United States Court of Appeals
For the First Circuit
No. 12-2121
SHOWTIME ENTERTAINMENT, LLC,
Plaintiff, Appellant,
v.
TOWN OF MENDON, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Torruella, Howard, and Kayatta,
Circuit Judges.
Thomas Lesser, with whom Michael Aleo and Lesser, Newman &
Nasser, LLP were on brief, for appellant.
Brandon H. Moss, with whom Robert S. Mangiaratti and Murphy,
Hesse, Toomey & Lehane, LLP were on brief, for appellees.
October 8, 2014
TORRUELLA, Circuit Judge. This case directs our
attention to the extent by which a town may abridge expressive
activity, protected under the First Amendment and the Massachusetts
Constitution, as a valid exercise of its zoning power. The Town of
Mendon, Massachusetts ("Mendon") has set forth a veritable maze of
zoning restrictions that are singularly applicable to adult-
entertainment businesses. Owning one of the few parcels of land
within Mendon city limits still available for the conduct of such
business, Showtime Entertainment, LLC ("Showtime"), attempted to
navigate these many restrictions. The result: Showtime received an
adult-entertainment license but found its preferred building plans
circumscribed in both size and height, its proposed operating hours
curtailed, and its ability to receive a license to sell alcohol
foreclosed.
Before the district court, Mendon cast these restrictions
as appropriate measures by which it sought to control only the
secondary effects uniquely related to the expressive activity --
altered town aesthetics, heavy traffic flow, and increased crime.
Showtime retorted that the restrictions infringed on its ability to
present live nude dancing to a degree that violated the Federal
Constitution and the Massachusetts Declaration of Rights.
Viewing Showtime's suit as a facial challenge to the
bylaws, the district court entered summary judgment in favor of
Mendon, concluding that the restrictions in question were
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sufficiently tailored towards controlling the secondary effects of
speech. After careful consideration, we disagree that the bylaws
regulating the size, height, and hours of operation support a
substantial, content-neutral governmental interest. We find that
these bylaws -- which have no effect on other businesses of like
size, height, or operating hours -- unconstitutionally infringe on
Showtime's right to engage in a protected expressive activity. We
also find that the application of Article 16 of the Massachusetts
constitution to the Mendon bylaw banning the sale and consumption
of alcohol is a close issue of constitutional law and difficult for
us to predict. Therefore, we certify questions related to this
claim to the Massachusetts Supreme Judicial Court.
I. Background
Because this appeal stems from a grant of summary
judgment, we begin by setting forth the facts in the light most
favorable to Showtime, the losing party below. Prescott v.
Higgins, 538 F.3d 32, 38 (1st Cir. 2008).
A. Mendon creates the Adult-Entertainment Overlay District
In May of 2008, at its annual town meeting, Mendon
amended its zoning bylaws. Of relevance to this litigation was the
addition of section 5.01, which created an Adult-Entertainment
Overlay District, limiting the location of any adult-entertainment
business -- a category that includes adult bookstores, video
stores, paraphernalia shops, and businesses showing live nude
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dancing -- to four specific parcels of land within city limits.
These contiguous parcels are located at 41, 43, 47, and 49 Milford
Street, and they all border a state highway, Route 16. The text of
section 5.01 included a preamble setting forth its purpose:
The purpose of this Adult Entertainment
Overlay District section of the Town of Mendon
Zoning Bylaws is to address and mitigate the
secondary effects of adult entertainment
establishments. . . . These effects include
increased crime, and adverse impacts on public
health, the business climate, the property
values of residential and commercial property
and the quality of life.
The provisions of this section have
neither the purpose nor intent of imposing a
limitation on the content of any communicative
matter or materials, including sexually
oriented matter or materials. Similarly, it
is not the purpose or intent of this Section
(Overlay District) to restrict or deny access
to adult entertainment establishments or to
sexually oriented matter or materials that is
protected by the Constitutions of the United
States and the Commonwealth of Massachusetts
. . . .
Town of Mendon Zoning By-Laws, § 5.01(b).1
Adult-entertainment businesses seeking to operate in
Mendon must also abide by licensing requirements defined in state
law. See Mass. Gen. Laws ch. 140, § 183A (requiring a license to
operate an adult-entertainment business in the Commonwealth of
Massachusetts); id. § 1 (stating that a town's Board of Selectmen
1
The constitutionality of establishing the Adult-Entertainment
Overlay District is not disputed by Showtime. Similar zoning
restrictions have previously been upheld under intermediate
scrutiny. See, e.g., D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d
50, 53, 61 (1st Cir. 1999).
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will serve as its licensing authority). On June 2, 2008, acting
pursuant to their authority as the town's licensing board, The
Mendon Board of Selectmen adopted a set of regulations regarding
the eligibility standards for adult-entertainment licenses. These
regulations, spanning eighteen pages, require that all adult-
entertainment businesses ensure adequate lighting, signage, and
noise reduction; hire security personnel; and prohibit touching or
mingling between patrons and employees clothed in "less than opaque
attire." See Mendon Board of Selectmen, Town of Mendon Regulations
Governing Adult-Entertainment Establishments Pursuant to M.G.L.
Ch. 140 Sec. 183A (2008) (the "Adult-Entertainment Regulations").
None of those regulations are at issue in this case, and it is
uncontested that Showtime is responsible for ensuring full
compliance with these mandates in its operation of an adult-
entertainment business.
B. Showtime applies for a license; Mendon responds
On June 10, 2008, soon after the passage of these
regulations, Showtime applied for a license to operate an adult-
entertainment business (presenting live nude dancing) on a parcel
of land within the Overlay District. Showtime's proposed building
plan included an 8,935-square-foot "Adirondack style" structure
with space to accommodate 244 patrons and 25 employees, to be
accompanied by an 82-space parking lot.
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At a September 15, 2008 town meeting, several residents
spoke out against Showtime's pending proposal, citing their fear
that the facility would exacerbate traffic concerns along Route 16.
Also in early September 2008, Mendon citizens petitioned the Board
of Selectmen to enact additional bylaws (1) restricting the maximum
size and height allowances for buildings operating adult-
entertainment businesses; (2) limiting the operating hours of such
businesses; and (3) banning the sale or consumption of alcohol on
their premises. The stated purposes for these additional bylaws,
respectively, were to (1) protect Mendon's "historically rural
atmosphere"; (2) support traffic safety; and (3) reduce crime
associated with the combination of intoxication and adult
entertainment.
The next month, Mendon issued decisions regarding both
Showtime's license application and the citizen-proposed bylaws.
First, on October 1, 2008, the Board of Selectmen denied Showtime's
license request, citing concerns about the potential negative
health and safety effects of increased traffic, noise pollution,
and criminal activity. Then, on October 7, 2008, Mendon held a
special meeting concerning the petition for additional bylaws
restricting the operation of adult-entertainment businesses. At
this meeting, the citizens' group Speak Out Mendon voiced their
support of these proposed amendments as a means of curbing the
perceived adverse effects of adult-entertainment businesses.
