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SJC-11770

SHOWTIME ENTERTAINMENT, LLC vs. TOWN OF MENDON & others.1

Suffolk. March 5, 2015. - July 8, 2015.

Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & 

Hines, JJ.

Alcoholic Liquors, Entertainment. Constitutional Law, Alcoholic 

beverages, Public entertainment, Freedom of speech and 

press. Municipal Corporations, By-laws and ordinances.

Zoning, Validity of by-law or ordinance.

Certification of questions of law to the Supreme Judicial 

Court by the United States Court of Appeals for the First

Circuit.

Thomas Lesser (Michael Aleo with him) for the plaintiff.

Robert S. Mangiaratti (Brandon H. Moss with him) for the 

defendants.

SPINA, J. We consider in the present case a challenge 

brought against a bylaw adopted by the town of Mendon (town) 

prohibiting the sale or presence of alcohol at adult

entertainment establishments. Showtime Entertainment, LLC 

 

1 Mike Ammendolia and Lawney Tinio.
2

(Showtime), seeks to operate such an establishment within the 

town and to serve alcohol on the premises. It brought suit in 

Federal court seeking to invalidate the bylaw. The United 

States Court of Appeals for the First Circuit has certified the 

following questions to this court, pursuant to S.J.C. Rule 1:03, 

as appearing in 382 Mass. 700 (1981)2:

"1. Do the pre-enactment studies and other evidence 

considered by [the town] demonstrate a 'countervailing 

State interest,' Cabaret Enters., Inc. v. Alcoholic 

Beverages Control Comm'n, 393 Mass. 13, 17 . . . (1984) 

sufficient to justify [the town's] ban on alcohol service 

at adult-entertainment businesses?

"2. If the ban is so justified, is it adequately 

tailored?"

See Showtime Entertainment, LLC v. Mendon, 769 F.3d 61, 82-83 

(2014) (Showtime).

The certified questions presented to us by the Court of 

Appeals focus on two parts of the test employed to determine the 

constitutionality of "content-neutral" restrictions on 

expressive behavior as first outlined in United States v. 

O'Brien, 391 U.S. 367, 377 (1968). See Commonwealth v. Ora, 451 

Mass. 125, 129 (2008). The four factors of the test are: (1) 

 

2 Supreme Judicial Court Rule 1:03, as appearing in 382 

Mass. 700 (1981), provides: "This court may answer questions of 

law certified to it by . . . a Court of Appeals of the United 

States . . . when requested by the certifying court if there are 

involved in any proceeding before it questions of law of this 

State which may be determinative of the cause then pending in 

the certifying court and as to which it appears to the 

certifying court there is no controlling precedent in the 

decisions of this court."
3

the regulation must be within the power of the government to 

enact; (2) the regulation must further an important or 

substantial governmental interest; (3) the government interest 

must be unrelated to the suppression of free expression; and (4) 

the restriction must be no greater than is essential to the 

furtherance of the government interest. O'Brien, supra. We 

answer the first question in the affirmative. We answer the 

second question in the negative.

1. Background and procedure. We summarize certain 

undisputed facts set forth by the First Circuit, see Showtime, 

769 F.3d at 66-69, and in the record before us. In May, 2008,

at its annual town meeting, the town created an adult 

entertainment overlay district pursuant to G. L. c. 40A, § 9, 

within which an adult entertainment business is allowed to 

operate. After the creation of this district on June 10, 2005, 

Showtime applied for a license to operate an adult entertainment 

business featuring live nude dancing. A hearing on Showtime's 

application was scheduled for September 15, 2008.

In the meantime, a group of residents citing traffic 

concerns petitioned the board of selectmen to enact and amend 

bylaws further regulating adult entertainment businesses in the 

town. These proposed bylaws sought to regulate the physical 

structure of a business, to control the operating hours, to 

forbid the presence or sale of alcohol on the premises of any 
4

adult entertainment business, and to forbid any adult 

entertainment at an establishment currently licensed to serve 

alcohol. The citizen group, Speak Out Mendon, gave a 

presentation to a special town meeting on October 7, 2008,

called to consider the proposed bylaws. In the presentation, 

the group highlighted two studies that concluded that the 

presence of alcohol in physical proximity to sex-oriented 

businesses increase the incidence of crime.3 Showtime's 

application was denied on October 1, 2008.

