                            RECOMMENDED FOR FULL-TEXT PUBLICATION
                                 Pursuant to Sixth Circuit Rule 206
                                        File Name: 08a0293p.06

                      UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT
                                      _________________


                                                        X
                                   Plaintiff-Appellee, -
 J.L. SPOONS, INC.,
                                                         -
                                                         -
                                                         -
                                                             No. 07-3178
           v.
                                                         ,
                                                          >
 NANCY J. DRAGANI, Acting-Director, Ohio                 -
                                                         -
                               Defendants-Appellants. -
 Department of Safety, et al.,

                                                         -
                                                        N
                          Appeal from the United States District Court
                        for the Northern District of Ohio at Cleveland.
                         No. 04-00314—Ann Aldrich, District Judge.
                                      Argued: March 18, 2008
                               Decided and Filed: August 15, 2008
                        Before: RYAN, SILER, and COLE, Circuit Judges.
                                        _________________
                                             COUNSEL
ARGUED: Robert J. Krummen, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellants. J. Michael Murray, BERKMAN, GORDON, MURRAY & DeVAN,
Cleveland, Ohio, for Appellee. ON BRIEF: Robert J. Krummen, William P. Marshall, Charles E.
Febus, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellants. J.
Michael Murray, BERKMAN, GORDON, MURRAY & DeVAN, Cleveland, Ohio, for Appellee.
        SILER, J., delivered the opinion of the court, in which RYAN, J., joined. COLE, J. (pp. 8-
14), delivered a separate dissenting opinion.
                                        _________________
                                            OPINION
                                        _________________
        SILER, Circuit Judge. Plaintiffs, a group of strip club owners in Ohio, challenged Ohio
Liquor Control Commission Rule 52 on First Amendment grounds. Enacted in 2004, Rule 52
provided that an establishment holding a liquor permit may not knowingly or willfully allow nudity
or sexual activity on its premises. The district court granted plaintiffs a temporary injunction against
enforcement of Rule 52. Later, it declared that parts of Rule 52 were unconstitutionally overbroad
and it permanently enjoined their enforcement anywhere in Ohio. Defendants now appeal, arguing
that Rule 52 is constitutional. We hold that Rule 52 is not overbroad and we REVERSE.


                                                   1
No. 07-3178                      J.L. Spoons, Inc. v. Dragani, et al.                                      Page 2


BACKGROUND
       The strip club owners challenge §§ (A)(2), (B)(2), and (B)(3) of revised Rule 52. The
challenged sections read as follows:
        (A) Definitions as used in this rule:
        (2) “Nudity” means the showing of the human male or female genital, pubic area or
        buttocks with less than a fully opaque covering, the showing of the female breast
        with less than a fully opaque covering of any part of the nipple and/or areola; the
        exposure of any device, costume, or covering which gives the appearance of or
        simulates the genitals, pubic hair, natal cleft, perineum, anal region, or pubic hair
        region; or the exposure of any device worn as a cover over the nipples and/or areola
        of the female breast, which device simulates and gives the realistic appearance of the
        nipples and/or areola.
        (B) Prohibited activities: no permit holder, his agent, or employee shall knowingly
        or willfully allow in and upon his licensed permit premises any persons to:
        (2) Appear in a state of nudity;
        (3) Engage in sexual activity as said term is defined in ORC Chapter 2907.
Sexual activity means “sexual conduct or sexual contact, or both.” ORC Chapter 2907. The
Ohio Revised Code defines “sexual conduct” as:
        vaginal intercourse between a male and female, anal intercourse, fellatio, and
        cunnilingus between persons regardless of sex; and, without privilege to do
        so, the insertion, however slight, of any part of the body or any instrument,
        apparatus, or other object into the vaginal or anal cavity of another.
        Penetration, however slight, is sufficient to complete vaginal or anal
        intercourse.
“Sexual contact” is defined as “any touching of an erogenous zone of another, including without
limitation the thigh, genitals, buttock, pubic region, or, if the person is a female, a breast, for the
purpose of sexually arousing or gratifying either person.” ORC Chapter 2907.
       In July 2000, the district court permanently enjoined enforcement of several sections of old
Rule 521, finding them invalid under the First and Fourteenth Amendments. As a result, the Ohio
Liquor Control Commission (“the Commission”) commenced proceedings for the enactment of a
new version of Rule 52. In September 2003, the Commission received evidence and testimony
regarding the validity of proposed new language for Rule 52. At this hearing, Mark Anderson,
Executive Director of the Commission, testified that the earlier version of Rule 52 had been
rescinded and that all of the filing requirements imposed by state law for the new version of Rule
52 had been met.
        The Commission heard extensive testimony from Bruce Taylor, an attorney from Fairfax,
Virginia. Throughout his career he prosecuted vice crimes, including obscenity, prostitution, and
liquor violations. He spoke at length about his understanding of precedent in this area and the
constitutionality of liquor regulations. He testified that “nude dancing does contribute to its own
types of secondary effects and to a greater degree than other liquor bars that don’t have nude
dancing.” Specifically, prostitution, drug trafficking, and fights occur more frequently in and around
bars that allow nude dancing than those that do not permit nude dancing. Taylor expressed his


