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 Excal ibur Group, Inc., (Excalibur) operates an adult bookstore, Sex Wo rld, in downtown Minneapolis, Minnesota. Excalibur brought thi s action, seeking declaratory and injunctive relief on the basis that certai n portions of Minneapolis Code

## TheHonorable 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 An geles, California; Indianapolis, Indiana; and Portland, Oregon. (Appellant' s App. at 85.)
2 of Ordinances § 540.410, which regulates adults-only businesses, ar e unconstitutional under the First and Fourteenth Amendments of the United States Con stitution. 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) enacte d Minnea polis Code of Ordinances § 540.410, a zoning ordinance regulatin g adults-onlybusinesses. In 1986, the city amended the ordinance for the third time, adding the provisions challenged in this case. The creation of section 540.410 an d its amendments involved the sensitive balancing of the ad ults-only businesses' interest in free speech with the city' s intere st in minimizing the adverse secondary effects caused by thos e businesses. In the p rocess of enacting the 1986 amendment, the city held several public hearin gs, 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 it s 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 wer e 2 similar to those in the other studies, found that adults-only businesses adversely impacted the areas surrounding adults-only businesses in numerou s 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 evide nce of these and other deleterious effects, as well as th e testimony received at the hearings, convinced the staff that the downtown
area in Minneapolis was best able to "buffer" the impact of adul t businesses on surrounding neighborhoods. The staff recommended enacting the pr oposed amendment to "control the adverse impacts on residentiall y zoned areas and the City's fragile strip and neighborhood commercia l areas." (Appellant's App. at 85.)

In addit ion to the restrictions on location, the staff proposed a n amendment regulating the signs identifying the adults-only businesses and prohi biting the display of their merchandise in a manner that would b e visible from the side walk in front of the establishments. The staff felt that c ontrolling the appearance and image of the sexually oriente d busin esses would make the locational restrictions more effective i n minimizing the blighting impact of adults-only businesses.

The staff's findings and recommendations were adopted by th e Minneapolis City Plan ning 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 i s rec ognized that there are some uses which, because of thei r very nature, are recognized as having serious objectionabl e operational characterist ics, particularly when several of them are concentrated under certain circumstances thereby having a deleter ious effect upon the use and enjoyment of adjacen t areas. Special regulation of these uses is necessa ry to insure that these adverse effects will not contribute to t he blighting or d owngrading of the surrounding neighborhood. . . . Th e primary control or regul ation 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 no t long before the locational restrictions in the ordinance
were challenged as unconstitutional abridgments on speech. We upheld thos e restrictions, finding them to be permissible regulations on the time, plac e and manner of the adults-only businesses' speech. Alexander v. City o f Minneapolis , 928 F.2d 278, 283-84 (8th Cir. 1991).

We now ad dress 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, a nd all existing regulated uses by December 1, 1988, shall comply with th e 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 o r ente rtainment on the premises shall be displayed in windo w areas or any area where they can be viewed from the sidewalk in front of the building.
(4) W indow areas shall not be covered or made opaque in an y way. No signs shall be placed in any window. A one-square

foot 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 th at subsection (g)(3) is overbroad and subsection (g)(4) i s unconstitutional on its face and as applied to Excalibur.

## Ex calibur also challenged the constitutionality of § 34.60(a)(1) of th e 3 

## Minneapolis Code of Ordinances, which requires approval from the Heritag e Preserva tionCommission prior to the placement of signs on certain buildings. Th e distri ctcourt held that this ordinance is not applicable to window signs and that Exc alibur had no meritorious First Amendment claim against the ordinance. Th e parties do not appeal that holding.
5 B. Procedural Background

After rec eiving notification from the city zoning inspector that it was in violation of s ubsections (g)(3) and (g)(4), Excalibur brought this declara toryjudgment action in federal court, arguing that subsectio n (g)( 4) of the above ordinance is facially unconstitutional an d unconstitu tional as applied to Excalibur. Excalibur then filed a motion 3 seeking a temporary restraining order and a prel iminary injunction. After condu cting a hearing, the district court denied Excalibur's motion , concluding Excalibur was unlikely to succeed on the merits of its claims.

