In the

United States Court of Appeals

For the Seventh Circuit

Nos. 98-4126 & 98-4209

Joseph Schultz, doing business as Island Bar,

and Tonya Norwood,

Plaintiffs-Appellees/Cross-Appellants,

v.

City of Cumberland, 

Defendant-Appellant/Cross-Appellee.

Appeals from the United States District Court

for the Western District of Wisconsin.

No. 98 C 107--Barbara B. Crabb, Judge.

Argued September 9, 1999--Decided September 26, 2000

 Before Coffey, Kanne and Evans, Circuit Judges.

 Kanne, Circuit Judge. The City of Cumberland had

sought for years to close the Island Bar, a strip

club within the small Wisconsin town, when it

enacted a municipal ordinance regulating

"sexually oriented businesses." The ordinance

imposed comprehensive regulations on the

operation of adult-entertainment establishments

in Cumberland. In response, Joseph Schultz, the

Island Bar’s owner, and Tonya Norwood, an Island

Bar exotic dancer, sued in district court

challenging the ordinance’s constitutionality

under the First Amendment. We uphold the portions

of the ordinance that serve as reasonable time,

place or manner restrictions and strike the

portions of the ordinance that ban sexually

explicit dance movements and disqualify certain

persons from holding adult-entertainment

licenses. 

I. History

 In Cumberland, Wisconsin, the Island Bar is the

lone sexually oriented business located in the

small town of 2,200 residents. The Island Bar

opened in 1993 and quickly attracted notoriety

when Schultz converted the bar into a strip club

featuring nude female dancers, including coplaintiff Norwood. After assiduous undercover

investigation by Barron County law enforcement,
Cumberland authorities discovered prostitution

and sexual contact between nude dancers and bar

patrons, and revoked the Island Bar’s liquor

license on October 12, 1994. The Island Bar later

reopened as a non-alcoholic bar, still featuring

nude female dancing, but two convictions of

Island Bar patrons for prostitution in March 1997

led to its closing for one year under Wis. Stat.

sec. 823.13 as a public nuisance. See State v.

Schultz, 582 N.W.2d 113 (Wis. Ct. App. 1998). 

 Unsatisfied with the one-year closure, the

Cumberland city council established a municipal

planning subcommittee dedicated to exploring more

restrictive methods of regulating nude dancing.

Happy to offer assistance were conservative

interest groups devoted to fighting "sexually

oriented businesses" (wittily abbreviated as

"SOBs"). For example, the National Family Legal

Foundation ("NFLF") provided a comprehensive

handbook entitled Protecting Communities From

Sexually Oriented Businesses. The handbook

explains that it "is not meant to be a neutral

overview of current methods of regulating ’adult’

businesses. This is a ’how-to’ manual for those

who are serious about protecting their

communities and doing battle with the incredibly

powerful and profitable sex club industry."

Copying virtually verbatim the NFLF’s model

regulation, Cumberland received comments on its

new draft ordinance from the NFLF and Morality in

Media, Inc., among others. 

 Following the NFLF’s instructions on "Making the

Legislative Record," Cumberland set about

constructing legislative findings to support the

NFLF ordinance in their community. The Cumberland

committee in charge of drafting the ordinance

divided research duties among its members. Mayor

Lawrence Samlaska reviewed police reports and

spoke to the Cumberland police about its

investigation of crime at the Island Bar.

Committee member Jeffrey Streeter researched the

appropriate zoning location for sexually oriented

businesses to minimize depreciation of real

estate values and disturbances of the peace.

Committee member Richard Nerbun obtained current

health statistics from the Centers for Disease

Control on sexually transmitted diseases and

included them in the ordinance findings. Nerbun

also considered the appropriate hours of

operation for sexually oriented businesses,

taking into account the proximity of the Island

Bar to schools and school bus stops, citizen

safety issues, the school schedule and hours-ofoperation provisions in the ordinances of other

cities. Committee member Carolyn Burns examined

past cases involving municipal regulation of

adult entertainment and reviewed studies

published by other communities concerning the
negative effects of adult businesses on

surrounding neighborhoods. Based ostensibly on

this research, supplemented heavily by NFLF

assistance, the subcommittee drafted a

legislative preamble lifted from the NFLF model

ordinance. It expressed Cumberland’s concern

about the adverse effects of sexually oriented

businesses on "the health, safety and welfare of

the patrons of such businesses as well as the

citizens of the City," including "prostitution

and sexual liaisons of a casual nature,"

"sexually transmitted diseases," the "deleterious

effect on both the existing businesses around

them and the surrounding residential areas

adjacent to them" and "objectionable operational

characteristics, particularly when they are

located in close proximity to each other, thereby

contributing to urban blight and downgrading the

quality of life in the adjacent area." 

 After a public hearing, the Cumberland planning

commission voted to recommend the ordinance to

the city council, and on January 6, 1998, the

city council unanimously adopted City of

Cumberland Ordinance 12.15 ("Ordinance"),

establishing a licensing and regulatory system

for all "sexually oriented businesses." First,

the Purpose and Findings Section explains that

the Ordinance has "neither the purpose nor effect

of imposing a limitation or restriction on the

content of any communicative materials." Instead,

the purpose of the Ordinance is "to regulate

sexually oriented businesses in order to promote

the health, safety, morals, and general welfare

of the citizens of the City" based on "the

adverse secondary effects of adult uses on the

community presented in hearings and in reports

made available to the Council, and on findings

incorporated in the cases of City of Renton v.

Playtime Theaters, Inc., 475 U.S. 41 (1986),

Young v. American Mini Theatres, 427 U.S. 50

(1976), and Barnes v. Glen Theatre, Inc., 501

U.S. 560 (1991), and on studies in other

communities." 

 Second, Section II defines the different types

of sexually oriented businesses subject to the

Ordinance. Cumberland and the plaintiffs agree

that the Island Bar is covered by the definitions

for two categories of sexually oriented business:

"adult theater" and "adult cabaret." Section

II(3) defines "Adult Cabaret":

a nightclub, bar, restaurant, or similar

commercial establishment which regularly

features:

(a) persons who appear in a state of nudity or

semi-nude; or
(b) live performances which are characterized by

the exposure of "specified anatomical areas" or

by "specified sexual activities"; or 

(c) films, motion pictures, video cassettes,

slides or other photographic reproductions which

are characterized by the depiction or description

of "specified sexual activities" or "specified

anatomical areas." 

Section II(7) defines "Adult Theater":

a theater, concert hall, auditorium, or similar

commercial establishment which regularly features

persons who appear in a state of nudity or seminude, or live performances which are

characterized by the exposure of "specified

anatomical areas" or by "specified sexual

activities."

In addition, the definitions for "adult arcade,"

"adult bookstore, novelty store or video store,"

"adult motel," "adult motion picture theater" and

"adult mini-motion picture theater" all

incorporate the phrase "characterized by the

depiction or description of ’specified sexual

activities’ or ’specified anatomical areas.’"

Specified sexual activities include "the fondling

or other erotic touching of human genitals, pubic

region, buttocks, anus, or female breasts"; "sex

acts, normal or perverted, actual or simulated,

including intercourse, oral copulation,

masturbation, or sodomy"; and "excretory

functions" in connection with sexual activity.

Cumberland Municipal Code Section 12.15, at sec.

II(24). Specified anatomical areas include "(a)

the human male genitals in a discernibly turgid

state, even if completely and opaquely covered;

or (b) less than completely and opaquely covered

human genitals, pubic region, buttocks or a

female breast below a point immediately above the

top of the areola." Id. at sec. II(22).

 Third, Section VIII(A) declares the following:

"It shall be a violation for a person who

knowingly and intentionally, in a sexually

oriented business, appears in a state of nudity

or depicts specified sexual activities." The

Ordinance defines "a state of nudity" as the

following:

[T]he showing of the human male or female

genitals, pubic area, vulva, anus, anal cleft or

cleavage with less than a fully opaque covering,

the showing of the female breast with less than

fully opaque covering of any part of the nipple,

or the showing of the covered male genitals in a

discernibly turgid state.

Section VIII(B) makes it a "violation" for an
employee of a sexually oriented business to

appear even semi-nude, unless the employee does

not receive any pay or gratuity from customers

and remains on a stage at least two feet off the

floor and at least ten feet from any customer.

