The owner of a local Lifestyle Club, known to the general public as "Swingers Clubs," approached me to discuss the best strategy to oppose recent legislation passed by the Metropolitan City Council and similar legislation introduced in the State Legislature that will place strict regulations on clubs like his. He further indicated that his industry on a broader scale is concerned about the potential precedent these actions could establish across the country and is evaluating options for taking a stand against them as a consolidated group. This paper takes a brief look at the legal issues involved, the history of the use by municipalities of the Secondary Effects Doctrine to bypass First Amendment protections and possible alternative plans for these businesses to survive this conservative attack on their businesses and lifestyle.
LEGAL QUESTIONS PRESENTED
- Does the ordinance adopted by the City Council and the actions proposed by the State legislature violate the First Amendment Constitutional rights of the club owners and/or their patrons?
- Is the traditional attack on the secondary effects doctrine which has been used to defend similar ordinances against First Amendment Constitutional challenges in other jurisdictions the most effective to attack this legislation?
- Given that most such challenges have failed across the country due to a reliance on more generalized adult-business secondary effects studies, would a targeted academic study of the "true" secondary effects of swinger's clubs overcome such failures in this and future cases?
- If an attack on the secondary effects doctrine is not the best strategy, what would be a better approach?
Early in 2015, the Metropolitan City Planning Commission introduced an ordinance which would modify certain sections of the municipal land use code to restrict sex clubs. This ordinance was particularly targeted at "swinger's clubs," which have operated quietly in the city for over two decades and was rapidly adopted and enacted on less than 30 days. The Metro Planning Commission advocated the need for this ordinance with a claim that "sex clubs have been shown to have a negative impact on the health, safety and welfare of communities...," yet did not provide any known supporting research or evidence in support of this contention. Contemporaneous with the rapid adoption of this ordinance, the State legislature submitted parallel bills in both chambers to "study the status of swinger's clubs as a regulated form of operation in this state."
Perceiving a threat to his business, the owner of one of the local clubs in the City approached us to discuss the constitutionality of the Metro Government's and State's actions. He further stated that his industry on a broader scale is concerned about the potential precedent these actions could establish across the country and is considering taking a stand against them as a consolidated group. As a group, the industry leaders initially intend to raise funding for a scholarly study of the secondary effects of swinger's clubs to attack the secondary effects doctrine defense that has been used by municipalities elsewhere to uphold similar ordinances. In most of these cases, the secondary effects information used by the courts focused more broadly on adult businesses as a whole, with few localized to the specific litigation. The industry group believes a study conducted by a reputable academician focusing specifically on swinger's clubs will show that such secondary effects don't apply to their clubs.
A brief review of the history of jurisprudence in this area indicates this will be a challenging, likely futile approach. A survey of legal opinions from across the country shows that attacks on secondary doctrine have, at best, provided a temporary delay of the implementation of similar restrictive ordinances. Based on such precedent, an alternative approach is needed.
SHORT HISTORY OF SECONDARY EFFECTS DOCTRINE
First Amendment protection for certain aspects of adult entertainment businesses developed from decisions of the U.S. Supreme Court in such cases as Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) and Barnes v. Glen Theatre, 501 U.S. 560 (1991). In parallel, and as a result of these protections, the secondary effects doctrine became the primary strategy for municipalities to restrict such businesses. The secondary effects doctrine developed in land-use regulation of adult businesses, was first articulated by the U.S. Supreme Court in Young v. American Mini Theater. 427 U.S. 50 (1976) and became the de-facto standard for adult-business restrictions in Renton v. Playtime Theaters, 475 U.S. 41 (1986).1
In Renton, the Court established a three-step analysis for adult oriented business legislation.
- The first step is to determine whether the regulation bans adult businesses outright or only restricts when and where they may operate, yielding a time, place and manner analysis.
- The second step is determining whether the ordinance is to be treated as content-neutral or content-based. If the ordinance is a content-neutral time, place and manner regulation, it is only subject to intermediate scrutiny.
