Heideman v. South Salt Lake City

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
NOV 4 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

FLONA M. HEIDEMAN; MARIEA
M. BERRYMAN; CRYSTAL
DIERINGER; HEATHER R.
LILJENQUIST; JENNIFER GOFF;
AMBER BLANKE; STACY LAMB;
BOBBIE GLEASON; AMY WOODS;
JANEEN BICKERSTAFF,
No. 02-4030
Plaintiffs - Appellants,

v.

SOUTH SALT LAKE CITY, A Utah
Municipal Corporation,

Defendant - Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. NO. 2:01-CV-918-J)

W. Andrew McCullough, McCullough & Associates, LLC, Midvale, Utah, for
Plaintiffs-Appellants.

Scott D. Bergthold, Law Office of Scott D. Bergthold, P.L.L.C., Scottsdale,
Arizona (and David M. Carlson and Janice Frost, South Salt Lake, Utah, with him
on the briefs), for Defendant-Appellee.
Before LUCERO , HARTZ and McCONNELL , Circuit Judges.

McCONNELL , Circuit Judge.

South Salt Lake City is a municipality of some 9,800 people, located

immediately south of Utah’s capital. The City’s main artery, State Street or U.S.

Highway 89, was the primary north-south highway in the area prior to

construction of Interstate-15. State Street is the locus of a virtually uninterrupted

string of gas stations, retail outlets, fast food restaurants, pawn shops, used car

dealerships, old-fashioned drive-up motels, and the like; much of the City is

occupied by light industry and the remaining area by modest single-family

residences and apartments. The City’s Chamber of Commerce touts the

municipality as “Utah’s Center of Industry.” 1 Almost hidden among the

warehouses and workshops of light industrial South Salt Lake City are – or were –

three establishments featuring nude dancing.

The City Council recently enacted an ordinance prohibiting nudity within

sexually oriented businesses. South Salt Lake City, Utah, Ordinance No. 2001-

04 (the “Ordinance”) (effective May 7, 2001) (codified as South Salt Lake City,

Utah, Code, ch. 5.56 (the “Code”)). Under the Ordinance, dancers at the

1
South Salt Lake Chamber of Commerce, at
http://www.southsaltlakechamber.com.

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establishments mentioned above may no longer drop the last stitch. Id. §

5.56.3100. The Plaintiffs-Appellants in this case, female dancers who object to

the requirement of wearing “G-strings” and “pasties” during their performances,

brought suit to enjoin the enforcement of the Ordinance, and filed a motion for a

preliminary injunction in district court.

The district court denied their request for a preliminary injunction,

commenting:

The specific proposition stated by Plaintiffs, that nude dancing is a
protected form of expression not subject to any limitation, has not
been passed upon by the 10th Circuit Court of Appeals. It is this
Court’s opinion that if and when they consider this proposition, the
modest limitations imposed by the ordinance will not be considered a
burden on expression of erotic dancing in a sexually oriented
business.

Order Upon Pls.’ Mot. for Prelim. Inj. and Def.’s Mot. to Dismiss (“Order”), at 2

(Jan. 29, 2002), App. at 191. In response to a question from Plaintiffs’ counsel

regarding what issues would be open in the litigation on the merits, the district

court declined to provide guidance beyond what was said in the ruling on the

preliminary injunction.

The district court’s reluctance to elaborate the law applicable to nude

dancing is understandable. Twice in the past fifteen years, the United States

Supreme Court has considered the constitutionality of ordinances banning

commercial nude dancing under the Free Speech Clause, and both times the Court

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produced fractured decisions with no majority opinion and no clear statement of

controlling doctrine. See Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991); City

of Erie v. Pap’s A.M., 529 U.S. 277 (2000). This is because, as discussed below,

it is far from clear how prohibitions of nude dancing “fit” within the conceptual

structure of First Amendment law. 2 Despite the theoretical uncertainties,

however, the results themselves in these cases have been consistent: the

practitioners of nude dancing have lost and the ordinances have been upheld.

In their briefs and arguments in this Court, the Plaintiffs devote much of

their attention to issues beyond the propriety of the denial of a preliminary

injunction. In particular, they argue that they are entitled to trial on certain of

their claims, which the Defendants stoutly deny. The procedural posture of this

case, however, is not a direct challenge to the Ordinance or even a motion for

summary judgment. It is an appeal from the district court’s denial of a

preliminary injunction against enforcement of the Ordinance. Our appellate

review is limited by this posture. See, e.g., Hawkins v. City & County of Denver,

170 F.3d 1281, 1292 (10th Cir. 1999) (emphasizing narrow scope of appellate

review of denial of a motion for preliminary injunction); Southwest Voter Reg.

Educ. Project v. Shelley, 344 F.3d 914, 917-18 (9th Cir. 2003) (en banc) (noting

2
The best account of the theoretical difficulties may be found in Vincent
Blasi, Six Conservatives in Search of the First Amendment: The Revealing Case of
Nude Dancing, 33 Wm. & Mary L. Rev. 611 (1992).

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that appellate review of the denial of a preliminary injunction is “limited and

deferential”). The proper means for testing whether a trial is required is for one

or both parties to move for summary judgment or judgment on the pleadings. No

such motion has been made. The issue before us is simply whether the district

court abused its discretion in denying a motion for preliminary relief on this

record. The answer to that question is no.

Background

Under South Salt Lake City’s prior Sexually Oriented Business Ordinance,

originally enacted in February, 1991, commercial nude dancing was permitted,

subject to regulation and licensing. The three establishments at which Plaintiffs

work, or wish to work, provided nude entertainment for more than ten years under

this licensing scheme. Around 1999, the City Council became concerned about

what are called “negative secondary effects” – such as crime, prostitution, and

lowered property values – thought to be associated with sexually oriented

businesses. For approximately a year, City officials gathered police reports and

studies from around the country regarding the connection between sexually

oriented commercial business and these secondary effects.

The Ordinance was amended on January 10, 1996, and, after the studies,

again on May 2, 2001. As currently formulated, the Ordinance forbids employees

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of such businesses 3 to “[a]ppear in a state of nudity before a patron on the

premises of a sexually oriented business.” Code § 5.56.310, 310(G). 4 The

Ordinance also forbids patrons of these establishments to “[a]ppear in a state of

nudity before another person on the premises of a sexually oriented business.”

Code § 5.56.320, 320(C). The Ordinance continues to permit semi-nude

commercial dancing; dancers may perform wearing “pasties” and “G-strings.”

Plaintiffs maintain that these new restrictions violate their freedom of expression

under the First Amendment, as applied to state and local governments through the

Fourteenth Amendment.

Plaintiffs originally filed this action in the Third Judicial District Court for

Salt Lake County, Utah. It was removed to federal district court on May 7, 2001.

