Cinemapub v. Petilos et al
MEMORANDUM DECISION and ORDER granting #56 Motion for Summary Judgment Granting Permanent Injunction and Declaratory Relief; denying #57 Defendants' Motion for Summary Judgment; finding as moot #69 Motion to Reconsider. Signed by Judge David Nuffer on 8/31/2017. (blh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION
CINEMA PUB, LLC, d/b/a BREWVIES,
SALVADOR D. PETILOS, Director; CADE
MEIER, Deputy Director; NINA
MCDERMOTT, Director of Compliance,
Licensing Enforcement, Utah Department of
Alcoholic Beverage Control, in their official
capacities; JOHN T. NIELSEN, Chairman;
JEFFREY WRIGHT; KATHLEEN
MCCONKIE COLLINWOOD; OLIVIA
VELA AGRAZ; STEVEN B. BATEMAN; S.
NEAL BERUBE; AMANDA SMITH,
Members, Utah Alcoholic Beverage Control
Commission, in their official capacities,
• GRANTING  MOTION FOR
• DENYING  MOTION FOR
SUMMARY JUDGMENT; AND
• FINDING MOOT  MOTION TO
Case No. 2:16-cv-00318-DN
District Judge David Nuffer
Cinema Pub (Brewvies) is a mainstream movie theater that showed the movie Deadpool.
The defendants (collectively “the State”) brought an administrative enforcement action against
Brewvies for violating subsection 7 of the Utah Code § 32B-1-504 (Section 7). In relevant part,
Section 32B-1-504 states:
The following attire and conduct on premises or at an event regulated by the
commission under this title are considered contrary to the public health, peace,
safety, welfare, and morals, and are prohibited: . . . .
(7) showing a film, still picture, electronic reproduction, or other visual
(a) an act or simulated act of:
(i) sexual intercourse;
(v) oral copulation;
(vi) flagellation; or
(vii) a sexual act that is prohibited by Utah law;
(b) a person being touched, caressed, or fondled on the breast, buttocks,
anus, or genitals;
(c) a scene wherein an artificial device or inanimate object is employed to
depict, or a drawing is employed to portray, an act prohibited by this
(d) a scene wherein a person displays the genitals or anus.
Brewvies seeks declaratory and injunctive relief from the State’s enforcement of Section
Brewvies (Brewvies Motion) and the State (State Motion) both move for summary
judgment. 2 Both respond in opposition to the other’s motion. 3 And both reply in support of their
own motion. 4 Additionally, Brewvies filed a motion to reconsider (Motion to Reconsider) 5 a
memorandum decision and order that granted the State’s motion to exclude some of Brewvies
experts and denied Brewvies’s motion to exclude the State’s expert, Dr. George. 6 The State
responded in opposition. 7 Brewvies replied in support of that motion. 8
Amended Verfied [sic] Complaint for Declaratory and Injunctive Relief (Complaint), docket no. 54, filed March 2,
Motion for Summary Judgment Granting Permanent Injunction and Declaratory Relief and Supporting
Memorandum (Brewvies Motion), docket no. 56, filed March 4, 2017; Defendants’ Motion for Summary Judgment
and Supporting Memorandum (State Motion), docket no. 57, filed March 6, 2017.
Plaintiff’s Memorandum in Opposition to Defendants’ Motion for Summary Judgment (Brewvies Opposition),
docket no. 65, filed April 1, 2017; Defendants’ Memorandum in Opposition to Plaintiff’s Motion for Summary
Judgment (State Opposition), docket no. 66, filed April 3, 2017.
Reply Memorandum in Support of Plaintiff’s Motion for Summary Judgment Granting Permanent Injunction and
Declaratory Relief (Brewvies Reply), docket no. 67, filed April 14, 2017; Reply Memorandum in Support of
Defendants’ Motion for Summary Judgment (State Reply), docket no. 68, filed April 17, 2017.
Plaintiff’s Motion for Reconsideration of Memorandum Decision and Order Granting Defendants’ Motion to
Exclude Expert opinions and Denying Plaintiff’s Motion to Exclude Expert Testimony (Motion to Reconsider),
docket no. 69, field April 22, 2017.
Memorandum Decision and Order Granting  Defendants’ Motion to Exclude Expert Opinions and Denying
 Plaintiff’s Motion to Exclude Expert Testimony, docket no. 62, filed March 21, 2017.
Memorandum in Opposition to Plaintiff’s Motion for Reconsideration (Opposition to Motion to Reconsider),
docket no. 71, filed May 8, 2017.
Reply Memorandum in Support of Plaintiff’s Motion for Reconsideration of Memorandum Decision and order
Granting Defendants’ Motion to Exclude Expert Opinions and Denying Plaintiff’s Motion to Exclude Expert
Testimony, docket no. 73, filed May 20, 2017.
Generally, the State argues that Brewvies does not have a constitutional right to serve
beer while showing movies. Brewvies argues that Section 7 is a content-based restriction on
speech that fails strict scrutiny.
Section 7 is a content-based law. And assuming the State has a compelling interest, it
fails to show that Section 7 is the least restrictive means to further that interest. Therefore, the
State Motion is DENIED and Brewvies Motion is GRANTED. The Motion to Reconsider is
Table of Contents
Preliminary Issues ........................................................................................................................... 3
Brewvies made an as-applied challenge and a facial challenge. ............................ 3
Because secondary effects are irrelevant, the Motion to Reconsider is moot. ....... 5
Undisputed Facts ............................................................................................................................. 5
Standard of Review ....................................................................................................................... 11
Discussion ..................................................................................................................................... 11
Section 7 regulates protected speech. ................................................................... 12
Strict scrutiny applies to Section 7........................................................................ 13
The secondary effects doctrine does not apply to Brewvies. .................... 15
Because it is not clear whether Reed abrogated the secondary effects
doctrine, Reed should be applied narrowly. .............................................. 18
It is not necessary to consider the difference between secondary and
primary effects. ......................................................................................... 20
Section 7 fails strict scrutiny. ................................................................................ 20
Order ........................................................................................................................................... 27
1. Brewvies made an as-applied challenge and a facial challenge.
The State argues that Brewvies’s Complaint is limited to an as-applied challenge of
Section 7. The State also argues that Brewvies “did not plead [a facial challenge] in its
Complaint” and that Cinema Pub did not “request relief congruent with a facial challenge.” 9
State Reply at 9.
