JEFFERSON CITY, Mo.—First Amendment attorney J. Michael Murray tried his best during Wednesday's hearing before the Missouri Supreme Court on Ocello v. Koster, challenging state laws which ban nudity and alcohol in strip clubs, but it was clear almost from the outset that the most of the seven justices didn't have the ears to hear his well-founded arguments.
At issue were Senate Bills 586 and 671, which prohibit full nudity and alcohol in adult establishments, require businesses that allow semi-nude entertainment to close at midnight, and require that entertainers remain at least six feet away from customers at all times, and perform their acts on an elevated stage—all regulations designed to put such businesses out of business.
The appellants, which included mostly adult nightclubs, have made two main arguments: 1) that the 2010 law was adopted without proper legislative hearings being held on the fiscal impact of the regulations; and 2) that the lawsuit filed by the clubs, which was dismissed by summary judgment at the trial court level, should be resurrected in part because the trial court's ruling violates U.S. Supreme Court dicta in both Erie v. Pap's and more recently in City of Los Angeles v. Alameda Books.
The Alameda Books ruling was of primary importance in Murray's argument largely for Justice Anthony Kennedy’s concurrence with the high court majority, which set forth guidelines for dealing with the relationship between the content of sexual speech and the alleged secondary effects thereof—which Murray argued should have had a hearing before the trial court rather than to allow that lower court judge to decide the issues merely on both sides' pleadings.
"When this law went into effect on August 28 of last year, it has already proved devastating to the adult industry in Missouri," Murray began, "resulting in large-scale job losses, enormous loss of revenues, taxes—indeed, the outright closure of several outlets for this expression that were previously thriving businesses, and the threat that others will soon close, resulting in a massive reduction in the quantity and availability of constitutionally protected expression."
Murray then proceeded to point out that the Missouri Constitution requires that the legislature's Joint Committee on Legislative Research meet to consider the fiscal ramifications of the laws the legislature passed, but Justice Laura Denvir Stith, who had been appointed to the court in 2001 by Democratic Gov. Bob Holden, immediately challenged Murray regarding what that committee was required to do, suggesting that the committee wasn't even required to meet, much less deliver an opinion to legislators on pending legislation.
"The legislature had before it a lot of evidence such as you described, and Professor Linz's work also had a lot of contrary evidence," stated Justice Stith. "They made a determination. What is the basis on which you think we should re-look at that evidence, and what is the standard we apply?"
"Well, Your Honor," Murray responded, "under intermediate scrutiny ... under the Supreme Court's decision in Alameda Books, a plaintiff in our situation has a right to challenge the state's rationale in one of two ways: By either undermining the rationale, and showing that the evidence upon which the legislature relied is shoddy, or by introducing evidence that disputes the factual findings of the legislature, and that is something we have a right to do in court. ... We filed a complaint that had specific detailed allegations in support of these factual claims. We ultimately produced pretty voluminous evidence that demonstrates that we could support those claims."
But Justice Stith stated that merely producing evidence that the legislature was wrong in its beliefs about the "secondary effects" allegedly caused by the businesses was insufficient.
"You can't simply do it by showing, well, they could have come to a different result, and we think, rationally, they should have come to a different result," the justice retorted. "That is not sufficient because that would be stepping on the legislative prerogative."
Murray responded that he had multi-page affidavits showing that the adult businesses didn't cause the secondary effects the legislature claimed were the basis for passing the laws, and cited several other cases where the introduction of such evidence at trial caused the reversal of similar laws.
But Justice Stith didn't want to hear it.
"But Alameda Books and Renton [v. Playtime Theatres] do not require specific evidence," she responded. "They don't require the state of the city to show their regulation is effective. They're allowed to experiment and try regulations. They don't have to show—I know Dr. Linz likes comparative analysis, but no U.S. Supreme Court case has required that approach to be followed, or required a city or state to show that in fact the ordinance has the effect as opposed to that they reasonably believe it may and so they want to enact it to see if it will."
"But there is case law that says that in the face of local evidence to the contrary, plus expert testimony, that summary judgment in favor of the governmental entity is erroneously granted," Murray pointed out, "and that there must be a trial so that the court can make an independent determination of the constitutional facts and law that apply when you're talking about regulations of constitutionally protected speech."
Murray also told the justices that even the legislative record supports the appellants' claim that the laws are content-specific.
"The legislature in the statute said that they don't even care if the same adverse secondary effects apply in retail bookstores that don't sell the disfavored content, or in nightclubs that don't offer the disfavored entertainment," he said. "And we think that argument has been strengthened by the Supreme Court's decision in Brown v. Entertainment Merchants, decided in June of this year, which struck down a California statute prohibiting violent video games being disseminated to minors, and the court said it was wildly underinclusive because it didn't regulate cartoons, movies and other forms of media that were equally violent. And the court said underinclusiveness casts sufficient doubt on the real legislative purpose as to require strict scrutiny to be applied, and as to require in that case the statute to be struck down.