In their Complaint, filed April 30, 2001, and by motion, Plaintiffs requested a

temporary restraining order and preliminary injunction against the enforcement of

the Ordinance. The City filed a motion to dismiss on the pleadings.

3
The Code defines a “Sexually oriented business” as “an adult arcade,
adult bookstore, adult motion picture theater, adult novelty store, adult theater,
adult video store, adult cabaret, and adult motel[,]” each of which is defined in
the Code’s “Definitions” section. Code § 5.56.050.
4
The Code defines “[n]udity or state of nudity” as “the showing of the
human male or female genitals, pubic area, vulva, anus, or anal cleft with less
than a fully opaque covering, or the showing of the female breast with less than a
fully opaque covering of any part of the nipple.” Code § 5.56.050.

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 The City argued that the Ordinance is justified by the City’s interest in

curtailing what it found to be the negative secondary effects of establishments

featuring totally nude dancing. The targeted secondary effects the City identified

included: venereal disease, prostitution, general poor sanitation, criminality, and

offenses against minors, among others. See Preamble to Ordinance; Ordinance,

“Purpose and Findings,” (1) – (25). The City based its findings and conclusions

on a number of sources cited in the Ordinance, including findings incorporated in

decisions of the Supreme Court and this Court, as well as numerous other studies

and statistics from the City police department and other municipalities. 5

5
The cases and studies on which the City relied include the following:
Pap’s A.M. v. City of Erie, 529 U.S. 277 (2000); City of Renton v.
Playtime Theatres, Inc., 475 U.S. 41 (1986); Young v. American Mini
Theatre, [Inc.], 427 U.S. 50 (1976); Barnes v. Glen Theatre, Inc.,
501 U.S. 560 (1991); California v. La Rue, 409 U.S. 109 (1972);
O’Connor v City and County of Denver, 894 F.2d 1210 (10th Cir.
1990); Z.J. Gifts D-2, L.L.C. v. City of Aurora, 136 F.3d 683 (10th
Cir. 1998); Dodger’s Bar & Grill, Inc. v. Johnson County, 98 F.3d
1262 (10th Cir. 1996); Dodger’s Bar & Grill, Inc. v. Johnson County
Bd. of County Com’rs, 32 F.3d 1436 (10th Cir. 1994); American
Target Advertising, Inc. v Giani, 199 F3d 1241 (10th Cir. 2000); MS
News Co. v. Casado, 721 F.2d 1281 (10th Cir.1983); Cortese v.
Black, No. 95-1429, 1996 U.S. App. LEXIS 15311 (10th Cir. June
25, 1996); Salt Lake City v. Wood, 1999 Utah App. 323, 991 P.2d
595 (Utah Ct. App. 1999); Salt Lake City v. Roberts, 7 P.3d 789
(Utah [Ct.] App. 2000); United States v. Freedberg, 724 F.Supp. 851
(D. Utah 1989); reports of the South Salt Lake Police Department;
and documents concerning the secondary effects occurring in and
around sexually oriented businesses, including, but not limited to,
Phoenix, Arizona – 1984; Minneapolis, Minnesota – 1980; Houston,
(continued...)

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 The district court held a hearing on January 3, 2002, on the Plaintiffs’

motion for preliminary injunctive relief and the City’s motion to dismiss. The

only evidence before the district court at the time of the hearing was the

Ordinance itself, the preamble of which contained citations to the studies and

reports on which the City relied, and affidavits and testimony of four of the

Plaintiffs regarding their perceptions of future economic harm that they would

suffer absent an injunction. Although the nude dancing establishments,

represented by Plaintiffs’ counsel, had presented certain contrary studies and

evidence to the City Council during its deliberations, Plaintiffs did not submit this

5
(...continued)
Texas – 1997; Indianapolis, Indiana – 1984; Amarillo, Texas; Garden
Grove, California – 1991; Los Angeles, California – 1977; Whittier,
California – 1978; Austin, Texas – 1986; Seattle, Washington –
1989; Oklahoma City, Oklahoma – 1986; Cleveland, Ohio – ; and
Dallas, Texas – 1997; St. Croix County, Wisconsin – 1993; Bellevue,
Washington – 1998; Newport News, Virginia – 1996; New York
Times Square study – 1994; Phoenix, Arizona – 1995-98; and also on
findings from the paper entitled “Stripclubs According to Strippers:
Exposing Workplace Sexual Violence,” by Kelly Holsopple, Program
Director, Freedom and Justice Center for Prostitution Resources,
Minneapolis, Minnesota, and from “Sexually Oriented Businesses:
An Insider’s View,” by David Sherman, presented to the Michigan
House Committee on Ethics and Constitutional Law, Jan. 12, 2000;
crime statistics of the City of South Salt Lake for the past seven
years; and the Report of the Attorney General’s Working Group On
The Regulation Of Sexually Oriented Businesses, (June 6, 1989,
State of Minnesota).
Ordinance, sec. I(B) (“Findings”).

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or any other evidence contrary to the City’s findings to the district court for

consideration on their motion for a preliminary injunction.

In denying both motions from the bench, the district court observed:

I’ll deny the motion for a preliminary injunction. . . .
It would appear to me that the modest effort at limitations
provided by the ordinance as enacted by South Salt Lake City
requiring the use of G strings and pasties in no way in my opinion
limits expression. It would appear to me that expression allowed is at
the outer limits that counsel has referred to and that the modest
requirements set forth in the ordinance as to semi-nude vers[u]s nude
is an appropriate exercise of municipal power.
I think that the issue presented, I hate to say the naked
proposition but the specific proposition asserted by counsel for
plaintiffs does indeed present an interesting question. That specific
proposition as far as I know has never been passed on by the Tenth
Circuit but my opinion is that if and when they consider it that the
modest limitations imposed by the ordinance will not be considered a
burden on expression of erotic dancing in a sexually oriented
business establishment.
It would appear to me that the justification set forth in the
ordinance as to the secondary questions are legitimate questions for a
city to be concerned with and that the modest limitations imposed in
no way deprive the artist, the performer, the dancer from expression
which is violative of the First Amendment. . . .

Tr. of Hearing dated Jan. 3, 2002 (“Tr.”), at 102-04, App. at 184-86.

After the hearing, the district court entered a short order memorializing its

observations from the bench. Four of these observations are relevant to our

review here:

4. The South Salt Lake City ordinance requiring the use of G
strings and pasties in sexually oriented businesses does not
limit expression.

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 5. The modest requirement of the ordinance permitting semi-
nudity and prohibiting nudity in sexually oriented businesses is
an appropriate exercise of municipal power.
6. The specific proposition stated by Plaintiffs, that nude dancing
is a protected form of expression not subject to any limitation,
has not been passed upon by the 10 th Circuit Court of Appeals.
It is this Court’s opinion that if and when they consider this
proposition, the modest limitations imposed by the ordinance
will not be considered a burden on expression of erotic
dancing in a sexually oriented business.
7. The secondary harmful effects of nudity in a sexually oriented
business are concerns that a municipality may legitimately
address.