        1
          The primary difference between the old and the new Rule 52 is that the old Rule 52 covered the showing of
electronically reproduced images depicting actual or simulated sexual activities.
No. 07-3178                   J.L. Spoons, Inc. v. Dragani, et al.                               Page 3


opinion that the language under consideration for the new Rule 52 would be held constitutional by
the courts.
         The new version of Rule 52 was finalized and filed on February 9, 2004. It was scheduled
to take effect on February 20, 2004. On February 20, the strip club owners filed suit after learning
of plans for enforcement agents to investigate strip clubs to determine compliance with Rule 52.
They claimed that the Rule 52 provisions concerning “nudity” and “sexual activity” were broadly
restrictive of protected expression. They sought a declaratory judgment that these sections were
unconstitutional and a permanent injunction barring their enforcement. The district court granted
the request for a temporary restraining order and scheduled a preliminary injunction hearing.
        At the preliminary injunction hearing, the plaintiffs called Dr. Judith Hanna, Ph.D., a cultural
anthropologist and sociologist who researches and writes about arts, dance, and society. She stated
that exotic and erotic dance has artistic value and conveys a range of potential messages. She also
discussed a variety of “mainstream” ballet, modern dance, and theater performances that allegedly
involve types of nudity and sexual contact that could be prohibited by Rule 52. The club owners
also presented testimony from Dr. Daniel Linz, Ph.D., a sociologist and psychologist, who stated
that his research showed no positive correlation between the presence of liquor-serving
establishments featuring nude or semi-nude dancing and the types of crimes cited by the
Commission in support of its decision to adopt Rule 52. Dr. Linz stated that in some cases there was
a negative correlation, meaning that nude dancing establishments actually decreased crime in the
surrounding community.
        The Commission then presented testimony from Scott Pohlman of the Ohio Department of
Safety in support of Rule 52. He described numerous occasions where he personally observed illicit
behavior in and around liquor-serving establishments that feature nude or semi-nude dancing. He
stated that Rule 52 was needed to limit illicit behavior.
        Following the hearing, the Commission agreed to refrain from enforcing Rule 52 until at
least April 1, 2004, in order to grant the district court enough time to enter a ruling on the strip club
owners’ motion for a preliminary injunction. On April 1, the district court granted plaintiffs’ motion
for a preliminary injunction against the Commission. It enjoined the defendants from enforcing
§§ (A)(2), (B)(2), and (B)(3) anywhere in Ohio. In January 2007, it granted plaintiffs a permanent
injunction and declared §§ (A)(2), (B)(2), and (B)(3) unconstitutionally overbroad. The district
court concluded that it could not sever the unconstitutional language from the regulation because
§§ (A)(2), (B)(2), and (B)(3) were overbroad.
ANALYSIS
        We review constitutional issues de novo. Vasha v. Gonzales, 410 F.3d 863, 872 (6th Cir.
2005). We find that Rule 52 is a constitutional, content-neutral regulation of the undesirable
secondary effects, including prostitution, drug trafficking, and assault, associated with nude dancing
in an environment serving alcohol. It is not overbroad.
Pap’s A.M.
       Rule 52 is almost identical to the regulation upheld by the Supreme Court in City of Erie v.
Pap’s A.M., 529 U.S. 277 (2000). While Pap’s A.M. involved a challenge on First Amendment
freedom of expression grounds, not an overbreadth challenge, a discussion of Pap’s A.M. is
necessary. In Pap’s A.M., the United States Supreme Court upheld a regulation making it “a
summary offense to knowingly or intentionally appear in public in a ‘state of nudity.’” Id. at 283.
The regulation had wording and definitions very similar to Rule 52.
No. 07-3178                  J.L. Spoons, Inc. v. Dragani, et al.                               Page 4


         The Court began its analysis by stating that while being “in a state of nudity” is not an
inherently expressive condition, nude dancing is expressive conduct and it falls within “the outer
ambit” of the First Amendment’s protection. Id. at 289. To determine what level of scrutiny
applies, a court must decide whether the state regulation is related to the suppression of expression.
Id. If the governmental purpose is unrelated to suppression of expression, then the regulation must
satisfy the less stringent standard from United States v. O’Brien, 391 U.S. 367, 377 (1968). Id. If,
on the other hand, the government interest is related to the content of the expression, the regulation
must be justified under a more demanding standard. Id.
        The Court held that government restrictions on public nudity, such as the one passed by Erie,
“should be evaluated under the framework set forth in O’Brien for content-neutral restrictions on
symbolic speech.” Id. If a law is a general prohibition on public nudity, then by its terms it
regulates conduct alone, not speech. Id. at 289-90. The ordinance at issue did not attempt to
regulate the primary effects of expression, i.e., the effect of the audience watching nude dancing,
but rather the secondary effects that impact the public health, safety and welfare. Id.
        The regulation must pass muster under the O’Brien standard: (1) the regulation must be
within the constitutional power of the government to enact, (2) the regulation must further an
important or substantial government interest, (3) the government interest must be unrelated to the
suppression of free expression, and (4) the restriction must be no greater than essential to the
furtherance of the government interest. Id. at 296, 301. The Erie regulation passed the O’Brien test.
First, Erie’s efforts to protect public health and safety were clearly within the police powers. Id. at
296. Second, the regulation furthered a substantial government interest because Erie found that
“lewd, immoral activities carried on in public places for profit are highly detrimental to the public
health, safety, and welfare, and lead to the debasement of both women and men, promote violence,
public intoxication, prostitution and other serious criminal activity.” Id. at 297 (quoting Erie’s
findings contained in Petition for Cert.). Erie did not need to carry out a study documenting these
effects and it did not need to develop a specific evidentiary record to support its ordinance. Id. at
298. It is self-evident that strip clubs cause public health and safety problems. Id. at 300-01. Third,
the government’s interest in suppressing the negative secondary effects of strip clubs was unrelated
to the suppression of free expression. Id. at 301. Finally, the restriction was no greater than was
essential because it only had a de minimis impact on the expressive element of nude dancing. Id.
The requirement that dancers wear pasties and G-strings is a minimal restriction that leaves ample
capacity to convey the dancer’s erotic message. Id.
Overbreadth
        Pap’s A.M. would be directly on-point and would decide the issue were it not for the fact that
the district court struck down Rule 52 on the grounds that it was overbroad, not that it violated the
First Amendment guarantee of freedom of expression under O’Brien. Pap’s A.M. did not address
an overbreadth argument. See 529 U.S. at 286 (stating that lower court did not reach the overbreadth
issue). The overbreadth doctrine prohibits the government from proscribing a “substantial” amount
of constitutionally protected speech judged in relation to the statute’s plainly legitimate sweep.
Virginia v. Hicks, 539 U.S. 113, 118-119 (2003). A finding that a law is overbroad “suffices to
invalidate all enforcement of that law, until and unless a limiting construction or partial invalidation
so narrows it as to remove the seeming threat or deterrence to constitutionally protected expression.”
Id. at 119 (internal quotations omitted). Overbreadth doctrine exists to allay the concern that the
threat of enforcement of an overbroad law may deter or chill constitutionally protected speech-
especially when the law provides criminal sanctions. Id. Many persons would refrain from
engaging in constitutionally-protected speech rather than risk case-by-case litigation of their rights,
putting them at substantial risk. Id. Thus the overbreadth doctrine exists to protect the marketplace
of ideas and reduce the social costs of withheld speech. Id.
No. 07-3178                  J.L. Spoons, Inc. v. Dragani, et al.                             Page 5


