model
regulation, Cumberland received comments on its
new draft ordinance from the NFLF and Morality in
Media, Inc., among others.
Following the NFLF's instructions on "Making the
Legislative Record," Cumberland set about
constructing legislative findings to support the
NFLF ordinance in their community. The Cumberland
committee in charge of drafting the ordinance
divided research duties among its members. Mayor
Lawrence Samlaska reviewed police reports and
spoke to the Cumberland police about its
investigation of crime at the Island Bar.
Committee member Jeffrey Streeter researched the
appropriate zoning location for sexually oriented
businesses to minimize depreciation of real
estate values and disturbances of the peace.
Committee member Richard Nerbun obtained current
health statistics from the Centers for Disease
Control on sexually transmitted diseases and
included them in the ordinance findings. Nerbun
also considered the appropriate hours of
operation for sexually oriented businesses,
taking into account the proximity of the Island
Bar to schools and school bus stops, citizen
safety issues, the school schedule and hours-of-
operation provisions in the ordinances of other
cities. Committee member Carolyn Burns examined
past cases involving municipal regulation of
adult entertainment and reviewed studies
published by other communities concerning the
negative effects of adult businesses on
surrounding neighborhoods. Based ostensibly on
this research, supplemented heavily by NFLF
assistance, the subcommittee drafted a
legislative preamble lifted from the NFLF model
ordinance. It expressed Cumberland's concern
about the adverse effects of sexually oriented
businesses on "the health, safety and welfare of
the patrons of such businesses as well as the
citizens of the City," including "prostitution
and sexual liaisons of a casual nature,"
"sexually transmitted diseases," the "deleterious
effect on both the existing businesses around
them and the surrounding residential areas
adjacent to them" and "objectionable operational
characteristics, particularly when they are
located in close proximity to each other, thereby
contributing to urban blight and downgrading the
quality of life in the adjacent area."
After a public hearing, the Cumberland planning
commission voted to recommend the ordinance to
the city council, and on January 6, 1998, the
city council unanimously adopted City of
Cumberland Ordinance 12.15 ("Ordinance"),
establishing a licensing and regulatory system
for all "sexually oriented businesses." First,
the Purpose and Findings Section explains that
the Ordinance has "neither the purpose nor effect
of imposing a limitation or restriction on the
content of any communicative materials." Instead,
the purpose of the Ordinance is "to regulate
sexually oriented businesses in order to promote
the health, safety, morals, and general welfare
of the citizens of the City" based on "the
adverse secondary effects of adult uses on the
community presented in hearings and in reports
made available to the Council, and on findings
incorporated in the cases of City of Renton v.
Playtime Theaters, Inc., 475 U.S. 41 (1986),
Young v. American Mini Theatres, 427 U.S. 50
(1976), and Barnes v. Glen Theatre, Inc., 501
U.S. 560 (1991), and on studies in other
communities."
Second, Section II defines the different types
of sexually oriented businesses subject to the
Ordinance. Cumberland and the plaintiffs agree
that the Island Bar is covered by the definitions
for two categories of sexually oriented business:
"adult theater" and "adult cabaret." Section
II(3) defines "Adult Cabaret":
a nightclub, bar, restaurant, or similar
commercial establishment which regularly
features:
(a) persons who appear in a state of nudity or
semi-nude; or
(b) live performances which are characterized by
the exposure of "specified anatomical areas" or
by "specified sexual activities"; or
(c) films, motion pictures, video cassettes,
slides or other photographic reproductions which
are characterized by the depiction or description
of "specified sexual activities" or "specified
anatomical areas."
Section II(7) defines "Adult Theater":
a theater, concert hall, auditorium, or similar
commercial establishment which regularly features
persons who appear in a state of nudity or semi-
nude, or live performances which are
characterized by the exposure of "specified
anatomical areas" or by "specified sexual
activities."
In addition, the definitions for "adult arcade,"
"adult bookstore, novelty store or video store,"
"adult motel," "adult motion picture theater" and
"adult mini-motion picture theater" all
incorporate the phrase "characterized by the
depiction or description of 'specified sexual
activities' or 'specified anatomical areas.'"
Specified sexual activities include "the fondling
or other erotic touching of human genitals, pubic
region, buttocks, anus, or female breasts"; "sex
acts, normal or perverted, actual or simulated,
including intercourse, oral copulation,
masturbation, or sodomy"; and "excretory
functions" in connection with sexual activity.
Cumberland Municipal Code Section 12.15, at sec.
II(24). Specified anatomical areas include "(a)
the human male genitals in a discernibly turgid
state, even if completely and opaquely covered;
or (b) less than completely and opaquely covered
human genitals, pubic region, buttocks or a
female breast below a point immediately above the
top of the areola." Id. at sec. II(22).
Third, Section VIII(A) declares the following:
"It shall be a violation for a person who
knowingly and intentionally, in a sexually
oriented business, appears in a state of nudity
or depicts specified sexual activities." The
Ordinance defines "a state of nudity" as the
following:
[T]he showing of the human male or female
genitals, pubic area, vulva, anus, anal cleft or
cleavage with less than a fully opaque covering,
the showing of the female breast with less than
fully opaque covering of any part of the nipple,
or the showing of the covered male genitals in a
discernibly turgid state.
Section VIII(B) makes it a "violation" for an
employee of a sexually oriented business to
appear even semi-nude, unless the employee does
not receive any pay or gratuity from customers
and remains on a stage at least two feet off the
floor and at least ten feet from any customer.
The Ordinance defines "semi-nude condition" as
the following:
[T]he showing of the female breast below a
horizontal line across the top of the areola at
its highest point or the showing of the male or
female buttocks. This definition shall include
the entire lower portion of the human female
breast, but shall not include any portion of the
cleavage of the human female breast, exhibited by
a dress, blouse, skirt, leotard, bathing suit, or
other wearing apparel provided the areola is not
exposed in whole or in part.
Fourth, the Ordinance imposes operating
restrictions and licensing requirements on
sexually oriented businesses. Section X limits
sexually oriented businesses (except adult
motels) to business hours of 10 a.m. to midnight
Monday through Saturday, closed on Sunday.
Sections XI and XIII require operators of
sexually oriented businesses and their employees
to obtain licenses from Cumberland. Section
XIII(A) explains that Cumberland must issue an
employee license within thirty days of
application unless it finds any of the enumerated
reasons for denial, including overdue payment of
Cumberland taxes, fees or fines; recent denial or
revocation of a license or recent conviction for
a sex-related crime by the applicant or a
cohabitant of the applicant; and non-approval of
the premises of the sexually oriented business by
Cumberland inspectors under applicable laws and
ordinances./1 Applicants must provide a legal
name and any aliases, proof of age, residential
and business addresses, a recent photograph, a
physical description, fingerprints, driver's
license information, a Social Security number and
the specified sex-related criminal history and
sexually oriented business license history for
both the applicant and the applicant's
cohabitants. See id. at sec. XI(D)-(G).
Applicants for operators' licenses must divulge
all this information in addition to the
identities of any partners, directors and
principal stockholders, and diagrams of both the
business's interior and the 750-square-foot area
surrounding the business's exterior. See id.
Section XIII(C) provides that Cumberland will
issue an operator's license within thirty days of
receipt of a completed application, unless it
finds any of eight enumerated reasons by a
preponderance of the evidence.
Section XIII(E) guarantees that the health
department, fire department and building official
shall complete their inspection of an applicant's
premises, necessary for licensing, within twenty
days of the application. Each application for a
sexually oriented business license requires a
$100 application and investigation fee. See id.
at sec. XIV(A). Section XVIII promises that
judicial review of denial, refusal to renew or
suspension of a license will be "promptly
reviewed" by a court of competent jurisdiction.
Fifth, Section XXII contains a sweeping
severability provision:
In the event any section, subsection, clause,
phrase or portion of this ordinance is for any
reason held illegal, invalid or unconstitutional
by any court of competent jurisdiction, such
portion shall be deemed a separate, distinct and
independent provision, and such holding shall not
affect the validity of the remainder of this
ordinance. It is the legislative intent of the
Common Council that this ordinance would have
been adopted if such illegal provision had not
been included or any illegal application had not
been made.