Order at 2, App. at 191. After making these findings, the order

memorialized the denial of the motion for preliminary injunction which the

district court had made from the bench.

Analysis

I. Standards of Review

We review the district court’s decision to deny a preliminary injunction for

abuse of discretion. Utah Licensed Beverage Ass’n v. Leavitt, 256 F.3d 1061,

1065 (10th Cir. 2001). In doing so, we examine the district court’s factual

findings for clear error and review its legal determinations de novo. Davis v.

Mineta, 302 F.3d 1104, 1111 (10th Cir. 2002); see also Prairie Band of

Potawatomi Indians v. Pierce, 253 F.3d 1234, 1243 (10th Cir. 2001); Tri-State

Generation & Transmission Ass’n v. Shoshone River Power, Inc., 805 F.2d 351,

354 (10th Cir. 1986). The abuse of discretion standard commands that

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 we give due deference to the district court’s evaluation of the
salience and credibility of testimony, affidavits, and other evidence.
We will not challenge that evaluation unless it finds no support in the
record, deviates from the appropriate legal standard, or follows from
a plainly implausible, irrational, or erroneous reading of the record.

United States v. Robinson, 39 F.3d 1115, 1116 (10th Cir. 1994) (citation

omitted).

It is well settled that a preliminary injunction is an extraordinary remedy,

and that it should not be issued unless the movant’s right to relief is “clear and

unequivocal.” Kikumura v. Hurley, 242 F.3d 950, 955 (10th Cir. 2001); see also

SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991).

But while the standard to be applied by the district court in deciding
whether a [party] is entitled to a preliminary injunction is stringent,
the standard of appellate review is simply whether the issuance [or
denial] of the injunction, in light of the applicable standard,
constituted an abuse of discretion.

Doran v. Salem Inn, Inc., 422 U.S. 922, 931-32 (1975).

We must be mindful, therefore, as the Supreme Court has cautioned, that

“a preliminary injunction is customarily granted on the basis of procedures that

are less formal and evidence that is less complete than in a trial on the merits.”

University of Texas v. Camenisch, 451 U.S. 390, 395 (1981). A hearing for

preliminary injunction is generally a restricted proceeding, often conducted under

pressured time constraints, on limited evidence and expedited briefing schedules.

The Federal Rules of Evidence do not apply to preliminary injunction hearings.

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See, e.g., SEC v. Cherif, 933 F.2d 403, 412 n.8 (7th Cir. 1991); Asseo v. Pan Am.

Grain Co., 805 F.2d 23, 25-26 (1st Cir. 1986); United States v. O’Brien, 836 F.

Supp. 438, 441 (S.D. Ohio 1993). Thus, as a prudential matter, it bears

remembering the obvious: that when a district court holds a hearing on a motion

for preliminary injunction it is not conducting a trial on the merits.

II. Preliminary Injunction Factors

Before a preliminary injunction may be entered pursuant to Fed. R. Civ. P.

65, the moving party must establish that:

(1) [the movant] will suffer irreparable injury unless the injunction
issues; (2) the threatened injury . . . outweighs whatever damage the
proposed injunction may cause the opposing party; (3) the injunction,
if issued, would not be adverse to the public interest; and (4) there is
a substantial likelihood [of success] on the merits.

Resolution Trust Corp. v. Cruce, 972 F.2d 1195, 1198 (10th Cir. 1992);

Kikumura, 242 F.3d at 955. It is the movant’s burden to establish that each of

these factors tips in his or her favor. Id. However, “[t]he Tenth Circuit has

adopted the Second Circuit’s liberal definition of the ‘probability of success’

requirement.” Otero Sav. & Loan Ass’n v. Federal Reserve Bank, 665 F.2d 275,

278 (10th Cir. 1981). Accordingly, we have held that where the moving party

has established that the three “harm” factors tip decidedly in its favor, the

“probability of success requirement” is somewhat relaxed. Prairie Band , 253

F.3d at 1246; Continental Oil Co. v. Frontier Ref. Co. , 338 F.2d 780, 781-82

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(10th Cir. 1964) (same); see also, e.g. , Boucher v. School Bd. , 134 F.3d 821, 825

n.5 (7th Cir. 1998). In such cases, “[t]he movant need only show ‘questions

going to the merits so serious, substantial, difficult and doubtful, as to make

them a fair ground for litigation.’” Resolution Trust , 972 F.2d at 1199 (citing

Tri-State , 805 F.2d at 358); Otero, 665 F.2d at 278. However, the Second

Circuit has held, and we agree, that “[w]here . . . a preliminary injunction ‘seeks

to stay governmental action taken in the public interest pursuant to a statutory or

regulatory scheme,’ the less rigorous fair-ground-for-litigation standard should

not be applied.” Sweeney v. Bane, 996 F.2d 1384, 1388 (2d Cir. 1993) (quoting

Plaza Health Labs. v. Perales, 878 F.2d 577, 580 (2d Cir. 1989)). With this in

mind, we consider whether the district court abused its discretion in the present

case.

III. Application of Preliminary Injunction Factors: The Equities

A. Irreparable Harm

To constitute irreparable harm, an injury must be certain, great, actual

“and not theoretical.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir.

1985); accord Prairie Band, 253 F.3d at 1250. Irreparable harm is not harm that

is “merely serious or substantial.” Prairie Band, 253 F.3d at 1250 (quoting A.O.

Smith Corp. v. FTC, 530 F.2d 515, 525 (3d Cir. 1976)). “[T]he party seeking

injunctive relief must show that the injury complained of is of such imminence

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that there is a clear and present need for equitable relief to prevent irreparable

harm.” Id. (emphasis in original) (brackets, citations, and internal quotation

marks omitted). It is also well settled that simple economic loss usually does

not, in and of itself, constitute irreparable harm; such losses are compensable by

monetary damages. 11A Charles Alan Wright, Arthur R. Miller & Mary Kay

Kane, Federal Practice & Procedure § 2948.1, at 152-53 (2d ed. 1995).

The Plaintiffs presented no evidence that enforcement of the Ordinance

during the time it will take to litigate this case in district court will have an

irreparable effect in the sense of making it difficult or impossible to resume their

activities or restore the status quo ante in the event they prevail. See, e.g.,

Greater Yellowstone Coalition v. Flowers, 321 F.3d 1250 (10th Cir. 2003)

(irreparable harm found when there was danger of actual death of eagles and

destruction of their breeding grounds if developer were allowed to proceed);

Ohio Oil Co. v. Conway, 279 U.S. 813, 814 (1929) (irreparable harm found in

payment of an allegedly unconstitutional tax when state law did not provide a

remedy for its return should the statute ultimately be adjudged invalid). At oral

argument, Plaintiffs’ counsel asserted that at least one of the establishments had

been forced out of business, but no such evidence was presented in district court.

