Doe I et al v. Marine-Lombard

Filing 59

ORDER AND REASONS. It is ORDERED that Plaintiffs' 16 Motion for Preliminary Injunction is GRANTED. It is FURTHER ORDERED that Defendant Juana Marine-Lombard, in her official capacity as Commissioner, Louisiana Office of Alcohol and Tobacco Control, is ENJOINED from enforcing or causing any other state actor to enforce Act No. 395 anywhere within the State of Louisiana pending further Order of this Court. Signed by Judge Carl Barbier. (gec)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

JANE DOE I, ET AL.

CIVIL ACTION

VERSUS

NO: 16-14876

JUANA MARINE-LOMBARD

SECTION: “J”(4)
ORDER AND REASONS

Before

the

Court

is

Injunction (Rec. Doc. 16).

Plaintiffs’

Motion

for

Preliminary

The briefing for this motion was

extensive, and included: the motion (Rec. Doc. 16) filed by Jane
Doe I, Jane Doe II, and Jane Doe III; two oppositions thereto, one
(Rec. Doc. 47) filed by Defendant Juana Marine-Lombard, in her
Official Capacity as Commissioner, Louisiana Office of Alcohol and
Tobacco Control (“Commissioner Marine-Lombard”), and another (Rec.
Doc. 49) filed by Intervenor Jeff Landry, Attorney General for the
State of Louisiana (“Intervenor”); and a reply (Rec. Doc. 53) filed
by Plaintiffs.

The oppositions (Rec. Docs. 47 and 49) filed by

Commissioner Marine-Lombard and Intervenor (hereinafter, referred
to collectively as the “State”) each address different arguments
made by Plaintiffs and read as one single opposition.
Plaintiffs argue that they are likely to succeed on the merits
of the following claims: 1) Act No. 395 violates Plaintiffs’ rights
to free expression; 2) the Act is unconstitutionally overbroad; 3)
the Act is unconstitutionally vague; 4) the Act violates the Equal
1

Protection Clause; and 5) the Act violates Plaintiffs’ due process
rights.

Because Plaintiffs have made a clear showing that they

are entitled to the relief they request on grounds that Act No.
395 is unconstitutionally overbroad and unconstitutionally vague,
the Court finds that the Motion for Preliminary Injunction (Rec.
Doc. 16) should be GRANTED.
FACTS AND PROCEDURAL BACKGROUND
This litigation arises from an Act passed by the Louisiana
legislature and signed into law by the Governor of Louisiana, John
Bel Edwards.

On or about June 5, 2016, Governor Edwards signed

into law Act No. 395.

This Act changed the substance of two

statutes found within the Louisiana Alcoholic Beverage Control
Law, which is Louisiana’s regulatory scheme for the sale and
consumption of alcohol.

See La. Rev. Stat. § 26:1; Louisiana v.

Larson, 94-1237, p. 7 (La. 4/10/95); 653 So. 2d 1158, 1163.

More

specifically, Act No. 395 amended and reenacted statutes found
within § 26:90 and § 26:286, both of which are provisions governing
“Acts

prohibited

language

of

§

on

premises.” 1

licensed

26:90(E)

and

§

26:286(E)

The

newly

introduces

amended

age-based

restrictions for live entertainers on premises licensed to serve
alcohol.

See also § 26:90(D) and § 26:286(D) (prohibiting certain

1 La. Rev. Stat. § 26:90 and 26:286 are very similar provisions.
The major
difference between them is that § 26:90 regulates retail dealers who sell or
serve alcoholic beverages, while § 26:286 regulates retail dealers who sell or
serve “beverages of low-alcoholic content.”
See La. Rev. Stat. §
26:286(A)(1)(a).

2

acts from being performed on licensed premises).

Both statutes

read as follows:
Subject to the provisions of Subsection D of this
Section, entertainers whose breasts or buttocks are
exposed to view shall perform only upon a stage at least
eighteen inches above the immediate floor level and
removed at least three feet from the nearest patron and
shall be twenty-one years of age or older.
La. Rev. Stat. § 26:90(E) and § 26:286(E) (effective Aug. 1,
2016). 2

Plaintiffs’ complaint alleges that the effect of the

amendment was to create an age restriction for erotic dancing that
did not previously exist. The complaint further alleges that prior
to enactment of Act No. 395, a person only needed to be eighteen
years old to be an erotic dancer in Louisiana.
Act No. 395 became effective on August 1, 2016.

Shortly

thereafter, the Louisiana Office of Alcohol and Tobacco Control
(ATC),

the

agency

tasked

with

enforcing

Act

No.

395,

began

enforcing the Act throughout Louisiana, except for the City of New
Orleans

(“New

Orleans”).

Instead,

the

ATC

planned

to

begin

enforcing Act No. 395 in New Orleans on October 1, 2016.

2

Prior to Enactment of Act 395, § 26:90(E) stated:
Subject to the provisions of Subsection D of this Section,
entertainers whose breasts or buttocks are exposed to view shall
perform only upon a stage at least eighteen inches above the
immediate floor level and removed at least three feet from the
nearest patron.

La. Rev. Stat. § 26:90(E) (2010) (amended by Act No. 395). Section 26:286(E)
was identical to section 26:90(E), except its opening phrase was: “Subject to
the provisions of Subparagraph(b)(i) of Subsection D of this Section, . . . .”
§ 26:286(E) (2010) (amended by Act No. 395).

3

Three erotic dancers who are under the age of twenty-one, but
who are eighteen or older, filed a complaint on September 22, 2016
against Commissioner Marine-Lombard, in her Official Capacity as
Commissioner of the ATC requesting injunctive and declaratory
relief.

(Rec. Doc. 1 at 19).

All three Plaintiffs are women who

are residents of Louisiana and who were employed as erotic dancers
prior to the enforcement of Act No. 395.

Plaintiffs are twenty,

nineteen, and eighteen years of age, respectively.

Two of the

three Plaintiffs reside in New Orleans, while the other is a
resident of Baton Rouge.

Two of the Plaintiffs were employed as

erotic dancers in Baton Rouge.

These Plaintiffs allege that when

Act No. 395 became effective on August 1, 2016, they were forced
to stop working as erotic dancers, and instead worked as “shot
girls,” which the Plaintiffs allege is a less lucrative position.
One of the Plaintiffs is employed as an erotic dancer in New
Orleans.
Plaintiffs allege that Act No. 395 violates the First and
Fourteenth

Amendments

to

the

United

States

Constitution

and

Article I, sections 2, 3, and 7 of the Louisiana Constitution.
The complaint also alleges that Act No. 395 violates Plaintiffs’
substantive due process rights under the Due Process Clause of the
Fourteenth Amendment and their rights to contract under Article I,
section 10(1) of the United States Constitution and Article I,
section 23 of the Louisiana Constitution.
4

Plaintiffs bring a

facial challenge to the constitutionality of Act No. 395 and
request a declaration that Act No. 395 violates the United States
and Louisiana Constitutions.

Plaintiffs also filed a Motion for

Preliminary Injunction (Rec. Doc. 4-2) and Motion for Expedited
Consideration (Rec. Doc. 5) requesting that the Court grant a
preliminary injunction precluding Commissioner Marine-Lombard from
enforcing Act No. 395 in New Orleans.

Construing the Motion for

Preliminary Injunction (Rec. Doc. 4-2) as a request for a Temporary
Restraining Order, this Court temporarily restrained Commissioner
Marine-Lombard from enforcing Act No. 395 anywhere within the state
of Louisiana pending further Order of this Court on September 30,
2016.

(Rec. Doc. 10 at 2-3.)

