Docket No. 15-1515
In the Supreme Court of the United States
October Term, 2016
CITY OF PLEASANTVILLE, Petitioner,
v.
PLEASURE PALACE, LLC AND SAM SNODGRASS,
Respondents
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF FOR THE RESPONDENT
Team 24
Counsel for Respondent
QUESTIONS PRESENTED
I.
Whether the court of appeals erred in finding that the city failed to meet the
standards of Renton v. Playtime Theatres, 475 U.S. 41 (1986) and its progeny
with regard to secondary effects caused by sexually oriented businesses.
II.
Whether the city’s ordinance regulating sexually oriented businesses is a
content-based restriction on speech in the wake of this Court’s decision in
Reed v. Town of Gilbert – U.S. (2015).
i
TABLE OF CONTENTS
QUESTIONS PRESENTED………………………..……………………………………i
TABLE OF CONTENTS………………………..………………………………………ii
TABLE OF AUTHORITIES………………………..………………………………….iv
STATEMENT OF JURISDICTION…………………………………...…………........vi
STATEMENT OF CASE ………………………………………………..…...………....1
SUMMARY OF THE ARGUMENT …………………………………..…..….……….2
ARGUMENT ………………………………………………….………...……....……….4
I.
THE CITY OF PLEASANTVILLE FAILED TO MEET THE
STANDARD UNDER RENTON AND ITS PROGENY BECAUSE THE
EVIDENCE USED IS NOT REASONABLY RELATED TO THE
SECONDARY EFFECTS AND THE GOVERNMENT FAILES TO
PROVIDE
FURTHER
STUDIES
SUPPORTING
ITS
RATIONALE…...............................................................................................4
A. The Study Relied Upon is Not Reasonably Related to the City of
Pleasantville’s Ordinance …………………………………………………..7
1. Pleasure Palace Offers Off-Site Entertainment……………………..8
2. The Study Does Not Reasonably Relate to the City’s Restriction on
SOBs …………………………………………………………………...9
B. The City of Pleasantville Has Not Experienced a Significant Adverse
Secondary Effect as a Result of Pleasure Palace………………………….11
C. The Court’s Failure to Provide Guidance on the Evidentiary Standard
Allows the City of Pleasantville to Inadequately Substantiate the
Restrictions Placed Upon Pleasure Palaces’ Right to Free Speech……….12
II.
THE CITY OF PLEASANTVILLE’S ORDINANCE REGULATING
SEXUALLY-ORIENTED BUSINESSES IS A CONTENT-BASED
REGULATION UNDER REED, BECAUSE IT DISCRIMINATES
AGAINST SEXUALLY-ORIENTED CONTENT……………………….13
A. Reed’s “Content Neutral On its Face” Inquiry Must Be Applied to the
City of Pleasantville’s Ordinance………………………………………….15
ii
B. The City of Pleasantville’s Ordinance Is Content Based On Its Face…...17
C. The City of Pleasantville’s Ordinance Restricting the Operation of SOBs
Has a Presumption of Unconsitutionality and It Is Not Necessary and
Narrowly Tailored to Further the City’s Compelling Interest of Crime
Reduction and Property Value…………………………………………….18
CONCLUSION …………………….…………………………………..………............20
iii
TABLE OF AUTHORITIES
Annex Books, Inc. v. Indianapolis,
581 F. 3d 460 (2009)………………………………………………………………………8
Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991)……………………………………………………………….6, 14, 15
Base Corp v. Consumer Union,
466 U.S. 485 (1984) ………………………………………………………………………4
BBL, Inc. v. City of Angola,
809 F.3d 317 (7th Cir. 2015) ……………………………………………………………16
Boos v. Barry,
485 U.S. 312 (1988) ……………………………………………………………………..16
Center for Fair Public Policy v. Maricopa County, Arizona,
336 F. 3d 1153 (9th Cir. 2003) …………………………………………………………..10
City of Erie v. Pap’s A.M.,
529 U.S. 277 (2000) ………………………………………………………………...passim
City of L.A. v. Alameda Books, Inc.,
535 U.S. 425 (2002) ………………………………………………………………...passim
DiMa Corp. v. Town of Hallie,
185 F.3d 823 (7th Cir. 1999) ……………………………………………………………..7
Encore Videos, Inc. v. City of Antonio,
300 F. 3d 288 (5th Cir. 2003) …………………………………………………………8, 9
Fantasyland Video v. County of San Diego,
505 F. 3d 996 (9th Cir. 2007) …………………………………………………………...11
Imagery Images, Inc. v. Evans,
612 F.3d 736 (4th Cir. 2010) ……………………………………………………………11
New Albany DVD, LLC v. City of New Albany, Ind.,
581 F. 3d 556 (7th Cir. 2009) ………………………………………………………….5, 8
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) ………………………………………………………………………4
Reed v. Town of Gilbert, Ariz.,
135 S.Ct. 2218 (2015) ………………………………………………………………passim
iv
Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986) ………………………………………………………………….passim
Richland Bookmart, Inc. v. Knox County, Tenn.,
555 F. 3d 512 (6th Cir. 2009) …………………………………………………………….9
Richland Bookmart, Inc. v. Nichols,
137 F. 3d 435 (6th Cir. 1998) …………………………………………………………...10
Sorrell v. IMS Health, Inc.,
564 U.S. 552 (2011) ……………………………………………………………………..13
Star Satellite, Inc. v. Biloxi,
779 F. 2d 1074 (5th Cir. 1986) ………………………………………………………….10
World Wide Video, Inc. v. City of Tukwila,
117 Wash. 2d 282, 816 P.2d 18, 21 (1991) ………………………………………………8
Young v. American Theatres, Inc.,
427 U.S. 50 (1976) ………………………………………………………………………..5
CONSTITUTIONAL PROVISIONS
U.S. Const. amend. I. ……………………………………………………………………..4
U.C. Const. amend. XIV. …………………………………………………………………4
OTHER AUTHORITIES
Daniel R. Aaronson, et. al, The First Amendment in Chaos: How the Law of Secondary
Effects is Applied and Misapplied by the Circuit Courts, 63 U. MIAMI L. REV. 741 (April
2009) ………………………………………………………………………………….5, 12
David L. Hudson, Jr., The Secondary Effects Doctrine: “The Evisceration of First
Amendment Freedoms,” 37 WASHBURN L. J. 55 (Fall 1997)………………………….4, 12
David Hudson, Jr. The Secondary Effects Doctrine: Stripping Away First Amendment
Freedoms, 23 STAN. L. & POL’Y REV. 27 (2011)……………………………………14, 15
v
STATEMENT OF JURISDICTION
A Formal Statement of Jurisdiction has been omitted in accordance with the Rules
of the Washington College of Law’s Burton D. Weschler First Amendment Moot Court
Competition.