In the absence of evidence to the contrary, we assume that Plaintiffs will be able

to resume their nude dancing in the event they prevail on the merits. The only

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question, then, is whether the requirement that they wear pasties and G-strings in

the meantime is sufficient injury to warrant preliminary injunctive relief.

The Supreme Court has made clear that “the loss of First Amendment

freedoms, for even minimal periods of time, unquestionably constitutes

irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.); see

also Utah Licensed Beverage, 256 F.3d at 1076 (noting presumption when

infringement of First Amendment rights is alleged); Homans v. City of

Albuquerque, 264 F.3d 1240, 1243 & n.2 (10th Cir. 2001); ACLU v. Johnson,

194 F.3d 1149, 1163 (10th Cir. 1999); Community Communications Co. v. City of

Boulder, 660 F.2d 1370, 1380 (10th Cir. 1981). It is necessary, however, to

consider the specific character of the First Amendment claim. The Supreme

Court has observed that the requirement that dancers wear G-strings and pasties

“is a minimal restriction in furtherance of the asserted government interests, and

the restriction leaves ample capacity to convey the dancer’s erotic message.”

Pap’s, 529 U.S. at 301 (plurality op.); id. at 294 (“Any effect on the overall

expression [on account of requiring dancers to wear pasties and G-strings] is de

minimis.”). In reliance on Pap’s, the district court found that the “modest

limitations” of requiring G-strings and pasties, would “not be considered a

burden on expression of erotic dancing.” Tr. at 103, lns. 14-16, App. at 185.

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Thus, while the harm to the Plaintiffs may arguably be imminent and irreparable,

it is not “great” or “substantial.”

For First Amendment purposes, the important point is that the Plaintiffs

are able to convey their chosen message – not that they are able to do so in a

state of undress. Appearing nude is not a First Amendment interest in the

abstract, but only insofar as nudity is a means by which some message is

conveyed. See Pap’s, 529 U.S. at 289 (plurality op.) (“Being ‘in a state of

nudity’ is not an inherently expressive condition.”). The Supreme Court has held

– and it stands to reason – that there are “ample” alternative means by which the

Plaintiffs’ erotic message might be conveyed.

But to say that a harm is “minimal” is not to say it is nonexistent. In the

realm of performance art – to which the activity here is at least a distant cousin –

the manner of presentation is part of the artistic enterprise. To tell Mahler he

could not convey the message of thunder using the kettle drum might leave open

ample alternative means for communicating the desired message, but no one

would say that the restriction was of no artistic consequence. Because our

precedents dictate that we treat alleged First Amendment harms gingerly, we find

that this element tips slightly in favor of the Plaintiffs. See, e.g., Kikumura, 242

F.3d at 963; Utah Licensed Beverage, 256 F.3d at 1076.

B. Balance of Harms

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 To be entitled to a preliminary injunction, the movant has the burden of

showing that “the threatened injury to the movant outweighs the injury to the

other party under the preliminary injunction.” Kikumura, 242 F.3d at 955. The

record is nearly devoid of any finding by the district court regarding the injury to

the City of not enforcing the Ordinance during the pendency of the litigation.

Presumably, however, the court’s conclusion that the harmful secondary effects

of nudity in a sexually oriented business are concerns that a municipality may

legitimately address has application to the short run as well as the long.

Assuming for sake of argument that the Ordinance serves legitimate purposes

and ultimately will be sustained, the interests of the City would be injured by

postponing the day of its enforcement. In the context of constitutional

challenges to Acts of Congress, Chief Justice Rehnquist has stated: “The

presumption of constitutionality which attaches to every Act of Congress is not

merely a factor to be considered in evaluating success on the merits, but an

equity to be considered in favor of applicants in balancing hardships.” Walters v.

Nat’l Ass’n of Radiation Survivors, 468 U.S. 1323, 1324 (1984) (Rehnquist, J., in

chambers); Bowen v. Kendrick, 483 U.S. 1304, 1304 (1987) (Rehnquist, C.J., in

chambers). Although the presumption of constitutionality accorded a municipal

ordinance is less than that accorded an Act of Congress, especially in a case

involving an explicitly enumerated constitutional right, the ability of a city to

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enact and enforce measures it deems to be in the public interest is still an equity

to be considered in balancing hardships. See Plaza Health Labs., 878 F.2d at

580-83.

As with Plaintiffs’ claim of hardship, however, the City’s interest is less

than substantial. Much of the City’s professed concern about negative secondary

effects arises from sexually oriented businesses in general rather than

commercial nude entertainment in particular. The City offers no specific

evidence that the requirement of pasties and G-strings will produce a significant

incremental improvement with respect to the negative secondary effects.

Moreover, the City has tolerated nude dancing establishments for many years,

and even after embarking on a different policy took over a year to put the

restrictions into effect. This invites skepticism regarding the imperative for

immediate implementation.

Thus, the balance of hardships in this case is fairly even: neither party has

shown that it will suffer grievous harm if it loses on the preliminary injunction

motion.

C. Public Interest

A movant also has the burden of demonstrating that the injunction, if

issued, is not adverse to the public interest. Kikumura, 242 F.3d at 955. The

Plaintiffs cite the public’s interest in ensuring that freedom of expression is not

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unconstitutionally curtailed. They also argue that there is a historic value to the

businesses where the Plaintiffs work, in which, they contend, the public also has

an interest. On the other hand, the democratically elected representatives to the

City Council are in a better position than this Court to determine the public

interest with respect to questions of social and economic policy. The courts’

peculiar function is to say what the law is, not to second-guess democratic

determinations of the public interest. In this case, where the Plaintiffs’ claim of

the public interest is largely a restatement of their own constitutional interest,

and the City’s claim of public interest is largely a restatement of its own interest

in regulating the conduct in question, the “public interest” prong of the

preliminary injunction inquiry is nothing more than a restatement of the “balance

of hardships” prong. This factor, therefore, also favors neither party.

IV. Application of Preliminary Injunction Standards: Likelihood of Success on
the Merits

The final question before the district court was whether Plaintiffs

demonstrated that they were likely to meet their burden of showing that the

City’s ordinances are facially unconstitutional infringements on their First

Amendment rights to expression.

A. Constitutional Standards: The Appropriate Level of Scrutiny

The First Amendment to the United States Constitution provides that:

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 Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press, or of the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. I. Since Gitlow v. New York, 268 U.S. 652, 666 (1925), the

Supreme Court has held that the liberty of expression which the First

Amendment guarantees against abridgment by the federal government is within

the liberty safeguarded by the Due Process Clause of the Fourteenth Amendment

from invasion by state action.