The Ordinance defines "semi-nude condition" as

the following:

[T]he showing of the female breast below a

horizontal line across the top of the areola at

its highest point or the showing of the male or

female buttocks. This definition shall include

the entire lower portion of the human female

breast, but shall not include any portion of the

cleavage of the human female breast, exhibited by

a dress, blouse, skirt, leotard, bathing suit, or

other wearing apparel provided the areola is not

exposed in whole or in part. 

 Fourth, the Ordinance imposes operating

restrictions and licensing requirements on

sexually oriented businesses. Section X limits

sexually oriented businesses (except adult

motels) to business hours of 10 a.m. to midnight

Monday through Saturday, closed on Sunday.

Sections XI and XIII require operators of

sexually oriented businesses and their employees

to obtain licenses from Cumberland. Section

XIII(A) explains that Cumberland must issue an

employee license within thirty days of

application unless it finds any of the enumerated

reasons for denial, including overdue payment of

Cumberland taxes, fees or fines; recent denial or

revocation of a license or recent conviction for

a sex-related crime by the applicant or a

cohabitant of the applicant; and non-approval of

the premises of the sexually oriented business by

Cumberland inspectors under applicable laws and

ordinances./1 Applicants must provide a legal

name and any aliases, proof of age, residential

and business addresses, a recent photograph, a

physical description, fingerprints, driver’s

license information, a Social Security number and

the specified sex-related criminal history and

sexually oriented business license history for

both the applicant and the applicant’s

cohabitants. See id. at sec. XI(D)-(G).

Applicants for operators’ licenses must divulge

all this information in addition to the

identities of any partners, directors and

principal stockholders, and diagrams of both the

business’s interior and the 750-square-foot area

surrounding the business’s exterior. See id.

Section XIII(C) provides that Cumberland will

issue an operator’s license within thirty days of

receipt of a completed application, unless it

finds any of eight enumerated reasons by a

preponderance of the evidence. 

 Section XIII(E) guarantees that the health
department, fire department and building official

shall complete their inspection of an applicant’s

premises, necessary for licensing, within twenty

days of the application. Each application for a

sexually oriented business license requires a

$100 application and investigation fee. See id.

at sec. XIV(A). Section XVIII promises that

judicial review of denial, refusal to renew or

suspension of a license will be "promptly

reviewed" by a court of competent jurisdiction. 

 Fifth, Section XXII contains a sweeping

severability provision:

In the event any section, subsection, clause,

phrase or portion of this ordinance is for any

reason held illegal, invalid or unconstitutional

by any court of competent jurisdiction, such

portion shall be deemed a separate, distinct and

independent provision, and such holding shall not

affect the validity of the remainder of this

ordinance. It is the legislative intent of the

Common Council that this ordinance would have

been adopted if such illegal provision had not

been included or any illegal application had not

been made.

 On February 8, 1998, the plaintiffs sued

Cumberland in district court seeking a permanent

injunction against enforcement of the Ordinance,

alleging under 42 U.S.C. sec. 1983 that the

Ordinance violates their First Amendment rights

to present nude dancing at the Island Bar.

Cumberland agreed not to enforce the Ordinance

until the district court reached decision on

summary judgment. On November 5, 1998, the

district court held that the Ordinance imposed

content-neutral restrictions on expressive

conduct and upheld the Ordinance’s operating

regulations. See Schultz v. City of Cumberland,

26 F.Supp.2d 1128, 1144 (W.D. Wis. 1998).

However, the court also found that the Section

VIII(A) nudity ban is unconstitutionally

overbroad and that the employee-disclosure

provisions and several operator-license

requirements lacked rational connection in the

record to be deemed narrowly tailored to the

Ordinance’s purposes. See id. at 1150-51. After

finding the defective sections of the Ordinance

non-severable from the valid provisions, the

court granted summary judgment in favor of the

plaintiffs and permanently enjoined enforcement

of the Ordinance. See id. at 1152.

II. Analysis

 Although once furiously debated, it is now

well-established that erotic dancing of the sort

practiced at the Island Bar enjoys constitutional

protection as expressive conduct. See City of
Erie v. Pap’s A.M., ___ U.S. ___, 120 S.Ct. 1382,

1385 (2000); Miller v. Civil City of South Bend,

904 F.2d 1081, 1087 (7th Cir. 1990), rev’d sub

nom. on other grounds, Barnes v. Glen Theatre,

Inc., 501 U.S. 560 (1991). Of course, no one

argues that erotic dancing at the Island Bar

represents high artistic expression, but "[n]ude

barroom dancing, though lacking in artistic

value, and expressing ideas and emotions

different from those of more mainstream dances,

communicates them, to some degree, nonetheless."

Miller, 904 F.2d at 1087. The Supreme Court has

agreed, explaining that "nude dancing of the type

at issue here is expressive conduct, although .

. . it falls only within the outer ambit of the

First Amendment’s protection." Erie, 120 S.Ct. at

1391 (addressing nude barroom dancing); see also

Barnes, 501 U.S. at 566 ("[N]ude dancing of the

kind sought to be performed here is expressive

conduct within the outer perimeters of the First

Amendment, though we view it as only marginally

so."). Moreover, "[s]exual expression which is

indecent but not obscene is protected by the

First Amendment." Sable Communications of

California, Inc. v. FCC, 492 U.S. 115, 126

(1989). Entertainment may not be prohibited

"solely because it displays the nude human

figure. ’[N]udity alone’ does not place otherwise

protected material outside the mantle of the

First Amendment." Schad v. Borough of Mount

Ephraim, 452 U.S. 61, 66 (1981) (citations

omitted). 

 While the parties agree that nude dancing

receives First Amendment protection, this case

presents three disputed issues on appeal. The

first question is whether the operating

restrictions in Sections X and VIII(A) are

unconstitutional content-based regulations of

expression or legitimate time, place or manner

restrictions. The second question is whether

Section VIII(A) is overbroad. The third question

is whether the licensing provisions in Sections

XI and XIII are unconstitutional prior restraints

on expression. We review de novo the district

court grant of summary judgment. See Matney v.

County of Kenosha, 86 F.3d 692, 695 (7th Cir.

1996). 

A. Operating Regulations

for Sexually Oriented Businesses

 The plaintiffs challenge the Section X hours-ofoperation restriction and the Section VIII(A) ban

on live nudity and sexually explicit gestures as

content-based regulations of protected

expression. They argue that these provisions of

the Ordinance are content-based on their face

because they explicitly target adult

entertainment. The Ordinance applies only to
sexually oriented businesses, which are defined

by the Ordinance with reference to the expressive

activity performed inside. In response,

Cumberland admits that the Ordinance applies only

to adult-entertainment establishments.

Nonetheless, Cumberland insists that the

Ordinance is a content-neutral regulation of

nudity viable under the secondary-effects theory

of Barnes v. Glen Theatre, Inc., 501 U.S. 560,

and City of Erie v. Pap’s A.M., 120 S.Ct. 1382. 

 The Supreme Court has long held that

regulations designed to restrain speech on the

basis of its content are subject to strict

scrutiny and are presumptively invalid under the

First Amendment. See R.A.V. v. City of St. Paul,

505 U.S. 377, 382 (1992); City of Renton v.

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

Stromberg v. California, 283 U.S. 359, 368-69

(1931). Content-based regulations "by their terms

distinguish favored speech from disfavored speech

on the basis of the ideas or views expressed."

Turner Broadcasting Sys., Inc. v. FCC, 512 U.S.

622, 643 (1994). Since "it is the content of the

speech that determines whether it is within or

without the [regulation]," they single out

certain viewpoints or subject matter for

differential treatment. Carey v. Brown, 447 U.S.

455, 462 (1980); see also City of Cincinnati v.

Discovery Network, Inc., 507 U.S. 410, 429

(1993). These regulations draw strict scrutiny

because their purpose is typically related to the

suppression of free expression and thus contrary

to the First Amendment imperative against

government discrimination based on viewpoint or

subject matter. See Texas v. Johnson, 491 U.S.

397, 403 (1989). Owing to the profound national

commitment to robust, open debate, "[t]he First

Amendment generally prevents government from

proscribing speech, or even expressive conduct,

because of disapproval of the ideas expressed."

R.A.V., 505 U.S. at 382 (internal citations

omitted). The government cannot favor one

viewpoint over another, see City Council of Los

Angeles v. Taxpayers for Vincent, 466 U.S. 789,

804 (1984), nor can the government suppress an

entire category of speech, even if the regulation

is viewpoint-neutral within that category of

speech, because the First Amendment bars

"prohibition of public discussion of an entire

topic." See Consolidated Edison Co. v. Public

Serv. Comm’n, 447 U.S. 530, 537 (1980). 