A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” 10 This statement must give the defendant “fair notice of what the . . .
claim is and the grounds upon which it rests.” 11 However, when a statute is challenged as
unconstitutional, determining whether the plaintiff has pleaded either an as-applied or facial
challenge depends on the potential remedies. If the potential remedies implicate both types of
challenges, the defendant has been given sufficient notice that both challenges are in play.
[T]he distinction between facial and as-applied challenges is not so well defined
that it has some automatic effect or that it must always control the pleadings and
disposition in every case involving a constitutional challenge. The distinction is
both instructive and necessary, for it goes to the breadth of the remedy employed
by the Court, not what must be pleaded in a complaint. 12
And even if the plaintiff thinks it only makes an as-applied challenge, “no general
categorical line bars a court from making broader pronouncements of invalidity.” 13 “The label is
not what matters.” 14
Brewvies’s first and only claim for relief seeks declaratory and injunctive relief against
past, present, and future enforcement of Section 7. 15 The potential remedies (declaratory and
injunctive relief) for that claim therefore include both types of challenges because past and
present enforcement springs from the application of the law, while a challenge to future
enforcement attacks all applications of the statute. Therefore, the State had fair notice that
Brewvies was bringing a facial challenge in addition to the as-applied challenge.
Fed. R. Civ. P. 8(a)(2).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Citizens United v. Federal Election Com’n, 558 U.S. 310, 331 (2010).
John Doe No. 1 v. Reed, 561 U.S. 186, 194 (2010).
Complaint ¶¶ 20–25.
2. Because secondary effects are irrelevant, the Motion to Reconsider is moot.
Though Brewvies argued convincingly that the prior order excluding Mr. Parker’s
opinion relating to secondary effects was incorrectly decided, 16 it is not necessary to reconsider
the order. As discussed below, 17 the secondary effects doctrine is not relevant. Therefore, it is
not necessary to revisit whether Mr. Parker’s or Dr. George’s opinions should or should not be
excluded. The Motion to Reconsider is MOOT.
UNDISPUTED FACTS 18
Brewvies shows only mainstream movies to its customers—movies rated from G
to R by the Motion Picture Association of America. Also, rarely, Brewvies shows documentary
films, or ski, outdoor, or skateboarding films, which are not rated and that are not in any way
pornographic or obscene. 19
Brewvies’s business model is to serve food and drinks, including alcoholic drinks,
soft drinks, and water, and to have customers be able to enjoy their food and drinks while
watching movies. The two theaters operated by Brewvies are designed and constructed so there
is a level plank that runs in front of every row of seats, where customers can set their food and
drinks while watching movies. Brewvies also holds special events, such as fund-raisers. The
business of Brewvies is selling food and beverages to its customers and providing mainstream
Motion to Reconsider at 4–13.
See Discussion Section 2.
The Undisputed Facts are drawn from the briefing, generally without alteration. Some facts listed in the parties’
briefing are omitted for relevance. And some are altered to remove characterization or other legal or factual glosses.
Brewvies Motion at 16; State Opposition at ix–x. The State does not dispute the facts in this paragraph. It only
states that these facts are not relevant. This does not create a genuine dispute. Subsequent paragraphs drawing
relevance objections will be deemed “undisputed.”
Brewvies Motion at 16–17 (undisputed).
Brewvies has a business license as a motion picture theater with Salt Lake City
and as a social club with the State of Utah Department of Alcoholic Beverage Control. 21
Brewvies has never had live nude or live semi-nude dancers, nor does it specialize
or focus on movies with sexual content. 22
Brewvies is not a business that focuses on sex. Rather, it shows movies that other
mainstream theaters show, the only difference being that Brewvies serves food (beyond the usual
theater fare of popcorn and candy) and beverages that include alcoholic drinks. 23
The movie Deadpool—which was the target of an investigation by three
undercover police officers with the Utah State Bureau of Investigation and the subject of a
Notice of Agency Action and a Division of Alcoholic and Beverage Control (DABC) threat of a
fine and the possible suspension or termination of Brewvies’s liquor license—is a critically
acclaimed film starring Ryan Reynolds and distributed by Fox. As of March 20, 2016, Deadpool
had grossed over $731 million worldwide, making it the highest grossing R-rated movie in the
history of film. At its height, it was playing in 3,856 movie theaters in the United States. As of
April 15, 2016, Deadpool was still showing in at least seven movie theaters in Northern Utah.
On May 6, 2016, after the filing of this lawsuit, Brewvies held a midnight showing of Deadpool
at a “First Amendment Celebration” and, because it was over capacity, had to turn away
approximately 200 people. 24
Licensing agreements, pursuant to which Brewvies shows films, forbid Brewvies
from making alterations or cuts of any kind to the films it shows. For instance, a licensing
Id. at 17 (undisputed).
Id. at 18 (undisputed).