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Mendon residents voted to approve the bylaws, enacting
additional zoning restrictions requiring that all adult-
entertainment businesses (1) have a facility no bigger than 2,000
square feet; (2) have a facility no taller than fourteen feet; and
(3) open no earlier than 4:30 p.m. on days when school is in
session. See Town of Mendon Zoning By-Laws, § 5.01(i)(i-ii),(iv).
The written justifications for these restrictions were to maintain
Mendon's "historically rural atmosphere," to ensure traffic safety,
and "to provide an opportunity for all elementary school buses to
finish student bus routes." Id. § 5.01(i)(i),(iv). No other
business in Mendon, including any operating within the Adult-
Entertainment Overlay District, is subject to the same zoning
restrictions.
At the same time, Mendon's general bylaws were also
amended, so as to forbid the granting of an alcohol sales license
to any adult-entertainment business and to ban the consumption of
alcohol by patrons within any adult-entertainment business. See
Town of Mendon General By-Laws, ch. XXV. No other business in
Mendon is subject to such a restriction on the licensing and
consumption of alcohol, which applies only to "[adult-
entertainment] establishments . . . located within the layout lines
of the Adult Entertainment Overlay District."2 The stated
2
Adult-entertainment business means any "adult bookstore," "adult
motion picture theater," "adult paraphernalia store," "adult video
store," or an "establishment which displays live nudity for its
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justification for this amendment was that "the presence of alcohol
is documented to exacerbate secondary crime effects at sexually
oriented businesses." Id.
The Massachusetts Attorney General reviewed the proposed
amendments and, on January 20, 2009, issued an opinion letter
approving the zoning bylaws restricting size, height, and operating
hours of adult-entertainment businesses in Mendon. The Attorney
General also approved the prohibition of the sale and consumption
of alcohol within adult entertainment establishments based on the
conclusion "that the validity of these sections is fairly
debatable, and [] they are not clearly in conflict with any statute
or constitutional provision." See Letter from Attorney General
Martha Coakley to Margaret Bonderenko, Town Clerk, January 20,
2009, at 2. This letter cautioned, however, that the Attorney
General's approval process "does not and cannot include the kind of
factual inquiry a court might make in resolving an 'as applied'
constitutional challenge."3 Id.
patrons" as defined by Mass. Gen. Laws ch. 40A, § 9A. The
definition for adult businesses in Mass. Gen. Laws ch. 40A, § 9A is
businesses that show films or have as a "significant portion of
[their] stock" items that are "characterized by their emphasis
depicting, describing, or relating to sexual conduct or sexual
excitement as defined."
3
Another provision of the zoning bylaws, requiring that an Adult-
Entertainment business operate no closer than 750 feet from any
establishment licensed to sell liquor, was not approved and never
took effect.
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C. Showtime reapplies for an adult-entertainment license
Following the adoption of these new bylaws, Showtime
renewed its application for an adult-entertainment license,
presenting revised building plans to the Board of Selectmen. This
time, Showtime proposed a single-story, fourteen-foot-high, 2,000-
square-foot building that would accommodate 74 patrons, be staffed
by 20 employees, and feature 103 parking spots. At the public
hearings regarding this proposal, Showtime stated that it would not
seek a liquor license and would not open for operation prior to
4:30 p.m. Showtime also presented a traffic study performed by
Greenman-Pedersen, Inc. (the "Greenman Study"), which concluded
that "[p]eak-hour traffic volume increases as a result of the
development [would] have negligible impacts on [traffic near the
Overlay District]." Mendon residents argued against this study,
suggesting that it failed to account for traffic already caused by
nearby developments and finding error in the fact that it based its
estimates on a hypothetical 6,800-square-foot structure, rather
than the smaller, 2,000-foot structure actually proposed.
On May 3, 2010, the Mendon Board of Selectmen approved
Showtime's second application in a ten-page decision letter,
listing a subset of the applicable bylaws and regulations which
would govern Showtime's license.4
4
A sampling of these regulations require that Showtime: place no
parking signs along Route 16; soundproof its facility; ensure that
no materials or signage of a sexual nature be visible from outside
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D. The district court finds for Mendon
Displeased with the limitations on its adult-
entertainment license, Showtime filed suit, claiming that the
zoning bylaws restricting its operating hours and the size and
height of its building were unconstitutional restrictions of
expressive activity protected by the First Amendment. See U.S.
Const. amend. I. It also challenged the ban on the sale and
consumption of alcohol on the premises, alleging that this
restriction was in violation of Article 16 of the Massachusetts
Declaration of Rights. Mass. Const. art. XVI.5 The parties filed
cross-motions for summary judgment and, on August 9, 2012, the
district court entered judgment in favor of Mendon on all claims
related to the constitutionality of the bylaws now on appeal.6 The
or appear in facility windows; monitor its parking areas nightly;
and hire an off-duty police officer to patrol the premises on
Thursday, Friday, and Saturday nights. See Decision re: Showtime
Entertainment, LLC, Town of Mendon Board of Selectmen (May 3,
2010).
5
Showtime also brought a claim under the Massachusetts Civil
Rights Act ("MCRA"), which prohibits the interference with
federally or state-protected rights by "threats, intimidation, or
coercion." Mass. Gen. Laws ch. 12, § 11I-H. The district court
dismissed this claim on the grounds that municipalities are immune
from suit under the MCRA. On appeal, Showtime alleges that this
immunity applies only to claims for damages and asserts that it can
seek injunctive relief against officials in their official capacity
under the MCRA for "economic coercion." Because we otherwise find
for Showtime, invalidating the bylaws in question, we need not
consider this claim on appeal.
6
In the district court, Showtime also challenged a special
permitting requirement applicable only to adult-entertainment
businesses. The district court held that this requirement was an
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district court reasoned that the restrictions served an important
government interest, were sufficiently narrowly tailored, and left
open alternative means of communication. Showtime now appeals,
largely reasserting the arguments it made before the district
court.
II. Discussion
Where a district court has granted a motion for summary
judgment, our review proceeds de novo. Segrets, Inc. v. Gillman
Knitwear Co., 207 F.3d 56, 61 (1st Cir. 2000). In undertaking this
review, we adopt the view of the record that is most favorable to
the non-moving party. LeBlanc v. Great Am. Ins. Co., 6 F.3d 836,
841 (1st Cir. 1993) (citations omitted). We give no heed to
speculative, unsupported, or unreasonable conclusions, but favor
Showtime's factual presentation insofar as it finds support in the
record. Medina-Rivera v. MVM, Inc., 713 F.3d 132, 134 (1st Cir.
2013). We let a grant of summary judgment lie only where "there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a).
A dispute is genuine where there exists "evidence [] such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
unconstitutional prior restriction on speech, granted summary
judgment in favor of Showtime on that claim, and awarded Showtime
attorney's fees and costs in the amount of $24,754.56. Mendon does
not appeal this decision.
