                           File Name: 12a1308n.06
                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION

                                             No. 10-4060

                           UNITED STATES COURT OF APPEALS
                                                                                            FILED
                                                                                        Dec 27, 2012
                                FOR THE SIXTH CIRCUIT
                                                                                 DEBORAH S. HUNT, Clerk


J.L. SPOONS, INC., dba Christie’s Cabaret of               )
Brunswick; ENTERTAINMENT U.S.A. OF                         )    ON APPEAL F R O M T H E
CLEVELAND, INC., dba Christie’s Cabaret of                 )    UNITED STATES DISTRICT
Cleveland; SSY, INC., dba Christie’s Cabaret of            )    COURT FOR THE NORTHERN
Youngstown; BUCKEYE ASSOCIATION OF CLUB                    )    DISTRICT OF OHIO
EXECUTIVES,                                                )
                                                           )
                Plaintiffs-Appellants,                     )
                                                           )
v.                                                         )
                                                           )
OHIO DEPARTMENT OF PUBLIC SAFETY;                          )
ROCCO J. COLONNA, in his official capacity as a            )
member of the Ohio Liquor Control Commission;              )
KEITH MCNAMARA, in his official capacity as                )
Chairman of the Ohio Liquor Control Commission;            )
OHIO LIQUOR CONTROL COMMISSION; NANCY                      )
J. DRAGANI, Acting-Director of the Ohio Department         )
of Public Safety; ROBERT A. GARDNER, Ohio                  )
Liquor Control Commission,                                 )
                                                           )
                Defendants-Appellees.                      )
                                                           )

BEFORE: CLAY and WHITE, Circuit Judges; HOOD, District Judge.*

        HELENE N. WHITE, Circuit Judge. This First Amendment case is before us for a second

time. Plaintiffs-Appellants, three Ohio strip clubs and a strip-club association (Plaintiffs), challenge

the district court’s determination on remand that our prior decision in this case precludes Plaintiffs’


       *
       The Honorable Joseph M. Hood, United States District Judge for the Eastern District of
Kentucky, sitting by designation.
No. 10-4060
J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

as-applied challenge to certain provisions of Ohio Liquor Control Commission Rule 52, Ohio

Admin. Code 4301:1-1-52 §§ (A)(2), (B)(2), and (B)(3) (Rule 52 or the regulation), that proscribe

nudity and sexual activity at liquor-licensed establishments. They also appeal the district court’s

denial of their renewed facial challenge to Rule 52 based on a recent Supreme Court decision.

Because Plaintiffs’ as-applied challenge has yet to be decided on the merits, we REVERSE the

district court’s dismissal of their as-applied claim and REMAND for further proceedings. We

AFFIRM the district court’s dismissal of Plaintiffs’ renewed facial challenge to Rule 52.

                                                   I.

        From the start, Plaintiffs have asserted that in addition to being facially overbroad, Rule 52

is unconstitutional as applied to their establishments on the basis that the Ohio Liquor Control

Commission (the Commission) adopted the regulation without sufficient evidence showing that Ohio

strip clubs cause adverse secondary effects and, alternatively, that Plaintiffs’ evidence successfully

refuted the evidence on which the Commission relies for the regulation’s secondary-effects rationale.

In the first round of proceedings, the district court sustained Plaintiffs’ facial challenge to Rule 52

and enjoined enforcement of the regulation. Having so ruled, the district court found it unnecessary

to reach Plaintiffs’ as-applied challenge. On appeal, this court held that Rule 52 is not facially

overbroad and reversed. See J.L. Spoons, Inc. v. Dragani, 538 F.3d 379 (6th Cir. 2008) (J.L. Spoons

I). There was no need to address the as-applied challenge, the district court having decided the case

on other grounds.




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J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

        On remand, Plaintiffs sought decision on their as-applied challenge and also renewed their

facial challenge, asserting that the Supreme Court’s intervening decision in United States v. Stevens,

-- U.S. --, 130 S. Ct. 1577 (2010), changed the law and supported their facial challenge. The district

court1 held that Stevens did not change the applicable law and was not inconsistent with our first

decision in this case, and further concluded that our first decision effectively decided Plaintiffs’ as-

applied challenge and foreclosed further litigation of that claim on remand.

                                                  II.