         However, “there comes a point at which the chilling effect of an overbroad law, significant
though it may be, cannot justify prohibiting enforcement of that law.” Id. This principle is
especially important when a law reflects the legitimate state interests in maintaining comprehensive
controls over harmful, constitutionally unprotected conduct. Id. Overbreadth doctrine creates
substantial social costs when it blocks application of a law to constitutionally unprotected conduct.
Id. “To ensure that these costs do not swallow the social benefits of declaring a law overbroad, [the
Supreme Court has] insisted that a law’s application to protected speech be substantial . . . relative
to the scope of the law’s plainly legitimate applications . . . before applying the strong medicine of
overbreadth invalidation.” Id. at 119-20 (internal quotations omitted). The overbreadth claimant
bears the burden of demonstrating from the text of the law and from actual fact that substantial
overbreadth exists. Id. at 122. We have emphasized that overbreadth doctrine is only to be used as
a last resort. Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291, 300 (6th Cir. 2008).
         The strip club owners cannot carry their burden to show that Rule 52 is substantially
overbroad. Nude dancing is protected by the First Amendment, but it is within the “outer ambit”
of the First Amendment’s protection. Pap’s A.M., 529 U.S. at 289. Rule 52 has a minimal impact
on the marketplace of ideas because persons desiring to perform mainstream works of art involving
nudity and sexual activity may do so in an establishment that is not licensed to sell liquor. In the
alternative, they may perform their works in an establishment licensed to sell liquor if they wear
clothing or pasties and a G-string and avoid sexual conduct or sexual contact. Ohio narrowly
defines sexual conduct to include vaginal intercourse, oral sex, and vaginal or anal penetration. The
prohibition against sexual contact applies only if the purpose of the contact is to arouse sexually or
to gratify either person. By its own terms, Rule 52 does not apply to contact done in furtherance of
legitimate works of art for the purpose of conveying artistic meaning, such as the touching of an
actor’s thigh in a play. Thus, mainstream works of art that merely suggest sexual activity will not
be burdened. Invalidating Rule 52 as overbroad would impose substantial societal costs because it
would hamper Ohio’s legitimate interest in curtailing the negative secondary effects, such as
prostitution and drug trafficking, associated with an environment mixing alcohol with nudity and
sexual activity. See Hicks, 539 U.S. at 119.
         The district court concluded that “numerous examples of mainstream theater and dance
which contain nudity and/or sexual contact,” such as Oh! Calcutta!, would be prohibited by Rule
52. However, such productions may still be held in venues that do not have a liquor license, or by
requiring the performers to wear pasties and a G-string and to avoid vaginal intercourse, oral sex,
and vaginal or anal penetration. See Pap’s A.M., 529 U.S. at 301 (“The requirement that dancers
wear pasties and G-strings is a minimal restriction in furtherance of the asserted government
interests, and the restriction leaves ample capacity to convey the dancer’s erotic message”). While
there may be legitimate artistic works that involve actors appearing in a state of nudity, “[b]eing in
a state of nudity is not an inherently expressive condition” that is protected by the First Amendment.
Id. at 289. Moreover, the First Amendment does not provide a right to engage in sexual activity in
public. The effect of Rule 52 on legitimate artistic works is incidental and does not call for the
“strong medicine” of overbreadth doctrine.
        Furthermore, a law is not invalid simply because some impermissible applications are
conceivable. New York v. Ferber, 458 U.S. 747, 772 (1982) (concluding that a New York statute
prohibiting possession of child pornography was not overbroad); see also Sensations, Inc., 526 F.3d
at 300 (upholding regulation banning total nudity in sexually oriented businesses because there was
no realistic danger that the statute would significantly compromise recognized First Amendment
protections of parties not before the court). In Ferber, the Supreme Court upheld against an
overbreadth challenge a statute criminalizing possession of child pornography even though it may
have reached some protected expression, such as medical textbooks and artistic works. 458 U.S.
at 773. The Court upheld the statute because it “seriously doubt[ed] . . . that these arguably
impermissible applications of the statute amount to more than a tiny fraction of the materials within
No. 07-3178                       J.L. Spoons, Inc. v. Dragani, et al.                                          Page 6


