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Donate Now. In Register. Filed: April 15th, Precedential Status: Precedential. Citations: F. Docket : Argued Oct. Decided Feb. Jerry H. Summers argued and briefedJimmy F. Rodgers, Jr. William S. Parker, Jr. The plaintiffs below--a corporation operating a nightclub devoted to erotic dancing, the corporation's sole shareholder, and two of its employees--brought suit under 42 U. After a bench trial, the district court ened the City from enforcing portions of its licensing system, but upheld the ordinance in all other respects.
The plaintiffs appeal from that judgment, and we affirm. Inthe Chattanooga Board of Commissioners enacted an ordinance to regulate "adult-oriented establishments," which were defined to include, inter alia, both "adult cabarets," or public facilities that feature employees who expose their breasts, buttocks, or genitals to public view, and "adult bookstores," or bookstores that also offer films or live entertainment that depict certain defined "sexual activities" or "anatomical areas. The City made a of legislative findings, most of which referred to the health risks inherent in the sexual activities that it believed to be commonplace in adult bookstores within Chattanooga.
However, it did not limit its findings to adult bookstores, but instead found that all adult-oriented establishments posed health risks, and that such Diamonds and lace chattanooga tn "create[ ] conditions that generate prostitution and other crimes. Accordingly, the ordinance established a regulatory system applicable to both adult bookstores and adult cabarets.
It required such facilities to be d by the City, id. It also imposed a series of other obligations on adult-oriented establishments, including a ban on "sexual intercourse or oral or anal copulation or other contact stimulation of the genitalia," id. After the enactment of the ordinance, several proprietors of adult-oriented establishments brought suit to challenge it on First Amendment grounds.
Judge R. Broadway Books, Inc. Roberts, F. Judge Edgar applied Renton v. Playtime Theatres, Inc. However, Judge Edgar found that the City had failed to provide a sufficient rationale for the requirements that a e be a resident of Chattanooga, see Ordinance No. Broadway Books, F. The City responded to the district court's order by amending the ordinance to strike the offending requirements for es, and also to strike the corresponding requirements for permit holders. Ordinance No. Inthe City Council enacted an amendment to the ordinance, which sparked the litigation before us.
The amendment changed the ordinance in four respects. First, it revised the definition of "adult cabaret" to mean. Adult cabarets shall include commercial establishments which feature entertainment of an erotic nature including exotic dancers, strippers, male or female impersonators, or similar entertainers. Chattanooga, Tenn.
Second, whereas the ordinance originally only required entertainers to obtain permits, the amendment expanded that requirement to all employees of adult-oriented establishments. Third, the amendment revised the wording of the ban on sexual intercourse. Finally, and most importantly for this appeal, the amendment added a new provision:. The Proceedings Below.
Shortly after the amendment was enacted, the plaintiffs filed a complaint in the United States District Court for the Eastern District of Tennessee challenging the constitutionality of the ordinance in its entirety. Judge Edgar was ased again to hear the case. On July 12,following a five-day bench trial, the district court again upheld the ordinance in most respects, finding that the ordinance was directed to content-neutral purposes and that most of the provisions were narrowly tailored.
DLS, Inc. City of Chattanooga, F. However, the court held that the and permit procedures established by the ordinance were unconstitutional in four particulars. Accordingly, the district court ened the City from enforcing those provisions.
DLS, F. On July 19,the plaintiffs filed a notice of appeal from the judgment of July The defendants did not cross-appeal. Subsequently, the City Council amended the ordinance to limit the disclosure requirements to majority shareholders, to provide for judicial review and decisional time limits in all proceedings, and to provide for maintenance of the status quo in revocation proceedings.
The defendants filed a motion to dissolve the injunction, which the plaintiffs did not oppose.
The district court granted that motion on September 5, The plaintiffs have not appealed from that order. Two of the plaintiffs in this case--DLS, Inc. The district court--again, Judge Edgar--granted the plaintiffs a preliminary injunction against the enforcement of the last-named enactment. That case was then transferred by the Judicial Panel on Multidistrict Litigation to the Middle District of Tennessee for consolidation with a series of other suits that challenged the constitutionality of the Tennessee statute. After that transfer, Judge Robert Echols dismissed the complaint in its entirety.
Only Judge Edgar's judgment is before us in this appeal, and we do not consider the merits of plaintiffs' other lawsuit. The complicated nature of the proceedings below and of the arguments before us have rendered it necessary for us to clarify the issues that we consider to be properly before this court for decision.
The plaintiffs purported to challenge the ordinance in its entirety in their complaint, and at several points reiterated that intent to the district court. However, with Diamonds and lace chattanooga tn exception of a few specific provisions, the plaintiffs provided only conclusory statements to the district court in their trial brief, post-trial brief, and various motions. As the district court put it. Plaintiffs, in shotgun fashion, have challenged virtually every paragraph, jot, and title [sic: tittle] of the Ordinance as being either vague, overbroad, subject to unbridled discretion, or some other constitutional infirmity.
Several of the provisions about which the plaintiffs complained have ly been upheld by this Court. Plaintiffs have presented nothing that warrants revisiting these determinations. Plaintiffs have continued the shotgun approach on appeal, firing conclusory arguments haphazardly, in the hope that some part of the ordinance may be crippled. While plaintiffs' counsel stated at oral argument that plaintiffs wished to challenge the entire ordinance, they confined their attack before us to the manner in which the most recent amendment was enacted.
See Foster v. Barilow, 6 F. We discuss each category in turn. As described above, the ordinance as amended prohibits entertainers from approaching within six feet of Diamonds and lace chattanooga tn, employees, or other entertainers during a performance, and requires all such performances to occur on a stage that is at least eighteen inches high.
The plaintiffs argue that the requirement of a six-foot buffer zone does not satisfy the First Amendment test laid out in United States v. O'Brien, U. The defendants argued both before this court and before the district court that the erotic dancing at issue here does not qualify as speech at all, citing dicta in City of Dallas v.
Stanglin, U. The district court expressed its doubt that the dances were speech, but believed that Barnes v. Glen Theatre, Inc. We read Barnes differently. Justice Souter argued in his concurring opinion--which, as the opinion concurring in the judgment on the narrowest grounds, is binding on this court, see Triplett Grille, Inc. City of Akron, 40 F. However, he based that argument on a review of the record before him in that case:. But dancing as a performance directed to an actual or hypothetical audience gives expression at least to generalized emotion or feeling, and where the dancer is nude or nearly so the feeling expressed, in the absence of some contrary clue, is eroticism, carrying an endorsement of erotic experience.
Such is the expressive content of the dances described in the record. Barnes, U. We read Justice Souter's opinion not to state that all similar activities are speech as a matter of law, but instead to leave open the possibility that, on a different record, some activities may be considered not to be expressive at all.
We consider it appropriate to determine whether speech is implicated on a case-by-case basis as a question of fact, given the broad range of activities that may be governed by this ordinance or laws similar to it. At one extreme, such laws might prohibit a performance of the Dance of the Seven Veils in Strauss's Salome, "everyone's favorite example of constitutionally protected striptease.Diamonds and lace chattanooga tn
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