In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 01-4351

BEN’S BAR, INC.,

Plaintiff-Appellant,

v.

VILLAGE OF SOMERSET,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 01 C 821—Barbara B. Crabb, Chief Judge.

____________

ARGUED MAY 30, 2002—DECIDED JANUARY 17, 2003

____________

Before FLAUM, Chief Judge, and HARLINGTON WOOD, JR.

and MANION, Circuit Judges.

MANION, Circuit Judge. Ben’s Bar, Inc. operates a tavern

in the Village of Somerset, Wisconsin, that formerly served

as a venue for nude and semi-nude dancing. After the

Village enacted an ordinance that, in part, prohibited the

sale, use, or consumption of alcohol on the premises of

“Sexually Oriented Businesses,” Ben’s Bar and two of its

dancers filed suit under 42 U.S.C. § 1983, seeking declaratory and injunctive relief against the enforcement of the

ordinance. The plaintiffs’ complaint alleged, among other

things, that the ordinance’s alcohol prohibition violated
2 No. 01-4351

their right to freedom of expression under the First and

Fourteenth Amendments to the United States Constitution. Shortly thereafter, plaintiffs filed a motion for a preliminary injunction, which the district court denied. The

Village then filed a motion for summary judgment, which

the district court granted. Ben’s Bar appeals this decision.

Because we conclude that the record sufficiently supports

the Village’s claim that the liquor prohibition is a reasonable attempt to reduce or eliminate the undesirable “secondary effects” associated with barroom adult entertainment, rather than an attempt to regulate the expressive

content of nude dancing, we affirm the district court’s

judgment.

I.

On October 24, 2000, the Village of Somerset, a municipal

corporation located in St. Croix County, Wisconsin (“Village”), enacted Ordinance A-472, entitled “Sexually Oriented Business Ordinance” (“Ordinance”), for the purpose

of regulating “Sexually Oriented Businesses and related

activities to promote the health, safety, and general welfare

of the citizens of the Village of Somerset, and to establish

reasonable and uniform regulations to prevent the deleterious location and concentration of Sexually Oriented

Businesses within the Village of Somerset.” The Ordinance

regulates hours of operation, location, distance between

patrons and performers, and other aspects concerning the

operations of Sexually Oriented Businesses.

In the legislative findings section of the Ordinance, the

Village noted that:

Based on evidence concerning the adverse secondary

effects of Sexually Oriented Businesses on the community in reports made available to the Village Board,
No. 01-4351 3

and on the holdings and findings in [numerous Supreme Court, federal appellate, and state appellate

judicial decisions], as well as studies and summaries

of studies conducted in other cities . . . and findings

reported in the Regulation of Adult Entertainment

Establishments in St. Croix County, Wisconsin; and

the Report of the Attorney General’s Working Group

of Sexually Oriented Businesses . . . the Village Board

finds that:

(a) Crime statistics show that all types of crimes,

especially sex-related crimes, occur with more

frequency in neighborhoods where sexually

oriented businesses are located.

(b) Studies of the relationship between sexually

oriented businesses and neighborhood property values have found a negative impact on

both residential and commercial property

values.

(c) Sexually oriented businesses may contribute

to an increased public health risk through the

spread of sexually transmitted diseases.

(d) There is an increase in the potential for infiltration by organized crime for the purpose

of unlawful conduct.

(e) The consumption of alcoholic beverages on the

premises of a Sexually Oriented Business exacerbates the deleterious secondary effects of such businesses on the community.

(Emphasis added.)

On February 2, 2001, two months before the Ordinance’s

effective date of April 1, 2001, Ben’s Bar, Inc. (“Ben’s Bar”),
4 No. 01-4351

1 Ben’s Bar holds a liquor license issued by the Village.

2 Article 1, § 3 of the Wisconsin Constitution provides, inter alia,

that “[e]very person may freely speak, write and publish his

sentiments on all subjects, being responsible for the abuse of

that right, and no laws shall be passed to restrain or abridge

the liberty of speech or of the press.” Wis. Const., art. I, § 3.

3 Article 1, § 1 of the Wisconsin Constitution provides that

“[a]ll people are born equally free and independent, and have

certain inherent rights; among these are life, liberty and the

pursuit of happiness; to secure these rights, governments are

instituted, deriving their just powers from the consent of the

governed.” Wis. Const., art. I, § 1.

a tavern in the Village featuring nude and semi-nude

barroom dance,1

 and two of its dancers, Shannen Richards

and Jamie Sleight, filed a four-count complaint against

the Village, pursuant to 42 U.S.C. § 1983 and Wis. Stat.

§ 806.04 (the State’s “Uniform Declaratory Judgments Act”),

in the United States District Court for the Western District

of Wisconsin. The plaintiffs’ complaint alleged that portions of the Ordinance were unconstitutional and preempted by Wisconsin law, sought a declaratory judgment

resolving those issues, and requested permanent injunctive relief. Specifically, the plaintiffs argued that the Ordinance: (1) violated their right of free expression under

the First and Fourteenth Amendments to the United

States Constitution and Article I, § 3 of the Wisconsin

Constitution;2

 (2) violated their right to equal protection

under the Fourteenth Amendment to the United States

Constitution and Article 1, § 1 of the Wisconsin Constitution;3

 (3) was an illegal “policy or custom” of the Village

within the meaning of Monell v. New York City Dep’t of

Social Services, 436 U.S. 658 (1978), and Owen v. City of

Independence, Missouri, 445 U.S. 622 (1980); and (4) was
No. 01-4351 5

4 Wis. Stat. § 66.0107(3) provides that “[t]he board or council of

a city, village or town may not, by ordinance, prohibit conduct which is the same as or similar to conduct prohibited by

§ 944.21 [i.e., the state’s obscenity statute].”

5 Under Section 3(o) of the Ordinance, “Nudity” or “state of

nudity” is defined as “the appearance of the human bare anus,

anal cleft or cleavage, pubic area, male genitals, female genitals, or the nipple or areola of the female breast, with less than

a fully opaque covering; or showing of the covered male genitals in a discernibly turgid state.”

an ultra vires legislative act in violation of Wis. Stat.

§ 66.0107(3).4

On March 19, 2001, the plaintiffs moved for a preliminary

injunction against the enforcement of Sections 5(a) and

(b) of the Ordinance. Section 5(a) provides that “[i]t shall

be a violation of this ordinance for any Person to knowingly and intentionally appear in a state of Nudity in a

Sexually Oriented Business.”5

 Section 5(b) of the Ordinance provides that “[t]he sale, use, or consumption of

alcoholic beverages on the Premises of a Sexually Oriented

Business is prohibited.” Plaintiffs argued that under

§ 66.0107(3) the Village was prohibited from enacting

these regulations of adult entertainment because such

conduct is already covered by the state’s obscenity statute—i.e., Wis. Stat. § 944.21. They also contended that,

notwithstanding § 66.0107, Sections 5(a) and (b) violated

their right to free expression under the First and Fourteenth Amendments.

On April 17, 2001, the district court denied plaintiffs’

motion for preliminary injunctive relief, holding that they

did not have a reasonable chance of succeeding on the

merits of their complaint. The district court, utilizing the

test established by this circuit in Schultz v. City of Cumber-
6 No. 01-4351

6 Plaintiffs Shannen Richards and Jamie Sleight did not appeal

the district court’s judgment.

land, 228 F.3d 831 (7th Cir. 2000), held that Section 5(a)’s

complete prohibition of full nudity in Sexually Oriented

Businesses was constitutional under the First Amendment

because “ ‘limiting erotic dancing to semi-nudity [i.e.,

pasties and G-strings] represents a de minimis restriction

that does not unconstitutionally abridge expression.’ ”

(quoting Schultz, 228 F.3d at 847). The district court also

concluded that Section 5(b) passed constitutional muster

under Schultz because it: (1) was justified without reference to the content of the regulated speech; (2) was narrowly tailored to serve a significant government interest

in curbing adverse secondary effects; and (3) left open

ample alternative channels for communication. Finally,

the district court ruled that the Ordinance was not subject

to preemption under Wis. Stat. § 66.0107(3) because the

plaintiffs had conceded that: (1) the Ordinance only regulates non-obscene conduct; and (2) they were seeking

only to provide non-obscene barroom dancing.

Following unsuccessful attempts at settlement, on August 20, 2001, the Village moved for summary judgment

of plaintiffs’ complaint. On November 23, 2001, the district court granted the Village’s motion, concluding that

the Ordinance was constitutional for the reasons expressed in its April 17, 2001 order. The court also addressed plaintiffs’ equal protection claim, noting that

they had waived the argument by failing to develop it in

their briefs. A judgment in conformity with that order

was entered on November 26, 2001. Ben’s Bar appeals the

district court’s decision granting summary judgment,6

arguing that the court erred in concluding that Section

5(b) does not constitute an unconstitutional restriction
No. 01-4351 7

on nude dancing under the First Amendment. See DiMa

Corp. v. Town of Hallie, 185 F.3d 823, 827 n.2 (7th Cir.

1999) (holding that corporations may assert First Amendment challenges). We review the district court’s grant

of summary judgment de novo, construing all facts in favor

of Ben’s Bar, the non-moving party. Commercial Underwriters Ins. Co. v. Aires Envtl. Services, Ltd., 259 F.3d 792,

795 (7th Cir. 2001).

II.

The First Amendment provides, in part, that “Congress

shall make no law . . . abridging the freedom of speech . . . .”