vi
STATEMENT OF THE CASE
Summary of the Facts
Sam Snodgrass (“Snodgrass”) operates an adult novelty store called Pleasure Place, LLC
(“Respondents”) in the City of Pleasantville (“Petitioner”). R. at 1. The store sells a variety of
adult-oriented materials such as sex toys, CDs, and DVDs of pornographic material. R. at 1–2.
Since the opening of Pleasure Palace, there have been no violent crimes reported and only a few
shoplifting incidents and calls to the police. R. at 2.
Several residents of Pleasantville objected to the presence of adult businesses and
requested an ordinance regulating sexually oriented businesses (“SOB”). R. at 2. The Petitioner
enacted an ordinance entitled “Regulation of Sexually Oriented Businesses” (“Ordinance”),
providing that: (1) “adult businesses must not be located within “500 feet of any existing adult
business, a residence, a church, a school, a playground, or day-care center;” (2) the business
“may not be open for business before 9:00 a.m. and must close by 12:00 a.m. Mondays through
Saturdays;” (3) “must not be open before 12:00 p.m. and must close by 9:00 p.m. on Sundays;”
and (4) all employees at a sexually oriented business must obtain a license to work at such stores.
R. at 3–4. The Ordinance’s preamble stated that SOB’s can cause harmful secondary effects
such as the increase in crime associated with prostitution, public indecency, obscenity, and
sexual exploitation; and decreasing property values.
Additionally, Petitioner cited in its
preamble that the Ordinance is served to prevent neighborhood blight. R. at 2–3. The Petitioner
relied on studies from Detroit and Los Angeles that examined the impact of SOB’s. The studies
concluded that when SOB’s are grouped together in a particular place, it will attract crime and
harmful secondary effects to the city. R. at 3. However, the City of Pleasantville has not
experienced any significant crime near the Pleasure Palace and the police calls are frequently
made to the twenty-four hour bar and convenience store. R. at 13.
1
Summary of the Proceedings
The parties filed cross-motions for summary judgment. R. at 5. On August 15, 2015, the
United States District Court for the District of Tenley improperly held that City Officials have
the right to regulate SOB’s through the secondary effects. R. at 1. Accordingly, the District
Court denied Pleasure Palace, LLC’s and Sam Snodgrass’ motion for summary judgment. R. at
1. On November 3, 2015, the parties argued in front of the Thirteenth Circuit Court of Appeals
and the case was decided on April 14, 2016. R. at 10. The Thirteenth Circuit properly reversed
the decision of the District Court and remanded the case to grant the Appellants motion for
summary judgment. R. at 18. In its opinion, the Thirteenth Circuit improperly held that the
court should apply intermediate scrutiny for this type of regulation since the City of Pleasantville
is basing its regulation on secondary effects. R. at 16. However, the Thirteenth Circuit properly
that the City’s evidence was not adequate to prove the adverse secondary effects. R. at 18. In the
concurring opinion, Judge Gonzalez writes that the city ordinance should be evaluated under
strict scrutiny as a content-based restriction on speech. R. at 18.
The City of Pleasantville appealed the Thirteenth Circuit Court of Appeals’ opinion. R. at
20. The Court granted certiorari to consider the issues on record. R. at 20.
SUMMARY OF THE ARGUMENT
The City of Pleasantville failed to provide adequate evidence that reasonably relates to
the problem associated with the secondary effects within the city. The Supreme Court held in
Renton and Alameda that a city must provide evidence that is reasonably related to the problem
or its rationale. Additionally, if the Plaintiff casts direct doubt as to the city’s rationale, the
government’s burden shifts and it must provide further evidence.
Pleasure Palace, LLC
primarily sells sexually oriented material for off-site consumption. The City of Pleasantville
provided evidence from the City of Los Angeles and Detroit for problems associated with on-site
2
entertainment. The studies relied upon by the city does not meet the Renton standard and its
progeny regarding secondary effects.