On February 8, 1998, the plaintiffs sued
Cumberland in district court seeking a permanent
injunction against enforcement of the Ordinance,
alleging under 42 U.S.C. sec. 1983 that the
Ordinance violates their First Amendment rights
to present nude dancing at the Island Bar.
Cumberland agreed not to enforce the Ordinance
until the district court reached decision on
summary judgment. On November 5, 1998, the
district court held that the Ordinance imposed
content-neutral restrictions on expressive
conduct and upheld the Ordinance's operating
regulations. See Schultz v. City of Cumberland,
26 F.Supp.2d 1128, 1144 (W.D. Wis. 1998).
However, the court also found that the Section
VIII(A) nudity ban is unconstitutionally
overbroad and that the employee-disclosure
provisions and several operator-license
requirements lacked rational connection in the
record to be deemed narrowly tailored to the
Ordinance's purposes. See id. at 1150-51. After
finding the defective sections of the Ordinance
non-severable from the valid provisions, the
court granted summary judgment in favor of the
plaintiffs and permanently enjoined enforcement
of the Ordinance. See id. at 1152.
II. Analysis
Although once furiously debated, it is now
well-established that erotic dancing of the sort
practiced at the Island Bar enjoys constitutional
protection as expressive conduct. See City of
Erie v. Pap's A.M., ___ U.S. ___, 120 S.Ct. 1382,
1385 (2000); Miller v. Civil City of South Bend,
904 F.2d 1081, 1087 (7th Cir. 1990), rev'd sub
nom. on other grounds, Barnes v. Glen Theatre,
Inc., 501 U.S. 560 (1991). Of course, no one
argues that erotic dancing at the Island Bar
represents high artistic expression, but "[n]ude
barroom dancing, though lacking in artistic
value, and expressing ideas and emotions
different from those of more mainstream dances,
communicates them, to some degree, nonetheless."
Miller, 904 F.2d at 1087. The Supreme Court has
agreed, explaining that "nude dancing of the type
at issue here is expressive conduct, although .
. . it falls only within the outer ambit of the
First Amendment's protection." Erie, 120 S.Ct. at
1391 (addressing nude barroom dancing); see also
Barnes, 501 U.S. at 566 ("[N]ude dancing of the
kind sought to be performed here is expressive
conduct within the outer perimeters of the First
Amendment, though we view it as only marginally
so."). Moreover, "[s]exual expression which is
indecent but not obscene is protected by the
First Amendment." Sable Communications of
California, Inc. v. FCC, 492 U.S. 115, 126
(1989). Entertainment may not be prohibited
"solely because it displays the nude human
figure. '[N]udity alone' does not place otherwise
protected material outside the mantle of the
First Amendment." Schad v. Borough of Mount
Ephraim, 452 U.S. 61, 66 (1981) (citations
omitted).
While the parties agree that nude dancing
receives First Amendment protection, this case
presents three disputed issues on appeal. The
first question is whether the operating
restrictions in Sections X and VIII(A) are
unconstitutional content-based regulations of
expression or legitimate time, place or manner
restrictions. The second question is whether
Section VIII(A) is overbroad. The third question
is whether the licensing provisions in Sections
XI and XIII are unconstitutional prior restraints
on expression. We review de novo the district
court grant of summary judgment. See Matney v.
County of Kenosha, 86 F.3d 692, 695 (7th Cir.
1996).
A. Operating Regulations
for Sexually Oriented Businesses
The plaintiffs challenge the Section X hours-of-
operation restriction and the Section VIII(A) ban
on live nudity and sexually explicit gestures as
content-based regulations of protected
expression. They argue that these provisions of
the Ordinance are content-based on their face
because they explicitly target adult
entertainment. The Ordinance applies only to
sexually oriented businesses, which are defined
by the Ordinance with reference to the expressive
activity performed inside. In response,
Cumberland admits that the Ordinance applies only
to adult-entertainment establishments.
Nonetheless, Cumberland insists that the
Ordinance is a content-neutral regulation of
nudity viable under the secondary-effects theory
of Barnes v. Glen Theatre, Inc., 501 U.S. 560,
and City of Erie v. Pap's A.M., 120 S.Ct. 1382.
The Supreme Court has long held that
regulations designed to restrain speech on the
basis of its content are subject to strict
scrutiny and are presumptively invalid under the
First Amendment. See R.A.V. v. City of St. Paul,
505 U.S. 377, 382 (1992); City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 47 (1986);
Stromberg v. California, 283 U.S. 359, 368-69
(1931). Content-based regulations "by their terms
distinguish favored speech from disfavored speech
on the basis of the ideas or views expressed."
Turner Broadcasting Sys., Inc. v. FCC, 512 U.S.
622, 643 (1994). Since "it is the content of the
speech that determines whether it is within or
without the [regulation]," they single out
certain viewpoints or subject matter for
differential treatment. Carey v. Brown, 447 U.S.
455, 462 (1980); see also City of Cincinnati v.
Discovery Network, Inc., 507 U.S. 410, 429
(1993). These regulations draw strict scrutiny
because their purpose is typically related to the
suppression of free expression and thus contrary
to the First Amendment imperative against
government discrimination based on viewpoint or
subject matter. See Texas v. Johnson, 491 U.S.
397, 403 (1989). Owing to the profound national
commitment to robust, open debate, "[t]he First
Amendment generally prevents government from
proscribing speech, or even expressive conduct,
because of disapproval of the ideas expressed."
R.A.V., 505 U.S. at 382 (internal citations
omitted). The government cannot favor one
viewpoint over another, see City Council of Los
Angeles v. Taxpayers for Vincent, 466 U.S. 789,
804 (1984), nor can the government suppress an
entire category of speech, even if the regulation
is viewpoint-neutral within that category of
speech, because the First Amendment bars
"prohibition of public discussion of an entire
topic." See Consolidated Edison Co. v. Public
Serv. Comm'n, 447 U.S. 530, 537 (1980).
In contrast, content-neutral regulations are
justified without reference to the content of the
regulated speech and do not raise the specter of
government discrimination. See Virginia State Bd.
of Pharmacy v. Virginia Citizens Consumer
Council, Inc., 425 U.S. 748, 771 (1976). These
regulations do not refer to expressive content
and do not single out a particular viewpoint or
category of speech for different treatment.
Instead, all speech is treated similarly in an
effort to advance significant government
interests unrelated to content. A general ban on
speech in the vicinity of a school is content-
neutral, see Grayned v. City of Rockford, 408
U.S. 104, 119-20 (1972), whereas an analogous ban
on speech containing an exemption for speech
relating to labor disputes is content-based. See
Police Dep't of Chicago v. Mosley, 408 U.S. 92,
95 (1972). The former regulation requires no
consideration of content before applying the ban,
while the latter regulation requires
consideration whether the speech in question
refers to a labor dispute before it is possible
to determine if the regulation applies. When the
government treats all expression equally without
regard to the ideas or messages conveyed, courts
can be more certain that the government intends
to serve important interests unrelated to
suppression of speech and is not acting with
censorial purpose. In that vein, the government
may institute reasonable time, place or manner
regulations that apply to all speech alike, such
as restrictions on sound amplification at an
outdoor bandshell, see Ward v. Rock Against
Racism, 491 U.S. 781, 791 (1989), or a
prohibition on targeted residential picketing.
See Frisby v. Schultz, 487 U.S. 474, 488 (1988).
Such regulations control the surrounding
circumstances of speech without obstructing
discussion of a particular viewpoint or subject
matter.