Subse quently, the city filed criminal charges against Denni s Buchanan, who operates Sex World, and the owner of another adult bookstore for violations of sec tions 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 pe nding, however, the city brought
a motion for summary judgment on the merits of the declaratory judgmen t 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 unconstitutionall y overbroad. The distr ict court addressed all of Excalibur's claims, found them lacking in merit, and granted the city's mo tion for summary judgment. This appeal followed.

## 6 II.

We re view the district court's grant of summary judgment de novo , using the same standard under Federal Rule of Civil Procedure 56(c) a s applied by the distri ct court. Toney v. WCCO Television, Midwest Cable & Sat ellite, Inc. , 85 F.3d 383, 386 (8th Cir. 1996). Under Rule 56(c) , summary j udgment is warranted when "there is no genuine issue as to an y mat erial 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 p arties agree that Sex World is an adults-only bookstore and therefore subject to the regula tions in section 540.541. See Minneapolis, Minn., Code o f Ordinances § 540.410(a), (b)(1). The parties al so agree that Excalibur is entitled to free-speech protections under the First and Fourteent h Amendments. See Schad v. Borough of Mt. Ephraim , 452 U.S. 61, 65-66 (1981 ) (recognizing First Am endment protection for sexually explicit speech that is not "obscene"); 44 Liquormart, Inc. v. Rhode Island , 116 S. Ct. 1495, 1515 (1996) (noting t hat the Fourteenth Amendment extends First Amendment protection to state a nd local levels). Thus, we limit our inquiry to the legal question of whether the challenged portions of the ordinance ar e unconstitutional restrictions on free speech.
A. Section 540.410(g)(4)

Ex calibur contends that section 540.410(g)(4) unconstitutionall y infrin ges on Excalibur's First Amendment rights. Because the ordinanc e does not create an ab solute 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 regulation s are constitutional under First Amendment jurisprudence if (1) they "are j ustified without reference to the

## 7

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

a sign ificant governmental interest," and (3) "they leave open ampl e 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. Aregulation is content-neutral if it is "justified without reference to the c ontent of the regulated speech." Id. (emphasis and interna l quo tations omitted). Such a regulation is neutral "even if it has a n inci dental 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 purpo se statement in section 540.410(a) indicates that the city enacted the ordinance to minimize the adverse impacts of the sexuall y orient ed businesses on the surrounding areas. Specifically, the cit y recognized that "serious objectionable operational characteristics [o f sexuallyoriented 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 ne ighborhood." Minneapolis, Minn., Code of Ordinances § 5 40.541(a). This purpose of eliminating "secondary effects" that ar e unrelated to the cont ent of the restricted speech renders section 540.410

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

. Alexander , 928 F.2d at 282-83 (assuming section 540.410 was content-neutra l and noting that the plaintiff was not appealing the district court' s decision reaching this conclusion).
Excalibur argues that the secondary-effects justification for s ection 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, becaus e the purpose statement in subsection (a) is clearly intended to explain t he 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-onl y businesses and the in tent to minimize those impacts applies to all of the substantive provisions of section 540.410.
Excalibur also contends the legislative history of the ordinanc e 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 Ci ty Planning Commission and adopted by the Commission, Excalibu r argu es the city was merely trying to further aesthetic objectives b y creating the sign restrictions. See Ward , 491 U.S. at 793 (noting tha t regula tion to further purely aesthetic goals would "raise serious Firs t Amendment concerns"). The report reads: "The Downtown is best able t o `buffer' the impact of adult uses on surrounding properties. This would be ev en more effective if design controls were included to control th e appeara nce and image of adult businesses." (Appellee's App. at A21. ) While this report indicates that the city aimed the sign requirements at the outward appearanc e of the adults-only businesses, this regulation was a legitimate means to serve the city's overall s econdary-effects objective

-- min imizing the adverse effects these businesses have on surroundin g
areas. The city's secondary-effects justification is unrelated to th e content of any signs, and the sign regulation ha s 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; se e also Renton , 475 U.S. at 47 (stating that the re gulation must be "designed to serve a substantial governmental interest"). The question of whether the ordinance serves a significant governmental interest is easil y resolved, because, as a matter of settled law, regulations aimed a t minimizing the secondary effects of sexually oriented businesses serve a significant and substantial governmental interes t. 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. 5 0, 71 (1976) (plurality opinion) ("[T]he city's interest i n attemptin g to preserve the quality of life is one that must be accorde d high r espect."). Furthermore, this record, which includes studies o f several cities and evidence obtained at the hearings held by the City of Minneapolis, indicate s that the city had substantial evidence on which to base its conclusions about the secondary effects of adults-only businesses

