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HomeMy WebLinkAbout2005-06-28; City Council; 18187 v5 33-49; Exhibits to Staff Report Regulating Adult Businesses and Performers33 Page 1 Copr. ® West 1999 No Claim to Orig. U.S. Govt. Works 176 F.3d 1358 12 Fla. L. Weekly Fed. C 883 (Cite as: 176 F.3d 1358) LADY J. LINGERIE, INC., a Florida corporation; Buford B. Breland, et al., Plaintiffs-Appellants, v. CITY OF JACKSONVILLE, a Florida municipal corporation, Defendant-Appellee. Milton R. Howard, Emro Corporation, d.b.a. J.R.'s Lounge, Plaintiffs- Appellants, v. City of Jacksonville, a Florida municipal corporation, Defendant-Appellee. Nos. 98-2088, 98-2207. United States Court of Appeals, Eleventh Circuit. May 27, 1999. Lingerie shops that contained nude dancing brought action challenging constitutionality of ordinance that subjected adult businesses to various licensing, health and safety, and zoning regulations.. The United States District Court for the Middle District of Florida, Nos. 95-181-CIV-J- 20A, 95-434-Civ-J-20, Harvey Schlesinger, J., 973 F.Supp. 1428, upheld most of the provisions of the newly amended ordinance, and plaintiffs appealed. The Court of Appeals, Dubina, Circuit Judge, held that: (1) ordinance which specified the procedures for obtaining a zoning exception was unconstitutional as applied to adult entertainment establishments; (2) hours of operation rule was valid; (3) rule requiring that rooms in adult entertainment establishments be at least 1000 square feet in area did not violate First Amendment; and (4) provision requiring corporate applicants for adult business licenses to disclose the names of "principal stockholders" was violative of First Amendment. Affirmed in part, reversed in part, dismissed in part, and remanded. Barkett, Circuit Judge, concurs in part and dissents in part. [1] ZONING AND PLANNING k21 414k21 A zoning ordinance is valid if it is narrowly tailored to serve a substantial government interest, and it allows for reasonable alternative avenues of expression. [1] ZONING AND PLANNING k28 414k28 A zoning ordinance is valid if it is narrowly tailored to serve a substantial government interest, and it allows for reasonable alternative avenues of expression. [2] CONSTITUTIONAL LAW k90.1(4) 92k90.1(4) A licensing ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions; an ordinance that gives too much discretion to public officials is invalid. U.S.C.A. Const. Amend. 1. [3] LICENSES k7(l) 238k7(l) Licensing ordinances must require prompt decisions; an ordinance that permits public officials to effectively deny an application by sitting on it indefinitely is invalid. [4] ZONING AND PLANNING k28 414k28 Zoning ordinance which specified the procedures for obtaining a zoning exception was unconstitutional as applied to adult entertainment establishments since none of its nine criteria was precise and objective. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Land Use Code § 656.131(c)(l). [4] ZONING AND PLANNING k76 414k76 Zoning ordinance which specified the procedures for obtaining a zoning exception was unconstitutional as applied to adult entertainment establishments since none of its nine criteria was precise and objective. U.S.C.A. Const.Amend. Page 2 1; Jacksonville, Fla., Land Use Code § 656.131(c)(l). [5] ZONING AND PLANNING k76 414k76 Zoning ordinance which specified the procedures for obtaining a zoning exception was unconstitutional as applied to adult entertainment establishments since ordinance failed to require a deadline for decision and did not specifically provide for prompt judicial review of the zoning board's decisions. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Land Use Code § 656.131(c)(l). [6] CONSTITUTIONAL LAW k82(3) 92k82(3) A rule is narrowly tailored to serve a substantial government interest, and thus, not violative of First Amendment, as long as it is not substantially broader than necessary to achieve the government's interest. U.S.C.A. Const. Amend. 1. [7] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Hours of operation rule that required adult entertainment establishments to close from 2:00 a.m. until noon every day did not violate First Amendment; rule was narrowly tailored and left open reasonable alternative avenues of expression, permitting adult businesses to stay open fourteen hours a day, seven days a week. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Adult Ent. & Serv.Code § 150.422(a). [7] THEATERS AND SHOWS k3 376k3 Hours of operation rule that required adult entertainment establishments to close from 2:00 a.m. until noon every day did not violate First Amendment; rule was narrowly tailored and left open reasonable alternative avenues of expression, permitting adult businesses to stay open fourteen hours a day, seven days a week. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Adult Ent. & Serv.Code § 150.422(a). [8] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Rule requiring that rooms in adult entertainment establishments be at least 1,000 square feet in area did not violate First Amendment since regulation left open reasonable alternative avenues of expression in light of fact that at least 40% of the available sites in city were large enough to accommodate 1,000 square foot rooms. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Adult Ent. & Serv.Code § 150.301(g, h). [8] THEATERS AND SHOWS k3 376k3 Rule requiring that rooms in adult entertainment establishments be at least 1,000 square feet in area did not violate First Amendment since regulation left open reasonable alternative avenues of expression in light of fact that at least 40% of the available sites in city were large enough to accommodate 1,000 square foot rooms. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Adult Ent. & Serv.Code § 150.301(g, h). [9] THEATERS AND SHOWS k3 376k3 Operators of adult entertainment establishments lacked standing to challenge the validity of a provision that made an applicant ineligible for an adult entertainment license if the Sheriff had recently revoked a license for the same premises since none of them had been injured by the provision. Jacksonville, Fla., Adult Ent. & Serv.Code § 150.214. [10] CONSTITUTIONAL LAW k82(10) 92k82(10) Provision requiring corporate applicants for adult business licenses to disclose the names of "principal stockholders" was violative of First Amendment since there was no "substantial relation" between requiring disclosure of principal stockholders' names and a substantial government interest. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Adult Ent. & Serv.Code § [10] THEATERS AND SHOWS k3 376k3 Provision requiring corporate applicants for adult business licenses to disclose the names of "principal stockholders" was violative of First Amendment since there was no "substantial relation" between requiring disclosure of principal stockholders' names and a substantial government interest. U.S.C.A. Const.Amend. 1; Jacksonville, Fla., Adult Ent. & Serv.Code § [11] CONSTITUTIONAL LAW k270(l) 92k270(l) Due process prohibits the state from imprisoning a person without proof of some form of personal blameworthiness more than a responsible PageS relation. U.S.C.A. Const.Amend. 14. [12] CRIMINAL LAW k62 110k62 Criminal liability based on respondeat superior is acceptable if the defendant is in a "responsible relation" to the unlawful conduct or omission, but only if the penalty does not involve imprisonment; a defendant is in a "responsible relation" if he has the power to prevent violations from occurring. U.S.C.A. Const.Amend. 14. [13] CONSTITUTIONAL LAW k258(3.1) 92k258(3.1) Ordinance provision making owners of adult entertainment establishments criminally liable for acts committed by their servants, agents, and employees within scope of their authority was violative of due process at least to extent that it made imprisonment a possibility; however, city's authority to fine owners for violations committed by their employees was constitutionally valid since owner was only responsible for acts or omissions that he had the power to prevent. U.S.C.A. Const.Amend. 14; Jacksonville, Fla., Adult Ent. & Serv.Code § 150.510. [13] CONSTITUTIONAL LAW k303 92k303 Ordinance provision making owners of adult entertainment establishments criminally liable for acts committed by their servants, agents, and employees within scope of their authority was violative of due process at least to extent that it made imprisonment a possibility; however, city's authority to fine owners for violations committed by their employees was constitutionally valid since owner was only responsible for acts or omissions that he had the power to prevent. U.S.C.A. Const.Amend. 14; Jacksonville, Fla., Adult Ent. & Serv.Code § 150.510. [13] CRIMINAL LAW k62 110k62 Ordinance provision making owners of adult entertainment establishments criminally liable for acts committed by their servants, agents, and employees within scope of their authority was violative of due process at least to extent that it made imprisonment a possibility; however, city's authority to fine owners for violations committed by their employees was constitutionally valid since owner was only responsible for acts or omissions that he had the power to prevent. U.S.C.A. Const.Amend. 14; Jacksonville, Fla., Adult Ent. & Serv.Code § 150.510. [14] THEATERS AND SHOWS k3 376k3 Operators of adult entertainment establishments were not entitled to damages for the ten days they were closed after city implemented the initial licensing and zoning provisions which the district court struck down. [14] ZONING AND PLANNING k721 414k721 Operators of adult entertainment establishments were not entitled to damages for the ten days they were closed after city implemented the initial licensing and zoning provisions which the district court struck down. *1360 Gary S. Edinger, Gainesville, FL, for Plaintiffs-Appellants. Bruce Page, Jacksonville, FL, for Defendant-Appellee. Appeals from the United States District Court for the Middle District of Florida. Before DUBINA and BARKETT, Circuit Judges, and JONES [FN*], Senior Circuit Judge. FN* Honorable Nathaniel R. Jones, Senior U.S. Circuit Judge for the Sixth Circuit, sitting by designation. DUBINA, Circuit Judge: These consolidated cases require us to determine de novo the constitutionality of several provisions of a Jacksonville, Florida (the "City") ordinance that subjects adult businesses to various licensing, health and safety, and zoning regulations. The plaintiffs/appellants are "lingerie shops" that showcase nude dancing. The City classifies them as "adult entertainment establishments." Jacksonville, Fla. Adult Ent. & Serv.Code § 150.103(c) (reprinted in appendix). The district court *1361 initially agreed with some of the plaintiffs' objections to the ordinance and preliminarily enjoined enforcement of the licensing and zoning provisions. In response, the City amended its ordinance. The district court lifted its injunction and upheld most of the provisions of the new ordinance. See Lady J. Lingerie, Inc. v. City of Jacksonville, 973 F.Supp. 1428 (M.D.Fla.1997). The plaintiffs then perfected this appeal. I. Page 4 First we decide whether regulations requiring adult entertainment establishments to apply for zoning exceptions comply with the First Amendment. The City permits adult entertainment establishments to operate as of right in only one area, the CCBD (Commercial/Central Business District) zone. They may also operate in the CCG-2 (Commercial Community/General-2) zone, but only if the zoning board grants them a zoning exception. See Jacksonville, Fla. Land Use Code § 656.313(IV)(c)(7) (reprinted in appendix). In addition, the ordinance forbids adult businesses in either zone from locating within specified distances of residences, schools, churches, bars or other adult businesses. See Jacksonville, Fla. Land Use Code § 656.1103(a) (reprinted in appendix). The main objection the plaintiffs have to the ordinance is that there are only two sites in the CCBD zone that comply with the distance requirements. This means that practically all adult entertainment establishments must apply for a zoning exception to operate anywhere in the City. The City concedes this, but argues that there are 93-plus available sites in the CCG-2 zone, and that we should include those sites in the calculation. The combined 95 sites, it maintains, are enough. [1] We usually review zoning regulations in this area under the deferential "time, place, or manner" standards which the Supreme Court delineated in City of Renton v. Playtime, Theatres, Inc., 475 U.S. 41, 50-54, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also Int'l Eateries of America, Inc. v. Broward Co., Fla., 941 F.2d 1157, 1161-65 (llth Cir.1991). A zoning ordinance is valid if it is narrowly tailored to serve a substantial government interest, and it allows for reasonable alternative avenues of expression. See Int'l Eateries, 941 F.2d at 1161-65. Combating the harmful secondary effects of adult businesses, such as increased crime and neighborhood blight, is a substantial government interest. See City of Renton, 475 U.S. at 50-52, 106 S.Ct. 925; Barnes v. Glen Theatre, Inc., 501 U.S. 560, 583-84, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991) (Souter, J., concurring in the judgment). Most zoning ordinances easily meet these standards, but this ordinance does not. Even if the ordinance is narrowly tailored to serve a substantial government interest, it only allows for reasonable alternative avenues of expression if the 93-plus sites in the CCG-2 zone count. But to operate in the CCG-2 zone, an adult entertainment establishment must apply for an exception. This makes an exception the equivalent of a license. The City does have a separate licensing procedure for adult entertainment establishments (for which, incidentally, a zoning exception is a prerequisite), but the indispensability of the zoning exception persuades us to treat it like a license as well. [2] [3] As a form of prior restraint, licensing schemes commonly contain two defects: discretion and the opportunity for delay. An ordinance that gives public officials the power to decide whether to permit expressive activity must contain precise and objective criteria on which they must make their decisions; an ordinance that gives too much discretion to public officials is invalid. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). Licensing ordinances must also require prompt decisions. An ordinance that permits public officials to effectively deny an application by sitting on it indefinitely is also invalid. See Freedman v. Maryland, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649 *1362 (1965). Jacksonville's zoning exceptions process contains both defects. A. Discretion [4] Section 656.131 of the Jacksonville Land Use Code specifies the procedures for obtaining a zoning exception. See Jacksonville, Fla. Land Use Code § 656.131 (reprinted in appendix). The procedures apply to applicants of all sorts-not just adult businesses. Subsection (c)(l) contains the criteria the zoning board must consider in deciding whether to grant exceptions. These are run-of-the-mill zoning considerations: compatibility with contiguous uses, environmental impact, effect of pedestrian traffic, and so on. But they are just a floor; subsection (c)(2) permits the board to impose more restrictive requirements on applicants. The district court held that subsection (c)(2) is unconstitutional, and severed that provision from the rest of the ordinance. The City does not appeal that part of the judgment. Instead, the plaintiffs appeal the part of the judgment that upheld all of the (c)(l) criteria. The district court found that these factors (in the absence of Page 5 subsection (c)(2)) sufficiently limit the board's discretion. We disagree. The standard incantation of the Shuttlesworth principle is that statutes may not give public officials "unbridled" discretion to deny permission to engage in constitutionally protected expression. E.g., City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 757,108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (citing Shuttlesworth, 394 U.S. at 151, 89 S.Ct. 935). This implies that some measure of discretion is acceptable, but the cases show that virtually any amount of discretion beyond the merely ministerial is suspect. Standards must be precise and objective. See, e.g., Shuttlesworth, 394 U.S. at 150-51, 89 S.Ct. 935 ("narrow, objective, and definite"); Church of Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1547-48 (llth Cir.1993) ("definite and precise"); see also Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 649, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981) (upholding "first-come, first-served" method of allocating booths at the state fair); Church of Scientology, 2 F.3d at 1548 (labeling city clerk's duty to obtain information from applicants for solicitation licenses "purely ministerial"). Such is not the case with subsection (c)(l). None of the nine criteria is precise and objective. All of them — individually and collectively—empower the zoning board to covertly discriminate against adult entertainment establishments under the guise of general "compatibility" or "environmental" considerations. Jacksonville, Fla. Land Use Code § 656.131(c)(l)(ii) & (iii). Even the seemingly-innocuous fire safety provision is too broad. It does not say "there must be x number of doors per square foot"; it says that buildings must be "sufficiently accessible to permit entry onto the property by fire, police, rescue and other services." Id. § 656.131(c)(l)(viii) (emphasis added). This is neither precise nor objective. To be clear, the City may still use the (c)(l) criteria (and (c)(2), for that matter) for applicants who are not entitled to First Amendment protection. We only find troublesome the application of the otherwise-valid zoning criteria to adult businesses like the plaintiffs'. B. Delay [5] The opportunity for public officials to delay is another form of discretion. Recognizing this, the Supreme Court held in Freedman that a Maryland movie censorship law violated the First Amendment because it did not require prompt decisions. In a later case, FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion), a majority of the Court (the plurality plus three concurring Justices) applied Freedman to an adult business licensing scheme. See also id. at 238, 110 S.Ct. 596 (Brennan, J., concurring). Specifically, the Court agreed that ordinances must contain two procedural safeguards to ensure prompt decision- making: (1) licensing officials *1363 must be required to make prompt decisions; and (2) prompt judicial review must be available to correct erroneous denials. See id. at 228-30, 110 S.Ct. 596; Redner v. Dean, 29 F.3d 1495, 1500 (llth Cir.1994). The same safeguards are required here. First, the ordinance fails to put any real time limits on the zoning board. The board must hold a public hearing within 63 days after a business applies for an exception. See Jacksonville, Fla. Land Use Code § 656.131(c)(4). But nothing requires a decision within 63 days, or any other time period. The ordinance's failure to require a deadline for decision renders it unconstitutional. See Redner, 29 F.3d at 1501. The City concedes that the ordinance does not give the zoning board a deadline for decision, but it points out that the ordinance permits an applicant to begin operating its business 45 days after applying. See Jacksonville, Fla. Land Use Code § 656.1109 (reprinted in appendix). Once the board denies an application, the applicant must shut down. See id. The City argues that this ensures that a delay in the decision-making process will not keep the plaintiffs from opening. The defendant county in Redner made a similar defense of its ordinance. But that ordinance said that an applicant "may be permitted" to open; it didn't give applicants an absolute right to open. 29 F.3d at 1500-01. The Jacksonville ordinance, in contrast, says that an applicant "may begin operating [his] facility" 45 days after applying. Jacksonville, Fla. Land Use Code § 656.1109. This leaves no discretion in the City's hands to keep an adult business closed before denying its request for an exception. Does it matter that an applicant may begin Page 6 operating while the board is still considering its application? We think not. The ordinance only permits applicants to operate conditionally. Once the board denies an application for an exception, the applicant must close its doors. A conditional exception is no exception at all. A business can scarcely afford to operate in limbo, not knowing whether the City will shut it down the next day or not. Further, Freedman 's requirement that the status quo be maintained while public officials are deciding does not eliminate the requirement that the decision itself must be prompt. (And anyway, the status quo here is no zoning exception.) As for the second procedural safeguard, we note that this ordinance does not specifically provide for prompt judicial review of the zoning board's decisions. This may not be fatal. We have never squarely held that an explicit judicial review provision is essential. It may be enough that state law provides a general right to judicial review of administrative decisions. See Redner, 29 F.3d at 1501-02 & n. 9 (discussing Cent. Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (llth Cir.1985), and Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 676 (llth Cir.1984)). Still, the plaintiffs have not argued this issue on appeal, so we leave it undecided. To conclude, we want to emphasize that it is not difficult to draft an ordinance that addresses the harmful secondary effects of adult businesses without running afoul of the First Amendment. This ordinance, however, is unconstitutional because it channels nearly all adult entertainment establishments through the exceptions process. That process in turn gives the zoning board discretion to delay a decision indefinitely or to covertly deny applications for content-sensitive reasons. The plaintiffs may operate as of right in the CCBD and CCG-2 zones, as long as they comply with the distance limitations. We leave it to the district court on remand to decide whether they may also operate in other parts of the City. II. Next, the plaintiffs challenge two content-neutral provisions: first, an hours of operation rule that requires adult entertainment establishments to close from 2:00 a.m. until noon every day, and second, a *1364 rule requiring that rooms in adult entertainment establishments be at least 1000 square feet in area. These rules are content-neutral because the City enacted them not to suppress the expressive content of nude dancing, but to alleviate the harmful secondary effects with which adult businesses are commonly associated. First we must choose which test applies to these regulations. There are two possibilities. The first is the "time, place, or manner" test the Supreme Court used to evaluate the zoning regulations in City of Renton. The Court initially developed this test to review restrictions on expression taking place in public fora, but in City of Renton, it used this test to evaluate the validity of zoning regulations. See Barnes, 501 U.S. at 566, 111 S.Ct. 2456 (plurality opinion) (citing Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), and City of Renton, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29). City of Renton says that a "time, place, or manner" regulation must be narrowly tailored to serve a substantial government interest, and it must allow for reasonable alternative avenues of expression. See 475 U.S. at 50-54, 106 S.Ct. 925; Int'l Eateries, 941 F.2d at 1161-65. The alternative is the four-part test the Court laid out in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). This test has been used to evaluate regulations of expressive conduct—conduct that contains both "speech" and "nonspeech" elements. Id. at 376, 88 S.Ct. 1673. In Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (plurality opinion), both the plurality and Justice Souter, see id. at 581, 111 S.Ct. 2456 (Souter, J., concurring in the judgment), used this test to resolve a challenge by nude dancing establishments to a state law that banned public nudity. The test permits government regulation of expressive conduct "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." O'Brien, 391 U.S. at 377, 88 S.Ct. 1673. The Supreme Court has observed that the expressive conduct test of O'Brien and Barnes and the "time, place, or manner" test of City of Renton "embody much the same standards." Page? Barnes, 501 U.S. at 566, 111 S.Ct. 2456 (plurality opinion) (discussing Clark v. Community for Creative Non- Violence, 468 U.S. 288, 298 & n. 8, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984)). Still, which test we choose at least determines how we approach these questions, even if it doesn't affect the outcome. And for that matter, our choice of which test to use may occasionally be outcome determinative. In Ward, for instance, a "time, place, or manner" case, the Court said that the means chosen are narrowly tailored as long as they are "not substantially broader than necessary to achieve the government's interest." 491 U.S. at 800,109 S.Ct. 2746. Contrast this with O'Brien, in which the Court said that regulation of expressive conduct may be "no greater than is essential to the furtherance of [the government's] interest." 391 U.S. at 377, 88 S.Ct. 1673. The Court is surely right to suggest that these tests are generally the same. See Clark, 468 U.S. at 298, 104 S.Ct. 3065 (O'Brien 's four-part test, "in the last analysis, is little, if any, different from the standard applied to time, place, or manner restrictions"). But in the occasional case, there may be a difference between "not substantially broader" and "no greater than is essential." We need not decide whether this is that occasional case. We decide only one case at a time, and in this case, City of Renton guides our inquiry. The City of Renton test is appropriate because the rules we consider today- the hours of operation and 1000 square foot provisions-regulate "time" and "place" in the "time, place, or manner" sense. They affect, but do not directly regulate, the expressive conduct that is the basis of the plaintiffs' First *1365 Amendment challenges: nude dancing. The draft card burning statute in O'Brien and the indecency law in Barnes regulated the how of expressive conduct, as opposed to the where or the when, and they did so in a way that made the messages less potent. The hours of operation and 1000 square foot rules are different. [6] City of Renton requires that these rules be narrowly tailored to serve a substantial government interest, and that they allow for reasonable alternative avenues of expression. See 475 U.S. at 50-54, 106 S.Ct. 925; Int'l Eateries, 941 F.2d at 1161-65. A rule is narrowly tailored as long as it is "not substantially broader than necessary to achieve the government's interest." Ward, 491 U.S. at 800, 109 S.Ct. 2746. [7] Whether the hours of operation rule is valid is a close question. See Jacksonville, Fla. Adult Ent. & Serv.Code § 150.422(a) (reprinted in appendix). When we asked counsel for the City at oral argument why the City requires adult entertainment establishments to close from 10:00 a.m. until noon (the plaintiffs limit their argument to these hours), he could not come up with a reason. Nor can we. The question is whether we need a reason. The plaintiffs concede that ample evidence exists to justify requiring them to close during the late evening hours, so the hours of operation rule as a whole indisputably serves a substantial government interest. But the plaintiffs would have us look at the City's reasons for this rule on an hour by hour basis. There is no evidence, they submit, of a substantial government interest to justify requiring adult businesses to close from 10:00 a.m. until noon. This is a clever argument, but it confuses the requirement that a regulation serve a substantial government interest with the requirement that it be narrowly tailored to that end. We look at the provision as a whole to decide whether it serves a substantial government interest. Since it does, we ask whether it is narrowly tailored. We can imagine an hours of operation rule drawn so broadly as to not be narrowly tailored, but we decline to scrutinize the City's reasons for this rule as closely as the plaintiffs would have us do. If we were to side with the plaintiffs here, the next litigants would argue whether evidence of secondary effects at 6:15 in the morning justifies requiring adult businesses to close at 9:30, or whether evidence from 9:30 justifies requiring them to close at 10:45. That sort of line-drawing is inconsistent with a narrow tailoring requirement that only prohibits regulations that are "substantially broader than necessary." Ward, 491 U.S. at 800, 109 S.Ct. 2746; butcf. O'Brien, 391 U.S. at 377, 88 S.Ct. 1673 (regulation may be no greater than is essential to the government interest). The issue we face today is, of course, a closer question, but we conclude that the hours of operation rule is "not substantially broader than necessary." It is therefore narrowly tailored. Since the rule also leaves open reasonable alternative avenues of expression-adult businesses may stay open fourteen hours a day, seven days a week—it is valid. [8] We also conclude that the 1000 square foot PageS rule is valid. See Jacksonville, Fla. Adult Ent. & Serv.Code § 150.301(g) & (h) (reprinted in appendix). Ample evidence, from Jacksonville and elsewhere, supports the district court's finding that illegal and unhealthy activities take place in small rooms at adult entertainment establishments. One thousand square feet is not that large, so we can't say that this rule is substantially broader than necessary. Still, the plaintiffs argue that the 1000 square foot rule will force them to move. At least two of the plaintiffs can't comply in their present locations. One plaintiff's total floorspace is only 850 square feet, and another can't remodel because of structural constraints. As we see it, though, this doesn't matter. The test is whether the regulation leaves open reasonable alternative avenues of expression; it does not guarantee that the plaintiffs will *1366 be able to operate in their present locations. Without the zoning ordinance confining them, there are plenty of places the plaintiffs can move to comply with this rule. The plaintiffs' own expert testified that at least 40% of the available sites in Jacksonville are large enough to accommodate 1000 square foot rooms. There is no evidence to indicate that this figure is not also representative of the CCG-2 zone. Forty percent of 93-plus sites is enough. III. [9] The plaintiffs next challenge the validity of a provision that makes an applicant ineligible for an adult entertainment license if the Sheriff has recently revoked a license for the same premises. See Jacksonville, Fla. Adult Ent. & Serv.Code § 150.214 (reprinted in appendix). A site is ineligible until the second October 1 after the Sheriff revokes the license. Id. This site disability provision applies even to an applicant with a clean record who happens to buy or lease an affected site for use as an adult entertainment establishment. We conclude that none of the plaintiffs has standing to challenge this provision because none is injured. Not only has none of the plaintiffs applied for a license for an affected site, but there is no evidence that there are any affected sites in Jacksonville. If there were, the plaintiffs could at least say that the site disability provision limits their choice of where to move. But without evidence of affected sites, the plaintiffs can't even say that. So we dismiss this claim. IV. We now turn our attention to a provision that requires corporate applicants for adult business licenses to disclose the names of "principal stockholders." Jacksonville, Fla. Adult Ent. & Serv.Code § 150.205(a)(l)(iii) (reprinted in appendix). A "principal stockholder" is one who owns at least 10% of the stock of a corporation. Id. § 150.103(k) (reprinted in appendix). If no stockholder owns more than 10%, then all stockholders are "principal stockholders." Id. The plaintiffs argue that this unconstitutionally chills their right to free expression. The City responds that the plaintiffs do not have standing to challenge this provision, but that even if they do, the disclosure provision is valid. We are satisfied that at least one of the plaintiffs has standing to challenge this rule. The ordinance requires corporations to disclose principal stockholders' names, and Lady J. Lingerie is a corporation. [10] Compelled disclosure of the sort the Jacksonville ordinance entails threatens to stymie the exercise of First Amendment freedoms--the so-called "chilling effect"~so it must survive "exacting scrutiny." Buckley v. Valeo, 424 U.S. 1, 64, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976) (per curiam). Specifically, there must be a "relevant correlation" or a "substantial relation" between requiring disclosure of principal stockholders' names and a substantial government interest. Id. (citations omitted); see also NAACP v. Alabama, 357 U.S. 449, 463-64, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958) (government interest must be substantial). Here the government interest is substantial, but we do not see a "relevant correlation" or a "substantial relation" between the names of principal stockholders and the harmful secondary effects of adult entertainment establishments. The City's best argument is that principal stockholders tend to have a discernable influence on management, and that the City needs to keep an eye on who is running adult businesses in town. But stockholders, qua stockholders, do not run corporations; officers and directors do. The City can enforce its rules through them. See Acorn Inv., Inc. v. City of Seattle, 887 F.2d 219, 226 (9th Cir.1989); cf. East Brooks Books, Inc. v. City of Memphis, 48 F.3d 220, 226 (6th Page 9 Cir.1995) (invalidating an ordinance requiring disclosure of all stockholders' names); Genusa v. City of Peoria, 619 F.2d 1203, 1216-17 (7th Cir.1980) (invalidating *1367 an ordinance requiring all stockholders owning more than 10% of the stock of an applicant to submit various personal data to licensing officials). Accordingly, we conclude that this provision is unconstitutional. V. The final provision the plaintiffs challenge makes owners of adult entertainment establishments criminally liable for acts committed by their servants, agents and employees. See Jacksonville, Fla. Adult Ent. & Serv.Code § 150.510 (reprinted in appendix). Not all acts are imputable, only those acts done within a servant, agent or employee's scope of authority under the owner. See id. § 150.510(b). For their first five convictions, owners are punished by either a fine or 10 days in jail; for the sixth and subsequent offenses, the penalty is a fine and up to 90 days in jail. See id. § 150.510(c). Respondeat superior is a familiar concept in the context of "public welfare" crimes. These offenses are not crimes in the traditional sense; instead, they are a means of regulating activities that pose a special risk to the public health or safety. In United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975), for example, the defendant was the president of a national retail food corporation that got into trouble with the Food and Drug Administration for having rodent-infested warehouses. The Court upheld his conviction because, as president, he was in a "responsible relation" to the unlawful failure to maintain sanitary warehouses. Id. at 673-76, 95 S.Ct. 1903; see also United States v. Dotterweich, 320 U.S. 277, 285, 64 S.Ct. 134, 88 L.Ed. 48 (1943). [11] But significantly, Park's only punishment was a fine; incarceration is a different matter. Commentators distinguish public welfare offenses from offenses for which the penalty involves imprisonment, and argue that respondeat superior is inappropriate for these "true crimes." Francis Bowes Sayre, Criminal Responsibility for the Acts of Another, 43 Harv.L.Rev. 689, 717 (1930); see also Wayne R. LaFave & Austin W. Scott, Jr., Criminal Law 255 (2d ed.1986); Rollin M. Perkins & Ronald N. Boyce, Criminal Law, 913-14 (3d ed.1982). We agree and hold that due process prohibits the state from imprisoning a person without proof of some form of personal blameworthiness more than a "responsible relation." [12][13] The upshot is this: criminal liability based on respondeat superior is acceptable if the defendant is in a "responsible relation" to the unlawful conduct or omission, but only if the penalty does not involve imprisonment. A defendant is in a "responsible relation" if he has the power to prevent violations from occurring. See Park, 421 U.S. at 670-73, 95 S.Ct. 1903. The owner liability provision makes imprisonment a possibility— indeed it is a certainty for the sixth and subsequent offenses. It is therefore unconstitutional at least to that extent. We can salvage the fine, however, if the ordinance requires proof of a "responsible relation." Proof of a defendant's position alone is not enough, see id. at 658, 95 S.Ct. 1903, but this provision requires more. Only acts "done within the scope of [a] servant, agent or employee's scope of authority under the owner" are imputable. Jacksonville, Fla. Adult Ent. & Serv.Code § 150.510(b). We understand this to mean that an owner-defendant is only responsible for acts or omissions that he has the power to prevent. For this reason, we leave intact the City's authority to fine owners for violations committed by their employees. Personal blameworthiness can take two forms: unlawful act and unlawful intent. It is common to convict and imprison defendants for the acts of others—witness conspiracy law. But conspiracy still requires individualized proof of unlawful intent. The converse is strict liability, which requires proof of act but not intent. We decline to consider whether mens rea is an indispensable constitutional requirement for sending someone to prison. Cf. Staples *1368 v. United States, 511 U.S. 600,616,114 S.Ct. 1793,128L.Ed.2d 608 (1994) (penalty of imprisonment suggests that statute should not be construed as dispensing with mens rea ). Instead, we hold that due process at least requires individualized proof of intent or act. The owner liability provision requires neither, so the City may not use it to incarcerate owners. VI. Page 10 [14] The last issue the plaintiffs raise concerns their entitlement to damages for 10 days they were closed after the City implemented the initial licensing and zoning provisions which the district court struck down. This claim is meritless. The district court correctly held that the plaintiffs are not entitled to damages. For the foregoing reasons, we affirm the district court's judgment in part, reverse in part, dismiss in part, and remand this case for further proceedings consistent with this opinion. AFFIRMED in part, REVERSED in part, DISMISSED in part, and REMANDED. APPENDIX Jacksonville, Fla. Code, Title VI, Chapter 150 (Adult Entertainment and Services Code-Businesses, Trades and Occupations) 150.103 Definitions. In this chapter, unless the context otherwise requires: * * * (c) Adult entertainment establishment means a commercial establishment where the owner, or an employee or agent of the owner, suffers, permits, allows, encourages, or pays any person to engage in nude entertainment on the premises. Adult entertainment establishment also includes any establishment which contains or operates an adult entertainment booth. * * * (k) Principal stockholder means an individual, partnership or corporation that owns or controls, legally or beneficially, ten percent or more of a corporation's capital stock and includes the officers, directors and principal stockholders of a corporation that is a principal stockholder under this chapter; provided, that if no stockholder of a corporation owns or controls, legally or beneficially, at least ten percent of the capital stock, all stockholders shall be considered principal stockholders; and further provided, that if a corporation is registered with the Securities and Exchange Commission or pursuant to Chapter 517, Florida Statutes and its stock is for sale to the general public, it shall not be considered to have any principal stockholders. 150.205 License application; application fee. (a) A person desiring to engage in the business of operating an adult bookstore, adult motion picture theater, adult entertainment establishment, or escort service shall file with the Sheriff a sworn application on forms supplied by the Sheriff. The application shall contain at least the following information and be accompanied by the following documents: (1) If the applicant is: (i) An individual, his name, (ii) A partnership, the full name of the partnership and the name of the managing partner and the names of all other partners, whether general or limited, accompanied by the partnership instrument or a certified copy thereof. (iii) A corporation, the exact corporate name and state of incorporation and the name of the chief executive officer and the names of all other officers, directors and principal stockholders, accompanied by the articles of incorporation and all amendments thereto and the certificate of incorporation, or certified copies thereof. *1369* * * 150.214 Issuance of license for prior revoked license. When a license is revoked by the Sheriff, no license shall be issued for the location formerly covered by the revoked license. The period of time that a license shall be prohibited under this section shall be one year from the October 1 following revocation. 150.301 General requirements. In addition to the special requirements contained in this part, unless otherwise exempted, each adult bookstore, adult motion picture theater and adult entertainment establishment, shall meet each of the requirements of this section. (g) All premises shall have an entrance room or lobby, i.e., the room which is entered from the outside, and sanitary facilities as set forth in subsection (e). The entrance room or lobby may be as large or as small as the licensee chooses. (h) All other rooms in premises must either: (1) be not less than one thousand square feet in Page 11 area; or (2) be clearly marked in letters not less than two inches in height "No Customers or Patrons Allowed." 150.422 Hours of operation. (a) Adult entertainment facilities, adult bookstores and adult movie theaters shall not be open between the hours of 2:00 a.m. and noon. 150.510 Owner responsibility. (a) As used in part, owner shall mean and include the owner, and co-owner, partner, managing partner or chief executive officer. (b) All acts of any servant, agent or employee, paid or unpaid, of an owner shall be imputed to the owner and be deemed to be an act of the owner if done within the scope of such servant, agent or employee's scope of authority under the owner. (c) Any owner convicted of violating this chapter due to responsibility imposed pursuant to this section shall be upon conviction punished as follows: (1) for the first five offenses, by a fine of not less than two hundred fifty dollars nor more than five hundred dollars, or by imprisonment up to ten days in jail; (2) for the sixth and subsequent offenses, by a fine of not less than three hundred fifty dollars nor more than five hundred dollars and by imprisonment of not less than twenty nor more than ninety days. Jacksonville, Fla. Code, Section 656 (Zoning Code-Land Use) 656.131 Zoning exceptions * * * (c) With respect to acting upon applications for zoning exceptions: (1) The Commission shall issue an order to grant the exception only if it finds from a preponderance of the evidence of record presented that the proposed use meets, to the extent applicable, the following standards and criteria: (i) Will be consistent with the Comprehensive Plan, including any subsequent plan adopted by the Council pursuant thereto; (ii) Will be compatible with the existing contiguous uses or zoning and compatible with the general character of the area, considering population density, design, scale and orientation of structures to the area, property values, and existing similar uses or zoning; (iii) Will not have an environmental impact inconsistent with the health, safety and welfare of the community; *1370 (iv) Will not have a detrimental effect on vehicular or pedestrian traffic, or parking conditions, and will not result in the generation or creation of traffic inconsistent with the health, safety and welfare of the community; (v) Will not have a detrimental effect on the future development of contiguous properties or the general area, according to the Comprehensive Plan, including any subsequent amendment to the plan adopted by the Council; (vi) Will not result in the creation of objectionable or excessive noise, lights, vibrations, fumes, odors, dust or physical activities, taking into account existing uses or zoning in the vicinity; (vii) Will not overburden existing public services and facilities; (viii) Will be sufficiently accessible to permit entry onto the property by fire, police, rescue and other services; and (ix) Will be consistent with the definition of a zoning exception, and will meet the standards and criteria of the zoning classification in which such use is proposed to be located, and all other requirements for such particular use set forth elsewhere in the Zoning Code, or otherwise adopted by the Planning Commission. (2) In issuing its order to grant a zoning exception as provided in the Zoning Code, the Commission may place more restrictive requirements and conditions on applicants than are provided in the Zoning Code. A recommended order to grant a zoning exception shall not be granted unless and until the procedures in this chapter have been complied with. (3) The use for which a zoning exception has been granted by the Commission shall not be commenced by the owner, his agent or lessee until such time as the order is deemed to be final or a final order has been issued and all of the improvements stipulated in the grant of exception necessary for the orderly use of the property have been accomplished. Page 12 (4) Unless a longer time is mutually agreed upon by the applicant and the Commission in the particular case, a public hearing shall be held by the Commission to consider an application for zoning exception within not more than sixty-three days from the date of filing of the completed application. Notice of the public hearing shall be made as provided in s. 656.136 and a party shall be heard in person or by agent or attorney. (5) The violation of the terms of an exception, including conditions and safeguards which may be a part thereof, shall be deemed a violation of the Zoning Code and punishable as provided in the Zoning Code. 656.313 Community/General Commercial Category. IV. Commercial Community/Gene ral-2 (CCG-2) District. (c) Permissible uses by exception. * * * (7) Adult entertainment and service activities. 656.1101 Definitions. For the purposes of Part 11, the following definitions shall apply: (a) Adult entertainment or service facility means an escort service, adult bookstore, nude massage parlor, adult motion picture theater or adult entertainment establishment, as defined in Chapter 150, Ordinance Code. 656.1103 Distance limitations; exception. (a) No adult entertainment or service facility shall be located on a site unless the *1371 site equals or exceeds all of the distance limitations required by this subsection; (1) One thousand feet from the boundary of another adult entertainment or services facility. (2) Five hundred feet from the boundary of a residential district. (3) One thousand feet from an established school or church. (4) Five hundred feet from the boundary of any business which has an on premises consumption beverage license. (b) Notwithstanding any ordinance to the contrary, and notwithstanding any prior legal status of any adult entertainment or services facility, as of March 1, 1995, no adult entertainment or service facility shall be located on a site or parcel or in a structure which, in whole or in part, has been granted an on premises consumption beverage license or which is a bottle club. (c) Notwithstanding any ordinance to the contrary, and notwithstanding any prior legal status of any adult entertainment or services facility, as of March 1, 1995, no adult entertainment or services facility shall be located on a site or parcel or in a structure which, in whole or in part, is within five hundred feet of the boundary of any business which has an on-premises consumption beverage license. 656.1109 Conditional commencement without exception Where a person has applied for an exception in order to operate an adult entertainment [establishment] in a Community/Commercial General-2 zoning district, the applicant may begin operating the facility forty-five days after submitting a completed application. The conditional operation shall be permitted only until such time as the exception is granted or denied and judicial review is completed by a trial court of competent jurisdiction. This conditional grant to operate shall not permit the applicant to operate in violation of any other ordinance or law. In particular the applicant shall not operate in violation of any distance requirement set forth in this chapter. BARKETT, Circuit Judge, concurring- in part and dissenting in part: I agree with much of the majority's opinion in this case. However, I do not believe that Jacksonville's hours of operation provision can be upheld under the "time, place, and manner" analysis set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). [FN1] FN1. I would also note that the Renton test, not the analysis set forth in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) and applied by a plurality in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), is the Page 13 applicable standard. Unlike the ordinance at issue in Renton and the one before us in this case, Barnes dealt with a generally-applicable ban on public nudity, considering whether the ban on public nudity could be constitutionally applied to nude dancing in an adult entertainment establishment. Because we are considering a regulation that singles out adult entertainment establishments for regulation, rather than a generally- applicable statute that has an incidental effect on adult entertainment, Renton, not Barnes, provides the appropriate standard of review. We have previously recognized this distinction between Renton and Barnes. In International Eateries of America, Inc. v. Broward County, Fla., 941 F.2d 1157 (llth Cir.1991), we upheld a county ordinance prohibiting adult nightclubs within 500 feet of a residential district and within 1,000 feet of a church. We pointed out that Renton and the case we were considering involved ordinances that only applied to adult entertainment, while Barnes involved a ban on all public nudity. Accordingly, we concluded that, even after Barnes, "Renton still controls our analysis." Id. at 1161. I agree that the hours of operation provision is a content-neutral restriction and that it serves the substantial governmental interest of eliminating the secondary effects produced by the late-night operations of adult entertainment establishments. Under Renton, however, this provision violates the First Amendment because it is not narrowly tailored to serve this substantial government interest. The ordinance requires the closure of adult entertainment *1372 establishments during early morning hours when the city concedes there are no secondary effects. Renton 's narrow tailoring requirement, however, requires a city to draw its ordinances "to affect only that category of theaters shown to produce the unwanted secondary effects...." Renton, 475 U.S. at 52, 106 S.Ct. 925. By analogy, it seems to me that to justify closure, the city must limit its regulation to the hours where such secondary effects exist. Because the city has, without any justification at all, barred adult entertainment establishments from operating during the late morning hours with no indication of any secondary effects, the ordinance is "substantially broader than necessary," Ward v. Rock Against Racism, 491 U.S. 781, 800, 109 S.Ct. 2746,105 L.Ed.2d 661 (1989), and must be invalidated. [FN2] I believe that the majority's assertion that the city needs no reason to force adult entertainment establishments to close during the late morning hours flies in the face of Renton, which makes clear that where a city regulates to avoid secondary effects, its regulation must be drawn "to affect only that category of theaters shown to produce the unwanted secondary effects...." Renton, 475 U.S. at 52, 106 S.Ct. 925. FN2. Although the city could certainly mandate closure if it showed secondary effects during these late morning hours, it does not even purport to make such a showing and so this ordinance is distinguishable from the other ordinances which have been upheld against First Amendment challenges. See Ben Rich Trading, Inc. v. City of Vineland, 126 F.3d 155, 160-63 (3d Cir.1997) (upholding ban on operating adult entertainment establishments before 8:00 A.M. and after 10 P.M.); Mitchell v. Commission on Adult Entertainment Establishments of Delaware, 10 F.3d 123, 131-39 (3d Cir.1993) (upholding ban on operating adult entertainment establishments before 10:00 A.M. and after 10:00 P.M. and all day Sunday); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074, 1079- 80 (5th Cir.1986) (upholding ban on operating adult entertainment establishments before 10:00 A.M. and after midnight and all day Sunday); see also National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 741- 45 (1st Cir.1995) (upholding ban on operating entertainment business between 1:00 A.M. and 6:00 A.M.). The majority offers no authority for its position. I believe that the Fifth Circuit's opinion in Beckerman v. City of Tupelo, Miss., 664 F.2d 502 (5th Cir. Unit A Dec. 1981), although not binding precedent, is directly on point and should guide our analysis. In Beckerman, the court invalidated a city ordinance forbidding parades after 6 P.M., finding the ban substantially broader than necessary to effectuate the city's interest in nighttime security. The court explained that because the sun did not set in Tupelo until well after 6 P.M. for a good part of the year, the ordinance "unnecessarily restricted [individuals] in the time in which they may parade." Id. at 512. Although the court recognized "the difficulty Tupelo faces in pinpointing the exact time at which the nighttime Page 14 security problems arise," id., it found the city's use of a 6 P.M. cutoff overbroad since nighttime security could not justify banning parades during the summer when the sun does not set until approximately 8:30 P.M. Id. We face a similar situation here. Although a city may unquestionably regulate the hours of operation of an adult entertainment establishment to avoid the secondary effects associated with late night-hours, the city here, like the city in Beckerman, has done so in an overbroad manner by requiring closure during the late morning hours when no secondary effects have been shown to exist. The fact that the ordinance as a whole here serves to address the problem of late evening hours cannot save this ordinance any more than the fact that the ordinance in Beckerman, taken as a whole, addressed problems of nighttime security. END OF DOCUMENT 34 Pagel 973 F.2d 1255 61USLW2222 (Cite as: 973 F.2d 1255) United States Court of Appeals, Fifth Circuit. LAKELAND LOUNGE OF JACKSON, INC., Plaintiff-Appellee, v. CITY OF JACKSON, MISSISSIPPI, Defendant-Appellant. No. 92-7291. Oct. 5, 1992. Rehearing and Rehearing En Bane Denied Nov. 4, 1992. Adult business challenged city's amendment to zoning ordinance to restrict such businesses to areas zoned for light industrial use and, with use permit, to some of the central business district. The United States District Court for the Southern District of Mississippi at Jackson, William Henry Harbour, Jr., Chief Judge, 800 F.Supp. 455, declared ordinance unconstitutional and permanently enjoined its enforcement. City appealed. The Court of Appeals, Jerry E. Smith, Circuit Judge, held that: (1) city council properly considered secondary effects of adult businesses in amending zoning ordinance, and (2) city provided sufficient alternative avenues of expression for those businesses. Reversed and remanded. Politz, Chief Judge, dissented and filed opinion. West Headnotes [1] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases City zoning ordinance which did not ban adult businesses outright but merely limited areas of city hi which they might operate was properly analyzed as form of time, place, and manner regulation. U.S.C.A. Const. Amend. 1. [2] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases While cities may not regulate sexually oriented establishments out of mere distaste for message they communicate, local governments can restrict adult businesses in order to control the bad "secondary effects" such as crime, deterioration of retail trade, and decrease in property values that the establishments bring. U.S.C.A. Const.Amend. 1. [3] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [3] Zoning and Planning €=>167.1 414kl67.1 Most Cited Cases (Formerly 414kl67) City council properly considered secondary effects of adult businesses in amending zoning ordinance to restrict such businesses to areas zoned for light industrial use and, with use permit, to some of the central business district; drafters of ordinance relied upon studies of secondary effects, majority of council members received some information about those effects during open hearing of planning board, record did not suggest impermissible motive on part of council members, and preamble language took note of secondary effects. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=90.4(1) 92k90.4(l) Most Cited Cases [4] Zoning and Planning €=167.1 414kl67.1 Most Cited Cases (Formerly 414kl67) City provided sufficient alternative avenues of expression for adult businesses in amending zoning ordinance to restrict those businesses to areas zoned for light industrial use and, with use permit, to some of the central business district; substantial number of potential sites existed for those businesses, and there was no requirement that specific proportion of municipality be open for adult businesses or that certain number of sites be available. U.S.C.A. Const.Amend. 1. *1256 Craig E. Brasfield and Leyser Q. Morris, Deputy City Arty., Office of City Atty., Jackson, Miss., for defendant-appellant. Matthew M. Moore, Jackson, Miss., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of Mississippi. Before POLITZ, Chief Judge, SMITH and Page 2 BARKSDALE, Circuit Judges. JERRY E. SMITH, Circuit Judge: The City of Jackson, Mississippi ("Jackson"), amended its zoning ordinance to restrict adult businesses to areas zoned for light industrial use and, with a use permit, some of the central business district. The Lakeland Lounge of Jackson ("Lakeland"), which is such an establishment, challenged the ordinance, and the district court declared it unconstitutional because the members of the city council had not properly considered the secondary effects of sexually oriented businesses, so the ordinance was not content-neutral. Alternatively, the court found that the ordinance did not provide reasonable alternative avenues of communication. Finding no constitutional infirmity in what the city did, we reverse. I. In September 1991, a nightclub offering topless dancing opened in Jackson. The city acknowledges that it tried to close the club down for technical code violations, because *1257 of great public uproar, but failed. A few weeks later, another club opened. In September, the mayor had directed the zoning administrator to begin the process for the adoption of some measure to address the public concern. The city attorney's office and the planning department began to assemble materials concerning adult entertainment and to draft a new regulation. They received examples of other communities' zoning ordinances regulating adult businesses, studies about the effects of such establishments upon their communities, and legal opinions. Several public hearings were held to discuss the matter, including an open meeting of the planning board on January 21, 1992, to which five of the seven members of the city council were invited and five attended. Immediately following that meeting, and also on January 21, the city council met, and the ordinance was presented but held for final adoption a week later. In January 1992, Lakeland Lounge of Jackson was incorporated, for the purpose of operating a restaurant/lounge with topless dancing. It received beer licenses from the city and state and executed a lease for a property in an area zoned "general commercial." On January 28, 1992, the city council adopted an amendment to Jackson's zoning ordinance, seeking to disperse adult entertainment establishments. Such establishments were relegated to "light industrial" zoned areas, and also could be located in the central business district if they obtained use permits. Additionally, adult establishments could not be within 250 feet from each other or within 1,000 feet of any residentially zoned property, church, school, park, or playground. The provision also gave pre-existing establishments three years to comply. Lakeland filed a complaint in February 1992, seeking to have the ordinance declared unconstitutional and its enforcement enjoined. The district court denied Lakeland's motion for a temporary restraining order. After a bench trial, the court declared the ordinance unconstitutional and permanently enjoined its enforcement. 800 F.Supp. 455. Lakeland Lounge opened for business soon afterward. II. [1][2] The Jackson ordinance does not ban adult businesses outright but merely limits the areas of the city in which they may operate. It is thus properly analyzed as a form of time, place, and manner regulation. City of Renton v. Playtime Theatres, 475 U.S. 41,46,106 S.Ct. 925, 928, 89 L.Ed.2d29 (1986) (citing Young v. American Mini Theatres, 427 U.S. 50, 63 & n. 18, 96 S.Ct. 2440, 2449 & n. 18, 49 L.Ed.2d 310 (1976)). As such a regulation, it presumptively violates the First Amendment if it was "enacted for the purpose of restraining speech on the basis of its content," and it must be "designed to serve a substantial government interest" and may "not unreasonably limit alternative avenues of communication." Id. 475 U.S. at 47,106 S.Ct. at 928. Cities may not regulate sexually oriented establishments out of mere distaste for the message they communicate—that would be content-based infringement upon expression entitled to at least some protection under the First Amendment. See, e.g., Barnes v. Glen Theatre, 501 U.S. 560, —, 111 S.Ct. 2456, 2460, 115 L.Ed.2d 504 (1991) (recognizing that nude dancing is "expressive conduct within the outer perimeter of the First Amendment") (plurality opinion); see Renton, 475 U.S. at 46-49,106 S.Ct. at 928-30 (discussing requirement of content-neutrality). Local governments, however, can restrict adult businesses in order to control the bad "secondary effects"~such as crime, deterioration of their retail trade, and a decrease in property values—that the establishments bring. See id. at 46, 106 S.Ct. at 928. In determining whether the amended ordinance was actually content-neutral, the district court followed the analysis laid out in United States v. O'Brien, 391 U.S. 367,376-77, 88 S.Ct. 1673, 1678-79,20 L.Ed. 2d 672 (1968). The court stated that it needed to determine the predominant factor motivating the city council in PageS passing the ordinance; it concluded that the city had not *1258 shown that that factor was concern over secondary effects. The court first observed that the ordinance obviously, in its preamble, took note of the secondary effects. Second, it stated that the city had attempted to regulate, rather than prohibit, the adult business. Third, though, the court stated that the city did not show whether the existence of secondary effects had a basis in fact or, more importantly here, "whether that factual basis was considered by the [cjity in passing the ordinance." The court held that the city council had an insufficient factual predicate by which to base its ordinance upon secondary effects; therefore, the city had not shown that the ordinance was content-neutral. The district court based its analysis of the bases for the ordinance upon Renton, in which the Court stated that a city may establish its interest in a regulation by relying upon evidence "reasonably believed to be relevant to the problem that the city addresses." 475 U.S. at 51-52, 106 S.Ct. at 931. The Renton Court held that in enacting an adult business regulation, a city's justifications were not necessarily "conclusory and speculative" where the municipality based its opinion that such businesses had bad secondary effects upon studies of other communities. Id. at 50, 106 S.Ct. at 930. In the instant case, the district court held that the city had to show that it properly adopted the zoning ordinance. It stated that there is no testimony that the members of the city council ever looked at the studies about secondary effects or that they received any summary of those studies from their staff. Although one council member testified that she had received materials about such studies, they came from constituents; she did not testify that she had received copies of the material that the city staffs used or that she had provided her materials to her colleagues. Noting that it was a close question, the court concluded that the city council should have allowed at least some presentation summarizing the secondary effects upon which the council purported to rely and that the council had not produced any evidence that "it relied upon any formal studies to reach the conclusion that there would exist secondary effects if these businesses would be allowed to continue to operate." Concluding that the city had not shown that the amendment was content-neutral, the court held it unconstitutional. III. [3] We believe that the district court clearly erred and that the record shows that the city council had sufficient information before it to enact a permissible ordinance. First, the office of planning, city attorneys office, and the ordinance review committee (a subcommittee of the planning board) drafted the ordinance, and they unquestionably considered, and relied upon, the studies as to the secondary effects of sexually oriented business while they were drafting the amendment. Further, the council could properly place some reliance upon others to do research, as state law requires that the planning board make recommendations to the council regarding zoning amendments. We perceive no constitutional requirement that the council members personally physically review the studies of secondary effects; such a holding would fly in the face of legislative reality. [FN1] FN1. In light of Rent on's holding that a municipality may rely upon other cities' studies of secondary effect, 475 U.S. at 50, 106 S.Ct. at 930, and discussion in Barnes of the possibility that ordinances may be justified by their secondary effects, without any actual legislative finding, 501 U.S. at —, 111 S.Ct. at 2470 (opinion of Souter, J.), one might argue that legislative findings are no longer necessary, as the record as to secondary effects has already been made. We need not reach such a conclusion to decide this case, however. Second, although the city council never received a written report or summary of the studies, the city planning board held a public meeting at which the planning director and other city staff members and citizens discussed secondary effects and the work that had gone into the preparation of the proposed ordinance. As testimony and the official minutes of the meeting show, five of the seven members of the *1259 city council were present at that meeting; as the ordinance passed by a six-to-one vote, a majority of the council must have both voted for the ordinance and attended the meeting. Third, the language of the amendment indicates the council's concern with the secondary effects. The preamble states as follows: [T]he Planning Board and City Council of the City of Jackson, Mississippi, find that there is substantial evidence, including numerous studies, reports, and findings on the potential harmful effect of adult entertainment uses made by other cities, experts, city planners, etc., which document that such uses adversely affect property values, cause an increase in crime, encourage businesses to move elsewhere, and contribute to neighborhood blight. Page 4 It then asserts that it was "necessary, expedient and in the best interest" of the citizenry to regulate the operation and location of adult entertainment establishments for the purpose of stemming a potential increase in the criminal activities and disturbances of the peace and good order of the community, maintaining property values, preventing injuries to residential neighborhoods and commercial districts, and protecting and preserving the quality of life through effective land use planning. This language might not save a statute that was formulated without specific attention to secondary effects. Nevertheless, in context here, where (1) the drafters of the ordinance did rely upon studies of secondary effects, (2) a majority of the councilmembers did receive some information about the secondary effects during an open hearing of the planning board, and (3) nothing in the record otherwise suggests impermissible motives on the part of the councihnembers, the language of the preamble shows the city council's awareness of the studies upon which the planning staff relied when framing the ordinance and reflects that a reasonable legislature with constitutional motives could have enacted the ordinance. See SDJ, Inc. v. City of Houston, 837 F.2d 1268,1274 (5th Cir. 1988), cert, denied, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d579 (1989). [FN2] FN2. "[We] do not ask whether the regulator subjectively believed or was motivated by other concerns, but rather whether an objective lawmaker could have so concluded, supported by an actual basis for the conclusion. Legitimate purpose may be shown by reasonable inferences from specific testimony of individuals, local studies, or the experiences of other cities." See also 11126 Baltimore Blvd. v. Prince George's County, 886F.2d 1415,1420 (4th Cir. 1989) (intent as set out in legislation's preambles relevant to determination of content neutrality), vacated on other grounds, 496 U.S. 901, 110 S.Ct. 2580, 110L.Ed.2d261 (1990). IV. [4] Having decided that the city council had not properly considered the ordinance, the district court did not need to determine whether the zoning plan provided sufficient alternative opportunities for the regulated expression. It did so nevertheless, apparently foreseeing possible reversal on the first issue or seeking to guide the city council's future deliberations. The court stated that any regulation must provide reasonable alternative avenues of communication for the protected expression. Renton, 475 U.S. at 54, 106 S.Ct. at 932. Basing its analysis upon Renton and Woodall v. City of El Paso, 950 F.2d 255 (5th Cir.), modified, 959 F.2d 1305 (5th Cir.1992), cert, denied, 506 U.S. 908, 113 S.Ct. 304,121 L.Ed.2d 227 (1992), it asserted that a court must consider whether the regulation leaves available land that is physically, legally, and economically suited for adult entertainment businesses. The court found that most of the land zoned for adult businesses was actually unavailable; it then mentioned that four areas with eight to ten locations were available and suitable. Noting that Lakeland argued that, under Renton, large available acreage and a substantial number of sites are required in order reasonably to offer alternative avenues of expression, the court held that those sites did not provide *1260 Lakeland with sufficient alternative sites for the carrying on of its business; if other current and future adult entertainment establishments were factored into the calculus, the number of available sites would be reduced proportionately. We disagree. First, the district court stated that an unspecified number of the proposed locations were inadequate because they were "in remote areas of the city and are not in any area where other retail or commercial development is located. Clearly this type of area would not be reasonable from any macroeconomic analysis standpoint for any type of retail business, which would be the general classification of topless cabarets." This analysis is based upon an incorrect view of which legal standard to apply. The initial panel opinion in Woodall laid out a doctrine of economic impracticality, essentially stating that a site was impractical if no adult business possibly could expect to profit by opening there. 950 F.2d at 261 n. 5. That section of the opinion, which presumably was the source of the district court's "macroeconomic" language, has been withdrawn and thus has no precedential value. With that discussion deleted, Woodall merely states that "land cannot be found to be reasonably available if its physical or legal characteristics made it impossible for any adult business to locate there." 950 F.2d at 263. [FN3] The fact that these locations do not seem particularly desirable for economic reasons does not matter. As the Supreme Court has noted, "The inquiry for First Amendment purposes is not concerned with economic impact." Renton, 475 S.Ct. at 54, 106 S.Ct. at 932, (quoting Young v. American Mini Theatres, 427 U.S. 50, 78, 96 S.Ct. 2440, 2456, 49 L.Ed.2d 310 (1976) (Powell, J., concurring)). As we have noted, "alternative sites need not be commercially viable." SDJ, 837 F.2d at 1276-77 (citing Renton ). See also Page5 D.G. Restaurant Corp. v. City of Myrtle Beach, 953 F.2d 140, 147 (4th Cir.1991) (city not obliged to provide commercially desirable land). FN3. See also the modified Woodall opinion, 959F.2datl306. Nothing in the instant record indicates that all or even most of the locations are inaccessible, unsafe, or without utilities or infrastructure or that legal obstacles exist to their use. See Woodall, 950 F.2d at 261-62; Basiardanesv. CityofGalveston, 682F.2d 1203,1214 (5th Cir.1982). Thus, although the record does not permit us to say with precision how many additional sites exist, a substantial number of potential sites do. Moreover, there is no requirement in Renton, Woodall, or elsewhere that a specific proportion of a municipality be open for adult businesses or that a certain number of sites be available. According to the record, two adult entertainment clubs and three adult bookstores were operating in Jackson at the time of the trial; so including Lakeland Lounge, there are six such establishments in the city. As a matter of arithmetic, even without the sites the district court stated were remote, there are more "reasonable" sites available than businesses with demands for them, even if the five previously existing businesses decided to move into the zoned areas (which they need not do for three years under the amortization provisions of the ordinance). Given the limited demand for sites for sexually oriented businesses, this ordinance does not reduce the number of establishments that can open in Jackson, so it does not limit expression. [FN4] When the "remote" areas of the city are included, it is plain that Lakeland has many alternative locations for its business. FN4. See Schad v. Borough ofMt. Ephraim, 452 U.S. 61, 71, 101 S.Ct, 2176, 2183, 68 L.Ed.2d 671 (1981) (ordinance banning nude dancing in American Mini Theatres distinguished, because it "did not affect the number of adult movie theaters that could operate in the city)". V. We thus find that the Jackson City Council properly considered the secondary effects of adult business and provided sufficient alternative avenues of expression for them. The judgment of the district court is *1261 REVERSED, and this matter is REMANDED for further proceedings as appropriate. POLITZ, Chief Judge, dissenting: I must respectfully dissent because I find that the ordinance of the City of Jackson, Mississippi violates the first amendment. The ordinance defines its regulatory scope on the basis of "adult" content and is therefore not content- neutral; it may only be accorded the deferential review given content-neutral regulations if it meets the requirements of a time, place, and manner restriction. [FN5] In my view, these requirements are not met. The Jackson City Council has not demonstrated that its predominant intent was to control negative secondary effects of sexually oriented businesses. In addition, even assuming the ordinance to be a content-neutral restraint of free speech, it fails because alternative channels of communication of the protected speech at issue here are unavailable. FN5. See City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); see also SDJ, Inc. v. City of Houston, 837 F.2d 1268,1273 (5th Cir.1988) ("The [Renton] Court submitted the Renton ordinance to the analysis reserved for content-neutral restraints, although the ordinance marked businesses by the content of their product."); Note, The Content Distinction in Free Speech Analysis after Renton, 102 Harv.L.Rev. 1904, 1907-08 (1989) (explaining that Renton applies a "content-neutral" standard of review to "content- based time, place, and manner regulations"). The Supreme Court in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991), analyzed a public exposure statute pursuant to the four-part test enunciated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). The O'Brien test applies to statutes without content-based references; it includes an analysis of the extent to which the governmental interest is related to the suppression of free expression. The Barnes decision did not suggest an expansion of Renton's looser scrutiny for content-based statutes; the decision even states that the time, place, and manner test was originally developed for expression taking place in a "public forum" and that Renton was "at least one occasion" in which the Court deviated from this application. 501 U.S. 560, 111 S.Ct. at 2460. Page 6 The ordinance does not qualify for the deferential review accorded content- neutral restraints because it was not "designed to combat the undesirable secondary effects" of the regulated business. [FN6] Unless the predominant concern of the regulators was to prevent these alleged secondary effects, we should not base our review of the ordinance on the presumption that it is a time, place, and manner restriction unrelated to the suppression of free expression. [FN7] To assess the regulators' predominant concern, "we intrude into the regulatory decision process to the extent that we insist upon objective evidence of purpose-a study or findings." [FN8] Jackson had the burden of establishing that evidence before the city council entitled the council to reach its conclusion. [FN9] The test does not inquire into the council members' subjective beliefs but, rather, searches the legislative history of the ordinance for "an actual basis" upon which an objective regulator could assess the purported secondary effects. [FN10] Although the City need not conduct its own independent study and is certainly entitled to rely upon empirical data from other municipalities, the regulators must have such studies—and not just the ordinance itself—before them. [FN11] FN6. CityofRenton, 475 U.S. at 49,106 S.Ct. at 929. FN7. Id. at 47, 48, 106 S.Ct. at 928, 929; SDJ, Inc., 837 F.2d at 1273 (quoting City of Renton's reference to the legislatures' "predominant concern"). FN8. SDJ, Inc., 837 F.2d at 1274. FN9. City ofRenton, 475 U.S. at 51-52, 106 S.Ct. at 931; SDJ, Inc., 837 F.2d at 1274. FN10. SDJ, Inc., 837 F.2d at 1274. FN11. Id. ("[W]e are persuaded that the City Council considered those studies themselves and not merely the ordinances for which the studies provided support." (emphasis added)). Uncontroverted testimony before the district court reveals that the Jackson Planning Board submitted no written materials to the city council. The ordinance preamble declares that the City of Jackson intended to regulate secondary effects, yet the city council members did not see—much less rely upon—the data which purportedly engendered their alleged "predominant" concerns. According to the record, four of the seven city council members who *1262 voted for the ordinance did attend a public meeting of the Jackson Planning Board, but the minutes of that meeting and the testimony before the trial judge did not reflect that any empirical study data were orally recited or meaningfully discussed. [FN12] One city council member, Margaret C. Barrett, did receive some materials regarding secondary effects from her constituents, but she did not circulate this data to her colleagues on the council. Because the council did not examine even an extract of the studies upon which its predominant concerns purportedly rested, I find no basis to justify reviewing this ordinance as a content-neutral regulation. The City used the pretext of technical code violations to attempt to close Jackson's first adult entertainment club. It would appear that the ordinance's preamble is but another such. FN12. The Minutes of the January 21, 1992 Jackson City Planning Board Public Hearing reflect that Quintus Greene, Director of the Office of Planning, made the following comments: Mr. Greene gave a brief summary of the research and intent that have gone into drafting the proposed adult entertainment amendments to the Zoning Ordinance. He mentioned that adult entertainment establishments would be permitted by right in 1-1 (Light) Industrial Districts and would be permitted by Use Permit in the C-4 Central Business District. He noted these regulations would prohibit such uses within 1000 feet of any residentially zoned property, church, school, park or playground. Also, no adult entertainment establishment could be located within 250 feet of any other such use. He displayed a map of the City which depicts all of the 1-1 Districts and the C-4 District, where such uses could be allowed. The district court very accurately described the testimony evidence regarding the hearing: The only testimony that the Court has concerning what went on at the hearing came from the testimony of Quintus Greene of the City Planning and Zoning staff, and Mrs. Barrett, the councilwoman. This testimony showed no consideration of the materials sent by the American Planners Association nor any other type of material that either the City Planning and Zoning people had or that Mrs. Barrett herself had.... Page? There is no testimony whatsoever that the City Council members themselves ever looked at the studies relied upon by its staff, or received any written summary of those studies, or received any oral summary of those studies. (Emphasis added.) The majority would ignore these factual findings which wear the buckler and shield of Fed.R.Civ.P. 52(a). The facts of this case stand in stark contrast to those reviewed by the SDJ, Inc. court, wherein a specially compiled report of community effects was filed with and adopted by the city council. [FN13] Similarly, the Renton Court quotes the material before the Renton City Council which described secondary effects of adult entertainment and study results. [FN14] Indeed, the Basiardanes v: City of Galveston [FN15] court objected that "there [was] no evidence in the record that the Galveston City Council passed [the ordinance] after careful consideration or study of the effects of adult theaters on urban life." [FN16] City argued that 21 general areas were available; it presented testimony regarding 32 specific sites. By contrast, the SDJ, Inc. court, which admittedly analyzed an ordinance in the much larger city of Houston, nonetheless reviewed stronger evidence. One expert responsible for analyzing only 20 percent of the City specified 40 available sites in this portion alone. Other evidence demonstrated that at least 100 and, perhaps, up to tens of thousands of alternative sites existed. [FN20] Accordingly, accepting Jackson's argument at full face value, its list of the available sites is less than impressive. FN17. City of Renton, 475 U.S. at 50, 106 S.Ct. at 930; SDJ, Inc., 837 F.2d at 1273. FN18. The City had originally argued that a ceiling of 1,043 acres were available but retreated from this position when faced with evidence regarding a restrictive covenant on 163 acres. FN13. See SDJ, Inc., 837 F.2d at 1272. FN14. See City of Renton, 475 U.S. at 51, 106 S.Ct at 931. FN15. 682 F.2d 1203 (5th Or. 1982). FN16. Basiardanes, 682 F.2d at 1215. In addition, I am not persuaded that the Jackson ordinance passes constitutional muster even as a time, place, and manner restriction. Even a content-neutral ordinance regulating protected speech must be narrowly tailored to serve a substantial governmental interest and must allow for reasonable alternative avenues of communication. [FN 17] The Jackson ordinance bans "[a]dult arcades, adult bookstores, adult cabarets, adult entertainment establishments, adult motels, and adult motion picture theaters" from all areas except those zoned as light industrial. In the light industrial zones such establishments may not be located within 250 feet of each other or 1,000 feet from any residentially zoned property, church, school, park, or playground. By the City's own account to the district court, only 879 acres of Jackson's approximate 70,400 acres are available for adult entertainment uses. [FN 18] This is approximately 1.2 percent of the land mass of the *1263 City, as compared with the more than 5 percent which was available in Renton. [FN19] In the district court the FN19. City of Renton, 475 U.S. at 53, 106 S.Ct. at 932. FN20. SDJ, Inc., 837 F.2d at 1277. From my review of the record I cannot, however, accept the City's list of sites. I cannot because I cannot justify dismissing the district court's factual findings in this case. The district court found only four available areas containing eight to ten prospective sites. This finding is manifestly not clearly erroneous. Although the court makes one reference to macroeconomics, which was discussed in the vacated portion of Woodall v. City of El Paso, [FN21] the trial court also discounted proposed sites due to physical impossibilities. The district court does not individually apply each reason for unavailability to each site rejected. But the district court's detailed discussion of the available locales nonetheless reveals that it did not place upon the City a duty of providing "sites at bargain prices." [FN22] For example, the trial court considered warehouses as available because they could be converted to lounges. It also considered a lot next to a slaughterhouse an available adult entertainment site. Referencing the Renton economic rule, the trial court specifically discounted Lakeland's arguments that lack of parking rendered certain business district sites inadequate. Page8 FN21. 950 F.2d 255 (5th Cir.), modified, 959 F.2d 1305 (5th Cir. 1992). FN22. City of Renton, 475 U.S. at 54, 106 S.Ct. at 932. At the very least, I must conclude that this case should be remanded for consideration pursuant to our modifications of Woodall. The record clearly shows that physical impossibility, rather than the Woodall macroeconomics theory, occasioned a discounting of a majority of the City's proposed 879 acres. The district court described one 300-acre site which lacked physical access as "swampland." Another large site in the northwest sector of the City was described as a floodplain. The testimony of Lakeland's expert also revealed that other alleged sites were adjacent to high voltage power lines or within 1,000 feet of a prohibited use. I therefore must disagree with the majority's conclusion that "nothing in the instant record indicates that all or even most of the locations are inaccessible, unsafe, or without utilities or infrastructure or that legal obstacles exist to their use." I respectfully dissent. 973 F.2d 1255, 61 USLW 2222 END OF DOCUMENT 35 Page 1 Copr. © West 2000 No Claim to Orig. U.S. Govt. Works 217 F.3d 1050 00 Cal. Daily Op. Serv. 5155, 2000 Daily Journal D.A.R. 6894 (Cite as: 217 F.3d 1050) United States Court of Appeals, Ninth Circuit. Seung Chun LIM; Fluffy, Inc., a California Corporation; 5436 Santa Monica Boulevard, Inc., a California Corporation, Plaintiffs-Appellants, v. CITY OF LONG BEACH, a municipal corporation, Defendant-Appellee. No. 98-55915. Argued and Submitted Feb. 8, 2000 Filed June 27, 2000 Owners and operators of adult book and video stores and mini-theater brought action against city challenging constitutionality of ordinance regulating location of adult entertainment establishments. The United States District Court for the Central District of California, Richard A. Paez, J., 12 F.Supp.2d 1050, upheld the ordinance, and plaintiffs appealed. The Court of Appeals, Michael Daly Hawkins, Circuit Judge, held that: (1) burden of proving that ordinance allowed for alternative avenues of communication rested on the city; (2) the district court did not err in considering property which may be available to commercial enterprises other than adult entertainment businesses, even though this included sites with restrictive leases banning adult entertainment establishments; (3) the district court properly considered certain currently occupied property as part of the actual business real estate market; (4) plaintiffs were entitled to develop and present evidence that properties proffered by city as potentially available to adult businesses would not reasonably become available; and (5) city did not violate plaintiffs' equal protection rights by forcing existing adult businesses to relocate under amended ordinance while allowing non-adult non-conforming businesses to remain in place. Affirmed in part, reversed in part, and remanded. West Headnotes [1] Constitutional Law k90.4(l) 92k90.4(l) Where an ordinance does not ban adult businesses outright, but limits the areas of a city in which they may operate, it is considered a content-neutral time, place, and manner restriction, and the ordinance is constitutional so long as it is designed to serve substantial governmental interests and allows for alternative avenues of communication. U.S.C.A. Const. Amend. 1. [2] Federal Courts k776 170Bk776 [2] Federal Courts kSSO.l 170Bk850.1 The district court's findings of fact are reviewed for clear error, while its conclusions of law are reviewed de novo. [3] Federal Courts k776 170Bk776 Mixed questions of law and fact are reviewed de novo, and such a question exists when there is no dispute as to the facts, the rule of law is undisputed, and the question is whether the facts satisfy the legal rule. [4] Constitutional Law k90.4(l) 92k90.4(l) Burden of proving that ordinance which limits the areas of a city in which adult businesses may operate allows for alternative avenues of communication rests on the city. U.S.C.A. Const. Amend. 1. [5] Constitutional Law k48(4.1) 92k48(4.1) The party seeking to restrict protected speech has the burden of justifying that restriction. Page 2 U.S.C.A. Const.Amend. 1. [6] Constitutional Law k48(4.1) 92k48(4.1) In general, where a plaintiff claims suppression of speech under the First Amendment, the plaintiff bears the initial burden of proving that speech was restricted by the governmental action in question, and the burden then shifts to the defendant governmental entity to prove that the restriction in question is constitutional. U.S.C.A. Const.Amend. 1. [7] Constitutional Law k90.4(l) 92k90.4(l) A city allows for alternative avenues of communication if its zoning ordinance restricting the locations of adult businesses offers adult businesses a reasonable opportunity to open and operate within the city, and a two-step approach is applied to determining whether this condition is satisfied: (1) relocation sites provided to adult businesses must be considered part of an actual business real estate market for commercial enterprises generally; and (2) after excluding those sites that may not properly be considered part of the relevant real estate market, there are an adequate number of relocation sites. U.S.C.A. Const.Amend. 1. [8] Constitutional Law k90.4(l) 92k90.4(l) In determining whether zoning ordinance which limits the areas of a city in which adult businesses may operate allows for alternative avenues of communication, considerations applicable to determination of reasonableness of alternative sites are: (1) a relocation site is not part of the market if it is unreasonable to believe that it would ever become available to any commercial enterprise; (2) a relocation site in a manufacturing or industrial zone that is reasonably accessible to the general public may be part of the market; (3) a site in a manufacturing zone that has proper infrastructure may be included in the market; (4) a site must be reasonable for some generic commercial enterprise; (5) a site that is commercially zoned is part of the relevant market; and (6) a site must satisfy the conditions of the ordinance in question. U.S.C.A. Const.Amend. 1. 92k90.4(3) [9] Zoning and Planning k76 414k76 In determining whether zoning ordinance which limited the areas of a city in which adult businesses may operate allowed for alternative avenues of communication, the district court did not err in considering property which may be available to commercial enterprises other than adult entertainment businesses to be part of the actual business real estate market, even though this included sites with restrictive leases banning adult entertainment establishments. U.S.C.A. Const.Amend. 1. [10] Constitutional Law k90.4(l) 92k90.4(l) [10] Zoning and Planning k76 414k76 In determining whether zoning ordinance which limited the areas of a city in which adult businesses may operate allowed for alternative avenues of communication, the district court properly considered certain currently occupied property as part of the actual business real estate market; where was no reason to conclude that city acted in bad faith or unreasonably in identifying potentially available properties, the burden of showing that particular sites would not reasonably become available rested with the plaintiffs. U.S.C.A. Const.Amend. 1. [11] Constitutional Law k90.4(l) 92k90.4(l) In determining whether zoning ordinance which limits the areas of a city in which adult businesses may operate allows for alternative avenues of communication, a city cannot merely point to a random -assortment of properties and simply assert that they are reasonably available to adult businesses; the city's duty to demonstrate the availability of properties is defined, at a bare minimum, by reasonableness and good faith, and if a plaintiff can show that a city's attempt is not in fact in good faith or reasonable, by, for example, showing that a representative sample of properties are on their face unavailable, then the city will be required to put forth more detailed evidence. U.S.C.A. Const.Amend. 1. [9] Constitutional Law k90.4(3)[12] Constitutional Law k90.4(l) PageS 92k90.4(l) In determining whether zoning ordinance which limits the areas of a city in which adult businesses may operate allows for alternative avenues of communication, property must have a genuine possibility of coming available for commercial use to be considered part of the relevant commercial real estate market. U.S.C.A. Const. Amend. 1. [13] Constitutional Law k90.4(l) 92k90.4(l) [13] Zoning and Planning k76 414R76 In challenge to constitutionality of zoning ordinance limiting the locations for adult businesses, plaintiffs were entitled to develop and present evidence that properties proffered by city as potentially available to adult businesses, and thus allowing alternative avenues of communication, would not reasonably become available because, for example, they were encumbered by long-term leases. U.S.C.A. Const. Amend. 1. [14] Constitutional Law k228.2 92k228.2 [14] Zoning and Planning k76 414k76 City did not violate the equal protection rights of proprietors of adult businesses by forcing existing adult businesses to relocate under amended zoning ordinance restricting the locations for adult businesses while allowing non-adult non-conforming businesses to remain in place, or by forcing adult businesses to comply with new parking regulations while non-adult businesses were exempt, as there was evidence that city had a rational reason for enforcing its adult business ordinance and not enforcing other zoning ordinances, in light of its interest in curbing the secondary effects of adult businesses. U.S.C.A. Const.Amend. 14. [15] Constitutional Law k213.1(2) 92k213.1(2) Where no suspect classification is under scrutiny, the Equal Protection Clause requires that a government's action be rationally related to a permissible government objective. U.S.C.A. Const.Amend. 14. *1052 Roger Jon Diamond, Santa Monica, California, for the plaintiffs- appellants. Daniel S. Murphy, City of Long Beach, Long Beach, California, for the defendant-appellee. John Weston (argued) and G. Randall Garrou, Weston, Garrou & DeWitt, Los Angeles, California, for amici curiae Tollis, Inc. and Eyeful, Inc. Deborah J. Fox, Fox & Sohagi, Los Angeles, California, for amici 108 California Cities and California State Association of Counties. Appeal from the United States District Court for the Central District of California Richard A. Paez, District Judge, Presiding. D.C. No. CV-96-02742- RAP. Before: BOOCHEVER, HAWKINS, and THOMAS, Circuit Judges. MICHAEL DALY HAWKINS, Circuit Judge: The owners of three adult book and video stores and an adult mini- theater (collectively "Plaintiffs") sued the City of *1053 Long Beach ("Long Beach") challenging the constitutionality of a Long Beach zoning ordinance restricting the locations in which adult businesses can operate. The district court found that the ordinance did not violate the Plaintiffs' rights under the First Amendment or the Equal Protection Clause. We remand to allow Plaintiffs to develop and present evidence concerning the availability of alternative commercial locations in the Long Beach real-estate market. BACKGROUND In 1994, Long Beach amended its existing adult entertainment zoning ordinance [FN1] by modifying the locational restrictions on adult businesses. The new ordinance provided that an adult entertainment business [FN2] may not be located within (1) 300 feet of a residential zoning district or a residential planned development district; (2) 1,000 feet of any public or private school; (3) 600 feet of any city park; (4) 500 feet of a church; or (5) 1,000 feet of any other adult entertainment business. See Long Beach Municipal Code ("LBMC") § 21.45.110(A)(1). The ordinance further provided that an adult entertainment business may not be located in Page 4 certain specific areas of Long Beach. See LBMC § 21.45.110(A)(l)(f). The ordinance established an eighteen- month amortization period for existing adult businesses, LBMC § 21.45.300, but otherwise equally treated existing and new adult businesses. FN1. Long Beach began zoning adult businesses in 1977. See Lim v. City of Long Beach, 12 F.Supp.2d 1050, 1053-54 (C.D.Cal. 1998). FN2. The ordinance also defines adult entertainment businesses. See Lim, 12 F.Supp.2d at 1054. There is no question here that the Plaintiffs qualify as adult businesses under the ordinance. Plaintiff Seung Chun Lim owns two adult businesses in Long Beach, both of which are in violation of the ordinance because they are within 300 feet of residential districts. One of his businesses is also located within an area restricted under LBMC § 21.45.110(A)(l)(f). Plaintiff Fluffy, Inc. owns one adult bookstore in Long Beach which is within 300 feet of a residential district and within a restricted area. Plaintiff 5436 Santa Monica Boulevard owns two adult businesses which are within 300 feet of residential districts. Plaintiffs filed this suit seeking a permanent injunction against enforcement of the ordinance, claiming that the ordinance violates their First Amendment rights as well as the Equal Protection Clause. [1] The district court found the ordinance constitutional. Where an ordinance does not ban adult businesses outright, but limits the areas of a city in which they may operate, it is considered a content-neutral time, place, and manner restriction. See City of Renton v. Playtime Theatres, 475 U.S. 41, 46, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). The ordinance is constitutional so long as it is designed to serve substantial governmental interests and allows for alternative avenues of communication. See id. The parties do not dispute that curbing the secondary effects of adult businesses is a substantial governmental interest. See City of Erie v. Pap's A.M., 529 U.S. —, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (statute is content neutral where government's interest is to curb secondary effects of adult businesses). Therefore, the only question presented to the district court, and in this appeal, is whether Long Beach's ordinance unreasonably limits alternative avenues of communication. During discovery, Long Beach identified 115 sites that it contended were available for use by adult businesses. It provided specific and detailed information about each site. Long Beach also noted that these 115 sites did not represent every site that was potentially available to adult businesses; rather, the 115 locations were an attempt by Long Beach to show the existence of a sufficient number of alternative sites. See Lim, 12 F.Supp.2d at 1062. *1054 The district court found that 27 or 28 adult businesses could coexist under the ordinance and concluded that the ordinance allowed for alternative avenues of communication. See id. at 1065-67. The district court also concluded that the ordinance did not violate the Equal Protection Clause because Long Beach had a rational basis for treating adult businesses differently from other businesses. See id. at 1067-68. STANDARD OF REVIEW [2][3] The district court's findings of fact are reviewed for clear error, see Valley Eng'rs Inc. v. Electric Eng'g Co., 158 F.3d 1051, 1052 (9th Cir.1998), while its conclusions of law are reviewed de novo, see Cigna Property and Cas. Ins. Co. v. Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998). Mixed questions of law and fact are also reviewed de novo. See United States v. City of Spokane, 918 F.2d 84, 86 (9th Cir. 1990). A mixed question of law and fact exists when there is no dispute as to the facts, the rule of law is undisputed, and the question is whether the facts satisfy the legal rule. See Pullman-Standard v. Swint, 456 U.S. 273,289 n. 19, 102 S.Ct. 1781, 72 L.Ed.2d 66 (1982); United States v. Lang, 149 F.3d 1044, 1046 (9th Cir.1998). ALTERNATIVE AVENUES OF COMMUNICATION [4][5][6] As a threshold matter, we note that it is clear that the burden of proving alternative avenues of communication rests on Long Beach. [FN3] See J & B Entertainment, Inc. v. City of Jackson, 152 F.3d 362, 370 (5th Cir.1998) ("[T]he government bears the burden of justifying (i.e. both the burden of production and Page 5 persuasion) the challenged statute."); Phillips v. Borough of Keyport, 107 F.3d 164, 177 (3d Cir.1997) (en bane) (burden of proving alternative avenues of communication is element for state to satisfy); see also Renton, 475 U.S. at 50, 106 S.Ct. 925 (implicitly placing burden of proof on city); Acorn Investments v. City of Seattle, 887 F.2d 219, 224 (9th Cir.1989) (city has burden to establish substantial government interest). Traditionally and logically, this burden is placed on Long Beach because the party seeking to restrict protected speech has the burden of justifying that restriction. See, e.g., Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983) (in context of commercial speech). [FN4] The issue before this court—one that is decidedly less clear-is the level of specificity about each particular site Long Beach is required to provide to sustain its burden. FN3. The district court erred to the extent that it placed this burden on the Plaintiffs. See Lim, 12 F.Supp.2d at 1064-65. "* FN4. In general, where a plaintiff claims ^^, suppression of speech under the First Amendment, the plaintiff bears the initial burden of proving that speech was restricted by the governmental action in question. See, e.g., Los Angeles Police Department v. United Reporting Publishing Corp., — U.S. —, , 120 S.Ct. 483,488-89,145 L.Ed.2d451 (1999). The burden then shifts to the defendant governmental entity to prove that the restriction in question is constitutional. See, e.g., Greater New Orleans Broadcasting Ass'n v. United States, 527 U.S. 173, 119 S.Ct. 1923, 1930, 144 L.Ed.2d 161 (1999). [7] A city allows for alternative avenues of communication if it offers adult businesses a "reasonable opportunity to open and operate ... within the city." Renton, 475 U.S. at 54, 106 S.Ct. 925. We have applied a two-step approach to determining whether this condition is satisfied: (1) relocation sites provided to adult businesses must be considered part of an actual business real estate market for commercial enterprises generally; and (2) after excluding those sites that ^^ may not properly be considered part of the ;' relevant real estate market, there are an adequate ****' number of relocation sites. See Topanga Press v. City of Los Angeles, 989 F.2d 1524, 1529 (9th Cir.1993). *1055 A. Actual Business Real Estate Market [8] In Topanga Press, we noted that "[w]e are left to the simple, yet slippery, test of reasonableness when attempting to discern whether land is or is not part of a market in which any business may compete." 989 F.2d at 1530. We then listed five considerations in making the reasonableness determination: (1) a relocation site is not part of the market if it is "unreasonable to believe that it would ever become available to any commercial enterprise;" (2) a relocation site in a manufacturing or industrial zone that is "reasonably accessible to the general public" may also be part of the market; (3) a site in a manufacturing zone that has proper infrastructure may be included in the market; (4) a site must be reasonable for some generic commercial enterprise, although not every particular enterprise, before it can be considered part of the market; and (5) a site that is commercially zoned is part of the relevant market. See id. at 1531. In addition, a site must obviously satisfy the conditions of the zoning ordinance in question. See id. [9] Plaintiffs argue that the district court erred in considering sites with restrictive leases banning adult entertainment establishments. Under Topanga Press, however, sites must only reasonably become available to some generic commercial enterprise, not specifically to adult businesses. See 989 F.2d at 1531-32 ("The issue is whether any site is part of an actual market for commercial enterprises generally."); cf. Woodall v. City of El Paso (Woodall III), 49 F.3d 1120, 1125-26 (5th Cir.1995) (also noting that large single-use buildings, like warehouses and factories, may arguably be outside commercial real estate market). Here, these sites may be available to commercial enterprises other than adult entertainment businesses. Therefore, the district court did not err in considering this property part of the actual business real estate market. [10] Plaintiffs also argue that the district court improperly considered certain currently occupied property as part of the actual business real estate market. Topanga Press stated that the requirement that property potentially become available (the first factor, above) "connotes genuine possibility." 989 F.2d at 1531. Thus, Page 6 for example, property subject to a long-term lease might not meet the Topanga Press test. Id. Plaintiffs contend that under Topanga Press, Long Beach should have been required to prove that the currently occupied property would reasonably become available to any commercial enterprise. Long Beach came forward with a list of 115 sites it contended were potentially available. According to the district court opinion, 12 F.Supp.2d at 1056-62, Long Beach provided pertinent, specific and detailed information about each site. Based on this information, the district court found that Long Beach made a good faith and reasonable attempt to prove that it was providing the Plaintiffs with a reasonable opportunity to open and operate. [11] A city cannot merely point to a random assortment of properties and simply assert that they are reasonably available to adult businesses. The city's duty to demonstrate the availability of properties is defined, at a bare minimum, by reasonableness and good faith. If a plaintiff can show that a city's attempt is not in fact in good faith or reasonable, by, for example, showing that a representative sample of properties are on their face unavailable, then the city will be required to put forth more detailed evidence. But where a city has provided a good faith and reasonable list of potentially available properties, it is for the Plaintiffs to show that, in fact, certain sites would not reasonably become available. See also Hickerson v. New York City, 146 F.3d 99, 107 (2d Cir.1998) ("[W]e are aware of no federal case ... that requires municipalities to identify the exact locations to which adult businesses may relocate, as opposed to identifying the general areas that remain *1056 available and proving that such areas contain enough potential relocation sites that are 'physically and legally available' to accommodate the adult establishments."). There is no reason to conclude that Long Beach acted in bad faith or unreasonably in identifying potentially available properties. The burden of showing that particular sites would not reasonably become available therefore rests with the Plaintiffs. [12][13] The district court denied Plaintiffs' request to submit additional evidence to satisfy their burden. See Lim, 12 F.Supp.2d at 1065 n. 6. The district court held that such evidence was irrelevant under Renton and Topanga Press. This holding was error in light of our conclusion today that, under Topanga Press, property must have a genuine possibility of coming available for commercial use to be considered part of the relevant commercial real estate market. We therefore remand to permit Plaintiffs to develop and present evidence that Long Beach's proffered properties would not reasonably become available because, for example, they were encumbered by long- term leases. B. Sufficiency of Alternative Sites Once the relevant market has been properly defined in light of any additional evidence presented by Plaintiffs on remand, the district court will have to reexamine whether the market contains a sufficient number of potential relocation sites for Plaintiffs' adult businesses. Because it is unclear how many sites will be part of the relevant market, we cannot determine whether the district court correctly concluded that a sufficient number of sites exist to allow Plaintiffs a reasonable opportunity to open and operate. EQUAL PROTECTION [14] Plaintiffs also claim that Long Beach violated their equal protection rights by (1) forcing existing adult businesses to relocate under the ordinance while allowing non-adult businesses to remain in place even when in violation of other city zoning ordinances; and (2) forcing adult businesses to comply with new parking regulations while non-adult businesses are exempt. Plaintiffs argue that Long Beach's actions single out adult businesses for unfavorable treatment in violation of the Equal Protection Clause of the Fourteenth Amendment. [FN5] FN5. Plaintiffs' argument is different from the argument raised in Young v. American Mini Theatres, Inc., 427 U.S. 50, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976), where the plaintiffs argued that their equal protection rights were violated because the ordinances in question treated adult businesses differently from other businesses. Here, Plaintiffs claim that Long Beach violates their equal protection rights by enforcing the 1994 ordinance against adult businesses while failing to enforce other zoning ordinances that affect non-adult businesses. It is unclear whether the Plaintiffs have even Page? established that Long Beach only forced non-conforming adult businesses to relocate, and only forced adult businesses to comply with new parking regulations. Even assuming Plaintiffs adequately proved that Long Beach discriminated against adult businesses, however, Plaintiffs' arguments fail. [15] Where no suspect classification is under scrutiny, the Equal Protection Clause requires that a government's action be rationally related to a permissible government objective. See, e.g., Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 96 S.Ct. 2562, 49 L.Ed.2d 520 (1976). This test has traditionally proved deferential toward the governmental entity. See, e.g., Railway Express Agency v. New York, 336 U.S. 106, 69 S.Ct. 463, 93 L.Ed. 533 (1949). Here, there is evidence that Long Beach had a rational reason for enforcing its adult business ordinance and not enforcing other zoning ordinances. Long Beach enforces its adult business ordinance because of its interest in curbing the secondary *1057 effects of adult businesses. Long Beach does not have a similar interest in enforcing its other ordinances. As such, the district court did not err in denying Plaintiffs' equal protection claim. AFFIRMED IN PART, REVERSED IN PART, and REMANDED. Costs on appeal to Plaintiffs. END OF DOCUMENT 36 Pagel 10F.3dl23 (Cite as: 10 F.3d 123) United States Court of Appeals, Third Circuit. Francis R. MITCHELL; Bob's Discount Adult Books, Inc., Appellants, v. COMMISSION ON ADULT ENTERTAINMENT ESTABLISHMENTS OF the STATE OF DELAWARE; Charles M. Oberly, III; Commissioners of the Commission on Adult Entertainment Establishments of the State of Delaware, an entity within the State of Delaware, Department of Administrative Services, Division of Business and Occupational Regulation, in their official capacities; Secretary, Delaware Department of Health & Social Services, an entity within the State of Delaware, in his official capacity; Delaware Department of Health & Social Services, an entity within the State of Delaware, Appellees. No. 92-7508. Argued June 22, 1993. Decided Nov. 24, 1993. Delaware corporation which owned and operated adult entertainment establishment, and its principal stockholder, brought suit challenging Delaware statute limiting hours of operation of such establishments and imposing an open-booth requirement. On cross motions for summary judgment, the United States District Court for the District of Delaware, Murray M. Schwartz, J., 802 F.Supp. 1112, upheld constitutionality of statute. Appeal was taken. The Court of Appeals, Hutchinson, Circuit Judge, held that: (1) provision limiting hours of operation was content-neutral, furthered a substantial government interest, and left alternate channels of communication open, and (2) same was true of provision requiring that viewing booths be completely open on one side to a public room. Affirmed. West Headnotes [1] Federal Courts €=>766 170Bk766 Most Cited Cases District court's grant of summary judgment is subject to plenary review. [2] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [2J Constitutional Law €=^90.4(4) 92k90.4(4) Most Cited Cases [2] Constitutional Law €>=?90.4(6) 92k90.4(6) Most Cited Cases Sexually explicit nonobscene films, live presentations, and printed matter are entitled to First Amendment protection. U.S.C.A. Const. Amend. 1. [3] Constitutional Law €=^>90. 92k90.4(l) Most Cited Cases Although First Amendment will not tolerate total suppression of erotic material that has some arguably artistic value, society's interest in protecting this type of expression is of wholly different, and lesser, magnitude than its interest in untrammeled political debate. U.S.C.A. ConstAmend. 1. [4] Constitutional Law <€=>90.4(1) 92k90.4(l) Most Cited Cases If regulation of sexually explicit materials is aimed primarily at suppression of First Amendment rights, then it is content-based and presumptively violates First Amendment. U.S.C.A. Const.Amend. 