United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_____________

No. 96-1098

_____________

Excalibur Group, Inc., a *

Minnesota Corporation, *

*

Plaintiff - Appellant, * Appeal from the United States

* District Court for the

v. * District of Minnesota.

*

City of Minneapolis, *

*

Defendant - Appellee. *

_____________

Submitted: November 20, 1996

 Filed: June 24, 1997

_____________

Before FAGG, WOLLMAN, and HANSEN, Circuit Judges.

_____________

HANSEN, Circuit Judge.

The Excalibur Group, Inc., (Excalibur) operates an adult bookstore,

Sex World, in downtown Minneapolis, Minnesota. Excalibur brought this

action, seeking declaratory and injunctive relief on the basis that certain

portions of Minneapolis Code 
The Honorable Michael J. Davis, United States District Judge for the District 1

of Minnesota.

The staff looked at studies performed in Seattle, Washington; Chicago, Illinois; 2

Los Angeles, California; Indianapolis, Indiana; and Portland, Oregon. (Appellant's

App. at 85.)

2

of Ordinances § 540.410, which regulates adults-only businesses, are

unconstitutional under the First and Fourteenth Amendments of the United

States Constitution. The district court granted summary judgment to the 1

City of Minneapolis, and we affirm. 

I.

A. General Background of Section 540.410

Over twenty years ago, the City of Minneapolis (the city) enacted

Minneapolis Code of Ordinances § 540.410, a zoning ordinance regulating

adults-only businesses. In 1986, the city amended the ordinance for the

third time, adding the provisions challenged in this case. The creation

of section 540.410 and its amendments involved the sensitive balancing of

the adults-only businesses' interest in free speech with the city's

interest in minimizing the adverse secondary effects caused by those

businesses. In the process of enacting the 1986 amendment, the city held

several public hearings, giving citizens, business owners, civic leaders,

and community organizations an opportunity to voice their opinions about

the ordinance. 

In addition to conducting the hearings, the city directed its

Planning Department Staff (the staff) to study various empirical studies

of other cities regarding the effects of adults-only businesses on their

surrounding areas. The Indianapolis study, the results of which were

2

similar to those in the other studies, found that adults-only businesses

adversely impacted the areas surrounding adults-only businesses in numerous

ways. The incidence of major crimes in surrounding areas was 23 percent
3

higher than in other areas, and sex-related crimes occurred almost twice

as often. Housing values appreciated at only half the rate as values in

other areas of the city, and property turnover was substantially higher.

The evidence of these and other deleterious effects, as well as the

testimony received at the hearings, convinced the staff that the downtown

area in Minneapolis was best able to "buffer" the impact of adult

businesses on surrounding neighborhoods. The staff recommended enacting

the proposed amendment to "control the adverse impacts on residentially

zoned areas and the City's fragile strip and neighborhood commercial

areas." (Appellant's App. at 85.)

In addition to the restrictions on location, the staff proposed an

amendment regulating the signs identifying the adults-only businesses and

prohibiting the display of their merchandise in a manner that would be

visible from the sidewalk in front of the establishments. The staff felt

that controlling the appearance and image of the sexually oriented

businesses would make the locational restrictions more effective in

minimizing the blighting impact of adults-only businesses. 

The staff's findings and recommendations were adopted by the

Minneapolis City Planning Commission, and the city ultimately enacted the

proposed amendments. Subsection (a) of the amended ordinance states the

city's objectives for the restrictions found therein:

In the development and execution of this section, it is

recognized that there are some uses which, because of their

very nature, are recognized as having serious objectionable

operational characteristics, particularly when several of them

are concentrated under certain circumstances thereby having a

deleterious effect upon the use and enjoyment of adjacent

areas. Special regulation of these uses is necessary to insure

that these adverse effects will not contribute to the blighting

or downgrading of the surrounding neighborhood. . . . The

primary control or regulation is for the purpose of preventing

a concentration of these uses in any one area. 
4

Minneapolis, Minn., Code of Ordinances § 540.410(a).

It was not long before the locational restrictions in the ordinance

were challenged as unconstitutional abridgments on speech. We upheld those

restrictions, finding them to be permissible regulations on the time, place

and manner of the adults-only businesses' speech. Alexander v. City of

Minneapolis, 928 F.2d 278, 283-84 (8th Cir. 1991). 

