
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1176                              NATIONAL AMUSEMENTS, INC.,                                Plaintiff, Appellant,                                          v.                                   TOWN OF DEDHAM,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                              _________________________                                        Before                                Selya, Circuit Judge,                                       _____________                            Bownes, Senior Circuit Judge,                                    ____________________                              and Stahl, Circuit Judge.                                         _____________                              _________________________               Theodore E. Dinsmoor, with whom Finnegan and Stanzler, P.C.,               ____________________            ___________________________          Philip  Y. Brown, Grant Schwartz & Brown, Tad Jankowski, and Lori          ________________  ______________________  _____________      ____          Wiechelt were on brief, for appellant.          ________               Joyce  Frank, with  whom  Kopelman and  Paige,  P.C. was  on               ____________              __________________________          brief, for appellee.                              _________________________                                   January 4, 1995                              _________________________                    SELYA, Circuit Judge.  This appeal presents a medley of                    SELYA, Circuit Judge.                           _____________          constitutional questions driven by the passage of a municipal by-          law that effectively prohibits  the exhibition of motion pictures          at the  town's only theater  between the hours  of 1:00 a.m.  and          6:00   a.m.     After   careful  consideration   of   appellant's          asseverational  array, we  affirm the  district court's  entry of          summary judgment in the municipality's favor.          I.  BACKGROUND          I.  BACKGROUND                    Plaintiff-appellant,  National  Amusements, Inc.,  owns          and operates Showcase Cinemas (Showcase), a complex containing 12          theaters located on Route  1 in Dedham, Massachusetts.   In 1978,          appellant  began  exhibiting  "midnight  movies"  on  Friday  and          Saturday nights.   These performances started  between 11:30 p.m.          and 12:30 a.m., and ended between 1:00 a.m. and 2:30 a.m.                    On  January  12, 1989,  at a  meeting  of the  Board of          Selectmen (Dedham's  governing body), Selectman Kehoe  raised the          issue of secondary  effects, expressing  particular concern  over          purported   traffic  and   security   problems  associated   with          Showcase's operation  of its business.  At  a selectmen's meeting          the following week, after another  selectman reported that he had          received complaints about  disruptions connected with appellant's          exhibition of midnight movies, the Board placed a proposed by-law          amendment  on  the  warrant   for  the  forthcoming  annual  Town          Meeting.1  The text  of this proposal, denominated "Article  40,"                                        ____________________               1The venerable  institution of  the town meeting  is perhaps          more  celebrated in  New England  than  elsewhere.   The colonial          government  of Massachusetts  first passed  enabling legislation,                                          2          read in pertinent part:                    To see if the Town will vote to amend Chapter                    XIII  of  the  Town  By-Laws  by  adding  the                    following new section:                    Section  42B-  No  holder of an entertainment                    license  for  theatrical  exhibition,  public                    show,  public  amusement,  concert, dance  or                    exhibition  .  .  .  shall  conduct  business                    between the  hours of  12  midnight and  6:00                    a.m.          The Board also sent a letter to William Towey, appellant's senior          vice-president,  memorializing  its "concern  about  the problems          generating  from  the Showcase  Cinemas  after  the weekend  late          shows," and indicating that the Board "would like to discuss this          situation . .  . ."   On February 2,  Towey and approximately  30          interested residents met with the selectmen and discussed matters          related to the exhibition of midnight movies.                    In  response  to the  residents'  articulated concerns,          Towey  conferred with  various  townsfolk, including  the  police          chief.    Thereafter,  appellant  agreed  to  undertake,  at  its          expense,  a variety  of  measures designed  to enhance  security,          reduce noise levels, control  traffic, and ameliorate the problem          of  litter.    Despite  these concessions,  the  voters  approved                                        ____________________          entitled the "Town Act," in 1636.  A 1647 version of the Town Act          gave   municipalities  the   "power   to  make   such  laws   and          Constitutions as may concern the welfare of their Town.  Provided          they be not of a criminal but  only of a prudential nature . .  .          and not repugnant to the publick Laws."  1647 Mass. Town Act, The                                                                        ___          Laws  and Liberties  of Massachusetts 50  (1648 &  reprint 1929).          _____________________________________          While Dedham's present-day Town  Meeting operates under the aegis          of the Home Rule Amendment to the Massachusetts Constitution, see                                                                        ___          Mass.  Const.  amend. art.  2,     1-9,  amended by  Mass. Const.                                                   __________          amend. art.  89; see also Bloom v.  City of Worcester, 293 N.E.2d                           ___ ____ _____     _________________          268, 274-75 (Mass. 1973),  it, too, possesses lawmaking capacity,          see Mass. Const. amend. art. 2,   6.          ___                                          3          Article 40  at  a Town  Meeting  held on  April  10, 1989  (first          amending  it to exempt ballroom dancing and to change the closing          time to 12:30 a.m.).                    Under  the  Massachusetts  scheme,   municipal  by-laws          cannot take effect without the imprimatur of the Attorney General          of the Commonwealth of Massachusetts.  See Mass. Gen.  L. ch. 40,                                                 ___            32.  The Attorney General refused to sanction Article 40 on the          ground that  the proposed  amendment, by  distinguishing ballroom          dancing from  other forms of  dance, was not  content-neutral and          was, therefore, unconstitutional.                    Undaunted,  the Board of  Selectmen proposed a neoteric          amendment,  Article 4,  for  inclusion on  the next  Town Meeting          warrant.  Article 4 provided in pertinent part:                    To see if the Town will vote to amend Chapter                    XIII of  the Revised  By-Laws of the  Town of                    Dedham,  entitled   "Police  Regulations"  by                    adding a  new section at the  end thereof, as                    follows:  Section 57.                                      __                    Unless  otherwise restricted, no  holder of a                    license  issued  by   the  Town  of   Dedham,                    pursuant   to  Massachusetts   General  Laws,                    Chapter 140,  Sections  177A, 181  and  183A,                    shall permit any activity licensed thereunder                    to  be conducted  between the  hours of  1:00                    a.m. and 6:00 a.m.2                    The voters adopted Article 4 at a special  Town Meeting          held on November  6, 1989.  The  Attorney General approved it  on          February  8,  1990.   On  the  day that  Article  4  took effect,                                        ____________________               2The state laws cited in Article 4 authorize municipalities,          in  general, to grant and revoke  licenses for amusement devices,          concerts,  dances, exhibitions,  and  public shows  for which  an          admission fee is charged.                                          4          appellant  sued, charging  that  the by-law  violated its  rights          under  both  the federal  and  state  constitutions.3   Following          pretrial  discovery,   Dedham  successfully  moved   for  summary          judgment.  See National  Amusements, Inc. v. Town of  Dedham, 846                     ___ __________________________    _______________          F. Supp. 1023 (D. Mass. 1994).  This appeal ensued.          II.  THE SUMMARY JUDGMENT STANDARD          II.  THE SUMMARY JUDGMENT STANDARD                    A federal court may  grant summary judgment in  a civil          action   "if    the    pleadings,   depositions,    answers    to          interrogatories,  and  admissions  on  file,  together  with  the          affidavits, if any, show that there is no genuine issue as to any          material fact and that the moving party is entitled to a judgment          as a matter of law."  Fed.  R. Civ. P. 56(c).  The Supreme  Court          fleshed out this rule in a trilogy of cases decided  in the 1985-          86  term.  See  Celotex Corp.  v. Catrett,  477 U.S.  317 (1986);                     ___  _____________     _______          Anderson v.  Liberty Lobby, Inc., 477 U.S. 242 (1986); Matsushita          ________     ___________________                       __________          Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574  (1986).  In          ________________    __________________          general,  these  cases  require  that  a  party  seeking  summary          judgment  make a  preliminary showing  that no  genuine issue  of          material fact exists.  Once the movant has made this showing, the          nonmovant  must contradict  the showing  by pointing  to specific          facts demonstrating  that there is, indeed,  a trialworthy issue.          See Celotex, 477 U.S. at 324.          ___ _______                    To  satisfy  the  criterion  of   trialworthiness,  and          thereby forestall  summary judgment, an issue  must be "genuine,"                                        ____________________               3Dedham agreed  not to  enforce the by-law  against Showcase          pendente lite.  This stipulation remains in effect.          ________ ____                                          5          that is, the evidence relevant to the issue, viewed in the  light          most flattering to  the party  opposing the motion,  see Mack  v.                                                               ___ ____          Great Atl.  & Pac. Tea  Co., 871 F.2d  179, 181 (1st  Cir. 1989),          ___________________________          must be  sufficiently open-ended to permit  a rational factfinder          to resolve the issue in favor of either side.  See Liberty Lobby,                                                         ___ _____________          477 U.S.  at 250; Hahn  v. Sargent, 523  F.2d 461, 464  (1st Cir.                            ____     _______          1975),  cert.  denied,  425  U.S. 904  (1976).    Trialworthiness                  _____  ______          necessitates  "more  than simply  show[ing]  that  there is  some          metaphysical doubt  as to the  material facts."   Matsushita, 475                                                            __________          U.S. at 586.  As we have stated, "[t]he evidence illustrating the          factual controversy cannot be conjectural or problematic; it must          have substance in the  sense that it limns differing  versions of          the truth  which a factfinder  must resolve . .  . ."   Mack, 871                                                                  ____          F.2d at 181.                    Trialworthiness requires not only a "genuine" issue but          also  an  issue that  involves a  "material"  fact.   See Liberty                                                                ___ _______          Lobby, 477  U.S. at 248.   In this  context, the  term "material"          _____          means that  a fact has  the capacity to  sway the outcome  of the          litigation  under the applicable law.   See id.;  see also United                                                  ___ ___   ___ ____ ______          States v. One Parcel  of Real Property, Etc. (Great  Harbor Neck,          ______    __________________________________  ___________________          New Shoreham, R.I.),  960 F.2d 200, 204 (1st Cir.  1992).  If the          __________________          facts on which the  nonmovant relies are not material, or  if its          evidence  "is not  significantly probative,"  Liberty Lobby,  477                                                        _____________          U.S. at 249-50  (citations omitted),  brevis disposition  becomes                                                ______          appropriate.                    An  order granting  summary judgment  engenders plenary                                          6          review.  See Pagano v. Frank, 983 F.2d 343, 347  (1st Cir. 1993).                   ___ ______    _____          In conducting such review, we examine the summary judgment record          in the light most friendly to the summary  judgment loser, and we          indulge all reasonable inferences in that party's favor.  See id.                                                                    ___ ___          Withal, we need not credit purely conclusory allegations, indulge          in rank  speculation, or draw improbable inferences.  See Medina-                                                                ___ _______          Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8(1st Cir. 1990).          _____    _________________________          III.  THE FIRST AMENDMENT CLAIM          III.  THE FIRST AMENDMENT CLAIM                    The heart of appellant's case is its multifaceted claim          that  the municipal by-law violates the First Amendment.  We turn          directly   to   that   claim   (relegating   appellant's  related          overbreadth challenge to Part IV(C), infra).                                               _____                           A.  Putting First Things First.                           A.  Putting First Things First.                               __________________________                    In  the   context  of  First  Amendment  challenges  to          government regulations that burden  speech, the Supreme Court has          identified  two  differing  modes   of  analysis,  or  levels  of          scrutiny,  that   may  come  into  play.     Since  entertainment          constitutes  a  form of  speech,  fully  protected by  the  First          Amendment, see Schad  v. Borough of Mt. Ephraim, 452  U.S. 61, 65                     ___ _____     ______________________          (1981), our initial task is to determine the appropriate level of          judicial scrutiny that  attaches to an analysis of Article 4.  We          begin  this endeavor by mapping the choices and putting them into          workable perspective.                    Freedom  of speech  is among  the most precious  of our          constitutional rights.   Thus, courts have  long recognized that,          when  governmental  action  places  speech  in  special jeopardy,                                          7          special  protections  must  apply.    For  this  reason,  a court          embarking   on  an   inquiry   into   the  constitutionality   of          governmental action  will devote  "the most exacting  scrutiny to          regulations that suppress,  disadvantage, or impose  differential          burdens on speech because of  its content."  Turner  Broadcasting                                                       ____________________          Sys., Inc. v.  FCC, 114 S. Ct. 2445, 2459  (1994); accord Simon &          __________     ___                                 ______ _______          Schuster, Inc. v. Members of N.Y. State Crime Victims Bd., 112 S.          ______________    _______________________________________          Ct. 501, 508 (1991); Widmar v. Vincent, 454 U.S. 263, 276 (1981).                               ______    _______          Strict scrutiny is desirable  in these circumstances because such          laws "pose the  inherent risk  that the Government  seeks not  to          advance a  legitimate regulatory goal, but  to suppress unpopular          ideas  or information  or  manipulate the  public debate  through          coercion rather  than persuasion."   Turner Broadcasting,  114 S.                                               ___________________          Ct. at 2458.  Courts therefore treat content-based regulations as          "presumptively  invalid" under  the First  Amendment.   R.A.V. v.                                                                  ______          City of St. Paul, 112 S. Ct. 2538, 2542 (1992).          ________________                    In contrast, regulations  that burden speech, but  that          are unrelated to the speaker's viewpoint or to the content of the          proscribed speech, are subject to a less taxing (but  nonetheless          meaningful) level of judicial scrutiny.  This disparate treatment          is justified because, on the whole, non-content-based regulations          pose "a  less  substantial  risk of  excising  certain  ideas  or          viewpoints from  the public dialogue."   Turner Broadcasting, 114                                                   ___________________          S. Ct. at 2459.   Phrased another way, since regulations that are          not content-based  portend less  jeopardy for freedom  of speech,          the  special prophylaxis  that  strict scrutiny  ensures is  less                                          8          necessary.                    This  dichotomy  has important  practical ramifications          for  constitutional  analysis   as  the  applicable  indices   of          constitutionality vary  according to  the level of  scrutiny that          attaches.  Strict judicial scrutiny makes it less likely that any          given regulation will clear the constitutional hurdle for, in its          domain, the operative test is whether  a regulation "is necessary          to serve a  compelling state  interest and is  narrowly drawn  to          achieve that end."   Arkansas Writers' Project,  Inc. v. Ragland,                               ________________________________    _______          481  U.S.  221,  231  (1987).    Under  ordinary  First Amendment          scrutiny       sometimes   called   "intermediate"   scrutiny  in          recognition of the fact that all First Amendment scrutiny is more                                       ___          demanding  than the "rational basis"  standard that is often used          to  gauge the  constitutionality  of  economic  regulations,  see                                                                        ___          Turner  Broadcasting,  114 S.  Ct. at  2458;  see also  Madsen v.          ____________________                          ___ ____  ______          Women's  Health Ctr., Inc., 114 S. Ct. 2516, 2537 (1994) (Scalia,          __________________________          J.,  concurring in part  and  dissenting  in part)    the test is          less  exacting in  both the  "ends" and  "means" segments  of the          equation.     Thus,   where   intermediate   scrutiny   pertains,          restrictions  on   the  time,  place,  or   manner  of  protected          expression "are  valid provided  that they are  justified without          reference to the content  of the regulated speech, that  they are          narrowly tailored  to serve a significant  governmental interest,          and  that   they  leave  open  ample   alternative  channels  for          communication  of  the  information."   Clark  v.  Community  for                                                  _____      ______________          Creative Non-Violence, 468 U.S. 288, 293 (1984).          _____________________                                          9                        B.  Identifying the Level of Scrutiny.                        B.  Identifying the Level of Scrutiny.                            _________________________________                    In light of these  differing analytic modalities, it is          unsurprising  that  many   First  Amendment   battles  over   the          constitutionality  of government regulations  start with a debate          about what level of scrutiny is appropriate.  The instant case is          no  exception.   Here,  appellant   advances  two main  theses in          support of its exhortation that Dedham's by-law must be subjected          to  strict scrutiny.    First, it  maintains  that Article  4  is          content-based.  Second, it maintains that Article 4 impermissibly          singles out, and thus  targets, Showcase's exhibition of midnight          movies.  Neither thesis merits a passing grade.                    1.   Relationship  to  Content.   Appellant's  flagship                    1.   Relationship  to  Content.                         _________________________          claim  portrays  Article 4  as  a content-based  regulation.   If          sustainable, this characterization would require us to employ the          most    exacting   scrutiny    in    evaluating   the    by-law's          constitutionality.   See, e.g., Simon  & Schuster, 112  S. Ct. at                               ___  ____  _________________          508.     Be  that   as  it  may,   we  do  not   think  that  the          characterization is apt.                    The  concept of  what  constitutes a  content-based  as          opposed  to a  content-neutral regulation  has proven  protean in          practice.  The Court's cases teach that the "principal inquiry in          determining content neutrality, in  speech cases generally and in          time,  place,  or  manner  cases in  particular,  is  whether the          government  has  adopted  a   regulation  of  speech  because  of          disagreement  with the message it conveys."  Ward v. Rock Against                                                       ____    ____________          Racism,  491 U.S.  781, 791  (1989) (citation  omitted).   Even a          ______                                          10          regulation  that  does  not  choose  sides  or  otherwise  convey          disapproval of a particular message can run afoul of this dictate          because  the   "First  Amendment's  hostility   to  content-based          regulation extends . .  . to prohibition of public  discussion of          an  entire  topic."    Consolidated Edison  Co.  v.  Public Serv.                                 ________________________      ____________          Comm'n, 447 U.S. 530, 537 (1980); accord Simon & Schuster, 112 S.          ______                            ______ ________________          Ct. at 509.  This does not mean, however, that the sovereign must          steer  away  from  content at  all  costs,  or  else risk  strict          scrutiny.   "A regulation that  serves purposes unrelated  to the          content  of expression  is  deemed neutral,  even  if it  has  an          incidental effect on  some speakers or messages  but not others."          Ward, 491  U.S.  at 791;  see  also City  of  Renton v.  Playtime          ____                      ___  ____ ________________     ________          Theatres, Inc., 475 U.S. 41, 47-48 (1986).          ______________                    The subject of our inquiry here seems at first blush to          be the very model of a content-neutral regulation.  