The case, styled Flava Works, Inc. v. City of Miami, concerns “CocoDorm.com, which operates an internet-based website of the same name. The CocoDorm website transmits images, via webcam, of the residents of 503 Northeast 27th Street, Miami, Florida, over the internet.” The question is whether Flava Works is operating as a business at the residence, even though its

principal place of business, as designated with the Florida Secretary of State, is 2610 North Miami Avenue, where the accounting and financial aspects of the business are conducted. Flava Works holds city and county occupational licenses to operate a video and graphics business at this address. In addition to distributing digital content through the internet, Flava Works distributes physical media, such as videos and magazines, to locations around the world. The computer servers, which house the digital content and provide access to the CocoDorm website, are not located at either the 27th Street residence or the Miami Avenue office.

Flava Works does not disclose the location of the 27th Street residence on its website or in any of its videos or magazines. None of the webcams are located outside of the residence and no external images of the home are broadcast over the internet. Neither customers nor vendors ever physically go to the 27th Street residence.

Can you correctly guess the answer? It’s nothing personal, of course.

The law is being challenged. In this opinion, the Ninth Circuit Court of Appeals held that the plaintiffs were entitled to a preliminary injunction barring enforcement of the sound ordinance. In a word, the ordinance is overbroad.  As the court of appeals recognized, “the amplified speech ordinance is a restriction on the time, place and manner of speech, so under the First Amendment it must be justified without reference to the content of the regulated speech, narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication of the information.” (quotation marks and citations omitted). 

In this case, at least so far, the City of Laguna Beach has failed

to present evidence that the amplified sound ordinance is narrowly tailored to its interests. Likelihood of success on the merits must be based on admissible evidence in the record, rather than surmise or speculation concerning what evidence could be produced at trial. The evidence before the district court did not support the court’s findings, and the district court’s characterization of the City’s briefs as “uncontested evidence” was erroneous. Arguments are not evidence.

The City argued that, because students in California are subject to compulsory attendance, students were a captive audience to the bullhorns. But as the court of appeals noted, “as to Laguna Beach High School, there was no evidence to support a blanket prohibition on the use of a bullhorn within 100 yards of the school 30 minutes before or after the dismissal bell.” Elaborating, the court noted:

The City argues that students in California are subject to compulsory attendance laws and they are therefore “practically helpless to escape . . . interference with [their privacy] . . . regardless of whether [they are] sitting in a classroom during regular hours of instruction, participating in after-school programs or walking to a bus.” But the City presented no evidence as to how after school activities would actually be disrupted by Klein’s proposed speech. Municipalities may protect the privacy of a truly “captive audience,” but only students who must remain in the school for extracurricular activities are even arguably captive, as those walking to a car or a bus may simply continue on their way. See Berger v. City of Seattle, 569 F.3d 1029, 1054-55 (9th Cir. 2009) (en banc); cf. Frisby v. Schultz, 487 U.S. 474, 487 (1988). The same lack of evidence undermines Laguna Beach’s argument concerning student privacy.

You can access oral argument of the appeal here.

The captive-audience doctrine might get some attention by the Supreme Court soon. You can learn why by reading David Hudson’s analysis of Snyder v. Phelps, 580 F.3d 206 (4th Cir. 2009), in a piece entitled, “Was father ‘captive’ to funeral protesters?” [published at First Amendment Center's Web site]

How would Don Draper and the Sterling Cooper Advertising Agency handle these industry issues?

• Stripper mobile grinds to a halt
• Appeals court reinstates limits on brothel ads

I’m not sure what Don & Co. would do. I bet they’d smoke a little. Drink a little. Repeat. Then craft a solution that involved advertising sex. Yes, I’m a master of the obvious. Check out the Ninth Circuit Court of Appeals‘ “brothel advertising” decision and decide for yourself.