On November 3, 2016, Jeff Landry, in his official capacity as
Attorney

General

of

the

State

of

Louisiana

(“Intervenor”)

intervened in this matter. On November 14, 2016, both Commissioner
Marine-Lombard
collectively
Plaintiffs’

and
as

the

Motion

Marine-Lombard’s

Intervenor
“State”)

for

(hereinafter,
filed

Preliminary

opposition

(Rec.

separate

referred
oppositions

Injunction.
Doc.

47)

and

to
to

Commissioner
Intervenor’s

opposition (Rec. Doc. 49) each address different arguments made in
Plaintiffs’ Motion for Preliminary Injunction and are read as a
single opposition.

5

LEGAL STANDARD
A preliminary injunction is an “extraordinary and drastic
remedy” that may only be awarded upon a clear showing that the
plaintiff is entitled to such relief. Munaf v. Geren, 553 U.S.
674, 689 (2008). A plaintiff seeking a preliminary injunction must
establish (1) a substantial likelihood of success on the merits;
(2) a substantial threat of irreparable injury if the injunction
is not granted; (3) that their substantial injury outweighs the
threatened harm to the party whom they seek to enjoin; and (4)
that granting the preliminary injunction will not disserve the
public interest. Planned Parenthood Ass'n of Hidalgo Cty. Tex.,
Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012); accord Canal
Auth. of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974).
None of the four requirements has a fixed quantitative value.
Texas v. Seatrain Int'l, S. A., 518 F.2d 175, 180 (5th Cir. 1975).
Therefore, in applying the four-part test, “a sliding scale is
utilized, which takes into account the intensity of each in a given
calculus.”

Id.

probabilities

of

This

requires

ultimate

“a

success

delicate
at

final

balancing
hearing

of

the

with

the

consequences of immediate irreparable injury that possibly could
flow from the denial of preliminary relief.” Klitzman, Klitzman &
Gallagher v. Krut, 744 F.2d 955, 958 (3d Cir. 1984).
The decision to grant or deny a preliminary injunction is
discretionary with the district court. Miss. Power & Light Co. v.
6

United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985).
However, because a preliminary injunction is an extraordinary
remedy, it “should not be granted unless the party seeking it has
clearly carried the burden of persuasion on all four requirements.”
Suehs, 692 F.3d at 348. Consequently, the decision to grant a
preliminary injunction “is the exception rather than the rule.”
Miss. Power & Light Co., 760 F.2d at 621.
The

purpose

of

a

preliminary

injunction

is

limited

to

preserving the relative positions of the parties until a trial on
the merits can be held. Univ. of Tex. v. Camenisch, 451 U.S. 390,
395 (1981). “Given this limited purpose, and given the haste that
is often necessary if those positions are to be preserved, 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.” Id. For this reason, the findings
of fact and conclusions of law made by a court deciding whether to
grant a preliminary injunction are not binding at trial on the
merits. Id.
DISCUSSION
1. Likelihood of Success on the Merits
a. Content-Based or Content-Neutral Restriction
The Court must first consider whether Act No. 395 is a
content-based or content-neutral restriction on Plaintiffs’ First
Amendment Rights.

When the government’s interest is to suppress
7

the content of the speech, then strict scrutiny is applied to the
government action.

Fantasy Ranch, Inc. v. City of Arlington, 459

F.3d 546, 554 (5th Cir. 2006).

Content-based restrictions on

speech “presumptively violate the First Amendment,” Renton v.
Playtime Theatres, Inc., 475 U.S. 41, 46-47 (1986), and must be
narrowly tailored to promote a compelling government interest.
United States v. Playboy Entm’t Grp., Inc., 529 U.S. 803, 813
(2000).

However, content-neutral restrictions on speech, namely

those where the “government’s predominate purpose is unrelated to
the

suppression

scrutiny.

of

expression,”

are

subject

to

intermediate

Fantasy Ranch, 459 F.3d at 554 (citing Clark v. Cmty.

for Creative Non-Violence, 468 U.S. 288, 293 (1984)).
Plaintiffs

argue

that

Act

No.

395

is

a

content-based

restriction because it completely bans a group of people – women
ages eighteen to twenty years old – from engaging in the protected
expression

of

nude

erotic

dancing.

(Rec.

Doc.

16-1

at

9.)

Therefore, Plaintiffs argue that Act No. 395 is not just a time,
place, and manner restriction, but rather a total restriction of
a protected form of expression. Id. Furthermore, Plaintiffs argue
that the Louisiana legislature passed Act No. 395 with the intent
of suppressing protected First Amendment expression, and not to
avoid secondary effects of erotic dancing.
7.)
total

(Rec. Doc. 53-2 at 6-

The State counters that Act No. 395 does not constitute a
ban

on

the

protected

expression
8

of

erotic

dancing

for

eighteen to twenty year-old women because they can still dance
erotically in a bikini in liquor-licensed establishments or dance
completely nude in establishments that do not serve alcohol. (Rec.
Doc. 47 at 27.)
Nude dancing is expressive conduct that “falls only within
the outer ambit of the First Amendment’s protection.”
Erie v. Pap’s A.M., 529 U.S. 277, 289 (2000).

City of

Therefore, alcohol

regulations aimed at combating the harmful secondary effects of
nude dancing are routinely reviewed under intermediate scrutiny.
See Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d 993, 996
(11th Cir. 1998) (holding that city ordinance prohibiting nudity
in establishments serving alcohol was content-neutral and should
be reviewed under intermediate scrutiny); see also IllusionsDallas Private Club, Inc.v. Steen, 482 F.3d 299, 307 (5th Cir.
2007) (“Courts routinely apply intermediate scrutiny to alcohol
regulations of [sexually oriented businesses], and we do so here.”)
Because a “statute’s predominant purpose determines the level
of scrutiny,” it is necessary to identify the predominant purpose
behind Act No. 395.
F.3d at 308.
purpose

must

See Illusions-Dallas Private Club, Inc., 482

Plaintiffs point out that “a statute’s predominant
be

determined

with

contemporaneous with the enactment.”

Id.

reference

to

events

Therefore, Plaintiffs

argue that Act No. 395, which has no statutory preamble setting
forth its purpose, fails to identify a content-neutral predominant
9

purpose.

Instead,

Plaintiffs

argue

that

the

Louisiana

legislature’s true purpose in passing Act No. 395 was to prevent
eighteen to twenty year-old women from nude erotic dancing when
“there is a better way of living.”

(Rec. Doc. 53-2 at 5.)

However, neither a preamble nor legislative history is required to
determine

the

existence

of

a

content-neutral

purpose.

Illusions-Dallas Private Club, Inc., 482 F.3d at 310.

See

The Fifth

Circuit has held that a regulation found in the Texas Alcoholic
Beverage

Code

was

subject

regulation’s

“plain

text

demonstrated

that

its

suppression of speech.

to
and

intermediate
its

predominant

place

scrutiny
within

purpose

was

the

when

the

[code]”

unrelated

to

Illusions-Dallas Private Club, Inc., 482

F.3d at 308; see also Baby Dolls Topless Saloon, Inc. v. City of
Dallas, 295 F.3d 471, 484-85 (5th Cir. 2002) (analyzing a city
code amendment requiring performers to wear bikini tops to avoid
“sexually oriented business” classification as a content-neutral
regulation).

Similarly, the plain text of Act No. 395 and its

placement within the Louisiana Alcoholic Beverage Control Law
demonstrate that this is a content-neutral restriction.
b. Application of Intermediate Scrutiny
The intermediate scrutiny applied to content-neutral speech
restrictions comes from a test set out by the Supreme Court in

10

United States v. O’Brien, 3 391 U.S. 367 (1968).