. Se e Turner Broad. Sys., Inc. v. FCC , 512 U.S. 622, 665-66 (1994 ) (explaining that legislative predictive judgments are entitled to deferenc e in the First Amendment context of content-neutral regulation as long as th e concl usions are "reasonable inferences based on substantial evidence") ; Renton , 475 U.S. at 51-52 ("The First Amendment does not require a city, befo re enacting such an ordinance, to conduct new studies or produc e evidence independent of that already generated by other cities, so long as whatever evidence the city relies upon is reasonably believed to b e relevant to the problem that the city addresses."). The issue thus narrow s to whe ther the sign restrictions in subsection (g)(4) are themselve s narrowly tailored to serve the city's significant interest.

To be "n arrowly tailored" in this context, the regulation need no t be the least restrictive means of serving the city's content-neutra l 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 i s satisfied so long as the regulation promotes a substantial interest that
wou ld be achieved less effectively absent the regulation" and the mean s chosen does not "burden substantially more speech than is necessary t o furt her" the city's content-neutral interest. Ward , 491 U.S. at 79 9 (internal quotations omitted); see also Turner B road., 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 i t bears to the overall problem the [city] seeks to correct, not on the exten t to which it furthers the [city's] interests in a n individual case." Ward , 491 U.S. at 801. We will not strike down a time, place, or manne r regula tion merely because we can envision a less-restrictive or mor e 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-onl y busin esses in two ways. First, the city required the adults-onl y busine sses to operate within a specifically zoned area in downtow n Minneapolis, the area "best able to `buffer' the impact of adult uses on

surroun ding properties." (Appellee's App. at A21.) Second, the cit y at tempted to minimize the visual impact of the businesses on th e nei ghborhood by regulating the signs on the businesses' premises. Thi s second remedy stemmedfrom a belief that the locational limitations would "be even more effective if design controls were included to control th e appearance and image of adult businesses." ( Id. )

The design controls that Excalibur challenges impose some modes t restri ctions on the external appearance of adults-only businesses. Se e Minneapolis, Minn., C ode of Ordinances § 540.410(g)(4). Window areas may not be covered or made opaque, nor are signs permitted in the windows. Id

. Aone square-foot sign is allowed on the door, however. Id. Subsection (g)(4) works in conjunction with subsection (g)(1), which provides that al l exterior signs must be flat wall signs, and subsection (g)(2), which allow s
one square f oot 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 narrowl y tailor ed to further the city's significant interest in alleviating th e adve rse impact of sexually oriented businesses on their neighborhoods

. Having before it substantial evidence of the urban blight caused by th e mere presence of these businesses, the city coul d reasonably conclude that contro lling their outward appearance would lessen the effect they woul d have o n surrounding commercial and residential neighborhoods. The cit y 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 t o experiment with solut ions to admittedly serious problems"). The sign and window restrictions do not reach substantially m ore speech than necessary, for they are directed only at the signs and window coverings that woul d affect the outward appearance of the businesses and impact the surrounding

## Ato ral argument, the city explained that Excalibur (operated by Denni s 4 

## Buchanan) could comply with both the display regulations in subsection (g)(3) and the requirement to leave windows unobstructed by s igns or covers by placing the backside of abookshelf against a window. Dennis Buchanan, who operated Excalibur, wa s awar eof this means of compliance, because he was present when the city inspecto r 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 regulatio n is narrowly tailored when its focus on the evils sought to be eliminated does not "restrict[] a substantial quantity of s peech that does not create the same evils").
Excalibur challenges the reasonableness of the restrictions con tained in subsect ion (g)(4) on several grounds. Excalibur claims that it i s
unr easonable 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 requirement s that di splays of merchandise or entertainment not be visible from th e sidewalk. We disagr ee that the sign and window restrictions are unreasonable. The city could reason ably have concluded that leaving the windows free of signs and coverings would enhance the outward ap pearance of, and therefore minimiz e the adverse effects caused by, sexually oriented businesses

