Constitutional Civil Rights - John Sanchez

• Publication year: 2001

Constitutional Civil Rightsby John Sanchez^*

I. Introduction

The 2000 survey period was an active year for constitutional civil rights litigation in the Eleventh Circuit. All eighteen cases examine thorny issues arising under the First Amendment. Thirteen cases address free speech issues while five cases touch on religion. Two cases deal with zoning ordinances that regulate adult businesses. Two cases address the constitutionality of zoning ordinances that regulate nude dancing. Two apply the test in Central Hudson Gas & Electric Corp. v. Public Service Commission ("Central Hudson")¹ for regulating commercial speech. Two cases analyze the law of prior restraints when it comes to licensing access to traditional public fora. Four cases apply the balancing test announced in Pickering v. Board of Education² for assessing public employee speech. One case involves a citizen's right to videotape police activity. Turning to the religious clauses of the First Amendment, three cases involve the Establishment Clause while the final two cases address free exercise issues.

II. First Amendment

A. Free Speech

1. Regulating Adult Businesses. In Ward v. County of Orange,³ the Eleventh Circuit addressed the constitutionality of a county's adult entertainment code.⁴ The court of appeals concluded that the ordinance was a valid time, place, or manner regulation thereby affirming the district court's decision that the ordinance was facially constitutional.⁵ However, the court of appeals remanded the case with instructions that the district court determine whether the owner's as-applied challenges were ripe for review.⁶

In Ward customers at plaintiff's "swimsuit club" can buy "Sweetheart Party Packages" that give them access to nonalcoholic beverages and slow dances with performers. Plaintiff had never applied for an adult entertainment license, and consequently, several performers and a manager were arrested for violations of the county's Adult Entertainment Code. Plaintiff sued the county, claiming the code was unconstitutional on its face and as applied. The district court granted summary judgment to the county on the facial challenges and concluded that plaintiff's as-applied challenges were not ripe.⁷ On appeal the Eleventh Circuit reviewed the zoning ordinance under the "time, place, or manner" standard spelled out by the Supreme Court in City of Renton v. Playtime Theatres, Inc.⁸ Under this standard a zoning ordinance is valid if it is "designed to serve a substantial government interest and allows for reasonable alternative avenues of communication."⁹ The Eleventh Circuit concluded that the City had a substantial interest in combating the harmful secondary effects of adult businesses, such as crimes, public health, and safety problems.¹⁰ The court found in favor of the City and denied plaintiff's facial challenge even though the City relied on studies conducted by other cities and did not undertake its own study.¹¹

The court also considered which party bore the burden of proving plaintiff's business was an adult entertainment establishment subject to licensing.¹² Relying on the Supreme Court's rulings in Freedman v. Maryland¹³ and FW/PBS, Inc. v. Dallas,¹⁴ the court held that applicants must be protected by two procedural safeguards: (1) Any restraint prior to judicial review may only be put in place for a short term during which the status quo must be maintained, and (2) the final judicial decision must be prompt.¹⁵ However, a city may require the license applicant to bear the burden of proving that it is engaging in protected activity.¹⁶

Finally, the court addressed whether plaintiff's as-applied challenge was ripe because plaintiff never applied for a license.¹⁷ The court ruled that the ripeness issue turned on whether plaintiff could have secured from the zoning board a ruling that plaintiff in fact needed a license.¹⁸ The court remanded the case to the district court for a determination of this issue.¹⁹ As for the overbreadth and vagueness challenges, the court affirmed the district court's grant of summary judgment to the City on these claims.

In David Vincent, Inc. v. Broward County,²⁰ the Eleventh Circuit ruled on whether plaintiffs' former bid for a preliminary injunction of a licensing ordinance in state court foreclosed them from seeking an injunction in federal court and whether the zoning ordinance was constitutional.²¹ The court reversed the district court's ruling that plaintiffs' failed state court bid barred a later claim for a permanent injunction and affirmed the lower court's ruling that the ordinance was constitutional, both facially and as applied.²²