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That the parties here filed cross-motions for summary
judgment does nothing to alter or amend this standard of review,
but demands only that we "determine whether either of the parties
deserves judgment as a matter of law on [the] facts that are not
disputed." Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228,
230 (1st Cir. 1996). In so doing, "the court must consider each
motion separately, drawing inferences against each movant in turn."
Reich v. John Alden Life Ins. Co., 126 F.3d 1, 6 (1st Cir. 1997).
A. The constitutionality of the zoning bylaws
1. Preliminary wrangling: facial versus as-applied
The parties first spar over the nature of Showtime's
constitutional claim, disputing whether it is a facial or an as-
applied challenge. Mendon argues -- and the district court agreed
-- that Showtime is limited to a facial challenge, given that it
has never been sanctioned for violating any town bylaw. Showtime
disagrees, arguing that it is clearly subject to the bylaws,
allowing us to assess the application of these bylaws as-applied.
Showtime points out that its initial license application was
rejected based on size and height concerns, and that its renewed
license application was only accepted based on its agreement to
strictly adhere to the bylaws as amended. In the alternative, it
notes that, given the facts of this case, there is little practical
distinction between a facial and an as-applied challenge.
Circumscribed as the universe of applicability for these bylaws is
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-- they reach only the four plots of land within the Adult-
Entertainment Overlay District -- Showtime suggests that a facial
challenge, in this context, must proceed in a near-identical
fashion to an as-applied challenge.
In fact, this case highlights the sometimes nebulous
nature of the distinction between facial and as-applied challenges,
for Showtime's challenge does not fit neatly within our traditional
concept of either type of claim. Still, we are not left without
guidance in navigating this issue, as the Supreme Court has faced
a similar duality in the First Amendment context. See John Doe
No. 1 v. Reed, 561 U.S. 186, 194 (2010). In Reed, the Court noted
that the challenge on appeal "ha[d] characteristics of both" facial
and as-applied challenges. Id. It concluded, however, that "[t]he
label is not what matters. The important point is that [the] claim
and the relief that would follow . . . reach beyond the particular
circumstances of these plaintiffs. [It] must therefore satisfy our
standards for a facial challenge to the extent of that reach."
Id. (citing United States v. Stevens, 559 U.S. 460, 473 (2010)).
We understand the relief sought here to be the
invalidation of the zoning bylaws, not merely a change in their
application to Showtime. Drawing guidance from Reed, it is clear
that this is a request that "reach[es] beyond" the precise
circumstances of Showtime's license application. See id. As such,
Mendon must prove that the bylaws have "a plainly legitimate
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sweep." Wash. State Grange v. Wash. State Republican Party, 552
U.S. 449 (2008); see also McCullen v. Coakley, 571 F.3d 167, 174
(1st Cir. 2009) (describing the requirement that a statute "has a
plainly legitimate sweep" as a "refinement of [the Supreme Court's]
earlier statement that a party mounting a facial challenge 'must
establish that no set of circumstances exists under which the Act
would be valid.'" (quoting United States v. Salerno, 481 U.S. 739,
745 (1987))).7
As Showtime notes, however, the bylaws in question apply
only to adult-entertainment businesses within Mendon's city limits,
and consequently, only within the four-parcel Adult-Entertainment
Overlay District. The four plots lay adjacent to one another,
share a common access route, and are practically equidistant from
Mendon's residential and other commercial areas, indicating that
the effect on traffic, property values, or Mendon's cityscape
created by an adult-entertainment business located on any one of
these plots would be the same as that created by any of the other
7
A facial challenge may also succeed where even though "one or
more valid application exists, the law's reach nevertheless is so
elongated that it threatens to inhibit constitutionally protected
speech." McGuire v. Reilly, 260 F.3d 36, 47 (1st Cir. 2001). This
standard refers to a party's ability to challenge a restriction on
speech based on its overbreadth. See Stevens, 559 U.S. at 473 ("In
the First Amendment context . . . this Court recognizes a 'second
type of facial challenge,' whereby a law may be invalidated as
overbroad if a substantial number of its applications are
unconstitutional, judged in relation to the statute's plainly
legitimate sweep." (quoting Wash. State Grange, 552 U.S. at 449 n.6
(2008)).
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three. As such, the manner in which the bylaws apply to Showtime
is effectively identical to any of the bylaws' other potential
applications. Even limited to a facial challenge, therefore,
Showtime's claim is not one in which our court must indulge in
vivid imaginings, creating a large set of hypothetical applications
so as to test their possible validity. See Reed, 561 U.S. at 194
(explaining that a facial challenge must consider all possible
applications of the law to "the extent of [its] reach" (emphasis
added)). Here, that reach is exceedingly small. Therefore,
although we treat this claim as a facial challenge, the practical
effect of that distinction, as relevant to Showtime's claim, is
strikingly minimal.
2. The level of scrutiny: strict or intermediate
We turn next to the task of identifying the appropriate
level of scrutiny to be applied to Mendon's regulations. In
undertaking this analysis, we travel a well-worn path. It is
axiomatic that "the government cannot inhibit, suppress, or impose
differential content-based burdens on speech." McGuire v. Reilly,
260 F.3d 36, 42 (1st Cir. 2001) (citing Turner Broad. Sys., Inc. v.
FCC, 512 U.S. 622, 641 (1994)). This broad protection further
extends, without question, to "expressive conduct," R.A.V. v. City
of St. Paul, 505 U.S. 377, 382 (1992) (citing Texas v. Johnson, 491
U.S. 397, 406 (1989)), including those expressive activities
associated with adult entertainment. To sustain such a content-
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based restriction, the government must prove both a compelling
state interest and that the means used to achieve that interest are
the least restrictive available. See, e.g., United States v.
Playboy Entm't Grp., Inc., 529 U.S. 803, 813 (2000). In practice,
this test is exceedingly difficult, and the vast majority of such
regulations are held to unconstitutionally inhibit speech. See
McGuire, 260 F.3d at 43.
In contrast, content-neutral restrictions on speech are
awarded more deference, for they are understood to "burden speech
only incidentally." Id. Because courts have recognized that such
restrictions "portend less jeopardy for freedom of speech," they
are assessed under a still-stringent, but less-exacting form of
review. Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 737
(1st Cir. 1995). This intermediate level of scrutiny allows
regulations justified by neutral purposes, rather than by the
content of speech, to survive so long as they support a significant
government interest, do not burden substantially more speech than
necessary, and leave available alternative channels of
communication. Clark v. Cmty. for Creative Non-Violence, 468 U.S.
288, 293 (1984).
In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41
(1986), the Supreme Court crystallized its approach to zoning
regulations affecting adult-entertainment businesses. There, the
Court made clear that "with respect to businesses that purvey
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sexually explicit materials, zoning ordinances designed to combat
the undesirable secondary effects of such businesses" are rightly
considered content neutral. Id. at 49 (citing Young v. Am. Mini
Theatres, Inc., 427 U.S. 50, 70-71 & n.34 (1976)). The Court
explained: "[w]e have here merely a decision by the city to treat
certain movie theaters differently because they have markedly
different effects upon their surroundings . . . ." Id. (quoting
Young, 427 U.S. at 82 n.6 (Powell, J., concurring)).
