Talk of Town v. Department of Finance & Business Services ex rel. City of Las Vegas

CANBY, Circuit Judge,

dissenting.

I respectfully dissent from the majority opinion because of a narrow but important point on which we differ. The majority relies on Arcara v. Cloud Books, Inc., 478 U.S. 697, 106 S.Ct. 3172, 92 L.Ed.2d 568 (1986), in which the Supreme Court held that the First Amendment was not implicated when a county instituted nuisance proceedings and closed a building used by an adult bookstore because it was serving as a place of prostitution. The majority here holds that Arcara applies because the City of Las Vegas proceeded against Talk of the Town under its general nuisance ordinance (although it also proceeded under a similar clause in the ordinance regulating erotic dancing establishments). The City is therefore merely enforcing a generally applicable law directed at non-speech activity, according to the majority.

The analogy to Arcara fails, in my opinion, because the City here did not merely shut down Talk of the Town’s premises for two weeks because it permitted alcoholic beverages to be consumed there. Instead, it suspended Talk of the Town’s permit to present erotic dances. This remedy is clearly directed at expressive activity. During the suspension, Talk of the Town may still use its building for other purposes, even though it has been the scene of liquor violations. What it may not do is engage in the expressive activity of presenting erotic dances, on the existing *1075premises or anywhere else in Las Vegas. Because the suspension is directed at expression, the First Amendment is necessarily implicated.

In that situation, the precedent that should govern our decision is 4805 Convoy, Inc. v. City of San Diego, 183 F.3d 1108 (9th Cir.1999). In Convoy, the City suspended a nude entertainment license because of the use of unlicensed dancers. We held that such a suspension was subject to the First Amendment requirements of either a speedy judicial review or a stay of enforcement until the completion of judicial review. See id. at 1114-16 (relying on FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990), and Baby Tam & Co. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998)). Because the City of San Diego’s scheme for suspending nude entertainment licenses did not meet these requirements, we enjoined enforcement of any license suspension or revocation until completion of judicial review. See id. at 1116.

The district court in the present case properly concluded that the Las Vegas ordinance authorizing suspension of erotic dancing licenses failed to meet the First Amendment requirement of speedy judicial review or a stay of enforcement until completion of judicial review. It therefore followed Convoy and enjoined any suspension or revocation of erotic dancing licenses prior to completion of judicial review. In so ruling, the district court honored the First Amendment limitations on prior restraint of expression. See Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965). I would affirm the district court’s judgment.1

. Talk of the Town contends that the district court, having found the ordinance unconstitutional, should have enjoined further enforcement totally because the portions of the ordinance relating to prompt judicial review (or its absence) were not severable. I do not discuss the severability argument because the majority did not reach it. It suffices to say that I conclude that the district court was correct.