Tuesday, November 15, 2011

Ocello v. Koster[1]

Opinion handed down November 15, 2011
Link to Mo. Sup. Ct. Opinion

A group of adult oriented businesses and Missouri residents challenged recent additions to the Missouri statutes that restrict certain kinds of sexually oriented businesses. The Supreme Court of Missouri, taking the appeal directly from a judgment on the pleadings for defendants at the trial court level, upheld the regulations as reasonable, content-neutral time, place, and manner restrictions that were consistent with U.S. Supreme Court precedent.

I. Facts and Holding

Michael Ocello, along with other Missouri residents and businesses, appealed a trial court's judgment on the pleadings against the plaintiffs' challenge to the validity of sections 573.525 to 573.540 of the Revised Statutes of Missouri.[2] The challenged sections concern regulations on Missouri's sexually oriented businesses.[3] Plaintiffs challenged provisions banning nude dancing in public, requiring a six-foot buffer zone between semi-nude dancers and customers, prohibiting alcohol in sexually oriented businesses, limiting such businesses' hours of operation, and requiring viewing booths in such businesses to remain visible to a central operator.[4] The plaintiffs appealed the lower court's ruling on both substantive and procedural grounds.[5]

The plaintiffs argued the challenged regulations violated First Amendment speech protections.[6] Further, they argued that the legislature, in passing the bill that enacted the challenged provisions, failed to follow legislative procedure regarding the fiscal note of the bill, thus rendering the bill itself void.[7] Judge Laura Denvir Stith, writing for a unanimous court,[8] rejected both arguments.[9]

A. Procedural Challenge

In their procedural argument, the plaintiffs initially challenged the bill by arguing that because the Missouri Constitution required the creation of a joint committee on legislative research[10] that had statutorily-assigned duties regarding fiscal notes for bill, “any failure to properly and fully carry out duties assigned to the Committee by the legislature constitutes a failure to fulfill a constitutional duty, and, necessarily, voids any legislation so passed.”[11]

The court, however, found that a failure to follow a statutory provision was not the same as a constitutional failure, adding that “the Missouri Constitution does not require fiscal notes or address how they should be prepared.”[12] The court, reading the Missouri Constitution's provision on the legislative committee narrowly, found that the constitution required only the creation of the committee for an advisory role.[13] According to the court, the constitution did not require the committee’s statutorily assigned duties rise to the level of constitutional requirements, as allowing such duties to do so “would permit the legislature to amend the constitution with a statute.”[14]

B. First Amendment Challenges

The plaintiffs’ substantive challenges to the provisions revolved around two distinct arguments. First, they challenged the provisions as content-based restrictions on sexually oriented speech that should be examined under strict scrutiny.[15] Further, the plaintiffs argued, the challenged provisions also failed under intermediate scrutiny because the “provisions reduce protected speech and do not serve [a] substantial government interest in reducing the negative secondary effects of sexually oriented businesses.”[16]

The court found the restrictions were content-neutral limitations aimed at curbing “negative secondary effects of sexually oriented business on the health, welfare and safety of Missouri residents.”[17] Applying intermediate scrutiny, the court determined the limitations to be reasonable time, place, or manner restrictions that could be reasonably believed to suppress such effects.[18]

The court analyzed the text of the Act that instituted the challenged regulations, noting that the stated purpose sought only to reduce negative secondary effects, rather than ban sexually oriented businesses.[19] Citing the General Assembly's findings expressed in the Act's preamble, the court found that “[t]he Act states that its purpose is to provide 'content neutral' time, place and manner or comparable restrictions on sexually oriented businesses so as to limit their secondary effects; therefore, it is subject to intermediate rather than strict scrutiny.”[20]