The Supreme Court has held that nude dancing “falls only within the outer

ambit of the First Amendment’s protection.” City of Erie v. Pap’s A.M., 529

U.S. 277, 289 (2000) (plurality op.); see also Barnes v. Glen Theatre, Inc., 501

U.S. 560, 566 (1991) (plurality op.) (nude dancing “is expressive conduct within

the outer perimeters of the First Amendment, though we view it as only

marginally so”). The Court has been less clear about the reasons why this is the

case. It has not treated nude dancing as among the “well-defined and narrowly

limited classes of speech, the prevention and punishment of which have never

been thought to raise any Constitutional problem,” such as bribery, obscenity,

and fighting words, which play “no essential part of any exposition of ideas, and

are of such slight social value as a step to truth that any benefit that may be

derived from them is clearly outweighed by the social interest in order and

morality.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).

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 Rather, the Supreme Court’s analysis of restrictions on nude dancing

combines two lines of First Amendment doctrine that, while in principle distinct,

have become effectively merged. The first line of doctrine rests on the

distinction between “speech” and “conduct.” While the Court has recognized

that conduct is often expressive in character – burning a flag or sitting in at a

segregated lunch counter are well-known examples of expressive conduct – the

state has broad latitude to regulate expressive conduct if its interest in doing so

is “unrelated to the suppression of free expression,” if the regulation furthers “an

important or substantial government interest,” and if the “incidental restriction

on alleged First Amendment freedoms is no greater than is essential to the

furtherance of that interest.” United States v. O’Brien, 391 U.S. 367, 377

(1968). This line of cases applies here because, as the Court has explained,

“[b]eing ‘in a state of nudity’ is not an inherently expressive condition,” yet nude

dancing is expressive conduct. Pap’s, 529 U.S. at 289. The Court has held that

a general prohibition on nudity is “unrelated to the suppression of free

expression” because such a law prohibits a class of conduct, the act of appearing

nude in public, without reference to any element of expression. Barnes, 501 U.S.

at 566, 570-71.

The second line of doctrine rests on the distinction between the prohibition

of certain messages based on their content and the enforcement of reasonable

-21-
time, place, or manner restrictions – such as requiring that street demonstrations

occur at times other than rush hour, that billboards be located away from scenic

highways, or that sound trucks not exceed a certain decibel level. See Clark v.

Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Metromedia,

Inc. v. City of San Diego, 453 U.S. 490 (1981); Kovacs v. Cooper, 336 U.S. 77

(1949). Such regulations warrant relatively relaxed, or “intermediate,” scrutiny

not only if they are “content neutral” in the classic sense, but also if the

government’s regulatory purpose is not based on the communicative impact of

the speech. See City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 445-

47 (1992) (Kennedy, J., concurring).

In City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986), the Court

noted that a zoning ordinance which attempted to locate theaters featuring

“adult” films was “content based” to the extent that it identified the regulated

activity by the content of the films shown. Id. at 47. Focusing on the purpose of

the regulation, however, the Court determined that it merely aimed to impose

time, place, or manner restrictions on account of the theaters’ “secondary

effects,” meaning effects other than communicative impact on the audience. Id.

“The ordinance by its terms is designed to prevent crime, protect the city’s retail

trade, maintain property values, and generally protect and preserve the quality of

the city’s neighborhoods, commercial districts, and the quality of urban life, not

-22-
to suppress the expression of unpopular views.” Id. at 48 (internal quotation

marks and brackets omitted). The Court thus carved out a category of speech

regulations that are “content-neutral” not because they apply to conduct on a

generally applicable basis without regard to expressive content, but because the

regulatory purpose is unrelated to that content. In Ward v. Rock Against Racism,

the Court stated that “[t]he principal inquiry in determining content neutrality . . .

is whether the government has adopted a regulation of speech because of

disagreement with the message it conveys.” 491 U.S. 781, 791 (1989). This

Court has held that restrictions based on the negative secondary effects of

sexually oriented businesses are “content-neutral” in this sense. Z-J Gifts D-2,

L.L.C. v. City of Aurora, 136 F.3d 683, 686 (10th Cir. 1998).

The principal conceptual distinction between the two lines of doctrine is

that the former – the “O’Brien test” – applies to generally applicable regulations

of both non-expressive and expressive conduct, not targeting or singling out

expressive conduct, while time, place, or manner regulations can be directed

specifically at expression (such as billboards or street demonstrations), so long as

the governmental purpose is unrelated to disagreement with the message and

there are adequate alternative channels of communication.

In Pap’s, a majority of the Court held that general prohibitions on public

nudity, including commercial nude dancing, are subject to scrutiny “under the

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framework set forth in O’Brien for content-neutral restrictions on symbolic

speech.” 529 U.S. at 289 (plurality op. per O’Connor, J., joined by Rehnquist,

C.J., and Kennedy and Breyer, JJ.); id. at 310 (Souter, J., concurring). The Court

also, however, relied heavily on the Renton line of cases. Id. at 295-96 (plurality

op.); id. at 312-13 (Souter, J., concurring). The resulting doctrine thus seems to

be a combination of the two lines of cases.

This case does not involve a general prohibition on public nudity, like that

in Barnes and Pap’s. Rather, it is a more narrowly tailored ban on nudity of

either employees or patrons within sexually oriented businesses. Accordingly, it

might be argued that the case is most accurately analyzed as a “manner”

regulation. This would seem to have been the Court’s point in Pap’s when it

noted: “The public nudity ban certainly has the effect of limiting one means of

expressing the erotic message being disseminated at Kandyland. But simply to

define what is being banned as the ‘message’ is to assume the conclusion.” 529

U.S. at 292-93. See also Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301,

1308 (11th Cir. 2003) (applying Pap’s and treating the G-string and pasties

requirement as a “manner” restriction). Nudity, after all, is not a message in

itself, but is a mode of conveying any number of different messages. It can be

humorous (as when “Hotlips” Houlihan is exposed in the movie M*A*S*H); it

can be dehumanizing (as in the registration scene in Schindler’s List); it can be

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an act of self-affirmation (as in The Full Monty); it can symbolize

unrighteousness (as in the Book of Hosea); it can symbolize innocence (as in

Botticelli’s Birth of Venus), or the loss of innocence (as in the movie The Last

Picture Show); it can convey cruelty or disgust or freedom or – as Plaintiffs

claim as their message – eroticism. 6 Often nudity is not communicative at all.

By banning nudity in sexually oriented businesses, South Salt Lake City has not

precluded the expression of any particular set of ideas, but has prohibited one

particular manner of conveying those ideas, which the City Council is convinced

has negative secondary effects.

