John Ways v. City of Lincoln

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 01-1521
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John Ways, *
*
Plaintiff-Appellee, *
*
v. *
*
City of Lincoln, Nebraska, a city of *
the primary class; Don Wesely, Mayor * Appeal from the United States
of Lincoln; City Council, City of * District Court for the
Lincoln; Jeffery Fortenberry, City * District of Nebraska.
Council; Jon A. Camp, City Council- *
person; Cindy Johnson, City Council- *
person; Jonathan Cook, City Council- *
person; Annette McRoy, City Council- *
person; Colleen Seng, City Council- *
person, Chair; Jerry Shoecraft, City *
Councilperson; Tom Casady, Chief of *
Police for the City of Lincoln, Nebraska,*
*
Defendants-Appellants. *
___________

Submitted: October 18, 2001
Filed: December 14, 2001
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Before MURPHY, BEAM, and BYE, Circuit Judges.
___________

MURPHY, Circuit Judge.
 John Ways brought this action to challenge the constitutionality of a now
repealed Lincoln ordinance prohibiting sexual contact in entertainment businesses.
The district court1 enjoined enforcement of the ordinance after concluding that it was
unconstitutionally overbroad in violation of the First Amendment. We affirm.

The Lincoln City Council passed Ordinance No. 17613, codified as Lincoln
Municipal Code Section 9.16.240, on February 22, 2000. The ordinance prohibited
any employee or performer from having sexual contact with any other person for
remuneration or in conjunction with a performance or entertainment in any business
establishment. It defined sexual contact as "intentional touching of a person's sexual
organ, buttocks, or breasts, whether covered or not, or kissing, when such contact can
reasonably be construed as being for the purpose of sexual arousal or gratification of
either party or any observer." The ordinance outlined not only what conduct was
prohibited, but also those who may be held responsible for it.2 The preface to the

1
The Honorable Warren K. Urbom, United States District Judge for the District
of Nebraska.
2
The full text of the ordinance follows:

9.16.240 Sexual Contact: Prohibited.

(a.) It shall be unlawful for any employee or performer (including
amateur performers) in any business or commercial establishment to
have any sexual contact with any other employee, performer or
patron for gratuity, pay or other remuneration, direct or indirect, or,
in conjunction with or as part of any performance or entertainment
in any business or commercial establishment.

(b.) It shall be unlawful for any patron to have sexual contact with any
employee or performer in any business or commercial establishment.

(c.) For the purposes of this section, sexual contact shall mean the
intentional touching of a person's sexual organ, buttocks, or breasts,

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ordinance stated that it intended to curb secondary effects of public sexual contact,
such as immorality, "prostitution, assaultive behavior, and other related criminal
behavior."

On March 6, 2000, John Ways filed this action alleging that Ordinance No.
17613 was unconstitutionally vague and overbroad, in violation of the First
Amendment to the United States Constitution. Ways is director of operations for
Mataya's "Babydolls" Gentlemens Club in Lincoln, Nebraska, and a shareholder in
the corporation that does business as Mataya's, an alcohol-free adult entertainment
business featuring women dancers. The district court issued a preliminary injunction
enjoining enforcement of Ordinance No. 17613, but before the case came on for trial
the Lincoln City Council enacted Ordinance No. 17657, which effectively repealed
Ordinance No. 17613.

Ordinance No. 17657 is similar to the ordinance involved in this case except
for the addition of a subsection (f), which exempts theaters, concert halls, and art
centers from the prohibitions of the ordinance:

whether covered or not, or kissing, when such contact can reasonably
be construed as being for the purpose of sexual arousal or
gratification of either party or any observer.

(d.) It shall be unlawful for any person purposely or knowingly to solicit,
induce, or attempt to induce another person to engage in an act or
acts prohibited hereunder.

(e.) It shall be unlawful for the owner, lessee, proprietor, or manager of
any business or commercial establishment to knowingly allow any
person on the premises of such business or commercial establishment
to engage in an act or acts prohibits [sic] hereunder.

Lincoln, Neb., Mun. Code § 9.16.240 (2000).

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 (f.) The provisions of this section shall not apply to a theater,
concert hall, art center, museum, or similar establishment
which is primarily devoted to the arts or theatrical
performances and in which any of the circumstances
contained in this section were permitted or allowed as part
of such art exhibits or performances.

