IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-30292

JANE DOE I; JANE DOE II; JANE DOE III, 

 Plaintiffs - Appellees

v.

JEFF LANDRY, Attorney General for the State of Louisiana, 

 Intervenor - Appellant

JUANA MARINE-LOMBARD, in her official capacity as Commissioner, 

Louisiana Office of Alcohol and Tobacco Control, 

 Defendant - Appellant

Appeal from the United States District Court

for the Eastern District of Louisiana

Before STEWART, Chief Judge, CLEMENT, and SOUTHWICK, Circuit 

Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

In 2016, Louisiana amended two statutes to require that entertainers on 

premises licensed to serve alcohol and whose breasts or buttocks are exposed 

to view be 21 years of age or older. Three erotic dancers aged 18, 19, and 20

filed a complaint against the state official responsible for the Act’s 

enforcement, claiming the Act violated various provisions of the United States 

United States Court of Appeals

Fifth Circuit

FILED

September 20, 2018

Lyle W. Cayce

Clerk

 Case: 17-30292 Document: 00514650492 Page: 1 Date Filed: 09/20/2018
No. 17-30292

2

and Louisiana Constitutions. The district court concluded that the plaintiffs 

were likely to succeed on the merits of their claims that the Act is 

unconstitutionally overbroad and vague. It left other issues for later resolution 

but issued a preliminary statewide injunction barring enforcement of the Act. 

The State brought this interlocutory appeal. We disagree with some of the 

district court’s reasoning as to whether the Act was narrowly tailored, but we 

agree that the statute is vague. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

This lawsuit involves Act No. 395 from the 2016 regular session of the

Louisiana legislature. The Act identically amended two Louisiana statutes

that regulate activities on premises licensed to serve alcohol, adding a

requirement that certain performers be at least 21 years old:

Subject to the provisions of Subsection D of this Section, 

entertainers whose breasts or buttocks are exposed to view shall 

perform only upon a stage at least eighteen inches above the 

immediate floor level and removed at least three feet from the 

nearest patron and shall be twenty-one years of age or older.

LA. REV. STAT. §§ 26:90(E), 26:286(E) (2016) (emphasis added). The only 

significant difference between the two statutes is that Section 26:90 regulates 

those who sell or serve typical alcoholic beverages, while Section 26:286 

regulates those who sell or serve beverages of low-alcoholic content. Compare

§ 26:90(A)(1)(a), with § 26:286(A)(1)(a). Even though the pre-2016 version of 

Subsection E did not refer to age at all, the parties agree that erotic dancers 

previously had to be at least 18 years old. See §§ 26:90(E), 26:286(E) (2010).

We will give more detail later, but for now we simply point out that 

neither before nor after the Act became effective were erotic dancers permitted

to be completely nude. That is because another statutory provision limits what 

may be “exposed to view;” a dancer must at least be wearing, to use the terms 

 Case: 17-30292 Document: 00514650492 Page: 2 Date Filed: 09/20/2018
No. 17-30292

3

of art, G-strings and pasties. §§ 26:90(D)(3); 26:286(D)(3). One of the issues in 

the case is how much covering is needed beyond that minimum for performers 

who are under age 21.

The Act became effective August 1, 2016. The Louisiana Office of Alcohol 

and Tobacco Control (“ATC”) soon began enforcing the Act’s age requirement 

throughout Louisiana, except in New Orleans. It planned to begin enforcing 

the age requirement there on October 1, 2016.

In September 2016, three female erotic dancers who were at least 18 

years old but not yet 21 filed a complaint in the United States District Court 

for the Eastern District of Louisiana against Juana Marine-Lombard in her 

official capacity as Commissioner of the ATC. The plaintiffs sought injunctive 

and declaratory relief under 42 U.S.C. §§ 1983 and 1988, claiming that the Act

facially violated the First and Fourteenth Amendments to the United States 

Constitution and Article I, Sections 2, 3, and 7 of the Louisiana Constitution.

Plaintiff Jane Doe I was 20 years old when the complaint was filed. She 

is a resident of New Orleans and is employed as an erotic dancer in that city. 

Jane Doe I alleged she began dancing at age 18, “highly values the scheduling 

control her vocation allows her, and . . . enjoys expressing herself through 

dancing.” In addition, she contended that as an erotic dancer, she earns 

enough money to meet her financial obligations and to save for her retirement, 

which she was unable to do prior to working as an erotic dancer. Jane Doe I

asserted that in October 2016, when the Act was to be enforced in New Orleans, 

she would no longer be permitted to be employed as an erotic dancer.

Jane Doe II was 18 years old when the complaint was filed. She is a 

resident of Baton Rouge and a student at Louisiana State University. She 

claimed to be entirely independent, as both of her parents died of cancer. Jane

Doe II began working as an erotic dancer in June 2016 “in order to finance her 

college education and living expenses.” She desired “to save enough money 

 Case: 17-30292 Document: 00514650492 Page: 3 Date Filed: 09/20/2018
No. 17-30292

4

over the summer through her work as a dancer so that at the start of the school 

semester, she could concentrate fully on her studies.”

Jane Doe II stopped performing as an erotic dancer as of the Act’s

effective date. She began working as a “shot girl,” which is a server that

circulates throughout the establishment and offers patrons shots of alcohol for 

purchase. She contended that her income decreased by more than fifty percent

when she stopped being a dancer and began working as a shot girl. Jane Doe 

II also argued that because of the Act she lost the ability to express herself 

through erotic dance.

Jane Doe III was 19 years old when the complaint was filed. She is a 

resident of New Orleans and began working as an erotic dancer in September 

2015. She was employed as an erotic dancer in Baton Rouge from January 

2016 until the Act went into effect. Jane Doe III contended that on the date 

the Act became effective in Louisiana, she was forced to stop working as an 

erotic dancer and began working as a shot girl at the club where she formerly 

danced. Her income also allegedly dropped by more than half.

The plaintiffs moved for a preliminary injunction, requesting that the 

district court enjoin Commissioner Marine-Lombard from enforcing the Act. 

On September 30, 2016, the district court entered a temporary restraining 

order prohibiting Commissioner Marine-Lombard from enforcing the Act

anywhere within the state of Louisiana.