The O’Brien test

requires courts to consider whether: “(1) the regulation is within

3

The parties disagree about whether the Court should apply the O’Brien test,
or a hybrid test laid out by the Seventh Circuit in Ben’s Bar, Inc. v. Vill. of
Somerset, 316 F.3d 702 (7th Cir. 2003).
The Ben’s Bar court attempted to
determine which Supreme Court standard it should apply to an adult entertainment
liquor regulation. Id. at 714. Ben’s Bar distinguished the tests used for
zoning ordinances from the test used to analyze adult entertainment zoning
ordinances. 316 F.3d at 713. Ben’s Bar concluded that the Supreme Court applies
the O’Brien test to analyze the constitutionality of public indecency statutes.
Id.; see Pap’s A.M., 529 at 289-90 (plurality opinion) (applying the O’Brien
test to an ordinance that prohibited public nudity). However, Ben’s Bar noted
that the Supreme Court “evaluates adult entertainment zoning ordinances as time,
place, and manner regulations.”
Id.; see Alameda Books, 535 U.S. at 440
(analyzing a zoning ordinance that prohibited multiple adult businesses in one
building according to the standard that it must be “designed to serve a
substantial government interest and do[es] not unreasonably limit alternative
avenues of communication” (internal citations omitted)). Because the statute
at issue in Ben’s Bar was different from both a zoning ordinance and a public
indecency statute, the court decided upon a hybrid between the O’Brien test and
the test laid out in Alameda Books.
The hybrid test employed by the Ben’s Bar court for analyzing the
constitutionality of a liquor regulation precluding the sale or consumption of
alcohol on premises of adult entertainment establishments asks whether:
(1) the State is regulating pursuant to a legitimate governmental
power,
(2)
the
regulation
does
not
completely
prohibit
adult
entertainment,
(3) the regulation is aimed not at the suppression of expression,
but rather at combating the negative secondary effects caused by
adult entertainment establishments, and
(4) the regulation is designed to serve a substantial government
interest, narrowly tailored, and reasonable alternative avenues of
communication remain available; or, alternatively, the regulation
furthers an important or substantial government interest and the
restriction on expressive conduct is no greater than is essential
in furtherance of that interest.
Id. at 722. (internal citations omitted) (line breaks added).
In Illusions-Dallas Private Club, Inc. v. Steen, the Fifth Circuit applied
the Ben’s Bar hybrid test to analyze the constitutionality of a law that
prohibited sexually oriented businesses operating in dry political subdivisions
from serving alcohol. 482 F.3d 299, 303 (5th Cir. 2007). However, the court
did not explicitly endorse the test. Id. (“On appeal, neither party disputes
the use of the hybrid test. We therefore need not decide whether to adopt it
in circumstances such as the one here.”) Thus, the parties here dispute which
test is applicable to the instant matter.
Plaintiffs argue that because Act No. 395 is not a zoning ordinance, the
O’Brien test is the appropriate vehicle for analyzing the Act.
The State

11

the constitutional power of the government; (2) it furthers an
important governmental interest that is (3) unrelated to the
suppression of speech; and (4) the incidental restrictions on
speech are no greater than is essential to further the interest.”
Illusions-Dallas Private Club, Inc., 482 F.3d at 311 (citing
O’Brien, 391 U.S. at 376-77).

The State has the burden of proving

these elements are satisfied.

Playboy Entm’t Grp. Inc, 529 U.S.

at 816-17.

Plaintiffs do not contest that the State has the

constitutional power to combat human trafficking and therefore do
not argue that Act No. 395 fails to satisfy O’Brien’s first
requirement that the State has the power to combat such an ill.
(Rec. Doc. 16-1 at 14.)

Additionally, the Court has already

concluded that Act No. 395 is unrelated to the suppression of
speech

and,

requirement.

thus,

Act.

No.

395

satisfies

O’Brien’s

third

See Horton v. City of Houston, 179 F.3d 188, 194

disagrees, arguing that the Fifth Circuit’s application of the hybrid model in
Illusions-Dallas Private Club suggests that the court has adopted it for use in
evaluating the constitutionality of alcohol regulations.
Ultimately, the different models for analyzing the variety of contentneutral First Amendment regulations is more academic than practically important.
As the Ben’s Bar court noted, it is “abundantly clear that the analytical
frameworks and standards utilized by the [Supreme] Court in evaluating adult
entertainment regulations, be they zoning ordinances or public indecency
statutes, are virtually indistinguishable.” Ben's Bar, 316 F.3d at 714. The
Illusions-Dallas Private Club court also acknowledged the similarity when it
stated that “the result would be the same under either Alameda Books or O’Brien.”
482 F.3d at 311.
Without further direction from Fifth Circuit, the Court
applies O’Brien, satisfied that the similarities between the tests will lead to
the same result either way.

12

(5th Cir. 1999) (holding that because a regulation was “on balance
a content-neutral rule, the third prong of the O’Brien test [had]
been satisfied”).

The parties dispute the other two prongs of

O’Brien and both will be discussed in turn.
i.

Important or Substantial Governmental Interest

The State argues that Act No. 395 serves the substantial
governmental interest of combatting negative secondary effects.
(Rec. Doc. 47 at 35.)

Regulations that attempt to mitigate the

secondary effects of erotic dancing serve a substantial government
interest. See Pap’s A.M., 529 U.S. at 296 (“The asserted interests
of regulating conduct through a public nudity ban and of combating
the harmful secondary effects associated with nude dancing are
undeniably important.”)

Secondary effects are distinguishable

from the “primary effects of the expression, i.e., the effect on
the audience of watching nude dancing.” Id. at 291.

The Supreme

Court has identified secondary effects as those “such as the
impacts on public health, safety, and welfare, which . . . are
‘caused by the presence of even one’” nude dancing facility.
(quoting Renton, 475 U.S. at 47-48).

Id.

When the government argues

that its regulation combats secondary effects, it must demonstrate
that it has a reasonable basis for believing the conduct it aims
to regulate leads to secondary effects.
at

313

(Souter,

J.

concurring

in

See Pap’s A.M., 529 U.S.

part,

dissenting

in

part)

(“[I]ntermediate scrutiny requires a regulating government to make
13

some demonstration of an evidentiary basis for the harm it claims
to flow from the expressive activity, and for the alleviation
expected from the restriction imposed.”)

However, the government

is only required to provide “very little evidence” to support that
proposition, City of Los Angeles v. Alameda Books, Inc., 535 U.S.
425, 451 (2002) (Kennedy, J., concurring in the judgment), and is
only

required

to

Illusions-Dallas

satisfy
Private

a

“very

Club,

light”

Inc.,

evidentiary

482

F.3d

at

burden.

313.

In

justifying the existence of secondary effects, the government “may
rely on any evidence that is ‘reasonably believed to be relevant’
for demonstrating a connection between speech and a substantial,
independent government interest.”

Fantasy Ranch Inc., 459 F.3d at

559 (quoting Alameda Books, 535 U.S. at 438).

However, the

government may not rely on “shoddy data or reasoning,” and the
government’s

“evidence

must

fairly

Alameda Books, 535 U.S. at 426.

support

[its]

rationale.”

“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

ordinance.”

support

for

a

theory

that

justifies

its

Id.

When determining whether a regulation furthers an important
governmental

interest,

the

Court

must

make

two

different

inquiries: “first, ‘whether there is a substantial government
interest . . . i.e. whether the threatened harm is real,’ and,
14

second, ‘whether the regulation furthers that interest.’” Fantasy
Ranch Inc., 459 F.3d at 558-59 (quoting Pap’s A.M., 529 U.S. at
300).
Thus,

Plaintiffs argue that Act No. 395 fails both inquiries.
the

first

question

is

whether

the

threatened

harm

of

increased human trafficking as a result of women under the age of
twenty-one engaging in nude dancing is real.

Plaintiffs do not

dispute that human trafficking causes harm, but instead they argue
that human trafficking is not a secondary effect of erotic nude
dancing.

(Rec. Doc. 16-1 at 15.)