Article 4, by          its  terms, does  not  demand reference  to  the content  of  the          affected speech in  order to determine if the  ordinance applies;          the only  requisite reference  is to an  external characteristic:          whether the activity is licensed under one of several  particular          sections  of  state law.    Furthermore,  nothing in  the  record          suggests that Article 4 arose out  of an effort to suppress  some          particular message communicated  through Showcase's selection  of          motion pictures.  In  all events, any such forensic  fizgig would          be easily  defused, because the midnight  movies comprise exactly          the same fare that  appellant displays during the hours  when the          theater's operation is totally unaffected by Article 4.                                           11                    Faced with  so formidable a set  of barriers, appellant          hems  and  haws.   In the  end, it  theorizes  that Article  4 is          content-based  because,  while banning  licensed activity  in the          early  morning hours, the by-law  leaves untouched other forms of          expression, say, unlicensed entertainment, street demonstrations,          public speeches,  and candlelight  vigils.  In  appellant's view,          this  distinction  is driven  by a  value  judgment    the town's          conscious decision to place  less worth on licensed entertainment          than  on   unlicensed  entertainment      and   thus  constitutes          "irrational  discrimination  between  the  secondary  effects  of          prohibited and permitted forms of  expression based solely on the          charge of an admission fee."  Appellant's Brief at 26.                    As authority for this bold proposition, appellant cites          City  of Cincinnati v. Discovery  Network, Inc., 113  S. Ct. 1505          ___________________    ________________________          (1993).  We do not believe that the case can carry the cargo that          appellant piles upon it.  In Discovery Network, a city, motivated                                       _________________          by interests in both safety and aesthetics, imposed a categorical          ban on the distribution, via newsrack, of "commercial handbills,"          but   allowed  the   continued   distribution   of   "newspapers"          (containing primarily  noncommercial speech).    Id. at  1507-09.                                                           ___          This policy  clearly favored noncommercial speech over commercial          speech,  and, under  it, "whether  any particular  newsrack falls          within  the ban is determined  by the content  of the publication          resting  inside  that  newsrack."     Id.  at  1516.     On  that                                                ___          understanding,  the Court found the ban to be content-based.  See                                                                        ___          id.  at   1516-17.     In  so  holding,   the  Justices,   though          ___                                          12          acknowledging that the city had a legitimate interest in limiting          the  number  of  newsracks,  gave short  shrift  to  Cincinnati's          suggestion that the regulation was content-neutral because it was          born of a  desire to combat certain distasteful secondary effects          associated  with newsracks.   The Court contrasted  the case with          Renton,  explaining that  Cincinnati had  failed to  identify any          ______          "secondary   effects   attributable  to   respondent  publishers'          newsracks  that distinguish  them from  the newsracks  Cincinnati          permits to remain on its sidewalks."  Id. at 1517.                                                ___                    Appellant's reliance on  Discovery Network is  mislaid.                                             _________________          Whether Cincinnati's regulation applied to a  particular newsrack          was determined  by necessary reference  to the subject  matter of          the  specific  publications   contained  therein      a  telltale          harbinger of  content-based regulation.   Dedham's regulation  is          not  of this ilk; Article  4 applies without  reference to either          the content of the  entertainment or the communicative  impact of          any  speech.   Unlike  in  Discovery  Network, the  applicability                                     __________________          determination is  based  solely on  an external,  content-neutral          characteristic   the existence of an admission fee.                    To  rub  salt in  an  open  wound, appellant  not  only          misapprehends the import of Discovery Network, but also overreads                                      _________________          the Court's opinion.   The case does  not stand for the  sweeping          proposition that any differential treatment of speakers renders a                           ___          regulation content-based.  Instead, the Court's holding pivots on          the  conclusion that,  though  the city's  underlying purpose  in          enacting the ordinance was  proper, the differential treatment of                                          13          speakers had no  relationship to that  underlying purpose.4   See                                                                        ___          id. at 1517.  Thus, Discovery Network establishes a much narrower          ___                 _________________          proposition:  that, even when a municipality passes  an ordinance          aimed solely at the secondary effects of protected speech (rather          than  at speech per se), the ordinance may nevertheless be deemed                          ___ __          content-based if the municipality differentiates between speakers          for reasons  unrelated to the legitimate  interests that prompted          _________________________________________________________________          the regulation.   Cf. Carey  v. Brown,  447 U.S. 455,  465 (1980)          ______________    ___ _____     _____          (sustaining  challenge  to  statute  permitting  labor,  but  not          nonlabor, picketing, because "nothing in the content-based labor-          nonlabor distinction ha[d] any bearing" on the state's legitimate          interest in privacy).                    Here,  Dedham's stated  interest in enacting  Article 4          is,  and has been,  to reduce the number  of sources of potential          noise  and disturbance.5  Such an objective is plainly within the          office  of  municipal  government.    Accordingly,  the  relevant          question  reduces  to  whether   Dedham  has  offered  a  neutral          justification  for  the  differential  treatment  that Article  4          accords to purveyors of licensed entertainment, on the one  hand,          and purveyors of unlicensed entertainment, on the other hand.  On          the facts of  this case,  the question requires  us to  ascertain          whether there are any  secondary effects attributable to licensed                                        ____________________               4In  this regard,  it is interesting  that, as  applied, the          regulation outlawed only 62 newsracks while permitting over 1,500          others to remain  in service.  See Discovery Network,  113 S. Ct.                                         ___ _________________          at 1510.               5We discuss appellant's claim that Dedham's stated  interest          is illusory and-or pretextual in Part III(C)(1), infra.                                                           _____                                          14          (commercial) amusements that distinguish them from the unlicensed          (noncommercial) amusements that Dedham has left unregulated.  See                                                                        ___          Discovery Network, 113 S. Ct. at 1517.          _________________                    We answered  the same question in  a slightly different          setting in  Fantasy Book Shop, Inc.  v. City of Boston,  652 F.2d                      _______________________     ______________          1115 (1st Cir. 1981).  There, several adult bookstores challenged          the constitutionality of a municipal licensing ordinance (enacted          pursuant to Mass. Gen. L. ch. 140,   181, a statute referenced in          Dedham's  amended by-law)  on the  ground, inter  alia, that  the                                                     _____  ____          ordinance   treated   commercial  and   noncommercial  amusements          differently.  In response, we rejected                    appellant's argument that the statute and the                    ordinance  are   facially  underinclusive  by                    reason  of  their  failure  to  subject  non-                    commercial amusements to  the same  licensing                    requirements.   We think  a legislature could                    reasonably   conclude   that   non-commercial                    amusements    present    sufficiently    less                    likelihood   of  the   harms  sought   to  be                    prevented   to  justify   their  differential                    treatment.          Fantasy Book Shop, 652 F.2d at 1121 n.6 (offering examples).          _________________                    In the case  at bar,  we think it  self-evident that  a          legislative body might reasonably conclude that the frequency and          regularity of activity inherent  in an ongoing commercial venture          heighten the probability of  late-night disruptions and boost the          number of likely  participants.  The profit  motive itself, which          encourages   marketing   and   promotion   aimed   at   increased          consumption,  is the  surest  indicator  that,  where  commercial          amusements  operate, crowds  will  probably gather.   Hence,  the          distinction  drawn  by  Dedham between  licensed  and  unlicensed                                          15          entertainment  bears  a  rational relationship  to  the  specific          interests  cited by  it  in  enacting  Article  4.    It  follows          inexorably that, notwithstanding  the differential treatment that          the   by-law  gives   to  unlicensed   as  opposed   to  licensed          entertainment, it  cannot successfully be  condemned as  content-          based.                    2.    Targeting.    Warbling from  a  different  perch,                    2.    Targeting.                          _________          appellant  asseverates   that  Article   4  should   be  strictly          scrutinized because  it singles out,  and in that  sense targets,          Showcase's  midnight  movies.   This  asseveration  rests on  the          notion  that   strict  scrutiny   is  always  justified   when  a                                                ______          municipality  enacts  an  ordinance  that,  in  practical effect,          regulates  the  First Amendment  rights of  a  select group.   We          consider the notion misguided.                    In mounting its "targeting" offensive, appellant relies          primarily on Minneapolis Star  & Tribune Co. v.  Minnesota Comm'r                       _______________________________     ________________          of Revenue, 460 U.S. 575 (1983).  