content based adult entertainment ordinances let me ask you this when we show this case all the white i don't isn't your primary argument in this case that justice thomas whose opinion and read has china the standard and that now strict scrutiny applies to cases like the two ordinances like this and stead of intermediate scrutiny is that really what this guy should all about that is the primary issue in this he that is our main submission district court erred in the not recognizing that the landmark decision in read now requires all facially content based ordinances including like the ones of sandy springs to what you do with them is recognize that reid undermined all of those prior decisions to the point of abrogation let me just read one little passage from reed which cannot be squared with the prior cases read and i think this is the most fundamental holding in the case in the one that i think demonstrates how broad and how bright a line this is a law that is content based on its face is subject to strict scrutiny regardless of the government's but nine motive content neutral justification or lack of animus toward the ideas contained in the speech but i mean it seems like in order for us to do what you're asking us to do they have to find that read abrogated the secondary facts doctrine yes but the supreme court did not address that in the majority opinion in read and the supreme court precedent says that it's up to the supreme court to decide when its prior cases have been so that's seems like a big problem but had how do we how do you propose we get past that because the secondary effects doctrine is nothing more than a benign motive content neutral justification or lack of animist toward the ideas contained in the speech away but wasn't raised by justice  ok and the fact that it's raised by justice kagan in her separate opinion and not addressed by the supreme court doesn't that seem like it might there might be a meaning there behind that which is we're not abrogating we're aware of our secondary effects the action of course we would be aware even if justice kagan hadn't announced it but clearly they're aware of the second effect secondary effects doctrine but we're not abrogating it we're not mentioning it we're not doing majority opinion in no way qualified the bright line test that it established i i read that is demonstrating just how much of a sea change read represents as many of the commentators and courts of that i mean you mean you may ultimately turn out to be right but that's not what i'm asking you right now justice kagan is the one who wrote that separate opinion there were it did not command five votes so it seems like that's a problem well except that she wrote that again my view is that by her pointing out that the majority opinion casts doubt upon other not just written but several other cases that she cited where she suggested that the court had applied less than strict scrutiny and yet the majority nonetheless despite that being pointed out to them did nothing to qualify their language or to provide justification for the town of gilbert ordinance that was posited and that was found meritorious by the ninth circuit was basically a secondary effects argument the ninth circuit found that the ordinance was content n neutral precisely because it was aimed not at the content of the expression that was going to be on the signs but rather the external problems that are caused by sun the secondary effects that are caused by  science remember that the the ordinance itself was part of the land use code in the town of gilbert many of the the sign case of the supreme court that the lower courts have decided have cited the secondary effects cases of renton as justifying intermediate screw and vice versa so what was rejected by the supreme court was the notion that the secondary effects of signs namely the fact that they cause traffic problems and the static problems and they can clutter the highways those have nothing to do with content those are secondary effects of signs and that's exactly the basis upon which regulations of science have historically been treated under intermediate scrutiny and that's the basis for the ninth circuit's decision to uphold the town of gilbert signboards and that's the exact thing that the supreme court said sorry that no longer applies it doesn't matter that the government it did not  by the secondary effects doctrine of renton has only explicitly been applied to zoning ordinance there are three cases young versus american many theaters was  zoning case city detroit renton itself was a zoning ordinance by that city l me to books was in los angeles zoning ordinance and justice kennedy in his concurring opinion that is regarded as the controlling opinion specifically noted that it was precisely the fact that it was the zoning context that justify treating what otherwise would be a content based ordinance as intermediate scrutiny because the zoning context itself has a built in rationale that rebuts the normal presumption that content based ordinances are unconstitutional so if before he got there he was explaining why he would apply intermediate scrutiny rather than strict scrutiny even though the los angeles ordinance appeared to be cussed on its face he said that's really a fiction to call it content neutral but because  context gives the context and rebuts the normal presumption it's for that reason that we apply intermediate rather than strict my point is that if you put aside the zoning regulation in the sandy springs ordinances and you focus on the other regulations that were challenging for example the separation of alcohol and constitutionally protected new dancing renton and all meta books do not address that those are addressed by two supreme court cases barnes and erie versus perhaps am but what's important about those two k this is those were statutes that were content neutral on their face the indiana statute in barnes prohibited going nude in public everywhere had nothing to do with expression didn't mention expression had an incidental effect on new dancing however o'brian was applied in barns precisely because it was a content neutral statute that applied only to conduct much like the federal statute prohibiting destroying