 In contrast, content-neutral regulations are

justified without reference to the content of the

regulated speech and do not raise the specter of

government discrimination. See Virginia State Bd.

of Pharmacy v. Virginia Citizens Consumer

Council, Inc., 425 U.S. 748, 771 (1976). These

regulations do not refer to expressive content
and do not single out a particular viewpoint or

category of speech for different treatment.

Instead, all speech is treated similarly in an

effort to advance significant government

interests unrelated to content. A general ban on

speech in the vicinity of a school is contentneutral, see Grayned v. City of Rockford, 408

U.S. 104, 119-20 (1972), whereas an analogous ban

on speech containing an exemption for speech

relating to labor disputes is content-based. See

Police Dep’t of Chicago v. Mosley, 408 U.S. 92,

95 (1972). The former regulation requires no

consideration of content before applying the ban,

while the latter regulation requires

consideration whether the speech in question

refers to a labor dispute before it is possible

to determine if the regulation applies. When the

government treats all expression equally without

regard to the ideas or messages conveyed, courts

can be more certain that the government intends

to serve important interests unrelated to

suppression of speech and is not acting with

censorial purpose. In that vein, the government

may institute reasonable time, place or manner

regulations that apply to all speech alike, such

as restrictions on sound amplification at an

outdoor bandshell, see Ward v. Rock Against

Racism, 491 U.S. 781, 791 (1989), or a

prohibition on targeted residential picketing.

See Frisby v. Schultz, 487 U.S. 474, 488 (1988).

Such regulations control the surrounding

circumstances of speech without obstructing

discussion of a particular viewpoint or subject

matter. 

 However, the First Amendment tolerates greater

interference with expressive conduct, provided

that this interference results as an unintended

byproduct from content-neutral regulation of a

general class of conduct. In most cases, the

government may regulate conduct without regard to

the First Amendment because most conduct carries

no expressive meaning of First Amendment

significance. See Graff v. City of Chicago, 9

F.3d 1309, 1315-16 (7th Cir. 1993). However,

broad regulations of conduct implicate First

Amendment concerns when they apply to specific

instances of expressive conduct. For example, in

United States v. O’Brien, 391 U.S. 367, 382

(1968), the Court considered whether a ban on

destroying draft cards violated the First

Amendment, given that draft-card burning

represented a powerful symbol of political

protest at the time. The government argued that

the ban was necessary for the administration of

the Selective Service program, and as the Court

explained, the statute "plainly does not abridge

free speech on its face . . . . [It] on its face

deals with conduct having no connection with

speech." Id. at 375. The effect on expression was
merely incidental to the content-neutral ban on

the general class of conduct because the ban

applied to draft-card destruction of all forms,

not only to draft-card burning intended as

expression. Although it recognized the symbolic

conduct of draft-card burning as First Amendment

expression, the Court applied intermediate

scrutiny because the restraint on expression was

only an "incidental burden" generated by the

government’s content-neutral attempt at

furthering significant governmental interests

unrelated to the suppression of speech. See

O’Brien, 391 U.S. at 382; see also Erie, 120

S.Ct. at 1391; Clark v. Community for Creative

Non-Violence, 468 U.S. 288, 293 (1984). As a

result, the government "generally has a freer

hand" with respect to expressive conduct than

with respect to verbal expression. Johnson, 491

U.S. at 406. When the government enacts a

content-neutral regulation on a class of conduct,

citing the harmful secondary effects related to

that conduct, i.e., the subsidiary effects or

"noncommunicative impact" of the speech, courts

presume that the government did not intend to

censor speech, even if the regulation

incidentally burdens particular instances of

expressive conduct. See Erie, 120 S.Ct. at 1392. 

 As such, a general prohibition on all public

nudity receives intermediate scrutiny, rather

than strict scrutiny, when the government offers

as its legislative justification the suppression

of public nudity’s negative secondary effects.

See id. In Barnes, the Court upheld as contentneutral an Indiana public-indecency statute

prohibiting nudity in public places because the

statute was directed at preventing prostitution,

sexual assaults and other criminal activity

associated with adult entertainment--government

interests "not at all inherently related to

expression." Barnes, 501 U.S. at 585 (Souter, J.,

concurring)./2 In Erie, the Court sustained an

ordinance nearly identical to the Barnes statute

banning all public nudity because the

government’s predominant purpose again was to

combat the harmful secondary effects of public

nudity. See Erie, 120 S.Ct. at 1392. In both

cases, plaintiffs challenged these facially

content-neutral proscriptions on conduct because

the broad prohibitions incidentally illegalized

some expression as well, namely nude dancing. The

Court upheld both regulations because each was

nondiscriminatory on its face with respect to

content and each cited as its legislative

justification the abatement of public nudity’s

noxious secondary effects. See id. at 1391-93;

Barnes, 501 U.S. at 585 (Souter, J., concurring).

As the Court explained, "there is nothing

objectionable about a city passing a general

ordinance to ban public nudity (even though such
a ban may place incidental burdens on some

protected speech)." Erie, 120 S.Ct. at 1394. In

neither case did the regulation outlaw nude

dancing specifically or refer to expressive

content; the restriction on nude dancing resulted

incidentally from the general, content-neutral

prohibition on all public nudity. 

 Cumberland argues that the Ordinance is

constitutional under Barnes and Erie because the

Ordinance is justified without reference to

communicative content and supported by a

legislative record of pernicious secondary

effects. The nominal purpose of the Cumberland

Ordinance was addressing secondary effects

allegedly affiliated with nude dancing, including

"prostitution and sexual liaisons of a casual

nature," "sexually transmitted diseases" and

"urban blight and downgrading the qualify of life

in the adjacent area." Cumberland mustered

extensive efforts to construct a legislative

record substantiating their concerns, and the

Ordinance offers the city council’s research as

legislative findings and articulates the

abatement of secondary effects as its purpose.

Moreover, as the Court commended in Erie,

Cumberland referenced the evidentiary foundation

set forth in previous Supreme Court decisions

regarding the baneful secondary effects of adult

entertainment. Erie, 120 S.Ct. at 1395; cf.

Renton, 475 U.S. at 50-52. But see Erie, 120

S.Ct. at 1403-05 (Souter, J., dissenting in part)

(arguing that the government must demonstrate a

particularized factual basis for finding evidence

from previous cases to be relevant). Cumberland

argues that its significant government interest

in stemming harmful secondary effects justifies

all the Ordinance regulations of adult

entertainment, including the ban on nudity and

certain sexually explicit movements. 

 However, in patent contrast to the regulations

in Barnes and Erie, the Ordinance is not a

content-neutral prohibition on a general class of

conduct. Like the Barnes and Erie regulation, the

Cumberland Ordinance bans nudity. But unlike the

Barnes and Erie regulation, the Ordinance bans it

with reference to certain expressive content. We

can see this by examining the Ordinance

definitions for various types of sexually

oriented businesses to which the Ordinance

arrogates within its Section VIII(A) ban on live

nudity and sexually explicit movements, Section

X operating restrictions and Section XI and XIII

licensing provisions. Specifically, the

plaintiffs challenge Section II(3) and II(7),

which define "adult cabaret" and "adult theater"

respectively and apply to the Island Bar. Both

these sections cover a commercial establishment

that "regularly features . . . live performances
which are characterized by the exposure of

’specified anatomical areas’ or ’specified sexual

activities.’" This definition is the predominant

one in the Ordinance for defining sexually

oriented businesses, appearing within the

definitions for adult arcade, adult motel, adult

motion picture theater, adult mini-motion picture

theater and adult bookstore, novelty store or

video store, in addition to those for adult

theater and adult cabaret./3 

 This definition on its face targets erotic

expression. According to Webster’s Third New

International Dictionary, the word "performance"

in this context means "a public presentation or

exhibition . . . <the play ran for 285

[performances]> <the orchestra gave a benefit

[performance]>" or "something resembling a

dramatic representation." Webster’s Third New

Int’l Dictionary 1678 (1986). This term

undeniably denotes communicative content and

applies explicitly to expression, not mere

conduct. The qualifier "characterized by the

exposure of ’specified anatomical areas’ or

’specified sexual activities’" then indicates the

type of content that expression must convey to

fall inside the Ordinance’s reach. "Characterize"

means "to describe the essential character or

quality of" or "to be a distinguishing

characteristic." Id. at 376. The Ordinance

therefore discriminates against establishments

that regularly feature certain expressive conduct

distinguished by sexual content. Cumberland

modeled its definition on the discriminatory

ordinances in Renton and Young v. American Mini

Theatres, 427 U.S. 50 (1976), which defined the

regulated adult material in those cases as

"distinguished or characterized by their emphasis

on matter depicting, describing or relating to

’Specified Sexual Activities’ or ’Specified

Anatomical Areas.’" Indeed, following the Supreme

Court’s lead, we already have held that a

substantially similar definition specifically

singled out adult entertainment for different

treatment. See Entertainment Concepts, Inc. v.