Primarily, the study is conducted by other cities and does not differentiate between offsite and on-site consumption of adult entertainment.
The Ordinance also provides several
restrictions such as hours of operation, location, and licensing requirements that is not addressed
in the study. Furthermore, the Pleasure Palace, LLC is able to cast direct doubt to the City’s
rationale because Pleasantville has not experienced any adverse secondary effects.
This whole analysis is being brought into question by the United States Supreme Court
decision, Reed v. Town of Gilbert, Ariz. In Reed, the Court establishes that before a regulation
avails itself of intermediate scrutiny as opposed to strict scrutiny, the regulation has to be
content-neutral on its face. Accordingly, if the regulation is content-based on its face, there is no
legal fiction that can prevent the regulation from facing strict scrutiny. Because the City of
Pleasantville’s Ordinance treats sexually-oriented businesses differently than any other type of
business, the Ordinance is content-based on its face and must survive strict scrutiny.
Under strict scrutiny, a presumption of unconstitutionality will be raised and will only be
defeated after a showing that the suppression of speech was necessary and narrowly tailored to
further a compelling City’s interest. Herein, crime reduction and property values are compelling
interests, but because the City relied on other city’s studies to prove the secondary effects of
Pleasure Palace, although narrowly tailored, it is not necessary. A necessary suppression of
protected speech requires a showing that the censored speaker is producing harmful secondary
effects. Because the Ordinance is not necessary to further the compelling interest of the City, it
fails strict scrutiny and is unconstitutional.
3
ARGUMENT
The First Amendment provides that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend. I. This protection is expanded to State action through
the Fourteenth Amendment. US Const. amend. XIV. Federal appellate courts review a grant of
summary judgment in First Amendment cases de novo. Base Corp v. Consumer Union, 466 U.S.
485, 499 (1984). The Court must independently examine the entire record to ensure that the
“judgment does not constitute a forbidden intrusion on the field of free expression.” N.Y. Times
Co. v. Sullivan, 376 U.S. 254, 285 (1964).
Sexually implicit speech is entitled to protection under the First Amendment. City of
Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000). First Amendment laws distinguish speech that is
sexually implicit by either speech that is based on content or content-neutral. See David L.
Hudson, Jr., The Secondary Effects Doctrine: “The Evisceration of First Amendment Freedoms,”
37 WASHBURN L. J. 55 (Fall 1997) (describing the impact of sexually implicit speech in First
Amendment jurisprudence) (hereinafter Hudson I). Government may justify restrictions on
sexually implicit speech by utilizing the adverse impact of secondary effects, so long as the
regulation does not limit speech. Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
I.
THE CITY OF PLEASANTVILLE FAILED TO MEET THE STANDARD
UNDER RENTON AND ITS PROGENY BECAUSE THE EVIDENCE USED IS
NOT REASONABLY RELATED TO THE SECONDARY EFFECTS AND
THE GOVERNMENT FAILS TO PROVIDE FURTHER STUDIES
SUPPORTING ITS RATIONALE
The secondary effects doctrine has played an important role in the regulation of sexually
oriented businesses that feature exotic dance bars, adult bookstores, and adult movie theatres.
Hudson I, supra, at 55. If the government provides evidence of the secondary effects of an SOB,
the content-based restriction is justified, and analyzed as a content-neutral regulation. Renton,
4
475 U.S. at 48. The Supreme Court has provided a vague standard as to what is appropriate
evidence for a regulation based on adverse secondary effects. Consequently, due to the many
regulations held on account of the secondary effects doctrine, this type of unpopular expression
has been predominantly banned. Daniel R. Aaronson, et. al, The First Amendment in Chaos:
How the Law of Secondary Effects is Applied and Misapplied by the Circuit Courts, 63 U. MIAMI
L. REV. 741, 742 (April 2009). Several local governments have addressed problems associated
with secondary effects, such as: injuries to the neighborhood, low property values, and high
criminal activity. See Renton, 475 U.S. at 48 (regulating an SOB based off of the effects of the
livelihood of the community); City of L.A. v. Alameda Books, Inc., 535 U.S. 425 (2002) (basing
the regulation off of increased crime rates); New Albany DVD, LLC v. City of New Albany, 581
F. 3d 556 (7th Cir. 2009) (regulating a SOB due to evidence of higher crime and lower property
values).
The doctrine of secondary effects began with Young v. American Theatres, Inc., 427 U.S.
50, 72 (1976) (noting that a city’s interest must be regarded with “high respect”). Introduced as a
footnote, the Court determined that a geographical limit to a theatre that displayed movies of
sexual content was permissible, because it did not constitute a total ban, and was targeted, not at
the speech itself, but instead at the pursue of the reduction of crime and property values. Id. at
71. However, the Supreme Court did not address the evidentiary standard until Renton v.
Playtime Theatres, Inc. Renton, 475 U.S. 41 (1986). The Supreme Court in Renton upheld the
use of studies from other cities and stated:
“The First Amendment does not require a city, before enacting such an ordinance,
to conduct new studies or produce evidence independent of that already generated
by other cities, so long as whatever evidence the city relies upon is reasonably
believed to be relevant to the problem that the city addresses.”
Id. at 51–52.