U.S. Const. amend. I. The First Amendment’s Free Speech

Clause has been held by the Supreme Court to apply to

the states through the Fourteenth Amendment’s due process clause. Gitlow v. New York, 268 U.S. 652, 666 (1925);

DiMa Corp., 185 F.3d at 826 (acknowledging the applicability of the Supreme Court’s “incorporation doctrine” in

the First Amendment context). The Supreme Court has

further held that “nude dancing . . . is expressive conduct

within the outer perimeters of the First Amendment, though

we view it as only marginally so.” Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 566 (1991) (plurality opinion) (emphasis

added). See also Blue Canary Corp. v. City of Milwaukee,

251 F.3d 1121, 1124 (7th Cir. 2001) (noting that “[t]he impairment of First Amendment values is slight to the point

of being risible since the expressive activity involved in

the kind of striptease entertainment provided in a bar has

at best a modest social value . . . .”). Thus, while few

would argue “that erotic dancing . . . represents high artistic expression,” Schultz v. City of Cumberland, 228 F.3d

831, 839 (7th Cir. 2000), the Supreme Court has, nevertheless, afforded such expression a diminished form of protection under the First Amendment. City of Erie v. Pap’s
8 No. 01-4351

7 The Supreme Court has, on two separate occasions, held that

requiring nude dancers to wear pasties and G-strings does not

violate the First Amendment. Pap’s A.M., 529 U.S. at 301 (plurality opinion), id. at 307-10 (Scalia, J., concurring); Barnes, 501

U.S. at 571-72 (plurality opinion), id. at 582 (Souter, J., concurring).

8 Section 3(w) of the Ordinance defines “Sexually Oriented

Business” as “an adult arcade, adult bookstore or adult video

store, adult cabaret, adult motel, adult motion picture theater,

adult theater, escort agency or sexual encounter center.”

9 Section 3(c) of the Ordinance is the definition for “Adult

cabaret,” which “means a nightclub, dance hall, bar, restaurant,

(continued...)

A.M., 529 U.S. 277, 294 (2000) (plurality opinion) (holding

that “ ‘even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest

that society’s interest in protecting this type of expression is

of a wholly different, and lesser, magnitude than the interest

in untrammeled political debate . . . .’ ”) (citation omitted)

(emphasis added).

This case requires us to determine whether a municipality may restrict the sale or consumption of alcohol on

the premises of businesses that serve as venues for adult

entertainment without violating the First Amendment.

On appeal, Ben’s Bar’s primary argument is that Section

5(b) is unconstitutional because the regulation has the

“effect” of requiring its dancers to wear more attire than

simply pasties and G-strings.7

 This argument may be

summed up as follows: (1) Section 5(b) prohibits the

sale, use, or consumption of alcohol on the premises of

Sexually Oriented Businesses;8

 (2) Ben’s Bar is an “Adult

cabaret,” a sub-category of a Sexually Oriented Business

under the Ordinance,9

 if it features nude or semi-nude
No. 01-4351 9

9 (...continued)

or similar commercial establishment that regularly features:

(1) persons who appear in a state of Nudity or Semi-nudity; or

(2) live performances that are characterized by ‘specified sexual activities’; or (3) films, motion pictures, video cassettes,

slides, or other photographic reproductions that are characterized by the depiction or description of ‘specified sexual activities’ or Nudity or ‘specified anatomical areas.’ ” (Emphasis

added.)

10 According to Ben’s Bar, Section 5(b) goes far beyond the

pasties and G-strings regulation upheld by the Supreme Court

in Barnes and Pap’s A.M., prohibiting “any display of the buttocks or of breast below the top of the areola”—i.e., “conservative two piece swimsuits, moderately low-cut blouses, short

shorts, sheer fabrics and many other types of clothing that

are regularly worn in the community and are in mainstream

fashion.”

11 It is not entirely clear whether Ben’s Bar is arguing that Section 5(b) is facially unconstitutional or merely unconstitutional

(continued...)

dancers; (3) Section 3(o) of the Ordinance defines “seminude or semi-nudity” as “the exposure of a bare male or

female buttocks or the female breast below a horizontal

line across the top of the areola at its highest point with

less than a complete and opaque covering”; and (4) Ben’s

Bar’s dancers must wear more attire than that required

by the Ordinance’s definition of “semi-nude or seminudity” in order for the tavern to be able to sell alcohol

during their performances and comply with Section 5(b)—

i.e., more than pasties and G-strings. Ben’s Bar contends

that Section 5(b) significantly impairs the conveyance of

an erotic message by the tavern’s dancers10 and is not

narrowly tailored to meet the Village’s stated goal of

reducing the adverse secondary effects associated with

adult entertainment.11
10 No. 01-4351

11 (...continued)

as applied. To the extent Ben’s Bar seeks to bring a facial challenge, it faces an uphill battle. Ben’s Bar does not argue that

the regulation is vague or overbroad, and therefore may only

prevail if it can demonstrate “that no set of circumstances exists under which the [regulation] would be valid.” United States

v. Salerno, 481 U.S. 739, 745 (1987). See also Horton v. City of

St. Augustine, Florida, 272 F.3d 1318, 1331 (11th Cir. 2001) (noting exception to the Salerno rule; that, in the limited context of

the First Amendment, a plaintiff may also bring a facial challenge for overbreadth and/or vagueness).

The central fallacy in Ben’s Bar’s argument, however, is

that Section 5(b) restricts the sale and consumption of

alcoholic beverages in establishments that serve as venues

for adult entertainment, not the attire of nude dancers.

In the absence of alcohol, Ben’s Bar’s dancers are free to

express themselves all the way down to their pasties and

G-strings. The question then is not whether the Village

can require nude dancers to wear more attire than pasties

and G-strings, but whether it can prohibit Sexually Oriented Businesses like Ben’s Bar from selling alcoholic

beverages in order to prevent the deleterious secondary

effects arising from the explosive combination of nude

dancing and alcohol consumption.

While the question presented is rather straightforward,

the issue is significantly complicated by a long series

of Supreme Court decisions involving the application of

the First Amendment in the adult entertainment context.

Because these decisions establish the analytical framework

under which we must operate, our analysis necessarily

begins with a comprehensive summary of the Supreme

Court’s jurisprudence in this area.
No. 01-4351 11

12 The regulations at issue in LaRue prohibited:

(a) The performance of acts, or simulated acts, of sexual

intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation or any sexual acts which are prohibited

by law;

(b) The actual or simulated touching, caressing or fondling on the breast, buttocks, anus or genitals;

(c) The actual or simulated displaying of the pubic hair,

anus, vulva or genitals;

(d) The permitting by a licensee of any person to remain

in or upon the licensed premises who exposes to public view

any portion of his or her genitals or anus; and, by a companion section;

(e) The displaying of films or pictures depicting acts a live

performance of which was prohibited by the regulations

quoted above.

409 U.S. at 411-12.

A. California v. LaRue

Initially, we note that the Supreme Court addressed the

precise issue before us in California v. LaRue, 409 U.S. 109

(1972), when it considered the constitutionality of regulations promulgated by California’s Department of Alcoholic

Beverages (“Department”) that prohibited bars and nightclubs from featuring varying degrees of adult entertainment.12 The Department enacted the regulations, after

holding public hearings, because it concluded that the consumption of alcohol in adult entertainment establishments

resulted in a number of adverse secondary effects—e.g., acts

of public indecency and sex-related crimes. As in this

case, adult entertainment businesses filed suit alleging

that the regulations violated the First Amendment. Id.

at 110.
12 No. 01-4351

13 The second section of the Twenty-first Amendment provides that “[t]he transportation or importation into any State,

Territory, or possession of the United States for delivery or use

therein of intoxicating liquors, in violation of the laws thereof,

is hereby prohibited.” U.S. Const. amend. XXI, § 2.

The Supreme Court began its analysis in LaRue by stressing that “[t]he state regulations here challenged come to

us, not in the context of a dramatic performance in a theater, but rather in a context of licensing bars and nightclubs

to sell liquor by the drink.” 409 U.S. at 114. For this reason, the vast majority of the Court’s opinion addressed the

States’ power to regulate “intoxicating liquors” under the

Twenty-first Amendment.13 See generally id. at 115-19.

Specifically, the LaRue Court concluded that:

While the States, vested as they are with general police

power, require no specific grant of authority in the

Federal Constitution to legislate with respect to matters traditionally within the scope of the police power,

the broad sweep of the Twenty-first Amendment has

been recognized as conferring something more than

the normal state authority over public health, welfare,

and morals.

409 U.S. at 114.

In doing so, the LaRue Court rejected the plaintiffs’

contention that the state’s regulatory authority over “intoxicating beverages” was limited, as applied to adult entertainment establishments, to “either dealing with the problem it confronted within the limits of our decisions as to

obscenity [i.e., Roth v. United States, 354 U.S. 476 (1957) and

its progeny] or in accordance with the limits prescribed

for dealing with some forms of communicative conduct

in [United States v. O’Brien, 391 U.S. 367 (1968)],” 409 U.S.
No. 01-4351 13

14 See also City of Newport v. Iacobucci, 479 U.S. 92, 95 (1986)

(upholding the constitutionality of a city ordinance prohibiting

nude or nearly nude dancing in local establishments licensed

to sell liquor for consumption on the premises); New York

State Liquor Auth. v. Bellanca, 452 U.S. 714, 717 (1981) (holding

that “[t]he State’s power to ban the sale of alcoholic beverages

(continued...)

at 116, reasoning “ ‘[w]e cannot accept the view that an

apparently limitless variety of conduct can be labeled

‘speech’ whenever the person engaging in the conduct

intends thereby to express an idea.’ ” Id. at 117-18 (citation

omitted). The Court found that “the substance of the regulations struck down prohibits licensed bars or nightclubs from displaying, either in the form of movies or

live entertainment, ‘performances’ that partake more of

gross sexuality than of communication.” Id. at 118. The

Court also concluded that although “at least some of the

performances to which these regulations address themselves are within the limits of the constitutional protection of freedom of expression, the critical fact is that California has not forbidden these performances across the

board . . . [but] has merely proscribed such performances

in establishments that it licenses to sell liquor by the

drink.” Id. The LaRue Court ended its analysis by noting

that “[t]he Department’s conclusion, embodied in these

regulations, that certain sexual performances and the

dispensation of liquor by the drink ought not to occur at

premises that have licenses was not an irrational one,” and

that “[g]iven the added presumption in favor of the validity

of the state regulation in this area that the Twenty-first

Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.” Id.

at 118-19.14
14 No. 01-4351

14 (...continued)

entirely includes the lesser power to ban the sale of liquor

on premises where topless dancing occurs”); Doran v. Salem Inn,

Inc., 422 U.S. 922, 932-33 (1975) (noting that under LaRue

states may ban nude dancing as part of their liquor licensing

programs); City of Kenosha v. Bruno, 412 U.S. 507, 515 (1973)

(noting that “regulations prohibiting the sale of liquor by the

drink on premises where there were nude but not necessarily

obscene performances [are] facially constitutional”).

