In 2003, the City of San Antonio enacted an ordinance regulating gentlemen’s club and in 2005 the City adopted another ordinance prohibiting nude and topless dancing in public places and requiring permits for “human display establishments”. The ban on nude dancing was challenged in 2009 by operators of adult entertainment clubs, alleging the ban amounted to a violation of free speech. The trial court ruled in favor of the City and the Fourth Circuit Court of Appeals affirmed the finding that the ordinance imposed no greater incidental restriction on protected speech than was essential to the furtherance of the governmental interest in public places. The Court also found that requiring permits for human display establishments imposed no greater incidental restriction on protected speech than was essential to the furtherance of the governmental interest associated with sexually oriented businesses (“SOBs”). The requirement to that SOBs must obtain a human display establishment license was easy to circumvent as the plaintiff changed the attire of their dancers to g-strings and pasties. These changes enabled the plaintiff to operate under a dance hall permit and not be subjected to SOB status. However, it was not just the plaintiff circumventing the law with some extra fabric, it was everybody. There was not a single human display establishment permit request made and none were issued. In 2012, the City changed the ordinance, with the stated purpose of capturing those businesses that had been circumventing the law, to include semi-nudity and define it as to include the use of g-strings and pasties.
The plaintiff in this matter filed suit against the City alleging the ordinance is a constitutionally impermissible restriction on a dancer’s protected expression of speech and unconstitutional because there is no evidence that the contested change in the dancer’s attire would impact any negative secondary effects. The plaintiff sought preliminary injunctive relief to prevent the city from enforcing this ordinance. The City argued that it was not a violation of the First Amendment “to require plaintiffs to choose whether they want to be licensed and offer topless dancing or be free of licensing requirements and the other regulations in the ordinance by offering dancers wearing bikinis.”
The district court determined that there was no substantial likelihood of success on the merits. Bound by precedent in the 5th circuit, the Court explained that it is not a First Amendment violation to require gentlemen’s clubs to decide whether they want to be licensed and to offer nude and semi-nude dancing or free of licensing, building and zoning requirements by offering dancers wearing more fabric. The Court also noted that the plaintiff failed to show that semi-nude erotic dancing does not have adverse secondary effects.
35 Bar and Grille, LLC v. City of San Antonio, 2013 WL 1870060 (W.D.Tex. 4/29/2013)
The opinion can be accessed at: http://www.txwd.uscourts.gov/opinions/cases/35BarAndGrille_v_CityOfSA.pdf