5
Furthermore, in Barnes v. Glen Theatre, Inc., Justice Souter enhanced the Renton
standard by allowing a municipality enact an ordinance without any evidentiary findings or
studies regarding the secondary effects of SOB’s offering live nude entertainment. Barnes v.
Glen Theatre, Inc., 501 U.S. 560, 583–584 (1991). The Supreme Court reached a similar
conclusion in City of Erie v. Pap’s A.M. where the plurality allowed evidence conducted by
council members introducing their personal knowledge of the adverse secondary effects. Erie,
529 U.S. at 206. However, Justice Souter, who also wrote the majority opinion in Barnes,
dissented by stating that the evidence provided needs to be concrete facts, not mere opinions. Id.
at 301–302
The last time the Supreme Court addressed the evidentiary standard for secondary effects
was in City of L.A. v. Alameda Books, Inc. Alameda, 535 U.S. at 425. The Court in Alameda
stressed the need for evidence that does not rely on “shoddy data or reasoning” and the
“municipalities evidence must fairly support the municipality’s rationale for its ordinance.” Id. at
449. The Court further noted that if the SOB casts direct doubt as to the municipals rationale, the
municipality has the burden to provide further support of its findings. Id.
Based upon the most recent decisions, the Supreme Court has failed to address an
adequate standard and guidance for what evidence may be used to address secondary effects.
See Renton, 475 U.S. at 61–62 (noting Justice Brennan’s dissenting opinion requesting a more
strict approach for government and municipalities). However, under the current evidentiary
principles set forth by the Supreme Court, the Thirteenth Circuit properly held that the City of
Pleasantville did not meet the standards set forth by the Supreme Court in Renton and its
progeny.
6
A. The Study Relied Upon Is Not Reasonably Related to City of Pleasantville’s
Ordinance
The City of Renton enacted an ordinance that “prohibited adult motion theaters to be located
within 1000 ft. of a residential zone . . ., church, park, or school” to combat the secondary effects
and preserve the quality of life in the city of Renton. Renton, 475 U.S. at 43. In enacting the
ordinance, the city used evidence from Seattle and Detroit, held public hearings, and received a
report from the City Attorney’s Office, citing developments of other cities. Id. at 44. There was
no ordinance enacted of its kind in the City of Renton and the Supreme Court held that it was
sufficient for the city to use the study from Seattle and Detroit, even though those cities chose a
different method of zoning restrictions. Id. at 47.
In the dissent, Justice Brennan notes that the evidence cited by Renton was not sufficiently
related for comparing the adverse secondary effects of SOB’s. Id. at 60. Justice Brennan stated
that Renton never actually reviewed the evidence cited by Detroit and Seattle in order to
determine whether such evidence was related to the problem at hand. Id. Additionally, Renton
could not reasonably rely on general expectations of such studies because both cities resulted in
different zoning ordinances than Renton. Id.
The City of Pleasantville used a study from two different jurisdictions – the city of Los
Angeles and the City of Detroit. R. at 12. The study specified ordinances restricting live nude
dancing and the different problems associated with those businesses, such as: “prostitution, the
spread of sexually transimitted diseases, increased crime, vagrancy, littering, and illegal drug
use.” R. at 12. The circuit courts have held that the government cannot reasonably rely on a
study conducted in a different location and a distinct approach as to how they will circumvent the
secondary effects. See DiMa Corp. v. Town of Hallie, 185 F.3d 823, 831–832 (7th Cir. 1999)
(holding that the problems differed from city to city, therefore, the city could not rely on the
7
study). In this case, the City of Pleasantville, much like Renton and Dima Corp., did not review
the evidence to see if it was related to the problems cited. Although the study cites to similar
problems, it does not provide a reasonable presumption that the Ordinance addresses the
secondary effects.
1. Pleasure Palace offers off-site entertainment
The Supreme Court in Alameda and Renton have held that “proof of [secondary] effects
is essential if municipalities regulate establishments differently from the way they regulate other
similar businesses.” New Albany DVD, LLC v. City of New Albany, Ind., 581 F. 3d 556, 559 (7th
Cir. 2009). Sexually-oriented business that offer off-site consumption differ from those that
offer on-site consumption. Encore Videos, Inc. v. City of Antonio, 300 F. 3d 288 (5th Cir. 2003).
On-site consumption SOBs are presumed to cause more adverse secondary effects. Id. “If
consumers of pornography cannot view the materials at the sexually oriented establishments,
they are less likely to linger in the area and engage in . . . other undesirable activities.” World
Wide Video, Inc. v. City of Tukwila, 117 Wash. 2d 282, 816 P.2d 18, 21 (1991). In New Albany,
Encore, and Annex Books, Inc. v. Indianapolis, 581 F. 3d 460 (2009), the government provided
evidence from other cities regarding the different secondary effects associated with a business
who primarily offers live nude entertainment. See New Albany, 581 F. 3d 560 (noting that the
expert witness conceded that the studies from different cities only provided evidence of live
entertainment); Encore, 300 F. 3d 295 (explaining that the studies do not differentiate or exclude
on-site and off-site business); Annex, 581 F. 3d 463 (offering evidence of the secondary effects
of live nude entertainment). The circuit courts in these cases have held that the city’s failed to
establish the evidentiary standard under Renton and Alameda because they failed to provide
sufficient evidence of the “secondary effects of establishments that sell adult products solely for
8
off-site consumption.” Encore, 300 F. 3d 295. A city must provide sufficient evidence to
support their rationale behind the restrictions set forth in a business who primarily sells for offsite consumption. Richland Bookmart, Inc. v. Knox County, Tenn., 555 F. 3d 512, 519 (6th Cir.