B. 44 Liquormart, Inc. v. Rhode Island

After the Supreme Court’s decision in 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484 (1996), however, the

precedential value of the reasoning anchoring the Court’s

holding in LaRue was severely diminished. In 44 Liquormart, the Court held that Rhode Island’s statutory prohibition against advertisements providing the public with

accurate information about retail prices of alcoholic beverages was “an abridgement of speech protected by the

First Amendment and that is not shielded from constitutional scrutiny by the Twenty-first Amendment.” Id. at

489. In reaching this conclusion, the Court noted:

Rhode Island argues, and the Court of Appeals agreed,

that in this case the Twenty-first Amendment tilts

the First Amendment analysis in the State’s favor [of

the advertising ban] . . . . [T]he Court of Appeals relied

on our decision in California v. LaRue . . . [where] five

Members of the Court relied on the Twenty-first

Amendment to buttress the conclusion that the First

Amendment did not invalidate California’s prohibition of certain grossly sexual exhibitions in premises

licensed to serve alcoholic beverages. Specifically, the

opinion stated that the Twenty-first Amendment required that the prohibition be given an added pre-
No. 01-4351 15

sumption in favor of its validity. We are now persuaded

that the Court’s analysis in LaRue would have led to precisely the same result if it had placed no reliance on the Twentyfirst Amendment. Entirely apart from the Twenty-first

Amendment, the State has ample power to prohibit the sale

of alcoholic beverages in inappropriate locations. Moreover, in subsequent cases, the Court has recognized that

the States’ inherent police powers provide ample authority

to restrict the kind of “bacchanalian revelries” described

in the LaRue opinion regardless of whether alcoholic beverages are involved. . . . See, e.g., Young v. American Mini

Theatres, Inc., 427 U.S. 50 (1976); Barnes v. Glen Theatre,

Inc., 501 U.S. 560 (1991). As we recently noted: “LaRue

did not involve commercial speech about alcohol, but

instead concerned the regulation of nude dancing

in places where alcohol was served.” Rubin v. Coors

Brewing Co., 514 U.S., at 483, n. 2. Without questioning the holding of LaRue, we now disavow its reasoning insofar as it relied on the Twenty-first Amendment.

Id. at 515-16 (emphasis added).

The foregoing makes clear that LaRue’s holding remains valid after 44 Liquormart, but for a different reason.

The 44 Liquormart Court concluded that “the Court’s

analysis in LaRue would have led to precisely the same

result if it had placed no reliance on the Twenty-first

Amendment,” 517 U.S. at 515, because “[e]ntirely apart

from the Twenty-first Amendment, the State has ample

power to prohibit the sale of alcoholic beverages in inappropriate locations.” Id. In making this assertion, the 44

Liquormart Court relied on the LaRue Court’s conclusion

that: “the States, vested as they are with general police

power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power . . . [i.e.,] the
16 No. 01-4351

normal state authority over public health, welfare, and

morals.” 409 U.S. at 114. But in recent years, the Supreme

Court has held, on a number of occasions, that “nonobscene” adult entertainment is entitled to a minimal

degree of protection under the First Amendment, even

in relation to laws enacted pursuant to a State’s general

police powers. City of Los Angeles v. Alameda Books, Inc., 122

S.Ct. 1728, 1739 (2002) (Kennedy, J., concurring) (noting

that “if a city can decrease the crime and blight associated

with [adult entertainment] speech by the traditional exercise of its zoning power, and at the same time leave the

quantity and accessibility of speech substantially undiminished, there is no First Amendment objection”); Pap’s

A.M., 529 U.S. at 296 (plurality opinion) (holding that

city’s public indecency ordinance, enacted to “protect public health and safety,” must be analyzed as a contentneutral regulation of expressive conduct); id. at 310

(Souter, J., concurring in part and dissenting in part).

Given the foregoing, it is difficult to ascertain exactly what

“analysis” the 44 Liquormart Court was referring to as

having persuaded it that the LaRue Court would have

reached the same result even without the “added presumption” of the Twenty-first Amendment. We find

noteworthy, however, the 44 Liquormart Court’s citation

of the post-LaRue decisions of Young v. American Mini

Theatres, Inc., 427 U.S. 50 (1976), and Barnes v. Glen Theatre,

Inc., 501 U.S. 560, 582 (1991), in support of its assertion

that “the States’ inherent police powers provide ample

authority to restrict the kind of ‘bacchanalian revelries’

described in the LaRue opinion regardless of whether

alcoholic beverages are involved.” 44 Liquormart, 517 U.S. at

515. In American Mini Theatres and Barnes, the Supreme

Court held that the adult entertainment regulations at issue were subject to intermediate scrutiny for purposes of

determining their constitutionality under the First Amend-
No. 01-4351 17

ment. American Mini Theatres, 427 U.S. at 79 (Powell, J.,

concurring) (“it is appropriate to analyze the permissibility of Detroit’s action [zoning ordinance separating adult

theaters from residential neighborhoods and churches]

under the four-part test of United States v. O’Brien . . . .”);

Barnes, 501 U.S. at 582 (Souter, J., concurring) (“I also agree

with the plurality that the appropriate analysis to determine the actual protection required by the First Amendment is the four-part enquiry described in United States

v. O’Brien . . . .”).

Like the Fourth and Eleventh Circuits, we conclude that

after 44 Liquormart state regulations prohibiting the sale

or consumption of alcohol on the premises of adult entertainment establishments must be analyzed in light of American Mini Theatres and Barnes, as modified by their respective progeny. See Giovani Carandola Ltd. v. Bason, 303 F.3d

507, 513 n.2 & 519 (4th Cir. 2002) (noting the 44 Liquormart

Court’s reliance on American Mini Theatres and Barnes and

holding that “the result reached in LaRue remains sound

not because a state enjoys any special authority when it

burdens speech by restricting the sale of alcohol, but

rather because the regulation in LaRue complied with the

First Amendment”); Sammy’s of Mobile, Ltd. v. City of

Mobile, 140 F.3d 993, 996 (11th Cir. 1998) (holding that “the

Supreme Court [in 44 Liquormart] . . . reaffirmed the

precedential value of LaRue and the Barnes-O’Brien test . . . .

[and] reaffirmed that the Barnes-O’Brien intermediate level

of review applies to [adult entertainment liquor regulations]”). But see BZAPS, Inc. v. City of Mankato, 268 F.3d 603,

608 (8th Cir. 2001) (upholding the constitutionality of an

adult entertainment liquor regulation solely on the basis

of LaRue’s holding).

We reach this conclusion notwithstanding the fact that

in LaRue the Supreme Court upheld the constitutionality

of the adult entertainment liquor regulations using the ra-
18 No. 01-4351

tional basis test, see 409 U.S. at 115-16, and explicitly refused

to subject the regulations to O’Brien’s intermediate scrutiny test. Id. at 116 (“We do not believe that the state regulatory authority in this case was limited to . . . dealing

with the problem it confronted . . . in accordance with the

limits prescribed for dealing with some forms of communicative conduct in [O’Brien]”). We do so because the 44

Liquormart Court’s reference to American Mini Theatres

and Barnes makes clear that the Court is of the opinion

that adult entertainment liquor regulations, like the ones

at issue in LaRue, will pass constitutional muster even

under the heightened intermediate scrutiny tests outlined

in those cases.

In making this determination, we are by no means

suggesting that the Supreme Court’s decisions in American

Mini Theatres and Barnes are of greater precedential value

than LaRue. On the contrary, as noted infra, our decision

in this case is largely dictated by LaRue’s holding. At the

time LaRue was decided, however, the Supreme Court

had not yet established a framework for analyzing the

constitutionality of adult entertainment regulations. This

changed with the Court’s subsequent decisions in American Mini Theatres and Barnes, cases that serve as a point

of origin for two distinct, yet overlapping, lines of jurisprudence that address the degree of First Amendment

protection afforded to adult entertainment. Given the significant development of the law in this area since LaRue,

as well as the Court’s refashioning of LaRue’s reasoning

in 44 Liquormart, we conclude that it is necessary to apply

LaRue’s holding in the context of this precedent.

C. The 44 Liquormart “road map”

The 44 Liquormart decision established a road map of

sorts for analyzing the constitutionality of adult entertain-
No. 01-4351 19

15 See J & B Social Club No. 1, Inc. v. City of Mobile, 966 F. Supp.

1131, 1136 (S.D. Ala. 1996) (Hand, J.).

ment liquor regulations, i.e., the Supreme Court’s decisions

in Young v. American Mini Theatres, Inc., 427 U.S. 50 (1976),

and Barnes v. Glen Theatre, Inc., 501 U.S. 560, 582 (1991),

providing two separate but similar routes.15 First, the

American Mini Theatres decision, as modified by the Court’s

subsequent decisions in City of Renton v. Playtime Theatres,

Inc., 475 U.S. 41 (1986), and City of Los Angeles v. Alameda

Books, Inc., 122 S.Ct. 1728 (2002), delineates the standards

for evaluating the constitutionality of adult entertainment

zoning ordinances. Second, the Barnes decision, as modified

by the Court’s recent decision in City of Erie v. Pap’s A.M.,

529 U.S. 277 (2000), provides guidelines for analyzing

the constitutionality of public indecency statutes.

The analytical frameworks utilized in both lines of

jurisprudence can be traced back to the four-part test

enunciated by the Supreme Court in United States v.