After enactment of Ordinance No. 17657, Ways filed a new action to challenge it. In
that case, which is still pending, the district court denied his motion for preliminary
injunctive relief. The constitutionality of Ordinance No. 17657 with new subsection
(f) is not before us on this appeal which involves only the original ordinance.3

After trial in this case was held on October 2, 2000, the court concluded that
Ordinance No. 17613 was not unconstitutionally vague but that it was
unconstitutionally overbroad because it "contains no exception for theaters, concert
halls, art centers, [or] museums" and because the city had not shown that "public
sexual contact in venues other than the adult entertainment business is an accurate
predictor of secondary adverse effects." The district court noted that nude dancing
is "expressive conduct within the outer perimeters of the First Amendment," Barnes
v. Glen Theatre, Inc., 501 U.S. 560, 566 (1991). In addition to its overbreadth
analysis the district court employed the test from United States v. O'Brien, 391 U.S.
367, 377 (1968), concluding that Ordinance No. 17613 restricted First Amendment
rights more than necessary to further an important government interest. The court
rested its decision on its conclusion that Ordinance No. 17613 was facially overbroad,
rather than on any application of the ordinance to Mataya's.

3
The district court concluded that this case is not moot under the voluntary
cessation doctrine, which applies when there is nothing to prevent a defendant from
returning to "his old ways." City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283,
289 n.10 (1982). No one has raised a question of mootness on appeal, and since the
fee award is part of the appeal, the constitutionality of the repealed ordinance needs
to be addressed even if there were no prospect of reinstatement of the original
ordinance.

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 The court granted Ways a permanent injunction and nominal damages of $1.00,
as well as $5,693.10 in attorney fees and $630.14 in costs. The fee award reflected
a reduction in the requested hourly rate and hours and application of a discount to
reflect the degree of success. The court noted that Ways had not followed a local rule
requiring evidence in support of a fee application, and it therefore picked an hourly
rate based on its own "past experience when there was evidence" (emphasis in
original). The city appeals from the judgment.

The City of Lincoln argues that Ordinance No. 17613 was not overbroad
because it did not significantly compromise First Amendment rights and would not
be unconstitutional applied to Mataya's. It also asserts that the district court abused
its discretion in assigning hourly rates without evidence from Ways and in awarding
fees beyond what was justified. Ways argues that the ordinance is overbroad because
it covers conduct in "any business or commercial establishment," not merely in adult
entertainment facilities, and because it would restrict constitutionally protected
artistic expression, such as theater and ballet performances. Ways also supports the
award of fees and costs.

The First Amendment protects "live entertainment, such as musical and
dramatic works," Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981), and
artistic expression containing nudity or simulated sexual conduct. See Southeastern
Promotions Ltd. v. Conrad, 420 U.S. 546, 550, 557-58 (1975) (Hair is protected
speech despite "group nudity and simulated sex"); Doran v. Salem Inn, Inc., 422 U.S.
922, 933 (1975) (artistic performances involving nudity have "unquestionable artistic
and socially redeeming significance"). Our review of the First Amendment issue is
de novo. Planned Parenthood v. Dempsey, 167 F.3d 458, 461 (8th Cir. 1999)

An ordinance prohibiting a broad range of protected expression may be facially
challenged as overbroad. Members of City Council of Los Angeles v. Taxpayers for
Vincent, 466 U.S. 789, 796 (1984). Under the overbreadth doctrine, "an individual

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whose own speech or conduct may be prohibited is permitted to challenge a statute
on its face 'because it also threatens others not before the court – those who desire to
engage in legally protected expression but who may refrain from doing so.'" Board
of Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987), quoting
Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). The rationale for
allowing an individual to assert the constitutional rights of others not before the court
is that "broadly written statutes may have such a deterrent effect on free expression
that they should be subject to challenge even by a party whose own conduct may be
unprotected." Taxpayers for Vincent, 466 U.S. at 798. The overbreadth doctrine is
"strong medicine" to be used "sparingly" and only when the overbreadth is not only
"real, but substantial as well, judged in relation to the statute's plainly legitimate
sweep." Broadrick v. Oklahoma, 413 U.S. 601, 613, 615 (1973).

A successful overbreadth claim must show that a challenged statute will
"compromise recognized First Amendment protections of parties not before the
[c]ourt" who engage in "conduct more likely to be protected by the First Amendment
than [plaintiff's] own [conduct]." Taxpayers for Vincent, 466 U.S. at 801, 802. Ballet
and theater performances receive greater First Amendment protection than nude
dancing, and Ordinance No. 17613 could have been enforced to prohibit the type of
simulated sex to be found in productions of Hair. The ordinance could also have been
enforced to prohibit stage actors from kissing and ballet dancers or ice skaters from
lifting each other by the buttocks, if such acts could "reasonably be construed" to be
for the "sexual arousal or gratification" of any observer or performer.