2009).
Respondent sells “consenting adults” CDs, DVDs of pornographic movies, sex toys, and
“a variety of other adult-oriented material.” R. at 11. Respondent does not offer any sort of live
entertainment such as nude dancing, stage dancing, or lap dances. Id. The Ordinance enacted by
the City of Pleasantville does not distinguish between businesses that are on and off-site. Id.
The city does not provide any other evidence that distinguishes those type of businesses other
than the study conducted by the City of Los Angeles and Detroit. The Ordinance cites several
problems associated with SOB’s such as prostitution, excessive concentration of SOBs, impacts
to the community, and other tangible harms. R. at 12–13. The City of Pleasantville failed to
reasonably rely on such a study because on-site and off-site businesses presents different effects.
The study does not reasonably relate, consider, or resolve the problem pursued by the Ordinance
relating to businesses that offer off-site entertainment.
Therefore, since on-site businesses
present other harmful secondary effects, the City of Pleasantville did not meet the standard under
Renton and Alameda.
2. The Study Does Not Reasonably Relate to the City’s Restriction on SOBs.
Ordinances regulating SOB’s carry a number of restrictions, such as: licensing
requirements, limitation on where an SOB may be located in relation to schools, residential
zones, and churches, hours of operations, and a amortization period. The rationale behind these
restrictions include depleted police resources during the nightly hours, increased crime and
vagrances that hinder community values, safety, increased drug use, and overall decrease in the
9
quality of life. See Center for Fair Public Policy v. Maricopa County, Arizona, 336 F. 3d 1153
(9th Cir. 2003) (limiting the hours of operation based on a fact sheet presented with fourteen
studies and testimony relating to the secondary effects solved by limiting the hours of
operations). “The initial burden of the government is not a heavy one: the entity issuing the
regulation ‘must have had a reasonable evidentiary basis for concluding that its regulation would
have the desired effect.” Richland, 555 F. 3d 523 (citing to Alameda, 535 U.S. at 451, stating:
“very little evidence is required to justify the secondary effects doctrine.”)
The “very little evidence” justification has yet to be fully defined by the Court. Circuit
courts have primarily allowed evidence from another state whereby the city restricting hours of
operation used several studies regarding that specific secondary effect. Richland Bookmart, Inc.
v. Nichols, 137 F. 3d 435, 442 (6th Cir. 1998). In Biloxi, the city regulated an SOB with a
restriction on location, certain hours of operations, and licensing requirements. Star Satellite,
Inc. v. Biloxi, 779 F. 2d 1074, 1075 (5th Cir. 1986). The court accepted the evidence submitted
by the city, upholding their rationale based on testimony from the community and public
hearings. Id.
Based upon the “shoddy data and reasoning” requirement, the City of Pleasantville failed
to meet the standards under Renton and its progeny because it used a study from the City of Los
Angeles and Detroit that did not address all of the Ordinances’ restrictions. The Ordinance
places a restriction on the hours of operation and the geographical location, in addition to a
licensing requirement for all employees. R. at 3-4. The study conducted by the City of Los
Angeles and Detroit simply discusses the problems associated with live nude entertainment. The
study does not discuss whether such problems may be reasonably related to restricting the hours
of operation of a business, the proximity of such businesses, or a licensing requirement for all
10
employees. As noted earlier, those distinctions are important because different the secondary
effects will vary from on-site and off-site adult entertainment businesses. Thus, the City of
Pleasantville failed to provide data that supports their rationale that the secondary effects will be
addressed by regulating SOB’s.
B. The City of Pleasantville Has Not Experienced a Significant Adverse Secondary
Effect as a Result of Pleasure Palace.
In Alameda, the Court tried to distinguish whether an ordinance prohibiting SOB’s within
1000 feet from another and 500 ft from a school or church is rationally related to a study
regarding a concentration of businesses. Alameda, 535 U.S. at 429. The circuit court held it was
not rationally related to multiple-use establishments. Id. at 435. However, the Supreme Court
mentioned that neither the 9th circuit or the Plaintiff failed to provide evidence questioning the
municipality’s reasoning. Id. at 437. Only if the Plaintiff is able to cast doubt, will the
municipality bring further evidence to support its rationale. Id. at 439. The Court in Alameda
did not provide a guidance on the evidentiary burden the Plaintiff and the government must meet,
the Court simply concluded that the municipality met the Renton standard. (noting that don’t
want to steer to far from the Renton precedence so long as the government does not present
“shoddy data or reasoning”). Other circuit courts have held that “the Plaintiff must offer actual
and convincing evidence” and “must discredit the foundation upon which the government’s
justification rests.”
Imagery Images, Inc. v. Evans, 612 F.3d 736, 747 (4th Cir. 2010).
Additionally, the courts have held that the Plaintiff must address every evidentiary point.
Fantasyland Video v. County of San Diego, 505 F. 3d 996, 1002 (9th Cir. 2007).