However, the First Amendment tolerates greater
interference with expressive conduct, provided
that this interference results as an unintended
byproduct from content-neutral regulation of a
general class of conduct. In most cases, the
government may regulate conduct without regard to
the First Amendment because most conduct carries
no expressive meaning of First Amendment
significance. See Graff v. City of Chicago, 9
F.3d 1309, 1315-16 (7th Cir. 1993). However,
broad regulations of conduct implicate First
Amendment concerns when they apply to specific
instances of expressive conduct. For example, in
United States v. O'Brien, 391 U.S. 367, 382
(1968), the Court considered whether a ban on
destroying draft cards violated the First
Amendment, given that draft-card burning
represented a powerful symbol of political
protest at the time. The government argued that
the ban was necessary for the administration of
the Selective Service program, and as the Court
explained, the statute "plainly does not abridge
free speech on its face . . . . [It] on its face
deals with conduct having no connection with
speech." Id. at 375. The effect on expression was
merely incidental to the content-neutral ban on
the general class of conduct because the ban
applied to draft-card destruction of all forms,
not only to draft-card burning intended as
expression. Although it recognized the symbolic
conduct of draft-card burning as First Amendment
expression, the Court applied intermediate
scrutiny because the restraint on expression was
only an "incidental burden" generated by the
government's content-neutral attempt at
furthering significant governmental interests
unrelated to the suppression of speech. See
O'Brien, 391 U.S. at 382; see also Erie, 120
S.Ct. at 1391; Clark v. Community for Creative
Non-Violence, 468 U.S. 288, 293 (1984). As a
result, the government "generally has a freer
hand" with respect to expressive conduct than
with respect to verbal expression. Johnson, 491
U.S. at 406. When the government enacts a
content-neutral regulation on a class of conduct,
citing the harmful secondary effects related to
that conduct, i.e., the subsidiary effects or
"noncommunicative impact" of the speech, courts
presume that the government did not intend to
censor speech, even if the regulation
incidentally burdens particular instances of
expressive conduct. See Erie, 120 S.Ct. at 1392.
As such, a general prohibition on all public
nudity receives intermediate scrutiny, rather
than strict scrutiny, when the government offers
as its legislative justification the suppression
of public nudity's negative secondary effects.
See id. In Barnes, the Court upheld as content-
neutral an Indiana public-indecency statute
prohibiting nudity in public places because the
statute was directed at preventing prostitution,
sexual assaults and other criminal activity
associated with adult entertainment--government
interests "not at all inherently related to
expression." Barnes, 501 U.S. at 585 (Souter, J.,
concurring)./2 In Erie, the Court sustained an
ordinance nearly identical to the Barnes statute
banning all public nudity because the
government's predominant purpose again was to
combat the harmful secondary effects of public
nudity. See Erie, 120 S.Ct. at 1392. In both
cases, plaintiffs challenged these facially
content-neutral proscriptions on conduct because
the broad prohibitions incidentally illegalized
some expression as well, namely nude dancing. The
Court upheld both regulations because each was
nondiscriminatory on its face with respect to
content and each cited as its legislative
justification the abatement of public nudity's
noxious secondary effects. See id. at 1391-93;
Barnes, 501 U.S. at 585 (Souter, J., concurring).
As the Court explained, "there is nothing
objectionable about a city passing a general
ordinance to ban public nudity (even though such
a ban may place incidental burdens on some
protected speech)." Erie, 120 S.Ct. at 1394. In
neither case did the regulation outlaw nude
dancing specifically or refer to expressive
content; the restriction on nude dancing resulted
incidentally from the general, content-neutral
prohibition on all public nudity.
Cumberland argues that the Ordinance is
constitutional under Barnes and Erie because the
Ordinance is justified without reference to
communicative content and supported by a
legislative record of pernicious secondary
effects. The nominal purpose of the Cumberland
Ordinance was addressing secondary effects
allegedly affiliated with nude dancing, including
"prostitution and sexual liaisons of a casual
nature," "sexually transmitted diseases" and
"urban blight and downgrading the qualify of life
in the adjacent area." Cumberland mustered
extensive efforts to construct a legislative
record substantiating their concerns, and the
Ordinance offers the city council's research as
legislative findings and articulates the
abatement of secondary effects as its purpose.
Moreover, as the Court commended in Erie,
Cumberland referenced the evidentiary foundation
set forth in previous Supreme Court decisions
regarding the baneful secondary effects of adult
entertainment. Erie, 120 S.Ct. at 1395; cf.
Renton, 475 U.S. at 50-52. But see Erie, 120
S.Ct. at 1403-05 (Souter, J., dissenting in part)
(arguing that the government must demonstrate a
particularized factual basis for finding evidence
from previous cases to be relevant). Cumberland
argues that its significant government interest
in stemming harmful secondary effects justifies
all the Ordinance regulations of adult
entertainment, including the ban on nudity and
certain sexually explicit movements.
However, in patent contrast to the regulations
in Barnes and Erie, the Ordinance is not a
content-neutral prohibition on a general class of
conduct. Like the Barnes and Erie regulation, the
Cumberland Ordinance bans nudity. But unlike the
Barnes and Erie regulation, the Ordinance bans it
with reference to certain expressive content. We
can see this by examining the Ordinance
definitions for various types of sexually
oriented businesses to which the Ordinance
arrogates within its Section VIII(A) ban on live
nudity and sexually explicit movements, Section
X operating restrictions and Section XI and XIII
licensing provisions. Specifically, the
plaintiffs challenge Section II(3) and II(7),
which define "adult cabaret" and "adult theater"
respectively and apply to the Island Bar. Both
these sections cover a commercial establishment
that "regularly features . . . live performances
which are characterized by the exposure of
'specified anatomical areas' or 'specified sexual
activities.'" This definition is the predominant
one in the Ordinance for defining sexually
oriented businesses, appearing within the
definitions for adult arcade, adult motel, adult
motion picture theater, adult mini-motion picture
theater and adult bookstore, novelty store or
video store, in addition to those for adult
theater and adult cabaret./3
This definition on its face targets erotic
expression. According to Webster's Third New
International Dictionary, the word "performance"
in this context means "a public presentation or
exhibition . . . " or "something resembling a
dramatic representation." Webster's Third New
Int'l Dictionary 1678 (1986). This term
undeniably denotes communicative content and
applies explicitly to expression, not mere
conduct. The qualifier "characterized by the
exposure of 'specified anatomical areas' or
'specified sexual activities'" then indicates the
type of content that expression must convey to
fall inside the Ordinance's reach. "Characterize"
means "to describe the essential character or
quality of" or "to be a distinguishing
characteristic." Id. at 376. The Ordinance
therefore discriminates against establishments
that regularly feature certain expressive conduct
distinguished by sexual content. Cumberland
modeled its definition on the discriminatory
ordinances in Renton and Young v. American Mini
Theatres, 427 U.S. 50 (1976), which defined the
regulated adult material in those cases as
"distinguished or characterized by their emphasis
on matter depicting, describing or relating to
'Specified Sexual Activities' or 'Specified
Anatomical Areas.'" Indeed, following the Supreme
Court's lead, we already have held that a
substantially similar definition specifically
singled out adult entertainment for different
treatment. See Entertainment Concepts, Inc. v.
Maciejewski, 631 F.2d 497, 504 (7th Cir. 1980);
see also Richland Bookmart, Inc. v. Nichols, 137
F.3d 435, 438-39 (6th Cir. 1998); International
Eateries of America, Inc. v. Broward County, 941
F.2d 1157, 1160-61 (11th Cir. 1991).
As a result, we regard the Ordinance as
content-based. The Ordinance applies only to
certain establishments characterized by their
presentation of live performances with particular
erotic content, and it is the presentation of
expressive content that determines whether
particular establishments are within or without
the regulation. In City of Cincinnati v.
Discovery Network, Inc., 507 U.S. at 429, the
Court explained that a ban on newsracks
containing commercial handbills was content-based
because "whether any particular newsrack falls
within the ban is determined by the content of
the publication resting inside that newsrack.
Thus, by any commonsense understanding of the
term, the ban in this case is 'content based.'"