O’Brien, 391 U.S. 367 (1968), where the Court held that a

statute prohibiting the destruction or mutilation of draft

cards was a content-neutral regulation of expressive conduct. Id. at 376. See also American Mini Theatres, 427 U.S. at

79 (Powell, J., concurring) (applying O’Brien test); Barnes,

501 U.S. at 582 (Souter, J., concurring) (same). Under the

O’Brien test, a governmental regulation is sufficiently

justified, despite its incidental impact upon expressive

conduct protected by the First Amendment, if: (1) it is

within the constitutional power of the government; (2) it

furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free speech; and (4) the incidental restriction on
20 No. 01-4351

16 In Renton, the Supreme Court created some confusion as to

the appropriate test for analyzing time, place, and manner

regulations by asserting that “time, place, and manner regulations are acceptable so long as they are designed to serve

a substantial governmental interest and do not unreasonably

limit alternative avenues of communication.” 475 U.S. at 47.

However, as we emphasized in City of Watseka v. Illinois Public Action Council, 796 F.2d 1547 (7th Cir. 1986), “[t]he Supreme

Court does not always spell out the ‘narrowly tailored’ step as

part of its standard for evaluating time, place, and manner

restrictions.” Id. at 1553. Moreover, a close examination of

Renton reveals that the Court did consider whether the zoning

ordinance at issue was narrowly tailored. 475 U.S. at 52 (“[t]he

Renton ordinance is ‘narrowly tailored’ to affect only that

category of theaters shown to produce the unwanted secondary

(continued...)

alleged First Amendment freedoms is no greater than is

essential to the furtherance of that interest. Id. at 377.

While the O’Brien test is still utilized by the Supreme

Court in analyzing the constitutionality of public indecency statutes, see Pap’s A.M., 529 U.S. at 289 (plurality

opinion); id. at 310 (Souter, J., concurring in part and

dissenting in part), the Court currently evaluates adult

entertainment zoning ordinances as time, place, and manner regulations. Alameda Books, 122 S.Ct. at 1733 (plurality

opinion); id. at 1741 (Kennedy, J., concurring); Renton, 475

U.S. at 46-47. A time, place, and manner regulation of adult

entertainment will be upheld if it is “designed to serve

a substantial government interest and . . . reasonable alternative avenues of communication remain[ ] available.”

Alameda Books, 122 S.Ct. at 1734. Additionally, a time,

place, and manner regulation must be justified without

reference to the content of the regulated speech and narrowly tailored to serve the government’s interest. Schultz,

228 F.3d at 845.16
No. 01-4351 21

16 (...continued)

effects . . . .”). In any event, both the Supreme Court and this

circuit have continued to apply the “narrowly tailored” step

to time, place, and manner regulations. See Ward v. Rock

Against Racism, 491 U.S. 781, 796 (1989); Frisby v. Schultz, 487 U.S.

474, 481 (1987); Pleasureland Museum, Inc. v. Beutter, 288 F.3d

988, 1000 (7th Cir. 2002).

17 But see Alameda Books, 122 S.Ct at 1745 n.2 (Souter, J., dissenting) (joined by Stevens, J. and Ginsburg, J.) (noting that

“[b]ecause Renton called its secondary-effects ordinance a mere,

(continued...)

In this case, however, we are not dealing with a zoning

ordinance or a public indecency statute. Instead, we are

called upon to evaluate the constitutionality of an adult

entertainment liquor regulation. Therefore, it is not entirely clear whether Section 5(b) should be analyzed as a

time, place, and manner restriction or as a regulation of

expressive conduct under O’Brien’s four-part test; or for

that matter whether the tests are entirely interchangeable.

See LLEH, Inc. v. Wichita County, Texas, 289 F.3d 358, 365

(5th Cir.), cert. denied, 123 S.Ct. 621 (2002) (noting uncertainty as to which test courts should use in analyzing

the constitutionality of adult entertainment regulations:

“the test for time, place, or manner regulations, described

in Renton . . . or the four-part test for incidental limitations on First Amendment freedoms, established in

O’Brien . . . .”). For all practical purposes, however, the

distinction is irrelevant because the Supreme Court has

held that the time, place, and manner test embodies

much of the same standards as those set forth in United

States v. O’Brien. Barnes, 501 U.S. at 566 (plurality opinion) (relying on Clark v. Community for Creative Non-Violence, 468 U.S. 288, 298-99 (1984)); LLEH, 289 F.3d at 365-66

(same).17 Moreover, as explained infra, two of the Su-
22 No. 01-4351

17 (...continued)

time, place, or manner restriction and thereby glossed over the

role of content in secondary-effects zoning . . . I believe the

soft focus of its statement of the middle-tier test should be

rejected in favor of the . . . [O’Brien] formulation . . . a closer

relative of secondary effects zoning than mere time, place,

and manner regulations, as the Court . . . implicitly recognized

[in Pap’s A.M.].”).

18 The Court also concluded that the zoning ordinance did not

violate the Due Process and Equal Protection Clauses of the

Fourteenth Amendment, American Mini Theatres, 427 U.S. at 61,

72-73; see generally id. at 73-84 (Powell, J., concurring), issues

that are not before us on appeal.

preme Court’s post-44 Liquormart decisions—Pap’s A.M.

and Alameda Books—make it abundantly clear that the

analytical frameworks and standards utilized by the Court

in evaluating adult entertainment regulations, be they

zoning ordinances or public indecency statutes, are virtually indistinguishable. We, therefore, conclude that it

is appropriate to analyze the constitutionality of Section

5(b) using the standards articulated by the Supreme Court

in the five decisions comprising the American Mini Theatres and Barnes lines of jurisprudence. Thus, before proceeding to the merits of Ben’s Bar’s argument, we begin

our analysis by summarizing the reasoning and holdings

of these decisions.

(1) Young v. American Mini Theatres, Inc.

In Young v. American Mini Theatres, 427 U.S. 50 (1976), the

Supreme Court addressed, inter alia, whether a zoning

ordinance enacted by the City of Detroit violated the First

Amendment.18 Id. at 58. The “dispersal” ordinance at issue

prohibited the operation of any adult entertainment movie
No. 01-4351 23

19 The American Mini Theatres plurality also noted, in a footnote,

that the city had enacted the zoning ordinance because of its

determination that “a concentration of ‘adult’ movie theaters

causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types

(continued...)

theater within 1,000 feet of any two other “regulated uses”

(e.g., adult bookstores, bars, hotels, pawnshops), or within 500 feet of a residential area. Id. at 52. A majority of

the Court upheld the constitutionality of the ordinance,

but in doing so did not agree on a single rationale for

the decision. Id. at 62-63 (plurality opinion); id. at 84

(Powell, J. concurring). The plurality concluded that “apart

from the fact that the ordinance treats adult theaters differently from other theaters and the fact that the classification is predicated on the content of material shown in

respective theaters, the regulation of the place where such

films may be exhibited does not offend the First Amendment.”

Id. at 63 (emphasis added). In reaching this conclusion, the

plurality emphasized that “even though we recognize

that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society’s interest in protecting this type of expression is of a wholly different, and

lesser, magnitude than the interest in untrammeled political debate.” Id. at 70. The plurality also found that the

city’s zoning ordinance was justified by its interest in “preserving the character of its neighborhoods,” id. at 71, and

therefore “the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious

problems.” Id. The plurality concluded its analysis by noting that “what is ultimately at stake is nothing more than

a limitation on the place where adult films may be exhibited . . . .” Id.

19
24 No. 01-4351

19 (...continued)

of films,” 427 U.S. at 71 n.34 (emphasis added), noting “[i]t is

this secondary effect which these zoning ordinances attempt

to avoid, not the dissemination of ‘offensive’ speech.” Id. (emphasis added).

20 Under Marks v. United States, 430 U.S. 188, 193 (1977), Justice

Powell’s concurrence is the controlling opinion in American

Mini Theatres, as the most narrow opinion joining four other

Justices in the judgment of the Court. Entertainment Concepts,

Inc., III v. Maciejewski, 631 F.2d 497, 504 (7th Cir. 1980).

21 Falling in between American Mini Theatres and Renton is the

Supreme Court’s decision in Schad v. Borough Mount Ephraim,

452 U.S. 61 (1981), where the Court struck down, on First

(continued...)

Justice Powell concurred in the judgment of the Court,

agreeing with the plurality that the zoning ordinance “is

addressed only to the places at which this type of expression may be presented, a restriction that does not interfere with content.” Id. at 78-79. He disagreed, however,

with the plurality’s determination that “nonobscene,

erotic materials may be treated differently under First

Amendment principles from other forms of protected

expression.” Id. at 73 n.1. Instead, Justice Powell concluded

that it was appropriate to analyze and uphold the constitutionality of the zoning ordinance under the four-part

test enunciated in United States v. O’Brien, 391 U.S. 367

(1968). Id. at 79.20

(2) City of Renton v. Playtime Theatres, Inc.

The Supreme Court’s decision in American Mini Theatres

laid the groundwork for the Court’s decision in City

of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).21 In
No. 01-4351 25

21 (...continued)

Amendment grounds, a zoning ordinance that did not—like

the ordinance in American Mini Theatres—require the dispersal

of adult theaters, but instead prohibited them altogether. Id. at

71-72 (plurality opinion); id. at 77 (Blackmun, J., concurring);

id. at 79 (Powell, J., concurring). The only significance of Schad,

for purpose of our analysis, is that the holding of that case

serves as the basis for the first step in the Renton framework—i.e.,

does the ordinance completely prohibit the expressive conduct

at issue? See Alameda Books, 122 S.Ct. at 1733 (noting that the

first step in the Renton framework was the Court’s determination that “the ordinance did not ban adult theaters altogether,

but merely required that they be distanced from certain sensitive locations”); Renton, 475 U.S. at 46.

Renton, the Court considered the validity of an adult entertainment zoning ordinance virtually indistinguishable

from the one at issue in American Mini Theatres. Id. at 46.