Respondent can provide data that can casts direct doubt toward the City of Pleasantville’s
rationale. The City of Pleasantville has not experienced any significant crime, vagrancy, or
11
loitering outside of Pleasure Palace. R. at 13. Police calls are more frequent to the 24-hour bars
and convenient stores than they are to Pleasure Palace.
R. at 13.
However, the City of
Pleasantville addresses several criminal problems associated with SOBs. Based on the City’s
low crime rate, Respondent is able to cast direct doubt towards the rationale that an off-site
SOBs is associated with several adverse secondary effects. The burden next shifts to City of
Pleasantville to provide evidence further supporting its rationale. Although there is no strict
standard, the evidence must still meet Renton and its progeny. In this case, City of Pleasantville
will be unable to provide further evidence supporting its contention because the study conducted
by the City of Los Angeles and Detroit fail to adequately address its rationale behind off-site
businesses.
Therefore, the City of Pleasantville has also failed to meet its burden under
Alameda.
C. The Court’s Failure to Provide Guidance on the Evidentiary Standard Allows the
City of Pleasantville to Inadequately Substantiate the Restrictions Placed Upon
Pleasure Palaces’ Right to Free Speech
The lack of guidance from the Supreme Court has provided “little or no scrutiny” to
whether the government has provided a problem actually “tied” to SOB’s. Daniel R. Aaronson,
supra, at 758. The Court in Renton and Alameda have provided the government with a lenient
evidentiary standard, whereas the Plaintiff must provide more evidence to cast direct doubt on
the municipality’s rationale in support of the regulation. “The doctrine has much seductive
appeal because it allows government officials to claim they are not directly restricting speech but
merely regulating certain secondary effects that correlate with speech.” Hudson I, supra.
The lack of guidance from the Supreme Court has lead the City of Pleasantville to bring
“shoddy data and reasoning” based on studies that are not related to off-site businesses. A city
trying to limit speech should not have a lenient standard based on studies from different cities
12
that do not relate to the business. Additionally, it is presumptively unfair for the Respondent to
have such a high standard that can hardly be met when their right to free speech is being limited.
These unfair standards have led the lower courts with many distinct approaches and evidentiary
holdings. Due to the misguided standards, Pleasure Palace should not be held by such “shoddy
data and reasoning” and be restricted in their right to free speech.
II.
THE CITY OF PLEASANTVILLE’S ORDINANCE REGULATING
SEXUALLY-ORIENTED
BUSINESSES
IS
A
CONTENT-BASED
REGULATION UNDER REED, BECAUSE IT DISCRIMINATES AGAINST
SEXUALLY-ORIENTED CONTENT
Government cannot restrict an expression solely because of its message, ideas, subject
matter, or content. Reed v. Town of Gilbert, Ariz., 135 S. Ct. 2218, 2226 (2015) (citing Police
Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972)). If a regulation targets speech based on its
communicative content, the regulation is deemed “content-based.” Id. at 2226 (citing R.A.V. v.
St. Paul, 505 U.S. 377, 395 (1992)). In determining if a certain regulation is “content-based,”
courts will have “to consider whether a regulation of speech ‘on its face’ draws distinctions
based on the message a speaker conveys.” Sorrell v. IMS Health, Inc., 564 U.S. 552, 565 (2011).
Content-based regulations “are presumptively unconstitutional and may be justified only if the
government proves that they are narrowly tailored to serve compelling state interests.” Reed, 135
S. Ct. at 2226 (citing R.A.V. v. St. Paul, 505 U.S. 377, 395 (1992)).
On the other hand, if the government’s regulation is facially content-neutral, such as
regulations involving a proper time, place, and manner in which the expression is made, the
regulations will be upheld by the Court so long “as they are designed to serve a substantial
governmental interest and do not unreasonably limit alternative avenues of communication.”
Renton, 475 U.S. at 47 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293
13
(1984)). Although, content-neutral regulations which cannot be justified without referencing its
content, or that have been promulgated because of a disagreement with the message, will receive
a heightened scrutiny. Reed, 135 S. Ct. at 2227.
The Supreme Court created a third, hybrid category of regulations, usually city
ordinances aiming at restricting SOBs. Renton, 475 U.S. at 47. Sometimes understood as a
category of itself, or seen as an exception to the content-based analysis, these types of
regulations are confronted with intermediate scrutiny (the same as content-neutral regulations)
because the regulation is not seeking to suppress the expression but rather, fight the secondary
effects of such expressions. (See generally Alameda, 535 U.S. at 425; Renton, 475 U.S.at 41;
Barnes, 501 U.S. at 560; and Erie, 529 U.S at. 277). The Court “specifically refused to set such
a high bar for municipalities that want to address merely the secondary effects of protected
speech.”
Alameda, 535 U.S. at 426 (citing Renton, 475 U.S. at 51-52).
This line of
jurisprudence has been known as the secondary effects doctrine. See David Hudson, Jr. The
Secondary Effects Doctrine: Stripping Away First Amendment Freedoms, 23 STAN. L. & POL’Y
REV. 27 (2012). (hereinafter Hudson II)
The City of Pleasantville is aiming to prevent the alleged harmful secondary effects of
Respondent’s SOB. R at 2. As such, the city is relying on the secondary effects doctrine in order
to enact such a prohibition on protected speech. Under Renton, a reviewing court should apply
intermediate scrutiny to the regulation. However, a recent decision by the Supreme Court
limited the breadth of the secondary effects doctrine. (See generally Reed, 135 S.Ct. at 2218).