Where regulatory distinctions are drawn between sexually-
oriented businesses and their less prurient counterparts,
therefore, the regulation is content-neutral only if the
differential treatment does not stem from a disapproval of the
former business-type's expression. Instead, regulations focused on
secondary effects of adult entertainment, where such effects are
uniquely precipitated by that type of entertainment, are considered
content neutral despite their uneven application. See Nat'l
Amusements, 43 F.3d at 738.
We recognize that such analytically neat
compartmentalization often becomes muddled in practice. See, e.g.,
City of Renton, 475 U.S. at 47 ("At first glance, the [] ordinance
. . . does not appear to fit neatly into either the 'content-based'
or the 'content-neutral' category."); Nat'l Amusements, 43 F.3d at
737 ("The concept of what constitutes a content-based as opposed to
a content-neutral regulation has proven protean in practice."). In
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this case, however, the distinction is ultimately immaterial, as
the bylaws cannot survive even the less onerous test of
intermediate scrutiny. See Clark, 468 U.S. at 293 (explaining that
intermediate scrutiny requires the showing of a substantial
governmental interest, achieved through means that do not burden
more speech than necessary and that leave open adequate alternative
channels of communication). Therefore, recognizing that the zoning
bylaws' express terms set forth content-neutral purposes, we
proceed in the application of intermediate scrutiny while
withholding judgment as to the bylaws' true content neutrality.
3. The underinclusiveness of Mendon's stated interests
Mere reference to a neutral intent does not suffice to
satisfy Mendon's burden to prove that its bylaws in fact further a
substantial governmental interest unrelated to the content of the
speech. See, e.g., United States v. O'Brien, 391 U.S. 367, 377
(1968) (requiring a regulation to "further[] an important or
substantial governmental interest . . . unrelated to the
suppression of free expression); Nat'l Amusements, 43 F.3d at 738
("[E]ven when a municipality passes an ordinance aimed solely at
the secondary effects of protected speech . . . the ordinance may
nevertheless be deemed content-based if the municipality
differentiates between speakers for reasons unrelated to the
legitimate interests that prompted the regulation." (emphasis
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omitted) (citing City of Cincinnati v. Discovery Network, Inc., 507
U.S. at 429-31)).
Indeed, where such secondary effects flow in equal
measure from other businesses, which nonetheless are left untouched
by the regulation in question, it stands to reason that such
underinclusiveness raises questions as to whether the proffered
interest is truly forwarded by the regulation, or is in fact
substantial enough to warrant such regulation. See Erznoznik v.
City of Jacksonville, 422 U.S. 205, 215 (1975) ("This court
frequently has upheld underinclusive classifications on the sound
theory that a legislature may deal with one part of a problem
without addressing all of it. This presumption of statutory
validity, however, has less force when a classification turns on
the subject matter of expression."); see also Nat'l Amusements, 43
F.3d at 738. In other words, we will not blindly accept
regulations that purport to address secondary effects where there
is "no justification . . . for distinguishing" between the effects
caused by adult-entertainment businesses and the effects caused by
any other business. Erznoznik, 422 U.S. at 215 (failing to find
any support for treating traffic concerns caused by adult movie
theaters differently than traffic concerns caused by any other
drive-in theater).
We pause to make clear, as the district court recognized,
that "the First Amendment imposes not an 'underinclusiveness'
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limitation but a 'content discrimination' limitation upon a State's
prohibition of proscribable speech." R.A.V., 505 U.S. at 387.
Nonetheless, we rightly pay attention to underinclusiveness where
it reveals significant doubts that the government indeed has a
substantial interest that is furthered by its proffered purpose.
Florida Star v. B.J.F., 491 U.S. 524, 540 (1989) ("[F]acial
underinclusiveness . . . raises serious doubts about whether
Florida is serving the interests specified . . . ."); FCC v. League
of Women Voters of Cal., 468 U.S. 364, 396 (1984) ("[P]atent . . .
underinclusiveness . . . 'undermines the likelihood of a genuine
[governmental] interest.'" (quoting First Nat'l Bank of Bos. v.
Belloti, 435 U.S. 765, 793 (1978)); Carey v. Brown, 447 U.S. 455,
465 (1980) ("The apparent . . . underinclusiveness of the statute's
restriction would seem largely to undermine appellant's claim that
the prohibition . . . can be justified by reference to the State's
interest . . . ."); Erznoznik, 422 U.S. at 215; Auburn Police Union
v. Carpenter, 8 F.3d 886, 897 n.15 (1st Cir. 1993) ("A statute's
underinclusiveness . . . indicates that the government is not, in
fact, serving the proffered compelling interest.").
The amendments to the zoning bylaws expressly set forth
two purposes: (1) maintaining the rural aesthetics of Mendon as a
small town; and (2) avoiding traffic congestion, particularly on
days when school is in session. After careful consideration, we
find both stated purposes to be patently underinclusive, and thus,
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insufficient to support Mendon's claim that it has regulated adult-
entertainment businesses only out of a substantial interest in
curbing the secondary effects of such businesses.
i. Mendon's rural aesthetics
The October 7, 2008, amendments to Mendon's bylaws stated
that size and height restrictions were intended to protect Mendon's
rural, small-town aesthetic. Showtime suggests that this claim is
clearly pretextual, given that the bylaws apply only within the
Adult-Entertainment Overlay District, a heavily commercialized
zone. In fact, it is uncontested that the character of the Adult-
Entertainment Overlay District is far from rural in nature. It
currently houses multiple large or multi-story commercial
structures, including a 6,900-square-foot self-storage facility, a
drive-in movie theater with an estimated capacity of 700 vehicles,
and a 10,152-square-foot nightclub. At the time Showtime applied
for an adult-entertainment license, the lot it owned was occupied
by a 2,595-square-foot, "1.9 story" landscaping supply store. Even
after the bylaws' passage, none of these businesses are subject to
size or height restrictions.
It is thus unclear, and Mendon does not clarify, what
particular negative effect the size and height of an adult-
entertainment business would have on rural aesthetics that is not
shared by all other large, commercial structures (including those
already operating in the Adult-Entertainment Overlay District).
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This shortcoming was made particularly clear during the following
exchange at oral argument:
THE COURT: There's a warehouse in that same
block, isn't there?
MENDON: On the Showtime lot there's a
landscaping supply business. There is a self-
storage facility in the zone as well.
THE COURT: Yes, and how big is that?
MENDON: It is larger than 2,000 square feet.
I think it's six or seven [thousand square
feet.]
. . . .
THE COURT: Does the warehouse impact what the
town is trying to achieve?
MENDON: The warehouse does not.
. . . .
THE COURT: It's not the size of the building,
it's what may be perceived inside the
building?
MENDON: It's, it's a combination of factors, I
think it is the size of the building, but it's
also what's in the building . . . .