We now address a constitutional challenge to the sign requirements,

which are codified in subsection (g) of the ordinance:

(g) Sign requirements for all uses. All new regulated uses, and all

existing regulated uses by December 1, 1988, shall comply with the

following sign requirements:

(1) All signs shall be flat wall signs.

(2) The amount of allowable sign area shall be one square foot

of sign area per foot of lot frontage on a street.

(3) No merchandise or pictures of the products or

entertainment on the premises shall be displayed in window

areas or any area where they can be viewed from the sidewalk in

front of the building.

(4) Window areas shall not be covered or made opaque in any

way. No signs shall be placed in any window. A one-squarefoot sign may be placed on the door to state hours of operation

and admittance to adults only.

Minneapolis, Minn., Code of Ordinances § 540.410(g). Excalibur contends

that subsection (g)(3) is overbroad and subsection (g)(4) is

unconstitutional on its face and as applied to Excalibur.
Excalibur also challenged the constitutionality of § 34.60(a)(1) of the

3

Minneapolis Code of Ordinances, which requires approval from the Heritage

Preservation Commission prior to the placement of signs on certain buildings. The

district court held that this ordinance is not applicable to window signs and that

Excalibur had no meritorious First Amendment claim against the ordinance. The

parties do not appeal that holding. 

5

B. Procedural Background

After receiving notification from the city zoning inspector that it

was in violation of subsections (g)(3) and (g)(4), Excalibur brought this

declaratory judgment action in federal court, arguing that subsection

(g)(4) of the above ordinance is facially unconstitutional and

unconstitutional as applied to Excalibur. Excalibur then filed a motion 3

seeking a temporary restraining order and a preliminary injunction. After

conducting a hearing, the district court denied Excalibur's motion,

concluding Excalibur was unlikely to succeed on the merits of its claims.

Subsequently, the city filed criminal charges against Dennis

Buchanan, who operates Sex World, and the owner of another adult bookstore

for violations of sections 541.410(g)(3) and (g)(4). The defendants were

found guilty as charged, and the Minnesota Court of Appeals affirmed the

convictions. See State v. Holmberg, 545 N.W.2d 65, 74 (Minn. Ct. App.

1996).

While the criminal case was still pending, however, the city brought

a motion for summary judgment on the merits of the declaratory judgment

action. In Excalibur's memorandum in opposition to the city's motion,

Excalibur argued the claims submitted in its original complaint, as well

as an additional claim that section 540.410(g)(3) is unconstitutionally

overbroad. The district court addressed all of Excalibur's claims, found

them lacking in merit, and granted the city's motion for summary judgment.

This appeal followed.
6

II.

We review the district court's grant of summary judgment de novo,

using the same standard under Federal Rule of Civil Procedure 56(c) as

applied by the district court. Toney v. WCCO Television, Midwest Cable &

Satellite, Inc., 85 F.3d 383, 386 (8th Cir. 1996). Under Rule 56(c),

summary judgment is warranted when "there is no genuine issue as to any

material fact and . . . the moving party is entitled to judgment as a

matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986). 

The material facts in this case are undisputed. Further, the parties

agree that Sex World is an adults-only bookstore and therefore subject to

the regulations in section 540.541. See Minneapolis, Minn., Code of

Ordinances § 540.410(a), (b)(1). The parties also agree that Excalibur is

entitled to free-speech protections under the First and Fourteenth

Amendments. See Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65-66 (1981)

(recognizing First Amendment protection for sexually explicit speech that

is not "obscene"); 44 Liquormart, Inc. v. Rhode Island, 116 S. Ct. 1495,

1515 (1996) (noting that the Fourteenth Amendment extends First Amendment

protection to state and local levels). Thus, we limit our inquiry to the

legal question of whether the challenged portions of the ordinance are

unconstitutional restrictions on free speech.

A. Section 540.410(g)(4)

 

Excalibur contends that section 540.410(g)(4) unconstitutionally

infringes on Excalibur's First Amendment rights. Because the ordinance

does not create an absolute ban on speech, it is "`properly analyzed as a

form of time, place, and manner regulation.'" ILQ Invs., Inc. v. City of

Rochester, 25 F.3d 1413, 1416 (8th Cir.) (quoting City of Renton v.