Unlike the American Mini Theatres plurality, however, the

Renton Court outlined an analytical framework for evaluating the constitutionality of these ordinances. The Court’s

analysis proceeded in three steps. First, the Court found

that the ordinance did not ban adult theaters altogether,

but merely required that they be distanced from certain

sensitive locations. Id. Next, the Court considered whether

the ordinance was content-neutral or content-based. If an

ordinance is content-based, it is presumptively invalid

and subject to strict scrutiny. Id. at 46-47. On the other

hand, if an ordinance is aimed not at the content of the

films shown at adult theaters, but rather at combating the

secondary effects of such theaters on the surrounding community (e.g., increased crime rates, diminished property

values), it will be treated as a content-neutral regulation.

Id. In Renton, the Court held that the zoning ordinance

was a “content neutral” regulation of speech because while
26 No. 01-4351

22 See also American Mini Theatres, 427 U.S. at 80 (Powell, J.,

concurring) (“Nor is there doubt that the interests furthered

by this ordinance are both important and substantial”).

“the ordinance treats theaters that specialize in adult

films differently from other kinds of theaters . . . . [it] is

aimed not at the content of the films shown . . . but rather

at the secondary effects of such theaters on the surrounding community.” 475 U.S. at 47. Finally, given this finding,

the Renton Court found that the zoning ordinance would

be upheld as a valid time, place and manner regulation,

id. at 46, if it “was designed to serve a substantial governmental interest and [did] not unreasonably limit alternative avenues of communication.” Id. at 47. The Court

concluded that the zoning ordinance met this test, noting

that a “ ‘city’s interest in attempting to preserve the quality

of urban life is one that must be accorded high respect.’ ”

id. at 50 (quoting American Mini Theatres, 427 U.S. at 71),22

and that the ordinance allowed for reasonable alternative avenues of communication because there was “ample,

accessible real estate” open for use as adult theater sites.

Id. at 53.

The Supreme Court’s decision in Renton is also notable because in addition to upholding the constitutionality of

the zoning ordinance, the Court also held that the

First Amendment did not require municipalities, before

enacting such ordinances, to conduct new studies or produce evidence independent of that already generated by

other cities (whether summarized in judicial decisions or

not), Renton, 475 U.S. at 51-52, so long as “whatever evidence [a] city relies upon is reasonably believed to be

relevant to the problem that the city addresses.” Id.
No. 01-4351 27

23 In doing so, the Barnes plurality noted that the O’Brien test

and the time, place, and manner test utilized by the Court

(continued...)

(3) Barnes v. Glen Theatre, Inc.

In Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991), the

Supreme Court was called upon to address the constitutionality of Indiana’s public indecency statute. In a splintered

decision, a narrow majority of the Court held that the

statute—which prohibited nudity in public places—could

be enforced against establishments featuring nude dancing, i.e., by requiring dancers to wear pasties and G-strings

during their performances, without violating the First

Amendment’s right of free expression. Id. at 565 (plurality

opinion); id. at 572 (Scalia, J. concurring); id. at 582, 585

(Souter, J. concurring). Of that majority, however, only three

Justices agreed on a single rationale.

The plurality—Chief Justice Rehnquist and Justices

O’Connor and Kennedy—began its analysis by emphasizing that while “nude dancing . . . is expressive conduct

within the outer perimeters of the First Amendment . . . .

[w]e must [still] determine the level of protection to be

afforded to the expressive conduct at issue, and . . . whether

the Indiana statute is an impermissible infringement of

that protected activity.” Barnes, 501 U.S. at 566. The plurality noted that the public indecency statute did not “ban[ ]

nude dancing, as such, but . . . proscribed public nudity

across the board,” id., and that “the Supreme Court of

Indiana has construed the Indiana statute to preclude

nudity in what are essentially places of public accommodation.” Id. Next, the plurality concluded that the public indecency statute should be analyzed under O’Brien’s

four-part test for evaluating regulations of expressive

conduct protected by the First Amendment.23 Applying this
28 No. 01-4351

23 (...continued)

in Renton have “been interpreted to embody much the same

standards . . . .” 501 U.S. at 566.

test, the plurality found “that Indiana’s public indecency

statute [was] justified despite its incidental limitations

on some expressive activity,” id. at 567, because: (1) the

statute was “clearly within the constitutional power of the

State and furthers substantial governmental interests [i.e.,

protecting societal order and morality],” id. at 568; (2) the

state’s interest in protecting societal order and morality

by enforcing the statute to prohibit nude dancing was

“unrelated to the suppression of free expression” because

“the requirement that the dancers don pasties and G-strings

does not deprive the dance of whatever erotic message

it conveys; it simply makes the message slightly less graphic [and] [t]he perceived evil that Indiana seeks to address

is not erotic dancing, but public nudity,” id. at 570-71; (3)

the incidental restriction on First Amendment freedom

placed on nude dancing by the statute was no greater than

essential to the furtherance of the governmental interest

because “[t]he statutory prohibition is not a means to

some greater end, but an end in itself,” id. at 571-72; and

(4) the public indecency statute was narrowly tailored

because “Indiana’s requirement that the dancers wear

pasties and G-strings is modest, and the bare minimum

necessary to achieve the State’s purpose.” Id. at 572 (emphasis

added).

Justice Scalia concurred in the judgment of the Court, but

in doing so expressed his opinion that “the challenged

regulation must be upheld not because it survives some

lower level of First Amendment scrutiny, but because, as

a general law regulating conduct and not specifically directed at expression, it is not subject to First Amendment
No. 01-4351 29

24 Under Marks, 430 U.S. at 193, Justice Souter’s concurrence is

the controlling opinion in Barnes, as the most narrow opinion

joining the judgment of the Court. Schultz, 228 F.3d at 842 n.2;

DiMa Corp., 185 F.3d at 830.

scrutiny at all.” Id. at 572. Justice Souter also concurred

in the judgment of the Court, agreeing with the plurality

that “the appropriate analysis to determine the actual

protection required by the First Amendment is the fourpart inquiry described in United States v. O’Brien.” Id. at

582. He wrote separately, however, to rest his concurrence

in the judgment, “not on the possible sufficiency of society’s

moral views to justify the limitations at issue, but on the

State’s substantial interest in combating the secondary

effects of adult entertainment establishments . . . .”

Id.

24 In doing so, Justice Souter relied heavily on the

Court’s decision in Renton. Id. at 583-87.

(4) City of Erie v. Pap’s A.M.

The Supreme Court revisited the Barnes holding in City

of Erie v. Pap’s A.M., 529 U.S. 277 (2000), where a majority

of the Court upheld the constitutionality of a public indecency ordinance “strikingly similar” to the one at issue in

Barnes. Id. at 283. Unlike Barnes, however, in Pap’s A.M.

five justices agreed that the proper framework for analyzing public indecency statutes was O’Brien’s four-part test.

Id. at 289 (plurality opinion) (“We now clarify that government restrictions on public nudity . . . should be evaluated under the framework set forth in O’Brien for contentneutral restrictions on symbolic speech”); id. at 310

(Souter, J., concurring in part and dissenting in part)

(agreeing with the “analytical approach that the plurality

employs in deciding this case [i.e., the O’Brien test]”). See
30 No. 01-4351

also Ranch House, Inc. v. Amerson, 238 F.3d 1273, 1278 (11th

Cir. 2001) (holding that “[a]lthough no opinion in [Pap’s

A.M.] was joined by more than four Justices, a majority of

the Court basically agreed on how these kinds of statutes

should be analyzed [i.e., O’Brien’s four-part test]”). A

majority of the Justices also agreed that combating the

adverse secondary effects of nude dancing was within

the city’s constitutional powers and unrelated to the suppression of free expression, Pap’s A.M., 529 U.S. at 296,

301 (plurality opinion) (“Erie’s efforts to protect public

health and safety are clearly within the city’s police powers . . . . [and] [t]he ordinance is unrelated to the suppression of free expression . . . .”); id. at 310 (Souter, J., concurring in part and dissenting in part) (“Erie’s stated interest

in combating the secondary effects associated with nude

dancing establishments is an interest unrelated to the

suppression of expression . . . .”), thus satisfying the first

and third prongs of the O’Brien test.

A majority of the Justices in Pap’s A.M. could not, however, agree on whether the public indecency statute furthered an important or substantial interest of the city

(second prong of O’Brien), and if so whether the incidental

restriction on nude dancing was no greater than that

essential to the furtherance of this interest (fourth prong).

The plurality—Chief Justice Rehnquist and Justices O’Connor, Kennedy, and Breyer—concluded that Erie’s public

indecency ordinance furthered an important or substantial government interest under O’Brien because “[t]he

asserted interests of regulating conduct through a public nudity ban and of combating the harmful secondary

effects associated with nude dancing [e.g., the increased

crime generated by such establishments] are undeniably
No. 01-4351 31

25 The Pap’s A.M. plurality’s reliance on Renton’s secondary effects doctrine is significant because it marks a departure from

the Barnes plurality’s determination that a public indecency

ordinance may be justified by a State’s interest in protecting

societal order and morality, Barnes, 501 U.S. at 568, and an

adoption of the approach advocated by Justice Souter in his

concurrence in that case. Id. at 582.

important.” Pap’s A.M., 529 U.S. at 296.25 The Pap’s A.M.

plurality also found that Erie’s public indecency statute

was no greater than that essential to furthering the city’s

interest in combating the harmful secondary effects of

nude dancing because:

The ordinance regulates conduct, and any incidental

impact on the expressive element of nude dancing is

de minimis. The requirement that dancers wear pasties

and G-strings is a minimal restriction in furtherance

of the asserted government interests, and the restriction leaves ample capacity to convey the dancer’s

erotic message.

529 U.S. at 301.

Justice Scalia, joined by Justice Thomas, agreed with the

plurality that the ordinance should be upheld, but wrote

separately to emphasize that “ ‘as a general law regulating

conduct and not specifically directed at expression, [the

city’s public indecency ordinance] is not subject to First

Amendment scrutiny at all,’ ” Pap’s A.M., 529 U.S. at 307-08

(quoting Barnes, 501 U.S. at 572 (Scalia, J., concurring)), and

that “[t]he traditional power of government to foster

good morals (bonos mores), and the acceptability of the

traditional judgment (if Erie wishes to endorse it) that nude

public dancing itself is immoral, have not been repealed

by the First Amendment.” Id. at 310. Justice Souter con-
32 No. 01-4351

curred in part and dissented in part, stressing his belief

that “the current record [does not] allow us to say that

the city has made a sufficient evidentiary showing to

sustain its regulation . . . .” Id. at 310-11. Justice Stevens,

joined by Justice Ginsburg, dissented, asserting that the

ordinance was a “patently invalid” content-based ban on

nude dancing that censored protected speech. Id. at 331-32.