the statute’s reach.” Id. Here, analogizing to Ferber, any arguably impermissible application of the
statute to citizens engaged in artistic expression amounts to no more than a fraction of Rule 52’s
reach. Also, as in Sensations, there is no “realistic danger” that the regulation will “significantly
compromise recognized First Amendment protections of parties not before the [c]ourt” because there
is no constitutional right to appear in public in a state of nudity or engage in sexual intercourse in
public. 526 F.3d at 300.
         The district court relied heavily on Triplett Grille, Inc. v. City of Akron, 40 F.3d 129 (6th Cir.
1994), in striking down Rule 52 as overbroad. In Triplett Grille, we struck down as overbroad an
Akron ordinance banning public nudity. The city’s lawmakers testified that they enacted the
provision because of constituents’ moral outrage toward nude dancing. Id. at 131. No witness
testified that the prevention of prostitution or other illegal activity was the ordinance’s goal. Id.
Instead, lawmakers passed the ordinance to establish “a community standard” even though Akron
had never experienced any negative secondary effects commonly associated with nudity. Id. We
struck down the ordinance as overbroad:
         Because the City has failed to demonstrate a link between nudity in non-adult
         entertainment and secondary effects, we do agree with the district court that the
         Akron ordinance must be struck down as facially unconstitutional under the First
         Amendment overbreadth doctrine.
Id. at 135 (emphasis added). The public indecency ordinance prohibited all public nudity, including
live performances with serious literary, artistic, or political value. Id. at 136. Because the ordinance
covered expressive conduct with literary and artistic value that is not generally associated with
prostitution, sexual assault, or other crimes, it was overbroad. Id.
         Triplett Grille is distinguishable from the situation presented here and does not control.
First, in Triplett Grille, the city ordinance banned all public nudity in all public places. 40 F.3d at
131. However, Rule 52 bans public nudity only in establishments licensed to sell liquor. Therefore,
Rule 52 is much less restrictive and covers much less speech than did the regulation at issue in
Triplett Grille. Second, in Triplett Grille, the city enacted its ban because of constituents’ moral
outrage toward nude dancing, not concern over the negative secondary effects of nude dancing. Id.
Here, however, the Commission enacted Rule 52 out of a concern over the negative secondary
effects of nude dancing, not moral outrage. Moreover, the Pap’s A.M. Court rejected Justice
Souter’s concurrence in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581 (1991) (Souter, J.,
concurring), upon which the Triplett Grille court exclusively relied, 40 F.3d at 136, and held that
the proponent of a regulation did not need to carry out any study documenting secondary     effects and
it did not need to develop a specific evidentiary record to support its ordinance.2 Pap’s A.M., 529
U.S. at 299-300 (rejecting Justice Souter’s position that Erie should have conducted a study because
negative secondary effects are amenable to empirical treatment). Triplett Grille’s progeny are
similarly distinguishable. See, e.g., Hamilton’s Bogarts v. Michigan, 501 F.3d 644 (6th Cir. 2007);
Odle v. Decatur County, 421 F.3d 386 (6th Cir. 2005). Rule 52 is constitutional and the

         2
           While Barnes involved a First Amendment freedom of expression challenge to a regulation, not an overbreadth
challenge, 501 U.S. at 585 n.2, we nevertheless incorporated the reasoning of Barnes into our overbreadth analysis in
Triplett Grille. 40 F.3d at 136. Applying the rule from Marks v. United States, 430 U.S. 188 (1977), that the opinion
of the Justice concurring in the judgment on the narrowest grounds should be considered the Court’s opinion, the Triplett
Grille court relied on Justice Souter’s concurring opinion in Barnes for its holding. 40 F.3d at 133-36. Like Barnes,
Pap’s A.M. resulted in a plurality opinion on the merits of the case, although a majority of the Justices concluded that
the case was not moot. 529 U.S. at 282-83. Applying the Marks doctrine, we conclude that Justice O’Connor’s opinion
is the Court’s opinion because it was the narrowest opinion concurring in the judgment. Justice Scalia’s concurring
opinion, in which Justice Thomas joined, concluded that the case was moot and is therefore not the narrowest opinion
concurring in the judgment. Id. at 302 (Scalia, J., concurring). Thus, Pap’s A.M. modified Barnes, which underpinned
our reasoning in Triplett Grille.
No. 07-3178               J.L. Spoons, Inc. v. Dragani, et al.                       Page 7