The plaintiffs challenged as content-based the Act's decision to focus on sexually oriented businesses regardless of whether other kinds of businesses might also have negative secondary effects.[21] However, the court found that “a legislative body may choose which evil to regulate first and 'need not strike at all evils at the same time or in the same way.'”[22] The court likewise dismissed concerns that a General Assembly member's disparaging remarks toward sexually oriented businesses was evidence of a legislative attempt to suppress speech, noting that “[w]hat motivates one legislator to make a speech about a statute is not necessarily what motivates scores of others to enact it[.]”[23]

Turning to whether the challenged provisions constituted reasonable time, place, or manner restrictions, the court found that all but the ban on nudity were “on their face time, place and manner restrictions.”[24] The nudity ban, however, was examined under the same standard as the other restrictions, as per U.S. Supreme Court precedent.[25] Thus, according to the court, the restrictions' validity turned on “whether the government has reasonably relied on evidence establishing the restrictions are designed to serve a substantial government interest.”[26]

The court examined the evidence relied upon[27] by the legislature to determine if the government adequately demonstrated the evidence could be “reasonably believed to be relevant” to the legislative aims.[28] The court likewise examined the plaintiffs’ evidence to see if such evidence met the requisite burden of casting direct doubt on the government’s evidence.[29] In doing so, the court declined an invitation by the plaintiffs to weigh the evidence of each side in making its determination, instead concerning itself only with whether the evidence casted direct doubt on a particular provision’s justifications.[30]

The court first examined the restrictions on the viewing booth and buffer restrictions.”[31] The court found that the kinds of evidence relied upon by the legislature, which included judicial opinions, crime health and land use reports, anecdotal evidence and expert testimony, was of a kind already approved of by the U.S. Supreme Court.[32] Finding the government had, therefore, met its burden, the court turned to the plaintiffs’ evidence, which consisted primarily of testimony and studies that demonstrated that sexually oriented businesses were no more likely to cause crime than other types of businesses.[33] The court found that the plaintiffs’ evidence, even if credited, spoke only to crime, and not to the legislature’s other concerns, such as sanitation and health issues arising out of sexually oriented businesses.[34] Therefore, the plaintiffs’ evidence failed to cast direct doubt on evidence relating to those unaddressed issues.[35]

Turning to the nudity ban, the court noted that unlike the previously considered time, place, and manner restrictions, this provision regulated expressive conduct.[36] Citing U.S. Supreme Court precedent,[37] the court found that the evidentiary standard for time, place, and manner restrictions regarding sexually oriented businesses also applied to nudity bans.[38] The court determined the legislature relied on both anecdotal evidence of health issues arising out of nude dancing and numerous federal court cases allowing such bans.[39] As the court found once more that the plaintiffs failed to offer any evidence that cast doubt on either the decisions or the anecdotal evidence, the nudity ban was upheld.[40]

The court then looked at the operating hours restriction and ban on alcohol use.[41] The legislature again relied on both numerous judicial opinions and “extensive anecdotal evidence” to show that alcohol and late operating hours could be associated with the negative secondary effects the legislature sought to prevent.[42] As with the nudity ban, the court again found the plaintiffs offered nothing to challenge the government’s evidence.[43] The plaintiffs instead challenged the government’s reliance on studies attributing crime and property value shifts to sexually oriented businesses, relying on both studies and anecdotal evidence that offered conflicting views.[44] The court found the plaintiffs’ evidence did not rise to the level of casting direct doubt on the government’s evidence, but instead merely suggested that the legislature could have reached a different conclusion.[45] The court concluded “[t]he government does not need to conclusively prove that its restrictions will reduce negative secondary effects, but only that the evidence ‘fairly supports’ the rationale for the legislation.”[46]