If a statute infringes upon a protected liberty, it must be narrowly tailored to
further a sufficiently substantial government interest. Schad, 452 U.S. at 68. The
original Lincoln ordinance sought to deter immorality and to curb "prostitution,
assaultive behavior, and other related criminal behavior." The government has a
sufficiently substantial interest in curbing such secondary effects, see Barnes v. Glen
Theatre, Inc., 501 U.S. 560, 569 (1991) (plurality opinion) (substantial government

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interest in protecting morality); City of Erie v. Pap's A.M., 529 U.S. 277, 290-91
(2000) (plurality opinion) (substantial government interest in curbing secondary
effects of adult entertainment businesses), but Ordinance No. 17613 was not tailored
to combat only them and swept further than necessary. It did not exclusively cover
conduct in adult entertainment businesses, which has been recognized to cause
harmful secondary effects, see Pap's A.M., 529 U.S. at 296-97, but also covered
conduct in "any business or commercial establishment," which could include theater
performances, ballet performances, and many other forms of live entertainment. The
Lincoln City Council referred to no findings that theatrical kissing and ballet lifts
cause harmful secondary effects. The city's secondary effects rationale was therefore
"open to question" in respect to Ordinance No. 17613 because it could have been
enforced to bar expressive conduct in classes of productions not readily analogous to
adult type entertainment. See Farkas v. Miller, 151 F.3d 900, 904 (8th Cir. 1998),
quoting Barnes, 501 U.S. at 585 n.2 (Souter, J., concurring). Under such
circumstances, the city was obligated to "make some demonstration of an evidentiary
basis for the harm it claims to flow from the expressive activity." Pap's A.M., 529
U.S. at 313 (Souter, J., dissenting from judgment). Because the ordinance burdened
First Amendment expression that has not been shown clearly to contribute to the
problems the city sought to solve, it was not appropriately tailored to achieve its
stated purposes.

Ordinance No. 17613 was unlike the Iowa law found not to be overbroad in
Farkas, 151 F.3d at 905. The Farkas statute prohibited the "actual or simulated public
performance of any sex act" and the exposure of erogenous zones of the body in
businesses operating under a sales tax permit, id. at 901, but it contained an exception
in its application for "a theater, concert hall, art center, museum, or similar
establishment which is primarily devoted to the arts or theatrical performances," id.
at 902. The Iowa statute was directed at performance of sex acts rather than the
broader "sexual contact" defined in Ordinance No. 17613, and it also prohibited
certain types of nudity while the Lincoln ordinance applied whether the body parts

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were covered or not. The most significant difference, however, is that Ordinance No.
17613 did not contain any exception for artistic venues like the Iowa statute and like
Lincoln's new Ordinance No. 17657.4

Even if a statute is overbroad, it may be saved by a limiting construction that
removes the threat to constitutionally protected speech. Broadrick, 413 U.S. at 613.
A limiting construction cannot be supplied unless an ordinance is "readily
susceptible" to such an interpretation, see State of Va. v. Am. Booksellers Ass'n, 484
U.S. 383, 397(1988), because federal courts "lack jurisdiction authoritatively to
construe state legislation." Gooding v. Wilson, 405 U.S. 518, 520 (1972), quoting
United States v. Thirty-Seven Photographs, 402 U.S. 363, 369 (1971). Limiting
constructions of state and local legislation are more appropriately done by a state
court or an enforcement agency. Ward v. Rock Against Racism, 491 U.S. 781, 795-
96 (1989). The city claims that Ordinance No. 17613 was not intended to apply to
artistic venues, but such an exception was not contained in it nor is the statute readily
susceptible to such an interpretation. The repeal of the ordinance and enactment of
a new one containing such an exception show the difference and show how easy it
was for the city to makes its intent clear.

The city also emphasized at oral argument that the ordinance would not reach
theater or ballet performances because it required intentional touching that "can
reasonably be construed as being for the purpose of sexual arousal" and because
artistic performances would never have met this element. The city overlooks that the
ordinance prohibited such touching for the "gratification of either party or any
observer," and a far greater range of conduct may be directed toward "gratification"
than toward "sexual arousal." Even if the prohibitions were interpreted to reach only

4
Farkas was decided in 1998, quite some time before the passage of Ordinance
No. 17613 on February 22, 2000, so the Iowa statute could have provided a model
which had survived constitutional challenge.

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conduct intending sexual arousal, the city's net was still cast too broadly because
constitutionally protected artistic expression may legitimately intend to titillate or
arouse members of the audience.

Finally, the city challenges every aspect of the district court's award of fees and
costs, except for the downward adjustment to reflect incomplete success at trial. The
city argues in particular that the district court abused its discretion in choosing an
hourly rate without submission of evidence by the moving party. Ways responds that
the district court acted within the scope of its discretion. Randolph v. Rogers, 170
F.3d 850 (8th Cir. 1999). Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) guides
courts to start with "the number of hours reasonably expended on the litigation
multiplied by a reasonable hourly rate." The district court adopted at least one hourly
rate recommended by the city and chose other hourly rates favorable to it in order "to
capture [the] attention" of plaintiff's counsel. The district court's award of fees and
costs reflects its long experience with hourly rates and its careful scrutiny of the fee
request, and it was well within the scope of its discretion.

For these reasons, we affirm the judgment of the district court.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

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