United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 01-1521

___________

John Ways, *

*

Plaintiff-Appellee, *

*

v. *

*

City of Lincoln, Nebraska, a city of *

the primary class; Don Wesely, Mayor * Appeal from the United States

of Lincoln; City Council, City of * District Court for the

Lincoln; Jeffery Fortenberry, City * District of Nebraska.

Council; Jon A. Camp, City Council- *

person; Cindy Johnson, City Council- *

person; Jonathan Cook, City Council- *

person; Annette McRoy, City Council- *

person; Colleen Seng, City Council- *

person, Chair; Jerry Shoecraft, City *

Councilperson; Tom Casady, Chief of *

Police for the City of Lincoln, Nebraska,*

* 

Defendants-Appellants. *

___________

Submitted: October 18, 2001

Filed: December 14, 2001

___________

Before MURPHY, BEAM, and BYE, Circuit Judges.

___________

MURPHY, Circuit Judge.
1

 The Honorable Warren K. Urbom, United States District Judge for the District

of Nebraska.

2

 The full text of the ordinance follows:

9.16.240 Sexual Contact: Prohibited.

(a.) It shall be unlawful for any employee or performer (including

amateur performers) in any business or commercial establishment to

have any sexual contact with any other employee, performer or

patron for gratuity, pay or other remuneration, direct or indirect, or,

in conjunction with or as part of any performance or entertainment

in any business or commercial establishment.

(b.) It shall be unlawful for any patron to have sexual contact with any

employee or performer in any business or commercial establishment.

(c.) For the purposes of this section, sexual contact shall mean the

intentional touching of a person's sexual organ, buttocks, or breasts,

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John Ways brought this action to challenge the constitutionality of a now

repealed Lincoln ordinance prohibiting sexual contact in entertainment businesses.

The district court1

 enjoined enforcement of the ordinance after concluding that it was

unconstitutionally overbroad in violation of the First Amendment. We affirm.

The Lincoln City Council passed Ordinance No. 17613, codified as Lincoln

Municipal Code Section 9.16.240, on February 22, 2000. The ordinance prohibited

any employee or performer from having sexual contact with any other person for

remuneration or in conjunction with a performance or entertainment in any business

establishment. It defined sexual contact as "intentional touching of a person's sexual

organ, buttocks, or breasts, whether covered or not, or kissing, when such contact can

reasonably be construed as being for the purpose of sexual arousal or gratification of

either party or any observer." The ordinance outlined not only what conduct was

prohibited, but also those who may be held responsible for it.2

 The preface to the
whether covered or not, or kissing, when such contact can reasonably

be construed as being for the purpose of sexual arousal or

gratification of either party or any observer.

(d.) It shall be unlawful for any person purposely or knowingly to solicit,

induce, or attempt to induce another person to engage in an act or

acts prohibited hereunder.

(e.) It shall be unlawful for the owner, lessee, proprietor, or manager of

any business or commercial establishment to knowingly allow any

person on the premises of such business or commercial establishment

to engage in an act or acts prohibits [sic] hereunder.

Lincoln, Neb., Mun. Code § 9.16.240 (2000). 

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ordinance stated that it intended to curb secondary effects of public sexual contact,

such as immorality, "prostitution, assaultive behavior, and other related criminal

behavior."

On March 6, 2000, John Ways filed this action alleging that Ordinance No.

17613 was unconstitutionally vague and overbroad, in violation of the First

Amendment to the United States Constitution. Ways is director of operations for

Mataya's "Babydolls" Gentlemens Club in Lincoln, Nebraska, and a shareholder in

the corporation that does business as Mataya's, an alcohol-free adult entertainment

business featuring women dancers. The district court issued a preliminary injunction

enjoining enforcement of Ordinance No. 17613, but before the case came on for trial

the Lincoln City Council enacted Ordinance No. 17657, which effectively repealed

Ordinance No. 17613. 

Ordinance No. 17657 is similar to the ordinance involved in this case except

for the addition of a subsection (f), which exempts theaters, concert halls, and art

centers from the prohibitions of the ordinance:
3

 The district court concluded that this case is not moot under the voluntary

cessation doctrine, which applies when there is nothing to prevent a defendant from

returning to "his old ways." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283,

289 n.10 (1982). No one has raised a question of mootness on appeal, and since the

fee award is part of the appeal, the constitutionality of the repealed ordinance needs

to be addressed even if there were no prospect of reinstatement of the original

ordinance.

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(f.) The provisions of this section shall not apply to a theater,

concert hall, art center, museum, or similar establishment

which is primarily devoted to the arts or theatrical

performances and in which any of the circumstances

contained in this section were permitted or allowed as part

of such art exhibits or performances.