Having dismissed the direct challenges to the restrictions, the court then addressed the plaintiffs’ suggestion to utilize the “proportionality test” introduced by Justice Kennedy’s concurrence in Alameda Books to examine whether the challenged statutes left “the quantity and accessibility of speech substantially intact.”[47] The court found the only two provisions that place “intrinsic limitations on speech” were the operating hours and nudity restrictions.[48] Citing U.S. Supreme Court precedent upholding nudity bans, the court concluded that such bans were clearly valid under a proportionality test.[49] Regarding the hours of operation limitations, the court determined that “businesses still will have an ample amount of time, 18 hours a day, to convey their erotic message,” thus placing only a minimum, and thus valid, burden on the speech in question.[50]

Ultimately, the court found “the government presented at least some evidence to support the legislature’s reasonable belief that the restrictions in question are designed to serve the substantial government interest in minimizing the negative secondary effects caused by sexually oriented businesses.”[51] Given the U.S. Supreme Court’s prior decisions in this area, the court found the legislation sufficiently justified, and not violative of either the U.S. or Missouri Constitutions.[52]

II. Legal Background

In reaching its holding, the court often relied on relatively recent U.S. Supreme Court cases regarding sexually oriented speech and conduct. Over the course of the last 50 years, the Court has on a few occasions addressed the notion of restricting certain kinds of sexually oriented speech and expressive conduct. The Court has repeatedly upheld such restrictions, though the use of the “secondary effects’ doctrine has not always garnered the full favor of the Court.

In City of Renton v. Playtime Theatres, the Court addressed a zoning restriction that prohibited “adult motion picture theaters from locating within 1,000 feet of any residential zone, single- or multiple-family dwelling, church, park, or school.”[53] Citing its prior opinion in Young v. American Mini Theatres, Inc.,[54] the Court held that such zoning restrictions constituted time, place, and manner restrictions.[55] However, even time, place, and manner restrictions would be presumptively invalid if they were content-based, rather than content-neutral.[56] Content-neutral time, place, and manner restrictions, however, “are acceptable so long as they are designed to serve a substantial governmental interest and do not unreasonably limit alternative avenues of communication.”[57]

The distinction turns on the restriction’s rationale. “[C]ontent-neutral” speech regulations are those that “are justified without reference to the content of the regulated speech,” while “content-based” speech regulations are those where the “government … grant[s] the use of a forum to people whose views it finds acceptable, but deny use to those wishing to express less favored or more controversial views.”[58] So long as the ordinances in question were aimed at combating the “the undesirable secondary effects of such businesses,” the Court wrote, they should “be reviewed under the standards applicable to ‘content-neutral’ time, place, and manner regulations.”[59] The Court likewise determined that governmental entities need not show evidence of local secondary effects to justify such restrictions.[60] Instead, it could rely on studies conducted elsewhere that demonstrated the problem.[61]

The U.S. Supreme Court addressed and upheld nudity bans on more than one occasion after the Renton decision. First, in Barnes v. Glen Theatre Inc., a plurality upheld a general ban on public nudity against a challenge by adult establishments.[62] Citing prior decisions including Renton and American Mini Theatres, Justice Souter concluded in a concurring opinion the ban was concerned only with secondary effects,[63] and therefore was unrelated to suppressing expression.[64] In City of Erie v. Pap’s A.M., the Court again examined “a public indecency ordinance that makes it a summary offense to knowingly or intentionally appear in public in a ‘state of nudity.’”[65] Citing American Mini Theatres, Renton, and Barnes, a plurality in Pap’s A.M. again upheld the ban and concluded such regulations on public nudity aimed at combating harmful secondary effects that were of the same character as the issues in Renton and American Mini Theatres.[66] As such, the same evidentiary standard that controlled in Renton controlled in Pap’s A.M.[67]

The Supreme Court of Missouri, in its decision, relied heavily on the court’s plurality opinion in City of Los Angeles vs. Alameda Books, Inc.[68] In that case, the Court upheld a ban that disallowed multiple adult oriented businesses in a single building.[69] The plurality noted previous precedent setting a relatively low evidentiary bar, finding regulations content neutral if the “‘predominate concerns’ motivating the ordinance ‘were with the secondary effects of adult [speech], and not with the content of adult [speech].’”[70] The Court found that the government only need show “that municipalities rely upon evidence that is ’reasonably believed to be relevant’ to the secondary effects that they seek to address.”[71]