On November 3, 2016, Jeff Landry intervened in the lawsuit in his 

official capacity as Attorney General for the state of Louisiana. Commissioner 

Marine-Lombard and Attorney General Landry (collectively, “the State”) then 

filed separate responses to the plaintiffs’ motion for preliminary injunction. 

The district court treated the separate responses as a single opposition because 

they addressed separate arguments that the plaintiffs had asserted in their 

motion.

 Case: 17-30292 Document: 00514650492 Page: 4 Date Filed: 09/20/2018
No. 17-30292

5

The district court determined that Act 395 was overbroad and vague

under the federal Constitution. The remainder of the plaintiffs’ claims were 

left for later resolution. The court enjoined the enforcement of the Act. The 

State timely brought an interlocutory appeal, citing 28 U.S.C. § 1292(a)(1),

which allows appeals from the grant of injunctions. The court later instructed 

its clerk to stay and administratively close the case pending the appeal.

DISCUSSION

We review a district court’s decision to grant a preliminary injunction for 

abuse of discretion, but we review its findings of fact for clear error and its 

conclusions of law de novo. Jefferson Cmty. Health Care Centers, Inc. v. 

Jefferson Par. Gov’t, 849 F.3d 615, 624 (5th Cir. 2017). Plaintiffs are entitled 

to a preliminary injunction if they show (1) a substantial likelihood that they 

will prevail on the merits of their claims, (2) a substantial threat that they will 

suffer an irreparable injury if the injunction is not granted, (3) their threatened 

injury outweighs the threatened harm to the State, and (4) the public interest

will not be disserved if the preliminary injunction is granted. Lake Charles 

Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195–96 (5th Cir. 2003). 

Much of what follows addresses the likelihood of plaintiffs’ success on the 

merits. After reviewing the individual claims, we will discuss the remaining 

elements that must be shown for an injunction.

This case comes to us with a few uncontested premises. The parties do 

not dispute that “nude dancing is not without its First Amendment protections 

from official regulation.” Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 

(1981). “[N]ude dancing of the type at issue here is expressive conduct, 

although . . . it falls only within the outer ambit of the First Amendment’s 

protection.” City of Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000) (plurality 

opinion). It is also uncontested that, prior to the Act, individuals age 18-20 

 Case: 17-30292 Document: 00514650492 Page: 5 Date Filed: 09/20/2018
No. 17-30292

6

could perform as entertainers with their breasts or buttocks exposed to view at

alcohol-licensed establishments in Louisiana. Finally, it is undisputed that in 

Louisiana some sexually-oriented businesses are licensed to serve alcohol and 

others are not; the rules we are discussing apply to those serving alcohol.

The disputes are these. The State contends that the plaintiffs have not 

shown a substantial likelihood of success on the merits of their overbreadth 

claim because the district court failed to find real and substantial overbreadth 

and failed to consider the State’s limiting construction. The State further

argues that the plaintiffs cannot show a substantial likelihood of success on 

their vagueness claim because no plaintiff has standing to bring a facial 

vagueness challenge and because the Act’s text plainly reveals what conduct is 

prohibited by the Act. The plaintiffs assert that strict scrutiny should apply 

and that the Act should be enjoined on free expression or equal protection 

grounds if it is not enjoined because of overbreadth or vagueness.

The first issue we discuss, because it affects much of what follows, is 

whether strict or intermediate scrutiny applies to these claims.

I. Level of scrutiny

The district court determined that the Act was not a content-based 

restriction. Accordingly, it applied intermediate scrutiny as opposed to the 

almost certainly invalidating strict scrutiny. We analyze whether that was 

correct.

“The statute’s predominant purpose determines the level of scrutiny.” 

Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 308 (5th Cir. 2007). 

Intermediate scrutiny is “routinely” applied to regulation of alcohol at 

sexually-oriented businesses. Id. at 307. The district court determined that 

the predominant purpose of the Act was similar to that of other “alcohol 

regulations aimed at combating the harmful secondary effects of nude 

 Case: 17-30292 Document: 00514650492 Page: 6 Date Filed: 09/20/2018
No. 17-30292

7

dancing.” The Act had no legislative preamble to explain its purpose, but such 

a preamble or legislative history is not required to support a content-neutral 

purpose. See id. at 310. The district court relied on our holding in IllusionsDallas that a predominant purpose for legislation regulating alcohol can 

properly be identified by the statute’s text and its placement within a code of 

statutes regulating alcohol. See id. at 308. 

Another “routine” and identical holding applicable to similar legislation

as that in Illusions-Dallas was in Baby Dolls Topless Saloons, Inc. v. City of 

Dallas, 295 F.3d 471, 484–85 (5th Cir. 2002). We held there that the burden 

on expression is incidental to the content-neutral exercise of authority to 

regulate the sale of alcohol. Id.

The plaintiffs quote statements from two state legislators to support 

their view that this was a content-based restriction based on a view of morally 

acceptable conduct. The views of individual legislators as to their special 

interest in a legislative enactment, however, do not override our clear caselaw

such as Illusion-Dallas that a regulation such as this is generally not content 

based and is entitled to intermediate scrutiny. That is the scrutiny we apply.

II. Narrow tailoring/facial overbreadth

We need to be careful with terms. A statute regulating conduct with 

incidental effects on speech can be a reasonable restriction if, among other 

things, it is narrowly tailored to serve substantial governmental interests. Hill 

v. Colorado, 530 U.S. 703, 725–26 (2000). Such caselaw applies to freeexpression claims “when ‘speech’ and ‘nonspeech’ elements are combined in the 

same course of conduct, [and] a sufficiently important governmental interest 

in regulating the nonspeech element can justify incidental limitations on First 

Amendment freedoms.” United States v. O’Brien, 391 U.S. 367, 376 (1968).

These requirements are met “so long as the neutral regulation promotes a 

 Case: 17-30292 Document: 00514650492 Page: 7 Date Filed: 09/20/2018
No. 17-30292

8

substantial government interest that would be achieved less effectively absent 

the regulation.” United States v. Albertini, 472 U.S. 675, 689 (1985).