- If the ordinance is subject to intermediate scrutiny, the final step in the Renton analysis is determining if the regulation is designed to serve a substantial government interest, whether it is narrowly tailored to achieve that interest and whether it unreasonably limits alternate avenues of communication. This third step depends on the four-prong test for conduct that contains both speech and non-speech conduct established in United States v. O'Brien, 391 U.S. 367 (1968):
- The government has the power to pass the regulation;
- The regulation furthers an important or substantial government interest;
- The government interest is unrelated to the suppression of free expression;
- The incidental restriction on alleged First Amendment freedoms is no greater than necessary.
Key lessons which emerged from this generation of secondary effects jurisprudence include:
1 For a complete review, see "Adult Entertainment and the Secondary-effect Doctrine - How a zoning regulation may affect First Amendment freedoms," First Reports, Vol 2, No. 1, May, 2002.
- A zoning law that is otherwise facially content-based can be treated as content-neutral to pass constitutional muster if the law was adopted to address harmful secondary effects.
- Renton at 47;
- Municipalities did not have to conduct their own studies when developing zoning ordinances based on the secondary effects doctrine. Id at 51-2;
- Secondary effects doctrine could be applied beyond zoning restrictions to laws directly suppressing expressive content. Barnes at 572.
Subsequent to these decisions, cities across the country passed a flurry of laws and regulations restricting the location and operation of adult businesses, some of which led to further analysis of secondary effects by the U.S. Supreme Court. Noteworthy among these is City of Erie v. Pap's A.M., 120 S.Ct. 1382 (2000). In Pap's, although the court upheld the city's zoning law, it opened the door for future challenges of the assumptions underlying the secondary effects rationale, indicating that the rationale of not requiring localized studies from Renton was incorrect. Id at 1396; (also see dissenting opinions at 1405-6).
Pap's did not, however, yield a watershed victory for adult businesses. The 11th Circuit struck down a 1997 Fulton County, Ga ordinance which prohibited the sale of alcohol at strip clubs, citing three localized studies which showed no correlation between adult clubs and crime or reduced property values. Flannigan's Enterprises v. Fulton County, 242 F.3d 976 (11th Cir. 2001). The court reasoned that "the County had ignored the most relevant evidence in enacting the regulation." Id at 986. However, upon revisiting a modified version of the ordinance in 2010, the same court upheld it after the county conducted further studies and correlated them "foreign studies" from other parts of the country. Flannigan's Enterprises v. Fulton County, 596 F.3d 1265 (11th Cir. 2010). The U.S. Supreme Court furthered this pattern of deference to governmental officials in reversing the 9th Circuit, ruling that the city of Los Angeles could depend on a six-year old study in establishing a ban on "multi-use" adult businesses. City of Los Angeles v. Alameda Books, 535 U.S. 425 (2002). Although they had struck down the ordinance originally, when the ordinance was again before the 9th Circuit in 2010, the court upheld it, citing further studies and updated statistics provided by the city. City of Los Angeles v. Alameda Books, 631 F.3d. 1031 (9th Cir. 2011).
Courts across the country continue to address First Amendment challenges to laws restricting adult businesses. Secondary effects doctrine continues to evolve and continues to be contentious. The common, clear theme across these cases is that they are very fact specific. For example, the 11th Circuit found a Pensacola, Florida ordinance banning topless dancing unconstitutional because the city produced no evidence showing a connection between topless bars and crime in Krueger v. City of Pensacola, 759 F.2d. 851 (11th Cir. 1985). Yet, in 2011 the same court upheld a contemporaneous Manatee County ordinance in a case that spanned almost three decades in what was, in essence, a "battle of the experts" where the opponents presented contradictory secondary effects data. Peek-a-Boo Lounge of Bradenton v. Manatee County, 630 F.3d. 1346 (11th Cir. 2011).