your draft card had an incident dental effect on o'brien's burning his draft card to express his opposition to the vietnam war but so they applied o'brien because that was content neutral fast forward to paps again the city of hereis ordinance was content neutral it was an absolute ban on going nude in public and that's why they applied the o'brian intermediates rudest and in fact justice o'connor at the end of her opinion said it is worth repeating that facially the ordinance under attack there is content neutral applies only to conduct and never and doesn't have any expressive element so what i'm saying is that if renton if the secondary effects doctrine of renton survives read that only applies to the location in zon doesn't apply when you're talking about a regulation that is outside the zoning context such as the separation of alcohol and constitutionally protected new dancing in the context of a set of ordinances which is entirely totally content based and is geared precisely to the live adult performance entertainment performed on stage in by adult entertainers in adult position well the circuit agreed with me partially and i argued that case the free speech versus attorney general they applied read to change their position on rehearing and hold that read required strict scrutiny of a federal criminal statute that required record keeping and labeling for sexually explicit visual depictions now they said that the they didn't necessarily think renton was overruled but they said it was limited they thought to the zoning context and to the content neutral public nudity ordinances in erie and and in barns versus glenn theater that were applied to the adult nightclubs but they said reed was a sea change and they reversed a prior opinion on rehearing that had applied intermediate scrutiny to these federal criminal statutes the government in that case argued that the secondary effects doctrine of renton still justified intermediate scrutiny in that case the department of justice who argued and the third circuit rejected that in its reported opinion and said no that didn't justify not following read when it comes to the applying strict uphold the same rule separating alcohol from live new conduct most recently last month in the cornell restaurant ventures versus city of oakland park case cited in our supplemental authority this is an a for sure he case many of those ordinances including the oakland park ordinance the manatee county ordinance in the peekaboo lounge case the daytona beach ordinances and the daytona grant case actually banned live new the by requiring at least pay stephen g strings to cover the dancers to add some actual impact on the speech here live news he can't continue the speech fares better under this this is less restrictive because once the alcohol is separated you can have totally live new dancing before you ever get to the read question which is flawed on six different levels but before we get to that we have to look at how these adult clubs are regulated they're regulated by a definition that yes uses adult entertainment in the name of the ordinance and in the title however adult entertainment as defined as live conduct characterized by the display of specified in time a core areas nudity and just like barnes and iurie nudity is defined without regard to conduct that is inherently expressive people that are sitting on a totally new dancers sitting on a guy's lab with our breasts in his face is adult entertainment out of this ordinance even if she's not dancing even if there's no expression taking place so he's wrong about free speech coalition i'll get to the third circuit decision in a minute but this definition as the district court explained it pages sixty six to sixty seven of her one hundred five page opinion addressing all of these claims on its face the adult clubs are not regulated by reference to speech that is expressive even if they were like the bookstore and we'll get to that separately but even if they were then the renton rule applies and judge carnes is directed to judge cars directly on point with the fact that under the prior precedent rule we can't just say that there are reasons in read that were undermined if it doesn't explicitly overrule the secondary effects doctrine the language of the rule is very clear it says if a precedent of the supreme court has direct application in a case yet appears to rest on reasons rejected in some other line of decisions the court of appeals should follow the case which directly controls leading to the supreme court the parotid of overruling its own decisions that that's exactly what we have here that's  even if the more recent cases suggest that the supreme court will reach a contrary result like judge rosen by saying that even if it portends something like that in the future we have to follow the prior precedent and then the main drug case says obedience to supreme court's decisions is one thing but extrapolating from the holding of the supreme court to change the rule of law into up and settled circuit president on an issue that was not even before the supreme court in that intervening case is a totally separate thing and that's exactly what they're arguing for here and let me address two things first justice kagan's concurrence justice kagan's concurrence she would have decided that read case under intermediate scrutiny she thought the town of gilbert's ordinance failed intermediate scrutiny all she said in that block paragraph with a string citation as the district court in our case recognized it was just to see also reference to renton was look the supreme court has not been totally can we are cases have not been totally consistent with regard to this argument or this rule that content based regulations always trigger strict screwed me renting was just one of those the commercial speech cases which this court as you know in the walsh later case and others has refused to jump into even to say that those but let me make a more textual argument we know that the cases that directly control is most recently the books case and justice kennedy's controlling concurrence every one of this cases this court six cases on new dancing and alcohol in the last ten years have recognized that justice kennedy's