A different concept is this: “the overbreadth doctrine enables litigants ‘to 

challenge a statute not because their own rights of free expression are violated, 

but because of a judicial prediction or assumption that the statute’s very 

existence may cause others not before the court to refrain from constitutionally 

protected speech or expression.’” Hill, 530 U.S. at 731–32 (quoting Broadrick 

v. Oklahoma, 413 U.S. 601, 612 (1973)). Further, “particularly where conduct 

and not merely speech is involved, we believe that the overbreadth of a statute 

must not only be real, but substantial as well, judged in relation to the statute’s 

plainly legitimate sweep.” Broadrick, 413 U.S. at 615. Obviously, both areas 

of First Amendment law are concerned with statutes that regulate speech more 

than necessary. The concepts are distinct, though.

The district court here ruled that the Act failed the fourth factor of a 

time, place, and manner precedent. See O’Brien, 391 U.S. at 377. We place 

O’Brien in that category because the Supreme Court itself did, describing the 

four-factor test announced in O’Brien as “little, if any, different from the 

standard applied to time, place, or manner restrictions.” Clark v. Community 

for Creative Non-Violence, 468 U.S. 288, 298 (1984). The O’Brien test sustains 

a statute’s validity:

[1] if it is within the constitutional power of the Government; [2] if 

it furthers an important or substantial governmental interest; 

[3] if the governmental interest is unrelated to the suppression of 

free expression; and [4] if the incidental restriction on alleged First 

Amendment freedoms is no greater than is essential to the

furtherance of that interest.

O’Brien, 391 U.S. at 377. It was the fourth factor — does a restriction 

governing conduct have an incidental restriction on speech that is greater than 

necessary — that the district court here held was not satisfied. Its analysis of 

that factor was expressed as “overbreadth.” Labeling wider-than-necessary 

 Case: 17-30292 Document: 00514650492 Page: 8 Date Filed: 09/20/2018
No. 17-30292

9

tailoring as overbreadth is grammatically reasonable but doctrinally 

conflating. It risks merging O’Brien with the different doctrine of overbreadth. 

To be clear, we find no error in the terminology per se, but we will be alert here 

to the application of the appropriate caselaw.

A more common use of the term “overbreadth” in First Amendment 

analysis allows plaintiffs whose rights are not violated to show that “a 

‘substantial number’ of [the law’s] applications [to other individuals] are 

unconstitutional, ‘judged in relation to the statute’s plainly legitimate sweep.’”

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 

449 n.6 (2008) (quoting New York v. Ferber, 458 U.S. 747, 769–71 (1982)). As 

we have explained, “the rationale of the overbreadth doctrine is to protect the 

expressive rights of third parties who are not before the court.” United States 

v. Hicks, 980 F.2d 963, 969 (5th Cir. 1992) (emphasis omitted). 

We start with a discussion of this special version of the standards for 

judging time, place, and manner restrictions. The district court stated that the 

parties disagreed as to whether O’Brien should be applied specifically or 

whether a more relevant test was a hybrid1 employed in Illusions-Dallas, 482 

F.3d at 311, in which the parties agreed to a mix of factors. The district court 

applied O’Brien, concluding the differences between the tests did not affect the 

outcome. On appeal, plaintiffs accept O’Brien while the State makes no

substantial objection. We therefore apply it too.

 

1 The principal difference is that the hybrid test looks to whether the regulation would 

completely eliminate adult entertainment: “(1) the State regulated pursuant to a legitimate 

governmental power; (2) the regulation does not completely prohibit adult entertainment; (3) 

the regulation is aimed not at the suppression of expression, but rather at combating negative 

secondary effects; and (4) the regulation is designed to serve a substantial governmental 

interest, is narrowly tailored, and reasonable alternative avenues of communication remain 

available, or, alternatively, the regulation furthers an important or substantial governmental 

interest.” Illusions-Dallas, 482 F.3d at 311.

 Case: 17-30292 Document: 00514650492 Page: 9 Date Filed: 09/20/2018
No. 17-30292

10

A. O’Brien factors one and two

The plaintiffs accept that the Act was within the constitutional authority 

of the state government. That concession means the first of the O’Brien factors 

is satisfied, and we therefore need not discuss it. 

As to the governmental interest, the district court held that the Act is 

intended to regulate the secondary effects of erotic dancing, which is a 

substantial governmental interest. Harmful secondary effects can include the

“impacts on public health, safety, and welfare.” Pap’s A.M., 529 U.S. at 291. 

The evidentiary burden to support the governmental interest is light. 

Illusions-Dallas, 482 F.3d at 313. The State has the burden of providing 

evidence that it “reasonably believed to be relevant” to the question of 

secondary effects. Id. (quoting City of Los Angeles v. Alameda Books, Inc., 535 

U.S. 425, 442 (2002) (plurality opinion)). It must show a connection between 

the actions being regulated — erotic dancing by 18, 19, and 20-year-olds and 

alcohol consumption — and the claimed secondary effects.

The principal secondary effects asserted by the State are human 

trafficking and prostitution. Also discussed are substance abuse by, and 

assaults on, the dancers. The State provided a report from a statewide 

investigation conducted by the state Bureau of Alcohol, Tobacco, and Firearms, 

with little isolation of the 18–20-year-old age group in its study. The report 

did describe one individual who went from being a 19-year-old erotic dancer, 

to being a prostitute, to being killed by her pimp. It also provided evidence 

compiled by the City of New Orleans on secondary effects of erotic dancing. 

Though there is significant dispute as to whether the Louisiana 

legislature considered any of this information, we have allowed such 

regulations to be justified by evidence that may not have been presented to the 

enacting officials and was only produced at the time of trial. See J & B Entm’t, 

Inc. v. City of Jackson, 152 F.3d 362, 371–72 (5th Cir. 1998). The plaintiffs

 Case: 17-30292 Document: 00514650492 Page: 10 Date Filed: 09/20/2018
No. 17-30292

11

argue that this misreads J & B, but we stated in that case that “Justice 

Souter’s concurrence in Barnes . . . allows a local government to justify a 

challenged ordinance based on evidence developed either prior to enactment or 

adduced at trial.” Id. at 372 (citing Barnes v. Glen Theatre, Inc., 501 U.S. 560, 

582 (1991) (Souter, J., concurring)).

We agree with the district court that the State upheld its obligation to 

introduce some evidence that it “reasonably believed to be relevant” on the 

question of secondary effects. See Illusions-Dallas, 482 F.3d at 313. The Act 

must also further that governmental interest of reducing human trafficking. 