After enactment of Ordinance No. 17657, Ways filed a new action to challenge it. In

that case, which is still pending, the district court denied his motion for preliminary

injunctive relief. The constitutionality of Ordinance No. 17657 with new subsection

(f) is not before us on this appeal which involves only the original ordinance.3

After trial in this case was held on October 2, 2000, the court concluded that

Ordinance No. 17613 was not unconstitutionally vague but that it was

unconstitutionally overbroad because it "contains no exception for theaters, concert

halls, art centers, [or] museums" and because the city had not shown that "public

sexual contact in venues other than the adult entertainment business is an accurate

predictor of secondary adverse effects." The district court noted that nude dancing

is "expressive conduct within the outer perimeters of the First Amendment," Barnes

v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). In addition to its overbreadth

analysis the district court employed the test from United States v. O'Brien, 391 U.S.

367, 377 (1968), concluding that Ordinance No. 17613 restricted First Amendment

rights more than necessary to further an important government interest. The court

rested its decision on its conclusion that Ordinance No. 17613 was facially overbroad,

rather than on any application of the ordinance to Mataya's. 
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The court granted Ways a permanent injunction and nominal damages of $1.00,

as well as $5,693.10 in attorney fees and $630.14 in costs. The fee award reflected

a reduction in the requested hourly rate and hours and application of a discount to

reflect the degree of success. The court noted that Ways had not followed a local rule

requiring evidence in support of a fee application, and it therefore picked an hourly

rate based on its own "past experience when there was evidence" (emphasis in

original). The city appeals from the judgment.

The City of Lincoln argues that Ordinance No. 17613 was not overbroad

because it did not significantly compromise First Amendment rights and would not

be unconstitutional applied to Mataya's. It also asserts that the district court abused

its discretion in assigning hourly rates without evidence from Ways and in awarding

fees beyond what was justified. Ways argues that the ordinance is overbroad because

it covers conduct in "any business or commercial establishment," not merely in adult

entertainment facilities, and because it would restrict constitutionally protected

artistic expression, such as theater and ballet performances. Ways also supports the

award of fees and costs. 

The First Amendment protects "live entertainment, such as musical and

dramatic works," Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981), and

artistic expression containing nudity or simulated sexual conduct. See Southeastern

Promotions Ltd. v. Conrad, 420 U.S. 546, 550, 557-58 (1975) (Hair is protected

speech despite "group nudity and simulated sex"); Doran v. Salem Inn, Inc., 422 U.S.

922, 933 (1975) (artistic performances involving nudity have "unquestionable artistic

and socially redeeming significance"). Our review of the First Amendment issue is

de novo. Planned Parenthood v. Dempsey, 167 F.3d 458, 461 (8th Cir. 1999)

An ordinance prohibiting a broad range of protected expression may be facially

challenged as overbroad. Members of City Council of Los Angeles v. Taxpayers for

Vincent, 466 U.S. 789, 796 (1984). Under the overbreadth doctrine, "an individual
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whose own speech or conduct may be prohibited is permitted to challenge a statute

on its face 'because it also threatens others not before the court – those who desire to

engage in legally protected expression but who may refrain from doing so.'" Board

of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987), quoting

Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). The rationale for

allowing an individual to assert the constitutional rights of others not before the court

is that "broadly written statutes may have such a deterrent effect on free expression

that they should be subject to challenge even by a party whose own conduct may be

unprotected." Taxpayers for Vincent, 466 U.S. at 798. The overbreadth doctrine is

"strong medicine" to be used "sparingly" and only when the overbreadth is not only

"real, but substantial as well, judged in relation to the statute's plainly legitimate

sweep." Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973). 

A successful overbreadth claim must show that a challenged statute will

"compromise recognized First Amendment protections of parties not before the

[c]ourt" who engage in "conduct more likely to be protected by the First Amendment

than [plaintiff's] own [conduct]." Taxpayers for Vincent, 466 U.S. at 801, 802. Ballet

and theater performances receive greater First Amendment protection than nude

dancing, and Ordinance No. 17613 could have been enforced to prohibit the type of

simulated sex to be found in productions of Hair. The ordinance could also have been

enforced to prohibit stage actors from kissing and ballet dancers or ice skaters from

lifting each other by the buttocks, if such acts could "reasonably be construed" to be

for the "sexual arousal or gratification" of any observer or performer. 