controlling opinion is the rule of law none of them have imposed the type of rule that mr murray argues for and in that opinion he said content based regulations usually trigger group strict scrutiny but there are exceptions to the rule let's look at how reid deals with those cases first read sides mosley versus the chicago police department for the proposition that the government has no power to restrict expression because of its message well that's the exact same case that the renting case itself in one thousand nine hundred sixty eight cited mosley and then it said yet renton secondary effects writing regulation is completely consistent with our content neutral regulations being those that are justified by reference without without reference to the content of the regulated speech so renton or reed also cited a second case which is our a v vs city of st paul let's look at that case in one thousand nine hundred two justice scalia's opinion for the court says content based regulations usually trigger strict strict scrutiny but there are exceptions to the rule and he cites renton this court just last  railroad supply said the same thing in a commercial speech case typically content based regulations trigger strict scrutiny but that rule is quote unquote not absolute finally the reed case cites simon and schuster versus new york state victims crime board while they cited that case for the proposition that content based regulations tricks trigger strict scrutiny but that's the same case that justice kennedy in his controlling concurrence in alameda book cited in the paragraph opinion for the principle that content neutral speech regulations are those that are justified without reference to the content the regulated speech so it is clear but i don't have to catalog every case in the read opinion but it is clear that both before and after rent in the supreme court had these categorical rules about what is content based on what is strict scrutiny but the secondary effects doctrine has occupied its own line of cases and has been an exception to that rule as recognized in numerous cases now let's talk about this argument that let's just apply read and or limit zoning cases to zoning or the adult entertainment secondary effects doctrine to zoning cases that's inherently flawed for a lot of reasons number one the first new dancing case that my opposing counsel mentioned was the barnes case and barnes explicitly relied on young vs american many theaters which was an adult zone in case and on around ten runtime was decided in one thousand and six young was the barnes case was decided in one thousand nine hundred one ten years later in two thousand and perhaps am versus city of erie the supreme court again relied on renting explicitly for regulation targeting dancing and so these cases are intermixed if you get to alameda books the morse and most recent supreme court decision on secondary facts the plurality opinion cites barnes versus glenn theater in its opinion and justice kennedy said it's erie so these secondary effects can doctoring cases and that's true  every one of this and the eleventh circuit cases which are legion that rely on both those doctrines together judge to being a noted that the seventh circuit in the b b l vs angola case which is a case that i argued as well as mr murray's case in the third circuit on free speech coalition both agree that renton did not up and the same or that reed did not and the secondary effects doctrine and destroy the settled circuit precedent across the country or supreme court precedent he says well they made this argument it's only limited to zoning it's only limited to the general public nudity cases well not so first of all even when he knew the regulation like this one which on its face is content neutral is embedded in adult entertainment case it's still receives only intermediate scrutiny and that's the court's decision in fly fish versus city of cocoa beach which was decided by the eleventh circuit in two thousand and three but free speech coalition doesn't say free speech coalition says we're not going to say that the secondary if it were but the majority and the dissent said that that secondary effects doctrine of renton has not been undone didn't even really say that it's been totally undermined what they said is that renting has applied to brick and mortar stores and he said they cite the zoning in the new cases where there's a physical if stablish meant that's be regulated by state or local government he said this that they said this case is about the production of actual sexually explicit speech because congressional regulations that issue there said that when you create a sexually explicit media you have to keep these records about the age of the performers and that's a direct regulation on the production of the actual speech going out into the marketplace and they said  don't need to address that issue but we don't think renton has been undermined or undone both the majority and the senate agreed on that so i think the court certainly understands the issues very clearly that this is governed by the prior precedent rule the supreme court even in the cases that are cited and read there are a series of cases that recognize renton is an exception the rule and that's why the circuit courts of appeals who have addressed this issue have not said that renton has been undone and also why this court when it was test i don't need to belabor that long but she's address this for several pages that pages eighty nine to ninety five of the district court mr murray i made it to her and hear that it's been rejected in every case where that theory has been proffered and it certainly has not been how this court has just read justice kennedy's controlling opinion in alameda books as imposing a higher standard sensually they misread justice kennedy's concurrence they ignore the five point cases and they realize that buying into their economic impact theory would totally undo the doctor and that's why i ran to the originally in one thousand nine hundred six said the first and then is not for first amendment purposes the inquiry is not concerned with economic impact justice  proportionality language if it applies it focused on the rationale of the