. Further, the city's regulations are not inconsistent, because Excalibu r could avoid the visibility of its merchandise th rough unobstructed windows by turning its display stands so the merchandise does not face th e windows. More importantly and to t he point, we believe Excalibur invites

4

us to strike down the city's means of furthering its objectives simpl y because the means may be imperfect. We decline this invitation. Although reasonable people mig ht quibble about the extent to which the regulations serve the city's sign ificant interests or about whether a better solution might be available, section 540.410(g)(4) is reasonably related to th e 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 r eviewed 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, 32 9 (198 8) (invalidating, as an impermissible content-based regulation, a n ord inance prohibiting speech that was critical of certain foreig n gover nments); Metromedia, Inc. v. City of San Diego , 453 U.S. 490, 51 5 (1981) (invalidating a sign ordinance banning certain signs by reference to th eir noncommercial content, but allowing signs expressing othe r noncommercial and commercial speech); Linmark As socs., Inc. v. Township of Willingboro , 431 U.S. 85, 93-97 (1977) (invalida ting a prohibition on "for sale" s igns as a content-based regulation, because the purpose of th e prohibition was to prevent people acting upon it s content); Gilleo v. City of La due , 986 F.2d 1180, 1182-83 (8th Cir. 1993), (invalidating a sig n
re gulationthat disfavored certain types of noncommercial speech an d reject ing a secondary-effects argument because the city made no showin g that th e prohibited signs caused any more problems than the permitte d signs) aff'd , 512 U.S. 43 (1994); Goward v. City of Minneapolis , 456 N.W.2 d 460, 465-66 (Minn. Ct. App. 1990) (invalidating an ordinance that banned signs expressing poli tical views but allowed "for rent" signs, "for sale" signs, and campaign-related signs). Here, however, we are looking at a
con tent-neutral governmental interest in limiting adverse secondar y effects. The sign and window requirements are reasonably related to the city's significant go vernmental 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-onl y bookstores were contentneutr al regulations narrowly tailored to serve significant governmenta l interests), cert. denied , M.E.F. Enters., Inc. v. City of Houston , 489 U.S

. 1052 (1989).

Final ly, we believe section 540.410 leaves open ample alternativ e avenues of communication. Excalibur is free to communicate information on signs outside of its building, within the modest restrictions imposed unde r 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 regardin g 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 tha t the parties had impliedly consented to include it, addressed the issue on the merits. SeeFed. R. Civ. P. 15(b) ("Whe n 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 wasreasonable because the city did not raise any proceduralobjections to Excalibur's overbreadth argument. Accordingly, th e overbreadth issue has been preserved for appeal.
13 provides for a sign on the door and allows flat signs on the wall of the buildin g, with only some reasonable limitations on their size. Thes e alternative avenues of communication provide ample opportunity fo r Excali bur to express itself. In addition, Excalibur may communicat e information inside th e store, limited only in that merchandise may not be visible from the sidewalk on the street.
Having fo und 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 op en 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 Ordi nances § 540.410(g)(3), which prohibits the display of merchandise or pictures in window areas or any o ther area that is visible from the sidewalk in front of the adults-only businesses. Excalibur claims this provision i s unconstitutionally overbroad. 5

The overbreadth doctrine applies in the narrow context of facia l challe nges to legislation based upon free-speech rights. This doctrin e represents a departure from

## 14

traditional standing rules, see Lujan v. Defenders of Wildlife , 504 U.S. 555, 560-61 (1992) (a rticulating the standing requirements), and allows a party like Excalibur to challenge an ordinance on the ground that th e ordinance might be applied unconstitutionally to third parties whose actua l 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 spee ch and the conclusion that "the possible harm to society from allowing unprotected speech to g o unpunished is outweig hed by the possibility that protected speech will be muted. " Id. Because the overbreadth doctrine has far-reachin g 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) (quo ting New York v. Ferber , 458 U.S. 747, 769 (1982)). To b e facially invalidated under this doctrine, the overbreadth of an ordinance affect ing both conduct and pure speech must be both "real" an d "substantial" in rela tion 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 th e ordinance itself will significantly compromise recognized First Amendment protections of parties not before the [c]ourt." Members of City Council

v. Taxp ayers for Vincent , 466 U.S. 789, 801 (1984). We will not strik e down a ordinance for overbreadth if its legitimate reach "dwarfs it s arguably impermissible applications." Ferber , 458 U.S. at 773.