1 . [5] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases If regulation of sexually explicit material has as its primary purpose amelioration of socially adverse secondary effects of speech-related activity, regulation is content-neutral and court must measure it against traditional content-neutral time, place and manner standard. U.S.C.A. Const.Amend. 1. [6] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Reasonable time, place and manner regulations of speech protected by First Amendment are valid if they are justified without reference to content of regulated speech, they are narrowly tailored to serve significant or substantial government interest, and they leave open ample alternative channels of communication. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 2 U.S.C.A. ConstAmend. 1. [7] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Principal inquiry in determining content neutrality, in free speech cases generally, and in time, place or manner cases in particular, is whether government has adopted regulation of speech because of disagreement with message it conveys. U.S.C.A. ConstAmend. 1. [8] Constitutional Law €=^90(3) 92k90(3) Most Cited Cases Content-neutral speech regulations must be justified without reference to content of regulated speech. U.S.C.A. ConstAmend. 1. [9] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Regulation that serves purpose unrelated to content of expression is deemed neutral, for purposes of First Amendment violation analysis, even if it has incidental effect on some speakers or messages but not others. U.S.C.A. ConstAmend. 1. [10] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases Statute limiting hours of adult entertainment center was content-neutral, for purposes of determining whether it violated First Amendment, even though it was claimed that state had not produced sufficient evidence that alleged secondary problems connected with operation of adult entertainment business, such as traffic congestion, parking problems, performance of sexual acts in public, and littering of discarded sexually explicit materials, actually existed; time, place and manner regulation of such businesses could be supported by studies from other localities, and did not require separate study or independent evidence. U.S.C.A. ConstAmend. 1. [11] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases State's interest in preserving character and preventing deterioration of its neighborhood is a "substantial government interest", for purposes of determining whether otherwise content-neutral time, place and manner restriction on freedom of speech advances such interest. U.S.C.A. ConstAmend. 1. [12] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases Legislature passing statute limiting hours and operation of adult entertainment center had before it sufficient preenactment evidence of disruptive effect of such businesses on neighborhoods to permit conclusion that bill had been passed to further "substantial government interest", for purposes of determining whether First Amendment rights of operators were violated; sponsor of bill had stated that similar legislation had been found constitutional in other states, based on disruptive impact and member of state police had been made available to legislators for questioning as to impact as they deliberated on bill. U.S.C.A. ConstAmend. 1; 24 Del.C. § 1625(b). [13] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases Evidence of the disruptive effect on neighborhood, of adult entertainment center, can be introduced in proceeding to determine constitutionality of statute limiting hours of operation under First Amendment, even if evidence was not considered by state legislature in adopting statute, provided some evidence of disruption was considered by legislature. U.S.C.A. ConstAmend. 1; 24 Del.C. § 1625(b). [14] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases [14] Obscenit 281k2.5 Most Cited Cases There was adequate factual basis for assertion that statute regulating hours of operation of adult entertainment centers was based on legitimate government interest in minimizing disruptive effect of such centers on neighborhood, and was thus content-neutral reasonable tune restriction under First Amendment; proponents of hours limitations had discussed with sponsor of bill problems of noise, excessive parking, performance of sexual acts in public places, and presence of discarded sexually oriented material on residential lawns, and there had been references to problems caused by adult entertainment centers in other parts of country. U.S.C.A. ConstAmend. 1; 24 Del.C. § 1625(b). [15] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Restriction on speech or expressive activity is narrowly tailored, as required by First Amendment, if its effect on First Amendment freedoms is essential to further governmental interest that justifies incidental interference with First Amendment rights in first place. U.S.C.A. Const. Amend. 1. Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 3 [16] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases When regulation affects content of speech, means chosen to accomplish regulatory purpose cannot be substantially broader than necessary to achieve government's interest. U.S.C.A. Const.Amend. 1. [17] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Requirement for narrow tailoring restriction on speech, that "least restrictive means" of obtaining objective be followed, does not apply when content-neutral time, place and manner restrictions are at issue; rather such restrictions are "narrowly tailored" so long as regulation promotes substantial government interest that would be achieved less effectively absent regulation. U.S.C.A. Const. Amend. 1. [18] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases When potential for overbreadth burdens category of speech, such as sexually oriented expression, that enjoys less than full First Amendment protection afforded to political debate, "the cloth need not be cut quite so close" to meet requirement that the restriction be "narrowly tailored" to governmental objective. U.S.C.A. Const.Amend. 1. [19] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases In tailoring remedy for disruptive effect on neighborhood, caused by adult entertainment center, restriction must be fitted so as to ameliorate secondary effects of such places deemed to be undesirable. U.S.C.A. ConstAmend. 1. [20] Constitutional Law €=?90.4(3) 92k90.4(3) Most Cited Cases [20] Obscenity €=>2.5 281k2.5 Most Cited Cases Statute limiting hours of operation of adult entertainment center would be deemed to have been narrowly drawn to meet objection that such facility had disruptive effect on residential neighborhoods, even though particular adult facility challenging statute was located in building two miles away from any residential area on three sides and was separated from residential area on its fourth side by eight lane highway lacking any convenient pedestrian crossover points. U.S.C.A. ConstAmend. 1; 24 Del.C. § 1625(b). [21] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [21] Obscenity €=?2.5 281k2.5 Most Cited Cases Statute limiting hours of operation of adult bookstore satisfied First Amendment requirement that restriction on speech be narrowly tailored to meet governmental objective as applied to incidental time, place and manner regulation of marginally protected speech or expressive conduct; hours restriction supported substantial government interest in avoiding disruptive impact on residential areas, that would be achieved less effectively absent regulation. U.S.C.A. Const.Amend. 1; 24 Del.C. § 1625(b). [22] Constitutional Law €==>90.4(3) 92k90.4(3) Most Cited Cases [22] Obscenity 281k2.5 Most Cited Cases Statute limiting hours of operation of adult entertainment facility from 10:00 to 10:00 p.m. Mondays through Saturdays, and requiring closure on Sundays and 12 designated state holidays, left open alternate channels of communication, as required under First Amendment to support content-neutral restrictions on sexually explicit speech, even though facility challenging statute claimed that much of its business had been obtained in period after 10:00 p.m. and on Sunday; statute allowed for 3,600 hours a year of exposure to sexually explicit materials. U.S.C.A. ConstAmend. 1; 24 Del.C. § 1625(b). [23] Constitutional Law €=^90.4(3) 92k90.4(3) Most Cited Cases [23] Obscenity 281k2.5 Most Cited Cases Statute imposing limitation on number of hours that adult entertainment center could be open was a valid restriction on secondary effect of such facility, disruption of residential neighborhoods, which was permitted under First Amendment; statute was content-neutral, remedy was narrowly tailored to serve substantial governmental interest, and hours during which facility was still open insured that alternative channels of communication remained available. U.S.C.A. ConstAmend. 1; 24 Del.C. § 1624. [24] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases Copr. © West 2003 No Claim to Orig. U.S. Govt Works Page 4 [24] Obscenity 281k2.5 Most Cited Cases Statute prohibiting closed area for viewing sexually explicit materials in adult entertainment center satisfied requirement for regulation of constitutionally protected speech, that regulation be content-neutral, even though it was claimed that requirement was designed to restrict content of films being shown; avowed purpose of requirement was to cut down on transmission of Acquired Immune Deficiency Syndrome (AIDS) and other diseases transmitted as a result of sexual activity accompanying viewing of such materials in private, and there was no express limitation on type of materials that could be shown in open booth. U.S.C.A. Const.Amend. 1; 24Del.C. § 1633(b). [25J Constitutional Law €=>90.4(4) 92k90.4(4) Most Cited Cases [25] Obscenity 281k2.5 Most Cited Cases Statute requiring that viewing booths located in adult entertainment centers be open on side facing public room satisfied First Amendment requirement that statutes restricting protected speech be supported by substantial government interest, even though it was claimed that statute had been enacted out of mere unsupported legislative preference for open booths or because legislature arbitrarily and irrationally believed that closed booths contributed to serious public health problem; there was indication in preamble to amendment adding requirement that it was necessary in order to prevent the spread of communicable diseases, and there had been testimony from state police officer working in area that closed booths promoted sexual activity. U.S.C.A. Const.Amend. 1; 24 Del.C. § 1633(b). [26] Constitutional Law €=>90.4(4) 92k90.4(4) Most Cited Cases [26] Obscenity 281k2.5 Most Cited Cases Statute requiring that viewing booths in adult entertainment facilities have side facing public room completely open, so as to discourage sexual activity leading to the spread of Acquired Immune Deficiency Syndrome (AIDS) and other sexually communicated diseases, satisfied requirement for imposing restriction on constitutionally protected speech, that means used in furthering government interest be narrowly tailored to that interest, even though it was claimed that there were better means to deter sexual conduct without inhibiting freedom of expression, such as use of partial doors open at bottom, booths spaced further apart, or booths with bottom two feet of door removed; alternatives would not achieve desired goal of deterring promiscuous sexual contacts that could spread disease, involving persons in adjacent booths, or inhibit masturbation, and in any event legislature was not required to choose least-restrictive or least- intrusive means of achieving objective. U.S.C.A. Const.Amend. 1; 24 Del.C. § 1633(b). [27] Constitutional Law €=^240(1) 92k240(l) Most Cited Cases [27] Obscenity 281k2.5 Most Cited Cases Statute limiting hours of operation of adult entertainment center, and requiring that viewing booths within center have one side open to public room, did not violate equal protection rights of adult entertainment center operators; states and local governments may regulate such establishments differently from other business establishments, as long as regulation was content-neutral and aimed at ameliorating secondary effects caused by such establishments. U.S.C.A. Const.Amend. 14; 24 Del.C. §§ 1625(b), 1633(b). [28] Constitutional Law €== 92k90.4(3) Most Cited Cases .4(3) [28] Obscenity 281k2.5 Most Cited Cases Statute requiring that adult entertainment establishments have one side of viewing booths open to public room satisfied requirement, for imposing restriction upon constitutionally protected speech, that alternative channels of communication be left open; there was no restriction whatsoever on types of materials which patron of establishment could view in booth. U.S.C.A. Const.Amend. 14; 24 Del.C. § 1633(b). *127 Lewis H. Robertson (argued), Evans, Osborne & Kreizman, Red Bank, NJ, for appellants. James J. Hanley (argued), John K. Welch, Kevin R. Slattery, Dept. of Justice, Wilmington, DE, for appellees. Present: STAPLETON, MANSMANN and HUTCHINSON, Circuit Judges. OPINION OF THE COURT Copr. © West 2003 No Claim to Orig. U.S. Govt. Works PageS HUTCHINSON, Circuit Judge. Appellants Francis R. Mitchell ("Mitchell") and Bob's Discount Adult Books, Inc. (collectively "Adult Books") appeal an order of the United States District Court for the District of Delaware granting summary judgment in favor of appellees, Delaware's Attorney General Charles M. Oberly, III, the Secretary of its Department of Health and Social Services, and the Commissioners of Delaware's Commission on Adult Entertainment Establishments (collectively "the Commission"). Adult Books claims that the 1991 amendments to the Delaware Adult Entertainment Establishments Act ("the Act"), Del.Code Ann. tit. 24, §§ 1601-1635 (1987 & Supp. 1992) are unconstitutional restrictions of speech protected by the First Amendment. [FN1] The 1991 amendments limit the hours during which adult entertainment establishments can be open and require such establishments to eliminate all closed booths from which patrons could view live and video entertainment in seclusion. The district court held that these amendments were constitutional content-neutral, time, place, and manner regulations. We will affirm. [FN2] FN1. "Congress shall make no law ... abridging the freedom of speech, or of the press...." U.S. Const, amend. I. This amendment is made applicable to the states by the Due Process Clause of the Fourteenth Amendment. Echvardsv. South Carolina, 372 U.S. 229,83 S.Ct. 680,9 L.Ed.2d697 (1963). FN2. Adult Books' related appeal docketed at our No. 92-7507 from the district court's denial of costs and fees against the Commission under 42 U.S.C.A. § 1988 (West Supp. 1993), had been consolidated with this appeal for oral argument. The motion for counsel fees was based on a claim of partial success. It will be decided in a separate opinion. I. Factual and Procedural History A. Adult Books is a Delaware corporation which owns and operates an adult entertainment establishment at 174 South DuPont Highway in New Castle, Delaware. Mitchell is an officer, director, and the principal stockholder of Adult Books. Adult Books' entertainment facility is located on the northbound side of South Dupont Highway, an eight-lane highway with a four-foot concrete barrier dividing the northbound and southbound lanes. Zoning laws limit Adult Books' property, as well as contiguous properties within two miles in either direction on the northbound side, to commercial use. Nearby are a Delaware State Police Barracks and a gasoline station. Directly across the highway from Adult Books is Midvale, a residential community. None of the Midvale residences front on South Dupont Highway, but some of them share their rear lot lines with the highways southbound right-of-way line. No paths or walkways connect the northbound and southbound lanes of the divided highway. Since March 1976, Adult Books has sold books, magazines, films, and novelties of an adult nature at retail and provided adult films and video presentations for viewing from within completely enclosed booths. It also provided enclosed booths for viewing live *128 entertainment between March 1976 and December 1985, and again during the first half of 1991. In 1977, the Delaware General Assembly adopted the Adult Entertainment Establishments Act. The Act defined "adult entertainment establishments" subject to the Act, imposed a requirement that persons who engage in the operation of such establishments first obtain a license and comply with certain other provisions, and established the Commission on Adult Entertainment Establishments to oversee compliance. The Act also provided criminal penalties for those who operate an adult entertainment establishment without a license or in contravention of the requirements of the Act. The Act defines "adult entertainment establishment" as: any commercial establishment, business or service, or portion thereof, which offers sexually oriented material, devices, paraphernalia or specific sexual activities, services, performances or any combination thereof, or in any other form, whether printed, filmed, recorded or live.... Del.Code.Ann. tit. 24, § 1602(2) (Supp.1992). The Act further provides that the term "adult entertainment establishment" shall include, but not be limited to, adult book stores, conversation parlors, adult shows or adult peep shows, adult motion picture theatres, and massage establishments. Id. Adult Books does not dispute the Act's application to its business; it has been properly licensed since the effective date of the Act. This Court has previously upheld the constitutionality of the Act as originally enacted. See Mitchell v. Commission on Adult Entertainment Est. ("Mitchell I Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 6 "), C.A. No. 86-5519 (3d Cir. Jan. 30, 1987), 1987 U.S.App. LEXIS 1917, reported as table case at 810 F.2d 1164 (not-for-publication op.). In Mitchell I we applied the test the Supreme Court set forth in City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,47-48, 106 S.Ct. 925,928-29,89 L.Ed.2d 29 (1986), and held that "ft]he licensing statute is content-neutral, since it aims not at the content of adult entertainment, but at the secondary effects associated with it, i.e., the commission of various sex-related crimes. In attempting to curb these secondary effects, the Act serves the government's substantial interest in 'the health, safety and welfare of the people of the State.' " Mitchell I, slip op. at 8-9. On June 5, 1991, the Delaware General Assembly enacted Senate Bill No. 163 (the "closing-hours amendment") which added to § 1625 of the Act a subsection restricting the operating hours of adult entertainment establishments to the hours between 10:00 a.m. and 10:00 p.m. Monday through Saturday and requiring them to remain closed on all Sundays and legal holidays. The Delaware General Assembly also enacted Senate Bill No. 164 (the "open-booth amendment") which amended the Act by adding § 1633(b). Section 1633(b) prohibits booths used for the viewing of motion pictures or other forms of entertainment in adult entertainment establishments from having doors unless one side is open to an adjacent public room so that the area inside is visible to persons in that adjacent room. [FN3] FN3. Reported cases show several counties, cities and localities have adopted ordinances or provisions similar to the closing-hours and open- booth requirements involved in this case; however, none of them involved restrictions a state legislature prescribed for state- wide application. See, e.g., Doev. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990); Berg v. Health & Hosp. Corp., 865 F.2d 797 (7th Cir. 1989); Star Satellite, Inc. v. City of Biloxi, 779 F.2d 1074 (5th Cir. 1986). Before enactment of the 1991 amendments, Adult Books served about 200-500 patrons per day. Its business hours were typically from 10:00 a.m. until 3:00 a.m. on Monday through Saturday, and from 10:00 a.m. until 2:00 a.m. on Sunday. On Christmas Eve it closed at 6:00 p.m. and remained closed until 10:00 a.m. on the day after Christmas. It also closed at 6:00 p.m. on New Year's Eve. According to Mitchell, it was busiest on weekends and holidays. On any given day, patronage became heavier after the end of the work day and steadily increased through the early morning hours. On a number of occasions, Adult Books had to ask patrons to leave at the 3:00 a.m. closing time. There has been only one criminal complaint or recorded incident about a patron's conduct outside Adult Books' business premises. In it, one patron complained that another had assaulted *129 him in the parking lot and stolen his wallet. Before the 1991 amendments, Adult Books offered both live and video performances for viewing from enclosed booths. A patron who wanted to use the booth deposited tokens to gain access. Each booth had a door that let the patron screen out unwanted light, noise, and other distractions and afforded privacy to those who would otherwise be too ashamed or inhibited to view a sexually explicit performance while others watched or observed. Since enactment of the 1991 Amendments, Adult Books has limited its hours of operation and has removed the doors of its booths to comply with the Act. Based upon a comparison of revenues, Adult Books estimates that these two new restrictions have caused patronage to decrease to one-third or one-fourth its previous level. Mitchell and Adult Books did not produce any cash receipt entries for January through December 1991 in support of the alleged decrease in patronage. In response to the Commission's amended request for production of documents, Mitchell stated that he maintains no token counts for individual booths, nor any daily cash worksheets showing token counts for the booths. The express purpose of the open-booth amendment was to prevent high-risk sexual contact. Adult Books therefore asked the Commission to rule that booths equipped with doors that would conceal a patron's head, arms and torso but expose his legs would comply with the new open-booth requirement. According to Adult Books, this kind of a door would serve the purpose of the open-booth amendment by revealing whether more than one person was in the booth and still meet the viewer's desire for privacy. The Secretary of the Delaware Health and Social Services Department notified Adult Books, by letter dated August 12,1991, that " 'Dutch doors,' saloon style swinging doors, and doors with a 24-inch plexiglass panel at the bottom are not 'open to an adjacent public room,' " as the text of the open-booth amendment requires. Appellants' Appendix ("App.") at 249-50. B. Adult Books filed a claim under 42 U.S.C.A. § 1983 (West 1981) seeking a declaratory judgment that both Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page? the closing-hours and the open-booth amendments were unconstitutional. It also sought a temporary restraining order ("TRO") and a preliminary injunction against their enforcement. The district court denied Adult Books' application for a TRO, holding that it was unlikely to succeed on the merits. Adult Books then withdrew its motion for a preliminary injunction. Later, Adult Books amended its complaint to add the Delaware Department of Health and Social Services as a defendant, alleging that the Department was the state agency with authority to enforce the Act. Both Adult Books and the Commission moved for summary judgment. On August 27, 1992, the district court granted the Commission's motion for summary judgment holding that both the closing-hours and open-booth requirements were constitutional. Mitchell v. Commissioners ofComm'n on Adult Entertainment Est., 802 F.Supp. 1112, 1126 (D.Del. 1992) ("Mitchell II"). On September 17, 1992, Mitchell and Adult Books filed a timely notice of appeal. II. Jurisdiction and Standard of Review The district court had subject matter jurisdiction over Adult Books' action alleging violations of 42 U.S.C.A. § 1983 (West 1981) and the First and Fourteenth Amendments to the United States Constitution under 28 U.S.C.A. §§ 1331 and 1343(a)(3), (4) (West 1993). We have appellate jurisdiction under 28 U.S.C.A. § 1291 (West 1993) over Adult Books' timely appeal from the final decision of the district court granting summary judgment in favor of the Commission. [1 ] A district court's grant of summary judgment is subject to plenary review. Public Interest Research of N.J. v. PowellDuffryn Terminals, Inc., 913 F.2d 64 (3d Cir. 1990), cert, denied, 498 U.S. 1109,111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). *130 III. Overview of First Amendment Jurisprudence [2][3] The United States Supreme Court has afforded First Amendment protection to sexually explicit non-obscene [FN4] films, live presentations, and printed matter. See, e.g., Barnes v. Glen Theatre, Inc.. 501 U.S. 560, —-, 111 S.Ct. 2456,2463, 115 L.Ed.2d 504 (1991) (live nude dancing in adult bookstore and nightclub); Schad v. Borough of Mt.. Ephraim, 452 U.S. 61, 66, 101 S.Ct. 2176, 2181, 68 L.Ed.2d 671 (1981) (live nude dancer in adult book store); Erznoznik v. City of Jacksonville, 422 U.S. 205, 211-12,95 S.Ct. 2268,2273-74,45 L.Ed.2d 125 (1975) (motion pictures portraying nudity); Koisv. Wisconsin, 408 U.S. 229, 231-32, 92 S.Ct. 2245, 2246-47, 33 L.Ed.2d 312 (1972) (sexually explicit poetry). In Barnes, however, a plurality of the Supreme Court concluded that the First Amendment's guarantee of free expression only "marginally" protects nude dancing. Barnes, 501 U.S. at —, —, 111 S.Ct. at 2460, 2463. In a case challenging a local zoning ordinance that required adult theatres to be dispersed and not concentrated in limited zones, the Court has also stated: FN4. The Commission does not contend that the materials sold and viewed in adult entertainment establishments are obscene or that their content is undeserving of any First Amendment protection. [E]ven though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment. [FN5] FN5. Voltaire, referring to a suggestion that the violent overthrow of tyranny might be legitimate, said: "I disapprove of what you say, but I will defend to the death your right to say it." Young v. American Mini Theatres, Inc., 427 U.S. 50, 63 & n. 19, 96 S.Ct. 2440, 2449 & n. 19, 49 L.Ed.2d 310 (1976) (citing S. Tallentrye, The Friends of Voltaire 199 (1907)). Young v. American Mini Theatres, Inc., 427 U.S. 50, 70, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976) (footnote added). In Young, a plurality of the Supreme Court held that even though such sexually explicit films are protected from total suppression, "the State may legitimately use the content of these materials as the basis for placing them in a different classification from other motion pictures." Id. at 70-71, 96 S.Ct. at 2452. "Even within the area of protected speech, a difference in content may require a different governmental response." Id. at 66, 96 S.Ct. at 2450. Thus, the Supreme Court has indicated that some sexually explicit material may be only marginally protected. [4][5] Nevertheless, if the regulation of sexually explicit materials is aimed primarily at suppression of First Amendment rights, then it is thought to be content-based and so presumptively violates the First Copr. © West 2003 No Claim to Orig. U.S. Govt. Works PageS Amendment. See Renton, 475 U.S. at 46-48,106 S.Ct. at 928-29. But if the regulation's predominate purpose is the amelioration of socially adverse secondary effects of speech-related activity, the regulation is content-neutral and the court must measure it against the traditional content-neutral time, place, and manner standard. See Barnes, 501 U.S. at —, 111 S.Ct. at 2460; Renton, 475 U.S. at 46-48,106 S.Ct. at 928-29; Young, 427 U.S. at 70-72,96 S.Ct. at 2452-53. Under Renton, reasonable time, place, and manner regulations of protected speech are valid if: (1) they are justified without reference to the content of the regulated speech; (2) they are narrowly tailored to serve a significant or substantial government interest; [FN6] and (3) they leave open ample alternative channels of communication. [FN7] *131Renton, 475 U.S. at47-48, 106 S.Ct. at 928-29; see also Ward v. Rock Against Racism, 491 U.S. 781, 789-91', 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989); Young, 427 U.S. at 63 n. 18, 96 S.Ct. at 2449 n. 18. As the amendments are directed at curbing the side effects of Adult Books' speech-related activity, we judge this case under Renton, as did the district court, and will separately analyze both the closing-hours amendment and the open-booth amendment under its three-part test, considering first the closing-hours amendment. FN6. Supreme Court jurisprudence uses "substantial" and "significant" interchangeably to describe the governmental interest at stake. Compare Renton, 475 U.S. at 47-48,106 S.Ct. at 928-29 ("substantial") with Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221 (1984) ("significant"). FN7. More recently, in Barnes, the Supreme Court indicated that the applicable analysis for evaluating restrictions on nude dancing is the analysis formulated in United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968). See Barnes, 501 U.S. at —, 111 S.Ct. at 2460. The O'Brien Court established a four-prong test to be applied in determining whether a government regulation of conduct violated the First Amendment. This test considers whether the regulation is within the constitutional power of the Government; if it furthers an important or substantial government interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. O'Brien, 391 U.S. at 376-77,88 S.Ct. at 1679. In adopting this analysis in Barnes, the Supreme Court indicated that it parallels the analysis applied in Renton. See Barnes, 501 U.S. at —, 111 S.Ct. at 2460. Courts which have considered the constitutionality of open-booth ordinances have applied both O'Brien and Renton, indicating that the outcome is the same regardless of which analytical framework is applied. See, e.g., 11126 Baltimore Blvd. v. Prince George's Cty., Md, 886 F.2d 1415, 1420-21 (4th Cir.1989), vacated on other grounds, 496 U.S. 901, 110 S.Ct. 2580, 110 L.Ed.2d 261 (1990); Movie & Video World, Inc. v. Board of Cty. Comm'rs, 723 F.Supp. 695, 698-701 (S.D.Fla. 1989) (considering both O'Brien and Renton analyses and concluding that "the result under either of these tests is the same"). We agree with the Movie & Video World, Inc. court that regardless of whether the analytical framework of O'Brien or Renton is applied to the case at hand, that the result would be the same. Furthermore, the parties concede Renton's applicability. See Brief for Appellants at 33-35; Brief for Appellees at 22-23. Therefore we will analyze the case under Renton. IV. Closing-Hours Requirement—§ 1625(b) The Act provides: § 1625. Rules and prohibitions relating to adult entertainment establishments. ******(b) No adult entertainment establishment shall open to do business before 10:00 a.m., Monday through Saturday; and no adult entertainment establishment shall remain open after 10:00 p.m., Monday through Saturday. No adult entertainment establishment shall be open for business on any Sunday or a legal holiday as designated in § 501 of Title 1. Del.Code Ann. tit. 24, § 1625(b) (West Supp.1992) (effective July 9, 1991). [FN8] FN8. Courts have sustained regulatory restrictions on the hours of operation for many businesses; but most of these cases applied the deferential rational basis test because no fundamental right was involved. See, e.g., Cash Inn ofDade, Inc. v. Metropolitan Dade Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 9 County, 938F.2d 1239, 1241 (llthCir.1991) (upholding under rational basis test ordinance limiting hours of operation of pawnshops to 7:00 a.m. to 5:00 p.m., seven days a week); Pollardv. Cockrell, 578 F.2d 1002,1014 (5th Cir.1978) (upholding ordinance regulating hours of massage parlors); Patch Enter., Inc. v. McCall, 447 F.Supp. 1075, 1082 (D.Fla.1978) (upholding regulation on hours of bars). The closing-hours restriction in the case before us must be given heightened First Amendment scrutiny. A. Content Neutrality [6][7][8] "The principal inquiry in determining content neutrality, in speech cases generally and in time, place or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward, 491 U.S. at 791-93, 109 S.Ct. at 2754 (citing Clark v. Community for Creative Non-Violence, 468 U.S. 288, 295, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984)). Content-neutral speech regulations must be "justified without reference to the content of the regulated speech." Renton, 475 U.S. at 48, 106 S.Ct. at 929 (quoting Virginia Pharmacy Ed. v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 771, 96 S.Ct. 1817, 1830, 48 L.Ed.2d 346 (1976)) (emphasis in original). "A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791, 109 S.Ct. at 2754. In Renton, the Supreme Court looked to the predominate concern of the city council in passing the enactment and stated that if an ordinance does "not ban adult theatres altogether," [FN9] but merely bans them from some *132 parts of the city, it is properly analyzed as a form of time, place, and manner regulation. Renton, 475 U.S. at 46, 106 S.Ct. at 928. FN9. The challenged ordinance in Renton "provide[d] that such theatres may not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park or school." Renton, 475 U.S. at 46, 106 S.Ct. at 928. [9] Adult Books argues that these amendments are content-specific because they affect speech directly, not just incidentally, and are aimed only at adult entertainment establishments. Adult Books concedes that if the predominate concern of the legislature in enacting the closing-hours and open-booth amendments was the adverse secondary effects of its speech-related activity, the regulation must be analyzed as a reasonable time, place, or manner restriction. The Commission responds that both amendments are aimed primarily at curbing adverse secondary effects of adult entertainment establishments and the nuisance-like disruptive activity they occasion in residential areas. The state must also be prepared, however, to articulate and support its argument with a reasoned and substantial basis demonstrating the link between the regulation and the asserted governmental interest. See Schad, 452 U.S. at 69-70, 101 S.Ct. at 2183-84; id. at 77, 101 S.Ct. at 2187 (Blackmun, J., concurring). Thus, Adult Books does not appear to question the legislature's intent that the closing-hours amendment serves a substantial governmental interest. Instead, Adult Books argues that the legislature did not have an adequate factual basis to support its conclusion that the asserted undesirable secondary effects it seeks to regulate resulted from the protected activity or, if it did, that the closing-hours amendment would reduce them. Because the closing- hours amendment was passed without adequate factual support, Adult Books says it is presumptively content-specific and so unconstitutional. Adult Books' argument is reminiscent of one the Supreme Court rejected in Renton, a case that involved a zoning ordinance regulating the location of adult motion picture theaters. In Renton, the Supreme Court held that a city enacting an adult theatre zoning ordinance is entitled to rely on the experiences, evidence and studies of other cities enacting similar ordinances. Renton, 475 U.S. at 50, 51, 106 S.Ct. at 930, 931. In so holding, the Supreme Court specifically rejected the idea that the government need produce its own studies or independent evidence to justify its conclusions. [FN10] Id. FN10. Adult Books also contends that the closing-hours requirement abridges its First Amendment freedom of expression because it is busiest after 10:00 p.m. on weekdays and Saturdays, and on Sundays and holidays. It goes on to argue that enforcement of the closing-hours amendment has caused it to lose a tremendous amount of business. The Supreme Court, however, has stated that "[t]he inquiry for First Amendment purposes is not concerned with economic impact; rather, it looks only to the effect of this ordinance upon freedom of expression." Young, 427 U.S. at 78, 96 S.Ct. at 2456 (Powell, J., concurring); see also Movie & Video World, 723 F.Supp. at 700 (First Amendment does not guarantee Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 10 anyone a profit; all it requires is that speech, expression, and ideas be allowed an adequate forum). Adult Books has not attempted to show that it is not possible for adult entertainment centers to comply with the restriction on business hours and survive economically. There is no evidence that the legislature adopted the closing-hours amendment because of disagreement with the message the speech conveys. See Ward, 491 U.S. at 791-94, 109 S.Ct. at 2754-55. The closing-hours amendment only limits adult entertainment establishments' hours of operation to twelve hours per day excluding Sundays and legal holidays. It does not affect the content of speech directly, but only incidentally for the avowed purpose of decreasing traffic congestion, parking problems, the performance of sexual acts in public, and the littering of discarded sexually explicit materials near residential communities. See Renton, 475 U.S. at 48, 106 S.Ct. at 929. Furthermore, it appears that the content of the sexually explicit speech and expressive activity that businesses like Adult Books purvey permits legislative bodies to put adult entertainment establishments in a different category than other entertainment establishments. See Young, 427 U.S. at 70-71, 96 S.Ct. at 2452. In determining whether a legislative enactment meets the threshold test of content neutrality, courts typically look only to the predominate concern of the enacting body. Renton, 475 U.S. at48,106 S.Ct. at 929. *133 Whether the asserted government interest is proper and adequately supported is usually analyzed in terms of whether the enactment is narrowly tailored to achieve this interest, the second prong of the Renton test. See Renton, 475 U.S. at 49-51, 106 S.Ct. at 929-31. Therefore, we conclude that the closing-hours amendment is content-neutral in nature, and turn now to analysis of whether it is narrowly tailored. This, the second prong of Rentoris tripartite test, itself has two parts. B. Narrowly Tailored to Serve Substantial Governmental Interest We will first discuss the sufficiency of the asserted governmental interest and then consider the other edge of Renton's second double edged prong-whether the regulation is narrowly tailored to serve that interest. 1. Substantial Government Interest [10][11] The Supreme Court has recognized that a state's interest in preserving the character and preventing the deterioration of its neighborhoods adequately supports restrictions on adult entertainment establishments. See Young, 427 U.S. at 71,96 S.Ct. at 2452; see also Renton, 475 U.S. at 50,106 S.Ct. at 930 (city or state's "interest in attempting to preserve the quality of urban life is one that must be accorded high respect") (quoting Young, 427 U.S. at 71, 96 S.Ct. at 2452). We have already concluded that the closing-hours amendment can be justified if it is intended to reduce the undesirable secondary effects of adult entertainment establishments and to promote the welfare of the community's neighborhoods; however, before passing Senate Bill 163 embodying the amendment, the full Senate received no documents nor any sworn testimony in support of the bill. [FN11] In addition, the General Assembly did not conduct public hearings at which adult entertainment establishments could have voiced their concerns and views, nor did it undertake an official study to determine how the licensed establishments' operating hours affect the welfare of the neighborhoods. Cf. Star Satellite, Inc. v. Biloxi, 779 F.2d 1074, 1077 (5th Cir.1986) (ordinance adopted after extensive study by City including committee recommendations and public hearings). Therefore, Adult Books argues that pre-enactment factual support for the legislation was insufficient. FN11. Legislative bodies, in enacting statutes, do not receive evidence or take sworn testimony in the manner of courts. Legislative committees sometimes conduct hearings on pending bills, but the testimony they take is often unsworn and the documents they receive unauthenticated. The principles embodied in bills on the floor of a legislative body are generally debated more or less in accord with principles of logic and rhetoric, not proven through the admission of evidence. In Delaware it appears, however, that testimony can also be given when a Bill is on the floor. The judgment of the members of Delaware's General Assembly, like that of other legislators, is exercised on the basis of their personal experience and the experience of their constituents; then- judgment is not limited by the record presented to the assembled body. Under Renton, a city or state may rely heavily on the experience of, and studies produced by, other cities and states, as well as on court opinions from other jurisdictions. See Renton, 475 U.S. at 50-51,106 S.Ct. at 930- 31. In Renton. the Court held that the city could rely upon the opinions expressed in court Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 11 decisions of other jurisdictions to establish that the location of adult entertainment establishments has a harmful effect on an area, and thus, an important governmental interest justifying its passage. Id. at 51, 106 S.Ct. at 931. But Renton also requires the legislative body to rely upon the evidence of incidental adverse social effect that provides the important governmental interest justifying reasonable time, place and manner restrictions on speech or expressive conduct. As we have seen in our analysis ofRenton's threshold test of content neutrality, these adverse effects must be the legislature's predominate purpose in enacting the incidental restriction the statute imposes. Id at 51-52, 106 S.Ct. at 930-31. 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. *134 Id In Renton. therefore, the Supreme Court noted that the "detailed findings" summarized in another state's court opinion were before Renton's City Council when it passed its ordinance. Id at 51, 106 S.Ct. at 931. Logically, reliance on the governmental purpose of ameliorating the adverse effects of marginally protected speech or expressive activity presupposes knowledge of them. Adult Books' argument that Renton is distinguishable therefore seems to be based on the premise that reliance can only be shown by pre-enactment evidence that the legislature knew about the adverse effects which supply the required substantial government interest and therefore considered or relied on these effects in the law's enactment. Adult Books points out that the Delaware Senate had no evidence of adverse incidental effects before it prior to the passage of Senate Bill No. 163 other than the conclusory statements of its sponsor, while other cities and localities whose incidentally restrictive enactments have been judicially upheld against constitutional attack had before them more or less elaborate studies about the adverse incidental effects of the activities they sought to regulate when enacting such legislation. See, e.g., /1126 Baltimore Blvd. v. Prince George's Cty., Md, 886 F.2d 1415, 1423 (4th Cir.1989), vacated on other grounds, 496 U.S. 901, 110 S.Ct. 2580, 110 L.Ed.2d 261 (1990); SDJ, Inc. v. City of Houston, 837 F.2d 1268, 1274 (5th Cir.1988), cert, denied sub nom., M.E.F. Enter, v. Houston, 489 U.S. 1052, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The district court acknowledged that the General Assembly "considered the relationship between sexually-oriented businesses and their effects on the surrounding communities" "in a cursory fashion" and observed that "the record is not replete with pre-enactment evidence to support the challenged regulations." Mitchell II, 802 F.Supp. at 1120. Nevertheless, it held that there were sufficient facts before the Delaware Senate when it enacted Senate Bill No. 163 to satisfy Renton. As pre-enactment evidence, the Senate had before it a synopsis of the Bill and a statement by its chief sponsor. The synopsis to Senate Bill No. 163, accompanying § 1625, specifically stated: This Act provides certain time restrictions for adult entertainment establishments. In addition, this Act limits the operation of adult entertainment establishments to the hours of 10:00 a.m. and [sic] 10:00 p.m. Mondays through Saturdays; it requires such business to remain closed on Sundays and holidays. Courts have upheld such time restrictions, and found that they may, in fact, further a significant community interest in promoting the welfare of a community's neighborhoods. One court [Star Satellite] noted that such time restrictions, which permit an adult entertainment establishment to remain open fourteen hours per day, six days per week, did not suppress or ban sexually- explicit materials from the community, and were not manifestly arbitrary. Mitchell 11 802 F.Supp. at 1115. Senator McBride, the sponsor of the legislation, explained the rationale of Senate Bill No. 163 to the Senate as follows: Senate Bill No. 163 is an attempt ... by legislators from affected areas and others to allow the citizens in their community, if you will, to recapture their community. The adult entertainment establishments, particularly ones in my Senatorial District and nearby, unfortunately, were put into place and established before the adult entertainment laws were re-written by myself, Representative Spence and others back in the early '80s and in several cases they abut residential communities. In fact, our neighbors, if you will, of residential homes where families (inaudible) [FN12] the establishments have become an absolute nuisance to the community in the form of additional traffic and many, many other activities that take place unfortunately in the area because of these establishments. This bill before us now attempts to regulate, if you will, the hours of operation from in the morning until 10:00 p.m. to be closed Sundays and on legal holidays. We believe that while the law allows these establishments to operate, we believe that *135 we also have a right to set some reasonable hours of operation so that the neighborhoods can get some peace and quiet at least part of the day. If there are any questions, I have with us today a Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 12 gentleman from the Delaware State Police who has worked very closely with us on these matters and I would like to thank the State Police for their help. FN12. Proceedings of the Delaware Senate and House are tape recorded. Id. at 1116 (footnote renumbered). [FN13] FN13. There is no evidence on this record that Senator McBride's purpose, as sponsor of Senate Bill No. 163, was anything other than what he stated or that he was unfamiliar with the facts the state police had presented to him. Likewise, we do not suppose Adult Books would have us infer without evidence that the statements a member of a legislative body makes on the floor about the purpose and effect of pending legislation are untrustworthy. Such a presumption would seem unworkable as a matter of parliamentary procedure and could serve to invalidate every enactment that must constitutionally have the support of a substantial or significant governmental interest. [12] After the district court determined that Senator McBride's statement, coupled with the synopsis, was sufficient to demonstrate that Delaware's Senate passed Senate Bill 163 to regulate the undesirable incidental effect that the expressive activity of an establishment like Adult Books has on the community, it permitted the state to submit supplemental materials about the need for Senate Bill No. 163. We think the district court was justified in finding that the synopsis of the amendment, referring to other jurisdictions' recognition and treatment of the problem, coupled with Senator McBride's statements and his willingness to put forth testimony from the State Police, was pre-enactment evidence of need and effect sufficient to justify the district court's further consideration of the Commissioners' post-enactment deposition testimony. [FN14] Therefore, the district court's use of this post-enactment evidence was proper. See 11126 Baltimore Blvd., 886 F.2d at 1425 ("[C]ourts have routinely admitted evidence at trial to supplement a legislative record or explain the stated interests behind challenged regulations. It would appear from reviewing the Renton case, for example, that testimony of this nature was admitted at trial and considered on appeal."), vacated on other grounds, 496 U.S. 901,110 S.Ct. 2580, 110 L.Ed.2d 261 (1990); 75/92 Thirteen Mile Road, Inc. v. City of Warren, 626 F.Supp. 803, 816-17 (E.D.Mich.1985); cf. Contractors Ass'n of Eastern Pennsylvania, Inc. v. City of Philadelphia, 6 F.3d 990,1003 (3d Cir.1993) (recognizing that several courts have held post-enactment evidence admissible in determining whether an ordinance with racial classifications meets Equal Protection Clause). But see 15192 Thirteen Mile Road, 626 F.Supp. at 825 (taking trial testimony into account in considering legislative intent underlying statute, but dictating that such post hoc. justification should be considered suspect). FN14. The district court relied upon the post-enactment depositions of two of the Commissioners as supplemental evidence. This evidence speaks to both Renton's requirements that incidental restrictions on speech must be justified by a substantial governmental interest and that the government interest must be the predominate purpose for passage. [13] The ordinance upheld in Star Satellite, like Delaware's closing-hours amendment, limited adult bookstores to the hours of 10:00 a.m. to 12:00 midnight, Mondays through Saturdays, and required them to remain closed on Sundays. [FN15] Star Satellite, 779 F.2d at 1077, 1079. [FN16] Factual support for the need and effect of the ordinance in Star Satellite was somewhat stronger than that which the Senate of Delaware had before it *136 prior to enactment of the closing-hours amendment in question in this case. In Star Satellite, a committee appointed by the mayor had conducted an extensive study and held three public hearings during which citizens raised a number of concerns and problems allegedly caused by the regulated establishments. See Star Satellite, 779 F.2d at 1077-78. In evaluating the importance of the governmental interest justifying a particular ordinance that incidentally restricts speech in order to curb the adverse effects of marginally protected activity, we do not think a court must close its eyes to evidence that has been presented and considered in other similar cases. FN15. The city zoning ordinance in Star Satellite also restricted the location and operation of adult bookstores, massage parlors, bars, nightclubs and pool halls that serve liquor. Star Satellite. 779 F.2d at 1077 &n.2. FN16. The United States Court of Appeals for Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 13 the Fifth Circuit noted that the Star Satellite ordinance restricting the operation of regulated businesses to fourteen hours a day six days a week did not suppress all sexually-explicit speech within the city, and so distinguished it from the ordinances in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 63, 101 S.Ct. 2176,2179-80,68 L.Ed.2d 671 (1981). Star Satellite, 779 F.2d at 1079-80; see also Broadway Books, Inc. v. Roberts, 642 F.Supp. 486, 493, 504 (E.D.Tenn.1986) (upholding hours of operation provision requiring adult-oriented establishments to remain closed between 3:00 a.m. and 8:00 a.m. on weekdays and between 3:00 a.m. and 12:00 noon on Sundays); Ellwest Stereo Theater, Inc. v. Boner, 718 F.Supp. 1553, 1577 (M.D.Tenn.1989) (same). When the First Amendment protection afforded the expressed activity is only "marginal," Barnes, 501 U.S. at —, —, 111 S.Ct. at 2460, 2463, some courts have attenuated the requirement of pre-enactment legislative evidence of the undesirable side effects of expressive activity and a reasonable likelihood that the proposed bill will reduce them by adopting a "legislative notice" theory that is said to be analogous to the concept of judicial notice. See Wall Distrib., Inc. v. City of Newport News, 782 F.2d 1165,1169 n. 7 (4th Cir. 1986) (adopting "legislative notice" theory which allows legislative bodies to take notice or assume matters of common knowledge and experience); see also Postscript Enter, v. City ofBridgeton, 905 F.2d 223, 226-27 (8th Cir. 1990) (upholding legislation restricting operations of adult movie arcade based on Wall Distributors theory of legislative notice). Justice Souter's concurring opinion in Barnes also suggests a diminished need for pre- enactment evidence. See Barnes, 501 U.S. at —, 111 S.Ct. at 2470 (Souter, J., concurring) ("In light of Renton's recognition that legislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects.... I do not believe that a State is required to undertake to litigate this issue repeatedly in every case."). Here, it is unnecessary for us to reach or decide whether the doctrine of legislative notice of the incidental activities common to adult book stores can save a statute passed without any pre-enactment evidence of need and purpose. See Lakeland Lounge v. City of Jackson, Mississippi, 973 F.2d 1255, 1258 n. 1 (5th Cir. 1992) (recognizing, but not reaching, argument that in light of Renton and Barnes, legislative findings may no longer be necessary in addressing certain problems of national concern), cert, denied, 507 U.S. 1030, 113 S.Ct. 1845, 123 L.Ed.2d 469 (1993). The Delaware legislature had before it some basis for deciding the closing-hours amendment was needed to curb the unwanted incidental effects of businesses like Adult Books. This basis included the amendment's stated purpose, Senator McBride's statements to the General Assembly including his reference to the fact that a state police officer was on hand to provide supporting testimony, and experiences of other jurisdictions concerning such restrictions. The question remains, however, whether the pre-enactment and post- enactment evidence, taken together, were sufficient to show that the legislature's predominate purpose in passing the closing-hours amendment was regulation of the incidental effects of the activities of establishments like Adult Books and that those effects involved a substantial governmental interest. After passage of Senate Bill No. 163, Pasqualine Robison, one of the members of the Commission and a resident of Midvale, testified that before the passage of Senate Bill No. 163 she had discussed with Senator McBride the various problems adult entertainment establishments in that community cause including noise, traffic congestion, parking problems and the performance of sexual acts in public places. Mitchell II, 802 F.Supp. at 1116. Joann Christian, another member of the Commission, also a resident of Midvale, testified that she too had discussed with Senator McBride problems of noise, excessive parking, and the presence of discarded sexually oriented material on residential lawns that adult entertainment establishments cause. Id. Ms. Christian testified that she and Senator McBride had specifically considered curtailing the hours of adult entertainment establishments as a means of reducing these incidental problems. Id. The pre-enactment evidence before the Delaware Senate was sufficient to show a *137 proper purpose for the closing-hours amendment and, when coupled with the post-enactment supplemental evidence and the experience of other jurisdictions, amply demonstrated that the amendment was passed to control the socially undesirable effects incidental to the operation of adult entertainment establishments. Thus, we believe the evidence on this record is sufficient to show Delaware had a substantial governmental interest in regulating the incidental adverse effects of Adult Books' speech-related activity and that its decision to impose the restriction the closing-hours amendment entails was for that purpose and not for the purpose of regulating the content of the sexually explicit speech or expressive activity Adult Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 14 Books purveys. The perceived effects are akin to those created by a public nuisance. The operation of an establishment like Adult Books may have a place in our society but like the proverbial pig, it can be regulated out of the parlor and off the lawn. [14] In summary, we hold that the underlying governmental interest of Delaware's closing-hours amendment, which does not regulate or restrict the content of any speech, idea or expression, is supported by an adequate factual basis. [FN17] FN17. See Renton, 475 U.S. at 48, 106 S.Ct. at 929; see also Bamon Corp. v. City of Dayton, 923 F.2d 470, 473 (6th Or. 1991) ( "Regulations that apply to a particular category of speech because the regulatory targets happen to be associated with that type of speech are properly characterized as content-neutral, as long as the regulations are justified without reference to the content of that speech.") (citing Boos v. Barry, 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988)). 2. Narrowly Tailored Requirement [15][16][17][18] We must still address whether the closing-hours amendment is narrowly tailored to serve the substantial governmental interests that justify its enactment. See Renton, 475 U.S. at 47-48, 52, 106 S.Ct. at 928-29, 931; Ward, 491 U.S. at 789-91, 795-800,109 S.Ct. at 2753,2756- 58. A restriction on speech or expressive activity is narrowly tailored if its effect on First Amendment freedoms is essential to further the governmental interest that justifies incidental interference with First Amendment rights in the first place. O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679. Generally, where the regulation affects content, the means chosen cannot be substantially broader than necessary to achieve the government's interest. Ward, 491 U.S. at 796-98, 109 S.Ct. at 2757. This "least restrictive means" analysis, however, does not apply when content-neutral time, place, and manner restrictions are at issue. Id, 491 U.S. at 796-800, 109 S.Ct. at 2757-58; see also New Jersey Citizen Action v. Edison Township, 797 F.2d 1250,1255 (3d Cir.1986), cert, denied, 479 U.S. 1103, 107 S.Ct. 1336, 94 L.Ed.2d 186 (1987). Rather, such restrictions are "narrowly tailored" " 'so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.' " Ward, 491 U.S. at 799, 109 S.Ct. at 2758 (quoting United States v. Albertini, 472 U.S. 675,689,105 S.Ct. 2897,2906,86 L.Ed.2d 536 (1985)). Moreover, when the potential for overbreadth burdens a category of speech, such as sexually-oriented expression, that enjoys less than the full First Amendment protection afforded to political debate, the cloth need not be cut quite so close. See Barnes, 501 U.S. at —, 111 S.Ct. at 2470 (Souter, J., concurring). [19] Still, the legislative cloak must be fitted so as to "affect only that category of [adult entertainment establishments] shown to produce the unwanted secondary effects, thus avoiding the flaw that proved fatal to the regulations in Schad [, 452 U.S. at 63, 101 S.Ct. at 2179-80] and Erznoznik [, 422 U.S. at 213-14, 95 S.Ct. at 2274-75]." Renton, 475 U.S. at 52 [106 S.Ct. at 931]; see Tollis, Inc. v. San Bernardino County, 827 F.2d 1329, 1332-33 (9th Cir.1987) (county s predominant concern in prohibiting businesses purveying sexually explicit expressive materials within one thousand feet of any residential use or some other business and recreational uses with amelioration of secondary effects does not save ordinance interpreted to include any theater that showed a single sexually explicit adult movie). *138 [20] Adult Books argues that its location on the northbound side of an eight-lane divided highway, without any residences on that side within two miles of it, and its practical inaccessibility to pedestrians preclude the closing-hours amendment's application to it because the amendment's purpose of abating late night noise levels, crime, and sexually offensive materials and activities in residential areas is lacking in Adult Books' particular case. It is thus on the basis of its own particular location that Adult Books argues the closing-hours amendment is not narrowly tailored because it regulates the closing hours of all adult book stores, even those that can have none of the adverse effects on residential communities which justified the restriction in the first place. Adult Books points to Star Satellite in support of this argument. In that case, the challenged ordinance imposed different restrictions on residential and non-residential areas. See Star Satellite, 779 F.2d at 1077; cf. Young, 427 U.S. at 82, 96 S.Ct. at 2458 (Powell, J., concurring) ("The case would present a different situation had Detroit brought within the ordinance types of theatres that had not been shown to contribute to the deterioration of surrounding areas."). Adult Books' argument confuses the requirement that judicial resolution of individual disputes must be based on evidence material to the situation of the parties to the case with the requirement that a legislature seeking to restrict the time, manner or means of speech or expressive activity must show that it had a proper Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 15 purpose. [FN18] FN18. While the effect of the Bill on the class of persons it affects is often a subject of legislative debate, the debate is not normally focussed on the Bill's effect on a particular person. Renton indicates that a state legislature considering an ordinance or a statute designed to regulate the incidental undesirable effects of marginally protected expressive activity does not need to survey every adult book store in the state to determine the effect the statute or regulation will have on each. See Renton, 475 U.S. at 52, 106 S.Ct. at 931 (legislative restriction must be designed "to affect only that category of theatres shown to produce the unwanted secondary effects"). We think Renton leaves a legislative body free to classify and draw lines, provided it does not wholly or practically prevent access to the expressive material whose sale and distribution the ordinance or statute incidentally regulates. Thus, we agree with the district court's conclusion that the state need not prove that Adult Books' particular ability to disseminate its materials needs restriction in order to prevent the undesirable impact on its neighbors that justified the closing-hours amendment. We think, rather, that it need only show that adult entertainment establishments as a class cause the unwanted secondary effects the statute regulates. [FN19] FN19. Adult Books' argument that its particular location eliminates many of the undesirable effects the legislature wanted to regulate also overlooks the location of the Midvale residential development directly across the street on the southbound side of the highway where the residents are not immune to the nuisance of night noise and disturbances. In addition, there is evidence that patrons are known to park in the residential area and walk to the book store so that their cars would not be recognized at the book store. [21] In Renton, the Supreme Court also rejected an argument that a city had failed to prove narrow tailoring because it did not show its legislative decision to concentrate businesses that deal in sexually explicit material in a designated use zone was a better means of reducing their undesirable secondary effect than dispersing them throughout the city. Id. at 52-53, 106 S.Ct. at 931-32. Instead, it determined that the city's decision to concentrate establishments like Adult Books in one area was a legislative choice among competing means for which a court cannot substitute its own judgment. It stated: It is not our function to appraise the wisdom of [the city's] decision to require adult theatres to be separated rather than concentrated in the same areas.... [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. Id. at 52, 106 S.Ct. at 931 (quoting Young, 427 U.S. at 71, 96 S.Ct. at 2452) (plurality opinion) (brackets in original) (emphasis added). *139 Delaware's decision to regulate the closing hours of adult book stores instead of concentrating them in a single area is also an appropriate exercise of the legislative power to choose a particular means to accomplish a legitimate legislative end. Because Delaware's closing-hours amendment promotes a substantial government interest that would be achieved less effectively absent the regulation, it meets the narrowly tailored requirement, the second prong of the Renton test, as it is applied to incidental time, place and manner regulation of marginally protected speech or expressive conduct. C. Alternative Channels of Communication [22] We come now to the final prong of the Renton test, as it applies to the closing-hours amendment. Adult Books argues that the closing-hours amendment does not leave open adequate alternative channels of communication because it prohibits adult entertainment during the time of greatest customer demand. It cites, by analogy, several cases in which courts have invalidated regulations prohibiting door-to-door canvassing after 5:00 p.m. or 8:00 p.m. for lack of adequate alternatives. See, e.g., New Jersey Citizen Action, 797 F.2d at 1260-62; City ofWatsekav. Illinois Public Action Council, 796 F.2d 1547, 1557-58 (7th Cir.1986), affd, 479 U.S. 1048, 107 S.Ct. 919, 93 L.Ed.2d 972 (1987); Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248, 1256, 1258 (7th Cir.1985); cf. Pennsylvania Alliance for Jobs & Energy v. Council of Munhall, 743 F.2d 182, 187-88 (3d Cir. 1984). It is, of course, clear that "a restriction on expressive activity may be invalid if the remaining modes of communication are inadequate." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 812, 104 S.Ct. 2118, 2132, 80 L.Ed.2d 772 (1984); New Jersey Citizen Action, 797 F.2d at 1261. We think, however, that Delaware's restriction on the hours during which businesses like Adult Books can operate leaves adequate alternative channels of communication Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 16 open. Under the closing-hours amendment adult book stores are free to operate six days per week for twelve hours per day Monday through Saturday, between 10:00 a.m. and 10:00 p.m., except on holidays. Even when the closing-hours amendment's weekday restrictions are coupled with the prohibition on their operations on sixty-four days of the year (fifty-two Sundays and twelve designated state holidays), the closing restrictions cannot be considered to suppress or unduly restrict the dissemination of sexually-explicit materials in that state. The amendment allows those who choose to hear, view or participate publicly in sexually explicit expressive activity more than thirty- six hundred hours per year to do so. We think the Constitution requires no more. See Star Satellite, 779 F.2d at 1 079. [23] Because the third and final prong of the Renton test has been met, we have demonstrated that the closing-hours amendment meets all the Renton requirements. Accordingly, the district court did not err in upholding the closing-hours amendment against constitutional attack. V. Open-Booth Requirement~§ 1633(b)(2) We will again, as with the closing-hours amendment, apply each of Renton's three tests to the open-booth amendment. With respect to viewing booths in adult entertainment establishments, the Act provides: § 1633. Building standards. (b) No person shall own, operate, manage, rent, lease or exercise control over any commercial building, structure, premises or portion or part thereof, which contains: (1) Partitions between subdivisions of a room, portion or part of a building, structure or premises having an aperture which is designed or constructed to facilitate sexual activity between persons on either side of the partition; or (2) Booths, stalls, or partitioned portions of a room or individual rooms, used for the viewing of motion pictures or other forms of entertainment, having doors, curtains or portal partitions, unless such booths, stalls, partitioned portions of a room or individual rooms so used shall have at least one side open to *140 an adjacent public room so that the area inside is visible to persons in adjacent public rooms. Such areas shall be lighted in a manner that the persons in the areas used for viewing motion pictures or other forms of entertainment are visible from the adjacent public rooms, but such lighting shall not be of such intensity as to prevent the viewing of the motion pictures or other offered entertainment. Del.Code Ann. tit. 24, § 1633(b) (West Supp.1992) (effective July 9, 1991). A. Content Neutrality [24] Delaware's open-booth amendment does not ban films or other entertainment. It merely regulates the place where the viewing occurs. It is not directed at limiting the content of the films or performances patrons can view from within the booths, but rather at curbing the undesirable incidental effects that are perceived to result from the use of closed booths in adult entertainment establishments. These effects are thought to include the spread of AIDS and other communicable diseases through the unprotected, promiscuous sexual activity that can occur within the privacy of closed booths. The elimination or reduction of this adverse incidental effect of Adult Books' business of providing its patrons with sexually explicit materials appears to be a substantial governmental interest. Adult Books, however, argues that the predominate purpose of the Legislature was to restrict the content of the films Adult Books offers for viewing by its patrons rather than to curb the unwanted secondary effects of making it available in closed booths. We reject that argument. In doing so, we note our agreement with the district court in Movie & Video World v. Board of Commissioners, 723 F.Supp. 695, 700 (S.D.Fla.1989). It reasoned: The Plaintiff suggests that the legislature's true intent is, not to curb the "secondary effects," but rather to close the establishment and suppress the content of the films it offers for viewing. However, on its face the statute's stated reasons are to combat the possible spread of disease and to control crime. The record does not support any intention to suppress the content of the films themselves. Ordinance 88-31 does not ban the showing of sexually explicit videos and in no way limits access to or availability of such videos. It merely regulates the manner in which the films can be viewed. Additionally, the court will not strike down otherwise constitutional legislation on the basis of a "speculated illicit legislative motive." Id. at 700 (citations omitted); see also Suburban Video, Inc. v. City ofDelafleld, 694 F.Supp. 585, 589 (E.D.Wis.1988). The record in this case does not show that Delaware intended to suppress the content of any films. The Act and its amendments apply to all "adult entertainment establishments." They are defined as any "commercial Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 17 establishment ... which offers sexually oriented material, devices, paraphernalia or specific sexual activities, services, performances or any combination thereof," Del.Code Ann. tit. 24, § 1602(2) (Supp. 1992), as well as massage parlors, conversation parlors, and call services which have no First Amendment protection. Cf. Mini Spas, Inc. v. South Salt Lake City Corp., 810 F.2d 939, 940-42 (10th Cir.1987) (city's interest in regulating prostitution through ordinance prescribing dress code for massage parlors was unrelated to inhibiting freedom of expression). Like the ordinance in Berg v. Health & Hospital Corp. of Marion County, Indiana, 865 F.2d 797, 802 (7th Cir.1989), Delaware's open-booth amendment would apply to a showing of "Rebecca of Sunnybrook Farm" as well as any other film or performance. The [county ordinance regulating doors on individual entertainment enclosures] regulates only the non-communicative aspects relating to the environment in which such material may be disseminated or received, and thereby "imposes only an incidental burden" on plaintiffs' first amendment rights. Id. at 802 (citation and internal quotations omitted); see also Ellwest Stereo Theatres, Inc. v. Wenner, 681 F.2d 1243, 1245-46 & n. 2 (9th Cir.1982) (city ordinance requiring that viewing booths be visible from continuous *141 aisle regardless of type of film shown held content-neutral manner regulation). Like the closing-hours restriction, the open-booth amendment affects only the manner in which an expressive performance is viewed, not its substance. Therefore, we also review the open-booth amendment under the standards applicable to a content-neutral time, place, and manner regulation of expressive activity. B. Narrowly Tailored to Serve Substantial Governmental Interest 1. Substantial Government Interest [25] The purpose of § 1633(b)(2), the open-booth requirement, as stated in the statute itself at § 1631, is to "eliminate the possibility of the spread of, or infection by, communicable diseases." Del.Code Ann. tit. 24, § 1631 (a) (Supp. 1992). It provides in more detail: § 1631. Statement of purpose; findings. (a) It is hereby found that there are certain commercial premises, buildings, structures or parts thereof which, by reason of the design and use of such premises, buildings or structures are conducive to the spread of communicable disease to persons frequenting such premises, buildings and structures; and also to the public health, safety and welfare. The General Assembly declares that the health, safety and welfare of all persons in this State should be protected through the application and enforcement of standards regulating such premises, buildings and structures, in order to eliminate the possibility of the spread of, or infection by, communicable diseases. (b) The sexually transmittable disease of Acquired Immune Deficiency Syndrome, currently found to be irreversible and uniformly fatal, is found to be of particular danger to persons who frequent adult entertainment establishments or other premises, when they are in violation of state law. A high incidence of this and other communicable diseases is found to occur in discemable population groups. The risk factors for obtaining or spreading A.I.D.S. are associated with high-risk sexual conduct. The commercial premises, buildings and structures where persons might place themselves at risk of infection from this disease, or from any other communicable disease facilitated by high-risk sexual conduct, should as public policy be regulated and standards for the prevention of the spread of these communicable diseases should be established for the protection of the public health, safety and welfare. Id. (emphasis added). The Synopsis accompanying Senate Bill No. 164 provides: Magazine and newspaper articles, from time to time, contain articles relating to "anonymous sex" which takes place within certain adult entertainment establishments or similar places. It is the basic premise of this Act that such conduct is conducive to the spread of communicable disease; and is not only a danger to persons frequenting the adult entertainment establishment, or those engaged in such conduct, but it is also of danger to the pubic [public].... Mitchell II, 802 F.Supp. at 1116. As it did with the closing-hours restriction, Adult Books asserts that the factual record does not show the Delaware General Assembly passed the open- booth amendment for the purpose it set forth. It points to the record of the proceedings on the floor of the Delaware House of Representatives on final passage of the open-booth amendment. A review of this record reveals a reading of the bill by title and a brief oral description of its purpose by the sponsoring member immediately preceding the vote. In the Senate before enactment, Senator McBride, the sponsoring senator, informed the Senate from the floor: This is a very serious piece of legislation for a number of reasons. And we did a lot of research with it and got a lot of help in developing the legislation and there has been some question in the past in other Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 18 states about whether or not an open booth law ... is constitutional and we have found through research that that has been upheld in federal courts. Id. (emphasis omitted). Too close a concentration on the proceedings in the General Assembly on final passage *142 would improperly overlook other evidence that the Delaware General Assembly had a proper purpose for passing the open-booth amendment. On two separate occasions the General Assembly heard testimony from Captain Hancock of the Delaware State Police. The minutes of the House Sunset and Overview Committee for June 27, 1991 show that Captain Hancock testified on behalf of Senate Bill No. 164, the open-booth amendment, and "provided graphic descriptions of the behavior which the bill hopes to control." App. at 305. Captain Hancock also addressed the full Senate on June 19, 1991, after Senator McBride introduced the bill, when a senator asked for further explanation of the purposes of the bill. Captain Hancock explained that as head of the Delaware State Police's Financial Crime and Organized Crime Unit he had many contacts with adult entertainment establishments statewide. He described the booths commonly used and said that it was police experience "that the booths are little more than masturbation booths" and that seminal fluid was commonly found dripping down the walls and on the floor in puddles. App. at 316-18. Senator McBride then added that the legislation was intended to stop the spread of sexually related diseases and that similar legislation in other jurisdictions had been upheld. In Postscript Enterprises, the United States Court of Appeals for the Eighth Circuit upheld an open-booth requirement for a movie arcade on the theory of "legislative notice" adopted by the United States Court of Appeals for the Fourth Circuit in Wall Distributors. Postscript Enter., 905 F.2d at 226-27 (quoting Wall Distrib., 782 F.2d at 1169-70 n. 7). [FN20] The court of appeals upheld the open-booth ordinance based solely upon the purpose and need for an open-booth requirement that was stated in the enactment's introductory clauses. Id. at 227; cf. Christy v. City of Ann Arbor, 824 F.2d 489, 493 (6th Cir.1987) (insufficient factual support because there was no evidence of need and purpose, not even a preamble or statement in the regulation itself), cert, denied, 484 U.S. 1059, 108 S.Ct. 1013, 98 L.Ed.2d 978 (1988). FN20. See supra Part IV. B. 1. for our previous discussion of Postscript and the adequacy of the legislative record in support of the closing-hours amendment. The record of pre-enactment evidence in support of the need for and purpose of the open-booth amendment is stronger than that which we held sufficient to support the closing-hours amendment. Therefore, it is again unnecessary for us to rely on an unlimited doctrine of legislative notice. The introductory clause of the Postscript Enterprises ordinance stated: "the City Council finds that the viewing of movies within closed booths tends to promote crime, unsanitary conditions, and a pattern of conduct inimical to public health, decency and order." Postscript Enter., 905 F.2d at 228. There was no other factual support in Postscript's record. The Postscript court, in upholding an open-booth amendment on the basis of this clause, also recognized that other courts which had considered the validity of ordinances combating the dangers posed by closed viewing booths have uniformly upheld them as valid place or manner restrictions on protected speech. Id. at 227 (citations omitted). Indeed, Adult Books acknowledges that all federal courts that have addressed this issue have unanimously upheld the open-booth requirement as a valid exercise of state police power. See, e.g., Bamon Corp. v. City of Dayton, 923 F.2d 470 (6th Cir. 1991); Doe v. City of Minneapolis, 898 F.2d 612 (8th Cir. 1990); Postscript Enter., 905 F.2d 223; Berg v. Health & Hospital Corp of Marion County, 865 F.2d 797 (7th Cir. 1989); FW/PBS, Inc. v. City of Dallas, 837 F.2d 1298 (5th Cir.1988), vacated in part on other grounds, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990); Wall Distrib., 782 F.2d 1165; Elhvest Stereo Theatres, 681 F.2d 1243; Grunberg v. Town of East Hartford, Connecticut, 736 F.Supp. 430 (D.Conn.1989), affd, 901 F.2d 297 (2d Cir. 1990) (per curiam); Movie & Video World, 723 F.Supp. 695; Suburban Video, Inc. v. CityofDelafield, 694 F.Supp. 585 (E.D.Wis.1988); Broadway Books, Inc. v. Roberts, 642 F.Supp. 486 (E.D.Tenn.1986). Adult Books contends that these cases are distinguishable. It points out that in each of them, with the exception of the Court of Appeals for the Eighth Circuit's decision in Postscript Enterprises, factual support of a proper need and purpose for the prohibition *143 on closed booths was stronger than that which is present in this case. We are unpersuaded. This record shows that the open-booth amendment was not enacted out of a mere unsupported legislative preference for the open booths or because the legislature arbitrarily and irrationally believed that closed booths contribute to a serious public health Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 19 problem. Instead, the record shows that the concerns expressed in the preamble to the open-booth amendment when the Delaware House and Senate were considering its passage are not arbitrary, irrational or speculative and that the predominate motivating factor that led the Delaware legislature to pass the open-booth amendment was the reduction of these adverse incidental effects. The Delaware General Assembly had a legislatively adequate basis to support enactment of the open-booth amendment. It is not up to this Court to question the wisdom of its decision. 2. Narrowly Tailored Requirement [26][27] Although we have determined there is sufficient factual support to justify the government's asserted interest and purpose, we must determine whether the open-booth requirement is narrowly tailored to serve the governmental objective of preventing the spread of AIDS and other sexually transmitted diseases. Adult Books' argument that there are better means to deter sexual contact in the booths without inhibiting freedom of expression is rejected for much the same reasons that we rejected its similar argument against the closing-hours amendment. The choice of one among several legitimate statutory means to obtain a legitimate end is a matter for the legislature not the judiciary. Moreover, it does not appear that use of partial doors open only at the bottom, booths spaced further apart, or booths with the bottom two feet of the door removed would adequately accomplish the legislative goal of deterring promiscuous sexual contacts that can spread deadly disease. Doors of this kind would not inhibit sexual activity between two individuals in adjacent booths through the use of holes in the common dividing partitions, or inhibit masturbation within the partially enclosed booths. [FN21] Therefore, we reject Adult Books' contention that the legislative purpose of preventing unprotected sexual activity arguably could be served by spacing the booths one foot apart as well as its suggestion that this spacing, combined with partial doors, would reduce undesirable sexual conduct within the booths with less impairment of the privacy that encourages persons using the booths to engage in the kind of expressive activity Adult Books seeks to promote. Moreover, Delaware did not have to adopt the means Adult Books preferred to regulate the undesirable health effect of the marginally protected speech and expression it purveys. The state must be allowed a reasonable opportunity to experiment with solutions to problems, Renton, 475 U.S. at 52, 106 S.Ct. at 931 (quoting Young, 427 U.S. at 71,96 S.Ct. at 2452), and the regulation "need not be the least-restrictive or least-intrusive means of doing so." Ward, 491 U.S. at 798, 109 S.Ct. at 2757-58 (footnote omitted); see also Bamon Corp., 923 F.2d at 473-74. But see Berg, 865 F.2d at 803-04 (requiring least restrictive means analysis but concluding it was easily met with open-booth ordinance). "So long as the means chosen are not substantially broader than necessary to achieve the government's interest... the regulation will not be invalid simply because a court concludes that the government's interest could be adequately served by some less-speech- restrictive alternative." Ward, 491 U.S. at 800,109 S.Ct. at 2758. FN21. See Wall Distrib., 782 F.2d at 1169 (recognizing prevention of masturbation within booths and the unsanitary conditions that result as substantial government interest justifying closed booth ordinance); Movie & Video World, 723 F.Supp. at 699 (recognizing possibility that AIDS and other diseases could be spread by masturbation or by ejaculated semen left exposed on interior of booths). But see Suburban Video, 694 F.Supp. at 590 ("[W]hile AIDS apparently cannot be spread by masturbation, or by semen on the walls or floors of booths, [the State] has a substantial ... interest in ensuring sanitary, not just safe, public places."). Furthermore, a partial door would not necessarily prohibit an individual from engaging in sexual intercourse with others in the same booth because he could simply hold his or her partner so that his or her legs would not be exposed. *144 Thus, Delaware's officers and the Commissioners did not have to show that "[t]he open booth regulation appears to be the least burdensome means of controlling offensive and illegal activity within the booths that can be imagined." Wall Distrib., 782 F.2d at 1170. ,The Delaware patrons of establishments like Adult Books may still view what they desire privately in their homes or publicly in places that provide the material they seek. Therefore, we hold the open-booth amendment is narrowly tailored under the standards Ward and Young instruct us to apply to non-content based restrictions on the manner and place for the distribution of speech-related materials. [FN22] FN22. We also reject Adult Books' argument that the two amendments violated the Equal Protection Clause of the Fourteenth Amendment. The United States Supreme Court has held that states and local governments may regulate adult entertainment establishments differently than other business establishments if the regulation is Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 20 content-neutral and aimed at ameliorating secondary effects caused by such establishments. See Young, 427 U.S. at 70-71, 96 S.Ct. at 2452 ("[T]he State may legitimately use the content of these [motion pictures] as the basis for placing them in a different classification from other motion pictures."); see also Renton, 475 U.S. at 49-50,106 S.Ct. at 929-30; Star Satellite, 779 F.2d at 1080. We do not address Adult Books' argument that the open-booth provision is unduly vague. Although it was raised in the district court, Adult Books did not brief it on appeal and it is therefore waived or abandoned. See Institute for Scientific Info., Inc. v. Gordon & Breach, Science Publishers, Inc., 931 F.2d 1002, 1011 (3d Cir.), cert, denied, 502 U.S. 909, 112 S.Ct. 302, 116 L.Ed.2d 245 (1991). C. Alternative Channels of Communication [28] The open-booth amendment leaves ample alternative channels of communication. Nothing in it limits the number of viewing booths or the type of material that can be shown within the booths. Because the statute does not bar people from entertaining themselves by viewing sexually explicit films within individual booths or from renting, purchasing, or privately displaying any film or video, the availability of films or other entertainment to the public is not significantly impaired. So long as this is so, the amendment's effect on Adult Books' revenues from the purchase of the tokens needed to gain access to the booth is not material to a First Amendment analysis. See Young, 427 U.S. at 78,96 S.Ct. at 2456 (Powell, J., concurring); Movie & Video World, 723 F.Supp. at 700. "The viewing public is in no way 'denied access to the market... or... unable to satisfy its appetite for sexually explicit fanfare.' " Berg, 865 F.2d at 803 (quoting Young, 427 U.S. at 62, 96 S.Ct. at 2448). VI. For the foregoing reasons the order of the district court granting summary judgment in favor of the Commission in No. 92-7508 will be affirmed. 10F.3dl23 END OF DOCUMENT Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 37 Page 1 Copr. ® West 1999 No Claim to Orig. U.S. Govt. Works 463S.E.2dll6 (Cite as: 265 Ga. 829, 463 S.E.2d 116) PARKER d/b/a Paperdolls v. WHITFIELD COUNTY, Georgia. No. S95A0655. Supreme Court of Georgia. Nov. 6, 1995. Adult entertainment establishment owner brought action for declaratory and injunctive relief, claiming that county ordinance was unconstitutional. The Superior Court, Whitfield County, Charles A. Pannell, Jr., J., denied relief. Owner appealed. The Supreme Court, Thompson, J., held that ordinance was constitutional. Affirmed. Sears, J., concurred in judgment only. [1] THEATERS AND SHOWS k3 376k3 To justify enactment of ordinance that regulated adult entertainment establishments, county was required to prove that it considered specific evidence of pernicious secondary effects of adult entertainment establishments which it reasonably believed to be relevant to problems addressed by ordinance. [2] THEATERS AND SHOWS k3 376k3 Determination that adult entertainment establishments increased criminal sexual activity and depressed surrounding property values which was based on studies conducted by other communities and meetings between residents and various county officers justified enactment of ordinance that regulated adult entertainment establishments. [3] CONSTITUTIONAL LAW k90(3) 92k90(3) Ordinance can pass constitutional muster concerning freedom of speech even though it has somewhat negative impact on protected expression. U.S.C.A. Const.Amend. 1. [4] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Ordinance that set forth regulations to create and ensure buffer between performers and patrons at adult entertainment establishments furthered important government interests that were unrelated to suppression of speech, was an incidental restriction of speech that was no greater than necessary, and was thus constitutional. U.S.C.A. Const.Amend. 1. [4] THEATERS AND SHOWS k3 376k3 Ordinance that set forth regulations to create and ensure buffer between performers and patrons at adult entertainment establishments furthered important government interests that were unrelated to suppression of speech, was an incidental restriction of speech that was no greater than necessary, and was thus constitutional. U.S.C.A. Const.Amend. 1. [5] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) County can classify and regulate adult entertainment establishments differently from other places of entertainment without violating equal protection. U.S.C.A. Const.Amend. 14. [6] THEATERS AND SHOWS k3 376k3 Adult entertainment establishment licensing ordinance that required licensing official to investigate background of applicant and grant or deny license within 30 days and that allowed applicant to appeal to county board of commissioners from adverse decision and receive hearing within 30 days ensured that licensing decisions were to be made within specified brief period, and did not place unbridled discretion in hands of county. [7] THEATERS AND SHOWS k3 376k3 Adult entertainment establishment licensing ordinance that stated that license shall be issued to applicant who is at least 18 years of age, Page 2 completes application, cooperates in application process, has not made material misrepresentation in application, and has not been convicted of specified sexual offense did not vest licensing official with unfettered discretion, despite fact that ordinance required applicant to provide additional information upon official's request. [8] THEATERS AND SHOWS k3 376k3 Adult entertainment licensing ordinance that provided that licensees must not have been convicted of sexual offense was not overbroad. **117 *831 Thomas E. Maddox, Jr., Tucker, for Parker. C. Lee Daniel, III, McCamy, Phillips, Tuggle & Fordham, Dalton, for Whitfield County. *829 THOMPSON, Justice. Parker, the owner of a nude dancing establishment known as Paperdolls, attacks the constitutionality of a Whitfield County ordinance pertaining to the regulation of adult entertainment establishments. We find the ordinance constitutional and affirm the superior court's denial of declaratory and injunctive relief. [1][2] 1. Determining that adult entertainment establishments increased criminal sexual activity and depressed surrounding property values, the Whitfield County Board of Commissioners enacted an ordinance which was intended to minimize these concerns. The enactment of the ordinance was based on studies conducted by other communities, as well as formal and informal meetings between the members of the board, the Whitfield County Sheriff's Department, county residents, and the commissioners of other counties. Parker takes the position that the evidence assembled by the board was insufficient to justify the enactment of the ordinance. In this regard, he asserts that the county presented no evidence that the studies upon which the board relied were reasonable or accurate. However, "[i]t was not incumbent upon the [county] to prove the efficacy of the studies. To the contrary, the [county] was only required to prove that it considered 'specific evidence of the *830 pernicious secondary effects of adult entertainment establishments which it reasonably believed to be relevant to the problems addressed by the ordinance.' Club Southern Burlesque v. City of Carrollton, 265 Ga. 528, 530 (457 SE2d 816) (1995)." World Famous Dudley's Food & Spirits, Inc. v. City of College Park, 265 Ga. 618, 620, 458 S.E.2d 823 (1995). The evidence offered by the county satisfied that burden. 2. The ordinance sets forth certain regulations to create and ensure a buffer between performers and patrons. For example, it requires performers to dance on a stage of minimum height; establishes minimum distance requirements to prevent patrons and performers from touching each other; provides for full lighting of the premises; prohibits performers from receiving gratuities; and prohibits the sale and consumption of alcoholic beverages on the premises. Parker erroneously asserts these regulations demonstrate that the ordinance is unconstitutional because they are aimed at the suppression of free speech, not the pernicious secondary effects of nude dancing. [3] [4] An ordinance can pass constitutional muster even though it has a somewhat negative impact on protected expression. See Pel Asso, Inc. v. Joseph, 262 Ga. 904, 907, 427 S.E.2d 264 (1993). The Whitfield County ordinance furthers important government interests (reducing crime and protecting neighborhoods from deterioration) unrelated to the suppression of free speech, and the incidental restriction of speech is no greater than necessary to further the government interests. See Paramount Pictures Corp. v. Busbee, 250 Ga. 252, 256, 297 S.E.2d 250 (1982); Gravely v. Bacon, 263 Ga. 203, 207, 429 S.E.2d 663 (1993). [5] Parker's assertion that these regulations violate equal protection is equally erroneous. The county can "classify and regulate adult entertainment establishments differently **118 from other places of entertainment. [Cit.]" Gravely v. Bacon, supra at 207(3), 429 S.E.2d 663. [6] 3. The ordinance requires the owners and employees of adult entertainment establishments to be licensed by county officials. In this regard, the ordinance provides that the decisionmaker must investigate the background of an applicant and grant or deny the license within thirty days. It also allows for an appeal to the board from an adverse decision and requires the board to hold a hearing within thirty days. These requirements ensure that licensing decisions are to be made within a specified brief period and do not place unbridled discretion in the hands of the county. Page 3 See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 226, 227, 110 S.Ct. 596, 605, 606, 107 L.Ed.2d 603 (1990) (ordinance which does not set reasonable time limits for decisionmaker to issue license is impermissible); TK's Video, Inc. v. Denton County, Tex., *831 24 F.3d 705, 708 (5th Cir.1994) (licensing decision to be made within 60 days is reasonable). [7] Moreover, the ordinance contains clear and appropriate standards for the issuance of a license. It states that a license shall be issued to an applicant who is at least 18 years of age, completes the application, cooperates in the application process, has not made a material misrepresentation in the application and has not been convicted of a specified sexual offense. The ordinance does not vest the decisionmaker with unfettered discretion simply because the applicant must provide additional information upon the decisionmaker's request. [8] 4. The ordinance does not discriminate against adult business establishments because it provides that licensees must not have been convicted of a sexual offense. This provision is not overbroad—it is a valid exercise of the police power and is not unreasonable. Compare Airport Book Store, Inc. v. Jackson, 242 Ga. 214, 222, 248 S.E.2d 623 (1978) (denial of license based on sexual offense is reasonable) with Pel Asso, Inc. v. Joseph, supra, 262 Ga. at 909, 427 S.E.2d 264 (denial of license based on any crime of moral turpitude is unreasonable). Judgment affirmed. All the Justices concur, except SEARS, J., who concurs in the judgment only. END OF DOCUMENT 38 Pagel 49 Cal.Sd 14 774 P.2d 769,259 Cal.Rptr. 740,10 A.L.R.5th 1037 (Cite as: 49 Cal.3d 14) THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; JOSE RONILLO ABOGADO LUCERO et al., Real Parties in Interest No. S002438. Supreme Court of California Jun29, 1989. SUMMARY Defendants were charged in separate misdemeanor complaints with numerous counts of unlawfully establishing an adult entertainment business in violation of a city's "noncluster" or "Anti-skid Row" ordinance regulating the location of adult businesses. Each count of the complaints specifically alleged a violation by exhibiting a single adult film on a particular day. Defendants demurred to the complaints on the ground that exhibition of a single adult film did not make the theater an adult entertainment business, and the municipal court overruled the demurrers. The superior court granted defendants' petition for a peremptory writ of mandate directing the lower court to sustain the demurrers. The People declined to amend and instead requested the Court of Appeal to issue a writ of mandate to compel the superior court to vacate its judgment. The Court of Appeal, Second Dist, Div. Four, No. B029746, denied the writ, rejecting the People's contention that a single showing of an adult film made the theater an adult motion picture theater. Rather, it held, the standard was whether a preponderance of the films exhibited were adult. The Supreme Court affirmed the judgment of the Court of Appeal, holding that a single-use standard was an unconstitutional interpretation of the municipal ordinance. However, it held, the preponderance standard was not constitutionally compelled. Rather, it held, the proper constitutional standard was whether adult use of the theater was a "regular and substantial course of conduct." It also held that, even though a single-use standard had been adopted by the Court of Appeal in an appeal of earlier litigation involving the same parties, neither the law of the case doctrine nor collateral estoppel applied to control the standard used in the criminal prosecution, since the earlier litigation had been civil. (Opinion by Lucas, C. J., with Panelli, Eagleson and Kaufman, JJ., concurring. Separate concurring and dissenting opinions by Mosk, J., who concurred in the judgment, and by Kennard, J., with Broussard, J., concurring.) *15 HEADNOTES Classified to California Digest of Official Reports (la, Ib, Ic) Lewdness, Indecency, and Obscenity § 4~Obscene Words and Conduct-Zoning Ordinance Regulating Location of Adult Theaters-Amount of Use Necessary to Make Theater Adult—Regular and Substantial Course of Conduct. In determining the level of use necessary to make a movie theater an "adult motion picture theater" within the meaning of a city's "noncluster" or" Anti- skid Row" ordinance regulating the location of adult theaters, a preponderance standard, construed to mean "more often than not" or "most often," was not constitutionally compelled. (Disapproving Pringle v. City ofCovina (1981) 115 Cal. App. 3d 151 [171 Cal. Rptr. 251], to the extent it conflicts with the enunciated standard, and further disapproving the following decisions to the extent they interpreted that case as imposing a constitutional floor based on a preponderance standard: Kuhnsv. Boardof'Supervisors (1982) 128 Cal. App. 3d 369 [181 Cal. Rptr. 1]; Strand Property Corp. v. Municipal Court (1983) 148 Cal App. 3d 882 [200 Cal. Rptr. 47].) Rather, the proper constitutional standard was whether adult use of the theater was a "regular and substantial course of conduct." Such a standard both implemented the purpose of the ordinance in minimizing the deleterious secondary effects of adult businesses by preventing their concentration, while not prohibiting the showing of an occasional or incidental adult film, and conformed to the constitutional requirements of content-neutrality and narrowly tailored ordinances. [See Cal.Jur.3d, Zoning and Other Land Controls, §§ 76, 77; Am.Jur.2d, Lewdness, Indecency, and Obscenity, § 26.] (2) Criminal Law § 602-Appellate Review-Scope—Subsequent Appeals and Law of the Case Doctrine—Application to Criminal Prosecution Commenced After Conclusion of Civil Litigation. Copr. © Bancroft-Whitney and West Group 1998 Page 2 The law of the case doctrine did not apply in a criminal prosecution against motion picture theater owners under a city's "Anti-skid Row" ordinance, to control the standard used to determine whether a single showing of an adult film made the theater an adult-entertainment business within the meaning of the ordinance. Even though a single-use standard had been adopted by the Court of Appeal in an appeal of earlier litigation under the ordinance involving the same parties, that earlier case was civil, not criminal, and became final well before the criminal prosecution was instituted. It was thus not the "same case," and the doctrine accordingly was inapplicable. *16 (3) Judgments § 86-Res Judicata-Collateral Estoppel-Nature of Proceedings—Criminal Prosecution Commenced After Conclusion of Civil Litigation. The collateral estoppel doctrine did not apply in a criminal prosecution against motion picture theater owners under a city's "Anti-skid Row" ordinance, to control the standard used to determine whether a single showing of an adult film made the theater an adult-entertainment business within the meaning of the ordinance. Even though a single-use standard had been adopted by the Court of Appeal in an appeal of earlier litigation under the ordinance involving the same parties, that earlier case was civil, not criminal. It is highly questionable whether a prior determination against a party in a civil action may be applied as a collateral estoppel against that same party in a criminal action. Moreover, the single-use standard conflicted with the preponderance standard adopted in the only published opinion on the subject, and application of collateral estoppel would therefore be unjust and disserve the public interest. (4) Lewdness, Indecency, and Obscenity § 5-Obscene Words and Conduct- Validity-"Anti-skid Row" Ordinances. Municipal "Anti-skid Row" ordinances, which prevent the establishment of adult theaters and bookstores within a specified distance from other regulated uses or from any residential zone but do not ban such businesses altogether, and which provide for reasonable alternative avenues of communication, are not unconstitutional on free speech, vagueness, overbreadth or equal protection grounds (U.S. Const., 1st and 14th Amends.). Rather, they constitute reasonable time, place, and manner regulations necessary to further the city's significant interest in preserving the character of its neighborhoods by protecting them from deterioration, increased crime, and other harmful secondary effects of adult theaters. (5) Zoning and Planning § 14-"Anti-skid Row" Ordinances—Reliance on Studies Conducted by Other Cities. In enacting an "Anti-skid Row" zoning ordinance regulating the location of adult theaters, a city may rely on relevant studies conducted by other cities on the need for zoning controls of adult theaters, in order to establish a substantial governmental interest. U.S. Const., 1st Amend., 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. (6) Zoning and Planning § 14~Enactment, Amendment, and Repeal of Zoning Plans and Regulations—"Anti-skid Row" Ordinances—Permissible Experimentation-Cluster and Noncluster Zoning. A city *17 must be allowed a reasonable opportunity to experiment with zoning solutions to the admittedly serious problem of harmful secondary effects of adult theaters on neighboring communities. Thus, a city may permissibly choose to regulate the location of such theaters by anti-skid row ordinances, either by disbursing them through noncluster zoning, or by concentrating them through cluster zoning. (7) Constitutional Law § 55.2—Freedom of Speech and Expression—Commercial Speech—Zoning Regulation of Adult Theaters-Assurance of Commercially Viable Site. While U.S. Const., 1st Amend., requires that a city zoning ordinance refrain from effectively denying adult theater operators a reasonable opportunity to open and operate an adult theater within the city, it does not require that adult theaters, or any other type of speech-related business, be ensured of obtaining a commercially viable site. (8a, 8b) Lewdness, Indecency, and Obscenity § 5~Obscene Words and Conduct—Validity-"Anti-skid Row" Ordinances—Single-use Standard. A city "Anti-skid Row" ordinance regulating the location of adult theaters is unconstitutional if construed to prohibit even a single showing of an adult motion picture. A single-use standard is insufficiently tailored to serve the substantial governmental interest in preventing harmful secondary effects of adult theaters, and does not allow for reasonable alternative avenues of communication. Accordingly, misdemeanor complaints alleging multiple violations under a city's zoning ordinance, each based on the exhibition of a single adult film by defendants on a particular day, were constitutionally infirm. (9) Constitutional Law § 26—Constitutionality of Legislation-- Construction in Favor of Copr. © Bancroft-Whitney and West Group 1998 PageS Constitutionality—Vagueness Challenge-Conformation to Purpose of Enactment. Vague or ambiguous terms in a legislation are to be construed where possible so as to preserve their constitutionality. In doing so, however, the court must give a construction which conforms both to the dictates of the Constitution and to the purposes of the enactment. COUNSEL John A. Vander Lans, City Prosecutor, Robert R. Recknagel, Assistant City Prosecutor, and Gerry L. Ensley, Deputy City Prosecutor, for Petitioner. *18 No appearance for Respondent. Fleishman, Fisher & Moest, Stanley Fleishman, Barry A. Fisher, Robert C. Moest and David Grosz for Real Parties in Interest. LUCAS, C. J. This case involves the enforcement of a Long Beach zoning ordinance that prohibits the location of "adult entertainment businesses" (including adult motion picture theaters) within 500 feet of residential areas, or 1,000 feet of public schools or churches (Long Beach Mun. Code, ch. 21.51, hereafter Chapter 21.51). The ordinance is described as a "non-cluster" or "Anti-skid Row" ordinance because it is designed to discourage development of a "skid row" area by limiting the harmful secondary effects of adult entertainment businesses on adjacent areas, and by insuring such businesses do not contribute to the blighting of surrounding neighborhoods. (See Ch. 21.51.010, "Purpose.") It was patterned after a Detroit adult entertainment zoning ordinance upheld in Young v. American Mini Theaters, Inc. (1976) 427 U.S. 50 [49 L.Ed.2d 310, 96 S.Ct. 2440]. The question before us concerns the appropriate constitutional standard by which to define the "use" necessary to make a movie theater an "adult motion picture theater" within the meaning of the ordinance. [FN1] In Pringle v. City of Covina (1981) 115 Cal.App.3d 151 [171 Cal.Rptr. 251], the Court of Appeal held that an adult entertainment zoning ordinance cannot be enforced against an adult motion picture theater unless a "preponderance" (meaning "more often than not") of the "adult" films shown by the establishment have as then- dominant theme the depiction of the ordinance's enumerated sexual activities. FN1 The ordinance defines an adult motion picture theater as "an enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein." (Ch. 21.51, § 21.51.020 (A)(2).) Chapter 21.51 is set forth hi the appendix. In following Pringle, subsequent cases interpreting adult entertainment ordinances have required "use" to be defined as "over 50 percent." (Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 889 [200 Cal.Rptr. 47] [construing "use" defined under the ordinance as a "substantial or significant portion of the total presentation time to mean a "preponderance " that must be defined as "over 50 percent"]; Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369,376 [181 Cal.Rptr. 1] [construing *19 "use " defined as a "substantial or significant portion of stock hi trade" in adult bookstore ordinance to mean "over half of a bookstore's stock"].) Moreover, the present Court of Appeal believed the People were bound by Pringle's preponderance standard. (Post, at p. 20.) We disagree, (la) As we explain, although municipalities are free to adopt such a test in defining " use " under an adult entertainment ordinance, we conclude Pringle's preponderance standard is not constitutionally compelled. In place of such a test, we adopt a constitutional standard similar to that recently approved by the United States Supreme Court and several state courts: cities may zone the location of theaters that show, on a regular basis, films characterized by an emphasis on the "specified sexual activities" or "specified anatomical areas " identified in the ordinance, where such films constitute a substantial portion of the films shown or account for a substantial part of the revenues derived from the exhibition of films (hereafter "the regular and substantial course of conduct " standard). (See, e.g., Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41, 55, fh. 4 [89 L.Ed.2d 29, 37, 106 S.Ct. 925]; Young, supra, 427 U.S. at p. 59 [49 L.Ed.2d at p. 316]; see also Town oflslip v. Caviglia (1988) 141 A.D.2d 148 [532 N.Y.S.2d 783, 784-785, fh. 2].) I. Facts Real parties in interest Jose Ronillo Abogado Lucero, Walnut Properties, Inc., and Jimmie Johnson (hereafter real parties) were charged in separate misdemeanor complaints with numerous counts of unlawfully Copr. © Bancroft-Whitney and West Group 1998 Page 4 establishing an adult entertainment business in violation of Chapter 21.51. Real parties' establishment, the Lakewood Theater, has two screens: one screen shows general release films and one screen shows adult films. Each count of the misdemeanor complaints specifically alleged real parties unlawfully established an adult theater in violation of Chapter 21.51 by exhibiting an X-rated movie on a particular day within the distances proscribed by the ordinance. Real parties filed demurrers to the complaints on the ground that exhibition of a single adult film, as alleged in the complaints, did not make the theater an adult entertainment business under the preponderance standard established by Pringle, supra, 115 Cal.App.3d 151. After the municipal court overruled the demurrers, real parties petitioned the superior court for a peremptory writ of mandate directing the lower court to sustain the demurrers. The superior court granted the writ with leave to amend. The People declined to amend and instead requested the Court of Appeal to issue a writ of mandate to compel the superior court to vacate its judgment. *20 The Court of Appeal denied the writ and rejected the People's contention that a single showing of an adult film makes the theater an adult motion picture theater within the meaning of the zoning ordinance. (2,3) (See fn . 3.) The court first rejected the People's argument that the "single use" standard adopted by the Court of Appeal in Walnut Properties v. Ussery (Cal. App.) [FN2] should control the outcome of the present litigation under the law of the case and collateral estoppel doctrines. [FN3] FN2 We ordered the opinion not published in the Official Reports by order dated June 24, 1986(B005781). FN3 The Ussery case involved the same parties, theater and ordinance as in the present case. The court in Ussery observed that the only way to prevent the undesirable effects of adult theaters on the surrounding neighborhoods, and to implement the zoning ordinance according to the intent of its drafters, was to prohibit any use of the theater for showing adult motion pictures. In rejecting the People's law-of-the-case and collateral estoppel arguments, the Court of Appeal first observed that Lucero was a criminal case, instituted well after Ussery, a civil case, became final and therefore the doctrine of law of the case should not apply. We agree. We also agree with the Court of Appeal's decision not to apply the collateral estoppel doctrine to defendants. First, it is highly questionable whether a prior determination against a party in a civil action may be applied as a collateral estoppel against that same party in a criminal action. (SeeAshe v. Swenson (1970) 397 U.S. 436 [25 L.Ed.2d 469, 90 S.Ct. 1189].) In addition, if Ussery were given collateral estoppel effect in this case, the single-instance standard would apply to Lakewood Theater and the preponderance standard enunciated in Pringle (115 Cal.App.3d 151) which is the only published decision on this issue would apply to all other theaters. Such an unjust result would disserve the public interest. (See Consumers Lobby Against Monopolies v. Public Utils. Com. (1979) 25 Cal.3d 891,902 [160 Cal.Rptr. 124, 603 P.2d 41].)" Next, in rejecting the People's contention that a "single use" standard should apply, the Court of Appeal cited with approval Tollis, Inc. v. San Bernardino County (9th Cir. 1987)827F.2d 1329,whichheldthata"single use" interpretation of an adult entertainment zoning ordinance was unconstitutional in the absence of evidence "that a single showing of an adult movie would have any harmful secondary effects on the community." (Id. atp. 1333.) The Court of Appeal then denied the People's petition for writ of mandate because the complaints "did not allege, in accordance with the requirements of Pringle, that the preponderance of films exhibited and observed by patrons at the Lakewood Theater were 'distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specific anatomical areas' (Chapter 21.51.020(A) ...) as those terms are defined in Chapter 21.51.020(B)(l-7) and (C)(l-2) of the Long Beach Municipal Code." In reviewing the Court of Appeal opinion, we examine the People's argument requesting we affirm as constitutionally permissible a "single use" standard. *21 II. Background A. Constitutionality of adult entertainment zoning In August 1977 Walnut Properties, Inc. (hereafter Walnut), obtained a business license to operate a motion picture theater on the representation that it intended to exhibit nonadult films. (Walnut Properties v. City Council of the City of Long Beach (1980) 100 Cal.App.3d 1018, 1024 [161 Cal.Rptr. 411].) In November of that year, following the high court's Copr. © Bancroft-Whitney and West Group 1998 Page5 decision in Young, supra, 427 U.S. 50, the city enacted Municipal Code Chapter 9120.41, which was amended in 1979 to become Chapter 21.51, the ordinance at issue in the present case. The 1979 ordinance is substantially similar to the 1977 version - its primary purpose being to regulate the location of adult motion picture theaters. After the ordinance was passed Walnut began showing adult films. In December 1977, shortly after Walnut opened its theater, the Long Beach City Council instituted proceedings culminating in the revocation of Walnut's operating license. Walnut sued the city, challenging the constitutionality of the ordinance. (Walnut Properties, supra, lOOCal.App.Sdatp. 