Posted by: Patricia Salkin | July 29, 2015

MA Supreme Judicial Court Finds Bylaw Prohibiting the Sale or Presence of Alcohol at Adult Entertainment Establishments was Not Sufficiently Narrowly Tailored

Showtime Entertainment, LLC (“Showtime”), owner of a lot within 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 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.

Under intermediate scrutiny, Mendon was required to show that its interest in crime deterrence is substantial, and that its restriction on expressive activity was narrowly tailored to advance that interest without at the same time banning or significantly restricting a substantial quantity of speech that did not create the evils the city sought to eliminate. The First Circuit 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.

The court found that the demonstration of this countervailing State interest in the form of the mitigation of negative secondary effects was shown by evidence in the judicial record or legislative history sufficient to conclude that the restraint on speech was required for the protection of the public. Because Showtime offered no affirmative evidence to counter the town’s determination that a countervailing State interest existed, the court found that there was a sufficient State interest to support the ban. Having concluded that the town had sufficient evidence to believe that alcohol and adult entertainment businesses lead to an increase in crime and that crime prevention is a substantial government interest, the court then examined whether the bylaw was “adequately tailored.” After considering hypotheticals of various theatrical and artistic performances, the court found that banning all manner of expression at establishments licensed to serve alcohol on the basis that the expression features nude dancing is not the logical response to the determination that alcohol service in physical proximity to adult businesses increases the incidence of crime. Thus, the court found that the ban was not narrowly tailored.

Showtime Entertainment, LLC v Town of Mendon, 2015 WL 4094282 (MA 7/8/2015)


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