This exchange concisely illustrates the flaw in Mendon's reliance
on aesthetics: a large adult-entertainment business has no
secondary effect distinct from a large building of another sort, at
least not without reference to what goes on "in the building." Cf.
Discovery Network, 507 U.S. at 425 ("The city has asserted an
interest in esthetics, but respondent publisher's newsracks are no
greater an eyesore than the newsracks permitted to remain on [city]
sidewalks."). If size does matter, but matters only in the context
of what type of business a building houses, this belies any notion
that Mendon's size and height requirements are "justified without
reference to the content of the regulated speech." Ward v. Rock
Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark, 468 U.S.
-22-
at 293). Mendon thus appears to have differentiated between
speakers for reasons "unrelated to the legitimate interests that
prompted the regulation," a fact that flies in the face of Mendon's
claim that the bylaws in fact further a substantial, content-
neutral, interest in rural aesthetics. Nat'l Amusements, 43 F.3d
at 738 (emphasis omitted).
Given the unchallenged regulations on building appearance
and advertisement, we see no cognizable difference in aesthetic
impact between a large building hosting adult-entertainment
activities and a large building hosting a bridge club or a bible
study within the Adult-Entertainment Overlay District.8 Cf. Ward,
491 U.S. at 793 ("Any governmental attempt to serve purely esthetic
goals by imposing subjective standards . . . would raise serious
First Amendment concerns."). The effect that the size and height
of any one of these buildings would have on Mendon's cityscape,
"small town feel," and rural aesthetics is identical to the effect
of any other. Moreover, this is a fact which Mendon seems to
acknowledge, for it offers no argument -- beyond its problematic
concession at oral argument -- that adult-entertainment businesses
8
Showtime has not challenged the regulations and licensing
restrictions forbidding it from placing signs or advertisements for
its adult-entertainment business on the building's exterior. It
has also not challenged the portion of section 5.01 requiring that
"[a]ppearance of buildings for adult entertainment shall be
consistent with the appearance of buildings in similar (but not
specifically 'adult') use in Mendon, not employing unusual color or
building design, which would attract attention to the premises."
Town of Mendon Zoning By-Laws, § 5.01(f)(vi).
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have a distinct effect on purely aesthetic concerns. We therefore
find that the underinclusive nature of this size and height
restriction defeats Mendon's assertion that the bylaws truly serve
a substantial interest in maintaining rural aesthetics. See, e.g.,
Auburn Police Union, 8 F.3d at 897 & n.15.
Before moving on, we note that Mendon attempts on appeal
to subtly change the contours of its stated interest, arguing that
"[b]light, decreased property values, and deteriorated
neighborhoods" (interests that are more closely related to monetary
value and quality of life than to a "rural aesthetic") may spread
beyond the four-plot Adult Entertainment Overlay District.
Therefore, it suggests that our review must also extend beyond the
Adult Entertainment Overlay District -- a clearly commercialized
area bordering a state highway, which boasts of little by way of
rural aesthetic -- and take into consideration Mendon's rural
nature as a whole. We refuse to do so, for the simple reason that
this suggestion runs contrary to the multitude of studies Mendon
itself entered into the record. These studies exhibit a common
theme regarding the effect of adult-entertainment businesses on
property values and quality of life in residential neighborhoods:
these effects have a limited radius. The studies caution that any
negative effects caused by adult-entertainment businesses on the
surrounding area extend, on average, a few city blocks in
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distance.9 Therefore, even if Mendon could recraft its stated
interest in aesthetics to encompass these issues, it has presented
to our court a wealth of evidence suggesting that its size and
height requirements would not in fact further the avoidance of such
negative effects throughout the city. See Nat'l Amusements, 43
F.3d at 741 ("[A] governmental interest woven exclusively out of
the gossamer threads of speculation and surmise cannot be termed
substantial.").
ii. Mendon's traffic concerns
Avoiding traffic congestion along Route 16 is another
stated justification for the size, height, and operating hours
restrictions of the amended bylaws. Mendon asserts that it has a
substantial interest in combating the neutral, secondary effect of
increased traffic caused by patrons traveling to and from the
Adult-Entertainment Overlay District. Specifically, restricting
the opening hours for adult-entertainment businesses to 4:30 p.m.
is justified as a means of allowing all local school buses to
complete their routes absent increased traffic. Multiple studies,
Mendon argues, suggest that traffic congestion is created by adult-
entertainment businesses, such that a town may choose to regulate
the operating hours and size of those businesses to curb the
effect. Showtime counters this argument, pointing to the fact that
9
The distances referenced in the studies range from 200 to
roughly 3,000 feet.
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to receive an entertainment license under Massachusetts law, a
business must already prove that its operations would not cause "an
unreasonable increase" in traffic levels. Mass. Gen. Laws ch. 140,
§ 183A. It also presents the Greenman Study as proof that any
traffic effect would be, at most, negligible.
Careful scrutiny reveals that the bylaws are equally
underinclusive as related to traffic concerns as they are to
Mendon's rural aesthetic. We are thus convinced that Mendon, on
this record, has not set forth evidence that the bylaws actually
further its substantial interest in curbing traffic congestion in
a manner sufficient to survive intermediate scrutiny. For one,
Mendon fails to clarify how the traffic effects of adult-
entertainment businesses along Route 16 are in any way distinct
from the traffic effects that would be caused by any other large,
commercial business that might choose to locate along the same
stretch of highway. For example, Mendon makes no suggestion that
these bylaws would apply to a large restaurant, clothing retailer,
or car dealership (all businesses at which we would expect daytime
traffic) operating within the Adult-Entertainment Overlay District
prior to 4:30 p.m. The record also gives no indication as to how
the daytime traffic effects of an adult-entertainment business
operating on Showtime's lot would be in any way distinct from, or
less severe than, the effects caused by the business it would
replace: a 2,600-square-foot, 1.9-story tall landscaping business.
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Mendon's reliance on the studies of other municipalities
does nothing to render us less dubious of its proffered interest.
Having conducted an independent review of these studies, we find
that the vast majority make no mention of traffic effects at all.
Even those that do discuss traffic do so in a tellingly dissimilar
manner relative to Mendon's suggested concern. The sum of these
references are provided below:
• A 1979 study conducted by the Planning Department of
Phoenix, Arizona states, as a hypothesis, that adult-
entertainment business might cause "possible traffic
congestion, unusual hours of operation, litter,
noise, and criminal activity." The study then goes
on to investigate the link between criminal activity
and sexually oriented businesses. It never again
references traffic concerns.
• A 1980 study by the Minnesota Crime Prevention Center
concludes that bars without separate parking
facilities, that instead rely on street parking to
serve their patrons, are more often "nuisance bars"
than those with separate parking facilities.
• A 1991 study commissioned by the City of Garden
Grove, California included a survey completed by
real-estate agents and city residents. Both groups
indicated their belief that adult-entertainment
businesses located "within 200 feet of a residential
area" would increase traffic. A majority of
respondents also felt traffic would be increased in
a commercial zone.