Id. at 18–19 (undisputed).
agreement with Sony Pictures Classics, Inc. (“SPC”) provides as follows: “The Film, including
any trailers or rolling track SPC (or its agent) attaches to the Film, shall be exhibited on the
Screen during consecutive days during Exhibitor’s normal operating hours. Such exhibition shall
be without any cuts or alterations of any kind and without interruption, except what is necessary
for theater maintenance and entrance and exit of patrons.” 25
It would take significant time and resources for Brewvies to review in advance a
film for possible violations of Subsection 7. 26
In 2011, the DABC informed Brewvies of potential agency action because
Brewvies showed the R-rated movie The Hangover Part II, which violated Subsection 7. For
various reasons, Brewvies agreed to pay a fine of $1,627. 27
On July 1, 2015, a DABC representative, Defendant Margaret Hardie, wrote an
email to Brewvies owner Randall Miller informing him of potential agency action for showing
“at least” two movies that “would not be allowed to be shown in your theater due to nudity and
sexual content.” The only films being shown at Brewvies at that time were Magic Mike XXL and
Ted 2, neither of which were alleged to have been obscene. The DABC representative wrote:
“Please make sure you preview all movies you will be showing. This ensures we can keep you
from citations or law enforcement referring you for violations against your liquor license.” 28
After Brewvies was sanctioned by the DABC for screening The Hangover Part II,
legal counsel to the DABC, Sheila Page, suggested that Brewvies could simply give up its liquor
license and show movies without allowing customers to drink alcoholic beverages while
Id. at 25 (undisputed).
Id. at 26 (undisputed).
Id. at 26–27 (undisputed).
watching movies. In a letter to Brewvies’s former counsel, Ms. Page stated: “Brewvies has
chosen to meld the serving of alcohol and the showing of films. The management has the option
of being a motion picture theater without alcohol service.” Ms. Page also said that Brewvies’s
“recourse if they do not wish to conform to the current law is to approach the legislature about
changing the statute” and that she “would certainly encourage Brewvies to take the advice of
DABC compliance officers to screen films for possible illegal conduct.” 29
Between February 12, 2016, and March 24, 2016, Brewvies showed the movie
Deadpool on one of its screens. A friend of Sheila Page, the attorney at the Attorney General’s
Office who represents the DABC in enforcement proceedings, mentioned to Ms. Page that
Brewvies was showing Deadpool. Once Ms. Page received the information from her friend, she
sent an email to Defendant Margaret Hardie, who has been the DABC Compliance Officer
assigned to Brewvies since 2014. In her email to Ms. Hardie, dated February 22, 2016, Ms. Page
wrote: “I hate to bring this up, but it is just too blatant to ignore. Brewvies is showing Deadpool.
The reviews describe explicit sex scenes and male and female frontal nudity. I know some
people who have seen it, and they confirm that it is very raunchy amid the bloody violence.
Perhaps you should refer it to [the State Bureau of Investigation].” That email, which was the
only complaint received by the DABC about Brewvies showing Deadpool, triggered a referral to
the State Bureau of Investigation. 30
Three undercover officers with the State Bureau of Investigation went to
Brewvies on February 26, 2016, to watch the movie and report whether they believed there were
Id. at 27 (undisputed) (emphasis in original).
Id. at 28 (undisputed).
violations of the law. Two of those officers have seen Deadpool on their own and one, Sean
Cannon, had seen it twice before he saw it at Brewvies. 31
Officer Cannon submitted his written report, which described that in the movie a
man, Wade, and woman, Vanessa, got into a relationship and had “implied sexual contact during
numerous holidays.” He said Vanessa sodomized Wade in their bed. He also described Wade
getting into a fight, during which his clothes came off and he “shows full frontal nudity during
the fight scene.” Later there was a scene that “showed him simulating him [sic] masturbating in
his bed with a stuff [sic] animal (Unicorn).” Later, there was full frontal nudity of women
dancing at a strip club, where Wade had gone to speak with Vanessa. 32
Officer Bullock, also with the State Bureau of Investigation, joined with the other
two undercover officers to investigate the showing of Deadpool because it might have been in
violation of Utah law. He had seen Deadpool twice, once as an investigator at Brewvies and once
“personally” at another theater. 33
Officer Bullock’s report describes certain scenes of the movie in terms of the
prohibitions of Subsection 7. For instance, he states that the male and female characters were
“shown numerous times engaging in acts or simulated acts of sexual intercourse” and that the
male character “is shown on his back under bed sheets briefly engaged in masturbation or
simulated masturbation using a stuffed unicorn toy.” He also describes a scene where the woman
was wearing a leather bikini, with an imagined strap-on penis “that isn’t shown,” and “has her
groin area pressed against the man’s posterior,” and she tells him to relax as he is sweating and
grimacing. She then bends down and says, “Happy Women’s Rights Day” during what Officer
Id. at 28–29 (undisputed).
Id. at 29 (undisputed).
Id. at 29–30 (undisputed).
Bullock calls “the sodomy or simulated sodomy scene.” Officer Bullock also says that during
one sex scene, the male character fondled the woman’s bare breasts and, finally, during the
credits, Officer Bullock describes “a drawing of the main character (male) . . . ‘as he rides on the
back of a unicorn, he rubs its horn briefly until the horn shoots out rainbows (simulating
After the investigative report was received from the State Bureau of Investigation,
a determination was made that if there were a violation of Subsection 7, it would “be classified
as a grave violation which would trigger penalties of fines or suspensions,” so a Notice of
Agency Action was sent, and the matter was turned over by the DABC to the Attorney General’s
On April 11, 2016, Brewvies received a Notice of Agency Action (“Notice”)
signed by Defendant Nina McDermott on behalf of the DABC. The Notice alleged that Brewvies
had violated Utah’s alcoholic beverage control laws as follows: “On or about February 23, 2016,
Brewvies, a social club, showed a film, electronic reproduction, or other visual reproduction
depicting: (1) an act or simulated act of sodomy, bestiality, or oral copulation, and (2) a scene
wherein a person displayed their genitals in violation of Utah Code Section 32B-1-504(7)(a) and
The Notice states that Brewvies faces a penalty of a “10 day license suspension up
to a revocation of its club license and/or a $1,000 TO $25,000 fine.” It also states the DABC is
seeking administrative hearing costs. 37
Id. at 30–31 (undisputed).