Excalibur claims section 540.410(g)(3) is unconstitutionall y overbroad. Excalibur notes that some businesses classified as adults-only book stores may have merchandise for sale that is not pornographic o r sexually oriented. See Minneapolis, Minn., Code of Ordinances § 540.410(b ) (defin ing 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 [sexuall y oriented matters], or an establishment with a segment or section devoted to the sale or display of such material . . . ."). Excalibur furthe r points out that subsection (g)(3)

## 15

prohibits the display of any merchandise or pictures in a manner that woul d be visibl e from the sidewalk in front of the business. Thus, Excalibu r maintains, subsection (g)(3) is overbroad in tha t it conceivably prohibits the display of mercha ndise such as a Walt Disney video or the Holy Bible. Exc alibur asks us to strike down this provision for the sake of thir d par ties whose constitutionally protected speech may be chilled b y subsection (g)(3).
Based upon a narrow construction of the ordinance, the district court fou nd that § 540.410(g)(3) is not overbroad. "It has long been a fundame ntal tenet of First Amendment law that in determining a facia l challenge to a statute, if it be `readily susceptible' to a narrowin g constr uctionthat 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 ordinanc e would prohibit the visibility only of sexually oriented materials

. Excalibur contends the district court's construction is untenable, however , becaus e the Minnesota Court of Appeals has considered an overbreadt h challe nge 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 tha t the Minnesota Court of Appeals made no effort to construe the ordinance narrowl y. In Holmberg , the court addres sed Excalibur's overbreadth argument in the context of a crimina l appeal arising from the same facts as this action. The court described th e speech at issue as commercial and adult (sexually oriented) speech. Notin g the Supreme Court's statements that these categories of speech are entitle d to only limited First Amendment protection, the Minnesota Court of Appeals held that subsection (g)(3) was not overbroad. Id. at 70. While the cour t did not explicitly state it was construing subse ction (g)(3) narrowly, the
rea soning 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 ordinan ce prohibiting displays of materials outside the scope of these two

## 16

narrowcategories 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 o f
comm ercial speech, that is, speech that "does no more than propose a
comme rcial transaction," Virginia State Bd. of Pharmacy v. Virgini a Citize ns Consumer Council, Inc. , 425 U.S. 748, 762 (1976) (interna l quo tations omitted), the ordinance withstands Excalibur's overbreadt h challenge. Commercial speech, as "the offspring of economic self-interest , is a hardy breed of expression that is not particularly susceptible t o being crushed by over broad regulation." Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N.Y. , 447 U.S. 557, 56 4 n.6 (1980). "[B]ecause the profit motive is thought to be sufficiently compelling to enable such speech to withstand t he 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, commercia l speech does not require the protection of the overbreadth doctrine); Bates , 433 U.S. at 380-81 (explaining that "the justifi cation for the application of overb readth analysis applies weakly, if at all, in the ordinar y
commer cial context"); Van Bergen , 59 F.3d at 1549-50 (rejecting a n 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 str ike down subsection (g)(3) for the sake of third parties' commercia l speech. Ferber , 458 U.S. at 769.

What rema ins then is subsection (g)(3)'s restriction on the display of se xually oriented materials. As we already explained above i n addres sing Excalibur's challenge to the sign and window restrictions i n subsection (g)(4) of the ordinance, section

## 17

540.41 0 is a content-neutral regulation, enacted to further the city' s signif icant interest in limiting the urban blight caused by adults-onl y bus inesses. The restriction in subsection (g)(3) prohibiting th e visibi lityof sexually oriented speech through the windows of thes e establishments falls within the legitimate sweep of the ordinance. Thus, there is nothing overbroad about subsection (g)(3)'s regulation of display s of sexually oriented speech.

Because commercial speech does not warrant the protection of th e overbreadth doctrine and sexually oriented speech is legitimately regulate d by the or dinance, we will not strike down section 540.410(g)(3) a s unconstitutionally overbroad. Cf. Upper Midwest Booksellers Ass'n , 78 0 F.2d at 1391-94 (reje cting 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.