1020.) After conceding that its theater was an "adult entertainment business" as defined by the ordinance, Walnut argued the ordinance violated the First Amendment's freedom of speech clause as an unconstitutional regulation of constitutionally protected conduct. In addition, Walnut claimed that the ordinance was vague, overbroad and vested public officials with impermissible discretion to enforce its terms. (Id. at p. 1021; see, e.g., Burton v. Municipal Court (1968) 68 Cal.2d 684 [68 Cal.Rptr. 721, 441 P.2d 281].) The ordinance survived constitutional scrutiny, however, after the Court of Appeal found Young, supra, 427 U.S. 50, dispositive of the constitutional issues. (Walnut Properties, supra, 100Cal.App.3datp. 1023.) The two Detroit ordinances at issue in Young were termed "Anti-skid Row" ordinances because they prohibited (except where a special waiver was obtained) locating adult theaters and adult bookstores within 1,000 feet of any two other "regulated uses" or within 500 feet of any residential zone. The ordinances' definition of an "adult motion picture theater" was identical to that of the Long Beach ordinance we discuss here. (Young, supra, 427 U.S. at pp. 53-54, fii. 5 [49 L.Ed.2d at p. 316].) (4) The plurality, led by Justice Stevens, upheld the ordinances on the basis they were not directed at restricting speech, but rather were reasonable time, place and manner regulations necessary to further the city's *22 significant interest in preserving the character of its neighborhoods. The Young court concluded that as long as such ordinances were enacted to regulate the location of adult theaters in order to protect neighborhoods from deterioration, increased crime and other harmful secondary effects, they did not offend either the First Amendment or the equal protection clause of the Fourteenth Amendment. (Young, supra, 427 U.S. 50, 68-73 [49 L.Ed.2d 310, 324-327]; see Developments in the Law - Zoning (1978) 91 Harv.L.Rev. 1427, 1557-1559.) [FN4] FN4 The Young court noted that under the ordinances "adult films may only be exhibited commercially in licensed theaters." (Young, supra, 427 U.S. at p. 62 [49 L.Ed.2d at p. 321].) The court observed, however, that the "city's general zoning laws require all motion picture theaters to satisfy certain locational as well as other requirements; we have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason -for invalidating these ordinances." (Ibid.) The Young court also rejected the theater owner's vagueness attack on the ordinances on the basis that "Neither respondent... alleged any basis for claiming or anticipating any waiver of the restriction as applied to its theater." (Young, supra, 427 U.S. at p. 59 [49 L.Ed.2d at p. 319].) The court observed that "the only vagueness in the ordinances relates to the amount of sexually explicit activity that may be portrayed before the material can be said to be 'characterized by an emphasis' on such matter. For most films the question will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances are not ' readily subject to a narrowing construction by the state courts'.... [W]e think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court." (Id. at p. 61 [49 L.Ed.2d at p. 320].) Finally, the court held that the Detroit ordinance created no "significant deterrent effect" that would justify invocation of the First Amendment "overbreadth" doctrine. (Young, supra, 427 U.S. at pp. 59-60 [49 L.Ed.2d at pp. 319-320].) Based on the high court's reasoning in Young, supra, 427 U.S. 50, the Walnut Properties Court of Appeal rejected Walnut's First Amendment argument. The court reasoned, "It is clearly within the power of the City to provide that no motion picture theatre can be operated in a residential area or near a public school. The thrust of Justice Stevens' opinion in Young was that it was also within the City's power to classify theatres Copr. © Bancroft-Whitney and West Group 1998 Page 6 according to the content of the films exhibited, so long as that classification has a reasonable basis. The 'adult entertainment' classification is a reasonable one. [1J] Walnut has presented no evidence that the City's ordinance in any way restricts or eliminates the access to the 'adult entertainment' for those persons who desire to patronize it. In fact, Walnut operates another such theater in a different part of the City. From records which we may judicially notice, it appears that Long Beach has a number of 'adult' forms of entertainment operating within its boundaries." (Walnut Properties, supra, 100 Cal.App.3d 1018, 1023.) *23 B. Pringle's "preponderance" standard In Pringle, supra, 115 Cal.App.3d 151, the City of Covina had enacted a "non-cluster" zoning ordinance prohibiting location of adult entertainment theaters within 500 feet of residential and other enumerated areas. The ordinance employed a substantially similar definition of an adult theater as the Long Beach ordinance we review herein. (Ante, at fn. 1; see Covina Mun. Code, § 17.04.026.2.) The ordinance declared its purpose was '"to insure that adverse effects [arising from the "serious objectionable operational characteristics" of adult theaters] will not contribute to the blighting or downgrading of the surrounding neighborhood and will not unreasonably interfere with or injure nearby properties.'" (Id. at p. 154, quoting from Covina Mun. Code, § 17.04.026.2.) The plaintiffs, a neighborhood theater owner and a patron, instituted an action for declaratory and injunctive relief "alleging that the ordinance violated federal and state guarantees of freedom of speech, due process and equal protection. They claimed that the ordinance was unconstitutional on its face and, as construed to apply 'to the operation of a neighborhood theatre which shows a variety of films including a few films which, although not obscene, explicitly depict sexual activity arguably within the scope of the ordinance.' They further argued that the terms 'distinguished or characterized by an emphasis' and 'used' were too vague and chilled freedom of expression." (Pringle, supra, 115 Cal.App.3d at p. 155.) The defendant city argued that the ordinance was valid under Young, supra, 427 U.S. 50, and asserted that the term "use" should be construed as meaning '"[o]ne showing of a film described in the ordinance.'" (Pringle, supra, 115 Cal.App.3d at p. 156.) The Pringle court recognized that it was faced "with an actual, not hypothetical, claim of uncertainty deterring the exercise of protected speech" (115 Cal.App.3d at p. 160), and that it was bound to construe the legislation "if reasonably possible to preserve its constitutionality." The court first construed the ordinance's applicability regarding the dominant or essential theme of the movie. (At p. 160.) It concluded that "adult films under the ordinance include only films whose dominant or predominant character and theme is the depiction of the enumerated sexual activities or anatomical areas." (Ibid.) Next, the court determined that the word "used" in the "ordinance's definition of an adult theatre as a building 'used for presenting' sexually explicit material" rendered the ordinance vague - and hence constitutionally infirm - because it failed to indicate "what proportion of a theatre's programming would constitute 'use.'" (*24Pringle, supra, 115 Cal.App.3d at p. 161.) To preserve the constitutional validity of the ordinance (id. at pp. 158, 162), the Pringle court defined "use" under the ordinance to mean "to practice customarily," but qualified the phrase to mean "more often than not." Based on the foregoing, the court adopted a "preponderance" standard. (Id. at p. 162.) C. Post-Young federal cases Two federal decisions decided after Young, supra, 427 U.S. 50, and Pringle. supra, 115 Cal.App.3d 151, shed further light on the interpretation of language similar to that at issue here. Both involved constitutional challenges to adult entertainment zoning ordinances similar to the one examined by the court in Young. In Renton v. Playtime Theaters, Inc., supra, 475 U.S. 41, two theater operators whose theaters exhibited adult films and were located within an area proscribed by adult entertainment zoning restrictions challenged the Renton ordinance under the First and Fourteenth Amendments. The high court determined that the ordinance was a valid "time, place and manner" measure because it did "not ban adult theaters altogether, but merely provide[d] that such theaters [could] not be located within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school." (Id. at p. 46 [89 L.Ed.2d at p. 37].) Next, while recognizing that the Renton ordinance treated "theaters that specialize in adult films differently from other kinds of theaters" (id. at p. 47 [89 L.Ed.2d at p. 37]), the court observed that the regulation "was unrelated to the suppression of free expression" because it did not proscribe the content of the films, but rather was concerned predominately with the deleterious secondary effects of adult theaters on the neighboring community. (Ibid) In concluding that the ordinance was "designed to serve a substantial government interest and allow[ed] for reasonable alternative avenues of communication," Copr. © Bancroft-Whitney and West Group 1998 Page? the Renton court stated that the citys substantial interest in preserving '"the quality of urban life'" justified the enactment. (Renton, supra, 475 U.S. at p. 50 [89 L.Ed.2d at p. 39].) (5), (6) (See fn. 5.) Moreover, the court observed that it was appropriate for Renton to have relied on relevant studies conducted by other cities on the need for zoning controls of adult theaters in order to establish its "substantial government interest" in regulating adult theaters. ( Id. at pp. 51-52 [89 L.Ed.2d at p. 40-41].) [FN5] *25 FN5 The Renton court specifically stated that "Renton was entitled to rely on the experiences of Seattle and other cities, and in particular on the 'detailed findings' summarized in the Washington Supreme Court's Northend Cinema opinion, in enacting its adult theater zoning ordinance. 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." (Id. at pp. 51-52[89L.Ed.2datp.40].) Finally, the court observed that the method chosen by a city to further its substantial interests - e.g., cluster as opposed to noncluster zoning - would not affect its holding. The court noted that "cities may regulate adult theaters by dispersing them, as in Detroit, or by effectively concentrating them, as in Renton, 'It is not our function to appraise the wisdom of [the city's] decision to require adult theaters to be separated rather than concentrated in the same areas .... [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems.'" (Id. at p. 52 [89 L.Ed.2d at p. 41], quoting Young, supra, 427 U.S. at p. 71 [49 L.Ed.2d at pp. 326-327], original brackets.) (7) The court further noted that the Renton ordinance left approximately 520 acres open to use as potential adult theater locations. Accordingly, the court determined the ordinance would allow "for reasonable alternative avenues of communication." [FN6] (Renton, supra, 475 U.S. at p. 53 [89 L.Ed.2d at p. 41].) Thus, the court concluded, the ordinance represented a valid governmental response to the serious problems created by adult theaters and met the goals of the city in preserving the quality of life within the community while "satisfying the dictates of the First Amendment." (Id. at pp. 54-55 [89 L.Ed.2d at p. 42].) FN6 In response to the theater owners' (repondents) argument that there were no "commercially viable" adult theater sites within the 520 acres left available by the Renton ordinance, the court observed that "we have never suggested that the First Amendment compels the Government to ensure that adult theaters, or any other kinds of speech-related businesses for that matter, will be able to obtain sites at bargain prices.... In our view, the First Amendment requires only that Renton refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city, and the ordinance before us easily meets this requirement." (Renton, supra, 475 U.S. at p.54[89L.Ed.2datp.42].) Thereafter, in 1987, an operator of an adult motion picture establishment challenged, in federal court, the constitutionality of a San Bernardino County ordinance similar in language and substance to the "Anti-skid Row" ordinances discussed above, with the exception that the ordinance was silent as to its predominate purpose. (Tollis, Inc. v. San Bernardino County, supra, 827 F.2d 1329, 1332.) The county argued that the ordinance should be construed so as to prohibit even a "single showing" of an adultmotion picture. The theater owner responded that such construction would be unconstitutionally overbroad on its face under Young, supra, 427 U.S. 50, and Renton, supra, 475 U.S. 41. (Tollis. supra, 827 F.2d at p. 1331.) (8a) The Ninth Circuit agreed with the theater owner and found that a "single use" standard could not pass "constitutional muster as a content- neutral time, place, and manner regulation" because it could not be justified as serving a substantial governmental interest in preserving the quality of urban life. (Tollis, supra, 827 F.2d at pp. 1332-1333.) As we explain below, we believe, like the Tollis court, that so construed the Long Beach ordinance would be unconstitutional. *26 III. A constitutional zoning standard Although Tollis, supra, 827 F.2d 1329, is not dispositive, we believe it applied the correct constitutional principle first articulated in Young, supra, 427 U.S. 50, and developed by Renton, supra, 475 U.S. 41. As Tollis recognized, Renton requires the court to determine whether the ordinance, as implemented, is Copr. © Bancroft-Whitney and West Group 1998 PageS designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication. (Tollis, supra, 827 F.2d at pp. 1332-1333.) Like the Ninth Circuit, we find a "single use" standard is insufficiently tailored to serve Long Beach's stated purpose of preventing the clustering or concentration of adult motion picture theaters in any one area. Nothing in the Long Beach ordinance's statement of purpose discloses the presence of significant deleterious effects on the community arising out of a single showing of an adult film. We also agree with the Tollis court that a single showing of an adult movie does not necessarily create the "logical relationship between the evil feared and the method selected to combat it." (Id. at pp. 1332-1333.) [FN7] FN7 Real parties argue that if we were to impose a "single use" standard in this case, the procedures for obtaining a waiver would operate as an invalid prior restraint on theater owners. Because we reject the "single use" standard as unconstitutional on other grounds, we need not consider the merits of this claim. (Ib) Nor do we believe, however, that Pringle's preponderance standard is constitutionally compelled. As stated above, Pringle would allow the zoning of adult theaters only if a preponderance (construed to mean "more often than not" or "most often") of the films shown have as their dominant theme the depiction of the ordinance's enumerated sexual activities. (Pringle, supra, 115 Cal.App.3d at p. 162.) We find nothing in the high court's cases suggesting such a standard is required. Indeed, a preponderance standard violates the spirit of the high court's cases. Those decisions expressly recognize a state's legitimate interest in regulating adult entertainment establishments, and accord local governments substantial discretion in defining the scope and nature of such regulation. (Young, supra, 427 U.S. at p. 61 [49 L.Ed.2datpp. 320-321]; Renton, supra, 475 U.S. at pp. 51-52[89L.Ed.2datp. 40].) (9) (See fn. 8.), (lc) Accordingly, we conclude that Pringle, in striving to construe the term "used" within the confines of constitutional principles, established a standard that is too high. [FN8] *27 FN8 The exact basis of the Pringle decision is not entirely clear. To the extent Pringle may be interpreted as a constitutional "floor" in the traditional sense (i.e., that the municipalities are constitutionally precluded from regulating theaters showing less than a preponderance of adult films), we believe it to be inconsistent with the basic principles of Young and Renton and unduly restrictive of the municipalities' legitimate interest in regulating adult entertainment establishments. (See post, fh. 10.) It defies common sense to hold that a theater exhibiting "adult" films during less than 51 percent of its total operating time must be treated as something other than an adult establishment as that term can be reasonably understood in this context. Nonetheless, so long as the theater does not "preponderantly" or more often than not exhibit adult movies, Pringle's test allows adult entertainment theaters to be established in contravention of the purpose of the ordinance. Moreover, to the extent Pringle may be interpreted as an exercise of simple statutory construction, we find it equally flawed. The Pringle court correctly noted that vague or ambiguous terms in a legislation are to be construed, where possible, so as to preserve their constitutionality. (Pringle, supra, 115 Cal.App.3d at p. 160.) In so doing, however, the court must give the ordinance a construction which conforms both to the dictates of the Constitution and to the purposes of the enactment. Indeed, we believe the "regular and substantial course of conduct" is a reasonable interpretation of "use" under the Long Beach ordinance because it more closely conforms to the purpose of the ordinance than did Pringle's preponderance (over 50 percent) test. Accordingly, we must reject Pringle on statutory construction grounds as well. The question then becomes whether we can articulate a constitutional standard that will both implement the purpose of the ordinance and abide by the requirements of Young, supra, 427 U.S. 50, and Renton, supra, 475 U.S. 41 (i.e., that an ordinance be content-neutral and narrowly tailored to minimize only the adverse secondary effects related to adult entertainment establishments). The Long Beach ordinance was passed specifically because "[T]he city council [found] that adult entertainment businesses, because of their very nature, are recognized as having objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances, thereby having a deleterious effect upon the adjacent areas. Special locational regulation of these businesses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the Copr. © Bancroft-Whitney and West Group 1998 Page 9 surrounding neighborhoods. The primary purpose of the regulation is to prevent the concentration or clustering of these businesses in any one area." (Long Beach Mun. Ord. C-5487 § 1 (1979).) Because adult entertainment ordinances are aimed at regulating the clustered establishment of adult entertainment businesses and not at prohibiting theater owners from occasionally exhibiting an"adult" film, we conclude a "regular and substantial course of conduct". standard most appropriately defines the constitutional level of "use" for purposes of such ordinances. In so doing, we allow cities a greater flexibility in the zoning of adult entertainment theaters, thereby construing the ordinance in a constitutional manner while allowing a reasonable and practical construction in conformity with the purpose of the enactment. (Weiton v. City of Los Angeles (1976) 18 Cal.Sd 497, 506 [134 Cal.Rptr. 668, 556 P.2d 1119]; Shea v. Board of Medical Examiners (1978) 81 Cal.App.3d 564, 574 [146 CaLRptr. 653].) By interpreting the term "used" in this case to mean a "regular and substantial course of conduct," we give the ordinance a construction that is rationally tailored to support its asserted purpose of preventing neighborhood *28 blight without allowing Long Beach to use "the power to zone as a pretext for suppressing expression." (Young, supra, 427 U.S. at p. 84 [49 L.Ed.2d at p. 334].) Under this standard, zoning restrictions such as contained in the ordinance at issue here would apply to all adult entertainment theaters offering adult fare as a substantial part of their regular business, but would not apply to theaters showing only occasional or incidental adult movies. [FN9] To the extent Pringle, supra, 115 Cal.App.3d 151, conflicts with the foregoing standard, the case is disapproved. [FN10] FN9 We recognize that although our definition is not exact, it is "reasonably specific and precise, bearing in mind that unavoidable imprecision is not fatal and celestial precision is not necessary." (Hart BookStores, Inc. v. Edmisten (4th Cir. 1979) 612 F.2d 821,833, cert. den. (1980) 447 U.S. 929 [65 L.Ed.2d 1124, 100 S.Ct. 3028].) We emphasize Long Beach is free to further define the standard - for example, by making reference to a percentage of films shown, or the percentage of revenue received by the adult entertainment business. It may also amend its ordinance to impose less restrictive standards. FN10 As stated above Pringle's "preponderance" standard has been interpreted in Court of Appeal cases as requiring the showing of over 50 percent adult movies before a theater can be labeled an adult theater: Kuhns v. Board of Supervisors, supra, 128 Cal.App.3d 369, 376; Strand Property Corp. v. Municipal Court, supra, 148 Cal.App.3d 882,889-890. These cases predate Renton, supra, 475 U.S. 41, and merely rely on Pringle. To the extent they interpret Pringle as imposing a constitutional floor, we find they are no more persuasive than Pringle, supra, and are likewise disapproved. IV. Disposition (8b) The People, having alleged multiple violations of Chapter 21.51, section 21.51.030 of the Long Beach Municipal Code, each based on the unconstitutional "single use" standard, are not entitled to proceed with the action as pleaded. Accordingly, the judgment of the Court of Appeal is affirmed. [FN11] FN11 Of course, our disposition does not preclude the People from prosecuting future violations of Chapter 21.51 under the "regular and substantial course of conduct" standard discussed above. Panelli, J., Eagleson, J., and Kaufman, J., concurred. MOSK, J., Concurring and Dissenting.- I I concur in the judgment. The majority correctly strike down the "single use" standard as unconstitutional. They err, however, by jettisoning the "preponderance" standard in use for the past eight years and creating an entirely new and vague "regular and substantial course of conduct" standard. I therefore dissent from that portion of the opinion. *29 The majority read the decision of Pringle v. City of Covma(1981)115Cal.App.3dl51[171Cal.Rptr.251] too broadly; it does not establish the preponderance standard as the limit of regulatory power for every locality in the state. Moreover, it is inappropriate to weave a new standard - one which apparently is meant Copr. © Bancroft-Whitney and West Group 1998 to set a statewide regulatory floor - out of whole cloth. To do so the majority must reach out to decide this issue without the benefit of a developed record, without the benefit of briefing and, most importantly, in contravention of the spirit of United States Supreme Court decisions that emphasize the importance of allowing cities to experiment with various solutions to the serious problems created by urban blight. (See, e.g., Renton v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 52 [89 L.Ed.2d 29, 40-41, 106 S.Ct. 925] (hereafter Renton); Young v. American Mini Theatres (1976) 427 U.S. 50, 71 [49 L.Ed.2d 310,326-327,96 S.Ct. 2440] (hereafter Young).) The result is judicial legislating. Creation of the "regular and substantial course of conduct" standard is unjustified because we have been presented with no evidence that the new untested standard would ameliorate the secondary effects of adult-oriented businesses while accommodating individuals' access to communications protected by the free speech provisions of the federal and state Constitutions. II Two interests collide when a city undertakes to pass zoning laws regulating so-called "adult entertainment businesses": (1) individuals' right to receive, and owners' right to convey, nonobscene communication protected by the state and federal Constitutions, and (2) the city's interest in eradicating urban blight. Among the more serious perceived negative secondary effects of such entertainment businesses are increased crime, particularly prostitution, deteriorating neighborhoods, and economic injury to nearby businesses. (See generally, Developments in the Law - Zoning (1978) 91 Harv.L.Rev. 1427, 1551 (hereafter Zoning).) No one can doubt that these serious problems are a legitimate subjectof local government concern. Many cities across the nation are expending considerable resources to rejuvenate long-neglected downtown areas. These efforts take a variety of forms: some cities pass zoning laws that disperse regulated uses throughout the locality; other zoning laws are aimed at clustering the uses in limited areas; some cities regulate the operating hours and storefront advertising of so-called adult-oriented businesses; still others rely on public nuisance laws. The Supreme Court has repeatedly emphasized that courts must allow cities '"a reasonable opportunity to experiment with solutions to [these] admittedly serious problems.'" (*3QRenton, supra, 475 U.S. at p. 52 [89 L.Ed.2d at p. 41], quoting Young, supra, 427 U.S. at p. 71 [49 L.Ed.2d at p. 327] (plur. opn.).) But courts must also protect individuals' rights to Page 10 freedom of speech, the cornerstone of a democratic society. The federal Constitution guarantees that "Congress shall make no law... abridging the freedom of speech...." (U.S. Const., 1st Amend.) The California Constitution declares the same right in the affirmative: "Every person may freely speak, write and publish his or her sentiments on all subjects...." (Cal. Const., art. I, § 2, subd. (a).) That the communication involved here pertains to sex does not mean that it deserves less than full constitutional protection. [FN1] "[S]ex and obscenity are not synonymous.... The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern." (Roth v. United States (1957) 354 U.S. 476,487 [1 L.Ed.2d 1498,1508,77 S.Ct. 1304], fn. omitted.) These words, although written over three decades ago, still have relevance today, although to the examples must be added stage and screen presentations. FN1 Some commentators argue that constitutional protection should be afforded only to explicitly political speech, and not to scientific or literary speech. (See, e.g., Bork, Neutral Principles and Some First Amendment Problems (1971) 47 Ind.L.J. 1.) Justice Stevens, writing for the plurality in Young, suggested that "erotic materials" were not entitled to the same measure of constitutional protection as "political debate." (427 U.S. at pp. 61, 70 [49 L.Ed.2d at pp. 320-321,326].) Fortunately, these views have not prevailed. (Nimmer on Freedom of Speech (1984) § 3.01.) A majority of justices in Young concluded that nonobscene erotic materials may not be treated differently under First Amendment principles from other forms of protected expression. (427 U.S. at p. 73, fn. 1 [49 L.Ed.2d at pp. 327-328] (Powell, J., concurring), pp. 85-87 [ 49 L.Ed.2d at pp. 335-336] (Stewart, J., dissenting, joined by Brennan, Marshall and Blackmun, JJ.).) This latter position is consonant with the state constitutional dictate that persons may speak freely "on all subjects." (Cal. Const., art. I, § 2, subd. (a).) The Oregon Supreme Court reached the same conclusion in its colorful opinion in State v. Henry (1987) 302 Ore. 510, 525 [732 P.2d 9, 17-18]. Copr. © Bancroft-Whitney and West Group 1998 Page 11 Neither of the conflicting interests, the Supreme Court has explained, is absolute. A city may, under certain circumstances, pass zoning regulations that impair the First Amendment rights of theater owners and their customers. In the seminal Young case, supra, 427 U.S. 50, a sharply divided court upheld a Detroit ordinance that prohibited adult theaters from locating within 1,000 feet of any 2 other "regulated uses," such as motels, liquor stores and adult bookstores, or within 500 feet of a residential area. Preliminarily, the court refused to consider a vagueness challenge to the ordinance's definition of adult motion picture: the plaintiff theater owners lacked standing to raise the challenge because they plainly intended to exhibit the type of motion pictures clearly covered by the definition, i.e., *31 "distinguished or characterized by an emphasis on" certain listed sexual activities or anatomical areas. (Id. at p. 59, fh. 16 [49 L.Ed.2d at p. 319].) Turning to the merits, the court relied on three factors in rejecting the plaintiffs' equal protection challenge. One, the ordinance did not greatly restrict access to "lawful speech." (Young, supra, 427 U.S. at p. 71, fh. 35 [49 L.Ed.2d at p. 327] (plur. opn.), pp. 77, 79 [ 49 L.Ed.2d at pp. 330-331] (cone. opn. of Powell, J.).) Two, the intent of the city in passing the ordinance was to ameliorate the negative secondary effects of adult entertainment businesses, not to suppress "offensive" speech. (Id. at p. 71, fh. 34 [49 L.Ed.2d at p. 326] (plur. opn.), pp. 80-81 [ 49 L.Ed.2d at pp. 331-332] (cone. opn. of Powell, J.).) Three, the record disclosed a factual basis for the city's conclusion that the type of restriction it imposed would have the desired effect. ( Id. at p. 71 [49 L.Ed.2d at p. 326] (plur. opn.), p. 82 [ 49 L.Ed.2d at p. 333] (cone. opn. of Powell, J.).) In dictum, a majority of this court now create a new standard that does violence to both free speech principles and cities' interest in tailoring zoning regulations to local circumstances. If the "regular and substantial course of conduct" standard were adopted by a legislative body in the same unstudied manner as it is suggested by the majority, courts would be required to strike it down because it fails to meet the Young criteria. Because the case comes to us on demurrer there is no evidence in the record that the new standard would allow substantially unimpeded access to protected speech. Moreover, there is absolutely no factual basis for the majority's surmise that a "regular and substantial course of conduct" standard will substantially assist Long Beach or any other city to fight urban blight. In most cases, courts are not required to examine the legislative record or to inquire into legislators' motives when reviewing a statute or ordinance. When the legislation impairs the right to freedom of speech, however, "courts should continue to undertake more than a cursory, deferential examination of the factual bases of the municipality's decision. Courts sensitive to the first amendment issues at stake should insist upon a fairly complete record of the evidence available to municipal legislators at the time they acted and of the facts on which they relied ...." (Zoning, op. cit. supra, 91 Harv.L.Rev. at p. 1559; see also Schad v. Mount Ephraim (1981) 452 U.S. 61, 69-70 [68 L.Ed.2d 671, 681, 101 S.Ct. 2176].) In Christy v. City of Ann Arbor (6th Cir. 1987) 824 F.2d 489, certiorari denied (1988) 484 U.S. 1059 [98 L.Ed.2d 978, 108 S.Ct. 1013], the court examined an ordinance that defined an adult bookstore as an establishment having as a "principal activity" the sale of books or films characterized by an emphasis on certain enumerated sexual activities. "Principal activity" was in turn defined as a "use accounting for more than 20 per cent of a business." The court of *32 appeals vacated the district court's order denying the plaintiff bookseller's motion for preliminary injunction and remanded the case for further proceedings. After carefully examining the record, the court of appeals held, "Although both the Supreme Court in Renton, 106 S.Ct. at 931, and the Sixth Circuit in CLR [Corp.] v. Henline [(6th Cir. 1983)] 702 F.2d [637] at 639, have stated that a city need not conduct new independent studies to justify adult business zoning ordinances, both courts have required some relevant evidence to demonstrate that the zoning ordinance was intended to address the secondary effects of adult businesses. The burden of proof is on the city to show that more than a rational relationship exists between the ordinance and this government interest. [Citation.] In the case at hand, the district court's opinion notes only that the city 'has asserted that its purpose in passing this ordinance is to prevent the concentration of adult businesses and resultant urban blight.' [Citation.] Upon careful review of the record in this case, we find no such 'assertion,' nor do we find any evidence of a legitimate government objective for the passage of this zoning ordinance." (Christy v. City of Ann Arbor, supra, 824 F.2d at p. 493, italics added.) If a legislative body is constitutionally prohibited from zoning adult entertainment businesses absent findings that the ordinance is directed to ameliorating secondary effects, then a fortiori this court may not "legislate" a new standard absent a record from which it can be fairly inferred that such a standard will substantially serve the government objective. The majority's incursion into the legislative realm is as unnecessary as it is mischievous. The majority Copr. © Bancroft-Whitney and West Group 1998 Page 12 complain that "[t]he exact basis of the Pringle decision is not entirely clear" while suggesting that it sets a constitutionally based regulatory floor for all localities in the state, i.e., that no city may constitutionally define an adult motion picture theater as a building used to exhibit anything less than 50 percent adult films, no matter what evidence is presented to the legislative body. (Maj. opn., ante, at p. 26, fii. 8 and p. 28, fn. 10.) To the contrary, Pringle, supra, 115 Cal.App.3d 151, did not purport to hold that its preponderance standard represented any sort of constitutional floor for adult entertainment zoning ordinances in general or that a local entity was precluded from adopting any definition of an adult theater that was more restrictive than the preponderance standard. Indeed, two Court of Appeal decisions cited by the majority make this point very clear. In Kuhns v. Board of Supervisors (1982) 128 Ca1.App.3d 369 [181 CaLRptr. 1], decided just one year after Pringle, the Court of Appeal applied the predominance standard in defining the proportion of a bookstore's stock that would render the store an "adult bookstore" for *33 purposes of a similar zoning ordinance, but at the same time explicitly recognized that a local legislative body retained the authority to adopt an alternative standard, stating: "If the board of supervisors intended to allow a lesser portion it behooves them to quantify the phrase and make findings showing their figure is consonant with the governmental interest being protected." (128 Cal.App.3d at p. 376.) And in Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882 [200 CaLRptr. 47], the Court of Appeal, while applying the Pringle standard to the version of a San Diego adult entertainment zoning ordinance before it, noted that the city council had amended the ordinance after the suit in that case had been filed to define an adult motion picture theater as a theater that presents sexually explicit films or shows "for viewing on more than 7 days within any 56-consecutive-day period," and stated approvingly that while "this provision is not in issue here,... we may observe it operates in aid of the Code's certainty." (148 Cal.App.3d at p. 889, fh. 9.) Thus, Pringle, supra, 115 Cal.App.3d 151, should not be, nor has it been, interpreted as preventing a city from holding public hearings and examining studies, based either on its own or other cities' experiences, and enacting an ordinance that explicitly defines adult motion picture theaters as those exhibiting numerically more or less than a preponderance of adult films. At that point, a city may be in the correct posture to raise the claims Long Beach attempts to litigate in this case. That the majority's "regular and substantial course of conduct" standard is vague and untailored to the governmental interest at stake is hardly surprising. It does not appear in the parties' briefs, in decisions of the courts below, or indeed, in any of the reported cases in this state. While we cannot insist on "celestial precision," as the majority put it, because the ordinance touches on free speech rights and because violation of the ordinance can subject a theater owner to criminal penalties, both the locality s interests and constitutional values would be better served by a more precise definition of "adult motion picture theater" - (see, e.g., Strand Property Corp. v. Municipal Court, supra, 148 Cal.App.3d 882, 889) - that is, a definition that can be understood and easily applied by all parties without engendering endless court controversy and without deterring constitutionally protected speech that poses no substantial danger of adverse secondary effects. The choice among a variety of reasonable, alternative standards that could be used to define an "adult motion picture theater" is clearly a legislative policy decision. The appropriate legislative body, not this court, is in the best position to assess the circumstances likely to create adverse secondary effects in its own community. *34 III I must acknowledge that I share the majority's concern that the preponderance test might result in too high a standard. The solution, however, is not to invent a "regular and substantial course of conduct" standard, of dubious context and unsupported by legislative findings. To do so is to usurp the legislative role. In my view the proper course is to allow municipalities, which "often employ planning experts who can prepare studies of the probable effects of a proposed zoning ordinance" (Zoning, op. cit. supra, 91 Harv.L.Rev. at p. 1560), to analyze, to consider and possibly to experiment with various standards and, most importantly, to create a record for judicial review. If an ordinance based on such a record is thereafter challenged, we would have a sound basis for determining whether the standard violates free speech principles. [FN2] FN2 It appears that the majority do not propose that their new standard should be applied retroactively to these defendants (see maj. opn., ante, at p. 28, fn. 11). Criminal prosecution based on the past conduct of defendants - like the theater owners in this case - who may well have conducted their theater's operations in reliance both on the Pringle decision and on subsequent California cases that followed Pringle, would undoubtedly raise serious ex post facto problems. Copr. © Bancroft-Whitney and West Group 1998 Page 13 KENNARD, J., Concurring and Dissenting.- I. I concur in the majority's conclusion that the Long Beach adult entertainment zoning ordinance at issue here cannot properly be interpreted to classify a theater as an "adult motion picture theater" within the meaning of the ordinance (Long Beach Mun. Code, § 21.51.020 A.2) [FN1] solely on the basis of the theater's single showing of a sexually explicit film. This conclusion would follow even under ordinary principles of statutory interpretation, without resort to constitutional considerations. FN1 Section 21.51.020 provides in relevant part: "A. For purposes of this chapter, the adult entertainment businesses are defined as follows: "2. 'Adult motion picture theater' means an enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specified anatomical areas for observation by patrons therein." The ordinance in question is a zoning ordinance, not an obscenity ordinance. As the United States Supreme Court said in Renton v. Playtime Theaters, Inc. (1986) 475 U.S. 41, 47 [89 L.Ed.2d 29, 37, 106 S.Ct. 925], such an ordinance "is aimed not at the content of the films shown at 'adult motion picture theaters,1 but rather at the secondary effects of such theaters on the surrounding community." (Italics in original.) *35 "[It] is difficult to imagine that only a single showing ever, or only one in a year, would have any meaningful secondary effects" on the community surrounding a motion picture theater. (Tollis, Inc. v. San Bernardino County (9th Cir. 1987) 827 F.2d 1329, 1333.) Therefore, it would not be reasonable to ascribe to the drafters of the Long Beach ordinance an intent to include a theater within the ordinance's "adult motion picture theater" category on the basis of a single showing of a sexually explicit film, particularly in the absence of any indication on the face of the ordinance or any legislative history suggesting such an intent. Thus, I concur in the majority's rejection of the city's contention that the ordinance embodies a "single use" standard. II. Like Justice Mosk, however, I cannot join in that portion of the majority opinion which goes beyond the city's "single use" contention and undertakes to fashion an entirely new standard for defining an "adult motion picture theater" for purposes of the Long Beach ordinance. In so doing, the majority discards the Court of Appeal's interpretation of a virtually identical provision in Pringle v. City of Cavina (1981) 115 Cal.App.3d 151 [171 Cal.Rptr. 251]. This venture by the majority is, in my view, unwarranted. InPringle, the appellate court construed the challenged adult entertainment zoning ordinance as applying only to theaters which showed "a preponderance" of sexually explicit films. Other appellate courts have followed Pringle in interpreting similar zoning ordinances which did not contain a precise or definite standard for determining whether a theater or bookstore fell within the reach of the ordinance. (See, e.g., Kuhns v. Board of Supervisors (1982) 128 Cal.App.3d 369, 376 [181 CaLRptr. I]; Strand Property Corp. v. Municipal Court (1983) 148 Cal.App.3d 882, 889-890 [200 Cal.Rptr. 47].) During oral argument in this case, counsel for the city was asked several times whether, in the event the court disagreed with his "single use" contention, he was urging the court to interpret the ordinance as embodying some form of intermediate standard between a "single use" standard and Pringle's "preponderance" standard. Counsel responded he was going "for broke," and he did in fact argue only for a "single use" standard. Under these circumstances, we should not devise a compromise interpretation of our own design. Also, in reaching out to overturn Pringle, supra, 115 Cal.App.3d 151, the majority opinion ignores the fact that, in the span of eight years since that decision, the City of Long Beach has taken no action to modify the Pringle *36 test. If, hi the city's view, the "preponderance" standard is too easily evaded and does not adequately identify those theaters which produce detrimental secondary effects on the surrounding neighborhoods in its community, the city could have amended the language of its zoning ordinance to adopt an alternative, more stringent definition of adult theaters. [FN2] Both Kuhns and Strand, which were decided in 1982 and 1983, hold that a locality is free to adopt an alternative to the preponderance standard. (See Kuhns, supra, 128 Cal.App.3d at p. 376; Strand, supra, Copr. © Bancroft-Whitney and West Group 1998 Page 14 148 Cal.App.3d at p. 889.) Indeed, the Strand decision specifically noted that the City of San Diego had opted for this approach in September of 1982, when it amended its adult entertainment zoning ordinance to specifically define an adult theater as one which exhibits the described type of sexually explicit films '"on more than 7 days within any 56-consecutive-day period."' (See Strand, supra, 148 Cal.App.3d at p. 889, m.9.) FN2 Contrary to the implication in the majority opinion (see ante, p. 26 & fii. 8), there is nothing in Pringle which suggests that its "preponderance" standard represented any sort of constitutional "floor" for adult entertainment zoning ordinances in general. Although the Pringle court did hold that the term "used" in the ordinance at issue in that case could not constitutionally be interpreted to mean a "single use" (Pringle, supra, \ 15 Cal.App.3d at pp. 161-162), the court did not in any way intimate that local entities were constitutionally prohibited from adopting any definition of an adult theater that was more restrictive than a preponderance standard. And, as noted hereafter in the body of my concurring and dissenting opinion, other courts have not interpreted Pringle as adopting such a restriction. Here, in discarding Pringle's "preponderance" standard, the majority opinion fails to give adequate deference to the city's legislative prerogative. Finally, there is an additional reason why we should leave to the city's legislative body the task of modifying the Pringle test. Under the somewhat indefinite "regular and substantial course of conduct" standard proposed by the majority, an ordinary theater (see, e.g., Pringle, supra, 115 Cal.App.3d at p. 153 & fh. 1), which in good faith wishes to comply with the law, may have difficulty in determining whether it may show a popular, nonobscene - but sexually explicit - film once a week, once a month, or even once every two months without facing criminal charges of having turned its theater into a prohibited "adult motion picture theater." Even if the majority's proposed standard is sufficiently definite to survive a constitutional vagueness challenge - a question on which I would reserve judgment - it still appears unwise to thrust such a standard on a locality which has not itself opted for such an opaque definition. As Justice Mosk observes, such a standard will inevitably engender "endless court controversy" (see ante, p. 33) as to how many films must be shown over what period of time to satisfy the "regular and substantial course of conduct" test. Such litigation would ill-serve not only the administrative and financial interests of the locality *37 but also the legitimate constitutional interests of theater owners and theater patrons. There are numerous methods by which a city could reasonably define the category of theaters whose presence is likely to have detrimental secondary effects on the surrounding community without creating the enforcement problems which are likely to arise under the majority's view. For instance, a city could define such a theater by reference to (1) the proportion of the theater's films which are sexually explicit, (2) the number of sexually explicit films which are shown at the theater each week, each weekend or each month, (3) the nature of the films which receive top billing on the theater's marquee or in its advertisements, or (4) the percentage of the theater's revenues which are attributable to the showing of sexually explicit films. A local legislative body is better equipped than this court to determine, in light of local conditions, how best to identify those theaters which are likely to become a "blight" on the local community, and to frame a definition which local authorities can enforce and which will provide adequate guidance to those who wish to comply with the law. [FN3] FN3 Unlike Justice Mosk, I do not read the governing federal decisions as requiring a local entity to point to specific empirical evidence to support its choice of one particular definition of "adult theater" over another. The lead opinion in Young v. American Mini Theatres (1976) 427 U.S. 50, 71 [49 L.Ed.2d 310, 327, 96 S.Ct. 2440], makes it clear that a city "must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems." Of course, any definition which is chosen must not be '"a pretext for suppressing expression'" (see Renton, supra, 475 U.S. at p. 54 [89 L.Ed.2d at p. 42] [quoting Young, supra, 427 U.S. at p. 84 [49 L.Ed.2d at p. 334] (Powell, J. cone.)]), but must be selected as a reasonable means of protecting the community from adverse secondary effects. Accordingly, although I concur in the majority's rejection of the city's "single use" contention and in the affirmance of the Court of Appeal judgment, I respectfully dissent from the majority opinion insofar as Copr. © Bancroft-Whitney and West Group 1998 Page 15 it ventures beyond the city's "single use" claim. Broussard, J., concurred. The petition of real parties in interest for a rehearing was denied August 24, 1989. Mosk, J., and Broussard, J., were of the opinion that the petition should be granted. *38 Long Beach Municipal Code Chapter 21.51 Section 21.51.010 Purpose. The city council finds that adult entertainment businesses, because of their very nature, are recognized as having objectionable operational characteristics, particularly when several of them are concentrated under certain circumstances, thereby having a deleterious effect upon the adjacent areas. Special locational regulation of these businesses is necessary to insure that these adverse effects will not contribute to the blighting or downgrading of the surrounding neighborhoods. The primary purpose of the regulation is to prevent the concentration or clustering of these businesses in any one area. This chapter shall be deemed a reenactment of the preexisting ordinance on this subject matter. (Ord. C-5487 § l(part), 1979; prior code§9120.17(a)). Section 21.51.020 Definitions A. For purposes of this chapter, the adult entertainment businesses are defined as follows: genitals, flagellation or torture in the context of sexual relationship, or the use of excretory functions in the context of a sexual relationship, and any of the following depicted sexually oriented acts or conduct: analingus, buggery, coprophagy, coprophilia, cunnilingus, fellatio, necrophilia, pederasty, pedophilia, piquerism, sapphism, zooerasty; or 2. Clearly depicted human genitals in a state of sexual stimulation, arousal or tumescence; or 3. Use of human or animal masturbation, sodomy, oral copulation, coitus, ejaculation; or 4. Fondling or touching of nude human genitals, pubic region, buttocks or female breast; or 5. Masochism, erotic or sexually oriented torture, beating or the infliction of pain; or 6. Erotic or lewd touching, fondling or other contact with an animal by a human being; or 7. Human excretion, urination, menstruation, vaginal or anal irrigation. C. For purposes of this chapter, "specified anatomical areas" shall include the following: 1. Less than completely and opaquely covered human genitals, pubic region, buttock, and female breast below a point immediately above the top of the areola; and 2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered. (Ord. C-5497 § 1 (part), 1979; prior code § 9120.17(b)). Section 21.51.030 Location Restricted. 2. "Adult motion picture theater" means an enclosed building with a capacity of fifty or more persons used for presenting material distinguished or characterized by their emphasis on matter depicting, describing or relating to specified sexual activities or specific anatomical areas for observation by patrons therein. B. For purposes of this chapter, "specified sexual activities" shall include the following: 1. Actual or simulated sexual intercourse, oral copulation, anal intercourse, oral anal copulation, bestiality, direct physical stimulation of unclothed A. In those land use districts where the adult entertainment businesses regulated by this chapter would otherwise be permitted uses, it shall be unlawful to establish any such adult entertainment business if the location is: 1. Within five hundred feet of any area zoned for residential use; 2. Within one thousand feet of any other adult entertainment business; or 3. Within one thousand feet of any public or private school, park, playground, public building, church, any noncommercial establishment operated by a bona fide religious organization, or any establishment likely to be used by minors. Copr. © Bancroft-Whitney and West Group 1998 Page 16 B. The establishment of any adult entertainment business shall include the opening of such a business as a new business, the relocation of the business, or the conversion of an existing business location to any adult entertainment business use. (Ord. C-5487 § 1 (part), 1979; prior code § 9120.17(c)). Section 21.51.040 Variance. A. Any property owner or his authorized agent may apply for relief from the locational provisions of this chapter by applying for a standards variance as provided in this title. To grant such a request the following additional findings must be made: 1. That the proposed use will not be contrary to the public interest or injurious to nearby properties and that the spirit and intent of this chapter will be observed; 2. That the proposed use will not enlarge or encourage the development of a skid row area; 3. That the establishment of an additional regulated use in the area will not be contrary to any program of neighborhood conservation nor will it interfere with any program of urban renewal; and 4. That all applicable regulations of the municipal code will be observed. B. The procedure for this hearing shall be the same as that provided for a standards variance hi this title. (Ord. C-5487 § 1 (part), 1979; prior code § 9120.17(d)). *39 Cal.,1989. People v. Superior Court (Lucero) END OF DOCUMENT Copr. © Bancroft-Whitney and West Group 1998 39 Not Reported in Cal.Rptr.3d 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published (Cal. Rules of Court, Rules 976, 977) (Cite as: 2005 WL 477967 (CaLApp. 2 Dist.)) Pagel Only the Westlaw citation is currently available. California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977. Court of Appeal, Second District, Division 2, California. The PEOPLE ex rel. Rockard J. DELGADILLO, as City Attorney, etc., Plaintiff and Respondent, v. WHITEY, INCORPORATED, et al., Defendants and Appellants. No. B171422. (Los Angeles County Super. Ct. No. BC275200). March 2,2005. APPEAL from judgments of the Superior Court of Los Angeles County. Thomas L. Willhite, Judge. Affirmed. Weston, Garrou & DeWitt and Clyde DeWitt for Defendants and Appellants. Rockard J. Delgadillo, City Attorney, Debbie Lew, Assistant City Attorney, and Katharine H. MacKenzie, Deputy City Attorney, for Plaintiff and Respondent. DOI TODD, J. *1 Appellants challenge a permanent injunction issued pursuant to Penal Code [FN1] section 11227 of California's Red Light Abatement Law (RLAL) prohibiting lewd conduct at an adult bookstore and video arcade. Appellants contend (1) the injunction was improper because the nuisance had been abated, and (2) the injunctive relief granted is unconstitutionally overbroad. We disagree and affirm. FN1. Unless otherwise noted, all statutory references hereafter are to the Penal Code. FACTUAL AND PROCEDURAL BACKGROUND The Complaint On June 6, 2002, The People ex rel. Rockard J. Delgadillo as City Attorney for the City of Los Angeles (respondent), filed a complaint alleging two causes of action. The first was "for the purpose of enjoining and abating a public nuisance" under section 11225 of the RLAL, [FN2] and the second alleged that defendants' violation of the RLAL constituted unfair competition under Business & Professions Code section 17200. The complaint was brought against several defendants, including Whitey, Incorporated, which operated a 24-hour adult bookstore and video arcade known as the "Big Apple" in North Hollywood, California. [FN3] The complaint alleged that from June 1999 through April 2002 there were 105 arrests inside the video booth area of the Big Apple for solicitation and/or lewd conduct under section 647, subdivision (a). [FN4] FN2. Section 11225, subdivision (a) provides: "Every building or place used for the purpose of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, and every building or place hi or upon which acts of illegal gambling as defined by state law or local ordinance, lewdness, assignation, or prostitution, are held or occur, is a nuisance which shall be enjoined, abated, and prevented, and for which damages may be recovered, whether it is a public or private nuisance." FN3. Other appellants include Steven Wiener, the president of Whitey, Incorporated, as well as the owners and lessors of the property where the Big Apple is located. FN4. Section 647, subdivision (a) provides © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in Cal.Rptr.3d 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published (Cal. Rules of Court, Rules 976, 977) (Cite as: 2005 WL 477967 (CaLApp. 2 Dist.)) Page 2 that a person is guilty of a misdemeanor "[w]ho solicits anyone to engage in or who engages hi lewd or dissolute conduct hi any public place or in any place open to the public or exposed to public view." The Big Apple The front portion of the Big Apple, which abutted a large residential neighborhood, was dedicated primarily to the sale of adult books, magazines, videos and novelty items. The rear portion, which was beyond the view of the cashier stationed in the front, consisted of 12 individual video viewing booths, in which patrons could watch sexually explicit movies. Above the entrance to each booth was a red light that illuminated when a video was playing. Some of the booths were directly across from each other along a narrow hallway. Each booth contained a chair, two video screens, and a mirror hanging on the wall. Passersby could view the interior of the booth directly or as reflected in the mirror in the booths. At the time the complaint was filed, there were no doors or curtains on the entries to the booths. The parties agree that the Big Apple had a long history of interaction with law enforcement. The business opened sometime before the mid-1980's, and was allowed to remain in operation as a preexisting business after city ordinances were passed in the 1980's prohibiting the operation of an adult entertainment business within 500 feet of any residential zone. In 1991, the Big Apple was subject to a preliminary injunction pursuant to the RLAL. In 1996, appellant Steven Wiener agreed to implement the Los Angeles Police Department's (LAPD) suggestions for stopping lewd conduct on the premises, including hiring a security guard. The suggestions were no longer followed or enforced by the year 2000. On June 13, 2002, less than a week after the instant complaint was filed, Wiener had locking doors installed on the video booths. On August 22, 2002, the People obtained a preliminary injunction, which imposed numerous operating conditions on the Big Apple, including removal of the doors and locks on the booths. The Trial *2 In August 2003, the case proceeded to a court trial. /. The People's Case Nine LAPD vice officers testified on behalf of the People, including officers who had been to the Big Apple more than 200 times. All of the officers testified that in addition to actually observing male patrons engaged hi acts of masturbation at the Big Apple, they had frequently seen evidence of sexual activity, including discarded tissues and used condoms on the floor, as well as semen and blood on the floor and video screens. Following installation of the locking doors on the video booths, officers observed an increased amount of evidence of sexual activity, as well as an increase hi patronage. On some occasions, the doors were left ajar or not locked while patrons were inside the booths. Several officers testified that the Big Apple had a reputation as a location where male patrons could engage in lewd conduct, either alone or with each other. From the time the locks and doors were installed on the video booths in June 2002 until the time of trial hi August 2003, officers made eight arrests for lewd conduct under section 647, subdivision (a) at the Big Apple. On July 27, 2002, a patron left a booth door open while he masturbated in plain sight of an officer. On February 14, 2003, a patron stood in the open doorway to a booth and solicited oral sex from an undercover officer. On January 15, March 21 and 22, May 1, July 12 and August 6, 2003, patrons closed but did not lock the doors to the booths, and were found masturbating inside. In the January 15 incident, officers observed a male customer twice enter an occupied booth where the arrestee was masturbating. In the March 21 and 22 incidents, the arrestees ignored the presence of the plainclothes officers and continued to masturbate. In the May 1 incident, the arrestee invited the officer into the booth and despite the officer's protestation that he was uncomfortable, the arrestee not only continued to masturbate, but asked if he could © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in Cal.Rptr.3d 2005 WL 477967 (Cal.App. 2 Dist.)" Not Officially Published (Cal. Rules of Court, Rules 976, 977) (Cite as: 2005 WL 477967 (CaLApp. 2 Dist.)) PageS orally copulate the officer. In the August 6 incident, officers observed a male customer holding the door open to an occupied booth. When the customer left and the officers approached the booth, the door was not completely shut and the arrestee was masturbating inside. 2. Defense Case [FN5] FN5. While respondent has provided us with a separate notebook of the People's trial exhibits, it is difficult for us to tell which, if any, defense exhibits are included in the 19 volume record on appeal. In 1987, the City of Los Angles instituted criminal proceedings against adult bookstores in Los Angeles to enforce section 103.101, subdivision (i) of the Los Angeles Municipal Code, which prohibited booths hi video arcades from being enclosed or concealed. Ultimately, a settlement was reached under which each adult bookstore agreed to comply with the "no-doors" provision, and the Big Apple removed the doors from its video booths. In 1991, following further litigation instituted by the Big Apple and other adult bookstores challenging a zoning ordinance, the City agreed not to enforce section 103.101 of the Los Angeles Municipal Code against the Big Apple. *3 At the time of trial, each booth at the Big Apple had a locking door, on which there was a sign stating, "one person per booth." Signs posted on the wall between booths warned that no lewd acts or loitering was permitted, and that persons must leave unless they were in a booth with the doors locked and a movie running. The trial court admitted a portion of the deposition testimony of LAPD Officer Nancy Reeves, who was unavailable to testify at trial. Officer Reeves testified that for many years neighbors of the Big Apple complained at Neighborhood Crime Watch meetings of finding used condoms and seeing groups in the alley behind the bookstore. She informed the neighbors that they could write letters of complaint, and many did so. The letters, all dated June 2001, complained of decreased property values, the perpetration of sex acts by Big Apple patrons in the nearby streets, the observance of men masturbating in their parked cars, the littering of used condoms and needles on the sidewalk and streets, and the presence of pornographic litter, including photographs and sex toys, all of which were observed by neighborhood children, whose elementary school was nearby. The Judgments After issuing a 23-page statement of decision, on October 6, 2003 the trial court entered judgment in favor of the People on both causes of action. As part of the judgment, the court awarded the People its costs and attorney fees, and imposed civil penalties of $25,000 against Wiener and Whitey, Incorporated, and $5,000 against the landlord defendants. The court also issued an order of abatement and a permanent injunction. The order of abatement, issued pursuant to section 11230, [FN6] ordered that the video arcade portion of the Big Apple be closed for a period of one year, and that all fixtures and moveable property in the video arcade portion be removed and sold, with the proceeds payable as part of the costs awarded to the People. FN6. Section 11230, subdivision (a)(l) provides: "If the existence of a nuisance is established in an action as provided in this article, an order of abatement shall be entered as a part of the judgment in the case, directing the removal from the building or place of all fixtures, musical instruments and movable property used in conducting, maintaining, aiding or abetting the nuisance, and directing the sale thereof in the manner provided for the sale of chattels under execution, and the effectual closing of the building or place against its use for any purpose, and that it be kept closed for a period of one year, unless sooner released." The permanent injunction, which was nearly identical to the preliminary injunction, imposed numerous conditions to be implemented by defendants: To post © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in Cal.Rptr.3d 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published (Cal. Rules of Court, Rules 976,977) (Cite as: 2005 WL 477967 (CaLApp. 2 Dist.)) Page 4 signs prohibiting lewd conduct and minors from entering the premises; post a copy of the injunction at the entrance; cooperate with the LAPD; hire a full-time onsite manager, security guard and janitor; install video cameras that allow employees to view activity inside the booths; install and maintain adequate lighting inside and outside the Big Apple; post signs restricting parking in the adjacent lot to 30 minutes; remove trash and debris from the interior and exterior; obtain and comply with all necessary business permits, licenses, laws and orders; and join the Neighborhood Crime Watch group. In the event the video arcade section was reopened after one year, defendants were required to post additional signs prohibiting lewd conduct, to broadcast announcements on the screen of each video booth prohibiting lewd conduct, to repair any "peep holes" between booths and to inspect the booths hourly. Defendants were also prohibited from installing doors or locks on the booths or otherwise concealing the booths. Defendants filed a notice of appeal on November 3,2003. *4 On January 28, 2004, the trial court entered a second amended judgment that appears to be nearly identical to the first, except for the inclusion of costs and attorney fees in the sum of$51,199.18. Defendants filed an appeal from this amended judgment on February 11, 2004. The two appeals have been consolidated. DISCUSSION Abatement of Nuisance Appellants contend that the trial court erred in granting a permanent injunction because the nuisance had been abated by the installation of locking doors on the video booths. [FN7] Appellants argue that if lewd conduct continued to take place inside a closed and locked video booth, such conduct would not constitute a nuisance that could be enjoined under the RLAL because the conduct did not take place in public view. Appellants base this argument on their assertion that respondent's complaint rests essentially upon violations of section 647, subdivision (a), which provides that a person is guilty of a misdemeanor "[w]ho solicits anyone to engage in or who engages in lewd or dissolute conduct in any public place or in any place open to the public or exposed to public view." FN7. Appellants assert that they "were well within their rights to cure the asserted lewd conduct problems" by installing the locking doors and that "[t]he plaintiff in this case is the City of Los Angeles, which is collaterally bound by the results of prior litigation" in which the City agreed that appellants would be exempt from the "no-doors" provision of section 103.101(i) of the Los Angeles Municipal Code. Respondent construes this assertion as a separate challenge to the trial "court's authority to impose an injunctive condition requiring removal of the video booth doors by relying on the doctrine of collateral estoppel." We do not interpret appellants' assertion so broadly as to constitute such a challenge. But even if we did, we would find that appellants have " 'doubly waived' " the right to present an argument of collateral estoppel on appeal. (Children's Hospital & Medical Center v. Bontd (2002) 97 Cal.App.4th 740, 776-777.) First, appellants cite to no place in the record showing they asserted collateral estoppel below. (People v. Gillard (1997) 57 Cal.App.4ui 136, 160 ["collateral estoppel must be raised in the trial court by a timely objection ... and is waived if not raised below"]; DeRosa v. Transamerica Title Ins. Co.(1989) 213 Cal.App.3d 1390,1395, m. 1.) Second, appellants have wholly failed to support such a challenge with any reasoned argument or citations to legal authority. (Moulton Nigiiel Water Dist. v. Colombo (2003) 111 Cal.App.4th 1210, 1215 ["Contentions are waived when a party fails to support them with reasoned argument and citations to authority"].) Section 11225, subdivision (a) of the RLAL provides that "[e]very building or place used for the purpose of © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in Cal.Rptr.3d 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published (Cal. Rules of Court, Rules 976, 977) (Cite as: 2005 WL 477967 (Cal-App. 2 Dist.)) PageS ... lewdness, assignation, or prostitution, and every building or place in or upon which acts of... lewdness, assignation, or prostitution, are held or occur, is a nuisance which shall be enjoined...." Appellants note that our Supreme Court in Pryor v. Municipal Court (1979) 25 Cal.3d 238,244, defined lewd conduct under section 647, subdivision (a) as "the touching of the genitals, buttocks, or female breast, for purposes of sexual arousal, gratification, annoyance or offense, by a person who knows or should know of the presence of persons who may be offended by the conduct." In People v. Adult World Bookstore (1980) 108 Cal.App.3d 404, involving an action under the RLAL, the court accepted the Pryor court's definition of lewd conduct under section 647, subdivision (a) for purposes of defining "lewdness" under section 11225, and found it applicable to the conduct taking place in an adult bookstore and video arcade. As the court in Adult World stated, "Not everyone who enters a dirty bookstore (euphemistically adjectived 'adult'), expects to be molested, propositioned, or subjected to an open view of live homosexual acts of others.... It follows that those who perform sexual acts within view of neutral customers of the stores, or who expose themselves to them or solicit them to perform or participate in sexual activity, undeniably do so in a place open to the public and with the reasonable expectation that the customers (at least certain of them) are likely to be offended." (People v. Adult World Bookstore, supra, at p. 410, fhs. omitted.) The trial court here expressly declined to reach the issue of whether conduct which takes place within a locked video booth not open to public view constitutes "lewdness" under section 11225. Nor do we need to resolve this issue because we conclude that appellants put forth no evidence to establish that lewd conduct in public view had ceased with the installation of locking doors when police officers were not present. Once the People presented evidence that lewd acts had taken place at the Big Apple, it was incumbent upon appellants to present evidence that the nuisance had been abated. (People ex rel. Hicks v. Sarong Gals (1974) 42 Cal .App.3d 556,562.) Thus, even assuming that section 647, subdivision (a), as construed in Pryor v. Municipal Court, supra, 25 Cal.3d 238 defines lewdness for purposes of section 11225, appellants did not establish that they had put an end to such conduct. While it is true that police officers observed fewer acts of lewdness after installation of the locking doors than they had before the doors were installed, as the trial court noted, fewer instances of lewdness does not constitute abatement. A nuisance is not abated simply because it does not take place when police officers are present. *5 To the contrary, the evidence was that officers continued to make arrests for lewd conduct under section 647, subdivision (a) after the locking doors were installed. On July 27,2002, a patron was arrested after he left a booth door open while he masturbated in plain view of an officer. On February 14,2003, a patron was arrested after he stood in the open doorway to a booth and solicited oral sex from an officer. Not only officers, but any member of the public could enter a video booth when the door was unlocked. On January 15,2003, officers observed a male customer twice enter an occupied booth where an arrestee was masturbating. On August 6,2003, officers observed a male customer holding the door open to an occupied booth. When the customer left and the officers approached the booth, the door was not completely shut and the arrestee was seen masturbating inside. Moreover, in the March 21 and 22 arrest incidents, the arrestees ignored the presence of the plainclothes officers and continued to masturbate. In the May 1 incident, the arrestee invited the officer into the booth and, despite the officer's protestation that he was uncomfortable, the arrestee not only continued to masturbate, but asked if he could orally copulate the officer. In each of these instances, the arrestees knew or should have known of the presence of another person in the booth, and knew or should have known that the other person may be offended by the continued masturbation. As the trial court noted, section 11255, subdivision (a) does not require any particular number of acts within any particular time frame to prove that a place is "used for the purpose of ... lewdness" or that "acts ... of lewdness ... are held or occur" there. The evidence © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in Cal.Rptr.3d 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published (Cal. Rules of Court, Rules 976,977) (Cite as: 2005 WL 477967 (Cal.App. 2 Dist.)) Page 6 demonstrated that the Big Apple had a longstanding reputation as a location where males could engage in lewd conduct, either alone or with each other. Such a reputation encourages ongoing lewd activities, despite the presence of locking doors. Indeed, following installation of the doors, officers testified that they had seen an increase in both patronage and evidence of sexual activity in the form of semen and blood and discarded condoms and tissues. Because appellants did not establish that the nuisance had been abated by the installation of the locking doors, we conclude that the permanent injunction was properly granted. Violation of Constitutional Rights Appellants also contend that the injunction is constitutionally overbroad under both the First Amendment to the United States Constitution and article I, section 2 of the California Constitution. Appellants repeatedly assert that the injunction imposed such "draconian" and "onerous" conditions that the Big Apple was forced out of business shortly after the injunction was issued. But appellants have not identified the conditions of the injunction they consider draconian or onerous, except to state that the injunction required "the constant presence of four full-time employees in a tiny retail establishment." Nor have appellants pointed to any evidence in the record that the Big Apple has closed. Even more fatal for purposes of their argument, appellants fail to identify which conditions impact their rights to freedom of speech or why the injunction "is a far cry from the least burdensome means of addressing the perceived problem." [FN8] Because appellants have simply cited general legal principles without applying those principles to the factual circumstances presented, we are sorely tempted to find that appellants have waived this contention in its entirety. (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 699-700.) FN8. Appellants also complain that the video arcade portion of the Big Apple was closed for one year. But this closure was part of the order of abatement, not the injunction. Respondent argues that because the one-year closure order expired on October 6, 2004, any issue regarding the temporary closure is moot. Appellants argue that we should still reach the issue given the important constitutional questions raised and because they operate other similar businesses. But we need not decide the issue of mootness in light of our following conclusion that appellants have not raised any viable constitutional challenges. *6 But even reaching the merits of their contention, appellants' arguments fail. Appellants cite to Arcara v. Cloud Books, Inc. (1986) 478 U.S. 697, 699, in which a New York public nuisance statute, like California's RLAL, authorized the closure of any building for a year as a nuisance where "any lewdness, assignation, or prostitution is conducted, permitted, or carried on, continued, or exists, ..." The United States Supreme Court held that the First Amendment did not bar enforcement of the statute against an adult bookstore and video arcade where undercover officers observed instances of masturbation, fondling, oral copulation and solicitation. The court noted that "the sexual activity carried on in this case manifests absolutely no element of protected expression ." (Id. at p. 705.) "[W]e conclude the First Amendment is not implicated by the enforcement of a public health regulation of general application against the physical premises in which respondents happen to sell books." (Id. at p. 707.) In her concurring opinion, Justice O'Connor, joined by Justice Stevens, noted: "If, however, a city were to use a nuisance statute as a pretext for closing down a bookstore because it sold indecent books or because of the perceived secondary effects of having a purveyor of such books in the neighborhood, the case would clearly implicate First Amendment concerns and require analysis under the appropriate First Amendment standard of review." (Arcara v. Cloud Books, Inc., supra, 478 U.S. at. p. 708.) Relying on Justice O'Connor's concurring opinion, appellants contend that © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in Cal.Rptr.3d 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published (Cal. Rules of Court, Rules 976, 977) (Cite as: 2005 WL 477967 (CaLApp. 2 Dist.)) Page? "the facts strongly suggested that this action was triggered by what Justice O'Connor described as 'the perceived secondary effects of having a purveyor of such books in the neighborhood.' " Thus, according to appellants, the appropriate inquiry is whether the injunction is "designed to serve a substantial governmental interest and do[es] not unreasonably limit alternative avenues of communication." (Renton v. Playtime Theatres, Inc. (1986) 475 U .S. 41,47.) To support their position, appellants claim that the record "features evidence of a letter-writing campaign by neighbors, complaining that the presence of this business was ... causing other undesirable secondary effects," and that the "evidence indicated that the City would not have commenced this action but for neighbors' objections to such off-premises activity by patrons as littering, and other conduct over which Appellants had no control." But appellants fail to cite to the record to support their position. To the contrary, the deputy city attorney for the City of Los Angeles, who was the supervising attorney for the citywide nuisance abatement program, testified that the LAPD referred the matter to the City Attorney and that the litigation was "instituted... because of the lewd activity occurring at the location and not because of the content of the materials that were being sold on the premises." *7 In any event, the secondary effects of which the neighbors complained were, as the trial court noted, secondary effects of lewd conduct, not secondary effects of protected expressive activity. Moreover, the evidence established that the injunction was sought and issued because the Big Apple was being used, and had long been used, as a place to engage in lewd conduct in public view. Thus, the RLAL was not being applied here as a pretext to regulate the Big Apple's bookselling activities or the content of its videos, but to abate largely uncontrolled lewd conduct taking place at the premises. We therefore conclude that, under Arcara, the remedy in this case does not implicate the First Amendment. Appellants also contend that the injunction is improper under the California Constitution, whose free speech component has been held to be more protective of individual rights than its federal counterpart. Appellants' reliance on People ex rel. Arcara v. Cloud Books, Inc. (1986) 510 N.Y.S.2d 844 [503 N.E.2d492] (Arcara II ), is misplaced. On remand in the Arcara case, the New York Court of Appeals in Arcara II determined that New York's constitutional guarantee of freedom of expression, unlike the First Amendment, is implicated by an order closing the defendant's bookstore, and the state must therefore prove that it has chosen a course no broader than necessary to accomplish its purpose. (Id. at p. 847.) The court found that the state could not meet this burden because it had not proven that lesser sanctions, such as making actual arrests for lewd conduct or injunctive relief, had been unavailing. (Id. at p. 847.) Appellants argue that because California's free speech guarantee is similar to New York's, the injunction here is likewise too broad under Arcara II. But the cases are factually distinguishable. The injunction in Arcara II required closure of the offending bookstore, which necessarily impacted the defendant's bookselling business. By contrast, here, only the video arcade portion of the Big Apple was temporarily closed by the abatement order. Appellants were permitted to keep open the retail portion of the business, and remained free to sell and exhibit whatever materials they chose. Moreover, the conditions in the injunction are not aimed at appellants' bookselling activities. Rather, the injunction seeks to deter lewd conduct by requiring warning signs, adequate lighting, removal of the booth doors, security patrols and removal of debris. Thus, Arcara II is not applicable. Nor is People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1977) 75 Cal.App.3d 523, upon which appellants also rely, applicable. In American Art, the trial court found that the building at issue, which was used for publication and distribution of pornographic books and magazines, was also the " 'nerve center' " for arranging hundreds of acts of prostitution to take place offsite. (Id at p. 528.) The appellate court held that the RLAL was therefore applicable to the building. But the court also held that © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. Not Reported in Cal.Rptr.3d Page 8 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published (Cal. Rules of Court, Rules 976, 977) (Cite as: 2005 WL 477967 (Cal.App. 2 Dist.)) because the publishing activity constituted virtually the END OF DOCUMENT sole purpose for which the building was used and it was conceded that no obscenity was involved, closure of the building and removal of property was an unconstitutional prior restraint upon protected speech. (Id at p. 531.) In reaching this conclusion, the court did not limit its analysis to interpretation of the California Constitution, but construed it together with the First Amendment. Here, unlike the circumstances in American Art, the lewd conduct occurred on the very premises which the injunction seeks to reform. Red light abatement proceedings are directed against the offending property itself; their purpose "is to effect a reformation in the property." (People ex ret. Hicks v. Sarong Gals, supra, 42 Cal.App.3d at p. 563.) And, as noted, appellants were allowed to maintain their protected speech activities. DISPOSITION *8 The judgments are affirmed. Respondent to recover its costs on appeal. We concur: NOTT, Acting P.J., and ASHMANN-GERST, J. 2005 WL 477967 (Cal.App. 2 Dist.) Not Officially Published, (Cal. Rules of Court, Rules 976, 977) Briefs and Other Related Documents (Back to top) • 2004 WL 3260701 (Appellate Brief) Appellants' Reply Brief (Nov. 30, 2004)Original Image of this Document (PDF) • 2004 WL 2967612 (Appellate Brief) Respondent's Brief (Nov. 09,2004)Original Image of this Document (PDF) • 2004 WL 2069095 (Appellate Brief) Appellants' Opening Brief (Aug. 04, 2004)Original Image of this Document (PDF) •B171422 (Docket) (Nov. 03,2003) © 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works. 40 Pagel 117S.Ct.2329 138 L.Ed.2d 874, 65 USLW 4715, 25 Media L. Rep. 1833, 97 Cal. Daily Op. Serv. 4998,97 Daily Journal D.A.R. 8133, 97 CJC.A.R. 1050, 8 Communications Reg. (P&F) 352, 11 Fla. L. Weekly Fed. S 211 (Cite as: 521 U.S. 844, 117 S.Ct 2329) Supreme Court of the United States Janet RENO, Attorney General of the United States, et al., Appellants v. AMERICAN CIVIL LIBERTIES UNION et al. No. 96-511. Argued March 19, 1997. Decided June 26, 1997. Plaintiffs filed suit challenging constitutionality of provisions of Communications Decency Act (CDA) provisions seeking to protect minors from harmful material on the Internet. Second suit was filed by additional plaintiffs, and cases were consolidated. A three-judge panel of the United States District Court for the Eastern District of Pennsylvania, convened pursuant to the CDA, 929 F.Supp. 824, entered preliminary injunction against enforcement of provisions. Government appealed under special review provisions of the CDA. The Supreme Court, Justice Stevens, held that: (1) provisions of the CDA prohibiting transmission of obscene or indecent communications by means of telecommunications device to persons under age 18, or sending patently offensive communications through use of interactive computer service to persons under age 18, were content-based blanket restrictions on speech, and, as such, could not be properly analyzed on First Amendment challenge as a form of time, place, and manner regulation; (2) challenged provisions were facially overbroad in violation of the First Amendment; and (3) constitutionality of provision prohibiting transmission of obscene or indecent communications by means of telecommunications device to persons under age 18 would be saved from facial overbreadth challenge by severing term "or indecent" from statute pursuant to its severability clause. Affirmed. Justice O'Connor filed opinion concurring in the judgment in part and dissenting in part in which Chief Justice Rehnquist joined. West Headnotes [1] Constitutional Law €==>90.4(3) 92k90.4(3) Most Cited Cases [1] Telecommunications O=>262 372k262 Most Cited Cases Provisions of the Communications Decency Act (CDA) prohibiting transmission of obscene or indecent communications by means of telecommunications device to persons under age 18, or sending patently offensive communications through use of interactive computer service to persons under age 18, were content-based blanket restrictions on speech, and, as such, could not be properly analyzed on First Amendment challenge as a form of time, place, and manner regulation. U.S.C.A. Const. Amend. 1; Communications Act of 1934, § 223(a, d), as amended, 47 U.S.C.A. § 223(a, d). [2] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Vagueness of content-based regulation of speech raises special First Amendment concerns because of its obvious chilling effect on free speech. U.S.C.A. Const. Amend. 1. [3] Constitutional Law €=590.4(1) 92k90.4(l) Most Cited Cases Sexual expression which is indecent but not obscene is protected by the First Amendment. U.S.C.A. Const. Amend. 1. [4] Constitutional 92k90.1(l) Most Cited Cases Governmental interest in protecting children from harmful materials does not justify an unnecessarily broad suppression of speech addressed to adults. U.S.C.A. ConstAmend. 1. [5] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases Mere fact that statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit material does not foreclose inquiry into its validity under the First Amendment. U.S.C.A. Const. Amend. 1. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 [6] Constitutional Law' 92k90.4(3) Most Cited Cases [6] Telecommunications €=::'262 372k262 Most Cited Cases Provisions of the Communications Decency Act (CD A) prohibiting transmission of obscene or indecent communications by means of telecommunications device to persons under age 18, or sending patently offensive communications through use of interactive computer service to persons under age 18, were facially overbroad in violation of the First Amendment; in order to deny minors access to potentially harmful speech, provisions effectively suppressed speech that adults have a constitutional right to receive and to address to one another, with no demonstration less restrictive alternatives would be at least as effective in achieving legitimate purpose that statute was enacted to serve. U.S.C.A. Const.Amend. 1; Communications Act of 1934, § 223(a, d), as amended, 47 U.S.C.A. § 223(a, d). [7] Statutes €=^64(2) 36 Ik64(2) Most Cited Cases Constitutionality of provision of the Communications Decency Act (CDA) prohibiting transmission of obscene or indecent communications by means of telecommunications device to persons under age 18 would be saved from facial overbreadth challenge by severing term "or indecent" from statute pursuant to its severability clause, inasmuch as obscene speech can be banned totally because it enjoys no First Amendment protection. U.S.C.A. Const.Amend. 1; Communications Act of 1934, §§ 223(a), 708, as amended, 47 U.S.C.A. §§ 223(a), 608. [8] Federal Courts €^478 170Bk478 Most Cited Cases [8] Telecommunications €=^262 372k262 Most Cited Cases Under section of the Communications Decency Act (CDA) granting jurisdiction for expedited review by Supreme Court of actions challenging the CDA "on its face," Supreme Court had no authority to convert litigation challenging CDA provisions as facially overbroad into an "as-applied" challenge, in deference to CDA's severability clause; nor was it practicable to limit Court's facial overbreadth holding to a judicially defined set of specific applications, given vast array of plaintiffs, range of their expressive activities, and vagueness of the statute. U.S.C.A. Const. Amend. 1; Communications Act of 1934, § 641, as amended, 47 U.S.C.A. § 561. [9] Constitutional Law €=M8(1) 92k48(l) Most Cited Cases In considering facial challenge to constitutionality of statute, Supreme Court may impose limiting construction on statute only if it is readily susceptible to such a construction. **2331 Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321,337,26 S.Ct. 282, 287, 50 L.Ed. 499. Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in "cyberspace" and to access vast amounts of information from around the world. Title 47 U.S.C.A. § 223(a)(l)(B)(ii) (1994 ed., Supp. II) criminalizes the "knowing" transmission of "obscene or indecent" messages to any recipient under 18 years of age. Section 223(d) prohibits the "knowinfg]" sending or displaying to a person under 18 of any message "that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs." Affirmative defenses are provided for those who take "good faith,... effective ... actions" to restrict access by minors to the prohibited communications, § 223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, § 223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§ 223(a)(l) and 223(d). After making extensive findings of fact, a three-judge District Court convened pursuant to the Act entered a preliminary injunction against enforcement of both challenged provisions. The court's judgment enjoins the Government from enforcing § 223(a)(l)(B)'s prohibitions insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of § 223 (d) is unqualified because that section contains no separate reference to obscenity or child pornography. The Government appealed to this Court under the Act's special review provisions, arguing that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page3 vague. Held: The CDA's "indecent transmission" and "patently offensive display" provisions abridge "the freedom of speech" protected by the First Amendment. Pp. 2341-2351. *845 a) Although the CDA's vagueness is relevant to the First Amendment overbreadth inquiry, the judgment should be affirmed without reaching the Fifth Amendment issue. P. 2341. (b) A close look at the precedents relied on by the Government-Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195; FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073; and Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29-raises, rather than relieves, doubts about the CDA's constitutionality. The CDA differs from the various laws and orders upheld in those cases in many ways, including that it does not allow parents to consent to their children's use of restricted materials; is not limited to commercial **2332 transactions; fails to provide any definition of "indecent" and omits any requirement that "patently offensive" material lack socially redeeming value; neither limits its broad categorical prohibitions to particular tunes nor bases them on an evaluation by an agency familiar with the medium's unique characteristics; is punitive; applies to a medium that, unlike radio, receives full First Amendment protection; and cannot be properly analyzed as a form of time, place, and manner regulation because it is a content-based blanket restriction on speech. These precedents, then, do not require the Court to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. Pp. 2341-2343. (c) The special factors recognized in some of the Court's cases as justifying regulation of the broadcast media—the history of extensive Government regulation of broadcasting, see, e.g., Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 399-400, 89 S.Ct. 1794, 1811-1812, 23 L.Ed.2d 371; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638, 114 S.Ct. 2445, 2456- 2457, 129 L.Ed.2d 497; and its "invasive" nature, see Sable Communications ofCal, Inc. v. FCC, 492 U.S. 115, 128, 109 S.Ct. 2829, 2837-2838, 106 L.Ed.2d 93-are not present in cyberspace. Thus, these cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to the Internet. Pp. 2343-2344. (d) Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for First Amendment purposes. For instance, its use of the undefined terms "indecent" and "patently offensive" will provoke uncertainty among speakers about how the two standards relate to each other and just what they mean. The vagueness of such a content-based regulation, see, e.g., Gentile v. State Bar ofNev., 501 U.S. 1030, 111 S.Ct. 2720, 115 L.Ed.2d 888, coupled with its increased deterrent effect as a criminal statute, see, e.g., Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, raise special First Amendment concerns because of its obvious chilling effect on free speech. Contrary to the Government's argument, the CDA is not saved from vagueness by the fact that its "patently offensive" standardrepeats *846 the second part of the three-prong obscenity test set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-2615, 37 L.Ed.2d 419. The second Miller prong reduces the inherent vagueness of its own "patently offensive" term by requiring that the proscribed material be "specifically defined by the applicable state law." In addition, the Miller definition applies only to "sexual conduct," whereas the CDA prohibition extends also to "excretory activities" and "organs" of both a sexual and excretory nature. Each of Miller 's other two prongs also critically limits the uncertain sweep of the obscenity definition. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing alone, is not vague. The CDA's vagueness undermines the likelihood that it has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. Pp. 2344-2346. (e) The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. Although the Government has an interest in protecting children from potentially harmful materials, see, e.g., Ginsberg, 390 U.S., at 639, 88 S.Ct., at 1280, the CDA pursues that interest by suppressing a large amount of speech that adults have a constitutional right to send and receive, see, e.g., Sable, 492 U.S., at 126, 109 S.Ct., at 2836- 2837. Its breadth is wholly unprecedented. The CDA's burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act's legitimate purposes. See, e.g., id., at 126,109 S.Ct., at 2836-2837. The Government has not proved otherwise. On the other hand, the District Court found that currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing material which the parents believe is inappropriate will soon be widely available. Moreover, the arguments in this Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Court referred to possible alternatives such as requiring that indecent **2333 material be "tagged" to facilitate parental control, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet differently from others. Particularly in the light of the absence of any detailed congressional findings, or even hearings addressing the CDA's special problems, the Court is persuaded that the CDA is not narrowly tailored. Pp. 2346-2348. (f) The Government's three additional arguments for sustaining the CDA's affirmative prohibitions are rejected. First, the contention that the Act is constitutional because it leaves open ample "alternative channels" of communication is unpersuasive because the CDA regulates speech on the basis of its content, so that a "time, place, and manner" analysis is inapplicable. See, e.g., *847ConsolidatedEdison Co. of N.Y. v. Public Serv. Comm'n ofN.Y., 447 U.S. 530, 536, 100 S.Ct. 2326, 2332-2333, 65 L.Ed.2d 319. Second, the assertion that the CDA's "knowledge" and "specific person" requirements significantly restrict its permissible application to communications to persons the sender knows to be under 18 is untenable, given that most Internet forums are open to all comers and that even the strongest reading of the "specific person" requirement would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech. Finally, there is no textual support for the submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's prohibitions. Pp. 2348-2349. (g) The § 223(e)(5) defenses do not constitute the sort of "narrow tailoring" that would save the CDA. The Government's argument that transmitters may take protective "good faith actio[n]" by "tagging" then- indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software, is illusory, given the requirement that such action be "effective": The proposed screening software does not currently exist, but, even if it did, there would be no way of knowing whether a potential recipient would actually block the encoded material. The Government also failed to prove that § 223(b)(5)'s verification defense would significantly reduce the CDA's heavy burden on adult speech. Although such verification is actually being used by some commercial providers of sexually explicit material, the District Court's findings indicate that it is not economically feasible for most noncommercial speakers. Pp. 2349-2350. (h) The Government's argument that this Court should Page 4 preserve the CDA's constitutionality by honoring its severability clause, § 608, and by construing nonseverable terms narrowly, is acceptable in only one respect. Because obscene speech may be banned totally, see Miller, 413 U.S., at 18,93 S.Ct., at 2611-2612, and § 223(a)'s restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, the Court can sever the term "or indecent" from the statute, leaving the rest of § 223(a) standing. Pp. 2350-2351. (i) The Government's argument that its "significant" interest in fostering the Internet's growth provides an independent basis for upholding the CDA's constitutionality is singularly unpersuasive. The dramatic expansion of this new forum contradicts the factual basis underlying this contention: that the unregulated availability of "indecent and patently offensive" material is driving people away from the Internet. P. 2351. 929 F.Supp. 824, affirmed. *848 STEVENS, J., delivered the opinion of the Court, in which SCALIA, KENNEDY, SOUTER, THOMAS, GINSBURG, and BREYER, JJ.,joined. O'CONNOR, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., joined, post, p. 2351. Seth P. Waxman, Washington, DC, for appellants. Bruce J. Ennis, Washington, DC, for appellees. **2334 *849 Justice STEVENS delivered the opinion of the Court. At issue is the constitutionality of two statutory provisions enacted to protect minors from "indecent" and "patently offensive" communications on the Internet. Notwithstanding the legitimacy and importance of the congressional goal of protecting children from harmful materials, we agree with the three-judge District Court that the statute abridges "the freedom of speech" protected by the First Amendment. [FN1] FN1. "Congress shall make no law ... abridging the freedom of speech." U.S. Const., Amdt. 1. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS The District Court made extensive findings of fact, most of which were based on a detailed stipulation prepared by the parties. See929F.Supp. 824,830-849 (E.D.Pa.1996). [FN2] The findings describe the character and the dimensions of the Internet, the availability of sexually explicit material in that medium, and the problems confronting age verification for recipients of Internet communications. Because those findings provide the underpinnings for the legal issues, we begin with a summary of the undisputed facts. FN2. The Court made 410 findings, including 356 paragraphs of the parties' stipulation and 54 findings based on evidence received in open court. See 929 F.Supp., at 830, n. 9, 842, n. 15. The Internet The Internet is an international network of interconnected computers. It is the outgrowth of what began in 1969 as a *850 military program called "ARPANET," [FN3] which was designed to enable computers operated by the military, defense contractors, and universities conducting defense-related research to communicate with one another by redundant channels even if some portions of the network were damaged in a war. While the ARPANET no longer exists, it provided an example for the development of a number of civilian networks that, eventually linking with each other, now enable tens of millions of people to communicate with one another and to access vast amounts of information from around the world. The Internet is "a unique and wholly new medium of worldwide human communication." [FN4] FN3. An acronym for the network developed by the Advanced Research Project Agency. FN4. Id, at 844 (finding 81). The Internet has experienced "extraordinary growth." [FN5] The number of "host" computers-those that store information and relay communications- increased from about 300 in 1981 to approximately 9,400,000 by the time of the trial in 1996. Roughly 60% of these hosts are located in the United States. About 40 million people used the Internet at the time of trial, a number that is expected to mushroom to 200 million by 1999. FN5. M, at 831 (finding 3). Individuals can obtain access to the Internet from many different sources, generally hosts themselves or entities with a host affiliation. Most colleges and universities provide access for their students and faculty; many corporations provide their employees with access through an office network; many communities and local libraries provide free access; and an increasing number of storefront "computer coffee shops" provide access for a small hourly fee. Several major national "online services" such as America Online, CompuServe, the Microsoft Network, and Prodigy offer access to their own extensive proprietary networks as well as a link to the much larger resources of the Internet. These commercial *851 online services had almost 12 million individual subscribers at the time of trial. Anyone with access to the Internet may take advantage of a wide variety of communication and information retrieval methods. These methods are constantly evolving and difficult to categorize precisely. But, as presently constituted, those most relevant to this case are electronic mail (e-mail), automatic mailing list services ("mail exploders," sometimes referred to as "listservs"), "newsgroups," "chat rooms," and the "World Wide Web." All of these methods can be used to transmit text; most can transmit sound, pictures, and moving video images. Taken together, these tools constitute a unique medium~**2335 known to its users as "cyberspace"~located in no particular geographical location but available to anyone, anywhere in the world, with access to the Internet. E-mail enables an individual to send an electronic message-generally akin to a note or letter—to another individual or to a group of addressees. The message is generally stored electronically, sometimes waiting for the recipient to check her "mailbox" and sometimes making its receipt known through some type of prompt. A mail exploder is a sort of e-mail group. Subscribers can send messages to a common e-mail address, which then forwards the message to the group's other subscribers. Newsgroups also serve groups of regular participants, but these postings may be read by others as well. There are thousands of such groups, each serving to foster an exchange of information or opinion on a particular topic running the gamut from, say, the music of Wagner to Balkan politics to AIDS prevention to the Chicago Bulls. About 100,000 new messages are posted every day. In most newsgroups, postings are automatically purged at regular intervals. In addition to posting a message that can be read later, two or more individuals wishing to communicate more immediately can enter a chat room to engage in real-time Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 dialogue—in other words, by typing messages to one another that appear almost immediately on *852 the others' computer screens. The District Court found that at any given time "tens of thousands of users are engaging in conversations on a huge range of subjects." [FN6] It is "no exaggeration to conclude that the content on the Internet is as diverse as human thought." [FN7] FN6. Id, at 835 (finding 27). FN7. Id., at 842 (finding 74). The best known category of communication over the Internet is the World Wide Web, which allows users to search for and retrieve information stored in remote computers, as well as, in some cases, to communicate back to designated sites. In concrete terms, the Web consists of a vast number of documents stored in different computers all over the world. Some of these documents are simply files containing information. However, more elaborate documents, commonly known as Web "pages," are also prevalent. Each has its own address~"rather like a telephone number." [FN8] Web pages frequently contain information and sometimes allow the viewer to communicate with the page's (or "site's") author. They generally also contain "links" to other documents created by that site's author or to other (generally) related sites. Typically, the links are either blue or underlined text—sometimes images. FN8. Id, at 836 (finding 36). Navigating the Web is relatively straightforward. A user may either type the address of a known page or enter one or more keywords into a commercial "search engine" in an effort to locate sites on a subject of interest. A particular Web page may contain the information sought by the "surfer," or, through its links, it may be an avenue to other documents located anywhere on the Internet. Users generally explore a given Web page, or move to another, by clicking a computer "mouse" on one of the page's icons or links. Access to most Web pages is freely available, but some allow access only to those who have purchased the right from a *853 commercial provider. The Web is thus comparable, from the readers' viewpoint, to both a vast library including millions of readily available and indexed publications and a sprawling mall offering goods and services. From the publishers' point of view, it constitutes a vast platform from which to address and hear from a worldwide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can "publish" information. Publishers include government agencies, educational institutions, commercial entities, advocacy groups, and individuals. [FN9] Publishers may either **2336 make their material available to the entire pool of Internet users, or confine access to a selected group, such as those willing to pay for the privilege. "No single organization controls any membership in the Web, nor is there any single centralized point from which individual Web sites or services can be blocked from the Web." [FN10] FN9. "Web publishing is simple enough that thousands of individual users and small community organizations are using the Web to publish their own personal 'home pages,' the equivalent of individualized newsletters about that person or organization, which are available to everyone on the Web." Id, at 837 (finding 42). FN10. Id, at 838 (finding 46). Sexually Explicit Material Sexually explicit material on the Internet includes text, pictures, and chat and "extends from the modestly titillating to the hardest-core." [FN11] These files are created, named, and posted in the same manner as material that is not sexually explicit, and may be accessed either deliberately or unintentionally during the course of an imprecise search. "Once a provider posts its content on the Internet, it cannot prevent that content from entering any community." [FN12] Thus, for example, FN11. Id, at 844 (finding 82). FN12. Ibid, (finding 86). *854 "when the UCR/California Museum of Photography posts to its Web site nudes by Edward Weston and Robert Mapplethorpe to announce that its new exhibit will travel to Baltimore and New York City, those images are available not only in Los Angeles, Baltimore, and New York City, but also in Cincinnati, Mobile, or Beijing—wherever Internet Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? users live. Similarly, the safer sex instructions that Critical Path posts to its Web site, written in street language so that the teenage receiver can understand them, are available not just in Philadelphia, but also in Provo and Prague." [FN13] Nevertheless, the evidence indicates that "a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available." [FN 19] FN13. Ibid, (finding 85). Some of the communications over the Internet that originate in foreign countries are also sexually explicit. [FN14] FN14. Id., at 848 (finding 117). Though such material is widely available, users seldom encounter such content accidentally. "A document's title or a description of the document will usually appear before the document itself... and in many cases the user will receive detailed information about a site's content before he or she need take the step to access the document. Almost all sexually explicit images are preceded by warnings as to the content." [FN15] For that reason, the "odds are slim" that a user would enter a sexually explicit site by accident. [FN16] Unlike communications received by radio or television, "the receipt of information on the Internet requires a series of affirmative steps more deliberate and directed than merely turning a dial. A child requires some sophistication and some ability to read to retrieve material and thereby to use the Internet unattended." [FN17] FN15. Id., at 844-845 (finding 88). FN16. Ibid. FN17. Id., at 845 (finding 89). Systems have been developed to help parents control the material that may be available on a home computer with Internet *855 access. A system may either limit a computer's access to an approved list of sources that have been identified as containing no adult material, it may block designated inappropriate sites, or it may attempt to block messages containing identifiable objectionable features. "Although parental control software currently can screen for certain suggestive words or for known sexually explicit sites, it cannot now screen for sexually explicit images." [FN18] FN18. Id., at 842 (finding 72). FN19. Ibid, (finding 73). Age Verification The problem of age verification differs for different uses of the Internet. The District Court categorically determined that there "is no effective way to determine the identity or the age of a user who is accessing material through e-mail, mail exploders, newsgroups **2337 or chat rooms." [FN20] The Government offered no evidence that there was a reliable way to screen recipients and participants in such forums for *856 age. Moreover, even if it were technologically feasible to block minors' access to newsgroups and chat rooms containing discussions of art, politics, or other subjects that potentially elicit "indecent" or "patently offensive" contributions, it would not be possible to block their access to that material and "still allow them access to the remaining content, even if the overwhelming majority of that content was not indecent." [FN21] FN20. Id., at 845 (finding 90): "An e-mail address provides no authoritative information about the addressee, who may use an e-mail 'alias' or an anonymous remailer. There is also no universal or reliable listing of e-mail addresses and corresponding names or telephone numbers, and any such listing would be or rapidly become incomplete. For these reasons, there is no reliable way in many instances for a sender to know if the e-mail recipient is an adult or a minor. The difficulty of e-mail age verification is compounded for mail exploders such as listservs, which automatically send information to all e-mail addresses on a sender's list. Government expert Dr. Olsen agreed that no current technology could give a speaker assurance that only adults were listed in a particular mail exploder's mailing list." Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 8 FN21./6/W. (finding 93). Technology exists by which an operator of a Web site may condition access on the verification of requested information such as a credit card number or an adult password. Credit card verification is only feasible, however, either in connection with a commercial transaction in which the card is used, or by payment to a verification agency. Using credit card possession as a surrogate for proof of age would impose costs on non-commercial Web sites that would require many of them to shut down. For that reason, at the time of the trial, credit card verification was "effectively unavailable to a substantial number of Internet content providers." 