In his concurring opinion, Justice Kennedy noted little evidence is required to meet the government’s evidentiary burden to justify a restriction, and counseled deference to local government. “The [government] knows [its jurisdiction] better than we do. It is entitled to rely on that knowledge; and if its inferences appear reasonable, we should not say there is no basis for its conclusion.”[72] The plurality determined that once the government’s burden is met, only evidence casting direct doubt[73] on each of the government's rationales would suffice to overcome it.[74] Absent such direct doubt, the court found the intermediate scrutiny test would be satisfied.[75]

In his concurrence in Alameda Books, Justice Kennedy was careful to note that “a city may not regulate the secondary effects of speech by suppressing the speech itself.”[76] To avoid a First Amendment objection, a municipality must seek to “decrease the crime and blight associated with certain speech…and at the same time leave the quantity and accessibility of the speech substantially undiminished.”[77]

III. Comment

The Supreme Court of Missouri in upholding the various restrictions on sexually oriented businesses continues a trend in the judiciary to treat sexually explicit speech somewhat differently than non-sexually explicit speech. Indeed, the court’s opinion in Ocello appears to be consistent with U.S. Supreme Court precedent. The Supreme Court in a number of plurality decisions has repeatedly endorsed the “secondary effects” doctrine when dealing with sexually explicit speech.

However, there does seem to be some reluctant acknowledgement that allowing such regulation is inconsistent with the First Amendment. Justice Kennedy in his Alameda Books concurrence acknowledged that the Court's history of labeling laws curbing sexually oriented speech as “content neutral” as something of a legal fiction.[78] Regulation of sexually explicit speech certainly seems like a regulation based on the content of the speech. As Justice Kennedy stated, “if the statute describes speech by content then it is content based.”[79]

Nonetheless, it is unlikely the Court will soon change its attitude toward the restriction of sexually-oriented speech. Even if the justices themselves have trouble agreeing on a rationale, a majority has repeatedly affirmed the validity of restrictions such as those here challenges. Legislatures have long been free to curb adult oriented businesses under that doctrine. It seems unlikely this ability will be taken away in the near future.