The State need not demonstrate through empirical data, though, that its 

regulation will reduce such trafficking. “Such a requirement would go too far 

in undermining [the] settled position that municipalities must be given a 

reasonable opportunity to experiment with solutions to address the secondary 

effects of protected speech.” Baby Dolls, 295 F.3d at 481 (quoting Alameda 

Books, Inc., 535 U.S. at 439). The district court relied on the failure of the 

plaintiffs to provide “actual and convincing evidence” that the enactment will 

not have any positive effect on the identified harms. Our precedent, though,

requires a reasonable belief that there is a link between the regulation and the 

curbing of the identified secondary effects. Id. Thus, we proceed beyond the 

absence of evidence from the plaintiffs. We find that the evidence presented 

by the state to demonstrate the existence of secondary effects is also sufficient

to show a reasonable belief that there is a link between the Act and curbing 

the identified secondary effects of human trafficking and prostitution.

B. O’Brien factor three

The third O’Brien factor requires that the regulation be unrelated to the 

suppression of free speech or expression. The district court did not analyze 

that factor separately. Instead it relied on its earlier analysis, which we also 

have discussed, and accepted that intermediate scrutiny applied because the 

 Case: 17-30292 Document: 00514650492 Page: 11 Date Filed: 09/20/2018
No. 17-30292

12

Act was content-neutral. The plaintiffs make a brief argument to the contrary 

on appeal, but we find no error.

C. O’Brien factor four

We now come to the factor that the district court held the Act failed, 

namely, that “the incidental restriction on alleged First Amendment freedoms 

[be] no greater than is essential to the furtherance of that interest.” O’Brien,

391 U.S. at 377. The district court held the Act was “overbroad” because it 

might preclude individuals eighteen to twenty-years-old “from participating in 

theater or similar artistic productions if such participation entails nudity.” It 

stated that “there is little doubt that Act No. 395 sweeps up a fair amount of 

constitutionally protected speech.”

The O’Brien phrase “no greater than necessary” hints of the different and 

difficult standard of “least restrictive means,” but the Supreme Court has made 

clear the two are not equivalent: “Lest any confusion on the point remain, we 

reaffirm today that a regulation of the time, place, or manner of protected 

speech must be narrowly tailored to serve the government’s legitimate,

content-neutral interests but that it need not be the least restrictive or least 

intrusive means of doing so.” Ward v. Rock Against Racism, 491 U.S. 781, 798 

(1989). The Supreme Court went further in describing the needed focus:

Rather, the requirement of narrow tailoring is satisfied “so long as 

the . . . regulation promotes a substantial government interest that 

would be achieved less effectively absent the regulation.” . . . So 

long as the means chosen are not substantially broader than 

necessary to achieve the government’s interest, however, the 

regulation will not be invalid simply because a court concludes that 

the government’s interest could be adequately served by some lessspeech-restrictive alternative. 

Id. at 799–800 (first ellipsis in original) (quoting Albertini, 472 U.S. at 689). 

We apply to O’Brien this guidance about what “no greater than necessary” 

means for time, place, and manner legal standards because, as we stated 

 Case: 17-30292 Document: 00514650492 Page: 12 Date Filed: 09/20/2018
No. 17-30292

13

above, the Court has held that O’Brien is a variant of those standards. See 

Community for Creative Non-Violence, 468 U.S. at 298.2 

At times this court has separately discussed both the O’Brien four-factor 

test and the standard for overbreadth when analyzing a regulation. E.g., Hang 

On, Inc. v. City of Arlington, 65 F.3d 1248, 1254–55 (5th Cir. 1995). We rejected 

the argument that a ban on patrons touching nude dancers (which rarely would 

invoke a patron’s speech rights) was overbroad, in part because the “First 

Amendment ‘does not guarantee the right to [engage in protected expression] 

at all times and places or in any manner that may be desired.’” Id. at 1254 

(inserted phrase in original) (quoting Heffron v. Int’l Soc’y for Krishna 

Consciousness, Inc., 452 U.S. 640, 647 (1981)). “[C]ontent-neutral regulations 

of time, place, or manner are permissible where the regulations satisfy the 

four-part test announced in [O’Brien].” Id. (emphasis omitted). This suggests 

that satisfying O’Brien, when that is the appropriate test, will usually obviate 

the need to analyze the different requirement that the “overbreadth of a 

statute must not only be real, but substantial as well, judged in relation to the 

statute’s plainly legitimate sweep.” See Ferber, 458 U.S. at 770 (quoting 

Broadrick, 413 U.S. at 615).

We apply these principles to our facts. The district court properly 

applied O’Brien’s first three factors to the Act. The court also discussed the 

relevant analysis of whether the government’s interest “would be achieved less 

effectively absent the regulation.” See Albertini, 472 U.S. at 689. The district 

 

2 An insightful summary of the different considerations for the fourth factor 

articulated in Rock Against Racism and in other caselaw is this:

When the government could adopt a narrower regulation that would 

significantly reduce the negative impact on speech without substantially 

interfering with its legislative goals, the government should be forced to adopt 

the narrower regulation.

1 Smolla & Nimmer on Freedom of Speech § 9:17 (2018). 

 Case: 17-30292 Document: 00514650492 Page: 13 Date Filed: 09/20/2018
No. 17-30292

14

court then shifted to a discussion of the substantial-overbreadth issue of 

whether “a substantial number of [a statute’s] applications are 

unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” 

See United States v. Stevens, 559 U.S. 460, 473 (2010) (citation omitted). The 

court continued by discussing Broadrick, Hicks, and other overbreadth cases.

We are engaged in a de novo review, and we see no reason to question

the district court’s conclusions just because some of the caselaw may have been 

from a slightly different doctrine. Substantial overbreadth is certainly a 

related concept to the fourth O’Brien factor. The district court’s primary basis 

for finding the statute applied to far more expression than was essential is that 

it did not exclude what the court called “mainstream” expressions of nudity. 

These were performances at theaters, ballets, or other art venues not usually

associated with eroticism. That mainstream speech is what the district court 

determined was improperly swept up within the reach of this Act.

Limiting constructions may be considered if the regulation “is ‘readily 

susceptible’ to such a construction.” Stevens, 559 U.S. at 481 (quoting Reno v. 