In Minneapolis  Star, the Court          __________                           _________________          struck down a state use tax on newsprint and ink, ruling that the          tax violated the First Amendment both because it "singled out the          press for  special treatment"  by taxing  newspapers in  a manner          "without parallel in  the State's  tax scheme," id.  at 582,  and                                                          ___          because it impermissibly "target[ed] a small group of newspapers"          within  the press  as a  whole, id.  at 591.6   In  reaching this                                          ___          result,  the  Court consigned  the  Minnesota  statute to  strict                                        ____________________               6Because the Minnesota tax exempted the first $100,000 worth          of  newsprint and ink used annually by each publisher, its burden          fell almost exclusively on large newspapers.                                          16          scrutiny, reasoning:                    When the State  singles out the press,  . . .                    the  political  constraints  that  prevent  a                    legislature from passing  crippling taxes  of                    general applicability are  weakened, and  the                    threat  of  burdensome  taxes becomes  acute.                    That threat  can operate as effectively  as a                    censor to check critical comment by the press                    . . . .          Id. at 585.  The Court added that "differential treatment, unless          ___          justified by  some special characteristic of  the press, suggests          that the goal of  the regulation is not unrelated  to suppression          of   expression,    and   such    a    goal   is    presumptively          unconstitutional."  Id.                              ___                    Before   attempting  to  transplant  the  teachings  of          Minneapolis  Star, it  is important  to recall  that, in  a later          _________________          case, the  Court revisited  the matter of  differential taxation.          See Leathers  v. Medlock, 499 U.S. 439  (1991).  There, the Court          ___ ________     _______          ruled that  Arkansas could extend its  generally applicable sales          tax to  cable television and satellite  services, while exempting          print media, without  offending the First  Amendment.  The  Court          refined  the  analysis  it   had  crafted  in  Minneapolis  Star,                                                         _________________          explaining  that targeting  engenders strict  scrutiny only  when          regulations (1)  single out the  press, (2) take  aim at a  small          group  of speakers,  or  (3) discriminate  on  the basis  of  the          content  of protected speech.  Id.  at 447.  Because the Arkansas                                         ___          tax measure avoided these  pitfalls   for example, there  was "no          indication"  that   Arkansas  "targeted  cable  television  in  a          purposeful attempt  to  interfere  with  . .  .  First  Amendment          activities,"  id. at 448    the Court concluded  that the statute                        ___                                          17          did not warrant strict scrutiny.                    It is  incumbent upon us  to inspect this  case through          the precedential prism of Minneapolis Star and Leathers.  Reduced                                    ________________     ________          to bare  essence, appellant's argument for  strict scrutiny based          on  targeting necessarily  rises or  falls on  the second  of the          three criteria identified by  the Leathers Court.  We  believe it                                            ________          falls, for Article 4 does not target Showcase either as a speaker          or as a business.                    By  its terms,  Article  4's  proscription on  activity          between  1:00 a.m.  and 6:00  a.m. applies  to a myriad  of other          First Amendment speakers, such  as persons who from time  to time          may hold licenses for concerts, dances, or plays.  And, moreover,          First Amendment  speakers are not the  only businesses prohibited          from  late-night   operation  in  Dedham;  there  is  substantial          evidence  in the record to support the town's contention that the          disputed  by-law is simply the latest in a progression of by-laws          designed  to ensure  that  commercial activities  do not  impinge          unduly on private,  residential life.7  In  this respect, Article          4 is more  akin to the tax in Leathers   an impost that the Court                                        ________          upheld because it was an extension of a generally applicable tax,          499 U.S. at 447   than to the tax in Minneapolis Star   an impost                                               ________________                                        ____________________               7For example, section 42 of  the town's revised by-laws,  as          amended  in  1976, prohibits  individuals  from  selling food  at          retail between 12:00 midnight  and 6:00 a.m.  Section  42A, added          to the by-laws in  1976 and thereafter revised slightly  in 1979,          proscribes the  sale of  virtually all retail  commodities except          fuel products between 12:00  midnight and 6:00 a.m.   Dedham also          has adopted  a by-law  forbidding the illumination  of signs  for          retail establishments during the same six-hour interval.                                          18          that  the Court struck down  because it was  "without parallel in          the State's tax scheme," 460 U.S. at 582.                    To cinch  matters, appellant's targeting  argument also          flies  in the  teeth of  the secondary  effects doctrine.   Under          appellant's  formulation, any  regulation that  has an  effect on          fewer than  all First  Amendment speakers  or  messages could  be          deemed  to be  a form of  targeting and thus  subjected to strict          scrutiny.    Yet   the  Supreme  Court  has  recognized   that  a          municipality  lawfully  may  enact   a  regulation  that  "serves          purposes unrelated to the content of expression . . .  even if it          has an incidental  effect on  some speakers or  messages but  not          others."  Ward, 491 U.S. at 791.                    ____                    Even   appellant's  most  vaunted  precedent  does  not          support its targeting argument.   In Minneapolis Star, the  Court                                               ________________          did not condemn all  regulations that single out First  Amendment          speakers   for  differential   treatment;   rather,   the   Court          acknowledged that certain forms  of differential treatment may be          "justified  by  some  special  characteristic"  of the  regulated          speaker.   460 U.S.  at 585.   Secondary  effects can  comprise a          special  characteristic  of  a  particular speaker  or  group  of          speakers.    Accordingly,  the   language  we  have  quoted  from          Minneapolis  Star comfortably  accommodates an  exception to  the          _________________          prohibition on  differential treatment  for regulations  aimed at          secondary effects, so long as the disparity is reasonably related                                          19          to a legitimate governmental interest.8                    In  sum,  appellant's  targeting  argument,   like  its          argument  about content  quality, fails  to furnish  a cognizable          basis  for invoking  strict scrutiny.   We,  therefore,  apply an          intermediate   level    of    scrutiny   in    considering    the          constitutionality of          Article 4.                         C.  Applying Intermediate Scrutiny.                         C.  Applying Intermediate Scrutiny.                             ______________________________                    Strict scrutiny aside, restrictions on the time, place,          and  manner of  protected  expression     and Article  4  plainly          qualifies as such  a restriction    should be  upheld so long  as          they are content neutral, closely tailored to serve a significant          governmental  interest,  and  allow  for  reasonable  alternative          channels  of communication.  See  Renton, 475 U.S.  at 50; Clark,                                       ___  ______                   _____          468 U.S. at 293.  Appellant  says that Article 4 fails to satisfy          any of these three criteria.  We do not agree.                    1.   Governmental Interest.  Dedham  maintains that the                    1.   Governmental Interest.                         _____________________          voters enacted Article  4 to "preserve peace  and tranquility for          Town  citizens during the late evening hours."  Such an interest,          in  the   abstract,  suffices   to   justify  a   content-neutral                                        ____________________               8Appellant's continued insistence that Article  4 unlawfully          targets  Showcase  because  it   was  conceived  in  response  to          complaints  about disruptions  incident  to the  midnight  movies          reflects a distorted view both of the  secondary effects doctrine          and of how a representative democracy functions.  An ordinance is          not called into constitutional  question because its enactment is          prompted  by non-speech-related  concerns (e.g.,  crime, traffic,                                                     ____          noise) stemming from the activity of a specific entity.  So here:          it works  no constitutional insult that  the community's concerns          about  the midnight movies acted  as a catalyst  that spurred the          passage of a generally applicable regulation.                                          20          restriction on  protected speech  (so long as  other requirements          are  met).   No  less an  authority  than the  Supreme  Court has          observed  that  government's "interest  in  protecting  the well-          being, tranquility, and privacy  of the home is certainly  of the          highest order in a free and  civilized society."  Carey, 447 U.S.                                                            _____          at 471.                    Appellant  concedes the  theoretical  validity  of  the          town's interest in preserving  peace and tranquility, but insists          that the record evinces a genuine question as to whether Dedham's          articulated  concerns,  such as  noise,  crime,  and litter,  are          founded in fact.   Going a step further, appellant  also contends          that  Dedham's asserted interest is pretextual,  and that a race-          based animus, instead  of a desire to promote serenity, motivated          the adoption  of the by-law.  The record fails to bear out either          of these claims.                                          a.                                          a.                                          __                    As an initial  matter, appellant asserts that  Dedham's          professed  governmental  interest   is  not  substantial  because          exhibiting  midnight   movies  did  not   adversely  affect   the          peacefulness  of  the community,  and,  therefore, the  secondary          effects at which Article 4 is  aimed are illusory.  We agree with          appellant's premise:   a governmental interest  woven exclusively          out  of the gossamer threads of speculation and surmise cannot be          termed substantial.  However, we  disavow appellant's conclusion:          the record before us consists of sturdier stuff and tells a story          that  strongly  supports Dedham's  stated  purpose.   We  canvass                                          21          certain key pieces of evidence.                    Before Article 4 was more than a gleam in its sponsors'          eyes,   numerous  citizens   had   complained  about   vandalism,          trespassing,  noise, and  late-night traffic  through residential          neighborhoods  (with  accompanying   disruption  from   headlight          glare).  