In 1993 Broward County, Florida adopted a licensing and zoning ordinance for adult businesses that substantially reduced the number of suitable sites in the county for such establishments. Plaintiffs sued in state court. Subsequently, defendants removed the case to federal court, but plaintiffs successfully remanded. The state trial court denied (and the state court of appeals affirmed) plaintiffs' request for a preliminary injunction, but the trial court never reached the merits of the case nor the issue of permanent injunction. Plaintiffs then dismissed their state court claim for a permanent injunction and filed suit in federal court, challenging the constitutionality of the ordinance and seeking a permanent injunction. The federal district court granted summary judgment to the county on the licensing issue based on preclusion grounds. As for plaintiffs' facial challenge, the district court concentrated on whether the ordinance left a sufficient number of sites for adult businesses to satisfy the First Amendment's requirement that time, place, and manner restrictions leave adequate avenues for adult expression. The district court concluded that seven to nine sites available for adult businesses amounted to adequate opportunity for adult expression in the county.²³

The Eleventh Circuit reversed the district court's preclusion ruling, holding plaintiffs' preliminary injunction proceeding in state court did not afford them an opportunity to litigate their permanent injunction claims, as the only issue before the state court was whether plaintiffs made a case for a preliminary injunction, not whether the county's ordinance was in fact constitutional.²⁴ For this reason the circuit court concluded that neither claim preclusion, issue preclusion, nor notions of federalism warranted foreclosing plaintiffs' claim for a permanent injunction of the county's licensing ordinance.²⁵

The second issue the circuit court addressed was plaintiffs' facial challenge to the county's ordinance.²⁶ Relying on precedent the court ruled that the ordinance was constitutional on its face, despite the fact that the ordinance made no provision for allowing adult businesses with community approval to locate outside of areas designated for their use and the fact that geographic and demographic changes in the county left far fewer potential sites for adult businesses.²⁷

In analyzing plaintiffs' as-applied challenge to the ordinance, the circuit court invoked the secondary effects doctrine, concluding the ordinance was a content-neutral time, place, and manner regulation that should be sustained as long as it is narrowly tailored to further a substantial governmental interest and it allows for reasonable alternative avenues of communication.²⁸ In reviewing the district court's calculation of the number of sites available for adult businesses, the Eleventh Circuit followed a few general rules: (1) The economic feasibility of relocating to a site is largely irrelevant; (2) the fact that some development is needed before a site is suitable for an adult business does not render it, per se, unavailable; and (3) the First Amendment does not dwell on restraints that are not imposed by government itself or by the physical characteristics of the potential sites.²⁹ Applying these rules the court concluded that the district court did not err in finding seven to nine sites available for adult use in the county was a sufficient number.³⁰ Finally, the court turned to whether seven to nine sites leaves reasonable avenues for communicating the businesses' protected expression.³¹ Noting that the district court could have been more specific in defining what factors are relevant in determining the adequacy of available sites, the Eleventh Circuit concluded the district court's reasoning was sound.³²

2. Regulating Nude Dancing. In Wise Enterprises, Inc. v. Unified Government of Athens-Clarke County,³³ the Eleventh Circuit addressed the constitutionality of a county's adult entertainment ordinance.³⁴ The court affirmed the district court's decision to grant summary judgment to the county, concluding (1) that the ordinance was content-neutral, thus triggering intermediate scrutiny; (2) that the ordinance barring businesses from serving alcohol and providing adult entertainment at the same site did not run afoul of the First Amendment; and (3) that the ordinance's refusal to grant adult entertainment business licenses to establishments located in the central business district did not violate the First Amendment.³⁵

Plaintiffs operated adult entertainment establishments featuring nude barroom dancing while providing alcoholic drinks. After the county amended its zoning ordinance, barring adult businesses from serving alcohol, plaintiffs sued the county.³⁶ On appeal from the district court's grant of summary judgment, the Eleventh Circuit, relying on the standard set out by the Supreme Court in City of Erie v. Pap's A.M.³⁷ decided that the district court was correct in adopting the intermediate scrutiny test for assessing whether the county's ordinances were content-neutral.³⁸ Once again relying on the secondary effects doctrine, the court concluded that the ordinances were unrelated to the suppression of free expression.³⁹ Moreover, the ordinance was narrowly tailored given that it did not ban all...