-Heath Hooper

[1] Ocello v. Koster, No. SC91563 (Mo. Nov. 15, 2011) (en banc), available at http://www.courts.mo.gov/file.jsp?id=50675. The West Reporter citation is Ocello v. Koster, 354 S.W.3d 187 (Mo. 2011) (en banc).
[2] Id. at 1.
[3] Id.
[4] Id. at 2-3
[5] Id at 1-2.
[6] Id. at 1-2.
[7] Id. at 2. Specifically, the plaintiffs argued that section 23.140 of the Revised Statutes of Missouri had been violated.
[8] Teitelman, C.J., Russell, Breckenridge, Fischer, and Price, JJ., and Francis, Sp.J., concurred in the judgment. Draper, J. did not participate. Id. at 41.
[9] Id. at 2.
[10] Mo. Const. art. III, § 35.
[11] Id. at 6.
[12] Id. at 2.
[13] Id. at 7-8.
[14] Id. at 8 (quoting Thompson v. Comm. on Legislative Research, 932 S.W.2d 392, 395 (Mo. 1996) (en banc). The court also found that because the statute assigning the fiscal note duties contained no non-compliance penalties, the provisions were meant to be “directory only.” Id. at 8-9.
[15] Id. at 10.
[16] Id.
[17] Id. at 2.
[18] Id.
[19] Id. at 12.
[20] Id. at 13.
[21] Id. at 14.
[22] Id. at 14-15 (quoting Semler v. Or. State Bd. of Dental Examiners, 294 U.S. 608, 610 (1935)).
[23] Id. at 15 (quoting United States v. O'Brien, 391 U.S. 367, 384 (1968)).
[24] Id. at 16.
[25] Id. (citing City of Erie v. Pap's A.M., 529 U.S. 277, 297 (2000)).
[26] Id.
[27] The court cited the legislature’s use of judicial opinions, crime, land use and health impact reports, expert testimony, and anecdotal evidence. Id. at 20.
[28] Id.
[29] Id. at 20. Apparently, the plaintiffs attached no evidence to their initial petition, but did attach such evidence in subsequent trial court motions. Id. at 20 n.7. The court did not resolve a disagreement over whether the plaintiffs’ evidence was properly before the court, finding instead that consideration of the evidence did not change the court’s judgment. Id.
[30] Id. at 21.
[31] Id.
[32] Id. at. 23 (citing City of Los Angeles v. Alameda Books, 535 U.S. 425, 434-39 (2002); City of Erie v. Pap's A.M., 529 U.S. 2777, 297 (2000)). That some of the evidence relied upon concerned non-Missouri locations was of no consequence, according to the court. Id. at 23-24.
[33] Id. at 24.
[34] Id.
[35] Id. at 25.
[36] Id.
[37] City of Erie v. Pap’s A.M., 529 U.S. 277, 296-97 (2000) (plurality opinion).
[38] Ocello, No. SC91563, slip op. at 26.
[39] Id. at 28.
[40] Id.
[41] Id. at 29.
[42] Id. at 30.
[43] Id. at 31.
[44] Id. at 31-32.
[45] Id. at 32.
[46] Id. at 34 (citing City of Los Angeles v. Alameda Books, 535 U.S. 425, 437-40 (2002)).
[47] Id. at 36 (quoting Alameda Books, 535 U.S. at 449-50 (Kennedy, J., concurring)).
[48] Id. at 38.
[49] Id. (citing City of Erie v. Pap's A.M., 529 U.S. 277, 294 (2000)).
[50] Id. at 38-39.
[51] Id. at 40.
[52] Id. at 40-41.
[53] 475 U.S. 41, 43 (1986).
[54] 427 U.S. 50 (1976) (plurality opinion). Young upheld a similar ban on adult theatres, but did not offer a united rationale for its decision.
[55] Renton, 475 U.S. at 46.
[56] Id. at 46-47.
[57] Id. at 47 (citations omitted).
[58] Id. at 48-49 (quotations and citations omitted).
[59] Id. at 49 (citing Young v. American Mini Theatres, Inc., 427 U.S. 50, 71 n.34 (1976)).
[60] Id. at 51-52.
[61] Id.
[62] 501 U.S. 560 (1991).
[63] Id. at 583-84.
[64] Id. at 586.
[65] 529 U.S. 277, 283 (2000).
[66] Id. at 296-97 (plurality opinion).
[67] Id. at 297 (plurality opinion).
[68] 535 U.S. 425 (2001).
[69] Id. at 429.
[70] Id. at 440-41.
[71] Id. at 442 (internal quotations omitted).
[72] Id. at 451-52 (Kennedy, J., concurring).
[73] The Ocello court acknowledged the Alameda Books plurality’s admonishment that bad data would not support the government’s burden. Ocello, No. SC91563, slip op. at 17-18. (citing Alameda Books, 437-39) (plurality opinion)). However, the court found that to challenge the government’s data, a plaintiff must “cast direct doubt on [the government’s] rationale, either [1] by demonstrating that the [government’s] evidence does not support its rationale or [2] by furnishing evidence that disputes the [government’s] factual findings.” Id. at 18 (quoting Alameda Books, 522 U.S. at 437-39) (plurality opinion)).
[74] Alameda Books, 522 U.S. at 438-39 (plurality opinion).
[75] Id.
[76] Id. at 445 (Kennedy, J., concurring).
[77] Id.
[78] Id. at 449.
[79] Id. at 448.