Maciejewski, 631 F.2d 497, 504 (7th Cir. 1980);

see also Richland Bookmart, Inc. v. Nichols, 137

F.3d 435, 438-39 (6th Cir. 1998); International

Eateries of America, Inc. v. Broward County, 941

F.2d 1157, 1160-61 (11th Cir. 1991). 

 As a result, we regard the Ordinance as

content-based. The Ordinance applies only to

certain establishments characterized by their

presentation of live performances with particular

erotic content, and it is the presentation of

expressive content that determines whether

particular establishments are within or without

the regulation. In City of Cincinnati v.

Discovery Network, Inc., 507 U.S. at 429, the
Court explained that a ban on newsracks

containing commercial handbills was content-based

because "whether any particular newsrack falls

within the ban is determined by the content of

the publication resting inside that newsrack.

Thus, by any commonsense understanding of the

term, the ban in this case is ’content based.’"

By the same token, the Cumberland Ordinance is

content-based on its face because whether an

establishment falls within the Ordinance’s sweep

is determined by the content of expression inside

it. Cf. Berg v. Health & Hosp. Corp., 865 F.2d

797, 802 (7th Cir. 1989) (finding an ordinance

content-neutral because "it makes no distinction

between types of films or entertainment."). As we

explained in DiMa Corp. v. Town of Hallie, 185

F.3d 823, 828 (7th Cir. 1999), an ordinance that

regulates only adult-entertainment businesses

"singles out adult-oriented establishments for

different treatment based on the content of the

materials they sell or display." See also

National Amusements, Inc. v. Town of Dedham, 43

F.3d 731, 738 (1st Cir. 1995) (stating that

facial discrimination is "a telltale harbinger of

content-based regulation"). The Ordinance

restrictions on nude dancing are not incidental

byproducts from the content-neutral regulation of

a larger, inclusive class of nonexpressive

conduct. Unlike the statute in O’Brien, for

example, which "plainly does not abridge free

speech on its face," 391 U.S. at 374, the

Ordinance by its plain terms specifically targets

erotic expression. 

 This quality sharply distinguishes the Ordinance

from the regulations examined in Erie, Barnes and

other cases elaborating the permissibility of

incidental burdens from the regulation of general

conduct. Those cases analyzed content-neutral

regulations of conduct and depended on the

consequent presumption of government

nondiscrimination. The government could lawfully

prohibit an entire class of conduct, so long as

it did not define the regulated conduct with

reference to expressive content. See Clark, 468

U.S. at 293; O’Brien, 391 U.S. at 382; see also

Arcara v. Cloud Books, Inc., 478 U.S. 697, 707

(1986) (distinguishing regulations of general

applicability from regulations that inevitably

single out those engaged in First Amendment

protected activities for the imposition of its

burden). Thus, for example, an ordinance

forbidding all camping and sleeping in downtown

Washington, D.C., withstood a constitutional

challenge because it was content-neutral on its

face, even though its application to certain

demonstrators who intended to stay overnight in

Lafayette Park effectively squelched their

protest. See Clark, 468 U.S. at 293.
 Similarly, the public-indecency regulation in

Barnes and Erie does not articulate its

prohibitions with any reference to expressive

content. It prohibits public nudity "across the

board" in a facially content-neutral manner,

Barnes, 501 U.S. at 566, and "does not target

nudity that contains an erotic message; rather,

it bans all public nudity, regardless of whether

that nudity is accompanied by expressive

activity." Erie, 120 S.Ct. at 1391. The

regulation applied to nude dancing only because

it was a form of public nudity, even though the

unintended effect of this application was the

restriction of adult entertainment. However,

neither Erie nor Barnes applied a secondaryeffects rationale to a discriminatory regulation

that expressly targets nude dancing or adult

entertainment for prohibition. See International

Eateries, 941 F.2d at 1161 (refusing to apply

Barnes to an ordinance that singles out nude

dancing for regulation); see also R.A.V., 505

U.S. at 394 (questioning whether "an ordinance

that completely proscribes, rather than merely

regulates, a specified category of speech can

ever be considered to be directed only to the

secondary effects of such speech."). As the

Supreme Court has explained, the mere assertion

of a content-neutral purpose does not "save a law

which, on its face, discriminates based on

content." Turner Broadcasting, 512 U.S. at 642-

43. A secondary-effects rationale by itself does

not bestow upon the government free license to

suppress specific content or a specific message

because such a regime would permit the government

to single out a message expressly, formulate a

regulation that prohibits it, then draw contentneutral treatment nonetheless simply by producing

a secondary-effects rationale as pretextual

justification. See Madsen v. Women’s Health Ctr.,

Inc., 512 U.S. 753, 794 (1994) (Scalia, J.,

dissenting in part) ("The vice of content-based

legislation--what renders it deserving of the

high standard of strict scrutiny--is not that it

is always used for invidious, thought-control

purposes, but that it lends itself to use for

those purposes."). As a result, we have never

applied Barnes or Erie to cases in which the

government regulation by its plain language

targets adult entertainment, even when justified

by secondary-effects theories. See DiMa, 185 F.3d

823; North Ave. Novelties, Inc. v. City of

Chicago, 88 F.3d 441 (7th Cir. 1996); Matney, 86

F.3d 692.

 Nevertheless, the fact that the Ordinance

definition is content-based on its face does not

necessarily dictate that the Ordinance is

analyzed as content-based and subjected to strict

scrutiny. See DiMa, 185 F.3d at 828; Richland

Bookmart, 137 F.3d at 439. Some time, place or
manner regulations are treated as contentneutral, even though they are content-based on

their faces. Courts at times have referred to

these regulations as content-neutral, since they

are treated as such in certain contexts. See,

e.g., 11126 Baltimore Blvd., Inc. v. Prince

George’s County, Md., 58 F.3d 988, 995 (4th Cir.

1995). But these courts often called them

content-neutral without explaining that the

regulations are in fact content-based and only

analyzed as content-neutral when certain

preconditions are met. See DiMa, 185 F.3d at 828

(explaining that the Supreme Court held this type

of content-based regulation is to be "treated

like content-neutral time, place, and manner

regulations, not that it was content-neutral.");

Richland Bookmart, 137 F.3d at 439. At least in

the domain of adult entertainment, discriminatory

time, place or manner restrictions can be upheld

as content-neutral restrictions on adult

entertainment if they (1) are justified without

reference to the content of the regulated speech;

(2) are narrowly tailored to serve a significant

government interest in curbing adverse secondary

effects; and (3) still leave open ample

alternative channels for communication. See

Renton, 475 U.S. at 47; Young, 427 U.S. at 61;

DiMa, 185 F.3d at 828. This standard strikes a

healthy balance between the citizenry’s First

Amendment interests and the government’s

legitimate interests unrelated to suppression of

speech. The government may further substantial

state interests by directing speech through

certain avenues rather than others, but only if

the government’s means preserve legitimate

opportunity for continued speech. Even when

actuated by a secondary-effects motive, the

government may not "deprive the public of its

ability to ’satisfy its appetite for sexually

explicit fare.’" Matney, 86 F.3d at 697-98

(quoting Berg, 865 F.2d at 803). 

 Content-discriminatory time, place or manner

regulations received intermediate scrutiny in

Renton and Young because the government did not

censor expression and instead advanced zoning

schemes supported by secondary-effects

rationales. Renton, 475 U.S. at 54; Young, 427

U.S. at 72-73. Although neither addressed nude

dancing, both ordinances targeted adult-film

entertainment on the basis of content. With

language similar to the Cumberland Ordinance,

those ordinances defined the regulated adult

material as that "distinguished or characterized

by their emphasis on matter depicting, describing

or relating to ’Specified Sexual Activities’ or

’Specified Anatomical Areas.’" Discriminatory on

their faces, the ordinances did not ban adult

entertainment; instead, the ordinances imposed on

adult bookstores and theaters geographic-zoning
restrictions that fell comfortably within the

rubric of a time, place or manner regulation.