Because the plurality’s decision offers the narrowest

ground for the Supreme Court’s holding in Pap’s A.M., we

find the reasoning of that opinion to be controlling. Marks,

430 U.S. at 193.

(5) City of Los Angeles v. Alameda Books, Inc.

This past term in City of Los Angeles v. Alameda Books, Inc.,

122 S.Ct. 1728 (2002), the Supreme Court upheld, at the

summary judgment stage, an ordinance prohibiting multiple adult entertainment businesses from operating in the

same building. Id. at 1733. The Court reached this conclusion despite the fact that the city had not, prior to the

enactment of the ordinance, conducted or relied upon

studies (or other evidence) specifically demonstrating

that forbidding multiple adult entertainment businesses

from operating under one roof reduces secondary effects.

Id. at 1736 (plurality opinion); id. at 1744 (Kennedy, J.,

concurring). Once again, however, a majority of the Court

could not agree on a single rationale for this decision.

The primary issue in Alameda Books was the appropriate

standard “for determining whether an ordinance serves

a substantial government interest under Renton.” 122

S.Ct. at 1733. The plurality—written by Justice O’Connor

and joined by Chief Justice Rehnquist and Justices Scalia

and Thomas—concluded that whether a municipal ordinance is “ ‘designed to serve a substantial government
No. 01-4351 33

interest and does not unreasonably limit alternative avenues

of communication’ . . . requires [courts to] . . . ask[ ] whether

the municipality can demonstrate a connection between

the speech regulated by the ordinance and the secondary

effects that motivated the adoption of the ordinance.” Id.

at 1737. According to the plurality, this requirement is met

if the evidence upon which the municipality enacted the

regulation “ ‘is reasonably believed to be relevant’ for demonstrating a connection between [secondary effects producing] speech and a substantial, independent government

interest.” Id. at 1736. The plurality stressed that once a

municipality presents a rational basis for addressing the

secondary effects of adult entertainment through evidence

that “fairly support[s] the municipality’s rationale for its

ordinance,” id., the plaintiff challenging the constitutionality of the ordinance must “cast direct doubt on this rationale, either by demonstrating that the municipality’s evidence does not support its rationale or by furnishing

evidence that disputes the municipality’s factual findings.”

Id. If a plaintiff fails to cast doubt on the municipality’s

rationale, the inquiry is over and “the municipality meets

the standard set forth in Renton.” Id. If, however, a plaintiff succeeds “in casting doubt on a municipality’s rationale

in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing

support for a theory that justifies its ordinance.” Id. Because

the plurality concluded that the city, for purposes of summary judgment, had complied with the evidentiary requirement outlined in Renton, id., it remanded the case for further proceedings. Id. at 1738.

Justice Scalia, in addition to joining the plurality opinion,

wrote separately to emphasize that while the plurality’s

opinion “represents a correct application of our jurisprudence concerning the regulation of the ‘secondary effects’

of pornographic speech . . . . our First Amendment tradi-
34 No. 01-4351

26 The plurality in Alameda Books characterized the second step

of the Renton framework as follows: “[w]e next consider[ ]

whether the ordinance [is] content neutral or content based.” 122

(continued...)

tions make ‘secondary effects’ analysis quite unnecessary.

The Constitution does not prevent those communities

that wish to do so from regulating, or indeed entirely suppressing, the business of pandering sex.” Alameda Books,

122 S.Ct. at 1738-39.

Justice Kennedy concurred in the judgment of the

Court, but writing separately because he concluded,

inter alia, that “the plurality’s application of Renton might

constitute a subtle expansion, with which I do not concur.” Id. at 1739. He began, however, by expressing his

agreement with the plurality that the secondary effects

resulting from “high concentrations of adult businesses

can damage the value and integrity of a neighborhood,”

id., stressing “[t]he damage is measurable; it is all too real.”

Id. He also agreed with the plurality that “[t]he law does

not require a city to ignore these consequences if it uses

its zoning power in a reasonable way to ameliorate them

without suppressing speech,” id., emphasizing that “[a]

city’s ‘interest in attempting to preserve the quality of

urban life is one that must be accorded high respect.’ ” Id.

(quoting American Mini Theatres, 427 U.S. at 71). In Justice

Kennedy’s opinion, if a municipality ameliorates the secondary effects of adult entertainment through “the traditional exercise of its zoning power, and at the same

time leaves the quantity and accessibility of the speech

substantially undiminished, there is no First Amendment

objection . . . . even if the measure identifies the problem

outside by reference to the speech inside—that is, even if

the measure is in that sense content based.”26 Id. Like
No. 01-4351 35

26 (...continued)

S.Ct. at 1734. In his concurrence, Justice Kennedy joined the

four dissenters, id. at 1744-45, in jettisoning the “content neutral” label, noting that the “fiction” of adult entertainment zoning ordinances being “content neutral . . . is perhaps more

confusing than helpful . . . . These ordinances are content based

and we should call them so.” Id. at 1741. In reaching this conclusion, Justice Kennedy emphasized that “whether a statute

is content neutral or content based is something that can be

determined on the face of it; if the statute describes speech

by content then it is content based.” Id. Justice Kennedy concluded, however, that an adult entertainment zoning ordinance

is not subject to strict scrutiny simply because it “identifies

the problem outside by reference to the speech inside,” id. at

1740, and, as such, “the central holding of Renton is sound: A

zoning restriction that is designed to decrease secondary effects

and not speech should be subject to intermediate rather than

strict scrutiny.” Id. at 1741. Thus, while the label has changed,

the substance of Renton’s second step remains the same.

the plurality, he concluded that “[a] zoning law need not

be blind to the secondary effects of adult speech, so long

as the purpose of the law is not to suppress it.” Id. at 1740.

He also expressed his belief that zoning regulations “do

not automatically raise the specter of impermissible content discrimination, even if they are content based, because they have a prima facie legitimate purpose: to limit

the negative externalities of land use . . . [and that] [t]he

zoning context provides a built-in legitimate rationale,

which rebuts the usual presumption that content-based

restrictions are unconstitutional.” Id. at 1741.

Based on the foregoing principles, Justice Kennedy

believes that two questions must be asked by a court

seeking to determine whether a zoning ordinance regulating adult entertainment is designed to meet a substantial
36 No. 01-4351

government interest: (1) “what proposition does a city need

to advance in order to sustain a secondary-effects ordinance?”, Alameda Books, 122 S.Ct at 1741; and (2) “how

much evidence is required to support the proposition?”

Id. According to Justice Kennedy, the plurality skipped

the second question, giving the correct answer, but neglected to give sufficient “attention” to the first question,

id., i.e., “the claim a city must make to justify a contentbased ordinance.” Id. at 1742. In his view, “a city must

advance some basis to show that its regulation has the

purpose and effect of suppressing secondary effects,

while leaving the quantity and accessibility of speech

substantially intact,” id., and “[t]he rationale of the ordinance must be that it will suppress secondary effects . . .

not . . . speech.” Id. Justice Kennedy’s primary area of

disagreement with the plurality’s analysis was that, in his

opinion, it failed to “address how speech [would] fare

under the city’s ordinance.” Id.

The differences between Justice Kennedy’s concurrence and the plurality’s opinion are, however, quite subtle. Justice Kennedy’s position is not that a municipality

must prove the efficacy of its rationale for reducing secondary effects prior to implementation, as Justice Souter

and the other dissenters would require, see generally

Alameda Books, 122 S.Ct at 1744-51; but that a municipality’s

rationale must be premised on the theory that it “may reduce

the costs of secondary effects without substantially reducing speech.” Id. at 1742 (emphasis added). Significantly,

while Justice Kennedy believed that the plurality did not

adequately address this aspect of the city’s rationale, he

agreed with the plurality’s overall conclusion that a municipality’s initial burden of demonstrating a substantial

government interest in regulating the adverse secondary

effects associated with adult entertainment is slight, noting:
No. 01-4351 37

As to this, we have consistently held that a city must

have latitude to experiment, at least at the outset, and

that very little evidence is required . . . . As a general

matter, courts should not be in the business of secondguessing fact-bound empirical assessments of city

planners. The Los Angeles City Council knows the

streets of Los Angeles better than we do. It is entitled

to rely on that knowledge; and if its inferences appear

reasonable, we should not say there is no basis for its

conclusion.

Id. at 1742-43 (emphasis added).

The dissenting opinion of Justice Souter, joined by Justices Stevens and Ginsburg in full and by Justice Breyer

with respect to part II, asserted that the Court should

have struck down the ordinance. Alameda Books, 122 S.Ct.

at 1747 (Souter, J., dissenting).

Because Justice Kennedy’s concurrence is the narrowest

opinion joining the judgment of the Court in Alameda

Books, we conclude that it is the controlling opinion. Marks,

430 U.S. at 193.

D. Does Section 5(b)’s prohibition of alcohol on the

premises of Sexually Oriented Businesses violate

the First Amendment?