The town enacted and amended the bylaws as proposed by the 

citizen group. The text of the bylaw restricting the service of 

 

3 The group cited two studies that specifically referenced 

crime and adult entertainment businesses in its presentation. 

The first was a 1991 study that analyzed the effect on adult 

businesses, an undefined term, on crime rates over a period of 

ten years in the city of Garden Grove, California. See McCleary

& Meeker, Final Report to the City of Garden Grove: The 

Relationship Between Crime and Adult Business Operations on 

Garden Grove Boulevard, October 23, 1991. The other study 

analyzed the effects of sexually oriented businesses in Los 

Angeles, California. McCleary, Crime-Related Secondary Effects 

of Sexually Oriented Businesses: Report to the City Attorney, 

May 6, 2007. The presentation also referenced another study 

that included crime as a secondary effect of sexually oriented 

businesses, but the presentation did not cite the study for this 

point. Hecht, Report to the American Center for Law and Justice 

on the Secondary Impacts of Sex Oriented Businesses, 

ERG/Environmental Research Group, March 31, 1996. Only the 1991 

Garden Grove report explicitly concluded that the presence of 

alcohol in physical proximity to adult businesses heightened 

crime rates.
5

alcohol is set forth in the margin.4 The Attorney General issued 

an opinion approving the new bylaws but noted their 

 

4 "CHAPTER XXV[:] ADULT ENTERTAINMENT ESTABLISHMENTS AND 

LIQUOR LICENSES

"The following provisions apply to all Adult 

Entertainment or Use establishments consisting of an 'adult 

bookstore', 'adult motion picture theater', 'adult 

paraphernalia store', 'adult video store', and an 

'establishment which displays live nudity for its patrons'

as defined by [G. L. c. 40A, § 9A,] located within the 

layout lines of the Adult Entertainment Overlay District 

created by the voters of the Town of Mendon on May 2nd, 

2008 as set forth in the Mendon Zoning Bylaws:

"1. The Town of Mendon shall not grant any license 

for the sale of alcohol for consumption in accordance with 

the provisions of [G. L. c. 138, § 12,] to any Adult 

Entertainment or Use establishment, as defined by [G. L. 

c. 40A, § 9A,] as the presence of alcohol is documented to 

exacerbate negative secondary crime effects at sexuallyoriented businesses.

"2. The Town of Mendon shall not grant any special 

licenses for the sale of alcohol for consumption in 

accordance with [G. L. c. 138, § 14,] to any establishment 

as defined as an Adult Entertainment or Use per [G. L. 

c. 40A, § 9A,] as the presence of alcohol is documented to 

exacerbate negative secondary crime effects at sexuallyoriented businesses.

"3. The Town of Mendon shall not allow patrons of 

Adult Entertainment or Use establishments to consume 

alcoholic beverages within any Adult Entertainment or Use 

establishment, even if such beverages are brought to the 

premises by the patrons as a presence of alcohol is 

documented to exacerbate negative secondary crime effects 

at sexually-oriented businesses.

"4. In the event that an establishment already in 

possession of a license in accordance with [G. L. c. 138, 

§ 12 or 14,] applies for a license to operate an Adult 

Entertainment or Use, such establishment shall only be 

granted a license to coincide with the expiration of its 
6

susceptibility to a constitutional challenge. Showtime 

submitted a new application to operate an adult entertainment 

business that addressed the new bylaws.

The town approved the application on May 3, 2010. Showtime 

then filed suit in Federal District Court seeking a declaratory 

judgment that the restrictions placed on the license are

unconstitutional limitations on expressive activity that is 

constitutionally protected. On cross motions for summary 

judgment, the Federal District Court judge found in favor of the 

town. Showtime appealed to the United States Court of Appeals 

for the First Circuit. The Court of Appeals determined that the 

limitations on the physical plant and operating hours were 

unconstitutional but that the outcome of the challenge to the 

bylaw regulating the sale of alcohol centered on unresolved 

questions of Massachusetts constitutional law better suited for 

determination by this court. See Showtime, 769 F.3d. at 74-75, 

78-83. We now consider the questions presented.