Commission was not required to study the application of the ordinance to non-adult or “high-
culture” theater.
       REVERSED.
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                                        ________________
                                            DISSENT
                                        ________________
       COLE, Circuit Judge, dissenting. The Ohio Liquor Control Commission (“Commission”)
enacted Ohio Administrative Code § 4301:1-1-52 (“Rule 52”) in order to fight the negative
secondary effects resulting from the combination of liquor and nudity or sexual activity at nude-
dancing establishments. But instead of limiting the reach of Rule 52 to those establishments, the
Commission chose to “burn the house to roast the pig,” Butler v. Michigan, 352 U.S. 380, 383
(1957), by applying Rule 52 to all 25,000 liquor permit holders in the state of Ohio, and by failing
to exempt persons engaging in performances with literary, artistic, or political value. Because I
believe that Rule 52 is not reasonably restricted to its intended purpose and thus unconstitutionally
overbroad, I respectfully dissent.
        First things first. My colleagues and I agree on at least one significant matter—City of Erie
v. Pap’s A.M., 529 U.S. 277 (2000), has no bearing on this case. In Pap’s A.M., the Supreme Court
considered an ordinance enacted by the City of Erie, Pennsylvania, making it an offense to
knowingly or intentionally appear in public in a “state of nudity.” While a plurality of the Court
ultimately reversed the Pennsylvania Supreme Court’s decision to enjoin the statute, concluding that
the ordinance satisfied the four-part test established in United States v. O’Brien, 391 U.S. 367
(1968), the Court did not reach the question of the law’s overbreadth. See Pap’s A.M., 529 U.S. at
286. As the majority recognizes, this distinction is significant because there is little question, nor
do the plaintiffs even dispute, that Rule 52 as applied to nude-dancing establishments would be
constitutional. See id. at 296-302. But the question on appeal—indeed, the only question before
us—is whether Rule 52, as written, unnecessarily infringes upon First Amendment freedoms outside
of the permissible regulation of nude-dancing establishments.
        The answer to this question is where we respectfully part ways. I acknowledge that the
overbreadth doctrine should be considered “strong medicine” to be used “sparingly and only as a
last resort.” Broadrick v. Oklahoma, 413 U.S. 601, 613 (1973). But when a law criminalizes a
“substantial” amount of protected speech, “judged in relation to the statute’s plainly legitimate
sweep,” id. at 615, we must enjoin the enforcement of the law, “until and unless a limiting
construction or partial invalidation so narrows it as to remove the seeming threat or deterrence to
constitutionally protected expression,” id. at 613. This longstanding rule is rooted in the
“assumption that the statute’s very existence may cause others not before the court to refrain from
constitutionally protected speech or expression.” Id. at 612. See also Deja Vu of Nashville, Inc. v.
Metro. Gov’t of Nashville & Davidson County, Tenn., 274 F.3d 377, 387 (6th Cir. 2001). With that
in mind, I see three main problems with Rule 52.
        1. Rule 52 applies to substantially more venues than necessary. By issuing Rule 52, the
Commission intended to address the “undesirable secondary effects throughout the state of Ohio of
sexually oriented or adult businesses where alcohol was served”—namely, the increased presence
of drugs, prostitution, underage drinking, and inappropriate physical contact between dancers
and patrons, including assault. (Joint Appendix (“JA”) 302-03.) But instead of being
limited to those establishments, Rule 52 applies to all 25,000 privately owned and
operated manufacturers, distributors, and retailers of alcoholic beverages in the state
of Ohio.        See Dep’t of Liquor Control 2007 Annual Report, at 11, available at
http://www.com.ohio.gov/liqr/docs/liqr_2007AnnualReport.pdf.
        Of those 25,000 permit holders, about half are carry-out retail stores, and about half are
establishments that could potentially present live entertainment. Of those approximately 12,500
venues that could potentially present live entertainment, only 200 or so are venues which currently
No. 07-3178                  J.L. Spoons, Inc. v. Dragani, et al.                              Page 9