The Court, nevertheless, left open the question of whether such limits should adversely affect the
application of the secondary effects doctrine to regulations limiting SOBs.
14
A. Reed’s “Content-Neutral On Its Face” Inquiry Must Be Applied To the City
of Pleasantville’s Ordinance
The secondary effects doctrine has not been immune to critics and ambiguity. As soon as
the secondary effects doctrine took center stage in Renton, Justice Brennan called the reasoning
misguided; refusing to see the ordinance as content-neutral because “the ordinance impose[d]
special restrictions on certain kinds of speech on the basis of content.” Renton, 475 U.S. at 57
(Justice Brennan dissenting.) Even more telling, Justice Stevens who wrote both the opinions for
Young and Alameda (introducing the doctrine and defining its most used evidentiary standard
prior to Reed) has become a vocal dissenter. As the Court authorized a complete ban on nude
dancing, Justice Stevens dissented in Erie: “[f]or the first time, the Court has now held that such
effects may justify the total suppression of protected speech. Indeed, the plurality opinion
concludes that admittedly trivial advancements of a State's interests may provide the basis for
censorship.” Erie, 529 U.S. at 317 (Justice Stevens dissenting.)
Justice Souter has also had a change of heart. After writing the opinion for Barnes,
Renton’s first expansion, Justice Souter also dissented in Erie. In a lamenting dissent the Justice
expressed:
“I should have demanded the evidence then, too, and my mistake calls to mind
Justice Jackson's foolproof explanation of a lapse of his own, when he quoted
Samuel Johnson, “ ‘Ignorance, sir, ignorance.’ ” I may not be less ignorant of
nude dancing than I was nine years ago, but after many subsequent occasions to
think further about the needs of the First Amendment, I have come to believe that
a government must toe the mark more carefully than I first insisted. I hope it is
enlightenment on my part, and acceptable even if a little late.)
Id. at 318 (Justice Stevens dissenting.)
Furthermore, when the Court elaborated a three step analysis in Alameda, the Court was
criticized for being too lenient with the municipalities and placing a very rigid standard on SOBs
pursuing their First Amendment Rights. See Hudson II, supra at 19.
15
The secondary effects doctrine has also found difficulty moving outside the realm of
SOBs. The Supreme Court declined the secondary effects reasoning in a ban of political speech.
Boos v. Barry, 485 U.S. 312, 313–14 (1988) (rejecting the argument that the regulation did not
violate the First Amendment because the target was not the suppression of speech, rather, the
mitigation of secondary effects by implementing the international law duty of shielding
diplomats from speech that offends them). The ordinance was deemed content-based and did not
survive strict scrutiny. Barry, 485 U.S. at 313–314 (1988).
It is within the context of Justices unable to reach unanimity, the decision of Reed was
reached. Reed, 135 S. Ct. at 2226.
The Court in Reed re-elaborated the distinction between
content-based and content-neutral regulations and the level of scrutiny each of them requires. Id.
Even though the case did not involve a sexually-oriented speech, the Court mentioned that in
order for a regulation to be deemed as a proper time, place, and manner regulation, it must first
be content-neutral on its face. Id. at 2228.
The Seventh Circuit Court of Appeals argued, in a footnote, argued that Reed was not
meant to involve the application of the secondary effects doctrine on SOBs. BBL, Inc. v. City of
Angola, 809 F.3d 317, 326 (7th Cir. 2015). According to BBL Inc., the secondary effects
doctrine as applied to SOBs constitutes an exception to the content-based protections. Id.
Because Reed is only reinstating the general rule, Reed should not apply. Id.
Notwithstanding the above, it is worth mentioning that the secondary effects doctrine has
not been unanimously recognized as an exception to the content-based analysis. Renton, 475
U.S. at 47 (The Court not treating the secondary effects doctrine as an exception but rather as a
separate category between content-based and content-neutral);
Alameda, 535 U.S. at 448
(Justice Kennedy concurring and finding the secondary effects doctrine application on SOBs a
16
“legal fiction.”) Furthermore, Justice Breyer’s dissenting opinion in Reed expresses his concern
for the influence that Reed has in cases regarding restrictions on SOBs. Reed, 135 S. Ct. at 2238
(dissenting opinion arguing that the court should have the discretion to apply strict scrutiny in
cases like Boos, but should be able to apply an intermediate scrutiny in cases like Renton).
Justice Breyer expressing concern towards Renton demonstrates that even though it was not
discussed in the opinion, the effects of Reed on the SOBs were at least contemplated and
foreshadowed by the Court.
It is for these reasons, that Petitioner should not be able to escape the Reed test. If
Petitioner sought the city ordinance to be weight against intermediate scrutiny, the evaluating
court must first determine that the ordinance is content-neutral on its face.
B. The City of Pleasantville’s Ordinance Is Content-Based On Its Face
The City of Pleasantville enacted an ordinance regulating SOBs. R. at 2. The Preamble
of the Ordinance is a testament to the City’s intention. R. at 2–3. The City drafted the Preamble
as a good faith belief that they were not targeting speech, but the harmful secondary effects of
increased crime and decreased property values that SOBs produce. R. at 2. However, before
weighing the intentions and interest of the City, a reviewing court must first determine if the
ordinance is content-based or neutral-based on its face. Reed, 135 S. Ct. at 2226. Despite the
preamble, if the Ordinance is found to be content-based, a presumption of unconstitutionality
shall rise and the Ordinance will have to survive strict scrutiny. Id at 2227.