6
We are not troubled by the fact that this reasoning runs counter to Marshall
McLuhan’s iconic dictum that “the medium is the message.” Marshall McLuhan,
Understanding the Media: The Extensions of Man 23-35 (1964). Whatever might
have been its merits in its own pop cultural context, McLuhan’s dictum is
incompatible with the basic thrust of modern First Amendment law, in which
distinctions based on content (‘the message”) are subject to a different mode of
analysis than distinctions based on time, place, or manner (“the medium”). See
Geoffrey R. Stone, Content-Neutral Restrictions, 54 U. Chi. L. Rev. 46 (1987);
Content Regulation and the First Amendment, 25 Wm. & Mary L. Rev. 189 (1983).
That would be nonsensical if the medium really were the message. Other scholars
have long maintained that media, or modes of expression, do not inherently
convey a particular meaning, but generate meaning through the way they are used
in particular settings. See, e.g., John Dewey, Art as Experience 60-64 (Perigree,
1980) (1934); Stanley Fish, Is There a Text in This Class? The Authority of
Interpretive Communities 317-18 (1980); Clifford Geertz, Local Knowledge:
Further Essays in Interpretive Anthropology 119 (1983) (“It is, after all, not just
statues (or poems or paintings) that we have to do with but the factors that cause
these things to seem important – that is, affected with import – to those who make
or possess them, and these are as various as life itself.”).

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 In one important sense, the South Salt Lake Ordinance is less

constitutionally problematic than the general public nudity bans upheld in Barnes

and Pap’s: it is more narrowly tailored. In Barnes and Pap’s, there was dispute

regarding the applicability of the prohibitions to legitimate theater or dance

involving nudity, such as the plays Equus or Hair or the ballet Salome. The

broad sweep of the public nudity prohibition seemed to present a dilemma: either

the prohibition would apply to such performances and thus appear overbroad, or

it would not apply and thus appear to be administered in a content-discriminatory

manner. By limiting its nudity ban to sexually oriented businesses – a

classification that itself is “content-neutral” within the meaning of this Court’s

cases, see Z-J Gifts, 136 F.3d at 686-87 – the City here has avoided both horns of

the dilemma.

We turn now to Plaintiffs’ arguments that the district court abused its

discretion in finding that they had not demonstrated a likelihood of success on

the merits.

B. Plaintiffs’ Arguments for Heightened Scrutiny

Plaintiffs argue against application of the relatively relaxed standard of

review employed in Barnes and Pap’s. They point out that Barnes and Pap’s

involved general prohibitions on public nudity, while the South Salt Lake

Ordinance bans nudity only within sexually oriented businesses. Accordingly,

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they argue that the South Salt Lake Ordinance is subject to strict scrutiny as a

“content-based” restriction on speech. Their argument finds some support in two

district court decisions, Nakatomi Investments, Inc. v. City of Schenectady, 949

F. Supp. 988, 998-99 (N.D.N.Y 1997), and Books, Inc. v. Potawatamie County,

978 F. Supp. 1247, 1257 (S.D. Iowa 1997). But the argument – or at least the

ultimate conclusion – has also been rejected by the only two courts of appeals to

consider it. Schultz v. City of Cumberland, 228 F.3d 831, 846-47 (7th Cir.

2000); Fly Fish, Inc. v. City of Cocoa Beach, 337 F.3d 1301, 1306-10 (11th Cir.

2003).

We reject Plaintiffs’ argument for two independent reasons. First, the

narrower scope of the South Salt Lake Ordinance, as compared with the general

public nudity prohibitions of Barnes and Pap’s, does not necessarily make the

Ordinance “content-based.” The prohibition is still on a form of conduct, and

unless the category of businesses to which it applies is defined by their

expressive content, the Ordinance remains “unrelated to the suppression of free

expression.” O’Brien, 391 U.S. at 377. Plaintiffs inform us that “[t]he

ordinance at issue here applies only to adult businesses featuring nude dancing as

expressive conduct,” Appellants’ Br. at 16, but they point to nothing in the

Ordinance that supports that interpretation. On its face, the Ordinance applies to

all “sexually oriented businesses,” which include establishments such as “adult

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motels” and “adult novelty stores,” which are not engaged in expressive activity.

Although the “sexually oriented business” category certainly encompasses some

expressive activities – adult cabarets and theaters, for example – this does not

mean that the Ordinance targets them. The nudity ban applies across the board to

all sexually oriented businesses, expressive and non-expressive alike. It is

typical of conduct restrictions evaluated under O’Brien to include some

expressive, as well as some non-expressive, activities within their reach. Where,

as here, expressive activities are not singled out for special regulation, O’Brien

applies. See Alameda Books, 535 U.S. at 447 (Kennedy, J., concurring)

(justifying application of lesser scrutiny to an ordinance that “is not limited to

expressive activities [but] extends, for example, to massage parlors”); Z-J Gifts,

136 F.3d at 686-87 (holding that an ordinance restricting sexually oriented

business is content-neutral within the meaning of Renton).

Second, even if the South Salt Lake Ordinance must be distinguished from

that in Barnes and Pap’s, and cannot be justified as a generally applicable

regulation of conduct, it still is subject to no more than intermediate scrutiny

under the Renton line of cases, because the governmental purpose is based on the

secondary effects of nudity in sexually oriented businesses rather than on

disagreements with the content of the message. Schultz, 228 F.3d at 845-46. To

be sure, as Plaintiffs point out, the ordinance upheld in Renton was a restriction

-28-
on the locations within the city in which the sexually oriented businesses could

locate, rather than, as here, a restriction on the manner in which they are

permitted to operate. But we think Plaintiffs are wrong to characterize this as a

“total ban” on the speech. Plaintiffs are not prohibited from communicating their

supposedly erotic message through dance; they are merely prohibited from doing

so in a state of total nudity. See Fly Fish, 337 F.3d at 1307-08.

In Pap’s, the plurality explicitly rejected the dissent’s characterization of a

nudity prohibition as a “complete ban on expression.” 529 U.S. at 292 (plurality

op.). The plurality explained: “The public nudity ban certainly has the effect of

limiting one particular means of expressing the kind of erotic message being

disseminated. . . . But simply to define what is being banned as the ‘message’ is

to assume the conclusion.” Id. at 292-93. Indeed, the plurality found that “[a]ny

effect on the overall expression is de minimis.” Id. at 294. Thus, far from being

a “complete ban,” the plurality found that the prohibition on nudity had a “de

minimis” effect on the performers’ ability to convey their desired message. Id.;

see also Schultz, 228 F.3d at 847 (concluding that a requirement that dancers in

sexually oriented businesses wear pasties and G-strings does not violate the First

Amendment).

The fallacy in Plaintiffs’ argument is to assume that the “adequate

alternative avenues of expression” required under the Renton line of cases refers

-29-
exclusively to location. Time, place, or manner regulations all are partial

limitations, but each is partial in a different way. “Place” limitations require

alternative locations; “time” limitations require alternative times; and “manner”

limitations require alternative ways in which a message may be communicated.