By the same token, the Cumberland Ordinance is
content-based on its face because whether an
establishment falls within the Ordinance's sweep
is determined by the content of expression inside
it. Cf. Berg v. Health & Hosp. Corp., 865 F.2d
797, 802 (7th Cir. 1989) (finding an ordinance
content-neutral because "it makes no distinction
between types of films or entertainment."). As we
explained in DiMa Corp. v. Town of Hallie, 185
F.3d 823, 828 (7th Cir. 1999), an ordinance that
regulates only adult-entertainment businesses
"singles out adult-oriented establishments for
different treatment based on the content of the
materials they sell or display." See also
National Amusements, Inc. v. Town of Dedham, 43
F.3d 731, 738 (1st Cir. 1995) (stating that
facial discrimination is "a telltale harbinger of
content-based regulation"). The Ordinance
restrictions on nude dancing are not incidental
byproducts from the content-neutral regulation of
a larger, inclusive class of nonexpressive
conduct. Unlike the statute in O'Brien, for
example, which "plainly does not abridge free
speech on its face," 391 U.S. at 374, the
Ordinance by its plain terms specifically targets
erotic expression.
This quality sharply distinguishes the Ordinance
from the regulations examined in Erie, Barnes and
other cases elaborating the permissibility of
incidental burdens from the regulation of general
conduct. Those cases analyzed content-neutral
regulations of conduct and depended on the
consequent presumption of government
nondiscrimination. The government could lawfully
prohibit an entire class of conduct, so long as
it did not define the regulated conduct with
reference to expressive content. See Clark, 468
U.S. at 293; O'Brien, 391 U.S. at 382; see also
Arcara v. Cloud Books, Inc., 478 U.S. 697, 707
(1986) (distinguishing regulations of general
applicability from regulations that inevitably
single out those engaged in First Amendment
protected activities for the imposition of its
burden). Thus, for example, an ordinance
forbidding all camping and sleeping in downtown
Washington, D.C., withstood a constitutional
challenge because it was content-neutral on its
face, even though its application to certain
demonstrators who intended to stay overnight in
Lafayette Park effectively squelched their
protest. See Clark, 468 U.S. at 293.
Similarly, the public-indecency regulation in
Barnes and Erie does not articulate its
prohibitions with any reference to expressive
content. It prohibits public nudity "across the
board" in a facially content-neutral manner,
Barnes, 501 U.S. at 566, and "does not target
nudity that contains an erotic message; rather,
it bans all public nudity, regardless of whether
that nudity is accompanied by expressive
activity." Erie, 120 S.Ct. at 1391. The
regulation applied to nude dancing only because
it was a form of public nudity, even though the
unintended effect of this application was the
restriction of adult entertainment. However,
neither Erie nor Barnes applied a secondary-
effects rationale to a discriminatory regulation
that expressly targets nude dancing or adult
entertainment for prohibition. See International
Eateries, 941 F.2d at 1161 (refusing to apply
Barnes to an ordinance that singles out nude
dancing for regulation); see also R.A.V., 505
U.S. at 394 (questioning whether "an ordinance
that completely proscribes, rather than merely
regulates, a specified category of speech can
ever be considered to be directed only to the
secondary effects of such speech."). As the
Supreme Court has explained, the mere assertion
of a content-neutral purpose does not "save a law
which, on its face, discriminates based on
content." Turner Broadcasting, 512 U.S. at 642-
43. A secondary-effects rationale by itself does
not bestow upon the government free license to
suppress specific content or a specific message
because such a regime would permit the government
to single out a message expressly, formulate a
regulation that prohibits it, then draw content-
neutral treatment nonetheless simply by producing
a secondary-effects rationale as pretextual
justification. See Madsen v. Women's Health Ctr.,
Inc., 512 U.S. 753, 794 (1994) (Scalia, J.,
dissenting in part) ("The vice of content-based
legislation--what renders it deserving of the
high standard of strict scrutiny--is not that it
is always used for invidious, thought-control
purposes, but that it lends itself to use for
those purposes."). As a result, we have never
applied Barnes or Erie to cases in which the
government regulation by its plain language
targets adult entertainment, even when justified
by secondary-effects theories. See DiMa, 185 F.3d
823; North Ave. Novelties, Inc. v. City of
Chicago, 88 F.3d 441 (7th Cir. 1996); Matney, 86
F.3d 692.
Nevertheless, the fact that the Ordinance
definition is content-based on its face does not
necessarily dictate that the Ordinance is
analyzed as content-based and subjected to strict
scrutiny. See DiMa, 185 F.3d at 828; Richland
Bookmart, 137 F.3d at 439. Some time, place or
manner regulations are treated as content-
neutral, even though they are content-based on
their faces. Courts at times have referred to
these regulations as content-neutral, since they
are treated as such in certain contexts. See,
e.g., 11126 Baltimore Blvd., Inc. v. Prince
George's County, Md., 58 F.3d 988, 995 (4th Cir.
1995). But these courts often called them
content-neutral without explaining that the
regulations are in fact content-based and only
analyzed as content-neutral when certain
preconditions are met. See DiMa, 185 F.3d at 828
(explaining that the Supreme Court held this type
of content-based regulation is to be "treated
like content-neutral time, place, and manner
regulations, not that it was content-neutral.");
Richland Bookmart, 137 F.3d at 439. At least in
the domain of adult entertainment, discriminatory
time, place or manner restrictions can be upheld
as content-neutral restrictions on adult
entertainment if they (1) are justified without
reference to the content of the regulated speech;
(2) are narrowly tailored to serve a significant
government interest in curbing adverse secondary
effects; and (3) still leave open ample
alternative channels for communication. See
Renton, 475 U.S. at 47; Young, 427 U.S. at 61;
DiMa, 185 F.3d at 828. This standard strikes a
healthy balance between the citizenry's First
Amendment interests and the government's
legitimate interests unrelated to suppression of
speech. The government may further substantial
state interests by directing speech through
certain avenues rather than others, but only if
the government's means preserve legitimate
opportunity for continued speech. Even when
actuated by a secondary-effects motive, the
government may not "deprive the public of its
ability to 'satisfy its appetite for sexually
explicit fare.'" Matney, 86 F.3d at 697-98
(quoting Berg, 865 F.2d at 803).
Content-discriminatory time, place or manner
regulations received intermediate scrutiny in
Renton and Young because the government did not
censor expression and instead advanced zoning
schemes supported by secondary-effects
rationales. Renton, 475 U.S. at 54; Young, 427
U.S. at 72-73. Although neither addressed nude
dancing, both ordinances targeted adult-film
entertainment on the basis of content. With
language similar to the Cumberland Ordinance,
those ordinances defined the regulated adult
material as that "distinguished or characterized
by their emphasis on matter depicting, describing
or relating to 'Specified Sexual Activities' or
'Specified Anatomical Areas.'" Discriminatory on
their faces, the ordinances did not ban adult
entertainment; instead, the ordinances imposed on
adult bookstores and theaters geographic-zoning
restrictions that fell comfortably within the
rubric of a time, place or manner regulation.
Inside the appropriate zones, sexually oriented
establishments were permitted to purvey adult
entertainment "essentially unrestrained." Young,
427 U.S. at 62; see also North Ave. Novelties, 88
F.3d at 444. The Renton ordinance isolated adult
entertainment in concentrated regions to protect
residential and commercial centers, and the Young
ordinance dispersed adult establishments to
diffuse their secondary effects. Neither
ordinance stifled or significantly burdened the
availability of adult entertainment. The Court
noted in Young, "The situation would be quite
different if the ordinance had the effect of
suppressing, or greatly restricting access to,
lawful speech. Here, however, . . . '[the] burden
on First Amendment rights is slight.'" Young, 427
U.S. at 71 n.35 (citation omitted).
Applying Renton and Young to a Chicago zoning
ordinance that limited the location of "adult
uses," we explained that a content-discriminatory
regulation of time, place or manner is
constitutional only if it preserves "'reasonable
opportunity' to disseminate the speech at issue."
North Avenue Novelties, 88 F.3d at 445. The key
inquiry focuses upon "the ability of producers as
a group to provide sexually explicit expression,
as well as on the ability of the public as a
whole to receive it." Id. at 444. We upheld the
Chicago ordinance because it "does not prohibit
sexually explicit expression, but merely requires
that such expression take place only in specified
areas, and only in a non-concentrated manner."