929 F.Supp. at 846 (finding 102). Moreover, the imposition of such a requirement "would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing any blocked material." [FN22] FN22. Id., at 846 (finding 102). Commercial pornographic sites that charge their users for access have assigned them passwords as a method of age verification. The record does not contain any evidence concerning the reliability of these technologies. Even if passwords are effective for commercial purveyors of indecent material, the District Court found that an adult password requirement would impose significant burdens on noncommercial sites, both because they would discourage users from accessing their sites and because the cost of creating and *857 maintaining such screening systems would be "beyond their reach." [FN23] FN23. Id., at 847 (findings 104-106): "At least some, if not almost all, non-commercial organizations, such as the ACLU, Stop Prisoner Rape or Critical Path AIDS Project, regard charging listeners to access their speech as contrary to their goals of making their materials available to a wide audience free of charge. received many complaints from its members about HotWired's registration system, which requires only that a member supply a name, e-mail address and self-created password. There is concern by commercial content providers that age verification requirements would decrease advertising and revenue because advertisers depend on a demonstration that the sites are widely available and frequently visited." In sum, the District Court found: "Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18. The burdens imposed by credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers." Ibid, (finding 107). II The Telecommunications Act of 1996, Pub.L. 104-104, 110 Stat. 56, was an unusually important legislative enactment. As stated on the first of its 103 pages, its primary purpose was to reduce regulation and encourage "**2338 the rapid deployment of new telecommunications technologies." The major components of the statute have nothing to do with the Internet; they were designed to promote competition in the local telephone service market, the multichannel video market, *858 and the market for over-the-air broadcasting. The Act includes seven Titles, six of which are the product of extensive committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives. By contrast, Title V—known as the "Communications Decency Act of 1996" (CDA)--contains provisions that were either added in executive committee after the hearings were concluded or as amendments offered during floor debate on the legislation. An amendment offered in the Senate was the source of the two statutory provisions challenged in this case. [FN24] They are informally described *859 as the "indecent transmission" provision and the "patently offensive display" provision. [FN25] "There is evidence suggesting that adult users, particularly casual Web browsers, would be discouraged from retrieving information that required use of a credit card or password. Andrew Anker testified that HotWired has FN24. See Exon Amendment No. 1268, 141 Cong. Rec. 15536 (1995). See also id., at 15505. This amendment, as revised, became § 502 of the Telecommunications Act of 1996, 110 Stat. 133,47 U.S.C. §§ 223(a)- (e) (1994 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 9 ed., Supp. II). Some Members of the House of Representatives opposed the Exon Amendment because they thought it "possible for our parents now to child-proof the family computer with these products available in the private sector." They also thought the Senate's approach would "involve the Federal Government spending vast sums of money trying to define elusive terms that are going to lead to a flood of legal challenges while our kids are unprotected." These Members offered an amendment intended as a substitute for the Exon Amendment, but instead enacted as an additional section of the Act entitled "Online Family Empowerment." See 110 Stat. 137, 47 U.S.C. § 230 (1994 ed., Supp. II); 141 Cong. Rec. 27881 (1995). No hearings were held on the provisions that became law. See S.Rep. No. 104-23, p. 9. (1995). After the Senate adopted the Exon: amendment, however, its Judiciary Committee did conduct a one-day hearing on "Cyberporn and Children." In his opening statement at that hearing, Senator Leahy observed: "It really struck me in your opening statement when you mentioned, Mr. Chairman, that it is the first ever hearing, and you are absolutely right. And yet we had a major debate on the floor, passed legislation overwhelmingly on a subject involving the Internet, legislation that could dramatically change-some would say even wreak havoc—on the Internet. The Senate went in willy-nilly, passed legislation, and never once had a hearing, never once had a discussion other than an hour or so on the floor." Cyberporn and Children: The Scope of the Problem, The State of the Technology, and the Need for Congressional Action, Hearing on S. 892 before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 7-8 (1995). FN25. Although the Government and the dissent break § 223(d)(l) into two separate "patently offensive" and "display" provisions, we follow the convention of both parties below, as well as the District Court's order and opinion, in describing § 223(d)(l) as one provision. The first, 47 U.S.C. § 223(a) (1994 ed., Supp. II), prohibits the knowing transmission of obscene or indecent messages to any recipient under 18 years of age. It provides in pertinent part: "(a) Whoever- "(1) in interstate or foreign communications— "(B) by means of a telecommunications device knowingly— "(i) makes, creates, or solicits, and "(ii) initiates the transmission of, "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent, knowing that the recipient of the communication is under 18 years of age, regardless of whether the maker of such communication placed the call or initiated the communication; "(2) knowingly permits any telecommunications facility under his control to be used for any activity prohibited by paragraph (1) with the intent that it be used for such activity, "shall be fined under Title 18, or imprisoned not more than two years, or both." The second provision, § 223 (d), prohibits the knowing sending or displaying of patently offensive messages in a manner that is available to a person under 18 years of age. It provides: *860 "(d) Whoever- "(1) in interstate or foreign communications knowingly- **2339 "(A) uses an interactive computer service to send to a specific person or persons under 18 years of age, or "(B) uses any interactive computer service to display in a manner available to a person under 18 years of age, "any comment, request, suggestion, proposal, image, or other communication that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs, regardless of whether the user of such service placed the call or initiated the communication; or "(2) knowingly permits any telecommunications facility under such person's control to be used for an activity prohibited by paragraph (1) with the intent that it be used for such activity, "shall be fined under Title 18, or imprisoned not more than two years, or both." The breadth of these prohibitions is qualified by two affirmative defenses. See § 223(e)(5). [FN26] One covers those who take "good faith, reasonable, effective, and appropriate actions" to restrict access by minors to the prohibited communications. § 223(e)(5)(A). The other covers those who *861 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 10 restrict access to covered material by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number or code. § 223(e)(5)(B). FN26. In full, § 223(e)(5) provides: "(5) It is a defense to a prosecution under subsection (a)(l)(B) or (d) of this section, or under subsection (a)(2) of this section with respect to the use of a facility for an activity under subsection (a)(l)(B) of this section that a person- "(A) has taken, in good faith, reasonable, effective, and appropriate actions under the circumstances to restrict or prevent access by minors to a communication specified in such subsections, which may involve any appropriate measures to restrict minors from such communications, including any method which is feasible under available technology; or "(B) has restricted access to such communication by requiring use of a verified credit card, debit account, adult access code, or adult personal identification number." Ill On February 8, 1996, immediately after the President signed the statute, 20 plaintiffs [FN27] filed suit against the Attorney General of the United States and the Department of Justice challenging the constitutionality of §§ 223(a)(l) and 223(d). A week later, based on his conclusion that the term "indecent" was too vague to provide the basis for a criminal prosecution, District Judge Buckwalter entered a temporary restraining order against enforcement of § 223(a)(l)(B)(ii) insofar as it applies to indecent communications. A second suit was then filed by 27 additional plaintiffs, [FN28] the two cases *862 were consolidated, and a three-judge District Court was convened pursuant to § 561 of the CD A. [FN29] After an evidentiary hearing, that court entered a preliminary injunction against enforcement of both of the challenged provisions. Each of the three judges wrote a separate opinion, but their judgment was unanimous. FN27. American Civil Liberties Union; Human Rights Watch; Electronic Privacy Information Center; Electronic Frontier Foundation; Journalism Education Association; Computer Professionals for Social Responsibility; National Writers Union; Clarinet Communications Corp.; Institute for Global Communications; Stop Prisoner Rape; AIDS Education Global Information System; Bibliobytes; Queer Resources Directory; Critical Path AIDS Project, Inc.; Wildcat Press, Inc.; Declan McCullagh dba Justice on Campus; Brock Meeks dba Cyberwire Dispatch; John Troyer dba The Safer Sex Page; Jonathan Wallace dba The Ethical Spectacle; and Planned Parenthood Federation of America, Inc. FN28. American Library Association; America Online, Inc.; American Booksellers Association, Inc.; American Booksellers Foundation for Free Expression; American Society of Newspaper Editors; Apple Computer, Inc.; Association of American Publishers, Inc.; Association of Publishers, Editors and Writers; Citizens Internet Empowerment Coalition; Commercial Internet Exchange Association; CompuServe Incorporated; Families Against Internet Censorship; Freedom to Read Foundation, Inc.; Health Sciences Libraries Consortium; Hotwired Ventures LLC; Interactive Digital Software Association; Interactive Services Association; Magazine Publishers of America; Microsoft Corporation; The Microsoft Network, L.L. C.; National Press Photographers Association; Netcom On-Line Communication Services, Inc.; Newspaper Association of America; Opnet, Inc.; Prodigy Services Company; Society of Professional Journalists; and Wired Ventures, Ltd. FN29. 110 Stat. 142-143, note following 47 U.S.C. § 223 (1994 ed., Supp. II). **2340 Chief Judge Sloviter doubted the strength of the Government's interest in regulating "the vast range of online material covered or potentially covered by the CDA," but acknowledged that the interest was "compelling" with respect to some of that material. 929 F.Supp., at 853. She concluded, nonetheless, that the statute "sweeps more broadly than necessary and thereby chills the expression of adults" and that the terms "patently offensive" and "indecent" were "inherently vague." Id, at 854. She also determined that the affirmative defenses were not "technologically or economically feasible for most providers," specifically considering and rejecting an argument that providers could avoid liability by "tagging" their Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 11 material in a manner that would allow potential readers to screen out unwanted transmissions. Id., at 856. Chief Judge Sloviter also rejected the Government's suggestion that the scope of the statute could be narrowed by construing it to apply only to commercial pornographers. Id., at 854-855. Judge Buckwalter concluded that the word "indecent" in § 223(a)( 1 )(B) and the terms "patently offensive" and "in context" in § 223(d)(l) were so vague that criminal enforcement of either section would violate the "fundamental constitutional principle" of "simple fairness," id., at 861, and the specific protections of the First and Fifth Amendments, id., at 858. He found no statutory basis for the Government's argument that the challenged provisions would be applied only to "pornographic" materials, noting that, unlike obscenity, "indecency has not been defined to exclude works of serious literary, artistic, political or scientific value." Id., at 863. *863 Moreover, the Government's claim that the work must be considered patently offensive "in context" was itself vague because the relevant context might "refer to, among other things, the nature of the communication as a whole, the time of day it was conveyed, the medium used, the identity of the speaker, or whether or not it is accompanied by appropriate warnings." Id., at 864. He believed that the unique nature of the Internet aggravated the vagueness of the statute. Id., at 865, n. 9. Judge Dalzell's review of "the special attributes of Internet communication" disclosed by the evidence convinced him that the First Amendment denies Congress the power to regulate the content of protected speech on the Internet. Id., at 867. His opinion explained at length why he believed the CDA would abridge significant protected speech, particularly by noncommercial speakers, while "[p]erversely, commercial pornographers would remain relatively unaffected." Id., at 879. He construed our cases as requiring a "medium-specific" approach to the analysis of the regulation of mass communication, id., at 873, and concluded that the Internet—as "the most participatory form of mass speech yet developed," id., at 883--is entitled to "the highest protection from governmental intrusion," ibid. [FN30] FN30. See also 929 F.Supp., at 877: "Four related characteristics of Internet communication have a transcendent importance to our shared holding that the CDA is unconstitutional on its face. We explain these characteristics in our Findings of fact above, and I only rehearse them briefly here. First, the Internet presents very low barriers to entry. Second, these barriers to entry are identical for both speakers and listeners. Third, as a result of these low barriers, astoundingly diverse content is available on the Internet. Fourth, the Internet provides significant access to all who wish to speak in the medium, and even creates a relative parity among speakers." According to Judge Dalzell, these characteristics and the rest of the District Court's findings "lead to the conclusion that Congress may not regulate indecency on the Internet at all." Ibid. Because appellees do not press this argument before this Court, we do not consider it. Appellees also do not dispute that the Government generally has a compelling interest in protecting minors from "indecent" and "patently offensive" speech. *864 The judgment of the District Court enjoins the Government from enforcing the prohibitions in § 223(a)(l)(B) insofar as they relate to "indecent" communications, but expressly preserves the Government's right to investigate and prosecute the obscenity or child pornography activities prohibited therein. The injunction against enforcement of §§ 223(d)(l) and (2) is unqualified because those provisions contain no separate reference to obscenity or child pornography. The Government appealed under the CDA's special review provisions, § 561, 110 Stat. 142-143, **2341 and we noted probable jurisdiction, see 519 U.S. 1025, 117 S.Ct. 554,136 L.Ed.2d 436 (1996). In its appeal, the Government argues that the District Court erred in holding that the CDA violated both the First Amendment because it is overbroad and the Fifth Amendment because it is vague. While we discuss the vagueness of the CDA because of its relevance to the First Amendment overbreadth inquiry, we conclude that the judgment should be affirmed without reaching the Fifth Amendment issue. We begin our analysis by reviewing the principal authorities on which the Government relies. Then, after describing the overbreadth of the CDA, we consider the Government's specific contentions, including its submission that we save portions of the statute either by severance or by fashioning judicial limitations on the scope of its coverage. IV In arguing for reversal, the Government contends that the CDA is plainly constitutional under three of our prior decisions: (1) Ginsberg v. New York, 390 U.S. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 12 629, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968); (2) FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978); and (3) Renton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). A close look at these cases, however, raises—rather than relieves-doubts concerning the constitutionality of the CD A. In Ginsberg, we upheld the constitutionality of a New York statute that prohibited selling to minors under 17 years of age material that was considered obscene as to them even if not obscene as to adults. We rejected the defendant's broad *865 submission that "the scope of the constitutional freedom of expression secured to a citizen to read or see material concerned with sex cannot be made to depend on whether the citizen is an adult or a minor." 390 U.S., at 636, 88 S.Ct., at 1279. In rejecting that contention, we relied not only on the State's independent interest in the well-being of its youth, but also on our consistent recognition of the principle that "the parents' claim to authority hi their own household to direct the rearing of their children is basic in the structure of our society." [FN31] FN31. 390 U.S., at 639, 88 S.Ct., at 1280. WequotedfromPrwcev. Massachusetts, 32! U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944): "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." In four important respects, the statute upheld in Ginsberg was narrower than the CD A. First, we noted hi Ginsberg that "the prohibition against sales to minors does not bar parents who so desire from purchasing the magazines for their children." Id, at 639, 88 S.Ct., at 1280. Under the CD A, by contrast, neither the parents' consent—nor even their participation-- in the communication would avoid the application of the statute. [FN32] Second, the New York statute applied only to commercial transactions, id, at 647,88 S.Ct., at 1284-1285, whereas the CDA contains no such limitation. Third, the New York statute cabined its definition of material that is harmful to minors with the requirement that it be "utterly without redeeming social importance for minors." Id, at 646, 88 S.Ct., at 1284. The CDA fails to provide us with any definition of the term " indecent" as used in § 223 (a)( 1) and, importantly, omits any requirement that the "patently offensive" material covered by § 223(d) lack serious literary, artistic, political, or scientific value. Fourth, the New York statute defined a minor as a person under the age *866 of 17, whereas the CDA, in applying to all those under 18 years, includes an additional year of those nearest majority. FN32. Given the likelihood that many e-mail transmissions from an adult to a minor are conversations between family members, it is therefore incorrect for the partial dissent to suggest that the provisions of the CDA, even hi this narrow area, "are no different from the law we sustained hi Ginsberg." Post, at 2355. In Pacifica, we upheld a declaratory order of the Federal Communications Commission, holding that the broadcast of a recording of a 12-minute monologue entitled "Filthy Words" that had previously been delivered to a live audience "could have been the subject of administrative sanctions." 438 U.S., at 730, 98 S.Ct., at 3030 (**2342 internal quotation marks omitted). The Commission had found that the repetitive use of certain words referring to excretory or sexual activities or organs "hi an afternoon broadcast when children are in the audience was patently offensive" and concluded that the monologue was indecent "as broadcast." Id, at 735,98 S.Ct., at 3033. The respondent did not quarrel with the finding that the afternoon broadcast was patently offensive, but contended that it was not "indecent" within the meaning of the relevant statutes because it contained no prurient appeal. After rejecting respondent's statutory arguments, we confronted its two constitutional arguments: (1) that the Commission's construction of its authority to ban indecent speech was so broad that its order had to be set aside even if the broadcast at issue was unprotected; and (2) that since the recording was not obscene, the First Amendment forbade any abridgment of the right to broadcast it on the radio. In the portion of the lead opinion not joined by Justices Powell and Blackmun, the plurality stated that the First Amendment does not prohibit all governmental regulation that depends on the content of speech. Id, at 742- 743, 98 S.Ct., at 3036-3037. Accordingly, the availability of constitutional protection for a vulgar and offensive monologue that was not obscene depended on the context of the broadcast. Id, at 744-748, 98 S.Ct., at 3037-3040. Relying on the premise that "of all forms of communication" broadcasting had received the most limited First Amendment protection, id, at 748-749,98 S.Ct., at 3039-3040, the Court concluded that the ease with which children may obtain access to broadcasts, *867 "coupled with the concerns recognized in Ginsberg" justified special treatment of indecent Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 13 broadcasting. Id., at 749-750, 98 S.Ct., at 3040-3041. As with the New York statute at issue in Ginsberg, there are significant differences between the order upheld in Pacifica and the CD A. First, the order in Pacifica, issued by an agency that had been regulating radio stations for decades, targeted a specific broadcast that represented a rather dramatic departure from traditional program content in order to designate when~rather than whether~it would be permissible to air such a program in that particular medium. The CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet. Second, unlike the CDA, the Commission's declaratory order was not punitive; we expressly refused to decide whether the indecent broadcast "would justify a criminal prosecution." 438 U.S., at 750, 98 S.Ct., at 3041. Finally, the Commission's order applied to a medium which as a matter of history had "received the most limited First Amendment protection," id., at 748, 98 S.Ct., at 3040, in large part because warnings could not adequately protect the listener from unexpected program content. The Internet, however, has no comparable history. Moreover, the District Court found that the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material. [ 1 ] In Renton, we upheld a zoning ordinance that kept adult movie theaters out of residential neighborhoods. The ordinance was aimed, not at the content of the films shown in the theaters, but rather at the "secondary effects"~such as crime and deteriorating property values-that these theaters fostered: " 'It is th[e] secondary effect which these zoning ordinances attempt to avoid, not the dissemination of "offensive" speech.' " 475 U.S., at 49, 106 S.Ct, at 930 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, n. 34, 96 S.Ct. 2440, 2453, n. 34, 49 L.Ed.2d 310 (1976)). According to the Government, the CDA is constitutional because *868 it constitutes a sort of "cyberzoning" on the Internet. But the CDA applies broadly to the entire universe of cyberspace. And the purpose of the CDA is to protect children from the primary effects of "indecent" and "patently offensive" speech, rather than any "secondary" effect of such speech. Thus, the CDA is a content-based blanket restriction on speech, and, as such, cannot be "properly analyzed as a form of time, place, and manner regulation." 475 U.S., at 46, 106 S.Ct, at 928. See also Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 1163, 99 L.Ed.2d 333 (1988)**2343 ("Regulations that focus on the direct impact of speech on its audience" are not properly analyzed under Renton ); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134, 112 S.Ct. 2395, 2403, 120 L.Ed.2d 101 (1992) ("Listeners' reaction to speech is not a content-neutral basis for regulation"). These precedents, then, surely do not require us to uphold the CDA and are fully consistent with the application of the most stringent review of its provisions. In Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557, 95 S.Ct. 1239, 1245-1246, 43 L.Ed.2d 448 (1975), we observed that "[e]ach medium of expression ... may present its own problems." Thus, some of our cases have recognized special justifications for regulation of the broadcast media that are not applicable to other speakers, see Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969); FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct 3026, 57 L.Ed.2d 1073 (1978). In these cases, the Court relied on the history of extensive Government regulation of the broadcast medium, see, e.g., Red Lion, 395 U.S., at 399-400, 89 S.Ct, at 1811-1812; the scarcity of available frequencies at its inception, see, e.g., Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 637-638,114 S.Ct. 2445,2456-2457,129 L.Ed.2d 497 (1994); and its "invasive" nature, see Sable Communications ofCal., Inc. v. FCC, 492 U.S. 115, 128, 109 S.Ct. 2829, 2837-2838, 106 L.Ed.2d 93 (1989). Those factors are not present in cyberspace. Neither before nor after the enactment of the CDA have the vast democratic forums of the Internet been subject to the type *869 of government supervision and regulation that has attended the broadcast industry. [FN33] Moreover, the Internet is not as "invasive" as radio or television. The District Court specifically found that "[c]ommunications over the Internet do not 'invade' an individual's home or appear on one's computer screen unbidden. Users seldom encounter content 'by accident.'" 929 F.Supp., at 844 (finding 88). It also found that "[a]lmost all sexually explicit images are preceded by warnings as to the content," and cited testimony that" 'odds are slim' that a user would come across a sexually explicit sight by accident." Ibid. FN33. Cf. Pacifica Foundation v. FCC, 556 F.2d 9, 36 (C.A.D.C.1977) (Levanthal, J., dissenting), rev'd, FCC v. Pacifica Foundation, 438 U.S. 726, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978). When Pacifica was Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 14 decided, given that radio stations were allowed to operate only pursuant to federal license, and that Congress had enacted legislation prohibiting licensees from broadcasting indecent speech, there was a risk that members of the radio audience might infer some sort of official or societal approval of whatever was heard over the radio, see 556 F.2d, at 37, n. 18. No such risk attends messages received through the Internet, which is not supervised by any federal agency. interactive, real-time dialogue. Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. As the District Court found, "the content on the Internet is as diverse as human thought." 929 F.Supp., at 842 (finding 74). We agree with its conclusion that our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium. We distinguished Pacifica in Sable, 492 U.S., at 128, 109 S.Ct., at 2837-2838, on just this basis. In Sable, a company engaged in the business of offering sexually oriented prerecorded telephone messages (popularly known as "dial-a-porn") challenged the constitutionality of an amendment to the Communications Act of 1934 that imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. We held that the statute was constitutional insofar as it applied to obscene messages but invalid as applied to indecent messages. In attempting to justify the complete ban and criminalization of indecent commercial telephone messages, the Government relied on Pacifica, arguing that the ban was necessary to prevent children from gaining access to such messages. We agreed that "there is a compelling interest in protecting the physical and psychological well-being of minors" which extended to shielding them from indecent messages that are not obscene by adult standards, *870492 U.S., at 126, 109 S.Ct., at 2836- 2837, but distinguished our "emphatically narrow holding" in Pacifica because it did not involve a complete ban and because it involved a different medium of communication, id., at 127, 109 S.Ct., at 2837. We explained that "the dial-it medium requires the listener to take affirmative steps to receive the communication." Id., at 127-128, 109 S.Ct., at 2837. "Placing a telephone **2344 call," we continued, "is not the same as turning on a radio and being taken by surprise by an indecent message." Id., at 128, 109 S.Ct, at 2837. Finally, unlike the conditions that prevailed when Congress first authorized regulation of the broadcast spectrum, the Internet can hardly be considered a "scarce" expressive commodity. It provides relatively unlimited, low-cost capacity for communication of all kinds. The Government estimates that "[a]s many as 40 million people use the Internet today, and that figure is expected to grow to 200 million by 1999." [FN34] This dynamic, multifaceted category of communication includes not only traditional print and news services, but also audio, video, and still images, as well as FN34. Juris. Statement 3 (citing 929 F.Supp., at 831 (finding 3)). VI Regardless of whether the CDA is so vague that it violates the Fifth Amendment, the many ambiguities concerning the scope of its coverage render it problematic for purposes of the First Amendment. For instance, each of the two parts *871 of the CDA uses a different linguistic form. The first uses the word "indecent," 47 U.S.C. § 223(a) (1994 ed., Supp. II), while the second speaks of material that "in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs," § 223(d). Given the absence of a definition of either term, [FN35] this difference in language will provoke uncertainty among speakers about how the two standards relate to each other [FN36] and just what they mean. [FN37] Could a speaker confidently assume that a serious discussion about birth control practices, homosexuality, the First Amendment issues raised by the Appendix to our Pacifica opinion, or the consequences of prison rape would not violate the CDA? This uncertainty undermines the likelihood that the CDA has been carefully tailored to the congressional goal of protecting minors from potentially harmful materials. FN35. "Indecent" does not benefit from any textual embellishment at all. "Patently offensive" is qualified only to the extent that it involves "sexual or excretory activities or organs" taken "in context" and "measured by contemporary community standards." FN36. See Gozlon-Peretz v. United States, 498 U.S. 395, 404, 111 S.Ct. 840, 846-847, 112 L.Ed.2d 919 (1991) ("[W]here Congress includes particular language in one section of a statute but omits it in another section of the Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 15 same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion and exclusion" (internal quotation marks omitted)). FN37. The statute does not indicate whether the "patently offensive" and "indecent" determinations should be made with respect to minors or the population as a whole. The Government asserts that the appropriate standard is "what is suitable material for minors." Reply Brief for Appellants 18, n. 13 (citing Ginsberg v. New York, 390 U.S. 629, 633, 88 S.Ct. 1274, 1276-1277, 20 L.Ed.2d 195 (1968)). But the Conferees expressly rej ected amendments that would have imposed such a "harmful to minors" standard. See S. Conf. Rep. No. 104-230, p. 189 (1996) (S.Conf.Rep.), 142 Cong. Rec. HI 145, HI 165-H1166 (Feb. 1,1996). The Conferees also rejected amendments that would have limited the proscribed materials to those lacking redeeming value. See ibid. [2] The vagueness of the CDA is a matter of special concern for two reasons. First, the CDA is a content-based regulation of speech. The vagueness of such a regulation raises *872 special First Amendment concerns because of its obvious chilling effect on free speech. See, e.g., Gentile v. State Bar ofNev., 501 U.S. 1030,1048-1051,111 S.Ct. 2720,2731-2733,115 L.Ed.2d 888 (1991). Second, the CDA is a criminal statute. In addition to the opprobrium and stigma of a criminal conviction, the CDA threatens violators **2345 with penalties including up to two years in prison for each act of violation. The severity of criminal sanctions may well cause speakers to remain silent rather than communicate even arguably unlawful words, ideas, and images. See, e.g., Dombrowski v. Pfister, 380 U.S. 479, 494, 85 S.Ct. 1116, 1125, 14 L.Ed.2d 22 (1965). As a practical matter, this increased deterrent effect, coupled with the "risk of discriminatory enforcement" of vague regulations, poses greater First Amendment concerns than those implicated by the civil regulation reviewed in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996). The Government argues that the statute is no more vague than the obscenity standard this Court established in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). But that is not so. In Miller, this Court reviewed a criminal conviction against a commercial vendor who mailed brochures containing pictures of sexually explicit activities to individuals who had not requested such materials. Id., at 18, 93 S.Ct., at 2611 -2612. Having struggled for some time to establish a definition of obscenity, we set forth in Miller the test for obscenity that controls to this day: "(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id, at 24, 93 S.Ct, at 2615 (internal quotation marks and citations omitted). *873 Because the CDA's "patently offensive" standard (and, we assume, arguendo, its synonymous "indecent" standard) is one part of the three-prong Miller test, the Government reasons, it cannot be unconstitutionally vague. The Government's assertion is incorrect as a matter of fact. The second prong of the Miller test~the purportedly analogous standard—contains a critical requirement that is omitted from the CDA: that the proscribed material be "specifically defined by the applicable state law." This requirement reduces the vagueness inherent in the open-ended term "patently offensive" as used in the CDA. Moreover, the Miller definition is limited to "sexual conduct," whereas the CDA extends also to include (1) "excretory activities" as well as (2) "organs" of both a sexual and excretory nature. The Government's reasoning is also flawed. Just because a definition including three limitations is not vague, it does not follow that one of those limitations, standing by itself, is not vague. [FN38] Each of Miller 's additional two prongs--(l) that, taken as a whole, the material appeal to the "prurient" interest, and (2) that it "lac[k] serious literary, artistic, political, or scientific value"-critically limits the uncertain sweep of the obscenity definition. The second requirement is particularly important because, unlike the "patently offensive" and "prurient interest" criteria, it is not judged by contemporary community standards. See Pope v. Illinois, 481 U.S. 497, 500, 107 S.Ct. 1918, 1920-1921, 95 L.Ed.2d 439 (1987). This "societal value" requirement, absent in the CDA, allows appellate courts to impose some limitations and regularity on the definition by setting, as a matter of law, a national floor for socially redeeming value. The Government's contention that courts will be able to give such legal limitations to the CDA's standards is belied by Miller's own rationale for having juries determine whether Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 16 material *874 is "patently offensive" according to community standards: that such questions are essentially ones of fact. [FN39] FN3 8. Even though the word "trunk," standing alone, might refer to luggage, a swimming suit, the base of a tree, or the long nose of an animal, its meaning is clear when it is one prong of a three-part description of a species of gray animals. FN39. 413 U.S., at 30, 93 S.Ct., at 2618 (Determinations of "what appeals to the 'pruri ent interest' or is 'patently offensive'... are essentially questions of fact, and our Nation is simply too big and too diverse for this Court to reasonably expect that such standards could be articulated for all 50 States in a single formulation, even assuming the prerequisite consensus exists"). The CD A, which implements the "contemporary community standards" language of Miller, thus conflicts with the Conferees' own assertion that the CD A was intended "to establish a uniform national standard of content regulation." S. Conf. Rep., at 191. First Amendment." Sable, 492 U.S., at 126, 109 S.Ct., at 2836. See also Carey v. Population Services Int'l, 431 U.S. 678, 701, 97 S.Ct. 2010, 2024, 52 L.Ed.2d 675 (1977) ("[W]here obscenity is not involved, we have consistently held that the *875 fact that protected speech may be offensive to some does not justify its suppression"). Indeed, Pacifica itself admonished that "the fact that society may find speech offensive is not a sufficient reason for suppressing it." 438 U.S., at 745, 98 S.Ct, at 3038. [4] It is true that we have repeatedly recognized the governmental interest in protecting children from harmful materials. See Ginsberg, 390 U.S., at 639, 88 S.Ct., at 1280; Pacifica, 438 U.S., at 749, 98 S.Ct., at 3040. But that interest does not justify an unnecessarily broad suppression of speech addressed to adults. As we have explained, the Government may not "reduc[e] the adult population ... to ... only what is fit for children." Denver, 518 U.S., at 759,116 S.Ct., at 2393 (internal quotation marks omitted) (quoting Sable, 492 U.S., at 128, 109 S.Ct., at 2837-2838). [FN40] "[R]egardless of the strength of the government's interest" in protecting children, "[t]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox." Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74-75, 103 S.Ct. 2875, 2884-2885, 77 L.Ed.2d 469 (1983). **2346 In contrast to Miller and our other previous cases, the CDA thus presents a greater threat of censoring speech that, in fact, falls outside the statute's scope. Given the vague contours of the coverage of the statute, it unquestionably silences some speakers whose messages would be entitled to constitutional protection. That danger provides further reason for insisting that the statute not be overly broad. The CD A's burden on protected speech cannot be justified if it could be avoided by a more carefully drafted statute. VII We are persuaded that the CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another. That burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve. [3] In evaluating the free speech rights of adults, we have made it perfectly clear that "[sjexual expression which is indecent but not obscene is protected by the FN40. Accord, Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 525-526, 1 L.Ed.2d 412 (1957) (ban on sale to adults of books deemed harmful to children unconstitutional); Sable Communications ofCal., Inc. v. FCC, 492 U.S. 115, 128, 109 S.Ct. 2829, 2837-2838, 106 L.Ed.2d 93 (1989) (ban on "dial-a-porn" messages unconstitutional); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 73, 103 S.Ct. 2875, 2883-2884, 77 L.Ed.2d 469 (1983) (ban on mailing of unsolicited advertisement for contraceptives unconstitutional). [5] The District Court was correct to conclude that the CDA effectively resembles the ban on "dial-a-porn" invalidated in Sable. 929 F.Supp., at 854. In Sable, 492 U.S., at 129,109 S.Ct., at 2838, this Court rejected the argument that we should defer to the congressional judgment that nothing less than a total ban would be effective in preventing enterprising youngsters from gaining access to indecent communications. Sable thus made clear that the mere fact that a statutory regulation of speech was enacted for the important purpose of protecting children from exposure to sexually explicit Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 17 material does not foreclose inquiry into its validity. [FN41 ] As we pointed out last *876 Term, that **2347 inquiry embodies an "overarching commitment" to make sure that Congress has designed its statute to accomplish its purpose "without imposing an unnecessarily great restriction on speech." Denver, 518 U.S., at 741,116 S.Ct, at 2385. FN41. The lack of legislative attention to the statute at issue in Sable suggests another parallel with this case. Compare 492 U.S., at 129-130, 109 S.Ct, at 2838 ("[A]side from conclusory statements during the debates by proponents of the bill, as well as similar assertions in hearings on a substantially identical bill the year before, ... the congressional record presented to us contains no evidence as to how effective or ineffective the FCC's most recent regulations were or might prove to be.... No Congressman or Senator purported to present a considered judgment with respect to how often or to what extent minors could or would circumvent the rules and have access to dial-a-porn messages" (footnote omitted)), with n. 24, supra. [6] In arguing that the CDA does not so diminish adult communication, the Government relies on the incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication. The findings of the District Court make clear that this premise is untenable. Given the size of the potential audience for most messages, in the absence of a viable age verification process, the sender must be charged with knowing that one or more minors will likely view it. Knowledge that, for instance, one or more members of a 100-person chat group will be a minor—and therefore that it would be a crime to send the group an indecent message—would surely burden communication among adults. [FN42] FN42. The Government agrees that these provisions are applicable whenever "a sender transmits a message to more than one recipient, knowing that at least one of the specific persons receiving the message is a minor." Opposition to Motion to Affirm and Reply to Juris. Statement 4- 5, n. 1. The District Court found that at the time of trial existing technology did not include any effective method for a sender to prevent minors from obtaining access to its communications on the Internet without also denying access to adults. The Court found no effective way to determine the age of a user who is accessing material through e-mail, mail exploders, newsgroups, or chat rooms. 929 F.Supp., at 845 (findings 90-94). As a practical matter, the Court also found *877 that it would be prohibitively expensive for noncommercial-as well as some commercial-speakers who have Web sites to verify that their users are adults. Id, at 845-848 (findings 95-116). [FN43] These limitations must inevitably curtail a significant amount of adult communication on the Internet. By contrast, the District Court found that "[djespite its limitations, currently available user-based software suggests that a reasonably effective method by which parents can prevent their children from accessing sexually explicit and other material which parents may believe is inappropriate for their children will soon be widely available." Id, at 842 (finding 73) (emphases added). FN43. The Government asserts that "[t]here is nothing constitutionally suspect about requiring commercial Web site operators... to shoulder the modest burdens associated with their use." Brief for Appellants 35. As a matter of fact, however, there is no evidence that a "modest burden" would be effective. The breadth of the CDA's coverage is wholly unprecedented. Unlike the regulations upheld in Ginsberg and Pacifica, the scope of the CDA is not limited to commercial speech or commercial entities. Its open-ended prohibitions embrace all nonprofit entities and individuals posting indecent messages or displaying them on their own computers in the presence of minors. The general, undefined terms "indecent" and "patently offensive" cover large amounts of nonpornographic material with serious educational or other value. [FN44] Moreover, the "community standards" criterion as applied to the Internet means that any communication available *878 to a nation wide audience will be judged by the standards of the community most likely to be offended by the message. [FN45] The regulated subject matter includes **2348 any of the seven "dirty words" used in the Pacifica monologue, the use of which the Government's expert acknowledged could constitute a felony. See Olsen Testimony, Tr. Vol. V, 53:16-54:10. It may also extend to discussions about prison rape or safe sexual practices, artistic images that include nude subjects, and arguably the card catalog of the Carnegie Library. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 18 FN44. Transmitting obscenity and child pornography, whether via the Internet or other means, is already illegal under federal law for both adults and juveniles. See 18 U.S.C. §§ 1464-1465 (criminalizing obscenity); § 2251 (criminalizing child pornography). In fact, when Congress was considering the CD A, the Government expressed its view that the law was unnecessary because existing laws already authorized its ongoing efforts to prosecute obscenity, child pornography, and child solicitation. See 141 Cong. Rec. 16026 (1995) (letter from Kent Markus, Acting Assistant Attorney General, U.S. Department of Justice, to Sen. Leahy). FN45. Citing Church ofLukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520,113 S.Ct. 2217, 124 L.Ed.2d 472 (1993), among other cases, appellees offer an additional reason why, in their view, the CDA fails strict scrutiny. Because so much sexually explicit content originates overseas, they argue, the CDA cannot be "effective." Brief for Appellees American Library Association et al. 33-34. This argument raises difficult issues regarding the intended, as well as the permissible scope of, extraterritorial application of the CDA. We find it unnecessary to address those issues to dispose of this case. For the purposes of our decision, we need neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all "indecent" and "patently offensive" messages communicated to a 17-year-old-no matter how much value the message may contain and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute. Under the CDA, a parent allowing her 17-year-old to use the family computer to obtain information on the Internet that she, in her parental judgment, deems appropriate could face a lengthy prison term. See 47 U.S.C. § 223(a)(2) (1994 ed., Supp. II). Similarly, a parent who sent his 17-year-old college freshman information on birth control via e-mail could be incarcerated even though neither he, his child, nor anyone in their home community found the material "indecent" or "patently offensive," if the college town's community thought otherwise. *879 The breadth of this content-based restriction of speech imposes an especially heavy burden on the Government to explain why a less restrictive provision would not be as effective as the CDA. It has not done so. The arguments in this Court have referred to possible alternatives such as requiring that indecent material be "tagged" in a way that facilitates parental control of material coming into their homes, making exceptions for messages with artistic or educational value, providing some tolerance for parental choice, and regulating some portions of the Internet—such as commercial Web sites—differently from others, such as chat rooms. Particularly in the light of the absence of any detailed findings by the Congress, or even hearings addressing the special problems of the CDA, we are persuaded that the CDA is i\ot narrowly tailored if that requirement has any meaning at all. VIII In an attempt to curtail the CDA's facial overbreadth, the Government advances three additional arguments for sustaining the Act's affirmative prohibitions: (1) that the CDA is constitutional because it leaves open ample "alternative channels" of communication; (2) that the plain meaning of the CDA's "knowledge" and "specific person" requirement significantly restricts its permissible applications; and (3) that the CDA's prohibitions are "almost always" limited to material lacking redeeming social value. The Government first contends that, even though the CDA effectively censors discourse on many of the Internet's modalities—such as chat groups, newsgroups, and mail exploders-it is nonetheless constitutional because it provides a "reasonable opportunity" for speakers to engage in the restricted speech on the World Wide Web. Brief for Appellants 39. This argument is unpersuasive because the CDA regulates speech on the basis of its content. A "time, place, and manner" analysis is therefore inapplicable. See *88QConsolidated Edison Co. ofN. Y. v. Public Serv. Comm'n ofN.Y., 447 U.S. 530, 536, 100 S.Ct. 2326, 2332-2333, 65 L.Ed.2d 319 (1980). It is thus immaterial whether such speech would be feasible on the Web (which, as the Government's own expert acknowledged, would cost up to $10,000 if the speaker's interests were not accommodated by an existing Web site, not including costs for data base management and age verification). The Government's position is equivalent to arguing that a statute could ban leaflets on certain subjects as long as individuals are free to publish **2349 books. In invalidating a number of laws that banned leafletting on the streets regardless of their content, we explained that "one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Schneider v. State of Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 19 N.J. (Town oflrvington), 308 U.S. 147, 163, 60 S.Ct. 146, 151-152, 84 L.Ed. 155 (1939). The Government also asserts that the "knowledge" requirement of both § § 223 (a) and (d), especially when coupled with the "specific child" element found in § 223 (d), saves the CDA from overbreadth. Because both sections prohibit the dissemination of indecent messages only to persons known to be under 18, the Government argues, it does not require transmitters to "refrain from communicating indecent material to adults; they need only refrain from disseminating such materials to persons they know to be under 18." Brief for Appellants 24. This argument ignores the fact that most Internet forums— including chat rooms, newsgroups, mail exploders, and the Web—are open to all comers. The Government's assertion that the knowledge requirement somehow protects the communications of adults is therefore untenable. Even the strongest reading of the "specific person" requirement of § 223(d) cannot save the statute. It would confer broad powers of censorship, in the form of a "heckler's veto," upon any opponent of indecent speech who might simply log on and inform the would-be discoursers that his 17-year-old child~a "specific person... under 18 years of age," 47 U.S.C.A. § 223(d)(l)(A) (Supp.1997)- would be present. *881 Finally, we find no textual support for the Government's submission that material having scientific, educational, or other redeeming social value will necessarily fall outside the CDA's "patently offensive" and "indecent" prohibitions. See also n. 37, supra. IX The Government's three remaining arguments focus on the defenses provided in § 223(e)(5). [FN46] First, relying on the "good faith, reasonable, effective, and appropriate actions" provision, the Government suggests that "tagging" provides a defense that saves the constitutionality of the CDA. The suggestion assumes that transmitters may encode their indecent communications in a way that would indicate their contents, thus permitting recipients to block their reception with appropriate software. It is the requirement that the good-faith action must be "effective" that makes this defense illusory. The Government recognizes that its proposed screening software does not currently exist. Even if it did, there is no way to know whether a potential recipient will actually block the encoded material. Without the impossible knowledge that every guardian in America is screening for the "tag," the transmitter could not reasonably rely on its action to be "effective." FN46. For the full text of § 223(e)(5), see n. 26, supra. For its second and third arguments concerning defenses-which we can consider together—the Government relies on the latter half of § 223(e)(5), which applies when the transmitter has restricted access by requiring use of a verified credit card or adult identification. Such verification is not only technologically available but actually is used by commercial providers of sexually explicit material. These providers, therefore, would be protected by the defense. Under the findings of the District Court, however, it is not economically feasible for most noncommercial speakers to employ such verification. Accordingly, this defense would not significantlynarrow*882 the statute's burden on noncommercial speech. Even with respect to the commercial pornographers that would be protected by the defense, the Government failed to adduce any evidence that these verification techniques actually preclude minors from posing as adults. [FN47] Given that the risk of criminal sanctions "hovers over each content provider, like the proverbial sword of **2350 Damocles," [FN48] the District Court correctly refused to rely on unproven future technology to save the statute. The Government thus failed to prove that the proffered defense would significantly reduce the heavy burden on adult speech produced by the prohibition on offensive displays. FN47. Thus, ironically, this defense may significantly protect commercial purveyors of obscene postings while providing little (or no) benefit for transmitters of indecent messages that have significant social or artistic value. FN48. 929 F.Supp., at 855-856. We agree with the District Court's conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of "narrow tailoring" that will save an otherwise patently invalid unconstitutional provision. In Sable, 492 U.S., at 127, 109 S.Ct., at 2837, we remarked that the speech restriction at issue there amounted to " 'bum[ing] the house to roast the pig.' " The CDA, casting a far darker shadow over free speech, threatens to torch a large segment of the Internet community. X Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 20 [7] At oral argument, the Government relied heavily on its ultimate fall-back position: If this Court should conclude that the CDA is insufficiently tailored, it urged, we should save the statute's constitutionality by honoring the severability clause, see 47 U.S.C. § 608, and construing nonseverable terms narrowly. In only one respect is this argument acceptable. A severability clause requires textual provisions that can be severed. We will follow § 608's guidance by leaving constitutional *883 textual elements of the statute intact in the one place where they are, in fact, severable. The "indecency" provision, 47 U.S.C. § 223(a) (1994 ed., Supp. II), applies to "any comment, request, suggestion, proposal, image, or other communication which is obscene or indecent." (Emphasis added.) Appellees do not challenge the application of the statute to obscene speech, which, they acknowledge, can be banned totally because it enjoys no First Amendment protection. SeeMiller, 413 U.S., at 18, 93 S.Ct., at 2611-2612. As set forth by the statute, the restriction of "obscene" material enjoys a textual manifestation separate from that for "indecent" material, which we have held unconstitutional. Therefore, we will sever the term "or indecent" from the statute, leaving the rest of § 223(a) standing. In no other respect, however, can § 223(a) or § 223(d) be saved by such a textual surgery. The Government also draws on an additional, less traditional aspect of the CDA's severability clause, 47 U.S.C. § 608, which asks any reviewing court that holds the statute facially unconstitutional not to invalidate the CDA in application to " other persons or circumstances" that might be constitutionally permissible. It further invokes this Court's admonition that, absent "countervailing considerations," a statute should "be declared invalid to the extent it reaches too far, but otherwise left intact." Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503-504, 105 S.Ct. 2794, 2801-2802, 86 L.Ed.2d 394 (1985). There are two flaws in this argument. [8] First, the statute that grants our jurisdiction for this expedited review, § 561 of the Telecommunications Act of 1961, note following 47 U.S.C. § 223 (1994 ed., Supp. II), limits that jurisdictional grant to actions challenging the CDA "on its face." Consistent with § 561, the plaintiffs who brought this suit and the three-judge panel that decided it treated it as a facial challenge. We have no authority, in this particular posture, to convert this litigation into an "as-applied" challenge. Nor, given the vast array of plaintiffs, the range of their expressive activities, and the vagueness of the statute, *884 would it be practicable to limit our holding to a judicially defined set of specific applications. [9] Second, one of the "countervailing considerations" mentioned in Brockett is present here. In considering a facial challenge, this Court may impose a limiting construction on a statute only if it is "readily susceptible" to such a construction. Virginia v. American Bookseller's Assn., Inc., 484 U.S. 383, 397, 108 S.Ct. 636, 645, 98 L.Ed.2d 782 (1988). See also Erznoznikv. Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276,45 L.Ed.2d 125 (1975) ("readily subject" to narrowing construction). The open-ended character of the CDA provides no guidance what ever for limiting its coverage. **2351 This case is therefore unlike those in which we have construed a statute narrowly because the text or other source of congressional intent identified a clear line that this Court could draw. Cf., e.g., Brockett, 472 U.S., at 504-505, 105 S.Ct., at 2802 (invalidating obscenity statute only to the extent that word "lust" was actually or effectively excised from statute); United States v. Grace, 461 U.S. 171, 180-183, 103 S.Ct. 1702,1708-1710,75 L.Ed.2d 736 (1983) (invalidating federal statute banning expressive displays only insofar as it extended to public sidewalks when clear line could be drawn between sidewalks and other grounds that comported with congressional purpose of protecting the building, grounds, and people therein). Rather, our decision in United States v. National Treasury Employees Union, 513 U.S. 454,479, n. 26, 115 S.Ct. 1003, 1019, n. 26, 130 L.Ed.2d 964 (1995), is applicable. In that case, we declined to "dra[w] one or more lines between categories of speech covered by an overly broad statute, when Congress has sent inconsistent signals as to where the new line or lines should be drawn" because doing so "involves a far more serious invasion of the legislative domain." [FN49] This Court "will not rewrite a ... law *885 to conform it to constitutional requirements." American Booksellers, 484 U.S., at397,108 S.Ct., at 645. [FN50] FN49. As this Court long ago explained: "It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government." United States v. Reese, 92 U.S. 214, 221, 23 L.Ed. 563 (1875). In part because of these separation-of-powers concerns, we have held that a severability Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 21 clause is "an aid merely; not an inexorable command." Dorchyv. Kansas, 264 U.S. 286, 290,44 S.Ct. 323, 325, 68 L.Ed. 686 (1924). FN50. See also Osborne v. Ohio, 495 U.S. 103, 121, 110 S.Ct. 1691, 1702-1703, 109 L.Ed.2d 98 (1990) (judicial rewriting of statutes would derogate Congress' "incentive to draft a narrowly tailored law in the first place"). XI In this Court, though not in the District Court, the Government asserts that— in addition to its interest in protecting children-its "[e]qually significant" interest in fostering the growth of the Internet provides an independent basis for upholding the constitutionality of the CD A. Brief for Appellants 19. The Government apparently assumes that the unregulated availability of "indecent" and "patently offensive" material on the Internet is driving countless citizens away from the medium because of the risk of exposing themselves or their children to harmful material. We find this argument singularly unpersuasive. The dramatic expansion of this new marketplace of ideas contradicts the factual basis of this contention. The record demonstrates that the growth of the Internet has been and continues to be phenomenal. As a matter of constitutional tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship. For the foregoing reasons, the judgment of the District Court is affirmed. It is so ordered. *886 Justice O'CONNOR, with whom THE CHIEF JUSTICE joins, concurring in the judgment in part and dissenting in part. I write separately to explain why I view the Communications Decency Act of 1996(CDA) as little more than an attempt by Congress to create "adult zones" on the Internet. Our precedent indicates that the creation of such zones can be constitutionally sound. Despite the soundness of its purpose, however, portions of the CDA are unconstitutional because they stray from the blueprint our prior cases have developed for constructing a "zoning law" that passes constitutional muster. Appellees bring a facial challenge to three provisions of the CDA. The first, which the Court describes as the " indecency transmission" provision, makes it a crime to knowingly **2352 transmit an obscene or indecent message or image to a person the sender knows is under 18 years old. 47 U.S.C. § 223(a)(l)(B) (1994 ed., Supp. II). What the Court classifies as a single " 'patently offensive display1 " provision, see ante, at 2338, is in reality two separate provisions. The first of these makes it a crime to knowingly send a patently offensive message or image to a specific person under the age of 18 ("specific person" provision). § 223(d)(l)(A). The second criminalizes the display of patently offensive messages or images "in a[ny] manner available" to minors ("display" provision). § 223(d)(l)(B). None of these provisions purports to keep indecent (or patently offensive) material away from adults, who have a First Amendment right to obtain this speech. Sable Communications of Cat., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 2836, 106 L.Ed.2d 93 (1989) ("Sexual expression which is indecent but not obscene is protected by the First Amendment"). Thus, the undeniable purpose of the CDA is to segregate indecent material on the Internet into certain areas that minors cannot access. See S. Conf. Rep. No. 104-230, p. 189 (1996) (CDA imposes "access restrictions... to protect minors from exposure to indecent material"). *887 The creation of "adult zones" is by no means a novel concept. States have long denied minors access to certain establishments frequented by adults. [FN1] States have also denied minors access to speech deemed to be "harmful to minors." [FN2] *888 The Court has previously sustained such zoning laws, but only if they respect the First Amendment **2353 rights of adults and minors. That is to say, a zoning law is valid if (i) it does not unduly restrict adult access to the material; and (ii) minors have no First Amendment right to read or view the banned material. As applied to the Internet as it exists in 1997, the "display" provision and some applications of the "indecency transmission" and "specific person" provisions fail to adhere to the first of these limiting principles by restricting adults' access to protected materials in certain circumstances. Unlike the Court, however, I would invalidate the provisions only in those circumstances. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 22 FN1. See, e.g., Alaska Stat. Ann. § 11.66.300 (1996) (no minors in "adult entertainment" places); Ariz.Rev.Stat. Ann. § 13-3556 (1989) (no minors in places where people expose themselves); Ark.Code Ann. §§ 5-27-223, 5-27-224 (1993) (no minors in poolrooms and bars); Colo.Rev.Stat. § 18-7-502(2) (1986) (no minors in places displaying movies or shows that are "harmful to children"); Del.Code Ann., Tit. 11, § 1365(i)(2) (1995) (same); D.C.Code Ann. § 22-2001(b)(l)(B) (1996) (same); Fla. Stat. § 847.013(2) (1994) (same); Ga.Code Ann. § 16-12-103(b) (1996) (same); Haw.Rev.Stat. § 712- 1215(l)(b) (1994) (no minors in movie houses or shows that are "pornographic for minors"); Idaho Code § 18-1515(2) (1987) (no minors in places displaying movies or shows that are "harmful to minors"); La.Rev.Stat. Ann. § 14:91.11(B) (West 1986) (no minors in places displaying movies that depict sex acts and appeal to minors' prurient interest); Md. Ann.Code, Art. 27, § 416E (1996) (no minors in establishments where certain enumerated acts are performed or portrayed); Mich. Comp. Laws § 750.141 (1991) (no minors without an adult in places where alcohol is sold); Minn.Stat. § 617.294 (1987 and Supp.1997) (no minors in places displaying movies or shows that are "harmful to minors"); Miss.Code Ann. § 97-5-11 (1994) (no minors in poolrooms, billiard halls, or where alcohol is sold); Mo.Rev.Stat. § 573.507 (1995) (no minors in adult cabarets); Neb.Rev.Stat. § 28-809 (1995) (no minors in places displaying movies or shows that are "harmful to minors"); Nev.Rev.Stat. § 201.265(3) (1997) (same); N.H.Rev.Stat. Ann. §571-8:2(11) (1986) (same); N.M. Stat. Ann. § 30-37-3 (1989) (same); N.Y. Penal Law § 235.21(2) (McKinney 1989) (same); N.D. CentCode § 12.1-27.1-03 (1985 and Supp.1995) (same); 18 Pa. Cons.Stat. § 5903(a) (Supp.1997) (same); S.D. Comp. Laws Ann. § 22-24- 30 (1988) (same); Tenn.Code Ann. § 39-17-91 l(b) (1991) (same); Vt. Stat. Ann, Tit. 13, § 2802(b) (1974) (same); Va.Code Ann. § 18.2-391 (1996) (same). FN2. See, e.g., Ala.Code § 13A-12-200.5 (1994); Ariz.Rev.Stat. Ann. § 13-3506 (1989); Ark.Code Ann. § 5-68-502 (1993); Cal.Penal Code Ann. § 313.1 (West Supp.1997); Colo.Rev.Stat. § 18-7- 502(1) (1986); Conn. Gen.Stat. § 53a-196 (1994); DeLCode Ann., Tit. 11, § 1365(i)(l) (1995); D.C.Code Ann. § 22- 2001(b)(l)(A) (1996); Fla. Stat. § 847.012 (1994); Ga.Code Ann. § 16-12-103(a) (1996); Haw.Rev.Stat. § 712-1215(1) (1994); Idaho Code § 18-1515(1) (1987); 111. Comp. Stat., ch. 720, § 5/11-21 (1993); Ind.Code § 35-49-3-3(1) (Supp.1996); Iowa Code § 728.2 (1993); Kan. Stat. Ann. § 21-4301c(aX2) (1988); La.Rev.Stat. Ann. § 14:91.11(B) (West 1986); Md. Ann.Code, Art. 27, § 416B (1996); Mass. Gen. Laws, ch. 272, § 28 (1992); Minn.Stat. § 617.293 (1987 and Supp.1997); Miss.Code Ann. § 97-5-11 (1994); Mo.Rev.Stat. § 573.040 (1995); MontCode Ann. § 45-8-206 (1995); Neb.Rev.Stat. § 28-808 (1995); Nev.Rev.Stat. §§ 201.265(1), (2) (1997); N.H.Rev.Stat. Ann. § 571-B:2(I) (1986); N.M. Stat. Ann. § 30-37-2 (1989); N.Y. Penal Law § 235.21(1) (McKinney 1989); N.C. Gen.Stat. § 14-190.15(a) (1993); N.D. Cent.Code § 12.1-27.1-03 (1985 and Supp.1995); Ohio Rev.Code Ann. § 2907.31(A)(1) (Supp.1997); Okla. Stat., Tit. 21, § 1040.76(2) (Supp.1997); 18 Pa. Cons.Stat. § 5903(c) (Supp.1997); R.I. Gen. Laws § 11-3l-10(a) (1996); S.C.CodeAnn. § 16-15-385(A)(Supp.l996); S.D.Comp.Laws Ann. § 22-24-28 (1988); Tenn.Code Ann. § 39-17-91 l(a) (1991); Tex. Penal Code Ann. § 43.24(b) (1994); Utah Code Ann. § 76-10-1206(2)(1995); Vt. Stat. Ann, Tit. 13, § 2802(a) (1974); Va.Code Ann. § 18.2-391 (1996); Wash. Rev.Code § 9.68.060 (1988 and Supp.1997); Wis. Stat. § 948.11(2) (Supp.1995). I Our cases make clear that a "zoning" law is valid only if adults are still able to obtain the regulated speech. If they cannot, the law does more than simply keep children away from speech they have no right to obtain—it interferes with the rights of adults to obtain constitutionally protected speech and effectively "reduce[s] the adult population... to reading only what is fit for children." Butler v. Michigan, 352 U.S. 380, 383, 77 S.Ct. 524, 526, 1 L.Ed.2d 412 (1957). The First Amendment does not tolerate such interference. Ibid., (striking down a Michigan *889 criminal law banning sale of books—to minors or adults—that contained words or pictures that " 'tendefd] to ... corrupft] the morals of youth' "); Sable Communications, supra (invalidating federal law that Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 23 made it a crime to transmit indecent, but nonobscene, commercial telephone messages to minors and adults); Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 74, 103 S.Ct. 2875, 2884, 77 L.Ed.2d 469 (1983) (striking down a federal law prohibiting the mailing of unsolicited advertisements for contraceptives). If the law does not unduly restrict adults' access to constitutionally protected speech, however, it may be valid. In Ginsberg v. New York, 390 U.S. 629,634,88 S.Ct. 1274, 1277-1278, 20 L.Ed.2d 195 (1968), for example, the Court sustained a New York law that barred store owners from selling pornographic magazines to minors in part because adults could still buy those magazines. The Court in Ginsberg concluded that the New York law created a constitutionally adequate adult zone simply because, on its face, it denied access only to minors. The Court did not question—and therefore necessarily assumed—that an adult zone, once created, would succeed in preserving adults' access while denying minors' access to the regulated speech. Before today, there was no reason to question this assumption, for the Court has previously only considered laws that operated in the physical world, a world that with two characteristics that make it possible to create "adult zones": geography and identity. See Lessig, Reading the Constitution in Cyberspace, 45 Emory L.J. 869,886 (1996). A minor can see an adult dance show only if he enters an establishment that provides such entertainment. And should he attempt to do so, the minor will not be able to conceal completely his identity (or, consequently, his age). Thus, the twin characteristics of geography and identity enable the establishment's proprietor to prevent children from entering the establishment, but to let adults inside. The electronic world is fundamentally different. Because it is no more than the interconnection of electronic pathways, cyberspace allows speakers and listeners to mask their identities. *890 Cyberspace undeniably reflects some form of geography; chat rooms and Web sites, for example, exist at fixed "locations" on the Internet. Since users can transmit and receive messages on the Internet without revealing anything about their identities or ages, see id, at 901, however, it is not currently possible to exclude persons from accessing certain messages on the basis of their identity. Cyberspace differs from the physical world in another basic way: Cyberspace is malleable. Thus, it is possible to construct barriers in cyberspace and use them to screen for identity, making cyberspace more like the physical world and, consequently, more amenable to zoning laws. This transformation of cyberspace is already underway. Id, at 888-889; id, at 887 (cyberspace "is moving ... from a relatively unzoned place to a universe that is extraordinarily well zoned"). Internet speakers (users who post material on the Internet) have begun to zone **2354 cyberspace itself through the use of "gateway" technology. Such technology requires Internet users to enter information about themselves-perhaps an adult identification number or a credit card number-before they can access certain areas of cyberspace, 929 F.Supp. 824, 845 (E.D.Pa.1996), much like a bouncer checks a person's driver's license before admitting him to a nightclub. Internet users who access information have not attempted to zone cyberspace itself, but have tried to limit their own power to access information in cyberspace, much as a parent controls what her children watch on television by installing a lock box. This user-based zoning is accomplished through the use of screening software (such as Cyber Patrol or SurfWatch) or browsers with screening capabilities, both of which search addresses and text for keywords that are associated with "adult" sites and, if the user wishes, blocks access to such sites. Id, at 839- 842. The Platform for Internet Content Selection project is designed to facilitate user-based zoning by encouraging Internet speakers to rate the content *891 of their speech using codes recognized by all screening programs. Id, at 838-839. Despite this progress, the transformation of cyberspace is not complete. Although gateway technology has been available on the World Wide Web for some time now, id, at 845; Shea v. Reno, 930 F.Supp. 916, 933-934 (S.D.N.Y.1996), it is not available to all Web speakers, 929 F.Supp., at 845-846, and is just now becoming technologically feasible for chat rooms and USENET newsgroups, Brief for Appellants 37-38. Gateway technology is not ubiquitous in cyberspace, and because without it "there is no means of age verification," cyberspace still remains largely unzoned—and unzoneable. 929 F.Supp., at 846; Shea, supra, at 934. User-based zoning is also in its infancy. For it to be effective, (i) an agreed-upon code (or "tag") would have to exist; (ii) screening software or browsers with screening capabilities would have to be able to recognize the "tag"; and (iii) those programs would have to be widely available—and widely used—by Internet users. At present, none of these conditions is true. Screening software " is not in wide use today" and "only a handful of browsers have screening capabilities." Shea, supra, at 945-946. There is, moreover, no agreed-upon "tag" for those programs to recognize. 929 F.Supp., at 848; Shea, supra, at 945. Although the prospects for the eventual zoning of the Internet appear promising, I agree with the Court that Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 24 we must evaluate the constitutionality of the CDA as it applies to the Internet as it exists today. Ante, at 2349. Given the present state of cyberspace, I agree with the Court that the "display" provision cannot pass muster. Until gateway technology is available throughout cyberspace, and it is not in 1997, a speaker cannot be reasonably assured that the speech he displays will reach only adults because it is impossible to confine speech to an "adult zone." Thus, the only way for a speaker to avoid liability under the CDA is to refrain completely from using indecent speech. But this *892 forced silence impinges on the First Amendment right of adults to make and obtain this speech and, for all intents and purposes, "reducefs] the adult population [on the Internet] to reading only what is fit for children." Butler, 352 U.S., at 383, 77 S.Ct, at 526. As a result, the "display" provision cannot withstand scrutiny. Accord, Sable Communications, 492 U.S., at 126-131, 109 S.Ct., at 2836-2839; Bolger v. Youngs Drug Products Corp., 463 U.S., at 73-75, 103 S.Ct., at 2883-2885. The "indecency transmission" and "specific person" provisions present a closer issue, for they are not unconstitutional in all of their applications. As discussed above, the "indecency transmission" provision makes it a crime to transmit knowingly an indecent message to a person the sender knows is under 18 years of age. 47 U.S.C.A. § 223(a)(l)(B) (May 1996 Supp.). The "specific person" provision proscribes the same conduct, although it does not as explicitly require the sender to know that the intended recipient of his indecent message is a minor. § 223(d)(l)(A). The Government urges the Court to construe the provision to impose such a knowledge requirement, see Brief for Appellants 25-27, and I would do so. See Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 1397, 99 L.Ed.2d 645 (1988) ("[**2355 WJhere an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress"). So construed, both provisions are constitutional as applied to a conversation involving only an adult and one or more minors—e.g., when an adult speaker sends an e-mail knowing the addressee is a minor, or when an adult and minor converse by themselves or with other minors in a chat room. In this context, these provisions are no different from the law we sustained in Ginsberg. Restricting what the adult may say to the minors in no way restricts the adult's ability to communicate with other adults. He is not prevented from *893 speaking indecently to other adults in a chat room (because there are no other adults participating in the conversation) and he remains free to send indecent e-mails to other adults. The relevant universe contains only one adult, and the adult in that universe has the power to refrain from using indecent speech and consequently to keep all such speech within the room in an "adult" zone. The analogy to Ginsberg breaks down, however, when more than one adult is a party to the conversation. If a minor enters a chat room otherwise occupied by adults, the CDA effectively requires the adults in the room to stop using indecent speech. If they did not, they could be prosecuted under the "indecency transmission" and " specific person" provisions for any indecent statements they make to the group, since they would be transmitting an indecent message to specific persons, one of whom is a minor. Accord, ante, at 2347. The CDA is therefore akin to a law that makes it a crime for a bookstore owner to sell pornographic magazines to anyone once a minor enters his store. Even assuming such a law might be constitutional in the physical world as a reasonable alternative to excluding minors completely from the store, the absence of any means of excluding minors from chat rooms in cyberspace restricts the rights of adults to engage in indecent speech in those rooms. The "indecency transmission" and "specific person" provisions share this defect. But these two provisions do not infringe on adults' speech in all situations. And as discussed below, I do not find that the provisions are overbroad in the sense that they restrict minors' access to a substantial amount of speech that minors have the right to read and view. Accordingly, the CDA can be applied constitutionally in some situations. Normally, this fact would require the Court to reject a direct facial challenge. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100,95 L.Ed.2d 697 (1987) ("A facial challenge to a legislative Act [succeeds only if] the challenger ... establishes] that no set of circumstances *894 exists under which the Act would be valid"). Appellees' claim arises under the First Amendment, however, and they argue that the CDA is facially invalid because it is "substantially overbroad"—that is, it "sweeps too broadly ... [and] penalizes] a substantial amount of speech that is constitutionally protected," Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 2401, 120 L.Ed.2d 101 (1992). See Brief for Appellees American Library Association et al. 48; Brief for Appellees American Civil Liberties Union et al. 39-41. I agree with the Court that the provisions are overbroad in that they cover any and all communications between adults and minors, regardless of how many adults might be part of the audience to the communication. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 25 This conclusion does not end the matter, however. Where, as here, "the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish, ... [t]he statute may forthwith be declared invalid to the extent that it reaches too far, but otherwise left intact." Brocket! v. Spokane Arcades, Inc., 472 U.S. 491, 504, 105 S.Ct. 2794, 2802, 86 L.Ed.2d 394 (1985). There is no question that Congress intended to prohibit certain communications between one adult and one or more minors. See47U.S.C. §223(a)(l)(B)(1994ed.,Supp. II) (punishing "[wjhoever ... initiates the transmission of [any indecent communication] knowing that the recipient of the communication is under 18 years of age"); § 223(d)(l)(A) (punishing **2356 "[w]hoever ... send[s] to a specific person or persons under 18 years of age [a patently offensive message]"). There is also no question that Congress would have enacted a narrower version of these provisions had it known a broader version would be declared unconstitutional. 47 U.S.C. § 608 ("If... the application [of any provision of the CD A] to any person or circumstance is held invalid, ... the application of such provision to other persons or circumstances shall not be affected thereby"). I would therefore sustain the "indecency transmission" and "specific person" provisions to the extent they *895 apply to the transmission of Internet communications where the party initiating the communication knows that all of the recipients are minors. II Whether the CDA substantially interferes with the First Amendment rights of minors, and thereby runs afoul of the second characteristic of valid zoning laws, presents a closer question. In Ginsberg, the New York law we sustained prohibited the sale to minors of magazines that were "harmful to minors." Under that law, a magazine was "harmful to minors" only if it was obscene as to minors. 390 U.S., at 632-633, 88 S.Ct., at 1276-1277. Noting that obscene speech is not protected by the First Amendment, Roth v. United States, 354 U.S. 476, 485, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957), and that New York was constitutionally free to adjust the definition of obscenity for minors, 390 U.S., at 638, 88 S.Ct., at 1279-1280, the Court concluded that the law did not "invad[e] the area of freedom of expression constitutionally secured to minors," id., at 637, 88 S.Ct., at 1279. New York therefore did not infringe upon the First Amendment rights of minors. Cf. Erznoznik v. Jacksonville, 422 U.S. 205, 213, 95 S.Ct. 2268, 2274-2275,45 L.Ed.2d 125 (1975) (striking down city ordinance that banned nudity that was not "obscene even as to minors"). The Court neither "accept[s] nor reject[s]" the argument that the CDA is facially overbroad because it substantially interferes with the First Amendment rights of minors. Ante, at 2348. I would reject it. Ginsberg established that minors may constitutionally be denied access to material that is obscene as to minors. As Ginsberg explained, material is obscene as to minors if it (i) is "patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable ... for minors"; (ii) appeals to the prurient interest of minors; and (iii) is "utterly without redeeming social importance for minors." 390 U.S., at 633, 88 S.Ct., at 1276. Because the CDA denies minors the right to obtain material that is "patently offensive"-even if it has some redeeming value for minors and even if it does not appeal to their prurient *896 interests—Congress' rejection of the Ginsberg "harmful to minors" standard means that the CDA could ban some speech that is "indecent" (i.e., "patently offensive") but that is not obscene as to minors. I do not deny this possibility, but to prevail in a facial challenge, it is not enough for a plaintiff to show "some" overbreadth. Our cases require a proof of "real" and "substantial" overbreadth, Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S.Ct. 2908, 2917-2918,37 L.Ed.2d 830 (1973), and appellees have not carried their burden in this case. In my view, the universe of speech constitutionally protected as to minors but banned by the CDA—i.e., the universe of material that is "patently offensive," but which nonetheless has some redeeming value for minors or does not appeal to their prurient interest— is a very small one. Appellees cite no examples of speech falling within this universe and do not attempt to explain why that universe is substantial "in relation to the statute's plainly legitimate sweep." Ibid. That the CDA might deny minors the right to obtain material that has some "value," see ante, at 2348, is largely beside the point. While discussions about prison rape or nude art, see ibid., may have some redeeming educational value for adults, they do not necessarily have any such value for minors, and under Ginsberg, minors only have a First Amendment right to obtain patently offensive material that has "redeeming social importance for minors," 390 U.S., at 633, 88 S.Ct., at 1276 (emphasis added). There is also no evidence in the record to support the contention that "many e-mail transmissions from an adult **23S7 to a minor are conversations between family members," ante, at 2341, n. 32, and no support for the legal proposition that such speech is absolutely immune from regulation. Accordingly, in my view, the CDA does not burden a substantial amount of minors' constitutionally protected speech. Thus, the constitutionality of the CDA as a zoning law hinges on the extent to which it substantially interferes Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 26 with the First Amendment rights of adults. Because the rights *897 of adults are infringed only by the "display" provision and by the "indecency transmission" and "specific person" provisions as applied to communications involving more than one adult, I would invalidate the CDA only to that extent Insofar as the "indecency transmission" and "specific person" provisions prohibit the use of indecent speech in communications between an adult and one or more minors, however, they can and should be sustained. The Court reaches a contrary conclusion, and from that holding that I respectfully dissent. 117 S.Ct. 2329, 521 U.S. 844, 138 L.Ed.2d 874, 65 USLW 4715, 25 Media L. Rep. 1833, 97 Cal. Daily Op. Serv. 4998, 97 Daily Journal D.A.R. 8133, 97 CJ C.A.R. 1050, 8 Communications Reg. (P&F) 352, 11 Fla.L. Weekly Fed. S 211 Briefs and Other Related Documents (Back to top) • 1997 WL 136253 (Oral Argument) Oral Argument (Mar. 19, 1997) • 1997 WL 106544 (Appellate Brief) REPLY BRIEF FOR THE APPELLANTS (Mar. 07, 1997) • 1997 WL 76015 (Appellate Brief) BRIEF AMICUS CURIAE OF VOLUNTEER LAWYERS FOR THE ARTS, VARIOUS ARTISTS AND ART ORGANIZATIONS IN SUPPORT OF APPELLEES (Feb. 21,1997) • 1997 WL 74378 (Appellate Brief) BRIEF OF APPELLEES (Feb. 20,1997) • 1997 WL 74380 (Appellate Brief) BRIEF OF APPELLEES AMERICAN LIBRARY ASSOCIATION, ET AL. (Feb. 20,1997) • 1997 WL 74382 (Appellate Brief) BRIEF OF FEMINISTS FOR FREE EXPRESSION AS AMICUS CURIAE IN SUPPORT OF APPELLEES (Feb. 20, 1997) • 1997 WL 74385 (Appellate Brief) BRIEF AMICUS CURIAE OF THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA IN SUPPORT OF APPELLEES (Feb. 20,1997) • 1997 WL 74388 (Appellate Brief) BRIEF OF AMICI CURIAE ASSOCIATION OF NATIONAL ADVERTISERS, INC. AND THE MEDIA INSTITUTE IN SUPPORT OF APPELLEES (Feb. 20, 1997) • 1997 WL 74391 (Appellate Brief) BRIEF OF APOLLOMEDIA CORPORATION AND BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM, AS AMICI CURIAE, IN SUPPORT OF AFFIRMANCE (Feb. 20, 1997) • 1997 WL 74392 (Appellate Brief) BRIEF AMICI CURIAE OF SITE SPECIFIC, INC., AND JON LEBKOWSKIOM SUPPORT OF APPELLEES (Feb. 20, 1997) • 1997 WL 74393 (Appellate Brief) BRIEF AMICUS CURIAE OF THE SPEECH COMMUNICATION ASSOCIATION IN SUPPORT OF APPELLEES-PLAINTIFFS (Feb. 20, 1997) • 1997 WL 74394 (Appellate Brief) BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS AND THE STUDENT PRESS LAW CENTER AS AMICI CURIAE IN SUPPORT OF THE APPELLEES (Feb. 20,1997) • 1997 WL 74395 (Appellate Brief) BRIEF AMICI CURIAE OF THE NATIONAL ASSOCIATION OF BROADCASTERS; ABC, INC.; CBS INC.; AND NATIONA L BROADCASTING COMPANY, INC. IN SUPPORT OF APPELLEES (Feb. 20,1997) • 1997 WL 74386 (Appellate Brief) BRIEF OF PLAYBOY ENTERPRISES, INC. AS AMICUS CURIAE IN SUPPORT OF APPELLEES (Feb. 19, 1997) • 1997 WL 74396 (Appellate Brief) BRIEF OF AMICI CURIAE AMERICAN ASSOCIATION OF UNIVERSITY PROFESSORS, ET AL. IN SUPPORT OF APPELLEES (Feb. 19,1997) • 1997 WL 22908 (Appellate Brief) BRIEF OF MORALITY IN MEDIA, INC. AS AMICUS CURIAE IN SUPPORT OF APPELLANTS (Jan. 21, 1997) • 1997 WL 22917 (Appellate Brief) BRIEF AMICUS CURIAE OF THE FAMILY LIFE PROJECT OF THE AMERICAN CENTER FOR LAW AND JUSTICE SUPPORTING APPELLANTS (Jan. 21,1997) • 1997 WL 22918 (Appellate Brief) BRIEF OF MEMBERS OF CONGRESS (Jan. 21, 1997) • 1997 WL 22958 (Appellate Brief) BRIEF AMICI CURIAE OF ENOUGH IS ENOUGH, THE SALVATION ARMY, NATIONAL POLITICAL CONGRESS OF BLACK WOMEN, INC., THE Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 27 NATIONAL COUNCIL OF CATHOLIC WOMEN, VICTIMS' ASSISTANCE LEGAL ORGANIZATION, CHILDHELP USA, LEGAL PAD ENTERPRISES, INC FOCUS ON THE FAMIL Y, THE NATIONAL COALITION FOR THE PROTECTION OF CHILDREN AND FAMILIES (and other amici listed on inside cover) IN SUPPORT OF APPELLANTS (Jan. 21,1997) • 1997 WL 32931 (Appellate Brief) BRIEF FOR THE APPELLANTS (Jan. 21, 1997) • 1997 WL 33487272 (Joint Appendix) (Jan. 21,1997) Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 41 Pagel 317F.3d856 (Cite as: 317 F.3d 856) United States Court of Appeals, Eighth Circuit. SOB, INC., et al., Plaintiffs-Appellants/Cross Appellees, v. COUNTY OF BENTON, Defendant-Appellee/Cross Appellant. Nos. 01-3928, 01-4022. Submitted: Oct. 10, 2002. Filed: Jan. 24,2003. Rehearing and Rehearing En Bane Denied: Feb. 27, 2003. Owner of nude dancing establishment brought action against county, seeking permanent injunction both to prohibit enforcement of county's public indecency ordinance and to prohibit county from enforcing ordinance by means of custodial arrest of nude dancers. The United States District Court for the District of Minnesota, Alsop, Senior District Judge, 171 F.Supp.2d 978, granted injunction in part, and denied it in part. Both parties appealed. The Court of Appeals, Loken, Circuit Judge, held that: (1) county had sufficient basis for concluding that ordinance was needed to further substantial government interest in combating harmful secondary effects; (2) ordinance was not overbroad in violation of First Amendment free speech clause; and (3) owner failed to demonstrate that exceptional circumstances required an injunction against enforcing ordinance by means of custodial arrest. Affirmed in part; reversed and remanded in part. West Headnotes [1] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases Non-obscene erotic and sexually explicit speech are entitled to some First Amendment free speech protection, but businesses that market sexually explicit speech and expressive conduct may be regulated to the extent their activities are perceived as having adverse social and economic effects on society. U.S.C.A. Const. Amend. 1. [2] Constitutional Law €=?90.4(1) 92k90.4(l) Most Cited Cases Sexually oriented businesses may be subjected to reasonable time, place, and manner restrictions based upon the nature of the products or services they sell, even though those products and services include an expressive content protected by the First Amendment. U.S.C.A. ConstAmend. 1. [3] Zoning and Planning O=>76 414k76 Most Cited Cases State and local governments may use diverse zoning strategies such as dispersal or concentration, to regulate adverse secondary effects of sexually oriented businesses, such as crime, prostitution, and economic blight. [4] Constitutional Law €==^90.4(1) 92k90.4(l) Most Cited Cases Regulation limiting zoning for sexually oriented businesses must be content neutral to avoid strict scrutiny under First Amendment free speech clause; "content-neutral" in this context means simply that the regulation is justified by the legitimate government purpose of reducing or eliminating adverse secondary effects. U.S.C.A. Const.Amend. 1. [5] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases If a zoning regulation restricting location of sexually oriented businesses is content-neutral in that it is justified by legitimate government purpose of reducing or eliminating adverse secondary effects, it will withstand constitutional free speech scrutiny so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses and the regulation allows for reasonable alternative avenues for communication. U.S.C.A. Const.Amend. 1. [6] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases A ban on live nude dancing is a content-neutral regulation of speech if its purpose is to combat harmful secondary effects, even though the ban has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch of clothing is dropped. U.S.C.A. Const.Amend. 1. [7] Constitutional Law €=>90.4(2) 92k90.4(2) Most Cited Cases Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 County ordinance making it a misdemeanor to knowingly or intentionally appear in a state of nudity, or fondle genitals of oneself or of another, in a public place, was content-neutral regulation of speech, subject to intermediate First Amendment scrutiny under four-part test for judging government action restricting conduct that includes both speech and non-speech elements; stated purpose was to prohibit public indecency in order to deter criminal activity, to promote societal order and public health, and to protect children. U.S.C.A. Const. Amend. 1. [8] Courts €>==>90(2) 106k90(2) Most Cited Cases When a fragmented Supreme Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds. [9] Constitutional Law 92k90.4(l) Most Cited Cases [9] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases [9] Obscenity 281k2.5 Most Cited Cases Under intermediate First Amendment scrutiny, county had sufficient basis for concluding that ordinance prohibiting public indecency, and in effect banning live nude dancing, was needed to further substantial government interest in combating harmful secondary effects, although owner of nude dancing establishment presented evidence that two adult entertainment businesses in the county had neither caused higher crime rates nor depressed property values; owner's local evidence addressed only two adverse effects, both relating to zoning, and county had evidence from studies of other counties of secondary effects associated with adult entertainment businesses. U.S.C.A. Const. Amend. 1. [10] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases Zoning restrictions typically impact a broad range of adult entertainment businesses, whereas a ban on live nude dancing imposes a de minimis restriction on expressive conduct, while otherwise leaving the quantity and accessibility of speech substantially intact. U.S.C. A. Const. Amend. 1. [11] Constitutional Law 92k42(l) Most Cited Cases [11] Constitutional Law €=>42.2(1) 92k42.2(l) Most Cited Cases Ordinarily, a party may not facially challenge a law on the ground that it would be unconstitutional if applied to someone else; an exception to that general rule is the First Amendment overbreadth doctrine governing free speech. U.S.C.A. Const.Amend. 1. [12] Constitutional Law €=>42.2(1) 92k42.2(l) Most Cited Cases To prevent the chilling of protected First Amendment free speech interests, the "overbreadth doctrine" permits an individual whose own speech or conduct may be prohibited to challenge a statute on its face because it also threatens others not before the court, or those who desire to engage in legally protected expression but who may refrain from doing so. U.S.C.A. Const.Amend. 1. [13] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases Where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional under First Amendment free speech protections unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. U.S.C.A. Const.Amend. 1. [14] Constitutional Law €^90.4(3) 92k90.4(3) Most Cited Cases [14] Obscenity 281k2.5 Most Cited Cases County ordinance prohibiting public fondling of genitals was not overbroad in violation of free speech clause, although ordinance did not appear to except legitimate theatrical performances from fondling prohibition; county had no theatres, and county attorney represented that county had no intention of enforcing ordinance's provisions on any theatrical production which had serious artistic merit. U.S.C.A. Const.Amend. 1. [15] Federal Courts €=>386 170Bk386 Most Cited Cases In evaluating a facial challenge to a state law, a federal court must consider any limiting construction that a state court or enforcement agency has proffered. [16] Constitutional Law O==>82(10) Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page3 92k82(10) Most Cited Cases [16] Constitutional Law €==>225.1 92k225.1 Most Cited Cases [16] Obscenity €=>2.5 281k2.5 Most Cited Cases County ordinance that prohibited nudity and the fondling of genitals in a public setting or place, including hotels and motels but excluding enclosed "single sex motel rooms" or "hotel rooms designed for sleeping accommodations," did not violate rights to marital and sexual privacy or equal protection rights of married couple who allegedly feared prosecution under the ordinance, absent evidence of likelihood that ordinance would be enforced against them if they engaged in normal marital activities within such a motel or hotel room. U.S.C.A. Const.Amend. 5; M.S.A. § 645.17(1,3). [17] Constitutional Law 92k46(l) Most Cited Cases As a general rule, a federal court should refrain from entertaining a pre- enforcement constitutional challenge to a state criminal statute in the absence of a realistic fear of prosecution. [18] Injunction 212k85(l) Most Cited Cases Owner of nude dancing establishment failed to demonstrate that exceptional circumstances required a pre-enforcement injunction against enforcing county ordinance prohibiting live nude dancing by means of custodial arrest; risk that dancers at nude dancing establishment would be subject to custodial arrest was minimal, enforcing officers were required by state law to proceed by citation rather than custodial arrest unless necessary to prevent bodily harm or further criminal conduct, and there was little risk that a custodial arrest would restrain a dancer's protected expressive conduct in later performances that same night, in violation of prior restraint doctrine. U.S.C.A. Const.Amends. 1, 14; M.S.A. § 609.02, subd. 3; 49 M.S.A., Rules Crim.Proc., Rule 6.0 l,subd. 1(1 )(a). [19] Injunction €=>85(2) 212k85(2) Most Cited Cases Ordinarily, a federal court will not enjoin enforcement of a state criminal law, even though unconstitutional; to justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights. [20] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases The doctrine of prior restraint recognizes the time-honored distinction between barring speech in the future and penalizing past speech. U.S.C.A. Const. Amend. 1. *858 Randall D.B. Tigue, argued, Minneapolis, MN, for appellant/cross- appellee. Scott T. Anderson, argued, Minneapolis, MN (Amy E. Mace, on the brief), for appellee/cross-appellant. Before LOKEN, BEAM, and MELLOY, Circuit Judges. LOKEN, Circuit Judge. The primary issue in this case is whether Benton County, Minnesota, violated *859 the First Amendment by enacting an ordinance prohibiting live nude dancing entertainment when there was evidence presented to the County Commissioners suggesting that existing adult entertainment establishments had not adversely affected nearby property values or crime rates. The issue is surprisingly complex because it lies at the intersection of two related but distinct lines of Supreme Court First Amendment decisions. After SOB, Inc. opened Sugar Daddy's, an alcohol-free cabaret featuring live nude dancing, the Benton County Board of Commissioners enacted Ordinance 332 ("the Ordinance") generally prohibiting "public indecency": Public Indecency Prohibited. A person, who knowingly or intentionally in a public setting or place: A. appears in a state of nudity; B. fondles the genitals of himself or herself, or C. fondles the genitals of another person; commits public indecency and is guilty of a misdemeanor under Minnesota law and upon conviction thereof, shall be punished by a fine of up to $1,000 or by imprisonment for up to 90 days, or both. The Ordinance compelled Sugar Daddy's female dancers to cover their breasts and genitals with pasties and G-strings while performing. SOB, Inc. and three dancers (collectively, "Sugar Daddy s") commenced this action to declare the Ordinance overbroad and contrary to their protected First Amendment interests in live nude dancing and to enjoin its enforcement. Sugar Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 Daddy's manager, Mark Van Gelder, and his wife joined as plaintiffs and asserted a claim that another aspect of the Ordinance violates their due process, equal protection, and privacy rights. After consolidating plaintiffs' motion for a preliminary injunction with the trial on the merits, the district court held that the Ordinance is constitutional, but the court enjoined the County from enforcing it "by means of custodial arrest." S.O.B.,lnc. v. County of Benton, 171 F.Supp.2d 978 (D.Minn.2001). Both sides appeal this final order. We affirm the district court's decision except we vacate the injunction against custodial arrest. I. The Public Nudity Prohibition. [ 1 ] Non-obscene erotic and sexually explicit speech are entitled to some First Amendment protection. But businesses that market sexually explicit speech and expressive conduct may be regulated to the extent their activities are perceived as having adverse social and economic effects on society. For example, a law prohibiting the sale of sexually oriented materials to minors was upheld against a First Amendment challenge in Ginsberg v. New York, 390 U.S. 629,634, 640-42, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968). More recently, the Supreme Court has considered First Amendment challenges to two different kinds of regulatory action taken by local governments to attack the perceived negative effects of non-obscene adult entertainment: the use of traditional urban zoning strategies to restrict the time, place, and manner in which adult entertainment may be marketed, and the use of traditional public indecency statutes to prohibit certain types of sexually expressive conduct. These recent decisions govern our resolution of this appeal. [2][3][4][5] Zoning issues reached the Supreme Court first. It is now well-established that sexually oriented businesses may be subjected to reasonable time, place, and manner restrictions based upon the nature of the products or services they sell, even though those products and services include an expressive content protected by the First Amendment. See *860City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 48-50, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986); Young v. American Mini Theatres, Inc., 427 U.S. 50, 62- 63, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976). Under Renton, state and local governments may use diverse zoning strategies (for example, either dispersal or concentration) to regulate adverse secondary effects of such businesses such as crime, prostitution, and economic blight. The regulation must be "content neutral" to avoid strict First Amendment scrutiny. But content-neutral in this context means simply that the regulation is justified by the legitimate government purpose of reducing or eliminating adverse secondary effects. 475 U.S. at 47-50, 106 S.Ct. 925. If a zoning regulation is content-neutral in this sense, it will withstand First Amendment scrutiny "so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses" and the regulation allows for reasonable alternative avenues for communication. Id at 51-52, 106 S.Ct. 925. This case involves the second type of regulation, use of a public indecency ordinance to totally prohibit live nude dancing. Public indecency, including nudity, was a crime at common law, and public indecency statutes are clearly within the police power of state and local governments. A First Amendment challenge to this type of regulation first reached the Supreme Court in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991). The Court upheld the application of Indiana's long-standing public indecency statute to prohibit live nude dancing as entertainment, but no five Justices agreed on a single rationale for that conclusion. Noting that nude dancing is expressive conduct, not pure speech, four Justices applied the four- part test in UnitedStates v. O'Brien, 391 U.S. 367,377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), for judging government action restricting conduct that includes both speech and non-speech elements: [A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Applying this test, the Chief Justice, Justice O'Connor, and Justice Kennedy considered Indiana's prohibition of live nude dancing sufficientlyjustifiedby the traditional police power to protect morals and public order. Barnes, 501 U.S. at 569, 111 S.Ct. 2456. Justice Souter, on the other hand, applied the O'Brien test but looked to Renton for relevant precedent and concluded that the prohibition was justified by "the State's substantial interest in combating the secondary effects of adult entertainment establishments." Id. at 582, 111 S.Ct. 2456. (Justice Scalia, the fifth member of the Barnes majority, concluded that live nude dancing is conduct unprotected by the First Amendment. The four dissenters concluded that the prohibition was the suppression of protected erotic dancing and could not survive First Amendment strict scrutiny.) The Court again took up this issue in City of Erie v. Pap's A.M., 529 U.S. 277,120 S.Ct. 1382,146L.Ed.2d 265 (2000). A larger majority again upheld application Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS of an ordinance generally prohibiting public nudity to ban live nude dancing. A four-Justice plurality (Justice O'Connor, joined by the Chief Justice, Justice Kennedy, and Justice Breyer), now agreeing with Justice Souter that the adverse secondary effects analysis of Renton was the proper analytical framework, concluded that the government *861 had a sufficient interest in regulating this sexually explicit conduct because: 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) and at the same time recognizing that one specific occurrence of public nudity—nude erotic dancing—is particularly problematic because it produces harmful secondary effects. 529 U.S. at 295, 120 S.Ct. 1382. The plurality then concluded that the City of Erie ordinance passed muster under the four-part O'Brien test because: [t]he ordinance regulates conduct, and any incidental impact on the expressive element of nude dancing is de minimis. The requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interests, and the restriction leaves ample capacity to convey the dancer's erotic message. Id. at 301,120 S.Ct. 1382. Justice Souter dissented in part, agreeing with the plurality's analytical approach but voting to remand because the City of Erie had not made an evidentiary record supporting its claim of adverse secondary effects. (Justice Scalia, joined by Justice Thomas, concurred, adhering to his approach in Barnes: "The traditional power of government to foster good morals[,]... and the acceptability of the traditional judgment (if Erie wishes to endorse it) that nude public dancing itself is immoral, have not been repealed by the First Amendment." 529 U.S. at 310, 120 S.Ct. 1382. Justice Stevens and Justice Ginsburg dissented, adhering to the position of the dissenters in Barnes and criticizing the majority for extending Renton's adverse secondary effects analysis to the absolute prohibition of live nude dancing.) The final relevant Supreme Court precedent is another zoning case, the Court's very recent decision in City of Los Angeles v.Alameda Books, Inc., 535U.S.425,122 S.Ct. 1728, 152 L.Ed.2d 670 (2002). Alameda Books probed the evidentiary parameters of the Renton test, considering whether Los Angeles had presented sufficient evidence of adverse secondary effects to avoid summary judgment invalidating an amendment to its zoning ordinance that prohibited more than one adult entertainment business from operating hi the same building. Once again, Alameda Books produced no majority opinion. A four-Justice plurality (Justice O'Connor, joined by the Chief Justice, Justice Scalia, and Justice Thomas), in concluding that the City had made a sufficient showing to survive summary judgment, granted substantial but not total deference to the City's legislative judgment about how to combat adverse secondary effects: This is not to say that a municipality can get away with shoddy data or reasoning. The municipality's evidence must fairly support the municipality's rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality s rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. 122 S.Ct. at 1736. Justice Kennedy concurred but cautioned that, to justify a zoning ordinance under Renton, "a city must advance some basis to show that its regulation has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact." *S62Id. at 1742 (emphasis added). Justice Souter for the four dissenters concluded that the City's earlier studies regarding adverse secondary effects totally failed to support this amendment and therefore the amendment was impermissible content-based regulation. [6][7] Applying these Supreme Court precedents to this case, we can quickly isolate the critical inquiry. A ban on live nude dancing is content- neutral if its purpose is to combat harmful secondary effects, even though the ban "has some minimal effect on the erotic message by muting that portion of the expression that occurs when the last stitch [of clothing] is dropped." Pap's, 529 U.S. at 294, 120 S.Ct. 1382; see ILQ Invs., Inc. v. City of Rochester, 25 F.3d 1413, 1416 (8th Cir.1994). Here, the Ordinance states that its purpose is to "prohibit public indecency in order to deter criminal activity, to promote societal order and public health and to protect children," and it includes express findings that public indecency can increase criminal activity, including prostitution, disorderly conduct and sexual assault; expose children to an unhealthy and nurtureless environment; foster social disorder by disrupting the orderly operation of public events and public accommodations; and present health concerns in places of public accommodation and other public settings. Sugar Daddy's argues these findings are unsupported and suggests the Ordinance's stated purpose is pretextual. But Sugar Daddy's virtually concedes, and we conclude, that the Ordinance is content-neutral within the meaning of Pap's and therefore subject to intermediate First Amendment scrutiny under the four-part O'Brien test. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 [8] Likewise, Sugar Daddy's does not argue that the Ordinance fails the fourth part of the O'Brien test, that "the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of [the substantial governmental] interest." In Pap's, 529 U.S. at 289, 120S.Q. 1382, the plurality declared that live nude dancing is a form of expressive conduct that "falls only within the outer ambit of the First Amendment's protection." The plurality then concluded that an absolute prohibition on such conduct meets the O'Brien test because "[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." Id. at 301, 120 S.Ct. 1382 (plurality opinion). [FN1] FN1. "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds.'" Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977). Applying this test, Justice O'Connor's opinion for the four-Justice plurality in Pap's stated the holding of the Court. See Nightclub Mgmt., Ltd. v. City of Cannon Falls, 95 F.Supp.2d 1027,1040-41 (D.Minn.2000). On the other hand, Justice Kennedy's more narrow concurrence in Alameda Books stated the holding of the Court in that case. [9] Thus, the righting issue in this case, as it was in Alameda Books, is whether the County had sufficient evidence of adverse secondary effects to justify enacting the Ordinance. Before enactment, the County Commissioners gathered studies by other municipalities and other evidence of the adverse secondary effects associated with adult entertainment businesses. At the public hearing, concerned citizens spoke in favor of the Ordinance. Mark Van Gelder presented evidence suggesting that Sugar Daddy's and the King's Inn, a Benton County adult entertainment establishment that had been in business *863 for nearly eight years, had neither caused higher crime rates nor depressed the value of nearby properties in the time they had been operating. [FN2] Sugar Daddy's also submitted an article criticizing the methodologies of the secondary effects studies relied upon by other municipalities, Bryant Paul, et al., Government Regulation of "Adult" Businesses Through Zoning and Anti-Nudity Ordinances: Debunking the Legal Myth of Negative Secondary Effects, 6 COMM. L. & POL. 355 (2001). Sugar Daddy's argues that, on this record, the County had an insufficient basis for concluding that the Ordinance is needed to further the substantial government interest in combating harmful secondary effects. FN2. Van Gelder presented statistics showing fewer police calls to Sugar Daddy's in the prior year than to a local gas station, and a report suggesting that the value of properties near Sugar Daddy's and the King's Inn increased more from 1994 to 2001 than the value of properties near two businesses that do not feature nude dancing. The record before the Commissioners included contrary evidence and argument submitted by proponents of the Ordinance. [10] Though neither Pap's nor Alameda Books squarely resolves the issue, we conclude that Sugar Daddy's theory is unsound. Its local evidence addressed only two adverse secondary effects, property values and crime in the vicinity of an adult entertainment establishment. These are issues particularly relevant to zoning. A ban on live nude dancing, on the other hand, may address other adverse secondary effects, such as the likelihood that an establishment whose dancers and customers routinely violate long-established standards of public decency will foster illegal activity such as drug use, prostitution, tax evasion, and fraud. [FN3] Moreover, zoning restrictions typically impact a broad range of adult entertainment businesses, whereas a ban on live nude dancing imposes a de minimis restriction on expressive conduct, while otherwise "leaving the quantity and accessibility of speech substantially intact." Alameda Books, 122 S.Ct. at 1742 (Kennedy, J., concurring). FN3. The record before the County Commissioners included testimony presented by a former strip-club manager to the Michigan Legislature in the year 2000 describing how such establishments promote these kinds of illegal activities. Justice O'Connor, writing for the four-justice plurality in Pap's, afforded substantial deference to legislative judgments regarding secondary-effects: [I]n terms of demonstrating that such secondary effects pose a threat, the city need not conduct new studies or produce evidence independent of that Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? already generated by other cities to demonstrate the problem of secondary effects, so long as whatever evidence the city relies upon is reasonably believed to be relevant to the problem that the city addresses. 529 U.S. at 296, 120 S.Ct. 1382 (emphasis added, quotations omitted); see Jake's, Ltd., Inc. v. City of Coates, 284 F.3d 884, 886 (8th Cir.), cert, denied, 537 U.S. 948,123 S.Ct 413,154L.Ed.2d292 (2002). The plurality squarely rejected the dissent's view that the City must come forward with evidence showing that pasties and G-strings reduce crime: To be sure, requiring dancers to wear pasties and G-strings may not greatly reduce these secondary effects, but [the four-part O'Brien test] requires only that the regulation further the interest in combating such effects.... [T]he city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. 529 U.S. at 301, 120 S.Ct. 1382 (plurality opinion) (quotation omitted). The four-Justice plurality in Alameda Books was equally deferential in reviewing a zoning *864 ordinance which had a broader impact on protected First Amendment interests. Justice Kennedys concurring opinion in Alameda Books was somewhat less deferential than the plurality to local legislative judgments as to the adverse secondary effects purportedly addressed by zoning regulations. But Justice Kennedy joined the plurality opinions in Barnes as well as Pap's, and he did not even cite those cases in his Alameda Books concurrence, which means there is nothing to suggest that he has retreated from his votes in Barnes and Pap's. In these circumstances, we conclude that the Court's holding in Pap's is still controlling regarding the deference to be afforded local governments that decide to ban live nude dancing. Therefore, Sugar Daddy's failed to cast sufficient doubt on the County's rationale for the Ordinance, and the district court's decision that the ban on live nude dancing is constitutional must be affirmed. [FN4] FN4. In its cross-appeal, Benton County argues that two of the district court's findings of fact are clearly erroneous. Neither finding affects our conclusion that the County s ban on live nude dancing survives First Amendment intermediate scrutiny. Accordingly, we need not address these fact-finding issues. II. Claims That the Ordinance Is Overbroad. [11][12][13] Ordinarily, a party may not facially challenge a law on the ground that it would be unconstitutional if applied to someone else. See New Yorkv. Ferber, 458 U.S. 747, 767, 302 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). An exception to that general rule is the First Amendment overbreadth doctrine. To prevent the chilling of protected First Amendment interests, this doctrine permits "an individual whose own speech or conduct may be prohibited ... 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." Ways v. City of Lincoln, 274 F.3d 514, 518 (8th Cir.2001) (quotation omitted). A judicial declaration that a law is unconstitutionally overbroad "is, manifestly, strong medicine." Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Therefore, "where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Osbornev. Ohio, 495U.S. 103,112, HOS.Ct. 1691, 109 L.Ed.2d 98 (1990) (quotation omitted). [14] A. Does the Ordinance Chill Legitimate Theater? Sugar Daddys argues that, even if the Ordinance is constitutional as applied to live nude dancing, it is unconstitutionally overbroad because its prohibition against the public fondling of genitals chills constitutionally protected conduct. For example, Sugar Daddys warns that an actor playing the role of the manager in a local production of Damn Yankees could be subject to criminal penalties for adjusting his athletic protector. In Farkas v. Miller, 151 F.3d 900,905 (8th Cir. 1998), we upheld application of a public nudity statute to prohibit live nude dancing, rejecting an overbreadth argument because the statute included an exception for "a theater, concert hall, art center, museum, or similar establishment ... primarily devoted to the arts or theatrical performances." On the other hand, in Ways, 274 F.3d at 519, in striking down an ordinance more broadly prohibiting sexual contact in entertainment businesses, we noted that among other flaws the ordinance lacked an exception for artistic venues. In this case, the Ordinance has an exemption for "any theatrical production performed in a theater by a professional or amateur theatrical or musical company *865 which has serious artistic merit." But unlike the exemption in Farkas, this exemption is inexplicably limited to the Ordinance's public- nudity prohibition, so it does not appear to limit the public-genital-fondling prohibition. [15] An uncontradicted affidavit by the County Attorney avers that there are no theaters in Benton County. Moreover, the County Attorney represents that "it is not the intent of the prosecutorial authority for Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS Benton County to now or in the future enforce the provisions of Ordinance 332 on any theatrical production ... which has serious artistic merit." "In evaluating a facial challenge to a state law, a federal court must, of course, consider any limiting construction that a state court or enforcement agency has proffered." Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n. 5, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Thus, the record does not support an inference that protected theatrical activity is presently being chilled, or that the County will ever enforce the genital- fondling prohibition against the cast of a theatrical production. On this record, we agree with the district court that the Ordinance is not substantially overbroad, judged in relation to its plainly legitimate sweep. Accord J & B Entm't, Inc. v. City of Jackson, 152 F.3d 362, 366-67 (5th Cir. 1998). [16] B. The Van Gelders' Right to Privacy Claim. The Ordinance prohibits nudity and the fondling of genitals "in a public setting or place." The definition of public place includes hotels and motels but specifically excludes "enclosed single sex motel rooms and hotel rooms designed and intended for sleeping accommodations." Limiting the exclusion to "single sex" hotel rooms seems like a dreadful example of bad drafting. [FN5] Reading the limitation literally, Mark Van Gelder and his wife seek to enjoin enforcement of the Ordinance, to the extent it "criminalizes marital sexual relations within hotel rooms within Benton County," because it infringes their alleged constitutional right to marital and sexual privacy. Pressing literalism to an unreasonable extreme, the Van Gelders further assert that the Ordinance violates their right to equal protection because the single sex limitation permits homosexuals but not heterosexuals to engage in sexual relations in hotel rooms. FN5. The same linguistic nonsense infected the City of Cannon Falls ordinance upheld against other challenges in Nightclub Mgmt., 95 F.Supp.2d 1027. The complaint alleges that Mr. Van Gelder "fears that ... he and his wife could be subject to criminal prosecution if they engaged in normal marital activities within such a motel or hotel room." But the Van Gelders have presented no evidence of any likelihood that the Ordinance will be enforced against them if they engage in such activity. Indeed, the Benton County Attorney has publicly declared "that Ordinance 332 does not prohibit nudity, genital touching, or any other sexual activity in private hotel and motel rooms." That declaration finds support in the Minnesota canons of statutory construction, which codify presumptions that "[t]he legislature does not intend a result that is absurd, impossible of execution, or unreasonable [and]... does not intend to violate the constitution of the United States or of this state." minn. Stat. § 645.17, subd. (1), (3). Thus, the alleged fear is both without support and patently unreasonable. [17] As a general rule, a federal court should refrain from entertaining a pre-enforcement constitutional challenge to a state criminal statute in the absence of "a realistic fear of prosecution." Poev. Ullman, 367 U.S. 497, 508, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); see *866Steffelv. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209,39 L.Ed.2d 505 (1974). The Van Gelders1 claim does not raise First Amendment issues, and "the existence of a 'chilling effect,' even in the area of First Amendment rights, has never been considered a sufficient basis, in and of itself, for prohibiting state action." Younger v. Harris. 401 U.S. 37, 51, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971); see Laird v. Talum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972). On this record, the district court properly dismissed this claim without reaching the merits of the issues. III. The Custodial Arrest Issue. [18] In addition to asserting that the Ordinance is unconstitutional on its face, Sugar Daddy's complaint sought an order "declar[ing] the practice of enforcing the ordinance by custodial arrest to be an unlawful prior restraint on First and Fourteenth Amendment rights." Noting that the Ordinance's theatrical exemption requires arresting officers to determine that a live nude dancing performance lacks "serious artistic merit," the district court permanently enjoined enforcement of the Ordinance by means of custodial arrest because "arresting the performer necessarily places a prior restraint on later performances." Benton County appeals that ruling. [19] Ordinarily, a federal court will not enjoin enforcement of a state criminal law, even though unconstitutional. "To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights." Wooley v. Maynard, 430 U.S. 705, 712, 97 S.Ct. 1428, 51 L.Ed.2d 752 (1977) (quotation omitted). We conclude that Sugar Daddy's has failed to demonstrate that exceptional circumstances require an injunction against enforcing the constitutional prohibition of live nude dancing by means of custodial arrest. In the first place, the risk that Sugar Daddy's dancers will be subject to custodial arrest seems minimal. A Copr. © West 2004 No Claim to Orig. U.S. Govt. Works violation of the Ordinance is a misdemeanor. See minn. Stat. § 609.02, Subd. 3. The Minnesota Rules of Criminal Procedure require police officers to proceed against misdemeanor offenders by citation rather than custodial arrest, "unless it reasonably appears to the officer that arrest or detention is necessary to prevent bodily harm to the accused or another or further criminal conduct, or that there is a substantial likelihood that the accused will fail to respond to a citation." minn. R. Crim. P. 6.01, Subd. l(l)(a). Sugar Daddy's has presented no evidence that the County has threatened custodial arrests or will not comply with this rule of criminal procedure. [20] In the second place, the doctrine of prior restraint is only marginally involved here. The doctrine recognizes "the time-honored distinction between barring speech in the future and penalizing past speech."Alexanderv. UnitedStates, 509U.S. 544,554, 113 S.Ct. 2766, 125 L.Ed.2d 441 (1993). Any custodial arrest will come after a dancer has engaged in live nude dancing (nothing in the record suggests that the county will conduct pre- dance arrests, which would raise more serious First Amendment issues). The district court concluded that a post-dance arrest "places a prior restraint on later performances." But in the absence of proof that a dancer's arrest would be followed by extended custody, the only later performances likely to be restrained are additional live nude dances that night. See Kew v. Senter, 416 F.Supp. 1101, 1106 (N.D.Tex. 1976) ("Nor are future performances prevented, for the performer may post bail and resume her 'expression' as quickly as logistics permit"). *867 We conclude there is little risk that a custodial arrest will restrain a dancer's protected expressive conduct in later performances that same night. In obscenity cases, the Supreme Court has cautioned that police officers may not seize allegedly obscene materials without some prior judicial evaluation of the obscenity issue. See Roaden v. Kentucky, 413 U.S. 496, 505-06, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). This is a prior restraint concern that led the court to deny a motion to dismiss a suit to enjoin the arrest of exotic dancers under an obscenity ordinance in A dmiral Theatre v. City of Chicago, 832 F.Supp. 1195 (N.D.I11.1993). The district court relied on Admiral Theatre, noting that arresting officers must assess whether a performance has "serious artistic merit" to determine whether the Ordinance's theatrical exception applies. We disagree. While "serious artistic merit" is a component of obscenity jurisprudence, see Miller v. California, 413 U.S. 15,24,93 S.Ct. 2607,37 L.Ed.2d 419 (1973), the Ordinance is not obscenity-based. The Ordinance's exception applies only to a "theatrical Page 9 production performed in a theater by a professional or amateur theatrical or musical company." Thus, an arresting officer will know to a virtual certainty whether a particular live nude performance at Sugar Daddy's falls within the exception. If not, the Ordinance has been violated, and any similar performances later that evening would also violate the Ordinance. In these circumstances, we see no exceptional circumstances warranting pre-enforcement intrusion by a federal court of equity. Any prior restraint issues that may arise should the County elect to enforce the Ordinance through custodial arrest are better left for the state courts to resolve on a specific factual record. The judgment of the district court is reversed, and the case is remanded with directions to vacate the permanent injunction against "using custodial arrest as a means of enforcing Benton County Ordinance 332 against Plaintiffs or any other person." 171 F.Supp.2d at 985. In all other respects, the judgment of the district court is affirmed. 317F.3d856 Briefs and Other Related Documents (Back to top) • 2002 WL 32181447 (Appellate Brief) Cross-Appellant's Reply Brief (May. 07, 2002) END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 42 Pagel 779 F.2d 1074 (Cite as: 779 F.2d 1074) United States Court of Appeals, Fifth Circuit. STAR SATELLITE, INC., a Mississippi Corp., d/b/a Satellite News, Plaintiff- Appellant, v. CITY OF BILOXI, A Mississippi Municipal Corporation, Defendant-Appellee. No. 85-4068. Jan. 3,1986. Adult bookstore operator brought suit challenging zoning ordinance restricting location and operation of various commercial establishments in city. The United States District Court for the Southern District of Mississippi, Walter L. Nixon, Jr., Chief Judge, denied operator's motion for preliminary injunction, and operator appealed. The Court of Appeals, Jerre S. Williams, Circuit Judge, held that: (1) operator had standing to challenge time restrictions of ordinance; (2) operator did not have standing to assert rights of third parties who may have been affected by ordinance but who were not parties to the suit; (3) ordinance, limiting operations of bookstore to hours of 10 A.M. to 12 midnight, Mondays through Saturdays, and requiring bookstore to remain closed on Sundays, did not violate either First Amendment or equal protection principles; and (4) ordinance did not violate Mississippi blue laws. Affirmed. West Headnotes [1] Constitutional Law €=>42.1(1) 92k42.1(l) Most Cited Cases Adult bookstore operator had standing to challenge time restrictions set forth in city ordinance, limiting bookstore operations to hours of 10 A.M. to 12 midnight, Mondays through Saturdays, and requiring bookstore to remain closed on Sundays. U.S.C.A. Const. Amend. 1. [2] Constitutional Law €==>42.2(1) 92k42.2(l) Most Cited Cases Statute's overbreadth must not only be real, but substantial as well, judged in relation to statute's plainly legitimate sweep, in order to permit plaintiff to assert challenge of third parties to the statute. U.S.C.A. Const. Amend. 1. [3] Constitutional Law €=>42.2(1) 92k42.2(l) Most Cited Cases Adult bookstore operator was not entitled to assert rights of third parties who may have been affected by city ordinance restricting location and operation of various commercial establishments in city, but who were not parties to the action, in that ordinance did not present in its overall application substantial restraints upon First Amendment liberty, ordinance did not implicate First Amendment rights for some regulated uses, and sweep of ordinance was subject to state interpretation. U.S.C.A. Const. Amend. 1. [4] Constitutional Law €=>42.2(1) 92k42.2(l) Most Cited Cases Third party standing is not permitted when potentially overbroad statute is subject to a narrowing construction. U.S.C.A. ConstAmend. 1. [5] Constitutional Law €=>42.1(1) 92k42.1(l) Most Cited Cases Fact that a number of other businesses had become parties to suit recently did not grant adult bookstore standing to challenge all provisions of city ordinance restricting location and operation of various commercial establishments in city, in that bookstore operator was only party of record at time it sought to preliminarily enjoin enforcement of ordinance. [6] Injunction 212kl35 Most Cited Cases Decision to issue or not to issue a preliminary injunction is subject to considerable, though not unbridled, discretion in the district court. [7] Zoning and Planning 414k6 Most Cited Cases Community's zoning authority is a valid exercise of its police power. [8] Zoning and Planning 414k605 Most Cited Cases Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 Generally, zoning decisions are afforded considerable deference. [9] Constitutional Law €=90.1(1) 92k90.1(l) Most Cited Cases Where community's zoning plan infringes upon First Amendment rights, zoning plan must be narrowly drawn in furtherance of a substantial governmental interest. U.S.C.A. ConstAmend. 1. [10] Constitutional Law €=90(3) 92k90(3) Most Cited Cases Reasonable time, place, and manner regulation of protective speech, when necessary to further a significant governmental interest, is permitted. U.S.C.A. ConstAmend. 1. [11] Constitutional Law €=90.2 92k90.2 Most Cited Cases Subjecting commercial exploitation of First Amendment materials to reasonable zoning regulation does not constitute a "prior restraint." U.S.C.A. Const. Amend. 1. [12] Constitutional Law €=90.4(1) 92k90.4(l) Most Cited Cases City ordinance, limiting operations of adult bookstore to hours of 10 A.M. to 12 midnight, Mondays through Saturdays, and requiring bookstore to remain closed on Sundays, did not violate bookstore operator's First Amendment rights, in that time restrictions did not suppress all sexually explicit speech within city. U.S.C.A. ConstAmend. 1. [13] Obscenity €=2.1 281k2.1 Most Cited Cases (Formerly 28 Ik2) Community's interest in furthering welfare of its neighborhoods justifies its regulation of sexually explicit commercial speech so long as such regulation is restricted to protect designated neighborhoods justifiably and does not constitute broad ban on availability of such material throughout the community. U.S.C.A. ConstAmends. 1, 14. [14] Constitutional Law €=296(1) 92k296(l) Most Cited Cases City ordinance, limiting operations of adult bookstore to hours of 10 A.M. to 12 midnight, Mondays through Saturdays, and requiring bookstore to remain closed on Sundays, did not violate equal protection principles by allegedly singling out businesses which provided sexually explicit materials, in that ordinance's time of operation restrictions may have furthered significant community interest and may well have been no more restrictive than reasonable. U.S.C.A. Const. Amends. 1, 14. [15] Zoning and Planning €=167.1 414kl67.1 Most Cited Cases (Formerly 414kl67) Under Mississippi law, city had reasonable justification for rezoning certain areas to impose more stringent restrictions upon operation and location of various commercial establishments within city, where congestion and number of calls for police assistance had increased in areas in which regulated uses had concentrated, demonstrating that character of zoned areas and surrounding neighborhoods may have changed, and mistake may have been made in prior zoning regulations by permitting regulated uses to concentrate within neighborhoods. [16] Sunday €=2 369k2 Most Cited Cases Under Code 1972, § 97-223-75, city officials could prescribe hours on Sunday during which businesses otherwise exempt from Mississippi blue laws had to close, so that city ordinance, requiring adult bookstore to remain closed on Sundays, did not violate Mississippi blue laws. [17] Sunday €=2 369k2 Most Cited Cases Fact that Mississippi law allowed movie theaters to operate after 1 p.m. on Sundays did not mean that Mississippi Code 1972, § 97-23-75, permitting city officials to prescribe hours on Sundays during which businesses otherwise exempt from Mississippi blue laws had to close, discriminated against adult bookstore, after city adopted ordinance requiring bookstore to remain closed on Sundays, in that bookstore was not a movie theater but only sold films, videotapes, and video recordings. *1076 George F. Bloss, III, Gulfport, Miss., for plaintiff-appellant. Ronald G. Peresich, Tere R. Richardson, Biloxi, Miss., for defendant-appellee. Appeal from the United States District Court for the Southern District of Mississippi. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Before RUBIN, RANDALL and WILLIAMS, Circuit Judges. JERRE S. WILLIAMS, Circuit Judge. This case involves a challenge by appellant Star Satellite, Inc., against a zoning ordinance of the City of Biloxi, Mississippi. The ordinance restricts the location and the operation of various commercial establishments in Biloxi, including those that deal in adult books, magazines, and films. Star Satellite contends that the ordinance violates the First Amendment, the Fourteenth Amendment, and Mississippi state law. Star Satellite sought a preliminary injunction against the enforcement of the ordinance pending the outcome of its suit. The district court found that Star Satellite had standing only to challenge the ordinance's *1077 restrictions on the hours of operation and on the resale of the business. The district court denied Star Satellite's motion for a preliminary injunction as to these provisions. Star Satellite appeals the district court's denial of the injunction. 28 U.S.C. § 1292(b); Fed.RApp.P. 5. I. FACTS Star Satellite operates an adult bookstore in Biloxi. It sells sexually explicit books, magazines, films, video tapes, and video recordings. Star Satellite is located within an area zoned neighborhood commercial, and it has been at its present location for twenty years. On August 7, 1984, the City of Biloxi adopted Ordinance Number 1366. [FN1] The ordinance restricts the operations of a variety of businesses in Biloxi characterized as "regulated uses." Appellant's business clearly falls within the defined regulated uses. [FN2] These restrictions are of several kind: [FN3] Page 3 establishment, or a segment or section of an establishment, (1) having as a substantial or significant portion of its stock and trade, books, magazines and other periodicals which are distinguished or characterized by the emphasis on matter depicting, describing, or relating to sexually explicit materials as defined in Section 12-24.1(b)(l) of the Code of Ordinances of the City of Biloxi, or (2) selling or displaying books, magazines or other periodicals and customarily not open to the public generally but only to one or more classes of the public excluding any minor by reason of age as a prevailing practice. 4. An adult video recording store which is an establishment or a segment of an establishment (1) having as a substantial or significant portion of its stock and trade, film, video tape, or other video recordings which are distinguished or characterized by the emphasis on matter depicting, describing, or relating to sexually explicit material as defined in Section 12-24.1(b)(l) of the Code of Ordinances of the City of Biloxi, or (2) selling or displaying film, video tape or other video recordings and customarily not open to the public generally but only to one or more classes of the public excluding any minor by reason of age as a prevailing practice. * * * Other regulated uses include bars, nightclubs, and pool halls that serve liquor, and massage parlors. FN3. Biloxi Code of Ordinances at § (1) No building housing a regulated use may locate within 100 feet of an exclusive residential zoning district [FN4] or Keesler Air Force Base. FN1. Biloxi, Miss., Code of Ordinances of 1959, §§ 21-11.6,21-5.12,21-5.13. FN2. Regulated uses are defined in § 21-11.6(a) and include: * * * 3. An adult bookstore which is an Copr. © West 2004 No Claim to Orig. U.S. Govt. Works FN4. This restriction may be waived by the City Council upon receipt and verification of a petition requesting a waiver by at least sixty percent of the property owners within a 500 foot radius of the proposed location of a regulated use. (2) No regulated use may locate within a 500 foot radius of any other regulated use. Page 4 (3) A regulated use located within a residential or limited commercial zoning district and within 100 feet of any exclusive residential or medical services district, or within 1600 feet of Keesler Air Force Base, may not remain open for business past 12 midnight nor open before 10 A.M., Mondays through Saturdays, andnotat all on Sundays. (4) No regulated use may locate within 500 feet of any church, other established place of worship, or school. [FN5] FN5. The second and fourth restrictions may be waived by the City Council. (5) No certificate of zoning compliance or certificate of occupancy may be issued to a regulated use located within a residential or limited commercial zoning district and within 100 feet of any exclusive residential or medical services district, or within 1600 feet of Keesler Air Force Base, from and after three years of the date of the ordinance's official adoption. This provision not only prohibits the establishment of new regulated uses in these areas after the three year period has elapsed, but it also bars the sale of existing ones at that time. The ordinance was adopted after extensive study by the City of Biloxi. A committee specially appointed by the mayor made the original recommendations in November, 1983. These recommendations were reviewed *1078 by the Biloxi Planning Commission and the ordinance was developed from this review. Three public hearings were held during this period as well. At the public hearings a number of concerns were raised about the concentration of regulated uses within the city. It was mentioned that congestion and crime tended to increase as the concentration of regulated uses rose. Concern was also voiced over the effect of these businesses upon children and family life in surrounding neighborhoods. These concerns were summarized in the ordinance's preamble. The ordinance appears to be a comprehensive attempt by Biloxi city officials to control a particular kind of problem which many persons believe is common to urban communities today. It is not directed solely against adult bookstores and theaters, but it also regulates a variety of businesses serving alcohol that do not deal in First Amendment materials. Star Satellite brought suit to challenge the ordinance in the United States District Court for the Southern District of Mississippi on August 20,1984. It requested declaratory relief, injunctive relief, and damages. On September 21, 1984, Star Satellite moved for a preliminary injunction to bar the ordinance's enforcement. The district court found that Star Satellite did not have standing to challenge the ordinance except with regards to the hours of operation and Sunday closing restrictions, and the resale limitation. Star Satellite originally had filed this suit on behalf of a class of businesses affected by the ordinance. The district court, however, denied Star Satellite class certification. Star Satellite's appeal of the denial of class certification has been dismissed by this Court. Star Satellite v. Biloxi, No. 85-4068 (5th Cir. June 17,1985). Star Satellite appeals the denial of its motion for a preliminary injunction. II. STANDING [ 1 ] The ordinance affects Star Satellite only by limiting its operation to the hours of 10 A.M. to 12 midnight, Mondays through Saturdays, and by requiring it to remain closed on Sundays. We find that Star Satellite has standing to challenge these time restrictions. Star Satellite has made no showing that its owners intend to sell the business now or in the foreseeable future. While the district court found that Star Satellite had established standing to challenge the ordinance's resale restriction, we see no need to resolve that issue at this preliminary injunction phase of the case. Star Satellite, nonetheless, contends that it has standing to challenge the resale provisions and also the other provisions because the ordinance is overbroad on its face. It seeks to assert the rights of third parties who may be affected by the ordinance but who are not parties to this action. [2][3] Because an overbroad statute may deter people from engaging in constitutionally protected activity, courts have been willing to relax to some extent traditional standing restrictions. Broadrick v. Oklahoma, 413 U.S. 601,611,93 S.Ct. 2908,2915,37 L.Ed.2d 830 (1973). The exception is limited, however. A statute's overbreadth "must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Broadrick, 413 U.S. at 615 & n. 4,93 S.Ct. at 2918 & n. 4. The ordinance before us does not present in its overall application substantial restraints upon First Amendment liberty. The ordinance, indeed, does not even implicate First Amendment rights for some regulated uses. There are, moreover, many locations in Biloxi unaffected by the ordinance where First Amendment materials of the kind carried by Star Satellite may be sold. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS [4] [5] Third party standing is also not permitted when a potentially overbroad statute is subject to a narrowing construction. Young v. American Mini Theater, 427 U.S. 50,60,96 S.Ct. 2440,2447,49 L.Ed.2d 310. The sweep of this ordinance is subject to state interpretation. Cf. Red Bluff Drive-In, Inc. v. Vance, 648 F.2d 1020, 1034 (5th Cir.1981). Star Satellite *1079 contends, however, that the Mississippi Supreme Court will not provide such a construction. It argues that Mississippi courts will choose, instead, to place this responsibility on the legislature. ABC Interstate Theatres, Inc. v. State, 325 So.2d 123, 126 (Miss. 1976). We do not accept this anticipatory defeat of whatever legitimate claims other businesses may have. In Interstate Theatres, the Mississippi Supreme Court was asked to construe "authoritatively" a Mississippi statute prohibiting the showing, owning, or operating of any "obscene, indecent, or immoral" picture. The Mississippi Supreme Court refused to do so in large part because the state constitution mandated that the state legislature determine the meaning of criminal statutes. This conclusion, however, does not mean that the Mississippi Supreme Court has abdicated its responsibility to interpret legislative enactments. It will do so when it can ascertain the intent of the legislature and impose a reasonable construction upon a statute to save it from unconstitutionality. See Baker v. State, 327 So.2d 288, 291 (Miss. 1976). [FN6] FN6. Star Satellite also urges us to grant it standing to challenge all the ordinance's provisions because a number of other Biloxi businesses have become parties to this suit recently. We reject this entreaty as well. Whether or not new parties to this suit have standing to contest other provisions of the ordinance is of no avail to Star Satellite. Star Satellite was the only party of record at the time it sought a preliminary injunction. III. HOURS OF OPERATION RESTRICTIONS [6] A preliminary injunction may be issued only after the moving party has established four prerequisites: first, there is a substantial likelihood it will ultimately succeed on the merits; second, the moving party will suffer irreparable harm if the injunction is not issued; third, the threatened harm to the moving party will outweigh any potential injury the injunction may cause the opposing party; and finally, the injunction, if issued, will not be adverse to public interest. Canal Authority v. Galloway, 489 F.2d 567, 572 (5th Cir.1979). The decision to issue or not to issue an injunction is subject to considerable, though not unbridled, discretion in the district court. Id. The district court has not abused its discretion here. Star Satellite has not met the requisites with regard either to its claim under the United States Constitution or under state law. A. Constitutional Challenges [7][8][9] A community's zoning authority is a valid exercise of its police power. Basiardanes v. City of Galveston, 682 F.2d 1203, 1212 (5th Cir.1982). Generally zoning decisions are afforded considerable deference. Village of Belle Terre v. Boraas, 416 U.S. 1, 8, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974). When, however, a community's zoning plan infringes upon First Amendment rights, its validity becomes subject to greater concern. Zoning laws which implicate First Amendment considerations must be narrowly drawn in furtherance of a substantial governmental interest. Schad v. Borough of Mount Ephraim, 452 U.S. 61, 68, 101 S.Ct. 2176, 2182, 68 L.Ed.2d 671 (1981). [10][11][12] Reasonable time, place, and manner regulation of protected speech, when necessary to further a significant governmental interest, is permitted. Young v. AmericanMini Theatres, Inc., 427 U.S. 50,63 n. 18, 96 S.Ct. 2440, 2449 n. 18, 49 L.Ed.2d 310 (1976). Subjecting the commercial exploitation of First Amendment materials to reasonable zoning regulation does not constitute a prior restraint. Young, 427 U.S. at 62, 96 S.Ct. at 2448. The ordinance here questioned restricts the operation of regulated uses to fourteen hours a day six days a week. The time restrictions do not suppress all sexually explicit speech within Biloxi. The ordinance thus does not provide for the total exclusion of some kinds of speech, as did the ordinance in Schad. In Schad, the challenged ordinance prohibited all live entertainment within Mount Ephraim. 452 U.S. at 63, 101 S.Ct. at 2180. The Supreme Court held that this exclusion went beyond reasonable zoning regulation, and it struck *1080 down the ordinance. Appellant has not established the likelihood of success on this issue. Our decision in Beckerman v. City of Tupelo, 664 F.2d 502, 512 (5th Cir.1981), involving restrictions on parades, does not require us to invalidate the restrictions at issue here. We did not void the ordinance in Beckerman that prohibited the issuance of permits for parades held after 6 P.M. because it was unconstitutional to regulate parades. Rather, we held that the 6 P.M. restriction in Beckerman was arbitrary. It was not related to Tupelo's concern for parade security during evening hours because for much of the year it is daylight in Tupelo until well past 6 P.M. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 [13][14] Star Satellite also contends that the ordinance's hours of operation restrictions violate the Equal Protection guarantees of the Fourteenth Amendment in singling out businesses that provide sexually explicit materials. A community's interest in furthering the welfare of its neighborhoods justifies its regulation of sexually explicit commercial speech so long as such regulation is restricted to protect designated neighborhoods justifiably and does not constitute a broad ban on the availability of such material throughout the community. Young, 427 U.S. at 66, 96 S.Ct. at 2450. Because the ordinance's time of operation restrictions may further a significant community interest and may well be no more restrictive than reasonable, we find that Star Satellite has not shown the requisite likelihood of prevailing on this issue. As Star Satellite has not demonstrated a probability of success on the merits of its constitutional challenges, we must reject its motion for a preliminary injunction. It is, therefore, unnecessary for us to consider the remaining three prerequisites for the issuance of such an injunction. B. Pendent State Claims Star Satellite also presents two state challenges to the ordinance. [FN7] First, it contends that Biloxi has violated Mississippi law by rezoning without proving that there was either a mistake in the city's original zoning plan or that the character of the neighborhood to be rezoned has changed sufficiently to warrant such rezoning. Cloverleaf Mall Ltd. v. Conerly, 387 So.2d 736, 740 (Miss. 1980). Second, Star Satellite argues that the ordinance violates Mississippi's blue laws. Neither of these claims, however, supports Star Satellite's motion for a preliminary injunction. FN7. We consider these claims under the federal courts' pendent jurisdiction. United Mine Workers of America v. Gibbs, 383 U.S. 715, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). show that the character of the zoned areas and surrounding neighborhoods may have changed. Moreover, the reasonable possibility is raised that under Mississippi law a mistake was made in prior zoning regulations when regulated uses were permitted to concentrate within these neighborhoods. These grounds appear sufficient to raise reasonable justification for rezoning these areas to impose more stringent restrictions upon the location of regulated uses to the benefit of those areas and surrounding areas as well. Star Satellite, moreover, also has failed to show any injury other than mere financial loss because of this rezoning. As this injury is compensable, it does not qualify as irreparable. [16][17] Star Satellite's contention that the ordinance violates Mississippi's blue laws is without merit. Biloxi city officials may prescribe the hours on Sundays during which businesses otherwise exempt from the state's blue laws must close. Miss.Code Ann. § 97-23-75 (1972). Star Satellite *1081 also argues that § 97-23-81 of the Mississippi Code discriminates against it by allowing movie theaters to operate after 1 P.M. on Sundays. This argument does not persuade. Star Satellite is not a movie theater. It only sells films, video tapes, and video recordings. IV. CONCLUSION Star Satellite has standing to challenge the hours of operation and Sunday closing restrictions. A preliminary injunction is not warranted as to these provisions. Star Satellite has not demonstrated a substantial likelihood of prevailing on the merits. The judgment of the district court denying the preliminary injunction was correct. AFFIRMED. 779 F.2d 1074 END OF DOCUMENT [15] In urging application of Mississippi's mistake or change rule in zoning, Star Satellite has failed to show either a substantial likelihood of success on the merits or irreparable injury. Biloxi officials carefully studied the effects of regulated uses upon surrounding neighborhoods. There is ample evidence indicating an increase in congestion and in the number of calls for police assistance in areas where regulated uses concentrate. These developments in residential and limited commercial zoning districts throughout Biloxi Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 43 Page 1 Copr. © West 1999 No Claim to Orig. U.S. Govt. Works 81 Cal.Rptr.2d 6 69 Cal.App.4th 1, 99 Cal. Daily Op. Serv. 62 (Cite as: 81 Cal.Rptr.2d 6) TILY B., INC, Plaintiff and Appellant, v. CITY OF NEWPORT BEACH, Defendant and Respondent. TILY B., INC., Plaintiff and Respondent, v. CITY OF NEWPORT BEACH, Defendant and Appellant. CITY OF NEWPORT BEACH, Plaintiff and Respondent, v. An NGUYEN et al., Defendants and Appellants. Nos. G016950, G019250, G022132. Court of Appeal, Fourth District, Division 3, California. Nov. 30, 1998. As Modified on Denial of Rehearing Dec. 30, 1998. Adult entertainment establishment petitioned for writs of mandate, seeking to compel city to issue use and entertainment permits, challenging the constitutionality of an ordinance prohibiting nude dancing, and alleging deprivation of civil rights under § 1983. The Superior Court, Orange County, Nos.G016950, G019250, G022132, H. Warren Siegel, John C. Woolley and Francisco J. Firmat, JJ., refused to require issuance of permits, held the ordinance unconstitutional, granted summary judgment for city on civil rights claims, and enjoined the establishment from operating without required permits. On cross-appeals, the Court of Appeal, Bedsworth, J., held that: (1) ordinance implementing licensing scheme for restaurants violated First Amendment, but amended ordinance did not; (2) entertainment permit licensing scheme was not an unconstitutional prior restraint and did not violate establishment's due process rights; (3) "grandfather" clause of that scheme did not entitle establishment to a permit; (4) prohibition on totally nude dancing did not violate First Amendment and was not preempted by state law; (5) ordinance section generally prohibiting patrons from having physical contact with adult entertainers did not violate the First Amendment, but more specific "no contact" prohibitions were unconstitutionally overbroad; (6) stage height and distance requirements were constitutional; (7) prohibition against direct tipping was constitutional; (8) ordinance section imposing requirements on restroom attendants was not narrowly drawn, and was unconstitutional; (9) ordinance addressing nude dancing did not violate equal protection; (10) revocation/nonrenewal provisions of entertainment and adult business ordinances were not unconstitutional prior restraints on speech or unconstitutionally vague; and (11) civil rights claim was barred by limitations. Affirmed and reversed accordingly. [1] CONSTITUTIONAL LAW k90(3) 92k90(3) Any system of prior restraint comes bearing a heavy presumption against its constitutional validity. U.S.C.A. Const.Amend. 1. [2] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Nude dancing is expressive conduct within the outer perimeters of the First Amendment, though only marginally so, and thus, prior restraint of nude dancing comes bearing a heavy presumption against its constitutional validity. U.S.C.A. Const. Amend. 1. [3] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) Ordinance implementing licensing scheme for restaurants, by defining a "restaurant" as any place serving food or beverages, yet applying an additional primary use test to an adult entertainment establishment seeking permits, gave the city impermissible unbridled discretion in violation of the First Amendment; city was free to add primary use test or not, depending on the applicant, and thus to discourage disfavored expression in the form of nude dancing. Page 2 U.S.C.A. Const.Amend. 1. [3] THEATERS AND SHOWS k3 376k3 Ordinance implementing licensing scheme for restaurants, by defining a "restaurant" as any place serving food or beverages, yet applying an additional primary use test to an adult entertainment establishment seeking permits, gave the city impermissible unbridled discretion in violation of the First Amendment; city was free to add primary use test or not, depending on the applicant, and thus to discourage disfavored expression in the form of nude dancing. U.S.C.A. Const.Amend. 1. [4] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) Amended ordinance implementing licensing scheme for restaurants, by stating that a business could not qualify as a "restaurant" if more than 20 percent of its net public area was used for live entertainment or dancing, provided an objective standard sufficient to overcome a prior restraint challenge to its validity under the First Amendment lodged by an adult entertainment establishment. U.S.C.A. Const.Amend. 1. [4] THEATERS AND SHOWS k3 376k3 Amended ordinance implementing licensing scheme for restaurants, by stating that a business could not qualify as a "restaurant" if more than 20 percent of its net public area was used for live entertainment or dancing, provided an objective standard sufficient to overcome a prior restraint challenge to its validity under the First Amendment lodged by an adult entertainment establishment. U.S.C.A. Const.Amend. 1. [4] THEATERS AND SHOWS k3.50 376k3.50 Amended ordinance implementing licensing scheme for restaurants, by stating that a business could not qualify as a "restaurant" if more than 20 percent of its net public area was used for live entertainment or dancing, provided an objective standard sufficient to overcome a prior restraint challenge to its validity under the First Amendment lodged by an adult entertainment establishment. U.S.C.A. Const.Amend. 1. [5] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) City's entertainment permit licensing scheme was not an unconstitutional prior restraint on adult entertainment establishment's First Amendment rights, despite claims that city manager could consider any evidence bearing on application, that ordinance set no standards for review by city council, and that it set no time limit on application process; city manager was bound to make decision based on objective standards that were definite, narrow and specific, city council was also bound by those standards, and ordinance provided time limit for denial as well as approval of applications. U.S.C.A. Const.Amend. 1. [5] THEATERS AND SHOWS k3 376k3 City's entertainment permit licensing scheme was not an unconstitutional prior restraint on adult entertainment establishment's First Amendment rights, despite claims that city manager could consider any evidence bearing on application, that ordinance set no standards for review by city council, and that it set no time limit on application process; city manager was bound to make decision based on objective standards that were definite, narrow and specific, city council was also bound by those standards, and ordinance provided time limit for denial as well as approval of applications. U.S.C.A. Const.Amend. 1. [6] CONSTITUTIONAL LAW k287.2(l) 92k287.2(l) Adult entertainment establishment's due process rights were not violated by city's entertainment permit licensing scheme; establishment was told in detail why its application was denied, and was given ample opportunity to contest the evidence. U.S.C.A. Const.Amend. 14. [6] THEATERS AND SHOWS k3 376k3 Adult entertainment establishment's due process rights were not violated by city's entertainment permit licensing scheme; establishment was told in detail why its application was denied, and was given ample opportunity to contest the evidence. U.S.C.A. Const.Amend. 14. [7] THEATERS AND SHOWS k3 376k3 "Grandfather" clause of city's entertainment permit licensing scheme, creating an existing permit exception, did not entitle adult entertainment establishment to a permit on ground that city failed to act on its initial application; while the city could not criminally Page 3 prosecute the establishment for operating without a permit, the establishment did not have a permit, and thus, could not be grandfathered in under the exception. [8] CONSTITUTIONAL LAW k90.4(5) 92k90.4(5) City ordinance's prohibition on totally nude dancing did not violate First Amendment; the prohibition, applicable to club owners and managers, rather man performers, mandated the minimum covering of pasties and a g-string. U.S.C.A. Const.Amend. 1. [8] THEATERS AND SHOWS k3.50 376k3.50 City ordinance's prohibition on totally nude dancing did not violate First Amendment; the prohibition, applicable to club owners and managers, rather than performers, mandated the minimum covering of pasties and a g-string. U.S.C.A. Const.Amend. 1. [9] COURTS k90(2) 106k90(2) When a fragmented United States Supreme Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those members who concurred in the judgments on the narrowest grounds. [10] APPEAL AND ERROR k!70(2) 30kl70(2) Constitutionality of nude dancing ordinance's exemption for "live theatrical performances performed in a concert hall, or other similar establishment located on public land" was not challenged below, and exemption could not be attacked for the first time on appeal. [11] MUNICIPAL CORPORATIONS k592(l) 268k592(l) State law did not preempt city ordinance prohibiting nude dancing; ordinance was regulatory, not criminal, as permit revocation was the only sanction, and the ordinance fell squarely within the area left open to local regulation, i.e., nudity in clubs serving food and beverages or those open to the public. West's Ann.Cal.Penal Code §§ 318.5, 318.6. [11] THEATERS AND SHOWS k3.50 376k3.50 State law did not preempt city ordinance prohibiting nude dancing; ordinance was regulatory, not criminal, as permit revocation was the only sanction, and the ordinance fell squarely within the area left open to local regulation, i.e., nudity in clubs serving food and beverages or those open to the public. West's Ann.Cal.Penal Code §§ 318.5, 318.6. [12] MUNICIPAL CORPORATIONS k592(l) 268k592(l) State law preempts local legislation if an ordinance duplicates, contradicts, or enters an area fully occupied by the general laws, either expressly or by implication; if the field has been fully occupied by the state, there is no room for supplementary or complementary local legislation. [13] MUNICIPAL CORPORATIONS k592(l) 268k592(l) While the state has preempted the criminal aspects of sexual activity, localities remain free to regulate and license such conduct through noncriminal provisions. [14] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) General no-contact rule in city ordinance, prohibiting patrons from having physical contact with adult entertainers, did not violate the First Amendment; city could reasonably have concluded that separating entertainers from customers reduced the opportunity for prostitution and drug dealing, and the restriction was no more than necessary, as the message of the erotic dance was not lessened by allowing customers to look but not touch. U.S.C.A. Const.Amend. 1. [14] THEATERS AND SHOWS k3.50 376k3.50 General no-contact rule in city ordinance, prohibiting patrons from having physical contact with adult entertainers, did not violate the First Amendment; city could reasonably have concluded that separating entertainers from customers reduced the opportunity for prostitution and drug dealing, and the restriction was no more than necessary, as the message of the erotic dance was not lessened by allowing customers to look but not touch. U.S.C.A. Const.Amend. 1. [15] CONSTITUTIONAL LAW k82(10) 92k82(10) Phrase "physical contact," as used in provision of city ordinance generally prohibiting patrons from Page 4 having physical contact with adult entertainers, did not render the provision void for vagueness; ordinary ecdysiast, and her admirers, would understand what was, and what was not, physical contact. [15] THEATERS AND SHOWS R3.50 376k3.50 Phrase "physical contact," as used in provision of city ordinance generally prohibiting patrons from having physical contact with adult entertainers, did not render the provision void for vagueness; ordinary ecdysiast, and her admirers, would understand what was, and what was not, physical contact. [16] CONSTITUTIONAL LAW k82(10) 92k82(10) Provisions of ordinance addressing nude dancing, one prohibiting an "entertainer or [nonmanagerial] employee" from allowing "patrons" to engage in specified sexual acts, and another prohibiting the same individuals from allowing "any person" to touch, caress or fondle certain anatomical parts of "any other person," were unconstitutionally overbroad; neither entertainers nor nonmanagerial employees ordinarily had control over conduct between patrons of a club nor, presumably, the authority to eject them, and thus, restrictions were not narrowly drawn to achieve city's legitimate goals. [16] THEATERS AND SHOWS k3.50 376k3.50 Provisions of ordinance addressing nude dancing, one prohibiting an "entertainer or [nonmanagerial] employee" from allowing "patrons" to engage in specified sexual acts, and another prohibiting the same individuals from allowing "any person" to touch, caress or fondle certain anatomical parts of "any other person," were unconstitutionally overbroad; neither entertainers nor nonmanagerial employees ordinarily had control over conduct between patrons of a club nor, presumably, the authority to eject them, and thus, restrictions were not narrowly drawn to achieve city's legitimate goals. [17] CONSTITUTIONAL LAW k82(10) 92k82(10) Ordinance sections prohibiting an entertainer or nonmanagerial employee of an adult entertainment establishment from allowing patrons to engage in the "fondling or stimulation" of human genitals, pubic region, buttocks, or female breasts, and from allowing any person to engage in "touching], caressfing] or fondlfing]" the breasts, buttocks, anus, or genitals of any other person, were not void for vagueness; what was meant by "fondling" and "stimulation" was easily understood by the person of ordinary intelligence, and the words "touch, caress or fondle" in the context used were clear enough to anyone so inclined. [17] MUNICIPAL CORPORATIONS k594(2) 268k594(2) Ordinance sections prohibiting an entertainer or nonmanagerial employee of an adult entertainment establishment from allowing patrons to engage in the "fondling or stimulation" of human genitals, pubic region, buttocks, or female breasts, and from allowing any person to engage in "touching], caress[ing] or fondl[ing]" the breasts, buttocks, anus, or genitals of any other person, were not void for vagueness; what was meant by "fondling" and "stimulation" was easily understood by the person of ordinary intelligence, and the words "touch, caress or fondle" in the context used were clear enough to anyone so inclined. [17] THEATERS AND SHOWS k3 376k3 Ordinance sections prohibiting an entertainer or nonmanagerial employee of an adult entertainment establishment from allowing patrons to engage in the "fondling or stimulation" of human genitals, pubic region, buttocks, or female breasts, and from allowing any person to engage in "touch[ing], caress[ing] or fondl[ing]" the breasts, buttocks, anus, or genitals of any other person, were not void for vagueness; what was meant by "fondling" and "stimulation" was easily understood by the person of ordinary intelligence, and the words "touch, caress or fondle" in the context used were clear enough to anyone so inclined. [18] CONSTITUTIONAL LAW k82(10) 92k82(10) Nude dancing ordinance sections requiring entertainers to perform on a stage at least 18 inches high and six feet away from patrons furthered city's interest in crime and disease prevention, were narrowly tailored to meet that goal, and were constitutional. U.S.C.A. Const. Amend. 1. [18] THEATERS AND SHOWS k3.50 Page 5 376k3.50 Nude dancing ordinance sections requiring entertainers to perform on a stage at least 18 inches high and six feet away from patrons furthered city's interest in crime and disease prevention, were narrowly tailored to meet that goal, and were constitutional. U.S.C.A. Const. Amend. 1. [19] CONSTITUTIONAL LAW k82(10) 92k82(10) Requirement of ordinance addressing nude dancing, that stage be "six (6) feet from the nearest area occupied by patrons," was not unconstitutionally vague, despite difficulties in configuring an adult entertainment establishment to comply. [19] THEATERS AND SHOWS k3.50 376k3.50 Requirement of ordinance addressing nude dancing, that stage be "six (6) feet from the nearest area occupied by patrons," was not unconstitutionally vague, despite difficulties in configuring an adult entertainment establishment to comply. [20] CONSTITUTIONAL LAW k90.4(3) 92k9p.4(3) Prohibition against direct tipping in ordinance addressing nude dancing was constitutional under the First Amendment; preventing the exchange of money between dancers and patrons reduced the likelihood of illicit transactions and, while the tipping prohibition may have denied patrons one means of expressing pleasure with the dancer's performance, sufficient alternative methods of communication existed for patrons to convey the same message. U.S.C.A. Const.Amend. 1. [20] THEATERS AND SHOWS k3.50 376k3.50 Prohibition against direct tipping in ordinance addressing nude dancing was constitutional under the First Amendment; preventing the exchange of money between dancers and patrons reduced the likelihood of illicit transactions and, while the tipping prohibition may have denied patrons one means of expressing pleasure with the dancer's performance, sufficient alternative methods of communication existed for patrons to convey the same message. U.S.C.A. Const.Amend. 1. [21] CONSTITUTIONAL LAW k82(10) 92k82(10) Prohibition against "direct" tipping in ordinance addressing nude dancing was not unconstitutionally vague; person of ordinary intelligence would understand this to mean that a customer could not place money in the hand, or upon the person, of an entertainer. See publication Words and Phrases for other judicial constructions and definitions. [21] THEATERS AND SHOWS k3.50 376k3.5p Prohibition against "direct" tipping in ordinance addressing nude dancing was not unconstitutionally vague; person of ordinary intelligence would understand this to mean that a customer could not place money in the hand, or upon the person, of an entertainer. See publication Words and Phrases for other judicial constructions and definitions. [22] APPEAL AND ERROR k!70(2) 30kl70(2) Court would not consider claim, raised for the first time on appeal, that ordinance addressing nude dancing was unconstitutional because it prohibited solicitation of tips; city asserted that it would have introduced evidence that this was never enforced. [23] CONSTITUTIONAL LAW k82(10) 92k82(10) Requirement of ordinance directing restroom attendants at adult entertainment establishments to prevent "any person" from engaging in "specified sexual activities," which were defined elsewhere to include "touching [... ] nude human genitals, pubic region, [or] buttocks," and "human excretion [or] urination," was not narrowly drawn to meet city's legitimate goal of preventing prostitution and other illegal sexual activities when restrooms were left unmonitored, and was unconstitutional. [23] THEATERS AND SHOWS k3 376k3 Requirement of ordinance directing restroom attendants at adult entertainment establishments to prevent "any person" from engaging in "specified sexual activities," which were defined elsewhere to include "touching [... ] nude human genitals, pubic region, [or] buttocks," and "human excretion [or] urination," was not narrowly drawn to meet city's legitimate goal of preventing prostitution and other illegal sexual activities when restrooms were left unmonitored, and was unconstitutional. [24] CONSTITUTIONAL LAW k82(10) 92k82(10) There was no constitutional right to privacy in the restrooms of a place of public accommodation, and thus, ordinance directing restroom attendants at adult entertainment establishments to prevent "any person" from engaging in "specified sexual activities," which were defined elsewhere to include "touching [... ] nude human genitals, pubic region, [or] buttocks," and "human excretion [or] urination," did not violate patrons' right of privacy. [24] THEATERS AND SHOWS k3 376k3 There was no constitutional right to privacy in the restrooms of a place of public accommodation, and thus, ordinance directing restroom attendants at adult entertainment establishments to prevent "any person" from engaging in "specified sexual activities," which were defined elsewhere to include "touching [... ] nude human genitals, pubic region, [or] buttocks," and "humanexcretion [or] urination," did not violate patrons' right of privacy. [25] CONSTITUTIONAL LAW k240(4) 92k240(4) Fact that regulations of ordinance addressing nude dancing applied only to adult oriented businesses did not deny adult entertainment establishment equal protection of the law; religious and nonprofit organizations did not pose the secondary problems of crime and risk to public health that led the city to regulate adult oriented establishments. U.S.C.A. Const.Amend. 14. [25] THEATERS AND SHOWS k3.50 376k3.50 Fact that regulations of ordinance addressing nude dancing applied only to adult oriented businesses did not deny adult entertainment establishment equal protection of the law; religious and nonprofit organizations did not pose the secondary problems of crime and risk to public health that led the city to regulate adult oriented establishments. U.S.C.A. Const.Amend. 14. [26] MUNICIPAL CORPORATIONS k611 268k611 State and local governments may regulate adult businesses differently than others, as long as the regulations are content neutral and aimed at curtailing the secondary effects associated with Page 6 such businesses. U.S.C.A. Const.Amend. 14. [27] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Giving an administrator unbridled discretion to issue a permit for a sexually oriented business is an unconstitutional prior restraint on speech. U.S.C.A. Const.Amend. 1. [28] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Revocation/nonrenewal provisions of entertainment and adult business ordinances, providing that manager "may" revoke an entertainment permit for one of seven listed reasons, but apparently leaving manager discretion not to revoke even when he could, were not unconstitutional prior restraints on speech, despite claim that they gave city manager too much discretion. U.S.C.A. Const.Amend. 1. [28] THEATERS AND SHOWS k3 376k3 Revocation/nonrenewal provisions of entertainment and adult business ordinances, providing that manager "may" revoke an entertainment permit for one of seven listed reasons, but apparently leaving manager discretion not to revoke even when he could, were not unconstitutional prior restraints on speech, despite claim that they gave city manager too much discretion. U.S.C.A. Const.Amend. 1. [29] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Revocation/nonrenewal provisions of entertainment and adult business ordinances, allowing revocation of permit if an applicant "gave materially ... misleading" information on the application, were not unconstitutional prior restraints on speech, despite claim that absence of scienter requirement left city manager too much discretion; provisions did not purport to let manager choose to revoke or not based on applicant's reasons for submitting misleading information, and there was no suggestion of any infirmity in the city revoking a permit it was misled into granting. U.S.C.A. Const.Amend. 1. [29] CONSTITUTIONAL LAW k90.4(3) 92k90.4(3) Revocation/nonrenewal provisions of entertainment and adult business ordinances, allowing revocation of permit if an applicant "gave materially ... misleading" information on Page? the application, were not unconstitutional prior restraints on speech, despite claim that absence of scienter requirement left city manager too much discretion; provisions did not purport to let manager choose to revoke or not based on applicant's reasons for submitting misleading information, and there was no suggestion of any infirmity in the city revoking a permit it was misled into granting. U.S.C.A. Const.Amend. 1. [29] MUNICIPAL CORPORATIONS k621 268k621 Revocation/nonrenewal provisions of entertainment and adult business ordinances, allowing revocation of permit if an applicant "gave materially ... misleading" information on the application, were not unconstitutional prior restraints on speech, despite claim that absence of scienter requirement left city manager too much discretion; provisions did not purport to let manager choose to revoke or not based on applicant's reasons for submitting misleading information, and there was no suggestion of any infirmity in the city revoking a permit it was misled into granting. U.S.C.A. Const.Amend. 1. [29] THEATERS AND SHOWS k3 376k3 Revocation/nonrenewal provisions of entertainment and adult business ordinances, allowing revocation of permit if an applicant "gave materially ... misleading" information on the application, were not unconstitutional prior restraints on speech, despite claim that absence of scienter requirement left city manager too much discretion; provisions did not purport to let manager choose to revoke or not based on applicant's reasons for submitting misleading information, and there was no suggestion of any infirmity in the city revoking a permit it was misled into granting. U.S.C.A. Const.Amend. 1. [30] CONSTITUTIONAL LAW k90.4(l) 92k90.4(l) Ordinance section allowing a city manager to automatically renew adult-oriented business permits if the business "has not changed," but requires city manager's review if there had been "[a]ny change or alteration in that [sic] nature or operation" of the business was not unconstitutional prior restraint on speech, despite claim that it left city manager too much discretion; manager was bound to an objective standard. U.S.C.A. Const.Amend. 1. [30] MUNICIPAL CORPORATIONS k621 268k621 Ordinance section allowing a city manager to automatically renew adult-oriented business permits if the business "has not changed," but requires city manager's review if there had been "[a]ny change or alteration in that [sic] nature or operation" of the business was not unconstitutional prior restraint on speech, despite claim that it left city manager too much discretion; manager was bound to an objective standard. U.S.C.A. Const.Amend. 1. [31] CONSTITUTIONAL LAW k82(10) 92k82(10) Ordinance section allowing a city manager to automatically renew adult-oriented business permits if the business "has not changed," but requires city manager's review if there had been "[a]ny change or alteration in that [sic] nature or operation" of the business was not unconstitutionally vague; manager was bound to an objective standard, and there was nothing unclear about the language used or any risk of arbitrary or discriminatory enforcement. [31] MUNICIPAL CORPORATIONS k621 268k621 Ordinance section allowing a city manager to automatically renew adult-oriented business permits if the business "has not changed," but requires city manager's review if there had been "[a]ny change or alteration in that [sic] nature or operation" of the business was not unconstitutionally vague; manager was bound to an objective standard, and there was nothing unclear about the language used or any risk of arbitrary or discriminatory enforcement. [32] LIMITATION OF ACTIONS k2(4) 241k2(4) Statute of limitations applicable to § 1983 actions is a state law question, and in California it is one year from the date plaintiff knew, or reasonably should have known, of the alleged injury. 42 U.S.C.A. § 1983. [32] LIMITATION OF ACTIONS k95(15) 241k95(15) Statute of limitations applicable to § 1983 actions is a state law question, and in California it is one year from the date plaintiff knew, or reasonably should have known, of the alleged injury. 42 U.S.C.A. § 1983. PageS *10 Ronald Talmo, Fullerton, for Plaintiff and Appellant in No. G016950, for Plaintiff and Respondent in No. G019250, and for Defendants and Appellants in No. G022132. Rutan & Tucker and Jeffrey A. Goldfarb, Costa Mesa, Robert H. Burnham, City Attorney, and Robin Clauson, Assistant City Attorney for Defendant and Respondent in No. GO 16950, for Defendant and Appellant in No. G019250, and for Plaintiff and Respondent in No. G022132. Freilich, Kaufman, Fox & Sohagi, Deborah J. Fox, Benjamin Kaufman, Los Angeles, and Dawn R. Andrews, Long Beach as Amicus Curiae on behalf of Defendant and Appellant in No. G019250. OPINION BEDSWORTH, J. The sine qua non of a life in the law is a willingness to devote a great deal of thought to issues which seldom concern non-lawyers. In this case, for example, we discuss appropriate ways in which to distinguish a theater from a restaurant—something with which the general public seems to have absolutely no *11 difficulty, but which regularly defies the best efforts of courts and counsel. This is a dispute over the extent to which the City of Newport Beach may constitutionally regulate the operation of the Mermaid, an adult entertainment establishment owned and operated by Tily B., Inc., of which An and Olivia Nguyen are the sole shareholders (Mermaid). The Mermaid appeals first from a judgment denying its petitions for writs of mandate to compel the city to issue use and entertainment permits. The city appeals from a judgment holding unconstitutional an ordinance prohibiting nude dancing (the "pasties and g-string" ordinance) and granting a writ of mandate directing it to repeal the ordinance. The Mermaid reconfigured its club to meet city requirements and obtained the needed permits, later revoked by the city, and now it also appeals from a judgment that denied its petition for a writ of mandate ordering the city to set aside the revocation/nonrenewal of its permits, granted summary judgment for the city on the Mermaid's claims for deprivation of civil rights under 42 United States Code, section 1983, and permanently enjoined the Mermaid operating without required city permits. from The Mermaid argues that city ordinances violated its rights under the United States and California Constitutions, and that there were triable issues of fact on its federal civil rights claims precluding summary judgment. The city, in turn, argues that its pasties and g-string ordinance is constitutional. We hold the city did not violate the Mermaid's constitutional rights in denying the initial permit applications and affirm the decision in case number GO 16950. The pasties and g-string ordinance is constitutional, so we reverse the decision in case number GO 19250. The city did not violate the Mermaid's constitutional rights in revoking the later-issued permits, and summary judgment against the Mermaid on the civil rights claims was proper, so we affirm the decision in case number G022132. I In 1993, the Nguyens bought a vacant restaurant in Newport Beach. Included in the purchase was a conditional use permit to operate a restaurant with live band music. They wanted to change the fare to adult entertainment and rename the establishment the Mermaid. The Newport Beach Municipal Code then required a use permit to operate a restaurant, and required an amended permit be obtained prior to any change in the operational characteristics of the business. (Newport Beach Mun.Code, § 20.72.020.) [FN1] The Nguyens applied to the city planning commission to amend their use permit to allow them to serve lunch, dinner and snacks, and to offer entertainment on six "theater stages" and in a number of booths for private "couch dances." The planning commission denied the application because of inadequate parking space, and the Nguyens appealed to the city council. FN1. All references to "section" are to the Newport Beach Municipal Code. In February 1994, the city council denied the application because the Mermaid did not qualify as a restaurant, the only use for which the site was zoned. The city council found the Mermaid was a theater with ancillary food service, applying a "principal use" or "primary use" test Page 9 not found in its zoning ordinances, which defined a restaurant as a "business which sells or serves food ... for consumption on the premises." (§ 20.72.010.) The finding was based on the Mermaid's submitted plan to use approximately 32 percent of the net public area for entertainment, its admission that "food and drink [service] ... is incidental to the entertainment being provided," and its description in its business license application of the proposed business as "adult theater[s]" with food and beverage service. In October 1994, admittedly as the result of the Mermaid's lawsuit, the city amended its definition of restaurant to codify the unwritten interpretation. The amended provision defined a restaurant as a business "with the principal purpose" of selling food and beverages for on-premises consumption, adding the requirement that "the area devoted *12 to live entertainment and/or dancing does not exceed twenty (20) percent of the 'net public area.' " (Newport Beach Ord. No. 94-52.) Newport Beach also required an entertainment permit for any business that wanted to provide entertainment in a place where food and beverages were served. [FN2] In November 1993, the Nguyens applied for an entertainment permit to offer adult entertainment. The entertainment ordinance as then written did not require the city to act on an application within any stated time, [FN3] and it neither granted nor denied the Nguyen's application. FN2. Section 5.28.020, in effect in 1993, required a permit to offer entertainment "in a restaurant, cafe, night club, bar, coffee house, or other place where food or beverages are served...." Section 5.28 was substantially revised in January 1994 and all further references are to the current code unless otherwise stated. FN3. Section 5.28.040 in effect in 1993 did not impose any time within which the city manager had to make a decision on the application. The city concedes this was undeniably unconstitutional (FW/PBS, Inc. v. City of Dallas (1990) 493 U.S. 215, 226, 110 S.Ct. 596, 107 L.Ed.2d 603) and admits it amended the ordinance in response to the Mermaid's challenge. In January 1994, the city amended its live entertainment ordinance by emergency action that recited as the need for urgency that "an adult business is planning to open within the City within the next few weeks." (Newport Beach Ord. 94-7, § 1.) The Nguyens submitted a second application for an entertainment permit, under the new ordinance, to offer "striptease/cabaret/burlesque where female entertainers will ... progress from clothed to semi-clothed to nude." The city manager, and then the city council, denied the application for the same reason that the use permit was denied: The Mermaid was a theater but the site was zoned only for restaurant use. In October 1994, the trial judge denied the Mermaid's writ petitions. The Mermaid argues the city's licensing scheme for restaurants, as applied, was an unconstitutional prior restraint on its freedom of speech. It says the unwritten primary use test gave the city too much discretion, enabling it to censor the Mermaid's erotic message while allowing others it considered less objectionable to have a use permit. We agree, but conclude that because the amended ordinance cured this defect, the city was not required to issue the use permit. [1][2] "Any system of prior restraint... 'comes ... bearing a heavy presumption against its constitutional validity.' " (Southeastern Promotions, Ltd. v. Conrad (1975) 420 U.S. 546, 558, 95 S.Ct. 1239, 43 L.Ed.2d 448.) Nude dancing comes within this rule because it is "expressive conduct within the outer perimeters of the First Amendment, though ... only marginally so." (Barnes v. Glen Theatre, Inc. (1991) 501 U.S. 560, 566, 111 S.Ct. 2456, 115 L.Ed.2d 504.) In the leading case dealing with the licensing of sexually oriented businesses, the Supreme Court observed that "[o]ur cases addressing prior restraints have identified two evils that will not be tolerated in such schemes. First, a scheme that places 'unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.' [Citations.].... flj Second, a prior restraint that fails to place limits on the time within which the decisionmaker must issue the license is impermissible. [Citations.]" (FW/PBS, Inc. v. City of Dallas (1990) 493 U.S. 215,225-226, 110 S.Ct. 596, 107L.Ed.2d603.) Page 10 [FN4] FN4. In FW/PBS, Inc., the court struck down the licensing scheme before it because "the Dallas scheme does not provide for an effective limitation on the time within which the licensor's decision must be made. It also fails to provide an avenue for prompt judicial review so as to minimize suppression of the speech in the event of a license denial." (FW/PBS, Inc. v. City of Dallas, supra, 493 U.S. at p. 229, 110 S.Ct. 596.) We discuss the court's holding below in Part I(B), where we consider, but reject, the Mermaid's claim that Newport Beach's denial of its application for an entertainment permit was similarly unconstitutional. Applying these principles, the California Supreme Court struck down a bookstore licensing ordinance that neither set standards for issuing a license nor guaranteed one would be issued even if the applicant met all the stated conditions. It explained the rule is that "[statutes which authorize public officials *13 to license conduct protected by the First Amendment must set forth definite, objective guidelines for the issuance of such licenses." (Perrine v. Municipal Court (1971) 5 Cal.Sd 656, 661, 97 Cal.Rptr. 320, 488 P.2d 648.) More recently, in holding unconstitutional a Georgia ordinance that imposed a discretionary fee for a permit required before speaking on public property, the United States Supreme Court explained, "it simply cannot be said that there are any 'narrowly drawn, reasonable and definite standards' [citation] guiding the hand of the Forsyth County administrator. The decision of how much to charge for police protection or administrative time~or even whether to charge at all—is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county's established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official." (Forsyth County, Ga. v. Nationalist Movement (1992) 505 U.S. 123, 132-133, 112 S.Ct. 2395, 120 L.Ed.2d 101, fns. omitted, italics added.) [3] The Newport Beach licensing scheme, by defining a restaurant as any place serving food or beverages, yet applying an additional primary use test to the Mermaid, gave the city precisely that impermissible unbridled discretion. (Forsyth County, Ga. v. Nationalist Movement, supra, 505 U.S. 123, 112 S.Ct. 2395.) The city was free to add that gloss or not, depending on the applicant, and thus to discourage disfavored expression in the form of nude dancing. The record reveals a stark example of just such naked discrimination. The city gave the Classic Q billiards parlor, across the parking lot from the Mermaid, a use permit as a restaurant while admitting it didn't know how much food was served there. It now says it "erred" in licensing the pool hall. Another view would be that the city exercised its discretion to censor the Mermaid while approving the Classic Q, explicable perhaps, but nonetheless unconstitutional. The city does not direct us to any standards governing its issuance of use permits, nor have we found any. Its claim of a general policy applying a primary use standard is unpersuasive, particularly in light of its failure to apply that standard to the Classic Q. The findings for denial prepared by the planning department, and submitted to the city council prior to the hearing, recited that 32 percent of the Mermaid's public space would be used for entertainment. Yet after the Mermaid argued it devoted a substantial portion of that space to food service, the city's planning director changed his figure, testifying at the hearing that upon further review, he concluded that 75 percent of the net public area was for entertainment. The city argues the primary use test should be implied from the code's definition of "accessory use" as "incidental and accessory to the principal use." (§ 20.87.350.) But the argument is far too tenuous. There is no definition of primary use, and the code definition of "use" undercuts the city's position when it speaks not a word about the claimed primary use test. "Use" is defined as "the purpose for which ... [the] premises ... is designed, arranged or intended or ... is or may be occupied or maintained." [4] The definition of restaurant in the amended ordinance is another matter. That definition provides precisely the objective standard Page 11 previously missing: It says that a business cannot qualify as a restaurant if more than 20 percent of its net public area is used for live entertainment or dancing. Under Selby Realty Co. v. City of San Buenaventura (1973) 10 Cal.3d 110, 109 Cal.Rptr. 799, 514 P.2d 111, we apply the amended ordinance rather than the one in existence at the time the permit was denied "to prevent an appellate court from issuing orders ... contrary to presently existing legislative provisions." (Id. at p. 125, 109 Cal.Rptr. 799, 514 P.2d 111.) [FN5] Since the Mermaid's plan *14 was for more than 20 percent entertainment space, the trial judge was correct to deny the writ to compel the city to issue a use permit based on the Mermaid's 1993 application. FN5. We note that in 1997, Newport Beach again amended its ordinances governing restaurants and live entertainment. Under the current scheme, no longer is there a definition of restaurant. However, the 20 percent rule is still used to distinguish between eating and entertainment establishments. "Eating and drinking establishments" are defined as "businesses with the principal purpose to serve prepared food or beverages for consumption on or off the premises" (§ 20.05.050(K)), while "cabarets and nightclubs" are defined as "establishments with the principal purpose of providing live entertainment and/or dancing occupying more than twenty (20) percent of the net public area in conjunction with the serving of food and/or beverages." (§ 20.05.050(I)(3).) Since the Mermaid's plan was to use more than 20 percent of its space for entertainment, it would not be an eating establishment under the new classification, but rather a cabaret. The Mermaid argues the amended ordinance too was unconstitutional because the city still had impermissible discretion to deny a restaurant use permit even if an establishment met the 20 percent rule, since there are no standards governing the additional requirement that the "primary purpose" be the sale of food. We need not decide the point. It is of no avail to the Mermaid in its as-applied challenge to the ordinance, for the Mermaid admittedly failed to meet the objective 20 percent test. Hence there was no issue of discretion as the amended ordinance was applied to the Mermaid. B Any business wanting to offer entertainment in Newport Beach must obtain an entertainment permit. (§ 5.28.020.) The city manager is required to approve and issue the permit within 10 business days of receipt of a completed application if the stated requirements are met. If not, he must deny the application. (§ 5.28.040, subd. A.) The application must describe the proposed entertainment, provide a site plan, interior floor plan, information about the owner and operator, anticipated opening date, and whether any prior permits were revoked. (§ 5.28.035.) Other requirements are that the business be located in a zone permitting the proposed use, that it provide security guards, sound absorbing insulation, proper signs, indoor patron areas open to view, an on-site manager, and maintain certain hours of operation. (§ 5.28.040, subd. B.) In addition, the applicant must assure the city it will meet a list of specific, objective operational requirements. (§ 5.28.041.) [FN6] FN6. We discuss the Mermaid's challenges to these latter requirements in Part III(A). Written notice of the decision must be served personally or by mail at the address on the application. (§ 5.28.040, subd. (A).) An aggrieved applicant may appeal the city manager's denial of a permit by filing a statement with the city clerk within 15 days "following the deposit of a certified letter" advising the applicant of the denial. The city council must hold a hearing at the earlier of 20 days after receiving the notice of appeal or its next regularly scheduled meeting. The hearing can be before the city council, or it can appoint a hearing officer to receive evidence and submit to it findings and recommendations. The city council must render its decision within five days of the hearing or receipt of the hearing officer's findings and recommendations. (§ 5.28.070.) [5] The Mermaid challenges the city's entertainment permit licensing scheme as a prior restraint on its First Amendment rights, arguing the ordinance is unconstitutional on its face. It says the city manager has too much discretion because he may consider any evidence bearing on the application, the ordinance sets no standards for review by the city council, and sets no time limit on the application process. The Mermaid Page 12 also charges procedural due process is lacking, because the city manager was not required to give notice of information used to deny the permit, and because it was denied the opportunity for a hearing on the evidence he relied upon. [FN7] FN7. The Mermaid also facially challenges the revocation process for allowing, but not requiring, the city manager to revoke an entertainment permit when the stated conditions were met, and again for providing no standards for review by the city council. We consider this and other arguments addressing the revocation process in Part III(B), in connection with the revocation of the Mermaid's permits in 1996. *15 The provisions challenged by the Mermaid do not violate the First Amendment. There is nothing impermissible in authorizing the city manager to "conduct an investigation" to determine if a proposed business complies with municipal requirements. (§5.28.040, subd. A.) It would be preposterous to do otherwise. The First Amendment does not require Newport Beach to accept the Mermaid's word that it meets the permit requirements. However the evidence is obtained, the city manager is bound to decide on objective standards that are definite, narrow and specific. That is what the constitution requires, and these standards pass that muster. (Forsyth County, Ga. v. Nationalist Movement, supra, 505 U.S. 123, 112 S.Ct. 2395, 120 L.Ed.2d 101.) The city council, no less than the city manager, was bound by the standards for approval set out in the ordinance, which it duly applied. Likewise, the scheme satisfies the requirement that "the license for a First Amendment-protected business must be issued within a reasonable period of time, because undue delay results in the unconstitutional suppression of protected speech." (FW/PBS, Inc. v. City of Dallas, supra, 493 U.S. at p. 228, 110 S.Ct. 596.) It strains even credulity to suggest, as the Mermaid does, that the ordinance provides only a time limit for approval and none for denial. The city manager must issue a permit after ten days if the requirements are met. At that point, if no permit is issued, the application is denied and an appeal lies to the city council. While the ordinance does not state when the required written notice of denial must be sent, formal notice is not a prerequisite to appeal. Since an appeal may be taken from "any ... failure to act upon the part of the City Manager in ... failing to issue ... any permit under this Chapter ...," the lack of a provision establishing formal notice requirements for a denial is irrelevant. (§ 5.28.070.) Nor is the apparent inconsistency in form of the denial notice one that rises to constitutional dimensions. If the city fails to mail a certified letter advising of the denial, the only consequence is that a 15-day period in which to file an appeal is tolled, since that clock begins to run only upon the mailing of a certified letter of denial. [FN8] FN8. Section 5.28.070 provides for the procedure and timing of appeals as follows: "If an applicant is aggrieved by any action or failure to act upon the part of the City Manager in issuing, failing to issue, suspending or revoking any permit under this Chapter, such applicant may appeal to thev City Council by filing with the City Clerk a statement addressed to the City Council setting forth the facts and circumstances regarding the action or failure to act on the part of the City Manager.... [fl The right to appeal to the City Council from the denial, suspension or revocation of any permit required by the Chapter shall terminate upon the expiration of fifteen (15) days following the deposit of a certified letter in the United States Post Office advising the applicant of the action of the City Manager and of his or her right to appeal such action to the City Council." [6] We are equally unconvinced the Mermaid's due process rights were violated. It was told in detail why the application was denied, and given ample opportunity to contest the evidence. The city manager notified the Mermaid that he denied the application in a letter setting out the facts he relied on, his reasons, and the applicable code sections. [FN9] In addition, prior to the hearing, the city attorney gave the Mermaid the staff report on the application and the proposed decision denying the permit. At the hearing, counsel for the Mermaid had sufficient opportunity to contest at length each reason for denial. FN9. In a letter dated February 8, 1994, to the city manager told Mr. Nguyen that the Mermaid's plan to operate as a Page 13 theater was not allowed on the site, that three of the proposed five individual "theaters" in the club violated the stage height and/or separation requirements, and that three of the "theaters" violated the prohibition against blocking the view into theater areas. [7] The Mermaid finally argues it obtained an entertainment permit by default when the city failed to act on its initial 1993 application. It points out section 5.28.090 states that the amended (1994) Chapter 5.28 does not affect "any valid live entertainment permit in effect as of the date of this ordinance...." However, this "grandfather" clause does not mean the Mermaid got a permit. While the city could not criminally prosecute the club for operating without a permit (People v. Library One (1991) 229 Cal.App.3d 973, 280 Cal.Rptr. 400), the Mermaid *16 did not have a permit and so could not be grandfathered in under the existing permit exception. (See Seven Seventy Corp. v. County of Clark (1996 Nev..) 112 Nev. 185, 911 P.2d 1187, 1190.) II [8] We turn next to the Newport Beach "pasties and g-string ordinance," enacted in 1995. (Newport Beach Ord. 95-15.) [FN10] The city argues its prohibition on total nudity is constitutional under Barnes v. Glen Theatre, Inc., supra, 501 U.S. 560, 111 S.Ct. 2456, 115 L.Ed.2d 504, and we agree. The trial judge was not at liberty to apply a contrary state decision inconsistent with Barnes, and he erred in issuing the writ to repeal the ordinance. FN10. The pasties and g-string ordinance as originally enacted was codified in Chapter 10.54 as section 10.54.020, subdivision (d) (Newport Beach Ord. 95-15), but later recodified in Chapter 5.28 as the present sections 5.28.041, subdivisions (R) and (S). (Newport Beach Ord. 96-5.) The city's ordinance is somewhat unusual, in that it is directed at owners and managers of adult-oriented businesses, rather than performers. Section 5.28.041, subdivision (R) provides that "[n]o owner or other person with managerial control over an adult-oriented business ... shall permit any person on the premises ... to engage in a live showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, and/or the female breasts with less than a fully opaque covering over any part of the nipple or areola and/or covered male genitals in a discernibly turgid state." [FN11] Violation is not criminal, but instead subject to being enjoined as a public nuisance, and the only sanction is revocation of a club's entertainment and adult-oriented business permits. (§ 5.28.110.) "Adult- oriented business" is broadly defined (§ 5.96.010) and there is no dispute that the Mermaid is such. FN11. Section 5.28.041, subdivision (R) applies to an adult oriented business "which is not a theater, concert hall or similar establishment primarily devoted to theatrical performances, ..." (italics added) and subdivision (S) imposes the same prohibition on an adult oriented business "which is a theater, concert hall or similar establishment primarily devoted to theatrical performances...." (Italics added.) Barnes was a suit by two establishments and individual nude dancers, to enjoin enforcement of an Indiana public indecency law on the ground it violated their First Amendment rights. The statute made it a misdemeanor to "knowingly or intentionally, in a public place ... appear[ ] in a state of nudity," defined as "the showing of the human male or female genitals, pubic area, or buttocks with less than a fully opaque covering, the showing of the female breast with less than a fully opaque covering or any part of the nipple, or the showing of the covered male genitals in a discernibly turgid state." (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 569, 111 S.Ct. 2456.) In a plurality opinion concurred in by Justices Souter and Scalia, the court upheld the Indiana law. [9] "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....' [Citation.]" (Marks v. United States (1977) 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260.) Thus, Justice Souter's opinion, as the narrowest concurrence, states the law applicable. [FN12] FN12. Justice Scalia concurred "because, as a general law regulating Page 14 conduct and not specifically directed at expression, [the statute] is not subject to First Amendment scrutiny at all." (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 572, 111 S.Ct. 2456.) Justice Souter took the position that "an interest in freely engaging in the nude dancing at issue here is subject to a degree of First Amendment protection" (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 581, 111 S.Ct. 2456), and that the appropriate analysis for judging the limits of state action burdening expressive acts, as distinct from pure speech, is the test laid down in United States v. O'Brien (1968) 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672. (501 U.S. at p. 582, 111 S.Ct. 2456.) Under O'Brien, a government regulation is sufficiently justified if: (1) it is within the constitutional power of the *17 government; (2) it furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression; and (4) the incidental restriction on the alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. (Id. at p. 567, 111 S.Ct. 2456.) He differed from the plurality only on the second element of O'Brien, as to what government interest is sufficient to justify prohibiting nude dancing, as we discuss below. On the first element, Justice Souter and the plurality agreed, the indecency statute was clearly within the constitutional power of the state. On the second element, the plurality found a substantial government interest in protecting order and morality. (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 569, 111 S.Ct. 2456.) Justice Souter, however, rested his concurrence "not on the possible sufficiency of society's moral views to justify the limitations at issue, but on the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by [Glen Theatre]." (Id. at p. 582, 111 S.Ct. 2456.) Thus, "the State of Indiana could reasonably conclude that forbidding nude entertainment of the type offered at the Kitty Kat Lounge and the Glen Theatre's 'bookstore' furthers its interest in preventing prostitution, sexual assault, and associated crimes." (Id. at p. 584, 111 S.Ct. 2456.) Justice Souter and the plurality agreed that Indiana met the third O'Brien condition, that the government interest be unrelated to the suppression of free expression. Justice Souter said the Indiana statute was content neutral because "on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression." (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 585, 111 S.Ct. 2456.) He explained that "[b]ecause the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils ... the interest is unrelated to the suppression of free expression. [City of] Renton [v. Playtime Theatres, Inc. (1986) 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29] is again persuasive in support of this conclusion. In Renton, we held that an ordinance that regulated adult theaters because the presence of such theaters was correlated with the secondary effects that the local government had an interest in regulating was content neutral ... because it was 'justified without reference to the content of the regulated speech. 475 U.S. at 48, 106 S.Ct. 925 [parallel citation omitted] (emphasis in original).' " (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 586, 111 S.Ct. 2456.) [FN13] FN13. Justice Souter said the Indiana statute was content neutral because "on its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression." (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 585, 111 S.Ct. 2456.) He explained that "[b]ecause the State's interest in banning nude dancing results from a simple correlation of such dancing with other evils ... the interest is unrelated to the suppression of free expression." (Ibid.) The plurality and Justice Souter agreed that the fourth element of O'Brien was met, because the statute was narrowly tailored. As Justice Souter explained, "[d]ropping the final stitch is prohibited, but the limitation is minor when measured against the dancer's remaining capacity and opportunity to express the erotic message." (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 587, 111 S.Ct. 2456.) The Newport Beach ordinance satisfies Barnes and is constitutional. Although the prohibition applies to club owners and managers rather than performers, the substance is the same in mandating the minimum covering of pasties and a g-string. The city enacted the ordinance in part Page 15 to deal with the "undesirable secondary effects associated with [adult-oriented] entertainment" (Newport Beach Mun. Ord. 95-15), which is a sufficient governmental interest to justify the restrictions. The ordinance is content neutral, since the city seeks to combat the secondary effects of adult businesses, not suppress expression. And, like the identical provision in Barnes, the "requirement that the dancers wear at least pasties and G- strings is modest, and the bare minimum necessary to achieve the [city's] purpose." (Barnes v. Glen Theatre, Inc., supra, 501 U.S. at p. 572, 111 S.Ct. 2456.) *18 The Mermaid takes an untenable position when it argues the trial judge was correct to follow Morris v. Municipal Court (1982) 32 Cal.3d 553, 186 Cal.Rptr. 494, 652 P.2d 51, which struck down an ordinance prohibiting nude dancing. Morris was a state court interpretation of federal constitutional law since foreclosed by Barnes. While California might prohibit restrictions on nude dancing that the United States Constitution does not, such was not the decision in Morris. Simply put, it held a county's interest in public morality was insufficient under the First Amendment to justify infringing on the expressive conduct in nude dancing. (Id. at p. 566, 186 Cal.Rptr. 494, 652 P.2d 51.) Barnes held otherwise: that a governmental interest in preventing the secondary effects attendant upon adult businesses is sufficient to justify a ban on nude dancing. [10] The Mermaid seeks to distinguish Barnes because the pasties and g- string ordinance exempts "live theatrical performances performed in a concert hall, or other similar establishment located on public land." (§ 10.54.030, subd. B.) We too doubt the constitutionality of section 10.54.030, subdivision B. But since it was not challenged below, it cannot be attacked for the first time on appeal. (Planned Protective Services, Inc. v. Gorton (1988) 200 Cal.App.3d 1, 12-13, 245 Cal.Rptr. 790.) [FN14] FN14. The city assures us it meant to delete the exemption and will enact legislation so doing. If it fails to follow through, the Mermaid remains free to renew this challenge to the pasties and g-string ordinance. [11] Alternatively, the Mermaid argues the Newport Beach ordinance is invalid because it exceeds the police power delegated by the state Constitution to local authorities to "make and enforce within its limits all local, police, sanitary and other ordinances and regulations not in conflict with general laws." (Cal. Const., art. XI, § 7.) It appears to argue that state law prohibiting obscene conduct in public (Pen.Code, §311.6) prevents the city from regulating nudity. Again, the argument is wide of the mark. [12] [13] State law preempts local legislation if an ordinance duplicates, contradicts, or enters an area fully occupied by the general laws, either expressly or by implication. If the field has been fully occupied by the state, there is no room for supplementary or complementary local legislation. (Cohen v. Board of Supervisors (1985) 40 Cal.3d 277, 290, 219 Cal.Rptr. 467, 707 P.2d 840.) While the state has preempted the criminal aspects of sexual activity (Lancaster v. Municipal Court (1972) 6 Cal.3d 805, 808, 100 Cal.Rptr. 609, 494 P.2d 681), localities remain free to regulate and license such conduct through non-criminal provisions. (Cohen v. Board of Supervisors, supra, 40 Cal.3d at p. 296, 219 Cal.Rptr. 467, 707 P.2d 840 [licensing of escort services]; EWAP, Inc. v. City of Los Angeles (1979) 97 Cal.App.3d 179, 191, 158 Cal.Rptr. 579 [licensing of peep shows]; cf. Eckl v. Davis (1975) 51 Cal.App.3d 831, 843, 124 Cal.Rptr. 685 [nudity prohibited in public parks and on public beaches].) Moreover, state law specifically allows cities to prohibit entertainers and employees from appearing nude in clubs that serve food or beverages (Pen.Code, § 318.5), and to prohibit nude "acts, demonstrations, or exhibitions" in places open to the public so long as the ordinance does not contradict the Penal Code. (Pen.Code, § 318.6.) State law thus does not preempt the Newport Beach ordinance. The city's ordinance is regulatory, not criminal, since permit revocation is the only sanction. More pointedly, the ordinance falls squarely within the area left open to local regulation, that is, nudity in clubs serving food and beverages or those open to the public. A noncriminal licensing statute aimed at activities expressly left open to local regulation does not conflict with the general law and is valid. (Brix v. City of San Rafael (1979) 92 Cal.App.3d 47, 53, 154 Cal.Rptr. 647.) Ill In early 1995, the Mermaid redesigned its space to comply with the city's definition of a Page 16 restaurant and applied anew for an entertainment permit. By then, the city had enacted an adult-oriented business ordinance that required an adult business permit, for which the Mermaid also applied. Following negotiations *19 to cure defects noted by the city, it issued an entertainment and an adult-oriented business permit to the Mermaid. [FN15] FN15. The Mermaid makes no mention of a use permit, still required, so we can only assume it received that permit as well. The Mermaid opened for business in February 1996, and admits it failed from the first to abide by the live entertainment and adult business regulations. [FN16] The city manager sent the Mermaid a warning letter listing each of the violations, to no avail. He then revoked the club's entertainment permit and refused to renew its adult business permit. [FN17] The Mermaid appealed to the city council, which appointed a private judge as a hearing officer to take evidence and make a recommendation. The hearing officer sustained the violations and recommended denying the appeal. The city agreed and, in October 1996, affirmed the revocation/nonrenewal of the permits. FN16. Newport Beach police officers confirmed this during eight visits to the club. Among other reported incidents, they saw "Cinnamon" perform a "couch dance" where she "rubb[ed] her groin on a patron's leg." "Ava" removed her top to let a customer "suckle on her breast" and "press[ed] her breast against the sides of [a] customer's head." "Lydia" sat in a customer's lap "rubbing her breasts in his face," then "standing on his legs, thrusting her pubic area within two or three inches of his face, and rubb[ed] his crotch with her hand." "Monique," dancing nude, "hugged and kissed a customer while soliciting [him] for a totally nude table dance for $40." And so on. FN17. One of the requirements for an adult business permit is having a valid entertainment permit (§ 5.96.025, subd. Q), and the adult business permit may be revoked for a violation of the live entertainment regulations. (§ 5.96.045, subd. B(5).) We read this to mean that the city can refuse to renew an adult business permit if the live entertainment regulations are violated, as they were here, although the city manager also relied on other violations of the adult business regulations in refusing to renew the Mermaid's adult business permit. In November 1996, the city sued the Nguyens, the Mermaid and its employees to enforce its ordinances, after finding the club remained open and operating despite having no permits. The Mermaid cross-complained for a writ of mandate to compel the city to set aside the revocation/nonrenewal of the permits. It also alleged civil rights violations under 42 United States Code section 1983 and the California Constitution, claiming the city had adopted "an official policy" against nude dancing, as shown by the city's enacting its ordinances and enforcing them against the Mermaid. The trial court denied the writ, granted the city summary judgment on its complaint and the Mermaid's cross-complaint, and permanently enjoined the Nguyens and Mermaid from providing any "entertainment" or operating an "Adult Oriented Business," as defined in sections 5.28.010 and 5.96.010 respectively, without valid permits. The Mermaid argues the ordinances it admittedly flouted were unconstitutional, violating its rights to free speech and due process. This is right in part, but it is not a big enough part to save the Mermaid. Although three of the six challenged provisions are invalid, the others are constitutional. We agree with the trial judge that the city did not infringe the Mermaid's constitutional rights in revoking its entertainment permit and refusing to renew its adult business permit. The Mermaid challenges three no-touching rules. One prohibits, in general terms, "physical contact" between entertainers and patrons (§ 5.28.041, subd. L.) Two others are more detailed. The city code also states that "[n]o operator, entertainer, or employee ... shall permit to be performed, offer to perform, perform or allow patrons to perform" sexual intercourse, copulation, "fondling or stimulation" of the genitals, breasts, buttocks or pubic area (§ 5.28.041, subd. A). And it also says that no "operator, entertainer, or employee ... shall encourage or permit any person" to touch, caress Page 17 or fondle the breasts, buttocks, anus or genitals of "any other person." (§ 5.28.041, subd. B.) The remaining rules attacked by the Mermaid deal with stage height and distance, tipping, and restroom attendants. Newport Beach requires entertainers to perform on a stage at least 18 inches high and 6 feet away from patrons (§ 5.28.041, subd. D). It prohibits *20 direct tipping of entertainers by patrons (§ 5.28.041, subd. Q), and requires an attendant be stationed in the restroom to prevent specified activities. [FN18] (§ 5.96.025, subd. L.) FN18. They are just what you would imagine. Under Barnes v. Glen Theatre, Inc., we apply the four part O'Brien test to evaluate the Mermaid's claims that the ordinances violate its right to free expression. The first element, the constitutional power of Newport Beach to enact the ordinance, is not in issue. The second element, that the ordinance further a substantial governmental interest, is met because the city enacted these restrictions to combat prostitution, sexually transmitted diseases, criminal activity, and the secondary effects of adult entertainment establishments (Newport Beach Ord. 94-7). (Barnes v. Glen Theatre Inc., supra, 501 U.S. at pp. 582-583, 111 S.Ct. 2456, Souter, J., cone.) As we explain below, each of the challenged restrictions furthers that interest. The third O'Brien element is met because the goals of crime and disease prevention are content neutral (Id. at p. 585, 111 S.Ct. 2456, Souter, J., cone.). The fourth element is that the restrictions be no greater than necessary to achieve the goal. As we discuss below, some of the challenged restrictions fail to satisfy this requirement, but others are unobjectionable. [14] [15] In enacting the general no-contact rule prohibiting patrons from having physical contact with entertainers found in section 5.28.041, subdivision L, [FN19] the city could reasonably conclude that separating entertainers from customers reduces the opportunity for prostitution and drug dealing. The restriction is no more than necessary, for the message of the erotic dance is not lessened by allowing customers to look but not touch, and the provision is constitutional. (Hang on, Inc. v. City of Arlington (1995 5th Cir..) 65 F.3d 1248, 1254; Kev, Inc. v. Kitsap County (1986 9th Cir..) 793 F.2d 1053, 1061.) The phrase "physical contact" does not render the section void for vagueness. What is constitutionally required is that terms be defined with "sufficient defmiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement." (Kolender v. Lawson (1983) 461 U.S. 352, 357, 103 S.Ct. 1855, 75 L.Ed.2d 903.) We are confident that the ordinary ecdysiast, and her admirers, understand what is, and what is not, physical contact. [FN20] FN19. Section 5.28.041, subdivision L provides as follows: "No entertainer shall have physical contact with any patron and no patron shall have physical contact with any entertainer while on the premises." (This designation as subd. "L" follows the current statutory classification; in an earlier codification the provision was denominated as subd. "(e)".) FN20. The Mermaid argues in its petition for rehearing that we failed to address a separate argument that the no-touching and stage height/distance requirements violate the state constitution. But we didn't find the argument in its briefs before and we don't now. To the extent the Mermaid is raising again, in an oblique way, its invitation that we expand state constitutional law to grant more protection to the nude dance than afforded under the federal constitution, we still find no warrant to do so. [16] On the other hand, the city's two more detailed no-contact rules are overbroad. Section 5.28.041, subdivision A prohibits an "entertainer or [nonmanagerial] employee" from allowing "patrons" to engage in specified sexual acts, [FN21] and section 5.28.041, subdivision B prohibits the same individuals from allowing "any person" to touch, caress or fondle certain anatomical parts of "any other person." [FN22] Neither entertainers nor nonmanagerial employees ordinarily have control over conduct between patrons of a club nor, presumably, the authority to eject them. Under these sections, the city could revoke an adult business's permit because an entertainer or waiter/waitress failed to stop one *21 patron from fondling another patron. These restrictions are thus not narrowly drawn to achieve the city's legitimate goals. Page 18 (Barnes v. Glen Theatre Inc., supra, 501 U.S. at p. 587, 111 S.Ct. 2456, Souter, J., cone.) FN21. Section 5.28.041, subdivision A provides: "No operator, entertainer, or employee of a place of entertainment shall permit to be performed, or offer to perform, perform or allow patrons to perform sexual intercourse, oral or anal copulation, fondling or stimulation of human genitals, pubic region buttocks, or female breasts." FN22. Section 5.28.041, subdivision B provides: "No operator, entertainer, or employee of a place of entertainment shall encourage or permit any person upon the premises to touch, caress or fondle the breasts, buttocks, anus or genitals of any other person." [17] However, neither of these sections are void for vagueness, as the Mermaid also alleges. Section 5.28.041, subdivision A prohibits the "fondling or stimulation" of human genitals, pubic region, buttocks, or female breasts. What is meant by "fondling" and "stimulation" is easily understood by the person of ordinary intelligence. Section 5.28.041, subdivision B prohibits "touching], caress[ing] or fondl[ing]" the breasts, buttocks, anus or genitals of any other person. Again, the words "touch, caress or fondle" in the context used are clear enough to anyone so inclined. [18] [19] The stage height and distance requirements found in section 5.28.041, subd. D further the city's interest in crime and disease prevention, they are narrowly tailored to meet that goal, and they are constitutional. [FN23] (DLS, Inc. v. City of Chattanooga (1997 6th Cir..) 107 F.3d 403, 411.) "[I]t is reasonable to conclude that the six-foot [stage distance] rule would further the state interests in the prevention of crime and disease. A prohibition on contact certainly limits the spread of disease." (Ibid.) Contrary to the Mermaid's argument, the requirement that the stage be "six (6) feet from the nearest area occupied by patrons" is not vague. Difficulties in configuring the club to comply do not vagueness make. FN23. Section 5.28.041, subdivision D provides: "No person shall perform for patrons any entertainment ... except upon a stage at least eighteen (18) inches above the level of the floor which is separated by a distance of at least six feet from the nearest area occupied by patrons, and no patron shall be permitted within six feet of the stage while the state is occupied by an entertainer. This subsection shall not apply to individual viewing areas where the stage is completely separated from the viewing area, floor to ceiling, by plexiglass or other clear permanent barrier." [20] The no direct tipping rule of section 5.28.041, subdivision Q, [FN24] is likewise constitutional. (Kev, Inc. v. Kitsap County, supra, 793 F.2d at pp. 1061-1062.) Preventing the exchange of money between dancers and patrons reduces the likelihood of illicit transactions and, "[w]hile the tipping prohibition may deny the patron one means of expressing pleasure with the dancer's performance, sufficient alternative methods of communication exist for the patron to convey the same message." (Id. at p. 1062.) FN24. Section 5.28.041, subdivision Q provides: "No patron, guest or invitee shall directly pay or give any gratuity to any performer, dancer, employee or model and no dancer, performer, employee or model shall solicit any pay or gratuity from any person." [21] The Mermaid vagueness challenge fails here too. Nothing is vague in the rule that a customer may not "directly" tip an entertainer. A person of ordinary intelligence would understand this to mean a customer cannot place money in the hand, or upon the person, of an entertainer. Moreover, the regulation does not prohibit entertainers from receiving compensation for their work; it permissibly regulates the manner of one form of compensation, tipping. That the regulation may increase the Mermaid's cost of doing business, if forced to pay dancers more to make up for less tips, does not make it unconstitutional. (Spokane Arcade, Inc. v. City of Spokane (1996 9th Cir..) 75 F.3d 663, 666.) [22] The Mermaid raises for the first time on appeal the additional theory that the ordinance is unconstitutional because it prohibits solicitation of tips. As the city says it would have introduced evidence that this was never enforced (and it was not enforced against the Mermaid), we decline to consider the argument under the rule that a new Page 19 theory based on unproven facts may not be raised on appeal. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847, 60 Cal.Rptr.2d 780.) [23] [24] The restroom attendant requirement in section 5.96.025 subdivisionL, [FN25] however, *22 is not narrowly drawn to meet the city's legitimate goal of preventing prostitution and other illegal sexual activities when restrooms are left unmonitored, and is unconstitutional. As the Mermaid points out, the way the ordinance is drawn, the attendant is required to prevent patrons from using the facilities for their intended sanitary purposes. It directs the attendant to prevent "any person" from engaging in "specified sexual activities" which are defined elsewhere to include "touching [ ] nude human genitals, pubic region, [or] buttocks," and "humanexcretion [or] urination." (§ 5.96.010, "specified sexual activities," subds. 