Plaintiffs aver that the State

can only rely upon secondary effects of erotic nude dancing if
those secondary effects actually exist.
of

Fed.

Heights,

285

F.3d

1272,

See Essence, Inc. v. City

1284

(10th

Cir.

2002)

(“A

municipality only has a substantial or important governmental
interest in combating the harmful secondary effects of nude dancing
if those secondary effects are real.”)

The State counters that it

has met its “very light” evidentiary burden for demonstrating the
existence of secondary effects.
The Court must determine whether the State has presented “some
evidence” that allowing eighteen to twenty year-olds to engage in
completely nude erotic dancing leads to secondary effects.

See

J&B Entm't, Inc. v. City of Jackson, Miss., 152 F.3d 362, 371 (5th
Cir. 1998) (emphasis in original).

Although Act No. 395 does not

include a preamble setting forth the Act’s purpose (Rec. Doc. 532 at 6), neither “a legislative record [n]or statutory preamble is
15

required to discern a content-neutral predominant purpose.”
Illusions-Dallas Private Club, Inc., 482 F.3d at 310.

See

Instead,

the Court may analyze the evidence presented by the State in its
opposition to the instant motion for preliminary injunction.
evidence

is

not

especially

strong.

For

instance,

the

This
State

provides the voluminous report from a statewide investigation
conducted by the ATC between September and November 2015, called
“Operation Trick or Treat.”

(See Rec. Doc. 47 at 9.)

The Trick

or Treat report is filled with detailed accounts of solicitation
for prostitution and the sale and consumption of illicit narcotics
that occurred in strip clubs and bars in Louisiana.
Docs. 47-13, 47-15.)

(See Rec.

However, the report does not specifically

isolate eighteen to twenty year-olds as victims.

The State also

devotes three pages in its brief to the death of Jasilas Wright,
a nineteen-year-old woman who the State asserts was killed on June
10, 2016 after finishing a shift as an erotic dancer in a strip
club on Bourbon Street.
that

Ms.

Wright

(Rec. Doc. 47 at 6-9.)

transitioned

from

erotic

The State avers
dancing

prostitution, and was eventually killed by her pimp.

Id.

into
The

State provides research to support the conclusion that Ms. Wright’s
experience of becoming a prostitute through her work as an erotic
dancer is not an uncommon story.

Id. at 8.

The State also attempts to connect Act No. 395 to a New
Orleans

City

Council

ordinance
16

passed

on

January

7,

2016,

approximately five months before the passage of Act No. 395. (Rec.
Doc. 47 at 5-17.)

Ordinance No. 31,035 prohibits people under the

age of twenty-one from “danc[ing], perform[ing], or entertain[ing]
while unclothed or in such attire, costume, or clothing that does
not completely and opaquely cover genitals, pubic region, buttock
and female breast below a point immediately above the top of the
areola.”

(Rec. Doc. 47 at 10-11.)

Much of the evidence the State

presents in support of its position that Act No. 395’s purpose was
to eliminate secondary effects of erotic dancing actually stems
from the testimony supporting the passage of the New Orleans
Ordinance No. 31,035.

For instance, the State cites to testimony

provided

Orleans

to

the

New

City

Council

by

Jim

Kelly,

the

Executive Director of Covenant House New Orleans, 4 Id. at 11-14,
Susanne Dietzel, Executive Director of Eden House New Orleans, 5
Id. at 16, Ron Lazell, a Lutheran pastor, Id. at 16.

The State

also relies upon comments made by New Orleans City Council members
in support of Ordinance No. 31,035.

Id. at 16-18.

There is no

indication that the Louisiana legislature relied on the evidence
used to support Ordinance No. 31,035 when it passed Act No. 395.

4 Covenant House New Orleans is a safe haven for homeless, runaway, and at-risk
youth. (Rec. Doc. 47 at 11.)
5 According to its website, Eden House New Orleans aims to empower women and
transform their lives “by providing a safe home, coordinating recovery services,
and through advocacy, outreach, education, and love.” Eden House New Orleans
home page, http://www.edenhousenola.org/.

17

This evidence is sufficient to meet the “reasonable belief”
standard to satisfy the second prong of O’Brien.

The Louisiana

legislature is not required to prove that it actually considered
the evidence when adopting Act No. 395 so long as it provides
sufficient evidence at this time.

See J&B Entm't, Inc., 152 F.3d

at 372 (stating that “ordinances regulating adult entertainment
[are

upheld]

where

the

government

has

introduced

sufficient

evidence to justify the ordinance on the basis of preenactment
legislative findings or evidence adduced at trial”) (emphasis
added).

When weighing this evidence, the Court does “not ask

whether the regulator subjectively believed or was motivated by
other concerns, but whether an objective lawmaker could have so
concluded . . . .” J&B Entm’t, Inc., 152 F.3d at 373.

Furthermore,

the State’s reference to the testimony of proponents of the New
Orleans Ordinance can be relied upon here.

See Pap’s A.M., 529

U.S. at 279 (noting that a “city need not conduct new studies or
produce evidence independent of that already generated by other
cities to demonstrate the problem of secondary effects” (internal
citations omitted)).

The testimony of leaders in New Orleans, a

city which is in Louisiana and home to many of the state’s adult
entertainment venues, is sufficient to illuminate the secondary
effect of nude dancing on women under the age of twenty-one.
Despite this evidence produced by the State, Plaintiffs argue
that the Louisiana legislature’s true animating forces behind Act
18

No. 395 were paternalistic and moralistic concerns about how women
under the age of twenty-one should live, not the goal of reducing
the secondary effect of human trafficking.

Plaintiffs argue that

statements made by some Louisiana legislators advocating for the
passage of Act No. 395 support this conclusion.
Representative

Robby

Carter

stated

the

For instance,

following

during

legislative debate on the Act:
We need to do something to get these people [to]
recognize that there’s another way of living, you know.
I wish there was something we could do to make [erotic
dancers] go to church or something.
(Rec. Doc. 16-1 at 17.)

Additionally, Plaintiffs point to actions

by some Louisiana legislators that suggest a lack of concern about
human trafficking or other secondary effects.

For instance,

Representative Kenny Havard proposed an amendment to the Act that
would have required erotic dancers to be no older than twentyeight years old and weigh no more than 160 pounds.
9 at 2.)

(Rec. Doc. 16-

Also, when Representative Chad Brown voiced his concerns

at the podium about the bill that would eventually became Act No.
395, other legislators approached the podium to leave dollar bills
on it. Id. at 33. Plaintiffs point these antics out to demonstrate
that multiple members of the Louisiana legislature did not take
passage of Act No. 395 seriously and they were not motivated by a
desire to end human trafficking. 6

6

Plaintiffs also direct the Court’s attention to the following remarks made by
Representative Beryl Amedee:

19

These incidents suggest that at least some members of the
Louisiana legislature were not focused solely on the secondary
effect of human trafficking while debating the bill that eventually
became Act No. 395.
an

empirical

legislature,

Nevertheless, the “appropriate focus is not

enquiry
but

into

rather

the

the

actual

existence

intent
or

of

not

the
of

a

enacting
current

governmental interest in the service of which the challenged
application of the statute may be constitutional.”

J&B Entm’t,

Inc., 152 F.3d at 372 (quoting Barnes, 501 U.S. at 582 (Souter,
J., concurring)).

Thus, Act No. 395’s constitutional validity is

not compromised even if some members of the Louisiana legislature
advocating for its enactment did so for reasons other than to curb
the

secondary

effect

of

human

trafficking.