ordinance issue in that case in los angeles they had a zoning rule that separated protected adult speech which was adult retail media items being sold at retail and adult booze that were showing those videos in peep show ok those had to be separated from one another he said the city's premise the rationale cannot be that the ordinance will force a closure of the business and thereby reduce the secondary effects here that standard has been satisfied the ordinance says the alcohol exacerbates secondary effects this involves unprotected conduct the consumption of alcohol being separated from live nude conduct which is not inhere but can be protected if it's if it's new dancing separating those two that does not suppress the speech itself separating the alcohol in the language of justice kennedy's controlling opinion so it's a no intrinsic limitation on speech and this court in the wise enterprise's cases in two thousand and in the same ease of moby ok so in one thousand nine hundred one said look separating alcohol from new dancing doesn't have any impact on the expression it doesn't the expression doesn't turn on the presence of consuming alcohol and therefore it satisfies the constitutional standard in fact the expression fares better in justice kennedy's when he was then in daytona grande and the other or i think the six dealt with that best in entertainment productions where they said any reduction in iraq speech is not because of an intrinsic limitation on the speech and the ordinance itself but because play is economic choice to is to invest elsewhere and on the issue and this is why they don't engage just on the evidence on the exacerbating impact of the alcohol and the negative secondary effects and the prostitution in the drugs and the crime that was even admitted to by the plaintiff's own managers that's why you open this brief in our first appellate argument is that they concede by not arguing that if this court follows its precedence in daytona grant they just can't win and that's the economic argument really goes back to renton the in for economic purposes is not concerned with or for some in the purpose is not concerned with economic impact that certainly was not overturned and just think about how the lack of a limiting principle on that would wreak havoc that means that people go in to engage in sex they're showing pornographic videos or a rule that this court and other courts have upheld where you have to have open direct line of sight so people can monitor the illegal activities or make sure they don't occur that makes the booth less attractive this is what the ninth circuit said in the fantasy land video case rejecting the same argument from mr murray the seller case that we argued against each other in the missouri supreme court did the same thing they said look that may make it less attractive because people can gauge in the secondary effects that they want to engage in but that's what the government has a right to reduce and that's why justice kennedy's proportionality principle doesn't apply when unprotected conduct and protected expression merge in the same forum if there is a reduction in speech it's only because you're targeting secondary effects while leaving the honor justice kennedy's concurrence says that the an adult ordinance must have both the purpose and effect of reducing secondary effects while leaving the quantity and accessibility of speech substantially intact now the evidence in this case was on rebutted unrefuted that the separation of alcohol and adult entertainment will lead to the closure of the only adult entertainment businesses in the city and will not only  diminish the constitutionally protected entertainment that is offered there it will erode it to the point where it is nonexistent now justice kennedy was concerned to a certain extent with economic impact because remember what he said you had an adult book store under the los angeles ordinance that had both a retail section and a video arcade the ordinance required them to separate justice kennedy said the theory has to be that one of these businesses move rather then one will close because if it's the latter then the ordinance is unconstitutional because it's no trick to reduce secondary effects by reducing the amount of speech or reducing the audience  first so the only so that affect not just the purpose but the effect of the ordinance in los angeles was going to have to be ultimately shown one where the other a trial that the adult arcade within the retail establishment would that all the courts including the eleventh circuit have agreed that justice kennedy's concurring opinion is the controlling one because the other like the fact that it's controlling doesn't make everything  it the opinion of the supreme court well except that that's the that's where he parted ways with the plurality opinion it's on that precise point he says that the political opinion did not take into account how speech will fare under it's the opinion that is the narrowest and all the courts have said justice kennedy's concurring opinion is the one that counts because his fifth vote was necessary for the outcome of the case so so yes i think it's fair that i don't even think that mr berthold disagrees with this that i just it was necessary to the extent of what the result was but it doesn't mean that the reasoning was adopted by five members or no it doesn't but that's the whole mark's rule is that when you don't have an opinion that commands five justices then the opinion that counts is the one that that ruled on the narrowest ground i can't remember the feature but they said justice kennedy's vote was the one that counts then for purposes of the marks rule because and because there was no five justice majority for anything so his concurring opinion is the is the ruling in the case and i think every circuit that is considered the question has agreed that his concurring opinion is the controlling opinion in elmina books and that's why we're arguing that under his opinion you do have to take into account whether the effect of an ordinance that applies to a business that is always operated alcohol with new dancing and they say nope can't operate the way you've always operated that that's the combination the