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Doe v. Landry

United States Court of Appeals, Fifth Circuit

September 20, 2018

JANE DOE I; JANE DOE II; JANE DOE III, Plaintiffs - Appellees
v.
JEFF LANDRY, Attorney General for the State of Louisiana, Intervenor - Appellant JUANA MARINE-LOMBARD, in her official capacity as Commissioner, Louisiana Office of Alcohol and Tobacco Control, Defendant-Appellant

          Appeal from the United States District Court for the Eastern District of Louisiana

          Before STEWART, Chief Judge, CLEMENT, and SOUTHWICK, Circuit Judges.

          LESLIE H. SOUTHWICK, CIRCUIT JUDGE

         In 2016, Louisiana amended two statutes to require that entertainers on premises licensed to serve alcohol and whose breasts or buttocks are exposed to view be 21 years of age or older. Three erotic dancers aged 18, 19, and 20 filed a complaint against the state official responsible for the Act's enforcement, claiming the Act violated various provisions of the United States and Louisiana Constitutions. The district court concluded that the plaintiffs were likely to succeed on the merits of their claims that the Act is unconstitutionally overbroad and vague. It left other issues for later resolution but issued a preliminary statewide injunction barring enforcement of the Act. The State brought this interlocutory appeal. We disagree with some of the district court's reasoning as to whether the Act was narrowly tailored, but we agree that the statute is vague. We AFFIRM.

         FACTUAL AND PROCEDURAL BACKGROUND

         This lawsuit involves Act No. 395 from the 2016 regular session of the Louisiana legislature. The Act identically amended two Louisiana statutes that regulate activities on premises licensed to serve alcohol, adding a requirement that certain performers be at least 21 years old:

Subject to the provisions of Subsection D of this Section, entertainers whose breasts or buttocks are exposed to view shall perform only upon a stage at least eighteen inches above the immediate floor level and removed at least three feet from the nearest patron and shall be twenty-one years of age or older.

La. Rev. Stat. §§ 26:90(E), 26:286(E) (2016) (emphasis added). The only significant difference between the two statutes is that Section 26:90 regulates those who sell or serve typical alcoholic beverages, while Section 26:286 regulates those who sell or serve beverages of low-alcoholic content. Compare § 26:90(A)(1)(a), with § 26:286(A)(1)(a). Even though the pre-2016 version of Subsection E did not refer to age at all, the parties agree that erotic dancers previously had to be at least 18 years old. See §§ 26:90(E), 26:286(E) (2010).

         We will give more detail later, but for now we simply point out that neither before nor after the Act became effective were erotic dancers permitted to be completely nude. That is because another statutory provision limits what may be "exposed to view;" a dancer must at least be wearing, to use the terms of art, G-strings and pasties. §§ 26:90(D)(3); 26:286(D)(3). One of the issues in the case is how much covering is needed beyond that minimum for performers who are under age 21.

         The Act became effective August 1, 2016. The Louisiana Office of Alcohol and Tobacco Control ("ATC") soon began enforcing the Act's age requirement throughout Louisiana, except in New Orleans. It planned to begin enforcing the age requirement there on October 1, 2016.

         In September 2016, three female erotic dancers who were at least 18 years old but not yet 21 filed a complaint in the United States District Court for the Eastern District of Louisiana against Juana Marine-Lombard in her official capacity as Commissioner of the ATC. The plaintiffs sought injunctive and declaratory relief under 42 U.S.C. §§ 1983 and 1988, claiming that the Act facially violated the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 3, and 7 of the Louisiana Constitution.

         Plaintiff Jane Doe I was 20 years old when the complaint was filed. She is a resident of New Orleans and is employed as an erotic dancer in that city. Jane Doe I alleged she began dancing at age 18, "highly values the scheduling control her vocation allows her, and . . . enjoys expressing herself through dancing." In addition, she contended that as an erotic dancer, she earns enough money to meet her financial obligations and to save for her retirement, which she was unable to do prior to working as an erotic dancer. Jane Doe I asserted that in October 2016, when the Act was to be enforced in New Orleans, she would no longer be permitted to be employed as an erotic dancer.

         Jane Doe II was 18 years old when the complaint was filed. She is a resident of Baton Rouge and a student at Louisiana State University. She claimed to be entirely independent, as both of her parents died of cancer. Jane Doe II began working as an erotic dancer in June 2016 "in order to finance her college education and living expenses." She desired "to save enough money over the summer through her work as a dancer so that at the start of the school semester, she could concentrate fully on her studies."

         Jane Doe II stopped performing as an erotic dancer as of the Act's effective date. She began working as a "shot girl," which is a server that circulates throughout the establishment and offers patrons shots of alcohol for purchase. She contended that her income decreased by more than fifty percent when she stopped being a dancer and began working as a shot girl. Jane Doe II also argued that because of the Act she lost the ability to express herself through erotic dance.

         Jane Doe III was 19 years old when the complaint was filed. She is a resident of New Orleans and began working as an erotic dancer in September 2015. She was employed as an erotic dancer in Baton Rouge from January 2016 until the Act went into effect. Jane Doe III contended that on the date the Act became effective in Louisiana, she was forced to stop working as an erotic dancer and began working as a shot girl at the club where she formerly danced. Her income also allegedly dropped by more than half.