• A 1993 report by the St. Croix County, Wisconsin
Planning Department found that "[d]uring night time
operation hours" there could be problems related to
"traffic congestion."
• A 1996 report by the ERG/Environmental Research Group
stated, generally, that in small towns with limited
downtown commercial retail space, "the likelihood of
a cruising circuit for cars in the vicinity of the
sex oriented business increases." The report cited
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concerns that "a sex oriented business will have the
impact of drawing a regional . . . adult, male
population . . . that has interests and activities
that are at odds with those of families and the
elderly."
• A 1997 law review article cited a "concern . . . with
drivers who rush out of the parking lots of the
business while children are nearby." It continued on
to say that "at the core of this concern is the fear
of the kind of people a nude dance club attracts."
These references are largely anecdotal, rely nearly exclusively on
personal perceptions rather than verifiable data, and include
significant hedging language, such as indicating that increased
traffic is merely a hypothesis. In several cases, they also make
apparent that the true, primary concern is not traffic, but the
type of patrons thought to visit adult-entertainment businesses.
Also of note is that the studies wholly fail to suggest that
patronage at an adult-entertainment business would have any
distinct effect when located in already commercialized zones, such
as the Adult-Entertainment Overlay District.
Even observing these studies in the light most favorable
to Mendon, as we must when considering Showtime's cross-motion for
summary judgment, we fail to see how they sufficiently establish
that an adult-entertainment business located along a highway, in a
commercially zoned area, and with off-street parking
accommodations, would have a secondary effect on traffic patterns
different from, or worse than, other commercial business of like
size and capacity that might open in the same location. See Schad
-28-
v. Borough of Mt. Ephraim, 452 U.S. 61, 73 (1981) ("The Borough has
presented no evidence, and it is not immediately apparent as a
matter of experience, that live entertainment poses problems . . .
more significant than those associated with various permitted uses;
nor does it appear that the Borough's zoning authority has arrived
at a defensible conclusion that unusual problems are presented by
live entertainment.").
Similarly, although members of Speak Out Mendon
referenced heavy pre-existing traffic on Route 16, "even a traffic
regulation cannot discriminate on the basis of content unless there
are clear reasons for the distinction[]." Erznoznik, 422 U.S. at
215. This anecdotal reporting does perhaps even less than the
studies entered into evidence to substantiate Mendon's claim that
increased traffic from an adult-entertainment business is more
problematic -- or more likely -- than increased traffic from any
other new commercial enterprise choosing to operating within the
Adult-Entertainment Overlay District. Nonetheless, it is
uncontested that if Showtime chose instead to operate a ballet
studio, movie theater, or grocery store, those businesses would not
be subject to the bylaws. Schad, 452 U.S. at 73-74 ("We do not
find it self-evident that a theater, for example, would create
greater parking problems than would a restaurant.").
We note before closing that Mendon does make a limited
attempt to argue that adult-entertainment businesses attract a
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higher percentage of out-of-town patrons, less concerned with
Mendon's quality of life, than other types of commercial activity,
resulting in traffic effects unique from that of other businesses.10
Even if the residency of a driver had some cognizable effect on
traffic flow, we find it beyond improbable that Mendon could
substantiate any such distinction here, in light of the fact that
Route 16 is a state highway running East-West through much of
Massachusetts.11 By way of hypothetical, we can only presume that
a large, roadside restaurant offering an early-bird dinner special
to patrons as they travel through Mendon along Route 16 headed East
towards Boston would likely create the exact same amount of out-of-
town traffic at 4:00 p.m., half an hour before any adult-
entertainment business is allowed to operate, as Showtime's
10
Because we find this argument to be unavailing for other
reasons, we do not address the possibility -- albeit never raised
by Showtime -- that a municipality claiming a substantial interest
in curbing the frequency at which non-residents visit its city
limits could run afoul of a right to intrastate travel.
Commonwealth v. Weston W., 455 Mass. 24, 32-33, 913 N.E.2d 832, 840
(2009) ("[T]he Massachusetts Declaration of Rights guarantees a
fundamental right to move freely within the Commonwealth."); see
also King v. New Rochelle Mun. Hosp. Auth., 442 F.2d 646, 648 (2d
Cir. 1971) (describing as "meaningless" the right to interstate
travel unless a correlative right to intrastate travel exists).
But see Mem. Hosp. v. Maricopa Cnty., 415 U.S. 250, 255-56 (1974)
(leaving open the question of whether the U.S. Constitution
recognizes a fundamental right to intrastate travel).
11
A number of other businesses, including the nearby drive-in
theater at 35 Milford Street, seem to cater specifically to out-of-
town patrons. See www.mendondrivein.com (providing directions to
the theater from neighboring cities and states).
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preferred building, yet would not find its size or operating hours
curtailed in any way.
We therefore find Mendon's reliance on traffic concerns
to be tellingly underinclusive, see, e.g., Carey, 447 U.S. at 455-
56; Florida Star, 491 U.S. at 540, revealing that Mendon's
allegedly substantial interest is not actually furthered by its
bylaws, a fact fatal to its claim under intermediate scrutiny.
See, e.g., O'Brien, 391 U.S. at 377.
4. The zoning bylaws support no substantial interest
We find the zoning bylaws to be tellingly underinclusive,
highlighting that Mendon has failed to prove that it has a
substantial interest in regulating the secondary effects of adult-
entertainment businesses that is actually furthered by its bylaws.
The narrow application of these bylaws -- passed in the aftermath
of Showtime's initial application for an adult-entertainment
license -- to only the four-plot Adult Entertainment Overlay
District belies Mendon's proffered interest in traffic safety and
rural aesthetics. We believe that the record makes clear that
these interests, although theoretically substantial in their own
right, are not what prompted Mendon's amendments to the bylaws.
See, e.g., Auburn Police Union, 8 F.3d at 897 & n.15 (collecting
cases finding that patent underinclusiveness may prove the lack of
a substantial governmental interest). Accordingly, we find that it
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is Showtime, not Mendon, that ought to have been awarded summary
judgment on these claims.
B. The restriction on sale and consumption of alcohol
Showtime also challenges an amendment to Mendon's general
bylaws that forbids the sale or consumption of alcoholic beverages
at any adult-entertainment business within the Adult-Entertainment
Overlay District. Showtime does not bring this challenge under the
First Amendment, but rather asserts that Article 16 of the
Massachusetts Declaration of Rights provides more expansive
protection for adult entertainment than does its federal
counterpart.12 Citing cases in which the Massachusetts Supreme
Judicial Court ("SJC") has held bans on non-obscene nude dancing in
bars unconstitutional, Showtime asks us to find that Mendon's
"total ban" on such activity is clearly impermissible under Article
16. In the alternative, it requests that we certify this question
of law to the SJC. Mendon argues to the contrary, asserting that
any distinction between the scope of Article 16 and the First
Amendment need not concern us; under either the state or federal
12
The Massachusetts Supreme Judicial Court has made clear that
there is no practical distinction between a regulation prohibiting
the service of alcohol by businesses that provide adult
entertainment and a regulation prohibiting adult entertainment in
establishments that serve alcohol. See Cabaret Enters., Inc. v.