Furthermore,

Representative Walt Leger, who introduced Act No. 395 in the
Louisiana

House

of

Representatives,

stated

that

the

Act

was

prompted by the ATC’s Operation Trick or Treat investigation,
noting

that

adult

entertainment

clubs

are

“haven[s]

for

Now I know a lot of people in the room are thinking of their
daughters, their younger sisters, perhaps, and they’re thinking,
“well I don’t want my daughter doing that.” But think about the
girls who do these jobs, who don’t have a dad, who don’t have a big
brother, who would say “I really don’t want you doing that for a
living, I don’t want you in that environment.” . . . [Act No. 395
is] about trying to protect people from being in environments where
they’re going to be taken advantage of
(Rec. Doc. 16-1 at 17.) Plaintiffs argue that these comments demonstrate a
paternalistic motivation on the part of the Louisiana legislature. But this
statement by Representative Amedee explicitly articulates a desire to protect
vulnerable people from being preyed upon. Such a concern is in line with a
goal of reducing human trafficking.

20

trafficking” and places where adults under the age of twenty-one
are preyed upon.
question

that

(Rec. Doc. 47 at 22.)

reducing

human

Thus, there is little

trafficking

was

an

important

motivation behind passing Act No. 395.
In Essence, Inc. v. City of Federal Heights, the Tenth Circuit
analyzed the constitutionality of a statute similar to Act No.
395.

285 F.3d 1272, 1284 (10th Cir. 2002).

The regulation in

Essence was a city ordinance making it unlawful “for any person
under twenty-one (21) years of age to be upon the premises of any
adult entertainment establishment which offers live nude dancing.”
Id. at 1278 n.5.

The Tenth Circuit applied the O’Brien test to

the ordinance and held that the ordinance failed intermediate
scrutiny.
Plaintiffs, for good reason, repeatedly refer to Essence.
However, significant distinctions exist between Essence and the
instant case.

In Essence, the city produced “undisputed evidence

establishing the existence of harmful secondary effects of nude
dancing,” so the court held that the city had demonstrated a
substantial

or

important

government

interest.

Id.

at

1284.

However, the city failed to “present any evidence that those
younger than twenty-one are any more susceptible to those harmful
effects.”

Id. at 1284 n.10.

Although the city attempted to rely

upon the affidavit of a former erotic dancer to demonstrate that
its regulation would further its interest in combating secondary
21

effects, the city failed to timely offer this affidavit.
1288.

Id. at

Instead, the city presented the former erotic dancer’s

affidavit on the day of oral argument on cross-motions for summary
judgment, nearly six months after the city filed its motion for
summary judgment. Id. The district court denied the city’s motion
to supplement its reply brief with the affidavit.

Id.

The Tenth

Circuit found that the district court did not abuse its discretion
when

it

refused

to

consider

the

untimely

affidavit.

Id.

Nevertheless, the court noted that the affidavit tended to prove
that

the

age

restriction

secondary effect. 7
restriction

will

Id.
only

would

be

effective

at

reducing

the

The upshot of Essence is that an age
satisfy

O’Brien

if

the

government

demonstrates that “its interest in protecting those younger than
twenty-one is substantial.”

Id. at 1284 n.10.

Here, the State

provides enough evidence to support the conclusion that it has a
substantial interest in protecting women under the age of twentyone from the threat of human trafficking.
Plaintiffs also argue that Act No. 395 fails to further the
substantial

government

interest

in

curbing

secondary

effects.

Plaintiffs argue that Act No. 395 puts women ages eighteen to
twenty in even greater danger of victimization because it removes
employment opportunities currently available to this population

7

In Essence, the secondary effect at issue was underage drinking.
285 F.3d at 1288.

22

See Essence,

and may increase the likelihood that young women fall prey to pimps
on

the

streets

of

New

Orleans

(Rec.

Doc.

16-1

at

17-18.)

Additionally, Plaintiffs argue that the State cannot point to any
evidence supporting the notion that banning eighteen to twenty
year-olds

from

trafficking.
These

nude

dancing

will

reduce

the

risk

of

human

the

wrong

Id.

arguments

must

fail

because

they

apply

standard for determining whether Act No. 395 furthers a government
interest.
that

Act

The State is not required to provide empirical data
No.

395

will

actually

succeed

in

curbing

secondary

effects, “at least ‘not without actual and convincing evidence
from plaintiffs to the contrary.’”

Baby Dolls Topless Saloons,

Inc., 295 F.3d at 481 (quoting Alameda Books, 535 U.S. at 439
(plurality opinion)); see also Richland Bookmart, Inc. v. Knox
Cty., 555 F.3d 512, 524 (6th Cir. 2009) (“Nor are local governments
required to demonstrate empirically that its proposed regulations
will or are likely to successfully ameliorate adverse secondary
effects.”)

State legislatures have the reasonable opportunity to

experiment

with

solutions

to

ameliorate

secondary

effects

of

erotic dancing. See id. Act No. 395 is an attempt by the Louisiana
legislature to do just that: to curb human trafficking.

The

Louisiana legislature had a reasonable basis for believing that
human trafficking is a secondary effect of erotic dancing when it
passed Act No. 395, and the State is not required to prove that
23

the Act will eradicate this problem.

Plaintiffs have not provided

“actual and convincing evidence” that Act No. 395 will fail to
curb the problem of human trafficking.

Accordingly, the second

prong of O’Brien is satisfied.
ii.
Even

Restriction on speech is greater than essential
when

the

government’s

purpose

is

legitimate

and

substantial, “that purpose cannot be pursued by means that broadly
stifle fundamental personal liberties when the end can be more
narrowly achieved.”

Legend Night Club v. Miller, 637 F.3d 291,

299 (4th Cir. 2011) (quoting Shelton v. Tucker, 364 U.S. 479, 488
(1960)).

The fourth prong of the O’Brien test requires that a

regulation “of protected speech must be narrowly tailored to serve
the government’s legitimate, content-neutral interests but [] need
not be the least restrictive or least intrusive means of doing
so.”

Ward v. Rock Against Racism, 491 U.S. 781, 798 (1989).

A

regulation does not fail the fourth prong of O’Brien “simply
because there is some imaginable alternative that might be less
burdensome on speech.”
367 (5th Cir. 2002)

LLEH, Inc. v. Wichita Cty., 289 F.3d 358,
Further, “the validity of such regulations

does not turn on a judge’s agreement” that the regulation is the
most

appropriate

method

for

promoting

significant

government

interests, “[n]or does it turn on the degree to which those
interests should be promoted.”

Id.

A content-neutral regulation

that promotes a substantial government interest is permissible so
24

long as the government interest “would be achieved less effectively
absent the regulation.”

Id. (quoting United States v. Albertini,

472 U.S. 675, 689 (1985)).
However, the overbreadth doctrine of the First Amendment
permits

a

facial

challenge

when

“a

substantial

number

of

[a

statute’s] applications are unconstitutional, judged in relation
to the statute’s plainly legitimate sweep.”

United States v.

Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State Grange
v.

Washington

(2008)).

State

Republican

Party,

552

U.S.

442,

449

n.6

Plaintiffs make such a challenge here, arguing that Act

No. 395 bans more expressive conduct than is constitutionally
permissible to further the Louisiana legislature’s substantial
governmental interest in reducing secondary effects.

Therefore,

the Court must determine whether Act No. 395 bans nudity in
alcohol-serving

establishments

outside

its

plainly

legitimate

sweep.
“The

overbreadth

doctrine

prohibits

the

Government

from

banning unprotected speech if a substantial amount of protected
speech is prohibited or chilled in the process.”
Speech Coalition, 535 U.S. 234, 237 (2002).

Ashcroft v. Free

To strike a statute

down as facially overbroad, there must exist “a realistic danger
that the statute itself will significantly compromise recognized
First Amendment protections of parties not before the Court.”
Hersh v. United States, 553 F.3d 743, 762 (5th Cir. 2008) (quoting
25

City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 802 (1984)).

As a result, facial challenges pursuant to the

overbreadth doctrine should be granted “sparingly and only as a
last resort.”

Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973).