On  January 19,  1989, Selectman Hoell  emphasized at  a          selectmen's meeting "his concern and the concern of the neighbors          in  the  area of  the Cinema  regarding  incidents at  the Cinema          during and after  the late showings  on weekends."   At the  same          meeting, Selectman Kehoe noted that she had "received calls  from          residents" complaining  about "many  incidents" at the  site, and          the  police chief, Dennis Teehan, reported  to the selectmen that          "[t]here have been numerous incidents happening in the area . . .          after the midnight shows let out."  At the February 2 selectmen's          meeting, several residents, including John Birda, Bob Zieman, and          John  Howard, complained  that appellant's  late-night operations          resulted  in  disruptions, such  as noise  in  the vicinity  of a          nearby  bus stop.   Additionally,  appellant acknowledged  in the          district  court  that,  between  February  2  and  April  6,  its          representatives "met with . . . Dedham residents on five separate          occasions,"  and that,  during these  meetings, it  "proposed and          developed plans to alleviate  any articulated concerns pertaining          to  traffic, noise and security at or around the Showcase Cinemas          complex."  Appellant's Complaint,   10.  Appellant then put these          plans (including, for example, a beefed-up police presence, added          patrols, and a litter-removal program) into effect at its expense                                          22             thus lending  a  patina  of  plausibility to  the  complaints.          Robert  Cedrone,   chairman  of   the  Poor  Farm   Committee,  a          neighborhood alliance, capsulized the situation, describing it in          the following terms at the April 24 Town Meeting:                    [There  are] more  people  coming out  of the                    late show cutting  through the  neighborhood,                    cutting  through  back  yards.   The  elderly                    people  still  can't get  used to  that, even                    with the extra police protection . . . .  The                    people in  this  neighborhood got  to  go  to                    sleep . . .  .  They're sleeping on  eggs out                    there.                    Appellant attempts to brush aside  these remonstrances.          Based on  information developed through an in-depth investigation          conducted in the course of litigation (and, therefore, well after          the  fact), it argues that the residents' complaints proved to be          phantoms, and that, therefore, Dedham  failed to carry its burden          of  establishing that  Article  4 actually  serves a  substantial          governmental interest.  In advancing this proposition,  appellant          in effect argues that a municipality cannot credit complaints and          other  evidence  related  to  past  problems  with  a  particular          activity  or   enterprise  unless   and  until  it   conducts  an          independent investigation and corroborates  each incident.  We do          not believe that local legislatures are so constrained.                    A legislative  body  can act  without  first  acquiring          irrefutable  proof.  In other words, lawmakers need not bury each          piece  of  described trash  before  acting to  combat  litter, or          confirm each  honking horn before  acting to abate  noise levels.          Instead, a legislative body, acting in furtherance of  the public          interest, is entitled to rely on whatever evidence it "reasonably                                          23          believe[s] to be  relevant to the problem" at  hand.  Renton, 475                                                                ______          U.S.  51-52.9    Here,  it seems  pellucid  that,  in  addressing          problems  of  crime,  litter,   and  noise  posed  by  late-night          commercial  entertainment activities, Dedham  had ample reason to          assume that the  collocation of  factors on display  at the  Town          Meeting   recurrent, wide-ranging complaints lodged by residents,          constabulary  concern with  a  pattern  of  incidents  reasonably          believed  to have occurred  in connection with  the exhibition of          midnight movies, and a commonsense realization that the placidity          of  a residential  community will be  jeopardized by  an activity          that  regularly draws  hundreds  of late-night  patrons, most  in          automobiles,  who must then depart  in the early  morning hours                                          ____________________               9Appellant reads  Renton with  an astigmatism bred  of self-                                 ______          interest.  To be  sure, as appellant suggests, the  Ninth Circuit          initially  found  the   city's  stated  justifications  for   the          ordinance  to be speculative because  the city enacted it without          the benefit  of any  studies relating  to the  city's "particular          problems or needs."   Renton, 475 U.S. at 50  (citation omitted).                                ______          But  the  Supreme Court  determined  that the  Ninth  Circuit had          "imposed  on the  city an  unnecessarily rigid burden  of proof,"          id., reasoning  that "[t]he  First Amendment  does not  require a          ___          city, before enacting such  an ordinance, to conduct  new studies          or  produce evidence  independent  of that  already generated  by          other cities, so long  as whatever evidence the city  relies upon          is reasonably believed  to be  relevant to the  problem that  the          city addresses,"  id. at 51-52.   To  the extent  it is  relevant                            ___          here, Renton stands for the  proposition that a municipality  may                ______          rely upon  the experience of other communities  in assessing, and          then  addressing,  particular problems.    It  neither holds  nor          suggests that a city  is debarred from using its  own experiences                                                       ____________________          for the same purpose.  See Ward, 491 U.S. at  800 (holding that a                                 ___ ____          city's  substantial   interest  in  limiting  sound   volume  was          satisfactorily  "evidenced  by  the  complaints  about  excessive          volume generated by respondent's past concerts").                                          24          were  relevant  to,  and  probative  of,  its  assessment  of the          problem.10   Consequently, we reject appellant's  contention that          Dedham's asserted governmental interest is a phantom.                                          b.                                          b.                                          __                    In addition to attacking  the credibility of the town's          anecdotal  evidence, appellant asserts that Article 4's "ulterior          purpose  is to  keep African  Americans out  of Dedham  . .  . ."          Appellant's Brief at 39.  This is a serious charge   and we treat          it  as  such.   Having  scoured the  record,  we  agree with  the          district court that the allegation stands unproven.                    In   support  of   the  accusation,   appellant  relies          principally  upon a  survey  purporting to  demonstrate that  the          audience   composition  for   Showcase's   midnight   movies   is          approximately 80% African-American as contrasted with an audience          composition  of  approximately  30%  African-American  for  other          screenings.   Appellant  buttressed the  survey results  with the          affidavit  of  the theater  manager,  Anthony  Pungitore, to  the          effect  that midnight movie  audiences have  been "predominantly"          African-American,  at  least  since  1986.   The  district  court          articulated an  abiding concern about the  relevance and validity                                        ____________________               10In respect to governmental  interest, the material fact is          whether  Dedham  had  adequate  reason to  act  upon  its  stated          concerns,  not,  as appellant  would  have  it, whether  Dedham's          concerns  were well-founded.  As  to the former,  the evidence is          overwhelming.    Hence,  the  lower  court  appropriately granted          summary judgment on this issue.                                          25          of  the survey  evidence,11 but  eventually accepted  it arguendo                                                                   ________          for  summary judgment purposes as probative of "the racial mix of          Showcase audiences."  National Amusements, 846 F. Supp.  at 1028.                                ___________________          Nevertheless,  the district  court  found the  record "devoid  of          evidence that race played a role in the decision to adopt the By-          law."  Id.  We reach the same conclusion.                 ___                    Even accepting appellant's assertion  as to the  racial          composition of  the midnight  movie audiences, appellant  has not          linked that fact  to the municipal decisionmaking  process.  That          is to say, appellant  cites no evidence that any  person involved          in the passage of Article 4 was aware at that time of the  racial                                                ____________          composition of Showcase's audiences.  This omission is fatal to a          claim of  intentional racial  discrimination.  See  Washington v.                                                         ___  __________          Davis,  426 U.S. 229,  240 (1976)  (elucidating "the  basic equal          _____          protection principle  that the invidious quality of a law claimed          to  be  racially discriminatory  must ultimately  be traced  to a          racially  discriminatory purpose"); Village  of Arlington Heights                                              _____________________________          v.  Metropolitan Housing  Dev. Corp.,  429 U.S.  252, 265  (1977)              ________________________________          (similar; rejecting claim that municipality's zoning decision was          racially discriminatory); cf. Personnel Adm'r v. Feeney, 442 U.S.                                    ___ _______________    ______          256,   279   (1979)   (explaining   that   the   requirement   of          discriminatory  purpose "implies  that  the decisionmaker  . .  .                                        ____________________               11The  survey results  were tabulated  by a  market research          firm  that appellant engaged for  several weeks in  the summer of          1993 (three years after the Town Meeting enacted Article 4).  The          surveyors noted  theatergoers' races, and asked  a representative          sampling  of  midnight movie  patrons,  of  all  races, why  each          individual chose to attend the late show.                                          26          selected  or reaffirmed a particular course of action at least in          part  `because of,' not merely `in spite of,' its adverse effects          upon on an identifiable group").                    Appellant  labors valiantly to  fill this  void, citing          statements from  various selectmen and town  meeting members that          are,  to appellant's  way of  thinking, code  words demonstrating          "institutional racism."   Appellant's Brief  at 41.   Typical  of          these comments  are Selectman  Kehoe's reference to  "these young          kids,  who don't  even  live in  Dedham,"  and Selectman  Hoell's          references to "nice  little out-of-towners" and "the  undesirable          element that's  attracted by  [Showcase's] activity."   But these          statements, if viewed  in the  most cynical light,  are at  worst          ambiguous.   