Playtime Theatres, Inc., 475 U.S. 41, 46 (1986)), cert. denied, 513 U.S.

1017 (1994). Time, place, and manner regulations are constitutional under

First Amendment jurisprudence if (1) they "are justified without reference

to the 
7

content of the regulated speech," (2) "they are narrowly tailored to serve

a significant governmental interest," and (3) "they leave open ample

alternative channels for communication of the information." Ward v. Rock

Against Racism, 491 U.S. 781, 791 (1989) (internal quotations omitted).

We first consider whether section 540.410(g)(4) is content-neutral.

A regulation is content-neutral if it is "justified without reference to

the content of the regulated speech." Id. (emphasis and internal

quotations omitted). Such a regulation is neutral "even if it has an

incidental effect on some speakers or messages but not others." Id.

(citing Renton, 475 U.S. at 47-48). Thus, at this point in the analysis,

we focus on the city's purpose for enacting the ordinance. Id.; ILQ Invs.,

Inc., 25 F.3d at 1416.

The purpose statement in section 540.410(a) indicates that the city

enacted the ordinance to minimize the adverse impacts of the sexually

oriented businesses on the surrounding areas. Specifically, the city

recognized that "serious objectionable operational characteristics [of

sexually oriented businesses have] a deleterious effect upon the use and

enjoyment of adjacent areas" and enacted section 540.410 "to ensure that

these adverse effects will not contribute to the blighting or downgrading

of the surrounding neighborhood." Minneapolis, Minn., Code of Ordinances

§ 540.541(a). This purpose of eliminating "secondary effects" that are

unrelated to the content of the restricted speech renders section 540.410

a content-neutral ordinance. See Renton, 475 U.S. at 47-48. Cf.

Alexander, 928 F.2d at 282-83 (assuming section 540.410 was content-neutral

and noting that the plaintiff was not appealing the district court's

decision reaching this conclusion).

Excalibur argues that the secondary-effects justification for section

540.410 applies only to the locational restrictions in the ordinance, not

to the sign requirements in subsection (g)(4) of the ordinance. We reject

this argument, because the purpose statement in subsection (a) is clearly

intended to explain the basis for all of the provisions in the ordinance.

While the purpose statement specifically notes that the 
8

ordinance seeks to prevent a concentration of adults-only businesses in any

one area, the concern about the adverse impacts of the adults-only

businesses and the intent to minimize those impacts applies to all of the

substantive provisions of section 540.410.

Excalibur also contends the legislative history of the ordinance does

not support the city's claim that the purpose of the sign restrictions was

to minimize secondary effects. Relying on a report made by the staff of

the City Planning Commission and adopted by the Commission, Excalibur

argues the city was merely trying to further aesthetic objectives by

creating the sign restrictions. See Ward, 491 U.S. at 793 (noting that

regulation to further purely aesthetic goals would "raise serious First

Amendment concerns"). The report reads: "The Downtown is best able to

`buffer' the impact of adult uses on surrounding properties. This would

be even more effective if design controls were included to control the

appearance and image of adult businesses." (Appellee's App. at A21.)

While this report indicates that the city aimed the sign requirements at

the outward appearance of the adults-only businesses, this regulation was

a legitimate means to serve the city's overall secondary-effects objective

-- minimizing the adverse effects these businesses have on surrounding

areas. The city's secondary-effects justification is unrelated to the

content of any signs, and the sign regulation has no content restrictions.

Section 540.410(g)(4) is therefore a content-neutral regulation. 

We next consider whether subsection (g)(4) was "narrowly tailored to

serve a significant governmental interest." Ward, 491 U.S. at 791; see

also Renton, 475 U.S. at 47 (stating that the regulation must be "designed

to serve a substantial governmental interest"). The question of whether

the ordinance serves a significant governmental interest is easily

resolved, because, as a matter of settled law, regulations aimed at

minimizing the secondary effects of sexually oriented businesses serve a

significant and substantial governmental interest. See, e.g., Renton, 475

U.S. at 50; ILQ Invs., Inc., 25 F.3d at 1416; Holmberg v. City of Ramsey,

12 F.3d 140, 143 (8th Cir. 1993), cert. denied, 513 U.S. 810 (1994); see

also Young v. American Mini Theatres, Inc., 427 
9

U.S. 50, 71 (1976) (plurality opinion) ("[T]he city's interest in

attempting to preserve the quality of life is one that must be accorded

high respect."). Furthermore, this record, which includes studies of

several cities and evidence obtained at the hearings held by the City of

Minneapolis, indicates that the city had substantial evidence on which to

base its conclusions about the secondary effects of adults-only businesses.

