Posted by: Patricia Salkin | December 12, 2015

Second Circuit Court of Appeals Finds Adult Business Lacked Standing to Bring First Amendment Challenge to City Ordinance

Plaintiff Keepers, Inc., an adult oriented business, brought action alleging that defendant, City of Milford’s ordinance requiring adult oriented businesses to post publicly the names of their operators, officers, and third party owners violated the right to speech protected under the First Amendment and was unconstitutionally vague in violation of the Due Process Clause of the Fourteenth Amendment. The United States District Court for the District of Connecticut granted Keeper’s motion for summary judgement and the City appealed. On December 5, 2008, Keepers served a notice of deposition on the City pursuant to Rule 30(b)(6) of the Federal Rules of Civil Procedure, which permits a party to depose an organization, including a governmental entity. The City responded to Keepers’ notice of deposition by designating its former municipal attorney, Marilyn Lipton, who gave deposition testimony for Milford. In its motion for summary judgment, Keepers identified several provisions that it argued were unconstitutionally vague, relying on Lipton’s deposition for support. In response to Keepers’ motion, Milford filed an affidavit by Chief of Police Keith Mello (the “Mello Affidavit”), who was primarily responsible for administering the ordinance. The Mello Affidavit offered “additional guidelines regarding the interpretation and enforcement of Chapter 2.3,” with particular focus on those provisions that Keepers’ motion had identified as vague.

As to the First Amendment standing issue, Keepers argued that prudential standing concerns were irrelevant because “courts have generally dispensed with the rule that a party must assert its own legal rights and not the rights of third parties when First Amendment free speech rights are at stake.” However, courts have this relaxed prudential standing requirements to permit challenges based on First Amendment overbreadth, rather than the third-party standing issue of this case. Here, Keepers’ owners and officers had already identified themselves publicly during the course of this litigation, and failed to present any evidence that they would face “threats, harassment, or reprisals” from bringing a case in their own names. Additionally, in its motion for summary judgment, Keepers alleged several ways in which Milford’s ordinances have harmed its constitutional and economic interests; however, in neither in its appellate briefs nor before the District Court had Keepers explained how the alleged infringement of its officers’ and owners’ anonymity rights caused it any harm. Accordingly, the court found that Keepers lacked prudential and constitutional standing to challenge the public-posting requirements based on its owners’ and officers’ right of anonymous expression. It therefore vacated the District Court’s judgment insofar as it reached the merits of this challenge and remanded with direction to dismiss that claim.

Keepers, Inc. v City of Milford, 2015 WL 73252120 (2d Cir. CA 11/20/2015)


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