Inside the appropriate zones, sexually oriented

establishments were permitted to purvey adult

entertainment "essentially unrestrained." Young,

427 U.S. at 62; see also North Ave. Novelties, 88

F.3d at 444. The Renton ordinance isolated adult

entertainment in concentrated regions to protect

residential and commercial centers, and the Young

ordinance dispersed adult establishments to

diffuse their secondary effects. Neither

ordinance stifled or significantly burdened the

availability of adult entertainment. The Court

noted in Young, "The situation would be quite

different if the ordinance had the effect of

suppressing, or greatly restricting access to,

lawful speech. Here, however, . . . ’[the] burden

on First Amendment rights is slight.’" Young, 427

U.S. at 71 n.35 (citation omitted). 

 Applying Renton and Young to a Chicago zoning

ordinance that limited the location of "adult

uses," we explained that a content-discriminatory

regulation of time, place or manner is

constitutional only if it preserves "’reasonable

opportunity’ to disseminate the speech at issue."

North Avenue Novelties, 88 F.3d at 445. The key

inquiry focuses upon "the ability of producers as

a group to provide sexually explicit expression,

as well as on the ability of the public as a

whole to receive it." Id. at 444. We upheld the

Chicago ordinance because it "does not prohibit

sexually explicit expression, but merely requires

that such expression take place only in specified

areas, and only in a non-concentrated manner."

Id.; see also Matney, 86 F.3d at 698 (upholding

an open-booth requirement for adult-entertainment

viewing booths because it in no sense purported

to ban or even limit adult entertainment); Berg,

865 F.2d at 802 (same). Thus, only the provisions

of the Ordinance that regulate the time, place or

manner of adult entertainment without removing

alternative channels of communication are

reasonable under the First Amendment. 

 Under this standard, we uphold the Section X

limitations on the hours of operation for

sexually oriented businesses. Section X is a

classic time, place or manner restriction,

limiting the business hours for sexually oriented

businesses to between 10 a.m. and midnight,

Monday through Saturday. In DiMa, we found an

ordinance that restricted the operating hours of

adult-oriented establishments to be contentbased, but analyzed and upheld it under contentneutral analysis consistent with Renton and

Young. DiMa, 185 F.3d at 831; see also Lady J.

Lingerie, Inc. v. City of Jacksonville, 176 F.3d

1358, 1365 (11th Cir. 1999); Richland Bookmart,

137 F.3d at 439-41; Mitchell v. Commission on
Adult Entertainment Establishments, 10 F.3d 123

(3d Cir. 1993). Combating harmful secondary

effects of adult entertainment is a significant

government interest unrelated to speech content,

and Cumberland satisfactorily established a

secondary-effects justification for its time,

place or manner regulation. See DiMa, 185 F.3d at

830. Whereas the municipality in DiMa did nothing

more than cite the experiences of another

Wisconsin town, Cumberland collected and reviewed

a host of studies on secondary effects and the

need for constrained operating hours.

Cumberland’s legislative research indicated that

the hours-of-operation constraint enabled local

law enforcement to concentrate its limited

resources for those business hours. Although

Section X provides fewer hours of operation than

the ordinance in DiMa, we find that the

restriction is not "substantially broader than

necessary," even if more restrictive than

absolutely necessary or justified. Ward, 491 U.S.

at 800. 

 Section VIII(A) presents a more difficult

question. Section VIII(A) proscribes "appear[ing]

in a state of nudity or depict[ing] specified

sexual activities" in a sexually oriented

business. Cumberland bases Section VIII(A) on the

significant government interest in fighting

injurious secondary effects and justifies it by

citing the history of crime at the Island Bar and

research on secondary effects from studies and

other cases. Section VIII(A) is cleverly styled

as a mere time, place or manner restriction

because it forbids certain expressive activity

only within sexually oriented businesses but not

elsewhere. Yet the operation of Section VIII(A)

is clear. In practice, it effectively bans

commercial nude dancing. Section II of the

Ordinance defines a sexually oriented business as

one that regularly features live performances

characterized by the exposure of specified

anatomical areas or specified sexual activities.

But such performances by Ordinance definition

always contain nudity (by virtue of exposed

specified anatomical areas) or depictions of

specified sexual activities, both of which

Section VIII(A) bans within those sexually

oriented establishments. Thus, Section II defines

sexually oriented businesses with reference to

the presentation of live adult entertainment,

then Section VIII(A) stifles that presentation by

forbidding nudity and sexual depictions within

those sexually oriented businesses. To wit, the

Island Bar is a sexually oriented business

because it presents nudity, and as a result, the

Ordinance bans nudity within the Island Bar, the

sole supplier of nude dancing in Cumberland.

Paradoxically, only by refraining from protected

speech can a venue, its operator and its
performers avoid the Section VIII(A)

restrictions. For this reason, Section VIII(A) is

not a mere time, place or manner restriction. 

 Nonetheless, the Supreme Court held in Erie and

Barnes that limiting erotic dancing to seminudity represents a de minimis restriction that

does not unconstitutionally abridge expression.

Erie, 120 S.Ct. at 1397; Barnes, 501 U.S. at 571.

As the Court explained in Barnes, "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." Barnes, 501 U.S.

at 571. Similarly in Erie, the Court reiterated

that "[t]he 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." Erie, 120

S.Ct. at 1397. Insofar as it prohibits full

nudity and requires dancers to wear pasties and

G-strings while performing, Section VIII(A) does

not offend the First Amendment. Cf. Dodger’s Bar

& Grill, Inc. v. Johnson County Bd. of County

Comm’rs, 52 F.3d 1436, 1443 (10th Cir. 1994)

(upholding similar nudity restrictions under the

Twenty-First Amendment). The Ordinance, however,

goes several steps further. Section VIII(A)

outlaws the performance of a strikingly wide

array of sexually explicit dance movements, or

what the Ordinance misdenominates as "specified

sexual activities," including "the fondling or

erotic touching of human genitals, pubic region,

buttocks, anus, or female breasts." 

 By restricting the particular movements and

gestures of the erotic dancer, in addition to

prohibiting full nudity, Section VIII(A) of the

Ordinance unconstitutionally burdens protected

expression. The dominant theme of nude dance is

"an emotional one; it is one of eroticism and

sensuality." Miller, 904 F.2d at 1086-87. Section

VIII(A) deprives the performer of a repertoire of

expressive elements with which to craft an

erotic, sensual performance and thereby

interferes substantially with the dancer’s

ability to communicate her erotic message. It

interdicts the two key tools of expression in

this context that imbue erotic dance with its

sexual and erotic character--sexually explicit

dance movements and nudity. Unlike a simple

prohibition on full nudity, Section VIII(A) does

much more than inhibit "that portion of the

expression that occurs when the last stitch is

dropped." Erie, 120 S.Ct. at 1393. Section

VIII(A) constrains the precise movements that the

dancer can express while performing. The dancer

may use non-sexually explicit elements and seminudity to convey a certain degree of sensuality,
but putting taste aside, more explicit and erotic

content is commonly available on primetime

television without being fairly regarded as adult

entertainment. The Court has declared that the

government cannot "ban all adult theaters--much

less all live entertainment or all nude dancing."

Schad, 452 U.S. at 71. We ourselves explained in

DiMa, "Because this speech is not obscene,

government may not simply proscribe it." DiMa,

185 F.3d at 827. Cumberland cannot avoid this

dictate by regulating nude dancing with such

stringent restrictions that the dance no longer

conveys eroticism nor resembles adult

entertainment. The portion of Section VIII(A)

that bars the "depiction of specified sexual

activities" is unconstitutional because it

prevents erotic dancers from practicing their

protected form of expression. 

 None of the Supreme Court’s precedent permits a

government regulation expressly directed at adult

entertainment and imposing such a restriction on

non-obscene adult entertainment. Analyzed under

strict scrutiny, as befits a content-based

regulation, this portion of Section VIII(A)

violates the First Amendment. To survive strict

scrutiny, the provision must be necessary to

serve a compelling state interest and be narrowly

drawn to achieve that end. See Simon & Schuster,

Inc. v. Members of the N.Y. State Crime Victims

Bd., 502 U.S. 105, 118 (1991). This provision

fails because it is not necessary to serve

Cumberland’s significant interest in arresting

secondary effects. Cumberland can employ a

variety of less speech-restrictive and more

direct means to fight prostitution, illicit sex,

sexually transmitted disease and urban blight.