4, 7.) But the claim that the section also violates patrons' right of privacy is without merit. Whatever individual sensibilities, there is no constitutional right to privacy in the restrooms of a place of public accommodation that the Mermaid is able to point to, nor that we are able to find or imagine. (See Ellwest Stereo Theatres, Inc. v. Wenner (1982 9th Cir..) 681 F.2d 1243, 1247-1248.) FN25. Section 5.96.025 requires the city manager to issue an adult- oriented business permit if he finds the application complies with the requirements of the section. Subdivision L provides: "... Only one person shall be allowed in the restroom at any time, unless otherwise required by law, in which case the adult oriented business shall employ a restroom attendant who shall be present in the restroom during operating hours who shall prevent any person(s) from engaging in any specified sexual activities within the restroom." [25] The Mermaid argues that because the regulations apply only to adult oriented businesses, the city denies it equal protection of the law. As additional evidence, the Mermaid points out that entertainment permits are not required of religious organizations and "bona fide" non-profit organizations, defined as those incorporated for benevolent, charitable, dramatic or literary purposes with an established membership and regular meetings, using any profits for the benefit of the organization. (§ 5.28.090, subd. D.) [26] There is no equal protection violation. State and local governments may regulate adult businesses differently than others, as long as the regulations are content neutral and aimed at curtailing the secondary effects associated with such businesses, which they are here. (Mitchell v. Commission on Adult Entertainment Establishments of State of Del. (1993 3rd Cir..) 10 F.3d 123, 144, fn. 22; Young v. American Mini Theatres (1976) 427 U.S. 50, 71-72, 96 S.Ct. 2440, 49 L.Ed.2d 310.) Religious and nonprofit organizations do not pose the secondary problems of crime and risk to public health that led the city to regulate adult oriented establishments, so this distinction is permissible. [FN26] FN26. In 1997, the city amended section 5.28.090 to delete subdivision D (Newport Beach Ord. 97-12), explaining it was never used and was unnecessary. B The Mermaid next argues the revocation/nonrenewal provisions of the entertainment and adult business ordinances, respectively, are unconstitutional because they give the city manager too much discretion. To the contrary, both are well within the law. [27] Giving an administrator unbridled discretion to issue a permit for a sexually oriented business is an unconstitutional prior restraint on speech. (Southeastern Promotions, Ltd. v. Conrad, supra, 420 U.S. at p. 558, 95 S.Ct. 1239.) Assuming, without deciding, that the same discretion to revoke a permit once given would be equally fatal, the Newport Beach scheme is far removed from such a risk. [28] The Mermaid challenges section 5.28.060 because the city manager "may" revoke an entertainment permit for one of seven listed reasons. [FN27] That the city manager apparently has discretion not to revoke, even when he can, is not fatal. The vice of too much discretion is that it allows an administrator to silence disfavored speech but allow the favored. Here that is not a risk. The Mermaid paints the unlikely scenario of the city manager overlooking another violating adult business, while revoking its own permit. Yet the net result would be that some nude dancing escaped the city's censure. Page 20 Put in free speech terms, there would be more freedom of expression, in the form of *23 escaped thespians, rather than less. The discretion to allow this is not unconstitutional. FN27. We note that the Mermaid does not challenge the grounds upon which its entertainment permit was revoked, namely, that it ceased to meet the requirements for issuance of a permit and operated in violation of the ordinance. (§ 5.28.060, subds. A, G.) [29] The Mermaid also says that allowing revocation if an applicant "gave materially ... misleading" information on the application (§ 5.28.060, subd. B) leaves the city manager too much discretion, since there is no scienter requirement. We find no flaw in the provision. There simply isn't any issue of discretion here. The code doesn't purport to let the city manager choose to revoke or not based on the applicant's reasons for submitting misleading information, and the Mermaid does not suggest any infirmity in the city revoking a permit it was misled into granting. [30] [31] The Mermaid challenges section 5.96.035 that allows an official to automatically renew adult-oriented business permits if the business "has not changed," but requires the city manager's review if there has been "[a]ny change or alteration in that [sic] nature or operation" of the business. The Mermaid says this leaves the city manager too much discretion and is void for vagueness. It is mistaken. Allowing the city manager to determine if a renewal application reveals a business different from the one previously licensed does not vest him with impermissible discretion, for he is bound to an objective standard. An adult business permit is valid for one year (§ 5.96.030) and a new application must be submitted to renew. (§ 5.96.035.) The city manager is required to issue a permit, initially or on a renewal application, if the applicant satisfies enumerated requirements (§ 5.96.025), which the Mermaid does not challenge. The discretion to trigger a full application review must be read in light of the objective permit requirements, and it must be based on a change that calls into question the continued satisfaction of the requirements. So read, no unconstitutional discretion exists. Likewise, the section is not unconstitutionally vague precisely because of the objective standards. There is nothing unclear about the language used nor any risk of arbitrary or discriminatory enforcement, which are the concerns behind the void-for- vagueness doctrine. The Mermaid also takes the extreme, unsupported, and incorrect position that the First Amendment prohibits revocation of its permits. Perrine v. Municipal Court, supra, 5 Cal.3d at page 662, 97 Cal.Rptr. 320, 488 P.2d 648 does not support this proposition, and held only that a bookstore licensing ordinance was unconstitutional when it conferred virtually unlimited authority to deny any application. The trial judge was correct to deny the Mermaid's writ petition to compel the city to rescind its decision to revoke the club's entertainment permit and not renew its adult business permit. Finally, the Mermaid argues it raised triable issues of fact on its civil rights cross-complaint, so summary judgment for the city was improper. To the contrary, the record reveals no fact disputes, and the civil rights claim is barred by the statute of limitations. The trial judge was correct in granting summary judgment. The cross-complaint alleged a violation of 42 United States Code section 1983, which authorizes an action for deprivation of civil rights under color of law. The Mermaid claimed there existed an official city policy to prevent nude and semi-nude entertainment, violating its constitutional rights to free speech, equal protection, due process and privacy. It alleged this was shown by the enactment of the challenged ordinances, and by various actions taken by the city from the Mermaid's initial permit applications in 1993 through alleged police harassment before it was closed down in 1996. The trial judge rejected the Mermaid's facial challenge because he found the facts undisputed and the ordinances constitutional. He rejected the Mermaid's as-applied claim because it was barred by the statute of limitations and unsupported by the evidence. There is little to the Mermaid's attack on summary judgment. In support of its claim of disputed facts, the Mermaid does no more than repeat its own version of events. That is not Page 21 enough. The trial judge ruled there *24 was no admissible evidence of bad motive, and the Mermaid has not pointed to anything he overlooked. Waters v. Churchill (1994) 511 U.S. 661,681-681,114S.Q. 1878,128L.Ed.2d 686 is distinguishable, for there a civil rights violation was already established. That made motive relevant to determine if the conduct took place pursuant to an official policy or custom. Here the Mermaid failed to prove a violation, so motive is irrelevant. [32] The Mermaid does not challenge the ruling that its as-applied claims were time barred, nor could it. The statute of limitations applicable to section 1983 actions is a state law question (Wilson v. Garcia (1985) 471 U.S. 261, 105 S.Ct. 1938, 85 L.Ed.2d 254), and in California it is one year (Newton v. County of Napa (1990) 217Cal.App.3d 1551,1563-1564,266 Cal.Rptr. 682) from the date plaintiff knew, or reasonably should have known, of the alleged injury. (Gibson v. United States (1986 9th Cir.) 781 F.2d 1334, cert, denied 479 U.S. 1054, 107 S.Ct. 928, 93 L.Ed.2d 979.) All save one of the alleged acts took place more than one year before the cross- complaint was filed, and as to that one the Mermaid does not challenge the trial judge's ruling that it failed to offer any admissible evidence to support the claim. IV The judgment in No. G016950 is affirmed. The judgment in No. GO 19250 is reversed. The judgment in No. G022132 is affirmed. The city, as the prevailing party, is entitled to its costs on appeal in each case. [FN28] FN28. Nothing in our opinion should be taken to preclude the Mermaid from moving the trial judge for an award of attorney's fees and/or costs under applicable law. In a supplemental letter brief, the Mermaid claimed attorney's fees under 42 U.S.C. section 1988 because it compelled the city to amend section 20.72.010. In its petition for rehearing, the Mermaid argued it is entitled to attorney's fees and costs for "challenging a licensing scheme which [the Court of Appeal] found unconstitutional,' and the city should not escape paying the same 'by repealing an ordinance prior to decision in the Court of Appeal.' These are matters that should be addressed to the trial judge, and we express no opinion on the merits of the claims." SILLS, P.J., and CROSBY, J., concur. END OF DOCUMENT 44 989 F.2d 1524 989 F.2d 1524,61 USLW 2583 (Cite as: 989 F.2d 1524) Page 1 United States Court of Appeals, Ninth Circuit. TOPANGA PRESS, INC.; Stuart Parr; Brand X Video Inc.; E.W.A.P., Inc.; Library One, Inc.; Hardrock, Inc.; Beverly Books, Inc.; Whitey, Inc.; New Wave, Inc.; N.F.M. Corporation; Plush Boutique; Carolina Enterprises; Dash, Inc.; Joth, Inc.; Joamar, Inc.; JanRubini; 7180 Sunset Blvd., Inc.; A.L.Q. Corporation, Plaintiffs-Appellees, v. CITY OF LOS ANGELES, Defendant-Appellant. No. 91-55865. Argued and Submitted Oct. 6, 1992. Decided March 22, 1993. As Amended April 27, 1993. Owners of adult businesses brought action challenging city zoning ordinance restricting locations in which such businesses could be located. The United States District Court for the Central District of California, Richard A. Gadbois, Jr., I., preliminarily enjoined enforcement of ordinance, and city appealed. The Court of Appeals, D.W. Nelson, Circuit Judge, held that: (1) hardship to adult businesses caused by ordinance's restrictions on permissible relocation sites outweighed hardship to city; (2) ordinance raised serious question of law as to whether it left adult businesses with reasonable alternative avenues of expression; thus (3) preliminary injunction was warranted. Affirmed. West Headnotes [1] Federal Courts €=?776 170Bk776 Most Cited Cases Court of Appeals reviews standing questions de novo. [2] Federal Courts €=>815 170Bk815 Most Cited Cases District court's grant or denial of preliminary injunction will be reversed only where district court either abused its discretion or based its decision on erroneous legal standard. [3] Federal Courts €=>81S 170Bk815 Most Cited Cases Under abuse of discretion standard, Court of Appeals cannot reverse district court's grant of preliminary injunction unless it has definite and firm conviction that district court committed clear error of judgment in conclusion it reached. [4] Zoning and Planning C=^571 414k571 Most Cited Cases Owners of adult businesses had standing to bring action seeking to preliminarily enjoin enforcement of city zoning ordinance limiting areas where such businesses could be located, where owners claimed that ordinance violated their First Amendment free expression rights. U.S.C.A. Const.Amend. 1. [5] Zoning and Planning €=>573 414k573 Most Cited Cases In context of location-restrictive zoning ordinances, preliminary injunction should issue upon clear showing of either: probable success on the merits and irreparable injuries; or sufficiently serious questions going to merits to make case fan- ground for litigation and balance of hardships tipping decidedly in favor of party requesting relief. [6] Zoning and Planning €=>573 414k573 Most Cited Cases Party seeking to preliminarily enjoin location-restrictive zoning ordinance need not demonstrate that he or she risks irreparable injury, but must at least show that he or she will suffer degree of hardship that outweighs hardship facing opposing party if injunction is not issued; similarly, moving party need not demonstrate that he or she will succeed on the merits, but must at least show that his or her cause presents serious questions of law worthy of litigation. 17] Zoning and Planning €=>573 414k573 Most Cited Cases Question of purely economic injury is not relevant to issue of whether party moving for preliminary injunction faces hardship if location-restrictive zoning ordinance is enforced; rather, lower court may only consider whether enforcement of ordinance is likely to Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page 2 impugn moving party's First Amendment rights. U.S.C.A. Const.Amend. 1. [8] Zoning and Planning €=>573 414k573 Most Cited Cases In determining whether to preliminarily enjoin zoning ordinance restricting locations of adult businesses, court may not consider economic impact within actual business real estate market, but may consider cost when determining whether specific site is reasonably suitable for operation of a business. U.S.C.A. Const. Amend. 1. [9J Zoning and Planning €=>76 414k76 Most Cited Cases There are two questions that must be answered when determining whether adult business has been given reasonable opportunity to relocate under location-restrictive zoning ordinance: first question is whether relocation sites provided to business may be considered part of actual business real estate market; second question is whether, after excluding those sites that may not be properly considered to be part of relevant real estate market, there are adequate number of potential relocation sites for already-existing businesses. U.S.C.A. Const.Amend. 1. [10| Zoning and Planning €=>573 414k573 Most Cited Cases In determining whether particular relocation site under zoning ordinance restricting locations of adult businesses may be considered part of relevant real estate market in action seeking to preliminarily enjoin ordinance's enforcement, property is not potentially available when it is unreasonable to believe that it would ever become available to any commercial enterprise. U.S.C.A. Const.Amend. 1. [11] Zoning and Planning €=>573 414k573 Most Cited Cases In determining whether particular relocation site for adult business may be considered part of relevant real estate market, in action seeking to preliminarily enjoin location-restrictive zoning ordinance, relocation sites that are reasonably accessible to general public may be part of market. U.S.C.A. Const.Amend. 1. [121 Zoning and Planning €=>573 414k573 Most Cited Cases In determining whether particular relocation site for adult business may be considered part of relevant real estate market in action to preliminary enjoin location-restrictive zoning ordinance, areas in manufacturing zones which have proper infrastructures such as sidewalks, roads and lighting may be included in market. U.S.C.A. Const. Amend. 1. [13] Zoning and Planning €==>573 414k573 Most Cited Cases When relocation site for adult business suits some generic commercial enterprise, although not every particular enterprise, it may be said to be part of real estate market, in determining whether to preliminarily enjoin location-restrictive zoning ordinance. U.S.C.A. Const. Amend. 1. [14] Zoning and Planning O=>573 414k573 Most Cited Cases Relocation sites for adult business which are commercially zoned are part of relevant real estate market in determining whether to preliminarily enjoin location-restrictive zoning ordinance. U.S.C.A. Const.Amend. 1. [15] Zoning and Planning C^>76 414k76 Most Cited Cases Assuming relocation site under zoning ordinance restricting locations of adult businesses is part of relevant market, it is not relevant whether relocation site will result in lost profits, higher overhead costs, or even prove to be commercially infeasible for adult business; issue is whether any site is part of actual market for commercial enterprises generally. U.S.C.A. Const. Amend. 1. [16] Zoning and Planning C=>76 414k76 Most Cited Cases In determining whether zoning ordinance restricting location of adult businesses provided such businesses with sufficient relocation sites, land under die ocean, airstrips of international airports, sports stadiums, areas not readily accessible to the public, areas inadequate for any generic commercial business and areas lacking proper infrastructure could be excluded. U.S.C.A. Const. Amend. 1. [17J Zoning and Planning O==>573 414k573 Most Cited Cases In determining whether to preliminarily enjoin city zoning ordinance restricting location of adult businesses, district court did not abuse its discretion in finding that there would be serious hardship to adult businesses if injunction was not granted; although there were only 102 existing businesses in city and ordinance provided for 120 relocation sites, ordinance's Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page3 1,000-foot separation requirements severely limited number of businesses that could relocate to available areas. U.S.C.A. Const.Amend. 1. [18] Zoning and Planning €=>573 414k573 Most Cited Cases Balance of hardships tipped in favor of adult businesses in action to preliminarily enjoin enforcement of zoning ordinance that severely restricted permissible locations of such businesses, where city had not enforced ordinance for long period of time, implying that it did not perceive its enforcement to be matter of great urgency. U.S.C.A. Const.Amend. 1. [19] Zoning and Planning €=^573 414k573 Most Cited Cases Action brought by owners of adult businesses challenging location-restrictive zoning ordinance presented serious questions of law as to whether ordinance violated owners' free expression rights, in determining whether to preliminarily enjoin ordinance's enforcement, where city may not have provided adult businesses with reasonable alternative avenues of expression. U.S.C.A. Const.Amend. 1. [20] Civil Rights €=>1482 78kl482 Most Cited Cases (Formerly 78k296) While award of attorneys' fees under civil rights attorney fee statute is discretionary, court is expected to award such fees to prevailing party unless there is some special circumstance which would justify court's refusal. 42 U.S.C.A. § 1988. [21] Zoning and Planning €=>573 414k573 Most Cited Cases Preliminary injunction enjoining enforcement of city zoning ordinance restricting location of adult businesses was warranted; ordinance severely restricted locations to which such businesses could be located, and raised serious questions of law as to whether it restricted businesses' First Amendment free expression rights. U.S.C.A. ConstAmend. 1. *1526 James K. Hahn, Claudia McGee Henry and L. Wayne Mooney, Deputy City Attys., Los Angeles, CA, for defendant-appellant. G. Randall Garrou, John H. Weston, Weston, Sarno, Garrou & DeWitt, Los Angeles, CA, for plaintiffs-appellees. Appeal from the United States District Court for the Central District of California. Before D.W. NELSON, REINHARDT, Circuit Judges, and CALLISTER, District Judge. [FN*] FN* The Honorable Marion J. Callister, Senior United States District Judge for the District of Idaho, sitting by designation. D.W. NELSON, Circuit Judge: The City of Los Angeles ("City") appeals the district court's grant of a preliminary injunction prohibiting the City from enforcing its Adult Entertainment Business Zoning Ordinance, Los Angeles Municipal Code § 12.70, against the Appellees, owners of adult entertainment businesses ("Adult Businesses"). We affirm the order of the district court. FACTUAL AND PROCEDURAL BACKGROUND In 1977, the City Department of Planning conducted a study which found that concentrations of adult entertainment businesses were creating blight in the neighborhoods where the businesses were located. In response, *1527 the City enacted Municipal Code § 12.70 in 1978. Section 12.70 prohibits adult businesses from being established, substantially enlarged, or subject to transfer of ownership within 500 feet of churches, schools, parks, or within 1,000 feet of other adult businesses. The ordinance was enacted to prevent the "continued erosion of the character of the affected neighborhoods of the City" as described by the 1977 study. Effective May 13, 1983, the City enacted Ordinance No. 157,538 which amended § 12.70B by adding the provision that each adult business was to be considered a separate business even if it operated in conjunction with a similar business at the same establishment. In addition, the ordinance amended § 12.70C to prohibit the maintenance of more than one adult business in the same building or structure. The ordinance, however, allowed multiple businesses established on or after September 1, 1978 to continue to operate until March 10, 1985, with an additional provision respecting the Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page 4 "grandfathering" of businesses established before September 1, 1978. Effective January 13, 1984, the city council passed Ordinance No. 158,579, which forbade the establishment of any new adult business within 500 feet of any residential zone. Finally, Ordinance No. 161, 111, enacted in 1986, prohibited the continued operation after March 6, 1988 of adult businesses located within 500 feet of a residential zone. The 1986 ordinance also provided for the continued operation of such businesses whenever "a site consistent with 12.70C is not reasonably available elsewhere in the City for the establishment or relocation of the subject adult entertainment business." A business existing on March 6, 1986 could continue to operate until March 6,1991 if the business could establish undue financial hardship based on investment or the existence of a written lease extending past March 6,1988. The Adult Businesses [FN1 ] filed a joint complaint and separate individual complaints challenging the constitutionality of zoning ordinance § 17.70. They also brought three separate motions requesting a preliminary injunction against the City's enforcement of the ordinance. [FN2] FN1. Many of the plaintiffs own adult bookstores and at least two own an adult cabaret and two adult theatres. FN2. The first motion joined by all twenty-two plaintiffs argued that the residency restriction: a) denied adult businesses a reasonable opportunity to relocate their businesses and thus infringed upon the plaintiffs' and the public's First Amendment rights; and b) improperly applied retroactively to pre-existing businesses. The second motion, joined by Brand X Video, Inc., Stuart Parr, New, Inc., E.W.A.P. Inc., N.F.M. Corp., Alex Wyszomirski, Beverly Books, Inc., Whitey, Inc. and Hardrock, Inc., alleged that the portion of § 12.70 which treats as separate businesses those stores which the City classifies as "multiple use" businesses: a) violates the First Amendment by indirectly outlawing certain forms of expression saeh-as™ adult arcades that cannot economically operate except in conjunction with a related retail business; and b) violates the Equal Protection Clause. The third motion, joined by all twenty-two plaintiffs, argued that the ordinance is unconstitutionally vague in its definition of what constitutes an "adult" retail business. Without distinguishing among the three motions, the district court ruled from the bench on June 17, 1991 that plaintiffs had met the criteria for a preliminary injunction, and enjoined the City from enforcing the ordinance. STANDARD OF REVIEW [1][2][3] The City raises the preliminary issue of the Adult Businesses' standing to assert the First Amendment rights of the general public. We review standing questions de novo. Conti v. City of Fremont, 919F.2d 1385,1387(9thCir.l990). A district court's grant or denial of a preliminary injunction will be reversed only where the district court either abused its discretion or based its decision on an erroneous legal standard. Religions Technology Center, Church of Scientology Int'l, Inc. v. Scott, 869 F.2d 1306, 1309 (9th Cir. 1989). Under an abuse of discretion standard, this court cannot reverse the district court's grant of a preliminary injunction unless it has a "definite and firm conviction" that the district court committed a "clear error of judgment in the conclusion it reached." *1528 Abatti v. Commissioner, 859 F.2d 115, 117 (9th Cir. 1988). ANALYSIS I. Adult Businesses' Standing [4] The City contends the Adult Businesses are without standing in this court since they cannot employ the First Amendment rights of the public as a ground for the issuance of the preliminary injunction. While the Adult Businesses argue hi their first motion for a preliminary injunction that enforcement of the ordinance will deny the public access to the type of entertainment they sell, the crux of their argument is Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page 5 that the ordinance infringes upon their own First Amendment rights. They argue that § 12.70 suppresses their protected speech by failing to provide them with reasonable alternative relocation sites for their businesses. Because the Adult Businesses have standing to protect their personal First Amendment rights, we need not decide whether they possess standing to assert the First Amendment rights of the public to have access to the types of expression sold by these businesses. II. The Preliminary Injunction In support of their motions for a preliminary injunction, the Adult Businesses argue that the City has provided them with an insufficient number of possible relocation sites and that therefore enforcement of the ordinance would cause them hardship and irreparable injury. The Adult Businesses also argue that the ordinance raises serious questions of law. The City contends that all the evidence presented by the Adult Businesses regarding their threat of hardship went to the degree of economic harm they will face if the ordinance is enforced, and that the district court abused its discretion in considering this evidence since economic harm is not relevant to the issue of whether the Adult Businesses1 First Amendment rights are threatened. The City also contends that the district court erred in finding that this case presented serious questions of law since the ordinance in question is constitutional on its face. [FN3] FN3. The district court's preliminary injunction expressly found that the adult businesses had raised "substantial and non-frivolous legal and factual issues" and that "the balance of hardships" tips decidedly in favor of plaintiffs. [5] In the context of location-restrictive ordinances, this circuit has determined that a preliminary injunction should issue upon a clear showing of either: (1) probable success on the merits and irreparable injury; or (2) sufficiently serious questions going to the merits to make the case a fair ground for litigation and a balance of hardships tipping decidedly in favor of the party requesting relief. AdultworldBookstore v. City of Fresno, 758 F.2d 1348, 1351 (9th Cir.1985); Ebel v. City of Corona, 698 F.2d 390, 392 (9th Or. 1983). [6] These are not two separate tests, but "merely extremes of a single continuum." Benda v. Grand Lodge of Int'l Assoc. of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978), cert, dismissed, 441 U.S. 937, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979). Thus, a moving party need not demonstrate that he risks irreparable injury, but he must at least show that he will suffer a degree of hardship that outweighs the hardship facing the opposing party if the injunction is not issued. Similarly, a moving party need not demonstrate that he will succeed on the merits, but must at least show that his cause presents serious questions of law worthy of litigation. A. Economic Impact Under Renton [7] The question of purely economic injury is not relevant to the issue of whether a moving party faces hardship if a restrictive zoning ordinance is enforced. Lydo Enterprises, Inc. v. City of Las Vegas, 745 F.2d 1211,1213 (9th Cir. 1984). Rather, a lower court may only consider whether enforcement of the ordinance is likely to impugn the moving party's First Amendment rights. But," [a]ny loss of First Amendment freedoms, even briefly, can constitute irreparable injury." Id. 745 F.2dat 1214; *1529Elrodv. Burns, 427 U.S. 347,373, 96 S.Ct. 2673, 2689,49 L.Ed.2d 547 (1976). 1. The Renton Test The test for determining whether the Adult Businesses' First Amendment rights are threatened is whether a local government has "effectively denfied]... [the Adult Businesses] a reasonable opportunity to open and operate" their enterprise within the city in question. City of Renton, et al. v. Playtime Theatres, 475 U.S. 41, 54,106 S.Ct. 925,932,89 L.Ed.2d 29 (1985). Again, the possible economic impact upon a business is not a factor to be considered by the courts when determining whether a city has provided a business with a reasonable alternate location. Adult businesses: must fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees.... [Although we have cautioned against Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page 6 the enactment of zoning regulations that have the 'effect of suppressing or greatly restricting access to lawful speech,'... we have never suggested that the First Amendment compels the Government to ensure that Adult theaters ... will be able to obtain sites at bargain prices.... Id. at 54, 106 S.Ct. at 932 (citations omitted). This prohibition against consideration of economic impact specifically forecloses inquiry into whether a relocation site is "commercially viable" or only "potentially" as opposed to "actually" available. Id. at 53, 106 S.Ct. at 932. The Supreme Court, however, has not stated what sort of factors may be considered when deciding whether the relocation sites provided by a city are reasonable. Some courts have attempted to draw a distinction between economically unsuitable land and physically or practically unsuitable land. See Woodall v. City of El Paso, 959 F.2d 1305, 1306 (5th Cir.) (per curiam) modifying 950 F.2d 255 (5th Cir.), cert, denied, 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 227 (1992); Alexander v. City of Minneapolis, 928 F.2d 278, 283 (8th Cir.1991). In Woodall, the Fifth Circuit held that "land with physical characteristics that render it unavailable for any kind of development... may not be considered available for constitutional purposes under Renton." 959 F.2d at 1306. The problem, however, is that the distinction between economically unsuitable and physically or practically unsuitable land is difficult to maintain. Nearly all forms of physical and legal unsuitability may be couched in terms of economic unsuitability. Conversely, problems of economic suitability may be couched in terms of physical unsuitability. For example, in the instant case, some of the definitionally "available" land is currently used as runways for the Los Angeles airport. One could argue that this land is physically unsuitable for a business. On the other hand, one could argue that it is merely economically unsuitable, since there is nothing to prevent an adult business from physically relocating to this site; rather it is prevented by a consideration of the cost of tearing down part of an airstrip and then building a storefront. In short, it could be argued that the only impediment is the cost of development. This easily blurred line between economic and physical suitability creates doctrinal problems. If the unsuitability of a relocation site always can be couched in terms of economic suitability, under Renton no relocation site could ever be considered unreasonable. On the other hand, if a court attempts artificially to maintain the line between physical and economic suitability, it may often be led to consider the economic factor sub rosa which is forbidden under Renton. 2. The Distinction Between Consideration of Economics Within and Without the Market A solution to this gordian knot appears once we consider the context in which the Renton court forbade consideration of economic factors. Astutely, the Woodall court noted that "[t]he Court [in Renton ] obviously contemplated that there was a 'market1 in which businesses could purchase or lease real property on which business could be conducted." 959 F.2d at 1305. We agree with the observation of *1530 the Woodall court. Renton assumed that the relocation sites were already part of the relevant real estate market. See e.g., Walnut Properties Inc. v. City ofWhittier, 861 F.2d 1102, 1109 (9th Cir.1988), cert, denied, 490 U.S. 1006, 109 S.Ct. 1641, 104 L.Ed.2d 157 (1989) (forbidding consideration of economic factors that stem from "market force"). [8] Accordingly, we do not think that Renton forbids a court to consider economics when evaluating whether a particular relocation site is in fact part of the real estate market. For purposes of Renton, the distinction is between consideration of economic impact within an actual business real estate market and consideration of cost to determine whether a specific relocation site is part of the relevant market. A court may not consider the former, but it may consider the latter when determining whether a specific site is reasonably suitable for the operation of a business. 3. The Hardship Inquiry [9] There are two questions then that must be answered when determining whether an adult business has been given a reasonable opportunity to relocate. The first Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page? question is whether relocation sites provided to a business may be considered part of an actual business real estate market. The second question is whether, after excluding those sites that may not properly be considered to be part of the relevant real estate market, there are an adequate number of potential relocation sites for already existing businesses. The first question is the most tricky. For the reasons stated above, we do not find the distinction between economic suitability and physical suitability helpful in answering this question. Rather, we are left to the simple, yet slippery, test of reasonableness when attempting to discern whether land is or is not part of a market in which any business may compete. Inquiry into the question of whether it is reasonable to consider a particular location site as part of the commercial real estate market may focus either on the physical characteristics of an area or on the cost of altering or developing the area to change its physical characteristics. The case law offers clues as to what sort of land and/or structures reasonably may be said to comprise the relevant real estate market. Renton found that the city had met its obligation to provide alternate locations by providing 520 acres of land consisting of "ample accessible real estate," including "acreage in all stages of development from raw land to developed, industrial, warehouse, office and shopping space that is criss-crossed by freeways, highways, and roads." 475 U.S. at 53, 106 S.Ct. at 932. Renton did not mention, however, that part of the 520 acres offered to the adult businesses consisted of an oil tank farm, a horse racing track and a sewage treatment facility. Subsequent to Renton, the Eighth Circuit in Alexander refused to consider economic impact but did consider whether there were potential commercial sites available. The Alexander court concluded that "numerous sites were potentially available... [since] under the ordinance theaters of this sort have access to at least 6.6% of the total acreage of commercial land; within the available areas are a myriad of block faces, each a potential relocation site." 928 F.2d at 283. In Dumas v. City of Dallas, 648F.Supp. 1061,1071 (N.D.Tex. 1986), affd, 837 F.2d 1298 (5th Cir.1988), affd in part vacated in part, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), the district court restated the rule against consideration of economic impact. The court then cited with approval Basiardanes v. City ofGalveston, 682 F.2d 1203, 1214 (5th Cir.1982), which held that areas located among warehouses, shipyards, undeveloped areas, and swamps did not provide adult businesses with a reasonable opportunity to relocate. 648 F.Supp. at 1071. In contrast, Dumas noted that the plan before it permitted relocation in areas with no "impediments" except for the possibility that as a "matter of business judgment" these relocation sites were undesirable." Id.; see also Function Junction, Inc. v. City ofDaytona Beach, 705 F.Supp. 544, 552 (M.D.Fla.1987). [ 10] The courts' findings in these cases lead us to hold that a particular relocation *1531 site may be considered part of the relevant real estate market when the following conditions are met. First, although Renton stressed that the First Amendment only requires a relocation site to be potentially available rather than actually available, the requirement of potentiality connotes genuine possibility. The Fifth Circuit has suggested that: [When a] business is operated pursuant to a lease that commits the property to the present tenant for its business purposes for a term of years, the property may be effectively unavailable to adult businesses or any other business enterprise. 950 F.2d at 262. [FN4]; cf. Alexander, 928 F.2d 278 ("the record clearly shows that other owners of adult businesses were able to find suitable relocation sites"). We need not determine whether the Fifth Circuit is correct. Here we need determine only that property is not "potentially" available when it is unreasonable to believe that it would ever become available to any commercial enterprise. FN4. Woodall modified its opinion on April 21,1992. The Fifth Circuit, however, did not disturb that portion of the original opinion quoted above. [11][12][13] Second and focusing our attention on relocation sites which are within manufacturing or industrial zones, relocation sites that are reasonably Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page8 accessible to the general public may also be part of the market. Third, areas in manufacturing zones which have a proper infra-structure such as sidewalks, roads and lighting may be included in the market. Fourth, when a relocation site suits some generic commercial enterprise, although not every particular enterprise, it too may be said to be part of the real estate market. While it is constitutionally irrelevant whether relocation sites located in industrial or manufacturing zones suit the particular needs of an adult business, potential sites must be reasonable relocation sites for some commercial enterprise before they can be considered part of the relevant market. Consequently, whether one defines a warehouse, a swamp, or a sewage treatment plant as physically or economically unsuitable, it is not reasonable to define these sites as part of the real estate market that any business would choose. [FN5] FN5. We need not answer the question of whether, under Renton, a business has been afforded a reasonable opportunity to relocate if all relocation sites are within an industrial zone and no commercial zones are offered; in this case, the City has offered both commercial and non-commercial relocation sites. [14] Fifth, and most obvious, those relocation sites which are commercially zoned are part of the market. [15] We emphasize that assuming a relocation site is part of the relevant market, it is not relevant whether a relocation site will result in lost profits, higher overhead costs, or even prove to be commercially infeasible for an adult business. The issue is whether any site is part of an actual market for commercial enterprises generally. B. Adult Businesses'Hardship We rum now to the question of whether the district court in this case abused its discretion when it found that the Adult Businesses had met the hardship criterion for a preliminary injunction. The City argues that the district court improperly considered the commercial viability of the potential relocation sites for the Adult Businesses. We do not agree. The record in this case indicates that a real question exists about whether the ordinance provides the Adult Businesses with constitutionally sufficient alternative relocation sites for their businesses. 1. Excluding Offered Sites under Renton From Relevant Market [16] The first issue is whether the relocation sites offered by the City are part of the business real estate market. The Adult Businesses' geographical expert, Michael Taugher, conducted an extensive survey of the City to determine which geographical areas within the City would be permissible as potential sites for establishing or relocating these adult businesses. Mr. Taugher found that there are 11,613.1 acres of what the parties call "definitionally available" relocation sites where the City *1532 would allow an adult business to exist. Out of these 11,613.1 acres, however, Mr. Taugher concluded that much of the land was not truly available. Mr. Taugher based his findings on what he termed "physical" or "practical" considerations. He found the following: 1) thousands of potentially available acres are submerged beneath the Pacific Ocean or the outer harbor of the Port of Los Angeles; 2) some of the land is presently being used as landing strips for the Los Angeles Airport; 3) two hundred acres are currently being used as landfill; 4) 600 acres are currently used as the Van Nuys airport; 5) 4,357.51 acres are currently used by the Port of Los Angeles and/or oil refineries; and 6) about 230 acres are used for petroleum gas storage. In addition, he found that the ITT Gilfillian Defense plant, the General Motor Assembly plant, a portion of Children's Hospital as well as other large businesses or institutions are located on "definitionally available" sites. He concluded that out of the 11613.1 acres of definitionally available land, only 7440.9 acres are "realistically available" for an adult business. Only 0.18% of this realistically available land is in a commercial zone. Bruce Bailey, a real estate expert employed by the Appellees, used criteria similar to Mr. Taugher's. Mr. Bailey excluded those relocation sites that he Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524,61 USLW 2583 (Cite as: 989 F.2d 1524) Page 9 considered physically inadequate such as parcels of land now occupied by junk yards, steel yards and car storage lots. He also excluded parcels of land that were occupied by "single purpose buildings" such as shipping yards, the Los Angeles airport, and a large oil refinery complex (id.). Mr. Bailey concluded that there were perhaps 120 "potentially viable" relocation sites that met the requirements of the zoning ordinance. The City contends that these experts arrived at their conclusions by considering: 1) the commercial viability of the relocation sites; and 2) whether these sites were actually as opposed to potentially available. The City is correct that at times Mr. Bailey improperly considered factors such as whether relocation sites were operatively expensive or whether adult businesses would not be welcomed by landlords. Notwithstanding this, Mr. Baileys final estimation of available relocation sites resulted from his reliance on factors other than commercial viability. Applying the factors we have enumerated above, we believe that the areas eliminated from consideration by Mr. Taugher and Mr. Bailey are properly excluded under Renton since these areas do not fall within the relevant market. First, much of the land the Adult Businesses' experts considered unsuitable land is not potentially available. Land under the ocean, airstrips of international airports, and sports stadiums are not relocation sites likely to ever become available to the Adult Businesses, or indeed to any commercial business. Second, and turning to those relocation sites which are located in manufacturing zones, many of the areas excluded by Appellees' experts are not readily accessible to the public. Third, many of the sites the Adult Businesses' experts found to be unsuitable are inadequate for any generic commercial business. While Renton did not consider undeveloped land to be unsuitable for relocation, the Adult Businesses' experts testified that the City here has provided the Adult Businesses relocation sites that are developed in a manner totally incompatible with any average commercial business. Fourth, many of the excluded relocation sites appear to lack a proper infra-structure. In short, aside from the question of commercial viability, it is unreasonable to consider the acreage eliminated from consideration by the Adult Businesses' experts as relocation sites that fall within the business real estate market. 2. The Sufficiency of the Relocation Sites Within the Market [ 17] Once the areas that are not part of the market are excluded, the question becomes whether the remaining acreage provides the Adult Businesses with a reasonable opportunity to relocate. The parties agree that there are presently 102 different adult entertainment businesses in the city of Los Angeles. Of these 102 existing businesses, the City located five which it believed to be in compliance with all of the various restrictions of § 12.70. The Adult Businesses' expert Mr. Taugher concluded that all but one of the 102 adult entertainment *1533 businesses could not meet the requirements of the ordinance. At first glance, the 120 sites deemed practically available by Mr. Bailey would appear to be constitutionally sufficient, given that there are approximately only 102 adult businesses now in operation in the City of Los Angeles. Yet a more careful analysis of the evidence suggests otherwise. First, the number of businesses that need to relocate may be well higher than 102 since under the ordinance, single stores that sell two sorts of adult entertainment are to be considered multiple businesses and thus cannot operate at a single location. Second, the estimation of the quantity of sites available within the market may well be inaccurate. Like the ordinance considered in Walnut Properties, Inc., 861 F.2d 1102 (9th Cir.1988), this ordinance imposes a 1,000 foot separation requirement between any two adult businesses. This means, however, that as soon as any particular site is occupied by a new adult business, any other adult entertainment business is automatically precluded from relocating upon any other definitionally available plot within a contiguous 72 acre circle around the first business. Mr. Taugher did not work out how much acreage was available after the 1,000 foot restriction was factored in to his evaluation. However, since many of the definitionally available areas were adjacent to each Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) Page 10 other, he concluded that acreage available to the tenth or twentieth business to relocate would be "dramatically less" than the percentage of area definitionally available to the first adult business. We have not estimated the number of sites available in either the commercial or the manufacturing zones of the city. However, it is clear from the map in the record that once the 500 foot residential restriction is factored in, the definitionally available locations are clustered together in several parts of the City. There is no doubt that the 1000 foot restriction between any two adult businesses would severely reduce the actual number of potentially available relocation sites. In addition, Mr. Taugher testified that he was not sure of the accuracy of his estimate of definitionally available sites. He did not determine whether portions of existing structures that were within a "definitionally permissible" area fell within a prohibited zone. A corollary point is that there is a possibility that some of the sites included in the relevant market may be included improperly. If so, this also would reduce the number of reasonable sites potentially available. While Mr. Taugher roughly estimated the amount of land that could be considered "physically" or "practically" available, he did not determine whether there was a further decrease in available land due to factors such as inaccessability, lack of proper infra-structure such as lighting, road and sidewalk access, or the presence of other disabling characteristics of the site. In sum, a risk exists that a comparison between the estimation of the total number of adult businesses and the total available acreage is misleading. Therefore, the district court did not abuse its discretion in finding that there would be serious hardship to the Adult Businesses if an injunction against enforcement of the ordinance was not granted. C. City's Hardship [ 18] Given that the Adult Businesses must not only show hardship, but that hardship tips in then- favor, we turn now to the question of the potential injury to the City if the ordinance is not enforced. In Lydo Enterprises, this court presumed that an injunction which prevents a city from enforcing its ordinances a fortiori causes the City harm since "the city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect." 745 F.2d at 1213 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976) (plurality opinion)). In this instance, however, the district court found that any harm the City might suffer was slight. The court noted that there had already been a "forbearance of enforcement of this regulation for a long time," implying that the City itself did not perceive enforcement of the regulation to be a matter of great urgency. On this record, we cannot say that the district court abused its discretion hi finding *1S34 that the balance of hardship tipped sharply in the Adult Businesses' favor. D. Serious Questions of Law [19] Next, we turn to the question of whether the district court erred in concluding that this case presents serious questions of law. The City argues that the district court erred because the ordinance is constitutional on its face and plaintiffs have failed to present evidence to raise any serious doubt to the contrary. We disagree. We have already concluded that the record indicates that the City may not have provided the Adult Businesses with reasonable alternative avenues of expression. This is a constitutional question which by definition is a "fair ground for litigation." AdnlfworldBookstore, 758F.2d at 1351. Moreover, this circuit considers zoning ordinance cases such as this to "present complex constitutional problems." Id. In this particular instance, the presumption of complexity is justified given that the answer to the question of what constitutes a "reasonable opportunity to open and operate" an adult business is not free from ambiguity. III. Attorneys' Fees [20] The Adult Businesses request an award of attorneys fees pursuant to 42 U.S.C. § 1988 should they prevail on appeal. Section 1988 provides that attorney fees may be awarded to a prevailing party in an action to enforce a provision of 42 U.S.C. § 1983. Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 989 F.2d 1524 Page 11 989 F.2d 1524, 61 USLW 2583 (Cite as: 989 F.2d 1524) While the award of fees is discretionary, a court is expected to award such fees to the prevailing party unless there is some special circumstance which would justify the court's refusal. No such special circumstances exist in this case. Accordingly, we award the Adult Businesses attorneys' fees. CONCLUSION [21] We conclude that the district court did not abuse its discretion in finding that the balance of hardships tips sharply in favor of the Adult Businesses. We agree with the district court that the ordinance presents serious questions of law. Accordingly, the decision of the district court to issue a preliminary injunction is affirmed. The Adult Businesses are to be awarded attorneys' fees. AFFIRMED. 989 F.2d 1524, 61 USLW 2583 END OF DOCUMENT Copr. © 2004 West. No Claim to Orig. U.S. Govt. Works. 45 Pagel 129 F.3d 1069 97 Cal. Daily Op. Serv. 8803,97 Daily Journal D.A.R. 14,269 (Cite as: 129 F.3d 1069) United States Court of Appeals, Ninth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Mark Stuart HOCKINGS, Defendant-Appellant. No. 97-50018. Argued and Submitted Nov. 3, 1997. Decided Nov. 21, 1997. Defendant was convicted in the United States District Court for the Central District of California, Terry J. Hatter, J., of possessing computer files containing visual depictions of child pornography, and of transporting visual depictions of child pornography in interstate commerce. Defendant appealed. The Court of Appeals, Molloy, District Judge, sitting by designation, held that: (1) computer graphic interchange format (GIF) files from which pornographic images could be retrieved were "visual depictions" within meaning of statute of conviction, and (2) statute was not void for vagueness. Affirmed. West Headnotes [1] Criminal Law €=^1139 110k! 139 Most Cited Cases Construction or interpretation of statute is reviewed de novo. [2] Criminal Law €=1139 HOkl 139 Most Cited Cases Whether statute is void for vagueness is reviewed de novo. [3] Obscenity €=>5.2 281k5.2 Most Cited Cases Computer graphic interchange format (GIF) files from which pornographic images could be retrieved were "visual depictions" within meaning of statute that prohibits knowing transportation in interstate commerce, "by any means including by computer," of "visual depictions" involving minors engaged in sexually explicit conduct, even though, when offense was committed, that statute did not refer to information stored on disc; both subparts of statute under which defendant was charged prohibited transportation by computer of such visual depictions, and because Congress intended to outlaw transportation of pornographic visual depictions of children by computer, it also intended to include GIF files within definition of visual depiction. 18U.S.C.A.§§2252(a)(l),(a)(4)(B), 2256(5). [4] Statutes €=>184 361kl84 Most Cited Cases [4] Statutes €=>188 361kl88 Most Cited Cases [4] Statutes €=>206 361k206 Most Cited Cases [4] Statutes €=217.4 361k217.4 Most Cited Cases When interpreting statute, court looks first to plain language of statute, construing provisions of entire law, including its object and policy, to ascertain intent of Congress; if statute is unclear, court looks next to legislative history. [5] Obscenity €=5.2 281k5.2 Most Cited Cases Fact that statute that prohibits knowing transportation in interstate commerce, "by any means including by computer," of "visual depictions" involving minors engaged in sexually explicit conduct was amended in 1996 to specifically include computer data such as graphic interchange format (GIF) files within definition of "visual depiction" did not preclude finding that computer GIF files possessed before that time were "visual depictions" within meaning of that statute. 18 U.S.C.A. § 2256. [6] Criminal Law €=13.1(1) 110kl3.1(l) Most Cited Cases Under vagueness doctrine, act cannot be so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application. [7] Statutes €=241(1) 361k241(l) Most Cited Cases Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 2 Rule of lenity must be applied to restrict criminal statutes to conduct clearly covered by those statutes. [8] Criminal Law €=>13.1(1) 110kl3.1(l) Most Cited Cases Under vagueness doctrine, court may interpret statute to provide requisite level of clarity, but any such interpretation must not be so novel as to include conduct that neither statute nor any prior judicial decision has fairly disclosed to be within its scope. [9] Obscenity €=>2.5 281k2.5 Most Cited Cases Statute that prohibits knowing transportation in interstate commerce, "by any means including by computer," of "visual depictions" involving minors engaged in sexually explicit conduct gave defendant fair warning that transportation of visual depictions by means of graphic interchange format (GIF) files was illegal, and thus, statute was not void for vagueness; GIF files were merely means of storage and transportation of visual depictions, and even if judicial gloss were required to bring GIF files within compass of statute, such interpretation was not novel in view of existing case law. 18 U.S.C.A. §§ 2252(a)(l), (a)(4)(B), 2256(5). *1070 Richard D. Burda, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant. David C. Scheper, and Benjamin Jones, Jr., Assistant United States Attorneys, Los Angeles, California, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California; Terry J. Hatter, District Judge, Presiding. D.C. No. CR-95- 00556-TJH. Before: CANBY and THOMPSON, Circuit Judges, and MOLLOY, [FN*] District Judge. FN* Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. MOLLOY, District Judge: I. Overview Mark Stuart Hockings ("Hockings") was charged with one count of possessing eight computer files containing visual depictions of child pornography, in violation of 18 U.S.C. § 2252(aX4)(B), and one count of transporting sixteen visual depictions of child pornography in interstate commerce, in violation of 18 U.S.C. § 2252(a)(l). After a bench trial he was found guilty on both counts. On appeal, he claims the computer GIF files from which pornographic images could be retrieved are not "visual depictions" as defined in the charging statute. Additionally, he argues the charging statute did not provide him with fair warning of the proscribed conduct. We disagree. [ 1 ] [2] The construction or interpretation of a statute is reviewed de novo. United States v. DeLaCorte, 113 F.3d 154,155 (9th Cir.1997). Whether a statute is void for vagueness is also reviewed de novo. United States v. Woodley, 9 F.3d 774, 778 (9th Cir.1993). II. Discussion A. [3] Subsections 2252(a)(l) and (4)(B) criminalize the knowing transportation in interstate *1071 commerce, "by any means including by computer or mails," of "visual depictions" involving minors engaged in sexually explicit conduct, 18 U.S.C. § 2252(a)(l) (emphasis added). It is also illegal to be in the knowing possession of three or more "matter[s] which contain any [such] visual depiction," 18 U.S.C. § 2252(a)(4)(B). When the offense happened, the applicable statute stated that" Visual depiction' includes undeveloped film and videotape." 18 U.S.C. § 2256(5) (Law.Co- op.1991). It did not refer to information stored on disc. In 1996, the statutory definition was expanded to include "data stored on computer disk or by electronic means which is capable of conversion into a visual image." 18 U.S.C.S. § 2256(5) (Law. Co-op. 1991 & Supp.1997). [4] When interpreting a statute, we "look first to the plain language of the statute, construing the provisions of the entire law, including its object and policy, to ascertain the intent of Congress." Northwest Forest Resource Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996). If the statute is unclear, we look next to the legislative history. Mat 830-31. Hockings argues that his conduct is not within the purview of the statute because the definition of "visual depiction" contained in the former version of section 2256(5), includes undeveloped film and videotape but not computer data. However, both subparts of section 2252 under which Hockings was charged prohibit the transportation by computer of visual depictions of Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 3 minors engaging in sexually explicit conduct. It leads to an absurdity to find that Congress intended to outlaw the transportation of pornographic visual depictions of children by computer, yet conclude that Congress did not intend to include GIF files within the definition of visual depiction. The former definition of "visual depiction" is not limited to undeveloped film and videotape-it "includes" those items but is not drafted as an exhaustive list of all items that constitute a "visual depiction." See 18 U.S.C.S. § 2256(5) (1991). This view is supported by United States v. Smith. 795 F.2d 841 (9th Cir.1986). Smith construed the pre-1986 version of the child pornography statute that contained no definition of "visual depiction." Smith took photographs of three teenage girls in various stages of nudity and sent the film for developing. After developing the film, the photo company contacted U.S. postal inspectors. Smith was charged with violations of the federal child pornography statutes and convicted on all counts. Id. at 844-45. On appeal, this court rejected Smith's argument that "unprocessed, undeveloped film does not constitute a Visual depiction' within the meaning of the statute." Id. at 846. Accepting that "color film must undergo an elaborate developing process before any image can be perceived by the human eye," id., the court concluded: [T]he exclusion of unprocessed film from the statute's coverage would impede the child pornography laws by protecting a necessary intermediate step in the sexual exploitation of children. The interpretation urged by Smith would allow unrestricted interstate commerce in child pornography so long as the pornography was still in the form of undeveloped film. Such a loophole is inconsistent with congressional intent; the undeveloped state of the film does not eliminate the harm to the child victims in the film's production or the incentive to produce created by the film's trafficking. We therefore hold that the undeveloped film constitutes a "visual depiction".... Id. at 846-47. The same rationale applies to GIF files in relation to the pre-1996 version of the statute under which Hockings was charged. GIF files were a means of storage and transportation of visual depictions of child pornography in this case. Although a software program was required to de-compress the GIF file, the contents of the GIF file could be viewed on a computer screen or printed in hard copy if so desired. [5] The statute was amended in 1996 to specifically include computer data such as GIF files. ("[VJisual depiction includes... data stored on computer disk or by electronic means which is capable of conversion into a visual image"). 18 U.S.C.A. § 2256 (West *1072 Supp. 1997). Hockings suggests the amendment lends support to his argument that the pre-1996 statute did not encompass GIF files. However, "Congress may amend a statute simply to clarify existing law, to correct a misinterpretation, or to overrule wrongly decided cases. Thus, an amendment to a statute does not necessarily indicate that the unamended statute means the opposite." Hawkins v. United States, 30 F.3d 1077, 1082 (9th Cir. 1994). We conclude that computer GIF files are visual depictions within the meaning of the charging statute. The visual image transported in binary form starts and ends pornographically and that is what Congress seeks to prohibit. B. [6][7][8] We also reject Hockings' attack on the statute as void for vagueness. The Supreme Court outlined the contours of the vagueness doctrine in United States v. Lanier, 520 U.S. 259,117 S.Ct. 1219,137 L.Ed.2d432 (1997). First, an act cannot be so vague that "men of common intelligence must necessarily guess at its meaning and differ as to its application." Id. at —, 117 S.Ct. at 1225,137 L.Ed.2d at 442. Second, the rule of lenity must be applied to restrict criminal statutes to conduct clearly covered by those statutes. Id. Third, a court may interpret the statute to provide the "requisite level" of clarity, but any such interpretation must not be so "novel" as to include conduct that "neither the statute or any prior judicial decision has fairly disclosed to be within its scope." Id. at , 117 S.Ct. at 1224-26, 137 L.Ed.2d at 442-43. [9] Hockings argues that the charging statute is constitutionally vague because it criminalizes "the transportation and possession of items [GIF files] that clearly are not visual depictions, on the grounds that they are visual depictions, goes beyond what a person of common intelligence would infer from reading the statute." We disagree. The statute satisfies the Lanier standard. As noted above, GIF files are merely a means of storage and transportation of visual depictions. The statute proscribes the transportation of visual depictions of minors engaged in sexually explicit conduct by any means, including by computer. 18 U.S.C. § 2252(a)(l),(4)(B). While holding otherwise, even if judicial gloss is required to bring GIF files within the compass of the statute, such an interpretation is not novel in view of the case law discussed above. See Smith supra; see also United States v. Thomas, 74F.3d Copr. © West 2003 No Claim to Orig. U.S. Govt. Works Page 4 701, 707 (6th Cir.l996)(holding that GIF files fall within the obscenity statutes although not specifically proscribed herein because "the manner in which the images movef ] does not affect their ability to be viewed on a computer screen in [a distant location] or their ability to be printed out in hard copy in that distant location"). Hence, Hockings had fair warning that the transportation of visual depictions by means of computer GIF files was in violation of the statute. AFFIRMED. 129 F.3d 1069,97 Cal. Daily Op. Serv. 8803,97 Daily Journal D.A.R. 14,269 END OF DOCUMENT Copr. © West 2003 No Claim to Orig. U.S. Govt. Works 46 Pagel 74 F.3d 701 64 USLW 2483,43 Fed. R. Evid. Serv. 969,24 Media L. Rep. 1321,1996 Fed.App. 0032P, 96 Cal. Daily Op. Serv. 609 (Cite as: 74 F.3d 701) United States Court of Appeals, Sixth Circuit. UNITED STATES of America, Plaintiff-Appellee, v. Robert Alan THOMAS (94-6648) and Carleen Thomas (94-6649), Defendants- Appellants. Nos. 94-6648 and 94-6649. Argued Oct. 11, 1995. Decided Jan. 29, 1996. Rehearing and Suggestion for Rehearing En Bane Denied March 12, 1996. Defendants were convicted in the United States District Court, Western District of Tennessee, Julia Smith Gibbons, Chief Judge, of federal obscenity charges concerning then- operation of computer bulletin board business. Defendants appealed. The Court of Appeals, Edmunds, District Judge, sitting by designation, held that: (1) allegedly intangible form by which computer- generated images moved from defendants' bulletin board in one state to personal computer in another state did not preclude prosecution for interstate transportation of obscene materials; (2) venue was appropriate in judicial district in which allegedly obscene materials were received; (3) defendants' right of privacy did not preclude prosecution; (4) government was not required to present expert testimony regarding prurient appeal of images and videotapes available from defendants' bulletin board; (5) district court's refusal of request for separate counsel did not deny defendant effective assistance of counsel; and (6) defendants were not entitled to two-level reduction for acceptance of responsibility. Affirmed. West Headnotes [1] Criminal 1 10k 1 139 Most Cited Cases Whether defendants' conduct constituted violation of federal obscenity statute presented question of statutory interpretation subj ect to review under de novo standard, rather than issue of constitutional fact requiring Court of Appeals to conduct independent review of entire record. 18U.S.C.A. § 1465. [2] Obscenity 281k7 Most Cited Cases [2] Commerce €=>82.55 83k82.55 Most Cited Cases Allegedly intangible form by which computer-generated images moved from defendants' computer bulletin board in one state to personal computer in another state did not preclude prosecution under statute prohibiting interstate transportation of obscene materials. 18 U.S.C.A. § 1465. [3] Obscenity 28 Ik9 Most Cited Cases [3] Obscenity €=>17 281kl7 Most Cited Cases Evidence of defendants' operation of computer bulletin board business that advertised and promised its members availability and transportation of sexually-explicit computer graphic files supported conviction for interstate transportation of obscene materials, despite defendants' spurious argument that they had no knowledge, intent or expectation that members would download and print images contained in files. 18U.S.C.A. § 1465. [4] Obscenity €=>7 281k7 Most Cited Cases Operation of commercial computer bulletin board using telephone facilities for purpose of transmitting obscene computer-generated images to approved members was proscribed by statute prohibiting interstate transportation of obscene materials, rather than by statute addressing commercial "dial-a-pom" operations communicating sexually-explicit telephone messages. 18 U.S.C.A. § 1465; Communications Act of 1934, § 223(b), as amended, 47 U.S.C.A. § 223(b). [5] Obscenity €=>7 28 Ik7 Most Cited Cases Failure of statute prohibiting interstate transportation of obscene materials to specifically ban transport by Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 2 computer did not preclude prosecution for operation of commercial computer bulletin board business to transmit obscene computer-generated images to members as within plain meaning of statute and consistent with Congress' intent to legislate comprehensively against interstate distribution of obscene materials. 18U.S.C.A. § 1465. [6] Obscenity 281k7 Most Cited Cases Statute prohibiting knowing use of facility or means of interstate commerce for purpose of distributing obscene materials did not require government to prove that defendants had specific knowledge of destination of each transmittal of sexually-explicit computer graphic file at time it occurred. 18 U.S.C.A. § 1465. [7] Criminal Law €=3108(1) 1 10kl08(l) Most Cited Cases [7] Criminal Law €==>564(2) 1 10k564(2) Most Cited Cases Venue lies in any district in which offense was committed, and government is required to establish venue by preponderance of evidence. [8] Criminal Law €==>H3 1 10k! 13 Most Cited Cases Propriety of venue is determined by taking into account number of factors including: site of defendant's acts, elements and nature of crime, locus of effect of criminal conduct, and suitability of each district for accurate fact finding. [9] Criminal Law €=>H3 1 10k! 13 Most Cited Cases Venue for federal obscenity prosecution was appropriate in judicial district in which allegedly obscene materials transmitted from defendant's computer bulletin board business were received by member who had defendant's permission to access and copy graphics files from bulletin board. [lOJ Constitutional Law €=>82(10) 92k82(10) Most Cited Cases [10] Obscenity 28 Ik7 Most Cited Cases Defendants' right of privacy protecting possession of obscene materials in their home did not preclude prosecution for transporting obscene materials through interstate commerce based on their operation of business that advertised and promised members availability and transportation of sexually- explicit graphics files from defendants' computer bulletin board. 18 U.S.C.A. § 1465. [11] Obscenity €=>7 28 Ik7 Most Cited Cases Contemporary community standards of obscenity in judicial district in which personal computer received sexually-explicit computer-generated graphics files from defendant's computer bulletin board business applied to prosecution of defendants for interstate transport of obscene materials. 18 U.S.C.A. § 1465. [12] Criminal Law €=>1038.1(2) 110kl038.1(2) Most Cited Cases Challenge to jury instruction raised for first time at sentencing would be reviewed only for plain error. [13] Criminal Law €=^824(15) 110k824(15) Most Cited Cases District court had no obligation to give, sua sponte, augmented unanimity instructions informing jurors that they all had to agree that defendant committed same one of distinct acts alleged in count of indictment, absent demonstration of tangible risk of jury confusion, complex counts in indictment, or variance between indictment and proof at trial. [14] Obscenity €=>17 281kl7 Most Cited Cases Government was not required to present expert testimony regarding prurient appeal to deviant groups from sexually-explicit computer-generated images and videotapes available from defendants' computer bulletin board business, for purposes of determining whether materials were obscene; jury received sufficient guidance from expert testimony presented by defense and from materials themselves which portrayed bestiality, incest, rape, and sex scenes involving defecation, urination, and sado-masochistic abuse. 18 U.S.C.A. § 1465. [15] Criminal Law €=>1038.1(4) 110kl038.1(4) Most Cited Cases Plain error did not arise from instruction that "facility or means of interstate commerce" element of federal obscenity prosecution included any method of communication between different states. 18 U.S.C.A. § 1465. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS [16] Criminal Law 1 10k! 153(1) Most Cited Cases Abuse of discretion standard of review applied to district court's determinations of relevancy of evidence and to its balancing of potentially unfair prejudicial impact of evidence against its probative value. Fed.Rules Evid.Rules 401, 403, 28 U.S.C.A. [17] Criminal Law €==>1144.12 HOkl 144.12 Most Cited Cases In reviewing district court's balancing of potentially unfair prejudicial impact of evidence against its probative value, reviewing court must view evidence in light most favorable to its proponent, giving evidence its maximum reasonable probative force and its minimum reasonable prejudicial value. Fed.Rules Evid.Rule 403, 28 U.S.C.A. [18] Criminal Law €=>369.2(3.1) 110k369.2(3.1) Most Cited Cases Probative value of two minutes from uncharged child pornography videotape in showing defendant's predisposition to commit obscenity offenses, in order to rebut entrapment defense, was not substantially outweighed by danger of unfair prejudice to defendant. Fed.Rules Evid.Rule 403, 28 U.S.C.A. [19] Criminal Law €=^369.2(3.1) 110k369.2(3.1) Most Cited Cases Defendants were not unfairly prejudiced by admission of sexually-explicit computer graphic files available from defendants' computer bulletin board but not charged in obscenity prosecution, in light of fact that each file was image copied from frame of charged videotapes which had been admitted in their entirety. Fed.Rules Evid.Rule 403, 28 U.S.C.A. [20] Criminal 110k371(l) Most Cited Cases Sexually-explicit descriptions of uncharged computer graphics files and videotapes available from defendants' computer bulletin board business were relevant to issues of scienter and pandering for federal obscenity prosecution; defendants posted graphic descriptions in public areas of their bulletin board system as method of advertising for customers. Fed.Rules Evid.Rule 40 1 , 28 U.S.C.A. [21] Criminal Law €==>1134(3) 1 10k! 134(3) Most Cited Cases As general rule, Court of Appeals will not review claims of ineffective counsel that are raised for first time on appeal unless record has been sufficiently developed so as to allow Court to evaluate counsel's performance; such claims are best brought by defendant in postconviction proceeding so that parties can develop adequate record on issue. U.S.C.A. Const.Amend. 6. [22] Criminal Law €==>641.5(5) 1 10k641.5(5) Most Cited Cases District court's refusal of defendant's request for separate counsel from codefendant did not deny her effective assistance of counsel, in light of facts that defendant did not make request until day of trial, that district court conducted inquiry to determine that defendant previously had been informed of and waived right to separate counsel, and that defendant refused court's offer to arrange standby separate counsel whom non-indigent defendant would have had to reimburse at rate charged by court-appointed attorneys. U.S.C.A. ConstAmend. 6. [23] Criminal Law €=^1158(1) 1 10k! 158(1) Most Cited Cases Sentencing court's finding regarding acceptance of responsibility is entitled to great deference and is reversed only if found to be clearly erroneous. U.S.S.G. § 3E1.1, comment, (n.5), 18 U.S.C.A. [24] Sentencing and Punis 350Hk765 Most Cited Cases (Formerly HOkl 252) Defendants were not entitled to two-level reduction for acceptance of responsibility for violations of federal obscenity statute of which they had been convicted, despite their acknowledgement of their conduct in running computer bulletin board service from which members could obtain sexually- explicit graphic files and videotapes, in light of defendants' failure to acknowledge character of materials found to be obscene and failure to put aside making their living through same means. U.S.S.G. §§ 3El.l(a), 3E1.1, comment. (n.l(b)), 18 U.S.C.A. *704 Dan L. Newsom, Asst. U.S. Atty. (argued and briefed), Memphis, TN, for U.S. Thomas J. Nolan (argued and briefed), Nolan & Armstrong, Palo Alto, CA, for Robert Alan Thomas. James D. Causey (argued and briefed), Causey, Caywood, Taylor & McManus, Memphis, TN, for Carleen Thomas. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 Christopher A. Hansen (briefed), American Civil Liberties Union Foundation, New York City, amicus curiae American Civil Liberties Union, American Civil Liberties Union of Northern California, American Civil Liberties Union of Tennessee, The National Writers Union, Feminists for Free Expression, Thomas Jefferson Center for the Protection of Free Expression. Leonard J. Henzke, Jr. (briefed), Ginsburg, Feldman and Bress, Washington, DC, for amicus curiae Interactive Services Ass'n. Raphael Winick (briefed), Latham & Watkins, New York City, amicus curiae Society for Electronic Access. Shari Steele (briefed), Electronic Frontier Foundation, Washington, DC, amicus Curiae Electronic Frontier Foundation. Bruce A. Taylor (briefed), National Law Center for Children and Families, Fairfax, VA, amicus curiae National Law Center for Children and Families, National Family Legal Foundation, Morality in Media, American Family Ass'n, Maryland Coalition Against Pornography, Family Research Council, Focus on the Family, National Coalition for the Protection of Children & Families, Enough is Enough. Before: MARTIN and BATCHELDER, Circuit Judges; EDMUNDS, District Judge. [FN*] FN* The Honorable Nancy G. Edmunds, United States District Judge for the Eastern District of Michigan, sitting by designation. EDMUNDS, District Judge. Defendants Robert and Carleen Thomas appeal their convictions and sentences for violating 18 U.S.C. §§ 1462 and 1465, federal obscenity laws, in connection with their operation *705 of an electronic bulletin board. For the following reasons, we AFFIRM Robert and Carleen Thomas' convictions and sentences. Robert Thomas and his wife Carleen Thomas began operating the Amateur Action Computer Bulletin Board System ("AABBS") from their home in Milpitas, California in February 1991. The AABBS was a computer bulletin board system that operated by using telephones, modems, and personal computers. Its features included e-mail, chat lines, public messages, and files that members could access, transfer, and download to their own computers and printers. Information loaded onto the bulletin board was first converted into binary code, i.e., O's and 1's, through the use of a scanning device. After purchasing sexually-explicit magazines from public adult book stores in California, Defendant Robert Thomas used an electronic device called a scanner to convert pictures from the magazines into computer files called Graphic Interchange Format files or "GIF" files. The AABBS contained approximately 14,000 GIF files. Mr. Thomas also purchased, sold, and delivered sexually- explicit videotapes to AABBS members. Customers ordered the tapes by sending Robert Thomas an e-mail message, and Thomas typically delivered them by use of the United Parcel Service ("U.P.S."). Persons calling the AABBS without a password could view the introductory screens of the system which contained brief, sexually-explicit descriptions of the GIF files and adult videotapes that were offered for sale. Access to the GIF files, however, was limited to members who were given a password after they paid a membership fee and submitted a signed application form that Defendant Robert Thomas reviewed. The application form requested the applicant's age, address, and telephone number and required a signature. Members accessed the GIF files by using a telephone, modem and personal computer. A modem located in the Defendants' home answered the calls. After they established membership by typing in a password, members could then select, retrieve, and instantly transport GIF files to their own computer. A caller could then view the GIF file on his computer screen and print the image out using his printer. The GIF files contained the AABBS name and access telephone number; many also had "Distribute Freely" printed on the image itself. In July 1993, a United States Postal Inspector, Agent David Dirmeyer ("Dirmeyer"), received a complaint regarding the AABBS from an individual who resided in the Western District of Tennessee. Dirmeyer dialed the AABBS' telephone number. As a non-member, he viewed a screen that read "Welcome to AABBS, the Nastiest Place On Earth," and was able to select various "menus" and read graphic descriptions of the GIF files and videotapes that were offered for sale. Subsequently, Dirmeyer used an assumed name and sent in $55 along with an executed application form to the AABBS. Defendant Robert Thomas called Dirmeyer at his undercover telephone number in Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS Memphis, Tennessee, acknowledged receipt of his application, and authorized him to log-on with his personal password. Thereafter, Dirmeyer dialed the AABBS's telephone number, logged-on and, using his computer/modem in Memphis, downloaded the GIF files listed in counts 2-7 of the Defendants' indictments. These GIF files depicted images of bestiality, oral sex, incest, sado-masochistic abuse, and sex scenes involving urination. Dirmeyer also ordered six sexually-explicit videotapes from the AABBS and received them via U.P.S. at a Memphis, Tennessee address. Dirmeyer also had several e-mail and chat-mode conversations with Defendant Robert Thomas. On January 10,1994, a search warrant was issued by a U.S. Magistrate Judge for the Northern District of California. The AABBS' location was subsequently searched, and the Defendants' computer system was seized. On January 25, 1994, a federal grand jury for the Western District of Tennessee returned a twelve-count indictment charging Defendants Robert and Carleen Thomas with the following criminal violations: one count under 18 U.S.C. § 371 for conspiracy *706 to violate federal obscenity laws-18 U.S.C. §§ 1462, 1465 (Count 1), six counts under 18 U.S.C. § 1465 for knowingly using and causing to be used a facility and means of interstate commerce—a combined computer/telephone system—for the purpose of transporting obscene, computer-generated materials (the GIF files) in interstate commerce (Counts 2-7), three counts under 18 U.S.C. § 1462 for shipping obscene videotapes via U.P.S. (Counts 8-10), one count of causing the transportation of materials depicting minors engaged in sexually explicit conduct in violation of 18 U.S.C. §2252(a)(l)as to Mr. Thomas only(Count 11), and one count of forfeiture under 18 U.S.C. § 1467 (Count 12). Both Defendants were represented by the same retained counsel, Mr. Richard Williams of San Jose, California. They appeared twice in federal district court for the Northern District of California, San Jose division, before being arraigned on March 15,1994, hi federal court in Memphis, Tennessee. They did not retain local counsel for the Tennessee criminal prosecution. Both Defendants were tried by a jury in July, 1994. Defendant Robert Thomas was found guilty on all counts except count 11 (child pornography). Defendant Carleen Thomas was found guilty on counts 1-10. The jury also found that the Defendants' interest in their computer system should be forfeited to the United States. Robert and Carleen Thomas were sentenced on December 2,1994 to 3 7 and 30 months of incarceration, respectively. They filed their notices of appeal on December 9, 1994. II. A. [1] Defendants contend that their conduct, as charged in counts 1-7 of their indictments, does not constitute a violation of 18 U.S.C. § 1465. This presents a question of statutory interpretation, a matter of law, and is reviewed by this court under a de novo standard. United States v. Hans, 921 F.2d 81, 82 (6th Cir.1990). [FN1] FN1. Defendants assert that an appellate court is required to conduct an independent review of the entire record to ensure that their First Amendment rights are protected. Base Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505, 104 S.Ct. 1949, 1962, 80 L.Ed.2d 502 (1984). It is true that in Base, the United States Supreme Court recognized that an appellate court is to conduct an independent review of the record when constitutional facts are at issue, i.e., actual malice in a libel case or the finding of obscenity in pornography cases. There is no need to conduct an independent review when constitutional facts are not at issue. Accordingly, this first issue, which involves only statutory interpretation is reviewed under a de novo standard. Defendants' challenge to their convictions under counts 1-7, rests on two basic premises: 1) Section 1465 does not apply to intangible objects like the computer GIF files at issue here, [FN2] and 2) Congress did not intend to regulate computer transmissions such as those involved here because 18 U.S.C. § 1465 does not expressly prohibit such conduct. FN2. Section 1465 provides: Whoever knowingly transports in interstate or foreign commerce for the purpose of sale or distribution, or knowingly travels in interstate commerce, or uses a facility or means of interstate commerce for the purpose of transporting obscene material in interstate or foreign commerce, any obscene, lewd, lascivious, or filthy book, pamphlet, picture, film, paper, letter, writing, print, silhouette, drawing, figure, image, cast, phonograph recording, electrical transcription or other Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 article capable of producing sound or any other matter of indecent or immoral character, shall be fined under this title or imprisoned not more than five years, or both. The transportation as aforesaid of two or more copies of any publication or two or more of any article of the character described above, or a combined total of five such publications and articles, shall create a presumption that such publications or articles are intended for sale or distribution, but such presumption is rebuttable. 42 U.S.C.A. § 1465 (West 1995 Supp.)- In support of their first premise, Defendants cite a Tenth Circuit dial-a-porn decision which holds that 18 U.S.C. §§ 1462 and 1465 prohibit the interstate transportation of tangible objects; not intangible articles like pre-recorded telephone messages. See United States v. Carlin Commun., Inc., 815 F.2d 1367, 1371 (10th Cir.1987). Defendants claim Carlin is controlling because transmission of the GIF files at issue under counts 1-7 involved an intangible string of O's and 1's *707 which became viewable images only after they were decoded by an AABBS member's computer. We disagree. [2] The subject matter in Car//«--telephonic communication of pre- recorded sexually suggestive comments or proposals—is inherently different from the obscene computer-generated materials that were electronically transmitted from California to Tennessee in this case. Defendants erroneously conclude that the GIF files are intangible, and thus outside the scope of § 1465, by focusing solely on the manner and form in which the computer-generated images are transmitted from one destination to another. United States v. Gilboe, 684 F.2d 235 (2nd Cir.1982), cert, denied, 459 U.S. 1201, 103 S.Ct. 1185, 75 L.Ed.2d 432 (1983), illustrates this point. In Gilboe, the Second Circuit rejected the argument that the defendant's transmission of electronic impulses could not be prosecuted under a criminal statute prohibiting the transportation of money obtained by fraud. The Gilboe court reasoned that: [electronic signals in this context are the means by which funds are transported. The beginning of the transaction is money in one account and the ending is money in another. The manner in which the funds were moved does not affect the ability to obtain tangible paper dollars or a bank check from the receiving account. Id. at 238. The same rationale applies here. Defendants focus on the means by which the GIF files were transferred rather than the fact that the transmissions began with computer-generated images in California and ended with the same computer-generated images in Tennessee. The manner in which the images moved does not affect their ability to be viewed on a computer screen in Tennessee or their ability to be printed out in hard copy in that distant location. [3] The record does not support Defendants' argument that they had no knowledge, intent or expectation that members of their AABBS would download and print the images contained in their GIF files. They ran a business that advertised and promised its members the availability and transportation of the sexually-explicit GIF files they selected. In light of the overwhelming evidence produced at trial, it is spurious for Defendants to claim now that they did not intend to sell, disseminate, or share the obscene GIF files they advertised on the AABBS with members outside their home and in other states. [4] We also disagree with Defendants' corollary position, raised at oral argument, that they were prosecuted under the wrong statute and that their conduct, if criminal at all, falls within the prohibitions under 47 U.S.C. § 223(b) [FN3] rather than 18 U.S.C. § 1465. As recognized by the Supreme Court, Section 223(b) of the Communications Act of 1934, was drafted and enacted by Congress in 1982 "explicitly to address 'dial-a- porn.'" Sable Communications ofCal, Inc. v. F.C.C., 492 U.S. 115, 120-121, 109 S.Ct. 2829,2833, 106 L.Ed.2d 93 (1989). Congress amended Section 223(b) in 1988 to impose a total ban "on dial-a-porn, making it illegal for adults, as well as children, to have access to sexually-explicit messages" that are indecent or obscene. Id at 122-123, 109 S.Ct. at 2834-35. [FN4] 47 U.S.C. § 223(b) addresses commercial dial-a-porn operations that communicate sexually-explicit telephone messages; not commercial computer bulletin boards that use telephone facilities for the purpose of transmitting obscene, computer-generated images to approved members. FN3. 47 U.S.C. § 223(b) provides: (1) Whoever knowingly (A) within the United States, by means of telephone, makes (directly or by recording device) any obscene communication for commercial purposes to any person, regardless of whether the maker of such communication placed the call; or (B) permits any telephone facility under such person's control to be used for an activity prohibited by subparagraph (A), shall be fined in accordance with Title 18, or Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? imprisoned not more than two years, or both. FN4. In Sable, the Supreme Court affirmed the lower court's decision which upheld Section 223(b)'s "prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages." Id. at 117, 109 S.Ct. at 2832. *708 Defendants' second premise, that Congress did not intend to regulate computer transmissions because the statute does not expressly prohibit such conduct, is faulty as well. We have consistently recognized that when construing federal statutes, our duty is to " 'construe the language so as to give effect to the intent of Congress.' " United States v. Under hill, 813 F.2d 105, 111 (6th Cir.), cert, denied, 482 U.S. 906, 107 S.Ct. 2484, 96 L.Ed.2d 376 (1987) (quoting United States v. American Trucking Associations, Inc., 310 U.S. 534, 542-44, 60 S.Ct. 1059, 1063-64, 84 L.Ed. 1345 (1940)). The Supreme Court observed this principle when it rejected an argument similar to one Defendants raise here, i.e., that Congress could not possibly have intended to include conduct not expressly prohibited in the statute. See United States v. Alpers, 338 U.S. 680, 70 S.Ct. 352, 94 L.Ed. 457 (1950). In United States v. Alpers, the Supreme Court considered the question whether obscene phonograph records~at the time, a novel means of transmitting obscenity—came within the prohibition of 18 U.S.C. § 1462. Initially, the Court acknowledged that criminal statutes are to be strictly construed and that "no offense may be created except by the words of Congress used in their usual and ordinary way." Id. at 681, 70 S.Ct. at 353. The Court emphasized, however, that Congress' intent is the most important determination and statutory language is not to be construed in a manner that would defeat that intent. Applying those principles, the Court held that the rule ofejusdem generis [FN5] should not be "employed to render general words meaningless" or "be used to defeat the obvious purpose of legislation." Id. at 681-83, 70 S.Ct. at 354. It recognized that "[t]he obvious purpose of [Section 1462] was to prevent the channels of interstate commerce from being used to disseminate" any obscene matter. Id. at 683, 70 S.Ct. at 3 54. The Court further recognized that Section 1462 "is a comprehensive statute, which should not be constricted by a mechanical rule of construction." Id. at 684, 70 S.Ct. at 354. Accordingly, the Court rejected the defendant's argument that the general words "other matter of indecent character" could not be interpreted to include objects comprehensible by hearing (phonographic recordings) rather than sight; an argument similar to the tangible/intangible one raised here, and held that obscene records fell within the scope of the criminal statute. FN5. This rule of statutory construction "limits general terms which follow specific ones to matters similar to those specified." Alpers, 338 U.S. at 683, 70 S.Ct. at 354. [5] In reaching its decision, the Alpers Court found that the legislative history of Section 1462 did not support defendant's sight/sound distinction. It was not persuaded that Congress' amendment of Section 1462 to add motion picture films to the list of prohibited materials "evidenced an intent that obscene matter not specifically added was without the prohibition of the statute." Id. Rather, the Court concluded that the amendment evidenced Congress' preoccupation "with making doubly sure that motion-picture film was within the Act, and was concerned with nothing more or less." Id. We are similarly unpersuaded by Defendants' arguments that the absence of the words "including by computer" in Section 1465, despite Congress' addition of those words in other legislation, is evidence of its intent not to criminalize conduct, such as Defendants' that falls within the plain language and intent of Section 1465. Furthermore, under similar facts, the U.S. Air Force Court of Criminal Appeals recently considered § 1465's plain language and its intended purpose. In United States v. Maxwell, 42 M.J. 568 (A.F.Ct.Crim.App. 1995), a defendant was charged with violating Section 1465 because he had transmitted obscene visual images electronically through the use of an on-line computer service. He argued that since the statute is silent concerning computer transmissions, such transmissions were not to be included within the terms "transporting obscene materials in interstate or foreign commerce." The court observed that well-established principles of statutory construction require a court to look first to the statute's plain language. Maxwell, 42 M.J. at 580 (citing *709Rnbin v. United States, 449 U.S. 424, 430, 101 S.Ct. 698, 701-02, 66 L.Ed.2d 633 (1981)). Applying that principle, the Maxwell court concluded that the defendant's conduct fell within the plain language of Section 1465. Specifically, the court held: [t]he use of the terms "transports," "distribution," "picture," "image" and "electrical transcription" leads Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS us to the inescapable conclusion the statute is fully applicable to the activities engaged in by applicant.... It is clear Congress intended to stem the transportation of obscene material in interstate commerce regardless of the means used to effect that end. Maxwell, 42 M.J. at 580. Likewise, we conclude that Defendants' conduct here falls within the plain language of Section 1465. [FN6] Moreover, our interpretation of Section 1465 is consistent with Congress' intent to legislate comprehensively the interstate distribution of obscene materials. Id. FN6. Our holding here renders moot Defendants' arguments that the district court's instructions on conspiracy were erroneous because they allowed for a conviction based upon a conspiracy to commit conduct wrongfully charged in counts 2-7 of their indictments. B. [6] Defendants also challenge venue in the Western District of Tennessee for counts 2-7 of their indictments. They argue that even if venue was proper under count 1 (conspiracy) and counts 8-10 (videotapes sent via U.P.S.), counts 2-7 (GIF files) should have been severed and transferred to California because Defendants did not cause the GIF files to be transmitted to the Western District of Tennessee. Rather, Defendants assert, it was Dirmeyer, a government agent, who, without their knowledge, accessed and downloaded the GIF files and caused them to enter Tennessee. We disagree. To establish a Section 1465 violation, the Government must prove that a defendant knowingly used a facility or means of interstate commerce for the purpose of distributing obscene materials. Contrary to Defendants' position, Section 1465 does not require the Government to prove that Defendants had specific knowledge of the destination of each transmittal at the time it occurred. [7] [8] "Venue lies in any district in which the offense was committed," and the Government is required to establish venue by a preponderance of the evidence. United States v. Beddow, 957 F.2d 1330, 1335 (6th Cir. 1992) (quoting United States v. Williams, 788F.2d 1213, 1215 (6th Cir.1986)). This court examines the propriety of venue by taking " 'into account a number of factors--the site of the defendant's acts, the elements and nature of the crime, the locus of the effect of the criminal conduct, and the suitability of each district for accurate fact finding ...' " Id. Section 1465 is an obscenity statute, and federal obscenity laws, by virtue of their inherent nexus to interstate and foreign commerce, generally involve acts in more than one jurisdiction or state. Furthermore, it is well- established that "there is no constitutional impediment to the government's power to prosecute pornography dealers in any district into which the material is sent." United States v. Bagnell, 679 F.2d 826, 830 (11th Cir.1982), cert, denied, 460 U.S. 1047, 103 S.Ct. 1449,75 L.Ed.2d 803 (1983); United States v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981). Thus, the question of venue has become one of legislative intent. Bagnell, 679 F.2d at 830. The Bagnell court examined both §§ 1462 and 1465 and found that each statute established a continuing offense within the venue provisions of 18 U.S.C. § 3237(a) "that occur[s] in every judicial district which the material touches." Id. at 830. This court likewise recognized that "venue for federal obscenity prosecutions lies 'in any district from, through, or into which' the allegedly obscene material moves." Peraino, 645 F.2d at 551 (citing 18 U.S.C. § 3237). [9] Substantial evidence introduced at trial demonstrated that the AABBS was set up so members located in other jurisdictions could access and order GIF files which would then be instantaneously transmitted in interstate commerce. Moreover, AABBS materials were distributed to an approved AABBS member known to reside in the Western *710 District of Tennessee. Specifically, Defendant Robert Thomas knew of, approved, and had conversed with an AABBS member in that judicial district who had his permission to access and copy GIF files that ultimately ended up there. Some of these GIF files were clearly marked "Distribute Freely." In light of the above, the effects of the Defendants' criminal conduct reached the Western District of Tennessee, and that district was suitable for accurate fact-finding. Accordingly, we conclude venue was proper in that judicial district. C. Defendants further argue that their convictions under counts 1-7 of their indictments violate their First Amendment rights to freedom of speech. As the Supreme Court noted in Base, when constitutional facts [FN7] are at issue, this court has a duty to conduct an independent review of the record "both to be sure that the speech in question actually falls within the unprotected category and to confine the perimeters of any unprotected category within acceptably narrow Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 9 limits in an effort to ensure that protected expression will not be inhibited." Base Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 505, 104 S.Ct. 1949, 1962, 80 L.Ed.2d 502 (1984). FN7. Some examples of constitutional facts include those that support: the finding of actual malice in a defamation or libel suit; the finding that obscene materials were used solely in the home and were thus protected under Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), or the finding that material is obscene under the test for obscenity set forth in Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 2614-15, 37 L.Ed.2d 419 (1973). 1. Defendants' Right to Possess the GIF Files in their Home Defendants rely on Stanley v. Georgia, 394 U.S. 557, 89 S.Ct. 1243, 22 L.Ed.2d 542 (1969), and argue they have a constitutionally protected right to possess obscene materials in the privacy of then" home. They insist that the GIF files containing sexually-explicit material never left their home. Defendants' reliance on Stanley is misplaced. The Supreme Court has clarified that Stanley "depended not on any First Amendment Right to purchase or possess obscene materials, but on the right to privacy in the home." United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123, 126,93 S.Ct. 2665, 2668, 37 L.Ed.2d 500 (1973). It has also recognized that the right to possess obscene materials in the privacy of one's home does not create "a correlative right to receive it, transport it, or distribute it" in interstate commerce even if it is for private use only. Nor does it create "some zone of constitutionally protected privacy [that] follows such material when it is moved outside the home area." United States v. Orito, 413 U.S. 139,141-42,93 S.Ct. 2674,2677,37 L.Ed.2d 513 (1973); see also 12 200-Ft. Keels, 413 U.S. at 128, 93 S.Ct. at 2669. [10] Defendants went beyond merely possessing obscene GIF files in their home. They ran a business that advertised and promised its members the availability and transportation of the sexually-explicit GIF files they selected. In light of the overwhelming evidence produced at trial, it is spurious for Defendants to claim now that they did not intend to sell, disseminate, or share the obscene GIF files they advertised on the AABBS with members outside their home and in other states. 2. The Community Standards to be Applied When Determining Whether the GIF Files Are Obscene In Miller v. California, 413 U.S. 15,93 S.Ct. 2607,37 L.Ed.2d 419 (1973), the Supreme Court set out a three-prong test for obscenity. It inquired whether (1) " 'the average person applying contemporary community standards' would find that the work, taken as a whole appeals to the prurient interest"; (2) it "depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law"; and (3) "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Id at 24, 93 S.Ct. at 2615. [11] Under the first prong of the Miller obscenity test, the jury is to apply "contemporary community standards." Defendants acknowledge the general principle that, in *711 cases involving interstate transportation of obscene material, juries are properly instructed to apply the community standards of the geographic area where the materials are sent. Miller, 413 U.S. at 15, 30-34, 93 S.Ct. at 2610, 2618-20. Nonetheless, Defendants assert that this principle does not apply here for the same reasons they claim venue was improper. As demonstrated above, this argument cannot withstand scrutiny. The computer-generated images described in counts 2-7 were electronically transferred from Defendants' home in California to the Western District of Tennessee. Accordingly, the community standards of that judicial district were properly applied in this case. Issues regarding which community's standards are to be applied are tied to those involving venue. It is well-established that: [vjenue for federal obscenity prosecutions lies "in any district from, through, or into which" the allegedly obscene material moves, according to 18 U.S.C. § 3237. This may result in prosecutions of persons in a community to which they have sent materials which is obscene under that community's standards though the community from which it is sent would tolerate the same material. United Stales v. Peraino, 645 F.2d 548, 551 (6th Cir. 1981). Prosecutions may be brought either in the district of dispatch or the district of receipt, Bagnell, 679 F.2d at 830-31, and obscenity is determined by the standards of the community where the trial takes place. See Miller, 413 U.S. at 15, 30- 34, 93 S.Ct. at 2610, 2618-20; Hamlingv. United States, 418 U.S. 87, 105- 6, 94 S.Ct. 2887, 2901-02, 41 L.Ed.2d 590 (1974); Sable, 492 U.S. at 125, 109 S.Ct. at 2836. Moreover, the federal courts have consistently recognized that it is Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 10 not unconstitutional to subject interstate distributors of obscenity to varying community standards. Handing. 418 U.S. at 106, 94 S.Ct. at 2901-02; United States v. Sandy, 605 F.2d 210, 217 (6th Cir.), cert, denied, 444 U.S. 984, 100 S.Ct. 490, 62 L.Ed.2d 412 (1979). 3. The Implications of Computer Technology on the Definition of "Community" Defendants and Amicus Curiae appearing on their behalf [FN8] argue that the computer technology used here requires a new definition of community, i.e., one that is based on the broad-ranging connections among people in cyberspace rather than the geographic locale of the federal judicial district of the criminal trial. Without a more flexible definition, they argue, there will be an impermissible chill on protected speech because BBS operators cannot select who gets the materials they make available on then" bulletin boards. Therefore, they contend, BBS operators like Defendants will be forced to censor their materials so as not to run afoul of the standards of the community with the most restrictive standards. FN8. The following Amicus Curiae submitted briefs on behalf of Defendants in this matter: the American Civil Liberties Union, the Interactive Services Association, the Society for Electronic Access, and The Electronic Frontier Foundation. Defendants' First Amendment issue, however, is not implicated by the facts of this case. This is not a situation where the bulletin board operator had no knowledge or control over the jurisdictions where materials were distributed for downloading or printing. Access to the Defendants' AABBS was limited. Membership was necessary and applications were submitted and screened before passwords were issued and materials were distributed. Thus, Defendants had in place methods to limit user access in jurisdictions where the risk of a finding of obscenity was greater than that in California. They knew they had a member in Memphis; the member's address and local phone number were provided on his application form. If Defendants did not wish to subject themselves to liability in jurisdictions with less tolerant standards for determining obscenity, they could have refused to give passwords to members in those districts, thus precluding the risk of liability. This result is supported by the Supreme Court's decision in Sable Communications of Cal, Inc. v. F.C.C. where the Court rejected Sable's argument that it should not be compelled to tailor its dial-a-porn messages to the standards of the least tolerant community. *712 492 U.S. 115, 125- 26, 109 S.Ct. 2829, 2836-37, 106 L.Ed.2d 93 (1989). The Court recognized that distributors of allegedly obscene materials may be subjected to the standards of the varying communities where they transmit their materials, citing Hamling, and further noted that Sable was "free to tailor its messages, on a selective basis, if it so chooses, to the communities it chooses to serve." Id. at 125, 109 S.Ct. at 2836. The Court also found no constitutional impediment to forcing Sable to incur some costs in developing and implementing a method for screening a customer's location and "providing messages compatible with community standards." Id. Thus, under the facts of this case, there is no need for this court to adopt a new definition of "community" for use in obscenity prosecutions involving electronic bulletin boards. This court's decision is guided by one of the cardinal rules governing the federal courts, i.e., never reach constitutional questions not squarely presented by the facts of a case. Brockett v. Spokane Arcades, Inc., 472 U.S. 491,502,105 S.Ct. 2794,2801, 86 L.Ed.2d 394 (1985). D. [12] Defendants next raise a number of challenges to the jury instructions given at their trial. Initially, they claim that, as to counts 2, 3, 6 and 9, the district court should have included an augmented unanimity instruction because those counts involved more than one GIF file or videotape. The district court instructed the jury that "[i]f more than one article is alleged to be obscene in a particular count, the government is required to show only that one of these articles was obscene." There was no request for an augmented unanimity instruction and there was no objection at trial to the instruction given. The issue was raised for the first time at sentencing. Accordingly, this court reviews for plain error. United States v. Mendez- Ortiz, 810 F.2d 76 (6th Cir. 1986), cert, denied, 480 U.S. 922,107 S.Ct. 1384,94 L.Ed.2d 697 (1987). We have recognized that "[t]he plain error doctrine is to be used 'only in exceptional circumstances' and only where the error is so plain that 'the trial judge and the prosecutor were derelict in countenancing it.' " Id. at 78. Moreover, "[w]e consider whether the instructions, when taken as a whole, were so clearly wrong as to produce a grave miscarriage of justice." United States v. Sanderson, 966 F.2d 184, 187 (6th Cir. 1992). [13] When one count of an indictment charges that a defendant committed an offense by "multiple alternative Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 11 'conceptually distinct acts," the defendant can request that the court give the jury an augmented unanimity instruction, i.e., one that tells them that, with regard to this particular count, they must all agree that the defendant committed one of those distinct acts. United States v. Duncan, 850 F.2d 1104,1110 (6th Cir. 1988). With regard to specific, or augmented unanimity instructions, this court has recognized that the instruction is not necessary "unless 1) a count is extremely complex, 2) there is variance between the indictment and the proof at trial, or 3) there is a tangible risk of jury confusion." Sanderson, 966 F.2d at 187. Contrary to Defendants' assertions, this court's decision in Duncan does not require a court to sua sponte instruct the jury on specific unanimity when more than one basis for conviction is presented in a single count. Rather, we have consistently recognized that the need arises when it is shown that there is a "genuine risk that the jury is confused or that a conviction may occur as the result of different jurors concluding that a defendant committed different acts." United States v. Sims, 975 F.2d 1225,1241 (6th Cir. 1992), cert, denied, 507 U.S. 932, 113 S.Ct. 1315, 122 L.Ed.2d 702 (1993). In Duncan, the court held that an augmented unanimity instruction should have been given because the court had been apprised of the unanimity problem in pretrial motions and by "a mid-deliberation question from the jury raising the genuine possibility that conviction could occur as the result of different jurors using a different false statement as the underlying factual predicate for guilt," Duncan, 850 F.2d at 1105. Defendants have not demonstrated that there was a tangible risk of jury confusion here. Thus, this case is easily distinguished from Duncan. *713 Furthermore, counts 2, 3, 6 and 9 were not complex, and there was no variance between the indictment and the proof at trial. Accordingly, none of the circumstances existed that would give rise to the need for a specific unanimity instruction. Consequently, we conclude that the district court did not commit error when it gave general instructions on unanimity. Furthermore, considering the subject matter of each GIF file and videotape listed in counts 2, 3, 6 and 9, we find it unlikely that the jury would have had any trouble reaching unanimity on the fact that one item described in each of those counts was obscene. E. [14] We next address the Defendants' argument that the district court erred when it instructed the jury that the government was not required to present expert testimony regarding the prurient appeal of the materials at issue here. [FN9] Under the first prong of the Miller obscenity test, the jury must consider whether the allegedly obscene material "appeals to the prurient interest." Miller, 413 U.S. at 24, 93 S.Ct. at 2615. FN9. The district court instructed the jury as follows: You have heard testimony from an expert witness presented on behalf of the defendants. An expert is allowed to express his opinion on those matters about which he has special knowledge and training. Expert testimony is presented to you on the theory that someone that is experienced in the field can assist you in understanding the evidence or in reaching an independent decision on the facts. There is no requirement, however, that expert testimony be presented in an obscenity case. The government need not produce expert evidence that the materials are obscene, but may rely on the computer generated images and videotapes themselves for its argument that the materials are obscene. The computer-generated images and videotapes involved here portrayed bestiality, incest, rape, and sex scenes involving defecation, urination, and sado-masochistic abuse. Defendants argue that the Government is required to present expert testimony when sexually-explicit material is directed at a deviant group. We disagree. Neither the United States Supreme Court nor this court has adopted any suchper se rule. The Supreme Court has consistently recognized that "[e]xpert testimony is not necessary to enable the jury to judge the obscenity of material which ... has been placed into evidence." Hamling v. United States, 418 U.S. 87, 100, 94 S.Ct. 2887, 2899, 41 L.Ed.2d 590 (1974) (citing Paris Adult Theatre I v. Slaton, 413 U.S. 49,56,93 S.Ct. 2628,2634-35,37 L.Ed.2d446 (1973), Kaplan v. California, 413 U.S. 115, 120-21, 93 S.Ct. 2680,2684-2685,37 L.Ed.2d 492 (1973), Ginzburg v. UnitedStates, 383 U.S. 463,465,86 S.Ct. 942,944-45, 16 L.Ed.2d 31 (1966)). In Paris Adult Theatre I, the Court observed that the allegedly obscene materials, "obviously, are the best evidence of what they represent" and have been consistently recognized as " 'sufficient in themselves for the determination of the question.' " 413 U.S. at 56, 93 S.Ct. at 2634-35 (quoting Ginzburg, 383 U.S. at 465, 86 S.Ct. at 944). The Paris I Court further elaborated that: [tjhis is not a subject that lends itself to the traditional use of expert testimony. Such testimony is usually admitted for the purpose of explaining to lay jurors Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 12 what they otherwise could not understand. No such assistance is needed by jurors in obscenity cases; indeed the "expert witness" practices employed in these cases have often made a mockery out of the otherwise sound concept of expert testimony. Id. at 56, n. 6, 93 S.Ct. at 2634, n. 6 (citations omitted). The Court has explicitly reserved judgment on the issue whether expert testimony is required in the "extreme case" where "contested materials are directed at such a bizarre deviant group that the experience of the trier of fact would be plainly inadequate to judge whether the material appeals to the prurient interest." Id. In Pinkus v. United States, 436 U.S. 293, 98 S.Ct. 1808, 56 L.Ed.2d 293 (1978), the Court once again reserved judgment on this question, finding that it was not presented with the "extreme case" referenced in Paris /because there was expert testimony in evidence which, when "combined with the exhibits themselves, sufficiently guided the jury." Pinkus, 436 U.S. at 303, 98 S.Ct. at 1815. *714 Expert testimony on prurient appeal to deviant groups was also presented in this case. Defendants' expert, Dr. Victor Pascale, a licensed clinical psychologist, testified at trial about how certain groups of individuals can become sexually aroused by objects or conduct not normally thought of as sexual in nature, i.e., the use of whips, cross-dressing, urination, defecation, infliction of pain (sado-masochism), and voyeurism. Thus, as in Pinkus, we find that the expert testimony, when combined with the allegedly obscene materials themselves, was sufficient to guide the jury with regard to prurient appeal. Defendants rely heavily on decisions from the Second Circuit. See United States v. Klaw, 350 F.2d 155 (2nd Cir.1965); United States v. Petrov, 747 F.2d 824 (2nd Cir. 1984), cert, denied, 471 U.S. 1025,105 S.Ct. 2037, 85 L.Ed.2d 318 (1985). In Petrov, however, the court concluded that Klaw is "properly understood to require expert testimony that material appeals to the prurient interest of a deviant group only when the material portrays conduct not generally understood to be sexual." Id. at 836. Furthermore, the Petrov court concluded that expert testimony is "not required to establish the prurient appeal of photographs depicting bestiality." Id. at 837. The court further clarified that although Klaw required expert testimony on depictions of sado-masochistic activity, the requirement was met where the defendant's expert testified on cross- examination that such materials would appeal to the sexual interest of a small minority of individuals even though they would not appeal to the average person. Id. at 830-31. Thus, Petrov does not compel a different result, and this court concludes that the challenged jury instruction was not erroneous. F. [ 15] A required element of § 1465 is that the defendant knowingly "used a facility or means of interstate commerce" for the purpose of transporting or transmitting obscene material. Defendants argue that the district court's instruction, that "facility or means of interstate commerce" includes "any method of communication between different states," improperly expanded the meaning of this criminal statute. Defendants failed to object to the instruction, therefore, it is examined for plain error. We conclude that there is no plain error here. Contrary to Defendants' argument, the instruction finds support in 2 Devitt, Blackmar and O'Malley, Federal Jury Practice and Instruction, Criminal, (4thEd.l990), § 46.06 at 664, which provides: The term "uses any facility in interstate... commerce" means employing or utilizing any method of communication or transportation between one state and another. The term "uses any facility in interstate ... commerce", for example, includes the use of the telephone and mails. G. [16] [17] Defendants claim they were denied due process of law and a fair trial by the admission of uncharged GIF files and descriptions of uncharged materials at their trial. We will not disturb the district court's admission of this evidence and its determinations of relevancy absent a clear abuse of discretion. United States v. Seago, 930 F.2d 482, 494 (6th Cir. 1991). We also apply an abuse of discretion standard to the district court's decision in balancing the potentially unfair prejudicial impact of evidence against its probative value. United States v. Feinman, 930 F.2d 495, 499 (6th Cir. 1991). In reviewing how such a balance is weighed, "the appellate court must view the evidence in the light most favorable to its proponent, giving 'the evidence its maximum reasonable probative force and its minimum reasonable prejudicial value.'" United States v. Moore, 917 F.2d 215, 233 (6th Cir.1990), cert, denied, 499 U.S. 963, 111 S.Ct. 1590, 113L.Ed.2d654(1991). Defendants complain that the district court erred when it allowed the Government to introduce 31 uncharged GIF files, portions of 2 uncharged videos, and the AABBS' descriptions of uncharged GIF files and videotapes at trial. They assert that the material had no probative value, and its introduction served only to Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 13 unfairly prejudice the jury. Based on our review of the record, we find no abuse of discretion. *715 [18] With regard to the videotapes, the record reveals that the district court considered whether the probative value of two minutes of one of the three "child nudist" videotapes sent by Defendant Robert Thomas to Dirmeyer was substantially outweighed by the danger of unfair prejudice. F.R.E. 401, 403. Despite an objection from Defendants' counsel, the district court ruled that the material was probative to the issue of Mr. Thomas' predisposition in light of his entrapment defense to count 11, charging him with knowing receipt of child pornography. We find no error in the admission of the videotapes since they were properly introduced in response to the entrapment defense. [19] Defendants' claim that the district court erred when it permitted the jury to see 31 uncharged GIF files is likewise without merit. Each of the GIF file images was made from the charged videotapes by stopping the tapes at a certain point, making a still frame or photograph, and then scanning it onto the AABBS and making it available for distribution as a separate item. Because the entire videotape was properly admitted and viewed by the jury, we reject Defendants' claim of unfair prejudice. [20] Defendants also complain that the district court erred by allowing the jury to hear sexually-explicit descriptions of other uncharged GIF files and videotapes. Contrary to Defendants' contention, this material did have probative value, i.e., it was relevant to establishing scienter and pandering. Defendants posted these graphic descriptions in the public areas of the AABBS, and this was one way they advertised for members. See Mishkin v. New York, 383 U.S. 502, 86 S.Ct. 958, 16 L.Ed.2d 56 (1966); Pinkus, 436 U.S. at 303, 98 S.Ct. at 1814-15. Accordingly, we reject Defendants' argument that the above evidence was clearly more prejudicial than probative under F.R.E. 403, and find no abuse of discretion in its admission under F.R.E. 401. H. Defendants next contend that they were denied effective assistance of counsel at then" trial because their retained counsel failed to: (1) move for dismissal based on Carlin; (2) object to the admission of evidence at trial; (3) move for judgment of acquittal based on the government's requirement to provide expert testimony regarding "prurient appeal" to deviant groups; (4) recognize the conflict of interest inherent in his dual representation of both Defendants; (5) sever the child pornography count; (6) file a suppression motion; (7) request discovery; (8) challenge the indictment as duplicative; (9) move for a mistrial; (10) submit a theory-of- the-case instruction; (11) introduce comparable sexually-explicit videotapes available in Memphis; and (12) with regard to Carleen Thomas, failed to move for a judgment of acquittal at the close of the government's case for lack of evidence of scienter and then called her to the stand when her testimony could only incriminate her. [21] As a general rule, this court "will not review claims of ineffective counsel that are raised for the first time on appeal." United States v. Seymour, 38 F.3d 261, 263 (6th Cir.1994). These claims are " "best brought by a defendant in a post-conviction proceeding under 28 U.S.C. § 2255 so that the parties can develop an adequate record on the issue.1" Id (quoting United States v. Daniel, 956 F.2d 540,543 (6th Cir. 1992)). We consider such claims on direct appeal only where the record has been sufficiently developed so as to allow us to evaluate counsel's performance. Seymour, 38 F.3d at 263. We find that the record here is not adequately developed for us to consider the ineffective assistance of counsel claims asserted above. [22] We will, however, consider Defendant Carleen Thomas' argument that she was denied effective assistance of counsel because the district court refused her request for separate counsel without adequate inquiry as to her reasons. Unlike the above claims, we find the record below is sufficiently developed to address this issue. Carleen Thomas first raised her request for separate counsel on the day of trial. The Government informed the district court that Defendants had previously been informed of their right to separate counsel but they had waived that right. While considering Carleen Thomas' late request, the district court made additional inquiries and reviewed the record to determine whether she had indeed been informed of, and had waived, that right. *716 The inquiry revealed both events had occurred. The district court refused to delay the trial that was set to begin immediately but did offer to arrange for separate standby counsel for Carleen Thomas. The court also informed Carleen Thomas that, because she was not indigent, she would have to reimburse this counsel at the rate charged by court-appointed attorneys. After considering the court's offer, Carleen Thomas stated on the record that she wished to continue with Mr. Williams as her retained counsel. In light of the above, we reject Carleen Thomas' claim. I. [23] Defendants' final argument challenges the district Copr. © West 2004 No Claim to Orig. U.S. Govt. Works court's denial of a two-level reduction in their sentences for acceptance of responsibility. They claim they are entitled to the reduction because they fully acknowledged their conduct in running the AABBS. The sentencing court's finding regarding acceptance of responsibility is entitled to great deference and is reversed only if found to be clearly erroneous. See United States v. Ivery, 999 F.2d 1043, 1045 (6th Cir.1993); see also U.S.S.G. § 3El.l(a), comment, n. 5. U.S.S.G. § 3E1.l(a) provides for atwo-level reduction for a defendant who "clearly demonstrates acceptance of responsibility." To qualify for this reduction, Defendants were required to show by a preponderance of the evidence that they had accepted responsibility for the crime committed. United States v. Williams, 940 F.2d 176 (6th Cir.), cert, denied, 502 U.S. 1016, 112 S.Ct.666,116L.Ed.2d757(1991). U.S.S.G. 3E 1.1 (a), comment, n. 2 clarifies that the reduction is "not intended for a defendant who puts the government to its burden of proof at trial by denying the essential factual elements of guilt, is convicted, and only then admits guilt and expresses remorse." This comment further clarifies that only in "rare situations" will the adjustment apply after a trial and verdict of guilt, e.g., where the defendant makes a challenge to the applicability of a statute to his conduct. Defendants assert that they fit the "rare situation" and should not have been denied the reduction. [24] The sentencing judge, however, stated more than one ground for denying the two-level reduction. She noted that neither Defendant acknowledged the character of the materials found to be obscene. In addition, she found no indication that either of them had put aside making their living through the same means. U.S.S.G. § 3El.l(a), comment n. l(b) lists voluntary termination or withdrawal from criminal conduct as a factor to be considered by the court. This court has recognized that the two-level adjustment is properly denied under circumstances where the defendant continues conduct that is the same type as the underlying offense. See United States v. Reed, 951 F.2d 97, 99-100 (6th Cir.1991), cert, denied, 503 U.S. 996, 112 S.Ct. 1700, 118L.Ed.2d409(1992); United States v. Snyder, 913 F.2d 300, 305 (6th Cir. 1990), cert, denied, 498 U.S. 1039, 111 S.Ct. 709, 112 L.Ed.2d 698 (1991). Accordingly, we hold that the sentencing court's denial of the two-level reduction was not clearly erroneous. III. For the foregoing reasons, this court AFFIRMS Robert and Carleen Thomas' convictions and sentences. Page 14 74 F.3d 701, 64 USLW 2483, 43 Fed. R. Evid. Serv. 969,24 Media L. Rep. 1321,1996 Fed.App. 0032P, 96 Cal. Daily Op. Serv. 609 END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 47 368F.3dll86 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Pagel United States Court of Appeals, Ninth Circuit. WORLD WIDE VIDEO OF WASHINGTON, INC., Plaintiff-Appellant, v. CITY OF SPOKANE, Defendant-Appellee. No. 02-35936. Argued and Submitted Jan. 7, 2004. Filed May 27, 2004. As Amended on Denial of Rehearing and Rehearing En Bane July 12, 2004. Background: Adult-oriented retail business brought § 1983 suit against city, challenging constitutionality of zoning ordinance preventing their location in close proximity to certain land use categories and reasonableness of amount of time allowed for relocation. The United States District Court for the Eastern District of Washington, 227 F.Supp.2d 1143, Alan A. McDonald, Senior District Judge, entered summary judgment for city, and adult-oriented business appealed. Holdings: The Court of Appeals, Tallman, Circuit Judge, held that: (1) ordinance was subject to intermediate scrutiny; (2) ordinance was narrowly tailored to promote significant government interest in reducing undesirable secondary effects of adult stores; (3) ordinance was not facially overbroad; and (4) amortization provision in ordinance requiring relocation within one year was constitutional. Affirmed. West Headnotes [1] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases Laws aimed at controlling the secondary effects of adult businesses are deemed content neutral, thus meriting intermediate scrutiny in determining their constitutionality under First Amendment. U.S.C.A. Const. Amend. 