Based on the road map provided by the Supreme Court

in 44 Liquormart, as described supra, we conclude that a

liquor regulation prohibiting the sale or consumption of

alcohol on the premises of adult entertainment establishments is constitutional if: (1) the State is regulating pursuant to a legitimate governmental power, O’Brien, 391 U.S.

at 377; (2) the regulation does not completely prohibit

adult entertainment, Renton, 475 U.S. at 46; (3) the regula-
38 No. 01-4351

27 This prong is, for all practical purposes, identical to the

Alameda Books plurality’s inquiry into whether the zoning

ordinance “was content neutral or content based.” 122 S.Ct. at

1733-34. Although a majority of the Justices no longer employ

the content neutral label when evaluating the constitutionality

of a “secondary effects” ordinance, the ultimate inquiry remains

the same. See supra n.26.

tion is aimed not at the suppression of expression, but

rather at combating the negative secondary effects caused

by adult entertainment establishments, Pap’s A.M., 529 U.S.

at 289-91;27 and (4) the regulation is designed to serve a

substantial government interest, narrowly tailored, and

reasonable alternative avenues of communication remain

available, see Alameda Books, 122 S.Ct. at 1734 (plurality

opinion); id. at 1739-44 (Kennedy, J. concurring); or, alternatively, the regulation furthers an important or substantial government interest and the restriction on expressive conduct is no greater than is essential in furtherance

of that interest. Pap’s A.M., 529 U.S. at 296, 301 (plurality

opinion); id. at 310 (Souter, J., concurring in part and

dissenting in part).

Applying the foregoing analytical framework here, we

conclude that Section 5(b) does not violate the First Amendment. To begin with, the Village’s regulation of alcohol

sales and consumption in “inappropriate locations” is clearly within its general police powers. 44 Liquormart, 517 U.S.

at 515; LaRue, 409 U.S. at 114. As such, the Village enacted Section 5(b) “within the constitutional power of the

Government.” Pap’s A.M., 529 U.S. at 296 (holding that

a municipality’s efforts to protect the public’s health and

safety through its general police powers satisfies this

requirement); O’Brien, 391 U.S. at 377 (same).

The next two prongs of our test concern the level of

constitutional scrutiny that must be applied to Section 5(b).
No. 01-4351 39

The level of First Amendment scrutiny a court uses to

determine whether a regulation of adult entertainment is

constitutional depends on the purpose for which the

regulation was adopted. If the regulation was enacted to

restrict certain viewpoints or modes of expression, it is

presumptively invalid and subject to strict scrutiny. Texas

v. Johnson, 491 U.S. 397, 403, 411-12 (1989); Renton, 475

U.S. at 46-47. If, on the other hand, the regulation was

adopted for a purpose unrelated to the suppression of

expression—e.g., to regulate nonexpressive conduct or the

time, place, and manner of expressive conduct—a court

must apply a less demanding intermediate scrutiny. 491

U.S. at 406-07; Pap’s A.M., 529 U.S. at 289 (plurality opinion); id. at 310 (Souter, J., concurring in part and dissenting in part).

The Supreme Court has held that regulations of adult

entertainment receive intermediate scrutiny if they are

designed not to suppress the “content” of erotic expression, but rather to address the negative secondary effects

caused by such expression. Alameda Books, 122 S.Ct. at 1733-

34 (plurality opinion), id. at 1741 (Kennedy, J., concurring);

Renton, 475 U.S. at 48. Here, Section 5(b), like the liquor

regulations at issue in LaRue, 409 U.S. at 118, does not

completely prohibit Ben’s Bar’s dancers from conveying

an erotic message; it merely prohibits alcohol from being sold or consumed on the premises of adult entertainment establishments. See, e.g., Wise Enterprises, Inc. v.

Unified Gov’t of Athens-Clarke County, Georgia, 217 F.3d

1360, 1365 (11th Cir. 2000) (holding that “[t]he ordinance

does not prohibit all nude dancing, but only restricts

nude dancing in those locations where the unwanted

secondary effects arise”); Sammy’s of Mobile, Ltd. v. City

of Mobile, 140 F.3d 993, 998 (11th Cir. 1998) (holding that

ordinance prohibiting alcohol on the premises of adult

entertainment establishments did not ban nude dancing,

but merely restricted “the place or manner of nude danc-
40 No. 01-4351

28 Federal courts evaluating the “predominant concerns” behind

the enactment of a statute, ordinance, regulation, or the like,

may do so by examining a wide variety of materials including,

but not limited to, the text of the regulation or ordinance,

any preamble or express legislative findings associated with

it, and studies and information of which legislators were clearly aware. Ranch House, 238 F.3d at 1280.

ing without regulating any particular message it might

convey”). Moreover, it is clear that the “predominant concerns” motivating the Village’s enactment of Section 5(b)

“ ‘were with the secondary effects of adult [speech], and

not with the content of adult [speech].’ ”Alameda Books,

122 S.Ct. at 1737 (plurality opinion) (quoting Renton, 475

U.S. at 47); id. at 1739-41 (Kennedy, J., concurring).28 The

Village enacted the Ordinance because it believed “there

is convincing documented evidence that Sexually Oriented Businesses have a deleterious effect on both existing businesses around them and the surrounding residential areas adjacent to them, causing increased crime and

the downgrading of property values.” Specifically, the

Village concluded that “the consumption of alcoholic beverages on the premises of a Sexually Oriented Business

exacerbates the deleterious secondary effects of such

businesses on the community.” Additionally, in passing

the Ordinance, the Village emphasized (in the text of

the Ordinance) that its intention was not “to suppress

any speech activities protected by the First Amendment,

but to enact a[n] . . . ordinance which addresses the secondary effects of Sexually Oriented Businesses,” and

that it was not attempting to “restrict or deny access by

adults to sexually oriented-materials protected by the First

Amendment . . . .”

For all of the foregoing reasons, Section 5(b) is properly

analyzed as a content-based time, place, and manner
No. 01-4351 41

29 Compare G.Q. Gentlemen’s Quarters, Inc. v. City of Lake Ozark,

Missouri, 83 S.W.3d 98, 103 (Mo. Ct. App. 2002) (holding that

because the city presented no evidence that its purpose in

enacting an ordinance restricting nudity in establishments

where alcoholic beverages are sold “was to prevent the negative secondary effects associated with erotic dancing establishments, and, thus, that the ordinance was unrelated to the

suppression of expression, the City had the heavy burden of

justifying the ordinance under the strict scrutiny standard”).

restriction, or as a content-based regulation of expressive

conduct, and therefore is subject only to intermediate

scrutiny. Alameda Books, 122 S.Ct. at 1733-36 (plurality

opinion), id. at 1741 (Kennedy, J. concurring); Pap’s A.M.,

529 U.S. at 294-96 (plurality opinion), id. at 310 (Souter,

J., concurring in part and dissenting in part).29 See also

Artistic Entm’t, Inc. v. City of Warner Robins, 223 F.3d 1306,

1308-09 (11th Cir. 2000) (holding that “a prohibition on

the sale of alcohol at adult entertainment venues . . . [is]

content-neutral and subject to the O’Brien test”); Wise

Enterprises, 217 F.3d at 1364 (holding that “[i]t is clear from

these [legislative] statements the County’s ordinance is

aimed at the secondary effects of nude dancing combined

with the consumption of alcoholic beverages, not at the

message conveyed by nude dancing . . . . [T]he district court

was [therefore] correct in [applying] . . . intermediate

scrutiny . . . .”). Regulations that prohibit nude dancing

where alcohol is served or consumed are independent

of expressive or communicative elements of conduct, and

therefore are treated as if they were content-neutral. Wise

Enterprises, 217 F.3d at 1363.

This brings us to the heart of our analysis: whether Section 5(b) is designed to serve a substantial government

interest, narrowly tailored, and does not unreasonably limit alternative avenues of communication, or, alterna-
42 No. 01-4351

30 As noted supra, under Marks v. United States, 430 U.S. 188

(1977), Justice Kennedy’s concurrence is the controlling opinion, as the most narrow opinion joining the judgment of the

Court.

tively, furthers an important or substantial government

interest and the restriction on expressive conduct is no

greater than is essential in furtherance of that interest. As

previously noted, it is not entirely clear whether an adult

entertainment liquor regulation is to be treated as a time,

place, and manner regulation, or instead as a regulation

of expressive conduct under O’Brien. See, e.g., LLEH, Inc.,

289 F.3d at 365. But in either case, we are required to ask

“whether the municipality can demonstrate a connection

between the speech regulated by the ordinance and the

secondary effects that motivated the adoption of the ordinance.” Alameda Books, 122 S.Ct. at 1737 (plurality opinion).

At this stage, courts must “examine evidence concerning

regulated speech and secondary effects.” Id. In conducting this inquiry, we are required, as previously noted, to

answer two questions: (1) “what proposition does a city

need to advance in order to sustain a secondary-effects

ordinance?”; and (2) “how much evidence is required to

support the proposition?” Id. at 1741 (Kennedy, J. concurring).30

At the outset, we note that in order to justify a contentbased time, place, and manner restriction or a content-based

regulation of expressive conduct, a municipality “must

advance some basis to show that its regulation has the

purpose and effect of suppressing secondary effects [i.e.,

is designed to serve, or furthers, a substantial or important governmental interest], while leaving the quantity

and accessibility of speech substantially intact [i.e., that

the regulation is narrowly tailored and does not unrea-
No. 01-4351 43

31 In this case, it is unnecessary to conclusively resolve which

of these two standards is applicable. As explained infra, Section 5(b)’s alcohol prohibition is, as a practical matter, the

least restrictive means of furthering the Village’s interest in

combating the secondary effects resulting from the combination of adult entertainment and alcohol consumption, and

therefore satisfies either standard.

sonably limit alternative avenues of communication, or,

alternatively, that the restriction on expressive conduct

is no greater than is essential in furtherance of that interest].”31 Alameda Books, 122 S.Ct at 1741 (Kennedy, J. concurring). The regulation may identify the speech based on

content, “but only as a shorthand for identifying the

secondary effects outside.” Id. A municipality “may not

assert that it will reduce secondary effects by reducing

speech in the same proportion.” Id. Thus, the rationale

behind the enactment of Section 5(b) must be that it will

suppress secondary effects, not speech. Id.