See Leverett v. City of Pinellas Park, 775 F.2d

1536, 1540 (11th Cir. 1985). We uphold the

portion of Section VIII(A) that bans full nudity

within sexually oriented businesses but strike

the portion of Section VIII(A) that bans the

performance of specified sexually explicit

movements within sexually oriented businesses.

B. Section VIII(A) and Overbreadth

 Having found part of Section VIII(A) to be a

constitutional time, place or manner restriction,

we now reach the plaintiffs’ claim that Section

VIII(A) is overbroad. The overbreadth doctrine

prevents the government from casting a net so

wide that its regulation impermissibly burdens

speech. To avoid chilling the speech of third

parties who may be unwilling or unlikely to raise

a challenge in their own stead, the overbreadth

doctrine in certain circumstances permits

litigants already before the court to challenge

a regulation on its face and raise the rights of

third parties whose protected expression is
prohibited or substantially burdened by the

regulation. See Broadrick v. Oklahoma, 413 U.S.

601, 613 (1973). A facial overbreadth challenge

is successful when it establishes "a realistic

danger that the statute itself will significantly

compromise recognized First Amendment protections

of parties not before the Court." City Council of

Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 801 (1984). The Supreme Court has cautioned

that overbreadth is "manifestly, strong

medicine," Broadrick, 413 U.S. at 613, and has

invalidated regulations only when a limiting

construction is not readily available and the

unconstitutional applications of the regulation

are real and substantial in relation to the

regulation’s plainly legitimate sweep. See, e.g.,

Forsyth County v. Nationalist Movement, 505 U.S.

123 (1992); Board of Airport Comm’rs of Los

Angeles v. Jews for Jesus, Inc., 482 U.S. 569

(1987); Brockett v. Spokane Arcades, 472 U.S. 491

(1985); Village of Schaumburg v. Citizens for a

Better Environment, 444 U.S. 620 (1980). 

 Cumberland claims that Barnes and Erie shield

the Ordinance from an overbreadth challenge, but

the Supreme Court did not reach the issue of

overbreadth in either case. In Barnes, a state

court decision provided a limiting construction

that saved the public-nudity statute from

overbreadth. Barnes, 501 U.S. at 565 n.1.

However, speaking for the Court, Justice Souter

questioned skeptically whether the secondaryeffects rationale from that case would protect

against an overbreadth challenge if the statute

"bar[red] expressive nudity in classes of

productions that could not readily be analogized

to the adult films at issue in Renton." Barnes,

501 U.S. at 585 n.2 (Souter, J., concurring). He

doubted that the statute could be applied to "a

production of ’Hair’ or ’Equus’ . . . in the

absence of evidence that expressive nudity

outside the context of Renton-type adult

entertainment was correlated with such secondary

effects." Id. In Erie, the Court again did not

reach the overbreadth question presented by the

parties. The Court simply reversed the

Pennsylvania Supreme Court on other grounds and

remanded without addressing overbreadth. See

Erie, 120 S.Ct. at 1398, see also Erie, 120 S.Ct.

at 1406 n.5 (Souter, J., dissenting in part)

(noting that the lower court on remand could

dispose of the case on overbreadth grounds, which

the Court did not address). Thus, Barnes and Erie

are unhelpful with respect to overbreadth. 

 We already have found that the Section VIII(A)

ban on full nudity is a permissible restriction

of erotic dancing at the Island Bar, but the

plaintiffs argue on behalf of third parties who

wish to engage in protected speech yet are
deterred by what the plaintiffs regard as the

Ordinance’s real and substantial threat of

overbreadth. In this context, the overbreadth

doctrine guards against the suppression of

protected speech unconnected to the negative

secondary effects cited as legislative

justification. See Tunick v. Safir, 209 F.3d 67,

83 (2d Cir. 2000); Triplett Grille, Inc. v. City

of Akron, 40 F.3d 129, 135 (6th Cir. 1994). When

the government restricts speech not associated

with harmful secondary effects, then the

government cannot be fairly said to be regulating

with those secondary effects in mind and the

regulation extends beyond its legitimate reach.

Cumberland has made no finding of harmful

secondary effects resulting from venues outside

of adult entertainment, so the overbreadth

doctrine would invalidate Section VIII(A) if it

stifles substantial expressive conduct

unassociated with the pernicious secondary

effects advanced as the Ordinance’s purpose. The

plaintiffs argue that Section VIII(A)

unconstitutionally forbids the regular showing of

live performances featuring live nudity or

depiction of sexual activity, but which sit

outside the domain of adult entertainment and are

uncorrelated with harmful secondary effects.

Specifically, the plaintiffs explain that the

definitions for adult theater and adult cabaret

would cover venues that present theatrical and

artistic performances which feature nudity or

sexual content, but also contain serious

artistic, social or political value. 

 The plain language of the Ordinance determines

whether Section VIII(A) is overbroad. The Section

II definitions for adult theater and adult

cabaret cover a commercial establishment that

"regularly features . . . persons who appear in

a state of nudity or semi-nude." This definition

lends itself to expansive interpretation.

"Regularly" means "in a regular, orderly, lawful,

or methodical way," and "regular" means

"returning, recurring or received at stated,

fixed or uniform intervals <in the [regular]

course of events>." Webster’s, at 1913.

"Features" means "to give special prominence to

. . . <the theater was featuring a murder-mystery

film>." Id. at 832. The definition for adult

theater and adult cabaret might include within

the Ordinance’s province any venue that presents

at orderly intervals, as a matter of normal

course, performances that prominently include

nudity or semi-nudity. So construed, this

definition would include a theater or playhouse

that shows on a regular basis an interpretation

of Hair, a presentation characterized by much

nudity but which the Court has indicated

constitutes protected speech. See Barnes, 501

U.S. at 585 n.2 (Souter, J., concurring);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 558 (1975). The text does not limit its

regulation to adult entertainment because an

array of "regularly feature[d]" artistic and

theatrical expression includes live nudity or

semi-nudity without necessarily becoming content

readily analogous to the adult entertainment

regulated in Renton and Young. Unlike statutes

upheld against overbreadth challenges in other

cases, the Ordinance contains no explicit

exception for expression that contains nudity or

sexual depiction but also possesses serious

artistic, social or political value. See, e.g.,

Tunick, 209 F.3d at 71 (exception for

"performances or exhibitions that [take] place

indoors before audiences"); J&B Entertainment,

Inc. v. City of Jackson, 152 F.3d 362, 365 (5th

Cir. 1998) (exception for persons "engaged in

expressing a matter of serious literary,

artistic, scientific or political value"); Farkas

v. Miller, 151 F.3d 900, 905 (8th Cir. 1998)

(exception for venues "primarily devoted to the

arts or theatrical performances"). Nor has the

Ordinance been narrowed by state courts, as was

the statute in Barnes, to exclude protected

expression. 

 Nonetheless, a facial overbreadth challenge

fails when the regulation’s plain language is

readily susceptible to a narrowing construction

that would make it constitutional. See American

Booksellers, 484 U.S. at 397. "Regularly

features" lends itself to the definition

described above--giving special prominence at

uniform, orderly intervals as a matter of normal

course. However, the Ordinance does not specify

how long a venue must regularly feature such

content before it qualifies as a sexually

oriented business. For example, a local theater

might offer nightly showings of Hair for only a

month, and it is unclear whether this regularity

suffices to qualify the theater as an adult

theater or cabaret. The local theater probably

would not resemble an adult-entertainment

establishment in the sense contemplated by Renton

and Young, provided that it also regularly

showcased other plays and performances, not all

of which contain nudity, semi-nudity or sexual

content. In this context, a narrowing

construction that comports with the Ordinance’s

express intent is readily available: giving

special prominence at uniform, orderly intervals

on a permanent basis. "Regularly features" can be

interpreted to mean "always features." Under this

interpretation, a venue falls within the

definitions for adult theater and adult cabaret

only if it features nudity, semi-nudity or

specified sexual content as the permanent focus

of its business and gives special prominence to

such content on a permanent basis./4 This
construction limits the Ordinance to adultentertainment establishments, which always

feature nudity, semi-nudity and specified sexual

content, and excludes theatrical venues that

present shows like Hair or Equus for long

stretches but not on a permanent basis. It is

conceivable, though unlikely, that a theater

might make the presentation of artistic

performances featuring nudity its abiding focus.