“[W]here conduct and not merely speech is involved, . . . the overbreadth of a statute must not only be real, but substantial as
well.”

Baby Dolls, 295 F.3d 471, 482 (5th Cir. 2011) (quoting

Broadrick, 413 U.S. at 615); see also Virginia v. Hicks, 539 U.S.
113,

124

(2003)

‘chilling’

(“[T]he

protected

overbreadth

speech

doctrine’s

attenuates

as

concern
the

with

otherwise

unprotected behavior that it forbids the state to sanction moves
from pure speech toward conduct.”) (internal citations omitted).
To avoid the “total judicial abrogation of even the legitimate
regulation at the core of [an] overbroad statute,” courts should
construe a statute narrowly as long as it is fairly susceptible to
a limiting construction.

United States v. Wallington, 889 F.2d

573, 576 (5th Cir. 1989).

Thus, where a “literal reading of the

text

of

[a

construction,”

statute]
the

could

Fifth

support

Circuit

has

[]

a

seemingly

“search[ed]

evidence” to save the statute from infirmity.

Id.

for

absurd
other

However, the

First Amendment “does not leave us at the mercy of noblesse oblige.
We would not uphold an unconstitutional statute merely because the
Government promised to use it responsibly.”

Stevens, 559 U.S. at

480. The Court should avoid making a “frantic attempt to rescue”
26

a statute that fails to conform to constitutional requirements
unless it is readily susceptible to a limiting construction.
Serafine v. Branaman, 810 F.3d 354, 369 (5th Cir. 2016) (quoting
Stevens, 559 U.S. at 481).
Plaintiffs argue that Act No. 395 is facially overbroad
because it prohibits all adults under the age of twenty-one from
engaging in nudity in establishments serving alcohol, irrespective
of the reason for the nudity.

(Rec. Doc. 16-1 at 21.)

For

instance, Plaintiffs argue that Act No. 395 would prohibit eighteen
to twenty year-old actors from appearing in a theatric performance
requiring nudity if the venue served alcohol.

No evidence has

been presented here that nudity in a theater or ballet production
would

heighten

the

risk

of

human

trafficking,

and

such

a

restriction would result in protected speech being swept up by Act
No. 395’s breadth.

The State responds that Act No. 395 is not

overbroad, particularly because Plaintiffs have not demonstrated
a realistic danger that recognized First Amendment protections
would be compromised nor presented evidence that there are a
substantial number of instances where the law cannot be applied
constitutionally. (Rec. Doc. 49 at 5.)

The State also argues that

Act No. 395 is susceptible to a limiting construction because
Commissioner Marine-Lombard interprets the Act as applying only to
“strip

clubs,

topless

bars,

and

27

similar

adult

entertainment

venues,”

and

performances.

not

to

ballets,

theaters,

or

other

mainstream

(Rec. Doc. 49 at 6.)

“The first step in overbreadth analysis is to construe the
challenged statute; it is impossible to determine whether a statute
reaches too far without first knowing what the statute covers.”
United States v. Williams, 553 U.S. 285, 293 (2008).

Here, Act

No. 395 states, inter alia, that “entertainers whose breasts or
buttocks are exposed to view . . . shall be twenty-one years of
age.”

(Rec. Doc. 16-1 at 21.)

As described above, the State

emphasizes in its briefing that Act No. 395 is designed to address
the secondary effects of nude erotic dancing.

It is clear from

that briefing that Act No. 395 is specifically targeted at strip
clubs and adult entertainment venues.

Nevertheless, Act No. 395

was written in such a way as to prohibit any type of nudity by
eighteen to twenty year-olds in establishments serving alcohol,
whether in an adult entertainment venue, a ballet, or a play.
The Fourth Circuit addressed the overbreadth doctrine in
Legend Night Club v. Miller, 637 F.3d 291 (4th Cir. 2011).

The

regulation at issue in Miller prohibited nudity and certain sexual
behavior in establishments licensed to sell alcohol.

Id. at 295.

In particular, employees of alcohol-serving establishments were
precluded from “expos[ing] to view any portion of the female breast
below the top of the areola or any portion of the pubic hair, anus,
cleft of the buttocks, vulva or genitals.”
28

Id.

Additionally,

certain

behavior,

such

as

“[t]he

act

of

sexual

intercourse,

masturbation, sodomy, bestiality, oral copulation, flagellation”
or other illegal sexual acts were forbidden by the statute.

Id.

The plaintiffs argued that the statute was overbroad because it
proscribed

activity

that

included

ballet,

mainstream productions of artistic merit.

plays,

Id.

and

other

The court agreed

with the plaintiffs, stating:
These restrictions “have the same prohibitory effect on
much non-erotic dance—such as a ballet in which one
dancer touches another's buttock during a lift—and all
nudity
or
simulated
nudity,
however
brief,
in
productions with clear artistic merit—such as the
Pulitzer Prize winning play, Wit.”
Id. at 299–300 (quoting Geovani Carandola, Ltd. v. Bason, 303 F.3d
507, 516 (4th Cir. 2002) (“Carandola I”).

The court also found

the statute could not be preserved through a limiting construction.
Id. at 300.

It noted, “we must be careful not to encroach upon

the domain of a state legislature by rewriting a law to conform it
to

constitutional

requirements.”

Id.

(internal

citations

omitted).
Another circuit court case, cited by the State, actually tends
to support Plaintiffs’ argument.

In Curves, LLC v. Spalding Cty.,

Ga., 685 F.3d 1284 (11th Cir. 2012), the Eleventh Circuit addressed
an alcohol ordinance prohibiting nude dancing where alcohol was
sold.

The plaintiffs in Curves, LLC argued that the ordinance was

unconstitutionally overbroad.

Id. at 1290.

29

However, the Eleventh

Circuit disagreed, noting that the ordinance had a “mainstream
exception,”

which

made

the

ordinance

inapplicable

to

establishments, such as the theater, which may serve alcohol and
occasionally feature nudity. 8

Id. at 1291.

No such exception exists in Act No. 395 to prevent the Act
from prohibiting such “mainstream” nudity.

However, the State

includes an affidavit by Commissioner Marine-Lombard which states:
4. As I interpret Act No. 395, it does not apply to
venues such as theatres, ballets, or other mainstream
performance arts venues, whose primary purpose are
events or productions and not the service of alcohol,
and where the negative secondary effects would be
unlikely to occur.
To the best of my research and
knowledge, there are no known links between performances
at the ballet or stage plays and human trafficking,
prostitution and other negative secondary effects.
5. Additionally, performance arts venues are licensed or
permitted under a different set of regulations than
those applicable to bars or clubs.
Bars and clubs
receive a “Class AG (Bar) Permit” from the State.
Performance arts venues, however, receive an “AGE”
license,
meaning
they
have
different
rules
and
requirements that the regulations applying to bars and
clubs.
(Rec Doc. 47-24 at 1-2.)

8

The “mainstream
exceptions:

exception”

provided,

in

pertinent

part,

the

following

Nothing contained in paragraph (f) of Section 6–1071 shall apply to
the premises of any mainstream theater, which means a theater,
concert
hall,
museum,
educational
institution
or
similar
establishment which regularly features live performances which are
not distinguished or characterized by an emphasis on the depiction,
display, or description or the featuring of ‘specified anatomical
areas' or ‘specified sexual activities' in that the depiction,
display, description or featuring is incidental to the primary
purpose of any performance.
Curves, LLC, 685 F.3d at 1291 n.10.