As recently as March 2015, the 7th Circuit ruled that an Illinois town had not provided sufficient evidence to support the secondary effects rationale of its ban on public nudity. However, the court did not outright strike the ordinance, instead remanding it back to the trial court for further proceedings to give the town the opportunity to bolster its position. Foxxxy Ladyz Adult World Inc. v. Village of Dix, 779 F.3d 706 (7th Cir. 2015). In the same month, the Federal District Court in South Carolina, Columbia Division, granted summary judgement to the City of Columbia on a challenge to its sexually oriented business ordinance. Cricket Store 17 v. City of Columbia, 2015 WL 1499399, (D.S.C. 2015). In this case the city passed the ordinance shortly after the plaintiff, Taboo (Cricket Store 17 d.b.a) opened their store. Taboo made both a facial and as-applied challenge to the ordinance. The district court wrote a comprehensive opinion which addressed all of the Renton test factors as well as an exhaustive evaluation of the alternative sites available to the plaintiff. In June 2015, the Supreme Court of Georgia addressed a similar challenge and came to the same conclusion, validating the city's ordinance. Oasis Goodtime Emporium v. City of Doraville, 2015 WL 3658847 (Ga. 2015). In the sole victory of note for the adult businesses, the 7th Circuit struck down the Winnebago County, Wisconsin ordinance governing adult entertainment overlay districts as a constitutional prior constraint violation. Green Valley Investments v. Winnebago County, 2015 WL 4509767, (7th Cir. 2015).
The vast majority of adult business and secondary effects jurisprudence has focused on strip clubs, adult bookstores and adult arcades. However, there have also been a number of cases litigated by swinger's clubs over the last four decades. In addition to secondary effects, these cases have also addressed additional constitutional issues including the right to privacy, free speech and freedom of association. Unfortunately for these businesses, the courts have generally held that swinger's clubs do not enjoy any of these enumerated rights. In the majority of these opinions, the courts have consistently held that swinger's clubs do not enjoy the right to privacy because they are commercial establishments; do not meet the definition of private clubs; that free speech does not protect purely physical contact; sexual activity at the clubs does not constitute expression under the free speech clause; and swinger's clubs are not protected by associational rights.
Arguably the most significant and most recent swinger's club case was Recreational Developments of Phoenix v. City of Phoenix, 220 F.Supp.2d 1054 (D. Ariz. 2002). In this case, the plaintiff's raised each of the above-mentioned constitutional issues in addition to overbreadth and vagueness. Additionally, they attempted to present experts to counter the city's secondary effects application to swinger's clubs, arguing that the traditional adult business studies did not apply to their businesses. The court systematically dismissed each of the plaintiff's constitutional arguments and struck all of their "expert" testimony and reports as unreliable.
Though not applicable precedent for American courts, the opinion in R. v. Labaye, 3 S.C.R. 728, 2005 SCC 80 (2005) from the Supreme Court of Canada may hold worthwhile lessons. In this case, Jean‑Paul Labaye of Montreal was charged with operating a "common bawdy-house," a violation under section 210(1) of the Criminal Code of Canada, for owning the club l'Orage, in which persons who paid membership fees and their guests could assemble and engage in group sex and oral sex and masturbate. All of these activities were consensual and, while members paid the club membership fees, the members did not pay each other in exchange for sex. In examining the question of what cases in which people are exposed to things they do not want to see can be considered indecent, the Court was mindful that sex is a more open subject in society, but nevertheless "there may be some kinds of sexual conduct the public display of which seriously impairs the livability of the environment and significantly constrains autonomy." This was especially important to the law at the basis of R. v. Labaye. It was concluded that in this particular case, Mr. Labaye was not guilty of indecency because of the actions he took to make sure only willing people would see the sexual conduct. In considering the issue of whether the harm is serious, the Court wrote that "The threshold is high"; certain things that certain Canadians will not like should be allowed to exist, unless it becomes so serious it threatens the society. While the measurement of the seriousness of the indecency would involve some "value judgements," the Court wrote that some objective guides could be provided by avoiding unwritten values, and by considering circumstances. In cases where the indecency is of a kind where people are exposed to undesirable things, an accused would be guilty if there is "a real risk that the way people live will be significantly and adversely affected by the conduct." Consent to see the activity will not amount to harm or indecency. In this particular case, the Court found that the seriousness of the harm need not even be considered because no evidence of harm was found, and even so "there appears to be no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society. Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society."
The key theme from cases involving swinger's clubs is that the various courts have broadly determined that, as commercial enterprises, they do not enjoy constitutional First Amendment protections. Therefore, any attack on zoning regulations and restrictive ordinances must address this key failing in previous litigation. Further, presenting a secondary effects study involving swinger's clubs runs the risk of either being discounted as occurred in Recreational Developments or creating a "battle of the experts" scenario similar to that in Peek-a-Boo Lounge of Bradenton.