American Civil Liberties Union, 521 U.S. 844, 884 (1997)). The State presented 

to the district court an affidavit from Commissioner Marine-Lombard who 

stated that the Act “does not apply to venues such as theatres, ballets, or other 

mainstream performance arts venues.” The court refused to consider this 

narrowing construction because Commissioner Marine-Lombard “will not 

always be the ATC commissioner and . . . it is not the Court’s role to rely on 

the interpretation of an enforcement agency when determining whether a 

statute is constitutional.”

We disagree with the district court’s assessment that the State’s 

narrowing construction should be rejected. “Administrative interpretation and 

implementation of a regulation are . . . highly relevant to our analysis, for ‘[i]n 

evaluating a facial challenge to a state law, a federal court must . . . consider 

 Case: 17-30292 Document: 00514650492 Page: 14 Date Filed: 09/20/2018
No. 17-30292

15

any limiting construction that a state court or enforcement agency has 

proffered.’” Rock Against Racism, 491 U.S. at 795–96 (second alteration in 

original) (quoting Village of Hoffman Estates v. The Flipside, Hoffman Estates, 

Inc., 455 U.S. 489, 494 n.5 (1982)). When the state official charged with 

implementing a statute has provided an interpretation of how to enforce it, we 

will defer unless that explanation is inconsistent with the statutory language. 

Voting for Am., Inc. v. Steen, 732 F.3d 382, 387 (5th Cir. 2013). Such officials 

often, perhaps always, have temporary tenure in office, but that has not been 

a reason courts have employed to ignore interpretive limits they state.

In addition, there is no suggestion in this record that the legislature was 

seeking to affect dancers other than those at establishments in which erotic 

dancing was the norm, or that the legislature specifically intended to cover 

those at traditional theater and ballet. Nor is there evidence that the Act has 

been applied to such performances. We conclude that the limiting construction

is readily applicable to the Act. The remaining reach of the Act does not 

constitute “overbreadth” that is both “real, but substantial as well, judged in 

relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615. 

To conclude, we focus specifically on the fourth O’Brien factor. We 

restate that narrow tailoring exists when the “regulation promotes a 

substantial government interest that would be achieved less effectively absent 

the regulation.” Albertini, 472 U.S. at 689. The government must show “the 

remedy it has adopted does not ‘burden substantially more speech than is 

necessary to further the government’s legitimate interests.’” Turner Broad. 

Sys., Inc. v. FCC, 512 U.S. 622, 665 (1994) (quoting Rock Against Racism, 491 

U.S. at 799). This burden has been carried, both by the State showing how the 

Act applies to the kinds of performances at issue and by providing the limiting 

construction that excludes performances that would be beyond its legitimate 

regulatory interests.

 Case: 17-30292 Document: 00514650492 Page: 15 Date Filed: 09/20/2018
No. 17-30292

16

Consequently, we conclude the district court erred in holding that the 

Act was overbroad, either for the lack of narrow tailoring necessary under 

O’Brien or for “substantial overbreadth” under such cases as Broadrick.3

III. Vagueness 

A. Plaintiffs’ standing

Before proceeding to consider the merits of the vagueness claim, we 

address questions related to standing. Jane Does II and III claim that the Act 

is facially vague because they cannot discern from the Act how little they can

wear in order to be “shot girls.” In addressing that claim, the district court 

noted that the Act did not govern the clothing requirements for shot girls —

Subsection B of Sections 26:90 and 26:286 did. On that basis, the court held 

that Jane Does II and III lack standing to challenge the Act in some of its 

applications. We discuss later some ambiguity in this section of the district 

court’s decision.

The other plaintiff, Jane Doe I, has remained employed as an erotic 

dancer. She believed she would no longer be able to continue with such 

employment, though, when the ATC began enforcing the Act in New Orleans. 

She, in conjunction with the other plaintiffs, claims that the Act is

“unconstitutionally vague because it fails to precisely define the phrase 

‘breasts or buttocks are exposed.’” By failing to clarify what degree of exposure

of the breasts or buttocks is impermissible, they argue the Act provides “no 

clear guidance to [them], other similarly-situated adults, adult entertainment 

 

3 Among the other points the State makes is that “[a]n overbreadth challenge is not 

appropriate if the First Amendment rights asserted by a party attacking a statute are 

essentially coterminous with the expressive rights of third parties.” Hicks, 980 F.2d at 969. 

The State also argues the Act has no “real” overbreadth and the plaintiffs have failed to 

identify any impermissible applications of the Act. It is unnecessary to discuss these 

arguments in light of the manner in which we have resolved the somewhat overlapping 

questions of overbreadth and narrow tailoring.

 Case: 17-30292 Document: 00514650492 Page: 16 Date Filed: 09/20/2018
No. 17-30292

17

industry club owners, law enforcement, or [the State] as to how it should be 

interpreted and applied in this regard.” The district court addressed that claim

by, as the State acknowledges, by adopting the Plaintiffs’ position.

The question of standing posed here is whether any plaintiff can raise 

the remaining facial vagueness claim. The State contends that no plaintiff has 

such standing. Its argument is two-fold. The State first construes the court’s 

order as holding both that Jane Doe I had standing to challenge the Act 

because she was governed by it and that Jane Does II and III did not have 

standing because they were shot girls. The State argues that the court should 

not have considered Jane Doe I’s facial vagueness claim because she also does 

not have standing to raise it, as her conduct is “clearly covered” by the Act.

The plaintiffs, on the other hand, contend that they each have standing 

to challenge the Act for facial vagueness. They do not explicitly make a 

separate issue of the dismissal of the facial vagueness claim raised by Jane 

Does II and III. They did not need to do so, as a trial court’s decision “must be 

affirmed if the result is correct ‘although the lower court relied upon a wrong 

ground or gave a wrong reason.’” NLRB v. Kentucky River Cmty. Care, Inc., 

532 U.S. 706, 722 n.3 (2001) (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 

(1943)).4 The plaintiffs instead argue that they each have standing to 

challenge the Act because they “seek to engage in the constitutionallyprotected expression of erotic dance” and are “entitled to fair warning as to 

what conduct the [Act] seeks to” prohibit. Cf. Fernandes v. Limmer, 663 F.2d 

619, 625 (5th Cir. Unit A 1981). Therefore, it is proper for us to consider the 

standing of each of the three plaintiffs.