See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 665-66 (1994)

(explaining that legislative predictive judgments are entitled to deference

in the First Amendment context of content-neutral regulation as long as the

conclusions are "reasonable inferences based on substantial evidence");

Renton, 475 U.S. at 51-52 ("The First Amendment does not require a city,

before enacting such an ordinance, to conduct new studies or produce

evidence independent of that already generated by other cities, so long as

whatever evidence the city relies upon is reasonably believed to be

relevant to the problem that the city addresses."). The issue thus narrows

to whether the sign restrictions in subsection (g)(4) are themselves

narrowly tailored to serve the city's significant interest. 

To be "narrowly tailored" in this context, the regulation need not

be the least restrictive means of serving the city's content-neutral

interest. Ward, 491 U.S. at 797; Van Bergen v. Minnesota, 59 F.3d 1541,

1555 n.13 (8th Cir. 1995). "[T]he requirement of narrow tailoring is

satisfied so long as the regulation promotes a substantial interest that

would be achieved less effectively absent the regulation" and the means

chosen does not "burden substantially more speech than is necessary to

further" the city's content-neutral interest. Ward, 491 U.S. at 799

(internal quotations omitted); see also Turner Broad., Inc. v. FCC, 117 S.

Ct. 1174, 1186 (1997) (citing United States v. O'Brien, 391 U.S. 367, 377

(1968)). "[T]he validity of the regulation depends on the relation it

bears to the overall problem the [city] seeks to correct, not on the extent

to which it furthers the [city's] interests in an individual case." Ward,

491 U.S. at 801. We will not strike down a time, place, or manner

regulation merely because we can envision a less-restrictive or more

effective means of furthering the city's content-neutral objectives. Ward,

491 U.S. at 800. 
10

 The city sought to minimize the blighting caused by adult-only

businesses in two ways. First, the city required the adults-only

businesses to operate within a specifically zoned area in downtown

Minneapolis, the area "best able to `buffer' the impact of adult uses on

surrounding properties." (Appellee's App. at A21.) Second, the city

attempted to minimize the visual impact of the businesses on the

neighborhood by regulating the signs on the businesses' premises. This

second remedy stemmed from a belief that the locational limitations would

"be even more effective if design controls were included to control the

appearance and image of adult businesses." (Id.) 

The design controls that Excalibur challenges impose some modest

restrictions on the external appearance of adults-only businesses. See

Minneapolis, Minn., Code of Ordinances § 540.410(g)(4). Window areas may

not be covered or made opaque, nor are signs permitted in the windows. Id.

A one square-foot sign is allowed on the door, however. Id. Subsection

(g)(4) works in conjunction with subsection (g)(1), which provides that all

exterior signs must be flat wall signs, and subsection (g)(2), which allows

one square foot of sign area per foot of lot frontage on a street.

Together, these provisions control the outward appearance of adults-only

businesses.

We hold that the restrictions in subsection (g)(4) are narrowly

tailored to further the city's significant interest in alleviating the

adverse impact of sexually oriented businesses on their neighborhoods.

Having before it substantial evidence of the urban blight caused by the

mere presence of these businesses, the city could reasonably conclude that

controlling their outward appearance would lessen the effect they would

have on surrounding commercial and residential neighborhoods. The city

could also reasonably conclude that sign and window regulations would be

an appropriate means by which to achieve this purpose. See Young, 427 U.S.

at 71 (noting that a "city must be allowed a reasonable opportunity to

experiment with solutions to admittedly serious problems"). The sign and

window restrictions do not reach substantially more speech than necessary,

for they are directed only at the signs and window coverings that would

affect the outward appearance of the businesses and impact the surrounding
At oral argument, the city explained that Excalibur (operated by Dennis

4

Buchanan) could comply with both the display regulations in subsection (g)(3) and the

requirement to leave windows unobstructed by signs or covers by placing the backside

of a bookshelf against a window. Dennis Buchanan, who operated Excalibur, was

aware of this means of compliance, because he was present when the city inspector

mentioned this to Buchanan's brother, who also operated an adults-only bookstore in

Minneapolis. Holmberg, 545 N.W.2d at 73. 