If a statute infringes upon a protected liberty, it must be narrowly tailored to

further a sufficiently substantial government interest. Schad, 452 U.S. at 68. The

original Lincoln ordinance sought to deter immorality and to curb "prostitution,

assaultive behavior, and other related criminal behavior." The government has a

sufficiently substantial interest in curbing such secondary effects, see Barnes v. Glen

Theatre, Inc., 501 U.S. 560, 569 (1991) (plurality opinion) (substantial government
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interest in protecting morality); City of Erie v. Pap's A.M., 529 U.S. 277, 290-91

(2000) (plurality opinion) (substantial government interest in curbing secondary

effects of adult entertainment businesses), but Ordinance No. 17613 was not tailored

to combat only them and swept further than necessary. It did not exclusively cover

conduct in adult entertainment businesses, which has been recognized to cause

harmful secondary effects, see Pap's A.M., 529 U.S. at 296-97, but also covered

conduct in "any business or commercial establishment," which could include theater

performances, ballet performances, and many other forms of live entertainment. The

Lincoln City Council referred to no findings that theatrical kissing and ballet lifts

cause harmful secondary effects. The city's secondary effects rationale was therefore

"open to question" in respect to Ordinance No. 17613 because it could have been

enforced to bar expressive conduct in classes of productions not readily analogous to

adult type entertainment. See Farkas v. Miller, 151 F.3d 900, 904 (8th Cir. 1998),

quoting Barnes, 501 U.S. at 585 n.2 (Souter, J., concurring). Under such

circumstances, the city was obligated to "make some demonstration of an evidentiary

basis for the harm it claims to flow from the expressive activity." Pap's A.M., 529

U.S. at 313 (Souter, J., dissenting from judgment). Because the ordinance burdened

First Amendment expression that has not been shown clearly to contribute to the

problems the city sought to solve, it was not appropriately tailored to achieve its

stated purposes. 

Ordinance No. 17613 was unlike the Iowa law found not to be overbroad in

Farkas, 151 F.3d at 905. The Farkas statute prohibited the "actual or simulated public

performance of any sex act" and the exposure of erogenous zones of the body in

businesses operating under a sales tax permit, id. at 901, but it contained an exception

in its application for "a theater, concert hall, art center, museum, or similar

establishment which is primarily devoted to the arts or theatrical performances," id.

at 902. The Iowa statute was directed at performance of sex acts rather than the

broader "sexual contact" defined in Ordinance No. 17613, and it also prohibited

certain types of nudity while the Lincoln ordinance applied whether the body parts
4

 Farkas was decided in 1998, quite some time before the passage of Ordinance

No. 17613 on February 22, 2000, so the Iowa statute could have provided a model

which had survived constitutional challenge.

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were covered or not. The most significant difference, however, is that Ordinance No.

17613 did not contain any exception for artistic venues like the Iowa statute and like

Lincoln's new Ordinance No. 17657.4

Even if a statute is overbroad, it may be saved by a limiting construction that

removes the threat to constitutionally protected speech. Broadrick, 413 U.S. at 613.

A limiting construction cannot be supplied unless an ordinance is "readily

susceptible" to such an interpretation, see State of Va. v. Am. Booksellers Ass'n, 484

U.S. 383, 397(1988), because federal courts "lack jurisdiction authoritatively to

construe state legislation." Gooding v. Wilson, 405 U.S. 518, 520 (1972), quoting

United States v. Thirty-Seven Photographs, 402 U.S. 363, 369 (1971). Limiting

constructions of state and local legislation are more appropriately done by a state

court or an enforcement agency. Ward v. Rock Against Racism, 491 U.S. 781, 795-

96 (1989). The city claims that Ordinance No. 17613 was not intended to apply to

artistic venues, but such an exception was not contained in it nor is the statute readily

susceptible to such an interpretation. The repeal of the ordinance and enactment of

a new one containing such an exception show the difference and show how easy it

was for the city to makes its intent clear.

The city also emphasized at oral argument that the ordinance would not reach

theater or ballet performances because it required intentional touching that "can

reasonably be construed as being for the purpose of sexual arousal" and because

artistic performances would never have met this element. The city overlooks that the

ordinance prohibited such touching for the "gratification of either party or any

observer," and a far greater range of conduct may be directed toward "gratification"

than toward "sexual arousal." Even if the prohibitions were interpreted to reach only
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conduct intending sexual arousal, the city's net was still cast too broadly because

constitutionally protected artistic expression may legitimately intend to titillate or

arouse members of the audience. 

Finally, the city challenges every aspect of the district court's award of fees and

costs, except for the downward adjustment to reflect incomplete success at trial. The

city argues in particular that the district court abused its discretion in choosing an

hourly rate without submission of evidence by the moving party. Ways responds that

the district court acted within the scope of its discretion. Randolph v. Rogers, 170

F.3d 850 (8th Cir. 1999). Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) guides

courts to start with "the number of hours reasonably expended on the litigation

multiplied by a reasonable hourly rate." The district court adopted at least one hourly

rate recommended by the city and chose other hourly rates favorable to it in order "to

capture [the] attention" of plaintiff's counsel. The district court's award of fees and

costs reflects its long experience with hourly rates and its careful scrutiny of the fee

request, and it was well within the scope of its discretion. 

For these reasons, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.