The Village’s rationale in support of Section 5(b) is that

the liquor prohibition will significantly reduce the secondary effects that naturally result from combining adult

entertainment with the consumption of alcoholic beverages without substantially diminishing the availability

of adult entertainment, in this case nude and semi-nude

dancing. In enacting the Ordinance, the Village Board

relied on numerous judicial decisions, studies from 11

different cities, and “findings reported in the Regulation

of Adult Entertainment Establishments of St. Croix, Wisconsin; and the Report of the Attorney General’s Working Group of Sexually Oriented Businesses (June 6, 1989,

State of Minnesota),” to support its conclusion that adult

entertainment produces adverse secondary effects.
44 No. 01-4351

Ben’s Bar argues that the Village may not rely on prior

judicial decisions or the experiences of other municipalities, but must instead conduct its own studies, at the

local level, to determine whether adverse secondary effects

result when liquor is served on the premises of adult

entertainment establishments. This view, however, has

been expressly (and repeatedly) rejected by the Supreme

Court. Alameda Books, 122 S.Ct. at 1743 (Kennedy, J. concurring) (holding that “ ‘[t]he First Amendment does not

require a city, before enacting . . . an [adult entertainment

secondary effects] ordinance to conduct new studies or

produce evidence independent of that already generated

by other cities, so long as whatever evidence the city relies

upon is reasonably believed to be relevant to the problem

that the city addresses.’ ”) (quoting Renton, 475 U.S. at 51-

52); Barnes, 501 U.S. at 584 (Souter, J. concurring) (same).

Ben’s Bar also contends that the Village failed to meet

its burden of demonstrating the constitutionality of Section 5(b) because “the Village’s evidentiary record did

not include any written reports relating specifically to the

effects of serving alcohol in establishments offering nude

and semi-nude dancing.” In LaRue, however, the Supreme

Court explicitly held that a State’s conclusion that “certain

sexual performances and the dispensation of liquor by

the drink ought not to occur at premises that have licenses was not an irrational one.” 409 U.S. at 118. Because

the adult entertainment at issue in this case is of the

same character as that at issue in LaRue, it was entirely

reasonable for the Village to conclude that barroom nude

dancing was likely to produce adverse secondary effects

at the local level, even in the absence of specific studies

on the matter. Alameda Books, 122 S.Ct. at 1736-37 (plurality opinion) (adopting view of plurality in Pap’s A.M. as

to the evidentiary requirement for adult entertainment

cases), id. at 1741 (Kennedy, J., concurring) (agreeing with
No. 01-4351 45

the plurality on this point, as a fifth vote); Pap’s A.M., 529

U.S. at 296-97 (plurality opinion) (same); Giovani, 303 F.3d

at 516 (same). In fact, the Supreme Court has gone so far

as to assert that “[c]ommon sense indicates that any form

of nudity coupled with alcohol in a public place begets

undesirable behavior.” Bellanca, 452 U.S. at 718. See also

Blue Canary, 251 F.3d at 1124 (noting that “[l]iquor and

sex are an explosive combination”); Department of Alcoholic Beverage Control v. Alcoholic Beverage Control Appeals

Bd. of California, 121 Cal. Rptr. 2d 729, 737 (Cal. Ct. App.

2002) (same). For these reasons, we conclude that the

evidentiary record fairly supports the Village’s proffered

rationale for Section 5(b), and that Ben’s Bar has failed “to

cast direct doubt on this rationale either by demonstrating the [Village’s] evidence does not support its rationale

or by furnishing evidence that disputes the [Village’s]

factual findings . . . .” Alameda Books, 122 S.Ct. at 1736.

Ben’s Bar also contends that Section 5(b) is not narrowly tailored because the Village offered no evidence

that “the incidental restrictions placed on Ben’s [Bar],

over and above the pasties and G-strings requirement,

ameliorate any purported negative secondary effects.”

This argument, however, is problematic for several reasons,

two of which we will address briefly.

First, as previously noted, Section 5(b) does not impose any restrictions whatsoever on a dancer’s ability to

convey an erotic message. Instead, the regulation prohibits Sexually Oriented Businesses like Ben’s Bar from

serving alcoholic beverages to its patrons during a dancer’s performance. This is not a restriction on erotic expression, but a prohibition of nonexpressive conduct (i.e.,

serving and consuming alcohol) during the presentation

of expressive conduct. The First Amendment does not

entitle Ben’s Bar, its dancers, or its patrons, to have alco-
46 No. 01-4351

32 In an affidavit filed with the district court, Barry Breault, partowner of Ben’s Bar, stated that:

The bulk of Ben’s Bar’s revenues are derived from beverage

sales and associated food sales. Revenues from adult entertainment . . . account for only about one-third of Ben’s

(continued...)

hol available during a “presentation” of nude or semi-nude

dancing. See Gary v. City of Warner Robins, Georgia, 311

F.3d 1334, 1340 (11th Cir. 2002) (holding that ordinance

prohibiting persons under the age of 21 from entering or

working at “any establishment . . . which sells alcohol by the

drink for consumption on premises” did not violate an

underage nude dancer’s First Amendment right to free

expression because she “remains free to observe and engage in nude dancing, but she simply cannot do so . . . in

establishments that primarily derive their sales from alcoholic beverages consumed on the premises”); Sammy’s of

Mobile, 140 F.3d at 999 (holding that while nude dancing

is entitled to a degree of protection under the Supreme

Court’s First Amendment jurisprudence, “we are unaware

of any constitutional right to drink while watching nude

dancing”); Dept. of Alcoholic Beverage Control, 121 Cal. Rptr.

2d at 895 (noting that “[t]he State . . . has not prohibited

dancers from performing with the utmost level of erotic

expression. They are simply forbidden to do so in establishments which serve alcohol, and the Constitution is

thereby not offended”). What the First Amendment does

require is that establishments like Ben’s Bar be given “a

‘reasonable opportunity’ to disseminate the speech at issue.”

North Ave. Novelties, Inc. v. City of Chicago, 88 F.3d 441, 445

(7th Cir. 1996). A “reasonable opportunity,” however, does

not include a concern for economic considerations. Renton,

475 U.S. at 54.32
No. 01-4351 47

32 (...continued)

revenues. Ben’s Bar cannot operate at a profit without the revenue from the sale of alcoholic beverages, and the business such

sales bring in.

(Emphasis added.)

33 This section of the Ordinance also emphasizes that “[w]hile

expressive live nudity may occur within these establishments

[those noted in section (6)], this ordinance seeks only to minimize and prevent the secondary effects of Sexually Oriented

Businesses on the community. Negative secondary effects

have not been associated with these establishments.”

Second, Section 5(b)’s alcohol prohibition, like the one

in LaRue, is limited to adult entertainment establishments,

and does not apply to:

[T]heaters, performing arts centers, civic centers, and

dinner theaters where live dance, ballet, music, and

dramatic performances of serious artistic merit are

offered on a regular basis; and in which the predominant business or attraction is not the offering of entertainment which is intended for the sexual interests

or titillation of customers; and where the establishment is not distinguished by an emphasis on or the

advertising or promotion of nude or semi-nude performances.33

Ordinance A-472(6). Compare Giovani, 303 F.3d at 515 (noting that lack of evidentiary support for adult entertainment liquor regulations “might not pose a problem if the

challenged restrictions applied only to bars and clubs

that present nude or topless dancing”).

Finally, we note that Section 5(b)’s liquor prohibition is

no greater than is essential to further the Village’s substantial interest in combating the secondary effects resulting

from the combination of nude and semi-nude dancing
48 No. 01-4351

and alcohol consumption because, as a practical matter,

a complete ban of alcohol on the premises of adult entertainment establishments is the only way the Village can

advance that interest. As the Supreme Court recognized

in LaRue,

Nothing in the record before us or in common experience compels the conclusion that either self-discipline

on the part of the customer or self-regulation on the

part of the bartender could have been relied upon by

the Department to secure compliance with . . . [the]

regulation[s]. The Department’s choice of a prophylactic solution instead of one that would have required its own personnel to judge individual instances

of inebriation cannot, therefore, be deemed an unreasonable one . . . .

409 U.S. at 116. See also Wise Enterprises, Inc. v. Unified

Government of Athens-Clarke County, Georgia, 217 F.3d

1360, 1364-65 (11th Cir. 2000) (holding that ordinance

prohibiting alcohol on the premises of adult entertainment establishments satisfied O’Brien’s requirement that

restriction on First Amendment rights be no greater than

necessary to the furtherance of the government’s interest

because “[t]here is no less restrictive alternative”). Indeed,

unlike the zoning ordinance at issue in Alameda Books,

there is no need to speculate as to whether Section 5(b) will

achieve its stated purpose. Prohibiting alcohol on the

premises of adult entertainment establishments will unquestionably reduce the enhanced secondary effects resulting

from the explosive combination of alcohol consumption

and nude or semi-nude dancing.

Given the foregoing, we conclude that Section 5(b) does

not violate the First Amendment. The regulation has no

impact whatsoever on the tavern’s ability to offer nude

or semi-nude dancing to its patrons; it seeks to regulate
No. 01-4351 49

alcohol and nude or semi-nude dancing without prohibiting either. The citizens of the Village of Somerset may still

buy a drink and watch nude or semi-nude dancing. They

are not, however, constitutionally entitled to do both at

the same time and in the same place. Gary, 311 F.3d at

1338 (holding that there is no generalized right to associate with other adults in alcohol-purveying establishments

with other adults). The deprivation of alcohol does not

prevent the observer from witnessing nude or semi-nude

dancing, or the dancer from conveying an erotic message.

Perhaps a sober patron will find the performance less

tantalizing, and the dancer might therefore feel less appreciated (not necessarily from the reduction in ogling and cat

calls, but certainly from any decrease in the amount of tips

she might otherwise receive). And we do not doubt Ben’s

Bar’s assertion that its profit margin will suffer if it is unable

to serve alcohol to its patrons. But the First Amendment

rights of each are not offended when the show goes on

without liquor.

III.

For the reasons expressed in this opinion, Section 5(b)’s

prohibition of alcohol on the premises of adult entertainment establishments does not violate the First Amendment. We, therefore, affirm the district court’s decision

granting the Village’s motion for summary judgment.

A true Copy:

Teste:

 _____________________________

Clerk of the United States Court of 

Appeals for the Seventh Circuit 

USCA-02-C-0072—1-17-03