Id.; see also Matney, 86 F.3d at 698 (upholding
an open-booth requirement for adult-entertainment
viewing booths because it in no sense purported
to ban or even limit adult entertainment); Berg,
865 F.2d at 802 (same). Thus, only the provisions
of the Ordinance that regulate the time, place or
manner of adult entertainment without removing
alternative channels of communication are
reasonable under the First Amendment.
Under this standard, we uphold the Section X
limitations on the hours of operation for
sexually oriented businesses. Section X is a
classic time, place or manner restriction,
limiting the business hours for sexually oriented
businesses to between 10 a.m. and midnight,
Monday through Saturday. In DiMa, we found an
ordinance that restricted the operating hours of
adult-oriented establishments to be content-
based, but analyzed and upheld it under content-
neutral analysis consistent with Renton and
Young. DiMa, 185 F.3d at 831; see also Lady J.
Lingerie, Inc. v. City of Jacksonville, 176 F.3d
1358, 1365 (11th Cir. 1999); Richland Bookmart,
137 F.3d at 439-41; Mitchell v. Commission on
Adult Entertainment Establishments, 10 F.3d 123
(3d Cir. 1993). Combating harmful secondary
effects of adult entertainment is a significant
government interest unrelated to speech content,
and Cumberland satisfactorily established a
secondary-effects justification for its time,
place or manner regulation. See DiMa, 185 F.3d at
830. Whereas the municipality in DiMa did nothing
more than cite the experiences of another
Wisconsin town, Cumberland collected and reviewed
a host of studies on secondary effects and the
need for constrained operating hours.
Cumberland's legislative research indicated that
the hours-of-operation constraint enabled local
law enforcement to concentrate its limited
resources for those business hours. Although
Section X provides fewer hours of operation than
the ordinance in DiMa, we find that the
restriction is not "substantially broader than
necessary," even if more restrictive than
absolutely necessary or justified. Ward, 491 U.S.
at 800.
Section VIII(A) presents a more difficult
question. Section VIII(A) proscribes "appear[ing]
in a state of nudity or depict[ing] specified
sexual activities" in a sexually oriented
business. Cumberland bases Section VIII(A) on the
significant government interest in fighting
injurious secondary effects and justifies it by
citing the history of crime at the Island Bar and
research on secondary effects from studies and
other cases. Section VIII(A) is cleverly styled
as a mere time, place or manner restriction
because it forbids certain expressive activity
only within sexually oriented businesses but not
elsewhere. Yet the operation of Section VIII(A)
is clear. In practice, it effectively bans
commercial nude dancing. Section II of the
Ordinance defines a sexually oriented business as
one that regularly features live performances
characterized by the exposure of specified
anatomical areas or specified sexual activities.
But such performances by Ordinance definition
always contain nudity (by virtue of exposed
specified anatomical areas) or depictions of
specified sexual activities, both of which
Section VIII(A) bans within those sexually
oriented establishments. Thus, Section II defines
sexually oriented businesses with reference to
the presentation of live adult entertainment,
then Section VIII(A) stifles that presentation by
forbidding nudity and sexual depictions within
those sexually oriented businesses. To wit, the
Island Bar is a sexually oriented business
because it presents nudity, and as a result, the
Ordinance bans nudity within the Island Bar, the
sole supplier of nude dancing in Cumberland.
Paradoxically, only by refraining from protected
speech can a venue, its operator and its
performers avoid the Section VIII(A)
restrictions. For this reason, Section VIII(A) is
not a mere time, place or manner restriction.
Nonetheless, the Supreme Court held in Erie and
Barnes that limiting erotic dancing to semi-
nudity represents a de minimis restriction that
does not unconstitutionally abridge expression.
Erie, 120 S.Ct. at 1397; Barnes, 501 U.S. at 571.
As the Court explained in Barnes, "the
requirement that the dancers don pasties and
G-strings does not deprive the dance of whatever
erotic message it conveys; it simply makes the
message slightly less graphic." Barnes, 501 U.S.
at 571. Similarly in Erie, the Court reiterated
that "[t]he requirement that dancers wear pasties
and G-strings is a minimal restriction in
furtherance of the asserted government interests,
and the restriction leaves ample capacity to
convey the dancer's erotic message." Erie, 120
S.Ct. at 1397. Insofar as it prohibits full
nudity and requires dancers to wear pasties and
G-strings while performing, Section VIII(A) does
not offend the First Amendment. Cf. Dodger's Bar
& Grill, Inc. v. Johnson County Bd. of County
Comm'rs, 52 F.3d 1436, 1443 (10th Cir. 1994)
(upholding similar nudity restrictions under the
Twenty-First Amendment). The Ordinance, however,
goes several steps further. Section VIII(A)
outlaws the performance of a strikingly wide
array of sexually explicit dance movements, or
what the Ordinance misdenominates as "specified
sexual activities," including "the fondling or
erotic touching of human genitals, pubic region,
buttocks, anus, or female breasts."
By restricting the particular movements and
gestures of the erotic dancer, in addition to
prohibiting full nudity, Section VIII(A) of the
Ordinance unconstitutionally burdens protected
expression. The dominant theme of nude dance is
"an emotional one; it is one of eroticism and
sensuality." Miller, 904 F.2d at 1086-87. Section
VIII(A) deprives the performer of a repertoire of
expressive elements with which to craft an
erotic, sensual performance and thereby
interferes substantially with the dancer's
ability to communicate her erotic message. It
interdicts the two key tools of expression in
this context that imbue erotic dance with its
sexual and erotic character--sexually explicit
dance movements and nudity. Unlike a simple
prohibition on full nudity, Section VIII(A) does
much more than inhibit "that portion of the
expression that occurs when the last stitch is
dropped." Erie, 120 S.Ct. at 1393. Section
VIII(A) constrains the precise movements that the
dancer can express while performing. The dancer
may use non-sexually explicit elements and semi-
nudity to convey a certain degree of sensuality,
but putting taste aside, more explicit and erotic
content is commonly available on primetime
television without being fairly regarded as adult
entertainment. The Court has declared that the
government cannot "ban all adult theaters--much
less all live entertainment or all nude dancing."
Schad, 452 U.S. at 71. We ourselves explained in
DiMa, "Because this speech is not obscene,
government may not simply proscribe it." DiMa,
185 F.3d at 827. Cumberland cannot avoid this
dictate by regulating nude dancing with such
stringent restrictions that the dance no longer
conveys eroticism nor resembles adult
entertainment. The portion of Section VIII(A)
that bars the "depiction of specified sexual
activities" is unconstitutional because it
prevents erotic dancers from practicing their
protected form of expression.
None of the Supreme Court's precedent permits a
government regulation expressly directed at adult
entertainment and imposing such a restriction on
non-obscene adult entertainment. Analyzed under
strict scrutiny, as befits a content-based
regulation, this portion of Section VIII(A)
violates the First Amendment. To survive strict
scrutiny, the provision must be necessary to
serve a compelling state interest and be narrowly
drawn to achieve that end. See Simon & Schuster,
Inc. v. Members of the N.Y. State Crime Victims
Bd., 502 U.S. 105, 118 (1991). This provision
fails because it is not necessary to serve
Cumberland's significant interest in arresting
secondary effects. Cumberland can employ a
variety of less speech-restrictive and more
direct means to fight prostitution, illicit sex,
sexually transmitted disease and urban blight.
See Leverett v. City of Pinellas Park, 775 F.2d
1536, 1540 (11th Cir. 1985). We uphold the
portion of Section VIII(A) that bans full nudity
within sexually oriented businesses but strike
the portion of Section VIII(A) that bans the
performance of specified sexually explicit
movements within sexually oriented businesses.