        The prior panel summarized the first round of this litigation, including the history of Rule

52:

                 In July 2000, the district court permanently enjoined enforcement of several
        sections of old Rule 52[,2] finding them invalid under the First and Fourteenth
        Amendments. As a result, . . . the Commission . . . commenced proceedings for the
        enactment of a new version of Rule 52. In September 2003, the Commission
        received evidence and testimony regarding the validity of proposed new language for
        Rule 52. At this hearing, Mark Anderson, Executive Director of the Commission,
        testified that the earlier version of Rule 52 had been rescinded and that all of the
        filing requirements imposed by state law for the new version of Rule 52 had been
        met.

                The Commission heard extensive testimony from Bruce Taylor, an attorney
        from Fairfax, Virginia. Throughout his career he prosecuted vice crimes, including
        obscenity, prostitution, and liquor violations. He spoke at length about his
        understanding of precedent in this area and the constitutionality of liquor regulations.
        He testified that “nude dancing does contribute to its own types of secondary effects


        1
         The judge who presided over the first round of district-court proceedings passed away after
our first decision, and another judge took over the proceedings on remand.
       2
        “The primary difference between the old and the new Rule 52 is that the old Rule 52 covered
the showing of electronically reproduced images depicting actual or simulated sexual activities.”
J.L. Spoons I, 538 F.3d at 381 n.1.

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J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

        and to a greater degree than other liquor bars that don’t have nude dancing.”
        Specifically, prostitution, drug trafficking, and fights occur more frequently in and
        around bars that allow nude dancing than those that do not permit nude dancing.
        Taylor expressed his opinion that the language under consideration for the new Rule
        52 would be held constitutional by the courts.

                 The new version of Rule 52 was finalized and filed on February 9, 2004. It
        was scheduled to take effect on February 20, 2004. On February 20, [Plaintiffs] filed
        [this] suit[, pursuant to 42 U.S.C. § 1983 and other laws, against the Commission,
        the Ohio Department of Public Safety, and several officials associated with these two
        agencies (collectively, Defendants),] after learning of plans for enforcement agents
        to investigate strip clubs to determine compliance with Rule 52. They claimed that
        the Rule 52 provisions concerning “nudity” and “sexual activity” were broadly
        restrictive of protected expression [and unconstitutional as applied to adult
        establishments]. They sought a declaratory judgment that these sections were
        unconstitutional and a permanent injunction barring their enforcement. The district
        court granted the request for a temporary restraining order and scheduled a
        preliminary injunction hearing.

                At the preliminary injunction hearing, . . . [P]laintiffs called Dr. Judith Hanna,
        Ph.D., a cultural anthropologist and sociologist who researches and writes about arts,
        dance, and society. She stated that exotic and erotic dance has artistic value and
        conveys a range of potential messages. She also discussed a variety of “mainstream”
        ballet, modern dance, and theater performances that allegedly involve types of nudity
        and sexual contact that could be prohibited by Rule 52. [Plaintiffs] also presented
        testimony from Dr. Daniel Linz, Ph.D., a sociologist and psychologist, who stated
        that his research showed no positive correlation between the presence of
        liquor-serving establishments featuring nude or semi-nude dancing and the types of
        crimes cited by the Commission in support of its decision to adopt Rule 52. Dr. Linz
        stated that in some cases there was a negative correlation, meaning that nude dancing
        establishments actually decreased crime in the surrounding community.

                The Commission then presented testimony from Scott Pohlman of the Ohio
        Department of Safety in support of Rule 52. He described numerous occasions
        where he personally observed illicit behavior in and around liquor-serving
        establishments that feature nude or semi-nude dancing. He stated that Rule 52 was
        needed to limit illicit behavior.

                Following the hearing, the Commission agreed to refrain from enforcing Rule
        52 until at least April 1, 2004, in order to grant the district court enough time to enter
        a ruling on [Plaintiffs]’ motion for a preliminary injunction. On April 1, the district

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No. 10-4060
J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

          court granted [P]laintiffs’ motion for a preliminary injunction against the
          Commission. It enjoined . . . [enforcement of Rule 52’s challenged provisions]
          anywhere in Ohio. In January 2007, it granted . . . a permanent injunction and
          declared [the challenged provisions] unconstitutionally overbroad.

