WASHINGTON, D.C. - The U.S. Supreme Court on Tuesday denied without comment the petition for certiorari filed by Daytona Grand, Inc., dba Lollipop's Gentlemen's Club, leaving in place the Eleventh Circuit decision filed on June 28, 2007 denying the club any relief from the City of Daytona's oppressive zoning ordinances.
Lollipop's had argued in district court that Daytona's ordinances 81-334, 02-496 and 03-375, which variously consigned adult businesses to industrial areas of the city and limited the amount of skin that could be shown in adult cabarets, were too restrictive, in that Daytona had provided too few locations where adult businesses could locate, had failed to grandfather in Lollipop's under the later ordinances, and failed to state any reasonable basis for the anti-nudity provisions.
The district court had granted summary judgment to the city on the claims of insufficient adult business locations and the non-grandfathering of Lollipop's, but "but concluded that there was a genuine issue of material fact about whether the three nudity ordinances furthered a substantial government interest," according to the Eleventh Circuit opinion, authored by Judge Marcus.
"Thereafter, at a six-day bench trial," Judge Marcus continued, "Lollipop’s presented expert testimony in an effort to cast direct doubt on the City’s rationale for enacting the nudity ordinances. The experts explained at trial that they had conducted two empirical studies using data provided by the City. They concluded based on the data they examined that adult theaters in Daytona Beach had no statistically significant effect on crime rates, and that the City’s evidence offered to the contrary was 'shoddy' and 'meaningless.'"
In fact, the trial court had minced no words as to Daytona's anti-adult bias in its evidentiary failures, which included the city's "evidence" presented through post-trial motions:
"Plaintiffs have succeeded in their attempt to cast direct doubt on the City’s rationales for its ordinances," wrote the trial court. "As persuasively demonstrated by Plaintiffs’ expert studies, the City’s pre-enactment evidence consists either of purely anecdotal evidence or opinions based on highly unreliable data. Most notably, the City’s evidence lacks data which would allow for a comparison of the rate of crime occurring in and around adult entertainment establishments with the rate of crime occurring in and around similarly situated establishments. Absent the context that such a comparison might provide, the City’s data is, as Plaintiffs assert, 'meaningless.'"
In overturning the district court's decision, the Eleventh Circuit drew its own "expressive conduct" test in Peek-A-Boo Lounge v. Bradenton, which was based on the intermediate scrutiny standard established in United States v. O'Brien in 1968:
"According to this test, public nudity ordinances that incidentally impact protected expression should be upheld if they (1) are within the constitutional power of the government to enact; (2) further a substantial governmental interest; (3) are unrelated to the suppression of free expression; and (4) restrict First Amendment freedoms no greater than necessary to further the government’s interest."
However, even while recognizing that O'Brien requires that "a city must establish that the challenged ordinance furthers a substantial government interest," and that "a city bears the initial burden of producing evidence that it relied upon to reach the conclusion that the ordinance furthers the city’s interest in reducing secondary effects," the Eleventh Circuit saw fit to throw the plaintiffs' experts' studies out the window, ruling instead that, in words taken from the Pap's opinion, "[A] municipality may rely on any evidence that is reasonably believed to be relevant for demonstrating a connection between speech and a substantial, independent government interest."
"If plaintiffs succeed in casting doubt on a municipality’s rationale in either manner, the burden shifts back to the municipality to supplement the record with evidence renewing support for a theory that justifies its ordinance," the court recognized (since it had previously said it in Peek-A-Boo Lounge). However, "Although the burden lies with the municipality, a court 'should be careful not to substitute its own judgment for that of the [municipality,]' and the municipality’s 'legislative judgment should be upheld provided that [it] can show that its judgment is still supported by credible evidence, upon which [it] reasonably relies," wrote Judge Marcus, again quoting from Peek-A-Boo Lounge.
In other words, it didn't matter that Daytona had been unable to cast any doubt on the studies conducted by plaintiffs' experts that Lollipop's generated no more crime than non-cabaret bars – or even convenience stores, for that matter – in the area; as long as the Daytona councilpersons believed that Lollipop's caused crime, based on whatever outdated studies from far-flung districts they claimed to rely upon, that was enough for the Eleventh Circuit to uphold the anti-nudity ordinance.
"Here, Lollipop’s argument that the City’s evidence is flawed because it consists of 'anecdotal' accounts rather than 'empirical' studies essentially asks this Court to hold today that the City’s reliance on anything but empirical studies based on scientific methods is unreasonable," Judge Marcus wrote. "This was not the law before Alameda Books, and it is not the law now."
"To be sure, as the Alameda Books plurality admonished, the City cannot 'get away with shoddy data or reasoning,' and its evidence must 'fairly support' its rationale," the Eleventh Circuit continued. "But this is simply another way of saying that the City’s reliance on evidence supporting its rationale must be reasonable. Anecdotal evidence is not 'shoddy' per se. At most, Lollipop’s experts’ studies suggest that the City could have reached a different conclusion during its legislative process about the relationship between adult theaters and negative secondary effects. But demonstrating the possibility of such an alternative does not necessarily mean that the City was barred from reaching other reasonable and different conclusions."
This "logic" flies in the face of the U.S. Supreme Court's ruling in Daubert v. Merrell Dow Pharmaceuticals, where the high court required that, "under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable," and that "The subject of an expert's testimony must be 'scientific... knowledge,'" and defines "scientific" as being "ground[ed] in the methods and procedures of science," and "knowledge" as "connot[ing] more than subjective belief or unsupported speculation."
Clearly, the Eleventh Circuit's opinion did not meet that standard, but rather relied on the very "junk science" disparaged in Daubert, and the Supreme Court should have granted Lollipop's petition in order to set them straight. Sadly, it did not.
At press time, the attorneys involved in the case were not available for comment.