Standing alone,  they are  insufficient to raise  an          inference  of racial animus.   The record  chronicles the lengthy          series of  events incident to the town's consideration of Article          4, and does not contain the slightest indication that the race of          theatergoers was an  issue.   To the contrary,  all the  evidence          supports Dedham's assertion that  Article 4 was aimed principally          at curbing  late-night disruptions.   Against this  backdrop, the          snippets that appellant has extracted  from the record with near-          surgical  precision simply do not support  an inference of racism          on the part of the legislative body.                    While the  summary judgment mantra requires  us to draw          every  reasonable  inference in  favor  of  the nonmoving  party,          inferences, to qualify, must  flow rationally from the underlying          facts;  that is, a suggested inference must ascend to what common                                          27          sense and human  experience indicates is  an acceptable level  of          probability.  Cf.  Dartmouth Review v. Dartmouth  Coll., 889 F.2d                        ___  ________________    ________________          13, 16  (1st Cir.  1989).   This means, of  course, that  a court          pondering a Rule 56  motion need not embrace inferences  that are          wildly improbable or that rely on "tenuous insinuation."  Mesnick                                                                    _______          v. General  Elec. Co., 950  F.2d 816, 826 (1st  Cir. 1991), cert.             __________________                                       _____          denied, 112 S. Ct. 2965 (1992).          ______                    This principle  is dispositive of appellant's  claim of          racial discrimination.   While ambiguous remarks  may, under some          circumstances, help to  illuminate the  summary judgment  record,          such remarks rarely will suffice to conceive an issue of material          fact when none otherwise  exists.12  As  we stated in Mesnick,  a                                                                _______          court  is   not  under   an  obligation  "to   draw  unreasonably          speculative inferences in mulling whether the plaintiff fulfilled          his  burden of adducing `specific  facts showing that  there is a          genuine  issue for trial.'"  Id. (quoting Liberty Lobby, 477 U.S.                                       ___          _____________                                        ____________________               12On this point, case law  in the age discrimination context          is  instructive.  In  that milieu,  courts frequently  have ruled          that  ambiguous remarks, without more, are not enough to raise an          inference  of an  employer's discriminatory  intent.   See, e.g.,                                                                 ___  ____          Thomure v. Phillips Furniture  Co., 30 F.3d 1020, 1025  (8th Cir.          _______    _______________________          1994) (employer's suggestion to  employee that he "might  want to          consider  retirement" rather  than  accept a  pay  cut found  not          probative of age discrimination);  Vega v. Kodak Caribbean, Ltd.,                                             ____    _____________________          3  F.3d 476,  481 (1st  Cir. 1993)  (supervisor's  statement that          company  sheltered   "no  sacred  cows"   insufficient  to  raise          inference  of  age  discrimination);  Mesnick, 950  F.2d  at  826                                                _______          (supervisor's comment that he was  "sad to lose the youth  of the          work  force" did  not,  by itself,  raise  an inference  of  bias          against older employees); Merrick v. Farmers Ins. Group, 892 F.2d                                    _______    __________________          1434,  1438-39 (9th  Cir. 1990)  (affirming summary  judgment for          employer despite  supervisor's comment that he  chose plaintiff's          replacement  because  the  latter  was  "a  bright,  intelligent,          knowledgeable young man").                                          28          at  256).    It follows  that,  "[e]ven  in  cases where  elusive          concepts  such as motive or intent are at issue, summary judgment          may  be appropriate  if  the nonmoving  party  rests merely  upon          conclusory  allegations,  improbable inferences,  and unsupported          speculation."   Medina-Munoz, 896 F.2d  at 8; see  also Manego v.                          ____________                  ___  ____ ______          Cape Cod Five Cents Sav. Bank,  692 F.2d 174, 177 (1st Cir. 1982)          _____________________________          (recognizing that, at the summary judgment stage, "smoke alone is          not enough to force the defendants to a trial to prove that their          actions were not [racially]  discriminatory"; a plaintiff must at          least identify "some  glowing embers").  So here:  asking a court          to infer, based on nothing more than the uncommunicated existence          of  a  predominantly  African-American  theater  audience  and  a          handful of  arguably ambiguous  statements,  that a  deliberative          body  of several hundred members acted out of a race-based animus          in passing  a  facially  neutral law  is  simply too  much  of  a          stretch.                    Because courts occupy a special place in our democracy,          they must be especially  careful not to succumb to  the merchants          of  conjecture.  Consequently, they must deal in facts as opposed          to  suspicions,  and  in   plausible  inferences  as  opposed  to          speculative suppositions.   Fidelity to this  ideal constrains us          to  rebuff appellant's  postulatory claim  that racial  animosity          paved the way for  Article 4's passage.   The record reflects  no          trialworthy dispute on this issue.                    2.  Narrow Tailoring.  Appellant complains that Article                    2.  Narrow Tailoring.                        ________________          4  is  not narrowly  tailored  because  it  affects all  licensed                                                              ___                                          29          entertainment,  irrespective  of  any  individualized  impact  on          crime,  noise, traffic, or trash.  The  irony of this position is          not lost upon  us:   appellant seemingly demands  in this  breath          that  Article  4 be  limited  to  Showcase  Cinemas  because  the          relevant secondary effects have been linked predominantly to that          entity,  yet in  an  earlier breath  denounced  such a  focus  as          impermissible  targeting, see  supra Part  III(B)(2).   We reject                                    ___  _____          this  anfractuous effort  to trap  Dedham  between the  Scylla of          narrow tailoring and the Charybdis of targeting.                    In Ward, the Court  explained that the narrow tailoring                       ____          requirement does not mandate  a least restrictive means analysis;          "[r]ather, the  requirement of  narrow tailoring is  satisfied so          long  as the . .  . regulation promotes  a substantial government          interest  that  would be  achieved  less  effectively absent  the          regulation."  Ward, 491 U.S. at 799 (internal quotation omitted).                        ____          Article  4  meets  that  test:     it  promotes  the  substantial          government interest of preserving tranquility   an interest that,          as Dedham's  past experience demonstrates, would  not be achieved          as effectively  absent the  regulation.   Nor  is the  regulation          rendered  infirm by  its  general applicability  to all  licensed          entertainment.   It is within a  legislature's legitimate purview          to  conclude that such secondary  effects as late-night noise and          traffic  are likely  to adhere  to all  commercial entertainment.                                             ___          Indeed, the very existence of a licensing scheme, with its built-          in emphasis on commercial amusements, supports  Dedham's decision          to enact a  generally applicable regulation.  See,  e.g., Fantasy                                                        ___   ____  _______                                          30          Book  Shop, 652 F.2d at  1121 n.6 (explaining  that a legislature          __________          may  regulate  licensed  entertainment   based  on  a  reasonable          likelihood that patrons would  create "excessive noise" or engage          in "disruptive or illegal conduct").                    3.   Alternate Avenues of  Communication.   Appellant's                    3.   Alternate Avenues of  Communication.                         ___________________________________          contention  that Article 4 is  invalid because it  does not allow          for  "ample  alternative  channels   for  communication  of   the          information," Clark,  468 U.S. at 293,  need not detain us.   The                        _____          record conclusively demonstrates that adequate alternatives exist          allowing appellant to communicate,  and audiences to receive, the          message  contained in the midnight  movies.  The  ban on licensed          entertainment affects  only five hours  out of each  24-hour day,          leaving appellant 19 hours  (or roughly 80% of each day) in which          to communicate  its  cinematic message.   Indeed,  the very  same          films  that can no longer be exhibited between 1:00 a.m. and 6:00          a.m. will still be shown an average of six times a day on Fridays          and  Saturdays, and will be exhibited  for roughly 13 hours a day          on the other five days of the week.                    Appellant  readily  acknowledges the  frequency  of its          exhibitions,  but nonetheless  argues  that the  ban on  midnight          movies forecloses the opportunity to communicate its message to a          distinct  segment of  the movie-going  public.   To  bolster this          argument,  it again retreats to  its survey.   The survey results          indicate that, out of  a random sampling of midnight  moviegoers,          14% said that they attended late shows because  they "had to work          late, and could only come to a late show," and 11% "felt that the                                          31          midnight show was the only entertainment option open to him/her."          From  these  somewhat  inscrutable  results,  appellant's  market          research firm concluded that:                    The   late  [midnight]   show  is   the  only                    opportunity that  the Theater has  to exhibit                    films in order to communicate with a distinct                    portion   of  its  patrons.    Showing  films                    earlier in the day  is not a viable means  of                    communication with this segment,  because, as                    indicated  by  the   survey  results,   these                    patrons are extremely unlikely  and/or unable                    to attend earlier shows.                    There are a slew of problems with appellant's analysis.          First,  the survey  is  not particularly  informative because  it          focuses  on  the  patrons'  options on  one  particular  night.13                                              __________________________          Thus,  patrons who identified the midnight  movies as their "only          entertainment option" or who said they "could only come to a late          show"  may well have been confining their answers to one specific          evening.     Questions   of  more   general  applicability   were          conspicuously lacking.  Hence, the wording  of the survey defeats          appellant's attempted reliance on it.                    