 

4 A cross-appeal “is generally not proper to challenge a subsidiary finding or 

conclusion when the ultimate judgment is favorable to the party cross-appealing.” Cooper 

Indus., Ltd. v. National Union Fire Ins. Co. of Pittsburgh, 876 F.3d 119, 126 (5th Cir. 2018) 

(quoting National Union Fire Ins. Co. of Pittsburgh v. W. Lake Acad., 548 F.3d 8, 23 (1st Cir. 

2008)).

 Case: 17-30292 Document: 00514650492 Page: 17 Date Filed: 09/20/2018
No. 17-30292

18

As to the standing of Jane Doe I, the complaint states she was 20 years 

old. That should mean her 20th birthday was no later than the day the 

complaint was filed, which was September 22, 2016. She would have become

21 years old well before now. It follows that Jane Doe I is no longer affected 

by the Act’s age requirement and the uncertainties of how little can be worn 

by younger dancers. This court is without constitutional jurisdiction to resolve 

moot claims. See National Rifle Ass’n of Am., Inc. v. McCraw, 719 F.3d 338, 

344 (5th Cir. 2013). We thus consider whether the other plaintiffs have 

standing to raise the remaining facial vagueness claim.

We are guided by a few established principles. Though this suit has been 

labelled a facial challenge for vagueness, in which a party to whom the law can 

constitutionally be applied may bring claims for others to whom it allegedly 

cannot, there is still an Article III and prudential standing minima that must 

be satisfied. These standing requirements are as applicable to this vagueness 

claim as they were to the overbreadth claim we analyzed as follows:

In First Amendment facial challenges, federal courts relax 

the prudential limitations and allow yet-unharmed litigants to 

attack potentially overbroad statutes — “to prevent the statute 

from chilling the First Amendment rights of other parties not 

before the court.” At the same time, Article III standing retains 

rigor even in an overbreadth claim.

Fairchild v. Liberty Indep. Sch. Dist., 597 F.3d 747, 755 (5th Cir. 2010) 

(citations omitted) (quoting Secretary of Md. v. Joseph H. Munson Co., 467 U.S. 

947, 956–58 (1984)). We have held that the Article III “rigor” requiring “a 

constitutional harm adequate to satisfy the injury-in-fact requirement” can be 

found in “[c]hilling a plaintiff’s speech.” Id. at 754–55 (quoting Houston 

Chronicle Publ. Co. v. City of League City, 488 F.3d 613, 618 (5th Cir. 2007)). 

We also have stated that a plaintiff alleging “a chilling of speech because of the 

mere existence of an allegedly vague or overbroad statute can be sufficient 

injury to support standing.” Center for Individual Freedom v. Carmouche, 449 

 Case: 17-30292 Document: 00514650492 Page: 18 Date Filed: 09/20/2018
No. 17-30292

19

F.3d 655, 660 (5th Cir. 2006). That analysis might fit Jane Does II and III, 

who became shot girls because their desire to dance had been chilled by the 

vagueness of the Act. That concept of injury could not save Jane Doe I, though. 

The change wrought by the Act only has application to those who want to 

engage in erotic dance and are not yet 21 years old. In no respect is a 21-yearold chilled in her exercise of free expression by the Act challenged here.

We thus return to the district court’s decision about the standing of Jane 

Does II and III. The court held that a different subsection of the statute 

governed clothing for those serving or selling alcohol, and thus they could not 

challenge the amendment governing erotic dancers. Immediately after that 

holding, the court wrote that “the Plaintiffs also argue that [the Act] fails to 

precisely define the phrase ‘breasts or buttocks are exposed to view,’ and 

therefore leads to confusion about how much of an erotic dancer’s buttocks or

breasts must be ‘in view’ to trigger the Act.” The court then cited a portion of 

the plaintiffs’ motion for a preliminary injunction in support. There, all three

plaintiffs collectively argued that the Act was facially vague because it “fails to 

precisely define the phrase ‘breasts or buttocks are exposed.’” At the conclusion 

of its analysis, the court wrote the “Plaintiffs . . . demonstrated a likelihood of 

success on their vagueness challenge.”

These excerpts could be interpreted to mean the court considered the 

facial vagueness claim pertaining to erotic dancers to have been raised by all 

three plaintiffs. Quite differently, the State reasonably relies on the court’s 

rejection of standing for Jane Does II and III to argue that those plaintiffs do 

not have standing to raise the facial vagueness challenge. Regardless of the 

correct interpretation, the legal issue is subject to our de novo review.

As shot girls whose clothing requirements are set forth in a separate 

statutory subsection, Jane Does II and III would lack standing to raise a 

vagueness claim as to the erotic dancing limitations if their only contention 

 Case: 17-30292 Document: 00514650492 Page: 19 Date Filed: 09/20/2018
No. 17-30292

20

was that the Act left them uncertain as to the necessary attire for shot girls. 

They alleged more, though. They assert they want to “engage in the 

constitutionally-protected expression of erotic dance” but are deterred from 

doing so because of the Act’s vagueness. The complaint indicates that Jane 

Does II and III were dancers but became shot girls because of the uncertainties 

of how little clothing they could wear as dancers. They both complain of lesser 

income as shot girls and describe the economic difficulties they are facing. 

Jane Doe III specifically claims that should the Act be invalidated, she “would 

immediately return to erotic dancing as her preferred vocation.”

With those as the relevant allegations, we must decide if each plaintiff

has claimed she is “‘seriously interested in’ engaging ‘in a course of conduct 

arguably affected with a constitutional interest, but proscribed by statute.’”

Fairchild, 597 F.3d at 755 (quoting Int’l Soc. for Krishna Consciousness v. 

Eaves, 601 F.2d 809, 818 (5th Cir. 1979) and Mississippi State Democratic 

Party v. Barbour, 529 F.3d 538, 545 (5th Cir. 2008)). In one applicable 

precedent, the plaintiffs facially challenged a state’s disclosure requirements 

for political committees and certain qualifying individuals. Justice v. 