Id. at 31 (undisputed).
Id. at 32 (undisputed).
The Defendant Commissioners of the Utah Alcoholic Beverage Control
Commission have rule-making and supervisory responsibilities relative to the enforcement of
Subsection 7 and make the ultimate decisions regarding enforcement and sanctions for violations
of that statute. 38
Hundreds of Utah liquor licensees provide televisions for their customers to
STANDARD OF REVIEW
Summary judgment is appropriate if “there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law.” 40 A factual dispute is genuine when “there is
sufficient evidence on each side so that a rational trier of fact could resolve the issue either way.” 41 In
determining whether there is a genuine dispute as to material fact, the court should “view the factual
record and draw all reasonable inferences therefrom most favorably to the nonmovant.” 42
The moving party “bears the initial burden of making a prima facie demonstration of the
absence of a genuine issue of material fact and entitlement to judgment as a matter of law.” 43
The First Amendment, which applies to government action at all levels, 44 affords basic
but fundamental protections. It states that the government “shall make no law . . . abridging the
Id. at 32–33 (undisputed).
Id. at 33; State Opposition at xxx. The State does not create a genuine dispute of fact.
Fed. R. Civ. P. 56(a).
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998).
Id. at 670–71.
See Everson v. Board of Ed. of Ewing Tp., 330 U.S. 1, 5 (1947) (“This is alleged to be a use of State power to
support church schools contrary to the prohibition of the First Amendment which the Fourteenth Amendment made
applicable to the states.”).
freedom of speech.” 45 The courts have construed this provision as broadly as it reads, protecting
almost all forms of communication. Offensive and disturbing speech are protected, along with
political debate, news media, and every day communication. The analytical framework for
challenges under this clause is generally two-part. 46 First, it is determined if the law regulates
speech protected by the First Amendment. 47 And second—if the law regulates protected
speech—it is determined if the law satisfies the requisite level of scrutiny. 48
1. Section 7 regulates protected speech.
Brewvies argues that Deadpool and the other “mainstream” movies it shows are
“constitutionally protected” speech. 49
“[A]s a general matter, the First Amendment means that government has no power to
restrict expression because of its message, its ideas, its subject matter, or its content.” 50 Motion
pictures fall within its ambit: “expression by means of motion pictures is included within the free
speech and free press guaranty of the First and Fourteenth Amendments.” 51
There are, however, “well-defined and narrowly limited classes of speech” that the First
Amendment does not protect. 52 These are the so-called exceptions to the general presumption
that the speech is protected. The five exceptions are:
U.S. Const. amend. I.
Unless the law applies to government-owned property. In which case, the court must also do a forum analysis. See
Cornelius v. NAACP Legal Defense and Educational Fund, Inc., 473 U.S. 788, 797 (1985).
Cornelius, 473 U.S. at 797.
Brewvies Motion at 49.
U.S. v. Stevens, 559 U.S. 460, 468 (2010).
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 502 (1952). See also Schad v. Borough of Mt. Ephraim, 452 U.S.
61, 65 (1981) (“Entertainment, as well as political and ideological speech, is protected; motion pictures, programs
broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First
Stevens, 559 U.S. at 468–69 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942)).
incitement; 56 and
speech integral to criminal conduct. 57
In the pleadings and summary judgment related papers, the State does not argue any
exception applies. Regarding Deadpool specifically, the State delineates its position:
“Defendants do not argue that the images in Deadpool are obscene as the term has been defined
by the courts. Neither do Defendants argue that Deadpool is pornography.” 58
Generally, Section 7 necessarily includes material within the full protective force of the
First Amendment. The State does not contend that the acts listed in Section 7 correspond with
any exception listed above. Presumably, something obscene 59 would violate Section 7, but
something (e.g., Deadpool) that violates Section 7 would not necessarily be obscene.
Section 7, therefore, acts against a broad swath of speech. Section 7, as applied by the
State, regulates Deadpool, which is protected speech. Facially, Section 7 regulates both protected
and unprotected speech.
2. Strict scrutiny applies to Section 7.
Because Section 7 regulates protected speech, the question is whether the State can
justify the infringement under the relevant test. There are three tests, all characterized as a level
Defendants’ Motion to Exclude Expert Opinions and Supporting Memorandum at 5, docket no. 44, filed January
See Roth v. U.S., 354 U.S. 476, 487 (1957) (“Obscene material is material which deals with sex in a manner
appealing to prurient interest.”).
of scrutiny: strict scrutiny, intermediate scrutiny, or rational basis review. On the two ends, strict
scrutiny is the most demanding standard and rational basis the least. 60 Brewvies argues that
Section 7 should be subject to strict scrutiny. 61 The State argues that a less exacting intermediate
scrutiny test applies because the purpose of Section 7 was to avoid negative secondary effects. 62
The Supreme Court has stated that a content-based law may be subjected to lower scrutiny if the
legislature’s purpose in enacting the law was not aimed at the content, “but rather at the
secondary effects [of that content] on the surrounding community, namely, at crime rates,
property values, and at the quality of the city’s neighborhoods.” 63
Brewvies makes numerous supporting arguments why strict scrutiny should apply. First,
Brewvies argues that strict scrutiny should apply because the secondary effects doctrine has only
been applied to a narrow class of businesses into which it does not fall. 64
Second, Brewvies argues that Reed v. Town of Gilbert, Arizona, 65 a recent Supreme
Court opinion, prevents courts from considering any motivating factor, such as reducing
secondary effects, to reduce scrutiny of a content-based statute to intermediate.