"Here we have the same thing," he continued. "The legislature says that even if all retail bookstores and all nightclubs cause adverse secondary effects, the only ones we're going to regulate are the ones that have the disfavored content, the erotic content, and the ones that have the favored content, non-erotic speech, will be left unregulated. We think that renders the statute unconstitutional and we also think that this recent decision by the Supreme Court helps us. Annex Books, for example, Your Honor, specifically said there has to be a comparative approach and you can't just single out businesses based on the content if they don't cause adverse secondary effects any different or greater than are caused by ... Barnes & Noble or other—in the case of nightclubs, bars and nightclubs that feature entertainment that isn't erotic. The Seventh Circuit said you've got to compare them."
Finally, in response to a question from Justice Stith, Murray made the point that the adult businesses' speech rights and economics are affected by the laws.
"They have to close at midnight; they can't exercise their constitutional right after midnight," Murray detailed. "They can't have any alcohol in their clubs. They have to abide by open-booth and open-manager-station requirements ... What I'm saying is that under Justice Kennedy's proportionality test, when you take the regulations and you determine what effect those regulations have on constitutionally protected speech, you have to come to the conclusion that they reduce secondary effects while leaving the speech substantially intact."
After Murray's time ran out, Deputy Attorney General Ronald Hollinger briefly argued the government's position, then turned the microphone over to the legislature's "hired gun," Scott Bergthold, author (and arguer-for) several boilerplate anti-adult zoning regulations that have been adopted by muncipalities around the country.
Holinger claimed that the Joint Committee on Legislative Research actually had no duties, and therefore its inaction couldn't be used as a reason to overturn the law; a position Bergthold expanded upon at length, then turned to the speech issues.
"The crux of this case is the legal standard to be applied to legislative bodies when they're considering regulations to address the negative secondary effects of sexually oriented businesses," Bergthold began. "The uniform case law from the Supreme Court of the United States is that that standard is that the legislature may rely upon any evidence that is 'reasonably believed to be relevant' to the secondary effects they address. The contours of what that standard includes are established by the case law. In other words, the Supreme Court's decisions that set forth the types of evidence that fall within the 'reasonably believed to be relevant' standard. What this standard includes is prior judicial decisions, crime reports, anecdotal testimony, land use studies and expert reports on both sides."
What that means, Bergthold said, is that "empirical proof is not required; scientific comparative analysis is not required," and he proceeded to dismiss the evidence presented by sociologist Dr. Dan Linz, who has written extensively on the unreliability of the plethora of secondary effects studies done by municipalities in the '80s and '90s and who himself has conducted numerous such studies using rigorous scientific principles—exactly what was missing from the earlier studies.
In other words, Bergthold's argument was that no matter what the evidence shows—or, in the case of secondary effects, doesn't show—is irrelevant as long as the legislature had some reason, no matter how "faith-based" and non-evidentiary, to believe that the regulations in question would reduce the claimed secondary effects of the clubs.
However, while admitting that Justice Kennedy's statements in Alameda Books allowed evidence of the lack of secondary effects to be argued, he avoided Justice Stith's question of whether that presentation had to be in court.
"Well, they can do it before the legislature, as they did in this case," Bergthold responded.
"But the important thing here is this: They never challenged the rationale of the legislature," he continued. "For example, nothing in Dr. Linz's materials says or even alleges that the six-foot rule is not a reasonably designed regulation to decrease the illicit sexual behavior that's documented in this record between strip club patrons and erotic dancers. ... Similarly, nothing in his materials even alleges that opening booths will not decrease the illicit sexual behavior that was documented in the record to be occurring in the Jefferson County, Missouri, peep show booths. ... He argues a separate rationale. He says that the government has to have empirical comparative analysis. In other words, he basically says that the legislative body cannot rely on the exact types of evidence that the Supreme Court has said are included within 'any evidence reasonably believed to be relevant' standard. ... There's no intimation, Your Honor, in Alameda Books that every regulation can be successfully challenged."
Bergthold then proceeded to cite numerous cases that he said supported the view that scientific evidence is not necessary for an anti-adult regulation to be upheld in court, which led Justice Stith to ask, "Say there'd been a hearing below, or we were to send it back down for a hearing, and all the evidence that opposing counsel is talking about came in; he presented evidence of a lack of effects; that they'd done a study in the neighborhood and found a lack of effects, and that they had other evidence that hours don't have anything to do with crime, and vending of alcohol doesn't reduce [sic] crime; are you still saying that the state should be entitled to judgment?"