This case requires us to resolve an interesting and surprisingly unanswered question of First Amendment law: whether the constitutionality of a zoning ordinance should only be evaluated with regard to the “alternative avenues of communication” it leaves open at the time it is passed, or also those it leaves open at the time it is challenged….

… opens this opinion issued today by the Second Circuit Court of Appels.

Get in early. Cuz they ain’t makin’ more land.

“Since I’ve filed the bill, I’ve gotten a lot of telephone calls and encouragement from pastors and others. But really what started it all was that bikini on that stallion,” Chism said….

Lowndes County Supervisor Leroy Brooks said most counties don’t have zoning ordinances.

“Certainly, we need something on the books in case somebody gets too outlandish,” Brooks said.

But Brooks said he’s told residents that The Pony is a legal establishment and has the right to operate whether or not there’s an issue of morality.

“I don’t drink, but I’m not trying to close down bars,” said Brooks, who inspected the club after receiving calls from residents. “The place was clean. They had security guards. I wasn’t really interested in looking at the women, but they looked OK.”

Not too far away, in the City of Destin, Florida, citizens are debating a similar concern. In this article by Tosha Sketo for The Destin Log, we learn that “Pastor James Calderazzo of Safe Harbor Presbyterian Church said he and his congregation do not want a strip club to move into Destin. But since Atlanta strip club owner Terry Stephenson settled [a federal lawsuit] with the city last month, it’s likely that topless dancers will be featured in the city by the end of the summer.” From the article …

Calderazzo said he asked his congregation to pray about the recent development. He urged his congregation to fight against wrong-doers but also “love those that are doing wrong.”

“We really need to seek the Lord in this,” he said.

The Destin Fire Control District is another potential neighbor of the strip club, but Fire Chief Kevin Sasser said he isn’t too concerned about a topless bar moving in near the station. He said he has consulted the Okaloosa Island Fire Chief about what effect strip clubs have had on the area and found out that it really didn’t have any impact.

He said call volumes hadn’t gone up, and were similar to call volumes from any establishment that sells alcohol.

“If any incidents do occur, then our response time would be shorter,” Sasser said. “That’s really the only difference.”

A hearty salute to Lowndes County Supervisor Leroy Brooks and Destin Fire Chief Kevin Sasser. If the First Amendment is a flame atop a hill on a moonless night, folks like Messrs Brooks and Sasser are shielding it from hurricane-like winds rolling up from the pews. Please forgive my mixed metaphors.

*Full disclosure: I was counsel on the Destin lawsuit along with my esteemed colleague, Gary Edinger.

A couple of items in the news. First, a provocative piece from the talented David Hudson of the First Amendment Center, entitled “Obscenity online: Do we need a national standard?”

Second, the Iowa Court of Appeals delivered this decision yesterday. Iowa charged Clarence Judy, owner of a strip club in Hamburg, Iowa, with three counts of public indecent exposure in violation of Iowa Code sections 728.5 (3), (4), and (6). At trial, Judy moved for a judgment of acquittal, alleging that his establishment fell into an exemption for “theaters.”  The district court agreed. And the State’s appeal was … dismissed. News coverage is available at How Appealing here. (HT: Howard Bashman).

It’s not what you show; it’s where you show.

The trial of Paul F. Little a.k.a. Max Hardcore included allegations of (1) improper comments by the government during closing argument; (2) improper jury instructions; (3) improper handling of juror irregularities; (4) failure of the judge to recuse herself; and (5) errors in sentencing. The Eleventh Circuit agreed that Mr. Little’s sentence was legally defective: 

Consistency demands that if a district court uses a local community standard then the pecuniary gain derived from the obscenity should be limited to the area defining those local community standards. Appellants’ sentences are being increased for sales in areas that could have community standards that deem the DVDs not to be obscene. Thus, when dealing with the DVDs in areas outside the Middle District of Florida, we must treat them as speech protected by the First Amendment until otherwise determined. We find that the one point increase in Appellants’ offense level for pecuniary gain over thirty thousand dollars was error. Therefore, we vacate the sentence and remand for re-sentencing.