2. Level of scrutiny. We need not engage in an extended 

discussion of the parties' first point of disagreement regarding 

the appropriate level of scrutiny. We accept the approach taken 

by the Court of Appeals. In answering the questions presented 

we analyze the restrictions using intermediate scrutiny as if 

 

[G. L. c. 138, § 12 or 14,] license(s) and this license 

will not be renewed."
7

the bylaws are content neutral. See Showtime, 769 F.3d at 71. 

As we will explain, we conclude that the bylaws do not survive 

intermediate scrutiny.

3. Countervailing State interest. In California v. LaRue, 

409 U.S. 109, 118-119 (1972), the United States Supreme Court 

held that the right to freedom of expression at the heart of the 

First Amendment to the United States Constitution did not extend 

to protect the existence of nude dancing in an establishment 

licensed by the State to serve alcohol. At issue were

regulations prohibiting the service of liquor in an 

establishment that featured nude dancing. Id. at 111-112. In 

considering the question of the State's power to revoke the 

license, the Court started from the premise that the First 

Amendment protected expression and that nude dancing may be 

considered a form of expression. Id. at 116-117. The Court's 

analysis then considered the effect of the Twenty-first 

Amendment to the United States Constitution on the right to 

freedom of expression. Id. at 118-119. The Twenty-first 

Amendment returned to the States the ability to regulate

alcohol. Id. at 114. This absolute grant of power meant that 

at times the First Amendment right to freedom of expression in 

the form of conduct could come into conflict with the State's 

power to regulate alcohol. Id. at 118. The Court reasoned that 

as this conduct moved toward the "commission of public acts that 
8

may themselves violate valid penal statutes, the scope of 

permissible [S]tate regulations significantly increases." Id. 

at 117. As the State was not restricting the conduct across the 

board but rather only in locations licensed to serve alcohol by 

the glass and the Twenty-first Amendment expressly gave the 

States the power to regulate the supply of alcohol, the State 

could ban nude dancing in a licensed establishment because the 

Amendment gave an added presumption in favor of the validity of 

State regulation in this area. Id. at 118-119.

The Supreme Court would later disavow the reasoning in 

LaRue. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 

515-516 (1996), the Court reconsidered the interplay of the 

First and Twenty-first Amendments. It concluded that the State 

clearly had the inherent police power to control "bacchanalian 

revelries" and it was thus unnecessary to seek the source of 

this power in the existence of the Twenty-first Amendment. Id.

Our jurisprudence regarding nude dancing and licensed 

establishments developed in the interval between LaRue and 44 

Liquormart, Inc. In Commonwealth v. Sees, 374 Mass. 532, 537 

(1978), we acknowledged that a city ordinance prohibiting nude 

dancing in an establishment licensed to sell alcoholic beverages 

would not run afoul of the First Amendment following LaRue. Yet 

we did not reach the same conclusion when asked if the free 

speech provision of art. 16 of the Massachusetts Declaration of 
9

Rights allowed the same prohibition. Id. Instead, we differed 

from the Supreme Court in LaRue because "no provision of our 

Constitution gives a preferred position to regulation of 

alcoholic beverages." Id. Accordingly, we said that "the 

artistic preferences and prurient interests of the vulgar are 

entitled to no less protection than those of the exquisite and 

sensitive esthete." Id.

Our cases following Sees continued to recognize that "the 

Federal rule does not adequately protect the rights of the 

citizens of Massachusetts under art. 16," Mendoza v. Licensing 

Bd. of Fall River, 444 Mass. 188, 201 (2005), despite the fact 

that "analysis under art. 16 is generally the same as under the 

First Amendment." Id. Our statements were not intended to 

undermine attempts of communities to regulate the "explosive 

combination" of nude dancing and liquor. Blue Canary Corp. v. 

Milwaukee, 251 F.3d 1121, 1124 (7th Cir. 2001). Rather, we 

recognized that the regulation of alcohol at adult entertainment 

establishments was inevitably intertwined with the right to free 

speech. Cabaret Enters., Inc. v. Alcoholic Beverages Control 

Comm'n, 393 Mass. 13, 17-18 (1984). We likened the analysis to 

restrictions on speech regulating "time, place, and manner." 

Mendoza, supra at 197-198. We stated that those communities 

wishing to restrict adult entertainment establishments would be 

required to show some "demonstrated countervailing State 
10

interest" to justify the otherwise impermissible restriction. 