Second, it is reasonable to assume that midnight movies          are commercially successful because  some people prefer to attend                                                           ______          them.  Yet, thwarting such  an idiosyncratic preference cannot be          equated  with  a denial  of  adequate  avenues of  communication.          Although Article  4 diminishes the total  quantity of appellant's          speech  in   some  measure,   and  simultaneously   curtails  its                                        ____________________               13For example, Question  No. 2 asked:  "Why did  you come to          the  `Midnight Show' tonight?"  (emphasis supplied).   Similarly,                               _______          Question No.  3 asked:    "If you  couldn't get  into the  movies          tonight,  what  other  entertainment  options  would  you  have?"          _______          (emphasis supplied).                                          32          opportunity to communicate with some patrons, those are necessary          side effects of  almost any  restriction on speech.   As long  as          restrictions are content-neutral, some diminution  in the overall          quantity of speech will be tolerated.  See, e.g., City Council of                                                 ___  ____  _______________          Los  Angeles v.  Taxpayers for  Vincent, 466  U.S. 789,  803, 812          ____________     ______________________          (1984)  (finding  ample   alternative  avenues  of  communication          despite  assumption that  the ordinance  "diminishe[d]  the total          quantity" of appellees' speech).                    In short, the lens of inquiry must focus not on whether          a degree  of curtailment  exists,  but on  whether the  remaining          communicative avenues  are adequate.   As  the Court  phrased it:          "That  the city's limitations on volume may reduce to some degree          the  potential   audience  for  respondent's  speech   is  of  no          consequence,  for there has  been no  showing that  the remaining          avenues of communication are inadequate."  Ward, 491 U.S. at 802.                                                     ____          Given 19  hours a  day within  which to  exhibit movies,  with no          special  limitations  on content,  appellant's evidence  does not          call  into  legitimate question  the  adequacy  of the  alternate          routes for communication.                                 D.  Recapitulation.                                 D.  Recapitulation.                                     ______________                    To recapitulate, Dedham has demonstrated, in conformity          with  the  protocol of  Rule 56,  that  Article 4  escapes strict          scrutiny.  Dedham has also  demonstrated that Article 4  survives          the lesser degree of  scrutiny that obtains here.   The municipal          by-law is designed to  serve a substantial governmental interest,          it is narrowly tailored  in the service of that  interest, and it                                          33          leaves  open  ample avenues  of  communication.   Therefore,  the          district  court did  not err  in granting  brevis disposition  on                                                     ______          appellant's ingenious collection of First Amendment initiatives.          IV.  MISCELLANEOUS CLAIMS          IV.  MISCELLANEOUS CLAIMS                    Appellant  makes several  additional claims,  one under          the  Due Process  Clause of  the United States  Constitution, one          intimating, albeit  somewhat obliquely, that Article  4 places an          unconstitutional condition on appellant's  entertainment license,          one involving overbreadth, and  the last under Article 16  of the          Declaration    of   Rights   contained   in   the   Massachusetts          Constitution.  These claims lack force.14                              A.  The Due Process Claim.                              A.  The Due Process Claim.                                  _____________________                    Appellant maintains  that  Dedham  did  not  afford  it          procedural due process in adopting Article 4.  Its rhetoric rings          hollow.                    As  an  initial matter,  we doubt  that the  concept of          procedural  due   process  is   applicable  in  respect   to  the          legislative  enactment  of  a  generally  applicable  statute  or          ordinance.   After all, procedural due process is a doctrine most          closely  associated  with  assuring  fairness in  regard  to  the                                        ____________________               14Appellant also hints  at a claim under the Takings Clause,          presumably on the theory that Dedham took its "valuable interests          in   exhibiting  midnight  movies"   without  just  compensation.          Appellant's  Brief at  45.    We  do  not  probe  the  point  for          appellant, by devoting a mere two sentences to the possibility in          its briefs, waived any such claim.  See, e.g., Ryan v. Royal Ins.                                              ___  ____  ____    __________          Co., 916  F.2d 731, 734 (1st  Cir. 1990) ("It is  settled in this          ___          circuit that  issues  adverted  to  on appeal  in  a  perfunctory          manner, unaccompanied by some developed argumentation, are deemed          to have been abandoned.").                                          34          enforcement  of laws  or  the  administration  of programs.    In          general,  then, the  doctrine bears  no relation  to the  initial          enactment  of   a  law.     See  Laurence   H.  Tribe,   American                                      ___                          ________          Constitutional  Law 664 (2d ed. 1988).  Indeed, the prospect of a          ___________________          legislative  body   being  required   to  afford  a   panoply  of          protections for all persons  who might arguably be affected  by a          forthcoming statute or ordinance would seem  to be a prescription          for parliamentary paralysis.                    In  reaching  this  conclusion,  we  follow  guideposts          erected by  the Supreme Court.  We  find particularly instructive          the  Court's  opinion in  Bi-Metallic Inv.  Co.  v. State  Bd. of                                    _____________________     _____________          Equalization,  239 U.S. 441 (1915),  a case that  arose after the          ____________          Colorado Board of Equalization promulgated a county-wide increase          in  property valuations for  tax purposes.   The petitioner there          adopted  much the  same position  that appellant  advocates here.          Thus, the Court  had to  decide "whether all  individuals have  a          constitutional right to be  heard before a matter can  be decided          in which  all are  equally  concerned."   Id.  at 445.    Justice                                                    ___          Holmes, writing for a  unanimous Court, after noting that  it was          "hard to believe  that the proposition was  seriously made," id.,                                                                       ___          rejected the due process requirement hawked by the petitioner:                    Where a rule of  conduct applies to more than                    a  few   people  it  is   impracticable  that                    everyone should  have a  direct voice  in its                    adoption. . . .   General statutes within the                    state power are passed that affect the person                    or property of individuals, sometimes  to the                    point  of ruin, without  giving them a chance                    to be  heard.  Their rights  are protected in                    the  only way that  they can be  in a complex                    society, by their power, immediate or remote,                                          35                    over those who make the rule.          Id.  In language  that we find appropriate  to our case,  Justice          ___          Holmes  concluded:  "There must be a limit to individual argument          in such matters if government is to go on."  Id.                                                       ___                    Appellant simply  ignores this  line of authority.   It          concentrates instead  on the fact  that the by-law  curtailed its          licensed  exhibition  of  films,  and  tries to  argue  that  the          curtailment entitled  it to  the same due  process guarantees  as          would have obtained had  Dedham revoked its entertainment license          altogether.   This is  an exercise in  sophism that fails  for at          least  two  reasons.   In  the first  place, the  by-law  did not          constitute a revocation of the license.  In the second place, the          record  makes  manifest that  the  town  afforded appellant  both          notice and an opportunity to be heard.                    Appellant  cites   Derby  Refining  Co.  v.   Board  of                                       ____________________       _________          Aldermen, 555 N.E.2d 584  (Mass. 1990), for the  proposition that          ________          Dedham could not lawfully enact Article 4 without first according          it  a full-scale  adjudicatory hearing.   Appellant  misreads the          opinion.   In Derby Refining,  the state court  held that certain                        ______________          types of licenses, once issued, "become[] a vested property right          of  the  licensee,  and may  be  revoked  only  when due  process          protections are complied  with."  Id. at  722.  Assuming for  the                                            ___          sake  of  argument  that  appellant  has  a  cognizable  property          interest  in its  license  to exhibit  motion  pictures, but  cf.                                                                   ___  ___          Roslindale Motor Sales,  Inc. v. Police  Comm'r, 538 N.E.2d  312,          _____________________________    ______________          314-15  (Mass. 1989) (holding  that motor vehicle  dealer did not                                          36          have a property interest in license to deal in used cars),  Derby                                                                      _____          Refining  is  nonetheless  inapposite because  the  enactment  of          ________          Article  4 cannot  be  considered a  revocation of  that license.                                               __________          Unlike the revocation of  a license   which results  in the total          cessation of  previously authorized  activities   Article  4 does          not  snatch  away appellant's  right  to  conduct the  authorized          activities, but merely  cuts back  the hours  during which  those          activities may be undertaken.   The entertainment license remains          intact.                    Appellant's  argument  also founders  because,  in this          instance,  the town  afforded  process equivalent  to that  which          would have been due  at a revocation  hearing.  The Town  Meeting          originally  passed Article  40,  Article 4's  progenitor, in  the          spring of  1989.   Before  putting  Article 40  to a  vote,  town          officials contacted appellant to discuss the residents' concerns.          Various  meetings were held.  On April 10, Pungitore, the theater          manager, attended the  Town Meeting and was given  an opportunity          to speak.   The desirability of  the ban was  reconsidered by the          Town  Meeting on April 24  for the express  purpose of "hear[ing]          the proponents and  opponents of  [the by-law]," and  to "give  a          fair chance to the businessmen of the community to put their side          of  the  story forward."   