J.L. Spoons I, 538 F.3d at 381–82. The district court declined to resolve Plaintiffs’ as-applied

claim.3

          In August 2008, a divided panel of this court reversed. Before addressing the facial challenge

at issue, the majority observed that “Rule 52 is almost identical to the regulation upheld by the

Supreme Court in City of Erie v. Pap’s A.M., 529 U.S. 277 (2000),” where the ordinance made it “a

summary offense to knowingly or intentionally appear in public in a ‘state of nudity.’” Id. at 382

(internal citation altered). After reviewing the Supreme Court cases analyzing laws targeting adverse

secondary effects of nude dancing, the majority stated that “Pap’s A.M. would be directly on-point

and would decide [this case] were it not for the fact that the district court struck down Rule 52 on

the grounds that it was overbroad,” while Pap’s A.M. was decided on First Amendment grounds

under the intermediate scrutiny standard set forth in United States v. O’Brien, 391 U.S. 367 (1968).

Id. at 382–83.




          3
         In issuing a permanent injunction, the district court adopted, from its April 2004 preliminary
injunction order, its analysis with respect to the merits of Plaintiffs’ facial challenge. See J.L.
Spoons, Inc. v. Morckel, Nos. 98-cv-2857, 04-cv-314, 2007 WL 14581, at *2 (N.D. Ohio Jan 3,
2007), reversed by J.L. Spoons I, 538 F.3d 379. In that order, the district court did not resolve
Plaintiffs’ as-applied claim, stating that it was “uncertain to what extent the Supreme Court would
advocate that [it] simply approve [Ohio]’s reliance on ‘propositions . . . well established in common
experience and . . . zoning policies that [the Supreme Court] ha[s] already examined,’ and ignore the
implications of more persuasive, if counterintuitive, evidence like Dr. Linz’s study.” J.L. Spoons,
Inc. v. Morckel, 314 F. Supp. 2d 746, 756 (N.D. Ohio 2004) (internal citation omitted).

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J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

        Turning to the facial challenge, the majority found “that Rule 52 is a constitutional,

content-neutral regulation of the undesirable secondary effects, including prostitution, drug

trafficking, and assault, associated with nude dancing in an environment serving alcohol. It is not

overbroad.” Id. at 382. Specifically, the majority concluded that Plaintiffs had failed to show that

Rule 52 involved a substantial amount of “impermissible applications” relative to its “plainly

legitimate sweep.” Id. at 383–86. The regulation’s arguably impermissible applications to artistic

expression did not render it substantially overbroad, since such applications amounted to only a

fraction of Rule 52’s reach. Id. at 384–86. The dissenting panel member—while opining “that Rule

52 as applied to nude-dancing establishments would be constitutional”—disagreed with the

majority’s analysis primarily on the basis that the regulation applied to all Ohio liquor permit

holders, half of which could potentially present live entertainment, and did not exempt persons

engaging in performances with literary, artistic, or political value. Id. at 386–93 (Cole, J.,

dissenting).

        We denied en banc rehearing, and the Supreme Court denied certiorari. See J.L. Spoons, Inc.

v. Guzman, 130 S. Ct. 53 (2009) (mem.). The same day certiorari was denied, Plaintiffs returned to

the district court seeking to enjoin enforcement of Rule 52 on the basis of their yet-to-be-decided as-

applied claim. At a subsequent hearing, Plaintiffs argued that the intervening decision in United

States v. Stevens, -- U.S. --, 130 S. Ct. 1577 (2010)—in which the Supreme Court held that a federal

statute criminalizing certain depictions of animal cruelty was facially overbroad in violation of the

First Amendment—warranted renewal and reconsideration of their facial challenge to Rule 52.



                                                   6
No. 10-4060
J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

        After additional briefing, the district court denied Plaintiffs’ motion for injunctive relief and

dismissed the action, concluding that: (1) Stevens did not set forth a contrary view of First

Amendment law or materially change the law to support reconsideration of Plaintiffs’ facial

challenge under law-of-the-case principles; and (2) the J.L. Spoons I decision had resolved Plaintiffs’

facial challenge in a way that foreclosed further consideration of their as-applied claim. See J.L.

Spoons, Inc. v. Collins-Taylor, No. 04-cv-314, 2010 WL 3370184 (N.D. Ohio Aug. 26, 2010). This

timely appeal followed.

                                                  III.

                                                   A.

        Although “[w]e use an abuse of discretion standard when reviewing a lower court’s

application of the law-of-the-case doctrine,” Rouse v. DaimlerChrysler Corp., 300 F.3d 711, 715

(6th Cir. 2002), we review de novo purely legal questions such as those involving First Amendment

law. See Hamilton’s Bogarts, Inc. v. Michigan, 501 F.3d 644, 649 (6th Cir. 2007); Cnty. Sec.