Cabaret Enters., Inc., supra at 17.

The countervailing State interest cannot concern the 

content of the speech at issue, as that would impermissibly 

transform the restriction from content neutral to content based. 

Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47 (1986). 

Instead, the municipality can attempt to address the "secondary 

effects" of adult establishments in crafting regulations. Id. 

at 47-48. The appropriate secondary effects to be considered 

make an exhaustive -- but not surprising -- list. Id. at 48 

(crime prevention, protection of retail trade, maintenance of 

property values, protection and preservation of community life); 

D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50, 57-58 (1st Cir. 

1999) (controlling number of police calls); Mendoza, 444 Mass.

at 198-199 ("curbing crime, including prostitution and rape, 

preserving property values, and minimizing danger to public 

health"); Cabaret Enters., Inc., 393 Mass. at 17 (crime 

prevention); D.H.L. Assocs., Inc. v. Selectmen of Tyngsborough, 

64 Mass. App. Ct. 254, 257 (2005).

The demonstration of this countervailing State interest in 

the form of the mitigation of negative secondary effects need 

only be shown by evidence in the judicial record or legislative 

history sufficient to conclude that the restraint on speech is 
11

required for the protection of the public.5 Cabaret Enters., 

Inc., 393 Mass. at 17. The municipality cannot rationalize the 

restriction post hoc but must show the evidence it actually 

considered in enacting the restriction. T & D Video, Inc. v. 

Revere, 423 Mass. 577, 581 (1996). Neither is it necessary that 

the municipality demonstrate these secondary effects by evidence 

specifically studying its own unique circumstances. Renton, 475 

U.S. at 51-52 (municipality need not "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").

The town argues that it had sufficient evidence to believe 

that the presence of adult entertainment and alcohol at the same 

location would lead to increased crime, a secondary effect that 

the town could have a substantial interest in curtailing. It 

points to studies mentioned or outlined in a presentation by 

Speak Out Mendon to the special town meeting that passed the 

bylaw. We agree with the town that the findings of the studies 

 

5 In determining that the municipality has sufficient 

evidence to demonstrate the countervailing State interest, we

characterize the evidentiary bar a public entity must pass when 

restricting expression. Clearly, the State interest need not be 

perfectly demonstrated, but the evidence before the municipality 

must lead to the reasonable conclusion that a countervailing 

State interest exists in fact. This requirement ensures that 

the identified interest is not a spurious one.
12

offer evidence sufficient to conclude that increased crime is a 

secondary effect when adult entertainment and alcohol service 

are in physical proximity. Showtime attempts to undermine this 

determination by arguing that, although crime prevention is

indeed a significant countervailing State interest, the evidence 

before the town meeting did not support the conclusion that 

alcohol at adult entertainment establishments increases crime or 

that banning alcohol at such establishments would decrease the 

rate of crime.6

Showtime offers no affirmative evidence to counter the 

town's determination that a countervailing State interest 

exists. Its criticisms of the data relied on by Mendon are the 

product of an article that highlights statistical inaccuracies 

in specific studies relied on by other municipalities to 

demonstrate a countervailing State interest. See Bryant Paul, 

Government Regulation of "Adult" Businesses Through Zoning and 

Anti-Nudity Ordinances: Debunking the Legal Myth of Negative 

Secondary Effects, 6 Comm. L. & Pol'y 355, 389 (2001). None of 

 

6 Showtime also attempts to make the distinction between 

service of alcohol "at" an adult entertainment establishment, as

regulated by the alcohol restriction, and the service of alcohol 

in physical proximity to the establishment, as it claims the 

Garden Grove study examined. This argument has no merit. The 

Garden Grove report concluded that the service of alcohol within 

a radius of 1,000 feet of an adult business had a statistically 

significant effect on crime rates. Contrary to Showtime's 

argument, this necessarily includes the center of the circle 

determined by the radius.
13

the studies at issue in that article was utilized by the town in 

the instant case. Therefore, we are satisfied that evidence

exists within the cited studies sufficient to support the 

conclusion that the town has reached in this instance. 

Accordingly, we answer the first certified question in the 

affirmative. The town utilized evidence sufficient to 

demonstrate a countervailing State interest.