feature nude or semi-nude dancing. (JA 265, 283.) That means that about 12,300—or 98.4
percent—of alcohol permit holders in Ohio that potentially present live entertainment are needlessly
required to conform to Rule 52’s mandates.
        To illustrate the staggering breadth of Rule 52’s application, here is a sampling of the venues
affected: bars, restaurants, nightclubs, hotels, country clubs, convention centers, theaters, stadiums,
comedy clubs, concert halls, playhouses, ballet houses, and museums. In fact, the following venues
in Cleveland alone are subject to the Rule: the Amphitheater at Tower City, the Cleveland Museum
of Arts, the Cleveland Agora Theater and Ballroom, the Great Lakes Science Center, the Beachland
Ballroom, the Cleveland Play House Club, Jacobs Field, Gund Arena, the Cleveland Convention
Center, the Nautica Pavilion, the State Theater, the Playhouse Square Foundation, the Allen Theatre
at Playhouse Square, and Severance Hall. None of those venues have been identified by the
Commission as places where illegal narcotics are taken or distributed, and none are places where
prostitution is a recurring problem. But they are, however, places where constitutionally protected
speech might be prevented. This brings me to my second concern.
        2. Rule 52 affects a substantial number of artistic performances protected by the First
Amendment. Rule 52 prohibits any “permit holder, his agent, or employee [from] knowingly or
willfully allow[ing] in and upon his licensed permit premises any persons to: . . . (2) Appear in a
state of nudity; (3) Engage in sexual activity as said term is defined in Chapter 2907 of the Revised
Code.” Ohio Admin. Code § 4301:1-1-52(B). “Sexual activity,” in turn, is defined as “sexual
conduct or sexual contact, or both.” Ohio Rev. Code § 2907.01(C).
        There are two provisions that I find particularly troubling. First, “nudity” includes not only
the showing of male or female genitalia, pubic area or buttocks, or the female breast “with less than
a fully opaque covering,” but also “the exposure of any device, costume, or covering which gives
the appearance of or simulates” those body parts. Ohio Admin. Code § 4301:1-1-52(A)(2)
(emphasis added). So Rule 52 criminalizes any performance, whether a play, ballet, or musical,
which contains a fleeting scene involving the exposure of a female breast, even if a performer wears
a nudity-simulating device or costume giving the appearance of a female breast.
        Second, “sexual contact” is defined as “any touching of an erogenous zone of another,
including without limitation the thigh, genitals, buttock, pubic region, or, if the person is female, a
breast, for the purpose of sexually arousing or gratifying either person.” Ohio Rev. Code
§ 2907.01(B) (emphasis added). This carries a risk of enforcement against a variety of ballet and
dance performances, in which choreographers frequently require participants to “touch” the
“erogenous zones” of one another for the purpose of conveying a sexual message.
        Together, these two provisions prohibit on licensed premises any live entertainment that
contains even a brief scene involving simulated nudity or the touching of any erogenous zone, even
if the nudity or touching is integral to the narrative of the performance, and even if alcoholic
beverages are not being served during the actual performance. To name but just a few examples:
the buttocks of the dancing murderesses in Chicago, the jarring depiction of incest in the dance Big
Bertha, the rebellious nudity of the performers in Hair depicting the counter-culture of the 1960s,
the nudity of a woman staging a poetic battle as she dies of ovarian cancer in the Pulitzer Prize-
winning drama Wit, the dramatic portrayal of sexual assault in A Streetcar Named Desire, and the
nudity of a young man suffering from a psychological condition in Equus, recently popularized by
Daniel Radcliffe (more commonly known for his role as Harry Potter). Whatever one might think
of these performances—and we could disagree for years as to whether they should be considered
mainstream, independent, subversive, or some combination of the three—it simply does not matter:
in the eyes of the First Amendment, they are no less valuable than the famous works by Shakespeare
or Arthur Miller.
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        In short, Rule 52 does not apply only to nude dancing, which “falls only within the outer
ambit of the First Amendment’s protection,” Pap’s A.M., 529 U.S. at 289, but also to a variety of
“live entertainment, such as musical and dramatic works,” Schad v. Borough of Mount Ephraim, 452
U.S. 61, 65 (1981), that are entitled to the full protection of the First Amendment. See also Nat’l
Endowment for the Arts v. Finley, 524 U.S. 569, 603 (“Put differently, art is entitled to full
protection because our ‘cultural life,’ just like our native politics, ‘rest[s] upon [the] ideal’ of
governmental viewpoint neutrality.”) (citation omitted, alterations in original). This is true even if
those performances contain nudity or other sexual elements that some citizens might find offensive,
see Reno v. ACLU, 521 U.S. 844, 874 (1997), which brings me to my final concern.
       3. Rule 52 does not offer any limiting construction. As part of our analysis, we must
“consider any limiting construction that a state court or enforcement agency has proffered,” Village
of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.5 (1982), that can save
an otherwise unconstitutional statute by eliminating the statute’s substantial overbreadth, Virginia
v. Hicks, 539 U.S. 113, 119 (2003). If a statute is “readily susceptible” to a limiting interpretation
that would make it constitutional, the statute must be upheld, but “we will not rewrite a state law to
conform it to constitutional requirements.” Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383,
397 (1988).
        The Commission concedes that Rule 52 is not readily susceptible of any construction that
would exempt persons engaging in performances that have literary, artistic, or political value,
because it has no discretion in “pick[ing] and choos[ing] which permit holders” are subject to Rule
52’s requirements, and is duty-bound “to enforce it evenly and equally against all permit holders in
the state of Ohio.” (JA 254.) In fact, the only reason advanced by the Commission for not excluding
“legitimate high culture theater,” is because it would be impossible to “have a rule that would make
sense if you went through and tried to have exceptions for all sorts of things.” (JA 290-91.)
          The majority attempts to sidestep this issue by noting that “such productions may still be held
. . . by requiring the performers to wear pasties and a G-string.” Maj. Op. 5. But Pap’s A.M., upon
which my colleagues rely for this proposition, held only that the nude dancers at nude-dancing
establishments may be required to wear these devices because they are “a minimal restriction in
furtherance of the asserted government interests, and the restriction leaves ample capacity to convey
the dancer’s erotic message.” 529 U.S. at 301. No court, to my knowledge, has ever held that a
state may require “pasties” or “G-strings” for performances with serious artistic or literary value,
particularly when the state fails to assert a single interest for such a requirement.
         More to the point, Rule 52 prohibits not only actual nudity, but also “the exposure of any
device, costume, or covering which gives the appearance of or simulates” nudity, Ohio Admin. Code
§ 4301:1-1-52(A)(2), which would almost certainly include both the use of “pasties” or a “G-string.”
The result, according to the testimony of John Duvall, the then-Deputy Director of the Ohio
Department of Public Safety, is that a venue reading the plain language of Rule 52 “would []
discover that the language of the rule forbids it from presenting an artistic performance that has a
fleeting scene involving the exposure of a woman’s areola and nipple.” (JA 354.) If those venues
“wanted to be safe,” Duvall opined, “they would refrain from presenting that particular performance
[at all].” (Id.)
        The same can be said of the provision prohibiting “sexual contact.” While “sexual contact”
is limited to “touching . . . for the purpose of sexually arousing or gratifying either person,” Ohio
Rev. Code § 2907.01(B), there are a large number of contexts in which performers undertaking
constitutionally protected forms of expression might seek to convey a message with a sexual
No. 07-3178                        J.L. Spoons, Inc. v. Dragani, et al.                                          Page 11