A ban on nudity within sexually oriented businesses is a “manner” regulation,

Fly Fish, 337 F.3d at 1308-09, and Plaintiffs have provided no reason to believe

that there do not exist other ways to get their message across. See Pap’s, 529

U.S. at 301 (“the requirement that dancers wear pasties and G-strings . . . leaves

ample capacity to convey the dancer’s erotic message.”); Schultz, 228 F.3d at 847

(same). While “there may be cases in which banning the means of expression so

interferes with the message that it essentially bans the message, that is not the

case here.” Pap’s, 529 U.S. at 293; Fly Fish, 337 F.3d at 1308.

C. Plaintiffs’ Argument Regarding Evidence of Secondary Effects and
the Record Before the District Court

Plaintiffs complain vigorously regarding the supposed inadequacy of the

factual record in this case to support the City’s claim that the Ordinance is

justified by the need to control the negative secondary effects of commercial

nude dancing. Indeed, they assert that “[t]here is no evidence that such effects

have occurred, or are in imminent danger of occurring, in South Salt Lake.

Plaintiffs believe that all evidence is to the contrary.” Appellants’ Br. at 24.

However, as counsel conceded at oral argument before this Court, at the hearing

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in the district court on their motion for preliminary injunctive relief, the

Plaintiffs did not present any evidence in support of their position. In their

briefs in this Court, Plaintiffs refer to various studies that they submitted to the

City Council, but did not trouble to present to the district court, and to other

evidence that they submitted in unrelated litigation in state court, but likewise

did not see fit to introduce below. See Appellants’ Br. at 24-26. Under these

circumstances, it is obvious that the district court did not abuse its discretion in

denying their motion. Plaintiffs simply had not met their burden of showing that

their right to relief was “clear and unequivocal.” Kikumura, 242 F.3d at 955.

We turn, nevertheless, to the four elements of intermediate scrutiny, as set

forth in O’Brien, 7 to determine whether the district court abused its discretion in

concluding, on this one-sided record, that Plaintiffs did not have a substantial

likelihood of success on the merits. Under intermediate scrutiny, a restriction on

speech must: (1) be within the constitutional power of government to adopt; (2)

further an important or substantial governmental interest; which (3) is unrelated

to the suppression of expression; and (4) be no greater restriction on First

7
The elements of intermediate scrutiny for time, place, or manner
regulations are only slightly different. In such a case, we ask simply whether the
regulation is “narrowly tailored to serve a significant governmental interest, and
. . . leave[s] open ample alternative channels for communication of the
information.” Clark, 468 U.S. at 293.

-31-
Amendment freedom than is essential to furtherance of the government’s

purpose. O’Brien, 391 U.S. at 377; Pap’s, 529 U.S. at 296, 301.

There is no doubt that the Ordinance is within the lawful powers of South

Salt Lake City. See Pap’s, 529 U.S. at 296 (the city’s “efforts to protect public

health and safety are clearly within the city’s police powers”).

The second factor is probably the most important and contested. To survive

intermediate scrutiny, the government must be able to demonstrate that the

challenged speech restriction serves a “substantial governmental interest.”

O’Brien, 391 U.S. at 377. The burden of proof is on the government to

“demonstrate that the recited harms are real, not merely conjectural, and that the

regulation will in fact alleviate these harms in a direct and material way.”

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 664 (1994). 8 On the other hand,

the Court has repeatedly emphasized that “municipalities must be given a

‘reasonable opportunity to experiment with solutions’ to address the secondary

8
It is not obvious that intermediate scrutiny cases from other contexts are
necessarily applicable to nude dancing or other sexually oriented speech, in light
of the Court’s position that “society’s interest in protecting this type of expression
is of a wholly different, and lesser, magnitude than the interest in untrammeled
political debate.” Barnes, 501 U.S. at 584 (Souter, J., concurring) (quoting
Young, 427 U.S. at 70). Nonetheless, the Court’s recent decisions in the context
of sexually explicit speech confirm that the government bears the burden of
providing evidence of secondary effects, where it relies on those secondary
effects as the justification for restricting speech. See Alameda Books, 535 U.S. at
437 (plurality op.).

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effects of protected speech.” Alameda Books, 535 U.S. at 439, quoting Renton,

475 U.S. at 52, quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71

(1976) (plurality op.) (internal quotation marks omitted). The standards for the

quantity and nature of the empirical evidence needed to uphold a city ordinance

based on the negative secondary effects of sexually oriented speech in general, or

nude dancing in particular, are continuing to evolve.

In Renton, a six-Justice majority of the Supreme Court held that “[t]he First

Amendment does not require a city, before enacting such an ordinance, to

conduct new studies or produce evidence independent of that already generated

by other cities, so long as whatever evidence the city relies upon is reasonably

believed to be relevant to the problem the city addresses.” 475 U.S. at 51-52.

Accordingly, it is common in these cases for cities to cite and rely on seemingly

pre-packaged studies, as well as the findings of courts in other cases. Here,

South Salt Lake invoked a typical set of such studies and findings in support of

its Ordinance.

In Barnes, the three-Justice plurality (Chief Justice Rehnquist, joined by

Justices O’Connor and Kennedy) sustained a prohibition on public nudity, as

applied to nude dancing, on the basis of the “substantial government interest in

protecting order and morality,” without the need for any empirical evidence

regarding secondary effects. Barnes, 501 U.S. at 569 (plurality op.). Justice

-33-
Scalia concurred on the ground that a general public nudity prohibition “is not

subject to First Amendment scrutiny at all.” Id. at 572 (Scalia, J., concurring).

The decisive fifth vote was cast by Justice Souter, whose opinion is controlling

under the rule of Marks v. United States, 430 U.S. 188, 193 (1977) (“When a

fragmented Court decides a case and no single rationale explaining the result

enjoys the assent of five Justices, the holding of the Court may be viewed as that

position taken by those Members who concurred in the judgments on the

narrowest grounds.” (internal quotation marks omitted)). Justice Souter

concluded, contrary to the plurality, that the city was required to show secondary

effects of the sort canvassed in Renton, and not merely an interest in order and

morality. Barnes, 501 U.S. at 583-86 (Souter, J., concurring). But he maintained

that it was not necessary for cities to “litigate this issue repeatedly in every

case,” and thus that previous court findings in Renton and other cases provided

sufficient evidentiary support. Id. at 584.