4. Narrowly tailored. Having concluded that the town has 

sufficient evidence to believe that alcohol and adult

entertainment businesses lead to an increase in crime and that 

crime prevention is a substantial government interest, we turn 

to the question whether the bylaw is "adequately tailored." 

"The 'essence of narrowly tailoring' is that 'the guideline 

. . . focuses on the source of the evils the [town] seeks to 

eliminate . . . and eliminates them without at the same time 

banning or significantly restricting a substantial quantity of 

speech that does not create the same evils.'" Boston v. Back 

Bay Cultural Ass'n, Inc., 418 Mass. 175, 182 (1994), quoting 

Ward v. Rock Against Racism, 491 U.S. 781, 799 n.7 (1989). "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 less-speech-restrictive alternative." Ward, supra at 800. 
14

Put simply, we first examine if the restriction is overbroad. 

If it is not overbroad, then the restriction is not 

unconstitutional even if a less restrictive alternative remains

available. To determine if the restriction is overbroad, we 

look not to the effect of the restriction on the speech at issue 

but rather to the effect on any other speech encompassed by the 

restriction and ask if the sweep is "substantially broader than 

necessary" to achieve the town's goal of crime prevention. Id.

The town argues that the complete ban of alcohol on the 

premises of establishments identified and defined in G. L. 

c. 40A, § 9A, is not substantially broader than necessary to 

prevent crime because adult entertainment and the service of 

alcohol remain available to the public but simply not in the 

same place. We have previously rejected this rationale in 

Cabaret Enters., Inc., 393 Mass. at 17-18. In that case, we 

declined to view a statute revoking a liquor license at an 

establishment featuring nude dancing as one only regulating 

liquor sales. Id. at 18. Instead we stated that the statute 

prohibited nude dancing at establishments that served alcohol, 

and thus was an impermissible restriction on speech. Id.

The alcohol restriction here acts in the same manner as the 

statute in Cabaret Enters., Inc., and therefore cannot stand 

because it is substantially broader than necessary. The bylaw 

on its face bans the service of alcohol at any establishment 
15

that displays live nudity to its patrons and that is located 

within the adult entertainment overlay district. We consider a 

hypothetical establishment licensed to serve alcohol, such as a 

theater, theoretically located in the adult entertainment 

overlay district, that wishes to show "the rock musical 'Hair,' 

the play 'Equus,' and Richard Strauss's opera 'Salome' and Oscar 

Wilde's play of the same name." Mendoza, 444 Mass. at 200. 

These mainstream performances feature live nudity and thus fall 

under the alcohol restriction. Yet this hypothetical theater 

cannnot be said to be an adult -- or sexually oriented --

business identified as the source of negative secondary effects 

in the studies utilized by the town. Accordingly, the sweep of 

that ban encompasses "work[s] of unquestionable artistic and 

socially redeeming significance" that might be displayed at an 

establishment serving alcohol in the overlay district but have 

not been shown to cause the disorderly conduct the town seeks to 

prevent. Mendoza, supra, quoting Sees, 374 Mass. at 537.

The town protests that the alcohol restriction cannot be 

read in this manner. We are not so confident. The bylaw would 

forbid the issuance of a permit for any of the above 

performances in the spirit of crime prevention. Banning all 

manner of expression at establishments licensed to serve alcohol 

on the basis that the expression features nude dancing is not 

the logical response to the determination that alcohol service 
16

in physical proximity to adult businesses increases the 

incidence of crime. Accordingly, such a ban would clearly 

violate art. 16 no matter the interest in crime prevention. See

Sees, 374 Mass. at 537. The town must seek other, narrower

means to pursue its goal of crime prevention.7 Accordingly, we 

answer the second certified question in the negative.

5. Conclusion. For the reasons stated, we answer the 

first reported question in the affirmative and the second in the 

negative. The Reporter of Decisions is directed to furnish 

attested copies of this opinion to the clerk of this court. The 

clerk in turn will transmit one copy, under the seal of this 

court, to the clerk of the United States Court of Appeals for 

the First Circuit, as the answers to the questions certified, 

and will also transmit a copy to each party.

So ordered.

 

7 Showtime does not contest the town's right to further its 

interest in crime prevention through security and other 

regulations. We particularly note that efforts to completely 

ban the service or provision of alcohol pose a different 

question from attempts to regulate its consumption.