11

neighborhoods. See Ward, 491 U.S. at 799 n.7 (explaining that a regulation

is narrowly tailored when its focus on the evils sought to be eliminated

does not "restrict[] a substantial quantity of speech that does not create

the same evils").

Excalibur challenges the reasonableness of the restrictions contained

in subsection (g)(4) on several grounds. Excalibur claims that it is

unreasonable to prohibit window signs in favor of signs on a wall.

Further, Excalibur claims that subsection(g)(4)'s prohibition of covered

or opaque windows is inconsistent with subsection (g)(3)'s requirements

that displays of merchandise or entertainment not be visible from the

sidewalk. 

We disagree that the sign and window restrictions are unreasonable.

The city could reasonably have concluded that leaving the windows free of

signs and coverings would enhance the outward appearance of, and therefore

minimize the adverse effects caused by, sexually oriented businesses.

Further, the city's regulations are not inconsistent, because Excalibur

could avoid the visibility of its merchandise through unobstructed windows

by turning its display stands so the merchandise does not face the

windows. More importantly and to the point, we believe Excalibur invites 4

us to strike down the city's means of furthering its objectives simply

because the means may be imperfect. We decline this invitation. Although

reasonable people might quibble about the extent to which the regulations

serve the city's significant interests or about whether a better solution

might be available, section 540.410(g)(4) is reasonably related to the

city's significant objectives, and therefore "narrowly tailored" as that

term of art 
12

is used in this context. Ward, 491 U.S. at 800.

We have reviewed the cases Excalibur cites to support its claim and

find them to be inapposite, because the regulations in them limit or ban

speech based upon its content. See, e.g., Boos v. Barry, 485 U.S. 312, 329

(1988) (invalidating, as an impermissible content-based regulation, an

ordinance prohibiting speech that was critical of certain foreign

governments); Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 515

(1981) (invalidating a sign ordinance banning certain signs by reference

to their noncommercial content, but allowing signs expressing other

noncommercial and commercial speech); Linmark Assocs., Inc. v. Township of

Willingboro, 431 U.S. 85, 93-97 (1977) (invalidating a prohibition on "for

sale" signs as a content-based regulation, because the purpose of the

prohibition was to prevent people acting upon its content); Gilleo v. City

of Ladue, 986 F.2d 1180, 1182-83 (8th Cir. 1993), (invalidating a sign

regulation that disfavored certain types of noncommercial speech and

rejecting a secondary-effects argument because the city made no showing

that the prohibited signs caused any more problems than the permitted

signs) aff'd, 512 U.S. 43 (1994); Goward v. City of Minneapolis, 456 N.W.2d

460, 465-66 (Minn. Ct. App. 1990) (invalidating an ordinance that banned

signs expressing political views but allowed "for rent" signs, "for sale"

signs, and campaign-related signs). Here, however, we are looking at a

content-neutral governmental interest in limiting adverse secondary

effects. The sign and window requirements are reasonably related to the

city's significant governmental interest in minimizing urban blight. Cf.

SDJ, Inc. v. City of Houston, 837 F.2d 1268 (5th Cir. 1988) (holding that

controls on the outward appearance of adults-only bookstores were contentneutral regulations narrowly tailored to serve significant governmental

interests), cert. denied, M.E.F. Enters., Inc. v. City of Houston, 489 U.S.

1052 (1989).

Finally, we believe section 540.410 leaves open ample alternative

avenues of communication. Excalibur is free to communicate information on

signs outside of its building, within the modest restrictions imposed under

subsection (g). The regulation 
 The city claims that Excalibur's overbreadth challenge to section 5410.410(g)(3) 5

is not properly before this court. Excalibur did not include its claim regarding

subsection (g)(3) in its complaint and first briefed the issue in opposition to the city's

motion for summary judgment. We believe the issue is properly before us, however,

because the district court, apparently believing that the parties had impliedly consented

to include it, addressed the issue on the merits. See Fed. R. Civ. P. 15(b) ("When

issues not raised by the pleadings are tried by express or implied consent of the parties,

they shall be treated in all respects as if they had been raised in the pleadings."). This

belief on the part of the district court was reasonable because the city did not raise any

procedural objections to Excalibur's overbreadth argument. Accordingly, the

overbreadth issue has been preserved for appeal.