The current City Metropolitan ordinance appears to have a number of weaknesses in that it is arguably over broad, is not a time, place and manner restraint, and is not the least restrictive method for controlling these adult businesses. It also potentially fails in its dependence on an unsubstantiated secondary effects rationale. Assuming no localized study, this ordinance could be attacked with the same strategy used successfully in the initial litigation in Flannigan's and Alameda Books. However, as in those cases, this would be a temporary victory. Similarly, the elements of the ordinance that are overly broad ("...contains rooms for couples....) or are not the least restrictive method (membership elements) are ripe for challenge. Yet again, however, this would be a temporary victory.
Alternatively, the recent Supreme Court opinion rendering same-sex marriage legal presents a new legal strategy that was not previously available to swinger's clubs and their patrons. Obergefell v. Hodges, 135 S.Ct. 2584 (2015). The key, applicable element from Obergefell for swinger's clubs is articulated by the court as follows:
"The fundamental liberties protected by the Fourteenth Amendment's Due Process Clause extend to certain personal choices central to individual dignity and autonomy, including intimate choices defining personal identity and beliefs. Courts must exercise reasoned judgment in identifying interests of the person so fundamental that the State must accord them its respect. History and tradition guide and discipline the inquiry but do not set its outer boundaries. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed." (citations removed) Allegedly, the judge in the Recreational Developments case insinuated to the plaintiffs that the plaintiffs would have been more successful had they pursued a privacy and intimate relations argument patterned after Lawrence v. Texas, 539 U.S. 558 (2003), of which Obergefell is a logical evolution. The key challenge with this strategy, however, is similar to the failing of previous swinger's club litigation in that both Obergefell and Lawrence focus on private intimate relations, whereas swinger's clubs have been considered commercial, public facilities. Swinger's clubs must overcome this designation to take advantage of this ruling. Additionally, while this approach is strongly aligned to the personal rights of the patrons of swinger's clubs and their freedoms of intimate choices, the clubs themselves and their owners must establish standing to invoke them. As commercial, public facilities, this will be almost impossible. Swinger's clubs have attempted in the past to escape treatment as a public, commercial business by adopting the form of members-only private clubs, but this strategy has generally failed. In Hendricks v. Commonwealth, 865 S.W. 2d 332 (Ky. 1993), the Supreme Court of Kentucky considered the private club claim of the Mousetrap Burlesque and adopted a multi-factor analysis to decide the issue. The factors the court considered were permanency in membership; substantiality of dues; numerical limit on membership; formality of admissions procedure; standards for admission; membership control over operation of the organization; the club's purposes; use of club facilities by nonmembers; and history of the organization. Id at 334-5. The Mousetrap Burlesque failed this analysis, as would most if not all swinger's clubs in operation today. To successfully pursue any strategy founded on rights of personal association and intimate choices, swinger's clubs must necessarily overcome this standard.
In the light of the history of secondary effects and swinger's club litigation over the last few decades, a new strategy is necessary. Development of a secondary effects study specific to the swinger's club industry may provide some benefit, but would likely be summarily discounted by the courts, opposed in a "battle of the experts" by municipalities or rendered moot by localized studies conducted by individual municipalities. Alternately, a promising approach is to restructure membership of swinger's clubs to better align with the legally recognized definition of a "private club." This could be accomplished by creating a more organized, centralized membership body similar to that of organizations such as the Freemasons, Rotary International, Moose Lodge and similar organizations which are invitation-only, private social organizations. Individual clubs could then require anyone entering to be a member of this national organization, thus establishing a more "restrictive" entry control. Properly structured, this approach would allow clubs across the country to cohesively attack the application of secondary effects as an end-run around the First Amendment rather than attacking the substance or validity of the secondary effects argument. Further research and analysis is necessary to structure this approach and validate its potential efficacy. Additionally, other strategies should be identified and evaluated to protect swinger's clubs from restrictive covenants. Nonetheless, the traditional head-on attack on the secondary effects doctrine appears by all measures to be fruitless in this context.