B. Section VIII(A) and Overbreadth
Having found part of Section VIII(A) to be a
constitutional time, place or manner restriction,
we now reach the plaintiffs' claim that Section
VIII(A) is overbroad. The overbreadth doctrine
prevents the government from casting a net so
wide that its regulation impermissibly burdens
speech. To avoid chilling the speech of third
parties who may be unwilling or unlikely to raise
a challenge in their own stead, the overbreadth
doctrine in certain circumstances permits
litigants already before the court to challenge
a regulation on its face and raise the rights of
third parties whose protected expression is
prohibited or substantially burdened by the
regulation. See Broadrick v. Oklahoma, 413 U.S.
601, 613 (1973). A facial overbreadth challenge
is successful when it establishes "a realistic
danger that the statute itself will significantly
compromise recognized First Amendment protections
of parties not before the Court." City Council of
Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 801 (1984). The Supreme Court has cautioned
that overbreadth is "manifestly, strong
medicine," Broadrick, 413 U.S. at 613, and has
invalidated regulations only when a limiting
construction is not readily available and the
unconstitutional applications of the regulation
are real and substantial in relation to the
regulation's plainly legitimate sweep. See, e.g.,
Forsyth County v. Nationalist Movement, 505 U.S.
123 (1992); Board of Airport Comm'rs of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569
(1987); Brockett v. Spokane Arcades, 472 U.S. 491
(1985); Village of Schaumburg v. Citizens for a
Better Environment, 444 U.S. 620 (1980).
Cumberland claims that Barnes and Erie shield
the Ordinance from an overbreadth challenge, but
the Supreme Court did not reach the issue of
overbreadth in either case. In Barnes, a state
court decision provided a limiting construction
that saved the public-nudity statute from
overbreadth. Barnes, 501 U.S. at 565 n.1.
However, speaking for the Court, Justice Souter
questioned skeptically whether the secondary-
effects rationale from that case would protect
against an overbreadth challenge if the statute
"bar[red] expressive nudity in classes of
productions that could not readily be analogized
to the adult films at issue in Renton." Barnes,
501 U.S. at 585 n.2 (Souter, J., concurring). He
doubted that the statute could be applied to "a
production of 'Hair' or 'Equus' . . . in the
absence of evidence that expressive nudity
outside the context of Renton-type adult
entertainment was correlated with such secondary
effects." Id. In Erie, the Court again did not
reach the overbreadth question presented by the
parties. The Court simply reversed the
Pennsylvania Supreme Court on other grounds and
remanded without addressing overbreadth. See
Erie, 120 S.Ct. at 1398, see also Erie, 120 S.Ct.
at 1406 n.5 (Souter, J., dissenting in part)
(noting that the lower court on remand could
dispose of the case on overbreadth grounds, which
the Court did not address). Thus, Barnes and Erie
are unhelpful with respect to overbreadth.
We already have found that the Section VIII(A)
ban on full nudity is a permissible restriction
of erotic dancing at the Island Bar, but the
plaintiffs argue on behalf of third parties who
wish to engage in protected speech yet are
deterred by what the plaintiffs regard as the
Ordinance's real and substantial threat of
overbreadth. In this context, the overbreadth
doctrine guards against the suppression of
protected speech unconnected to the negative
secondary effects cited as legislative
justification. See Tunick v. Safir, 209 F.3d 67,
83 (2d Cir. 2000); Triplett Grille, Inc. v. City
of Akron, 40 F.3d 129, 135 (6th Cir. 1994). When
the government restricts speech not associated
with harmful secondary effects, then the
government cannot be fairly said to be regulating
with those secondary effects in mind and the
regulation extends beyond its legitimate reach.
Cumberland has made no finding of harmful
secondary effects resulting from venues outside
of adult entertainment, so the overbreadth
doctrine would invalidate Section VIII(A) if it
stifles substantial expressive conduct
unassociated with the pernicious secondary
effects advanced as the Ordinance's purpose. The
plaintiffs argue that Section VIII(A)
unconstitutionally forbids the regular showing of
live performances featuring live nudity or
depiction of sexual activity, but which sit
outside the domain of adult entertainment and are
uncorrelated with harmful secondary effects.
Specifically, the plaintiffs explain that the
definitions for adult theater and adult cabaret
would cover venues that present theatrical and
artistic performances which feature nudity or
sexual content, but also contain serious
artistic, social or political value.
The plain language of the Ordinance determines
whether Section VIII(A) is overbroad. The Section
II definitions for adult theater and adult
cabaret cover a commercial establishment that
"regularly features . . . persons who appear in
a state of nudity or semi-nude." This definition
lends itself to expansive interpretation.
"Regularly" means "in a regular, orderly, lawful,
or methodical way," and "regular" means
"returning, recurring or received at stated,
fixed or uniform intervals ." Webster's, at 1913.
"Features" means "to give special prominence to
. . . ." Id. at 832. The definition for adult
theater and adult cabaret might include within
the Ordinance's province any venue that presents
at orderly intervals, as a matter of normal
course, performances that prominently include
nudity or semi-nudity. So construed, this
definition would include a theater or playhouse
that shows on a regular basis an interpretation
of Hair, a presentation characterized by much
nudity but which the Court has indicated
constitutes protected speech. See Barnes, 501
U.S. at 585 n.2 (Souter, J., concurring);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 558 (1975). The text does not limit its
regulation to adult entertainment because an
array of "regularly feature[d]" artistic and
theatrical expression includes live nudity or
semi-nudity without necessarily becoming content
readily analogous to the adult entertainment
regulated in Renton and Young. Unlike statutes
upheld against overbreadth challenges in other
cases, the Ordinance contains no explicit
exception for expression that contains nudity or
sexual depiction but also possesses serious
artistic, social or political value. See, e.g.,
Tunick, 209 F.3d at 71 (exception for
"performances or exhibitions that [take] place
indoors before audiences"); J&B Entertainment,
Inc. v. City of Jackson, 152 F.3d 362, 365 (5th
Cir. 1998) (exception for persons "engaged in
expressing a matter of serious literary,
artistic, scientific or political value"); Farkas
v. Miller, 151 F.3d 900, 905 (8th Cir. 1998)
(exception for venues "primarily devoted to the
arts or theatrical performances"). Nor has the
Ordinance been narrowed by state courts, as was
the statute in Barnes, to exclude protected
expression.
Nonetheless, a facial overbreadth challenge
fails when the regulation's plain language is
readily susceptible to a narrowing construction
that would make it constitutional. See American
Booksellers, 484 U.S. at 397. "Regularly
features" lends itself to the definition
described above--giving special prominence at
uniform, orderly intervals as a matter of normal
course. However, the Ordinance does not specify
how long a venue must regularly feature such
content before it qualifies as a sexually
oriented business. For example, a local theater
might offer nightly showings of Hair for only a
month, and it is unclear whether this regularity
suffices to qualify the theater as an adult
theater or cabaret. The local theater probably
would not resemble an adult-entertainment
establishment in the sense contemplated by Renton
and Young, provided that it also regularly
showcased other plays and performances, not all
of which contain nudity, semi-nudity or sexual
content. In this context, a narrowing
construction that comports with the Ordinance's
express intent is readily available: giving
special prominence at uniform, orderly intervals
on a permanent basis. "Regularly features" can be
interpreted to mean "always features." Under this
interpretation, a venue falls within the
definitions for adult theater and adult cabaret
only if it features nudity, semi-nudity or
specified sexual content as the permanent focus
of its business and gives special prominence to
such content on a permanent basis./4 This
construction limits the Ordinance to adult-
entertainment establishments, which always
feature nudity, semi-nudity and specified sexual
content, and excludes theatrical venues that
present shows like Hair or Equus for long
stretches but not on a permanent basis. It is
conceivable, though unlikely, that a theater
might make the presentation of artistic
performances featuring nudity its abiding focus.