13

provides for a sign on the door and allows flat signs on the wall of the

building, with only some reasonable limitations on their size. These

alternative avenues of communication provide ample opportunity for

Excalibur to express itself. In addition, Excalibur may communicate

information inside the store, limited only in that merchandise may not be

visible from the sidewalk on the street. 

Having found that Minneapolis Code of Ordinances § 540.410(g)(4) is

content-neutral, narrowly tailored to further a significant governmental

interest, but also permissive enough to leave open alternative channels of

communication, we hold that the ordinance is a constitutional regulation

of the time, place, and manner of speech.

B. Section 540.410(g)(3)

Excalibur mounts a facial challenge to Minneapolis Code of Ordinances

§ 540.410(g)(3), which prohibits the display of merchandise or pictures in

window areas or any other area that is visible from the sidewalk in front

of the adults-only businesses. Excalibur claims this provision is

unconstitutionally overbroad.5

The overbreadth doctrine applies in the narrow context of facial

challenges to legislation based upon free-speech rights. This doctrine

represents a departure from 
14

traditional standing rules, see Lujan v. Defenders of Wildlife, 504 U.S.

555, 560-61 (1992) (articulating the standing requirements), and allows a

party like Excalibur to challenge an ordinance on the ground that the

ordinance might be applied unconstitutionally to third parties whose actual

circumstances are not before the court. Bates v. State Bar of Ariz., 433

U.S. 350, 380 (1977). The doctrine developed out of a recognition that

an overly broad statute may chill protected speech and the conclusion that

"the possible harm to society from allowing unprotected speech to go

unpunished is outweighed by the possibility that protected speech will be

muted." Id. Because the overbreadth doctrine has far-reaching

ramifications, however, it is "`strong medicine' that should be employed

only `with hesitation,' and then `only as a last resort.'" Upper Midwest

Booksellers Ass'n v. City of Minneapolis, 780 F.2d 1389, 1391 (8th Cir.

1985) (quoting New York v. Ferber, 458 U.S. 747, 769 (1982)). To be

facially invalidated under this doctrine, the overbreadth of an ordinance

affecting both conduct and pure speech must be both "real" and

"substantial" in relation to its "plainly legitimate sweep." Ferber, 458

U.S. at 769-70; Broadrick v. Oklahoma, 413 U.S. 601, 615 (1973). There is

real and substantial overbreadth when there is "a realistic danger that the

ordinance itself will significantly compromise recognized First Amendment

protections of parties not before the [c]ourt." Members of City Council

v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). We will not strike

down a ordinance for overbreadth if its legitimate reach "dwarfs its

arguably impermissible applications." Ferber, 458 U.S. at 773. 

Excalibur claims section 540.410(g)(3) is unconstitutionally

overbroad. Excalibur notes that some businesses classified as adults-only

bookstores may have merchandise for sale that is not pornographic or

sexually oriented. See Minneapolis, Minn., Code of Ordinances § 540.410(b)

(defining an "adults-only bookstore" as "[a]n establishment having as a

substantial or significant portion of its stock in [materials] which are

distinguished or characterized by their principal emphasis on [sexually

oriented matters], or an establishment with a segment or section devoted

to the sale or display of such material . . . ."). Excalibur further

points out that subsection (g)(3) 
15

prohibits the display of any merchandise or pictures in a manner that would

be visible from the sidewalk in front of the business. Thus, Excalibur

maintains, subsection (g)(3) is overbroad in that it conceivably prohibits

the display of merchandise such as a Walt Disney video or the Holy Bible.

Excalibur asks us to strike down this provision for the sake of third

parties whose constitutionally protected speech may be chilled by

subsection (g)(3). 

Based upon a narrow construction of the ordinance, the district court

found that § 540.410(g)(3) is not overbroad. "It has long been a

fundamental tenet of First Amendment law that in determining a facial

challenge to a statute, if it be `readily susceptible' to a narrowing

construction that would make it constitutional, it will be upheld."

Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397 (1988). Here,

the district court upheld subsection (g)(3) on the basis that the ordinance

would prohibit the visibility only of sexually oriented materials.

Excalibur contends the district court's construction is untenable, however,

because the Minnesota Court of Appeals has considered an overbreadth

challenge to this provision and did not construe section 540.410(g)(3)

narrowly. See State v. Holmberg, 545 N.W.2d 65, 70 (Minn. Ct. App. 1996).

We reject Excalibur's contention that the Minnesota Court of Appeals

made no effort to construe the ordinance narrowly. In Holmberg, the court

addressed Excalibur's overbreadth argument in the context of a criminal

appeal arising from the same facts as this action. The court described the

speech at issue as commercial and adult (sexually oriented) speech. Noting

the Supreme Court's statements that these categories of speech are entitled

to only limited First Amendment protection, the Minnesota Court of Appeals

held that subsection (g)(3) was not overbroad. Id. at 70. While the court

did not explicitly state it was construing subsection (g)(3) narrowly, the

reasoning in its opinion rests on the assumption that subsection (g)(3)

applies to only commercial and sexually oriented speech. The court's

opinion certainly did not anticipate the ordinance prohibiting displays of

materials outside the scope of these two 
16

narrow categories of speech. Accordingly, we will likewise construe the

provision as applying only to displays of commercial speech and sexually

oriented speech. 

To the extent that subsection (g)(3) prohibits the display of

commercial speech, that is, speech that "does no more than propose a

commercial transaction," Virginia State Bd. of Pharmacy v. Virginia

Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (internal

quotations omitted), the ordinance withstands Excalibur's overbreadth

challenge. Commercial speech, as "the offspring of economic self-interest,

is a hardy breed of expression that is not particularly susceptible to

being crushed by overbroad regulation." Central Hudson Gas & Elec. Corp.

v. Public Serv. Comm'n of N.Y., 447 U.S. 557, 564 n.6 (1980). "[B]ecause

the profit motive is thought to be sufficiently compelling to enable such

speech to withstand the chilling effect of an overbroad statute," we have

noted that the overbreadth doctrine does not apply to commercial speech.

Garner v. White, 726 F.2d 1274, 1277 (8th Cir. 1984); see also Waters v.

Churchill, 511 U.S. 661, 670 (1994) (noting that the Supreme Court has not

extended the overbreadth doctrine to the commercial context); Ohralik v.

Ohio State Bar Ass'n, 436 U.S. 447, 462 n.20 (1978) (stating that because

it is not as likely to be deterred as noncommercial speech, commercial

speech does not require the protection of the overbreadth doctrine); Bates,

433 U.S. at 380-81 (explaining that "the justification for the application

of overbreadth analysis applies weakly, if at all, in the ordinary

commercial context"); Van Bergen, 59 F.3d at 1549-50 (rejecting an

overbreadth argument because the affected third-party commercial entities

were capable of bringing the constitutional claim themselves and because

the statute would not likely chill their speech). Likewise, in this case,

we decline to apply the "strong medicine" of the overbreadth doctrine to

strike down subsection (g)(3) for the sake of third parties' commercial

speech. Ferber, 458 U.S. at 769.

What remains then is subsection (g)(3)'s restriction on the display

of sexually oriented materials. As we already explained above in

addressing Excalibur's challenge to the sign and window restrictions in

subsection (g)(4) of the ordinance, section 
17

540.410 is a content-neutral regulation, enacted to further the city's

significant interest in limiting the urban blight caused by adults-only

businesses. The restriction in subsection (g)(3) prohibiting the

visibility of sexually oriented speech through the windows of these

establishments falls within the legitimate sweep of the ordinance. Thus,

there is nothing overbroad about subsection (g)(3)'s regulation of displays

of sexually oriented speech.

Because commercial speech does not warrant the protection of the

overbreadth doctrine and sexually oriented speech is legitimately regulated

by the ordinance, we will not strike down section 540.410(g)(3) as

unconstitutionally overbroad. Cf. Upper Midwest Booksellers Ass'n, 780

F.2d at 1391-94 (rejecting overbreadth challenge to an ordinance creating

restrictions on displays of any material that is "harmful to minors").

III.

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

A true copy.

Attest:

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