Hosemann, 771 F.3d 285, 288–90 (5th Cir. 2014). The plaintiffs had engaged 

in political advocacy in the past. Id. at 290. They did not pursue any kind of 

political activity in the campaign for a 2011 ballot initiative, though, “because 

of what they view[ed] as Mississippi’s onerous and complicated disclosure 

requirements.” Id. The Justice plaintiffs argued that the disclosure laws were 

facially vague because they “relegated them to the sidelines [in 2011] by 

‘creat[ing] a significant chilling effect that ha[d] prevented — and continue[d] 

to prevent — [them] and other similarly situated groups from exercising their 

constitutional rights of free speech and association.’” Id. We held that the 

plaintiffs had standing to challenge the laws based on their “legitimate fear of 

criminal penalties for failure to comply with” the disclosure requirements. Id.

 Case: 17-30292 Document: 00514650492 Page: 20 Date Filed: 09/20/2018
No. 17-30292

21

at 291. We reasoned that “[t]heir past enthusiastic participation in the 

political process” and their membership in political organizations showed that, 

if not for Mississippi’s disclosure laws, they would again engage in political 

activism that implicated the disclosure laws. Id.

We conclude that Jane Does II and III have sufficiently expressed a 

“serious interest” in returning to erotic dancing, which is the conduct that is 

undoubtedly affected by the Act. Their allegations show they had been 

dancers, remain employed at sexually-oriented businesses, and have expressed 

a desire to return to their former vocation for both monetary and expressive 

reasons. The State does not contest the plausibility of their allegations. They 

have standing to raise a facial challenge to the statute.

B. Merits of vagueness claim

A law can be unconstitutionally vague if it “fails to provide those targeted 

by the statute a reasonable opportunity to know what conduct is prohibited.” 

Kucinich v. Texas Democratic Party, 563 F.3d 161, 166 n.4 (5th Cir. 2009). 

“When speech is involved, rigorous adherence to th[at] requirement[] is 

necessary to ensure that ambiguity does not chill protected speech.” FCC v. 

Fox Television Stations, Inc., 567 U.S. 239, 253–54 (2012). Flexibility is 

permitted but not at the expense of a statute’s failure to provide “fair notice” 

to people who wish to avoid its prohibitions. Service Emps. Int’l Union, Local 5 

v. City of Houston, 595 F.3d 588, 596–97 (5th Cir. 2010).

The plaintiffs maintain that the Act’s plain language and the State’s 

interpretation of the text amounts to a “total ban” on erotic dancing for 

individuals who are 18 to 20 years old. The Act, though, only applies to 

entertainers at alcohol-licensed establishments. See LA. REV. STAT. §§ 26:90, 

26:286. On its face, the Act does not appear to apply to sexually-oriented 

businesses that are not licensed to serve alcohol. The parties have not cited 

any regulation of non-alcohol-licensed sexually-oriented businesses. We 

 Case: 17-30292 Document: 00514650492 Page: 21 Date Filed: 09/20/2018
No. 17-30292

22

cannot conclude on the record before us that the Act operates as a complete 

ban on the plaintiffs’ ability to engage in erotic dancing. 

The State contends that the Act is not vague because “wearing bikinis 

covering their breasts and buttocks” is the “obvious answer” for individuals 

between the ages of 18 and 20 to conform their conduct to the statute. 

Plaintiffs, though, desire to express themselves through dance while wearing 

as little as possible. Knowing a level of clothing that may be safely in excess 

of the minimum does not inform these plaintiffs of what they seek to know. A 

premise for the State’s argument is that vagueness claims can be defeated by 

identifying conduct that clearly would avoid violating the enactment. A

premise for plaintiffs is there is a right to know with better precision the 

boundary between proper and improper expression. 

We see the question, then, as whether there a right recognizable in a 

vagueness challenge to know the minimum conduct that is sufficient to comply 

with a statute? We have already mentioned that regulatory ambiguity should 

not “chill protected speech.” Fox Television Stations, 567 U.S. at 254. 

The State answers our question by using caselaw they say stands for the 

proposition that “[p]erfect clarity and precise guidance are not required.” That

quoted phrase came from a case dealing with regulation of noise from events 

at New York City’s Central Park. See Rock Against Racism, 491 U.S. at 794. 

The city’s noise standard stated “’its goals [were] to provide the best sound for 

all events’ and to ‘insure appropriate sound quality balanced with respect for 

nearby residential neighbors and the mayorally decreed quiet zone of [the] 

Sheep Meadow.’” Id. (alteration in original). The Court relied on official 

interpretations and the historical application of the noise standards, as those 

were “highly relevant” to its analysis in the sense that they become limiting 

constructions. See id. at 795–96. Acknowledging the discretion placed in the 

hands of city officials, the Court held the guidelines still withstood a facial 

 Case: 17-30292 Document: 00514650492 Page: 22 Date Filed: 09/20/2018
No. 17-30292

23

challenge. See id. One of the plaintiffs’ objections to the bikini argument here 

is that the construction has come up in litigation, not in the form of 

administrative guidance to the affected businesses and dancers.

The State also cites a case discussing Detroit’s zoning for theaters 

projecting sexually explicit movies. See Young v. American Mini Theatres, Inc., 

427 U.S. 50 (1976). There, despite some ambiguity in how much sexual content 

the movies needed to have to fall afoul of the ordinance, the plaintiffs conceded

that because of the movies they wanted to exhibit, “there [was] no uncertainty 

about the impact of the ordinances on their own rights.” Id. at 59. “The 

application of the ordinances to respondents [wa]s plain,” causing the Court to 

reject a facial vagueness challenge in which the plaintiffs sought to rely on 

uncertainty about other situations. Id. at 61. To correlate that rule to these 

plaintiffs, they would need to know that what they want to do clearly violates 

the Act. What they want to do is wear as little as legally permitted.

The Jane Does are not in the category of the plaintiffs in these 

precedents. Unlike Rock Against Racism, there are not authoritative limiting 

constructions. Those interpretations come from state courts5 and official 

administrative guidance. See Service Employees, 595 F.3d at 597. The record 

does not contain evidence of a practice consistent with the State’s litigation 

argument that a bikini is sufficient, and the Commissioner’s affidavit does not 

address the point. See City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 

770 n.11 (1988). Unlike American Mini Theatres, the plaintiffs have not 

conceded they expose their breasts or buttocks to view when erotically dancing. 

