Posted by: Patricia Salkin | October 29, 2014

1st Circuit Court of Appeals Remands Question of Restriction on Adult Entertainment Occurring Within Establishments Licensed to Serve Alcohol for Findings of State Law

Showtime Entertainment, LLC (“Showtime”), owner of a lot within the town’s adult-entertainment overlay district brought action against town and two members of town’s board, alleging, inter alia, that zoning bylaws relating to size, height, and operating hours of adult-entertainment establishments, as well as ban on sale and consumption of alcohol at such establishments, constituted impermissible prior restraint on freedom of expression. After the court determined that bylaws’ special-permitting requirement was an impermissible prior restraint and granted owner’s first motion for summary judgment, the parties moved and cross-moved for partial summary judgment on remaining counts of complaint. The United States District Court for the District of Massachusetts, entered summary judgment in favor of town, and Showtime appealed.

The court first addressed what level of scrutiny to apply and, recognizing that the zoning bylaws’ express terms set forth content-neutral purposes, proceeded in the application of intermediate scrutiny while withholding judgment as to the bylaws’ true content neutrality. The court then noted that while the First Amendment imposes not an ‘underinclusiveness’ limitation but a ‘content discrimination’ limitation upon a State’s prohibition of proscribable speech, it pays attention to underinclusiveness where it reveals significant doubts that the government indeed has a substantial interest that is furthered by its proffered purpose. Here, the two purposes of the bylaws: (1) maintaining the rural aesthetics of Mendon as a small town; and (2) avoiding traffic congestion, particularly on days when school is in session were found to be patently underinclusive, and thus, insufficient to support Mendon’s claim that it has regulated adult-entertainment businesses only out of a substantial interest in curbing the secondary effects of such businesses.

Under intermediate scrutiny, Mendon was required to show that its interest in crime deterrence is substantial, and that its restriction on expressive activity is narrowly tailored to advance that interest without at the same time banning or significantly restricting a substantial quantity of speech that does not create the evils the city seeks to eliminate.  The First Circuit therefore reversed the grant of summary judgment in favor of Mendon as it related to the bylaws regarding the size, height, and operating hours of adult-entertainment businesses, and remanded this claim to the district court for entry of summary judgment in favor of Showtime.  The court certified to the SJC the questions of whether there was a countervailing State interest, and if so, whether the ban was adequately tailored.

Showtime Entertainment, LLC v Town of Mendon, 2014 WL 5028046 (1st Cir. Ct App. 10/8/2014)

The opinion can be accessed at:

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