Both lower courts supported the argument that the Ordinance was a proper time, place,
and manner regulation and applied intermediate scrutiny. R. at 6, 16. However, according to
Reed, the analysis is incomplete; “this analysis skips the crucial first step in the contentneutrality analysis: determining whether the law is content-neutral on its face.” Reed, 135 S. Ct.
at 2228. The Court in Reed reiterates that the only way that a suppression of speech can avail
17
itself of intermediate scrutiny is by being content-neutral on its face. Id. By the same rationale,
if a regulation is content-based on its face, it “is subject to strict scrutiny regardless of the
government's benign motive, content-neutral justification, or lack of ‘animus toward the ideas
contained’ in the regulated speech.” Id. Finally, the Court eliminates the fiction created by the
secondary effects doctrine, and holds than “an innocuous justification cannot transform a facially
content-based law into one that is content-neutral.” Id.
The Ordinance defines SOBs as “any business in which 30% of its inventory consists of
adult-oriented materials of a sexual nature.” R. at 3 Sexually-oriented content like the one found
in adult books, magazines, and videos are considered a type of speech protected by the First
Amendment. Erie, 529 U.S. at 289. The City, through the ordinance, then proceeds to limit this
kind of protected speech by imposing a specific zoning demarcation, a licensing requirement for
all employees, and a limit on the hours and days of operation for SOBs. R. at 3–4. On its face,
the ordinance treats SOBs differently than any other type of business. Businesses that do not fall
within the category of SOBs can operate freely disregarding the zoning demarcation or limits
that the ordinance imposes on hours and days of operation.
R. at 3–4.
Because of this
distinction, the City of Pleasantville’s Ordinance discriminates on its face against SOBs. The
United States Court of Appeals for the Thirteenth Circuit both in the majority and dissenting
opinion support the findings that the ordinance is content-based on its face. R. at 16, 19. If the
ordinance is content-based on its face under Reed, then it must survive strict scrutiny or be found
unconstitutional
C. The City of Pleasantville’s Ordinance Restricting the Operation of SOBs Has a
Presumption of Unconstitutionality and It Is Not Necessary and Narrowly Tailored
to Further The City’s Compelling Interest of Crime Reduction and Property Value.
In the wake of Reed, if a regulation is found to be content-based on its face it will face
strict scrutiny.
Reed, 135 S. Ct. at 2226.
The regulation will have a presumption of
18
unconstitutionality and will only survive if it is a necessary suppression of speech and has been
narrowly tailored to further a city’s compelling interests. Id.
The City of Pleasantville through the ordinance’s preamble, enunciates the interests the
City is pursuing. R. at 2–3, 12–13. The City’s interests are the reduction of crime and threats
associated with “prostitution, potential spread of sexually transmitted disease, public indecency,
obscenity, and sexual exploitation;” and the harm to property values due to neighborhood
blight.” R. at 12. Indeed, these are two compelling interests on behalf of the City.
However, the fact that the interests are important and compelling to the City is not
sufficient to defeat the presumption of unconstitutionality. For the ordinance to survive, the
suppression has to be necessary and narrowly tailored to further the City’s compelling interests.
Reed, 135 S. Ct. at 2226.
One of the biggest differences between strict scrutiny and intermediate scrutiny is that in
order to survive the former one, the suppression has to be necessary to further the compelling
interest. Under intermediate scrutiny, the suppression only needs to be substantially related to an
important interest so long as it does not unreasonably suppress other means of communication.
Renton, 475 U.S. at 47. Under intermediate scrutiny, the Court allowed cities to rely on previous
studies or other city’s studies to prove that the suppression was substantially related. Id. at 45;
Alameda, 535 U.S. at 426. The shift in scrutiny that Reed brings to city ordinances suggests a
higher evidentiary hurdle for any city seeking suppression of protected speech. The necessity of
the suppression will have to be a factual determination to be made case-by-case. After all, this
rationale will not be satisfied by proving that the suppressed speaker shares traits or propensities
with similarly situated speakers, which produce harmful secondary effects. In order to satisfy
19
strict scrutiny, the suppressor must prove it is the actual suppressed speaker the one producing
the harmful secondary effects; otherwise the suppression will not be necessary.
Since the opening of Pleasure Palace, there hasn’t been a single violent crime inside or
near the Respondent’s SOB. R. at 2. Of the minor incidents that have been reported, the vast
majority are related to shoplifting, an issue that is unrelated to the secondary effects of SOBs. R.
at 2. As well intended as it might be, the Ordinance enacted by the City of Pleasantville in the
regulation of SOBs is not necessary, for Respondent’s SOB does not produce the secondary
effects the enactment seeks to prevent.
Under Reed, this Court must find the ordinance
unconstitutional as an unjustified violation to the protection that the First Amendment has
granted the Respondent.
CONCLUSION
For the foregoing reasons, Respondent respectfully request this Honorable Court affirm
the Court of Appeals for the Thirteenth Circuit and remand this case to the District Court for the
District of Tenley with instructions to grant Respondent’s Motion for Summary Judgment.
20