Third, Brewvies argues that the secondary effects doctrine should not apply because the
effects resulting from viewing the content Section 7 targets, and to which the State’s supporting
expert testimony relates, is primary, not secondary effects. The difference between secondary
and primary effects is relevant because “the lesser scrutiny afforded regulations targeting the
City of Renton v. Playtime Theatres Inc., 475 U.S. 41, 46–51 (1986).
Brewvies Motion at 51–52.
State Motion at 1–3.
City of Los Angeles v. Alameda Books, Inc., 535 U.S. 425, 434 (2002).
Brewvies Motion at 60–62.
135 S.Ct. 2218 (2015).
secondary effects of crime or declining property values ha[s] no application to content-based
regulations targeting the primary effects of protected speech.” 66
Brewvies is correct. Though there may be merit to each of Brewvies’s arguments, Section
7 is subject to strict scrutiny because the secondary effects doctrine has only been applied to
“regulations affecting physical purveyors of adult sexually explicit content.” 67 Brewvies does not
meet that description because it occasionally shows films that occasionally have sexual content,
and it is not primarily a business centered on explicit sexual activity.
a. The secondary effects doctrine does not apply to Brewvies.
In Free Speech Coalition, Inc. v. Attorney General United States, 68 the Third Circuit
reviewed the various contexts in which the Supreme Court has applied the secondary effects
doctrine and cautioned courts to avoid “expanding its [the secondary effect doctrine] application
beyond the only context to which the Supreme Court has ever applied it: regulations affecting
physical purveyors of adult sexually explicit content.” 69
Specifically, the Supreme Court has applied the secondary effects doctrine to the adult
oriented movie theater in City of Renton, which attempted to show “feature-length adult films”
that could be characterized “by an emphasis on matter depicting, describing or relating to”
explicit sexual activities. 70 The Supreme Court applied the doctrine to the erotic dancing
establishment in City of Erie v. Pap’s A.M., 71 which attempted to have “totally nude erotic
U.S. v. Playboy Entertainment Group, Inc., 529 U.S. 803, 815 (2000).
Free Speech Coalition, Inc. v. Attorney General United States, 825 F.3d 149, 161 (3d Cir. 2016).
825 F.3d 149 (3d Cir. 2016).
Id. at 161.
City of Renton, 475 U.S. at 44.
529 U.S. 277 (2000).
dancing performed by women.” 72 And finally, in City of Los Angeles v. Alameda Books, Inc., 73
the Supreme Court held that the city of Los Angeles could prevent multiple adult oriented
establishments from concentrating in one location in order to avoid negative secondary effects.
Brewvies is not an adult oriented establishment. Brewvies is no Playtime Theater. 74 It is
not the Pussy Cat. 75 Nor Kandyland, 76 or Teasers, 77 or the Cajun Club, 78 or Angels Sports Bar. 79
Brewvies does not focus on sex. 80 It shows the same movies that other, non-sexually oriented
movie theaters show but with alcohol. 81 It is not a statutorily defined sexually oriented
The State does not argue that Brewvies is an adult sexually oriented establishment. 83
Instead, it argues that if at any given point the content of an offending film is analogous to the
content of the adult films at issue in Renton, the secondary effects doctrine applies. 84 But the
secondary effects doctrine was not intended to protect neighborhoods from the effects of
momentary, episodic sexual displays that the enforcing agency does not consider obscene or
Id. at 284.
535 U.S. 425 (2002).
City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986).
Young v. American Mini Theatres, 427 U.S. 50 (1976).
City of Erie v. Pap’s A.M., 529 U.S. 277 (2000).
Gary v. City of Warner Robins, Georgia, 311 F.3d 1334 (11th Cir. 2002).
G.M. Enterprises, Inc. v. Town of St. Joseph, Wisconsin, 350 F.3d 631 (7th Cir. 2003).
Department of Alcoholic Beverages Control v. Alcoholic Beverage Control Appeals Bd., 99 Cal. App. 4th 880
(Cal. Ct. App. 2002).
Undisputed Facts ¶ 5.
See, e.g., Utah Code 1953 § 10-8-41.5(1)(f)(i) (“‘Sexually oriented business’ means a business at which any nude
or partially denuded individual, regardless of whether the nude or partially denuded individual is an employee of the
sexually oriented business or an independent contractor, performs any service for compensation.”).
Undisputed Facts ¶¶ 4–5.
State Reply at 7.
pornographic. It was intended to protect neighborhoods from the harmful effects of speech on the
fringes of First Amendment protection that defines a specific class of businesses, i.e., sexually
Additionally, the secondary effects doctrine has been applied almost exclusively in cases
involving zoning ordinances. The doctrine originated in a footnote of the Supreme Court’s
plurality decision in Young v. American Mini Theatres, Inc. 85 There the Court stated that the
facially content-based zoning ordinance would be subject to intermediate scrutiny and not strict
scrutiny because of the city’s “interest in the present and future character of its
neighborhoods.” 86 In City of Renton the Court decided that the facially content-based zoning
ordinance would be subject to intermediate and not strict scrutiny because of the city’s interest in
“preserving the quality of life in the community at large by preventing [adult] theaters from
locating in other areas,” which is “the essence of zoning.” 87 And in Alameda Books the facially
content-based law was subject to intermediate and not strict scrutiny because of the city’s interest
in avoiding a large concentration of adult-oriented businesses.
