by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
Here’s how Judge Wynn summarized the case in his opinion in American Entertainers, LLC v. Rocky Mount:
Since 2002, American Entertainers has operated … a business known as “Gentleman’s Playground.” Gentleman’s Playground features exotic dancers, whose scant attire has varied throughout its sixteen years of operation. … [A] 2014 police investigation regarding Gentleman’s Playground caused Rocky Mount to seek to enforce against American Entertainers its sexually oriented business ordinance. …
Rocky Mount sought to enforce the Ordinance against American Entertainers after police investigators learned that dancers at Gentleman’s Playground were providing “adult live entertainment” within the meaning of the Ordinance. In response, American Entertainers filed a Complaint in the Eastern District of North Carolina challenging … the application and constitutionality of the Ordinance. …
American Entertainers made three claims about Rocky Mount’s sexually oriented business ordinance: that it “is unconstitutionally overbroad”; that it “violates the First Amendment and Equal Protection Clause by prohibiting from being owners, officers, or directors of a sexually oriented business individuals between eighteen and twenty-one years of age”; and that it “imposes an unconstitutional prior restraint by granting Rocky Mount’s police chief unfettered discretion to deny a permit.” The court rejected the first two of these claims, but it accepted the third.
As Judge Wynn explained, under the relevant case law, “Licensing schemes preclude expression until certain requirements are met, and therefore are prior restraints. … [Such a] licensing scheme is an unconstitutional prior restraint [if it] fails to provide adequate procedural safeguards.” Rocky Mount’s sexually oriented business ordinance, he said, failed to provide such safeguards:
[W]e agree with American Entertainers that the denial provision vests impermissible discretion in the police chief to choose on a case-by-case basis which laws apply in reviewing a particular application and thus is too broad to survive constitutional scrutiny. …
[I]t is unrealistic to expect the police chief to consider the entire body of multiple jurisdictions’ law within the Ordinance’s fifteen-day time limit. This subverts the core [requirements] that licensing standards be narrow, objective, and definite in order to guard against decision[s] to issue or refuse licenses turning on appraisal of facts, the exercise of judgment, and the formation of an opinion. [Citations and quotation marks omitted.]
The case was remanded to the trial court for further adjudication. Will “Gentlemen’s Playground” stay open? Will Rocky Mount amend its sexually oriented business ordinance? We’ll just have to wait and see.