         The plaintiffs moved for a preliminary injunction, requesting that the district court enjoin Commissioner Marine-Lombard from enforcing the Act. On September 30, 2016, the district court entered a temporary restraining order prohibiting Commissioner Marine-Lombard from enforcing the Act anywhere within the state of Louisiana.

         On November 3, 2016, Jeff Landry intervened in the lawsuit in his official capacity as Attorney General for the state of Louisiana. Commissioner Marine-Lombard and Attorney General Landry (collectively, "the State") then filed separate responses to the plaintiffs' motion for preliminary injunction. The district court treated the separate responses as a single opposition because they addressed separate arguments that the plaintiffs had asserted in their motion.

         The district court determined that Act 395 was overbroad and vague under the federal Constitution. The remainder of the plaintiffs' claims were left for later resolution. The court enjoined the enforcement of the Act. The State timely brought an interlocutory appeal, citing 28 U.S.C. § 1292(a)(1), which allows appeals from the grant of injunctions. The court later instructed its clerk to stay and administratively close the case pending the appeal.

         DISCUSSION

         We review a district court's decision to grant a preliminary injunction for abuse of discretion, but we review its findings of fact for clear error and its conclusions of law de novo. Jefferson Cmty. Health Care Centers, Inc. v. Jefferson Par. Gov't, 849 F.3d 615, 624 (5th Cir. 2017). Plaintiffs are entitled to a preliminary injunction if they show (1) a substantial likelihood that they will prevail on the merits of their claims, (2) a substantial threat that they will suffer an irreparable injury if the injunction is not granted, (3) their threatened injury outweighs the threatened harm to the State, and (4) the public interest will not be disserved if the preliminary injunction is granted. Lake Charles Diesel, Inc. v. Gen. Motors Corp., 328 F.3d 192, 195-96 (5th Cir. 2003).

         Much of what follows addresses the likelihood of plaintiffs' success on the merits. After reviewing the individual claims, we will discuss the remaining elements that must be shown for an injunction.

         This case comes to us with a few uncontested premises. The parties do not dispute that "nude dancing is not without its First Amendment protections from official regulation." Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981). "[N]ude dancing of the type at issue here is expressive conduct, although . . . it falls only within the outer ambit of the First Amendment's protection." City of Erie v. Pap's A.M., 529 U.S. 277, 289 (2000) (plurality opinion). It is also uncontested that, prior to the Act, individuals age 18-20 could perform as entertainers with their breasts or buttocks exposed to view at alcohol-licensed establishments in Louisiana. Finally, it is undisputed that in Louisiana some sexually-oriented businesses are licensed to serve alcohol and others are not; the rules we are discussing apply to those serving alcohol.

         The disputes are these. The State contends that the plaintiffs have not shown a substantial likelihood of success on the merits of their overbreadth claim because the district court failed to find real and substantial overbreadth and failed to consider the State's limiting construction. The State further argues that the plaintiffs cannot show a substantial likelihood of success on their vagueness claim because no plaintiff has standing to bring a facial vagueness challenge and because the Act's text plainly reveals what conduct is prohibited by the Act. The plaintiffs assert that strict scrutiny should apply and that the Act should be enjoined on free expression or equal protection grounds if it is not enjoined because of overbreadth or vagueness.

         The first issue we discuss, because it affects much of what follows, is whether strict or intermediate scrutiny applies to these claims.

         I. Level of scrutiny

         The district court determined that the Act was not a content-based restriction. Accordingly, it applied intermediate scrutiny as opposed to the almost certainly invalidating strict scrutiny. We analyze whether that was correct.

         "The statute's predominant purpose determines the level of scrutiny." Illusions-Dallas Private Club, Inc. v. Steen, 482 F.3d 299, 308 (5th Cir. 2007). Intermediate scrutiny is "routinely" applied to regulation of alcohol at sexually-oriented businesses. Id. at 307. The district court determined that the predominant purpose of the Act was similar to that of other "alcohol regulations aimed at combating the harmful secondary effects of nude dancing." The Act had no legislative preamble to explain its purpose, but such a preamble or legislative history is not required to support a content-neutral purpose. See id. at 310. The district court relied on our holding in Illusions-Dallas that a predominant purpose for legislation regulating alcohol can properly be identified by the statute's text and its placement within a code of statutes regulating alcohol. See id. at 308.

         Another "routine" and identical holding applicable to similar legislation as that in Illusions-Dallas was in Baby Dolls Topless Saloons, Inc. v. City of Dallas, 295 F.3d 471, 484-85 (5th Cir. 2002). We held there that the burden on expression is incidental to the content-neutral exercise of authority to regulate the sale of alcohol. Id.

         The plaintiffs quote statements from two state legislators to support their view that this was a content-based restriction based on a view of morally acceptable conduct. The views of individual legislators as to their special interest in a legislative enactment, however, do not override our clear caselaw such as Illusion-Dallas that a regulation such as ...


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