Federal appeals panel strikes down parts of Wisconsin city’s adult-business law

Friday, September 29, 2000


A provision in a Wisconsin city's adult-entertainment ordinance that bans sexually explicit dance movements violates the First Amendment, a federal appeals court panel has ruled.

In January 1998, the city of Cumberland passed an extensive ordinance that established a licensing and regulatory system for sexually oriented businesses. The city, which had a population of less than 3,000, passed the ordinance in part because of problems that occurred at the city's lone sexually oriented business, the Island Bar.

The Island Bar, which opened in 1993, had its license revoked in 1994 because law enforcement officials discovered prostitution and sexual contact between patrons and performers.

The 1998 law imposed numerous restrictions, including:

Prohibiting people in a sexually oriented business from appearing “in a state of nudity” or depicting “specified sexual activities.”

Requiring performers to wear G-strings and pasties.

Limiting the hours of operation of sexually oriented businesses.

Requiring operators and employees at sexually oriented businesses to obtain licenses.

In February 1998, Joseph Schultz, the owner of the bar, and Tonya Norwood, a dancer in the bar, sued in federal court, contending that various portions of the ordinance violated the First Amendment. In November 1998, U.S. District Judge Barbara Crabb ruled that certain parts of the ordinance violated the First Amendment.

Crabb struck down the nudity ban and several of the licensing requirements for operators and employees. On appeal, a three-judge panel of the 7th U.S. Circuit Court of Appeals unanimously ruled in Schultz v. City of Cumberland that certain provisions were unconstitutional.

The panel first addressed the constitutionality of the operating regulations. The panel determined that limiting the hours of operation imposed a classic time, place and manner restriction on speech that did not violate the First Amendment.

The panel next addressed the constitutionality of the general nudity ban. The city justified the ban on the basis of the secondary-effects rationale, which provides government officials greater leeway to regulate adult businesses if they do so because of harmful side effects allegedly associated with those businesses.

However, the panel realized that the secondary-effects doctrine could be grounds for constitutional abuse, writing in its Sept. 26 opinion: “A secondary-effects rationale by itself does not bestow upon the government free license to suppress specific content or a specific message because such a regime would permit the government to single out a message expressly, formulate a regulation that prohibits it, then draw content-neutral treatment nonetheless simply by producing a secondary-effects rationale as pretextual justification.”

Citing the 1991 U.S. Supreme Court decision Barnes v. Glen Theatre, Inc. and the decision earlier this year in City of Erie v. PAP's A.M., the panel reasoned that a complete ban on nudity, even one that specifically targets adult businesses, imposes only a minimal burden on First Amendment rights.

The panel quoted the statement in Barnes that “the requirement that the dancers don 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.”

However, the panel struck down the portion of the ordinance that prohibited the performance of a wide array of sexually explicit dance movements. “Cumberland cannot avoid this dictate by regulating nude dancing with such stringent restrictions that the dance no longer conveys eroticism nor resembles adult entertainment,” the panel wrote.

The panel also invalidated the portions of the licensing provision that required the disclosure of a residential address, recent color photograph, Social Security number, fingerprints, tax-identification number and driver's license information. The panel reasoned that this information was “redundant and unnecessary for Cumberland's stated purpose.”

The panel upheld the portions of the provision that required disclosure of proof of age, name, business location and the description of the business premises.

Finally, the appeals court judges also struck down the provision that allowed city officials to deny a license to anyone who had been convicted of certain “vice” crimes or someone overdue on paying city taxes.

The panel wrote that “a complete ban on certain expression for a disqualified group of applicants, who, by definition, wish to speak … cannot be justified here as narrowly tailored to resist noisome secondary effects.”

Randall Tigue, attorney for Schultz and Norwood, was out of the office and unavailable for comment.

Calls to the city's attorney were not returned.

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