That case was then transferred by the Judicial Panel on Multidistrict Litigation to the Middle District of Tennessee for consolidation with a series of other suits that challenged the constitutionality of the Tennessee statute. As the district court put it, Plaintiffs, in shotgun fashion, have challenged virtually every paragraph, jot, and title [sic: tittle] of the Ordinance as being either vague, overbroad, subject to unbridled discretion, or some other constitutional infirmity. Since their brief was not entirely clear as to which portions of the ordinance they wished to attack, we will direct our remarks to those portions of the ordinance that the district court considered to be before it for review. However, with the exception of a few specific provisions, the plaintiffs provided only conclusory statements to the district court in their trial brief, post-trial brief, and various motions. While plaintiffs' counsel stated at oral argument that plaintiffs wished to challenge the entire ordinance, they confined their attack before us to the manner in which the most recent amendment was enacted. Those portions divide into two categories: first, the six-foot buffer zone requirement of § 11-435(d), and second, those portions of the licensing procedures that the plaintiffs challenged unsuccessfully before the district court-the procedural mechanisms for the issuance of licenses under §§ 11-424 and 11-425, and the substantive standards for the issuance of licenses or permits under §§ 11-425 and 11-428. The plaintiffs argue that the requirement of a six-foot buffer zone does not satisfy the First Amendment test laid out in United States v.
City of Myrtle Beach, 953 F.2d 140, 145 (4th Cir.1991) (“It would seem quite difficult for D. Restaurant to demonstrate that the city's focus ․ was the eradication of the message conveyed by nude dancing, when the proponent of the dancing, itself, is unable to describe the nature of the message which the city's regulation is alleged to have targeted.”). This argument, however, is foreclosed by Justice Souter's concurrence in Barnes: Our appropriate focus is not an empirical inquiry into the actual intent of the enacting legislature, but rather the existence or not of a current governmental interest in the service of which the challenged application of the statute may be constitutional․ [L]egislation seeking to combat the secondary effects of adult entertainment need not await localized proof of those effects. A prohibition on contact certainly limits the spread of disease. at 2470 (Souter, J., concurring in the judgment), so too could the City of Chattanooga conclude that similar results obtain from similar concentrations of crowds, or from the viewing of nearly-nude bodies at an overly close proximity. In our view, the First Amendment requires only that [Chattanooga] refrain from effectively denying respondents a reasonable opportunity to open and operate an adult theater within the city.” Renton, 475 U.
They cite Sixth Circuit authority to the effect that the government must show that the legislature actually relied on evidence of secondary effects. City of Ann Arbor, 824 F.2d 489, 493 (6th Cir.1987); Keego Harbor Co. City of Keego Harbor, 657 F.2d 94, 98 (6th Cir.1981). Under this analysis, it is reasonable to conclude that the six-foot rule would further the state interests in the prevention of crime and disease. Justice Souter rejected the dissent's contention that the crime at issue in that case arose from the persuasive effects of the expressive activity, arguing, as discussed above, that the mere fact of concentration of crowds or the viewing of even a non-expressive nude body could provide the causal link. While in general there is no such thing as a First Amendment challenge for “underbreadth,” see R. However, “[t]he inquiry for First Amendment purposes is not concerned with economic impact. Accordingly, we join those courts that have determined that similar buffer-zone requirements are sufficiently narrowly tailored to be valid regulations under the First Amendment.
Ed.2d 504 (1991), required a holding that erotic dancing is expressive activity as a matter of law. Civil City of South Bend, 904 F.2d 1081, 1094 (7th Cir.1990) (en banc) (Posner, J., concurring), rev'd sub nom.
Such is the expressive content of the dances described in the record. At one extreme, such laws might prohibit a performance of the Dance of the Seven Veils in Strauss's Salome, “everyone's favorite example of constitutionally protected striptease.” Miller v.
The defendants argued both before this court and before the district court that the erotic dancing at issue here does not qualify as speech at all, citing dicta in City of Dallas v.
Before we review that argument, however, we must address the defendants' contention that speech is not implicated here at all.
The City made a number of legislative findings, most of which referred to the health risks inherent in the sexual activities that it believed to be commonplace in adult bookstores within Chattanooga.
The plaintiffs appeal from that judgment, and we affirm. The History of the Ordinance In 1986, the Chattanooga Board of Commissioners enacted an ordinance to regulate “adult-oriented establishments,” which were defined to include, inter alia, both “adult cabarets,” or public facilities that feature employees who expose their breasts, buttocks, or genitals to public view, and “adult bookstores,” or bookstores that also offer films or live entertainment that depict certain defined “sexual activities” or “anatomical areas.” Chattanooga, Tenn., Ordinance No. 4, 1986), codified at Chattanooga, Tenn., City Code § 11-422.
At the other extreme, such laws-including this one, see Chattanooga City Code § 11-435(a)-might prohibit activities that are indistinguishable from prostitution, which cannot seriously be said to involve more than the “kernel” of expression found to be insufficient in Stanglin. As we demonstrate below, however, we are not so inclined. With respect to crime, just as the State of Indiana could conclude that “the higher incidence of prostitution and sexual assault in the vicinity of adult entertainment locations results from the concentration of crowds of men predisposed to such activities, or from the simple viewing of nude bodies,” Barnes, 501 U. “[O]n its face, the governmental interest in combating prostitution and other criminal activity is not at all inherently related to expression.” Barnes, 501 U.
Therefore, if we were inclined to reverse the district court, we would remand with a suggestion that a record should be developed on this issue. The record demonstrates that the addition of a buffer zone to the ban on contact was necessary to achieve that goal, given the repeated violations of the no-contact rule and testimony to the effect that, without a buffer zone, it was difficult to determine if contact actually occurred or who was responsible. With respect to the third part of the O'Brien test, controlling precedent establishes that the goals of crime and disease prevention are content-neutral.
at 2468 (Souter, J., concurring in the judgment) (emphasis added).