component.1 At the very least, there is a high probability Rule 52 would be interpreted as
prohibiting the kinds of touching that commonly occurs in ballets, plays, or musicals. When Duvall
was asked whether those venues “would know they better not present the performance that would
be so interpreted or else they risk the possibility that they could be punished,” he admitted that they
should not. (JA 355.)
        True, as the majority points out, “the mere fact that one can conceive of some impermissible
applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.” City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984). But this does not mean
the speech must be presently ongoing. Because the overbreadth doctrine is designed “to prevent the
chilling of future protected expression,” Staley v. Jones, 239 F.3d 769, 779 (6th Cir. 2001) (emphasis
added), whether such performances have been put on in the past, or whether there are plans to do
so in the future, is irrelevant. See Odle v. Decatur County, 421 F.3d 386, 397 (6th Cir. 2005)
(“[N]either proof that an ordinance as currently applied has no unconstitutional effect, nor
assurances offered by the relevant local authorities that the ordinance will not be put to such an
effect in the future, constitute ‘constructions’ of the ordinance, as that term is ordinarily
understood.”). In any event, the Commission can hardly say that the application of Rule 52 to
serious theatrical performances is merely hypothetical, since it actually issued a citation against the
production of Oh! Calcutta! in the past. (JA 246, 290.)
        Perhaps most importantly, even if one believes that the impact on these performances will
be minimal, or that the state’s interest in preventing prostitution or distribution of illegal narcotics
is especially worthwhile, it is worth reemphasizing that Rule 52 burdens these performances without
any justification. Much of the Commission’s argument focuses on the relative insignificance of the
affected speech. I admit that Hair may not be “substantial” judged in relation to the entire spectrum
of protected activities under the First Amendment. But the overbreadth doctrine, limited as it may
be, requires us to judge Rule 52 “in relation to [its] plainly legitimate sweep.” Broadrick, 413 U.S.
at 615. With respect to nude or topless dancing at clubs or bars, an interest in limiting the harmful
secondary effects may justify the challenged provisions. With respect to ordinary theater and ballet
performances, concerts, and other artistic forms of entertainment, however, the Commission
provides “no evidence, no judicial opinion, and not even any argument [] to suggest that these
mainstream entertainments, to which it has conceded the restrictions apply, produce the kind of
adverse secondary effects that the state seeks to prevent.” Giovani Carandola, Ltd. v. Bason, 303
F.3d 507, 516 (4th Cir. 2002). Because Rule 52’s “plainly legitimate sweep” is extraordinarily
narrow compared to the breadth of the rule, it criminalizes substantially more speech than
constitutionally permissible.
         The foregoing observations are, in my view, sufficient to resolve the issue before us. But
I will add one more: Odle, 421 F.3d 386, controls the outcome of this case. In Odle, we invalidated
a county “ordinance prohibit[ing], among other things, nudity and the performance of a wide range
of arguably sexually suggestive acts in ‘public place[s] where intoxicating liquors [] are offered for
sale, served or consumed,” id. at 392 (citation omitted, alteration in original), as unconstitutionally
overbroad, because it “‘ma[de] no attempt to regulate only those expressive activities associated
with [the targeted] harmful secondary effects,’” id. at 399 (quoting Triplett Grille, Inc. v. City of
Akron, 40 F.3d 129, 136 (6th Cir. 1994)).
       Like Rule 52, the ordinance in Odle did not apply to every public venue, but instead only to
venues that sold or served alcohol. Id. at 388. Like Rule 52, the ordinance prohibited entertainment

         1
           It is also troubling that the prohibition on “sexual contact” applies to patrons as well as employees. Under Rule
52, a bar owner who witnesses a customer flirtatiously touching another customer, on any potentially “erogenous” part
of the body, including “the thigh,” must take affirmative steps to end this conduct, or risk a citation from the
Commission.
No. 07-3178                        J.L. Spoons, Inc. v. Dragani, et al.                                         Page 12


in which a performer “expose[s] . . . that area of the human breast at or below the top of the areola,
. . . his or her genitals, pubic area, buttocks, anus or anal cleft or cleavage,” or“give[s] the
appearance of or simulate[s]” those parts of the body. Id. at 394. And like Rule 52, the ordinance
prohibited “performance of acts or simulated acts” of certain physical contact in dramatic scenes
or dances that communicated messages of eroticism or sexuality. Id.
         Acknowledging that other courts have upheld statutes and ordinances banning nudity or
sexually suggestive conduct in a wide range of public places, we found “crucial” the fact that the
state liquor commission had produced no evidence that liquor-licensed establishments in general,
as opposed to those particular establishments that regularly present nude or semi-nude dancing,
caused the harmful effects of combining alcohol and nudity. Id. at 395-96. And because the
ordinance in Odle contained no exemptions for artistic or theatrical performance, “it reache[d] a
wide swath of public places,” id. at 395, and would therefore prohibit a “myriad [of] performances
that involve nudity or sexually suggestive content but to which the alleged harmful secondary effects
that purportedly motivated the passage of the ordinance do not attend,” id at 393. See also Triplett
Grille, 40 F.3d at 136 (striking down a public indecency ordinance as overbroad because the law
prohibited “all public nudity, including live performances with serious literary, artistic, or political
value,” which swept “within its ambit expressive conduct not generally associated with prostitution,
sexual assault, or other crimes”).
       My colleagues’ attempt to distinguish Odle falls short. To the best I can tell, Odle is
arguably different only in that (1) the ordinance applied to all public places and (2) the county
enacted the ordinance because of a moral opposition to nude dancing.
        As to the first, the ordinance in Odle applied to all public places where intoxicating liquors
were offered for sale, served, or consumed, whereas Rule 52 applies to all alcohol permit holders,
their agents, or employees. Although the ordinance in Odle defined “public places” broadly, 421
F.3d at 392 n.7, the alcohol limitation would seem to render the ordinance’s reach to exactly the
same places as Rule 52—namely, to venues with an alcohol permit. But even if it is true that the
ordinance in Odle applies to certain places where Rule 52 does not, the Odle court primarily focused
on the chilling of expressive performances involving nudity or sexually suggestive acts in2
mainstream theaters, the very same performances that I am concerned about today. Id. at 395-96.
        I find the latter distinction even less persuasive, because the question before us is not whether
Rule 52 is constitutional as applied to nude-dancing establishments. So for whatever reason the
county in Odle enacted the ordinance—whether it be on moral grounds or to reduce
prostitution—we can assume that the county had a legitimate justification. That, of course, is
irrelevant to the question of whether the ordinance sweeps within its reach a broad swath              of
expressive conduct not associated with the county’s identified undesirable secondary effects.3