Agency v. Ohio Dep’t of Commerce, 296 F.3d 477, 485 (6th Cir. 2002). The law-of-the-case doctrine

precludes reconsideration of a previously-decided issue at a subsequent stage in the litigation “unless

one of three ‘exceptional circumstances’ exists: [1] the evidence in a subsequent trial was

substantially different; [2] controlling authority has since made a contrary decision of law applicable

to such issues; or [3] the decision was clearly erroneous, and would work a substantial injustice.”

Poundstone v. Patriot Coal Co., 485 F.3d 891, 895 (6th Cir. 2007) (quoting Coal Res., Inc. v. Gulf

& W. Indus., Inc., 865 F.2d 761, 767 (6th Cir. 1989)) (alterations in original); see United States v.



                                                   7
No. 10-4060
J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

Moored, 38 F.3d 1419, 1421 (6th Cir. 1994) (explaining that these principles also apply in

determining whether a district court is authorized to reconsider an issue decided by the appellate

court).

          Thus, Plaintiffs may renew their facial challenge only if Stevens, 130 S. Ct. 1577, modified

First Amendment overbreadth doctrine in a way that is contrary to the prior panel’s approach in J.L.

Spoons I. Stevens, however, did not announce a material change to that doctrine. In Stevens, the

Supreme Court addressed a facial challenge to 18 U.S.C. § 48 (2009) (Section 48), a federal statute

that, at the time, criminalized the commercial creation, sale, or possession of certain depictions of

animal cruelty. See 130 S. Ct. at 1582. Congress enacted Section 48 to target “crush videos,” i.e.,

videos that depict women slowly crushing helpless animals to death “with their bare feet or while

wearing high heeled shoes,” which apparently “appeal to persons with a very specific sexual

fetish[.]” Id. at 1583 (quoting H.R. Rep. No. 106-397, at 2–3 (1999)). The Court, in declining the

government’s request to carve out a new category of unprotected speech based on depictions of

animal cruelty, stated that it would review the challenge to Section 48 under its “existing doctrine.”

Id. at 1586. The Court then applied the same overbreadth principles the majority applied in J.L.

Spoons I. Compare Stevens, 130 S. Ct. at 1587 and 1591–92 with J.L. Spoons I, 538 F.3d at 383–84.

          After determining that Section 48 “create[d] a criminal prohibition of alarming breadth,”

given that (among other reasons) it applied well beyond crush videos to depictions where an animal

was “wounded” or “killed,” id. at 1588, the Court rejected the government’s arguments aimed at

saving the statute. First, the Court stated that “[t]he only thing standing between defendants who sell



                                                   8
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J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

such depictions and five years in federal prison—other than the mercy of a prosecutor—is the

statute’s exceptions clause,” which “exempt[ed] from prohibition ‘any depiction that has serious

religious, political, scientific, educational, journalistic, historical, or artistic value’” (serious-values

exception). Id. at 1590 (citation omitted). But, the Court reasoned, this serious-values exception

did not substantially narrow the statute’s reach, as the First Amendment protects many forms of

speech that are not inherently valuable enough to fall within the exception but, nonetheless, would

be prohibited by Section 48. Id. at 1590–91. Second, the Court responded to the government’s

assurance, as a basis to uphold the statute, that it would use prosecutorial discretion to target

depictions of only “extreme” cruelty, by observing that the First Amendment “does not leave us at

the mercy of noblesse oblige” and that the Court “would not uphold an unconstitutional statute

merely because the [g]overnment promised to use it responsibly.” Id. at 1591. The Court concluded

that Section 48 was unconstitutionally overbroad because “the presumptively impermissible

applications” of the statute, such as to hunting magazines and videos, “far outnumber[ed] any

[arguably] permissible ones” aimed at crush videos or other depictions of extreme animal

cruelty—the legislative targets of Section 48.4 Id. at 1592.

        Contrary to Plaintiffs’ suggestion, Stevens did not hold that a law is facially overbroad merely

because it lacks a serious-values exception and there is no assurance of prosecutorial discretion.

This interpretation of Stevens would render a host of otherwise facially valid laws unconstitutional.