30

Plaintiffs have demonstrated a likelihood of success on their
overbreadth claim because there is little doubt that Act No. 395
sweeps up a fair amount of constitutionally protected speech.
Although overbreadth protections are more limited for conduct than
speech, Act No. 395 still violates the First Amendment because it
proscribes

nudity

for

women

younger

than

twenty-one

in

more

settings than those where the risk of human trafficking is present.
See Hicks, 539 U.S. at 118-19. Act No. 395 could result in eighteen
to twenty year-olds being precluded from participating in theater
or similar artistic productions if such participation entails
nudity.
the

Commissioner Marine-Lombard’s affidavit does not change

result

because

first,

she

will

not

always

be

the

ATC

Commissioner and second, it is not the Court’s role to rely on the
interpretation of an enforcement agency when determining whether
a statute is constitutional.
The

next

step

is

See Stevens, 559 U.S. at 481.

to

determine

susceptible to a limiting construction.

whether

Act

No.

395

is

As discussed above, the

Fifth Circuit has very recently weighed in on this subject in
Serafine v. Branaman, 810 F.3d 354, 369 (5th Cir. 2016).
Serafine

court

declined

to

construe

an

overly

broad

The

statute

narrowly, and there is reason to believe the court would come to
the same conclusion here.
overbroad

statute]

an

See id. at 369 (“We decline to give [an
additional

extra-textual

construction in a frantic attempt to rescue it.”)
31

limiting

This Act, as

written, sweeps up too much protected speech to pass constitutional
muster. 9
c. Vagueness
A law may be unconstitutionally vague for either of two
independent reasons.

Fairchild v. Liberty Indep. Sch. Dist., 597

F.3d 747, 761 (5th Cir. 2010).

First, a law is vague when “people

of common intelligence must necessarily guess at its meaning and
differ

as

to

its

application.”

Int’l

Soc’y

for

Krishna

Consciousness v. Eaves, 601 F.2d 809, 830 (5th Cir. 1979) (internal
citations omitted).

Second, a law is vague when it “encourages

arbitrary and discriminatory enforcement.”
U.S. 703, 732 (2000).

Hill v. Colorado, 530

Either way, courts are to strike down laws

that fail to sufficiently “define the line between legal and
illegal conduct.”

Munn v. City of Ocean Springs, Miss., 763 F.3d

437, 439 (5th Cir. 2014).

Furthermore, “[w]here a statute’s

literal scope . . . is capable of reaching expression sheltered by
the First Amendment, the [vagueness] doctrine demands a greater

9 The Court is aware of a similar case where the Sixth Circuit came to a
different conclusion. In J.L. Spoons, Inc. v. Dragani, 538 F.3d 379 (6th Cir.
2008), the Sixth Circuit addressed an Ohio liquor regulation that prohibited
any holder of an alcohol permit from allowing anyone on her premises from
appearing in a state of “nudity” or from “engag[ing] in sexual activity.” Id.
The liquor regulation also defined nudity and sexual activity. Id. The district
court concluded that the regulation might result in theater productions being
precluded from displaying nudity. Id. at 384. But the Sixth Circuit noted
that these productions could simply be displayed in places where alcohol would
not be served or by performers wearing a G-string and pasties.
Id.
Additionally, the court distinguished between impermissible applications of the
regulation being “conceivable” versus being “likely.” Id. The court stated
“any arguable impermissible application of the statute to citizens engaged in
artistic expression amounts to no more than a fraction of [the statute’s]
reach.” Id. at 385.

32

degree of specificity than in other contexts.”

Cispes v. Fed.

Bureau of Investigation, 770 F.2d 468, 475 (5th Cir. 1985) (quoting
Smith v. Goguen, 415 U.S. 566, 573 (1974)).
Plaintiffs argue that Act No. 395 is unconstitutionally vague
in violation of the First and Fourteenth Amendment to the United
States

Constitution

and

Constitution of 1974.

Article

I,

§

2

of

the

Louisiana

In particular, Plaintiffs argue that the

phrases “breasts or buttocks are exposed to view” in the Act fail
to provide sufficient guidance as to how they should be interpreted
and invite discretionary and arbitrary enforcement.
at 12.)

(Rec. Doc. 1

The State responds that Plaintiffs may not challenge Act

No. 395 for vagueness because their conduct is clearly captured by
the Act.

(Rec. Doc. 49 at 7-8.)

The State also argues that the

Act is not vague because a common sense reading of it shows that
the law is adequately precise.

Id. at 8.

Finally, the State notes

that “breasts or buttocks are exposed” has been a part of both
statutes

prior

to

passage

of

Act

No.

395,

and

argues

that

Plaintiffs have failed to demonstrate that the Act has led to
confusion at any time before now.

Id. at 9.

The first question is whether Plaintiffs have standing to
bring a vagueness challenge.

“One to whose conduct a statute

clearly applies may not successfully challenge it for vagueness.”
Parker v. Levy, 417 U.S. 733, 756 (1974); see also United States
v. Burke, 577 Fed. App’x 338, 340 (5th Cir. 2014) (“Burke cannot
33

challenge the constitutionality of § 922(a)(1)(A) for vagueness,
because

his

statute.”)

conduct

was

unquestionably

prohibited

by

the

Two Plaintiffs, Jane Doe II and Jane Doe III, argue

that Act No. 395’s vague language has left them confused about
precisely what attire they must wear as “shot girls.”
16-1 at 23.)

(Rec. Doc.

However, the attire for shot girls is covered by a

completely different subsection of the statute than that which was
amended by Act No. 395.

Id.

Act No. 395 amended subsection

26:90(E), which governs entertainers who expose their breasts and
buttocks.

(Rec. Doc. 49 at 8.)

Shot girls are covered by

subsection 26:90(B)(1), 10 which covers the “sale or service of
alcoholic beverages,” and which is not challenged by Plaintiffs
here.

La. Rev. Stat. § 26:90(B)(1).

Accordingly, Janes Doe II

and III lack standing to bring a vagueness claim on Act No. 395 by
virtue of their current employment as shot girls who sell alcohol.
However, Plaintiffs also argue that Act No. 395 fails to
precisely define the phrase “breasts or buttocks are exposed to
view,” and therefore leads to confusion about how much of an erotic
dancer’s buttocks or breasts must be “in view” to trigger the Act.

10

Louisiana Revised Statute 26:90(B)(1) states that “Employment or use of any
person in the sale or service of alcoholic beverages in or upon the licensed
premises while such person is unclothed or in such attire, costume, or clothing
as to expose to view any portion of the female breast below the top of the
areola or of any portion of the pubic hair, anus, cleft of the buttocks, vulva,
or genitals.”

34

(Rec. Doc. 16-1 at 22.)

The State argues that a common sense

reading of the law shows that it is adequately precise.

(Rec.

Doc. 49 at 8.)
Neither party directs the Court to authority that would help
determine whether Act No. 395’s reference to “breasts or buttocks
are exposed to view” is unconstitutionally vague. The State refers
to a Virginia Supreme Court case holding that the word “buttocks”
was not unconstitutionally vague.

See Wayside Rest. v. City of

Virginia Beach, 208 S.E.2d 51, 52 (Va. 1974). However, the statute
at issue in Wayside Restaurant stated:
As used in this Ordinance ‘state of nudity’ means a state
of undress so as to expose the human male or female
genitals, pubic area or buttocks with less than a fully
opaque covering, or the showing of the female breast
with less than a fully opaque covering of any portion
thereof below the top of the nipple.
Id. at 52 n.1.

The definition in Wayside Restaurant is much more

descriptive than that in Act No. 395, especially with respect to
its definition of the naked breast.
It is also noteworthy that Louisiana Revised Statute 26:90,
the

very

statute

that

Act

No.

395

amends,

contains

its

own

definition of nudity in a different subsection of the statute that
is more descriptive than the newly revised Louisiana Revised
Statute 26:90(E).

For instance, as described above, subsection

26:90(B)(1) makes reference to the exposure of “any portion of the
female breast below the top of the areola . . . .”

35

Thus, there is

an

inconsistency

constitute

the

even
nude

within

section

breast.