"Your Honor, yes, only because within your question there's a premise that I would challenge," Bergthold responded. "Treat the pleadings ... as sort of a proffer of what they would put on at trial. There's still no answer to the legal decisions upon which we relied in the findings in the court cases and that alone. ... Dr. Linz's failure to address all those various categories of evidence is enough of proof of the secondary effects rationale. ... The only constitutionally-required rationale, and the one that Dr. Linz and all his proffer does not challenge is that the regulation will decrease secondary effects while allowing the actual speech—not necessarily unprotected activities like drinking alcohol—to continue, and in this case as well as in the 84 Video case, an Ohio statute that was upheld this morning by the Sixth Circuit, the actual speech continues and it goes unaffected while the reduction in secondary effects occurs during the overnight hours, during the physical touching between patrons and dancers and between closed booths that harbor illicit sexual behavior. The general assembly carefully toed the line, and under the 'any evidence believed to be relevant' standard, the judgment on the pleading should be affirmed, because while we accept their well-pleaded allegations, we do not accept legal conclusions or conclusory allegations of fact, and that's all that they have here."
"May it please the court, all of his arguments would go to the question of summary judgment, would go to the question of what should happen after a trial on the merits," Murray pointed out when it came his turn to respond. "We have judgment on the pleadings. We have well-pleaded allegations that say that these businesses locally in Missouri do not cause adverse secondary effects."
"But I think his point is that the legislature also had contrary anecdotal evidence and contrary specific studies, and it's not, as it normally would be, in a case for the trial court or the trier of fact to balance those and decide who's right," Justice Stith challenged. "If there is support for the legislative finding, we defer to it. We don't substitute our judgment. We don't decide which one's stronger. They can rely on a small amount of evidence, much smaller than the contrary, if that's what they find persuasive."
"Not according to the Supreme Court's decision in Alameda Books," Murray contradicted, "which says that the municipality's evidence must fairly support their rationale, and that if plaintiffs succeed in casting doubt on a municipality's rationale, either by demonstrating that the evidence doesn't support it or by furnishing evidence that disputes it, then the plaintiffs have succeeded in shifting the burden back."
But at least one other justice had trouble with the concept, opining that Murray's argument would lead to a court calling in the legislators as witnesses to relate what portions of the proffers they agreed with, and asked how that squared with the proposition that "each individual legislator is entitled to believe all, part or none of the testimony or evidence of any witness on either side of the case?"
"Because when you get to court, we're not questioning the legislative motives or intent," Murray answered. "What we're questioning is whether or not all of that evidence upon which they claim to rely, whether we can demonstrate through our pleadings and ultimately through evidence, that that evidence is shoddy, and that, for example, in Missouri, they're wrong; that as a matter of fact, we can disprove the contention that these businesses in fact cause adverse secondary effects ... I'm suggesting that there's a constitutional test here under the First Amendment that applies to a regulation that singles out speech based on its content and tries to justify that content-based distinction on the theory that that speech produces adverse secondary effects. The Supreme Court says that we have a right to come into court and put on evidence that challenges that underlying theory, and we certainly have a right to get beyond judgment on the pleadings."
When another justice brought up Bergthold's argument that Murray's evidence and witnesses hadn't refuted the court cases upon which Bergthold argued that the lower court could exclusively base its decision, Murray denied the validity of that view.
"We have refuted them because the judicial opinions that they rely upon, rely upon the underlying data that we have rebutted," he stated. "So for example, in the Erie case, the Pap's case, the anti-nudity, Justice O'Connor wrote the opinon and she presaged her opinion in Alameda Books. Here's what she said: 'Here, the plaintiff, Kandyland, has had ample opportunity to contest the city council's findings about secondary effects before the council itself, throughout the state proceedings and before this court, yet to this day, Kandyland has never challenged the city council's findings or cast any specific doubt on the validity of those findings.' And then, two years later, she wrote Alameda Books and outlined the ways that a plaintiff can make that showing, by either undermining the rationale offered by the state, or by furnishing evidence that disputes it, and then a court must decide, either at the summary judgment stage, if that's the appropriate point, or after a trial, as to whether or not the plaintiff has met its burden and if it has, as to whether or not the state, when the burden shifted back to them, supplemented the record with additional evidence to support their theory. But can't do it at judgment on the pleadings."
The sides battled back and forth for nearly 45 minutes, each side trying to make its points as completely and effectively as it could, but listening to the complete record makes it obvious that the clubs were facing at least one justice who had apparently already "decided the case on the pleadings."
Keep checking back with AVN.com for the Supreme Court's ruling, and what next steps the appellants may take in response to it.