        4
         Following Stevens, Congress amended Section 48 to limit its prohibition to “crush videos,”
i.e., obscene depictions of animals being “intentionally crushed, burned, drowned, suffocated,
impaled, or otherwise subjected to serious bodily injury.” Animal Crush Video Prohibition Act of
2010, Pub. L. 111-294, § 3(a), 124 Stat. 3178 (2010) (codified at 18 U.S.C. § 48 (2010)).
                                                 9
No. 10-4060
J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

In Stevens, the Court found that Section 48’s breadth was “alarming,” 130 S. Ct. at 1588, and then

rejected the government’s arguments for saving the statute despite its substantial overbreadth. Here,

by contrast, the majority in J.L. Spoons I found that Rule 52 is not overbroad; thus no limiting

construction is necessary. Moreover, although Plaintiffs disagree with the majority’s application of

First Amendment law to the facts of their case and advance that the dissent’s analysis is correct,

“absent any change in the intervening law on a particular issue, we have no power to revisit another

panel’s legal and factual conclusions.” United States v. Shelby, 604 F.3d 881, 888 (5th Cir. 2010)

(per curiam); see Sykes v. Anderson, 625 F.3d 294, 319 (6th Cir. 2010). Accordingly, we affirm the

district court’s dismissal of Plaintiffs’ renewed facial challenge to Rule 52.

                                                  B.

        The district court concluded that the J.L. Spoons I decision foreclosed further consideration

of Plaintiffs’ as-applied challenge to Rule 52. We disagree because the prior panel did not decide

this claim. We review de novo a district court’s interpretation of an appellate mandate, with the view

that “[t]he district court must ‘implement both the letter and the spirit of the mandate’ and take into

account ‘the circumstances it embraces.’” United States v. Haynes, 468 F.3d 422, 425 (6th Cir.

2006) (quoting United States v. Moore, 131 F.3d 595, 599 (6th Cir. 1997)). The mandate rule, which

is a “specific application” of the law-of-the-case doctrine, Jones v. Lewis, 957 F.2d 260, 262 (6th

Cir. 1992), “generally preclude[s] a lower court from reconsidering an issue expressly or impliedly

decided by a superior court,” United States v. Mendez, 498 F.3d 423, 426 (6th Cir. 2007) (per

curiam) (quoting Moored, 38 F.3d at 1421). “In determining the scope of an appellate mandate, the

majority, concurring, and dissenting opinions may be consulted.” Jones, 957 F.2d at 262 (citations

                                                  10
No. 10-4060
J.L. Spoons, Inc., et al. v. Ohio Dep’t of Pub. Safety, et al.

omitted); see Fed. R. App. P. 41(a) (an appellate court’s mandate includes both the judgment and

the court’s opinion).

        The parties agree that neither the district court nor this court ruled on Plaintiffs’ as-applied

challenge in the first round of litigation. The district court acknowledged that the prior panel “only

dealt expressly with the facial constitutional challenge,” but reasoned that the panel “did so in a way

that foreclosed an as applied challenge by strip club owners such as [P]laintiffs.” J.L. Spoons, 2010

WL 3370184, at *2. The district court’s reasoning was understandable, given language in the

majority and dissenting opinions stating that the prior panel accepted for purposes of its decision that

Rule 52 was a constitutional regulation of the undesirable secondary effects associated with strip

clubs. See, e.g., J.L. Spoons I, 538 F.3d at 382–83; id. at 387 (Cole, J., dissenting).

        However, a finding that a law is facially constitutional under the First Amendment generally

does not foreclose subsequent as-applied challenges. See, e.g., Wisconsin Right to Life, Inc. v. FEC,

546 U.S. 410 (2006) (per curiam). And here, the prior panel did not decide Plaintiffs’ as-applied

claim. In originally granting injunctive relief, the district court declined to reach Plaintiffs’ as-

applied claim, and, in reversing the district court’s injunction, the majority acknowledged that the

district court had struck down Rule 52 only on overbreadth grounds. See J.L. Spoons I, 538 F.3d at

383. Citing Paps’ A.M., the majority observed that it is constitutional to enact regulations targeted

against the secondary effects associated with strip clubs and recognized that a state or municipality

need not conduct studies documenting these effects or develop a specific evidentiary record to

support a regulation targeted against such effects. Id. Then, relying on general overbreadth

principles, the majority explained that a regulation’s facial validity depends on whether it goes

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beyond this legitimate purpose and prohibits or chills a substantial amount of protected speech. Id.

at 383–86. The majority did not express any further view that foreclosed Plaintiffs’ as-applied claim.