But even so, the Ordinance's unconstitutional
applications would not be real and substantial in
relation to its plainly legitimate sweep. See
Brockett, 472 U.S. at 503. At worst, the
Ordinance might require theatrical dancers to don
pasties and G-strings while performing, and those
performers can bring as-applied challenges to the
Ordinance at that time, assuming Cumberland
enforces it against them. In a facial challenge
like this one, there must be a realistic danger
that the Ordinance will significantly compromise
the First Amendment rights of parties not before
the Court. See Taxpayers for Vincent, 466 U.S. at
801. The plaintiffs suggest scenarios to which
the Ordinance might apply on its face and would
unconstitutionally restrict protected expression,
but the Ordinance is readily susceptible to a
narrowing construction that saves the potentially
unconstitutional applications from dwarfing the
Ordinance's legitimate reach. We reject the
plaintiffs' overbreadth claims and reverse the
district court's grant of summary judgment in the
plaintiffs' favor on those claims.
C. Licensing Provisions
The plaintiffs argue that Sections XI and XIII
impose prior restraints on expression, in the
form of licensing, disclosure and qualification
requirements, that are not narrowly tailored to
Cumberland's significant government interests in
stemming detrimental secondary effects. The
plaintiffs do not challenge the procedural
adequacy of the licensing schemes contained in
Sections XI and XIII of the Ordinance. See, e.g.,
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228
(1990) (requiring constrained discretion by the
licensor, a limited time frame within which the
licensor must decide and opportunity for prompt
judicial review).
Any system of prior restraint comes "bearing a
heavy presumption against its constitutional
validity." Southeastern Promotions, 420 U.S. at
558 (quoting Bantam Books, Inc. v. Sullivan, 372
U.S. 58, 70 (1963)). The proponent of a prior
restraint "'carries a heavy burden of showing
justification for the imposition of such a restraint.'"
New York Times Co. v. United States, 403 U.S.
713, 714 (1971) (quoting Organization for a
Better Austin v. Keefe, 402 U.S. 415, 419
(1971)). However, prior restraints are not per se
unconstitutional because "the state may sometimes
curtail speech when necessary to advance a
significant and legitimate state interest."
Taxpayers for Vincent, 466 U.S. at 804. Indeed,
we already have decided that a licensing
requirement for adult-entertainment
establishments is not unconstitutional per se as
a prior restraint, if it otherwise conforms to
the constitutional requirements of Young. See
Genusa v. City of Peoria, 619 F.2d 1203, 1213
(7th Cir. 1980).
Licensing, though functioning as a prior
restraint, is constitutionally legitimate when it
complies with the standard for time, place or
manner requirements. See, e.g., Cox v. New
Hampshire, 312 U.S. 569, 575-76 (1941). Time,
place or manner restrictions that regulate the
conditions under which expression may take place
are permissible so long as the regulation is
narrowly tailored to serve a significant
government interest unrelated to the suppression
of free expression and leaves alternative
channels for communication. See DiMa, 185 F.3d at
828. In Genusa v. City of Peoria, we held that a
city government could require municipal licensing
for adult bookstores based on a secondary-effects
rationale from Young. Genusa, 619 F.2d at 1215.
We upheld required disclosure of certain
information, such as the license applicant's
name, address and proposed place of business,
because this information was "legitimately
related to the state interest that underlies the
zoning provisions." Id. at 1216; see also TK's
Video, Inc. v. Denton County, 24 F.3d 705, 710
(5th Cir. 1994) (requiring a "relevant
correlation" or "substantial relation" between
the information required and the government
interest). We also upheld the requirement that
licensees openly display their adult-use license
because this was rationally related to policing
for licensing compliance and had "no discernible
impact on protected freedoms." Genusa, 619 F.2d
at 1221.
Similarly here, we uphold the Ordinance
inspection requirements and certain portions of
Section XI requiring applicant disclosures.
Section V of the Ordinance imposes interior-
configuration requirements, which the plaintiffs
appear not to challenge and analogs of which we
have approved before as reasonable time, place or
manner regulations. See Matney, 86 F.3d 698;
Berg, 865 F.2d at 803. Section XIII(C)(6) forbids
licensing when the premises of the business have
not been approved as in compliance with
applicable laws and ordinances, including those
configuration requirements. This provision
enables the city to enforce compliance with the
special health and safety requirements for
sexually oriented businesses. To the degree that
the Ordinance requires compliance with other
extant health and safety laws applicable to all
Cumberland businesses, Section XIII(C)(6) is
redundant and constitutionally inoffensive. Cf.
Arcara, 478 U.S. at 707 (permitting closure of an
adult bookstore for violating health laws
applicable to all businesses). In contrast to the
City of Peoria in Genusa, Cumberland collected an
adequate body of research to justify its
interior-configuration requirements and
substantiate a connection between these
regulatory requirements and the city's legitimate
interest in arresting secondary effects.
We also uphold the Section XI required
disclosures of the following: the applicant's
name; proof of the applicant's age; the type of
license for which the applicant is applying; the
proposed location, address and descriptions of
the business premises; identifying personal data.
All this information allows Cumberland to
regulate the time, place or manner of adult
entertainment without censoring expression. This
data enables Cumberland to administer licenses
and monitor compliance with its zoning
requirements, which the plaintiffs do not
challenge. Likewise, requiring proof of employee
age legitimately relates to the government's
interest in preventing underage performers from
engaging in adult entertainment. In addition, we
uphold the Ordinance requirement of a revenue-
neutral license application fee to defray the
costs of administration. See Genusa, 619 F.2d at
1213./5 Yet we invalidate the required
production of a residential address, recent color
photograph, Social Security number, fingerprints,
tax-identification number and driver's license
information. This information is redundant and
unnecessary for Cumberland's stated purposes. Its
required disclosure serves "no purpose other than
harassment," Genusa, 619 F.2d at 1217, because it
is not narrowly tailored to the government's
interests in the time, place or manner of adult
entertainment.
The First Amendment also does not allow
licensing provisions based on criminal history
that "totally prohibit certain classes of
persons" from First Amendment expression. Genusa,
619 F.2d at 1218. We struck provisions of the
Peoria licensing scheme in Genusa that
disqualified applicants who previously had a
liquor-license revocation, felony conviction or
a specified sex-related conviction. Id. at 1218.
These provisions were absolute prohibitions on
speech, and the city failed to demonstrate that
its goals "[could not] be effectuated by means
that impact less drastically on protected
freedoms." Id. at 1219. The disqualification
provisions were content-based prohibitions of
expression that do not fall within Barnes and
Erie and fail to provide alternative channels for
communication under Renton and Young. As we
explained in Genusa, "We know of no doctrine that
permits the state to deny to a person First
Amendment liberties other than the right to vote
solely because that person was once convicted of
a crime or other offense." Genusa, 619 F.2d at
1219 n.40.
Accordingly, the Ordinance disqualification
provisions in Section XIII for operator and
employee licensing are unconstitutional as well.
Sections XIII(A)(3) and (C)(5) disqualify any
applicant who has been convicted of a "specified
criminal activity," defined as any of the vice
offenses listed in Section II(23)./6 Sections
XIII(A)(5) and (C)(4) disqualify any applicant
who recently had been denied or revoked a license
by the city. Section XIII(C)(2) disqualifies any
applicant who is overdue in payment of city
taxes, fees, fines, or penalties in relation to
any business. Like the disqualification
provisions struck as unconstitutional in Genusa,
these license ineligibility provisions absolutely
disentitle classes of speakers from a category of
expression. They produce a complete ban on
certain expression for a disqualified group of
applicants who, by definition, wish to speak, and
such a drastic measure cannot be justified here
as narrowly tailored to resist noisome secondary
effects. Indeed, Cumberland neither conducted nor
cited any study establishing its basic premise
that ownership or performance by those convicted
of specified criminal activity or misconduct is
more likely to lead to secondary effects than
ownership or performance by anyone else.
The government may regulate the conditions under
which operators and performers may stage adult
entertainment, and in accordance, it may withhold
or revoke a license pending compliance with
legitimate time, place or manner requirements.
Yet the government may not categorically
disenfranchise a class from protected expression
in this licensing context, at least on the
factual record Cumberland has compiled, because
it thereby fails to provide the alternative
channels for communication required by Renton and
Young for those speakers. Consequently, the
Section XI(E)(3)-(5) required disclosures of the
applicant's criminal and past licensing histories
are unnecessary because, absent any
disqualification ground on those bases, such
disclosures are unjustified by a government
interest here.