During  the  ensuing debate,  Towey, a          senior  officer of  National  Amusements,  spoke at  considerable          length against the proposal.   Later, after the Attorney  General          sidetracked Article 40, appellant received much  the same sort of          process in respect to Article 4.  For example, Towey attended the                                          37          November 6, 1989  Town Meeting at  which Article 4  was put to  a          vote,  participated  fully  in  the discourse,  and  delivered  a          lengthy  speech  urging  rejection of  Article  4.    No more  is          exigible.15                     B.  The "Unconstitutional Condition" Claim.                     B.  The "Unconstitutional Condition" Claim.                         ______________________________________                    To the extent appellant  suggests that Article 4 places          an unconstitutional condition on  its entertainment license,  the          suggestion is  without merit.   The doctrine  of unconstitutional          conditions  bars  government  from arbitrarily  conditioning  the          grant  of a benefit on  the surrender of  a constitutional right,          regardless of  the fact  that the government  appropriately might          have refused to grant the benefit at all.  See generally Kathleen                                                     ___ _________          M. Sullivan, Unconstitutional Conditions, 103 Harv. L. Rev. 1413,                       ___________________________          1415 (1989).                    Not  all  conditions  are  prohibited,  however;  if  a          condition  is germane   that is, if the condition is sufficiently          related to the benefit   then it may  validly be imposed.  In the          final analysis, "the legitimacy  of a government proposal depends          on the degree of  relatedness between the condition on  a benefit          and  the   reasons  why  government  may   withhold  the  benefit          altogether."  Id. at 1457 (footnote omitted); see also Posadas de                        ___                             ___ ____ __________                                        ____________________               15Appellant bemoans the lack of particular forensic devices,          such  as  cross-examination.    But even  in  license  revocation          proceedings proper,  such accouterments are  not constitutionally          required.  See, e.g., Chongris v.  Board of Appeals, 811 F.2d 36,                     ___  ____  ________     ________________          41-42  (1st Cir.)  (holding  that revocation  of building  permit          without  affording applicants  an  opportunity to  cross-question          witnesses is  not  a denial  of  procedural due  process),  cert.                                                                      _____          denied, 483 U.S. 1021 (1987).          ______                                          38          P.R.  Assoc.  v.  Tourism  Co.,  478  U.S.  328,  345-46   (1986)          ____________      ____________          (upholding Puerto  Rico's ban  on advertising casino  gambling to          Puerto Rico  residents because  "the greater power  to completely          ban  casino gambling  necessarily includes  the lesser  power" to          discourage  gambling  through  the  prohibition  on advertising).          "The  more germane a condition to a benefit, the more deferential          the  review; nongermane  conditions, in  contrast,  are suspect."          Sullivan, supra, at 1457.                    _____                    In  this  instance,  Article  4  easily  satisfies  the          requirement   of   germaneness.     Dedham's  power   to  license          entertainment as a means of  protecting public health and welfare          is closely related to the core purpose of Article 4, which, as we          have said,  is  to  preserve the  nighttime  tranquility  of  the          community.  Thus, while the ban on licensed entertainment between          1:00 a.m. and 6:00 a.m. may constitute a condition on appellant's          license, it  is germane  and, therefore, not  an unconstitutional          condition.                              C.  The Overbreadth Claim.                              C.  The Overbreadth Claim.                                  _____________________                    Appellant  attempts  to recast  its  "narrow tailoring"          argument, see supra Part III(C)(2), as an overbreadth attack.  It                    ___ _____          charges  that Article  4  is overbroad  because  it curtails  all                                                                        ___          licensed  entertainment,  including entertainment  that  does not          produce unwelcome secondary effects.  The challenge is baseless.                    To be  sure, appellant attempts to assert the rights of          others, but neither standing nor principles of jus tertii pose an                                                         ___ ______          insuperable  obstacle.    First  Amendment  overbreadth  doctrine                                          39          permits  "an  individual  whose  own  speech  or  conduct  may be          prohibited .  . . to challenge  a statute on its  face because it          also threatens others not before the court    those who desire to          engage  in legally protected expression  but who may refrain from          doing  so rather than risk  prosecution or undertake  to have the          law  declared partially  invalid."   Board of Airport  Comm'rs v.                                               _________________________          Jews  for  Jesus,  Inc.,  482  U.S.  569,  574  (1987)  (internal          _______________________          quotation omitted).  The  Supreme Court has limited the  sweep of          the overbreadth doctrine by  imposing "[t]he requirement that the          overbreadth  be  substantial."     Id.;  see  also  Broadrick  v.                                             ___   ___  ____  _________          Oklahoma, 413  U.S. 601,  615 (1973).   Consequently,  a "facial"          ________          overbreadth  challenge  will not  succeed  unless  "there [is]  a          realistic danger  that  the  statute  itself  will  significantly          compromise recognized  First Amendment protections of parties not          before the Court  . . .  ."  Taxpayers  for Vincent, 466  U.S. at                                       ______________________          801.                    Here, appellant has failed to  demonstrate that Article          4   is  overbroad,   let  alone   substantially  so.     Dedham's          preoccupation   with  licensed  entertainment  bears  a  rational          relationship to  its stated interests, see  supra Part III(B)(1),                                                 ___  _____          and appellant has cited  no examples of other licensees  who have          been harmed  by  the  by-law despite  the  absence  of  secondary          effects.  That  ends the  matter.  Although  Dedham likely  would          have  created overbreadth  concerns had  it attempted to  ban all                                                                        ___          First Amendment activity  between 1:00  a.m. and  6:00 a.m.,  cf.                                                                        ___          Jews For  Jesus, 482 U.S.  at 570-71, it did  not take so  bold a          _______________                                          40          step.   Rather, Dedham  chose a safer  path by focusing  on those          activities   commercial entertainment    most likely to result in          late-night disruptions.  The claim of invalidity must, therefore,          perish.                         D.  The State Constitutional Claim.                         D.  The State Constitutional Claim.                             ______________________________                    Appellant's complaint  contained a claim  that Dedham's          by-law  violated  the  Massachusetts Constitution.    In granting          summary judgment, the  district court finessed the merits  of the          state constitutional claim.  The  court noted that, in presenting          its arguments,  appellant had  not drawn any  distinction between          the  federal  and  state  constitutional  claims,16   and  ruled,          therefore, that appellant had forfeited any chance to  argue that          the Massachusetts Declaration  of Rights offers  broader freedom-          of-speech  protection than  the cognate  provisions of  the First          Amendment.  See National Amusements, 846 F. Supp. at 1032 n.12.                      ___ ___________________                    On appeal,  appellant concedes that it  treated the two          constitutional  provisions  identically in  the court  below, and          tells us that it did  so in the belief that the federal and state          constitutional protections for freedom of speech were coextensive          as  applied to  the exhibition  of motion  pictures.   Having had          second thoughts in light of the district court's holding that the          by-law does not  offend the First Amendment, appellant invites us                                        ____________________               16Despite the fact that Dedham moved for summary judgment on          all  claims,   appellant  relied   almost  entirely  on   federal          precedents  in  opposing  the  motion.   Indeed,  appellant  only          mentioned  Article 16  once  in its  memorandum in  opposition to          summary judgment,  citing it  for the uncontroversial  point that          movies are a form of protected expression.                                          41          to consider the omitted argument.  We decline the invitation.                    The short  of it  is that  appellant's change  of heart          comes  too late.   "It is hornbook  law that  theories not raised          squarely in the district  court cannot be surfaced for  the first          time on appeal."  McCoy v. Massachusetts Inst. of Technology, 950                            _____    _________________________________          F.2d 13, 22 (1st Cir. 1991) (collecting cases), cert. denied, 112                                                          _____ ______          S.  Ct.  1939 (1992).    We see  no  reason to  depart  from this          prudential rule  in the circumstances at  bar.  Given the  way in          which appellant  elected to present  its case below,  Judge Young          acted appropriately  in assuming,  for purposes of  his decision,          that   the  freedom-of-speech  protections   found  in   the  two          constitutions were coterminous.   Hence, the disputed ruling must          be upheld.   See Mesnick, 950  F.2d at 829  n.11 (holding that  a                       ___ _______          plaintiff whose complaint contained parallel claims under federal          and state antidiscrimination statutes, but who relied exclusively          on federal precedent in unsuccessfully opposing summary judgment,          could  not  argue on  appeal that  state  law was  more favorably          disposed to his claims).          V.  CONCLUSION          V.  CONCLUSION                    We need  go no  further.17   For the  reasons discussed          above, we  hold that Dedham's by-law,  prohibiting the exhibition          of motion pictures at  the town's only theater between  the hours          of 1:00 a.m. and  6:00 a.m., passes  First Amendment muster.   In          the  bargain,  it  also  survives appellant's  other  challenges.                                        ____________________               17To the  extent appellant has  raised or  alluded to  other          grounds  for  appeal, we  reject them  by  this reference.   None          requires comment.                                          42          Accordingly,  the order  of the  district court  granting summary          judgment in the town's favor must be          Affirmed.          ________                                          43