You can read the decision here.

“The town of Clarksville’s legal case against Theatair X was dismissed Monday as a judge ruled the town’s ordinance is not valid and therefore cannot be enforced,” reports the NewsAndTribune.com (which, oddly enough, is a “.net” Web site)  here. The Clarksville Town Court held that the ordinance regulating sexually oriented businesses had a defect — and that defect was not severable. You can read the decision.

The Second Circuit Court of Appeals, in a 2-1 decision, threw out a district court’s preliminary injunction order, which had held the term “adult oriented store” unconstitutionally vague as applied to the plaintiff. You’ll find a link to the appellate decision at Howard Bashman’s always-informative blawg, How Appealing, here. I’m not sure that Peyton Manning himself could have saved this store’s injunction from jaws of the court of appeals. Maybe Brett Favre could have.

Maybe.

[I]n order to satisfy the burden explicated by the Seventh Circuit, the City must essentially make two showings: first, that adult entertainment businesses lacking facilities for on-premise viewing create the same secondary effects as establishments providing those services, and second, that the revised ordinance requiring Plaintiffs to close from midnight to 10:00 a.m. Monday through Saturday and all day on Sunday “has the purpose and effect of suppressing secondary effects, while leaving the quantity and accessibility of speech substantially intact.” Id. (quoting City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 449 (2002) (Kennedy, J., concurring)). If the City is unable to produce such evidence, the revised ordinance cannot stand.

Judge Barker goes on to grant injunctive relief to the Indianapolis adult bookstores. On the first question, the court referenced the “paternalistic” rationale offered by the City, but leapfrogged the issue “because even assuming that it is sufficient to show that adult businesses without on-premise viewing cause the same secondary effects as adult businesses which do offer such services, that is not the end of our inquiry.” Judge Evans pointed out that the City “still must demonstrate that its ordinance meets Justice Kennedy’s cost-benefit standard, meaning that it must advance some basis to show that its regulation ‘is likely to cause a significant decrease in secondary effects and a trivial decrease in the quantity of speech.’” 

The evidence submitted by the City up to this point does not support such a conclusion. In fact, the statistical evidence presented by the City comparing crime rates before and after enforcement of the revised ordinance actually shows that overall crime n3 actually increased by 19% following enforcement in the areas within 500 feet of Plaintiffs’ businesses, compared to an increase of 13% in the balance of the Indianapolis Police Department (”IPD”) district.

More specifically, on Sundays, crime characterized by the City as “violent/person crime,” which includes aggravated assault, forcible rape, homicide, and robbery, increased by 138% in the areas near Plaintiffs’ businesses after enforcement; “property crimes,” which include arson, burglary, larceny/theft, and motor vehicle theft, increased by 30% following enforcement of the revised ordinance; and overall crime increased by 46%. In comparison, on Sundays in the balance of the IPD district during that same time period, violent/person crime increased 14%, property crime increased 10%, and overall crime increased by only 11%. Id. During the hours of midnight to 10:00 a.m., property crimes within 500 feet of Plaintiffs’ locations increased by 59% and overall crime increased by 29%. During those hours in the balance of the IPD district, property crimes increased 25% and overall crime increased 21%.

Thoughtful application of Justice Kennedy’s concurrence in Alameda Books (i.e., the holding), as here, will be the Achilles’ Heel for municipalities that are targeting the business of adult business. The types of restrictions coveted by cities often affect adult-business profit, but not surrounding crime. Judge Barker noted that “[s]uch minimal decreases in a narrow category of crime are clearly too insignificant to determine whether the decrease in violent/person crime was due to enforcement of the revised ordinance as opposed to chance, let alone to justify the significant reduction in speech resulting from the City’s post-2003 regulation as required by Justice Kennedy’s cost-benefit analysis.”

Exactly.