City of Erie v. Pap’s A.M. 88 is the one case not involving a zoning ordinance where the
Supreme Court applied the secondary effects doctrine. City of Erie, however, still involved a
“physical purveyor of adult sexually explicit content.” 89 Pap’s A.M. “operated a nude dancing
establishment in Erie.” 90 Pap’s challenged a public indecency ordinance. The Court held that
“the ordinance prohibiting public nudity is aimed at combating crime and other negative
427 U.S. 50, 71 n.34 (1976).
Id. at 72.
City of Renton, 475 U.S. at 54.
529 U.S. 277 (2000).
Free Speech Coalition, 825 F.3d at 161.
City of Erie, 529 U.S. at 283.
secondary effects caused by the presence of adult entertainment establishments . . . and not at
suppressing the erotic message conveyed by this type of nude dancing.” 91 In dissent, Justice
Stevens pointed out that this marked a departure from prior precedent: “[W]e have limited our
secondary effects cases to zoning.” 92
The State does not argue that Section 7 is a zoning law. 93 Instead, the State argues that
Section 7 is part of the State’s larger scheme for regulating alcohol. 94 The State cannot argue that
it has plenary power to control liquor licensing under the Twenty-first Amendment, 95 to the point
of obliterating First Amendment rights. That argument has been unequivocally rejected by the
Supreme Court. 96 And, as just discussed, the State’s argument that, in effect, it has an interest in
reducing intermittent secondary effects goes well beyond secondary effects case law. The
secondary effects doctrine, therefore, will not reduce the level of scrutiny in this case. Section 7
will be reviewed under strict scrutiny.
b. Because it is not clear whether Reed abrogated the secondary effects doctrine,
Reed should be applied narrowly.
In Reed, a case about sign placements, the Supreme Court stated that a law is contentbased—thus subject to strict scrutiny—if “on its face [the law] draws distinctions based on the
message a speaker conveys” or if it “cannot be justified without reference to the content of the
regulated speech.” 97 And later, “A law that is content based on its face is subject to strict scrutiny
Id. at 291.
Id. at 322 (Stevens J., dissenting).
Opposition to Motion to Reconsider at 5.
State Motion at 3–4.
See 44 Liquormart, Inc. v. Rhode Island Liquor Stores Association, 517 U.S. 484 (1996).
Reed, 135 S.Ct. at 2227 (internal quotation marks omitted).
regardless of the government’s benign motive, content-neutral justification, or lack of animus
toward the ideas contained in the regulated speech.” 98
Brewvies argues that after “Reed no ‘content-neutral justification’ (e.g., ‘secondary
effects’) can justify reducing the level of scrutiny.” 99 In other words, according to Brewvies,
under Reed, Section 7 is a content-based law regardless of the State’s alleged “benign motive” of
reducing or avoiding negative secondary effects. 100
But the secondary effects doctrine remains good law. As the Eleventh Circuit stated,
“There is no question that Reed has called into question the reasoning undergirding the
secondary-effects doctrine.” 101 Even so, Reed will not be applied here to eliminate consideration
of the secondary effects doctrine. The secondary effects doctrine does not apply for the reasons
already stated. 102 Until the Supreme Court expresses otherwise, Reed should be confined to laws
governing signage. Though the secondary effects doctrine was mentioned in Justice Kagan’s
opinion concurring in the judgment, the majority in Reed did not address the doctrine. The
Supreme Court usually does not overturn a long line of precedents sub silentio. 103
Id. at 2228.
Brewvies Reply at 2.
Id. at 1–2; Brewvies Opposition at 89–90.
Flanigan’s Enterprises, Inc. of George et al. v. City of Sandy Springs, Georgia, No. 16-14428, 2017 WL
3475481, at *5 (11th Cir. Aug. 14, 2017).
See supra Discussion Section 2(a).
Shalala v. Illinois Council on Long Term Care, Inc., 529 U.S. 1, 18 (2000) (“This court does not normally
overturn, or so dramatically limit, earlier authority sub silentio.”) See also Free Speech Coalition Inc., 825 F.3d at
174 (Rendell, J., concurring) (“the Court has admonished that other courts cannot conclude that its more recent cases
have, by implication, overruled an earlier precedent.”) (internal quotation marks omitted) (alterations omitted)
(emphasis added); see also BBL, Inc. v. City of Angola, 809 F.3d 317 (7th Cir. 2015) (“We don’t think Reed upends
established doctrine for evaluating regulation of businesses that offer sexually explicit entertainment, a category the
Court has said occupies the outer fringes of First Amendment protection.”).
c. It is not necessary to consider the difference between secondary and primary
Brewvies argues that Section 7 “is aimed at ‘primary’ effects.” 104 And Brewvies argues
that Dr. George (the State’s expert on secondary effects), “focuses not on ‘secondary effects,’ but
solely on the primary impacts of sexually explicit, pornographic content on those who see, hear,
or read the content, and what might occur as a result of those primary impacts.” 105
The problem with the secondary effects doctrine, as one commentator described it, is a
lack of clarity in its application:
The Supreme Court has not explained the distinction between secondary and
primary effects clearly or consistently, and there appears to be no single concept
of secondary effects that can reconcile current law
While various conceptions of secondary effects are implied in Supreme Court
cases, no one of them can predict when the Court will apply the secondary effects
doctrine or, alternatively, when it will apply strict scrutiny. 106
Fortunately, it is not necessary to untie this Gordian knot. Because Section 7 will be
considered under strict scrutiny, 107 the secondary effects doctrine is irrelevant.
3. Section 7 fails strict scrutiny.
Strict scrutiny “requires the Government to prove that the restriction furthers a
compelling interest and is narrowly tailored to achieve that interest.” 108 To be “narrowly
tailored,” the means for effectuating the compelling interest must be the “least restrictive means
among available, effective alternatives.” 109 Thus, it is the State’s burden to demonstrate that
Brewvies Motion at 13.