        Although laws targeted against secondary effects are presumed constitutional, it is a separate

question whether, in a specific situation, there are secondary effects that need to be addressed. In

City of Renton v. Playtime Theatres, Inc., the Supreme Court recognized that the adverse secondary

effects associated with adult establishments can be “caused by the presence of even one such”

establishment. 475 U.S. 41, 50 (1986). In upholding a municipal zoning ordinance prohibiting adult

theaters from being located within 1,000 feet of any residential zone, family dwelling, church, park,

or school, the Renton Court held that a government may rely on any evidence that is “reasonably

believed to be relevant” for demonstrating a connection between speech and a substantial interest

aimed at curtailing adverse secondary effects associated with adult establishments; such evidence

includes the experiences of “other cities” and the detailed findings made by courts with respect to

other zoning ordinances. Id. at 51–52. Following Renton, the Court’s plurality opinion in Paps’

A.M. reiterated that a government may reasonably rely on the experience of other jurisdictions

relevant to the secondary-effects problem it is addressing. 529 U.S. at 297 (O’Connor, J., plurality

op.). These cases establish that there is a general presumption that a government may regulate

secondary effects associated with strip clubs by relying on a body of prior experience. The Supreme

Court, however, has also laid out a procedure for plaintiffs who seek to disprove a government’s

reliance on such “propositions . . . well established in common experience and in zoning policies that

[the Supreme Court] ha[s] already examined.” City of Los Angeles v. Alameda Books, Inc., 535 U.S.



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425, 453 (2002) (Kennedy, J., concurring) (stating that, “[i]f these assumptions can be proved

unsound . . . then [an] ordinance might not withstand intermediate scrutiny”).

        In Alameda Books, the case underlying Plaintiffs’ as-applied claim, the plurality opinion set

forth a three-step burden-shifting test for determining whether a government has a substantial interest

in enacting a regulation targeted against secondary effects:

        [First,] a municipality may rely on any evidence that is ‘reasonably believed to be
        relevant’ for demonstrating a connection between speech and a substantial,
        independent government interest. This is not to say that a municipality can get away
        with shoddy data or reasoning. The municipality’s evidence must fairly support the
        municipality’s rationale for its [regulation]. [Second, i]f [P]laintiffs fail to cast direct
        doubt on this rationale, either by demonstrating that the municipality’s evidence does
        not support its rationale or by furnishing evidence that disputes the municipality’s
        factual findings, the municipality meets the standard set forth in Renton. [Third, i]f
        [P]laintiffs succeed in casting doubt on a municipality’s rationale in either manner,
        the burden shifts back to the municipality to supplement the record with evidence
        renewing support for a theory that justifies its ordinance.

Id. at 438–39 (O’Connor, J., plurality op.) (internal citations omitted). We apply the plurality’s

“burden-shifting framework governing the evidentiary standard in secondary-effects cases.’”5

Richland Bookmart, Inc. v. Knox Cnty., Tenn., 555 F.3d 512, 525 (6th Cir. 2009) (quoting

Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 297 n.5 (6th Cir. 2008)); see 84

Video/Newsstand, Inc. v. Sartini, 455 F. App’x 541, 548 (6th Cir. 2011) (unpublished).

        In J.L. Spoons I, the court did not evaluate the secondary-effects evidence under the Alameda

Books standard. It simply accepted the established proposition that regulations targeting the



        5
        We have noted that Justice Kennedy’s concurrence in Alameda Books, while representing
the narrowest grounds concurring in the Court’s judgment, “seems to endorse the evidentiary
standard set forth by the plurality, and departs from the plurality on a different point.” Richland
Bookmart, 555 F.3d at 525 n.5 (citation omitted).
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secondary effects of strip clubs are presumed constitutional. Plaintiffs’ evidentiary challenge to that

general presumption, which is permitted under Alameda Books and our precedents, has never been

resolved. We therefore reverse the district court’s decision that Plaintiffs’ as-applied claim was

foreclosed by J.L. Spoons I and remand for the district court to rule on that claim. We leave the

question whether Plaintiffs should be permitted to introduce new evidence in support of their as-

applied claim to the district court’s discretion.

                                                    IV.

        For the foregoing reasons, we AFFIRM in part, REVERSE in part, and REMAND for

further proceedings.




                                                    14