1. [2] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases An ordinance aimed at combating the secondary effects of a particular type of speech survives intermediate scrutiny if it is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and does not unreasonably limit alternative avenues of communication. U.S.C.A. Const.Amend. 1. [3] Constitutional Law €=>90.4(1) 92k90.4( 1) Most Cited Cases [3] Zoning and Planning €=>76 414k76 Most Cited Cases Zoning ordinances prohibiting adult-oriented businesses from operating near certain land use categories and allowing one year for relocation were narrowly tailored to serve city's substantial interest in reducing the undesirable secondary effects of adult stores, and thus survived intermediate scrutiny under First Amendment; ordinance provided adequate alternative locations and thus did not substantially reduce speech by forcing stores to close. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases [4] Zoning and Planning €=>76 414k76 Most Cited Cases Evidence of pornographic litter and public lewdness, and fact that these secondary effects were inexorably intertwined with protected speech, standing alone, were sufficient to show that zoning ordinance that prohibited operation of adult-oriented businesses near certain land uses promoted substantial government interest in eliminating secondary effects of adult-oriented businesses. U.S.C.A. Const.Amend. 1. [5] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases A law is narrowly tailored, for purposes of First Amendment intermediate scrutiny, if it promotes a substantial government interest that would be achieved less effectively absent the regulation. U.S.C.A. Const. Amend. 1. [6] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 2 [6] Zoning and Planning 414k76 Most Cited Cases Adult-oriented business's claim that citizen complaints were biased and unscientific was insufficient to cast direct doubt on testimonial evidence of secondary effects caused by proximity to adult-oriented retail stores, including litter, harassment of female employees, vandalism, and decreased business, and thus to challenge conclusion that city's enactment of ordinance prohibiting such stores near certain land uses was narrowly tailored to substantial government interest in eliminating those effects. U.S.C.A. Const. Amend. 1. [7] Constitutional Law €==>90.4(1) 92k90.4(l) Most Cited Cases [7] Zoning and Planning C=>76 414k76 Most Cited Cases Zoning ordinance imposing restrictions on location of adult-oriented businesses was not unconstitutionally facially overbroad by reason of its definition of adult retail establishment as one devoting "significant or substantial" portion its stock to adult-oriented merchandise. U.S.C.A. Const. Amend. 1. [8] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases [8] Zoning and Planning €=>76 414k76 Most Cited Cases Amortization provision in zoning ordinance prohibiting adult retail stores near certain other uses, which required non-conforming adult-oriented businesses to relocate within one year, was not violative of First Amendment because there were sufficient relocation sites in city, and thus adequate alternative avenues of communication. U.S.C.A. Const. Amend. 1. [9] Zoning and Planning 414k321 Most Cited Cases Municipalities may, consistent with federal constitution, require non-conforming uses to close, change their business, or relocate within a reasonable time period. *1188 Gilbert H. Levy, Seattle, WA, on behalf of the plaintiff-appellant. Stephen A. Smith, Todd L. Nunn, Preston Gates & Ellis, LLP, Seattle, WA, on behalf of the defendant-appellee. Appeal from the United States District Court for the Eastern District of Washington; Alan A McDonald, District Judge, Presiding. D.C. No. CV-02- 00074-AAM. Before GRABER, TALLMAN, and CLIFTON, Circuit Judges. TALLMAN, Circuit Judge. This appeal raises two questions. First, whether the City of Spokane's ordinances regulating the location of adult-oriented retail businesses ("adult stores") are constitutional. Second, whether an amortization period is required in this context 'and, if so, whether a reasonable amount of time was allotted for World Wide Video of Washington, Inc. ("World Wide"), to either relocate its stores or change the nature of its retail operations. Because the record reveals no genuine issue of material fact regarding either of these issues, we affirm the district court's summary judgment for Spokane. I In the late 1990s, city leaders in Spokane grew concerned with the opening of several adult stores in residential areas. To develop a legislative response to this situation, the City compiled information—specifically, studies from other municipalities, relevant court decisions, and police records—documenting the adverse secondary effects of adult stores. On November 29, 2000, Spokane's Plan Commission held a public hearing to consider amending the Municipal Code to combat these documented secondary effects. At this hearing, the City Attorneys office presented the legislative record and gave the Commission an overview of the effect of adult stores on the community. Although a number of citizens testified in favor of amending the Code, World Wide presented no evidence, testimonial or otherwise, at this hearing. On December 13, 2000, after considering public comments and the legislative record, the Plan Commission voted unanimously to recommend that the Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368F.3dll86 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 3 City Council amend the Code. Before the vote at this meeting, two individuals testified against the proposed amendment. Once again, however, World Wide did not participate. On January 29,2001, the Spokane City Council heeded the Plan Commission's recommendation and unanimously passed Ordinance C-32778. [FN1 ] Under Ordinance C-32778, adult stores are subject to Spokane's set-back requirements, which prevent *1189 them from opening in close proximity to certain land use categories. [FN2] Ordinance C-32778 also amended the Code to provide adult stores with an amortization period of one year either to relocate or change the nature of their operations. See SMC § 11.19.395. A procedure was included whereby the owner of a business could seek an extension of this deadline. See id. FN1. The Code as amended by Ordinance C-32778 reads: A. An "adult retail use establishment" is an enclosed building, or any portion thereof which, for money or any other form of consideration, devotes a significant or substantial portion of stock in trade, to the sale, exchange, rental, loan, trade, transfer, or viewing of "adult oriented merchandise". B. Adult oriented merchandise means any goods, products, commodities, or other ware, including but not limited to, videos, CD Roms, DVDs, computer disks or other storage devices, magazines, books, pamphlets, posters, cards, periodicals or non-clothing novelties which depict, describe or simulate specified anatomical area, as defined in Section 11.19.0355, or specified sexual activities, as defined in Section 11.19.0356. Spokane Mun.Code ("SMC") § 11.19.03023. FN2. Specifically, the Spokane Municipal Code provides: 1. An adult retail use establishment [or] an adult entertainment establishment may not be located or maintained within seven hundred fifty feet, measured from the nearest building of the adult retail use establishment or of the adult entertainment establishment to the nearest building of any of the following pre-existing uses: a. public library, b. public playground or park, c. public or private school and its grounds, from kindergarten to twelfth grade, d. nursery school, mini-day care center, or day care center, e. church, convent, monastery, synagogue, or other place of religious worship, f. another adult retail use establishment or an adult entertainment establishment, subject to the provisions of this section. 2. An adult retail use establishment or an adult entertainment establishment may not be located within seven hundred fifty feet of any of the following zones: a. agricultural, b. country residential, c. residential suburban, d. one-family residence, e. two-family residence, f. multifamily residence (R3 and R4), g. residence-office. SMC§ 11.1 Subsequently, Spokane determined that it needed to establish more sites for the relocation of adult stores. Following four Plan Commission meetings on the issue, on March 18, 2002, Spokane enacted Ordinance C-33001, which increased the number of land use categories permitted to accommodate the operation of adult stores. Because Ordinance C-32778 became effective on March 10,2001, all non-conforming uses were required to terminate by March 10, 2002. World Wide applied to Spokane's Planning Director for an extension of the amortization period and was granted an additional six months. World Wide appealed this decision to the city's Hearing Examiner, arguing that a six-month extension was insufficient. The Hearing Examiner affirmed the extension, but held that it would run from the date of his May 15, 2002, decision. World Wide was therefore required to close or change the nature of its businesses by November 15,2002. [FN3] Although we were informed at oral argument that the configuration of World Wide's retail services has changed somewhat, the businesses remain open in their original locations. FN3. World Wide appealed the Hearing Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368F.3dll86 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 4 Examiner's ruling to Spokane County Superior Court under Washington's Land Use Petition Act, RCW 36.70C.005, et seq. On February 27,2002, World Wide filed a § 1983 civil rights action in the United States District Court for the Eastern District of Washington alleging, inter alia, that Ordinances C-32778 and C-33001 (hereinafter, "the Ordinances") violate the *1190 First Amendment. At the close of discovery, Spokane moved for summary judgment. In support of its motion, the City tendered (1) more than 1,500 pages of legislative record related to the Ordinances, including studies from other municipalities concerning the adverse secondary effects associated with adult businesses, [FN4] police reports, relevant court decisions, and evidence submitted by Spokane residents; FN4. Spokane relied on studies from New York City (1994); Garden Grove, California (1991); a coalition of several municipalities in Minnesota (1989); St. Paul, Minnesota (1987); Austin, Texas (1986); Indianapolis, Indiana (1984); Amarillo, Texas (1977); and Los Angeles (1977). (2) the minutes of the Plan Commission and City Council meetings concerning the Ordinances; (3) a report from a real estate appraiser stating that hundreds of parcels of land zoned for adult retail remained available; [FN5] and FN5. When Ordinance C-32778 went into effect, there were a total of seven affected adult stores, six of which were required to relocate. By the time Spokane moved for summary judgment, one affected business had already reopened at a new site. Spokane's appraiser found that 326 properties were available for relocation of adult stores; that 161 of the 326 were best suited for commercial uses; and that 63 of the 161 were actively listed for sale or lease. Applying the set-back requirements of the Ordinances, Spokane determined that 32 of these 63 sites were particularly well-suited to accommodate adult stores. (4) the declarations of several citizens detailing the secondary effects of the existing adult stores. [FN6] FN6. Specifically, these declarants stated that they had witnessed various criminal acts in and around World Wide's stores, including prostitution, drug transactions, public lewdness, harassment of citizens by World Wide's clientele, and pervasive litter, including used condoms, empty liquor bottles, and video packaging featuring graphic depictions of sexual acts. In opposition to Spokane's motion for summary judgment, World Wide offered (1) the declaration of land use planner Bruce McLaughlin, who opined that the studies relied on by Spokane provided no valid basis for the Ordinances because none dealt exclusively with secondary effects produced by retail-only uses and concluded that adult stores in Spokane neither contributed to the depreciation of property values nor resulted in increased calls for police service; (2) police reports and call summaries intended to corroborate McLaughlin's conclusion; (3) the report of a private investigator containing interviews of citizens who claimed that there were no problems related to the adult stores in their neighborhoods; [FN7] FN7. We note that World Wide's investigator indicated hi his deposition that he was instructed not to include information in his report that was unhelpful to his client's legal position. (4) the declaration of a real estate broker stating that there were only 26 available properties and only one was a plausible relocation site for an adult store; [FN8] and FN8. Spokane tendered a supplemental declaration from its appraiser with its summary judgment reply, asserting that World Wide's broker ignored 92 qualifying parcels, which were sufficient to allow simultaneous operation of 18 adult stores, and that, even accepting the data contained in World Wide's broker's report, there were sufficient locations Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) PageS to operate 14 adult stores. Moreover, although World Wide hired a second land use expert, it declined to submit his opinion to the court. World Wide's second expert concluded that there were more than enough possible relocation sites (i.e., 60) for the six stores that needed to move. *1191 (5) evidence that two of World Wide's stores were subject to long-term leases that their landlord was unwilling to dissolve. Additionally, World Wide suggested in its statement of facts that the citizens who provided declarations in support of Spokane's motion were motivated by their disagreement with the content of World Wide's speech rather than by a desire to combat secondary effects. On September 11, 2002, the district court granted Spokane's motion for summary judgment. World Wide timely appealed. II We review de novo the district court's grant of summary judgment. See Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir.2003). Viewing the evidence in the light most favorable to World Wide, we must decide whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id. [1] To determine whether Spokane's Ordinances violate the First Amendment, we must first answer the threshold question of whether they are content based, thus meriting strict scrutiny, or content neutral, thus meriting intermediate scrutiny. Under City of Renton v. Playtime Theatres, Inc., 475 U.S. 41,106 S.Ct. 925,89 L.Ed.2d 29 (1986), laws aimed at controlling the secondary effects of adult businesses are deemed content neutral. See id. at 48-49, 106 S.Ct. 925. [FN9] FN9. It merits noting that in the Supreme Court's most recent foray into the law of the First Amendment and secondary effects, City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 122 S.Ct. 1728, 152 L.Ed.2d 670 (2002), Justice Kennedy assailed this categorization as a "fiction," asserting that "whether a statute is content neutral or content based is something that can be determined on the face of it; if the statute describes speech by content then it is content based." Id. at 448, 122 S.Ct. 1728 (Kennedy, J., concurring). Nevertheless, Justice Kennedy ultimately agreed that a "zoning restriction that is designed to decrease secondary effects and not speech should be subject to intermediate rather than strict scrutiny," reasoning that "the zoning context provides a built-in legitimate rationale, which rebuts the usual presumption that content-based restrictions are unconstitutional." Id. at 448-49,122 S.Ct. 1728; accordGM Enters., Inc. v. Town of St. Joseph, 350 F.3d 631,637 (7th Cir.2003) ("In light of [Alameda Books ], we need not decide whether the ordinances are content based or content neutral, so long as we first conclude that they target not 'the activity, but ... its side effects,' and then apply intermediate scrutiny.' ") (citation omitted). Here, the challenged Ordinances are explicitly intended to combat the secondary effects of adult stores' speech, not to suppress the speech itself. The district court ruled that the purpose of the Ordinances is to regulate the harmful secondary effects associated with sexually oriented businesses. World Wide Video of Washington, Inc. v. City of Spokane, 221 F.Supp.2d 1143, 1150-51 (E.D.Wash.2002). The summary judgment record permits no other conclusion as to the purpose of the Ordinances. See e.g., Ordinance C-33001, Preamble/Findings, (4)(k) ("It is not the intent of the proposed zoning provisions to suppress any speech activities protected by the First Amendment..., but to propose content neutral legislation which addresses the negative secondary impacts of adult retail use and entertainment establishments [.]"). Accordingly, we apply intermediate *1192 scrutiny. See Renton, 475 U.S. at 49, 106 S.Ct. 925. B [2] An ordinance aimed at combating the secondary effects of a particular type of speech survives intermediate scrutiny "if it is designed to serve a substantial government interest, is narrowly tailored to serve that interest, and does not unreasonably limit alternative avenues of communication." Center for Fair Pub. Policy v. Maricopa County, 336 F.3d 1153, 1166 (9th Cir.2003) (citing Renton, 475 U.S. at 50,106 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570,2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 6 S.Ct. 925 and Colacurcio v. City of Kent, 163 F.3d 545, 551 (9th Cir.1998)), cert, denied, 124 S.Ct. 1879 (2004). World Wide does not appeal the district court's determination that the Ordinances leave open adequate alternative avenues of communication. The issue before us is thus limited to whether the Ordinances are narrowly tailored to serve a substantial government interest. In Alameda Books, the Supreme Court "clarified] the [Renton ] standard for determining whether an [adult-use] ordinance serves a substantial government interest." 535 U.S. at 433, 122 S.Ct. 1728 (plurality opinion). Thus, the proper starting point for evaluating World Wide's appeal is close consideration of Renton and Alameda Books. Our analysis is also informed by Maricopa County, this court's sole interpretation and application of the Renton I Alameda Books standard to date. 1 The challenged ordinance in Renton prohibited adult movie theaters from locating within 1,000 feet of various zones, such as those intended for schools and churches. An adult theater owner sued, arguing, inter alia, that because the City of Renton improperly relied on another city's experiences with the secondary effects of adult theaters rather than undertaking its own study, the city had failed to establish that its ordinance served a substantial government interest. Renton, 475 U.S. at 50, 106 S.Ct. 925. We agreed and held in favor of the theater owner, but the Supreme Court reversed. Noting that "a city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect," the Court concluded that we had imposed "an unnecessarily rigid burden of proof." Id. (internal quotation marks omitted). The Court held that "[t]he 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 the city addresses." Id. at 51-52, 106 S.Ct. 925. Like Renton, Alameda Books originated in this circuit. In 1977, the City of Los Angeles conducted a study to assess the secondary effects of adult land uses. See Alameda Books, 535 U.S. at 430, 122 S.Ct. 1728. Because that study discovered increased crime in areas with high concentrations of adult businesses, Los Angeles enacted an ordinance regulating their locations. See id. It soon came to light, however, that there was a loophole in the law: multiple adult businesses could congregate in a single building. See id. at 431,122 S.Ct. 1728. Accordingly, Los Angeles amended its ordinance to prohibit more than one adult business from operating under the same roof. See id. Two bookstores sued, alleging that the ordinance violated the First Amendment. See id. at 432, 122 S.Ct. 1728. The district court granted summary judgment in favor of the stores. See id. at 433, 122 S.Ct. 1728. We affirmed, concluding that Los Angeles "failed to present *1193 evidence upon which it could reasonably rely to demonstrate that its regulation of multiple-use establishments [was] designed to serve the city's substantial interest in reducing crime." Id. (internal quotation marks omitted). In the Supreme Court, Alameda Books produced four opinions: a plurality opinion by Justice O'Connor (joined by the Chief Justice, Justice Scalia, and Justice Thomas), a brief concurring statement by Justice Scalia, a concurrence in the judgment by Justice Kennedy, and a dissent by Justice Souter (joined by Justices Stevens and Ginsburg and joined in part by Justice Breyer). A five justice majority—the plurality plus Justice Kennedy—reversed our decision. Given the fractured nature of the Court's disposition, it is difficult to glean a precise holding from Alameda Books. However, under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977), since Justice Kennedys concurrence was the narrowest opinion joining the Court's judgment, it controls. See Maricopa County, 336F.3dat 1161; see also Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301,1310n. 19 (HthCir.2003); Ben's Bar, Inc. v. Vill. of Somerset, 316 F.3d 702,722 (7th Cir.2003). Thus, we are bound by the plurality opinion, but only insofar as its conclusions do not expand beyond Justice Kennedy's concurrence. All five Justices in the Alameda Books majority affirmed Renton's core principle that local governments are not required to conduct their own studies in order to justify an ordinance designed to combat the secondary Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page? effects of adult businesses. See Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728 (plurality opinion); id at 451,122 S.Ct. 1728 (Kennedy, J., concurring). Further, the majority of the Court stressed the paramount role of local experimentation in developing legislative responses to secondary effects, given local governments' superior understanding of their own problems. See id at 440, 122 S.Ct. 1728 (plurality opinion) ("[W]e must acknowledge that the Los Angeles City Council is in a better position than the Judiciary to gather and evaluate data on local problems."); id at 451-52, 122 S.Ct. 1728 (Kennedy, J., concurring) ("The Los Angeles City Council knows the streets of Los Angeles better than we do. It is entitled to rely on that knowledge; and if its inferences appear reasonable, we should not say there is no basis for its conclusion.") (citations omitted). Most importantly, Justice Kennedy did not disagree with the key innovation announced by the Alameda Books plurality. To wit: The municipality's evidence must fairly support the municipality's rationale for its ordinance. If plaintiffs fail to cast direct doubt on this rationale, either by demonstrating that the municipality's evidence does not support its rationale or by furnishing evidence that disputes the municipality's factual findings, the municipality meets the standard set forth in Renton. If plaintiffs succeed in casting doubt on a municipality's rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance. Id at 438-39, 122 S.Ct. 1728 (plurality opinion). Announcement of this burden shifting approach fulfilled the Alameda Books Court's stated intention in granting certiorari: it "clarif[ied] the standard for determining whether an ordinance serves a substantial government interest." Id at 433, 122 S.Ct. 1728. At its heart, the limiting principle that Justice Kennedy's concurrence imposes on the plurality opinion concerns the importance of determining and evaluating a *1194 city's "rationale" behind a particular ordinance. While Justice Kennedy did not dispute the plurality's burden-shifting gloss on Renton, he stressed that a city s rationale for passing an ordinance aimed at controlling the secondary effects of adult stores "cannot be that when [the ordinance] requires businesses to disperse (or to concentrate), it will force the closure of a number of those businesses, thereby reducing the quantity of protected speech." Maricopa County, 336 F.3d at 1163. Justice Kennedy thus concurred with the Alameda Books plurality with the following cautionary caveat: "It is no trick to reduce secondary effects by reducing speech or its audience; but a city may not attack secondary effects indirectly by attacking speech." 535 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., concurring). A secondary-effects ordinance must be designed to leave "the quantity of speech ... substantially undiminished, and [the] total secondary effects ... significantly reduced." Id at 451, 122 S.Ct. 1728. Our recent decision in Maricopa County differs slightly from the case before us in that it concerned the constitutionality of a "time" rather than a "place" restriction on adult businesses. See 336 F.3d at 1159. In Maricopa County, operators of a variety of adult businesses, including "sellers of sexually-related magazines and paraphernalia," id. at 1158, challenged an Arizona statute that prohibited them from operating in the early morning hours. The district court upheld the statute and the businesses appealed. Applying Alameda Books—which we described as "reaffirm[ing] the Renton framework," id at 1159—a divided panel of this court affirmed. [FN10] FN10. In dissent, Judge Canby opined that Arizona's statute could not survive Justice Kennedys requirement that the quantity of speech remain undiminished because it required adult businesses to close down during certain parts of the day—i.e., it stopped speech—unlike a "dispersal" regulation, which merely moves speech. Maricopa County, 336 F.3d at 1172 (Canby, J., dissenting). Spokane's Ordinances are dispersal ordinances; consequently, Judge Canbys concern does not arise here. As in the instant case, the legislative record in Maricopa County included both documentary and testimonial evidence. See id. at 1157. For example, the Arizona legislature heard testimony describing problems with pornographic litter and prostitution related to the operation of adult businesses adjacent to a residential area. Id. at 1157-58. The Maricopa County legislative record also included letters discussing reports detailing similar problems in Denver Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570,2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 8 and Minnesota. Id. at 1158. We concluded that the state provided a sufficient basis for the challenged statute, noting that the evidence was "hardly overwhelming, but it does not have to be." Id. at 1168. Because the Arizona legislature relied on evidence "reasonably believed to be relevant" to the targeted problem, we determined that the statute was presumptively constitutional. Id. Having made this determination, we continued: "Under Alameda Books, the burden now shifts to [the businesses] to cast direct doubt on [the state's] rationale, either by demonstrating that the [state's] evidence does not support its rationale or by furnishing evidence that disputes the[state's] factual findings." Id. (internal quotation marks omitted; first alteration added). Essentially, the Maricopa County businesses argued that "the evidence before the Arizona legislature consisted of 'irrelevant anecdotes' and 'isolated' incidents, and that testimonial evidence is not 'real' evidence." Id. Rejecting this contention as explicitly foreclosed by Alameda Books, we concluded that the businesses had "failed to cast doubt on the state's *1195 theory, or on the evidence the state relied on in support of that theory," and affirmed the district court's decision upholding the statute. Id. [3] Like the statute challenged in Maricopa County, Spokane's Ordinances satisfy the Renton standard as clarified in Alameda Books. We hold that the Ordinances are narrowly tailored to serve Spokane's substantial interest in reducing the undesirable secondary effects of adult stores. 1 Turning first to the substantial interest issue, per Justice Kennedys Alameda Books concurrence, the initial question is "how speech will fare" under the Ordinances. 535 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., concurring); see also R. V.S., L.L.C. v. City ofRockford, 361 F.3d 402, 408 (7th Cir.2004) (noting that under Justice Kennedys Alameda Books concurrence "[i]t is essential... to consider the impact or effect that the ordinance will have on speech"). Conceptually, this question dovetails with the requirement that an ordinance must leave open adequate alternative avenues of communication. Again, World Wide does not appeal the district court's conclusion that the Ordinances left open sufficient relocation sites. Given that each of the six remaining affected stores has the opportunity to relocate, it is likely that the Ordinances will reduce secondary effects—by moving the stores from sensitive areas-without substantially reducing speech by forcing stores to close. See Alameda Books, 535 U.S. at 450, 122 S.Ct. 1728 (Kennedy, J., concurring). The next step is to determine whether the Ordinances survive the burden-shifting regime announced by the Alameda Books plurality. They do. World Wide does not contend that Spokane failed to satisfy its initial burden of producing evidence that "fairly supports" the Ordinances. Rather, World Wide argues that when it provided contrary evidence the burden shifted back to Spokane, and the City failed to supplement the record. However, in order to shift the burden back to Spokane, World Wide was required to succeed in "cast[ing] direct doubt" on the rationale behind the Ordinances, either by showing that the Citys evidence does not support it or by supplying its own contrary "actual and convincing evidence." Id at 438-39, 122 S.Ct. 1728 (plurality opinion) (emphasis added). Like the businesses in Maricopa County, World Wide failed to satisfy this requirement. World Wide's arguments and evidence against the Ordinances were insufficient to trigger the burden shifting contemplated in Alameda Books. [4] We reach this conclusion primarily because World Wide did not effectively controvert much of Spokane's evidence through McLaughlin's report or otherwise. In holding that the Ordinances promoted a substantial governmental interest, the district court stressed that Spokane only needed " 'some' evidence to support its Ordinances," and correctly concluded that the "elimination of pornographic litter, by itself, represents a substantial governmental interest, especially as concerns protection of minors." World Wide Video, 227 F.Supp.2d at 1157-58. The citizen testimony concerning pornographic litter and public lewdness, standing alone, was sufficient to satisfy the "very little" evidence standard of Alameda Books, 535 U.S. at 451, 122 S.Ct. 1728 (Kennedy, J., concurring) (citing Renton, 475 U.S. at 51-52, 106 S.Ct. 925). Accord Maricopa County, 336 F.3d at 1168; cf. Stringfellow's ofN.Y., Ltd. v. City of New York, 91 N.Y.2d 382,400, 671 N.Y.S.2d 406, 694 N.E.2d 407, 417 (N.Y.1998) ("[AJnecdotal evidence and reported experience can be as telling as statistical *1196 data and can serve as a legitimate basis for finding negative secondary Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 9 effects...."). [FN11] FN11. In Tollis Inc. v. San Bernardino County, 827 F.2d 1329 (9th Cir.1987), San Bernardino County determined that a single showing of an adult movie was sufficient to subject a theater to regulation under an adult-use zoning ordinance. Id. at 1331. Because the County "presented no evidence that a single showing of an adult movie would have any harmful secondary effects on the community," id. at 1333 (emphasis added), we affirmed an injunction against enforcement of the ordinance. Although Tollis predates Alameda Books, the decisions are consistent; the principle remains that a local government must reasonably rely on at least some evidence. Here, Spokane clearly satisfied this requirement. The relevant question is "whether the municipality can demonstrate a connection between the speech regulated by the ordinance and the secondary effects that motivated the adoption of the ordinance." Alameda Books, 535 U.S. at 441, 122 S.Ct. 1728 (plurality opinion). Here, the protected speech and the secondary effects described in the citizen testimony are inexorably intertwined: the sexual images in the magazines and on the packaging of the videos sold by adult stores may be protected, but if the stores' products are consistently discarded on public ground, municipal regulation may be—and, in this case, is-justified. Our conclusion concerning the nature of the post-Alameda Books evidentiary burden is in line with the weight of federal authority. For example, in SOB, Inc. v. County ofBenton, 317 F.3d 856 (8th Cir.), cert, denied, — U.S. —, 124 S.Ct. 104, 157 L.Ed.2d 38 (2003), the Eighth Circuit noted that the adult business's evidence in opposition to Benton County's zoning regulations addressed only two adverse secondary effects, property values and crime in the vicinity of an adult entertainment establishment.... [The challenged ordinance], on the other hand, may address other adverse secondary effects, such as the likelihood that an establishment whose dancers and customers routinely violate long-established standards of public decency will foster illegal activity such as drug use, prostitution, tax evasion, and fraud. Id. at 863. Just so here. Granted, the evidence tendered by World Wide in opposition to Spokane's motion for summary judgment purported to contradict some of the City's secondary effects evidence. Again, however, World Wide failed to present an effective rebuttal to an entire category of evidence: the public testimony. World Wide attempted to counter the citizens' stories by charging bias. However, this tactic is insufficient to defeat summary judgment. See Nat'I Union Fire Ins. Co. v. Argonaut Ins. Co., 701 F.2d95, 97 (9th Cir. 1983). This failure to cast doubt on Spokane's justification for the Ordinances dooms World Wide's challenge. [5] We also conclude that the Ordinances are narrowly tailored. A law is narrowly tailored if it "promotes a substantial government interest that would be achieved less effectively absent the regulation." *1197 United States v. Albertini, 472 U.S. 675,689,105 S.Ct. 2897, 86 L.Ed.2d 536 (1985); accord Wardv. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). Here, as wMaricopa County, it is self-evident that Spokane's asserted interest would be achieved less effectively absent the Ordinances. See 336F.3datll69. The crux of World Wide's argument is that, because Spokane's studies do not deal exclusively with retail-only stores, the City impermissibly relied on "shoddy data[and] reasoning" to justify the Ordinances. Alameda Books, 535 U.S. at 438, 122 S.Ct. 1728 (plurality opinion). World Wide relies principally on Encore Videos, Inc. v. City of San Antonio, 330 F.3d 288 (5th Cir.) (per curiam), cert, denied, — U.S. —, 124 S.Ct. 466, 157 L.Ed.2d 372 (2003), to support its argument. The Encore Videos court, noting that "[a] time, place, and manner regulation meets the narrow tailoring standard if it 'targets and eliminates no more than the exact source of the evil it seeks to remedy,'" id. at 293 (quoting Frisby v. Schultz, 487 U.S. 474,485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988)), found San Antonio's re-zoning of adult stores unconstitutional because the studies on which the city relied "either entirely exclude[d] establishments that provide only take-home videos and books ... or include[d] them but [did] not differentiate the data collected from such businesses from evidence collected from enterprises that provide on-site adult entertainment," id. at 294-95. [FN12] Hoping to repeat Encore Videos' success, World Wide presented the district court with an Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 10 extensive study concluding that problems with increased crime rates and decreased property value were limited to the neighborhood around a store that has preview booths for on-site viewing. FN12. The Fifth Circuit recently clarified its Encore Videos opinion, stating that "the ordinance at issue was found not to be narrowly tailored because of both its failure to make an on-site/off-site distinction and its low 20% inventory requirement [i.e., the fact that it covered all stores with at least 20% 'adult' merchandise]." Encore Videos, Inc. v. City of San Antonio, 352 F.3d 938, 939 (5th Cir.2003) (emphasis added). [6] Notwithstanding its proffer, World Wide's reliance on Encore Videos is misplaced. In Encore Videos, San Antonio apparently relied only on other cities' studies to justify its ordinance. See id. at 295. Here, Spokane relied on a wide variety of evidence, including studies, police records, and citizen testimony. Further, in this case we can assume, but need not decide, that the distinction between retail-only stores and stores with preview booths is constitutionally relevant. The Ordinances still survive World Wide's challenge because much of the citizen testimony concerned retail-only stores. To take just one example, a pedodontist working in a building less than a block away from a retail-only store complained of pornographic litter, harassment of female employees, vandalism, and decreased business, all resulting from his proximity to the retail-only store. As Maricopa County teaches, World Wide's claim that citizen complaints such as these are biased and unscientific is insufficient to cast direct doubt on the Spokane's testimonial evidence. Maricopa County, 336 F.3d at 1168 (rejecting the plaintiffs argument "that testimonial evidence is not 'real' evidence"). Among the secondary effects that Spokane sought to curb by enacting the Ordinances are the "economic and aesthetic impacts upon neighboring properties and the community as a whole." Ordinance C-33001, pmbl. at 3. Through testimonial evidence, Spokane has shown that retail-only stores generate these secondary effects and therefore that its interests in enacting *1198 the Ordinances "would be achieved less effectively absent the regulation." Albertini, 472 U.S. at 689, 105 S.Ct. 2897. World Wide has offered no evidence that meaningfully challenges that conclusion. We thus conclude that the Ordinances are narrowly tailored. D In sum, Alameda Books "does not affect [a municipality's] ability to rely on secondary effects studies and certainly does not mandate a trial in every case where a municipality does so." Bigg Wolf Disc. Video Movie Sales, Inc. v. Montgomery County, 256 F.Supp.2d 385, 393-94 (D.Md.2003). The evidence relied on by Spokane "is both reasonable and relevant," Maricopa County, 336 F.3d at 1168, and the City's regulatory regime "is likely to cause a significant decrease in secondary effects" at the cost of "a trivial decrease in the quantity of speech," Alameda Books, 535 U.S. at 445, 122 S.Ct. 1728 (Kennedy, J., concurring). Therefore, we hold that Spokane's reliance on this evidence was proper and that the Ordinances are narrowly tailored to address the City's legitimate concerns. Ill [7] We must next decide whether the amended Code—specifically, the language added by Ordinance C-32778-is overbroad. [FN13] Because "the First Amendment needs breathing space ... [,] statutes attempting to restrict or burden the exercise of First Amendment rights must be narrowly drawn and represent a considered legislative judgment that a particular mode of expression has to give way to other compelling needs of society." Broadrickv. Oklahoma, 413 U.S. 601, 611-12, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). Nonetheless, the Supreme Court has "repeatedly emphasized that where a statute regulates expressive conduct, the scope of the statute does not render it unconstitutional unless its overbreadth is not only real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Osbornev. Ohio, 495 U.S. 103, 112, 110 S.Ct. 1691, 109 L.Ed.2d 98 (1990) (internal quotation marks omitted); see also United States v. Adams, 343 F.3d 1024, 1034 (9th Cir.2003), cert, denied, — U.S. —-, 124 S.Ct. 2871, — L.Ed.2d — (2004) (No. 03-9072). FN13. World Wide waived its claim that Ordinance C-32778'sdefinitionof "adult retail establishment" is unconstitutionally vague by failing to present it to the district court. See United States v. Flores-Payon, 942 F.2d 556, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570,2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 11 558 (9th Cir.1991). This is not a purely legal issue. Had World Wide raised it below, Spokane could have presented evidence in support of its position that the definition is sufficiently precise. Cf. id. (noting that an argument not presented to the district court can still be raised on appeal under certain limited circumstances, including when "the issue presented is purely one of law and the opposing party will suffer no prejudice as a result of the failure to raise the issue in the trial court") (internal quotation marks omitted). Spokane defines an "adult retail establishment" as an enclosed building, or any portion thereof which, for money or any other form of consideration, devotes a significant or substantial portion of its stock in trade, to the sale, exchange, rental, loan, trade, transfer, or viewing of "adult oriented merchandise". SMC §11.19.03023(A). World Wide claims that this definition is unconstitutional on its face. We disagree. Cases directly addressing the phrase "significant or substantial" in this context have upheld its validity. See, e.g., Young v. Am. Mini Theatres, Inc., 427 U.S. 50, 53 n. 5, 96 S.Ct. 2440, 49 L.Ed.2d 310 (1976); Alameda Books, 535 U.S. at 431, 122 S.Ct. 1728. Moreover, this phrase is readily *1199 susceptible to a narrowing construction. "[LJanguage similar to the 'significant or substantial' language used in this ordinance has been interpreted previously by state courts in a sufficiently narrow manner to avoid constitutional problems." Z.J. Gifts D-4, L.L.C. v. City of Littleton, 311 F.3d 1220, 1229 (10th Cir.2002) (collecting cases), cert, granted in part, — U.S. —, 124 S.Ct. 383,157 L.Ed.2d 274 (2003). We agree and hold that the inclusion of this phrase in Ordinance C-32778 does not render it unconstitutionally overbroad. World Wide also takes issue with Spokane's "any portion thereof wording, arguing that as a result of its inclusion the ordinance covers any store with a "portion" that is "significantly" or "substantially" comprised of adult materials. For example, under World Wide's interpretation, a store with a rack of postcards comprising 1% of its stock, 5% of which qualifies as adult material, would fall under the purview of Ordinance C-32778. We read this ordinance differently. The "any portion thereof clause plainly means that the ordinance is intended to cover stores that occupy only a portion of an enclosed building—e.g., one store in a shopping mall—as distinct from the entire building. This language has nothing to do with the determination whether adult material constitutes a "significant or substantial" portion of a store's stock. [FN14] FN14. World Wide relies on Executive Arts Studio, Inc. v. City of Grand Rapids, 227 F.Supp.2d 731 (W.D.Mich.2002), where the court found overbroad an ordinance that encompassed stores with a "section or segment" of sexually-explicit magazines. See id. at 748. However, that holding was based on a state court's refusal to adopt a limiting construction. See id. No Washington state court has so construed Ordinance C-32778. Accordingly, mindful that the facial overbreadth doctrine is "strong medicine" that should be employed "sparingly and only as a last resort," Broadrick, 413 U.S. at 613,93 S.Ct. 2908, we affirm the district court's rejection of World Wide's claim that Ordinance C-32778 is overbroad. IV [8] The final issue before us is the adequacy of the amortization provision. This provision reads, in pertinent part: "Any adult retail use establishment located within the City of Spokane on the date this provision becomes effective, which is made a nonconforming use by this provision, shall be terminated within twelve (12) months of the date this provision becomes effective." SMC § 11.19.395. The Ordinance allows for the extension of a business's termination date "upon the approval of a written application filed with the Planning Director no later than [one] (1) month prior to the end of such twelve (12) month amortization period." Id. Although World Wide applied for and was granted a six-month extension, and received an extra two months via administrative grace, it claims that we should remand for trial because there remains a question of fact whether its hardship outweighs the benefit to the public to be gained from termination of the non-conforming use. See Ebel v. City of Corona, 767 F.2d 635, 639 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 368 F.3d 1186 368 F.3d 1186,4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 (Cite as: 368 F.3d 1186) Page 12 (9th Cir. 1985) (per curiam) (adopting the balancing test set oul in Northend Cinema, Inc. v. City of Seattle, 585 P.2d 1153,1159-60 (Wash. 1978)). Given the length of its leases and various other alleged impediments to relocation— e.g., restrictive covenants, the unwillingness of landlords to rent or sell to an adult store, and the prohibitive cost-World Wide claims that it can prevail under Ebel's balancing test. [9] We are not convinced. Nothing in the Constitution forbids municipalities from requiring non-conforming uses to close, change their business, or relocate *1200 within a reasonable time period. Here, as in Baby Tarn & Co. v. City of Las Vegas, 247 F.3d 1003 (9th Cir.2001), World Wide "furnishes no authority for the proposition that a zoning ordinance may not prohibit a use in existence before its enactment," id. at 1006. As a general matter, an amortization period is insufficient only if it puts a business in an impossible position due to a shortage of relocation sites. This issue is conceptually indistinguishable from the First Amendment requirement of alternative avenues of communication. See Jake's, Ltd. v. CityofCoates, 284 F.3d 884,889 (8th Cir.) (holding that application of an amortization provision is constitutional as long as it complies vriihRenton), cert, denied, 537 U.S. 948,123 S.Ct. 413, 154 L.Ed.2d 292 (2002). Because the district court held that there are sufficient relocation sites in Spokane and World Wide does not appeal that factual determination, we hold that the amortization provision is not unconstitutional. Finally, in attempting to extend its right to operate at its present locations, World Wide was afforded~and has availed itself of-the full panoply of due process rights. World Wide requested an extension and received eight months; it appealed this decision to Spokane's Hearing Examiner, claiming the extension was too short, and lost. World Wide then filed a land use action in Spokane County Superior Court challenging the denial of its amortization appeal. We conclude that World Wide received all the process it was due. V As conceded by World Wide, municipalities are allowed to "keep the pig out of the parlor" by devising regulations that target the adverse secondary effects of sexually-oriented adult businesses. This is precisely what Spokane did when it enacted the Ordinances. The district court properly entered summary judgment upholding them. AFFIRMED. 368 F.3d 1186, 4 Cal. Daily Op. Serv. 4570, 2004 Daily Journal D.A.R. 8411 Briefs and Other Related Documents (Back to top) • 2003 WL 22593818 (Appellate Brief) Appellant's Reply Brief (Apr. 03, 2003)Original Image of this Document (PDF) • 2003 WL 22593817 (Appellate Brief) Brief of Appellee (Mar. 20, 2003)Original Image of this Document (PDF) • 2003 WL 22593816 (Appellate Brief) Appellant's Opening Brief (Feb. 04, 2003)Original Image of this Document with Appendix (PDF) • 02-35936 Docket) (Oct. 09, 2002) END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works 48 Page 1 Copr. © West 2000 No Claim to Orig. U.S. Govt. Works 96 S.Ct. 2440 49 L.Ed.2d 310, 1 Media L. Rep. 1151 (Cite as: 427 U.S. 50, 96 S.Ct. 2440) Supreme Court of the United States Coleman A. YOUNG, Mayor the City of Detroit, et al., Petitioners, v. AMERICAN MINI THEATRES, INC., et al. No. 75-312. Argued March 24, 1976. Decided June 24, 1976. Rehearing Denied Oct. 4, 1976. See 429 U.S. 873, 97 S.Ct. 191. The operator of an "adult" movie theater appealed from a ruling of the United States District Court for the Eastern District of Michigan, Southern Division, 373 F.Supp. 363, upholding the validity of Detroit ordinances prohibiting operation of any "adult" movie theater, bookstore and similar establishments within 1000 feet of any other such establishment, or within 500 feet of a residential area. The Court of Appeals, Sixth Circuit, reversed, 518 F.2d 1014. Following grant of certiorari, the Supreme Court, Mr. Justice Stevens, held that where theaters proposed to offer adult fare on regular basis and alleged that they admitted only adult patrons, and neither indicated any plan to exhibit pictures even arguably outside coverage of the ordinances, so that theaters were not affected by alleged vagueness, their challenge to ordinances on ground of alleged vagueness resulting in inadequate notice of what was prohibited would not be considered though ordinances affected communication protected by First Amendment. The ordinances were not violative of First Amendment rights or of the equal protection clause of the Fourteenth Amendment. Judgment of Court of Appeals reversed. Mr. Justice Powell filed an opinion concurring in part. Mr. Justice Stewart dissented and filed opinion in which Mr. Justice Brennan, Mr. Justice Marshall and Mr. Justice Blackmun joined. Mr. Justice Blackmun dissented and filed opinion in which Mr. Justice Brennan, Mr. Justice Stewart and Mr. Justice Marshall joined. West Headnotes [1] Municipal Corporations k!21 268kl21 Where theaters proposed to offer adult fare on regular basis and alleged that they admitted only adult patrons, and neither indicated any plan to exhibit pictures even arguably outside coverage of municipal ordinances, so that theaters were not affected by alleged vagueness, their challenge to ordinances on ground of alleged vagueness resulting in inadequate notice of what was prohibited would not be considered though ordinances affected communication protected by First Amendment. U.S.C.A.Const. Amends. 1, 14. [2] Constitutional Law k42(l) 92k42(l) Where very existence of statute may cause persons not before court to refrain from engaging in constitutionally protected speech or expression, exception, in allowing litigant to assert rights of third parties, is justified by overriding importance of maintaining free and open market for interchange of ideas, but if deterrent effect of statute on legitimate expression is not both real and substantial and if statute is readily subject to narrowing construction by state courts, litigant is not permitted to assert rights of third parties. U.S.C.A.Const. Amends. 1, 14. [3] Constitutional Law k46(l) 92k46(l) There being less vital interest in uninhibited exhibition of material on borderline between pornography and artistic expression than in free dissemination of ideas of social and political Page 2 significance, and where limited amount of uncertainty in ordinances was easily susceptible of narrowing construction, case was inappropriate one in which to adjudicate hypothetical claims of persons not before the court. U.S.C.A.Const. Amends. 1, 14. [4] Zoning and Planning k76 414k76 Municipality may control location of theaters as well as location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. U.S.C.A.Const. Amend. 1. [5] Constitutional Law k90.1(4) 92k90.1(4) Mere fact that commercial exploitation of material protected by First Amendment was subjected to zoning and other licensing requirements was not sufficient reason for invalidating city ordinances as prior restraints on free speech. U.S.C.A.Const. Amend. 1. [6] Constitutional Law k90(3) 92k90(3) (Formerly 92k90.1(1)) Reasonable regulations of time, place and manner of protected speech, where those regulations are necessary to further significant governmental interests, are permitted by First Amendment. U.S.C.A.Const. Amend. 1. [7] Constitutional Law k90(3) 92k90(3) Question whether speech is, or is not, protected by First Amendment often depends on content of speech. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amend. 1. [8] Constitutional Law k90(3) 92k90(3) Even within area of protected speech, difference in content may require a different governmental response. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amends. 1,14. [9] Constitutional Law k90(3) 92k90(3) General rule prohibits regulation based on content of protected communication, and essence of rule is need for absolute neutrality by government; its regulation of communication may not be affected by sympathy or hostility for point of view being expressed by communicator. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amends. 1, 14. [10] Constitutional Law k90.2 92k90.2 (Formerly 92k90.1(1)) Measure of constitutional protection to be afforded commercial speech will surely be governed largely by content of communication; difference between commercial price and product advertising and ideological communication permits regulation of former that First Amendment would not tolerate with respect to latter. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amends. 1, 14. [11] Constitutional Law k90.4(4) 92k90.4(4) (Formerly 92k90.1(6)) First Amendment protects communication, in area of motion picture films of sexual activities, from total suppression, but state may legitimately use contents of these materials as basis for placing them in different classification from other motion pictures. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amends. 1, 14. [12] Municipal Corporations k589 268k589 City must be allowed reasonable opportunity to experiment with solutions to admittedly serious problems. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amends. 1, 14. [13] Constitutional Law k228.2 92k228.2 In view of serious problems to which city's ordinances were addressed, in view of district court's finding that burden on First Amendment rights from enforcement of ordinances would be slight, and in view of factual basis, disclosed by record, for common council's conclusion that restriction imposed would have desired effect, Page 3 city's interest in present and future character of its neighborhoods supported its classification of motion pictures, and, accordingly, zoning ordinances providing that adult motion picture theaters not be located within 1000 feet of two other regulated uses or within 500 feet of a residential area did not violate equal protection clause of Fourteenth Amendment. (Per Mr. Justice Stevens with three Justices concurring.) U.S.C.A.Const. Amends. 1, 14. **2442 Syllabus [FN*] FN* The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50 L.Ed. 499. *50 Respondent operators of two adult motion picture theaters brought this action against petitioner city officials for injunctive relief and a declaratory judgment of unconstitutionality regarding two 1972 Detroit zoning ordinances that amended an "Anti-Skid Row Ordinance" adopted 10 years earlier. The 1972 ordinances provide that an adult theater may not (apart from a special waiver) be located within 1,000 feet of any two other "regulated uses" or within 500 feet of a residential area. The term "regulated uses" applies to 10 different kinds of establishments in addition to adult theaters, including adult book stores, cabarets, bars, taxi dance halls, and hotels. If the theater is used to present "material distinguished or characterized by an emphasis on matter depicting ... 'Specified Sexual Activities' or 'Specified Anatomical Areas' " it is an "adult" establishment. The District Court upheld the ordinances, and granted petitioners' motion for summary judgment. The Court of Appeals **2443 reversed, holding that the ordinances constituted a prior restraint on constitutionally protected communication and violated equal protection. Respondents, in addition to asserting the correctness of that court's ruling with respect to those constitutional issues, contend that the ordinances are void for vagueness. While not attacking the specificity of the definitions of sexual activities or anatomical areas, respondents maintain (1) that they cannot determine how much of the described activity may be permissible before an exhibition is "characterized by an emphasis" on such matter, and (2) that the ordinances do not specify adequate procedures or standards for obtaining a waiver of the 1,000-foot restriction. Held: 1. The ordinances as applied to these respondents do not violate the Due Process Clause of the Fourteenth Amendment on the ground of vagueness. Pp. 2446-2448. (a) Neither of the asserted elements of vagueness has affected these respondents, both of which propose to offer adult fare on a regular basis and allege no ground for claiming or anticipating any waiver of the 1,000-foot restriction. P. 2446. *51 (b) T ordinances will have no demonstrably significant effect on the exhibition of films protected by the First Amendment. To the extent that any area of doubt exists as to the amount of sexually explicit activity that may be portrayed before material can be said to be "characterized by an emphasis" on such matter, there is no reason why the ordinances are not "readily subject to a narrowing construction by the state courts." This would therefore be an inappropriate case to apply the principle urged by respondents that they be permitted to challenge the ordinances, not because their own rights of free expression are violated, but because of the assumption that the ordinances' very existence may cause others not before the court to refrain from constitutionally protected speech or expression. Pp. 2446-2448. 2. The ordinances are not invalid under the First Amendment as prior restraints on protected communication because of the licensing or zoning requirements. Though adult films may be exhibited commercially only in licensed theaters, that is also true of all films. That the place where films may be exhibited is regulated does not violate free expression, the city's interest in planning and regulating the use of property for commercial purposes being clearly adequate to support the locational restriction. P. 2448. 518 F.2d 1014, reversed. Maureen P. Reilly, Detroit, Mich., for petitioners. Stephen M. Taylor, Detroit, Mich., and John H. Weston for respondents. *52 Mr. Justice STEVENS delivered the opinion of the Court. [FN*] FN** Part III of this opinion is joined by Page 4 only THE CHIEF JUSTICE, Mr. Justice WHITE, and Mr. Justice REHNQUIST. Zoning ordinances adopted by the city of Detroit differentiate between motion picture theaters which exhibit sexually explicit "adult" movies and those which do not. The principal question presented by this case is whether that statutory classification is unconstitutional because it is based on the content of communication protected by the First Amendment. [FN1] FN1. "Congress shall make no law . . . abridging the freedom of speech, or of the press . . . ." This Amendment is made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697. Effective November 2, 1972, Detroit adopted the ordinances challenged in this litigation. Instead of concentrating "adult" theaters in limited zones, these ordinances require that such theaters be dispersed. Specifically, an adult theater may-not be located within 1,000 feet of any two other **2444 "regulated uses" or within 500 feet of a residential area. [FN2] The term "regulated uses" includes 10 different kinds of establishments in addition to adult theaters. [FN3] FN2. The District Court held that the original form of the 500-foot restriction was invalid because it was measured from "any building containing a residential, dwelling or rooming unit." The city did not appeal from that ruling, but adopted an amendment prohibiting the operation of an adult theater within 500 feet of any area zoned for residential use. The amended restriction is not directly challenged in this litigation. FN3. In addition to adult motion picture theaters and "mini" theaters, which contain less than 50 seats, the regulated uses include adult bookstores; cabarets (group "D"); establishments for the sale of beer or intoxicating liquor for consumption on the premises; hotels or motels; pawnshops; pool or billiard halls; public lodging houses; secondhand stores; shoeshine parlors; and taxi dance halls. *53 The classification of a theater as "adult" is expressly predicated on the character of the motion pictures which it exhibits. If the theater is used to present "material distinguished or characterized by an emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas,' " [FN4] it is an adult establishment. [FN5] FN4. These terms are defined as follows: "For the purpose of this Section, 'Specified Sexual Activities' is defined as: "1. Human Genitals in a state of sexual stimulation or arousal; "2. Acts of human masturbation, sexual intercourse or sodomy; "3. Fondling or other erotic touching of human genitals, pubic region, buttock or female breast. "And 'Specified Anatomical Areas' is defined as: " 1. Less than completely and opaquely covered: (a) human genitals, pubic region, (b) buttock, and (c) female breast below a point immediately above the top of the areola; and "2. Human male genitals in a discernibly turgid state, even if completely and opaquely covered." FN5. There are three types of adult establishments bookstores, motion picture theaters, and mini motion picture theaters defined respectively as follows: "Adult Book Store "An establishment having as a substantial or significant portion of its stock in trade, books, magazines, and other periodicals which are distinguished or characterized by their emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas,' (as defined below), or an establishment with a segment or section devoted to the sale or display of such material. "Adult Motion Picture Theater "An enclosed building with a capacity of 50 or more persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas,' (as defined below) for observation by patrons therein. PageS "Adult Mini Motion Picture Theater "An enclosed building with a capacity for less than 50 persons used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas,' (as defined below), for observation by patrons therein." *54 The 1972 ordinances were amendments to an "Anti-Skid Row Ordinance" which had been adopted 10 years earlier. At that time the Detroit Common Council made a finding that some uses of property are especially injurious to a neighborhood when they are concentrated in limited areas. [FN6] The decision to add adult motion picture theaters and adult book stores to the list of businesses which, apart from a special waiver, [FN7] **2445 could not be located within 1,000 feet of two other "regulated uses," was, in part, a response to the significant growth in the number *55 of such establishments. [FN8] In the opinion of urban planners and real estate experts who supported the ordinances, the location of several such businesses in the same neighborhood tends to attract an undesirable quantity and quality of transients, adversely affects property values, causes an increase in crime, especially prostitution, and encourages residents and businesses to move elsewhere. FN6. Section 66.000 of the Official Zoning Ordinance (1972) recited: "In the development and execution of this Ordinance, 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 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. These special regulations are itemized in this section. The primary control or regulation is for the purpose of preventing a concentration of these uses in any one area (i. e. not more than two such uses within one thousand feet of each other which would create such adverse effects)." FN7. The ordinance authorizes the Zoning Commission to waive the 1,000-foot restriction if it finds: "a) That the proposed use will not be contrary to the public interest or injurious to nearby properties, and that the spirit and intent of this Ordinance will be observed. "b) That the proposed use will not enlarge or encourage the development of a 'skid row' area, "c) That the establishment of an additional regulated use in the area will not be contrary to any program of neigh(bor)hopd conservation nor will it interfere with any program of urban renewal, "d) That all applicable regulations of this Ordinance will be observed." FN8. A police department memorandum addressed to the assistant corporation counsel stated that since 1967 there had been an increase in the number of adult theaters in Detroit from 2 to 25, and a comparable increase in the number of adult book stores and other "adult-type businesses." Respondents are the operators of two adult motion picture theaters. One, the Nortown, was an established theater which began to exhibit adult films in March 1973. The other, the Pussy Cat, was a corner gas station which was converted into a "mini theater," but denied a certificate of occupancy because of its plan to exhibit adult films. Both theaters were located within 1,000 feet of two other regulated uses and the Pussy Cat was less than 500 feet from a residential area. The respondents brought two separate actions against appropriate city officials, seeking a declaratory judgment that the ordinances were unconstitutional and an injunction against their enforcement. Federal jurisdiction was properly invoked [FN9] and the two cases were consolidated for decision. [FN10] FN9. Respondents alleged a claim for relief under 42 U.S.C. s 1983, invoking the jurisdiction of the federal court under 28 U.S.C. s 1343(3). FN10. Both cases were decided in a single opinion filed jointly by Judge Kennedy and Judge Gubow. Nortown Theatre v. Gribbs, 373 F.Supp. 363 (ED Mich. 1974). Page 6 The District Court granted defendants' motion for summary judgment. 373 F.Supp. 363. On the basis of the reasons stated *56 by the city for adopting the ordinances, the court concluded that they represented a rational attempt to preserve the city's neighborhoods. [FN11] The court analyzed and rejected respondents' argument that the definition and waiver provisions in the ordinances were impermissibly vague; it held that the disparate treatment of adult theaters and other theaters was justified by a compelling state interest and therefore did not violate the Equal Protection Clause; [FN12] and finally it concluded that the **2446 regulation of the places where adult films could be shown did not violate the First Amendment. [FN13] FN11. "When, as here, the City has stated a reason for adopting an ordinance which is a subject of legitimate concern, that statement of purpose is not subject to attack. "Nor may the Court substitute its judgment for that of the Common Council of the City of Detroit as to the methods adopted to deal with the City's legitimate concern to preserve neighborhoods, so long as there is some rational relationship between the objective of the Ordinance and the methods adopted." Id., at 367. FN12. "Because the Ordinances distinguish adult theatres and bookstores from ordinary theatres and bookstores on the basis of the content of their respective wares, the classification is one which restrains conduct protected by the First Amendment. See Interstate Circuit, Inc. v. Dallas, 390 U.S. 676, 88 S.Ct. 1298, 20 L.Ed.2d 225 (1968). The appropriate standard for reviewing the classification, therefore, is a test of close scrutiny. Harper v. Virginia Board of Elections, 383 U.S. 663, 670, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966); NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 9 L.Ed.2d 405 (1963). Under this test, the validity of the classification depends on whether it is necessary to further a compelling State interest. "The compelling State interest which the Defendants point to as justifying the restrictions on locations of adult theatres and bookstores is the preservation of neighborhoods, upon which adult establishments have been found to have a destructive impact. The affidavit of Dr. Mel Ravitz clearly establishes that the prohibition of more than one regulated use within 1000 feet is necessary to promote that interest. This provision therefore does not offend the equal protection clause." Id, at 369. FN13. "Applying those standards to the instant case, the power to license and zone businesses and prohibit their location in certain areas is clearly within the constitutional power of the City. The government interest, i. e. the preservation and stabilization of neighborhoods in the City of Detroit, is unrelated to the suppression of free expression. First Amendment rights are indirectly related, but only in the sense that they cannot be freely exercised in specific locations. Plaintiffs would not contend that they are entitled to operate a theatre or bookstore, which are commercial businesses, in a residentially zoned area; nor could they claim the right to put on a performance for profit in a public street. Admittedly the regulation here is more restrictive, but it is of the same character." Id., at 371. *57 The Court of Appeals reversed. American Mini Theatres, Inc. v. Gribbs, 518 F.2d 1014 (CA6 1975). The majority opinion concluded that the ordinances imposed a prior restraint on constitutionally protected communication and therefore "merely establishing that they were designed to serve a compelling public interest" provided an insufficient justification for a classification of motion picture theaters on the basis of the content of the materials they purvey to the public. [FN14] Relying primarily on Police Department of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, the court held the ordinance invalid under the Equal Protection Clause. Judge Celebrezze, in dissent, expressed *58 the opinion that the ordinance was a valid " 'time, place and manner' regulation," rather than a regulation of speech on the basis of its content. [FN15] FN14. "The City did not discharge its heavy burden of justifying the prior restraint which these ordinances undoubtedly impose by merely establishing that they were designed to Page? serve a compelling public interest. Since fundamental rights are involved, the City had the further burden of showing that the method which it chose to deal with the problem at hand was necessary and that its effect on protected rights was only incidental. The City could legally regulate movie theatres and bookstores under its police powers by providing that such establishments be operated only in particular areas. . . . However, this ordinance selects for special treatment particular business enterprises which fall within the general business classifications permissible under zoning laws and classifies them as regulated uses solely by reference to the content of the constitutionally protected materials which they purvey to the public." 518 F.2d, at 1019- 1020. FN15. He stated in part: "I do not view the 1000-foot provision as a regulation of speech on the basis of its content. Rather, it is a regulation of the right to locate a business based on the side-effects of its location. The interest in preserving neighborhoods is not a subterfuge for censorship." Id., at 1023. Because of the importance of the decision, we granted certiorari, 423 U.S. 911, 96 S.Ct. 214, 46 L.Ed.2d 139. As they did in the District Court, respondents contend (1) that the ordinances are so vague that they violate the Due Process Clause of the Fourteenth Amendment; (2) that they are invalid under the First Amendment as prior restraints on protected communication; and (3) that the classification of theaters on the basis of the content of their exhibitions violates the Equal Protection Clause of the Fourteenth Amendment. We consider their arguments in that order. I There are two parts to respondents' claim that the ordinances are too vague. They do not attack the specificity of the definition of "Specified Sexual Activities" or "Specified Anatomical Areas." They argue, however, that they cannot determine how much of the described activity may be permissible before the exhibition is "characterized by an emphasis" on such matter. In addition, they argue that the ordinances are vague because they do not specify adequate procedures or standards for obtaining a waiver of the 1,000-foot restriction. [1] We find it unnecessary to consider the validity of either of these arguments in the abstract. For even if there may be some uncertainty about the effect of the *59 ordinances on other litigants, they are unquestionably applicable to these respondents. The record indicates that both theaters **2447 propose to offer adult fare on a regular basis. [FN16] Neither respondent has alleged any basis for claiming or anticipating any waiver of the restriction as applied to its theater. It is clear, therefore, that any element of vagueness in these ordinances has not affected these respondents. To the extent that their challenge is predicated on inadequate notice resulting in a denial of procedural due process under the Fourteenth Amendment, it must be rejected. Cf. Parker v. Levy, 417 U.S. 733, 754-757, 94 S.Ct. 2547, 2560-2562, 41 L.Ed.2d 439. FN16. Both complaints allege that only adults are admitted to these theaters. Nortown expressly alleges that it "desires to continue exhibiting adult-type motion picture films at said theater." Neither respondent has indicated any plan to exhibit pictures even arguably outside the coverage of the ordinances. [2] Because the ordinances affect communication protected by the First Amendment, respondents argue that they may raise the vagueness issue even though there is no uncertainty about the impact of the ordinances on their own rights. On several occasions we have determined that a defendant whose own speech was unprotected had standing to challenge the constitutionality of a statute which purported to prohibit protected speech, or even speech arguably protected. [FN17] This exception *60 from traditional rules of standing to raise constitutional issues has reflected the Court's judgment that the very existence of some statutes may cause persons not before the Court to refrain from engaging in constitutionally protected speech or expression. See Broadrick v. Oklahoma, 413 U.S. 601, 611-614, 93 S.Ct. 2908, 2915-2917, 37 L.Ed.2d 830. The exception is justified by the overriding importance of maintaining a free and open market for the interchange of ideas. Nevertheless, if the statute's deterrent effect on legitimate expression is not "both real and substantial," and if the statute is "readily subject to a narrowing construction by the state courts," see Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 2276, 45 L.Ed.2d 125, the litigant is not permitted to assert the rights of third parties. FN17. "Such claims of facial overbreadth have been entertained in cases involving statutes which, by their terms, seek to regulate 'only spoken words.' Gooding v. Wilson, 405 U.S. 518, 520, 92 S.Ct. 1103, 1105, 31 L.Ed.2d 408 (1972). See Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). In such cases, it has been the judgment of this Court that the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of overly broad statutes. Overbreadth attacks have also been allowed where the Court thought rights of association were ensnared in statutes which, by their broad sweep, might result in burdening innocent associations. See Keyishian v. Board of Regents, 385 U.S. 589, 87 S.Ct. 675,17 L.Ed.2d 629 (1967); United States v. Robel, 389 U.S. 258, 88 S.Ct. 419, 19 L.Ed.2d 508 (1967); Aptheker v. Secretary of State, 378 U.S. 500, 84 S.Ct. 1659, 12 L.Ed.2d 992 (1964); Shelton v. Tucker (364 U.S. 479, 81 S.Ct. 247,5 L.Ed.2d231 (I960)). Facial overbreadth claims have also been entertained where statutes, by their terms, purport to regulate the time, place, and manner of expressive or communicative conduct, see Grayned v. City of Rockford, supra, 408 U.S., at 114-121, 92 S.Ct., at 2302-2306; Cameron v. Johnson, 390 U.S., at 617-619, 88 S.Ct., at 1338, 1339; Zwickler v. Koota, 389 U.S. 241, 249-250, 88 S.Ct. 391, 396-397, 19 L.Ed.2d 444 (1967); Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940), and where such conduct has required official approval under laws that delegated standardless Page8 discretionary power to local functionaries, resulting in virtually unreviewable prior restraints on First Amendment rights. See Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969); Cox v. Louisiana, 379 U.S. 536, 553-558, 85 S.Ct. 453, 463-466, 13 L.Ed.2d 471 (1965); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938)." Broadrick v. Oklahoma, 413 U.S. 601, 612-613, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830. [3] We are not persuaded that the Detroit zoning ordinances will have a significant deterrent effect on the exhibition of films protected by the First Amendment. *61 As already noted, the only vagueness in the **2448 ordinances relates to the amount of sexually explicit activity that may be portrayed before the material can be said to "characterized by an emphasis" on such matter. For most films the question will be readily answerable; to the extent that an area of doubt exists, we see no reason why the ordinances are not "readily subject to a narrowing construction by the state courts." Since there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance, and since the limited amount of uncertainty in the ordinances is easily susceptible of a narrowing construction, we think this is an inappropriate case in which to adjudicate the hypothetical claims of persons not before the Court. The only area of protected communication that may be deterred by these ordinances comprises films containing material falling within the specific definitions of "Specified Sexual Activities" or "Specified Anatomical Areas." The fact that the First Amendment protects some, though not necessarily all, of that material from total suppression does not warrant the further conclusion that an exhibitor's doubts as to whether a borderline film may be shown in his theater, as well as in theaters licensed for adult presentations, involves the kind of threat to the free market in ideas and expression that justifies the exceptional approach to constitutional adjudication recognized in cases like Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. Page 9 1116, 14 L.Ed.2d 22. The application of the ordinances to respondents is plain; even if there is some area of uncertainty about their application in other situations, we agree with the District Court that respondents' due process argument must be rejected. *62II Petitioners acknowledge that the ordinances prohibit theaters which are not licensed as "adult motion picture theaters" from exhibiting films which are protected by the First Amendment. Respondents argue that the ordinances are therefore invalid as prior restraints on free speech. The ordinances are not challenged on the ground that they impose a limit on the total number of adult theaters which may operate in the city of Detroit. There is no claim that distributors or exhibitors of adult films are denied access to the market or, conversely, that the viewing public is unable to satisfy its appetite for sexually explicit fare. Viewed as an entity, the market for this commodity is essentially unrestrained. [4][5] It is true, however, that adult films may only be exhibited commercially in licensed theaters. But that is also true of all motion pictures. The city's general zoning laws require all motion picture theaters to satisfy certain locational as well as other requirements; we have no doubt that the municipality may control the location of theaters as well as the location of other commercial establishments, either by confining them to certain specified commercial zones or by requiring that they be dispersed throughout the city. The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances. [6] Putting to one side for the moment the fact that adult motion picture theaters must satisfy a locational restriction not applicable to other theaters, we are also persuaded that the 1,000-foot restriction does not, in itself, create an impermissible restraint on protected communication. The city's interest in planning and regulating the use of property for commercial purposes *63 is clearly adequate to support that kind of restriction applicable to all theaters within the city limits. In short, apart from the fact that the ordinances treat adult theaters differently from other theaters and the fact that the classification is predicated on the content of material shown in the respective theaters, the regulation of the place where such films may be exhibited does not **2449 offend the First Amendment. [FN18] We turn, therefore, to the question whether the classification is consistent with the Equal Protection Clause. FN18. Reasonable regulations of the time, place, and manner of protected speech, where those regulations are necessary to further significant governmental interests, are permitted by the First Amendment. See, E.g., Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513 (limitation on use of sound trucks); Cox v. Louisiana, 379 U.S. 559, 85 S.Ct. 476, 13 L.Ed.2d 487 (ban on demonstrations in or near a courthouse with the intent to obstruct justice); Grayned v. City of Rockford, 408 U.S. 104, 92 S.Ct. 2294, 33 L.Ed.2d 222 (ban on willful making, on grounds adjacent to a school, of any noise which disturbs the good order of the school session). Ill A remark attributed to Voltaire characterizes our zealous adherence to the principle that the government may not tell the citizen what he may or may not say. Referring to a suggestion that the violent overthrow of tyranny might be legitimate, he said: "I disapprove of what you say, but I will defend to the death your right to say it." [FN19] The essence of that comment has been repeated time after time in our decisions invalidating attempts by the government to impose selective controls upon the dissemination of ideas. FN19. S. Tallentrye, The Friends of Voltaire 199 (1907). Thus, the use of streets and parks for the free expression of views on national affairs may not be conditioned upon the sovereign's agreement with what a speaker may intend to say. [FN20] Nor may speech be curtailed because it *64 invites dispute, creates dissatisfaction with conditions the way they are, or even stirs people to anger. [FN21] The sovereign's agreement or disagreement with the content of what a speaker has to say may not affect the regulation of the time, place, or manner of presenting the speech. FN20. See Hague v. CIO, 307 U.S. 496, 516, 59 S.Ct. 954, 964, 83 L.Ed. 1423 (opinion of Roberts, J.). FN21. Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131. If picketing in the vicinity of a school is to be allowed to express the point of view of labor, that means of expression in that place must be allowed for other points of view as well. As we said in Mosley : "The central problem with Chicago's ordinance is that it describes permissible picketing in terms of its subject matter. Peaceful picketing on the subject of a school's labor-management dispute is permitted, but all other peaceful picketing is prohibited. The operative distinction is the message on a picket sign. But, above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content. Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971); Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969); New York Times Co. v. Sullivan, 376 U.S. 254, 269-270, 84 S.Ct. 710, 720-721, 11 L.Ed.2d 686 (1964), and cases cited; NAACP v. Button, 371 U.S. 415, 445, 83 S.Ct. 328, 344, 9 L.Ed.2d 405 (1963); Wood v. Georgia, 370 U.S. 375, 388-389, 82 S.Ct. 1364, 1371-1372, 8 L.Ed.2d 569 (1962); Terminiello v. Chicago, 337 U.S. 1, 4, 69 S.Ct. 894, 895, 93 L.Ed. 1131 (1949); De Jonge v. Oregon, 299 U.S. 353, 365, 57 S.Ct. 255, 260, 81 L.Ed. 278 (1937). To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship. The essence of this forbidden censorship is content control. Any restriction on expressive activity because of its content *65 would completely undercut the 'profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.1 New York Times Co. v. Sullivan, supra, 376 U.S., at 270, 84 S.Ct., at 721. **2450 "Necessarily, then, under the Equal Protection Clause, not to mention the First Amendment itself, government may not grant the use of a forum to people whose views it Page 10 finds acceptable, but deny use to those wishing to express less favored or more controversial views. And it may not select which issues are worth discussing or debating in public facilities. There is an 'equality of status in the field of ideas,' and government must afford all points of view an equal opportunity to be heard. Once a forum is opened up to assembly or speaking by some groups, government may not prohibit others from assembling or speaking on the basis of what they intend to say. Selective exclusions from a public forum may not be based on content alone, and may not be justified by reference to content alone." 408 U.S., at 95-96, 92 S.Ct., at 2290. (Footnote omitted.) This statement, and others to the same effect, read literally and without regard for the facts of the case in which it was made, would absolutely preclude any regulation of expressive activity predicated in whole or in part on the content of the communication. But we learned long ago that broad statements of principle, no matter how correct in the context in which they are made, are sometimes qualified by contrary decisions before the absolute limit of the stated principle is reached. [FN22] When we review this Court's actual adjudications in the First Amendment area, we find this to have been the case *66 with the stated principle that there may be no restriction whatever on expressive activity because of its content. FN22. See E. g., Kastigar v. United States, 406 U.S. 441, 454-455, 92 S.Ct. 1653, 1661-1662, 32 L.Ed.2d 212; United Gas Imp. Co. v. Continental Oil Co., 381 U.S. 392, 404, 85 S.Ct. 1517, 1524, 14 L.Ed.2d 466. [7] The question whether speech is, or is not, protected by the First Amendment often depends on the content of the speech. Thus, the line between permissible advocacy and impermissible incitation to crime or violence depends, not merely on the setting in which the speech occurs, but also on exactly what the speaker had to say. [FN23] Similarly, it is the content of the utterance that determines whether it is a protected epithet or an unprotected "fighting comment." [FN24] And in time of war "the publication of the sailing dates of transports or the number and location of troops" may unquestionably be restrained, see Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716, 51 S.Ct. 625, 631, 75 L.Ed. Page 11 1357, although publication of news stories with a different content would be protected. FN23. See Bond v. Floyd, 385 U.S. 116, 133-134, 87 S.Ct. 339, 348, 17 L.Ed.2d 235; Harisiades v. Shaughnessy, 342 U.S. 580, 592, 72 S.Ct. 512, 520,96 L.Ed. 586; Musser v. Utah, 333 U.S. 95, 99-101, 68 S.Ct. 397, 398-399, 92 L.Ed. 562. FN24. In Chaplinsky v. New Hampshire, 315 U.S. 568, 574, 62 S.Ct. 766, 770, 86 L.Ed. 1031, we held that a statute punishing the use of "damned racketeer(s)" and "damned Fascisms)" did not unduly impair liberty of expression. [8] Even within the area of protected speech, a difference in content may require a different governmental response. In New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, we recognized that the First Amendment places limitations on the States' power to enforce their libel laws. We held that a public official may not recover damages from a critic of his official conduct without proof of "malice" as specially defined in that opinion. [FN25] Implicit in the opinion is the assumption that if the content of the newspaper article had been different that is, if its subject matter had not been a public official a lesser standard of proof would have been adequate. FN25. "Actual malice" is shown by proof that a statement was made "with knowledge that it was false or with reckless disregard of whether it was false or not." 376 U.S., at 280, 84 S.Ct., at 726. [9] *67 In a series of later cases, in which separate individual views were frequently stated, the Court addressed the broad problem of when the New York Times standard **2451 of malice was required by the First Amendment. Despite a diversify of opinion on whether it was required only in cases involving public figures, or also in cases involving public issues, and on whether the character of the damages claim mattered, a common thread which ran through all the opinions was the assumption that the rule to be applied depended on the content of the communication. [FN26] But that assumption did not contradict the underlying reason for the rule which is generally described as a prohibition of regulation based on the content of protected communication. The essence of that rule is the need for absolute neutrality by the government; its regulation of communication may not be affected by sympathy or hostility for the point of view being expressed by the communicator. [FN27] Thus, although *68 the content of story must be examined to decide whether it involves a public figure or a public issue, the Court's application of the relevant rule may not depend on its favorable or unfavorable appraisal of that figure or that issue. FN26. See, for example, the discussion of the " 'public or general interest' test" for determining the applicability of the New York Times standard in Gertz v. Robert Welch, Inc., 418 U.S. 323, 346, 94 S.Ct. 2997, 3010, 41 L.Ed.2d 789, and the reference, Id., at 348, 94 S.Ct., at 3011, to a factual misstatement "whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential." The mere fact that an alleged defamatory statement is false does not, of course, place it completely beyond the protection of the First Amendment. "The First Amendment requires that we protect some falsehood in order to protect speech that matters." Id., at 341, 94 S.Ct. at 3007. FN27. Thus, Professor Kalven wrote in The Concept of the Public Forum: Cox v. Louisiana, 1965 Sup.Ct.Rev. 1, 29: "(The Equal Protection Clause) is likely to provide a second line of defense for vigorous users of the public forum. If some groups are exempted from a prohibition on parades and pickets, the rationale for regulation is fatally impeached. The objection can then no longer be keyed to interferences with other uses of the public places, but would appear to implicate the kind of message that the groups were transmitting. The regulation would thus slip from the neutrality of time, place, and circumstance into a concern about content. The result is that equal- protection analysis in the area of speech issues would merge with considerations of censorship. And this is precisely what Mr. Justice Black argued in Cox : " 'But Page 12 by specifically permitting picketing for the publication of labor union views, Louisiana is attempting to pick and choose among the views it is willing to have discussed on its streets. It is thus trying to prescribe by law what matters of public interest people it allows to assemble on its streets may and may not discuss. This seems to me to be censorship in a most odious form ..." (379 U.S., at 581, 85 S.Q., at 453)." [10] We have recently held that the First Amendment affords some protection to commercial speech. [FN28] We have also made it clear, however, that the content of a particular advertisement may determine the extent of its protection. A public rapid transit system may accept some advertisements and reject others. ,[FN29] A state statute may permit highway billboards to advertise businesses located in the neighborhood but not elsewhere, [FN30] and regulatory commissions may prohibit businessmen from making statements which, though literally true, are potentially deceptive. [FN31] The measure of **2452 constitutional protection *69 to be afforded commercial speech will surely be governed largely by the content of the communication. [FN32] FN28. Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346. FN29. Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770 (product advertising accepted, while political cards rejected). FN30. Markham Advertising Co. v. State, 73 Wash.2d 405, 439 P.2d 248 (1968), appeal dismissed for want of a substantial federal question, 393 U.S. 316, 89 S.Ct. 553, 21 L.Ed.2d 512. FN31. In NLRB v. Gissel Packing Co., 395 U.S. 575,617, 89 S.Ct. 1918, 1941, 23 L.Ed.2d 547, the Court upheld a federal statute which balanced an employer's free speech right to communicate with his employees against the employees' rights to associate freely by providing that the expression of " 'any views, argument, or opinion' " should not be " 'evidence of an unfair labor practice,' " So long as such expression contains " 'no threat of reprisal or force or promise of benefit' " which would involve interference, restraint, or coercion of employees in the exercise of their right to self-organization. The power of the Federal Trade Commission to restrain misleading, as well as false, statements in labels and advertisements has long been recognized. See, E. g., Jacob Siegel Co. v. FTC, 327 U.S. 608, 66 S.Ct. 758, 90 L.Ed. 888; FTC v. National Comm'n on Egg Nutrition, 517 F.2d 485 (CA7 1975); E. F. Drew & Co. v. FTC, 235 F.2d 735, 740 (CA2 1956). FN32. As Mr. Justice Stewart pointed out in Virginia Pharmacy Board v. Virginia Consumer Council, supra, 425 U.S., at 779, 96 S.Ct., at 1834 (concurring opinion), the "differences between commercial price and product advertising . . . and ideological communication" permits regulation of the former that the First Amendment would not tolerate with respect to the latter. More directly in point are opinions dealing with the question whether the First Amendment prohibits the State and Federal Governments from wholly suppressing sexually oriented materials on the basis of their "obscene character." In Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, the Court upheld a conviction for selling to a minor magazines which were concededly not "obscene" if shown to adults. Indeed, the Members of the Court who would accord the greatest protection to such materials have repeatedly indicated that the State could prohibit the distribution or exhibition of such materials to juveniles and unconsenting adults. [FN33] Surely the First Amendment does *70 not foreclose such a prohibition;yet it is equally clear that any such prohibition must rest squarely on an appraisal of the content of material otherwise within a constitutionally protected area. FN33. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 73, 93 S.Ct. 2628, 2665, 37 L.Ed.2d 446, Mr. Justice Brennan, in a dissent joined by Mr. Justice Stewart and Mr. Justice Marshall, explained his approach to the difficult problem of obscenity under the First Amendment: "I would hold, therefore, that at least in Page 13 the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly 'obscene' contents. Nothing in this approach precludes those governments from taking action to serve what may be strong and legitimate interests through regulation of the manner of distribution of sexually oriented material." Id., at 113, 93S.Ct.,at2662. Such a line may be drawn on the basis of content without violating the government's paramount obligation of neutrality in its regulation of protected communication. For the regulation of the places where sexually explicit films may be exhibited is unaffected by whatever social, political, or philosophical message a film may be intended to communicate; whether a motion picture ridicules or characterizes one point of view or another, the effect of the ordinances is exactly the same. [11] Moreover, even though we recognize that the First Amendment will not tolerate the total suppression of erotic materials that have some arguably artistic value, it is manifest that society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate that inspired Voltaire's immortal comment. Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice. Even though the First Amendment protects communication in this area from total suppression, we hold that the State may legitimately use the content of these materials as the basis *71 for placing them in a different classification from other motion pictures. [12][13] The remaining question is whether the line drawn by these ordinances is justified by the city's interest in preserving the character of its neighborhoods. On this question we agree with the views expressed by District Judges Kennedy and Gubow. The record disclosed a factual basis for the Common Council's conclusion that this kind of restriction will have the **2453 desired effect. [FN34] It is not our function to appraise the wisdom of its decision to require adult theaters to be separated rather than concentrated in the same areas. In either event, the city's interest in attempting to preserve the quality of urban life is one that must be accorded high respect. Moreover, the city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems. FN34. The Common Council's determination was that a concentration of "adult" movie theaters causes the area to deteriorate and become a focus of crime, effects which are not attributable to theaters showing other types of films. It is this secondary effect which these zoning ordinances attempt to avoid, not the dissemination of "offensive" speech. In contrast, in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125, the justifications offered by the city rested primarily on the city's interest in protecting its citizens from exposure to unwanted, "offensive" speech. The only secondary effect relied on to support that ordinance was the impact on traffic an effect which might be caused by a distracting open-air movie even if it did not exhibit nudity. Since what is ultimately at stake is nothing more than a limitation on the place where adult films may be exhibited, [FN35] even though the determination of whether a *72 particular film fits that characterization turns on the nature of its content, we conclude that the city's interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures. We hold that the zoning ordinances requiring that adult *73 motion picture theaters not be located within 1,000 feet of two other regulated uses does not violate the Equal Protection Clause of the Fourteenth Amendment. FN35. The situation would be quite different if the ordinance had the effect of suppressing, or greatly restricting access to, lawful speech. Here, however, the District Court specifically found that "(t)he Ordinances do not affect the operation of existing establishments but only the location of new ones. There are myriad locations in the City of Detroit which must be over 1000 feet from existing regulated establishments. This burden on First Amendment rights is slight." 373 F.Supp., at 370. It should also be noted that the definitions of "Specified Sexual Activities" and "Specified Anatomical Areas" in the zoning ordinances, which require an emphasis on such matter and primarily concern conduct, are much more limited than the terms of the public nuisance ordinance involved in Erznoznik, supra, which broadly prohibited scenes which could not be deemed inappropriate even for juveniles. "The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing Any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby's buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. See Ginsberg v. New York, supra. Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." 422 U.S., at 213-214, 95 S.Q., at 2274. Moreover, unlike the ordinances in this case, the Erznoznik ordinance singled out movies "containing even the most fleeting and innocent glimpses of nudity . ..." Id., at 214, 95 S.Ct., at 2275. The Court's opinion in Erznoznik presaged our holding today by noting that the presumption of statutory validity "has less force when a classification turns on the subject matter of expression." Id., at 215, 95 S.Ct., at 2275. Respondents' position is that the presumption has no force, or more precisely, that any classification based on subject matter is absolutely prohibited. Page 14 The judgment of the Court of Appeals is Reversed. Mr. Justice POWELL, concurring in the judgment and portions of the opinion. Although I agree with much of what is said in the Court's opinion, and concur in Parts I and II, my approach to the resolution of this case is sufficiently different to prompt me to write separately. [FN1] I view the **2454 case as presenting an example of innovative land-use regulation, implicating First Amendment concerns only incidentally and to a limited extent. FN1.1 do not think we need reach, nor am I inclined to agree with, the holding in Part III (and supporting discussion) that nonobscene, erotic materials may be treated differently under First Amendment principles from other forms of protected expression. I do not consider the conclusions in Part I of the opinion to depend on distinctions between protected speech. I One-half century ago this Court broadly sustained the power of local municipalities to utilize the then relatively novel concept of land-use regulation in order to meet effectively the increasing encroachments of urbanization upon the quality of life of their citizens. Euclid v. Ambler Realty Co., 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303 (1926). The Court there noted the very practical consideration underlying the necessity for such power: "(W)ith the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities." Id., at 386-387, 47 S.Ct., at 118. The Court also *74 laid out the general boundaries within which the zoning power may operate: Restrictions upon the free use of private land must find their justifications in "some aspect of the police power, asserted for the public welfare"; the legitimacy of any particular restriction must be judged with reference to all of the surrounding circumstances and conditions; and the legislative judgment is to control in cases in which the validity of a particular zoning regulation is "fairly debatable." Id., at 387, 388, Page 15 47S.Ct.,at 118. In the intervening years zoning has become an accepted necessity in our increasingly urbanized society, and the types of zoning restrictions have taken on forms far more complex and innovative than the ordinance involved in Euclid. In Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974), we considered an unusual regulation enacted by a small Long Island community in an apparent effort to avoid some of the unpleasantness of urban living. It restricted land use within the village to single-family dwellings and defined "family" in such a way that no more than two unrelated persons could inhabit the same house. We upheld this ordinance, noting that desires to avoid congestion and noise from both people and vehicles were "legitimate guidelines in a land-use project addressed to family needs" and that it was quite within the village's power to "make the area a sanctuary for people." Id., at 9, 94 S.Ct., at 1541. II Against this background of precedent, it is clear beyond question that the Detroit Common Council had broad regulatory power to deal with the problem that prompted enactment of the Anti-Skid Row Ordinance. As the Court notes, Ante, at 2444, and n. 6, the Council was motivated by its perception that the "regulated uses," when concentrated, worked a "deleterious effect upon the *75 adjacent areas" and could "contribute to the blighting or downgrading of the surrounding neighborhood." The purpose of preventing the deteriorationf commercial neighborhoods was certainly within the concept of the public welfare that defines the limits of the police power. See Berman v. Parker, 348 U.S. 26, 32-33, 75 S.Ct. 98, 102, 99 L.Ed. 27 (1954). Respondents apparently concede the legitimacy of the ordinance as passed in 1962, but challenge the amendments 10 years later that brought within its provisions adult theaters as well as adult bookstores and "topless" cabarets. Those amendments resulted directly from the Common Council's determination that the recent proliferation of these establishments and their tendency to cluster in certain parts of the city would have the adverse effect upon the surrounding areas that the ordinance was aimed at preventing. Respondents' attack on the amended ordinance, insofar as it affects them, can be stated simply. Contending that it is the "character of the right, not of the limitation," which governs the standard of judicial review, see Thomas v. Collins, 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430 (1945), and that zoning regulations therefore have no talismanic immunity from constitutional **24S5 challenge, cf. New York Times Co. v. Sullivan, 376 U.S. 254, 269, 84 S.Ct. 710, 720, 11 L.Ed.2d 686 (1964), they argue that the 1972 amendments abridge First Amendment rights by restricting the places at which an adult theater may locate on the basis of nothing more substantial than unproved fears and apprehensions about the effects of such a business upon the surrounding area. Cf., E. g., Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949); Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965). And, even if Detroit's interest in preventing the deterioration of business areas is sufficient to justify the impact upon freedom of expression, the ordinance is nevertheless invalid because it impermissibly *76 discriminates between types of theaters solely on the basis of their content. See Police Dept. of Chicago v. Mosley, 408 U.S. 92,92 S.Ct. 2286, 33 L.Ed.2d 212 (1972). I reject respondents' argument for the following reasons. Ill This is the first case in this Court in which the interests in free expression protected by the First and Fourteenth Amendments have been implicated by a municipality's commercial zoning ordinances. Respondents would have us mechanically apply the doctrines developed in other contexts. But this situation is not analogous to cases involving expression in public forums or to those involving individual expression or, indeed, to any other prior case. The unique situation presented by this ordinance calls, as cases in this area so often do, for a careful inquiry into the competing concerns of the State and the interests protected by the guarantee of free expression. Because a substantial burden rests upon the State when it would limit in any way First Amendment rights, it is necessary to identify with specificity the nature of the infringement in each case. The primary concern of the free speech guarantee is that there be full opportunity for expression in all Page 16 of its varied forms to convey a desired message. Vital to this concern is the corollary that there be full opportunity for everyone to receive the message. See, E. g., Whitney v. California, 274 U.S. 357, 377, 47 S.Ct. 641, 648, 71 L.Ed. 1095 (1927) (Brandeis, J., concurring); Cohen v. California, 403 U.S. 15, 24, 91 S.Ct. 1780, 1787, 29 L.Ed.2d 284 (1971); Procunier v. Martinez, 416 U.S. 396, 408-409, 94 S.Ct. 1800, 1808-1809, 40 L.Ed.2d 224 (1974); Kleindienst v. Mandel, 408 U.S. 753, 762-765, 92 S.Ct. 2576, 2581-2582, 33 L.Ed.2d 683 (1972); Virginia Pharmacy Board v. Virginia Consumer Council, 425 U.S. 748, 763-765, 96 S.Ct. 1817, 1826-1827, 48 L.Ed.2d 346 (1976). Motion pictures, the medium of expression involved here, are fully within the protection of the First *77 Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501- 503, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). In the quarter century since Burstyn motion pictures and an analous medium, printed books, have been before this Court on many occasions, and the person asserting a First Amendment claim often has been a theater owner or a bookseller. Our cases reveal, however, that the central concern of the First Amendment in this area is that there be a free flow from creator to audience of whatever message a film or a book might convey. Mr. Justice Douglas stated the core idea succinctly: "In this Nation every writer, actor, or producer, no matter what medium of expression he may use, should be freed from the censor." Superior Films v. Department of Education, 346 U.S. 587, 589, 74 S.Ct. 286, 287, 98 L.Ed. 329 (1954) (concurring opinion). In many instances, for example with respect to certain criminal statutes or censorship or licensing schemes, it is only the theater owner or the bookseller who can protect this interest. But the central First Amendment concern remains the need to maintain free access of the public to the expression. See, E. g., Kingsley Books, Inc. v. Brown, 354 U.S. 436, 442, 77 S.Ct. 1325, 1 L.Ed.2d 1469 (1957); Smith v. California, 361 U.S. 147, 150, 153-154, 80 S.Ct. 215, 218-219, 4 L.Ed.2d 205 (1959); Interstate Circuit v. Dallas, 390 U.S. 676, 683-684, 88 S.Ct. 1298, 1302-1303, 20 **2456 L.Ed.2d 225 (1968); compare Marcus v. Search Warrant, 367 U.S. 717, 736, 81 S.Ct. 1708, 1718, 6 L.Ed.2d 1127 (1961), and A Quantity of Books v. Kansas, 378 U.S. 205, 213, 84 S.Ct. 1723, 1727, 12 L.Ed.2d 809 (1964), with Heller v. New York, 413 U.S. 483, 491-492, 93 S.Ct. 2789, 2794, 37 L.Ed.2d 745 (1973); and cf. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70-71, 83 S.Ct. 631, 639, 9 L.Ed.2d 584 (1963). In this case, there is no indication that the application of the Anti-Skid Row Ordinance to adult theaters has the effect of suppressing production of or, to any significant degree, restricting access to adult movies. The Nortown concededly will not be able to exhibit adult movies at its present location, and the ordinance limits the potential *78 location of the proposed Pussy Cat. The constraints of the ordinance with respect to location may indeed create economic loss for some who are engaged in this business. But in this respect they are affected no differently from any other commercial enterprise that suffers economic detriment as a result of land-use regulation. The cas are legion that sustained zoning against claims of serious economic damage. See, E. g., Zahn v. Board of Public Works, 274 U.S. 325, 47 S.Ct. 594, 71 L.Ed. 1074 (1927). The inquiry for First Amendment purposes is not concerned with economic impact; rather, it looks only to the effect of this ordinance upon freedom of expression. This prompts essentially two inquiries: (i) Does the ordinance impose any content limitation on the creators of adult movies or their ability to make them available to whom they desire, and (ii) does it restrict in any significant way the viewing of these movies by those who desire to see them? On the record in this case, these inquiries must be answered in the negative. At most the impact of the ordinance on these interests is incidental and minimal. [FN2] Detroit has silenced no message, has invoked no censorship, and has imposed no limitation upon those who wish to view them. The ordinance is addressed only to the places at which this type of *79 expression may be presented, a restriction that does not interfere with content. Nor is there any significant overall curtailment of adult movie presentations, or the opportunity for a message reach an audience. On the basis of the District Court's finding, Ante, at 2453, n. 35, it appears that if a sufficient market exists to support them the number of adult movie theaters in Detroit will remain approximately the same, free to purvey the same message. To be sure some prospective patrons may be inconvenienced by this dispersal. [FN3] But other patrons, depending upon where they live or work, may find it more convenient to view an adult movie when adult theaters are not concentrated in a particular section of the city. Page 17 FN2. The communication involved here is not a kind in which the content or effectiveness of the message depends in some measure upon where or how it is conveyed. Cf. Cox v. Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965); Brown v. Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966); Police Dept. of Chicago v. Mosley, supra, 408 U.S. 92, 93, 92 S.Ct. 2286, 2288, 33 L.Ed.2d 212 (1972). There is no suggestion that the Nortown is, or that the Pussy Cat would be, anything more than a commercial purveyor. They do not profess to convey their own personal messages through the movies they show, so that the only communication involved is that contained in the movies themselves. Cf. United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968); Spence v. Washington, 418 U.S. 405, 409-411, 94 S.Ct. 2727, 2729-2730, 41 L.Ed.2d 842 (1974). FN3. The burden, it should be noted, is no different from that imposed by more common ordinances that restrict to commercial zones of a city movie theaters generally as well as other types of businesses presenting similar traffic, parking, safety, or noise problems. After a half century of sustaining traditional zoning of this kind, there is no reason to believe this Court would invalidate such an ordinance as violative of the First Amendment. The only difference between such an ordinance and the Detroit ordinance lies in the reasons for regulating the location of adult theaters. The special public interest that supports this ordinance is certainly as substantial as the interests that support the normal area zoning to which all movie theaters, like other commercial establishments, long have been subject. **2457 In these circumstances, it is appropriate to analyze the permissibility of Detroit's action under the four-part test of United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968). Under that test, a governmental regulation is sufficiently justified, despite its incidental impact upon First Amendment interests, "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free *80 expression; and if the incidental restriction on ... First Amendment freedoms is no greater than is essential to the furtherance of that interest." Ibid. The factual distinctions between a prosecution for destruction of a Selective Service registration certificate, as in O'Brien, and this case are substantial, but the essential weighing and balancing of competing interestare the same. Cf. Procunier v. Martinez, 416 U.S., at 409-412, 94 S.Ct., at 1809-1810. There is, as noted earlier, no question that the ordinance was within the power of the Detroit Common Council to enact. See Berman v. Parker, 348 U.S., at 32, 75 S.Ct., at 102. Nor is there doubt that the interests furthered by this ordinance are both important and substantial. Without stable neighborhoods, both residential and commercial, large sections of a modern city quickly can deteriorate into an urban jungle with tragic consequences to social, environmental, and economic values. While I agree with respondents that no aspect of the police power enjoys immunity from searching constitutional scrutiny, it also is undeniable that zoning, when used to preserve the character of specific areas of a city, is perhaps "the most essential function performed by local government, for it is one of the primary means by which we protect that sometimes difficult to define concept of quality of life." Village of Belle Terre v. Boraas, 416 U.S., at 13, 94 S.Ct., at 1543 (Marshall, J., dissenting). The third and fourth tests of O'Brien also are met on this record. It is clear both from the chronology and from the facts that Detroit has not embarked on an effort to suppress free expression. The ordinance was already in existence, and its purposes clearly set out, for a full decade before adult establishments were brought under it. When this occurred, it is clear indeed it is not seriously challenged that the governmental interest prompting the inclusion in the ordinance of adult establishments was wholly unrelated to any suppression of *81 free expression. [FN4] Nor is there reason to question**2458 that the degree of incidental encroachment upon such expression was the minimum necessary to further the purpose *82 of the ordinance. The evidence presented to the Common Council indicated that the urban deterioration was threatened, not by the Page 18 concentration of all movie theaters with other "regulated uses," but only by a concentration of those that elected to specialize in adult movies. [FN5] The case would present a different situation had Detroit brought within the ordinance types of theaters that had not been shown to contribute to the deterioration of surrounding areas. [FN6] FN4. Respondents attack the nature of the evidence upon which the Common Council acted in bringing adult entertainment establishments under the ordinance, and which petitioners submitted to the District Court in support of it. That evidence consisted of reports and affidavits from sociologists and urban planning experts, as well as some laymen, on the cycle of decay that had been started in areas of other cities, and that could be expected in Detroit, from the influx and concentration of such establishments. Respondents insist that a major part of that cycle is a kind of "self-fulfilling prophecy" in which a business establishment neighboring on several of the "regulated uses" perceives that the area is going downhill economically, and moves out, with the result that a less desirable establishment takes its place thus fulfilling the prophecy made by the more reputable business. As noted earlier, Supra, at 2454, respondents have tried to analogize these types of fears to the apprehension found insufficient in previous cases to justify stifling free expression. But cases like Cox and Terminiello, upon which respondents rely, involved individuals desiring to express Their own messages rather than commercial exhibitors of films or vendors of books. When an individual or a group of individuals is silenced, the message itself is silenced and free speech is stifled. In the context of movies and books, the more apt analogy to Cox or Terminiello would be the censorship cases, in which a State or a municipality attempted to suppress copies of particular works, or the licensing cases in which that danger was presented. But a zoning ordinance that merely specifies where a theater may locate, and that does not reduce significantly the number or accessibility of theaters presenting particular films, stifles no expression. Moreover, the Common Council did not inversely zone adult theaters in an effort to protect citizens against the Content of adult movies. If that had been its purpose, or the effect of the amendment to the ordinance, the case might be analogous to those cited by Mr. Justice STEWART'S dissent, Post, at 2459. Moreover, an intent or purpose to restrict the communication itself because of its nature would make the O'Brien test inapplicable. See O'Brien, 391 U.S., at 382, 88 S.Ct., at 1681; Spence v. Washington, 418 U.S., at 414 n. 8, 94 S.Ct., at 2732; cf. Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). But the Common Council simply acted to protect the economic integrity of large areas of its city against the effects of a predictable interaction between a concentration of certain businesses and the responses of people in the area. If it had been concerned with restricting the message purveyed by adult theaters, it would have tried to close them or restrict their number rather than circumscribe their choice as to location. FN5. Respondents have argued that the Common Council should have restricted adult theaters' hours of operation or their exterior advertising instead of refusing to allow their clustering with other "regulated uses." Most of the ill effects, however, appear to result from the clustering itself rather than the operational characteristics of individual theaters. Moreover, the ordinance permits an exception to its 1,000-foot restriction in appropriate cases. See Ante, at 2444 n. 7. FN6. In my view Mr. Justice STEWART'S dissent misconceives the issue in this case by insisting that it involves an impermissible time, place, and manner restriction based on the content of expression. It involves nothing of the kind. We have here merely a decision by the city to treat certain movie theaters differently because they have markedly different effects upon their surroundings. See n. 3, Supra. Moreover, even if this were a case Page 19 involving a special governmental response to the content of one type of movie, it is possible that the result would be supported by a line of cases recognizing that the government can tailor its reaction to different types of speech according to the degree to which its special and overriding interests are implicated. See, E. g., Tinker v. Des Moines School Dist., 393 U.S. 503, 509-511, 89S.Q. 733, 737-739,21 L.Ed.2d731 (1969); Procunier v. Martinez, 416 U.S. 396, 413-414, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974); Greer v. Spock, 424 U.S. 828, 842-844, 96 S.Ct. 1211, 1219-1220, 47 L.Ed.2d 505 (1976) (Powell, J., concurring); cf. CSC v. Letter Carriers, 413 U.S. 548, 93 S.Ct. 2880, 37 L.Ed.2d 796 (1973). It is not analogous to Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972), in which no governmental interest justified a distinction between the types of messages permitted in the public forum there involved. *83IV The dissenting opinions perceive support for their position in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975). I believe this perception is a clouded one. The Jacksonville and Detroit ordinances are quite dissimilar, and our analysis of the infirmities of the former is inapplicable to the latter. In Erznoznik, an ordinance purporting to prevent a nuisance, not a comprehensive zoning ordinance, prohibited the showing of films containing nudity by drive-in theaters when the screens were visible from a public street or place. The governmental interests advanced as justifying the ordinance were three: (i) to protect citizens from unwilling exposure to possibly offensive material; (ii) to protect children from such materials; and (iii) to prevent the slowing of passing traffic and the likelihood of resulting accidents. We found the Jacksonville ordinance on its face either overbroad or underinclusive with respect to each of these asserted purposes. As to the first purpose, the ordinance was overbroad because it proscribed the showing of any nudity, however innocent or educational. Moreover, potential viewers who deemed particular nudity to be offensive were not captives; they had only to look elsewhere. Id., at 210-212, 95 S.Ct., at 2273-2274; see Cohen v. California, 403 U.S., at 21, 91 S.Ct., at 1786. As to minors the Jacksonville ordinance was overbroad because it "might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach." 422 U.S., at 213, 95 S.Ct., at 2275. Finally, the **2459 ordinance was not rationally tailored to support its asserted purpose as a traffic regulation. By proscribing "even the most fleeting and innocent glimpses of nudity," it was strikingly underinclusive omitting "a wide variety *84 of other scenes in the customary screen diet . . . (that) would be (no) less distracting to the passing motorist." Id., at 214-215, 95 S.Ct., at 2275. In sum, the ordinance in Erznoznik was a misconceived attempt directly to regulate content of expression. The Detroit zoning ordinance, in contrast, affects expression only incidentally and in furtherance of governmental interests wholly unrelated to the regulation of expression. At least as applied to respondents, it does not offend the First Amendment. Although courts must be alert to the possibility of direct rather than incidental effect of zoning on expression, and especially to the possibility of using the power to zone as a pretext for suppressing expression, it is clear that this is not such a case. Mr. Justice STEWART, with whom Mr. Justice BRENNAN, Mr. Justice MARSHALL, and Mr. Justice BLACKMUN join, dissenting. The Court today holds that the First and Fourteenth Amendments do not prevent the city of Detroit from using a system of prior restraints and criminal sanctions to enforce content-based restrictions on the geographic location of motion picture theaters that exhibit nonobscene but sexually oriented films. I dissent from this drastic departure from established principles of First Amendment law. This case does not involve a simple zoning ordinance, [FN1] or a content- neutral time, place, and manner restriction, [FN2]*85 or a regulation of obscene expression or other speech that is entitled to less than the full protection of the First Amendment. [FN3] The kind of expression at issue here is no doubt objectionable to some, but that fact does not diminish its protected status any more than did the particular content of the "offensive" expression in Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (display of nudity on a drive-in movie screen); Lewis v. City of New Orleans, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (utterance of vulgar epithet); Hess v. Indiana, 414 U.S. 105, 94 S.Ct. 326, 38 L.Ed.2d 303 (utterance of vulgar remark); Papish Page 20 v. University of Missouri Curators, 410 U.S. 667, 93 S.Ct. 1197, 35 L.Ed.2d 618 (indecent remarks in campus newspaper); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (wearing of clothing inscribed with a vulgar remark); Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (utterance of racial slurs); or Kingsley Pictures Corp. v. Regents, 360 U.S. 684, 79 S.Ct. 1362, 3 L.Ed.2d 1512 (alluring portrayal of adultery as proper behavior). FN1. Contrast Village of Belle Terre v. Boraas, 416 U.S. 1, 94 S.Ct. 1536, 39 L.Ed.2d 797, which upheld a zoning ordinance that restricted no substantive right guaranteed by the Constitution. FN2. Here, as in Police Dept. of Chicago v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212, and Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125, the State seeks to impose a selective restraint on speech with a particular content. It is not all movie theaters which must comply with Ordinances No. 742-G and No. 743-G, but only those "used for presenting material distinguished or characterized by an emphasis on matter depicting, describing or relating to 'Specified Sexual Activities' or 'Specified Anatomical Areas' . . .." The ordinances thus " 'sli(p) from the neutrality of time, place, and circumstance into a concern about content.' This is never permitted." Police Dept. of Chicago v. Mosley, supra, 408 U.S., at 99, 92 S.Ct., at 2292 (citation omitted). See, E. g., Hudgens v. NLRB, 424 U.S. 507, 520,96 S.Ct. 1029,1037, 47 L.Ed.2d 196; Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294, 2302, 33 L.Ed.2d 222. FN3. The regulatory scheme contains no provision for a judicial determination of obscenity. As the Court of Appeals correctly held, the material displayed must therefore, be presumed to be fully protected by the First Amendment. 518 F.2d 1014, 1019. What this case does involve is the constitutional permissibility of selective interference with protected speech whose content is thought to produce distasteful effects. It is **2460 elementary that a prime function of the First Amendment is to guard against just such interference. [FN4] By refusing to invalidate Detroit's ordinance the Court rides roughshod over cardinal principles of First Amendment *86 law, which require that time, place, and manner regulations that affect protected expression be content neutral except in the limited context of a captive or juvenile audience. [FN5] In place of these principles the Court invokes a concept wholly alien to the First Amendment. Since "few of us would march our sons and daughters off to war to preserve the citizen's right to see 'Specified Sexual Activities' exhibited in the theaters of our choice," Ante, at 2452, the Court implies that these films are not entitled to the full protection of the Constitution. This stands "Voltaire's immortal comment," Ibid., on its head. For if the guarantees of the First Amendment were reserved for expression that more than a "few of us" would take up arms to defend, then the right of free expression would be defined and circumscribed by current popular opinion. The guarantees of the Bill of Rights were designed to protect against precisely such majoritarian limitations on individual liberty. [FN6] FN4. See, E. g., Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 895-896, 93 L.Ed. 1131. FN5. See, E. g., Hudgens v. NLRB, supra; Erznoznik v. City of Jacksonville, supra; Police Dept. of Chicago v. Mosley, supra. This case does not involve state regulation narrowly aimed at preventing objectionable communication from being thrust upon an unwilling audience. See Erznoznik v. City of Jacksonville, supra, 422 U.S., at 209, 95 S.Ct., at 2272. Contrast Lehman v. City of Shaker Heights, 418 U.S. 298, 94 S.Ct. 2714, 41 L.Ed.2d 770; Rowan v. Post Office Dept., 397 U.S. 728, 90 S.Ct. 1484, 25 L.Ed.2d 736. Nor is the Detroit ordinance narrowly aimed at protecting children from exposure to sexually oriented displays that would not be judged obscene by adult standards. Contrast Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195. FN6. See, E. g., Terminiello v. Page 21 Chicago, supra, 337 U.S., at 4-5, 69 S.Ct., at 895-896. The Court stresses that Detroit's content-based regulatory system does not preclude altogether the display of sexually oriented films. But, as the Court noted in a similar context in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448, this is constitutionally irrelevant, for " 'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.' " Id., at 556, 95 S.Ct., at 1245, quoting Schneider v. State, 308 U.S. 147, 163, 60 S.Ct. 146, 151, 84 L.Ed. 155. See also Interstate Circuit v. Dallas, 390 U.S. 676, 88 S.Ct. 1298,20 L.Ed.2d 225; Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 83 S.Ct. 631, 9 L.Ed.2d 584. *87 The fact that the "offensive" speech here may not address "important" topics "ideas of social and political significance," in the Court's terminology, Ante, at 2447 does not mean that it is less worthy of constitutional protection. "Wholly neutral futilities . . . come under the protection of free speech as fully as do Keats' poems or Donne's sermons." Winters v. New York, 333 U.S. 507, 528, 68 S.Ct. 665, 676, 92 L.Ed. 840 (Frankfurter, J., dissenting); accord, Cohen v. California, supra, 403 U.S., at 25, 91 S.Ct., at 1788. Moreover, in the absence of a judicial determination of obscenity, it is by no means clear that the speech is not "important" even on the Court's terms. "(S)ex and obscenity are not synonymous. . . . The portrayal of sex, E. g., in art, literature and scientific works, is not itself sufficient reason to deny material the constitutional protection of freedom of speech and press. Sex, a great and mysterious motive force in human life, has indisputably been a subject of absorbing interest to mankind through the ages; it is one of the vital problems of human interest and public concern." Roth v. United States, 354 U.S. 476, 487, 77 S.Ct. 1304, 1310, 1 L.Ed.2d 1498 (footnotes omitted). See also Kingsley Pictures Corp. v. Regents, supra, 360 U.S., at 688-689, 79 S.Ct., at 1365. I can only interpret today's decision as an aberration. The Court is undoubtedly sympathetic, as am I, to the well-intentioned efforts of Detroit to "clean up" its streets and prevent the proliferation of "skid rows." But it is in those instances where protected speech grates most unpleasantly against the sensibilities that judicial vigilance must be at its height. **2461 Heretofore, the Court has not shied from its responsibility to protect "offensive" speech from governmental interference. Just last Term in Erznoznik v. City of Jacksonville, supra, the Court held that a city could not, consistently with the First and Fourteenth Amendments, make it a public nuisance for a drive-in movie theater to show films containing nudity if the screen were visible *88 from a public street or place. The factual parallels between that case and this one are striking. There, as here, the ordinance did not forbid altogether the "distasteful" expression but merely required alteration in the physical setting of the forum. There, as here, the city's principal asserted interest was in minimizing the "undesirable" effects of speech having a particular content. And, most significantly, the particular content of the restricted speech at issue in Erznoznik precisely parallels the content restriction embodied in s 1 of Detroit's definition of "Specified Anatomical Areas." Compare Jacksonville Municipal Code s 330.313 with Detroit Ordinance No. 742-G, s 32.0007. In short, Erznoznik is almost on "all fours" with this case. The Court must never forget that the consequences of rigorously enforcing the guarantees of the First Amendment are frequently unpleasant. Much speech that seems to be of little or no value will enter the market place of ideas, threatening the quality of our social discourse and, more generally, the serenity of our lives. But that is the price to be paid for constitutional freedom. Mr. Justice BLACKMUN, with whom Mr. Justice BRENNAN, Mr. Justice STEWART, and Mr. Justice MARSHALL join, dissenting. I join Mr. Justice STEWART'S dissent, and write separately to identify an independent ground on which, for me, the challenged ordinance is unconstitutional. That ground is vagueness. I We should put ourselves for a moment in the shoes of the motion picture exhibitor. Let us suppose that, having previously offered only a more innocuous fare, he *89 decides to vary it by exhibiting on certain days films from a series which occasionally deals explicitly with sex. The exhibitor must determine whether this places h theater into the "adult" class prescribed by the Page 22 challenged ordinance. If the theater is within that class, it must be licensed, and it may be entirely prohibited, depending on its location. "Adult" status Vel non depends on whether the theater is "used for presenting" films that are "distinguished or characterized by an emphasis on" certain specified activities, including sexual intercourse, or specified anatomical areas. [FN1] It will be simple enough, as the operator screens films, to tell when one of these areas or activities is being depicted, but if the depiction represents only a part of the films' subject matter, I am at a loss to know how he will tell whether they are "distinguished or characterized by an emphasis" on those areas and activities. The ordinance gives him no guidance. Neither does it instruct him on how to tell whether, assuming the films in question are thus "distinguished or characterized," his theater is being "used for presenting" such films. That phrase could mean Ever used, Often used, or Predominantly used, to name a few possibilities. FN1. See Ante, 2443-2445, and nn. 3-7. I reproduce, or cite specifically to, only those sections of the challenged ordinance that are not set out in the Court's opinion. Let us assume the exhibitor concludes that the film series will render his showhouse an "adult" theater. He still must determine whether the operation of the theater is prohibited by virtue of there being two other "regulated uses." within 1,000 feet. His task of determining whether his own theater is "adult" is suddenly multiplied by however many neighbors he may have that arguably are within that same class. He must, in other *90 words, know and **2462 evaluate not only his own films, but those of any competitor within 1,000 feet. And neighboring theaters are not his only worry, since the list of regulated uses also includes "adult" bookstores, "Group 'D' Cabaret(s)," sellers of alcoholic beverages for consumption on the premises, hotels, motels, pawnshops, pool halls, public lodging houses, "secondhandstores," shoeshineparlors, and "taxi dance halls." The exhitor must master all these definitions. Some he will find very clear, of course; others less so. A neighboring bookstore is "adult," for example, if a "substantial or significant portion of its stock in trade" is "distinguished or characterized" in the same way as the films shown in an "adult" theater. The exhibitor's compounded task of applying the statutory definitions to himself and his neighbors, furthermore, is an ongoing one. At any moment he could become a violator of the ordinance because some neighbor has slipped into a "regulated use" classification. He must know, for example, if the adjacent hotel has opened a bar or shoeshine "parlor" on the premises, though he may still be uncertain whether the hotel as a whole constitutes more than one "regulated use." He must also know the moment when the stock in trade of neighboring bookstores and theaters comes to be of such a character, and predominance, as to render them "adult." Lest he let down his guard, he should remember that if he miscalculates on any of these issues, he may pay a fine or go to jail. [FN2] FN2. Official Zoning Ordinance of Detroit s 69.000. It would not be surprising if, under the circumstances, the exhibitor chose to forgo showing the film series altogether. Such deterrence of protected First Amendment activity in the "gray area" of a statute's possible *91 coverage is, of course, one of the vices of vagueness. A second is the tendency of vague statutory standards to grant excessive and effectively unreviewable discretion to the officials who enforce those standards. That vice is also present here. It is present because the vague standards already described are left to the interpretation and application of law enforcement authorities. [FN3] It is introduced even more dangerously by the indefinite standards under which city officials are empowered to grant or deny licenses for "adult" theaters, and also waivers of the 1,000-foot rule. [FN4] FN3. A special opportunity for arbitrary or discriminatory application of the ordinance is apparently supplied by the operation of the 1,000-foot rule. Presumably, only one of three "regulated uses" within a 1,000-foot area must be eliminated in order for the remaining two to become legal. For all that appears from the ordinance, the choice of which use to eliminate is left entirely to the enforcement authorities. FN4. These two features of the ordinance constitute prior restraints and are challengeable on that ground alone. Cf. Southeastern Promotions, Ltd. v. Page 23 Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). Since, for me, the most glaring defect in the operation of these restraints is the vagueness of the standards governing their applications, however, only the vagueness point is pursued here. All "adult" theaters must be licensed, and licenses are dispensed by the mayor. The ordinance does not specify the criteria for licensing, except in one respect. The mayor is empowered to refuse an "adult" theater license, or revoke it at any time, "upon proof submitted to him of the violation . . . , within the preceding two years, of any criminal statute ... or (zoning) ordinance . . . which evidences a flagrant disregard for the safety or welfare of either the patrons, employees, or persons residing or doing business nearby." Code of Detroit s 5- 2-3. *92 If the operation of an "adult" theater would violate the 1,000-foot rule, the exhibitor must obtain the approval not only of the mayor but of the City Planning Commission, which is empowered to waive the rule. It may grant a waiver if it finds that the operation of an "adult" theater, in addition to satisfying several more definite criteria, "will not be contrary to the public interest or injurious to nearby properties," or violative of "the spirit and intent" of the ordinance. **2463 II Just the other day, in Hynes v. Mayor of Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976), we reaffirmed the principle that in the First Amendment area " 'government may regulate . . . only with narrow specificity,1 " NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963), avoiding the use of language that is so vague that "men of common intelligence must necessarily guess at its meaning." Connally v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926). In Hynes we invalidated for its vagueness an ordinance that required "Civic Groups and Organizations," and also anyone seeking to "call from house to house ... for a recognized charitable ... or ... political campaign or cause," to register with the local police "for identification only." We found it intolerably unclear what "Groups and Organizations" were encompassed, what was meant by a "cause," and what was required by way of "identification." I fail to see how a statutory prohibition as difficult to understand and apply as the 1,000-foot rule for "adult" theaters can survive if the ordinance in Hynes could not. The vagueness in the licensing and waiver standards of this ordinance is more pernicious still. The mayor's power to deny a license because of "flagrant disregard" for the "safety or welfare" of others is apparently exercisable only over those who have committed some *93 infraction within the previous two years, [FN5] but I do not see why even those persons should be subject to standardless licensing discretion of precisely the kind that this Court so many times has condemned. See Shuttlesworth v. Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22.Ed.2d 162 (1969); Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302 (1958); Kunz v. New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280 (1951); Niemotko v. Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267 (1951); Saia v. New York, 334 U.S. 558, 68 S.Ct. 1148, 92 L.Ed. 1574 (1948); Schneider v. State, 308 U.S. 147, 163-164, 60 S.Ct. 146, 151- 152, 84 L.Ed. 155 (1939); Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939); Lovell v. Griffin, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949 (1938). For the exhibitor who must obtain a waiver of the 1,000-foot rule, the City Planning Commission likewise functions effectively as a censor, constrained only by its perception of the "public interest" and the "spirit and intent" of the ordinance. This Court repeatedly has invalidated such vague standards for prior approval of film exhibitions. See Interstate Circuit v. Dallas, 390 U.S. 676, 683, 88 S.Ct. 1298, 1302, 20 L.Ed.2d 225 (1968), and cases cited. [FN6] Indeed, a standard much like the waiver standard*94 in this case was the one found wanting in Gelling v. Texas, 343 U.S. 960, 72 S.Ct. 1002, 96 L.Ed. 1359 (1952) (censor could ban films "of such character as to be prejudicial to the best interests of the people of said City"). FN5. The ordinance empowers the mayor to act "upon proof submitted to him of (a) violation." It is possible that he may entertain evidence not only of convictions but also of violations themselves, even though these have not been otherwise adjudicated. Whether legal infractions must be otherwise adjudicated or not, the mayor clearly retains the power to revoke a license for "flagrant disregard," should infractions Page 24 occur at any time after the license's issuance. FN6. Interstate Circuit disposes of any argument that excessively vague standards may be permitted here because the film exhibitions are not banned entirely, but merely prohibited in a particular place. The ordinance invalidated in Interstate Circuit required exhibitors to submit films for official determination whether persons under 16 should be excluded from the film exhibitions. It thus threatened the exhibitor with a loss of only part of his audience. The effect of the present ordinance is more severe, since if the exhibitor has only one theater, he is completely foreclosed. See also Southeastern Promotions, Ltd. v. Conrad, 420 U.S., at 556 n. 8, 95 S.Ct., at 1245. It is true that the mayor and the Planning Commission review the applications of theaters, rather than individual films. It might also be argued that at least if they adhere to the "spirit and intent" of the ordinance, their principal concern will be **2464 with the blighting of the city scape, rather than that of the minds of their constituents. But neither of these aspects of the case alters its basic and dispositive facts: persons seeking to exhibit "adult," but protected, films must secure, in many cases, the prior approval of the mayor and City Planning Commission; they inevitably will make their decisions by reference to the content of the proposed exhibitions; they are not constrained in doing so by "narrowly drawn, reasonable and definite standards." Niemotko v. Maryland, 340 U.S., at 271, 71 S.Ct., at 327. This may be a permissible way to control pawnshops, pool halls, and the other "regulated uses" for which the ordinance was originally designed. It is not an acceptable way, in the light of the First Amendment's presence, to decide who will be permitted to exhibit what films in what places. Ill The Court today does not really question these settled principles, or raise any doubt that if they were applied in this case, the challenged ordinance would not survive. The Court reasons, instead, that these principles need not be applied in this case because the plaintiffs themselves are clearly within the ordinance's proscriptions, and thus not affected by its vagueness. Our usual practice, as the Court notes, is to entertain facial challenges based on vagueness and overbreadth by anyone subject to a statute's proscription. The reasons given for departing *95 from this practice are (1) that the ordinance will have no "significant deterrent effect on the exhibition of films protected by the First Amendment"; (2) that the ordinance is easily susceptible of "a narrowing construction"; and (3) that "there is surely a less vital interest in the uninhibited exhibition of material that is on the borderline between pornography and artistic expression than in the free dissemination of ideas of social and political significance." Ante, at 2447. As to the first reason, I disagree on the facts, as is clear from the initial section of this opinion. [FN7] As to the second, no easy "narrowing construction" is proposed, and I doubt that one exists, particularly since (due to the operation of the 1,000-foot rule) not only the "used for presenting" and "characterized by an emphasis" language relating to "adult" theaters, and the "flagrant disregard" and "public interest" language of the licensing and waiver provisions, but also the definitions of Other regulated uses must all be reduced to specificity. See also Hynes v. Mayor of Oradell, 425 U.S., at 622, 96 S.Ct., at 1761. ("we are without power to remedy the (vagueness) defects by giving the ordinance constitutionally precise content"). FN7. In Erznoznik v. City of Jacksonville, 422 U.S. 205, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975), the case on which the Court relies for the proposition that only statutes having a "significant deterrent effect" may be facially challenged, such an effect in fact was found to exist. The ordinance there at issue prohibited drive-in theaters from exhibiting films in which nude parts of the human body would be "visible from any public street or public place." We perceived a "real and substantial" deterrent effect in the "unwelcome choice" to which the ordinance put exhibitors: "either (to) restrict their movie offerings or construct adequate protective fencing which may be extremely expensive or even physically impracticable." Id., at 217, 95 S.Ct., at 2277. In the present case the second horn of the dilemma is even sharper: the construction (or acquisition) of an Page 25 entirely new theater. *96 As the third reason, that "adult" material is simply entitled to less protection, it certainly explains the lapse in applying settled vagueness principles, as indeed it explains this whole case. In joining Mr. Justice STEWART I have joined his forthright rejection of the notion that First Amendment protection is diminished for "erotic materials" that only a "few of us" see the need to protect. We should not be swayed in this case by the characterization of the challenged ordinance as merely a "zoning" regulation, or by the "adult" nature of the affected material. By whatever name, this ordinance prohibits the showing of certain films in certain places, imposing criminal sanctions **2465 for violation of the ban. And however distasteful we may suspect the films to be, we cannot approve their suppression without any judicial finding that they are obscene under this Court's carefully delineated and considered standards. END OF DOCUMENT 49 Pagel 216F.3d807 00 Cal. Daily Op. Serv. 4931,2000 Daily Journal D.A.R. 6581 (Cite as: 216 F.3d 807) United States Court of Appeals, Ninth Circuit. Philip YOUNG, Plaintiff-Appellee, v. CITY OF SIMI VALLEY, Defendant-Appellant. No. 97-56484. Argued and Submitted April 27, 1999 Filed June 20,2000 Individual whose applications for permit to open adult business were denied based on failure of his respective locations to comply with city ordinance, filed suit challenging constitutionality of ordinance. Plaintiffs motion for judgment as a matter of law on claims for declaratory and injunctive relief was granted by the United States District Court for the Central District of California, William J. Rea, J., 977 F.Supp. 1017, and city appealed. The Court of Appeals, Tashima, Circuit Judge, held that: (1) plaintiff had standing to challenge the "sensitive use veto" provision of the ordinance under the First Amendment, though his application was denied, in part, on another ground; (2) ordinance was facially invalid under the First Amendment as depriving potential adult business owners of reasonable alternative avenues of communication, to extent it allowed private parties to effectively veto an application by obtaining, at any time during the lengthy permitting process, an over-the-counter zoning permit for a sensitive use within the buffer zone around the applicant's site; but (3) it was premature to rule, as a matter of law, that the simultaneous availability of only four sites at which an adult business could operate in city was insufficient to allow for reasonable alternative avenues of communication. Affirmed, injunction vacated, and remanded. O'Scannlain, Circuit Judge, filed an opinion concurring in part and dissenting in part. West Headnotes [1] Federal Courts €=>776 170Bk776 Most Cited Cases The district court's grant of standing is reviewed de novo. [2] Constitutional Law €=^42.2(1) 92k42.2(l) Most Cited Cases Under the "overbreadth doctrine," a plaintiff may challenge an overly-broad statute or regulation by showing that it may inhibit the First Amendment rights of parties not before the court, even if his own conduct is not protected. U.S.C.A. Const.Amend. 1. [3] Constitutional Law €==>42.2(1) 92k42.2(l) Most Cited Cases Person whose application for permit to operate adult business was denied on basis, in part, of "sensitive use veto," pursuant to which, after the application was filed, a private party obtained an over-the-counter zoning permit for a bible study facility nearby that effectively blocked an adult use, had standing to challenge the sensitive use veto provision, under the First Amendment, as making the permit process prohibitively difficult and risky, though denial was also based nearby location of pre-existing "youth-oriented" karate studio, as plaintiff satisfied the Article III injury-in-fact requirement, in that he spent at least $45,000 and one year attempting to obtain a permit, only to be denied at the last minute. U.S.C.A. Const.Amend. 1. [4] Constitutional Law €=>42.2(1) 92k42.2(l) Most Cited Cases The overbreadth exception to the prudential limits on standing, allowing challenge to overly broad statute or regulation by showing that it may inhibit the First Amendment rights of parties not before the court, does not affect the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court's jurisdiction; rather, the exception only allows those who have suffered some cognizable injury, but whose conduct may not be protected under the First Amendment, to assert the constitutional rights of others. U.S.C.A. Const. Art. 3, § 1 et seq.; U.S.C.A. Const.Amend. 1. [5] Zoning and Planning C=>5.1 414k5.1 Most Cited Cases While local governments have a broad power to zone and control land use for the benefit of their communities, that power must be exercised within constitutional limits. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works [6] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases Zoning ordinances that are designed to combat the undesirable secondary effects of adult businesses, rather than to regulate the content of the speech itself, are reviewed under the standards applicable to "content neutral" time, place and manner regulations. U.S.C. A. Const. Amend. 1. [7] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases Where an ordinance regulating locations of adult businesses is justified without reference to the content of the regulated speech, it does not offend the fundamental principle that the government may not avoid the dissemination of offensive speech merely because it finds that speech unacceptable. U.S.C.A. Const. Amend. 1. [8] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [8] Zoning and Planning C^>76 414k76 Most Cited Cases The Renton test, under which an adult use zoning ordinance that is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication is constitutional, applied where it was undisputed that city s predominate intent in passing ordinance restricting the location of adult businesses was to preserve the character of neighborhoods, protect the integrity of public places, and effectively meet the impacts of urbanization upon the quality of life within the city, and not to suppress the expression of unpopular views. U.S.C.A. Const. Amend. 1. [9] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases An adult use zoning ordinance that is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication is constitutional, under free speech guarantee, and the dispositive question is whether the local government has effectively denied prospective adult business owners a reasonable opportunity to open and operate their enterprise within the city. U.S.C.A. Const.Amend. 1. [10] Federal Courts 170Bk776 Most Cited Cases Page 2 What constitutes a reasonable opportunity to open and operate an adult theater, under the Renton test of constitutionality of an adult use zoning ordinance, is a mixed question of fact and law which Court of Appeals reviews de novo. U.S.C.A. Const.Amend. 1. [11] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases In order to provide reasonable alternative avenues of communication, a zoning ordinance that limits the ability of an adult business to operate must provide adequate procedural safeguards necessary to ensure against undue suppression of protected speech, regardless of how that suppression is accomplished, and the procedure by which a city dispenses its permits may deprive potential businesses of reasonable alternative avenues of communication in the same way that a paucity of available sites would. U.S.C.A. Const. Amend. 1. [12] Constitutional Law 92k90.4(l) Most Cited Cases [12] Zoning and Planning €^>%() 414k86 Most Cited Cases A "sensitive use veto" provision of a permitting scheme for adult businesses was facially invalid under the First Amendment as depriving potential adult business owners of reasonable alternative avenues of communication, where the ordinance allowed private parties to effectively veto an application by obtaining, at any time during the lengthy permitting process, an over-the- counter zoning permit for a sensitive use within the buffer zone around the applicant's site, particularly in a city of 100,000, with only four potential simultaneously available sites, and at least one known, active opponent of adult businesses. U.S.C.A. Const. Amend. 1. [13] Constitutional Law €=>90(3) 92k90(3) Most Cited Cases It is unconstitutional for a local government to impose a procedural requirement that delegates to certain favored private parties the unfettered power to veto, at any time prior to governmental approval and without any standards or reasons, another's right to engage in constitutionally protected freedom of expression. U.S.C.A. Const. Amend. 1. [14] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases An inquiry into the reasonableness of alternative Copr. © West 2004 No Claim to Orig. U.S. Govt. Works avenues of communication, under Renton test of constitutionality under the First Amendment of adult use zoning ordinance, necessarily must be fact specific. U.S.C.A. ConstAmend. 1. [15] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases [15] Zoning and Planning €=>76 414k76 Most Cited Cases [15] Zoning and Planning C=^86 414k86 Most Cited Cases In order for an zoning ordinance restricting adult uses to be facially invalid, there need only be a realistic danger that the statute itself will compromise recognized First Amendment protections of parties not before the Court, and thus it was not dispositive that in the instant case there was an independent reason for the permit denial, in addition to challenged private "sensitive use" veto, as prospective adult business owners still reasonably may fear that another organization like the one that effectively vetoed the instant application will crop up every time that they attempt to obtain a permit, and thus refrain from applying, especially where few sites were available within the city. U.S.C.A. Const.Amend. 1. [16] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases [16] Zoning and Planning C=>86 414k86 Most Cited Cases Principle that the First Amendment does not require governing bodies to ensure the availability of a prospective adult business owner's preferred site did not support constitutionality of ordinance under which private party could effectively veto adult use application by obtaining an over-the-counter zoning permit for a "sensitive use" after an applicant buys or leases a site and files an application, merely because such party disagrees with the content of applicant's speech. U.S.C.A. Const.Amend. 1. [17] Constitutional Law 0^90.4(1) 92k90.4(l) Most Cited Cases While local governments are not required to assure adult businesses that they will be able to obtain their preferred sites at "bargain prices" in order to comply with the First Amendment, they also may not impose a procedural requirement that puts potential adult businesses at a severe disadvantage in the market. U.S.C.A. Const. Amend. 1. [18] Constitutional Law €=>90.4(3) 92k90.4(3) Most Cited Cases A licensing scheme regulating adult entertainment must contain at least two procedural safeguards in order to be constitutional; first, it must specify a reasonable time period in which the decision whether to issue the license must be made, and, second, it must provide for prompt judicial review. U.S.C.A. ConstAmend. 1. [19] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases A city cannot accomplish through private parties that which it is forbidden to do directly under the First Amendment, namely, block the establishment of adult businesses in the city. U.S.C.A. Const.Amend. 1. [20] Constitutional Law €==>46(1) 92k46(l) Most Cited Cases It was premature to rule, as a matter of law, that the simultaneous availability of only four sites at which an adult business could operate in city, under its zoning ordinance, was insufficient to allow for reasonable alternative avenues of communication, as required by the First Amendment, where there were no current adult businesses in the city and the city had never had an adult use applicant other than the present plaintiff. U.S.C.A. ConstAmend. 1. [21] Constitutional Law €=^90.4(1) 92k90.4(l) Most Cited Cases An adult use zoning ordinance which allows only three or four sites for adult use to exist simultaneously is not per se unconstitutional; court must perform a fact-specific inquiry to determine whether the number of potential sites provides reasonable alternative means of communication, given the particular characteristics of the city. U.S.C.A. ConstAmend. 1. [22] Constitutional Law C= 92k90.4(l) Most Cited Cases 9.4(1) There is no bright line rule that an ordinance is constitutional when the number of locations available for adult businesses equals or exceeds the number of existing adult businesses, as this "supply and demand" analysis is insufficient to account for the chilling effect that an adult use zoning ordinance may have on prospective business owners. U.S.C.A. ConstAmend. 1. [23] Constitutional Law €=>90.4(1) 92k90.4(l) Most Cited Cases Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 4 Supply and demand should be only one of several factors that a court considers when determining whether an adult business has a reasonable opportunity to open and operate in a particular city, as required by the First Amendment, and a court should also look to a variety of other factors including, but not limited to, the percentage of available acreage theoretically available to adult businesses, the number of sites potentially available in relation to the population, community needs, the incidence of adult businesses in other comparable communities, and the goals of the city plan. U.S.C.A. ConstAmend. 1. *811 Bert H. Deixler, Proskauer Rose, Los Angeles, California, for the defendant-appellant. Roger Jon Diamond, Santa Monica, California, for the plaintiff-appellee. Appeal from the United States District Court for the Central District of California; William J. Rea, District Judge, Presiding. D.C. No. CV 94-08305 WJR. Before: FERGUSON, O'SCANNLAIN, and TASHIMA, Circuit Judges. park playground, church or other place of worship, or any noncommercial establishment operated by a bona fide religious organization." Simi Valley Mun.Code § 9-1.2003(d); see also Simi Valley Mun.Code § 9- 1.2002(m). A sensitive use disqualifies an adult use permit application if it is located within either 500 feet or 1,000 feet of the prospective adult use site, depending on the particular sensitive use involved. I. FACTUAL AND PROCEDURAL BACKGROUND Simi Valley, located approximately 35 miles northwest of Los Angeles, has a population of slightly over 100,000 residents and occupies 34 square miles in area. There has never been an adult business in Simi Valley. In 1978, Simi Valley adopted its first zoning ordinance regulating the location of adult businesses; however, a federal court found the ordinance unconstitutional. [FN2] Thereafter, in or around 1988, Simi Valley officials began drafting another zoning ordinance to regulate adult businesses within the City. Opinion by Judge TASHIMA; Partial Concurrence and Partial Dissent by Judge O'SCANNLAIN. FN2. The reason that the first adult use zoning ordinance was declared unconstitutional is unclear from the record. TASHIMA, Circuit Judge: The City of Simi Valley ("Simi Valley" or the "City") appeals from the district court's order declaring its adult business zoning ordinance unconstitutional and granting an injunction barring its enforcement. We must decide two issues: whether a zoning ordinance that allows "sensitive use" [FN1] establishments to apply for an over-the-counter zoning clearance and disqualify a pending adult use permit is constitutional; and whether the existence of four potential, simultaneously available adult use sites in a city where only one application is pending is sufficient to provide alternative avenues of communication under the test set forth in City ofRenton v. Playtime Theatres, Inc., 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986). We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's judgment that the ordinance is unconstitutional, albeit on a narrower ground. FN1. Under the Simi Valley ordinance, "sensitive use" includes any "youth-oriented business" or any "public or private school, In late 1992, before a new ordinance was adopted, appellee Philip Young put a $20,000 down payment on a property at 999 Los Angeles Avenue for the purpose of opening an adult business and he subsequently applied for an adult use zoning permit On January 28, 1993, Young received a zoning clearance from the City, and applied for and received a business tax certificate. On February 9, the City rescinded Young's zoning clearance and requested additional information to determine whether his proposed use was acceptable. Young submitted the requested information approximately two weeks later. In *812 the interim, however, the City had adopted Ordinance No. 791, an emergency ordinance which adopted a moratorium on all adult uses throughout the City. According to the testimony of the City Attorney, the moratorium was motivated, at least in part, by Young's application. On May 3, 1993, Simi Valley adopted Ordinance No. 796, a permanent zoning scheme regulating all adult businesses. [FN3] Under the ordinance, no adult business is permitted to locate within 500 feet of any residential zone or youth-oriented business, [FN4] Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS within 1,000 feet of any other adult business, or within 1,000 feet of any "public or private school, park playground, church or other place of worship, or any noncommercial establishment operated by a bona fide religious organization." Simi Valley Mun.Code § 9-1.2003(d). Additionally, before one may open or expand an adult business, the applicant is required to obtain a special use permit, which may take from several months to a year to obtain. See Simi Valley Mun.Code§ 9.1-2004. FN3. Adult businesses within the scope of the ordinance include "adult book stores, adult cabarets, adult hotels and motels, adult massage parlors, adult motion picture arcades, adult motion picture theaters, adult mini-motion picture theaters, adult video stores, model studios, and sexual encounter centers." Simi Valley Mun.Code § 9-1.2003; see also Simi Valley Mun.Code § 9-1.2002(a)-(j). FN4. A "youth-oriented business" is defined as a business activity which "caters predominantly to on-site patronage by persons under eighteen (18) years of age... and which is open for such business not less than twenty-five (25) hours per week." Simi Valley Mun.Code § 9-1.2002(m). After the ordinance was passed, approximately 0.5 percent of the land within Simi Valley was available for adult business sites. Further, although there were between 35 and 120 potential adult use locations, the City conceded that, at most, only four adult use sites could be available simultaneously because of the 1,000-foot buffer zone requirement between adult establishments. Because the new ordinance prohibited an adult business at 999 Los Angeles Avenue, Young abandoned his project and, on December 12,1994, filed the instant lawsuit challenging the ordinance's constitutionality. While the lawsuit progressed, Young searched for an acceptable alternate location for his proposed business. He settled upon 585 East Los Angeles Avenue. Before entering into a lease on the property, however, Young contacted Simi Valley officials to determine whether he would be permitted to open an adult business at that location. The City conducted a preliminary site inspection of the area and determined that there were no incompatible uses under the ordinance at that time. The City Attorney cautioned, however, that a final determination regarding compliance with the ordinance could be made only after specific land development plans were submitted. Based on this favorable initial response by the City, Young entered into a lease for the property at 585 East Los Angeles Avenue for a monthly rent of $3,174 with the intention of opening an adult theater there. He applied for a special use permit to operate an adult business and he also agreed to stay the lawsuit pending the approval of his application. After receiving comments from various city agencies, Simi Valley requested that Young provide additional information, including noise mitigation and traffic studies. Neither of these studies had been required by the original special use permit application, but Young nonetheless submitted the requested information on August 14,1995. He was informed on September 14 that certain pieces of information were insufficient, and on November 9, Young resubmitted his plans. Throughout the process, Young was required to hire both an outside traffic engineer and a sound engineer. While the total cost of the permitting process is unclear from the record, Young spent at least $45,000 attempting to obtain *813 a permit to operate an adult theater on the 585 East Los Angeles property. On December 8, 1995, exactly 30 days after Young re-submitted his plans, Simi Valley notified Young that his application was complete, [FN5] but denied his application because it did not comport with the buffer zone requirements. The City informed Young that the proposed site violated the ordinance in two ways. FN5. Under the ordinance, Simi Valley has 30 days after submission to deem an application complete. Once the application is complete, the City has 94 days to act upon the application. First, the proposed site violated the 1,000-foot buffer zone around schools and noncommercial establishments operated by a bona fide religious organization. See Simi Valley Mun.Code § 9-1.2003(d). On December 7, 1995, the day before the City deemed Young's application complete, a newly- established religious organization, the Joshua Institute, had filed a zone clearance application to operate an adult bible study class at 665 East Los Angeles Avenue. The Joshua Institute was to meet for Bible study one hour per week, on Thursday mornings from 6:30 to 7:30 a.m., and its space was furnished only with several folding chairs. The City, having concluded that the Institute's Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 6 application complied with all requirements, granted it a zone clearance the following day, on December 8, 1995. The Joshua Institute is headed by Norman Walker, President of the Simi Valley Board of Education, Associate Pastor of the First Baptist Church in Thousand Oaks, and an admitted opponent of Young's proposed establishment. Walker testified at trial that he knew where Young intended to open his adult business and believed that opening the Joshua Institute would disqualify Young's adult business permit application. [FN6] FN6. The dissent suggests that "significant evidence" exists that Walker "had no idea" that a permit to operate the Joshua Institute would stop Young from obtaining a zoning permit. Slip op. at 825. This suggestion, however, is belied by the record. Walker testified, as follows: Q: Did you believe... that your facility would disqualify Mr. Young's proposed adult theater? A: I didn't have any direct knowledge that it would, no. Q: But you answered my question not directly. You said you had no direct knowledge. I'm asking you for your belief. Did you believe on December 7th, 1995, when you obtained zoning clearance for the Joshua Institute, that that would disqualify Mr. Young's proposed adult theater? A: Yes, I did. Q: Did you believe it? A: Yes, I did. Rptr's. Tr., Vol. 4, pp. 39-40. Second, a subsequent investigation of the area revealed that a karate school within 500 feet of Young's site was a "youth-oriented" business for purposes of § 9-1.2003(d). The karate school was in existence both when the City Attorney informed Young that no sensitive uses were within the site's buffer zone and when Young first applied for the zoning permit. Although Young had been aware of the karate school's existence, he did not know that it qualified as a youth oriented business, and the City never advised him of that fact at any time after its preliminary investigation of the site. The City informed Young that either the Joshua Institute or the karate studio independently would have prevented him from obtaining a special use permit for that site. [FN7] FN7. In light of the City's reliance on the two alternative reasons as grounds for refusing to approve Young's special use permit application, the dissent's characterization of the application of the sensitive use veto to Young as "theoretical" and "hypothetical," slip op. at 823-24, is an inaccurate simplification of the record. On March 6, 1996, the City Planning Commission rejected Young's application. Over Young's protestations, it ruled that a proposed site's compliance with the buffer zone requirements was to be determined as of the date of the project's approval, rather than as of the date when the application *814 was filed. In any case, the Commission noted that Young's application would have been denied because the karate school was in operation when Young filed his application. Young appealed to the City Council, which affirmed the Planning Commission's decision. In September 1996, the district court lifted the stay of Young's lawsuit, and Young amended his original complaint. Young conceded that the Simi Valley ordinance was a time, place, and manner restriction and that the City had a substantial interest in enacting an adult business zoning ordinance. Young argued, however, that under the test set forth in Renton, 475 U.S. at 46-50,106 S.Ct. 925, the Simi Valley ordinance does not allow reasonable alternative avenues of communication. Simi Valley countered that its regulation was valid under Renton. The case was tried to a jury in May, 1997, but the jury was unable to reach a verdict and the district court declared a mistrial. On June 9, 1997, Young filed a renewed motion for judgment as a matter of law. The district court granted the motion based on two grounds. See Young v. City of Simi Valley, 977 F.Supp. 1017, 1018 (C.D.Cal.1997). The district court first concluded that the ordinance was unconstitutional because the de facto veto power given to sensitive use establishments ("sensitive use veto") [FN8] makes it "unreasonably difficult" for an adult use applicant to complete the permit process. Id. at 1020. Testimony by a City official revealed that at any point during the application process a sensitive use establishment could apply for and receive an over-the-counter zoning approval and block Young from completing his project. Discussing this feature of the ordinance, the district court stated that "a system whereby third parties can effectively nullify the few areas set aside as 'reasonable alternative avenues' " of communication is unconstitutional. Id. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page? FN8. We use the term "sensitive use veto" to refer to the ability of a sensitive use establishment, established or relocated within an adult use permit applicant's buffer zone after that application has been filed, to disqualify that applicant by obtaining an over-the-counter zoning permit before the adult use permit application process can be completed. Second, the district court found that four potential sites are not a reasonable number of alternative avenues of communication as a matter of law. Id. at 1021 -22. The court then "permanently enjoined [Simi Valley] from enforcing its current zoning scheme with respect to the distance and buffer zone requirements currently in effect for adult theaters." Id. at 1022. II. DISCUSSION We conclude that the challenged permitting scheme for adult businesses in Simi Valley is facially invalid under the First Amendment. The ability of private parties to obtain an over-the-counter zoning permit that effectively blocks an adult use, at any time during the lengthy permitting process for adult businesses, deprives a potential adult business owner of "reasonable alternative avenues of communication" as required by the Supreme Court's holding inRenton, 475 U.S. at 50, 106 S.Ct. 925. We do not find, however, that there is an inadequate number of permissible sites for adult businesses in Simi Valley, as a matter of law. The record simply does not demonstrate that four potential sites is insufficient in a city with the particular characteristics of Simi Valley. A. Standing [1] Young asserts that the ordinance is invalid both facially and as applied by Simi Valley. Since we conclude that the ordinance is facially invalid, however, we need not reach the issue of whether the statute is unconstitutional as applied to Young. We review the district court's grant of standing de novo. See Johns v. County of San Diego, 114 F.3d 874, 876 (9th Cir.1997). *815 [2][3] Under the overbreadth doctrine, a plaintiff may challenge an overly-broad statute or regulation by showing that it may inhibit the First Amendment rights of parties not before the court, even if his own conduct is not protected. See 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108, 1111 (9th Cir. 1999); see also Broadrickv. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). The overbreadth doctrine is based on the observation that "the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992); see also Lindv. Grimmer, 30 F.3d 1115, 1122 (9th Cir. 1994). Thus, the City's, and the dissent's, contention that Young cannot sustain a challenge to the ordinance based on the sensitive use veto because of the pre-existing karate studio is mistaken. In order to have standing to bring a facial challenge, Young must demonstrate only that the ordinance "createfs] an unacceptable risk of the suppression of ideas" and that he has suffered an injury. Nunez v. City of San Diego, 114 F.3d 935,949 (9th Cir. 1997) (quoting Secretary of State v. Joseph H. Munson Co., 467 U.S. 947, 965 n. 13, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984)). Young asserts that people will be deterred from attempting to obtain an adult use permit—and thus engage in a protected activity—because the ordinance makes the process prohibitively difficult and risky. Because, as Young contends, a sensitive use could preempt an adult establishment for any reason at any time before the approval of the adult use permit, there exists a "realistic danger that the [ordinance] itself will significantly compromise recognized First Amendment protections of parties not before the Court." Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). [4] The overbreadth exception to the prudential limits on standing, however, "does not affect the rigid constitutional requirement that plaintiffs must demonstrate an injury in fact to invoke a federal court's jurisdiction." 4805 Convoy, 183 F.3d at 1112 (quoting Bordellv. GeneralElec. Co., 922F.2d 1057, 1061 (2d Cir. 1991)). Rather, the exception only allows those who have suffered some cognizable injury, but whose conduct may not be protected under the First Amendment, to assert the constitutional rights of others. Here, Young satisfies the injury-in-fact requirement. He has applied for and has been denied an adult use permit twice in Simi Valley, including once under the challenged ordinance. He spent at least $45,000 and one year attempting to obtain a permit, only to be denied at the last minute. The economic loss that Young has suffered is a cognizable injury and is sufficient to satisfy the Article III standing requirement. See, e.g., Clinton v. City of New York, 524 U.S. 417, 432-33,118 S.Ct. 2091,141 L.Ed.2d 393 (1998) ("The Court routinely recognizes [ ] economic injury resulting from governmental actions... as sufficient to satisfy the Article III 'injury-in-fact' requirement.") (internal Copr. © West 2004 No Claim to Orig. U.S. Govt. Works PageS quotation marks and citations omitted). B. Sensitive Use Veto [5] The Supreme Court has held that the right to open and operate an adult theater featuring topless, exotic or nude dancing is protected by the First Amendment. SeeSchadv. Borough of Mount Ephr aim, 452 U.S. 61, 65, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981); see also Kev, Inc. v. Kitsap County, 793 F.2d 1053, 1058 (9th Cir. 1986) ("Courts have considered topless dancing to be expression, subject to constitutional protection within the free speech and press guarantees of the first and fourteenth amendments."). While local governments have a broad power to zone and control land use for the benefit of their communities, that power must be exercised within constitutional limits. See *816Schad, 452 U.S. at 68, 101 S.Ct. 2176 (citing Moore v. City of East Cleveland, 431 U.S. 494,514,97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)). Those constitutional limits have been defined by the Supreme Court—and refined by the lower courts—in a series of cases in which local zoning ordinances that limited or prohibited adult businesses were challenged. See Renton, 475 U.S. 41, 106 S.Ct. 925, 89 L.Ed.2d 29; Youngv. AmericanMini Theatres, Inc., 427 U.S. 50,96 S.Ct. 2440,49 L.Ed.2d 310 (1976); see also Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524 (9th Cir. 1993); Walnut Properties, Inc. v. CityofWhittier, 861 F.2d 1102 (9th Cir. 1988). 1. [6] [7] Zoning ordinances that are "designed to combat the undesirable secondary effects" of adult businesses, rather than to regulate the content of the speech itself, are reviewed under the standards applicable to "content neutral" time, place and manner regulations. Renton, 475 U.S. at 49, 106 S.Ct. 925; see also Colacurcio v. City of Kent, \ 63 F.3d 545,551 (9th Cir. 1998). Where an ordinance is "justified without reference to the content of the regulated speech," it does not offend the fundamental principle that the government may not avoid the dissemination of offensive speech merely because it finds that speech unacceptable. Renton, 475 U.S. at 48,106 S.Ct. 925 (quoting Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065,82L.Ed.2d221 (1984)); see also American Mini Theatres, 427 U.S. at 71 n. 34, 96 S.Ct. 2440. [8] We agree with the district court and the parties that the Renton test applies here. Simi Valley Municipal Code § 9-1.2001 states that the purpose of the ordinance is to avoid "certain objectionable side effects which render such adult businesses incompatible with residential areas, schools, places of worship, and other family and youth-oriented uses." No one disputes that the City's "predominate" intent in passing the ordinance was to "preserve the character of neighborhoods, protect the integrity of public places, and effectively meet the impacts of urbanization upon the quality of life within the City" and not to suppress the expression of unpopular views. Simi Valley Mun.Code § 9-1.2001; see Renton 475 U.S. at 48, 106 S.Ct. 925. [9] Under Renton, an adult use zoning ordinance that is designed to serve a substantial governmental interest and allows for reasonable alternative avenues of communication is constitutional. [FN9] See id. at 50, 106 S.Ct. 925; see also Crawford v. Lungren, 96 F.3d 380, 384 (9th Cir.1996). Young does not dispute that the City's interest in preserving the quality of urban life is a substantial government interest. Rather, Young challenges the ordinance on the ground that it denies potential adult business owners reasonable alternative avenues of communication under the First Amendment. First, Young asserts that a sensitive use establishment's ability to obtain a zoning clearance within a proposed adult facility's buffer zone after its application is pending, impermissibly chills protected freedom of expression. Second, Young contends that the four locations available under the ordinance are too few to amount to a reasonable number of sites, *817 even assuming that none of the sites were defeated at the last minute by a sensitive use. FN9. The First Amendment right to dance completely nude in public recently has been restricted further by the Supreme Court in City ofEriev. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000). In Erie, the Court upheld an ordinance that completely banned nude dancing in all public places, including businesses open to the public. See id. at 1388. Notably, however, the Court did not overrule Renton, and the dissent agrees that, because the Simi Valley ordinance applies to all adult businesses, it is Renton, not Erie, that controls the outcome of this case. Slip op. at 6552. Our inquiry, therefore, still is limited to whether Simi Valleys ordinance deprives a potential adult business owner of "a reasonable opportunity to own and operate an adult theater within the city," Renton, 475 U.S. at 54,106 S.Ct. 925, notwithstanding the dissent's lengthy speculation of how Erie might be applied in a different case. [10] The dispositive question when deciding whether Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 9 an ordinance leaves open adequate alternative avenues of communication is "whether the local government has effectively denied [prospective adult business owners] ... a reasonable opportunity to open and operate their enterprise within the city." Renton, 475 U.S. at 54,106 S.Ct. 925; see also Topanga Press, 989 F.2d at 1529. What constitutes a reasonable opportunity to open and operate an adult theater is a mixed question of fact and law which we review de novo. See Walnut Properties, 861F.2datll08. Whether an ordinance that allows a religious organization, school, or other sensitive use establishment to prevent an adult use, at any time during the permitting process, denies a potential adult business owner a "reasonable opportunity to open and operate" his business is an issue of first impression. All of the previous cases that have defined the contours of the "reasonable alternative avenues of communication" test have focused on the geographical area or the number of sites available for adult uses, and not on the procedure by which the permit is granted or denied. [11] Importantly, however, the Court in Renton did not expressly limit its "reasonableness" inquiry to the number of available sites within a city. See 475 U.S. at 53-54, 106 S.Ct. 925. The procedure by which a city dispenses its permits may deprive potential businesses of reasonable alternative avenues of communication in the same way that a paucity of available sites would. See Baby Tarn & Co. v. City of Las Vegas, 199 F.3d 1111, 1114 (9th Cir.2000) ("Baby Tarn //") (holding ordinance which set no time limit for city to act on adult bookstore's license application unconstitutional); cf. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215,228,110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (recognizing that a lack of procedural safeguards may result in the unconstitutional suppression of protected speech). In order to provide reasonable alternative avenues of communication, a zoning ordinance that limits the ability of an adult business to operate must provide "adequate procedural safeguards necessary to ensure against undue suppression of protected speech." Baby Tarn & Co. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998) ('Baby Tarn I "). While a city may adopt reasonable regulations regarding the zoning of adult theaters, such regulations must not unreasonably restrict or interfere with the right of an adult use applicant to operate within a city, regardless of how that interference is accomplished. 2. [12][13] We conclude that the Simi Valley ordinance, as interpreted by the City, denies an adult business owner-applicant a reasonable opportunity to open and operate an adult enterprise in Simi Valley. S ignificantly, the Simi Valley Planning Commission has ruled that the buffer zone requirement between adult businesses and sensitive uses must be satisfied as of the date of a project's approval, not just as of the application's filing date. It is this interpretation of the ordinance that gives rise to the sensitive use veto. It is, however, unconstitutional for a local government to impose a procedural requirement that delegates to certain favored private parties the unfettered power to veto, at any time prior to governmental approval and without any standards or reasons, another's right to engage in constitutionally protected freedom of expression. Cf. FW/PBS, 493 U.S. at 223, 110 S.Ct. 596 (holding that a licensing scheme for adult businesses that created the risk of arbitrary denials was an unconstitutional prior restraint); see also Eubank v. City of Richmond, 226 U.S. 137, 144^5, 33 S.Ct. 76, 5 7 L.Ed. 156(1912) (striking down a zoning ordinance that required the city's Building Committee to establish set-back lines for a given piece of property whenever requested to *818 do so by two-thirds of the adjacent property owners). Thus, the present system, under which private third parties may effectively nullify, for any reason, the few areas in the City set aside for potential adult uses, makes it unreasonably difficult, if not impossible, for an adult use applicant to complete the permit process. [14] An inquiry into the reasonableness of alternative avenues under Renton necessarily must be fact specific. See, e.g., CLR Corp. v. Henline. 702 F.2d 637, 639 (6th Cir.1983) (holding an ordinance unconstitutional, even though it was virtually identical to another constitutional ordinance, because the effect of each ordinance was different in each city). In a city of 100,000, with only four potential simultaneously available sites, [FN10] and at least one known, active opponent of adult businesses, the heightened risk to establishing an adult business created by the sensitive use veto chills protected speech in an unconstitutional manner. [FN11] FN10. Although we hold that four potential, simultaneously available sites are not inadequate as a matter of law, see Part II.C, infra, the number of available sites is relevant in deciding whether the sensitive use veto poses a realistic danger that protected speech will be chilled. The fact that so few sites are available makes it far more likely that a person or group of persons could exclude all adult businesses from Simi Valley, if they so desired. Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 10 FN11. In addition, because Simi Valley has never had an adult use business, any proposed adult business is likely to attract publicity surrounding its permit application and the applicant's opponents can easily find out about the proposed permit and attempt to stop it by applying for an over-the-counter sensitive use permit. Young's application, for example, garnered at least some local publicity. On June 10, 1995, the Simi Valley Star ran a two-page article featuring Young's proposed adult business. The article discussed the permitting process, identified the location of the proposed site, and explained that the business could not be located near schools, parks, or churches. The City and the dissent contend that the concern over the sensitive use veto is founded on a "hypothetical event" and that there is no evidence to establish a "tangible probability" that a sensitive use establishment will seek to disqualify any proposed adult business. This argument is puzzling since Simi Valley actually issued a disqualifying over-the-counter permit to the Joshua Institute the same day that Young's application was deemed complete. Furthermore, Walker, the head of the Joshua Institute, testified that he believed that the Bible study group would preclude Young's business from opening as planned. Hence, the risk that a sensitive use will veto potential adult business owners and deliberately frustrate their efforts by locating a sensitive use nearby is real and not merely hypothetical. [15] Moreover, in order for an ordinance to be facially invalid there need only be a "realistic danger that the statute itself will compromise recognized First Amendment protections of parties not before the Court." Taxpayers for Vincent, 466 U.S. at 801, 104 S.Ct. 2118. Thus, contrary to the City's and the dissent's contention, it is not dispositive that the karate school was an independent reason for the permit denial in this case. Prospective adult business owners still reasonably may fear that another organization like the Joshua Institute will crop up every time that they attempt to obtain a permit and thus refrain from applying. This is especially true where so few sites are available within the City. Anyone wishing to suppress this form of speech could monitor adult business applications and establish a nearby sensitive use before the adult business' application process had been completed. Thus, in this case, there is a realistic danger that the ordinance will "compromise recognized First Amendment protections" of those people who wish to operate adult businesses in Simi Valley. Taxpayers for Vincent, 466 U.S. at 801, 104 S.Ct. 2118. The deterrent effect therefore is both "real and substantial," because at any moment a project can be defeated by a *819 private individual or group who wishes to establish a park, Bible study group, or day care center. American Mini Theatres, 427 U.S. at 60,96 S.Ct. 2440. [ 16] [! 7] The City also argues that because the case law does not impose a duty upon governing bodies to ensure the availability of a prospective adult business owner's preferred site, see Renton, 475 U.S. at 54, 106 S.Ct. 925, the sensitive use veto must be constitutionally permissible. We reject this contention. In Renton, the respondents argued that almost all of the available land under the ordinance already was occupied by existing businesses or was not currently for sale or lease. See id at 53, 106 S.Ct. 925. The Court held that potential adult business owners must "fend for themselves in the real estate market, on an equal footing with other prospective purchasers and lessees." Id. at 54, 106 S.Ct. 925. Here, Young is not asking for special treatment. In fact, he already had obtained a lease and was ready to move forward with his project. A potential adult business owner is not on "equal footing" with other businesses, however, when his permit can be defeated after he buys or leases a site, merely because another member of the community disagrees with the content of his speech. This is not the type of market competition to which the Court in Renton was referring. Thus, while local governments are not required to assure adult businesses that they will be able to obtain their preferred site at "bargain prices" in order to comply with the First Amendment, they also may not impose a procedural requirement that puts potential adult businesses at a severe disadvantage in the market. Id 3. [18] Our conclusion that the sensitive use veto in this case is unconstitutional is buttressed by several other lines of cases. For example, the doctrine of prior restraint—an area of law also dealing with freedom of speech under the First Amendment-provides a helpful analogy. "A prior restraint exists when the enjoyment of protected expression is contingent on the approval of government officials." Baby Tarn /, 154 F.3d at 1100. When an approval process lacks procedural safeguards or is completely discretionary, there is a danger that protected speech will be suppressed impermissibly because of the government official's, or, as here, a delegated private party's, distaste for the content of the speech. See FW/PBS, 493 U.S. at 226, 110 S.Ct. 596. Thus, a licensing scheme regulating adult entertainment must contain at least two procedural safeguards in order to be constitutional. See 4805 Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 11 Convoy, 183 F.3d at 1113. First, it must specify a reasonable time period in which the decision whether to issue the license must be made. Second, it must provide for prompt judicial review. See id. [19] The Simi Valley ordinance contains both of the aforementioned safeguards and Simi Valley officials have almost no discretion to deny a permit after the application is complete and the requirements are met. See Simi Valley Mun.Code §§ 9-1.1103 (as amended); 9-1.2004. In this way, it is not an unconstitutional prior restraint. Rather, the ordinance delegates that discretion to private parties who may defeat a proposed adult business permit and effectuate a complete ban on certain protected forms of expression. We hold that a city cannot accomplish through private parties that which it is forbidden to do directly under the First Amendment—namely, block the establishment of adult businesses in Simi Valley. See Rutan v. Republican Party, 497 U.S. 62,77-78,110 S.Ct. 2729,111 L.Ed.2d 52 (1990) (stating that "[w]hat the First Amendment precludes the government from commanding directly, it also precludes the government from accomplishing indirectly"). A similar statute involving a private party veto was struck down pursuant to the Establishment Clause in *S20Larkin v. Grendel's Den, Inc., 459 U.S. 116, 103 S.Ct. 505, 74 L.Ed.2d 297 (1982). In Larkin, the Supreme Court held unconstitutional a Massachusetts statute that gave churches and schools the power effectively to veto applications for liquor licenses within a 500- foot radius of the church or school. Although the challenge in Larkin concerned the Establishment Clause rather than the Speech Clause, the underlying problem in both cases is the same. The Court in Larkin was concerned that the churches' power under the statute was "standardless, calling for no reasons, findings, or reasoned conclusions." Id. at 125, 103 S.Ct. 505. Similarly, Simi Valley has given an implicit power to any potential sensitive use, perhaps impermissibly motivated by the desire to keep the city free of this form of speech, to veto an adult establishment. [FN12] Although Larkin is distinguishable because the churches in that case had an explicit veto power, the record in this case demonstrates that it is relatively easy for certain types of sensitive uses to obtain over-the-counter permits and, thus, effectively veto the prospective use. FN12. As in Larkin, there also is a substantial risk that if an adult business ever opens in Simi Valley, subsequent applicants might be frustrated by those who desire to restrain competition. Finally, courts have been concerned in contexts outside the First Amendment about local governments' attempts to delegate to private landowners the power to determine how another private party may use his or her land "uncontrolled by any standard or rule prescribed by legislative action." Geo-Tech Reclamation Indus., Inc. v. Hamrick, 886 F.2d 662, 665 (4th Cir.1989) (holding unconstitutional a statute that gave local residents de facto veto power over the landfill permitting process) (quoting Washington ex rel. Seattle Title Trust Co. v. Roberge, 278 U.S. 116,49 S.Ct. 50, 73 L.Ed. 210 (1928) (holding unconstitutional a zoning ordinance that gave certain landowners the unlimited right to prevent a trustee from using its land for a proposed home)); see also Eubank, 226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (striking down statute that allowed 2/3 of property owners to direct street committee to establish a building line on other's property). Each of those cases held that the delegation of power to private individuals to decide what others could do with their land was "repugnant to the due process clause." Roberge, 278 U.S. at 122. The major concern in these cases was that administrative decision-making would be "subservient to selfish or arbitrary motivations or the whims of local taste." Geo-Tech, 886 F.2d at 666; see also Roberge, 278 U.S. at 122. Here, the concern is even greater for two reasons. First, unlike in Roberge, Eubank and Geo-Tech, the delegation here infringes on others' right to engage in a fundamental First Amendment activity. SeeSchad, 452 U.S. at 65, 101 S.Ct. 2176; Kev, 793 F.2d at 1058. The ability to open a landfill or build one's house to certain specifications are not forms of expression protected by the Constitution in the same way that freedom of expression is protected. Second, because the protected activity in this case is extremely controversial, there exists an even greater risk that private parties will use then" power to block adult uses for the purpose of suppressing this speech. All of these cases lend support to the conclusion that by giving private parties the right to control the content of speech with respect to public zoning laws, Simi Valley has unreasonably restricted alternative avenues of communication under Renton. We therefore hold that the sensitive use veto provision of the Simi Valley ordinance is unconstitutional on its face. C. Number of Sites [20] We now turn to the issue of whether the number of Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 12 simultaneously available sites under the ordinance is sufficient to allow for "reasonable alternative avenues of communication." Renton, 475 U.S. at 50, 106 S.Ct. 925. The district *821 court held that, "as a matter of general law," four possible simultaneous sites "simply does not amount to a reasonable number of alternative means of communication" to satisfy the test in Renton. [FN13] Young, 977 F.Supp. at 1022. The court then enjoined Simi Valley from enforcing the buffer zone requirements contained in its adult use zoning scheme. Id. This holding was erroneous. While recognizing that Renton requires a "case by case analysis," the district court did not perform a fact-specific inquiry to determine whether the number of potential sites is reasonable, given the particular characteristics of Simi Valley, including its size and make-up, as required by Renton. Id. at 1019; see, e.g., CLR Corp., 702 F.2d at 639; see also University Books & Videos, Inc. v. Metropolitan Dade County, 33 F.Supp.2d 1364, 1371 (S.D.Fla.1999) (noting that reviewing court must "determine whether the number of sites that potentially could exist under the ordinance is reasonable, given the characteristics of the city or county being regulated"). FN13. There is some disagreement regarding the relevant number of sites available for adult businesses. There are presently a total of 35- 120 sites where an adult business potentially could locate in Simi Valley. Because of the buffer zone requirement that each adult business must be at least 1,000 feet from another, however, only three or four adult use sites are simultaneously available under the ordinance. Both Topanga Press and Walnut Properties emphasize that it is appropriate to examine the number of adult businesses that can simultaneously operate, rather than the number of different sites at which any one adult business could locate, assuming that there were no others in existence. See Topanga Press, 989 F.2d at 1533; Walnut Properties, 861 F.2d at 1108-09. For purposes of this appeal, we will assume, as did the district court, that there are four simultaneously available sites for adult businesses. Because there are no current adult businesses in Simi Valley and the City has never had an adult use applicant other than Young, we think it is premature to rule, as a matter of law, that the number of sites at which an adult business could operate is insufficient. While we recognize that the lack of demand may be correlated to the chilling effect of the ordinance as written, it is unclear whether the deletion of the sensitive use veto provision will cause the demand for adult businesses in Simi Valley to rise. The factual record is devoid of any evidence that the number or location of potential, simultaneously available sites, rather than the sensitive use veto provision, has denied reasonable avenues of communication for those who wish to engage in protected speech of the type regulated by the ordinance. Since Renton, this court has twice held local zoning ordinances unconstitutional because they did not provide sufficient alternative sites for adult businesses to locate. See Topanga Press, 989 F.2d 1524; Walnut Properties, 861 F.2d 1102. The court below relied almost exclusively on Walnut Properties, in which we invalidated a Whittier, California, ordinance that prohibited the establishment of all but three adult business sites throughout the city. 861 F.2d at 1108. Without extended analysis, the district court noted that "[t]he circumstances in the instant case are remarkably similar" to those hi Walnut Properties. Young, 977 F.Supp. at 1022. The district court only compared the number of sites available under the Whittier and Simi Valley ordinances. See id. ("The fact that there may be four sites which can exist simultaneously in the instant case as opposed to three is immaterial, given the Ninth Circuit's finding that three sites in the City of Whittier amounted to a 'glaring' constitutional violation."). The circumstances in Walnut Properties, however, are quite different from the facts in this case. First, at the time the Whittier ordinance was passed, the city had 13 adult businesses located within its boundaries, only three of which could continue operating in the city under the new ordinance. Id. at 1104, 1108. Second, enforcement of the ordinance in Walnut Properties would *822 have forced the closure of the only adult theater then existing in Whittier, with no definite prospect of a place to relocate. Id. at 1110. It was on the basis of these particular facts that the court held "the paucity of alternative sites is glaring." Id. at 1109. [21] Conversely, hi the present case, there is no evidence that more than four adult businesses would be opened in Simi Valley even in the absence of any adult use zoning regulations. In fact, Young is the only person ever to have applied for a permit to open an adult business in the City's history. Data regarding the number of sites available for adult use is meaningless without a contextual basis for determining whether that number is sufficient for that particular locale. Walnut Properties does not stand for the proposition that a zoning ordinance which allows only three, or even four, sites for adult use to exist simultaneously is per se Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 13 unconstitutional, as the district court's order suggests. Nor does Topanga Press aid Young's case. There, we invalidated a Los Angeles adult business ordinance where the total number of adult businesses that could co-exist was fewer than the number of adult businesses already operating at the tune the ordinance was enacted. See 989 F.2d at 1532-33. Of the existing 102 businesses in Los Angeles, all but one would have had to relocate under the new ordinance. See id. Without so holding, we assumed that the relevant inquiry was whether the number of locations left available for adult businesses was greater than the demand for those businesses. See id. This "supply and demand" analysis also has been employed by other circuits in determining the adequacy of alternative avenues of communication. See Woodall v. City of El Paso, 49 F.3d 1120, 1126 (5th Cir.1995) ("Adult Businesses had to show that the areas left open to them were inadequate to satisfy the demand for adult business locations."); Buzzetti v. City of New York, 140 F.3d 134, 140 (2d Cir.1998) (finding an ordinance constitutional that allowed for the operation of approximately 500 adult businesses where there were fewer than 200 in existence). [22][23] We decline, however, to adopt a bright line rule that an ordinance is constitutional when the number of locations available for such businesses equals or exceeds the number of existing adult businesses. This "supply and demand" analysis is insufficient to account for the chilling effect that an adult use zoning ordinance may have on prospective business owners. This point is especially salient in the present case where another feature of the ordinance may deter business owners from applying for permits, thus artificially curtailing the demand. Rather, supply and demand should be only one of several factors that a court considers when determining whether an adult business has a "reasonable opportunity to open and operate" in a particular city. Topanga Press, 989 F.2d at 1529. A court should also look to a variety of other factors including, but not limited to, the percentage of available acreage theoretically available to adult businesses, the number of sites potentially available in relation to the population, "community needs, the incidence of [adult businesses] in other comparable communities, [and] the goals of the city plan." International Food & Beverage Sys. v. City of Fort Lauder dale, 794 F.2d 1520, 1526 (11 th Cir. 1986); see also 3570 East Foothill Blvd., Inc. v. City of Pasacena, 980 F.Supp. 329, 341 (C.D.CaL1997). In this appeal, Young does not argue that any of the enumerated factors weighs in favor of a finding that there is no "reasonable opportunity to open and operate" an adult business in Simi Valley. Renton, 475 U.S. at 54, 106 S.Ct, 925. Rather, his claim rests primarily on the sensitive use veto provision, which we agree is unconstitutional. Given the history of scant demand, and the lack of evidence that others wish to open an adult business in Simi Valley, we cannot say, on this record, that *823 four, simultaneously available sites are insufficient, as a matter of law, to provide reasonable alternative avenues of expression under Renton. [FN14] FN14. This is not to say that four simultaneously available sites will not be inadequate in the future when circumstances may be different. That case, however, is not before us today. III. CONCLUSION Because we agree with the district court's holding that the ordinance's sensitive use veto provision is unconstitutional, we affirm the judgment in favor of Young. The permanent injunction, however, must be vacated and refashioned. The district court permanently enjoined Simi Valley "from enforcing its current zoning scheme with respect to the distance and buffer requirement currently in effect for adult theaters." Young, 977 F.Supp. at 1022. In light of the fact that we have invalidated only the sensitive use veto provision of the ordinance, and not its distance and buffer requirements, the injunction must be vacated as overbroad. On remand, the injunction should be narrowed so that Simi Valley is permanently enjoined from enforcing only the sensitive use veto provision of the ordinance. We remand to the district court for further proceedings in light of this opinion. Young shall recover his costs on appeal from Simi Valley. AFFIRMED, injunction VACATED, and REMANDED. O'SCANNLAIN, Circuit Judge, concurring in part and dissenting in part: The City of Simi Valley enacted a reasonable zoning ordinance regulating the location of adult businesses. Philip Young, who was denied a permit to open a nude dancing club in a shopping center, challenged the ordinance on First Amendment grounds. A jury that heard Young's claims unanimously concluded that the ordinance, as applied by Simi Valley officials in this Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 14 case, did not violate Young's First Amendment rights. The jury was, however, unable to reach a decision as to whether the ordinance as a general matter effectively denies persons a reasonable opportunity to own and to operate adult businesses in Simi Valley. Accordingly, no verdict was rendered and the district court declared a mistrial. The district court then granted Young judgment as a matter of law, finding the City's ordinance unconstitutional both on its face and as applied. See Young v. City of Simi Valley, 977 F.Supp. 1017, 1022 (CD.Cal. 1997). The court now sustains Young's constitutional challenge to the "sensitive use" provision of Simi Valley's ordinance, which prohibits the opening of adult businesses near certain sensitive uses such as youth-oriented businesses, schools, and churches. Based on the theoretical possibility that a sensitive use might apply for a zoning permit and disqualify a pending application for an adult use located nearby, the court concludes that the ordinance gives private parties a so-called "sensitive use veto" over the opening of adult businesses in Simi Valley. Taking this hypothetical and running with it, the court declares the sensitive use provision unconstitutional on its face. The majority reaches this conclusion even though there is no dispute that the provision was not applied unconstitutionally against Young, whose own attempt to secure an adult use permit was in any event precluded by a preexisting sensitive use—a youth-oriented karate studio located in close proximity to Young's proposed site for a nude dance establishment. As a plaintiff raising a facial challenge, Young bears "a heavy burden" in advancing his claim. National Endowment for the Arts v. Finley, 524 U.S. 569, 580, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (internal quotation marks omitted). As the Supreme Court has recently reminded us, "[fjacial invalidation 'is, manifestly, strong medicine' that 'has been employed by the Court sparingly and only as a last resort.' " Id. (quoting *S24Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)); see also Los Angeles Police Department v. United Reporting Publishing Corp., 528 U.S. 32, , 120 S.Ct. 483, 489-90, 145 L.Ed.2d 451 (1999). Because I cannot agree with the court's facial invalidation of Simi Valley's ordinance, I must respectfully dissent. I The district court struck down Simi Valley's zoning ordinance on two grounds. Neither constitutes an adequate basis for holding the ordinance unconstitutional. The district court held that the ordinance's sensitive use provision unconstitutionally gives such uses a de facto veto power over adult business permit applications. The majority agrees, finding the provision facially invalid for failing to provide would-be adult business owners with "reasonable alternative avenues of communication" as required under City of Rent on v. Playtime Theatres, Inc., 475 U.S. 41,50,106 S.Ct. 925, 89L.Ed.2d29(1986). Under the Rent on test, Simi Valley's ordinance is constitutional, as long as it "is designed to serve a substantial government interest and allows for reasonable alternative avenues of communication." Id. at 50, 106 S.Ct. 925. Young concedes that the ordinance is designed to serve a substantial government interest, namely, Simi Valleys strong interest in "combat[ing] the undesirable secondary effects" of adult businesses. Id. at 49, 106 S.Ct. 925. The only issue in this appeal, then, is whether the ordinance "effectively deni[es] [Young] a reasonable opportunity to open and operate an adult [business] within the city." Id. at 54, 106 S.Ct. 925. The district court concluded that the theoretical possibility that a sensitive use might act to disqualify Young's application in itself renders the ordinance unconstitutional by "mak[ing] it unreasonably difficult, if not impossible, for an adult usage applicant to complete the permit process." 977 F.Supp. 1017, 1020 (C.D.Cal.1997). The majority apparently agrees. See maj. op. at 818. The possibility that a sensitive use might attempt to exercise a de facto veto power over adult business applications does exist; how this deprives Young of a reasonable opportunity to open an adult business, however, is not apparent. Under the majority's reasoning, the mere potential for an ordinance to be applied in an unconstitutional manner renders the ordinance altogether unconstitutional. Under such a theory, almost any adult business zoning ordinance—including the one upheld in Renton—would be unconstitutional. For example, an ordinance that left half of a city's space available to adult businesses and did not contain any buffer zone requirements could still be attacked based on the possibility that a sensitive use (or the city itself) could purchase all property zoned for adult businesses, leaving such businesses without any available properties at which to locate and thus depriving them of a reasonable opportunity to operate an adult business. Such a theory is untenable in light Copr. © West 2004 No Claim to Orig. U.S. Govt. Works Page 15 ofRenton, where the Supreme Court reversed this court to uphold the City of Renton's ordinance as constitutional—without pausing to speculate about possible scenarios in which the ordinance might be applied unconstitutionally. Upholding the facial constitutionality of the sensitive use provision would not place the ordinance beyond constitutional scrutiny. The provision would still be fully subject to constitutional challenge on an "as applied" basis. In this case, for example, a reasonable jury could have found a high likelihood that a sensitive use would act to disqualify a future permit application by Young—even though the jury that did hear the case apparently did not do so. At trial Young introduced evidence from which it might be inferred that the Joshua Institute was a sham opened by Norman Walker to disqualify Young's application. Based on this circumstantial evidence, a *825 jury could have believed that Walker would act similarly with respect to Young's future adult business permit applications. This is not, however, the only reasonable conclusion to be drawn on the evidence. Significant evidence in the record~of a direct rather than circumstantial nature—points in the opposite direction. For instance, Walker testified that the opening of the Bible study class had nothing to do with Young's permit application; that any interaction between the Joshua Institute's application for a zoning permit and Young's application was "coincidental" and "unintentional"; and that Walker "had no idea," at the time that the Joshua Institute applied for a zoning permit, "that the effect of what [the Institute] did could stop Mr. Young" from obtaining a zoning permit for his proposed adult theater. Furthermore, the proposed location of Young's adult business was in any case already disqualified by the presence of a nearby youth-oriented business. In light of this evidence, it is not surprising that the jury found that the ordinance had not been applied unconstitutionally against Young. In sum, the likelihood of a sensitive use acting to manipulate Simi Valley's zoning ordinances is a factual question for a jury to decide. This determination should be made on a case-by-case basis, in light of the facts and circumstances surrounding a particular adult use permit application. The district court erred in finding the ordinance facially unconstitutional and enjoining its enforcement. B The district court struck down the ordinance on another ground. Under the buffer zone requirements of the ordinance, approximately four potential adult use sites exist simultaneously in Simi Valley—a city in which only one application for an adult use is pending. The district court held, as a matter of law, that four possible sites "simply does not amount to a reasonable number of alternative means of communication." 977 F.Supp. at 1022. As the majority points out, see maj. op. at 821-22, the district court reached this conclusion without conducting the fact-specific inquiry into reasonableness required under Renton. I agree with the majority that the district court's holding on this issue was erroneous. I would, however, proceed one step further. In Topanga Press, Inc. v. City of Los Angeles, 989 F.2d 1524, 1532-33 (9th Cir. 1993), we strongly suggested (but did not explicitly hold) that the constitutionality of an ordinance like Simi Valley's can be determined by comparing the supply of locations available for adult businesses to the demand for such sites. Based on the Topanga Press analysis, I would expressly hold that, as a matter of law, an adult business zoning ordinance violates the First Amendment if, and only if, the ordinance restricts the number of sites available to adult businesses below the demand for such properties. Such a rule has already been explicitly adopted by the Fifth Circuit, see Woodallv. City of El Paso, 49 F.3d 1120,1126-27 (5th Cir. 1995), and it finds support in the case law of other circuits as well, see, e.g., Buzzetti v. City of New York, 140F.3d 134,140-41 (2dCir.l998); Alexanderv. City of Minneapolis, 928 F.2d 278, 283-84 (8th Cir.1991). This rule provides a sensible, workable test for conducting what might otherwise be an unwieldy (and arguably standardless) inquiry into First Amendment reasonableness under Renton. The majority expressly declines to adopt such a rule, reasoning that " 'supply and demand' analysis is insufficient to account for the chilling effect that an adult use zoning ordinance may have on prospective business owners." Maj. op. at 823. While the majority's concerns are legitimate, I simply fail to see how an individual can claim that he has been denied a reasonable opportunity to open an adult business as long as there exists a site within the municipality available for his business. Under Renton, of course, the aspiring operator of an adult establishment has no right *826 to his preferred business location within the city. Regulating the location of certain types of businesses is, after all, "the essence of zoning." Renton, 475 U.S. at 54, 106 S.Ct. 925. Young is the only individual who has ever sought to establish an adult business in Simi Valley. The number of sites available in the City for such businesses exceeds the demand for such sites (by a multiple of three to four). The Supreme Court's decision in Renton, Copr. © West 2004 No Claim to Orig. U.S. Govt. Works the decisions of our sister circuits, and common sense all suggest that the number of available locations is reasonable as a matter of law. II Subsequent to oral argument in this case, the Supreme Court decided CityofEriev. Pap's A.M., 529 U.S. 277, 120 S.Ct. 1382,146 L.Ed.2d 265 (2000). The city of Erie, Pennsylvania, enacted an ordinance prohibiting nudity in public places. Because the ordinance's definition of "public place" included "all buildings and enclosed places owned by or open to the general public, including... places of entertainment," the ordinance had the effect of banning nude erotic dancing. Id at 1387-88 (quoting Erie, Pa., Code art. 711 (1994)). [FN1] FN1. "To comply with the ordinance, ... dancers must wear, at a minimum, 'pasties' and a 'G-string.' " 529 U.S. at —, 120 S.Ct. at 1388. Although the members of the Court divided as to their reasoning, a majority voted to uphold the ordinance as "a content-neutral regulation that satisfies the four-part test of United States v. O'Brien, 391 U.S. 367,88 S.Ct. 1673, 20 L.Ed.2d 672 (1968)." 529 U.S. at —, 120 S.Ct. at 1388. Under Erie, then, municipalities have the right to ban nude dancing entirely if they were to choose to do so in an effort to combat the negative secondary effects of adult entertainment establishments. If municipalities can prohibit nude dancing outright through content-neutral restrictions on conduct aimed at fighting "crime and the other deleterious effects caused by the presence of [an adult] establishment in the neighborhood," they presumably can certainly use their zoning power to achieve the same ultimate effect as a total ban. Id at 1393 (O'Connor, J.) (plurality opinion). In light of evidence in the record suggesting that Young would still seek to present erotic strip tease dancing at his proposed adult entertainment establishment, Erie does not control this case. It does, however, have important implications for the constitutionality of adult use zoning ordinances. Because Erie did not overrule Renton—Justice O'Connor's plurality opinion in Erie relied upon Renton for its analysis-the two decisions must be read as consistent with each other (despite the dissent's claim of irreconcilability, see id at 1407-09 (Stevens, J., dissenting)). When read together, Erie and Renton Page 16 establish somewhat different frameworks for evaluating the constitutionality of content-neutral regulations of nude dancing as opposed to other forms of adult entertainment. Under Erie, a municipality can enact a content-neutral ordinance banning nude dancing entirely. See id at 1388. Under Renton, however, a municipality can enact a content-neutral ordinance regulating adult entertainment only to the extent that the ordinance does not deny an individual "a reasonable opportunity to own and operate an adult theater within the city." 475 U.S. at 54, 106 S.Ct. 925. Thus, after Erie, the extent to which cities like Simi Valley may ban or otherwise regulate adult entertainment would appear to depend upon the specific type of entertainment being regulated. Although I believe, for the reasons set forth above, that Young's challenge to the City's ordinance fails under Renton, I am persuaded that his challenge would indisputably fail if governed by the Erie standard. *827 In sum, the Supreme Court's recent decision in Erie reaffirms the important principle that "the government should have sufficient leeway to justify [content-neutral restrictions regulating conduct] based on secondary effects" of such conduct. Id. at 1396. The City would do well to consider both the holding and reasoning of Erie carefully in any attempt to refashion its ordinance in the wake of todays decision. Ill Simi Valley's adult business zoning ordinance allows for "reasonable alternative avenues of communication" and does not offend First Amendment standards. Although its sensitive use provision raises constitutional concerns and may be subject to challenge on an "as applied" basis, it is not unconstitutional on its face. Furthermore, as the majority recognizes, the ordinance's distance and buffer requirements undoubtedly pass constitutional muster. I would reverse and remand for vacation of the injunction in its entirety. 216 F.3d 807, 00 Cal. Daily Op. Serv. 4931, 2000 Daily Journal D. A.R. 6581 END OF DOCUMENT Copr. © West 2004 No Claim to Orig. U.S. Govt. Works