Brewvies Opposition at 2 (emphasis in original).
John Fee, The Pornographic Secondary Effects Doctrine, 60 Ala. L. Rev. 291, 306 (2009).
See infra Discussion Section 3.
Reed, 135 S.Ct. at 2231.
U.S. v. Alvarez, 567 U.S. 709, 729 (2012).
Section 7’s restrictions of Brewvies First Amendment rights is justified to serve a compelling
interest and that it is the least restrictive means for accomplishing that interest. The State cannot
The State offered only one governmental interest in support of Section 7’s restrictions:
avoiding potential negative secondary effects from combining sexually explicit images with
alcohol. 110 Though this may be a compelling governmental interest, Section 7 is not the least
restrictive means for accomplishing it. Section 7 is overinclusive.
A statute is overinclusive, and thus facially invalid, if there is a showing that the “law
punishes a substantial amount of protected free speech, judged in relation to the statute’s plainly
legitimate sweep.” 111 If the statute is found to be overinclusive it will “invalidate all enforcement
of that law, until and unless a limiting construction or partial invalidation so narrows it as to
remove the seeming threat or deterrence to constitutionally protected expression.” 112
Section 7 is overinclusive because it captures mainstream content. The following cases
demonstrate Section 7’s shortcomings. In Barnes v. Glen Theatre, Inc., Justice Souter
discussed 113 how Indiana’s public indecency law, which prohibited completely nude dancing,
would be overinclusive:
It is difficult to see, for example, how the enforcement of Indiana's statute against
nudity in a production of “Hair” or “Equus” somewhere other than an “adult”
theater would further the State's interest in avoiding harmful secondary effects, in
State Motion at 4.
Virginia v. Hicks, 539 U.S. 113, 118–19 (2003) (internal quotation marks omitted).
Id. at 119 (internal quotation marks omitted) (emphasis in original).
Courts have held that Justice Souter’s concurrence is the binding precedent from Barnes. See, e.g., Farkas v.
Miller, 151 F.3d 900, 904 (8th Cir. 1998) (“We find that the opinion of Justice Souter presented the narrowest
resolution of the issues in Barnes, as the plurality opinion is broad enough of to encompass the standard he
the absence of evidence that expressive nudity outside the context of Renton-type
adult entertainment was correlated with such secondary effects. 114
In Farkas v. Miller, 115 the Eighth Circuit addressed a First Amendment challenge to
Iowa’s statute that prevented fully nude dancing. The statute included important limiting
language: the statute “shall not apply to a theater, concert hall, art center, museum, or similar
establishment which is primarily devoted to the arts or theatrical performances and in which any
of the circumstances contained in this section were permitted or allowed as part of such art
exhibits or performances.” 116 The court determined that because of the limiting language the
statute was not overinclusive:
In this case, we find that the statute’s exception for ‘a theater, concert hall, art
center, museum, or similar establishment . . . primarily devoted to the arts or
theatrical performances’ saves it from being overbroad. The statutory exception
appropriately limits the reach of the restrictions to the type of adult entertainment
that is associated with harmful secondary effects. 117
In Basiardanes v. City of Galveston, 118 the Fifth Circuit addressed a zoning ordinance
that banned the showing of “nonobscene but sexually oriented motion pictures at adult theaters
with the City of Galveston.” 119 Though much of the court’s decision was later abrogated by City
of Renton, 120 its overbreadth discussion remains good law. The court held that the ordinance was
overbroad because it regulated “to the point of banning theaters regularly showing any film that,
under Texas law, may not be viewed by minors who are unaccompanied by an adult.” 121 The
Barnes, 501 U.S. at 585 n.2.
151 F.3d 900 (8th Cir. 1998).
Id. at 902.
Id. at 905.
682 F.2d 1203 (5th Cir. 1982).
Id. at 1207.
See Sarre v. City of New Orleans, 420 Fed. App’x 371, 375 n.12 (5th Cir. 2011).
Basiardanes, 682 F.2d at 1212–13.
court reasoned, “American theaters today commonly exhibit a broad range of films that may be
unfit for children without in any way contributing to urban blight or promoting crime. Yet
theaters showing these movies are subject to [the ordinance] to the same extent as an adult
theater showing films on the fringe of the obscene.” 122 The ordinance reached “many films that
are far removed from what is colloquially termed ‘hard core,’ or even ‘soft core,’
pornography.” 123 The court concluded, “It must be made totally clear that this ordinance, through
the guise of regulation, banned theaters showing motion pictures that admittedly could be shown
with complete legality to every person in Galveston seventeen years of age and over.” 124
By contrast, a carefully worded ordinance was upheld in Baby Dolls Topless Saloons,
Inc. v. City of Dallas, Tex. 125 The Fifth Circuit considered a city ordinance that defined sexually
oriented businesses to include “an adult arcade, adult bookstore or adult video store, adult
cabaret, adult motel, adult motion picture theater, adult theater, escort agency, nude model
studio, or sexual encounter center.” 126 The ordinance defined an adult video store as “a
commercial establishment that as one of its principal business purposes offers for sale or rental
for any form of consideration any one of the following: . . . representation that depict or describe
. . . ‘specified anatomical areas’” 127 It defined adult motion picture theater as “a commercial
establishment where, for any form of consideration, films, motion pictures, video cassettes,
slides, or similar photographic reproductions are regularly shown that are characterized by the
Id. at 1217.
Id. at 1216–17.
Id. at 1217.
295 F.3d 471 (5th Cir. 2002).
Id. at 477.