But even so, the Ordinance’s unconstitutional

applications would not be real and substantial in

relation to its plainly legitimate sweep. See

Brockett, 472 U.S. at 503. At worst, the

Ordinance might require theatrical dancers to don

pasties and G-strings while performing, and those

performers can bring as-applied challenges to the

Ordinance at that time, assuming Cumberland

enforces it against them. In a facial challenge

like this one, there must be a realistic danger

that the Ordinance will significantly compromise

the First Amendment rights of parties not before

the Court. See Taxpayers for Vincent, 466 U.S. at

801. The plaintiffs suggest scenarios to which

the Ordinance might apply on its face and would

unconstitutionally restrict protected expression,

but the Ordinance is readily susceptible to a

narrowing construction that saves the potentially

unconstitutional applications from dwarfing the

Ordinance’s legitimate reach. We reject the

plaintiffs’ overbreadth claims and reverse the

district court’s grant of summary judgment in the

plaintiffs’ favor on those claims.

C. Licensing Provisions

 The plaintiffs argue that Sections XI and XIII

impose prior restraints on expression, in the

form of licensing, disclosure and qualification

requirements, that are not narrowly tailored to

Cumberland’s significant government interests in

stemming detrimental secondary effects. The

plaintiffs do not challenge the procedural

adequacy of the licensing schemes contained in

Sections XI and XIII of the Ordinance. See, e.g.,

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 228

(1990) (requiring constrained discretion by the

licensor, a limited time frame within which the

licensor must decide and opportunity for prompt

judicial review). 

 Any system of prior restraint comes "bearing a

heavy presumption against its constitutional

validity." Southeastern Promotions, 420 U.S. at

558 (quoting Bantam Books, Inc. v. Sullivan, 372

U.S. 58, 70 (1963)). The proponent of a prior

restraint "’carries a heavy burden of showing

justification for the imposition of such a restraint.’"

New York Times Co. v. United States, 403 U.S.

713, 714 (1971) (quoting Organization for a

Better Austin v. Keefe, 402 U.S. 415, 419
(1971)). However, prior restraints are not per se

unconstitutional because "the state may sometimes

curtail speech when necessary to advance a

significant and legitimate state interest."

Taxpayers for Vincent, 466 U.S. at 804. Indeed,

we already have decided that a licensing

requirement for adult-entertainment

establishments is not unconstitutional per se as

a prior restraint, if it otherwise conforms to

the constitutional requirements of Young. See

Genusa v. City of Peoria, 619 F.2d 1203, 1213

(7th Cir. 1980). 

 Licensing, though functioning as a prior

restraint, is constitutionally legitimate when it

complies with the standard for time, place or

manner requirements. See, e.g., Cox v. New

Hampshire, 312 U.S. 569, 575-76 (1941). Time,

place or manner restrictions that regulate the

conditions under which expression may take place

are permissible so long as the regulation is

narrowly tailored to serve a significant

government interest unrelated to the suppression

of free expression and leaves alternative

channels for communication. See DiMa, 185 F.3d at

828. In Genusa v. City of Peoria, we held that a

city government could require municipal licensing

for adult bookstores based on a secondary-effects

rationale from Young. Genusa, 619 F.2d at 1215.

We upheld required disclosure of certain

information, such as the license applicant’s

name, address and proposed place of business,

because this information was "legitimately

related to the state interest that underlies the

zoning provisions." Id. at 1216; see also TK’s

Video, Inc. v. Denton County, 24 F.3d 705, 710

(5th Cir. 1994) (requiring a "relevant

correlation" or "substantial relation" between

the information required and the government

interest). We also upheld the requirement that

licensees openly display their adult-use license

because this was rationally related to policing

for licensing compliance and had "no discernible

impact on protected freedoms." Genusa, 619 F.2d

at 1221. 

 Similarly here, we uphold the Ordinance

inspection requirements and certain portions of

Section XI requiring applicant disclosures.

Section V of the Ordinance imposes interiorconfiguration requirements, which the plaintiffs

appear not to challenge and analogs of which we

have approved before as reasonable time, place or

manner regulations. See Matney, 86 F.3d 698;

Berg, 865 F.2d at 803. Section XIII(C)(6) forbids

licensing when the premises of the business have

not been approved as in compliance with

applicable laws and ordinances, including those

configuration requirements. This provision

enables the city to enforce compliance with the
special health and safety requirements for

sexually oriented businesses. To the degree that

the Ordinance requires compliance with other

extant health and safety laws applicable to all

Cumberland businesses, Section XIII(C)(6) is

redundant and constitutionally inoffensive. Cf.

Arcara, 478 U.S. at 707 (permitting closure of an

adult bookstore for violating health laws

applicable to all businesses). In contrast to the

City of Peoria in Genusa, Cumberland collected an

adequate body of research to justify its

interior-configuration requirements and

substantiate a connection between these

regulatory requirements and the city’s legitimate

interest in arresting secondary effects. 

 We also uphold the Section XI required

disclosures of the following: the applicant’s

name; proof of the applicant’s age; the type of

license for which the applicant is applying; the

proposed location, address and descriptions of

the business premises; identifying personal data.

All this information allows Cumberland to

regulate the time, place or manner of adult

entertainment without censoring expression. This

data enables Cumberland to administer licenses

and monitor compliance with its zoning

requirements, which the plaintiffs do not

challenge. Likewise, requiring proof of employee

age legitimately relates to the government’s

interest in preventing underage performers from

engaging in adult entertainment. In addition, we

uphold the Ordinance requirement of a revenueneutral license application fee to defray the

costs of administration. See Genusa, 619 F.2d at

1213./5 Yet we invalidate the required

production of a residential address, recent color

photograph, Social Security number, fingerprints,

tax-identification number and driver’s license

information. This information is redundant and

unnecessary for Cumberland’s stated purposes. Its

required disclosure serves "no purpose other than

harassment," Genusa, 619 F.2d at 1217, because it

is not narrowly tailored to the government’s

interests in the time, place or manner of adult

entertainment. 

 The First Amendment also does not allow

licensing provisions based on criminal history

that "totally prohibit certain classes of

persons" from First Amendment expression. Genusa,

619 F.2d at 1218. We struck provisions of the

Peoria licensing scheme in Genusa that

disqualified applicants who previously had a

liquor-license revocation, felony conviction or

a specified sex-related conviction. Id. at 1218.

These provisions were absolute prohibitions on

speech, and the city failed to demonstrate that

its goals "[could not] be effectuated by means

that impact less drastically on protected
freedoms." Id. at 1219. The disqualification

provisions were content-based prohibitions of

expression that do not fall within Barnes and

Erie and fail to provide alternative channels for

communication under Renton and Young. As we

explained in Genusa, "We know of no doctrine that

permits the state to deny to a person First

Amendment liberties other than the right to vote

solely because that person was once convicted of

a crime or other offense." Genusa, 619 F.2d at

1219 n.40. 

 Accordingly, the Ordinance disqualification

provisions in Section XIII for operator and

employee licensing are unconstitutional as well.

Sections XIII(A)(3) and (C)(5) disqualify any

applicant who has been convicted of a "specified

criminal activity," defined as any of the vice

offenses listed in Section II(23)./6 Sections

XIII(A)(5) and (C)(4) disqualify any applicant

who recently had been denied or revoked a license

by the city. Section XIII(C)(2) disqualifies any

applicant who is overdue in payment of city

taxes, fees, fines, or penalties in relation to

any business. Like the disqualification

provisions struck as unconstitutional in Genusa,

these license ineligibility provisions absolutely

disentitle classes of speakers from a category of

expression. They produce a complete ban on

certain expression for a disqualified group of

applicants who, by definition, wish to speak, and

such a drastic measure cannot be justified here

as narrowly tailored to resist noisome secondary

effects. Indeed, Cumberland neither conducted nor

cited any study establishing its basic premise

that ownership or performance by those convicted

of specified criminal activity or misconduct is

more likely to lead to secondary effects than

ownership or performance by anyone else. 

 The government may regulate the conditions under

which operators and performers may stage adult

entertainment, and in accordance, it may withhold

or revoke a license pending compliance with

legitimate time, place or manner requirements.