There is no clarity to them as to what they must wear not to fall within the 

prohibitions of the Act should they again be dancers. Rock Against Racism 

 

5 This court does not have the authority to narrow a vague state regulation without 

an authoritative state interpretation. Service Employees, 595 F.3d at 597. 

 Case: 17-30292 Document: 00514650492 Page: 23 Date Filed: 09/20/2018
No. 17-30292

24

discusses the flexibility that must exist in many regulations, such as for the 

noise level permitted in Central Park. The fact questions created by the Act in 

this case require better guidance than the State has so far seen fit to provide.

We summarize. The Act added the age requirement that “entertainers 

whose breasts or buttocks are exposed to view . . . shall be twenty-one years of 

age or older.” §§ 26:90(E), 26:286(E). The State acknowledges that the Act 

does not prohibit individuals between the ages of 18 and 20 from being dancers 

whose breasts and buttocks are not exposed to view. What such exposure

involves is affected by the fact that Subsection E is “[s]ubject to the provisions 

of Subsection D.” §§ 26:90(E), 26:286(E). Subsection D prohibits alcohollicensed establishments from permitting “any person . . . to perform acts of . . . 

[t]he displaying of the pubic hair, anus, vulva, genitals, or nipple of the female 

breast.” §§ 26:90(D)(3), 26:286(D)(3).

Reading the two sections such that neither is superfluous is a 

requirement for interpreting Louisiana statutes “if a construction can be 

legitimately found that will give force to and preserve every word of the 

statute.” Burmaster v. Plaquemines Par. Gov’t, 982 So.2d 795, 804 (La. 2008)

(citation omitted). Thus, performers over 21 years old who are allowed to have 

their breasts or buttocks “exposed to view” by Subsection E must still avoid 

exposing what is prohibited by Subsection D. Performers who are between the 

age of 18 and 20, though, are not informed what beyond the list in Subsection 

D must be covered in order not to expose their breasts or buttocks. That 

ambiguity means the Act “does not sufficiently specify what those within its 

reach must do in order to comply.” Hynes v. Mayor & Council of Borough of 

Oradell, 425 U.S. 610, 621 (1976). “Although due process does not require 

‘impossible standards’ of clarity, this is not a case where further precision in 

the statutory language is either impossible or impractical.” Kolender v. 

Lawson, 461 U.S. 352, 361 (1983) (citation omitted). Indeed, Subsection B and 

 Case: 17-30292 Document: 00514650492 Page: 24 Date Filed: 09/20/2018
No. 17-30292

25

Subsection D of Sections 26:90 and 26:286 indicate the State is quite capable 

of particularizing exposure limits.

The penalties for misinterpretation are significant. An alcohol-licensed 

establishment that permits individuals between the ages of 18 and 20 to be 

entertainers whose breasts or buttocks are exposed to view can be fined and 

have its alcohol license revoked or suspended. §§ 26:90(I), 26:286(I). Someone 

under the age of 21 who performs as an entertainer whose breasts or buttocks 

are exposed to view can be fined and incarcerated. § 26:171.

The difficulties we have pointed out about the Act do not remove the 

State’s “undeniably important” interest in combating the harmful secondary 

effects associated with nude dancing. Pap’s A.M., 529 U.S. at 296. Combining 

alcohol and erotic dancing has been found to be a combustible mix. Illusions–

Dallas, 482 F.3d at 313. “As weighty as this concern is, however, it cannot 

justify legislation that would otherwise fail to meet constitutional standards 

for definiteness and clarity.” See Kolender, 461 U.S. at 361. Among the means 

of ameliorating such ambiguities, none of which have been employed here, are 

a statutory reasonable-person standard, a scienter requirement, or a required 

predicate warning. See Munn v. City of Ocean Springs, 763 F.3d 437, 440 (5th 

Cir. 2014); Hill, 530 U.S. at 732; Fairchild, 597 F.3d at 762.

We hold there is a substantial likelihood that the plaintiffs will prevail 

on the merits of their vagueness claim. They have shown that the Act has “the 

capacity ‘to chill constitutionally protected conduct, especially conduct 

protected by the First Amendment.’” Roark & Hardee LP v. City of Austin, 522 

F.3d 533, 546 (5th Cir. 2008) (quoting United States v. Gaudreau, 860 F.2d 357, 

360 (10th Cir. 1988)). Specifically, they have shown that the Act has the 

capacity to deter the constitutionally-protected conduct of erotic dancing by 

failing to provide entertainers between the ages of 18 and 20 with “fair notice” 

 Case: 17-30292 Document: 00514650492 Page: 25 Date Filed: 09/20/2018
No. 17-30292

26

as to what they must do to avoid being subjected to a penalty if their breasts 

or buttocks are “exposed to view.” See Service Employees, 595 F.3d at 597–98.

The Act’s vagueness and its resultant capacity to chill protected conduct 

support finding that the remaining injunctive relief requirements are satisfied. 

The “loss of First Amendment freedoms for even minimal periods of time 

constitutes irreparable injury justifying the grant of a preliminary injunction.” 

Texans for Free Enter. v. Texas Ethics Comm’n, 732 F.3d 535, 539 (5th Cir. 

2013) (quoting Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 

502, 506 (5th Cir. 2009)). The plaintiffs’ injuries outweigh any harm to the 

State because the State “can never have a legitimate interest in administering 

[a regulation] in a manner that violates federal law.” Planned Parenthood of 

Gulf Coast, Inc. v. Gee, 862 F.3d 445, 471 (5th Cir. 2017). Finally, “injunctions 

protecting First Amendment freedoms are always in the public interest.” 

Texans for Free Enter., 732 F.3d at 539 (quoting Christian Legal Soc’y v. 

Walker, 453 F.3d 853, 859 (7th Cir. 2006)).

We have disagreed with the district court’s determination that the 

statute fails to comply with time, place, and manner standards on expressive 

conduct under O’Brien and that the statute is overbroad. Nonetheless, our 

agreement that the statute is unconstitutionally vague, and our analysis that 

the standards for an injunction have been met, lead us to AFFIRM.

 Case: 17-30292 Document: 00514650492 Page: 26 Date Filed: 09/20/2018