At

26:90

this

about

stage

in

what

might

litigation,

Plaintiffs have demonstrated a likelihood of success on their
vagueness challenge.
2. Threat of Irreparable Harm
“It is [] well-established that an injury is irreparable only
if

it

cannot

be

undone

through

monetary

remedies.”

Dennis

Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir.
2012) (internal citations omitted). Thus, when a plaintiff’s “only
alleged harm can be obviated by monetary relief, it does not
constitute

the

‘irreparable’

injury

necessary

to

extraordinary relief of a preliminary injunction.”

obtain

Id.

the

The State

argues that Plaintiffs’ complaint focuses entirely on the economic
ramifications

of

Act

No.

395,

demonstrate irreparable harm.

and

therefore

has

(Rec. Doc. 49 at 23-24.)

failed

to

The State

notes that Janes Doe II and III allege their incomes have decreased
by more than fifty percent as a result of Act No. 395.
also Rec. Doc. 16-1 at 3-5.)

Id.; (see

The State acknowledges that Jane Doe

I alleges that she “enjoys expressing herself through dancing,”
but

also

points

out

that

even

Jane

Doe

I

appreciates

the

flexibility and financial means that erotic dancing provides her.
(Rec. Doc. 49 at 24); (see also Rec. Doc. 16-1. at 5.) Accordingly,
the State argues that Plaintiffs are more concerned about the

36

“suppression of their pay check rather than the suppression of
their rights guaranteed under the First Amendment.”

Id.

The Supreme Court has expressly stated that “[t]he loss of
First

Amendment

unquestionably

freedoms,

for

constitutes

even

minimal

irreparable

Burns, 427 U.S. 347, 373 (1976).

periods

injury.”

of

time,

Elrod

v.

There is no dispute here that

Plaintiffs challenge Act No. 395 on First Amendment grounds and
claim a loss of First Amendment freedoms.
becomes

whether

financially

or

Act
if

it

No.

395

Therefore, the question

primarily

inhibits

affects

Plaintiffs’

Plaintiffs

First

Amendment

protections.
The Tenth Circuit considers the “specific character” of the
alleged

First

Amendment

violation

when

appropriateness of a preliminary injunction.

determining

the

Heideman v. S. Salt

Lake City, 348 F.3d 1182, 1190 (10th Cir. 2003).

In Heideman, the

Tenth Circuit addressed a motion for preliminary injunction where
the

plaintiffs

challenged

the

constitutionality

of

a

city

ordinance prohibiting dancers in a sexually oriented business from
dancing completely nude.

Id.

The Heideman court first noted that

the Supreme Court has found that requiring dancers to wear Gstrings and pasties “is a minimal restriction” upon First Amendment
rights.

Id. (quoting Pap’s A.M., 529 U.S. at 301).

However, the

Heideman court observed that “to say that a harm is ‘minimal’ is
not to say that it is nonexistent.”
37

Id.

Because First Amendment

violations

are

handled

“gingerly,”

the

court

held

that

the

irreparable harm element “tip[ped] slightly in favor” of the
plaintiffs.

Id.; see also Threesome Entm’t v. Strittmather, 4 F.

Supp. 2d 710, 716-17 (N.D. Ohio 1998) (holding that the operator
of

cabaret

satisfied

the

irreparable

harm

standard

when

the

ordinance prohibited his ability to convey artistic and erotic
message through the erotic dancers who worked at the cabaret);
Brownell

v.

City

of

Rochester,

190

F.

Supp.

2d

472,

483-84

(W.D.N.Y. 2001) (same result when owners of a sexually oriented
business sought preliminary injunction to stop enforcement of an
ordinance regulating sexually oriented businesses).
On the other hand, one district court in this Circuit refused
to grant a preliminary injunction to enjoin a similar law because
it found the plaintiffs were not irreparably harmed.

DFW Vending,

Inc. v. Jefferson County, Tex., 991 F. Supp. 578 (E.D. Tex. 1998).
In that case, Jefferson County, Texas passed an ordinance requiring
that nude dancers be separated by at least six feet from patrons,
and also prohibited the consumption of alcohol on the premises by
nude dancers and other employees at the venues.

Id. at 586.

Although the court acknowledged that the loss of First Amendment
rights for even minimal period may constitute irreparable injury,
it “doubt[ed] that plaintiffs w[ould] suffer any deprivation of
First Amendment rights.”

Id. at 597.

Additionally, the court

found that the “plaintiffs' arguments reveal the true substance of
38

their battle; economic success . . . .”

Id.

“Because any loss in

business or tips is easily measurable and compensable by recovery
of

damages,

and

plaintiffs

have

failed

to

assert

any

non-

compensable injuries,” the court held that the plaintiffs failed
to establish irreparable injury.

Id.

The Court is persuaded by the logic espoused by the Tenth
Circuit in Heideman. Plaintiffs in the instant suit have alleged
a First Amendment violation, which the Court takes seriously.
Thus, the threat of irreparable harm requirement has been met.
3. Balance of Harms
Plaintiffs have demonstrated that the threatened harm to them
outweighs

any

possible

harm

to

the

State.

Violation

of

a

constitutional right is a serious harm, and Plaintiffs will be
denied First Amendment freedoms if Act No. 395 is enforced.

Here,

the Court has found that there is a threat Plaintiffs will suffer
irreparable harm by the enforcement of Act No. 395.

In such a

case, the party opposing the injunctive relief must “present
powerful evidence of harm to its interests” in order to outweigh
the threatened harm.

See Opulent Life Church v. City of Holly

Springs, Miss., 697 F.3d 279, 297 (5th Cir. 2012).
is unable to make such a showing.

The State here

The State notes that enjoining

the enforcement of a statute causes it to “suffer the irreparable
harm of denying the public interest in the enforcement of laws.”
See Monumental Task Committee, Inc. v. Foxx, 157 F. Supp. 3d 573,
39

605 (2016) (quoting Planned Parenthood of Greater Tex. Surgical
Health Servs. V. Abbott, 734 F.3d 406, 419 (5th Cir. 2013).
Nevertheless, Plaintiffs and other eighteen to twenty year-olds in
Louisiana stand to suffer a greater harm by the implementation of
Act No. 395 because First Amendment rights to free expression are
at risk.

The State, on the other hand, may utilize other methods

to reduce the secondary effects of nude erotic dancing until the
Court can fully determine the constitutionality of Act No. 395.
4. Public Interest
Finally,

Plaintiffs

have

established

that

injunction will not disserve the public interest.

a

preliminary

Plaintiffs have

demonstrated a likelihood of success on their claim that Act No.
395 violates the First Amendment on overbreadth and vagueness
grounds and, therefore, it is appropriate to grant a preliminary
injunction.

“[I]njunctions protecting First Amendment freedoms

are always in the public interest.”

Texans for Free Enterprise v.

Texas Ethics Commission, 732 F.3d 535, 539 (5th Cir. 2013).

The

public interest will be best served by enjoining the effect of Act
No. 395 until the Court can conclusively determine whether the Act
withstands constitutional scrutiny.

See Wexler v. City of New

Orleans, 267 F. Supp. 2d 559, 568-69 (E.D. La. 2003).

40

CONCLUSION
Accordingly,
IT

IS

ORDERED

that

Plaintiffs’

Motion

for

Preliminary

Injunction is GRANTED.
IT IS FURTHER ORDERED that Defendant Juana Marine-Lombard, in
her official capacity as Commissioner, Louisiana Office of Alcohol
and Tobacco Control, is ENJOINED from enforcing or causing any
other state actor to enforce Act No. 395 anywhere within the State
of Louisiana pending further Order of this Court.
New Orleans, Louisiana, this 8th day of March, 2017.

____________________________
CARL J. BARBIER
UNITED STATES DISTRICT JUDGE

41