In Pap’s, a four-Justice plurality (Justice O’Connor, joined by the Chief

Justice, Justice Kennedy, and Justice Breyer) voted to uphold a general public

nudity ban almost identical to that upheld in Barnes, but did so on the basis of

secondary effects. The Court emphasized that the city did not have to produce

new studies and was permitted to rely on the evidentiary foundation in earlier

cases. Pap’s, 529 U.S. at 296-97. The Court also treated the judgments of city

-34-
council members regarding the need for the ordinance as evidence. “The city

council members, familiar with commercial downtown Erie, are the individuals

who would likely have had firsthand knowledge of what took place at and around

nude dancing establishments in Erie, and can make particularized, expert

judgments about the resulting harmful secondary effects.” Id. at 297-98. Indeed,

the Court observed that “O’Brien, of course, required no evidentiary showing at

all that the threatened harm was real.” Id. at 299; see also id. at 298 (“On this

point, O’Brien is especially instructive. The Court there did not require evidence

that the integrity of the Selective Service System would be jeopardized. . . .”).

The plurality also noted that the plaintiffs had “ample opportunity to contest the

council’s findings about secondary effects – before the council itself, throughout

the state proceedings, and before this Court,” but had failed to do so. Id. at 298.

“In the absence of any reason to doubt it,” the plurality stated, “the city’s expert

judgment should be credited.” Id.

Two Justices concurred on the ground that a regulation of conduct is

unconstitutional only where the “government prohibits conduct precisely because

of its communicative attributes,” making it unnecessary to inquire into the

empirical basis for the secondary effects justification (about which these Justices

were skeptical). Id. at 310 (Scalia, J., joined by Thomas, J., concurring).

Accordingly, under the rule of Marks, the plurality opinion constitutes the

-35-
holding of the Court. This suggests that the City’s initial burden to present

empirical support for its conclusions is minimal, but that plaintiffs must have an

opportunity to present their own evidence, to which the city is then entitled to

respond.

In Alameda Books, the Court granted certiorari to “clarify the standard for

determining whether an ordinance serves a substantial government interest under

Renton.” 535 U.S. at 433. Again, however, the Court failed to produce a

majority opinion. The four-Justice plurality (Justice O’Connor, joined by the

Chief Justice, Justice Scalia, and Justice Thomas) reaffirmed the basic approach

taken in Renton and Barnes. The Court explained that “the city certainly bears

the burden of providing evidence that supports a link between concentrations of

adult operations and asserted secondary effects,” but it did not require the city to

“bear the burden of providing evidence that rules out every theory for the link

between concentrations of adult establishments that is inconsistent with its own.”

Id. at 437. The plurality distinguished between two parts of the Renton

intermediate scrutiny framework: whether an ordinance is content-neutral and

whether it serves a substantial governmental interest while leaving open

alternative avenues of communication. Only with regard to the latter would the

courts “examine evidence concerning regulated speech and secondary effects.”

Id. at 440-41.

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 Even as to that connection, the plurality reiterated that the Court had

“refused to set such a high bar for municipalities that want to address merely the

secondary effects of protected speech.” Id. at 438. It stated that cities are

entitled to rely, in part, on “appeal to common sense,” rather than “empirical

data,” at least where there is no “actual and convincing evidence from plaintiffs

to the contrary.” Id. at 439. In so holding, the Alameda plurality provided the

following observation regarding the deference properly accorded to legislative

findings under the second prong of the O’Brien test:

This is not to say that the municipality can get away with shoddy data
or reasoning. The municipality’s evidence must fairly support the
municipality’s rationale for its ordinance. If plaintiffs fail to cast
direct doubt on this rationale, either by demonstrating that the
municipality’s evidence does not support its rationale or by
furnishing evidence that disputes the municipality’s factual findings,
the municipality meets the standard set forth in Renton. If plaintiffs
succeed in casting doubt on a municipality’s rationale in either
manner, the burden shifts back to the municipality to supplement the
record with evidence renewing support for a theory that justifies its
ordinance.

Id. at 438-39 (citing Pap’s, 529 U.S. at 298). The plurality described its

“deference to the evidence presented by the city” as “the product of a careful

balance between competing interests.” Alameda, 535 U.S. at 440. On the one

hand, courts have an obligation to exercise independent judgment in First

Amendment cases, but on the other hand the plurality acknowledged “that the

-37-
Los Angeles City Council is in a better position than the Judiciary to gather and

evaluate data on local problems.” Id.

Justice Kennedy concurred separately. However, he did not criticize the

plurality’s approach to the evidence necessary to support a secondary effects

justification. If anything, Justice Kennedy’s comments on that issue appear

somewhat more deferential to the cities: “As a general matter, courts should not

be in the business of second-guessing fact-bound empirical assessments of city

planners.” Id. at 451 (Kennedy, J., concurring). “The Los Angeles City Council

knows the streets of Los Angeles better than we do. . . . It is entitled to rely on

that knowledge; and if its inferences appear reasonable, we should not say there

is no basis for its conclusion.” Id. at 452.

Applying these precedents, we cannot say that the district court abused its

discretion in concluding that the Plaintiffs failed to show a likelihood of success

on the merits. The evidentiary record compiled by South Salt Lake City is

similar to the record on which the Court affirmed the ordinance in Pap’s.

Presumably, the City Council of South Salt Lake is entitled to as great a degree

of deference as that of any other. The Plaintiffs failed to submit any evidence in

district court that might call the City’s empirical judgments into question.

Without “actual and convincing evidence from plaintiffs to the contrary,”

-38-
Alameda Books, 535 U.S. at 439 (plurality op.), there was no reason for the

district court to inquire any further.

The third O’Brien factor, that the government interest is unrelated to the

suppression of free expression, follows from the second. As explained above,

from Renton onward, the Court has consistently held that the control of negative

secondary effects, such as those invoked by South Salt Lake City, is unrelated to

the suppression of free expression.

Finally, the district court did not abuse its discretion in concluding that the

Ordinance satisfies the fourth and final O’Brien factor – that the restriction is no

greater than is essential to the furtherance of the government interest – for the

same reason that factor was satisfied in Pap’s: the requirement that dancers wear

“G-strings” and “pasties” has a “de minimis” effect on their ability to

communicate their message. Pap’s, 529 U.S. at 301 (“The requirement that

dancers wear pasties and G-strings is a minimal restriction in furtherance of the

asserted government interests, and the restriction leaves ample capacity to

convey the dancer’s erotic message.”). Plaintiffs evidently disagree with that

conclusion, but offer no basis for distinguishing the Supreme Court’s conclusion.

In summary, as the case is now postured, the Plaintiffs put on no evidence

before the district court to establish a likelihood that O’Brien factors two, three

and four favored their case on the merits. Because they failed to put on such

-39-
evidence, the Plaintiffs have not demonstrated a substantial likelihood of success

on the merits.

Conclusion

For the foregoing reason, the decision of the district court denying the

Plaintiffs’ motion for preliminary injunction is AFFIRMED. However, because

the record before us is very limited, we note specifically that we express no

opinion on the ultimate merits of this case. Plaintiffs’ motion to supplement the

record with materials not before the district court is DENIED.

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