D. Severability
The severability clause in Section XXII of the
Ordinance provides that "[i]n the event that any
section, subsection, clause, phrase or portion of
this ordinance is for any reason held illegal,
invalid or unconstitutional . . . such holding
shall not affect the validity of the remainder of
this ordinance." However, the severability clause
can save the constitutionally viable remainder
only if the invalidated elements were not "an
integral part of the statutory enactment viewed
in its entirety." Zbaraz v. Hartigan, 763 F.2d
1532, 1545 (7th Cir. 1985) (internal quotation
and citation omitted). We have found
unconstitutional as they apply to adult theaters
and adult cabarets, the Section VIII(A) ban on
certain sexually explicit movements, several
Section XI disclosure requirements and all the
Section XIII licensing disqualification
provisions. This leaves several discrete sections
that stand on their own: the Section VIII(A) ban
on nudity within sexually oriented businesses,
the Section X hours-of-operation provision and a
licensing system that requires disclosure of
applicant age and business data relating to the
time, place or manner of the sexually oriented
business's operation. In deference to the
Ordinance's robust severability clause, we think
that the unconstitutional provisions of the
Ordinance may be severed workably from the rest.
We therefore permanently enjoin only the stricken
sections and permit the operation of those
sections either upheld or unchallenged.
III. Conclusion
For the foregoing reasons, the following
provisions of the Ordinance violate the First
Amendment: the Section VIII(A) ban on sexually
explicit movements within sexually oriented
businesses; Section XI(C) (fingerprinting
requirement); Section XI(E)(3)-(5), (8)-(10),
Section XI(F)(3)-(4), (6)-(7), and Section XI(G)
(certain disclosure requirements); Section
XIII(A)(3), (5) and Section XIII(C)(2), (4)-(5)
(certain disqualification provisions); and
Section XIII(B) (ineligibility for license
renewal on the basis of specified criminal
activity). The following provisions of the
Ordinance are constitutional and severed from the
invalidated provisions: the Section VIII(A)
prohibition on nudity within sexually oriented
businesses; and the remaining licensing
provisions in Sections XI and XIII. We offer no
opinion regarding other provisions of the
Ordinance that the plaintiffs did not challenge.
We Affirm in part and Reverse in part the judgment
of the district court.
/1 Section XIII provides in pertinent part:
(A) Upon the filing of said application for a
sexually oriented business employee license, the
city shall issue a temporary license to said
applicant. The application shall then be referred
to the appropriate city departments for an
investigation to be made on such information as
is contained on the application. The application
process shall be completed within thirty (30)
days from the date the completed application is
filed. After the investigation, the City shall
issue a license, unless it is determined by a
preponderance of the evidence that one or more of
the following findings is true:
(1) The applicant has failed to provide
information reasonably necessary for issuance of
the license or has falsely answered a question or
request for information on the application form;
(2) The applicant is under the age of eighteen
(18) years;
(3) The applicant has been convicted of a
"specified criminal activity" as defined in this
ordinance;
(4) The sexually oriented business employee
license is to be used for employment in a
business prohibited by local or state law,
statute, rule or regulation, or prohibited by a
particular provision of this ordinance; or
(5) The applicant has had a sexually oriented
business employee license revoked by the City
within two (2) years of the date of the current
application. If the sexually oriented business
employee license is denied, the temporary license
previously issued is immediately deemed null and
void. . . .
(B) A license granted pursuant to this section
shall be subject to annual renewal upon the
written application of the applicant and a
finding by the City that the applicant has not
been convicted of any specified criminal activity
as defined in the ordinance or committed any act
during the existence of the previous license
which would be grounds to deny the initial
license application. The renewal of the license
shall be subject to the payment of the fee as set
forth in Section XIV.
(C) Within 30 days after receipt of a completed
sexually oriented business application, the City
shall approve or deny the issuance of a license
to an applicant. The City shall approve the
issuance of a license to an applicant unless it
is determined by a preponderance of the evidence
that one or more of the following findings is
true:
(1) An applicant is under eighteen (18) years of
age.
(2) An applicant or a person with whom applicant
is residing is overdue in payment to the City of
taxes, fees, fines, or penalties assessed against
or imposed upon him/her in relation to any
business.
(3) An applicant has failed to provide
information reasonably necessary for issuance of
the license or has falsely answered a question or
request for information on the application form.
(4) An applicant or a person with whom the
applicant is residing has been denied a license
by the City to operate a sexually oriented
business within the preceding twelve (12) months
or whose license to operate a sexually oriented
business has been revoked within the preceding
twelve (12) months.
(5) An applicant or a person with whom the
applicant is residing has been convicted of a
specified criminal activity defined in this
ordinance.
(6) The premises to be used for the sexually
oriented business have not been approved by the
health department, fire department, and the
building officials as being in compliance with
applicable laws and ordinances.
(7) The license fee required by this ordinance
has not been paid.
(8) An applicant of the proposed establishment
is in violation of or is not in compliance with
any of the provisions of this ordinance.
/2 A divided Court issued four separate opinions in
Barnes, but under Marks v. United States, 430
U.S. 188, 193 (1977), Justice Souter's
concurrence is the controlling opinion on this
issue, as the most narrow opinion joining the
judgment of the Court. See DiMa Corp. v. Town of
Hallie, 185 F.3d 823, 830 (7th Cir. 1999); see
also Tunick v. Safir, 209 F.3d 67, 83 (2d Cir.
2000) (collecting cases in agreement from other
circuits).
/3 The definition for "adult cabaret" has an
additional clause that again refers to content.
This prong of the definition apprehends within
its ambit a commercial establishment that
"regularly features films, motion pictures, video
cassettes, slides or other photographic
reproductions which are characterized by the
depiction or description of 'specified sexual
activities' or 'specified anatomical areas.'"
The definitions of "nudity," "semi-nude,"
"specified anatomical areas" and "specified
sexual activities" are uncontroversial, and the
parties do not contend otherwise.
/4 In practice, the Ordinance defines adult cabaret
and adult theater as establishments that
regularly feature semi-nudity or depictions of
specified sexual activities. Under the Ordinance,
it is legally impossible to feature nudity
regularly. Any establishment that regularly
features full nudity qualifies as a sexually
oriented business under the Ordinance. As a
sexually oriented business, the venue is then
prohibited by Section VIII(A) from presenting
nudity even once. At that point, the venue could
not be characterized as regularly featuring
nudity and thus would no longer be classified as
a sexually oriented business. As such, it would
be free to show nudity so long as it did not
again "regularly feature" it. The point is that
the Section VIII(A) prohibition on nudity in
establishments that regularly feature nudity is
a legal nullity unless Cumberland or courts
define a time period during which the venue will
be classified as a sexually oriented business, by
virtue of its regular featuring of nudity in the
past, even after Section VIII(A) prevents further
presentation of nudity within.
/5 Section XI(3)-(5) requires disclosure of
information relating to the applicant's
cohabitants, and Section XIII(C)(2) and
XIII(C)(4)-(5) disqualify applicants based on
that information. The plaintiffs do not challenge
these provisions on appeal, and the district
court correctly held that they lack third-party
standing to challenge these provisions on behalf
of their cohabitants. See Schultz, 26 F.Supp. at
1149 n.2. Similarly, the plaintiffs do not have
standing to challenge Ordinance provisions
relating to corporate shareholders because the
Island Bar is a sole proprietorship.
/6 Section II(23)(a) defines "specified criminal
activity" as
prostitution or promotion of prostitution;
dissemination of obscenity; sale, distribution or
display of harmful material to a minor; sexual
performance by a child; possession or
distribution of child pornography; public
lewdness; indecent exposure; indecency with a
child; engaging in organized criminal activity;
sexual assault; molestation of a child; gambling;
or distribution of a controlled substance; or any
similar offenses to those described above under
the criminal or penal code of other states or
countries.