Yet the government may not categorically

disenfranchise a class from protected expression

in this licensing context, at least on the

factual record Cumberland has compiled, because

it thereby fails to provide the alternative

channels for communication required by Renton and

Young for those speakers. Consequently, the

Section XI(E)(3)-(5) required disclosures of the

applicant’s criminal and past licensing histories

are unnecessary because, absent any

disqualification ground on those bases, such

disclosures are unjustified by a government

interest here. 

 
D. Severability

 The severability clause in Section XXII of the

Ordinance provides that "[i]n the event that any

section, subsection, clause, phrase or portion of

this ordinance is for any reason held illegal,

invalid or unconstitutional . . . such holding

shall not affect the validity of the remainder of

this ordinance." However, the severability clause

can save the constitutionally viable remainder

only if the invalidated elements were not "an

integral part of the statutory enactment viewed

in its entirety." Zbaraz v. Hartigan, 763 F.2d

1532, 1545 (7th Cir. 1985) (internal quotation

and citation omitted). We have found

unconstitutional as they apply to adult theaters

and adult cabarets, the Section VIII(A) ban on

certain sexually explicit movements, several

Section XI disclosure requirements and all the

Section XIII licensing disqualification

provisions. This leaves several discrete sections

that stand on their own: the Section VIII(A) ban

on nudity within sexually oriented businesses,

the Section X hours-of-operation provision and a

licensing system that requires disclosure of

applicant age and business data relating to the

time, place or manner of the sexually oriented

business’s operation. In deference to the

Ordinance’s robust severability clause, we think

that the unconstitutional provisions of the

Ordinance may be severed workably from the rest.

We therefore permanently enjoin only the stricken

sections and permit the operation of those

sections either upheld or unchallenged.

III. Conclusion

 For the foregoing reasons, the following

provisions of the Ordinance violate the First

Amendment: the Section VIII(A) ban on sexually

explicit movements within sexually oriented

businesses; Section XI(C) (fingerprinting

requirement); Section XI(E)(3)-(5), (8)-(10),

Section XI(F)(3)-(4), (6)-(7), and Section XI(G)

(certain disclosure requirements); Section

XIII(A)(3), (5) and Section XIII(C)(2), (4)-(5)

(certain disqualification provisions); and

Section XIII(B) (ineligibility for license

renewal on the basis of specified criminal

activity). The following provisions of the

Ordinance are constitutional and severed from the

invalidated provisions: the Section VIII(A)

prohibition on nudity within sexually oriented

businesses; and the remaining licensing

provisions in Sections XI and XIII. We offer no

opinion regarding other provisions of the

Ordinance that the plaintiffs did not challenge.

We Affirm in part and Reverse in part the judgment

of the district court.
/1 Section XIII provides in pertinent part: 

(A) Upon the filing of said application for a

sexually oriented business employee license, the

city shall issue a temporary license to said

applicant. The application shall then be referred

to the appropriate city departments for an

investigation to be made on such information as

is contained on the application. The application

process shall be completed within thirty (30)

days from the date the completed application is

filed. After the investigation, the City shall

issue a license, unless it is determined by a

preponderance of the evidence that one or more of

the following findings is true:

(1) The applicant has failed to provide

information reasonably necessary for issuance of

the license or has falsely answered a question or

request for information on the application form;

(2) The applicant is under the age of eighteen

(18) years;

(3) The applicant has been convicted of a

"specified criminal activity" as defined in this

ordinance; 

(4) The sexually oriented business employee

license is to be used for employment in a

business prohibited by local or state law,

statute, rule or regulation, or prohibited by a

particular provision of this ordinance; or

(5) The applicant has had a sexually oriented

business employee license revoked by the City

within two (2) years of the date of the current

application. If the sexually oriented business

employee license is denied, the temporary license

previously issued is immediately deemed null and

void. . . .

(B) A license granted pursuant to this section

shall be subject to annual renewal upon the

written application of the applicant and a

finding by the City that the applicant has not

been convicted of any specified criminal activity

as defined in the ordinance or committed any act

during the existence of the previous license

which would be grounds to deny the initial

license application. The renewal of the license

shall be subject to the payment of the fee as set

forth in Section XIV.

(C) Within 30 days after receipt of a completed

sexually oriented business application, the City

shall approve or deny the issuance of a license

to an applicant. The City shall approve the

issuance of a license to an applicant unless it

is determined by a preponderance of the evidence
that one or more of the following findings is

true:

(1) An applicant is under eighteen (18) years of

age.

(2) An applicant or a person with whom applicant

is residing is overdue in payment to the City of

taxes, fees, fines, or penalties assessed against

or imposed upon him/her in relation to any

business.

(3) An applicant has failed to provide

information reasonably necessary for issuance of

the license or has falsely answered a question or

request for information on the application form.

(4) An applicant or a person with whom the

applicant is residing has been denied a license

by the City to operate a sexually oriented

business within the preceding twelve (12) months

or whose license to operate a sexually oriented

business has been revoked within the preceding

twelve (12) months.

(5) An applicant or a person with whom the

applicant is residing has been convicted of a

specified criminal activity defined in this

ordinance.

(6) The premises to be used for the sexually

oriented business have not been approved by the

health department, fire department, and the

building officials as being in compliance with

applicable laws and ordinances.

(7) The license fee required by this ordinance

has not been paid.

(8) An applicant of the proposed establishment

is in violation of or is not in compliance with

any of the provisions of this ordinance. 

/2 A divided Court issued four separate opinions in

Barnes, but under Marks v. United States, 430

U.S. 188, 193 (1977), Justice Souter’s

concurrence is the controlling opinion on this

issue, as the most narrow opinion joining the

judgment of the Court. See DiMa Corp. v. Town of

Hallie, 185 F.3d 823, 830 (7th Cir. 1999); see

also Tunick v. Safir, 209 F.3d 67, 83 (2d Cir.

2000) (collecting cases in agreement from other

circuits). 

/3 The definition for "adult cabaret" has an

additional clause that again refers to content.

This prong of the definition apprehends within

its ambit a commercial establishment that

"regularly features films, motion pictures, video

cassettes, slides or other photographic
reproductions which are characterized by the

depiction or description of ’specified sexual

activities’ or ’specified anatomical areas.’" 

 The definitions of "nudity," "semi-nude,"

"specified anatomical areas" and "specified

sexual activities" are uncontroversial, and the

parties do not contend otherwise. 

/4 In practice, the Ordinance defines adult cabaret

and adult theater as establishments that

regularly feature semi-nudity or depictions of

specified sexual activities. Under the Ordinance,

it is legally impossible to feature nudity

regularly. Any establishment that regularly

features full nudity qualifies as a sexually

oriented business under the Ordinance. As a

sexually oriented business, the venue is then

prohibited by Section VIII(A) from presenting

nudity even once. At that point, the venue could

not be characterized as regularly featuring

nudity and thus would no longer be classified as

a sexually oriented business. As such, it would

be free to show nudity so long as it did not

again "regularly feature" it. The point is that

the Section VIII(A) prohibition on nudity in

establishments that regularly feature nudity is

a legal nullity unless Cumberland or courts

define a time period during which the venue will

be classified as a sexually oriented business, by

virtue of its regular featuring of nudity in the

past, even after Section VIII(A) prevents further

presentation of nudity within. 

/5 Section XI(3)-(5) requires disclosure of

information relating to the applicant’s

cohabitants, and Section XIII(C)(2) and

XIII(C)(4)-(5) disqualify applicants based on

that information. The plaintiffs do not challenge

these provisions on appeal, and the district

court correctly held that they lack third-party

standing to challenge these provisions on behalf

of their cohabitants. See Schultz, 26 F.Supp. at

1149 n.2. Similarly, the plaintiffs do not have

standing to challenge Ordinance provisions

relating to corporate shareholders because the

Island Bar is a sole proprietorship. 

/6 Section II(23)(a) defines "specified criminal

activity" as 

prostitution or promotion of prostitution;

dissemination of obscenity; sale, distribution or

display of harmful material to a minor; sexual

performance by a child; possession or

distribution of child pornography; public

lewdness; indecent exposure; indecency with a

child; engaging in organized criminal activity;

sexual assault; molestation of a child; gambling;

or distribution of a controlled substance; or any
similar offenses to those described above under

the criminal or penal code of other states or

countries.