Alcoholic Beverages Control Comm'n, 393 Mass. 13, 17-18, 468 N.E.2d
612, 615 (1984) (rejecting the argument that an ordinance banning
alcohol sales in the presence of nude dancing was only a licensing
restriction, not a regulation of expressive activity).
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constitution the ban on adult-entertainment occurring in
conjunction with alcohol service is clearly constitutional.
As a federal court sitting in diversity over an issue of
state law, we are generally tasked with making an "informed
prophecy" of how the highest state court would rule on this
question. See Ambrose v. New Engl. Ass'n of Sch. & Colls., Inc.,
252 F.3d 488, 497-98 (1st Cir. 2001); see also In re Bos. Reg'l
Med. Ctr., Inc., 410 F.3d 100, 108 (1st Cir. 2005). However, where
our court determines that the path of state law is sufficiently
undeveloped, or the correct answer to the question before us
sufficiently unclear, so as to make such prophetic action unwise,
we may instead choose to certify such questions to the highest
court of the state. In re Hundley, 603 F.3d 95, 98 (1st Cir.
2010); Fischer v. Bar Harbor Banking & Trust Co., 857 F.2d 4, 7
(1st Cir. 1988); see also Lehman Bros. v. Schein, 416 U.S. 386, 391
(1974) (holding that the decision to certify a case a question is
within the "sound discretion" of federal courts). For issues of
Massachusetts law, we may appropriately certify to the SJC
"questions of law . . . which may be determinative of the cause
then pending . . . and as to which it appears . . . there is no
controlling precedent in the decision of [the SJC]." Mass. S.J.C.
R. 1.03; see also In re Engage, Inc., 544 F.3d 50, 52 (1st Cir.
2008). This case meets both requirements for certification.
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We need not spill much ink on the first requirement:
Showtime challenges the restriction on providing adult-
entertainment in conjunction with the service of alcohol solely
under Article 16 of the Massachusetts Declaration of Rights.
Accordingly, there is no question that proper interpretation of
state constitutional law is "determinative" of this action.
The second requirement for certification is that there be
"no controlling precedent" from the SJC. See Mass. S.J.C. R. 1.03.
Our case law has interpreted "no controlling precedent" to mean
that certification is inappropriate where "the course the state
court would take is reasonably clear." In re Engage, 544 F.3d at
53 (alterations and citation omitted). Where a "case presents
close and difficult legal issues," however, we may often be unable
to "say that the course that the SJC would take is reasonably
clear." Easthampton Sav. Bank v. City of Springfield, 736 F.3d 46,
51 (1st Cir. 2013); see also In re Engage, 544 F.3d at 53. As
explained below, this is one such case, and we therefore believe
that certification to the SJC is appropriate.
1. Article 16's protection of adult entertainment
As Showtime recognizes, Article 16 protects a wider swath
of expressive conduct in the form of adult entertainment than does
the First Amendment. See, e.g., Mendoza v. Licensing Bd. of Fall
River, 444 Mass. 188, 201, 827 N.E.2d 180, 191 (2005) ("[T]he
Federal rule does not adequately protect the rights of the citizens
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of Massachusetts under art. 16."). Although nude dancing, as a
form of expressive activity, falls only just within the ambit of
First Amendment protections, Article 16 draws no distinction
between such adult-entertainment and its less prurient expressive
counterparts. Cabaret Enters., Inc. v. Alcoholic Beverages Control
Comm'n, 393 Mass. 13, 17, 468 N.E.2d 612, 614 (1984) (refusing to
"distinguish between barroom-type nude dancing and performances of
greater artistic or socially redeeming significance"); see also
Mendoza, 827 N.E.2d at 196 ("Although the Supreme Court has said
that nude dancing is expressive conduct within the outer perimeters
of the First Amendment . . . this court has rejected such
qualification under art. 16." (internal quotation marks and
citation omitted)).
Similarly, the SJC has made clear that Article 16 offers
robust protection to expressive activity occurring in conjunction
with the sale or purchase of alcohol. While the Twenty-First
Amendment's grant of regulatory power over alcohol sales to the
states has historically been read to limit the First Amendment's
protection of expressive conduct in establishments licensed to
serve alcohol,13 "no provision of [the Massachusetts Declaration of
13
The Supreme Court has since limited the Twenty-First Amendment's
restriction on First Amendment protections. See California v. La
Rue, 409 U.S. 109, 118-19 (1972) (recognizing that the Twenty-First
Amendment granted states the power to regulate nude dancing where
liquor is sold), overruled in part by 44 Liquor Mart, Inc. v. Rhode
Island, 517 U.S. 484, 516 (1996) ("We now disavow [LaRue's]
reasoning insofar as it relied upon the Twenty-First Amendment.").
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Rights] gives a preferred position to regulation of alcoholic
beverages." Commonwealth v. Sees, 374 Mass. 532, 536-37, 373
N.E.2d 1151, 1155 (1978). Therefore, unlike its federal
counterpart, Article 16 "makes no distinction between 'free speech
in a bar and free speech on a stage.'" Mendoza, 827 N.E.2d at 190
n.15 (citing Sees, 373 N.E.2d at 1155); see also Aristocratic Rest.
of Mass, Inc. v. Alcoholic Beverage Control Comm'n (No. 1), 374
Mass. 547, 554, 374 N.E.2d 1181, 1186 (1978) ("Because our State
Constitution has no special provision like the Twenty-first
Amendment concerning the regulation of alcoholic beverages, the
right of free speech guaranteed by art. 16 has no parallel limited
status in premises where alcoholic beverages are served.").
In accordance with these strong protections, the SJC has
consistently held that adult-entertainment occurring in bars is
considered constitutionally protected expressive conduct that may
not be abridged "in the absence of a demonstrated countervailing
State interest." Cabaret Enters., 468 N.E.2d at 614; see id.
(holding unconstitutional a ban on nude dancing in bars given the
absence of "evidence that [the adult-entertainment facilities have]
been the source of crime such as drug distribution or disorderly
conduct or assaults or sexual improprieties"); Sees, 373 N.E.2d at
1156 (concluding that a restriction on nude dancing in bars was
The SJC has not had an opportunity to speak to whether a
distinction between Article 16 and the First Amendment remains
post-LaRue.
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unconstitutional where the dancer "did not mingle with other
employees or with patrons, and there is no contention that the
performance was obscene"). But see Mendoza, 827 N.E.2d at 188-89
(applying intermediate scrutiny to an ordinance banning all public
nudity where the city "at least advanced and attempted to document
a governmental interest" in crime deterrence, although withholding
judgment as to the ordinance's true content neutrality).