         2
           Odle “[left] for another day the question whether strict scrutiny ought to apply to an ordinance that prohibits
not only nudity but also sexually suggestive acts performed while clothed,” and concluded that “intermediate scrutiny
requires (at least) proof that most establishments to which the challenged ordinance or statute applies are likely to spawn
harmful secondary effects if permitted to hold performances involving nudity and/or content that could reasonably be
viewed as sexually suggestive.” 421 F.3d at 394. Because I believe that Rule 52 similarly “‘reaches a substantial
number of impermissible applications’ relative to [its] legitimate sweep,” Deja Vu, 274 F.3d at 387 (quoting New York
v. Ferber, 458 U.S. 747, 771 (1982)), I also see no need to address this question.
         3
          I am uncertain how Justice Souter’s concurring opinion in Barnes v. Glen Theatre, Inc., 501 U.S. 560, 581
(1991), which involved an as-applied, not a facial overbreadth, challenge, is relevant to this analysis. Maj Op. at 6. Even
if a proponent of a regulation does not need to develop a specific evidentiary record to support its ordinance, this
conclusion does not remove the requirement that a statute must not criminalize a “substantial” amount of protected
speech in comparison to the “statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615. The Commission may
not need to develop an evidentiary record to show that the combination of alcohol and nude-dancing establishments
No. 07-3178                      J.L. Spoons, Inc. v. Dragani, et al.                                      Page 13


        Our recent decision in Sensations, Inc. v. City of Grand Rapids, 526 F.3d 291 (6th Cir. 2008),
does not change this analysis. Sensations involved the constitutionality of a municipal ordinance
“banning total nudity in sexually oriented businesses,” which, unlike Rule 52 and the ordinance in
Odle, involved a “far narrower [regulation] than . . . [one] applicable to the general public.” Id. at
300. In fact, Sensations demonstrates what I have been saying all along: that had the Commission
applied Rule 52 solely to nude-dancing establishments, the only establishments where the
undesirable secondary effects from combining nudity and alcohol have been identified, this would
be a significantly different case.
        The vast majority of our sister circuits, moreover, share this view. See Conchatta, Inc. v.
Miller, 458 F.3d 258, 266 (3d Cir. 2006) (invalidating as overbroad a liquor regulation that
prohibited “any lewd, immoral or improper entertainment,” because the regulation has a “chilling
effect on a wide range of . . . artistic, theatrical, and other non-adult entertainment venues”);
Carandola, 303 F.3d 507 (4th Cir. 2002) (finding a liquor regulation prohibiting any entertainment
that “simulates sexual intercourse or any other sexual act” as overbroad, because “the Commission
has offered nothing . . . to suggest that these mainstream entertainments . . . produce the kind of
adverse secondary effects that the state seeks to prevent”); Ways v. City of Lincoln, 274 F.3d 514,
519 (8th Cir. 2001) (striking down a liquor regulation that prohibited “sexual contact,” because the
ordinance “did not contain any exception for artistic venues”).
        When our sister circuits have upheld such statutes against overbreadth challenges, those
statutes have specifically exempted those performances I speak of. See Giovani Carandola, Ltd. v.
Fox, 470 F.3d 1074, 1083-84 (4th Cir. 2006) (finding a similar statute not overbroad because it
exempted “theaters, concert halls, art centers, museums, or similar establishments”); Farkas v.
Miller, 151 F.3d 900, 905 (8th Cir. 1998) (upholding an application of a public nudity statute
because the statute included an exception for “a theater, concert hall, art center, museum, or similar
establishment . . . primarily devoted to the arts or theatrical performances”); J&B Entm’t v. City of
Jackson, Mississippi, 152 F.3d 362, 366-67 (5th Cir. 1998) (exempting4 persons “engaged in
expressing a matter of serious literary, artistic, scientific or political value”). By holding otherwise,
the majority has set itself apart from nearly every other court to consider an overbreadth challenge
to a similar statute or regulation.
         The Commission reminds us time and time again that the state has a strong interest in
regulating the negative secondary effects associated with nudity and sexual activity in nude-dancing
establishments. I don’t have any problem with that. But the state’s interest in regulating those
effects does not explain its interest in stopping a playhouse with an alcohol permit from presenting
a ballet with a brief scene simulating nudity. Maybe there is some negative effect that I am unaware
of, or maybe the Commission has some special insight in this area. Whatever the reason, no
one—not the district court, not the majority, and certainly not the Commission—has brought such
an interest to our attention.
        When the government restricts constitutionally protected speech for some legitimate purpose
unrelated to the content of the speech in question, we pause for concern. See Pap’s A.M., 529 U.S.
at 289 (“If the governmental purpose in enacting the regulation is unrelated to the suppression of
expression, then the regulation need only satisfy the ‘less stringent’ standard from O’Brien for


produce undesirable secondary effects, but it must not criminalize protected speech (in this case, a performance with
serious artistic or literary value) that has absolutely no relationship to the identified harms.
        4
          The trio of cases upon which the Commission relies—Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F.3d
993 (11th Cir. 1998); Ben’s Bar, Inc. v. Vill. of Somerset, 316 F.3d 702 (7th Cir. 2003); and BZAPS, Inc. v. City of
Mankato, 268 F.3d 603 (8th Cir. 2001)—miss the boat. All three address the question of whether a similar regulation
would be constitutional as applied to nude-dancing establishments, but none involve an overbreadth challenge.
No. 07-3178                  J.L. Spoons, Inc. v. Dragani, et al.                             Page 14


evaluating restrictions on symbolic speech.”). When the government restricts constitutionally
protected speech for some legitimate purpose relating to the content of the speech, we give it our full
attention. See id. (“If the government interest is related to the content of the expression, however,
then the regulation falls outside the scope of the O’Brien test and must be justified under a more
demanding standard.”). But when the government restricts constitutionally protected speech without
any justification whatsoever, loud alarm bells should sound off in our heads. Because I see Rule 52
as a regulation that fits squarely into this last category, I respectfully dissent.