Id. (emphasis in original).
depiction or description of . . . ‘specified anatomical areas.’” 128 And it defined “specified
anatomical areas” to mean “any of the following, or any combination of the following, when less
than completely and opaquely covered: (i) any human genitals, pubic region, or pubic hair; (ii)
any buttock; or (iii) any portion of the female breast or breasts that is situated below a point
immediately above the top of the areola.” 129
The plaintiffs argued that the ordinance was overbroad because “it will operate to classify
a number of ‘mainstream’ businesses (movie theaters, video stores . . .) as [sexually oriented
businesses] (adult motion picture theaters, adult video stores . . .).” 130 The court rejected the
argument for two reasons. First, the court emphasized that in order to fall under the ordinance,
the motion picture theater, for example, would have to be regularly characterized (i.e., its
“essential character or quality”) as showing depictions of “specific anatomical areas.” 131
Accordingly, the court reasoned, the “chance that ‘mainstream’ movie theaters will show films
with depictions of [specific anatomical areas] as their essential quality, and will do so regularly,
is highly improbable, as is the chance that they will be classified as ‘adult’ motion picture
theaters” and thus sexually oriented businesses. 132 Section 7 has no requirement of “essential
quality” or regularity.
Second, the Fifth Circuit looked at agency interpretation to avoid declaring that the
statute was overbroad. That the statute was not overbroad “is confirmed by the limiting
construction by the City Attorney post-enactment of the Ordinance and filing of this action. That
Id. (emphasis in original).
Id. at 477–78 (emphasis in original).
Id. at 482.
limiting construction provides that businesses ‘which feature adult magazines, NC-17 or R-rated
video tapes, and NC-17 or R-rated motion pictures’, shall not be classified as [sexually oriented
businesses] by virtue of their featuring such products.” 133 We have no such agency interpretation
but in fact an agency enforcement illustrating Section 7’s overbreadth.
Barnes, Farkas, Basiardanes, and Baby Dolls Topless Saloons demonstrate that Section 7
“punishes a substantial amount of protected free speech.” 134 In an effort to mitigate the
secondary effects that allegedly result from the combination of alcohol and the occasional,
momentary glimpse of nudity, Section 7 reaches “many films that are far removed from what is
colloquially termed ‘hard core,’ or even ‘soft core,’ pornography.” 135 The State admits this. 136 It
makes no contention that Deadpool is pornography. The State only argues that by analogy short
portions of Deadpool are like the films typically found in an adult theater. 137 Unlike the statute in
Baby Dolls Topless Saloons, no language limits Section 7’s application to those businesses that
are characterized by regularly showing sexually explicit material, who make that their essential
nature. The State has violated the First Amendment by bringing an administrative enforcement
action against a mainstream motion picture theater showing an R-rated movie. That demonstrates
the breadth of Section 7’s reach. Section 7’s restrictions impose unacceptable limitations on
speech that the State admits should be accorded full First Amendment protection. 138
Id. at 483.
Virginia, 539 U.S. at 118.
Basiardanes, 682 F.2d at 1216–17.
Defendants’ Motion to Exclude Expert Opinions and Supporting Memorandum at 5, docket no. 44, filed January
27, 2017 (“Defendants do not argue that the images in Deadpool are obscene as the term has been defined by the
courts. Neither do Defendants argue that Deadpool is pornography.”).
State Reply at 7.
Undisputed Facts ¶¶ 4–5.
It is worth noting that Idaho’s statute similar to Section 7 139 was amended to substantially
narrow it scope 140 after a suit similar to this one was filed. 141
Therefore, because Section 7 is not the least restrictive means for effectuating the State’s
interest, it fails strict scrutiny. Brewvies is entitled to declaratory and injunctive relief.
Idaho Code § 23-614(1)(e) (2015) (making it a misdemeanor for a liquor licensee to serve alcohol and show
“films, still pictures, electronic reproductions, or other visual reproductions” that depicted
(i) Acts or simulated acts of sexual intercourse, masturbation, sodomy, bestiality, oral copulation,
flagellation or any sexual acts which are prohibited by law.
(ii) Any person being touched, caressed or fondled on the breast, buttocks, anus or genitals.
(iii) Scenes wherein a person displays the vulva or the anus or the genitals.
(iv) Scenes wherein artificial devices or inanimate objects are employed to portray any of the
prohibited activities described in this section.
Idaho Code § 23-614(1)(f) (2016) (it is unlawful for a liquor licensee to show “films, still pictures, electronic
reproductions or other visual reproductions which are in violation of chapter 41, title 18, Idaho Code (indecency and
obscenity), or are in violation of federal law regarding pornography, indecency or obscenity.”).
Verified Complaint and Demand for Jury Trial, docket no. 1 in Case 1:16-cv-00030-EJL, filed January 19, 2016.
IT IS HEREBY ORDERED that the Motion for Summary Judgment Granting Permanent
Injunction and Declaratory Relief and Supporting Memorandum 142 is GRANTED.
IT IS FURTHER HEREBY ORDERED that Defendants’ Motion for Summary Judgment
and Supporting Memorandum 143 is DENIED.
IT IS FURTHER HEREBY ORDERED that Plaintiff’s Motion for Reconsideration of
Memorandum Decision and Order Granting Defendants’ Motion to Exclude Expert Opinions and
Denying Plaintiff’s Motion to Exclude Expert Testimony 144 is MOOT.
IT IS FURTHER HEREBY ORDERED that the parties shall meet and confer on the form
of a proposed civil judgment stating the terms of the injunction and submit their agreed form or
separate offered forms by September 15, 2017.
Signed August 31, 2017.
BY THE COURT
United States District Judge
Docket no. 56, filed March 4, 2017.
Docket no. 57, filed March 6, 2017.
Docket no. 69, filed April 22, 2017.
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