2. Article 16's application to the general bylaws
Naturally, the parties draw from this precedent sharply
contrasting inferences about the constitutionality of Mendon's
amended bylaws. Showtime styles the amendment as a "total ban" on
the presentation of adult entertainment in conjunction with the
sale or consumption of alcohol, which it claims is a clear
violation of the protection offered by Article 16. Mendon, in
contrast, argues that the restriction is wholly permissible; unlike
the towns in Sees and Cabaret Enters., it has set forth a
governmental interest and has crafted the amendment to narrowly
target only those businesses most likely to cause the identified
secondary effects.
Neither argument wholly convinces. For its part,
Showtime fails to acknowledge that Cabaret Enters. and Sees were
decided in the absence of any governmental justification for their
proposed restrictions on expressive activity. See Mendoza, 827
N.E.2d at 188 ("The records in both [Cabaret Enters. and Sees]
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'fail[ed] to demonstrate [any] justification for the imposition of
a restraint on the exercise of a right guaranteed by art. 16."
(alterations in original) (quoting Cabaret Enters., 468 N.E.2d at
614)). Here, in contrast, Mendon has at least set forth an
interest in deterring an increase in criminal activity which it
believes will arise if adult entertainment is presented in
conjunction with the service of alcohol.
Under intermediate scrutiny,14 however, Mendon must also
show that its interest in crime deterrence is substantial, and that
its restriction on expressive activity is "'narrowly tailored' to
advance . . . [that] interest 'without at the same time banning or
significantly restricting a substantial quantity of speech that
does not create the . . . evils [the city seeks to eliminate]."
Id. (alterations in original) (quoting City of Bos. v. Back Bay
Cultural Ass'n, 418 Mass. 175, 183, 635 N.E.2d at 1179, 1180
(1994)); see also Commonwealth v. Ora, 451 Mass. 125, 129, 883
N.E.2d 1217, 1221 (2008) (stating that under intermediate scrutiny
a restriction on speech must be "no greater than is essential to
14
Although Showtime argued that the zoning bylaws were
appropriately subject to strict scrutiny, it did not similarly
suggest that strict scrutiny should apply to the alcohol ban. Cf.
Mendoza, 827 N.E.2d at 188 (considering Mendoza's argument that
strict scrutiny should apply despite the proffer of a facially
content-neutral interest in combating crime). Therefore, although
acknowledging that the alcohol ban was passed concurrently with the
zoning bylaw amendments -- the underinclusiveness of which betrays
their asserted content-neutral purpose -- we do not consider the
application of strict-scrutiny to this claim.
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the furtherance of the government interest"). In Mendoza the
answer to the second of these inquiries was simple: the ordinance
banned any public nudity within city limits, making it "tantamount
to censorship." 827 N.E.2d at 189. Given that the ordinance in
Mendoza so clearly failed the test for narrow tailoring, the SJC
did not engage in significant analysis of what evidence is required
of a city to prove the validity and substantiality of its stated
interest. Neither does Mendoza provide significant guidance on how
the SJC would apply the test for narrow tailoring in a case, like
that now before us, presenting a much closer question than the
citywide ban on public nudity considered in Mendoza. Cf. id. ("No
matter what the formulation of the [narrow tailoring] test, . . .
a complete ban is not 'narrowly tailored' . . . .").
In consequence, the SJC's precedents may reasonably be
conceived of as staking out two poles of scrutiny, with most cases
falling somewhere in between. On one end, absent any
justification, protected adult entertainment in the presence of
alcohol service may not be constitutionally abridged. On the other
end, no matter what justification is provided, a total ban on
protected activity will not survive narrow tailoring. Between
these poles, however, there are significant open questions
regarding Article 16's proper application. This case, which falls
somewhere near the middle of the rules set forth in guiding
precedent, thus presents a close issue of constitutional law, the
-39-
proper resolution of which is difficult to predict, and suitable
for certification to the SJC.
3. Certification to the SJC
Although "the legal standards to [be applied in this
case] are relatively apparent," "the application of those standards
is difficult, and the outcome far from certain." See Easthampton
Sav. Bank, 736 F.3d at 51. Moreover, the claim rests solely on
issues of state constitutional law, implicates a fundamental right
of Massachusetts citizens, and may have far-reaching impact on
municipalities throughout Massachusetts in their construction of
local ordinances. See In re Engage, 544 F.3d at 57 (explaining
that the mere difficulty of a legal issue is generally insufficient
to warrant certification, but deeming certification appropriate
where additional factors weigh in favor of having the state court
decide such complex questions of state law (citing Bos. Gas Co. v.
Century Indem. Co., 529 F.3d 8, 15 (2008)). For these reasons, we
believe certification is warranted.15
15
On appeal, Showtime also challenges the amended bylaws as
overbroad. See Stevens, 559 U.S. at 473 (finding that "a law may
be invalidated as overbroad" if "a substantial number of its
applications are unconstitutional . . . ."); Aristocratic Rest.,
374 N.E.2d 1181, at 1187 (describing the overbreadth analysis under
Article 16 as "similar" to the overbreadth analysis under the First
Amendment). Having closely reviewed the record, however, we find
no indication that Showtime sought to challenge the restriction on
these grounds before the district court, and we cannot reasonably
read its arguments therein as setting forth a prima facie argument
for overbreadth. Aristocratic Rest., 374 N.E.2d at 1187 ("[A]
party must demonstrate both that the challenged governmental
regulation is not susceptible of a construction which limits its
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III. Conclusion
We reverse the grant of summary judgment in favor of
Mendon as it relates to the bylaws regarding the size, height, and
operating hours of adult-entertainment businesses. We remand this
claim to the district court for entry of summary judgment in favor
of Showtime.
We certify to the SJC the following questions related to
Mendon's restriction on adult entertainment occurring within
establishments licensed to serve alcohol:
1. Do the pre-enactment studies and other evidence
considered by Mendon demonstrate a "countervailing State
interest," Cabaret Enters., 468 N.E.2d at 614, sufficient
to justify Mendon's ban on alcohol service at adult-
entertainment businesses?
2. If the ban is so justified, is it adequately tailored?
We would further welcome the advice of the SJC on any other
relevant aspect of Massachusetts law that it believes would aid in
resolution of this dispute.
application to unprotected activity and that the deterrent effect
of any government regulation is both real and substantial."
(citations and internal quotation marks omitted)); see also N.Y.
State Club Ass'n v. City of N.Y., 487 U.S. 1, 14 (1988)
("[A]ppellant must demonstrate from the text of [the bylaw] and
from actual fact that a substantial number of instances exist in
which the Law cannot be applied constitutionally."). Therefore,
the claim is properly deemed waived on appeal. See Demelo v. U.S.
Bank Nat'l Ass'n, 727 F.3d 117, 123 (1st Cir. 2013). Consequently,
any issue of overbreadth is not determinative in this case, making
certification of this issue unnecessary. See S.J.C. R. 1.03.
-41-
The Clerk of this Court is directed to forward to the
Massachusetts SJC, under the official seal of this court, a copy of
the certified questions and this opinion, along with a copy of the
briefs and appendices filed by the parties. We retain jurisdiction
over this issue pending the SJC's response.
So ordered.
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